State of Wisconsin ex rel. John Krueger, Plaintiff-Appellant-Petitioner,
Appleton Area School District Board of Education and Communication Arts 1 Materials Review Committee, Defendants-Respondents.
Argument: February 15, 2017
OF A DECISION OF THE COURT OF APPEALS Reported at 370 Wis.2d
787, 882 N.W.2d 870 (2016 - Unpublished)
of a decision of the Court of Appeals. Reversed and cause
Court Outagamie County, L.C. No. 2013CV868 Vicki L. Clussman
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.
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.
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.
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.
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.
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 with the open meetings law. The Outagamie County
circuit courtgranted 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 We now review the unpublished decision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 appealsthat affirmed the circuit
court's grant of summary judgment.
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). 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 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).
We begin by setting forth the relevant factual background
surrounding the District's rules governing curriculum
review and the formation and operation of
CAMRC. 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.
District's Rules Governing Curriculum Review
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, which recognized that the Board,
"as the governing body of the 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
"AC I Department") and presented to the Board for
approval. The Board had voted to adopt the Handbook on
January 13, 2003.
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. Rule 361 did not prohibit the ACI
Department from revising the Handbook or modifying Handbook
procedures to fit different situations. 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
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. As the Board and CAMRC
explained in their responses to Krueger's discovery
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. . . . [Ultimately, ] the curriculum
recommendations are presented to the Board of Education for
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
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.
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]
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 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
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.
Krueger's Request and the Formation of CAMRC
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.
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.
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
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. 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, "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),
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
Library Media Specialist, and one high school principal.
Bunnow herself served as chair of the committee.
Functions and Operation of CAMRC
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.
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
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 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?
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?
In short, every school official involved in the process
(including the Board, the Superintendent, and Steinhilber and
Bunnow) understood CAMRC to have been extant 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
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.
On July 29, 2013, Krueger filed a complaint in Outagamie
County circuit court, alleging violations of the open
meetings law. The Board and CAMRC moved for
summary judgment, and the circuit court granted their motion.
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.
Krueger petitioned this court for review, which we granted on
October 11, 2016.
STANDARD OF REVIEW
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.
Definition of a "Governmental Body"
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.
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).
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,
 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.
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. § 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)
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, 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.") .
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 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 policymaking 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.
CAMRC Was a "Governmental Body"
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 3 61 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 form review
committees that was delegated to them by Rule 361 and the
CAMRC Was a "Committee"
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).
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
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 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 ...