Estates of Zimmer, Matter of

• Decision Date: 25 May 1989
• Docket Number: No. 88-0390,WISC-TV--CHANNEL,88-0390
• Citation: 151 Wis.2d 122,442 N.W.2d 578
• Parties: , 16 Media L. Rep. 1868 In the Matter of the ESTATES OF Sally Jo ZIMMER and Hans P. Zimmer, Deceased.3/MADISON, the Capital Times Company, and the Wisconsin Freedom of Information Council, Appellants, v. Michael MEWIS, Personal Representative of the Estate of Sally Jo Zimmer and Hans P. Zimmer and Peter Zimmer, Respondents.
• Court: Wisconsin Court of Appeals

Page 578

442 N.W.2d 578

151 Wis.2d 122, 16 Media L. Rep. 1868

In the Matter of the ESTATES OF Sally Jo ZIMMER and Hans P.

Zimmer, Deceased.

WISC-TV--CHANNEL 3/MADISON, the Capital Times Company, and the Wisconsin Freedom of Information Council, Appellants, v. Michael MEWIS, Personal Representative of the Estate of

Sally Jo Zimmer and Hans P. Zimmer and Peter

Zimmer, Respondents.

No. 88-0390.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 6, 1989.

Opinion Released May 25, 1989.

Opinion Filed May 25, 1989.

Jonathan C. Aked and Linda M. Clifford, and LaFollette & Sinykin, on the brief, Madison, for appellants.

James W. Harris and Paula K. Doyle, and Larkin, Jackson, Harris & Glass, S.C., on the brief, Dodgeville, for respondents.

Before GARTZKE, P.J., and DYKMAN and EICH, JJ.

EICH, Judge.

The Wisconsin Freedom of Information Council, the Capital Times Company and WISC-TV (collectively, the "news media") appeal from an order approving a settlement in a probate proceeding and directing that the terms and conditions of the settlement remain confidential. The issue is whether sec. 59.14, Stats., which requires clerks of circuit court and registers in probate to make all records in their custody open and available to the public, and the Wisconsin Open Records Law, secs. 19.31 to 19.37, Stats., ¹ require disclosure of the terms of the settlement. We believe they do, and we therefore reverse the order.

The facts are not in dispute. Sally Jo and Hans Zimmer were murdered on or about May 23, 1983. Shortly thereafter, their adopted son, Peter Zimmer, then fourteen years old, entered a plea of no contest to a juvenile delinquency petition alleging that he killed them. ² He was ordered institutionalized until his eighteenth birthday.

The Zimmers left no wills, and the probate court eventually determined that Peter Zimmer was their sole heir. As such, he normally would be entitled to inherit their entire estates. ³ However, sec. 852.01(2m)(a), Stats. (1983-84), prohibits one who "feloniously and intentionally" kills another person from inheriting any part of that person's estate. Because sec. 852.01(2m)(b), as it read at the time, required proof of a judgment of conviction in order for the prohibition to attach, a question arose as to Zimmer's eligibility to inherit the estates, for juvenile delinquency proceedings do not result in criminal convictions. ⁴ In April, 1987, the personal representative of the parents' estates brought an action to determine heirship, alleging that Zimmer, having "feloniously and intentionally" killed his parents, should be prohibited from inheriting under sec. 852.01(2m), Stats. Zimmer opposed the petition and requested a jury trial, which was scheduled for later in the year.

In June, the parties reached a settlement in the case. They filed the settlement agreement with the court and sought its approval. The agreement purportedly resolved all disputes between the personal representative and Zimmer and proposed a final distribution of the two estates. It also contained language purporting to keep the terms of the settlement confidential and excluding them from the public record. The court held a brief hearing, at which no evidence was taken, and approved the settlement. The court also granted the parties' request to place the agreement under seal.

Sometime thereafter the news media filed a written request with the court to allow them access to the agreement. The trial court scheduled a hearing on the request. Again, no evidence was taken, but the court heard the arguments of counsel for the news media and the personal representative, who opposed the media's request. The news media argued that sec. 59.14, Stats., together with various provisions of the open records law gave them a right to see the stipulation. The record does not reveal the nature of the estate's objections to opening the file.

The trial court denied the media's request. Recognizing that the stipulation was a public record subject to sec. 59.14, Stats., and the open records law, and, further, that the law and public policy of the state presume that the public has a right to inspect court records, the court proceeded to weigh the competing interests and ruled that the file should remain closed. The court also entered an order allowing the news media to intervene in the action for the limited purpose of contesting the open records issue. ⁵

The estate argues first that this is not an "open records" case at all, but one involving the court's "inherent authority" to control judicial proceedings. It contends that the trial court "has the inherent power to seal its files in the administration of justice," and that it properly exercised that power in this case. As we have noted, both the trial court's analysis of the issues and its ultimate decision were based on the common and statutory law governing the public's access to public records. There was no discussion of the court's inherent powers. Nonetheless, the estate argues that we should sustain the decision in deference to the inherent authority of the court to administer justice. We disagree.

The estate's argument is grounded on three Wisconsin cases: State ex rel. Bilder v. Delavan Tp., 112 Wis.2d 539, 334 N.W.2d 252 (1983); State ex rel. Journal Co. v. County Court, 43 Wis.2d 297, 168 N.W.2d 836 (1969); and State ex rel. Ampco Metal v. O'Neill, 273 Wis. 530, 78 N.W.2d 921 (1956). In Journal Co., the trial court suppressed its own decision in a child custody case in order to keep its terms confidential while discussions were undertaken with judges in another country in which the decision would have to be enforced. The supreme court, noting simply that the "inherent power[s] of the court" can, in some cases, "go[ ] beyond those conferred by statute," stated that it could find no authority permitting a court to withhold a decision from the public and overturned the trial court's action. Id., 43 Wis.2d at 311-12, 168 N.W.2d at 843. Ampco Metal was an "open courtroom case," not an open records case. It involved testimony relating to alleged trade secrets and it presented, in the court's words, one of "those rare situations where justice cannot be properly administered" without taking certain evidence in camera. Id., 273 Wis. at 539-40, 78 N.W.2d at 926. We do not see either opinion as justifying the conclusion that the court's action in this case was undertaken in the proper exercise of its inherent powers.

The last case, Bilder, involved the sealing of court records. The action concerned the suspension of a town police chief, and at some point the parties settled their dispute. In approving the settlement, the trial court ordered the file sealed on the officer's representation that opening the pleadings and various exhibits to the public would damage his reputation. As in this case, several newspapers intervened in the proceedings seeking an order opening the file. Again, as here, they based their right to access on sec. 59.14, Stats., and the open records law. The supreme court affirmed the trial court's decision requiring disclosure. The court noted first that once the exhibits became part of the court proceedings, they became public records as a matter of law under sec. 59.14, Stats., and that that statute gives the public the "absolute right" of access to such records, subject only to two restrictions not relevant here. ⁶ Bilder, 112 Wis.2d at 553, 334 N.W.2d at 260.

The court then stated [T]here may be a third exception to the ... "absolute right" of examination. The circuit court under its inherent power to preserve and protect the exercise of its judicial function of presiding over the conduct of judicial proceedings has the power to limit public access to judicial records when the administration of justice requires it. Id. at 556, 334 N.W.2d at 261.

The court went on to state, however, that before any question of inherent powers would even arise, the party seeking closure must "overcome the legislatively mandated policy favoring open records...." Bilder, 112 Wis.2d at 556, 334 N.W.2d at 261. The court then discussed the reasons advanced for closing the file in light of state statutes and other indicia of public policy favoring access and concluded that it need not decide "whether a circuit court may ever use its inherent power to seal court documents," because "Bilder has failed to overcome the legislative policy set forth in sec. 59.14 that the denial of public examination of a court record is contrary to the public policy and the public interest favoring open court records." Id. at 559, 334 N.W.2d at 262. We reach the same conclusion here. The issue of inherent powers does not arise because the strong public policy favoring access to court records has not been overcome.

As we have noted, sec. 59.14, Stats., requires registers in probate, in addition to circuit court clerks, to open their records to the public. In addition, the "Declaration of Policy" accompanying the open records law provides in part that

all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers ... who represent them. Further, providing persons with such information is declared to be an essential function of a representative government.... To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.

Sec. 19.31, Stats. (emphasis added).

We begin our inquiry, then, with the presumption that the public has a right to inspect the settlement agreement, that any exceptions to the rule of disclosure must be narrowly construed, and that denial of access to the agreement is contrary to the public interest and will be tolerated only in the "exceptional case." Oshkosh...