John Doe 1 v. Madison Metro School District

2021 WI App 60

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2020AP1032

†Petition for Review Filed

Complete Title of Case:

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.

Opinion Filed: July 22, 2021
Submitted on Briefs: November 20, 2020

JUDGES: Blanchard, Kloppenburg, Nashold, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: 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.

Respondent
ATTORNEYS: 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.

2
2021 WI App 60

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 22, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1032 Cir. Ct. No. 2020CV454

STATE OF WISCONSIN IN COURT OF APPEALS

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.

APPEAL from an order of the circuit court for Dane County:
FRANK D. REMINGTON, Judge. Affirmed.
No. 2020AP1032

Before Blanchard, Kloppenburg, and Nashold, JJ.

¶1 KLOPPENBURG, J. 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.

BACKGROUND

¶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

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP1032

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

2
For context, we note the following events that occurred after the filing of the complaint
containing only the parents’ pseudonyms, although none of these events are at issue in this appeal.
The District filed a motion to dismiss the parents’ complaint. In addition, three student clubs from
three high schools in the District jointly filed a motion to intervene as defendants in this suit. The
circuit court denied the motion to dismiss and granted the motion to intervene.

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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

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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: “That would entangle me [in] … the local and
national counsel relationship and create a conflict of interest possibl[y] between
lawyers and their firms as to how they would share information and divide their
workload …. And to limit which attorneys have access to that information would
be an unnecessary intrusion into their practice of law.”

¶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

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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 “anyone else, period
…. And that includes expert witnesses. That includes [the attorneys’] other
clients.”

¶12 On June 3, 2020, the circuit court issued the written order to file under
seal. That order reads as follows:

this Court denies [the parents’] request [to proceed using
pseudonyms] for the reasons stated at the [May 26, 2020]
hearing. [The parents] must disclose their identities to the
Court and attorneys for the litigants. However, the Court is
satisfied that there is sufficient need to keep the [parents’]
names sealed and confidential from the public. Therefore,
on or before June 9, 2020, [the parents] must file, under seal,
an amended complaint that states the names and addresses
of the [parents] that are proceeding in this action. [The
parents] also must promptly circulate a draft protective order

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No. 2020AP1032

to opposing counsel, and all parties are required to negotiate
the terms of a protective order in good faith.

¶13 Pertinent to this appeal, the parents and the circuit court, in subsequent
proceedings, addressed the terms of the order to file under seal. On June 5, 2020,
the parents submitted to the court a proposed protective order providing that the
parents’ identities in the amended complaint would “be available only to the Court
and to counsel for the parties who have direct functional responsibility for the
preparation and trial of the lawsuit and who have appeared in this action” and that
those lawyers would be prohibited from disclosing the parents’ identities to “any
lawyers” without “direct functional responsibility” for the case and to “any other
staff of the law firms participating in this case.”

¶14 The circuit court held a status conference at which it addressed the
parents’ proposed protective order. The court rejected the parents’ request to limit
access to their identities in the amended complaint to only those lawyers “who have
direct functional responsibilities for preparation and trial of the lawsuit and who
have appeared in this action,” and rejected their request to prohibit disclosure to
non-lawyers associated with the parties’ attorneys. The court repeated its
“entanglement” reasoning: that any lawyer to whom the parents’ identities were
disclosed would have to sign and be bound by the court’s protective order and
permitting disclosure only to certain lawyers would “entangle” the court in
“micromanagement” of the defense and contravene the pro hac vice appearance of
non-Wisconsin lawyers for the intervenors. The court also noted that, under SCR
20:5.3(a)-(c), each of the lawyers in this case is responsible for compliance with the
court’s protective order by non-lawyer assistants. The court directed counsel for the
District to confer with the parents and draft a protective order “protecting the

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No. 2020AP1032

secrecy of the [parents’ identities], but otherwise allowing [for] the [plaintiffs’,
defendant’s, and intervenors’ lawyers’] ability to practice law.”

¶15 Before the District submitted any draft protective order, the parents
filed a notice of appeal of the circuit court’s order to file under seal and also
petitioned this court for leave to appeal that order. We granted the parents’ petition
for leave to appeal under WIS. STAT. § 808.03(2) (“Appeals by permission”).3

¶16 The parents moved the circuit court to stay, pending appeal, its order
to file under seal. The circuit court held a motion hearing at which it reiterated the
basis for its order, again explaining that, “in balancing the considerations sought by
the [parents],” it determined that the “appropriate course of conduct was to require
disclosure of the names under seal with a protective order for attorneys’ eyes only.”
The court continued:

I don’t think this is very complicated. I understand … the
plaintiffs’ concern over the preservation of their anonymity.
The fact that I did not do as they asked does not mean that I
do not understand. It’s simply that as I said and I’ll say it
again is that I did not believe that what they were requesting
was supported by current Wisconsin law. And … even if it
had been supported by Wisconsin law or that I could create
this law, I wouldn’t do it in this case under the facts of this
case…. But I structured the communication of [the parents’
identities] in such a way as I hoped and believed that it would
maximize the [parents’] individual interest [in] protecting
themselves from the threat of retaliation by entering a
protective order and allowing [their identities] to be filed
under seal.

3
In our order granting the parents’ petition for leave to appeal under WIS. STAT.
§ 808.03(2), we directed the parties to include argument in their appellate briefs addressing whether
the circuit court’s order to file under seal is a final order appealable as of right under Sec.
§ 808.03(1). Upon review of the briefing, we conclude that we need not decide that issue.

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No. 2020AP1032

The circuit court granted the parents’ motion for a stay pending appeal of the court’s
order to file under seal. No amended complaint has been filed, nor has a new
protective order been submitted.4

DISCUSSION

¶17 The only portion of the circuit court’s order to file under seal that the
parents challenge on appeal is the provision that the parents’ identities in the
amended complaint be revealed to the attorneys for the District and the intervenors.
We begin by explaining the standard of review governing a circuit court’s decision
to seal information in a court record. We next explain the Wisconsin law governing
access to court records, including the statutory procedure for protecting information
in a court record and the substantive law interpreting that procedure. Before
applying those legal principles to this case, we address and reject the parents’
proposal that we instead apply what they represent are the legal principles in federal
law that specifically govern protection of a party’s identity. Finally, we analyze the
circuit court’s order pursuant to Wisconsin law and explain why we affirm.

I. Standard of Review

¶18 We review for an erroneous exercise of discretion the circuit court’s
order to seal the parents’ identities except from the court and the attorneys for the
parties. See Krier v. EOG Env’t, Inc., 2005 WI App 256, ¶¶1, 23, 288 Wis. 2d 623,

4
We note for context the following additional events, none of which is at issue in this
appeal, which occurred after the parents appealed the circuit court’s order to file under seal. The
circuit court granted in part and denied in part the parents’ motion for injunctive relief pending
appeal as to the District’s adherence to the Guidance challenged in this case. We denied the parents’
motion in this court seeking relief pending appeal beyond that granted by the circuit court. The
parents then filed in the Wisconsin Supreme Court a petition for review of both courts’ rulings on
their motions for injunctive relief pending appeal, and the supreme court denied the petition in
March 2021.

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No. 2020AP1032

707 N.W.2d 915 (decision to seal court records reviewed for erroneous exercise of
discretion). We will affirm so long as the circuit court “examines the relevant facts,
applies the proper legal standard, and uses a rational process to reach a reasonable
conclusion.” State v. Richard J.D., 2006 WI App 242, ¶5, 297 Wis. 2d 20, 724
N.W.2d 665. An erroneous exercise of discretion occurs if the court fails to exercise
its discretion, the record demonstrates that the facts do not support the court’s
decision, or the court applies the incorrect legal standards. Krier, 288 Wis. 2d 623,
¶23. We do not “fulfill a fact finding function” or “exercise the [circuit] court’s
discretion,” id., ¶24, and we uphold unless clearly erroneous the circuit court’s
findings of fact. State v. Arias, 2008 WI 84, ¶12, 311 Wis. 2d 358, 368, 752 N.W.2d
748 (We uphold a circuit court’s finding of fact unless it is clearly erroneous, that
is, if “it is against the great weight and clear preponderance of the evidence.”).

II. Wisconsin Law Governing Access to Court Records

¶19 Wisconsin statutory and case law mandate open court records. See
WIS. STAT. §§ 19.31-32 (declaring the legislature’s policy behind Wisconsin’s
public records law and specifying that “any court” is among the governmental
authorities subject to the public records law); WIS. STAT. § 59.20(3) (providing that
every clerk of the circuit court must permit any person to examine court records);
State ex rel. Bilder v. Delavan Twp., 112 Wis. 2d 539, 553, 334 N.W.2d 252 (1983)
(Wisconsin statutory law “reflects a basic tenet of the democratic system that the
people have the right to know about operations of their government, including the
judicial branch.”). In general, a party cannot file a lawsuit in Wisconsin’s courts
without revealing its identity because the complaint initiating the action must
“include the names and addresses of all the parties,” WIS. STAT. § 802.04(1), and,
once a document is filed with the court it is “a judicial record, and subject to the
access accorded such records.” Matter of Ests. of Zimmer, 151 Wis. 2d 122, 134,

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442 N.W.2d 578 (Ct. App. 1989) (internal quotation marks and quoted source
omitted). Thus, a party seeking redress in our courts generally must reveal its
identity to the public. See Bilder, 112 Wis. 2d at 557 (“Any use of the judicial
process opens information about a party’s life to the public’s scrutiny.”).

¶20 However, there are exceptions to this general rule of open court
records. See WIS. STAT. § 19.35(1)(a) (mandating open access to records “except
as otherwise provided by law”); Bilder, 112 Wis. 2d at 553-55 (“absolute right” of
public to inspect court records is “not without exception” and yields where sealing
is authorized by statute or where disclosure would infringe on a constitutional right);
e.g., WIS. STAT. §§ 801.19 and 801.20 (listing information and documents
customarily treated as confidential). The legislature has provided a sealing
procedure for information in a court record that is not required by statute to be
treated as confidential, but that a party asserts needs to be protected. Our case law
has provided a substantive legal test that interprets that procedure. We now describe
that procedural and substantive law.

A. Procedure Governing Motions to Protect Information in Court Records

¶21 WISCONSIN STAT. § 801.21 provides:

A party seeking to protect a court record … shall file
a motion to seal part or all of a document or to redact specific
information in a document … [and] shall specify the
authority for asserting that the information should be
restricted from public access. The information to be sealed
or redacted may be filed under a temporary seal, in which
case it shall be restricted from public access until the court
rules on the motion.

Sec. 801.21(2). Upon a motion to seal, the circuit court “shall determine whether
there are sufficient grounds to restrict public access according to applicable
constitutional, statutory, and common law.” Sec. 801.21(4). If the court determines

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that there are sufficient legal grounds to protect information in a court record, it
“will use the least restrictive means that will achieve the purposes of this rule and
the needs of the requester.” Sec. 801.21(4).

¶22 WISCONSIN STAT. § 801.21 is “intended to make it clear that filing
parties do not have the unilateral right to designate any filing as confidential and
that permission from the court is required.” Comment, 2015, § 801.21. The court’s
permission “may flow from a statute or rule explicitly requiring that a particular
document or portion of a document be filed confidentiality or from an analysis of
the facts of the case and the applicable law.” Id. The statute merely sets out the
“procedural prerequisites” for protecting information in a court document. Id. The
substantive legal tests for determining whether to issue an order to seal come from
our case law interpreting our legislature’s laws that mandate open court records.

B. Substantive Law Governing Motions to Seal Information in Court Records

¶23 Wisconsin case law makes clear that, except as otherwise authorized
by law, the sealing of information in court documents is disfavored. See Zimmer,
151 Wis. 2d at 131 (exceptions to the rule of public access to court records “must
be narrowly construed” and “will be tolerated only in the ‘exceptional case’”)
(quoted source omitted); Bilder, 112 Wis. 2d at 556-7 (a party seeking to protect
information in a court record must “overcome the legislatively mandated policy
favoring open records”); Krier, 288 Wis. 2d 623, ¶23 (“When examining the
contours of the open records presumption and particularly as it applies to court
records and the court’s control over those records, there is a strong presumption
favoring access ….”).

¶24 However, even when not specifically authorized by other law, the rule
of open court records may yield in cases where “the administration of justice

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requires” protecting information in the court record, Bilder, 112 Wis. 2d at 556-57,
or where an “overriding public interest” in protecting the information outweighs the
presumption of public access, Krier, 288 Wis. 2d 623, ¶23.5 We now explain in turn
each of these two exceptions.

¶25 In Bilder, 112 Wis. 2d 539, our supreme court explained that, in
addition to the power to issue protective orders governing court records as
authorized by statutory or constitutional law, id. at 554-55, “[t]he 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.
This standard sets a high bar: “the party seeking to close court records bears the
burden of demonstrating, with particularity, that the administration of justice
requires that the court records be closed…. Even then [a protective] order is
appropriate only when there is no less restrictive alternative available.” Id. at 556-
57.

5
The administration of justice test comes from our supreme court’s interpretation in State
ex rel. Bilder v. Delavan Twp., 112 Wis. 2d 539, 553, 334 N.W.2d 252 (1983) of WIS. STAT.
§ 59.14 (1979-80) (renumbered sec. 59.20 (2019-20)), which requires the “clerk of the circuit
court” to open all court records to public examination. The overriding public interest test comes
from Wisconsin case law, e.g., C.L. v. Edson, 140 Wis. 2d 168, 181-82, 409 N.W.2d 417 (Ct. App.
1987), interpreting our public records law, WIS. STAT. §§ 19.31-19.37, which declares “a
presumption of complete public access” to records of “any court of law.” Secs. 19.31-19.32(1).
When analyzing issues involving the protection of court records, we have used both tests. See, e.g.,
C.L., 140 Wis. 2d at 181-82 (applying only the public interest test to a request to seal court
documents); Estates of Zimmer, 151 Wis. 2d 122, 128-30, 131-32, 442 N.W.2d 578 (Ct. App.
1989) (separately applying each test and concluding that both tests required opening the pertinent
court records); Krier v. EOG Env’t, Inc., 2005 WI App 256, ¶¶9, 18, 23-25, 288 Wis. 2d 623, 707
N.W.2d 915 (concluding that the circuit court failed to consider an element of the administration
of justice test and remanding for consideration of both tests); State v. Stanley, 2012 WI App 42,
¶¶29-31, 340 Wis. 2d 663, 814 N.W.2d 867 (discussing both tests but applying the administration
of justice test only in analyzing newspaper’s request to unseal court records). Here, we need not
determine which test to use because the result is the same under either test.

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¶26 When no statutory or common law exceptions to the rule of openness
exist, we have also approved protective orders governing court records when
“permitting inspection would result in harm to the public interest which outweighs
the legislative policy recognizing the public interest in allowing inspection.”
Zimmer, 151 Wis. 2d at 132. Under this exception, the party seeking a protective
order governing a court record bears the “burdening oar of proof” to show an
“overriding public interest in closure.” Krier, 288 Wis. 2d 623, ¶¶23-24. That party
may not rely on his or her individual privacy interest, but rather only on “the public’s
interest in protecting [the individual’s] privacy.” Zellner v. Cedarburg Sch. Dist.,
2007 WI 53, ¶17, 300 Wis. 2d 290, 731 N.W.2d 240. The “public interest in
protecting the reputation and privacy of citizens … is not equivalent to an
individual’s personal interest in protecting his or her own character and reputation,”
and “the public interest in protecting individuals’ privacy and reputation arises from
the public effects of the failure to honor the individual’s privacy interests, and not
the individual’s concern about embarrassment.” Linzmeyer v. Forcey, 2002 WI 84,
¶31, 254 Wis. 2d 306, 646 N.W.2d 811.

¶27 This case requires that we analyze the circuit court’s order pursuant
to the Wisconsin statutory procedure and case law set out above. However, before
conducting our analysis, we first address the parents’ argument that we should
instead apply what they represent to be the federal law on protection of a party’s
identity.

C. Parents’ Proposed Law Governing Protection of a Party’s Identity

¶28 The parents represent that the federal courts in some cases permit
parties to protect their identities by suing “anonymously” such that even the court
itself does not know the parties’ identities. See, e.g., Roe v. Wade, 410 U.S. 113,

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124 (1973) (accepting as true for purposes of her case, Roe’s “existence” and
“pregnant state”); Doe v. Bolton, 410 U.S. 179, 187 (1973) (“despite her
pseudonym, we may accept as true, for this case, Mary Doe’s existence and her
pregnant state”). Under this procedure, it appears that a plaintiff’s identity is
protected without a motion to seal and without a protective order from the court
because the court record is simply devoid of any information that identifies the
plaintiff. See, e.g., Roe v. Ingraham, 364 F. Supp. 536, 541 n.7 (S.D.N.Y. 1973)
(permitting plaintiffs to prosecute their suit “only by fictitious names” when
“[p]laintiffs’ attorneys have represented to the court” that “these fictitious names
are actually representative of real and specific aggrieved individuals” and noting
that such a procedure “was given implicit recognition by the United States Supreme
Court in Roe v. Wade … and Doe v. Bolton”).6 The parents argue that because
federal courts in some cases have protected parties’ identities by permitting them to
proceed “anonymously” as described above, Wisconsin courts must have the power
to do the same, asserting, “Surely Wisconsin courts have just as much authority as
federal courts to allow anonymity in the right cases.”

6
We note that the majority of the federal cases cited by the parents do not evince the use
of such a procedure. Several use pseudonyms without explanation, see, e.g., Doe v. Colautti, 592
F.2d 704, 705 (3d Cir. 1979) (no comment on use of pseudonym); Plyler v. Doe, 457 U.S. 202
(1982) (same), and several others indicate that the federal court, similar to the circuit court here,
protected a party’s identity through an order to seal that information pursuant to a protective order
under which the party’s identity was disclosed only to the court and to the attorneys involved in the
case. See, e.g., Doe v. Porter, 370 F.3d 558, 561 (6th Cir. 2004) (court entered protective order
under which only the court and counsel could learn plaintiffs’ identities); Roe v. Aware Woman
Ctr. for Choice, Inc., 253 F.3d 678, 687 (11th Cir. 2001) (plaintiff entitled to proceed
pseudonymously as to the general public while disclosing her name to defendants under protective
order); Doe v. Stegall, 653 F.2d 180, 182 (5th Cir. 1981) (concerning protective order under which
plaintiffs challenging prayer in schools would “disclose their identities to the defendants and to the
Court” but proceed by using pseudonyms in public filings to prevent “disclosure to the general
public”).

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¶29 The parents represent that the substantive law that the federal courts
“uniformly apply” to requests for anonymity is “a balancing test that weighs the
plaintiff’s need for anonymity against countervailing interests in full disclosure.”
See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008).7 The
parents cite federal cases in which courts “identify a variety of factors to consider”
in applying this balancing test, including whether the litigation involves: (1) minor
children; (2) matters of a highly sensitive and personal nature; (3) deeply held
beliefs; (4) a danger of retaliation; (5) a challenge to government action; (6) purely
legal issues; and (7) a situation in which anonymity will not prejudice the opposing
party. They assert, citing Krier, 288 Wis. 2d 623, ¶23, that the federal test as they
describe it is “equivalent” to the substantive Wisconsin rule governing orders to seal
a court record and that Wisconsin courts should therefore adopt the federal test. We
disagree, for the reasons we now explain.

¶30 When addressing Wisconsin law, Wisconsin courts are bound by the
decisions of Wisconsin courts. See State v. Muckerheide, 2007 WI 5, ¶7, 298
Wis. 2d 553, 725 N.W.2d 930 (case law from other jurisdictions “is not binding
precedent in Wisconsin, and a Wisconsin court is not required to follow it.”). As to
the procedure for protecting a plaintiff’s identity, the parents do not identify, and
our research does not reveal, any Wisconsin case or statute authorizing a party to
proceed “anonymously” in such a way that no filing containing the party’s identity
is included, even under seal, in the court record. The parents argue that, in practice,
“Wisconsin courts have regularly allowed plaintiffs to sue using pseudonyms,” but

7
We question whether the purported federal test is in fact “uniform.” See Donald P. Balla,
John Doe Is Alive and Well: Designing Pseudonym Use in American Courts, 63 ARK. L. REV. 691,
692 (2010) (discussing “the patchwork approach to pseudonym rules that has plagued the federal
circuit courts” and considering what rules the United States Supreme Court should adopt “when it
finally resolves the differences among the circuits.”).

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No. 2020AP1032

the cases they cite merely use pseudonyms in the captions and do not show that
Wisconsin courts have permitted parties to proceed under the parents’ proposed
alternative procedure and without filing a motion to seal the information in the court
records at issue. See Doe 56 v. Mayo Clinic Health Sys.–Eau Claire Clinic, Inc.,
2016 WI 48, 369 Wis. 2d 351, 880 N.W.2d 681 (no discussion of pseudonyms);
Milwaukee Teachers’ Educ. Ass’n v. Milwaukee Bd. of Sch. Dirs., 227 Wis. 2d
779, 596 N.W.2d 403 (1999) (same); Doe v. Archdiocese of Milwaukee, 211
Wis. 2d 312, 565 N.W.2d 94 (1997) (same); Doe v. Roe, 151 Wis. 2d 366, 444
N.W.2d 437 (Ct. App. 1989) (same).

¶31 We decline to adopt such a procedure as a substitute for Wisconsin’s
clearly delineated statutory procedure, under which a party seeking to protect its
identity may do so through a motion to seal, and may file the identifying complaint
under temporary seal while awaiting the court’s decision on the motion. See WIS.
STAT. § 801.21(2) (“A party seeking to protect a court record … shall file a motion
to seal …. The information to be sealed or redacted may be filed under a temporary
seal, in which case it shall be restricted from public access until the court rules on
the motion.”).8

¶32 As to the substantive legal principles governing protection of a party’s
identity, we decline to adopt the purported federal balancing test (assuming without
deciding that there is a uniform federal test) because it is contrary to, not equivalent

8
The parents also argue that affirming the circuit court’s order here would inappropriately
curtail the authority of Wisconsin courts “to allow anonymity in the right cases” and “would have
broad ramifications” because it would “force plaintiffs in important but sensitive cases out of state
court and into federal court.” This argument lacks merit for reasons we have explained. Wisconsin
circuit courts have the power to enter as restrictive a protective order as is warranted, taking into
account the facts and circumstances of a particular case and the public interest or the administration
of justice. The Wisconsin statutory motion to seal procedure allows parties to file sensitive
information under temporary seal while awaiting the circuit court’s disposition of the motion. WIS.
STAT. § 801.21(2) and (4).

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No. 2020AP1032

to, the Wisconsin balancing test. As the parents represent it, the federal test, under
which “the plaintiff’s need for anonymity” is weighed against the public interest in
openness, Sealed Plaintiff, 537 F. 3d at 189, is at odds with the Wisconsin balancing
test, under which only the public’s interest in protecting the party’s identity, not the
plaintiff’s private interest, is weighed in the balance. Krier, 288 Wis. 2d 623, ¶23
(strong presumption favoring access “may be overcome only by a showing of an
overriding public interest in closure”); Linzmeyer, 254 Wis. 2d 306, ¶31 (“public
interest in protecting the reputation and privacy of citizens … is not equivalent to
an individual’s personal interest”).

¶33 Having clarified that Wisconsin law governs our review of the circuit
court’s order in this case, we now proceed to our analysis applying that law.

III. Analysis

¶34 To repeat, the circuit court ordered the parents, if they wished to
proceed, to file under seal and pursuant to a protective order an amended complaint
stating their identities such that their identities would be disclosed only to the court
and the attorneys for the litigants. Also to repeat, the parents challenge only that
portion of the court’s order providing for disclosure to the parties’ attorneys.9
Reviewing the circuit court’s order to seal for an erroneous exercise of discretion,
see Krier, 288 Wis. 2d 623, ¶23, we conclude that the parents fail to show that the
circuit court erroneously exercised its discretion in issuing its order.

9
The parents assert in their reply brief that they “have offered to disclose their identities
to the Court alone in a sealed complaint.” The parents cite no portion of the record in support of
this assertion. As stated above, the parents did offer to submit unredacted versions of their
affidavits for the circuit court’s in camera review. Nonetheless, we understand their assertion on
appeal to mean that the parents do not object to revealing their identities to the court in a sealed
amended complaint.

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No. 2020AP1032

¶35 The record shows that the circuit court applied the appropriate
standard of law in analyzing the parents’ request to seal information in the court
record. The parents did not in the circuit court and do not now assert that their
request is subject to any blanket legal exception to Wisconsin’s general rule of open
court records. The court considered the “administration of justice” test when it
concluded that an unsealed public record of the parents’ identities risked frustrating
“the orderly function” of the judicial process. See Bilder, 112 Wis. 2d at 556 (circuit
court has power to restrict access to court records if so required by the administration
of justice). The court considered the “public interest” test when it explicitly
explained that it was exercising its discretion in fashioning its order and that it was
balancing “the public’s right to know … against situations where that right is
outweighed by other concerns” and concluded that the public’s interest in
preventing the potential harassment of the parents and disruption of the legal process
outweighed the presumption of openness. Krier, 288 Wis. 2d 623, ¶¶23-24
(“overriding public interest in closure” may warrant sealing court records).

¶36 As summarized above, the circuit court considered whether an order
sealing the parents’ identities from some or all of the attorneys for the litigants was
necessary to achieve the end of protecting the parents from harassment and ensuring
the smooth administration of justice in this case. It concluded that, because the
attorneys could be expected to keep the parents’ identities confidential and because
the parents’ proposed restrictions would entangle the court in the attorneys’ work
and potentially impede the defense, such an order was not appropriate or necessary.
See WIS. STAT. § 801.21(4) (court will use “least restrictive means necessary” in
sealing court records). Based on this record, we conclude that the parents fail to
show that the circuit court erroneously exercised its discretion. See Krier, 288
Wis. 2d 623, ¶23 (“An erroneous exercise of discretion occurs if the court fails to

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No. 2020AP1032

exercise its discretion, the record demonstrates that the facts do not support the
[circuit] court’s decision, or the [circuit] court applied the wrong legal standards.”).
We now address in turn the parents’ three arguments to the contrary.

¶37 First, the parents argue that the circuit court failed to conduct an
appropriate balancing of considerations or to apply any “legal standard” because it
concluded that it “lacked authority” to grant the parents’ request. This argument is
refuted by the record. The court recognized that it had the “authority” and
“discretion” to fashion an order sealing the parents’ identities with terms that it
concluded were “appropriate,” and its multiple questions to the parents regarding
whether there was any reason to distrust any of the attorneys involved in this case
show that the court was aware of its power to impose a more restrictive order. The
court’s statements about lacking authority plainly refer only to the parents’ request
to proceed as initially outlined in their “motion to proceed using pseudonyms,” by
which the parents sought to litigate this case without filing, even under seal, a court
record stating their identities. As explained, the record shows that the court
balanced appropriate considerations and exercised its discretion in evaluating the
parents’ various requests pursuant to the Wisconsin law described above.

¶38 Second, the parents argue that the circuit court erred because its order
to file under seal “would expose [the parents’] identities to an unreasonably large
group of people” because the “lawyers (and associates, paralegals, secretaries,
interns, etc.)” involved in this litigation number “well over a thousand, if not in the
thousands.” This argument fails because the court’s determination that its order
adequately mitigates such risks is supported by its findings of fact that the attorneys
involved in this litigation can be expected to honor the court’s order and to
responsibly supervise non-lawyers performing work on this case. See Peplinski v.
Fobe’s Roofing, Inc., 193 Wis. 2d 6, 20, 531 N.W.2d 597 (1995) (we will uphold

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No. 2020AP1032

the circuit court’s exercise of discretion if we can locate facts of record that would
support the circuit court’s decision). The parents point to no evidence in the record
that show these findings of fact to be clearly erroneous. See Arias, 311 Wis. 2d 358,
¶12 (We uphold a circuit court’s finding of fact unless it is clearly erroneous, that
is, if “it is against the great weight and clear preponderance of the evidence.”).

¶39 The parents assert that, although they “do not mean to suggest, and
have no reason to believe, that Defendants’ counsel will intentionally violate a
protective order,” the harm of a leak “cannot be undone” and “contentious, high-
profile cases like this provide a strong temptation for a leak.” Such speculative
harms are not enough to show that the parents’ proposed terms for an order to seal
are the “least restrictive means” available, WIS. STAT. 801.21(4), to protect the
parents from harassment. See Zimmer, 151 Wis. 2d at 137 (“speculative reference”
to relatives’ fear that disclosure of court documents could occasion further contact
with perpetrator of deceased relatives’ murders did not justify closure); C.L., v.
Edson, 140 Wis. 2d 168, 174, 184, 409 N.W.2d 417 (Ct. App. 1987) (affirming
circuit court’s decision to redact identifying references to minor plaintiffs and to
deny plaintiffs’ request for a more restrictive seal of the court records when
plaintiffs showed only “potential harm” for which there was “no factual
foundation”). The parents have failed to show “with particularity” that the
administration of justice requires a more restrictive protective order. See Krier, 288
Wis. 2d 623, ¶¶18, 19 (“necessary element” of particularity “as to the adverse
impact disclosure would produce” must be proven by the party seeking closure);
Bilder, 112 Wis. 2d at 556–57 (“party seeking to close court records bears the
burden of demonstrating, with particularity, that the administration of justice
requires that the court records be closed”).

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No. 2020AP1032

¶40 Third, the parents argue that they are entitled to a more restrictive
order than that issued by the circuit court because: (1) their identities are “entirely
irrelevant” to the “purely legal” issues that this case raises; and (2) their suggested
alternative orders would present a “lack of prejudice” to the other parties in this
case. These are two of the factors that the parents represent are considered by
federal courts. See Sealed Plaintiff, 537 F. 3d at 189.

¶41 This argument lacks merit because neither of these two factors are
weighed in the balance in Wisconsin case law, under which only an “overriding
public interest in closure,” Krier, 288 Wis. 2d 623, ¶¶23-24, or the requirements of
the “administration of justice,” id., ¶9, can justify an exception to our general public
policy of democratic openness.10 See Bilder, 112 Wis. 2d at 553 (policy of open
court records “reflects a basic tenet of the democratic system that the people have
the right to know about operations of their government, including the judicial
branch, and that where public records are involved the denial of public examination
is contrary to the public policy and the public interest”). “The courts have been the
great repositories of personal liberty, and their obligation is not only to see that the
conduct and performance of executive and legislative officials is open to public
scrutiny, but to maintain for themselves the high standards that they prescribe for
others.” State ex rel. J. Co. v. County Ct. for Racine Cnty., 43 Wis. 2d 297, 312-
13, 168 N.W.2d 836 (1969).

¶42 Importantly, the parents do not offer any developed argument that
Wisconsin law entitles them to a more restrictive protective order. They do not
argue that the more restrictive terms they proposed are required by “the

10
This is not to say that Wisconsin courts may not, in the exercise of their discretion as
part of their analysis under the Wisconsin tests, weigh any factors identified by the federal courts.

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No. 2020AP1032

administration of justice,” Bilder, 112 Wis. 2d at 556-57, or that public interest in
keeping their identities confidential from the attorneys for the parties outweighs the
court’s obligation to protect the parents’ identities using the least restrictive means
necessary. See C.L., 140 Wis. 2d at 181 (seal permitted when public interest in
keeping a court record confidential outweighs the public policy of open court
records). Conclusory assertions do not substitute for a developed argument that the
circuit court erred. See Associates Fin. Servs. Co. of Wis., Inc. v. Brown, 2002 WI
App 300, ¶4 n.3, 258 Wis. 2d 915, 656 N.W.2d 56 (this court may decline to
consider conclusory and undeveloped arguments that are not adequately briefed).

¶43 Overall, the gravamen of the parents’ argument is that we should
weigh their asserted grounds for protecting their identities differently than did the
circuit court. Contrary to the parents’ contentions throughout their briefing, the
court weighed the parents’ interests in a more restrictive protective order and
explained why it determined that, under “the facts of this case” and “balancing the
considerations sought by the [parents],” the “appropriate course of conduct was to
require disclosure of the names under seal with a protective order for [the court’s
and the] attorneys’ eyes only.” To repeat, as an appellate court we do not reweigh
or rebalance the factors considered by a circuit court in fashioning a discretionary
protective order. Krier, 288 Wis. 2d 623, ¶22 (we do not “exercise the [circuit]
court’s discretion.”).

¶44 In sum, the parents have failed to show that the circuit court
erroneously exercised its discretion in ordering the parents to state their identities in
a sealed amended complaint pursuant to a protective order under which the parents’
identities would be disclosed only to the court and to the attorneys for the parties.

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No. 2020AP1032

CONCLUSION

¶45 For all the reasons stated above, we affirm.

By the Court.—Order affirmed.

24