State v. Zien

• Decision Date: 16 September 2008
• Docket Number: No. 2007AP1930.,2007AP1930.
• Citation: 761 N.W.2d 15,2008 WI App 153
• Parties: STATE of Wisconsin, Plaintiff-Respondent, Daniel P. Bach, Plaintiff, Peggy A. Lautenschlager, Plaintiff-Appellant-Cross-Respondent, v. David A. ZIEN, Defendant-Respondent, Scott L. Gunderson, Defendant-Respondent-Cross-Appellant.
• Court: Wisconsin Court of Appeals

761 N.W.2d 15

2008 WI App 153

STATE of Wisconsin, Plaintiff-Respondent Daniel P. Bach, Plaintiff Peggy A. Lautenschlager, Plaintiff-Appellant-Cross-Respondent, v. David A. ZIEN, Defendant-Respondent Scott L. Gunderson, Defendant-Respondent-Cross-Appellant.

No. 2007AP1930.

Court of Appeals of Wisconsin.

Submitted on Briefs June 2, 2008.

Opinion Filed September 16, 2008.

On behalf of the plaintiff-appellant-cross respondent, the cause was submitted on the briefs Robert J. Dreps of Godfrey & Kahn, S.C., of Madison and Bruce M. Davey of Lawton & Cates, S.C., of Madison.

On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the briefs of Eric M. McLeod and Paul D. Barbato of Michael Best & Friedrich LLP of Madison.

On behalf of the defendant-respondent, the cause was submitted on the brief of Thomas M. Pyper and Cynthia L. Buchko of Whyte Hirschboeck Dudek S.C. of Madison.

An amicus curiae brief was filed by Brian E. Butler and Meg Vergeront of Stafford Rosenbaum LLP of Madison for the National Conference of State Legislatures.

Before CURLEY, P.J., KESSLER and NEUBAUER, JJ.

¶ 1 KESSLER, J

Former Attorney General Peggy A. Lautenschlager appeals from a judgment, entered after summary judgment proceedings, dismissing a WIS. STAT. § 19.37(1)(2005-06)¹ mandamus action that sought to compel state legislators David A. Zien and Scott L. Gunderson to provide Lautenschlager with drafts of legislation related to carrying a concealed weapon. Lautenschlager, who filed the case when she was attorney general, argues that the trial court erroneously denied her motion to substitute counsel that she filed after she was no longer attorney general, and that summary judgment should have been granted against the defendants. Gunderson cross-appeals from the trial court's holding that Lautenschlager was acting in her personal capacity when she initially requested the drafts when she was attorney general.

¶ 2 We conclude that Lautenschlager, who was no longer the attorney general at the time she moved to substitute counsel or when summary judgment was granted, lacked standing to seek a substitution of counsel or to appeal the judgment. We reach that conclusion because Lautenschlager filed the mandamus action in her official capacity as attorney general pursuant to WIS. STAT. § 19.37(1)(b), and not as a private citizen pursuant to § 19.37(1)(a). The authority to direct the litigation and appeal the judgment lies with the person holding the office of attorney general, now J.B. Van Hollen, who chose not to appeal the judgment. We further reject Lautenschlager's argument that she has standing to appeal the judgment as an "aggrieved party." Finally, we decline to consider Lautenschlager's argument that after she ceased to be attorney general, she should have been allowed to convert this action to a § 19.37(1)(a) action, because that issue is raised for the first time on appeal. We dismiss the appeal.

¶ 3 Because we dismiss the appeal for the reasons noted above, we do not reach the merits of the summary judgment, of Zien's argument that the action is moot, or of the cross-appeal.² Resolution of those issues is not necessary, and we decline to address them. See State v. Blalock, 150 Wis.2d 688, 703, 442 N.W.2d 514 (Ct.App. 1989) ("[C]ases should be decided on the narrowest possible ground."). We dismiss both the appeal and the cross-appeal.

BACKGROUND

¶ 4 On August 18, 2005, Deputy Attorney General Daniel P. Bach sent a letter, on Department of Justice letterhead, to State Senator Zien and State Representative Gunderson seeking records pursuant to Wisconsin's Open Records Law, WIS. STAT. §§ 19.31-19.39. The letter stated: "Pursuant to Chapter 19, Wisconsin Statutes, I hereby request copies of any 2005 Legislative Session bill drafts your offices have been working on relating to carrying a concealed weapon that have been shared with anyone outside the legislature or the Legislative Reference Bureau."

¶ 5 In response, on August 23, 2005, Gunderson and Zien wrote Bach a letter indicating they believed that Bach's open records request conflicted with WIS. STAT. § 19.32, which exempts from disclosure drafting records of un-introduced legislation. The letter stated they planned to confer with the Legislative Council, the Legislative Reference Bureau and others before providing a more detailed response to the request.

¶ 6 On August 25, 2005, Bach replied. His letter reiterated that he was seeking "only copies circulated to any third parties outside the legislature and the Legislative Reference Bureau" and referenced a letter by the attorney general concerning disclosure of such drafts. Bach's letter also stated: "As you know, the Department of Justice has a profound interest in any legislation impacting on public safety. If necessary, we will take appropriate measures to ensure not only our access, but that of the public to the type of bill drafts I have identified."

¶ 7 On September 1, 2005, Attorney General Lautenschlager filed suit in Dane County Circuit Court.³ The complaint identified the State of Wisconsin as plaintiff and Gunderson and Zien as defendants. It sought a judgment "declaring that legislative bill drafts circulated among third parties ... constitute `records' within the meaning of the public records law, WIS. STAT. § 19.32" and declaring that Gunderson and Zien "are responsible for producing the requested records as required by Wis. Stat. § 19.36(3)." It also sought an order of mandamus requiring production of the public records pursuant to WIS. STAT. § 19.37(1).⁴

¶ 8 Gunderson and Zien both moved to dismiss the complaint on grounds that Lautenschlager lacked standing to bring the action on behalf of the State of Wisconsin because there was no statutory authority for the attorney general to initiate a public records request on behalf of the State, or to seek a writ of mandamus to enforce such a request on the State's behalf.

¶ 9 On December 23, 2005, Lautenschlager filed an amended complaint that added Lautenschlager and Bach as plaintiffs, identifying them as the attorney general and deputy attorney general and using their Department of Justice address. It also added a third claim alleging that Gunderson and Zien's denial of access to the records was "arbitrary and capricious" in violation of WIS. STAT. § 19.37(3).

¶ 10 Gunderson and Zien both moved to dismiss the amended complaint. Gunderson asserted that the records request was made by Deputy Attorney General Bach at the direction of Attorney General Lautenschlager, both acting in their official capacities. He argued that because there is no statutory authority for the attorney general or deputy attorney general to request the records, they lacked standing.⁵

¶ 11 In response, Lautenschlager argued that the public records law did not bar Bach "from being a requester [of public records] simply because he is doing his job." She also asserted that she was a requester, because she directed Bach to make the request. She argued that nothing in the public records law bars an attorney general from bringing a WIS. STAT. § 19.37(1) enforcement action to enforce a valid request made by her or her employees.

¶ 12 On April 27, 2006, the trial court issued a written decision on the motion to dismiss. The trial court dismissed the State as a party, as well as the claims concerning declaratory judgment and arbitrary and capricious actions. However, the court denied the motion to dismiss with respect to the mandamus action. The court reasoned that the complaint supported the conclusion that both Bach and Lautenschlager had, acting in their personal capacities, requested the records (Bach by writing the letter and Lautenschlager by asking him to do so). The court further concluded that Lautenschlager had then filed the mandamus action acting in her official capacity, pursuant to WIS. STAT. § 19.37(1)(b). The trial court noted that neither Lautenschlager nor Bach had brought the action for mandamus pursuant to § 19.37(1)(a), which allows a requester to seek enforcement by personally filing an action for mandamus. See id.

¶ 13 Lautenschlager, Gunderson and Zien all moved for summary judgment in October 2006. Briefing was completed on December 11, 2006.

¶ 14 In the meantime, Van Hollen was elected attorney general in November 2006 and took office in January 2007. The first case activity in 2007 occurred in March 2007, when Assistant Attorney General Burkert-Brist wrote the trial court a letter stating that "the Department of Justice and the legislative leadership of both houses have reached agreement on the terms of a comprehensive settlement of this matter" and suggesting that the trial court hold off on further consideration of the motions for summary judgment. Ultimately, the settlement attempt failed.

¶ 15 On May 31, 2007, Lautenschlager, acting through two private law firms, filed a motion to substitute counsel, replacing Van Hollen and Burkert-Brist with the two private law firms. Her motion stated as grounds the fact that she was not being informed or consulted about settlement discussions in the case.

¶ 16 On June 6, 2007, the trial court conducted a hearing on Lautenschlager's motion. Gunderson and Van Hollen opposed the motion while Zien, who was no longer a state senator, took no position on it. The trial court denied Lautenschlager's motion, concluding that although she requested the public records in her personal capacity, she filed the action for mandamus in her official capacity as the attorney general. The trial court reasoned that when Van Hollen took over as attorney general, control of the case transferred to him.

¶ 17 The trial court further concluded that to the extent Lautenschlager was attempting to intervene as a party plaintiff in an action brought by the attorney general, that motion was denied.⁶ The court noted that both parties had already filed extensive written arguments on the summary judgment motions, all of...