Friends of Frame Park, U.A. v. City of Waukesha
2019AP96
SUPREME COURT OF WISCONSIN
July 6, 2022
2022 WI 57 | 394 Wis. 2d 387 | 950 N.W.2d 831
PDC No: 2020 WI App 61 - Published. L.C. No. 2017CV2197. REVIEW OF DECISION OF THE COURT OF APPEALS.
ORAL ARGUMENT: September 9, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Michael O. Bohren
JUSTICES:
HAGEDORN, J., delivered the majority opinion of the Court with respect to ¶3, in which ZIEGLER, C.J., ROGGENSACK, and REBECCA GRASSL BRADLEY, JJ., joined, an opinion with respect to ¶¶13-24, in which ZIEGLER, C.J., and ROGGENSACK, J., joined, and an opinion with respect to ¶¶1-2, 4-12, 25-38. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. KAROFSKY, J., filed a dissenting opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined.
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs filed by John M. Bruce and West & Dunn, LLC, Two Rivers. There was an oral argument by John M. Bruce.
For the plaintiff-appellant, there was a brief filed by Joseph R. Cincotta and The Law Offices of Joseph R. Cincotta, Milwaukee. There was an oral argument by Joseph R. Cincotta.
An amicus curiae brief was filed by James A. Friedman, Maxted M. Lenz and Godfrey & Kahn, S.C., Madison, for the
NOTICE: This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
HAGEDORN, J., delivered the majority opinion of the Court with respect to ¶3, in which ZIEGLER, C.J., ROGGENSACK, and REBECCA GRASSL BRADLEY, JJ., joined, an opinion with respect to ¶¶13-24, in which ZIEGLER, C.J., and ROGGENSACK, J., joined, and an opinion with respect to ¶¶1-2, 4-12, 25-38. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. KAROFSKY, J., filed a dissenting opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 BRIAN HAGEDORN, J. In this public records case, the City of Waukesha denied access to a draft contract with a private entity to protect ongoing negotiations and until it consulted with the City‘s Common Council. The requester brought a mandamus action seeking access to the withheld contract. Two days later, after a meeting of the Common Council, the City turned over the record to the requester.
¶2 The first issue in this case relates to attorney‘s fees in public records cases. The parties disagree over the test we should use to determine whether the requester, in the statute‘s words, “prevail[ed] in whole or in substantial part,” and is therefore entitled to attorney‘s fees.
¶3 Four justices agree that to “prevail[] in whole or in substantial part” means the party must obtain a judicially sanctioned change in the parties’ legal relationship. Accordingly, a majority of the court adopts this principle.
¶4 This conclusion arguably raises other statutory questions. Prior court of appeals cases have held that a requester could still pursue attorney‘s fees even if the records have been voluntarily turned over. This conclusion rested on its causation-based theory, however. The concurrence argues that under the proper statutory test we announce today, a mandamus action becomes moot after voluntary compliance, and record requesters have no separate authority to pursue attorney‘s fees. We save this issue for another day. Even if record requesters can pursue attorney‘s fees following release of the requested records, an award of fees would not be appropriate here. This is so because in temporarily withholding the draft contract, the
I. BACKGROUND
¶5 Friends of Frame Park, U.A. (Friends) is an association composed of several members who own property, work, and pay taxes to the City of Waukesha and make use of City parks, including Frame Park. Friends sent the City a public records request on October 9, 2017, seeking information about the City‘s plans to bring amateur baseball to Waukesha.2 The request stated in part: “Please include any Letters of Intent (LOI) or Memorandum of Understanding (MOU) or Lease Agreements between Big Top Baseball and or Northwoods League Baseball and the City of Waukesha during the time frame of 5-1-16 to the present time frame.”
¶6 The City responded two weeks later. It provided all documents responsive to Friends’ request except a draft contract with Big Top Baseball. The City explained its decision to temporarily withhold the document as follows:
A park use contract with Big Top Baseball is presently in draft form. Because the contract is still in negotiation with Big Top, and there is at least one other entity that may be competing with the City of Waukesha for a baseball team, the draft contract is being withheld from your request, pursuant to
Wis. Stats. §§ 19.35(1)(a) and§ 19.85(1)(e) . This is to protect the City‘s negotiating and bargaining position. The draft contract is subject to review, revision, and approval of the Common Council before it can be finalized, and the Common Council have not yet had an opportunity to review and discuss the draft contract. Protecting the City‘s ability to negotiate the best deal for the taxpayers is a valid public policy reason to keep the draft contract temporarily out of public view —Wis. Stats. § 19.35(1)(a) states that exemptions to the requirement of a governmental body to meet in open session are indicative of public policy in this regard, andWis. Stats. § 19.85(1)(e) exempts from open session “[d]eliberating or negotiating the purchasing of public properties, the investing of public funds, or conducting other specified public business, whenever competitive or bargaining reasons require a closed session.” There currently is a need to restrict public access for competitive and bargaining reasons until the Council has an opportunity to review the draft and determine whether it wants to adopt it or set different parameters for continued negotiations with the interested parties. If the contract‘s terms were made public, itwould substantially diminish the City‘s ability to negotiate different terms the Council may desire for the benefit the City. Because the City‘s negotiating and bargaining position could be compromised by public disclosure of the draft contract before the Common Council have had an opportunity to consider the draft, after applying the balancing test, the public‘s interest in protecting that negotiating and bargaining position outweighs the public‘s interest in disclosing the draft contract at this point. You will get a copy of the contract after the Common Council has taken action on it.
¶7 Friends believed the City improperly withheld the draft contract and knew the use of Frame Park was on the Common Council meeting agenda for December 19, 2017. So the day before the Common Council meeting, in order to preserve its remedies, Friends filed a mandamus action under
¶8 The next day, on December 20, 2017, the City released the draft contract to Friends.3 Consistent with its explanation initially denying release, the City explained the documents “are being released now because there is no longer any need to protect the City‘s negotiating and bargaining position.”
¶9 Friends then amended its complaint, asking the circuit court4 to hold that the City improperly withheld the draft contract. In advance of trial, the City filed a motion for summary judgment which the circuit court granted; Friends did not move for summary judgment. The circuit court concluded the City “properly withheld certain public records temporarily in response to the record request made by [Friends] for the reasons set forth in the letter . . . and appropriately relied on
¶10 Friends appealed, and the court of appeals reversed. Friends of Frame Park, U.A. v. City of Waukesha, 2020 WI App 61, 394 Wis. 2d 387, 950 N.W.2d 831. The court concluded that the City‘s reliance on the negotiating and bargaining “exception was unwarranted and led to an unreasonable
II. DISCUSSION
¶11 Procedurally, this case is a review of the circuit court‘s decision to grant summary judgment, which we review independently. J. Times v. City of Racine Bd. of Police & Fire Comm‘rs, 2015 WI 56, ¶42, 362 Wis. 2d 577, 866 N.W.2d 563. Summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
¶12 The two questions before us concern entitlement to attorney‘s fees under
A. Attorney‘s Fees Under the Public Records Law
¶13 When “an authority withholds a record or a part of a record or delays granting access to a record or part of a record after a written request for disclosure is made” the record requester may “bring an action for mandamus asking a court to order release of the record” or may request the district attorney to bring a mandamus action.
Except as provided in this paragraph, the court shall award reasonable attorney fees, damages of not less than $100, and other actual costs to the requestor if the requester prevails in whole or in substantial part in any action filed under sub. (1) relating to access to a record or part of a record under [
Wis. Stat. §] 19.35(1)(a) .
(Emphasis added). Besides attorney‘s fees, the law also specifies that the circuit court shall award actual damages if “the authority acted in a willful or intentional manner” and may award punitive damages if the authority “arbitrarily and capriciously denied or delayed response to a request or charged excessive fees.”
¶14
¶15 The answer to this question in Wisconsin and in federal courts has centered on two alternatives: a causation-based approach, and an interpretation that requires some judicially sanctioned change in the parties’ legal relationship. The latter definition is endorsed by the United States Supreme Court and is the better interpretation of “prevails” in
1. Causal-Nexus Test
¶16 In Wisconsin, the court of appeals first considered the meaning of
¶17 It found persuasive the D.C. Circuit‘s decision in Cox v. United States Department of Justice, 601 F.2d 1 (D.C. Cir. 1979) (per curiam). The court in Cox held that a party could seek fees under FOIA “in the absence of a court order” if “prosecution of the action could reasonably be regarded as necessary to obtain the information and that a causal nexus exists between that action and the agency‘s surrender of the information.” Id. at 6 (citations omitted). This later became known as the “catalyst theory,” an interpretation “which posits that a plaintiff is a ‘prevailing party’ if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant‘s conduct.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep‘t of Health and Hum. Res., 532 U.S. 598, 601 (2001). The court of appeals in Racine I adopted “the Cox analysis for use in determining whether a party has ‘prevail[ed] in whole or in substantial part‘” under
¶18 Although the test has evolved somewhat since Racine I,7 the court of
in a public records action if there is a causal nexus between the requestor bringing the action and the defendant providing the requested records.
2. Judicially Sanctioned Change in the Parties’ Legal Relationship
¶19 Federal courts have not followed in step, however. In 2001, the United States Supreme Court concluded that the D.C. Circuit‘s approach in Cox—the case Racine I relied on—is inconsistent with the proper understanding of what it means to prevail in a lawsuit. Buckhannon, 532 U.S. 598. In Buckhannon, the Court considered the meaning of the term “prevailing party” in the fee-shifting provisions of the Fair Housing Amendments Act (FHAA) and the Americans with Disabilities Act (ADA).8
Id. at 601. It expressly rejected Cox‘s causation-based interpretation, concluding instead that “the term ‘prevailing party‘” refers to “one who has been awarded some relief by the court.” Id. at 603.
¶20 The Court explained that “prevailing party” is a “legal term of art.” Id. at 603. It referenced Black‘s Law Dictionary, which defined “prevailing party” as a “party in whose favor a judgment is rendered, regardless of the amount of damages awarded . . . . —Also termed successful party.” Id. (citing Black‘s Law Dictionary 1145 (7th ed. 1999)). The question therefore was simply whether there was a “court-ordered change in the legal relationship between the plaintiff and the defendant.” Id. at 604 (alteration omitted) (quoting another source). And while a consent decree incorporating a settlement agreement may suffice to establish one‘s status as a prevailing party, a “defendant‘s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit” does not suffice because it “lacks the necessary judicial imprimatur on the change.” Id. at 605.
¶21 In Buckhannon‘s aftermath, federal circuit courts promptly applied its interpretative analysis to the term “substantially prevailed” in FOIA‘s fee shifting provision. E.g., Oil, Chem. & Atomic Workers Int‘l Union, AFL-CIO v. Dep‘t of Energy, 288 F.3d 452, 456-57 (D.C. Cir. 2002); Union of Needletrades, Indus. & Textile Emps., AFL-CIO, CLC v. U.S. Immigr. & Naturalization Serv., 336 F.3d 200, 205-06 (2d Cir. 2003). Shortly thereafter, however, Congress amended FOIA to state that “a complainant has substantially prevailed if the complainant has obtained relief through either — (I) a judicial order, or an enforceable written agreement or consent degree; or (II) a voluntary or unilateral change in position by the agency, if the complainant‘s claim in not insubstantial.”
¶22 The understanding of prevailing party expressed in Buckhannon is not unique to federal law. It has a long history in Wisconsin as well. In our earliest laws, numerous statutory provisions tied the concept of prevailing in an action to success in a judicial proceeding. E.g.,
(“Therefore, interlocutory costs . . . must follow the final adjudication, and may be taxed, by items, by the ultimately prevailing party . . . .“).11 Conversely, we have explained that a party does not prevail if “there is no final determination on the merits and the action does not end in judgment for one party or the other.” DeGroff v. Schmude, 71 Wis. 2d 554, 568, 238 N.W.2d 730 (1976).
¶23 When the legislature uses a legal term of art with a broadly accepted meaning — as it has here with “prevails” in
now given the absence of any evidence that it was understood to have that meaning when enacted.
¶24 Buckhannon‘s interpretation comports with Wisconsin law. A causation or catalyst theory is not a comfortable fit with statutory text that allows recovery of attorney‘s fees “if the requester prevails in whole or in substantial part in any action.”
3. Friends Is Not Entitled to Attorney‘s Fees
¶25 Previously, under the causal-nexus test, the court of appeals has held that although a mandamus action under
B. The Draft Contract Was Properly Withheld
¶26 To explain why the City properly withheld the draft contract, we begin by discussing the general principles which animate the public records law.
1. Public Records Law General Principles
¶27 Wisconsin‘s public records law begins with a strong declaration of public policy which provides in part, “The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.”
¶29 As previously discussed, if a record is withheld in whole or in part, or its release delayed, an action for mandamus can be brought to compel the record‘s release.
2. The Record Was Not Unlawfully Withheld
¶30 The City‘s decision to withhold the draft contract was based on the balancing test.16 Although record custodians are obligated to conduct their own analysis, we conduct the public policy analysis the balancing test calls for independently. Wis. Newspress, Inc. v. Sch. Dist. of Sheboygan Falls, 199 Wis. 2d 768, 784, 546 N.W.2d 143 (1996).
¶31 The City cited
¶32 Invoking the language in
¶33 The circuit court correctly concluded the reasons set forth in the City‘s letter supported temporarily withholding the draft contract. Without question, the public interest in matters of municipal spending and development is significant. There is good reason for the public to know how government spends public money. This ensures citizen involvement and accountability for public funds. However, contract negotiation often requires a different calculus.
¶34 As illustrated here, the City communicated its belief that it was more likely to secure a better deal if its negotiations were not revealed early. The City was in talks with both Big Top Baseball and Northwoods League to bring a baseball team to the City. Revealing its hand by disclosing the terms of a draft contract with Big Top Baseball could have negatively impacted the City‘s ability to bring a baseball team to the City on favorable terms. While no third-party competitor for a contract with Big Top Baseball or the Northwoods League was identified, this does not diminish the competitive nature of the negotiation. In a competitive bilateral negotiation, confidentiality is often critical to advancing a negotiation strategy. An identified third party may increase competition, but it is not a prerequisite for a competitive negotiation.
¶35 These negotiations were by no means a secret. In fact, in response to the records request, the City turned over other “correspondence with Big Top Baseball or Northwoods League Baseball related to a baseball project in Frame Park during 5-1-16 to the present time.” The only responsive document the City withheld was the draft contract; every other responsive document was provided in a timely manner.
¶36 Moreover, while City employees were on-the-ground operators in a competitive negotiation with Big Top Baseball, it was ultimately the Common Council that bore the responsibility for the contract. “The general rule of municipal law
¶37 Under these circumstances, the City‘s interest in withholding the draft contract to protect its bargaining position until the Common Council had the opportunity to consider the contract outweighed the public‘s interest in immediate release. The City properly applied the balancing test and did not violate the public records law by temporarily withholding the draft contract, nor did it delay release of the contract unreasonably. Accordingly, regardless of whether the issue of attorney‘s fees is moot, Friends is not entitled to attorney‘s fees because it did not prevail in whole or in in substantial part on the merits of its mandamus action.
III. CONCLUSION
¶38 When ascertaining if a records requester is entitled to attorney‘s fees as a part of a mandamus action under
By the Court.—The decision of the court of appeals is reversed.
¶39 REBECCA GRASSL BRADLEY, J. (concurring). “What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.” Letter from James Madison, to Henry Lee (June 25, 1824).1 The judiciary risks destabilizing the law and usurping the legislature‘s law-making power when it fails to give “legal terms of art” in a statute their “accepted legal meaning.” See Bank Mut. v. S.J. Boyer Const., Inc., 2010 WI 74, ¶23, 326 Wis. 2d 521, 785 N.W.2d 462 (quoting Estate of Matteson v. Matteson, 2008 WI 48, ¶22, 309 Wis. 2d 311, 749 N.W.2d 557). In a series of cases interpreting the public records law, the court of appeals modified the accepted legal meaning of a “prevailing party” in a court proceeding. That interpretive error requires correction.
¶40
¶41 The court of appeals has repeatedly failed to give the legal term of art in
Education Association I Line, in two cases,5 (the “Young/Portage Cases“) the court of appeals arguably abandoned the catalyst theory. According to the Young/Portage Cases, if a custodian improperly invokes an exception to the public records law and provides the requested record after the filing of a mandamus action, the requester is deemed to have prevailed and is entitled to attorney fees.
¶42 In this case, the court of appeals6 erred in applying the Young/Portage Cases, embracing a purposivist and consequentialist approach to statutory interpretation, in derogation of the textualist approach Wisconsin courts are bound to follow. See State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110.7 Because these decisions are objectively wrong, we must overturn them in fulfilling our duty to properly interpret the law. See Wenke v. Gehl Co., 2004 WI 103, ¶21, 274 Wis. 2d 220, 682 N.W.2d 405 (“We are not required to adhere to interpretations of statutes that are objectively wrong.” (internal citations omitted)).
¶43 I write separately because the majority/lead opinion8 does not acknowledge
I. BACKGROUND
A. The Public Records Request
¶44 Friends was concerned about contract negotiations between the City of Waukesha (“City“) and Big Top Baseball (“Big Top“) to re-purpose Frame Park into a for-profit baseball stadium. Friends filed a public records request with the City in October 2017. The City disclosed some requested records, but withheld drafts of a proposed contract between the City and Big Top. In a letter to Friends, the City Attorney explained the City temporarily withheld the draft contracts because: (1) They had not yet been reviewed by the City‘s Common Council; (2) under
B. The Mandamus Action
¶45 Friends learned the City Council might review the draft contracts at a meeting on December 19, 2017. The day before the meeting, Friends filed a mandamus action under
¶46 The City moved for summary judgment, arguing the action was moot because it had turned over all responsive records—including the draft contracts. Friends countered that a live controversy existed regarding whether it could be awarded attorney fees. It argued: “The issue at stake here would never be litigated if a City could withhold records and then produce them after the court action was filed. The issue at stake is whether the exception invoked by the City was applicable under the law and thus validly invoked.” Specifically, Friends argued the
¶47 The circuit court granted the City‘s summary judgment motion.10 It concluded Friends did not prevail in the action and therefore was not entitled to an award of attorney fees under
the draft contracts because the exception on which it relied no longer applied.11
C. The Appeal
¶48 The court of appeals reversed the circuit court and remanded with directions for the circuit court to determine the amount of attorney fees to be awarded.12 It began by noting
¶49 The court of appeals’ reasoning seemed to rest on a desire to avoid what that court considered to be the consequences of bad public policy because interpreting the statute according to its text might encourage custodians to engage in bad-faith gamesmanship.15 Specifically, a custodian might withhold requested records—perhaps in bad faith—but if litigation ensues, only then turn over a requested record.16
Instead of analyzing the statutory text, the court opted to incentivize “voluntary compliance” by increasing the risk custodians face if an action is brought.17
¶50 To reach its conclusion, the court of appeals endeavored to “reconcile what, at least superficially, appears to be inconsistent language from prior decisions addressing how and whether a public records plaintiff can recover attorney fees following voluntary release during litigation.”18 The Racine Education Association I Line unambiguously requires the requester to show the action was a cause of the release of the record. E.g., WTMJ, Inc. v. Sullivan, 204 Wis. 2d 452, 458, 555 N.W.2d 140 (Ct. App. 1996) (quoting State ex rel. Vaughan v. Faust, 143 Wis. 2d 868, 871, 422 N.W.2d 898 (Ct. App. 1988)). In the Young/Portage Cases, however, the court of appeals arguably eliminated the element of causation for at least a subset of disputes in which the custodian withheld the record in reliance on an exception rather than due to “unavoidable delays.” See State ex rel. Young, 165 Wis. 2d 276, 292-93, 477 N.W.2d 340 (Ct. App. 1991); see also Portage Daily Reg. v. Columbia Cnty. Sheriff‘s Dep‘t, 2008 WI App 30, ¶18, 308 Wis. 2d 357, 746 N.W.2d 525. The Young/Portage Cases focused on whether the custodian was, in fact, entitled to withhold the record rather than what caused its release.
¶51 In this case, the court of appeals applied the Young/Portage Cases.19 The court also relied heavily on Church of Scientology of California v. United States Postal Services, 700 F.2d 486 (9th Cir. 1983), abrogated in part on other grounds as recognized by First Amendment Coalition v. United States Department of Justice, 878 F.3d 1119, 1127 (9th Cir. 2017) (lead opinion). Under that case, three factors determine whether a requester prevailed: “(1) when the documents were released; and (2) what actually triggered the documents’ release . . . ; and (3) whether the . . . [requester] was entitled to the documents at an earlier time in view of the fact that the exemption . . . [no longer applied].” Id. at 492. Our court of appeals deemed this three-factor test “a more flexible inquiry, one that permits consideration of factors other than causation.”20
¶52 Notably, the court of appeals seemed to prioritize the third factor:
The third factor—whether the requester was entitled to the record at an earlier time—should control where a delay in a voluntary release can be attributed to the authority‘s reliance on a public records exception. Where that is the case the trial court must scrutinize the claimed exception, rather than whether the lawsuit caused the release, to determine whether a requesting party has prevailed[.21]
Applying this third factor—and seemingly only this factor—the court of appeals concluded:
Here, there can be no question that the City withheld the draft contract on the claimed basis that a public records exception required nondisclosure; it later released the contract because it believed there was no longer a “competitive or bargaining” rationale to continue withholding it. There also is no doubt that the delay in disclosing this document . . . was not insignificant and the triggering event (according to the City) was the expiration of the exception on which nondisclosure was based. . . . Friends’ claim for attorney‘s fees must hinge on whether the City appropriately invoked WIS. STAT. § 19.85(1)(e) to withhold disclosure until after the December 19 common council meeting.[22]
The court of appeals then turned to whether the exception was properly invoked, concluding Friends—not the City—was entitled to summary judgment, even though Friends never moved for summary judgment.23 Accordingly, it reversed the circuit court and remanded the case, directing the circuit court to calculate the appropriate award of attorney fees to Friends. The majority/lead opinion concludes the court of appeals erroneously held the exception codified in
II. ANALYSIS
A. Standard of Review
¶53 We review a grant of summary judgment independently. Kemper Indep. Ins. v. Islami, 2021 WI 53, ¶13, 397 Wis. 2d 394, 959 N.W.2d 912 (quoting Talley v. Mustafa, 2018 WI 47, ¶12, 381 Wis. 2d 393, 911 N.W.2d 55). Summary judgment is appropriate if no material facts are at issue and a moving party is entitled to judgment as a matter of law. See
¶54 Whether a requester prevailed in an action despite the absence of favorable court relief requires us to interpret
B. Stare Decisis & Court of Appeals Precedent
¶55 The Latin term “stare decisis” means “to stand by things decided.” Stare decisis, Black‘s Law Dictionary. Sometimes called “[t]he doctrine of precedent,” stare decisis beseeches judges to “follow earlier judicial decisions when the same points arise again in litigation.” Id.
¶56 Stare decisis encompasses two related but distinct concepts—vertical stare decisis and horizontal stare decisis:
Vertical stare decisis applies between higher and lower courts in a single system—for example, the Wisconsin Supreme Court and the Wisconsin court of appeals and circuit courts . . . . The doctrine requires lower courts to faithfully apply the decisions of higher courts in their system—even if the lower courts believe those decisions erroneous—unless those higher courts have overturned them. This doctrine, that higher courts bind lower courts, is absolute and near-universally accepted . . . . Horizontal stare decisis . . . operates within the same court, requiring it to adhere to its own prior decisions . . . .
Daniel R. Suhr & Kevin LeRoy, The Past and the Present: Stare Decisis in Wisconsin Law, 102 Marq. L. Rev. 839, 844-45 (2019). Compare Vertical stare decisis, Black‘s Law Dictionary (“The doctrine that a court must strictly follow the decisions handed down by higher courts within the same jurisdiction.“), with Horizontal stare decisis, Black‘s Law Dictionary (“The doctrine that a court, esp. an appellate court, must adhere to its own prior decisions, unless it finds compelling reasons to overrule itself.“).
¶57 We have recognized a third form of stare decisis, which may be unique to Wisconsin: “the doctrine of stare decisis applies to published court of appeals opinions and requires this court ‘to follow court of appeals precedent unless a compelling reason exists to overrule it.‘” Manitowoc County v. Samuel J.H., 2013 WI 68, ¶15 n.2, 349 Wis. 2d 202, 833 N.W.2d 109 (quoting Wenke, 274 Wis. 2d 220, ¶21); see also
¶58 This third type of stare decisis is not recognized in other jurisdictions in America. See Bryan A. Garner et al., The Law of Judicial Precedent 255 (2016) (“Inferior-court decisions have less precedential worth because courts superior in rank aren‘t bound by them and may overrule, vacate, reverse, or depublish them.“); H. Campbell Black, The Principle of Stare
¶59 This third form of stare decisis is “somewhat paradoxical[.]” Suhr & LeRoy, Stare Decisis in Wisconsin Law, at 844 n.25. Article VII of the Wisconsin Constitution unequivocally makes this court “a supreme judicial tribunal over the whole state[.]” Petition of Heil, 230 Wis. 428, 436, 284 N.W. 42 (1938) (per curiam) (quoting Attorney General v. Chi. & N.W. Ry., 35 Wis. 425, 518 (1874)). The court of appeals was created in 1978 by constitutional amendment so that this court could focus on its law-developing function. Matthew E. Garbys, Comment, A Shift in the Bottleneck: The Appellate Caseload Problem Twenty Years After the Creation of the Wisconsin Court of Appeals, 1998 Wis. L. Rev. 1547, 1548. A 1973 report to the governor explained:
Supreme Court is cast in the role of a “case-deciding court“—one which merely reacts to individual cases and thus slights its law-stating function.In the rush to cope with its increasing calendar, the Supreme Court must invariably sacrifice quality for quantity. Increasing appellate backlogs necessarily produce a dilution in craftsmanship. . . . The
. . . .
The size of this caseload can only have a detrimental effect on the quality of the Supreme Court‘s work. Cases involving major questions of substantive law may be decided on the basis of superficial issues.
Citizens Study Comm. on Jud. Org., Report to Governor Patrick J. Lucey 78 (1973) (on file at the David T. Prosser Jr. State Law Library).
¶60 Deference to decisions of the court of appeals conflicts with this court‘s constitutional role as the “final arbiter” on questions of Wisconsin law. See Tetra Tech EC, Inc. v. Wis. Dep‘t of Revenue, 2018 WI 75, ¶78, 382 Wis. 2d 496, 914 N.W.2d 21 (lead opinion) (explaining this court is the “final arbiter” on questions of state law). By lending court of appeals decisions stare decisis effect, we give the court of appeals power that is inconsistent with the constitutional structure of the Wisconsin judiciary. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (noting this court has been “designated by the constitution and the legislature as a law declaring court” (quoting State ex rel. La Crosse Tribune v. Cir. Ct. for La Crosse Cnty., 115 Wis. 2d 220, 229-30, 340 N.W.2d 460 (1983))); State ex rel. Wis. Senate v. Thompson, 144 Wis. 2d 429, 436, 424 N.W.2d 385 (1988) (“[I]t is this court‘s function to develop and clarify the law.” (citations omitted)); State v. Hermann, 2015 WI 84, ¶154, 364 Wis. 2d 336, 867 N.W.2d 772 (Ziegler, J., concurring) (“Unlike a circuit court or the court of appeals, the supreme court serves a law development purpose[.]“); Sussex Tool & Supply, Inc. v. Mainline Sewer & Water, Inc., 231 Wis. 2d 404, 416 n.4, 605 N.W.2d 620 (Ct. App. 1999) (“We are primarily an error-correcting court, not a law-declaring court.” (citation omitted)); State v. Grawien, 123 Wis. 2d 428, 432, 367 N.W.2d 816 (Ct. App. 1985) (“The Wisconsin Supreme Court, unlike the court of appeals, has been designated by the constitution and the legislature as a law-declaring court.
¶61 The heavy docket of the court of appeals renders that court better suited for deciding cases in accordance with established precedent rather than formulating new precedent itself:
One reason why lower-court decisions are often unsuited to establish precedent is the nature of the decisional process itself. Generally, lower-court decisions are shorter than published opinions of higher courts and contain less reasoning because those courts’ primary job is to rule on cases then pending, not shape the law. . . . In states that provide a right of first appeal, intermediate appellate courts may . . . have a heavy caseload. So intermediate appellate courts . . . don‘t have as much time or as many resources to devote to resolving a case as high courts with discretionary jurisdiction. The press of judicial business may result in opinions that aren‘t so thoroughly researched and closely reasoned. They may prove therefore less valuable as precedent.
Garner et al., The Law of Judicial Precedent, at 256-57. In Wisconsin, litigants have a constitutional right to a direct appeal, and the legislature has designated the court of appeals as the institution responsible for effectuating that right. See State v. Pope, 2019 WI 106, ¶21, 389 Wis. 2d 390, 936 N.W.2d 606 (citing
¶62 Perhaps implicitly recognizing that giving stare decisis effect to court of appeals decisions is inconsistent with our constitutional structure, we have overturned court of appeals decisions without even mentioning stare decisis. See, e.g., Waukesha County v. E.J.W., 2021 WI 85, ¶¶37-38, 399 Wis. 2d 471, 966 N.W.2d 590 (overturning parts of Marathon County v. R.J.O., 2020 WI App 20, 392 Wis. 2d 157, 943 N.W.2d 898 without any discussion of stare decisis). Twice this term, we have suggested court of appeals decisions are entitled to significantly less weight than our own decisions. See State v. Yakich, 2022 WI 8, ¶31, 400 Wis. 2d 549, 970 N.W.2d 12 (“While respecting court of appeals precedent is an important consideration, it is not determinative.” (quoting State v. Lira, 2021 WI 81, ¶45, 399 Wis. 2d 419, 966 N.W.2d 605)); Lira, 399 Wis. 2d 419, ¶45 (“This court has never applied the five factors commonly used in a decision to overturn supreme court caselaw to override an interpretation derived solely from the court of appeals. Further, we have shown a repeated willingness to interpret and apply the law correctly, irrespective of a court of appeals decision that came to a different conclusion.”
¶63 This court‘s practice, if not always its words, confirms that published court of appeals decisions are not entitled to stare decisis effect. These decisions are precedential; lower courts throughout the state must follow them. The supreme court, however, is not so bound. Referencing stare decisis in the context of court of appeals precedent has created confusion with no benefit. We should take this opportunity to unequivocally correct this court‘s misspeak in Manitowoc County.
¶64 Regardless, stare decisis is a judicially-created policy and “not an inexorable command;” for this reason, we will overturn precedent if it is objectively wrong. Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶97, 264 Wis. 2d 60, 665 N.W.2d 257 (citing Hohn v. United States, 524 U.S. 236, 251 (1998)); see also Smith v. Allwright, 321 U.S. 649, 665 (1944) (“[W]hen convinced of former error, this Court has never felt constrained to follow precedent.“). Historically, the judiciary has prioritized declaring the law correctly over perpetuating errors in judgment in the name of stability in the law. “We cannot mistake ‘the law’ for ‘the opinion of the judge’ because “the judge may mistake the law.‘” Johnson v. Wis. Elections Comm‘n, 2022 WI 14, ¶259, 400 Wis. 2d 626, 971 N.W.2d 402 (Rebecca Grassl Bradley, J., dissenting) (quoting Introduction, William Blackstone, Commentaries *71). Because judges are not infallible, their decisions must not be insulated from later review:
A Court is not bound to give the like judgment, which had been given by a former Court, unless they are of opinion that the first judgment was according to law; for any Court may err; and if a Judge conceives, that a judgment given by a former Court is erroneous, he ought not in conscience to give the like judgment, he being sworn to judge according to law. Acting otherwise would have this consequence; because one man has been wronged by a judicial determination, therefore every man, having a like cause, ought to be wronged also.
Kerlin‘s Lessee v. Bull, 1 Dall. 175, 178 (Pa. 1786).
¶65 To avoid the injustice of subjecting parties in perpetuity to erroneous holdings, “[t]he primary and most important factor to weigh in considering whether to overrule an earlier decision is its correctness.” Johnson, 400 Wis. 2d 626, ¶259 (quoting Garner et al., The Law of Judicial Precedent, at 397). “[W]e do more damage to the rule of law by obstinately refusing to admit errors, thereby perpetuating injustice, than by overturning an erroneous decision.” State v. Roberson, 2019 WI 102, ¶49, 389 Wis. 2d 813, 935 N.W.2d 813 (quoting Johnson Controls, 264 Wis. 2d 60, ¶100). “By applying demonstrably erroneous precedent instead of the relevant law‘s text[,] . . . the Court exercises ‘force’ and ‘will,’ two attributes the People did not give it.” Gamble v. United States, 139 S. Ct. 1960, 1981 (2019) (Thomas, J., concurring) (quoting The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed. 1961)).
¶66 Although judges are particularly reluctant to depart from the doctrine of stare decisis with respect to a holding repeatedly applied, “[e]ven a series of decisions are not always conclusive evidence of what is law; and the revision of a decision very
¶67 Revisiting erroneous precedent is particularly imperative when the precedent under review was established by the Wisconsin Court of Appeals. As explained in our seminal decision in Cook v. Cook, the court of appeals lacks constitutional authority to overrule, modify, or withdraw language from its published decisions. 208 Wis. 2d at 189-90. Consequently, a single erroneous interpretation can easily permeate a line of cases without any reconsideration by the court of appeals of its correctness. In Cook, we encouraged the court of appeals to “signal its disfavor to litigants, lawyers and this court by certifying the appeal to this court, explaining that it believes a prior case was wrongly decided.” 208 Wis. 2d at 189. We also noted the court of appeals could apply its prior decision while expressly stating its concern that the decision was erroneous. Id. As an empirical matter, however, the court of appeals rarely exercises these options. In this case, for example, the court of appeals acknowledged conflicting precedent but nonetheless utilized neither of the options we outlined in Cook.27 Last term we received only
¶68 The people of Wisconsin established this court as the supreme judicial tribunal and in fulfilling our duty to declare the law in this state, we may overturn any incorrect court of appeals opinion with no consideration of the stare decisis doctrine. Of particular relevance in this case, “the principle of stare decisis . . . does not require us ‘to adhere to interpretations of statutes that are objectively wrong.‘” Samuel J.H., 349 Wis. 2d 202, ¶5 n.2 (quoting Wenke, 274 Wis. 2d 220, ¶21). “Reflexively cloaking every judicial opinion with the adornment of stare decisis threatens the rule of law, particularly when applied to interpretations wholly unsupported by the statute‘s text.” Manitowoc v. Lanning, 2018 WI 6, ¶81 n.5, 379 Wis. 2d 189, 906 N.W.2d 130 (Rebecca Grassl Bradley, J., concurring). While court of appeals opinions may be helpful to this court in ascertaining a statute‘s meaning, “[i]t should be borne in mind that the mere text [of the law], and only the text . . . was adopted[.]” Frederick Douglass, The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?, Speech Delivered at Glasgow, Scotland (March 26, 1860); see also Michael Sinclair, Traditional Tools of Statutory Interpretation 13 (1942) (“After the plain text of a statute, precedent is the most significant, the most ubiquitous, and the most powerful of the traditional tools of statutory construction.” (emphasis added)). “By recognizing that ‘a law is the best expositor of itself,’ courts can faithfully fulfill their function as neutral arbiters.” Wis. Jud. Comm‘n v. Woldt, 2021 WI 73, ¶92, 398 Wis. 2d 482, 961 N.W.2d 854 (Rebecca Grassl Bradley, J., concurring/dissenting) (quoting Pennington v. Coxe, 6 U.S. (2 Cranch) 33, 52 (1804)).
C. The Court of Appeals Precedent
¶69 The Racine Education Association I Line is objectively wrong, and the Young/Portage Cases applied by the court of appeals in this case depart even further from proper statutory interpretation. I would overturn the line and the Young/Portage Cases and instead apply the actual statutory text.
¶70 For context, the legislature rewrote Wisconsin‘s public record laws in 1982, inspired in part by Congress‘s enactment of the Freedom of Information Act (FOIA) in the late 1960s. Linda De La Mora, Comment, The Wisconsin Public Records Law, 67 Marq. L. Rev. 65, 65 (1983). FOIA permitted federal district courts to award attorney fees to requesters who “substantially prevailed” in an action.
¶71 A student-authored law review comment published in 1983 suggested Wisconsin courts should look to “existing federal case law” to interpret
1. The Racine Education Association I Line
¶72 In 1986, the court of appeals interpreted
¶73 The court of appeals reversed and remanded for factfinding. Id. at 330. Ostensibly following the student comment‘s guidance, the court looked to federal decisions, primarily Cox v. United States Department of Justice, 601 F.2d 1 (D.C. Cir. 1979) (per curiam), abrogated on other grounds by Benavides v. Bureau of Prisons, 993 F.2d 257 (D.C. Cir. 1993). Cox held a requester could be deemed to have prevailed, even in the absence of favorable relief from a court, if it showed: (1) its action “could reasonably be regarded as necessary,” and (2) “a causal nexus exists between that action and the agency‘s surrender of information.” Id. at 6. In Racine Education Association I, the court explicitly adopted Cox‘s holding. 129 Wis. 2d at 326-28. The court stated the case, on remand, would turn “largely [on] a question of causation[.]” Id. at 327.
¶74 At least five subsequent cases endorsed the causal nexus requirement articulated in Racine Education Association I. See WTMJ, Inc., 204 Wis. 2d at 460; Eau Claire Press Co. v. Gordon, 176 Wis. 2d 154, 162, 499 N.W.2d 918 (Ct. App. 1993); State ex rel. Eau Claire Leader-Telegram v. Barrett, 148 Wis. 2d 769, 772-73, 436 N.W.2d 885 (Ct. App. 1989); Racine Educ. Ass‘n v. Bd. of Educ. for Racine Unified Sch. Dist., 145 Wis. 2d 518, 522-23, 427 N.W.2d 414 (Ct. App. 1988); Vaughan, 143 Wis. 2d at 871-73. Despite each case invoking the causal nexus test, some reached apparently contradictory results. For example, in State ex rel. Eau Claire Leader-Telegram v. Barrett, a newspaper requested sealed settlement documents filed in several circuit court cases (the “Edson case“). 148 Wis. 2d at 770. Eventually, the newspaper filed a mandamus action. The clerk of court and the circuit court judge who presided over the Edson case, Judge Roderick Cameron, reached a stipulation with the newspaper, under which Judge Cameron agreed to release the records if no party to the Edson case objected. Id. at 771. Several parties did object, the newspaper intervened to argue for disclosure, and Judge Cameron released an edited version of the documents. Id. The newspaper moved for an award of attorney fees in the mandamus action. The court of appeals concluded the newspaper‘s intervention in the Edson case caused the release of the records—not the mandamus action—so it was not entitled to attorney fees. Id. at 772.
¶75 In Eau Claire Press Co. v. Gordon, 176 Wis. 2d 154, the court of appeals reached the opposite conclusion. A newspaper requested records from a city related to a settlement in a discrimination case. Id. at 157. The city attorney denied the request, citing a confidentiality agreement the city had entered into with the plaintiff. Id. The newspaper
2. The Young/Portage Cases
¶76 In two cases, the court of appeals departed from its own precedent requiring a causal nexus. In State ex rel. Young v. Shaw, 165 Wis. 2d 276, the requester was allegedly involved in a “hit and run” in February 1989. Id. at 283. He was charged with leaving the scene of an accident on March 6. Id. On March 9, the requester made a written demand to the district attorney‘s office for the officer‘s narrative and photographs. Id. at 283-84. On March 22, the assistant district attorney responded that, because the State filed criminal charges, his demand was governed by discovery statutes applicable to criminal cases, rather than
¶77 The court of appeals concluded the requester prevailed in his mandamus action. It acknowledged the Racine Education Association I Line requires a requester to establish “a causal nexus” between the action and the release of the record. Id. at 292-93 (citing Racine Educ. Ass‘n I, 129 Wis. 2d at 328 and quoting Cox, 601 F.2d at 61). In the admitted absence of a causal nexus, the court fashioned an exception based on what the court considered an unreasonable delay in the release of the officer‘s narrative and the photographs—grounded in a good faith but legally unavailing reliance on the criminal discovery statutes. See id. at 293-95. Under “these circumstances,” the court reasoned, to “deprive” a requester of his ability to recover attorney fees would “frustrate and indeed negate the purpose of the open records law rather than encourage compliance with it.” Id. at 293. The court nevertheless concluded the requester was not entitled to attorney fees because he represented himself pro se—apparently, in the court‘s view, that would also frustrate and indeed negate the law‘s purpose. Id. at 295-96.
¶78 In the second case to ignore the causal nexus text, a newspaper requested a copy of an investigative report from a sheriff. Portage Daily Reg., 308 Wis. 2d 357, ¶1. The sheriff denied the request because the district attorney was considering criminal charges. Id. The newspaper filed a mandamus action;
D. The Meaning of Prevailing Party
¶79 The court of appeals’ varying interpretations of the statute governing the recovery of attorney fees in public records cases are “objectively wrong.” Wenke, 274 Wis. 2d 220, ¶21.
¶80 As we explained in Kalal, “[s]tatutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.” 271 Wis. 2d 633, ¶45 (citing Bruno v. Milwaukee County, 260 Wis. 2d 633, ¶¶18, 20, 260 Wis. 2d 633, 660 N.W.2d 656). “Legal terms of art” qualify as technical words or phrases, so we give them “their accepted legal meaning.” Bank Mut., 326 Wis. 2d 521, ¶23 (quoting Estate of Matteson, 309 Wis. 2d 311, ¶22).
¶81 “When the legislature adopts a phrase from the common law that has a specific legal meaning and does not otherwise define it, we presume that the legislature adopts the phrase‘s specific legal meaning.” State v. Matthews, 2021 WI 42, ¶9, 397 Wis. 2d 1, 959 N.W.2d 640 (citing Bank Mut., 326 Wis. 2d 521, ¶39 and Strenke v. Hogner, 2005 WI 25, ¶28, 279 Wis. 2d 52, 694 N.W.2d 296); see also Buckhannon, 532 U.S. at 615-16 (Scalia, J., concurring) (“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning[.]” (quoting Morissette v. United States, 342 U.S. 246, 263 (1952))); 2A Sutherland Statutory Construction § 47:30 n.1 (7th ed. updated Nov. 2020) (“Courts presume that a legislature that employs a term of art knows and adopts the cluster of ideas attached to each borrowed word in the body of learning from which it is taken.” (citations omitted)); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 320 (2012) (“A statute that uses a common-law term, without defining it, adopts its common-law meaning.“).
¶82 Consultation of legal dictionaries is not only appropriate, but, to some extent, necessary to properly interpret
¶83 The meaning of “prevailing party” had endured in the law, unaltered. Black‘s Law Dictionary notes that “prevailing party” is synonymous with “successful party.” Prevailing party, Black‘s Law Dictionary. Another legal dictionary, published in 1920, provides a single definition of “successful“: “The word ‘successful’ . . . in relation to the allowance of attorney fees to the plaintiff . . . means a termination of the action in his favor by a decree[.]” Successful, Legal Definitions (1920) (emphasis added) (citation omitted).
¶84 A legal dictionary from 1879 illustrates the meaning of “prevail” by summarizing the holdings of five cases. Prevail, Dictionary of Terms and Phrases Used in American or English Jurisprudence (1879).
- In Bangor & Piscataquis R. R. Co. v. Chamberlain, 60 Me. 285 (1872), a landowner sued a railroad company for damages stemming from a taking. Id. at 285. County commissioners awarded the landowner $650. Id. at 286. The railroad company appealed. Id. On appeal, a jury reduced the award to $435. Id. A Maine statute provided that: “When an appeal is taken, the losing party is to pay the cost thereon.” Id. The Maine Supreme Court had to decide which party was to pay the costs of the appeal, framing the issue as: “[W]hich was the prevailing party?” Id. Logically, because the losing party did not prevail, the court held the landowner prevailed, concluding he “successfully maintained his claim for damages[.]” Id.
- In Hawkins v. Nowland, 53 Mo. 328 (1873), the Missouri Supreme Court concluded that the plaintiff was a “prevailing party,” although the favorable judgment he recovered was not “what he claimed[.]” 53 Mo. at 330.
- In Henry v. Miller, 61 Me. 105 (1872), the Maine Supreme Court concluded a creditor was a “prevailing party” even though he obtained a judgment for less than he sought. 61 Me. at 105.
- In Rogers v. City of St. Charles, 54 Mo. 229 (1873) (per curiam), the Missouri Supreme Court concluded a city that obtained a verdict of condemnation was a “prevailing party,” entitled to costs. 54 Mo. at 233-34.
- In Weston v. Wright, 45 Vt. 531 (1873), the Vermont Supreme Court concluded an orator had “prevailed” because he had established he was entitled to a decree, although the decree was less favorable than the relief he sought. 45 Vt. at 535-37.
¶85 Consistent with these settled definitions, a statute renumbered by this court in 1975 stated: ”Judgment. In such actions, when the plaintiff prevails, he shall, in addition to judgment for damages and costs, also have judgment that the nuisance be abated unless the court shall otherwise order.” Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975) (codified as amended at
¶86 As evidenced by its stable legal history, “‘[p]revailing party’ is not some newfangled legal term invented for use in late-20th-century fee-shifting statutes.” Buckhannon, 532 U.S. at 610. In Buckhannon, Justice Antonin Scalia wrote in concurrence he was aware of “no cases, state or federal” prior to 1976 that endorsed the catalyst theory. Id. at 611. After
¶87 To “prevail[] in whole or in substantial part in any action filed under sub. (1),” a requester must obtain through a court order at least some of the relief it sought. See Meinecke v. Thyes, 2021 WI App 58, ¶1, 399 Wis. 2d 1, 963 N.W.2d 816 (“[The plaintiff] contends she prevailed in substantial part in her mandamus action when the circuit court ordered the release of some but not all of the records that she requested from public officials. We agree.“).
¶88 The accepted legal meaning of “prevails . . . in any action” also matches its common, ordinary meaning. See Kalal, 271 Wis. 2d 633, ¶45 (citing Bruno, 260 Wis. 2d 633, ¶¶18, 20). In common parlance, prevailing in a mandamus action is not equivalent to obtaining access to a public record by other means. Justice Scalia illustrated the difference in his Buckhannon concurrence:
If a nuisance suit is mooted because the defendant asphalt plant has gone bankrupt and ceased operations, one would not normally call the plaintiff the prevailing party. And it would make no difference, as far as the propriety of that characterization is concerned, if the plant did not go bankrupt but moved to a new location to avoid the expense of litigation. In one sense the plaintiff would have “prevailed“; but he would not be the prevailing party in the lawsuit.
532 U.S. at 615. In designating a plaintiff who obtained access to records by means other than a court judgment a “prevailing party,” the court of appeals either excised “in any action filed under sub. (1)” from the statutory text or rewrote the phrase to say “after any action filed under sub. (1).” We have no power to rewrite the words chosen by the legislature. E.g., State v. Fitzgerald, 2019 WI 69, ¶30, 387 Wis. 2d 384, 929 N.W.2d 165.29
¶90 In Buckhannon, the plaintiff brought claims under the
¶91 The United States Supreme Court interpreted the meaning of “prevailing party” in fee-shifting schemes permitted in the FHAA31 and the ADA.32 Id. at 601. The Court stated:
Now that the issue is squarely presented, it behooves us to reconcile the plain language of the statutes with our prior holdings. We have only awarded attorney‘s fees where the plaintiff has received a judgment on the merits, or obtained a court-ordered consent decree . . . . Never have we awarded attorney‘s fees for nonjudicial alterations of actual circumstances.
Id. at 605-06 (second emphasis added) (internal quotations and citations omitted). The Court noted that “prevailing party” was a “rather clear” phrase, which did not encompass the catalyst theory. Id. at 607. It explicitly relied on Black‘s Law Dictionary. Id. at 603 (quoting Prevailing party, Black‘s Law Dictionary (7th ed. 1999)).
¶92 Buckhannon destroyed the foundation of the court of appeals precedent. The Racine Education Association I Line rests on federal decisions interpreting FOIA and employing the catalyst theory, specifically, Cox, 601 F.2d 1. Buckhannon abrogated Cox and similar federal cases. The Ninth Circuit recognized this in Oregon Natural Desert Association v. Locke, noting
¶93 Even if the United States Supreme Court had not disavowed the catalyst theory, our own court of appeals cases are nonetheless “unsound in principle.” See Roberson, 389 Wis. 2d 190, ¶50 (quoting Bartholomew, 293 Wis. 2d 38, ¶33). They failed to follow our well-established rule of statutory interpretation that legal terminology must be given its “accepted legal meaning.” Bank Mut., 326 Wis. 2d 521, ¶23 (quoting Estate of Matteson, 309 Wis. 2d 311, ¶22). Choosing alternative meanings, particularly to advance preferred policies, destabilizes the law. See Scalia & Garner, Reading Law, at 320. Additionally, judicial tampering with accepted legal meaning interferes with the legislature‘s ability to make law. See
¶94 Problematically, the Young/Portage Cases are principally grounded in public policy rather than the text of
¶95 Kalal rejected the very purposivism and consequentialism employed by the court of appeals in this case as well as its predecessors. “It is the enacted law, not the [legislature‘s] unenacted intent, that is binding on the public.” Kalal, 271 Wis. 2d 633, ¶44. Faithfulness to the text of a law rather than advancing an imagined purpose underlying its enactment or avoiding a consequence deemed unsavory (in the subjective opinion of the
The principles of statutory interpretation that we have restated here are rooted in and fundamental to the rule of law. Ours is “a government of laws not men,” and “it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated.” “It is the law that governs, not the intent of the lawgiver . . . . Men may intend what they will; but it is only the laws that they enact which bind us.”
Id., ¶52 (quoting Antonin Scalia, A Matter of Interpretation 17 (1997)); see also J. Times v. City of Racine Bd. of Police & Fire Comm‘r, 2015 WI 56, ¶117, 362 Wis. 2d 577, 866 N.W.2d 563 (Abrahamson, J., concurring) (explaining “it seems that the Newspaper was sandbagged” but nonetheless concluding “the Newspaper has not sufficiently tethered its argument to the language of
¶96 When courts lose sight of this first principle, when they “fail to follow the . . . letter of the positive law,” too easily are “the most valuable privileges of the people . . . rendered illusory” “under the pretense of explaining and extending them[.]” Francis Stoughton Sullivan, Lectures on the Constitution and Laws of England 64 (1805). Although judges may profess well-intentioned justifications for “improving” the law, “interpretive approaches can be used for all kinds of purposes, not just beneficent ones.” Bryan A. Garner, Old-Fashioned Textualism Is All About Interpretation, Not Legislating from the Bench, ABA J., Apr. 2019.34 Ignoring the law‘s plain meaning because the result in a particular case is, in a judge‘s subjective judgment, “appealing,” causes “considerable mischief.” Force v. Am. Family Mut. Ins., 2014 WI 82, ¶148, 356 Wis. 2d 582, 850 N.W.2d 866 (Roggensack, J., dissenting). “One can always do ‘more’ in pursuit of a goal, but statutes have limits.” N.A.A.C.P. v. Am. Fam. Mut. Ins., 978 F.2d 287, 298 (7th Cir. 1992). Those limits are prescribed by the people‘s representatives in the legislature and discarding them disrupts the constitutional order by allowing judges to act as policy-makers. “While textualism cannot prevent the incursion of policy preferences into legal analysis . . . without textualism, such encroachment is certain.” Woldt, 398 Wis. 2d 482, ¶92. The people of Wisconsin elect judges to interpret the law, not make it.
¶97 Even a cursory reading of the court of appeals precedent on awarding attorney fees in public records cases reveals it is “incoherent” and “unworkable in practice,” presenting yet another reason to overturn it. See Roberson, 389 Wis. 2d 190, ¶50 (quoting Bartholomew, 293 Wis. 2d 38, ¶33). In this case, the court of appeals struggled to “reconcile what, at least superficially, appears to be inconsistent language from prior decisions addressing how and whether a public records plaintiff can recover attorney fees following voluntary release during litigation.”35 Applying the statutory text would ensure consistent and predictable application of the law, eliminating the subjectivity inherent in determining who “prevailed” in a suit.
¶98 When the United States Supreme Court rejected the catalyst theory in Buckhannon, it criticized the theory‘s subjectivity. 532 U.S. at 609-10. The dissent proposed four conditions precedent
- “A plaintiff first had to show that the defendant provided some of the benefit sought by the lawsuit.” Id. at 627 (Ginsburg, J., dissenting) (citations and quotations omitted).
- “[A] plaintiff had to demonstrate as well that the suit stated a genuine claim, i.e., one that was at least colorable, not frivolous, unreasonable, or groundless.” Id. (citations and quotations omitted).
- “Plaintiff . . . had to establish that her suit was a substantial or significant cause of defendant‘s action providing relief.” Id. at 628 (citations and quotations omitted).
- “[Sometimes] plaintiff had to satisfy the trial court that the suit achieved results by threat of victory, not by dint of nuisance and threat of expenses.” Id. (citations and quotations omitted).
¶99 The majority opinion dismissed this version of the catalyst theory as “clearly not a formula for ready administrability” and likely to “spawn[] a second litigation of significant dimension[.]” Id. at 609-10 (majority opinion) (quoting Tex. State Tchrs. Ass‘n v. Garland Indep‘t Sch. Dist., 489 U.S. 782, 791 (1989)). Determining a plaintiff‘s entitlement to attorney fees would require litigating the merits of a moot public records case, but the United States Supreme Court has cautioned “[a] request for attorney‘s fees should not result in a second major litigation[.]” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). Disregarding Buckhannon, the majority/lead opinion‘s approach will produce unnecessary litigation.
¶100 The legislature forcefully declared the purpose of the public records laws:
In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.
III. CONCLUSION
¶101 This court properly reverses the metamorphosis in public records law created by the court of appeals’ atextual interpretation
¶102 I am authorized to state that Chief Justice ANNETTE KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join this concurrence.
¶103 JILL J. KAROFSKY, J. (dissenting). “Sunshine is a great disinfectant.” Milwaukee J. Sentinel v. DOA, 2009 WI 79, ¶103, 319 Wis. 2d 439, 768 N.W.2d 700 (Abrahamson, J., dissenting). That‘s the theory behind Wisconsin‘s public records laws. Shine light on the government‘s work product and citizens will engage and hold to account their representatives, achieving a purer democracy. A majority of this court frustrates that goal, seeding clouds as it eviscerates the mandatory fee shifting provisions integral to keeping the sun shining in our great state. By reinterpreting the law to reward government actors for strategically freezing out the public‘s access to records, today‘s decision will chill the public‘s right to an open government. And the majority/lead opinion does not stop there. It also condones the City‘s patently inapplicable “competitive or bargaining” excuse to deny Friends timely access to a proposed contract. The result is that Friends are denied the attorney fees to which it is entitled for bringing a claim to enforce its rights when Friends had no other recourse. Because the majority/lead opinion reimagines the fee shifting standard too narrowly, while construing the “competitive and bargaining reasons” exception too broadly, all at the expense of our public records laws, I respectfully dissent.
I. ANALYSIS
¶104 “In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government[.]”
¶105 A majority of this court tarnishes Wisconsin‘s proud history of transparent government by transforming a routine records request into a catalyst to decimate Wisconsin‘s fee shifting structure. This analysis begins by addressing the majority‘s grievous perversion of the public records laws’ critical fee shifting provisions.
A. Attorney Fees
¶106 Attorney fees are integral to open records litigation as they enable members of the public to compel the government to work transparently. This section begins with an overview of fee shifting provisions and their important role in our public records laws. Next is an explanation of how the long-standing “causation test” for awarding attorney fees is consistent with the plain meaning of
1. Fee shifting is integral to transparency.
¶107 In an action to enforce Wisconsin‘s public records laws, a requester is entitled to his or her attorney fees when “the requester prevails in whole or in substantial part.”
¶108 Legal fees can create significant hurdles for two common public record requesters: concerned citizens (like Friends) and local news media (appearing as amici in this case). Often, these two groups simply cannot afford the required legal costs of a mandamus action.4 And without mandamus actions, government violations of public records laws would go largely unchecked, undermining these laws’ legislatively declared purpose to promote democracy through transparency. See
2. The “causation” test is efficient and textually supported.
¶109 Having established the critical importance and function of fee shifting, next is a discussion about when courts should implement this remedy. The court of appeals has long relied upon the causation test to determine whether the government should pay for a requester‘s attorney fees. Under the causation test, a reviewing court looks for a “causal nexus” between the filing of a mandamus action and the document‘s release. Eau Claire Press Co. v. Gordon, 176 Wis. 2d 154, 160, 499 N.W.2d 918 (Ct. App. 1993) (“The test of cause in Wisconsin is whether the actor‘s action was a substantial factor in contributing to the result.“).
¶110 The causation test appropriately captures what it means to “prevail . . . in substantial part” in a public records case and is a workable, practical test. A majority of this court, however, rejects the causation test. In its place, they would now condition attorney fees on a “judicially sanctioned change in the parties’ legal relationship.” Both the majority/lead and concurring opinions insist that “prevailing party” is a “legal term of art” according to Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Services, 532 U.S. 598 (2001). See majority/lead op., ¶20; concurring op., ¶40. There is one glaring error with applying Buckhannon here. The phrase “prevailing party” is conspicuously absent from Wisconsin‘s public records law. Instead,
¶111 An interpretation that equates the two phrases is flawed because a “term of art” is “a word or phrase having a specific, precise meaning in a given specialty, apart from its general meaning in ordinary contexts.” See Term of Art Black‘s Law Dictionary (11th ed. 2019). The fact that a phrase is a term of art does not mean each word within that phrase, when used separately and independently, carries the same
¶112 In addition, the words the legislature chose are meaningfully distinct. The legislature used the phrase “the requester prevails” in
¶113 Because the phrase “the requester prevails” lacks a specialized or technical meaning, the common, ordinary, and accepted meaning of those words controls. See, e.g., Stroede v. Soc‘y Ins., 2021 WI 43, ¶11, 397 Wis. 2d 17, 959 N.W.2d 305. “Prevail” commonly means “to succeed.” Prevail, Oxford English Dictionary. Even under a legal-specific definition, “prevail” means “to obtain the relief sought in an action.” Prevail, Black‘s Law Dictionary 1438 (11th ed. 2019). Under the legal definition, a requester “prevails” if the requester files a mandamus action seeking a record‘s release and then receives that record because it obtained the relief sought.5 The causation test cabins this reading slightly by requiring that the filing of the action be a cause of the record‘s release. This limitation keeps record requesters from filing frivolous mandamus actions before obtaining records that were never in doubt of being released simply to extract fees.
¶114 Frivolous actions are one way to obstruct public records cases. Delayed disclosures represent a second way to game the system. Faust illustrates the value of addressing delayed disclosures with fee shifting as a remedy. State ex rel. Vaughan v. Faust, 143 Wis. 2d 868, 422 N.W.2d 898 (Ct. App. 1988). In Faust, an inmate requested records on January 26 and, having received no response, re-requested the records on February 19. Id. at 869. After again receiving no response, the inmate filed a mandamus action on March 13, and shortly thereafter the custodian of the records voluntarily supplied the inmate with the requested records along with an apology for the delay. Id. The court held that the mandamus action “was the precipitating cause” of the release of the records and awarded attorney fees and costs to the inmate. Id. at 872. The Faust court correctly recognized that “[i]f the government can force a party into litigation and then deprive that party of the right to recover expenses by later disclosure, it would nullify the statute‘s purpose.” Id. Although nothing in Faust indicated that the record custodian delayed the release of
¶115 In addition to encouraging timely compliance with public records laws, the causation test also promotes judicial efficiency. In circumstances where the government releases a record before the end of trial, the test eliminates the need to adjudicate the merits of a now-moot record request. It is well established that plaintiffs in public records actions may seek attorney fees and costs despite the underlying action being moot because of the voluntary release of records. See Racine Educ. Ass‘n v. Bd. of Educ. for Racine Unified Sch. Dist., 129 Wis. 2d 319, 322, 385 N.W.2d 510 (Ct. App. 1986); Cornucopia Inst. v. U.S. Dept. of Agric., 560 F.3d 673, 676-77 (7th Cir. 2009). The causation test sensibly premises an award of fees and costs on a finding that filing the mandamus action was reasonably necessary to receive the record and that there was a causal connection between the action and the record‘s release. This test allows a court to make a grounded determination on the necessary attorney fees question without fully litigating the underlying merits. The factual inquiry required under a causation test is thus necessarily limited and has been reliably applied by the lower courts for decades. Thus, we should continue to employ this textually faithful and practical test.
3. The “judicially sanctioned change” test is detrimental.
¶116 The new test, which looks for a “judicially sanctioned change” in the parties legal relationship, will result in one of two detrimental changes in how circuit courts handle public records disputes. Which detrimental change actually occurs will depend on how courts apply the test in cases where the records are voluntarily released before the underlying mandamus action reaches a final order. The new test would either: (1) completely forego the option of awarding attorney fees to a record requester when an authority voluntarily releases a record, no matter the length of delay or the stage of the action at the time of release; or (2) require that circuit courts make a determination on the underlying merits of every public records case that comes before them. The former approach, which is sanctioned by the concurrence, nullifies our
public records laws and allows governmental authorities to delay the release of records; the latter is judicially inefficient. The effects of a “judicially sanctioned change” test have already played out in the federal context and we should learn from those mistakes, not repeat them. Put simply, the new test casts storm clouds over our once clear public records laws.
¶117 The first possible effect from the “judicially sanctioned change” test would occur if the test is applied to remove a party‘s ability to seek attorney fees when the underlying case becomes moot through voluntary disclosure of documents. Under this application, the new regime creates a perverse incentive for the government to strategically delay the release of records. If public records cases can be mooted out by the government‘s voluntary release of a record, then the government could escape any sanction for unlawfully delaying the record‘s release so long as the government releases the record at any point before the court orders the release. Although the record ultimately gets released, the requester is left paying potentially hefty attorney fees and costs for a record he or she was already entitled to receive. See Milwaukee J. Sentinel, 341 Wis. 2d 607, ¶40 (“Increasing the costs of public
¶118 Alternatively, the second possible effect would occur if the new test is applied to allow an award of attorney fees even when the government has already voluntarily disclosed the requested records. This approach is consistent with precedent.6 In this situation, the new test creates judicial inefficiency because a circuit court would be required to fully adjudicate the underlying public records claim in any action alleging undue delay in a record‘s release. Specifically, under the new test a circuit court must determine if it officially sanctioned a change in the parties’ legal relationship before shifting attorney fees. This will unnecessarily burden lower courts with intensive factual disputes.
¶119 In detrimentally changing Wisconsin‘s public records law, a majority of this court ignores the teachings of the past. Although the court of appeals found the federal courts’ interpretation of the
¶120 The United States Supreme Court interpreted “prevailing party,” in a non-public records context, to mean the party that was awarded some relief by the court. Buckhannon, 532 U.S. at 603. That interpretation was read to alter FOIA‘s similar “prevailing party” fee shifting provision.
¶121 History repeats itself. This court commits the same error as the federal courts, but does so egregiously within the context of Wisconsin‘s public records laws and with full knowledge of the fallout.9 We
B. Importance of Timely Access to Documents
¶122 Deviation from absolute governmental transparency is permitted “when not detrimental to the public interest.” State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 681, 137 N.W.2d 470 (1965); see
¶123 Here exceptional circumstances do not exist. At issue is the City‘s denial of Friends’ access to a proposed contract. The proposed contract involved Big Top Baseball‘s plan to repurpose Frame Park, a public space, to host a private for-profit baseball team. In October 2017, Friends filed a public records request with the City seeking the proposed contract. Later that same month, the City declared it was withholding the proposed contract “for competitive and bargaining reasons” until the Common Council had an opportunity to take action on it. The next opportunity for the Common Council to take action on the proposed contract was at the December 19 Common Council meeting. Having been denied access to the record in time to meaningfully engage and hold to account their representatives, Friends filed a mandamus action the day before the meeting to preserve its right to a remedy. The December 19 Common Council meeting minutes indicate that the Council: (1) never entered into a closed session to discuss the proposed contract; and (2) did not vote to either approve or deny the contract terms. Unclear from either the minutes or the record is to what extent the Council discussed the proposed contract, if at all. The next day the City released the proposed contract to Friends saying no further competitive or bargaining concerns existed.
¶124 Friends was entitled to the release of the proposed contract not only in spite of its draft status, but because of it.10 The contract‘s non-final nature was significant. As long as the contract was not final, Friends had the opportunity to meaningfully participate in the Common Council‘s review of the document. Said differently, once the Common Council voted on the proposed contract, Friends’ participation would be moot. This situation exemplifies why Wisconsin‘s public records law demands that responses to record requests be made “as soon as practicable and without delay.”
¶125 Such detrimental denial occurs even when the delay is short-lived. Here, Friends requested the proposed contract ostensibly to evaluate how the possible terms of a privately run baseball park operating on public park grounds would affect its members as neighbors and taxpayers. For that review to be meaningful, however, Friends needed the document before the Common Council finalized the contract. Once the contract is final and binding, public input is rendered irrelevant. Because Friends was “entitled to the greatest possible information regarding the affairs of government,”
C. The City Withholding the Proposed Contract Lacked Justification
¶126 The City claims that “competitive or bargaining” reasons were sufficiently exceptional to tip the balance in favor of denying access to the proposed contract. This excuse fails. The “competitive or bargaining” excuse derives from Wisconsin‘s related open meetings law, which is incorporated into the public records laws. See
¶127 The City‘s “competitive or bargaining” rationale fails for two reasons in this case. First, no competitive or bargaining concerns remained at the time the City denied the records request. Second, the City Council never entered into a closed session during its December 19th meeting. Therefore, the City improperly balanced the public interest by concluding that the proposed contract‘s release would have adversely affected the public. See State ex rel. J. Co., 43 Wis. 2d at 306.
1. No competitive or bargaining reasons existed.
¶128 Let‘s turn first to the “competitive or bargaining” interests that were absent at the time the proposed contract was withheld. A competitive or bargaining concern relating to the proposed contract may have arisen in one of three ways, none of which apply here: (1) the City and another municipality could have been competing for the same baseball team; (2) the City could have been negotiating with more than one baseball organization to host a team at Frame Park; or (3) the manner of the City‘s negotiations with Big Top could require that the proposed contract terms be secreted from Big Top to strengthen the City‘s bargaining position.
¶130 The second possible concern would emerge if the City were negotiating with two or more baseball teams competing for the Frame Park location. Under this scenario, the City would arguably have an interest in concealing the details of any proposed contracts from the competing teams so that the City could negotiate the best terms from each team and ultimately choose between them. But here, the record makes clear that the City did not consider partnering with any baseball team besides Big Top after August of 2016——long before the record request and denial in October 2017.
¶131 The third possible concern would be that publicly revealing a proposed contract‘s unapproved terms would necessarily give Big Top access to those terms, weakening the City‘s negotiating position. This too fails because, as a conceded fact, Big Top already had access to the entire proposed contract during their negotiations and had provided drafting suggestions.
¶132 In sum, the competitive or bargaining benefit of withholding the proposed contract from the public did not exist. According to the City, the only relevant party not to have seen the proposed contract before the December 19 meeting was the Common Council, and the City cannot seek a bargaining advantage against its own Common Council.
¶133 Curiously, although the Common Council never substantially addressed the proposed contract or entered into a closed session at the December 19 meeting, the City released the proposed contract the day after the meeting indicating no further competitive or bargaining concerns existed. That all but concedes there never were competitive or bargaining concerns. If no competitive or bargaining concerns existed after a meeting where the Common Council never meaningfully addressed the proposed contract, then how could competitive or bargaining concerns be implicated before the meeting took place?
¶134 The City argues that there were, nevertheless, bargaining reasons for the Common Council to go into closed session to review the proposed contract. Specifically, the City argues that the Council‘s reactions to the proposed contract terms would weaken its ability to further negotiate terms with Big Top. But if the City wanted to hide the Common Council‘s reactions to proposed contract terms, the solution was to have the Common Council go into a closed session, not withhold disclosure of the proposed contract Big Top had already seen and red-lined. In short, no qualifying competitive or bargaining concerns regarding the proposed contract exist in the record.
2. A closed session was not “required.”
¶135 Even if competitive or bargaining concerns existed prior to the December 19 meeting, the City still improperly withheld the proposed contract because the Common Council never entered into a closed session. The City‘s only reason for denying disclosure applies “whenever competitive or bargaining reasons require a closed session.”
¶136 The facts indicate an alternative motive for withholding the proposed contract—the City sought to avoid public input before the Common Council had the opportunity to act on it. The City admitted as much in its letter explaining that it would delay disclosure until “after the Common Council has taken action on it.” That is not a legal basis to withhold a record from the public.
¶137 Because the City‘s alleged competitive or bargaining concerns were speculative at best, and disproven by the record at worst, the City improperly applied the balancing test. The public‘s interest in disclosure outweighs the City‘s nonexistent competitive or bargaining concerns; the disclosure was unlawfully delayed.
II. CONCLUSION
¶138 The City improperly withheld the proposed contract when it cited to nonexistent “competitive or bargaining” concerns, and the public interest would not have been adversely affected by the release of the proposed contract. Friends was denied its statutory right to access documents that would have informed its participation in government. As such, Friends should have prevailed in its action against the City and been awarded appropriate fees and costs. The unnecessarily narrow “judicially sanctioned change” test for the award of attorney fees is not supported by the statute‘s plain meaning and will undercut the public records laws’ entire purpose. We should remain with the causation test, which encourages citizens to bring meritorious claims for the release of records while discouraging gamesmanship on all sides. We should continue to disinfect with sunshine.
¶139 I am authorized to state that Justices ANN WALSH BRADLEY and REBECCA FRANK DALLET join this dissent.
Notes
State ex rel. Vaughan v. Faust, 143 Wis. 2d 868, 871-72, 422 N.W.2d 898 (Ct. App. 1988) (citing Merco Distrib. Corp. v. Com. Police Alarm Co., 84 Wis. 2d 455, 458-59, 267 N.W.2d 652 (1978) (analyzing the causation element of common law negligence)). In Faust, the court of appeals further explained that “but for” causation was not required. Id. at 872-73. And in WTMJ, Inc. v. Sullivan, the court of appeals noted, “The action may be one of several causes; it need not be the sole cause.” 204 Wis. 2d 452, 458-59, 555 N.W.2d 140 (Ct. App. 1996).The test of cause in Wisconsin is whether the actor‘s action was a substantial factor in contributing to the result. The phrase “substantial factor” denotes that the actor‘s conduct has such an effect in producing the result as to lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense.
We have mentioned the causation test before. See J. Times, 362 Wis. 2d 577, ¶57. In Journal Times, we noted that “if the failure to timely respond to a request was caused by an unavoidable delay accompanied by due diligence in the administrative processes, . . . the plaintiff has not substantially prevailed.” Id. However, we went on to conclude that the plaintiff was not entitled to attorney‘s fees because it “did not prevail in substantial part.” Id., ¶104. We have not previously been presented a question squarely addressing the causation test or its contours.
The same results-driven rationalizations permeate Justice Jill Karofsky‘s dissent, which does not even mention Kalal much less apply it. See Racine Educ. Ass‘n, 129 Wis. 2d 319.The exemptions to the requirement of a governmental body to meet in open session under [
Id. In this case, the court of appeals acknowledged it had to “reconcile what, at least superficially, appears to be inconsistent language from prior decisions addressing how and whether a public records plaintiff can recover attorney fees following voluntary release during litigation.” Friends of Frame Park, 394 Wis. 2d 387, ¶4. Had the court applied Cook, it would have been bound to apply the Racine Education Association I Line instead.If a court finds that the later court of appeals decision overruled or modified a prior court of appeals decision, the court must follow the earlier decision. This is because the court of appeals lacks the power to overturn its own precedent and exceeds its jurisdiction by doing so. In contrast, when the court of appeals is confronted with conflicting supreme court precedent, it must follow the supreme court‘s most recent pronouncement.