July 18, 2022 – To recover attorney fees under Wisconsin’s public records law, a records requester “must obtain a judicially sanctioned change” in the relationship between the requester and the custodian of the records, the Wisconsin Supreme Court has ruled.
In Friends of Frame Park U.A. v. City of Waukesha, 2022 WI 57 (July 6, 2022), the supreme court held (4-3) that “prevails” as used in the fee-shifting provision of the state public records law is a term of art that means to prevail in a lawsuit as a result of court action.
Justice Brian Hagedorn wrote the majority opinion, joined by Chief Justice Annette Ziegler, Justice Patience Roggensack, and Justice Rebecca Bradley. Justice Jill Karofsky filed a dissenting opinion, joined by Justice Ann Walsh Bradley and Justice Rebecca Dallet.
City Denies Request
On Oct. 9, 2017, Friends of Frame Park, U.A. (Friends) sent a public records request to the City of Waukesha.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
The request asked for copies of any letters of intent or memorandums of understanding or lease agreements between Big Top Baseball and Northwoods League Baseball and the city during the period beginning May 1, 2016 to the then-present.
The Friends is an association made up of people who own land and work in the city and pay taxes to the city and use city parks, including Frame Park. The association made the request because the city planned to bring an amateur baseball team to the city.
Two weeks after the Friends made the request, the city provided the Friends with all the documents that were responsive to the request, except for a draft contract between the city and Big Top Baseball.
The city told the Friends it was withholding the draft contract pursuant to Wis. Stat. section 19.35(1)(a) and 19.85(1)(e) because the contract was still being negotiated.
Friends File Mandamus Action
The use of Frame Park appeared as an item on the Waukesha Common Council agenda for Dec. 19, 2017.
Friends considered the city’s withholding of the draft contract improper, so they filed a mandamus action in Waukesha County Circuit Court under section 19.37(1) on Dec 18, 2017.
In the action, Friends asked the court to order the city to; 1) disclose the draft contract; and 2) pay the association’s attorney fees and other expenses.
On Dec. 20, 2017, the city provided a copy of the draft contract to Friends and said that there was no longer a need to protect its negotiating and bargaining position.
Friends amended its complaint and asked the circuit court to rule that the city had improperly withheld the draft contract. Before trial, the city moved for summary judgment.
The circuit court concluded that the city had properly relied upon sections 19.35(1)(a) and 19.85(1)(e) and granted the city’s motion.
Friends appealed and the Wisconsin Court of Appeals reversed. The city appealed to the supreme court.
‘Causal Nexus’ Test Disfavored
In his opinion for the majority, Justice Brian Hagedorn pointed out that a section of the public records law, section 19.37(2)(a), requires a court handling a mandamus action filed under section 19.37(1) to award reasonable attorney fees to a requester “if the requester prevails in whole or in substantial part in any action filed under sub. (1) relating to access to a record or part of a record under [Wis. Stat. section] 19.35(1)(a).”
Hagedorn explained that the Wisconsin Court of Appeals has generally held that a party “prevails” in an action seeking the release of public records if a causal nexus exists between the requester having brought the action and the defendant providing the requested records.
Justice Hagedorn noted the Wisconsin Court of Appeals previously based that holding on a federal case that interpreted a provision of the federal Freedom of Information Act – a provision that specified that attorney fees may be awarded to a party that “has substantially prevailed.”
In that case, Justice Hagedorn wrote, the federal court held “that a plaintiff is a ‘prevailing party’ if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.’”
But subsequent federal court decisions have not adopted the causal nexus test, Hagedorn explained.
In fact, he pointed out, a U.S Supreme Court decision interpreting the term “prevailing party” in the fee-shifting provisions of the federal Fair Housing Amendments Act and the Americans with Disabilities Act rejected the “causal nexus” test and held that “prevailing party” means a party that has been awarded relief by a court.
‘Prevailing’ is Term of Art
Several statutes enacted one year after Wisconsin became a state in 1848 tied prevailing in action to victory in a judicial proceeding, Justice Hagedorn explained.
Furthermore, Hagedorn wrote, “prevails” in section 19.37(2)(a) is a term of art, and when the legislature uses a term of art with a widely accepted meaning “we generally assume the legislature meant the same thing.”
“If the idea that party could prevail in a lawsuit in the absence of court action was unknown in Wisconsin when this statute was adopted, we should not read that interpretation into the statute now given the absence of any evidence that it was understood to have that meaning when enacted … Absent a judicially sanctioned change in the parties’ legal relationship, attorney’s fees are not recoverable under section 19.37(2)(a),” Justice Hagedorn wrote.
Concurrence: Court Misspoke in Manitowoc County
In her concurrence, Justice R.G. Bradley explained that because the city’s disclosure of the draft contract mooted Friends’ mandamus action, there was no need to address the merits of the public records claim.
She also pointed out that the supreme court was not bound to follow the court of appeals decisions that established the causal nexus test.
Justice Bradley acknowledged that in Manitowoc County v. Samuel J.H., 2013 WI 68, 349 Wis. 2d 202, 833 N.W.2d. 109, the supreme court held that the doctrine of stare decisis applied to court of appeals decisions. But, she argued, deferring to court of appeals decisions conflicts with the supreme court’s constitutional role as the last word on issues of state law.
“Referencing stare decisis in the context of court of appeals precedent has created confusion with no benefit,” Justice R.G. Bradley wrote. “We should take this opportunity to unequivocally correct this court’s misspeak in Manitowoc County.”
Chief Justice Ziegler and Justice Roggensack joined the concurrence.
Dissent: Majority ‘Eviscerates’ Provision
In her dissent, Justice Karofsky argued that the majority opinion “eviscerates the mandatory fee-shifting provisions integral to [the public records law].”
Justice Karofsky argued that the majority’s holding will leave records requesters facing a “no-win scenario” when their records requests are denied.
“They can either acquiesce to the government’s potentially unlawful withholding of the record, or they can bring a mandamus action to enforce their right to the record at the risk of substantial legal fees,” Karofsky wrote.
It was error, Justice Karofsky argued, for the majority to conclude that because a phrase constitutes a term of art, every word in the phrase, when used separately, has the same special meaning as the term of art as a whole.
Specifically, she argued, the legislature used the phrase “the requester prevails,” and not “prevailing party,” in section 19.37(2)(a).
“The use of ‘requester’ rather than ‘party’ is instructive, as ‘party’ connotes litigation while ‘requester’ places the phrase in broader context of the records request,” Justice Karofsky wrote.
“Thus, the test derived from the term of art ‘prevailing party,’ which requires a judicially sanctioned change in a litigant’s position, does not fit the specific language in Wisconsin’s statutes.”
Because the term “the requester prevails” lacks a statutory definition, Karofksy argued, it should be given its plain and ordinary meaning, and “prevail” is commonly defined as “to succeed.”
Keep Causal Nexus Test
The supreme court should continue to employ the causal nexus test, Justice Karofsky argued, because the test encourages timely compliance with the state’s public records law and promotes judicial efficiency, because it eliminates the need to adjudicate records requests mooted by the release of records.
By jettisoning the test, Karofsky wrote, the supreme court “creates a perverse incentive for the government to strategically delay the release of records.”
“If public records cases can be mooted out by the government’s voluntary release of a record, then the government could escape any sanction for unlawfully delaying the record’s release so long as the government releases the record at any point before the court orders the release,” Karofsky wrote.
“Although the record ultimately gets released, the requester is left paying potentially hefty attorney fees and costs for a record he or she was already entitled to receive.”