STATE OF WISCONSIN
C O U R T O F A P P E ALS
DISTRICT II
Case No. 14AP2536-FT
DEMOCRATIC PARTY OF
WISCONSIN, et al.,
Petitioner-Respondent,
v.
WISCONSIN DEPARTMENT OF
JUSTICE, et al.,
Respondent-Appellant.
RESPONDENTS' MOTION FOR IMMEDIATE STAY
PENDING THEIR PETITION FOR SUPREME COURT
REVIEW AND FOR EX PARTE CONSIDERATION

INTRODUCTION

Pursuant to Wis. Stat. §§ 808.07 and 809.14 the
Wisconsin Department of Justice seeks immediate relief
from this Court's October 14, 2015, order that lifted the
circuit court's stay of its October 30, 2014, order for a writ of
mandamus. As this Court is aware, this case concerns the
public release of two prosecutor training videos discussing
prosecutorial techniques and sex crimes involving minors.
DOJ maintains that it is contrary to the public interest to
release the videos. DOJ will be petitioning the Wisconsin
Supreme Court for review of this Court's recent order
affirming the circuit court. For supreme court review to have

 any meanmg, it is necessary that the stay imposed by the
circuit court remain in place until these proceedings are
complete. If not, DOJ will effectively be denied its right to
petition for further review because, once released, there is no
possibility of un-releasing the videos.
Because

of

these

circumstances

and

the

public

importance of the 1ssues, DOJ respectfully asks that this
motion

be

considered

at

the

earliest

opportunity.

DOJ further believes that the circumstances justify ex parte
action on this procedural request.
The circuit court recognized the weightiness of these
concerns, even while it ruled in favor of the petitioner.
In granting a stay,

the circuit court understood the

importance of the stay until this case is finally resolved, and
thus acknowledged the irreparable harm that would occur if
further proceedings were effectively nullified.
This Court should do the same while the supreme
court considers DOJ's petition for review, which will be filed
in a matter of days. The Court should either enter a new
stay pending final resolution of this case or, to the same end,
reconsider its lifting of the circuit court's stay.

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 ARGUMENT

The decision to grant a stay pending appeal is
governed by factors found in State

v.

Gudenschwager,

191 Wis. 2d 431, 529 N.W.2d 225 (1995). To support a stay
pending appeal, a requesting party must make showings
that: (1) it is likely to succeed on the merits of its appeal;
(2) unless a stay is granted, the moving party will suffer
irreparable injury; (3) no substantial harm will come to other
interested parties; and (4) the stay will do no harm to the
public interest. Id. at 440. None of these factors is
dispositive. They are interrelated such that more of one may
excuse less of another. Id. at 441. Thus, for example, the
degree to which a party must demonstrate a likelihood of
success

"is

inversely

proportional

to

the

amount

of

irreparable injury" that would be suffered absent the stay.
Id.;

see

2000 WI

also

Scullion

App 120,

v.

Wis.

Power

'If 18 n. 14,

&

Light

Co.,

237 Wis. 2d 498,

614 N.W.2d 565.
The circuit court believed that these factors were met
and issued a stay pending appeal. That decision made sense
under the circumstances, and the same considerations merit
a stay remaining in place while DOJ seeks further review
with the Wisconsin Supreme Court. Above all, without a
stay, further review would be rendered meaningless because,
once the videos in question are released, there will be no
going back. Thus, this is a prime example of a case where a
stay is appropriate.
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 Beginning with the second factor-irreparability-it is
clear that the denial of a stay would essentially nullify any
further review, even if the supreme court were to accept
DOJ's position. If DOJ were to prevail on appeal, but
without a stay, the public will have suffered irreparable
injury because the videos will have been released contrary to
the public's interest. Once a record is released publically,
that cannot be undone. These circumstances show why a
stay is especially appropriate in a public records case.
See, e.g., Armada Broad., Inc. v. Stirn, 183 Wis. 2d 463, 470,

516 N.W.2d 357 (1994) (in a public records case, noting that
the court of appeals granted motion for stay pending appeal);
State ex rel. Richards v. Foust, 158 Wis. 2d 531, 535,

463 N.W.2d 378 (Ct. App. 1990) (granting stay pending
appeal) rev'd on the merits, 165 Wis. 2d 429, 477 N.W.2d 608
(1991).
Because the showing of irreparable harm is so strong
here, the showing under the remaining factors need not be
as strong. In any event, the other factors also support a stay
here.
Regarding the first factor-a likelihood of success­
"a high probability of success on appeal is not necessarily
required for a stay; rather, . . . the degree of likelihood of
success that justifies a stay in a particular case will depend
on the relative strength of the other factors." Scullion,
237 Wis. 2d 498, � 18 n. 14.

" 4"

 Here, there is precedent supporting DOJ's v1ew that
information and strategy stemming from a prosecutor's
experiences and cases should not be subject to disclosure.
See State ex rel. Richards

v.

Foust, 165 Wis. 2d 429,

477 N.W.2d 608 (1991) (holding that closed prosecutor's files
were not subject to disclosure and noting the public
importance of keeping historical data, witness statements,
and on-the-ground investigatory details private); Linzmeyer
v.

Forcey, 2002 WI 84, 'If 30, 254 Wis. 2d 306, 646 N.W.2d

811 ("Law enforcement records are generally more likely
than most types of public records to have an adverse effect
on other public interests if they are released"); id. at 'If 41
(noting as an important factor whether "techniques and
procedures

for

law

enforcement

investigations

or

prosecutions would be revealed").
And that is not the only consideration. Wisconsin public
policy places a high value on victim privacy, which DOJ
believes is implicated here regardless whether individual
names are used. Indeed, "minimiz[ing] further suffering by
crime victims" is an established public policy in Wisconsin.
Schilling

v.

State Crime Victims Rights Bd., 2005 WI 17,

'If 26, 278 Wis. 2d 216, 692 N.W.2d 623. Releasing in-depth
discussions among professionals about past events that was
intended only for training is contrary to that goal-such
release may reopen old wounds and garner new public
attention.

-5-

 Although this Court disagreed that these cases and
considerations should be extended to cover the present
scenario, these topics involve the weighing of public policy,
and the supreme court may come to a different conclusion.
The remaining factors ask whether harm will come to
the petitioners or the public if a stay is granted. There is no
good reason to think that harm to either would occur.
These videos relate to law enforcement techniques and
otherwise discuss past crime-related events. The petitioners
have provided no reason to think that they need them
immediately. Rather, the videos were initially sought in
anticipation of an election that is now past.
Likewise, there is no time-sensitive information in the
videos that the public might need now instead of later.
Rather, the public interest is best served by allowing this
litigation to reach finality after the supreme court decides
whether to accept review. If review is granted, that court
will be the ultimate arbiter of what best serves the public,
but only if a stay is imposed or continued now. It is DOJ's
view that the public is best served when prosecutors feel free
to exchange strategies at a training, without the concern
that the information will be widely available, especially
when the information includes details about sex crimes
against minors. DOJ should be allowed the opportunity to
meaningfully present that issue to the supreme court, as it
intends to do in the coming days via a petition for review.

.6.

 CONCLUSION

Pending further review by the supreme court, DOJ
respectfully moves this Court to stay the effect of the circuit
court's October 30, 2014, order and this Court's October 14,
2015, order by either issuing a new stay or by reconsidering
its lifting of the stay that the circuit court had entered.
Dated this 15th day of October, 2015.
Respectfully submitted,
BRAD D. SCHIMEL
Attorney General

c/(/C��

ANTHONY D. RUSSOMANNO
Assistant Attorney General
State Bar #1076050
Attorneys for Respondents­
Appellants DOJ and Kevin Potter
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 267-2238
(608) 267-2223 (Fax)
russomannoad@doj.state.wi.us

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