HODGE I

State ex rel. HODGE v. Turtle Lake,
180 Wis.2d 62 (1993)
508 N.W.2d 301

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STATE of Wisconsin Ex Rel. Warren E. HODGE,

Plaintiff-Appellant-Petitioner,

v.

TOWN OF TURTLE LAKE,
Richard Fick,
James Kasper,
Ray Ruff,

Defendants-Respondents.
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Supreme Court No. 92-1807.
Oral argument September 8, 1993.
Decided December 7, 1993.

(Reversing and cause remanded with directions

173 Wis.2d 909 (table),
499 N.W.2d 301 (Ct. App. 1992).)
 
 
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REVIEW of a decision of the Court of Appeals affirming
a judgment of the Circuit Court for Barron County,
Edward R. Brunner, Judge. Judgment reversed,
and cause remanded with directions.

For the plaintiff-appellant-petitioner there were
briefs by Daniel W. Hildebrand, Don M. Millis and
Ross & Stevens, S.C., Madison and oral argument by
Daniel W. Hildebrand.

For the defendants-respondents there was a brief by
Gwen Kuchevar, Catherine R. Quiggle and Rodli,
Beskar & Boles, S.C., River Falls and oral
argument by Gwen Kuchevar.

Amicus curiae brief was filed by Linda M. Clifford
and LaFollette & Sinykin, Madison for Wisconsin
Newspaper Association.

Amicus curiae brief was filed by Thomas W. Harnisch,
legal counsel, Madison for The Wisconsin Towns
Association.

WILLIAM A. BABLITCH, J.

The Town of Turtle Lake Supervisory Board (Board)
deliberated in closed session on Warren E. Hodge's
(Hodge) permit application to store junked automobiles.

The court of appeals held that the Board's actions were
authorized under the exemption to the Open Meetings Law
which allows closed deliberations concerning a case
which is the subject of any judicial or quasi-judicial
trial or hearing.

Hodge seeks review, arguing that
the exemption does not apply.

We agree.

We conclude that the hearing, including the closed
deliberations, was not a "case" within the meaning of
the exemption found in the Open Meetings Law.

Accordingly, we void the decision by the Board.

We remand to the circuit court for a determination on
attorney's fees and with directions to remand to the
Board for reconsideration of the permit application in
a manner consistent with the Open Meetings Law.

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The relevant facts are undisputed.

On November 19, 1990, Hodge petitioned the Town of
Turtle Lake for a permit to store junked automobiles
within 500 feet of the centerline of Fourth Street and
Ninth Avenue in the Town of Turtle Lake, Barron County.

The Board initially denied Hodge's petition for the
permit and upon review requested by Hodge,
voted to uphold the denial.

Hodge then filed suit and the Barron County Circuit
Court entered judgment reversing and setting aside
the denial of the permit and ordering the Board to
set forth the findings of fact and reasons for
granting or denying Hodge's permit.

The Board scheduled a special meeting
to reconsider the permit request.

A notice of the meeting was published in the local
newspaper and posted in three places in town.

At the Board meeting on August 19, 1991, Hodge
spoke first in favor of the permit, and
then several citizens spoke against it.

The record lacks any indication that the hearing
possessed the characteristics of a traditional
judicial proceeding.

It contains no evidence which would suggest that
counsel for Hodge or the other participants was
present, that Hodge or the other participants
were under oath, or that the rules of evidence
applied to any of the testimony presented.

After listening to the witnesses, the Board unanimously
voted to go into closed session to consider the matter
noting that it was relying on Section 19.85(1)(a),
Stats.[fn1] After the closed deliberations, the Board
returned and unanimously voted to deny the permit.

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Subsequently, Hodge submitted a verified complaint to
the Barron County district attorney claiming that the
Board's closed deliberations violated the Open Meetings
Law and asking the district attorney to prosecute.

The district attorney refused to do so.

Hodge filed suit claiming that the Board's actions
violated the Wisconsin Open Meetings Law contained
in Sections 19.83[fn2] and 19.85, Stats.

The circuit court granted summary judgment
to the Town of Turtle Lake and the Board.

In an unpublished opinion, the court of appeals
affirmed, concluding that the exemption contained in
Section 19.85(1)(a), Stats., authorized the closed
deliberations because the power of a municipal
corporation to issue permits is a quasi-judicial
function, citing

Allstate Ins. v. Metropolitan Sewerage Comm.,
80 Wis.2d 10, 17, 258 N.W.2d 148 (1977).

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We granted Hodge's petition for review.

We first consider the issue of whether the closed
deliberations of the Board were authorized
under Section 19.85(1)(a), Stats.

We must interpret Section 19.85(1)(a) to determine
if the particular facts constitute a violation
of the Open Meetings Law.

A question of statutory construction
is a question of law.

Sacotte v. Ideal-Werk Krug & Priester,
121 Wis.2d 401, 405,
359 N.W.2d 393 (1984).

Questions of law are reviewable
ab initio by this court.

Revenue Dept. v. Milwaukee Brewers,
111 Wis.2d 571, 577,
331 N.W.2d 383 (1983).

Thus, we owe no deference to the lower
court's resolution of the issue.

State ex rel. Newspapers v. Showers,
135 Wis.2d 77, 85,
398 N.W.2d 154 (1987).

Finally, Section 19.81(4) requires us to liberally
construe the Open Meetings Law to achieve the purpose
of providing the public with the fullest and most
complete information possible regarding the
affairs of government.

Section 19.85(1)(a), Stats., the exemption upon which
the Board relies, states that a closed session may be
held for the purpose of, "[d]eliberating concerning a
case which was the subject of any judicial or
quasi-judicial trial or hearing before that
governmental body."

The Board contends that an appropriate interpretation
of Section 19.85(1)(a), Stats., is one which
recognizes that the granting of a permit
is a quasi-judicial hearing.

In support of this argument, the Board cites Allstate,
80 Wis.2d at 17, and Corrao v. Mortier, 7 Wis.2d 494,
498, 96 N.W.2d 851 (1959), in which this court
determined that the issuance of a permit is a
quasi-judicial function for purposes of Section
895.43(3), the former governmental immunity statute.

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Hodge argues that these cases are inapplicable to this
analysis of the Open Meetings Law.

The concept of a "case which was the subject of any
judicial or quasi-judicial trial or hearing", is unique
to the Open Meetings Law and, Hodge says, must be
analyzed without deference to the tort
immunity cases cited by the Board.

We agree.

We begin our analysis with a basic premise
set forth in Section 19.83, Stats.:

"[e]very meeting of a governmental body . . .
shall be held in open session" and "all
action . . shall be . . deliberated upon
. . . in open session. . . ."

The application and granting of a permit by
a town board falls within the purview of
this mandate in every respect.

The only exception to this mandate is if the meeting
qualifies under an exemption to the Open Meetings Law
contained in Section 19.85.

We thus examine the exemption contained in Section
19.85(1)(a) keeping in mind that the exemption should
be construed strictly in light of the legislative
mandate of Section 19.81(4) to construe the Open
Meetings Law liberally in order to achieve the
purpose of providing the public with the fullest
and most complete information possible regarding
the affairs of government.

The language "concerning a case" in Section
19.85(1)(a), Stats., was part of an addition
to Section 19.85(1)(a) in 1977.

The 1975 version allowed closed deliberations
after any quasi-judicial trial or hearing.
 

The statute was amended in 1977 to allow closed
deliberations "concerning a case which was the
subject of any judicial trial or hearing
before that governmental body."

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In attempting to discern the meaning of the
exemption, we, like the court of appeals, find
the legislative history to be unhelpful.

We conclude, however, that the language "concerning a
case" was added to clarify the legislature's
intention to limit the exemption.

Any other construction of the language would render
the word "case" superfluous, a result which we
are to avoid in construing a statute.

Kelley Co., Inc. v. Marquardt, 172 Wis.2d 234, 250,
493 N.W.2d 68 (1992).

Had the legislature intended to allow any
quasi-judicial function to be excepted from the
Open Meetings Law it need not have added the language
"concerning a case" in the 1977 revision since the
draft in effect before 1977 which allowed closed
deliberations after any quasi-judicial trial or
hearing clearly accomplished that purpose.

The word "case" seems to connote, at the very least,
an adversarial setting with opposing parties.

"Case" is defined in Black's Law Dictionary as:

A general term for an action, cause, suit,
or controversy, at law or in equity;

a question contested before a
court ofjustice;

an aggregate of facts which furnishes
occasion for the exercise of the
jurisdiction of a court of justice,

A judicial proceeding for the
determination of a controversy between
parties wherein rights are enforced or
protected, or wrongs are prevented or
redressed; any proceeding judicial
in its nature.

Black's Law Dictionary 215 (6th ed. 1990).

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It has also been addressed by this court in
Lamasco Realty Co. v. Milwaukee,
242 Wis. 357, 381,
8 N.W.2d 372 (1943):

The word "case" is not one of definite legal
content. It relates to matters of fact or
conditions involved in a controversy. . . ."

Additionally, Wisconsin's Administrative Procedure
and Review Act defines "contested case" in
Section 227.01(3), Stats., as:

[A]n agency proceeding in which the assertion by
one party of any substantial interest is denied
or controverted by another party and in which,
after a hearing required by law, a substantial
interest of a party is determined or adversely
affected by a decision or order.

Finally, the term "case" has been defined
in a similar manner by other courts.

For example, the federal district court
in the District of Columbia stated,

"case, in legal terminology is a proceeding by
which one party seeks to obtain relief against
another named in the suit."

Gomez v. United Office And Professional Workers,
73 F. Supp. 679, 682 (D.D.C. 1947).

See also Lum v. Sun, 769 P.2d 1091, 1097 (Haw.1989)

In a legal sense, "case" is generally understood
as meaning a judicial proceeding for the
determination of a controversy between
parties where rights are enforced or
wrongs are prevented or redressed.;

Leitner v. Lonabaugh,
402 P.2d 713, 718 (Wyo. 1965)(defining "case" as an
action commenced as a judicial proceeding where adverse
parties have tendered issues for adjudication);

Bell v. Mar-Mil Steel and Supply Co.,
309 So.2d 471, 474 (Ala. 1975) (defining "case" as a
"contested question before a court of justice").

An examination of these cases reveals that the
definition of the word "case" contemplates a
controversy between or among parties who are
adverse to one another and a type of proceeding
designed to redress wrongs or enforce rights.
 

It does not connote the idea of mere]
application and granting of a permit.

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The Board meeting did not possess characteristics
common to adversarial proceedings.

Hodge was the only party here seeking a permit.

The Board, as the governmental decision-making body
like such bodies as the Wisconsin Employment Relations
Commission, was not "a party in interest in the
adversarial sense".

See Guthrie v. WERC,
111 Wis.2d 447, 460, 331 N.W.2d 331 (1983).

Furthermore, although the Board heard testimony
from interested neighbors, the neighbors were
not and could not have been made parties,
they were not under oath and the rules of
evidence did not apply to their testimony.

The Board meeting resembled a judicial proceeding
only in that the Board was making a decision
which would impact a particular individual.

This alone, however, is insufficient to conclude
that the exercise was a "case" within the
exemption to the Open Meetings Law
contained in Section 19.85(1)(a), Stats.

We conclude then, that the hearing of the Board,
including the deliberations, was not a "case" within
the meaning of the exemption to the Open Meetings Law
contained in Section 19.85(1)(a), Stats.

Therefore, the Board conducted the closed deliberations
in violation of the Open Meetings Law.

Hodge also contends that the Board violated several
technical requirements necessary to hold closed
deliberations under the Open Meetings Law.

Because we find that the closed deliberations
were unauthorized under the law, we do
not reach these other issues.

We next determine the appropriate remedy. Section
19.97(4), Stats., provides that Hodge may bring
an action under Sections 19.97(1)-(3) if
the district attorney refuses to commence
an action under the Open Meetings Law.

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Since the district attorney refused to prosecute the
Board, Hodge is empowered to bring an action and is
entitled to have the decision voided if we find
that the public interest in enforcing the Open
Meetings Law outweighs the public interest in
sustaining the Board's actions.

Section 19.97(3).

The purpose of the Open Meetings Law is to protect the
public's right to be informed to the fullest extent
regarding the affairs of government.

St. ex rel. Badke v. Greendale Village Bd.,
173 Wis.2d 553, 566, 494 N.W.2d 408 (1993).

The public's interest in enforcing the Open Meetings
Law weighs heavily in matters such as this where
governmental bodies discuss topics of public
controversy and concern behind closed doors.

The public has little discernable interest in allowing
the Board in this case to deliberate in closed session.

The Board contends that the public's interest
lies in promoting full and frank discussion
on Hodge's permit application.

The Board emphasizes the importance of the closed
deliberations in this instance by reminding us
that this was the first time in seven years
that it held closed deliberations.

All that we can discern from this statement, if true,
is that this is the first difficult, controversial
issue the Board has had in the last seven years.

An Open Meetings Law is not necessary to ensure
openness in easy, noncontroversial matters where
no one cares whether the meeting is open or not.

Like the First Amendment which exists to protect
unfavored speech, the Open Meetings Law exists to
ensure open government in controversial matters.

The Open Meetings Law functions to ensure that these
difficult matters are decided without bias or regard
for issues such as race, gender, or economic status,
and with regard for the interests of the community.

This requires, with very few exceptions,
that governmental meetings be held in
full view of the community.

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We conclude therefore, that the public interest in
enforcing the Open Meetings Law outweighs the public
interest in sustaining the Board's action.

We void the action of the Board, pursuant to
Section 19.97(4), Stats., and remand to the
circuit court with directions to remand to
the Board for reconsideration of the permit
application in a manner consistent
with the Open Meetings Law.
 

We next consider Hodge's request for costs
and reasonable attorney's fees.

Section 19.97(4), Stats., gives the circuit
court discretion to award

"actual and necessary costs of prosecution,
including reasonable attorney fees to the
relator if he or she prevails. ." Because
the circuit court disposed of the matter
on a grant of summary judgment to the
Board, the issue of attorney's fees
was never addressed.

Since we conclude, however, that the Board violated
the Open Meetings Law, Hodge is properly considered
a prevailing relator under sec.

19.97(4), and may be eligible for attorney's fees.

We, therefore, remand to the circuit court so that
it may determine whether an award of fees from
the Town of Turtle Lake is appropriate.

In remanding, however, we are cognizant that there
are no cases under the Open Meetings Law to guide
such a determination by the circuit court.

We, therefore, must fashion the proper standard
upon which to award attorney's fees under
the Open Meetings Law.

In doing so, we examine other actions in which
fees have been awarded to the prevailing party
as a guide to our determination.

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In Watkins v. LIRC,
117 Wis.2d 753,
345 N.W.2d 482 (1984),

reviewing an action for attorney's fees under the
Wisconsin Fair Employment Act (WFEA), we held that
attorney's fees should be awarded even though not
expressly provided for under the WFEA.

In awarding attorney's fees, we emphasized the
requirement that the WFEA be liberally construed to
accomplish the purposes of the Act:

to make complainants "whole",

to put the complainant in an
economic position which allows
him or her to enforce his or
her rights and the rights of
the public under the Act,

and to discourage discriminatory
practices in employment by encouraging
victims to act as "private attorney generals"
in enforcing the provisions of the Act.

Finally, we stressed that an award was necessary to
give meaning to the rights created under the WFEA.

We stated,

"A right without the means to enforce
it is meaningless." Id. at 765.

In Richland School Dist. v. DILHR,
174 Wis.2d 878, 908,
498 N.W.2d 826 (1993),
we held that the analysis in Watkins served
as a sufficient basis upon which to award
attorney's fees under a statutory provision
of the Family Medical Leave Act (FMLA)
which explicitly provides for fees.

See also Richland County v. DH&SS,
146 Wis.2d 271,
430 N.W.2d 374 (Ct. App. 1988)
(awarding appeal costs under the frivolous
claims statute because an award advanced
the purposes of the statute).

Based on similar policies, the United States Supreme
Court has held that under Title II of the Civil Rights
Act, which provides for an award of attorney's fees
to a prevailing party, attorney's fees should be
awarded unless special circumstances exist
which would render an award unjust.

Newman v. Piggie Park Enterprises,
390 U.S. 400, 402-03 (1968).

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In awarding fees, the Court in Newman emphasized
that the litigant could not recover damages
under the Civil Rights Act.

Thus, in attempting to obtain an injunction,
the litigant would be acting as a private attorney
general "vindicating a policy that Congress considered
of the highest priority." Id. at 402.

This presumption in favor of awarding fees has
also been applied to other provisions of
the Civil Rights Act.

See, e.g.,
Lea v. Cone Mills Corporation,
438 F.2d 86, 88 (4th Cir. 1971)
(applying the presumption to Title VII);

Hairston v. R&R Apartments.,
510 F.2d 1090, 1092 (7th Cir. 1975)
(applying the presumption to the fair housing
provisions of the Civil Rights Act).

Additionally, the special circumstances
exception has been strictly construed.

See, e.g.,
Aware Woman Clinic v. City of Cocoa Beach,
629 F.2d 1146, 1150 (5th Cir. 1980)
(holding that special circumstances
do not exist simply because the
burden of attorney's fees will
fall on taxpayers); Ark.

Community Organizations v. Ark. State Bd.,
468 F. Supp. 1254, 1257 (E.D. Ark. 1979)
(holding that good faith is not a bar
to an award of attorney's fees).

Like prevailing parties under the WFEA, FMLA and the
Civil Rights Act, the prevailing relator under the
Open Meetings Law serves as a private attorney general
by vindicating his or her own rights and the rights
of the public to open government.

In light of this, and the legislative mandate to
construe the Open Meetings Law liberally, we conclude
that a prevailing relator under the Open Meetings Law
should be awarded attorney's fees if an award would
advance the purpose of the Open Meetings law:
to ensure that the public has the fullest and
most complete information possible regarding
the affairs of government.

Section 19.81, Stats.

If this condition is met, fees are awarded unless
there is a showing of special circumstances
which would render an award unjust.

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In first determining, then, whether the purpose
of the Open Meetings Law is advanced by an award
of fees, the circuit court should consider such
things as whether an award of fees to Hodge would
make him "whole", thus providing him and others in
similar positions with economic incentive to privately
enforce the Act under Section 19.97(4), Stats.

Additionally, the court should determine whether
an award would deter future Open Meetings Law
violations and encourage governmental bodies
to provide more openness in government.

We do not address here the special circumstances
which might render an award unjust.

We caution, however, that the mere presence
of good faith on the part of the Board
cannot alone be such a circumstance.

We assume that most disagreements over the
applicability of the Open Meetings Law reflect
good faith disagreement on both sides.

Denying attorney's fees to a prevailing party simply
because of good faith, without other special
circumstances, would remove much incentive
to privately enforce the law and, perhaps,
in many cases discourage it.

Based on these considerations, we remand to the circuit
court to determine, consistent with this opinion,
whether Hodge is entitled to an award of
attorney's fees from the Town of Turtle Lake.

Additionally, we direct the circuit court to remand to
the Board for reconsideration of the permit application
in a manner consistent with the Open Meetings Law.

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Hodge also requests forfeitures against each defendant.

We deny his request.

Section 19.96, Stats., allows forfeitures if a member
of a government body "knowingly" attends a meeting
in violation of the Open Meetings Law.

In State v. Swanson, 92 Wis.2d 310, 319, 284 N.W. 655
(1979), we defined "knowingly" as including the state
of mind of one who acts with an awareness of the high
probability of the existence of the fact in question
or one who does not possess positive knowledge
only because he consciously avoids it.

The members of the Board clearly attempted to abide by
the Open Meetings Law by contacting two attorneys
before deliberating in closed session.

Moreover, they believed that they were authorized to
deliberate in closed session and thus, did not
"knowingly" violate the Open Meetings Law.

Therefore, their actions do not warrant the penalty
under Section 19.96, Stats.

By the Court. Ä Judgment reversed, and
cause remanded with directions.

[fn1] The Board likely intended to cite
        Section 19.85(1)(a), Stats.

Sections 19.85 and 19.85(1)(a), state:

Exemptions.

19.85(1) Any meeting of a governmental body,
upon motion duly made and carried,
may be convened in closed session
under one or more of the exemptions
provided in this section.

The motion shall be carried by a
majority vote in such manner that
the vote of each member is
ascertained and recorded
in the minutes.

No motion to convene in closed session
may be adopted unless the chief
presiding officer announces to those
present at the meeting at which such
motion is made, the nature of the
business to be considered at such
closed session, and the specific
exemption or exemptions under
this subsection by which such
closed session is claimed to
be authorized.

Such announcement shall become part
of the record of the meeting.

No business may be taken up at any
closed session except that which
relates to matters contained in
the chief presiding officer's
announcement of the closed session.

A closed session may be held for
any of the following purposes:

19.85(1)(a) Deliberating concerning a case
which was the subject of any
judicial or quasi-judicial
trial or hearing before
that governmental body.

[fn2] Section 19.83, Stats., states:

Meetings of governmental bodies.

Every meeting of a governmental body
shall be preceded by public notice as
provided in Section 19.84, and shall
be held in open session.

At any meeting of a governmental body,
all discussion shall be held and all
action of any kind, formal or informal,
shall be initiated, deliberated upon and
acted upon only in open session except
as provided in Secton 19.85

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RELATED CASE LAW:

Wisconsin Case Law: HODGE AND "TURTLE LAKE"
 

State ex rel. Auchinleck v. Town of LaGrange,
200 Wis.2d 585 (1996)
547 N.W.2d 587

Metropolitan Milwaukee Fair v. Hartford Times,
(Ct.App. 1996) - Unpublished Decision

Leverence v. Pfs Corp.,
193 Wis.2d 317 (1995)
532 N.W.2d 735

Seaquist v. Physicians Ins.,
192 Wis.2d 530 (Ct.App. 1995)
531 N.W.2d 437

In Interest of Christopher C.,
191 Wis.2d 680 (Ct.App. 1995)
530 N.W.2d 34

HODGE II
State ex rel. Hodge v. Town of Turtle Lake,
190 Wis.2d 181 (Ct.App. 1994)
526 N.W.2d 784

In Matter of Mental Condition of Virgil D.,
189 Wis.2d 1 (1994)
524 N.W.2d 894

Clark v. Milwaukee County,
188 Wis.2d 171 (1994)
524 N.W.2d 382

HODGE I
State ex rel. Hodge v. Turtle lake,
180 Wis.2d 62 (1993)
508 N.W.2d 301

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