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. 2023AP1476-FT Cir. Ct. No. 2021CV2521

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

AMERICAN OVERSIGHT,

PETITIONER-RESPONDENT,

V.

ROBIN VOS,

RESPONDENT-APPELLANT.

APPEAL from orders 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. 2023AP1476-FT

¶1 PER CURIAM. Robin Vos,1 as the Speaker of the Wisconsin State
Assembly, appeals from orders of the circuit court requiring him (“or the unit of
government of which his office is a part”) to pay certain costs and fees to American
Oversight (AO). Based upon our review of the briefs and Record, we conclude that
the bill of costs at issue was filed within the statutory timeframe, so there was no
erroneous exercise of discretion by the circuit court in affirming the clerk’s taxation
of costs to be paid by Vos or in denying Vos’s motion for reconsideration of the
same. We affirm.

¶2 The parties do not dispute the relevant facts, but only their legal
significance. AO brought a mandamus action seeking to compel Vos to search for
and produce records pursuant to Wisconsin’s Public Records Law.2 The circuit
court granted partial summary judgment to AO and ordered Vos to pay “reasonable
attorney fees, damages of not less than $100, and other actual costs to American
Oversight under WIS. STAT. § 19.37(2).”3 On January 6, 2023, AO filed a Motion
to Determine Costs, Fees, and Damages, along with a brief and affidavits in support
of its fee petition. Vos opposed this motion, objecting to AO’s fee petition and
filing his own brief and supporting declaration on February 3. AO filed a reply brief
in support of its motion, with additional affidavits, on February 17.

1
Even though Robin Vos is named in his official capacity, we refer to him as “Vos”
throughout this opinion.
2
AO refers to the “Open Records Law,” which is the Public Records Law set forth in WIS.
STAT. §§ 19.31-19.37 (2021-22). All references to the Wisconsin Statutes are to the 2021-22
version unless otherwise noted.
3
The circuit court denied Vos’s motion for reconsideration of part of the summary
judgment order, but Vos did not seek reconsideration of the part of the order related to costs and
fees.

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No. 2023AP1476-FT

¶3 On February 23, 2023, the circuit court made its ruling on AO’s fee
petition. It ordered Vos to pay AO costs, attorney fees, and damages amounting to
$135,574.03. In addition, the court ordered Vos to pay $7,637.00 for the costs and
fees associated with AO’s reply brief in support of its fee petition motion—but this
part of the order was stayed for seven days to give Vos an opportunity to object to
those supplemental costs and fees. Vos did not file an objection to the February 23
order. Thus, the total amount Vos was ordered to pay was $143,211.03.

¶4 On March 10, AO electronically submitted to the circuit court both a
Notice of Entry of Final Order and a proposed bill of costs. The bill of costs
reflected the amount awarded in the circuit court’s February 23 order: $143,211.03.
While the Notice was accepted by the electronic filing system and stamped “filed”
with that same date—March 10, 2023—counsel for AO received an email from the
clerk of the circuit court stating that its bill of costs had been “rejected.” The email
further stated: “The reason given for the rejection is: Printed, to be completed by
the clerk. No need to refile.” Just over two months later, on May 15, the clerk
signed and posted the bill of costs—still reflecting the $143,211.03 from the court’s
February 23 order—to the electronic record for the case.

¶5 On May 25, 2023, Vos filed a motion objecting to the taxation of
costs, arguing that AO failed to perfect judgment within thirty days of the March 10
entry of judgment as required by WIS. STAT. § 806.06(4) and thus had forfeited its
right to recover costs. The circuit court rejected this argument on June 27 and denied
Vos’s subsequent motion for reconsideration on July 5. Vos appeals from both
orders.

¶6 “Awards of costs are a matter of discretion for the circuit court, and
will not be disturbed absent an erroneous exercise of discretion.” Grube v. Daun,

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No. 2023AP1476-FT

213 Wis. 2d 533, 553-54, 570 N.W.2d 851 (1997). We review a circuit court’s
decision on a motion for reconsideration under the same erroneous exercise of
discretion standard. Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival
Popcorn Wagons, Ltd., 2004 WI App 129, ¶6, 275 Wis. 2d 397, 685 N.W.2d 853.
Under this standard, we reverse if the circuit court “fails to examine the relevant
facts, applies the wrong legal standard, or does not employ a demonstrated rational
process to reach a reasonable conclusion.” Borreson v. Yunto, 2006 WI App 63,
¶6, 292 Wis. 2d 231, 713 N.W.2d 656. Issues of statutory interpretation, which may
be necessary to determine the correct legal standard, are reviewed de novo on
appeal. Marotz v. Hallman, 2007 WI 89, ¶15, 302 Wis. 2d 428, 734 N.W.2d 411.

¶7 Vos’s argument is that AO did not perfect its judgment because it did
not file its bill of costs within thirty days of the March 10 entry of final judgment.
Although WIS. STAT. § 806.06(4) states in relevant part that “the party in whose
favor the judgment is rendered shall perfect it within 30 days of service of notice of
entry of judgment or forfeit the right to recover costs,” and § 806.06(1)(c) states that
“judgment is perfected by the taxation of costs and the insertion of the amount
thereof in the judgment,” this court’s Soletski opinion makes clear that a prevailing
party’s timely filing of its bill of costs within thirty days of the entry of judgment
satisfies the time limit set forth in the statute. Soletski v. Krueger Int’l, Inc., 2019
WI App 7, ¶37, 385 Wis. 2d 787, 924 N.W.2d 207. This is because “the most that

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No. 2023AP1476-FT

a prevailing party can do to perfect a judgment is request that a clerk effect taxation.”
Id.4

¶8 Thus, the question is whether AO’s submission of its bill of costs on
March 10 can be deemed a “filing.” When filing is done with paper documents,
“filing has been seen as the moment when counsel submitted a document to the
clerk, who then accepted it.” State v. Aderemi, 2023 WI App 8, ¶17, 406 Wis. 2d
132, 986 N.W.2d 306. Electronic filing, however, adds some complications.
According to the statute governing electronic filings, WIS. STAT. § 801.18(4), the
date of filing is the date a document is submitted—“so long as it is subsequently
accepted by the clerk.” Notably, “there is no deadline in the statute for the clerk to
accept the file.” Aderemi, 406 Wis. 2d 132, ¶20. This court has stated that it “will
not hold the litigant responsible for the actions of the clerk accepting the digital
files.” Id., ¶25.

¶9 In this case, the clerk eventually accepted (on May 15) the proposed
bill of costs attached to AO’s Notice of Entry of Final Order that was submitted on
March 10, and stamped “filed” on that same date. Although Vos disputes this fact
and argues that the clerk “never accepted AO’s bill of costs for filing,” we cannot
agree when the very same proposed bill of costs submitted by AO was filled in and
then signed by the clerk, who, on May 15, marked the final bill of costs “filed.” Nor
are we persuaded that AO was required to refile the bill of costs or seek judicial

4
See also the following opinions where mistakes by a court clerk are not attributed to the
filing party: Werner v. Hendree, 2011 WI 10, 331 Wis. 2d 511, 795 N.W.2d 423; Estate of Ristau,
144 Wis. 2d 421, 424 N.W.2d 203 (1988); Boston Old Colony Ins. Co. v. International Rectifier
Corp., 91 Wis. 2d 813, 284 N.W.2d 93 (1979); Hamilton v. DILHR, 56 Wis. 2d 673, 203 N.W.2d
7 (1973), abrogated by Evans v. Bureau of Local and Regional Planning, 72 Wis. 2d 593, 241
N.W.2d 603 (1976).

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No. 2023AP1476-FT

relief as Vos suggests, especially when the message that AO received informed AO
that there was “No need to refile.”5 Moreover, we observe that the clerk’s “No need
to refile” message suggests that the clerk considered the proposed bill of costs to
have already been “filed” along with the Notice of Entry of Final Order because the
message informed AO that it did not have to file the proposed bill of costs again.
Thus, we conclude that March 10 was the date AO filed the bill of costs under the
statute and that judgment was timely perfected under Soletski.

¶10 We further note that Vos did not suffer prejudice as a result of the
clerk’s message suggesting the Notice of Entry of Final Order and a proposed bill
of costs stamped “filed” had been rejected. Pursuant to WIS. STAT. § 801.18(16)(c),
courts are allowed to provide appropriate relief resulting from failures of the court
electronic filing system, and this provision is to be “liberally applied to avoid
prejudice to any person using the electronic filing system in good faith.” In
Aderemi, this court emphasized that the non-filing party “suffered no prejudice from
the irregularities that occurred” with electronic filing of the information against him.
406 Wis. 2d 132, ¶27.

¶11 Here, the Notice of Entry of Final Order and proposed bill of costs
were both submitted on March 10, and the email message indicating that the
document had been rejected also noted that refiling was not required. Vos did not
raise any challenge to the proposed bill of costs under WIS. STAT. § 801.18(16)(c)
based on a lost opportunity to object to it, in the motion challenging the perfection
of costs, or in the motion for reconsideration. By the time of the circuit court’s
February 23 ruling, the parties had already litigated (or chose not to object to) every

5
This message came from a “WisconsinCourtsEFile@wicourts.gov” account with
instructions not to reply to the message because “[m]ail sent to this email account will not be read.”

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No. 2023AP1476-FT

item included in the proposed bill of costs. The costs ultimately awarded by the
clerk after taxation were the same as those ordered by the court and included in
AO’s March 10 submission of its proposed bill of costs. Thus, the message sent
after AO’s submission and the clerk’s later signing and posting of the bill of costs
did not deprive Vos of a meaningful opportunity to object, and Vos suffered no
prejudice. Under these circumstances, we conclude there was no erroneous exercise
of discretion either in the circuit’s court’s order affirming the clerk’s taxation of
costs or in denying Vos’s motion for reconsideration.

¶12 No costs for this appeal shall be awarded to either party.

By the Court.—Orders affirmed.

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

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