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, Petitioner-Appellant, v. 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.

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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,

corporation counsel.



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.



BROWN, J.



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:
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Yo!  Sheriff,



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

officers."



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

request.[fn1]



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."



Schultz appealed.



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.
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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

them.



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).
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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

          reasonable administrative

          regulations. . ."



State ex rel. Bilder v. Township of Delavan,

112 Wis.2d 539, 553,

334 N.W.2d 252, 260 (1983)



quoting



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.



Id.



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 disagree.



 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. . ."
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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]
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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

keep company."



See The Random House Dictionary of the

English Language 1048 (2d ed. 1987).
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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

dictionary.



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

engender.[fn4]



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

     official duties.
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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.



See



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).
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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.



See



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.



See



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

          noncompliance continues."



[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.



[fn3]     See



          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

          cases.



          In Zimmer, the requester argued a right to

          inspect under "sec. 59.14, Stats., together

          with various provisions of the open records

          law. . .."



          Zimmer,

          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. . ."



          Edson,

          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

          erroneous."







[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.



          See



          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.
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