Robert Zellner v. Daryl Herrick

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2009 WI 80 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2007AP2584 Robert Zellner, Plaintiff-Respondent, v. Daryl Herrick and Cedarburg School District, Defendants-Respondents, Heidi Morgan, Intervenor-Appellant. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: July 15, 2009 April 22, 2009 Circuit Ozaukee Paul V. Malloy ROGGENSACK, J., dissents (opinion filed). ATTORNEYS: For the intervenor-appellant there were briefs by Joseph Louis Olson, Aaron H. Kastens, and Michael Best & Friedrich LLP, Milwaukee, and oral argument by Joseph Louis Olson. For the plaintiff-respondent there was a brief by Jina L. Jonen and the Wisconsin Education Association Council, Madison, and oral argument by Jina L. Jonen. An amicus curiae brief was filed by Richard Thal, Heather L. Curnutt, and Lawton & Cates, S.C., Madison, on behalf of Wisconsin State Employees Union, AFSCME, Council 24 and Madison Teachers Inc. 2009 WI 80 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2007AP2584 (L.C. No. 2007CV26) STATE OF WISCONSIN : IN SUPREME COURT Robert Zellner, Plaintiff-Respondent, FILED v. Daryl Herrick and Cedarburg School District, Defendants-Respondents, JUL 15, 2009 David R. Schanker Clerk of Supreme Court Heidi Morgan, Intervenor-Appellant. APPEAL County, from Paul V. an order Malloy, of the Judge. Circuit Appeal Court for Ozaukee dismissed; order affirmed. ¶1 on N. PATRICK CROOKS, J. certification from the court This case is before the court of appeals pursuant to Wis. Stat. § 809.61 (2005-06).1 1 All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated. No. ¶2 This review arises from a request 2007AP2584 made under Wisconsin's Open Records Law, Wis. Stat. § 19.35, for the public release of a transcript of a closed arbitration hearing. The plaintiff, Robert Zellner (Zellner), the former teacher whose firing was at issue in the arbitration hearing, sued the Cedarburg School Board to prevent the release of the transcript. ¶3 The transcript's circuit court release. The issued person an order requesting enjoining the the transcript, Heidi Morgan (Morgan), filed notice to intervene, as Wis. Stat. § 19.356(4) authorizes, and appealed. The court of appeals denied Zellner's motion to dismiss on grounds that the appeal was not timely filed and subsequently certified two questions to this court: whether a transcript of a closed arbitration proceeding is a public record under Wisconsin's "public records" law, and, if so, whether all personal and medical information must be redacted before release. Zellner's contention that Morgan's appeal was untimely was not certified to this court. In this court's standard order accepting the certification, we stated that "the appeal is accepted for consideration of all issues raised before the court of appeals." See State v. Stoehr, 134 Wis. 2d 66, 70, 396 N.W.2d 177 (1986) ("When this court grants jurisdiction direct of the review upon appeal, which certification, includes all it acquires issues, not merely the issues certified or the issue for which the court accepts the certification." (citing (1983-84))). 2 Wis. Stat. § 808.05(2) No. ¶4 2007AP2584 For the reasons stated below, we now hold that the court of appeals erred when it found the appeal timely under Wis. Stat. § 19.356(8), which requires that an appeal of a decision relating to an open records request be filed in "the time period specified in s. 808.04(1m)." specified in that statute is 20 days. The time period Because the appeal was filed outside the 20-day period, there was no jurisdiction for the court of appeals to review. Since the appeal was not given rise to timely, we do not reach the certified questions. I. ¶5 The litigation appeal. on circumstances several BACKGROUND of this distinct case issues have not relevant to this The litigation from which this appeal arises is based on the following facts: ¶6 First, the Cedarburg School Board fired Zellner a teacher with the Cedarburg School District (the District) and a union official who superintendent on had the been grounds highly that critical Zellner's of the accessing pornography on a school computer constituted just cause for his termination. grievance The on termination was, Cedarburg Zellner's among Education behalf, other Association arguing things, that filed a Zellner's disproportionate to the offense and greatly out of line with the District's handling of similar infractions by other personnel. ¶7 The matter was sent to an arbitration panel, pursuant to a collective bargaining agreement. The arbitration panel issued a decision stating that the District "did not have just 3 No. 2007AP2584 cause to terminate [Zellner's] employment," and directing the District to reinstate Zellner, reduce his discipline to a written reprimand, and to make him whole for all lost wages and benefits. The District Following the refused and additional litigation ensued.2 ¶8 arbitration hearing, Morgan the transcript of the closed arbitration hearing. requested The District concluded that the transcript was a public record and informed Zellner that it planned to release it. ¶9 Zellner filed this action seeking to prevent release of the transcript or, in the alternative, seeking redaction of medical and familial during arbitration. information that Zellner had submitted On October 1, 2007, the Ozaukee Circuit Court, the Honorable Paul V. Malloy presiding, entered an order enjoining the District from releasing the transcript. The circuit court held that the transcript was a public record, but it then applied the second prong of the Linzmeyer test3 and held that the transcript was not subject to release because the 2 The decision of the Ozaukee County Circuit Court, the Honorable Joseph D. McCormack presiding, that the arbitration award was improper was upheld by the court of appeals in Cedarburg Education Association v. Cedarburg School District, No. 2007AP852, unpublished slip op. (Wis. Ct. App. July 23, 2008), review denied, Cedarburg Education Association v. Cedarburg Board of Education, 2009 WI 23, ___ Wis. 2d ___, 764 N.W.2d 531 (unpublished table decision). 3 Linzmeyer v. Forcey, 2002 WI 84, ¶¶10-11, 254 Wis. 2d 306, 646 N.W.2d 811 (creating a two-step test: first, establishing that the record requested is a public record, and, second, determining whether there is a public policy that overcomes the presumption of openness). 4 No. public's interest outweighed by in the the release public policy of the 2007AP2584 transcript favoring privacy was in an notice of alternative dispute resolution such as arbitration.4 ¶10 On November 9, 2007, Morgan filed a intervention pursuant to Wis. Stat. § 19.356(4) and on the same day filed a notice of appeal. On November 16, 2007, Zellner filed a motion to dismiss the appeal for lack of jurisdiction. Zellner argued that Morgan had filed her notice of appeal more than 20 days after the circuit court's October 1 order, and, therefore, the appeal was not timely filed pursuant to Wis. Stat. § 808.04(1m). ¶11 In an order dated December 5, 2007, appeals denied Zellner's motion to dismiss. 2008, the court questions to of this arbitration hearing information in such appeals, court as noted concerning transcripts and transcripts. the This court of On November 26, above, the the certified release redaction court of of two closed medical accepted the certification on January 14, 2009. II. STANDARD OF REVIEW ¶12 We resolve the issue presented here on the basis of statutory interpretation. Statutory interpretation presents a 4 The circuit court essentially found that the public has an interest in keeping arbitration proceedings private. As we have noted, "[I]n applying the common-law balancing test, the concern is not personal embarrassment and damage to reputation, but whether disclosure would affect any public interest[] . . . in the protection of the privacy and reputation of citizens generally." Zellner v. Cedarburg Sch. Dist., 2007 WI 53, ¶52, 300 Wis. 2d 290, 731 N.W.2d 240. 5 No. question of law that is reviewed de novo. 2007AP2584 Stuart v. Weisflog's Showroom Gallery, Inc., 2008 WI 22, ¶11, 308 Wis. 2d 103, 746 N.W.2d 762. III. DISCUSSION ¶13 The outcome of this case turns on the proper understanding of the procedural rules set forth in Wis. Stat. § 19.356, which governs appeals of rulings requested under the Open Records Law. made on records It is helpful to begin with a brief examination of the context in which this provision appears. ¶14 Wis. Stat. § 19.31 codifies the state's strong policy favoring free access to public records. Subsequent sections set forth the limited exceptions to that general principle, as well as the mechanism for judicial review prior to granting public access under certain circumstances. ¶15 Wis. Stat. § 19.356 was among the provisions added when the legislature revisited the statute in 2003, following this court's decisions 2003 Wisconsin Act 47, in Woznicki5 which and created Milwaukee this Teachers.6 section, was the product of the Joint Legislative Council's Special Committee on Review of the Open Records Law.7 The Act created limited rights 5 Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996). 6 Milwaukee Teachers' Educ. Ass'n v. Milwaukee Bd. of Sch. Dirs., 227 Wis. 2d 779, 596 N.W.2d 403 (1999). 7 The Joint Legislative Council introduced Assembly Bill 196 on March 25, 2003. The Assembly passed the bill June 24, 2003, and sent it to the Senate, which concurred in the passage. 6 No. 2007AP2584 to judicial review prior to the release of public records for individuals whose privacy implicated by the release. statute as a "record or reputational interests are Such an individual is defined in the subject" "an individual about whom personally identifiable information is contained in a record." Wis. Stat. § 19.32(2g). ¶16 The subsections of Wis. Stat. § 19.356 deal with a particular subset of containing information public records, relating to which public includes records employees. The subsections describe the timeline envisioned by the legislature with strict time limits at each step. The clock starts running when an authority decides "to permit access" to such a record. At that point, the authority must, within three days, "serve written notice" pertains." on "any record subject Wis. Stat. § 19.356(2). to whom the record After the record subject receives such notice, he or she may, within five days, alert the authority that he or she plans to challenge the release of the information. Wis. receiving notice, review the and information.8 ¶17 ask Stat. that the a § 19.356(3). record court Within subject enjoin Wis. Stat. § 19.356(4). may the ten seek release days of judicial of the This is what Zellner did. Following oral argument, the circuit court ruled that the transcript was a public record. 8 The circuit court went on "Within 10 days after receipt of notice under sub. (2)(a), a record subject may commence an action seeking a court order to restrain the authority from providing access to the requested record. . . ." Wis. Stat. § 19.356(4). 7 No. to rule that the transcript should not be 2007AP2584 released on the grounds that "the public interest is outweighed by the need for privacy in this type of proceeding." The court stated that it would issue an order enjoining the District from releasing the materials. ¶18 The order was issued October 1, 2007. This brings us to the critical point in the process. It was at this point that Morgan, the original requester of the records, filed a notice of intervention as the statute permits and subsequently filed a notice of appeal on November 9, 2007. ¶19 The significance of the dispute about the applicable time period either 20 or 45 days following the issuance of the circuit court's order is that Morgan filed her notice of appeal 39 days after the order. If the 20-day deadline is the correct deadline under the statute, Morgan's appeal is fruitless because there is no jurisdiction for the court of appeals to hear it. If the 45-day deadline is the applicable one, the appeal and our review may proceed. ¶20 In order to resolve this question, we look carefully at the language of the statute. articulated the assumptions and We have on previous occasions principles with which undertake this exercise: It is, of course, a solemn obligation of the judiciary to faithfully give effect to the laws enacted by the legislature, and to do so requires a determination of statutory meaning. Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We assume that the legislature's intent is expressed in the statutory language. Extrinsic evidence of legislative intent 8 we No. 2007AP2584 may become relevant to statutory interpretation in some circumstances, but is not the primary focus of inquiry. It is the enacted law, not the unenacted intent, that is binding on the public. Therefore, the purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect. Thus, we have repeatedly held that statutory interpretation "begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning. Context is important to meaning. So, too, is the structure of the statute in which the operative language appears. Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results. Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage. "If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning." State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶44-46, 271 Wis. 2d 633, 681 N.W.2d 110 (internal citations omitted). ¶21 We therefore turn to the language of the statute that governs appeals of orders in open records cases. governing appeals § 19.356(8): of the type of order The subsection presented here is "If a party appeals a decision of the court under sub. (7), the court of appeals shall grant precedence to the appeal over all other matters not accorded similar precedence by 9 No. law. 2007AP2584 An appeal shall be taken within the time period specified in s. 808.04(1m)." ¶22 an It has already been settled that as a requester and as intervenor party." as of right under statute,9 the Morgan is "a When the question of an intervenor's status first arose in Wisconsin, the court of appeals noted that "the issue is well settled among other jurisdictions," and adopted that approach, summing up the rule briefly: status after intervention "Simply put, [the intervenor's] [is] the same participants in the proceeding . . . ." as all the other Kohler Co. v. Sogen Int'l Fund, Inc., 2000 WI App 60, ¶11, 233 Wis. 2d 592, 608 N.W.2d 746. The court of appeals cited as pertinent a case that interpreted a parallel federal mechanism for intervention: "When a party intervenes, it becomes a full participant in the lawsuit and is treated just as if it were an original party." Id. at ¶12 (quoting Schneider v. Dumbarton Developers, Inc., 767 F.2d 1007, 1017 (D.C. Cir. 1985)). ¶23 further Having obvious established that she is that a Morgan party decision of the court under sub.(7)." is who a is party, it "appeal[ing] is a Wis. Stat. § 19.356(8). The remainder of the sentence concerns the expediting of the appeal, a matter to which we will return shortly. next sentence that needs our close attention: 9 It is the "An appeal shall "'Requester' means any person who requests inspection or copies of a record, except a committed or incarcerated person . . . ." Wis. Stat. § 19.32(3). "Notwithstanding s. 803.09, the requester may intervene in the action as a matter of right. . . ." Wis. Stat. § 19.356(4). 10 No. 2007AP2584 be taken within the time period specified in s. 808.04(1m)." Id. ¶24 The question to answer then period specified in s. 808.04(1m)"? reads as follows: "An appeal by is, what is "the time Wis. Stat. § 808.04(1m) a record subject under s. 19.356 shall be initiated within 20 days after the date of entry of the judgment or order appealed from." ¶25 Wis. Stat. § 19.356(8) tells us to look for the time period referenced in Wis. Stat. § 808.04(1m). the only time period referenced in When we do so, § 808.04(1m) is 20 days. There simply is no other way to read § 19.356 that gives effect to its words. If the legislature had, as Morgan contends, intended that the 20-day time period for appeal for this type of order be limited to the record subject alone, and that a 45-day time period for appeal apply to everyone else, it could have 11 No. 2007AP2584 clearly indicated that by referring to "the applicable sections" in Wis. Stat. § 808.04.10 ¶26 Our See, e.g., Wis. Stat. § 88.05(3)(a). reading is entirely consistent with the legislature's demonstrated interest in resolving these disputes as speedily as possible. Given the tight deadlines imposed throughout the process, a 20-day time period is much more in accord with the overall tenor of the statute than a 45-day time period. The essence of the statute is to prescribe the special handling of matters involving an attempt to block release of a record under the Open Records Law and to require that they be expedited to resolution. This is highlighted by the provision stating that a court and an appellate court are mandated to give precedence to such matters. IV. ¶27 Wis. Stat. § 19.356(7),(8). CONCLUSION For the reasons stated, we now hold that the court of appeals erred when it found the appeal timely under Wis. Stat. 10 While we see the plain language of Wis. Stat. § 19.356(8) as unambiguously requiring a 20-day time period for appeal by virtue of its reference to that time period in Wis. Stat. § 808.04, there are other indications as well that the legislature intended that result. The notes of the Joint Legislative Council, which introduced the legislation, describe the provision's effect as requiring that "[a]n appeal must be taken within 20 days after entry of the judgment or order appealed from." 2003 Wis. Act 47, § 4 n.3. The Legislative Council's Act Memo for 2003 Wisconsin Act 47 states, "Act 47 provides a system of expedited judicial review when a record subject attempts to prevent the release of a public record." See http://www.legis.state.wi.us/2003/data/lc_act/act047-ab196. pdf (last visited June 24, 2009). This is just such a case. It makes sense that the expedited judicial review prescribed by the Act applies to all parties to an action concerning a record subject's attempt to block release of a record. 12 No. § 19.356(8), which requires that an appeal of a 2007AP2584 decision relating to an open records request be filed in "the time period specified in s. 808.04(1m)." statute is 20 days. 20-day period, Because the appeal was filed outside the there appeals to review. The time period specified in that was no jurisdiction for the court of Since the appeal was not timely, we do not reach the certified questions. By the Court. The appeal is dismissed and the order of the circuit court is affirmed. 13 No. ¶28 majority PATIENCE opinion DRAKE denies ROGGENSACK, Heidi J. Morgan's 2007AP2584.pdr (dissenting). (Morgan) open The records request based on its conclusion that she did not timely file an appeal of the circuit court's decision denying access to the records of Robert Zellner's (Zellner) arbitration hearing. It does so by concluding Wis. Stat. § 19.356(8) requires that an intervenor's appeal of a circuit court decision in an open records case be filed within the time period set out in Wis. Stat. § 804.04(1m) for record subjects.1 I write in dissent because initial although § 19.356 provides the procedural pathway for our review, § 808.04(1) applies to Morgan's appeal. Section 808.04(1) provides a minimum of 45 days in which to commence an appeal and Morgan's appeal was filed within 45 days of the circuit court decision. And, although Morgan intervened,2 she was not a "party" when the circuit court entered its order, nor was she a party during the 20-day period when the majority opinion concludes that she was required to appeal.3 Accordingly, this court should proceed to decide the important questions for which we granted certification. Therefore, I respectfully dissent. 1 Majority op., ¶4. 2 Zellner has not objected to Morgan's intervention in this court, and the majority opinion assumes it was undertaken sufficiently to cause Morgan to become a party. Id., ¶22. I, too, agree that Morgan is properly a party in the certification pending before us. 3 Id., ¶27. 1 No. I. ¶29 2007AP2584.pdr BACKGROUND This case arises out of an open records request by Morgan4 for the arbitration proceeding transcript relative to Zellner's termination Cedarburg School Morgan's open disclosure of of employment District records those a (Cedarburg).5 request. public as In records, an teacher Cedarburg attempt Zellner6 to in granted prevent commenced present action, pursuant to Wis. Stat. § 19.356(4). the the When he did so, he became the party plaintiff and Cedarburg became a party defendant. § 19.356(4). Morgan was not named in the action and accordingly she was not a party initially. ¶30 The circuit court concluded that the transcript was a public record, but when it balanced the public's interest in disclosure with the public's interest in precluding disclosure, the circuit court concluded that the transcript should not be released. ¶31 2007. The circuit court entered its decision on October 1, On November 9, 2007, Morgan gave notice of her intention to intervene as of right, pursuant to Wis. Stat. § 19.356(4), and on November 9, 2007, she also filed a notice of appeal. 4 Morgan is defined as a "requester" Records Law. Wis. Stat. § 19.32(3). under the Public 5 Cedarburg, as the custodian of the records, is defined as an "authority" under the Public Records Law. Wis. Stat. § 19.32(1). In the parlance of this dissent, I sometimes refer to Cedarburg as the custodian or the custodian of the records. 6 Zellner is defined as the "record subject" Public Records Law. Wis. Stat. § 19.32(2g). 2 under the No. ¶32 On November 16, 2007, Morgan's appeal as untimely. motion on Dec. 5, 2007, Zellner 2007AP2584.pdr moved to dismiss The court of appeals denied his concluding that Morgan's notice of appeal was timely according to Wis. Stat. § 808.04(1), which it determined to be the statute applicable to Morgan's appeal. Zellner v. Herrick, No. 2007AP2584, interim order (Wis. Ct. App. Dec. 5, 2007). ¶33 Whether arbitration records are public records subject to an open records request is an important question of first impression. Accordingly, the court of appeals certified the appeal to us, and we accepted the certification. II. A. DISCUSSION Standard of Review ¶34 decision Whether presents application, review. which Morgan timely questions are of appealed the statutory interpretation questions of law for circuit our court and independent Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581; Spiegelberg v. State, 2006 WI 75, ¶8, 291 Wis. 2d 601, 717 N.W.2d 641. B. Statutory Interpretation 1. General principles ¶35 We interpret a statute to determine its meaning. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶43, 271 Wis. 2d 633, 681 N.W.2d 110. "We assume that the legislature's intent is expressed in the statutory language." Id., ¶44. Statutes are to be read in context, consistent with the statutes to which they relate. Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659. 3 Statutes are to be No. 2007AP2584.pdr read so as "to give reasonable effect to every word, in order to avoid surplusage." ¶36 Kalal, 271 Wis. 2d 633, ¶46. In construing a statute, we favor a construction that fulfills the purpose of the statute over one that defeats that purpose. (Ct. App. governing Brown v. Thomas, 127 Wis. 2d 318, 323, 379 N.W.2d 868 1985). the Finally, time limits procedural for appeals, rules, are such to be as those construed liberally "so as to encourage a resolution of the controversy on the merits." Split Rock Hardwoods, Inc. v. Lumber Liquidators, Inc., 2002 WI 66, ¶57, 253 Wis. 2d 238, 646 N.W.2d 19 (quoting State v. Sorenson, 2000 WI 43, ¶15, 234 Wis. 2d 648, 611 N.W.2d 240). 2. Public Records Law ¶37 This case arises from a request for public records, often referred Hegerty, 2008 to WI as an open records request. 74, ¶6, 311 Wis. 2d 52, 751 Watton N.W.2d v. 369. Therefore, the portion of Wis. Stat. ch. 19 that pertains to the Public Records Law is my starting point. Wisconsin Stat. § 19.31 sets out the legislative purpose that affects all open records requests. Section 19.31 provides in relevant part: In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. . . . To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied. 4 No. § 19.31 (emphasis added). 2007AP2584.pdr Accordingly, the directive of § 19.31 will be paramount in my interpretation and application of the Public Records Law sections of ch. 19. ¶38 The Public Records Law contains two procedural pathways of review, depending on whether the custodian of the records decides to deny, or to provide, access to the requested records. If the custodian denies access, a requester of the records has 90 days in which to commence a mandamus action in circuit court. Wis. Stat. § 19.37(1)(a), (1m). If the custodian grants access to the records, a record subject has only 10 days in which to commence a circuit court action seeking to enjoin release of the records. Wis. Stat. § 19.356(4). The differing time limits afforded a requester when compared with those afforded a record subject are consistent with Wis. Stat. § 19.31's stated purpose. This is so because more time is given to a requester, who is acting in accord with the policy of providing complete access to public records. Less time is given to a record subject, who is attempting to block access to public records, an action contrary to the stated purpose of the Public Records Law. ¶39 § 19.31. If the circuit court in a requester's mandamus action affirms the custodian's decision not to release the records, then a requester has 45 days after notice of entry of judgment, or 90 days if no notice is given, to appeal the circuit court decision to the court However, if the circuit of appeals. court, in Wis. a Stat. record § 808.04(1). subject's action commenced to enjoin release of the public records, denies the injunction, a record subject has only 20 days in which to file 5 No. an appeal. § 808.04(1m). 2007AP2584.pdr Again, this difference in the time accorded to seek further review is consistent with the statutory purpose affairs: of affording access to the records of government a requester, whose actions are in line with access, is given more time, and a record subject, who is trying to thwart access, is given less time to appeal an adverse decision. Wis. Stat. § 19.31. ¶40 In the case before us, Zellner commenced this action requesting the circuit court to enjoin Cedarburg from releasing the records of his arbitration proceeding. proceeded under Wis. Stat. § 19.356(4). Therefore, Zellner In so doing, he became a party plaintiff and Cedarburg was required to be named as a party defendant. ¶41 § 19.356(4). The circuit court entered its decision enjoining the release of the public records on October 1, 2007, and Morgan intervened on November 9, 2007. Therefore, Morgan was not a party when the circuit court entered its order. 3. Timeliness of Morgan's appeal ¶42 The majority opinion parses Wis. Stat. § 19.356(8), which provides in relevant part: If a party appeals a decision of the court under sub. (7), . . . [a]n appeal shall be taken within the time period specified in s. 808.04(1m). ¶43 The majority opinion also parses Wis. Stat. § 808.04(1m), which provides: An appeal by a record subject under s. 19.356 shall be initiated within 20 days after the date of entry of the judgment or order appealed from. 6 No. The majority opinion applies § 808.04(1m) to Morgan. the words, contrary "record to 20-day limitation out statutory of § 808.04(1m). construction This principles statutes are to be interpreted to avoid surplusage. Wis. 2d 633, ¶46. of In so doing, the majority opinion reads subject," basic the 2007AP2584.pdr is that Kalal, 271 The majority opinion also includes Morgan as a "party" under § 19.356(8). In so doing, it creates a way to deny Morgan her right to appeal, and it contravenes the stated purpose for which the Public Records Law was enacted complete access to public records. ¶44 Wis. Stat. § 19.31. I conclude that the majority errs by eliminating the term, "record subject," from Wis. Stat. § 808.04(1m). I also conclude that a reading of the term "party" in § 19.356(8) to include only the record stated purpose of the subject Public is consistent Records Law and with the both the procedural pathway a record subject must use when he attempts to enjoin the release of public records. ¶45 This is so because when a record subject files an action to enjoin release of public records, the statutes provide for two parties: subject. Wis. the Stat. authority (custodian) § 19.356(4). When and the § 19.356 record is the procedural pathway through which the open records request is proceeding, the court decision. custodian will not be appealing the circuit By contrast, when the custodian denies release of the records, the appeal proceeds under Wis. Stat. § 19.37(1), not under § 19.356. See Milwaukee Journal Sentinel v. Wis. Dep't of Admin., 2009 WI 79, ¶5 & 7, __ Wis. 2d __, __ N.W.2d __. 7 No. ¶46 A "party" in Wis. Stat. § 19.356(8) 2007AP2584.pdr refers to the record subject because it is the record subject who would appeal from a circuit court decision to release the records. If the circuit court decides not to release the records, as occurred here, the custodian has no interest in appealing because the custodian is in the same position as it was before the open records request was made. And finally, the requester may choose not to intervene at all, because intervention is not mandatory. § 19.356(4). Or, the requester may do so several weeks after entry of the circuit court decision, as occurred here, or even after the record subject appeals. See City of Madison v. Wis. Employment Relations Comm'n, 2000 WI 39, ¶1, 234 Wis. 2d 550, 610 N.W.2d 94. ¶47 The majority opinion interprets procedural statutes, which at the very least, are ambiguous in regard to whom the term "party" applies. When interpreting ambiguous procedural statutes, we do so in a manner that will permit a decision on the merits. Sorenson, 234 Wis. 2d 648, ¶28. As we explained in DOT v. Peterson, 226 Wis. 2d 623, 594 N.W.2d 765 (1999), where a property owner served the State of Wisconsin rather than the Department of Transportation, if a statute "can reasonably be interpreted" so as to permit review, we do so. majority errs in contravening this basic Id. at 625. rule of The statutory construction. ¶48 In addition, the majority opinion's interpretation of Wis. Stat. § 19.356(8) is contrary to the express directive of the legislature in regard to construction of Wis. Stat. §§ 19.32 to 19.37 because the majority opinion 8 thwarts access to the No. public records appeal rights. ¶49 that Morgan sought by shutting 2007AP2584.pdr down Morgan's See Wis. Stat. § 19.31. Furthermore, the majority sense reading of the statutes. opinion defies Let me explain. notice of intervention on November 9, 2007. a common Morgan filed a Therefore, when the circuit court issued its October 1, 2007, decision, Morgan was not a party. Morgan also was not a party during any part of the 20-day time period in which the majority opinion concludes she was required to appeal in order for her appeal to be timely. Under the majority opinion's statutory interpretation, Morgan lost her appeal rights as a "party" before she was a "party." This internal inconsistency in the majority opinion demonstrates the ambiguity in Wis. Stat. opinion chooses to ignore.7 interpreted in favor of controversy on the merits. ¶50 § 19.356(8) that the majority A procedural ambiguity should be permitting the resolution of this Sorenson, 234 Wis. 2d 648, ¶22. In my view, the court of appeals got it right when it concluded that Wis. Stat. § 808.04(1) set the time limit for Morgan's notice of appeal. interim appeals' order (Wis. conclusion Ct. is Zellner v. Herrick, No. 2007AP2584, App. Dec. 5, consistent with 2007). The court what Morgan's of appeal rights would have been if she had been required to filed a mandamus action due to an adverse decision by Cedarburg. The court of appeals' conclusion is also consistent with Wis. Stat. § 19.31, in that it interprets the Public Records Law to promote 7 Majority op., ¶¶18-19. 9 No. 2007AP2584.pdr an opportunity for complete access to government workings by permitting Morgan's appeal to go forward. III. ¶51 The majority CONCLUSION opinion errs when it contravenes foundational principles of statutory construction and interprets the Public Records Law contrary to the legislature's express directive in regard to the construction of Wis. Stat. §§ 19.32 to 19.37. light on Wis. Stat. § 19.31. governmental Morgan is seeking to shine a actions, and Zellner for "complete legislature's express directive The opinion assists majority Zellner's is thwarting public efforts. the access." Because I conclude that the majority opinion errs and also that Morgan's appeal was timely filed, I respectfully dissent. 10 No. 1 2007AP2584.pdr

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