Peter Bernegger v. Electronic Registration Information Center Inc.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 27, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP168 Cir. Ct. No. 2023CV157

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

PETER BERNEGGER,

PLAINTIFF-APPELLANT-CROSS-RESPONDENT,

V.

ELECTRONIC REGISTRATION INFORMATION CENTER INC.,

DEFENDANT-RESPONDENT-CROSS-APPELLANT.

APPEAL and CROSS-APPEAL from an order of the circuit court
for Waupaca County: TROY L. NIELSEN, Judge. Affirmed; cross-appeal
dismissed.

Before Kloppenburg, P.J., Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2024AP168

¶1 PER CURIAM. In this public records case, Peter Bernegger
requested numerous documents from the Electronic Registration Information
Center, Inc. (“ERIC”). ERIC refused to provide any documents to Bernegger,
asserting that it is not an “authority” subject to Wisconsin’s public records law,
WIS. STAT. §§ 19.31-.39 (2021-22).1 Based on this response, Bernegger filed a
petition (the “complaint”) seeking a declaration of his rights with respect to the
requested documents, a mandamus order directing ERIC to produce the requested
documents, and punitive damages. After ERIC did not timely file an answer to the
complaint, Bernegger filed a motion for default judgment. ERIC filed a brief
opposing Bernegger’s motion for default judgment arguing, in part, that the
complaint fails to state a claim on which relief may be granted because ERIC is
not an authority subject to the public records law. Separately, ERIC filed a motion
to dismiss the complaint for improper service and lack of personal jurisdiction.

¶2 The circuit court denied ERIC’s motion to dismiss for improper
service. The court also denied Bernegger’s motion for default judgment and
dismissed the complaint on the ground that the complaint fails to state a claim on
which relief may be granted, concluding that the complaint “does not contain
allegations” showing that ERIC is a “quasi-governmental corporation” which is
defined as an authority in Wisconsin’s public records law. See WIS. STAT.

1
Although the parties at times refer to this statute as the “open records law,” we follow
our supreme court in using the term “‘public records law’ in order to avoid confusion with the
open meetings law.” Journal Times v. City of Racine Bd. of Police & Fire Comm’rs, 2015 WI
56, ¶2 n.4, 362 Wis. 2d 577, 866 N.W.2d 563.

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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§ 19.32(1) (defining an “authority” as including a “quasi-governmental
corporation”).

¶3 Bernegger appeals the circuit court’s order denying his motion for
default judgment and dismissing his complaint. Bernegger argues that the court
erred by addressing his motion for default judgment without providing notice and
an opportunity to be heard, and by considering material outside the complaint.
Alternatively, Bernegger argues that the court erred when it denied his motion for
default judgment and dismissed the complaint on the ground that the complaint
fails to state a claim on which relief may be granted, specifically that the
complaint fails to contain allegations showing that ERIC is a quasi-governmental
corporation subject to Wisconsin’s public records law. ERIC cross-appeals,
arguing that the court erred in determining that ERIC was properly served and,
accordingly, that it had personal jurisdiction over ERIC.

¶4 We conclude that Bernegger has forfeited his argument that the
circuit court erred by addressing his motion for default judgment without
providing notice and an opportunity to be heard. We further conclude, on our de
novo review, that the complaint fails to state a claim on which relief may be
granted because it fails to allege facts that, taken as true, show that ERIC is a
quasi-governmental corporation subject to Wisconsin’s public records law.
Because we conclude that the court’s denial of the motion for default judgment
and dismissal of the complaint were appropriate on this ground, we need not
address either Bernegger’s argument that the court erred by considering material
outside the complaint or ERIC’s argument that it was not properly served, and we
do not consider those arguments further. See Walgreen Co. v. City of Madison,
2008 WI 80, ¶2, 311 Wis. 2d 158, 752 N.W.2d 687 (noting that when resolution of

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one issue is dispositive, we need not reach other issues raised by the parties).
Accordingly, we affirm.

BACKGROUND

¶5 The following primarily procedural facts are undisputed.

¶6 Between November 2021 and May 2023, Bernegger sent eight
emails to ERIC requesting documents pursuant to Wisconsin’s public records
law.2 ERIC either did not respond to Bernegger’s emails or responded that ERIC
is a nonprofit organization not subject to Wisconsin’s public records law. On
June 21, 2023, Bernegger filed a complaint seeking to enforce the public records
law against ERIC, which Bernegger alleged is a nonprofit organization with an
address in Washington, D.C. On June 28, 2023, Bernegger faxed written
discovery requests, which included requests for admissions, to the fax number
listed on ERIC’s website.

¶7 On August 15, 2023, by which time ERIC had not filed an answer to
the complaint or responded to Bernegger’s discovery requests, Bernegger filed a
motion for default judgment against ERIC along with a supporting brief and ten
exhibits. After filing a special notice of appearance, ERIC filed a brief in
opposition to Bernegger’s motion for default judgment, arguing that Bernegger
failed to satisfy the standards for default judgment because: (1) Bernegger failed
to properly serve ERIC; and (2) ERIC is not an authority subject to Wisconsin’s

2
Bernegger also referenced federal laws including the Freedom of Information Act, but
he bases his arguments on appeal only on Wisconsin’s public records law. Accordingly, we do
not mention federal law further.

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No. 2024AP168

public records law, and, therefore, the complaint fails to state a claim on which
relief may be granted.

¶8 On September 29, 2023, ERIC filed a notice of motion and motion
to dismiss the complaint for improper service and lack of personal jurisdiction,
along with a supporting affidavit. The notice of motion indicated that the motion
was scheduled for a hearing on October 19, 2023. Bernegger filed a brief in
opposition to the motion, along with supporting affidavits and exhibits, arguing
that he complied with the requirements for service on a foreign corporation set
forth in WIS. STAT. § 801.11(5)(a). Bernegger and ERIC each also filed a motion
for leave to file additional documents. Each party opposed the other’s motion for
leave. Bernegger also filed a “notice” in which he asserted that his requests for
admission were deemed admitted.

¶9 At the motion hearing on October 19, 2023, the circuit court told the
parties that it would “work through” all of the motions that had been filed, not just
ERIC’s motion to dismiss for improper service. Neither party objected to this
manner of proceeding. The court first heard argument from Bernegger and ERIC
on their respective motions for leave to file additional documents and granted both
motions. The court next heard argument on ERIC’s motion to dismiss for
improper service and took that matter under advisement. The court then addressed
Bernegger’s motion for default judgment. Both parties made arguments for or
against the motion. ERIC focused its argument on its contention that the
complaint fails to state a claim on which relief may be granted because ERIC is
not a quasi-governmental corporation subject to Wisconsin’s public records law.
Bernegger asserted that ERIC is a quasi-governmental corporation. Both parties
referenced facts not alleged in the complaint. The court took the motion for
default judgment under advisement as well.

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¶10 In January 2024, the circuit court issued a written order addressing
the motions that it had taken under advisement. The court denied ERIC’s motion
to dismiss for improper service, concluding that Bernegger properly served ERIC
under WIS. STAT. § 801.11(5). The court denied Bernegger’s motion for default
judgment and dismissed the complaint on the ground that the complaint fails to
state a claim on which relief may be granted, accepting ERIC’s arguments that the
complaint “does not contain allegations” showing that ERIC is a quasi-
governmental corporation subject to Wisconsin’s public records law. Specifically,
the court explained: “If the Court accepts ERIC’s arguments” that the complaint
“does not contain allegations [on which relief] can be granted as a matter of law,”
then “the case should also be dismissed as [the complaint] would fail to state a
claim [on] which relief may be granted.” The court did not address Bernegger’s
“notice” that his requests for admission were deemed admitted.

¶11 This appeal and cross-appeal follow.

DISCUSSION

¶12 As stated, we address in this opinion Bernegger’s arguments that the
circuit court erred by: (1) addressing his motion for default judgment without
providing notice and an opportunity to be heard, and (2) then denying his motion
for default judgment and dismissing the complaint based on its conclusion that the
complaint “does not contain allegations” showing that ERIC is a quasi-

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governmental corporation subject to Wisconsin’s public records law and,
therefore, fails to state a claim on which relief may be granted.3

¶13 We first explain our conclusion that Bernegger has forfeited his
argument that the circuit court erred by addressing his motion for default judgment
without providing notice and an opportunity to be heard. We next explain our
conclusion that the court properly denied the motion for default judgment and
dismissed the complaint because the complaint fails to allege facts sufficient to
establish that ERIC is a quasi-governmental corporation within the meaning of
Wisconsin’s public records law, and, therefore, the complaint fails to state a claim
under WIS. STAT. §§ 19.31-.39.

I. Forfeiture

¶14 To repeat, Bernegger argues that the circuit court erred in addressing
his motion for default judgment without providing notice and an opportunity to be
heard. However, as we explain, Bernegger did not object, despite being given
several opportunities to do so, when the court proceeded to address the motion for
default judgment after the parties had exchanged briefs in support of and
opposition to the motion and argued it at the hearing. Accordingly, we conclude
that Bernegger has forfeited his argument by raising that objection for the first
time on appeal.

3
To the extent that Bernegger also intends to argue that dismissal is not an appropriate
remedy if the circuit court determines, on a motion for default judgment, that the complaint fails
to state a claim, he does not develop that argument with citation to relevant legal authority.
Accordingly, we do not further consider it. See Industrial Risk Insurers v. American Eng’g
Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (providing that we need
not consider “[a]rguments unsupported by legal authority”).

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No. 2024AP168

¶15 It is well established that a party has forfeited on appeal an objection
that the party did not make in the circuit court. See, e.g., State v. Klapps, 2021 WI
App 5, ¶29, 395 Wis. 2d 743, 954 N.W.2d 38 (2020) (“failure to object, even to a
claimed structural constitutional violation, forfeits the challenge”). “It is a
fundamental principle of appellate review that issues must be preserved at the
circuit court. Issues that are not preserved at the circuit court, even alleged
constitutional errors, generally will not be considered on appeal.” State v.
Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727. This rule of
forfeiture is “not merely a technicality or a rule of convenience; it is an essential
principle of the orderly administration of justice.” Id., ¶11. “The rule promotes
both efficiency and fairness, and ‘goes to the heart of the common law tradition
and the adversary system.’” Id. (quoted source and alteration omitted).

¶16 One of the primary objectives of the forfeiture rule is to promote
raising an issue through an objection at the circuit court level, which “allows the
[circuit] court to correct or avoid the alleged error in the first place, eliminating the
need for appeal.” Id., ¶12. This process “gives both parties and the [circuit court]
judge notice of the issue and a fair opportunity to address the objection.” Id. “The
party who raises an issue on appeal bears the burden of showing that the issue was
raised before the circuit court.” Id., ¶10.

¶17 The record shows that Bernegger has not met his burden here. To
recap, Bernegger filed a motion for default judgment along with a supporting brief
and ten exhibits. ERIC filed a brief opposing the motion based on improper
service and failure of the complaint to state a claim on which relief may be
granted. ERIC devoted most of its brief to the failure-to-state-a-claim issue,
arguing that ERIC is not an authority subject to Wisconsin’s public records law.
Following Bernegger’s motion for default judgment, ERIC filed a motion to

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dismiss for improper service, and both parties filed motions for leave to file
additional documents.

¶18 At the beginning of the October 19, 2023 motion hearing, the circuit
court noted that the hearing was calendared only for ERIC’s motion to dismiss and
said that it would also “work through” the other motions and requests filed by the
parties. Bernegger did not object. After the court heard argument on and granted
the parties’ respective motions for leave to file additional documents, and heard
argument on and took under advisement ERIC’s motion to dismiss for improper
service, the court said that it would “now … work on the motion for default that
was filed by Mr. Bernegger.” The court asked the parties to speak regarding
ERIC’s “argument … that the complaint … filed by Mr. Bernegger[,] giving all
reasonable inferences to it[,] fails to state a claim because ERIC is not subject to
the [public] records requirements of Wisconsin law.” At this point, Bernegger
objected to ERIC “misleading” the court about the date that ERIC received notice
of Bernegger’s suit; he did not object to the court hearing argument on and
addressing his motion for default judgment or ERIC’s opposition to that motion
based on the complaint’s failure to state a claim.

¶19 ERIC and Bernegger then both presented arguments as to whether
ERIC is a quasi-governmental corporation. Both parties referenced information
outside of the complaint. The circuit court told the parties that it would “take this
issue under advisement as a part of the written order that comes out of today’s
hearing.” Bernegger did not object to the court doing so. Finally, the court asked
the parties if they would like to present arguments as to Bernegger’s notice
asserting that his requests for admissions were deemed admitted and said, “[I]f I
determine that ERIC is not subject to the [public] records law, this is a moot

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point.” Bernegger again did not object to the court addressing his motion for
default judgment as part of the court’s order on the motions argued at the hearing.

¶20 Based on this record, we conclude that Bernegger forfeited his
objection to the circuit court proceeding to address his motion for default
judgment at the hearing and deciding the motion in the order entered after the
hearing. See Klapps, 395 Wis. 2d 743, ¶29 (“failure to object … forfeits the
challenge”); Huebner, 235 Wis. 2d 486, ¶10 (issues not objected to in the circuit
court “generally will not be considered on appeal”).

II. Sufficiency of Complaint

¶21 Having concluded that Bernegger forfeited his argument that the
circuit court improperly addressed his motion for default judgment without
providing notice and an opportunity to be heard, we turn to his alternative
argument that the court erroneously denied his motion for default judgment and
dismissed his complaint. Specifically, Bernegger argues that the court erred in
concluding that the complaint “does not contain allegations” showing that ERIC is
an authority subject to Wisconsin’s public records law.

¶22 This court reviews a circuit court’s grant or denial of a motion for
default judgment for an erroneous exercise of discretion. Shirk v. Bowling, Inc.,
2001 WI 36, ¶9, 242 Wis. 2d 153, 624 N.W.2d 375. On a motion for default
judgment, “the complaint must contain allegations sufficient in law to state a claim
for relief against a defendant.” Davis v. City of Elkhorn, 132 Wis. 2d 394,
398-99, 393 N.W.2d 95 (Ct. App. 1986). “A default judgment will not stand if the

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complaint lacks allegations sufficient in law to state a cause of action.” 4 Chetek
State Bank v. Barberg, 170 Wis. 2d 516, 523, 489 N.W.2d 385 (Ct. App. 1992).
This is because “[t]he fact that a party may be in default cannot confer a right to
judgment upon a claim not recognized by law.” Davis, 132 Wis. 2d at 399.

¶23 This court reviews de novo the legal question of whether a complaint
states a claim on which relief may be granted. Data Key Partners v. Permira
Advisers LLC, 2014 WI 86, ¶17, 356 Wis. 2d 665, 849 N.W.2d 693. In order to
state a claim on which relief may be granted, “a complaint must plead facts, which
if true, would entitle the plaintiff to relief.” Id., ¶21. “[W]e accept as true all facts
well-pleaded in the complaint and the reasonable inferences therefrom.” Id., ¶19;
see also Davis, 132 Wis. 2d at 399 (on a motion for default judgment, an appellate
court, “like the [circuit] court, must read the complaint liberally”). “However, a
court cannot add facts in the process of construing a complaint. Furthermore,
legal conclusions stated in the complaint are not accepted as true, and they are
insufficient to [state a claim]. Therefore, it is important for a court considering
[whether a complaint states a claim] to accurately distinguish pleaded facts from
pleaded legal conclusions.” Data Key Partners, 356 Wis. 2d 665, ¶19 (citations
omitted). If the complaint fails to allege facts that, if true, entitle the plaintiff to
relief, it follows that the complaint must be dismissed. See Cattau v. National
Ins. Servs. of Wis., Inc., 2019 WI 46, ¶¶3-6, 386 Wis. 2d 515, 926 N.W.2d 756
(affirming dismissal when proof of facts alleged in complaint would not satisfy
each element of a cause of action); Strid v. Converse, 111 Wis. 2d 418, 422-23,

4
The terms “cause of action” and “claim for relief” are used interchangeably and refer to
the same concept. Tikalsky v. Friedman, 2019 WI 56, ¶14 n.9, 386 Wis. 2d 757, 928 N.W.2d
502 (“Our cases at various times have referred to ‘causes of action,’ ‘claims for relief,’ ‘theories
of recovery,’ and ‘theories of liability.’ The terms are interchangeable.”).

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331 N.W.2d 350 (1983) (complaint should be dismissed if facts alleged are
insufficient to support a claim for relief).

¶24 Wisconsin’s public records law, set forth in WIS. STAT. §§ 19.31-.39,
“sets out the rights of the public to access public records, as well as the procedures
to obtain them and limitations on the rights to public access.” Wisconsin State J.
v. Blazel, 2023 WI App 18, ¶17, 407 Wis. 2d 472, 991 N.W.2d 450. The public
records law applies only to authorities, and “WIS[.] STAT. § 19.32(1) defines
‘authority’ to include quasi-governmental corporations.” State v. Beaver Dam
Area Dev. Corp., 2008 WI 90, ¶30, 312 Wis. 2d 84, 752 N.W.2d 295. On appeal,
Bernegger asserts that ERIC is subject to Wisconsin’s public records law because
it is a quasi-governmental corporation.5

¶25 Determining whether the complaint alleges facts showing that ERIC
“is an ‘authority’ under the public records law is a matter of statutory
interpretation, which presents a question of law that we review de novo.” See
Wisconsin Pro. Police Ass’n, Inc. v. Wisconsin Cntys. Ass’n, 2014 WI App 106,
¶3, 357 Wis. 2d 687, 855 N.W.2d 715. “Statutory interpretation begins with the
language of the statute, and if the meaning of the statute appears plain from its
language, we ordinarily stop there.” State v. Stanley, 2012 WI App 42, ¶16, 340
Wis. 2d 663, 814 N.W.2d 867. “Additionally, a plain meaning analysis may look
to statutory context and structure.” State v. Soto, 2012 WI 93, ¶20, 343 Wis. 2d
43, 817 N.W.2d 848. We may also “consult case law that ‘may illumine how we

5
In his brief in support of his motion for default judgment, Bernegger argued that ERIC
is also another type of entity within the definition of “authority,” namely, “a nonprofit corporation
which receives more than 50 percent of its funds from a county or a municipality.” WIS. STAT.
§ 19.32(1). Bernegger does not renew this argument on appeal and, therefore, we address it no
further.

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have previously interpreted or applied the statutory language.’” City of New
Lisbon v. Muller, 2023 WI App 65, ¶47, 410 Wis. 2d 309, 1 N.W.3d 761 (quoting
Belding v. Demoulin, 2014 WI 8, ¶16, 352 Wis. 2d 359, 843 N.W.2d 373).

¶26 We begin with the language of the statute. WISCONSIN STAT.
§ 19.31, which declares the policy that motivated the statute, states: “[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.” In other words, the
public records law is designed to give the public access to information in the State
of Wisconsin regarding Wisconsin government and the acts of its representatives.
The statute provides that it applies only to an “authority” and, pertinent here,
defines an “authority” to include “a governmental or quasi-governmental
corporation.” WIS. STAT. § 19.32(1).

¶27 The term “quasi-governmental corporation” is not defined in
Wisconsin’s public records law, or in the chapter in which the public records law
is located. However, our supreme court has instructed that “an entity is a quasi-
governmental corporation within the meaning of WIS. STAT. § … 19.32(1) if,
based on the totality of circumstances, it resembles a governmental corporation in
function, effect, or status.” Beaver Dam, 312 Wis. 2d 84, ¶9. While recognizing
that “[e]ach case has to be decided on the particular facts presented[, and] … no
one factor … is outcome determinative,” the court identified five non-exclusive
factors important in determining whether, based on the totality of the
circumstances, an entity is a quasi-governmental corporation subject to the public
records law. Id., ¶¶8, 62, 63 n.14. These factors are: “(1) whether the entity’s
funding comes from predominately public or private sources; (2) whether the
entity serves a public function; (3) whether the entity appears to the public to be a

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government entity; (4) the degree to which the entity is subject to government
control; and (5) the amount of access governmental bodies have to the entity’s
records.” State ex rel. Flynn v. Kemper Ctr., Inc., 2019 WI App 6, ¶15, 385
Wis. 2d 811, 924 N.W.2d 218 (citing Beaver Dam, 312 Wis. 2d 84, ¶62).

¶28 The complaint contains the following factual allegations relevant to
whether ERIC is a quasi-governmental corporation: (1) “ERIC is a nonprofit
organization with an address 1201 Connecticut Ave NW, … Washington D.C.
20036”; (2) “ERIC causes direct mailings to [Waupaca County] on a regular basis,
per a signed agreement with the Wisconsin Election Commission (‘WEC’)”;
(3) “[Bernegger] and all registered to vote citizens of Waupaca County have their
personal identifiable information (“PII”) sent to ERIC by WEC approximately
every 90 days. This includes social security numbers, driver’s license numbers,
birthdates, email addresses, telephone numbers”; (4) “ERIC receives Active and
Inactive registrants’ information of citizens of Waupaca County on a regular basis
from WEC”; (5) “ERIC receives Active and Inactive registrants’ information of
citizens of Waupaca County from the DMV, via WEC, on a regular basis”;
(6) “ERIC has a written agreement with [WEC] signed by the Administrator
Meagan Wolfe”; (7) “ERIC has conducted business in [Wisconsin] since about
2015”; and (8) “ERIC does not have any employees at the address listed on their
website.”6

6
The complaint also states several legal conclusions, including that “ERIC is an
Authority [under WIS. STAT.] § 19.32(1)”; that “WEC, the State of Wisconsin, is required by
statute to be a member of ERIC”; and that “WEC is an agent of ERIC.” Consistent with the legal
principles stated above, we disregard these alleged legal conclusions.

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¶29 We now proceed to apply the five factors set forth in Beaver Dam to
determine whether the complaint alleges facts showing that ERIC “resembles a
governmental corporation in function, effect, or status.” See Beaver Dam, 312
Wis. 2d 84, ¶9.

¶30 First factor: source of funding. In Beaver Dam, the source of
funding for the Beaver Dam Area Development Corporation (“BDADC”) was a
“primary consideration” in determining that BDADC was a quasi-governmental
corporation. Id., ¶10; see also Kemper Center, 385 Wis. 2d 811, ¶31 (considering
funding sources in quasi-governmental corporation analysis). The complaint does
not allege any facts related to ERIC’s funding sources; therefore, this factor does
not support a determination that ERIC is a quasi-governmental corporation.

¶31 Second factor: public function. In Beaver Dam, the court
concluded that the fact that BDADC’s “exclusive function is to promote economic
development in and around the City, a function that prior to its creation had been
performed by the City,” made the organization “resemble[] a governmental
corporation.” Beaver Dam, 312 Wis. 2d 84, ¶¶11, 69. There, “with respect to the
function it serves, BDADC is indistinguishable from the City office that preceded
BDADC’s incorporation.” Id., ¶69. By contrast, in Kemper Center, this court
determined that Kemper Center, Inc.’s functions of preserving a park and offering
local programming did not lie “exclusively, or even predominately, in either the
public or private sphere” and, therefore, concluded that this factor did not strongly
support a determination that Kemper Center, Inc. was a quasi-governmental
corporation. Kemper Center, 385 Wis. 2d 811, ¶35. In this case, Bernegger
alleges in his complaint that ERIC “causes direct mailings to this county” through
an agreement with WEC and receives personal information of registered voters
from WEC and the Department of Motor Vehicles. Sending mail to citizens and

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receiving personal information of registered voters are functions not readily
associated only with public agencies (and not, for example, also with private
commercial or political entities), and, thus, do not lie “exclusively, or even
predominately, in either the public or private sphere.” See id. Accordingly, these
allegations do not support a determination that ERIC is a quasi-governmental
corporation.

¶32 Third factor: appearance to public. In Beaver Dam, the court
determined that the facts that BDADC’s offices were located in a city building,
BDADC had a page on the city’s website, and two of BDADC’s directors were
city officials, weighed strongly in favor of concluding that BDADC was a quasi-
governmental corporation. Beaver Dam, 312 Wis. 2d 84, ¶73. By contrast, in
Kemper Center, this court found the following relevant to its conclusion that
Kemper Center, Inc. was not a quasi-governmental corporation: that Kemper
Center, Inc. maintained its own website separate from the city’s; and that the city
ordinances referencing Kemper Center, Inc. “suggest to a reasonable reader that
Kemper Center, Inc. is a different entity than the County, albeit one that shares
some jurisdiction and a business relationship with County departments.” Kemper
Center, 385 Wis. 2d 811, ¶¶39, 42. Here, the complaint’s factual allegations that
“ERIC is a nonprofit organization with an address 1201 Connecticut Ave NW, …
Washington D.C. 20036”; “ERIC has a written agreement with [WEC] signed by
the Administrator Meagan Wolfe”; and “ERIC has conducted business in
[Wisconsin] since about 2015” are more akin to the facts in Kemper Center, such
that they suggest to a reasonable citizen that ERIC “is a different entity than [WEC
or the State of Wisconsin], albeit one that shares … a business relationship” with
those government entities. See id., ¶42.

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¶33 Fourth and fifth factors: government control and access to records.
The complaint does not allege any facts related to the Wisconsin government’s
control over or access to records of ERIC.7 Therefore, these factors do not support
a determination that ERIC is a quasi-governmental corporation.

¶34 Bernegger does not argue that the allegations in the complaint
suffice to show that ERIC is a quasi-governmental corporation. On our de novo
review, based on our application of the Beaver Dam factors, we conclude that the
facts alleged in the complaint fail to show that ERIC “resembles a governmental
corporation in function, effect, or status.” See Beaver Dam, 312 Wis. 2d 84, ¶9.
The alleged facts at most show that ERIC, a private nonprofit corporation, has a
business relationship with a Wisconsin government entity, WEC, but that does not
make ERIC a quasi-governmental corporation. See Kemper Center, 385 Wis. 2d
811, ¶¶42, 51-53 (business relationship and shared authority between a county and
non-governmental entity do not transform the non-governmental entity into a
quasi-governmental corporation; records relating to a business relationship
between the county and the corporation may be requested from the county itself).8

7
It is possible that the complaint’s allegation that ERIC has a written agreement with
WEC could relate to the Wisconsin government’s control over or access to ERIC’s records.
However, the alleged agreement is not attached to the complaint, and Bernegger asserted in a
subsequent filing in the circuit court that there is no such agreement. The complaint’s conclusory
allegation about an agreement with unspecified terms between ERIC and WEC does not, in any
event, suffice to satisfy these or any of the other Beaver Dam factors.
8
Though not relevant to our analysis, we note that WIS. STAT. § 19.36(3) provides an
avenue for a requester to gain access to records from entities that contract with authorities. That
provision, titled “CONTRACTORS’ RECORDS,” states in relevant part, “Each authority shall make
available for inspection and copying … any record produced or collected under a contract entered
into by the authority with a person other than an authority to the same extent as if the record were
maintained by the authority.”

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CONCLUSION

¶35 For the reasons stated above, we affirm the circuit court order and
dismiss the cross-appeal. No costs to either party.

By the Court.—Order affirmed; cross-appeal dismissed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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