On Oct. 9, 2023, the Wisconsin Supreme Court held a lively, 35-minute discussion on whether to allow the deletion of certain eviction records from Wisconsin’s online court records system. I’ll get to that topic in a moment; what’s remarkable is that we were able to witness this discussion at all.
In 2012, a divided Wisconsin Supreme Court voted to close its administrative conferences. These are conferences where the court considers changes to rules that affect the court system, procedures used in civil and criminal matters, and ethics rules for attorneys and judges.
Arguing in favor of closing the conferences, then-Justice Patience Roggensack opined that to “sit out here in public and philosophize … is really not the best use of our time,” as quoted by Wisconsin Watch.
The late Justice Patrick Crooks countered, “I think it’s vitally important that the public be able to see what we do and how we do it. . . . This would be a major mistake, to close what has been open.”
In the end, the justices voted to close the court’s administrative conferences on a vote of 4-3. But this August, on another 4-3 vote, the court’s newly constituted majority decided to again make these conferences open to the public. (Administrative conferences do not include deliberations on cases, which are not and have not been open.)
This was a welcome change. As intimated by Justice Crooks, open administrative conferences give the public insight into the work of the court and the basis for its decisions on rules petitions.
That was apparent during the court’s open discussion of the rule change proposed by tenants rights advocates to shorten the record retention period for court records of evictions where no money judgment is entered from 20 years to one year. (Not only was the meeting in open session, but it was streamed on WisconsinEye and is still available for viewing.)
The advocates said the change was needed to make rental housing more available, because landlords frequently rely on online court systems when deciding whether to lease an apartment or other housing. They also noted that the impact of the current retention rule disproportionately affected Black and Latino households.
The court also heard from opponents of the change, including the Apartment Association of Southeastern Wisconsin. In their discussion, court members considered the administrative burden to clerks and the court system that the change would cause, citing their own experiences, as well as the impacts to transparency and access to records in general.
Reasonable minds can disagree on the impacts of the change to the eviction record rule. But it was refreshing to see the court’s members consider the competing issues and interact with one another on a matter of substance.
Open administrative conferences may also result in better decision-making. Chief Justice Annette Ziegler joked at the beginning of the meeting that if the group were in closed conference, the meeting may “take about five minutes,” which was apparently the norm. In the open session on the eviction record change, the court’s members had a much longer and more thoughtful discussion.
Another open conference on an administrative petition is scheduled for December 11, 2023. This time, the issue under discussion is the proper standard for when appellate courts can stay a lower court decision pending appeal.
For just the second time in more than ten years, the public will be welcome to sit in.
Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a nonprofit, nonpartisan group dedicated to open government. Christa Westerberg is the council’s vice president and a partner at the Pines Bach law firm in Madison, Wisconsin.
shouldn’t this be “might”?