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    Wisconsin Lawyer
    October 12, 2022

    Supreme Court Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).

    Daniel D. Blinka & Thomas J. Hammer

    Civil Procedure

    Pleadings – Anonymous Plaintiffs

    John Doe 1 v. Madison Metro. Sch. Dist., 2022 WI 65 (filed 8 July 2022)

    HOLDING: The circuit court’s decision to allow the plaintiffs to proceed with pseudonyms, but not to prevent opposing attorneys from knowing their identity, was within the circuit court’s discretion.

    SUMMARY: The Madison Metropolitan School District (the District) adopted a document titled “Guidance & Policies to Support Transgender, Non-binary & Gender Expansive Students” (the Policy), which among other things provided that students are to be called by their affirmed name and pronouns regardless of parent or guardian permission to change their name and gender in District systems; District staff will refer to students by their affirmed names and pronouns; and school staff must not disclose any information that might reveal a student’s gender identity to others, including parents or guardians and other school staff unless legally required to do so or unless the student has authorized such disclosure (see ¶ 3).

    A group of parents sued the District alleging that the Policy violates their right to parent their children, citing article I, section 1 of the Wisconsin Constitution, and their right to exercise their religious beliefs under article I, section 8 of the Wisconsin Constitution (see ¶ 4). Contemporaneous with filing their complaint, the parents moved to proceed using pseudonyms.

    The circuit court granted in part the parents’ motion to proceed with pseudonyms, concluding that they made a “demonstrable factual showing that … would their names be disclosed, they would likely be subject to threats and intimidation, which would be wholly inappropriate and frustrate the orderly functioning of the court case” (¶ 6). It held, however, that the parents “must disclose their identities to the Court and attorneys for the litigants” (id.).

    In an interlocutory appeal, the Wisconsin Court of Appeals affirmed the circuit court. See 2021 WI App 60. In a majority opinion authored by Justice Hagedorn, the Wisconsin Supreme Court also affirmed.

    The main issue before the supreme court was whether the circuit court erred in ordering the parents to file a sealed complaint with their names and addresses that would be viewed only by the circuit court and the attorneys. The supreme court concluded that “the circuit court’s decision to withhold the parents’ identities from the public and the District, but not the District’s attorneys, was well within its discretion. As the District identified, resolving the parents’ claims through the courts could depend on a number of significant legal questions which can be evaluated only if the District’s attorneys know the parents’ identities” (¶ 24).

    For example, without knowing the parents’ identities, it is unclear how the District’s lawyers would inquire whether the parents have a sincerely held religious belief regarding this aspect of their children’s upbringing (see ¶ 26). Further, the District’s lawyers cannot know if their representation of the District creates a conflict of interest with any of the parents without knowing who the parents are (see ¶ 25). Responding to the parents’ fear that the District’s lawyers will intentionally or unintentionally violate the court’s protective order and expose them to the risks they identified, the supreme court noted that attorneys have a duty to follow court orders (see ¶ 27).

    Although the parents framed their arguments around whether Wisconsin permits totally anonymous litigation, the supreme court did not decide that question because it did not need to. “We leave for another day whether a future litigant can proceed anonymously in a case. Instead, we conclude that the circuit court’s decision to allow the parents to proceed pseudonymously, but not to prevent opposing attorneys from knowing their identity, was well within the circuit court’s discretion” (¶ 29).

    Justice Roggensack filed a dissenting opinion that was joined in by Chief Justice Ziegler and Justice R.G. Bradley.

    Health Law

    COVID-19 – Public Health Orders

    Becker v. Dane Cnty., 2022 WI 63 (filed 8 July 2022)

    HOLDINGS: The several holdings of the court are summarized in the numbered paragraphs below.

    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.

    SUMMARY: This case concerns challenges to public health orders (for example, requiring face coverings, limiting or forbidding gatherings, limiting businesses’ indoor capacity) aimed at curbing the spread of COVID-19. The orders were issued by the director of a joint health department created by Dane County and the city of Madison acting “pursuant to her authority under state law that directs a local health officer to ‘promptly take all measures necessary to prevent, suppress and control communicable diseases,’ ‘do what is reasonable and necessary for the prevention and suppression of disease,’ and ‘forbid public gatherings when deemed necessary to control outbreaks or epidemics.’ Wis. Stat. § 252.03(1)-(2)” (¶ 4). Also challenged in this case was a Dane County ordinance making public health orders enforceable by a civil citation.

    In those portions of an opinion authored by Justice Karofsky that were joined by Justice A.W. Bradley, Justice Dallet, and Justice Hagedorn to form a majority, the court concluded as follows:

    1) With regard to whether the authority granted by the provisions of Wis. Stat. section 252.03 includes the authority to act via the issuance of “orders,” the majority looked to the statute’s language, context, and history and concluded that the statutory authority to “do what is reasonable and necessary for the prevention and suppression of disease” and to “take all measures necessary to prevent, suppress and control communicable diseases” authorizes local health officers to act via the issuance of orders (¶ 22).

    2) The Dane County ordinance is not preempted by state law.

    3) The local health officer’s authority to issue enforceable public health orders pursuant to Wis. Stat. section 252.03 and the Dane County ordinance “does not run afoul of our constitutional separation of powers” (¶ 2).

    Justice Hagedorn filed a concurring opinion. Justice R.G. Bradley filed a dissent that was joined in by Chief Justice Ziegler and Justice Roggensack.

    Public Records

    Attorney Fees – “Prevailing” Parties

    Friends of Frame Park U.A. v. City of Waukesha, 2022 WI 57 (filed 6 July 2022)

    HOLDING: To “prevail[] in whole or in substantial part” in a public records case and thus entitle the requester’s lawyer to attorney fees, the requester must obtain a judicially sanctioned change in the parties’ legal relationship.

    SUMMARY: The city of Waukesha denied access to a draft contract with a private entity to protect its negotiating and bargaining position and until it consulted with the Waukesha Common Council. The contract related to the city’s plans to bring amateur baseball to Waukesha.

    The plaintiffs filed a mandamus action under Wis. Stat. section 19.37(1) seeking production of the draft contract and payment of attorney fees and other expenses. Two days later, after a common council meeting, the city turned over the draft contract to the requesters. The plaintiffs then amended their complaint, asking the circuit court to hold that the city improperly withheld the draft contract. The circuit court granted summary judgment to the city and denied attorney fees for plaintiffs’ counsel. The plaintiffs appealed, and in a published opinion, the court of appeals reversed. See 2020 WI App 61.

    The first issue in this case related to attorney fees in public records cases. The parties disagreed over the proper test to determine whether the requester, in the statute’s words, “prevail[ed] in whole or in substantial part” and is therefore entitled to attorney fees. The court of appeals has generally held that a party “prevails” in a public records action if there is a causal nexus between the requester bringing the action and the defendant providing the requested records (¶ 18). In this case, the supreme court opted for a different test.

    Justice Hagedorn authored an opinion that garnered the partial support of Chief Justice Ziegler, Justice Roggensack, and Justice R.G. Bradley. These four justices agreed that to “prevail[] in whole or in substantial part” means “the party must obtain a judicially sanctioned change in the parties’ legal relationship” (¶ 3). This approach follows the lead of the U.S. Supreme Court in Buckhannon Board & Care Home Inc. v. Virginia Department of Health & Human Resources, 532 U.S. 598 (2001) (a case involving the meaning of “prevailing party” in various federal fee-shifting statutes), in which the Court concluded that the term “prevailing party” refers to “one who has been awarded some relief by the court” (¶ 19).

    Writing for himself alone, Justice Hagedorn went on to reach the merits of this case and concluded that the city did not violate the public records law by withholding the draft contract (see ¶ 37). However, the justices who joined him in articulating the proper test to be used to determine whether the requester of public records has prevailed in the matter did not join him in reaching the merits. Rather, in a concurring opinion, Justice R.G. Bradley, joined by Chief Justice Ziegler and Justice Roggensack, concluded that this case is moot, obviating any need to address the merits (see ¶ 43).

    Justice Karofsky filed a dissenting opinion that was joined in by Justice A.W. Bradley and Justice Dallet.

    » Cite this article: 95 Wis. Law. 48-49 (October 2022).

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