Kenosha News. February 26, 2023.
Editorial: Undo high court’s lamentable decision
In a body blow to open and transparent government and the ability of citizen watchdog groups and journalists, the Wisconsin Supreme Court ruled 4-3 last summer that a Waukesha community group, Friends of Frame Park, was not entitled to attorney fees after suing the city of Waukesha for public records that the city later released before being ordered to do so by a court.
The high court ruling upended long-established practices and lower court rulings that had allowed requesters to recover their legal costs if a judge determined that their lawsuit had substantially prompted the “voluntary” release of the record by a government agency.
It was a terrible change that riled up citizens groups on both sides of the political spectrum.
Now, thankfully, Republicans in the state Senate and Assembly, are proposing to undo the high court’s action and return to the previous standard with proposed legislation they are circulating for co-sponsorship among their colleagues.
Rep. Todd Novak, R-Dodgeville, and Sen. Duey Stroebel, R-Saukville, are pushing the proposed legislation.
In a memo to other legislators they wrote the State Supreme Court decision “upended long-established precedent by requiring a lawsuit go to trial before legal fees can be recovered by a requester. The decision allows a government to hold on to public records until a suit is filed, then simply turn over the requested information and face no fear of having to pay costs incurred by the requester because the suit will never advance to a final decision.”
They warned that moving forward “a dangerous trend could arise where government entities withhold records with little to no recourse.”
We agree.
The real danger of the court’s ruling is that it will embolden government agencies to sit on a request for records that should be made public and wait to see if a lawsuit will be filed by a citizen group – and then, and only then cough up the records knowing that the lawsuit will be moot and they’re not on the hook for a penny in legal fees.
The court’s ruling also discourages citizen alliances and watchdog groups from going to court to seek public records they are lawfully entitled to. Many of these groups have few financial resources to pursue their causes and they’re hard-pressed to hire attorneys and go through expensive legal preparations when they may not be reimbursed.
In the Waukesha case, Friends of Frame Park who were opposed to conversion of the park for a minor league baseball stadium, were seeking to see a draft lease agreement between the municipality and Big Top Baseball in 2017. The stadium proposal ultimately failed.
The court’s ruling and its impact is hardly in keeping with Wisconsin’s tradition of transparency in government.
Novak and Stroebel’s proposed bills have the support of the Wisconsin Institute for Law and Liberty, the Wisconsin Transparency Project, Americans for Prosperity, the Wisconsin Newspapers Association, the Wisconsin Broadcasters Association, the Wisconsin Freedom of Information Council, and, yes, the Racine Journal Times and Kenosha News.
We’d like to see all our area legislators give Novak or Stroebel a call to sign on to co-sponsor this legislation and take a stand for open, honest and accountable government.
The deadline to is Tuesday, Feb. 28, at 5 p.m.
Sign on.
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Wisconsin State Journal. February 26, 2023.
Editorial: Roll your eyes if you have to, but vote ‘yes’ on statewide referendums April 4
Go ahead and vote “yes” to both of the statewide referendums on your April 4 ballot.
Just don’t expect much to change as a result.
Both questions — whether to allow judges more discretion in setting bail, and whether to require welfare recipients to seek employment — will be on the spring ballot for nakedly political reasons. Republicans who run the state Legislature hope to lure more conservatives to the polls by highlighting controversial-sounding issues.
But the GOP miscalculated. Their wording is so basic and inconsequential that both questions are drawing broad support, including from both candidates for state Supreme Court. That leaves little impact, political or otherwise.
So vote “yes” — even if you have to roll your eyes. Supporting these measures will help the public move past and diffuse these distractions.
One of the ballot questions is a proposed state constitutional amendment, which sounds serious. It will ask voters to allow judges more leeway when setting bail. Assuming the public votes “yes,” judges will explicitly be able to consider the criminal histories and potential risk to public safety of defendants accused of violent crimes.
Technically, judges in Wisconsin can only set cash bail now to ensure defendants appear in court. They aren’t supposed to use cash bail to prevent further crimes.
But the factors that make someone a safety risk often are the same factors that make them a flight risk. So the proposal differs little from current practices.
Moreover, judges already have the power to add conditions to bail to address public safety concerns. Judges in the past have been able to set high bail and stringent conditions on lots of people accused of heinous crimes.
Another tweak the proposed constitutional amendment would make is the deletion of a single word. Instead of defendants being eligible for release if the public is protected from “serious bodily harm,” the standard would be shortened to “serious harm.”
That’s less specific but not much different. And given the flexibility judges already have to weigh in their minds what’s best for society, we don’t expect increases in jail time.
It doesn’t appear that the Republican sponsors do, either. If they did — and if they were fiscally responsible, which they profess to be — they would propose more state money to pay for more jail cells to house more defenders. They haven’t done so.
Their goal appears primarily political, playing off the horrific massacre in 2021 of six people at a Christmas parade in Waukesha by the driver of an SUV. The man was out on just $1,000 bail after being charged with running over the mother of this child.
The low bail was a terrible mistake, something the district attorney in Milwaukee has acknowledged. But it didn’t result from weak standards for judges. It occurred because of a clerical error, according to the DA. The accused man’s risk assessment hadn’t been uploaded to an office management system, which prevented an assistant prosecutor from seeing and considering it before making a bail recommendation.
Even if the DA was lax, the proposed constitutional amendment wouldn’t have changed that.
The second statewide ballot question this spring is only advisory. It asks: “Shall able-bodied child-less adults be required to look for work in order to receive taxpayer-funded welfare benefits?”
Of course they should. And that’s why they already have to do so if they want to collect unemployment benefits and food stamps. The question is too cute by half in seeking to manufacture outrage.
Nonetheless, we recommend voting “yes.” Support the merits of the words, even if they’re redundant.
