American Oversight v. Robin Vos

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.
December 26, 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. 2022AP1532 Cir. Ct. No. 2021CV2440

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

AMERICAN OVERSIGHT,

PETITIONER-RESPONDENT,

V.

ROBIN VOS, EDWARD BLAZEL AND WISCONSIN STATE ASSEMBLY,

RESPONDENTS-APPELLANTS.

APPEAL from an order of the circuit court for Dane County:
DIANE SCHLIPPER, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Lazar, 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. 2022AP1532

¶1 PER CURIAM. American Oversight sought records under the
Public Records Law1 from the Wisconsin State Assembly, Assembly Speaker
Robin Vos, and Assembly Chief Clerk Edward Blazel (collectively, the Assembly
Appellants) relating to contractors engaged in an election investigation. Believing
the Assembly Appellants had not fulfilled their statutory disclosure obligations,
American Oversight successfully pursued mandamus relief and, later, contempt
based on the Assembly Appellants’ failure to produce requested documents. At
the conclusion of the litigation, the circuit court concluded American Oversight
was entitled to an attorneys’ fees award of approximately $98,000.

¶2 The Assembly Appellants’ appeal. Their arguments attacking the
order awarding attorneys’ fees can be broadly categorized in two groups. They
first challenge the validity of the contempt order, asserting that Vos and Blazel
were improperly subject to the mandamus order and that American Oversight
failed to make a prima facie showing that any of the Assembly Appellants had
violated it. We conclude Vos and Blazel have forfeited their specific challenge to
the mandamus order by failing to raise it below. We also conclude the circuit
court did not erroneously exercise its discretion when it determined American
Oversight had satisfied its burden of showing a prima facie violation of the
mandamus order.

¶3 The Assembly Appellants’ remaining arguments generally assert that
the circuit court erroneously exercised its discretion by awarding more in
attorneys’ fees than American Oversight was entitled to. They first assert no

1
See WIS. STAT. §§ 19.32 to 19.37 (2021-22). All references to the Wisconsin Statutes
are to the 2021-22 version unless otherwise noted.

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No. 2022AP1532

attorneys’ fees can be awarded for the contempt because no further responsive
documents were ultimately produced. Next, they argue no attorneys’ fees can be
awarded under the Public Records Law or the contempt statutes for the work of
American Oversight’s in-house legal counsel. Finally, they assert the court failed
to adequately set forth its exercise of discretion on the record. We reject each of
these arguments, conclude the court’s award of attorneys’ fees reflects a proper
exercise of discretion, and affirm on that basis.

BACKGROUND

¶4 On May 26, 2021, Vos announced that the Assembly planned to hire
three former law enforcement officers and a supervising attorney to investigate the
November 2020 election. In June, the Assembly retained former Wisconsin
Supreme Court Justice Michael Gableman to supervise the investigation. Reacting
to the public announcement, American Oversight submitted public records
requests to the Assembly Appellants on July 20, 2021 and August 12, 2021. As
described by American Oversight, the requests sought documents and
communications “with the potential to shed light on the role of contractors in the
Wisconsin Assembly’s investigation of the November 2020 election.”2 For ease
of reading, this opinion will refer to the records sought as the “contractor records.”

¶5 Vos and Blazel produced some records in response to American
Oversight’s requests. Other requests went unanswered or were met with claims of

2
American Oversight’s petition described three July requests for contractor records: a
“July Organizing Materials Request,” a “July Work Product Request,” and a “July
Communications Request.” The August requests were follow-up requests that sought
“substantively the same categories of records as those sought by American Oversight’s previous
requests, but for a more recent time period.”

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No. 2022AP1532

no responsive records. American Oversight believed these responses (or non-
responses) were inadequate and incomplete, noting in particular that the
disclosures did not appear to reflect any attempt to search the records of Gableman
or associated Assembly contractors. Under the theory that WIREdata, Inc. v.
Village of Sussex, 2008 WI 69, 310 Wis. 2d 397, 751 N.W.2d 736, made the
Assembly Appellants responsible for disclosing such contractor records, American
Oversight took legal action.

¶6 On October 8, 2021, American Oversight petitioned the circuit court
for a writ of mandamus compelling the Assembly Appellants to produce the
requested records. American Oversight accompanied the petition with an
application for an alternative writ of mandamus.3 American Oversight also sought
reasonable attorneys’ fees and costs pursuant to WIS. STAT. § 19.37(2).

¶7 The circuit court issued the alternative writ of mandamus and
ordered the Assembly Appellants either to release the records sought by American
Oversight or to show cause at a hearing on November 5, 2021, as to why the
records should not be released. On or near the hearing date, the Assembly
Appellants filed an answer to the application for an alternative writ, appearing to
concede that they had produced only records in their “custody” and had not
produced the contractor records American Oversight sought.

3
“Mandamus” generally refers to a legal remedy to compel a government actor to fulfill
a mandatory duty when there is no discretion in the matter. See State ex rel. Milwaukee Police
Ass’n v. Jones, 2000 WI App 146, ¶7 n.7, 237 Wis. 2d 840, 615 N.W.2d 190 (citing mandamus,
BLACK’S LAW DICTIONARY (7th ed. 1999)). An alternative writ of mandamus is a “mandamus
issued upon the first application for relief, commanding the defendant either to perform the act
demanded or to appear before the court at a specified time to show cause for not performing it.”
Id.

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¶8 Instead, the Assembly Appellants argued they were under no
obligation to turn over any contractor records because any such records were now
in the possession of the “Office of Special Counsel” (OSC), a “‘formally
constituted subunit’ of the Committee on Assembly Organization” that was
created in late August 2021. They asserted, therefore, that the OSC was the
“authority” to which American Oversight’s requests should be directed, and as a
corollary, that none of them was an “authority” under the public records law with
respect to “records related to Justice Gableman’s investigation.”

¶9 At the November 5 show-cause hearing, the circuit court concluded
mandamus relief was appropriate. It determined that even if OSC later became a
separate authority, the Assembly Appellants were responsible for releasing any
contractor records created prior to that time. The court ordered the Assembly
Appellants to produce within ten business days any responsive contractor records
that existed on or prior to August 30, 2021. The court also concluded that any
objections to disclosure had been forfeited by the Assembly Appellants’ failure to
raise them, except insofar as the records were specifically exempted from
disclosure by statute.

¶10 A few weeks later, American Oversight moved for remedial
sanctions against the Assembly Appellants. As grounds, the motion asserted that
nearly all of the records disclosed pursuant to the mandamus order were
duplicative of records that had previously been produced—records that the
Assembly Appellants had conceded were not the contractor records American
Oversight sought.4 Among other things, American Oversight noted a lack of

4
According to American Oversight, 27 of the 148 pages of records produced following
the circuit court order might have been contractor records, based upon a title page that said “Open
(continued)

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No. 2022AP1532

records during the time Gableman worked as a coordinating attorney, including
from publicized interstate trips related to the investigation, as well as “election
integrity reports” referenced on a public-facing investigation website. Vos,
individually, filed a response to the contempt motion, asserting that the motion
was deficient, that he was not subject to the mandamus order because he was not a
party to any contracts with the investigators, and that in any event he had complied
with the mandamus order.

¶11 At a hearing on the contempt motion, the circuit court expressed
concern with Vos’s response, insofar as it offered no clarity regarding what efforts
the Assembly Appellants had made to comply with the mandamus order. Because
of this lack of clarity, the court concluded sanctions were inappropriate at that
time. However, over the Assembly Appellants’ objection, the court required a
record custodian to appear at an evidentiary hearing to testify about the Assembly
Appellants’ efforts to comply with the mandamus order.

¶12 Based on the subsequent testimony of Blazel and Steve Fawcett,
legal counsel to the Assembly Speaker’s office, the circuit court concluded
remedial contempt sanctions were appropriate against Vos and the Assembly.5 In
a detailed order, the court wrote that the testimony at the evidentiary hearing
“revealed a collective and abject disregard for the Court’s order,” in that Vos “had

Records produced by WI Special Counsel 11/19/21.” However, American Oversight noted those
pages included records that had been previously produced or that were created by the Assembly
Appellants and not the contractors.
5
The circuit court found that sanctions against Blazel would be duplicative of sanctions
against the Assembly, which bore primary responsibility for the records under WIS. STAT.
§ 19.33(7).

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No. 2022AP1532

delegated the search for contractors’ records to an employee who did nothing more
than send one vague email to one contractor.”

¶13 As remedial sanctions, the circuit court entered an order requiring
Vos and the Assembly to pay American Oversight’s costs and fees incurred in
bringing the contempt motion. The court provided Vos and the Assembly fourteen
days to purge the contempt, with a $1,000 forfeiture for each day of
noncompliance after that time. The purge conditions, among other things,
required Vos and the Assembly to provide evidentiary proof of compliance with
their duties under the Public Records Law and to provide evidentiary proof of
reasonable efforts to search for lost, missing or unavailable responsive records.

¶14 Following the contempt order, counsel for the Assembly Appellants
filed a letter and supporting declarations asserting that Vos and the Assembly had
complied with the purge conditions. American Oversight disagreed. The
Assembly Appellants resisted the notion that more was required of them to
preserve and produce contractor records, repeatedly asserting that they “don’t have
control over Mr. Gableman.”6 The circuit court therefore required the Assembly
Appellants to provide an affidavit from Gableman regarding what efforts he had
undertaken to comply with the Public Records Law as the Assembly Appellants’
contractor during the time period in question.

¶15 Gableman submitted an affidavit and appeared as a witness at the
follow-up June 23, 2022 hearing. Based upon his testimony, the circuit court

6
Vos and Blazel, along with several other contractors and attorneys, provided
declarations in connection with the request to purge the contempt, but there was no declaration
authored by Gableman.

7
No. 2022AP1532

concluded the purge conditions were satisfied. In essence, the court accepted
Gableman’s testimony that very little work had been done during the early months
of the investigation, and records that would have been responsive to American
Oversight’s requests had been routinely deleted. The court concluded there were
“no more documents to be gained” as a result of the contempt, and it left the
matter open as to whether other sanctions under the Public Records Law were
appropriate given the destruction and non-production of responsive documents.

¶16 American Oversight then submitted a motion for costs, fees and
damages, seeking approximately $93,000 in attorneys’ fees and costs for the
merits and contempt phases.7 That amount was bifurcated as
follows: approximately $17,000 in attorneys’ fees for the merits phase (i.e., from
inception until the mandamus order), pursuant to WIS. STAT. § 19.37(2)(a); and
approximately $76,000 in attorneys’ fees for the contempt phase, pursuant to WIS.
STAT. § 785.04(1)(a). Both amounts were calculated using the “lodestar” method
of multiplying actual hours expended by a reasonable hourly rate. See Meinecke
v. Thyes, 2021 WI App 58, ¶23 n.9, 399 Wis. 2d 1, 963 N.W.2d 816. The
Assembly Appellants challenged the reasonableness of some of the attorneys’ fees
and asserted that the amount of the fees should be reduced based on American
Oversight’s status as a non-profit corporation.

¶17 After chronicling the extensive history of the litigation, the circuit
court concluded an award of attorneys’ fees was appropriate in both the merits and
contempt phases, and that the lodestar method was an appropriate way to

7
American Oversight also sought punitive damages, which request was rejected by the
circuit court on the basis that taxpayers would ultimately bear the burden of a punitive damages
award.

8
No. 2022AP1532

determine those fees. The court found the evidence submitted by American
Oversight was sufficient to justify its fee request, except for an inadvertently
duplicated filing fee of $189. It entered an order granting approximately $98,000
in attorneys’ fees (the original $93,000 request supplemented by an additional
$5,000 reflecting work through July 27, 2022). The Assembly Appellants now
appeal the order awarding attorneys’ fees.

DISCUSSION

¶18 The Assembly Appellants’ challenges to the attorneys’ fees award
fall into two general categories. They first challenge the validity of the circuit
court’s contempt finding. Vos and Blazel argue the mandamus order—and, it
follows, the contempt order—was void as to them because they were not parties to
any contract that would obligate them to produce contractor records. Next, the
Assembly Appellants argue there could be no contempt in the first instance
because American Oversight failed to make a prima facie showing that they had
violated the mandamus order.

¶19 The Assembly Appellants’ second categorical argument has several
facets, all of which generally contend the circuit court erroneously exercised its
discretion by awarding more in attorneys’ fees than American Oversight was
entitled to. The Assembly Appellants first assert that no attorneys’ fees can be
awarded for the contempt because no further responsive documents were
ultimately produced. Next, they argue no attorneys’ fees can be awarded under
the Public Records Law or the contempt statutes for the work of American
Oversight’s in-house legal counsel. Finally, they assert the court failed to
adequately set forth its exercise of discretion on the record.

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No. 2022AP1532

¶20 For the reasons set forth below, we reject these arguments and affirm
the circuit court’s discretionary determinations as to the appropriate amount of
attorneys’ fees.

I. The Assembly Appellants’ attempts to challenge the validity of the contempt
order fail.

A. Vos and Blazel have forfeited their argument that the mandamus order
is void because they were not parties to an unspecified contract, and
any subsequent voiding of the mandamus order would not automatically
eliminate the contempt finding.

¶21 Vos and Blazel first challenge the costs and fees award, contending
they could not be held in contempt because the underlying mandamus order was
unlawful.8 They argue that because “neither Vos nor Blazel had a contract with
any election investigator, they cannot be responsible for the production of
contractors’ records pursuant to WIS. STAT. § 19.36(3).”

¶22 No variation of this argument was presented to the circuit court prior
to or during the November 5, 2021 hearing, after which the court entered the
relevant mandamus order. “[T]he often repeated rule in this state [is] that issues
not considered by the circuit court will not be considered for the first time on
appeal.” Jackson v. Benson, 218 Wis. 2d 835, 901, 578 N.W.2d 602 (1998).

¶23 The Assembly Appellants respond that they did raise the issue of
their status as nonparties to a contract in their answer to the petition for an
alternative writ of mandamus. To the contrary, their answer only contained a

8
We note Blazel was specifically excluded from the contempt order.

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No. 2022AP1532

generic denial that each of Vos, Blazel, and the Assembly was “an authority in
regard to records related to Justice Gableman’s investigation.”9

¶24 Even if Vos and Blazel intended by this denial to raise a contractual
defense, their argument here fails. “A litigant must raise an issue with sufficient
prominence such that the trial court understands that it is being called upon to
make a ruling.” Bishop v. City of Burlington, 2001 WI App 154, ¶8, 246 Wis. 2d
879, 631 N.W.2d 656. Nothing about Vos’s and Blazel’s blanket denials alerted
the circuit court that their status as nonparties to an unspecified contract were
relevant to the court’s consideration of the alternative writ.

¶25 Nor did Vos and Blazel present such an argument at the November 5
hearing. The Assembly Appellants offered a “boiled-down, real easy response” to
American Oversight’s request for records: the request “should go to the Office of
Special Counsel.” The Assembly Appellants argued that office had sole custody
of any responsive records and should be the sole entity to determine whether there
were exceptions to disclosure. In articulating this argument, Vos and Blazel—
who were represented by the same counsel as the Assembly—did not maintain that
they were immunized against the record request because they were not parties to a
contract. As a result of their failure to develop a contractual argument before the
circuit court, Vos and Blazel are precluded from raising it now for the first time.

¶26 Moreover, even if Vos and Blazel believed the mandamus order was
erroneous, their beliefs in that respect did not absolve them of responsibility for

9
An “authority” under the Public Records Law is defined to include a list of entities or
officials having custody of a record. See WIS. STAT. § 19.32(1). The answer acknowledged that
each of the Assembly Appellants was an “authority” for other records.

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No. 2022AP1532

compliance. Until an order is reversed through the appellate process, a litigant
must abide by its terms. State v. Campbell, 2006 WI 99, ¶49, 294 Wis. 2d 100,
718 N.W.2d 649. And even if the mandamus order was to be set aside, doing so
would not automatically erase a finding of contempt or eliminate an award of
damages based on the contemptuous behavior. See Getka v. Lader, 71 Wis. 2d
237, 246-47, 238 N.W.2d 87 (1976). We are unpersuaded by Vos and Blazel’s
attempts to distinguish Campbell and Getka.

B. The circuit court did not erroneously exercise its discretion when it
found the Assembly Appellants in contempt of the mandamus order.

¶27 A circuit court may impose remedial sanctions for the purpose of
terminating a continuing violation of a court order. See WIS. STAT. §§ 785.01(3);
785.02. The court’s use of the contempt power is reviewed for an erroneous
exercise of discretion. City of Wisconsin Dells v. Dells Fireworks, Inc., 197
Wis. 2d 1, 23, 539 N.W.2d 916 (Ct. App. 1995). We will uphold an exercise of
discretion if the court examined the relevant facts, applied a proper standard of
law, and, using a demonstrated rational process, reached a conclusion that a
reasonable judge could reach. Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320
N.W.2d 175 (1982).

¶28 The Assembly Appellants do not appear to challenge the circuit
court’s determination that at the January 2022 hearing, they failed to satisfy their
burden of demonstrating their conduct was not contemptuous. See Joint Sch.
Dist. No. 1 v. Wisconsin Rapids Educ. Ass’n, 70 Wis. 2d 292, 321, 234 N.W.2d
289 (1975). Rather, their argument is that the burden never shifted to them in the
first instance, because American Oversight failed to make a prima facie showing
that the mandamus order had been violated. See id.

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No. 2022AP1532

¶29 The circuit court did not erroneously exercise its discretion when it
determined American Oversight had made a prima facie showing that the
mandamus order had been violated. As an initial matter, the Assembly Appellants
acknowledge that American Oversight identified one document (an email from
Gableman to Vos) that fell within the scope of the requested records but was not
produced. At a minimum, American Oversight’s identification of one responsive
but undisclosed record was sufficient to permit the court to infer that not all
responsive contractor documents had been produced, contrary to the mandamus
order.

¶30 The Assembly Appellants, however, argue that American Oversight
had to additionally show that the email “was possessed by Respondents when its
request was made” and “that it existed as of August 30, 2021.” The Assembly
Appellants’ invention of a “possession” requirement is inapt, insofar as the basis
for the mandamus order was their failure to produce records in their contractors’
possession. See WIREdata, 310 Wis. 2d 397, ¶89 (holding a municipality may
not avoid liability under the Public Records Law by delegating responsibility to an
independent contractor to collect, maintain and keep its records). As for whether
the document existed on August 30, 2021: the email itself was dated August 17,
2021, and the Assembly Appellants do not explain why that was insufficient to
create an inference the document still existed just two weeks later.10

¶31 American Oversight identified other factual matters supporting an
inference that not all responsive documents had been produced. American

We assume, in accordance with the Assembly Appellants’ argument, that August 30,
10

2021, was the applicable date of preservation.

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No. 2022AP1532

Oversight noted that none of the work product required by the various contracts
had been disclosed. American Oversight also argued that it was inconceivable that
the contractors had generated only twenty-seven pages of contractor records
despite the breadth and scope of the elections investigation through August 30,
2021, which included the creation of a public-facing webpage inviting reports of
fraud and trips to Arizona and South Dakota for investigative purposes. Based on
this information, the circuit court could reasonably conclude that American
Oversight had made a prima facie showing sufficient to shift the burden to the
Assembly Appellants to demonstrate compliance with the mandamus order.

II. The circuit court did not erroneously exercise its discretion when it
awarded American Oversight its attorneys’ fees.

¶32 The Assembly Appellants next challenge the circuit court’s award of
attorneys’ fees to American Oversight. First, they argue that American Oversight
cannot recover attorneys’ fees relating to the contempt phase of the proceedings
because no further responsive documents were ultimately produced. Second, they
argue that in both the merits and the contempt phases, attorneys’ fees attributable
to the work of in-house counsel for a non-profit corporation are not recoverable.
Third, they assert the court failed to sufficiently articulate its exercise of discretion
when it awarded $98,000 in attorneys’ fees. We reject these arguments as set forth
below.

A. The circuit court acted within its discretion when awarding American
Oversight its attorneys’ fees relating to the contempt under WIS. STAT.
§ 785.04(1)(a).

¶33 Under WIS. STAT. § 785.04(1)(a), sanctions for remedial contempt
may include “[p]ayment of a sum of money sufficient to compensate a party for a
loss or injury suffered by the party as the result of a contempt of court.” This is a

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No. 2022AP1532

make-whole provision, Rand v. Rand, 2010 WI App 98, ¶8, 327 Wis. 2d 778, 787
N.W.2d 445, and it is well-established that the amount can include attorney fees
and other litigation costs, Town of Seymour v. City of Eau Claire, 112 Wis. 2d
313, 320, 332 N.W.2d 821 (Ct. App. 1983).

¶34 The Assembly Appellants argue American Oversight was entitled to
nothing because it was “not successful in the contempt proceeding,” insofar as no
further responsive records were ultimately produced.11 In so arguing, the
Assembly Appellants do not cite to any case law interpreting WIS. STAT.
§ 785.04(1)(a).12 Rather, the Assembly Appellants appear to conflate a remedial
contempt sanction with WIS. STAT. § 19.37(2), which makes attorney fees
available to a records requester who “prevails in whole or in substantial part” in an
action to enforce the Public Records Law. We are unpersuaded the availability of
reasonable attorney fees under the make-whole provision of § 785.04(1)(a) is
contingent upon the production of additional records.

11
Oddly, in the very next section of their brief-in-chief, the Assembly Appellants
directly contradict this argument by asserting that “Chapter 785 is not a prevailing party statute in
which the prevailing party is entitled to an award of attorney’s fees.” We address below this
related argument challenging the propriety of an attorney fees award for the work of in-house
counsel.
12
The closest they come is in their reply brief when citing Rand v. Rand, 2010 WI App
98, 327 Wis. 2d 778, 787 N.W.2d 445, which was at least a state contempt case. Rand, however,
considered a different statutory authorization for an award of attorney fees, see WIS. STAT.
§ 767.54(3), and a different issue: whether the failure of the movant to obtain relief on all the
asserted grounds for contempt precluded an award of the full attorney fees incurred when
prosecuting the contempt motion. The court resolved that issue by applying the “Radford rule
[which gauges the substantial success of a party] … to family law disputes under § 767.54,”
Rand, 327 Wis. 2d 778, ¶8 (citation omitted), but so far as we can tell the rule has never been
applied to remedial sanctions awarded under WIS. STAT. § 785.04(1)(a).

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No. 2022AP1532

B. The circuit court did not erroneously exercise its discretion when it
awarded American Oversight reasonable attorneys’ fees for the work of
its in-house counsel.

¶35 The Assembly Appellants also assert the circuit court erred when it
awarded reasonable attorneys’ fees to American Oversight for hours worked by
American Oversight’s in-house counsel. The Assembly Appellants argue such
fees are not available under either the Public Records Law or the contempt
statutes.

1. The Assembly Appellants have failed to demonstrate that the
circuit court erroneously exercised its discretion when awarding
in-house attorneys’ fees under the Public Records Law.

¶36 As mentioned above, if a “requester prevails in whole or in
substantial part” in a mandamus action under WIS. STAT. § 19.37(1), the circuit
court “shall award reasonable attorney fees.” Sec. 19.37(2)(a). The Assembly
Appellants argue the court erred when it concluded a record requester that is a
non-profit corporation may recover attorney fees based on time expended by its in-
house counsel. The Assembly Appellants argue that permitting the recovery of
such attorney fees would not advance the public policy goals of the Public
Records Law.

¶37 We disagree, as there is an explicit legislative directive 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.”
WIS. STAT. § 19.31. This statement of policy applies to the Public Records Law’s
enforcement provisions. Meinecke, 399 Wis. 2d 1, ¶14. The Assembly
Appellants cite no state case adopting their interpretation of WIS. STAT.
§ 19.37(2)(a). And they acknowledge a “vast body of federal authority under
federal fee shifting statutes and the Freedom of Information Act that have allowed

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a for-profit corporation to recover attorney’s fees for in-house counsel,” even
while they rely on case law to the contrary from two Midwestern states.

¶38 In our view, although Wisconsin case law does not address this
specific point of law, existing authority on fee-shifting provisions and the public
policy undergirding the Public Records Law favor American Oversight’s
interpretation. Specifically, in Shands v. Castrovinci, 115 Wis. 2d 352, 340
N.W.2d 506 (1983), a tenant brought suit against her landlord with the help of
Legal Action of Wisconsin, a public interest law services organization. Id. at 356.
Like the Public Records Law, the applicable statutory framework in that case
contained a mandatory fee-shifting provision that contained no restrictions. Id. at
357.

¶39 The Shands court upheld an award of reasonable attorney fees,
concluding that even though Legal Action of Wisconsin did not charge its clients
for legal services rendered, the organization advanced the objectives of the
legislation by litigating individual claims, by enforcing the general public policy
objective of protecting tenants’ rights, and by encouraging landlords to comply
with their statutory duties. Id. at 360. For similar reasons, we conclude that a
reasonable attorney fees award under WIS. STAT. § 19.37(2)(a) may include fees
based on time expended by a non-profit corporation’s in-house legal counsel.

¶40 The Assembly Appellants argue this conclusion is contrary to State
ex rel. Young v. Shaw, 165 Wis. 2d 276, 477 N.W.2d 340 (Ct. App. 1991), but
that case is easily distinguishable. There, we concluded that reasonable attorney
fees are not available to a litigant-attorney pursuing a mandamus action pro se.
We reasoned that “[t]he provision for attorney[] fees implies the existence of an
attorney-client relationship. If that relationship does not exist, the fees cannot be

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No. 2022AP1532

awarded.” Id. at 295. Here, the Assembly Appellants do not argue American
Oversight lacked an attorney-client relationship with its in-house legal counsel so
as to preclude an award of attorney fees under Shaw.

2. The Assembly Appellants have failed to establish that the circuit
court erroneously exercised its discretion when awarding
attorneys’ fees for work by in-house counsel relating to the
contempt.

¶41 Again relying on the make-whole nature of contempt sanctions, the
Assembly Appellants argue that reasonable attorney fees are unavailable under
WIS. STAT. § 785.04(1)(a) for work performed by in-house counsel. The contours
of this argument are unclear; as best we can tell, the Assembly Appellants appear
to argue American Oversight’s fee request does not reflect the actual expenses
incurred by the assignment of in-house counsel to the contempt matter.

¶42 As with WIS. STAT. § 19.37(2)(a), we do not perceive WIS. STAT.
§ 785.04(1)(a) to restrict the amount of attorney fees available for the work of in-
house counsel. If the idea is merely that an attorney fees award arising from the
contemptuous conduct of the opposing party should reflect actual costs incurred,
the Assembly Appellants have failed to demonstrate that American Oversight
received excessive compensation.13

13
There appears to be a conflict in the case law about the standard of review to apply
when reviewing the amount of an attorney fees award under WIS. STAT. § 785.04. Compare
Town of Seymour v. City of Eau Claire, 112 Wis. 2d 313, 321, 332 N.W.2d 821 (Ct. App. 1983)
(“This court independently reviews attorney[] fees whenever they are challenged on appeal.”)
with Benn v. Benn, 230 Wis. 2d 301, 308, 602 N.W.2d 65 (Ct. App. 1999) (“[T]he circuit court’s
award of attorney fees under § 785.04 is a discretionary act.”). Because the Assembly
Appellants’ assertions arguably implicate a matter of statutory interpretation, for the sake of this
particular argument we apply a de novo standard of review. See Seider v. O’Connell, 2000 WI
76, ¶26, 236 Wis. 2d 211, 612 N.W.2d 659.

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No. 2022AP1532

¶43 Specifically, aside from citing Shaw, the Assembly Appellants do
not dispute the notion that American Oversight sustained some loss by directing its
staff attorney hours to litigating the contempt. Those were hours the staff
attorneys were unavailable to address other matters. The operative question, then,
concerns the delta between the market rate requested by American Oversight and
the actual cost of the legal services rendered.

¶44 On this point, the Assembly Appellants have no answer. They
merely assert that American Oversight was entitled to nothing for its in-house staff
work—an argument plainly contrary to the “make-whole” purpose of the statute.
The record below is no more enlightening; in their briefing, without citation to
anything in the circuit court record, the Assembly Appellants merely remarked
that “Attorney Colombo and the other [American Oversight] attorneys are salaried
employees.” The Assembly Appellants have not directed us to any evidence that
the staff attorneys for American Oversight were actually paid less than the
designated market rate. Accordingly, the Assembly Appellants have failed to
demonstrate the court awarded excessive attorneys’ fees under WIS. STAT.
§ 785.04(1)(a).

C. The circuit court’s ruling on American Oversight’s attorneys’ fees
request adequately demonstrates an exercise of discretion.

¶45 The Assembly Appellants’ final argument is that the circuit court’s
comments demonstrate it failed to exercise its discretion at all when it awarded
American Oversight most of its requested attorneys’ fees. Review of an exercise
of discretion looks to whether the court employed “a logical rationale based on the
appropriate legal principles and facts of record.” Kolupar v. Wilde Pontiac
Cadillac, Inc., 2004 WI 112, ¶22, 275 Wis. 2d 1, 683 N.W.2d 58. When
exercising its discretion, a court must explain its reasoning on the record to ensure

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No. 2022AP1532

the soundness of its own decision making and to facilitate judicial review. State v.
Scott, 2018 WI 74, ¶38, 382 Wis. 2d 476, 914 N.W.2d 141.

¶46 The circuit court here adequately stated its rationale for adopting
much of American Oversight’s attorneys’ fee request. It explicitly referred to the
lodestar method and to the evidence American Oversight submitted as being
sufficient to justify the fee request. The Assembly Appellants appear to argue the
court should have undertaken a more rigorous process of explaining precisely why
it was rejecting their various challenges to the billing statements. But not only
were many of those challenges conclusory (for example, baldly labeling the
amount of time for a particular task as “excessive”), they were also implicitly
rejected by the court given its comments. In truth, what the Assembly Appellants
ask us to do is substitute our judgment for that of the circuit court, which we will
not do. See Kolupar, 275 Wis. 2d 1, ¶22.

By the Court.—Order affirmed.

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

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