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Courts should let a little sunlight in

EDITOR’S NOTE: Critics who complain that the public has become apathetic about politics got reason to think twice this summer when state lawmakers briefly considered passing a budget provision that would have greatly rolled back Wisconsin’s open-records laws.

The resulting hue and cry had elected officials rushing to have the offending legislative language removed before the two-year budget bill was signed into law. But that was only the first in a series of what advocates for government transparency consider to be attacks on the state’s open-record laws.

The state’s Public Records Board cast off its usual status as an obscure governmental body in August when it voted to cut back on rules requiring state officials to maintain text messages, Facebook posts and other sorts of so-called transitory messages that are related to public business. Meanwhile, questions remain unresolved over whether the state’s judicial branch is even subject to open-records laws.

Political opponents of three Supreme Court justices have recently been rebuffed in their attempts at obtaining various court documents. Even though courts may have fulfilled such requests in the past, they were not bound to do so – as at least two members of the state’s high court have noted – by any specific ruling or law.

This week, Ed Fallone, a law professor at Marquette University, argues that the judiciary should be no less subject to the state’s open-records laws than is any other branch of government.

By Ed Fallone

Ed Fallone is an associate professor of law at Marquette University.

Ed Fallone is an associate professor of law at Marquette University.

Transparency is the core value of a democratic society. In a democratic self-government, voters have the power to select and reject those who will wield the power of government.

The power of the vote is only meaningful if the voters have information upon which to act. This is where transparency in government comes in.

In the case of the governor, the voters need to know whether their tax dollars are being steered towards political donors and whether state resources are being used to advance partisan political purposes. This is why the prospect of executive-branch officials communicating through private emails, and taking other steps to hide the true reasons for executive decisions from the public, is so troubling.

In the case of the state Legislature, the voters need to know whether lawmakers are exercising their power independently. Our representatives in the state legislature shouldn’t act as mere conduits for self-serving laws drafted by special-interest groups. Wisconsin was a leader, through the creation of the Legislative Reference Bureau in 1901, in our nation’s history in insisting that legislators draft their own laws.

The role of our state judges, in enforcing the value of transparency in government, is vital. This role has two components. First, it is essential that our state judges enforce transparency on the other two branches of state government. Second, our state judges must comply with the need to be transparent within their own judicial branch.

Our Wisconsin Supreme Court has displayed a worrisome lack of respect for our state’s laws mandating open records and open meetings. In Ozanne v. Fitzgerald, 2011 WI 43 — the first Act 10 case — the court decided that the Open Meetings Law violated the separation of powers, although that argument had never been presented in the lower courts. More recently, in New Richmond News v. City of Richmond, 2015 WI 106, three justices on the court were prepared to read federal law expansively in order to prevent the application of the Open Records Law.

It also appears that some justices on the Wisconsin Supreme Court do not view the Open Records Law as applying to their own offices. Justice Rebecca Bradley has not complied with requests to disclose her court calendar, while Justice Michael Gableman has issued a statement questioning whether the Open Records Law even applies to the judiciary.

The recalcitrance of these justices is surprising. None of the documents sought through an open-records request relates to judicial deliberations. The requests seek records of meetings and contacts relevant to the official administrative duties of the judges. Much of the job of the Wisconsin Supreme Court involves managing the state’s court system, and there is no justification for placing these activities behind a veil of secrecy. In addition, judicial contacts with donors and special-interest groups are particularly relevant to the independence of the courts.

Writing in 1913, Louis Brandeis said that “sunlight is the best disinfectant.” His words apply equally to all branches of government, including the judicial branch.

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