JOURNAL/SENTINEL, INC. v. PLEVA, 155 Wis.2d 704 (1990) 456 N.W.2d 359
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STATE of Wisconsin EX REL.,
JOURNAL/SENTINEL,INC.,
a Wisconsin corporation, and



Bruce Gill, Plaintiffs-Appellants,



v.



Ronald E. PLEVA,

James A. McCann,

Lyle A. Stern,

William R. Drew,

Frederick Stratton,

James L. Roberts,

G. Frederick Kasten, Jr., and

Milwaukee World Festival, Inc.,



Defendants-Respondents-Petitioners.[fn]






Supreme Court No. 88-1808. Argued April 24, 1990. Decided June 20, 1990. [fn] Motion for reconsideration denied. (Affirming 151 Wis.2d 608, 445 N.W.2d 689 (Ct. App. 1989).)
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REVIEW of a decision of the Court of Appeals. Affirmed.



For the defendant-respondent-petitioner there were briefs by

L.C. Hammond, Jr., Jeffrey O. Davis and Quarles & Brady,

Milwaukee and oral argument by Mr. Hammond.



For the plaintiffs-appellants there was a brief by

Susan J. Marguet, Michael J. Cohen and Meissner & Tierney, S.C.,

Milwaukee and oral argument by Ms. Marguet.
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Amicus curiae brief was filed by Linda M. Clifford and

LaFollette & Sinykin, Madison, for

Wisconsin Newspaper Association.



HEFFERNAN, CHIEF JUSTICE.



This is a review of a court of appeals decision which reversed

the judgment of the trial court, Patrick J. Madden,

Circuit Judge for Milwaukee county, dismissing

plaintiffs' action for declaratory judgment.



State of Wisconsin ex rel. Journal/Sentinel, Inc., v. Pleva,

151 Wis.2d 608, 445 N.W.2d 689 (Ct. App. 1989).



The issue presented is whether the public may bring an action to

enforce a provision in a lease between the City of Milwaukee and

Milwaukee World Festival, Inc. (Festival), a private nonprofit

corporation charged with organizing public festivals such as

Summerfest, which requires all Festival meetings to be

held in compliance with the Open Meetings Law.



We affirm the decision of the court of appeals and hold as a

matter of law Ä dictated by the clearly stated public policies of

freedom of contract and the right of the public to have access to

public meetings Ä that, under the facts of this case, the public

has standing to bring an action for enforcement of the Open

Meetings provision in the lease between the City of Milwaukee and

Festival, the private sponsor of Summerfest.



The facts are these:  In December 1985, the City of Milwaukee

leased lakefront property to Festival, a nonprofit corporation

which organizes events such as Summerfest and several ethnic

festivals on what is commonly known as the Summerfest

grounds in Milwaukee.



This property had earlier been conveyed to the City

from the state by statute (Chapter 151, Laws of 1929,

and Chapter 76, Laws of 1973).



These statutes provide that the land will revert to the state if

it is not used in a manner consistent with the public trust.
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The lease contains a provision which requires Festival

and its board of directors to comply with

the Open Meetings Law

 

(Subchapter IV, Chapter 19, Stats.).



The lease, signed on December 31, 1985, required Festival

to amend its bylaws in a manner consistent with

a letter dated December 20, 1985.



The lease provides:



          FESTIVAL shall, at its 1986 annual meeting,

          amend its By-Laws in a manner consistent with

          the letter attached hereto as Exhibit "F" and

          shall maintain such amendments in full force

          and effect during the term of this Agreement.



The December 20, 1985 letter, incorporated by reference

into the lease, was written by John W. Schmitt, president



and chairman of Festival, to John Kalwitz, then-president

of the City's Common Council.



It provides for the restructuring of the Board of Directors of

Festival to include seven public officials, including the Mayor,

the Commissioner of City Development, the Commissioner of Public

Works, President of the Common Council, an alderman, the City

Comptroller, and the County Executive.



In addition, the letter states that the Board

will modify its bylaws to provide



          "that all of the meetings of the Board and

           its committees will be conducted openly

           consistent with the dictates of the

           State of Wisconsin open meeting law."



At the 1986 annual meeting, Festival

amended its bylaws to provide:



          The Board and all meetings of committees will

          be held by complying with the procedures

          specified in the public meeting law of the

          State of Wisconsin, currently Wis. Stats.

          Section 19.81.



          Public notice of open meetings shall be given

          pursuant to Wis. Stats. Section 19.84.



Bruce Gill, a reporter for the Milwaukee Sentinel,

sought to cover a meeting held on December 7, 1987

by the Festival finance committee.
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The committee voted to close the meeting, claiming that it was

discussing its operating budget and in conformity with Section

19.85(1)(e), Stats., was allowed to do so behind closed doors.



Gill and the Journal/Sentinel (Newspaper) brought an action for

declaratory relief under Section 806.04, Stats., asserting that

Festival is a governmental body under Section 19.82(1) of the

Open Meetings Law; and Newspaper, as a member of the public,

has standing as a relator under Section 19.97(4), Stats.,

to bring an action for open meetings violations.



In the alternative, they claim that Newspaper is a third party

beneficiary of the contract between the City and Festival, and

has standing to bring an action for a breach of the covenant

requiring compliance with the Open Meetings Law.





Festival filed a motion to dismiss, asserting that it was not

a governmental body subject to the Open Meetings Law,

and that the public was not a third-party beneficiary

of the lease between the City and Festival.



On these grounds, Festival asked that the plaintiffs' complaint

be dismissed for failure to state a claim upon which relief

could be granted and because plaintiffs lacked standing to sue

for breach of a contract to which they were not a party.



The circuit judge dismissed the plaintiffs' complaint,

concluding that Festival was not a governmental body,

subject to the Open Meetings Law.



In addition, he held that, because the parties to the lease did

not expressly include the enforcement provisions of the Open

Meetings Law, secs. 19.96 and 19.97, Stats., it was clear

that they did not intend to provide an actionable right

in the public to enforce the Open Meetings provision.



Moreover, he stated that a municipality could not by contract

make statutory punitive sanctions applicable to a contracting

party, absent specific statutory authority.
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Finally, the circuit judge concluded that, because the

basic purpose of the lease between the City and Festival

was to provide festivals, and the Open Meetings provision

was incidental to that purpose, the contracting parties did not

intend to make the public a third-party beneficiary of the lease.



Plaintiffs appealed the circuit court's decision.



The court of appeals reversed the circuit court's judgment.



State of Wisconsin ex rel. Journal/Sentinel, Inc., v. Pleva,

151 Wis.2d 608,

445 N.W.2d 689 (Ct. App. 1989).



The court of appeals held that the lease was entered into

directly and primarily for the benefit of a third party Ä

the public Ä and, therefore, the public has standing

to sue for breach of the contract.



Defendants petitioned this court for review

of the court of appeals decision.



For the reasons set forth in this opinion,

we affirm the court of appeals decision.



Generally, a contract between two persons is not

binding on persons who are not in privity to it.



Prinsen v. Russos,

194 Wis. 142, 145,

215 N.W. 905 (1927); and



Udelhofen v. John Hancock Mut. Life Ins. Co.,

128 Wis.2d 216, 220,

381 N.W.2d 579 (Ct. App. 1985).



Also, as a general rule, parties to a contract and

third-party beneficiaries of a contract are the

only persons who can sue under a contract.



Abramowski v. Wm. Kilps Sons Realty, Inc.,

 80 Wis.2d 468, 472,

259 N.W.2d 306 (1977);



and



Lamb v. Manning,

145 Wis.2d 619, 626,

427 N.W.2d 437 (Ct. App. 1988).



Defendants assert that plaintiffs cannot sue for enforcement

of the Open Meetings provision in the lease unless they

establish that they have standing to sue as a

third-party beneficiary of the contract.



We conclude that it is unnecessary for us to consider

whether the public was intended to be a third-party

beneficiary of this contract.
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Because the parties expressly incorporated the Open

Meetings Law into their contract, we conclude that

it is the clear intent of the parties that the

public be allowed to seek declaratory relief

for breach of an Open Meetings provision in

the contract between the City of Milwaukee and Festival.



Where the contract expressly incorporates the entire Open

Meetings Law by reference, we honor the parties freedom to

contract, and we need not address whether Festival is a

governmental body under the Open Meetings Law or whether

the public is a third-party beneficiary of the contract.



We emphasize that the circumstances of this case are unique.



It is not often that parties to a contract expressly incorporate

a fundamentally public-oriented statutory provision such

as the Open Meetings Law into a contract.



Moreover, it is a rare contract that, as here, can be

breached by both parties at the same time, leaving

no one but the public to enforce it.





For these reasons, this court construes the clear incorporation

of the Open Meetings Law into this contract as express intent

by the parties to allow the public[fn1] to enforce compliance

with the provisions of the Open Meetings Law by the parties

to the contract.



Wisconsin courts have always recognized the importance

of protecting parties' freedom to contract.



Watts v. Watts,

137 Wis.2d 506, 521,

405 N.W.2d 305 (1987).



     "The courts protect each party to a contract by

     ensuring that the promises will be performed."



Merten v. Nathan,

108 Wis.2d 205, 211,

321 N.W.2d 173 (1982).
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Accordingly, the cornerstone of contract construction is

to ascertain the true intentions of the parties

as expressed by the contractual language.



This court has said that the purpose of judicial construction

is to determine what the parties contracted to do as

evidenced by the language they saw fit to use.



Koenings v. Joseph Schlitz Brewing Co., 126 Wis.2d 349, 366,

377 N.W.2d 593 (1985),



citing



Miller v. Miller,

67 Wis.2d 435, 442,

227 N.W.2d 626 (1975).



In addition, an agreement should be given a reasonable meaning so

that no part of the contract is surplusage. Id.;



and



Hastreiter v. Karau Buildings, Inc.,

57 Wis.2d 746, 748-49,

205 N.W.2d 162 (1973).



Festival claims that only the parties to the contract are

entitled to enforce the Open Meetings provision in this lease.



Festival's interpretation of the contract, however,

would render the Open Meetings provision of

the contract completely meaningless.



Several elected City officials sit on Festival's board and,

in fact, two members of the Finance Committee who voted to

close the meetings to the public were city officials.[fn2]



We conclude that the parties to the contract must have

anticipated this conflict of interest and, for that reason,

incorporated the provisions of the Open Meetings Law which



expressly provide for enforcement by the public.



This court will protect parties' freedom to contract as long as

the terms of the contract are not contrary to public policy.



Griffith v. Harris,

17 Wis.2d 255, 259,

116 N.W.2d 133 (1962);



Continental Ins. Co. v. Daily Express, Inc.,

68 Wis.2d 581,

229 N.W.2d 617 (1975).



In this case, the Open Meetings provision in

the lease is not contrary to public policy.
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To the contrary, incorporation of the Open Meetings Law

furthers the fundamental right of the public to be fully

informed regarding the conduct of government business.



See



State ex rel. Newspapers, Inc., v. Showers,

135 Wis.2d 77, 80,

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



We conclude that both of these policy concerns Ä freedom of

contract and guaranteeing public access to meetings Ä are given

due meaning by construing the contract to provide the public with

the right to enforce the Open Meetings provision on behalf of the

parties to the contract.  That is, we give full meaning to the

intent of the parties, as ascertained from the express language

of the contract, which is to insure compliance with the

provisions of the Open Meetings Law.



Without the public as an enforcer, this provision

in the lease would be meaningless surplusage.



Festival argues that the parties intended only to incorporate

the "procedures" of the Open Meetings Law, and not

the "enforcement" provisions of the statutes.



They note that Festival's bylaws, as amended, refer only

to sections 19.81 and 19.84 of the Open Meetings Law.



First of all, Section 19.81 declares the policies furthered by

the entire subchapter referred to as the Open Meetings Law, and

states at Section 19.81(4) that the subchapter shall be liberally

construed to achieve the purposes set forth by the statute.



It is Section 19.83, Stats., which specifically refers to the

"procedure" of opening meetings to the public.  Second, if the

parties intended to incorporate only sections 19.81 and 19.84

(requirements for giving notice), then the exemptions to the

pen Meetings Law, which allow closed meetings in some

circumstances, would be unavailable to the

parties to this contract.



Ironically, Festival relies on Section 19.85 for its

exemption from the general requirement that they

hold their meetings open to the public.



The only reasonable interpretation of this contract, thus,

is to conclude that the parties intended to incorporate

the entire Open Meetings provision in their lease,

including the limited rights of the public to

enforce compliance with its provisions.
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We note that the enforcement provisions of the

Open Meetings Law are indeed limited.



While a court may award costs and attorneys fees,

any forfeitures recovered must be paid to the state.



In this case, the relators seek not a forfeiture, but

only a declaratory judgment that defendants violated

Sections 19.81 and 19.83, Stats. and costs and

attorneys fees pursuant to Section 19.97(4), Stats.





For the reasons set forth in this opinion the

decision of the court of appeals is affirmed.



By the Court. Ä Decision affirmed.



[fn1]     This court recognizes that, "[a]lthough the

          media does not have a privileged position, if

          the media is denied access to the affairs of

          government, the public for all practical

          purposes is denied access as well."



          State ex rel. Newspapers, Inc., v. Showers,

          135 Wis.2d 77, 81,

          398 N.W.2d 154 (1987).



[fn2]     We do not intend to give any opinion whether

          there has been a violation of the Open

          Meetings Law as adopted in the contract

          in this case, as the only issue before

          us is whether the public has standing

          to bring this action.






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RELATED CASE LAW:

RELATED CASE LAW:

GORTON v. HOSTAK, HENZL & BICHLER, S.C.,
217 Wis.2d 493 (1998)
577 N.W.2d 617

WHIRLPOOL CORP. v. ZIEBERT,
197 Wis.2d 144 (1995)
539 N.W.2d 883

ZIMMERMAN v. DHSS,
169 Wis.2d 498 (Ct.App. 1992)
485 N.W.2d 290

BONG v. CERNY,
158 Wis.2d 474 (Ct.App. 1990)
463 N.W.2d 359

JOURNAL/SENTINEL, INC. v. PLEVA,
155 Wis.2d 704 (1990)
456 N.W.2d 359

===============================

UNPUBLISHED CITAIONS:

INTERLAKEN SERVICE v.
INTERLAKEN CONDOMINIUM,
Ct.App. 1998)
 
LANG v. SEIBERT,
Ct.App. 1996)

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