Wisconsin Professional Police Association, Inc. and

James J. Palmer,

�� Plaintiffs-Appellants,

�� v.

Wisconsin Counties Association and Mark O'Connell,

�� Defendants-Respondents.

Opinion Filed:	September 18, 2014
Submitted on Briefs:�	August 18, 2014
Oral Argument:�

JUDGES:	Lundsten, Higginbotham and Kloppenburg, JJ.
�� Concurred:
�� Dissented:

Appellant
ATTORNEYS:	On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Roger W. Palek and James L. Palmer, Madison.�

Respondent
ATTORNEYS:	On behalf of the defendants-respondents, the cause was submitted on the brief of Andrew T. Phillips, Daniel J. Borowski, and Patrick C. Henneger of Phillips Borowski, S.C., Mequon.� A nonparty brief was filed by Kendall W. Harrison and Jodi E. Jensen of Godfrey & Kahn, S.C., Madison, for Wisconsin Counties Association.

COURT OF APPEALS

DECISION

DATED AND FILED

September 18, 2014

Diane M. Fremgen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

Appeal No.�	2014AP249	Cir. Ct. No.� 2013CV1303
STATE OF WISCONSIN�			IN COURT OF APPEALS



Wisconsin Professional Police Association, Inc. and James J. Palmer, �� Plaintiffs-Appellants, �� v. Wisconsin Counties Association and Mark O'Connell, �� Defendants-Respondents.

�� APPEAL from an order of the circuit court for Dane County:� richard g. niess, Judge.� Affirmed.�

�� Before Lundsten, Higginbotham and Kloppenburg, JJ.

�1�� KLOPPENBURG, J. Wisconsin Professional Police Association, Inc. and James Palmer (the Police Association) appeal an order granting the motion filed by Wisconsin Counties Association and Mark O�Connell (the Counties Association) for summary judgment and dismissing the Police Association�s complaint.� The Police Association�s complaint sought a declaration that the Counties Association is subject to Wisconsin�s public records law[1] and that the Counties Association violated that law, a mandamus order directing the Counties Association to produce records requested by the Police Association pursuant to that law, and an award of attorney�s fees, damages, punitive damages, and costs.� The circuit court dismissed the complaint on the ground that the public records law imposes record inspection and production duties only on an �authority,� as defined in Wis. Stat. � 19.32(1), and the Counties Association, as an unincorporated association, �quite clearly does not fall within� that definition.� We agree with the circuit court�s analysis and affirm.

DISCUSSION

�2�� The relevant facts are undisputed.� The Police Association is a not-for-profit labor organization, and the Counties Association is an unincorporated not-for-profit association.� The Police Association submitted to the Counties Association two requests for records pursuant to the public records law.� The Counties Association responded that the public records law �does not apply to the Wisconsin Counties Association.�� The Police Association sued to enforce the public records law against the Counties Association.� The parties filed cross-motions for summary judgment.� As noted above, the circuit court granted the Counties Association�s motion for summary judgment and dismissed the Police Association�s complaint.� The Police Association appeals, contending that the circuit court erroneously �held that [the Counties Association] does not constitute an �authority� for the purpose of Wisconsin�s� public records law.�

�3�� Determining whether the Counties Association is an �authority� under the public records law is a matter of statutory interpretation, which presents a question of law that we review de novo.� State v. Beaver Dam Area Dev. Corp., 2008 WI 90, �28, 312 Wis. 2d 84, 752 N.W.2d 295.� �[S]tatutory interpretation �begins with the language of the statute.� If the meaning of the statute is plain, we ordinarily stop the inquiry.�� State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, �45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoted source omitted).�

�4�� The Police Association must show that the Counties Association is an �authority� as defined by Wis. Stat. � 19.32(1), in order for the Counties Association to be subject to the state�s public records law.� See Beaver Dam, 312 Wis. 2d 84, �30 (�The state public records laws apply to authorities.�).� Wisconsin Stat. � 19.32(1) defines �authority� as follows:

As used in ss. 19.32 to 19.39:

(1) "Authority" means any of the following having custody of a record: a state or local office, elective official, agency, board, commission, committee, council, department or public body corporate and politic created by the constitution or by any law, ordinance, rule or order; a governmental or quasi-governmental corporation except for the Bradley center sports and entertainment corporation; a special purpose district; any court of law; the assembly or senate; a nonprofit corporation which receives more than 50% of its funds from a county or a municipality, as defined in s. 59.001 (3), and which provides services related to public health or safety to the county or municipality; a university police department under s. 175.42; or a formally constituted subunit of any of the foregoing.

�5�� The Police Association argues that the Counties Association comes within the statutory definition of �authority� because the Counties Association fits the statutory category �quasi-governmental corporation.�� Indeed, although Wis. Stat. � 19.32(1) contains other categories, it is undisputed that the only question before us with respect to the definition of �authority� in � 19.32(1) is whether the Counties Association is a �quasi-governmental corporation.�

�6�� According to the Police Association, the circuit court erred in too strictly interpreting the statutory language so as to conclude that the Counties Association cannot be a �quasi-governmental corporation� simply because it is not a corporation as that term is used in the Wisconsin statutes.� The Police Association asserts that �[t]o infer from the Wis. Stat. � 19.32(1) definition of �authority� that the term �corporation� can only mean one that is established under Chapter 180 of the Wisconsin State Statutes ... would be in error, and would neglect the term�s general meaning, along with the applicable judicial precedent.�� The Police Association points to the �general meaning of �corporation�� in the 1990 edition of Black�s Law Dictionary��an artificial person or legal entity created by or under the authority of the laws of a state��and to the decision in Beaver Dam�which applied a totality of circumstances test to determine whether a private corporation was a �quasi-governmental corporation,� 312 Wis. 2d 84, ��44-46�and argues that we should apply that same test to find that the Counties Association is a �quasi-governmental corporation� here.�

�7�� We reject both the Police Association�s reliance on a dictionary definition of �corporation� and its reliance on Beaver Dam.

�8�� We reject the Police Association�s argument based on a dictionary definition of �corporation,� because it is undeveloped.� See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (court of appeals need not consider undeveloped arguments).� Moreover, the definition on which the Police Association relies seems entirely consistent with how Wisconsin defines corporation under state law, in Wis. Stat. chs. 180-183, and the Police Association does not assert that the Counties Association was �created by or under the authority of� that law.[2]��

�9�� We reject the Police Association�s argument based on the decision in Beaver Dam, because it is not supported by any language in that decision.� In Beaver Dam, the court held that �a quasi-governmental corporation is a corporation that resembles a governmental corporation,� and applied the totality of circumstances test to determine whether the private Beaver Dam Area Development Corporation in that case was �quasi-governmental.�� 312 Wis. 2d 84, ��3, 9, 44-45.� While the court also referred to the issue as being whether an �entity is a quasi-governmental corporation,� see, e.g., id., ��7, 9, 45, the Police Association points to no language in that decision that indicates that the court intended to extend the reach of either its holding or Wis. Stat. � 19.32(1) to embrace entities that are not corporations.� As the Counties Association notes, �to be a �quasi-governmental corporation,� an entity must first be a �corporation,�� and the Counties Association is not a corporation.��

�10�� In sum, the Police Association does not persuade us that its dictionary definition of �corporation,� or the Beaver Dam court�s application of the totality of circumstances test to a corporation, help it overcome the fact that in this case the Counties Association is not a corporation under Wisconsin law.��

�11�� The Police Association asserts that it is �illogical to conclude that the Legislature intended to create a loop-hole� for associations like the Counties Association.� However, to hold that the term �governmental or quasi-governmental corporation� in Wis. Stat. � 19.32(1) includes an entity that is not a corporation would effectively rewrite the statute to eliminate the legislature�s use of the word �corporation.�� That is the job of the legislature, not the courts.� See State v. Briggs, 214 Wis. 2d 281, 288, 571 N.W.2d 881 (Ct. App. 1997) (noting that �[t]he role of the legislature is to write the law�).

�12�� Accordingly, we conclude that the circuit court properly dismissed the Police Association�s public records complaint because the Counties Association is not a corporation and, therefore, not an �authority� by virtue of being a �quasi-governmental corporation� under Wis. Stat. � 19.32(1).

�13�� In the alternative, the Police Association argues that the Counties Association constitutes a �governmental body,� a term used in a different statute, namely Wis. Stat. � 19.82 of the open meetings law.� According to the Police Association, the Counties Association should be subject to the public records law on that basis.� The Counties Association responds that the Police Association has forfeited this argument because the Police Association raises it for the first time on appeal.� See County of Columbia v. Bylewski, 94 Wis. 2d 153, 171, 288 N.W.2d 129 (1980) (�This court has held that as a general rule it will not consider issues not raised in the trial court but raised for the first time on appeal.�).� Our review of the record indicates that the Police Association did not raise this argument before the circuit court.� The Police Association appears to concede the point, replying that whether the Counties Association is a �governmental body� is a question of law, as is whether the Counties Association is a �quasi-governmental corporation,� and both questions relate to the overriding issue of whether the Counties Association is subject to the public records law.� The Police Association urges us to address this new argument �in furtherance of that overriding issue.�

�14�� We decline to do so here.� Because the Police Association did not raise this argument before the circuit court, the Police Association has forfeited its right to raise this argument here.� See State v. Rogers, 196 Wis. 2d 817, 829, 539 N.W.2d 897 (Ct. App. 1995) (�[T]he appellant [must] articulate each of its theories to the trial court to preserve its right to appeal.�).� Moreover, even if we were to address the merits and resolve the issue, the Police Association does not persuade us.� In particular, the Police Association does not explain why a statute and informal opinions of the Attorney General which address open meetings �ought to be instructive� when the topic here is public records.�

CONCLUSION

�15�� Because the Counties Association, as an unincorporated association, is not an �authority� under Wis. Stat. � 19.32(1), the Police Association has failed to establish that the Counties Association is subject to Wisconsin�s public records law.� We therefore affirm the circuit court�s dismissal of the Police Association�s complaint seeking to enforce the public records law against the Counties Association.

�� By the Court.�Order affirmed.

[1] Wis. Stat. � 19.31 (2011-12) et seq.� All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.

[2] Cf. Wisconsin Stat. � 184.01(2), which defines �nonprofit association� as �an unincorporated organization.�

Case No.:	2014AP249
Complete Title of Case: