Zellner v. Herrick

2009 WI 80, 770 N.W.2d 305, 319 Wis. 2d 532, 2009 Wisc. LEXIS 290

Opinions

N. PATRICK CROOKS, J.

¶ 1. This case is before the court on certification from the court of appeals pursuant to Wis. Stat. § 809.61 (2005-06).¹

¶ 2. This review arises from a request made under Wisconsin's Open Records Law, Wis. Stat. § 19.35, for the public release of a transcript of a closed arbitration hearing. The plaintiff, Robert Zellner (Zellner), the former teacher whose firing was at issue in the arbitration hearing, sued the Cedarburg School Board to prevent the release of the transcript.

¶ 3. The circuit court issued an order enjoining the transcript's release. The person requesting the transcript, Heidi Morgan (Morgan), filed notice to intervene, as Wis. Stat. § 19.356(4) authorizes, and appealed. The court of appeals denied Zellner's motion to dismiss on grounds that the appeal was not timely filed and subsequently certified two questions to this court: whether a transcript of a closed arbitration proceeding is a public record under Wisconsin's "public records" law, and, if so, whether all personal and medical information must be redacted before release. Zellner's contention that Morgan's appeal was untimely was not certified to this court. In this court's standard order accepting the certification, we stated that "the appeal is accepted for consideration of all issues raised before the court of appeals." See State v. Stoehr, 134 Wis. 2d 66, 70, 396 N.W.2d 177 (1986) ("When this court grants direct review upon certification, it acquires jurisdiction of the appeal, which includes all issues, not merely the issues certified or the issue for which the court accepts the certification." (citing Wis. Stat. § 808.05(2) (1983-84))).

¶ 4. For the reasons stated below, we now hold that the court of appeals erred when it found the appeal timely under Wis. Stat. § 19.356(8), which requires that an appeal of a decision relating to an open records request be filed in "the time period specified in s. 808.04(lm)." The time period specified in that statute is 20 days. Because the appeal was filed outside the 20-day period, there was no jurisdiction for the court of appeals to review. Since the appeal was not timely, we do not reach the certified questions.

I. BACKGROUND

¶ 5. The circumstances of this case have given rise to litigation on several distinct issues not relevant to this appeal. The litigation from which this appeal arises is based on the following facts:

¶ 6. First, the Cedarburg School Board fired Zellner — a teacher with the Cedarburg School District (the District) and a union official who had been highly critical of the superintendent — on the grounds that Zellner's accessing pornography on a school computer constituted just cause for his termination. The Cedar-burg Education Association filed a grievance on Zellner's behalf, arguing that Zellner's termination was, among other things, disproportionate to the offense and greatly out of line with the District's handling of similar infractions by other personnel.

¶ 7. The matter was sent to an arbitration panel, pursuant to a collective bargaining agreement. The arbitration panel issued a decision stating that the District "did not have just cause to terminate [Zellner's] employment," and directing the District to reinstate Zellner, reduce his discipline to a written reprimand, and to make him whole for all lost wages and benefits. The District refused and additional litigation ensued.²

¶ 8. Following the arbitration hearing, Morgan requested the transcript of the closed arbitration hearing. The District concluded that the transcript was a public record and informed Zellner that it planned to release it.

¶ 9. Zellner filed this action seeking to prevent release of the transcript or, in the alternative, seeking redaction of medical and familial information that Zellner had submitted during arbitration. On October 1, 2007, the Ozaukee Circuit Court, the Honorable Paul V Malloy presiding, entered an order enjoining the District from releasing the transcript. The circuit court held that the transcript was a public record, but it then applied the second prong of the Linzmeyer test³ and held that the transcript was not subject to release because the public's interest in the release of the transcript was outweighed by the public policy favoring privacy in an alternative dispute resolution such as arbitration.⁴

¶ 10. On November 9, 2007, Morgan filed a notice of intervention pursuant to Wis. Stat. § 19.356(4) and on the same day filed a notice of appeal. On November 16, 2007, Zellner filed a motion to dismiss the appeal for lack of jurisdiction. Zellner argued that Morgan had filed her notice of appeal more than 20 days after the circuit court's October 1 order, and, therefore, the appeal was not timely filed pursuant to Wis. Stat. § 808.04(lm).

¶ 11. In an order dated December 5, 2007, the court of appeals denied Zellner's motion to dismiss. On November 26, 2008, the court of appeals, as noted above, certified two questions to this court concerning the release of closed arbitration hearing transcripts and the redaction of medical information in such transcripts. This court accepted the certification on January 14, 2009.

II. STANDARD OF REVIEW

¶ 12. We resolve the issue presented here on the basis of statutory interpretation. Statutory interpretation presents a question of law that is reviewed de novo. Stuart v. Weisflog's Showroom Gallery, Inc., 2008 WI 22, ¶ 11, 308 Wis. 2d 103, 746 N.W.2d 762.

III. DISCUSSION

¶ 13. The outcome of this case turns on the. proper understanding of the procedural rules set forth in Wis. Stat. § 19.356, which governs appeals of rulings made on records requested under the Open Records Law. It is helpful to begin with a brief examination of the context in which this provision appears.

¶ 14. Wis. Stat. § 19.31 codifies the state's strong policy favoring free access to public records. Subsequent sections set forth the limited exceptions to that general principle, as well as the mechanism for judicial review prior to granting public access under certain circumstances.

¶ 15. Wis. Stat. § 19.356 was among the provisions added when the legislature revisited the statute in 2003, following this court's decisions in Woznicki⁵ and Milwaukee Teachers.⁶ 2003 Wisconsin Act 47, which created this section, was the product of the Joint Legislative Council's Special Committee on Review of the Open Records Law.⁷ The Act created limited rights to judicial review prior to the release of public records for individuals whose privacy or reputational interests are implicated by the release. Such an individual is defined in the statute as a "record subject" — "an individual about whom personally identifiable information is contained in a record." Wis. Stat. § 19.32(2g).

¶ 16. The subsections of Wis. Stat. § 19.356 deal with a particular subset of public records, which includes records containing information relating to public employees. The subsections describe the timeline envisioned by the legislature with strict time limits at each step. The clock starts running when an authority decides "to permit access" to such a record. At that point, the authority must, within three days, "serve written notice" on "any record subject to whom the record pertains." Wis. Stat. § 19.356(2). After the record subject receives such notice, he or she may, within five days, alert the authority that he or she plans to challenge the release of the information. Wis. Stat. § 19.356(3). Within ten days of receiving the notice, the record subject may seek judicial review and ask that a court enjoin the release of the information.⁸ Wis. Stat. § 19.356(4). This is what Zellner did.

¶ 17. Following oral argument, the circuit court ruled that the transcript was a public record. The circuit court went on to rule that the transcript should not be released on the grounds that "the public interest is outweighed by the need for privacy in this type of proceeding." The court stated that it would issue an order enjoining the District from releasing the materials. The order was issued October 1, 2007.

¶ 18. This brings us to the critical point in the process. It was at this point that Morgan, the original requester of the records, filed a notice of intervention as the statute permits and subsequently filed a notice of appeal on November 9, 2007.

¶ 19. The significance of the dispute about the applicable time period — either 20 or 45 days following the issuance of the circuit court's order — is that Morgan filed her notice of appeal 39 days after the order. If the 20-day deadline is the correct deadline under the statute, Morgan's appeal is fruitless because there is no jurisdiction for the court of appeals to hear it. If the 45-day deadline is the applicable one, the appeal and our review may proceed.

¶ 20. In order to resolve this question, we look carefully at the language of the statute. We have on previous occasions articulated the assumptions and principles with which we undertake this exercise:

It is, of course, a solemn obligation of the judiciary to faithfully give effect to the laws enacted by the legislature, and to do so requires a determination of statutory meaning. Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We assume that the legislature's intent is expressed in the statutory language. Extrinsic evidence of legislative intent may become relevant to statutory interpretation in some circumstances, but is not the primary focus of inquiry. It is the enacted law, not the unenacted intent, that is binding on the public. Therefore, the purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect.

Thus, we have repeatedly held that statutory interpretation "begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." Statutory 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.

Context is important to meaning. So, too, is the structure of the statute in which the operative language appears. Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results. Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage. "If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning."

State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶ 44-46, 271 Wis. 2d 633, 681 N.W.2d 110 (internal citations omitted).

¶ 21. We therefore turn to the language of the statute that governs appeals of orders in open records cases. The subsection governing appeals of the type of order presented here is § 19.356(8): "If a party appeals a decision of the court under sub. (7), the court of appeals shall grant precedence to the appeal over all other matters not accorded similar precedence by law. An appeal shall be taken within the time period specified in s. 808.04(lm)."

¶ 22. It has already been settled that as a requester and as an intervenor as of right under the statute,⁹ Morgan is "a party." When the question of an intervenor's status first arose in Wisconsin, the court of appeals noted that "the issue is well settled among other jurisdictions," and adopted that approach, summing up the rule briefly: "Simply put, [the intervenor's] status after intervention [is] the same as all the other participants in the proceeding . .. ." Kohler Co. v. Sogen Int'l Fund, Inc., 2000 WI App 60, ¶ 11, 233 Wis. 2d 592, 608 N.W.2d 746. The court of appeals cited as pertinent a case that interpreted a parallel federal mechanism for intervention: "When a party intervenes, it becomes a full participant in the lawsuit and is treated just as if it were an original party." Id. at ¶ 12 (quoting Schneider v. Dumbarton Developers, Inc., 767 F.2d 1007, 1017 (D.C. Cir. 1985)).

¶ 23. Having established that Morgan is a party, it is further obvious that she is a party who is "appealing] a decision of the court under sub.(7)." Wis. Stat. § 19.356(8). The remainder of the sentence concerns the expediting of the appeal, a matter to which we will return shortly. It is the next sentence that needs our close attention: "An appeal shall be taken within the time period specified in s. 808.04(lm)." Id.

¶ 24. The question to answer then is, what is "the time period specified in s. 808.04(lm)"? Wis. Stat. (lm) reads as follows: "An appeal by a record subject under s. 19.356 shall be initiated within 20 days after the date of entry of the judgment or order appealed from."

¶ 25. Wis. Stat. § 19.356(8) tells us to look for the time period referenced in Wis. Stat. § 808.04(lm). When we do so, the only time period referenced in § 808.04(lm) is 20 days. There simply is no other way to read § 19.356 that gives effect to its words. If the legislature had, as Morgan contends, intended that the 20-day time period for appeal for this type of order be limited to the record subject alone, and that a 45-day time period for appeal apply to everyone else, it could have clearly indicated that by referring to "the applicable sections" in Wis. Stat. § 808.04.¹⁰ See, e.g., Wis. Stat. § 88.05(3)(a).

¶ 26. Our reading is entirely consistent with the legislature's demonstrated interest in resolving these disputes as speedily as possible. Given the tight deadlines imposed throughout the process, a 20-day time period is much more in accord with the overall tenor of the statute than a 45-day time period. The essence of the statute is to prescribe the special handling of matters involving an attempt to block release of a record under the Open Records Law and to require that they be expedited to resolution. This is highlighted by the provision stating that a court and an appellate court are mandated to give precedence to such matters. Wis. Stat. § 19.356(7), (8).

IV CONCLUSION

¶ 27. For the reasons stated, we now hold that the court of appeals erred when it found the appeal timely under Wis. Stat. § 19.356(8), which requires that an appeal of a decision relating to an open records request be filed in "the time period specified in s. 808.04(lm)." The time period specified in that statute is 20 days. Because the appeal was filed outside the 20-day period, there was no jurisdiction for the court of appeals to review. Since the appeal was not timely, we do not reach the certified questions.

By the Court. — The appeal is dismissed and the order of the circuit court is affirmed.

1 All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.

2 The decision of the Ozaukee County Circuit Court, the Honorable Joseph D. McCormack presiding, that the arbitration award was improper was upheld by the court of appeals in Cedarburg Education Association v. Cedarburg School District, No. 2007AP852, unpublished slip op. (Wis. Ct. App. July 23, 2008), review denied, Cedarburg Education Association v. Cedarburg Board of Education, 2009 WI 23, 315 Wis. 2d 722, 764 N.W.2d 531 (unpublished table decision).

3 Linzmeyer v. Forcey, 2002 WI 84, ¶¶ 10-11, 254 Wis. 2d 306, 646 N.W.2d 811 (creating a two-step test: first, establishing that the record requested is a public record, and, second, determining whether there is a public policy that overcomes the presumption of openness).

4 The circuit court essentially found that the public has an interest in keeping arbitration proceedings private. As we have noted, "[I]n applying the common-law balancing test, the concern is not personal embarrassment and damage to reputation, but whether disclosure would affect any public interest[]... in the protection of the privacy and reputation of citizens generally." Zellner v. Cedarburg Sch. Dist., 2007 WI 53, ¶ 52, 300 Wis. 2d 290, 731 N.W.2d 240.

5 Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996).

6 Milwaukee Teachers' Educ. Ass'n v. Milwaukee Bd. of Sch. Dirs., 227 Wis. 2d 779, 596 N.W.2d 403 (1999).

7 The Joint Legislative Council introduced Assembly Bill 196 on March 25, 2003. The Assembly passed the bill June 24, 2003, and sent it to the Senate, which concurred in the passage.

8 "Within 10 days after receipt of notice under sub. (2)(a), a record subject may commence an action seeking a court order to restrain the authority from providing access to the requested record...." Wis. Stat. § 19.356(4).

9 " 'Requester' means any person who requests inspection or copies of a record, except a committed or incarcerated person . ..." Wis. Stat. § 19.32(3). "Notwithstanding s. 803.09, the requester may intervene in the action as a matter of right...." Wis. Stat. § 19.356(4).

10 While we see the plain language of Wis. Stat. § 19.356(8) as unambiguously requiring a 20-day time period for appeal by virtue of its reference to that time period in Wis. Stat. § 808.04, there are other indications as well that the legislature intended that result. The notes of the Joint Legislative Council, which introduced the legislation, describe the provision's effect as requiring that "[a]n appeal must be taken within 20 days after entry of the judgment or order appealed from." 2003 Wis. Act 47, § 4 n.3. The Legislative Council's Act Memo for 2003 Wisconsin Act 47 states, "Act 47 provides a system of expedited judicial review when a record subject attempts to prevent the release of a public record." See http://www.legis.state.wi.us/2003/data/ Ic_act/act047-abl96. pdf (last visited June 24, 2009). This is just such a case. It makes sense that the expedited judicial review prescribed by the Act applies to all parties to an action concerning a record subject's attempt to block release of a record.