STATE EX REL. LYNCH v. CONTA,     662 668 674 680 686 692 698 704

                                  663 669 675 681 687 693 699 705

 71 Wis.2d 662 (1976)             664 670 676 682 688 694 700 706

                                  665 671 677 683 689 695 701 707

239 N.W.2d 313                    666 672 678 684 690 696 702 708

                                  667 673 679 685 691 697 703 709


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State ex rel. LYNCH,

District Attorney of Dane County,



CONTA, and others,

Respondents: DORMAN and others,

Necessary Parties, but not denominated Respondents.


Supreme Court No. 75-459. Argued 1/7/76. Decided 3/2/76.

                                                         Page 663


ORIGINAL ACTION for declaratory judgment. Rights declared.

This is an original action for declaratory judgment, seeking a

declaration that certain meetings conducted by the respondents

violated the open meeting law, section 66.77, Stats.

The petition for leave to commence an original action was filed

on October 3, 1975. On November 21, 1975, this court accepted

jurisdiction and ordered that the petition stand for a complaint.

The respondents requested that their original reply to

the petition be accepted as a responsive pleading.

A stipulation of facts was filed on November 17, 1975.

The joint committee on finance of the Wisconsin legislature,

created by section 13.09, Stats., consists of fourteen members.

Seven of them, all Democratic party members and representatives

in the assembly, are the named respondents in this action.

Four committee members, state senators and also Democrats, have

been denominated necessary parties to this proceeding.

The committee is completed by one senator and two

representatives, all of whom are members of the Republican party,

the minority party in both the legislative houses and their

standing committees.


                                                         Page 664


It is agreed that the principal responsibility of the committee

was to recommend to the legislature a budget bill, governing the

appropriations of funds to state departments and outlining the

revenue sources for such funds.

At all times material to this action the committee was concerned

with the 1975 budget, contained in Assembly Bill 222, introduced

on January 23, 1975.

During the consideration of this bill, nineteen public hearings

were held for the purpose of receiving public testimony on

funding and allocation.

Members of state agencies, interested groups and the general

public all informed the committee of their views.

On fourteen occasions, the committee met in executive session to

consider the proposed budget and possible amendments.

Notices of these sessions were furnished to all committee

members, to agencies whose budgets were to be considered, to the

legislative audit bureau, to the department of administration and

to the legislative fiscal bureau.

This latter agency, authorized by Section 13.05, Stats., is

specifically designated to provide expertise in financial

planning and thus assist the committee.

Members of the press corps were also informed and notice was

given to the general public by postings on the

legislature's bulletin boards.

Discussion of the budget proposals ensued at these meetings and

decisions were made a matter of public record via roll call vote.

On May 6, 1975, a report of the committee

was submitted to the assembly.

By an eight-six vote, the committee recommended passage

of an amended version of the original bill.

Voting in favor were the seven respondents and

one Republican representative.

The recommended version was changed in both legislative houses.

The assembly accepted six amendments.


                                                         Page 665


The Senate undertook another version of the original

bill, which in turn underwent a major amendment.

When the assembly refused to accept this proposal, a joint

committee of conference endeavored to write a compromise bill.

This form, ultimately passed by both houses, had twenty-one

additional significant changes from the version

recommended by the committee.

Numerous individual items in this final form were vetoed

by the governor, only a few of which were returned

by the requisite vote of each house.

State ex rel. Sundby v. Adamany, ante, p. 118, 237 N.W.2d 910.

While the bill was still before the committee, the respondents

and the four Democratic senators held a private

meeting on March 11, 1975.

No notice was given to the minority party committee members, nor

was any compliance had with the notice requirements of the open

meeting law, section 66.77(1)(e), Stats. That statute requires

that meetings of governmental bodies be held in a place

reasonably accessible to members of the public

and which is open to all citizens.

Public notice is also required of the time, place and subject

matter of the meeting, either pursuant to applicable statutory

requirements or through general notices to the public and to

either officially designated newspapers or members of the news


This meeting was held in a state office building and members

of the legislative fiscal bureau were in attendance.

They reported on the finances of certain large state agencies,

identifying key areas in the budget allocations of each.

It is the recollection of some committee members in attendance

that the meeting involved only questioning of

the reporting bureau members.

Other legislators recall that information was exchanged as to the

partisan attitude of members of each house and as to the

processes within the two house Democratic caucuses.

No record was kept of the activities.


                                                         Page 666


The occurrence of gatherings of this type was apparently

known to other members of the legislature.

In response to the request by a Senate member not on the

committee, the attorney general issued an informal opinion

on the application of the open meeting law to

such situations on March 29, 1975.

The attorney general believed that the statute did apply, but he

temporarily declined enforcement of its forfeiture provisions

until the legislature had the opportunity to affirm or disavow

such meetings as being within either the "partisan caucus" or

"legislative rules" exceptions, section 66.77(4)(g) and (h),


Another private meeting was held on April 24, 1975.

Only the seven respondents were notified.

The stipulated facts recite that the four Democratic party

senators were not notified and did not attend, and they represent

to this court that they did not attend in reliance on the opinion

of the attorney general.

The minority party members also were not notified and did not


Members of the legislative finance bureau and one employee of the

department of administration were present at the meeting.

They briefed the respondents on particular items of the budget

bill and alternatives to such allocations.

The parties to this action agree by stipulation:

17.  That these selected budgetary items were then discussed and

     reviewed by the members in attendance in order to arrive at

     an alternative acceptable to most of the members present.

     That the discussion and review involved factors which were

     essential for the members present to determine the party

     policy and party strategy relevant to the items

     under discussion.

18.  That at this conference it was the purpose and intent of the

     members present to articulate their attitudes and the

     attitudes which they believed were those of other majority

     members not present or of the party itself so that the other

     members in attendance would know where each of the members

     at that time stood and what their thinking was on any

     particular matter at that point in time.


                                                         Page 667


The purpose and design of the conference was to attempt

to reach an alternative that would be acceptable

to the majority as a whole."

The petitioner has alleged that the department of justice was

made aware of this meeting, but that it did not bring

an action under section 66.77(9), Stats.

Another section of the open meeting law, section 66.77(10),

allows a district attorney to institute an action to impose the

monetary forfeiture for violation of the law, section 66.77(8),

upon the verified complaint of any person.

Petitioner district attorney of Dane county received such a

complaint from a member of the legislature on August 25, 1975.

Rather than commence that forfeiture action, the petitioner

requests this court to render a declaratory judgment on the

question of whether the open meeting law was violated

by the seven respondents.

No judgment is requested, according to his pleadings, concerning

the four Democratic party senators on the committee because they

voluntarily ceased their participation in such meetings.

Petitioner has denominated them as necessary parties but not

respondents in this proceeding.

The judgment requested, then, concerns only the named respondents

and their participation in the two private meetings.

Petitioner requests the following declaration of rights:

1.   That the respondents must conform their conduct to the

     provisions of section 66.77, Stats.

2.   That the respondents were in violation of said statute

     on March 11, 1975 and April 24, 1975.

For the petitioner there was a brief and oral argument by

Humphrey J. Lynch, district attorney of Dane county.

For the respondents there was a brief by Richard L. Cates,

John C. Carlson and Lawton & Cates of Madison, and

oral argument by Richard L. Cates.


                                                         Page 668


A brief amicus curiae was filed by H. Joseph Hildebrand

and Flanagan, Steinhilber, Chaney & Hildebrand of Oshkosh,

for Gary R. Goyke.

A brief amicus curiae was filed by Bronson C. La Follette,

attorney general, and John J. Glinski, assistant attorney

general, for the attorney general.


The following issues are presented for determination by this


1.   Is this a proper case for declaratory judgment?

2.   Should a rule of strict construction be followed

     in interpreting section 66.77, Stats.?

3.   Were the private gatherings of the respondents and

     interested parties "meetings" of a "governmental body" as

     described in the statute?

4.   Were these meetings excepted from open session requirements?

5.   In rendering a declaratory judgment, would this court

     violate the doctrine of separation of powers?

Declaratory judgment.

This court has already decided the question of original


Unquestionably the guidelines acknowledged in Petition of Heil

(1939), 230 Wis. 428, 442, 443, 284 N.W. 42, embrace this case,

with its unique issues of interest to this state

and its citizens.

Such action, however, was strictly confined to the question of

which court should entertain this action, or phrased differently,

should the supreme court exercise its original jurisdiction? 

Remaining to be determined by the court of jurisdiction is the

question of the propriety of rendering a declaratory judgment.

The granting or denying of relief in a declaratory judgment

action is a matter within the sound discretion of the court.

Selective Ins. Co. v. Michigan Mut. Liability Ins. Co. (1967),

36 Wis.2d 402, 408, 153 N.W.2d 523; section 269.56(6), Stats.


                                                         Page 669


This discretionary power is most frequently invoked by the

challenge of the adversary of the party seeking judgment,

see:  Rudolph v. Indian Hills Estates, Inc. (1975),

68 Wis.2d 768, 771, 772, 229 N.W.2d 671,

who poses the question of whether the

device is appropriately used.

Miller v. Currie (1932), 208 Wis. 199, 203, 242 N.W. 570.

The unusual roles of the parties here, coupled with statements

from the petitioner that indicate an indifference to the very

right he supposedly seeks to vindicate, make it quite proper

for this court to review this action for compliance with

announced standards for a declaratory judgment, even

if no challenge is issued by the respondents.

A declaratory judgment may be issued only if the action

measures up to the following requirements:

(1)  There must exist a justiciable controversy Ä that is to say,

     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; that is to say,

     a legally protectible interest.

(4)  The issue involved in the controversy must be ripe for

     judicial determination.

     Borchard, Declaratory Judgments, pp. 26-57.'"  

State ex rel. La Follette v. Dammann (1936),

220 Wis. 17, 22, 264 N.W. 627, quoted in

Pension Management, Inc. v. Du Rose (1973),

58 Wis.2d 122, 127, 128, 205 N.W.2d 553.

See:  State v. WERC (1974), 65 Wis.2d 624, 633, 223 N.W.2d 543.

In his complaint, petitioner states:

(26) That the petitioner brings this action to obtain an

     authoritative ruling from this court on whether the

     meetings violate the open meeting law."


                                                         Page 670


The enforcement provisions of the open meeting law

are as follows:

(8)  Any member of a governmental body who knowingly attends a

     meeting of such body at which a violation of this section

     occurs shall forfeit without reimbursement not more than

     $200 for each such violation, provided that he shall not

     be liable if he calls for a vote on whether the body

     shall take that action constituting such violation,

     or if he is recorded in the minutes of the body as

     voting against the action constituting such violation.

(9)  The department of justice may bring an action

     under this section on its own motion.

In such cases, the court shall award the recovery of the

forfeiture together with reasonable costs to the state.

(10) The district attorney may commence an action under the

     section upon the verified complaint of any person.

In such cases, the court shall award the recovery

of reasonable costs to the county.

If no action is commenced within 20 days after verification such

person may bring an action in his own name and, if the defendant

is found guilty of violating this section, the court may award

costs and reasonable attorney's fees to the plaintiff."

Section 66.77, Stats.

In this proceeding, the requested declaratory judgment concerns

the applicability of the statute to a situation described in

facts stipulated by the parties.

This question is markedly different from the question of whether

there was a knowing violation of the statute by the named

respondents, which would be the focus of a prosecution action.

The requested judgment is, however, arising in the penal context,

as the petitioner district attorney of Dane county has an

interest only under such circumstances.

A review of the above-quoted forfeiture provision demonstrates

that this is an act that has penal consequences.

3 Sutherland, Statutory Construction,

section 59.02 (3d ed. 1974).

We note that the originally enacted version of the open meeting

law contained no enforcement provision. Ch. 289, Laws of 1959.

As such it was merely a suggested mode of responsible

governmental procedure.

By Chapter 297, Laws of 1973, the legislature modified

the law and added the forfeiture provision.


                                                         Page 671


The petitioner here seeks a construction of the law apparently

for enforcement purposes and thus consideration cannot be given

to such additional aspects as the "voidability" provision.

section 66.77(3), Stats.

There has been doubt in the past as to whether the declaratory

judgment procedure was proper when penal legislation was


The general rule now is that rights, status or immunities under

penal laws may be the subject of declaratory judgments in a

proper case.

This was acknowledged in Waukesha Memorial Hospital v. Baird

(1970), 45 Wis.2d 629, 635, 173 N.W.2d 700.

It is also generally accepted that a proper case for declaratory

judgment is presented only by the request of the party

threatened by the application of the penal law.

Borchard, Challenging "Penal" Statutes by Declaratory Action,

52 Yale L.J. 445 (1943).

However, since the parties are in fact adversaries, and if the

defendants could have brought this suit as the petitioners and

have not protested the converse form, there is no inflexible

requirement to dismiss the suit.

We do admonish against further suits in this style.

Those in the position of the petitioner have a ready and adequate

forum for their proposed construction of a law in the normal

enforcement action.

Declaratory judgment is reserved for those without

such available recourse.

Prior cases indicate that this court has been willing to

entertain such suits in the past.

In re Petition of State ex rel. Attorney General (1936),

220 Wis. 25, 264 N.W. 633, this court accepted original

jurisdiction for a declaratory judgment sought by the

attorney general on the constitutional validity of

the Wisconsin Recovery Act, which he was to enforce.

An actual controversy was found between him and the tavern

industry subject to the act, and judgment upholding

the constitutionality was found.

Likewise, in Department of Agriculture & Markets v. Laux (1936),

223 Wis. 287, 293, 270 N.W. 548, the court approved what it

deemed a "declaratory judgment determining whether the

questioned sections are constitutional," again

brought by the statute's enforcement officers.


                                                         Page 672


These cases are precedent for the conclusion that this court,

or any trial court, while not encouraging those charged with

law enforcement to petition for declaratory judgments,

will accept such cases in the exercise of discretion.

Such exercise would be guided by the normal

principles of declaratory judgment.

In most situations, the action should be refused until the

order of parties is reversed so that the party

subject to the penal law is plaintiff.

Additionally, Wisconsin has adopted the Uniform Declaratory

Judgment Act, which by its language labels itself remedial

and explicitly calls for a liberal construction.

Section 269.56(12), Stats.

As such, it allows broad construction of "any person . . .

whose rights, status or other legal relations are

affected by a statute. . . ." section 269.56(2).

Implicit recognition of this limited outlet to prosecutors is

demonstrated in section 269.55, Stats., and comparable laws of

other states which allow a declaratory judgment on whether an

item is obscene.

Notice is given to all parties of their potential rights before

resort is had to the criminal prosecution.

See:  State v. I, A Woman Ä Part II (1971),

53 Wis.2d 102, 191 N.W.2d 897;

Gerstein v. "Pleasure Was My Business"

(Fla. App. 1961), 136 So.2d 8.

In the present status of this action, the parties

involved are certainly adverse.

Just as clear is the respondents' interest in contesting this

proceeding insofar as it seeks to label their past

actions as a violation of the statute.

Closer questions are presented as to whether the petitioner has

a legally protectible interest in the controversy, whether

the controversy is justiciable in that this right is

being asserted against the respondents and whether

the controversy is ripe for judicial determination.


                                                         Page 673


Petitioner district attorney has a right of enforcement

when he has received a citizen complaint, receipt of

which is alleged in his complaint.

Is this right of enforcement, coupled with the overall duty

of a district attorney under section 59.47(1), Stats., such

a right that enables him to seek declaratory judgment

relief under our declaratory judgment act?

City of Nevada v. Welty (1947), 356 Mo. 734, 203 S.W.2d 459 at

460 and State ex rel. Hopkins v. Grove (1921), 109 Kan. 619, 201

Pac. 82 at 84, both acknowledge this right for declaratory

judgment purposes.

Is the controversy justiciable, in that the petitioner is

asserting his enforcement right against the respondents? Some

doubt has arisen on this point following the petitioner's

acknowledgment that he would not seek a conviction upon a

declaratory judgment finding a violation of the law.

The respondents urge that the controversy is still alive, in

that the citizen complainant may start an enforcement suit if the

district attorney declines to prosecute.

Section 66.77(10), Stats.

Furthermore, the language of the statute does not indicate that

the Department of Justice is barred from suit merely because

they declined action in the past. Section 66.77(9).

Both those parties have submitted amicus curiae briefs

rging that a violation be found.

It must again be stressed that the question before the court is

whether the terms of the act were violated; the question of

prosecution is not part of the requested judgment, as it

involves the scienter element, a "knowing" violation.

The respondents' strong reliance on an exception to the law, one

that is arguably imprecise, certainly impairs any claim that this

was a known violation of clear provisions of law.


                                                         Page 674


Doubt will continue until a construction of the statute

resolves its meaning.

Objections that the criminal prosecution is the only

forum for that purpose are in error.

Potential defendants may seek a construction of a statute or a

test of its constitutional validity without subjecting themselves

to forfeitures or prosecution.

Borden Co. v. McDowell (1959), 8 Wis.2d 246, 99 N.W.2d 146;


Wisconsin Fertilizer Asso. v. Karns (1968), 39 Wis.2d 95,

                                           158 N.W.2d 294;

Soglin v. Kauffman (D.C. Wis. 1968), 295 Fed. Supp. 978,

affirmed (7th Cir.) 418 F.2d 163.

Respondents certainly wish to know whether they can be

prosecuted for similar gatherings in the future.

The strongest rationale against dismissal of this action remains

their interest in having the propriety of their proceedings

clarified, irrespective of how this particular district

attorney feels about prosecution for the last two in question.

Justiciability is present.

Finally, is the controversy ripe for judicial determination?

State ex rel. La Follette, supra, provides an example of this


There the state governor sought a declaratory judgment on his

power to fill vacancies on boards and commissions, caused by

deaths and resignations, until the legislature reconvened.

He sought the judgment because he had been advised by the

secretary of state that the latter would neither honor the

appointments nor pay the salaries of such appointees.

In refusing to decide the action on this contingent fact,

the court required the governor to actually make such

appointments to see if the threat would be carried out.

This case presented an example of the key question

summarized in the above "ripeness" requirement:

"When are the facts sufficiently developed to admit of a

conclusive adjudication, and when are they so contingent

and uncertain as to justify a refusal to decide?".

Borchard, Declaratory Judgments, supra, at 56.


                                                         Page 675


Factual uncertainty was the barrier to an adjudication

in the Waukesha Memorial Case.

The "ripeness" requirement does not demand that one "act on his

own view of his rights and perhaps irretrievably shatter the

status quo," Id. at 58, yet if another act can be taken

to remove contingencies and doubt, it should be

taken to make the action proper.

Factual circumstances determine whether this factor is satisfied.

By their factual stipulation, the parties have presented a case

that is not uncertain.

Acts have been taken, and the only contingency is prosecution,

which waits upon the requested judgment or perhaps upon

future repetition of the decried meetings.

The "ripeness" criterion is fulfilled.

Miller v. Currie, supra, offered a further elaboration on this

timeliness aspect of a request for a declaratory judgment.

Admonitions that all interested parties be determined and be

present, that a determination of solely future rights be avoided,

and that decisions not be made on merely contingent interests,

all are satisfied here.

The stipulated facts also insure that a decision here will

terminate the controversy as to the application of

the law to those circumstances.

This finality requirement exists under section 269.56(5),

Stats. Standard of construction.

Because a declaratory judgment action may involve a reversal

of the roles of the usual plaintiff and defendant, care must

be taken in determining where the burdens of proof and

persuasion lie.

Note, 1941 Wis. L. Rev. 513.

Additional care must be exercised in discerning the real nature

of the action and the standard of construction to be

employed in interpreting the statute.

The most persuasive rationale for allowing a declaratory judgment

is the interests of the respondents in having a fair warning

as to their penal liability.

Likewise, the interest of the petitioner lies only in the

enforcement of the law, in which aspect he must also accept the

strict construction that is given to laws being penally applied.

State ex rel. Gaynon v. Krueger (1966), 31 Wis.2d 609,

                                       143 N.W.2d 437.


                                                         Page 676


If the respondents here were involved in a direct forfeiture

action, they would be entitled to have a strict construction.

The same rule would be appropriate if they commenced

the declaratory judgment action.

See: Frank v. Kluchesky (1941), 237 Wis. 510, 297 N.W. 399.

Strict construction of forfeiture laws has been followed

even if enforcement is not involved.

Capt. Soma Boat Line, Inc. v. Wisconsin Dells (1973),

56 Wis.2d 838, 845, 203 N.W.2d 369.

In State ex rel. Dept. of Agriculture v. Land O'Lakes Ice Cream

Co. (1945), 247 Wis. 26, 18 N.W.2d 325, a police power statute

regulated the size of containers to be used for the sale

of milk and cream.

A $500 penalty was to be recovered by the attorney general for

violations by manufacturers, as in the present case, while

dealers who used nonconforming containers were declared

to be guilty of using false measures, which act carried

a fine or imprisonment under another statute.

The court recognized that the statute as applied to the

defendants was, after all, a criminal statute and must be

strictly construed such that the failure expressly to permit an

act could not be construed as a prohibition. Id. at 29.

Thus the actual nature of the underlying proceedings dictated

this standard even though the enforcement officer was the one

who raised the issue as petitioner in a declaratory judgment.

Reference is made to the liberal attitude of the Florida courts

in interpreting that state's open meeting law.

Fla. Stats. section 286.011 (1973).

In Board of Public Instruction of Broward County v. Doran

(Fla. 1969), 224 So.2d 693, it was held that the law was enacted

for the public benefit and should be interpreted most favorably

to the public despite its penal nature.

In reaching this result, the Florida court reasoned that the

presence of penalties for certain specific violations of the

Workmen's Compensation Act did not require that the whole

of that act be strictly construed.


                                                         Page 677


For an exactly similar analogy, see:  Laman v. McCord (1968),

245 Ark. 401, 432 S.W.2d 753.

When an act requires many different performances, only some

of which are coupled with sanctions for noncompliance, it is

obvious that a strict construction is not to be extended

to those provisions not carrying a penalty.

The analogies applied by Florida and Arkansas are not persuasive

when the forfeiture provision, as here, applies to any violation

of the entire law and the proceeding involving interpretation

are concerned with the punitive aspect.

The act places the duty to prosecute any violation on the

Wisconsin Department of Justice and the district attorney.

We acknowledge that authority can be found which seems to

repudiate a strict construction.

Sutherland reviews both the older and more modern justification

for strict interpretation rule for punitive legislation,

including forfeiture laws. Id. at section 59.02.

He also observes that

     "Where public or social interests in penal legislation is

     especially great the policy of giving penal laws a very

     strict construction may be relaxed."  Id. at section 59.05.

The authority produced by Sutherland for the above quoted

proposition, Caminetti v. U.S. (1917), 242 U.S. 470, 37 Sup.Ct.

192, 61 L.Ed. 442, did not pronounce such theory verbatim.

The case is in fact not inconsistent with strict construction.

In construing a statute we attempt to find the common sense

meaning and purpose of the words employed, and therefore review

the intent of the legislature.

State v. Vlahos (1971), 50 Wis.2d 609, 616, 617,

                       184 N.W.2d 817;

See:  State ex rel. Gutbrod v. Wolke (1971), 49 Wis.2d 736, 749,

                                            183 N.W.2d 161.

Sutherland's quoted proposition above is a more narrow example of

this broader rule, recognized by Sutherland in section 59.06,

that the purposes of the legislature are appropriately to be

considered in a review of punitive legislation.

Heidersdorf v. State (1958), 5 Wis.2d 120, 123, 92 N.W.2d 217.


                                                         Page 678


The legislature did provide some indication of its intent in the

enactment of this statute, and it is to be given great weight.

State ex rel. Harvey v. Morgan (1966), 30 Wis.2d 1, 10,

                                       139 N.W.2d 585.

66.77     Open meetings of governmental bodies.

66.77(1)  In recognition of the fact that a representative

          government of the American type is dependent upon

          an informed electorate, it is declared to be the

          policy of this state 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

          affairs and the transaction of governmental


          The intent of this section is that the term "meeting"

          or "session" as used in this section shall not apply

          to any social or chance gathering or conference not

          designed to avoid this section.

Although the initial wording indicates that a broad application

is intended, a qualification appears by the language that the

adherence will be only such "as is compatible with the

conduct of governmental affairs and the transaction

of governmental business."

Apparently if open session requirements prevent the fair process

of democratic government, the specific requirements are relaxed.

Specific exceptions to the law, typically necessary and

justifiable occasions for privacy, have been listed

in section 66.77(4), Stats., and they both qualify for the

intended exception and also illustrate its meaning.

Mere government inconvenience is obviously no bar to the

requirements of the law.

Our statute does contain the scienter requirement of "knowing." 

This declaratory judgment, as requested, is A review of the

statute convinces a reader that its meaning is not so plain that

a "knowing" allegation can be sustained on every violation

that may be developed in its interpretation.


                                                         Page 679


The lack of uniformity among petitioner and the two amici

curiae as to how a violation occurred under the law

reiterate that the language is not clear.

But in arguing that a liberal rather than strict interpretation

should be followed when ambiguities appear, especially when the

question of a violation is raised in a penal context, the

petitioner would transform this action into an advisory opinion

unrelated to its factual contents, contrary to the rules of

declaratory judgment. State v. WERC, supra.

Not only would the liberal construction be in disregard of the

actual controversy, it would also cause the court to enlarge the

reach of enacted crimes or alter the incriminating components as

prescribed and proscribed by the legislature.

See:  Morissette v. United States (1952), 342 U.S. 246, 263, 72

Sup.Ct. 240, 96 L.Ed. 288.

This prohibited practice amounts to legislation by the court.

Frank, supra, at 517, 518.

Attempts to address broader issues through a liberal

construction, when a strict scrutiny is given ambiguous statutes

in a normal prosecution, would provide a more tangible basis for

future prosecutions than is afforded by the law itself.

The petitioner, in perhaps seeking a construction such that due

process "fair notice" problems are minimized, see: Frank, supra,

cannot avoid this maxim of interpretation.

We conclude that a liberal construction is contrary to the

procedure of a declaratory judgment and poses

constitutional problems as well.

Due deference should be given to the balance of interests

reflected in the statute's stated purpose with resort to

a strict interpretation when ambiguity arises from

the wording of the statute.


                                                         Page 680


Open meeting law.

The broadest provision of the open meeting law is contained in

section 66.77(3), Stats.

66.77(3)  Except as provided in subsection 66.77(4), all

          meetings of governmental bodies shall be open sessions.

          No discussion of any matter shall be held and no action

          of any kind, formal or informal, shall be introduced,

          deliberated upon, or adopted by a governmental

          body in closed session, except as provided

          in subsection 66.77(4).

          Any action taken at a meeting held in violation

          of this section shall be voidable.

It states the duty imposed on members of government, in both

positive and negative admonitions of the rule.

Except under certain specified circumstances, all governmental

bodies must conduct their meetings in open sessions; if the

meeting of the governmental body occurs under circumstances that

do not meet the standards of an open session, then that body is

forbidden both from having any discussion and from introducing,

deliberating upon or adopting any formal or informal action.

Actions taken contrary to this admonition are declared voidable.

Although this aspect is unclear, perhaps meaning that tangible

actions can be thus voided while intangible thought processes

from discussion cannot be reached by such a labelling as "void,"

the construction of that item is not necessary to this action.

The meaning of "governmental body" is crucial for this

proceeding, just as it is the key term to this statutory plan.

Besides being used to define "meeting," the term is used with and

without "meeting" in the broad statements of coverage and

exclusion in section 66.77(3) and (4), Stats., and in the other

regulatory admonitions of section 66.77(5), (6), (7) and (8).

In the definition section of the legislation,

it is provided that:

66.77(2)(c)  "Governmental body" means a state or local agency,

              board, commission, committee, council or department

              created by constitution, statute, ordinance, rule

              or order; a municipal or quasi-municipal

              corporation; or a formally constituted

              subunit of any of the foregoing."

Section 66.77(2), Stats.


                                                         Page 681


The open meeting law thus defers the determination of the

existence or composition of a particular governmental

body to the enactment which creates the body.

Stated another way, the question of whether a particular group of

members of the government actually compose a governmental body is

answered affirmatively only if there is a "constitution, statute,

ordinance, rule, or order" conferring collective power and

defining when it exists.

The creating enactment or the created body in turn

might define "formally constituted subunits."

As stipulated in this case, the governmental body whose

members allegedly were involved in violating the law

was the joint committee on finance.

That committee consists of fourteen members of the

legislature, drawn from both houses.

The committee obviously can be categorized as a "committee .

. . created by . . . statute."  section 66.72(2)(c), Stats.

The members of the committee are also members of the legislature,

in sessions of which they exercise that power which is

conferred upon that body as a whole.

Whether the members of the committee are in fact acting as the

committee in any given time depends upon the rules governing it

that are applicable from the source which created it.

Although the actual statute that provides continual authority

for the committee does not detail its mode of operation,

it is presumably governed by the same structure

followed by the legislature.

The houses of that body, as well as their committees, lack all

power and authority, and thus lack existence as a body, until a

quorum, defined as a majority of members, is assembled.

Wisconsin Constitution, art. IV, section 7; 1975 Assembly Rules

15, 22 (1); 59 Am. Jur. 2d, Parliamentary Law, p. 320,

section 4 and p. 322, section 6 (1971).


                                                         Page 682


The process of composing a body competent to act officially

commences upon a required notice to all members that the

organic body is to meet. 59 Am. Jur. 2d, supra.

Its existence, and therefore its legal meeting, start with

a roll call to determine the presence of a quorum.

Jefferson's Manual of Parliamentary Practice, art. VI.

Reiterating the above proposal as the proper method for

interpreting "governmental body" is the definition

of "meeting" which incorporates the other term:

66.77(2)(b)   "Meeting" means the convening of a governmental

               body in a session such that the body is vested

               with authority, power, duties or responsibilities

               not vested in the individual members."

               Section 66.77(2), Stats.

The rather formal language employed Ä the "convening . . . in a

session," and not just any session, but rather a "session such

that the body is vested with authority, power, duties or

responsibilities not vested in the individual members" Ä

compels a conclusion that those sessions where the

members compose a legally competent governmental

body are "meetings" under the statute.

At the point of bringing the governmental body to its

collective existence, the members are faced with

compliance with the open session requirement.

If those responsible for calling the meeting have done their

duty, a proper site and advance public notice would be procured.

Should a deficiency be noted, the body is forbidden to

proceed, even informally, with its business.

There may, of course, exist grounds as specified in section

66.77(4), Stats. for which a closed session would be had, but

section 66.77(5) apparently compels that the decision for a

closed session and the nature of the business to be privately

discussed must be announced in an open session.

This could either occur at an earlier open session which

announces that the body will convene in a future closed session,

or else could occur at a meeting already commenced under the open

session requirements, subject to the restraint against

reconvening in open session again within a twelve hour period.

It is obvious that a governmental body cannot convene in a

session that does not satisfy the "open" requirements and then

try to remedy the deficiency by announcing in such inadequate

circumstances that a closed session will then be undertaken.


                                                         Page 683


The petitioner and the amici curiae all would object to

any interpretation of the above language that restricts

its meaning purely to the formal sense that is intended

by the plain language.

Urging liberal construction and an alleged intent of the

legislature that a different meaning is involved, these

parties seek some method to reach those members of a

governmental body who would fail to follow the

formalities of convening a competent body.

The arguments proposed to reach such end involve a

torturous reading of the law's provision.

A common tactic is circuitous reasoning, i.e., when any member of

a governmental body meets with another member they are thus

meeting and are thus a governmental body.

The goal sought to be attained by such parties may be

reached without doing violence to the plain wording.

The problem is adequately addressed in the preamble to the law:

     The intent of this section is that the term "meeting" or

     "session" as used in this section shall not apply to any

     social or chance gathering or conference not designed to

     avoid this section."  (Emphasis supplied.)

Reading this language with the preceding statements that the

public is entitled to the fullest information "as is compatible

with the conduct of governmental affairs and the transaction of

governmental business," the drafters acknowledged that members

of government organizations frequently interact and socialize

with their fellow workers.

Comment, 45 Miss. L. J. 1151, 1167-1170 (1974).


                                                         Page 684


Conversations on actual or potential government

business are bound to occur.

To declare that such discussions must proceed only after public

notice and in a publicly accessible place would be not only

impossible of enforcement but ludicrous if attempted.

A serious question of deprivation of privacy

would also be potential.

An exception from the defined gatherings to which the law must

apply was therefore enacted for social or chance gatherings.

Since it is stipulated that such were not involved here, no

attention may be directed to whether the language Ä "was designed

to avoid this section" Ä modifies those situations.

It is clear, however, that such language does pertain to


If members of a governmental body intentionally gather to

discuss business without undertaking a formal meeting,

they can be described as in a conference.

It may occur that the entire membership of a body gather

and "confer" before proceeding to hold their meeting.

The same may happen to a majority and thus a quorum

of the membership.

Finally any group less than a quorum, down to

only two members, may confer.

The statute does not let such possible gatherings

exist as an evasion of the law.

A conference may be analyzed to see if it is designed

to avoid an open meeting requirement.

If such intention is discerned, it may thereupon be designated a

"meeting" under the statute for analysis of its exact

noncompliance with open session requirements.

Obviously whenever such intent is admitted, little problem is

presented to the enforcement officer.

More often, however, circumstances will be presented where sound

discretion will be required of the prosecutor and courts; this

will be especially required when the conference is charged as the

crucial point in decision-making, with the formal meeting being a

mere "rerun."  Wickham, Let the Sun Shine In!

Open Meeting Legislation Can Be Our Key to Closed Doors in State

and Local Government,

68 N.W. U. L. Rev. 480, 490-495 (1973).


                                                         Page 685


The revision of our open meeting law when forfeiture was added as

a sanction also included the addition of conferences "designed to

evade the law."  The establishment that such occurred, for

prosecution purposes, is obviously a question of fact.

Circumstances themselves, however, may dictate that evasion is

being designed.

If every member of a governmental body is present at a conference

and any of the broad activity that composes governmental activity

as defined in section 66.77(3), Stats., is undertaken, a question

of evasion is posed; the members are exposing themselves to the

jeopardy of a prosecution.

A chance gathering would not justify governmental activity being

intentionally conducted, unless an emergency or other

difficulties (other than that engendered by open session

compliance) made such action necessary.

A planned conference of the whole offers no such exigent excuse.

Likewise, when a majority and thus a quorum gather, it is a rare

occasion which can justify any action without open session

compliance and therefore not be considered an evasion of the law.

Quorum gatherings should be presumed to be in violation of the

law, due to a quorum's ability to thereafter call, compose and

control by vote a formal meeting of a governmental body.

As to the March 11, 1975 gathering, petitioner and both amici

curiae agreed that a majority, a quorum of the committee,

participated in a private conference.

Their purpose was to receive expert advisory opinions, which

action would fall into the informal government activity described

in section 66.77(3), Stats.

When the members of a governmental body gather in sufficient

numbers to compose a quorum, and then intentionally expose

themselves to the decision-making process on business of their

parent body Ä by the receipt of evidence, advisory testimony, and

the views of each other Ä an evasion of the law is evidenced.


                                                         Page 686


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.

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 rational

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.

Only seven of the fourteen members of the committee

were present at the April 24, 1975 meeting.

This is less than a quorum.

Amicus curiae attorney general would find no violation here.

Petitioner and citizen complainant Gary R. Goyke urge that

this private conference was in violation of the law.

The arguments of Goyke on the circumstances presented in

the April 24th meeting are clear and persuasive.

Because the committee has an even number of members, all action

can be effectively stymied if seven members, one-half of the

whole body, vote and act in concert, a unit vote that may

occur because the seven have engaged in private, group

investigation of the matters before their parent body.

It is a short step from the initial and predictable ability to

frustrate all action to thereafter control it, through the

shift of one member of the unorganized other half.

In committees with an even number of members, this "negative

quorum" has the automatic potential of control that, like

quorums elsewhere, dictates that it publicly engage

in the public's business.

In the authority cited to bolster his argument

on the "negative quorum," Goyke refers to

the decisional law of Florida.


                                                         Page 687


By drawing a precise line of distinction as to why the

open session requirements should apply under the

circumstances, he was able to avoid the dubious

results that have occurred under that law.

In Bigelow v. Howze (Fla. App. 1974), 291 So.2d 645, 647,

it was held that the decision-making processes of a duly

appointed subcommittee of a public body, if composed

of more than one member, must be held in public,

even though such subcommittee members constitute

less than a quorum of the public body who

must act on their recommendation.

It is clear that the same court would have applied the law

to any informal group of members of a governmental body,

less than a quorum, who discuss pending business.

Supporting authority was a concurring opinion in another case

which decried attempts to hide a conference decision of a quorum

by breaking into separate but communicating subgroups.

The end result of Bigelow was the finding that two members of

the group, assigned to investigate an out-of-state project,

had violated the open meeting law by discussing their

impressions during the return journey.

The sham used to conceal the existence of a privately-meeting

quorum does not require that the open meeting requirements be

applied to all private conferences involving less than a quorum.

It is certainly possible that the appearance of a quorum could be

avoided by separate meetings of two or more groups, each less

than quorum size, who agree through mutual representatives

to act and vote uniformly, or by a decision by a group of

less than quorum size which has the tacit agreement and

acquiescence of other members sufficient to reach a quorum.

Such elaborate arrangements, if factually discovered, are an

available target for the prosecutor under the simple quorum rule.

An absolute rule requiring an open session, simply when only two

members of a body confer, clearly is not within the statute.


                                                         Page 688


Such a rule would prohibit conferences even if the number

of members were less than the appropriate quorum or "negative

quorum" test (according to the parent body's composition)

and were not otherwise evasions of the law,

such as concealed quorums.

Proponents of such coverage would argue that minority groups

are capable of fashioning government action in secret,

although to a lesser degree than quorum groups.

When the membership of a governmental body is small,

only a few members can control it; when the body is

large and the conference group is also large but

just short of a quorum or "negative quorum,"

effective control is also possible.

This is so because absences, abstentions and the

random votes of unaffiliated members may propel

their private decisions into acceptance.

Without precise guidelines, this proposed construction apparently

extends to any conference between two governmental body members.

Even a liberal interpretation of the statute

hardly supports this conclusion.

Initially, the meetings of a minority lack the efficacy

that commands that quorum or "negative quorum"

conferences be held in open session.

In a quorum decision in private, the conference participants

have the later power to call and establish a competent

official body, and then immediately vote their

predecided position into existence.

This is known beforehand and can be automatic, subject

to the possible change of heart of a participant.

When the group in conference is a minority, their opportunity

to take such ultimate action depends on chance factors.

There is no guarantee of success.

Both the innocent and the schemer have the same chance

that unpredictable factors will put them in

a position to dictate a result.

This limitation separates them from conferences which can dictate

a binding result, a strength that allows the presumption that an

evasion of the laws occurs in a quorum or "negative quorum"

private gathering.


                                                         Page 689


Lack of this strength compels the conclusion that minority

group gatherings are no evasion, even if there is a

possibility of their attaining a chosen goal.

Besides lacking that efficacy that determines whether a

conference is a "meeting," minority group gatherings appear

to be beyond the coverage intended by the legislature.

To impose open session requirements on all government business

discussions between at least two members of the same body,

merely on the basis that such discussion somewhat enhances

the possibility that mutual interests will be furthered and

possibly carried out in the form of some future official action,

would virtually impede much of the preliminary labor involved

in any government action and thus be incompatible with the

necessary "conduct of governmental affairs and the

transaction of governmental business."

A law embracing such private discussions would raise many

constitutional objections.

Given a choice of possible interpretations, this court

must select the construction that results in

constitutionality rather than invalidity.

In re Petition of Madison Metropolitan Sewerage Dist. v.

Department of Natural Resources (1974), 63 Wis.2d 175, 185,

                                       216 N.W.2d 533,

Just as we will choose a reasonable construction rather than one

that leads to unreasonable or absurd results,

Browne v. State (1964), 24 Wis.2d 491, 131 N.W.2d 169.

The strict rule of construction would also dictate that the law

be so applied, if it could be contended that the legislative

intent is indeterminative, because the proposed construction

reaching two-member meetings is an outgrowth

of statutory ambiguity at best.

This imprecision initially opens the law to the charge that

it is too vague to be enforced consonant with due process.

Jones v. State (1972), 55 Wis.2d 742, 745, 746, 200 N.W.2d 587.

Additionally, and even if the law could be viewed to

clearly cover two-member discussions,

problems of overbreadth would occur.


                                                         Page 690


This constitutional doctrine decries government penal intrusion

into areas protected by the individual's First Amendment

freedoms, such as of speech and of association. State v. Mahaney

(1972), 55 Wis.2d 443, 447, 448, 198 N.W.2d 373.

Equally abhorred is the sweep of the law that comes so close as

to have a discouraging or "chilling" effect on the exercise

of these rights. Jones, supra, at 747.

This problem was apparently recognized and resulted in the

exclusion of chance and social gatherings from the

reach of the statute.

A construction of the law that covers minority gatherings

down to two members would resurrect such a problem.

The argument in petitioner's brief does not explicitly

acknowledge a "negative quorum test," so some attention should be

directed as to whether he has proposed a viable alternative basis

for finding a violation.

By the stress laid on certain facts, it appears that he is

arguing that some particular circumstances involved

in these meetings are perhaps such a basis.

Initially, most of his argument, as indicated by the topic

headings in his brief, concerns the eleven-member

meeting of March 11, 1975.

The fact that the members involved were all of the same political

party, one that has a majority control in the legislature,

is cited.

This has no particular significance when the more important

factor of "quorum" or "negative quorum" in numbers is involved.

Perhaps the implication is raised that the seven member meeting

of April 24, 1975 should be afforded special coverage because

those members could exercise partisan influence on their

nonattending colleagues.

That argument is totally refuted by the facts.

The Senate members refused to attend the meeting

in the apparent belief that it was improper.

In the official action of the whole committee, none joined with

the seven respondents in approving a budget proposal; a majority

was obtained only with the vote of a member of the opposition

political party.


                                                         Page 691


Mention is also made of the presence of legislative

finance bureau members at these conferences.

Although the argument is directed mainly to the "partisan caucus"

exception, discussed infra, there may perhaps be the implication

that the use of the talents of these government employees

transformed the conference into a governmental body meeting.

Government activity in general, as it is so broadly defined in

section 66.77(3), Stats., to include even discussion of

government business, is a necessary element in any gathering that

qualifies for the open session requirement, but the occurrence of

such an activity as discussion does not by circuitous reasoning

somehow transform an otherwise unqualified gathering into a

"meeting" of a "governmental body."

Neither would the presence of bureau members.

The statutory authorization directing its activity allows the

bureau to advise members of the legislature, not just its parent

body and committees. section 13.95(1)(e).

Presence of these members is indicative of the conduct of

governmental business, which in turn is relevant in determining

whether a conference in evasion of the law is occurring, but this

presence does not transform an informal conference into the

strictly-defined official governmental body meeting.

Statutory exceptions.

The conferences under scrutiny here must be tested for open

session compliance unless otherwise excepted from that


A governmental body is allowed to convene in closed session for

purposes of:

"Partisan caucuses of members of the state legislature"; section

66.77(4)(g), Stats.


                                                         Page 692


Respondents claim reliance on this exception.

It is stipulated that committee members who were also members of

the Democratic party were the only governmental body members

involved in the conferences.

Another stipulation acknowledges that the committee chairman

assigned specific areas of the budget to the party members for

their study and recommendation to their partisan comrades.

Petitioner initially objects to the depiction of these

conferences as mere partisan caucuses.

One curious argument is that they cannot be such if government

business is being discussed.

The statutory exception does not so qualify its application.

Partisan caucuses have little purpose other than to choose party

leadership and thereafter discuss governmental business for the

purpose of attaining a unified party position on the subject.

To hold that legislative members can have partisan caucuses but

cannot discuss governmental matters would render the statutory

language superfluous, which is to be avoided.

Associated Hospital Service, Inc. v. City of Milwaukee (1961), 13

Wis.2d 447, 109 N.W.2d 271.

Objection is also raised that the conference cannot be called a

partisan caucus because of the presence of the bureau members.

The status of the governmental body members, not that of the

resource people called in to assist them, is determinative of

whether the caucus is partisan.

Members of the various legislative bureaus, at any rate, are to

be strictly nonpartisan, apparently for just such a purpose.

Secs. 12.92, 13.93 and 13.94, Stats.

The key argument against the application of the exception under

these circumstances is the assertion that it was intended only

for the traditional, institutionalized partisan caucuses of the

whole of the houses.

This contention was announced by the attorney general in his

informal opinion concerning these meetings.

In the context of that writing, it appears to be a conclusion

that follows his earlier assumption that the reach of the law is

to be liberally construed and its exceptions strictly interpreted

against those seeking avoidance.


                                                         Page 693


As indicated before, imprecision in the law is to be interpreted

in favor of claimants threatened with forfeitures.

Obviously the exception does apply to such

whole house partisan caucuses.

No persuasive argument is forwarded as to why it does not also

apply to partisan caucuses of the committees.

Even apart from its source in liberal interpretation, the

attorney general's conclusion would be supportable if the

exception were simply for "partisan caucuses of the state

legislature" rather than "partisan caucuses of members of the

state legislature."  section 66.74(4)(g), Stats.

It is no secret that the legislature has resorted to the

committee system to administratively cope with

the press of business before it.

In his informal opinion, the attorney general acknowledged

the "custom" of partisan caucuses on the

particular committee involved here.

Counsel for the respondents confirmed that legislative

committee members do have partisan conferences.

There is no basis to conclude that such caucuses are prohibited

by language that plainly includes them.

We note that within a "formal, institutionalized" caucus of the

whole house, committee members could be instructed to confer and

discuss pending business in their committees for a progress

report and recommendation to the whole body, thus achieving the

same result sought to be avoided by the unsupported and

restrictive interpretation offered against the respondents here.

It should also be noted that "partisan caucuses" are inherently

conferences and not "meetings of a governmental body."

Thus the prior notice requirement of a closed session of

a governmental body meeting is also not applicable.

It may appear that committee partisan caucuses unduly inhibit

the open meeting law and are unnecessary

for the "conduct of governmental affairs and the transaction

of governmental business."  section 66.77(1), Stats.


                                                         Page 694


However, that contention is equally applicable to

partisan caucuses of the whole.

Yet it was the legislature, not this court, which determined

to provide exceptions to the law and drafted them to its own


Not every state that has an open meeting law includes its state

legislature within the coverage.

The legislature may redraw or abandon the "caucus" exception if

this construction is not in accord with its intent, and would be

the proper forum for citizen dissatisfaction with a partisan

caucus exception.

Since the voters of this state apparently give some weight to

party labels, there may in fact be a silent but overwhelming

majority who believe that their party should be able to

privately caucus in the legislature and its committees.

Issue of separation of powers.

The respondents contend that the constitutional guidelines

of separation of powers precludes this court from

entering a declaratory judgment.

Various cases are analyzed and abstract principles 

are thereupon distilled by the respondents.

It is argued that the legislature has broad powers,

which it may use at its discretion, which may

include "arbitrary and improper" judgment.

In re Falvey (1858), 7 Wis. 528, 538 or questionable

motives, State ex rel. Reuss v. Giessel (1952), 260 Wis. 524,

                                                 51 N.W.2d 547.

Further, it is noted that the legislature can act

contrary to its own rules of procedure.

McDonald v. State (1891), 80 Wis. 407, 412, 50 N.W.

185, and, it is claimed, ". . . contrary to statutes which

purport to regulate procedure, more particularly, the antisecrecy

statute."  Outagamie County v. Smith (1968), 38 Wis.2d 24, 155

N.W.2d 639; Respondent's Brief, p. 15.

Finally, courts will intervene only if the legislative procedure

or end result constitutes

a deprivation of a constitutional right. See:  State ex rel.

Elfers v. Olson (1965), 26 Wis.2d 422, 426, 132 N.W.2d 526.


                                                         Page 695


This last pronouncement must be corrected by the qualification,

obvious in the context of the cases and specific in Elfers,

supra, that the court will not overturn the decisions

of the legislature.

As previously stated, a requested declaratory judgment cannot

address hypothetical questions, especially that of the validity

of the actions of the committee after a violation of the open

meeting law occurred in its proceedings.

The question posed here is whether certain facts compose a

violation of a law enacted by the legislature.

The possibility that some legislators may tend to be inhibited in

their future proceedings, due to the chance of a forfeiture

action, does not equate with legislative decisions being

questioned by the judicial branch of government.

This application of the law is only to individuals.

A more persuasive rationale for this same result, one which may

incidentally offer guidance on the jurisdiction of the

courts in reviewing legislative decisions, does exist.

Respondents correctly assert that mere violations of

parliamentary rules of procedure are no

grounds for voiding legislation.

McDonald, supra.; 59 Am. Jur. 2d, Parliamentary Law, secs.

1-2. The obvious rationale is that they may be suspended by the

body and have no binding force on subsequent terms of the body.

Id. Respondents undoubtedly have no quarrel with the opposite

time-honored precept, established in Marbury v. Madison (1803),

1 Cranch 137, 2 L.Ed. 60 that the judiciary may review the acts

of the legislature for any conflict with the constitution.

Elfers repeated this duty.

An area of uncertainty may exist as to the jurisdiction of a

court to review the activity of a legislature for a

violation of a statute duly enacted by it.

Respondent questions such power on the basis

of the Outagamie County Case.


                                                         Page 696


This issue has application to both the jurisdiction of a court to

challenge the validity of the ultimate decisional act that is

produced through such activity, as well as the jurisdiction to

impose any statutory sanctions that would be applicable.

Implicit in this later question is the apparent belief of the

respondents that a legislature could not delegate such forfeiture

authority, even if the statute plainly applies to them, as here.

The doctrine of separation of powers presumably prevents what

would otherwise constitute an intentional waiver.

A violation of a statute in the enactment process of regulations,

by bodies of lesser status than the highest legislature of a

jurisdiction, renders such regulations void even if passed in

conformance to the lesser body's internal rules of procedure.

Anderson v. Grossenbacher (Tex. Civ. App. 1964), 381 S.W.2d 72;

Heiskell v. Baltimore (1886), 65 Md. 125., 4 Atl. 116.

These decisions indicate that statutory law is to equate with

the organic constitutional law, but since they are made in the

context of bodies subordinate to the source of the statute,

they are of limited application to the particular

question involved here.

Of more importance is Ex parte McCarthy (1866), 29 Cal. 395.

The California legislature had ordered a newspaper publisher

to give testimony before the body on his knowledge

of bribery among its members.

Upon his refusal, he was jailed for contempt, a power

vested in that legislature by its constitution.

McCarthy petitioned the court for his release on grounds

that included denial of counsel by the legislature.

The court there cited In re Falvey, supra, in refusing to act,

a case which is relied on by the respondents for their

contention that the judiciary may not review the

discretionary judgments of the legislature.

However, both Falvey and McCarthy reiterate that the court

may review the action to see whether the body had exceeded

its jurisdiction. McCarthy, supra, at 403.

                  Falvey, supra, at 553;


                                                         Page 697


he California court went further:

     "Had the Senate the power or jurisdiction

      to investigate the charges of bribery

      in question for any purpose?

     "We shall first consider this question by

      the light of the common parliamentary law,

      independent of any restrictions placed

      thereon by the Constitution or any laws

      made in pursuance thereof.

     "A legislative assembly, when established,

      becomes vested with all the powers and

      privileges which are necessary and

      incidental to a free and unobstructed

      exercise of its appropriate functions.

      These powers and privileges are derived

      not from the Constitution; on the contrary,

      they arise from the very creation of a

      legislative body, and are founded upon the

      principle of self preservation.

      The Constitution is not a grant, but a

      restriction upon the power of the

      legislature, and hence an express

      enumeration of legislative powers and

      privileges in the Constitution cannot be

      considered as the exclusion of others not

      named unless accompanied by negative terms.

      A legislative assembly has, therefore, all

      the powers and privileges which are necessary

      to enable it to exercise in all respects, in

      a free, intelligent and impartial manner, its

      appropriate functions, except so far as it may

      be restrained by the express provisions of the

      Constitution, or by some express law made unto

      itself, regulating and limiting the same." 

      (Emphasis added; citation omitted.) Id.

In expressing the legislature's power, there is a perception

by the court that statutes are more equatable with the


than with mere internal rules and must be adhered to by their


It is not all that clear that Outagamie County contradicts this


By an act of the legislature, the lawmakers directed the governor

to appoint a special committee, whose composition was defined,

which would establish criteria and evaluate proposals meeting

such criteria relating to a site for a new state university.


                                                         Page 698


The committee was to recommend sites to the governor and other

officials who, with the assistance of the legislature, would

choose a site.

A citizen complainant brought suit for a declaratory judgment

that would declare void the recommendation and choice.

The petitioner there claimed that the committee's recommendation

violated its publicly announced criteria and that the committee

had established new criteria in a session violating the then

existing open meeting law, section 14.90, Stats. 1967.

This court refused to enter a declaratory judgment on the general

basis that since no conceivable remedy could be afforded the

petitioner to vindicate such a declaration, the judgment

would not terminate the controversy.

The perception that no remedy could be afforded because of

violations of a statute's requirement that criteria be followed

and because of a violation of a separate open meeting requirement

may be attributed to the fact that neither statute had any

provision for rendering the result of acts in violation void.

Voidability and forfeiture were later added to

the open meeting law.

Outagamie County did not announce that the statutory law does not

bind the legislature in its law-making procedures.

Sec. 66.77, Stats., itself authorizes actions to be brought

against members of any governmental body who knowingly violate

that section and represents the expressed will

of the legislature in this respect.

This court is being asked to construe a statute, not to interfere

with the functions or the separate power of the

legislative branch of government.

In construing the statutes as a whole, it is necessary to hold

that the legislature intended section 66.77 to apply to

legislators and legislative committees, subject

to expressed statutory exceptions.

The creation of section 66.77(4)(g) and (h) would be superfluous

if the legislators were not bound by the open meeting law.


                                                         Page 699


Rules of construction dictate against such interpretation.

This rationale is not contradictory of the recent decision

of this court in State ex rel. Lynch v. Dancey,

ante, p. 287, 238 N.W.2d 81.

In that case, the open meeting law was found inapplicable because

of its conflict with the superintending power of this court as

expressed in art. VII, section 3 of the Wisconsin Constitution.

Although duly enacted legislation is ordinarily effective as a

constraint or guide on all branches of government, it cannot

overpower the express or implied applications of that more

fundamental law, the state constitution.

In summation, section 66.77, Stats., was clearly applicable

to the joint finance committee.

The committee is required to conduct its meetings under the open

session requirements, including public notice and advance

announcement of closed sessions, when it is formally

constituted and thereby possesses the vitality to

act effectually on governmental business.

As members of a governmental body, the committee members are

potentially subject to the law when they meet and engage

in the broad range of activity that can be termed

the conduct of governmental affairs.

When the circumstances of an informal gathering are such that a

quorum of a governmental body is present and business within the

ambit of this body is discussed, as in the March 11, 1975

conference of the committee Democrats, then the law applies.

When the same activity takes place in a conference of exactly

half the members of a governmental body, as in the April 24, 1975

gathering of the committee assembly Democrats,

the law also applies.

Failure to meet open session requirements results in the

presumption that conferences such as these were intended or

designed to avoid the law that is applicable to the formal

meetings of the governmental body.

Forfeitures could result.


                                                         Page 700


Participants at these conferences may in fact demonstrate

that no evasion of section 66.77, Stats., was intended.

Emergency circumstances may be a valid justification.

The law itself provides for private "partisan caucuses"

of members of the state legislature.

Since that body is frankly political, this exception apparently

was allowed to accommodate the partisan function even when

circumstances otherwise dictate that the law is being evaded;

the distinction between the conduct of governmental affairs

and partisan views of the same is impossible of definition

in participatory, political government.

The stipulation by the parties admits that the two meetings

involved here were attended solely by committee members

of one political party.

It also impliedly acknowledges the interrelation

of politics and government.

Since no restriction was placed on the realm of matters that the

private partisan caucuses could address, the two conferences

cannot be found to be in evasion of the law.

We conclude that a declaratory judgment may be entered, but

caution against such use of the device by prosecutors.

We construe the open meeting law and its exception to apply,

through use of legislative intent and strict construction.

The case is accepted, as not contrary to separation of powers,

in that it concerns application of the forfeiture penalty to

members of a body, not to the branch of government itself.

By the Court. Ä It is declared and adjudged that section 66.77,

Stats., is applicable to legislative proceedings subject to

certain expressed statutory exceptions.

It is further adjudged that the respondents and necessary parties

respectively were not in violation of said statute

on March 11, 1975 and April 24, 1975.

DAY, J., took no part.

WILKIE, C. J. (concurring).

The open meetings law expressly declares that it is the public

policy of Wisconsin 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

affairs and the transaction of governmental business."[fn1]


                                                         Page 701


The prevention of secrecy in government is thus

a matter of basic public interest in Wisconsin.

Under these circumstances I think that the open meetings law

should be liberally construed so as to effectuate

this broad public policy.

This is the position taken by the Florida courts, which have held

that that state's "Sunshine Law" was enacted for the benefit of

the public and should be construed most favorably to the public

despite its penal nature.[fn2]

This is also the position taken by Sutherland, who recommends

that the rule of strict construction should be relaxed

when the public and social interests in penal

legislation are very great, as they are here.

A more liberal construction is especially appropriate where,

as here, the maximum possible penalty does not threaten

the personal liberty of offenders, but at most

exposes them to a forfeiture of $200.[fn3]

Nevertheless, even construing this statute liberally, I agree

with the majority that, on the basis of the facts stipulated by

both the respondents and the district attorney, the conclusion

must be that the open meetings law in its present form did not

require these two meetings to be open.

This court cannot create open government by fiat, however

desirable a public policy open government may be.

This court is limited to interpreting and declaring the intent

of the legislature when it enacted the open meetings law.

It is clear from the stipulated facts that the legislature, in

enacting the present open meetings law, with its various

exceptions and qualifications, intended to permit

conferences like the two in question here.


                                                         Page 702


I have been authorized to state that Mr. Justice BEILFUSS

joins in this concurrence.

[fn1] Sec.

66.77(1), Stats.

[fn2] Board of Public Instruction of Broward County v. Doran

      (Fla. 1969), 224 So.2d 693.

[fn3] Sutherland, Statutes and Statutory Construction

      (4th ed. 1972), sec. 59.05.

ROBERT W. HANSEN, J. (dissenting).

This original action for declaratory relief challenges the

legality of two closed-to-the-public meetings held by members of

the joint committee on finance of the state legislature.

At the first such meeting, a full quorum of the committee was


At the second, one-half of the committee members were present,

a "negative quorum" sufficient to block committee action.

At both meetings, all committee members who were invited

and attended were members of one political party.

Both closed meetings were called to discuss matters that were

to come before the full committee in its public sessions.

Where those participating in a closed-to-the-public session of a

committee of the legislature are not members of a single

political party, the court majority holds such secret sessions to

violate the open meeting statute.[fn1]

The secret meetings convened to discuss or decide matters to come

before the committee or body in a public session are, the

majority holds, "conferences,"[fn2] which, if "designed to avoid"

the open meeting law, are illegal under section 66.77.

[fn3]  The majority holds such closed session or conference to be

       a violation of the open meeting law if

      (1) the full membership is present;

      (2) a quorum is present; or

      (3) one-half the membership, a "negative quorum,"

          is present.


                                                         Page 703


In each of the situations listed, the majority holds that

the issue becomes whether or not the secret meeting

was "designed to avoid" the requirements of

the open meeting law.

The writer agrees with these conclusions of the court majority,

but would add that a secret session or conference of less

than one-half of the members of a legislative committee

or governmental body ought also be held to be illegal

where there is present an intent to avoid the statute,

plus the ability to control or determine a decision to

be made at the public session of the committee or body. [fn4]

The conference of less than half of the members or of a

minority group in the body may not qualify as a "meeting"

of the body,[fn5] but it can constitute a deliberate

conspiring to violate the open meeting requirement,

and that of itself is a violation of law.[fn6]

Given an "intent to avoid" and ability to influence or control

decision-making, the writer would include in the

proscription meetings of less-than-half of

the membership of a governmental body.

However, the majority holds that, as to committees of the

legislature, where those invited to and participating in

a closed committee meeting belong to one political party,

their secret session becomes a "partisan caucus,"

exempted from the antisecrecy requirements by

the open meeting law.[fn7]


                                                         Page 704


The state legislature has set forth exceptions, eight of them, to

its general mandate that:  "No discussion of any matter shall be

held and no action of any kind, formal or informal, shall be

introduced, deliberated upon, or adopted by a governmental body

in a closed session. . . ."[fn8]

The exception relied upon to validate the two secret sessions,

here challenged, is subsection (g) exempting "Partisan caucuses

of members of the state legislature."

The majority opinion finds the two secret or closed meetings,

here challenged, to have been such "partisan caucuses,"

and as such exempted from the requirements of the

state open meeting law. The writer disagrees.

The majority holds that party members on a committee of the

legislature may meet in advance and in secret to decide

what is to be done at a subsequent public meeting

of such legislative committee.

At the same time, it holds that such a quorum of such committee,

if involving members of both political parties, may not meet to

discuss or decide in secret what the committee is to do, at least

not "with intent to avoid the [open meeting] section."

Thus the caveat is limited to insisting that no one from another

party or an independent be invited to the closed meeting.

In reaching this somewhat startling result, the majority limits

itself to construing the open meeting law itself.

The writer would go further to include the constitutional mandate

in this state against secrecy in the carrying out of its

legislative function by the state legislature, to wit:

"Section 10.

Each house shall keep a journal of its proceedings and publish

the same, except such parts as require secrecy.

The doors of each house shall be kept open except when

the public welfare shall require secrecy.

Neither house shall, without the consent of the other, adjourn

for more than three. days."[fn9]  (Emphasis supplied.)


                                                         Page 705


Keeping the doors open does not mean leaving them ajar only when

roll calls are taken and votes are recorded.

Keeping the doors open requires their not being locked at any

stage of the lawmaking process "except when the public welfare

shall require secrecy."  Keeping the doors open refers to

committee sessions, as well as sessions of the full senate

or assembly, and includes the debating and deciding on

legislation as well as the voting and recording of votes.

The majority opinion notes that some states do not include

the legislature in their open meeting law.

The state constitution in our state makes such self-exclusion

from an antisecrecy law meaningless.

The majority states that our legislature has made the exceptions

and ". . . drafted them to its own purposes."

The state constitution does provide that:  "Each house may

determine the rules of its own proceedings,"[fn10] but that

right is subject to and limited in our state by the

constitutional mandate that doors of the legislature

be kept open during the lawmaking process.

It is not correct to assume or imply that, if our state

legislature had exempted itself from the provisions of its open

meeting law, it could conduct its lawmaking function in secret.

A constitutional mandate does not need legislative

reenactment to remain operable.

As to proceedings of the legislature, in this state, public

proceedings are constitutionally required ". . . except

when the public welfare shall require secrecy."[fn11]

Exemptions from such constitutional insistence upon openness

cannot be legislatively created or judicially upheld except

when and where required by the public welfare.

This applies to legislative deliberations as well as

actions of the legislature, for both are integral

parts of the legislative process. [fn12]


                                                         Page 706


As the writer views the matter, the answer as to a possible

constitutional infirmity as to the entire exemption of "partisan

caucuses" from the requirement of openness depends upon the

definition given to the word "caucus."

An accepted and widely used dictionary defines the word thusly: 

"[A] closed meeting of a group of persons belonging to the same

political party or faction [usually] to select candidates or to

decide on policy."[fn13]

Even this broad definition would not seem to fit the situation

of the two challenged meetings here before us.

Here the parties have stipulated that the cochairman of the joint

committee on finance "assigned subject areas of the budget" to

individual members and "made them responsible for studying such

areas," with the secret sessions held for such individual members

to report "their findings and recommendations."

Unless form is to replace substance, whatever the purpose stated

or the label given such delegation, it appears clear that the

action of the particular committee is the target, not any

matter of party organization or general party policy.

Seven or eleven members of one party on a committee

could not be determining the party policy for their

party colleagues in the senate or assembly.

They would be discussing and deciding only what

a particular committee would do.

Committee action, not general party policy or

organization, is involved.


                                                         Page 707


The question of construction becomes one of the legislative

intent in creating this exemption for "partisan caucuses of

members of the legislature."

The intent of the legislature is a controlling factor in the

interpretation of a statute.[fn14]

The writer would find the legislative intent and construe

the statutory exemption to refer solely to the traditional

and institutionalized party caucuses composed of all members

of a political party in the assembly, in the state senate

or, on occasion, in the two houses.

The rules of senate and assembly refer to no other

type of caucus.

Even under the dictionary definition, it is only such caucuses of

all party members in one branch of the legislature that can

"select candidates or . . . decide on policy," meaning the

policy of the party members in senate or assembly as to

a matter pending before the legislature.

The basis for preferring and adopting such strict construction

of the word "caucus" is that it alone furthers the general

purpose of the open meeting statute and best stays

within the constitutional limit.

If three members of a five person legislative committee can,

assuming they belong to the same party, meet in secret to

determine what the committee is to do when it meets in

public, the exemption as to a "partisan caucus" is

broadened to where public business can be

transacted in secrecy.

This is contrary to the constitutional mandate

and purpose of the statute.

In determining legislative intent, consideration is to be given

to the object sought to be established by the enactment.[fn15]

The majority applies the rule of strict construction

to the statute requiring open meetings.

The writer would apply the rule of strict construction

to the exemption.


                                                         Page 708


Strict construction ought here be applied

against secrecy, not for it.

Such strict construction of the word "caucus" is here suggested

by the declaration of policy in the open meeting law that is an

aid and guide to construction of the rest of the statute.[fn16]

It is indicated by the declaration of policy that our

representative form of government is "dependent upon an informed


It is further indicated by the legislative declaration of the

public policy as entitling the public "to the fullest and most

complete information regarding the affairs of government as is

compatible with the conduct of governmental affairs."[fn18]

It is indicated by the constitutional mandate that doors of

the legislature be kept open "except where the public welfare

requires secrecy."[fn19] The writer would construe the

reference to "partisan caucuses" in the open meeting

law to apply only to caucuses of all party members

in either the assembly or state senate or both.

The writer would conclude that both the meetings of members of

the legislature's joint committee on finances here challenged

were not within the exemption of section 66.77(4)(g), Stats.,

relating to "partisan caucuses," and were illegal under the

requirement of open meetings of section 66.77(3), but only

if it were established that the two conferences

were "designed to avoid this section."

Whether the two meetings here challenged were thus

"designed to avoid" the requirements of the open meeting law

cannot easily be discerned or determined on this record.


                                                         Page 709


The record before us consists of affidavits which do not clearly

establish a "design to avoid" the provisions of section 66.77.

That issue as to design or intent here is largely a matter of

drawing inferences from facts alleged or stipulated to.

The record here appears to permit the drawing of

different or conflicting inferences.

This court, on this record at least without the taking of

additional testimony as to material facts, ought not,

and, as the writer sees it, cannot here determine

the issue of design or intent.

Therefore, I would dismiss this complaint without

prejudice, leaving the parties to their options

and remedies at the trial court level.

[fn1]     Section 66.77, Stats.

[fn2]     The majority states:

               If members of a governmental body intentionally

               gather to discuss business without undertaking

               a formal meeting, they can be described as in

               a conference.

[fn3]     The majority continues:

               The statute does not let such possible gatherings

               exist as an evasion of the law. . . . If such

               intention [to avoid] is discerned, it may

               thereupon be designated a 'meeting' under

               the statute for analysis of its exact

               noncompliance with open session


               See: Section 66.77(1), Stats.

[fn4]     The majority concedes:

               It is certainly possible that the appearance of a

               quorum could be avoided by separate meetings of

               two or more groups, each less than quorum size,

               who agree through mutual representatives to act

               and vote uniformly, or by a decision by a group

               of less than quorum size which has the tacit

               agreement and acquiescence of other members

               sufficient to reach a quorum.

[fn5]     See: Section 66.77(2)(b), Stats., providing:

               "Meeting" means the convening of a governmental

               body in a session such that the body is vested

               with authority, power, duties or responsibilities

               not vested in the individual members."

[fn6]     See:  section 939.31, Stats.

[fn7]     Section 66.77(4)(g), Stats.

[fn8]     Section 66.77(3), Stats.

[fn9]     Art. IV, section 10, Wisconsin Constitution.

[fn10]    Art. IV, section 8, Wisconsin Constitution.

[fn11]    Art. IV, section 10, Wisconsin Constitution.

[fn12]    See: 56 Am. Jur. 2d, Municipal Corporations, p. 215,

          section 161, stating:

              ". . . [U]nder a statute providing that actions of

               local legislative bodies be taken openly and that

               their deliberations be conducted openly, it has

               been held that meetings of a county board of

               supervisors must be held openly, both for

               deliberation as well as action, since deliberation

               and action are recognized as dual components of

               the collective decision-making process and the

               meeting cannot be split off and confined to one

               component only so far as the right of the public

               to attend is concerned."

[fn13]    Webster's, Seventh New Collegiate Dictionary, based on

          Webster's, Third New International Dictionary (1967),

          published by G. & C. Merriam Company.

[fn14]    See: Safe Way Motor Coach Co. v. Two Rivers (1949),

               256 Wis. 35, 39 N.W.2d 847.

[fn15]    Loof v. Rural Mut. Casualty Ins. Co. (1961),

          14 Wis.2d 512, 111 N.W.2d 583.

[fn16]    Section 66.77(1), Stats., providing:

               (1)  In recognition of the fact that a

                    representative government of the

                    American type is dependent upon an

                    informed electorate, it is declared

                    to be the policy of this state 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 affairs and

                    the transaction of governmental business. . "

[fn17]    Id.

[fn18]    Id.

[fn19]    Art. IV, Section 10, Wisconsin Constitution.

State ex rel. LYNCH v. CONTA,

71 Wis.2d 662 (1976)

239 N.W.2d 313

Parental Rights to Sueann A.M.,

176 Wis.2d 673 (1993)

500 N.W.2d 649

State ex rel. BADKE v. Greendale Villiage Board

173 Wis.2d 553 (1993)

494 N.W.2d 408

Milwaukee Board of School Directors v. WERC,

163 Wis.2d 739 (Ct.App. 1991)

472 N.W.2d 553

State ex rel. Chiarkas v. Skow,

160 Wis.2d 123 (1991)

465 N.W.2d 625

In Matter of Condition of S.Y.,

156 Wis.2d 317 (Ct.App. 1990)

457 N.W.2d 326

FIEDLER v. Wisconsin Senate,

155 Wis.2d 94 (1990)

454 N.W.2d 770

Beloit Corp. v. LIRC,

152 Wis.2d 579 (Ct.App. 1989)

449 N.W.2d 299


139 Wis.2d 397 (1987)

407 N.W.2d 533

Stage ex rel. Newspapers v. SHOWERS,

135 Wis.2d 77 (1987)

398 N.W.2d 154

State v. VONESH,

135 Wis.2d 477 (Ct.App. 1986)

400 N.W.2d 508

Matter of: GOODGER v. City of Delavan,

134 Wis.2d 348 (Ct.App. 1986)

396 N.W.2d 778

State ex rel. Newspapers v. Showers,

128 Wis.2d 152 (Ct.App. 1985)

382 N.W.2d 60

Town of Mt. Pleasant v. WERLEIN,

119 Wis.2d 90 (Ct.App. 1984)

349 N.W.2d 102


114 Wis.2d 237 (Ct.App. 1983)

338 N.W.2d 304

State ex rel. La Follette v. STITT,

114 Wis.2d 358 (1983)

338 N.W.2d 684

Reserve Life Insurance Co. v. La Follette,

108 Wis.2d 637 (Ct.App. 1982)

323 N.W.2d 173

State ex rel. BRENNAN v. Branch 24 of Circuit Court

104 Wis.2d 72 (Ct.App. 1981)

310 N.W.2d 629

JANKOWSKI v. Milwaukee County,

104 Wis.2d 431 (1981)

312 N.W.2d 45

Fred RUEPING Leather Co. v. City, Fond Du Lac,

99 Wis.2d 1 (Ct.App. 1980)

298 N.W.2d 227

State v. SWANSON,

92 Wis.2d 310 (1979)

284 N.W.2d 655

Wisconsin Invironmental Decade v. PSC

84 Wis.2d 504 (1978)

267 N.W.2d 609

State ex rel. Strykowski v. WILKIE,

81 Wis.2d 491 (1977)

261 N.W.2d 434


77 Wis.2d 422 (1977)

253 N.W.2d 335