Free Speech

Secret Litigation Over Secret City Council Records

A very unusual Wisconsin case.

|The Volokh Conspiracy |

From the Milwaukee Journal Sentinel (Bruce Velmetti):

A Racine County judge said he's only sealed one case in his career. The case he chose to hide from taxpayers and Racine city residents? A petition for access to public records.

The unusual case, now on appeal but also absent from the Court of Appeals web-based index, has only come to light because a maverick Racine Common Council member [Sandy Weidner] got tired of what she calls growing secrecy and concentrated power in her local government.

"To me, it's a huge issue," said … Weidner. "I'm willing to defy the judge's order that it's sealed." …

Weidner has represented Racine's 6th District for nearly 20 years. Last year, she was running for mayor and being critical of the status quo, when, in August, the city attorney, Scott Letteney, requested all 15 council members to attend a meeting of the Executive Committee, normally composed of the city attorney, mayor, heads of three standing committees and one other At the closed session, Weidner says, Letteney gave a PowerPoint presentation of about 30 slides, most of which were of emails she had sent to people outside city government from her city email account. Some were of emails two other aldermen sent.

Letteney implied that the emails contained confidential information and was seeking the committee's vote to seek an advisory opinion from the city's Ethics Board on whether the aldermen's actions violated the city's ethics ordinance.

"He wanted to publicly humiliate me. Said he's tried everything in his power to 'monitor my behavior,' " she said. The problem, she said, is that nothing she sent to constituents, in her experience, was confidential.

"To him, anything that comes into or out of the city attorney's office is covered by the attorney-client privilege," she said, a far more expansive interpretation than the law allows.

Weidner sought copies of the presentation, and filed a Wisconsin Open Records Law case to get them—and then, Judge Eugene Gasiorkiewicz sealed the case, in his words, "because of the nature of the action. It's one that shouldn't be open. I made a public policy determination." And now Widner has apparently gotten a sealed motion from the city, which will be heard tomorrow morning, asking that she be sanctioned for violating the secrecy order.

Seem pretty sus, as kids these days put it. Even if there is some confidential material, both state law and First Amendment law generally calls for it to be redacted (with as few redactions as possible), rather than for the whole case to be sealed top to bottom: "The public cannot monitor judicial performance adequately if the records of judicial proceedings are secret." Jessup v. Luther (7th Cir. 2002). I hope the case will be promptly unsealed, so we can see what's really going on.

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  1. “And now Widner has apparently gotten a sealed motion from the city, which will be heard tomorrow morning, asking that she be sanctioned for violating the secrecy order.”

    You see, this is what a Spartacus moment looks like (minus the crucifixion, but that applies only to slaves and outsiders, not citizens).

    1. Or a letter from Birmingham jail.

  2. Is there any requirement for sealed judicial proceedings to be listed anywhere? Sure would be nice to find out when/where they exist.

    1. Under the Cone of Silence.

  3. If ever there was a time that calls for Double Secret Probation.

  4. At least according to this article from the Wisconsin bar, sealing requires a statutory justification or a finding that secrecy serves the administration of justice and any order must be as narrow as possible. See https://bit.ly/2xz69uI (linking to “Court Filings: New Rules to Protect Confidential Information in Wisconsin Court Records” on http://www.wisbar.org)

    Only possible justification for the broad order may come from a statute that protects the entire process for claims of ethical violations. Sometimes these investigations are protected by broad secrecy provisions because of the negative impact that can arise from the mere fact that a claim has been filed, even if it’s ultimately proven baseless. Typically, if the claim is meritorious disclosure will be allowed. But until there is a finding, broad secrecy protections apply. If such a statute exists here, the broad order might make sense — except that if the subject of the complaint is advocating for openness, as appears to be the case here, this does not make sense either.

    1. Reminds me of the case where lawyers were claiming lawyer-client privlege so as to keep something hidden, and the judge had to remind them that was to protect the client, not the lawyers.

  5. This is so far outside all norms that it should result in a formal judicial censure. Even if the lawyer resisting sealing is flat-line clueless, no judge should sign such a blatantly unconstitutional order.

  6. Congratulations to Bruce Vilmetti for making a widely read national outlet. The MJS is truly representative of its comoonity.

  7. Sometimes things aren’t sooooo bad here…

    Democratic Republic of the Congo – On Sep 22., around 1830, suspected rebels of the Allied Democratic Forces (ADF) led an attack in the city center of Beni, killing at least 21 people, including 17 civilians and four soldiers. According to witnesses, the attackers opened fire using heavy and light-caliber weaponry on the streets of Beni, targeting people at random. The many assailants, who included women and young children, also used machetes on their victims.

    1. Is there a cool website that will tell me about the most awful things happening in the world on a certain date so I can denounce any exposure of any other individual awful thing by bringing it up?

      I am genuinely interested here, since if there is not I would be interested in creating such. Any others so interested should contact me, only accredited investors allowed.

    2. It is our protections against government abuse that makes things not so bad here to begin with, such as this very issue.

  8. I can imagine Federal activity of such legitimate national security importance that it can’t be meaningfully discussed, even redacted (or that the redactions would make it unintelligible and pointless), even if so many NS claims are bollocks.

    (Say, oh, details of stealth technology in 1986, details of the launch procedures for the Minuteman system, stuff like that.)

    I can’t imagine what the hell a City Council meeting could contain that could be worthy of that.

    1. The pettier the stakes the more vicious the politics.

      I hate to say it but as bad as the US Senate is looking now, there are scores of city councils across the country saying “hold my beer.”

      1. Nothing good has ever followed a request to “hold my beer”.

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