Midwest Environmental Advocates, Inc. v. Frederick Prehn

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.
July 29, 2025
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. 2023AP1478 Cir. Ct. No. 2021CV2526

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

MIDWEST ENVIRONMENTAL ADVOCATES, INC.,

PETITIONER-APPELLANT-CROSS-RESPONDENT,

V.

FREDERICK PREHN,

RESPONDENT-RESPONDENT-CROSS-APPELLANT,

WISCONSIN DEPARTMENT OF NATURAL RESOURCES AND WISCONSIN
NATURAL RESOURCES BOARD,

RESPONDENTS-RESPONDENTS-CROSS-RESPONDENTS.

APPEAL and CROSS-APPEAL from an order of the circuit court
for Dane County: EVERETT D. MITCHELL, Judge. On appeal, final order
reversed and cause remanded with directions; on cross-appeal, nonfinal order
affirmed.

Before Donald, P.J., Geenen, and Colón, JJ.
No. 2023AP1478

¶1 GEENEN, J. The instant case stems from a public records request
under Wisconsin’s Public Records Law, WIS. STAT. §§ 19.31-19.39.1 Midwest
Environmental Advocates, Inc. (“MEA”) filed a complaint alleging that Frederick
Prehn, through the Wisconsin Department of Natural Resources (“DNR”) and as
Chair and Member of the Natural Resources Board (“NRB”) (collectively,
“Defendants”), violated the Public Records Law by arbitrarily and capriciously
denying and delaying production of certain text messages responsive to a records
request made by MEA. Prehn moved to dismiss the complaint, arguing that the
requested communications were not “records” and that Prehn was not an
“authority” under the Public Records Law. The circuit court denied the motion,
and MEA continued to pursue its records request.

¶2 The parties agreed to a Forensic Inspection Protocol (“Protocol”)
that included a schedule and procedure for an independent forensic inspection of
Prehn’s digital devices in order to identify additional responsive records for Prehn
to produce. The circuit court incorporated the schedule and procedure set forth in
the Protocol into its scheduling order. In accordance with that procedure, Prehn
provided MEA an additional 159 communications responsive to its initial public
records request.

¶3 After production of the records, MEA and Prehn filed cross-motions
for summary judgment. MEA argued in its motion that because it had
substantially prevailed on its claims, MEA was entitled to summary judgment,
reasonable costs and attorney fees under WIS. STAT. § 19.37(2)(a), and punitive
damages under § 19.37(3). Prehn argued in his motion that he was entitled to

1
All references to the Wisconsin Statutes are to the 2023-24 version.

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summary judgment because the case became moot after he voluntarily provided all
communications responsive to MEA’s initial public records request under the
terms of the Protocol. Relying on the majority opinion in a divided Wisconsin
Supreme Court decision, Friends of Frame Park, U.A. v. City of Waukesha, 2022
WI 57, 403 Wis. 2d 1, 976 N.W.2d 263, the circuit court dismissed MEA’s
complaint, concluding that Defendants were entitled to summary judgment
because the mid-litigation production of the requested records before a judicially
sanctioned change in the parties’ legal relationship rendered MEA’s lawsuit
moot.2

¶4 Shortly after the circuit court entered summary judgment and
dismissed MEA’s complaint, we issued Wisconsin State Journal v. Blazel, 2023
WI App 18, 407 Wis. 2d 472, 991 N.W.2d 450. After a thorough examination of
Friends of Frame Park, we concluded that “no majority of justices ruled that
voluntary release of requested records in the course of litigation of a public
records action renders the action moot.” Blazel, 407 Wis. 2d 472, ¶38. Thus, we
reaffirmed our holding in a prior case “that the voluntary disclosure of a requested
record does not render the action moot because a ruling on the merits ‘will have
the practical effect of determining the [requester’s] right to recover damages and
fees under WIS. STAT. § 19.37(2)(a) based upon the [custodian’s] denial of its
request.’” Blazel, 407 Wis. 2d 472, ¶43 (quoting Portage Daily Reg. v. Columbia

2
In Friends of Frame Park, the Wisconsin Supreme Court held that in order to “prevail
in whole or in substantial part” under WIS. STAT. § 19.37(2)(a) such that the requester is entitled
to costs and attorney fees, the requester “must obtain a judicially sanctioned change in the parties’
legal relationship.” Friends of Frame Park, U.A. v. City of Waukesha, 2022 WI 57, ¶3, 403
Wis. 2d 1, 976 N.W.2d 263. We discuss what it means to “obtain a judicially sanctioned change
in the parties’ legal relationship” later in this opinion.

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Cnty. Sheriff’s Dep’t, 2008 WI App 30, ¶8, 308 Wis. 2d 357, 746 N.W.2d 525;
brackets in Blazel).

¶5 MEA filed a motion for relief from judgment or, alternatively,
reconsideration of the circuit court’s summary judgment order (the “postjudgment
motion”). MEA argued that, under Blazel, Prehn had not mooted the case by
voluntarily producing the requested records in the course of litigation, and
extraordinary circumstances existed justifying relief from judgment. The circuit
court denied MEA’s motion, concluding that MEA had not shown extraordinary
circumstances justifying relief under WIS. STAT. § 806.07(1)(h) and calling into
question Blazel’s interpretation of Friends of Frame Park and Blazel’s
conclusion that voluntary disclosure of a requested record does not render a public
records action moot.

¶6 MEA appeals the circuit court’s order denying its postjudgment
motion. Prehn cross-appeals, seeking review of the circuit court’s non-final order
denying his motion to dismiss as well as certain findings that the circuit court
made in its summary judgment order. MEA argued that Prehn’s cross-appeal was
untimely.

¶7 We conclude as follows: (1) Prehn’s cross-appeal is timely;
(2) Prehn is not aggrieved by the circuit court’s order granting summary judgment
in his favor, so he cannot cross-appeal that order; (3) the circuit court correctly
denied Prehn’s motion to dismiss because the requested communications are
“records,” and although Prehn is not an “authority” under the Public Records Law,
he is a necessary party to this litigation under WIS. STAT. § 803.03(1); (4) the
circuit court erroneously exercised its discretion when it denied MEA’s
postjudgment motion because it based its decision on a manifest error of law;

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No. 2023AP1478

(5) extraordinary circumstances exist in this case justifying relief from judgment
under WIS. STAT. § 806.07(1)(h); and (6) MEA achieved a judicially sanctioned
change in the parties’ legal relationship.

¶8 Accordingly, we affirm the circuit court’s nonfinal order denying
Prehn’s motion to dismiss, but we reverse the circuit court’s final order denying
MEA’s postjudgment motion. We remand the cause for further proceedings
consistent with this opinion.

BACKGROUND

¶9 In May 2015, Governor Scott Walker nominated Prehn to the NRB.
State ex rel. Kaul v. Prehn, 2022 WI 50, ¶5, 402 Wis. 2d 539, 976 N.W.2d 821.
Prehn was confirmed by the senate in November 2015, with a term to expire on
May 1, 2021.” Id. On May 1, 2021, Prehn’s term on the NRB expired, but Prehn
refused to vacate his seat.3 Seeking to learn more about the situation, MEA
submitted a written public records request for Prehn’s communications regarding
his tenure on the NRB. On June 29, 2021, MEA requested:

All communications sent to or from Dr. Frederick
Prehn, between the dates of June 29, 2020 and June 29,
2021, regarding his tenure on the [NRB], including but not
limited to any communication about remaining on the
[NRB] past the expiration of his term or otherwise
declining to vacate his position on the [NRB].

3
On August 17, 2021, the State filed a lawsuit arguing that Prehn was unlawfully
holding his office. State ex rel. Kaul v. Prehn, 2022 WI 50, ¶7, 402 Wis. 2d 539, 976 N.W.2d
821. The case eventually arrived at the Wisconsin Supreme Court, which concluded that the
expiration of Prehn’s term did not create a vacancy, and therefore, Prehn lawfully retained his
office as a holdover. Id., ¶16.

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The request defined “communications” to include, among other things, text
messages sent or received on any professional or personal device (e.g., cell
phones).

¶10 On August 13, 2021, the DNR responded to MEA’s request. The
response included two hyperlinks to batches of responsive records and an
explanation of any records that were redacted or withheld. Neither batch of
records included any text messages, and the DNR did not mention text messages
in its explanation of records that were redacted or withheld. In a subsequent email
to the DNR, MEA reiterated that it had requested text messages but that none were
provided in response to the request. A DNR employee, acting as a liaison between
the DNR and the NRB, emailed Prehn a copy of the record request and confirmed
with him that “text message searches were included in [the] request.” Prehn
responded, “I have no text on my phone for that.” On September 3, 2021, the
DNR responded to MEA, stating “that [the relevant staff] did search for text
messages as part of their record searches and they did not locate any text message
records responsive to your request.”

¶11 On September 13, 2021, MEA submitted another public records
request not at issue in this lawsuit seeking “all text messages [NRB] Member Bill
Smith sent to or received from Dr. Frederick Prehn, between April 1, 2021 and
September 13, 2021.” In response to that request, the DNR produced an April 26,
2021 text message from Prehn to Smith, stating:

I’ve got to decide if I’m going to stay on until the next
appointee is confirmed. [Governor] Evers notified me he’s
not going to reappoint me I guess he thinks there’s some
pretty big agenda items I might not agree with LOL

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No. 2023AP1478

The discovery of this text message prompted MEA to file the instant lawsuit
against Prehn, the DNR, and the NRB.

¶12 On October 19, 2021, MEA filed a complaint alleging that Prehn,
through the DNR, and as Chair and Member of the NRB, violated the Public
Records Law by failing to fulfill MEA’s June 29, 2021 records request as
evidenced by responsive records discovered through MEA’s September 13, 2021
records request to Smith. MEA additionally alleged that Prehn arbitrarily and
capriciously delayed and denied MEA’s June 29, 2021 records request. The
complaint sought: (1) a mandamus order compelling the Defendants to
“immediately search for and produce all records” responsive to MEA’s June 29,
2021 records request, including, but not limited to, text messages; (2) reasonable
attorneys’ fees and actual costs to MEA related to the public records action, and
damages of “not less than $100” pursuant to WIS. STAT. § 19.37(2); and
(3) punitive damages awarded under § 19.37(3).

¶13 In response, Prehn filed a combined answer and motion to dismiss
based on failure to state a claim upon which relief may be granted, arguing that he
was not an “authority” under the Public Records Law. Prehn later amended his
motion to add the argument that the communications requested were not “records”
under the Public Records Law. The DNR and the NRB answered the complaint,
but they did not join Prehn’s motion to dismiss. They took no position on the
“authority” issue, and they disagreed with Prehn on the “records” issue. Indeed,
the DNR and the NRB took the position that MEA “has requested records which
must be produced.” The circuit court denied Prehn’s motion on March 8, 2022.
The order stated that the decision was final for purposes of appeal, but the circuit
court subsequently amended its order on March 28, 2022, to remove that
statement.

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No. 2023AP1478

¶14 After the circuit court’s decision denying Prehn’s motion to dismiss,
the parties agreed on the Protocol that included procedures for identifying
responsive documents and a schedule for review and production of responsive
records. The circuit court included those procedures and schedules in a scheduling
order, and it directed that responsive records be produced by September 2, 2022.
Subsequently, MEA received a batch of 159 communications, all of which were
responsive to MEA’s initial public records request.

¶15 On September 23, 2022, MEA and Prehn moved for summary
judgment. The DNR and the NRB did not move for summary judgment, but they
did request summary judgment in their response brief opposing MEA’s motion.
On February 14, 2023, the circuit court denied MEA’s motion and granted
summary judgment to Prehn, the DNR, and the NRB. It concluded that Prehn’s
initial denial of MEA’s request, “followed with an egregious delay, were both
arbitrary[.]” However, relying on Friends of Frame Park, the circuit court
believed it could not award MEA summary judgment. Instead, it concluded that
“although [Prehn] arbitrarily withheld public records for approximately [16]
months, Prehn has mooted this action by providing those records before any
judicially sanctioned change in the parties’ relationship.”4

¶16 On March 9, 2023, we issued Wisconsin State Journal v. Blazel, an
opinion that was ultimately published and became binding authority in future
cases. In Blazel, we closely examined Friends of Frame Park, and we stated that

4
Independent of the mootness issue, the circuit court concluded that MEA was not
entitled to summary judgment against the DNR or the NRB because MEA addressed only Prehn’s
individual failures in its motion. The conclusion that Prehn’s conduct can be separated from the
conduct of the DNR and the NRB should be reconsidered in light of this opinion.

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No. 2023AP1478

“no majority of justices ruled that voluntary release of requested records in the
course of litigation of a public records action renders the action moot.” Blazel,
407 Wis. 2d 472, ¶¶27-38. We further reiterated that under existing precedent,
“the voluntary disclosure of a requested record does not render the action moot
because a ruling on the merits will have the practical effect of determining the
requester’s right to recover damages and fees under WIS. STAT. § 19.37(2)(a)
based upon the custodian’s denial of its request.” Blazel, 407 Wis. 2d 472, ¶43
(cleaned up).

¶17 On March 24, 2023, MEA filed the postjudgment motion underlying
this appeal. It argued that under Blazel, the production of responsive records did
not render MEA’s action moot, and extraordinary circumstances existed justifying
relief from judgment.

¶18 On June 30, 2023, the circuit court denied MEA’s motion. It
concluded that MEA had not shown extraordinary circumstances justifying relief
under WIS. STAT. § 806.07(1)(h). In a lengthy footnote, the circuit court called
into question Blazel’s interpretation of Friends of Frame Park and its conclusion
that voluntary disclosure of a requested record does not render an action moot.

¶19 On August 11, 2023, MEA appealed from the circuit court’s order
denying its postjudgment motion. On August 18, 2023, Prehn cross-appealed,
seeking: (1) reversal of the circuit court’s order denying his motion to dismiss and

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No. 2023AP1478

(2) modification of certain findings related to Prehn’s conduct in the court’s order
granting the Defendants summary judgment.5

DISCUSSION

¶20 This case involves a direct appeal by MEA and a cross-appeal by
Prehn. We first consider Prehn’s cross-appeal.6 We conclude that Prehn timely
cross-appealed the circuit court’s nonfinal order denying his motion to dismiss and
the order granting him summary judgment. However, Prehn was not aggrieved by
the order granting him summary judgment, so he cannot cross-appeal that order.
We further conclude that the circuit court correctly denied Prehn’s motion to
dismiss because the requested communications are “records,” and although Prehn
is not an “authority” under the Public Records Law, he is a necessary party to this
litigation under WIS. STAT. § 803.03(1).

¶21 After resolving Prehn’s cross-appeal, we turn to MEA’s direct
appeal. MEA appeals the circuit court’s order denying its postjudgment motion.
MEA argues that Blazel directly contradicts the only basis upon which the circuit
court relied when entering the judgment. Given the timing of events, the
similarities between MEA and the requester in Blazel, and the fact that the circuit
court appeared ready to award it summary judgment but for the court’s conclusion
that the case was moot, extraordinary circumstances exist justifying relief from
judgment.

5
Specifically, Prehn challenges the circuit court’s findings that he acted arbitrarily and
capriciously in denying and delaying production of the responsive text messages that he later
produced under the Protocol and the circuit court’s scheduling order.
6
The DNR and the NRB take no position with respect to either the timeliness or merits
of Prehn’s cross-appeal.

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No. 2023AP1478

¶22 We agree that the circuit court erroneously exercised its discretion
and should have granted relief to MEA. Under Blazel, MEA’s lawsuit is not
moot. We further conclude that extraordinary circumstances exist in this case
justifying relief from judgment under WIS. STAT. § 806.07(1)(h), the circuit court
should have granted MEA’s motion for reconsideration, and that MEA has
achieved a judicially sanctioned change in the parties’ legal relationship.

¶23 Accordingly, we affirm the circuit court’s order denying Prehn’s
motion to dismiss, we reverse the circuit court’s order denying MEA’s
postjudgment motion, and we remand the cause for further proceedings consistent
with this opinion.

I. Prehn’s cross-appeal

A. The cross-appeal was timely.

¶24 MEA argues that Prehn’s cross-appeal is untimely under WIS.
STAT. § 808.04(1) because Prehn failed to file notice of his cross-appeal within 45
days of the entry of the summary judgment order. 7 Prehn argues that his cross-
appeal was timely because it was not governed by the time limits set forth in
§ 808.04(1). Rather, Prehn filed a cross-appeal under WIS. STAT.
RULE 809.10(2)(b), which permits a respondent to cross-appeal “the judgment or
order appealed from or of another judgment or order entered in the same action ...
within the period established by law for filing a notice of appeal, or 30 days after
the filing of a notice of appeal, whichever is later.” (Emphasis added). Prehn
contends that the orders subject to his cross-appeal are other orders entered in the

7
The relevant dates are not in dispute.

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No. 2023AP1478

same action, and notes that the cross-appeal was filed within 30 days after the
filing of MEA’s notice of appeal, which is the later of the two deadlines set forth
in RULE 809.10(2)(b).

¶25 Ordinarily, a party’s failure to timely file a notice of appeal
following a final judgment or order precludes a party from seeking review of the
underlying proceedings. WIS. STAT. RULE 809.10(1)(e) (“The notice of appeal
must be filed within the time specified by law. The filing of a timely notice of
appeal is necessary to give the court jurisdiction over the appeal.”). Here, the time
to directly appeal the circuit court’s summary judgment order expired with neither
party filing a notice of appeal. However, after the summary judgment final order
was entered in the action, MEA filed the postjudgment motion for relief based on
a newly issued opinion by this court. When the circuit court denied MEA relief,
MEA appealed from that order. Within 30 days of MEA filing its notice of
appeal, Prehn cross-appealed the order granting him summary judgment and the
nonfinal order denying his motion to dismiss.

¶26 MEA argues that Prehn was required to appeal from these orders, if
at all, by the deadline set forth in WIS. STAT. § 808.04(1), and Prehn’s failure to do
so forever extinguished his ability to seek review of those orders in the future.
Prehn argues that such an interpretation would contradict the plain language of
WIS. STAT. RULE 809.10(2)(b). He argues that when MEA appealed from the
circuit court’s order denying its postjudgment motion, he became a respondent and
therefore, RULE 809.10(2)(b) unambiguously gives him the opportunity to cross-
appeal other judgments or orders entered in the same action within 30 days of
MEA’s filing of the notice of appeal if the deadlines to directly appeal those orders
have expired. Practically speaking, Prehn contends that if the period established
by law for the filing of a notice of appeal has expired when the notice of appeal is

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No. 2023AP1478

filed, RULE 809.10(2)(b) resets a respondent’s deadline to appeal other judgments
or orders entered in that action to 30 days after appellant’s filing of the notice of
appeal.

¶27 We agree with Prehn. We begin by examining the language of the
relevant statutes. State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58,
¶45, 271 Wis. 2d 633, 681 N.W.2d 110. WISCONSIN STAT. § 808.04(1) sets forth
the deadline for initiating appeals of final judgments or orders:

An appeal to the court of appeals must be initiated within
45 days of entry of a final judgment or order appealed from
if written notice of the entry of a final judgment or order is
given within 21 days of the final judgment or order as
provided in [WIS. STAT. §] 806.06(5), or within 90 days of
entry if notice is not given, except as provided in this
section or otherwise expressly provided by law.

(Emphasis added). “The notice of appeal must be filed within the time specified
by law. The filing of a timely notice of appeal is necessary to give the court
jurisdiction over the appeal.” WIS. STAT. RULE 809.10(1)(e).

¶28 MEA is correct that after the deadline in WIS. STAT. § 808.04(1)
expired, neither it nor Prehn could directly appeal from the summary judgment
order or the nonfinal order denying Prehn’s motion to dismiss. All deadlines for
directly appealing those orders had passed. See WIS. STAT. § 808.04(1), WIS.
STAT. RULE 809.10(4), 809.50. However, by appealing from the order denying
MEA’s postjudgment motion, MEA made Prehn a “respondent” under our
appellate rules, and the timing of Prehn’s cross-appeal became governed by
RULE 809.10(2)(b) which allows a respondent to appeal “another judgment or
order entered in the same action ... within the period established by law for filing a
notice of appeal, or 30 days after the filing of a notice of appeal, whichever is
later.” See also § 808.04(1) (acknowledging that other statutes may expressly

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No. 2023AP1478

provide a different deadline to initiate an appeal). Prehn met this deadline because
he filed his cross-appeal within 30 days after MEA’s filing of a notice of appeal,
the later of the two dates specified in RULE 809.10(2)(b).

¶29 MEA’s argument that Prehn was required to bring his cross-appeal
within the time period set forth in WIS. STAT. § 808.04(1) ignores critical facts.
First, WIS. STAT. RULE 809.10(2)(b) expressly allows a party a minimum of 30
days after the appellant files the notice of appeal to determine whether to file a
cross-appeal. RULE 809.10(2)(b), JUDICIAL COUNCIL COMMITTEE’S NOTE (1978)
(“The respondent is given a minimum of 30 days after the filing of the notice of
appeal to determine whether to file a cross-appeal.”). Second, by permitting a
respondent time to file a cross-appeal measured from the day the notice of appeal
is filed, RULE 809.10(2)(b) prevents appellants from strategically limiting the time
period for respondents to decide whether to cross-appeal the order from which
appellant appealed or “another judgment or order entered in the same action.” If
MEA’s position were correct, a party aggrieved by a final order could wait until
the day before the § 808.04(1) appeal deadline passed to file a notice of appeal,
leaving one day for the respondent to decide whether to file a cross-appeal.

¶30 MEA’s interpretation would likewise nullify respondents’ ability to
cross-appeal nonfinal orders after an appeal is taken from a final order, something
a respondent can unquestionably do. State v. Alles, 106 Wis. 2d 368, 388, 316
N.W.2d 378 (1982) (“Once the appellant has been granted an appeal ... the
respondent who was formerly required to bring a notice of review may now utilize
the cross-appeal procedure and have nonfinal orders reviewed.”); see also
Johnson v. Pearson Agri-Systems, Inc., 119 Wis. 2d 766, 782-83, 350 N.W.2d
127 (1984).

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No. 2023AP1478

¶31 There is no right to appeal from nonfinal orders under WIS. STAT.
§ 808.03(1). A party that wants to challenge a nonfinal order must instead petition
this court for leave to appeal within 14 days after the entry of the nonfinal
judgment or order under § 808.03(2) and WIS. STAT. RULE 809.50. Litigation
takes time, so it will very often be the case that the 14-day deadline for permissive
appeals of nonfinal orders will have expired by the time a final order is entered
months, or even years later. It cannot be the case that a respondent’s ability to
timely cross-appeal a nonfinal order depends upon whether a final order was both
entered and appealed within 14 days of the nonfinal order the respondent seeks to
cross-appeal.8

¶32 In short, MEA’s argument is contrary to the plain language of WIS.
STAT. RULE 809.10(2)(b) because it ignores the statutory provision that allows
respondents at least 30 days to file a cross-appeal from “another judgment or order
entered in the same action.” Therefore, Prehn’s cross-appeal is timely.

¶33 MEA, relying on State v. Newman, 162 Wis. 2d 41, 469 N.W.2d
394 (1991), nevertheless argues that if we conclude Prehn’s cross-appeal is timely,
we would be granting him more rights as a cross-appellant than he would have had
as an appellant. MEA misreads Newman.

¶34 The court in Newman examined, among other statutes, WIS. STAT.
RULE 809.10(2)(b), and reaffirmed that under the cross-appeal statute, “a ‘cross-

8
Under WIS. STAT. RULE 809.10(4), “[a]n appeal from a final judgment or final order
brings before the court all prior nonfinal judgments, orders and rulings adverse to the appellant
and favorable to the respondent made in the action or proceeding not previously appealed and
ruled upon[,]” but nonfinal judgements, orders, and rulings adverse to the respondent and
favorable to the appellant are not included, which is why it is necessary for a respondent to file a
cross-appeal if they intend to challenge such judgments, orders, or rulings.

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No. 2023AP1478

appellant has the same rights and obligations as an appellant’ under chapter 809.” 9
Newman, 162 Wis. 2d at 48 (quoting RULE 809.10(2)(b)). However, the issue in
Newman did not involve the deadlines in RULE 809.10(2)(b), but was instead
about whether the State could cross-appeal a circuit court’s order finding that a
criminal defendant was not guilty of two counts in an information and dismissing
those counts. Newman, 162 Wis. 2d at 44. The court explained that the cross-
appeal statute allows respondents to cross-appeal orders that the law permits them
to appeal. Id. at 48. It then examined WIS. STAT. § 974.05(1), which sets forth the
limited categories of judgments and orders from which the State may appeal in a
criminal case, found that the statute did not expressly authorize the State to appeal
an order of acquittal or dismissal of a count after a finding of not guilty, and
concluded that the court of appeals had correctly dismissed the State’s cross-
appeal. Newman, 162 Wis. 2d at 49-51; see also State v. McAdory, 2025 WI 30,
¶¶22-23, __ Wis. 2d __, __ N.W.3d __. Thus, the court in Newman concluded
that RULE 809.10(2)(b) does not allow a respondent to cross-appeal judgments or
orders that the respondent would not have had a legal right to appeal under any
timeframe.

¶35 MEA claims that if respondents are able to cross-appeal both final
and nonfinal orders within 30 days of the appellant filing a notice of appeal of a
postjudgment order, parties will be incentivized to bring postjudgment motions for

9
After acknowledging that appellants and cross-appellants have the same rights and
obligations as one another, MEA suggests that cross-appellants have only a “limited right” to
“seek a modification of” a judgment or order entered in the same action. MEA does not explain
how this language limits cross-appellants’ rights as compared to appellants, but in our view,
MEA’s argument is incompatible with the statute’s pronouncement that cross-appellants and
appellants share the same rights and obligations. See WIS. STAT. RULE 809.10(2)(b).

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No. 2023AP1478

reconsideration for the purpose of refreshing appeal deadlines on long-settled final
judgments. MEA’s parade of hypothetical horribles is unlikely to materialize.

¶36 First, it is well-settled that a party cannot use a motion for
reconsideration as a vehicle for enlarging that party’s appeal deadline of a final
judgment or order. See WIS. STAT. RULE 809.82(2)(b) (“[T]he time for filing a
notice of appeal or cross-appeal of a final judgment or order ... may not be
enlarged.”). “The rule is that, if a party failed to timely appeal the judgment, the
party cannot revive its expired deadline by appealing an order that denied a motion
for reconsideration that presented the same issues as those determined in the
judgment sought to be reconsidered.” Kraemer v. Traun, 2025 WI App 8, ¶13,
415 Wis. 2d 125, 17 N.W.3d 49. Here, Prehn was not the party that brought the
motion for reconsideration. The fear that a party will successfully use a
postjudgment motion for reconsideration to revive its expired appeal deadline is
nonexistent because a cross-appeal can only ever be brought after a notice of
direct appeal. It will never be the case that the respondent refreshes their own
deadline—it is the appellant’s filing of a notice of appeal that triggers WIS. STAT.
RULE 809.10(2)(b).

¶37 Second, and importantly, respondents are limited in what judgments
and orders they may cross-appeal to the same extent as an appellant except that the
timing of a cross-appeal is governed by WIS. STAT. RULE 809.10(2)(b). For
example, a respondent must be aggrieved by the judgment or order from which the
respondent cross-appeals. Kiser v. Jungbacker, 2008 WI App 88, ¶12, 312
Wis. 2d 621, 754 N.W.2d 180. Moreover, a respondent cannot appeal from a
judgment or order that has been previously appealed and ruled upon. See WIS.
STAT. RULE 809.10(2)(b) (explaining that cross-appellants have the same rights
and obligations as appellants) and 809.10(4) (explaining that appellants cannot

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No. 2023AP1478

seek review of judgments, orders, and rulings “previously appealed and ruled
upon”); see also Ash Park, LLC v. Alexander & Bishop, Ltd., 2014 WI App 87,
¶19, 356 Wis. 2d 249, 853 N.W.2d 618 (“The law of the case doctrine is a
‘longstanding rule that a decision on a legal issue by an appellate court establishes
the law of the case, which must be followed in all subsequent proceedings in the
trial court or on later appeal.’” (Citation omitted).).

¶38 As we have explained, the timing of Prehn’s cross-appeal was
governed by WIS. STAT. RULE 809.10(2)(b). Under RULE 809.10(2)(b), Prehn
could cross-appeal “another judgment or order entered in the same action,” and the
orders from which Prehn cross-appealed are other judgments or orders entered in
this action. Prehn was required to initiate his cross-appeal “within the period
established by law for the filing of a notice of appeal, or 30 days after the filing of
a notice of appeal, whichever is later.” Id. Here, because the “period established
by law for the filing of a notice of appeal” of the cross-appealed orders had long
expired, the applicable deadline for appealing those orders became 30 days after
MEA filed its notice of appeal. MEA filed the notice of appeal of the circuit
court’s order denying the postjudgment motion on August 11, 2023, and Prehn

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No. 2023AP1478

filed his cross-appeal on August 18, 2023. Thus, Prehn’s cross-appeal was timely
filed under RULE 809.10(2)(b).10

B. Prehn was not aggrieved by the circuit court’s order granting him
summary judgment, so he may not cross-appeal that order.

¶39 Having concluded that Prehn’s cross-appeal is timely, we turn to
whether he was aggrieved by the circuit court’s summary judgment order because
if he was not aggrieved by that order, he cannot appeal it even if the cross-appeal
was timely. As a strange consequence of the parties’ arguments related to the
timeliness of the cross-appeal, Prehn argues that he was not aggrieved by the
summary judgment order, while MEA argues that he was. 11 We conclude that
Prehn was not aggrieved by the circuit court’s summary judgment order.

¶40 A party must be aggrieved by the judgment or order from which the
party appeals. Kiser, 312 Wis. 2d 621, ¶12. “A person is aggrieved if the

10
We observe that the cross-appeal statute offers far fewer options to respondents when
the appellant petitions for, and this court grants, permissive leave to appeal under WIS. STAT.
§ 808.03(2) and WIS. STAT. RULE 809.50. Fedders v. American Fam. Mut. Ins. Co., 230 Wis.
2d 577, 583-85, 601 N.W.2d 861 (Ct. App. 1999). In Fedders, we acknowledged the general
principle that “[o]nce the appellant has been granted an appeal, either on the basis of right or in
the court’s discretion, the respondent who was formerly required to bring a notice of review may
now utilize the cross-appeal procedure and have nonfinal orders reviewed.” Id. at 584 (quoting
State v. Alles, 106 Wis. 2d 368, 388, 316 N.W.2d 378 (1982); emphasis added). However, we
concluded that “[t]he reference to an appeal in the court’s discretion refers to the supreme court’s
discretion to grant a petition for review” and did not limit our discretion to decide whether to
grant review of nonfinal orders under § 808.03(2) and RULE 809.50. Fedders, 230 Wis. 2d at
584. Although the order granting leave to appeal has the effect of the filing of a notice of appeal
under RULE 809.50(3), we concluded that allowing respondents to cross-appeal “unrelated
interlocutory orders” would “severely hamper[]” our discretion to grant leave to appeal only those
interlocutory orders that satisfy the criteria in § 808.03(2). Fedders, 230 Wis. 2d at 583-84.
11
MEA argued that Prehn was aggrieved by the summary judgment order, and therefore,
his appeal from that order was required to be noticed under the deadline established for direct
appeals of final orders. Prehn, on the other hand, argued that he was not aggrieved by the
summary judgment order, and therefore, he could not have been required to cross-appeal that
order under the deadline established for direct appeals.

19
No. 2023AP1478

judgment or order bears ‘directly and injuriously’ upon his or her interests and
affects the person ‘in some appreciable manner.’” Id., ¶11 (quoting Weina v.
Atlantic Mut. Ins. Co., 177 Wis. 2d 341, 345, 501 N.W.2d 465 (Ct. App. 1993)).

¶41 Although a party may appeal portions of judgments that are adverse
to its interests even when that party prevailed overall, the portions appealed from
must actually affect the party in some appreciable manner. For example, in Lassa
v. Rongstad, 2006 WI 105, ¶¶26-29, 294 Wis. 2d 187, 718 N.W.2d 673, a
defendant in a defamation action appealed from a judgment entered upon a
settlement agreement that dismissed the claims against the defendant with
prejudice, but required him to pay $65,000 in discovery sanctions. In Edlin v.
Soderstrom, 83 Wis. 2d 58, 61-64, 264 N.W.2d 275 (1978), which was decided
under former WIS. STAT. ch. 817 and not under the current rules of appellate
procedure, the plaintiff appealed from a final judgment that denied her specific
performance of a real estate contract even though it granted all other relief she
requested.

¶42 If the portion of the judgment appealed from in Lassa was enforced,
the appellant would owe $65,000 to the respondent. If the portion of the judgment
appealed from in Edlin was enforced, the appellant would not get the specific
remedy she requested in her complaint. In this case, however, the circuit court
granted summary judgment to Prehn without qualification. In other words, unlike
the judgments in Lassa and Edlin, no part of the summary judgment order could
be enforced against Prehn to his detriment. The summary judgment order, even
the specific findings Prehn challenges, do not affect him in any appreciable
manner. Accordingly, because Prehn is not aggrieved by the circuit court’s
summary judgment order, he may not cross-appeal that order.

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No. 2023AP1478

C. The circuit court correctly denied Prehn’s motion to dismiss.

¶43 We now turn to Prehn’s cross-appeal of the circuit court’s order
denying his motion to dismiss for failure to state a claim, wherein he argued that
the communications requested were not “records” under WIS. STAT. § 19.32(2)
and that he was not an “authority” pursuant to § 19.32(1). No party disputes that
Prehn was aggrieved by this order, and we observe that a ruling in Prehn’s favor
would have an immediate, direct effect on the merits of MEA’s direct appeal (e.g.,
MEA’s direct appeal would fail if the requested communications were not
“records” under the Public Records Law).

¶44 “Whether a complaint states a claim upon which relief can be
granted is a question of law for our independent review[.]” Data Key Partners v.
Permira Advisers LLC, 2014 WI 86, ¶17, 356 Wis. 2d 665, 849 N.W.2d 693.
“When we review a motion to dismiss, factual allegations in the complaint are
accepted as true for the purposes of our review.” Id., ¶18. In our review here, we
must determine if the communications sought in MEA’s request were “records”
and if Prehn was an “authority” under the Public Records Law. These are
questions of statutory interpretation that we review independently. Nowell v. City
of Wausau, 2013 WI 88, ¶19, 351 Wis. 2d 1, 838 N.W.2d 852.

¶45 Before we begin our analysis, we highlight the explicit public
policies underlying the Public Records Law. The legislature declared in the Public
Records Law that “[e]xcept as otherwise provided by law, any requester has a
right to inspect any record.” WIS. STAT. § 19.35(1)(a). “[I]t is ... 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.” WIS. STAT. § 19.31. In light of this policy, the

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No. 2023AP1478

legislature has stated that the Public Records Law “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.” Id.

1. The requested communications are “records.”

¶46 Prehn contends that the unproduced text messages that were later
produced pursuant to the Protocol and scheduling order were not “records” under
the Public Records Law, and therefore neither he (nor the NRB or the DNR) were
required to disclose them. MEA’s public records request sought “[a]ll
communications” sent to or from Prehn “regarding his tenure on the [NRB],
including but not limited to any communication about remaining on the board past
the expiration of his term or otherwise declining to vacate his position on the
[NRB].” In Prehn’s view, the statutory definition of “record” does not include
communications reflecting his “purely personal” decision about whether to remain
in office past the expiration of his term like the text messages at issue.

¶47 We conclude that the unproduced text messages sought in MEA’s
request are “records” under the Public Records Law. We begin with the language
of the statute. Kalal, 271 Wis. 2d 633, ¶45. “Statutory language is given its
common, ordinary, and accepted meaning, except that technical or specially-
defined words or phrases are given their technical or special definitional
meaning.” Id. Moreover, “statutory language is interpreted in the context in
which it is used; not in isolation but as part of a whole; in relation to the language
of surrounding or closely-related statutes; and reasonably, to avoid absurd or
unreasonable results.” Id., ¶46.

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No. 2023AP1478

¶48 The term “record” is broadly defined under the Public Records Law.
A “record” is, in relevant part, “any material on which written ... or
electromagnetic information or electronically generated or stored data is recorded
or preserved, regardless of physical form or characteristics, that has been created
or is being kept by an authority[,]” except that a “record” does not include
“materials that are purely the personal property of the custodian and have no
relation to his or her office[.]” WIS. STAT. § 19.32(2).

¶49 On its face, MEA’s request seeks “records” under the Public
Records Law. The nature of a communication determines whether it is a “record”
under the Public Records Law, and communications that have a “connection to a
government function” are “records” under the Public Records Law. John K.
MacIver Inst. for Pub. Policy, Inc. v. Erpenbach, 2014 WI App 49, ¶18, 354
Wis. 2d 61, 848 N.W.2d 862; see also Nichols v. Bennett, 199 Wis. 2d 268, 274-
75, 544 N.W.2d 428 (1996) (“It is the nature of the documents and not their
location which determines their status under [WIS. STAT.] §§ 19.31 to 19.37.”).
Communications relating to, among other things, the affairs of government and the
official acts of public officers and employees are “records” under the Public
Records Law. Sec. 19.31. MEA’s request sought records with a connection to a
government function and Prehn’s office. The request specifically asked for
communications relating to Prehn’s intentions to remain in office by exercising a
power of that office to retain it as a holdover until a replacement was appointed by
the governor and confirmed by the senate. The argument that these unproduced
text messages lack a “connection to a government function” or are unrelated to
“the affairs of government” is contrary to their plain content. See John K.
MacIver Inst., 354 Wis. 2d 61, ¶18.

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No. 2023AP1478

¶50 Prehn argues that because MEA’s request sought records about his
decision to vacate or remain in his seat, we should construe the request as seeking
records of a “purely personal” decision. Prehn likens his situation to that of an
elected official’s decision whether to seek reelection.

¶51 We reject Prehn’s argument that the records are “purely personal”
and that his situation is analogous to that of an elected official contemplating
whether to seek reelection. First, WIS. STAT. § 19.32(2) says that a
communication is not a “record” if it is “purely the personal property of the
custodian and [has] no relation to his or her office[.]” (Emphasis added). As we
explained above, the communications sought by MEA were about whether a
power inherent to the office would be exercised, and the communications were
directly connected to the functions of government. Even Prehn admits in his brief
on appeal that “the decision to remain on the NRB had some connection to the
NRB.”

¶52 Second, Prehn’s situation is simply not analogous to an elected
official’s decision whether to seek reelection. An elected official does not have
the option to simply stay in office past the expiration of his or her term. Here,
however, Prehn’s power to holdover past the expiration of his term is derived
entirely from the office he held. See generally Kaul, 402 Wis. 2d 539. Put
another way, the government office Prehn held granted him the power to stay in
his seat past the expiration of his term until a replacement was appointed by the
governor and confirmed by the senate, and MEA sought records directly related to
Prehn’s decision to exercise that power. Prehn’s decision to remain in his seat
past the expiration of his term cannot be considered a “purely personal” decision
that had “no relation” to his office where the decision itself is whether to exercise
a power of that office. Accordingly, we conclude that the communications

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No. 2023AP1478

requested by MEA were not “purely personal” and were instead “records” under
the Public Records Law.

2. Prehn is not an “authority,” but under the circumstances of
the instant case, he is a necessary party under WIS. STAT.
§ 803.03(1).

¶53 Prehn also argues that he is not an “authority” under the Public
Records Law. Whether Prehn is an “authority” is significant and relevant to the
issue of who would be liable to MEA if it were awarded costs, reasonable attorney
fees, statutory damages, and punitive damages under WIS. STAT. § 19.37.12

¶54 Once again we begin with the statutory language. See Kalal, 271
Wis. 2d 633, ¶45. The definition of “authority” as set forth in WIS. STAT.
§ 19.32(1) reads:

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

12
WISCONSIN STAT. § 19.37(2)(a) specifies that “reasonable attorney fees, damages of
not less than $100, and other actual costs to the requester” may be awarded, and “[c]osts and fees
shall be paid by the authority affected or the unit of government of which it is a part, or by the
unit of government by which the legal custodian under [§] 19.33 is employed and may not
become a personal liability of any public official.” Section 19.37(3) says that “an authority or
legal custodian” may be liable for punitive damages if it “arbitrarily and capriciously denied or
delayed” a response to a record request.

25
No. 2023AP1478

There is no dispute that the NRB (a “board”) and the DNR (a “department”) are
both “authorities” under the Public Records Law. The parties’ arguments revolve
around whether a “state office” includes the individuals that hold that office, such
that Prehn is individually an “authority” under the law because he is a member of
an authority (specifically, Chair and Member of the NRB).

¶55 In short, Prehn claims that the only category of individuals (i.e.,
natural, living persons) listed in the statutory definition of “authority” is “elective
official,” while all the rest are entities. According to Prehn, he is an individual and
not an “elective official,” so he is not an “authority,” although the DNR and the
NRB are both “authorities.” MEA argues that Prehn is an “authority” because
Prehn holds a state office, and individuals who occupy a state office cannot, in an
official capacity, be divorced from the office itself under the Public Records Law.
MEA further argues that if Prehn is not an “authority” under the Public Records
Law, he is nonetheless a necessary party to the litigation under WIS. STAT.
§ 803.03(1) because Prehn had exclusive custody of responsive records, and MEA
could not obtain complete relief in his absence.

¶56 We agree with Prehn that he is not an “authority” under the Public
Records Law. However, we also agree with MEA that, under the circumstances of
this case, Prehn is a necessary party under WIS. STAT. § 803.03(1). Therefore,
although Prehn is not an “authority,” we nonetheless affirm the circuit court’s
order denying Prehn’s motion to dismiss. See State v. Earl, 2009 WI App 99, ¶18
n.8, 320 Wis. 2d 639, 770 N.W.2d 755 (“On appeal, we may affirm on different
grounds than those relied on by the trial court.”).

¶57 MEA contends, and the circuit court agreed, that a “state office” in
the statutory definition of “authority” includes the individual that holds the state

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No. 2023AP1478

office. The term “state office” is not defined in the Public Records Law.
However, a term closely-related in both proximity and substance, “state public
office,” is defined in WIS. STAT. § 19.32(4) as having “the meaning given in [WIS.
STAT. §] 19.42(13), but does not include a position identified in [WIS. STAT.
§] 20.923(6)(f) to (gm).”13 See Kalal, 271 Wis. 2d 633, ¶46 (explaining that
statutory language should be interpreted “in relation to the language of
surrounding or closely-related statutes”). Section 19.42(13), in turn, lists a variety
of “positions” that are considered “state public offices,” including “[a]ll positions
to which individuals are regularly appointed by the governor[.]” MEA says that
because Prehn was appointed to his position by Governor Walker, he holds a
“state public office,” and is therefore an “authority.”

¶58 We cannot agree with MEA. We need not resolve whether the term
“state office” in WIS. STAT. § 19.32(1)’s definition of “authority” has the same
meaning as “state public office” in § 19.32(4). Even if they have the same
meaning, the definition of “state public office” does not support MEA’s argument
that the individual that holds a “state public office” is an “authority” under the
Public Records Law. WIS. STAT. § 19.42(13)’s definition of “state public office”
includes a wide variety of governmental “positions,” and it specifically
differentiates between the “position” itself and the “individual” that holds the
“position.” See, e.g., § 19.42(13)(a) (including as a “state public office” “[a]ll
positions to which individuals are regularly appointed”); LAW REVISION
COMMITTEE NOTE, 1983, § 19.42 (“‘Individual,’ although not specifically defined

13
The specific positions listed in WIS. STAT. § 20.923(6)(f)-(gm) are not relevant to this
appeal except to the extent they identify positions in government, as opposed to the individuals
that hold those positions.

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No. 2023AP1478

in the current statutes or in this bill, is used consistently in this bill to refer to
natural persons.”). In this respect, the definition of “state public office” actually
supports Prehn’s position that “state office” refers to the office (i.e., the position)
and not the individual public official that holds the office.

¶59 Moreover, as Prehn highlights, other parts of the Public Records
Law do not make sense if we adopt MEA’s interpretation of “state office.” For
example, MEA’s interpretation of “state office” as including individual members
of an authority does not comport with the sections of the Public Records Law
governing how legal custodians are designated for authorities like the NRB.

¶60 Those relevant sections, WIS. STAT. § 19.33(4)-(5), govern the
designation of a legal custodian for authorities like the NRB. Section 19.33(4)
reads, in relevant part: “Every authority not specified in [§ 19.33](1) to (3) shall
designate in writing one or more positions occupied by an officer or employee of
the authority or the unit of government of which it is a part as a legal custodian to
fulfill its duties under this subchapter.”14

¶61 WIS. STAT. § 19.33(5) reads:

Notwithstanding [§ 19.33](4), if an authority specified in
[§ 19.33](4) or the members of such an authority are
appointed by another authority, the appointing authority
may designate a legal custodian for records of the authority
or members of the authority appointed by the appointing
authority, except that if such an authority is attached for
administrative purposes to another authority, the authority
performing administrative duties shall designate the legal
custodian for the authority for whom administrative duties
are performed.

14
WISCONSIN STAT. §§ 19.33(1)-(3) govern the designation of legal custodians for
elective officials, legislative committees, and joint committees.

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No. 2023AP1478

Sec. 19.33(5) (emphasis added).

¶62 WISCONSIN STAT. § 19.33(5) perfectly describes the relationship
between the relevant governmental actors in this litigation, and parts of this
subsection would lose meaning under MEA’s interpretation of “authority” as
including individual members of the NRB. Neither the NRB nor the DNR are
authorities “specified in [§19.33](1) to (3),” and members of the NRB, like Prehn,
are appointed by another authority, i.e., the governor. If “state office” had the
same meaning as “state public office,” and individuals who hold a “state public
office” were “authorities,” as MEA suggests, there would be no need to
differentiate between “authorities” and “members of authorities” appointed by
another authority in § 19.33(5). All members of an authority appointed by another
authority would also be “authorities” themselves because every one of those
appointed members would hold a “state office.” Put another way, MEA’s
interpretation would eliminate the distinction between authorities and appointed
members of those authorities that is plainly set forth in the language of § 19.33(5).

¶63 MEA argues that Moustakis v. DOJ, 2016 WI 42, 368 Wis. 2d 677,
880 N.W.2d 142, supports its argument that “an individual who occupies a state
office cannot, in an official capacity, be divorced from the office itself” under the
Public Records Law. The circuit court similarly relied on Moustakis for this
conclusion in its order denying Prehn’s motion to dismiss. However, in our view,
both MEA and the circuit court read too much into Moustakis. In Moustakis, an
elected county district attorney sued the Wisconsin Department of Justice to block
the release of records about him, claiming that he was an “employee” of an
“authority” entitled to notice and pre-release judicial review under WIS. STAT.
§ 19.356(4). Moustakis, 368 Wis. 2d 677, ¶¶2-3. The Moustakis court did not
analyze, conclude, or even imply that all individuals who hold a “state office” are

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No. 2023AP1478

“authorities” under the Public Records Law. Having been elected to the position
of district attorney, Moustakis was indisputably an “elective official,” and
therefore, an “authority” under the Public Records Law. Id., ¶43.

¶64 MEA says that the Moustakis court held that a district attorney
qualified as both an “elective official” and a “state office” as those terms are used
in the Public Records Law. See id. This is true, but it does not help MEA. The
position of district attorney is a “state office.” An individual who is elected to the
position of district attorney is also an “elective official,” and therefore, that person
is individually an “authority” under the Public Records Law. The Moustakis court
did not say that any individual holder of “state office,” elected or appointed, is an
“authority” because they hold a “state office.” In short, Moustakis is not helpful
in resolving the issue presented in this case. Accordingly, we conclude that while
the NRB is an “authority” under the Public Records Law, its individual members,
including Prehn, are not.

3. Prehn is a necessary party under WIS. STAT. § 803.03(1).

¶65 Although we conclude that Prehn is not an “authority” under the
Public Records Law, we note that Prehn concedes that he is a public official and
that, as a public official, he had statutory duties to preserve records. See WIS.
STAT. § 19.21 (relating to the responsibility of public officials to keep and
preserve records and other property of the office). With this obligation in mind,
we turn to whether, despite our conclusion that Prehn is not an “authority,” Prehn
is nonetheless a necessary party to this litigation under WIS. STAT. § 803.03(1).
MEA argues on appeal that Prehn is a necessary party under § 803.03(1)(a)
because he had exclusive possession and control of the records, and it could not

30
No. 2023AP1478

obtain “complete relief” without Prehn being a party to the case.15 MEA says that
the DNR and the NRB could not have complied with a mandamus order requiring
them to immediately search for and produce responsive records other than
requesting (again) that Prehn do so. For his part, Prehn responded to this
argument when it was raised in the circuit court, but he does not address this
argument on appeal. We agree with MEA that Prehn is a necessary party under
§ 803.03, and therefore, the circuit court properly denied Prehn’s motion to
dismiss.

¶66 A party can be deemed necessary under WIS. STAT. § 803.03 for any
one of three reasons set forth in § 803.03(1). Koschkee v. Evers, 2018 WI 82, ¶17,
382 Wis. 2d 666, 913 N.W.2d 878; Dairyland Greyhound Park, Inc. v.
McCallum, 2002 WI App 259, ¶9, 258 Wis. 2d 210, 655 N.W.2d 474. Two of
those reasons are relevant here. Section 803.03(1) specifies that a person “shall be
joined as a party” in an action if:

(a) In the person’s absence complete relief cannot be
accorded among those already parties; or

(b) The person claims an interest relating to the subject of
the action and is so situated that the disposition of the
action in the person’s absence may:

1. As a practical matter impair or impede the person’s
ability to protect that interest[.]

¶67 We conclude that, under the facts of the instant case, Prehn is a
necessary party under WIS. STAT. § 803.03(1). Here, MEA requested records
created by the NRB through one of its members (i.e., Prehn) regarding the exercise

15
In the circuit court, the DNR and the NRB also raised the issue that Prehn is a
necessary party to the litigation under the facts of the case.

31
No. 2023AP1478

of a power inherent to that member’s office. The DNR produced records
responsive to MEA’s request, but the production included no text messages. After
MEA clarified that the request included text messages, the DNR emailed Prehn to
clarify that texts were included in the request, and Prehn responded that he had
“no text on [his] phone for that.” MEA later discovered through a different public
records request that Prehn did, in fact, have texts on his phone responsive to
MEA’s records request, and litigation ensued.

¶68 From the outset of this litigation, the DNR and the NRB have taken
a position adverse to Prehn. In the circuit court, the DNR and the NRB agreed
with MEA that the requested communications were “records” under the Public
Records Law and must be produced, but the DNR and the NRB could not produce
the requested records voluntarily because Prehn had exclusive custody of the
requested records.

¶69 Reduced to the most basic level, this case presents a situation in
which a person makes a legally valid request for records in the exclusive custody
of a member of an authority who refused to relinquish control of the records to the
authority, despite requests by the authority that records be turned over, based on
the belief that they were not “records” under the Public Records Law. In such a
case, we know of no mechanism by which the authority could unilaterally take the
records or obtain the records from the member’s home or personal devices; the
member must turn them over. Therefore, the member of the authority becomes a
necessary party under WIS. STAT. § 803.03(1)(a) because the plaintiff requester
cannot obtain “complete relief”—the unproduced records—in the absence of the
member. Any mandamus order that the circuit court issued could bind only the
authority (i.e., the governmental entity), and it would not have the power to force
the member, not party to the litigation, to relinquish control of their personal

32
No. 2023AP1478

electronic devices for the purpose of searching for and producing responsive
records. By joining the member as a necessary party under § 803.03(1)(a), the
member is then under the court’s jurisdiction and may be compelled by the court
to search for and produce records that are in his or her exclusive possession or
control.

¶70 Even if the circuit court, in Prehn’s absence, could somehow compel
Prehn individually to search for and produce responsive records contained on his
personal electronic devices so that “complete relief” could be afforded, Prehn
would still be a necessary party under WIS. STAT. § 803.03(1)(b)1. because his
absence will, as a practical matter, impair or impede his ability to protect his
interest in nondisclosure of the records.

¶71 Our supreme court has explained that, under WIS. STAT.
§ 803.03(1)(b)1., “[t]he relevant inquiry in Wisconsin is thus not whether a
prospective party has a legal or legally protected interest in the subject of an
action, but whether the person or entity has an interest of such direct and
immediate character that the [prospective party] will either gain or lose by the
direct operation of the judgment.” Dairyland Greyhound Park, 258 Wis. 2d 210,
¶15 (cleaned up). In this case, MEA, the DNR, and the NRB have been in
consistent agreement that the records requested by MEA are, in fact, “records”
under the Public Records Law and must be produced. Prehn has maintained
throughout this litigation that the requested communications are not records and
are instead “purely personal” records not subject to disclosure under the Public
Records Law. If it were the case that “complete relief” could be afforded to MEA
in Prehn’s absence, it could only mean that a mandamus order issued in his
absence would bind him. He “will either gain or lose” custody and control of
those communications “by the direct operation of the judgment,” and no party in

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the litigation would advocate on Prehn’s behalf that the alleged records were in
fact “purely personal” communications unrelated to Prehn’s office. See id. Thus,
whether under § 803.03(1)(a) or § 803.03(1)(b)1., Prehn is a necessary party in
this litigation.

¶72 Accordingly, although we conclude that Prehn is not an “authority”
under the Public Records Law, we nonetheless affirm the circuit court’s denial of
Prehn’s motion to dismiss.

II. MEA’s direct appeal

A. The circuit court erroneously exercised its discretion when it denied
MEA’s WIS. STAT. § 806.07(1)(h) postjudgment motion.

¶73 Having resolved Prehn’s cross-appeal, we now turn to MEA’s direct
appeal of the circuit court’s order denying its postjudgment motion for relief from
the circuit court’s summary judgment order. Prehn argues that no extraordinary
circumstances exist justifying relief from judgment. In particular, Prehn says that
MEA should have directly appealed the circuit court’s summary judgment order to
raise the Blazel issue instead of moving for relief from judgment or
reconsideration.

¶74 Prehn also argues that MEA did not achieve a “judicially sanctioned
change in the parties’ legal relationship,” so it cannot be entitled to costs, fees, or
damages. In Friends of Frame Park, our supreme court concluded that a
requester needs to achieve a “judicially sanctioned change in the parties’ legal
relationship” before it is entitled to costs, attorney fees, and damages under WIS.
STAT. § 19.37(2)(a). “Four justices agree that to ‘prevail in whole or in substantial
part’ [under § 19.37(2)(a)] means the party must obtain a judicially sanctioned
change in the parties’ legal relationship.” Friends of Frame Park, 403 Wis. 2d 1,

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¶3 (cleaned up). However, Friends of Frame Park did not define what it means
to “achieve a judicially sanctioned change in the parties’ legal relationship.”
Prehn argues that “the only judicially sanctioned change a requester can achieve in
order to substantially prevail under [§] 19.37(1)(a) is a writ of mandamus,” which
MEA did not obtain. Therefore, MEA did not “achieve a judicially sanctioned
change” in its relationship with the Defendants, and its postjudgment motion was
properly denied on that basis.16

¶75 MEA responds that litigants are encouraged to request
reconsideration in the circuit court as a method of correcting errors, and it
highlights the fact that the circuit court appeared ready to award it summary
judgment only to reluctantly conclude that it could not because, under the circuit
court’s reading of Friends of Frame Park, the case became moot when Prehn
voluntarily produced the requested records. Finally, MEA says that the circuit
court erroneously exercised its discretion because it misinterpreted Blazel, and as a
consequence, applied the wrong legal standard.

¶76 We agree with MEA.

1. The circuit court based its decision to deny MEA’s postjudgment
motion on a manifestly incorrect legal standard, and the circuit
court should have granted relief.

¶77 We first discuss MEA’s argument under WIS. STAT. § 806.07(1)(h)
that a good and equitable reason justifies relief from judgement. We begin our

16
On appeal, the DNR and the NRB make similar arguments with respect to Wisconsin
State Journal v. Blazel, 2023 WI App 18, 407 Wis. 2d 472, 991 N.W.2d 450, the absence of
extraordinary circumstances, and whether MEA achieved a judicially sanctioned change in the
parties’ legal relationship.

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No. 2023AP1478

analysis by examining the relevant statutory language. Kalal, 271 Wis. 2d 633,
¶45. Section 806.07(1) allows courts to relieve a party from a judgment for a
variety of reasons. See Sukala v. Heritage Mut. Ins. Co., 2005 WI 83, ¶9, 282
Wis. 2d 46, 698 N.W.2d 610. Section 806.07(1)(h) is a catch-all provision,
allowing courts to grant relief from judgment for “[a]ny other reasons justifying
relief from the operation of the judgment.” “The evident purpose of § 806.07 is to
give a court authority to provide relief on equitable grounds … and the catch-all in
[§ 806.07(1)](h) shows that the enacting body intended this authority to be
broad[.]” Gittel v. Abram, 2002 WI App 113, ¶24, 255 Wis. 2d 767, 649 N.W.2d
661.

¶78 WISCONSIN STAT. § 806.07(1)(h) permits a court to grant a party
relief from a judgment based on subsequent changes in the law, but only in
“unique and extraordinary circumstances.” Sukala, 282 Wis. 2d 46, ¶12. “Unique
and extraordinary circumstances are those where the sanctity of the final judgment
is outweighed by the incessant command of the court’s conscience that justice be
done in light of all the facts.” Id. (cleaned up). “Courts should not interpret
[§ 806.07](1)(h) so broadly as to erode the concept of finality, nor should courts
interpret it so narrowly that truly deserving claimants are denied relief.” Id.

¶79 Whether to grant relief from judgment under WIS. STAT.
§ 806.07(1)(h) is a discretionary decision. Sukala, 282 Wis. 2d 46, ¶8. “A
discretionary decision contemplates a process of reasoning that depends on facts
that are in the record, or reasonably derived by inference from facts of record, and
a conclusion based on the application of the correct legal standard.” Id.
(emphasis added).

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No. 2023AP1478

¶80 While Prehn asserts that MEA was required to appeal from the
summary judgment order to obtain the relief it seeks, we agree with MEA that this
position both lacks supporting authority and directly contradicts guidance from our
supreme court with respect to how litigants should seek corrections to orders
issued by the circuit court. We have explained that the Wisconsin Supreme Court
“encourages litigants to request the [circuit] courts for reconsideration as a method
of correcting errors.” Harris v. Reivitz, 142 Wis. 2d 82, 89, 417 N.W.2d 50 (Ct.
App. 1987) (citing Kochel v. Hartford Accident & Indem. Co., 66 Wis. 2d 405,
418, 225 N.W.2d 604 (1975)). In addition to a circuit court’s inherent authority to
reconsider its prior rulings, WIS. STAT. § 806.07(1)(h) is also a vehicle whereby a
circuit court can “correct its errors.” Gittel, 255 Wis. 2d 767, ¶23. It simply is not
true that MEA was required, under these facts, to directly appeal the circuit court’s
summary judgment order to obtain the relief it sought.

¶81 We turn next to Prehn’s argument that the circuit court applied
reasonable interpretations of Friends of Frame Park and what it means to
“substantially prevail” under WIS. STAT. § 19.37(2)(a) such that the requester is
entitled to costs, attorney fees, and damages. Prehn asserts that these reasonable
interpretations constitute the correct legal standard. We disagree.

¶82 WISCONSIN STAT. § 19.37(2)(a) says that the circuit court “shall
award reasonable attorney fees, damages of not less than $100, and other actual
costs to the requester if the requester prevails in whole or in substantial part in any
action filed under [§ 19.37](1) relating to access to a record or part of a record
under [WIS. STAT. §] 19.35(1)(a).” Friends of Frame Park changed what it
means to “prevail” under the statute. When MEA filed this lawsuit, Friends of

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Frame Park had not yet been decided, and the causal nexus test for obtaining fees
after voluntary production of records was still the law.17

¶83 The supreme court issued Friends of Frame Park after the circuit
court denied Prehn’s motion to dismiss, but before the circuit court issued its
scheduling order requiring the search for and disclosure of responsive records.
The case was divided 1-3-3, and only the following two sentences garnered a
majority of justices: “Four justices agree that ‘to prevail in whole or in substantial
part’ means the party must obtain a judicially sanctioned change in the parties’
legal relationship. Accordingly, a majority of the court adopts this principle.”
Friends of Frame Park, 403 Wis. 2d 1, ¶3 (cleaned up); see also Blazel, 407
Wis. 2d 472, ¶37.

¶84 MEA and Prehn moved for summary judgment after Friends of
Frame Park was decided, and the circuit court relied on Friends of Frame Park
in its decision. The circuit court concluded that Prehn had violated the Public
Records Law and that he did so arbitrarily, but it ultimately awarded the
Defendants summary judgment and dismissed MEA’s complaint. The circuit
court interpreted Friends of Frame Park as having decided that the voluntary
disclosure of records mid-litigation by an authority before a judicially sanctioned
change in the parties’ legal relationship moots a requester’s lawsuit. Because
Prehn produced all requested records prior to any judicially sanctioned change in

17
Under the causal nexus test, “a party ‘prevails’ in a public records action if there is a
causal nexus between the requester bringing the action and the defendant providing the requested
records.” Friends of Frame Park, U.A. v. City of Waukesha, 2022 WI 57, ¶18, 403 Wis. 2d 1,
976 N.W.2d 263.

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the parties’ legal relationship, the circuit court concluded that the case was moot
and all three Defendants were entitled to summary judgment.

¶85 Approximately three weeks after the circuit court’s decision, we
issued Blazel. In Blazel, after a close examination of Friends of Frame Park, we
stated that “no majority of justices ruled that voluntary release of requested
records in the course of litigation of a public records action renders the action
moot.”18 Blazel, 407 Wis. 2d 472, ¶¶27-38. We further reiterated that under
existing precedent, “the voluntary disclosure of a requested record does not render
the action moot because a ruling on the merits ‘will have the practical effect of
determining the [requester’s] right to recover damages and fees under WIS. STAT.
§ 19.37(2)(a) based upon the [custodian’s] denial of its request.’” Id., ¶43
(quoting Portage Daily Reg., 308 Wis. 2d 357, ¶8; brackets in Blazel). We
concluded that “a decision on the merits of the [requester’s] challenge to the
[authority’s] initial outright denial of their records requests will have a practical
effect on the [requester’s] entitlement to attorney fees.” Blazel, 407 Wis. 2d 472,
¶43.

¶86 The circuit court’s order denying MEA’s postjudgment motion did
not apply Blazel, nor did it attempt to distinguish Blazel from the instant case.
Instead, the circuit court stated that if Blazel did not change the law, then Blazel
cannot supply the extraordinary circumstances needed for relief under WIS. STAT.
§ 806.07(1)(h). If Blazel did “change[] the law by ‘interpreting and clarifying’

18
Indeed, the circuit court acknowledged in its summary judgment order that Friends of
Frame Park did not reach a majority on the mootness issue because Justice Hagedorn, the author
of the majority opinion who would have been the deciding vote on the issue, said that he would
“reserve this question for another day.” Friends of Frame Park, 403 Wis. 2d 1, ¶25; see also
Blazel, 407 Wis. 2d 472, ¶39.

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[Friends of Frame Park] and/or WIS. STAT. § 19.37(2),” then MEA failed to
explain why extraordinary circumstances existed separate and apart from the fact
that “the law changed.”

¶87 Additionally, in a lengthy footnote, the circuit court explicitly
rejected Blazel’s interpretation of Friends of Frame Park. It stated:

It is therefore important—strictly for explaining
why [MEA’s] new arguments on reply do not warrant
further eroding value in finality—to point out that Blazel
may be unsound. The court of appeals says that, contrary
to the holding of [Friends of Frame Park]: (1) a demand
for fees is never moot because fees have a practical effect,
(2) so a party may always seek a fee award, (3) thus
bootstrapping the judicially sanctioned change which
[Friends of Frame Park] requires in the first instance.

I am not alone in observing the illogical result. As
Judge Fitzpatrick pointed out, this “misses a mandated
step ... [t]here must first be a ruling about the delay[.]”

We addressed this concern in Blazel, and in any event, the circuit court is bound to
apply Blazel’s holdings.19

19
We stated:

The dissent emphasizes the need in this context for “a
grant of judicial remedy or relief concerning the delay in
production of the records.” … Here, there was such a grant, in
the form of the ruling of the circuit court that the delay was
unreasonable.

(continued)

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No. 2023AP1478

¶88 Circuit courts do not have the authority to disregard binding
precedent from this court, no matter how strongly they may disagree with it.
Blazel’s interpretation of Friends of Frame Park is binding, authoritative, and
must be followed by both the court of appeals and the circuit courts unless and
until our supreme court weighs in on the issue, which to date, it has not. See Cook
v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).

¶89 Moreover, MEA made many of the same arguments to the circuit
court as it now does on appeal that extraordinary circumstances exist justifying
relief from the circuit court’s summary judgment order under WIS. STAT.
§ 806.07(1)(h). We agree with MEA that extraordinary circumstances exist in this
situation.

¶90 In this case, the circuit court appeared ready to award MEA
summary judgment only to reluctantly conclude that it could not because, under
the circuit court’s reading of Friends of Frame Park, the case became moot when
Prehn voluntarily produced the requested records. We find it novel that the

Further we observe that, under the reasoning in the
dissent, there would appear to be no chance for a party ever to
obtain relief for a claim of delay in the release of requested
public records and that no majority of justices in Friends of
Frame Park endorsed such a rule. In this case, the amended
complaint alleged that the Assembly violated the public records
law in part by unreasonably delaying before ultimately releasing
the requested records. A claim of unreasonable delay can by
definition only ever be asserted after the records have been
released, after the delay but before a court has had an
opportunity to decide such issues as whether the records were
required to be released and the circumstances of eventual release.
The dissent’s approach would have the effect of eliminating
unreasonable delay as a cause of action for which relief may be
granted.

Blazel, 407 Wis. 2d 472, ¶44 n.14.

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summary judgment order so heavily favored the losing party, with the circuit court
explicitly stating that Prehn violated the Public Records Law and did so arbitrarily
and capriciously, but it could not award MEA any relief under its misinterpretation
of Friends of Frame Park. We further observe that both Friends of Frame Park
and Blazel were decided after the lawsuit was filed. As MEA points out, several
different rules were in place regarding MEA’s right to recover costs and attorney
fees while this case was pending before the circuit court.

¶91 Prehn argues that no “extraordinary circumstances” exist because
MEA should have directly appealed the summary judgment order, but again, as we
explained above, no case, statute, or rule required MEA to directly appeal that
order. In fact, our case law encourages MEA to do exactly what it did here: file a
motion for relief from judgment or reconsideration to give the circuit court an
opportunity to correct its mistake. We find it extraordinary in this case that MEA
was, according to the circuit court, entitled to summary judgment, and the only
hurdle that stood in MEA’s way was the circuit court’s misreading of Friends of
Frame Park, a misreading that was explicitly rendered incorrect by Blazel.

¶92 MEA followed this preferred procedure, highlighting for the circuit
court that the only justification for its summary judgment order was now, post-
Blazel, inarguably wrong, and gave the circuit court an opportunity to correct its
error. Instead, the circuit court refused to apply Blazel, despite the fact that there
is no material difference between the requester in Blazel and MEA in this case.
Both requesters had their lawsuits incorrectly declared moot by a court based on
the mid-litigation production of requested records. Defendants ask us to construe
WIS. STAT. § 806.07(1)(h) far too narrowly, so narrowly that a “truly deserving
claimant[]” is denied relief. Sukala, 282 Wis. 2d 46, ¶12. In our view, under the
unique circumstances set forth above, “the sanctity of the final judgment is

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outweighed by the incessant command of the court’s conscience that justice be
done in light of all the facts.” Id. (cleaned up).

¶93 For the same reasons (i.e., the circuit court’s misapplication of
Friends of Frame Park in light of Blazel and as explained in this decision), we
also conclude that the circuit court should have granted MEA’s motion for
reconsideration (assuming that MEA did not meet the standard for relief
applicable to WIS. STAT. § 806.07(1)(h)). To succeed on a motion for
reconsideration, a movant may present “‘a manifest error of law’” committed by
the circuit court to support the motion. Bauer v. Wisconsin Energy Corp., 2022
WI 11, ¶13, 400 Wis. 2d 592, 970 N.W.2d 243 (citations omitted). “[A] ‘manifest
error’ must be more than disappointment or umbrage with the ruling; it requires a
heightened showing of ‘wholesale disregard, misapplication, or failure to
recognize controlling precedent.’” Id., ¶14 (citation omitted). If it is true, as the
circuit court posited, that Blazel made no change to the law, then that could only
mean that it was true at the time the circuit court decided the parties’ cross-
motions for summary judgment that, under applicable authority not modified or
reversed by the supreme court, “the voluntary disclosure of a requested record
[did] not render the action moot because a ruling on the merits will have the
practical effect of determining the requester’s right to recover damages and fees
under WIS. STAT. § 19.37(2)(a) based upon the custodian’s denial of its request.”
Blazel, 407 Wis. 2d 472, ¶43 (cleaned up). Again, if that was the state of the law
at the time the parties filed cross-motions for summary judgment, then the circuit
court did indeed commit “a manifest error of law” in that it misapplied controlling
precedent that was not modified by Friends of Frame Park.

¶94 Accordingly, whether Blazel did or did not effectuate a change in the
law, whether by operation of WIS. STAT. § 806.07(1)(h) or via the circuit court’s

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inherent authority to reconsider its prior rulings, the circuit court should have
granted MEA relief and erroneously exercised its discretion by not doing so.

2. MEA achieved a judicially sanctioned change in the parties’ legal
relationship.

¶95 Finally, we turn to the argument that MEA did not achieve a
judicially sanctioned change in the parties’ legal relationship under Friends of
Frame Park. We conclude that MEA achieved at least one judicially sanctioned
change in the parties’ legal relationship. Specifically, we highlight both the circuit
court’s scheduling order that incorporated the Protocol agreed to by the parties
requiring the search for and disclosure of responsive records and the circuit court’s
order denying Prehn’s motion to dismiss.

¶96 Prehn spills much ink arguing that the only “judicially sanctioned
change” possible in an action brought under WIS. STAT. § 19.37(1)(a) is the
issuance of a writ of mandamus, and because MEA did not obtain a writ, it cannot
have “prevailed” in the action such that it is entitled to an award of costs and
attorney fees under § 19.37(2)(a). This is not the law. In our view, if the only
possible avenue to “prevail” was to obtain a writ of mandamus, then Friends of
Frame Park would have said so. As we explained in Blazel, such a conclusion
would render null all actions under the Public Records Law based on unreasonable
delays in disclosing public records because these claims can, by definition, only
ever be asserted after the records have been released. Blazel, 407 Wis. 2d 472,
¶44 n.14. Instead, Friends of Frame Park left undefined the phrase “judicially
sanctioned change in the parties’ legal relationship.”

¶97 Blazel held that a judicial finding that the original denial or delay
violated the Public Records Law was sufficient to create a judicially sanctioned

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change in the parties’ legal relationship, even if the records were produced mid-
litigation. Id., ¶¶3, 79. The circuit court arguably did make this finding in its
order granting summary judgment to the Defendants, although it believed it could
award no relief. That fact notwithstanding, this case presents two other “judicially
sanctioned change[s] in the parties’ legal relationship.”

¶98 First, we discuss the circuit’s court scheduling order that
incorporated the terms of the Protocol requiring Prehn to search for and produce
responsive records. In April 2022, after the circuit court properly denied Prehn’s
motion to dismiss, the parties agreed to a Forensic Inspection Protocol that
included procedures for identifying responsive documents and a schedule for
review and disbursement of responsive records. This agreed upon Protocol, by
itself, may not have risen to the level of a judicially sanctioned change in the
parties’ legal relationship. But in this case, the parties submitted that agreement to
the circuit court. The circuit court approved the Protocol and incorporated both
the Protocol and its review and disbursement schedule into the scheduling order.
In other words, the circuit court issued an order that required Prehn to work with a
retained forensic expert who would search for and provide responsive records to
MEA by September 2, 2022. This is unquestionably a judicially sanctioned
change in the parties’ legal relationship because the circuit court literally ordered
Prehn to cooperate with the search for and production of responsive records.

¶99 We reject the assertion that Prehn voluntarily provided responsive
records mid-litigation where the circuit court ordered him to search for records and
produce them consistent with the agreed upon Protocol. Agreeing to the Protocol
might have been voluntary at its inception, but following through and complying
with the Protocol became mandatory after the circuit court incorporated it into its
scheduling order. The search for and production of these records was the first

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No. 2023AP1478

item of relief requested in MEA’s complaint. We see no other way to interpret an
order of the circuit court compelling Prehn to search for and disclose records
responsive to the record request at the center of this lawsuit other than a “judicially
sanctioned change in the parties’ legal relationship.”

¶100 Second, we discuss the circuit court’s order denying Prehn’s motion
to dismiss. In our view, this order also constitutes a “judicially sanctioned change
in the parties’ legal relationship.” Friends of Frame Park, 403 Wis. 2d 1, ¶3. As
we explained above, Prehn was the only party advocating the position that the
requested communications were not “records” under the Public Records Law—
MEA, the DNR, and the NRB all agreed that the communications were “records”
that were required to be produced. The circuit court authoritatively concluded that
the requested communications were “records.” In our view, the circuit court’s
order represents an authoritative ruling on the merits of the lawsuit. We construe
the circuit court’s order as a “judicially sanctioned change in the parties’ legal
relationship” because it affirmatively ended the dispute about whether the
requested communications were or were not “records.”

¶101 In sum, regarding MEA’s direct appeal, we conclude the
following: (1) MEA was not required to directly appeal the circuit court’s
summary judgment order to obtain relief, and in fact, we reaffirm our preference
that litigants should, when possible, move the circuit court for reconsideration or
for relief from judgment under WIS. STAT. § 806.07 to give the circuit court the
opportunity to correct its errors; (2) the circuit court applied a manifestly incorrect
standard of law when it denied MEA’s motion; (3) “extraordinary circumstances”
exist to justify relieving MEA from the summary judgment, and the circuit court
should have granted relief to MEA; and (4) MEA achieved a judicially sanctioned

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change in the parties’ legal relationship. Accordingly, we reverse the circuit
court’s order denying MEA’s motion for relief from judgment.

CONCLUSION

¶102 We conclude that: (1) Prehn’s cross-appeal is timely; (2) Prehn is not
aggrieved by the circuit court’s order granting him summary judgment, so he
cannot cross-appeal that order; (3) the circuit court correctly denied Prehn’s
motion to dismiss because the requested communications are “records,” and
although Prehn is not an “authority” under the Public Records Law, he is a
necessary party to this litigation under WIS. STAT. § 803.03(1); (4) the circuit
court erroneously exercised its discretion when it denied MEA’s postjudgment
motion because it based its decision on a manifest error of law; (5) extraordinary
circumstances exist in this case justifying relief from judgment under WIS. STAT.
§ 806.07(1)(h); and (6) MEA achieved a judicially sanctioned change in the
parties’ legal relationship.

¶103 Accordingly, as to the cross-appeal, we affirm the circuit court’s
order denying Prehn’s motion to dismiss; regarding MEA’s direct appeal, we
reverse the circuit court’s order denying MEA’s motion for relief from judgment
or, alternatively, reconsideration, and we remand for further proceedings
consistent with this opinion.

¶104 No costs awarded on the cross-appeal.

By the Court.—On appeal, final order reversed and cause remanded
with directions; on cross-appeal, nonfinal order affirmed.

Recommended for publication in the official reports

47