Armada Broadcasting, Inc. v. Stirn

• Decision Date: 12 May 1994
• Docket Number: No. 92-3036,92-3036
• Citation: 183 Wis.2d 463,516 N.W.2d 357
• Parties: , 91 Ed. Law Rep. 337 ARMADA BROADCASTING, INC., a Wisconsin corporation, Plaintiff-Respondent, v. Robert E. STIRN, District Administrator, School District of Wisconsin Dells, a municipal corporation, Defendants-Respondents, Richard Schauf, Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 357

516 N.W.2d 357

183 Wis.2d 463, 91 Ed. Law Rep. 337

ARMADA BROADCASTING, INC., a Wisconsin corporation Plaintiff-Respondent, v. Robert E. STIRN, District Administrator, School District of Wisconsin Dells, a municipal corporation Defendants-Respondents Richard Schauf, Appellant-Petitioner.

No. 92-3036.

Supreme Court of Wisconsin.

Argued March 3, 1994.

Decided May 12, 1994.

BABLITCH, Justice.

Richard Schauf (Schauf) seeks review of a court of appeals' decision denying him the right to intervene in Armada Broadcasting, Inc.'s (Armada) action to compel disclosure of an investigative report in which Schauf is a subject. The court of appeals held that Schauf lacked a legally protected interest in closing the report from public access and thus denied his request. We disagree. We find that Schauf meets the criteria for intervention as of right ¹ and accordingly, we reverse the decision of the court of appeals and remand so that Schauf may intervene.

The facts are undisputed. The School District of Wisconsin Dells (District) commissioned Attorney Ann Weiland to investigate employee charges of sexual harassment. On the basis of her report (Weiland report), the District took disciplinary action against Schauf and other District employees. In response, Schauf filed a grievance against the District in accordance with the District's collective bargaining agreement.

In September 1992, Armada filed a written request with Robert Stirn, Administrator for the District, for copies of the Weiland report and other documents in the District's possession. Armada made the request pursuant to the Wisconsin Open Records Law, sec. 19.35, Stats. The District disclosed copies of some of the documents but denied the request for the Weiland report, citing the following reasons for its denial:

1. The document prepared by Ms. Weiland for the District constitutes a confidential attorney/client communication and is subject to the attorney/client privilege under section 905.03 Wis.Stats. See also section 19.85(1)(g), Wis.Stats.

2. Disclosure of the report would run counter to the legislature's recognition of the need to keep personnel records confidential to protect the reputational interests of individual employees, as indicated in section 19.85(1), Stats. This document is an integral part of an investigation of charges against specific individuals. If the charges were discussed in public, a substantial adverse effect upon the reputation of these individuals would likely result. The Board will be reviewing the charges against certain employees pursuant to the grievance procedure. The investigation is, therefore, not complete.

3. Disclosure of the report would infringe on the right to privacy of the employees who brought the charges which resulted in the investigation.

4. Disclosure would provide the press with greater access than the employees involved enjoy themselves.

Armada filed a petition for a writ of mandamus to obtain the Weiland report. On November 2, 1992, the same day oral arguments were to be held on the writ of mandamus, Schauf filed a motion to intervene in the action. Schauf claimed that he had a legally protected interest in the disclosure of his personnel files because disclosure would greatly harm his reputation. He also argued that he would be inadequately represented by the District, and that his due process rights to fair grievance procedures would be violated if he was not allowed to intervene. Armada was the only party to oppose Schauf's motion. The circuit court denied Schauf's motion, reasoning that the balancing of interests in the public records analysis is best done by looking only at the interests of the parties originally in the action.

At the conclusion of a second hearing on November 24, 1992, the circuit court denied Schauf's request to stay disclosure of the report pending an appeal of his motion to intervene. The court then ordered that six and one-half pages of the Weiland report be released. Included within the six and one-half pages released is a paragraph relating to Schauf's alleged sexual harassment and the action that Attorney Weiland proposed be taken against him. The court's basis for preserving the confidentiality of the other portions of the Weiland report was that the report contained extreme contradiction and uncorroborated information which if released could cause harm to the reputations of the District employees involved in the investigation.

On December 17, 1992, prior to Armada's hearing for reconsideration of the circuit court decision, the court of appeals granted Schauf's motion for stay of further proceedings pending appeal. Subsequently, the court of appeals affirmed the circuit court's denial of Schauf's motion to intervene on the basis that Schauf did not have a legally protected interest in closing the Weiland report from public access. Schauf petitioned, and we granted review. Schauf was the only party to submit a brief and participate in oral argument before this court. The District did not oppose Schauf's motion, and Armada relied solely on its brief submitted to the court of appeals.

The sole issue on review is whether Schauf has a right to intervene in the mandamus action under sec. 803.09(1), Stats. The decision to allow or deny intervention as of right is a question of law which we review de novo. State ex rel. Bilder v. Delavan Tp., 112 Wis.2d 539, 549, 334 N.W.2d 252 (1983).

We begin by setting forth the four requirements ² for intervention as of right enumerated in the statute:

(1) that the motion to intervene be made in a timely fashion;

(2) that the movant claims an interest relating to the property or transaction which is the subject of the action;

(3) that the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant's ability to protect that interest; and

(4) that the movant's interest is not adequately represented by existing parties.

If Schauf meets each of the requirements listed above, we must allow him to intervene in the mandamus action. The court of appeals denied Schauf's motion on the basis that he lacked a legally protected interest in the mandamus action, and thus did not address the other requirements for intervention. We address each requirement separately below and conclude that Schauf meets each of the requirements for intervention.

I. TIMELINESS

The question of timeliness is left to the discretion of the circuit court. Bilder, 112 Wis.2d at 550, 334 N.W.2d 252. The circuit court did not cite timeliness as grounds for denial of Schauf's motion, and Armada has not objected to his motion on this basis. Schauf filed and argued his motion for intervention prior to the commencement of the first hearing on the mandamus action. We conclude that Schauf's motion was timely.

II. SUFFICIENTLY RELATED INTEREST

In determining whether Schauf claims an interest relating to the transaction which is the subject of the action, we must determine whether Schauf has an interest "sufficiently related" to Armada's mandamus action. Bilder, 112 Wis.2d at 547, 334 N.W.2d 252. In doing so, we are instructed to "view the interest sufficient to allow the intervention practically rather than technically." Id. at 548, 334 N.W.2d 252. The purpose of this approach is to strike a balance between two conflicting public policies: allowing the original party to conduct and conclude its own lawsuit and allowing persons to join in the interest of the speedy and economical resolution of controversies. Courts using this pragmatic approach view the interest test as "primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process." Id. at 549, 334 N.W.2d 252 (citing Nuesse v. Camp, 385 F.2d 694, 700 (D.C.Cir.1967)).

The court of appeals denied Schauf's motion on the basis that Schauf lacked a legally protected interest in intervening. In doing so, however, the court did not employ the pragmatic approach adopted in Bilder. Rather, the court focused on the public policy behind the Open Records law. It stated:

[E]ven if "there is a legal guarantee of present enjoyment of reputation or a general legislative policy to protect a citizen's general interest in his or her reputation," that does not as a matter of law overcome the public policy regarding open records. Armada Broadcasting, Inc. v. Stirn, 177 Wis.2d 272, 281, 501 N.W.2d 889 (Ct.App.1993) (citing Bilder, 112 Wis.2d at 557, 334 N.W.2d 252).

The court of appeals' reliance on this language in Bilder was misplaced. This language was used in Bilder in the context of determining whether the record in question should be opened to the public under the Wisconsin Open Records law. The issue before us does not involve a determination under the Open Records law. We do not decide whether the Weiland report should be disclosed to the public. Rather, we are concerned solely with whether Schauf has an interest sufficiently related to the mandamus action for purposes of intervention under sec. 803.09(1), Stats. We need not balance such interest against the policy behind the Open Records law.

For this same reason we reject Armada's argument that our decision whether to allow Schauf to intervene is governed by other language in Bilder which reads: "it is the legal custodian of the record, not the citizen, who has the right to have the record closed...." 112 Wis.2d at 558, 334 N.W.2d 252. This statement has no effect upon our decision regarding intervention. As stated previously, our decision does not influence whether the record should remain closed. Moreover, it does not grant Schauf the ability to close the record. We are simply determining whether Schauf may intervene for the purpose of being able to offer reasons to the court why the record should remain closed.

Utilizing the pragmatic approach recommended in Bilder to resolve this question we conclude that Schauf does...