STATE EX REL. SCHULTZ v. BRUENDL,
168 Wis.2d 101 (Ct.App. 1992)
483 N.W.2d 238 CONTENTS
STATE of Wisconsin EX REL. Brandon R. SCHULTZ,
Donald A. BRUENDL,
individually and in his capacity as Sheriff,
County of Green Lake, Respondent-Respondent.
Court of Appeals No. 91-0863.
Submitted on briefs February 7, 1992.
Decided March 4, 1992.
APPEAL from an order of the circuit court for Green
Lake county: DAVID C. WILLIS, Judge. Affirmed.
On behalf of the petitioner-appellant the cause was
submitted on the briefs of Brandon R. Schultz, pro se.
On behalf of the respondent-respondent the cause was
submitted on the brief of John B. Selsing,
On behalf of the State of Wisconsin an amicus curiae
brief was submitted by James E. Doyle, attorney
general, and Laura Sutherland,
assistant attorney general.
On behalf of the Wisconsin Counties Association
an amicus curiae brief was submitted by
Robert W. Mulcahy and John J. Prentice of
Michael, Best & Friedrich of Milwaukee.
Before Brown, Anderson and Snyder, JJ.
Brandon Schultz appeals from an order denying his
petition for a writ of mandamus to compel the
county sheriff to provide him with an
inventory of his arsenal.
On appeal, Schultz argues that Section 59.14, Stats.,
obliges a county sheriff to provide such records and
that the circuit court erred in not granting his
petition for a writ of mandamus.
We hold that because an arsenal record is not a paper
"required to be kept," Section 59.14 is inapplicable.
Accordingly, we affirm the order of the circuit court.
In September 1990, while incarcerated at the Kettle
Moraine Correctional Institution, Schultz mailed to
Sheriff Donald Bruendl of Green Lake county the
following request written on a paper towel:
I'm a pris'ner at KMCI, ya see, and I want you to give
me photocopies of your dept.'s latest armory inventory
records that contain the make, model, and
amount of every type of gun used by your dept.
Yo! Be good to this homeboy and obey me by 9-29-90.
By letter of September 28, 1990, Bruendl denied the
request stating that "this information is confidential
for security reasons and the protection of my
Schultz then filed a petition for a writ of mandamus in
circuit court, which petition specified only Section
59.14, Stats., as the source of authority for his
The circuit court, evidently without a hearing, denied
the petition, finding that "the requested information
is not the type intended by law to be released.
The Court also finds that the Sheriffs declination to
release the information was on good and clear grounds,
security and protection of the officers."
Schultz moved for reconsideration, arguing in his brief
that the sheriffs reasons did not establish any
recognized exception to the disclosure
provisions of Section 59.14, Stats.
The circuit court denied the motion, again citing
safety and security as good grounds and further found
that "releasing the information would be of harm to the
public interest and would far outweigh any benefit
which would arise from granting the request."
We begin our discussion by noting that this court
certified this question to the Wisconsin Supreme Court
on October 16, 1991; that court elected
not to accept certification.
We then sought amicus curiae briefs from the
Wisconsin attorney general's office and from
the Wisconsin Counties Association.
We further note that the appellate brief from the Green
Lake County Corporation Counsel addressed this as a
case arising out of the open records law,
Sections 19.21 to 19.39, Stats.
We believe that the circuit court's actions, although
not so specifically denominated, also reflected a
similar Chapter 19, Stats., analysis.
At no point, however, in the circuit court or on
appeal did Schultz argue his to be a claim
made pursuant to Chapter 19.
Case law makes clear that Section 19.35, Stats.
(the access to records provision of the open records
subchapter) and Section 59.14, Stats., create different
rights of inspection and have different exceptions to
We believe it instructive to set forth
this case law here.
Section 19.35(1)(a), Stats., sets forth the general
rule that "except as otherwise provided by law, any
requester has a right to inspect any record."
However, as our supreme court has stated, this right is
not absolute: "There may be situations where the harm
done to the public interest may outweigh the right of a
member of the public to have access to particular
public records or documents.
Thus, the one must be balanced against the other in
determining whether to permit inspection."
State ex rel. Youmans v. Owens,
28 Wis.2d 672, 681,
137 N.W.2d 470, 474 (1965).
If the custodian refuses to allow inspection, the
custodian must state specific policy reasons for the
refusal and these reasons then provide a basis for
review by a court.
Newspapers, Inc. v. Breier,
89 Wis.2d 417, 427,
279 N.W.2d 179, 184 (1979).
While Section 59.14(1), Stats., specifies those public
officials subject to its purview,[fn2] the right of
inspection it creates in
those persons who properly come
under its umbrella is "an absolute
right of inspection subject only to
regulations. . ."
State ex rel. Bilder v. Township of Delavan,
112 Wis.2d 539, 553,
334 N.W.2d 252, 260 (1983)
State ex rel. Journal Co. v. County Court,
43 Wis.2d 297, 308,
168 N.W.2d 836, 841 (1969)
The supreme court has recognized that this absolute
right is not without exception, however.
Bilder, 112 Wis.2d at 554, 334 N.W.2d at 260.
The first exception is that documents may be closed to
public examination when there is a statute authorizing
the sealing of otherwise public records.
The second is that disclosure must yield if it
infringes on a constitutional right.
Id. at 555, 334 N.W.2d at 260.
The third, less clearly established in that case, is
that the circuit court may limit public access to
judicial records when the administration of
justice requires it.
See id. at 556, 332 N.W.2d at 261.
Schultz argues that because a sheriffs arsenal records
come under none of these exceptions, the circuit
court erred in not requiring the sheriff
to comply with the request.
We hold that Schultz' request does not satisfy that
portion of Section 59.14(1), Stats., which requires
inspection only of "all books and papers required
to be kept in his or her office. . ."
The earliest case addressing this particular
statutory requirement appears to be
Rock County v. Weirick,
143 Wis. 500,
128 N.W. 94 (1910).
There, our supreme court held that Rock county's
abstract books were subject to inspection under
Section 700, Stats. (1898), a predecessor
statute to Section 59.14, Stats.
Weirick, 143 Wis. at 504, 506-07, 128 N.W. at 95, 96.
The county had argued that when it contracted to
compile the abstract books, there was "no provision
of law authorizing or requiring the county to keep
any such books."
Id. at 504, 128 N.W. at 95.
The supreme court rejected this argument because the
legislature changed the law to authorize such books a
few days after the formal contract was made.
See id. at 506, 128 N.W. at 96.
More recent cases involving Section 59.14, Stats.,
have all involved court records.[fn3]
The earliest of these cases,
State ex rel. Journal Co. v. County Court,
43 Wis.2d 297,
168 N.W.2d 836 (1969),
which involved a demand to inspect a circuit court
decision, predicated the application of the statute
upon a determination that the document sought
to be inspected is one required to be kept.
Id. at 309-10, 168 N.W.2d at 841-42.
The court looked to Section 59.39(1), Stats., which
requires the clerk of circuit court to "file and keep
all papers properly deposited . . . in every action or
proceeding . . .," id., and concluded that a court
decision is required to be filed or kept within the
meaning of Section 59.14(1).
See Journal, 43 Wis.2d at 309-10, 168 N.W.2d at 841-42.
We conclude, then, that one who requests information
under Section 59.14, Stats., must first show that the
document sought is one "required to be kept" before
he or she may successfully invoke the statute.
On appeal, Schultz relies upon Section 59.23(5),
Stats., which requires a sheriff to "deliver on
demand to his successor in office . . . all books,
records . . . and other papers belonging to his
office and in his possession. . .."
We are unpersuaded by this argument.
In essence, this argument would have us read the
word "kept" as though it were perfectly synonymous
with "retained" or "preserved."
While these are common enough meanings of the word
"kept," see Webster's Third New International
Dictionary 1235 (1976), the particular sense of the
protean concept embodied in "keep" depends upon the
object it refers to "to keep time," for example,
expresses a very different sense of the word "keep"
than does "to keep watch," or, for that matter, "to
See The Random House Dictionary of the
English Language 1048 (2d ed. 1987).
We believe that, in reference to books and papers,
the word "keep" is limited to the following definition:
"to maintain a record in (as of daily occurrences or
transactions) <a journal> < books for a business firm>
. . . to enter (as an account or record) in a book."
Webster's at 1235.
Nontechnical words are to be construed according to
their common and ordinary usage, which may be
established by the definition of a recognized
Ervin v. City of Kenosha,
159 Wis.2d 464, 484,
464 N.W.2d 654, 662-63 (1991).
We hold, then, that in Section 159.14(1), Stats.,
"books and papers required to be kept" are not all
those which the custodian is obliged merely to retain
or preserve; rather, they are only those which the
custodian is obliged by law to maintain or
We further conclude that the requester has the burden
of showing just what authority constrains the official
to maintain or engender the record requested.
Schultz argues that such a reading of the statute
flies in the face of language in the Journal case,
where the supreme court stated:
While the above statement discussing the filing
requirement of a court decision controls the facts
in this case, it should be made clear, as we did
in Youmans, that the duty of an officer to produce
records is not confined only to those records that
he is required to keep but extends to other
records in his custody that may deal with his
Journal, 43 Wis.2d at 310, 168 N.W.2d at 842.
We believe that this statement, explicitly extending as
it does beyond the facts of the case, is dicta.
Language broader than necessary to determine
the issue before the court is dicta.
Sunnyslope Grading, Inc. v. Miller,
Bradford & Risberg, Inc.,
148 Wis.2d 910, 917,
437 N.W.2d 213, 216 (1989).
Beyond this, we also conclude that this language,
alluding as it does to Youmans, a Chapter 19, Stats.,
case, was in fact making reference to inspection rights
under that chapter, not under Section 59.14, Stats.
Our interpretation of Section 59.14(1), Stats.,
comports with 67 Op. Att'y Gen. 12 (1978), where
Attorney General La Follette opined that a sheriffs
radio log and other intradepartmental documents were
"public records within the meaning of Section 19.21(1),
Stats. . . . even though they are not records, `books
and papers required by law to be kept in his office'
and are not subject to the statutory right of
inspection and copying by any person under the
provisions of Section 59.14(1), Stats."
Id. at 12 (addition in original).
Our limited reading of "kept" also serves common sense.
Were we to adopt Schultz' rationale that a "kept" paper
was any one which the present sheriff happened to
inherit from his or her predecessor, then the papers
subject to inspection under Section 59.14, Stats.,
would undoubtedly vary wildly from one county to the
next, their existence being dependent only upon what
predecessors elected to retain or amass.
It is elementary that a statute should be
construed so that as nearly as possible it
will have a uniform application.
Gleasman v. Greater Rockford Airport Auth.,
339 N.E.2d 318, 321 (Ill. Ct. App. 1975).
As we noted above, the circuit court's denial of
Schultz' petition is founded upon a Chapter 19, Stats.,
balancing test analysis, which is inappropriate here
because Schultz has never invoked that chapter.
However, this court will not reverse a correct
decision though the reason for that decision
may have been erroneously expressed.
Mueller v. Mizia,
33 Wis.2d 311, 318,
147 N.W.2d 269, 273 (1967).
Moreover, the question presented here is
one of statutory construction.
The construction of a statute is a question of law as
is the application of a statute to a particular set of
facts; either allows us to review the issue independent
of the circuit court's determination.
Hainz v. Shopko Stores, Inc.,
121 Wis.2d 168, 172,
359 N.W.2d 397, 400 (Ct. App. 1984).[fn5]
By the Court. Order affirmed.
[fn1] We note parenthetically that Section
59.14(2), Stats., provides that "if any such
officer neglects or refuses to comply with
any of the provisions of this section he
shall forfeit five dollars for each day such
[fn2] Every sheriff, clerk of the circuit court,
register of deeds, county treasurer, register
of probate, county clerk and county surveyor
. . . shall open to the examination of any
person all books and papers required to be
kept in his or her office and permit any
person so examining to take notes and copies
of such books, records, papers or minutes. .
.. Section 59.14(1), Stats.
State ex rel. Bilder v. Delavan Township,
112 Wis.2d 539,
334 N.W.2d 252 (1983);
State ex rel. Journal Co. v. County Court,
43 Wis.2d 297,
168 N.W.2d 836 (1969);
In re Estates of Zimmer,
151 Wis.2d 122,
442 N.W.2d 578 (Ct. App. 1989);
C.L. v. Edson,
140 Wis.2d 168,
409 N.W.2d 417 (Ct. App. 1987); and
City of Madison v. Appeals Committee,
122 Wis.2d 488,
361 N.W.2d 734 (Ct. App. 1984).
We here note that the attorney general
contends, on the strength of Zimmer and
Edson, that the Chapter 19, Stats., balancing
test ought to be applied to records which
could be inspected under both Chapter 19 and
Section 59.14, Stats. We distinguish those
In Zimmer, the requester argued a right to
inspect under "sec. 59.14, Stats., together
with various provisions of the open records
law. . .."
151 Wis.2d at 127,
442 N.W.2d at 580.
In Edson, the requester "commenced a mandamus
action under Section 19.37(1)(a), Stats. . ."
140 Wis.2d at 174,
409 N.W.2d at 419.
Here, however, as we have noted, Schultz
pointedly avoided implicating the open
records law under Chapter 19. Zimmer and
Edson are, therefore, inapposite.
[fn4] Because we hold that the request does not
satisfy the requir/ements of Section
59.14(1), Stats., we need not address
Schultz' arguments which speak to the various
exceptions available under that statute.
Similarly, because we conclude that mandamus
did not lie, we need not address his
contentions that the sheriff violated his due
process rights "by his failure to perform his
purely ministerial duties" or that the
circuit court's "application of mandamus was
[fn5] We note in closing that in its amicus brief,
the Wisconsin Counties Association urges this
court to hold that the inspection right under
Section 59.14(1), Stats., does not require
the custodian to photocopy the records and
send them to the requester.
However, the issue is moot in that, given our
holding, it will not have any practical legal
effect upon the existing controversy.
Ziemann v. Village of North Hudson,
102 Wis.2d 705, 712,
307 N.W.2d 236, 240 (1981).
We do not, therefore, reach this issue.