ARMADA BROADCASTING, INC. v. STIRN,
183 Wis.2d 463 (1994)
516 N.W.2d 357
ARMADA BROADCASTING, INC.,
a Wisconsin corporation,
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).)
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
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.
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.
This document is an integral part of an
investigation of charges against
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.
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
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).
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
(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.
The question of timeliness is left to the
discretion of the circuit court.
Bilder, 112 Wis.2d at 550.
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
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.
It stated: Even if `there is a legal
guarantee of present
enjoyment of reputation
or a general legislative
policy to protect a
interest in his or her
reputation, that does not
as a matter of law
overcome the public
policy regarding open
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.
Utilizing the pragmatic approach recommended in Bilder
to resolve this question we conclude that Schauf does
have an interest sufficiently related to Armada's
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
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:
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
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.
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
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.
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
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
[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.