Administrative Law
In-Home Child Care – Regulations – Revoking Certification
Bell v. Department of Children & Families, 2015 WI App 47 (filed 12 May 2015) (ordered published 24 June 2015)
HOLDING: The Wisconsin Department of Children and Families (DCF) properly revoked the plaintiff’s in-home child care certification and prohibited her from reapplying for two years.
SUMMARY: In November 2010, Bell received a certification from the DCF to operate an in-home child care service. She was obligated to report any changes that affected her eligibility, including individuals “moving in or out of the household.” Several months earlier, Bell’s husband, Neely, had been convicted of strangling and suffocating Bell. In early 2012, Bell and Neely reconciled. Neely told his probation agent that he had “moved in” with Bell. The probation agent verified the move. When the DCF learned that Neely had moved into the household before it had granted authorization, it revoked Bell’s certification after a hearing. The circuit court affirmed the DCF’s decision.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
The court of appeals affirmed in an opinion authored by Reserve Judge Cane. First, the phrase “moving in” was not so vague that the regulation denied Bell due process. The hearing officer reasonably relied on a dictionary definition (see ¶ 20). Second, the DCF’s interpretation was entitled to controlling weight. “Neely’s return to the home after certification does not give Neely or Bell a free pass even if both attempted to skirt the regulations by sending him elsewhere during operating hours” (¶ 28). The DCF’s duty to protect children justified its need to be informed about who lived with Bell.
Third, sufficient evidence supported the finding that Bell violated the child care regulations. Finally, the DCF appropriately barred Bell from reapplying for two years. Although a “tough one,” the penalty was justified by Bell’s unsound judgment in allowing a convicted felon to reside in a home where she cared for children (¶ 40).
Civil Procedure
Venue – Judicial Review of Administrative Agency Decision Under Wis. Stat. Section 102.23
DWD v. LIRC, 2015 WI App 56 (filed 30 June 2015) (ordered published 29 July 2015)
HOLDING: Under the plain language of Wis. Stat. section 102.23(1)(c), a stipulation to venue in a particular county is required only from active parties in the proceeding.
SUMMARY: The Wisconsin Department of Workforce Development (DWD) filed this action in Milwaukee County Circuit Court, pursuant to Wis. Stat. sections 108.09(7) and 102.23, seeking judicial review of a Labor and Industry Review Commission (LIRC) decision in an unemployment insurance case. The DWD’s summons and complaint identified LIRC, Froehlich, and TLC Lawns as defendants. The DWD did not allege that any of the defendants reside in Milwaukee County.
“The relevant allegations in the pleadings are that LIRC ‘is a statutory commission within the executive branch’ with offices in Madison, Wisconsin; that Froehlich ‘resides in Appleton, Wisconsin’; and that TLC Lawns ‘is a Wisconsin employer … whose principal office is located in Waupaca, Wisconsin’” (¶ 2). With respect to venue in an action like this, Wis. Stat. section 102.23(1)(c) provides in pertinent part that “[t]he proceedings may be brought in any circuit court if all parties stipulate and that court agrees.” LIRC agreed to venue in Milwaukee County; neither Froehlich nor TLC Lawns filed a responsive pleading or otherwise appeared in this matter.
The circuit court concluded that it lacked competency to proceed because the DWD failed to obtain written stipulations to venue in Milwaukee County from each of the defendants. In a decision authored by Judge Brennan, the court of appeals reversed. Said the court, “[n]o one alleges that Froehlich or TLC Lawns were not served or were otherwise unaware that the action had commenced. While their failure to respond or participate beyond the time for answer does not constitute an actual stipulation, it does indicate – under the circumstances here, where there is no claim of lack of service – that they chose to be inactive parties. We conclude that the only reasonable reading of § 102.23(1)(c)’s plain language is that stipulation is only required from active parties” (¶ 11).
“LIRC has agreed to venue in Milwaukee County in writings filed with the court, and the remaining two defendants failed to respond to the action. In such a situation, we conclude that all of the parties have stipulated to venue in Milwaukee County within the meaning of Wis. Stat. § 102.23(1)(a)” (¶ 14).
The appellate court rejected LIRC’s argument that the only reasonable reading of Wis. Stat. sections 108.09(7)(a) and 102.23(1)(a) is that a state agency must obtain the required party stipulations and circuit court agreement before beginning its action if it wants to proceed somewhere other than a county where a defendant resides. Said the court, “[t]he
plain language of the statutes says no such thing” (¶ 15).
Criminal Procedure
Preliminary Hearings – Hearsay
State v. Hull, 2015 WI App 46 (filed 19 May 2015) (ordered published 24 June 2015)
HOLDING: The 2011 statute permitting the use of hearsay at preliminary examinations is not an ex post facto law, and the court properly refused to permit the defendant to call the sexual assault victim as a defense witness.
SUMMARY: The defendant was charged with sexually assaulting a 14-year-old girl in a hotel room while her intoxicated father, the defendant’s acquaintance, slept in the same room. The offense occurred in early 2011 but was not reported until 2012. A court commissioner heard evidence and bound over Hull for trial. Hull appealed a nonfinal order denying his motion to dismiss charges.
The court of appeals affirmed in an opinion authored by Judge Hruz. First, Wis. Stat. section 970.038, which effectively permits the state to use hearsay at a preliminary examination, is not an ex post facto violation of the U.S. Constitution. Although the statute was created after the charged assault, Hull’s argument “largely misapprehends the nature, purpose and requirements for preliminary hearings” (¶ 24). Preliminary hearings are not a constitutional right and are not part of the criminal trial.
“We conclude a postoffense change in the law making hearsay evidence admissible at a preliminary hearing does not violate a defendant’s ex post facto rights. The hearing is not held ‘in order to convict the offender,’ but rather to determine if probable cause exists to bind over a defendant for trial, at which the decision whether to convict occurs.Therefore, ex post facto protections do not attach to this change in the evidentiary requirements of such a hearing” (¶ 28).
Second, the presiding court commissioner properly refused the defendant’s efforts to call the victim as a witness at the preliminary hearing because the defendant’s goal was to attack her credibility, not the plausibility of her narrative to police (see ¶ 34). The court observed that the defense was permitted to call the victim’s father to test the plausibility of her claim that he slept through a violent assault (see ¶ 35).
Confessions – Suppression of Physical Evidence
State v. Jackson, 2015 WI App 49 (filed 12 May 2015) (ordered published 24 June 2015)
HOLDING: Although police officers unlawfully interrogated the defendant, physical evidence discovered during a search was supported by untainted statements in the warrant and by the inevitable-discovery doctrine.
SUMMARY: Jackson was charged with murdering her husband in a hotel room, where she stabbed him more than 20 times. The circuit court held that police officers violated her Miranda rights and obtained involuntary statements during a botched, lengthy interrogation. It also suppressed incriminating physical evidence, found during a search of Jackson’s home, as a fruit of the poisonous tree. The state appealed only the order suppressing the physical evidence; it did not challenge the suppression of Jackson’s statements.
The court of appeals reversed the suppression of the physical evidence in an opinion authored by Judge Stark. Even after excising the tainted evidence, probable cause supported the search warrant based on untainted evidence (see ¶ 19). Further, the inevitable-discovery doctrine supported the conclusion that lawful means would have led to the physical evidence regardless of police improprieties.
First, it was reasonably probable that police would have lawfully found the knife, clothes, and shoes concealed in a garbage can in Jackson’s garage (see ¶ 25). Second, it was undisputed that the police “possessed” investigatory leads making the discovery inevitable even at the time of their misconduct (¶ 35).
Third, police were actively pursuing “some alternative line of investigation”
(¶ 41) even while bungling Jackson’s interrogation. “Here, the knife, clothes, and shoes would have been discovered due to the thorough and methodical nature of the search, to which the officers testified, and the fact that police planned to search the garage when they finished searching the house itself” (¶ 39).
DNA Surcharge – Felonies – Ex Post Facto Challenge
State v. Radaj, 2015 WI App 50 (filed 21 May 2015) (ordered published 24 June 2015)
HOLDING: 2013 Wisconsin Act 20, which amended Wisconsin’s DNA surcharge law, was an ex post facto enactment when applied to defendants who committed their crimes before the effective date of the act but who were subjected to the increased surcharge provided for in the act.
SUMMARY: Defendant Radaj committed four felonies before the Jan. 1, 2014, effective date of a new DNA surcharge statute (2013 Wis. Act 20), but he was sentenced after that date. Because he was convicted of four felonies, his DNA surcharge was higher than it would have been under the law in effect when he committed his crimes. The revised statute provides for a mandatory surcharge in the amount of $250 per felony conviction. Consequently, Radaj’s DNA surcharge was $1,000, rather than a discretionary $250 amount as provided for under prior law.
Radaj argued that the new DNA surcharge statute as applied to him is an unconstitutional ex post facto law because the legislature increased the punishment for his crimes after he committed them. In a decision authored by Judge Lundsten, the court of appeals agreed.
The dispositive issue before the appellate court was whether the surcharge statute, as applied to Radaj, was a punitive criminal statute and thus violative of the ex post facto clause, or a nonpunitive civil statute. In deciding whether a statute is punitive, courts apply a two-part “intent-effects” test. First, they ask whether the legislature’s “intent” was to punish or to impose a nonpunitive regulatory scheme. If the legislature intended the law to be punitive, the inquiry ends.
If the legislature intended a nonpunitive regulatory scheme, then courts proceed to the second, “effects” part of the test, at which the inquiry is whether, despite the fact that the legislature intended a nonpunitive regulatory scheme, the effects of the sanctions imposed by the law are so punitive as to render them criminal (see ¶¶ 13-14).
In this case the court assumed without deciding that the legislature’s intent was to impose a nonpunitive regulatory scheme when it enacted the DNA surcharge at issue (see ¶ 16). However, it went on to conclude that the surcharge was sufficiently punitive as to render it criminal and that the statute requiring the surcharge is an ex post facto enactment as applied to the defendant. Of particular significance to the court was the fact that the surcharge is imposed on a per-conviction basis even though the costs associated with analyzing a specimen would not increase with the number of convictions (see ¶ 30).
The appellate court emphasized that the defendant did not raise a facial challenge to the statute (see ¶ 11). Moreover, it stressed two apparent limitations of its decision in this case to other defendants. “First, it is important to our analysis that Radaj was convicted of multiple crimes and, therefore, the surcharge increased with each conviction. We do not resolve whether there is an ex post facto problem if all of the facts were the same except that Radaj had been convicted of a single crime. Second, there obviously is no ex post facto problem in applying the DNA surcharge statute to criminal defendants on a going-forward basis. That is, had Radaj committed his crimes after the DNA surcharge statute’s effective date, he obviously could not assert an ex post facto violation, regardless whether the surcharge is punitive” (¶ 7).
DNA Surcharge – Misdemeanors – Ex Post Facto Challenge
State v. Elward, 2015 WI App 51 (filed 20 May 2015) (ordered published 24 June 2015)
HOLDING: 2013 Wisconsin Act 20, which established a DNA surcharge for misdemeanors, created an ex post facto punishment for certain defendants who, during the rollout of the new law, were subject to the surcharge but could not be ordered to submit a biological specimen for DNA analysis.
SUMMARY: On July 1, 2013, the legislature published 2013 Wisconsin Act 20. In part, this law imposed a $200 DNA surcharge for defendants found guilty of misdemeanors. The act called for circuit courts to begin imposing the surcharge on Jan. 1, 2014. However, the act required the circuit courts to wait until April 1, 2015, before they could actually order persons found guilty of misdemeanors to provide a biological specimen for DNA analysis.
This multiphase rollout led to an ex post facto challenge by the defendant, who was arrested on July 25, 2013 for fourth-offense operating while intoxicated (a misdemeanor). He pleaded guilty and was sentenced on Jan. 14, 2014; he was also ordered to pay the $200 DNA surcharge even though the court could not yet order that he submit a specimen for DNA analysis.
In a decision authored by Chief Judge Brown, the court of appeals concluded that the multiphase rollout of the DNA surcharge “led to an ex post facto violation because it created a class of people who committed an offense before the courts could impose a DNA surcharge, who then received a sentence when circuit courts were mandated to impose the surcharge but the requirement to submit a biological specimen was not yet in place. As a result, the law made this class of misdemeanants pay to maintain a database of which they could never be a part because they could never be ordered to actually provide a sample. In other words, the surcharge was disassociated from its purpose of financially supporting the DNA database. Therefore, rather than the surcharge being a fee to support the financial cost of a DNA database, it was a fine for this class and became an ex post facto violation” (¶ 2).
Return of Seized Property – Firearms
Leonard v. State, 2015 WI App 57 (filed 16 June 2015) (ordered published 29 July 2015)
HOLDING: The circuit court correctly denied the return of a firearm used in the commission of a crime but erroneously denied the return of other firearms and ammunition.
SUMMARY: Leonard was charged with disorderly conduct with a domestic-abuse modifier. The criminal complaint alleged that he engaged in “violent, boisterous, and otherwise disorderly conduct, under circumstances in which such conduct tended to cause a disturbance, to wit: having been drinking alcohol, at 3:30 a.m., kick[ed] in the locked door of his residence, scaring his wife …, obtain[ed] a loaded handgun, and [left] the house threatening to kill himself” (¶ 3). He ultimately pleaded no contest to disorderly conduct without the domestic-abuse modifier.
Leonard subsequently sought the return of the firearms and ammunition that were seized from his home after events that culminated in the disorderly-conduct conviction. The circuit court denied the motion, concluding that Leonard was prohibited from possessing firearms and ammunition, pursuant to 18 U.S.C. § 922(g)(9), because his disorderly-conduct conviction constituted a misdemeanor crime of domestic violence under federal law.
In the alternative, the court concluded the crime for which Leonard was convicted involved the use of the guns and ammunition, and Wis. Stat. section 968.20(1m)(b) therefore barred their return.
In a decision authored by Judge Stark, the court of appeals affirmed in part and reversed in part. First, it concluded that one of Leonard’s guns – a .44 Magnum revolver – was used in the commission of the disorderly-conduct offense for which Leonard was convicted.
Said the court, “Leonard’s disorderly conduct conviction was not based on the single event of kicking in the locked door to his residence. Rather, it was based on a course of conduct that included kicking in the door, frightening his wife, and obtaining the .44 Magnum and threatening to kill himself. We therefore agree with the State and the circuit court that the .44 Magnum was used in the commission of the crime for which Leonard was convicted. Accordingly, return of the .44 Magnum is barred by Wis. Stat. § 968.20(1m)(b)” (¶ 16).
Second, the court held that Wis. Stat. section 968.20(1m)(b) does not bar the return of the other guns and ammunition seized from his residence. “There is no evidence in the record that Leonard touched those items, referred to them, or attempted to access them during the events that formed the basis for his disorderly conduct conviction” (¶ 17).
Lastly, the court addressed the application of 18 U.S.C. § 922(g) as an alternative basis for denying return of the firearms and ammunition. Section 922(g)(9) states that it is “unlawful for any person … who has been convicted … of a misdemeanor crime of domestic violence … [to] possess in or affecting commerce, any firearm or ammunition[.]” It was undisputed that Leonard’s disorderly conduct conviction is a misdemeanor under Wisconsin law.
However, to qualify as a crime of domestic violence, two requirements must be met: “First, the offense must have as an element the use of physical force. Second, the offense must have been committed by a person who has a specified domestic relationship with the victim” (¶ 19) (citations omitted).
Leonard did not dispute that the use of physical force was an element of his disorderly-conduct conviction. Rather, he claimed that his spouse was not the victim of his disorderly conduct because the physical force involved in that crime was not directed at her; instead it was directed at the door of their residence. The appellate court rejected this application of the statute. “Instead, for purposes of applying § 922(g)(9), we conclude an act of physical force against an inanimate object may qualify as being ‘directed at’ a person when the evidence shows that the act was directed at frightening or intimidating the person” (¶ 28).
Nonetheless, on the record in this case, the appellate court “[could not] determine whether the force used in this case was actually directed at Leonard’s wife, in the sense that it was part of a course of conduct directed at frightening and intimidating her” (¶ 31). The record also supports “a reasonable inference that Leonard’s act of kicking in the door was not directed at frightening and intimidating his wife, but, rather, was the act of an intoxicated person locked out in the cold. The allegations in the complaint further support an inference that Leonard’s suicide threats and related conduct were not intended to frighten his wife, but were instead the result of his intoxication or genuine suicidal ideations” (¶ 30).
In sum, due to these reasonable competing inferences, the court of appeals concluded that the complaint and plea hearing transcript do not provide a basis for it or the circuit court to determine whether, under the circumstances, Leonard’s disorderly-conduct conviction qualifies as a misdemeanor crime of domestic violence under federal law (see ¶ 2).
Garnishment
Tenants in Common – Land Contract – Priorities – Tax Liens
Prince Corp. v. Vandenberg, 2015 WI App 55 (filed 16 June 2015) (ordered published 29 July 2015)
HOLDING: When tenants in common sold the property under a land contract, a tax lien against one of the tenants had priority over other creditors, authorizing the garnishment of the final land-contract payment.
SUMMARY: Four tenants in common sold their real property pursuant to a land contract. Various creditors, including the Wisconsin Department of Revenue (DOR), moved to garnish the final land-contract payment based on money owed by one of the tenants, Vandenberg. The circuit court ruled that two outstanding tax liens filed by the DOR took priority over other creditors and entitled the DOR to garnish $85,000 of the final land contract payment.
The court of appeals affirmed in an opinion, authored by Judge Stark, which addressed multiple issues regarding the garnishment.
First, the final land-contract payment is subject to garnishment. “Because the land contract does not express any contrary intent, the presumption set forth in § 700.21(1) applies, and the purchase price is payable to Vandenberg and the [i]ntervenors according to their interests in the Brown County property. Vandenberg owns a one-fourth interest in the property, so he is entitled to one-fourth of the contract price. Accordingly, one-fourth of the contract price is garnishable in order to satisfy debts owed by Vandenberg alone” (¶ 16).
Second, the garnishable amount was one-fourth of the total contract price, not one-fourth of the final payment (see ¶ 20). Third, the tax lien had priority over a lien by another judgment creditor. The “mere fact” that a judgment creditor “was the first party to file a garnishment action is not dispositive of priority” (¶ 33). Here the tax liens arose first, and had priority (see ¶ 35). Fourth, the DOR was not required to file a garnishment summons and complaint to assert its interest in the final payment. Rather, the DOR appropriately asserted its interest by answering the intervenors’ third-party complaint, as contemplated by Wis. Stat. section 812.17 (see ¶ 37).
Fifth, the circuit court properly exercised its discretion when it reconsidered an earlier order in favor of the judgment creditor (see ¶ 39). Sixth, the circuit court properly denied the intervenors’ request for partition. Contrary to the intervenors’ argument, partition is not the only way to clear title to the property (see ¶ 51).
Insurance
Duty to Defend – Breach
Marks v. Houston Cas. Co., 2015 WI App 44 (filed 7 May 2015) (ordered published 24 June 2015)
HOLDING: An insurer had no duty to defend its insured.
SUMMARY: Marks was the trustee of two trusts. His duties included investing, managing, and growing the trusts’ corpus. Marks allegedly invested the trusts’ money in companies in which he was involved as a board chair and officer (see ¶ 2). Later, Marks was sued six times in five states for his actions relating to those investment companies.
Marks submitted the claims to his errors and omissions carrier, Houston Casualty, which either refused or failed to provide a defense for any of the lawsuits. An exclusion in the policy related to liability arising out of the insured’s services as an “officer, director, partner, trustee, or employee” of a business enterprise not named in the declarations (¶ 3). Marks sued Houston Casualty seeking relief for its refusal to defend him. The circuit court granted summary judgment in favor of Houston Casualty.
The court of appeals affirmed in an opinion authored by Judge Sherman. “We conclude that: (1) policy exclusions are properly considered in determining whether Houston Casualty breached its duty to defend Marks; and (2) Houston Casualty did not breach its duty to defend because policy exclusion IV(b)(1) precludes coverage when assessed in light of the allegations in complaints against Marks, and because the policy exclusions do not create illusory coverage” (¶ 8).
Marks’s arguments turned on three cases – Grube, Kenefick, and Radke – that “impermissibly conflict” with an earlier case, Professional Office Buildings Inc. v. Royal Indemnity Co., 145 Wis. 2d 573 (Ct. App. 1988) (¶ 10). The court of appeals lacks authority to overrule, modify, or withdraw language from an earlier case (see ¶ 15).
“We note thatGrube, KenefickandRadkedo not merely conflict withProfessional Office Bldgs., they unnecessarily create a modified duty to defend test that is counterintuitive and confusing.… By using the normal duty to defend test to assess whether the insurer has breached its duty to defend,Professional Office Bldgs.provides a strong incentive to insurers to provide a defense to insureds, even when the insurer contests its obligation to provide coverage. The substantial benefit to insurers of providing an initial defense and promptly litigating the duty to defend is that, if the insurer is wrong in its assessment that it has no duty to defend, the insurer does not forfeit its right to contest coverage based on the facts, as further developed in discovery or as found by a fact finder. Under theProfessional Office Bldgs.estoppel rule, if the insurer unilaterally denies a defense, it runs the risk that it will be required to provide coverage, even if later it can be shown that its policy does not provide coverage under the developed facts. The risk of being wrong is ample incentive for insurers to err on the side of caution, without the additional burden imposed byGrube” (¶ 16).
On this record, the exclusion clearly and unambiguously provided no coverage for Marks’ activities in the other companies. Nor was the policy’s coverage “illusory.”
Third-Party Claims – Prompt Payment – Interest – Lawyer-Client Privilege
Dilger v. Metropolitan Prop. & Cas. Ins. Co., 2015 WI App 54 (filed 3 June 2015) (ordered published 29 July 2015)
HOLDING: The circuit court properly awarded interest to a third-party claimant under the “prompt payment” statute (Wis. Stat. § 628.46); an error in requiring the insurer to produce its claim file was harmless.
SUMMARY: While on foot, a police officer was struck by the car of the defendant, who drove away from the scene, leaving the officer seriously injured. The defendant later pleaded guilty to criminal hit-and-run. To settle the civil claims, the defendant’s insurer paid the plaintiff police officer $1.5 million, the policy limits. The court subsequently awarded the plaintiff nearly $180,000 in interest under Wis. Stat. section 628.46.
The court of appeals affirmed in an opinion, authored by Judge Reilly, that focused on the interest payment issue. A 2006 Wisconsin Supreme Court decision holds that Wis. Stat. section 628.46, which requires insurers to “promptly pay” claims within 30 days, applies to third-party claims as well as claims by insureds, provided 1) liability is clear, 2) the damages are certain, and 3) the claimant provides written notice of both liability and the “sum certain” of damages. See Kontowicz v. American Standard Ins. Co., 2006 WI 48, 290 Wis. 2d 302, 714 N.W.2d 105.
In the present case, the court of appeals found no abuse of discretion in the circuit court’s award of section 628.46 interest as calculated from the date of sentencing in the criminal case, which both sides disputed. The insurer’s contention about disputed liability and damages was belied by the guilty plea and the finding that the plaintiff’s damages “far exceeded” the limits paid. As for the plaintiff’s contention, the judge properly indexed the interest to the date of sentence rather than the guilty plea itself, as the defendant might well have withdrawn her guilty plea before then.
The circuit court erred, however, in ordering the insurance company to turn over its claims file as part of the discovery into the section 628.46 issue. The circuit court erred in finding that neither the lawyer-client privilege nor the work-product rule protected the file (see ¶ 21). The error was, however, harmless because the circuit court did not rely on the file in making its findings.
Public Records Law
The Meaning of “Record” – Application of Public Records Law to Notes Prepared for the Originator’s Personal Use
Voice of Wis. Rapids LLC v. Wisconsin Rapids Pub. Sch. Dist., 2015 WI App 53 (filed 4 June 2015) (ordered published 29 July 2015)
HOLDING: The documents in question were notes prepared for the originator’s personal use and thus not subject to disclosure under the Public Records Law.
SUMMARY: The plaintiff newspaper appealed the circuit court’s denial of the newspaper’s petition for a writ of mandamus to compel the Wisconsin Rapids Public School District and its superintendent (the district) to grant the newspaper access to documents withheld by the district. These documents were created by district employees in connection with interviews that the employees conducted as part of a district investigation into alleged improprieties surrounding a school athletic program.
After inspecting the withheld documents, the circuit court denied the newspaper’s petition on grounds that, under Wis. Stat. section 19.32(2), the documents are not “record[s]” subject to disclosure, because the documents are “notes” “prepared for the originator[s’] personal use” (¶ 1).
In a decision authored by Judge Blanchard, the court of appeals affirmed. It concluded first that the documents in question were indeed “notes.” Said the court, “[w]e have inspected the sealed record containing the documents and we cannot think of a more suitable word to describe how these documents consistently appear than ‘notes,’ for the same reasons given by the circuit court. They are mostly handwritten and at times barely legible. They include copies of post-it notes and telephone message slips, and in other ways appear to reflect hurried, fragmentary, and informal writing. In addition, witness testimony included in the discovery materials available to the circuit court consistently describes creation of these documents as a note-taking process. A few documents are in the form of draft letters. However, based on the witness testimony, we construe these to have been in the nature of notes, which were created for and used by the originators as part of their preparation for, or as part of their processing after, interviews that they conducted. Therefore, we conclude that all of the withheld documents are ‘notes’ as that word is used in Wis. Stat.§ 19.32(2)” (¶ 16).
The court also found that the “notes” were “prepared for the originator’s personal use.” In so holding it relied on an attorney general opinion (77 Wis. Op. Att’y Gen. 100 (1988)), which concludes that the personal notes exclusion from the Public Records Law can be invoked when a person takes notes for the sole purpose of refreshing his or her recollection at a later time. However, if one’s notes are distributed to other people for the purpose of communicating information or if notes are retained for the purpose of memorializing agency activity, the notes would go beyond mere personal use and would therefore not be excluded from the definition of a “record” (see ¶ 21). Neither use was present in this case.
And while some individual notations may represent tentative conclusions on issues of consequence in the investigation, none of the notes individually or collectively appear to establish formal positions or actions of the school district (¶ 36).
