Weidner vs City of Racine 4 Unsealed Documents

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FILED FILED 04-13-2018 01-16-2019 Clerk Circuit Court Clerk of of Circuit Court Racine County Racine County

2017CV001644 STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY 2017CV001644 ______________________________________________________________________________

SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent. __ ______________________________________________________________________________

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ENT NT’’S REPL PETITIONER’S SUR-REPLY BRIEF TO RESPONDENT’S REPLY BRIEF LAIMS REGARDING PRIVILEGE CLAIMS _ ____________________ __________________ _____________________________________________ _______________________________ DUCTION INTRODUCTION

The City feigns fear that a finding ding g that the subject communica communicat communications are not privileged would

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eviscerate the privilege and d undermine the City’ City City’s ’s ability tto function. (p. 39).

The City’s Reply

Brief continues too reflect either an indifference indiffer n to, or failure to recognize, this unique aspect of hee City’s “law business how much of the business” is conducted.

he City’s broad interpretation of attorney-client privilege in the municipal Despite the context, the privilege is rarely invoked to hinder the free and open exchanges that often occur between alderpersons and the City Attorney when they meet to conduct the City’s business. As such, the entire City Council and other City leaders regularly obtain the benefit of the City Attorney’s legal services via public (open) interaction in many meetings covering innumerable topics.

The subject emails are byproducts of the open process that moors much of the conduct of the City’s business.

Accepting the City’s invitation to blanket them with privilege would

contravene the law, ignore the policy of open government, and in effect carve out an open records exception for emails between the City Attorney and Common Council. The ensuing chilling effect 1

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would be a far greater threat to City function than what a decision otherwise would portend. For these reasons, as elaborated herein and in prior submissions, the Court should not accede to the City’s request that the documents be deemed privileged.

Argument Summary: The Substance Of The Subject Emails Is Not Unlike Communications Often Occurring During The Open Meeting Conduct Of The City’s Law Business. Therefore, It Would Be Unreasonable To Assume That, When The City Attorney And Alderpersons Communicated Via Email In The Subject Documents, There Would Be Any Reasonable Expectation Of Confidentiality Justifying Application Of The Attorney-Client Privilege.

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a outside law firm The City notes that the City Attorney’s Office is “dissimilar to that of an efined legal issues.” ((Resp. Reply, p. retained by a multitude of different clients for specific well-defined

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al client” nt” 8, n. 9). It asserts its role as lawyer for a “perpetual

the he Ci City wherein it “works for the

k.” (Reply Br., p. 8). In th City twenty-four hours a day, seven days a week.” that role, the City Attorney de the Mayor and Common Cou Co must be “proactive” and provide Council “with advice on legal matters

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ue course urse to the City.” (Id.).

(Id.). when presented in due

ner er has never denied the C Ci Petitioner City Attorney’s ubiquitous role in the conduct of City rations. ions. She con business and operations. concedes that the City Attorney and City have, as the City contends, y “an ongoing attorney-client relationship.” (Reply Br., p. 9). Contrary to what the City implies, Petitioner does not contend that City Attorney-initiated communications could never qualify as privileged; she contends that because of the unique context (municipal government), where there is less expectation of privacy and confidentiality (in view of the countervailing policy of openness), a municipal lawyer’s communications are to be viewed with a different (more discerning) scope.

Because it is the policy 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, …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

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otherwise expressly provided by law.” §19.81(1), (2), Wis. Stats. At such meetings, all discussion and action “shall be initiated, deliberated upon and acted upon only in open session except as provided in s. 19.85.” §19.83(1), Wis. Stats.

Thus, municipal business - when conducted by

meeting - is done with recognition of the duty to maintain a level of public transparency.

In Minneapolis Star & Tribune Co. v. Housing & Redevelopment Authority, 310 Minn.

313, 251 N.W.2d 620 (1976)[Exhibit A], the Supreme Court of Minnesota recognized an implied exception for attorney-client privilege in the meetings context in the narrow circumstances of

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xception “would “wo pending or prospective litigation. In doing so, it noted that the exception almost never pinion inion by a public body iin its capacity as a extend to the mere request for general legal advice or opinion

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public agency.” The Court stated:

ze too oo strongly that should this exception e We cannot emphasize be applied as public affairs, it will not no n be tolerated, for this court a barrier against public access to public mphasized that respect for and adherence ad has consistently emphasized to the First Amendment ntial to the continuation of oour democratic form of government. It is absolutely essential balan b will be upheld, however, if the balancing of these conflicting public policies dictatess the need for absolute confi confidentiality. The exception is therefore available fy y the concerns express expresse to satisfy expressed herein but is to be employed or invoked cautiously m in situations ations other o and seldom than in relation to threatened or pending litigation.

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There are very limited exceptions to the Open Meetings Law. Among the few exceptions, the City can go into closed session to confer with its legal counsel “who is rendering oral or written advice concerning strategy to be adopted by the body with respect to litigation in which it is or is likely to become involved.” § 19.85(1)(g), Wis. Stats.

There is obviously no exception for “mere request[s] for general legal advice or opinion by a public body in its capacity as a public agency.” Minneapolis Star, Id. In apparent recognition of this fact, the City allows and facilitates the City Attorney’s presence at, and involvement in, many City meetings involving a plethora of topics

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covering much of “all the law business in

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which the City is interested.” Sec. 62.09(12), Wis. Stats. Thus, he and his three colleagues (deputy and two assistants) are busy tending to all the various facets that comprise that mission. It is common knowledge that they on occasion will attend the meetings conducted by the City’s various boards and committees and the City Attorney frequently if not always attends Common Council and Committee of the Whole meetings.

Except in the rare circumstance when the City invokes the need to go into “closed session,” all City meetings

even when the City Attorney presents on an issue - are conducted openly. At

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p many of these meetings, the City Attorney or other attorneys from his office are present to provide privile the exact same “legal services” and “legal advice” that the City i contends ends is privilege privileged here.

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ted ed efforts to revise the City’s alcohol al a An example is the City Attorney-initiated licensing and wal practices and procedures. On July 26, 2017, during a alcohol license revocation/nonrenewal

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approximately approximately r 45 minutes, Atty. Letteney made an Committee of the Whole meeting of approxi ately 1 hr. ntation tation (with PowerPoint) on o the current system and “potential solutions” as well extensive presentation 1 ations tions to change the procedures. pro He and Assistant City Atty. Tran answered several as recommendations

questions of committee mittee members. mem

At the December 20, 2017 Committee of the Whole meeting, Atty. Letteney continued his presentation regarding the City’s alcohol licensing and alcohol license revocation/nonrenewal practices and procedures.2

Committee members were provided with an Agenda Briefing

Memorandum prepared by the City Attorney, proposed changes to the existing ordinances, and Proposed Policy Guidelines for Licenses Related to Alcohol Beverages. (All of these documents are public).

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http://cityofracine.granicus.com/MediaPlayer.php?view id=1&clip id=249 [Minute 5:05 – 26:35; 52:00 – 1:06:10].

2 http://cityofracine.granicus.com/MediaPlayer.php?view id=1&clip id=277

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Following Atty. Letteney’s 30-minute presentation,3 he and Asst. City Atty. Tran responded to several questions posed by Alderpersons for the remainder of the meeting. At a meeting of February 8, 2018, the City Attorney and Assistant City Attorney appeared before the Committee of the Whole to continue the discussion on the issues, answering questions from the Committee members and hearing from the public.4 In addition to giving attorney-initiated advice as Atty. Letteney did with the liquor license issue, oftentimes the City Attorney provides “legal services” and “legal advice” in public view and

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uary ary 17, 2018, the Committee of earshot at an alderperson’s specific request. For example, on Janu he position of Ci City ooff Racin Ra the Whole considered an alderman’s request that “that the Racine Mayor be a

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ess and benefits be adjusted accordingly.” acco part-time position and that the position's wages The City ting: “Alderman Perez asked aske me the duties of the Mayor Attorney began his presentation by stating:

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tor or and I can go through through those thos by law.”5 He thereafter provided an and the City Administrator extensive overview iew ew of the duties (citing law) law and answered Committee members’ questions. backdrop, backdrop one sees see a dichotomy: the City Attorney frequently communicates Against this ba with Ci City officials Cit in public meetings w business” in public

the client

in effect conducting much of the City’s “law

making extensive legal presentations on issues, answering questions, and

giving advice. Yet the City now seeks protection for 18 communications that are generally no different than communications often made at such meetings in full view, without recourse to attorney-client privilege. How is what the City Attorney and his colleague attorneys do in public at these meetings (and thus undisputedly non-privileged) any different from the interactions in the emails at issue here?

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5:45 – 36:00 http://cityofracine.granicus.com/MediaPlayer.php?view id=1&clip id=286 5 http://cityofracine.granicus.com/MediaPlayer.php?view id=1&clip id=279 [Min. 1:05-1:10].

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It is unreasonable to assume that the City Attorney and City officials and employees have expectation that much of the City’s legal business such as filling a mayoral vacancy or ordinance changes (or the innumerable other legal issues that arise) can be aired in public meeting (without the privilege shield) but that when that same type of business is broached via email it is to be considered confidential and privileged.

In the emails at issue here, the City Attorney provided to the Council or individual alderpersons notice of a petition for direct legislation [Corr. 2], Redacted Pursuant to 1.9.19 Oral Decision [Corr.

4], the resolution creating the RDA [Corr. 5, 13] and Redacted Pursuant to 1.9.19 Oral Decisi

[Corr. 7],

Redacted Pursuant to 1 9 19 Oral Decision

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Redacted Pursuant to 1.9.19 Oral Decisio

[Corr. 6], Redacted Pursuant to 1 9 19 Oral Decision

nd the he ordinance regardi regarding professional [Corr. 8], and ordin

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services agreements [Corr. 11]. If the subjectt requests had been made at publ pu ic meeting, the City Ope Attorney would be hard-pressed to rely on any exception in the Op Open Meetings Law or attorney-

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factt that th the communications were made via client privilege to refuse to publicly answer. The fa llow circumvention of open gov email does not allow government.

ral al instances, the City Attorney parroted in public the exact same materials and In several ty herein contends is protected by privilege. Petitioner has pointed this out to information the City the Court with respect to Correspondence Nos. 14 and 15.

Yet it is also the case with

Correspondence No. 9. At the April 5, 2017 Committee of the Whole meeting, City Atty. Letteney made a presentation on the City’s options in view of the then mayoral vacancy.6 At the end, Ald. Perez requested a copy of the PowerPoint presentation. Atty. Letteney states: “I can. I did send out a memorandum to everybody dated March 22 …27th…by email. So it’s essentially the same thing as I just did. But I’ll email it to you.”7 The March 27 email is presumably “Correspondence Nine” in these proceedings. As with Correspondence Nos. 14 and 15, Atty. Letteney’s public

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http://cityofracine.granicus.com/MediaPlayer.php?view id=1&clip id=221 10:20-10:36

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presentation of “essentially the same thing” set forth in Correspondence No. 9 renders the privilege inapplicable.

Despite its denial, and despite citing an exception for a date-time of meeting inquiry [Reply, p. 4], the City still appears to labor under the impression that any communications from the City Attorney to the Common Council are privileged. Yet none of the cases it cites in its brief support that result. lege g is Admittedly few cases have dealt with the attorney-client privilege issue as it relates to

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ne of the few that has reflects that communications between a City Attorney and City officials. One nicipal pal attorney communica communicatio courts do not extend a blanket privilege to municipal communications.

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In AHF

Dallass, 258 F.R.D. 143 (N.D. Te Community Development, LLC v. City of Dallas, Tex. 2009)[Exhibit B], an Hou action by a landlord against the City of Dallas alleging Fair Ho Housing Act violations, the plaintiff

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tween a City police officer and an Assistant City Attorney. The Court sought several emails between privil held that somee of the emails were not privile privileged because:

cont contai an attorney’s legal advice or confidential client They do not contain tions made m communications to obtain such legal advice. A few concern merely logistical matters, e.g., setting the date and agenda for a meeting between AHF and the City and scheduling an inspection of AHF’s apartment complex. Others recount dialogue between the City and AHF, including the notes from a December 2005 meeting. Still others concern Richie’s conversations with third parties a community member and a City Council member concerned about crime at AHF’s apartment complex. Finally, two others concern the identification of a specific Dallas City Code provision that Richie needed to reference in the draft of a repair agreement between the City and AHF. Although these relate on a general level to Richie’s preparation of a legally binding agreement, there is no indication that the information provided to Richie which consisted mainly of statutory text was intended to be confidential. Rather, it appears that the City Code provision that was cited would simply be imported into a repair agreement that would in turn be disclosed to AHF for purposes of entering into the agreement.

258 F.R.D. at 147 (citations omitted).

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In so holding the Court rejected the City’s contention that the emails deserved protection because they related to matters within the employees’ scope of duties and were made to enable the Asst. City Attorney to “know the current situation” at the subject apartments and provide legal services to the City.

The Court disagreed that “any communications between employees and

inside counsel that relate to matters within the scope of the employees’ duties, and that somehow assist inside counsel in doing her job, fall within the attorney-client privilege.” The Court observed:

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ompass, at a gener [The Attorney-Client privilege] does not encompass, general level, ade to inside counsel to keep ke her every communication regardless of content made ich she may be asked to t o provide p apprised of an ongoing situation regarding which specific legal advice or services. Becausee in-house attorneys are not reta retained by the ften become involved with the th he broader b client for a specific matter, they often goals of he line between legal and nonleg the organization, “blur[ring] the nonlegal communications.” ideration of each communicati communicatio This calls for careful consideration communication to determine whether it should be protected from disclosure to further the ppu purpose of the privilege.

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ns and quotation omitted). omitted).

Id. at 148 (citations

CONCLUSION

In effect, the he City is asking as a the Court to create an “email exception” to City Attorney legal services, creating a situation where the public could have complete access to public meetings disclosing open communications about City legal matters (including questions and answers on laws and procedures and claims) but not have access to email communications between City representatives and the City Attorney where the representative asked the same questions and receive the same answers on the same or similar topics presented in open meeting.

Based on the foregoing, and for the reasons previously specified in her submissions, Petitioner respectfully requests that the Court find that the subject documents are not entitled to attorney-client privilege protection.

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Dated this 13th day of April, 2018.

KNUTESON, HINKSTON & QUINN, S.C. Attorneys for Petitioner, Sandra J. Weidner By: Electronically signed by Mark R. Hinkston Mark R. Hinkston State Bar No. 1022427 Email: mhinkston@sbcglobal.net 500 College Avenue Racine, WI 53403 Telephone: (262) 633-2000 Fax: (262) 633-9900

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MINNEAPOLIS STAR, ETC. v. HRA, ETC., 310 Minn. 313, 251 N.W.2d 620 (Minn., 1976)

Minn.St. 471.705, Meeting Law.

251 N.W.2d 620 MINNEAPOLIS STAR AND TRIBUNE COMPANY et al., Appellants, v.

The HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR the CITY OF MINNEAPOLIS et al., Respondents.

the

Minnesota

Open

The motion for a temporary injunction was denied upon the lower court's finding that the Open Meeting Law was not inconsistent with nor did it repeal by implication the statutory attorney-client privilege. The court further held that the judicial branch of government has the inherent power to regulate the conduct of attorneys in coordination with public agencies. Plaintiffs appeal from the summary judgment entered in favor of defendants.

No. 46245.

Supreme Court of Minnesota.

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September 17, 1976.

The HRA for orr the city of Minneapolis M is a public agency ncy responsible for the th designation and distribution of Federal urban renewal urba ur Minn.St. 462.411 to funds throughout the city. Minn.St Minn Richard H. Jefferson, 462.716.

6. Defendants Richar Richa Emily Peake, and Donald Walter F. Bochnak, Em officers and members of the HRA. P. Early are officer Defendants A. Carlson, Leo A. Bernat, De Def fenda ndants ts Clifford C and nd Mary Mar Ma Grace Flannery are members of the HRA, and defendant Richard A. Brustad is the H HR executive director of HRA.

Rehearing Denied November 4, 1976.

Faegre & Benson and John S. Holten, James M. Samples and John B. Gordon, Minneapolis, for appellants.

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Holmes, Eustis, Kircher & Graven, raven,, David L. Graven and James S. Holmes, mes, Minneapolis, for respondents.

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Stanley G. P Peskar, skar, League eague of Minnesota Minneso Municipalities, curiae, ties, es, St. Paul, amicus cu cur seeking affirmance. mance.

Plaintiff Minneapolis Star and Tribune Company publishes two daily newspapers, the Minneapolis Star and the Minneapolis Tribune. Plaintiff Peter Ackerberg is employed as a Minneapolis Star reporter, while Leonard J. Canning at the time of the commencement of the action served as the executive editor of the Minneapolis Star.

Considered and decid decided by the court en banc.

[251 N.W.2d 621]

SCOTT, Justice.

On April 23, 1975, plaintiff Ackerberg was present at the HRA office to attend a scheduled and publicly announced special meeting. At that time he became aware of a session to be convened for the express purpose of discussing litigation strategy in an action then pending in the United States District Court, District of Minnesota, Fourth Division, entitled CedarRiverside Environmental Defense Fund v.

Hills, 422 F.Supp. 294. HRA as a public agency and one of its members individually, Mr. Bochnak, are defendants in that action.

Plaintiffs, Minneapolis Star and Tribune Company, Peter Ackerberg, and Leonard J. Canning, commenced this action to obtain a temporary and permanent injunction prohibiting defendant Housing and Redevelopment Authority (hereinafter HRA) and the individual defendants from conducting official meetings closed to the public. In addition, plaintiffs sought a declaratory judgment that all meetings of the HRA convened for the purpose of transacting public business be open to the public, and the imposition of civil penalties pursuant to -1-

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MINNEAPOLIS STAR, ETC. v. HRA, ETC., 310 Minn. 313, 251 N.W.2d 620 (Minn., 1976)

Ackerberg was excluded from this closed strategy session despite his stated objections that the meeting was to be conducted in violation of the Open Meeting Law. Upon conclusion of that meeting, Ackerberg was admitted to the previously scheduled public meeting.

[251 N.W.2d 622]

The record also indicates that on March 3, 1975, HRA had conducted a similar closed strategy session concerning the CedarRiverside case without public notice of the meeting.

"3. That after motions were argued before Judge Miles Lord in United States District Court on April 21, 1975 regarding proceedings with the CedarRiverside environmental litigation, our office, as attorneys for the Authority, felt it imperative that we meet with our clients to discuss some of the questions that had been raised thereby and the alternatives available to uss in that llitigation.

Accordingly, ly, on April 23, 23 1975, Mr. Graven and I recomm recommended meeting with the a discuss trial Commissioners to discu and further strategy recommended commended that tth said meeting be closed to t the public and the press. pres press

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It is necessary to consider the basis of the HRA's decision to close the strategy meeting to the public. The Cedar-Riverside action concerns a challenge to the adequacy of the environmental impact statement prepared by the HRA in connection with the CedarRiverside high-density residential and commercial construction project in oject ct Minneapolis. Plaintiffs herein state in their brief that the plaintiffs in the Cedar Cedar-Rive side Ceda -Riverside verside case assert that the he HRA environmental environmenta impact statement nt failed to consider —

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"* * * the effect of density on psychological logical ogical and ssocial behaviorr * * *; alleged alleg excessive traffic congestion gestion and associated air and noise pollution; lack of adequate natural parkland in the development plan; destruction of the nature of the existing community * * *; and the effect that funding a major development in one area of Minneapolis would have on denying redevelopment funds to other areas."

"4. That before said April 23 meeting, I explained to plaintiff Ackerberg the reasons for which we were recommending that he be excluded.

"5. That the meeting was then held and matters discussed related solely to Cedar-Riverside environmental litigation strategy.

"6. That as general counsel to the Housing Authority we have exercised extreme caution in the recommendation of or participation in closed meetings.

This has been because of the ultimate remedy of `ouster' which exists in the Minnesota Open Meeting Law. On April 29, 1975, we received an offer of settlement of the CedarRiverside environmental litigation from John Herman,

This pending action and its attendant circumstances precipitated the HRA's determination to meet to discuss the strategy to be employed throughout the litigation. As elucidated by the May 13, 1975, affidavit of James S. Holmes, attorney for HRA: -2-

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MINNEAPOLIS STAR, ETC. v. HRA, ETC., 310 Minn. 313, 251 N.W.2d 620 (Minn., 1976)

attorney for the Cedar-Riverside Defense Fund. On May 6, 1975, a committee of the Housing Authority had on its meeting agenda this settlement offer. At the meeting, I advised the Commissioners of the offer, stated that it was my professional opinion that it would not be in the best interests of the Authority to discuss the settlement in the presence of the opposition, but stated that until the Open Meeting Law was clarified, I did not feel that I could recommend another closed meeting at that time. As a result, the Cedar-Riverside litigation item was removed from the agenda.

"7. That it is my opinion that ourr obligation as attorneys cannot ann be fulfilled unless we confiden confidentially con identially confer with our ur clients lients regarding regardi this lawsuit. su t. At the sam suit. same time, tim it is our ur opinion tha that it would be extremely mely detrimental to the th Authority ityy to discuss trial strategy and settlement proposals in the th presence of our litigating opposition. Failure to recognize an attorney-client privilege in this and similar matters will have a significant negative impact upon the Authority's ability to effectively deal with litigation matters such as the Cedar-Riverside environmental suit."

"Except as otherwise expressly provided by statute, all meetings, including executive sessions, of any state agency, board, commission or department when required or permitted by law to transact public business in a meeting, and the governing body of any school district however organized, unorganized territory, county, city, town, or other public body, and of any committee, subcommittee, subc board, department or departmen commission thereof, shall be sion on sh open en to the public, eexcept meetings of the boa board of Minnesota pardons, the M Minn i corrections authorit authority."

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In opp opposition position sition, defendants contend that that portio portion of Minn.St. 471.705, subd. 1, which states "except as otherwise expressly p ovided by statute" clearly preserves the pr integrity and applicability of the attorneyclient privilege, as found in Minn.St. 595.02(2)1 and Minn.St. 481.06(5).2 While

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[251 N.W.2d 623] not specifically providing that attorney-client meetings involving public agencies must remain inviolate, both statutes generally indicate a legislative intent to preserve attorney-client confidences.

Our analysis must then focus upon the efficacy and necessity of adhering to the basic principles of the attorney-client privilege when balanced against the public's right to be informed of all actions and deliberations made in connection with activities geared to ultimately affect the public interest.

Plaintiffs essentially assert that the legislature is empowered to limit the application of the attorney-client privilege when balanced with the extensive public interest and that the promulgation of the Open Meeting Law is exemplary of such a limitation.

Minn.St. 471.705, subd. 1, provides in part:

This court is empowered by Article 3, ยง 1, of the 1974 Minnesota Constitution to administer, among other areas, the practice of law. This section provides: -3-

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MINNEAPOLIS STAR, ETC. v. HRA, ETC., 310 Minn. 313, 251 N.W.2d 620 (Minn., 1976)

supreme court, free from the dangers of encroachment either by the legislative or executive branches * * *.'"

"The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution."

Consistent with this pronouncement, this court had adopted a code of professional responsibility which includes among its many admonitions the following: "CANON 4 "A Lawyer Should Preserve the Confidences and Se Secrets of a Client.

This duty and power were fully discussed in the recent decision of Sharood v. Hatfield, 296 Minn. 416, 425, 210 N.W.2d 275, 280 (1973), in which we stated: "The power to regulate the practice of law rests with the judiciary. Over 100 years ago, the United States Supreme Court, in a case arising from th thee Territory of Minnesota, said: sai

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"ETHICAL HICAL ICAL CONSIDERAT CONSIDERATIONS

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""EC EC 4 E 4-1 -11 Both the fid fiduc fiduciary relationship existing between lawyer wyer and client and a the proper functioning ctioning of the legal system require the preservation by the lawyer of confidences and law secrets of one who has employed or sought to employ him. A client must feel free to discuss whatever he wishes with his lawyer and a lawyer must be equally free to obtain information beyond that volunteered by his client. A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but

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"`* * * It has been een n well settled, by the rules es and practice of common-law mon on--law courts, that it rests exclusively usively ively with the court to determine qualifi d to mine ine who is qualifie become one as an ne of its officers, offic of attorney and and for nd counsellor, cou what cause he ought to be removed.' Ex Parte Secombe, 60 U.S. (19 How.) 9, 13, 15 L.Ed. 565 (1857).

"This court has recognized its inherent power to regulate the practice of law in many decisions. In the syllabus written by the court to the case of In re Petition for Integration of Bar of Minnesota, 216 Minn. 195, 12 N.W.2d 515, 516, we said: "`* * * The power to make the necessary rules and regulations governing the bar was intended to be vested exclusively in the -4-

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MINNEAPOLIS STAR, ETC. v. HRA, ETC., 310 Minn. 313, 251 N.W.2d 620 (Minn., 1976)

also encourages laymen to seek early legal assistance."

Supervisors, 263 Cal.App.2d 41, 58, 69 Cal.Rptr. 480, 492 (1968), where it was stated:

This long-accepted theory protecting the attorney-client relationship is as basic to our legal system as the right of the judiciary to regulate and oversee the administration of that legal system. That the legislature has recognized the court's power to so regulate is evidenced by Minn.St. 480.05, which provides:

"The two enactments are capable of concurrent operation if the lawyer-client privilege is not overblown beyond its true dimensions. As a barrier to testimonial disclosure, the privilege tends to suppress relevant facts, hence is strictly construed. (Greyhound Corp. v.

Superior Court, supra, 56 Cal.2d at p. 396, 15 Cal.Rptr.

Rpt 90, 264 P.2d 266.) Ass a barrie barrier against public access it ccess ess to public affairs, af hass precisely the same suppressing effect, hence here h construed. too must be strictly con const assurance of As noted earlier, the a as private ivate legal cconsultation is restricted ricted to communications confidence.' Private clients, `in co relatively free of regulation, may set relatively wide limits on confidentiality. Public board members, sworn to uphold the law, may not arbitrarily or unnecessarily inflate confidentiality for the purpose of deflating the spread of the public meeting law. Neither the attorney's presence nor the happenstance of some kind of lawsuit may serve as the pretext for secret consultations whose revelation will not injure the public interest. To attempt a generalization embracing the occasions for genuine confidentiality would be rash."

"This supreme court shall have all the authority necessary for carrying into execution

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[251 N.W.2d 624] its judgments and determinations, and for the exercise of its jurisdiction as the supreme judicial tribunal of th he state, agreeable to the usages and principles of law.

Suc court w. Such shall prescribe,, and nd from time to time mayy amend and modify, modi ruless off practice therein and also rules governing the examination and admission dmission to practice practic of attorneyss at law and rules a governing thei h r conduct in the their practice of their profession, and h rules concerning the presentation, hearing, and determination of accusations against attorneys at law not inconsistent with law, and may provide for the publication thereof at the cost of the state."

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In implementing this administrative power, it is imperative that we determine the proper place and scope of the attorney-client privilege within the system. Some jurisdictions have faced similar controversies to that presented herein.3 Notable among the conclusions reached is that of a California Court of Appeals in Sacramento Newspaper Guild v. Sacramento County Bd. of

In Florida, the privilege was recognized as an exception to that state's open meeting law in Bassett v. Braddock, 262 So.2d 425, 428 (Fla.1972); Times Publishing Co. v. Williams, 222 So.2d 470, 475 (Fla.App.1969). But see, Canney v. Board of Public Instruction of -5-

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MINNEAPOLIS STAR, ETC. v. HRA, ETC., 310 Minn. 313, 251 N.W.2d 620 (Minn., 1976)

Alachua County, (Fla.1973).

278

So.2d

260,

264

"* * * The statute embodying the attorney-client privilege not only protects the client from disclosure by the attorney, it also excuses the client from being compelled to disclose his confidential communications to his attorney or the advice given by the attorney. Casey v. State, 37 Ark. 67.

In Channel 10, Inc. v. Independent School Dist. No. 709, 298 Minn. 306, 215 N.W.2d 814 (1974), we analyzed the need for recognizing a sweeping exception to the Minnesota Open Meeting Law, including instances in which a public body attempts to discuss pending litigation with its attorney without public notification or participation. While the circumstances of that case led to our hesitation to adopt either the majority rule favoring recognition of the exception or the minority rule (adopted in an Arkansas decision discussed hereinafter) refusing to recognize it, we noted that —

"Only a small fraction of a city council's need for legal consultation and ad dviice arises in connection with ith the preparation pre pr of casess fo in for trial. Even E pending proceedings the need nding communications for confidential communic communicat on settlement possibiliti possibilities and settlement authority is i critical."

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"* * * if any exceptions are to be made because of an attorneyclient relationship, it should be done on a case-by-case

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[251 N.W.2d 625]

But he conclu conclud concluded that (245 Ark. 409, 432 S.W.2d 757):

S

basis or att least in a case wit with a moree detailed factual setting * * *." 298 98 8 Minn. 323, 215 N.W.2d 826.

Clearly the blind application of the attorney-client privilege in all such cases i without guidelines or limitations would potentially jeopardize the public's right to be informed as required by the Open Meeting Law. Public matters should be discussed openly and freely, a position espoused by this court as well as the California court.

"It is not our function to look into the wisdom of this action or the advisability of the public purpose sought to be accomplished."

We reject this analysis and prefer to adopt the reasoning of the trial court in its thorough memorandum which was incorporated into the order denying a temporary injunction: "In conclusion, the two statutes are capable of compatible and concurrent operation assuming that the public officers and attorneys do not abuse their trust by extending the privilege as a mere conduit to suppress public observation of the decision-making process. The `in confidence' communication must not be arbitrarily or unreasonably exercised.

Therefore, in holding that the Open Meeting Law does not

It must be noted that we have carefully considered the opinion of the Arkansas Supreme Court in Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968), which, on the ground the legislative mandate was clear, rejected the attorney-client privilege as an exception to the freedom of information statute. In a concurring opinion, Mr. Justice John Fogelman added (245 Ark. 408, 432 S.W.2d 757): -6-

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MINNEAPOLIS STAR, ETC. v. HRA, ETC., 310 Minn. 313, 251 N.W.2d 620 (Minn., 1976)

impliedly repeal the attorneyclient privilege as applied to the HRA's right to privately confer with counsel when it reasonably deems such conference requires confidentiality, the motion for a temporary injunction at this stage of the proceedings is accordingly overbroad. And, inasmuch as there has been no probative evidence evincing any other clandestine gathering or meeting by the HRA in contravention of the Open Meeting Law, the motion for temporary injunction should be denied."

[251 N.W.2d 626] statute.

The attorney-client exception discussed herein would almost never extend to the mere request for general legal advice or opinion by a public body in its capacity as a public agency. We cannot emphasize too strongly that should this exception be applied as a barrier against public access to public affairs, it will not be tolerated, for this court has consistently emphasized that respect for and adherence to the First Amendment is absolutely essential to the continuation of our democratic form of govern nment. It will be upheld, however, iff the t b aancing of these bal conflicting public p i tates the need for licc policies dictat absolute confidentiality. The exception is e therefore efore fore available to satisfy tthe concerns expressed ssed herein but is to be eemployed or in situations invoked d cautiously and seldom seld other than n in relation tto threatened or pending lit litigation.

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In this area requiring a delicate balancing of public interests, our conclusion was reached only after a thorough consideration of thee record, which discloses that the members embers bers of HRA were involved in active and immediate litigation in their capacity ity ty as members of a public agency and also, o, in one case, as an a individual. Thee advisory meetings with tthe attorney were eree necessary to perhaps attain a settlement ultimately timately beneficial to t the agency, the individual,, and the gene general public. pu

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S

Affi Affirmed.

MacLAUGHLIN, J., after oral argument, withdrew from the consideration and decision of this case.

The attorney-cli -client client exception is therefore operable in this matter to fully implement the confidentiality of the relationship. A basic understanding of the adversary system indicates that certain phases of litigation strategy may be impaired if every discussion is available for the benefit of opposing parties who may have as a purpose a private gain in contravention to the public need as construed by the agency.

ORDER

You will please take notice that on this date the following order was entered in the above entitled cause: The appellants have petitioned for rehearing, and the same is opposed by the respondents. In their petition for rehearing the appellants do "not seek to question the central holding that the Minnesota Open Meeting Law, Minn.St. ยง 471.705, and the attorneyclient privilege can be interpreted to operate compatibly and concurrently," but suggest that this court establish certain controlling procedures and standards. In such an extensive and important field the public would best be served by full hearings of all interested groups in determining proper parameters of governing rules. Courts do not possess the

The record discloses that tort cases against the HRA are handled by lawyers retained by insurance companies. Certainly, in this respect, if the board were required to meet with the insurance company's lawyer on a specific case, that consultation should not be subject to public scrutiny as an "open meeting" contemplated by the -7-

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MINNEAPOLIS STAR, ETC. v. HRA, ETC., 310 Minn. 313, 251 N.W.2d 620 (Minn., 1976)

facilities for the necessary public expression in a single case such as this. An adequate solution should be attempted through diverse organizations such as Common Cause, The League of Municipalities, the Bar Associations, and the various interested media organizations.

Harv.L.Rev. 1199, 1220-21 (1962). Of them, only one has suggested a specific attorneyclient privilege, with a mandatory public announcement of any subjects discussed and any actions taken immediately following any conference between a public agency and its attorneys. Little, supra, 485.

ORDERED, that the petition for reargument herein be and the same hereby is denied and stay vacated.

--------

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-------Notes: 1 Minn.St. 595.02(2) provides in part: "An attorney cannot, without the consent of his client, be examined as to any communication on made by the client to him or his advicee gi g ven thereon in the course of professional onal duty * * *."

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2 Minn.St. 481.06(5) .06(5) provides in pertinent part: t:: "Every attorney at law shall: ******

"(5) Keep invi late the co confidences of his nviolate client * * *."

3 As of 1975, more than 40 states had open meeting laws. Little & Tompkins, Open Government Laws: An Insider's View, 53 N.C. L.Rev. 451, 487 to 89. Of those states, three (Missouri, North Carolina and Wisconsin) had open meeting laws that specifically provide for an attorney-client privilege. Id. at 457, note 19.

Many commentators have proposed "model" open meeting laws. Kalil, Florida Sunshine Law: Is Florida Sunshine The Most Powerful of Disinfectants?, 49 Fla.B.J. 72, 79; Wickham, Let The Sunshine In! Open-Meeting Legislation Can Be Our Key to Closed Doors in State and Local Government, 68 Nw.U.L.Rev. 480, 499; Note, 49 Texas L.Rev. 764, 777; Note, "Open Meeting Statutes: The Press Fights For The Right To Know," 75 -8-

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AHF Community Development, LLC v. City of Dallas, 258 F.R.D. 143 (2009)

258 F.R.D. 143 United States District Court, N.D. Texas, Dallas Division.

AHF COMMUNITY DEVELOPMENT, LLC, Plaintiff, v.

The CITY OF DALLAS, et al., Defendants.

Civil Action No. 3:06–CV–1035–D. | Feb. 12, 2009.

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Synopsis Background: In Fair Housing Act action brought by lessor against city defendants, lessor moved for an in camera inspection efendants dants and for a determination tthat the documents were of several documents that had been produced in discovery by city defendants etain possession of them. not subject to the attorney-client privilege and that lessor was entitled to retain

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zwater, Chief Judge, held that: Holdings: The District Court, Sidney A. Fitzwater, [1]

E S

those email communications between etween tween city employees and assistant city attorney which contained attorney’s legal advice co and opinions related to the city’s response to a fair housing complaint, and confidential information provided to enable ty’s response were protected attorney to prepare the city’s res e by attorney-client privilege, but

[2]

defendants voluntarily rily ily waived attorney attorney-client attorney--client pprivilege with respect to documents which were used as exhibits at one nd served as the basis defendant’s deposition and an is of questioning.

Motion granted.

West Headnotes (8) [1]

Privileged Communications and Confidentiality Presumptions and Burden of Proof Mere existence of an attorney-client relationship or the mere exchange of information with an attorney does not give rise to a presumptive claim of privilege.

2 Cases that cite this headnote

[2]

Privileged Communications and Confidentiality © 2018 Thomson Reuters. No claim to original U.S. Government Works.

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AHF Community Development, LLC v. City of Dallas, 258 F.R.D. 143 (2009)

Elements in General; Definition To protect a document from disclosure under attorney-client privilege, party must establish: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is (the) member of a bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

4 Cases that cite this headnote

[3]

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Privileged Communications and Confidentiality Construction

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Although the attorney-client privilege serves an important mportant portant purpose, it also impedes the full and free discovery of truth and therefore should be strictly construed.

E S

2 Cases that cite this headnote

[4]

Privileged Communications ommunications mmunications and Confident Confi Confidentiality entia ectronic ctronic Communication E-Mail and Electronic Privileged Communications munications nications aand C Confidentiality Subject Matter; Particular articular Ca Cas Cases

Those email communications between city employees and assistant city attorney which contained attorney’s legal advice and opinions related to the city’s response to a fair housing complaint that lessor filed with the U.S. Department of Housing and Urban Development, and confidential information provided to enable attorney to prepare the city’s response were protected from discovery in fair housing suit by the attorney-client privilege; however, those email communications, which set the date and agenda for a meeting between lessor and the city and scheduled an inspection of lessor’s apartment complex, were not protected by the privilege since they did not contain attorney’s legal advice or confidential client communications made to obtain such legal advice.

2 Cases that cite this headnote

[5]

Privileged Communications and Confidentiality Elements in General; Definition Attorney-client privilege does not encompass, at a general level, every communication, regardless of content, made to inside counsel to keep her apprised of an ongoing situation regarding which she may be asked to provide specific © 2018 Thomson Reuters. No claim to original U.S. Government Works.

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legal advice or services.

1 Cases that cite this headnote

[6]

Privileged Communications and Confidentiality Waiver of Privilege Generally, a party waives attorney-client privilege when it voluntarily discloses privileged communications to a third party, including an adversary in litigation.

7 Cases that cite this headnote

[7]

Privileged Communications and Confidentiality Waiver of Privilege In determining whether an inadvertent ertent rtent disclosure effects a waiver of aattorney-client privilege, courts consider five non-exhaustive factors: (1) the he reasonableness of precautions taken tak to prevent disclosure; (2) the amount of time taken to remedy the error; or; (3) the scope of discovery; (4) the extent of the disclosure; and (5) the overriding issue of fairness.

1 Cases that cite itee this headnote

[8]

Privileged Communications and Confidentiality Waiver of Privilege City defendants voluntarily waived attorney-client privilege with respect to documents which were used as exhibits at one defendant’s deposition and served as the basis of questioning; the deposition questions and exhibits provided sufficient notice of the possibility that privileged documents had been produced to opposing party and that information regarding privileged communications was being sought.

1 Cases that cite this headnote

Attorneys and Law Firms *144 John Ben Blanchard, J. Daren Brown, Shawn D. Twing, Sprouse Shrader Smith, Amarillo, TX, Mitchell Murphy, K&L Gates LLP, Fort Worth, TX, William G. Whitehill, Gardere Wynne Sewell, Dallas, TX, for Plaintiff.

Victoria W. Thomas, Peter B. Haskel, Dallas City Attorney’s Office, Dallas, TX, for Defendants. Š 2018 Thomson Reuters. No claim to original U.S. Government Works.

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AHF Community Development, LLC v. City of Dallas, 258 F.R.D. 143 (2009)

Opinion

*145 MEMORANDUM OPINION AND ORDER SIDNEY A. FITZWATER, Chief Judge.

Plaintiff AHF Community Development, LLC (“AHF”) moves under Fed.R.Civ.P. 26(b)(5)(B) for an in camera inspection of several documents that have been produced in discovery by defendants City of Dallas (“City”), Sergeant Preston Gilstrap (“Sergeant Gilstrap”), and Senior Police Corporal Richard Todd. AHF also moves for a determination that the documents are not subject to the attorney-client privilege and that AHF is entitled to retain possession of them. For the reasons that follow, the court grants the motion and holds that the documents in question either are not privileged under the attorney-client privilege or that defendants waived the privilege.

I

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harassment of tenants and other conduct AHF brings this action alleging that the City and individuall City officials engaged in harassmen S.C. §§ 3601–3619, 3601 ggering a decline declin decli in occupancy at an AHF-owned unlawful under the Fair Housing Act (“FHA”), 42 U.S.C. 3601– 9, triggering t deposition of Sergeant Gilstrap, he apartment complex and causing AHF to defaultt onn its bond indebtedness. During the ent to or received from Jennifer testified regarding several emails that he sent nifer Ri Richie, Esquire (“Richie”), an Assistant City Attorney who was then a party-defendant.1

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ants notified no otified ified AHF that certain documents docum After the deposition, defendants about which Sergeant Gilstrap had been questioned thes documents, along with others listed on privilege logs that had were subject to a claim of privilege. They explained that these F, had been included inadvertently inadverten been provided to AHF, F on a compact disc of electronic documents that the City had City’s produced due to the C ’ conversion o to a new litigation management software. Citing Rule 26(b)(5)(B), defendants urn rn all the inadvertently requested that AHF return h inadvertentl r produced documents and refrain from using or disclosing them. Responding y identify the do to AHF’s request that they documents, defendants provided an updated privilege log that specified Bates numbers for all documents subject too a claim of privilege, including additional documents that defendants had discovered since their ond that it disputed the claims of privilege as to certain documents listed on the updated first notification. AHF responded privilege log. This motion followed. Pursuant to Rule 26(b)(5)(B), AHF has submitted under seal the documents that it maintains are not privileged.

Although in its motion AHF discusses two privileges in addition to the attorney-client privilege, defendants in their response rely only on the attorney-client privilege. Moreover, defendants disclaim any privilege as to certain of the documents that AHF has submitted under seal. Accordingly, the court will consider only the attorney-client privilege, and waiver of the privilege, as to the documents that remain in dispute: COD–ATTJ–01979 to COD–ATTJ–01981, COD–ATTJ–01987 to COD–ATTJ–01988, COD–ATTJ–01996 to COD–ATTJ–01998, COD–ATTJ–03617, COD–ATTJ–03619 to COD–ATTJ–03620, COD–ATTJ–01954 (Exhibit 6), COD–ATTJ–01867 (Exhibit 19), COD–ATTJ–01997 (Exhibit 27), COD–ATTJ–01976 to COD–ATTJ–01977 (Exhibit 30), COD–ATTJ–01941 (Exhibit 32), COD–ATTJ–01938 (Exhibit 33), COD–ATTJ–01837 (Exhibit 34), COD–ATTJ–01105 to COD–ATTJ–01106 (Exhibit 37).

II The parties raise two controlling issues: whether the documents in question are privileged under the attorney-client privilege, and, if they are, whether defendants waived the privilege. In its motion, AHF discusses not only the attorney-client privilege but also two other privileges. The court will address first whether the disputed documents are privileged under the attorney-client privilege. © 2018 Thomson Reuters. No claim to original U.S. Government Works.

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*146 A [1]

The attorney-client privilege exists to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).2 To achieve this goal, the privilege protects from disclosure “communications from the client to the attorney made in confidence for the purpose of obtaining legal advice.” Wells v.

Rushing, 755 F.2d 376, 379 n. 2 (5th Cir.1985). “ ‘It shields communications from the lawyer to the client only to the extent that these are based on, or may disclose, confidential information provided by the client or contain advice or opinions of the attorney.’ ” Aspex Eyewear, Inc. v. E’Lite Optik, Inc., 2002 WL 1592606, at *2 (N.D.Tex. July 17, 2002) (Fitzwater, J.) (quoting United States v. Neal, 27 F.3d 1035, 1048 (5th Cir.1994)). The attorney-client pprivilege applies not only to ation and an a its inside counsel. United communications with outside counsel but also to communications between a client corporation U at 389–97, 101 S.Ct. States v. Mobil Corp., 149 F.R.D. 533, 537 (N.D.Tex.1993) (Maloney, J.) (citing Upjohn, 449 U.S. 677). Nonetheless, “the mere existence of an attorney-client relationship or the mere exchange of information with an Inc., 129 F.R.D. 139, 142 attorney does not give rise to a presumptive claim of privilege.” Varo,, Inc. v. Litton Sys., Inc. (N.D.Tex.1989) (Fitzwater, J.).

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[2] [3]

Because defendants assert the privilege, they have the burden of proving that it applies to each ea document that they seek Cir.1982) Cir.1982 Specifically, they must establish to protect from disclosure. United States v. El Paso Co.,., 6822 F.2d 530, 539 (5th Cir.1982). as to each document the following elements:

E S

he privilege is or sought to become a client; (2) the person to whom the (1) the asserted holder of the made (a) is (the) member of a bar of o a court, or his subordinate and (b) in communication was mad his communication ommunication is acting as a law connection with this lawyer; (3) the communication relates to a fact of torney was informed (a) by his his clien which the attorney client (b) without the presence of strangers (c) for the o purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in al proceeding, and not (d) for th tthe purpose of committing a crime or tort; and (4) the privilege some legal a)) claimed and (b) not waived wa has been (a) by the client.

In re Grand Jury Proceedings, i 517 F.2d 666, 670 (5th Cir.1975) (citing United States v. United Shoe Mach. Corp., 89 F.Supp. 357, 358–59 (D.Mass.1950)). Moreover, although the attorney-client privilege serves an important purpose, it also impedes the full and free discovery of truth and therefore should be strictly construed. Navigant Consulting, Inc. v.

Wilkinson, 220 F.R.D. 467, 473 (N.D.Tex.2004) (Kaplan, J.) (citing Perkins v. Gregg County, Tex., 891 F.Supp. 361, 363 (E.D.Tex.1995)); see also In re Grand Jury Proceedings in re Fine, 641 F.2d 199, 204 n. 5 (5th Cir. Unit A Mar.1981) (“[T]he attorney-client privilege should be confined within the narrowest limits consistent with its purpose.”).

B [4]

Defendants maintain that the disputed documents are protected by the attorney-client privilege because they represent email communications between City employees and Richie, acting in her capacity as the City’s assistant city attorney, i.e., its inside counsel. AHF counters that the disputed documents are not protected because they do not contain any confidential communications or legal advice.

The court concludes that certain disputed documents are subject to the attorney-client privilege. These contain Richie’s legal advice and opinions related to the City’s response to a fair housing complaint that AHF filed with the U.S. Department of Housing and Urban Development, and confidential information provided to enable Richie to prepare the City’s response. P. App. 129 (COD–ATTJ–01867) (Exhibit 19), 138 (COD–ATTJ–01837) (Exhibit 34), 142–43 (COD– *147 ATTJ–01105 to COD–ATTJ–01106) (Exhibit 37). © 2018 Thomson Reuters. No claim to original U.S. Government Works.

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AHF Community Development, LLC v. City of Dallas, 258 F.R.D. 143 (2009)

The court concludes that the remaining disputed documents are not privileged. 3 They do not contain an attorney’s legal advice or confidential client communications made to obtain such legal advice. A few concern merely logistical matters, e.g., setting the date and agenda for a meeting between AHF and the City and scheduling an inspection of AHF’s apartment complex. Id. at 90–92 (COD–ATTJ–01979 to COD–ATTJ–01981), 93–94 (COD–ATTJ–01987 to COD–ATTJ–01988), 100–01 (COD–ATTJ–03619 to COD–ATTJ–03620). Others recount dialogue between the City and AHF, including the notes from a December 2005 meeting. Id. at 98 (COD–ATTJ–03617), 133–34 (COD–ATTJ–01976 to COD–ATTJ–01977) (Exhibit 30). Still others concern Richie’s conversations with third parties—a community member and a City Council member—concerned about crime at AHF’s apartment complex. Id. at 95–97 (COD–ATTJ–01996 to COD–ATTJ–01998), 127 (COD–ATTJ–01954) (Exhibit 6), 131 (COD–ATTJ–01997) (Exhibit 27). Finally, two others concern the identification of a specific Dallas City Code provision that Richie needed to reference in the draft of a repair agreement between the City and AHF. Id. at 136 (COD–ATTJ–01941) (Exhibit 32), 140 (COD–ATTJ–01938) (Exhibit 33). Although these relate on a general level to Richie’s preparation of a legally binding agreement, there is no indication that the information provided to Richie—which consisted mainly of statutory text—was intended to be confidential. Rather, it appears that the City Code tur be disclosed to AHF for provision that was cited would simply be imported into a repair agreement that would inn turn purposes of entering into the agreement.

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pjohn john a corporation’s inside in Upjohn, on which defendants rely, does not suggest a different outcome. In Upjohn counsel questioned il its lower-level employees in order to determine whether the company had made bribes ribes or other ille i legal payments, and to 01 S.Ct. 677. The he Supreme Co advise the company accordingly. Upjohn, 449 U.S. at 386–87, 101 Court held that these ge because se they “concerned “concerned matters within the scope of the communications were protected by the attorney-client privilege es were sufficiently aware that they were being questioned in order employees’ corporate duties, and the employees themselves unications were kept confidential. confide confiden that the corporation could obtain legal advice,” and thee communications Id. at 394–95, 101 S.Ct. 677.

[5]

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Here, defendants maintain that the emaill communications between tw en Richie an and other City employees are protected under the employees’ scopee of dutie duti Upjohn because they relate to matters within wit duties and were made to enable Richie to “know the ments an de legal services to the th t City. Ds. Resp. 7. This argument seems to suggest current situation” at AHF’s apartm a d provi rovide tween employees and inside counse counsel that relate to matters within the scope of the employees’ that any communications between w assist ssist inside counsel in doing her jjob, fall within the attorney-client privilege. The court disagrees. duties, and that somehow in As explained above, thee privilege is to be construed in keeping with its purpose of promoting candor in the attorney-client gly itt protects only relationship. “Accordinngly y those disclosures necessary to obtain informed legal advice which might not have rivilege. vilege ” Fisher sher v. Un Uni been made absent the privilege.”

United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). It does not vel, com encompass, at a general level, l every co mmunication—regardless of content—made to inside counsel to keep her apprised of rding ding which whi she may be asked to provide specific legal advice or services. Because in-house an ongoing situation regarding attorneys are not retained by the client for a specific matter, they often become involved with the broader goals of the organization, “blur[ring] the line between legal and nonlegal communications.” Rossi v. Blue Cross & Blue Shield of Greater N.Y., 73 N.Y.2d 588, 592, 542 N.Y.S.2d 508, 540 N.E.2d 703 (N.Y.1989). This calls for *148 careful consideration of each communication to determine whether it should be protected from disclosure to further the purpose of the privilege. Here, unlike in Upjohn, defendants have not established that the disputed documents identified above are related to specific legal advice or services that the City sought from Richie. Accordingly, the court holds that the documents are not privileged.

E S

III The court now considers whether defendants waived the attorney-client privilege as to those documents that are privileged. 4

A AHF maintains that defendants waived the privilege because they did not object when certain disputed documents were used in Sergeant Gilstrap’s deposition; several months elapsed between defendants’ inadvertent production and their privilege claim; and AHF has relied on the disputed documents in developing its case and should not in fairness be made to suffer the © 2018 Thomson Reuters. No claim to original U.S. Government Works.

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effects of defendants’ conversion to a new litigation management software program. Defendants counter that they took reasonable precautions to prevent inadvertent disclosure, e.g., marking the documents as privileged, and that the time period relevant to waiver begins when they discovered the inadvertent disclosure rather than when it occurred.

B [6]

Generally, a party waives attorney-client privilege when it voluntarily discloses privileged communications to a third party, including an adversary in litigation. Reedhycalog UK, Ltd. v. Baker Hughes Oilfield Operations, Inc., 251 F.R.D. 238, 244 (E.D.Tex.2008); Aspex Eyewear, 2002 WL 1592606, at *3; see also El Paso, 682 F.2d at 539 (“To retain the attorney-client privilege, the confidentiality surrounding the communications made in that relationship must be preserved.”).

The Fifth Circuit has held that “[a] client waives the attorney-client privilege ... by failing to assert it when confidential Cir.1 Cir.19 information is sought in legal proceedings.” Nguyen v. Excel Corp., 197 F.3d 200, 206 (5thh Cir.1999).

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[7]

An exception potentially applies, however, when the disclosure of privilegedd communications is inadvertent. Alldread v. x.), .), IInc. Inc v. Dott Hill H l Sys. Co Corp City of Grenada, 988 F.2d 1425, 1434 (5th Cir.1993); Crossroads Sys. (Tex.), Corp., 2006 WL 1544621, dis at *2 (W.D.Tex. May 31, 2006) (“The law of this circuit is clear that when privileged ivileged materials are disclosed inadvertently, ons are met. met.” ”). In determinin determining whether an inadvertent the disclosure will not be deemed a waiver of privilege if certain conditions m t.”). nsider non -exhaustive factors: disclosure effects a waiver, courts in the Fifth Circuit cons e five nonnon-exhaustive fa s: (1) the reasonableness of me taken to remedy the error; precautions taken to prevent disclosure; (2) the amount of time ror; (3 (3) the scope of discovery; (4) the ffair ness. Alldread, Al 1 14 extent of the disclosure; and (5) the overriding issuee of fairness.

9888 F.2d at 1433.

[8]

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C

The parties centerr their heir waiver arguments on the five Alldread factors. The initial question, however, is whether the untary ntary or inadvertent. It app ap disclosure here is voluntary appears to be undisputed that defendants’ production of allegedly privileged ent.. But even if the in iinitial disclosure was inadvertent, defendants may have engaged in other conduct documents was inadvertent. the privilege. privilege privile that effected a waiver off the Certain disputed documents—including all those that the court has held to be privileged—were also used as ex xhibits at Sergeant Gilstrap’s deposition and served as the basis of questioning. No privilege-based objections were made, and Sergeant Gilstrap testified regarding their contents.

Nguyen is instructive in deciding whether defendants voluntarily waived the attorney-client privilege with respect to these documents. *149 In Nguyen opposing counsel deposed corporate executives regarding confidential communications with their lawyers. Nguyen, 197 F.3d at 206–07. The questioning pertained to the substance of the communications rather than simply to their general nature. Neither the executives nor the attorneys representing them objected, and the executives testified regarding the communications. Id. at 207. The court held that the attorney-client privilege was waived because neither the executives nor their attorneys asserted it. Id. Similarly, AHF deposed Sergeant Gilstrap about several of his email communications with Richie. As in Nguyen, the questions pertained to the substance of the emails. AHF’s counsel several times read or summarized an email and then asked Sergeant Gilstrap a question that fleshed out its meaning. See, e.g., P. App. 118–20 (excerpt of deposition of Sergeant Gilstrap). AHF’s counsel made it clear that he was inquiring about Sergeant Gilstrap’s communications with Richie, frequently mentioning her by name. See, e.g., id. at 120 (“Q. This is an email dated April 17th, 2006, from you to Jennifer Richie .... Q. Do you know what this is talking about?”). Further, two of the emails were clearly labeled as privileged under the attorney-client privilege, yet no objection was made when these documents were marked as exhibits and shown to Sergeant Gilstrap.5 See id. at 121–22 (Exhibit 34); 123–24 (Exhibit 37).

In sum, the deposition questions and exhibits provided sufficient notice of the possibility that privileged documents had been produced to AHF and that information regarding privileged communications was being sought. Therefore, the court concludes that defendants voluntarily waived the attorney-client privilege.6 See Crossroads Sys. (Tex.), 2006 WL 1544621, at © 2018 Thomson Reuters. No claim to original U.S. Government Works.

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AHF Community Development, LLC v. City of Dallas, 258 F.R.D. 143 (2009)

*2 (holding that failure to object at deposition to questions regarding privileged email document was not inadvertent where counsel should have been put on notice of the document’s privileged nature).

AHF’s October 31, 2008 motion for in camera inspection is granted, and the court holds that the documents in question either are not privileged or that the privilege was waived. AHF may therefore retain custody of the documents that are the subject of its motion and use them in this litigation.

SO ORDERED.

All Citations 258 F.R.D. 143 Footnotes 1

Pursuant to the parties’ stipulation, the court dismissed the claims against Richie hie without ut prejudice prejudi on o Sep September 29, 2008.

2

Because AHF brings its claims under the FHA, the court applies federal, al, rather than state, law aw of privilege. privileg privi See Fed.R.Evid. 501; ).

Willy v. Admin. Review Bd., 423 F.3d 483, 495 (5th Cir.2005).

3

These are identified as follows: COD ATTJ 01979 too COD C ATTJJ 01981; COD ATTJ 01987 to COD ATTJ 01988; COD D ATT AT J 03617; 3617; 617; COD ATTJ A J 03619 619 to COD ATTJ 03620; COD ATTJ 01954 COD ATTJ 01996 to COD ATTJ 01998; C it 27); COD ATTJ 01976 to COD A ATTJ 01977 (Exhibit 30); COD ATTJ 01941 (Exhibit 6); COD ATTJ 01997 (Exhibit (Exhibit 32); and COD ATTJ 019388 (Exhibit 33).

4

The court notes that new Fed.R.Evid. ed.R.Evid. 502, 502, which addresses, inter i alia, waiver of the attorney client privilege, took effect 2; Pub.L. No. No 110 322, 3 § 1(c) (2008) (providing that Rule 502 shall apply “insofar as is September 19, 2008. See Fed.R.Evid. 5502; just and practicable, able, le, in all proceedings pending on [the] [th date of enactment”). The court need not address Rule 502 specifically in deciding AHF’ss motion.

5

Additionally, a third rd email, Exhibit 6, was wa marked as an exhibit before the deposition but was also clearly labeled as privileged under the attorney client lient ent privilege pr and shown to Sergeant Gilstrap without objection. See P. App. 112, 116.

6

Based on this holding, tthe court need not address the parties’ arguments based on the Alldread factors, e.g., reasonableness of precautions taken to prevent disclosure, and amount of time taken to remedy the error. ***

End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

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CIRCUIT COURT Branch II

STATE OF WISCONSIN

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FILED 01-16-2019 Clerk of Circuit Court Racine County

RACINE COUNTY 2017CV001644

SANDRA J. WEIDNER, Petitioner, Case No. I7-CV-1644

Vs. CITY OF RACINE, a Wisconsin municipal corporation,

APR 23 2018

Respondent.

DECISION AND ORDER The above-styled matter was originally before this Court seeking a writ of mandamus and currently on the limited issue of determining what was and was not appropriately disclosed under a Wisconsin Public Records request. In view of the nature of these proceedings and this Court’s prior rulings, this matter remains under seal for reasons previously stated on the record. There is no dispute that a public records request was made by Ms. Weidner regarding specific emails, and there is further no dispute that City Attorney Letteney did not disclose any of those items requested based on “attorneyclient privilege.”

LAW Under the law, Wisconsin Public Records “any requester has a right to inspect any record” except otherwise provided by law, and “[e]ach authority, upon request for any record, shall as soon as practicable and without delay, either fill the request or notify the requester of the authority’s determination to deny the request in whole or in part and the reasons therefore.” Wis. Stat. § 19.35(1), (4)(a).

“The Wisconsin [Public] Records Law reflects the common law principles favoring access to public records that have long been recognized in Wisconsin.” Mayfair Chrysler-Plymouth, Inc. v. Baldarotta, 162 Wis.2d 142, 1

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155, 469 N.W.2d 638 (1991). This strong policy in favor of public access is expressed in Wis. Stat § 19.31, which reads in part: “[I]t is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them...To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.”

The strong presumption of public access may give way to statutory or specified common law exceptions, or, if there is an overriding public interest in keeping the record confidential. Portage Daily Register v. Columbia Cnty, Sheriff’s Dept., 2008 WI App 30, |11, 308 Wis.2d 357, 746 N.W.2d 525.

In the present case, the City Attorney provided Ms. Weidner with a written statement denying production of the requested documents alleging that they were all privileged under the attorney-client in “confidence” statutory privilege. That decision has been challenged by Ms. Weidner, and it is now incumbent upon this Court to determine if the requested material was or was not protected by the attorney-client privilege. John K. Maclver Inst. For Public Policy, Inc. v. Erpenbach, 2014 WI App 49.^14, 354 Wis.2d 61, 848 N.W.2d 862. In that context, this Court required the City to produce a “privilege log” as to the specific reasons the City believes the requested documents constitute attorney-client privileged materials. In that context, this Court has received an initial and supplemental log from the City and a Reply and Sur-Reply from Ms. Weidner.

The parties do not dispute that the attorney-client privilege and the attorney work product doctrine are recognized exceptions to the general rule of disclosure under a public records request. See Wisconsin Newspress, Inc. v.

School Dist. of Sheboygan Falls, 199 Wis.2d 768, 782, 546 N.W.2d 143 (1996); Seifert v. School Dist. ofSheboygan Falls, 2007 WI App 207,^27, 305 Wis.2d 582, 740 N.W.2d 177. ' There further is no dispute that the City of Racine bears the burden of showing that a privilege exists in this matter. Franzen v. Children’s Hosp. of Wisconsin, Inc., 169 Wis.2d 366, 386, 486 N.W.2d 603 (Ct.App. 1992).

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The attorney-client privilege, codified in Wis. Stat. §905.03, “protects confidential communications between clients and their attorneys.” Lane v.

Sharp Packaging Sys., Inc., 2002 WI 28, ^[21, 251 Wis.2d 68, 640 N.W.2d 788. The attorney-client privilege is narrowly construed, because the privilege is “an obstacle to the investigation of truth.” Id. “Wisconsin, like most jurisdictions, has recognized only a narrow ambit to the communications included within the attorney-client privilege.” State ex rel. Dndek v. Circuit Court for Milwaukee Cnty., 34 Wis.2d 559,579, 150 N.W.2d 387 (1967).

The attorney-client privilege “only encompasses confidential communications from the client to the lawyer, and those communications from the lawyer to the client, if their disclosure would directly or indirectly reveal the substance of the client's confidential communications to the lawyer.” State v. Boyd, 2011 WI App 25, H20, 331 Wis.2d 697, 797 N.W.2d 546. A “mere showing that the communication was from a client to his attorney is insufficient to warrant a finding that the communication is privileged.” Jax v. Jax, 73 Wis.2d 572, 581, 243 N.W.2d 831 (1976).

The privilege protects communications and not necessarily facts or evidence. Id. The communication must be confidential, and a communication is “confidential” only if it is “not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” Wis. Stat. § 905.03(l)(d).

Even if documents are otherwise subject to disclosure under a public records request, the attorney-client privilege may still apply. If the disclosure of correspondence from an attorney to a client would indirectly reveal the substance of the client’s confidential communications to the attorney, the privilege applies. Wisconsin Newspress, Inc. v. School Dist., 199 Wis.2d 768, 782, 546 N.W.2d 143 (1996).

A reviewing court should not rely on judgments of attorneys involved for their self-interested determination that privilege exists. Such assertion, when justified under the law, is a substantial justification for non- compliance with a discovery request [public records request]. In re Imposition of Sanctions in Alt v. Cline, 224 Wis.2d 72, 589 N.W.2d 21 (1999).

Wisconsin recognizes only those privileges provided by, inherent in, or implicit in statutes or in rules adopted by the Wisconsin Supreme Court such as the rules of Professional Responsibility that govern lawyers’ conduct.

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i

Wisconsin does not recognize common law privileges. Shibilski v. St. Joseph’s Hospital of Marshfield, Inc., 83 Wis.2d 459, 266 N.W.2d 264 (1978).

Wisconsin statute §905.11 provides the general rule for waiver of recognized privileges. Generally, waiver occurs whenever the holder of the privilege has voluntarily disclosed or consented to the disclosure of any significant part of the privileged matter, An inadveitent waiver by the holder constitutes a waiver as long as the waiver was voluntary. See Blinka, West’s Wisconsin Practice: Evidence 2d §511.1.

Under Wis. Stat. § 905.03(l)(a), the City of Racine, a Wisconsin municipal corporation, clearly falls within the definition of a “client.” Likewise, Attorney Scott Letteney, who bears the title of City Attorney, clearly meets the statutory definition of a “lawyer,” under Wis. Stat. § 905.03(l)(b). A definition found in Wis. Stat. §905,03(l)(d) is important to the present inquiry: “A communication is ‘confidential’ if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” The privilege is “owned” by the client-here the City or Racine by its collective representatives, the Common Council. The privilege may, however, be asserted by its counsel (City Attorney’s Office) until a determination of waiver can be made by the Common Council. A city attorney’s position is more akin to that of an in­ house counsel rather than a privately- retained attorney. The great body of law provided by the parties to the Court supports the proposition that their individual responsibilities regarding the attorney-client privilege is the same whether you are in-house or private counsel. See Shelton v. Am. Motors Corp., 805 F.2d 1323, 1326 (8th Cir. 1986); Rossi v.Blue Cross & Blue Shield, 540 N.E.2d 703, 705 (N.Y. 1989).

In Upjohn CO. v. United States, 449 U.S. 383,389, the United States Supreme Court decreed that the attorney-client privilege exists to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”

The sur-reply brief of Ms. Weidner attached two cases worth mentioning. In Minneapolis Star and Tribune Co., v. HRA, 310 Minn.313, 251 N.W.2d 620, (Minn. 1976) the Minnesota Supreme Court, in analyzing the attorney-client 4

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privilege, determined that it should be done on a “case-by-case” basis viewing the “detailed factual setting.” The case stated that “[t]he blind application of the attorney-client privilege in all such cases without guidelines or limitations would potentially jeopardize the public’s right to be informed as required by the Open Meeting Law ” The case stated that the open meeting law and the attorney-client privilege were capable of compatible and concurrent operation assuming that public officers and attorneys do not abuse their trust. They stated that the in-confidence communication must not be arbitrarily or unreasonably exercised. The decision then states that arriving at a decision required a delicate balancing of public interests and a review of the factual underpinnings of the then-existing facts. Insightful to the present case, the Minnesota Supreme Court stated, “A basic understanding of the adversary system dictates that certain phases of litigation strategy may be impaired if every discussion is available for the benefit of opposing parties who may have as a purpose a private gain in contravention to the public need ...” The Court continued, “The attorney-client exception discussed herein would almost never extend to the mere request for general legal advice or opinion by a public body in its capacity as a public agency.” However, they state, “It [the attorney-client privilege] will be upheld, however, if the balancing of these conflicting public policies dictates the need for absolute confidentiality.”

The other case of interest was AHF Community Development,LLC v. City of Dallas, 258 F.R.D. 143 (N.D.Texas 2009). The case involved email communications between city employees and the city attorney. In rejecting the application of the attorney-client privilege because they did not contain legal advice or confidential client communication, they found the following not privileged: • Emails containing logistical matters, e.g. setting dates and agendas for meetings, • Notes reflective of conversations the city attorney had with third parties.

• Notes regarding crime activity in the subject area.

• Identification of Dallas City Code provisions needed to be included in a contemplated repair agreement (although relating on a general level to preparation of a City agreement, the document bore no indication that the information provided, which contained mainly statutory text, was intended to be kept confidential).

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The case is critical and rejects an argument that suggests that any communications between employees and inside counsel that relate to the scope of the employee’s duties, and somehow assist inside counsel, fall within the attorney-client privilege. The privilege “protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.” Fisher v. United States, 425 U.S. 391, 403 (1976).

DISCUSSION In this background, even Ms. Weidner’s counsel agrees that, “The circumstance under which the attorney-client privilege applies in a municipal setting is far from clear.” Hinkston letter to Attorney Letteney dated September 5, 2017 citing Goodman & Zabokrtsky, The Attorney-Client Privilege and The Municipal Lawyer, 48 Drake L. Rev. 655,676 (2000). The article above discusses the Upjohn decision of the United States Supreme Court wherein it rejected the “control group test” in favor of adopting the “subject matter test.” It states “Therefore, the United States Supreme Court adopted the subject matter test, which expanded the amount of communication which may be protected by the attorney-client privilege in the corporate context. The subject matter test protects communications between lawyers and agents or employees of the corporation who are authorized to speak or act on behalf of the corporation in relation to the subject matter of the communication.” Mat 666-67.

In addition, this Court must view the “context” in which the open records demand was made. Undeniably, Ms. Weidner’s record request was made in the context of what she perceived as her “right” to participate in a request for an ethics opinion regarding propriety of forwarding emails from the City Attorney on to third parties not employees of the City of Racine. This Court has ruled that under the applicable city ordinances, she had no right of participation in the Board of Ethics review process. The Board of Ethics review was requested to determine the strength of the present ethical constraints on city representatives and any need for strengthening those rules.

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The City of Racine has a Code of Ethics that is applicable to Ms. Weidner in her capacity as a City Alderperson. Article Vll-Code of Ethics Sec. 2-576 et seq. Of note are the following provisions: Sec. 2-577. - Policy: (a) The purpose of this code is to establish guidelines for ethical standards of conduct for all city officials and employees by setting forth those acts or actions which are incompatible with the best interests of the city and by requiring such officials and employees to disclose personal interests, financial or otherwise, in matters affecting the city.

Confidential Information means written or oral information related to city government, which is not otherwise subject to the public records law and which is expressly designated or marked as confidential.

Privileged information means information obtained under government authority which has not become part of the body of public information.

Sec. 2-581. - Prohibited conduct (a)...They shall not disclose confidential information or Privileged information gained in the course of, or by reason of, his/her official position or official activities.

In this context Ethics for

Redacted Pursuant to 1.9.19 Oral Decision

Redacted Pursuant to 1 9 19 Oral Decision

were submitted to the City of Racine Board of an advisory opinion. The file reflects that all

Redacted Pursuant to 1.9.19 Oral Decision^ Pursuant to 1-9-19 Oral Decisi°n Redacted Pursuant to 1 9 19 Oral Decision

sent to the City of Racine Board of Ethics on December 4, 2017. (Letteney affidavit 12-21-17 Exhibit G) It appears that Ms. Weidner made her open records request on September 5, 2017 so that she could use the materials in her claimed right to participate in any review by the Board of Ethics. (Hinkston letter to Letteney September 5, 2017) It appears that all alderpersons received copies of the redacted submissions provided to the Board of Ethics on December 4, 2017. The record reflects that the present action initially for mandamus was commenced on December 1, 2017 and by the time of the first hearing before this Court, Ms. Weidner conceded receipt of the requested items,Redacted Pursuant to t-9-19 °ral Decisi on 7

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Attorney Letteney’s transmittal letter to the City of Racine Board of Ethics contains a Redacted Pursuant to i.9.,;e9afOrdaPrjSiS,ios!,9il9 Oral Decision

Redacted Pursuant to 1.9.19 Oral Decision

Redacted Pursuant to 1.9.19 Oral Decision

}

LI 1C

flU/l

V/Uuimwii.u

SCR 20:1.13(b) demands that under the stated situation “the lawyer shall proceed as is reasonably necessary in the best interests of the organization including consultation with a higher authority in the organization. The operative verb is “shall” Redacted Pursuant to L9-19 Oral Decisi°n Redacted PursRedacted Pursuant to 1919 Oral ^Rp^-ted Pursuant to 1.9.19 Oral Decision .-.■.-^.^Redacted Pursuant to 1.9.19 Oral Dedsion although that Redacted Pursuant to 1.9.19 Oral Decision term does not exist in the rule adopted in Wisconsin. i Redacted Pursuant to 1.9.19 Oral DewJlon^ Pursuant to L9-19 Oral Decision “[9] The duty defined in this Rule applies to governmental organizations. Defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context and is a matter beyond the scope of these Rules.”

The foregoing is consistent with the legal authorities referenced by the parties.

Indeed, this fact is conceded by Attorney Letteney when he states ^

w Redacted Pursuant to 1.9.19 Oral Decision

RRedaclexd, Pursuant to 1.9.19 Oral Decision The Court, for simplicity sake, references the targeted communications by reference to Attorney Letteney’s affidavit, Exhibit G, pages 1 through 48. lof 48

Privileged

Content references internal processing of a pending claim.

2-3 of 48

Privileged

Content references legal advice regarding changes to a City ordinance.

4-5 of 48

Privileged

Content references confidential thought process regarding retention of outside counsel. This Court rejects the ombudsman argument.

8

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6 of 48

Privileged

Content references legal opinions of City Attorney regarding closed sessions.

7 of 48

Not Privileged

Content requests a copy of the resolution creating the Redevlopment Authority and its composition. Nothing about this email or its content reflects legal processes or thoughts.

8 of 48

Privileged

While this Court finds the providing or the statute is not privileged, the forwarding of ; is attorney work-product and, therefore, reflects legal thoughts of the City Attorney on that subject.

Redacted Pursuant to 1.9.19 Oral

9-10 of 48

Privileged

The content sought insight to legal reasoning of the City Attorney regarding the contract.

11-12 of 48

Privileged

While providing City Ordinances are not privileged, the inclusion Redacted Pursuant to 1.9.19 Oral Decision is work product.

Red-'Cled Pursuant to 1 9 19 o,,,l Decision

Redacted Pursuant to 1.9.19 Oral Decision

13-19 of 48

Privileged

20-22 of 48

Privileged

23-25 of 48

Not Privileged

The document reflects copies of City ordinances without any legal analysis.

26-28 of 48

Privileged

Content discusses City resolution of ongoing litigation andRedacted Pursuant to 1-9-19 Oral Decision

Content reflects legal analysis and opinion.

Content reflects legal analysis of contract Redacted Pursuant to 1.9.19 Oral Decision

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29-30 of 48

Not Privileged

See Ruling on 7 of 48 above.

31-39 of 48

Not Privileged

Content fully disclosed at the Committee of the Whole meeting of July 18,2017, videotaped, and available for public viewing on the City of Racine website. There exists no expectation of confidentiality.

40 of 48

Not Privileged

Content fully disclosed at the Committee of the Whole meeting June 29, 2017, videotaped and available for public viewing on the City of Racine website. There exists no expectation of confidentiality.

41-43 of 48

Privileged

Content contains federally protected Health Information (HIPPA) and a confidential communication possibly leading to legal exposure to the City.

44-47

Privileged

of 48

48 of 48

Privileged

Content contains reflects thoughts and processes regarding various ongoing legal matters involving the City or Racine.

Content asks for legal opinion and analysis from the City Attorney.

In summary, this Court finds eleven of the sixteen items requested to be privileged as asserted by the City Attorney. Two of the items designated not privileged (item 7 of 48 and 29-30 of 48) essentially represent the same item.

Item 23-35 of 48 reflects copies of City ordinances. 31-39 and 40 of 48 represent Power Point presentations which were fully accessible on the City of Racine website, according to Ms. Weidner’s counsel.

Ms. Weidner seeks attorney fees, damages, and costs under Wis. Stat. § 19.37(2) for the City’s failure to comply with her open records request.

Arguably, she claims that the present action for Mandamus was required to secure release of the records requested. However, the record reflects that she 10

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received a complete copy of the items forwarded to the Board of Ethics three days after the filing of the present action. Redacted Pursuant to 1.9.19 Oral Decision

Redacted PursUant^^dPu/.uj.ni 90 O^a^iCSSOr Redacted Pursuant to 1.9.19 Oral DeCiSi0ncted Pursuant t0 1919 Oral DeciS‘

Accordingly, this Court does not find that the present action was the catalyst for compliance in production of records by the City of Racine. As previously pointed out, Ms. Weidner had access to the redacted version of the documents four days after the filing of the present action, and that issue then became moot.

R1RdedeadCPtUrS1uaPtU0T9ai19totrSl Dec9si0n9 Oral Decision

In determining if costs should be assessed, this Court must find that Ms. Weidner prevailed in whole or in substantial part in any action filed. From a purely mathematical perspective, Ms. Weidner has not attained this mark, and the request for disclosure of the referenced items was aborted by Ms. Weidner at the first hearing before this Court.

While the underlying reason for an open records request is not legally important, it does factor into the City Attorney’s mental rubric in weighing the potential harm to the public interest vs. the legislative policy favoring inspection. Attorney Letteney, having found himself in the unenviable Redacted^ 1 "D ^ -9 '9 o™i Decision position

Pursuant to 1.9.19 Oral Decision Redacted PRedacted uisuani i° '.9.19 Oral Decision

»Pus^""nLfoec1s.9-19 Oral Decision

In

addition, the records request was tethered to a declaration by Ms. Weidner that she had a right to participate in the Board of Ethics request. She did not.

While this Court has found a number of the requested items to not be privileged, that process was by no means a simple one for the Court. There exists very little guidance to assist a municipal counsel, given the broad scope of employment duties, in assisting in these decisions. The individual party’s legal submissions to this Court bear this out.

11

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Accordingly, the Court does find five of the requested items to not be protected by attorney-client privilege or other asserted privilege, but does not find that the present litigation prevailed in whole or in substantial part in securing production of the items as they had already been provided or were fully accessible on the City website.

Having so found, this Court finds no basis for imposing any mandatory award of attorney fees, damages, or actual costs pursuant to Wis. Stat. ยง 19.37(2).

Dated this 23rd day of April, 2017

Hon. Eugene A. Gasiorkiewicz

12

FILED 05-16-2018 Clerk of Circuit Court Racine County 2017CV001644

STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY ______________________________________________________________________________ SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent. ______________________________________________________________________________ NOTICE OF ENTRY OF FINAL ORDER FOR JUDGMENT IN THE CITY OF RACINE’S FAVOR DISMISSING THE CASE IN ITS ENTIRETY WITH PREJUDICE ____________________________________________________________________________ PLEASE TAKE NOTICE that on the 16th day of May, 2018, an Order for Judgment in the City of Racine’s Favor Dismissing the Case in its Entirety with Prejudice (“Final Order”) was entered in the above-captioned action. A copy of the Final Order is attached hereto as Exhibit A and incorporated by reference.

This notice is made pursuant to Wis. Stat. § 808.04.

Dated this 16th day of May, 2018.

MEISSNER TIERNEY FISHER & NICHOLS S.C.

By: Electronically signed by Michael J. Cohen Michael J. Cohen State Bar No. 1017787 Email: mjc@mtfn.com Dieter J. Juedes State Bar No. 1088880 Email: djj@mtfn.com 111 East Kilbourn Avenue, 19th Floor Milwaukee, WI 53202 Tel: 414-273-1300 Fax: 414-273-5840 Attorneys for Respondent, City of Racine

FILED 05-16-2018 Clerk of Circuit Court Racine County 2017CV001644

STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY ______________________________________________________________________________ SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent. _______ ______ ______________________________________________________________________________

D E

ORDER FOR JUDGMENT IN THE CITY OF RACINE’S FAVOR DISMISSING THE E’S FAVO DISMI SM CASE IN ITS ENTIRETY WITH PREJUDICE ITH TH PREJUD PR ICE ____________________________________________________________________________ _______________________ _________________

L A

On April 23, 2018, the Court issued its Decision and Order related to the privileged nature of the correspondence tha thatt are the subject of the City of Racine’s (“City”) request for an

E S

ethics advisory opinion Weidner’s (“Petitioner Weidner”) request for inion and Petitioner etitioner Sandra S W attorney fees and Stat. § 19.37(2). For the reasons more fully stated in the nd costs under Wis. Stat April 23, 2018 Decision (“Decision and Order”), which is incorporated herein by cision and Order O reference, Petitioner Weidner’s request for attorney fees, damages, or actual costs under Wis. Stat. § 19.37(2) is denied.

Previously, on March 14, 2018, the Court ordered “[t]he City’s Motion to Quash is granted as it relates to Petitioner Weidner’s request for a writ requiring that the City provide her with any and all documentation (information) it alleges or submits to the Ethics Board in support of its request of the Board for an advisory opinion.” (Mar. 14, 2018 Order ¶ 1.) It further ordered that “[t]he City’s Motion to Quash is granted as it relates to Petitioner Weidner’s request for a writ allowing her an appropriate opportunity to submit to the Board [of Ethics] her position before it on such documentation and her actions relative thereto.” (Id. ¶ 2.)

2044805.1

EXHIBIT A

Given the Court’s prior Orders of March 14, 2018 and April 23, 2018, any other forms of relief sought by Petitioner Weidner in her Petition not yet addressed by the Court, namely, (1) reasonable attorney fees and costs incurred by her in participating in the Ethics Board inquiry and proceedings under Wis. Stat. § 895.46(1)(a) and (2) punitive damages under Wis. Stat. § 19.37(3), are moot and/or without merit, and therefore, denied.

Accordingly, the Court Orders as follows: 1.

The Decision and Order shall remain sealed. The City Board of Ethics shall not

be provided with a copy of the Decision and Order or be advised contents. The City ised sed of its con

D E

Attorney shall advise the Board of Ethics that the circuitt court matter m matterr has concluded conclu conclude and that the Court’s Decision and Order is sealed. Becausee the Court found that Alderperson Alderpers Weidner has no Alderper

L A

right to participate in the Board off Ethics advisory opinion proc process, the City Attorney shall advise the Board of Ethicss that iit is not ot to consider any communications previously made by

E S

Alderperson Weidner Board of Ethics in its decision and shall remove all eidner idner or her counsel to the Boa such communications cations ations from its file.

2.

Thee Court ssh shall retain jurisdiction to review the Court’s decision to seal the

Decision and Order only under the limited circumstances of the filing of a public ethics complaint under Racine Ordinance § 2-584 involving any of the communications that were the subject of the Court’s Decision and Order.

3.

Judgment is hereby entered in the City’s favor dismissing this case in its entirety

with prejudice.

4.

This is a final order for purposes of appeal under Wis. Stat. § 808.03(1).

Dated this 16th day of May, 2018

BY THE COURT: Electronically signed by Eugene A Gasiorkiewicz Circuit Court Judge

2 2044805.1 Case No. 17-CV-1644

FILED 05-16-2018 Clerk of Circuit Court Racine County 2017CV001644

STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY ______________________________________________________________________________ SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent. ______________________________________________________________________________ ORDER FOR JUDGMENT IN THE CITY OF RACINE’S FAVOR DISMISSING THE CASE IN ITS ENTIRETY WITH PREJUDICE ____________________________________________________________________________ On April 23, 2018, the Court issued its Decision and Order related to the privileged nature of the correspondence that are the subject of the City of Racine’s (“City”) request for an ethics advisory opinion and Petitioner Sandra Weidner’s (“Petitioner Weidner”) request for attorney fees and costs under Wis. Stat. § 19.37(2). For the reasons more fully stated in the April 23, 2018 Decision and Order (“Decision and Order”), which is incorporated herein by reference, Petitioner Weidner’s request for attorney fees, damages, or actual costs under Wis. Stat. § 19.37(2) is denied.

Previously, on March 14, 2018, the Court ordered “[t]he City’s Motion to Quash is granted as it relates to Petitioner Weidner’s request for a writ requiring that the City provide her with any and all documentation (information) it alleges or submits to the Ethics Board in support of its request of the Board for an advisory opinion.” (Mar. 14, 2018 Order ¶ 1.) It further ordered that “[t]he City’s Motion to Quash is granted as it relates to Petitioner Weidner’s request for a writ allowing her an appropriate opportunity to submit to the Board [of Ethics] her position before it on such documentation and her actions relative thereto.” (Id. ¶ 2.)

2044805.1

Given the Court’s prior Orders of March 14, 2018 and April 23, 2018, any other forms of relief sought by Petitioner Weidner in her Petition not yet addressed by the Court, namely, (1) reasonable attorney fees and costs incurred by her in participating in the Ethics Board inquiry and proceedings under Wis. Stat. § 895.46(1)(a) and (2) punitive damages under Wis. Stat. § 19.37(3), are moot and/or without merit, and therefore, denied.

Accordingly, the Court Orders as follows: 1.

The Decision and Order shall remain sealed. The City Board of Ethics shall not

be provided with a copy of the Decision and Order or be advised of its contents. The City Attorney shall advise the Board of Ethics that the circuit court matter has concluded and that the Court’s Decision and Order is sealed. Because the Court found that Alderperson Weidner has no right to participate in the Board of Ethics advisory opinion process, the City Attorney shall advise the Board of Ethics that it is not to consider any communications previously made by Alderperson Weidner or her counsel to the Board of Ethics in its decision and shall remove all such communications from its file.

2.

The Court shall retain jurisdiction to review the Court’s decision to seal the

Decision and Order only under the limited circumstances of the filing of a public ethics complaint under Racine Ordinance § 2-584 involving any of the communications that were the subject of the Court’s Decision and Order.

3.

Judgment is hereby entered in the City’s favor dismissing this case in its entirety

with prejudice.

4.

This is a final order for purposes of appeal under Wis. Stat. § 808.03(1).

Dated this 16th day of May, 2018

BY THE COURT: Electronically signed by Eugene A Gasiorkiewicz Circuit Court Judge

2 2044805.1 Case No. 17-CV-1644

FILED 06-20-2018 Clerk of Circuit Court Racine County

STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY 2017CV001644 ______________________________________________________________________________ SANDRA J. WEIDNER, Petitioner, vs.

Case No. 17-CV-1644 CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent. ______________________________________________________________________________ NOTICE OF APPEAL ______________________________________________________________________________ Notice is hereby given that Petitioner, Sandra J. Weidner, appeals to the Court of Appeals, District II, from the Order For Judgment In The City Of Racine’s Favor Dismissing The Case In Its Entirety With Prejudice, entered on May 16, 2018 in the Circuit Court for Racine County, the Honorable Eugene A. Gasiorkiewicz, presiding, wherein the Court, based on (and incorporating) its Decision and Order dated April 23, 2018, denied Petitioner Weidner’s request for attorney’s fees, damages, or actual costs under § 19.37(2), Wis. Stats. and dismissed the case in its entirety with prejudice.

This is not an appeal within § 752.31(2), Wis. Stats. This is not an appeal to be given preference in the circuit court or court of appeals pursuant to statute.

Dated this 20th day of June, 2018.

KNUTESON, HINKSTON & QUINN, S.C. Attorneys for Petitioner, Sandra J. Weidner

By: Electronically signed by Mark R. Hinkston Mark R. Hinkston State Bar No. 1022427 Email: mhinkston@sbcglobal.net 500 College Avenue Racine, WI 53403 Telephone: (262) 633-2000 Fax: (262) 633-9900

Office of the Clerk

WISCONSIN COURT OF APPEALS 110 East Main Street, Suite 215 P.O. Box 1688 Madison, Wisconsin 53701-1688 Telephone (608) 266-1880 TTY: (800) 947-3529 Facsimile (608) 267-0640 Web Site: www.wicourts.gov

JUL lf> 2018

DISTRICT II July 12, 2018 To: Hon. Eugene A. Gasiorkiewicz Circuit Court Judge Racine County Courthouse 730 Wisconsin Avenue Racine, WI 53403

Michael J. Cohen Dieter J. Juedes Meissner Tierney Fisher & Nichols, S.C. 111 E. Kilboum Ave., Ste. 1900 Milwaukee, WI 53202-6622

Samuel A. Christensen Clerk of Circuit Court Racine County Courthouse 730 Wisconsin Avenue Racine, WI 53403

Mark R. Hinkston Knuteson, Hinkston & Quinn, S.C. 500 College Ave. Racine, WI 53403

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You are hereby notified that the Court has entered the following order: 2018AP1189

Sandra J. Weidner v. City of Racine (L.C. # 2017CV1644)

Before Reilly, P.J.

The appellant moves to immediately seal all pleadings from the underlying circuit court action submitted to this court in conjunction with the initiation of this appeal, including the notice of appeal and the circuit court’s decision and orders attached to the appellant’s docketing statement.

The respondent joins in the motion and also asks that we seal the docketing

statement.

Additionally, the parties ask that we order sealed (1) “any pleadings from the

underlying circuit court action hereinafter filed [in this court] in conjunction with this appeal,” (2) the transcripts of circuit court hearings, and (3) the parties’ appellate briefs and appendices.

In effect, the parties seek to seal this court’s entire file.

No. 2018AP1189

The public policy of this state generally favors open records. See State ex rel Bilder v.

Twp. of Delevan, 112 Wis. 2d 539, 553-54, 334 N.W.2d 252 (1983). It is presumed that all public records shall be option to the public. See State ex rel State v. Unnamed Person No, 1 v.

State, 2003 WI 30, ^66, 260 Wis. 2d 653, 660 N.W.2d 260. However, “[t]he circuit court under its inherent power to preserve and protect the exercise of its judicial function of presiding over the conduct of judicial proceedings has the power to limit public access to judicial records when the administration of justice requires it.” Bilder, 112 Wis. 2d at 556. The party seeking to close records bears the burden of showing that the administration of justice so requires, and it is

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generally the circuit court that should initially decide if the reasons asserted suffice. See id, at 556-57.

In this case, the circuit court determined that it was appropriate to seal the circuit court file, “including all records and docket entries.” The parties agree that confidentiality should be maintained in this court. Based on the circuit court’s decision to seal its entire record and the

S

parties’ agreement, we conclude it is appropriate to seal this court’s file. As such, any submission to this court, including the appellate briefs, will be sealed.

As a caveat, the record is presently in the circuit court. Any request that the transcripts be filed under seal should be directed to the circuit court.

Finally, sealing our records will not withhold our eventual decision from public release.

The respondent requests that “[i]f at all possible, ... the decision be issued in such a way as to protect the confidential and privileged matters involved in this appeal.” This “request” is not a motion; it provides this court no guidance or authority and demands no specific relief. We take no action on the respondent’s general request. Therefore,

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No. 2018AP1189

IT IS ORDERED that this court’s file in appeal No. 2018AP1189, including all filings, future submissions and briefs, the docket, and the electronic docket, is hereby sealed until further order of this court.

Sheila T. Reiff Clerk of Court ofAppeals

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Case 2017CV001644

Document 75

Filed 09-21-2018

Page 1 of 2 FILED 09-21-2018 Clerk of Circuit Court Racine County

STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY 2017CV001644 ______________________________________________________________________________ SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent. ______________________________________________________________________________ RESPONDENT CITY OF RACINE’S NOTICE OF MOTION AND MOTION FOR AN EMERGENCY HEARING AND FOR SANCTIONS ON PETITIONER SANDRA J. WEIDNER’S CONTEMPT OF COURT FOR VIOLATING THE COURT’S SEAL ORDERS ____________________________________________________________________________ PLEASE TAKE NOTICE that the Respondent City of Racine (“City”), by and through its attorneys, Meissner Tierney Fisher & Nichols S.C., moves this Court, the Honorable Eugene A. Gasiorkiewicz presiding, to hold an emergency hearing, at a date and time set by the Court, and for an Order of sanctions on Petitioner Sandra J. Weidner’s Contempt of Court for Violating the Court’s Seal Orders.

Grounds for said motion are stated in the accompanying City’s Brief in Support of its Motion for an Emergency Hearing and for Sanctions on Petitioner Sandra J. Weidner’s Contempt of Court for Violating the Court’s Seal Orders and Affidavit of Michael J. Cohen in support of the same and exhibits attached thereto.

Dated this 21st day of September 2018.

MEISSNER TIERNEY FISHER & NICHOLS S.C. By: Electronically signed by Michael J. Cohen Michael J. Cohen State Bar No. 1017787 Email: mjc@mtfn.com

1972006.1

Case 2017CV001644

Document 75

Filed 09-21-2018

Page 2 of 2

Dieter J. Juedes State Bar No. 1088880 Email: djj@mtfn.com 111 East Kilbourn Avenue, 19th Floor Milwaukee, WI 53202 Tel: 414-273-1300 Fax: 414-273-5840 Attorneys for Respondent, City of Racine

2 1972006.1