Wisconsin Voter All. v. Secord

1

2025 WI 2

Wisconsin Voter Alliance, et al., Petitioners-Appellants, v. Krishna Secord, Respondent-Respondent-Petitioner.

No. 2023AP36

Supreme Court of Wisconsin

January 17, 2025

Review of a decision of the Court of Appeals Walworth County Circuit Court (David W. Paulson, J.) No. 2022CV443

PROTASIEWICZ, J., delivered the majority opinion of the Court, in which Ann Walsh Bradley, Dallet, Hagedorn, and Karofsky, JJ., joined. HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ZlEGLER, C.J., joined.

OPINION

Janet C. Protasiewicz, J.

¶1 The Wisconsin Voter Alliance^[1] filed identical petitions for writ of mandamus against the registers in probate for 13 circuit courts around Wisconsin demanding access to Notice of Voting Eligibility forms ("NVE forms") under Wisconsin's public records law.^[2] See Wis. Stat. §§ 19.31 to 19.37 (2021-22).^[3] In the first case to reach the court of appeals, District IV issued a unanimous, published opinion holding that public records law and Wis.Stat. § 54.75 exempt NVE forms from disclosure, so the Alliance is not entitled to them. Wisconsin Voter Alliance v Reynolds, 2023 WI.App. 66, 410 Wis.2d 335, 1 N.W.3d 748. Shortly after, District II issued a split opinion in this case. The majority reached the opposite conclusion, holding that public records law and § 54.75 do not exempt NVE forms from disclosure, so the Alliance is entitled to them with possible redactions.

¶2 Secord asks this court to review two issues. First, was District II bound by Reynolds? Second, are NVE forms subject to public disclosure?

¶3 While this appeal raises an important issue regarding public records law, we do not reach it due to District II's patent violation of Cook v. Cook, 208 Wis.2d 166 560 N.W.2d 246 (1997). Instead, we hold that District II was bound by Reynolds. When the court of appeals disagrees with a prior published court of appeals opinion, it has two and only two options. It may certify the appeal to this court and explain why it believes the prior opinion is wrong. Or it may decide the appeal, adhering to the prior opinion, and explain why it believes the prior opinion is wrong. Id. at 190. District II violated Cook's directions. Therefore, we reverse and remand this case to the court of appeals with instructions to follow Cook.^[4]

I. BACKGROUND

¶4 This appeal concerns the petition for writ of mandamus that the Alliance filed against Kristina Secord, the register in probate for the Walworth County Circuit Court. The petition asserts that when a court finds an individual incompetent to vote, the clerk of court completes an NVE form indicating the individual's name, address, finding of incompetency to vote, and other personal information. The clerk sends the completed NVE form to the Wisconsin Elections Commission ("WEC"), which maintains a public database of registered voters in Wisconsin called Wis Vote. According to the Alliance, WEC is required to identify individuals who are ineligible to vote due to incompetency on WisVote, in order to prevent them from registering to vote and voting in elections.

¶5 The Alliance sought access to NVE forms that Secord "sent to the Wisconsin Elections Commission anytime." At a minimum, the Alliance wanted the names and addresses of the individuals declared incompetent to vote. Citing public records law, the Alliance claimed that it needed this information in order to prove WEC was not always updating WisVote to show individuals found incompetent to vote in Wisconsin elections.

¶6 Secord moved to dismiss the Alliance's petition for writ of mandamus for failure to state a claim upon which relief may be granted. Secord argued that Wis.Stat. § 54.75 exempts NVE forms from disclosure under public records law. Therefore, the Alliance was not entitled to a writ of mandamus compelling disclosure of the NVE forms.

¶7 The circuit court agreed with Secord and dismissed the Alliance's petition for failure to state a claim. The Alliance appealed to the court of appeals, District II.

¶8 By this point, the Juneau County Circuit Court had already dismissed an identical petition for writ of mandamus that the Alliance had filed against Terry Reynolds, the Juneau County register in probate. The Alliance had appealed to the court of appeals, District IV. In Reynolds, District IV held that the Alliance was not entitled to the NVE forms under public records law and § 54.75 and affirmed the Juneau County Circuit Court's dismissal of the Alliance's petition. The Alliance did not petition this court for review of Reynolds.

¶9 A few weeks later, in this case, District II held that the Alliance was entitled to the NVE forms under public records law and § 54.75, possibly with redaction. District II reversed the Walworth County Circuit Court's dismissal of the Alliance's petition for failure to state a claim. Secord filed a petition for review, which we granted.

II. ANALYSIS

¶10 To provide context for the legal issue we resolve, we begin with a summary of the guardianship and public records statutes at issue. Next we highlight the salient portions of District IV s opinion in Reynolds and District II's opinion in this case. Then we apply Cook.

A. Summary of Law

¶11 Chapter 54 of the Wisconsin Statues governs guardianships. It provides two ways for a circuit court to remove an individual's right to vote. If the circuit court conducts a Wis.Stat. § 54.44 hearing and determines that an individual is incompetent and in need of a guardian, the circuit court may make a specific, additional finding that "the individual is incapable of understanding the objective of the elective process" and lacks the capacity "to register to vote or to vote in an election." Wis. St AT. § 54.25(2)(c)1.g. Alternatively, the circuit court may make this specific finding in response to a petition for declaration of incompetence to vote. § 54.25(2)(c)1.g., (2)(c)4. Either way, the circuit court clerk must communicate this finding in writing "to the election official or agency charged under s. 6.48, 6.92, 6.925, 6.93, or 7.52(5) with the responsibility for determining challenges to registration and voting that may be directed against that elector." § 54.25(2)(c)1.g., (2)(c)4.

¶12 The circuit court documents its finding regarding an individual's competency to vote on an NVE form, also known as circuit court Form GN-3180. An NVE form contains the following information: the guardianship case number; the individual's name, address, and date of birth; the circuit court's determination that either the individual is not competent to register to vote or to vote in an election or that those rights have been restored to the individual; and the date of the determination.

¶13 Wisconsin law presumes access to government records. "[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." Wis.Stat. § 19.31. "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." Id.

¶14 The presumption of public access is not absolute. Access will be denied where there is a statutory, common law, or public policy exception to disclosure. Watton v. Hegerty, 2008 WI 74, 110, 311 Wis.2d 52, 751 N.W.2d 369 (citing Wis.Stat. § 19.36). "If a statutory or common law exception applies, the analysis ends and the records will not be disclosed." Democratic Party of Wisconsin v. DO), 2016 WI 100, ¶11, 372 Wis.2d 460, 888 N.W.2d 584. If neither applies, the custodian performs a public policy balancing test "to determine whether the public interest in nondisclosure outweighs the public interest in favor of disclosure." Id.

¶15 Section 54.75 is a statutory exception to public disclosure. It provides:

All court records pertinent to the finding of incompetency are closed but subject to access as provided in s. 51.30 or 55.22 or under an order of a court under this chapter. The fact that an individual has been found incompetent and the name of and contact information for the guardian is accessible to any person who demonstrates to the custodian of the records a need for that information.

Wis. Stat. § 54.75.

¶16 The parties agree that NVE forms are "court records." They dispute whether NVE forms are "pertinent to the finding of incompetency" under the first sentence of § 54.75.^[5] They also dispute whether the Alliance is entitled to the NVE forms under the second sentence of § 54.75, which authorizes disclosure of limited information to a person who demonstrates a "need" for it.

B. The District IV and District II Opinions

¶17 In Reynolds, the Alliance's initial brief presented this issue to District IV: "Whether [an NVE form] used to communicate to election officials or an agency the circuit court's determination of a person's competency to register to vote or to reinstate the right to vote is subject to disclosure under the Public Records Act."

¶18 In a unanimous, published opinion, District IV held that NVE forms are exempt from disclosure under the first sentence of § 54.75 because they are court records "pertinent to the finding of incompetency." Reynolds, 410 Wis.2d 335, 134. They are created during proceedings where a court determines incompetency for purposes of establishing a guardianship, and they contain information drawn directly from this proceeding. Id., ¶¶28-29.

¶19 According to District IV, it is immaterial that NVE forms are created after, and are not part of the underlying basis for the circuit court finding of incompetency. Many court records documenting a court's...