Friends of Frame Park, U.A. v. City of Waukesha

2022 WI 57SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP96
COMPLETE TITLE: Friends of Frame Park, U.A.,
Plaintiff-Appellant,
v.
City of Waukesha,
Defendant-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 394 Wis. 2d 387, 950 N.W.2d 831PDC No: 2020 WI App 61 - Published
OPINION FILED: July 6, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 9, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Michael O. Bohren
JUSTICES:
HAGEDORN, J., delivered the majority opinion of the Court with
respect to ¶3, in which ZIEGLER, C.J., ROGGENSACK, and REBECCA
GRASSL BRADLEY, JJ., joined, an opinion with respect to ¶¶13-24,
in which ZIEGLER, C.J., and ROGGENSACK, J., joined, and an
opinion with respect to ¶¶1-2, 4-12, 25-38. REBECCA GRASSL
BRADLEY, J., filed a concurring opinion, in which ZIEGLER, C.J.,
and ROGGENSACK, J., joined. KAROFSKY, J., filed a dissenting
opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
filed by John M. Bruce and West & Dunn, LLC, Two Rivers. There
was an oral argument by John M. Bruce.
For the plaintiff-appellant, there was a brief filed by
Joseph R. Cincotta and The Law Offices of Joseph R. Cincotta,
Milwaukee. There was an oral argument by Joseph R. Cincotta.
An amicus curiae brief was filed by James A. Friedman,
Maxted M. Lenz and Godfrey & Kahn, S.C., Madison, for the
Wisconsin Broadcasters Association, the Wisconsin Freedom of
Information Council, the Wisconsin Newspaper Association, the
Wisconsin Transparency Project, and the Reporters Committee for
Freedom of the Press. There was an oral argument by James A.
Friedman.
2
2022 WI 57NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP96
(L.C. No. 2017CV2197)
STATE OF WISCONSIN : IN SUPREME COURT
Friends of Frame Park, U.A.,
Plaintiff-Appellant, FILED
v. JUL 6, 2022
City of Waukesha, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent-Petitioner.
HAGEDORN, J., delivered the majority opinion of the Court with
respect to ¶3, in which ZIEGLER, C.J., ROGGENSACK, and REBECCA
GRASSL BRADLEY, JJ., joined, an opinion with respect to ¶¶13-24,
in which ZIEGLER, C.J., and ROGGENSACK, J., joined, and an
opinion with respect to ¶¶1-2, 4-12, 25-38. REBECCA GRASSL
BRADLEY, J., filed a concurring opinion, in which ZIEGLER, C.J.,
and ROGGENSACK, J., joined. KAROFSKY, J., filed a dissenting
opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 BRIAN HAGEDORN, J. In this public records case, the
City of Waukesha denied access to a draft contract with a
private entity to protect ongoing negotiations and until it
consulted with the City's Common Council. The requester brought
a mandamus action seeking access to the withheld contract. Two
No. 2019AP96
days later, after a meeting of the Common Council, the City
turned over the record to the requester.
¶2 The first issue in this case relates to attorney's
fees in public records cases. The parties disagree over the
test we should use to determine whether the requester, in the
statute's words, "prevail[ed] in whole or in substantial part,"
and is therefore entitled to attorney's fees. Wis. Stat.
§ 19.37(2)(a) (2019-20).1 The court of appeals has previously
employed a causal-nexus test——querying whether the release of
records was caused in some way by the litigation. In this case,
where the records custodian voluntarily turned over the
requested record, the court of appeals recognized the
limitations of a causation-based approach and considered whether
the records were properly withheld in the first place. This is
the first occasion for this court to fully analyze what it means
for a party to "prevail[] in whole or in substantial part" under
§ 19.37(2)(a). Faced with these varying approaches, we conclude
we must return the analytical framework to one more closely
tethered to the statutory text. The varying tests utilized by
the court of appeals in the past do not track the meaning of the
words the legislature used.
¶3 Four justices agree that to "prevail[] in whole or in
substantial part" means the party must obtain a judicially
1All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
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No. 2019AP96
sanctioned change in the parties' legal relationship.
Accordingly, a majority of the court adopts this principle.
¶4 This conclusion arguably raises other statutory
questions. Prior court of appeals cases have held that a
requester could still pursue attorney's fees even if the records
have been voluntarily turned over. This conclusion rested on
its causation-based theory, however. The concurrence argues
that under the proper statutory test we announce today, a
mandamus action becomes moot after voluntary compliance, and
record requesters have no separate authority to pursue
attorney's fees. We save this issue for another day. Even if
record requesters can pursue attorney's fees following release
of the requested records, an award of fees would not be
appropriate here. This is so because in temporarily withholding
the draft contract, the City complied with the public records
law. Applying the balancing test, the City pointed to the
strong public interest in nondisclosure——namely, protecting the
City's negotiating and bargaining position and safeguarding the
Common Council's prerogative in contract approval. These
considerations outweigh the strong public policy in favor of
disclosure. Furthermore, the City recognized the balance of
interests would shift after the Common Council meeting, and it
properly disclosed the draft contract at that time. Therefore,
the City did not violate the public records law. And thus, the
requester did not and could not prevail in whole or substantial
part in this action. Therefore, no judicially sanctioned change
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No. 2019AP96
in the parties' relationship is appropriate and the requester is
not entitled to any attorney's fees.
I. BACKGROUND
¶5 Friends of Frame Park, U.A. (Friends) is an
association composed of several members who own property, work,
and pay taxes to the City of Waukesha and make use of City
parks, including Frame Park. Friends sent the City a public
records request on October 9, 2017, seeking information about
the City's plans to bring amateur baseball to Waukesha.2 The
request stated in part: "Please include any Letters of Intent
(LOI) or Memorandum of Understanding (MOU) or Lease Agreements
between Big Top Baseball and or Northwoods League Baseball and
the City of Waukesha during the time frame of 5-1-16 to the
present time frame."
¶6 The City responded two weeks later. It provided all
documents responsive to Friends' request except a draft contract
with Big Top Baseball. The City explained its decision to
temporarily withhold the document as follows:
A park use contract with Big Top Baseball is presently
in draft form. Because the contract is still in
negotiation with Big Top, and there is at least one
other entity that may be competing with the City of
Friends' registered agent, Scott Anfinson, made this
2
public records request; Friends was formally established a month
later, in November 2017. The circuit court held that Friends
was a proper party to bring an action in connection with the
public records request signed by Mr. Anfinson. The City did not
challenge this ruling on appeal. Thus, this opinion refers to
the records requestor as Friends.
4
No. 2019AP96
Waukesha for a baseball team, the draft contract is
being withheld from your request, pursuant to Wis.
Stats. §§ 19.35(1)(a) and § 19.85(1)(e). This is to
protect the City's negotiating and bargaining
position. The draft contract is subject to review,
revision, and approval of the Common Council before it
can be finalized, and the Common Council have not yet
had an opportunity to review and discuss the draft
contract. Protecting the City's ability to negotiate
the best deal for the taxpayers is a valid public
policy reason to keep the draft contract temporarily
out of public view - Wis. Stats. § 19.35(1)(a) states
that exemptions to the requirement of a governmental
body to meet in open session are indicative of public
policy in this regard, and Wis. Stats. § 19.85(1)(e)
exempts from open session "[d]eliberating or
negotiating the purchasing of public properties, the
investing of public funds, or conducting other
specified public business, whenever competitive or
bargaining reasons require a closed session." There
currently is a need to restrict public access for
competitive and bargaining reasons until the Council
has an opportunity to review the draft and determine
whether it wants to adopt it or set different
parameters for continued negotiations with the
interested parties. If the contract's terms were made
public, it would substantially diminish the City's
ability to negotiate different terms the Council may
desire for the benefit the City.
Because the City's negotiating and bargaining position
could be compromised by public disclosure of the draft
contract before the Common Council have had an
opportunity to consider the draft, after applying the
balancing test, the public's interest in protecting
that negotiating and bargaining position outweighs the
public's interest in disclosing the draft contract at
this point. You will get a copy of the contract after
the Common Council has taken action on it.
¶7 Friends believed the City improperly withheld the
draft contract and knew the use of Frame Park was on the Common
Council meeting agenda for December 19, 2017. So the day before
the Common Council meeting, in order to preserve its remedies,
5
No. 2019AP96
Friends filed a mandamus action under Wis. Stat. § 19.37(1)
seeking production of the draft contract, attorney's fees, and
other expenses. The following evening, the City's Common
Council met. It is unclear from the meeting minutes whether, or
to what extent, the draft contract was discussed. The minutes
note the following with respect to Frame Park: "Citizen
speakers registering comments against baseball at Frame Park";
the "City Administrator's Report" included a "Northwoods
Baseball League Update"; and an "item for next Common Council
Meeting under New Business" was to, "Create an ADHOC Committee
for the purpose to address Frame Park and Frame Park issues."
¶8 The next day, on December 20, 2017, the City released
the draft contract to Friends.3 Consistent with its explanation
initially denying release, the City explained the documents "are
being released now because there is no longer any need to
protect the City's negotiating and bargaining position."
¶9 Friends then amended its complaint, asking the circuit
court4 to hold that the City improperly withheld the draft
contract. In advance of trial, the City filed a motion for
Friends included the draft contract in its appendix to its
3
response brief, despite the court of appeals admonition that
submission of the draft contract was improper. Friends of Frame
Park, U.A. v. City of Waukesha, 2020 WI App 61, ¶12 n.5, 394
Wis. 2d 387, 950 N.W.2d 831. Our review is limited to materials
in the record. See Roy v. St. Lukes Med. Ctr., 2007 WI App 218,
¶10 n.1, 305 Wis. 2d 658, 741 N.W.2d 256. The draft contract
was not made a part of the record before us; therefore, we do
not consider the draft contract in making our decision.
The Honorable Michael O. Bohren of the Waukesha County
4
Circuit Court presided.
6
No. 2019AP96
summary judgment which the circuit court granted; Friends did
not move for summary judgment. The circuit court concluded the
City "properly withheld certain public records temporarily in
response to the record request made by [Friends] for the reasons
set forth in the letter . . . and appropriately relied on Wis.
Stat. § 19.85(1)(e) as the basis for doing so under the
circumstances of this case." It further concluded that Friends
was not entitled to attorney's fees under Wis. Stat. § 19.37(2).5
¶10 Friends appealed, and the court of appeals reversed.
Friends of Frame Park, U.A. v. City of Waukesha, 2020 WI App 61,
394 Wis. 2d 387, 950 N.W.2d 831. The court concluded that the
City's reliance on the negotiating and bargaining "exception was
unwarranted and led to an unreasonable delay in the record's
release." Id., ¶5. Regarding attorney's fees, the court
explained that in most cases the court of appeals has utilized a
causation-based test, but it determined that test did not make
sense in this case. Id., ¶3. Rather, the court of appeals held
that "the key consideration is whether the authority properly
invoked the exception in its initial decision to withhold
release." Id., ¶4. Using this approach, and based on its
conclusion that the City erred in withholding the record, the
court determined that Friends was "entitled to some portion of
its attorney's fees" and remanded the cause to the circuit court
5 The circuit court also granted summary judgment for the
City with respect to subsequent records requests made by
Friends. Friends did not appeal this aspect of the decision.
7
No. 2019AP96
to ascertain the amount. Id., ¶5. We granted the City's
petition for review.
II. DISCUSSION
¶11 Procedurally, this case is a review of the circuit
court's decision to grant summary judgment, which we review
independently. J. Times v. City of Racine Bd. of Police & Fire
Comm'rs, 2015 WI 56, ¶42, 362 Wis. 2d 577, 866 N.W.2d 563.
Summary judgment "shall be rendered if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Wis. Stat.
§ 802.08(2).
¶12 The two questions before us concern entitlement to
attorney's fees under Wis. Stat. § 19.37(2)(a), and whether the
City properly withheld the draft contract until after the Common
Council meeting. These are questions of statutory
interpretation and application which we review independently.
J. Times, 362 Wis. 2d 577, ¶42.
A. Attorney's Fees Under the Public Records Law
¶13 When "an authority withholds a record or a part of a
record or delays granting access to a record or part of a record
after a written request for disclosure is made" the record
requester may "bring an action for mandamus asking a court to
order release of the record" or may request the district
8
No. 2019AP96
attorney to bring a mandamus action. Wis. Stat. § 19.37(1).
Section 19.37 provides that the record requester may be entitled
to various damages and fees as a result of the mandamus action.
See § 19.37(2)-(4). Relevant to this case, § 19.37(2)(a)
contains the following fee-shifting provision:
Except as provided in this paragraph, the court shall
award reasonable attorney fees, damages of not less
than $100, and other actual costs to the requestor if
the requester prevails in whole or in substantial part
in any action filed under sub. (1) relating to access
to a record or part of a record under [Wis. Stat.
§] 19.35(1)(a).
(Emphasis added). Besides attorney's fees, the law also
specifies that the circuit court shall award actual damages if
"the authority acted in a willful or intentional manner" and may
award punitive damages if the authority "arbitrarily and
capriciously denied or delayed response to a request or charged
excessive fees." § 19.37(2)(b), (3); see also Cap. Times Co. v.
Doyle, 2011 WI App 137, ¶¶7, 11, 337 Wis. 2d 544, 807 N.W.2d 666(concluding actual and punitive damages are limited to mandamus
actions).
¶14 Wisconsin Stat. § 19.37(2)(a)——the attorney's fees
provision at issue here——was originally enacted in 1982 and was
comparable to the then-existing fee-shifting provision in the
federal Freedom of Information Act (FOIA). FOIA provided that
courts "may assess against the United States reasonable attorney
fees and other litigation costs reasonably incurred in any case
under this section in which a complainant has substantially
9
No. 2019AP96
prevailed."6 5 U.S.C. § 552(a)(4)(E) (1976) (emphasis added).
But what does it mean to "prevail" under these statutes?
¶15 The answer to this question in Wisconsin and in
federal courts has centered on two alternatives: a causation-
based approach, and an interpretation that requires some
judicially sanctioned change in the parties' legal relationship.
The latter definition is endorsed by the United States Supreme
Court and is the better interpretation of "prevails" in Wis.
Stat. § 19.37(2)(a). To explain why, we explore how these two
approaches came to be.
1. Causal-Nexus Test
¶16 In Wisconsin, the court of appeals first considered
the meaning of Wis. Stat. § 19.37(2)(a) in Racine Education
Ass'n v. Board of Education for Racine Unified School District
(Racine I), 129 Wis. 2d 319, 385 N.W.2d 510 (Ct. App. 1986).
There, the court of appeals concluded the statutory language
"prevails in whole or substantial part" failed to provide any
criteria and was unclear. Id. at 326. It therefore turned to
federal case law interpreting FOIA's fee shifting provision.
Id. at 326-28.
6Under the federal statute, this is just the start of the
inquiry into whether a party is entitled to receive attorney's
fees. Unlike Wis. Stat. § 19.37(2)(a), FOIA permits but does
not require a court to grant attorney's fees. The determination
of whether to award fees ultimately rests with the district
court, which is instructed to consider several non-exhaustive
factors in making its determination. See Church of Scientology
of Cal. v. Harris, 653 F.2d 584, 590 (D.C. Cir. 1981).
10
No. 2019AP96
¶17 It found persuasive the D.C. Circuit's decision in Cox
v. United States Department of Justice, 601 F.2d 1 (D.C. Cir.
1979) (per curiam). The court in Cox held that a party could
seek fees under FOIA "in the absence of a court order" if
"prosecution of the action could reasonably be regarded as
necessary to obtain the information and that a causal nexus
exists between that action and the agency's surrender of the
information." Id. at 6 (citations omitted). This later became
known as the "catalyst theory," an interpretation "which posits
that a plaintiff is a 'prevailing party' if it achieves the
desired result because the lawsuit brought about a voluntary
change in the defendant's conduct." Buckhannon Bd. & Care Home,
Inc. v. W. Va. Dep't of Health and Hum. Res., 532 U.S. 598, 601
(2001). The court of appeals in Racine I adopted "the Cox
analysis for use in determining whether a party has 'prevail[ed]
in whole or in substantial part'" under Wis. Stat.
§ 19.37(2)(a). 129 Wis. 2d at 328 (alteration in original).
¶18 Although the test has evolved somewhat since Racine I,7
the court of appeals has generally held that a party "prevails"
Subsequent cases mixed the federal catalyst theory with
7
Wisconsin's causation analysis for common law negligence.
The test of cause in Wisconsin is whether the actor's
action was a substantial factor in contributing to the
result. The phrase "substantial factor" denotes that
the actor's conduct has such an effect in producing
the result as to lead the trier of fact, as a
reasonable person, to regard it as a cause, using that
word in the popular sense.
State ex rel. Vaughan v. Faust, 143 Wis. 2d 868, 871-72, 422
N.W.2d 898 (Ct. App. 1988) (citing Merco Distrib. Corp. v. Com.
11
No. 2019AP96
in a public records action if there is a causal nexus between
the requestor bringing the action and the defendant providing
the requested records.
2. Judicially Sanctioned Change in the Parties' Legal
Relationship
¶19 Federal courts have not followed in step, however. In
2001, the United States Supreme Court concluded that the D.C.
Circuit's approach in Cox——the case Racine I relied on——is
inconsistent with the proper understanding of what it means to
prevail in a lawsuit. Buckhannon, 532 U.S. 598. In Buckhannon,
the Court considered the meaning of the term "prevailing party"
in the fee-shifting provisions of the Fair Housing Amendments
Act (FHAA) and the Americans with Disabilities Act (ADA).8
Police Alarm Co., 84 Wis. 2d 455, 458-59, 267 N.W.2d 652 (1978)
(analyzing the causation element of common law negligence)). In
Faust, the court of appeals further explained that "but for"
causation was not required. Id. at 872-73. And in WTMJ, Inc.
v. Sullivan, the court of appeals noted, "The action may be one
of several causes; it need not be the sole cause." 204
Wis. 2d 452, 458-59, 555 N.W.2d 140 (Ct. App. 1996).
We have mentioned the causation test before. See J. Times
v. City of Racine Bd. of Police & Fire Comm'rs, 2015 WI 56, ¶57,
362 Wis. 2d 577, 866 N.W.2d 563. In Journal Times, we noted
that "if the failure to timely respond to a request was caused
by an unavoidable delay accompanied by due diligence in the
administrative processes, . . . the plaintiff has not
substantially prevailed." Id. However, we went on to conclude
that the plaintiff was not entitled to attorney's fees because
it "did not prevail in substantial part." Id., ¶104. We have
not previously been presented a question squarely addressing the
causation test or its contours.
8The fee-shifting provision under the FHAA provided, "[T]he
court, in its discretion, may allow the prevailing party . . . a
12
No. 2019AP96
Id. at 601. It expressly rejected Cox's causation-based
interpretation, concluding instead that "the term 'prevailing
party'" refers to "one who has been awarded some relief by the
court." Id. at 603.
¶20 The Court explained that "prevailing party" is a
"legal term of art." Id. at 603. It referenced Black's Law
Dictionary, which defined "prevailing party" as a "party in
whose favor a judgment is rendered, regardless of the amount of
damages awarded . . . .——Also termed successful party." Id.
(citing Black's Law Dictionary 1145 (7th ed. 1999)). The
question therefore was simply whether there was a "court-ordered
change in the legal relationship between the plaintiff and the
defendant." Id. at 604 (alteration omitted) (quoting another
source). And while a consent decree incorporating a settlement
agreement may suffice to establish one's status as a prevailing
party, a "defendant's voluntary change in conduct, although
perhaps accomplishing what the plaintiff sought to achieve by
the lawsuit" does not suffice because it "lacks the necessary
judicial imprimatur on the change." Id. at 605.
¶21 In Buckhannon's aftermath, federal circuit courts
promptly applied its interpretative analysis to the term
reasonable attorney's fee and costs." Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep't of Health and Hum. Res., 532
U.S. 598, 601 (2001) (quoting FHAA, 42 U.S.C. § 3613(c)(2)).
The fee-shifting provision under the ADA provided, "[T]he
court . . . , in its discretion, may allow the prevailing
party . . . a reasonable attorney's fee, including litigation
expenses, and costs." Id. (quoting ADA, 42 U.S.C. § 12205).
13
No. 2019AP96
"substantially prevailed" in FOIA's fee shifting provision.
E.g., Oil, Chem. & Atomic Workers Int'l Union, AFL–CIO v. Dep't
of Energy, 288 F.3d 452, 456–57 (D.C. Cir. 2002); Union of
Needletrades, Indus. & Textile Emps., AFL–CIO, CLC v. U.S.
Immigr. & Naturalization Serv., 336 F.3d 200, 205-06 (2d Cir.
2003). Shortly thereafter, however, Congress amended FOIA to
state that "a complainant has substantially prevailed if the
complainant has obtained relief through either——(I) a judicial
order, or an enforceable written agreement or consent degree; or
(II) a voluntary or unilateral change in position by the agency,
if the complainant's claim in not insubstantial." 5 U.S.C.
§ 552(a)(4)(E)(ii); see also Or. Nat. Desert Ass'n v. Locke, 572
F.3d 610, 614-15 (9th Cir. 2009). Several circuits since have
interpreted the amendment as reinstating the pre-Buckhannon
catalyst theory of recovery in the FOIA context. See First
Amend. Coal. v. U.S. Dept. of Just., 878 F.3d 1119, 1128 (9th
Cir. 2017) (collecting cases). Wisconsin's public records law,
however, has not been similarly amended and does not contain the
"voluntary or unilateral change" language of the amended FOIA
provision.
¶22 The understanding of prevailing party expressed in
Buckhannon is not unique to federal law. It has a long history
in Wisconsin as well. In our earliest laws, numerous statutory
provisions tied the concept of prevailing in an action to
success in a judicial proceeding. E.g., Wis. Stat. ch. 102, § 6
(1849) ("[T]he plaintiff in error on the trial anew shall be the
successful and prevailing party."); Wis. Stat. ch. 109, § 6
14
No. 2019AP96
(1849) ("If the plaintiff in such action prevail therein, he
shall have judgment for double the amount of damages found by
the jury.").9 This was also true when § 19.37(2)(a)'s fee-
shifting provision was enacted in 1982; many Wisconsin statutes
on the books clearly tied a party's prevailing status to success
in some judicial proceeding.10 Our cases reinforced this
understanding. Whiting v. Gould, 1 Wis. 198, 199 (1853)
9See also Wis. Stat. ch. 64, § 21 (1849) ("If . . . it
shall appear to the court, that either the petition or the
objection thereto is unreasonable, said court may, in its
discretion, award costs to the party prevailing, and enforce the
payment thereof."); Wis. Stat. ch. 106, § 29 (1849) ("[T]he
judgment in the action, if the plaintiff prevail, shall be that
the plaintiff recover the possession of the premises . . . .").
E.g., Wis. Stat. § 52.10(6)(c) (1981-82) ("If proceedings
10
have been initiated and the person demanded has prevailed
therein the governor may decline to honor the demand."); Wis.
Stat. § 109.03(6) (1981-82) ("In any [wage claim] proceeding the
court may allow the prevailing party, in addition to all other
costs, a reasonable sum for expenses."); Wis. Stat. § 655.19(1)
(1981-82) ("In the case of a trial . . . the court may award
actual court costs and reasonable attorney fees in excess of
statutory limitations to the prevailing party."); Wis. Stat.
§ 807.01(2) (1981-82) ("If the plaintiff accepts the
offer . . . and prevails upon the trial, either party may file
proof of service of the offer and acceptance and the damages
will be assessed accordingly."); Wis. Stat. § 811.21 (1981-82)
("If the defendant prevails in the action or if the action be
discontinued the damages sustained by him . . . shall be
assessed and he shall have judgment therefore."); Wis. Stat.
§ 823.03 (1981-82) ("[W]hen the plaintiff prevails, he shall, in
addition to judgment for damage and costs, also have judgment
that the nuisance be abated unless the court shall otherwise
order."); Wis. Stat. § 879.33 (1981-82) ("Costs may be allowed
in all appealable contested matters in court to the prevailing
party . . . ."); Wis. Stat. § 879.45(4) (1981-82) ("In all jury
cases costs shall be allowed as a matter of course to the
prevailing party.").
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No. 2019AP96
("Therefore, interlocutory costs . . . must follow the final
adjudication, and may be taxed, by items, by the ultimately
prevailing party . . . .").11 Conversely, we have explained that
a party does not prevail if "there is no final determination on
the merits and the action does not end in judgment for one party
or the other." DeGroff v. Schmude, 71 Wis. 2d 554, 568, 238
N.W.2d 730 (1976).
¶23 When the legislature uses a legal term of art with a
broadly accepted meaning——as it has here with "prevails" in
§ 19.37(2)(a)——we generally assume the legislature meant the
same thing. Mueller v. TL90108, LLC, 2020 WI 7, ¶19, 390
Wis. 2d 34, 938 N.W.2d 566 (noting that terms "with specific and
distinct meaning in our common law" should be given "their
accepted legal meaning"); Wis. Stat. § 990.01(1) ("[T]echnical
words and phrases and others that have a peculiar meaning in the
law shall be construed according to such meaning."). If the
idea that a party could prevail in a lawsuit in the absence of
court action was unknown in Wisconsin when this statute was
adopted, we should not read that interpretation into the statute
See also McCaffrey v. Nolan, 1 Wis. 361, 364 (1853)
11
(noting that following a successful replevin action, an officer
should "deliver the property to the prevailing party in the
suit"); Pietsch v. McCarthy, 159 Wis. 251, 255, 150 N.W. 482(1915) (holding a party was "the prevailing party" after
obtaining a reversal on appeal); Farmers Grain Exch., Inc. v.
Crull, 50 Wis. 2d 161, 164, 183 N.W.2d 41 (1971) (using the term
"prevailing party" juxtaposed against a "losing party" that
"attempts to relieve itself of a judgment").
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No. 2019AP96
now given the absence of any evidence that it was understood to
have that meaning when enacted.
¶24 Buckhannon's interpretation comports with Wisconsin
law. A causation or catalyst theory is not a comfortable fit
with statutory text that allows recovery of attorney's fees "if
the requester prevails in whole or in substantial part in any
action." Wis. Stat. § 19.37(2)(a). The better course is to
follow the United States Supreme Court's lead and return to a
textually-rooted understanding of when a party prevails in a
lawsuit. Absent a judicially sanctioned change in the parties'
legal relationship, attorney's fees are not recoverable under
§ 19.37(2)(a).
3. Friends Is Not Entitled to Attorney's Fees
¶25 Previously, under the causal-nexus test, the court of
appeals has held that although a mandamus action under Wis.
Stat. § 19.37(1) becomes moot when the records custodian
provides the requested records, the question of attorney's fees
remains live and can be litigated. See Racine I, 129 Wis. 2d at
324-25. Without a causation-based theory governing the meaning
of prevailing party under the statute, however, it is unclear
whether voluntary compliance following the filing of a lawsuit
could still allow a requester to pursue fees. Cf. Bjordal v.
Town Bd. of Town of Delavan, 230 Wis. 543, 545-46, 284 N.W. 534(1939); Buckhannon, 532 U.S. at 609. We reserve this question
for another day. Even if attorney's fees may be awarded after
the voluntary production of records, the City here did not
17
No. 2019AP96
violate the law, as explained below. Friends therefore would
not be entitled to any judicial relief——that is, it would not
prevail in whole or substantial part——even if fees are available
in this context. Accordingly, Friends is not entitled to
attorney's fees either way.
B. The Draft Contract Was Properly Withheld
¶26 To explain why the City properly withheld the draft
contract, we begin by discussing the general principles which
animate the public records law.
1. Public Records Law General Principles
¶27 Wisconsin's public records law begins with a strong
declaration of public policy which provides in part, "The denial
of public access generally is contrary to the public interest,
and only in an exceptional case may access be denied." Wis.
Stat. § 19.31. In light of this policy, "Except as otherwise
provided by law, any requestor has a right to inspect any
record."12 Wis. Stat. § 19.35(1)(a). Therefore, once a legal
custodian of a record receives a request, the custodian "shall,
as soon as practicable and without delay, either fill the
request or notify the requester of the authority's determination
"Requester" and "Record" are statutorily defined terms in
12
Wis. Stat. §§ 19.32-19.39. § 19.32(2), (3). The City does not
argue that the draft contract fails to meet the definition of a
record as defined in § 19.32(2).
18
No. 2019AP96
to deny the request in whole or in part and the reasons
therefor."13 § 19.35(4)(a).
¶28 When responding to the request, the custodian must
first determine if there is a record or records that are
responsive to the request. J. Times, 362 Wis. 2d 577, ¶55. If
a requested record exists, and if no other statute either
requires access or exempts the record,14 the custodian must
conduct the balancing test. See Wis. Stat. § 19.35(1)(a)
("Substantive common law principles construing the right to
inspect, copy or receive copies of records shall remain in
effect."). The balancing test is a common-law limitation "that
the inspection [of a record] not be permitted if there is a
specific showing that the public interest would be adversely
affected." State ex rel. J. Co. v. Cnty. Ct. for Racine Cnty.,
43 Wis. 2d 297, 306, 168 N.W.2d 836 (1969). If, after
conducting the balancing test, the records custodian determines
the records should be withheld, the custodian must, with
specificity, provide reasons "for withholding the
records . . . sufficient to outweigh the strong public policy
favoring disclosure."15 Portage Daily Reg. v. Columbia Cnty.
The legal custodians of various records are defined in
13
Wis. Stat. § 19.33.
14 See, e.g., Wis. Stat. §§ 19.36, 346.70(4)(f).
This denial must be in writing (if the request was in
15
writing) and contain "the reasons for denying the written
request." Wis. Stat. § 19.35(4)(b). If denied for public
policy reasons, the statement must be specific and include more
than "a mere citation to the exemption statute." Chvala v.
Bubolz, 204 Wis. 2d 82, 86-87, 552 N.W.2d 892 (Ct. App. 1996).
19
No. 2019AP96
Sheriff's Dept., 2008 WI App 30, ¶12, 308 Wis. 2d 357, 746
N.W.2d 525.
¶29 As previously discussed, if a record is withheld in
whole or in part, or its release delayed, an action for mandamus
can be brought to compel the record's release. Wis. Stat.
§ 19.37(1). In reviewing a mandamus action, we "examine the
sufficiency of the custodian's stated reasons for denying the
request." Osborn v. Bd. of Regents of Univ. of Wis. Sys., 2002
WI 83, ¶16, 254 Wis. 2d 266, 647 N.W.2d 158.
2. The Record Was Not Unlawfully Withheld
¶30 The City's decision to withhold the draft contract was
based on the balancing test.16 Although record custodians are
obligated to conduct their own analysis, we conduct the public
policy analysis the balancing test calls for independently.
Wis. Newspress, Inc. v. Sch. Dist. of Sheboygan Falls, 199
Wis. 2d 768, 784, 546 N.W.2d 143 (1996).
¶31 The City cited Wis. Stat. §§ 19.35(1)(a) and
19.85(1)(e) as public policy reasons supporting its decision to
withhold the record. Section 19.35(1)(a) is not itself a
statutory exception to disclosure. Rather, it explains that the
policies behind the open meetings exemptions in § 19.85 are
indicative of the public policy interests that might exempt a
There is no dispute that the City's written response
16
denying access to the contract was sufficiently specific. The
City referenced the pertinent statutes and public policy
interests at play, and expressly weighed those interests against
the public interest in disclosure.
20
No. 2019AP96
record from disclosure under the balancing test.17 Section
19.85(1)(e), in turn, states: "Deliberating or negotiating the
purchasing of public properties, the investing of public funds,
or conducting other specified public business, whenever
competitive or bargaining reasons require a closed session." In
other words, these types of issues may allow governmental bodies
to meet in closed session, and therefore reflect strong public
policy interests in nondisclosure that could also serve as a
basis to withhold records.
¶32 Invoking the language in Wis. Stat. § 19.85(1)(e), the
City explained that "the contract [was] still in negotiation
with Big Top." Withholding disclosure was important to "protect
the City's negotiation and bargaining position" and "the City's
ability to negotiate the best deal for the taxpayers."
Disclosure "would substantially diminish the City's ability to
negotiate different terms the Council may desire for the benefit
[of] the City" and "compromise[]" "the City's negotiating and
bargaining position." The City further explained that the
"draft contract is subject to review, revision, and approval of
17 In relevant part, Wis. Stat. § 19.35(1)(a) provides:
The exemptions to the requirement of a governmental
body to meet in open session under [Wis. Stat.
§] 19.85 are indicative of public policy, but may be
used as grounds for denying public access to a record
only if the authority or legal custodian under [Wis.
Stat. §] 19.33 makes a specific demonstration that
there is a need to restrict public access at the time
that the request to inspect or copy the record is
made.
21
No. 2019AP96
the Common Council before it can be finalized, and the Common
Council [has] not yet had an opportunity to review and discuss
the draft contract." The City indicated it would disclose the
draft contract after the Common Council had taken action.
¶33 The circuit court correctly concluded the reasons set
forth in the City's letter supported temporarily withholding the
draft contract. Without question, the public interest in
matters of municipal spending and development is significant.
There is good reason for the public to know how government
spends public money. This ensures citizen involvement and
accountability for public funds. However, contract negotiation
often requires a different calculus. Wisconsin Stat.
§ 19.85(1)(e) identifies the public interest in protecting a
government's "competitive or bargaining" position in adversarial
negotiation. It is not uncommon for the state or local
municipalities to negotiate certain contracts in private,
especially in competitive business environments. See, e.g.,
State ex rel. Citizens for Responsible Dev. v. City of Milton,
2007 WI App 114, ¶19, 300 Wis. 2d 649, 731 N.W.2d 640("Developing a negotiation strategy or deciding on a price to
offer for a piece of land is an example of what is contemplated
by 'whenever competitive or bargaining reasons require a closed
session.'" (quoting § 19.85(1)(e))).
¶34 As illustrated here, the City communicated its belief
that it was more likely to secure a better deal if its
negotiations were not revealed early. The City was in talks
with both Big Top Baseball and Northwoods League to bring a
22
No. 2019AP96
baseball team to the City. Revealing its hand by disclosing the
terms of a draft contract with Big Top Baseball could have
negatively impacted the City's ability to bring a baseball team
to the City on favorable terms. While no third-party competitor
for a contract with Big Top Baseball or the Northwoods League
was identified, this does not diminish the competitive nature of
the negotiation. In a competitive bilateral negotiation,
confidentiality is often critical to advancing a negotiation
strategy. An identified third party may increase competition,
but it is not a prerequisite for a competitive negotiation.
¶35 These negotiations were by no means a secret. In
fact, in response to the records request, the City turned over
other "correspondence with Big Top Baseball or Northwoods League
Baseball related to a baseball project in Frame Park during 5-1-
16 to the present time." The only responsive document the City
withheld was the draft contract; every other responsive document
was provided in a timely manner.
¶36 Moreover, while City employees were on-the-ground
operators in a competitive negotiation with Big Top Baseball, it
was ultimately the Common Council that bore the responsibility
for the contract. "The general rule of municipal law is that
only a duly authorized officer, governing body, or board can act
on behalf of a city, and a valid contract with the municipality
cannot be created otherwise." Town of Brockway v. City of Black
River Falls, 2005 WI App 174, ¶24, 285 Wis. 2d 708, 702
N.W.2d 418. Here, the City explained to Friends that once the
Common Council had an opportunity to consider the draft
23
No. 2019AP96
contract, the balance of interests would shift. The City
therefore said it would disclose the draft contract to Friends
after the Common Council took action on it. In this context, it
was reasonable to wait for consultation with the Common Council
before revealing the current status of the negotiations to
others.
¶37 Under these circumstances, the City's interest in
withholding the draft contract to protect its bargaining
position until the Common Council had the opportunity to
consider the contract outweighed the public's interest in
immediate release. The City properly applied the balancing test
and did not violate the public records law by temporarily
withholding the draft contract, nor did it delay release of the
contract unreasonably. Accordingly, regardless of whether the
issue of attorney's fees is moot, Friends is not entitled to
attorney's fees because it did not prevail in whole or in
substantial part on the merits of its mandamus action.
III. CONCLUSION
¶38 When ascertaining if a records requester is entitled
attorney's fees as a part of a mandamus action under Wis. Stat.
§ 19.37(1), a party must "prevail[] in whole or in substantial
part," which means the party must obtain a judicially sanctioned
change in the parties' legal relationship. § 19.37(2)(a). With
respect to the mandamus action before us, the City properly
applied the balancing test when it decided to temporarily
withhold access to the draft contract in response to Friends'
24
No. 2019AP96
open records request. Accordingly, regardless of whether
Friends may pursue fees after voluntary delivery of the
requested record, Friends cannot prevail in its mandamus action
and is not entitled to attorney's fees.
By the Court.—The decision of the court of appeals is
reversed.
25
No. 2019ap96.rgb
¶39 REBECCA GRASSL BRADLEY, J. (concurring). "What a
metamorphosis would be produced in the code of law if all its
ancient phraseology were to be taken in its modern sense."
Letter from James Madison, to Henry Lee (June 25, 1824).1 The
judiciary risks destabilizing the law and usurping the
legislature's law-making power when it fails to give "legal
terms of art" in a statute their "accepted legal meaning." See
Bank Mut. v. S.J. Boyer Const., Inc., 2010 WI 74, ¶23, 326
Wis. 2d 521, 785 N.W.2d 462 (quoting Estate of Matteson v.
Matteson, 2008 WI 48, ¶22, 309 Wis. 2d 311, 749 N.W.2d 557). In
a series of cases interpreting the public records law, the court
of appeals modified the accepted legal meaning of a "prevailing
party" in a court proceeding. That interpretive error requires
correction.
¶40 Wisconsin Stat. § 19.37(2)(a) (2017–18)2 employs a
legal term of art. It states, in relevant part: "[T]he court
shall award reasonable attorney fees . . . to the requester if
the requester prevails in whole or in substantial part in any
action filed under sub. (1) relating to access to a record or
part of a record under s. 19.35 (1)(a)." § 19.37(2)(a). A
party prevails in an action, in whole or in substantial part,
only if it obtains favorable relief from a court. E.g.,
Prevailing party, Black's Law Dictionary (11th ed. 2019).
1 https://www.loc.gov/resource/mjm.20_0907_0909/?sp=2&st=tex
t.
All subsequent references to the Wisconsin Statutes are to
2
the 2017–18 version unless otherwise indicated.
1
No. 2019ap96.rgb
¶41 The court of appeals has repeatedly failed to give the
legal term of art in § 19.37(2)(a) its accepted legal meaning.
In at least six cases,3 the court of appeals has instead endorsed
the now-defunct "catalyst theory," under which a party may be
deemed to have prevailed——even in the absence of favorable
relief from a court——if the lawsuit achieved at least some of
the party's desired results by causing a voluntary change in the
defendant's conduct.4 See generally Buckhannon Bd. & Care Home,
Inc. v. W. Va. Dep't of Health & Hum. Res., 532 U.S. 598, 601
(2001). This line of court of appeals precedent (the "Racine
Education Association I Line") relied on federal decisions that
have been abrogated. More than 20 years ago, the United States
Supreme Court decisively rejected the catalyst theory in
Buckhannon, 532 U.S. at 602–05. In an even greater departure
from the statutory text than the reasoning adopted in the Racine
3 WTMJ, Inc. v. Sullivan, 204 Wis. 2d 452, 555 N.W.2d 140(Ct. App. 1996); Eau Claire Press Co. v. Gordon, 176
Wis. 2d 154, 499 N.W.2d 918 (Ct. App. 1993); State ex rel. Eau
Claire Leader-Telegram v. Barrett, 148 Wis. 2d 769, 436
N.W.2d 885 (Ct. App. 1989); Racine Educ. Ass'n v. Bd. of Educ.
for Racine Unified Sch. Dist., 145 Wis. 2d 518, 427 N.W.2d 414(Ct. App. 1988); State ex rel. Vaughan v. Faust, 143
Wis. 2d 868, 422 N.W.2d 898 (Ct. App. 1988); Racine Educ. Ass'n
v. Bd. of Educ. for Racine Unified Sch. Dist., 129 Wis. 2d 319,
328, 385 N.W.2d 510 (Ct. App. 1986).
4 As the majority/lead opinion notes, "[w]e have mentioned
the causation test before;" however, "[w]e have not previously
been presented a question squarely addressing the causation test
or its contours." Majority/Lead op., ¶18 n.7. See generally J.
Times v. City of Racine Bd. of Police & Fire Comm'r, 2015 WI 56,
¶57, 362 Wis. 2d 577, 866 N.W.2d 563.
2
No. 2019ap96.rgb
Education Association I Line, in two cases,5 (the "Young/Portage
Cases") the court of appeals arguably abandoned the catalyst
theory. According to the Young/Portage Cases, if a custodian
improperly invokes an exception to the public records law and
provides the requested record after the filing of a mandamus
action, the requester is deemed to have prevailed and is
entitled to attorney fees.
¶42 In this case, the court of appeals6 erred in applying
the Young/Portage Cases, embracing a purposivist and
consequentialist approach to statutory interpretation, in
derogation of the textualist approach Wisconsin courts are bound
to follow. See State ex rel. Kalal v. Cir. Ct. for Dane Cnty.,
2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110.7 Because these
decisions are objectively wrong, we must overturn them in
fulfilling our duty to properly interpret the law. See Wenke v.
Gehl Co., 2004 WI 103, ¶21, 274 Wis. 2d 220, 682 N.W.2d 405 ("We
are not required to adhere to interpretations of statutes that
are objectively wrong." (internal citations omitted)).
5See State ex rel. Young v. Shaw, 165 Wis. 2d 276, 292–93,
477 N.W.2d 340 (Ct. App. 1991); Portage Daily Reg. v. Columbia
Cnty. Sheriff's Dep't, 2008 WI App 30, ¶8, 308 Wis. 2d 357, 746
N.W.2d 525.
6Friends of Frame Park, U.A. v. City of Waukesha, 2020 WI
App 61, 394 Wis. 2d 387, 950 N.W.2d 831.
7The same results-driven rationalizations permeate Justice
Jill Karofsky's dissent, which does not even mention Kalal much
less apply it.
3
No. 2019ap96.rgb
¶43 I write separately because the majority/lead opinion8
does not acknowledge this case is moot, obviating any need to
address the merits. All records were given to the requester
before the circuit court ever rendered a decision. See Racine
Educ. Ass'n v. Bd. of Educ. for Racine Unified Sch. Dist., 129
Wis. 2d 319, 322, 385 N.W.2d 510 (Ct. App. 1986) (hereinafter
"Racine Educ. Ass'n I"). A writ of mandamus under Wis. Stat.
§ 19.37(1) has a singular purpose: "to compel performance of a
particular act by . . . a governmental officer, usu. to correct
a prior action or failure to act." Mandamus, Black's Law
Dictionary. In this case, the act requested had already been
performed, so neither the circuit court nor the court of appeals
nor this court needed to address the merits of Friends' public
records claim.9 Because this case is moot, we need not consider
whether Friends is entitled to relief. Without favorable
relief, Friends cannot recover attorney fees. Because the
majority/lead opinion reaches the merits of this case without
any explanation of what possible favorable relief could be
granted, I respectfully concur.
8Wis. Sup. Ct. IOP III.G.5 ("If . . . the opinion
originally circulated as the majority opinion does not garner
the vote of a majority of the court, it shall be referred to in
separate writings as the 'lead opinion[.]'").
9See Portage County v. J.W.K., 2019 WI 54, ¶12, 386
Wis. 2d 672, 927 N.W.2d 509 ("Appellate courts generally decline
to reach moot issues, and if all issues on appeal are moot, the
appeal should be dismissed. We may, however, choose to address
moot issues in 'exceptional or compelling circumstances.'"
(citations omitted)).
4
No. 2019ap96.rgb
I. BACKGROUND
A. The Public Records Request
¶44 Friends was concerned about contract negotiations
between the City of Waukesha ("City") and Big Top Baseball ("Big
Top") to re-purpose Frame Park into a for-profit baseball
stadium. Friends filed a public records request with the City
in October 2017. The City disclosed some requested records, but
withheld drafts of a proposed contract between the City and Big
Top. In a letter to Friends, the City Attorney explained the
City temporarily withheld the draft contracts because: (1) They
had not yet been reviewed by the City's Common Council; (2)
under Wis. Stat. § 19.85(1)(e), the Common Council could meet in
closed session to review them; and (3) therefore, an exception
to the public records laws, Wis. Stat. § 19.35(1)(a), applied.
The letter stated: "You will get a copy of the contract after
the Common Council has taken action on it."
B. The Mandamus Action
¶45 Friends learned the City Council might review the
draft contracts at a meeting on December 19, 2017. The day
before the meeting, Friends filed a mandamus action under Wis.
Stat. § 19.37(1)(a) to compel disclosure of the draft contracts.
In Friends' own words, it needed "to preserve its remedies"——
i.e., an award of statutory attorney fees. The day after the
meeting, the City Attorney emailed Friends copies of the draft
contracts, explaining they were "being released now because
there is no longer any need to protect the City's negotiating
and bargaining position."
5
No. 2019ap96.rgb
¶46 The City moved for summary judgment, arguing the
action was moot because it had turned over all responsive
records——including the draft contracts. Friends countered that
a live controversy existed regarding whether it could be awarded
attorney fees. It argued: "The issue at stake here would never
be litigated if a City could withhold records and then produce
them after the court action was filed. The issue at stake is
whether the exception invoked by the City was applicable under
the law and thus validly invoked." Specifically, Friends argued
the City incorrectly invoked Wis. Stat. § 19.85(1)(e) to delay
releasing the draft contracts. Friends also seemed to assert
that its lawsuit somehow caused the release of the draft
contracts.
¶47 The circuit court granted the City's summary judgment
motion.10 It concluded Friends did not prevail in the action and
therefore was not entitled to an award of attorney fees under
Wis. Stat. § 19.37(2)(a) because the action was not a cause of
the release of the draft contracts. In its written order, the
circuit court explained: "The Plaintiff has not provided any
evidence indicating that . . . records were disclosed by the
Defendant in response to Plaintiff's commencement of this
litigation." Instead, the circuit court found the City released
The Honorable Michael O. Bohren, Waukesha County Circuit
10
Court, presided.
6
No. 2019ap96.rgb
the draft contracts because the exception on which it relied no
longer applied.11
C. The Appeal
¶48 The court of appeals reversed the circuit court and
remanded with directions for the circuit court to determine the
amount of attorney fees to be awarded.12 It began by noting Wis.
Stat. § 19.35(4)(a) instructs custodians to comply with requests
"as soon as practicable and without delay."13 It then concluded,
"[a] plaintiff with standing to seek a withheld record in a
mandamus action should generally be considered to have
'substantially prevailed' where it demonstrates a violation of
this statute; that is, an unreasonable delay caused by the
improper reliance on an exception."14
¶49 The court of appeals' reasoning seemed to rest on a
desire to avoid what that court considered to be the
consequences of bad public policy because interpreting the
statute according to its text might encourage custodians to
engage in bad-faith gamesmanship.15 Specifically, a custodian
might withhold requested records——perhaps in bad faith——but if
litigation ensues, only then turn over a requested record.16
The circuit court also concluded the City had properly
11
invoked Wis. Stat. § 19.85(1)(e) to withhold the draft
contracts.
12 Friends of Frame Park, 394 Wis. 2d 387.
13 Id., ¶4 (quoting Wis. Stat. § 19.35(4)(a)).
14 Id.15 See id., ¶¶28–30.
16 Id.7
No. 2019ap96.rgb
Instead of analyzing the statutory text, the court opted to
incentivize "voluntary compliance" by increasing the risk
custodians face if an action is brought.17
¶50 To reach its conclusion, the court of appeals
endeavored to "reconcile what, at least superficially, appears
to be inconsistent language from prior decisions addressing how
and whether a public records plaintiff can recover attorney fees
following voluntary release during litigation."18 The Racine
Education Association I Line unambiguously requires the
requester to show the action was a cause of the release of the
record. E.g., WTMJ, Inc. v. Sullivan, 204 Wis. 2d 452, 458, 555
N.W.2d 140 (Ct. App. 1996) (quoting State ex rel. Vaughan v.
Faust, 143 Wis. 2d 868, 871, 422 N.W.2d 898 (Ct. App. 1988)).
In the Young/Portage Cases, however, the court of appeals
arguably eliminated the element of causation for at least a
subset of disputes in which the custodian withheld the record in
reliance on an exception rather than due to "unavoidable
delays." See State ex rel. Young, 165 Wis. 2d 276, 292–93, 477
N.W.2d 340 (Ct. App. 1991); see also Portage Daily Reg. v.
Columbia Cnty. Sheriff's Dep't, 2008 WI App 30, ¶8, 308
Wis. 2d 357, 746 N.W.2d 525. The Young/Portage Cases focused on
whether the custodian was, in fact, entitled to withhold the
record rather than what caused its release.
17 Id., ¶29 (quoting Racine Educ. Ass'n I, 129 Wis. 2d at
328).
18 Id., ¶4.
8
No. 2019ap96.rgb
¶51 In this case, the court of appeals applied the
Young/Portage Cases.19 The court also relied heavily on Church
of Scientology of California v. United States Postal Services,
700 F.2d 486 (9th Cir. 1983), abrogated in part on other grounds
as recognized by First Amendment Coalition v. United States
Department of Justice, 878 F.3d 1119, 1127 (9th Cir. 2017) (lead
opinion). Under that case, three factors determine whether a
requester prevailed: "(1) when the documents were released; and
(2) what actually triggered the documents' release . . . ; and
(3) whether the . . . [requester] was entitled to the documents
at an earlier time in view of the fact that the
exemption . . . [no longer applied]." Id. at 492. Our court of
appeals deemed this three-factor test "a more flexible inquiry,
one that permits consideration of factors other than
causation."20
¶52 Notably, the court of appeals seemed to prioritize the
third factor:
The third factor——whether the requester was entitled
to the record at an earlier time——should control where
a delay in a voluntary release can be attributed to
the authority's reliance on a public records
exception. Where that is the case the trial court
must scrutinize the claimed exception, rather than
whether the lawsuit caused the release, to determine
whether a requesting party has prevailed[.21]
See id., ¶¶26, 32 (quoting Portage Daily Reg.,
19 308
Wis. 2d 357, ¶8 and citing Young, 165 Wis. 2d at 286–91).
20 Id., ¶32.
21 Id., ¶33.
9
No. 2019ap96.rgb
Applying this third factor——and seemingly only this factor——the
court of appeals concluded:
Here, there can be no question that the City withheld
the draft contract on the claimed basis that a public
records exception required nondisclosure; it later
released the contract because it believed there was no
longer a "competitive or bargaining" rationale to
continue withholding it. There also is no doubt that
the delay in disclosing this document . . . was not
insignificant and the triggering event (according to
the City) was the expiration of the exception on which
nondisclosure was based. . . . Friends' claim for
attorney's fees must hinge on whether the City
appropriately invoked WIS. STAT. § 19.85(1)(e) to
withhold disclosure until after the December 19 common
council meeting.[22]
The court of appeals then turned to whether the exception was
properly invoked, concluding Friends——not the City——was entitled
to summary judgment, even though Friends never moved for summary
judgment.23 Accordingly, it reversed the circuit court and
remanded the case, directing the circuit court to calculate the
appropriate award of attorney fees to Friends. The
majority/lead opinion concludes the court of appeals erroneously
held the exception codified in Wis. Stat. § 19.85(1)(e) did not
apply. The City filed a petition for review, which we granted.
II. ANALYSIS
A. Standard of Review
¶53 We review a grant of summary judgment independently.
Kemper Indep. Ins. v. Islami, 2021 WI 53, ¶13, 397 Wis. 2d 394,
959 N.W.2d 912 (quoting Talley v. Mustafa, 2018 WI 47, ¶12, 381
22 Id., ¶34
23 Id., ¶51.
10
No. 2019ap96.rgb
Wis. 2d 393, 911 N.W.2d 55). Summary judgment is appropriate if
no material facts are at issue and a moving party is entitled to
judgment as a matter of law. See Wis. Stat. § 802.08(2) (2019–
20). Under Wis. Stat. § 802.08(6) (2019–20), "[i]f it shall
appear to the court that the party against whom a motion for
summary judgment is asserted is entitled to a summary judgment,
the summary judgment may be awarded to such party even though
the party has not moved therefor."
¶54 Whether a requester prevailed in an action despite the
absence of favorable court relief requires us to interpret Wis.
Stat. § 19.37(2)(a). Statutory interpretation presents a
question of law, which we review independently. T.L.E.-C. v.
S.E., 2021 WI 56, ¶13, 397 Wis. 2d 462, 960 N.W.2d 391 (citing
State v. Stephenson, 2020 WI 92, ¶18, 394 Wis. 2d 703, 951
N.W.2d 819); see also Zellner v. Cedarburg Sch. Dist., 2007 WI
53, ¶17, 300 Wis. 2d 290, 731 N.W.2d 240 (citation omitted).
B. Stare Decisis & Court of Appeals Precedent
¶55 The Latin term "stare decisis" means "to stand by
things decided." Stare decisis, Black's Law Dictionary.
Sometimes called "[t]he doctrine of precedent," stare decisis
beseeches judges to "follow earlier judicial decisions when the
same points arise again in litigation." Id.¶56 Stare decisis encompasses two related but distinct
concepts——vertical stare decisis and horizontal stare decisis:
Vertical stare decisis applies between higher and
lower courts in a single system——for example, the
Wisconsin Supreme Court and the Wisconsin court of
appeals and circuit courts . . . . The doctrine
requires lower courts to faithfully apply the
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decisions of higher courts in their system——even if
the lower courts believe those decisions erroneous——
unless those higher courts have overturned them. This
doctrine, that higher courts bind lower courts, is
absolute and near-universally accepted . . . .
Horizontal stare decisis . . . operates within the
same court, requiring it to adhere to its own prior
decisions . . . .
Daniel R. Suhr & Kevin LeRoy, The Past and the Present: Stare
Decisis in Wisconsin Law, 102 Marq. L. Rev. 839, 844-45 (2019).
Compare Vertical stare decisis, Black's Law Dictionary ("The
doctrine that a court must strictly follow the decisions handed
down by higher courts within the same jurisdiction."), with
Horizontal stare decisis, Black's Law Dictionary ("The doctrine
that a court, esp. an appellate court, must adhere to its own
prior decisions, unless it finds compelling reasons to overrule
itself.").
¶57 We have recognized a third form of stare decisis,
which may be unique to Wisconsin: "the doctrine of stare
decisis applies to published court of appeals opinions and
requires this court 'to follow court of appeals precedent unless
a compelling reason exists to overrule it.'" Manitowoc County
v. Samuel J.H., 2013 WI 68, ¶5 n.2, 349 Wis. 2d 202, 833
N.W.2d 109 (quoting Wenke, 274 Wis. 2d 220, ¶21); see also Wis.
Stat. § 752.41(2) (2019–20) ("Officially published opinions of
the court of appeals shall have statewide precedential
effect.").
¶58 This third type of stare decisis is not recognized in
other jurisdictions in America. See Bryan A. Garner et al., The
Law of Judicial Precedent 255 (2016) ("Inferior-court decisions
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have less precedential worth because courts superior in rank
aren't bound by them and may overrule, vacate, reverse, or
depublish them."); H. Campbell Black, The Principle of Stare
Decisis, 34 Am. L. Reg. 745, 751 (1886) ("The opinion of a Nisi
Prius court, though, perhaps, admissible as persuasive evidence
of the principle contended for, is of course, not binding as
precedent upon the appellate court[.]"). But see John Cleland
Wells, A Treatise on the Doctrine of Res Adjudicata and Stare
Decisis 553 (1878) ("Moreover, the decisions of inferior courts
are binding upon superior courts, sometimes, although, perhaps,
more on the principle of res adjudicata which relates chiefly to
fact, than on that of stare decisis which relates to law.").
¶59 This third form of stare decisis is "somewhat
paradoxical[.]" Suhr & LeRoy, Stare Decisis in Wisconsin Law, at
844 n.25. Article VII of the Wisconsin Constitution
unequivocally makes this court "a supreme judicial tribunal over
the whole state[.]" Petition of Heil, 230 Wis. 428, 436, 284
N.W. 42 (1938) (per curiam) (quoting Attorney General v. Chi. &
N.W. Ry., 35 Wis. 425, 518 (1874)). The court of appeals was
created in 1978 by constitutional amendment so that this court
could focus on its law-developing function. Matthew E. Garbys,
Comment, A Shift in the Bottleneck: The Appellate Caseload
Problem Twenty Years After the Creation of the Wisconsin Court
of Appeals, 1998 Wis. L. Rev. 1547, 1548. A 1973 report to the
governor explained:
In the rush to cope with its increasing calendar, the
Supreme Court must invariably sacrifice quality for
quantity. Increasing appellate backlogs necessarily
produce a dilution in craftsmanship. . . . The
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Supreme Court is cast in the role of a "case-deciding
court"——one which merely reacts to individual cases
and thus slights its law-stating function.
. . . .
The size of this caseload can only have a detrimental
effect on the quality of the Supreme Court's work.
Cases involving major questions of substantive law may
be decided on the basis of superficial issues.
Citizens Study Comm. on Jud. Org., Report to Governor Patrick J.
Lucey 78 (1973) (on file at the David T. Prosser Jr. State Law
Library).
¶60 Deference to decisions of the court of appeals
conflicts with this court's constitutional role as the "final
arbiter" on questions of Wisconsin law. See Tetra Tech EC, Inc.
v. Wis. Dep't of Revenue, 2018 WI 75, ¶78, 382 Wis. 2d 496, 914
N.W.2d 21 (lead opinion) (explaining this court is the "final
arbiter" on questions of state law). By lending court of
appeals decisions stare decisis effect, we give the court of
appeals power that is inconsistent with the constitutional
structure of the Wisconsin judiciary. See Cook v. Cook, 208
Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (noting this court has
been "designated by the constitution and the legislature as a
law declaring court" (quoting State ex rel. La Crosse Tribune v.
Cir. Ct. for La Crosse Cnty., 115 Wis. 2d 220, 229–30, 340
N.W.2d 460 (1983))); State ex rel. Wis. Senate v. Thompson, 144
Wis. 2d 429, 436, 424 N.W.2d 385 (1988) ("[I]t is this court's
function to develop and clarify the law." (citations omitted));
State v. Hermann, 2015 WI 84, ¶154, 364 Wis. 2d 336, 867
N.W.2d 772 (Ziegler, J., concurring) ("Unlike a circuit court or
the court of appeals, the supreme court serves a law development
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purpose[.]"); Sussex Tool & Supply, Inc. v. Mainline Sewer &
Water, Inc., 231 Wis. 2d 404, 416 n.4, 605 N.W.2d 620 (Ct. App.
1999) ("We are primarily an error-correcting court, not a law-
declaring court." (citation omitted)); State v. Grawien, 123
Wis. 2d 428, 432, 367 N.W.2d 816 (Ct. App. 1985) ("The Wisconsin
Supreme Court, unlike the court of appeals, has been designated
by the constitution and the legislature as a law-declaring
court. While the court of appeals also serves a law-declaring
function, such pronouncements should not occur in cases of great
moment." (internal citation omitted)). We must not "slight[]"
our "law-stating function"——the precise problem the people of
this state sought to prevent by creating the court of appeals.
See Citizens Study Comm. on Jud. Org., Report to Governor
Patrick J. Lucey, at 78.
¶61 The heavy docket of the court of appeals renders that
court better suited for deciding cases in accordance with
established precedent rather than formulating new precedent
itself:
One reason why lower-court decisions are often
unsuited to establish precedent is the nature of the
decisional process itself. Generally, lower-court
decisions are shorter than published opinions of
higher courts and contain less reasoning because those
courts' primary job is to rule on cases then pending,
not shape the law. . . . In states that provide a
right of first appeal, intermediate appellate courts
may . . . have a heavy caseload. So intermediate
appellate courts . . . don't have as much time or as
many resources to devote to resolving a case as high
courts with discretionary jurisdiction. The press of
judicial business may result in opinions that aren't
so thoroughly researched and closely reasoned. They
may prove therefore less valuable as precedent.
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Garner et al., The Law of Judicial Precedent, at 256–57. In
Wisconsin, litigants have a constitutional right to a direct
appeal, and the legislature has designated the court of appeals
as the institution responsible for effectuating that right. See
State v. Pope, 2019 WI 106, ¶21, 389 Wis. 2d 390, 936 N.W.2d 606(citing Wis. Const. art. I, § 21(1) and Wis. Stat. § 808.02).
Approximately 2059 cases were filed in the court of appeals last
year.24 Each court of appeals judge was responsible for
deciding, on average, 132 cases.25 In contrast, last term this
court resolved 97 cases——including attorney disciplinary cases,
judicial disciplinary cases, and bar admissions cases.26
¶62 Perhaps implicitly recognizing that giving stare
decisis effect to court of appeals decisions is inconsistent
with our constitutional structure, we have overturned court of
appeals decisions without even mentioning stare decisis. See,
e.g., Waukesha County v. E.J.W., 2021 WI 85, ¶¶37–38, 399
Wis. 2d 471, 966 N.W.2d 590 (overturning parts of Marathon
County v. R.J.O., 2020 WI App 20, 392 Wis. 2d 157, 943
N.W.2d 898 without any discussion of stare decisis). Twice this
term, we have suggested court of appeals decisions are entitled
to significantly less weight than our own decisions. See State
24 Court of Appeals Annual Report 1 (2020),
https://www.wicourts.gov/ca/DisplayDocument.pdf?content=pdf&seqN
o=391847.
25 Id. at 2.
26 Wisconsin Supreme Court Annual Statistical Report 1
(October 6, 2021),
https://www.wicourts.gov/sc/DisplayDocument.pdf?content=pdf&seqN
o=439770.
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v. Yakich, 2022 WI 8, ¶31, 400 Wis. 2d 549, 970 N.W.2d 12("While respecting court of appeals precedent is an important
consideration, it is not determinative." (quoting State v.
Lira, 2021 WI 81, ¶45, 399 Wis. 2d 419, 966 N.W.2d 605)); Lira,
399 Wis. 2d 419, ¶45 ("This court has never applied the five
factors commonly used in a decision to overturn supreme court
caselaw to override an interpretation derived solely from the
court of appeals. Further, we have shown a repeated willingness
to interpret and apply the law correctly, irrespective of a
court of appeals decision that came to a different conclusion."
(internal citation omitted)); see also Suhr & LeRoy, Stare
Decisis in Wisconsin, at 844 n.25 ("In practice, the Wisconsin
Supreme Court likely grants less stare decisis effect to
opinions of the Court of Appeals than of its own." (citation
omitted)).
¶63 This court's practice, if not always its words,
confirms that published court of appeals decisions are not
entitled to stare decisis effect. These decisions are
precedential; lower courts throughout the state must follow
them. The supreme court, however, is not so bound. Referencing
stare decisis in the context of court of appeals precedent has
created confusion with no benefit. We should take this
opportunity to unequivocally correct this court's misspeak in
Manitowoc County.
¶64 Regardless, stare decisis is a judicially-created
policy and "not an inexorable command;" for this reason, we will
overturn precedent if it is objectively wrong. Johnson
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Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶97,
264 Wis. 2d 60, 665 N.W.2d 257 (citing Hohn v. United States,
524 U.S. 236, 251 (1998)); see also Smith v. Allwright, 321 U.S.
649, 665 (1944) ("[W]hen convinced of former error, this Court
has never felt constrained to follow precedent.").
Historically, the judiciary has prioritized declaring the law
correctly over perpetuating errors in judgment in the name of
stability in the law. "We cannot mistake 'the law' for 'the
opinion of the judge' because "the judge may mistake the law.'"
Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶259, 400
Wis. 2d 626, 971 N.W.2d 402 (Rebecca Grassl Bradley, J.,
dissenting) (quoting Introduction, William Blackstone,
Commentaries *71)). Because judges are not infallible, their
decisions must not be insulated from later review:
A Court is not bound to give the like judgment, which
had been given by a former Court, unless they are of
opinion that the first judgment was according to law;
for any Court may err; and if a Judge conceives, that
a judgment given by a former Court is erroneous, he
ought not in conscience to give the like judgment, he
being sworn to judge according to law. Acting
otherwise would have this consequence; because one man
has been wronged by a judicial determination,
therefore every man, having a like cause, ought to be
wronged also.
Kerlin's Lessee v. Bull, 1 Dall. 175, 178 (Pa. 1786).
¶65 To avoid the injustice of subjecting parties in
perpetuity to erroneous holdings, "[t]he primary and most
important factor to weigh in considering whether to overrule an
earlier decision is its correctness." Johnson, 400 Wis. 2d 626,
¶259 (quoting Garner et al., The Law of Judicial Precedent, at
397). "[W]e do more damage to the rule of law by obstinately
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refusing to admit errors, thereby perpetuating injustice, than
by overturning an erroneous decision." State v. Roberson, 2019
WI 102, ¶49, 389 Wis. 2d 813, 935 N.W.2d 813 (quoting Johnson
Controls, 264 Wis. 2d 60, ¶100). "By applying demonstrably
erroneous precedent instead of the relevant law's
text[,] . . . the Court exercises 'force' and 'will,' two
attributes the People did not give it." Gamble v. United
States, 139 S. Ct. 1960, 1981 (2019) (Thomas, J., concurring)
(quoting The Federalist No. 78, at 465 (Alexander Hamilton)
(Clinton Rossiter ed. 1961)).
¶66 Although judges are particularly reluctant to depart
from the doctrine of stare decisis with respect to a holding
repeatedly applied, "[e]ven a series of decisions are not always
conclusive evidence of what is law; and the revision of a
decision very often resolves itself into a mere question of
expediency[.]" 1 James Kent, Commentaries on American Law 476
(New York, Clayton & Norden, 3d ed. 1836). Courts tend to
follow their earlier decisions because it is easy but not
necessarily because the decisions were correct. See Bartlett v.
Evers, 2020 WI 68, ¶200, 393 Wis. 2d 172, 945 N.W.2d 172 (Kelly,
J., concurring/dissenting). No matter how long a decision has
enjoyed judicial acquiescence, no amount of time can cure the
error: "[T]he law of precedent has less relation to mere
numbers, than to the decisive nature of the conclusions
announced, and the deliberation and care with which they have
been investigated." Wells, A Treatise on the Doctrine of Res
Adjudicata and Stare Decisis, at 535; see also Monroe v. Pape,
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365 U.S. 167, 220–21 (1961) (Frankfurter, J., dissenting)
("[T]he relevant demands of stare decisis do not preclude
considering, for the first time thoroughly and in the light of
the best available evidence . . . , a statutory interpretation
which started as an unexamined assumption on the basis of
inapplicable citations and has the claim of a dogma solely
through reiteration.").
¶67 Revisiting erroneous precedent is particularly
imperative when the precedent under review was established by
the Wisconsin Court of Appeals. As explained in our seminal
decision in Cook v. Cook, the court of appeals lacks
constitutional authority to overrule, modify, or withdraw
language from its published decisions. 208 Wis. 2d at 189–90.
Consequently, a single erroneous interpretation can easily
permeate a line of cases without any reconsideration by the
court of appeals of its correctness. In Cook, we encouraged the
court of appeals to "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."
208 Wis. 2d at 189. We also noted the court of appeals could
apply its prior decision while expressly stating its concern
that the decision was erroneous. Id. As an empirical matter,
however, the court of appeals rarely exercises these options.
In this case, for example, the court of appeals acknowledged
conflicting precedent but nonetheless utilized neither of the
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options we outlined in Cook.27 Last term we received only seven
requests for certification from the court of appeals.28
¶68 The people of Wisconsin established this court as the
supreme judicial tribunal and in fulfilling our constitutional
27 Friends of Frame Park, 394 Wis. 2d 387, ¶29. In this
case, the court of appeals violated Cook by following Young,
which modified the Racine Education Association I Line.
Although Young pre-dated Cook, our decision in Cook applies
retroactively. State v. Bolden, 2003 WI App 155, ¶10, 265
Wis. 2d 853, 667 N.W.2d 364 ("Although Jackson and Kuehl
preceded Cook, this makes no difference. Cook based its ruling
on 'power' not policy. If the court of appeals lacked the
'power' to overrule or modify its prior decisions after Cook, it
certainly also lacked that power before Cook.").
Before Cook, if two published court of appeals decisions
conflicted, the court often "pick[ed] the one [it] like[d]."
Adam S. Bazelon, Practice Tips: Dealing with Conflicting Court
of Appeals Opinions, Wis. Law., Dec. 2009, at 22, 23,
https://www.wisbar.org/NewsPublications/WisconsinLawyer/pages/ar
ticle.aspx?Volume=82&Issue=12&ArticleID=1794#16 (quoted source
omitted) (second and third modification in the original). Post-
Cook, the earlier decision prevails because the court of appeals
lacked the power to modify it:
If a court finds that the later court of appeals
decision overruled or modified a prior court of
appeals decision, the court must follow the earlier
decision. This is because the court of appeals lacks
the power to overturn its own precedent and exceeds
its jurisdiction by doing so. In contrast, when the
court of appeals is confronted with conflicting
supreme court precedent, it must follow the supreme
court's most recent pronouncement.
Id. In this case, the court of appeals acknowledged it had to
"reconcile what, at least superficially, appears to be
inconsistent language from prior decisions addressing how and
whether a public records plaintiff can recover attorney fees
following voluntary release during litigation." Friends of
Frame Park, 394 Wis. 2d 387, ¶4. Had the court applied Cook, it
would have been bound to apply the Racine Education Association
I Line instead.
28 Wisconsin Supreme Court Annual Statistics, at 3.
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duty to declare the law in this state, we may overturn any
incorrect court of appeals opinion with no consideration of the
stare decisis doctrine. Of particular relevance in this case,
"the principle of stare decisis . . . does not require us 'to
adhere to interpretations of statutes that are objectively
wrong.'" Samuel J.H., 349 Wis. 2d 202, ¶5 n.2 (quoting Wenke,
274 Wis. 2d 220, ¶21). "Reflexively cloaking every judicial
opinion with the adornment of stare decisis threatens the rule
of law, particularly when applied to interpretations wholly
unsupported by the statute's text." Manitowoc v. Lanning, 2018
WI 6, ¶81 n.5, 379 Wis. 2d 189, 906 N.W.2d 130 (Rebecca Grassl
Bradley, J., concurring). While court of appeals opinions may
be helpful to this court in ascertaining a statute's meaning,
"[i]t should be borne in mind that the mere text [of the law],
and only the text . . . was adopted[.]" Frederick Douglass, The
Constitution of the United States: Is It Pro-Slavery or Anti-
Slavery?, Speech Delivered at Glasgow, Scotland (March 26,
1860); see also Michael Sinclair, Traditional Tools of Statutory
Interpretation 13 (1942) ("After the plain text of a statute,
precedent is the most significant, the most ubiquitous, and the
most powerful of the traditional tools of statutory
construction." (emphasis added)). "By recognizing that 'a law
is the best expositor of itself,' courts can faithfully fulfill
their function as neutral arbiters." Wis. Jud. Comm'n v. Woldt,
2021 WI 73, ¶92, 398 Wis. 2d 482, 961 N.W.2d 854 (Rebecca Grassl
Bradley, J., concurring/dissenting) (quoting Pennington v. Coxe,
6 U.S. (2 Cranch) 33, 52 (1804)).
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C. The Court of Appeals Precedent
¶69 The Racine Education Association I Line is objectively
wrong, and the Young/Portage Cases applied by the court of
appeals in this case depart even further from proper statutory
interpretation. I would overturn the line and the Young/Portage
Cases and instead apply the actual statutory text.
¶70 For context, the legislature rewrote Wisconsin's
public record laws in 1982, inspired in part by Congress's
enactment of the Freedom of Information Act (FOIA) in the late
1960s. Linda De La Mora, Comment, The Wisconsin Public Records
Law, 67 Marq. L. Rev. 65, 65 (1983). FOIA permitted federal
district courts to award attorney fees to requesters who
"substantially prevailed" in an action. 5 U.S.C. § 552(a)(4)(E)
(1976). Although Wis. Stat. § 19.37(2)(a), which was created
during this re-write, uses slightly different language, it seems
to have been based on the language in FOIA.
¶71 A student-authored law review comment published in
1983 suggested Wisconsin courts should look to "existing federal
case law" to interpret Wis. Stat. § 19.37(2)(a). Mora, The
Wisconsin Public Records Law, at 104 & nn.293–95. The court of
appeals has done just that, parroting federal decisions that
have been abrogated instead of applying the text of
§ 19.37(2)(a).
1. The Racine Education Association I Line
¶72 In 1986, the court of appeals interpreted Wis. Stat.
§ 19.37(2)(a) for the first time in Racine Education Association
I, 129 Wis. 2d 319. A teachers union requested records from a
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school district showing who was a member of a bargaining unit.
Id. at 323. The district did not respond, so the union filed a
mandamus action. Id. The district argued an exception applied—
—specifically, Wis. Stat. § 19.35(1)(l), which states that
compliance with a request is not mandated if a new record would
need to be made by extracting information from existing records.
Id. The district did note, however, that it was in the process
of compiling the information for reasons unrelated to the
request. Id. While the action was pending, the district
released the requested records. Id. The circuit court
dismissed the action as moot. Id. at 322. The union appealed,
arguing it was entitled to an award of attorney fees. Id.
¶73 The court of appeals reversed and remanded for
factfinding. Id. at 330. Ostensibly following the student
comment's guidance, the court looked to federal decisions,
primarily Cox v. United States Department of Justice, 601 F.2d 1(D.C. Cir. 1979) (per curiam), abrogated on other grounds by
Benavides v. Bureau of Prisons, 993 F.2d 257 (D.C. Cir. 1993).
Cox held a requester could be deemed to have prevailed, even in
the absence of favorable relief from a court, if it showed:
(1) its action "could reasonably be regarded as necessary," and
(2) "a causal nexus exists between that action and the agency's
surrender of information." Id. at 6. In Racine Education
Association I, the court explicitly adopted Cox's holding. 129
Wis. 2d at 326–28. The court stated the case, on remand, would
turn "largely [on] a question of causation[.]" Id. at 327.
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¶74 At least five subsequent cases endorsed the causal
nexus requirement articulated in Racine Education Association I.
See WTMJ, Inc., 204 Wis. 2d at 460; Eau Claire Press Co. v.
Gordon, 176 Wis. 2d 154, 162, 499 N.W.2d 918 (Ct. App. 1993);
State ex rel. Eau Claire Leader-Telegram v. Barrett, 148
Wis. 2d 769, 772–73, 436 N.W.2d 885 (Ct. App. 1989); Racine
Educ. Ass'n v. Bd. of Educ. for Racine Unified Sch. Dist., 145
Wis. 2d 518, 522–23, 427 N.W.2d 414 (Ct. App. 1988); Vaughan,
143 Wis. 2d at 871–73. Despite each case invoking the causal
nexus test, some reached apparently contradictory results. For
example, in State ex rel. Eau Claire Leader-Telegram v. Barrett,
a newspaper requested sealed settlement documents filed in
several circuit court cases (the "Edson case"). 148 Wis. 2d at
770. Eventually, the newspaper filed a mandamus action. The
clerk of court and the circuit court judge who presided over the
Edson case, Judge Roderick Cameron, reached a stipulation with
the newspaper, under which Judge Cameron agreed to release the
records if no party to the Edson case objected. Id. at 771.
Several parties did object, the newspaper intervened to argue
for disclosure, and Judge Cameron released an edited version of
the documents. Id. The newspaper moved for an award of
attorney fees in the mandamus action. The court of appeals
concluded the newspaper's intervention in the Edson case caused
the release of the records——not the mandamus action——so it was
not entitled to attorney fees. Id. at 772.
¶75 In Eau Claire Press Co. v. Gordon, 176 Wis. 2d 154,
the court of appeals reached the opposite conclusion. A
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newspaper requested records from a city related to a settlement
in a discrimination case. Id. at 157. The city attorney denied
the request, citing a confidentiality agreement the city had
entered into with the plaintiff. Id. The newspaper filed a
mandamus action, and during its pendency, the plaintiff in the
discrimination case agreed not to consider the release of the
settlement records a breach of the confidentiality agreement.
Id. at 158. Thereafter, the city released the records. Id.The circuit court denied the newspaper's motion for an award of
attorney fees because, in its view, the plaintiff's agreement
not to consider the release a breach was the cause of the
release. Id. at 161. The court of appeals concluded,
irrespective of the plaintiff's agreement, the mandamus action
was a substantial factor in causing the release of the records,
so an award of attorney fees was appropriate. Id. at 162.
2. The Young/Portage Cases
¶76 In two cases, the court of appeals departed from its
own precedent requiring a causal nexus. In State ex rel. Young
v. Shaw, 165 Wis. 2d 276, the requester was allegedly involved
in a "hit and run" in February 1989. Id. at 283. He was
charged with leaving the scene of an accident on March 6. Id.On March 9, the requester made a written demand to the district
attorney's office for the officer's narrative and photographs.
Id. at 283–84. On March 22, the assistant district attorney
responded that, because the State filed criminal charges, his
demand was governed by discovery statutes applicable to criminal
cases, rather than Wis. Stat. § 19.35. Id. at 284. She
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informed the requester he would have to wait until the initial
appearance on March 29 to receive the officer's narrative. Id.
The requester filed a mandamus action on March 27. Id. at 285.
At the March 29 initial appearance, the assistant district
attorney released the officer's narrative to the requester. Id.
at 291. The photographs were released at a later conference on
May 9. Id. at 284. Apparently, the assistant district attorney
released the records only because she thought the statutes
governing criminal discovery compelled release——not because of
the public records laws. See id. at 293.
¶77 The court of appeals concluded the requester prevailed
in his mandamus action. It acknowledged the Racine Education
Association I Line requires a requester to establish "a causal
nexus" between the action and the release of the record. Id. at
292–93 (citing Racine Educ. Ass'n I, 129 Wis. 2d at 328 and
quoting Cox, 601 F.2d at 61). In the admitted absence of a
causal nexus, the court fashioned an exception based on what the
court considered an unreasonable delay in the release of the
officer's narrative and the photographs——grounded in a good
faith but legally unavailing reliance on the criminal discovery
statutes. See id. at 293–95. Under "these circumstances," the
court reasoned, to "deprive" a requester of his ability to
recover attorney fees would "frustrate and indeed negate the
purpose of the open records law rather than encourage compliance
with it." Id. at 293. The court nevertheless concluded the
requester was not entitled to attorney fees because he
represented himself pro se——apparently, in the court's view,
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that would also frustrate and indeed negate the law's purpose.
Id. at 295–96.
¶78 In the second case to ignore the causal nexus text, a
newspaper requested a copy of an investigative report from a
sheriff. Portage Daily Reg., 308 Wis. 2d 357, ¶1. The sheriff
denied the request because the district attorney was considering
criminal charges. Id. The newspaper filed a mandamus action;
thereafter, the report was made public. Id., ¶6. The newspaper
moved for an award of attorney fees, which the circuit court
denied. It concluded that the denial was stated in
"sufficiently specific" terms and satisfied the balancing test.
Id., ¶1. The issue on appeal was whether the denial was legal.
Notably, the court of appeals did not decide whether the
newspaper was entitled to an award of attorney fees; it simply
said a decision on the merits was warranted, i.e., the case was
not moot, because the decision would impact whether attorney
fees could be awarded. Id., ¶8 & n.4. Portage Daily Register
did not address any precedent on what it means for a party to
prevail.
D. The Meaning of Prevailing Party
¶79 The court of appeals' varying interpretations of the
statute governing the recovery of attorney fees in public
records cases are "objectively wrong." Wenke, 274 Wis. 2d 220,
¶21. Wisconsin Stat. § 19.37(2)(a) provides, in relevant part:
"[T]he court shall award reasonable attorney fees . . . to the
requester if the requester prevails in whole or in substantial
part in any action filed under sub. (1) relating to access to a
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record or part of a record under s. 19.35 (1)(a)." (Emphasis
added.) The court of appeals never considered whether
"prevails . . . in any action" bears an accepted legal meaning.
It does.
¶80 As we explained in Kalal, "[s]tatutory language is
given its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their
technical or special definitional meaning." 271 Wis. 2d 633,
¶45 (citing Bruno v. Milwaukee County, 260 Wis. 2d 633, ¶¶8, 20,
260 Wis. 2d 633, 660 N.W.2d 656). "Legal terms of art" qualify
as technical words or phrases, so we give them "their accepted
legal meaning." Bank Mut., 326 Wis. 2d 521, ¶23 (quoting Estate
of Matteson, 309 Wis. 2d 311, ¶22).
¶81 "When the legislature adopts a phrase from the common
law that has a specific legal meaning and does not otherwise
define it, we presume that the legislature adopts the phrase's
specific legal meaning." State v. Matthews, 2021 WI 42, ¶9, 397
Wis. 2d 1, 959 N.W.2d 640 (citing Bank Mut., 326 Wis. 2d 521,
¶39 and Strenke v. Hogner, 2005 WI 25, ¶28, 279 Wis. 2d 52, 694
N.W.2d 296); see also Buckhannon, 532 U.S. at 615–16 (Scalia,
J., concurring) ("[W]here Congress borrows terms of art in which
are accumulated the legal tradition and meaning of centuries of
practice, it presumably knows and adopts the cluster of ideas
that were attached to each borrowed word in the body of
learning[.]" (quoting Morissette v. United States, 342
U.S. 246, 263 (1992))); 2A Sutherland Statutory Construction
§ 47:30 n.1 (7th ed. updated Nov. 2020) ("Courts presume that a
29
No. 2019ap96.rgb
legislature that employs a term of art knows and adopts the
cluster of ideas attached to each borrowed word in the body of
learning from which it is taken." (citations omitted)); Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 320 (2012) ("A statute that uses a common-law term,
without defining it, adopts its common-law meaning.").
¶82 Consultation of legal dictionaries is not only
appropriate, but, to some extent, necessary to properly
interpret Wis. Stat. § 19.37(2)(a). See, e.g., State v.
Schaefer, 2008 WI 25, ¶¶29–31, 308 Wis. 2d 279, 746 N.W.2d 547(consulting Black's Law Dictionary to determine the meaning of
"discovery"). Black's Law Dictionary defines "prevail" as:
"(17c) 1. To obtain the relief sought in an action; to win a
lawsuit ."
Prevail, Black's Law Dictionary. "Relief" is defined as: "3.
The redress or benefit, esp. equitable in nature (such as an
injunction or specific performance), that a party asks of a
court. — Also termed remedy." Relief, Black's Law Dictionary.
Similarly, Black's Law Dictionary defines "prevailing party" as:
"(17c) A party in whose favor a judgment is rendered, regardless
of the amount of damages awarded . — Also
termed successful party." Prevailing party, Black's Law
Dictionary; see also Union of Needletrades, Indus. & Textile
Emps., AFL-CIO, CLC v. U.S. Immigr. & Naturalization Serv., 336
F.3d 200, 207–08 (2d Cir. 2003) ("UNITE's primary contention on
appeal is that a party that 'substantially prevails' (or a
30
No. 2019ap96.rgb
'substantially prevailing party') under FOIA is necessarily
different from a 'prevailing party' . . . . Several
considerations leave us unconvinced."). As Black's Law
Dictionary notes, the definitions of "prevail" and "prevailing
party" trace to the seventeenth century——long before the 1982
enactment of Wis. Stat. § 19.37(2)(a).
¶83 The meaning of "prevailing party" had endured in the
law, unaltered. Black's Law Dictionary notes that "prevailing
party" is synonymous with "successful party." Prevailing party,
Black's Law Dictionary. Another legal dictionary, published in
1920, provides a single definition of "successful": "The word
'successful' . . . in relation to the allowance of attorney fees
to the plaintiff . . . means a termination of the action in his
favor by a decree[.]" Successful, Legal Definitions (1920)
(emphasis added) (citation omitted).
¶84 A legal dictionary from 1879 illustrates the meaning
of "prevail" by summarizing the holdings of five cases.
Prevail, Dictionary of Terms and Phrases Used in American or
English Jurisprudence (1879).
• In Bangor & Piscataquis R. R. Co. v. Chamberlain, a
landowner sued a railroad company for damages stemming
from a taking. 60 Me. 285, 285 (1872). County
commissioners awarded the landowner $650. Id. at 286.
The railroad company appealed. Id. On appeal, a jury
reduced the award to $435. Id. A Maine statute provided
that: "When an appeal is taken, the losing party is to
pay the cost thereon." Id. The Maine Supreme Court had
to decide which party was to pay the costs of the appeal,
framing the issue as: "[W]hich was the prevailing
party?" Id. Logically, because the losing party did not
prevail, the court held the landowner prevailed,
concluding he "successfully maintained his claim for
damages[.]" Id.31
No. 2019ap96.rgb
• In Hawkins v. Nowland, the Missouri Supreme Court
concluded that the plaintiff was a "prevailing party,"
although the favorable judgment he recovered was not
"what he claimed[.]" 53 Mo. 328, 330 (1873).
• In Henry v. Miller, the Maine Supreme Court concluded a
creditor was a "prevailing party" even though he obtained
a judgment for less than he sought. 61 Me. 105, 105
(1872).
• In Rogers v. City of St. Charles, the Missouri Supreme
Court concluded a city that obtained a verdict of
condemnation was a "prevailing party," entitled to costs.
54 Mo. 229, 233–34 (1873) (per curiam).
• In Weston v. Wright, the Vermont Supreme Court concluded
an orator had "prevailed" because he had established he
was entitled to a decree, although the decree was less
favorable than the relief he sought. 45 Vt. 531, 535–37
(1873).
None of these cases declared a party "prevailed" without
obtaining favorable relief from a court.
¶85 Consistent with these settled definitions, a statute
renumbered by this court in 1975 stated: "Judgment. In such
actions, when the plaintiff prevails, he shall, in addition to
judgment for damages and costs, also have judgment that the
nuisance be abated unless the court shall otherwise order."
Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975) (codified as amended
at Wis. Stat. § 823.03) (emphasis added). This statute
presupposes that a prevailing party obtained a favorable
judgment in court.
¶86 As evidenced by its stable legal history,
"'[p]revailing party' is not some newfangled legal term invented
for use in late-20th-century fee-shifting statutes."
Buckhannon, 532 U.S. at 610. In Buckhannon, Justice Antonin
Scalia wrote in concurrence he was aware of "no cases, state or
32
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federal" prior to 1976 that endorsed the catalyst theory. Id.
at 611. After Wis. Stat. § 19.37(2)(a) was enacted in 1982, the
court of appeals adopted the catalyst theory, which conflicts
with the longstanding meaning of what it means to prevail in a
court case. A "fair reading" of a statute requires adherence to
the statute's text as it was understood at the time of the
statute's enactment. Scalia & Garner, Reading Law, at 33.
¶87 To "prevail[] in whole or in substantial part in any
action filed under sub. (1)," a requester must obtain through a
court order at least some of the relief it sought. See Meinecke
v. Thyes, 2021 WI App 58, ¶1, 399 Wis. 2d 1, 963 N.W.2d 816("[The plaintiff] contends she prevailed in substantial part in
her mandamus action when the circuit court ordered the release
of some but not all of the records that she requested from
public officials. We agree.").
¶88 The accepted legal meaning of "prevails . . . in any
action" also matches its common, ordinary meaning. See Kalal,
271 Wis. 2d 633, ¶45 (citing Bruno, 260 Wis. 2d 633, ¶¶8, 20).
In common parlance, prevailing in a mandamus action is not
equivalent to obtaining access to a public record by other
means. Justice Scalia illustrated the difference in his
Buckhannon concurrence:
If a nuisance suit is mooted because the defendant
asphalt plant has gone bankrupt and ceased operations,
one would not normally call the plaintiff the
prevailing party. And it would make no difference, as
far as the propriety of that characterization is
concerned, if the plant did not go bankrupt but moved
to a new location to avoid the expense of litigation.
In one sense the plaintiff would have "prevailed"; but
he would not be the prevailing party in the lawsuit.
33
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532 U.S. at 615. In designating a plaintiff who obtained access
to records by means other than a court judgment a "prevailing
party," the court of appeals either excised "in any action filed
under sub. (1)" from the statutory text or rewrote the phrase to
say "after any action filed under sub. (1)." We have no power
to rewrite the words chosen by the legislature. E.g., State v.
Fitzgerald, 2019 WI 69, ¶30, 387 Wis. 2d 384, 929 N.W.2d 165.29
¶89 The court of appeals' interpretations of what it means
to prevail in a mandamus action have also been undermined by
"changes or developments in the law." See Roberson, 389
Wis. 2d 190, ¶50 (quoting Bartholomew, 293 Wis. 2d 38, ¶33).
Specifically, they rest on the now-defunct "catalyst theory,"
which the United States Supreme Court rejected more than 20
years ago. Buckhannon, 532 U.S. at 600 (majority opinion).
¶90 In Buckhannon, the plaintiff brought claims under the
Fair Housing Amendments Act (FHAA) and the Americans with
Disabilities Act (ADA) against West Virginia (and two of its
agencies), arguing that a state statute violated these federal
Even following the Racine Education Association I Line
29
defeats Friends' claim for attorney fees. "[A]n allegedly
prevailing complainant must assert something more than post hoc,
ergo propter hoc[.]" Racine Educ. Ass'n I, 129 Wis. 2d at 326–
27 (quoting Cox v. U.S. Dep't of Just., 601 F.2d 1, 6 (D.C. Cir.
1979) (per curiam)). Timing is not sufficient to demonstrate
causation. If it were, causation would effectively be
eliminated as an element altogether because any time an action
were filed and a custodian thereafter released the requested
record, as in this case, the requester would be able to recover
attorney fees.
34
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laws. Id. at 601. Before the district court rendered a
decision, the West Virginia Legislature eliminated the statutory
requirement. Id. The defendants then moved to dismiss the case
as moot. Id. The district court granted the motion and the
Fourth Circuit affirmed, rejecting the plaintiff's claim that it
was entitled to attorney fees.30 Id. at 601–02.
¶91 The United States Supreme Court interpreted the
meaning of "prevailing party" in fee-shifting schemes permitted
in the FHAA31 and the ADA.32 Id. at 601. The Court stated:
Now that the issue is squarely presented, it behooves
us to reconcile the plain language of the statutes
with our prior holdings. We have only awarded
attorney's fees where the plaintiff has received a
judgment on the merits, or obtained a court-ordered
30The majority/lead opinion is confusing. On the one hand,
it claims to endorse the test articulated in Buckhannon. On the
other, it refuses to acknowledge this case is moot. The entire
point of Buckhannon was to determine under what circumstances,
if any, a party could be deemed to have prevailed even though
the case became moot, thereby barring favorable relief.
The majority/lead opinion's misunderstanding of Buckhannon
has serious implications. While the majority/lead opinion
states the test correctly (to prevail, a party must receive
favorable relief from a court), it never applies the test.
Instead, it turns to the merits without identifying any
favorable relief to which Friends might be entitled at this
point. The prevailing party test is not a merits determination;
if it were, Buckhannon would have been about the merits of the
plaintiff's FHAA and ADA claims, which it never addressed.
3142 U.S.C. § 3601(c)(2) (2001) ("[T]he court, in its
discretion, may allow the prevailing party . . . a reasonable
attorney's fee and cost.").
3242 U.S.C. § 12105 (2001) ("[T]he court . . ., in its
discretion, may allow the prevailing party . . . a reasonable
attorney's fee[.]").
35
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consent decree . . . . Never have we awarded
attorney's fees for nonjudicial alterations of actual
circumstances.
Id. at 605–06 (second emphasis added) (internal quotations and
citations omitted). The Court noted that "prevailing party" was
a "rather clear" phrase, which did not encompass the catalyst
theory. Id. at 607. It explicitly relied on Black's Law
Dictionary. Id. at 603 (quoting Prevailing party, Black's Law
Dictionary (7th ed. 1999)).
¶92 Buckhannon destroyed the foundation of the court of
appeals precedent. The Racine Education Association I Line
rests on federal decisions interpreting FOIA and employing the
catalyst theory, specifically, Cox, 601 F.2d 1. Buckhannon
abrogated Cox and similar federal cases. The Ninth Circuit
recognized this in Oregon Natural Desert Association v. Locke,
noting that Buckhannon's rejection of the catalyst theory
logically extends to FOIA.33 572 F.3d 610, 614–16 (9th Cir.
2009). Similarly, in Oil, Chemical & Atomic Workers
International Union, AFL-CIO v. Department of Energy, the D.C.
Circuit, quoting Buckhannon, held "that in order for plaintiffs
in FOIA actions to become eligible for an award of attorney's
fees, they must have 'been awarded some relief by [a] court,'
either in a judgment on the merits or in a court-ordered consent
decree." 288 F.3d 452, 456–57 (D.C. Cir. 2002), superseded by
33 The Ninth Circuit noted a 2007 amendment to FOIA
"modified FOIA's provision for the recovery of attorney fees to
ensure that FOIA complainants who relied on the catalyst theory
to obtain an award of attorney fees would not be subject to the
Buckhannon proscription." Or. Nat. Desert Ass'n v. Locke, 572
F.3d 610, 615 (9th Cir. 2009).
36
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statute as stated by Summers v. Dep't of Just., 569 F.3d 500(D.C. 2009) (quoting Buckhannon, 532 U.S. at 603).
¶93 Even if the United States Supreme Court had not
disavowed the catalyst theory, our own court of appeals cases
are nonetheless "unsound in principle." See Roberson, 389
Wis. 2d 190, ¶50 (quoting Bartholomew, 293 Wis. 2d 38, ¶33).
They failed to follow our well-established rule of statutory
interpretation that legal terminology must be given its
"accepted legal meaning." Bank Mut., 326 Wis. 2d 521, ¶23
(quoting Estate of Matteson, 309 Wis. 2d 311, ¶22). Choosing
alternative meanings, particularly to advance preferred
policies, destabilizes the law. See Scalia & Garner, Reading
Law, at 320. Additionally, judicial tampering with accepted
legal meaning interferes with the legislature's ability to make
law. See Wisconsin Bill Drafting Manual § 2.03(2)(a)(2019–20)
(advising drafters at the Legislative Reference Bureau to
consider whether a word or phrase is "self-defining" by
consulting "standard or legal dictionaries").
¶94 Problematically, the Young/Portage Cases are
principally grounded in public policy rather than the text of
Wis. Stat. § 19.37(2)(a). In Young, the court reasoned to
"deprive" a requester of his ability to recover attorney fees
would "frustrate and indeed negate the purpose of the open
records law rather than encourage compliance with it." 165
Wis. 2d at 293. This sort of consequentialist reasoning is
antithetical to our textualist approach, articulated in Kalal,
271 Wis. 2d 633. See Clean Wis., Inc. v. Dep't Nat. Res., 2021
37
No. 2019ap96.rgb
WI 71, ¶86, 398 Wis. 2d 346, 961 N.W.2d 346 (Rebecca Grassl
Bradley, J., dissenting) (explaining Kalal is Wisconsin's "most
cited case of modern times" (quoting Daniel R. Suhr,
Interpreting Wisconsin Statutes, 100 Marq. L. Rev. 969, 969–70
(2017))). Consequentialists "urge that statutes should be
construed to produce sensible, desirable results, since that is
surely what the legislature must have intended. But it is
precisely because people differ over what is sensible and what
is desirable that we elect those who will write our laws——and
expect courts to observe what has been written." Scalia &
Garner, Reading Law, at 22.
¶95 Kalal rejected the very purposivism and
consequentialism employed by the court of appeals in this case
as well as its predecessors. "It is the enacted law, not the
[legislature's] unenacted intent, that is binding on the
public." Kalal, 271 Wis. 2d 633, ¶44. Faithfulness to the text
of a law rather than advancing an imagined purpose underlying
its enactment or avoiding a consequence deemed unsavory (in the
subjective opinion of the judge) is a condition precedent to the
rule of law:
The principles of statutory interpretation that we
have restated here are rooted in and fundamental to
the rule of law. Ours is "a government of laws not
men," and "it is simply incompatible with democratic
government, or indeed, even with fair government, to
have the meaning of a law determined by what the
lawgiver meant, rather than by what the lawgiver
promulgated." "It is the law that governs, not the
intent of the lawgiver . . . . Men may intend what
they will; but it is only the laws that they enact
which bind us."
38
No. 2019ap96.rgb
Id., ¶52 (quoting Antonin Scalia, A Matter of Interpretation 17
(1997)); see also J. Times v. City of Racine Bd. of Police &
Fire Comm'r, 2015 WI 56, ¶117, 362 Wis. 2d 577, 866 N.W.2d 563(Abrahamson, J., concurring) (explaining "it seems that the
Newspaper was sandbagged" but nonetheless concluding "the
Newspaper has not sufficiently tethered its argument to the
language of Wis. Stat. § 19.37(2)(a)").
¶96 When courts lose sight of this first principle, when
they "fail to follow the . . . letter of the positive law," too
easily are "the most valuable privileges of the
people . . . rendered illusory" "under the pretense of
explaining and extending them[.]" Francis Stoughton Sullivan,
Lectures on the Constitution and Laws of England 64 (1805).
Although judges may profess well-intentioned justifications for
"improving" the law, "interpretive approaches can be used for
all kinds of purposes, not just beneficent ones." Bryan A.
Garner, Old-Fashioned Textualism Is All About Interpretation,
Not Legislating from the Bench, ABA J., Apr. 2019.34 Ignoring
the law's plain meaning because the result in a particular case
is, in a judge's subjective judgment, "appealing," causes
"considerable mischief." Force v. Am. Family Mut. Ins., 2014 WI
82, ¶148, 356 Wis. 2d 582, 850 N.W.2d 866 (Roggensack, J.,
dissenting). "One can always do 'more' in pursuit of a goal,
but statutes have limits." N.A.A.C.P. v. Am. Fam. Mut. Ins.,
978 F.2d 287, 298 (7th Cir. 1992). Those limits are prescribed
by the people's representatives in the legislature and
34 https://www.abajournal.com/magazine/article/textualism-
means-what-it-says.
39
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discarding them disrupts the constitutional order by allowing
judges to act as policy-makers. "While textualism cannot
prevent the incursion of policy preferences into legal
analysis . . . without textualism, such encroachment is
certain." Woldt, 398 Wis. 2d 482, ¶92. The people of Wisconsin
elect judges to interpret the law, not make it.
¶97 Even a cursory reading of the court of appeals
precedent on awarding attorney fees in public records cases
reveals it is "incoherent" and "unworkable in practice,"
presenting yet another reason to overturn it. See Roberson, 389
Wis. 2d 190, ¶50 (quoting Bartholomew, 293 Wis. 2d 38, ¶33). In
this case, the court of appeals struggled to "reconcile what, at
least superficially, appears to be inconsistent language from
prior decisions addressing how and whether a public records
plaintiff can recover attorney fees following voluntary release
during litigation."35 Applying the statutory text would ensure
consistent and predictable application of the law, eliminating
the subjectivity inherent in determining who "prevailed" in a
suit.
¶98 When the United States Supreme Court rejected the
catalyst theory in Buckhannon, it criticized the theory's
subjectivity. 532 U.S. at 609-10. The dissent proposed four
conditions precedent for a plaintiff to be deemed to have
prevailed under the catalyst theory:
• "A plaintiff first had to show that the defendant
provided some of the benefit sought by the lawsuit." Id.35 Friends of Frame Park, 394 Wis. 2d 387, ¶29.
40
No. 2019ap96.rgb
at 627 (Ginsburg, J., dissenting) (citations and
quotations omitted).
• "[A] plaintiff had to demonstrate as well that the suit
stated a genuine claim, i.e., one that was at least
colorable, not frivolous, unreasonable, or groundless."
Id. (citations and quotations omitted).
• "Plaintiff . . . had to establish that her suit was a
substantial or significant cause of defendant's action
providing relief." Id. at 628 (citations and quotations
omitted).
• "[Sometimes] plaintiff had to satisfy the trial court
that the suit achieved results by threat of victory, not
by dint of nuisance and threat of expenses." Id.
(citations and quotations omitted).
¶99 The majority opinion dismissed this version of the
catalyst theory as "clearly not a formula for ready
administrability" and likely to "spawn[] a second litigation of
significant dimension[.]" Id. at 609-10 (majority opinion)
(quoting Tex. State Tchrs. Ass'n v. Garland Indep't Sch. Dist.,
489 U.S. 782, 791 (1989)). Determining a plaintiff's
entitlement to attorney fees would require litigating the merits
of a moot public records case, but the United States Supreme
Court has cautioned "[a] request for attorney's fees should not
result in a second major litigation[.]" Id. (quoting Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983)). Disregarding Buckhannon,
the majority/lead opinion's approach will produce unnecessary
litigation.
¶100 The legislature forcefully declared the purpose of the
public records laws:
In recognition of the fact that a representative
government is dependent upon an informed electorate,
it 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 and
41
No. 2019ap96.rgb
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, ss. 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.
Wis. Stat. § 19.31. A declaration of policy is a permissible
indicator of a statute's plain meaning——but only to a degree.
Scalia & Garner, Reading Law, at 217–18. In this case, Wis.
Stat. § 19.37(2)(a) employs legal terminology with a meaning
ensconced in the law long ago and used in substantially similar
form in many other statutes.36 Legal terms of art employed
throughout a code of law must be interpreted consistently to
preserve stability and predictability in the law.
III. CONCLUSION
¶101 This court properly reverses the metamorphosis in
public records law created by the court of appeals' atextual
interpretation of what it means to prevail in a court action.
Friends did not obtain any favorable relief in court. This case
was moot almost as soon as it began. We should say so, and
overturn court of appeals precedent crafted to advance the
policy preferences of judges at the expense of the law's text.
The majority/lead opinion reached the right outcome for the
wrong reasons, declining to recognize the case is moot and
See,
36 e.g., Wis. Stat. § 19.59(8)(d); Wis. Stat.
§ 30.49(2)(b); Wis. Stat. § 134.49(6)(b).
42
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instead allowing litigation over the merits. I respectfully
concur with the mandate.
¶102 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join
this concurrence.
43
No. 2019AP96.jjk
¶103 JILL J. KAROFSKY, J. (dissenting). "Sunshine is a
great disinfectant." Milwaukee J. Sentinel v. DOA, 2009 WI 79,
¶103, 319 Wis. 2d 439, 768 N.W.2d 700 (Abrahamson, J.,
dissenting). That's the theory behind Wisconsin's public
records laws. Shine light on the government's work product and
citizens will engage and hold to account their representatives,
achieving a purer democracy. A majority of this court
frustrates that goal, seeding clouds as it eviscerates the
mandatory fee shifting provisions integral to keeping the sun
shining in our great state. By reinterpreting the law to reward
government actors for strategically freezing out the public's
access to records, today's decision will chill the public's
right to an open government. And the majority/lead opinion does
not stop there. It also condones the City's patently
inapplicable "competitive or bargaining" excuse to deny Friends
timely access to a proposed contract. The result is that
Friends are denied the attorney fees to which it is entitled for
bringing a claim to enforce its rights when Friends had no other
recourse. Because the majority/lead opinion reimagines the fee
shifting standard too narrowly, while construing the
"competitive and bargaining reasons" exception too broadly, all
at the expense of our public records laws, I respectfully
dissent.
I. ANALYSIS
¶104 "In recognition of the fact that a representative
government is dependent upon an informed electorate, it is
declared to be the public policy of this state that all persons
1
No. 2019AP96.jjk
are entitled to the greatest possible information regarding the
affairs of government[.]" Wis. Stat. § 19.31. Providing
citizens meaningful and timely access to government documents is
"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." Id.This transparency mandate promotes public involvement, which
sits at the core of Wisconsin's representative democracy. See
Nichols v. Bennet, 199 Wis. 2d 268, 273, 544 N.W.2d 428 (1996)
("The open records law serves one of the basic tenets of our
democratic system by providing an opportunity for public
oversight of the workings of government."). Our state and local
governments have traditionally committed themselves to this
democracy-promoting transparency, so much so that former Chief
Justice Abrahamson declared, "[i]f Wisconsin were not known as
the Dairy State it could be known, and rightfully so, as the
Sunshine State." Schill v. Wis. Rapids Sch. Dist., 2010
WI 86, ¶1, 327 Wis. 2d 572, 786 N.W.2d 177.
¶105 A majority of this court tarnishes Wisconsin's proud
history of transparent government by transforming a routine
records request into a catalyst to decimate Wisconsin's fee
shifting structure. This analysis begins by addressing the
majority's grievous perversion of the public records laws'
critical fee shifting provisions. Then, the analysis turns to
the case at hand, first explaining how unjustified delays in
releasing records burden the public. Lastly, this analysis
dismantles the City's flawed excuses for concealing the proposed
2
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contract by highlighting that: (1) the record implicated no
"competitive or bargaining" concern; and (2) the Common Council
did not enter into a closed session as is required to invoke the
"competitive or bargaining" excuse in the first place.
A. Attorney Fees
¶106 Attorney fees are integral to open records litigation
as they enable members of the public to compel the government to
work transparently. This section begins with an overview of fee
shifting provisions and their important role in our public
records laws. Next is an explanation of how the long-standing
"causation test" for awarding attorney fees is consistent with
the plain meaning of Wis. Stat. § 19.37(2)(a) and deters
gamesmanship from all parties in a public records action. Last
is a warning about how the deleterious new standard for attorney
fees may disincentivize government actors from making timely
disclosures, eviscerating the very purpose of the public records
laws.
1. Fee shifting is integral to transparency.
¶107 In an action to enforce Wisconsin's public records
laws, a requester is entitled to his or her attorney fees when
"the requester prevails in whole or in substantial part." Wis.
Stat. § 19.37(2)(a). This fee shifting provision serves two
important purposes: (1) it enables people, particularly those
with limited means, to bring enforcement actions; and (2) it
incentivizes the government's voluntary compliance by penalizing
3
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non-compliance.1 Fee shifting is often implemented when laws
rely on the public to bring enforcement challenges.2 In the
arena of public records, the government holds the records and no
other entity reviews the government's decision to withhold or
delay the release of a record. As a result, the only
enforcement mechanism is a citizen's mandamus action.3
§ 19.37(1)(a). Without a robust fee shifting mechanism in
public records laws, record requesters face a no-win scenario
when a request is denied. They can either acquiesce to the
1 See Thomas D. Rowe Jr., The Legal Theory of Attorney Fee
Shifting: A Critical Overview, 1982 Duke L.J. 651, 652, 54, 62,
73 (1982) (explaining that "the different concerns underlying
fee shifting rationales have three major strains——equity,
litigant incentives, and externalities." At a basic level "the
prevailing party, having been adjudged to be in the right,
should not suffer financially for having to prove the justice of
his position." Furthermore, in explaining the "private attorney
general" theory, "potential plaintiffs may well refrain from
bringing socially beneficial suits because the gains would not
sufficiently further their private interests." And finally, "it
can be important to effective deterrence to show by example that
violators will bear the victims' enforcement costs.").
2 See, e.g., Wis. Stat. § 100.20(5) (authorizing suit by any
person harmed by unfair trade practices to recover double
damages and reasonable attorney fees); Wis. Stat.
§ 111.18(2)(a)(3) (authorizing employees of health care
institutions to commence an action to enforce prohibitions on
unfair labor practices and providing for optional fee shifting
to successful plaintiffs); Shands v. Castrovinci, 115 Wis. 2d
352, 358, 340 N.W.2d 506 (1983) (explaining that a tenant suing
under Wis. Stat. § 100.20(5) "acts as a 'private attorney
general' to enforce the tenants' rights," and thus, "not only
enforces his or her individual rights, but the aggregate effect
of individual suits enforces the public's rights").
3 A citizen may also request that the district attorney or
attorney general bring a mandamus action on his or her behalf, a
decision entirely up to the district attorney's or attorney
general's discretion. See Wis. Stat. § 19.37(1)(b).
4
No. 2019AP96.jjk
government's potentially unlawful withholding of the record, or
they can bring a mandamus action to enforce their right to the
record at the risk of substantial legal fees.
¶108 Legal fees can create significant hurdles for two
common public record requesters: concerned citizens (like
Friends) and local news media (appearing as amici in this case).
Often, these two groups simply cannot afford the required legal
costs of a mandamus action.4 And without mandamus actions,
government violations of public records laws would go largely
unchecked, undermining these laws' legislatively declared
purpose to promote democracy through transparency. See Wis.
Stat. § 19.31; State ex rel. Newspapers, Inc. v. Showers, 135
Wis. 2d 77, 81, 398 N.W.2d 154 (1987) ("[I]f the media is denied
access to the affairs of government, the public for all
practical purposes is denied access as well. A democratic
government cannot long survive that burden."). Furthermore,
without fee shifting, the government has little incentive to
timely comply with records requests——it could simply delay until
the requester sinks considerable funds into litigating a
mandamus action. Absent robust fee shifting, the promise of our
public records laws is rendered a dead letter for all but the
select few with means, leading to fewer record requests, more
delays in the release of information, and, ultimately, a less
informed electorate.
4The once powerful and lucrative news media industry has
weakened considerably in modern times, with local news
organizations often working on a shoe-string budget. See PEN
America, Losing the News: The Decimation of Local Journalism
and the Search for Solutions 24-31 (2019).
5
No. 2019AP96.jjk
2. The "causation" test is efficient and textually supported.
¶109 Having established the critical importance and
function of fee shifting, next is a discussion about when courts
should implement this remedy. The court of appeals has long
relied upon the causation test to determine whether the
government should pay for a requestor's attorney fees. Under
the causation test, a reviewing court looks for a "causal nexus"
between the filing of a mandamus action and the document's
release. Eau Claire Press Co. v. Gordon, 176 Wis. 2d 154, 160,
499 N.W.2d 918 (Ct. App. 1993) ("The test of cause in Wisconsin
is whether the actor's action was a substantial factor in
contributing to the result.").
¶110 The causation test appropriately captures what it
means to "prevail . . . in substantial part" in a public records
case and is a workable, practical test. A majority of this
court, however, rejects the causation test. In its place, they
would now condition attorney fees on a "judicially sanctioned
change in the parties' legal relationship." Both the
majority/lead and concurring opinions insist that "prevailing
party" is a "legal term of art" according to Buckhannon Board
and Care Home, Inc. v. West Virginia Department of Health and
Human Services, 532 U.S. 598 (2001). See majority/lead op.,
¶20; concurring op., ¶40. There is one glaring error with
applying Buckhannon here. The phrase "prevailing party" is
conspicuously absent from Wisconsin's public records law.
Instead, § 19.37(2)(a) states that costs and fees must be
6
No. 2019AP96.jjk
awarded "if the requester prevails in whole or in substantial
part" in an action relating to a record's request.
¶111 An interpretation that equates the two phrases is
flawed because a "term of art" is "a word or phrase having a
specific, precise meaning in a given specialty, apart from its
general meaning in ordinary contexts." See Term of Art Black's
Law Dictionary (11th ed. 2019). The fact that a phrase is a
term of art does not mean each word within that phrase, when
used separately and independently, carries the same special
meaning. Specifically, a specialized meaning for "prevailing
party" does not impose that meaning on the independent use of
either "party" or "prevail."
¶112 In addition, the words the legislature chose are
meaningfully distinct. The legislature used the phrase "the
requester prevails" in § 19.37(2)(a) instead of "prevailing
party." (Emphasis added.) The use of "requester" rather than
"party" is instructive as "party" connotes litigation while
"requester" places the phrase in the broader context of the
records request. Thus, the test derived from the term of art
"prevailing party," which requires a judicially sanctioned
change in a litigant's position, does not fit the specific
language in Wisconsin's statutes.
¶113 Because the phrase "the requester prevails" lacks a
specialized or technical meaning, the common, ordinary, and
accepted meaning of those words controls. See, e.g., Stroede v.
Soc'y Ins., 2021 WI 43, ¶11, 397 Wis. 2d 17, 959 N.W.2d 305.
"Prevail" commonly means "to succeed." Prevail, Oxford English
7
No. 2019AP96.jjk
Dictionary. Even under a legal-specific definition, "prevail"
means "to obtain the relief sought in an action." Prevail,
Black's Law Dictionary 1438 (11th ed. 2019). Under the legal
definition, a requester "prevails" if the requester files a
mandamus action seeking a record's release and then receives
that record because it obtained the relief sought.5 The
causation test cabins this reading slightly by requiring that
the filing of the action be a cause of the record's release.
This limitation keeps record requesters from filing frivolous
mandamus actions before obtaining records that were never in
doubt of being released simply to extract fees.
¶114 Frivolous actions are one way to obstruct public
records cases. Delayed disclosures represent a second way to
game the system. Faust illustrates the value of addressing
delayed disclosures with fee shifting as a remedy. State ex
rel. Vaughan v. Faust, 143 Wis. 2d 868, 422 N.W.2d 898 (Ct. App.
The majority/lead opinion cites other Wisconsin Statutes
5
where a final adjudication by the court is inherently necessary
to establish a party has prevailed. But in those statutes, this
"judicially sanctioned change in the parties' positions" concept
comes not from the use or plain meaning of "prevail" but instead
from the context in which those statutes appear. See Wis. Stat.
ch. 102, § 6 (1849) ("[T]he plaintiff in error on the trial anew
shall be the successful and prevailing party."); Wis. Stat. ch.
109, § 6 (1849) ("If the plaintiff in such action prevail
therein, he shall have judgment for double the amount of damages
found by the jury."). Chapter 102 § 6 discusses the designation
of parties on appeal. For there to be an appeal there must have
been a judicially sanctioned resolution at trial. Chapter 109
§ 6 refers to damages awarded by a jury, which again require a
judicially sanctioned resolution at trial. The context of those
specific statutes narrow the meaning of "prevail" in a manner
not required by its plain meaning and which does not carry over
to the distinct context of the public records laws.
8
No. 2019AP96.jjk
1988). In Faust, an inmate requested records on January 26 and,
having received no response, re-requested the records on
February 19. Id. at 869. After again receiving no response,
the inmate filed a mandamus action on March 13, and shortly
thereafter the custodian of the records voluntarily supplied the
inmate with the requested records along with an apology for the
delay. Id. The court held that the mandamus action "was the
precipitating cause" of the release of the records and awarded
attorney fees and costs to the inmate. Id. at 872. The Faust
court correctly recognized that "[i]f the government can force a
party into litigation and then deprive that party of the right
to recover expenses by later disclosure, it would nullify the
statute's purpose." Id. Although nothing in Faust indicated
that the record custodian delayed the release of records
purposefully, a rule that allows such delay for any reason
without fee shifting unnecessarily harms the record requester
and encourages the government to deprioritize or flout this
"integral part of [its] routine duties." Wis. Stat. § 19.31.
¶115 In addition to encouraging timely compliance with
public records laws, the causation test also promotes judicial
efficiency. In circumstances where the government releases a
record before the end of trial, the test eliminates the need to
adjudicate the merits of a now-moot record request. It is well
established that plaintiffs in public records actions may seek
attorney fees and costs despite the underlying action being moot
because of the voluntary release of records. See Racine Educ.
Ass'n v. Bd. of Educ. for Racine Unified Sch. Dist., 129 Wis. 2d
9No. 2019AP96.jjk
319, 322, 385 N.W.2d 510 (Ct. App. 1986); Cornucopia Inst. v.
U.S. Dept. of Agric., 560 F.3d 673, 676-77 (7th Cir. 2009). The
causation test sensibly premises an award of fees and costs on a
finding that filing the mandamus action was reasonably necessary
to receive the record and that there was a causal connection
between the action and the record's release. This test allows a
court to make a grounded determination on the necessary attorney
fees question without fully litigating the underlying merits.
The factual inquiry required under a causation test is thus
necessarily limited and has been reliably applied by the lower
courts for decades. Thus, we should continue to employ this
textually faithful and practical test.
3. The "judicially sanctioned change" test is detrimental.
¶116 The new test, which looks for a "judicially sanctioned
change" in the parties legal relationship, will result in one of
two detrimental changes in how circuit courts handle public
records disputes. Which detrimental change actually occurs will
depend on how courts apply the test in cases where the records
are voluntarily released before the underlying mandamus action
reaches a final order. The new test would
either: (1) completely forego the option of awarding attorney
fees to a record requester when an authority voluntarily
releases a record, no matter the length of delay or the stage of
the action at the time of release; or (2) require that circuit
courts make a determination on the underlying merits of every
public records case that comes before them. The former
approach, which is sanctioned by the concurrence, nullifies our
10
No. 2019AP96.jjk
public records laws and allows governmental authorities to delay
the release of records; the latter is judicially inefficient.
The effects of a "judicially sanctioned change" test have
already played out in the federal context and we should learn
from those mistakes, not repeat them. Put simply, the new test
casts storm clouds over our once clear public records laws.
¶117 The first possible effect from the "judicially
sanctioned change" test would occur if the test is applied to
remove a party's ability to seek attorney fees when the
underlying case becomes moot through voluntary disclosure of
documents. Under this application, the new regime creates a
perverse incentive for the government to strategically delay the
release of records. If public records cases can be mooted out
by the government's voluntary release of a record, then the
government could escape any sanction for unlawfully delaying the
record's release so long as the government releases the record
at any point before the court orders the release. Although the
record ultimately gets released, the requester is left paying
potentially hefty attorney fees and costs for a record he or she
was already entitled to receive. See Milwaukee J. Sentinel, 341
Wis. 2d 607, ¶40 ("Increasing the costs of public records for a
requester may inhibit access to public records and, in some
instances, render the records inaccessible."). As the
government can easily avoid paying a requester's attorney fees,
members of the public will be disinclined to bring mandamus
actions. Fewer mandamus actions will chill the public's
informed involvement in government and lead to a less
11
No. 2019AP96.jjk
participative democracy. Rather than aspiring to be the
"sunshine state" of government transparency, we will be
relegated to the long, dark winter of obfuscation.
¶118 Alternatively, the second possible effect would occur
if the new test is applied to allow an award of attorney fees
even when the government has already voluntarily disclosed the
requested records. This approach is consistent with precedent.6
In this situation, the new test creates judicial inefficiency
because a circuit court would be required to fully adjudicate
the underlying public records claim in any action alleging undue
delay in a record's release. Specifically, under the new test a
circuit court must determine if it officially sanctioned a
change in the parties' legal relationship before shifting
attorney fees. This will unnecessarily burden lower courts with
intensive factual disputes.
¶119 In detrimentally changing Wisconsin's public records
law, a majority of this court ignores the teachings of the past.
Although the court of appeals found the federal courts'
interpretation of the Freedom of Information Act (FOIA)
persuasive when trying to give meaning to the phrase "prevail in
whole or in substantial part,"7 it is important to recognize that
6 See Racine Educ. Ass'n v. Bd. of Educ. for Racine Unified
Sch. Dist., 129 Wis. 2d 319, 322, 385 N.W.2d 510 (Ct. App.
1986); Cornucopia Inst. V. U.S. Dept. of Agric., 560 F.3d 673,
676-77 (7th Cir. 2009).
7 See Racine Educ. Ass'n, 129 Wis. 2d 319.
12
No. 2019AP96.jjk
the state and federal statutes are far from identical.8 This
court must interpret the language of our state statute
independently, and thus we are given the opportunity to avoid
the mistakes made by the federal courts in interpreting what it
means to "prevail."
¶120 The United States Supreme Court interpreted
"prevailing party," in a non-public records context, to mean the
party that was awarded some relief by the court. Buckhannon,
532 U.S. at 603. That interpretation was read to alter FOIA's
similar "prevailing party" fee shifting provision. 5 U.S.C.
§ 552 (2018). In response to this judicial change, and to
protect the plain meaning of FOIA's fee shifting rule and
underlying purpose, Congress found it necessary to amend FOIA to
make it as clear as possible that the catalyst theory (the
federal counterpart to Wisconsin's causation test) still applied
to FOIA's prevailing party test. See First Amend. Coal. V. U.S.
Dept. of Just., 878 F.3d 1119, 1128 (9th Cir. 2017).
¶121 History repeats itself. This court commits the same
error as the federal courts, but does so egregiously within the
context of Wisconsin's public records laws and with full
Wisconsin's public records law is not modeled on FOIA and
8
no Wisconsin court has held that our interpretation of the
public records law is in lock-step with FOIA. Among other
significant differences, Wisconsin's law provides for mandatory
fee shifting while FOIA's fee shifting is optional, Wisconsin's
fee shifting provision references "the requestor" while FOIA
references "the complainant," and Wisconsin's law includes the
strong declaration of policy that is entirely absent from FOIA.
See Wis. Stat. §§ 19.31 & 19.37 as compared to 5 U.S.C. § 552.
13
No. 2019AP96.jjk
knowledge of the fallout.9 We should avoid repeating this error
and rely on the plain text. The plain text contemplates the
long-standing causation test that better realizes our public
records laws' textually expressed purpose and promotes judicial
efficiency.
B. Importance of Timely Access to Documents
¶122 Deviation from absolute governmental transparency is
permitted "when not detrimental to the public interest." State
ex rel. Youmans v. Owens, 28 Wis. 2d 672, 681, 137 N.W.2d 470(1965); see Wis. Stat. § 19.35(1)(a) (incorporating common law
principles construing access rights to government records). In
practice, governmental authorities are to perform a balancing
test to determine whether "the public interest would be
adversely affected" by the record's release. See State ex rel.
J. Co. v. Cnty. Ct. for Racine Cnty., 43 Wis. 2d 297, 306, 168
N.W.2d 836 (1969). Withholding a record requires exceptional
circumstances as "only in an exceptional case may access be
denied." § 19.31.
¶123 Here exceptional circumstances do not exist. At issue
is the City's denial of Friends' access to a proposed contract.
The proposed contract involved Big Top Baseball's plan to
repurpose Frame Park, a public space, to host a private for-
profit baseball team. In October 2017, Friends filed a public
records request with the City seeking the proposed contract.
Cf. Catherine R. Albiston & Laura Beth Nielsen, The
9
Procedural Attack on Civil Rights: The Empirical Reality of
Buchannon for the Private Attorney General, 54 UCLA L. Rev. 1087(2007).
14
No. 2019AP96.jjk
Later that same month, the City declared it was withholding the
proposed contract "for competitive and bargaining reasons" until
the Common Council had an opportunity to take action on it. The
next opportunity for the Common Council to take action on the
proposed contract was at the December 19 Common Council meeting.
Having been denied access to the record in time to meaningfully
engage and hold to account their representatives, Friends filed
a mandamus action the day before the meeting to preserve its
right to a remedy. The December 19 Common Council meeting
minutes indicate that the Council: (1) never entered into a
closed session to discuss the proposed contract; and (2) did not
vote to either approve or deny the contract terms. Unclear from
either the minutes or the record is to what extent the Council
discussed the proposed contract, if at all. The next day the
City released the proposed contract to Friends saying no further
competitive or bargaining concerns existed.
¶124 Friends was entitled to the release of the proposed
contract not only in spite of its draft status, but because of
it.10 The contract's non-final nature was significant. As long
There is no dispute that the "draft contract" here is a
10
"record" subject to disclosure under Wis. Stat. § 19.32(2).
This is because at the time of Friends' request, Big Top
Baseball had already seen the proposed contract and was actively
negotiating its terms. See Fox v. Bock, 149 Wis. 2d 403, 414,
438 N.W.2d 589 (1989) (clarifying that the statutory definition
of a "record" subject to release includes "a document prepared
for something other than the originator's personal use, whether
it is in preliminary form or stamped 'draft.'"). Here, despite
the majority/lead opinion's contrary assertion, it is
inconsequential to the balancing test that the Common Council
had not yet finalized the contract because finality is not
required.
15
No. 2019AP96.jjk
as the contract was not final, Friends had the opportunity to
meaningfully participate in the Common Council's review of the
document. Said differently, once the Common Council voted on
the proposed contract, Friends' participation would be moot.
This situation exemplifies why Wisconsin's public records law
demands that responses to record requests be made "as soon as
practicable and without delay." Wis. Stat. § 19.35(4)(a). Only
when citizens are timely informed about the actions of
government officials may they meaningfully participate and
create a more responsive representative government. This is
particularly true at the local government level where informed
citizens often have direct access to their officials and have
the ability to plead their case face-to-face. In other words,
the delayed release of public records "in effect eliminate[es]
that information from the public debate" thereby "defeat[ing]
the purpose . . . of providing the public with the greatest
information possible about the affairs of government" and
completely denying the opportunity to meaningfully participate
in government. State ex rel. Auchinleck v. Town of LaGrange,
200 Wis. 2d 585, 595, 547 N.W.2d 587 (1996).
¶125 Such detrimental denial occurs even when the delay is
short-lived. Here, Friends requested the proposed contract
ostensibly to evaluate how the possible terms of a privately run
baseball park operating on public park grounds would affect its
members as neighbors and taxpayers. For that review to be
meaningful, however, Friends needed the document before the
Common Council finalized the contract. Once the contract is
16
No. 2019AP96.jjk
final and binding, public input is rendered irrelevant. Because
Friends was "entitled to the greatest possible information
regarding the affairs of government," Wis. Stat. § 19.31(emphasis added), the City carries the burden to prove that it
did not unduly delay the release of the requested record.
C. The City Withholding the Proposed Contract Lacked
Justification
¶126 The City claims that "competitive or bargaining"
reasons were sufficiently exceptional to tip the balance in
favor of denying access to the proposed contract. This excuse
fails. The "competitive or bargaining" excuse derives from
Wisconsin's related open meetings law, which is incorporated
into the public records laws. See Wis. Stat. §§ 19.35(1)(a) &
19.85(1)(e). Under the open meetings law, access to a
government meeting may be denied (that is, a "closed session"
may be held) for "[d]eliberating or negotiating the purchasing
of public properties, the investing of public funds, or
conducting other specified public business, whenever competitive
or bargaining reasons require a closed session." § 19.85(1)(e).
Importantly, the government may withhold a record on this ground
"only if the authority . . . makes a specific demonstration that
there is a need to restrict public access at the time that the
request to inspect or copy the record is made." § 19.35(1)(a).
¶127 The City's "competitive or bargaining" rationale fails
for two reasons in this case. First, no competitive or
bargaining concerns remained at the time the City denied the
records request. Second, the City Council never entered into a
closed session during its December 19th meeting. Therefore, the
17
No. 2019AP96.jjk
City improperly balanced the public interest by concluding that
the proposed contract's release would have adversely affected
the public. See State ex rel. J. Co., 43 Wis. 2d at 306.
1. No competitive or bargaining reasons existed.
¶128 Let's turn first to the "competitive or bargaining"
interests that were absent at the time the proposed contract was
withheld. A competitive or bargaining concern relating to the
proposed contract may have arisen in one of three ways, none of
which apply here: (1) the City and another municipality could
have been competing for the same baseball team; (2) the City
could have been negotiating with more than one baseball
organization to host a team at Frame Park; or (3) the manner of
the City's negotiations with Big Top could require that the
proposed contract terms be secreted from Big Top to strengthen
the City's bargaining position.
¶129 Regarding the first possible concern, the City does
not allege that another municipality was competing to host the
same baseball team. Rather, the City claims that the mere
possibility of another municipality's interest in a baseball
team is enough to invoke the exception. And yet the City fails
to explain how another municipality's possible interest in a
baseball team implicates competitive or bargaining concerns
sufficient to justify nondisclosure. A mere possibility of
competition is a nebulous standard that could plausibly be
invoked for any public business the City conducts, a far cry
from the "exceptional case" that may justify a denial or delay
of a record request. See Wis. Stat. § 19.31.
18
No. 2019AP96.jjk
¶130 The second possible concern would emerge if the City
were negotiating with two or more baseball teams competing for
the Frame Park location. Under this scenario, the City would
arguably have an interest in concealing the details of any
proposed contracts from the competing teams so that the City
could negotiate the best terms from each team and ultimately
choose between them. But here, the record makes clear that the
City did not consider partnering with any baseball team besides
Big Top after August of 2016——long before the record request and
denial in October 2017.
¶131 The third possible concern would be that publicly
revealing a proposed contract's unapproved terms would
necessarily give Big Top access to those terms, weakening the
City's negotiating position. This too fails because, as a
conceded fact, Big Top already had access to the entire proposed
contract during their negotiations and had provided drafting
suggestions.
¶132 In sum, the competitive or bargaining benefit of
withholding the proposed contract from the public did not exist.
According to the City, the only relevant party not to have seen
the proposed contract before the December 19 meeting was the
Common Council, and the City cannot seek a bargaining advantage
against its own Common Council.
¶133 Curiously, although the Common Council never
substantially addressed the proposed contract or entered into a
closed session at the December 19 meeting, the City released the
proposed contract the day after the meeting indicating no
19
No. 2019AP96.jjk
further competitive or bargaining concerns existed. That all
but concedes there never were competitive or bargaining
concerns. If no competitive or bargaining concerns existed
after a meeting where the Common Council never meaningfully
addressed the proposed contract, then how could competitive or
bargaining concerns be implicated before the meeting took place?
¶134 The City argues that there were, nevertheless,
bargaining reasons for the Common Council to go into closed
session to review the proposed contract. Specifically, the City
argues that the Council's reactions to the proposed contract
terms would weaken its ability to further negotiate terms with
Big Top. But if the City wanted to hide the Common Council's
reactions to proposed contract terms, the solution was to have
the Common Council go into a closed session, not withhold
disclosure of the proposed contract Big Top had already seen and
red-lined. In short, no qualifying competitive or bargaining
concerns regarding the proposed contract exist in the record.
2. A closed session was not "required."
¶135 Even if competitive or bargaining concerns existed
prior to the December 19 meeting, the City still improperly
withheld the proposed contract because the Common Council never
entered into a closed session. The City's only reason for
denying disclosure applies "whenever competitive or bargaining
reasons require a closed session." Wis. Stat. § 19.85(1)(e)
(emphasis added). But the Common Council never entered into a
closed session at the December 19 meeting. How could a closed
20
No. 2019AP96.jjk
session have been required when the Common Council never met in
closed session?
¶136 The facts indicate an alternative motive for
withholding the proposed contract——the City sought to avoid
public input before the Common Council had the opportunity to
act on it. The City admitted as much in its letter explaining
that it would delay disclosure until "after the Common Council
has taken action on it." That is not a legal basis to withhold
a record from the public.
¶137 Because the City's alleged competitive or bargaining
concerns were speculative at best, and disproven by the record
at worst, the City improperly applied the balancing test. The
public's interest in disclosure outweighs the City's nonexistent
competitive or bargaining concerns; the disclosure was
unlawfully delayed.
II. CONCLUSION
¶138 The City improperly withheld the proposed contract
when it cited to nonexistent "competitive or bargaining"
concerns, and the public interest would not have been adversely
affected by the release of the proposed contract. Friends was
denied its statutory right to access documents that would have
informed its participation in government. As such, Friends
should have prevailed in its action against the City and been
awarded appropriate fees and costs. The unnecessarily narrow
"judicially sanctioned change" test for the award of attorney
fees is not supported by the statute's plain meaning and will
undercut the public records laws' entire purpose. We should
21
No. 2019AP96.jjk
remain with the causation test, which encourages citizens to
bring meritorious claims for the release of records while
discouraging gamesmanship on all sides. We should continue to
disinfect with sunshine.
¶139 I am authorized to state that Justices ANN WALSH
BRADLEY and REBECCA FRANK DALLET join this dissent.
22
No. 2019AP96.jjk
1