Moustakis v. State Dep't of Justice
| Decision Date | 20 May 2016 |
| Docket Number | No. 2014AP1853.,2014AP1853. |
| Citation | 368 Wis.2d 677,880 N.W.2d 142 |
| Parties | Albert D. MOUSTAKIS, Plaintiff–Appellant–Petitioner, v. STATE OF WISCONSIN DEPARTMENT OF JUSTICE, Defendant–Respondent, Steven M. Lucareli, Intervenor. |
| Court | Wisconsin Supreme Court |
For the plaintiff-appellant-petitioner, there were briefs by Benjamin J. Krautkramer and Swid Law Offices, LLC, Mosinee, and oral argument by Scott A. Swid.
For the defendant-respondent, the cause was argued by Brian Keenan, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.
¶ 1 This is a review of a published decision of the court of appeals, Moustakis v. Wisconsin Department of Justice, 2015 WI App 63, 364 Wis.2d 740, 869 N.W.2d 788, affirming an order of the Circuit Court for Lincoln County, Jay R. Tlusty, Judge.
¶ 2 The circuit court dismissed an action brought by Vilas County District Attorney Albert Moustakis under Wis. Stat. § 19.356(4) (2013–14)1 seeking to restrain the Wisconsin Department of Justice from releasing records pertaining to Moustakis in response to a public records request by The Lakeland Times, a newspaper located in Minocqua, Wisconsin. The court of appeals affirmed the order of the circuit court.
¶ 3 This review raises a single question that was well-stated by the court of appeals: Is a district attorney an “employee” as that term is used in Wis. Stat. § 19.356(2)(a) 1. and defined in § 19.32(1bg) such that the district attorney may maintain an action for notice and pre-release judicial review of records under § 19.356(4) ?2
¶ 4 To answer this question, we take the same approach as the court of appeals and the parties, namely, we analyze the interconnecting provisions of the public records law, Wis. Stat. §§ 19.21 –.39, and apply them to the fact situation at hand. The Wisconsin public records law is not always easy to read or decipher. Multiple provisions of the public records law cross-reference each other. Nevertheless, by analyzing the public records law step by step, we can resolve the present case. To enable easier reference to the text of the public records law as we discuss the cross-references, we have attached the text of the relevant statutes and constitutional provisions as Appendix A.
¶ 5 After analyzing the public records law and the parties' arguments, we conclude, as did the court of appeals, that a district attorney holds a state public office and is not an “employee” within the meaning of Wis. Stat. §§ 19.32(1bg) and 19.356(2)(a) 1. Because the records at issue do not fall within the narrow exception to the general rule that a “record subject” is not entitled to notice or pre-release judicial review of the decision of an authority to provide access to records pertaining to that record subject, Moustakis may not maintain an action under Wis. Stat. § 19.356(4) to restrain the Department of Justice from providing The Lakeland Times access to the requested records.
¶ 6 Accordingly, we affirm the decision of the court of appeals and the circuit court's order dismissing Moustakis's action under the Wisconsin public records law.
¶ 7 We remand the cause to the circuit court for further proceedings consistent with this opinion to consider Moustakis's amended complaint alleging two additional causes of action, the first seeking a writ of mandamus and the second asserting a challenge to the constitutionality of Wis. Stat. § 19.356. The circuit court stayed proceedings on these two causes of action,3 and these two causes of action are not at issue in this court.4
¶ 8 For purposes of this review, the facts and procedural history are not in dispute.
¶ 9 In July 2013, The Lakeland Times sent a public records request to the Department of Justice regarding Moustakis. The request sought records of any “complaints or investigations regarding Vilas County District Attorney Al Moustakis” and records “regarding any investigation of [Moustakis's] conduct or handling of cases while district attorney.” The request also sought “information related to complaints and investigations regarding Mr. Moustakis that were completed or ended without any action taken against him [,]” as well as “any communications between Mr. Moustakis and [Department of Justice] since he took office in 1995.”
¶ 10 The public records custodian of the Department of Justice referred the request to the Department's Division of Criminal Investigation and Division of Legal Services to prepare a response. The staff collected and reviewed the responsive documents and made numerous redactions. The public records custodian approved the proposed response for release. The response contained records relating to complaints against Moustakis that the Department of Justice ultimately found to be unsubstantiated.
¶ 11 The public records custodian at the Department of Justice left Moustakis a telephone message advising him that the Department would be releasing records responsive to The Lakeland Times' public records request. The Department also mailed a copy of the approved response to Moustakis.
¶ 12 Moustakis received the redacted records from the Department of Justice on or about March 5, 2014, more than seven months after The Lakeland Times made its public records request. The Lakeland Times did not receive the redacted records at the same time that Moustakis received them. The Department asserts that it provided Moustakis with notice and a copy of the response as a professional courtesy and that it was not required to do so by law.5
¶ 13 Moustakis notified the Department of Justice (through his counsel) of his intent to seek judicial review of the Department's decision to release the requested records. On March 10, 2014, Moustakis filed this action under Wis. Stat. § 19.356(4) to enjoin the Department from releasing the records at issue.
¶ 14 The Department moved to dismiss the action, arguing, as we explained above, that Moustakis was not an “employee” as that term is defined in Wis. Stat. § 19.32(1bg) and that, as a result, Moustakis may not maintain an action under § 19.356(4) to restrain the Department from providing access to the records relating to him that are responsive to The Lakeland Times' public records request.
¶ 15 The circuit court dismissed Moustakis's action on July 1, 2014, about one year after The Lakeland Times made its public records request to the Department of Justice, concluding that Moustakis was not an employee as defined in Wis. Stat. § 19.32(1bg) and as a result may not maintain an action under § 19.356(4). The court of appeals affirmed the circuit court's order dismissing the action. Moustakis sought review in this court.
¶ 16 The interpretation and application of statutes present questions of law that this court determines independently of the circuit court and court of appeals while benefiting from the analyses of these courts. Journal Times v. Police & Fire Comm'rs Bd., 2015 WI 56, ¶ 42, 362 Wis.2d 577, 866 N.W.2d 563.
¶ 17 To determine the meaning of a statute, we look to the language of the statute. Schill v. Wis. Rapids Sch. Dist., 2010 WI 86, ¶ 49, 327 Wis.2d 572, 786 N.W.2d 177. “Each word should be looked at so as not to render any portion of the statute superfluous.” Hubbard v. Messer, 2003 WI 145, ¶ 9, 267 Wis.2d 92, 673 N.W.2d 676 ().
¶ 18 “[A]scertaining plain meaning requires us to do more than focus on a single, isolated sentence or portion of a sentence.” Teschendorf v. State Farm Ins. Cos., 2006 WI 89, ¶ 12, 293 Wis.2d 123, 717 N.W.2d 258 (citation and quotation marks omitted). Instead, “[w]e consider the meaning of words in the context in which they appear.” Force ex rel. Welcenbach v. Am. Family Mut. Ins. Co., 2014 WI 82, ¶ 30, 356 Wis.2d 582, 850 N.W.2d 866. “We favor an interpretation that fulfills the statute's purpose.” State v. Hanson, 2012 WI 4, ¶ 17, 338 Wis.2d 243, 808 N.W.2d 390 (citation omitted).
¶ 19 We adopt the organization, statutory analysis, reasoning, and, at times, language of the decision of the court of appeals in our interpretation of the public records law and application of the law to the parties' arguments. The court of appeals organized its analysis of the statutes as follows, and so do we:
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