State ex rel. HODGE v. Turtle Lake,
180 Wis.2d 62
(1993)
508 N.W.2d 301
| TOP 67
70 73 76
79
68 71 74 77 80 69 72 75 78 81 RELATED LAW |
Plaintiff-Appellant-Petitioner,
v.
TOWN OF TURTLE LAKE,
Richard Fick,
James Kasper,
Ray Ruff,
Defendants-Respondents.
=======================================================
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).)
| TOP | PREVIOUS PAGE | PAGE 67 | NEXT PAGE |
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.
| TOP | PREVIOUS PAGE | PAGE 68 | NEXT PAGE |
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.
| TOP | PREVIOUS PAGE | PAGE 69 | NEXT PAGE |
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).
| TOP | PREVIOUS PAGE | PAGE 70 | NEXT PAGE |
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.
| TOP | PREVIOUS PAGE | PAGE 71 | NEXT PAGE |
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."
| TOP | PREVIOUS PAGE | PAGE 72 | NEXT PAGE |
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).
| TOP | PREVIOUS PAGE | PAGE 73 | NEXT PAGE |
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.
| TOP | PREVIOUS PAGE | PAGE 74 | NEXT PAGE |
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.
| TOP | PREVIOUS PAGE | PAGE 75 | NEXT PAGE |
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.
| TOP | PREVIOUS PAGE | PAGE 76 | NEXT PAGE |
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.
| TOP | PREVIOUS PAGE | PAGE 77 | NEXT PAGE |
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).
| TOP | PREVIOUS PAGE | PAGE 78 | NEXT PAGE |
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.
| TOP | PREVIOUS PAGE | PAGE 79 | NEXT PAGE |
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.
| TOP | PREVIOUS PAGE | PAGE 80 | NEXT PAGE |
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
| TOP | PREVIOUS PAGE | PAGE 81 | NEXT PAGE |
=======================================================
=======================================================
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
===========
BACK TO TOP