Reuters: Sen. Ron Johnson won't support presidential nominee for Western District U.S. Attorney position.

Johnson cited now-deleted "partisan" tweets by Sopen Shah about Republicans and the Jan. 6, 2021, attack on the U.S. Capitol in declaring he would not return a so-called "blue slip" supporting her nomination to become the second woman to serve as the U.S. attorney for the Western District of Wisconsin.

Madison.com: Judge rejects Michael Gableman's request for recusal in open-records case.

Milwaukee Journal Sentinel: Abortion law and practice in 1800s Wisconsin.

Star Tribune: U.S. Supreme Court being asked to review Minnesota case granting qualified immunity to highway engineer who detained trucks.

"The Supreme Court has always been clear: qualified immunity is intended to provide breathing room so officials can comfortably do their jobs," said Anya Bidwell, an attorney representing Central Specialties. "If they don't do their jobs but simply hide behind their government employment, like engineer Large did here, qualified immunity doesn't apply."
​
Some civil-liberties and police-reform advocates worry the case opens the door for all types of government employees to act as police, with citizens having little course for redress.

Reuters: Senate confirms Judge Michelle Childs for D.C. Circuit.

Among the Republicans backing her were South Carolina's two senators including Senator Lindsey Graham, who has said he would have supported Biden picking her to succeed liberal Supreme Court Justice Stephen Breyer upon his retirement.

Reuters: Indiana doctor who performed abortion for 10-year-old rape victim files administrative defamation claim against state attorney general.

NBC: House passes bill to protect same-sex marriage.

Above the Law: Lawyer's attempt at inside joke with sexist remark in court leads to referral for discipline.

Threshold issues

The Democratic Senatorial Campaign Committee challenged the plaintiffs' standing in the case. Only Roggensack and Ziegler joined in Grassl Bradley's reasoning in rejecting the challenge, meaning that her lead opinion does not constitute a binding precedent on the question.

DSCC argues the Wisconsin voters lack standing, asserting they "have not demonstrated 'a personal stake in the outcome of the controversy' separate and apart from the public at large, nor have they shown they have 'suffered or [are] threatened with an injury to an interest that is legally protectable.' " ​We reject this argument because the Wisconsin voters do have a "stake in the outcome" and are "affected by the issues in controversy." 
                                                                                ***

If the right to vote is to have any meaning at all, elections must be conducted according to law. Throughout history, tyrants have claimed electoral victory via elections conducted in violation of governing law. For example, Saddam Hussein was reportedly elected in 2002 by a unanimous vote of all eligible voters in Iraq (11,445,638 people). Examples of such corruption are replete in history. In the 21st century, North Korean leader Kim Jong-un was elected in 2014 with 100% of the vote while his father, Kim Jong-il, previously won 99.9% of the vote. Former President of Cuba, Raul Castro, won 99.4% of the vote in 2008 while Syrian President Bashar al-Assad was elected with 97.6% of the vote in 2007. Even if citizens of such nations are allowed to check a box on a ballot, they possess only a hollow right.* Their rulers derive their power from force and fraud, not the people's consent. By contrast, in Wisconsin elected officials "deriv[e] their just powers from the consent of the governed." 

​The right to vote presupposes the rule of law governs elections. If elections are conducted outside of the law, the people have not conferred their consent on the government. Such elections are unlawful and their results are illegitimate. ...

The Wisconsin voters' injury in fact is substantially more concrete than the "remote" injuries we have recognized as sufficient in the past. The record indicates hundreds of ballot drop boxes have been set up in past elections, prompted by the memos, and thousands of votes have been cast via this unlawful method, thereby directly harming the Wisconsin voters. The illegality of these drop boxes weakens the people's faith that the election produced an outcome reflective of their will. The Wisconsin voters, and all lawful voters, are injured when the institution charged with administering Wisconsin elections does not follow the law, leaving the results in question. 

                                                                                ***

Justice Brian Hagedorn disagrees with our standing analysis, proffering an alternative basis for standing divined from searching the penumbra of Wis. Stat. § 5.06. Although § 5.06 appears nowhere in the complaint and sets forth specific procedures that were never invoked, Justice Hagedorn concludes it nevertheless confers standing on the Wisconsin voters. It can't.

Grassl Bradley, joined by Roggensack and Ziegler, also finds that the two voters did not first have to file their complaint with WEC and that the agency abandoned any sovereign immunity defense.

Although WEC asserted in its answer that sovereign immunity barred "some" of the Wisconsin voters' claims, it did not say which ones. No reasonable judge could view WEC's briefing and answers at oral argument as maintaining a sovereign immunity defense. WEC's attorney even said at oral argument that WEC takes "no position" on the matter. 

*In a footnote, Grassl Bradley writes, "Justice Hagedorn seems to disagree, indicating the right to vote encompasses nothing more than the mere ability to cast a ballot. He fails to recognize that a lawful vote loses its operative effect if the election is not conducted in accordance with the rule of law."

The guts

(Joined by Hagedorn, Roggensack and Ziegler)

WEC's staff may have been trying to make voting as easy as possible during the pandemic, but whatever their motivations, WEC must follow Wisconsin statutes. Good intentions never override the law.

                                                                                ***

Nothing in the statutory language detailing the procedures by which absentee ballots may be cast mentions drop boxes or anything like them. ​

Wisconsin Stat. § 6.87(4)(b)1. provides, in relevant part, that absentee ballots "shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots." The prepositional phrase "to the municipal clerk" is key and must be given effect. ... An inanimate object, such as a ballot drop box, cannot be the municipal clerk. At a minimum, accordingly, dropping a ballot into an unattended drop box is not delivery "to the municipal clerk[.]"

State law allows establishment of alternate absentee ballot sites, Grassl Bradley writes.

Ballot drop boxes are not alternate absentee ballot sites because a voter can only return the voter's absentee ballot to a drop box, while an alternate site must also allow voters to request and vote absentee at the site. If a drop box were an alternate ballot site, by the plain language of the statute, "no function related to voting and return of absentee ballots that is to be conducted at the alternate site may be conducted in the office of the municipal clerk or board of election commissioners." 

Existing outside the statutory parameters for voting, drop boxes are a novel creation of executive branch officials, not the legislature. The legislature enacted a detailed statutory construct for alternate sites. In contrast, the details of the drop box scheme are found nowhere in the statutes, but only in memos prepared by WEC staff, who did not cite any statutes whatsoever to support their invention.

Wisconsin Stat. § 6.855 identifies the sites at which in person absentee voting may be accomplished—either "the office of the municipal clerk" or "an alternate site" but not both. "An alternate site" serves as a replacement for "the office of the municipal clerk" rather than an additional site for absentee voting. Wisconsin Stat. § 6.87(4)(b)1. requires the elector to mail the absentee ballot or deliver it in person, "to the municipal clerk," which is defined to include "authorized representatives." This subparagraph contemplates only two ways to vote absentee: by mail and at "the office of the municipal clerk" or "an alternate site" as statutorily described. No third option exists.

                                                                                ***

The defendants contend "to the municipal clerk" encompasses unstaffed drop boxes maintained by the municipal clerk. A hyper-literal interpretation of this prepositional phrase, taken out of context, would permit voters to mail or personally deliver absentee ballots to the personal residence of the municipal clerk or even hand the municipal clerk absentee ballots at the grocery store. "Municipal clerk," however, denotes a public office, held by a public official acting in an official capacity when performing statutory duties such as accepting ballots. The statutes do not authorize the municipal clerk to perform any official duties related to the acceptance of ballots at any location beyond those statutorily prescribed.

Milwaukee Journal Sentinel: Jury awards plaintiff $386,000 for civil rights violations by Milwaukee police officers.

A February memo from the city's Legislative Reference Bureau indicated that in all, the settlements and other costs in cases against the former officer (Michael Vagnini) have cost the city more than $6.3 million. Eight previous settlements have ranged from $35,000 to $5 million, according to the memo.

Milwaukee Journal Sentinel: Chantia Lewis pleads guilty to two felonies and is removed from aldermanic office.

Thomson Reuters Foundation: Abortion may become unavailable to women under house arrest. 

That means crossing state borders could be the only option for some abortion-seekers - something often impossible for the growing number of women wearing tracking tags while under house arrest, awaiting trial, or ahead of immigration proceedings.

"Wearing an electronic monitor, sometimes you can't even go outside the house, let alone to another state to seek medical care," said Susan Burton, the founder of A New Way of Life, a Los Angeles-based re-entry program for formerly incarcerated women.

Brookings: Concerns mount regarding privacy rights amid widespread data collection.

Under modern-day surveillance capitalism, interested parties can collect and monetize online data at an unprecedented scale with little scrutiny or limitation. That is why the recent overturning of Roe v. Wade highlights the urgent and pressing need for comprehensive federal privacy legislation, particularly to reduce the potential for further exploitation and manipulation of individuals who seek fair reproductive rights. Further, Congress needs to find consensus around federal privacy legislation to address other surveillance and data collection concerns, in particular commercial surveillance practices that enable discriminatory advertising, racially biased policing, and the outing or surveillance of historically marginalized groups.

Above the Law: Lunch menu for those taking the New York bar exam offers sandwiches for minimum of $33 — and up to $53 for kosher options.

Kenosha News: Kenosha County approves repeal of weapons ban.

Guns and electronic control devices will be allowed in most Kenosha County buildings after the 14-7 vote. The board also voted 15-6 to declare the county a sanctuary for Second Amendment rights, opposing any state or federal legislation enacted that would infringe residents’ right to bear arms.

Milwaukee Journal Sentinel: Grafton dentist gets 4-1/2 years in federal prison for fraud scheme involving breaking patients' teeth to recover insurance money for crowns.

Madison.com: Assembly Speaker Robin Vos ordered to produce more records and pay attorney's fees of American Oversight.

APG Wisconsin: Wisconsin Court of Appeals says lawsuit claiming sexual assault of child by coach is timely.

In May 2021, Circuit Judge Rhonda Lanford dismissed that last claim, finding that state law required it to be filed within three years, though she noted that as a minor at the time of the incidents, the woman had until she was 20. At the time the woman first filed her lawsuit she was 34.

But a three-judge panel of the state appeals court, led by Judge JoAnne Kloppenburg, disagreed, finding that under state law, in actions related to violations of state laws involving child sexual assault, the woman had until she was 35 to file her lawsuit.

Associated Press: Investigative report on Uvalde school shooting notes multiple errors.

Nearly 400 law enforcement officials rushed to a mass shooting at a Uvalde elementary school, but “egregiously poor decision-making” resulted in more than an hour of chaos before the gunman who took 21 lives was finally confronted and killed, according to a damning investigative report released Sunday.

The nearly 80-page report was the first to criticize both state and federal law enforcement, and not just local authorities in the South Texas town for the bewildering inaction by heavily armed officers as a gunman fired inside two fourth-grade classrooms at Robb Elementary School, killing 19 students and two teachers.

West Virginia Record: Attorney says West Virginia judge wore gun in holster during trial then pulled it out and pointed it at attorneys during a hearing.

“As Judge (David) Hummel reached for his firearm, he said, ‘Aren’t me and my guns and security enough?’ (Attorney Lauren) Varnado’s affidavit states. “’My guns are bigger than your security’s guns!’ He pointed the barrel of the gun – first, at the table where defendants’ counsel, David Dehoney and Jennifer Hicks, were seated, and then, at the podium where I was standing.

“Judge Hummel then set his gun down on the judicial bench and deliberately rotated the firearm (as it laid on the bench) until the barrel of the gun was pointing directly at me.”

Reuters: Report shows how money making perpetuates mass incarceration.

An obscure web of bureaucracy incentivizes local officials around the U.S. to jail more people in order to generate revenue, rather than advance public safety, according to a new report from the Brennan Center for Justice.

Those perverse incentives have created what researchers referred to as a “market in incarcerated people,” an industrial complex that transforms humans into objects of trade and advances mass incarceration.

Vera Institute of Justice: Not enough people were released from custody during the pandemic.

Vera research has shown that jail and prison populations decreased by 14 percent nationwide at the beginning of the pandemic. But releases actually decreased over time afterward. Parole boards granted fewer releases and, alarmingly, fewer people were released from prisons overall in 2020 than in 2019. The way releases were carried out also showed disparities. Women experienced significantly larger drops in incarceration rates than men, and eligibility criteria in certain places—like Arkansas—deepened racial inequity, with white people benefiting disproportionately from early release. By the winter of 2021 and into 2022, most release efforts had reversed or stalled, with jail and prison populations rebounding toward or surpassing pre-pandemic levels.

This is the chilling yet unsurprising state of things, given that jails and prisons are at odds with public health.

Wisconsin Examiner: Public health officials welcome approval of authority in recent Wisconsin Supreme Court decision.

​In a 4-3 ruling that was published Friday, July 8, a majority of justices concluded that state law gives local health officers the power to issue public health orders. The ruling also upheld a Dane County ordinance imposing penalties for disobeying the health director’s orders, and it found that neither the state law nor the ordinance violated the Wisconsin Constitution.
“Preserving the authority of local public health officials to be able to control communicable disease is a top priority for Wisconsin public health professionals,” says Dr. Geof Swain, president of the Wisconsin Public Health Association. “We were very pleased that authority was preserved in this ruling.”
At the same time, a forceful dissent by three of the court’s four conservative justices suggests the likelihood of future legal wrangling.

Reuters: President Biden picks up pace on judicial nominees.

NBC: Texas sues Biden administration over federal abortion rules.

Texas Attorney General Ken Paxton, in a lawsuit filed in the U.S. District Court for the Northern District of Texas, argued that federal law does not confer a right to an abortion.

The lawsuit comes three days after Health and Human Services Secretary Xavier Becerra warned hospitals and physicians that they are required to provide abortions in medical emergencies where it is necessary treatment to protect the life of a pregnant woman. Becerra said hospitals and physicians who refuse to comply could have their Medicare provider agreements terminated and face financial penalties.

Cato Institute: Did Trump lie about reason for Muslim ban?

In a 5–4 decision, the Court’s majority found that the ban was based not on Trump’s open animus against Muslims, but instead on a Department of Homeland Security (DHS) report that supposedly detailed national security concerns. But the majority simply accepted this report as legitimate without ever seeing it. Indeed, DHS has allowed no one outside the Executive branch to see it.

​After President Biden rescinded the ban—which he called “discriminatory”--(David J. Bier) filed a Freedom of Information Act (FOIA) request on behalf of the Cato Institute for the DHS report. DHS ignored it, so now Cato is suing. It will be the first time Biden’s DHS will have to either justify keeping the report a secret from the public or else release it. Even if DHS refuses to release the report, the court can order it to do so.

Rolling Stone: Indiana's Republican attorney general now investigating doctor who provided abortion for 10-year-old rape victim.

SCOWstats: Initial impressions from the Wisconsin Supreme Court's 2021-2022 term statistics.

CNN: Montgomery County, Maryland, police to start enforcing disturbing-the-peace laws against protestors outside justices' homes.

Slate: Justice Amy Coney Barrett's actions show she's in over her head.

This tactical retreat from the public eye hints at the headwinds that Barrett faced in her second year on the court. The justice was ill-prepared for many aspects of her job, and after a series of unforced errors, she has faded into the background whenever possible. As a result, the woman who entrenched the Republican Party’s control over the federal judiciary comes across more as a loyal backbencher than an independent thinker.

Reuters: Indiana's Republican senators approve Seventh Circuit nominee.

Republican Senators Todd Young and Mike Braun of Indiana on Wednesday both returned "blue slips" indicating their support for U.S. Magistrate Judge Doris Pryor, nominated to become the first Black person from their state to serve on the 7th U.S. Circuit Court of Appeals.

​E&E News: The impact of legal uncertainty for the Environmental Protection Agency and the environment.

“I’m not sure that the court’s intent was to create uncertainty, but I also don’t get the sense that the conservative justices will mind if the uncertainty that this decision foments causes agencies like EPA to disfavor creative solutions to new problems,” said Lisa Heinzerling in an interview. She wrote the winning briefs in a 2007 Supreme Court case that established EPA’s authority to regulate greenhouse gases. . . .

But additional cases take additional time. And EPA doesn’t have years to lose.

The Guardian: Are prison jobs modern-day slavery?

Among the more than 1.2 million Americans imprisoned in federal and state prisons, two out of three are forced to work while imprisoned. The 13th amendment of the US constitution abolished slavery or involuntary servitude, but included an exception for prisoners; critics have called prison work modern-day slavery. . . .

According to a June 2022 report published by the American Civil Liberties Union, prison labor generates more than $11bn annually, with more than $2bn generated from the production of goods, and more than $9bn generated through prison maintenance services. Wages range on average from 13 cents to 52 cents per hour, but many prisoners are paid nothing at all, and their low wages are subject to various deductions.

Yahoo! Finance (Evening Standard): Video doorbells and mass surveillance.

After a series of controversies over Ring cameras, including reports of staff listening in to customers’ video feeds and concern over the gadget’s ties with law enforcement in the US and the UK, Amazon has tightened the rules. But does this go far enough?

U.S. News & World Report: Wisconsin Elections Commission deadlocks on guidance for clerks regarding absentee ballots.

​Star Tribune: Walgreen's backs Wisconsin employee who refused to ring up condoms.

But last month, as Supreme Court Justice Clarence Thomas joined the majority in erasing abortion rights for half the country, he revisited his shopping list of other "demonstrably erroneous" precedents the court could tackle next. Including the 1965 Griswold v. Connecticut ruling that guaranteed married couples a right to privacy in their bedrooms — including the right to buy and use contraceptives.

Generations after Griswold, (Jessica) Pentz stared in shock at a middle-age stranger who was telling her his personal opinions trumped her constitutional rights.

Channel 3000: Wisconsin Attorney General Josh Kaul calls for regulations on ghost guns.

Kaul joins the Attorneys General of California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, and Washington.

Vox: U.S. Supreme Court to consider who is in charge of Immigration and Customs Enforcement priorities.

Still, the stakes in the Texas case are high. ICE employs nearly 8,000 individuals in enforcement and removal operations, many of whom are sworn law enforcement officers who carry a badge and a gun. Either these individuals are under the command and control of political officials — as federal law says that they are — or they are free to set their own priorities without oversight from anyone responsible to the American people.

AZ Mirror: Federal judge blocks Arizona's abortion prohibition.

U.S. District Court Judge Douglas L. Rayes said Arizona’s legal definition of a person conflicts with what a fetus is in every legal sense.

NBC: Judge orders U.S. Sen. Lindsey Graham to testify before Georgia grand jury investigating possible election interference by Donald Trump.

Milwaukee Journal Sentinel: Court approves UWM demolition of Columbia Hospital.

State Bar of Wisconsin: Kelli Thompson on current issues at the State Public Defender's Office.

Reuters: Call for federal judicial code of conduct to bar retirement contingent on particular successor.

The U.S. Judicial Conference's Codes of Conduct Committee should step in to address a pattern of "unseemly behavior" by judges trying to dictate White House nominations, Gabe Roth, Fix the Court's executive director, said in an email last week that he released on Monday. . . .

Roth cited U.S. Circuit Judge Michael Kanne's 2018 decision to take senior status contingent on an ex-clerk, Indiana Solicitor General Tom Fisher, being nominated to take his place on the Chicago-based 7th U.S. Circuit Court of Appeals.

Kanne reversed course after learning then-Republican President Donald Trump would not nominate Fisher after then-Vice President Mike Pence, the former governor of Indiana, opposed the pick. Kanne died in June still an active 7th Circuit judge.

Slate: Federal judge rules that poor mental health care in Arizona's prisons constitutes cruel and unusual punishment.

In 2015, the parties reached a settlement, which required the state prison system to comply with a lengthy list of performance measures—but there is little evidence anything has improved. Between 2016 and 2021, the state prison system was held twice in contempt of court and fined, literally, millions of dollars. Finally, in July 2021, federal judge Roslyn Silver vacated the settlement. In November of that year, she held a three-week trial, which led her to conclude “the conditions are now the same, or worse, than the conditions present at the outset of this litigation.”

In a searing 200-page ruling published June 30, Silver wrote that the case boiled down to two questions: “Are Defendants violating the constitutional rights of Arizona’s prisoners through the existing medical and mental health care system? And are Defendants violating the constitutional rights of a subset of Arizona’s prisoners by almost round-the-clock confinement in their cells?”

The answer to both questions, she wrote, is yes.

CNN: Federal judge denies Steve Bannon's request to postpone next week's trial on contempt charges and limits evidence regarding executive privilege.

Women's Health: The struggle for women to access mental health care in prison.

Women represent less than 10 percent of the country’s incarcerated population, but they’re more likely than men to suffer from co-occurring substance use and mental health disorders, according to Holly Ventura Miller, PhD, a professor and graduate program director at the University of North Florida’s Criminology and Criminal Justice Department.

These compounding factors put women at the highest risk for relapse and recidivism (returning to prison); it also, however, makes them ideal candidates for receiving in-prison mental health care and social support.

CNBC: Justice Department investigating PGA Tour for anti-competitive actions.

The investigation, first reported by The Wall Street Journal, comes after the tour last month indefinitely suspended 17 players, including major championship winners Phil Mickelson and Dustin Johnson, after they chose to compete in the Saudi-backed LIV Golf tournament.

Herald & Review: Federal appeals court upholds right to record video of police.

The 10th Circuit Court of Appeals in Denver ruling came in the case of a YouTube journalist and blogger who claimed that a suburban Denver officer blocked him from recording a 2019 traffic stop. Citing decisions from the other courts over about two decades as well as First Amendment principles, the 10th Circuit said the right to record police was clearly established at the time and reinstated the lawsuit of the blogger, Abade Irizarry.

A three-judge panel from the court said that “Mr. Irizarry’s right to film the police falls squarely within the First Amendment’s core purposes to protect free and robust discussion of public affairs, hold government officials accountable, and check abuse of power.”

The upshot

When ascertaining if a records requester is entitled to attorney's fees as a part of a mandamus action under the state's public records law, a party must "prevail[] in whole or in substantial part," which means the party must obtain a judicially sanctioned change in the parties' legal relationship. With respect to the mandamus action before us, the City properly applied the balancing test when it decided to temporarily withhold access to the draft contract in response to Friends' open records request. Accordingly, regardless of whether Friends may pursue fees after voluntary delivery of the requested record, Friends cannot prevail in its mandamus action and is not entitled to attorney's fees.

Background

Friends of Frame Park, a citizens' group, in October 2017 requested information about the city's plan to bring baseball to Waukesha and to Frame Park. The city rejected a request for a copy of the proposed contract with Big Top Baseball, saying it was still in negotiation and the city wanted to protect its bargaining position. The city said it would release the proposed contract after the Common Council took action on it.

The contract was on the Common Council agenda for Dec. 19, 2017. Friends sued on the day before the meeting for release of the records.

The following evening, the City's Common Council met. It is unclear from the meeting minutes whether, or to what extent, the draft contract was discussed. The minutes note the following with respect to Frame Park: "Citizen speakers registering comments against baseball at Frame Park"; the "City Administrator's Report" included a "Northwoods Baseball League Update"; and an "item for next Common Council Meeting under New Business" was to, "Create an ADHOC Committee for the purpose to address Frame Park and Frame Park issues." 

The city released the requested records on Dec. 20, even though the council had not voted on the contract.

Consistent with its explanation initially denying release, the City explained the documents "are being released now because there is no longer any need to protect the City's negotiating and bargaining position."

Friends then amended its complaint, asking the circuit court to hold that the City improperly withheld the draft contract. In advance of trial, the City filed a motion for summary judgment which the circuit court granted; Friends did not move for summary judgment. ...

Friends appealed, and the Court of Appeals reversed the lower court decision. The city appealed to SCOW.

The guts
​
Four justices agree that to "prevail[] in whole or in substantial part" means the party must obtain a judicially sanctioned change in the parties' legal relationship. Accordingly, a majority of the court adopts this principle. 

This conclusion arguably raises other statutory questions. Prior court of appeals cases have held that a requester could still pursue attorney's fees even if the records have been voluntarily turned over. This conclusion rested on its causation-based theory, however. The concurrence argues that under the proper statutory test we announce today, a mandamus action becomes moot after voluntary compliance, and record requesters have no separate authority to pursue attorney's fees. We save this issue for another day. Even if record requesters can pursue attorney's fees following release of the requested records, an award of fees would not be appropriate here. This is so because in temporarily withholding the draft contract, the City complied with the public records law. Applying the balancing test, the City pointed to the strong public interest in nondisclosure – namely, protecting the City's negotiating and bargaining position and safeguarding the Common Council's prerogative in contract approval. These considerations outweigh the strong public policy in favor of disclosure. Furthermore, the City recognized the balance of interests would shift after the Common Council meeting, and it properly disclosed the draft contract at that time. Therefore, the City did not violate the public records law. And thus, the requester did not and could not prevail in whole or substantial part in this action. Therefore, no judicially sanctioned change in the parties' relationship is appropriate and the requester is not entitled to any attorney's fees. 
                                                                             
                                                                                  ***
Section 19.37 of the state statutes provides that the record requester may be entitled to various damages and fees as a result of the mandamus action. Relevant to this case, the statute contains the following fee-shifting provision: "Except as provided in this paragraph, the court shall award reasonable attorney fees, damages of not less than $100, and other actual costs to the requestor if the requester prevails in whole or in substantial part in any action filed under sub. (1) relating to access to a record or part of a record. ..."  Besides attorney's fees, the law also specifies that the circuit court shall award actual damages if "the authority acted in a willful or intentional manner" and may award punitive damages if the authority "arbitrarily and capriciously denied or delayed response to a request or charged excessive fees."

The fee-shifting provision was comparable to one contained in the federal Freedom of Information Act, Hagedorn said.  A federal appeals court ruled that damages could be awarded if records were released prior to the conclusion of a FOIA case if bringing the case caused the records to be released. In 2001, however, the U.S. Supreme Court rejected that reasoning.

It expressly rejected ... the causation-based interpretation, concluding instead that "the term 'prevailing party' " refers to "one who has been awarded some relief by the court." Congress eventually adopted a law restoring the causation provision. The Wisconsin Legislature has not specifically embraced causation-based awards, Hagedorn said.

When the legislature uses a legal term of art with a broadly accepted meaning – as it has here with "prevails" ... we generally assume the legislature meant the same thing. If the idea that a party could prevail in a lawsuit in the absence of court action was unknown in Wisconsin when this statute was adopted, we should not read that interpretation into the statute now given the absence of any evidence that it was understood to have that meaning when enacted.

A causation or catalyst theory is not a comfortable fit with statutory text that allows recovery of attorney's fees "if the requester prevails in whole or in substantial part in any action."  The better course is to follow the United States Supreme Court's lead and return to a textually-rooted understanding of when a party prevails in a lawsuit. Absent a judicially sanctioned change in the parties' legal relationship, attorney's fees are not recoverable. ...

Without a causation-based theory governing the meaning of prevailing party under the statute, however, it is unclear whether voluntary compliance following the filing of a lawsuit could still allow a requester to pursue fees. We reserve this question for another day. Even if attorney's fees may be awarded after the voluntary production of records, the City here did not violate the law, as explained below. Friends therefore would not be entitled to any judicial relief – that is, it would not prevail in whole or substantial part – even if fees are available in this context. Accordingly, Friends is not entitled to attorney's fees either way.

                                                                                  ***

Invoking the language in Wis. Stat. § 19.85(1)(e) (exemptions to open meetings requirements) the City explained that "the contract [was] still in negotiation with Big Top." Withholding disclosure was important to "protect the City's negotiation and bargaining position" and "the City's ability to negotiate the best deal for the taxpayers." Disclosure "would substantially diminish the City's ability to negotiate different terms the Council may desire for the benefit [of] the City" and "compromise[]" "the City's negotiating and bargaining position." The City further explained that the "draft contract is subject to review, revision, and approval of the Common Council before it can be finalized, and the Common Council [has] not yet had an opportunity to review and discuss the draft contract." The City indicated it would disclose the draft contract after the Common Council had taken action.

The circuit court correctly concluded the reasons set forth in the City's letter supported temporarily withholding the draft contract. Without question, the public interest in matters of municipal spending and development is significant. There is good reason for the public to know how government spends public money. This ensures citizen involvement and accountability for public funds. However, contract negotiation often requires a different calculus. Wisconsin ... law identifies the public interest in protecting a government's "competitive or bargaining" position in adversarial negotiation. It is not uncommon for the state or local municipalities to negotiate certain contracts in private, especially in competitive business environments. ...

Under these circumstances, the City's interest in withholding the draft contract to protect its bargaining position until the Common Council had the opportunity to consider the contract outweighed the public's interest in immediate release. The City properly applied the balancing test and did not violate the public records law by temporarily withholding the draft contract, nor did it delay release of the contract unreasonably. Accordingly, regardless of whether the issue of attorney's fees is moot, Friends is not entitled to attorney's fees because it did not prevail in whole or in substantial part on the merits of its mandamus action.

Concurrence

The court of appeals has repeatedly failed to give the legal term of art in statute its accepted legal meaning. In at least six cases, the court of appeals has instead endorsed the now-defunct "catalyst theory," under which a party may be deemed to have prevailed – even in the absence of favorable relief from a court – if the lawsuit achieved at least some of the party's desired results by causing a voluntary change in the defendant's conduct.

In this case, the court of appeals erred in applying ... precedents, embracing a purposivist and consequentialist approach to statutory interpretation, in derogation of the textualist approach Wisconsin courts are bound to follow.  

I write separately because the majority/lead opinion does not acknowledge this case is moot, obviating any need to address the merits. All records were given to the requester before the circuit court ever rendered a decision. ... In this case, the act requested had already been performed, so neither the circuit court nor the court of appeals nor this court needed to address the merits of Friends' public records claim. Because this case is moot, we need not consider whether Friends is entitled to relief. Without favorable relief, Friends cannot recover attorney fees. Because the majority/lead opinion reaches the merits of this case without any explanation of what possible favorable relief could be granted, I respectfully concur.

After the public records statute damages section was enacted in 1982, the court of appeals adopted the catalyst theory, which conflicts with the longstanding meaning of what it means to prevail in a court case. A "fair reading" of a statute requires adherence to the statute's text as it was understood at the time of the statute's enactment.