Weidner vs City of Racine 5 Unsealed Documents

Case 2017CV001644

Document 78

Filed 09-21-2018

Page 1 of 2 FILED 09-21-2018 Clerk of Circuit Court Racine County

STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY 2017CV001644 ______________________________________________________________________________ SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent. ______________________________________________________________________________ RESPONDENT CITY OF RACINE’S AMENDED NOTICE OF MOTION AND MOTION FOR AN EMERGENCY HEARING AND FOR SANCTIONS ON PETITIONER SANDRA J. WEIDNER’S CONTEMPT OF COURT FOR VIOLATING THE COURT’S SEAL ORDERS ____________________________________________________________________________ PLEASE TAKE NOTICE that the Respondent City of Racine (“City”), by and through its attorneys, Meissner Tierney Fisher & Nichols S.C., moves this Court, the Honorable Eugene A. Gasiorkiewicz presiding, to hold an emergency hearing, which has been set for 9:00 a.m. on Tuesday, September 25, 2018, and for an Order of sanctions on Petitioner Sandra J. Weidner’s Contempt of Court for Violating the Court’s Seal Orders.

Grounds for said motion are stated in the accompanying City’s Brief in Support of its Motion for an Emergency Hearing and for Sanctions on Petitioner Sandra J. Weidner’s Contempt of Court for Violating the Court’s Seal Orders and Affidavit of Michael J. Cohen in support of the same and exhibits attached thereto.

Dated this 21st day of September 2018.

MEISSNER TIERNEY FISHER & NICHOLS S.C. By: Electronically signed by Michael J. Cohen Michael J. Cohen State Bar No. 1017787 Email: mjc@mtfn.com

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Case 2017CV001644

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Dieter J. Juedes State Bar No. 1088880 Email: djj@mtfn.com 111 East Kilbourn Avenue, 19th Floor Milwaukee, WI 53202 Tel: 414-273-1300 Fax: 414-273-5840 Attorneys for Respondent, City of Racine

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FILED FILED 09-21-2018 01-16-2019 Clerk of of Circuit Circuit Court Court Clerk Racine County County Racine

STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY 2017CV001644 2017CV001644 ______________________________________________________________________________ SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent. ______________________________________________________________________________ __ RESPONDENT CITY OF RACINE’S BRIEF IN SUPPORT OF ITS MOTION FOR AN MOT EMERGENCY HEARING AND FOR SANCTIONS ON J. N PETITIONER SANDRA S WEIDNER’S CONTEMPT OF COURT FOR VIOLATING OLATING THE COURT’S COURT SEAL COUR ORDERS RS ______________________________________________________________________________ ________________________ ____________________

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Respondent City of Racine (the counsel, submits the “City”), byy and through its undersigned u this Brief in Support of its Hearing and for Sanctions on Petitioner tss Motion for an Emergency Emergency H He

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Sandra J. Weidner’s of Court for Violating the Court’s Seal er’s (“Alderperson (“Alderperson Weidne Weidner”) Contempt C Orders (the “Motion”). otion”).

INTRODUCTION

Alderperson Weidner has apparently intentionally defied this Court and violated the Court’s May 16, 2018 Order, ordering that the Court’s April 23, 2018 Decision and Order “remain sealed.” She has done so by knowingly providing a copy of the April 23, 2018 Decision and Order to non-parties.1 Her blatant disobedience resulted in a September 19, 2018 Milwaukee

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To be clear and to avoid any misrepresentation, the City and its counsel do not know with absolutely certainty that Alderperson Weidner was the one that provided a copy of the April 23, 2018 Decision and Order to non-parties. However, several reasonable inferences support that conclusion, including her statement to the reporter that she was willing to defy the Court’s seal order, the limited number of people that had access to the Decision and Order (the parties, their respective counsel, and the Court), and her counsel’s statement that it would be reasonable to infer that she was the one was shared the Decision and Order. In any event, any uncertainty will be cleared up once Alderperson Weidner is forced to testify under oath at a hearing on the Motion.

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Journal Sentinel online article, which also appeared on the front page of the newspaper the following day, that details this litigation and the Court’s April 23, 2018 Decision and Order. In that article, Alderperson Weidner makes no bones about her willful violation of this Court’s May 16, 2018 Order, stating: “To me, it’s huge issue. . . . I’m willing to defy the judge’s order that it’s sealed.”

Alderperson Weidner’s premeditated violation of this Court’s Orders constitutes contempt of court under Wisconsin common law and Chapter 785 of the Wisconsin Statutes.2 The City respectfully requests that this Court hold an emergency hearing earing on her contempt and, at

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a minimum, issue remedial sanctions in the form of $15,000.00 15,000.00 to the City under unde Wis. Stat. § un 785.04 as well as its attorney’s fees and costss re o this Motion. on. It aalso requests that this related to

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Court determine whether punitive sanctions, nctions, tions, including referral to the th district attorney for charges, may be appropriate givenn Alderperson Weidner’s blatant blatan defiance of this Court. As detailed blatan

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below, remedial sanctions are warranted be because Alderperson Weidner intentionally violated this becaus Court’s Orders and her actions cannot cann be reversed as the public now knows and will forever know about this action ction and the Court’s April 23, 2018 Decision and Order. The just remedy in this situation is sanctions in the form of $15,000.00 and attorney’s fees and costs.

FACTUAL BACKGROUND A.

Background Leading to the Court’s April 23, 2018 Decision and Order.

As the Court is fully aware,

2

Redacted Pursuant to 1.9.19 Oral Decision

As detailed below, Alderperson’s Weidner’s acts also violate the Court of Appeal’s July 12, 2018

Order.

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Redacted Pursuant to 1.9.19 Oral Decision

As a result, the

Redacted Pursuant to 1 9 19 Oral Decision

sought a

confidential and anonymous Board of Ethics advisory opinion regarding the possible ethical violations at issue whereby Alderperson Weidner would not even be named and could not be disciplined or reprimanded. This Court recognized that this approach was “good work by a City Attorney, if indeed, there is a concern regarding breaches of attorney-client privilege, and the two [prior] examples that he gave . . . go[] to the heart of attorney-client privilege.” (Cohen Aff. y-client -client privileg

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¶ 5, Ex. C, at 9.)3

Alderperson Weidner responded to the hee City C Attorney’s orney’s Office’s request re for an ethics

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advisory opinion by filing this mandamus 29, 2017, which she did not file damus mus action on November 29 under seal, thereby failing session information. Because this action g to protect confidential closed closed sse

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(1) pertained too communications that were by the attorney-client privilege, (2) we privileged p pertained to ann ethics advisory opinion process that was entitled to be anonymous and op confidential, and (3) 3) pertained pertain to confidential closed session information, the City sought to seal the pleadings.

(December 22, 2017 Notice of Motion and Motion to Seal.)

Alderperson

Weidner did not object to the City’s request and the Court agreed. Through a February 8, 2018 Order, the Court ordered in relevant part that: “[a]ny pleadings and the contents thereof filed under seal or ordered sealed in this lawsuit, including the exhibits thereto, may not be shared or disseminated by the parties or their counsel to non-parties to this lawsuit until otherwise ordered by the Court.” (Cohen Aff. ¶ 3, Ex. A, Feb. 8, 2018 Order, ¶ 3.) Shortly thereafter, the Court expanded that Order to ensure that all pleadings previously filed shall be sealed immediately and that all 3

The Court also explained to Alderperson Weidner “the sanctity that this Court and . . . all Courts give to attorney-client communications” because “nothing undermines and sinks ships more than the disclosure of that to third parties when it ought not to be disclosed.” (Id. at 16.)

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pleadings filed thereafter shall be filed under seal until otherwise ordered by the Court. (Cohen Aff. ¶ 4, Ex. B, February 13, 2018 Order, ¶¶ 1-2.) As a result, the entire case was conducted privately under seal.

B.

The Court’s April 23, 2018 Decision and Order and Its May 16, 2018 Order Sealing that Decision and Order.

On April 23, 2018, this Court issued its Decision and Order regarding the privileged nature of the subject Board of Ethics communications, ultimately determining that a large majority of the communications were in fact privileged and finding dingg no n basis to award

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Alderperson Weidner her attorney’s fees or costs under Wis. Stat.

Aff. ¶ 6, Stat. § 19.37(2). (Cohen ( Ex. D, April 23, 2018 Decision and Order.) The Court ourt expressly recognized rrecognized in its opinion that:

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“In view of the nature of these proceedings and this matter remains ngs an nd this Court’s prior rulings, rulin rul under seal for reasons previouslyy stated on the record.” ((Id. Id. at 11.)

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Through a subsequent sequent quent letter, Alderperson Alderperson W Weidner objected to this Court’s sealing of its April 23, 2018 18 Decision and Order.

(May 1, 2018 Attorney Hinkston Letter.)

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The City

disagreed with this his contention for several reasons, including that the decision identified Alderperson Weidner er as the subject of the Board of Ethics advisory opinion process that was intended to be anonymous, it detailed the non-public thought processes of the City Attorney’s Office, and Alderperson Weidner had offered no basis as to why there was a public benefit to unsealing the opinion. (May 2, 2018 Attorney Cohen Letter.)

In ensuring that the parties received a complete adjudication on this issue, the Court held a hearing on May 8, 2018 and determined that its decision and order would remain sealed.

(Cohen Aff. ¶ 7, Ex. E at 6 to 7.) Like all other hearings in this matter, Alderperson Weidner was present at the May 8, 2018 hearing and knew of the Court’s determination. This decision

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was memorialized in a May 16, 2018 Order, which stated: “[t]he Decision and Order shall remained sealed.” (Id. ¶ 8, Ex. F, ¶ 1.)

C.

Alderperson Weidner Failed to File Her Docketing Statement in the Court of Appeals Under Seal and in Doing So She Violated This Court’s Orders.

On June 27, 2018, Alderperson Weidner filed her Docketing Statement in the Court of Appeals and attached the Court’s April 23, 2018 Decision and Order. (Id. ¶ 9, Ex. G.) However, despite the prior, unambiguous Orders of this Court, she failed to file these pleadings under seal.

(See id.) The net effect of this error was that the April 23, 2018 Decision Decisi and Order was Decisio

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available to the world to see and Alderson Weidner unilatera rally ally granted granted herself a form of relief that she seeks via appeal (id. at 4)

i.e., the unsealing ing off the April April 23, 2018 Decision Decisio and Order.

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Upon receipt of the Docketing Statement, ent, counsel for the Cit City immediately contacted counsel for Alderperson Weidner Weidner (and her counsel) dner and explained that Alderperson Alderp Alder violated this Court’s Orders act immediately to rectify the problem. (Id. ¶ ers and that they should should ac 10.) After two Alderperson Weidner taking any action to rectify the wo days had passed without A violation, counsel contacted Alderperson Weidner’s counsel, this time via eel for the City again aag mail, and again demanded immediate action and threatened sanctions if action was not taken. man (Id., Ex. H.) On June 29, 2018, Alderperson Weidner filed a Motion for Order to Seal Pleadings in the Court of Appeals (id. ¶ 11, Ex. I)

a motion that should have been filed prior to, not after,

the filing of any Court of Appeal’s pleadings so as to not violate this Court’s Seal Orders. That same day, the City joined the Alderperson Weidner’s motion, through its Joinder and Response to Appellant Sandra Weidner’s Motion for Order to Seal Pleadings. (Id. ¶ 12, Ex. J.) On July 12, 2018, the Court of Appeals agreed with this Court’s determination and it granted the motion and sealed the court’s entire file. (Id. ¶ 13, Ex. K.) In its Order, the Court of Appeals recognized that this Court “under its inherent power to preserve and protect the exercise 5 1970866.1

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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 so requires it.” (Id. at 2.) It explained: “the circuit court determined that it was appropriate to seal the circuit court file . . . [b]ased on the circuit court’s decision to seal its entire record and the parties’ agreement, we conclude it is appropriate to seal this court’s file. As such, any submission to this court, including appellate briefs, will be sealed.” (Id.) D.

Alderperson Weidner Blatantly Defied This Court’s Seal Orders by Providing the Court’s April 23, 2018 Decision and Order to Non-Parties.

Partie Parties

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On September 19, 2018, an article appeared on JSOnline.com Racine County, a nline.com line.com titled “In R court fight over access to public records is foughtt in secrecy.”

14, Ex. L.) The ecrecy.” (Cohen Aff. ¶ 14

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next day, the same article appeared on the fr Milwaukee Journal Sentinel front ont page of the Mil Milw newspaper. (Id. ¶ 15, Ex. M.) As is clear from reading the article, Alderperson Weidner spoke ar

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with its author, Bruce ce Vielmetti. ielmetti. She is quotedd as a stating: “To me, it’s huge issue. . . . I’m willing to defyy the judge’s order that it’s sealed.”

She further reveals closed session confidential s information regarding rding ng the City’s Executive Committee’s consideration of the privilege issue and its referral to the Board ard of Ethics.

Most critically, the article detailed this Court’s April 23, 2018 Decision and Order and in fact, quotes from that decision.

After reading the article, counsel for the City placed a call to Attorney Hinkston to inquire as to whether he or Alderperson Weidner provided the reporter with the April 23, 2018 Decision and Order in violation of the Court’s Seal Orders. (Cohen Aff. ¶ 16.) Mr. Hinkston responded by indicating that he did not disclose the Decision and Order to the reporter and would not encourage or condone the violation of the Court’s Seal Orders. (Id.) Mr. Hinkston further stated that he could understand that it was reasonable to infer that Alderperson Weidner 6 1970866.1

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disclosed the Decision and Order to the reporter given her comment in the article that she was willing to defy the judge’s order that the Decision and Order is sealed. (Id.) He further stated that he did not want to divulge any client confidences in further discussing the issue. (Id.) LEGAL STANDARDS A.

This Court Has Jurisdiction Over This Motion.

While Petitioner Weidner has filed a notice of appeal, this Court still has the jurisdiction to hold a hearing and decide the present Motion. Under Wis. Stat. § 808.07(2)(a), “during the pendency of an appeal, a trial court may . . . make any order appropriate the existing ropriate opriate to preserve pres state of affairs.” Wis. Stat. § 808.07(2)(a)3. As an additional dditional ditional reason, reason, Wis. Sta Stat. § 808.075(3) permits the “circuit court to act on all issues unt until transmitted to the court of ntil il the record has been transm appeals.” Id. The record has yet too be transmitt ed; an and transmitted; d even if it had been, Wis. Stat. § 808.075(3) establishes that circuit at the cci rcuit court may act as provided in Wis. Stat. § 808.075(1), which in turn establishes tha regardless s of whether an appeal is pending, a circuit court may act stablishes tablishes that under Wis. Stat. above. t. § 808.07, the statue noted n B.

Contempt ntempt of o Court Standards.

“It is well settled beyond any question in Wisconsin that all courts have an inherent power to hold in contempt those who disobey the court’s lawful orders.” State v. Lehman, 137 Wis. 2d 65, 87-88, 403 N.W.2d 438 (1987). This power exists independent of statute and is discretionary. Id.; In re Paternity of D.A.A.P., 117 Wis. 2d 120, 127, 344 N.W.2d 200 (Ct. App. 1983) (“A court’s power to hold in contempt . . . is discretionary.”).

Statutory provisions also give the court the power to hold individuals in contempt, and in Wisconsin, Chapter 785 of the Wisconsin Statutes addresses contempt of court. See Wis. Stat.

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Ch. 785. Under Wis. Stat. § 785.01(1), contempt of court means intentional “disobedience, resistance or obstruction of the authority, process or order of a court.” Id. A court may impose remedial and/or punitive sanctions for contempt of court. Wis. Stat. § 785.02. Remedial sanctions focus on the rights of the party aggrieved by the disobedience to the court. See Wis. Stat. § 785.03(1)(a); Frisch v. Henrichs, 2007 WI 102, ¶ 35, 304 Wis. 2d 1, 736 N.W.2d 85. “A person aggrieved by a contempt of court may seek imposition of a remedial sanction for the contempt by filing a motion for that purpose in the proceeding to which the contempt is related.” Wis. Stat. § 785.03(1)(a). The court, after notice may impose otice and hearing, hear

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a remedial sanction. Id.; see also Evans v. Luebke, 2003 003 03 WI App 207, ¶ 24, 267 26 Wis. 2d 596, 671 N.W.2d 304 (recognizing that a hearing must be held upon the the filing of o a motion seeking

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remedial sanctions). “In a contempt is on the person against mpt proceeding proceedi procee ng g the burden of proof ppr whom the contempt is charged arged to show his conduct was not n contemptuous.” Balaam v. Balaam,

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52 Wis. 2d 20, 30, 0, 187 N.W.2d 867, 872 (1971).

(1971) (1

Wis. Stat. sanctions and provides that a court may impose one at. t. § 785.04 governs remedial re or more of the following: owing: (a) ( payment of a sum of money sufficient to compensate a party for a loss or injury suffered as the result of a contempt of court; (b) imprisonment; (c) a forfeiture not to exceed $2,000 for each day the contempt of court continues; (d) an order to ensure compliance with a prior order of the court; and (e) a sanction other than (a) to (d) if it expressly finds that those sanctions would be ineffectual. Wis. Stat. § 785.04.

Further, Wisconsin case law recognizes that attorney fees and costs are elements of damages recoverable for civil contempt pursuant to Wis. Stat. § 785.04(1). Town of Seymour v.

City of Eau Claire, 112 Wis. 2d 313, 320, 332 N.W.2d 821, 824 (Ct. App. 1983).

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Punitive sanctions are designed to punish contempt of court and they focus on upholding the authority of the court. See Wis. Stat. § 785.01(2). Punitive sanctions must be pursued by the district attorney of a county, the attorney general, or a special prosecutor appointed by the court.

Wis. Stat. § 785.03(1)(b). The district attorney, attorney general, or special prosecutor may issue the complaint on the request of a judge presiding in an action or proceeding. Id. ARGUMENT I.

ALDERPERSON WEIDNER HAS VIOLATED THIS COURT’S SEAL ORDERS CONSTITUTING CONTEMPT OF COURT AND AN EMERGENCY HEARING ERGEN RGE IS NECESSARY. Under Wisconsin common law and Wis. Stat. § 785.01(1), Alderp Al erson rsoon Weidner has

committed contempt of court by knowingly disobeying isobeying sobeying orders of the court. The T Court’s May 16, 2018 Order makes clear that the Court’s and Order is to “remain urt’s April 23, 2018 Decision Decisi Decis sealed.” The Court’s prior ruary 13, 2018 establishes that all pleadings filed are or Order of Fe February sealed and remain has knowingly disobeyed these Orders by ain sealed. Alderperson Weidner Weid W providing a copy pyy of the Decision and Order to non-parties. This act was deliberate, intentional, and in complete disregard sregard to t the function and power of this Court. It constitutes contempt under Wisconsin common law and Wisconsin statutes. As such, an emergency hearing is necessary to call Alderperson Weidner forward to account for her disobedient acts. She will have the burden to show that her conduct was “not contemptuous.” Balaam, 52 Wis. 2d at 30.

II.

REMEDIAL SANCTIONS ARE WARRANTED. As detailed above, remedial sanctions are appropriate for contempt of court and they

should properly remedy the harm to the party aggrieved by the disobedience to the court. Wis. Stat. §§ 785.02; 785.03. Under Wis. Stat. § 785.04(1), Wisconsin law authorizes remedial sanctions in the form of payment of a sum of money sufficient to compensate a party for a loss or

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injury suffered as the result of a contempt of court, or alternatively, sub-section 1(e) of the statute contains a catchall permitting any form of sanction if those specifically articulated in the statute “would be ineffectual.”

Here, Alderperson’s acts cannot be undone

the proverbial “cat has been let out of the

bag.” The public now knows and will forever know about this action, its background, and the Court’s April 23, 2018 Decision and Order because Alderperson Weidner has violated the Court’s Seal Orders. She shared the April 23, 2018 Decision and Order with one of, if not the, largest news outlet in Wisconsin, leading to a publication that will exist. The impact of illl forever exis her admitted willfully defiance of this Court’s Seal Orders Given her rders ders continues in perpetuity. perpetuit perpetu bold statement that she is “willing to defy the hee judge’s judge ju ’s order rder that it’s sealed,” sealed unless this Court acts, it is highly likely that she will continue tinue to violate its Seal Orde Orders.

Given that it is impossible mpossible possible to reverse Alderperson Alderperson Weidner’s defiant acts, the impact on the City is harsh. h. Without limitat limitation, the public now knows about closed session confidential information;4 knows that the City Common Council members have disclosed privileged information to those se outside City government, which arguably will result in those outside of City government probing Alderpersons for privileged information more frequently, knowing that disclosures occurred in the past; and knows about the subjects of an intended confidential and anonymous Board of Ethics advisory opinion process, threating the board’s ability to perform its function in a fair and impartial manner and threatening the future viability of this process.

As such, it is difficult to fashion a remedial sanction to fully account for the impact of Alderperson’s Weidner’s acts. The City submits that under Wis. Stat. § 785.04(1)(a), an award

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Alderperson Weidner’s unilateral acts usurped the Common Council’s Executive Committee’s express authorization and ability to hold closed sessions, a power granted to it by the legislature under Wis. Stat. § 19.85. These acts threaten the City’s ability to conduct business in closed session and its ability to act in its best interests.

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of at least $15,000.00 is appropriate given the seriousness of the violation. In addition, the City should be awarded its attorney’s fees and costs associated with this Motion as is authorized under Wisconsin law. Town of Seymour, 112 Wis. 2d at 320.

Further, in authorizing sanctions is important to consider the entire history leading to the point, which underscores Alderperson Weidner’s repeated, conscious disregard for protecting confidential information and conscious disregard for the judicial system. First, this entire action

Redacted Pursuant to 1.9.19 Oral Decision

arises out of

Second, she responded to the anonymous and confidential Board of Ethics request by filing this th action, which

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she failed to file under seal, and in doing so, revealed session information and evealed vealed confidential confidentia closed d sess nullified any anonymity in the ethhics advisory s opini opinion process. rocess. Third, she failed to file her

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Docketing Statement in thee Court of Appeals ls under seal and peals a attached this Court’s April 23, 2018 Decision and Order nt, and thus, violated this Court’s Seal Orders. rder to he her Docketing Stateme Sta

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Finally, she shared April 23, 2018 Decision and Order with non-parties in direct ared this Court’s Apr Apri contravention to this Cou Court’s Seal Orders, leading to widespread public dissemination of information regarding a lawsuit that was entirely sealed. Remedial sanctions are warranted against this backdrop.

While the City is not specifically requesting imprisonment of Alderperson Weidner, it submits that Alderperson Weidner be admonished that imprisonment is an option for the Court under Wis. Stat. § 785.04(1)(b) should she continue to defy the Court’s Seal Orders, including if she publicly discloses the adjudication of this Motion.

Similarly, while the City is not

specifically requesting punitive sanctions under Wis. Stat. 785.03(1)(b), it is not opposed to this

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Court’s consideration of punitive sanctions, including this Court’s request to a district attorney or special prosecutor for charges, given the seriousness of Alderperson Weidner’s intentional acts.

CONCLUSION For the foregoing reasons, the City respectfully requests that this Court schedule an emergency hearing and determine that Alderperson Weidner is in contempt of court for violating this Court’s Seal Orders and issue a remedial sanction of $15,000.00 and attorney’s fees and costs.

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Dated this 21st day of September 2018.

MEISSNER SSNER R TIERNEY FISHER & NICHOLS S.C.

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by Michael J. Cohen By: B El ctronically signed ssi Michael ichael J. Cohen Bar No. 1017787 State B Email: mjc@mtfn.com E Dieter J. Juedes State Bar No. 1088880 Email: djj@mtfn.com 111 East Kilbourn Avenue, 19th Floor Milwaukee, WI 53202 Tel: 414-273-1300 Fax: 414-273-5840 Attorneys for Respondent, City of Racine

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STATE OF WISCONSIN

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CIRCUIT COURT

Page 1 of 93

FILED 01-16-2019 09-21-2018 Clerk of Circuit Court Racine County

RAC iNF c (20.17CV001644 2017CV001644

SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent.

AFFIDAVIT OF MICHAEL J. COHEN IN SUPPORT OF RESPONDENT CITY OF RACINE’S MOTION FOR AN EMERGENCY HEARING AND FOR SANCTIONS ON PETITIONER SANDRA J. WEIDNER’S CONTEMPT OF COURT FOR VIOLATING THE COURT’S SEAL ORDERS

State of Wisconsin Milwaukee County Michael J. Cohen, being duly swo 1.

deposes and states as follows:

I am an adult resident of the State of Wisconsin, licensed to practice law in the

State of Wisconsin, and appear in this matter as counsel for Respondent City of Racine (the “City”).

2.

This Affidavit is filed in support of the City’s Motion for an Emergency Hearing

and for Sanctions on Petitioner Sandra J. Weidner’s (“Alderperson Weidner’s”) Contempt of Court for Violating the Court’s Seal Orders.

3.

Attached hereto as Exhibit A is a true and correct copy of the Court’s Order dated

February 8, 2018.

4.

Attached hereto as Exhibit B is a true and correct copy of the Court’s Order dated

February 13,2018.

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5.

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Attached hereto as Exhibit C is a true and correct copy of the transcript from the

March 13, 2018 hearing in this matter.

6.

Attached hereto as Exhibit D is a true and correct copy of the Court’s Decision

and Order dated April 23, 2018.

7.

Attached hereto as Exhibit E is a true and correct copy of the transcript from the

May 8, 2018 hearing in this matter.

8.

Attached hereto as Exhibit F is a true and correct copy of the Court’s Order for

Judgment in the City of Racine’s Favor Dismissing the Case it its Entirety with Prejudice dated May 16, 2018.

9.

Attached hereto as Exhibit G is a true and correct copy of Alderperson Weidner’s

Court of Appeal’s Docketing Statement, filed in the Court of Appeals on June 27, 2018.

10.

Upon receipt of Alderperson Weidner’s Docketing Statement, I immediately

contacted Attorney Mark Hinkston, counsel for Alderperson Weidner, to explain that Alderperson Weidner had violated the Court’s Seal Orders by failing to file the Docketing Statement under seal and I requested that he act immediately to rectify the problem. After two days had passed without Alderperson Weidner taking any action to rectify the violation, I contacted Attorney Hinkston via e-mail on June 29, 2019. Attached hereto as Exhibit H is a true and correct copy of that e-mail.

11.

Attached hereto as Exhibit I is a true and correct copy of Alderperson Weidner’s

Motion for Order to Seal Pleadings, filed in the Court of Appeals on June 29, 2018.

12.

Attached hereto as Exhibit J is a true and correct copy of the City’s Joinder and

Response to Appellant Sandra Weidner’s Motion for Order to Seal Pleadings, filed in the Court of Appeals on June 29, 2018.

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13.

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Attached hereto as Exhibit K is a true and correct copy of the Court of Appeal’s

Order dated July 12, 2018.

14.

Attached hereto as Exhibit L is a true and correct copy of an article appearing on

line on JSOnline.com titled “In Racine County, a court fight over access to public records is fought in secrecy.” https://www.jsonline.com/story/news/politics/2018/09/19/wisconsin-openrecords-fight-plays-out-secrecy/1307258002/ (last visited September 20,2018 at 11:15 a.m.).

15.

Attached hereto as Exhibit M is a true and correct copy of the newspaper version

of the same article appearing on the front page of the Milwaukee Journal Sentinel on September 20, 2018.

16.

Upon learning from reading the above online article of the disclosure of the

Court’s April 23, 2018 Decision and Order to the reporter who authored the article, on September 19, 2018, I spoke by telephone with Attorney Hinkston, and inquired whether he or Alderperson Weidner provided the reporter the April 23, 2018 Decision and Order in violation of the Court’s Seal Orders. Mr. Hinkston told me that he did not disclose the April 23, 2018 Decision and Order to the reporter and would not encourage or condone the violation of the Court’s Seal Orders. Mr. Hinkston further stated that he could understand that it was reasonable to infer that Alderperson Weidner disclosed the April 23, 2018 Decision and Order to the reporter given her comment in the article that she was willing to defy the judge’s order that the Decision and Order is sealed. He further stated that he did not want to divulge any client confidences in further discussing the issue.

Dated this 21st day of September 2018.

O

Michael J. Cohen

3

CaseCase 2017CV001644 205 77 2017CV001644 Document Document

FiledFiled 01-16-2019 09-21-2018

Page 4 of 93

Subscribed and sworn before me this ,3j ^ day of September 2018.

JAN SZCZEPANSKI NOTARY PUBLIC, STATE OF WISCONSIN

.otary Public, ly Commission:

(a) i

^

//- Zi - Z.&Z /

4

2017CV001644 Document Document CaseCase 2017CV001644 205 77

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Page 5 of 93

FILED 02-08-2018 Clerk of Circuit Court Racine County 2017CV001644

STATE OF WISCONSIN

CIRCUIT COURT

RACINE COUNTY

SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent.

ORDER On February 5, 2018, the Court held a hearing to address, inter alia, the Respondent City of Racine’s (“City”) motion for an order that the City’s Brief in Support of its Motion to Quash Petitioner Sandra Weidner’s Petition for Writ of Mandamus under Wisconsin Statutes §§ 783.01, 802.06, and 802.08 (“Brief in Support of Motion to Quash”) and Affidavit of Scott R. Letteney in Support of the City’s Motion to Quash Petitioner Sandra Weidner’s Petition for Writ of Mandamus under Wisconsin Statutes §§ 783.01, 802.06, and 802.08 and exhibits attached thereto (“Affidavit of Scott R. Letteney”) filed under seal shall remain filed under seal in their entirety until otherwise ordered by the Court (the “Motion”). Petitioner Sandra J. Weidner appeared by Mark Hinkston of Knuteson, Hinkston & Quinn, S.C. The City of Racine appeared

by Michael Cohen and Dieter Juedes of Meissner Tierney Fisher & Nichols S.C. Petitioner Sandra J. Weidner did not object to the granting of the Motion.

For the reasons stated on the record, the Court grants the City’s Motion and Orders as

follows:

1993533.1

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1.

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Page 6 of 93

The City’s Brief in Support of Motion to Quash and Affidavit of Scott R.

Letteney and exhibits thereto filed under seal shall remain under seal in their entirety until otherwise ordered by the Court; 2.

Counsel for Petitioner Sandra Weidner shall have access to all pleadings filed

under seal, including the exhibits thereto, and may share copies of all such pleadings, including the exhibits thereto, with Petitioner Sandra Weidner; 3.

Any pleadings and the contents thereof filed under seal or ordered sealed in this

lawsuit, including the exhibits thereto, may not be shared or disseminated by the parties or their counsel to non-parties to this lawsuit until otherwise ordered by the Court; and 4.

The contents of any hearings in this matter that have been closed to the public

may not be shared or disclosed by the parties or their counsel to non-parties to this lawsuit until otherwise ordered by the Court.

Dated this 8th day of February, 2018

BY THE COURT: Electronically signed by Eugene A Gasiorkiewicz Circuit Court Judge

2 1993533.1

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FILED 02-13-2018 Clerk of Circuit Court Racine County 2017CV001644

STATE OF WISCONSIN

CIRCUIT COURT

RACINE COUNTY

SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent.

ORDER On February 13, 2018, the Court held a teleconference with counsel for Petitioner Sandra J. Weidner and counsel for Respondent City of Racine.

As discussed during the

teleconference, the Court Orders as follows: 1.

Any pleadings, including exhibits thereto, previously filed in this lawsuit and not

previously sealed shall be immediately sealed in their entirety until otherwise ordered by the Court.

2.

Any pleadings, including exhibits thereto, hereinafter filed in this lawsuit shall be

filed under seal and shall remain under seal in their entirety until otherwise ordered by the Court.

Dated this 13th day of February, 2018

BY THE COURT: Electronically signed by Eugene A Gasiorkiewicz Circuit Court Judge

1993533.1

EXHIBIT B

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Page 8 of 98 FILED 09-19-2018 Clerk of Circuit Court Racine County

2017CV001644

1

STATE OF WISCONSIN

CIRCUIT COURT

2

RACINE COUNTY

Branch 2

3 4

SANDRA J. WEIDNER,

5

Plaintiff,

Case No. 17-CV-1644

6

vs.

7

CITY OF RACINE,

8

MOTIONS

Defendant.

9 10

HONORABLE EUGENE A. GASIORKIEWIC

11

Judge Presiding

12 13

Date of Hea

14

March 13, 201

15 16

Leslie M. Johnson, RMR, CRR, CPE

17

Official Court Reporter, Branch 2

18

APPEARANCES

19

Attorney Mark Hinkston, appearing

20

for the Plaintiff.

21

MEISSNER, TIERNEY & NICHOLS, by

22

Michael Cohen and Dieter Juedes, appearing

23

for the Defendant.

24

City Attorney, Scott Letteney, present.

25

Plaintiff present in person.

EXHIBIT C

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2

1 2

Sandra Weidner versus City of Racine, case number 17-CV-1644.

Appearances, please?

MR. HINKSTON:

3

Good morning, your Honor.

4

Attorney Mark Hinkston on behalf of Sandra J. Weidner,

5

who appears in person.

MR. COHEN:

6

Good morning, your Honor.

Michael

7

Cohen and Dieter Juedes of Meissner, Tierney, Fischer, and

8

Nichols appearing on behalf of the defend nt, City of

9

Racine.

Also in court is Att rney S 'ott L tteney.

10 11

THE COURT: hearing where there wa

12

There

This i

a continuation from a prior

no response filed in this matter.

re 'Tarious motions filed by the defendant

13

in this

14

Mr. Hinkston in this matter.

The Court has received a briefing by

15

There was a supplemental pleading on your part

16

indicating, due to some illness why it was late, whether

17

the Court would accept it.

I don't know that Mr. Cohen objected to it, but

18 19

the Court did review the document and has considered the

20

document.

21 22 23

I've also received your response to that.

We should probably go ahead and proceed.

Mr. Cohen?

MR. COHEN:

Yes, your Honor, thank you.

As we

24

set forth in our brief, Wisconsin courts have recognized

25

repeatedly that mandamus is an extraordinarily legal

EXHIBIT C

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Page 3GO&fl82

3

1

remedy.

2

If you recall, there were two writs requested.

3

One was the documentation mandamus request, which was a

4

request in the complaint for whatever was to be submitted

5

to or was submitted to the Board of Ethics with respect to

6

the request that was made by the City to the Board of

7

Ethics.

8 9

The second was what we c'll the participation Mandamus request, which was a reques ' for

he Court to

10

order that the plaintiff wou d be allowed to participate

11

in the Board of Ethics oroceeding.

12

After we

led our motion in response for

13

Mr. Hinkston on benalf of Alderperson Weidner was that

14

they were not pursuing the participation Mandamus request,

15

but the

16

Mandamus for the production of materials that were

17

submitted to the Board of Ethics.

18

were continuing to ask this Court for a Writ of

Our response to that, your Honor, as set forth

19

in our reply brief is that that Mandamus request is moot.

20

Alderperson Weidner received the very materials that were

21

submitted to the Board of Ethics.

22

At the time the Board of Ethics received them on

23

December 5, 2017, her counsel, Mr. Hinkston, has had

24

possession of those same materials since February 5, 2018

25

and has had access to them pursuant to the Court's

EXHIBIT C

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4

1

2

February 8, 2018 order.

Since that date, the Wisconsin Supreme Court and

3

the Court of Appeals have defined what is moot and have

4

declared that a case is moot when the decision sought by

5

the parties cannot have any practical legal effect upon a

6

then-existing controversy.

7

Simply put, your Honor, it's our position that

8

Mr. Hinkston jumped the gun.

I think he

9

materials had been submitted

o the Board of Ethics at the

10

time he filed his complaint.

11

hought that

They were no , as set forth in City Attorney's

12

Letteney's affid vi

13

There w ss a delay after the closed session executive

14

due to the press of other business.

omi^ee meeting in which the City approved the request

15

to subm t the matter to the Board of Ethics before he

16

actually did submit those materials to the Board of Ethics

17

and all Common Council members including Alderman Weidner

18

received the materials at the exact same time.

19

So there's nothing for this Court to order since

20

Alderman Weidner and her counsel have those materials, got

21

them at the same time as the Board of Ethics.

22

she's requesting, so her request is moot.

That's what

23

Attorney Hinkston has argued that she should

24

still be entitled to her fees and costs but recognizes

25

that at the time she filed

excuse me.

At the time that

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5

1

Alderperson Weidner received the materials, the City

2

hadn't even been served yet.

3

the complaint is for what was submitted to the Board of

4

Ethics.

5

Of course, the request in

So there is no cause and effect.

Filing of the

6

lawsuit did not cause the materials to be turned over.

7

They were turned over at the same time that the Board of

8

Ethics received them.

9

What's more, to get her fe s and costs, she

10

would also have to be succes f’l on the position with

11

respect to the attorney-client privilege.

12

the Court even h s

13

moot.

I don't think

-> get to that because the request is

14

There was no real argument

15

THE COURT:

Let me stop you there for a second.

16

As

17

agree with you with respect to a number of issues that

18

you've raised here or proffering that you made.

19

ad Mr. Hinkston's brief in this matter, he may well

But he still is of the opinion that there was a

20

valid public record's request that you don't blanketly get

21

to say or counsel gets to blanketly say, hey, it's under

22

the guise of attorney-client privilege, and I give you

23

nothing and that the appropriate process there would be to

24

ask the Court to review these documents in-camera to make

25

a determination as to whether or not they were

EXHIBIT C

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6

1

attorney-client work product privilege and, therefore, not

2

subject to disclosure.

I think everyone agrees that if it is a

3 4

privileged document, it's not part of a public record's

5

request.

6

That wasn't done here.

There was no request from counsel or from you

7

for that matter of fact that the Court should review these

8

under a privileged docket or index as to

9

documents are not attorney-cl’ent or privileged,

10 11

hy these

statutorily-privileged docum nt ..

MR. COHEN:

Te did have that request, your

12

Honor, in our br ef

13

set forth our argument that we thought that the materials

14

' ere exempt.

15

THE COURT:

n support of the motion to quash.

But they don't

We

Attorney-client

16

privilege is a narrow exception under Wisconsin law,

17

especially in the face of public record's disclosure,

18

which is supposed to be open and obvious to everyone else

19

in the world.

20

MR. COHEN:

Understood.

So what I was going to

21

say was, alternatively, we argued that if the Court wanted

22

to review them more closely, we had submitted them.

23

That's why they were attached to the City

24

Attorney Letteney's affidavit if the Court wanted to

25

review them in-camera and, of course, Alderperson Weidner

EXHIBIT C

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7

1

now has them, has had them, as had her counsel under order

2

of the Court.

THE COURT:

3 4

Mr. Hinkston, you have the documents

now, correct?

5

MR. HINKSTON:

6

THE COURT:

Yes, your Honor.

They're still under my blanket

7

non-disclosure, but you have the documents, correct?

8

pitch here is that, hey, they're not atto ney-client or

9

work-product privilege, corre t?

10

MR. HINKSTON:

11

THE COU

12

MR. HI 'KS ON:

13

Tha 's one facet of it, yes. ’hat's your other facet?

That we had to file this lawsuit

to get those documents and to compel production.

14

THE COURT:

Didn't she get them along with every

15

other c unsel member when they were submitted to the

16

ethics?

17 18

Your

Does she doubt that?

MR. HINKSTON:

After the lawsuit was filed,

yes.

That could be purely coincidental as

19

THE COURT:

20

far as the Court's concerned.

21

MR. HINKSTON:

With all due respect, we believe

22

that there is enough there to create an inference that

23

this was

24

the cause of the production to the Common Council.

25

just have to show it was a cause.

We don't have to show that the lawsuit was We

EXHIBIT C

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8

1

THE COURT:

The Court rejects that outright.

2

Her affidavit is filled of, that this is a personal

3

vendetta by the City Attorney because she was running for

4

mayor.

5

record of that and really, Ms. Weidner, I want to tell

6

you.

There's not one scintilla of evidence in the

7

This gentleman works at the pleasure of the

8

Common Council.

9

Common Council to get rid of him.

10

You have a problem with

im, get the

T at' s

our option.

The Court complete v rejects any, with respect

11

to the issues that you have raised here with respect to

12

public record's

13

a vendetta

14

cc "s, any inference that this is done as

this gentleman.

I don't see any evidence of that, and the

15

Court's not going to hear it, period, flat out not hearing

16

it

17

that you got the documents in accord with everyone else.

The Court is satisfied that you got the documents,

I understand your frustration that perhaps at

18 19 20 21 22 23

Redacted Pursuant to 1.9.19 Oral Decision

, but that was not with the way the documents were sent to the Ethics Committee.

Nor did he, from the Court's perspective, did he seek a sanction against you personally.

Redacted Pursuant to 1.9.19 Oral Decision

24 25

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9

1

I think that's good work by a City Attorney if,

2

indeed, there is concern regarding breaches of

3

attorney-client privilege,

Redacted Pursuant to 1.9.19 Oral Decision

4 5 6

, it goes to the heart of attorney-client privilege.

You don't want your client disclosing to

7

opposite parties the stratagem or what's going on in the

8

defense of the case.

9

er told you

Now, you at one poi t say

10

that, no one's ever told you that.

11

later on, which was vo uminous by the way, it indicated

12

that, look, I kn w

13

I'm not supposed to disclose information that's

14 15 16

onfident al.

Ms rule.

In your affidavit

I knew the city ordinance

mhat being said, here is what the Court's

going to do.

At least, I want to make sure.

I stated

17

something that everyone here agrees that attorney-client

18

or work-product privilege does not have to be disclosed

19

under public record's law.

20

concept, correct?

Mr. Cohen, you agree with that

Mr. Hinkston?

21

MR. HINKSTON:

22

THE COURT:

Yes.

That's fairly black-letter law in

Attorney-client privilege codified by 905.03,

23

this state.

24

protects confidential communications between clients and

25

their attorneys.

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10

1

The attorney-client privilege is narrowly

2

construed.

3

investigation of truth, Lane versus Sharp Packaging

4

Systems, 2002 WI 28.

The privilege is an obstacle to the

Wisconsin, like most jurisdictions, has

5 6

recognized only a narrow ambid in the communications

7

included within attorney-client privilege.

8 9

The seminal case of State^ex re k Dudek versus Circuit Court.

I think every lawyer

10

Cohen and my vintage, grew u

11

559.

12

1967.

T ith that case, 34 Wis.2d

That has been bo lerplate law in Wisconsin since There

13 14

cert inly of Mr.

p blic record's request.

The record custodian must make an initial ecision on whether the requested items are record or

15

whether any statutory or common law exceptions to

16

disclosure apply.

17

Policy, Inc. versus Erpenbach, 214 WI App 49.

18

John K. MacIver Institute for Public

Once that was done, you requested the documents

19

under open record.

20

to you because they're attorney-client work product

21

privilege.

22

Counsel said, one, not disclosing them

So he's explained his decision to you.

If the

23

custodian's decision is challenged, which it is with

24

respect to the nature of those communications, and whether

25

they are indeed attorney-client or work-product privilege,

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11

1

a court must make its own independent decision regarding

2

these matters, again citing Erpenach, paragraph 14.

3

The duty of the custodian is to specify reasons

4

for non-disclosure, and the Court's role is to decide

5

whether the reasons asserted are sufficient.

The burden of proof is on here, the City, with

6 7

respect to justifying that the particular items that were

8

requested and not disclosed were, in fact

9

or work-product privilege.

10

S

attorney-client

nere is what the Court's

going to do.

11

The Court's going to take, I think Mr. Cohen

12

eludes to it

13

falls to my shoulders with respect to the public record's

14

r

H nkston eluded to it.

I think now it

equest and whether there is any viability to it as to

15

whetner I want a privilege log with respect to each

16

document.

17

That has to be the burden of the City Attorney.

There is ample law that just because there is a

18

communication between counsel and a client, that may not

19

be work product or attorney work-product privilege.

Again, you have to understand this is narrowly

20 21

construed, and that's how this Court takes the law in this

22

regard.

23

So I am ordering the City to provide the Court

24

with a privilege log with respect to each of the items and

25

how they believe or what basis they believe it was

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12

1

work-product privilege and should, therefore, not have

2

been disclosed in the public record's request in this

3

matter.

4

With respect to the production, you have

5

production.

I'm finding that moot.

There is no merit to

6

that.

7

briefing that this is anonymous, that it was not seeking a

8

sanction against Ms. Weidner, she has no

9

participate in this ethic's p nel to give

With respect to the participation, based on the

ight to er point of

10

view, as they are not trying to sanction her for these

11

actions.

12

So I f nd '"hat as being moot.

The only

13

viability I have left is to whether or not there ought to

14

have neen disclosure of some of these documents under the

15

public record's request.

16 17

The Court will have that log.

Mr. Cohen, how

soon can you have that log to me, the privilege log?

MR. COHEN:

We can do that within 10 days, your

THE COURT:

All right.

22

MR. COHEN:

I think so.

23

THE COURT:

Mr. Hinkston should be provided

18 19

Honor.

20 21

24 25

Is 10 days sufficient

for you?

under keeping --

My gag order is on all of this.

So you should be provided with a reasoning as

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13

1

well.

2

days thereafter to reply to the Court on the proffered

3

reasoning.

If you want to make a reply to that, you'll have 5

4

MR. COHEN:

My plan, your Honor, was to go in

5

the order of the documents that appear in what we

6

submitted to you attached.

THE COURT:

7

That would be fine.

8

easier for the Court.

9

argument, I'll let you know

10

written decision.

11

MR. COH

12

THE CO rRT

13

MR

That would be

Thereafter, if I n ed more If not, I'll just render a

Tery good.

All right.

HINKSTON:

Thank you, your Honor.

Anything further?

Just briefly, your Honor.

At the

14

last near ng, lust prior to that, I submitted an amended

15

petitio

16

production, we were still seeking

for mandamus to clarify that, through the prior Redacted Pursuant to 1.9.19 Oral Decision

17 18 19 20 21

And, to that extent, the letters that we had

22

sent that composed the open record's request basically

23

asked for the

24

some point what was provided, we believe, is different

25

from that.

Redacted Pursuant to 1.9.19 Oral Decision

, and at

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14

1

It was a lesser amount of materials, lesser

2

amount of emails ultimately provided to the Common Council

3

on December 5.

4

And so, to that extent, we don't believe that

5

our request is moot, but they still have not provided the

6

entirety of those materials that were presented at the

7

Executive Committee Meeting, August 22.

THE COURT:

8 9

But to what end?

T e thrust of your

entire argument is that it go s to t e Eth cs Committee,

10

and somehow that has a bearing on Ms. Weidner's reputation

11

with the Common Counci .

12 13 14

To wha

e. d are you seeking these documents?

What is the rurpose?

vendetta or something targeting her.

15

I don't get what the logic is behind the

16

request.

17

had proffered here?

18

The purpose has to be somehow, it's

Of what relevance is it to whatever claim you

MR. HINKSTON:

Under the open record's law, and

19

I understand as a practical matter that's important to

20

know, but under the open record's law, we don't need to

21

specify the exact purpose.

22

But, as a practical matter,

Redacted Pursuant to 1.9.19 Oral Decision

23 24

25

Redacted Pursuant to 1.9.19 Oral Decision

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15

1

Redacted Pursuant to 1.9.19 Oral Decision

2 3 4

We believe that that paints the broad picture

5

here and does support our contention that, frankly, as

6

we've set forth, the affidavit infers that we believe that

7

this whole process before the Ethics Board was baseless.

8 9

THE COURT:

All right.

your argument here, Sir.

It s befuddling to me

I’ll be ve 'y hon st with you.

10

Mr. Letteney, what he wanted to Redacted Pursuant to 1.9.19 Oral Decision

11

Redacted Pursuant to 1.9.19 Oral Decision

12 13 14 15

Isn’t that what a lawyer for a municipality

16

ought to do in terms of improving the overall security of

17

communications?

18

And, again, it’s anonymously without trying to It was more a generic

19

sanction Ms. Weidner individually.

20

term of whether or not the Ethics Committee felt there was

21

a violation, one, anonymously, or two,

Redacted Pursuant to 1.9.19 Oral Decision

22 23 24

I don’t want anybody in this room, especially

25

Ms. Weidner, to understand the sanctity that this Court

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16

1

gives and, I think, all Courts give to attorney-client

2

communications.

There is a very-specific reason for that, and

3 4

nothing undermines and sinks ships more than disclosure of

5

that to third parties when it ought not to be disclosed,

6

and she falls under that vein.

7

Redacted Pursuant to 1.9.19 Oral Decision

8 9 I’m dealing with

10

the Ethics

11

Committee in an anonymous fashion.

12

copies of that.

13 14

sent to the Ethics Committee was

w.

Wh, eceived by Ms

You have received

idner and every other counsel member, so

rejecting your additional argument, although

15

the Cou t

16

I’m not exactly sure if your amendment was ever actually

17

re-filed.

18

I rejected receipt of it.

I’m not sure it has

19

been filed and accepted by this Court.

20

it was, I am rejecting that argument.

21

think it was ever accepted.

22

Mr. Cohen?

23 24 25

MR. COHEN:

But to the extent Again, I don’t

So anything further then,

No, your Honor.

Do you need an

order at this time?

THE COURT:

I think we need to put everything in

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1

the form of an order here.

2

MR. COHEN:

I'll prepare one.

3

MR. COHEN:

Thank you.

4

MR. HINKSTON:

5

(Hearing adjourned).

Thank you.

6 7 8 9 10 11 12 13 14 15 16 17

D E L A E S

18 19 20 21 22 23 24 25

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18

1

STATE OF WISCONSIN)

2

)

3

COUNTY OF RACINE

SS:

)

4 5 6 7 8

I, Leslie M. Johnson, RMR, CRR, CPE, Offic ffic

9

Branch 2, do hereby certify that the f

D E L A E S

10

constituting of 18 pages inc nc

11

transcript of the proc c oc

12

2018.

13 14 15 16 17

ourt Reporter, o

Dated d thi i

9

ng g

e

i

anscript a

ue and accurate an a

n on the th 13th day of March,

day of September, 2018. da d

18 19

Leslie M. Johnson (electronically signed)

20 21

Leslie M. Johnson, RMR, CRR, CPE

22

Official Court Reporter, Branch 2

23 24 25

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FILED 09-19-2018 Clerk of Circuit Court 1 Racine County 2017CV001644

1

STATE OF WISCONSIN

CIRCUIT COURT

RACINE COUNTY

Branch 2

2 3

---------------------------------------------------------------

4

SANDRA J. WEIDNER, Plaintiff,

5 6

vs.

7

CITY OF RACINE, Defendant.

8 9

Case No. 17-CV-1644

D E L A E S

----------------------------------

10

HONORABLE EUGENE A. GASIORKIEWICZ KIEWICZ CZ

11

Judge Presiding

12 13

Date of Hearing: ring: r i g: rin

14

May 8

15

---------------------------------------

2018 20 8

16

Leslie M. RMR, CRR, CPE Joh M. Johnson, Jo

17

Official Court Reporter, Branch 2

18

APPEARANCES

19

Attorney Mark Hinkston, appearing

20

for the Plaintiff.

21

MEISSNER, TIERNEY & NICHOLS, by

22

Michael Cohen, appearing for the

23

Defendant.

24

City Attorney, Scott Letteney, present.

25

The Plaintiff appears in person.

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2

1

THE COURT:

Sandra J. Weidner versus City of

2

Racine, case number 17-CV-1644.

3

Gasiorkiewicz.

I'm Judge

Appearances, please.

MR. HINKSTON:

4

Good morning.

Good morning, your Honor.

5

Attorney Mark Hinkston on behalf of Petitioner, Sandra J.

6

Weidner.

MR. COHEN:

7

Good morning your Honor. r H

8

Cohen, Meissner, Tierney, Fischer r

9

of the City.

10 11

D E L A E S Also in court i

THE COU OU U

here today y b

13

actio io ,

C

i

d

m

A

e , Scott

n

an

asked both of you to be a I as

qu ues uest es for dismissal of this r ques quest

er. er

was wa essentially some objection and

15

clar

16

reply ply b eply

by Mr. Cohen in that regard.

17

hols on behalf i h

Letteney.

12

14

an

Michael

io requested by Mr. Hinkston. ion

There was a

As I take it, basically, there is no problem

18

with dismissal of the case.

19

agree with that decision in that regard, but you are not

20

taking issue with respect to that request.

21

I appreciate that you may not

It is more with the disclosure of information

22

and what would be disclosed in this matter.

23

correct, Mr. Hinkston?

24

MR. HINKSTON:

25

THE COURT:

Is that

Correct, your Honor.

As I understand, Mr. Cohen's initial

EXHIBIT E

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3

1

response here, one of the things you wanted, an abundance

2

of caution, I thank you for that, is that you didn't

3

disclose, I think it was my April 23, or you're seeking

4

permission to disclose that to the Ethics Board.

5

correct?

MR. COHEN:

6

That's correct, your Honor.

Is that

If you

7

recall, the Chairperson of the board appeared on one pp ppe

8

occasion, and they're waiting for r res

9

Honor.

10

D E L A E S Since they ar

11

under the prior o

12

we intended d ed

13

Board rd

14

f

g

b

e a

urt

of

opy of the decision to the Ethics t

rmitted. rmi rm

COURT: COUR COURT CO

I am a little confused by your

stat

16

What -at di d dis i hat a disclosure

17

proceedings that's gone on so far?

Mr. Cohen.

M Mr

Part of the City, meaning what?

Has there been disclosure of the

MR. COHEN:

18

City, they would be City i

wanted to make it clear that

15

19

t on o from your

They know of the proceedings per se

because the Chairperson was here.

THE COURT:

20

Ms. Wyant was here, but I had her

21

removed.

I am assuming that since my gag order from that

22

point on, she was not made privy to anything that was

23

going on in this case.

24

MR. COHEN:

That's correct.

25

THE COURT:

Mr. Letteney, is that accurate?

EXHIBIT E

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4

1

MR. LETTENEY:

Your Honor, I did see her outside

2

of City Hall one day, and I told her the case wasn't

3

concluded.

4

That's the only conversation I had with her.

THE COURT:

I have had a chance to go over this,

5

and I've got several comments to make regarding the

6

request from both parties.

7 8

As I looked at this matter, the he request by

Redacted Pursuant to 1.9.19 Oral Decision

9 10 11 12 13 14 15 16 17 18 19

Specifically, section 2-577, which is the policy

20

of the City of Racine setting acts that were incompatible

21

with the best interests of the City.

22

Section 2-578, which essentially defines

23

confidential information, is not otherwise subject to the

24

public records law, which we'll discuss in a moment, which

25

has essentially the heart of the rub here, as the Court

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5

1

saw it in at least the legal proceeding, plus marked or

2

designated, quote, confidential.

If anything has come from this, I hope it's been

3 4

learned that since an attorney places something as

5

confidential information does not automatically make it an

6

attorney-client privileged information.

Also in that section, 2-578, is privileged

7 8

information is a definition under r the he

9

obtained under government autho utho

10

D E L A E That's s

12

attorney-cli li cli

13

That' t'

15

ordinance, info

n

r

of the body

of public information. .

11

14

t

r

n

i

ar

e

S

er

e

d distinct from distin disti

ge or attorney-work product. a at

distinct definition under the city dis di i

Also Al Als Als have section 2-581, prohibited conduct that

16

an or employee should not disclose Alde ld n Alderperson Alder

17

confidential information or privileged information gained

18

in the course of or by reason of his or her official

19

position or official activities.

20

We then, of course, have section 2-585(a), which

21

was the cover provision of the cover letter,

22

Mr. Letteney's December 4, 2007 letter to the Board of

23

Ethics in this matter seeking an advisory opinion, and (b)

24

of that section talks about their opinion not being made

25

public in that regard and prevents disclosure of the

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identities of individuals included in the opinion.

2 3

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f

f

f

4 5 6 In fact, included in those were ere re the same

7 8

documents that this Court reviewed d to t

9

they were privileged, not privil rivil i --

d

t rmine whether r

D

orney-client o

10

privilege and the redac ac

11

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12

E S

e

13

of

to the issue of whether we release

14

y

23 of 2018.

2

Mr. Cohen is correct.

15

I dr

16

dissemination of it that that was subject to my issemin ssemi se issemi

17

confidentiality rule.

When

that, I included in the body of it as well as in th t tha

Clearly within the caption, it talks about

18 19

Ms. Weidner.

Talks about Ms. Weidner suing the City of

20

Racine in this particular case.

Redacted Pursuant to 1.9.19 Oral Decision

f

21 22 23 24

f f

f

25

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2 3 4

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5 6 7

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12 13 14

S

derstand your position there, Mr. Hinkston, derst ders

15

was

t you you believe initially she had a right to

16

participate in the ethics decision-making process under rtici articip artici

17

city ordinance.

The Court does not fault you for making that

18 19

claim.

20

request for Mr. Letteney on December 4 of 2017, that it

21

was for an advisory opinion, and those particular city

22

ordinances, she had no such right.

23

previously by this Court.

24 25

However, this Court has ruled that based on the

That has been ruled

While it is true that when the Court reviewed the document submitted to the Ethics Board, that issue

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8

1

here in my April 23, 2018, I found five of the submissions

2

to be non-privileged,

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2 3 4 5 6

f

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f

f

f

f

.

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7 8 9 10

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11 12

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13 14 15 16 17 18 19 20 21 22

The Court takes Mr. Letteney at his word here

23

that no action is contemplated or will be brought against

24

Ms. Weidner or the other two for ethics violations.

25

That's what his statement has been all along.

EXHIBIT E

Case 2017CV001644

Document 105

Filed 10-15-2018

Page 1 of 3 FILED 10-15-2018 Clerk of Circuit Court Racine County

DATE SIGNED: October 15, 2018

2017CV001644

Electronically signed by Eugene A Gasiorkiewicz Circuit Court Judge

STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY ______________________________________________________________________________ SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent. ______________________________________________________________________________ ORDER REGARDING RESPONDENT CITY OF RACINE’S MOTION FOR SANCTIONS ON PETITIONER SANDRA J. WEIDNER’S CONTEMPT OF COURT FOR VIOLATING THE COURT’S SEAL ORDERS ___________________________________________________________________________ On October 3, 2018, the Court held a due process hearing on Respondent City of Racine’s (“City”) Motion for Sanctions on Petitioner Sandra J. Weidner’s (“Ms. Weidner”) Contempt of Court for Violating the Court’s Seal Orders (the “Sanctions Motion”). The hearing was open to the public.

Ms. Weidner appeared in person and by Terry Rose of Rose & Rose and Mark Hinkston of Knuteson, Hinkston & Quinn, S.C. The City appeared by Michael Cohen of Meissner Tierney Fisher & Nichols S.C. Also present in court was Deputy City Attorney Nicole Larsen.

After considering the written submissions of the parties, hearing the testimony of the witnesses, and considering the exhibits admitted into evidence at the due process hearing and the arguments of counsel, for the reasons stated on the record, Court Orders as follows:

CASE NO. 17-CV-1644

Case 2017CV001644

Document 105

Filed 10-15-2018

Page 2 of 3

1.

The City’s Sanctions Motion is granted in part and denied in part.

2.

The Court finds Ms. Weidner in contempt of court under Wis. Stat. § 785.01.

3.

The Court orders the following remedial sanctions against Ms. Weidner under Wis. Stat. § 785.05(4)(1): a. Ms. Weidner shall pay the reasonable attorneys’ fees and costs incurred by the City in pursuing the Sanctions Motion under Wis. Stat. § 785.04(1)(a). i. The City shall submit its evidence of its attorneys’ fees and costs by October 15, 2018. ii. Ms. Weidner may file a response as to the reasonableness of the City’s sought attorneys’ fees and costs by October 22, 2018. iii. Based on the submissions, the Court will then determine whether a hearing on the reasonableness of the City’s attorneys’ fees and costs is necessary or whether the Court may enter a further Order as to the attorneys’ fees and costs to be awarded to the City without further hearing. b. Ms. Weidner shall pay a forfeiture of $1,000.00 per day for any continued (prospective) violations of this Court’s Seal Orders under Wis. Stat. § 785.04(1)(c). c. Based on Ms. Weidner’s purge or affirmation that she will not commit any continued violations of this Court’s Seal Orders on the record at the hearing, the Court stays execution on Ms. Weidner’s obligations to pay the above remedial sanctions until resolution of all appeals in this matter.

2 CASE NO. 17-CV-1644

Case 2017CV001644

4.

Document 105

Filed 10-15-2018

The Court will not impose any punitive sanctions against Ms. Weidner under Wis. Stat. ยง 785.04(1)(b).

3 CASE NO. 17-CV-1644

Page 3 of 3

Case 2017CV001644

Document 91

STATE OF WISCONSIN

Filed 10-01-2018

CIRCUIT COURT

Page 1 of 3

RACINE COUNTY

FILED 10-01-2018 Clerk of Circuit Court Racine County 2017CV001644

SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, A Wisconsin Mutual Corporation,

Case Code: 30952

Respondent.

MOTION TO UNSEAL RECORDS

Sandra J. Weidner by Rose & Rose, by Terry W. Rose moves the Court to reconsider and unseal the records in the above entitled matter, based on the following: 1.

There is insufficient reason to seal the record and court decision.

2.

It is presumed that all public records should be open to the public. State v. Unamed

Person No. 1 v. State, 203 Wis. 30, f 66, 260 Wis. 2d 633 3.

The Court of Appeals stated “sealing our records will not withhold our eventual decision

from public release�. If the Court Of Appeals decision is public, the Trial Court decision should be public.

4.

Even assuming arguendo that some emails are privileged, there is no reason to seal the

records in its entirety, but to only seal those emails the Trial Court ruled were privileged. The plaintiff never revealed the privileged emails.

5.

The Court dismissed the plaintiffs case and therefore erred when it enjoined the public

release of the decision of the court and record.

1

Case 2017CV001644

6.

Document 91

Filed 10-01-2018

Page 2 of 3

An Order that the action be dismissed terminates the case. The court erred in enjoining

release and sealing the record as the dismissal terminates the proceedings Wawrzyniakjowski v.

Hoffman & Billings Mfg. Co. 137 Wis. 629 (1909).

7.

The newspapers have an interest in opening the court file to public examination. State ex

rel. Bilder v. Delavan Tp. 112 Wis. 2d 539, 546 (1983).

8.

The Court in sealing the records failed to give sufficient weight to the public policy of

open records and giving “much weight to the beneficial public interest in open records”. State ex rel. Bilder v. Delavan Tp. 112 Wis. 2d, 539.

9.

The trial court failed to state reasons for sealing the records or consider a less restrictive

alternative such as sealing the privileged emails. State ex rel. Bilder v. Delavan Tp. 112 Wis. 2d, 539, 556-557.

10.

Plaintiff is a public official and part of the Governing Body of Racine, subject to scrutiny.

The documents relate to her position as a public official and the decision and order of the Court should not be hidden from public view. The City Attorney on behalf of the defendant’s cannot thwart the public interest in plaintiffs official conduct. State ex rel. Bilder v. Delavan Tp. 112 Wis. 2d 539, 556-558.

11.

The Bilder Court did not decide “whether a Circuit Court may ever use its inherent power

to seal court documents permanently”. State ex rel. Bilder v. Delavan Tp. 112 Wis. 2d p 559.

12.

The Trial Court exceeded its authority in permanently sealing the record in the Wiedner

case.

Dated this 1st day of October, 2018.

SIGNATURE PAGE TO FOLLOW 2

Case 2017CV001644

Document 91

Filed 10-01-2018

Page 3 of 3

ROSE & ROSE Attorneys for Sandra J. Weidner

By

LA

-. /g-c-y TERRYW-r^OSE State Bar No. 1011552

i *

5529 - 6th Avenue Kenosha, WI 53140 262/658-8550 or 262/657-7556 Fax No. 262/658-1313

3

(