Lassa v. Rongstad

2006 WI 105, 718 N.W.2d 673, 294 Wis. 2d 187, 2006 Wisc. LEXIS 397

• Court: Wisconsin Supreme Court
• Decided: July 13, 2006
• Docket: 2004AP377
• Status: Published

Opinions

ANN WALSH BRADLEY, J.

¶ 1. This case comes to us on certification from the court of appeals. It requires that we address the propriety of discovery and contempt sanctions. Although the underlying defamation lawsuit has been dismissed with prejudice, we must nevertheless address on appeal issues that arose while the defamation case was pending.

¶ 2. The underlying defamation suit was brought by Julie Lassa against Todd Rongstad and others, including unknown defendants, based on a political mailer that criticized Lassa. An organization headed by Rongstad, the Alliance for Working Wisconsin, sent the mailer. Rongstad, along with his company, the Valkyrie Group, LLC, appeals the circuit court judgment adopting the parties' settlement agreement, under which Lassa agreed to dismiss her claim with prejudice and Rongstad agreed to pay $65,000 in attorney's fees and forfeitures as sanctions for failing to comply with discovery orders.¹

¶ 3. Rongstad asserts that the sanctions in this case cannot stand for essentially four reasons:

(A) The circuit court erroneously exercised its discretion by compelling discovery and imposing sanctions over his claim of constitutional privilege before considering whether Lassa's complaint stated a claim upon which relief could be granted;

(B) The circuit court incorrectly applied the constitutional balancing test under NAACP v. Alabama, 357 U.S. 449 (1958), and other cases interpreting it;

(C) Rongstad made a "substantiated assertion of privilege" under Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999), a case involving expert witness privilege, thus providing him with justification for failing to comply with the circuit court's discovery orders; and

(D) The severity of the sanctions imposed bore no rational relationship to Rongstad's conduct or to the harm suffered by Lassa.

¶ 4. In addition, Rongstad argues that we should exercise our superintending authority to establish an interlocutory appeal as a matter of right in cases involving threatened sanctions for refusal to disclose information based upon claims of constitutional privilege.

¶ 5. We address the issues raised by Rongstad's arguments as follows:

(A) In defamation cases, circuit courts should ordinarily decide a pending motion to dismiss for failure to state a claim before sanctioning a party for refusing to disclose information that would identify otherwise-anonymous members of an organization. Under the circumstances here, however, the circuit court did not erroneously exercise its discretion in compelling discovery and imposing sanctions before deciding Rongstad's motion to dismiss.

(B) The circuit court properly rejected Rongstad's assertion of privilege under the balancing test of the NAACP line of cases because Rongstad failed to make the required preliminary factual showing to support his assertion.

(C) Alt has no applicability in this case. The showing that Rongstad had to make was the one required under NAACP, not a "substantiated assertion" of evidentiary privilege under Alt.

(D) We reject Rongstad's challenge to the severity of the $65,000 in attorney's fees and forfeitures because the circuit court did not set that amount — the parties did by stipulation. Rongstad cannot claim that the amount of $65,000 has no rational relationship to the harm suffered or that the court erroneously exercised its discretion in setting the amount. Rather, the issue of the amount of monetary sanctions was pending before the court when the parties stipulated to $65,000. We also determine that Rongstad's challenge to the sanction of a default judgment on liability is moot under the parties' settlement agreement.²

¶ 6. In addition, we decline to exercise our superintending authority to establish an interlocutory appeal as a matter of right in defamation cases involving discovery sanctions that raise questions of a constitutional privilege.³ Accordingly, we affirm the circuit court judgment.⁴

¶ 7. The Alliance for Working Wisconsin is a 501(c)(4) organization whose main purpose is "to educate the public about public policy issues related to business, taxes and families in Wisconsin on a national, state and local level." A few days before the general election in November 2002, the Alhance sent a mailer criticizing then-State Representative Lassa for alleged connections to then-State Senate majority leader Chuck Chvala.

¶ 8. Among other things, the mailer said that Lassa wanted to become a state senator, so she "hooked up" with Chvala. The mailer also stated that "[n]obody knows for sure what she had to promise to gain his approval."

¶ 9. At the time, Lassa was running for reelection to the Assembly. Also at that time, Chvala had just been charged with 20 felonies, including extortion, misconduct while in public office, and falsifying reports to the State Elections Board. The mailer made this apparent by including images of a newspaper clipping and Chvala's booking photograph.

¶ 10. The mailer concluded with this statement:

Extortion, misconduct in public office, pay to play, lying, cheating and stealing. Wisconsin politics has gone completely astray. Please call Julie Lassa... and the rest and ask them the tough questions — did you compromise your integrity, did you play along with an illegal game, did you misuse tax dollars to win elections?

And, most importantly, will you please clean up your act?

¶ 11. Lassa filed a defamation action against Rongstad, the Alliance, the Valkyrie Group, and five unknown "Doe" defendants in their individual capacities for their role in publishing and distributing the mailer.⁵ At the time, she was considering whether to run for her district's state senate seat, soon to be vacant. She immediately sought to depose Rongstad in order to ascertain the identities of the "Does" involved in the mailer. During Rongstad's deposition, Lassa asked him questions regarding who from the Alliance may have played a role in the mailer. Rongstad objected, refusing to answer a number of these and related questions and asserting a constitutional privilege.

¶ 12. The parties called the court to obtain a ruling on Rongstad's assertion of privilege. Rongstad argued that Lassa's questions pertained to the membership of the Alliance and therefore involved constitutionally-protected rights of free speech and freedom of association under the First and Fourteenth Amendments. He relied on a number of cases, including NAACP, in which the United States Supreme Court invalidated a discovery-sanction against the NAACP for refusing to disclose membership lists to the State of Alabama in the course of a discovery dispute. Under the principles in those cases, Rongstad contended, Lassa was not entitled to discover the identities of Alliance members.

¶ 13. The court ruled at a hearing the next day, February 4, 2003. It observed that the cases on which Rongstad relied required a preliminary factual showing of a reasonable probability that compelled disclosure of members' identities would subject them to threats, harassment, or reprisals from either government officials or private individuals. The court determined that Rongstad failed to make such a showing. Even if he had, the court determined, the Alliance members' associational rights were outweighed by other interests that the court was required to balance against the members' rights. These other interests, the court explained, included Lassa's interest in clearing her name and the state's interest in preventing fraud and libel, an interest that is heightened during election campaigns.

¶ 14. The court thus overruled Rongstad's constitutional objection to Lassa's questioning. It ordered Rongstad to answer all questions pertaining to the identity of individuals involved in the preparation, funding, or distribution of the mailer.

¶ 15. Although Rongstad's deposition continued, he moved the court to reconsider its February 4 order and submitted an affidavit in an apparent attempt to make the required factual showing. Specifically, Rong-stad averred that members of the Alliance had told him that if he was compelled to disclose the identity of members of the organization, they would no longer be interested in participating in the organization or any such organization for fear of public reprisal and potential legal action. The court again determined that Rongstad failed to make the required preliminary factual showing, deeming his affidavit conclusory and insufficient. Thus, the court denied Rongstad's motion to reconsider, and ordered Rongstad to submit to a continued deposition.

¶ 16. Rongstad also sought to challenge the circuit court's February 4 order in the court of appeals. He petitioned the court of appeals for interlocutory relief, claiming the circuit court committed error in rejecting his assertion of privilege under NAACP. Ultimately, however, he failed to pursue the appeal, and on March 4, 2003, the court of appeals dismissed his petition for leave to appeal after the time had lapsed for the filing of arguments.

¶ 17. While Rongstad's petition for interlocutory relief was pending, he filed a motion to dismiss for failure to state a claim on February 11, 2003. He argued in the motion that none of the communications in the mailer was capable of defamatory meaning, as required to survive a motion to dismiss. Within two days, the circuit court set a briefing schedule with reply briefs due on March 28. Rongstad did not object to this schedule or request a different schedule.

¶ 18. In the interim, the parties' discovery dispute continued. On February 21, Lassa filed a motion for "sanctions for failure to comply with court-ordered discovery," asserting that Rongstad had failed to comply with the court's previous orders. She requested that Rongstad be held in contempt and that the court impose forfeitures under Wis. Stat. § 804.12(2) (a)4 (2003-04) for any continuing violation of the court's orders.⁶ In addition, she requested an award of attorney's fees under § 804.12(2) (b) and a default judgment under § 804.12(2)(a)3.⁷

¶ 19. At a February 28, 2003 hearing on Lassa's motion, her attorney indicated that the governor had called a special election for April 1 to fill the open state senate seat and that Lassa had decided to run for the seat, making it especially important that she discover as soon as possible who was responsible for the mailer in order to clear her name. She asserted that Rongstad continued to refuse to answer questions concerning anyone who had funded the Alliance or was a member of the Alliance. Rongstad's counsel reiterated the constitutional issues involved and asserted that, in his view, Rongstad had complied with the court's discovery orders.

¶ 20. Adding to its previous orders, the circuit court ordered Rongstad to disclose the identity of anyone who had contributed $100 or more to the Alliance in 2002. The court postponed hearing Lassa's motion for sanctions, however, because of concerns as to whether Rongstad had been properly served with notice of the motion. Lassa re-filed her motion on March 3, 2003, asserting that Rongstad was in violation of the court's February 28 order in addition to its previous orders.

¶ 21. On March 11, the court heard the motion. It found that Rongstad intentionally failed to comply with the court's orders and that Rongstad was in contempt. The court noted it appeared that Rongstad had lied under oath and that he had given evasive answers designed to avoid providing the information ordered. It imposed a sanction of $32,587 in attorney's fees. In addition, it ordered that beginning March 13, Rongstad would pay a forfeiture in the amount of $1,000 per day until he had fully complied with the court's orders. The court declined to enter a sanction of default judgment against Rongstad, but stated that it would entertain a motion for default judgment on liability issues as a future sanction if Rongstad failed to comply with the court's discovery orders by April 4.

¶ 22. The parties' discovery dispute nonetheless continued and, on April 11, Lassa moved for default judgment against Rongstad on all liability issues, asserting that Rongstad remained in violation of the court's discovery orders. Rongstad filed a motion for relief from sanctions arguing, in contrast, that he was in compliance with the court's discovery orders because he provided Lassa with some documentation relating to contributions to the Alliance. In addition, he requested that the court address his pending motion to dismiss before proceeding on any other motions.

¶ 23. Consistent with Rongstad's request, the court addressed Rongstad's motion to dismiss before proceeding on the other pending motions. It denied the motion to dismiss on July 8, concluding that the mailer contained communications that were capable of a defamatory meaning.⁸

¶ 24. Several weeks later, on August 15, the circuit court addressed Rongstad's motion for relief from sanctions and Lassa's motion for a default judgment. The court began by thoroughly reviewing the history of the parties' discovery dispute. In a detailed oral decision, the court determined that Rongstad was not in compliance with the discovery orders and that he continued to be in contempt. In addition, the court found that Rongstad's conduct was egregious and in bad faith. The court denied Rongstad's motion for relief from sanctions and granted Lassa's motion for default judgment.

¶ 25. At a subsequent hearing, the court determined that attorney's fees remained an appropriate sanction. Lassa agreed to submit a new statement of attorney's fees for the court's approval, and Rongstad agreed to address the statement and object to fees he deemed unrelated to the discovery dispute. The court withheld decision on the final amount of attorney's fees and on the proper amount of forfeitures for further court proceedings.

¶ 26. Shortly thereafter, the parties instead submitted a settlement agreement to the court. It provided that Lassa would agree to dismiss the underlying defamation claim with prejudice and that Rongstad would consent to a judgment against him for a stipulated amount of $65,000, with $43,000 considered to be contempt-related attorney's fees and $22,000 considered to be forfeitures payable to the school fund. The agreement also stated that Rongstad reserved certain rights to appeal.

¶ 27. The circuit court entered a judgment in accordance with the parties' agreement. Rongstad appealed, and we accepted the court of appeals' certification of the case pursuant to Wis. Stat. § (Rule) 809.61.

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¶ 28. Because the parties agreed to dismiss the defamation claim underlying this case, we begin with a brief discussion of why this court has jurisdiction over Rongstad's appeal.⁹ Stated succinctly, the reason is straightforward: Rongstad is aggrieved by the final judgment entered upon the parties' settlement agreement because it required him to pay $65,000 in sanctions.

¶ 29. By the time the parties agreed to settle their case and dismiss the underlying defamation claim, the circuit court had already imposed discovery and contempt sanctions on Rongstad. More specifically, at the time Rongstad entered into the settlement agreement, the circuit court had imposed over $30,000 in attorney's fees as a discovery sanction, had imposed a $1,000 per day fine for continuing contempt, and had granted Lassa's motion for default judgment. Rongstad was, and remains, aggrieved by the circuit court's orders for discovery and contempt sanctions. Those orders, in turn, are properly before this court as part of Rongstad's appeal from the final judgment entered on the parties' settlement agreement. See Wis. Stat. (Rule) § 809.10(4).¹⁰

¶ 30. Although Rongstad advances several grounds for circuit court error, his central contention is that the sanctions orders were unlawful because they were imposed over his assertion of a constitutional privilege. We must address both this contention and other arguments that Rongstad advances in order to decide the propriety of the sanctions.

¶ 31. NAACP and Alt, two cases on which Rong-stad relies, are examples of other instances in which courts were required to address the merits of an assertion of privilege in order to determine the propriety of discovery sanctions. NAACP, 357 U.S. at 460-66; Alt, 224 Wis. 2d at 84-95. In both cases, the court could not decide whether the sanctions orders were lawful without addressing the assertion of privilege over which the sanctions were imposed. Likewise, here, the validity of the sanctions depends on whether they were properly imposed in light of an asserted privilege.

¶ 32. Also somewhat analogous is Jandrt v. Jerome Foods, Inc., 227 Wis. 2d 531, 597 N.W.2d 744 (1999). In Jandrt, sanctions for maintaining a frivolous lawsuit were at issue. Jandrt, 227 Wis. 2d at 539. The underlying suit was voluntarily dismissed, but the parties continued to litigate the question of frivolousness. Id. at 538. Obviously, the court had to address the merits of maintaining the underlying claim — even though it was dismissed — in order to address the propriety of the sanctions. See id. at 572-73.

¶ 33. Although here we need not address the merits of the plaintiffs defamation claim in order to decide the propriety of sanctions, we must address the assertion of privilege, just as in NAACP and Alt. Rongstad's assertion of privilege is not a defense to Lassa's defamation claim. Rather, it is a defense to the discovery and contempt sanctions.¹¹

¶ 34. Of course, an order or judgment must be appealable for an appellate court to exercise jurisdiction, and "consent of the parties involved cannot confer jurisdiction where none exists." Heritage Mut. Ins. Co. v. Thoma, 45 Wis. 2d 580, 587, 173 N.W.2d 717 (1970). Nonetheless, parties sometimes settle issues in a controversy, as here, such that the only question or questions remaining are ripe for appeal. Similarly, issues presented on appeal are often at least partly the product of one or more stipulations in the circuit court. See, e.g., Petta v. ABC Ins. Co., 2005 WI 18, ¶ 32, 278 Wis. 2d 251, 692 N.W.2d 639 (in which this court's decision was based, in part, on a stipulation that the plaintiffs had not been made whole by a lump-sum settlement); see also, e.g., Strenke v. Hogner, 2005 WI 25, ¶¶ 7-8, 279 Wis. 2d 52, 694 N.W.2d 296 (parties stipulated to liability but disputed damages); Weber v. White, 2005 WI 63, ¶ 5, 272 Wis. 2d 121, 681 N.W.2d 137 (parties stipulated that one party was 100% negligent in causing an accident).

¶ 35. Parties may not manufacture artificial issues for appeal. Moreover, a judgment or order must be "final" as defined by rule in order to be appealable as a matter of right. Wis. Stat. § (Rule) 808.03(1); see also Cascade Mountain, Inc. v. Capitol Indent. Corp., 212 Wis. 2d 265, 269, 569 N.W.2d 45 (Ct. App. 1997) (party "cannot, by stipulating to the entry of a conditional judgment, obtain a mandatory appeal of an interlocutory order"). Here, however, the parties' settlement and the judgment entered upon it do not implicate manufactured issues. They also do not run afoul of the finality requirement.¹²

¶ 36. Having briefly addressed why this court has jurisdiction over Rongstad's appeal, we turn to the merits of Rongstad's arguments. His arguments raise issues involving sanctions for a party's failure to comply with discovery orders and a related contempt of court. Appellate courts ordinarily review circuit court decisions pertaining to such matters for an erroneous exercise of discretion. Schultz v. Sykes, 2001 WI App 255, ¶ 8, 248 Wis. 2d 746, 638 N.W.2d 604. However, we independently determine any underlying questions of law. See Oliveto v. Circuit Court, 194 Wis. 2d 418, 429, 533 N.W.2d 819 (1995); Evans v. Leubke, 2003 WI App 207, ¶ 16, 267 Wis. 2d 596, 671 N.W.2d 304. The lawfulness of the discovery and contempt sanctions in this case ultimately turns on a question of law subject to independent appellate review: whether Rongstad made the required preliminary factual showing that meets the standard for asserting a constitutional privilege under NAACP. See Vultaggio v. Yasko, 215 Wis. 2d 326, 330, 572 N.W.2d 450 (1998); State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996).

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A

¶ 37. We begin by addressing Rongstad's assertion that the circuit court erroneously exercised its discretion by compelling discovery and imposing sanctions over his claim of constitutional privilege before considering whether Lassa's complaint stated a claim upon which relief could be granted. Rongstad argues that, in light of the constitutional questions raised by his assertion of privilege, the court should have first decided the motion to dismiss.

¶ 38. Rongstad is joined in this argument by amici American Civil Liberties Union of Wisconsin Foundation, Wisconsin Newspaper Association, Wisconsin Broadcasters Association, Wisconsin Manufacturers & Commerce, Wisconsin Realtors Association, Wisconsin Bankers Association, and Wisconsin Builders Association.¹³ They assert that, given the constitutional rights at stake, a public figure such as Lassa should not be allowed discovery in a defamation action until any pending motion to dismiss has been resolved.

¶ 39. Lassa does not seem to oppose such a procedure in general. Rather, she maintains that based on the particular facts here, the circuit court did not erroneously exercise its discretion by failing to decide Rongstad's motion to dismiss before imposing discovery sanctions.

¶ 40. Cases like the one before us test the bounds of the rights to free speech and freedom of association in the face of other important rights and interests. "Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." NAACP, 357 U.S. at 462. Likewise, the decision to remain anonymous is an aspect of the freedom of speech protected by the First Amendment. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995).

¶ 41. At the same time, individual citizens, including candidates for public office, have an interest in being free from defamation. Those who have been defamed have an important interest in clearing their names. In addition, the state has a legitimate interest in preventing fraud and libel. McIntyre, 514 U.S. at 349. This interest "carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large." Id. Stated another way, the voting public has a weighty interest in accurate information about candidates for public office. The right of voters to get accurate information is essential to the election process. While non-defamatory, protected speech may often further the voters' interest, defamatory speech assuredly undermines it.¹⁴

¶ 42. Certainly, a defamation plaintiff should not be able to employ the rules of discovery to obtain the identity of an anonymous political speaker simply by filing a complaint that is facially unsustainable. The speaker has most likely chosen anonymity for a reason. If that reason is consistent with First Amendment principles, the use of discovery to uncover the speaker's identity may chill the exercise of the right to free speech. Such a use of the discovery process also violates the basic principle that litigants are not entitled to discovery that causes unreasonable annoyance, embarrassment, or oppression. See Wis. Stat. § 804.04(3); Paige K.B. ex rel. Peterson v. Steven G.B., 226 Wis. 2d 210, 232, 594 N.W.2d 370 (1999).¹⁵

¶ 43. Yet, the constitution cannot work as an absolute bar to a plaintiffs interest in discovering the identity of a speaker who has actually defamed her. If it did, anonymous speakers would be free to make false statements causing harm to others no matter how malicious or damaging. Freedom of speech has its limits. It does not embrace defamation. Ashcroft v. Free Speech Coal., 535 U.S. 234, 245-46 (2002).

¶ 44. One way to reconcile all of these competing rights and interests, according to Rongstad and the amici, is to require that circuit courts decide whether a defamation complaint states a claim on which relief may be granted before imposing sanctions for the refusal to disclose information based on the type of constitutional privilege Rongstad has asserted. Such a procedure, they argue, helps ensure protection of the constitutional rights at stake.

¶ 45. On a motion to dismiss, the court must determine whether a communication is "capable of a defamatory meaning." Starobin v. Northridge Lakes Dev. Co., 94 Wis. 2d 1, 10, 287 N.W.2d 747 (1980). This means that if the communication cannot reasonably be understood as defamatory, then the plaintiff has failed to state a claim, and the motion to dismiss must be granted. Id.; see also Tatur v. Solsrud, 174 Wis. 2d 735, 740, 498 N.W.2d 232 (1993); Frinzi v. Hanson, 30 Wis. 2d 271, 276, 140 N.W.2d 259 (1966).

¶ 46. Few appellate courts have been asked to determine whether such a procedure should be followed, although the question has reached at least one other state supreme court. In Doe v. Cahill, 884 A.2d 451 (Del. 2005), the Delaware Supreme Court was confronted with the question of what procedure to follow when a public figure defamation plaintiff seeks to discover the identity of an anonymous speaker criticizing the plaintiff via internet postings.

¶ 47. The Delaware court was presented with a range of possible procedures to use in order to strike the proper balance between the competing rights and interests. The court explained:

Before this Court is an entire spectrum of "standards" that could be required, ranging (in ascending order) from a good faith basis to assert a claim, to pleading sufficient facts to survive a motion to dismiss, to a showing of prima facie evidence sufficient to withstand a motion for summary judgment, and beyond that, hurdles even more stringent.

Cahill, 884 A.2d at 457.

¶ 48. The court thoroughly described the particular concerns with which it was faced:

We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously. The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all. A defamation plaintiff, particularly a public figure, obtains a very important form of relief by unmasking the identity of his anonymous critics. The revelation of identity of an anonymous speaker "may subject [that speaker] to ostracism for expressing unpopular ideas, invite retaliation from those who oppose her ideas or from those whom she criticizes, or simply give unwanted exposure to her mental processes." Plaintiffs can often initially plead sufficient facts to meet the good faith test... even if the defamation claim is not very strong, or worse, if they do not intend to pursue the defamation action to a final decision....

Indeed, there is reason to believe that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics. As one commentator has noted, "[t]he sudden surge in John Doe suits stems from the fact that many defamation actions are not really about money." "The goals of this new breed of libel action are largely symbolic, the primary goal being to silence John Doe and others like him." This "sue first, ask questions later” approach, coupled with a standard only minimally protective of the anonymity of defendants, will discourage debate on important issues of public concern as more and more anonymous posters censor their online statements in response to the likelihood of being unmasked.

Id. at 457 (footnotes omitted; citations omitted).

¶ 49. Given these concerns, the Cahill court concluded that "even the more stringent motion to dismiss standard, the middle option in the spectrum of standards from which we may choose, falls short of providing sufficient protection to a defendant's First Amendment right to speak anonymously." Id. at 458. Thus, the court held that "before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion." Id. at 460.

¶ 50. Although we share the Cahill court's concerns and think them fully applicable to the case at bar, we reach a somewhat different conclusion. It appears that Delaware, unlike Wisconsin, does not require particularity in the pleading of defamation claims. See id. at 458; cf. Wis. Stat. § 802.03(6).¹⁶ The court in Cahill noted that "even silly or trivial libel claims can easily survive a motion to dismiss where the plaintiff pleads facts that put the defendant on notice of his claim, however vague or lacking in detail these allegations may be." Cahill, 884 A.2d at 458.

¶ 51. In addition, the Delaware court emphasized that one of the most important aspects of testing a defamation claim by summary judgment is that the claim must be "capable of a defamatory meaning" in order to survive summary judgment. Id. at 463. This, of course, is the same inquiry that is the focus of a motion to dismiss a claim for defamation in Wisconsin. See, e.g., Starobin, 94 Wis. 2d at 10.

¶ 52. Accordingly, we determine that under Wisconsin law, requiring the circuit court to decide a motion to dismiss before compelling disclosure and imposing sanctions best addresses the concerns expressed in Ca-hill. When faced with an assertion of constitutional privilege against disclosure of information identifying otherwise-anonymous organization members, the circuit court should decide a pending motion to dismiss for failure to state a claim before sanctioning the party for refusing to disclose that information.

¶ 53. Having determined that, prospectively, this is the procedure that circuit courts should ordinarily follow, we nonetheless agree with Lassa that the circuit court did not erroneously exercise its discretion here even though it imposed some discovery sanctions before addressing Rongstad's motion to dismiss.

¶ 54. Early in the litigation, Rongstad informed the circuit court that he intended to bring a motion to dismiss. He did not, however, argue that the court was required to decide the motion before discovery proceeded. When Rongstad filed his 17-page motion and supporting brief, he also advanced no such argument. Likewise, when the circuit court made its discovery rulings and when it initially imposed sanctions on March 11, 2003, Rongstad did not present the argument.

¶ 55. The court issued a briefing schedule on Rongstad's motion to dismiss within two days of the date that Rongstad filed the motion, February 11, 2003. Under the briefing schedule, reply briefs were due approximately six weeks later, yet Rongstad did not file any objection to the schedule or request an accelerated schedule. In addition, he did not file any objection when his insurer moved on February 19 to intervene and stay the merits of the case pending resolution of coverage issues.

¶ 56. At the very earliest, it was not until April 30, 2003, that Rongstad first apprised the court of the argument he now advances, that the court was required to decide his motion to dismiss before compelling discovery. On that date, Rongstad filed a letter with the court in which he requested that it address his motion to dismiss before resolving any other pending motions because this would "eliminate the need for any further action." In our view, however, even this April 30 letter did not apprise the circuit court of the argument Rongstad now makes.

¶ 57. In any event, by the time of Rongstad's April 30 letter, the court had already compelled discovery and ordered sanctions. It then decided his motion to dismiss before proceeding to impose further sanctions. The court imposed no additional sanction until after it denied the motion.

¶ 58. In short, Rongstad did not raise his argument that the circuit court was required to address his motion to dismiss before it compelled discovery until after the court imposed discovery sanctions. Moreover, the argument that the constitutional dimension of the parties' discovery dispute mandated this course of action was a relatively novel one considering existing law at the time.¹⁷ Given all of the circumstances, the court did not erroneously exercise its discretion in compelling discovery and imposing some sanctions without first deciding Rongstad's motion.¹⁸

B

¶ 59. We turn to Rongstad's argument that the circuit court incorrectly applied the constitutional balancing test under cases such as NAACP The United States Supreme Court's decision in NAACP has come to stand for a balancing test that applies to cases in which an organization or its members or contributors assert a First Amendment privilege in the face of compelled disclosure of member identities or related information. See, e.g., Black Panther Party v. Smith, 661 F.2d 1243, 1267-68 (D.C. Cir. 1981); Crocker v. Revolutionary Communist Progressive Labor Party, 533 N.E.2d 444, 447-48 (Ill. Ct. App. 1988).¹⁹ As the following discussion of NAACP and other cases shows, the party seeking to assert the privilege must make a preliminary factual showing that at least demonstrates a reasonable probability of an actual chilling effect on First Amendment rights.

¶ 60. In NAACP, the attorney general of Alabama brought suit against the NAACP alleging that it was unlawfully conducting business in that state. NAACP, 357 U.S. at 452. The issue on appeal involved the constitutionality of a large monetary contempt sanction against the NAACP for its failure to comply with a discovery order requiring disclosure of its membership lists. Id. at 453.

¶ 61. The Court first recognized that the order "must be regarded as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association." Id. at 462. In determining that the order was likely to chill NAACP members' associational rights, the Court referred to the NAACP's "uncontroverted showing that on past occasions revelation of the identity of rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility." Id. The Court then weighed the likelihood of such a restraint on the exercise of members' rights against the state's asserted interests in obtaining disclosure of member identities. See id. at 463-65.²⁰

¶ 62. Relying on NAACP, the Court in Buckley v. Valeo, 424 U.S. 1 (1976), elaborated on what is required under the first part of the balancing test, this time in the context of contributions to political parties. In Buckley the Court explained that there must be a factual showing sufficient to demonstrate a "reasonable probability" of threats, harassment, or reprisals, and the Court gave examples of the proof necessary:

The evidence offered need show only a reasonable probability that the compelled disclosure . .. will subject [contributors] to threats, harassment, or reprisals from either Government officials or private parties. The proof may include, for example, specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself. A pattern of threats or specific manifestations of public hostility may be sufficient.

Id. at 74; see also Black Panther Party, 661 F.2d at 1267-68 C'[T]he litigant seeking protection need not prove to a certainty that its First Amendment rights will be chilled by disclosure. It need only show that there is some probability that disclosure will lead to reprisal or harassment.").

¶ 63. The Court was thus careful in Buckley to ensure that the burden on the party seeking to assert a privilege was not insurmountably high. At the same time, the Court recognized, "[w]here it exists[,] the type of chill and harassment identified in NAACP v. Alabama can be shown." Buckley, 424 U.S. at 74.

¶ 64. Thus, "[a] subjective fear of reprisal is insufficient to invoke first amendment protection against a disclosure requirement." Dole v. Local Union 375, 921 F.2d 969, 973 (9th Cir. 1990). "The proof offered must be 'objective' — an allegation of 'apprehension' or subjective deterrence of membership or contribution is not sufficient." O'Neal v. United States, 601 F. Supp. 874, 879 (N.D. Ind. 1985) (citations omitted); see also Laird v. Tatum, 408 U.S. 1, 13-14 (1972) ("Allegations of a subjective 'chill'" are not an adequate substitute for a claim of specific present objective harm ....).

¶ 65. The court in Brock v. Local 375, 860 F.2d 346 (9th Cir. 1988), aptly summarizing much of the applicable case law, observed as follows:

Many courts have grappled with the sufficiency of such a showing. A factor emphasized in each of those decisions is the need for objective and articulable facts, which go beyond broad allegations or subjective fears.

Brock, 860 F.2d at 350 n.l (citations omitted).

¶ 66. Here, Rongstad relies primarily on his own affidavit, consisting of a total of five short statements. Specifically, he averred as follows:

1. That I am a board member and president of the Alliance for Working Wisconsin.

2. That in that position, I had numerous conversations with members of the association over the last several years and recently specifically related to the lawsuit at issue.

3. That as a board member and president of the association, I and the Alliance have previously guaranteed confidentiality with respect to the identity of members and have honored that throughout the course of my work with the Alliance.

4. That members have told me that if I am compelled to disclose the identity of members of the organization, that they will no longer be interested in participating in the organization or any such organization, for fear of public reprisal and potential legal action.

5. That disclosure of the names and the attendant loss of confidentiality will likely ruin my business and force me to find a new career.

¶ 67. Rongstad's affidavit is insufficient to establish the required preliminary showing under NAACP and its progeny. The affidavit provides no evidence of particular instances of past or present threats, harassment, or reprisals. See Buckley, 424 U.S. at 74; NAACP, 357 U.S. at 462. It also does not indicate a pattern of threats or specific manifestations of public hostility against the Alliance or similar groups.

¶ 68. Although a record of past harassment or reprisals is not always necessary, Rongstad has not otherwise established a reasonable probability of such chilling effects. At most, he established precisely what is ordinarily deemed insufficient: a general statement of subjective fear of reprisal without any basis in objective, particularized facts. Only one of the five statements in his affidavit is directly related to the substance of the required showing, and that statement establishes only that some unspecified number of members have told him they will no longer be interested in participating in the Alliance or other organizations like it based on general fears of reprisal.

¶ 69. We view the case of Friends Social Club v. Secretary of Labor, 763 F. Supp. 1386 (E.D. Mich. 1991), as persuasive in light of the circumstances here. In Friends Social Club, organization members submitted affidavits stating predictions and fears of harassment, including recrimination by political opponents. Id. at 1394. The affidavits suggested that disclosure of members' identities might discourage members from further participation. Id. The court in Friends Social Club, like the circuit court here, deemed such affidavits conclu-sory and insufficient. Id. at 1395. According to the Friends Social Club court, the affidavits fell "far short of sustaining a prima facie case" because they did not "set forth an objective factual basis for [the] subjective fears of reprisal from any particular person." Id.

¶ 70. Conversely, a comparison of the facts here to a number of other cases in which the factual showing was deemed sufficient underscores that Rongstad has failed to make the required showing. See Brown v. Socialist Workers 74 Campaign Comm., 459 U.S. 87, 98-99 (1982) (evidence of threatening phone calls and hate mail, burning of group's literature, destruction of members' property, police harassment, firing of shots at the group's office, and termination of members' employment was sufficient); Familias Unidas v. Briscoe, 619 F.2d 391, 395-96, 399 (5th Cir. 1980) (evidence of previous arrests, letters warning of liability for fines, and other public opprobrium and threats of reprisals, was sufficient); Wisconsin Socialist Workers 1976 Campaign Comm. v. McCann, 433 F. Supp. 540, 547-48 (E.D. Wis. 1977) (series of affidavits showing potential contributors' reluctance to contribute, specific instances of harassment, and widespread surveillance were sufficient); In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 376-77 (Tex. 1998) (testimonial and other evidence was sufficient when it demonstrated specific instances when individuals opposed to group had boycotted affiliated members or encouraged others to do the same); Crocker, 533 N.E.2d at 447-48 (allegations of surveillance, intimidation, job firings, disciplinary actions, and other reprisals were sufficient where the party seeking discovery had position of authority over party asserting privilege).²¹

¶ 71. Because we determine that Rongstad failed to make the required preliminary factual showing, we need not reach the question of whether there are compelling interests here that would outweigh a constitutional privilege. The circuit court correctly rejected Rongstad's assertion of privilege under NAACP and its progeny. Rongstad's assertion of privilege was therefore not an impediment to discovery sanctions in this case.²²

¶ 72. Before turning to Rongstad's next argument, we pause to address the dissent's treatment of NAACP and its progeny. Deeming those cases inapplicable, the dissent dispenses with decades of constitutional law. Dissent, ¶ 158; see also dissent, ¶ 146. Worth noting is that this is the case law on which Rongstad has principally relied throughout this litigation. Tellingly, the dissent finds it necessary to evade these cases and their requirement of a preliminary factual showing in order to reach its result.

¶ 73. As window dressing for its result, the dissent then raises the specter of "SLAPP" suits, deeming this case a "SLAPP suit masquerading as a defamation case."²³ Dissent, ¶ 108; see also dissent, ¶¶ 159-160. In characterizing this case as a "SIAPP" suit, the dissent seemingly takes on the role of advocate. Rongstad has not characterized this case as a SLAPP suit, has not advanced that we should address it as such, and has not asserted that addressing it as such makes a difference in the constitutional calculus.²⁴ Unlike the dissent, we address the arguments that Rongstad makes, and we adhere to the applicable law.

C

¶ 74. We next turn briefly to Rongstad's argument that he made a "substantiated assertion of privilege" under Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999). He argues that Alt should apply where a defendant in a defamation action asserts a privilege against disclosure based on the First Amendment.

¶ 75. In Alt, this court concluded that a witness has a qualified privilege to refuse to provide expert testimony, absent compelling circumstances. Id. at 89, 92. We stated that "[a]lthough the circuit court should not rely on the judgment of the attorneys involved for their self-interested determination that a privilege exists, a substantiated assertion of privilege is substantial justification for failing to comply with an order to provide or permit discovery." Id. at 94 (citation omitted). Thus, under Alt, a bald assertion of an evidentiary privilege to refuse to provide expert testimony will not suffice. Rather, the assertion must be "substantiated."

¶ 76. The court in Alt did not define what is meant by a "substantiated" assertion of privilege against providing expert testimony. It is apparent, however, that by requiring that the assertion be substantiated, the court was seeking to effectuate the necessary balance between the right of expert witnesses to be free from testifying against their will and the needs of the court and litigants for testimony. See id. at 88. The requirement of a "substantiated" assertion of the evidentiary privilege discourages illegitimate invocation of the privilege.

¶ 77. In cases involving discovery orders in the face of an assertion of constitutional privilege as here, the balancing test under NAACP governs. That balance, which involves considerations different from those in Alt, is effectuated by the standards set forth in NAACP and the cases interpreting it. Thus, we determine that Alt has no applicability here. The showing that Rongstad had to make was the one required under NAACP and its progeny, not a "substantiated assertion" of an evidentiary privilege under Alt.

D

¶ 78. We now turn to Rongstad's assertion that the severity of the sanctions in this case bore no rational relationship to his conduct or to any harm suffered by Lassa. More specifically, Rongstad argues that the $65,000 in monetary sanctions ($43,000 in attorney's fees and a $22,000 forfeiture payable to the school fund) "bears no rational relationship to Rongstad's refusal to disclose political associations for a mere two months" in light of his claim of privilege and his attempt to seek interlocutory appeal. We reject this argument.

¶ 79. Rongstad's argument incorrectly assumes that the $65,000 in monetary sanctions is an amount of sanctions set by the circuit court, when in fact it is the amount to which the parties stipulated in their settlement agreement. The circuit court never made a final ruling on the amount of monetary sanctions. Rather, the parties stipulated to this amount of sanctions while the issue of the amount of monetary sanctions was still pending before the court. We will not review the amount of monetary "sanctions" agreed to by the parties for an erroneous exercise of circuit court discretion. The circuit court never had the opportunity to exercise its discretion as to the amount of monetary sanctions it ultimately deemed proper.

¶ 80. Rongstad also asserts that a sanction of a default judgment on liability issues is too severe and bears no rational relationship to the harm suffered. We question whether the parties' settlement agreement and the judgment entered pursuant to that agreement reflect an intent to permit Rongstad to appeal the propriety of the judgment on liability.²⁵ Regardless, we determine that the agreement and the judgment entered pursuant to the agreement, which dismissed Lassa's claim with prejudice, bar Rongstad from challenging the propriety of the default judgment on liability. The effect of the default judgment on liability is moot under the parties' agreement and the judgment dismissing Lassa's claim with prejudice.

¶ 81. We once again pause to address the dissent, which protests that "it is draconian to subject Rongstad to the heavy, heavy financial sanctions at issue in this case." Dissent, ¶ 183. Lost on the dissent is that the parties stipulated to the amount of monetary sanctions.

¶ 82. More importantly, in labeling the sanctions "draconian," the dissent turns a blind eye to facts of record that may have justified a circuit court award of monetary sanctions equal to or greater than the amount to which the parties agreed. For example, the circuit court judge who initially presided in this case observed: "Seldom have I seen such an abuse." The court also found that Rongstad had lied under oath, was "highly evasive," and had "engaged in a well-planned effort to cover up" his activities. Similarly, the circuit court judge who later presided concluded that Rongstad's conduct was egregious and in bad faith.

¶ 83. The dissent carefully avoids giving any truck to these facts, instead portraying Rongstad as the victim of a biased circuit court, of a "shrewd and savvy" legislator (Lassa), and now of this court. Dissent, ¶¶ 129, 153, 162, 164 & n.ll, 170, 172, 179, 181-185. Yet, nothing in the record calls into question the impartiality of the circuit court. Likewise, we have taken pains in this opinion to avoid portraying either Lassa or Rongstad in an unfavorable light and to avoid suggesting an improper motive on the part of one party or the other. Perhaps if the dissent had more facts or more law on its side, it could have done the same. Instead, the dissent brings the following quotation to mind: "When you have the facts on your side, argue the facts. When you have the law on your side, argue the law. When you have neither, holler."

E

¶ 84. Finally, we turn to address the question of whether we should exercise our superintending authority to establish an interlocutory appeal as a matter of right in defamation cases involving discovery sanctions that raise questions of a constitutional privilege. Our exercise of the superintending power is limited to situations in which the "necessities of justice" require it. Arneson v. Jezwinski, 206 Wis. 2d 217, 231, 556 N.W.2d 721 (1996). Moreover, requiring automatic grants of interlocutory appeal pursuant to this power is generally disfavored. State ex rel. Hass v. Wisconsin Court of Appeals, 2001 WI 128, ¶ 24, 248 Wis. 2d 634, 636 N.W.2d 707.

¶ 85. Rongstad argues that this case should be controlled by Arneson, in which this court concluded that the court of appeals should as a matter of course grant a petition for an interlocutory appeal from a circuit court order denying a state official's claim of qualified immunity in a 42 U.S.C. § 1983 action. Arneson, 206 Wis. 2d at 219-20. We determined that such a petition would always fall within the criteria for leave to appeal under Wis. Stat. § (Rule) 808.03(2)(a) and (b).²⁶ Id. at 229.

¶ 86. In other contexts, however, the court has declined to exercise its superintending authority to require interlocutory appeals under circumstances that may be viewed as equally compelling to circumstances such as those here. See Hass, 248 Wis. 2d 634, ¶¶ 2, 20; State v. Jenich, 94 Wis. 2d 74, 288 N.W.2d 114, modified on reconsideration, 94 Wis. 2d 74, 97A-97B, 292 N.W.2d 348 (1980). In Jenich, for example, we declined to direct the court of appeals to hear permissive appeals denying motions to dismiss based on double jeopardy claims despite the "serious constitutional questions" raised by such claims. Jenich, 94 Wis. 2d at 97A n.l, 97B. Rather, we were content to urge the court of appeals to carefully exercise its discretion in considering whether to hear such appeals. Id. at 97B.

¶ 87. Here, we follow our approach in Jenich, mindful of the rule that automatic grants of interlocutory appeal are generally disfavored. Mandatory interlocutory review of orders that compel or deny discovery when an assertion of constitutional privilege is raised in a defamation case is not foreordained by Arneson or otherwise dictated by the necessities of justice. Cf. Reise v. Board of Regents, 957 F.2d 293, 295 (7th Cir. 1992) ("[E]ven orders to produce information over strong objections based on privilege are not appealable, despite the claim that once the cat is out of the bag the privilege is gone.").

¶ 88. Although defamation cases like the one before us may raise serious constitutional questions, the constitutional questions raised in double jeopardy cases are equally serious. The constitutional rights at stake are adequately protected by the court of appeals' careful consideration of petitions for leave to appeal and by any other review procedure available, such as a petition for a supervisory writ. "[0]rdinary judicial review procedures suffice as long as the courts remain sensitive to the need to prevent First Amendment harms and administer those procedures accordingly." City of Littleton v. Z.J. Gifts D-4, LLC, 541 U.S. 774, 781-82 (2004).²⁷

¶ 89. Accordingly, we decline to exercise our superintending authority to establish a right to interlocutory appeal as Rongstad requests. Nevertheless, given the important constitutional issues raised and the consequent need for a timely resolution, we urge the court of appeals to carefully weigh whether there is a need for interlocutory appeal in a given case. Such an appeal may be necessary to protect a party from "substantial or irreparable injury," one of the criteria for testing the appropriateness of an interlocutory appeal under § (Rule) 808.03(2). We trust that the court of appeals will carefully exercise its discretion to grant or deny leave to appeal or other relief as appropriate.

IV

¶ 90. In sum, we hold as follows:

(A) In defamation cases, circuit courts should ordinarily decide a pending motion to dismiss for failure to state a claim before sanctioning a party for refusing to disclose information that would identify otherwise-anonymous members of an organization. Under the circumstances here, however, the circuit court did not erroneously exercise its discretion in compelling discovery and imposing sanctions before deciding Rongstad's motion to dismiss.

(B) The circuit court properly rejected Rongstad's assertion of privilege under the balancing test of the NAACP line of cases because Rongstad failed to make the required preliminary factual showing to support his assertion.

(C) Alt has no applicability in this case. The showing that Rongstad had to make was the one required under NAACP, not a "substantiated assertion" of evidentiary privilege under Alt.

(D) We reject Rongstad's challenge to the severity of the $65,000 in attorney's fees and forfeitures because the circuit court did not set that amount — the parties did by stipulation. Rongstad cannot claim that the amount of $65,000 has no rational relationship to the harm suffered or that the court erroneously exercised its discretion it setting the amount. We also determine that Rongstad's challenge to the default judgment on liability is moot under the parties' settlement agreement.

¶ 91. In addition, we decline to exercise our superintending authority to establish an interlocutory appeal as a matter of right in defamation cases involving discovery sanctions that raise questions of a constitutional privilege. Accordingly, we affirm the circuit court judgment.

By the Court. — The judgment of the circuit court is affirmed.

¶ 92. JON E WILCOX, N. PATRICK CROOKS, and PATIENCE DRAKE ROGGENSACK, JJ., took no part.

1 Judge Michael N. Nowakowski presided over the circuit court proceedings until a substitution request resulted in a transfer of the case to Judge Maryann Sumi.

2 Four members of the court are participating in this case. Determinations (A) and (D) above constitute a majority opinion in this case. Three members of the court, Chief Justice Abra-hamson, Justice Bradley, and Justice Butler, form the majority in those determinations. See concurrence, ¶ 95. In determinations (B) and (C), Chief Justice Abrahamson and Justice Bradley constitute a lead opinion.

3 A majority of the court in this case, Chief Justice Abraha-mson, Justice Bradley, and Justice Butler, declines to exercise our superintending authority to establish an interlocutory appeal as a matter of right in defamation cases involving discovery sanctions that raise questions of a constitutional privilege. See concurrence, ¶ 95.

4 A majority of the court in this case, Chief Justice Abraha-mson, Justice Bradley, and Justice Butler, agrees that the circuit court judgment must be affirmed. See concurrence, ¶ 95 n.l.

5 Lassa also named A.M. Mailing Services, Inc., as a defendant. A.M. Mailing's role in the mailer is not relevant to this appeal.

6 All references to the Wisconsin Statutes are to the 2003-04 version.

7 Wisconsin Stat. § 804.12(2) reads in relevant part as follows:

Failure to comply with order, (a) If a party ... fails to obey an order to provide or permit discovery,... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

3. An order ... rendering a judgment by default against the disobedient party.

4. In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical, mental or vocational examination.

Ob) In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising the party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

Wisconsin Stat. § 785.04(l)(c) authorizes the circuit court to impose a daily forfeiture not to exceed $2,000 as a remedial sanction for each day that a contempt of court continues.

8 By this point in the proceedings, the case had been transferred from Judge Nowakowski to Judge Sumi.

9 In this discussion, ¶¶ 28-36, Chief Justice Abrahamson and Justice Bradley constitute a lead opinion.

10 Wisconsin Stat. (Rule) § 809.10(4) provides as follows:

Matters reviewable. An appeal from a final judgment or final order brings before the court all prior nonfinal judgments, orders and rulings adverse to the appellant and favorable to the respondent made in the action or proceeding not previously appealed and ruled upon.

The concurrence leaps from the general propositions that an order or judgment must be appealable for an appellate court to exercise jurisdiction and that jurisdiction cannot be conferred by consent to the conclusion that "[a]s such, [Rongstadl's stipulation preserving certain appellate rights was invalid." Concurrence, ¶ 101. One of the linchpins of the concurrence's conclusion is its determination that Rongstad is not aggrieved from "that" judgment in which he "sought and secured a dismissal with prejudice." Id., ¶ 104. This determination is difficult to fathom in light of the sanctions orders and the simple fact that this case involves only one final judgment.

11 Again, the concurrence reaches a conclusion that is difficult to understand. It concludes that this court lacks jurisdiction to consider Rongstad's assertion of any privilege because the assertion of such a privilege is a defense to Lassa's defamation claim. Concurrence, ¶¶ 94, 96. The concurrence conflates a defense to the defamation claim with a defense to the discovery and contempt sanctions. In any event, both NAACP v. Alabama, 357 U.S. 449 (1958), and Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999), demonstrate that this conclusion is incorrect.

Similarly difficult to understand is the concurrence's belief that this court has jurisdiction over some but not all of the issues presented. See concurrence, ¶¶ 94-96. The concurrence does not satisfactorily explain how this court has jurisdiction over some issues but not others, even though all of the issues initially stem from Lassa's now-dismissed defamation claim.

12 The settlement agreement and judgment are structured such that regardless of whether Rongstad or Lassa prevails ,on appeal, no further litigation between them will ensue in this case.

13 The American Civil Liberties Foundation of Wisconsin submitted the amicus brief it originally filed in the court of appeals, and it also joined in another amicus brief filed after this court accepted certification of the case. Lassa moves to strike the ACLU's original brief, asserting that the ACLU has, in effect, filed two amicus briefs. We agree with Lassa and discourage such practice by amici curiae in future cases. However, because our decision would be the same regardless of any consideration given to the ACLU's original brief, we choose to deny Lassa's motion.

14 There is no shortage of cases involving claims of defamation by candidates for public office against those who have criticized them. See, e.g., Tatur v. Solsrud, 174 Wis. 2d 735, 498 N.W.2d 232 (1993); D'Amato v. Freeman Printing Co., 38 , 157 N.W.2d 686 (1968); Frinzi v. Hanson, 30 Wis. 2d 271, 140 N.W.2d 259 (1966).

15 We note that there is no real dispute in this case that Rongstad and the Alliance were the only source of the information that Lassa was seeking to discover.

16 Wisconsin Stat. § 802.03 provides in relevant part:

Pleading special matters....

(6) Libel or slander. In an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their publication and their application to the plaintiff may be stated generally.

17 The dissent imparts a spin to both the facts and the law. Contrary to what it first insinuates over the course of nine paragraphs, see dissent, ¶¶ 124-129, 139, 169-170, and then expressly concludes based on several more paragraphs of nuanced explanation, see id., ¶¶ 172-178, there is no real indication in the record of Rongstad's argument until April 30, 2003, at the earliest. By suggesting otherwise, the dissent elevates the "silk purse from a sow's ear" aphorism to new levels. The dissent apparently thinks that if it underlines the words "motion to dismiss" enough times, it can summon facts from the record that do not exist. See id., ¶¶ 124-126, 128-129, 169.

Likewise, none of the legal authorities that the dissent cites (or that Rongstad cited in the circuit court) would have apprised the circuit court that Rongstad was arguing the court must address his motion to dismiss before imposing discovery and contempt sanctions. Those authorities do not address whether circuit courts should decide a pending dispositive motion in a defamation case before resolving discovery disputes. As we have indicated in the body of this opinion, Doe v. Cahill, 884 A.2d 451 (Del. 2005), which was decided more than two years after the circuit court denied Rongstad's motion to dismiss, appears to be one of the few cases to address such an issue.

The dissent relies, for example, on the Law Note for Judges on defamation that is found in the pattern jury instructions. See dissent, ¶ 173 (citing Wis. JI — Civil 2500). Rongstad cited the Law Note in his brief in support of his motion to dismiss and provided the Law Note to the circuit court along with his April 30 letter. The Law Note, however, simply acknowledges that the initial substantive inquiry in a defamation case is usually whether the words at issue are capable of defamatory meaning, a question for the trial judge that is normally presented by a motion to dismiss. Wis. JI — Civil 2500, at 3. The Law Note provides no guidance as to how this procedure in the usual defamation case should interact with discovery disputes, let alone the type of discovery dispute here.

18 Here, as the circuit court recognized, the resolution of the discovery dispute was time-sensitive given the imminent special election for the state senate seat that Lassa had decided to seek. In a similarly time-sensitive case, the court and parties would obviously need to be mindful of expediting any briefing or proceedings necessary to decide a motion to dismiss.

19 The decision in Black Panther Party v. Smith, 661 F.2d 1243 (D.C. Cir. 1981), was subsequently vacated by the United States Supreme Court on mootness grounds, see Moore v. Black Panther Party, 458 U.S. 1118 (1982), but it continues to be cited as providing a sound analysis of the balancing test. See, e.g., International Action Ctr. v. United States, 207 F.R.D. 1, 3 n.6 (D.D.C. 2002).

20 Much as in NAACP, the Court in Bates v. City of Little Rock, 361 U.S. 516 (1960), spoke of "substantial uncontroverted evidence that public identification of persons in the community as members of the [NAACP] had been followed by harassment and threats of bodily harm." Id. at 524.

21 But cf. Britt v. Superior Court, 574 F.2d 766, 782 (Cal. 1978) (in which the majority of the court in a four-to-three decision seemingly ignored the need for a preliminary factual showing and the dissent stated that the majority had, without precedent, "expanded NAACP to a general abstract principle that the disclosure of any information about associational activities constitutes an impermissible violation of the right to associate" (Richardson, J., dissenting)); see also Pollard v. Roberts, 283 F. Supp. 248, 258 (E.D. Ark. 1968) (seeming not to require factual evidence that individuals had been subjected to reprisals and instead determining that it would be naive not to recognize that disclosure of identities would subject at least some of them to reprisals), affd per curiam, Roberts v. Pollard, 393 U.S. 14 (1968).

22 The dissent inaccurately portrays our opinion as applying the deferential erroneous exercise of discretion standard to the central constitutional issue in this case. See dissent, ¶ 110. As we have already explained, the lawfulness of the discovery and contempt sanctions in this case ultimately turns on a question of law subject to independent appellate review: whether Rong-stad made the required preliminary factual showing that meets the standard for asserting a constitutional privilege under NAACP. See, e.g., Vultaggio v. Yasko, 215 Wis. 2d 326, 330, 572 N.W.2d 450 (1998); State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996).

23 "SLAPP" is an acronym for "Strategic Lawsuit Against Public Participation." Vultaggio, 215 Wis. 2d at 359 (Bradley, J., dissenting).

24 We note that the dissent also wanders into the legislative role. It calls upon the legislature to adopt anti-SLAPP statutes even though it concedes that "[u]ntil this case, the term SLAPP suit had been relatively unheard of in Wisconsin jurisprudence." Dissent, ¶¶ 161-162.

25 The parties' settlement agreement states that Rongstad "shall have the right to pursue an appeal with respect to the attorney's fees and forfeitures on First Amendment grounds ...." (Emphasis added.) The judgment entered on the agreement, while purporting not to waive "any appellate rights," also provides as follows:

The defendants intend to appeal the appropriateness of the fees and forfeitures under the First Amendment, Alt, and whether the Courts were justified in the award, and any other applicable legal theories. Rongstad and The Valkyrie Group retain the right to appeal the contempt ruling on all issues for the stipulated amount of $65,000 with $43,000 in contempt related attorney’s fees and $22,000 in forfeitures payable to the School Fund.

(Emphasis added.)

26 Wisconsin Stat. § (Rule) 808.03(2) provides:

Appeals by permission. A judgment or order not appealable as a matter of right under sub. (1) may be appealed to the court of appeals in advance of a final judgment or order upon leave granted by the court if it determines that an appeal will:

(a) Materially advance the termination of the litigation or clarify further proceedings in the litigation;

(b) Protect the petitioner from substantial or irreparable injury; or

(c) Clarify an issue of general importance in the administration of justice.

27 We note that Rongstad did not exhaust all available procedures for appellate review. As previously mentioned, for example, Rongstad initially sought interlocutory relief in the court of appeals from the circuit court's February 4, 2003, order, asserting that the circuit court erred by rejecting his assertion of privilege under NAACP. Ultimately, however, the court of appeals dismissed Rongstad's petition for leave to appeal from the February 4 order after he failed to file any argument. The court of appeals concluded "it appears that Rongstad no longer wishes to seek interlocutory review.. .."

Likewise, at the March 11, 2003 sanctions hearing, the circuit court observed as follows:

Mr. Rongstad failed to pursue his further opportunity, which was to ask the Court of Appeals to address the merits of my order on an interlocutory appeal basis.... It was, in effect, abandoned.

And that having been said, Mr. Rongstad's most recent claims that he is going to seek vindication in the Court of Appeals and that that is what explains his conduct and his defiance of this Court's order likewise falls on rather hollow footing. Instead, what it appears virtually certain to be is simply another in the variety of steps that Mr. Rongstad has taken in this litigation to seek delay and to avoid his responsibilities under the law.

In addition, it appears that Rongstad chose not to utilize other mechanisms for interlocutory relief. Lassa sets forth the following background facts in her brief:

On April 1, 2003, the Court of Appeals denied a second petition for leave to appeal and motion for temporary relief filed by Mr. Rongstad seeking review of the court's February 28 and March 11, 2003 orders because the Court does not take permissive appeal[s] on oral orders. Those sanctions orders were reduced to [a] written order on April 2, 2003.. . . Mr. Rongstad did not seek leave for appeal of the April 2, 2003 order.