Jan. 11, 2024 – A corporation is entitled to voting eligibility forms created in guardianship proceedings because the forms are public records whose disclosure is not outweighed by public policy concerns, the Wisconsin Court of Appeals has held.

The ruling by the Court of Appeals District II in Wisconsin Voters Alliance v. Secord, 2023AP36 (Dec. 27, 2003) conflicts with a ruling by the Court of Appeals District IV in a similar lawsuit brought by the Wisconsin Voters Alliance (WVA).

Records Request

On June 28, 2022, Wisconsin Voters Alliance (WVA) sent a public records request to Walworth County probate register Kristina Secord. WVA asked for the name, address, and date of birth for every ward under a guardianship in the county.

WVA cited Wis. Stat. section 54.75 in making its request.

That statute specifies that court records “pertinent to” a finding of incompetence are closed except as provided in section 51.30 or 55.22, or under a court order, but that: 1) the fact a person has been found incompetent; and 2) contact information for the guardian are disclosable to a person who demonstrates a need for that information.

Under section 54.25(2)(c)(1)g, a circuit court has the authority to declare that a person lacks the capacity to register to vote or vote, “if the court finds that the [person] is incapable of understanding the objective of the elective process.”

Elections Forms Sought

On July 26, 2022, WVA contacted Secord again, asking for all guardianship orders in the county that were in effect from Jan. 1, 2016, to the present, for wards with no voting rights, along with the wards’ name, address, date of birth, and other information.

WVA also asked for copies of notices of voting eligibility (NVE) forms sent by the county to the Wisconsin Elections Commission (WEC).

Mandamus Petition Dismissed

Also on July 26, WVA filed a writ of mandamus with the Walworth County Circuit Court.

WVA claimed that the information it had requested was intended to be made public. WVA also claimed that, if section 54.75 applied to records that it sought, it was subject to the exception to closing documents under that section.

The circuit court granted Secord’s motion to dismiss for failure to state a claim.

WVA appealed.

Fair Election Concerns

Judge Maria Lazar began her opinion for the majority by noting that under section 54.25(2)(c)1.g, a circuit court in a guardianship proceeding is required to communicate an individual’s ineligibility to vote to the Wisconsin Elections Commission (WEC) and each individual voting precinct, to prevent ineligible voters from voting.

Judge Lazar also noted that WVA claimed that the list of ineligible voters listed in the public database maintained by WEC did not match the number of wards who were declared by circuit courts to be ineligible to vote. 

“Every citizen of this state has the right to discern where this error … lies because left unaddressed, it risks each citizen’s right to have his or her vote counted in the course of a fair election,” Lazar wrote.

Clear Legal Right to Forms

Judge Lazar then concluded that NVE forms were public records subject to disclosure, as the presumption of openness contained in the state’s public records law had not been overcome by any other public policy regarding the NVE forms.

The general public policy of protecting the privacy of persons deemed incompetent and adjudicated as wards “is expressly outweighed by the legislature’s mandate that voting ineligibility determinations are to be publicly communicated to local officials or agencies through WEC … and the public in general,” Lazar wrote.

Judge Lazar also pointed out that WEC published the information contained in the NVE forms.

“Given the public status of the Notices, it is unreasonable for Secord to assert that the Notices are ‘closed’ public records that may never be released to the public,” Lazar wrote.

Judge Lazar concluded that the circuit had erroneously dismissed WVA’s petition for mandamus, because WVA had demonstrated a clear legal right to obtain the NVE forms and Secord had failed to overcome WVA’s contention that it had no other adequate remedy at law.

Lazar also concluded that, alternatively, WVA had demonstrated that it had a need for the NVE forms under section 54.75.

“If maintaining accurate voter lists – as statutorily required by the legislature – is not a sufficient need, we are hard-pressed to articulate another,” Judge Lazar wrote.

Lazar Concurrence: Reynolds Distinguishable

Judge Lazar wrote a concurrence to explain why the Court of Appeals District II didn’t follow the decision of the Court of Appeals District IV in Wisconsin Voters Alliance v. Reynolds, 2022AP1749 (Nov. 9, 2023), a similar lawsuit filed in Juneau County.

In Reynolds, the Court of Appeals District IV held that WVA was not entitled to the NVE forms because, under section 54.75, the forms were “pertinent to the finding of incompetency” and were thus closed.

But Lazar concluded that just because an NVE is contained in a circuit court’s guardianship file does not make it a record “pertinent to the finding of incompetency.”

Judge Lazar pointed out that the NVE is completed and communicated only after a finding of incompetency has been made in a guardianship proceeding.

She also reasoned that the completion of an NVE form is a consequence of a circuit court’s finding and noted that circuit courts may use NVE forms in non-guardianship proceedings.

Judge Lazar also concluded that in Reynolds, the issues were different from those raised in the instant case.

Dissent: Reynolds Controls

Judge Lisa Neubauer argued in her dissent that the Reynolds was procedurally indistinguishable from the instant case and therefore was controlling.

Neubauer pointed to the following similarities in the cases:

• WVA filed a mandamus action against the county probate register seeking disclosure of NVE forms and information;

• the circuit courts dismissed WVA’s petitions after concluding that under section 54.75, the forms and information were not subject to disclosure; and

• WVA appealed and narrowed the issue to whether only the NVE forms were exempt from disclosure.

“In every material respect, Reynolds is on all fours with the present case,” Judge Neubauer wrote.

Neubauer also argued that the majority erred by employing a faulty analysis of the public records law by ignoring section 19.36(1), which exempts from disclosure any record that’s “specifically exempted from disclosure by state or federal law or authorized to be exempted from disclosure by state law.”

Section 54.75 contained such an exemption, Judge Neubauer argued.

“The consequences of the majority’s analysis, which enables one circuit court or two appellate judges to engage in public policy analysis and override statutory exceptions for confidential, privileged, or otherwise exempt records cannot be overstated,” Judge Neubauer wrote.