Moustakis v. State Dep't of Justice

• Decision Date: 31 July 2015
• Docket Number: No. 2014AP1853.,2014AP1853.
• Citation: 364 Wis.2d 740,869 N.W.2d 788
• Parties: Albert D. MOUSTAKIS, Plaintiff–Appellant, v. STATE OF WISCONSIN DEPARTMENT OF JUSTICE, Defendant–Respondent, Steven M. Lucareli, Intervenor.
• Court: Wisconsin Court of Appeals

364 Wis.2d 740

869 N.W.2d 788

Albert D. MOUSTAKIS, Plaintiff–Appellant^†

v. STATE OF WISCONSIN DEPARTMENT OF JUSTICE, Defendant–RespondentSteven M. Lucareli, Intervenor.

No. 2014AP1853.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 24, 2015.

Opinion Filed July 31, 2015.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Benjamin J. Krautkramer, Mosinee.

On behalf of the defendant-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Brian P. Keenan, assistant attorney general.

Before HOOVER, P.J., STARK and HRUZ, JJ.

Opinion

HRUZ, J.

¶ 1 Albert Moustakis, the Vilas County District Attorney, appeals an order dismissing his action under Wis. Stat. § 19.356(4) to enjoin the Wisconsin Department of Justice (DOJ) from releasing certain records pertaining to Moustakis in response to a public records request.¹ We conclude that various provisions of Wisconsin's public records law unambiguously preclude Moustakis from maintaining this action—most notably, Wis. Stat. § 19.32(1bg), which excludes from the definition of “employee” those individuals “holding a ... state public office.” We therefore agree with the circuit court that Moustakis lacks standing to bring an action under § 19.356(4), and we affirm.

BACKGROUND

¶ 2 On July 18, 2013, The Lakeland Times, a regional newspaper serving parts of northern Wisconsin, submitted a request for records to the DOJ.² The Lakeland Times requested records of any “complaints or investigations regarding Vilas County District Attorney Al Moustakis....” This request covered records containing information “regarding any investigation of his conduct or handling of cases while district attorney[,]” as well as records containing “information related to complaints and investigations regarding Mr. Moustakis that were completed or ended without any action taken against him....” The Lakeland Times also requested “any communications between Mr. Moustakis and [the DOJ] since he took office in 1995.”

¶ 3 The DOJ's public records custodian, attorney Kevin Potter, referred the request to the DOJ's Division of Criminal Investigation and Division of Legal Services to prepare a response. On February 17, 2014, Potter approved the proposed response for release, which consisted of redacted records and a cover letter. On February 19, Potter left Moustakis a voice message advising him that the DOJ would be releasing records responsive to The Lakeland Times' request. On February 21, prior to release of the records, Potter's assistant mailed a copy of the approved response to Moustakis.

¶ 4 On March 6, 2014, Moustakis notified Potter he would be commencing an action and requested that the DOJ withhold production of the records until the action's resolution. Moustakis filed this action on March 10, seeking an order under Wis. Stat. § 19.356(4) restraining the DOJ from providing access to the requested records.³ He asserted the records concerned “the investigation of repeated allegations made by a former political rival[,]” which allegations did not involve on-duty misconduct. Moustakis further alleged that the DOJ investigation did not lead to any charges against him.

¶ 5 The DOJ filed a motion to dismiss on May 23, 2014. The motion asserted that the records set for release were not of a type identified by Wis. Stat. § 19.356(2)(a) as requiring prerelease notice or judicial review. The DOJ reasoned that Moustakis did not qualify as an “employee,” as that term is defined by Wis. Stat. § 19.32(1bg), and therefore the records did not contain “information relating to an employee” under § 19.356(2)(a)(1). Accordingly, the DOJ asserted that Moustakis had no standing to bring the present action. The DOJ further argued Potter provided Moustakis the records intended for release as nothing more than a “professional courtesy,” and the DOJ was not required to do so by any statute.⁴

¶ 6 The circuit court held oral argument on the motion on June 27, 2014, and delivered its oral ruling on July 1. The court determined that the term “employee,” as used in Wis. Stat. § 19.356(2)(a)(1)., did not include Moustakis because that term, as defined by Wis. Stat. § 19.32(1bg), specifically excluded “an individual holding local public office or a state public office.” The court determined that various statutes cross-referenced by the public records law unambiguously established that district attorney is a “state public office[.]” The circuit court rejected Moustakis's contrary interpretation of “employee” after consulting legislative history regarding the enactment of Wis. Stat. § 19.356. The court then entered a written order granting the DOJ's motion to dismiss Moustakis's public records claim.

¶ 7 The circuit court also observed that on June 25, 2014, Moustakis had filed an amended complaint alleging two additional causes of action, the first seeking a writ of mandamus and the second asserting an as-applied challenge to the constitutionality of Wis. Stat. § 19.356. There was some dispute at the July 1 decision hearing as to whether the order resulting from that hearing would be final for purposes of appeal. The DOJ moved to dismiss Moustakis's subsequent appeal from that order, which motion we denied. We ordered that, if the order was not appealable as a matter of right, leave was granted to appeal the nonfinal order.⁵

DISCUSSION

¶ 8 “ ‘Standing’ is a concept that restricts access to judicial remedy to those who have suffered some injury because of something that someone else has either done or not done.” Three T's Trucking v. Kost, 2007 WI App 158, ¶ 16, 303 Wis.2d 681, 736 N.W.2d 239, quoted with approval in Krier v. Vilione, 2009 WI 45, ¶ 20, 317 Wis.2d 288, 766 N.W.2d 517. If a party to an action for judicial review lacks standing, the action must be dismissed as to that party. Kammes v. State Mining Inv. & Local Impact Fund Bd., 115 Wis.2d 144, 151, 340 N.W.2d 206 (Ct.App.1983).

¶ 9 Although there are multiple formulations of the test for standing, the “essence of the question ... is whether there is an injury and whether the injured interest of the party whose standing is challenged falls within the ambit of the statute ... involved.” Foley–Ciccantelli v. Bishop's Grove Condo. Ass'n, 2011 WI 36, ¶ 54, 333 Wis.2d 402, 797 N.W.2d 789. In other words, the operative question is whether the party's asserted injury is to an interest protected by the statutory provision at issue. Id., ¶ 55. Thus, we must decide standing by “examining the facts and interpreting [the] statute ... at issue.” Id.

¶ 10 “Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute.” State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 44, 271 Wis.2d 633, 681 N.W.2d 110. Statutory language is generally given its “common, ordinary, and accepted meaning,” and if a plain meaning is evident from that language, we ordinarily stop the inquiry. Id., ¶ 45. Statutory language is “interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.” Id., ¶ 46. Further, whenever possible we will read statutory language to give reasonable effect to every word, thereby avoiding surplusage. Id. ¶ 11 The question in this appeal is whether Moustakis is an “employee,” as that term is used in Wis. Stat. § 19.356(2)(a)(1). and defined in Wis. Stat. § 19.32(1bg), such that he may maintain an action for judicial review under Wis. Stat. § 19.356(4). The answer requires that we analyze certain statutes within, and cross-referenced by, Wisconsin's public records law, Wis. Stat. §§ 19.21 –19.39. The interpretation and application of a statute is a question of law. MercyCare Ins. Co. v. Wisconsin Comm'r of Ins., 2010 WI 87, ¶ 26, 328 Wis.2d 110, 786 N.W.2d 785.

¶ 12 The public records law is a fundamental concept in our state's history of transparent government. Journal Times v. City of Racine Bd. of Police & Fire Comm'rs, 2015 WI 56, ¶ 45, 362 Wis.2d 577, 866 N.W.2d 563. It is the declared public policy of the state that “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.” Wis. Stat. § 19.31. Accordingly, we construe the public records law “in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.” Id.; see also Journal Times, 362 Wis.2d 577, ¶ 45, 866 N.W.2d 563.

¶ 13 These principles are put into practice by Wis. Stat. § 19.35, which provides for the right of the public to inspect government records and includes provisions governing, among other things, the payment of fees and the time by which to comply with a request for records. The legislature recognized that some records that are subject to disclosure would inevitably contain “personally identifiable information” about some individuals; these individuals are known as “record subjects.” See Wis. Stat. § 19.32(2g).

¶ 14 Generally speaking, record subjects are not entitled to notice that a record concerning them will be released, nor are they entitled “to judicial review of the decision of an authority to provide a requester with access to a record.” Wis. Stat. § 19.356(1). However, the legislature has excluded three narrow categories of records from this general rule, which categories are defined by Wis. Stat. § 19.356(2)(a)(1–3). An “authority” intending to release records falling within the ambit of one of these categories must provide notice to the record subject. Para. 19.356(2)(a); see also Wis. Stat. § 19.31(1) (defining “authority”). After receiving notice, the record subject has five days to...