STATE EX REL. LANK v. RZENTKOWSKI,
141 Wis.2d 846 (Ct.App. 1987)
416 N.W.2d 635
848 849 850 851 852 853 854 855 856 857 858
STATE of Wisconsin EX REL. Dannette H. LANK
and the Milwaukee Metropolitan Sewerage
District, a municipal body corporate,
Louise RZENTKOWSKI, in her official capacity as
custodian of records for the City of Mequon,
Court of Appeals No. 87-0718.
Submitted on briefs August 26, 1987. Ä
Decided October 7, 1987.
[fn] Petition to review denied.
APPEAL from an order of the circuit court for Ozaukee county:
JOSEPH D. McCORMACK, Judge. Reversed and cause remanded with
On behalf of the petitioners-appellants, the cause was submitted
on the briefs of Michael J. McCabe and David S. Branch of
Milwaukee Metropolitan Sewerage District.
On behalf of the respondent the cause was submitted on the brief
of Truman Q. McNulty, Thomas E. Griggs and Daniel M. Leep of
Mulcahy & Wherry, S.C., of Milwaukee.
Before Scott, C.J., Brown, P.J., and Nettesheim, J.
The issue in this case is whether the Milwaukee Metropolitan
Sewerage District (MMSD) is entitled to certain public records in
the custody of Louise Rzentkowski, the city clerk for the City of
Mequon (Mequon), pursuant to Wisconsin's Public Records Law,
Section 19.31 et seq., Stats.
Because these records pertained to certain other pending
litigation in Waukesha county involving MMSD and certain
municipalities, including Mequon,[fn1] and because the discovery
cutoff deadline in that action had expired before the demand for
the records was made in this case, the circuit court dismissed
MMSD's mandamus action seeking to compel production of the
We conclude that the public records law entitles MMSD to the
Therefore, we reverse the judgment of the circuit court and
remand with directions to issue the writ of mandamus against the
MMSD is a quasi-municipal corporation which provides sewerage
treatment and disposal services to approximately twenty-eight
Milwaukee area municipalities.
MMSD is currently engaged in a fifteen-year water pollution
abatement program designed to upgrade and rehabilitate the
district's sewerage system.
In an effort to recover the capital cost for the project, MMSD
sought to levy property value-based capital charges against
Mequon and the other municipalities which MMSD services outside
In late 1979, the Mequon common council created a Blue Ribbon
Commission to study and evaluate the impact of MMSD's proposed
program on the city.
The commission collected and evaluated data and met with
representatives of the district concerning the cost impact of the
program upon the city and its citizens.
The minutes and other documents used or created by this
commission are the subject of this mandamus action by MMSD.
In February 1983, Mequon and its sister municipalities commenced
the Waukesha county action challenging MMSD's proposed capital
cost recovery procedures.[fn3] The scheduling order in that
action provided a discovery cutoff date of May 31, 1986.
Eight months after this deadline, MMSD wrote a letter to Mequon
seeking production of the minutes and other documents created or
used by the commission.
The request was made "[p]ursuant to the State Open Records Acts,
19.31 et seq. . . . ."
This request came less than three months before the then
scheduled trial date in the Waukesha county action.
After consultation with its counsel, Mequon inquired of MMSD
whether the request was related to the Waukesha county
MMSD did not directly respond to this inquiry. Mequon then
formally denied the request, citing the pending litigation
between the parties.
MMSD responded with this mandamus action seeking to compel the
production of the commission's records.
The trial court, in dismissing MMSD's mandamus action, concluded
that ordering the production of the records after the expiration
of discovery deadlines would constitute an impermissible "end
run" around the scheduling order in the Waukesha county action.
The court concluded that "the orderly administration of justice
and the processing of cases would be severely hampered."
The court also expressed concern that:
"the principal lawsuit would be bogged down by reason of claims
that it could not go forward until collateral matters were
litigated in other courts and the supervising court over the
principal lawsuit would lose all control over what action the
parties were taking to obtain information from one another."
A writ of mandamus is a discretionary writ in that it lies within
the sound discretion of the trial court to either grant or deny.
Miller v. Smith, 100 Wis.2d 609, 621, 302 N.W.2d 468, 474 (1981);
State ex rel. North v. Goetz, 116 Wis.2d 239, 243, 342 N.W.2d
747, 749 (Ct. App. 1983).
An abuse of discretion occurs when the discretionary
determination is premised upon an erroneous view of the law.
North at 245, 342 N.W.2d at 750.
The issue in this case is whether the trial court correctly
concluded that the public records law did not apply to this fact
situation, thus rendering correct its exercise of discretion that
the writ of mandamus should not issue.
Whether a statute applies to a given set of facts presents a
question of law.
State v. Kennedy,
134 Wis.2d 308, 319,
396 N.W.2d 765, 769 (Ct. App. 1986).
Such questions are decided independently without deference to the
trial court's decision. Id.
A cardinal rule of statutory construction or application is that
an interpretation that effects the purpose of an act is favored
over one that defeats the act's manifest object.
Harbick v. Marinette County, 138 Wis.2d 172, 175-76, 405 N.W.2d
724, 726 (Ct. App. 1987).
The legislature has expressly declared the policy underlying the
public records law:
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 employes who
Further, providing persons with such information is declared to
be an essential function of a representative government and an
integral part of the routine duties of officers and employes
whose responsibility it is to provide such information.
Sec. 19.31, Stats.
We begin our analysis by recognizing, as did the trial court, a
number of principles which apply in a public records case: a
presumption exists that the public has a right to inspect public
records, Newspapers, Inc. v. Breier, 89 Wis.2d 417, 426, 279
N.W.2d 179, 183-84 (1979); Oshkosh Northwestern Co. v. Oshkosh
Library Bd., 125 Wis.2d 480, 482, 373 N.W.2d 459, 461 (Ct. App.
1985), the denial of public access is contrary to the public
interest and is allowed only in an exceptional case.
Hathaway v. Joint School District No. 1,
116 Wis.2d 388, 396,
342 N.W.2d 682, 686 (1984);
Oshkosh Northwestern at 482, 373 N.W.2d at 461, and exceptions
to the general rule of disclosure must be narrowly construed,
Hathaway at 397, 342 N.W.2d at 687.
Mequon contends that language of Section 19.35(1)(j), Stats.,
constitutes an exception to the requirement of disclosure.
This section provides:
Notwithstanding paragraphs 19.35(1)(a) to
19.35(1)(f), a requester shall comply with
any regulations or restrictions upon access
to or use of information which are
specifically prescribed by law.
Mequon also contends that because Section 19.35(1)(a) through (f)
each contain the introductory language "[e]xcept as otherwise
provided by law," a legislative exception to the general
requirement of disclosure is provided.
However, the discovery statutes, Chapter 804, Stats.,
nowhere specifically deal with public records.
The fact that the discovery statutes could be utilized
to obtain public records does not alter this fact.
As such, the rule of statutory construction that the specific
statute will control over the general, Liles v. Employers Mut.
Ins., 126 Wis.2d 492, 504, 377 N.W.2d 214, 220 (Ct. App. 1985),
leads us to conclude that the legislature has not carved out
an exception to the requirement of disclosure when the
public records sought are germane to pending litigation
between the requester and the public entity.
We so conclude particularly bearing in mind the
admonishment of our supreme court that exceptions
to the general rule of disclosure are to be
narrowly construed and allowed only
in exceptional cases.
Hathaway, 116 Wis.2d at 396-97, 342 N.W.2d at 686-87.
A measure of practicality also enters into
our consideration of this issue.
Mequon would exempt private and citizen litigants from
the right to disclosure of public records if the
materials sought potentially relate to a matter
under litigation between the parties.
But circumvention of the statute under such an interpretation
could be accomplished with ease and impunity.
Nothing in Mequon's argument would preclude a person,
not a party to the underlying litigation, from rightfully
demanding the materials and then turning them over to
the litigants who otherwise would be denied them.
The interpretation urged by Mequon would encourage
surreptitious circumventing of the statute.
We are hesitant to adopt an interpretation which
reduces a law to such unenforceable stature and
holds it out to ridicule rather than respect.
In light of this conclusion, we address the concerns voiced by
the trial court concerning the effect of permitting discovery
upon the trial of the underlying action Ä in this case the
Waukesha county action.
While the trial court properly addressed these matters,
we think its concerns are somewhat overstated.
Parties to litigation routinely obtain material and
information relevant to the proceeding by
methods beyond the discovery process.
The fact that such information is obtained by a nondiscovery
process does not mean the party is not entitled to it.
Indeed, in most instances, the opposing party would
not even be in a position to prevent it.
The only reason this issue surfaces in this case
is because the source of the information sought
happens also to be a party in the underlying
action in Waukesha county.
This does not, however, operate to make the method by
which MMSD seeks to obtain these public records under
Chapter 19, Stats., the equivalent of discovery under
Chapter 804, Stats., and therefore subject
to the discovery deadlines.
It is critical to note that nothing in our holding here directly
affects the scheduling order in the Waukesha county action nor
the right of the trial court in that matter to enforce it.
While the ability to obtain these materials could conceivably
prompt a request by MMSD to seek some modification of the
scheduling order, such a matter is properly left to the trial
court in that action and the resolve with which that trial court
chooses to enforce its scheduling order.
The fact remains, for purposes of this action, that while MMSD's
public records request is certainly prompted by a desire to
obtain information possibly relevant to the Waukesha county
action, it is not formal discovery within the meaning of Chapter
Our conclusion, we acknowledge, brings us into conflict with an
Attorney General's opinion which the trial court cited in support
of its holding, 74 Op. Att'y Gen. 1 (1985).[fn4] While such
opinions are helpful in resolving legal issues, we note that they
stand only as persuasive authority as to the meaning and purposes
See State v. Wachsmuth,
73 Wis.2d 318, 323,
243 N.W.2d 410, 413 (1976);
116 Wis.2d at 244, 342
222 N.W.2d at 750.
Here, we respectfully disagree with
the Attorney General's opinion.
We do so not only on the basis of our reasoning already
recited, but also upon a flaw in the opinion itself.
The Attorney General correctly notes the general rule that
"[a]n exception to the general right of access to
public records must be established specifically by
statute or common law limitation."
74 Op. Att'y Gen. at 2.
The opinion goes on to cite various examples of such specific
exceptions but then observes,
"I am not aware of any specific statute or common law
limitation which generally exempts records from the
public records law because they relate to pending
litigation and are subject to civil discovery."
Id. Yet, even in the absence of such specificity concerning
public records, the opinion concludes that such
records are subject to discovery rules.
We reject this reasoning of the Attorney General and conclude
that it is of no persuasive effect in this case.[fn5]
Finally, Mequon argues that MMSD's mandamus action
was properly rejected by the trial court because
MMSD had another adequate remedy at law.
State ex rel. Morgan v. Risjord,
177 Wis. 290, 293,
188 N.W. 495, 496 (1922).
Mequon reasons that MMSD could have sought leave
of the trial court in the Waukesha county action
to conduct discovery into the requested records.
However, Mequon never claimed in the trial court
that some other adequate legal remedy was available
to MMSD in order to obtain these records.
Such a failure operates as a waiver in a mandamus action.
Law Enforcement Standards Bd. v. Village of Lyndon Station,
101 Wis.2d 472, 496,
305 N.W.2d 89, 101 (1981).
Alternatively, we question whether the remedy at law suggested
by Mequon satisfies the requirements of mandamus law.
Such a remedy must not only be adequate,
but also must be plain and complete.
State ex rel. Thomas v. State,
55 Wis.2d 343, 349,
198 N.W.2d 675, 678-79 (1972).
We have previously noted that the judge assigned to the
Waukesha county action is entitled to enforce the
scheduling order in that action with resolve.
The court in that action could be well within its discretionary
rights in denying an application by MMSD for
relief from the discovery order.
In the face of Section 19.37(1), Stats., which expressly provides
mandamus as the remedy for a failure to deliver up a public
record for inspection, we conclude that the alternative
remedy suggested by Mequon is neither plain, adequate
or complete within the meaning of Thomas.
By the Court. Order reversed and cause remanded with directions.
[fn1] The Waukesha county action,
Case No. 83-CV-296, is entitled:
City of Brookfield,
Village of Butler,
Village of Menomonee Falls,
City of Mequon,
City of New Berlin,
Village of Elm Grove,
City of Muskego,
Village of Germantown,
Village of Thiensville,
Richard E. Enssling,
Donald Wenzel and
Milwaukee Metropolitan Sewerage District.
[fn2] We have examined the record to determine whether remand
in this case should be for purposes of further
proceedings rather than for issuance of the writ.
Although the pleadings arguably draw some collateral
issues, an examination of the proceedings at trial
reveals that the only issue placed before the circuit
court was that which forms the basis for this appeal.
No other issues remain to be tried between the parties.
Therefore, we conclude that a remand with directions
to issue the writ is appropriate.
[fn3] The municipalities are challenging MMSD's attempt to
obtain and exercise authority to levy charges against
them by one of two mutually exclusive means:
(1) expanding MMSD's boundaries to include the
municipalities and levy property taxes
(2) if the municipalities remain outside MMSD's
boundaries, assessing capital charges against
the municipalities based on their respective
property valuations rather than on a
[fn4] Although we disagree with the trial court's conclusion,
we do not accept MMSD's argument that the court
improperly relied upon the Attorney General's opinion.
We do not see the court's decision as relying upon
the opinion in the sense of being bound by it.
In fact, the court's decision correctly
acknowledges that such opinions are
merely persuasive in certain instances.
Rather, we read the court's decision as stating
that it found itself in agreement with the analysis
of the issue by the Attorney General.
[fn5] We also disagree that the United States Supreme Court
interpretations of the Freedom of Information Act
(FOIA) control this question.
We acknowledge that the Wisconsin appellate courts have
looked to federal court decisions interpreting the FOIA
as "persuasive authority" for interpreting Wisconsin's
open records law.
See Racine Educ. Ass'n v. Board of Educ.,
129 Wis.2d 319, 326,
385 N.W.2d 510, 512 (Ct. App. 1986).
However, the claim that United States v. Weber Aircraft
Corp., 465 U.S. 792 (1984), controls the issue here is
Weber held that certain material could not be
discovered because privileged, therefore falling
within an express exemption of the FOIA.
Mequon's expansive reading of Weber is not warranted.