MADISON — The Court of Appeals is rejecting the state's argument that media companies and First Amendment advocates should not be allowed to intervene in a criminal appeal of one of Scott Walker's former aides.
In an order filed Wednesday, Judge Patricia Curley wrote that there's no indication the state is pushing for the unsealing of certain records in the case, which is what media companies want in the case.
"Because there is no reason to believe that the interest of the Intervenors is adequately represented by the State, we deny the motion for reconsideration," she wrote.
Earlier this month, the court allowed the group to join the appeal for the sole purpose of opposing a motion to seal court records filed by Kelly Rindfleisch, former deputy chief of staff to Walker when he served as Milwaukee County executive.
But last week, the state Department of Justice filed a motion urging the court to reconsider that move. The state raised a number of arguments, including that the court should not allow intervention in criminal cases — and that it didn’t have a chance to weigh in before the court made its decision.
The group’s attorney promptly responded Wednesday, slamming the Department of Justice for failing to push for public access to the documents.
Curley denied the Justice Department's motion on Wednesday, saying that Wisconsin courts have repeatedly allowed media organizations to intervene "to protect public access to court records." And she called the state's argument that the move would be disruptive to the criminal prosecution "unpersuasive."
"In its response to the motion to seal, the State took the position that the motion to seal was moot because the documents arrived under seal, thus avoiding the questions of whether the documents should remain sealed or be opened to the public," Curley wrote. "Even in the current motion to reconsider, the State does not argue that its interests are aligned with the Intervenors; it simply states that it has not yet had a chance to weigh in on the issue--despite filing this eleven-page motion."
Rindfleisch pleaded guilty in October 2012 to one count of felony misconduct in public office and was sentenced to serve six months in jail for doing campaign work on county time.
In her appeal before the 1st District Court of Appeals, Rindfleisch contended search warrants for her emails, home and office used in the secret “John Doe” investigation were overly broad.
The court has agreed to a request from the state to add records from that closed proceeding to the appeal. But Rindfleisch is asking that those records be kept secret.
Those granted intervenor status by the court were publishers of the Milwaukee Journal Sentinel, the Wisconsin State Journal, The Associated Press, Wisconsin Newspaper Association, Wisconsin Broadcasters Association, Wisconsin Freedom of Information Council, The Reporters Committee for Freedom of the Press and the American Society of Newspaper Editors.
"We're pleased that the court has affirmed the appropriateness of letting media organization weigh in on this important issue, and hope that the Justice Department will eventually join us in calling for the release of these records," said Bill Lueders, president of the Wisconsin Freedom of Information Council.
Dana Brueck, a spokeswoman with the state Department of Justice, said, "We acknowledge the court’s order, and we will address the remaining issues in litigation in due course."