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State, ex rel. Krueger v. Appleton Area School District Board of Education

Supreme Court of Wisconsin

June 29, 2017

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.

          Oral Argument: February 15, 2017

         REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 370 Wis.2d 787, 882 N.W.2d 870 (2016 - Unpublished)

         REVIEW of a decision of the Court of Appeals. Reversed and cause remanded.

         Circuit Court Outagamie County, L.C. No. 2013CV868 Vicki L. Clussman Judge

          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.


         ¶1 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 court[1]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 appeals[2]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 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 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.

         ¶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 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. . . . [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 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. 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, "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 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 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 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.

         ¶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.


         ¶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.


         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]

         ¶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. § 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, 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 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.

         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 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 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 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 ...

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