Doe v. Madison Metro. Sch. Dist.
|2021 WI App 60,399 Wis.2d 102,963 N.W.2d 823
|22 July 2021
|Appeal No. 2020AP1032
|John DOE 1, Jane Doe 1, Jane Doe 3, Jane Doe 4, John Doe 5 and Jane Doe 5, Plaintiffs-Appellants, John Doe 6, Jane Doe 6, John Doe 8 and Jane Doe 8, Plaintiffs, v. MADISON METROPOLITAN SCHOOL DISTRICT, Defendant-Respondent, Gender Equity Association of James Madison Memorial High School, Gender Sexuality Alliance of Madison West High School and Gender Sexuality Alliance of Robert M. LaFollette High School, Intervenors-Defendants-Respondents.
|Court of Appeals of Wisconsin
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Rick Esenberg, Luke N. Berg, and Anthony F. LoCoco of Wisconsin Institute for Law & Liberty, Milwaukee, and Roger G. Brooks of Alliance Defending Freedom, Scottsdale, Arizona.
On behalf of the defendant-respondent and intervenors-defendants-respondents, the cause was submitted on the brief of Emily Feinstein and Adam Prinsen of Quarles & Brady LLP, Madison, and Barry J. Blonien of Boardman & Clark LLP, Madison.
Before Blanchard, Kloppenburg, and Nashold, JJ.
¶1 Several parents of students attending schools in the Madison Metropolitan School District (collectively, the parents) commenced this action by filing a complaint in which they identified themselves only by "John/Jane Doe" pseudonyms, along with a "motion to proceed using pseudonyms." The circuit court denied the parents’ motion and ordered the parents, if they wished to proceed with the action, to file under seal an amended complaint stating their names and addresses (information that we refer to as their "identities"). The court explained that it would approve a protective order sealing the parents’ identities from the parties and the general public and permitting disclosure of their identities only to the court and the attorneys for the parties; the court memorialized its decision to allow filing under seal in that manner in a written order. The parents appeal the written order, which we refer to as the "order to file under seal," arguing that the court erred in requiring them to disclose their identities to the attorneys for the parties when filing their amended complaint. We conclude that the parents fail to show that the circuit court erroneously exercised its discretion in issuing the order to file under seal. Therefore, we affirm.
¶2 The parents brought this action for declaratory and injunctive relief under WIS. STAT. §§ 806.04 and 813.01, challenging the District's "Guidance & Policies to Support Transgender, Non-binary & Gender-Expansive Students."1 The parents allege that the Guidance, by allowing students to "change gender identity" and select new names and pronouns for themselves "regardless of parent/guardian permission," interferes with the parents’ "fundamental right" under Article I, § 1 of the Wisconsin Constitution and the Fourteenth Amendment to the U.S. Constitution to "direct the upbringing" of their children.2
¶3 The complaint filed by the parents identifies the parents only by pseudonyms. The complaint alleges that this is necessary "to protect [the parents’] privacy and the privacy of their minor children, and to prevent retaliation against them for raising this sensitive issue." The parents also filed a "motion to proceed using pseudonyms," and a supporting brief and affidavits, requesting permission to proceed using only pseudonyms in all filings and reiterating their argument that bringing this action exposes them and their minor children to a "substantial risk of harassment or retaliation." In their motion, the parents explained that they were submitting the affidavits with their names redacted and offered to submit "the original, unredacted versions" of the affidavits for the circuit court's in camera inspection "[i]f this Court needs to know the Plaintiffs’ identities."
¶4 We relate in some detail the ensuing proceedings pertinent to the circuit court's adjudication of the parents’ motion to provide context for our analysis of the parents’ appeal of the order to file under seal.
¶5 On May 26, 2020, the circuit court held a hearing at which it heard oral argument and issued its decision on the parents’ motion. At the hearing, the circuit court denied the parents’ "motion to proceed using pseudonyms." The court explained that the statutory procedure for protecting a party's identity under Wisconsin law is a motion to seal and that Wisconsin law does not authorize plaintiffs to litigate a case without filing, even under seal, a court record that includes their identities. The parents agreed that there is no Wisconsin case law authorizing the parents to proceed using pseudonyms in the manner requested in their motion, that any federal law on the issue is "trumped by applicable state statute," and that "the Wisconsin legislature and the Wisconsin courts control" the analysis in this case. The parents argued that the circuit court should nonetheless apply a balancing test, which they represented is used in federal courts, that weighs "the need for anonymity versus the need [for the identifying information] on the other side." The parents asserted that their motion should be granted because "this case is going to turn on whether the policy is constitutional" and "there is no need [for] the other side" to have the identifying information.
¶6 The circuit court explained that it was "not comfortable transporting into Wisconsin jurisprudence" the purported "practice of the federal courts in similar circumstances," and that Wisconsin's "longstanding practice of the public's having a right to know under the public records law and the common law ... militate dramatically against allowing the parties [to tell] no one who they are" when they file an action with the court. The court therefore ordered the parents, if they wished to proceed with the action, to file an amended complaint stating their identities (the "amended complaint").
¶7 The circuit court explained, in addition, that it has the "authority" and "discretion" to protect the parents’ identities as revealed in the amended complaint under seal. It acknowledged Wisconsin's "longstanding" public policy of open court records but explained that "the public's right to know [who is using its courts] is balanced off against situations where that right is outweighed by other concerns." The court found that the parents had made a "demonstrable factual showing" that unsealed public records containing their identities posed a risk that the parents "would likely be subject to threats and intimidation, which would be wholly inappropriate and frustrate the orderly function of the court case." Accordingly, the court ordered the parents, if they wished to proceed, to file an amended complaint under seal and ordered that pseudonyms be used in unsealed documents "during the course of litigation." The court specified that its contemplated protective order sealing the parents’ identities in the amended complaint would permit disclosure of the parents’ identities only to the court and to the attorneys for the parties.
¶8 The parents requested that the circuit court's order limit access to their identities as revealed in the amended complaint to the court and to a "single attorney from the [D]istrict and a single attorney from the intervening defendants." The court rejected that request, explaining:
¶9 In the alternative, the parents asked the circuit court to order that access to their identities as revealed in the amended complaint be limited to the court and the attorneys for the District, thus barring disclosure to attorneys for the intervenors. The court rejected this request, explaining that this would make counsel for the intervenors "essentially a second class behind [counsel for the District]," deny counsel for the intervenors "information that [counsel for the District] can be trusted with," and impede the ability of counsel to work together.
¶10 The parents took the position that the circuit court's order was insufficiently protective because it would allow the law firms for the District and the intervenors to learn the parents’ identities and "every additional person who knows who they are creates additional risk that their name[s] will be even accidentally leaked." The court asked the parents whether there was any reason to believe that any attorneys in this case would not comply with the court's order and counsel assured the court that the parents had no reason to "distrust" the attorneys and in fact had "every reason" to believe that the attorneys would "make every effort to preserve the plaintiffs’ anonymity and follow a court order." The court found that all of the attorneys involved in the litigation could be expected to honor the court's order and, accordingly, rejected the parents’ request to limit disclosure to fewer than all counsel for the parties. The court determined that its order would adequately protect the parents’ identities and guard against potential "fallout" for the parents and their children in pursuing this action.
¶11 At the conclusion of the hearing, the circuit court directed counsel for the parents to draft a protective order under which the parents’ identities as revealed in the amended complaint would be sealed "for attorneys’ eyes only," such that the parents’ identities would not be disclosed to the parties or to
¶12 On June 3, 2020, the circuit court issued the written order to file under seal. That order reads as...
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Doe v. Madison Metro. Sch. Dist.
...the court of appeals issued a decision on the confidentiality issue affirming the circuit court. Doe 1 v. Madison Metro. Sch. Dist., 2021 WI App 60, 399 Wis. 2d 102, 963 N.W.2d 823. The parents then turned to this court again, and we granted their petition for review.II. CONFIDENTIALITY¶11 ......