Moustakis v. State
869 N.W.2d 788
Wis. Ct. App.2015Background
- The Lakeland Times requested DOJ records relating to complaints/investigations of Vilas County District Attorney Albert Moustakis and communications between him and the DOJ.
- DOJ prepared redacted records for release, and its custodian (Potter) provided Moustakis a copy and notice as a courtesy before release.
- Moustakis filed suit under Wis. Stat. § 19.356(4) seeking to enjoin the DOJ from releasing the records, claiming they related to investigations of him.
- DOJ moved to dismiss, arguing Moustakis lacked standing because he was not an "employee" under Wis. Stat. § 19.32(1bg) and thus the records did not fall within the narrow prerelease-notice exception in § 19.356(2)(a)1.
- The circuit court agreed that the statutory definition of "employee" excludes holders of state public office (including district attorneys), dismissed Moustakis's § 19.356 claim, and this decision was affirmed on appeal.
Issues
| Issue | Plaintiff's Argument (Moustakis) | Defendant's Argument (DOJ) | Held |
|---|---|---|---|
| Whether Moustakis is an "employee" under Wis. Stat. § 19.32(1bg) for purposes of § 19.356(2)(a)1 | He is an employee within the second category ("employed by an employer other than an authority") because his employment derives from the State rather than from the named "authority" | The statute unambiguously excludes holders of state public office from the definition of "employee," and district attorneys are "state public office" holders | Held: Moustakis is not an "employee" under § 19.32(1bg); district attorneys are state public office holders excluded from that definition |
| Whether records fall within the prerelease-notice exception in § 19.356(2)(a)1 (information relating to an employee arising from an employment investigation) | If Moustakis is an "employee," the records would qualify and he could seek an injunction | Because Moustakis is not an "employee," the records do not "relate to an employee" under § 19.356(2)(a)1, so no prerelease notice or judicial-review right exists | Held: Records do not qualify under § 19.356(2)(a)1 because they do not relate to an "employee," so Moustakis lacks standing under § 19.356(4) |
| Whether § 19.356(9)(a) (notice to "officer or employee of the authority holding a local public office or a state public office") creates a conflict or renders § 19.32(1bg) surplusage | The § 19.356(9)(a) wording shows that some office-holders must be "employees," so § 19.32(1bg) cannot exclude state office-holders entirely | The phrasing in § 19.356(9)(a) is best read as a restriction modifying "record subject" (an "officer or employee of the authority holding a local or state public office") and does not change the defined meaning in § 19.32(1bg) | Held: No conflict; § 19.356(9)(a) is read as limiting which record subjects get notice, and does not render § 19.32(1bg) ambiguous or surplusage |
Key Cases Cited
- Three T's Trucking v. Kost, 303 Wis. 2d 681 (standing restricts who can seek judicial relief)
- Foley-Ciccantelli v. Bishop's Grove Condo. Ass'n, 333 Wis. 2d 402 (statutory standing requires injury to interests protected by the statute)
- State ex rel. Kalal v. Circuit Court for Dane Cnty., 271 Wis. 2d 633 (statutory interpretation focuses on plain meaning in context)
- Kammes v. State Mining Inv. & Local Impact Fund Bd., 115 Wis. 2d 144 (if party lacks standing, action must be dismissed)
- Mercy Care Ins. Co. v. Wisconsin Comm'r of Ins., 328 Wis. 2d 110 (statutory interpretation and application are questions of law)
- Journal Times v. City of Racine Bd. of Police & Fire Comm'rs, 362 Wis. 2d 577 (public records law construed with a presumption of complete public access)