The state's open records law survived a
"This review raises a single question that was well stated by the court of appeals," Justice Shirley Abrahamson wrote for the majority. "Is a district attorney an "employee" as that term is used in...(state law)...such that the district attorney may maintain an action for notice and pre-release judicial review of records?"
On such technical issues do laws thrive or get gutted. In this case, for now, the law lives on.
Abrahamson noted in her decision that the open records law is not always easy to read or decipher,
"Nevertheless, by analyzing the public records law step by step, we can resolve the present case...," she wrote. "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 (the statute)."
The case stems from a State Department of Justice investigation into allegations about Vilas County District Attorney Albert Moustakis. The DOJ found that the allegations were unsubstantiated.
The Lakeland Times, a regional newspaper, filed a request with DOJ for records related to the investigation. and other documents about complaints against Moustakis and correspondence between Moustakis and DOJ.
DOJ, as a courtesy, notified Moustakis that it was going to release the records to the Lakeland Times. Moustakis went to court to block the release. He lost, but appealed. He lost in the State Court of Appeals, too.
A win for Moustakis would have allowed independently elected officials to delay the release of records about themselves. As applied to justices on the Supreme Court, which has yet to even rule on whether the open records law applies to them, a Moustakis victory might well grind to a halt the release of any records -- who would conduct a judicial review if Supreme Court justice's challenged a decision to release records?
During oral arguments before the court, some justices were rather openly hostile to the way DOJ handled the records request and treated Moustakis.
Abrahamson was joined in her decision by Justices Ann Walsh Bradley, Rebecca G. Bradley, and David T. Prosser.
Chief Judge Patience Roggensack concurred in part, but wrote that she would have reinstated Moustakis' claim because she believed he was entitled to statutory notice and, if he sought it, judicial review before the records were released. Roggensack was joined in her opinion by Justice Michael J. Gableman and Annette K. Ziegler.
The case is not over. Moustakis is pursuing two other claims related to the records release. The Supreme Court did not consider those; they are pending in circuit court.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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