State ex rel. La Crosse Tribune v. Circuit Court for La Crosse County

• Decision Date: 30 November 1983
• Docket Number: No. 82-1614-W,82-1614-W
• Citation: 340 N.W.2d 460,115 Wis.2d 220
• Parties: , 10 Media L. Rep. 1041 STATE ex rel. LA CROSSE TRIBUNE, David B. Offer, Managing Editor of La Crosse Tribune, and Terry Rindfleisch, Petitioners, v. CIRCUIT COURT FOR LA CROSSE COUNTY, The Honorable James P. Fiedler, presiding, State of Wisconsin, and Peter E. Berg, Respondents.
• Court: Wisconsin Supreme Court

Page 460

340 N.W.2d 460

115 Wis.2d 220, 10 Media L. Rep. 1041

STATE ex rel. LA CROSSE TRIBUNE, David B. Offer, Managing Editor of La Crosse Tribune, and Terry Rindfleisch, Petitioners, v. CIRCUIT COURT FOR LA CROSSE COUNTY, The Honorable James P Fiedler, presiding, State of Wisconsin, and Peter E. Berg, Respondents.

No. 82-1614-W.

Supreme Court of Wisconsin.

Argued Sept. 6, 1983.

Decided Nov. 30, 1983.

Daniel T. Flaherty, argued, Ellen M. Frantz, and Johns, Flaherty & Gillette, S.C., La Crosse, for petitioners.

James H. McDermott, Asst. Atty. Gen., argued, with whom on brief, was Bronson C. La Follette, Atty. Gen., for respondents.

James P. Brody, Thomas L. Shriner, Jr., and Foley & Lardner, Milwaukee, for Wisconsin Freedom of Information Council, amicus curiae.

Russell D. Feingold, Brady C. Williamson, and La Follette, Sinykin, Anderson & Munson, Madison, for Wisconsin Newspaper Ass'n, amicus curiae.

HEFFERNAN, Chief Justice.

This is a review of an order of the court of appeals denying the petition of David B. Offer, managing editor of the La Crosse Tribune, and Terry Rindfleisch, reporter, for a writ of mandamus directing the La Crosse County Circuit Court to produce a transcript of voir dire proceedings held in camera. The petitioners also asked for an order prohibiting the La Crosse County Circuit Court from conducting in camera voir dire proceedings in violation of sec. 757.14, Stats. The court of appeals denied the writ because the voir dire had been completed and because there was no proof that extraordinary hardship would result if the transcript of the in camera voir dire was not produced immediately.

Although the underlying controversy has been tried, we reverse the court of appeals because the question posed merits determination by this court. We hold that the in camera voir dire of venire panel members in the underlying criminal prosecution constituted an abuse of discretion. We also reverse that portion of the court of appeals order which declined to direct the immediate production of the transcript of the in camera proceeding.

The petition to the court of appeals arose out of the decision of James P. Fiedler, La Crosse County Circuit Judge, to exclude the public from the voir dire of potential jurors and to hold it in chambers in the presence only of the parties and persons constituting the "court."

The underlying trial was a criminal action against Attorney Peter E. Berg. The complaint alleged that Berg had concealed property from its lawful owners without their consent and with intent to deprive them permanently of possession, contrary to sec. 943.20(1)(a), Stats.

The criminal trial commenced on August 26, 1982, in the Circuit Court for La Crosse County before Judge James P. Fiedler. Voir dire of the jury panel was commenced that same day. The petitioner, Terry Rindfleisch, was present in the courtroom, together with members of the public. After approximately one-half of the panel indicated that they had learned something about the case from the local news media, counsel suggested that there be an individual voir dire of those potentially contaminated panel members in the judge's chambers. Judge Fiedler retired to chambers with counsel, the defendant, the court reporter, the clerk, and a bailiff. Rindfleisch, the La Crosse Tribune's reporter, followed them into the judge's chambers. When, upon the judge's request for identification, Rindfleisch said he was a reporter for the Tribune, he was ordered to leave. Rindfleisch immediately objected to the judge's order and asked that he be allowed to read a statement into the record. Judge Fiedler denied that request and Rindfleisch left the chambers. ¹

Upon leaving the courtroom, Rindfleisch, pursuant to prior instructions of the Tribune's management, asked Attorney Daniel T. Flaherty to appear on his behalf and on behalf of the management of the La Crosse Tribune. Judge Fiedler refused to answer Flaherty's telephone calls; and when Flaherty came to the courthouse and asked to make a statement on the record between the questioning of the individual panel members, the request was refused. He was requested to leave the chambers during the voir dire and did so. Only after the completion of the in-chambers voir dire was Attorney Flaherty permitted to make the following statement on the record:

"I am here appearing for the La Crosse Tribune and the gentleman with me is Mr. David B. Offer, Managing Editor of the La Crosse Tribune. I am here because I was advised by Mr. Offer and by Mr. Terry Rindfleisch, an employee and news reporter for the Tribune that Mr. Rindfleisch had been excluded from the voir dire which had just been completed in secret in chambers and I was advised that the court had properly decided that the jurors should be questioned one by one regarding any prior knowledge of the case they had ascertained through the media, so as not to contaminate other jurors regarding such information or knowledge. I believe that the court's exclusion of Mr. Rindfleisch from such portion of the voir dire was in violation of sec. 757.14 of the Wisconsin Statutes. I know of no statutory exception to sec. 757.14 nor of any case law which would justify the court's excluding the public or a member of the media from such voir dire. If Mr. Rindfleisch had been allowed to make the statement he intended to make before the court removed him from chambers, he would have read into the record a statement which I am now asking the court reporter to make as Exhibit 1. I am asking that the court open such hearing to the public and to Mr. Rindfleisch or to advise us what authority the court felt would justify holding such a hearing privately so as to exclude Mr. Rindfleisch."

In an on-the-record statement, Judge Fiedler refused to open the hearing to the public or to the press. Judge Fiedler's statement reveals that neither counsel objected to Rindfleisch's presence in chambers. Judge Fiedler said, "The court on its own excluded the Tribune reporter." He stated that he held the voir dire in chambers not to protect Berg but to protect the individual panel members. He explained that the members of the panel who had read about the criminal action or heard about it were examined in chambers so that their impressions would not affect other members of the panel. He also stated those members of the panel were questioned in chambers to protect them from "embarrassment." The trial judge refused to listen to Attorney Flaherty's arguments until the voir dire proceedings were completed in chambers. Flaherty then asked for a transcript of the proceedings conducted in chambers. The judge denied that request when he stated that his reporter would be busy and it would be several weeks before a transcript could be prepared. The oral argument in this court revealed that no transcript of the voir dire has been made.

On August 27, 1982, the day after the secret voir dire, David B. Offer, managing editor of the La Crosse Tribune, and Terry Rindfleisch petitioned the court of appeals for a writ to compel the production of the in camera transcript and for an order prohibiting an in camera voir dire and further proceedings in the trial. On that same day, the court denied the petitioners' request for a stay of the Berg trial and, by a written order on September 28, 1982, denied the other relief sought. In that order the court of appeals found that the controversy was moot. The court's order stated:

"Because the voir dire has been concluded, we need not decide whether the trial court properly excluded petitioner Rindfleisch ...."

It denied the demand of the petitioners for the immediate production of the transcript because there was no showing of extraordinary hardship as a result of the failure to produce the transcript. The dissenting judge of the Court of Appeals would have decided whether the trial court acted properly and within its powers in excluding Rindfleisch from the in camera voir dire.

The posture of the case has changed substantially from the time Berg was placed on trial and the in camera voir dire was held of the potential jurors. At this juncture, the voir dire of the members of the panel has been completed and the trial itself has long been over. The request contained in the petition to the court of appeals that the criminal trial be stayed is moot, and no meaningful order affecting the Berg trial could be issued by this court. Moreover, as the court of appeals pointed out, the voir dire was completed even at the time the application for the supervisory writ was made to the court of appeals. In one respect at least, the situation presented is a classic case of mootness. This court has defined "mootness" in the following words:

"A moot case has been defined as one which seeks to determine an abstract question which does not rest upon existing facts or rights, or which seeks a judgment in a pretended controversy when in reality there is none, or one which seeks a decision in advance about a right before it has actually been asserted or contested, or a judgment upon some matter which when rendered for any cause cannot have any practical legal effect upon the existing controversy." Wisconsin E.R. Bd. v. Allis-Chalmers W. Union, 252 Wis. 436, 440-41, 32 N.W.2d 190 (1948). ²

Ordinarily, this court, like courts in general, will not consider a question the answer to which cannot have any practical effect upon an existing controversy. It is not claimed by either party that the disposition of this case could have any effect upon the criminal action brought against Peter Berg. Nor can there be any present practical effect upon the resolution of the controversy between the newspaper and the trial judge in respect to his determination to close the Berg voir dire to the Tribune's reporter.

It is generally thought to be in the interest of judicial economy not to continue to litigate issues that will not affect real parties to an existing controversy. On the...