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    Wisconsin Lawyer
    April 19, 2019

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer

    Public Records Law

    “Authority” Having Custody of Records – Quasi-Governmental Corporations

    State ex rel. Flynn v. Kemper Ctr. Inc., 2019 WI App 6 (filed 29 Jan. 2019) (ordered published 27 Feb. 2019)

    HOLDING: Defendant Kemper Center Inc. is not a quasi-governmental corporation within the meaning of Wisconsin’s public records law.

    SUMMARY: Kemper Center was incorporated on July 2, 1975, as a Wisconsin nonstock corporation. The corporation was formed by alumnae of Kemper Hall, a private all-girls boarding school in Kenosha that had closed. According to Kemper Center’s articles of incorporation, its stated purpose was to raise funds to allow the city of Kenosha or Kenosha County to purchase and maintain the former Kemper Hall property.

    Kenosha County purchased Kemper Hall in 1977. No county funds were used for the purchase. Instead, the $225,000 purchase price was paid with $117,789 in funds raised by Kemper Center. The remainder of the purchase price came from two grants to the county.

    The Kemper Hall property was conveyed directly to the county by the religious corporation that had owned and operated the school. On the same day, the county executed a lease agreement with Kemper Center.

    Under the terms of the lease, Kemper Center pays the county one dollar in annual rent and has the right to use the property, which consists of 17 acres and contains a number of valuable historic buildings and an arts center. Kemper Center has a right to use the property as a “special purpose area” dedicated to historic preservation, educational and cultural programs, and individual and group activities. Kemper retains all fees, rental income, and other generated revenue but is responsible for operational and maintenance costs. The county’s grants to Kemper Center have totaled nearly $3 million since 1978.

    A county resident submitted to Kemper Center a request for disclosures under Wisconsin’s public records law. She sought documents regarding Kemper’s formation and tax-exempt status, employee work records, meeting minutes, records regarding certain events held at the facility, and documents regarding Kemper’s preferred caterer.

    Kemper denied the request, asserting that it was not a quasi-governmental corporation subject to the public records law. The circuit court concluded that Kemper Center is subject to the public records law. In an opinion authored by Judge Hruz, the court of appeals reversed.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    The public records law applies to “authorities” having custody of a record; this includes “quasi-governmental corporation[s].” See Wis. Stat. § 19.32(1). The term “quasi-governmental corporation” is not defined by the statute. However, the supreme court has held that an entity is such a corporation if, based on the totality of the circumstances, it resembles a governmental corporation in function, effect, or status. See State v. Beaver Dam Area Dev. Corp., 2008 WI 90, 312 Wis. 2d 84, 752 N.W.2d 295.

    In the Beaver Dam decision, the court looked to five factors that guided its evaluation of whether the entity in question was a quasi-governmental corporation: “(1) whether the entity’s funding comes from predominately public or private sources; (2) whether the entity serves a public function; (3) whether the entity appears to the public to be a government entity; (4) the degree to which the entity is subject to government control; and (5) the amount of access governmental bodies have to the entity’s records” (¶ 15).

    Applying the five factors listed above, the appellate court concluded that Kemper is not a quasi-governmental corporation subject to the public records law. Said the court: “Under the circumstances here, the revenue generated by Kemper Center, Inc.’s use of Kemper Park is not properly treated as a ‘subsidy’ by the County, and therefore the bulk of Kemper Center, Inc.’s funding comes from non-County sources. Kemper Center, Inc.’s functions are not clearly public or private in nature. Rather, its purposes are commonly achieved by both public and private entities. Kemper Center, Inc. does not appear to the public to be an arm of County government, nor does the County wield any significant degree of control over Kemper Center, Inc.’s operations. Although Kemper Center, Inc. is required to make its books and records available to the County, on balance the application of the Beaver Damfactors compels the conclusion that Kemper Center, Inc. is not a quasi-governmental corporation” (¶ 52).


    Safe Place – Repose – Independent Contractor Rule – Costs

    Soletski v. Krueger Int’l Inc., 2019 WI App 7 (filed 15 Jan. 2019) (ordered published 27 Feb. 2019)

    HOLDINGS: The statute of repose barred the plaintiff’s safe-place claim, his negligence claims were barred by the independent contractor rule, and the defense was entitled to its costs even though the objections were not resolved within the 30-day statutory period.

    SUMMARY: The plaintiff worked for a professional cleaning company and was seriously injured while cleaning a building owned by Krueger International Inc. The injuries occurred when a scissor lift, owned by Krueger, overturned while the lift was on an unmarked ramp. The plaintiff brought a variety of claims. The circuit court granted summary judgment in favor of the defense.

    The court of appeals affirmed in an opinion authored by Judge Seidl. First, the plaintiff’s safe-place claim was barred by the “builder’s statute of repose,” Wis. Stat. section 893.89. At bottom, the plaintiff’s claims about the “unmarked and unguarded ramp” ran to alleged structural defects, not unsafe conditions; hence, they were barred (¶ 14).

    The court considered and rejected multiple arguments, including the maintenance exception to the statute of repose. The “mere fact” that the plaintiff was engaged in building maintenance did not trigger the exception. The plaintiff forfeited the argument that the owner had negligently maintained the ramp by not raising the argument in the trial court (see ¶ 23).

    The independent contractor rule barred the plaintiff’s negligence claims. The rule provides that an independent contractor’s employee may recover against a principal employer for injuries caused by the principal employer’s affirmative acts of negligence (see ¶ 27). Most of the plaintiff’s claims sounded in omissions, not in affirmative acts. Although Krueger supplied the lift that toppled over, there was no proof the lift was defective (see ¶ 29).

    Finally, although Krueger timely filed its request for costs, the trial judge did not resolve the objections until nearly three months later, well after the 30-day period set forth in Wis. Stat. section 806.06(4). The court held, however, “that a prevailing party’s timely filing of its bill of costs within thirty days of the entry of judgment satisfies the time limit set forth in § 806.06(4)” (¶ 35).

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