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Robert Zellner v. Herrick, et al., 2009 WI 80, on certification

Scope of review on certification; open records appeals

Click here for supreme court decision      Click here for certification

Issue/Holding:  ¶3        …  In this court’s standard order accepting the certification, we stated that “the appeal is accepted for consideration of all issues raised before the court of appeals.” See State v. Stoehr, 134 Wis. 2d 66, 70, 396 N.W.2d 177 (1986) (“When this court grants direct review upon certification, it acquires jurisdiction of the appeal, which includes all issues, not merely the issues certified or the issue for which the court accepts the certification.” (citing Wis. Stat. § 808.05(2) (1983-84))).

Analysis:  The court indeed resolves the appeal on a ground not raised by the certification (timeliness of the notice of appeal).

 Issue/Holding: A “record subject” has a “limited” right to seek to enjoin release of public records, under § 19.356, on the ground that his or her privacy interests outweigh the public’s right to record disclosure. If that effort is successful, the original requester may intervene for purpose of seeking appellate review. The requester then is treated as a party, so that the § 808.04(1m) time limit for filing an Open Records appeal is 20 days. The notice of appeal in this case was filed outside that time limit and the appeal therefore must be dismissed.

Analysis:  The sole dissenter, Justice Roggensack, probably has the better of the argument, but it hardly matters now. If, as an OR requester, you want to appeal an adverse decision under § 19.356, you had better do it within 20 days.

Summaries of this and similar cases are archived at:  Appellate Procedure – Supreme Court Review, Scope – Certification: Authority to Reach All Issues Raised Below/ Open Records – Appeals – Time Limits, Intervenor: 20 days