State chief justice sides with majority, but gives map to news media for next time

Thursday, March 2, 2000

If a judge is hoping to avoid publicity, she should write concurring opinions.

In most cases, after all, nearly all of the attention is focused on the judges who write the majority opinions, the opinions that explain who wins. The rest of the attention usually falls on the judges who dissent. In their opinions, these judges attack the logic, motives or intelligence of the majority, frequently in sharp language. Even though these judges’ arguments aren’t carrying the day, this approach ensures they are at least heard.

In contrast, concurring opinions usually are cautious and polite. Concurring judges agree with the majority’s conclusions but not necessarily its reasoning. Their opinions are most important for determining which side has the most votes; rarely do they have any significant long-term effect.

A concurrence written by Wisconsin Supreme Court Chief Justice Shirley S. Abrahamson, however, might be one of those rare opinions. In her opinion, Abrahamson laid out a map for trial court judges to follow to ensure public and media access to pre-trial discovery materials.

In State of Wisconsin ex rel. Mitsubishi Heavy Industries America v. Circuit Court for Milwaukee County, et al., the court’s majority held that neither the public nor the media has a right to see unfiled discovery information. The court rejected the efforts of the Milwaukee Journal-Sentinel to obtain deposition transcripts, videotapes and exhibits that had been generated in litigation concerning a fatal construction accident. The accident — which involved a construction crane — occurred last July at Miller Park, the new Milwaukee baseball stadium largely funded by taxpayers.

The widows of the three ironworkers killed in the calamity sued Mitsubishi and others, seeking compensatory and punitive damages. As pre-trial discovery in the case began, the newspaper sought access to transcripts of some of the depositions. The trial judge granted the newspaper’s request, holding that access could be denied only upon a showing of good cause. On appeal, the appeals court affirmed the trial court’s order.

The state Supreme Court reversed. The court first held that the common law’s presumption of access to judicial records did not apply to discovery materials that had been neither filed in court nor used as evidence. The court then rejected the argument that the First Amendment created a right of access. Emphasizing that the litigation involved only private parties, the court said that the deposition transcripts and other materials are property “wholly private to the litigants.”

In her concurrence, Abrahamson reluctantly accepted the “narrow” holding of the court. In doing so, however, she urged the newspaper and trial court judge to try again and suggested an approach that would withstand scrutiny from her brethren.

Trial court judges, Abrahamson said, have a virtually unlimited right to order that discovery materials be filed with the court. Once filed, this information is presumptively available to the public, unless a party can show good cause justifying closure. Abrahamson therefore suggested that the newspaper ask the judge to order that the deposition transcripts in the Mitsubishi case be filed. The judge then could release as much or as little of the material as he deemed appropriate.

To help protect such disclosure from challenge, Abrahamson chipped away at the underpinnings of the majority’s decision. First, she dismissed the notion that pre-trial discovery between private parties is beyond the public’s interest. The public, she noted, pays for the courts that govern this discovery. Moreover, she said, the public has an interest in all stages of judicial proceedings, especially when the issue in the case is of substantial public interest.

Second, Abrahamson trivialized the majority’s reliance on whether discovery information has been filed with a court. She noted that, until 1986, all deposition transcripts were required to be filed and presumably were available for public inspection. The only reason this practice was halted, she said, was to ease the filing burden on circuit clerks. Regardless of whether deposition transcripts are filed, Abrahamson concluded that they remain under the custody and control of the court.

Third, Abrahamson outlined a safe harbor from which trial court judges can in essence ignore the majority’s holding. If a party seeks access to discovery information under the state’s rules of civil procedure rather than under the common law or the First Amendment, the majority’s decision is irrelevant, Abrahamson implied. Under these rules, she reminded everyone, access to discovery must be presumed and can be denied only upon a showing of good cause.

Abrahamson’s opinion, of course, is of little help when a trial judge is reluctant to grant access. Judges have considerable discretion in determining when enough good cause exists to justify secrecy, and media challenges of this discretion are unlikely to succeed. The Wisconsin judicial system therefore undoubtedly is more closed than it would have been had its Supreme Court found common law and First Amendment rights of access.

That system, however, is considerably more open with Abrahamson’s concurrence than it would have been without it.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Badger & Lee and a legal correspondent for the First Amendment Center.