Vol. 71, No. 12,
December 1998
President's Perspective
Proposal Illustrates Lawyers'
Role in Forming Public Policy
By Susan R. Steingass
In
the October Supreme Court
Orders column we learned that the Director of State Courts, for the
Records Management Committee, filed a petition seeking adoption of a rule
protecting "juror confidentiality." Under these seemingly harmless
words, the petition sought far-reaching systemic changes in how jurors are
selected and serve. The petition was noticed for hearing before the Wisconsin
Supreme Court on Nov. 17, 1998.
The proposed rule required that jurors be identified by number, not name,
in all court records and proceedings. It provided that "personal juror
identifying information" (presumably name, address, place of employment,
marital status, children, profession and so on) could not be elicited during
voir dire. Attorneys could only obtain personal information on a good cause
showing that a fair and impartial trial could not be had without it.
Obviously, this proposed rule affects the constitutional rights of litigants
and the role of attorneys in the trial process, not to mention the openness
of trials and jury accountability.
Time was short. The Bar used the Internet and other means to alert attorneys
to this proposal. The Executive Committee met and recommended that the Board
of Governors vigorously oppose the petition. On Nov. 13 the board voted
overwhelmingly to do so.
Less than a week later, the Bar appeared before the supreme court to
oppose the petition. Among the others joining in opposition were the Bar's
Criminal Law and Litigation
sections, the Public Defenders' Office, the Milwaukee Bar Association, Milwaukee
County Chief Judge Michael Skwierawski and District Attorney E. Michael
McCann, the Wisconsin Academy of Trial Lawyers, the Wisconsin Civil Defense
Council, the Wisconsin Broadcasters Association, the Wisconsin
Newspapers Association, and the Freedom of Information Council.
The Wisconsin Clerks of Circuit Court Association, a juror whose name
and address had been requested after trial by a criminal defendant she and
her fellow jurors had convicted, and two judge members of the Records Management
Committee argued in support of the petition. In apparent realization that
the proposal would implicate the right to fair trial, the two judges at
the time of the hearing amended the petition to allow lawyers to obtain
personal identifying information for purposes of voir dire.
That amendment was not enough to quiet the opposition. The State Bar's
brief argued that the proposed rule would impact constitutionally protected
rights, and that it was deeply and unalterably at odds with Wisconsin's
public policy of openness, as enacted by our Legislature and enforced by
our courts. We argued that there was no demonstrated need for these serious
encroachments on the rights of litigants and that any proposal with the
potential to affect such bedrock principles should have been made only after
input from attorneys, the public, judges, the press, and others.
The Records Management Committee was created in 1984 by the Director
of State Courts and charged in part with recommending statute or rule changes
relating to the management of court records. Because juror questionnaires
and information gathering is done by records the court keeps, the committee
regarded this proposal as within its purview.
The Records Management Committee, without question, does extremely valuable
work and properly proposes record-related rule changes, establishes standards
and procedures for effective management of records, develops standards to
ensure the proper and efficient use of advancing technologies, and recommends
guidelines for retention of court records.
Though the committee is to be commended for its efforts elsewhere, the
fact remains that it is composed of five judges, 10 court clerks and administrative
personnel, and not one single practicing attorney. That may explain why
this proposed rule, thought to accomplish a record change, in fact severely
impacts larger principles and legal tenets at the heart of the trial process.
After argument, the supreme court, in accord with its own commitment
to openness, deliberated in the presence of all who cared to stay and listen
- a substantial number as it turned out. After a fairly short debate,
the court unanimously rejected the petition. However, several justices continued
to struggle with some juror concerns raised during the hearing.
The court reserved for later deliberation what, if anything, can and
should be done to allay juror perceptions to the extent they exist.
One thing is for sure. We come away from this one-month whirlwind of
proposal to decision, with several lessons learned. Perhaps most important
among them is that basic constitutional principles and our policy of openness
can never be sacrificed to administrative concerns. We also were reminded
how many committed lawyers we can rally on very short notice to let our
position be effectively known. As important as anything else, we were reminded
that lawyers need to be in on public policy formation. The supreme court
and the Director of State Courts have offered the Bar two seats on the Record
Management Committee. This will help ensure that the point of view of practicing
lawyers is heard before rules are proposed.
None of this means that we can forget to listen to nonlawyers in general
and jurors in particular. We need to consider what we ask jurors to do and
what fears they bring to their task. We must respond in a way that acknowledges
their concerns yet preserves for all litigants the right to information
necessary for a meaningful voir dire and post verdict relief, in zealous
protection of the constitutional right to a fair trial by an impartial jury.
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