Wisconsin Voter Alliance v. Kristina Secord ( 2023 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 27, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2023AP36 Cir. Ct. No. 2022CV443
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
WISCONSIN VOTER ALLIANCE AND RON HEUER,
PETITIONERS-APPELLANTS,
V.
KRISTINA SECORD,
RESPONDENT-RESPONDENT.
APPEAL from an order of the circuit court for Walworth County:
DAVID W. PAULSON, Judge. Reversed and cause remanded for further
proceedings.
Before Neubauer, Grogan and Lazar, JJ.
¶1 LAZAR, J. Wisconsin Voter Alliance and Ron Heuer (collectively
referred to as WVA) appeal the dismissal of their petition for a writ of mandamus
directed to Kristina Secord, the Walworth County Register in Probate, seeking to
No. 2023AP36
obtain Notices of Voter Eligibility containing information that is statutorily
required to be communicated and widely disseminated to local officials or
agencies throughout the State. See WIS. STAT. § 54.25(2)(c)1.g. (2021-22).1
Pursuant to direction of the Wisconsin Court System (Court System) by its
Director of State Courts, that statutory mandate is accomplished by sending all the
information to the Wisconsin Elections Commission (WEC) for compilation and
then WEC provides the information to the local election officials or agencies.
Secord contends that, because the documents sought are confidential and not
subject to public disclosure and/or because WVA has not demonstrated any need
for the information, the circuit court did not err when it protected the privacy and
sensitive information of individuals declared incompetent and that it appropriately
exercised its discretion by dismissing WVA’s petition.
¶2 WVA’s arguments raise two issues: (1) is the ineligibility voting
determination “pertinent to the finding of incompetency,” and, if so, has WVA
demonstrated “a need for the information” sufficient to warrant release of the
documents and/or information even if it is “pertinent to the finding of
incompetency,” and (2) is the Notice sent to election officials with the court’s
determination that a person is not competent to register to vote or to vote subject
to disclosure under the Public Records Law.
¶3 WVA has filed multiple requests to other Wisconsin county clerks of
court and has filed other petitions for writ of mandamus. At least one other circuit
court case has been appealed. Another district of the court of appeals has issued
1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
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an opinion that addresses the first issue (with respect to the definition of “pertinent
to the finding of incompetency”),2 and as a unitary court, we are bound by that
opinion’s decision3 to the extent it is not distinguishable.4 See State v. Olson,
2019 WI App 61, ¶¶15-19, 389 Wis. 2d 257, 936 N.W.2d 178. We, however,
disagree with the Reynolds court’s conclusion on the first issue, and absent the
2
See Wisconsin Voter Alliance v. Reynolds, 2023 WI App 66, ¶¶20-34, ___ Wis. 2d
___, ___ N.W.2d ___. As of this writing, the recommendation for publication has just been
approved. This court did not lightly forge ahead before publication; it is releasing this opinion
because it is appropriate and separate from that in Reynolds.
The procedural posture of Reynolds is distinguished from that in this appeal. In
Reynolds, the Juneau County Register in Probate filed a motion to dismiss the petition for writ of
mandamus on August 22, 2022, based upon WVA’s failure to comply with WIS. STAT.
§ 801.02(5), asserting that there was a lack of jurisdiction, insufficiency of process, and/or
insufficiency of service of process. As an alternative, Reynolds contended that WVA failed to
state a claim upon which relief could be granted. Two days later, without waiting for a response
from WVA, the circuit court issued a decision and order, dismissing the writ on the merits and
with prejudice. The Reynolds court did not have the benefit of a fully briefed, fully argued
underlying case. While the appeals may have started on the same track, their paths diverged, and
each was presented differently.
The dissent also makes note that WVA had not filed a petition for review of the Reynolds
opinion. See Dissent at n.2. That is neither here nor there and has no impact on the state of the
law nor on the viability of our opinion.
3
This practice is more fully explained in Cook v. Cook, 208 Wis. 2d 166, 189, 560
N.W.2d 247 (1997) as follows:
If the court of appeals is to be a unitary court, it must speak
with a unified voice. If the constitution and statutes were
interpreted to allow it to overrule, modify or withdraw language
from its prior published decisions, its unified voice would
become fractured, threatening the principles of predictability,
certainty and finality relied upon by litigants, counsel and the
circuit courts. Further, with the ability to rely on the rules set out
in precedent thus undermined, aggrieved parties would be
encouraged to litigate issues multiple times in the four districts.
4
The dissent asserts that this majority opinion’s chief flaw is its very existence. See
Dissent, ¶71. While the very same records sought by WVA are at issue in Reynolds and this
appeal, that is neither dispositive nor a basis upon which to avoid ruling on an issue previously
not decided. The question is whether the issues vary. And they do. At no point is the unified
voice of this court fractured by this opinion.
3
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Reynolds decision, we would have issued an opinion agreeing with WVA on the
first issue. Our analysis of that issue is set forth in the attached concurrence.
¶4 We hold that if the voter ineligibility determination is, in fact,
pertinent to the finding of incompetency, WVA has not only demonstrated a need
for this information but has demonstrated that it is entitled to the requested Notices
(in full or redacted form) pursuant to the Public Records Law.5 WVA has,
therefore, met all of the prerequisites to support its petition for a writ of
mandamus.
5
This majority opinion does not “upend” the Public Records Law; it lets the “sun shine”
in. See Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶2, 327 Wis. 2d 572, 786 N.W.2d
177 (“Open records and open meetings laws, that is, ‘Sunshine Laws,’ ‘are first and foremost a
powerful tool for everyday people to keep track of what their government is up to.... The right of
the people to monitor the people’s business is one of the core principles of democracy.’” (quoting
Editorial, Shine Light on Public Records, Wis. State J., Mar. 14, 2010, at B1)). “The legislature
has declared that we are dedicated to preserving an open and transparent government.” State v.
Beaver Dam Area Dev. Corp., 2008 WI 90, ¶2, 312 Wis. 2d 84, 752 N.W.2d 295.
Nor is the majority opinion “all hat and no cattle,” see Madison Teachers, Inc. v. Scott,
2018 WI 11, ¶40, 379 Wis. 2d 439, 906 N.W.2d 436 (Ann Walsh Bradley, J., dissenting); it
reaffirms Wisconsin’s longstanding goal of transparency and a “presumption of open access to
public records,” id., ¶17 (quoting Osborn v. Board of Regents of Univ. of Wis. Sys., 2002 WI 83,
¶13, 254 Wis. 2d 266, 647 N.W.2d 158).
As explained by our supreme court in Milwaukee J. Sentinel v. City of Milwaukee, 2012
WI 65, ¶4, 341 Wis. 2d 607, 815 N.W.2d 367:
Wisconsin’s commitment to open, transparent government
rings loud and clear in the Public Records Law. The Law
reaffirms that the people have not only the opportunity but also
the right to know what the government is doing and to monitor
the government. The legislature has explicitly provided that “all
persons are entitled to the greatest possible information
regarding the affairs of government”; mandated that the Public
Records Law “be construed in every instance with a presumption
of complete public access”; and declared that the “denial of
public access generally is contrary to public interest, and only in
an exceptional case may access be denied.” WIS. STAT. § 19.31.
4
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¶5 Accordingly, we reverse the circuit court’s order dismissing WVA’s
petition for writ and remand this matter for further proceedings consistent with this
opinion.
BACKGROUND
¶6 WVA sent an official request for public records to Secord on
June 28, 2022, after a previous request and some correspondence between the
parties. WVA sought information about wards under guardianship in Walworth
County, specifically the names, addresses, birth dates, and “a copy of all wards
under guardianship in [the] county.” On July 26, 2022, WVA clarified6 that it was
seeking completed GN-3180 forms from 2016 to the present and information
regarding guardianship of wards without voting rights for the same time period.
¶7 The requested forms7 are “Notices of Voting Eligibility,” which
indicate that a circuit court has found a person incompetent to exercise the right to
vote or restored a person’s right to register or vote. The forms themselves identify
the “Wisconsin Elections Commission” as the agency to which these notices
should be sent. See also WIS. STAT. § 54.25(2)(c)1.g. (“The determination of the
court [that a person is ineligible to vote due to incompetency] shall be
6
This also distinguishes this appeal from that in WVA v. Reynolds, because the Juneau
County Circuit Court did not allow WVA an opportunity to refine its request or to explain or
defend its petition. See Reynolds, ___ Wis. 2d ___, ¶¶12-13. Contrary to the dissent’s argument
at ¶75, WVA’s ability to present its arguments in carefully composed, detailed, written appellate
briefs is far afield from a summary explanation set out in a short email.
7
The Notice of Voting Eligibility (Form No. GN-3180) (as well as the Determination
and Order on Petition for Guardianship Due to Incompetency (Form No. GN-3170), the
underlying court order that finds a person incompetent) are templates created by the Consolidated
Court Administration Programs (CCAP), which provides computer automation to the Wisconsin
court system. Wisconsin Court System, Administrative Structure of the Courts (Nov. 2022),
https://www.wicourts.gov/courts/resources/docs/structure.pdf.
5
No. 2023AP36
communicated in writing by the clerk of court to the election official or agency
charged … with the responsibility for determining challenges to registration and
voting ….”).8 According to WEC, if and when it receives such a notice (and when
the notice includes sufficient information to identify a specific voter), it adds the
person to a list of disqualified voters that it publishes to local clerks, who perform
inactivation of voter registrations for such persons. That inactivation—or lack
thereof—is subject to public challenge. See WIS. STAT. § 6.48(3).
¶8 WEC also administers a public database called WisVote that
includes information about all voters in Wisconsin. This information, available to
any member of the public pursuant to Wisconsin’s Public Records Law, WIS.
STAT. §§ 19.31-.37, includes each voter’s name, address, voter status, and “Voter
Status Reason.” Sometime in 2022, WEC changed the “Voter Status Reason” for
a voter who had voting rights revoked due to a finding of incompetency from
“incompetent” to “administrative action.”9
¶9 WVA’s stated goals are “to improve the government’s accuracy in
the WisVote database so that the court orders restricting the voting rights of the
8
The statutory mandate directs clerks of court to disseminate the forms to the
appropriate county and municipal clerks or officials throughout the entire state and the Wisconsin
Court System has put in place a procedure to better coordinate the fulfillment to
that statutory mandate. There are 72 counties, 1,245 towns, 190 cities and 415 villages
(a total of 1,850 municipalities not including counties). See 2023-24 Wisconsin
Blue Book, Local Governments in Wisconsin, at 1, 2 and 4.
(https://docs.legis.wisconsin.gov/misc/lrb/blue_book/2023_2024/090_local_government_in_wisc
onsin.pdf). By requiring that the forms be sent to WEC (as is noted on the very face of the form)
and directing that WEC provide that information to the designated statutory recipients, the
Wisconsin Court System is complying with the statute. This procedure is further evidence that
the information on the Notice of Voting Eligibility forms is not inherently confidential due to the
legislature’s intent that such information could be received by any of over 2,000 county and
municipal clerks, and their employees and staff.
9
It is unclear why the WEC made the change in terminology.
6
No. 2023AP36
wards are honored” and “to protect wards under ‘no vote’ guardianship orders
from abuse.” On the same day it made its official request for records to Secord, it
filed a petition for mandamus in Walworth County Circuit Court seeking a writ
directing Secord to produce the requested documents.10 WVA asserted that the
requested information is “already intended to be publicly available” and that to the
extent WIS. STAT. § 54.75 applied, its request fell under the exception to the
confidentiality requirement therein. This statute provides:
All court records pertinent to the finding of
incompetency are closed but subject to access as provided
in [WIS. STAT. §] 51.30 or 55.22 or under an order of a
court under this chapter. The fact that an individual has
been found incompetent and the name of and contact
information for the guardian is accessible to any person
who demonstrates to the custodian of the records a need for
that information.
§ 54.75 (emphasis added).
¶10 After a hearing, the circuit court granted Secord’s motion to dismiss,
finding that WVA had no “clear legal right to access guardianship information,”
“the confidentiality of [WIS. STAT. §] 54.75 extends to ‘All court records’
including GN-3180” and “the completed form GN-3180 is a confidential record
and not a public document.” WVA appeals, conceding it is not entitled to actual
guardianship court orders and seeking reversal only with respect to “redacted
Notices [with] sufficient information … to identify the person with publicly
available WisVote data on that same person.”
10
As noted above, this type of request was also filed in other counties, and WVA has
filed other petitions for writ of mandamus where the requests were denied.
7
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STANDARD OF REVIEW
¶11 We will uphold the denial of a petition for a writ of mandamus
“unless the [circuit court] erroneously exercised discretion.” Lake Bluff Hous.
Partners v. City of S. Milwaukee, 197 Wis. 2d 157, 170, 540 N.W.2d 189 (1995).
That discretion “is erroneously exercised if based on an erroneous understanding
of the law.” State ex rel. Zignego v. WEC, 2021 WI 32, ¶38, 396 Wis. 2d 391,
957 N.W.2d 208 (quoting Lake Bluff Hous. Partners, 197 Wis. 2d at 170).
¶12 In order to determine whether there was an erroneous exercise of
discretion in this appeal, this court must look to the applicable statutes. Questions
involving statutory interpretation are reviewed de novo. Reyes v. Greatway Ins.
Co., 227 Wis. 2d 357, 364-65, 597 N.W.2d 687 (1999); see also State ex rel.
Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶¶44-51, 271 Wis. 2d 633, 681
N.W.2d 110. Even with a de novo review, we can still “benefit[] from the analysis
of the [circuit] court.” State ex rel. Rupinski v. Smith, 2007 WI App 4, ¶13, 297
Wis. 2d 749, 728 N.W.2d 1 (2006). Moreover, “[t]he application of the [Public]
Records Law to undisputed facts is a question of law that [the appellate] court
reviews de novo.” Zellner v. Cedarburg Sch. Dist., 2007 WI 53, ¶17, 300 Wis. 2d
290, 731 N.W.2d 240.
¶13 WVA’s petition for writ of mandamus was dismissed, pursuant to
WIS. STAT. § 802.06(2)(a)6., for a failure to state a claim upon which relief could
be granted. A circuit court’s dismissal order is reviewed independently. State ex
rel. Greer v. Stahowiak, 2005 WI App 219, ¶¶5-7, 287 Wis. 2d 795, 706 N.W.2d
161.
8
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DISCUSSION
¶14 This appeal requires us, once we determine11 if the records are
indeed public records and no exemptions apply, to analyze and balance the
interplay between various competing rights while, at the same time, protecting
both an individual citizen’s right to privacy in a matter of utmost importance to the
individual’s dignity as well as the right of every Wisconsin citizen to the
constitutional guarantee of fair elections. Teigen v. WEC, 2022 WI 64, ¶22, 403
Wis. 2d 607, 976 N.W.2d 519 (“If the right to vote is to have any meaning at all,
elections must be conducted according to law.”). An individual’s confidentiality
regarding a finding as to their competence—or lack thereof—is necessarily
juxtaposed against one of the underlying pillars of our democracy: the right to
vote. See League of Women Voters of Wis. Educ. Network, Inc. v. Walker, 2014
WI 97, ¶19, 357 Wis. 2d 360, 851 N.W.2d 302; see also WIS. STAT. § 6.84(1)
(“The legislature finds that voting is a constitutional right, the vigorous exercise of
which should be strongly encouraged.”).
¶15 Recognizing and carefully walking that tightrope, the legislature
created WIS. STAT. ch. 54 to safeguard individuals who are unable to take
adequate and appropriate care of themselves while at the same time affording them
privacy from public scrutiny and possible scorn or ridicule from the uninformed.
The confidential protections afforded to these individuals in need of care,
however, are not absolute—especially when they come into conflict with other,
just as important, basic rights, including the right not only to vote but to have only
11
There is no doubt that this court follows the well-established analytical path detailed
below, see infra paras. 24-31, and that WVA did not prevail “before the statutory analysis even
beg[an],” Dissent, ¶85.
9
No. 2023AP36
eligible votes considered in any election. See Zignego 396 Wis. 2d 391, ¶64
(Rebecca Grassl Bradley, J., dissenting) (“[R]etaining thousands of potentially
illegitimate registrations on Wisconsin’s voter lists substantially harms the
integrity of elections and dilutes or even cancels votes of validly registered
citizens. Removing ineligible voters from this state’s registration list is paramount
if Wisconsin takes seriously its obligation to ensure fair and honest elections.”).
¶16 When faced with that imperative underpinning12 of our democracy,
the right to vote in fair elections, our legislature declared that certain
confidentiality and privacy rights for wards under guardianship must be
constrained. Thus, once an individual is found to be incompetent and ineligible to
12
The court in State ex rel. McGrael v. Phelps, 144 Wis. 1, 14-15, 128 N.W. 1041(1910) (citations omitted), eloquently opined regarding the origins and establishment of the right
to vote in the United States Constitution as follows:
So the right to vote is one reserved by the people to members
of a class and as so reserved, guaranteed by the declaration of
rights and by sec. 1, art. III, of the Constitution. It has an
element other than that of mere privilege. It is guaranteed both
by the bill of rights, and the exclusive intrustment of voting
power contained in sec. 1, art. III, of the constitution; and by the
fundamentally declared purpose of government; and the express
and implied inhibitions of class legislation, as well….
Thus is given the right to vote a dignity not less than any
other of many fundamental rights. So it has been rightly said by
judicial writers, “It is a right which the law protects and enforces
as jealously as it does property in chattels or lands[.] The law
maintains and vindicates” it “as vigorously as it does any right of
any kind which men may have or enjoy.” State v. Staten, 46
Tenn. 233, 241.... It has been not inaptly characterized in these
lines:
A weapon that comes down as still
As snowflakes fall upon the sod;
But executes a freeman’s will,
As lightning does the will of God.
10
No. 2023AP36
vote,13 that information must be communicated to the state agency responsible for
elections (WEC) and subsequently published to the world (via the internet) and to
each individual voting precinct so that ineligible votes are neither cast nor counted
unless and until that voting eligibility is restored. The names and addresses of the
wards are transmitted to a public entity outside the judicial system via a Notice
form.
¶17 WVA raised concerns about the course and conduct of various
entities in this process. No parties to this appeal dispute that the circuit court
oversees guardianship proceedings and that the records, reports, and transcripts14
leading up to a final order in which incompetency is found are statutorily
confidential. No party disputes that if a ward who is found to be incompetent is
also found to be ineligible to vote, the circuit court must communicate that voter
ineligibility to WEC, the agency whose express and sole purpose is to ensure fair
elections in Wisconsin. See WIS. STAT. § 5.05(1). And, no party disputes that
individuals who are ineligible to vote are not permitted to vote. Correspondingly,
we assume that all parties in this appeal—indeed all Wisconsin citizens—desire,
13
Obviously, not all individuals found to be incompetent lose their right to vote. “The
court may, as part of a proceeding under [WIS. STAT. §] 54.44 in which an individual is found
incompetent and a guardian is appointed, declare that the individual has incapacity to exercise
one or more of the following rights:” The right to consent to marriage, to execute a will, to serve
on a jury, to apply for an operator’s license, to consent to sterilization, to consent to organ, tissue
or bone marrow donation, and to register to vote or to vote in an election. WIS. STAT.
§ 54.25(2)(c)1.
14
It is logical to assume that transcripts of hearings, where sensitive, confidential
information, reports, and testimony is taken and the actual finding of incompetency is made,
would be considered confidential. We, however, note that while such hearings are closed to the
public by statute, the ward or his/her attorney are allowed to move that the hearing be open to the
public. See WIS. STAT. § 54.44(5). Thus, an argument could be made that the confidentiality of
an “open” hearing transcript has been waived. We need not—and do not—address that issue.
See State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997) (Appellate courts need not
address non-dispositive issues and “should decide cases on the narrowest possible grounds.”).
11
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seek, and deserve fair elections where valid votes are not canceled or diluted by an
ineligible vote. “It has been repeatedly recognized that all qualified voters have a
constitutionally protected right to vote, and to have their votes
counted.” Reynolds v. Sims, 377 U.S. 533, 554 (1964) (citations omitted); see
also Vieth v. Jubelirer, 541 U.S. 267, 272 (2004) (recognizing the “one-person,
one-vote” requirement under Article I, Section 2, of the United States
Constitution).
¶18 Based upon these premises, WVA alleges that the numbers just do
not add up: the number of “ineligible voters” listed in WEC’s publicly accessible
website were inconsistent with the number of wards declared to be ineligible to
vote county by county or were so low as to lend great doubt to their accuracy.15
According to WVA, there is a clear disconnect—and whether the circuit courts are
violating the legislature’s mandate to notify the local officials or agencies (as
directed to do so by the Court System through WEC) of each ineligible voter or
15
For instance, WVA points to records it alleges show that a resident of Outagamie
County who, despite being declared incompetent and ineligible to vote in February 2020, voted in
the November 2020 and April 2021 elections, and as recently as March 2022, was still listed as
active to vote on WisVote. She (or someone on her behalf) requested an absentee ballot in March
2022. WVA also alleges that, as of November 2020, WisVote lists only 802 individuals who are
incompetent and ineligible to vote in Wisconsin. That number did not include the Outagamie
County individual. Wisconsin had a population of 5,893,718 as of 2020. Wisconsin: 2020
Census, UNITED STATES CENSUS BUREAU, https://www.census.gov/library/stories/state-by-
state/wisconsin-population-change-between-census-decade.html (last visited Nov. 10, 2023).
Seven counties had only one individual listed as incompetent/ineligible to vote, and twelve
counties had no such individuals listed. Milwaukee County (population 594,548 as of 2019) had
sixty-four people listed as incompetent/ineligible in 2020, while there was only one person so
identified in the entire City of Milwaukee. WVA also claims that “[i]n Walworth County, 17 of
157 persons identified as incompetent were found in the WisVote database.” While this does not
indicate how many of the 157 were also ineligible to vote, the percentages appear inconsistent.
12
No. 2023AP36
whether WEC is violating the statutes16 by somehow not accurately or timely
acknowledging those notifications and thereby failing to list all ineligible voters
on its website is not currently known.
¶19 Every citizen of this state has the right to discern where this error
(intentional or not) lies because left unaddressed, it risks each citizen’s right to
have his or her vote counted in the course of a fair election. “[T]he failure to
follow election laws is a fact which forces everyone … to question the legitimacy
of election results.” Teigen, 403 Wis. 2d 607, ¶25.17
16
See Teigen v. WEC, 2022 WI 64, ¶24, 403 Wis. 2d 607, 976 N.W.2d 519 (“The
Wisconsin voters, and all lawful voters, are injured when the institution charged with
administering Wisconsin elections does not follow the law, leaving the results in question.”).
17
In Teigen, id., ¶25, our supreme court further explains:
When the level of pollution is high enough, the fog creates
obscurity, and the institution of voting loses its credibility as a
method of ensuring the people’s continued consent to be
governed. See State ex rel. Bell v. Conness, 106 Wis. 425, 428,
82 N.W. 288 (1900) (“He failed to show that he received a
majority of the votes cast at the election, but he succeeded in
showing a condition of affairs that taints the whole proceeding
and calls for careful consideration. The purity and integrity of
elections is a matter of such prime importance, and affects so
many important interests, that the courts ought never to hesitate,
when the opportunity is offered, to test them by the strictest legal
standards.”). A man with an obscured vote may as well be “a
man without a vote,” and without the opportunity for judicial
review, such a man “is without protection; he is virtually
helpless.” See 106 Cong. Rec. 5082, 5117 (1960) (statement of
Sen. Lyndon B. Johnson).
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I. WVA met all the factors for a writ of mandamus.
¶20 In keeping with its stated policy of transparency and openness in the
workings of our government, the Wisconsin legislature enacted a Public Records
Law. The law, contained in WIS. STAT. § 19.31, states:
[I]t is ... the public policy of this state that all persons are
entitled to the greatest possible information regarding the
affairs of government and the official acts of those officers
and employees who represent them. Further, providing
persons with such information is declared to be an essential
function of a representative government and an integral part
of the routine duties of officers and employees whose
responsibility it is to provide such information. To that
end, [WIS. STAT. §§] 19.32 to 19.37 shall be construed in
every instance with a presumption of complete public
access, consistent with the conduct of governmental
business. The denial of public access generally is contrary
to the public interest, and only in an exceptional case may
access be denied.
“Our supreme court has recognized this statement of the public interest to be ‘one
of the strongest declarations of policy to be found in the Wisconsin Statutes.’”
Wisconsin State J. v. Blazel, 2023 WI App 18, ¶51, 407 Wis. 2d 472, 991 N.W.2d
450 (quoting Milwaukee J. Sentinel v. DOA, 2009 WI 79, ¶52, 319 Wis. 2d 439,
768 N.W.2d 700).
¶21 “The [P]ublic [R]ecords [L]aw ‘serves one of the basic tenets of our
democratic system by providing an opportunity for public oversight of the
workings of government.’” Madison Tchrs., Inc. v. Scott, 2018 WI 11, ¶17, 379
Wis. 2d 439, 906 N.W.2d 436 (quoting Nichols v. Bennett, 199 Wis. 2d 268, 273,
544 N.W.2d 428 (1996)); see also Newspapers, Inc. v. Breier, 89 Wis. 2d 417,
433-34, 279 N.W.2d 179 (1979) (“The public records statute reflects a basic tenet
of the democratic system—that the electorate must be informed of the workings of
government.”).
14
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This state recognizes a presumption of accessibility to
public records, reflected in both the statutes and in our case
law:
[Sections] 19.32 to 19.37 shall be construed in
every instance with a presumption of complete
public access, consistent with the conduct of
governmental business. The denial of public access
generally is contrary to the public interest, and only
in an exceptional case may access be denied.
Nichols, 199 Wis. 2d at 273 (alteration in original) (quoting WIS. STAT. § 19.31).
“Mandamus is the proper means to challenge a governmental [entity’s] failure to
comply with the requirements of Wisconsin’s [Public] [R]ecords [L]aw.”18 Greer,
287 Wis. 2d 795, ¶7. Notwithstanding this presumption of openness, there is no
absolute right of access to public records. “Access to records may be denied
where there is a specific statutory exemption to disclosure, WIS. STAT. § 19.36, or
where there is a common law or public policy exception.” Watton v. Hegerty,
2008 WI 74, ¶10, 311 Wis. 2d 52, 751 N.W.2d 369.
¶22 “Mandamus is an extraordinary legal remedy, available only to
parties that can show that the writ is based on a ‘clear, specific legal right which is
free from substantial doubt.’” Lake Bluff Hous. Partners, 197 Wis. 2d at 170(quoting State ex rel. Collins v. American Fam. Mut. Ins. Co., 153 Wis. 2d 477,
483, 451 N.W.2d 429 (1990)). It “may be employed to compel public officers to
perform a duty that they are legally obligated to perform.” Watton, 311 Wis. 2d
52, ¶7.
The terms “open records law” and “public records law” are commonly used
18
interchangeably. However, the appropriate term is “Public Records Law.” See WIS. STAT.
§§ 19.31 to 19.39.
15
No. 2023AP36
¶23 According to Watton:
In order to obtain a writ of mandamus compelling
disclosure of records, the petitioner must establish that four
prerequisites are satisfied: (1) the petitioner has a clear
legal right to the records sought; (2) the government entity
has a plain legal duty to disclose the records; (3) substantial
damages would result if the petition for mandamus was
denied; and (4) the petitioner has no other adequate remedy
at law.
Id., ¶8; Pasko v. City of Milwaukee, 2002 WI 33, ¶24, 252 Wis. 2d 1, 643 N.W.2d
72.
¶24 Our supreme court has instructed courts to undertake a two-step
procedure to determine whether a document/record should be disclosed.
Linzmeyer v. Forcey, 2002 WI 84, ¶¶10-11, 254 Wis. 2d 306, 646 N.W.2d 811.
First, we must “determine whether the open records law applies to the record in
question.” Id., ¶10. To do that, we must “look at the statutory language of that
law, along with its statutory and common law exceptions.” Id.
¶25 “Documents on file with a court or custodian may be considered
public records.” State ex rel. Mitsubishi Heavy Indus. Am., Inc. v. Circuit Ct. for
Milwaukee Cnty., 2000 WI 16, ¶19, 233 Wis. 2d 1, 605 N.W.2d 868. Even
though the Reynolds court recently determined that the Notices of Voter
Eligibility are “pertinent to the finding of incompetency,” they may still be subject
to the Public Records Law. See Reynolds, ___ Wis. 2d ___, ¶28. Significantly,
no parties dispute that the Notices themselves constitute a “record,” as that term is
defined in Wisconsin’s Public Records Law. See WIS. STAT. § 19.32(2). And we
have not been presented with anything to conclude otherwise.
¶26 Thus, the Public Records Law applies to the Notices of Voting
Eligibility (or any equivalent communication) sent to WEC, satisfying the first
16
No. 2023AP36
step of the public records analysis. The “second issue is whether the presumption
of openness under the … law is overcome by any other public policy.”
Linzmeyer, 254 Wis. 2d 306, ¶11. “The fundamental question we must ask is
whether there is harm to a public interest that outweighs the public interest in
inspection of the [record.]” Id., ¶24. “Wisconsin law does recognize three types
of exceptions to this general policy of open access: (1) statutory exceptions;
(2) common law exceptions; and (3) public policy exceptions.” Democratic Party
of Wis. v. DOJ, 2016 WI 100, ¶10, 372 Wis. 2d 460, 888 N.W.2d 584.
¶27 “Public policy and public interest favor the public’s right to inspect
public records.” Hathaway v. Joint Sch. Dist. No. 1, 116 Wis. 2d 388, 392, 342
N.W.2d 682 (1984). As the legislature states in WIS. STAT. § 19.31:
[I]t is declared to be the public policy of this state that all
persons are entitled to the greatest possible information
regarding the affairs of government .... To that end, [WIS.
STAT. §§] 19.32 to 19.37 shall be construed in every
instance with a presumption of complete public access,
consistent with the conduct of governmental business. The
denial of public access generally is contrary to the public
interest, and only in an exceptional case may access be
denied.
See Linzmeyer, 254 Wis. 2d 306, ¶14 (“The legislature has clearly articulated the
policy regarding the release of government records” in the statute.).
¶28 Here, there is the general public policy of protecting the dignity and
privacy of individuals who are determined to be incompetent. That policy,
however, is expressly outweighed by the legislature’s mandate that voting
ineligibility determinations are to be publicly communicated to the local officials
or agencies through WEC (as directed by the Court System) and the public in
general. No statutory exception is listed under the Public Records Law for these
notices.
17
No. 2023AP36
¶29 There is an interesting twist to this public record law inquiry: The
Notices of Voting Eligibility forms are already released, by express statutory
mandate, to the local officials or agencies through WEC (as directed by the Court
System)—with no restrictions or additional requirements of continued
confidentiality. Not only that, but WEC then publishes the statutorily mandated
information obtained from those Notices to the world by including that data on
WisVote. Given the public status of the Notices, it is unreasonable for Secord to
assert that the Notices are “closed” public records that may never be released to
the public. Their very nature and purpose is to release the form and all
information contained therein precisely because the legislature (as is its
prerogative) has made a public policy balancing and determination that the
constitutional rights of voters in the state outweigh the privacy concerns of
individuals declared not eligible to vote. Moreover, while no case sets forth the
obvious standard that a publicly available or already released document can no
longer cloak itself in the confidentiality provisions of the Public Records Law, this
court, in Stone v. Board of Regents of the Univ. of Wis. Sys., 2007 WI App 223,
¶20, 305 Wis. 2d 679, 741 N.W.2d 774, a case where a requester sought identical
copies of documents, agreed “that it would be absurd to construe the term ‘record’
in WIS. STAT. § 19.32(2) as including an identical copy of an otherwise available
record.” (emphasis added). That concept would equally apply where a record was
already made available to the public.
18
No. 2023AP36
¶30 Secord focuses her entire argument, with respect to whether the
Notices of Voting Eligibility may be released, on the second sentence19 in WIS.
STAT. § 54.75: “The fact that an individual has been found incompetent and the
name of and contact information for the guardian is accessible to any person who
demonstrates to the custodian of the records a need for that information.” But, she
fails to read, reference, or give appropriate attention to the first sentence: “All
court records pertinent to the finding of incompetency are closed but subject to
access as provided in [WIS. STAT. §§] 51.30 or 55.22 or under an order of a court
under this chapter.” Sec. 54.75 (emphasis added).
¶31 Next, each prerequisite for the petition for writ of mandamus must
be addressed. First, there is a clear legal right. Access to public records is a vital
and integral factor of Wisconsin’s avowed presumption towards open government.
The legislature has expressly mandated its preferences for such open access with a
statutory directive for the circuit court’s positive and plain duty to communicate
voter eligibility determinations (regardless of whether a guardian is appointed) to
local officials or agencies (accomplished based on direction of the Court System
through WEC). The first two prerequisites have been satisfied.
¶32 WVA has detailed discrepancies between issued voter ineligibility
determinations (as communicated by Notice to WEC) and what WEC promulgates
on its WisVote database. Substantial damages lie not only with WVA and Heuer
with respect to their efforts to improve WisVote’s database to ensure that circuit
19
The Reynolds court concluded that the second sentence was “inapplicable here,
however, because [WVA]’s position is that it is entitled only to the [Notice of Voting Eligibility]
forms, not to the information referenced in this sentence.” ___ Wis. 2d ___, ¶33. Thus, the court
concluded it “need not discuss whether [WVA] has demonstrated a ‘need’ for information that is
not the subject of [WVA]’s request or mandamus action.” Id.
19
No. 2023AP36
court orders restricting incompetent individuals from voting are honored, but
damages also exist for all qualified voters in Wisconsin whose constitutional right
to vote in fair elections where only valid votes are counted is at risk. Voter
integrity and public confidence in our system of elections is placed in jeopardy.
The damage to legitimate voters and the possible dilution of their votes legally
cast is yet another damage. Moreover, there is also the potential harm to
vulnerable individuals subject to competency proceedings who may be coerced to
vote illegally or may have their votes stolen. Taken altogether, WVA has clearly
and convincingly established that substantial damage would result if its petition
were denied.
¶33 Finally, respondents have failed to adequately counter WVA’s
contention that there is no other adequate remedy at law. Neither the circuit court
nor the Register in Probate is required to audit whether the local officials or
agencies and WEC comply with the legislative mandate to identify the voters who
are court-ordered as ineligible to vote. Neither was WVA obligated first to pursue
a declaratory judgment action. That satisfies the final prerequisite.
¶34 Having met all prerequisites for its petition for a writ of mandamus,
the circuit court erroneously dismissed WVA’s petition.
20
No. 2023AP36
II. In the alternative, WVA has demonstrated a public need20 for
the Notices, which bolsters the release of the other information
by “order of the court.”21
¶35 As an alternative, WVA argues public need. It has indeed
demonstrated public need, which bolsters support for the release of these Notice
forms under the Public Records Law as allowed by an “order of the court,” the
circuit court incorrectly stated that WVA does not claim access to the voter
ineligibility information under WIS. STAT. §§ 51.30 or 55.22 implying that WVA
has not demonstrated a “need” for that information pursuant to WIS. STAT.
§ 54.75. Secord asserts that WVA does not need this information, claiming that
WVA “at best, demonstrated a desire to obtain the statutorily protected and
confidential information to achieve its own political goals,” is “engag[ed] in a
wild-goose chase seeking to dispute the legitimacy of elections,” and that “a
political witch hunt is not a sufficient ‘need.’”22
20
The dissent emphasizes that the legislature has several election reform bills pending
that could make this opinion or its analysis inapt. Dissent, n.11. That is patently irrelevant. The
legislature could always have bills pending that could alter the analysis of any opinion, but that is
not a basis for this court to wait and see what comes of the sausage-making process that is
legislative operations. See In re Ashley, 317 B.R. 352, 360 n.10 (Bankr. C.D. Ill. 2004)
(mentioning “the aphorism that ‘no one should watch how laws or sausages are made.’”). Simply
put, pending legislation is precisely that: pending. It is not binding and it has no effect on the
courts nor the citizens of the State. Even if a new law finally wended its way through the
legislature, in must be endorsed by the executive branch (the Governor) to become law. If the
court were to take the policy of waiting for legislative and executive action, it would be
abdicating its duties as a co-equal branch of the government. “The judicial power to interpret the
law, [the United States Supreme] Court has held, ‘can no more be shared with another branch
than the Chief Executive, for example, can share with the Judiciary the veto power, or the
Congress share with the Judiciary the power to override a Presidential veto.’” Kisor v. Wilkie,
588 U.S. ___, 139 S. Ct. 2400, 2438 (2019) (J. Gorsuch, concurring) (quoting Stern v. Marshall,
564 U.S. 462, 483 (2011)).
21
We need not address WVA’s additional arguments, which are related to, among other
things, declaratory judgment. See Castillo, 213 Wis. 2d at 492.
22
Frankly, we abhor the personal disparagements and hyperbolic rhetoric currently used
in briefs. It is “at best” counterproductive, not to mention uncivil.
21
No. 2023AP36
¶36 This court is not required to determine what underlying motives rest
beneath a legitimate “need” for information. Here, WVA asserts it has an interest
in seeing that the voter rolls in Wisconsin are accurate so that our elections
comport with constitutional guarantees. If maintaining accurate voter lists—as
statutorily required by the legislature—is not a sufficient need, we are hard-
pressed to articulate another. In the current environment of unfortunate
accusations flying from both sides, the judiciary must stand firm and—setting
aside personalities, slings, and arrows—merely perform its obligations as one of
the three co-equal branches of government. Deciding cases in conformity with the
Constitution is “of the very essence of judicial duty.” Marbury v. Madison, 5
U.S. 137, 178 (1803) (a case in which, coincidentally, a writ of mandamus was at
issue); see also Gabler v. Crime Victims Rts. Bd., 2017 WI 67, ¶2, 376 Wis. 2d
147, 897 N.W.2d 384 (explaining the separation of powers doctrine and noting
“[e]ncroachment on judicial power degrades the judicial independence that serves
as a bulwark protecting the people against tyranny”).
¶37 WVA establishes two other bases for seeking this information. First,
there is an alternative non guardianship procedure to obtain a designation of voter
ineligibility. Pursuant to WIS. STAT. § 54.25(2)(c)1.g., “any elector of a
municipality may petition the circuit court for a determination that an individual
residing in the municipality is incapable of understanding the objective of the
elective process and thereby ineligible to register to vote or to vote in an election.”
That determination, if made by a court, is likewise to be communicated to local
officials or agencies, id. (through WEC as directed by the Court System). That
establishes that Notices of Voting Eligibility may arise in non-guardianship
situations and without a guardianship case.
22
No. 2023AP36
¶38 Next, any elector may initiate a challenge to a voter’s registration.
See WIS. STAT. § 6.48(1). This results in a public hearing. Accordingly,
electors—including Heuer—have a basis to seek information relating to
individuals who are found to be incompetent in order to exercise their statutory
right to challenge voter registrations.
¶39 By law and direction of the Court System, WEC is to assist in
changing a voter’s status if a court declares that individual to be ineligible to vote
(in this case, due to a finding of incompetency) after it receives the communication
(the Notice) from a court pursuant to WIS. STAT. § 54.25(2)(c)1.g. The court in
Zignego outlined the procedure to be utilized with respect to revisions to
Wisconsin’s state voter registration lists:
Subsections (1), (2), and (2g) outline a procedure
whereby those who have not voted in the previous four
years are changed to an ineligible status on the statewide
registration list. WIS. STAT. § 6.50(1), (2), (2g). After a
general election, the “commission” is required to examine
the registration records and identify non-voting electors.
§ 6.50(1). The Commission then must mail a notice that
tells the elector that their registration will be suspended
unless the elector applies for continuation within 30
days. Id. If continuation of registration is not applied for
within 30 days, “the commission shall change the
registration status of that elector from eligible to
ineligible.” § 6.50(2). However, the “commission” may
delegate changing of registration statuses “to a municipal
clerk or board of election commissioners of a
municipality.” § 6.50(2g). Ultimately, the statutory
responsibility to change the registration status for non-
voting electors is squarely placed on the Commission.
Zignego, 396 Wis. 2d 391, ¶23.
¶40 We conclude that WVA has met all prerequisites for a petition for
writ of mandamus such that the circuit court’s order must be reversed pursuant to a
balancing of interests as required by the Public Records Law as allowed by the
23
No. 2023AP36
first sentence in WIS. STAT. § 54.75. We also conclude that WVA has
demonstrated a need for information that further supports the release of the
Notices of Eligibility under § 54.75 such that it is entitled to that information and
to a reversal of the circuit court’s decision.
CONCLUSION
¶41 The circuit court erroneously dismissed WVA’s petition for a writ of
mandamus. We hold that because WVA has demonstrated that disclosure of these
records (which have already been made publicly available pursuant to statute) is
appropriate under the Public Records Law, WVA is entitled to the requested forms
(in an appropriately redacted23 form). Accordingly, we reverse the circuit court’s
order and remand this matter for further proceedings consistent with this opinion.
By the Court.—Order reversed and cause remanded for further
proceedings.
Recommended for publication in the official reports.
23
Neither WVA nor any member of the public should be given the guardianship case
number or the birthdate of an individual in need. The released information should comport with
what the WEC previously publicly posted on its webpage. We leave to the circuit court what
other information, if any, should be redacted to protect the privacy of an individual.
24
No. 2023AP36(C)
¶42 LAZAR, J. (concurring). Because we disagree with the analysis in
Wisconsin Voter Alliance v. Reynolds, 2023 WI App 66, ¶¶20-34, ___ Wis. 2d
___, ___ N.W.2d ___, with respect to the definition of the phrase “pertinent to the
finding of incompetency,” we submit this concurrence. We conclude that the
voter ineligibility determination is not pertinent to the finding of incompetency; it
is a consequence of such a finding. Moreover, it is a determination that the
legislature has independently designated as nonconfidential and subject to public
disclosure via communication to local officials or agencies (as directed to do so by
the Wisconsin Court System (Court System) through the Wisconsin Election
Commission (WEC)), to WEC’s public website, and to the appropriate voting
precincts in the state to allow electors to challenge voter eligibility. In other
words, this information is publicly available.
III. The Notice of Voting Eligibility is not “pertinent to the finding of
incompetency.”
¶43 The circuit court glosses over the key issue in this appeal: Is the
Notice of Voting Eligibility (or any equivalent communication to the local
officials or agencies through WEC, as directed by the Court System) “pertinent to
the finding of incompetency” of the ward identified in that communication?
Instead, it holds—with no explanation or articulation of what “pertinent to the
finding of incompetency” means—that the Notice Form is “generated as a part of
the Order at a Guardianship hearing and is a court record pertinent to the finding
of incompetency.” It further states that the Form “is a written memorialization of
the court decision as to voter competency.” These holdings require examination.
No. 2023AP36(C)
A. The statutory interpretation of “pertinent” in context
¶44 “[S]tatutory language is interpreted in the context in which it is used;
not in isolation but as part of a whole; in relation to the language of surrounding or
closely-related statutes; and reasonably, to avoid absurd or unreasonable results.”
State ex rel Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d
633, 681 N.W.2d 110 (citation omitted). The court will read statutory language to
give reasonable effect to every word to avoid surplusage. Id. Here, it is not just a
question of what “pertinent” means, but rather how the entire phrase should be
defined.
¶45 Before Reynolds, no Wisconsin cases explicitly defined what
“pertinent” means. A travel down the centuries, however, sheds significant light
not only on a definition of “pertinent” but how the phrase “pertinent to the finding
of incompetency” should be applied in context. A 1906 defamation case regarding
comments made to a grand jury, Schultz v. Strauss, 127 Wis. 325, 329, 106 N.W.
1066 (1906), involved the question of whether words were “spoken in the course
of judicial proceedings and were they pertinent and related to the subject of
inquiry?” Our supreme court held that “the alleged defamatory matter was
applicable and pertinent to the subject under consideration by the grand jury, and
that it was communicated to them in the course of a judicial proceeding.” Id. The
Schultz case is instructive. The comments were pertinent to the grand jury’s
deliberation as to whether to issue a charge just as the WIS. STAT. ch. 54 petition,
reports, and evidence are pertinent to the finding of incompetency, and for that
reason, they, like the grand jury statements, are privileged or confidential. The
determination of the grand jury—just as the voting eligibility determination in this
appeal—is, however, not pertinent to the grand jury proceeding and is not
confidential. Both the grand jury charge and the voter eligibility communications
2
No. 2023AP36(C)
are expressly designed to be made public. Neither are “pertinent to the finding” of
the respective deliberative body.
¶46 Next, in Bussewitz v. Wisconsin Teachers’ Ass’n, 188 Wis. 121,
128, 205 N.W. 808 (1925), again tethering “pertinent” to what takes place in court
on the record, the court looked back even further to a decision from 1841 to find
that comments made in court were not subject to defamation charges, and quoted
from that decision:
“The question, therefore, in such cases is not whether
the words spoken are true, not whether they are actionable
in themselves, but whether they were spoken in the course
of judicial proceedings, and whether they were relevant and
pertinent to the cause or subject of inquiry. And in
determining what is pertinent, much latitude must be
allowed to the judgment and discretion of those who are
intrusted with the conduct of a cause in court.”
(quoting Hoar v. Wood, 44 Mass. 193 (1841)).
¶47 The Bussewitz court’s favorable citation to the quote from Hoar
evidences a decision to limit “pertinent” to those comments, spoken in the judicial
proceeding, that relate to the “cause or subject of inquiry.” There was no effort to
expand “pertinent” to what occurs after a judicial proceeding has concluded with a
final order by the court.
¶48 A relatively recent Wisconsin case further addresses pertinent
statements while discussing privileges and/or immunity for statements or actions
made in the course of a judicial proceeding. In Snow v. Koeppl, 159 Wis. 2d 77,
81, 464 N.W.2d 215 (Ct. App. 1990), when the court held that a court-ordered
psychological evaluation for a family matter was privileged and its author was
insulated from liability for breach of confidentiality and invasions of privacy, it
declared that “[t]he determination whether the statements are pertinent and
3
No. 2023AP36(C)
relevant to the issues is a question of law for the court [to review] and not a fact
issue for the jury.” Here again, the Snow court (albeit combining pertinent and
relevant) links the word “to the issues,” not to the consequences of a court order.
Id.¶49 This is further substantiated by the fact that the legislature has
declared that an “‘[i]ndividual found incompetent’ means an individual who has
been adjudicated by a court as meeting the requirements of [WIS. STAT.
§] 54.10(3).” WIS. STAT. § 54.01(16).1 The inclusion of an adjudication or a
finding adds context to the word “pertinent.” It emphasizes that, per Kalal, the
word cannot be considered in isolation. See Kalal, 271 Wis. 2d 633, ¶46.
Additional cases add further illumination to the inquiry.
¶50 There are cases where “pertinent” is considered synonymous with
“relevant” in the context of whether a character trait may be admitted into
evidence under WIS. STAT. § 904.04(1)(a). In Milenkovic v. State, 86 Wis. 2d
272, 281, 272 N.W.2d 320 (Ct. App. 1978), the court differentiated between
pertinent and relevant, but did not define pertinent other than to note that prior
1
WISCONSIN STAT. § 54.10(3)(a) provides, in relevant part:
A court may appoint a guardian of the person or a guardian of
the estate, or both, for an individual based on a finding that the
individual is incompetent only if the court finds by clear and
convincing evidence that all of the following are true:
….
2. For purposes of appointment of a guardian of the person,
because of an impairment, the individual is unable effectively to
receive and evaluate information or to make or communicate
decisions to such an extent that the individual is unable to meet
the essential requirements for his or her physical health and
safety.
4
No. 2023AP36(C)
sexual activity of a rape victim “is not a pertinent trait of character, nor is it
relevant to consent in a rape case.” And, later, in State v. Davis, 2002 WI 75, ¶16,
254 Wis. 2d 1, 645 N.W.2d 913, our supreme court explained that “‘[p]ertinent’
refers to the relevance of the traits.” (Citing 7 Daniel Blinka, Wisconsin Practice:
Wisconsin Evidence § 404.4, at 133 (2d ed. 2001)).
¶51 Neither of these cases provide much insight, nor do they show a
tendency to expand the definition of pertinent beyond a reference to a
determination regarding character traits. Taken altogether, these cases support a
conclusion that “pertinent to a finding,” “pertinent to a judicial proceeding” or
“pertinent to a specific character trait” is limited by the remainder of the phrase in
which pertinent is embedded.
¶52 A perusal of dictionary definitions is, likewise, not dispositive, but is
somewhat instructive. Merriam-Webster defines “pertinent” as “having a clear
decisive relevance to the matter in hand.” Pertinent, MERRIAM-WEBSTER
DICTIONARY, https://www.merriam-webster.com/dictionary/pertinent (last visited
Oct. 31, 2023) (emphasis added). Black’s Law Dictionary defines it as “pertaining
to the issue at hand; relevant.” Pertinent, BLACK’S LAW DICTIONARY (8th ed.
2004) (emphasis added). Again, this supports a conclusion that pertinent to the
finding of incompetency contemplates information, data, and testimony that is
referenced in the judicial proceedings and leads up to the court-ordered
adjudication.
¶53 The actual order form finding incompetency (State Form No. GN-
3170) is also on point. It specifically states, at the start, that a petition was filed, a
hearing was held, and that the circuit court, “[a]fter consideration of the reports
and other documents on file, all factors required by the statutes, and such
5
No. 2023AP36(C)
additional information presented” finds and grants or denies the petition. The
order concludes with the mandatory language that it “IS A FINAL ORDER FOR
PURPOSE OF APPEAL IF SIGNED BY A CIRCUIT COURT JUDGE.” See
WIS. STAT. § 808.03(1); Wambolt v. West Bend Mut. Ins. Co., 2007 WI 35, ¶4,
299 Wis. 2d 723, 728 N.W.2d 670.
¶54 When appointing a guardian, the circuit court may order specific
rights that are to be removed in full from the subject individual. The court can
check a box to order that “[t]he individual has the incapacity to exercise the right
to ... (3) register to vote or to vote in an election because the individual is unable to
understand the objective of the elective process.” This is in a list of rights that
“[i]f removed, ... may not be exercised by any person.”2 Therefore, no one—
not even the guardian of the individual ward—may exercise the right to vote if that
right has been “removed” due to a finding of incompetency.
¶55 After a final order “finding of incompetency” is made, the court then
completes a Notice of Voting Eligibility and communicates that publicly to the
local officials or agencies (as directed to do so by the Court System to WEC).
That Notice has references to [WIS. STAT. §] ch. 54, thereby publicly putting
WEC, the viewers of WisVote, and all voting precincts on notice that an
individual has been declared incompetent. Even though the Notice is also
contained in the electronic court file, that is not dispositive because public
documents can also be filed in confidential court files without losing their public
2
Seven other rights may “be removed in full or exercised by individual only with
consent of guardian of person.”
6
No. 2023AP36(C)
designation. The Notice is only completed and disseminated after a finding of
incompetency.
¶56 Albeit in reference to the predecessor statute, the Wisconsin
Attorney General has opined (interpreting WIS. STAT. § 880.33(6)) that “only the
file containing the documents themselves are ‘records pertinent to the finding of
incompetency.’ Only the documents themselves provide information which the
court uses to find an individual is ‘substantially incapable of managing his
property or caring for himself.’” 67 Wis. Op. Atty. Gen. 130, 131 (1978). 3 Once
again, an authority4 defines documents and information that lead up to and are
utilized in deliberations as things that are pertinent to a specific finding.
¶57 Thus, all of the legal authorities, all of the cases, and all of the
dictionary definitions lead to the conclusion that there is a clear distinction
between what is pertinent and what is pertinent to a specific finding. While
“pertinent” could be considered similar to relevant, and could—arguably—mean
that anything related to a judicial proceeding, whether it be before or after a court
finding or determination, is “pertinent.” That expansive use of the word is
circumscribed with the addition of the rest of the limiting phrase: “to the finding
3
The Attorney General Opinion continued, and noted that “[t]he index and docket are
not pertinent to the court’s consideration.” 67 Wis. Op. Atty. Gen. 130, 131. Attorney General
Opinions are “only persuasive authority. An opinion has considerable weight if the legislature
later amends and revises a statute but makes no changes in response to the opinion.” State ex rel.
North v. Goetz, 116 Wis. 2d 239, 244-45, 342 N.W.2d 747 (Ct. App. 1983). The statute
referenced in the Attorney General Opinion (WIS. STAT. § 880.33(6)) was amended in 2005 (to
WIS. STAT. § 54.75) but was not revised to alter the opinion set forth in 1978. See 2005 WIS. ACT
387, § 471 (renumbering § 880.33(6) to WIS. STAT. § 54.75).
4
The Reynolds court also references this Attorney General Opinion but asserts that
because the Notice is a part of the court file, WVA’s arguments are undercut. ___Wis. 2d ___,
¶30 n.8. We disagree as already detailed herein.
7
No. 2023AP36(C)
of incompetency.” The inclusion of those words must mean something; they
cannot be surplusage.
B. The Notice of Voting Eligibility is a consequence, not a
finding.
¶58 The circuit court, understandably and reasonably concerned over the
privacy and dignity of individuals involved in guardianship proceedings and the
possible release of sensitive information, failed to consider and differentiate the
steps of the process “of finding incompetency” and it failed to align those steps
with the clear legislative mandate with respect to elections and elector
qualifications. Each step of the process must be carefully broken down and
analyzed.
¶59 First, we look at what the legislature identifies as being confidential
and what it requires to be made publicly available. As explained above, it is the
procedure resulting in a “finding of incompetency” that is initially cloaked from
public access. The legislature itemizes what documents, proof and procedural
steps are inherently pertinent to that finding of incompetency: (1) the petition that
initiates the guardianship proceeding, WIS. STAT. § 54.34(1); (2) the report of a
guardian ad litem, if one was appointed, WIS. STAT. § 54.10(2); (3) the written
statement by a licensed physician or licensed psychologist, or both, with the
experts’ “professional opinion regarding the presence and likely duration of any
medical or other condition causing the proposed ward to have incapacity,” WIS.
STAT. § 54.36(1); (4) the jury or court hearing (as memorialized in a transcript or
court minutes) at which the ward may challenge a finding of incompetency, WIS.
STAT. § 54.44; and (5) the final order detailing the finding of incompetency and
the legal consequences of such a determination, WIS. STAT. § 54.46.
8
No. 2023AP36(C)
¶60 The finding by the circuit court that is memorialized in that final
order (Form GN-3170) is filed in the guardianship record. The order is detailed
and contains numerous statements about the incompetency of the ward as well as
various rights that the ward may—or may no longer—be eligible to exercise. See
WIS. STAT. § 54.25(2)(c). That document is confidential—and rightly so due to its
length and thorough detailed description5 of the ward’s condition. The execution
of that order is the pure essence of the circuit court’s finding of incompetency.
¶61 At that point in time, the ward has been found to be incompetent.
All of the records and forms leading up to that finding are “pertinent” to the
finding of incompetency. The next steps taken by the circuit court are
consequences of such a finding. The first of these steps is the legislature’s
mandate that only in those cases where the right to vote has been removed, the
circuit court must publicly acknowledge and communicate that voter ineligibility
to the local officials or agencies (as directed to do so by the Court System through
WEC) to preserve the sanctity of Wisconsinites’ right to vote. WIS. STAT.
§ 54.25(2)(c)1.g.
¶62 In fact, these Notices can be utilized in non guardianship instances
where an individual is determined to be ineligible to vote.6 The fact that the form
5
The order allows a court to communicate the basis on which the individual was found
to be incompetent: “a developmental disability,” “degenerative brain disorder,” “serious and
persistent mental illness” or “other like incapacities.” Certainly, that sensitive information is not
only pertinent to the finding of incompetency, but it is information the legislature has rightly
declared to be confidential.
6
Pursuant to WIS. STAT. § 54.25(2)(c)1.g., “any elector of a municipality may petition
the circuit court for a determination that an individual residing in the municipality is incapable of
understanding the objective of the elective process and thereby ineligible to register to vote or to
vote in an election.” That determination, if made by a court, is likewise to be communicated to
the local officials or agencies (as directed to do so by the Court System through WEC). Id.
9
No. 2023AP36(C)
can be used by a circuit court even when there is no guardianship case further
bolsters the conclusion that the post-judicial-determination-of-voter-eligibility
form is not pertinent to the finding of incompetency where it would be included in
a confidential case file.
IV. The Reynolds interpretation of “pertinent to the finding of
incompetency” is incorrect.
¶63 The Reynolds court concluded that the Notice of Voter Eligibility
forms are “pertinent to the finding of incompetency” and are “therefore barred
from disclosure under WIS. STAT. § 54.75.” ___ Wis. 2d ___, ¶34. First, the
Reynolds court disagrees with WVA’s argument (in that appeal) that the Notices
are created after the proceedings and thus “could not have played a role in the
court’s finding” of incompetency. Id., ¶25. The Reynolds court explained that
WVA appeared to be trying to write words into the statute. Id., ¶26.
¶64 It is well recognized that courts may not add language to a statute.
This canon of construction was nicely summarized by our supreme court in State
v. Neill, 2020 WI 15, ¶23, 390 Wis. 2d 248, 938 N.W.2d 521, as follows:
“One of the maxims of statutory construction is
that courts should not add words to a statute to give it a
certain meaning.” Fond Du Lac C[n]ty. v. Town of
Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct.
App. 1989) (citation omitted); see also Dawson v. Town of
Jackson, 2011 WI 77, ¶42, 336 Wis. 2d 318, 801 N.W.2d
316 (“We decline to read into the statute words the
legislature did not see fit to write.” (citation omitted));
State v. Wiedmeyer, 2016 WI App 46, ¶13, 370 Wis. 2d
187, 881 N.W.2d 805 (“It is not up to the courts to rewrite
the plain words of statutes[.]”). “[R]ather, we interpret the
words the legislature actually enacted into law.” State v.
Fitzgerald, 2019 WI 69, ¶30, 387 Wis. 2d 384, 929 N.W.2d
165.
(Alterations in original).
10
No. 2023AP36(C)
¶65 While we agree that “[m]any court records that are pertinent to a
[circuit] court’s decision—such as court forms, written opinions, and transcripts of
proceedings in which decisions are made—are created after the court has made a
decision,” Reynolds, ___ Wis. 2d ___, ¶26, that—in and of itself—does not mean
that every record created after such decisions necessarily are pertinent to a court’s
findings. As explained above, there is a clear distinction between a finding and a
consequence.
¶66 Next, the Reynolds opinion, like the circuit court in this appeal,
considered the term “pertinent” and its dictionary definitions, but it did not delve
into the word in the context of the entire phrase in which it is used. Reynolds
looked to two dictionary definitions7 of “pertinent” and, again like the circuit court
in this appeal, linked “pertinent” to “relevant,” concluding:
Under any of these definitions, the requested [Notice of
Voter Eligibility] forms are clearly “pertinent to the finding
of incompetency.” The requested forms “hav[e] some
7
The Reynolds court elucidated as follows:
[WVA] also offers two dictionary definitions
of “pertinent”: first, “[h]aving some connection with
the matter at hand; relevant; to the point,”
https://www.collinsdictionary.com/us/dictionary/english/pertinen
t (last visited Nov. 6, 2023); and second, “[p]ertaining to the
issue at hand; relevant,” BLACK’S LAW DICTIONARY 1181 (8th
ed. 2004). See Spiegelberg v. State, 2006 WI 75, ¶19, 291
Wis. 2d 601, 717 N.W.2d 641 (in determining ordinary meaning
of words that are undefined by statute, “[w]e may consult a
dictionary to aid in statutory construction”). Although we do not
perceive any consequential difference in these definitions, we
note that a more recent edition of [WVA]’s second source
defines “pertinent” as “[o]f, relating to, or involving the
particular issue at hand; relevant.” Pertinent, BLACK’S LAW
DICTIONARY (11th ed. 2019).
Reynolds, ___ Wis. 2d ___, ¶27 (alterations in original).
11
No. 2023AP36(C)
connection with” and “relat[e] to,” the finding of
incompetency because they are created in the context of
proceedings in which incompetency is determined for
purposes of establishing guardianship. See WIS. STAT.
§ 54.25(2)(c)1.g. (“The court may, as part of a proceeding
under [WIS. STAT. §] 54.44 in which an individual is found
incompetent and a guardian is appointed, declare that the
individual has incapacity to exercise ... [t]he right register
to vote or to vote in an election.”).
Reynolds, ___ Wis. 2d ___, ¶28 (alterations in original).
¶67 This conclusion, based solely on the definition of pertinent, fails to
consider how “pertinent” applies to the remainder of the phrase: “to the finding of
incompetency.” As detailed above, this court has conducted that analysis and
based upon the holdings in Hoar, Schultz, Bussewitz, and Snow, the word
“pertinent” is circumscribed, and its potential expansive nature that is commonly
linked to “relevant” is limited, when taken together with the remainder of the
phrase in which it is used. The embedding of pertinent in the key phrase must—
and does—mean something more than just “pertinent.” See Kalal, 271 Wis. 2d
633, ¶46 (“[S]tatutory language is interpreted in the context in which it is used; not
in isolation but as part of a whole; in relation to the language of surrounding or
closely-related statutes; and reasonably, to avoid absurd or unreasonable results.”).
That something more is the legislature’s intent that a record that contains the
voting ineligibility consequence of a limited number of circuit findings of
incompetency is created after such a finding. Not only that, but it is a
consequence that statutorily must be publicly communicated to the local officials
or agencies (as directed to do so by the Court System through WEC).
¶68 The circuit court was well-meaning in its effort to protect
incompetent individuals, clearly “some of the most vulnerable citizens of
Walworth County,” and to avoid “opening the door for intrusion into other
confidential information to satisfy [WVA’s] objectives.” We agree that the
12
No. 2023AP36(C)
confidential, sensitive information of incompetent individuals must be protected
(absent a court-found need for disclosure or determination that the Public Records
Law otherwise requires disclosure), but conclude nevertheless that the Notice of
Voting Eligibility is not pertinent to the finding of incompetency. Accordingly, it
is subject to disclosure—in an appropriately redacted format.
¶69 I am authorized to state that Judge Shelley A. Grogan joins this
concurrence.
13
No. 2023AP36(D)
¶70 NEUBAUER, J. (dissenting). Today the majority upends
Wisconsin’s Public Records Law, WIS. STAT. §§ 19.31-.39 (2021-22),1 and takes
the unprecedented step of compelling the Walworth County Register in Probate to
disclose to the public records contained in guardianship case files that this court
recently concluded are confidential and exempt from disclosure. The majority’s
opinion disregards this court’s obligation to adhere to prior precedent, ignores an
applicable exception to disclosure in the Public Records Law, and tosses aside the
analytical framework governing access to records claims. For these reasons, I
respectfully dissent.
I. Reynolds Controls this Case.
¶71 Chief among the majority opinion’s flaws is its very existence. This
court recently addressed the same issues raised in this appeal in Wisconsin Voter
Alliance v. Reynolds, 2023 WI App 66, ___ Wis. 2d ___, ___ N.W.2d ___.2 In
Reynolds, we concluded that the very same records sought by the Wisconsin
Voter Alliance and its president, Ron Heuer (collectively, WVA), in this appeal—
Notice of Voter Eligibility (NVE) forms contained in guardianship case files—are
categorically exempt from disclosure under WIS. STAT. § 54.75 and a provision in
1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
The Wisconsin Voter Alliance and Ron Heuer did not file a petition seeking review of
our decision in Wisconsin Voter Alliance v. Reynolds, 2023 WI App 66, ___ Wis. 2d ___,
___N.W.2d ___, with the Wisconsin Supreme Court.
No. 2023AP36(D)
the Public Records Law, WIS. STAT. § 19.36(1). Reynolds, ___ Wis. 2d ___, ¶20.
The majority concedes it is bound by Reynolds unless that case can be
distinguished. Majority, ¶3. Although Reynolds is not distinguishable, the
majority refuses to follow it, preferring instead its own unsound legal analysis.
The majority’s decision violates this court’s obligation under Cook v. Cook, 208
Wis. 2d 166, 560 N.W.2d 246 (1997) to adhere to prior precedent. See id. at 189-
90 (“[O]nly the supreme court, the highest court in [Wisconsin], has the power to
overrule, modify or withdraw language from a published opinion of the court of
appeals.”).
A. Reynolds is procedurally indistinguishable from this case.
¶72 In every material respect, Reynolds is on all fours with the present
case. Both began as mandamus actions filed by WVA against county registers in
probate seeking the disclosure of NVE forms and other information contained in
guardianship case files under Wisconsin’s Public Records Law. See WIS. STAT.
§§ 19.31-.39.3 In both cases, the circuit courts dismissed WVA’s petitions after
concluding that a provision in the guardianship statutes, WIS. STAT. § 54.75,
3
Reynolds and this case are two of thirteen civil actions commenced by the Wisconsin
Voter Alliance seeking writs of mandamus against county officials to obtain NVE forms. The
other eleven are Wisconsin Voter Alliance v. Young, Brown County Circuit Court Case No. 22-
CV-882; Wisconsin Voter Alliance v. Redman, Crawford County Circuit Court Case No. 22-CV-
46; Wisconsin Voter Alliance v. Sheffler, Kenosha County Circuit Court Case No. 22-CV-771;
Wisconsin Voter Alliance v. Siegenthaler, Lafayette County Circuit Court Case No. 22-CV-59;
Wisconsin Voter Alliance v. Mayr, Langlade County Circuit Court Case No. 22-CV-86;
Wisconsin Voter Alliance v. Goodwin, Marquette County Circuit Court Case No. 22-CV-47;
Wisconsin Voter Alliance v. Mueller, Ozaukee County Circuit Court Case No. 22-CV-256;
Wisconsin Voter Alliance v. Anderson, Polk County Circuit Court Case No. 22-CV-199;
Wisconsin Voter Alliance v. Campbell, Taylor County Circuit Court Case No. 22-CV-53;
Wisconsin Voter Alliance v. Halverson, Vilas County Circuit Court Case No. 22-CV-66; and
Wisconsin Voter Alliance v. Peterson, Vernon County Circuit Court Case No. 22-CV-082.
According to the Circuit Court Access Program (CCAP) website, all thirteen actions were
commenced on July 26, 2022.
2
No. 2023AP36(D)
exempted the documents and information WVA sought from disclosure under the
Public Records Law. See Reynolds, ___ Wis. 2d ___, ¶13; Majority, ¶10. In both
cases, WVA appealed the dismissal orders and narrowed its dispute with the
county registers to whether the NVE forms are exempt from disclosure under the
Public Records Law. See Reynolds, ___ Wis. 2d ___, ¶7; Majority, ¶10.
¶73 The majority’s attempts to distinguish the “procedural posture of
Reynolds” are wholly unconvincing. Majority, ¶3 n.2. First, the majority notes
that in Reynolds, the register in probate raised two grounds for dismissal in the
circuit court: (1) WVA’s failure to comply with WIS. STAT. § 801.02(5), and
(2) the “alternative” ground of failure to state a claim on which relief could be
granted. Majority, ¶3 n.2. But Secord made the same two arguments in her
motion to dismiss in the present case, so there is no difference between the two
cases in that respect.
¶74 Next, the majority states that the circuit court in Reynolds dismissed
WVA’s petition before WVA filed its opposition to Reynolds’ motion to dismiss.
Majority, ¶3 n.2. Admittedly, that did not happen in the present case: WVA filed
a brief opposing Secord’s motion to dismiss before the circuit court granted
Secord’s motion. Why is that difference relevant or meaningful? The majority
suggests that it left us in Reynolds without “a fully briefed, fully argued
underlying case” and caused that appeal to “diverge[]” from this one. Id. This
explanation does not hold water. Reynolds controls here because the parties in
that case raised the same issues that are raised in this case. The majority
3
No. 2023AP36(D)
acknowledges that this is the key question, Majority, ¶3 n.4 (“The question is
whether the issues vary.”), but it gives the wrong answer.4
¶75 Finally, the majority claims that unlike in the present case, the circuit
court in Reynolds did not afford WVA an opportunity to “refine its request or to
explain or defend its petition.” Majority, ¶6 n.6. This appears to be another
reference to the fact that the circuit court in Reynolds dismissed WVA’s complaint
before WVA filed a brief opposing Reynolds’ motion, which as explained above is
not a meaningful distinction between Reynolds and this case.
B. Reynolds is substantively indistinguishable from this case.
¶76 Because Reynolds and this case are procedurally indistinguishable
and involve identical public records requests submitted by the same parties to
registers in probate, Reynolds controls here and we are bound to follow it. The
majority attempts to sidestep this obligation by claiming that its disagreement with
Reynolds is confined to Judge Lazar’s concurring opinion. Majority, ¶3. This is
not true. Reynolds reached multiple binding holdings that the majority opinion
directly contravenes.
¶77 Reynolds concluded that the NVE forms sought by WVA in this
case are confidential under WIS. STAT. § 54.75. It reached this conclusion by
determining that the forms are, in the words of the first sentence of that statute,
4
The majority’s declaration that Reynolds only decided one of the three issues it
identifies as raised here is simply not accurate. Nor is its assertion that Secord “focuses her entire
argument” on the second sentence of WIS. STAT. § 54.75 in assessing whether the NVA forms are
subject to disclosure. Majority, ¶30. The issues presented by WVA in its attempt to access the
same NVA forms under the same statutes from a register in probate are the same; the majority
simply attempts to distinguish them by ignoring the applicable statutes and precedent issue by
issue.
4
No. 2023AP36(D)
“court records pertinent to the finding of incompetency.” Reynolds, ___ Wis. 2d
___, ¶28; Sec. 54.75. This renders the forms “closed” to public access under
§ 54.75. Reynolds, ___ Wis. 2d ___, ¶26. Reynolds also determined that the
exception set forth in the second sentence of § 54.75, which permits disclosure of
two discrete pieces of information—(1) “[t]he fact that an individual has been
found incompetent” and (2) “the name of and contact information for” the
individual’s guardian—to a “person who demonstrates … a need for that
information,” does not apply to the NVE forms because they are not “the
information referenced in this sentence.” Reynolds, ___ Wis. 2d ___, ¶33 & n.9.
In addition, Reynolds rejected WVA’s suggestion that the Wisconsin Election
Commission’s (WEC) receipt of NVE forms following a circuit court’s
determination that a ward’s right to vote or to register to vote should be restricted
“might take the form outside the ‘closed’ status established by … § 54.75.”
Reynolds, ___ Wis. 2d ___, ¶32. The consequence of our statutory analysis in
Reynolds is the NVE forms are categorically exempt from disclosure under WIS.
STAT. § 19.36(1) of the Public Records Law, and thus, the balancing test in which
the public’s interest in favor of disclosure is weighed against the public interest
against disclosure does not apply. Reynolds, ___ Wis. 2d ___, ¶¶22, 34 n.10; see
also Watton v. Hegerty, 2008 WI 74, ¶¶27-28, 311 Wis. 2d 52, 751 N.W.2d 369.
¶78 On each of these points, the majority reaches the exact opposite
conclusion. Contrary to Reynolds, the majority concludes that the NVE forms are
subject to release under WIS. STAT. § 54.75. Majority, ¶4. Without analyzing the
holding of Reynolds, or the language of the statutory exception, the majority
counters that the second sentence of § 54.75 does apply to the forms, and simply
skips to its conclusion that WVA has demonstrated a “need” for the forms.
Majority, ¶4. The majority goes on to wholly ignore Reynolds’ explicit rejection
5
No. 2023AP36(D)
of an argument based on the fact that the forms are sent to WEC and Reynolds’
holding that the forms in the guardianship case files are “closed” to public access
under § 54.75. Majority, ¶29. And finally, the majority applies the balancing test,
concludes that the public interest in disclosure of the forms outweighs the public’s
interest in preserving the confidentiality of guardianship records, and largely rests
its decision to reverse the circuit court’s order on that balance of interests. Id.,
¶¶14-16, 19, 40. Each of these conclusions is in direct conflict with Reynolds.
II. The Majority’s Reinvention of Public Records Law Analysis is
Legally Unsound.
¶79 The majority’s analysis largely rests on its application of a public
interest balancing test. It does so despite Reynolds’ holding that NVE forms
sought by WVA in this case are confidential under WIS. STAT. § 54.75 and
therefore categorically exempt from disclosure under the Public Records Law. See
WIS. STAT. § 19.36(1) (“Any record which is specifically exempted from
disclosure by state or federal law or authorized to be exempted from disclosure by
state law is exempt from disclosure under [WIS. STAT. §] 19.35(1) ….”). The
consequences of the majority’s analysis, which enables one circuit court or two
appellate judges to engage in public policy analysis and override statutory
exceptions for confidential, privileged, or otherwise exempt records cannot be
overstated. The majority’s disregard for well-established precedent and the plain
language of § 19.36(1) exempting legislative designations of confidential or
otherwise exempt records, amounts to and invites unchecked judicial activism.
¶80 As Reynolds recognized, prior cases under the Public Records Law
have developed a multi-step test for determining the accessibility of records. In
the first step, courts determine whether the Public Records Law applies to the
items at issue. Democratic Party of Wis. v. DOJ, 2016 WI 100, ¶10, 372 Wis. 2d
6No. 2023AP36(D)
460, 888 N.W.2d 584. To answer that question, a court must first assess whether
the items are “records” as defined in WIS. STAT. § 19.32(2). See Linzmeyer v.
Forcey, 2002 WI 84, ¶15, 254 Wis. 2d 306, 646 N.W.2d 811. If they are, the
statutory presumption of accessibility codified in WIS. STAT. § 19.31 applies.
Democratic Party, 372 Wis. 2d 460, ¶10.5
¶81 That presumption, however, “does not create an absolute right of
access.” Watton, 311 Wis. 2d 52, ¶10. Instead, a requester who seeks access to
public records has the right to inspect them “[e]xcept as otherwise provided by
law.” WIS. STAT. § 19.35(1)(a). Thus, the next step in the analysis requires a
court to determine whether “a specific statutory exemption to disclosure” or “a
common law or public policy exception” prevents disclosure. Watton, 311
Wis. 2d 52, ¶¶9-10. WISCONSIN STAT. § 19.36 contains several such exemptions.
“For the types of records described in [§ 19.36], the legislature has determined that
they are categorically exempt from disclosure to the public.” Voces De La
Frontera, Inc. v. Clarke, 2017 WI 16, ¶20, 373 Wis. 2d 348, 891 N.W.2d 803.
¶82 Relevant here, WIS. STAT. § 19.36(1) provides that “[a]ny record
which is specifically exempted from disclosure by state or federal law or
authorized to be exempted from disclosure by state law is exempt from disclosure
5
The majority trumpets its decision as a vindication of Wisconsin’s commitment to open
and transparent government, Majority, ¶4 n.5, but it fails to identify a single case in which the
judiciary has compelled disclosure notwithstanding an applicable statutory exemption. The
majority has failed to identify a single case in which a court has engaged in a public records
balancing test in the face of a statutory exemption. To the contrary, the cases the majority cites
recognize that the right of public access is not absolute and will yield where that result is required
by an explicit statutory exception to access. See, e.g., Watton v. Hegerty, 2008 WI 74, ¶10, 311
Wis. 2d 52, 751 N.W.2d 369 (“[T]he presumption of access does not create an absolute right of
access. Access to records may be denied where there is a specific statutory exemption to
disclosure, WIS. STAT. § 19.36, or where there is a common law or public policy exception.”).
7
No. 2023AP36(D)
under [WIS. STAT. §] 19.35(1).” Importantly, if this or any other exemption or
exception applies to the records, “the analysis ends and the records will not be
disclosed.” Democratic Party, 372 Wis. 2d 460, ¶11. If, however, no exemption
or exception applies, the court proceeds to the final step, in which it balances the
public interest in favor of disclosure against the public interest opposing
disclosure. Milwaukee J. Sentinel v. DOA, 2009 WI 79, ¶¶54-55, 319 Wis. 2d
439, 768 N.W.2d 700; Linzmeyer, 254 Wis. 2d 306, ¶24.
¶83 The Wisconsin Supreme Court has made clear that courts are not to
weigh the interests for and against disclosure unless and until they determine that
no statutory, common law, or public policy exception categorically exempts a
record from disclosure. See, e.g., Hempel v. City of Baraboo, 2005 WI 120, ¶4,
284 Wis. 2d 162, 699 N.W.2d 551. In Watton, for example, our supreme court
held that statements of emergency detention possessed by a police department
were exempted from disclosure by several statutes within Wisconsin’s Mental
Health Act, WIS. STAT. ch. 51. Watton, 311 Wis. 2d 52, ¶20. Because the court
determined that these statutes prohibited disclosure of the statements, the court did
not “address Watton’s argument that the balance of interests between Wisconsin’s
policy of open government and Gray’s interests in keeping his mental health
records private tips in favor of disclosure.” Id., ¶28. The existence of a statutory
exemption was the end of the analysis. See also Voces De La Frontera, 373
Wis. 2d 348, ¶44 (concluding that records were “statutorily exempt from
disclosure under Wisconsin public records law” and thus declining to “reach the
… balancing test”).
¶84 A year after Watton, in Milwaukee Journal Sentinel, the supreme
court examined a collective bargaining agreement between the State and the
Wisconsin State Employees Union which contained a provision prohibiting the
8
No. 2023AP36(D)
State from disclosing certain information related to individuals represented by the
union to the press and others. 319 Wis. 2d 439, ¶5. There, the court concluded
that the legislature’s ratification of the agreement did not, by itself, create an
exception to the Public Records Law. Id., ¶54. Only after reaching that
conclusion did the court apply the balancing test to determine whether the union-
represented individuals’ information had to be disclosed. Id.; see also Linzmeyer,
254 Wis. 2d 306, ¶24 (analyzing balance of interests only after concluding that no
exemptions prevented disclosure of report).
¶85 The majority’s analysis upends this well-established analytical path.
The majority begins its discussion with the interest-balancing, asserting that it
must weigh “an individual citizen’s rights to privacy in a matter of utmost
importance to the individual’s dignity” against “the right of every Wisconsin
citizen to the constitutional guarantee of fair elections.” Majority, ¶14. The
majority then declares that the balance tips in favor of ensuring election integrity,
concluding that “[e]very citizen of this state has the right” to know who is
responsible for the purported error WVA has uncovered “because left
unaddressed, it risks each citizen’s right to have his or her vote counted in the
9
No. 2023AP36(D)
course of a fair election.” Id., ¶19. Thus, WVA has prevailed before the statutory
analysis even begins.6
¶86 When the majority does reach the statute, its blink-and-you’ll-miss-it
analysis is incomplete. The majority begins by noting that no party disputes that
the NVE form is a “record” under WIS. STAT. § 19.32(2). Majority, ¶25. And …
that’s about it. The majority recognizes the three categories of exceptions to
disclosure, id., ¶26, including statutory exceptions, but asserts that “[n]o statutory
exception” applies. Id., ¶28. But there is no analysis underlying that conclusion,
no mention of the statutory exception in WIS. STAT. § 19.36(1) for records
exempted from disclosure by state law, and no explanation why WIS. STAT.
§ 54.75 does not constitute such a state law. Again, all in direct conflict with
Reynolds. Instead, the majority briefly delves back into the balance of interests
for and against disclosure, Majority, ¶¶28-29, before concluding with a review of
6
What’s more, the majority’s approach to the interest-balancing is not consistent with
Wisconsin law. The Wisconsin Supreme Court has instructed that the balancing test “must be
applied with respect to each individual record.” Milwaukee J. Sentinel, 319 Wis. 2d 439, ¶56;
see also Wisconsin State J. v. Blazel, 2023 WI App 18, ¶60, 407 Wis. 2d 472, 991 N.W.2d 450.
No such individualized, form-by-form consideration appears in the majority opinion. Perhaps
this is not surprising: the circuit court did not engage in that individualized inquiry because it
concluded that the NVE forms were categorically exempt from disclosure under WIS. STAT.
§ 54.75. In the context of discussing the mandamus factors, the circuit court did determine that
WVA’s stated need was speculative. The majority ignores the circuit court’s conclusion and
jumps into the balancing analysis for itself. This is significant because, as explained in footnote
eight of this dissent, the record contains no facts showing election integrity has been
compromised in Walworth County.
10
No. 2023AP36(D)
the four requirements for mandamus relief. Id., ¶¶31-34.7 This reasoning bears no
resemblance to the framework set out in Democratic Party, Watton, and countless
other public records cases. Thus, the majority’s analysis is in direct conflict with
Reynolds and the statutory exemption at issue here, as well as WIS. STAT. ch. 19
and well-established public records cases.
III. The Majority’s Reliance on the “Need” Exception Also Ignores
Reynolds and the Statutory Language of WIS. STAT. § 54.75.
¶87 The majority also addresses, in a separate section, WVA’s
“alternative” argument that it has shown a “public need” for the NVE forms.
Majority, ¶¶35-40. As noted above, the majority’s conclusion that WVA is
entitled to the NVE forms cannot be reconciled with Reynolds and the text of WIS.
STAT. § 54.75. The statute permits the disclosure of two pieces of information
upon a showing of need—(1) “[t]he fact that an individual has been found
incompetent” and (2) “the name of and contact information for” the individual’s
guardian. Id. As Reynolds recognized, information regarding an individual’s
eligibility to vote or register to vote is not accessible under this very limited
exception. Reynolds, ___ Wis. 2d ___, ¶33 & n.9. Nor is almost all of the other
information that is displayed on the NVE form, such as the ward’s date of birth,
7
Before it addresses the mandamus factors, the majority accuses Secord of failing to
“give appropriate attention” to the portion of the first sentence in WIS. STAT. § 54.75 which states
that “court records pertinent to the finding of incompetency” are “subject to access … under an
order of the court under this chapter.” Majority, ¶30. The majority does not explain why this
portion of the statute merits attention, but to the extent the majority believes that it provides a
path for WVA to obtain the NVE forms in this lawsuit, it is mistaken. WVA’s petition in this
action seeks a writ of mandamus to compel the disclosure of records under Wisconsin’s Public
Records Law, which is contained in Chapter 19 of the Wisconsin Statutes. Section 54.75, in
contrast, permits access to guardianship records pursuant to an order issued “under this
chapter”—WIS. STAT. ch. 54. A writ of mandamus issued under ch. 19 is not an order issued
under ch. 54. Thus, the first sentence in § 54.75 is not a viable path to obtain the NVE forms.
11
No. 2023AP36(D)
the guardianship case number and the date the ward was declared incompetent.
The majority’s analysis fails to address what § 54.75 actually allows to be
disclosed upon a showing of need and makes no attempt to explain how the NVE
form or the information displayed on the form fits within that narrow category.8
8
While Reynolds is dispositive regarding the applicability of the exception in the second
sentence of WIS. STAT. § 54.75, I note that, even if the fact that an individual had been found
incompetent could be disclosed on a showing of need, WVA’s petition fails to make that
showing.
According to the majority, WVA “asserts it has an interest in seeing that the voter rolls in
Wisconsin are accurate so that our elections comport with constitutional guarantees.” Majority,
¶36. But WVA’s petition does not plausibly allege any inaccuracy in the voter rolls, particularly
as it pertains to individuals in Walworth County. As the circuit court noted, WVA does not
allege that any person in Walworth County who is ineligible to vote as the result of being placed
under a guardianship has voted illegally or even been sent a ballot. (The only occurrence of such
behavior noted in the petition pertained to an individual in Outagamie County.) And WVA
concedes it has no evidence that Secord is not sending NVE forms to WEC when the Walworth
County Circuit Court places an individual under guardianship and finds them to be incapable of
exercising the right to vote or to register to vote.
Lacking such evidence, WVA relies entirely on the alleged difference between the
number of individuals adjudicated as incompetent and placed under guardianships in Walworth
County from 2016 through 2021 (157) and the number of persons from Walworth County who
were listed as ineligible to vote in the database of voter registration information as of an
unspecified date (1). That difference does not show a need to pry open Walworth County’s
guardianship files. As Secord informed WVA in her June 24, 2022 letter, the year-by-year totals
of adjudicated incompetents from 2016-2021
do not differentiate between individuals who have retained rights
and those who have had rights restricted. Individuals could be
found incompetent and retain their right to vote, marry, serve
on a jury, and many other rights outlined in § 54.25(2), Wis.
Stats. Every finding of incompetency is not an automatic loss of
voting rights.
It is just as likely that many, if not most, of the persons placed under guardianship in Walworth
County did not have their right to vote restricted. It is also possible that some of those individuals
are no longer alive, no longer reside in Walworth County, or have since had their right to vote
restored. As the circuit court aptly found, to contend that there is a “discrepancy” is entirely
speculative. In short, the majority can point to no facts to show that there is a discrepancy or any
wrongful voting in Walworth County.
12
No. 2023AP36(D)
¶88 If, as the majority professes, Cook requires us to follow Reynolds,
then we must do so. Aside from that being our duty as judges, it is obviously the
wiser course of action. What are the circuit courts presiding over WVA’s other
mandamus actions, and the parties in those actions, supposed to do after today?
Reynolds tells them the NVE forms are not subject to disclosure under WIS. STAT.
§ 54.75, and therefore WVA is not entitled to a writ of mandamus compelling their
disclosure. Today, the majority tells those same courts and litigants the exact
opposite. They are now faced with an impossible situation: they cannot follow
both Reynolds and this case. In creating this state of affairs, the majority brings
about the undesirable consequences foreshadowed in Cook: a fracturing of this
court and an undermining of “the principles of predictability, certainty and finality
relied upon by litigants, counsel and the circuit courts.” See Cook, 208 Wis. 2d at
189.
¶89 We do a disservice to the bench, the bar, and the public when we
unnecessarily create such conflict and uncertainty. In its headlong rush to climb
up and “walk[] [the] tightrope,” Majority, ¶15, between preserving the
confidentiality of guardianship proceedings and ensuring electoral integrity, the
majority ignores the more modest and prudent paths at its feet that were
illuminated by Cook:
The court of appeals, however, is not powerless if it
concludes that a prior decision of the court of appeals or the
supreme court is erroneous. It may signal its disfavor to
litigants, lawyers and this court by certifying the appeal to
this court, explaining that it believes a prior case was
wrongly decided. Alternatively, the court of appeals may
decide the appeal, adhering to a prior case but stating its
belief that the prior case was wrongly decided.
Cook, 208 Wis. 2d at 190. The majority’s failure to follow the binding precedent
set forth in Reynolds and disregard of the analytical framework developed to
13
No. 2023AP36(D)
address public records claims is an unprecedented choice with far-reaching
implications for the rule of law in Wisconsin.
IV. The Concurrence’s Statutory Interpretation is Flawed.
¶90 I conclude by addressing the concurrence, which analyzes whether
the NVE forms are “court records pertinent to the finding of incompetency” and
thus “closed” to public access under WIS. STAT. § 54.75. In my view, Reynolds
sets forth a more persuasive analysis of this statutory language, in particular the
meaning of the word “pertinent.” Thus, I agree with Reynolds’ conclusion that the
forms are “pertinent to the finding of incompetency.” See Reynolds, ___ Wis. 2d
___, ¶28. I address the concurrence to highlight what are, in my view, three errors
in its statutory analysis.
¶91 First, a significant factor that leads the concurrence to conclude that
NVE forms are not pertinent to the finding of incompetency is its belief that
transmission of the forms from the circuit court to WEC makes the forms, and the
information contained on them, publicly available.9 Concurrence, ¶42. The
concurrence contends that “voter eligibility communications are expressly
designed to be made public,” id., ¶45; that a circuit court, upon finding an
individual incompetent, “communicates that publicly … to WEC” via the NVE
form, id., ¶55; and that the form itself “put[s] WEC, the viewers of WisVote, and
all voting precincts on notice that an individual has been declared incompetent,”
id.
This belief also drives the majority’s balancing of interests and “need” analyses.
9
Majority, ¶29.
14
No. 2023AP36(D)
¶92 The concurrence’s view runs contrary to our conclusion in Reynolds
that “the confidentiality of an NVE form contained in a circuit court file is not
affected by WEC’s treatment of a duplicate of the same form.” ___ Wis. 2d ___,
¶32. The concurrence loses sight of the fact that the request at issue here seeks to
compel disclosure of the NVE forms contained in the guardianship files of the
register of probate, not WEC.
¶93 Next, in construing the phrase “pertinent to the finding of
incompetency” in WIS. STAT. § 54.75, the concurrence relies significantly on
several defamation cases to support its conclusion that the statutory language only
extends to “information, data, and testimony that is referenced in the judicial
proceedings and leads up to the court-ordered adjudication.” Concurrence, ¶¶45-
47, 52. Those defamation cases do not provide meaningful guidance in
determining the scope of “pertinent” in § 54.75. In those cases, our supreme court
considered whether the plaintiffs had stated viable defamation claims, which were
premised on statements made in the course of judicial proceedings. See Schultz v.
Strauss, 127 Wis. 325, 328-29, 106 N.W. 1066 (1906) (assessing viability of
defamation claim premised on a statement made during grand jury proceeding);
Bussewitz v. Wisconsin Teachers’ Ass’n, 188 Wis. 121, 123-25, 205 N.W. 808(1925) (examining defamation claim premised on a statement made in
counterclaim). To assess the claims’ viability, the court had to determine whether
the statements at issue were “pertinent and related to the subject of inquiry” in the
proceedings because if they were, they could not be the basis for a defamation
claim. See Schultz, 127 Wis. at 328-29 (“It is well recognized by numerous
adjudications ‘that words spoken in the course of judicial proceedings, though they
are such as impute crime to another, and therefore if spoken elsewhere, would
15
No. 2023AP36(D)
import malice and be actionable in themselves, are not actionable if they are
applicable and pertinent to the subject of inquiry.’” (citation omitted)).
¶94 The statements at issue in Schultz and Bussewitz were necessarily
made in the course of judicial proceedings because the litigation privilege would
not have been relevant had they been made outside the proceedings or after they
had concluded. Thus, these cases, and the others cited by the concurrence,
specifically address the relevance of what takes place during a judicial
proceeding—defamatory remarks or evidentiary determinations–and have nothing
to do with whether an NVE form that is completed and sent to WEC after a
finding of incompetency has been made is nonetheless “pertinent to” that finding.
And, as Reynolds aptly points out, WVA’s attempt (embraced by the concurrence)
to cabin “pertinent to the finding of incompetency” to the facts supporting the
competency determination set forth during the proceeding, “transforms the
language into something along the lines of ‘pertinent to the facts supporting the
finding of incompetency,’” which is not what WIS. STAT. § 54.75 says. Reynolds,
___ Wis. 2d ___, ¶30 n.8.
¶95 Finally, the concurrence faults Reynolds for not construing the term
“pertinent” “in the context of the entire phrase in which it is used” in WIS. STAT.
§ 54.75—“pertinent to the finding of incompetency.” Concurrence, ¶66. That, in
my opinion, ignores several key paragraphs in Reynolds. In that case, we
consulted several dictionary definitions of the word “pertinent,” and then
considered those definitions with the rest of the statutory language. Reynolds, ___
Wis. 2d ___, ¶¶28-30. In paragraphs twenty-eight to thirty of Reynolds, we
plugged the dictionary definitions of “pertinent” into the language of § 54.75 and
explained why the NVE forms “‘hav[e] some connection with’ and ‘relat[e] to,’
the finding of incompetency.” Reynolds, ___ Wis. 2d ___, ¶¶28-30 (citation
16
No. 2023AP36(D)
omitted). That is so, Reynolds states, because the forms are “created in the
context of proceedings in which incompetency is determined for purposes of
establishing guardianship,” id., ¶28; “contain[] information drawn directly from
the guardianship proceedings,” id., ¶29; and were “the standard means of making a
statutorily required report of the circuit court’s determination regarding
restrictions to an individual’s voting rights as a result of the court’s finding of
incompetency in a guardianship proceeding,” id., ¶30. The analysis in these
paragraphs is what the concurrence incorrectly claims Reynolds lacks.10
****
¶96 No one disputes the important interest in ensuring that only those
who are eligible to vote in Wisconsin elections are able to cast a ballot. As a state,
we are well-served when government and the public work to make sure our
elections are run with fairness, integrity, and fidelity to the law. Nor do I disagree
with the majority that Wisconsin law embodies a strong commitment to allowing
the public access to the workings of government. But the importance of these
interests is not a license to trample or disregard other important aspects of
10
Equally unavailing, after reviewing a handful of irrelevant cases, several ancient, the
concurrence declares that “all of the legal authorities, all of the cases, and all of the dictionary
definitions” support its attempt to cabin “pertinent” to facts considered during a judicial
proceeding. Concurrence, ¶57. Again, WIS. STAT. § 54.75 does not limit its reach to facts
supporting the finding of incompetency, or to findings of incompetency. The concurrence’s
analysis adds words and ignores the plain language of the statute: all records pertinent to the
finding of incompetency are confidential.
17
No. 2023AP36(D)
Wisconsin law. Today the majority does just that.11 It fails to adhere to precedent
and to apply the well-established analysis that governs Public-Records-Law
claims. It purports to vindicate the interest in ensuring voting integrity even
though WVA has presented no evidence of irregularities in Walworth County.
And it compels the disclosure of confidential court records expressly exempted
from disclosure by statute. Because I do not agree with the majority’s analysis or
conclusion, I respectfully dissent.
11
The majority’s flawed public policy analysis appears to be driven by its belief that the
legislature should not have afforded confidential status to wards and, without any factual support,
that the statutory reporting system to local election officials risks error. The proper route to
address such matters is through the legislature. See State v. Pocian, 2012 WI App 58, ¶12, 341
Wis. 2d 380, 814 N.W.2d 894; Meriter Hosp., Inc. v. Dane County, 2004 WI 145, ¶35, 277
Wis. 2d 1, 689 N.W.2d 627 (“If a statute fails to cover a particular situation, and the omission
should be cured, the remedy lies with the legislature, not the courts.” (citation omitted)).
Recognizing this to be the case, several bills have been proposed to address the reporting system,
including a proposal to require prompt reporting of a determination of incompetency to vote to
WEC by email, as well as to local officials, to ensure that these individuals are identified as
ineligible. See, e.g., 2023 A.B. 567. I do not highlight these pending bills, as the majority
suggests, to suggest that we refrain from deciding this case until they are enacted into law.
Majority, n.20. I do so to illustrate the point that, given the relevant statutes as they currently
exist, it is the legislature’s role, not this court’s, to devise a remedy for the issues WVA claims to
have uncovered. Whether such proposals are enacted or not, as discussed herein, the majority
overrides the current statutes to craft its own approach, and makes public personal, sensitive, and
confidential information of individuals who have complied with the law, so that WVA can do a
comparison to the public voter database.
18