State ex rel. Bilder v. Delavan Tp., 81-2182

CourtUnited States State Supreme Court of Wisconsin
Citation334 N.W.2d 252,112 Wis.2d 539
Docket NumberNo. 81-2182,81-2182
Parties, 9 Media L. Rep. 2294 STATE of Wisconsin ex rel. Alan BILDER, Petitioner-Appellant, v. The TOWNSHIP OF DELAVAN, a municipal corporation of the State of Wisconsin, Edward J. Lindloff, Russell P. Jansen, Harold J. Dahlinger, Craig R. Craig, Richard F. Fuller, John O. Olson, Steven R. Wassel and their officers, agents and employees, Respondents, Gazette Printing Co. and Newspapers, Inc., Intervenors-Respondents.
Decision Date01 June 1983

James A. Walrath, Milwaukee, argued for petitioner-appellant; and Shellow, Shellow & Glynn, S.C., Milwaukee, on brief.

Robert A. Christensen, Milwaukee, argued, for intervenors-respondents; Richard R. Grant and Wickhem, Consigny, Andrews & Hemming, S.C., Janesville, and Foley & Lardner, Milwaukee, on brief.


This is an appeal from an order of the circuit court for Walworth county, Robert H. Gollmar, reserve circuit judge. The circuit court order permitted Gazette Printing Co. and Newspapers, Inc. (the newspapers) to intervene in a suit brought by Alan Bilder, police chief, against the Township of Delavan and several of the town's officers, agents, and employees. The newspapers contested Bilder's motion to seal the pleadings and documents he filed in the action. In granting the motion to intervene the circuit court also opened the file to public examination. This court granted direct review of the order upon certification of the court of appeals. Secs. 808.05(2), 809.61, Stats. 1981-82.

The court of appeals certified two issues: (1) did the circuit court err in permitting the newspapers to intervene in the pending action to gain access to documents which had been sealed by the circuit court; (2) did the circuit court err in rescinding its earlier order sealing the documents, thus opening the documents filed with circuit court in this case to public examination. We hold that the circuit court did not err and therefore affirm the circuit court's order.


The facts giving rise to this appeal are not in dispute. The controversy between Alan Bilder, police chief for the Township of Delavan, and the Delavan town board dates back to the spring of 1981. In May 1981 the town board held a series of nonpublic meetings to discuss complaints against Bilder. The town board suspended Bilder with pay pending an investigation of the complaints. The town board retained an attorney to investigate the charges against Bilder, and the attorney filed a written report with the town board on June 13, 1981, recommending that the town institute removal proceedings. On the basis of that report the town scheduled a public hearing on the charges for August 17, 1981.

On August 11, 1981, Bilder filed a petition for a writ of prohibition and mandamus in the circuit court for Walworth county to compel the town board to reinstate him as police chief and to enjoin the town from conducting a hearing on charges of alleged misconduct. The petition sets forth the chronology of events and alleges that the town board's procedures inthis case violated both the town board's own procedures for removal of officials and the state's open meetings law. Bilder asserts that he had no other adequate remedy at law since an appeal from an adverse decision after a hearing on the charges would come too late to require the town to follow the law and to prevent the dissemination of charges. More than 300 pages of exhibits which had not been made public by the town and apparently relate to the town board's investigation of and meetings about Bilder are appended to the petition. Bilder simultaneously filed a motion to seal the court file on the ground that "the pleadings and exhibits contain reference to allegations ... which would be extremely damaging to [Bilder's] character, reputation and future career in law enforcement if made public." The circuit court signed Bilder's proposed order on the day he filed it. That order sealed the "file" pending further order of the court, restrained the town board from conducting any hearing on the charges, and scheduled a hearing on Bilder's petition for October 5, 1981. Although the circuit court order refers to sealing the file, apparently Bilder's petition is not under seal; only the exhibits are in a sealed unopened envelope.

Within two weeks of the filing of the petition, Bilder and the town board entered into a stipulation, agreeing that the town board would rescind Bilder's suspension as police chief, that the town board would be restrained from any further action which might lead to Bilder's dismissal, and that the circuit court's order dated August 11, 1981, sealing the pleadings and exhibits would be made permanent, but that all orders and writs issued by the circuit court may be made public by either party without leave of court. Although the record does not clearly indicate the sequence of events, the parties agree that at the same time that Bilder and the town board submitted to the circuit court a proposed order approving their stipulation, Gazette Printing Co. filed a motion to intervene in the action and to open the file. Later, Newspapers, Inc., also sought to intervene to open the file.

The circuit court heard oral argument on the newspapers' motion to intervene and unseal the file in August 1981. Apparently without reviewing the sealed documents, the circuit court on October 24 granted the motions to intervene, rescinded its order sealing the files, and refused to permit Bilder to withdraw the exhibits annexed to his petition. It stayed its order pending appeal.


The first question this court must decide is whether the circuit court erred in permitting the newspapers to intervene in the action as a matter of right. Sec. 803.09(1), Stats. 1981-82, 1 the Wisconsin intervention statute, establishes a four-part test that the proposed intervenor must meet: (1) timely application for intervention; (2) an interest relating to the property or transaction which is the subject of the action; (3) that the disposition of the action may as a practical matter impair or impede the proposed intervenor's ability to protect that interest; and (4) that the proposed intervenor's interest is not adequately represented by existing parties.

Bilder challenges the newspapers' intervention on two grounds: first, that the newspapers do not have an "interest relating to the property or transaction which is the subject of the action," and, second, that the motion to intervene was not timely. Bilder contends that the "subject of the action" is whether the town board's investigation and disciplinary proceedings against him were lawful; he urges that the newspapers' claimed right of access to the court file is only a collateral issue, too remote from the subject of the action to create a right of intervention.

The newspapers' stated interest in this action is opening a court file to public examination. The newspapers argue that the clear language of sec. 59.14(1), Stats.1979-80, that every clerk of the circuit court "shall open to the examination of any person all books and papers required to be kept in his or her office and permit any person so examining to take notes and copies of such book, records, papers or minutes ..." creates a judicially enforceable right to secure access to books and papers filed in circuit court actions in the office of the clerk of circuit court. This court has recognized that newspapers can enforce this public right because they qualify as persons who properly come under the umbrella of the Wisconsin statutes providing rights of examination of public records. State ex rel. Journal Co. v. County Court, 43 Wis.2d 297, 308, 168 N.W.2d 836 (1969).

We conclude that the newspapers' interest in opening the court file is a legally protected interest under sec. 59.14 and that the issue raised by the newspapers relates to the transaction which is the subject of the Bilder action. Even though the issue of the sealing or opening of the file was not the main objective of the Bilder action, Bilder made the issue important when he moved to seal the court file on the day he filed his action and when he made the permanent sealing of the file a condition of the stipulation dismissing the suit.

The question remains whether the newspapers' legally protected interest is sufficiently related to the transaction which is the subject of the action to justify the newspapers' intervention in this case as a matter of right. Neither the statutes nor Wisconsin case law defines the sufficiency of the "interest relating to the property or transaction which is the subject of the action" necessary to establish a right of intervention. Because sec. 803.09(1) is based on Rule 24(a)(2) of the Federal Rules of Civil Procedure, we look to cases and commentary relating to Rule 24(a)(2) for guidance in interpreting sec. 803.09(1), Stats.1981-82.

The federal courts and the commentators have not been able to derive a precise test for determining which type of interest is sufficient to allow a party to intervene as a matter of right. See 3B Moore's Federal Practice par. 24.07 (1982); 7A Wright and Miller, Federal Practice and Procedure: Civil sec. 1908 (1972); Blake v. Pallan, 554 F.2d 947, 952 (9th Cir.1977).

The various federal courts have differed in their approaches. Some appear to verbalize the sufficiency of interest factor as in part a question of standing or as requiring a "direct, substantial, legally protectable interest in the proceedings." See e.g., Hobson v. Hansen, 44 F.R.D. 18, 24 (D.C.Cir.1968); Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1124 (5th Cir.1970), cert. denied sub nom. Trefina A.G. v. United States, 400 U.S. 878, 91 S.Ct. 118, 27 L.Ed.2d 115 (1970); United States v. Perry County Bd. of Educ., 567 F.2d 277, 279 (5th Cir.1978); Piambino v. Bailey, 610 F.2d 1306, 1321 (5th Cir.1980), cert. denied, 449 U.S. 1011, 101 S.Ct. 568, 66 L.Ed.2d 469 (1980)...

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