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Justices consider removal of victims’ names from filings (UPDATE)

By: Eric Heisig//September 22, 2014//

Justices consider removal of victims’ names from filings (UPDATE)

By: Eric Heisig//September 22, 2014//

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After a day of debate, Wisconsin justices were not ready Monday to approve a measure disallowing the use of victims’ names in certain court filings.

But they did decide to move forward on a major change to their own writings, unanimously approving a “stopgap measure” to change the state Supreme Court’s style guide to disallow the use of victims’ full names in its opinions. The court will recommend the Court of Appeals do the same.

The decision came after more than two hours of debate on whether to approve a related petition, which was put forth by the Wisconsin Judicial Council and was the subject of a public hearing that took up most of the day.

The proposal would require attorneys and judges to stop using the names of victims in appellate paperwork that is posted online, such as briefs and opinions from the Court of Appeals and state Supreme Court. Instead, attorneys would have to use pseudonyms or a victim’s initials.

The change would apply to all cases except homicides, and there would be ways for an attorney to ask a judge to allow them the use of a name if it was germane to the issue on appeal.

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The justices decided Monday they wanted more time to consider voting on the measure, however, to allow their staff members to research how other states handle the issue.

“It’s better to make our product as close to bulletproof as possible,” Justice Michael Gableman said.

The idea, according to proponents, is to not re-victimize someone who has already undergone a traumatic experience. Supporters of the change say the filings can impede a victim’s ability to get a job or to move past an experience.

“We’re trying to prevent the accidental disclosure of information,” Judicial Council staff attorney April Southwick said Monday.

But despite strong support expressed during the public hearing, a few justices seemed concerned that the accidental use of a name in a filing or brief could then lead to sanctions or discipline.

“I didn’t realize it’s possible there would be a fine,” Justice Patrick Crooks said.

Justice David Prosser expressed concern that attorneys and judges who file in cases that have a public interest – such as former Milwaukee Bucks basketball star Glenn Robinson being robbed outside a bar in 1999 – would not be able to use the name.

“This is a profound change,” Prosser said. “It really calls into question many of the things I would have taken for granted.”

In the end, those concerns – as well as concerns from Justice Pat Roggensack that the proposal may be best left to the Legislature – were enough to override calls from Chief Justice Shirley Abrahamson and Ann Walsh Bradley to address the issue quickly so change can be implemented by Jan. 1.

“I find it interesting,” Abrahamson said, “that this is viewed as such a huge, substantial change.”

Indeed, during the hearing, many who spoke in favor of the proposal posited it as a narrow one.

Southwick told the court several times during the public hearing that the exceptions do not outweigh the main thrust of the proposal.

Talisa Tichenor, a Beloit resident who testified in favor, said information about the severe beating she withstood at the hands of an ex-partner still comes up online, due to it being crystallized in Court of Appeals and Supreme Court opinions. She said the sight of it is “devastating” and always worries that it will affect her chances of getting a job, even though it happened 12 years ago.

“I would really like to get past that,” Tichenor said.

Ellen Henak, a longtime appellate attorney and member of the Wisconsin Association of Criminal Defense Lawyers, was the only person to speak against the measure. She said she is concerned certain things would be lost from the public eye – such as a police officer who abuses his or her power – by not using names.

She also pointed out that certain cases, such as domestic violence ones, often end up with both parties charged. In that case, it is unclear who the victim is.

But proponents of the change emphasized that there still would be options, as attorneys who feel a victim’s name needs to be used can petition the court to do so.

Greg Weber, director of the Department of Justice criminal appeals unit, said the change needs to be made for regular citizens.

“I’m not worried so much about the police officer,” Weber said. “It’s written for the babysitters, written for the child sexual assault victims.”


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