author: ANDERSON, PJ. BROWN, J.

text:
    City of Pewaukee, Plaintiff-Appellant, v. Thomas L. Carter, Defendant-Respondent.
    Court of Appeals

      No. 03-1114.

      Submitted on briefs October 8, 2003.

      Decided November 19, 2003.

    2003 WI App 260
    (Also reported in 673 N.W.2d 380.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Rick D. Trindl and Julie A. Aquavia of Arenz, Molter, Macy & Riffle, S.C., Waukesha
    On behalf of the defendant-respondent, the cause was submitted on the brief of Rex R. Anderegg of Anderegg & Mutschler, LLP, Milwaukee.
    Before Anderson, PJ., Brown and Snyder, JJ.

       Petition to review granted 3-23-04.

   ANDERSON, PJ.

¶ 1. The City of Pewaukee appeals an order of the circuit court that granted Thomas L. Carter's motion to dismiss the City's appeal for a de novo trial filed under Wxs. Stat. § 800.14(4) (2001-02) in response to a municipal court's grant of Carter's motion for dismissal at the end of the City's case-in-chief. For the reasons explained below, we affirm.

¶ 2. Background Facts. The facts are not in dispute. Carter received two citations for operating a motor vehicle while intoxicated (OWI) and operating with a prohibited alcohol concentration (PAC). A trial before the municipal court was held on June 20, 2002. The City presented three witnesses who were examined by the City and then cross-examined by Carter's attorney. First, an analyst from the State Lab of Hygiene testified about the procedures he used to test the blood sample Carter had provided on July 27, 2001. Next, a citizen witness testified about an automobile accident in which he was involved on the morning of July 27, 2001, when his vehicle was struck by Carter's vehicle on Highway 74 in the city of Pewaukee.

¶ 3. Finally, City of Pewaukee Police Detective Neil Evens testified that he had been dispatched to take photographs of the scene of the accident in which Carter and the citizen witness were involved. Evens testified, among other things, that after photographing the scene, he Mirandized Carter, questioned him about the accident and what he had had to drink, and then took a statement from him. Evens acknowledged that Carter told him the accident occurred because a minivan had cut him off, which caused him to lose control of his vehicle. When the prosecutor asked Evens to identify in court the individual with whom he had spoken that night (i.e., Carter), he identified the wrong person. Carter's attorney stated that Carter was not in the courtroom and that Evens had improperly identified Carter's brother as Carter.

¶ 4. Following Evens' testimony, the prosecutor informed the court that he would not be moving to admit Carter's blood test results because he had learned during trial that the arresting officer — who could establish a foundation for the propriety of the blood draw— was unavailable to testify. The prosecutor then stipulated that he had no foundation for the admission of the blood test results. He told the court that he did not want an adjournment but, instead, wanted to proceed on the evidence presented. Thereafter, the prosecutor rested the City’s case.

¶ 5. Pertinent Facts. At the close of the City's case against Carter, Carter's attorney moved for dismissal on the grounds that the City had failed to meet its burden of proof. The court granted the motion primarily because the arresting officer was unavailable and could not provide critical testimony tying Carter to the blood test: "I don't think there was enough evidence here to go on with a drunk driving case if you don't have the arresting officer."

¶ 6. The City appealed the municipal court's decision requesting a new trial before the circuit court under the provisions of Wis. Stat. §800.14(4). Carter brought a motion to dismiss the action arguing that under Village of Menomonee Falls v. Meyer, 229 Wis. 2d 811, 601 N.W.2d 666 (Ct. App. 1999), in which this court interpreted § 800.14(4), an appeal requesting a new trial before the circuit court is not available unless the merits of a case are fully litigated before the municipal court.

¶ 7. At the motion hearing, the City argued that Meyer did not apply to the instant case because in Meyer there were "[n]o elements of a trial as we understand it." The City explained that in Meyer there was a pretrial motion in limine that a police report be excluded. The motion was granted. The prosecutor then said he could not proceed without the police report. At this point, the judge entertained and granted a defense motion to dismiss. The City argued that the facts make Carter's case and Meyer's case distinguishable because, unlike Meyer, here the prosecution had already presented its case-in-chief before the case was dismissed.

¶ 8. The circuit court disagreed with the City. It agreed instead with Carter that Meyer controlled. It dismissed the action, reasoning that Meyer requires that the action be fully litigated in the municipal court before either party can seek a trial de novo in the circuit court. The City now appeals the circuit court's decision.

¶ 9. On appeal, the City reasserts that the facts make Carter's case and Meyer's case distinguishable because, unlike Meyer, here the prosecution had already presented its case-in-chief before the case was dismissed. The City argues that therefore a trial was conducted in the municipal court which entitled the City to a trial de novo before the circuit court. The City also argues that granting a defendant's motion for dismissal at the close of a municipality's case results in the adjudication of the matter on the merits. Both arguments fail to persuade in light of our analysis of the law.

¶ 10. Law and Discussion. We agree with the circuit court and Carter that Meyer controls. In Meyer, the defendant was arrested for OWI, PAC and possession of a controlled substance and drug paraphernalia. Meyer, 229 Wis. 2d at 813. A village of Menomonee Falls municipal court trial was set. Id. Meyer's defense counsel made a discovery request that specifically asked for the narrative police report about Meyer's arrest. Id. The Village failed to produce the police report. Id. The Village informed Meyer that the report did not exist. Id.

¶ 11. Immediately before the trial, the Village discovered the missing police report. Id. Meyer made a motion in limine to prohibit use of the police report at trial. Id. The municipal court granted the motion. Id. Without the police report as evidence, the Village stated that it was unable to proceed. Id. After a motion from Meyer, the court dismissed the charges against him. Id.

¶ 12. The Village requested a new trial before the circuit court citing Wis. Stat. § 800.14(4). Meyer, 229 Wis. 2d at 813. Meyer responded with a motion to dismiss, arguing that the Village could not request a de novo trial before the circuit court when the merits of the case had not been determined before the municipal court. Id. After a hearing on the motion, the circuit court agreed with the Village that § 800.14(4) permitted a new trial before it. Meyer, 229 Wis. 2d at 813. A new trial was held. Id. Meyer was found guilty of OWI, PAC and possession of a controlled substance and was ordered to pay a forfeiture judgment. Id. at 813-14. Meyer appealed. Id. at 814. We reversed the circuit court's decision. Id. at 813.

¶ 13. The issue before us on appeal in Meyer was whether Wis. Stat. § 800.14(4) permits a new trial in the circuit court when a case was resolved but not fully litigated on the merits before the municipal court. Meyer, 229 Wis. 2d at 814. After a review and discussion of the legislative history, we concluded that the legislature modified § 800.14(4) to reduce the number of circuit court jury trials resulting from municipal court appeals. Meyer, 229 Wis. 2d at 815. Then, considering the legislature's intent for § 800.14(4), we determined that without a trial on the merits in the municipal court, a party could not request a new trial in the circuit court. Meyer, 229 Wis. 2d at 812-13. Although the facts are not identical, the issue in Meyer is the issue in the case at bar. Nonetheless, the City goes to great lengths to distinguish Carter's case from Meyer's and thus to insulate this case from the law of Meyer.

¶ 14. The City argues that Meyer does not apply to the instant case because in Meyer there were "[n]o elements of a trial as we understand it." The City claims that in the instant case, "the matter before the municipal court was a trial of the substantive issues ...." The City asserts that the circuit court's application of Meyer essentially requires the defendant to present a defense, a requirement not mandated under Wis. Stat. § 800.08(1). The City thus reduces the circuit court's decision to one based on its improper determination that a defendant must present evidence for a trial to have occurred.

¶ 15. The City's argument misunderstands our holding in Meyer and misconstrues the circuit court's reasoning for reliance on Meyer. Meyer did not hold that as long as "elements of a trial" take place in municipal court, this is enough to constitute the trial that is necessary before a de novo trial can occur in circuit court. Rather, Meyer explicitly held that "a full trial of the parties' issues in the municipal court is a condition precedent to a 'new' trial in the circuit court." Meyer, 229 Wis. 2d at 816 (emphasis added).

¶ 16. In contrast to our reasoning in Meyer, the City seems to be arguing that at the time Carter moved for dismissal, he waived any opportunity to present evidence in the event the municipal court denied his motion. According to the City's logic, after a plaintiff rests his or her case, a defendant must irrevocably choose between moving for dismissal on the basis of insufficiency of the plaintiffs evidence, (thereby completing the trial), or presenting evidence on his or her own behalf. This is not the law.

¶ 17. Thus, the City's interpretation of the circuit court's decision is unconvincing. Unlike the City, we do not view the circuit court's application of Meyer to require that the defendant present a defense. Rather, the circuit court's application of Meyer requires that the defendant have the opportunity to present a defense. This is a proper application of our reasoning in Meyer.

¶ 18. The circuit court recognized that Carter did not have the opportunity to present a defense in the municipal court. Before Carter presented any evidence of his own, he moved for dismissal based on insufficiency of the City's evidence. The municipal court responded:

I think there is a huge hole in this case and ... I don't think there was enough evidence here to go on with a drunk driving case if you don't have the arresting officer. So I'm going to grant the motion to dismiss it at this point. (Emphasis added.)

The grant of Carter's dismissal motion effectively truncated his opportunity to present a defense — an opportunity required for the merits of a case to be considered fully litigated.

¶ 19. In recognizing that Carter did not have the opportunity to present a defense in the municipal court, the circuit court recognized the flaw in the City's logic:

THE COURT: If the defense has the opportunity to proceed and rests, that is an entirely different situation.
PROSECUTOR: They did have that opportunity in this case, Your Honor. They chose to make a motion instead.
THE COURT: Well, that I don't find persuasive whatsoever. That is asking a defendant to lay down on its sword of seeking a dismissal if they feel that a case is deficient on the part of the plaintiff.... I am satisfied[] the Court of Appeals would not require that of any defendant.

¶ 20. The circuit court was quite correct in surmising that this court does not interpret Wis. Stat. § 800.14(4) to require that the defendant lay down on its sword of seeking a dismissal. A defendant does not have to choose between seeking a dismissal and the opportunity to present a defense if a motion to dismiss is denied. This would give a distinctly unfair advantage to the prosecution. We made evident in Meyer that a defendant who succeeded before the municipal court in getting the charges against him or her dismissed should not be faced with the possibility that the prosecution will be given a second chance to carry its burden of proof. See Meyer, 229 Wis. 2d at 816. "Such leaping from an adverse municipal court determination in search of a more favorable outcome in the circuit court is contrary to the legislature's intent for [§ 800.14(4)] — to reduce the number of new trial requests to the circuit court from municipal ordinance violations." Meyer, 229 Wis. 2d at 816.

¶ 21. Conclusion. Meyer instructs that Wis. Stat. § 800.14(4) "does not permit a new trial before the circuit court when the case was judicially resolved, but not fully litigated on the merits, before the municipal court." Meyer, 229 Wis. 2d at 818. In order for a matter to be resolved on the merits, both parties must have exercised the prerogative to present or to rest their case. Carter's case was "judicially resolved" (i.e., resolved by a question of law) but was not fully litigated on the merits when the municipal court granted his motion to dismiss made immediately after the City rested. The circuit court properly rejected the City's appeal for a new trial.

By the Court. — Order affirmed.

BROWN, J.

¶ 22. (dissenting). Wisconsin Stat.

§ 800.14(4) states:

Upon the request of either party within 20 days after notice of appeal under sub. (1), or on its own motion, the circuit court shall order that a new trial be held in circuit court. The new trial shall be conducted by the court without a jury unless the appellant requests a jury trial in the notice of appeal under sub. (1). The required fee for a jury is prescribed in s. 814.61(4). (Emphasis added.)

¶ 23. It is clear that a "new" trial presupposes that there was a prior trial in the municipal court. Had I been on the panel in Village of Menomonee Falls v. Meyer, 229 Wis. 2d 811, 601 N.W.2d 666 (Ct. App. 1999), I would have agreed with the result, therefore, because there was never a prior trial in that case. The case was dismissed before a trial ever took place.

¶ 24. I submit that there was a prior trial in this case, unlike the circumstance in Meyer, and that the City of Pewaukee is therefore entitled to a trial de novo in the circuit court. I would reverse the instant case and remand for a new trial.

¶ 25. Here, witnesses were sworn under oath and testimony was taken. The trial thus not only began, it was in progress. At the end of the City's case, the municipal court granted a motion to dismiss at the close of the plaintiffs evidence. While I realize that this case was therefore "judicially resolved," that does not mean there was no trial. I would bet that there is not a litigator in this state who, following a directed verdict after evidence was taken and one party rested, would walk out of the courtroom believing that he or she was not in a trial.

¶ 26. I profess not to understand the majority's insistence on a "full trial." That is certainly not found in the statute. The majority seems to hang its hat on not the statute, but on Meyer. In that case, the court wrote that Wis. Stat. § 800.14(4) "does not permit a new trial before the circuit court when the case was judicially resolved, but not fully litigated on the merits, before the municipal court." Meyer, 229 Wis. 2d at 818. If the Meyer panel was saying that the statute requires a complete trial in the municipal court before a party may avail itself of a trial de novo in the circuit court, as the majority seems to assert, I think the statement was wrong. The statute says no such thing and the court was putting a spin on the statute that does not exist on the face of the statute and cannot be found in the legislative history. Moreover, the statement is dicta since, in Meyer, there was no trial — so discussion on the need for the prior trial to be "fully litigated" went beyond what was necessary to decide. I would not follow Meyer in this case. I would hold that once witnesses have been sworn and testimony is being taken, a trial is in progress. That trial has full force and effect for collateral estoppel and res judicata purposes in civil cases and is "on the books" as a trial unless there is a voluntary nonsuit.

¶ 27. I have another problem with the majority's logic. If there is no trial until the case is fully litigated, this means that a motion made at the close of the plaintiffs case does not allow for a trial de novo in the circuit court but a motion made at the close of all evidence, based on the same legal grounds and thus decided as a matter of law rather than fact, does allow for a trial de novo. I do not think the legislature intended to grant access to the circuit court for new trial purposes depending on when the motion was made.

¶ 28. As I said, I would reverse and remand with directions for a trial de novo.

       Wisconsin Stat. § 800.14(4) provides:
      Upon the request of either party within 20 days after notice of appeal under sub. (1), or on its own motion, the circuit court shall order that a new trial he held in circuit court. The new trial shall be conducted by the court without a jury unless the appellant requests a jury trial in the notice of appeal under sub. (1). The required fee for a jury is prescribed in s. 814.61(4).
      All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise stated.

       The City notes that under municipal court trial procedures, only the prosecutor is required to present evidence, the defendant may or may not. See Wis. Stat. § 800.08(1) ("The municipality shall first offer evidence in support of the citation or complaint. The defendant may offer evidence after the municipality has rested.").

       The municipal court granted Carter's motion to dismiss, holding that the City failed to meet its burden of proof. Whether or not a party meets its burden of proof is a question of law. Hallin v. Hallin, 228 Wis. 2d 250, 258, 596 N.W.2d 818 (Ct. App. 1999).

       There is no need to remand for any work by the circuit court because the City did not seek a paper review; it sought a de novo trial. Wisconsin Stat. § 800.14(5) provides that if there is no request for a new trial under § 800.14(4), an appeal to the circuit court shall be based upon a review of the transcript of the municipal proceedings. See Village of Menomonee Falls v. Meyer, 229 Wis. 2d 811, 817, 601 N.W.2d 666 (Ct. App. 1999); see also Village of Williams Bay v. Metzl, 124 Wis. 2d 356, 361, 369 N.W.2d 186 (Ct. App. 1985).
      Thus, the City had an opportunity to seek a meaningful review of the municipal court's judgment through an appeal on the record under Wis. Stat. § 800.14(5). See Meyer, 229 Wis. 2d at 817. Because the City forfeited this opportunity, it cannot complain that it has been denied a meaningful review of the municipal court's judgment. Id. at 817-18.


source: Caselaw Access Project

author: DYKMAN, J.

license: Public Domain

text:
    Heather C. Fischer, Wayne C. Fischer and Kathleen J. Fischer, Plaintiffs-Respondents, v. Midwest Security Insurance Company, Defendant-Appellant.
    Court of Appeals

      No. 02-2343.

      Oral argument June 6, 2003.

      Decided November 20, 2003.

    2003 WI App 246
    (Also reported in 673 N.W.2d 297.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Kara M. Burgos of Moen Sheehan Meyer, Ltd., La Crosse. There was oral argument by James Naugler.

    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of James G. Curtis of Hale, Skemp, Hanson, Skemp & Sleik, La Crosse. There was argument by James G. Curtis.

    Before Dykman, Vergeront and Lundsten, JJ.
   DYKMAN, J.

¶ 1. Midwest Security Insurance Company (Midwest) appeals from a declaratory judgment entitling Heather C. Fischer and her parents (the Fischers) to recover under the separate coverage limits of a Midwest policy with respect to uninsured motorist coverage (UM), underinsured motorist coverage (UIM), and medical payments coverage, up to the full extent of their actual damages. Midwest asserts that the insurance policy's limit on liability prohibits duplicate payments for the same elements of loss in a single accident. Midwest claims the trial court erred when it permitted the Fischers to recover under both UM and UIM coverage. We affirm.

A. FACTS

¶ 2. The parties stipulated to the facts of this case. A car accident occurred in which Heather Fischer sustained injuries causing her to incur medical expenses in excess of $100,000. She also suffered personal injuries, pain, suffering and disability. Her total damages from the accident are at least $150,000. The parties have not reached an agreement on damages beyond this amount. The Fischers are legally entitled to recover compensatory damages from both drivers.

¶ 3. At the time of the accident, Heather and her parents were covered by a Midwest Personal Automobile Policy. The coverage included UM bodily injury and UIM bodily injury. Heather was a passenger in a car whose driver was uninsured. The other tortfeasor had liability coverage with a maximum limit of $25,000 per person and $50,000 per accident.

¶ 4. The Fischers submitted a claim to Midwest for payment under both their UM and UIM coverage. Midwest paid the Fischers $125,000 under their UM coverage. Midwest also agreed, "to pay any difference between [the underinsured tortfeasor's] $25,000 liability coverage limit and the actual amount ultimately paid" to the Fischers by the underinsured tortfeasor. The Fischers then sought a declaratory judgment regarding the insurance coverage available under the Midwest policy. The trial court ruled that the insurance policy entitled the Fischers to both UM and UIM coverage. Midwest appeals.

B. STANDARD OF REVIEW

¶ 5. In a declaratory judgment action, the granting or denying of relief is a matter within the discretion of the circuit court. Hull v. State Farm Mut. Auto. Ins. Co., 222 Wis. 2d 627, 635, 586 N.W.2d 863 (1998). We will uphold a trial courts discretionary decision as long as it was not erroneous. Id. at 635-36. An exercise of discretion is erroneous if it misapplies the law. Id. (citations omitted).

¶ 6. This case requires us to construe an insurance policy. When determining insurance coverage, we shall apply the same rules that are applied to contracts generally. Kendziora v. Church Mut. Ins. Co., 2003 WI App 83, ¶ 6, 263 Wis. 2d 274, 661 N.W.2d 456. We enforce an insurance policy as written if it is unambiguous. Folkman v. Quamme, 2003 WI 116, ¶ 13, 264 Wis. 2d 617, 665 N.W.2d 857. Insurance contract language is ambiguous if it is susceptible to more than one reasonable construction. Id. We construe such ambiguities against the insurer. Id. We attempt to determine what a reasonable person in the position of the insured would have understood the words of the policy to mean. Id., ¶ 20.

C. ANALYSIS

¶ 7. This case presents an issue of first impression: may an insured recover compensatory damages under separate UM coverage and UIM coverage in a single accident? Wisconsin has well-developed law regarding UM and UIM coverage. Nevertheless, no authority has addressed the situation where an insured has claims from a single accident for both UM and UIM coverage because of the insurance status of multipletortfeasors. Although this a novel issue, we will follow the principles and methodology set forth by the Wisconsin Supreme Court in Folkman, 2003 WI 116.

¶ 8. The parties dispute a narrow issue: how to interpret the liability limitations in the UM and UIM endorsements. The drivers in the car accident qualify as uninsured and underinsured motorists; the parties stipulated that the Midwest policy covers compensatory damages resulting from the negligence of both drivers.

1. Policy Provisions

¶ 9. To understand the endorsements, we will examine how Midwest has organized the Fischers' policy. The policy begins with a Declarations page and seven separate sections follow. Only three of the sections are relevant to this case: Part A-Liability Coverage, Part B-Medical Payments Coverage, and Part C-Uninsured Motorists Coverage. The UM coverage in Part C has an endorsement. The heading on that document reads: "THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY." In enlarged and bolded font, the phrase "UNINSURED MOTORIST COVERAGE-WISCONSIN" appears below the heading. The endorsement includes a "Limit of Liability" provision, which reads:

A. The limit of liability shown in the Declarations for this coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of:
1. "Insureds";
2. Claims made;
3. Vehicles or premiums shown in the Declarations; or
4. Vehicles involved in the accident.
B. The limit of liability shall be reduced by all sums:
1. Paid because of the "bodily injury" by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A; and
2. Paid or payable because of the "bodily injury" under any of the following or similar laws:
a. Worker's compensation law; or
b. Disability benefits law.
C. No one will be entitled to receive duplicate payments for the same elements of loss under this coverage provided by this policy.
1. Part A or Part B of this policy; or
2. Any Underinsured Motorists Coverage provided by this policy.
D. We will not make a duplicate payment under this coverage for any element of loss for which payment has been made by or on behalf of persons or organizations who may be legally responsible.
E. [Omitted]

¶ 10. A separate document with the same heading has, in enlarged and bolded font below it, the phrase "UNDERINSURED MOTORISTS COVERAGE-WISCONSIN." The pertinent portion of the UIM motorists coverage also has a "Limit of Liability" provision, which reads:

A. The limit of liability shown in the Schedule or in the Declarations for this coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of:
1. "Insureds";
2. Claims made;
3. Vehicles or premiums shown in the Schedule or in the Declarations; or
4. Vehicles involved in the accident.
B. The limit of liability shall be reduced by all sums:
1. Paid because of the "bodily injury" by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A; and
2. Paid or payable because of the "bodily injury" under any of the following or similar law:
a. Worker's compensation law; or
b. Disability benefits law.
C. No one will be entitled to receive duplicate payments for the same elements of loss under this coverage and Part A, Part B, or Part C of this policy.
D. We will not make a duplicate payment under this coverage for any element of loss for which payment has been made by or on behalf of persons or organizations who may be legally responsible.
E. [Omitted]

¶ 11. Although the parties dispute how to interpret the liability limitations, neither party contends that subsec. D or subsec. E in the Limit of Liability provision is at issue in this lawsuit. This leaves Midwest with three theories to limit or eliminate recovery under UM and UIM coverage: (1) the limits of liability identified on the Declarations page; (2) the reduction clause; and (3) the prohibition against duplicate payments. We will discuss these provisions in turn.

2. Declarations Page

¶ 12. The Declarations page shows that the Fischers purchased, among other things, coverage for: (1) UM bodily injury that limits the insurer's liability to $150,000 for each person and $300,000 for each accident; (2) UIM bodily injury with the same liability limits; and (3) medical payments with a liability limit of $1,000. The Declarations page identifies these as separate types of coverage, for which the Fischers paid separate premiums. It also informs the insured that the policy forms and endorsements complete the policy.

¶ 13. The Fischers claim that the Declarations create a reasonable expectation that the limits for UM and UIM coverage are separate limits. They claim that Midwest has agreed to pay $150,000 on each coverage endorsement, if the insured qualifies for such coverage, because the declarations tie the maximum payment to the separate coverage provided through separate endorsements.

¶ 14. The Fischers also contend that the phrase "this coverage" in subsec. A of the liability provision ties the limit of liability to each separate coverage. Specifically, the Limit of Liability provision included in each endorsement only applies to the coverage that the endorsement changes. In other words, the Limit of Liability in the UM endorsement governs UM coverage. The same reasoning applies to the UIM endorsement. Therefore, the Fischers argue that "one accident" limits UM recovery to $150,000 for each person for a single accident. The limit applies likewise to the UIM endorsement.

¶ 15. Midwest asserts that the Declarations express the maximum limit of liability for all damages resulting from one accident. It claims that the maximum recovery of compensatory damages for a single accident is $150,000 per person and $300,000 per accident as expressed on the Declarations page. In other words, the insured may only recover under a single type of coverage for compensatory damages for a single accident. Because the Fischers purchased only one policy, they may only collect, under either UM or UIM coverage, a maximum of $150,000 for each person in a single accident.

¶ 16. We agree with the Fischers' first argument. The Declarations identify, among other things, two separate types of coverage: UM and UIM coverage. The policy defines uninsured and underinsured motorists. These definitions are mutually exclusive. Midwest has offered no circumstance under which an uninsured motorist can also qualify as an underinsured motorist. Therefore, the policy anticipates and covers two different kinds of risks. We conclude subsec. A in each endorsement's Limit on Liability provision limits the insured's recovery in one accident to the maximum amounts identified on the Declarations. This limitation does not preclude recovery under more than one type of coverage; thus, subsec. A does not prevent the Fischers from recovering under both their UM and UIM coverage in a single accident.

¶ 17. To hold otherwise could lead to absurd results. For instance, an insured may recover the maximum amount of medical payments allowed, which is $1,000 under this policy. Following Midwest's reasoning, the insured would be unable to recover under any other liability or bodily injury coverage the insured purchased because he or she would have recovered the maximum limit of a single type of coverage in a single accident. This result would violate a reasonable insured's expectations.

¶ 18. Even if we were to assume that Midwest's interpretation of subsec. A is reasonable, it is not the only reasonable interpretation. When a policy permits two reasonable interpretations, an ambiguity exists. Danbeck v. Am. Family Mut. Ins. Co., 2001 WI 91, ¶ 10, 245 Wis. 2d 186, 629 N.W.2d 150. We construe ambiguities in insurance contracts against the drafters. Therefore, we conclude that subsec. A does not effectively eliminate UIM coverage when the insured recovers the maximum amount allowed under UM coverage.

3. Reduction Clause

¶ 19. Since Midwest has not argued that subsec. B of either endorsement precludes recovery under both UM and UIM coverage in a single accident, we need not address the merits of the Fischers' contention that Midwest's coverage denial constitutes an impermissible reduction under Janssen v. State Farm Mut. Ins. Co., 2002 WI App 72, 251 Wis. 2d 660, 643 N.W.2d 857.

4. Duplicate Payment

¶ 20. Midwest claims that recovery under UIM would be a duplicate payment because the Fischers have already recovered the maximum limit of the UM coverage. To recover under both UM and UIM would be receiving payment twice, or a "duplicate payment" and subsec. C prohibits duplicate payments. Midwest also asserts that the Fischers are seeking duplicate payment for the same elements of loss. It claims that just because some part of the loss remains underpaid does not mean it is still not the same element of loss. Underpayment, according to Midwest, does not justify a duplicate payment under subsec. C.

¶ 21. The Fischers contend that they seek payment for uncompensated damages. The parties stipulated that the Fischers' damages exceeded the limit of the UM coverage. Thus, the Fischers did not receive payments for some of their losses. The parties agree that the policy does not define "duplicate payment" or "same elements of loss." The Fischers contend that the plain meaning of "duplicate payment" is double or two-fold payment. Because the Fischers only seek recovery of uncompensated damages, they claim such payment could not be a duplicate payment.

¶ 22. Because the parties propose two contrary interpretations of a policy term, we must ascertain whether an ambiguity exists. Midwest measures "elements of loss" categorically; the Fischers define it by dollar amount. Even under Midwest's interpretation, however, no duplicate payment exists. UM and UIM describe two different types of loss caused by two different types of risks. Thus, Midwest's argument that the Fischers were underpaid does not advance its theory that UM and UIM have the same elements of loss.

¶ 23. We assume that Midwest's interpretation of "duplicate payment" is also reasonable. If Midwest's interpretation is reasonable, then subsec. C is ambiguous. We construe ambiguous terms against the drafter, Midwest. Likewise, if Midwest's interpretation is unreasonable, then we enforce the reasonable interpretation, proffered by the Fischers. Either way, we conclude that subsec. C does not render payments under separate UM and UIM coverage duplicate payments for the same elements of loss.

¶ 24. The policy language in subsec. D supports our construction of subsec. C. Subsection D also uses the phrase "duplicate payment." We construe insurance policies as a whole and avoid rendering any provision meaningless. See Gonzalez v. City of Franklin, 137 Wis. 2d 109, 123, 403 N.W.2d 747 (1987). A plain reading of subsec. D leads one to expect that a "duplicate payment" would be one where both a tortfeasor and an insurer compensate the insured for the same element of loss. Subsection D guards against profiting beyond the damages actually incurred. At oral argument, counsel for Midwest could not explain why we should construe "duplicate payment" differently in subsec. C than in subsec. D.

¶ 25. Midwest argues that any construction other than its own cannot be within the reasonable expectations of the insured. Specifically, a reasonable policyholder would not expect a policy, providing both UM and UIM coverage, to allow recovery under both in the unusual circumstances where an accident involved both an uninsured and underinsured motorist. Midwest relies upon analogous case law from other jurisdictions to support its position. Because Wisconsin law adequately guides our construction of the parties' policy, we refrain from adopting the reasoning of other jurisdictions. Wisconsin derives the reasonable expectations of a person in the position of the insured from the ordinary meanings of the contract language. We conclude that the ordinary meaning of subsec. C does not prohibit compensation under UM and UIM coverage.

¶ 26. Finally, Midwest urges us to follow the reasoning in Schaefer, where the limitation of liability provision unambiguously prohibited double recovery. Schaefer v. Gen. Cas. Co., 175 Wis. 2d 80, 87, 498 N.W.2d 855 (Ct. App. 1993). But the insured in Schaefer wished to stack multiple UM policies. Id. at 82-84. The Fischers do not seek to stack similar policies; rather, they seek compensation under both UM and UIM coverage. We find Midwest's argument that recovery under UM and UIM is a form of stacking unpersuasive.

D. CONCLUSION

¶ 27. We will not address the Fischers' arguments relating to Wis. Stat. § 632.32 (2001-02) because our construction of the insurance policy results in our affirming the trial court. We conclude only that the language of the Fischers' policy permits the Fischers to recover under the separate limits of Midwest's UM and UIM coverage up to the full extent of their damages or both policy limits.

By the Court. — Judgment affirmed.


author: HIGGINBOTHAM, J. DYKMAN, J.

text:
    Hal Hempel, Plaintiff-Appellant, v. City of Baraboo and City of Baraboo Police Department, Defendants-Respondents.
    Court of Appeals

      No. 03-0500.

      Submitted on briefs September 8, 2003.

      Decided November 20, 2003.

    2003 WI App 254
    (Also reported in 674 N.W.2d 38.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Aaron N. Halstead and Katy Meter Lounsbury of Shneidman, Hawks & Ehlke, S.C., Madison.
    On behalf of the defendants-respondents, the cause was submitted on the brief of James C. Bohl, city attorney of Baraboo.
    Before Dykman, Vergeront and Higginbotham, JJ.

       Petition to review granted 2-24-04.

   HIGGINBOTHAM, J.

¶ 1. Hal Hempel appeals from a circuit court order granting summary judgment in favor of the City of Baraboo and the City of Baraboo Police Department (collectively, the City) on his challenge to their denial of his open records request. Hempel, a City of Baraboo police officer, argues that the circuit court erred when it found that the public's presumptive right to disclosure of investigatory records related to an internal complaint filed against him was outweighed by the public's interest in non-disclosure. He argues that the circuit court failed to conduct a proper balancing analysis and that under the facts of this case the privacy interest of the alleged victim and the witnesses does not outweigh the public's interest in disclosure. We disagree and affirm the summary judgment order of the circuit court.

FACTS

¶ 2. Hempel has been a City of Baraboo police officer for twenty-two years. In late January 2000, Captain Dennis Kluge of the City of Baraboo Police Department informed Hempel that a fellow officer, Kaye Howver, had filed a complaint against Hempel, accusing him of sexual harassment. On February 10, 2000, Hempel received a copy of the Howver complaint and a memo inviting him to attend an interview to respond to Howver's complaint. On February 18, 2000, Hempel provided a recorded response to Kluge's questions regarding the complaint.

¶ 3. On August 11, 2000, Chief of Police Thomas Lobe gave Hempel a memorandum detailing the disposition of the complaint. The memo was "documentary only" and not disciplinary in nature and indicated that the memo would be retained in Hempel's personnel file for a period of three years from July 8, 2000. The memo further indicated that if another complaint of a similar nature was received, this complaint could be considered at that time.

¶ 4. On January 24, 2001, Hempel, via his attorney, served an open records request upon the City, pursuant to Wis. Stat. § 19.35 and Wis. Stat. § 103.13(2), which entitles an employee to inspect specified personnel documents including documents relating to disciplinary action against the employee. Hempel requested copies of written materials pertaining to Howver's complaint against him. On January 31, 2001, Chief Lobe responded to Hempel's request in writing stating "the only reference to the [_] complaint in Officer Hempel's personnel file is the letter to officer Hempel from the [Chief] dated August 11, 2000 . . . ." In that letter, no disciplinary action was taken under § 103.13(2). The Chief denied Hempel's request under § 103.13(2) to inspect any additional documents since there were no additional documents in Hempel's personnel file. The Chief stated he would respond to Hempel's public records request by a separate letter.

¶ 5. On January 31, 2001, Lobe retired and Kluge was appointed police chief. Chief Kluge provided a written response to Hempel's open records request under Wis. Stat. ch. 19 stating that, after applying the balancing test, he was releasing certain records in redacted form. The documents were sent to Hempel's attorney. The documents, which were eventually released in redacted form to the public by a letter from Chief Kluge on March 13, 2001, are:

1. Officer's report dated January 24, 2000.
2. Sauk County Sheriffs Office complaint dated February 10, 2000.
3. Letter dated August 11, 2000, to a Baraboo police officer signed by Chief of Police Thomas Lobe.
4. Letter to James C. Bohl, City Attorney, dated August 7, 2000, from Attorney Aaron N. Hal-stead.
5. Letter to James C. Bohl, dated June 16, 2000, from Attorney Halstead.

¶ 6. Chief Kluge denied Hempel's request for documents created from the department's internal investigation of Officer Howver's complaint and reiterated the nonexistence of any additional documents in Hempel's personnel file.

¶ 7. Chief Kluge provided the following reasons for denying Hempel's request for the investigation documents:

1. The City harassment policy provides that when a complaint is received, such as the one made by Officer [_], a "confidential investigation" of the alleged activity will be undertaken by the City. Although it could be argued that the court decisions interpreting Chapter 19 can over-ride the City's confidentiality policy, we find that this is not an appropriate case to do that.
2. A further reason for non-public disclosure of the documents you have requested is that disclosure of such documents would interfere with the ability of a law enforcement agency to conduct thorough, confidential, internal investigations. Moreover, the Police Department's ability to gather statements from members of the Department or other departments would be seriously hampered by public disclosure of such investigations. Furthermore, disclosure would discourage victims and witnesses from providing information to the Department regarding personnel investigations.
3. Your request is further denied on the basis that disclosure of the documents you have requested would interfere with and hamper the City of Baraboo's ability to ensure employees an opportunity for satisfying careers and fair treatment based upon the value of their service and would impinge upon the City's right and opportunity to have an [sic] retain competent law enforcement personnel.
4. A further reason for nondisclosure of the documents requested is to protect the privacy rights of individuals who cooperated in the investigation, as well as Officer Hempel and Officer [_]. Disclosure of these records might subject witnesses, employees, and their families to increased risk of harassment or other jeopardy.
5. Nondisclosure of the records you have requested is further required in order to avoid a loss of morale. The City believes that disclosure would cause police officers to choose other employment because of the possible disclosure of personnel investigations. Thus, disclosure could inhibit the City's ability to hire and retain competent personnel.
6. It is possible that the documents requested may contain information that may be mistaken, unsubstantiated, untrue, or irrelevant, and there is a strong public policy in preventing this information from becoming public thereby causing undo [sic] personal and/or economic harm to the individuals involved. Accordingly, disclosure of such information could damage the reputation of such individual and would constitute an unwarranted invasion of personal privacy of such individual.
In conclusion, when the public interest in protecting the foregoing policies is balanced against the public interest in providing public access to internal personnel investigations, the public interest to be served by the release of such documents does not out-weigh the countervailing interests that would be impacted by their release. Therefore, in my opinion, there is a strong public policy interest in non-disclosure. This balancing test is particularly relevant under the current facts where the City stated in its letter to Officer Hempel that the only reference to the [_] complaint in Officer Hempel's personnel file was the Chiefs letter of August 11, 2000, and it was expressly stated in that letter that it was "intended to be documentary only and is not disciplinary." Thus, the internal investigation reports warrant a higher degree of protection from non-disclosure than reports in a matter involving discipline.

¶ 8. Hempel submitted another open records request on March 30, 2001 for documents and notes relating to a telephone interview between Kluge and Kelly Bluedorn, a witness in the Howver complaint investigation, and interviews conducted with other Baraboo officers. Kluge responded by letter on April 6, 2001 denying Hempel's open records request for the same reasons set forth in his March 13, 2001 letter to Attorney Halstead.

¶ 9. On June 11, 2001, Hempel filed a lawsuit against the City of Baraboo, the City of Baraboo Police Department, Sauk County and the Sauk County Sheriffs Department, alleging that their failure to provide him with the requested documents is a violation of Wisconsin's Open Records Law and demanding mandamus relief and attorney's fees and costs. Both parties moved for summary judgment. The circuit court granted summary judgment to the City on November 13, 2002. Hempel appeals.

DISCUSSION

¶ 10. Consideration of the proper application of the open records law involving the interpretation of statutes as applied to undisputed facts presents a question of law, which we review de novo. See Mayfair Chrysler-Plymouth, Inc. v. Baldarotta, 162 Wis. 2d 142, 164-65, 469 N.W.2d 638 (1991). The declared public policy of this state favors liberal access to public records "consistent with the conduct of governmental business."

[I]t is declared to be the public policy of this 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. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed 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.

Wis. Stat. § 19.31. Wisconsin courts have long recognized the open records law "reflects the common law principles favoring access to public records." Wisconsin Newspress, Inc. v. Sheboygan Falls Sch. Dist., 199 Wis. 2d 768, 775, 546 N.W.2d 143 (1996) (citation omitted). ¶ 11. The Wisconsin Supreme Court, in construing Wis. Stat. § 19.31, has declared that "[T]he general presumption ... is that public records shall be open to the public unless there is a clear statutory exception, unless there exists a limitation under the common law, or unless there is an overriding public interest in keeping the public record confidential." Wisconsin Newspress, Inc., 199 Wis. 2d at 776 (citation omitted). The third factor is implicated in this case.

¶ 12. The plain language of Wis. Stat. § 19.35(1) directs the records custodian to consider the public policies expressed in Wis. Stat. § 19.85, among which is the expression of a general public policy against opening disciplinary or personnel proceedings, when making a decision whether or not to release a record. Wisconsin Newspress, Inc., 199 Wis. 2d at 779. See also Village of Butler v. Cohen, 163 Wis. 2d 819, 829-30, 472 N.W.2d 579 (Ct. App. 1991). These sections do not state a "clear statutory exception" forbidding the release of all public employee disciplinary records. Rather, they simply require the records custodian to pay proper heed to the expressed policies in allowing or denying public access to a personnel record. Wisconsin Newspress, Inc., 199 Wis. 2d at 779.

(1) Right to inspection, (a) Except as otherwise provided by law, any requester has a right to inspect any record. Substantive common law principles construing the right to inspect, copy or receive copies of records shall remain in effect. The exemptions to the requirement of a governmental body to meet in open session under s. 19.85 are indicative of public policy, hut may be used as grounds for denying public access to a record only if the authority or legal custodian under s. 19.33 makes a specific demonstration that there is a need to restrict public access at the time that the request to inspect or copy the record is made.

¶ 13. However, there is no blanket exception under the open records law for public employee disciplinary or personnel records. Id. at 781-82. Whether personnel records are subject to disclosure must be examined on a case-by-case basis, which necessarily requires an in camera inspection. State ex rel. Journal/Sentinel, Inc. v. Arreola, 207 Wis. 2d 496, 510, 513, 558 N.W.2d 670 (Ct. App. 1996).

¶ 14. We follow a two-step procedure in reviewing the instant case:

First, we must decide if the trial court correctly assessed whether the custodian's denial of access was made with the requisite specificity. Second, we determine whether the stated reasons are sufficient to permit withholding, itself a two-step analysis. Here, our inquiry is: (1) did the trial court make a factual determination supported by the record of whether the documents implicate the public interests in secrecy asserted by the custodians and, if so, (2) do the countervailing interests outweigh the public interest in release.

Wisconsin Newspress, Inc., 199 Wis. 2d at 784. We must determine whether the public policies favoring disclosure are outweighed by the public interest in nondisclosure. See id. at'781. We weigh each of the countervailing interests separately in applying the balancing test. State ex rel. Journal/Sentinel, Inc., 207 Wis. 2d at 512.

¶ 15. Hempel does not challenge the specificity of the records custodian's response. We therefore turn to the second step of the analysis which requires us to examine whether the interests asserted by the City in denying access to the requested records are outweighed by the public's interest in disclosure. See Wisconsin Newspress, Inc., 199 Wis. 2d at 785.

¶ 16. Hempel first argues the circuit court failed to conduct a proper balancing test in this case when it determined the appropriateness of the City's refusal to disclose the investigation materials. We disagree. The circuit court conducted an in camera inspection of the City's investigative file and concluded that "in this case . . . the public's presumptive right to inspect public records is outweighed by the public interest in nondisclosure of an internal personnel investigation made as a result of a harassment complaint filed by a coworker against a rank and file police officer." (Emphasis added.) We conclude the circuit court applied the balancing test to the facts as set forth in the materials contained in the City's investigative file.

¶ 17. Hempel further argues the circuit court accepted "carte blanche" the records custodian's reasons for nondisclosure without reference to specific facts in support thereof. We agree that some of the reasons provided by the records custodian are not supported by facts. However, we also agree that some of the reasons are well supported by facts and therefore support the records custodian's denial of Hempel's open records request.

¶ 18. The City states that disclosing the investigation reports would hamper the Department's ability to hire and retain competent law enforcement personnel and to provide an opportunity for satisfying careers in law enforcement; would lead to a loss of morale within the Department and result in police officers choosing other employment; and, because the documents may contain inaccurate or irrelevant information, individuals involved in the investigation may face economic and/or personal harm by damaging the individual's reputation and invading their personal privacy. We are not persuaded these reasons justify withholding the requested information. First, the City fails to support these arguments with any facts and fails to demonstrate how this eventually would occur. Notwithstanding the circuit court's opinion that it is not necessary to present specific facts to support the City's concerns, a conclusory opinion by the records custodian that these things would eventually occur is inadequate. We conclude that the likelihood of such results is "too remote to overcome the policy favoring disclosure of public records." State ex rel. Journal/Sentinel, Inc., 207 Wis. 2d at 517. Police officers must necessarily expect close public scrutiny. Furthermore, it is difficult to imagine a circumstance where an individual would be discouraged from becoming a law enforcement officer simply because he or she faces the possibility of having investigation records disclosed.

¶ 19. We do agree, however, that there are significant privacy issues at stake here. Wisconsin statutes and case law have consistently recognized the legitimacy of the interests of citizens to privacy. Woznicki v. Erickson, 202 Wis. 2d 178, 185, 549 N.W.2d 699 (1996). See also Linzmeyer v. Forcey, 2002 WI 84, ¶ 31, 254 Wis. 2d 306, 646 N.W.2d 811. The City justifies withholding records from the investigation file because this case involves an internal complaint of sexual harassment resulting in a confidential investigation; disclosure would interfere with and impede law enforcement's ability to conduct thorough and confidential internal investigations; disclosure would discourage victims and witnesses from providing information regarding personnel investigations; and it is necessary to shield victims and witnesses who cooperate with personnel investigations and their families from increased risk of harassment. We agree and conclude the court record contains sufficient evidence to support these reasons for nondisclosure.

¶ 20. We now consider whether the public policy of openness is outweighed by the public policy of nondisclosure. The City has, as have virtually all units of government, instituted a sexual harassment policy in order to comply with 29 C.F.R. § 1604.11(f), the federal regulation pertaining to discrimination based on sex issued by the federal Equal Employment Opportunity Commission (EEOC). The circuit court found "The City of Baraboo Police Department was concerned about protecting the privacy and reputational interests of its employees when it adopted a policy that provided upon receiving a complaint of harassment, the department would conduct a 'confidential' investigation of the alleged harassing activity." The circuit court further found

[t]his confidentiality protection is necessary to encourage not only the person filing the complaint, but also those assisting in the investigation, from being harassed by other workers, members of the public, and to enable the department to gather statements from members of the department without interference from within our outside the department.

We conclude these reasons justify nondisclosure of the harassment complaint investigation file.

¶ 21. While we agree with the policy and purpose underlying the open records law, which is to provide the broadest possible access of the public to public records, the right to public access is not absolute. Woznicki, 202 Wis. 2d at 193-194. The public's right to access public records must give way to the important public policy of encouraging victims and witnesses of employment discrimination to cooperate in internal investigations of such conduct. The investigation of Officer Howver's complaint was undertaken pursuant to the City's anti-harassment policy, which promised a confidential investigation. Chief Lobe stated in his summary judgment affidavit that keeping such an internal investigation confidential "improves the likelihood of obtaining complete statements from witnesses within the department who are interviewed as part of the investigation." We conducted an in camera inspection of the records and agree with this conclusion. The records indicate some witnesses were afraid of retaliation should their statements be disclosed. One witness chose not to provide any information, presumably because of concerns of retaliation. These are but two excellent examples supporting the City's concerns about disclosing its investigation file.

¶ 22. The City's case for nondisclosure is strengthened by the release of documents from the investigation file with the names of witnesses and of the alleged victim redacted. The public's right to be informed about the workings of their government, and in this case, their police department, is well protected by the disclosure of the redacted documents. Linzmeyer, 254 Wis. 2d 306, ¶ 41. At the same time, the privacy interests of individuals are also protected. Certainly should anyone, including the media, choose to question employees of the Baraboo Police Department regarding this investigation, they are free to do so. Likewise, any individual from the Baraboo Police Department is free to discuss the investigation with anyone else. The open records law does not erect a barrier to public discussion of these type of matters. By redacting the names from the disclosed documents, the City acted beyond the balancing requirements of the open records law.

¶ 23. We conclude the public's interest in nondisclosure outweighs the public's interest in access to records containing information from internal police department complaints of sexual and other forms of harassment proscribed by law.

By the Court. — Order affirmed.

DYKMAN, J.

¶ 24. (dissenting). Discrimination is an evil that has been vigorously attacked by the Wisconsin Legislature. To combat discrimination in employment, the legislature enacted Wis. Stat. § 111.31(1) (2001-02), which provides, in pertinent part:

Declaration of Policy. (1) The legislature finds that the practice of unfair discrimination in employment against properly qualified individuals by reason of their age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, membership in the national guard, state defense force or any other reserve component of the military forces of the United States or this state or use or nonuse of lawful products off the employer's premises during nonworking hours substantially and adversely affects the general welfare of the state. Employers, labor organizations, employment agencies and licensing agencies that deny employment opportunities and discriminate in employment against properly qualified individuals solely because of their age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, membership in the national guard, state defense force or any other reserve component of the military forces of the United States or this state or use or nonuse of lawful products off the employer's premises during nonworking hours deprive those individuals of the earnings that are necessary to maintain a just and decent standard of living.

(Emphasis added.)

¶ 25. To emphasize this policy, the legislature enacted Wis. Stat. § 111.31(2), which provides in pertinent part:

It is the intent of the legislature to protect by law the rights of all individuals to obtain gainful employment and to enjoy privileges free from employment discrimination because of age, race, creed, color, disability, marital status, sex ....

(Emphasis added.)

¶ 26. Unfortunately, despite this strong policy the majority has concluded that a police department may hide from the public, evidence of sex discrimination within the City of Baraboo Police Department. I do not agree that this extension of open records exceptions into an area particularly suited to openness is the correct interpretation of the law or policy encompassed by Wisconsin's open records legislation.

¶ 27. First, I am impressed by the legislature's command and the judiciary's response to that command. Wisconsin Stat. § 19.31 provides for openness, not secrecy:

Declaration of policy. In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this 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. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed 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.

¶ 28. This is not an exceptional case. In fact, it is a mine-run case, in which a police department does not want to reveal evidence of the sex discrimination going on within the department, or what steps the department has taken to insure that the policy of Wisconsin's anti-discrimination statute is being followed. That is understandable. Government does not like to be embarrassed by its mistakes, and secrecy can hide those mistakes from public scrutiny. The open records law, however, is designed to make this sort of information public.

¶ 29. Wisconsin's courts have recognized the legislative policy of openness. In Hathaway v. Green Bay School Dist., 116 Wis. 2d 388, 397, 342 N.W.2d 682 (1984), the court examined previous open records cases and concluded:

Section 19.21, Stats., in light of prior cases, must be broadly construed to favor disclosure. Exceptions should be recognized for what they are, instances in derogation of the general legislative intent, and should, therefore, be narrowly construed; and unless the exception is explicit and unequivocal, it will not be held to be an exception.

We are to give much weight to the beneficial public interest in open records. State ex rel. Bilder v. Delavan Tp., 112 Wis. 2d 539, 553, 334 N.W.2d 252 (1983). In Newspapers Inc. v. Breier, 89 Wis. 2d 417, 433, 279 N.W.2d 179 (1979), the court noted: "This court has consistently held that, in the process of balancing policy considerations favoring secrecy for whatever reason against those favoring the public's right of inspection, the public interest in open public records weighs heavily in every case."

¶ 30. So, with the legislature and the courts emphatically favoring openness in government, why has the majority voted for secrecy? First, the majority holds that "privacy issues" support keeping the information secret. But the supreme court has addressed that: "Although it must be conceded that the public interest in the protection of the reputations of individuals is not an insubstantial concern, that interest must be measured against the strong public interest which favors the right of inspection of public records." Newspapers Inc., 89 Wis. 2d at 438. The majority then focuses on a supposed effect of making discrimination complaints public: the victims might not come forward with information. But, as the majority notes, even when promised secrecy, an informant refused to give up information. Reluctant witnesses are an everyday occurrence in court proceedings. Wisconsin's response to that problem is our "John Doe" procedure, under which persons reluctant to divulge information about crimes are forced to tell what they know while under oath. Subpoenas are another method by which information can be obtained from those not inclined to divulge information at hearings or trials.

¶ 31. The important concept that the majority misses is this: If public employers are permitted to hide evidence of discrimination, we will never be able to overcome that discrimination. While a concern for the privacy of individuals is laudatory, the legislative purpose of ending discrimination will never be achieved if public employers are allowed to sweep evidence of discrimination under the rug and then successfully resist attempts to focus public opinion on the very evil the legislature has made unlawful. In my view, the short-term embarrassment and unsubstantiated fear of reprisal weighs like a feather against the long-term permission the majority has given government to hide evidence of discrimination.

¶ 32. Next, the majority holds that the open records request could be denied because the police department released the information, with only the names of witnesses and the victim redacted. I have made an exhibit of one of the redacted documents. To me, it reveals little more than nothing. The very information necessary to an inquiry into discrimination in the Baraboo Police Department has been censored. I am not convinced by a document such as this.

¶ 33. Nor am I convinced by the majority's citation to Linzmeyer v. Forcey, 2002 WI 84, ¶¶ 14-15, 254 Wis. 2d 306, 646 N.W.2d 811. The cited portion of the case says nothing about redaction, and nothing in the case supports the conclusion that the public's right to know is well protected by disclosing redacted documents. What Linzmeyer really teaches is that the privacy interest of a public school teacher accused of inappropriate behavior with a number of his female students is an insufficient reason to keep secret the report of an investigation into that behavior, even when, as in the case of the Baraboo Police Department, no arrest, prosecution or administrative disciplinary action ensued. Linzmeyer is the authority for requiring the Baraboo Police Department to give up the withheld information.

¶ 34. The majority notes that the media can question members of the Baraboo Police Department so as to publicize the issue of discrimination. Were this a reason to deny open records requests, all open records requests could be denied. After all, the media can question anyone about anything. The problem the majority misses is that the open records statutes do not require anyone to talk. An explanation that records can be kept secret because employees will be afraid to talk does not square with an explanation that records can be kept secret because the media can ask questions of those very employees.

¶ 35. There was no need for the precedent set by the majority's opinion here. The Baraboo Police Department will continue to operate whether or not it can keep internal evidence of discrimination secret. Police Department employees will survive and continue their employment whatever we do. But henceforth police departments as well as other government agencies can use the possible privacy concerns of their employees to shield themselves from discrimination investigations. I cannot agree with the balance the majority has struck. I therefore respectfully dissent.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Sauk County and the Sauk County Sheriffs Department were dismissed from this action by stipulation.

       Wisconsin Stat. § 19.35(1) provides:

       We agree that a government entity cannot escape the public policy imperatives of the operi records law simply by adopting a blanket exception to the disclosure of public records under the guise of the label of confidentiality. The records custodian must conduct the proper balancing act as required by Wisconsin Newspress, Inc. v. Sheboygan Falls School District, 199 Wis. 2d 768, 777-78, 546 N.W.2d 143 (1996).

       EEOC has issued policy guidelines on implementing its sexual harassment regulations. It states:
      An effective preventive program should include an explicit policy against sexual harassment that is clearly and regularly communicated to employees and effectively implemented.... The employer should also have a procedure for resolving sexual harassment complaints. The procedure should he designed to "encourage victims of harassment to come forward" and should not require a victim to complain first to the offending supervisor ... .It should

        ensure confidentiality as much as possible and provide effective remedies, including protection of victims and witnesses against retaliation. (Emphasis added.)
      EEOC, Policy Guidance on Current Issues of Sexual Harassment, No. N-915-050, GUIDANCE E.l. (March 19, 1990), available at http://www.eeoc.gov/docs/currentissues.html.

       Hempel argues his interests are the only interests implicated here, a claim easily discarded by a brief examination of the redacted documents released by the City. Certainly the alleged victim and witnesses who face the possibility of retaliation have interests affected by the decision to release the documents.

       Hempel offers a third objection to the circuit court's decision, arguing that the circuit court failed to examine whether "exceptional circumstances" supported disclosure of the documents. Hempel asserts this conclusion without legal analysis. We may decline to review an issue inadequately briefed. State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992).

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

        See Wis. Stat. § 968.26.


text:
    In the Matter of Medical Incapacity Proceedings Against John F. Kerscher: Office of Lawyer Regulation, Complainant, v. John F. Kerscher, Respondent.
    Supreme Court

      No. 01-0217-D.

    Decided February 24, 2004.

    2004 WI 11
    (Also reported in 674 N.W.2d 871.)
   The Court entered the following AMENDED order on this date:

On March 9,2001, this court granted Attorney John E Kerscher's request pursuant to SCR 22.34(11) that his license to practice law in this state be suspended indefinitely due to his medical incapacity — alcoholism. He has now filed a petition for reinstatement of his license and asserts that his medical incapacity has been removed. After a public hearing, the referee appointed in this matter, Attorney Lance S. Grady, concluded that based on the unchallenged and undisputed evidence, Kerscher's medical incapacity has been removed and his alcoholism is now under control and that he has maintained absolute sobriety for more than two years. In a supplemental report, Referee Grady "strongly" recommends that Kerscher's petition for reinstatement be granted upon certain conditions. The OLR also supports reinstatement as does the Board of Bar Examiners upon Kerscher's compliance with current CLE requirements.

Upon the referee's findings, report and recommendation which we now accept, and based on our review of the entire record,

IT IS ORDERED that John E Kerscher's license to practice law in this state be reinstated effective the date of this order, upon the conditions that for the next five years:

A. John F. Kerscher must provide full medical and information release forms to the OLR as requested;
B. John F. Kerscher must maintain absolute sobriety, with monitoring, at the full discretion of the OLR to include random breathalyzer and/urine checks through his probation agent, healthcare providers, or the OLR upon the OLR's request;
C. John F. Kerscher must submit quarterly psychiatric reports to the OLR and demonstrate compliance with any medication regimen as prescribed by his healthcare provider; and
D. John F. Kerscher must regularly meet with a monitor selected by the OLR whose responsibility will be to report to the OLR on Kerscher's continuing sobriety and his management of his law practice.

IT IS FURTHER ORDERED that John F. Kerscher must comply with the current CLE requirements as outlined by the Board of Bar Examiners' memorandum in support of his petition for reinstatement.

IT IS FURTHER ORDERED that within six months of the date of this order John F. Kerscher must pay to the OLR the costs of these reinstatement proceedings in the amount of $6930.94 as detailed in the OLR statement of costs. If such costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of John F. Kerscher to practice law in Wisconsin shall be suspended until further order of this court.

Cornelia G. Clark Clerk of Supreme Court


author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Mark E. Converse, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Mark E. Converse, Respondent.
    Supreme Court

      No. 03-1518-D.

    Decided February 25, 2004.

    2004 WI 10
    (Also reported in 675 N.W.2d 238.)
   PER CURIAM.

¶ 1. This case is before us pursuant to a stipulation between the parties, Attorney Mark E. Converse, and the Office of Lawyer Regulation (OLR). The stipulation recited that Attorney Converse filed an answer to the OLR's complaint in which he admitted every allegation contained therein. The stipulation further provided that Attorney Converse was willing to stipulate to entry of an order by the referee making findings of fact and conclusions of law for all of the disciplinary violations alleged in the complaint. Only the appropriate level of discipline for the violations remained in dispute. The referee, John E. Shannon, Jr., issued a report based upon the stipulation.

¶ 2. We accept the stipulation and the referee's report and determine that the seriousness of Attorney Converse's conduct warrants a 90-day suspension of his license to practice law in Wisconsin. We also deem it appropriate for Attorney Converse to pay the costs of this proceeding.

¶ 3. Attorney Converse was admitted to practice law in Wisconsin in 1973 and practices in Green Bay. In 1985 he consented to the imposition of a public reprimand for neglect of a client matter and representation in a conflict of interest situation. In 1992 he was again publicly reprimanded for failing to diligently pursue a client's criminal appeal and failing to turn over the client's file to new counsel. He was also ordered to perform 200 hours of pro bono legal work. In re Disciplinary Proceedings Against Converse, 168 Wis. 2d 8, 482 N.W.2d 911 (1992). In 1994 Attorney Converse's license was suspended for 60 days for failing to timely file federal and state income tax returns. In re Disciplinary Proceedings Against Converse, 185 Wis. 2d 373, 517 N.W.2d 191 (1994).

¶ 4. In June 2003 the OLR filed a complaint alleging misconduct with respect to Attorney-Converse's handling of two client matters. The first matter involved Attorney Converse's handling of a criminal appeal for a client who was convicted of child sexual assault and sentenced to six years in prison. The client filed his own notice of appeal and then hired Attorney Converse to file an appellate brief. The client paid Attorney Converse a $2000 retainer. It was agreed that Attorney Converse's fees would be $100 per hour plus costs. Attorney Converse told the client he had grounds for pursuing an appeal based on a claim of ineffective assistance of trial counsel.

¶ 5. The client's appellate brief was due January 12, 1998. The court of appeals issued a delinquency notice on January 28, 1998. On February 2, 1998, Attorney Converse requested and received an extension until March 10, 1998. On March 6 he requested an additional ten-day extension which was also granted. On March 20 he requested and received a third extension until March 30. Attorney Converse never filed a brief.

¶ 6. In mid-March 1998 the client asked Attorney Converse to also represent him in defending a ch. 980, Stats., petition seeking to have the client classified as a sexually violent person. The state filed its ch. 980, Stats., petition after the client had been granted parole but prior to his release from prison. The client continues to be held at the Wisconsin Resource Center in Winnebago, Wisconsin, under the ch. 980 case.

¶ 7. On April 23, 1998, the court of appeals dismissed the client's criminal appeal for failure to file a brief. Attorney Converse continued to represent the client in the ch. 980 case until October 1999. The client said he telephoned Attorney Converse every 60 days to ask about the status of the brief, and Attorney Converse caused the client to believe he was still working on the brief. Attorney Converse sent the client two letters representing that he was still working on the appellate .brief after the appeal had already been dismissed. Attorney Converse abandoned the appeal without the client's knowledge or consent. He never filed a motion to withdraw from the case, nor did he file a no merit report.

¶ 8. The client stopped telephoning Attorney Converse in October 1999 when he fired Attorney Converse from the ch. 980 case. The client says he never fired Attorney Converse from the criminal appeal. The client subsequently filed a petition for review in the criminal appeal alleging ineffective assistance of appellate counsel. This court remanded the matter to the court of appeals with instructions that it reinstate the original appeal and allow the client to obtain new appellate counsel.

¶ 9. The client filed a grievance against Attorney Converse. Attorney Converse initially failed to respond to letters from the OLR staff. He later provided inconsistent accounts to the OLR regarding the scope of his representation of the client.

¶ 10. The OLR's complaint also alleged that Attorney Converse engaged in misconduct with respect to his representation of a second client in two civil matters. One matter involved the client's claim that a person had converted funds belonging to him, and the second matter was a Worker's Compensation case. Attorney Converse told the second client his customary fee would be in the range of 20 to 25 percent of any recovery. While Attorney Converse's fee in the Worker's Compensation matter was determined by statute, Attorney Converse did not reduce to writing a contingent fee agreement for the civil lawsuit.

¶ 11. The second client subsequently filed a grievance alleging dissatisfaction with Attorney Converse's representation in the conversion matter. Attorney Converse again failed to respond to the OLR's letters requesting a reply to the second client's grievance.

¶ 12. As noted above, Attorney Converse filed an answer admitting all of the allegations of the OLR's complaint. After the OLR and Attorney Converse entered into the stipulation discussed above, a hearing was held for the sole purpose of arguing the appropriate discipline for the violations. Attorney Converse argued that in lieu of a suspension consideration should be given to allowing him to perform community service. The OLR argued that a 90-day suspension was appropriate since this was the fourth instance in which Attorney Converse was being considered for discipline and lesser amounts of discipline imposed in the past did not appear to have deterred him from continuing to engage in professional misconduct.

¶ 13. In his report the referee found that the facts set forth in the OLR's complaint had been established by clear, satisfactory, and convincing evidence. The referee went on to conclude, as a matter of law, that Attorney Converse committed the following violations of the attorney disciplinary rules:

1. By failing to file an appellate brief for the first client in a criminal case pending before the Wisconsin Court of Appeals, after having been hired to do so, and allowing the time for filing a brief to expire, resulting in dismissal of the appeal, Attorney Converse violated SCR 20:1.3.
2. By making repeated assurances to the first client that he was working on an appellate brief from approximately June 1998 until October 1999 and by providing false explanations as to why the brief was not finished when, in fact, he was not working on the brief, Attorney Converse violated SCR 20:8.4(c).
3-, By failing to respond to letters from the OLR staff requesting information concerning an investigation into the grievance filed by the first client, Attorney Converse violated SCR 21.15(4), SCR 22.03(2), and SCR 22.03(6).
4. By failing to reduce a contingent fee agreement to writing in a matter in which Attorney Converse told the second client that he would charge between 20 to 25 percent of any recovery, Attorney Converse violated SCR 20:1.5(c).
5. By failing to respond to letters from the OLR staff, as well as failing to respond to the personal service of the OLR's request that he respond, all requesting information concerning an investigation into the grievance filed by the second client, Attorney Converse violated SCR 21.15(4), SCR 22.03(2), and SCR 22.03(6).

¶ 14. The referee concluded that a 90-day suspension of Attorney Converse's law license was appropriate. The referee noted that Attorney Converse's two public reprimands and his 60-day suspension had failed to deter him from committing additional misconduct. The referee said Attorney Converse's proposal that he be allowed to perform community service came too late and without any supporting evidence or other assurances that a workable and feasible plan could be put in place that would adequately protect the public.

¶ 15. We accept the stipulation of the parties and the referee's findings of fact and conclusions of law. Attorney Converse's misconduct represents a serious failure to comply with the specified Rules of Professional Conduct. We also conclude that a 90-day suspension of Attorney Converse's license to practice law in Wisconsin is appropriate discipline for his misconduct. In spite of the fact that he has received two public reprimands and had his license suspended for 60 days for unrelated matters, Attorney Converse has again engaged in unprofessional conduct. Merely requiring him to perform community service would depreciate the seriousness of these offenses.

¶ 16. IT IS ORDERED that the license of Attorney Mark E. Converse to practice law in Wisconsin is suspended for a period of 90 days commencing on March 31, 2004.

¶ 17. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Mark E. Converse shall pay $3332.29 to the OLR representing the costs of these proceedings. If these costs are not paid within the time specified, and absent a showing to this court of an inability to pay the costs within that time, the license of Attorney Converse to practice law shall be suspended indefinitely until further, order of the court.

¶ 18. IT IS FURTHER ORDERED that Attorney Mark E. Converse comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 19. N. PATRICK CROOKS, J., did not participate.

       SCR 20:1.3 provides: "Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client."

       SCR 20:8.4(c) provides: "It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

       SCR 21.15(4) provides:
      (4) Every attorney shall cooperate with the office of lawyer regulation in the investigation, prosecution and disposition of grievances, complaints filed with or by the director, and petitions for reinstatement. An attorney's wilful failure to cooperate with the office of lawyer regulation constitutes violation of the rules of professional conduct for attorney.

       SCR 22.03(2) provides:
      (2) Upon commencing an investigation, the director shall notify the respondent of the matter being investigated unless in the opinion of the director the investigation of the matter requires otherwise. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail a request for a written response. The director may allow additional time to respond. Following receipt of the response, the director may conduct further investigation and may compel the respondent to answer questions, furnish documents, and present any information deemed relevant to the investigation.

       SCR 22.03(6) provides: "(6) In the course of the investigation, the respondent's willful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."

       SCR 20:1.5(c) provides:
      (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and if there is a recovery, showing the remittance to the client and the method of its determination.