By a 5-2 vote, on January 17, 2025, the Wisconsin Supreme Court vacated a District II Court of Appeals decision holding that county registers in probate must provide, in response to requests under Wisconsin’s public records law, copies of Notice of Voting Eligibility (“NVE”) forms—court records relating to determinations of the competency of individuals to vote that are otherwise sealed from the public and protected from disclosure by Wisconsin law.  In Wisconsin Voter Alliance v. Secord, 2025 WI 2, the supreme court addressed the appeal of Kristina Secord, the register in probate for Walworth County, of a District II Court of Appeals holding that Wisconsin’s Public Records Law, Wis. Stat. § 19.31, overrides the privacy protections contained in Wisconsin’s guardianship statutes, Chapter 54, and more specifically, the exemptions from public disclosure in Wis. Stat. § 54.75.

The District II Court of Appeals had held that the circuit court erred in dismissing the petition for writ of mandamus filed by the Wisconsin Voter Alliance (“WVA”) and Ron Heuer, WVA’s president, whose request for NVE forms Secord had denied under the Public Records Law. Wisconsin Voter Alliance v. Secord, No. 2023AP36, unpublished slip op., ¶41 (Wis. Ct. App. Dec. 27, 2023). In so holding, District II reached a different conclusion on the same issue than the District IV Court of Appeals, which had previously held (in the appeal of another public records request for NVE forms that WVA and Heuer had served on a different county’s register in probate) that NVE forms fall within the statutory exemption from the Public Records Law provided in Wis. Stat. § 54.75. Wisconsin Voter Alliance v. Reynolds, 2023 WI App 66, 410 Wis. 2d 335, 1 N.W.3d 748.

For now, at least, Reynolds remains controlling law in Wisconsin, and consequently, NVE forms are protected from disclosure under the Public Records law by the exception contained in Wis. Stat. 54.75.

The issue, however, is not fully resolved, as in WVA v. Secord, the majority declined to reach the merits of whether the NVE forms are exempted from public records requests by section 54.75. Instead, the supreme court held that District II erred by violating the rule announced in Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997). Justice Protasiewicz wrote for the majority that “while the court of appeals is comprised of four districts that sit in different parts of the state, it is a unitary court, not four separate courts”; “[o]fficially published opinions of the court of  appeals are precedential and have statewide effect”; and that “[t]herefore, only the supreme court may overrule, modify, or withdraw language from a published court of appeals opinion.” Secord, 2025 WI 2, ¶ 32. Consequently, the supreme court held that “[w]hen the court of appeals disagrees with a prior published court of appeals opinion, it has two and only two options. It may certify the appeal to this court and explain why it believes the prior opinion is wrong. Or it may decide the appeal, adhering to the prior opinion, and explain why it believes the prior opinion is wrong.” Id., ¶3. Indeed, the supreme court noted that when a case before a court of appeals presents even “so much as a ‘perceived conflict’ in case law,” the court of appeals should certify the appeal to the supreme court and highlight the concern. Id., ¶36. By “rendering multiple holdings that directly conflict with Reynolds,” the supreme court held that “[t]he District II majority unmistakably violated Cook’s instructions.” Id., ¶3. It, therefore, reversed the court of appeals without reaching the merits and remanded the case to the court of appeals.

Justice Hagedorn concurred, writing separately to address two points. First, Justice Hagedorn wrote separately “to clarify the unique way mandamus applies in public records cases.” Id., ¶42. Noting that the standard for issuing a common law writ of mandamus typically requires the petitioner to make four separate showings—a clear legal right to the relief; a positive and plain duty by the official; substantial damages; and no other adequate remedy at law, id.—the “broad rights” and expedited procedures under the Public Records Law, Wis. Stat. §§ 19.35(1)(a), (4)(a), have caused courts to apply a “streamlined mandamus approach in public records cases,” id., ¶45. Under that streamlined approach, Justice Hagedorn observed, “[a]ssuming the first requirement is met—that is, the requester has a right to the records—the custodian has no discretion to withhold records,” id. ¶47, and none of the other three prongs of the common law mandamus standard need be established by the requester or may be considered by the court, id., ¶50.

Second, Justice Hagedorn addressed Cook v. Cook, expounding on his view that “Cook’s approach is not commanded by the Wisconsin Constitution,” and that “[t]here are good reasons to think that alternative approaches are worth consideration.” Id., ¶ 55. Consistent with the view he had “expressed many times,” Justice Hagedorn stated that “allowing cases to work their way through the court of appeals is, absent unusual circumstances, the best way to ensure novel and important legal questions are thoroughly vetted.” Id., ¶58. Consequently, rather than giving a court of appeals only the two choices under the Cook approach, Justice Hagedorn suggested that en banc review in the court of appeals might provide clarity in the law and supply “the thoughtful input of our judicial colleagues.” Id., ¶¶56, 58.

Justice Rebecca Grassl Bradley, joined by Chief Justice Annette Kingsland Ziegler, dissented, writing that, in their view, the court should have decided the case on the merits.

Although the case has been remanded to the District II Court of Appeals, that court may now only either certify the case to the supreme court or issue a holding consistent with Reynolds as the controlling authority and explain why it disagrees.


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