State ex rel. Krueger v. Appleton Area School District Board of Education
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The Supreme Court reversed the decision of the court of appeals that affirmed the circuit court’s grant of summary judgment in favor of the Appleton Area School District’s Communications Arts 1 Materials Review Committee (CAMRC) and the Appleton Area School District Board of Education on Plaintiff’s complaint that CAMRC failed to comply with the open meetings law. The circuit court concluded that CAMRC was not subject to the open meetings law. The Supreme Court held that CAMRC was a “state or local…committee…created by…rule” and therefore met the definition of “governmental body” under the open meetings law, Wis. Stat. 19.82(1). Accordingly, CAMRC was subject to the terms of the open meetings law.
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2017 WI 70 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2015AP231 State of Wisconsin ex rel. John Krueger, Plaintiff-Appellant-Petitioner, v. Appleton Area School District Board of Education and Communication Arts 1 Materials Review Committee, Defendants-Respondents. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 370 Wis. 2d 787, 882 N.W.2d 870 (2016 – Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: June 29, 2017 February 15, 2017 Circuit Outagamie Vicki L. Clussman ABRAHAMSON, J. concurs, joined by A.W. BRADLEY, J. (opinion filed). DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the plaintiff-appellant-petitioner, there were briefs filed by Richard M. Esenberg, Brian McGrath, Thomas C. Kamenick, and Wisconsin Institute for Law and Liberty, Milwaukee, and an oral argument by Richard M. Esenberg. For the defendants-respondents, there was a brief by Andrew T. Phillips, Christine V. Hamiel, and von Briesen and Roper, S.C., Milwaukee, and oral argument by Christine V. Hamiel. An amicus curiae brief was filed on behalf of The Wisconsin Department of Justice by Anne M. Bensky, assistant general, and Brad D. Schimel, attorney general. oral argument by Anne M. Bensky. attorney There was an An amicus curiae brief was filed on behalf of The Wisconsin Freedom of Information Counsel, Wisconsin Newspaper Association and Wisconsin Broadcasters Association by April Rockstead Barker and Schott, Bublitz and Engel, S.C. An amicus curiae brief was filed on behalf of Wisconsin Counties Association, League of Wisconsin Municipalities, Wisconsin Association of School Business Officials, Wisconsin Association of Association of School School Administrative Services, Administrators, and Personnel Boards, Administrators, Wisconsin Association Wisconsin of Association Wisconsin Council Wisconsin of School for School District Administrators by Joseph L. Olson and Michael Best & Friedrich LLP, Milwaukee. 2 2017 WI 70 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2015AP231 (L.C. No. 2013CV868) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin ex rel. John Krueger, Plaintiff-Appellant-Petitioner, FILED v. Appleton Area School District Board of Education and JUN 29, 2017 Diane M. Fremgen Clerk of Supreme Court Communication Arts 1 Materials Review Committee, Defendants-Respondents. REVIEW of a decision of the Court of Appeals. Reversed and cause remanded. ¶1 decide MICHAEL whether J. GABLEMAN, the J. Appleton This Area case requires School us to District's Communications Arts 1 Materials Review Committee ("CAMRC") was a governmental body subject to Wisconsin's open meetings law. John Krueger, the parent of a child who attended school in the District, sued CAMRC and the Appleton Area School District Board of Education (the "Board"), alleging that CAMRC failed to comply No. The Outagamie County circuit court1 with the open meetings law. granted summary judgment 2015AP231 in favor of the Board and CAMRC, concluding that CAMRC was not subject to the open meetings law. We now review the unpublished decision of the court of appeals2 that affirmed the circuit court's grant of summary judgment. ¶2 We reverse the decision of the court of appeals and hold that CAMRC met the definition of "governmental body" under the open meetings law and therefore was subject to its terms. See Wis. Stat. § 19.82(1) (2011-12).3 Where a governmental entity adopts a rule authorizing the formation of committees and conferring on them the power to take collective action, such committees are "created by . . . rule" under § 19.82(1) and the open meetings law applies to them. Here, the Board's Rule 361 provided that the review of educational materials should be done according to the Board-approved Assessment, Instruction Handbook (the "Handbook"). Curriculum, & The Handbook, in turn, authorized the formation of committees with a defined membership and the power to review educational materials and make formal recommendations for Board approval. Because CAMRC was formed as one of these committees, pursuant to authority delegated to it 1 The Honorable Vicki L. Clussman, presiding. 2 State ex rel. Krueger v. Appleton Area Sch. Dist. Bd. of Educ., No. 2015AP231, unpublished slip op. (Wis. Ct. App. June 28, 2016). 3 All subsequent references to the Wisconsin Statutes are to the 2011-12 version unless otherwise indicated. 2 No. 2015AP231 by the Board by means of Rule 361 and the Handbook, it was "created by . . . rule" and therefore was a "governmental body" under § 19.82(1). ¶3 We begin by setting forth the relevant factual background surrounding the District's rules governing curriculum review and the formation and operation of CAMRC.4 We next analyze the statutory criteria that an entity must meet in order to be a "governmental body" subject to the open meetings law. We then apply these criteria to CAMRC, and we conclude that it was a "governmental body" under Wis. Stat. § 19.82(1) and therefore was subject to the open meetings law. I. A. ¶4 BACKGROUND The District's Rules Governing Curriculum Review Under the Wisconsin statutes, a school board is vested with the authority to "adopt all the textbooks necessary for use in the schools under its charge." Wis. Stat. § 118.03(1). In the Appleton Area School District, the Board adopted Rule 361,5 which recognized that the Board, "as the governing body of the 4 As the court of appeals recognized, the parties have agreed that there are no disputed issues of material fact. Krueger, unpublished slip op., ¶2 n.1. 5 Rule 361 was adopted by the Board in 1993 and amended in 2003. On October 24, 2011 (after the formation of CAMRC), the Board amended Rule 361 again and renumbered it "Rule 361.1." The parties refer to Rule 361 and Rule 361.1 interchangeably. Because there are no differences that are material to this case, and because Rule 361 was in effect at the time that CAMRC was formed, we cite to Rule 361 in this opinion. A full copy of Rule 361 as it appears in the record is attached to this opinion as Appendix A. 3 No. School District, materials is utilized [District]." legally within responsible the for instructional all 2015AP231 educational program of the Rule 361 further provided that "[t]he selection of educational materials is delegated to the professionally trained and certified personnel employed by the school system." section titled "Procedures for Selection of In a Educational Materials and Textbooks," Rule 361 provided that "[c]urriculum revision is an ongoing process as defined in the Board approved Appleton Area School District (AASD) Assessment, Curriculum, & Instruction Handbook. This Handbook delineates the processes leading to Board approval for curriculum revision, adoption of new courses, and implementation of curriculum materials." Handbook had been developed by the District's The Assessment, Curriculum, and Instruction Department (the "ACI Department") and presented to the Board for approval. The Board had voted to adopt the Handbook on January 13, 2003. ¶5 By providing in Rule 361 that the selection of educational materials was delegated to the ACI Department and by adopting the Handbook to govern the performance of those duties, the Board directed the ACI Department to follow the Handbook when recommending educational materials for Board approval. The head of the ACI Department, Kevin Steinhilber, acknowledged this in his deposition.6 Rule 361 did not prohibit the ACI Department 6 When Steinhilber was asked if it was correct that, "in the Board's rule, it tells you that when you do curriculum revisions, you are to follow the process in the handbook," he responded, "I would agree with that." 4 No. 2015AP231 from revising the Handbook or modifying Handbook procedures to fit different situations.7 the Board's formal But Rule 361 nevertheless represented authorization for the ACI Department to review and recommend educational materials for Board approval pursuant to the processes in the Handbook. ¶6 The Handbook provides that curriculum review is to be performed on a 6-year cycle, on a course-by-course basis, by committees formed for that purpose.8 As the Board and CAMRC explained in their responses to Krueger's discovery requests, The curriculum cycle, as set forth in the ACI Handbook, contemplates the formation of committees for program and course review, including provisions for the committee makeup, application process for committee membership, information to be provided to committee members, the process for conducting committee meetings, and the expected outcomes to be achieved by review committees. . . . Review committees are tasked with duties such as reviewing existing curriculum, reviewing possible materials/resources to support the curriculum, and writing course and program curriculum. . . . 7 "From a practical standpoint," Steinhilber explained, the Board "acknowledg[ed] that we have developed a handbook, and that we adjust the processes we feel [are] appropriate. We also determine, you know, when that occurs, for which courses, what timelines, and we make recommendations then." But overall, he testified, the "process that we follow is that we set up a committee that reviews present curriculum, makes modifications, looks for materials, educational materials, that support that. We bring forward our recommendations to our Board, they review it, they determine what other changes they may want, and then they do Board approve [sic] that final product." 8 The relevant portions of the Handbook as they appear in the record are attached to this opinion as Appendix B. 5 No. [Ultimately,] the curriculum recommendations presented to the Board of Education for approval. 2015AP231 are Indeed, the Handbook provides that the first step when beginning a curriculum review cycle is to "[e]stablish a committee for program review." The Handbook further provides that review committees are to be composed of at least 17 individuals: ACI Director/Coordinator; Administrators from High School (1), Middle School (1) and Elementary School (3); Teachers – High School Curriculum Support Specialists (3), Middle School Curriculum Support Specialists (4), and Elementary School (3); Special Education representative; and as pertinent TAG, Title I and ELL. The ACI Department is supposed to select the members of the review committee by soliciting and reviewing applications from interested persons and sending the selected members "letters of acceptance with information regarding [the] first meeting." ¶7 After authorizes the a review committee committee to including "identify[ing] Ultimately, the "committee is perform a formed, number possible makes the the of Handbook functions, materials/resources." selection" materials or resources to recommend to the Board. of which The process culminates in presenting these recommendations to the Board for its approval. responses, The provided Board the and following CAMRC, summary in of their the discovery duties and functions assigned by the Handbook to be performed by review committees: It is not until a review committee has: (1) identified texts/materials costs; (2) revised curriculum with broad representation throughout the District; (3) identified essential learning objectives; (4) identified how standards will be addressed within a 6 No. 2015AP231 course; (5) identified/developed district-wide assessments to benchmark major standards; (6) provided curriculum to department, administrators, and ACI Department for feedback; (7) made needed adjustments; (8) suggested implementation strategies for the following school year; and (9) curriculum documents [are] reviewed by the content steering committee, that the curriculum recommendations are presented to the Board of Education for approval. All of these provisions in the Handbook demonstrate that, as the Board and CAMRC put it in their discovery responses, the "Handbook provides the basis of authority for review committees, such as CAMRC," to exist. B. ¶8 Krueger's Request and the Formation of CAMRC In July of 2011, Krueger asked the District to create an alternative Communications Arts 1 course that would use a different reading list, consisting of materials at a ninth grade reading level with no profanities, obscenities, or sexualized content. Arts At the time of Krueger's request, the Communications course curriculum had not gone through the review-committee process in approximately eight years. of the standard six-year cycle, the Handbook's In light Communications Arts curriculum was approximately two years overdue for a review. ¶9 they District officials met with Krueger and told him that were planning to begin the review process for Communications Arts in grades 7 through 12 in about a year and a half. They hoped that the new book list that would come out of the upcoming review process would meet Krueger's request, and a new course would not be necessary. with the long timeline, and District 7 Krueger was dissatisfied officials reconsidered. No. 2015AP231 They decided to go ahead and begin the review-committee process authorized in the Handbook, but only as to the book list for the Communications Arts 1 course. anyway, in light of the The book list needed updating new Common Core standards. As Steinhilber explained in his deposition, "we talked internally after that meeting" with Krueger and "determined that, well, knowing what we know about common core and needing those nonfiction materials, that we could adjust and do a modified version now knowing that we would go through a full curriculum process in the future." ¶10 Steinhilber worked with Nanette Bunnow, the District's Director of Humanities, to form CAMRC for this purpose. Bunnow testified in her deposition that, when forming CAMRC, "We used the process that was in place Handbook in a modified process." through [Rule] 361.1 in the Although Krueger's request was the impetus for forming CAMRC, it was undisputed that CAMRC was formed as a review committee pursuant to a modified version of the Handbook process.9 According to Bunnow, the process was modified in that "we only looked at the book list" rather than reviewing and rewriting the full curriculum, "because the concern that was brought forth was related to the materials. were not in a full curriculum cycle." 9 Nonetheless, Bunnow said, For example, as Steinhilber testified in his deposition: Q: CAMRC was a Review Committee operating under the ACI Handbook. You agree with that, right? A: I do. 8 We No. "Superintendent Allinger was interested in us doing 2015AP231 a full review [of the materials] because they hadn't been reviewed for eight years prior." The purpose of following the Handbook process for review committees, Bunnow explained, is "to make sure that we're all following a similar process no matter which curriculum [is being reviewed]." When asked to confirm that CAMRC derived its authority and functions from Rule 361 and the Handbook (and not from anywhere else), Bunnow agreed.10 ¶11 In forming CAMRC, Steinhilber and Bunnow "sought members the same way as we have in the past" when forming other review committees pursuant to the Handbook. "In our handbook," Bunnow testified, "we have a process where we advertise or have applications that go out and say that we are currently seeking teachers . . . that are stakeholders in the curriculum, either teach it, or have taught it, or have some knowledge related to the intent of solicitations, the 17 committee." people membership on CAMRC. came As forward a and result were of Bunnow's selected for The 17 members included eleven teachers, three Communications Arts Curriculum Support Specialists, one 10 As Bunnow put it, "[Rule] 361.1 and the ACI Handbook is the process that we did follow because Superintendent Allinger asked us to address the parent concerns." This is consistent with the Board's and CAMRC's discovery responses, which stated that "CAMRC was created pursuant to a modified 6-year curriculum cycle, a process which is enumerated in the ACI Handbook." The Board and CAMRC further explained that "CAMRC's purpose and tasks are clearly enumerated by the ACI Department, and ACI Department policy guided CAMRC through the modified curriculum process, as dictated by the ACI Department." Further, "CAMRC's membership was determined as set forth in the ACI Handbook." 9 No. 2015AP231 Library Media Specialist, and one high school principal. Bunnow herself served as chair of the committee. C. ¶12 The Functions and Operation of CAMRC CAMRC held its first meeting on Monday, October 3, 2011, and the full committee met a total of eight times, always on a Monday at 3:45 p.m. in the same location. Although CAMRC did not revise the entire curriculum for Communications Arts, CAMRC performed many of the other functions that the Handbook assigns to review committees. It identified a list of 93 potential books for the course, it reviewed them in light of course standards, it put a proposed list out for public input, and it voted on which books to include. CAMRC arrived at a final list of two dozen books to recommend to the Board. All of these steps were taken in accord with duties assigned to review committees by the Handbook. ¶13 At that point in the process, Bunnow testified, "[w]e finished up the process as designed. consideration to the Board." We took it as an item for The book list was presented to the Board's Programs and Services Committee, which voted to approve the list and bring it before the full Board. voted to approve the list on April 23, 2012. in her testimony that this "process was The full Board Bunnow confirmed authorized through [Rule] 361.1 and the ACI Handbook." ¶14 The Board, too, understood CAMRC to be following the Handbook process for review committees. Shortly after CAMRC was formed, brought Bunnow and Steinhilber had an "item of information" before the Board explaining that they had created 10 No. CAMRC under a modified version of the 2015AP231 Handbook's review- committee process to review the book list for Communications Arts 1. The Board had an opportunity to ask questions or to request a vote if it did not approve of the modifications to the review-committee process for CAMRC. Diane Barkmeier, a member of the Board, testified that her understanding was that CAMRC was "part of the curriculum and materials review process." Recalling the Board's approval of CAMRC's recommendations for the Communications Arts 1 book list, Barkmeier testified: Q: So — But what the Board, in essence, sets up here is procedures under the rule and under the handbook that review committees like CAMRC are supposed to follow as they formulate the recommendations to the Board, correct? A: Correct. Q: And then CAMRC comes to the full Board on April 23, 2012, to see if you'll adopt the recommendations at the suggestion of the committee, right? A: Correct. Q: And you voted to adopt the recommendations of CAMRC as the new educational materials for the district, right? A: We did . . . . Q: And all of that process is the process set forth in rules 361 or 361.1 and the ACI Handbook, right? A: Right. ¶15 In process . . . short, (including As a Board. every school official the Board, the involved in Superintendent, the and Steinhilber and Bunnow) understood CAMRC to have been extant 11 No. pursuant to the approved by the delegated authority Board, functions of of for Rule the 361 and purpose reviewing the 2015AP231 Handbook as of performing the curriculum materials and presenting them for Board approval. D. ¶16 Although it Procedural History was Krueger's request that spurred District officials to form CAMRC pursuant to a modified version of the Handbook process to review the Communications Arts 1 book list, the District meetings. He did asked to not permit attend, Krueger but the to attend District CAMRC denied his request and informed him that CAMRC meetings were not open to the public. The District took the position that the open meetings law did not apply to CAMRC. ¶17 On July 29, 2013, Krueger filed a complaint in Outagamie County circuit court, alleging violations of the open meetings law.11 The Board and CAMRC moved for summary judgment, and the circuit court granted their motion. 11 A person may not sue to enforce the open meetings law unless the person has first filed a verified complaint with the district attorney. See Journal Times v. City of Racine Bd. of Police and Fire Comm'rs, 2015 WI 56, ¶¶51-52, 362 Wis. 2d 577, 866 N.W.2d 563 (refusing to address an open meetings claim where the procedures for filing suit under the open meetings law were not followed). Only "[i]f the district attorney refuses or otherwise fails to commence an action to enforce this subchapter within 20 days after receiving a verified complaint" may the person "bring an action . . . on his or her relation in the name, and on behalf, of the state." Wis. Stat. § 19.97(4). Here, it is not disputed that Krueger properly filed a verified complaint with the Outagamie County district attorney at least 20 days before commencing this action in the name of the State. 12 No. ¶18 2015AP231 Krueger appealed, and the court of appeals affirmed. The court of appeals considered it dispositive that CAMRC was created by District officials in response to Krueger's request, rather than by the Board directly. op., ¶¶18-21. 361 did not Krueger, unpublished slip The court of appeals relied on the fact that Rule expressly create CAMRC and that nothing in Handbook mandated that CAMRC, specifically, be created. id., ¶7. the See The court of appeals viewed CAMRC as an ad hoc group of government employees rather than as a governmental body that was subject to the open meetings law. ¶19 Krueger petitioned this court for review, which we granted on October 11, 2016. II. ¶20 properly STANDARD OF REVIEW At issue in this case is whether the lower courts interpreted and applied the open meetings granting summary judgment to the Board and CAMRC. law in This is a question of statutory interpretation for our independent review. Journal Times v. City of Racine Bd. of Police and Fire Comm'rs, 2015 WI circuit 56, ¶42, court's 362 ruling Wis. 2d 577, on motions 866 N.W.2d 563. for declaratory "When a judgment depends on questions of law, we review the ruling de novo." Gister v. Am. Family Mut. Ins., 2012 WI 86, ¶8, 342 Wis. 2d 496, 818 N.W.2d 880. We review questions of law "independently of the circuit court and court of appeals but benefiting from their analyses." State v. Popenhagen, 2008 Wis. 2d 601, 749 N.W.2d 611. III. DISCUSSION 13 WI 55, ¶32, 309 No. A. ¶21 "the 2015AP231 The Definition of a "Governmental Body" Wisconsin's open meetings law begins by declaring that public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct § 19.81(1). of Toward governmental that end, the business." Wis. Stat. law that every requires meeting of a "governmental body" be preceded by public notice and kept open to the public, except where a statutory exception authorizes the body to meet in closed session. See generally Wis. Stat. §§ 19.81-19.85. ¶22 Our focus today is on the threshold question of when the open meetings law applies. An entity is subject to the open meetings law if it is a "governmental body" as defined in Wis. Stat. § 19.82(1). The statute provides, in relevant part, that "'[g]overnmental body' means a state or local agency, board, commission, corporate committee, and politic council, created department by or public constitution, body statute, ordinance, rule or order . . . or a formally constituted subunit of any of the foregoing . . . ." § 19.82(1).12 12 The rest of the definition, which we need not address in this case, provides that "governmental body" also includes "a governmental or quasi-governmental corporation except for the Bradley center sports and entertainment corporation; a local exposition district under subch. II of ch. 229; [or] a long-term care district under s. 46.2895." Wis. Stat. § 19.82(1). It also "excludes any such body or committee or subunit of such body which is formed for or meeting for the purpose of collective bargaining under subch. I, IV, or V of ch. 111." Id. (continued) 14 No. ¶23 This definition imposes certain 2015AP231 requirements, including the requirement that the entity must take one of seven forms: a "state or local agency, board, commission, committee, council, department or public body corporate and politic." Stat. § 19.82(1). Wis. The adjectives "state or local" modify each item on this list,13 indicating that the entity must be a part of either state or local government. The entity must also be "created by constitution, statute, ordinance, rule or order." Id. Taken together, these provisions define a "governmental body" not by the purpose behind its formation or by the subject matter of its meetings, but simply by two criteria: (1) the form it takes and (2) the source of its existence in a constitution, statute, ordinance, rule, or order. ¶24 First, a governmental body must take the form of a "state or local agency, board, commission, committee, council, department or public body corporate and politic." Wis. Stat. We also note that some entities that fit the statutory definition nevertheless may be exempt from the open meetings law for constitutional reasons. See State ex rel. Lynch v. Dancey, 71 Wis. 2d 287, 295-96, 238 N.W.2d 81 (1976) (holding that the supreme court's superintending authority over the judicial system preempted the application of the open meetings law to a body created by and under the authority of the court). 13 "In the absence of some other indication, the modifier reaches the entire enumeration." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012) (citing Ward Gen. Ins. Servs. v. Employers Fire Ins., 7 Cal. Rptr. 3d 844, 849 (Ct. App. 2003) ("Most readers expect the first adjective in a series of nouns or phrases to modify each noun or phrase in the following series unless another adjective appears.")). 15 No. § 19.82(1). 2015AP231 We gain additional insight into what this requires from other parts of the open meetings law. In particular, we note that a "meeting" of a governmental body is defined as "the convening of members of a governmental body for the purpose of exercising the responsibilities, authority, delegated to or vested in the body." power § 19.82(2). or duties This implies that a governmental body must have a defined membership, because without clarity as to who is and who is not a member, it could be impossible to determine when a sufficient number of members is assembled to constitute a "meeting" of the body. See State ex rel. Newspapers, Inc. v. Showers, 135 Wis. 2d 77, 102, 398 N.W.2d 154 (1987) (holding that a meeting of a governmental body does not occur unless "the number of members present [is] sufficient to determine the parent body's course of action"). Further, the statutory definition of "meeting" states that particular responsibilities, authority, power or duties must be delegated to or vested in the body, as distinct from the members individually. Wis. Stat. § 19.82(2); see State ex rel. Lynch v. Conta, 71 Wis. 2d 662, 681, 239 N.W.2d 313 (1976) (noting that a necessary characteristic of a governmental body is that "collective power" has been conferred upon it). ¶25 Second, the governmental body must be constitution, statute, ordinance, rule or order." § 19.82(1). to "cause Heritage "created by Wis. Stat. In the general sense of the word, to "create" means to exist; Dictionary bring 438 (3d into ed. being." 1992). Create, In light American of this definition, there must be a constitutional provision, statute, 16 No. 2015AP231 ordinance, rule, or order that caused a governmental body to exist where none existed before. In order to cause a body to exist, the relevant directive must confer upon it the collective "responsibilities, necessary to a meetings law. authority, governmental power body's or duties" existence that under are the open See 78 Wis. Op. Att'y Gen. 67, 69 (1989) (OAG 13- 89) ("The board would, therefore, be creating a committee by order whenever it authorizes the committee and assigns the duties and functions of the committee.").14 ¶26 For these reasons, the creation of a governmental body is not triggered merely by "any deliberate meetings involving governmental business between two or more officials." 135 Wis. 2d at government 98. Loosely organized, ad hoc gatherings of employees, governmental bodies. Showers, without more, do not constitute See 57 Wis. Op. Atty. Gen. 213, 216 (1968) (explaining that "meetings between the [] head of a department and . . . the entire staff of a department" were not covered by the former version of the open meetings law "because the staff does not constitute a body"). Rather, an entity must exist that 14 "The opinions of the Attorney General are not binding on the courts but may be given persuasive effect." Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65, ¶41, 341 Wis. 2d 607, 815 N.W.2d 367. Opinions of the Attorney General interpreting the public records and open meetings laws have "special significance . . . inasmuch as the legislature has specifically authorized the Attorney General to advise any person about the applicability of the Law." Id.; see Wis. Stat. § 19.98 ("Any person may request advice from the attorney general as to the applicability of this subchapter under any circumstances.") 17 No. 2015AP231 has the power to take collective action that the members could not take individually. See id. at 218 (concluding that the faculty of a state university was a body covered by the former version of the open meetings law, in part because, under the "faculty handbook, constitution and bylaws, . . . the structure of that faculty body does indeed provide for the taking of formal actions, as a body, with regard to delegated policymaking and administrative functions.") As this court has succinctly put it, "the question of whether a particular group of members of the government actually compose a governmental body is answered affirmatively only if there is a 'constitution, statute, ordinance, rule or order' conferring collective power and defining when it exists." B. ¶27 Conta, 71 Wis. 2d at 681. CAMRC Was a "Governmental Body" Applying these principles, we conclude that CAMRC was a committee created by rule under Wis. Stat. § 19.82(1). First, it qualifies as a "committee" for purposes of the open meetings law because it had a defined membership of 17 individuals upon whom was select conferred recommended approval. This the authority, educational authority to as a body, materials prepare to for review the formal and Board's curriculum recommendations for Board approval was not exercised by teachers and curriculum specialists on their own. The Board——acting through Rule 361 and the Handbook——provided that the members of review committees would exercise such authority collectively, as a body. Second, CAMRC was created by rule because District employees, when they formed CAMRC, relied on the authority to 18 No. 2015AP231 form review committees that was delegated to them by Rule 361 and the Handbook. 1. ¶28 CAMRC Was a "Committee" The parties appear to agree that CAMRC took the form of a "committee" for purposes of the open meetings law, and they focus their definition. dispute instead on the second part of the But we are not bound by the parties' concessions. See State v. Hunt, 2014 WI 102, ¶42 n.11, 360 Wis. 2d 576, 851 N.W.2d 434. We therefore briefly explain why we agree that CAMRC was a "committee" under Wis. Stat. § 19.82(1). ¶29 First, CAMRC was formed as a collective entity with a defined membership of 17 particular individuals. Although these individuals volunteered, and Bunnow suggested that more would have been welcome to join, the 17 nevertheless constituted a defined membership selected pursuant to the procedures set forth in the Handbook. Bunnow testified that all 17 members were present and voting at all CAMRC meetings, except for a final meeting which Bunnow characterized as merely a "subcommittee" meeting. ¶30 Nor gathering of was CAMRC employees simply meeting a loosely to facilitate their existing job duties. share organized, knowledge ad or hoc to As members of CAMRC, the 17 teachers, curriculum specialists, and others were meeting to fulfill Handbook a collective had assigned responsibility to review that Rule committees, 361 and the namely, the responsibility to review the book list for the Communications Arts 1 course and to recommend revisions to that book list to 19 No. the Board vested for formal review approval. committees such Board-approved The as 2015AP231 Handbook CAMRC with the power to "identify possible materials/resources" and ultimately "make[] the selection" of which recommended to the Board. materials or resources should be None of the teachers or curriculum specialists on CAMRC would have had this authority individually, but as members of CAMRC, they were empowered to vote on how CAMRC should exercise its collective authority as a body. ¶31 and That CAMRC called itself a "committee," kept minutes, recorded attendance dispositive, facts. and votes are informative, but not The essential elements of the form that an entity must take in order to be a governmental body are (1) a defined membership and (2) collective responsibilities, authority, power, and duties vested in the body as a whole, distinct from the individual members. CAMRC met both of these elements, and therefore we have no difficulty concluding that it was a "committee" under the definition in Wis. Stat. § 19.82(1). 2. ¶32 CAMRC Was Created By Rule We conclude that CAMRC was created by rule, because Rule 361 and the Handbook together constituted a "rule" under Wis. Stat. § 19.82(1) that authorized CAMRC to exist and conferred collective authority on it. ¶33 The open meetings law does not define the term "rule," so we look to its common usage. its common, ordinary, and "Statutory language is given accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." 20 State ex rel. Kalal No. 2015AP231 v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. The common definition of a "rule" includes "[a]n authoritative, prescribed direction for conduct, especially one of the regulations governing procedure in a legislative body." Rule, American Heritage Dictionary 1577 (3d ed. 1992).15 We see no indication in the open meetings law that "rule" should be given a peculiar technical meaning instead of being "liberally construed" along with the rest of the open meetings law. Wis. Stat. § 19.81(4). meetings law, we authoritative, See Therefore, for purposes of the open conclude prescribed that direction a "rule" for includes conduct, such as any the regulations governing procedure in a governmental body.16 ¶34 because Here, Rule 361 and the Handbook constituted a "rule" they procedures educational were for adopted District materials and by the employees presenting Board to to follow them to prescribe in the the reviewing Board for 15 "Resort to definitions, statutory or dictionary, is appropriate for the purpose of determining meaning that is plain on the face of the statute." State ex rel. Girouard v. Cir. Ct. for Jackson Cty., 155 Wis. 2d 148, 156, 454 N.W.2d 792 (1990). 16 Our recognition that the term "rule" in Wis. Stat. § 19.82(1) should be given a common, ordinary, and accepted meaning is not inconsistent with the Attorney General's interpretation of the term "order" in § 19.82(1), which also is derived from a common dictionary definition. See 78 Wis. Op. Att'y Gen. 67, 68-69 (1989) (OAG 13-89) (defining "order" to include "an authoritative mandate usu[ally] from a superior to a subordinate" and explaining that "[n]either the statute nor the dictionary definition require that the order be formal. All that is required to create a governmental body is a directive creating the body and assigning it duties.") 21 No. approval. of 2015AP231 Specifically, Rule 361 provided that "[t]he selection educational materials is delegated to the professionally trained and certified personnel employed by the school system" and that the Board-approved "Handbook delineates the processes leading to Board approval for curriculum revision, adoption of new courses, and implementation of curriculum materials." The processes set forth in the Handbook specifically provided for the creation of review committees for this purpose. As the Board and CAMRC stated in their discovery responses, "Review committees are tasked with duties such as reviewing existing curriculum, the reviewing curriculum, and possible writing materials/resources course and program to support curriculum." Ultimately, "the curriculum recommendations are presented to the Board of Education for approval." ¶35 Therefore, Rule 361 and the Handbook authorized CAMRC to exist and conferred on it the collective authority to review curriculum materials and make a recommendation to the Board. Steinhilber action and when Bunnow they simply formed Communications Arts 1. put CAMRC to the Handbook review the As Bunnow testified, process book list into for "[w]e used the process that was in place through [Rule 361] in the Handbook in a modified process." Although Bunnow and Steinhilber modified the Handbook process somewhat, in that CAMRC reviewed only the book list "because the concern that was brought forth was related to the materials," Steinhilber agreed that CAMRC was a review committee operating under 22 the Handbook, and Bunnow No. 2015AP231 similarly agreed that Rule 361 and the Handbook provided the sole authority for CAMRC to exist. ¶36 Underscoring the nature of the rule under which CAMRC was formed is the fact that, after forming CAMRC, Bunnow went before the Board to explain how the Handbook procedures had been modified to create CAMRC. The Board had a chance questions, and it permitted CAMRC to continue. to ask Barkmeier, a member of the Board, testified that she understood CAMRC to be "part of the curriculum and materials review process." Bunnow testified that CAMRC "finished up the process as designed" when it ultimately presented its recommended book list to the Board for approval, and this "process was authorized through [Rule 361] and the ACI Handbook." ¶37 Rule 361 Accordingly, and the we conclude Handbook, that CAMRC even because was created though it by was Steinhilber and Bunnow who put the Handbook process into action when they formed CAMRC, it was the Board's Rule 361 and the Board-approved Handbook that authorized review committees like CAMRC to authority be to created and review conferred curriculum on them the materials collective and make recommendations to the Board. ¶38 The court of appeals reached the opposite conclusion, reasoning that neither Rule 361 nor the Handbook "created" CAMRC because CAMRC "was not created based on any specific provision of either" Rule 361 or the Handbook. op., ¶7. Krueger, unpublished slip The court found it dispositive that CAMRC was formed not by a directive of the Board but by Steinhilber and Bunnow, 23 No. 2015AP231 acting "on their own initiative" and "borrow[ing] concepts from Board Rule 361.1 and the ACI Handbook." ¶39 Id., ¶¶7, 21. In light of the extensive testimony about how CAMRC was understood to be one of the review committees authorized by the Board through Rule 361 and the Handbook——albeit using a somewhat modified process——we do not find the court of appeals' distinction persuasive. opinion that a We agree with the Attorney General's committee is created whenever a governmental body, by rule, "authorizes the committee and assigns the duties and functions of the committee." (1989) (OAG 13-89). Board-approved See 78 Op. Att'y Gen. 67, 69 Here, it was the Board's Rule 361 and the Handbook——not a directive from Steinhilber or Bunnow——that provided the legal authority for CAMRC to exist and set forth CAMRC's duties and functions. Although the Handbook did not specifically constitute CAMRC by name, it authorized review committees like CAMRC to exist and to exercise Board's delegated authority over curriculum review. the It was that authority that Steinhilber and Bunnow relied on when they formed CAMRC to review the Communications Arts 1 book list. ¶40 For the same reason, the fact that CAMRC did not follow all Handbook procedures to the letter is not dispositive. For example, the Handbook provided for the members of a review committee to include five administrators (one each from a high school and a middle school and three from an elementary school). By contrast, CAMRC included only one high school administrator, and it otherwise consisted of teachers and curriculum support specialists, along with a library media specialist. 24 However, No. 2015AP231 Bunnow and Steinhilber testified that the Handbook process was adjustable depending on the purpose of the particular review committee, and the membership of review committees often varied. Here, CAMRC was tasked with reviewing the book list for a particular class and making recommendations to the Board, and if it served that goal to have a greater proportion of teachers on the committee, along with a library media specialist, Handbook did not prohibit such modifications. the In no way did the composition of CAMRC affect its authority to act as a review committee under Rule 361 and the Handbook. ¶41 Krueger also argues, in the alternative, that CAMRC was created by "order" of Steinhilber or Bunnow. The court of appeals held that this argument was forfeited because it first appeared in Krueger's reply brief. On appeal, Krueger renews this argument, but we need not resolve it because we hold that CAMRC was created by rule under Rule 361 and the Handbook. Krueger's arguments as to why CAMRC might alternatively have been created by "order" do nothing to disturb our conclusion. ¶42 Finally, committees like the Board CAMRC to and the CAMRC open argue meetings detrimental to the functioning of government. to apply the open meetings law as it is that subjecting law would be But our task is written. If the District "seeks change in the statutory provisions [of the open meetings law], legislature." however, it must Journal "presum[e] direct Times, that the 362 those concerns Wis. 2d 577, legislature chose to the ¶52. We, its terms carefully and precisely to express its meaning," Ball v. Dist. 25 No. 2015AP231 No. 4, Area Bd. of Vocational, Technical & Adult Educ., 117 Wis. 2d 529, 539, 345 N.W.2d 389 (1984), and we are not at liberty to exempt CAMRC from the definition of "governmental body" simply because government officials would find it convenient. "Mere government inconvenience is obviously no bar to the requirements of the [open meetings] law." IV. ¶43 the court Conta, 71 Wis. 2d at 678. CONCLUSION For all of these reasons, we reverse the decision of of appeals and hold that CAMRC was a "state or local . . . committee . . . created by . . . rule" and therefore met the definition meetings law. of "governmental body" See Wis. Stat. § 19.82(1). under the open Where a governmental entity adopts a rule authorizing the formation of committees and conferring on them the power to take collective action, such committees are "created by . . . rule" under § 19.82(1) and the open meetings law applies to them. Here, the Board's Rule 361 provided that the review of educational materials should be done according turn, to the authorized Board-approved the formation Handbook. of The committees Handbook, with a in defined membership and the power to review educational materials and make formal recommendations for Board approval. Because CAMRC was formed as one of these committees, pursuant to the authority delegated from the Board by Rule 361 and the Handbook, it was "created by . . . rule" and therefore was a "governmental body" under § 19.82(1). 26 No. By the Court.—The decision of the court of 2015AP231 appeals is reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion. 27 No. APPENDIX A 1 2015AP231 No. 2 2015AP231 No. 3 2015AP231 No. 4 2015AP231 No. 5 2015AP231 No. 6 2015AP231 No. 7 2015AP231 No. APPENDIX B 1 2015AP231 No. 2 2015AP231 No. 3 2015AP231 No. 4 2015AP231 No. ¶44 SHIRLEY S. ABRAHAMSON, J. (concurring). 2015AP231.ssa The instant case traverses the Open Meetings Law and public education. The Open Meetings Law1 reflects Wisconsin's deep commitment to open and transparent government.2 Education is a key constitutional function of Wisconsin government. ¶45 Wis. Const. Art. X. Our democratic system of government——as well as the well-being of each person in this state and the sound functioning of our economic system——depends on a well-educated population. equal "Wisconsin students have a fundamental right to an opportunity for a sound basic education. An equal opportunity for a sound basic education is one that will equip students for their roles as citizens and enable them to succeed economically and personally." Vincent v. Voight, 2000 WI 93, ¶3, 236 Wis. 2d 588, 614 N.W.2d 388. ¶46 Parental and public involvement in education is, in my opinion, indispensable, and is legislatively protected by the Open Meetings Law. It is not, however, in the parents' or public's interest to make every collaborative decision made by 1 See generally Wisconsin Statutes Chapter 19, Subchapter V entitled Open Meetings of Governmental Bodies, Wis. Stat. §§ 19.81-98. 2 State v. Beaver Dam Area Dev. Corp., 2008 WI 90, ¶2, 312 Wis. 2d 84, 752 N.W.2d 295. 1 No. 2015AP231.ssa educators subject to the strictures of the Open Meetings Law.3 The application of the Open Meetings Law to education (or any other government function) is not without limits. ¶47 The legislative declaration of policy in the Open Meetings Law states in full as follows: In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business. Wis. Stat. § 19.81(1) (emphasis added).4 ¶48 Indeed the Open Meetings Law conveys limits. The legislature intended the Law to be construed liberally but not so that it impedes the functioning of government. On the one hand, the legislature's declaration of policy explicitly states: The policy of the state is that the public have the fullest and most complete information regarding the affairs of government. On the other hand, the legislature's declaration of policy also proclaims a countervailing concern and limitation: The Open 3 "Even though Wisconsin courts have not specifically addressed this issue, the extensive federal case law in this area establishes that parents simply do not have a constitutional right to control each and every aspect of their children's education and oust the state's authority over that subject." Larson v. Burmaster, 2006 WI App 142, ¶39, 295 Wis. 2d 333, 720 N.W.2d 134. 4 See also Wis. Stat. § 19.31 (providing that the policy of the public records law is to ensure that the public has access to "the greatest possible information regarding the affairs of government and the official acts of those . . . who represent them.") (emphasis added). 2 No. 2015AP231.ssa Meetings Law prevails "as is compatible with the conduct of governmental business." ¶49 Both aspects of the legislative policy statement should guide this court's interpretation and application of the Open Meetings Law in the instant case. Government operations should be open and transparent to the fullest extent possible. But, the Open Meetings Law should not be interpreted to apply to every meeting between administrators and employees and others to discuss how to implement specific policies or programs or how to do their day-to-day jobs. These kinds of meetings take place routinely, and as the Department of Justice has advised: "They cannot be made subject to the open meetings law because to do so would make it impossible to carry out the day-to-day business of government."5 ¶50 To distinguish between these two kinds of meetings under the Open Meetings Law is the difficult issue presented. ¶51 The importance of this case to the public and to school officers and employees for the transparent and effective 5 Letter from Assistant Attorney General Mary Woolsey Schlaefer to Jim Pepelnjak of the Milwaukee Journal Sentinel Inc. (June 8, 1998). See also Wisconsin Department of Justice's Wisconsin Open Meetings Law Compliance Guide 7 (Nov. 2015) ("The definition of a 'governmental body' is only rarely satisfied when groups of a governmental unit's employees gather on a subject within the unit's jurisdiction."); Letter from Assistant Attorney General Thomas C. Bellavia to Joe Tylka (June 8, 2005) (the Open Meetings Law does not apply to "meetings of groups of government officials and employees that are not established pursuant to some such informal directive, but that simply meet together on an ad hoc basis in the interest of governmental efficiency . . . .)". 3 No. operations of a school system is evident from 2015AP231.ssa the numerous briefs the court has received from many stakeholders: • The parent (John Krueger) has submitted briefs; • The Appleton Area School District Board of Education and Communication Arts 1 Materials Review Committee have jointly submitted a brief; • The Wisconsin Department of Justice has submitted a non-party amicus brief;6 • The Wisconsin Wisconsin Freedom Newspaper of Information Association, and Council, the the Wisconsin Broadcasters Association have jointly submitted a nonparty amicus brief; and • The Wisconsin Counties Association, the League of Wisconsin Municipalities, the Wisconsin Association of School Business Officials, the Wisconsin Association of School Personnel Administrators, the Wisconsin Association of School Boards, the Wisconsin Council for Administrative Wisconsin School Association of Services, the Administrators, School District and Association the of Wisconsin Administrators have jointly submitted a non-party amicus brief. ¶52 All the briefs, including the Department of Justice's brief, agree that this court's guidance is needed to develop the 6 The Department of Justice's brief did not focus on the facts of the instant case. The Department of Justice did not support either John Krueger or the School Board regarding the application of the Open Meetings Law to the instant case. 4 No. definition They of agree provided by "governmental that the communications. best when it more body" clarity Department in of Open needed is the than Justice's formal 2015AP231.ssa Meetings is Law. currently and informal Clarity is needed because government functions has clearly defined and uniformly applicable standards. ¶53 The briefs are, however, far from agreement as to what the court's guidance should be, even when they agree on the bottom line, that is, even when they agree whether CAMRC is or is not a governmental body subject to the Open Meetings Law.7 (I shall refer to CAMRC as the Review Committee.) ¶54 I focus, as the majority opinion and briefs do, on the word "create" in Wis. Stat. § 19.82(1) as the significant word in the instant case in determining whether the Review Committee fits within the definition of "governmental body" in the Open Meetings Law. The definition of "governmental body" is important because the Open Meetings Law applies to every meeting of a governmental body. Wis. Stat. § 19.83(1). "Governmental body" is defined in § 19.82(1) as follows: (1) "Governmental body" means a state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order . . . . (Emphasis added.) ¶55 subject Whether the Review Committee is a governmental body to the Open Meetings Law 7 is a close call for me. "CAMRC" is used by the majority opinion. CAMRC refers to the Communication Arts 1 Materials Review Committee. 5 No. 2015AP231.ssa Indeed, at oral argument John Krueger's counsel often stated in response to questions from the court posing hypotheticals: "Line drawing is very difficult." ¶56 I am not persuaded by the parent's arguments that a rule or order created the Review Committee. The best that can be said for the parent's position is that the "creation" in the instant case may be hazy. ¶57 The Department of Justice's Wisconsin Open Meetings Law Compliance Guide (Nov. 2015) at 6 recommends that "[a]ny doubts as to the applicability of the open meetings law should be resolved in favor of complying with the law's requirements." I do not necessarily agree with this recommendation. to recognize the legislature's countervailing It fails interests transparency and effective government operations. of Furthermore, the parent in the instant case had access to the work of the Review Committee through his open records requests, and he had the opportunity to make his suggestions heard by the Review Committee. ¶58 Moreover, and significantly, an important issue at this stage of the instant case is not merely the label pinned on the Review majority Committee opinion governmental but declare body subject rather that to the the the next Review Open step should Committee Meetings Law. was the a The parent's brief does not request that the acts of the Review Committee be voided under Wis. Stat. § 19.97(3). ¶59 I do not join the majority reasons. 6 opinion for several No. ¶60 2015AP231.ssa First, the majority opinion gives short shrift to Wis. Stat. § 19.81(1), the legislative policy requiring transparent government "as is compatible with the conduct of governmental business." The majority opinion seems to read this aspect of the legislative policy statement out of the Open Meetings Law, or at the least gives it little or no weight in interpreting the Open Meetings Law. ¶61 Majority op., ¶42. Yet a court looks at a statement of legislative policy as an intrinsic guide to meaning. Schilling v. Crime Victim Rights Bd., 2005 WI 17, ¶14, 278 Wis. 2d 216, 692 N.W.2d 623; Wisconsin's Environmental Decade, Inc. v. P.S.C., 69 Wis. 2d 1, 18, 230 N.W.2d 243 (1975); Letter from Assistant Attorney General Mary Woolsey Schlaefer to Jim Pepelnjak of the Milwaukee Journal Sentinel Inc. (June 8, 1998); Wisconsin Bill Drafting Manual 2017-2018, 7.02. ¶62 Second, I disagree with the majority opinion's conclusion at ¶33 that the word "rule" in Wis. Stat. § 19.82(1) should be given the dictionary definition that appears in the 1992 version of the American Heritage Dictionary. According to the majority opinion, the definition of "'rule' includes "an authoritative, prescribed direction for conduct, especially one 7 No. 2015AP231.ssa of the regulations governing procedure in a legislative body." Majority op., ¶33.8 ¶63 The "governmental statute, body," Wis. inter Stat. alia, as § 19.82(1), a "committee" defines that is "created by constitution, statute, ordinance, rule or order."9 Each of the words in the list beginning with the word "constitution" is used in common parlance, but each is used in the statute in a technical, legal sense. Each describes written, formal document enacted as required by law. a Why would the legislature switch in midsentence and not use the words "rule or order" in their technical, legal sense? Applying a generally accepted canon of statutory interpretation, I conclude that the legislature did not make a switch in midsentence. 8 A single word can have multiple definitions. The American Heritage Dictionary provides well over a dozen formulations of a definition for the word "rule." Likewise, the online version of the Merriam-Webster Dictionary defines "rule" in over a dozen ways. By choosing one definition from the American Heritage Dictionary without explaining why that definition applies, the majority opinion overlooks a court's directive in statutory interpretation: "Many words have multiple dictionary definitions; the applicable definition depends upon the context in which the word is used." State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶49, 271 Wis. 2d 633, 681 N.W.2d 110. See also Noffke ex rel. Swenson v. Bakke, 2009 WI 10, ¶60, 315 Wis. 2d 350, 383, 760 N.W.2d 156 (Abrahamson, C.J., concurring) ("Dictionaries usually furnish more than one meaning to a word, and a court has to be careful not to select a friendly definition it likes from the many offered without explaining its choice."). 9 The Open Meetings Law applies to a "governmental body," which is defined as "a state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order . . . ." Wis. Stat. § 19.82(1) (emphasis added). 8 No. ¶64 2015AP231.ssa The applicable canon of statutory interpretation is known by the Latin phrase "noscitur a sociis." Translated, the phrase means "it is known by its associates." In other words, the meaning of each word in the string of words of "constitution, statute, ordinance, rule or order" may be known from the words accompanying it.10 ¶65 The words "constitution," "statute," and "ordinance" describe formal, written documents adopted in accordance with requirements set forth in law. ¶66 The Wisconsin Department of Justice's Wisconsin Open Meetings Law Compliance Guide (Nov. 2015) at 2 corroborates that the words "constitution," "statute," and "ordinance" refer to legal documents under Wisconsin law, stating: The words "constitution," "statute," and "ordinance," as used in the definition of "governmental body" refer to the constitution and statutes of the State of Wisconsin and to ordinances promulgated by a political subdivision of the state.11 10 Although rules of interpretation serve the court, they are not absolute rulers of a court's interpretation. Boardman v. State, 203 Wis. 173, 176, 233 N.W. 556 (1930) (quoting Benson v. Chicago, St. P., M. & O. Ry. Co., 77 N.W. 798, 799 (Minn. 1899)). 11 The word "ordinance" appears more than 300 times in the Wisconsin Statutes. See, e.g., Wis. Stat. § 61.50 relating to ordinances by villages, and § 62.11 relating to ordinances by cities. The court defined "ordinances" as follows in Wisconsin Carry, Inc. v. City of Madison, 2017 WI 19, ¶25, 373 Wis. 2d 543, 892 N.W.2d 233: "[O]rdinances are municipal legislative devices, formally enacted, that address general subjects in a permanent fashion." 9 No. ¶67 2015AP231.ssa The words "rule" and "order" can be interpreted in a number of ways. Indeed the briefs offer several alternatives.12 12 Some briefs treat "rule or order" as one-and-the same; other briefs address "order" more specifically. The brief of the Department of Justice addresses only the word "order." The parent's brief explains that a "rule or order" may include "any directive, formal or informal, creating a body and assigning it duties" that "come[s] from governmental bodies, presiding officers of governmental bodies, or certain government officials, such as county executives, mayors, or heads of a state or local agency, department or division" (that is, "a hierarchical top-down creation of a group"), but only if "the possibility exists that the real decision-making will happen at the committee meetings and be rubber-stamped by the governing board." Plaintiff-Appellant-Petitioner's Brief and Appendix at 19-20 (internal citations and quotations omitted). The School Board's brief seems to agree that a "rule" may be formal or informal, but asserts that the creation must be done through an "explicit delegation of authority." DefendantRespondents' Brief at 19. The brief of the Wisconsin Freedom of Information Council explains that the "[t]he terms 'rule or order' as used in Section 19.82 have been broadly construed to include any directive, formal or informal, that creates a body and assigns it duties." The Council clarifies that this definition means that "the committee need only have come into being through the agency, participation, or authority of the [rule or order]." Non-Party Brief and Appendix of the Wisconsin Freedom of Information Council et al. at 5, 8. The Wisconsin Counties Association argues in its brief that the Attorney General's interpretation of "rule or order" that includes informal directives is misplaced and that "the Court should hold that a 'rule or order' is a directive adopted or issued by an existing governmental body in the normal manner by which it does its work. In all [sic] most, if not all, situations this will be adoption by a majority vote. And, such formal directives will be recorded in the minutes of the governmental body." Non-party Brief of Wisconsin Counties Association et al. at 11-12. 10 No. ¶68 2015AP231.ssa It seems most reasonable to me to conclude that the legislature would use the words in this string uniformly in their legal meaning in Wisconsin law.13 ¶69 The majority opinion disagrees. The majority opinion's analysis of the word "rule," as well as its refusal to consider the legislative policy section (see ¶¶47-48, 60-61, supra) in interpreting the Open Meetings Law, is at odds with the analysis this same majority of justices recently set forth in Wisconsin Carry, Inc. v. City of Madison, 2017 WI 19, ¶¶1920, 373 Wis. 2d 543, 892 N.W.2d 233. majority stated: choice. . . . We "We find are not [plain] In Wisconsin Carry, the merely meaning in arbiters the of word statute's text, context, and structure . . . ." ¶70 I recognize that the Department of Justice has, without reference to the canon of noscitur a sociis or any other authority or rationale, interpreted the phrase "rule or order" in accordance with common and approved usage and as including "any directive, assigning it formal duties."14 or informal, creating Unfortunately, the a body and Department's 13 The word "rule" for purposes of state government is defined in Wis. Stat. § 227.01(13) (including 72 exceptions). I could find no definition of "rule" regarding local governmental entities, but the word "rule" is used in the statutes too many times to count relating to rulemaking by local governmental entities. 14 Wisconsin Department of Justice's Wisconsin Open Meetings Law Compliance Guide (Nov. 2015) at 2. See also Letter from Assistant Attorney General Thomas C. Bellavia to Joe Tylka (June 8, 2005). (continued) 11 No. 2015AP231.ssa interpretation of the word "rule" does not, as is demonstrated in the briefs, provide sufficient clarity and guidance. ¶71 Why would the legislature require anything less for a "rule or order" than a formal written document promulgated by an appropriate entity? The Department of Justice has an answer that should be considered but it is not totally satisfactory. The Department of Justice is concerned that requiring a formal document would allow an entity to evade the Open Meetings Law by adopting informal processes. The Department of Justice explains: If a formal order were required, the open meetings law might be evaded by the creation of "informal" bodies. Therefore, the interpretation that the open meetings law does not require that the order be formal is consistent with the statement by the Florida Supreme Court that the sunshine law "should be construed so as to frustrate all evasive devices." 78 Wis. Op. Atty. Gen. 67, 69 (quoting Wood v. Marston, 442 So. 2d 934, 940 (Fla. 1983)). ¶72 I strongly agree with the Department of Justice that the consequences of an interpretation matter, and a consequence like evasion of the Open Meetings Law should be considered and No entity on the list of state or local bodies created by resolution, rule, or order in the Wisconsin Department of Justice's Wisconsin Open Meetings Law Compliance Guide (Nov. 2015) at 3 seems to me to resemble the Review Committee in the instant case. 12 No. prevented.15 But in an attempt to prevent 2015AP231.ssa evasion, the Department of Justice's definition of "rule or order" raises two basic, serious problems: The Department's definition is not tethered to the text and context in which the words are used in the Open Meetings Law and does not provide sufficient clarity or guidance. ¶73 "rule or There should be other ways to prevent evasion. When I look at the text and context in which the words order" are used, I conclude, in contrast to the majority opinion, that the word "rule" is not defined by the 1992 version of the American Heritage Dictionary. The words "rule or order" derive their meaning from Wisconsin law, not the dictionary. ¶74 The third reason I disagree with the majority opinion is that it concludes, majority op., ¶¶33-35, that Rule 361 and the Handbook, taken together, created the Review Committee. I agree with the court of appeals that the Review Committee was not created by Rule 361, the Handbook, or any other rule.16 15 Consequences are an important consideration in interpreting a statute. See, e.g., Wisconsin Carry, 373 Wis. 2d 543, ¶20 (if an interpretation results in "unreasonable or absurd" consequences, that interpretation may be rejected); Anderson v. Aul, 2015 WI 19, ¶114, 361 Wis. 2d 63, 862 N.W.2d 304 (Ziegler, J., concurring) (asserting that the plain meaning analysis includes consideration of consequences of alternative interpretations to avoid unreasonable results). 16 "Krueger is unable to direct us to any provision of either authority under which the Review Committee was created." State ex rel. Krueger v. Appleton Area Sch. Dist. Bd. of Ed., No. 2015AP231, unpublished slip op. at ¶18 (Wis. Ct. App. June 28, 2016). 13 No. ¶75 2015AP231.ssa Here is how the Review Committee came into existence. A parent requested Superintendent Allinger to create a new and alternative course. Superintendent District's Assessment, Curriculum Allinger and Department to handle the parent's request. then told Instruction the (ACI) The ACI Department head, Kevin Steinhilber, and his immediate subordinate, Nanette Bunnow, created the Review Committee to address the parent's request. ¶76 Steinhilber and Bunnow decided that the Review Committee they created would consider the option of creating an alternative course in response to the parent's request, conduct an evaluation of the curriculum materials for the Communication Arts I course to see if different materials could resolve the parent's concerns, and review the course materials because a Communication Arts I course materials review was overdue and would allow Steinhilber and Bunnow to consider the impact that the impending Common Core requirements would have on the course's materials.17 ¶77 Steinhilber and Bunnow adapted some of the procedures set forth in Rule 361 and the Handbook for the creation and operation of this Review Committee. ¶78 The Review Committee was a unique entity created to respond to a unique concern. ¶79 The rule on which the majority opinion relies to establish creation of the Review Committee is Rule 361 adopted 17 See Appleton Area School District Board of Education, Meeting Minutes (Apr. 23, 2012). 14 No. 2015AP231.ssa by the Appleton Area School District Board of Education. The full text of this Rule and an excerpt from the Handbook are in the record and fortunately are attached to the majority opinion. Examining these documents, a reader cannot find a reference to the Review Committee at issue in the instant case in Rule 361 or in the Appleton Area School District Assessment, Curriculum and Instruction Handbook. ¶80 Rule responsibility curriculum 361 for delegates all material the selection and Board's materials, educational School that revision, personnel, namely the District's ACI Department. to legal is, for District Rule 361 does not expressly create a committee that handles the selection and revision of educational materials. ¶81 Appleton Pursuant to Rule 361, the ACI Department developed the Area Instruction School Handbook materials selection. District to guide Assessment, its curriculum Curriculum revision & and The School Board approved the Handbook. The Handbook delegates authority to the ACI Department to create a committee that handles full curriculum reviews. ¶82 The Review Committee in the instant case was not a full curriculum review committee and did not even review the full curriculum for this one course. for this one course. It reviewed the booklist In doing its work, the Review Committee used some curriculum selection and review procedures that it adapted from the Handbook. 15 No. ¶83 2015AP231.ssa In addition to governing full curriculum review, Rule 361 also sets forth a process for handling parental objections to educational materials. ¶84 Under Rule 361, a process is set up to parent's complaint about educational materials. address a The complaint would be given to a school official or staff member who is required to try to resolve the issue informally. If informal resolution Educational is ineffective, Rule 361 creates an Materials Review Committee to address the parental concern and sets forth Educational a procedure Materials for Review the Committee Committee's to follow. The recommendation is subject to the Superintendent's review before the School Board ultimately decides whether or not to adopt the recommendation. ¶85 I agree with the court of appeals that the Review Committee at issue in the instant case did not constitute a Rule 361 Educational Materials Review Committee and was not a committee created by Rule 361 or the Handbook to conduct a full curriculum review.18 18 "[H]ere, neither Board Rule 361.1 procedure was applicable, because Krueger requested creation of an alternate course altogether since, in his opinion, 'to review the existing reading list would have been a waste of time.' There was no established district procedure for requesting an alternative course or responding to such a request. . . . [Steinhilber's and Bunnow's creation of the Review Committee on their own initiative] is similar to the second set of facts addressed in the Tylka letter, at 4, wherein the attorney general's office opined the open-meetings law would not apply." State ex rel. Krueger v. Appleton Area Sch. Dist. Bd. of Ed., No. 2015AP231, unpublished slip op. ¶¶20-21 (Wis. Ct. App. June 28, 2016). 16 No. ¶86 2015AP231.ssa In sum, read carefully and liberally, neither Rule 361 nor the Handbook created the Review Committee at issue in the instant case. up but The majority opinion seems to agree with my wrap concludes that this omission in Rule 361 is not meaningful, stating: Although [Rule 361 and] the Handbook did not specifically constitute [the Review Committee] by name, [they] authorized review committees . . . to exist and to exercise the Board's delegated authority over curriculum review. Majority op., ¶39.19 ¶87 not Fourth, the majority opinion, ¶41, states that it need address the issue of whether the Review Committee was created by an order because it holds that it was created by rule. The meaning of the word "order" was addressed by several of the briefs in this court.20 ¶88 The parent's brief submits the following regarding government officials creating a governmental body by order : 19 The majority opinion relies on depositions to interpret Rule 361. Is not the interpretation of Rule 361 a question of law for this court, not for the deponents? The parties' briefs in this court argue whether the parent's brief (and therefore the majority opinion) relies on a proper interpretation of the deponents' responses. This is a summary judgment case and the circuit court concluded that no material facts are in dispute. I note that the majority opinion states repeatedly that the Review Committee was "authorized" by Rule 361, rather than using the statutory language that the Rule "created" the Committee. 20 The court of appeals did not address this issue because the parent did not raise it in the circuit court or in his initial appellate brief. State ex rel. John Krueger v. Appleton Area Sch. Dist. Bd. of Ed., No. 2015AP231, unpublished slip op. ¶¶22-26 (Wis. Ct. App. June 28, 2016). See majority op., ¶41. 17 No. 2015AP231.ssa As a practical and legal matter, governing bodies of public entities . . . cannot make every decision; they must delegate their authority downward. In order to exercise those delegated powers, government officials may choose to create a committee to gather information, make a recommendation, or even make a decision. When an official does so, such committees should be subject to the Open Meetings Law . . . .21 ¶89 The School Board's brief agrees that a government official can set up committees as governmental bodies included within the Open Meetings law. The Board's position is that the official must act within the scope of properly delegated or vested authority. The Board's view is as follows: [I]ndividual government officials, acting within the scope of properly delegated authority, may create a committee subject to Open Meetings Law by delegating authority to the committee which has been lawfully charged to the official by the governmental body, in this case the school board. . . . Those committees then, are to be treated as if they had been directly charged by the school board to carry out those functions. . . . The mere creation of a committee by administrative officials is not enough. The requisite conferral of power and authority is required. . . . While directives from lower level executive officials or employees may qualify, the directive must have been delegated or redelegated. It is not enough for a government official to simply create a group to address a governmental function. Rather, the governmental function must have been delegated or redelegated by the governmental body.22 ¶90 of In its non-party brief in this court, the Department Justice asks the court to describe the creation of a governmental body by order as follows: 21 Plaintiff-Appellant-Petitioner's Brief and Appendix at 43. 22 Defendant-Respondents' omitted). Brief 18 at 35-37 (citations No. 2015AP231.ssa A "governmental body" under Wis. Stat. § 19.82(1) can be created by an "order" following a directive from an existing governmental body or delegate that authorizes the creation of a body and assigns it duties. However, the definition of a "governmental body" is rarely satisfied when groups of a governmental unit's employees gather on a subject within the unit's jurisdiction.23 ¶91 The Department of Justice has also opined about an "order" by a government official creating a governmental body under the Open Meetings Law using somewhat different language, as follows: When an individual government official, acting within the scope of properly delegated authority, creates an advisory body, that body is treated as if it had been created directly by the governmental body with authority over that official.24 ¶92 The Wisconsin Freedom of Information Council argues in its brief that "order . . . must be broadly construed to include any directive, formal or informal, that creates a body and assigns it duties."25 ¶93 The brief of the Wisconsin Counties Association asks the court to hold that an official can create a governmental body subject to the [Open Meetings Law] only when the official is acting in the stead of the extant governmental body. There must be an actual, affirmative delegation of authority.26 23 Non-Party Brief and Appendix of the Wisconsin Department of Justice Attorney General Brad D. Schimel at 13. 24 Letter from Assistant Attorney General Thomas C. Bellavia to Joe Tylka (June 8, 2005). 25 Non-Party Brief and Appendix of the Wisconsin Freedom of Information Council et al. at 5. 26 Non-party Brief of Wisconsin Counties Association et al. at 15. 19 No. ¶94 2015AP231.ssa In light of these divergent views and the facts of the instant case, resolving the meaning of "order" is important. The majority opinion's discussion of an "order" might have helped provide clarity and guidance on this difficult question of the meaning of "order." ¶95 The fifth reason that I do not join the majority opinion is that its mandate is unclear. ¶96 The majority opinion clearly reverses the decision of the court of appeals. Majority op., ¶2. It clearly holds that the Review Committee met the definition of "governmental body" under the Open Majority op., ¶2. Meetings Law and was subject to its terms. And finally, the majority opinion remands the cause "to the circuit court for further proceedings consistent with this opinion."27 Nothing in the majority opinion tells the circuit court what further proceedings are to be held consistent with the opinion. ¶97 I agree with the parent's briefs on this topic. The parent's brief states that if this court reverses the decision of the Court of Appeals, this court would also conclude that the Open Meetings Law applied to the Review Committee.28 According to the parent, if the Open Meetings Law applied to the Review Committee, it is undisputed that the School Board did not comply with the Open Meetings Law. The parent's brief proposes that 27 Majority op., mandate line after ¶43. 28 Plaintiff-Appellant-Petitioner's Brief (John Krueger) at 54. 20 No. this court remand the matter to the circuit 2015AP231.ssa court with directions to determine costs and attorney fees and to enter judgment in favor of the parent.29 and believe that this is the I agree with this proposal proper interpretation of the majority opinion's remand. ¶98 Furthermore, it is important to acknowledge that the parent did not and does not request that the Review Committee's actions be voided as a remedy under Wis. Stat. § 19.97(3).30 ¶99 With regard to voiding any action taken at a meeting held in violation of the open meetings law, the Department of Justice has opined on this subject as follows: Under Wis. Stat. § 19.97(3) a court may void any action taken at a meeting held in violation of the open meetings law if the court finds that the interest in enforcing the law outweighs any interest in maintaining the validity of the action. In the present case, the Task Force's duties were simply to provide recommendations . . . . The only action that would be "voidable" would be the votes of the Task Force members adopting specific recommendations. Since these were only recommendations to the board and the board has undoubtedly accepted some and rejected others of those recommendations, it is unlikely that any court would void any action taken by the Task Force . . . . Letter from Assistant Attorney General Alan Lee to District Attorney Joseph F. Paulus, dated June 8, 2001. 29 Reply Brief (John 30 Reply Brief (John Plaintiff-Appellant-Petitioner's Krueger) at 14. Plaintiff-Appellant-Petitioner's Krueger) at 14, n.3. 21 No. ¶100 Because of the continuing need for 2015AP231.ssa clarity and guidance in the meaning of the phrase "created by rule or order" used in Wis. Stat. § 19.82(1), I suggest that school boards and school officials consider the adoption of formal rules or orders for the creation of governmental bodies by rule or order to be governed by the Open Meetings Law. their various functions whether they They should consider in are acting by rule or order, whether they are creating a governmental body subject to the Open Meetings Law, and whether they are clearly delineating the functions and responsibilities of the entity they create. Their designation is, of course, not dispositive for purposes of the Open Meetings Law but would assist them, school employees, and the public. ¶101 For the reasons set forth, I write separately. ¶102 I am authorized to state BRADLEY joins this concurring opinion. 22 that Justice ANN WALSH No. 1 2015AP231.ssa
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