AWSA Joins As AMICUS In Supreme Court's Review of Open Meetings Case

by Malina Piontek, Attorney, LLC

In light of the very real impact that a ruling by the Wisconsin Supreme overturning the Court of Appeals decision in Krueger v. Appleton School Districtwould haveon AWSA’s members,AWSA has joined with several other groups as an amicus in support of the Appleton Area School District (AASD). A motion for leave to file an amicus brief was filed on behalf of the amici on December 14, 2016, and was immediately granted. The amicus brief is due December 28, 2016, and it is expected that the Supreme Court will hear oral arguments on the case on February 15, 2017. 

The two specific issues to be decided by the Supreme Court are: 1) whether a formal committee, created by school district officials, pursuant to school district policies, in order to carry out school district functions, is a “governmental body” subject to the open meetings law; (Wis. Stat. § 19.82(1)) and 2) whether, if the committee is a “governmental body,” it met in violation of the open meetings law.

The Open Meetings Law

The state’s open meetings law declares that: “In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state 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.” In order to advance this policy, the open meetings law requires that “all meetings of all state and local governmental bodies shall be publicly held in places reasonably accessible to members of the public and shall be open to all citizens at all times unless otherwise expressly provided by law.” Thus, there is a presumption that meetings of governmental bodies must be held in open session, although there are some exemptions allowing closed sessions in specified circumstances where necessary to protect the public interest. The policy of the law dictates that governmental bodies convene in closed session only where holding an open session would be incompatible with the conduct of governmental affairs. “Mere government inconvenience is . . . no bar to the requirements of the law.” State ex rel Lynch v Conta, 71 Wis.2d 662, 239 N.W. 2d 318 (1976)

The Facts Giving Rise to the Appeal

In July, 2011, as John Krueger’s son prepared to enter ninth grade, Krueger became concerned about the ninth-grade Communication Arts course curriculum. He and the parent group Valley School Watch asked the school district to offer an alternative freshmen Communications Arts course because they opposed references to suicide and sex in the young adult book, The Body of Christopher Creed. The school board refused to offer an alternative course, in part because the book was not required reading for the class. Students could choose which books they wanted to read. Furthermore, concerned parents could opt their children out of reading a book they considered inappropriate.

The superintendent directed two other administrators to respond to Krueger’s request. The administrators tasked with responding to the request formed a committee which reviewed the books listed for use in the Communications Arts course. Community members had the opportunity to submit feedback on the works, and 33 did, the school district reported.

The Review Committee was comprised of 17 district administrators, teachers, and staff. They read approximately 93 fiction books, assessed their suitability to meet the course’s curricular needs and forwarded a recommended list of 23 books to the school board. In the course of considering the books, the Review Committee held nine meetings between October, 2011 and March, 2012. The district did not open the meetings to the public because it did not believe the Review Committee was subject to the open meetings law based on the advice of legal counsel.  Therefore, each of those meetings was held without notice to the public and was closed to the public.

On Krueger’s behalf, the public-interest law firm, Wisconsin Institute for Law and Liberty (WILL) filed a lawsuit, alleging that the school board violated the open meetings law by failing to give notice of, and excluding the public from, the meetings. Since district leaders used board policy and its handbook to create the committee, it was "created by a rule or order" under state law, and its meetings, therefore, were subject to the open meetings law, Krueger and WILL argued. They further argued that under Wisconsin law, any committees created by a rule or order are subject to the state's open meetings law, which means members of the public must be able to attend committee meetings, and dates, times and locations must be posted in a public place. Therefore, the issue in this case was whether the Review Committee was “created by a rule or order” of the school board.

A November 2015 open meetings law compliance guide issued by the Attorney General's Office notes that the definition of "governmental body" is "broad enough to include virtually any collective governmental entity, regardless of what it is labeled." And the Attorney General's Office has said previously that any committees set up to in response to parental objections to educational materials are subject to the law.

However, rather than relying on the Attorney General’s guidance, both the Outagamie County Circuit Court and the Wisconsin Court of Appeals sided with the school district in deciding that the review meetings did not have to be open to the public, reasoning that the committee was not a governmental body.

The Wisconsin Court of Appeals ultimately concluded that the administrators formed the Review Committee on their own initiative, and also broadened the scope of the Committee's review on their own initiative. Moreover, the Superintendent merely asked them to respond to Krueger’s request and was not further involved in developing any process. Therefore, the facts did not support a finding that the Review Committee was “created by rule or order” and its meetings were not subject to the open meetings law.

WILL appealed the decision to the Supreme Court. Many were surprised that the Supreme Court accepted the case for review, believing that the Court of Appeals ruling was correct.

Various Organizations Support the Parties as Amicus

Amicus is short for amicus curiae which literally means “friend of the court.” Amicus briefs are legal documents filed in appellate court cases by a non-litigant (i.e., amicus) with a strong interest in the subject matter. The briefs advise the court of relevant, additional information or arguments that the court might wish to consider.

AWSA has joined as an amicus along with the 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, Wisconsin Association of School District Administrators, and the Wisconsin School Administrators Alliance. Members of all of these organizations interact with the open meetings law on a regular basis, and therefore, have an interest in the outcome of the case.  

On the other hand, the Wisconsin Broadcasters Association has filed an amicus brief alongside the Wisconsin Newspaper Association and Wisconsin Freedom of Information Council supporting the parents in the case. The organizations allege that if the Court of Appeals’ interpretation stands, “governmental bodies could carry out their duties outside the purview of the public by simply relegating their work to unaccountable committees.”

The decision in this case could have a significant impact on what kinds of governmental bodies are required to post and conduct meetings in open session. Considering the number of meetings AWSA’s members organize, chair and facilitate on even a weekly basis, we will keep you updated on the outcome of the case. 

*This article was written by Attorney Malina Piontek, AWSA’s Level I Legal Services Provider. You may direct your Level I call-in questions to Malina at 608-497-3037. You may email her at [email protected]. The views expressed herein are exclusively those of Ms. Piontek. This article was designed to provide you with general authoritative information and with commentary as a service to AWSA members. It should not be relied upon as legal advice. You are encouraged to contact your district legal counsel should you require legal advice regarding this topic. 

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