Sands v. Whitnall School Dist.

Decision Date11 July 2008
Docket NumberNo. 2005AP1026.,2005AP1026.
Citation754 N.W.2d 439,2008 WI 89
PartiesBarbara SANDS, Plaintiff-Respondent-Petitioner, v. The WHITNALL SCHOOL DISTRICT, Defendant-Appellant.
CourtWisconsin Supreme Court

For the plaintiff-respondent-petitioner there were briefs by Thomas Nelson and Hawks Quindel Ehlke & Perry, S.C., Milwaukee, and oral argument by Thomas Nelson.

For the defendant-appellant there were briefs by Jeffrey A. Schmeckpeper, Patti J. Kurth, and Kasdorf, Lewis & Swietlik, S.C., Milwaukee, and oral argument by Jeffrey A. Schmeckpeper.

An amicus curiae brief was filed by Robert J. Dreps, Patricia L. Wheeler, and Godfrey & Kahn, S.C., Madison, on behalf of the Wisconsin Freedom of Information Council, the Wisconsin Broadcasters Association, and the Wisconsin Newspaper Association.

An amicus curiae brief was filed by Bruce A. Olsen, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general, on behalf of the Wisconsin Department of Justice.


This is a review of a published court of appeals opinion1 reversing and remanding a non-final order of the Milwaukee County Circuit Court, the Honorable Clare L. Fiorenza presiding. The circuit court issued an order directing the Whitnall School District (the District) to provide answers to interrogatories from Barbara Sands (Sands) regarding a discussion about her employment during a closed session of the Whitnall School Board (the Board).

¶ 2 The District appealed, claiming that the circuit court granted Sands' motion to compel based on its erroneous failure to recognize that discussions transpiring during a closed meeting are privileged under the provisions of Wis. Stat. § 19.85(2005-06)2 authorizing the closed meeting, or, alternatively, under a "deliberative process privilege." The court of appeals agreed, holding that the language of § 19.85 indicates that the legislature intended to protect the substance of closed sessions from public disclosure, and that such an implicit privilege is authorized by Wis. Stat. § 905.01. Sands v. Whitnall School District, 2007 WI App 3, ¶¶ 10, 15, 298 Wis.2d 534, 728 N.W.2d 15. The court of appeals reversed the circuit court's order and remanded the cause with directions to deny Sands' motion to compel. Id., ¶ 15.

¶ 3 Sands petitioned this court for review. She argues that it was the court of appeals, not the circuit court, which issued an erroneous ruling because there is neither a "deliberative process privilege" in Wisconsin nor any other privilege implicit in Wis. Stat. § 19.85 shielding the contents of closed sessions from discovery.

¶ 4 We agree with Sands and conclude that the court of appeals decision was based on an erroneous interpretation of Wis. Stat. §§ 19.85 and 905.01. Consequently, we reverse the decision of the court of appeals and remand for further proceedings consistent with this opinion.


¶ 5 The pertinent facts and procedural background of this case are not in dispute. In 1998, the Whitnall School District hired Sands to run the District's Gifted and Talented Education Program.3 After closed session meetings on April 29, 2002, and May 13, 2002, addressing Sands' employment, the Board voted in an open session not to renew Sands' contract. Sands was informed of the decision three days later, on May 16, 2002.

¶ 6 On April 23, 2004, Sands filed a lawsuit stating that because she had served as an "administrator" within the meaning of Wis. Stat. § 118.24(6),4 she was entitled to, but had been denied, that statute's protections. Specifically, the complaint alleged that because Sands did not receive four-months' notice that her contract would not be renewed, the District had violated her rights under § 118.24(6), and she was therefore entitled to receive a salary and certain benefits, including an early retirement option and post-retirement health insurance, for two years.

¶ 7 In its answer, the District denied that Sands' job duties were solely or principally administrative and that her contract was subject to Wis. Stat. § 118.24. The District also alleged affirmative defenses, including unsatisfactory job performance by Sands, her knowledge that failure to improve her job performance would result in a decision not to renew her contract, the lack of any guaranteed salary or benefits to Sands, Sands' own failure to comply with § 118.24, and the applicability of the doctrine of laches.

¶ 8 During discovery, the District produced documents requested by Sands, but refused to provide complete answers to the following interrogatories seeking content from the two closed sessions:5

INTERROGATORY NO. 2: Separately, for each person identified in response to interrogatory 1 [those present at the closed sessions], state the substance of the person's knowledge about the decision not to renew Dr. Sands' contract.

INTERROGATORY NO. 5: Identify each person who spoke during the deliberations that resulted in the school board's decision not to renew Dr. Sands' contract.

INTERROGATORY No. 6: Separately for each person identified in response to question 5, above, state the substance of what he or she said about renewing Dr. Sands' contract.

In response to all three requests, the District declined to answer, claiming that the information was privileged under Wis. Stat. § 19.85 and under a "deliberative process privilege."6 Sands filed a motion to compel,7 and the District opposed the motion, repeating its privilege claims.

¶ 9 The circuit court ruled in favor of Sands, concluding that the District was required to provide the information requested in the interrogatories. The court explained that it was granting the motion to compel because privileges in Wisconsin are narrowly construed; because Wisconsin has never recognized a deliberative process privilege; and because, as a litigant, Sands is entitled to discovery, which the court differentiated from open records requests. In support of its conclusion that the discovery process allows Sands' request for information, the court relied on and quoted the language in Burnett v. Alt, 224 Wis.2d 72, 85, 589 N.W.2d 21 (1999), that "[p]rivileges are the exception, not the rule," and that unless such a privilege applies, parties "are entitled to every person's evidence" (citation omitted). The circuit court in this case concluded:

I guess if the Supreme Court wants to create a privilege in this case, then they can create one. I don't think there's a privilege in this case. I think that [Sands] has a right to this discovery process. And if the Supreme Court wants to find that I'm wrong, that's why we have appellate cases and maybe they'll view me differently. But the cases that I've read and my gut feeling with respect to this whole discovery process, and clearly — you know, parties in litigation are entitled to same person's evidence. And I don't see a privilege and I don't see that's inherent in the statute. I just don't view it that way. And someone else — In all due respect, someone else might view it a different way and I'll be reversed then. And that's my gut call after reading the cases. I think that the [District] has to produce this information in this lawsuit with respect to Miss Sands' employment, of not giving proper notice regarding termination. I don't know what was discussed during that closed session. I guess that's what [Sands'] counsel wants to know, what was discussed. And it doesn't mean it's admissible. It might not be relevant, but they have a right during discovery to search out information that may support their position.

¶ 10 In an order dated April 12, 2005, the court granted Sands' motion and directed the District to answer Interrogatories No. 5 and 6. The District appealed.

¶ 11 The court of appeals decision issued on December 27, 2006, reversed the circuit court decision and remanded the cause with directions to enter an order denying Sands' motion to compel. Sands, 298 Wis.2d 534, ¶ 15, 728 N.W.2d 15. The court of appeals held that the plain text of Wis. Stat. § 19.85 "clearly indicates that discussions occurring in a properly noticed closed session are not subject to disclosure. The statute contains no exceptions to the non-disclosure principle, none for litigation or any other circumstances." Id., ¶ 10. The court of appeals also cited Wis. Stat. § 905.01 to hold that "a privilege of non-disclosure is implicit within [§ 19.85]." Id. It rejected Sands' reference to § 19.85(1)(b), which specifies that notice of closed sessions is required so the employee can demand that an evidentiary hearing be held in open session, explaining that this is not a subsec. (1)(b) case involving an evidentiary hearing. Id., ¶ 13. The court of appeals concluded that

based on the statutory language of Wis. Stat. § 19.85, the legislature intended for the substance of closed sessions to remain protected from public disclosure. Accordingly, the discussions which occurred at the closed sessions in this matter are not discoverable.

Id., ¶ 15.

¶ 12 Sands petitioned this court for review of the court of appeals' decision, and on June 12, 2007, we granted review.


¶ 13 We review a circuit court's order compelling discovery under an erroneous exercise of discretion standard. Lane v. Sharp Packaging Sys., Inc., 2002 WI 28, ¶ 19, 251 Wis.2d 68, 640 N.W.2d 788. Under that standard, we will sustain discretionary acts if we find the circuit court examined the relevant facts, applied a proper standard of law, and using a demonstrative rational process, reached a conclusion that a reasonable judge could reach. Id. However, whether the circuit court applied the proper legal standard is a question of law we review independently of the circuit court but benefiting from its analysis. Id. The burden of proof is on the appellant to show that the circuit court erroneously exercised its discretion in granting a litigant's right to discovery. Shibilski v. St. Joseph's Hosp. of Marshfield, Inc., 83...

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