State Ex Rel. Schultz v. Wellens
State Ex Rel. Schultz v. Wellens
Opinion of the Court
Cindy Schultz and the Wisconsin Society for the Prevention of Cruelty to Animals (WSPCA) appeal from the trial court judgment quashing their petition for an alternative writ of mandamus that had sought to compel the Wisconsin Humane Society and its executive director, Victoria Wellens, to disclose public records of dog impoundment and disposition. Because we conclude that "public record[s]" of dog impoundment and disposition under § 174.046(4), Stats., must be made available for disclosure to the public, we reverse.
On May 8, 1995, the WSPCA submitted an open records request under § 19.35, Stats., of the Wisconsin
"A motion to quash a writ of mandamus is treated as a motion to dismiss a complaint." Mazurek v. Miller, 100 Wis. 2d 426, 430, 303 N.W.2d 122, 125 (Ct. App.), cert. denied, 454 U.S. 896 (1981). Therefore, the "facts pleaded and all reasonable inferences from the pleadings must be taken as true, but legal conclusions and unreasonable inferences need not be accepted." Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis. 2d 723, 731, 275 N.W.2d 660, 664 (1979). In the instant action, the motion to quash was resolved entirely on the basis of statutory interpretation. We review a trial court's statutory interpretation de novo. Kwiatkowski v. Capitol Indem. Corp., 157 Wis. 2d 768, 774-775, 461 N.W.2d 150, 153 (Ct. App. 1990).
RECORDS. The officer or pound who is notified or to whom a dog is delivered shall keep a record of each dog, giving a description of the dog, the dates of its impoundment, if any, and the disposition of the dog. If the dog is kept by or released to a person the record shall include the name, address and date of delivery of the dog. This record is a public record.
(Emphasis added.)
The trial court concluded that because the Wisconsin open records law governs disclosure of public records, and because the Humane Society was not an "authority" required to disclose records under the open records law, disclosure was not required. On appeal, the WSPCA does not challenge the trial court's conclusion that the Humane Society is not an "authority" required to disclose under the open records law. The WSPCA argues, however, that the open records law must not be read to preclude disclosure of records the legislature had previously designated as "public record[s]" under § 174.046(4), Stats.
First, nothing in the open records law or its history suggests any legislative intent to abrogate existing law providing public access to public records. The legislature is presumed to know the relationship between new and existing statutes. Wood v. American Family Mut. Ins. Co., 148 Wis. 2d 639, 646, 436 N.W.2d 594, 597 (1989), overruled in part on other grounds, Matthiesen v. Continental Cas. Co., 193 Wis. 2d 192, 202, 532 N.W.2d 729, 733 (1995). The Wisconsin open records law, enacted in 1981, does not mention the dog impoundment records law, enacted in 1979. Such statutory silence indicates that the legislature did not
Second, while not explicitly referring to the dog impoundment records law, the open records law implicitly supports its continuing viability. Section 19.35(1), Stats., specifically provides that "[s]ubstantive common law principles construing the right to inspect, copy or receive copies of records shall remain in effect." In Wisconsin, under common law, the public has enjoyed the "right to inspect and copy public records." See Linda de la Mora, Comment, The Wisconsin Public Records Law, 67 Marq. L. Rev. 65, 66 (1983).
Accordingly, we reverse the judgment and remand this case to the trial court for entry of an order granting the WSPCA petition to compel disclosure of the
By the Court. — Judgment reversed and cause remanded with directions.
The respondents do not argue that the WSPCA failed to satisfy the criteria for mandamus except, of course, they implicitly contend that the WSPCA has no clear legal right to the
The Humane Society argues that the WSPCA waived this issue because, in the trial court, it sought disclosure under the open records law and argued that the Humane Society was an "authority" required to disclose. We disagree.
We note that this law review comment, as cited by the dissent, provides no support for the dissent's assertion; it does not even mention nonprofit corporations.
Although we conclude that public access is required under § 174.046(4), STATS., we read nothing either in that statute or in the open records law that would foreclose utilization of the open records law procedures for the production of the requested documents. In fact, we note that in the trial court the WSPCA conceded that it would "have to follow the procedures in Wisconsin's open records law."
Dissenting Opinion
(dissenting). I write separately because I cannot agree with the majority's conclusion in this case. The trial court correctly concluded that the Wisconsin open records law governs disclosure of public records and that because the Humane Society is not an "authority" required to disclose records under the open records law, disclosure was not mandated in this case. The majority acknowledges that Schultz does not challenge this conclusion on appeal. Schultz argues only that because § 174.046(4), Stats., (the dog impoundment records law) denominates the subject records as "public" that she is entitled to review them. I disagree.
As noted by the majority, § 174.046(4), STATS., was enacted two years before the open records law. The majority goes on to conclude that because the open records law does not mention the dog impoundment records law, it is presumed that the legislature did not intend to repeal or reduce the operation of this statute. I agree with this conclusion. I disagree, however, with the majority's conclusion that the records at issue here were subject to disclosure under the common law.
After the enactment of the open records law, more entities were required to disclose public records. At the current time, however, because the Humane Society is not an "authority," it is not required to do so. If, therefore, the Humane Society was not required to disclose its records under common law, and it is not required to disclose its records under current statutory law, I cannot conclude that simply because the dog impoundment statute labels the subject records "public" that they must be disclosed. Accordingly, I respectfully dissent.
Reference
- Full Case Name
- State of Wisconsin Ex Rel. Cindy Schultz and the Wisconsin Society for the Prevention of Cruelty to Animals, Petitioners-Appellants, v. Victoria Wellens, Executive Director of the Wisconsin Humane Society, and the Wisconsin Humane Society, Respondents-Respondents
- Cited By
- 3 cases
- Status
- Published