WHEN EDUCATORS ARE SUBPOENAED TO TESTIFY IN A WISCONSIN COURT
May 7, 2018
Periodically, educators are asked to testify or issued a subpoena requiring them to testify in a court proceeding involving a student the educator sees in the course of his/her professional duties. Sometimes the court proceeding concerns a divorce or custody dispute; other times, it involves criminal conduct committed by or against the student. Regardless of the subject matter of the court proceeding, the educator will likely have questions about his/her obligation and authority to participate in such a proceeding.
A subpoena is a document directed to a person, which requires his/her attendance at a particular date, time, and place to testify as a witness. A subpoena duces tecum is a document that not only requires that the person attend a court proceeding and provide testimony, but also requires the person to bring with him/her any records under his/her control which he/she is bound by law to produce in evidence. Wis. Stat. § 805.07.
A subpoena may be issued by any judge, commissioner, or clerk of a court; the attorney general or any district attorney on behalf of the State; a magistrate, officer, arbitrator, board, committee or other person authorized to take testimony in the State; the chairperson of any committee of any county board, town board, common council or village board; an arbitrator, coroner, medical examiner, board (including a school board), commission, commissioner, examiner, committee; or the Department of Children and Families or a county child support agency. Wis. Stat. § 885.01.
The Wisconsin Statutes do not specify a minimum amount of time between the service of a subpoena and the date for compliance. Thus, a subpoena may be served at any time before the appearance date. However, if the time is too short, especially for a subpoena that requires the production of records, the court might agree that the subpoena was unreasonable. As a result, the court might refuse to enforce the subpoena.
For purposes of a civil action, including a family court action or other lawsuit, a subpoena is not valid unless it is accompanied by a check payable to the witness in an amount sufficient to reimburse the witness for travel expenses and to provide the witness with a witness fee. In addition, the subpoena must be served upon the witness using one of the following methods: (1) showing and reading it to the witness, (2) giving the witness a copy of the subpoena, or (3) leaving a copy of the subpoena at the witness’s abode. Wis. Stat. § 885.03.
It is different with a subpoena issued by a District Attorney or a Municipal Court Attorney in a criminal, juvenile delinquency, or forfeiture case. With such subpoenas, witness fees and travel costs do not have to be prepaid; rather, witnesses are issued checks following their appearance and testimony. In addition, service of such a subpoena may be completed by U.S. mail. Wis. Stat. § 885.06.
When an educator receives a subpoena duces tecum, which requires the educator to produce records, typically, the records requested are pupil records, which are maintained by the school district on a confidential basis pursuant to Wis. Stat. § 118.125 and the Family Educational Rights and Privacy Act (FERPA). In such cases, it is necessary for the school district to determine whether the records may be disclosed to the attorney and/or the court in accordance with the subpoena duces tecum. Sometimes the school district may not disclose the records without express written consent from the student’s parent/guardian. Other times, the records may be disclosed in accordance with an intergovernmental agreement between the school district and the local law enforcement agency/district attorney’s office. Still other times, the records requested are not confidential or the law explicitly permits the school district to release the specific records/information to a particular entity or individual in the context of a certain case. For example, Wis. Stat. § 118.125(2)(cg) requires a school district to share the attendance records of a student with law enforcement officials, who are investigating the student for truancy or a criminal or delinquent act.
In addition, periodically, an educator will receive a subpoena duces tecum from an attorney, which requires the educator to produce records to the court for an in camera review. Wis. Stat. §118.125(2)(f) allows for the school district to provide pupil records to a court in response to subpoena to be used only for purposes of impeachment of any witness who is testifying. In such cases, the court determines whether the pupil records, in whole or in part, are relevant and material to a witness’s credibility or competency and, therefore, should be turned over to the parties and their attorneys. In such cases, it is important for the educator to read the subpoena carefully so as to avoid inadvertently sending the records directly to the parties when the subpoena merely allows the educator to disclose the records to the court for this limited purpose.
In many cases, a conversation with the attorney, who issued the subpoena duces tecum (either by an administrator or the school district’s legal counsel) may help to narrow the request and/or address concerns about disclosure of confidential records. It may also help to persuade the attorney to withdraw the subpoena and to rely upon the records alone. This is true even when the subpoena has been issued by a District Attorney or Municipal Court Attorney. Occasionally, however, in order to address such concerns, it is necessary for the school district’s legal counsel to file with the court a motion to quash or modify a subpoena.
An educator must not ignore a subpoena. Wis. Stat. § 885.11 specifies the ways that the recipient of a subpoena may be punished for failure to comply with a subpoena, which include:
- Liability to the aggrieved party for all damages occasioned by the failure.
- An attachment to bring the noncompliant witness to court.
- Contempt of court, which may be punished by a fine not exceeding $200.
- Additional fines for the costs of apprehension.
Gipson Lumber Co. v. Schickling, 56 Wis. 2d 164, 168–69, 201 N.W.2d 500 (1972).
It is critical that educators do not attempt to comply with a subpoena that requires them to testify and/or produce records in a court proceeding involving a student the educator sees in the course of his/her professional duties alone, without involving a school district administrator in the process. To that end, many school districts have adopted policies, handbook provisions and/or other guidance to notify educators that the school district has an expectation that educators will notify an administrator about any and all communications, including subpoenas, from attorneys representing students or parents. For example, Monona Grove School Board Policy 8325 requires District staff members to immediately notify the building principal or Superintendent if he/she “is served with any legal document(s) such as a subpoena or summons and complaint, requiring this staff member to answer factual allegations or appear at a particular place and time to provide testimony and/or records pertaining to any matter related to the staff member’s employment…” Several school districts have hosted in-services and workshops for educators to help them understand the need to report attorney contacts and subpoenas.
For questions regarding this article, including inquiries about policy language and/or an in-service/workshop on the topic, please contact the author, Attorney Shana R. Lewis (email: firstname.lastname@example.org; telephone: 844.626.0902), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.
 This Legal Update reviews the rules regarding a subpoena issued in a Wisconsin Circuit or Municipal Court. Different rules apply to subpoenas issued by a Federal Court.
 In an expulsion hearing, a subpoena may be issued by the school board and the failure of the school board to issue a subpoena may constitute a denial of due process. Chad B. by Janesville Sch. Dist., (203) Apr. 1, 1993.
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