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Wisconsin Supreme Court hears arguments in significant public records case
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Wisconsin Supreme Court hears arguments in significant public records case

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Supreme Court

The Wisconsin Supreme Court chambers. 

The Wisconsin Supreme Court on Thursday heard oral arguments in a case that could make it — depending on the ruling — easier or harder for people to sue state and local governments to compel them to release public records.

The case involves a community group, Friends of Frame Park, that sought a copy of a draft contract between the city of Waukesha and Big Top Baseball LLC, which had been pursuing plans to build a stadium in the city’s Frame Park for summer collegiate baseball. Friends of Frame Park sued the city to release the draft contract.

The U.S. Supreme Court rules 9-0 in favor of former student-athletes. What’s at stake is extra academic benefits the organization banned.

The city released it shortly after — without being ordered to do so by a court — explaining the reason it did so was because the open records exception it relied upon to deny releasing the records was no longer applicable. One of the questions in the case is whether the court should award attorney fees to Friends of Frame Park even though Waukesha handed over the records without a court ruling.

The Wisconsin Court of Appeals created what some Supreme Court justices deemed a new test for answering that question.

Under current practice in Wisconsin, courts award attorney fees to records requesters if their lawsuit was found to be one of the reasons for the release of the records, even if the records were voluntarily produced.

Under the new test, courts could award fees based on the validity of the initial records denial.

The Supreme Court will determine whether that new test should stand.

Though unlikely, the Supreme Court could make fees contingent on a court ordering the release of records. Under such a scenario, the government could release the records after a lawsuit and be immune from paying the requester’s attorneys fees as long as it released them before a court ordered it. That would make it riskier for a member of the public to hire an attorney and sue.

During oral arguments Thursday, some conservative justices, particularly Justice Patience Roggensack, appeared to be skeptical of both the city of Waukesha’s and Friends of Frame Park’s arguments; however, Roggensack later clearly disagreed with the Court of Appeals rationale to support awarding attorney’s fees, which she said she viewed as exceeding its authority by creating a new standard for awarding attorneys fees.

“That is a Court of Appeals decision that is making up a new test, which is different from past court of appeals decisions and that greatly concerns me,” Roggensack said. “Because if there’s to be a new test, we make it up.”

Roggensack appeared to support previous Court of Appeals decisions that award attorney’s fees by determining whether initiating a lawsuit was a cause for releasing records.

Conservative Justice Rebecca Bradley appeared to support a view that people who sue for open records access should only be awarded attorney’s fees if a court compels the government to release records.

Conservative and crucial swing Justice Brian Hagedorn questioned attorneys about the reasoning the Court of Appeals used to award attorneys fees to Friends of Frame Park, and also appeared concerned about open records requesters abusing current law to be awarded fees. He was otherwise unclear about how he thought attorney’s fees should be awarded.

Some liberals, such as Justice Ann Walsh Bradley, pondered whether the law might allow broad flexibility to allow attorney’s fees without a court having to compel it.

The Wisconsin Court of Appeals in 2020 reversed a 2018 Waukesha County Circuit Court order that upheld the city of Waukesha’s initial decision to deny the records.

Friends of Frame Park asked the city of Waukesha for a copy of the draft contract between the city and Big Top before a decision had been made. The city denied the request, citing ongoing negotiations.

A couple of months later and two days after the city sued, Waukesha released the contract to the group, but Friends of Frame Park continued with its legal action and requested attorney’s fees. The city had argued the case was then moot and it shouldn’t be responsible for fees.

Circuit Court Judge Michael O. Bohren in 2018 sided with the city, ruling that it had correctly applied the law. Friends of Frame Park appealed, and the Court of Appeals reversed the circuit court’s ruling, finding that that city wasn’t correct in its initial decision to deny release of the records.

Looking back a decade later, 10 stories about Act 10

The most seismic political story of the last decade in Wisconsin began on Feb. 7, 2011, when Republican Gov. Scott Walker informed a gathering of cabinet members of plans to unilaterally roll back the power of public sector unions in the state. He "dropped the bomb," as Walker would describe it afterward, four days later.

The audacious proposal, to be known forever after as Act 10, required public employees to pay more for pension and health insurance benefits, but also banned most subjects of collective bargaining and placed obstacles to maintaining union membership.

The proposal laid bare the state's deep, at times intensely personal, political divisions as tens of thousands of protesters descended on the Capitol. The month-long, round-the-clock occupation drew international attention, but failed to stop the bill.

A decade later, the aftershocks of one of the biggest political earthquakes in Wisconsin history continue to be felt. Taxes have been held in check, and state finances have improved. But public unions are vastly diminished and the state is more politically divided than ever.

Here are 10 stories from people who experienced the historic events firsthand.

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Former Sen. Mark Miller and Rep. Peter Barca tried to slow down passage of the legislation to force a compromise.

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A decade later, former Gov. Scott Walker said he views Act 10 as one of the best things he's done for the state.

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Gov. Scott Walker’s proposal to strip collective bargaining rights from public employees motivated Susan Cohen, a Madison middle school scienc…

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Dale Schultz believes the state's ability to solve people's problems was greatly diminished by Act 10.

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Longtime Madison Teachers Inc. leader John Matthews explains why collective bargaining still matters.

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Charles Tubbs said his mission was communicating with protesters and voluntary compliance.

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During the peak of the Act 10 protests, Ian's Pizza was delivering 1,200 pizzas a day to protesters. 

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Looking back on the passage of Act 10 a decade ago, Sen. Joan Ballweg, R-Markesan, said one of her most vivid memories is the tens of thousand…

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When the news about Act 10 broke, Madison middle school teacher Michele Ritt went to the Capitol, where a few hundred or so people had begun t…

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As a Capitol reporter with the Milwaukee Journal Sentinel in early 2011, Jason Stein had a front row seat to the politics and protests surroun…

Under current practice in Wisconsin, courts award attorney fees to records requesters if their lawsuit was found to be one of the reasons for the release of the records, even if the records were voluntarily produced.

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