John Krueger v. Appleton Area School District Board of Education , 376 Wis. 2d 239 ( 2017 )

2017 WI 70
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP231
COMPLETE TITLE: State of Wisconsin ex rel. John Krueger,
Plaintiff-Appellant-Petitioner,
v.
Appleton Area School District Board of Education
and
Communication Arts 1 Materials Review Committee,
Defendants-Respondents.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 370 Wis. 2d 787, 882 N.W.2d 870
(2016 – Unpublished)
OPINION FILED: June 29, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 15, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Outagamie
JUDGE: Vicki L. Clussman
JUSTICES:
CONCURRED: ABRAHAMSON, J. concurs, joined by A.W. BRADLEY,
J. (opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
filed by Richard M. Esenberg, Brian McGrath, Thomas C. Kamenick,
and Wisconsin Institute for Law and Liberty, Milwaukee, and an
oral argument by Richard M. Esenberg.
For the defendants-respondents, there was a brief by Andrew
T. Phillips, Christine V. Hamiel, and von Briesen and Roper,
S.C., Milwaukee, and oral argument by Christine V. Hamiel.
An amicus curiae brief was filed on behalf of The Wisconsin
Department of Justice by Anne M. Bensky, assistant attorney
general, and Brad D. Schimel, attorney general. There was an
oral argument by Anne M. Bensky.
An amicus curiae brief was filed on behalf of The Wisconsin
Freedom of Information Counsel, Wisconsin Newspaper Association
and Wisconsin Broadcasters Association by April Rockstead Barker
and Schott, Bublitz and Engel, S.C.
An amicus curiae brief was filed on behalf of Wisconsin
Counties Association, League of Wisconsin Municipalities,
Wisconsin Association of School Business Officials, Wisconsin
Association of School Personnel Administrators, Wisconsin
Association of School Boards, Wisconsin Council for
Administrative Services, Association of Wisconsin School
Administrators, and Wisconsin Association of School District
Administrators by Joseph L. Olson and Michael Best & Friedrich
LLP, Milwaukee.
2
2017 WI 70
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP231
(L.C. No. 2013CV868)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin ex rel. John Krueger,
Plaintiff-Appellant-Petitioner,
v. FILED
Appleton Area School District Board of JUN 29, 2017
Education and
Diane M. Fremgen
Communication Arts 1 Materials Review Clerk of Supreme Court
Committee,
Defendants-Respondents.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 MICHAEL J. GABLEMAN, J. This case requires us to
decide whether the Appleton Area School District's
Communications Arts 1 Materials Review Committee ("CAMRC") was a
governmental body subject to Wisconsin's open meetings law.
John Krueger, the parent of a child who attended school in the
District, sued CAMRC and the Appleton Area School District Board
of Education (the "Board"), alleging that CAMRC failed to comply
No. 2015AP231
with the open meetings law. The Outagamie County circuit court1
granted summary judgment in favor of the Board and CAMRC,
concluding that CAMRC was not subject to the open meetings law.
We now review the unpublished decision of the court of appeals2
that affirmed the circuit court's grant of summary judgment.
¶2 We reverse the decision of the court of appeals and
hold that CAMRC met the definition of "governmental body" under
the open meetings law and therefore was subject to its terms.
See Wis. Stat. § 19.82(1) (2011-12).3 Where a governmental
entity adopts a rule authorizing the formation of committees and
conferring on them the power to take collective action, such
committees are "created by . . . rule" under § 19.82(1) and the
open meetings law applies to them. Here, the Board's Rule 361
provided that the review of educational materials should be done
according to the Board-approved Assessment, Curriculum, &
Instruction Handbook (the "Handbook"). The Handbook, in turn,
authorized the formation of committees with a defined membership
and the power to review educational materials and make formal
recommendations for Board approval. Because CAMRC was formed as
one of these committees, pursuant to authority delegated to it
1
The Honorable Vicki L. Clussman, presiding.
2
State ex rel. Krueger v. Appleton Area Sch. Dist. Bd. of
Educ., No. 2015AP231, unpublished slip op. (Wis. Ct. App. June
28, 2016).
3
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
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No. 2015AP231
by the Board by means of Rule 361 and the Handbook, it was
"created by . . . rule" and therefore was a "governmental body"
under § 19.82(1).
¶3 We begin by setting forth the relevant factual
background surrounding the District's rules governing curriculum
review and the formation and operation of CAMRC.4 We next
analyze the statutory criteria that an entity must meet in order
to be a "governmental body" subject to the open meetings law.
We then apply these criteria to CAMRC, and we conclude that it
was a "governmental body" under Wis. Stat. § 19.82(1) and
therefore was subject to the open meetings law.
I. BACKGROUND
A. The District's Rules Governing Curriculum Review
¶4 Under the Wisconsin statutes, a school board is vested
with the authority to "adopt all the textbooks necessary for use
in the schools under its charge." Wis. Stat. § 118.03(1). In
the Appleton Area School District, the Board adopted Rule 361,5
which recognized that the Board, "as the governing body of the
4
As the court of appeals recognized, the parties have
agreed that there are no disputed issues of material fact.
Krueger, unpublished slip op., ¶2 n.1.
5
Rule 361 was adopted by the Board in 1993 and amended in
2003. On October 24, 2011 (after the formation of CAMRC), the
Board amended Rule 361 again and renumbered it "Rule 361.1."
The parties refer to Rule 361 and Rule 361.1 interchangeably.
Because there are no differences that are material to this case,
and because Rule 361 was in effect at the time that CAMRC was
formed, we cite to Rule 361 in this opinion. A full copy of
Rule 361 as it appears in the record is attached to this opinion
as Appendix A.
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School District, is legally responsible for all educational
materials utilized within the instructional program of the
[District]." Rule 361 further provided that "[t]he selection of
educational materials is delegated to the professionally trained
and certified personnel employed by the school system." In a
section titled "Procedures for Selection of Educational
Materials and Textbooks," Rule 361 provided that "[c]urriculum
revision is an ongoing process as defined in the Board approved
Appleton Area School District (AASD) Assessment, Curriculum, &
Instruction Handbook. This Handbook delineates the processes
leading to Board approval for curriculum revision, adoption of
new courses, and implementation of curriculum materials." The
Handbook had been developed by the District's Assessment,
Curriculum, and Instruction Department (the "ACI Department")
and presented to the Board for approval. The Board had voted to
adopt the Handbook on January 13, 2003.
¶5 By providing in Rule 361 that the selection of
educational materials was delegated to the ACI Department and by
adopting the Handbook to govern the performance of those duties,
the Board directed the ACI Department to follow the Handbook
when recommending educational materials for Board approval. The
head of the ACI Department, Kevin Steinhilber, acknowledged this
in his deposition.6 Rule 361 did not prohibit the ACI Department
6
When Steinhilber was asked if it was correct that, "in the
Board's rule, it tells you that when you do curriculum
revisions, you are to follow the process in the handbook," he
responded, "I would agree with that."
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from revising the Handbook or modifying Handbook procedures to
fit different situations.7 But Rule 361 nevertheless represented
the Board's formal authorization for the ACI Department to
review and recommend educational materials for Board approval
pursuant to the processes in the Handbook.
¶6 The Handbook provides that curriculum review is to be
performed on a 6-year cycle, on a course-by-course basis, by
committees formed for that purpose.8 As the Board and CAMRC
explained in their responses to Krueger's discovery requests,
The curriculum cycle, as set forth in the ACI
Handbook, contemplates the formation of committees for
program and course review, including provisions for
the committee makeup, application process for
committee membership, information to be provided to
committee members, the process for conducting
committee meetings, and the expected outcomes to be
achieved by review committees. . . .
Review committees are tasked with duties such as
reviewing existing curriculum, reviewing possible
materials/resources to support the curriculum, and
writing course and program curriculum. . . .
7
"From a practical standpoint," Steinhilber explained, the
Board "acknowledg[ed] that we have developed a handbook, and
that we adjust the processes we feel [are] appropriate. We also
determine, you know, when that occurs, for which courses, what
timelines, and we make recommendations then." But overall, he
testified, the "process that we follow is that we set up a
committee that reviews present curriculum, makes modifications,
looks for materials, educational materials, that support that.
We bring forward our recommendations to our Board, they review
it, they determine what other changes they may want, and then
they do Board approve [sic] that final product."
8
The relevant portions of the Handbook as they appear in
the record are attached to this opinion as Appendix B.
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[Ultimately,] the curriculum recommendations are
presented to the Board of Education for approval.
Indeed, the Handbook provides that the first step when beginning
a curriculum review cycle is to "[e]stablish a committee for
program review." The Handbook further provides that review
committees are to be composed of at least 17 individuals:
ACI Director/Coordinator; Administrators from High
School (1), Middle School (1) and Elementary School
(3); Teachers – High School Curriculum Support
Specialists (3), Middle School Curriculum Support
Specialists (4), and Elementary School (3); Special
Education representative; and as pertinent TAG, Title
I and ELL.
The ACI Department is supposed to select the members of the
review committee by soliciting and reviewing applications from
interested persons and sending the selected members "letters of
acceptance with information regarding [the] first meeting."
¶7 After a review committee is formed, the Handbook
authorizes the committee to perform a number of functions,
including "identify[ing] possible materials/resources."
Ultimately, the "committee makes the selection" of which
materials or resources to recommend to the Board. The process
culminates in presenting these recommendations to the Board for
its approval. The Board and CAMRC, in their discovery
responses, provided the following summary of the duties and
functions assigned by the Handbook to be performed by review
committees:
It is not until a review committee has: (1) identified
texts/materials costs; (2) revised curriculum with
broad representation throughout the District; (3)
identified essential learning objectives; (4)
identified how standards will be addressed within a
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No. 2015AP231
course; (5) identified/developed district-wide
assessments to benchmark major standards; (6) provided
curriculum to department, administrators, and ACI
Department for feedback; (7) made needed adjustments;
(8) suggested implementation strategies for the
following school year; and (9) curriculum documents
[are] reviewed by the content steering committee, that
the curriculum recommendations are presented to the
Board of Education for approval.
All of these provisions in the Handbook demonstrate that, as the
Board and CAMRC put it in their discovery responses, the
"Handbook provides the basis of authority for review committees,
such as CAMRC," to exist.
B. Krueger's Request and the Formation of CAMRC
¶8 In July of 2011, Krueger asked the District to create
an alternative Communications Arts 1 course that would use a
different reading list, consisting of materials at a ninth grade
reading level with no profanities, obscenities, or sexualized
content. At the time of Krueger's request, the Communications
Arts course curriculum had not gone through the Handbook's
review-committee process in approximately eight years. In light
of the standard six-year cycle, the Communications Arts
curriculum was approximately two years overdue for a review.
¶9 District officials met with Krueger and told him that
they were planning to begin the review process for
Communications Arts in grades 7 through 12 in about a year and a
half. They hoped that the new book list that would come out of
the upcoming review process would meet Krueger's request, and a
new course would not be necessary. Krueger was dissatisfied
with the long timeline, and District officials reconsidered.
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No. 2015AP231
They decided to go ahead and begin the review-committee process
authorized in the Handbook, but only as to the book list for the
Communications Arts 1 course. The book list needed updating
anyway, in light of the new Common Core standards. As
Steinhilber explained in his deposition, "we talked internally
after that meeting" with Krueger and "determined that, well,
knowing what we know about common core and needing those non-
fiction materials, that we could adjust and do a modified
version now knowing that we would go through a full curriculum
process in the future."
¶10 Steinhilber worked with Nanette Bunnow, the District's
Director of Humanities, to form CAMRC for this purpose. Bunnow
testified in her deposition that, when forming CAMRC, "We used
the process that was in place through [Rule] 361.1 in the
Handbook in a modified process." Although Krueger's request was
the impetus for forming CAMRC, it was undisputed that CAMRC was
formed as a review committee pursuant to a modified version of
the Handbook process.9 According to Bunnow, the process was
modified in that "we only looked at the book list" rather than
reviewing and rewriting the full curriculum, "because the
concern that was brought forth was related to the materials. We
were not in a full curriculum cycle." Nonetheless, Bunnow said,
9
For example, as Steinhilber testified in his deposition:
Q: CAMRC was a Review Committee operating under the
ACI Handbook. You agree with that, right?
A: I do.
8
No. 2015AP231
"Superintendent Allinger was interested in us doing a full
review [of the materials] because they hadn't been reviewed for
eight years prior." The purpose of following the Handbook
process for review committees, Bunnow explained, is "to make
sure that we're all following a similar process no matter which
curriculum [is being reviewed]." When asked to confirm that
CAMRC derived its authority and functions from Rule 361 and the
Handbook (and not from anywhere else), Bunnow agreed.10
¶11 In forming CAMRC, Steinhilber and Bunnow "sought
members the same way as we have in the past" when forming other
review committees pursuant to the Handbook. "In our handbook,"
Bunnow testified, "we have a process where we advertise or have
applications that go out and say that we are currently seeking
teachers . . . that are stakeholders in the curriculum, either
teach it, or have taught it, or have some knowledge related to
the intent of the committee." As a result of Bunnow's
solicitations, 17 people came forward and were selected for
membership on CAMRC. The 17 members included eleven teachers,
three Communications Arts Curriculum Support Specialists, one
10
As Bunnow put it, "[Rule] 361.1 and the ACI Handbook is
the process that we did follow because Superintendent Allinger
asked us to address the parent concerns." This is consistent
with the Board's and CAMRC's discovery responses, which stated
that "CAMRC was created pursuant to a modified 6-year curriculum
cycle, a process which is enumerated in the ACI Handbook." The
Board and CAMRC further explained that "CAMRC's purpose and
tasks are clearly enumerated by the ACI Department, and ACI
Department policy guided CAMRC through the modified curriculum
process, as dictated by the ACI Department." Further, "CAMRC's
membership was determined as set forth in the ACI Handbook."
9
No. 2015AP231
Library Media Specialist, and one high school principal. Bunnow
herself served as chair of the committee.
C. The Functions and Operation of CAMRC
¶12 CAMRC held its first meeting on Monday, October 3,
2011, and the full committee met a total of eight times, always
on a Monday at 3:45 p.m. in the same location. Although CAMRC
did not revise the entire curriculum for Communications Arts,
CAMRC performed many of the other functions that the Handbook
assigns to review committees. It identified a list of 93
potential books for the course, it reviewed them in light of
course standards, it put a proposed list out for public input,
and it voted on which books to include. CAMRC arrived at a
final list of two dozen books to recommend to the Board. All of
these steps were taken in accord with duties assigned to review
committees by the Handbook.
¶13 At that point in the process, Bunnow testified, "[w]e
finished up the process as designed. We took it as an item for
consideration to the Board." The book list was presented to the
Board's Programs and Services Committee, which voted to approve
the list and bring it before the full Board. The full Board
voted to approve the list on April 23, 2012. Bunnow confirmed
in her testimony that this "process was authorized through
[Rule] 361.1 and the ACI Handbook."
¶14 The Board, too, understood CAMRC to be following the
Handbook process for review committees. Shortly after CAMRC was
formed, Bunnow and Steinhilber had brought an "item of
information" before the Board explaining that they had created
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No. 2015AP231
CAMRC under a modified version of the Handbook's review-
committee process to review the book list for Communications
Arts 1. The Board had an opportunity to ask questions or to
request a vote if it did not approve of the modifications to the
review-committee process for CAMRC. Diane Barkmeier, a member
of the Board, testified that her understanding was that CAMRC
was "part of the curriculum and materials review process."
Recalling the Board's approval of CAMRC's recommendations for
the Communications Arts 1 book list, Barkmeier testified:
Q: So — But what the Board, in essence, sets up here
is procedures under the rule and under the
handbook that review committees like CAMRC are
supposed to follow as they formulate the
recommendations to the Board, correct?
A: Correct. . . .
Q: And then CAMRC comes to the full Board on April
23, 2012, to see if you'll adopt the
recommendations at the suggestion of the
committee, right?
A: Correct.
Q: And you voted to adopt the recommendations of
CAMRC as the new educational materials for the
district, right?
A: We did . . . . As a Board.
Q: And all of that process is the process set forth
in rules 361 or 361.1 and the ACI Handbook,
right?
A: Right.
¶15 In short, every school official involved in the
process (including the Board, the Superintendent, and
Steinhilber and Bunnow) understood CAMRC to have been extant
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No. 2015AP231
pursuant to the authority of Rule 361 and the Handbook as
approved by the Board, for the purpose of performing the
delegated functions of reviewing curriculum materials and
presenting them for Board approval.
D. Procedural History
¶16 Although it was Krueger's request that spurred
District officials to form CAMRC pursuant to a modified version
of the Handbook process to review the Communications Arts 1 book
list, the District did not permit Krueger to attend CAMRC
meetings. He asked to attend, but the District denied his
request and informed him that CAMRC meetings were not open to
the public. The District took the position that the open
meetings law did not apply to CAMRC.
¶17 On July 29, 2013, Krueger filed a complaint in
Outagamie County circuit court, alleging violations of the open
meetings law.11 The Board and CAMRC moved for summary judgment,
and the circuit court granted their motion.
11
A person may not sue to enforce the open meetings law
unless the person has first filed a verified complaint with the
district attorney. See Journal Times v. City of Racine Bd. of
Police and Fire Comm'rs, 2015 WI 56, ¶¶51-52, 362 Wis. 2d 577,
866 N.W.2d 563 (refusing to address an open meetings claim where
the procedures for filing suit under the open meetings law were
not followed). Only "[i]f the district attorney refuses or
otherwise fails to commence an action to enforce this subchapter
within 20 days after receiving a verified complaint" may the
person "bring an action . . . on his or her relation in the
name, and on behalf, of the state." Wis. Stat. § 19.97(4).
Here, it is not disputed that Krueger properly filed a verified
complaint with the Outagamie County district attorney at least
20 days before commencing this action in the name of the State.
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¶18 Krueger appealed, and the court of appeals affirmed.
The court of appeals considered it dispositive that CAMRC was
created by District officials in response to Krueger's request,
rather than by the Board directly. Krueger, unpublished slip
op., ¶¶18-21. The court of appeals relied on the fact that Rule
361 did not expressly create CAMRC and that nothing in the
Handbook mandated that CAMRC, specifically, be created. See
id., ¶7. The court of appeals viewed CAMRC as an ad hoc group
of government employees rather than as a governmental body that
was subject to the open meetings law.
¶19 Krueger petitioned this court for review, which we
granted on October 11, 2016.
II. STANDARD OF REVIEW
¶20 At issue in this case is whether the lower courts
properly interpreted and applied the open meetings law in
granting summary judgment to the Board and CAMRC. This is a
question of statutory interpretation for our independent review.
Journal Times v. City of Racine Bd. of Police and Fire Comm'rs,
2015 WI 56, ¶42, 362 Wis. 2d 577, 866 N.W.2d 563. "When a
circuit court's ruling on motions for declaratory judgment
depends on questions of law, we review the ruling de novo."
Gister v. Am. Family Mut. Ins., 2012 WI 86, ¶8, 342 Wis. 2d 496,
818 N.W.2d 880. We review questions of law "independently of
the circuit court and court of appeals but benefiting from their
analyses." State v. Popenhagen, 2008 WI 55, ¶32, 309
Wis. 2d 601, 749 N.W.2d 611.
III. DISCUSSION
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No. 2015AP231
A. The Definition of a "Governmental Body"
¶21 Wisconsin's open meetings law begins by declaring that
"the public is entitled to the fullest and most complete
information regarding the affairs of government as is compatible
with the conduct of governmental business." Wis. Stat.
§ 19.81(1). Toward that end, the law requires that every
meeting of a "governmental body" be preceded by public notice
and kept open to the public, except where a statutory exception
authorizes the body to meet in closed session. See generally
Wis. Stat. §§ 19.81-19.85.
¶22 Our focus today is on the threshold question of when
the open meetings law applies. An entity is subject to the open
meetings law if it is a "governmental body" as defined in Wis.
Stat. § 19.82(1). The statute provides, in relevant part, that
"'[g]overnmental body' means a state or local agency, board,
commission, committee, council, department or public body
corporate and politic created by constitution, statute,
ordinance, rule or order . . . or a formally constituted subunit
of any of the foregoing . . . ." § 19.82(1).12
12
The rest of the definition, which we need not address in
this case, provides that "governmental body" also includes "a
governmental or quasi-governmental corporation except for the
Bradley center sports and entertainment corporation; a local
exposition district under subch. II of ch. 229; [or] a long-term
care district under s. 46.2895." Wis. Stat. § 19.82(1). It
also "excludes any such body or committee or subunit of such
body which is formed for or meeting for the purpose of
collective bargaining under subch. I, IV, or V of ch. 111." Id.
(continued)
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¶23 This definition imposes certain requirements,
including the requirement that the entity must take one of seven
forms: a "state or local agency, board, commission, committee,
council, department or public body corporate and politic." Wis.
Stat. § 19.82(1). The adjectives "state or local" modify each
item on this list,13 indicating that the entity must be a part of
either state or local government. The entity must also be
"created by constitution, statute, ordinance, rule or order."
Id. Taken together, these provisions define a "governmental
body" not by the purpose behind its formation or by the subject
matter of its meetings, but simply by two criteria: (1) the form
it takes and (2) the source of its existence in a constitution,
statute, ordinance, rule, or order.
¶24 First, a governmental body must take the form of a
"state or local agency, board, commission, committee, council,
department or public body corporate and politic." Wis. Stat.
We also note that some entities that fit the statutory
definition nevertheless may be exempt from the open meetings law
for constitutional reasons. See State ex rel. Lynch v. Dancey,
71 Wis. 2d 287, 295-96, 238 N.W.2d 81 (1976) (holding that the
supreme court's superintending authority over the judicial
system preempted the application of the open meetings law to a
body created by and under the authority of the court).
13
"In the absence of some other indication, the modifier
reaches the entire enumeration." Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 147
(2012) (citing Ward Gen. Ins. Servs. v. Employers Fire Ins., 7
Cal. Rptr. 3d 844, 849 (Ct. App. 2003) ("Most readers expect the
first adjective in a series of nouns or phrases to modify each
noun or phrase in the following series unless another adjective
appears.")).
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§ 19.82(1). We gain additional insight into what this requires
from other parts of the open meetings law. In particular, we
note that a "meeting" of a governmental body is defined as "the
convening of members of a governmental body for the purpose of
exercising the responsibilities, authority, power or duties
delegated to or vested in the body." § 19.82(2). This implies
that a governmental body must have a defined membership, because
without clarity as to who is and who is not a member, it could
be impossible to determine when a sufficient number of members
is assembled to constitute a "meeting" of the body. See State
ex rel. Newspapers, Inc. v. Showers, 135 Wis. 2d 77, 102, 398
N.W.2d 154 (1987) (holding that a meeting of a governmental body
does not occur unless "the number of members present [is]
sufficient to determine the parent body's course of action").
Further, the statutory definition of "meeting" states that
particular responsibilities, authority, power or duties must be
delegated to or vested in the body, as distinct from the members
individually. Wis. Stat. § 19.82(2); see State ex rel. Lynch v.
Conta, 71 Wis. 2d 662, 681, 239 N.W.2d 313 (1976) (noting that a
necessary characteristic of a governmental body is that
"collective power" has been conferred upon it).
¶25 Second, the governmental body must be "created by
constitution, statute, ordinance, rule or order." Wis. Stat.
§ 19.82(1). In the general sense of the word, to "create" means
to "cause to exist; bring into being." Create, American
Heritage Dictionary 438 (3d ed. 1992). In light of this
definition, there must be a constitutional provision, statute,
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No. 2015AP231
ordinance, rule, or order that caused a governmental body to
exist where none existed before. In order to cause a body to
exist, the relevant directive must confer upon it the collective
"responsibilities, authority, power or duties" that are
necessary to a governmental body's existence under the open
meetings law. See 78 Wis. Op. Att'y Gen. 67, 69 (1989) (OAG 13-
89) ("The board would, therefore, be creating a committee by
order whenever it authorizes the committee and assigns the
duties and functions of the committee.").14
¶26 For these reasons, the creation of a governmental body
is not triggered merely by "any deliberate meetings involving
governmental business between two or more officials." Showers,
135 Wis. 2d at 98. Loosely organized, ad hoc gatherings of
government employees, without more, do not constitute
governmental bodies. See 57 Wis. Op. Atty. Gen. 213, 216 (1968)
(explaining that "meetings between the [] head of a department
and . . . the entire staff of a department" were not covered by
the former version of the open meetings law "because the staff
does not constitute a body"). Rather, an entity must exist that
14
"The opinions of the Attorney General are not binding on
the courts but may be given persuasive effect." Milwaukee
Journal Sentinel v. City of Milwaukee, 2012 WI 65, ¶41, 341 Wis.
2d 607, 815 N.W.2d 367. Opinions of the Attorney General
interpreting the public records and open meetings laws have
"special significance . . . inasmuch as the legislature has
specifically authorized the Attorney General to advise any
person about the applicability of the Law." Id.; see Wis. Stat.
§ 19.98 ("Any person may request advice from the attorney
general as to the applicability of this subchapter under any
circumstances.")
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has the power to take collective action that the members could
not take individually. See id. at 218 (concluding that the
faculty of a state university was a body covered by the former
version of the open meetings law, in part because, under the
"faculty handbook, constitution and bylaws, . . . the structure
of that faculty body does indeed provide for the taking of
formal actions, as a body, with regard to delegated policy-
making and administrative functions.") As this court has
succinctly put it, "the question of whether a particular group
of members of the government actually compose a governmental
body is answered affirmatively only if there is a 'constitution,
statute, ordinance, rule or order' conferring collective power
and defining when it exists." Conta, 71 Wis. 2d at 681.
B. CAMRC Was a "Governmental Body"
¶27 Applying these principles, we conclude that CAMRC was
a committee created by rule under Wis. Stat. § 19.82(1). First,
it qualifies as a "committee" for purposes of the open meetings
law because it had a defined membership of 17 individuals upon
whom was conferred the authority, as a body, to review and
select recommended educational materials for the Board's
approval. This authority to prepare formal curriculum
recommendations for Board approval was not exercised by teachers
and curriculum specialists on their own. The Board——acting
through Rule 361 and the Handbook——provided that the members of
review committees would exercise such authority collectively, as
a body. Second, CAMRC was created by rule because District
employees, when they formed CAMRC, relied on the authority to
18
No. 2015AP231
form review committees that was delegated to them by Rule 361
and the Handbook.
1. CAMRC Was a "Committee"
¶28 The parties appear to agree that CAMRC took the form
of a "committee" for purposes of the open meetings law, and they
focus their dispute instead on the second part of the
definition. But we are not bound by the parties' concessions.
See State v. Hunt, 2014 WI 102, ¶42 n.11, 360 Wis. 2d 576, 851
N.W.2d 434. We therefore briefly explain why we agree that
CAMRC was a "committee" under Wis. Stat. § 19.82(1).
¶29 First, CAMRC was formed as a collective entity with a
defined membership of 17 particular individuals. Although these
individuals volunteered, and Bunnow suggested that more would
have been welcome to join, the 17 nevertheless constituted a
defined membership selected pursuant to the procedures set forth
in the Handbook. Bunnow testified that all 17 members were
present and voting at all CAMRC meetings, except for a final
meeting which Bunnow characterized as merely a "subcommittee"
meeting.
¶30 Nor was CAMRC simply a loosely organized, ad hoc
gathering of employees meeting to share knowledge or to
facilitate their existing job duties. As members of CAMRC, the
17 teachers, curriculum specialists, and others were meeting to
fulfill a collective responsibility that Rule 361 and the
Handbook had assigned to review committees, namely, the
responsibility to review the book list for the Communications
Arts 1 course and to recommend revisions to that book list to
19
No. 2015AP231
the Board for formal approval. The Board-approved Handbook
vested review committees such as CAMRC with the power to
"identify possible materials/resources" and ultimately "make[]
the selection" of which materials or resources should be
recommended to the Board. None of the teachers or curriculum
specialists on CAMRC would have had this authority individually,
but as members of CAMRC, they were empowered to vote on how
CAMRC should exercise its collective authority as a body.
¶31 That CAMRC called itself a "committee," kept minutes,
and recorded attendance and votes are informative, but not
dispositive, facts. The essential elements of the form that an
entity must take in order to be a governmental body are (1) a
defined membership and (2) collective responsibilities,
authority, power, and duties vested in the body as a whole,
distinct from the individual members. CAMRC met both of these
elements, and therefore we have no difficulty concluding that it
was a "committee" under the definition in Wis. Stat. § 19.82(1).
2. CAMRC Was Created By Rule
¶32 We conclude that CAMRC was created by rule, because
Rule 361 and the Handbook together constituted a "rule" under
Wis. Stat. § 19.82(1) that authorized CAMRC to exist and
conferred collective authority on it.
¶33 The open meetings law does not define the term "rule,"
so we look to its common usage. "Statutory language is given
its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their
technical or special definitional meaning." State ex rel. Kalal
20
No. 2015AP231
v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110. The common definition of a "rule" includes "[a]n
authoritative, prescribed direction for conduct, especially one
of the regulations governing procedure in a legislative body."
Rule, American Heritage Dictionary 1577 (3d ed. 1992).15 We see
no indication in the open meetings law that "rule" should be
given a peculiar technical meaning instead of being "liberally
construed" along with the rest of the open meetings law. See
Wis. Stat. § 19.81(4). Therefore, for purposes of the open
meetings law, we conclude that a "rule" includes any
authoritative, prescribed direction for conduct, such as the
regulations governing procedure in a governmental body.16
¶34 Here, Rule 361 and the Handbook constituted a "rule"
because they were adopted by the Board to prescribe the
procedures for District employees to follow in reviewing
educational materials and presenting them to the Board for
15
"Resort to definitions, statutory or dictionary, is
appropriate for the purpose of determining meaning that is plain
on the face of the statute." State ex rel. Girouard v. Cir. Ct.
for Jackson Cty., 155 Wis. 2d 148, 156, 454 N.W.2d 792 (1990).
16
Our recognition that the term "rule" in Wis. Stat.
§ 19.82(1) should be given a common, ordinary, and accepted
meaning is not inconsistent with the Attorney General's
interpretation of the term "order" in § 19.82(1), which also is
derived from a common dictionary definition. See 78 Wis. Op.
Att'y Gen. 67, 68-69 (1989) (OAG 13-89) (defining "order" to
include "an authoritative mandate usu[ally] from a superior to a
subordinate" and explaining that "[n]either the statute nor the
dictionary definition require that the order be formal. All
that is required to create a governmental body is a directive
creating the body and assigning it duties.")
21
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approval. Specifically, Rule 361 provided that "[t]he selection
of educational materials is delegated to the professionally
trained and certified personnel employed by the school system"
and that the Board-approved "Handbook delineates the processes
leading to Board approval for curriculum revision, adoption of
new courses, and implementation of curriculum materials." The
processes set forth in the Handbook specifically provided for
the creation of review committees for this purpose. As the
Board and CAMRC stated in their discovery responses, "Review
committees are tasked with duties such as reviewing existing
curriculum, reviewing possible materials/resources to support
the curriculum, and writing course and program curriculum."
Ultimately, "the curriculum recommendations are presented to the
Board of Education for approval."
¶35 Therefore, Rule 361 and the Handbook authorized CAMRC
to exist and conferred on it the collective authority to review
curriculum materials and make a recommendation to the Board.
Steinhilber and Bunnow simply put the Handbook process into
action when they formed CAMRC to review the book list for
Communications Arts 1. As Bunnow testified, "[w]e used the
process that was in place through [Rule 361] in the Handbook in
a modified process." Although Bunnow and Steinhilber modified
the Handbook process somewhat, in that CAMRC reviewed only the
book list "because the concern that was brought forth was
related to the materials," Steinhilber agreed that CAMRC was a
review committee operating under the Handbook, and Bunnow
22
No. 2015AP231
similarly agreed that Rule 361 and the Handbook provided the
sole authority for CAMRC to exist.
¶36 Underscoring the nature of the rule under which CAMRC
was formed is the fact that, after forming CAMRC, Bunnow went
before the Board to explain how the Handbook procedures had been
modified to create CAMRC. The Board had a chance to ask
questions, and it permitted CAMRC to continue. Barkmeier, a
member of the Board, testified that she understood CAMRC to be
"part of the curriculum and materials review process." Bunnow
testified that CAMRC "finished up the process as designed" when
it ultimately presented its recommended book list to the Board
for approval, and this "process was authorized through [Rule
361] and the ACI Handbook."
¶37 Accordingly, we conclude that CAMRC was created by
Rule 361 and the Handbook, because even though it was
Steinhilber and Bunnow who put the Handbook process into action
when they formed CAMRC, it was the Board's Rule 361 and the
Board-approved Handbook that authorized review committees like
CAMRC to be created and conferred on them the collective
authority to review curriculum materials and make
recommendations to the Board.
¶38 The court of appeals reached the opposite conclusion,
reasoning that neither Rule 361 nor the Handbook "created" CAMRC
because CAMRC "was not created based on any specific provision
of either" Rule 361 or the Handbook. Krueger, unpublished slip
op., ¶7. The court found it dispositive that CAMRC was formed
not by a directive of the Board but by Steinhilber and Bunnow,
23
No. 2015AP231
acting "on their own initiative" and "borrow[ing] concepts from
Board Rule 361.1 and the ACI Handbook." Id., ¶¶7, 21.
¶39 In light of the extensive testimony about how CAMRC
was understood to be one of the review committees authorized by
the Board through Rule 361 and the Handbook——albeit using a
somewhat modified process——we do not find the court of appeals'
distinction persuasive. We agree with the Attorney General's
opinion that a committee is created whenever a governmental
body, by rule, "authorizes the committee and assigns the duties
and functions of the committee." See 78 Op. Att'y Gen. 67, 69
(1989) (OAG 13-89). Here, it was the Board's Rule 361 and the
Board-approved Handbook——not a directive from Steinhilber or
Bunnow——that provided the legal authority for CAMRC to exist and
set forth CAMRC's duties and functions. Although the Handbook
did not specifically constitute CAMRC by name, it authorized
review committees like CAMRC to exist and to exercise the
Board's delegated authority over curriculum review. It was that
authority that Steinhilber and Bunnow relied on when they formed
CAMRC to review the Communications Arts 1 book list.
¶40 For the same reason, the fact that CAMRC did not
follow all Handbook procedures to the letter is not dispositive.
For example, the Handbook provided for the members of a review
committee to include five administrators (one each from a high
school and a middle school and three from an elementary school).
By contrast, CAMRC included only one high school administrator,
and it otherwise consisted of teachers and curriculum support
specialists, along with a library media specialist. However,
24
No. 2015AP231
Bunnow and Steinhilber testified that the Handbook process was
adjustable depending on the purpose of the particular review
committee, and the membership of review committees often varied.
Here, CAMRC was tasked with reviewing the book list for a
particular class and making recommendations to the Board, and if
it served that goal to have a greater proportion of teachers on
the committee, along with a library media specialist, the
Handbook did not prohibit such modifications. In no way did the
composition of CAMRC affect its authority to act as a review
committee under Rule 361 and the Handbook.
¶41 Krueger also argues, in the alternative, that CAMRC
was created by "order" of Steinhilber or Bunnow. The court of
appeals held that this argument was forfeited because it first
appeared in Krueger's reply brief. On appeal, Krueger renews
this argument, but we need not resolve it because we hold that
CAMRC was created by rule under Rule 361 and the Handbook.
Krueger's arguments as to why CAMRC might alternatively have
been created by "order" do nothing to disturb our conclusion.
¶42 Finally, the Board and CAMRC argue that subjecting
committees like CAMRC to the open meetings law would be
detrimental to the functioning of government. But our task is
to apply the open meetings law as it is written. If the
District "seeks change in the statutory provisions [of the open
meetings law], it must direct those concerns to the
legislature." Journal Times, 362 Wis. 2d 577, ¶52. We,
however, "presum[e] that the legislature chose its terms
carefully and precisely to express its meaning," Ball v. Dist.
25
No. 2015AP231
No. 4, Area Bd. of Vocational, Technical & Adult Educ., 117 Wis.
2d 529, 539, 345 N.W.2d 389 (1984), and we are not at liberty to
exempt CAMRC from the definition of "governmental body" simply
because government officials would find it convenient. "Mere
government inconvenience is obviously no bar to the requirements
of the [open meetings] law." Conta, 71 Wis. 2d at 678.
IV. CONCLUSION
¶43 For all of these reasons, we reverse the decision of
the court of appeals and hold that CAMRC was a "state or
local . . . committee . . . created by . . . rule" and therefore
met the definition of "governmental body" under the open
meetings law. See Wis. Stat. § 19.82(1). Where a governmental
entity adopts a rule authorizing the formation of committees and
conferring on them the power to take collective action, such
committees are "created by . . . rule" under § 19.82(1) and the
open meetings law applies to them. Here, the Board's Rule 361
provided that the review of educational materials should be done
according to the Board-approved Handbook. The Handbook, in
turn, authorized the formation of committees with a defined
membership and the power to review educational materials and
make formal recommendations for Board approval. Because CAMRC
was formed as one of these committees, pursuant to the authority
delegated from the Board by Rule 361 and the Handbook, it was
"created by . . . rule" and therefore was a "governmental body"
under § 19.82(1).
26
No. 2015AP231
By the Court.—The decision of the court of appeals is
reversed, and the cause is remanded to the circuit court for
further proceedings consistent with this opinion.
27
No. 2015AP231
APPENDIX A
1
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2
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3
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4
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5
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6
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7
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APPENDIX B
1
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2
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3
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4
No. 2015AP231.ssa
¶44 SHIRLEY S. ABRAHAMSON, J. (concurring). The instant
case traverses the Open Meetings Law and public education. The
Open Meetings Law1 reflects Wisconsin's deep commitment to open
and transparent government.2 Education is a key constitutional
function of Wisconsin government. Wis. Const. Art. X.
¶45 Our democratic system of government——as well as the
well-being of each person in this state and the sound
functioning of our economic system——depends on a well-educated
population. "Wisconsin students have a fundamental right to an
equal opportunity for a sound basic education. An equal
opportunity for a sound basic education is one that will equip
students for their roles as citizens and enable them to succeed
economically and personally." Vincent v. Voight, 2000 WI 93,
¶3, 236 Wis. 2d 588, 614 N.W.2d 388.
¶46 Parental and public involvement in education is, in my
opinion, indispensable, and is legislatively protected by the
Open Meetings Law. It is not, however, in the parents' or
public's interest to make every collaborative decision made by
1
See generally Wisconsin Statutes Chapter 19, Subchapter V
entitled Open Meetings of Governmental Bodies, Wis. Stat.
§§ 19.81-98.
2
State v. Beaver Dam Area Dev. Corp., 2008 WI 90, ¶2, 312
Wis. 2d 84, 752 N.W.2d 295.
1
No. 2015AP231.ssa
educators subject to the strictures of the Open Meetings Law.3
The application of the Open Meetings Law to education (or any
other government function) is not without limits.
¶47 The legislative declaration of policy in the Open
Meetings Law states in full as follows:
In recognition of the fact that a representative
government of the American type is dependent upon an
informed electorate, it is declared to be the policy
of this state that the public is entitled to the
fullest and most complete information regarding the
affairs of government as is compatible with the
conduct of governmental business.
Wis. Stat. § 19.81(1) (emphasis added).4
¶48 Indeed the Open Meetings Law conveys limits. The
legislature intended the Law to be construed liberally but not
so that it impedes the functioning of government. On the one
hand, the legislature's declaration of policy explicitly states:
The policy of the state is that the public have the fullest and
most complete information regarding the affairs of government.
On the other hand, the legislature's declaration of policy also
proclaims a countervailing concern and limitation: The Open
3
"Even though Wisconsin courts have not specifically
addressed this issue, the extensive federal case law in this
area establishes that parents simply do not have a
constitutional right to control each and every aspect of their
children's education and oust the state's authority over that
subject." Larson v. Burmaster, 2006 WI App 142, ¶39, 295
Wis. 2d 333, 720 N.W.2d 134.
4
See also Wis. Stat. § 19.31 (providing that the policy of
the public records law is to ensure that the public has access
to "the greatest possible information regarding the affairs of
government and the official acts of those . . . who represent
them.") (emphasis added).
2
No. 2015AP231.ssa
Meetings Law prevails "as is compatible with the conduct of
governmental business."
¶49 Both aspects of the legislative policy statement
should guide this court's interpretation and application of the
Open Meetings Law in the instant case. Government operations
should be open and transparent to the fullest extent possible.
But, the Open Meetings Law should not be interpreted to apply to
every meeting between administrators and employees and others to
discuss how to implement specific policies or programs or how to
do their day-to-day jobs. These kinds of meetings take place
routinely, and as the Department of Justice has advised: "They
cannot be made subject to the open meetings law because to do so
would make it impossible to carry out the day-to-day business of
government."5
¶50 To distinguish between these two kinds of meetings
under the Open Meetings Law is the difficult issue presented.
¶51 The importance of this case to the public and to
school officers and employees for the transparent and effective
5
Letter from Assistant Attorney General Mary Woolsey
Schlaefer to Jim Pepelnjak of the Milwaukee Journal Sentinel
Inc. (June 8, 1998). See also Wisconsin Department of Justice's
Wisconsin Open Meetings Law Compliance Guide 7 (Nov. 2015) ("The
definition of a 'governmental body' is only rarely satisfied
when groups of a governmental unit's employees gather on a
subject within the unit's jurisdiction."); Letter from Assistant
Attorney General Thomas C. Bellavia to Joe Tylka (June 8, 2005)
(the Open Meetings Law does not apply to "meetings of groups of
government officials and employees that are not established
pursuant to some such informal directive, but that simply meet
together on an ad hoc basis in the interest of governmental
efficiency . . . .)".
3
No. 2015AP231.ssa
operations of a school system is evident from the numerous
briefs the court has received from many stakeholders:
• The parent (John Krueger) has submitted briefs;
• The Appleton Area School District Board of Education
and Communication Arts 1 Materials Review Committee
have jointly submitted a brief;
• The Wisconsin Department of Justice has submitted a
non-party amicus brief;6
• The Wisconsin Freedom of Information Council, the
Wisconsin Newspaper Association, and the Wisconsin
Broadcasters Association have jointly submitted a non-
party amicus brief; and
• The Wisconsin Counties Association, the League of
Wisconsin Municipalities, the Wisconsin Association of
School Business Officials, the Wisconsin Association
of School Personnel Administrators, the Wisconsin
Association of School Boards, the Wisconsin Council
for Administrative Services, the Association of
Wisconsin School Administrators, and the Wisconsin
Association of School District Administrators have
jointly submitted a non-party amicus brief.
¶52 All the briefs, including the Department of Justice's
brief, agree that this court's guidance is needed to develop the
6
The Department of Justice's brief did not focus on the
facts of the instant case. The Department of Justice did not
support either John Krueger or the School Board regarding the
application of the Open Meetings Law to the instant case.
4
No. 2015AP231.ssa
definition of "governmental body" in the Open Meetings Law.
They agree that more clarity is needed than is currently
provided by the Department of Justice's formal and informal
communications. Clarity is needed because government functions
best when it has clearly defined and uniformly applicable
standards.
¶53 The briefs are, however, far from agreement as to what
the court's guidance should be, even when they agree on the
bottom line, that is, even when they agree whether CAMRC is or
is not a governmental body subject to the Open Meetings Law.7 (I
shall refer to CAMRC as the Review Committee.)
¶54 I focus, as the majority opinion and briefs do, on the
word "create" in Wis. Stat. § 19.82(1) as the significant word
in the instant case in determining whether the Review Committee
fits within the definition of "governmental body" in the Open
Meetings Law. The definition of "governmental body" is
important because the Open Meetings Law applies to every meeting
of a governmental body. Wis. Stat. § 19.83(1). "Governmental
body" is defined in § 19.82(1) as follows:
(1) "Governmental body" means a state or local agency,
board, commission, committee, council, department or
public body corporate and politic created by
constitution, statute, ordinance, rule or
order . . . . (Emphasis added.)
¶55 Whether the Review Committee is a governmental body
subject to the Open Meetings Law is a close call for me.
7
"CAMRC" is used by the majority opinion. CAMRC refers to
the Communication Arts 1 Materials Review Committee.
5
No. 2015AP231.ssa
Indeed, at oral argument John Krueger's counsel often stated in
response to questions from the court posing hypotheticals:
"Line drawing is very difficult."
¶56 I am not persuaded by the parent's arguments that a
rule or order created the Review Committee. The best that can
be said for the parent's position is that the "creation" in the
instant case may be hazy.
¶57 The Department of Justice's Wisconsin Open Meetings
Law Compliance Guide (Nov. 2015) at 6 recommends that "[a]ny
doubts as to the applicability of the open meetings law should
be resolved in favor of complying with the law's requirements."
I do not necessarily agree with this recommendation. It fails
to recognize the legislature's countervailing interests of
transparency and effective government operations. Furthermore,
the parent in the instant case had access to the work of the
Review Committee through his open records requests, and he had
the opportunity to make his suggestions heard by the Review
Committee.
¶58 Moreover, and significantly, an important issue at
this stage of the instant case is not merely the label pinned on
the Review Committee but rather the next step should the
majority opinion declare that the Review Committee was a
governmental body subject to the Open Meetings Law. The
parent's brief does not request that the acts of the Review
Committee be voided under Wis. Stat. § 19.97(3).
¶59 I do not join the majority opinion for several
reasons.
6
No. 2015AP231.ssa
¶60 First, the majority opinion gives short shrift to Wis.
Stat. § 19.81(1), the legislative policy requiring transparent
government "as is compatible with the conduct of governmental
business." The majority opinion seems to read this aspect of
the legislative policy statement out of the Open Meetings Law,
or at the least gives it little or no weight in interpreting the
Open Meetings Law. Majority op., ¶42.
¶61 Yet a court looks at a statement of legislative policy
as an intrinsic guide to meaning. Schilling v. Crime Victim
Rights Bd., 2005 WI 17, ¶14, 278 Wis. 2d 216, 692 N.W.2d 623;
Wisconsin's Environmental Decade, Inc. v. P.S.C., 69 Wis. 2d 1,
18, 230 N.W.2d 243 (1975); Letter from Assistant Attorney
General Mary Woolsey Schlaefer to Jim Pepelnjak of the Milwaukee
Journal Sentinel Inc. (June 8, 1998); Wisconsin Bill Drafting
Manual 2017-2018, 7.02.
¶62 Second, I disagree with the majority opinion's
conclusion at ¶33 that the word "rule" in Wis. Stat. § 19.82(1)
should be given the dictionary definition that appears in the
1992 version of the American Heritage Dictionary. According to
the majority opinion, the definition of "'rule' includes "an
authoritative, prescribed direction for conduct, especially one
7
No. 2015AP231.ssa
of the regulations governing procedure in a legislative body."
Majority op., ¶33.8
¶63 The statute, Wis. Stat. § 19.82(1), defines
"governmental body," inter alia, as a "committee" that is
"created by constitution, statute, ordinance, rule or order."9
Each of the words in the list beginning with the word
"constitution" is used in common parlance, but each is used in
the statute in a technical, legal sense. Each describes a
written, formal document enacted as required by law. Why would
the legislature switch in midsentence and not use the words
"rule or order" in their technical, legal sense? Applying a
generally accepted canon of statutory interpretation, I conclude
that the legislature did not make a switch in midsentence.
8
A single word can have multiple definitions. The American
Heritage Dictionary provides well over a dozen formulations of a
definition for the word "rule." Likewise, the online version of
the Merriam-Webster Dictionary defines "rule" in over a dozen
ways. By choosing one definition from the American Heritage
Dictionary without explaining why that definition applies, the
majority opinion overlooks a court's directive in statutory
interpretation: "Many words have multiple dictionary
definitions; the applicable definition depends upon the context
in which the word is used." State ex rel. Kalal v. Circuit
Court for Dane County, 2004 WI 58, ¶49, 271 Wis. 2d 633, 681
N.W.2d 110. See also Noffke ex rel. Swenson v. Bakke, 2009 WI
10, ¶60, 315 Wis. 2d 350, 383, 760 N.W.2d 156 (Abrahamson, C.J.,
concurring) ("Dictionaries usually furnish more than one meaning
to a word, and a court has to be careful not to select a
friendly definition it likes from the many offered without
explaining its choice.").
9
The Open Meetings Law applies to a "governmental body,"
which is defined as "a state or local agency, board, commission,
committee, council, department or public body corporate and
politic created by constitution, statute, ordinance, rule or
order . . . ." Wis. Stat. § 19.82(1) (emphasis added).
8
No. 2015AP231.ssa
¶64 The applicable canon of statutory interpretation is
known by the Latin phrase "noscitur a sociis." Translated, the
phrase means "it is known by its associates." In other words,
the meaning of each word in the string of words of
"constitution, statute, ordinance, rule or order" may be known
from the words accompanying it.10
¶65 The words "constitution," "statute," and "ordinance"
describe formal, written documents adopted in accordance with
requirements set forth in law.
¶66 The Wisconsin Department of Justice's Wisconsin Open
Meetings Law Compliance Guide (Nov. 2015) at 2 corroborates that
the words "constitution," "statute," and "ordinance" refer to
legal documents under Wisconsin law, stating:
The words "constitution," "statute," and "ordinance,"
as used in the definition of "governmental body" refer
to the constitution and statutes of the State of
Wisconsin and to ordinances promulgated by a political
subdivision of the state.11
10
Although rules of interpretation serve the court, they
are not absolute rulers of a court's interpretation. Boardman
v. State, 203 Wis. 173, 176, 233 N.W. 556 (1930) (quoting Benson
v. Chicago, St. P., M. & O. Ry. Co., 77 N.W. 798, 799 (Minn.
1899)).
11
The word "ordinance" appears more than 300 times in the
Wisconsin Statutes. See, e.g., Wis. Stat. § 61.50 relating to
ordinances by villages, and § 62.11 relating to ordinances by
cities.
The court defined "ordinances" as follows in Wisconsin
Carry, Inc. v. City of Madison, 2017 WI 19, ¶25, 373
Wis. 2d 543, 892 N.W.2d 233: "[O]rdinances are municipal
legislative devices, formally enacted, that address general
subjects in a permanent fashion."
9
No. 2015AP231.ssa
¶67 The words "rule" and "order" can be interpreted in a
number of ways. Indeed the briefs offer several alternatives.12
12
Some briefs treat "rule or order" as one-and-the same;
other briefs address "order" more specifically. The brief of
the Department of Justice addresses only the word "order."
The parent's brief explains that a "rule or order" may
include "any directive, formal or informal, creating a body and
assigning it duties" that "come[s] from governmental bodies,
presiding officers of governmental bodies, or certain government
officials, such as county executives, mayors, or heads of a
state or local agency, department or division" (that is, "a
hierarchical top-down creation of a group"), but only if "the
possibility exists that the real decision-making will happen at
the committee meetings and be rubber-stamped by the governing
board." Plaintiff-Appellant-Petitioner's Brief and Appendix at
19-20 (internal citations and quotations omitted).
The School Board's brief seems to agree that a "rule" may
be formal or informal, but asserts that the creation must be
done through an "explicit delegation of authority." Defendant-
Respondents' Brief at 19.
The brief of the Wisconsin Freedom of Information Council
explains that the "[t]he terms 'rule or order' as used in
Section 19.82 have been broadly construed to include any
directive, formal or informal, that creates a body and assigns
it duties." The Council clarifies that this definition means
that "the committee need only have come into being through the
agency, participation, or authority of the [rule or order]."
Non-Party Brief and Appendix of the Wisconsin Freedom of
Information Council et al. at 5, 8.
The Wisconsin Counties Association argues in its brief that
the Attorney General's interpretation of "rule or order" that
includes informal directives is misplaced and that "the Court
should hold that a 'rule or order' is a directive adopted or
issued by an existing governmental body in the normal manner by
which it does its work. In all [sic] most, if not all,
situations this will be adoption by a majority vote. And, such
formal directives will be recorded in the minutes of the
governmental body." Non-party Brief of Wisconsin Counties
Association et al. at 11-12.
10
No. 2015AP231.ssa
¶68 It seems most reasonable to me to conclude that the
legislature would use the words in this string uniformly in
their legal meaning in Wisconsin law.13
¶69 The majority opinion disagrees. The majority
opinion's analysis of the word "rule," as well as its refusal to
consider the legislative policy section (see ¶¶47-48, 60-61,
supra) in interpreting the Open Meetings Law, is at odds with
the analysis this same majority of justices recently set forth
in Wisconsin Carry, Inc. v. City of Madison, 2017 WI 19, ¶¶19-
20, 373 Wis. 2d 543, 892 N.W.2d 233. In Wisconsin Carry, the
majority stated: "We are not merely arbiters of word
choice. . . . We find [plain] meaning in the statute's text,
context, and structure . . . ."
¶70 I recognize that the Department of Justice has,
without reference to the canon of noscitur a sociis or any other
authority or rationale, interpreted the phrase "rule or order"
in accordance with common and approved usage and as including
"any directive, formal or informal, creating a body and
assigning it duties."14 Unfortunately, the Department's
13
The word "rule" for purposes of state government is
defined in Wis. Stat. § 227.01(13) (including 72 exceptions). I
could find no definition of "rule" regarding local governmental
entities, but the word "rule" is used in the statutes too many
times to count relating to rulemaking by local governmental
entities.
14
Wisconsin Department of Justice's Wisconsin Open Meetings
Law Compliance Guide (Nov. 2015) at 2. See also Letter from
Assistant Attorney General Thomas C. Bellavia to Joe Tylka (June
8, 2005).
(continued)
11
No. 2015AP231.ssa
interpretation of the word "rule" does not, as is demonstrated
in the briefs, provide sufficient clarity and guidance.
¶71 Why would the legislature require anything less for a
"rule or order" than a formal written document promulgated by an
appropriate entity? The Department of Justice has an answer
that should be considered but it is not totally satisfactory.
The Department of Justice is concerned that requiring a formal
document would allow an entity to evade the Open Meetings Law by
adopting informal processes. The Department of Justice
explains:
If a formal order were required, the open meetings law
might be evaded by the creation of "informal" bodies.
Therefore, the interpretation that the open meetings
law does not require that the order be formal is
consistent with the statement by the Florida Supreme
Court that the sunshine law "should be construed so as
to frustrate all evasive devices."
78 Wis. Op. Atty. Gen. 67, 69 (quoting Wood v. Marston, 442
So. 2d 934, 940 (Fla. 1983)).
¶72 I strongly agree with the Department of Justice that
the consequences of an interpretation matter, and a consequence
like evasion of the Open Meetings Law should be considered and
No entity on the list of state or local bodies created by
resolution, rule, or order in the Wisconsin Department of
Justice's Wisconsin Open Meetings Law Compliance Guide (Nov.
2015) at 3 seems to me to resemble the Review Committee in the
instant case.
12
No. 2015AP231.ssa
prevented.15 But in an attempt to prevent evasion, the
Department of Justice's definition of "rule or order" raises two
basic, serious problems: The Department's definition is not
tethered to the text and context in which the words are used in
the Open Meetings Law and does not provide sufficient clarity or
guidance. There should be other ways to prevent evasion.
¶73 When I look at the text and context in which the words
"rule or order" are used, I conclude, in contrast to the
majority opinion, that the word "rule" is not defined by the
1992 version of the American Heritage Dictionary. The words
"rule or order" derive their meaning from Wisconsin law, not the
dictionary.
¶74 The third reason I disagree with the majority opinion
is that it concludes, majority op., ¶¶33-35, that Rule 361 and
the Handbook, taken together, created the Review Committee. I
agree with the court of appeals that the Review Committee was
not created by Rule 361, the Handbook, or any other rule.16
15
Consequences are an important consideration in
interpreting a statute. See, e.g., Wisconsin Carry, 373
Wis. 2d 543, ¶20 (if an interpretation results in "unreasonable
or absurd" consequences, that interpretation may be rejected);
Anderson v. Aul, 2015 WI 19, ¶114, 361 Wis. 2d 63, 862
N.W.2d 304 (Ziegler, J., concurring) (asserting that the plain
meaning analysis includes consideration of consequences of
alternative interpretations to avoid unreasonable results).
16
"Krueger is unable to direct us to any provision of
either authority under which the Review Committee was created."
State ex rel. Krueger v. Appleton Area Sch. Dist. Bd. of Ed.,
No. 2015AP231, unpublished slip op. at ¶18 (Wis. Ct. App. June
28, 2016).
13
No. 2015AP231.ssa
¶75 Here is how the Review Committee came into existence.
A parent requested Superintendent Allinger to create a new and
alternative course. Superintendent Allinger then told the
District's Assessment, Curriculum and Instruction (ACI)
Department to handle the parent's request. The ACI Department
head, Kevin Steinhilber, and his immediate subordinate, Nanette
Bunnow, created the Review Committee to address the parent's
request.
¶76 Steinhilber and Bunnow decided that the Review
Committee they created would consider the option of creating an
alternative course in response to the parent's request, conduct
an evaluation of the curriculum materials for the Communication
Arts I course to see if different materials could resolve the
parent's concerns, and review the course materials because a
Communication Arts I course materials review was overdue and
would allow Steinhilber and Bunnow to consider the impact that
the impending Common Core requirements would have on the
course's materials.17
¶77 Steinhilber and Bunnow adapted some of the procedures
set forth in Rule 361 and the Handbook for the creation and
operation of this Review Committee.
¶78 The Review Committee was a unique entity created to
respond to a unique concern.
¶79 The rule on which the majority opinion relies to
establish creation of the Review Committee is Rule 361 adopted
17
See Appleton Area School District Board of Education,
Meeting Minutes (Apr. 23, 2012).
14
No. 2015AP231.ssa
by the Appleton Area School District Board of Education. The
full text of this Rule and an excerpt from the Handbook are in
the record and fortunately are attached to the majority opinion.
Examining these documents, a reader cannot find a reference to
the Review Committee at issue in the instant case in Rule 361 or
in the Appleton Area School District Assessment, Curriculum and
Instruction Handbook.
¶80 Rule 361 delegates the School Board's legal
responsibility for all educational materials, that is, for
curriculum material selection and revision, to District
personnel, namely the District's ACI Department. Rule 361 does
not expressly create a committee that handles the selection and
revision of educational materials.
¶81 Pursuant to Rule 361, the ACI Department developed the
Appleton Area School District Assessment, Curriculum &
Instruction Handbook to guide its curriculum revision and
materials selection. The School Board approved the Handbook.
The Handbook delegates authority to the ACI Department to create
a committee that handles full curriculum reviews.
¶82 The Review Committee in the instant case was not a
full curriculum review committee and did not even review the
full curriculum for this one course. It reviewed the booklist
for this one course. In doing its work, the Review Committee
used some curriculum selection and review procedures that it
adapted from the Handbook.
15
No. 2015AP231.ssa
¶83 In addition to governing full curriculum review, Rule
361 also sets forth a process for handling parental objections
to educational materials.
¶84 Under Rule 361, a process is set up to address a
parent's complaint about educational materials. The complaint
would be given to a school official or staff member who is
required to try to resolve the issue informally. If informal
resolution is ineffective, Rule 361 creates an Educational
Materials Review Committee to address the parental concern and
sets forth a procedure for the Committee to follow. The
Educational Materials Review Committee's recommendation is
subject to the Superintendent's review before the School Board
ultimately decides whether or not to adopt the recommendation.
¶85 I agree with the court of appeals that the Review
Committee at issue in the instant case did not constitute a Rule
361 Educational Materials Review Committee and was not a
committee created by Rule 361 or the Handbook to conduct a full
curriculum review.18
18
"[H]ere, neither Board Rule 361.1 procedure was
applicable, because Krueger requested creation of an alternate
course altogether since, in his opinion, 'to review the existing
reading list would have been a waste of time.' There was no
established district procedure for requesting an alternative
course or responding to such a request. . . . [Steinhilber's and
Bunnow's creation of the Review Committee on their own
initiative] is similar to the second set of facts addressed in
the Tylka letter, at 4, wherein the attorney general's office
opined the open-meetings law would not apply." State ex rel.
Krueger v. Appleton Area Sch. Dist. Bd. of Ed., No. 2015AP231,
unpublished slip op. ¶¶20-21 (Wis. Ct. App. June 28, 2016).
16
No. 2015AP231.ssa
¶86 In sum, read carefully and liberally, neither Rule 361
nor the Handbook created the Review Committee at issue in the
instant case. The majority opinion seems to agree with my wrap
up but concludes that this omission in Rule 361 is not
meaningful, stating:
Although [Rule 361 and] the Handbook did not
specifically constitute [the Review Committee] by
name, [they] authorized review committees . . . to
exist and to exercise the Board's delegated authority
over curriculum review.
Majority op., ¶39.19
¶87 Fourth, the majority opinion, ¶41, states that it need
not address the issue of whether the Review Committee was
created by an order because it holds that it was created by
rule. The meaning of the word "order" was addressed by several
of the briefs in this court.20
¶88 The parent's brief submits the following regarding
government officials creating a governmental body by order :
19
The majority opinion relies on depositions to interpret
Rule 361. Is not the interpretation of Rule 361 a question of
law for this court, not for the deponents? The parties' briefs
in this court argue whether the parent's brief (and therefore
the majority opinion) relies on a proper interpretation of the
deponents' responses. This is a summary judgment case and the
circuit court concluded that no material facts are in dispute.
I note that the majority opinion states repeatedly that the
Review Committee was "authorized" by Rule 361, rather than using
the statutory language that the Rule "created" the Committee.
20
The court of appeals did not address this issue because
the parent did not raise it in the circuit court or in his
initial appellate brief. State ex rel. John Krueger v. Appleton
Area Sch. Dist. Bd. of Ed., No. 2015AP231, unpublished slip op.
¶¶22-26 (Wis. Ct. App. June 28, 2016). See majority op., ¶41.
17
No. 2015AP231.ssa
As a practical and legal matter, governing bodies of
public entities . . . cannot make every decision; they
must delegate their authority downward. In order to
exercise those delegated powers, government officials
may choose to create a committee to gather
information, make a recommendation, or even make a
decision. When an official does so, such committees
should be subject to the Open Meetings Law . . . .21
¶89 The School Board's brief agrees that a government
official can set up committees as governmental bodies included
within the Open Meetings law. The Board's position is that the
official must act within the scope of properly delegated or
vested authority. The Board's view is as follows:
[I]ndividual government officials, acting within the
scope of properly delegated authority, may create a
committee subject to Open Meetings Law by delegating
authority to the committee which has been lawfully
charged to the official by the governmental body, in
this case the school board. . . . Those committees
then, are to be treated as if they had been directly
charged by the school board to carry out those
functions. . . . The mere creation of a committee by
administrative officials is not enough. The requisite
conferral of power and authority is
required. . . . While directives from lower level
executive officials or employees may qualify, the
directive must have been delegated or redelegated. It
is not enough for a government official to simply
create a group to address a governmental function.
Rather, the governmental function must have been
delegated or redelegated by the governmental body.22
¶90 In its non-party brief in this court, the Department
of Justice asks the court to describe the creation of a
governmental body by order as follows:
21
Plaintiff-Appellant-Petitioner's Brief and Appendix at
43.
22
Defendant-Respondents' Brief at 35-37 (citations
omitted).
18
No. 2015AP231.ssa
A "governmental body" under Wis. Stat. § 19.82(1) can
be created by an "order" following a directive from an
existing governmental body or delegate that authorizes
the creation of a body and assigns it duties.
However, the definition of a "governmental body" is
rarely satisfied when groups of a governmental unit's
employees gather on a subject within the unit's
jurisdiction.23
¶91 The Department of Justice has also opined about an
"order" by a government official creating a governmental body
under the Open Meetings Law using somewhat different language,
as follows:
When an individual government official, acting within
the scope of properly delegated authority, creates an
advisory body, that body is treated as if it had been
created directly by the governmental body with
authority over that official.24
¶92 The Wisconsin Freedom of Information Council argues in
its brief that "order . . . must be broadly construed to include
any directive, formal or informal, that creates a body and
assigns it duties."25
¶93 The brief of the Wisconsin Counties Association asks
the court to hold that an official
can create a governmental body subject to the [Open
Meetings Law] only when the official is acting in the
stead of the extant governmental body. There must be
an actual, affirmative delegation of authority.26
23
Non-Party Brief and Appendix of the Wisconsin Department
of Justice Attorney General Brad D. Schimel at 13.
24
Letter from Assistant Attorney General Thomas C. Bellavia
to Joe Tylka (June 8, 2005).
25
Non-Party Brief and Appendix of the Wisconsin Freedom of
Information Council et al. at 5.
26
Non-party Brief of Wisconsin Counties Association et al.
at 15.
19
No. 2015AP231.ssa
¶94 In light of these divergent views and the facts of the
instant case, resolving the meaning of "order" is important. The
majority opinion's discussion of an "order" might have helped
provide clarity and guidance on this difficult question of the
meaning of "order."
¶95 The fifth reason that I do not join the majority
opinion is that its mandate is unclear.
¶96 The majority opinion clearly reverses the decision of
the court of appeals. Majority op., ¶2. It clearly holds that
the Review Committee met the definition of "governmental body"
under the Open Meetings Law and was subject to its terms.
Majority op., ¶2. And finally, the majority opinion remands the
cause "to the circuit court for further proceedings consistent
with this opinion."27 Nothing in the majority opinion tells the
circuit court what further proceedings are to be held consistent
with the opinion.
¶97 I agree with the parent's briefs on this topic. The
parent's brief states that if this court reverses the decision
of the Court of Appeals, this court would also conclude that the
Open Meetings Law applied to the Review Committee.28 According
to the parent, if the Open Meetings Law applied to the Review
Committee, it is undisputed that the School Board did not comply
with the Open Meetings Law. The parent's brief proposes that
27
Majority op., mandate line after ¶43.
28
Plaintiff-Appellant-Petitioner's Brief (John Krueger) at
54.
20
No. 2015AP231.ssa
this court remand the matter to the circuit court with
directions to determine costs and attorney fees and to enter
judgment in favor of the parent.29 I agree with this proposal
and believe that this is the proper interpretation of the
majority opinion's remand.
¶98 Furthermore, it is important to acknowledge that the
parent did not and does not request that the Review Committee's
actions be voided as a remedy under Wis. Stat. § 19.97(3).30
¶99 With regard to voiding any action taken at a meeting
held in violation of the open meetings law, the Department of
Justice has opined on this subject as follows:
Under Wis. Stat. § 19.97(3) a court may void any
action taken at a meeting held in violation of the
open meetings law if the court finds that the interest
in enforcing the law outweighs any interest in
maintaining the validity of the action. In the
present case, the Task Force's duties were simply to
provide recommendations . . . . The only action that
would be "voidable" would be the votes of the Task
Force members adopting specific recommendations.
Since these were only recommendations to the board and
the board has undoubtedly accepted some and rejected
others of those recommendations, it is unlikely that
any court would void any action taken by the Task
Force . . . .
Letter from Assistant Attorney General Alan Lee to District
Attorney Joseph F. Paulus, dated June 8, 2001.
29
Plaintiff-Appellant-Petitioner's Reply Brief (John
Krueger) at 14.
30
Plaintiff-Appellant-Petitioner's Reply Brief (John
Krueger) at 14, n.3.
21
No. 2015AP231.ssa
¶100 Because of the continuing need for clarity and
guidance in the meaning of the phrase "created by rule or order"
used in Wis. Stat. § 19.82(1), I suggest that school boards and
school officials consider the adoption of formal rules or orders
for the creation of governmental bodies by rule or order to be
governed by the Open Meetings Law. They should consider in
their various functions whether they are acting by rule or
order, whether they are creating a governmental body subject to
the Open Meetings Law, and whether they are clearly delineating
the functions and responsibilities of the entity they create.
Their designation is, of course, not dispositive for purposes of
the Open Meetings Law but would assist them, school employees,
and the public.
¶101 For the reasons set forth, I write separately.
¶102 I am authorized to state that Justice ANN WALSH
BRADLEY joins this concurring opinion.
22
No. 2015AP231.ssa
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