State v. Beaver Dam Area Development Corp.

Plaintiff-Appellant, Wisconsin, State v. Eric Development Corporation, Dam Beaver Area Frinak, Jr., Al Kitchen, Schwab, Jeff Les Becker, Doug Tom Landdeck, Mathison, Olson, John Greg Thompson, Baldwin, Steven Steil, Ron Nancy Staskal, Busler, Brian Gina Zieman, Defendants-Respondents, Hankes,

Jack Meyer, Myrtle Foulkes, Laine Duane Clifton, Philip Fritsche, Defendants.

Supreme Court 6, 2007. argument November No. 2006AP662. Oral July Decided 2008WI 90 (Also 295.) reported 752 N.W.2d the cause argued by For the was plaintiff-appellant Burkert-Brist, attorney general, assistant with Monica Hollen, attorney whom on the briefs was J.B. Van general. by

For the there was a brief defendants-respondents Cieslewicz, Kurth, Patti J. Michael J. Kasdorf Swietlik, S.C., Milwaukee, and oral argument Lewis & was Michael J. Cieslewicz. by

An curiae brief filed Edward R. amicus was Christa McNeil & Garvey, Westerberg, Garvey S.C., Madison, on behalf of the Citizens for McGillivray, Domann, Government and Jack the Wisconsin Open Association, the Wisconsin Broadcasters Newspaper Association, and the Wisconsin Freedom of Information Council. McLeod,

An amicus curiae brief was filed Eric M. Barboto, LLP, D. Paul and Michael Best & Friedrich Madison, on behalf of the Wisconsin Economic Devel- opment Association, the Wisconsin REALTORS®Asso- ciation, the National Association of Industrial and Properties, Chapter, Office the Wisconsin and the Wis- consin Manufacturers and Commerce. Preserving BRADLEY, 1. ANN WALSH J. an

open government promoting develop- economic represent defining principles ment two which we value people accomplish as a and strive to as a state. This case represents principles. the intersection of these two legislature

¶ 2. The has declared that we are preserving open transparent gov- dedicated to an "[I]t policy ernment. is declared to be the of this state is entitled to the fullest and most complete regarding govern- information the affairs of compatible ment as is with the conduct of Additionally, legislature business."1 has declared promoting develop- that we are committed to economic growth ment. We must "foster the diversification economy of the state"2 so that Wisconsin is "an place attractive to live and work . . . ."3 1 19.81(1X2005-06). § Wis. Stat. See also Wis. Stat. 19.31 laws). (declaring government purpose

All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted. § 560.01(l)(purposes Wis. Stat. of establishment of De Commerce).

partment of § 560.08(l)(providing Wis. Stat. for economic and commu nity development planning programs). and research presented question

¶ 3. We are with the Development Corpora- whether the Beaver Dam Area (BDADC) "quasi-governmental corporation" tion is a subject open meetings which public to Wisconsin's and addressing question, In records laws. we interpret provisions meetings open must of the state's public apply provisions and records statutes and those legislative so can be fulfilled and the directives may principles two best coexist. gov-

¶ 4. On one hand we cannot countenance a body circumventing legislative ernment directive open transparent government by paying for an and an entity perform governmental to function. On the cognizant hand, other have we to be of the realities of development times, economic and the need, at for flexibility confidentiality. and opinion

¶ 5. This should not be read as disfavor- ing engage development the desire to in economic being subject public without and many private operate records law. Indeed throughout entities subject being this state without to those successfully promote development laws and economic to the benefit of us all. governmental many

¶ Likewise, there are eco- development corporations years nomic that have for operated successfully being subject open while to the meetings position records laws. We take no as to what is the best structure for the enhancement of development particular economic in a area. opinion setting Rather, this should be read as entity

forth the circumstances when an so resembles governmental corporation, quasi- that it is treated as a governmental corporation purposes open meet- entity ings If an does not want records laws. meetings subject open to be change under the circumstances laws, it should then operates. it which particular has to be decided on 8. Each case totality presented. cir- examine the We must

facts factor which is outcome There is no one cumstances. Today of the factors to we set forth some determinative. "quasi- determining what constitutes examined be governmental corporation" public records laws. entity quasi- an is a determine that 9. We meaning corporation of Wis. within the 19.32(1) 19.82(1) totality §§ if, based on the

Stat. governmental corpora- circumstances, it resembles a determination function, effect, status. Such a tion in requires Considering case-by-case analysis. the facts quasi- BDADC is a we conclude that of this case governmental meetings subject open corporation public records laws. reaching primary our

¶ 10. A consideration exclusively by that BDADC is funded conclusion is tax dollars. interest on those tax dollars or complaint Additionally, at the time the consider that we City of Beaver in the filed, its office was located was building ("City")municipal on the and it was listed Dam http://www.cityof City address of website, with a web City beaverdam.com/EconomicDept/index.cfm. The support its provided and all of BDADC clerical with postage. including paper, pencils, supplies, office agreement, all of the terms of an 11. Under City exist. It if it ceased to revert to the BDADC'sassets obligated open City inspection its books for and it management plan City. has to submit its annual to the mayor The and another official serve on its board City. of directors. BDADChas no clients other than the promote develop- Its exclusive function is to economic City, prior ment in and around the a function that to its performed by City. creation had been apply prospectively 12. We our determination present such that the defendants in the case are not subject past open to forfeitures for violations of the any laws4and we decline to void actions taken past meetings public. Accordingly, at not to the we reverse the circuit court and remand to the circuit court remaining request attorney to address the fees and judgment costs opin- and to enter consistent with this ion.

i—I ¶ 13. This case is before the court on certification appeals pursuant from the court of to Wis. Stat. (2005-06). plaintiff, 809.61 The Wisconsin, State of dismissing asserts that the circuit court erred in complaint.5 declaratory judg- State's The State seeks Development ment Corpo- that the Beaver Dam Area (BDADC) "quasi-governmental corporation" ration ais to Wisconsin's complaint laws. against also seeks forfeitures 4 Upon by State, a motion against the claims individual were defendants prejudice. dismissed without Be cause the dismissal prejudice, was without may the claims be reasserted. Therefore we reference the forfeiture claim in our prospective application. appeals The State an order of the circuit Dodge court for

County, Judge Wright Richard O. presiding. for violations defendants and individual BDADC open requests meetings action that we void laws, attorney past fees and award BDADC taken at requests specific for no The case involves and costs. records. background not in of this case are

¶ facts The 14. these facts dispute. forth most of court set The circuit Findings of Law and Order Fact, Conclusions its necessary. Judgment. facts as reference additional We organized corporation nonprofit ¶ BDADCis a 15. January It was not 1997. law in under Wisconsin by any ordinance, and statute, constitution, created incorporate any through City its officers did not bylaws that its exclusive of BDADC state BDADC.The development engage purpose in economic tois corporate limits and retention within business corporate part limits of of the could become lands that City. private individu- BDADCare The officers of by of directors. BDADC board als who are elected City's bylaws, president of the BDADC Under non-voting of the member is a of commerce chamber City chairper- mayor of the The of directors. board Community Development City Committee son positions of their virtue the BDADCboard serve on private capacity City as not in their officials and as direc- the board of The other ten members citizens. private citizens. tors are ends, the BDADC term at a director's 17. When City replacement. does directors elects

board of mayor except process, insofar as direct this not Development Community Committee chair of the directors. the board of members of ex officio serve as litigation commenced, Up time this to the employee, only paid the executive had one BDADChas president, appointed by vice iswho the BDADCboard of Campbell position directors. Trent in served this from April January incorpo- 1997 to 2005. Prior to BDADC's City development ration, the had an economic office, Campbell job which directed. He left his as director of development the economic office and became executive president vice of BDADC. May

¶ 2005, 19. Until BDADC's offices were City's municipal building, though it conducted no City meetings in facilities. From the time BDADC's inception litigation, City until the start of this City's included BDADC on the website at the web http://www.cityofbeaverdam.com/Economic address of Dept/index.cfm. coopera- BDADC entered into agreements April January tion City agreed 1997 and 2004. The provide

that it will BDADC with office space, support, copy clerical and fax use, machine telephone postage. agreements provided use, and City representatives may examine BDADC's ac- counting City may finances, records and and that the develop- make funds available to BDADCfor economic ment. cooperation agreement, 21. Under the first

City agreed pay BDADCan annual contribution and large percentage proceeds to allocate a from its cooperation room tax to BDADC. Under the second agreement, City agreed pay percent BDADC90 City's proceeds room tax and no annual contribu- period tion. BDADC's income for the relevant time entirely money consisted of the room tax or interest on money. the room tax In the first half of example, the room tax contribution Accountedfor about percent of BDADC's income. The rest of its income was from interest. agreement provides that BDADC The 2004 City. management plan the to annual its

must submit may negotiate plan BDADC that allows The 2005 dealing on and work for businesses financial incentives approval government issues infrastructure and with attracting to the area. business related incorporation, of ¶ BDADC's articles 23. Under any liquidation, remain- upon dissolution BDADC's City ing the and used shall be distributed assets development BDADC retention. and business economic City contracts, and recommenda- the cannot bind upon by by the and acted BDADCare considered tions meetings open requirements City and of state the under City BDADC's sole has been records law. The case, and BDADC to the the time relevant client for relationships ongoing with business have other does not clients. other negotiated on

¶ 2005, BDADC In 2004 and 24. by developments regarding potential City's behalf variety into a memoran- BDADCentered of businesses. corporation understanding the Wal-mart with dum developing in area. regarding center a distribution topics and fire utilities discussion included provided that protection, the memorandum and mayor improvements. While make site would nego- agreement, signatory BDADCwas of the tiator. complaint filed a In late the State 25. quasi- judgment

seeking declaratory BDADC is a that corporation to the State's and alleg- meetings laws, open laws ing various occasions on BDADC convened alleged meetings open It further laws. violation individuals. several laws violations ¶ 26. The circuit court determined that quasi-governmental corporation BDADC is not judgment dismissing entered of BDADC, favor complaint. appealed State's The State and the court of appeals requested certification.

HH 1—I impression. This is a case of first The central quasi- issue in this case is whether BDADC is a governmental corporation meaning within the Wisconsin's records statutes. Determining quasi- BDADC whether is a governmental corporation requires interpret that we provisions open meetings public state's apply interpretation records puted statutes our to undis Statutory interpretation presents ques facts. independently tions of that law we review of the deter by minations rendered the circuit court. State ex rel. Buswell District, v. Tomah Area School 71,WI ¶ 10, 301 Wis. 2d 732 N.W.2d804.

{h— I—I determining quasi- In whether BDADCis a governmental corporation, we first examine the lan- guage of the statutes. Wisconsin's laws apply governmental bodies,6 defined as follows:

(1) body" "Governmental means agency, a state or local board, commission, committee, council, department or body corporate politic by created constitu- tion, statute, ordinance, a order; or rule § Wis. Stat. 19.83. for the corporation except Bra- quasi-governmental or corporation; a dley sports and entertainment center 229; ch. subch. II of a local district under exposition 46.2895; nonprofit family s. cor- care district under Olympic training ice center operating the poration (3); formally or subunit of under 42.11 constituted s. any foregoing.... of the 19.82(1) added). (emphasis §

Wis. Stat. apply records laws to au- 30. The state 19.32(1) "authority" Stat. defines thorities.7 Wisconsin corporations: quasi-governmental to include As 19.33 to 19.39: used ss.

(1) following any having "Authority" means office, or local elected custody of a record: a state commission, committee, council, board, official, agency, body corporate politic created department order; constitution, law, ordinance, govern- rule or by corporation except for quasi-governmental mental or corpora- and entertainment Bradley sports center tion .... added.)

(Emphasis "Quasi-governmental corporation" is defined interpreting nor the case law in neither the statutes strictly focusing However, on the words chosen statutes. "quasi-governmental legislature, it is clear governmen something corporation" other than a means corpo Interpreting quasi-governmental corporation. tal only governmental ren entities would ration include contrary principle superfluous, basic to the der the term rendering interpret so as to avoid statutes that we Enterprises, language superfluous. Inc., Harenda v. State 25; 2d N.W.2d 54, 604, Wis. 746 16, 2008 WI 307 7 §§ Wis. Stat. 19.33-19.39.

97 Comm'n, v. 97, 49, Hutson State Pers. 2003 WI 263 612, 2dWis. 665 N.W.2d212. Examining understanding

¶ 32. the vernacular of "quasi" analysis: "Having aids our a likeness to some- thing; resembling." Heritage Dictionary American of 1992). (3rd English Language, Employing ed. such understanding quasi-governmental corporation here, a entity refer an would that has likeness or governmental corporation, resembles a but which is not governmental corporation. history open meetings ¶ 33. The provides guidance. records statutes further The term "quasi-governmental corporation" was introduced into open meetings 1976, Wisconsin's law in when Wis. Stat. (1973-74) § repealed replaced 66.77 was §§ provided 19.81-19.98.8Section 66.77 that meet- ings applied "governmental body" laws to a and included "municipal quasi-municipal corporation[s]" or within governmental body. definition Wis. Stat. 66.77(2)(c)(1973-74). replaced, When statute was legislature "municipal quasi-municipal the corporation" discarded or "governmental quasi-

in favor of governmental corporation." Chapter 476, Law Wis- consin 1975. By changing language, legislature

¶ 34. expanded import reach The law. expansion by leading of this is described treatise on municipal explains quasi-municipal corpora- law. It corporations municipal are tions corporation those that resemble a respect public: in some are which provisions here, at issue Stat. Wis. 19.31-19.39, 1, §§ of January were added as Chapter Laws of 1981. corporation denotes a

["Quasi-municipal corporation"] merely a by legislature that or authorized created of of a public agency endowed with such the attributes necessary in may performance municipality as be words, quasi-municipal objective. limited In other its public agency created or authorized corporation is a legislature to .... aid the state nature, in "Quasi-municipal" corporations are not, municipal corporations. strictly speaking, hut (3rd Corporations § Eugene Municipal 2.13 McQuillen, 1990). Supp. ed. & Rev. 1987 explains treatise that contrast, 35. In entity corporation" "quasi-public "isnot refers to an that 'quasi' governmental.... per But indicates se corporation private has some resemblance to that the public corporation function, effect or status." Id. corporation quasi-governmental is one that Likewise, a governmen- governmental, per se but resembles is not corporation function, effect, or status. tal prior creation Thus, applied open §§ 19.82-19.98, law Wisconsin's strictly public. speaking, only were, to entities that by changing language meet- However, ings expanded apply legislature the law statutes, the per public. that are not se to entities court of this court nor the noted, As neither corpora- interpreted "quasi-governmental appeals has 19.82(1) 19.32(1). meaning §§ tion" within the attorney general several has written However, the state attorney general Opinions opinions on the issue.9 (1984)(concluding a histori Att'y Op. Gen. 53 See corporation organization quasi-governmental not a cal sites was any possess governmental attributes it did not because binding precedent, they may persua are not as but be meaning of Wachsmuth, sive as to the v. statutes. State (1976). legis 2d 318, 323, 73 Wis. 243 N.W.2d410 The expressly charged attorney general lature has the state interpreting with the provided "[a]ny may person request

statutes, and attorney general applicability" from advice the as to the §§ the of laws. Wis. Stat. 19.98 and 19.39. Thus the interpretation by attorney general advanced of is particular importance here. analysis

¶ 38. The most extensive of the issue opinion regarding found in 1991 whether the Milwau- Development Corporation ("Development kee Economic Corporation") Metropolitan and the Milwaukee Enter- Corporation prise ("Enterprise Corporation") were quasi-governmental corporations meaning within the 19.82(1) Att'y Op. of statutes. 80 (1991). Development Corporation 129 Gen. articles incorporation purpose of stated that its was to "further development" promote job the economic and "to cre- Development ation" in the Milwaukee area. Under the Corporation's bylaws, four of its nine directors were by specified city filled officials and four its six officers "may by city." be selected Corporation Enterprise provided

¶ 39. The eco- development money nomic loans with received from the city via federal small business loans. Its articles of therefore did governmental not resemble a organization); 66 Op. Att'y Gen. 113 (1977)(advising that a volunteer fire depart- ment quasi-governmental was not a corporation because it was not directly created body); Op. Att'y Gen. (1985)(determining that "friends" groups supporting public television and radio stations quasi-governmental were not cor- porations they directly because were not by government created entities). incorporation provided directors, none for fourteen city personnel. officials or Two were reserved which city however, council directors, were members of city employee. and one was a Development Corporation and the 40. Both the Corporation Department Enterprise listed the principal Development all address, their located as buildings, city-owned from and received their offices supplies. city space, equipment, and As with office Enterprise Corporation, Development city Corporation's bylaws select four allow that could city. pursuant it to a contract between and the officers analyzing entities were In whether two attorney general corporations, quasi-governmental the corporation opined quasi-governmental must re- that a corporation. support found a It semble explaining above, that a in its view the treatise cited " quasi-governmental] corporation’ [or 'quasi-public is [and] public governmental.... per has some not se corporation public function, in effect or to a resemblance Att'y (quoting Op. McQuillian, Gen. at 135 status." (brackets 1990) (3rd Supp. & 2.13 ed. Rev. 1987 129)). explained attorney general Op. Att'y that Gen. closelyenough determining entity resembles an whether quasi- corporation public to be considered a governmental requires analysis case-by-case made in Op. Att'y totality light Gen. at the of circumstances. 80 of 136. attorney gen- analysis, Applying an the such 42. corporations served the facts that both

eral considered development, purpose promoting public of economic the public funding sources, used of their from received most department principal development city's their as the buildings, city-owned places business, housed in were equipment supplies. addition, city In it and and used corporations subject by reasoned that the were to control city Development Corporation's insofar as four of the by city being nine officials, directors served virtue of and city corporations. selected four officers both of the light attorney general facts, In of these corporations quasi- determined that were governmental corporations they because resembled a governmental corporation. they Thus, it concluded that subject open meetings were state laws. upon statutory language, prin-

¶ 44. Based ciples statutory history construction, open meetings Wisconsin's laws, interpretations Attorney General, we deter- quasi-governmental corporations mine that are not lim- corporations government. ited to created acts of the quasi-governmental corporation corpora- Rather, a ais governmental corporation. tion that resembles a merely superficial However, resemblance to governmental corporations single respect in a is insuffi- subject entity cient for an to be Rather, records laws. an determination that entity governmental corporation resembles such it to state records laws requires totality an examination of the of facts about the entity. determining any particular entity Thus, whether governmental corporation resembles a must on be done case-by-case a basis.10

10 approach This also comports approach with the in taken See jurisdictions. Feiser, several other Protecting the Craig D. Right Public's to Know: The Debate Over Privatization and Access Law, to Government Under State 27 Fla. St. Information 825, L. Rev. 837-44 (2000)(collecting jurisdictions cases from

102 IV parties essentially agree Although that ¶ 46. the proper totality analyzing the of circumstances is a ap- they disagree application approach, on the present proach that BDADC contends to the case.11 totality approach the set the circumstances under Att'y Op. a it does not resemble in 80 Gen. 129 forth corporation. that, like the It concedes Corporation Development Milwaukee Economic Enterprise Corporation, Metropolitan Milwaukee the funding majority of its from BDADC the vast receives fund- However, it maintains that sources. way ing only BDADC is similar to is the which Att'y corporations in 80 Gen. Development Cor-

¶ that, It although City that the BDADC had offices in the municipal building, although City obli- was gated provide space cooperation to office under the agreement, meetings municipal its were not held at facilities. Finally, argues

¶ 48. BDADC that unlike the De- velopment Corporation Enterprise Corporation, its relationship City cooperative, with was and not by City. example, cooperation controlled For both agreements City between the and BDADC state that governmental body. BDADC is not Further, BDADC cannot bind the or enter into a contract behalf on City. of the question

¶ 49. The before us, however, is not corporations Att'y whether BDADCresembles the in 80 Rather, Gen. 129. it is whether BDADC resembles a governmental corporation totality based on the answering question, In circumstances. that we draw on attorney general several sources addition opinion discussed above. Although

¶ 50. determination whether an entity open depends respective statutory language laws on the interpretations by state, each rendered courts jurisdictions initially other are instructive. We examine highest the determinations rendered state court jurisdictions, Maryland, in three York, New Florida.12 complains The dissent about our use cases from other interpreting statutory

states different language. It appears using believe we are these cases to meaning determine the of "quasi-governmental corporation," and calls our discussion of "leap logic" other cases a Dissent, and "results-oriented." misinterprets dissent our approach. deter We have meaning mined the of quasi-governmental corporation based recently Maryland Appeals of ¶ The Court of 51. public open meetings state and addressed whether corpo- development applied economic laws to an records Corp. Realty City Baltimore Dev. v. Carmel ration of (Md. 2006). development Assocs., A.2d The corporation recommend for held and voted to by mayor primary developer approval for a a final the alleging city project. large filed that the suit, The realtors subject corporation public body development to awas instrumentality the of laws and an of public to Id. at 415. Baltimore laws. considering public bodies, nature In the of 52. development corporation's func- the the court divided purely categories: public functions, into three tions private public private purely functions, and and mixed public corporation's purely the functions. It considered purposes strategies; working city development of toward strong and urban to achieve business climate activities encouraging overseeing, implementing, renewal; private and attracting projects; public development new and city carrying to the businesses; and out contracts with planning. noted Further, at 424. the court coordinate Id. development corporation purely was the mayor power appoint, nomi- the had the insofar as per- corporation, 80 nate, and remove members by city, budget provided its the cent of its was city corporation property the if the would revert to Id. to exist. ceased statute, history, interpreta- its and the language

upon the particular attorney general. rendered Whether tions analy- corporation an requires entity resembles cases governmental corporations. use the We sis of the traits are examine characteristics jurisdictions other what from entity govern- determining whether an resembles relevant meaning "quasi- discern the corporation, not mental governmental corporation." corporation's court saw other private

functions as mixed functions. These coordinating development pub- included efforts between private providing sectors, lic and financial assistance and stronger enhancing advice to create a climate, business city's image, receiving funds from private city. Significantly, sources than other Id. development corporation court determined that the had purely private. no functions that were Id. assessing totality In of the circum- develop-

stances, the court determined that because the corporation purely private ment open meetings functions, had no required corporation's

law that delib- proceedings mayor erations be as the Similarly, as of the and city corporation council.Id. at 425. because the purely private was established no function, with agent city court determined it that was "an of the tool" subject public and to state records law.Id. 427. at approach Realty

¶ 55. The in taken Carmel approach similar to the taken the New York Court of Appeals determining Enterprise whether the Buffalo Development Corporation required comply was with public state records laws. News v. Enter. Buffalo Buffalo (N.Y.1994). Corp., corporation's Dev. 644 N.E.2d 277 purposes reducing unemployment, maintaining included creating job opportunities, encouraging develop- government lessening ment, burdens, which the "undeniably governmental." court determined were Id. at 278-79. funding Enterprise 56. The for Buffalo derived

entirely public city from sources. Id. at 278. Two officials permanent Enterprise, served as directors of Buffalo city at the time of the action another officialserved as an appointed its member of board. Other members were not city Further, officials. it described itself in financial "agent" city, brochures as an statements required budget. Id. at its annual and it was disclose factors, Based on these the court concluded 279. Enterprise subject was to the Buffalo laws. Schwab, In v. News and Sun-Sentinel Co. (Fla.

Twitty, Group, Arch. 596 So. 2d 1029 & Hanser 1992), Supreme that the the Florida Court determined an firm that contracted with records of architectural provide on a board to services construction school project In to state records law. were not variety making determination, examined a its the court Among of factors. the factors examined were the level public funding, entity performed govern- whether for are an function, mental integral part whether services contracted decision-making pro- public agency's of a public agency's of a control over cess, and extent entity. at Id. the firm did not determined that 58. The court part public body's process. decision

function as provided by firm not an Rather, the "were services decision-making integral part the school board's process. delegation participation of or . . . There was no decision-making any aspect school board's process." determined Further, Id. at 1032. the court funding firm's that it was not that the indicated paid by public public records laws. The firm was to money put to it receive the in order funds, but did not money public Instead, to use. "the firm's motiva- the clearly rendering professional . .. services was tion provide public compensation, ser- receive not to Id. at 1032-33. vice." appeals Although

¶ this and the court of 59. court corporation" interpreted "quasi-governmental not have public meaning of the within 107 recently laws, we examined whether Uni ("Au versity Hospital Authority of Wisconsin & Clinics thority") "political corporation" was a under Wis. Stat. 893.80(l)(a) (lm). §§ Rouse v. Theda Clark Medical Center, Inc., ¶87, 358, 2007 302 2d WI Wis. 735 "[gjiven power N.W.2d30. We determined that Authority, political corporation, structure" it ais "synonymous 'public Id., ¶ 31, which is with the term corporation.'" (citing Dictionary Id., Black's Law (7th 1999)). ed. reaching

¶ 60. In that conclusion, we considered a variety including factors, the creation of the Author- ity by legislature and the fact that its directors were public appointed officials or We officials. noted Authority engage that the had duties to in collective bargaining agreements and to enter into and leases with the state. Id. paid particular

¶ 61. The court attention to the Authority's reporting requirements. financial and We explained agreements failure extend or renew leases would result in the transfer of facilities to the regents. board Further, we noted that the "state is [Authority's] ensured access financial state- Authority update ments" and that the "must the state on a consistent basis." Id. The court made the determi- Authority political corporation nation that is a despite Authority's dissimilarities with enti- including Authority ties, the fact that does "not general purpose receive revenue from Id., the state." directly ¶ 32. While Rouse does not address an whether entity quasi-governmental corporation, is a is it instruc- tive here insofar it as sets forth factors relevant classifying entity an with characteristics of both private corporations. Id., of From cases can discern a number these we an determining in whether important factors are public records subject is to entity is In determining First these finances. among laws. of subject are to freedom information whether entities bodies "key a factor such within bringing laws nearly a law information] of state of coverage [freedom is state Burt A. Braverman always funding entity." R. A Review State Wesley Open Practical Heppler, (1981). Laws, 720, Wash. L. Rev. 731 Records 49 Geo. many is is Additional jurisdictions.13 This view echoed function, it a public factors include whether serves 13 has determined that Supreme The Nebraska Court render power agricultural to receive tax revenue suffices to an statute, a by voluntary pursuant a society, formed association to v. body" subject to state law. Nixon "public open 119, 119-20 County Agricultural Society, 348 N.W.2d Madison 1984). (Neb. funding important, is Other courts have determined that an subject though dispositive, entity not factor an whether In meetings and laws. State ex rel. Toledo open public records Foundation, Toledo 602 N.E.2d University Blade Co. v. (Ohio 1992), private Supreme Court determined that Ohio gifts solicited on behalf nonprofit foundation that received and public subject open meetings and public university was based decision on the fact that records laws. The court its revenues, space free office from the received tax had foundation funds, university, wages by university employees' paid had its Id. See v. function. at 1162-63. also Weston performed (S.C. Found., & Dev. 401 S.E.2d 161 Carolina Research 1991)(foundation university which operated benefit law); expends funds receives Ethics Transp. Bd. v. State Bay Auth. Ret. Massachusetts (Mass. 1993); County Comm'n, 1052, 1056 Adams 608 N.E.2d Ass'n, N.W.2d 834-38 v. Greater Dakota Record North 1995). (N.D. it to the be a public government whether to appears entity whether the is to entity, subject government control, of degree and the access that government bodies have the records. entity's to above, 63. As conclude an is a entity quasi- we if, of governmental corporation totality based on the the it circumstances, resembles a governmental corpora- function, effect, light tion in or status. In forego- the authorities, forth, on ing based the factors set we conclude that BDADC a governmental does resemble corporation.14 begin, emphasize To we the fact that

BDADC is almost entirely funded. While taxpayer BDADC minimizes the importance its source of

14The set are factors forth here not exclusive in determin ing subject open meetings public whether entities are to Rather, they the laws. are factors relevant Schwab, present Twitty, case. In News and Sun-Sentinel Co. v. (Fla. Group, 1992), example, & HanserArch. 596 1029 So.2d Supreme the Florida Court established a nine-factor test for determining private corporation whether a acted on the behalf public agency. Among of a nine those factors were the level of public funding, private whether com funds were mingled, agency whether had a substantial financial entity, private entity interest in the for whose benefit the was acting, and private entity's whether were services an part integral agency's decision-making of the process. Id. Appeals adopted at 1031. The Colorado Court the same Corp. nine-factor test in Denver v. Stapleton Corp., Post Dev. (Colo. 2000). App. P.3d Ct. leading A on treatise laws sets forth 14 factors determining private used courts whether are entities subject to Ann Taylor Schwing, Open Meetings such laws. Laws (2d 2000), Among ed. 4.100. included factors are whether entity taxes, exempt from it for-profit whether is a entity, audits, nonprofit government whether it is whether it is entitled assert immunities. Id. it is a factor.15 Under both the 1997 funding, significant sub- cooperative agreements City gave and 2004 The first funding agreement stantial to BDADC. stated would include an annual contribution to City that BDADC its It further budget. provided City would allocate a of its room tax to BDADC. large portion agreement The 2004 stated that would allocate tax, to BDADC 90 its percent proceeds of room no annual contribution written into its budget. with BDADC's income consists entirely the room tax money and interest on the room tax In the first money. 2005, half of the the example, proceeds from room tax constituted 84 about of BDADC's income percent Further, and the rest was interest income. the City BDADC with office and cleri- provided space, supplies, cal support. similarly importance The dissent minimizes the by funding claiming persons upon

BDADC's that the whom the Dissent, actually pay room tax is levied do not the tax. ¶ ordinance, directly language Its view the n.3. contradicts imposed upon which states that the "tax is the retailers" Dam, furnishing lodging. City Municipal of Beaver Wisconsin 2-124(b). addition, In "tran Code sients, the dissent's claim that tax," id., residents, pay assump

not the room makes an lodging tion about who foots the bill for in Beaver Dam. The provided regarding dissent has no information whether such paid by bills are Beaver Dam businesses and residents for their elsewhere, guests, by by people who live someone else altogether. appears simply up It to have made facts. important, though, implication

More is the dissent's that the residents of Dam are not entitled to information Beaver government money spends upon about how their its based novel, money. unsupported, view source dissent's wrong. Regardless pays money, of who the tax it is for the Dam, know how use of the residents of Beaver and their claim to it is used is undiminished.

Ill governmental corporation, ¶ 65. Like a BDADC majority receives the vast of its funds from taxes borne support govern- and receives basic from respect, closely ment sources. In this BDADC more governmental corporation resembles a in status than corporation in There, Hospital we examined Rouse. we University determined that the of Wisconsin & Authority political corporation despite Clinics was a it receiving "general purpose no revenue from the state." 358, 302 Wis. 2d respect finances, 66. With BDADCis akin to development corporation Realty, in records laws Carmel and akin to development corporation considered in Buffalo corporations It

News. is also similar to the attorney general Op. Att'y examined Gen. 129. Moreover, unlike the architecture firm in News and Sun-Sentinel, money 596 So. 2d BDADC received tax provide public merely service, order to not compensation. gov- receive Thus, BDADC resembles a corporation ernmental insofar as it is a tax-funded organization which receives funds to achieve a purpose. degree funding 67. The to which BDADC's City only way

comes from the is not the in which its governmental corpo- finances are like the finances of a incorporation, ration. Under its articles of if BDADCis liquidated, any remaining dissolved or of its assets are City. City provides to be distributed effect, to the In assets for the use, BDADCto but retains an in interest those assets. parallels Maryland

¶ Ap- 68. This Court of peals' reasoning Realty, in Carmel which considered the development corporation's fact that a assets would city important revert to a in its determination that the corporation was to state parallels laws. at 910 A.2d 415. It also reasoning signifi- Rouse, our where we considered property cant the fact that would transfer to the University Regents of Wisconsin Board of in the event Authority agree- that the failed to extend or renew an ment or lease. 302 Wis. 2d 31. govern- In addition, BDADC resembles a corporation respect

mental with to the function it purpose serves, both in terms of its and its actions. bylaws purpose BDADC's engage state that its exclusive is to development in economic and business reten- corporate tion within the limits and lands that could part corporate City. become limits Prior to incorporation, City BDADC's had an economic de- velopment Moreover, office that served that function. respect Thus, BDADChas no other clients. with to the indistinguishable serves, function it BDADCis from the City preceded incorporation. office that BDADC's That stronger resemblance is all the insofar as the executive president early vice of BDADC from 1997 until previously City's had served as director of the economic development office. City

¶ 70. While BDADCcannot bind the or enter City, contracts on behalf of the it does resemble a governmental corporation negotiates insofar it as on City. negotiations In behalf of the its with Wal-Mart regarding development building site, aof BDADC protection. negotiated discussed utilities and fire It also understanding provided a memorandum of that City improvements would make to the site. These perform are that the functions would BDADC's absence. BDADC's similar functions are to those of corporation in News. Both BDADC and Buffalo Enterprises encourage development

Buffalo work to opportunity, and economic which New York Court of Appeals "undeniably governmental." determined to be at N.E.2d 278-79. performs pre-

¶ 72. The functions BDADC are cisely Realty those that led the Carmel court to deter- development corporation public body mine that a was a city and instrument of a

public records laws. 910 A.2d at 410. Also like the corporation Realty, appear in Carmel BDADC does not any purely private to have function. The fact that final approval City for contracts must come from the does public not diminish BDADC's As function. the Carmel Realty entity may clear, court made an serve merely function even if it subject makes recommendations approval by city to final official. 910 A.2d at ¶ 73. BDADC's status also resembles that of a governmental corporation perspective from the public. litigation, Until after the start of this BDADC's City's municipal building, offices were located City and the included BDADC on its website. Two of City BDADC's directors were officials. The effect of such close ties to make it difficult for the begins. discern where the ends and BDADC respect ¶ In this BDADC is similar to the corporation News, which stated in its Buffalo agent brochures and financial statements that it anwas city. of a corporations 644 N.E.2d at 279. It is also similar to the Op. Att'y

examined in 80 Gen. which municipal buildings were housed in and listed the Department City Development principal as their Thus, addresses. BDADC resembles a corporation public appearance. in its governmental

¶ 75. BDADCalso a resembles cor- poration City degree extent to the that the maintains a aspect of control over BDADC's An actions. that composition control is the of BDADC's board direc- Although majority tors. of BDADC's directors are private City citizens, two are officials that serve as ex Rouse, officiomembers. This with contrasts where all of voting members of board of directors were public appointed by public either officials or officials. It Realty. also contrasts with Carmel only ¶ However, 76. in News three mem- Buffalo corporation's city bers of officials, board were 644 corporations N.E.2d at and one of the considered in Op. Att'y positions 129 Gen. reserved no its on board city having composed Further, officials. aboard of or appointed by public requirement officials is not a for an entity public to be records part totality Rather, laws. it is of a of circumstances Finally, City test. fact that some serve officials as ex degree officio members BDADC'sboard evinces some City control. degree City ¶ 77. The of access that the has to important determining BDADC'sinformation is also in quasi-governmental corporation. whether BDADC is a cooperative agreements City between City representatives may BDADC allow that examine accounting Additionally, BDADC’s records.

agreement provides that BDADC must its an- submit management plan City. nual to the Authority Rouse, 78. In the facts that the was required "update on a state consistent basis" and [Authority's] that the was state "ensured access to the important financial statements" were to our determina- political corporation. tion that it was a 2d 358, 302 Wis. Similarly, News, the fact that Buffalo Buffalo weighed budget Enterprises its annual had to disclose subject it was the determination in favor of Accordingly, at 279. N.E.2d laws. 644 provide access to with must BDADC insofar as corporation. governmental information, it resembles BDADC resembles Thus, (1) respects: important other corporation in several of funds is income, its sole source than interest (2) and has no function dollars, it serves a tax (3) presenta- appears private purely it its function, (4) City City, part that it is to the tion (5) degree BDADC,and of control over a maintains financial information to BDADC's has access ways management plan. to is sufficient one of these No corpo- quasi-governmental a BDADC is that conclude totality, considering in we deter- them However, ration. corpora- governmental BDADC resembles mine that quasi- Thus, it is a effect, function, or status. in tion governmental meaning corporation within 19.32(1).16 19.82(1) §§

V quasi- Having BDADCis a ¶ that determined 80. corporation governmental that all of its does not mean 16 bright line complains of the lack of at once The dissent opinion. forth in this stringency of the test set rule and unadopted legislative Dissent, 198-99, cites to an 215. It ¶¶ as evi development corporation economic proposal to define Id., Both of the bright-line rule. 195. for a dence of the need stringent by dissent are more cited bright-line proposals here, would include BDADC. and both test set forth than the assertion, either Thus, contrary the dissent's Id., 196-97. ¶¶ quasi- BDADC is a the result would dictate proposal id., Moreover, the 197-98. corporation. See bright-line evidence that proposals is apparent need for such in the words of the statute. not inherent rule is

116 meetings automatically open are all or that of its immediately public. records are disclosed to the There ways economically important are in several which in- protected formation be from could disclosure for the purposes records laws.17 19.85(l)(e) § example, For allows closed regarding purchases public property, sessions invest- ing public doing funds, or other business "when- competitive bargaining require ever reasons a closed 19.85(l)(i) Similarly, § session."18 allows closed sessions adjustment pro- for gram pursuant related matters to the economic § discussing to Wis. Stat. 560.1519where adversely such matters session "could affect the employees employees." business, its or former Wis. Stat. 19.85(l)(i). § Additionally, argument at oral BDADC much conceded that of its is done work its executive president, meetings vice and that informal between companies president and the vice would executive not 19.82(2).20 § constitute under discovery See Sands v. Whitnall School District for rules applicable meetings 19, pursuant chapter closed session 1, Wisconsin Statutes. 2008 WI 312 Wis. 2d N.W.2d 19.85(l)(e) provides Wisconsin Stat. closed that a ses may sion be held: (e) Deliberating negotiating purchasing public properties, or the of funds, investing public conducting specified public the of or other

business, competitive bargaining require whenever or reasons closed session. 19 provides §560.15 Wisconsin Stat. for communities to considering ceasing assist operations laying businesses or off employees in state. 19.82(2) provides § part: Wisconsin Stat. in relevant "Meeting" convening governmental means the of members of a

body purpose authority, exercising responsibilities, for the power delegated body. or duties to or vested If or onehalf public also contain statutes 82. The records may provisions prevent of information disclosure which development. Recognizing important to economic open relation between 19.35(l)(a) § circum- that under some

laws, allows exemptions open requirements under session to stances denying public § for access to can serve as a basis 19.85 a record. governmental exemptions requirement of

The to the under are indica- meet in session s. 19.85 body may grounds for policy, be used as tive of but authority only record if the denying public to a access specific s. 19.33 makes a legal custodian under or is a need to restrict demonstration that there copy or request inspect at the time that the access the record is made. 19.35(l)(a); Cedarburg § Zellner Sch. see v.

Wis. Stat. 290, 731 Dist., 49, WI 300 Wis. 2d N.W.2d 240. important is Another consideration 19.36(5), "may

§ that authorities withhold which allows containing any portion record record or access to pursuant qualifying a trade as secret" information 134.90(l)(c). "Trade secrets" are defined as Wis. Stat. follows:

(c) information, including a for- "Trade secret" means device, method, mula, compilation, program, pattern, following apply: technique process or to which all economic independent derives information being generally value, from not potential, actual body present, are more of the members of a exercising meeting rebuttably presumed purpose to be delegated authority, power to or responsibilities, or duties body.... in the vested 118 to, being readily by proper and not ascertainable known by, persons other who can obtain economic value means or from its disclosure use.

2. The information is the of efforts maintain secrecy its that are reasonable under the circum- stances. I34.90(l)(c).21 § Stat.

Wis. In addition to the statutory express provi- law, sions disclosure under Wis- limiting courts recognized consin have other limitations to dis- closure, that the harm to the including requirement from disclosure should be balanced against benefit of disclosure to the One must public. be bal- anced in determining other whether against Owens, disclosure. State ex rel. Youmans v. 28 permit 672, 681, (1965); Wis. 2d 137 N.W.2d 470 see also Swank, Melanie R. The Wisconsin Public Records and Handbook, ed., § 2nd Meetings 4.9. Open v. 2002 WI Accordingly, Linzmeyer Forcey, 84, 306, 811, 254 Wis. 2d 646 N.W.2d once this court specifically The federal Freedom of Information Act exempts "trade secrets and commercial financial information person privileged obtained from a or confidential." 5 U.S.C. 552(b) (2007). (4) Several states follow the federal statute provide exemptions expressly for commercial and financial Costonis, information other than trade secrets. See Theresa M. Information, What Constitutes Commercial or Financial Exclu Secrets, Exempt sive Trade From Disclosure Under State Construction, Acts—General Rules Freedom of Information (2005). however, legislature, § 2 A.L.R. 6th The Wisconsin expressly exempted only has trade secrets. The determination of whether information other than trade secrets should be in order to further the exempt from records disclosures policy development question of economic is a best addressed legislature. report applied open records law to a that the determined regarding potential misconduct, exam this court teacher policy keeping public in the interest ined whether favoring presumption record confidential overcame determining, applied ¶ In it Id., 11. so disclosure. public policies balancing "weighting] in not favor test against strong public policy that of release (citing ¶ Id., 12 be for review." records should Erickson, 178, 549 v. 202 Wis. 2d N.W.2d Woznicki (1996), Newspapers, Breier, 417, Inc. v. 89 Wis. 2d (1979)). The court determined 279 N.W.2d 179 investigation part in was favored because disclosure been closed and no further into the misconduct had releasing pending. proceedings could Thus, were ongoing proceedings. expected not be to interfere with ¶ Id., 39. Newspress, v. Likewise, in Wisconsin Inc. 86. Sheboygan Falls, 199 Wis. 2d

School Dist. of (1996), impor this court determined that an N.W.2d143 determining in to release a letter to tant factor whether employee regarding disciplinary action a school district disciplinary already had was the fact that action place. Thus, Id. at 788. the harm that could result taken (creating impression) premature a false was from release longer present. no Id. Similarly, involving in a case disclosure of relating development, to economic the bal-

information depending may tip on the in different directions ance timing request. premature Where disclosure important public policy records could undermine an development, objective economic in the context of may tip However, of nondisclosure. balance favor releasing expected to the records could not be when ongoing negotiations, interest interfere with may outweigh interest in non- disclosure disclosure. Although argues ability that its BDADC impaired

properly if it function will be is determined to corporation, quasi-governmental note that be a we corporations development appear other economic despite operating quasi-governmental as function well Op. Att'y organizations. above, in 80 As we discuss Gen. attorney general 129 the advised two economic devel- they opment corporations that be considered would 19.82(1) §§ quasi-governmental corporations under and 19.32(1). argument, At the State indicated that the oral corporations opinion considered that have continued purpose despite being subject open to to fulfill their meetings public addition, In and records laws. Housing Development Au- Wisconsin and Economic thority operates express requirement under the that its open public only excep- to the with limited records are tion. Wis. Stat. 234.265.22 Finally, emphasize ¶ all we not economic development quasi-governmental corpora- entities are meetings open public tions to the and quasi- laws. We have determined that BDADC is a gov- governmental corporation because it resembles corporation. ernmental organized However, BDADCcould be differ-

ently. income BDADCdoes not have to receive all its public funds, its assets from funds and interest on those consequences The overstates of our decision dissent "sky falling" open meetings It with its discourse. describes "minefield[s]," dissent, 141, and public records laws as id., above, doom, many economic 127. As noted forewarns operating successfully part as a development entities have .been shy remains intact above those government. of local Indeed throughout the state. communities City not to to the in case of do have revert dissolution City liquidation, it did not have to be housed building, municipal it did not have to be on included City open to its website. It does not have records to the City, management it does not to submit its have annual plan City City, to the it does not have to have officials serving board, as ex officio members of its and the only does not have to be BDADC's client. These are choices that BBADC has made.23 quasi-

¶ 91. The determination that BDADCis a governmental corporation subject open meetings public supported by policies records laws is further open meetings records laws. The "liberally" statutes are to be construed "complete purpose regarding achieve the information government compatible the affairs of as is with the business,"24 conduct of and the every records statutes are to be "construed in instance majority "the legiti dissent states that attacks the macy" engage development of the desire to in economic without being subject Dissent, records laws. position. question 127-28. The dissent misstates our ¶¶ We legitimacy doing quasi-governmental corporation of so via a exclusively public money funded with and interest thereon and governmental which corporation further resembles a in func tion, effect, or status as set forth in the text.

24 provides § part: Wis. Stat. 19.81 in relevant (1) recognition representative government In of the fact that a of type upon electorate, dependent the American is an informed it is policy public declared to be the of this state that the is entitled to complete regarding the fullest and most information the affairs of government compatible as is with conduct of business.... (4) subchapter liberally This shall be construed to achieve the purposes set forth in this section ....

122 access, consis- complete public of a presumption with business."25 of governmental conduct tent with the devel- noted, economic fostering have As we directive. We legislative an important is also opment and diversification the growth "foster must is "an attrac- so that Wisconsin the state"26 of economy However, for the ."27 and work... to live place tive convinced that above, are not forth we reasons set meet- open to state subject that BDADC is determining policy. undermines this records laws public and ings VI action the declaratory judgment In this BDADC is a seeks a declaration of Wisconsin State both is and corporation quasi-governmental laws, had public of the board the members against forfeitures requested provides: § 19.31 Wis. Stat. government representative is recognition the fact that In of electorate, declared to be the upon it is dependent an informed persons to the all are entitled public policy this state that of government regarding the affairs of greatest possible information represent employees who those officers and the officialacts of de- Further, persons information is providing with such them. government representative of a an essential function clared to be employees officers and integral part the routine duties of of and an end, provide To that responsibility is to such information. it whose every instance with be construed 19.32 to 19.37 shall ss. access, with the con- complete consistent presumption gener- access governmental business. The denial duct interest, only exceptional in an ally contrary to the may denied. access be case of De 560.01(l)(purposes establishment § Wis. Stat. Commerce). partment of com economic and 560.08(l)(providing for Stat. Wis. programs). planning and research munity development open meetings for each violation law. As noted specific request above, there is no records involved in the current action. The State also seeks an voiding past meetings order actions at taken which were not and an award of reasonable attorney fees and costs.

¶ 94. BDADC contends that if this court decides that it is ruling prospectively only.

laws, such should be made We agree.

¶ 95. As we above, discuss neither this court nor appeals previously interpreted the court of has meaning "quasi-governmental corporation" within 19.82(1) 19.32(1). meaning §§ Normally applies retrospectively. applying new rule However, new rule to reasonably circumstances in which actors rely contrary may unsettling. on views be This court occasionally apply will prospec therefore a new rule tively Hadley, to limit such an effect. Harmann v. (1986). 371, 377-78, Wis. 2d 382 N.W.2d673 ¶ 96. deciding We examine three factors in apply whether our retroactively determination is to or prospectively:

(1) whether the decision establishes a new principle of law, by either overruling past clear precedent on which litigants may relied, have deciding an issue of first impression whose resolution was clearly not foreshad- (2) owed; whether retroactive application would fur- ther or operation retard the rule; of the new (3) whether application retroactive produce could sub- inequitable stantial results. ¶ Co., WI 103, 220, 2d v. Gehl Wis. Wenke 682 N.W.2d405. light factors, these we conclude that 97. In entity quasi-governmental for an is a

the test whether open meetings public corporation to only. prospectively apply First, should this is case laws impression, and have established a new of first we clearly Second, that not foreshadowed. standard applying was retroactively here the set forth standard respect open rule to meet- not the with would ings. advance public go "[t]he Buswell, in cannot As we noted open meetings [that meetings violate back attend already meetings law] occurred." 301 when such have 178, ¶ 2d Wis. though, present important case, in 98. Most Applying approach the third factor. established

is retroactively may inequi- produce substantial this case Exposing mem- results. BDADC and individual table interpre- to forfeitures on the basis of a reasonable bers yet appellate where no court had tation of statute interpretation inequitable provided Addi- an here. any tionally, voiding issuing taken at an order actions unduly open past to be not would unsettling persons with to and businesses involved relying on actions.

VII entity that an is a sum, In we determine meaning corporation quasi-governmental within 19.32(1) 19.82(1) §§ if, on Stat. based Wis. totality circumstances, it resembles corporation a deter- function, effect, or status. Such analysis. Considering case-by-case requires mination the facts of this case BDADC we conclude that is a quasi-governmental corporation subject meet- ings records laws. determining entity

¶ 100. The test for whether an quasi-governmental corporation applies is a to both However, law and records law. our past applied is not violations, is, test to be prior opinion. violations the date the release of this today applying test, Because we announce a new that past inequitable unduly test to violations would be and unsettling. apply

¶ prospectively 101. We our determination present such that the defendants the case are not subject past open to forfeitures for violations of the meetings any laws and we to decline void actions taken past meetings open public. Accordingly, at not to we reverse the circuit court and remand to the circuit court request remaining attorney to address the for fees and judgment opin- and to costs enter consistent with this ion.

By the Court.—The order of circuit court is reversed and the cause is remanded.

¶ 102. Justice ANNETTE KINGSLAND ZIEGLER participate. did not (dissenting). PROSSER, 103. DAVID T. J.

majority Develop- concludes that the Beaver Dam Area (BDADC) Corporation "governmental body" ment is a 19.82(1) (2005-06),1 § within the definition of Wis. Stat. open whose are to Wisconsin's meet- ings §§ laws, Wis. Stat. to It 19.83 19.98. also concludes

1 All references to the Wisconsin Statutes are to the version 2005-06 unless otherwise indicated. "authority" an within the definition of

that BDADC is 19.32(1) comply must with state's Stat. Wis. §§ laws, 19.33 to 19.39. Wis. Stat. importance Recognizing sensitiv- majority ity development in state, the of economic attempts far-reaching ameliorate its decision affirming development and its devotion to economic declining re- award some of relief State majority op., quested. ¶¶ However, the 93-98. See majority provide guidance on realistic how fails non-profit development corporation can avoid economic conducting meet- in the fishbowl of business severing ings its records statutes without beneficiary cooperative relationship municipal its with development paying all its initiatives economic money. respectfully private multiple reasons, I For with dissent.

I. BACKGROUND complaint In 2004 the State filed a seeking complaint against BDADC declara- amended "quasi-governmental tory judgment that BDADC is a statutory "govern- corporation" of within the definitions "authority" body" thus, to and, mental As a records laws. Wisconsin's during period BDADC the time result, this case involves complaint leading filing up to the of State's complaint. circuit court found that amended The corporation" "quasi-governmental un- BDADC is not 19.32(1) 19.82(1) §§ or and denied der either Stat. Wis. declaratory judgment. background following are The facts derived findings supple- and are fact

from circuit court's record. mented facts private, non-profit corporation 107. BDADCis a organized January that was under Wis. Stat. ch. 181 on City (City) 31, 1997. The of Beaver Dam did not incor- porate pursuant BDADC,and BDADCwas not created any constitution, statute, or ordinance. The exclusive purpose bylaws, engage of BDADC,as stated its is "to development in economic and business retention within corporate part limits and lands which could become corporate of the limits of the of Beaver Dam and for purposes conjunction all lawful incident In thereto." with purpose, provide this stated BDADC does not services safety any related county health or or municipality, including City. (Board)

¶ 108. BDADC's Board of Directors has many consisted of as as 13 individuals,2 12 of whom voting powers. have These individuals, all residents of "knowledge Beaver Dam, are selected for their of eco- development nomic and business retention, cultural, civic, moral, and other needs of the Beaver Dam general representation area, and for of varied elements organizations of the area." The Board is therefore comprised of local industrialists, educational leaders, attorneys. bankers, business leaders, The Board generally meets once each month over the lunch hour at private places employment of Board members. mayor chairperson of Beaver Dam and community development Beaver Dam's committee both voting serve as ex officio members of the Board. The president executive vice of the Beaver Dam Area Cham- non-voting ber of Commerce serves as a member of Board.

2We note that the bylaws provide Board's directors, for 12 but the record reflects that there were 13 serving directors during some pendency Only this case. 12 BDADC voting rights. directors have nominated and elected 109. Board directors are They

solely existing by members of the Board. serve 3-year compensation. a director's term without When Except expires, replacement. a for the the Board elects may a be removed from directors, ex officio director majority by the of the an affirmative vote of office only persons City the who Board. The electors of the may are may A the ex officio directors. director remove two resignation resign filing her with also his or written secretary of the Board. bylaws provide for several 110. BDADC's also bylaws positions. officer The state: [BDADC], except for the Executive Vice The officers of President, among Board of shall elected from be President, Treasurer, Directors and shall consist of a Secretary, other as the and such Vice-Presidents elect. An Executive may choose to Board Directors appointed by majority vote of Vice President be shall of the of Directors and need not be member the Board Board of Directors. arrangement, Executive Vice President

Under this employee only compensated, of BDADC is the full-time corpora- day-to-day manages operations tion. incorporation, BDADChas had a its Since Campbell (Campbell),

single employee. paid Trent City, Development Director of the was former Economic approxi- from Vice President of BDADC Executive resignation, mately April 1, 1997, until his effective Campbell's January not control The did day-to-day President; he as Executive Vice activities any pleasure have and did not Board served at authority behalf. into contracts on BDADC's to enter authority was reserved with to contract BDADC from was available While clerical assistance Board. City, Campbell virtually typing, did all his own faxing, e-mailing. computer, and He had his own which City Campbell was not connected to a network. never City attorney legal regard- consulted for advice with ing independent business; BDADC the Board solicited legal Campbell counsel on an as-needed basis. left early replace- BDADC 2005, and neither nor his he City employees during ment are were or their service as of Executive Vice President BDADC. inception

¶ suit, 112. From its until this BDADC City leased an office from the on the level of lower municipal building. However, the Board not did hold its meetings municipal buildings. City coopera- 113. BDADCand the into entered agreements April January 1, 1997,

tion on 1, 2004. agreement, through The 2004 effective December agreement, replaced origi- 2023, nally the 1997 which was agreements until last the end 2006. Both recognized purpose that BDADCwas "created for the encouraging stimulating development economic City part within the and lands which could become corporate City." limits of the agreements provided City The that upon request, space, sup- furnish, would office clerical port, copy telephone and fax use, machine use, and postage. City privy In addition, was to BDADC's accounting records and finances at BDADC's office upon days' prior City 10 written notice. The also made (TIF) through Financing funds raised Tax Increment City's Financing Project districts in the Tax Increment development. Plan available to BDADC economic granted TIF funds under were both the 1997 and 2004 agreements "[s]uch may with the caveat funds be program may conditions as he established approval at the time of by approved of contribution of such funds Plan or at time Project to [BDADC]." allocations BDADC is funded primarily tax3 interest these room on City's allocations. that, under a cooperation agreement provided of all room tax

City ordinance, percent proceeds in an fund. deposited development would be economic fund of this economic Seventy-five percent development and disbursed to BDADC quarterly was to be allocated (including used economic incentives provide to "be to to to locate encourage related businesses expenses) 2004 City." The cooperation within expand and/or to 90 of the percent increased this allocation agreement City's development economic fund. providing upon room businesses A tax is levied those municipal taxing

temporary lodging within the borders of BDADC and the ity. cooperation agreement The 1997 between 66.75, govern § "The City provided: Stat. which referenced Wis. imposing ing municipality may enact an ordinance ... body of a rooms furnishing, of at retail... or privilege a tax on the by operators and other hotelkeepers, motel lodging to transients to furnishing that are available persons accommodations added). 66.75(lm)(a)(1995-96) (emphasis § public[.]" Wis. Stat. residents, effect, transients, the room tax. The pay not In tax is illustrative: City Beaver current room ordinance of Dam's 66.0615, furnishing privilege § of at to for the Pursuant Wis. Stats. by keepers, lodging hotel motel rooms to transients retail furnishing persons that are operators accommodations and other membership public, irrespective is to of whether available accommodations, imposed upon the required for use of the a tax gross receipts percent for the at of of the retailers the rate five accommodations, lodging rooms or within or rental of such lease January 1, city, effective 2-124(b), Dam, City Municipal Code Beaver Wisconsin http://www.municode.com/Resources/gateway.asp at available 2008). (last June ?pid=12550&sid=49 visited cooperation agree- The 1997 and protect ments included several clauses the interests City. agreements of BDADC and the Both stated that "management plan" budget BDADCwas submit a City succeeding year. to the for the calendar The management plan description was to include "a programs [BDADC] and activities intends undertake during year." agreements provided the calendar voluntary by party upon "gross termination either mis- by City "upon other, conduct" or termination change [BDADC] structural amendment of its Incorporation." cooperation Articles of Pursuant to the agreements, required BDADC was to obtain liability liability insurance, insurance, automobile employers liability City insurance. The was entitled to following protections pursuant agreements: to the

Indemnity indemnify

[BDADC] shall and hold harmless against any claims, actions, from and demands, causes action, proceedings, liabilities, together actions and costs, expenses with all and (including disbursements costs) attorneys reasonable by fees and incurred the City as a result of [BDADCfs the acts or omissions hereunder. agreements provided that "under no circumstances any alderperson,

shall officer, official, director, member employee City [BDADC] any personal or of the or have liability arising Cooperation Agreement, out of this and party any personal no liability." seek shall or claim such Nothing agreements cooperation in the limited BDADC having City only to as its client. original

¶ 117. Pursuant to BDADC's articles of incorporation, upon voluntary involuntary or dissolu- liquidation any remaining tion BDADC, or assets, payment to liabilities, its were to be distributed after non-profit organizations in located for the benefit or development and for economic Beaver Dam and used incorporation articles of retention. BDADC's business February provide 25, 1997, to that on were amended any upon such assets would instead be dissolution City. to the transferred obliga- City any to

¶ BDADC 118. cannot bind brought proposals Recommendations tion or contract. upon by City by are considered or acted to the BDADC open City public the meetings Wisconsin's records and under result, As a is able to monitor laws. support provided BDADC, to well as as requires City BDADCthat action. work complaint July filed a 15,2004, the State 119. On judgment against seeking declaratory BDADC corporation" "quasi-governmental to BDADCis meetings open records laws. The Wisconsin's complaint requiring sought a order BDADC State's court compliance with such laws. to conduct its affairs 2004, filed an the State On December complaint initial claims and amended that reiterated its against individual members added a claim of relief violating Board by participating closed-session law several sought complaint meetings. for- The State's amended from members of the all $300 feitures between $25 violation. Board for each negotiated with several In 2005 BDADC expanded development new or

businesses to attract community. negotiated, but Dam BDADC the Beaver understanding sign, itself a memorandum of did not City, LP East, Wal-Mart Stores between bring large Beaver the area. distribution center agreement. Mayor signed the Dam John Hankes February 2,2006, 122. On the circuit court found "quasi-governmental corporation" that BDADC not a is 19.32(1) §§ as that term is used in Wis. Stat. and 19.82(1).Accordingly,the circuit court held that BDADC open meetings not was and complaint against laws. The State's amended BDADC prejudice appealed. was dismissed with the State appeals appeal ¶ 123. court The of certified the (Rule) pursuant this court to Wis. Stat. 809.61. The appeals provide guidance court of asked this court to regarding meaning "quasi-governmental of term 19.32(1) §§ corporation," it as is used Wis. Stat. 19.82(1). "any appeals The court of noted that set of corporation factors used to determine 'quasi-governmental' a whether is developed a should flow from dis- legislative appeals cussion of quested intent." The of court re- develop determining this court test for private development corporation economic whether "quasi-governmental corporation" apply and to test to BDADC.

II. ANALYSIS primary ¶ I have four concerns with the majority's analysis. importance conclusion and The appreciated these concerns cannot be without under- standing impact majority's interpretation open meetings Wisconsin's records laws on private non-profit development corporations. economic my Consequently, analysis begins with a discussion of my I these laws.4 then set will forth each of four majority's analysis. concerns with the conclusion and analysis Wisconsin's records laws in section A. of this dissent is aided reference to compliance guides published by two Department Wisconsin Justice

A ¶ Wisconsin's 125. premise that an in- are on the

records laws founded produce rep- the most effective formed electorate will legislature government. has enacted Our resentative practical provide for the broadest these statutes government. Hempel City Baraboo, v. See access to 162, 120, 2d 699 N.W.2d 551. 22, 2005 WI Wis. §§ policy 19.81, 19.31 and Declarations of respectively, proclaim Wis. Stat. "the that the is entitled to greatest possible "the fullest and most information" and regarding govern- complete the affairs of information" however, time, ment. these declarations At same limiting phrases qualify with also access to information such as "consistent with the conduct of govern- "compatible with the conduct business" and §§ 19.31, Thus, 19.81. mental Stat. business." Wis. strong, presumption absolute, in favor there is but not relating government of information of disclosure Hempel, 162, affairs. 284 Wis. 2d municipalities directly engage in When development, are their activities economic open records statutes. relevant separate Accordingly, proliferation one motive corporations development has been desire economic application There of these laws. are some to avoid the people facets of successful eco- believe that some who entitled Wisconsin Public compliance guides are These Outline, 19.31-19.39, Compliance §§ Law Wis. Stat. Records 2007, Meetings A Open Compliance Law: August and Wisconsin (2007). They on the Internet at the Guide can be retrieved addresses, http://www.doj.state. following respectively: website (last visited wi.us/AWP/20070MCG-PRO/2007_PR_Outline.pdf 2008); 27, http://www.doj.state.wi.us/AWP/20070MCG- June (last visited June PRO/2007_OML_Compliance_Guide.pdf 2008). development compatible

nomic not are with the sort of require. real-time disclosure these laws majority legitimacy ¶ 127. The attacks of this motivation when it declares that "we cannot counte- government body circumventing legislative nance a transparent government by for an directive paying entity perform governmental an to function." Majority op., statutory ¶ 4. It construes term "quasi-governmental corporation" broadly so that it is likely option non-profit to close off the of a economic corporation beyond development that is reach of persons these statutes. It will mean to little involved in development majority economic to be assured that a Supreme "cognizant the Wisconsin is Court of the development realities economic need, and the at flexibility confidentiality," times, id., for and if the majority flexibility confidentiality has made that and nearly impossible. Compliance public

¶ 128. with Wisconsin's records open meetings requires subject and laws entities to procedures, policies. notices, establish various and Satis- fying requirements easy. majority these will be not holding by pointing exceptions tries to soften its to a few public majority to laws, and records see op., by acknowledging ¶¶ 81-87, and that some circum- might require public stances "that the harm to the from against disclosure should be balanced the benefit of public." Majority op., disclosure to the 84. Nonethe- many requirements likely less, that will become applicable private development corporations economic significant after this decision create will administrative burdens that will necessitate time and substantial ex- pense, compromise confidentiality subject and materials. records laws re- example, public For (an "authority" under Wis. entity an impacted

quire 19.32(1)) proce- many policies § to establish Stat. "Records" can access "records."5 grant public dures to messages and call telephone include items like e-mail are "authority" or an kept that are created logs purely personal.6 not records laws 130. Entities An policies. "authority,"

must establish "shall "quasi-governmental corporation," including make available adopt, display prominently notice at its offices ... a con- copying inspection and the estab- organization its description taining may at which" places lished times and costs thereof. Wis. records and the obtain and access 19.34(1). "separately This notice must also § Stat. 19.32(2) Stat. Wis. states: written, drawn, any means material on which "Record" electromagnetic spoken, printed, information re- visual regardless physical preserved, or characteris- of form corded or by authority. tics, being kept is an has created or which been handwritten, includes, to, typed or but is limited "Record" not films, recordings, charts, photographs, printed pages, maps, computer optical tapes (including computer tapes), printouts and notes, drafts, preliminary com- "Record" not include disks. does per- originator's putations prepared the materials for like by originator person prepared of a or in name sonal use working; purely originator are is materials which for whom no to personal property of the and have relation his custodian copyright, office; by to limited or materials which access is her bequest; published possession in the patent materials of or authority library public a are available for an other than which library. public inspection sale, at a or which are available for 6 broad, necessarily lim is but to covered records Access security. Wis. by privacy of See Stat. ited considerations 19.35(l)(am)l.-3. which the (listing examples of items to § apply). not inspect, copy, or record a "record" does right to 137 position identify authority each that constitutes public public a local office or a state office." Id. subject public ¶ 131. Entities to records laws designated must also establish office hours for access public authority regular to records. An that maintains custody entity office where hours records permit kept are "shall access to the records ... at all during times hours, those office unless otherwise 19.34(2). § specifically by regular authorized If law." no kept, authority pro- office hours are must either upon vide to the access records 48 hours written or inspect copy oral notice of intent to record, or a or period per establish a of at least two consecutive hours during authority week permitted. which to access records of the 19.34(2)(b)l.-2. § Stat.

Wis. availability requirements, ¶ 132. In addition to an authority provide "comparable must facilities to those employees inspect, copy used its and abstract" the during record or records established office hours. Wis. 19.35(2). § authority required Stat. However, an is not purchase photocopying equipment or lease or similar provide separate satisfy room use to this requirement. Id. 133. A custodian of record respond request.

records laws must to a records 19.35(4). § specific, Wis. Stat. The custodian state must denying public request. reasons for Osborn v. Regents Sys., Bd. Wis. 83, 16, WI of Univ. of requirement 266, 254 Wis. 2d 647 N.W.2d 158. This creates an administrative burden if even access to appeals records is not warranted. The court of ad 19.35(4) requirements dressed Wis. Stat. App ECO, Elkhorn, Inc. v. WI 276, Wis. 2d 655 N.W.2d510:

138 request once a is Open law mandates action records 19.35(4) received; § addresses time for com- Wis. Stat. states, part: in relevant pliance (a) authority, request for upon Each shall, record, practicable soon any as as delay, request notify the or without either fill authority's determina- requester the the part in request in whole or deny tion to added.) (Emphasis reasons therefor. 19.35(4)(a), Thus, receipt open § of an under respond request duty to to the triggers records either a requested duty produce or records. request April 24, Here, responded to the 1996 City neither It requested documents. request produced nor who custodian of the record upon incumbent inspection specifically to "state refused the demand Hathaway [v. Joint School reasons for this refusal." 1, 396[, [388,] 2d Bay], 116 Wis. City Dist. No. Green omitted). (citation (1984)] A custodian's 342 N.W.2d 682 accompanied record must be denial of access to a policy for specific public reasons by a statement Bubolz, 86-87, 82, 2d 204 Wis. refusal. Chvala v. 1996). (Ct. did not App. N.W.2d 892 did not any and therefore provide response whatsoever comply with records law. Inc.,

ECO, 2d 259 Wis. re need not make authority if an Even it or inspection copying, available for quested duty with the respond still be burdened will delay" and without "as as practicable soon request 19.35(4)(a). § Stat. Wis. to state its reasons refusal. or writing, a denial for records is request If the must be to records also denial of access partial 19.35(4)(b). Thus, authority's an Wis. writing. Stat. WTMJ, comply deny. are twofold: statutory choices 452, 457, 555 N.W.2d Sullivan, 2d Inc. v. 204 Wis. (Ct. 1996). App. "[C]omplianceat some unidentified time open in the is not authorized records law." futureO authority delays Id. at an 458. If withholds a record or granting request access to a after record a written bring requester may immediately made, a a mandamus asking action a court to order release of the record. Wis. 19.37(1); § Any WTMJ, Stat. Wis. 2d at 461. author- ity "arbitrarily capriciously delays and or denies response may request" expose punitive ato itself to damages and forfeiture not $1,000. of more than Wis. 19.37(3)-(4). § Stat.

¶ 135. Wisconsin's laws create addi- "governmental responsibilities body," tional ing for a includ- "quasi-governmental corporation." Wis. Stat. 19.82(1). § requirements open The two basic of the (1) meetings public meetings; are: laws notice of (2) meetings must be held session. Wis. Stat. 19.83(1). § presiding governmental The chief officer of a body person's designee give or such must notice of (1) (2) public; "those news media who request have filed a written for notice;" such (3) newspaper designated [state "the official under stat- ute] likely give or, if exists, none to a news medium 19.84(l)(b). § notice in the area." Wis. Stat. specifies public ¶ 136. The statute how notice given. public must be The notice set "shall forth the place meeting, time, date, matter of including any that intended for consideration at con- templated reasonably session, closed in such form as is likely apprise public members and the news 19.84(2). § media thereof." Wis. Stat. notice meeting governmental may body provide of a of a also period for a comment. Id. Public notice of a meeting governmental body given of a "shall be at least prior good 24 hours to" its commencement "unless for impossible impractical, in which notice is cause such given, may may in no case be but shorter notice case provided than 2 hours advance be less notice meeting." 19.84(3). "Separate notice

Wis. Stat. body given meeting each shall be reasonably proximate to the time at a time and date 19.84(4). § meeting." Wis. Stat. date of necessary satisfy specificity no ¶ to 137. The recently requirement this court. addressed tice was Dist., v. Area State ex rel. Buswell Tomah School See ¶¶ 178, 732 804 71, 28-32, 301 Wis. 2d N.W.2d 2007 WI (establishing a test to de three-factor reasonableness meeting subject-matter in a notice termine whether 19.84). § specific enough satisfy a Stat. As to Wis. was may satisfactory non-profit for result, it not be corporation development of to list "discussion economic development prospects" month after month economic identifying prospects. without requirement "open ¶ of Wis. 138. The session" body" "governmental § is All 19.83 also a mandate. Stat. any must be kind, informal, of formal or business "open upon session," in initiated, and acted discussed exemptions in Stat. of set forth Wis. unless one 19.83(1). 19.85(1) "open § § applies. An ses- Wis. Stat. place meeting "a is held in a is defined as which sion" reasonably of the to members accessible 19.82(3). § open to all citizens at all times." Wis. Stat. arrangement meeting current of 139. BDADC's places private Board members over at the business policy openness likely is deficient. The lunch hour holding in their bodies favors public places, municipal school, rather as a hall such Op. Att'y private premises. 125, Gen. See 67 Wis. than on (1978). holding meetings point its BDADCmade building away municipal had in which it once from the its office. v. Sands Whitnall School decision in 140. Our

District, 89, 439, 2008 WI Wis. 2d 754 N.W.2d this term, is affect likely any that is "governmental body" 19.85(1) authorized Stat. to discuss by Wis. certain Sands decision business in gist closed session. The that the discussion a properly-conducted closed longer is no off meeting discovery limits to proper litigation. sum, In compliance with the requirements

of Wisconsin's records and open meetings laws will be not be a cakewalk. set forth requirements above touch minefield only part regulatory many private development economic will corporations now be forced to These travel.7 could requirements place sig- nificant administrative burdens practical on non-profit economic development corporation like only BDADC that has one paid employee. Responding requests access records that bemay confiden- tial, privileged, or could be a hin- great time-sensitive drance to the product single work of a individual.8 Furthermore, potential lost expense productivity from complying and to avoid the taking steps necessity of complying, and additional costs of to legal counsel assure could be burdensome. compliance, up, To sum and public records requirements established majority's

7 may all It be more nearly private accurate to observe that corporations economic development in Wisconsin should be prepared to concerns, address these new compliance as the majority opinion provides guidance regarding such scant definition of "quasi-governmental corporation" as to leave all current compliance EDCs naked to issues. require The appears law a Board member to come over request office and work on a if single BDADC's paid work, employee vacation, of the is out office on or illness. likely holding present will burdens and obstacles for many development corporations in economic Wiscon- sin.

B Applying requirements ¶ 143. non-profit

meetings and records laws to a eco- development corporation single employee nomic with a questions analy- should raise serious without additional majority sis. But I have four additional concerns with the opinion: (1) majority opinion provides virtually The no regarding guidance to the how to determine entity "quasi-governmental corpora- an is a whether majority's "totality The use of a of circumstances" tion." specifying test, without a list of factors to be considered identifying dispositive, or extraordinarily unhelpful; what factors are critical or

(2) majority opinion precedents relies on from The Maryland, interpret York, New and Florida that statutory language apply unique in those states. It is a try interpret meaning mistake to of an undefined interpretation statutory term Wisconsin based on the states; of different terms in other (3) majority opinion analyze The fails to the statu- tory legislative history legislature's behind the "quasi-governmental corporation" choice of the term convincing manner; a serious and (4) majority opinion misapplies the law to the upon chosen, the "test" it has and relies facts, even under filing after the of this suit. irrelevant facts occurred 1. Guidance pure question of statu- 144. This case involves a determining meaning

tory interpretation namely, — corporation" "quasi-governmental that certain —so private their actions are entities will know whether subject public records and to Wisconsin's troubling majority opinion deeply that the laws. It is (or test, factor even a offers no clear no determinative factors), parties interested and set of enumerated for entity apply particular to determine whether a courts corporation." "quasi-governmental Instead, the ma- is a entity "[i]f jority to be advises that an does not want meetings open laws, to the change under which it then it should the circumstances Majority op., phantom guidance operates." ¶ 7. This chilling effect on entities who seek bound to have lawfully constraining requirements to avoid these statutes.9 majority opinion recognize The claims to flexibility confidentiality" in the

"the need... development municipal conduct of economic initiatives. Majority op., provide ¶ However, it does not crucial engaged develop- guidance required in the those management, day-to-day operation ment, of enti- policy goals. Instead, ties created to serve such majority cryptically only sets forth "some of the factors determining to be examined in what constitutes a majority justify "totality seeks to its of the circum by pointing test to four of this writer's decisions in stances" "totality employed test which circumstances" was Majority op., constitutional determinations criminal law. determining suspicion" 46 n.ll. The test for "reasonable Terry stop "probable make a cause" to conduct a search proper writer different from the test for deter strikes this as mining uncompensated seeking promote eco when citizens community development comply nomic in their must with prosecution by or face records laws State Wisconsin.

'quasi-governmental corporation' subject to meet- ings majority op., (empha- laws," ¶ and records 8 added), leaving might sis no usable test with which one determine what is meant this term in Wis. Stat. 19.32(1) 19.82(1). §§ Although might

¶ 146. it be easier to ask the legislature clarify scope meaning "quasi- to governmental corporation," this course is not available litigation. duty Hence, the instant it is our to make our judgment majority's best of what the term means. The uncertainty by empowering judges answer fosters to impose penalties people, case-by-case on basis, on a with virtually guidance get no of who will whacked. majority given

¶ options, 147. The was and it has attempted together to meld different tests to reach a parties desired outcome. The briefs of the and amici set give meaning "quasi- forth several choices to (based governmental corporation." primary options Two Attorney opinions) suggested. on formal General were A (based treatise) vaguer option third on a noted was also majority partially submitted, and the seems at least majority op., (discussing ¶¶ embrace it.10See 9, 35, status"). "function, effect, essence, however, In majority Any suggested chose "none of the above." options preferable majority's open- would be to the non-specific ended, sum, "test": "In we determine that entity quasi-governmental corporation an is a within 19.82(1) 19.32(1) meaning §§ if, Wis. Stat. majority opinion recognizes foreign jurisdic suggested tions and scholars have enumerated multi-factor tests to determine entities are whether laws. See majority op., 63 n.14. The majority inexplicably chooses to leave Wisconsin law confused recognizing jurisdictions while that scholars and other establish guidelines practitioners. enumerated to aid totality circumstances, it resembles a on the based Majority op., corporation." This fog requires dense without to traverse "test" any fog lines. majority option se- could have One corporations" "quasi-governmental to limit

lected would expressly by government under created those entities Attorney opinion statutory authority. A 1977 General Depart- Palmyra discussing Fire Volunteer whether interpreted law to the ment was 19.82(1) though § "[e]ven that and concluded Stat. Wis. purpose, may corporation it is not serve some a 'governmental corporation' quasi-governmental un- or 19.82(1)] § [Wis. it also is created unless der Stat. body by directly by Legislature some or statutory specific pursuant or direc- to authorization (1977) (emphasis Op. Att'y Gen. 115 tion." 66 Wis. added). Attorney opined General volun- The department question did not meet in teer fire 19.82(1) it not in because was definition Wis. Stat. govern- directly by legislature or another created body. 114-15. mental Id. at "created-directly-by-government" test 149. The easy may BDADC could skirt, but it is clear. be too to corporation quasi-governmental if not classified as a be applied. this test were potential option comes from a The second Op. Att'y Attorney opinion, 80 Wis. Gen. General (1991). majority opinion this tries to utilize explicitly

opinion, the factors enumerate but it fails By worthy important of consideration. that are majority "totality" embracing open-ended test, the an opinion. ambiguity aggravates in the 1991 Attorney opinion fo- General 151. The 1991 two factors to determine whether cused on several private corporations governmental corpo- resembled enough "quasi-governmental corpora- ration abe analysis It tion." Id. at 136. favored an aon "case light basis, case of all the relevant circumstances." opinion adopting Id. The was "that candid a fact-based corporation 'quasi- test to determine whether a ais governmental corporation'. . . creates some uncer- tainty applicability as to the law particular cases." Id. at 137. Using opinion,

¶ 152. the 1991 the Wisconsin De- (DOJ) partment subsequently compiled of Justice following non-exclusive list six factors:

(1) the corporation whether serves a purpose; (2) the corporation extent which the receives (3) funding operation; its bylaws whether the corporation either reserve positions on the board government give directors for officials or or employees, government a actor to power appoint government the employees directors; officials and the to board of (4) government the in appointed govern- whether fact employees corporation's ment officials the board (5) directors; government employees whether served as (6) corporation; officers of the the extent which government offices, the corporation was housed in used government equipment by government and was staffed employees. Open Meetings Compliance

Wisconsin A Law: Guide (2007) (citing Op. Att'y (1991)), 4 80 Wis. 129, Gen. 136 http://www.dqj.state.wi.us/AWP/2007 available at (last OMCG-PRO/2007_OML_Compliance_Guide.pdf 2008). visited June thqt It 153. should be noted list DOJ does dispositive

not include the factor that was in the 1977 opinion: namely, corporation's govern- creation

147 begins question Moreover, it with elusive ment.11 corporation public purpose," a a serves "whether length question in a class on be debated at that could philosophy. political recognizes the 1991 State's brief that The ambiguity"

Attorney opinion free is "not from General applied make factors it that "the multitude of general the basis for a standard that cumbersome as predictable yields the 1991 result." This evaluation of Attorney opinion General is consistent with DOJ's commentary guidance opinion. prior in on the that In meetings compliance guide open stated, the DOJ's 1996 (1991): regard Op. Att'y Gen. 129 "There to 80 Wis. with determining particular whether a is no clear-cut test corporation corporation resembles a closely enough 'quasi-governmental.'" to be considered Meetings Open Compliance Law: A Guide Wisconsin (1996) meetings open that DOJ 2.12It is ironic the 1996 compliance guide guide in that someone law —a non-profit position organizing private, economic early development corporation might in 1997 reference —concluded that there was "no clear-cut test" to deter-

11 language respect The in the law—with corporation" changed "quasi-governmental not since —has "quasi-governmental corporation" language The place has 1981. The public records statute been since however, language keeps evolving, so interpretation of this dispositive Attorney opinion in the factor General no longer Department on the list of appears even Justice's to be considered. factors law Department Justice's compliance guide language, included has been this same which guide during pendency removed from its 2007 this Compli litigation. Compare Open Meetings Law: A Wisconsin (2003) 3, Open with Law: Meetings ance Guide Wisconsin A (2007) Compliance 3-4. Guide particular subject entity mine whether was to Wis- consin freedom information laws. Attorney opinion

¶ 155. The 1991 General dealt private corporations employees, with boards, two whose day-to-day operations effectively were controlled opinion Thus, of Milwaukee. the result of the is analysis murky, However, understandable. is and is policy legislative based far on more than intent. option presented ¶ 156. The third to define "quasi-governmental corporation" is that found in 1 (3d Municipal § Corporations McQuillin, 2.13 rev. 1999). "quasi-public McQuillin The treatise discusses corporations," which could be similar, viewed as al- though quasi-governmental corpora- identical, not Attorney opinion quoted tions. Id. General the 1990 of McQuillin version treatise: "The term 'quasi-public [or quasi-governmental] corporation' is per governmental. not se face, or On its the term public corporation private connotes it is that not a abut 'quasi' private corporation one. But indicates public corporation has some resemblance to a in func- Op. Att'y tion, effect or status." 80 Wis. Gen. at 135 (3rd (quoting Municipal Corporations McQuillin, 2.13 1990)). Supp. ed. rev. 1987 & "function, 157. The or test effect status" in Mc- presents Quillin an enumerated list of three factors to entity quasi- consider to determine whether an is a governmental corporation although factors, records laws. These three rather

vague, present starting point "totality a clearer than governmental corpo- of circumstances" and "resembles provided by majority. Majority op., ration" standards However, "function, effect or status" test easily manipulated based on what one characterizes as a entity's entity's function, an effect, an status. majority's disagree I the conclusion 158. with corporation" "quasi-governmental for BDADCis

that purposes open meetings of Wisconsin majority's is However, less laws. the conclusion records troubling negative lasting impact of the im- than the holding. majority majority's precision in the Had pub- specific to direct the to enumerate factors chosen redeeming today's might contain some lic, decision guide. my view, it not. as a In does value Foreign 2. Precedents foreign prece- majority's The reliance on may guidance creative, it is fundamen- be but

dents tally case before this court involves the unsound. The "quasi- interpretation The term of statutes. Wisconsin corporation" Mary- in the is not found by majority. York, land, Florida cases cited New logic,13 majority tacitly recognizes leap its of but The analysis, plows through disre- a result-oriented still language garding the of these states' majority interpreta- records treats laws. by as statutes out-of-state courts if tion of out-of-state collectively developing common law of were we of freedom information. City Corporation Development ¶ 160. Baltimore of (Md. 2006), Realty Associates, 910 A.2d 406

v. Carmel questions interpretation: statutory two involved (1) Development Corpo- City of Baltimore whether (BDC) meaning body" "public ration was a within entity "Although the whether an determination on depends laws subject statutory state, interpretations language of each respective jurisdictions courts instructive." Ma rendered in other are op., jority (Md.

Maryland's Open Meetings Ann., Act Code State (LexisNexis 2004); §§ 10-501—10-512 Gov't (2) "instrumentality" whether the BDC was an purposes Maryland's of Baltimore for Public (Md. §§ Ann., Information Act Code State Gov't 10-601 (LexisNexis2004)). Realty, Carmel —10-628 910 A.2d at Maryland Appeals ¶ 161. The Court of found that many performed purely BDC inextricably functions and was linked to the of Id. at Baltimore. bylaws gave mayor 424—25. of BDC's Baltimore the power appoint to or nominate members of BDC's board including directors, board, remove members of the appoint Board, Chairman of the and to directors when positions 422,425. on the board were vacated. Id. at BDC implement, encourage public oversee, could development private projects in- and rehabilitation to city's crease the tax base. Id. at 424. BDC was tasked businesses, with the attraction of new retention of exist- ing encouragement businesses, and the stimulation and growth expansion uses, of commercial office manufacturing, warehousing, distribution, research, and development. tangible exist, Id. at 425. If BDC ceased to property purchased that contract with funds attached to city. percent would revert to Id. Over 80 BDC's budget provided by city. Id. was Maryland Appeals

¶ 162. The Court of set forth its analysis heading "Statutory Interpretation." under the Maryland, "public body" Id. at 417. In a is Meetings provisions Open notice Act. See id. at 10-501(c) (Lexis- § 419-20; Ann., Md. Code State Gov't 2004). Maryland body" "Public Nexis defined Code.14 body" Maryland entity Code means an that: "Public in the "(ii)

"(i) by: 2 individuals" and is created 1. the consists of at least applying In interpreting defined BDC, Maryland Court body" term "public Ann., Md. Code State Gov't concluded that Appeals 10-502(h)(2) and was an concept § introduced a new 502(h)(1) it set forth a § because alternative 10— from those described different set of bodies 10~502(h)(l). 910 A.2d at 420. The Realty, § Carmel 10-502(h)(2) § if had been court further explained clause, as subsidiary designated it would have been 10-502(h)(l)... (iii)." "§ Id. The court further held that that BDC was created by because there was no evidence 502(h)(1), § act or order under the court specific 10— have to consider whether BDC fell under would 10-502(h)(2). at 421. § Id. 164. The court held that BDC was a public body 10-502(h)(2) did not dis- parties

under because it to bylaws required that BDC's be multimember pute board, that its board of directors consisted of at least Constitution; statute; charter; county Maryland 2. a State 3. a rule, ordinance; resolution, bylaw; 4. an 5. a or 6. an executive Governor; of or an executive order of the chief order the authority political a of the State." Md. executive of subdivision 2004). 10-502(h)(l) (LexisNexis Ann., § Code State Gov't "(i) board, body" any multimember com- "Public includes: mission, appointed by the or the chief or committee Governor State, authority political of or executive of a subdivision by subject policy who is to the of appointed an official direction authority political chief of the Governor or executive subdivision, entity membership if the includes in its least 2 at employed by political or individuals not the State subdivi- (ii) sion; Maryland School for the Blind." Md. Code 10-502(h)(2) (LexisNexis 2004). Ann., § State Gov't Maryland The Code also excludes certain entities from the Code., "public body." definition of Md. Ann. State Gov't 2004) 10-502(h)(3) (LexisNexis (excluding, example, "any § for single entity" "any grand jury"). member city, by employed that the individuals not two by mayor. appointed Car or board was nominated Realty, 421. The court concluded 910 A.2d at mel private purely functions of there were no since Maryland the intent of the BDC, it was consistent with Meetings Open of the BDC be Act that the deliberations public. Id. at 425. to the Maryland majority characterizes analysis "totality Appeals' applying a as Court "public approach circumstances" to the defined term body." Majority op., ¶ not accurate. The 54. This is statutory Maryland interpreted instead court defined subject BDC was to ascertain whether term Maryland's open meetings pursuant to that defi- laws analysis Realty, 910 A.2d at 419-25. The nition. Carmel ("public body") Maryland statutory a defined term interpretation of an undefined is not much use ("quasi-governmental corporation") statutory term two Wisconsin statutes. Appeals Maryland next 166. The Court namely presented, question

turned to the second "instrumentality" purposes of BDC was an whether Maryland's In Act. Id. at 425-26. Public Information Maryland, "public the state's record" is Ann., 426; at Md. Code State records laws. See id. 2004). (LexisNexis 10-611(g)(l)(i) "Public Gov't original any term and means "the record" is a defined (i) by any documentary copy that: is made material government instrumentality or of a of the State unit or political or instru- received the unit subdivision or mentality of in with the transaction connection 10-611(g)(l)(i). Id., business." Appeals Maryland held that of Court city. "instrumentality" Re- of the Carmel an BDC was alty, the court stressed that A.2d at 426. The 910 was consistent with the of the

holding purpose Mary- Maryland land Public Information Act and with the intent when it enacted the act. Id. General Assembly's The court looked to a standard for the dictionary definition of and noted that "instrumentality" "[instru- is defined as 'the or state of mentality quality being instrumental' and instrumental is defined 'serving as as agent, or tool.'" Id. at 427 Merriam means, (quoting (10th 1998)). Collegiate Dictionary Webster's ed. The court also examined a number BDC's character- istics to conclude it was an "instrumentality," including the following: Directors,

The BDC's Board of to include the Chairman Board, of the appointed by Mayor are nominated or Baltimore; power he has to remove members of year the Board before their up; four terms are Mayor power vacancies; also fill City's has Department Housing Commissioner of the and Com- munity Development City's and the Director of Finance Board; permanent are members the BDC re- portion budget ceives a substantial City; its from the exempt the BDC has a tax status under the Internal Code; pursuant City's Revenue to the contract with the BDC, exist, if it City should cease to would control assets; disposition of the BDC's BDC is also autho- rized prepare adopt Plans, Urban Renewal Unit Development, Zones, Industrial Retention and Free Enterprise traditionally Zones which are functions. We also note that the repre- Solicitor sented the in BDC this matter. (footnotes omitted).

Carmel Realty, 910 A.2d at 428 168. The statutory interpretation problem the instant case is similar to the problem faced Maryland Court of Appeals the unde- interpreting Hence, fined term "instrumentality." the majority opin- ion turns to some of the same methods to construe using corporation," the as "quasi-governmental such majority op., dictionary. However, the 32. See Maryland description majority's case blends analyses separate Maryland and un- of defined court's statutory "to- of the into an evaluation terms defined tality op., majority 54. This See of circumstances." Realty analogize majority Carmel to allows Majority op., ¶¶ 68, 66, 72. instant case. Enterprise News, Inc. v. ¶ 169. Buffalo Buffalo (N.Y. 1994), Corp., in-

Development N.E.2d 277 Enterprise question the Buffalo of whether volved (BEDC), non-profit corpo- Corporation Development programs, administering government was loan ration meaning "agency" of New York's Freedom within an (FOIL). "Agency"was Id. at 278. Law of Information municipal depart- "any state or as statute defined committee, division, commission, bureau, ment, board, public corporation, authority, public council, office or governmental entity performing other any proprietary one or more the state or function for judiciary except state municipalities or the thereof, (McKinney legislature." Off. Law subd. N.Y.Pub. added). 1990) (emphasis Appeals concluded Court of The New York constituting "agency" FOIL, under an

that BEDC was entity." at "governmental News, 644 N.E.2d Buffalo purposes "to relieve were BEDC's stated 279-80. provide promote unemployment, for and to reduce [to] employment. encour- . . and maximum additional ag[e] community development... [ ] . .. and in the government in the to act the burdens lessen public (brackets original). at 278 interest." Id. undeniably purposes were BEDC's observed court governmental. "created exclu- BEDC was Id. at City invest- sively by to attract of Buffalo growth ment and stimulate in Buffalo's downtown and neighborhoods.... Moreover, the BEDC describes itself reports 'agent' in its financial brochure as an added). (emphasis of Buffalo." Id. ¶ 171. The New York statute's definition of "agency" "governmental entity," quasi- included a not a governmental entity. § N.Y. 86, Pub. Off. Law subd. 3 1990). (McKinney The News 'court held that Buffalo government. was, BEDC in effect, an arm of See Buffalo By avoiding News, any 644 N.E.2d at 279. discussion of play majority the statute News, at in here Buffalo majority op., buries this crucial distinction. See ¶¶ entity, 55-56. BEDC was viewed as a something resembling governmental entity. not Com- pare majority op., News, 644 N.E.2d at 279 with Buffalo ¶ Furthermore, 63. the New York court's decision was premised upon its determination that BEDC was "cre- exclusively by City ated and for the of Buffalo."Buffalo News, 644 N.E.2d at 279. The of Beaver Dam did not create BDADC. Finally, majority 172. discusses News and Twitty Schwab,

Sun-Sentinel Co. v. & Hanser Architec- (Fla. Group, 1992), Inc., tural 596 So. 2d which following question: corporation involved the "Doesa act public agency by on county behalf of a when hired perform professional architectural services for the con- provisions struction of a school so as to be to the Chapter 119 of the Florida Statutes?" Id. at 1030. "Agency" broadly is defined in the Florida Statutes:

"Agency" any state, means county, district, authority, or officer, municipal department, division, board, bureau, commission, separate or other government unit of created or any established law and other private agency, person, partnership, corporation, or entity acting business any public on agency. behalf of 1989) 119.011(2) (West (emphasis § Fla. Stat. Ann. added).15 Sun-Sentinel, an architec- In News Twitty firm, Schwab, & Hanser Architectural

tural corporation, Group, private contracted with a Inc., a provide architectural services rela- board to school building to the of school facilities. tion construction reporter, Sun-Sentinel, 596 2d at 1030. A So. News requested pursuant he ch. Florida Statutes corporation's inspect the in the allowed to files be projects. possession to the Id. firm refused related argued agency not an as set forth Fla. that it was 119.011(2). § Id. Stat. siding firm, the In with the architectural interpreting Supreme

Florida "agency" Court noted that courts 119.011(2) Stat. make a determi- under Fla. "totality the factors." Id. at 1031 nation based on the of (citations omitted). provided The court a non-exclusive analysis.16 in its The court list of factors considered 15 Supreme has The Tennessee Court observed distin public records disclosure scheme should be Florida's public jurisdictions from because "the terms of its guished other 'acting on explicitly private records statute extend to entities Co., a[ny] agency.'" Memphis Publ'g v. Cherokee public behalf (Tenn. Servs., Inc., 67, 78 Family & S.W.3d n.12 Children 87 2002) Schwab, (citing Twitty & and Sun-Sentinel Co. v. News (Fla. Inc., 1029, 2d 1031 Group, 596 So. Hanser Architectural 1992) 119.011(2))). § (quoting Fla. Stat. 16These were: factors (2) (1) funds; commingling public funding; the level of (3) activity publicly prop- was conducted on owned whether the (4) integral part erty; an of the services contracted for are whether (5) decision-making process; public agency's whether the chosen entity function or function private performing a (6) agency perform; public the extent

which the otherwise would of, with, public regulation over agency's control involvement emphasized "agency" that the fact term is defined broadly under Florida's Public Records Act to include "acting any private public agency." entities on behalf of 119.011(2)). § (quoting Id. Fla. Stat. The court con- reviewing totality that, cluded factors, after of the acting public agency firm was not on behalf of so Chapter "agency." as to fall under 119's definition of Id. at 1033. public laws, 175. Unlike Florida's records private

Wisconsin's not laws do extend to acting agency." Compare entities "on behalf of a 119.011(2) 19.32(1). § Fla. Stat. with Wis. Stat. There- majority's fore, it is difficult swallow the extension analysis distinguish in News Sun-Sentinel to Majority ("Moreover, op., ¶ the case at hand. unlike Sun-Sentinel, the architecture firm News and money So. 2d BDADC received tax in order to provide public merely compensa- service, not to receive tion."). majority's analysis foreign pre- 176. The

cedents above discussed eschews discussion of the unique statutory language by analyzed Mary- courts in land, York, New and Florida to determine whether these states' records and laws applied particular entity. discussing to a Instead of statutory precedents, majority real issues these regarding instead draws broad conclusions these cases (7) private entity; entity private whether the was created (8) public agency; public the agency whether the has a substantial (9) private entity; financial [whose] interest in for benefit private entity functioning. is Schwab, News Twitty and Sun-Sentinel Co. v. & Hanser Archi (Fla. 1992) (citations Inc., Group, tectural 1029, 1031 596 So. 2d omitted). 158 majority's approach.17 The its to suit result-oriented satisfactory analysis foreign precedents is not a of these differently technique interpreting worded Wiscon- sin statutes. History, History, Legislative Statutory Intent appeals' of problem certification to this 177. The court methodology of the

court with the indicated opinion. Attorney It stated that the 1991 1991 General legislative opinion not address the intent behind "does corporations 'quasi-governmental' in the inclusion of scope open of records laws." essentially persists Unfortunately, problem in the this majority opinion, appeals' plea of to even after the court "any to set of used determine this court that factors corporation 'quasi-governmental' is should whether legislative developed from intent." discussion flow of added.)18 (Emphasis key not in the statutes are 178. Because terms being capable of understood reason- defined and are 17 ("With See, finances, op., respect to e.g., majority 66¶ development corporation subject is BDADC akin to the Realty, meetings and in Carmel and akin laws News."); in development corporation considered Buffalo ("In BDADC is similar to the majority op., respect this 74¶ News, stated its bro corporation in which Buffalo agent city."). it was an of a chures and financial statements that 18 recently its Appeals Maryland of addressed Court cases, statutory "In duty under similar circumstances: some this ambiguity, job Court text reveals and then intent, using light legislative all ambiguity resolve that statutory construction our dis tools at resources and Assocs., Corp. Realty Dev. v. Carmel posal." Baltimore 2006) (Md. State, v. A.2d (quoting Chow 910 A.2d (Md. 2006)). 388, 395 ably well-informed persons senses, different a court interpreting these terms needs to employ all the tools of statutory interpretation. 179. The should analysis begin

¶ with the text the sections embodying the term "quasi-governmental corporation." 19.32(1) 180. For example, § Wis. Stat. reads:

"Authority" any following means having custody office, of a record: a official, state or local elected board, agency, commission, committee, council, depart- ment public body corporate or politic by created constitution, law, ordinance, order; govern- rule or quasi-governmental mental or corporation except for Bradley sports center corpora- entertainment tion; exposition a local district under subch. II of ch. 229; a family 46.2895; care any district under s. court of law; assembly senate; or a nonprofit corporation which receives more than 50% of its from funds county municipality, or a 59.001(3), as defined in s. which provides services related health or safety county to the municipality; nonprofit corpo- operating ration Olympic training ice center under 42.11(3); s. formally or a constituted any subunit of the foregoing. 181. There is a common characteristic to most of

the entities listed in the definition of "Authority": they are indisputably government entities, including elected officials, or they are entities "created by constitution, law, rule or order." Id. Local exposition districts ordinance, are authorized statute and created by a sponsoring municipality. § Wis. Stat. 229.42. care Family districts are authorized by statute and created a by county board. 46.2895(1). Wis. Stat. By contrast, BDADC is not a local office or local agency or public body corporate politic created aby government entity. non-profit corporation. BDADC is a nonprofit

legislature applied public records to "a law corporation more than 50% of its funds which receives county provides municipality . or a . . and which from a county safety or the related to health services 19.32(1) added). § municipality." (emphasis or Wis. Stat. legislature by language. BDADCis not covered this The way corpo- non-profit its reach another went out of operating Olym- non-profit corporation ration: obviously pic training BDADC But is not ice center. by provision that either. covered statutory ¶ con 183. There is a familiar canon of expression or of certain struction that enumeration things implies things. other C.A.K the exclusion of See (1990). State, 612, 621, v. 154 Wis. 2d N.W.2d may infallible, is it "as this canon not be used While legislative discovering State ex rel. means of intent." County, 2d 101, Cir. Ct. Milwaukee 176 Wis. Sielen v. (1993). Implicit majority in the 112, 499 N.W.2d 657 opinion entity's principle as is the that an status corporation, corporation non-profit when the is corpo even government, by exempt not not created does majority The has failed from records law. ration legislature intended this result. demonstrate only phrase ¶ The left in the definition of 184. "authority" governmental quasi-governmental or "a is Bradley sports except corporation for the center 19.32(1). § corporation." Ref- Wis. Stat. entertainment significant. Bradley Bradley is erence to the Center corporation public body corporate and "a Center is chapter politic." an It is the entire It was Wis. Stat. ch. 232. Wisconsin Statutes. See legislature. authorized Bradley corpora- Admittedly, Center 232.03(1), § non-profit corporation, Wis. Stat. tion is a but six of its nine board members are appointed by governor, § Wis. Stat. 232.03(2)(a), implying signifi- cant degree of state influence on the Bradley Center's statutorily defined mission. 186. The "a phrase governmental quasi- corporation" has legislative history.

Wisconsin's current open meetings laws their have origin the Anti-Secrecy Law of 289, 1959. See ch. Laws of § Wis. creating Stat. 14.90. (1959) Wisconsin Stat. 14.90 reads

part: (1) Open meetings governmental bodies. In rec-

ognition of representative the fact that a government of type the American dependent upon an informed electorate, it is declared to policy be the of the state that is entitled to the fullest and complete most information regarding government the affairs of as is compatible with the governmental conduct of affairs and the transaction of business.

(2) implement To and public policy insure the expressed, herein meetings all of all state and local governing and bodies, boards, administrative commis- sions, agencies, committees and including municipal and quasi-municipal corporations, unless otherwise expressly provided by law, publicly shall be held and open to all times, citizens at all except as hereinafter provided. No formal any action of kind shall be intro- duced, upon deliberated adopted any or at closed execu- (Em- tive meeting session or any closed of body. such added.) phasis § Wisconsin Stat. ¶ 14.90 was amended renumbered in § 1969 to Wis. Stat. 62, § 66.77. 276, ch. Laws of 1969. The "municipal or quasi-municipal cor- poration" language was continued in this new statute.

162 be may we able discern 189. Consequently, "municipal corporation" "quasi- of meaning the cases and by examining corporation" municipal Anti-Secrecy the time the Law was statutes in at place contemporary as well as adopted, interpretation.19 v. Free School Dis High In Iverson Union 353, (1925), 202 this court trict, 342, N.W. 788 186 Wis. stated: High School District of the Towns Union Free

[The corpora- municipal Curran] of is not Springfield of very accorded the rank grudgingly tion. It is McQuillin, quasi-municipal corporation. Corp. 1 Mun. agent for the sole It is of state 113.... but system public administering purpose state's as only powers such are conferred education has by necessary expressly implication.

This was in Schaut v. Joint School ruling affirmed River, 191 Wis. District No. Towns Lena and Little (1926). These show 104, 107, 210 decisions N.W. gov essential performing quasi-municipal corporations ernmental functions. later, the court of than years 191. More Milwaukee Sewer- Metropolitan described the

appeals (MMSD) corporation: as a quasi-municipal District age 30,1960, Attorney Reynolds December General John On Anti-Secrecy Law," Involving Opinions "Synopsis of issued a con "public agencies" and on activities of which focused University of Regents cluded that district, council, sewerage county a Wisconsin, joint city a were school and committees personnel, and hoards bureau open Reynolds, W session. John required to be conducted Law, Involving Anti-Secrecy Wisconsin Synopsis Opinions 12, Attorney 1961, 13, 22. The General Counties, Dec. at to those entities repeatedly characterized 12, at agencies." Id. "public laws as 163 quasi-municipal corporation pro- MMSD is which ap- sewerage disposal vides treatment and services to proximately twenty-eight municipali- Milwaukee area currently engaged fifteen-year ties. MMSD in a water pollution program designed to upgrade abatement sewerage system. rehabilitate the In an district's effort capital to recover cost the project, MMSD sought levy property capital charges value-based against Mequon municipalities other which county. MMSD services outside Milwaukee Rzentkowski, 846, State ex rel. v. 849, Lank 141 Wis. 2d (Ct. 1987). App. 416 N.W.2d 635 In 2000 the court appeals "[ajgencies, observed another decision that municipal corporations corpora quasi-municipal powers are all tions only creatures of the state their are by those ascribed to them the state." Lake Silver Sanitary App DNR, v. 19, Dist. 2000 WI 8, (footnote omitted). 217, 2dWis. 607 N.W.2d50 All these portray corporations quasi-municipal decisions es as sentially government entities. legislature

¶ 192. The revised and renumbered laws in 1976. 426, See ch. Laws of municipal quasi- 1975. This enactment saw "a or municipal corporation" changed governmental to "a or quasi-governmental corporation." pro majority has legislative history showing duced no an intent seri ously expand scope of the law with the substituted language. why Attorney This is General La said Follette year passed, "[e]ven 1977, in though corporation may after the law was public purpose, serve some it 'governmental quasi-governmental corpora is not a or 19.82(1), Stats., tion' under sec. unless it also is created directly by Legislature some body pursuant specific statutory authorization or (1977). Op. Att'y direction." 66 Wis. Gen. This opinion why that "the term he in a 1985 added corporation1 'quasi-governmental is limited to nonstock by Legislature body corporations politic to created the essentially perform functions." 74 Wis. (1985). Op. Att'y as the relevant 38, Gen. Inasmuch changed portion since it is has not been law "quasi-governmental corporation" a hard to fathom how development corpo non-profit a now includes economic completely government not the ration, created government, power to bind the that has without agreement gov cooperation perform the services for to emp single voluntary through a board and a ernment loyee.20 authority gain in- 193. There is for citizens to City by the work submitted the

formation about denominating non-profit small BDADC this without corporation. corporation quasi-governmental See as a 19.36(3). Wis. Stat. Applicability Special A on Committee Meetings

Open Quasi-Governmental Bodies Law to Committee) (Special recently the studied issue before making although court, no recommendation and, this Legislature, proposed committee’s Wisconsin requir report "bright-line test, as that a such indicated Meetings ing Open compliance for an Law with corporation development that uses economic budget specific percentage that has funds of its of lan majority opinion discusses the modification The Majority op., in 1976. guage in the statute legislature language, "By changing Then it states: [B]y changing meetings law.... expanded open the reach of the statutes, legislature language per public." are se apply to entities that not expanded the law to Id., legislative 34,36. majority provide a shred of fails ¶¶ support newly principle minted of law. history to this specific might number officials its board," on Legislative Proposed be favorable. Wisconsin Council Legislature, Report 2007-01, to the PRL 22, 2007, Feb. http://www.legis.state.wi.us/lc/ 5, at available at (last publications/prl/PRL2007-01.pdf 27, visited June 2008).21 Special

¶ 195. The Committee reviewed several 19.32(1) §§ proposed amendments to Wis. Stat. and 19.82(1) that would have included or excluded "eco- an development corporation" nomic or from within the public reach of Wisconsin's and records proposals bright-line laws. These were based on crite- ria. Legislative pro-

¶ 196. One Wisconsin Council posal development would have defined "economic cor- poration" entity and excluded such an if both of the "(a) following corporation were satisfied: The receives through less than of 50% its cash funds or inkind governmental contributions, such as the use of build- ings, equipment, or staff, from the state or from a "(b) county, city,village, town"; or Less than onehalf corporation's board less than onehalf of the corporation's public public of officers consist officials or employees." Special Applicability Open Committee on Meetings to Quasi-Governmental Law Bodies, WLC 12, A 2006, Attorney December letter from then General Peggy Lautenschlager Senator Fitzgerald State Scott also bright "[a]dopting indicated that line test based on source funding would serve the well. gives entity It notice it comply when must with the Peggy laws." Letter from Lautenschlager, Attorney Wisconsin (Dec. General, Fitzgerald, 12, to Scott Wisconsin State Senator

2006) http://www.legis.state.wi.usAc/committees available at (last /study/2006/QGOV/filesAautenschlagerltr.pdf June visited 2008). 27, http://www.legis.state.wi.us/lc/ 0047/01, 4 available at (last committees/study/2006/QGOV/files/0047_l.pdf 2008). visited June proposal have defined "eco- Another would development corporation" an and included such

nomic body" entity "governmental in Wis. definition of 19.82(1) 19.32(1) following §§ if either of the Stat. "(a) corporation at satisfied: receives criteria were through in cash or inkind of its funds least 50% contributions, such as the use build- ings, equipment, staff, from the state or from or "(b) village, county, city, town"; or or At least onehalf of corporation's onehalf of the board or at least pub- corporation's officials officers consists of Applicability employees." Special on lic Committee Open Meetings Bodies, Quasi-Governmental Law http://www.legis.state. 0048/01, 2 at WLC available wi.us/lc/committees/study/2006/QGOV/files/0048_l.pdf 2008). (last 27, June visited Special sig- ¶ The fact that the Committee 198. bright-line criteria are needed to determine naled that corporations development the treatment of economic purposes of Wisconsin for present do not that the statutes

records laws is evidence majority. result announced dictate the convincingly majority ¶ The has failed 199. history, legislative statutory history, or other utilize phrase "quasi- intent use of the behind evidence 19.32(1) §§ corporation" Wis. Stat. 19.82(1). majority "test" left the with a The has guidance. provides no that definitive Application 4. majority's application it

¶ "test" The (1) majority reasons: creates is deficient for two 167 relies on certain facts that occurred the State filed after complaint its amended in December 2004 when those strengthen disregards case, facts the State's but it facts changed after December 2004 if facts those weaken (2) "quasi- case; State's BDADC is not a governmental corporation," "totality even based on the Attorney opin- circumstances" test of 1991 General ion. adjudicative regard- First, facts relevant

ing the nature of are those in BDADC existence at and complaint before the time the State's amended was filed regarding on December 2004. To consider facts analyze BDADC that occurred after this date is to entity different from the one the State's amended com- plaint asserts violated

laws. majority recognize

¶ 202. The does not this dis- following tinction and instead relies on the irrelevant (1) evaluating facts in BDADC: "In the of2005, first half example, the room tax contribution accounted for percent Majority op., about of BDADC'sincome." (2) (emphasis added); plan BDADC's "2005 allows that may negotiate BDADC financial incentives for busi- dealing nesses and work on with infrastructure and government approval attracting issues related to busi- op., Majority added); (emphasis ness to the area." (3) negotiated "In 2004 and BDADC on the City's regarding potential developments behalf variety Majority op., (emphasis ¶ of businesses." 24 added). bearing None these facts has on whether BDADC, it as existed when the State's amended com- plaint "quasi-governmental filed, was constituted cor- poration."

168 ruling though ¶ time, even this 203. At the same prospective, no the fact that BDADC been made has longer municipal building in a Dam has Beaver an office given significance. no apply properly ¶ if Second, 204. this court were to Attorney 1991 like used in the test the one a fact-based "quasi- opinion, not constitute BDADCwould General governmental corporation." (1991), Att'y Op. 205. In 80 Wis. Gen. Attorney analyzed whether the Milwaukee General (MEDC) Corporation Development Met- Economic (MMEC) Enterprise Corporation ropolitan Milwaukee corporations quasi-governmental under Wis. Stat. were 19.82(1) Attorney to laws. were that both corporations these entities General concluded quasi-governmental the statute un- under Op. from this case. Wis. der facts distinct those Att'y Gen. at regard Attorney MEDC, the Gen- to With upon following facts reach his conclu- relied

eral city-owned all MEDC offices were located sion: City buildings; under MEDC's contract with Department of Milwaukee, the Commissioner president, presi- City Development selected the vice secretary, all MEDC; MEDC's dent, and treasurer city employees of MEDC's staff were some officers city city provided employees; MEDC all with were (although supplies space, equipment, and its office city, required MEDC was to reimburse grants obligation against MEDC received offset was city); MEDC's nine were and four of directors from the Id. at 130-31. of Milwaukee officials. Attorney regard MMEC, Gen- 207. With following upon facts reach his conclu- eral relied development corporation provided economic sion: loans with funds the obtained the city under federal Small Business Administration two program; of city MMEC's directors were council members and one employee; was a the of city principal office MMEC was of all MMEC Department City Development; offices in were located city-owned buildings; city selected MMEC, the officers for a city and official selected all of MMEC's all officers; current MMEC officers and some of its staff members city were employees; city all office provided space, equipment, supplies MMEC; needed cost by city and the incurred in staff and other resources to supplying MMEC was offset Id. at against MMEC grants city. received from the 131-32. 208. The General Attorney concluded as follows

with regard MEDC and MMEC:

The fact that MEDC MMEC serve a by purpose promoting development economic in the itself, City not, of Milwaukee is to make the sufficient corporations "quasi-governmental."... is the Nor fact that MEDC and MMEC receive funding most of their However, from sources. ... in addition to these facts, nine city four MEDC's directors are officials. They serve as positions directors virtue of their as officials, city private city not as citizens. The selected president, president, vice secretary and treasurer of city MEDC and MMEC.All of those employ- officers are day-to-day corporations operations both ees. are, therefore, subject city employe[e]s. to the control of Further, Department Development is the principal place of for both business MEDC and MMEC. corporations enjoy privilege being Both housed in city-owned buildings, using city equipment sup- plies having corporate officers and included staff on city payroll city employe[e] and in the plan. benefit In light facts, of all I these conclude that MEDC and MMEC resemble a corporation pur- closely enough to constitute a pose, effect status corporation" meaning within the "quasi-governmental 19.82(1). of section omitted). (citation Att'y Op. at 136

80 Wis. Gen. MMEC, Like and BDADC MEDC receives funding this of from source—in case most its city Dam's tax and interest on the of Beaver room only is However, of that tax. this one factor allocations totality weighing of facts all and to consider circumstances. by its of Direc- 210. BDADCis controlled Board Only voting of

tors, of 12 members. two which consists City, unlike these members are officials of nine members of MEDC and MMEC. four board manages officers, BDADC's Id. BDADC's Board elects BDADC, all and controls the assets of and formulates policies programs. corporate Board, The not the and city replacement Fur- Dam, of elects members. Beaver place never taken at thermore, Board have any facility. City single compensated, full- BDADC has a employee, President, who is

time its Executive Vice by paid solely supervised, Board, not the hired, City. of BDADC not The Executive Vice President City employee, MMEC, unlike the officers MEDC and City employees selected were all whom Milwaukee City by The activities at 136-37. of Milwaukee. Id. carried out Vice President were of BDADC's Executive City Campbell no Trent little or use of resources. with computer, virtually had his own work, did all his own City, and never consulted a network with the was not on enjoyed attorney legal Campbell City's no for advice. 893.80(4). immunity under Wis. Stat. represent City in this lawsuit. does not BDADC cooperation ¶ 212. BDADC's 1997 agreements provisions requiring included BDADC to indemnify city of Beaver Dam and hold it harmless "any for claims, demands, actions, action, causes of proceedings, together liabilities, actions with all expenses (including costs, and disbursements reason- costs) attorneys City able fees incurred aas [BDADC]'s result of the acts or omissions." The fact obligated indemnify City any that BDADCis wrongs relationship committed the course their suggests independent that BDADC and the are independent entities that make decisions. important, authority ¶ 213. Most BDADC has no city to bind the of Beaver Dam in contract or to create obligations City's municipal on the behalf. No action by agreements any nego- can be BDADC, taken and it corporations tiates with other and entities are legislative process (including open to the normal meet- laws) ings being officially and before approved adopted policy. as majority concluding

¶ 214. The errs in that quasi-governmental corporation. BDADC is a BDADC quasi-governmental corporation, does not constitute a entity governmental corpora- i.e., an that "resembles a majority op., totality tion," ¶ 99, under of all facts and circumstances.

III. CONCLUSION majority impose 215. The has chosen to new significant private non-profit burdens on some development corporations économic in Wisconsin while simultaneously leaving holding mys- the reach itsof tery. doing guidance provide In it so, has failed to to the public regarding "quasi-governmental the definition of 19.82(1) 19.32(1) §§ corporation" in Stat. Wis. appli- regarding satisfactory conclusion to reach Accordingly, language I must BDADC. cation of respectfully dissent. PA- that Justice state I am authorized joins dissent. this ROGGENSACK DRAKE

TIENCE notes unlike Enterprise Corporation, poration all of and the private individuals, that most BDADC's are officers private Further, BDADC's are citizens. of its directors only employee appointed and is the board full-time City. points employee fact also to the an It not determining appli- "totality approach of factors" employing entities). cability private laws 11 analyzing totality of Although agree parties that approach, objects dissent to the proper circumstances is Dissent, uncertainty. ground on it fosters approach tests, along totality of with apply circumstances 146. We ¶ rights. uncertainty, involving our basic in cases most attendant 98, 75, 1, 2d 717 N.W.2d v. 2006 WI 294 Wis. Young, See State (Fourth Thiel, 111, 62, Amendment); 2003 WI State v. 729 (Sixth right Amendment 571, 2dWis. 665 N.W.2d 305 264 Lindell, 41, 689, 2d counsel); 245 Wis. State v. WI Secrist, 224 jury); State (right to an unbiased v. 629 N.W.2d (1999) (right be 201, 218, that arrest 2d 589 N.W.2d 387 Wis. cause). circum totality only probable Applying with made doing so problematic context is no more than test this stances rights. basic involving in cases such

Case Details

Case Name: State v. Beaver Dam Area Development Corp.

Court Name: Wisconsin Supreme Court

Date Published: Jul 11, 2008

Citation: 752 N.W.2d 295

Docket Number: 2006AP662

Court Abbreviation: Wis.