Zellner v. Herrick

PATIENCE DRAKE ROGGENSACK, J.

¶ 28. (dissenting). The majority opinion denies Heidi Morgan's (Morgan) open records request based on its conclusion that she did not timely file an appeal of the circuit court's decision denying access to the records of Robert Zellner's (Zellner) arbitration hearing. It does so by concluding Wis. Stat. § 19.356(8) requires that an intervenor's appeal of a circuit court decision in an open records case be filed within the time period set out in Wis. Stat. § 804.04(lm) for record subjects.1 I write in dissent because although § 19.356 provides the initial proce*544dural pathway for our review, § 808.04(1) applies to Morgan's appeal. Section 808.04(1) provides a minimum of 45 days in which to commence an appeal and Morgan's appeal was filed within 45 days of the circuit court decision. And, although Morgan intervened,2 she was not a "party" when the circuit court entered its order, nor was she a party during the 20-day period when the majority opinion concludes that she was required to appeal.3 Accordingly, this court should proceed to decide the important questions for which we granted certification. Therefore, I respectfully dissent.

I. BACKGROUND

¶ 29. This case arises out of an open records request by Morgan4 for the arbitration proceeding transcript relative to Zellner's termination of employment as a teacher in the Cedarburg School District (Cedarburg).5 Cedarburg granted Morgan's open records request. In an attempt to prevent disclosure of those public records, Zellner6 commenced the present action, pursuant to Wis. Stat. § 19.356(4). When he did *545so, he became the party plaintiff and Cedarburg became a party defendant. § 19.356(4). Morgan was not named in the action and accordingly she was not a party initially.

¶ 30. The circuit court concluded that the transcript was a public record, but when it balanced the public's interest in disclosure with the public's interest in precluding disclosure, the circuit court concluded that the transcript should not be released.

¶ 31. The circuit court entered its decision on October 1, 2007. On November 9, 2007, Morgan gave notice of her intention to intervene as of right, pursuant to Wis. Stat. § 19.356(4), and on November 9, 2007, she also filed a notice of appeal.

¶ 32. On November 16, 2007, Zellner moved to dismiss Morgan's appeal as untimely. The court of appeals denied his motion on Dec. 5, 2007, concluding that Morgan's notice of appeal was timely according to Wis. Stat. § 808.04(1), which it determined to be the statute applicable to Morgan's appeal. Zellner v. Herrick, No. 2007AP2584, interim order (Wis. Ct. App. Dec. 5, 2007).

¶ 33. Whether arbitration records are public records subject to an open records request is an important question of first impression. Accordingly, the court of appeals certified the appeal to us, and we accepted the certification.

II. DISCUSSION

A. Standard of Review

¶ 34. Whether Morgan timely appealed the circuit court decision presents questions of statutory interpretation and application, which are questions of law for our independent review. Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶ 14, 309 Wis. 2d 541, 749 N.W.2d 581; *546Spiegelberg v. State, 2006 WI 75, ¶ 8, 291 Wis. 2d 601, 717 N.W.2d 641.

B. Statutory Interpretation

1. General principles

¶ 35. We interpret a statute to determine its meaning. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 43, 271 Wis. 2d 633, 681 N.W.2d 110. "We assume that the legislature's intent is expressed in the statutory language." Id., ¶ 44. Statutes are to be read in context, consistent with the statutes to which they relate. Seider v. O'Connell, 2000 WI 76, ¶ 43, 236 Wis. 2d 211, 612 N.W.2d 659. Statutes are to be read so as "to give reasonable effect to every word, in order to avoid surplusage." Kalal, 271 Wis. 2d 633, ¶ 46.

¶ 36. In construing a statute, we favor a construction that fulfills the purpose of the statute over one that defeats that purpose. Brown v. Thomas, 127 Wis. 2d 318, 323, 379 N.W.2d 868 (Ct. App. 1985). Finally, procedural rules, such as those governing the time limits for appeals, are to be construed liberally "so as to encourage a resolution of the controversy on the merits." Split Rock Hardwoods, Inc. v. Lumber Liquidators, Inc., 2002 WI 66, ¶ 57, 253 Wis. 2d 238, 646 N.W.2d 19 (quoting State v. Sorenson, 2000 WI 43, ¶ 15, 234 Wis. 2d 648, 611 N.W.2d 240).

2. Public Records Law

¶ 37. This case arises from a request for public records, often referred to as an open records request. Watton v. Hegerty, 2008 WI 74, ¶ 6, 311 Wis. 2d 52, 751 N.W.2d 369. Therefore, the portion of Wis. Stat. ch. 19 that pertains to the Public Records Law is my starting point. Wisconsin Stat. § 19.31 sets out the legislative *547purpose that affects all open records requests. Section 19.31 provides in relevant part:

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 the official acts of those officers and employees who represent them.... 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.

§ 19.31 (emphasis added). Accordingly, the directive of § 19.31 will be paramount in my interpretation and application of the Public Records Law sections of ch. 19.

¶ 38. The Public Records Law contains two procedural pathways of review, depending on whether the custodian of the records decides to deny, or to provide, access to the requested records. If the custodian denies access, a requester of the records has 90 days in which to commence a mandamus action in circuit court. Wis. Stat. § 19.37(l)(a), (lm). If the custodian grants access to the records, a record subject has only 10 days in which to commence a circuit court action seeking to enjoin release of the records. Wis. Stat. § 19.356(4). The differing time limits afforded a requester when compared with those afforded a record subject are consistent with Wis. Stat. § 19.31's stated purpose. This is so because more time is given to a requester, who is acting in accord with the policy of providing complete access to public records. Less time is given to a record subject, who is attempting to block access to public records, an action contrary to the stated purpose of the Public Records Law. § 19.31.

*548¶ 39. If the circuit court in a requester's mandamus action affirms the custodian's decision not to release the records, then a requester has 45 days after notice of entry of judgment, or 90 days if no notice is given, to appeal the circuit court decision to the court of appeals. Wis. Stat. § 808.04(1). However, if the circuit court, in a record subject's action commenced to enjoin release of the public records, denies the injunction, a record subject has only 20 days in which to file an appeal. § 808.04(lm). Again, this difference in the time accorded to seek further review is consistent with the statutory purpose of affording access to the records of government affairs: a requester, whose actions are in line with access, is given more time, and a record subject, who is trying to thwart access, is given less time to appeal an adverse decision. Wis. Stat. § 19.31.

¶ 40. In the case before us, Zellner commenced this action requesting the circuit court to enjoin Cedar-burg from releasing the records of his arbitration proceeding. Therefore, Zellner proceeded under Wis. Stat. § 19.356(4). In so doing, he became a party plaintiff and Cedarburg was required to be named as a party defendant. § 19.356(4).

¶ 41. The circuit court entered its decision enjoining the release of the public records on October 1, 2007, and Morgan intervened on November 9,2007. Therefore, Morgan was not a party when the circuit court entered its order.

3. Timeliness of Morgan's appeal

¶ 42. The majority opinion parses Wis. Stat. § 19.356(8), which provides in relevant part:

If a party appeals a decision of the court under sub. (7),. .. [a]n appeal shall be taken within the time period specified in s. 808.04(lm).

*549¶ 43. The majority opinion also parses Wis. Stat. § 808.04(lm), which provides:

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.

The majority opinion applies the 20-day limitation of § 808.04(lm) to Morgan. In so doing, the majority opinion reads the words, "record subject," out of § 808.04(lm). This is contrary to basic statutory construction principles that statutes are to be interpreted to avoid surplusage. Kalal, 271 Wis. 2d 633, ¶ 46. The majority opinion also includes Morgan as a "party" under § 19.356(8). In so doing, it creates a way to deny Morgan her right to appeal, and it contravenes the stated purpose for which the Public Records Law was enacted— complete access to public records. Wis. Stat. § 19.31.

¶ 44. I conclude that the majority errs by eliminating the term, "record subject," from Wis. Stat. § 808.04(lm). I also conclude that a reading of the term "party" in § 19.356(8) to include only the record subject is consistent with both the stated purpose of the Public Records Law and the procedural pathway a record subject must use when he attempts to enjoin the release of public records.

¶ 45. This is so because when a record subject files an action to enjoin release of public records, the statutes provide for two parties: the authority (custodian) and the record subject. Wis. Stat. § 19.356(4). When § 19.356 is the procedural pathway through which the open records request is proceeding, the custodian will not be appealing the circuit court decision. By contrast, when the custodian denies release of the records, the appeal proceeds under Wis. Stat. § 19.37(1), not under § 19.356. *550See Milwaukee Journal Sentinel v. Wis. Dep't of Admin., 2009 WI 79, ¶ 5 & n.7, 319 Wis. 2d 439, 768 N.W.2d 700.

¶ 46. A "party" in Wis. Stat. § 19.356(8) refers to the record subject because it is the record subject who would appeal from a circuit court decision to release the records. If the circuit court decides not to release the records, as occurred here, the custodian has no interest in appealing because the custodian is in the same position as it was before the open records request was made. And finally, the requester may choose not to intervene at all, because intervention is not mandatory. § 19.356(4). Or, the requester may do so several weeks after entry of the circuit court decision, as occurred here, or even after the record subject appeals. See City of Madison v. Wis. Employment Relations Comm'n, 2000 WI 39, ¶ 1, 234 Wis. 2d 550, 610 N.W.2d 94.

¶ 47. The majority opinion interprets procedural statutes, which at the very least, are ambiguous in regard to whom the term "party" applies. When interpreting ambiguous procedural statutes, we do so in a manner that will permit a decision on the merits. Sorenson, 234 Wis. 2d 648, ¶ 28. As we explained in DOT v. Peterson, 226 Wis. 2d 623, 594 N.W.2d 765 (1999), where a property owner served the State of Wisconsin rather than the Department of Transportation, if a statute "can reasonably be interpreted" so as to permit review, we do so. Id. at 625. The majority errs in contravening this basic rule of statutory construction.

¶ 48. In addition, the majority opinion's interpretation of Wis. Stat. § 19.356(8) is contrary to the express directive of the legislature in regard to construction of Wis. Stat. §§ 19.32 to 19.37 because the majority opinion thwarts access to the public records that Morgan sought by shutting down Morgan's appeal rights. See Wis. Stat. § 19.31.

*551¶ 49. Furthermore, the majority opinion defies a common sense reading of the statutes. Let me explain. Morgan filed a notice of intervention on November 9, 2007. Therefore, when the circuit court issued its October 1, 2007, decision, Morgan was not a party. Morgan also was not a party during any part of the 20-day time period in which the majority opinion concludes she was required to appeal in order for her appeal to be timely. Under the majority opinion's statutory interpretation, Morgan lost her appeal rights as a "party" before she was a "party." This internal inconsistency in the majority opinion demonstrates the ambiguity in Wis. Stat. § 19.356(8) that the majority opinion chooses to ignore.7 A procedural ambiguity should be interpreted in favor of permitting the resolution of this controversy on the merits. Sorenson, 234 Wis. 2d 648, ¶ 22.

¶ 50. In my view, the court of appeals got it right when it concluded that Wis. Stat. § 808.04(1) set the time limit for Morgan's notice of appeal. Zellner v. Herrick, No. 2007AP2584, interim order (Wis. Ct. App. Dec. 5, 2007). The court of appeals' conclusion is consistent with what Morgan's appeal rights would have been if she had been required to filed a mandamus action due to an adverse decision by Cedarburg. The court of appeals' conclusion is also consistent with Wis. Stat. § 19.31, in that it interprets the Public Records Law to promote an opportunity for complete access to government workings by permitting Morgan's appeal to go forward.

III. CONCLUSION

¶ 51. The majority opinion errs when it contravenes foundational principles of statutory construction and interprets the Public Records Law contrary to the *552legislature's express directive in regard to the construction of Wis. Stat. §§ 19.32 to 19.37. Wis. Stat. § 19.31. Morgan is seeking to shine a light on governmental actions, and Zellner is thwarting the legislature's express directive for "complete public access." The majority opinion assists Zellner's efforts. Because I conclude that the majority opinion errs and also that Morgan's appeal was timely filed, I respectfully dissent.

Majority op., ¶ 4.

Zellner has not objected to Morgan's intervention in this court, and the majority opinion assumes it was undertaken sufficiently to cause Morgan to become a party. Id., ¶ 22.1, too, agree that Morgan is properly ■ a party in the certification pending before us.

Id., ¶ 27.

Morgan is defined as a "requester" under the Public Records Law. Wis. Stat. § 19.32(3).

Cedarburg, as the custodian of the records, is defined as an "authority" under the Public Records Law. Wis. Stat. § 19.32(1). In the parlance of this dissent, I sometimes refer to Cedarburg as the custodian or the custodian of the records.

Zellner is defined as the "record subject" under the Public Records Law. Wis. Stat. § 19.32(2g).

Majority op., ¶¶ 18-19.