ARMADA BROADCASTING, INC. v. STIRN,

183 Wis.2d 463 (1994)

516 N.W.2d 357

                       CONTENTS INDEX




ARMADA BROADCASTING, INC.,
a Wisconsin corporation,

Plaintiff-Respondent,



v.



Robert E. STIRN, District Administrator,

School District of Wisconsin Dells,

a municipal corporation, Defendants-Respondents, 



Richard SCHAUF, Appellant-Petitioner.




Supreme Court No. 92-3036. Oral argument March 3, 1994. Decided May 12, 1994. Reversing and remanding with directions 177 Wis.2d 272, 501 N.W.2d 889 (Ct. App. 1993).)
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REVIEW of a published decision of the Court of Appeals

affirming an order of the Circuit Court of Sauk County,

James Evenson, Judge.



Reversed and remanded with directions.



For the appellant-petitioner there was a brief by Carol

Grob, Gordon E. McQuillen and Cullen, Weston, Pines &

Bach, Madison and oral argument by Carol Grob.



For the plaintiff-respondent there was a brief (in the

court of appeals) by Richard W. Cross and Cross Law

Offices, Wisconsin Dells and there was no oral

argument.



WILLIAM A. BABLITCH, J.



Richard Schauf (Schauf) seeks review of a court of

appeals' decision denying him the right to intervene in

Armada Broadcasting, Inc.'s, (Armada) action to compel

disclosure of an investigative report in which Schauf

is a subject.



The court of appeals held that Schauf lacked a legally

protected interest in closing the report from public

access and thus denied his request.



We disagree. We find that Schauf meets the criteria for

intervention as of right[fn1] and accordingly, we

reverse the decision of the court of appeals

and remand so that Schauf may intervene.
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The facts are undisputed.



The School District of Wisconsin Dells (District)

commissioned Attorney Ann Weiland to investigate

employee charges of sexual harassment.



On the basis of her report (Weiland report), the

District took disciplinary action against

Schauf and other District employees.



In response, Schauf filed a grievance against the

District in accordance with the District's

collective bargaining agreement.



In September 1992, Armada filed a written request with

Robert Stirn, Administrator for the District, for

copies of the Weiland report and other

documents in the District's possession.



Armada made the request pursuant to the Wisconsin Open

Records Law, Section 19.35, Stats.



The District disclosed copies of some of the documents

but denied the request for the Weiland report, citing

the following reasons for its denial:



1.  The document prepared by Ms. Weiland for

    the District constitutes a confidential

    attorney/client communication and is

    subject to the attorney/client privilege

    under section 905.03 Wis. Stats.



    See also section 19.85(1)(g), Wis. Stats.



2.  Disclosure of the report would run counter to

    the legislature's recognition of the need to

    keep personnel records confidential to

    protect the reputational interests of

    individual employees, as indicated

    in section 19.85(1), Stats.
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    This document is an integral part of an

    investigation of charges against

    specific individuals.





    If the charges were discussed in public,

    a substantial adverse effect upon the

    reputation of these individuals

    would likely result.



    The Board will be reviewing the charges

    against certain employees pursuant to

    the grievance procedure.



    The investigation is, therefore, not complete.



3.  Disclosure of the report would infringe on

    the right to privacy of the employees who

    brought the charges which resulted

    in the investigation.



5.  Disclosure would provide the press with

    greater access than the employees

    involved enjoy themselves.



Armada filed a petition for a writ of mandamus

to obtain the Weiland report.



On November 2, 1992, the same day oral arguments were

to be held on the writ of mandamus, Schauf filed a

motion to intervene in the action.



Schauf claimed that he had a legally protected interest

in the disclosure of his personnel files because

disclosure would greatly harm his reputation.



He also argued that he would be inadequately

represented by the District, and that his due process

rights to fair grievance procedures would be violated

if he was not allowed to intervene.



Armada was the only party to oppose Schaufs motion.



The circuit court denied Schaufs motion, reasoning that

the balancing of interests in the public records

analysis is best done by looking only at the interests

of the parties originally in the action.
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At the conclusion of a second hearing on November 24,

1992, the circuit court denied Schauf's request to stay

disclosure of the report pending an appeal of his

motion to intervene.



The court then ordered that six and one-half

pages of the Weiland report be released.



Included within the six and one-half pages released

is a paragraph relating to Schauf's alleged sexual

harassment and the action that Attorney Weiland

proposed be taken against him.



The court's basis for preserving the confidentiality of

the other portions of the Weiland report was that the

report contained extreme contradiction and

uncorroborated information which if released could

cause harm to the reputations of the District

employees involved in the investigation.



On December 17, 1992, prior to Armada's hearing for

reconsideration of the circuit court decision, the

court of appeals granted Schaufs motion for stay of

further proceedings, pending appeal.



Subsequently, the court of appeals affirmed the circuit

court's denial of Schauf's motion to intervene on the

basis that Schauf did not have a legally protected

interest in closing the Weiland report from public

access.



Schauf petitioned, and we granted review.



Schauf was the only party to submit a brief and

participate in oral argument before this court.



The District did not oppose Schaufs motion,

and Armada relied solely on its brief

submitted to the court of appeals.



The sole issue on review is whether Schauf has

a right to intervene in the mandamus action

under Section 803.09(1), Stats.



The decision to allow or deny intervention as of right

is a question of law which we review de novo.



State ex rel. Bilder v. Delavan Tp.,

112 Wis.2d 539, 549,

334 N.W.2d 252 (1983).
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We begin by setting forth the four requirements[fn2]

for intervention as of right enumerated in the statute:



(1)  that the motion to intervene be made in a

     timely fashion;



(2)  that the movant claims an interest relating

     to the property or transaction which is the

     subject of the action;



(3)  that the movant is so situated that the

     disposition of the action may as a practical

     matter impair or impede the movant's ability to

     protect that interest; and



(4)  that the movant's interest is not adequately

     represented by existing parties.



If Schauf meets each of the requirements listed above,

we must allow him to intervene in the mandamus action.



The court of appeals denied Schauf's motion on the

basis that he lacked a legally protected interest

in the mandamus action, and thus did not address

the other requirements for intervention.



We address each requirement separately below and

conclude that Schauf meets each of the

requirements for intervention.



I.  TIMELINESS



The question of timeliness is left to the

discretion of the circuit court.



Bilder, 112 Wis.2d at 550.
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The circuit court did not cite timeliness as grounds

for denial of Schaufs motion, and Armada has not

objected to his motion on this basis.



Schauf filed and argued his motion for intervention

prior to the commencement of the first hearing

on the mandamus action.



We conclude that Schaufs motion was timely.



II.  SUFFICIENTLY RELATED INTEREST



In determining whether Schauf claims an interest

relating to the transaction which is the subject

of the action, we must determine whether Schauf

has an interest "sufficiently related" to

Armada's mandamus action.



Bilder, 112 Wis.2d at 547.



In doing so, we are instructed to "view the interest

sufficient to allow the intervention practically

rather than technically."



Id. at 548.



The purpose of this approach is to strike a balance

between two conflicting public policies: allowing the

original party to conduct and conclude its own lawsuit

and allowing persons to join in the interest of the

speedy and economical resolution of controversies.





Courts using this pragmatic approach view the interest

test as "primarily a practical guide to disposing of

lawsuits by involving as many apparently concerned

persons as is compatible with efficiency and

due process."



Id. at 549  citing Nuesse v. Camp,

            385 F.2d 694,

            700 (D.C. Cir. 1967).



The court of appeals denied Schaufs motion

on the basis that Schauf lacked a legally

protected interest in intervening.



In doing so, however, the court did not employ

the pragmatic approach adopted in Bilder.



Rather, the court focused on the public

policy behind the Open Records law.
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It stated:     Even if `there is a legal

               guarantee of present

               enjoyment of reputation

               or a general legislative

               policy to protect a

               citizen's general

               interest in his or her

               reputation, that does not

               as a matter of law

               overcome the public

               policy regarding open

               records.



Armada Broadcasting, Inc. v. Stirn,

177 Wis.2d 272, 281,

501 N.W.2d 889 (Ct. App. 1993)



(citing Bilder, 112 Wis.2d at 557).



The court of appeals' reliance on this language in

Bilder was misplaced. This language was used in

Bilder in the context of determining whether

the record in question should be opened to

the public under the Wisconsin Open Records law.



The issue before us does not involve a determination

under the Open Records law.



We do not decide whether the Weiland report

should be disclosed to the public.



Rather, we are concerned solely with whether

Schauf has an interest sufficiently related

to the mandamus action for purposes of

intervention under Section 803.09(1), Stats.



We need not balance such interest against

the policy behind the Open Records law.



For this same reason we reject Armada's argument that

our decision whether to allow Schauf to intervene is

governed by other language in Bilder which reads: "it

is the legal custodian of the record, not the citizen,

who has the right to have the record closed . . . ."



112 Wis.2d at 558.



This statement has no affect upon our

decision regarding intervention.



As stated previously, our decision does not influence

whether the record should remain closed.



Moreover, it does not grant Schauf

the ability to close the record.



We are simply determining whether Schauf may intervene

for the purpose of being able to offer reasons to the

court why the record should remain closed.
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Utilizing the pragmatic approach recommended in Bilder

to resolve this question we conclude that Schauf does

have an interest sufficiently related to Armada's

mandamus action.



The Weiland report contains speculative and

uncorroborated information about Schauf which could

cause great harm to Schauf's reputation and future

career as a school teacher.



Consequently, Schauf has a unique and significant

interest in attempting to persuade the court

that this report should remain closed.



Schauf has a general right to privacy

under Wisconsin law.



See Section 895.50, Stats; see also Sections 15.107(13)

and 19.625 (establishing and delineating the functions

of the state Privacy Council).



Further, several sections of the Wisconsin statutes

evince a specific legislative policy of protecting

privacy and confidentiality in employee

disciplinary actions.





For example, Sections 19.35(1) and 19.85(1)(b), (c),

and (f), except from the open records and

open meetings laws records or meetings dealing

with disciplinary actions against employees.



Additionally, Section 230.13(1)(c) permits a state

secretary or administrator to keep personnel

records closed to the public when they

involve disciplinary actions of employees.



Finally, Section 103.13(6) provides situations when no

one, including the public employee, may inspect

personnel files as a matter of confidentiality.



We have also recognized that there is a public-policy

interest in protecting the reputations of citizens.



Newspapers, Inc. v. Breier,

 89 Wis.2d 417, 430,

279 N.W.2d 179 (1979).



Within the context of the common law tort of

defamation we underscored the importance in

preserving one's reputation:
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A person's reputation and good name is of

inestimable value to him and once it has been

besmirched by another through carelessness or

malice restoration is virtually impossible.



Protection of a citizen's good name is

a proper concern of the state.



Denny v. Mertz,

106 Wis.2d 636, 658,

318 N.W.2d 141 (1982), cert. denied,



459 U.S. 883(1982). (Footnote omitted.)



This heightened significance given to privacy and

reputation leads us to conclude that Schaufs interest

in keeping the Weiland report closed is sufficient

to satisfy Section 803.09(1), Stats.



Such a conclusion not only recognizes Schaufs interest

but also serves the policy behind the pragmatic

approach recommended in Bilder.



It allows Armada to conduct its lawsuit, it promotes

judicial efficiency in that all interested parties are

involved, and it ensures Armada finality to the extent

that Schaufs rights will be exercised during the

mandamus action rather than in later litigation.



Based on his interest in the action, Schauf should be

allowed to intervene.



III.  PROTECTION OF INTEREST



If Schauf is to protect his recognized interest in the

remaining portions of the Weiland report, he must be

allowed to intervene in the mandamus action.



Should those remaining portions of the report be

released, the damage to Schauf's reputation will have

already occurred.



This has already been illustrated with respect to the

last six and one-half pages of the report which have

been released and which disseminate incriminating

information about Schauf to the public.



The time for Schauf to protect his interest is now.
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IV.  ADEQUATE REPRESENTATION



When determining whether a party's representation is

deemed adequate we look to see if there is a showing

of collusion between the representative and the

opposing party; if the representative's interest

is adverse to that of the proposed intervenor;

or if the representative fails in the fulfillment

of his duty, Milwaukee Sewerage Commission v. DNR, 104

Wis.2d 182, 189, 311 N.W.2d 677 (Ct. App. 1981) (citing

United States v. Board of Sch. Com'rs, Indianapolis,

Ind., 466 F.2d 573, (7th Cir. 1972), cert. denied, 410

U.S. 909 (1973).



In interpreting Rule 24(a)(2) of the Federal Rules of

Civil Procedure upon which Section 803.09, Stats., was

based, see Bilder, 112 Wis.2d at 547, the Supreme Court

of the United States stated that the showing required

for proving inadequate representation "should be

treated as minimal."



Trbovich v. United Mine Workers,

404 U.S. 528, 538 n.10 (1972).



Schauf meets the minimal requirement for showing

that his interests are not adequately

represented by the District.



He has filed a grievance action against the District

under a collective bargaining agreement.



Denying Schauf the ability to intervene would force him

to rely on an adverse party to protect his privacy

interests.



Although the District argued at the motion hearing that

disclosure of the Weiland report could potentially harm

the reputations of the subjects investigated, we cannot

expect the District to defend the mandamus action with

the vehemence of someone who is directly affected by

public disclosure of the report.



The personal nature of the interests at stake in the

Weiland report make Schauf the best person

to protect those interests.



The District apparently recognizes this;

it does not oppose Schaufs motion to intervene.
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Therefore, we find that in order to be

adequately represented Schauf must be

allowed to intervene in the mandamus action.



Because Schauf meets all of the requirements under

Section 803.09(1), Stats., we conclude that he is

entitled by right to intervene in Armada's

mandamus action.



Accordingly, we reverse the decision of the court of

appeals and remand to the circuit court so that

Schauf may intervene.



By the Court. The decision of the court of appeals is

reversed and remanded with directions.



[fn1]     Section 803.09(1), Stats., provides:



          Upon timely motion anyone shall be permitted

          to intervene in an action when the movant

          claims an interest relating to the property  

          or transaction which is the subject of the

          action and the movant is so situated that the

          disposition of the action may as a practical  

          matter impair or impede the movant's ability

          to protect that interest, unless the movant's

          interest is adequately represented by 

          existing parties.



[fn2]     The court of appeals listed a fifth

          requirement: that the intervention will not

          unduly prejudice the adjudication of the

          original parties' rights.



          This requirement is not a condition of

          Section 803.09(1), Stats., but of permissive

          intervention under Section 803.09(2).



          



          Schauf seeks intervention solely under

          Section 803.09(1), and thus we do

          not address the fifth requirement.




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