State ex rel. BADKE v. Greendale Village Board
173 Wis.2d 553 (1993)

494 N.W.2d 408

                                          Contents: Pages 553-588
STATE of Wisconsin                        553 559 565 571 577 583

EX REL. Fred BADKE,                       554 560 566 572 578 584

        Bernice Badke,                    555 561 567 573 579 585

        Michael T. Sullivan, Jr.,         556 562 568 574 580 586

        Jeanne Sullivan and               557 563 569 575 581 587

        Richard Lennertz, M.D.,           558 564 570 576 582 588



Plaintiffs-Appellants-Petitioners,        RELATED CITATIONS



v.



VILLAGE BOARD OF the VILLAGE OF GREENDALE and

Village of Greendale, Defendants-Respondents.



Supreme Court No. 91-0126.



Oral argument September 2, 1992.      Decided January 26, 1993.



(Review of a decision of the court of appeals.)
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PAGE 559
REVIEW of a decision of the Court of Appeals affirming

an order of the Circuit Court for Milwaukee County,

Judge Gary A. Gerlach.  Reversed.  Rights declared.
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PAGE 560
For the plaintiffs-appellants-petitioners there were

briefs by Elizabeth Adelman and Adelman, Adelman & Murray, S.C.,

Milwaukee and oral argument by Elizabeth Adelman.



For the defendants-respondents there was a brief by James P Burns

and John T. Wasielewski, Greendale and oral argument by James P.

Burns and John T. Wasielewski.



Amicus Curiae was filed by Linda M. Clifford and LaFollett &

Sinykin, Madison for Wisconsin Newspapers Association and

Wisconsin Freedom of Information Council.



Amicus Curiae was filed by Curtis A. Witynski,

Madison for League of Wisconsin Municipalities.



WILLIAM A. BABLITCH, J.



A majority of the members of the seven member Village Board of

the Village of Greendale (Village Board) regularly attended

meetings of their Plan Commission, including four meetings

at which a proposed housing project (the Sileno project)

was discussed.]



The Village Board had ultimate decisionmaking responsibility on

the project.  It is undisputed that there was no intent to

violate the open meeting law.  Nevertheless, the question is

whether their attendance at these four meetings constituted

"meetings" within the meaning of Wisconsin's Open Meeting Law,

thus necessitating a notice to the public of their attendance.



The Village Board asks us to affirm the court of appeals'

decision that this case is moot, and, accordingly,

not address any of the issues presented.



Because a determination that this case is moot would thwart the

purpose of the open meeting law, we decline to follow the court

of appeals with respect to mootness. We will address all issues.
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PAGE 561
We hold that when, as here, one-half or more of the members of a

governmental body attend a meeting of another governmental body

in order to gather information about a subject over which they

have decisionmaking responsibility, such a gathering is a

"meeting" within the meaning of the open meeting law,

unless the gathering is social or chance.



Given that a majority of the Village Board trustees regularly

attended these meetings, and such attendance was anticipated by

the trustees, these gatherings were clearly not social or chance.



Accordingly, notice of these meetings was required.



Petitioners (cumulatively referred to as Badke) also allege that

the failure of the Village Board to move the meeting at which the

Village Board voted on the Sileno project to an adequately sized

room to handle overcrowding or provide amplification so that all

who wanted to attend the meeting could clearly hear the

proceedings was a violation of the open meeting law's

requirement to hold meetings "open to all

citizens at all times."



Given the facts, we find this claim to be

without any merit whatsoever.



To literally interpret the words "open to all citizens at all

times" would lead to unreasonable and absurd results.





These words demand reasonableness, not literal adherence.



The meeting was held at the village hall which holds 55 people

and has an adjacent foyer that holds approximately 20 people.



At most, three people were ultimately denied

entrance because of the crowd.





Under the facts and circumstances presented, holding

the meeting at the village hall was reasonable.



There was no violation.



The relevant facts follow.



Developer, Joseph Sileno (Sileno) applied to the Village of

Greendale for a special use permit to construct a 364 unit

apartment complex on a 56 acre, vacant parcel of land.
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PAGE 562
Under the Village of Greendale's procedures, such an application

is first given to the Plan Commission for its recommendation and

then to the Village Board for its final decision.



Sileno presented its proposal at four Plan Commission meetings.



Advance notice of the Plan Commission meetings was

provided as required under the open meeting law.





The village clerk also mailed each Village Board trustee notice

of the Plan Commission meetings and copies of the

agendas for the meetings.





The Village Board is comprised of seven trustees,

two of whom also serve on the Plan Commission.



A quorum of the Village Board attended each of the Plan

Commission meetings.





As stated in Badke's brief:



     Prior to each of the plan commission meetings,

     the Village gave notice that the plan commission was

     holding a meeting.





     The Village sent the notices of the plan commission

     meetings to the Board of Trustees.



     As admitted by the Village, a quorum of the Village

     Board attended each of four (4) plan commission

     meetings at which the Sileno proposal was presented.

     Four (4) trustees attended the December meeting at

     which Sileno and its architect made a presentation

     and answered questions from the Village staff.



     Five(5) trustees attended the January plan commission

     meeting at which the Sileno architect made another

     presentation, the Village staff expressed density and

     traffic concerns.





     Plan commissioners and a Village Trustee, who was not on the

     commission, engaged in a discussion with the architect.





     Five (5) trustees attended the February plan commission

     meeting at which the Sileno architect described changes made

     to respond to concerns expressed at the prior meeting

     and the Village planner and commissioners commented.



     All seven (7) Village trustees attended the April plan

     commission meeting at which the Village manager and Sileno

     architect made presentations, plan commissioners commented

     and then voted to recommend approval with a few

     modifications. Badke brief at 7 (citations omitted).
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PAGE 563
Trustees who attended the Plan Commission meetings

submitted affidavits stating that they attended the

meetings as interested observers and citizens.



Subsequent to the Plan Commission's recommendation to

approve Sileno's application, the Village Board

met to vote on the proposal.





The Village Board met for its meeting in the village hall,

a facility which holds 55 people.





The village hall also has a foyer that can accommodate

approximately 20 people.





Prior to April 17, 1990, the day of the meeting, the Village

Board received a petition signed by more than 1,600 village

residents opposing Sileno's plan.



Additionally, a resident sent the village manager a letter

asking that the village hold the meeting at another site.



Police were assigned to the meeting for crowd control.



From the record, we discern that no more than three people,

if that, were ultimately denied entrance into the meeting.



The press attended the meeting.



There is testimony in the record that some citizens who could not

get into the village hall and remained in the foyer were unable

to hear the proceedings, but there is also evidence to indicate

that the proceedings were clearly audible in the foyer except

during those times the crowd itself became disruptive.





 The Village Board approved Sileno's application at this meeting.



Fred Badke and other Greendale residents filed an action in the

circuit court alleging that the Village Board violated the open

meeting law's requirement that all meetings of local governmental

bodies "shall be open to all citizens at all times."  The circuit

court issued a preliminary injunction to prevent the Sileno

development from proceeding.
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PAGE 564
Following the issuance of the temporary injunction, the Village

Board reconvened and revoted on Sileno's application in a

proceeding that complied with the open meeting law.





 After the revote, both parties stipulated to dissolve the

temporary injunction.



The plaintiffs amended their initial complaint to seek

declaratory relief regarding the alleged April 17 violation and

added a second claim that the open meeting law was violated by

not giving public notice of a Village Board meeting when a quorum

of the Village Board attended the Plan Commission meetings on the

proposed development.





 Both parties moved for summary judgment on the two claims.



The circuit court granted the Village Board's motion for summary

judgment and dismissed Badke's complaint on the grounds that the

Village Board had substantially complied with the laws'

requirements and that to require a "supertechnical" standard of

compliance would unduly burden local governments.





 On appeal, the court of appeals held that the Village Board's

second meeting at which it held a revote on the Sileno project

mooted the controversy and that none of the exceptions to the

mootness doctrine applied.





 We accepted Badke's petition for review.



When reviewing a grant or denial of a motion for summary

judgment, we apply the standards set forth under sec. 802.08(2),

Stats., which provides that the judgment sought shall be rendered

only if the "pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of

law."  In addition, "even if there are no disputed material

facts, summary judgment is not appropriate if reasonable

alternative inferences may be drawn from these facts: in such a

situation, a trial is proper."  Ervin v. City of Kenosha, 159

Wis.2d 464, 478-79, 464 N.W.2d 654 (1991) (citation omitted).
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PAGE 565
At oral argument, the parties agreed that there is no issue as to

any material fact.





Accordingly, we determine whether only one reasonable inference

can be drawn from the undisputed material facts and entitle Badke

or the Village Board to judgment as a matter of law.



                              I.



We first discuss the issue of mootness.





Badke seeks a declaratory judgment that the Village Board's

actions violated the open meeting law.





In its brief, before directly addressing mootness, the Village

Board claims that certain prerequisites to obtaining declaratory

relief have not been satisfied in this case.





First, the Village Board claims that this case does

not present a justiciable controversy.





We disagree.



In Loy v. Bunderson, 107 Wis.2d 400, 410, 320 N.W.2d 175 (1982),

this court determined that a justiciable controversy must exist

between the parties before declaratory relief may be obtained. 

Specifically, we stated:



     There must exist a justiciable controversy Ä

     that is to say:



     (1)  A controversy in which a claim of right is

          asserted against one who has an interest

          in contesting it.



     (2)  The controversy must be between persons

          whose interests are adverse.



     (3)  The party seeking declaratory relief must have

          a legal interest in the controversy Ä that is

          to say, a legally protectible interest.



     (4)  The issue involved in the controversy must be

          ripe for judicial determination.' Id.

          (citation omitted).
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PAGE 566
The Village Board contends that there is no existing controversy

in this case, and Badke has no claim of right.





Specifically, the Village Board asserts that the controversy in

this case centered around the proposed Sileno project and whether

such development should continue.





Thus, it reasons, any claim of right Badke might have had was

satisfied when the Village Board held a second valid meeting

where it approved the permit for the development and allowed

construction to go forward.



According to the Village Board, the second meeting extinguished

the controversy and Badke's claim of right.



If the granting of the Sileno permit was the center of the

controversy in this case, then the Village Board's

arguments might have merit.



However, the existing controversy in this case involves the

process, not the substance, of the Village Board's actions.



The proceeding itself is at the heart of the dispute in this

case, as in any open meeting law case.





However, an alleged open meeting law violation usually does not

concern the merits or the ultimate resolution of the substantive

matter which was discussed at the meeting.





The open meeting law is concerned with the process

of public decisionmaking.





The law's purpose is to protect the public's right to be informed

to the fullest extent regarding the affairs of government.





If a simple revote on the substantive matter at issue at an

alleged invalid meeting extinguished a violation of the open

meeting law, the purpose behind the law would be thwarted.
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PAGE 567
The controversies in this case are whether the Village Board

violated the open meeting law by attending Plan Commission

meetings without giving notice of a Village Board meeting and

whether the Village Board violated the open meeting law by

excluding some residents from the April 17 meeting.





The sections of the open meeting law in question deal with

procedure Ä they do not concern the merits of the Sileno project.





We conclude that the revote at the second, valid meeting

did not extinguish the controversy in this case

or Badke's claim of right.



The Village Board also asserts that this case involves nothing

more than a mere difference of opinion, which is not

enough to make a justiciable controversy.





Specifically, the Village Board claims that Badke seeks "nothing

more . . . than a declaration that Respondent violated the Open

Meeting Law."  Village Board brief at 8.





This dispute is more than a mere difference of opinion, however,

in that Badke seeks to exercise his right under sec. 806.04(2),

Stats., to have Wisconsin's Open Meeting Law judicially

construed.[fn1]



Succeeding on review will do more for Badke than resolve a

difference of opinion.





Succeeding will, as Badke suggests, teach the Village Board what

to do under the law to avoid future violations.



For example, if the regular attendance of Plan Commission

meetings by a quorum of the Village Board does in fact require

notice, the Village Board will continue to violate the law if

this court does not issue a declaratory judgment mandating

otherwise.
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PAGE 568
Furthermore, Badke has a claim of right by virtue of the

authorization to seek a declaratory judgment in sec. 19.97(4),

Stats.[fn2]



Next, relying on the same reasoning as used to explain why this

case does not present a justiciable controversy, the Village

Board contends that, because the valid second meeting

extinguished the controversy, a judgment by this court will not

have any practical legal effect upon an existing controversy, and

the action is therefore moot.



A case is moot when a judgment can have no practical legal effect

upon the existing controversy.





Hahner v. Board of Ed. Wisconsin Rapids,

89 Wis.2d 180, 186, 278 N.W.2d 474 (Ct. App. 1979).



This case is not moot.



As explained earlier, the controversy in this case did not end

when the Village Board held its second meeting.



The controversy in this case is the legal status of the acts that

preceded the revote, and a declaratory judgment will have a legal

effect on that controversy: it will declare the legal status of

the Village Board's acts.



We conclude that the criteria for sustaining a declaratory action

have been met, and the controversy continues despite the second,

valid meeting of the Village Board.



Accordingly, this case is not moot.
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PAGE 569
We also note that the consequences of accepting the Village

Board's argument concerning mootness would be to render the open

meeting law meaningless in many future cases.



To dismiss enforcement proceedings on the grounds that a revote

makes this case moot would invite circumvention of the policy of

the open meeting law.



Rather than hold open meetings, a governmental body would know it

could hold secret meetings to discuss a proposal, wait until

someone filed a complaint, and then hold a valid

open meeting to vote on the proposal.



The complaint would then be dismissed as moot.



The public would never know of the information and discussion

that took place at the first secret meeting which may have formed

the basis for the governmental body's decision or course of

action taken at the second meeting.



This type of secrecy is exactly what the open meeting law is

intended to avoid.

                             II.



We turn now to the issue of the attendance of one-half or more of

the Village Board at the Plan Commission meetings where the

Sileno project was discussed and whether such attendance

violated the open meeting law.





The resolution of this issue requires application

of the open meeting law.





The application of a statute to a particular set of facts

is a question of law which this court reviews de novo.





See State ex rel. Newspapers v. Showers, 135 Wis.2d 77, 85,

                                         398 N.W.2d 154 (1987).



The specific question is whether, by regularly attending Plan

Commission meetings regarding the Sileno project, a quorum of the

Village Board held "meetings" as defined in the open meeting law

such that notice of Village Board meetings were required.
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PAGE 570
The fundamental purpose of the open meeting law is to

ensure the right of the public to be fully informed

regarding the conduct of governmental business.



The open meeting law demands that it be liberally

construed in favor of open government.



At the outset, we acknowledge the difficult task that public

officials, such as those in this case, often face in

determining the applicability of the law.



In Wisconsin, there are many parttime citizen boards that

work long hours for relatively little or no pay.



These boards' real compensation comes from the

satisfaction of public service.



It is very difficult for these boards to anticipate the

myriad of situations that may call into question

the parameters of the open meeting law.



We recognize that most public officials diligently try

to abide by the law, as is surely the case here.



The record and oral argument reveal that the Village Board

members are hardworking and concerned about being informed so

that they can vote intelligently and carry out their duties as

Village Board members.



Because of their conscientiousness, the Village Board members

regularly attended Plan Commission meetings for the purpose of

gathering information about matters over which they had

decisionmaking responsibility.



The four meetings at issue in this case involved the Sileno

project, a matter over which the Village Board had ultimate

decisionmaking authority.



The Village Board's members' conscientiousness is

to be commended, not criticized.



Clearly, their purpose in attending the meetings was not to

evade the law or to hide information from the public.



Nevertheless, the question remains as to whether their attendance

at these meetings constituted "meetings" within the meaning of

the open meeting law.



We must first determine whether these were "meetings"

within the meaning of the open meeting law.
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PAGE 571
Section 19.84(3), Stats., mandates that



     [p]ublic notice of every meeting of a governmental body

     shall be given . . ., and sec. 19.84(4) mandates that

     [s]eparate public notice shall be given for each meeting

     of a governmental body. . . .  The term "meeting" is

     defined under sec. 19.82(2) as follows:



          "Meeting" means the convening of members of a

           governmental body for the purpose of exercising

           the responsibilities, authority, power or duties

           delegated to or vested in the body.





     If one-half or more of the members of a governmental body

     are present, the meeting is rebuttably presumed to be for

     the purpose of exercising the responsibilities, authority,

     power or duties delegated to or vested in the body.





     The term does not include any social or chance gathering or

     conference which is not intended to avoid this subchapter.



Reading these sections together, Badke asserts that having a

quorum of Village Board trustees present at the Plan Commission

meetings created the rebuttable presumption that a governmental

body had met for the purposes enumerated in the statute, and such

gatherings were Village Board meetings which required

notification.



We agree.



In State ex rel. Newspapers v. Showers, 135 Wis.2d 77,

                                        398 N.W.2d 154 (1987),

this court thoroughly discussed the

meaning of the term "meeting" in Wisconsin's Open Meeting Law.



The issue presented in Showers was whether the open meeting law

applies to meetings of members of a governmental body at which

less than one-half of the members are in attendance.



In reaching our conclusion that in certain circumstances the law

applies to such gatherings, we rejected the notion, as we had in

State ex rel. Lynch v. Conta, 71 Wis.2d 662, 685-686,

                             239 N.W.2d 313 (1976),



that the phrase "convening of members" mandates that

there be some type of formal convening in

order for the law to be triggered.
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PAGE 572
Our opinion in Showers indicated that a "convening of members"

occurs when a group of members gather to engage in formal or

informal governmental business.



We held that informal governmental action includes such things as

discussion, decision, and information gathering.



Showers, 135 Wis.2d at 92.



We set forth a twofold analysis for determining whether a

gathering of members of a governmental body

constitutes a "meeting" within the open

meeting law and expressly stated that:



     First, there must be a purpose to engage in

     governmental business, be it discussion,

     decision or information gathering.





     Second, the number of members present must be

     sufficient to determine the parent body's course

     of action regarding the proposal discussed.



     Id. at 102. (Emphasis supplied.)



As is evident from our statements in Showers, interaction between

members of a governmental body is not necessary for a convening

of a meeting to have taken place nor is interaction necessary

for the body to have exercised its powers,

duties or responsibilities.



Listening and exposing itself to facts, arguments and statements

constitutes a crucial part of a governmental body's

decisionmaking.



We recognized the importance of exposure to information in

Lynch v. Conta, 71 Wis.2d at 686, and again in Showers,

135 Wis.2d at 90 (quoting Conta):



     Some occurrence at the session may forge

     an open or silent agreement.





     When the whole competent body convenes,

     this persuasive matter may or may not be

     presented in its entirety to the public.





     Yet that persuasive occurrence may compel

     an automatic decision through the votes of

     the conference participants.
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PAGE 573
     The likelihood that the public and those members of

     the governmental body excluded from the private

     conference may never be exposed to the actual

     controlling rationale of a government decision

     thus defines such private quorum conferences

     as normally an evasion of the law.





     The possibility that a decision could be influenced

     dictates that compliance with the law be met.



In this case, a quorum of trustees gathered information at the

Plan Commission meetings concerning the Sileno project, a project

over which they would later exercise final control.





They listened to the developer's presentation, heard the

developer discuss the proposal with the Plan Commission,

heard the Plan Commission's views on the proposal,

and heard the suggestions of the village planner.



The Village Board members present could have, and in all

likelihood did, reach some conclusions about the Sileno

project based upon information, data and material that

was presented at the Plan Commission meetings.



However, because no notice was given of their attendance,

the public may not have been aware of the perceived

importance of these meetings to the Village

Board and therefore failed to attend.



Thus, the public was not made aware that information

was being presented that could form the rationale

behind the Village Board's action.



The open meeting law is intended to allow the public access

to the fullest information possible concerning the workings

of government and the decisionmaking process.



The public can hardly have access to this information

if not made aware of its existence.



Thus, even if the Village Board members did not interact at the

Plan Commission meetings, their presence at the meetings allowed

them to gather information that influenced a decision about a

matter over which they had decisionmaking authority.
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PAGE 574
The public had a right to be made aware of the

existence of this information as well.



This is sufficient to trigger the open meeting law.



The Village Board next argues that the Village Board's members'

attendance comes within an exception to the law in that these

were chance gatherings and thus were not "meetings" under the

statute.



As support for this contention, the Village Board points to

affidavits submitted by the members of the Board who attended the

Plan Commission meetings which state that they attended the

meetings as interested citizens and observers.



Their affidavits also state that the Village Board members did

not discuss or collude with each other or prearrange going to the

Plan Commission meetings.



Furthermore, the affidavits assert that each trustee's attendance

at the meetings was spontaneous and independent of the fact that

other village trustees were at the meetings.



If the assertions submitted in the trustee's affidavits stood

alone, with no evidence to the contrary, this court may well have

held that the open meeting law was not implicated because the

Village Board's attendance were chance gatherings.



However, the Village Board's counsel's statements at oral

argument and other evidence indicate that these meetings

were not chance gatherings.



The evidence indicates that although, as the affidavits suggest,

the trustees may not have gotten together and talked about going

to these particular meetings, they did not need to confer with

each other because it is the regular practice of a quorum of the

Village Board to attend Plan Commission meetings.



As counsel for the Village Board stated at the beginning of his

argument before this court:
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PAGE 575
     Justice Bablitch you asked the question about other

     Plan Commission meetings over the years and so

     forth.



     It's been my pleasure to be associated with the

     Village of Greendale for 26 years, three years of

     which I sat on the Village Board.



     There has always been in our village an interest on the part

     of the board members to attend the board meetings [sic] to

     find out what is going on and it [sic] obvious the reason

     that you do it Ä because when you go to a Village Board

     meeting you have a long agenda, and if your going to be able

     to act on a subject you want to know what was the citizens'

     input Ä that is the way we schedule our meetings.



     We send things to committees.



     The Plan Commission is a statutory commission and zoning

     matters go to the Plan Commission.



     If you want to find out in detail what is going on so

     you can vote intelligently the board members over

     the years have gone to these.



     Your question has [sic] would there be a majority at Plan

     Commission meetings over the years of Village Board members.



     I would say, I would think so, I would think yes because our

     board members over the years have always had that

     concern that they wanted to go to the meetings.



In response to another question concerning whether attendance

is the practice of the Village Board, counsel said, "Yes,

traditionally over the years, not only for Plan Commission

meetings, but other commission meetings as well."



In addition to these statements by the Village Board's counsel,

other evidence suggests that attending Plan Commission meetings

is the practice of the Village Board.



For example, the clerk's office sent out notice to each board

member about each Plan Commission meeting, as well as

a copy of the agenda for each meeting.



At the bottom of each notice of a Plan Commission meeting there

is a notation that a copy was sent to the "Village trustees".



Furthermore, the trustees' presence at the Plan Commission

meetings was noted in the Plan Commission minutes

by their status as village trustees.
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PAGE 576
These statements at oral argument and other evidence cited

indicates that the Village Board members were present at

the Plan Commission meetings to carry out

their duties as Village Board members.



They were there to inform themselves so that they could vote

intelligently at Village Board meetings.



The statements at oral argument also indicate that the Village

Board's members' attendance was not haphazard, irregular or

spontaneous.



A majority of the Village Board members got together at Plan

Commission meetings with regularity Ä not haphazardly or

irregularly Ä not by chance.



As a result of this practice, Village Board members did not have

to call each other the night before the meeting to know that a

majority of the members would be there.



Because of the regularity of attendance, Village Board members

had every reason to anticipate that at least a quorum of the

Board would be present.



When one-half or more members of a governmental body attend a

meeting of another governmental body in order to gather

information about a subject over which they have decisionmaking

responsibility, the open meeting law applies unless the gathering

is social or chance.



The gatherings in this case were not social or chance gatherings.



There was an understanding among the members that one-half or

more of them would be in attendance.



Such an understanding, whether oral or tacit, is nevertheless an

agreement among the members to engage in their powers, duties, or

responsibilities, which in this case was to gather information

about the Sileno project for which they could ultimately cast the

deciding votes.



The public has a right to know what information the Village Board

members have before them when making their decisions.



Unless the public knew that the Village Board members would be

attending the Plan Commission meetings at which information

regarding the Sileno project was discussed, the interested

members of the public might well have foregone attendance

at the Plan Commission meeting, unaware that Village Board

members were being given information that would form

the basis for their decision.
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PAGE 577
Based on the above, we hold that when, as here, one-half

or more of the members of a governmental body attend a

meeting of another governmental body in order to gather

information about a subject over which they have

decisionmaking responsibility, such a gathering

is a "meeting" within the meaning of the

open meeting law, unless the gathering

is social or chance.



We also conclude that the meetings at issue in this

case were clearly not social or chance gatherings.



The Village Board's members' attendance as a group at the Sileno

project meetings was a regular occurrence, with expectations

among the members that at least one-half or more of their

membership would be in attendance.



These factors remove their attendance from the "social or chance"

gathering exception of the open meeting law.



These were not social or chance gatherings.



Their attendance as a group did not occur on a sporadic basis,

was not haphazard, irregular, nor spontaneous.



Notice of these meetings was required.



Questions were raised at oral argument which suggested that even

if the attendance of the Village Board at Plan Commission

meetings constituted meetings of the Village Board, separate

notification should not be required because notice was properly

given of the Plan Commission meeting.



Thus, they argue, the public was aware of the meeting and its

subject matter.
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PAGE 578
However, notice of only the Plan Commission meeting contravenes

the policies behind the open meeting law because it does not give

citizens the fullest public knowledge.



The notice of the Plan Commission meeting alone does not alert

the public of the importance of the meeting because it does not

notify the public that a quorum of the Village Board will also be

present to gather information upon which they will base their

final vote.



If the public knows that the Village Board's trustees are going

to the Plan Commission meeting they will likely realize that the

meeting is important and that the proposal discussed is probably

something over which the Village Board will ultimately exercise

final decisionmaking authority.



Notice of a Village Board meeting alerts the public that what

might otherwise be a relatively innocuous meeting of the Plan

Commission might be more than that.



Notice that a quorum of the Village Board will attend informs the

public that it can go to the meeting and obtain the same

information upon which the Village Board may be basing its

decision.



Accordingly, notice of the Plan Commission meeting alone is not

enough to satisfy the requirements of the open meeting law.



The Village Board raises the concern of the effect of our holding

on situations where a quorum or a negative quorum is present at a

meeting of a second governmental body merely because all of the

individual members of the quorum make up the membership of the

second governmental body.



That presents a different situation than in this case.





In this case, had the quorum of the Village Board attended the

Plan Commission meetings regularly because all of the individuals

who made up the quorum of the Village Board also constituted the

membership of the Plan Commission, separate notice would not have

been required.
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PAGE 579
In such a situation, notice of a Plan Commission meeting alone

gives the public the fullest knowledge possible because it gives

it notice of the individuals from the Village Board who will be

present, as they make up the membership of the Plan Commission.



However, anytime a regular attendance of a quorum is present such

that the gatherings are not social or chance and one or more of

the members of the quorum is not also a member of the second

governmental body, separate notice must be given.



The Village Board also contends that if this court does not

require interaction and discussion as prerequisites to a finding

that a gathering of members is a "meeting, " our holding will be

contrary to the court of appeals' decision in Paulton v.

Volkmann, 141 Wis.2d 370, 415 N.W.2d 528 (Ct. App. 1987).



We disagree.



In Paulton, a quorum of the Town of Phelp's school board

attended a meeting of the Town of Alvin's school board.



The court of appeals held that the gathering of the quorum was

not for the purpose of exercising the responsibilities,

authority, power or duties of the body because "[u]nlike Swanson

and Showers . . . [t]he board members did not engage in a

discussion concerning the merits of merging the Phelps and Alvin

school districts or gather information on this issue."  Paulton,

141 Wis.2d at 377-378 (emphasis added).



Thus, consistent with our holding in this case, the court of

appeals concluded in Paulton that there was not a violation of

the open meeting law because the quorum did not engage in

information gathering which had the possibility of influencing a

decision concerning a proposal over which the group had the

potential to determine the outcome.
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PAGE 580
                             III.



We next address the issue of whether the April 17 meeting

violated sec. 19.81(2), Stats., which provides: "all meetings . .

. shall be publicly held in places reasonably accessible to

members of the public and shall be open to all citizens at all

times unless otherwise expressly provided by law."  We find no

merit to this claim whatsoever.



Badke focuses exclusively on the language "open to all citizens

at all times" and contends that the language must be read

literally to mean that governmental bodies are required to meet

in facilities adequate to accommodate all members of the public

interested in the meeting or provide an audio system.





Thus, Badke contends that the Village Board violated the open

meeting law by failing to move its April 17, 1990 meeting to a

larger facility or provide amplification so that everyone present

could clearly hear the proceedings.





We disagree.



To literally interpret the words "open to all citizens at all

times" would lead to unreasonable and absurd results.



Badke's assertions overlook the language preceding "open to all

citizens at all times."  That language provides that governmental

bodies must meet in places "reasonably accessible" to the public.





The language "reasonably accessible" suggests that the absolute

accessibility suggested by Badke is not necessary under the

statute.



The word "reasonably" suggests a balancing by the court on a case

by case basis to review whether a meeting was reasonably

accessible to the public.



Read together, we conclude that the two phrases mean that a

governmental body must meet in a facility which gives reasonable

public access, not total access, and that it may not

systematically exclude or arbitrarily refuse admittance to any

individual.
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PAGE 581
See Gutierrez v. City of Albuquerque, 96 N.M. 398, 631 P.2d 304,

306 (1981) (interpreting statute which required that individuals

be allowed to "attend and listen" as mandating a reasonable

public access and that no one be systematically excluded).



Applying the requirements of the open meeting law as we have

construed it, we hold that the Village Board did not violate the

open meeting law with respect to public access at its April 17

meeting.



The meeting was held at the village hall which holds 55 people.



The village hall also has a foyer that can accommodate

approximately 20 people.



Although Badke points to a petition signed by 1,600 village

residents, there is no evidence in the record to indicate that

even a small fraction of that number (perhaps 5 percent)

attempted to attend the meeting.



At best, we determine that no more than 3 people were ultimately

denied admission.



The press attended the meeting.



Badke claims that many in attendance could not hear the

proceedings, but the record indicates that to the extent hearing

was difficult, it was intermittent and due to some disruptive

attendees.



To require that a Village Board meeting be held in a place that

allows attendance by everyone who wishes to attend would unduly

burden local government.



The question is one of reasonableness.



The circuit court found, and we agree, that the village hall

provided reasonable access to those members of the public wishing

to attend.



By the Court. Ä The decision of the court of appeals is reversed.



Rights Declared.



Justices DONALD W. STEINMETZ and JON P. WILCOX, took no part.



[fn1]     Section 806.04(2), Stats., provides in relevant part:

 

          POWER TO CONSTRUE, ETC.



          Any person interested under a deed, will written

          contract or other writings constituting a contract,

          or whose rights, status or other legal relations are

          affected by a statute, municipal ordinance, contract or

          franchise, may have determined any question of

          construction or validity arising under the instrument,

          statute, ordinance, contract or franchise and obtain

          a declaration of rights, status or other legal

          relations thereunder.



[fn2]     Section 19.97(4), Stats., provides:



          If the district attorney refuses or otherwise fails to

          commence an action to enforce this subchapter within 20

          days after receiving a verified complaint, the person

          making such complaint may bring an action under subs.

          (1) to (3) on his or her relation in name, and on

          behalf, of the state.





          In such actions, the court may award actual and

          necessary fees to the relator if he or she prevails,

          but any forfeiture recovered shall be paid the state.
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PAGE 582
SHIRLEY S. ABRAHAMSON, J. (dissenting).



I agree with much of the majority's opinion.[fn1]



I disagree, however, with the majority's conclusion that the

Board conducted a reasonably accessible meeting,

thereby complying with the open meeting law,

secs. 19.81-19.98, Stats. 1989-90.



I conclude that the Board violated the open meeting law.



The statutory requirement that meetings shall be held "in places

reasonably accessible to members of the public" and "shall be

open to all citizens at all times,"[fn2] adopts, as the majority

concludes, a "reasonableness" standard[fn3] Upon review of the

record, I find myself in disagreement with the majority's

application of the reasonableness standard to the facts of this

case.
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PAGE 583
Reading together the words "in places reasonably accessible to

members of the public" and "shall be open to all citizens at all

times," sec. 19.81(2), I conclude that the open meeting law

requires governmental units to hold their meetings in open, not

secret, sessions and that a meeting is not in open session unless

it is reasonably accessible to members of the public.



When the meeting place may not be large enough to accommodate all

the people who may wish to attend, the governmental unit must

balance the public's right of access against the burdens that

providing additional public access would impose on the

governmental unit.



The stated policy of the open meeting law is that "the public is

entitled to the fullest and most complete information regarding

the affairs of government as is compatible with the conduct of

governmental business."  Section 19.81(1), Stats. 1989-90.



Thus the governmental unit must strive for reasonable

accessibility.



Its selection of a meeting place must be reasonable under the

circumstances.



It must be flexible in setting the meeting place to accommodate

unusually large crowds. 67 Op. Atty Gen. 126 (1978).



When, as happened in this case, a meeting place is challenged

under the open meeting law as being too small to be reasonably

accessible to members of the public, the court's role is to

review the decision of the governmental unit to determine whether

its selection of the meeting place was reasonable.



In doing so, the court need not look for optimal outcomes, but

must seek to determine whether the local governmental unit

achieved a reasonable balance under the circumstances presented

at the time its decision was made.
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PAGE 584
In the present case, I believe that the Board's decision to hold

its meeting at its usual site was not reasonable under the open

meeting law.



The usual meeting room can accommodate 69 members of the public

through a combination of seating capacity for

non-Board-affiliated persons and standing room in the foyer.



However, from the facts available to the Board prior to the April

17 meeting it was only reasonable to conclude that more than 69

members of the public could be expected to attend.[fn4] First,

development projects are often controversial.



A previous development project had aroused controversy in the

village and a large number had attended the Board meeting at

which that project was considered.



Second, the public interest in this particular meeting was

evident.



Between 1,600 and 1,700 people had signed a petition opposing the

development project to be discussed at the meeting.



The petition did not lead the Board to anticipate that 1,600

people would appear at the meeting, but it should have alerted

the Board that interest in the meeting was high.



Third, a Planning Commission meeting on April 11, 1990, involving

the same development project, had drawn a crowd of between 75 and

150 people.
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PAGE 585
The large turnout should have signaled the Board that the public

was willing to attend meetings on this issue.



Finally, the Board had received two communications from a

concerned citizen in advance of the meeting date, asking that the

meeting place be changed to accommodate a large turnout.



I thus conclude that the Board, acting reasonably, should have

expected an attendance far in excess of the public attendance

capacity of its regular meeting room and its foyer.



Since the only reasonable conclusion the Board could have reached

from the available information was that more than 69 people would

probably attend, it should have considered its options for making

the meeting "reasonably accessible" to the number of people

expected.



In considering its options, the Board was required to attempt to

make the meeting "open" for two purposes Ä for citizens to hear

the proceedings and for citizens to participate in the

proceedings during the time allotted for public comments.



Several alternatives were available.



In one possible scenario, the Board could have kept its regular

meeting site and provided a sound system in the foyer or

elsewhere.



While standing for long periods is not conducive to citizen

participation (and seeing as well as hearing is important), a

sound system could have made the proceedings at least partially

accessible to more people.



As another alternative the Board could have made closed circuit

television available outside the meeting room.



Although the record shows that the Board did not have a sound

system, the record does not demonstrate that the cost or

commercial unavailability of a sound or TV system precluded

either of these options.



Still another alternative would have been to schedule the

meeting at a larger facility, if one was available in

a reasonable location and at a reasonable cost.
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PAGE 586
The community's schools apparently had suitable rooms, since a

school had been used for a prior Board meeting.



The Board, however, did not explore any alternatives to its

regular meeting site.



 Under the circumstances presented, I would conclude that the

Board violated the open meeting law when it failed, in advance of

the meeting, to explore the use of a sound system, closed circuit

TV, or an alternative site to provide additional access to what

could reasonably have been expected to be an overflow crowd.[fn5]



The majority concludes that "at most three persons were

ultimately denied entrance because of the crowd" and that the

Board's holding the meeting at the usual meeting place "was

reasonable."  Majority op. at 561.





To borrow a phrase from other areas of the law, this reasoning by

hindsight employs a "harmless error" test, not a reasonableness

test.





In this case reasonableness must be judged from the perspective

of the Board prior to the meeting:  What should the Board have

done to assure that the meeting would be reasonably accessible to

the public, considering the information the Board had or



should have had before the meeting about the anticipated size of

the crowd and the available alternatives.
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PAGE 587
Even if I were to use a harmless error test to determine whether

the Board had violated the open meeting statute, I would conclude

that the error was not harmless in this case.



The circuit court decided the case on summary judgment and made

no findings of fact.



The record contains conflicting statements about how many people

tried to attend and how many people were turned away.



As I read the record, it is likely that more than three people

were denied admission.[fn6] We also cannot know how many citizens

were deterred from attempting to enter or to attend the meeting

because they did not want to stand or to be in a large crowd

confined to a small area.



On this record, the error was not harmless.



I would conclude that under the circumstances presented in this

case the Board's failure to have the meeting at a place that

would accommodate more people was a violation of the open meeting

law.



For the reasons set forth, I dissent.



[fn1]     I agree with the majority that the court should decide

          the issues raised in this case.



          While the controversy about the validity of the Board's

          approval of the development project may have been

          eliminated by the Board's holding a second meeting in

          compliance with the open meeting law, the legality of

          the initial meeting remains in controversy.



          Furthermore, the plaintiffs' claim for attorney fees

          depends on the court's deciding whether the open

          meeting law was violated in this case.



          Section 19.97(4), Stats. 1991-92.





          Finally, questions about open meetings recur and might

          evade review if this court were to accept the Board's

          mootness argument in this case.



          The open meeting issues are of sufficient public

          interest to justify the court's addressing them even if

          we were to determine that the case was moot.





          State ex rel. LaCrosse Tribune v. Circuit Court,

          115 Wis.2d 220, 229-30, 340 N.W.2d 460 (1987).



          I also agree with the majority's conclusion that the

          open meetings law required that notice be given when a

          majority of the Board members attended a meeting of the

          Plan Commission.



[fn2]     Sections 19.81(2), 19.82(3), 19.83, Stats. 1989-90.



[fn3]     See 67 OAG 125 (1978).



          I agree with the attorney general that there is no

          requirement that the place which has the greatest

          accessibility be used.





          The test is whether the meeting place is reasonably

          accessible; that is a factual question to be determined

          in each case.





[fn4]     The majority opinion assumes that admission to the

          foyer (standing room for 25 people) constituted

          adequate access to the meeting.



          I would not so conclude.





          As the majority concedes, there is evidence in the

          record that some citizens couldn't hear the

          proceedings from the foyer.



          (Majority op. at 563.)



          Jeanne Sullivan testified about her experience in the

          foyer, ". . . there was enough room so that as long as

          we couldn't see or hear mostly anything, we sat on the

          floor with our legs out, and we thought we might as

          well wait until the meeting was over to find out really

          had happened from other people." (R: 26-23) There is no

          evidence that any provision was made to enable the

          people in the foyer to participate in the public

          question and comment segment of the meeting.



[fn5]     Since the Board was alerted in advance of the meeting

          to the probability that a larger facility would be

          needed and should have made the necessary arrangements

          before the date of the meeting, I do not have to

          discuss the question of whether the Board should have

          rescheduled the meeting when an overflow crowd appeared

          at the meeting.



          It is not clear whether, on the evening of the meeting,

          the Board could have changed its location.



          Greendale Village Manager Donald Fieldstad, Jr. stated

          in an affidavit that arrangements to move the meeting

          to alternative rooms at Village schools "must be made

          when representatives of the School District are working

          and could not have been made just prior to the Village

          Board meeting on April, 17, 1990."



[fn6]     Bernice Badke testified that she and her husband sat in

          their car and watched other people being turned away.



          Police officer David Sjoberg estimated that he held six

          people outside and kept them from entering the

          building, although three of them were

          apparently able to enter later.
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PAGE 588
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CASE LAW CITING BADKE:
State ex rel. Hodge v. Turtle Lake,

180 Wis.2d 62 (1993)

508 N.W.2d 301
Stae ex rel. Badke v. Greendale Villiage Board,

173 Wis.2d 553

494 N.W.2d 408
See also Wisconsin Statutes
19.81 Declaration of Policy
19.83 Meetings of Governmental Bodies