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

2022 WI 57

• Court: Wisconsin Supreme Court
• Decided: July 6, 2022
• Docket: 2019AP000096
• Status: Published

Opinion

2022 WI 57

SUPREME 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 831 PDC 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 57 NOTICE 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.

2 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

3 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.").

15 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").

16 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

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

11 No. 2019ap96.rgb

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

12 No. 2019ap96.rgb

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 13 No. 2019ap96.rgb

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 14 No. 2019ap96.rgb

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.

15 No. 2019ap96.rgb

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. 16 No. 2019ap96.rgb

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 18 No. 2019ap96.rgb

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,

19 No. 2019ap96.rgb

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. 21 No. 2019ap96.rgb

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)).

22 No. 2019ap96.rgb

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

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

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

26 No. 2019ap96.rgb

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

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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

will award attorney's fees to the prevailing party>. — 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

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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 No. 2019ap96.rgb

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.

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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[.]").

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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).

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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

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."

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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 No. 2019ap96.rgb

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.

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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.

¶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 No. 2019ap96.rgb

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 No. 2019AP96.jjk

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 No. 2019AP96.jjk

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

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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

9 No. 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

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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.

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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.

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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).

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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

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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