The recent ruling by the Wisconsin Supreme Court on anonymity in a suit against the Madison School District was a tough call. We think the court made the right decision, though an argument exists that the court stopped short of genuine transparency.
The ruling, another 4-3 split by the court, came in regards to a suit filed in Dane County by a group of parents. The suit focuses on the district’s gender identity policies. We’re not going to get into those policies here. That’s not the issue we’re focusing on. What we’re looking at is the specific request by the parents to be anonymous in the suit.
Courts in the United States are, generally speaking, presumed to be open. It’s a core concept for American jurisprudence. The handling of court cases against colonial residents was one of the objections our country’s founders focused on because there was no real effort to ensure those reaching a decision in the cases were actually familiar with the community or its norms.
The openness of the courts extends to those who are filing cases in the vast majority of instances. Trials are open to the public. In theory, anyone can wander into a court and, provided they are not disruptive to proceedings, watch what happens.
The exception, clearly, is the juvenile court system. There is a reasonable judgement involved that juveniles should have a higher standard of privacy than adults. We know few people who have objections to that.
This, though, is a case where the line between juvenile privacy and adult transparency shifts depending on the stance one takes to view it. The parents who sued wanted to do so with anonymity, citing fears of retaliation or harassment against themselves or their children. That remains intact, at least as far as the public goes. The lower court hearing the suit allowed names to remain under seal as far as the public goes.
But the parents sought to use their children as a shield against even revealing their identities to the opposing counsel. That was a step too far for the court, which ordered them to be identified to those directly involved in the case. The state’s high court agreed.
Justice Brian Hagedorn proved the swing vote, joining the court’s more liberal justices in the majority. He also wrote the opinion, which rejected what he called a bid to “reformulate†Wisconsin law.
“While we protect certain vulnerable legal participants, such as children and crime victims, the business of courts is public business, and as such is presumed to remain open and available to the public,†he wrote. “In this case, the circuit court’s decision to withhold the parents’ identities from the public and the District, but not the District’s attorneys, was well within its discretion.â€
We think there’s a reasonable argument that those who file lawsuits should be revealed, that public identification is part of the process. That is, after all, the calculus the vast majority of people must consider when they elect to seek a court’s involvement in issues. The likelihood of negative effects for the children of those suing is, however, a real concern. We don’t have a problem with the district court’s order in this case.
But courts must tread very cautiously indeed when they withhold information from the attorneys who are arguing a case, especially when that information is as fundamental as the identities of those suing. A basic check on those involved in litigation is essential for opposing counsel. It can reveal patterns of litigious behavior to bolster an argument against a frivolous suit. It can raise questions of standing—whether those suing have a legal basis for doing so.
Withholding the names of those involved from even the opposing attorneys would have undermined their ability to perform such basic functions. Such an action could easily put the court’s thumb on the scales for one side.
We ripped into the court’s decision last week on open records. They deserved it. But this time that same court acted appropriately, acting in a way that preserves the rights of those in a court action while limiting the restrictions on the public to minimize effects for both the public and the children of those who sued.
