State of Wisconsin ex rel. Annette Flynn, Plaintiff-Respondent,
Kemper Center, Inc. and Gary Vaillancourt, Defendants-Appellants.
from a judgment of the circuit court for Kenosha County No.
2017CF141: CHAD G. KERKMAN, Judge.
Stark, P.J., Hruz and Seidl, JJ.
Kemper Center, Inc. and Gary Vaillancourt appeal a grant of
summary judgment to Annette Flynn, proceeding on behalf of
the State of Wisconsin, in Flynn's action to enforce
Wisconsin's Public Records Law, Wis. S . §§
19.31-.39 (2015-16). The sole issue in this case is whether
Kemper TAT  Center, Inc. is a "quasi-governmental
corporation" and therefore an "authority"
having custody of a record within the meaning of §
19.32(1). Based upon the undisputed facts, we conclude as a
matter of law that Kemper Center, Inc. is not a
quasi-governmental corporation subject to the Public Records
Law. Accordingly, we reverse the circuit court's grant of
summary judgment and remand with directions to dismiss the
Kemper Center, Inc. was incorporated on July 2, 1975, as a
Wisconsin nonstock corporation. The corporation was formed by
alumnae of Kemper Hall, a private all-girls boarding school
in Kenosha that had closed. According to Kemper Center,
Inc.'s articles of incorporation, its stated purpose was
to raise funds to allow the City of Kenosha or Kenosha County
to purchase and maintain the former Kemper Hall property. By
facilitating the property's preservation, Kemper Center,
Inc. sought to encourage the property's "use as a
park, recreational area, cultural center or other such use
open to, and for the benefit and enjoyment of, the general
A proposal for the City of Kenosha to purchase Kemper Hall
was defeated at referendum. Kemper Center, Inc. fared better
with Kenosha County, which purchased Kemper Hall in 1977. No
County funds were used for the purchase. Instead, the $225,
000 purchase price was paid with $117, 789 in funds raised by
Kemper Center, Inc. The remainder of the purchase price came
from two grants to the County. The Kemper Hall property was
conveyed directly to the County by the religious corporation
that had owned and operated the school. To induce the County
to purchase Kemper Hall, a nearby landowner, Janet Anderson,
also agreed to donate her home and adjoining five acres to
the County. The property currently consists of over seventeen
acres and contains a number of valuable, historic buildings,
including the Anderson Arts Center. We will hereafter refer
to the entire physical park premises as Kemper Park.
On the same day the County acquired Kemper Park, it executed
a lease agreement with Kemper Center, Inc. The lease was for
a term of twenty-five years to expire on August 24, 2002,
with a review of the lease occurring every five years. In
1998, the County and Kemper Center, Inc. renewed the lease
for an additional twenty-five years at the urging of Kemper
Center, Inc.'s then-president, who advised the County he
was having difficulty securing sponsor funds for a conference
center without a long-term lease in place.
Under the lease, Kemper Center, Inc. is to pay the County one
dollar annually in rent. In exchange, Kemper Center, Inc. has
the right to use Kemper Park as a "special purpose
area" dedicated to historic preservation, educational
and cultural programs, and individual and group recreational
activities. The lease permits Kemper Center, Inc. to retain
all fees, rental income, and other revenues generated at
Kemper Park, but it also makes Kemper Center, Inc.
responsible for "operational and maintenance
costs." Other relevant provisions of the lease will be
In 1976, the Internal Revenue Service designated Kemper
Center, Inc. a tax-exempt charitable and educational
organization. Kemper Park was officially designated as a
County park on November 3, 1977. The Kemper Hall building was
added to the National Register of Historic Places in 1976 and
to the Wisconsin Register of Historic Places in 1989. In
March 1982, Kemper Center, Inc. and the Kenosha County Park
Commission entered into a management agreement that provided
Kemper Center, Inc. with monthly funding for the maintenance
of Kemper Park, including expenses for employee salaries,
utilities and office expenses. The management agreement was
in effect between January and December 1982 and has not been
renewed, although the County continues to make annual grants
to Kemper Center, Inc. These grants have totaled nearly $3
million since 1978.
In November 2016, Kenosha County resident Annette Flynn
submitted to Kemper Center, Inc.'s president, Gary
Vaillancourt, a request for disclosures under the Public
Records Law. Flynn's request identified records in a
substantial number of categories, including documents
regarding Kemper Center, Inc.'s formation and tax-exempt
status, employee work records, meeting minutes, records
regarding certain events held at Kemper Park in 2016, and all
documents pertaining to "the status of Victoria's
Catering as [Kemper Center, Inc.'s] 'preferred
caterer' or 'in-house preferred
Kemper Center, Inc. denied Flynn's records request,
asserting that it was not a "quasi-governmental
corporation" subject to the Public Records Law.
See Wis. Stat. § 19.32(1). Flynn then commenced
the present action, alleging that Kemper Center, Inc. was
subject to the Public Records Law, was the custodian of the
records that she had requested, and had violated the law by
refusing to furnish those records. Flynn requested
declaratory and mandamus relief, as well as damages, costs
and attorney fees.
The parties filed cross-motions for summary judgment and
supporting affidavits. Following a hearing, the circuit court
granted summary judgment for Flynn, concluding that there was
no genuine issue of material fact and declaring Kemper
Center, Inc. is a quasi-governmental corporation subject to
the Public Records Law. Kemper Center, Inc. now appeals.
Additional relevant facts are included below.
We review a grant of summary judgment de novo. Tews v.
NHI, LLC, 2010 WI 137, ¶40, 330 Wis.2d 389, 793
N.W.2d 860. The summary judgment methodology is well
established. Id., ¶41. We first examine the
pleadings to determine whether claims have been stated.
Id. If so, we examine the moving party's
submissions to determine whether it has made a prima facie
case for summary judgment. Id. If a prima facie case
for summary judgment exists, we examine the opposing
party's affidavits and other proof to determine whether
summary judgment is appropriate. Id.
Summary judgment must be granted when there is no genuine
dispute as to any material fact and the moving party is
entitled to judgment as a matter of law. Wis.Stat. §
802.08(2). "The purpose of the summary judgment
procedure is to avoid trials when there is nothing to
try." Tews, 330 Wis.2d 389, ¶42. In
reviewing the parties' submissions, we draw all
reasonable inferences in the light most favorable to the
party against which summary judgment was granted. See Pum
v. Wisconsin Physicians Serv. Ins. Corp., 2007 WI.App.
10, ¶6, 298 Wis.2d 497, 727 N.W.2d 346 (2006). Whether
an inference is reasonable and whether more than one
inference may be drawn are questions of law. Id.
The sole issue in this appeal is whether Kemper Center, Inc.
is a "quasi-governmental corporation" within the
meaning of the Public Records Law. The Public Records
Law's purpose is to provide citizens with 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.
The law applies to "authorities" having custody of
a record, which includes a "quasi-governmental
corporation." Wis.Stat. § 19.32(1).
Determining whether Kemper Center, Inc. is a
"quasi-governmental corporation," and therefore an
"authority" under the Public Records Law, is a
matter of statutory interpretation. See Wisconsin
Prof'l Police Ass'n v. Wisconsin Ctys.
Ass'n, 2014 WI.App. 106, ¶3, 357 Wis.2d 687,
855 N.W.2d 715. Statutory interpretation is a question of law
that we review de novo. Id. We give statutory
language its common, ordinary and accepted meaning. State
ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI
58, ¶45, 271 Wis.2d 633, 681 N.W.2d 110. If the meaning
of a statute is plain, we ordinarily stop the inquiry.
The term "quasi-governmental corporation" is not
defined in the Public Records Law. However, in 2008, our
supreme court "set forth the circumstances when an
entity so resembles a governmental corporation, that it is
treated as a quasi-governmental corporation for purposes of
open meetings and public records laws." State v.
Beaver Dam Area Dev. Corp., 2008 WI 90, ¶7, 312
Wis.2d 84, 752 N.W.2d 295');">752 N.W.2d 295. In short, the court determined
that an entity is a quasi-governmental corporation "if,
based on the totality of circumstances, it resembles a
governmental corporation in function, effect, or
status." Id., ¶9.
Each case involving an alleged quasi-governmental corporation
must be decided on the particular facts presented.
Id., ¶8. Accordingly, courts must consider a
nonexhaustive list of factors (as set forth by the supreme
court), with no single factor being outcome determinative.
Id. The five factors that guided the court's
conclusion that the economic development corporation at issue
in Beaver Dam was a quasi-governmental corporation
are: (1) whether the entity's funding comes from
predominately public or private sources; (2) whether the
entity serves a public function; (3) whether the entity
appears to the public to be a government entity; (4) the
degree to which the entity is subject to government control;
and (5) the amount of access governmental bodies have to the
entity's records. Id., ¶62. We analyze
these factors, as well as other factors we deem relevant,
A "primary consideration" under the Beaver
Dam court's reasoning was that the economic
development corporation was funded exclusively by public tax
dollars or interest generated on those dollars. Id.,
¶10. The court deemed it a "significant
factor" that the corporation had cooperative agreements
with the City of Beaver Dam that required some combination of
annual contributions to the corporation from the city and
assignment of a large portion of the room tax the city
collected. Id., ¶64. The city also provided the
corporation with office space, supplies and clerical support.
Id. Thus, the court observed that, like a
governmental corporation, the economic development
corporation "receives the vast majority of its funds
from taxes borne by the public and receives basic support
from government sources." Id., ¶65.
The parties disagree about the extent to which the funding
factor militates for or against a conclusion that Kemper
Center, Inc. is a quasi-governmental corporation. The basis
for their disagreement is clear. Kemper Center, Inc. contends
that only the County's direct contributions constitute
public funding, while Flynn maintains that all "indirect
contributions" that Kemper Center, Inc. generates
through its programming and rentals should be attributed to
the County. We reject Flynn's argument in this regard.
To explain, Kemper Center, Inc. concedes it has historically
received donations from the County, although the parties
agree nothing compels the County to make such
grants. Still, County contributions have occurred
every year dating back to 1978, in varying amounts.
Initially, the County provided a small amount of money, but
starting in 1982, it established a regular pattern of
contributing between $50, 000 and $80, 000 to Kemper Center,
Inc. annually. After those amounts decreased between 2001 and
2003, starting in 2004 the County has earmarked at least
$100, 000 to go directly to Kemper Center, Inc. for its
operations. In addition, the County has budgeted
varying amounts for capital improvements to Kemper Park,
including $72, 000 for a parking lot and a carriage house in
1989, approximately $360, 000 for roof work between 1992 and
1998, and approximately $112, 500 to construct a bike path in
2013. Between 2010 and 2016, the County's contribution to
Kemper Center, Inc. remained static at $100, 000 for
operations and $50, 000 in capital costs.
A memorandum of understanding relating to a 1998 restoration
project states that the County and Kemper Center, Inc.
"agree that the primary objective of this project [is]
to establish the Kemper Center as a self[-]sustaining
entity." The memorandum continues: "As a
self-sustaining entity, the Kemper Center will fund operating
costs and routine building maintenance, renovation, and
restoration costs through rentals and user fees. The Annual
County subsidy shall be phased out as set forth in this
memorandum of understanding." The 2001-2003 reductions
in the County's contributions to Kemper Center,
Inc.'s operations fund occurred pursuant to the
memorandum, but it is undisputed that Kemper Center, Inc. has
not become self-sufficient.
Kemper Center, Inc. does not dispute that it has received
contributions from the County for operating and capital
expenses. Rather, it argues that these contributions were
only a small portion of its total budget. Kemper Center, Inc.
observes that direct contributions from the County toward its
operational costs, as well as County contributions toward
capital costs at Kemper Park, amounted to less than 20% of
Kemper Center, Inc.'s total income between 2006 and 2016,
and no more than 25% of its income during any given year. By
way of illustration, in 2008, Kemper Center, Inc.'s total
revenue was $1, 123, 717, which included a $100, 000 County
contribution to operations and a $150, 000 County
contribution for capital improvements at Kemper Park. Thus,
County contributions amounted to approximately 23% of Kemper
Center, Inc.'s total revenue that year, with the
remaining 77% of revenue being generated by events,
fundraising, grants, contributions, memberships, sales and
rentals. In 2010, Kemper Center, Inc. had total
revenue of $610, 210, including $150, 000 in County
contributions (approximately 25%). In 2015, Kemper Center,
Inc. generated $634, 188 in revenue, of which the County
directly contributed $150, 000 (approximately
Flynn does not dispute the amount of the County's direct
payments and capital contributions to Kemper Center, Inc.
Instead, she argues that in addition to those sums, all of
the revenue Kemper Center, Inc. generates from its leasehold
interest should be viewed as an "indirect
contribution" by the County to Kemper Center, Inc. Flynn
appears to reason that these sums should be imputed to the
County because the County would receive that revenue if it
directly operated Kemper Park. Flynn thus views the revenue
Kemper Center, Inc. generates from its use of Kemper Park as
akin to a government subsidy or assignment. By this measure,
Flynn estimates that County "funding" accounts for
between 65% and 87% of Kemper Center, Inc.'s total
revenue over each of the last five years.
We disagree with Flynn that all revenue Kemper Center, Inc.
generates from its use of the leased premises should be
imputed to the County for purposes of determining the degree
of County funding. It is undisputed that Kemper Center, Inc.
is the County's tenant. A landlord typically has no claim
to the revenue generated by a tenant without a specific
provision in the lease. See Brenner v. Amerisure Mut.
Ins. Co., 2017 WI 38, ¶48, 374 Wis.2d 578, 893
N.W.2d 193 (observing that a lessee's purpose for
entering into a lease is to "obtain possession of that
property and to put it to whatever use may be desirable, so
long as it conforms to the terms of the tenancy").
Moreover, Flynn's theory presupposes that if Kemper
Center, Inc. was to vacate the premises, the County would
have some obligation to assume its duties and operations or,
at a minimum, would choose to do so. Neither of these results
necessarily follows, either as a matter of logic, law, or
from the summary judgment record. Logically, the property
is the County's and, as the owner, the County is
presumed to have the right to use the property as it wishes
should the lease terminate (including shutting Kemper Park
down entirely). Legally, Flynn has not presented any evidence
demonstrating the County has assumed any obligation to
operate Kemper Park upon the termination of Kemper Center,
Inc.'s tenancy, or even that it might do so. ...