August 5, 2021 at 1:42 p.m.
A salute to judge Nielsen's commitment to open government
A salute to judge Nielsen's commitment to open government
Before he became a judge, Mr. Nielsen was a passionate advocate for property rights, particularly opposing the over-regulation of nonconforming homes. He once described his work to prevent burdensome regulations on such properties as his personal crusade, and he also fought against applying such restrictions retroactively to property owners who bought properties under different rules and had abided by them.
"Taxpayers who follow the rules and obey the law shouldn't have to worry about the makeup of the next zoning committee or what will happen in two or three years that will impact the value of their property," he once said.
As a judge, Mr. Nielsen made another important contribution, and arguably it has been even more important to the lives of countless citizens across the state: his commitment to open government.
In his open records and open meetings decisions, in his political outlook, in his judicial philosophy, Mr. Nielsen never wavered in his support of transparency. He took the state's open government laws seriously.
Never was that commitment more apparent than in a landmark decision in which he ordered the Oneida County sheriff's department to turn over records related to an allegation of sexual assault lodged against a sheriff's department officer. The outcome has helped ensure that officers in one jurisdiction can't job-hop to another jurisdiction when they engage in wrongdoing simply because their records are hidden from the hiring jurisdiction.
In the course of delivering that decision, judge Nielsen eloquently described just how important transparency was and is:
"In a democracy, or a democratic republic, certain principles are of paramount concern to ensure the sustainability of that form of government. In a government of, by, and for the people, there must be maintained a requisite degree of transparency. That is, people must be able to see how effectively their government functions. And there must be a free press, the Fourth Estate, as it has been called, in addition to the legislative, judicial, and executive branches of government to examine the workings of those branches and to inform the public of matters of importance to ensure that the government works as intended and that the rights and indeed the best interests of its citizens are respected and promoted."
Throughout his tenure, Nielsen was extraordinarily consistent in upholding those principles, and on more than one occasion he cited the Legislature's declaration that the policy of the state is that government at all levels must provide the "greatest possible information regarding the affairs of government" and that "only in exceptional cases may access be denied."
In the past few years, the past two governors of this state - Scott Walker and Tony Evers - both tried to gut the open records law by arguing that open records requests must include both a specific subject matter and time frame, even though state law clearly states that a request must have a specific subject matter or time frame. The point of the tactic is to foreclose requests for all records for certain time periods, requests that allow the public to review an official's activities generally over as matter of weeks or months, to see what they are doing and who they are having communications with.
It's important for overall accountability, and this recent tactic is how officials try to bully requesters to narrow their requests in a way that would allow them to not release many important documents.
To be sure, sometimes requesters can't specifically know what they are looking for until they see it. They know the broad category of records, or they know the date range, but it's unrealistic to expect a requester to ask for the smoking gun when it has been cleverly concealed. In these instances, the open records request is like a search warrant to look for evidence in a larger file.
In sum, requesters must be able to sort through the files of public records if transparency is to mean anything at all, and these days many officials are busy trying to eliminate the public's ability to do just that.
We bring this up because, in an open records case against Lakeland Union High School, over which judge Nielsen presided, this newspaper asked for all current faculty and staff disciplinary records for the previous five years.
LUHS contended that our request was not specific enough, and, what's more, claimed that asking for the disciplinary records of all 78 LUHS staff members amounted to nothing more than a "fishing expedition" that would encourage ever more blanket requests and turn the purpose of the open records law "on its face."
But judge Nielsen, true to his principles, held fast to his commitment to transparency. He pondered the argument and rejected it, ordering the records to be released and giving the newspaper one of the greatest open government quotes of all time:
"The school district says The Lakeland Times is on a fishing expedition," Nielsen said. "It might be, but (in Wisconsin) there's no closed season, no bag limits, and no license required for that kind of fishing."
Amen to that.
The case represents a quintessential example of what is happening in Wisconsin today. Judge Nielsen set a high bar in open government that all judges should attempt to attain, but, sadly, the trend is in the other direction. More and more court decisions are being rendered against transparency, and more and more judges have a commitment to special interests who desire government behind closed doors, out of the sunshine.
That judge Nielsen could make so many rulings against the cultural and political grain are all the more extraordinary given the current tilt against open government in Wisconsin. Secretive governors who brandish open government laws as a partisan weapon, an intransigent Legislature that hides its actions like a pack of cowards behind closed doors, an activist judiciary that uses court decisions to bypass elected lawmakers and rewrite transparency laws - this is the current state of affairs in Wisconsin.
But judge Nielsen has been different. As a judge he has resisted the activist temptation to write new law but has remained steadfastly loyal to the principle that a judge's role is to determine what the law is and to ensure that it is followed. As other judges have been busy rewriting the open government laws from the bench to make them weaker, judge Nielsen's consistent rulings upheld the state's statutory language and intent: that the law "shall be construed in every instance with a presumption of complete public access, consistent with the conduct of government business."
Judge Nielsen's retirement brings down the curtain on a remarkable tenure in the cause of transparency. Well done, judge Nielsen. We salute you for your work in upholding open government, and we trust that the citizens of Wisconsin will join us in celebrating your commitment and record.
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