Open-records lawsuit against Racine should not have been secret or been dismissed, rules Wisconsin appeals court

From JSOnline:

Bruce Vielmetti, Milwaukee Journal Sentine

Racine Common Council member Sandra Weidner talks to open records advocate Harry Wait as she appeared in a Racine County court to face the city attorney's request that she be sanctioned for discussing her own open records lawsuit that a judge ordered completely sealed from the public. (Photo: Mike De Sisti, Milwaukee Journal Sentinel)

A lawsuit against the City of Racine not only shouldn't have been entirely hidden from the public, it should not have been dismissed, the Court of Appeals ruled Wednesday.

The ruling means that the open records crusader who brought the case in 2017, and who suffered a contempt finding for trying to bring it to light, still has a chance to recover some of her legal costs.

The court's summary disposition is merely the latest wrinkle in a case that was completely missing from court records at its start in 2017 until the Milwaukee Journal Sentinel reported its existence in 2018.

Then-Ald. Sandy Weidner filed an open records action in November 2017 after her requests for materials presented by the city attorney at an executive committee meeting in August were repeatedly denied.

She says the presentation focused on her emails and suggested she had broken confidentiality rules, which she disputed, and persuaded the committee to seek an advisory opinion for the city's ethics board. Weidner was running for mayor at the time.

Racine County Circuit Judge Eugene Gasiorkiewicz first sealed the entire matter, then dismissed Weidner's petition and refused to accept her amended petition a few months later.

By then, some — but not all — the materials Weidner had sought had been distributed to the city's council members.  Gasiorkiewicz determined everything else was properly exempt from disclosure under the open records law. Weidner appealed.

Racine County Circuit Judge Eugene Gasiorkiewicz presides as Racine Common Council member Sandra Weidner appeared in a Racine County court. (Photo: Mike De Sisti/Milwaukee Journal Sentinel)

After open government and media groups successfully intervened in the case in 2018, the District II Court of Appeals ordered Gasiorkiewicz to reexamine all the materials, and much of it was finally unsealed early last year.  

On Wednesday, the three-judge panel found that Gasiorkiewicz erred in rejecting Weidner's February 2018 amended petition, since she has a statutory right to file one within six months of the original. It sent the case back to circuit court. The appeals court judges participating in the ruling were Mark Gundrum, Paul Reilly and William Brash, who is a member of the neighboring Milwaukee-based District 1 Court of Appeals.  

Racine City Attorney Scott Letteney referred a reporter's questions about the decision to Milwaukee lawyer Michael J. Cohen, who did not return a call about the case.

Michael Cohen, a Milwaukee attorney representing the city attorney in the matter, appears as Racine Common Council member Sandra Weidner appeared in a Racine County court in Racine on Tuesday to face the city attorney's request that she be sanctioned for discussing her own open records lawsuit that a judge ordered completely sealed from the public. (Photo: Mike De Sisti, Milwaukee Journal Sentinel)

Bill Lueders, president of the  Wisconsin Freedom of Information Council, which honored Weidner for her efforts last year, said though it was technically dismissed, her lawsuit prompted the records' disclosure, and she should be awarded her legal fees under the open records law.

"I"m sorry it's taken the appeals court so long to make this ruling, but it's good that it did," Lueders said.

Weidner's attorney, Mark Hinkston, said that's probably jumping the gun a little bit.

"We're not necessarily at that point yet," he said. "We're almost back at square one, procedurally." He said it was unclear Wednesday whether the original amended petition would not just be deemed accepted. 

Hinkston said he would explore options but that it "would be nice if the city would recognize, from a cost-effectiveness measure, that it's not prudent to continue litigating when the parties can likely sit down and mediate and get this resolved."

The Journal Times in Racine has reported that Cohen's law firm has billed the city more than $75,000 for work related to Weidner's lawsuit.

Wednesday's ruling came two days after Weidner attended her final council meeting, in person, while most of the council met via video conference.  

Ald. Sandy Weidner at her last meeting of Racine Common Council on Monday. Other members were attending remotely. (Photo: Hot Government)

"For 20 years I sat in that chair," she said. "I'd be damned if I was going to sit in my living room for my final meeting."

Weidner, 68, said she filed her open records lawsuit because she felt the city council made a big mistake in granting the city attorney's request for an ethics review of her emails based on his super-expansive view of what constitutes attorney-client privilege.

"If the city attorney could do what he did, council would become irrelevant, by their own hand," she said Wednesday. "Regardless of appeal, the damage is done.

"I'm leaving the council an empty shell. It's very sad. We had a strong council, weak mayor, and now its the exact opposite," she said. "I think lots of the aldermen don't understand, and just want to go along and enjoy the title."

Contact Bruce Vielmetti at (414) 224-2187 or bvielmetti@jrn.com. Follow him on Twitter at @ProofHearsay.

From: https://www.jsonline.com/story/news/local/wisconsin/2020/04/22/racine-open-records-lawsuit-reinstated-wisconsin-appeals-court/3003311001/