SCHOPPER v. GEHRING,
210 Wis.2d 208 (Ct.App. 1997)
565 N.W.2d 187
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ALLAN D. SCHOPPER, Plaintiff-Appellant,
v.
SHERIFF BRAD GEHRING, Defendant-Respondent.
---------------------------------------------
COURT OF APPEALS OF WISCONSIN. #
96-2782.
Briefed 4 March 1997 - Decided 15
April 1997.
APPEAL from a judgment of the
circuit court for Outagamie County:
HAROLD V. FROEHLICH, Judge.
Affirmed.
For the plaintiff-appellant the
cause was
submitted on the brief of Gary
J. Schmidt of
Grand Kaukaulin Legal Services,
Kaukauna, and
a reply brief by Allan Schopper.
For the defendant-respondent the
cause was
submitted on the brief of Peter
M. Farb of
Gabert, Williams & Farb, Appleton.
Before LaRocque, Myse and Mangerson
[1], JJ.
[1] Circuit Judge Gary L. Carlson
is sitting
by special assignment pursuant
to the
Judicial Exchange Program.
MYSE, J.
---------------------------------------------
Allan D. Schopper appeals an order
dismissing
his complaint filed under the open
records
law seeking to obtain a three-hour
interval
of 911 calls recorded by the Outagamie
County
Sheriff's Department on November
29, 1995.
Schopper contends that the trial
court erred
by granting summary judgment dismissing
his
complaint based upon a denial of
his open
records request because he failed
to receive
adequate notice of the hearing
on the motions
to dismiss and the trial court's
determination that the request
was
impermissibly broad was erroneous.
We conclude that Schopper received
adequate
notice of the motion hearing and
the court
correctly determined that Schopper's
open
records request lacked a reasonable
limitation as to the subject and
length
of time for the records requested.
Allan Schopper was arrested for
a traffic
violation on November 29, 1995.
Schopper requested a copy of the
911 calls
received by the Outagamie County
Sheriff's
Department for the night of Schopper's
arrest.
This request was made to the Outagamie
County
Corporation Counsel, Joseph Guidote.
A second written request for the
information
was filed at the office of the
Outagamie
County Sheriff's Department after
the
corporation counsel failed to respond
to the request filed with him.
Because 911 calls are recorded on
sixty
channels, the sheriff responded
that
Schopper's request was too broad
and that he
would have to narrow or clarify
the scope of
his request before it could be
acted upon.
A letter requesting Schopper narrow
his
request suggested that he identify
specific
times of the transmissions he was
seeking
or that he identify a specific
incident
to which the transmissions would
relate.
Despite the letter from the sheriff's
department that Schopper limit
or clarify his
request, no modification of the
initially
filed request was ever received
by the
sheriff's department.
When the sheriff's department failed
to
provide the requested information,
Schopper
filed a civil suit seeking an order
compelling the release of the information
under the open records law.
On July 11, 1996, the court sent
notice to
Schopper that it would hear a motion
in his
case at 8:30 a.m. on July 25, 1996.
Schopper does not deny receiving
the court's
notice and admits receiving notice
from an
opposing attorney for a second
motion to
dismiss on July 19.
Although Schopper appeared at the
time
scheduled for hearing, his counsel
did not.
The trial court determined that
the
request was overbroad and ordered
dismissal
of the open records lawsuit.
Schopper first contends that the
trial court
erred by dismissing his open records
claim.
This issue involves an application
of
undisputed facts to the provisions
of a statute.
Accordingly, we review this issue
without
deference to the trial court's
determination.
State v. Keith,
175 Wis.2d 75, 78,
498 N.W.2d 865, 866 (Ct. App. 1993).
Schopper's request included
"a certain dispatch tape dated 11/29/95
to
contain the actual audio spoken
and times of
dispatches in order uncut or edited
in any
way from 1:00 a.m. to 4:00 a.m.
on 11/29/95."
The open records law provides that
"a request
for a record without a reasonable
limitation
as to subject matter or length
of time
represented by the record does
not
constitute a sufficient request."
Section 19.35(1)(h), Stats.
Schopper requested three hours of
tape on
each of the sheriff's department's
sixty
911 channels which constituted
180 hours of audiotape.
Schopper also requested a transcript
to be
prepared for each of the tapes
and a log
identifying the time of each transmission.
Applying the provisions of Section
19.35(1)(h), the trial court determined
that
the request was unreasonably burdensome
as
well as overbroad and ordered the
complaint
dismissed.
We start our analysis of this issue
by noting
the parties do not raise the question
whether
the 911 tapes recorded by the sheriff's
department are subject to an open
records
request.
Because the issue was not raised,
we do not address it.
The evidence is undisputed that
911 tapes in
Outagamie County are made from
sixty
channels of transmissions.
It is also undisputed that Schopper
requested
a log of each transmission detailing
the time
and the order in which the transmissions
were
received and three hours of 911
transmissions
received during the hours of 1
to 4 a.m. on
November 29, 1995.
This request necessarily requires
a
transcription of 180 hours of tape,
preparation of the requested log
and the
copying of 180 hours of tape.
Despite the sheriff's department
request that
the request be limited to either
a specific
time frame or a specific event,
Schopper
declined to modify his request
for three
hours of unaltered tape on the
sixty channels
that were in the sheriff's department's
possession.
We agree that to require a custodian
of a
record to engage in the copying
180 hours of
tape and the creation of a log
to identify
the time and the order in which
the
transmissions were received represent
a
burden far beyond that which may
reasonably
be required of a custodian of a
public
record.
[A]
request for a record
without a
reasonable limitation
as to subject
matter or length of
time represented
by the record does
not constitute a
sufficient request."
Section 19.35(1)(h), Stats.
While this state favors the opening
of public
records to public scrutiny, we
may not in
furtherance of this policy create
a system
that would so burden the records
custodian
that the normal functioning of
the office
would be severely impaired.
Here, Schopper's request was far
in excess
of that which was necessary for
his
announced purpose.
Because he could reasonably have
limited his
request but failed to do so, and
because the
request placed an unreasonable
burden upon
the custodian in preparation of
the documents
necessary to fulfill the request,
we conclude
that the court did not err by finding
the
request to be so over broad as
to be
inadequate under the open records
law.
We therefore conclude the trial
court
properly ordered the dismissal
of
Schopper's open record complaint.
Schopper next argues that he was
denied
procedural due process because
he received
inadequate notice of the scheduled
hearing
on the motion to dismiss his open
record
complaint.
Such a contention raises an issue
of
constitutional fact which is reviewed
by this
court without deference to the
trial court's
determination.
State v. Pheil,
152 Wis.2d 523, 529,
449 N.W.2d 858, 861 (Ct. App. 1989).
Due process requires notice and
"the opportunity to
be heard
at a meaningful
time and in
a meaningful
manner."
East Troy v. Town & Country
Waste Serv.,
159 Wis.2d 694, 704,
465 N.W.2d 510, 515 (Ct. App. 1990).
"As to notice, due process
focuses on
the reasonableness
of the means of
notice chosen by the
government."
Id.
We conclude that the July 11 notice
was
sufficient to adequately apprise
Schopper and
his counsel that a hearing was
to be held
before the court in regard to this
request.
Schopper does not deny receiving
notice of
motion to dismiss from the Outagamie
County
corporation counsel mailed on July
11.
Schopper also received notice of
the
nature of the hearing from another
opposing attorney on July 19.
While the notice sent by the court
did not
specifically refer to the county's
motion to
dismiss, the caption of the case,
the nature
of the notice and the fact that
motions to
dismiss were pending were sufficient
to
advise Schopper, under the circumstances,
as to the nature of the hearing.
On appeal, Schopper does not assert
that
he could have produced additional
evidence
if he had been given more time.
We conclude that under the circumstances
of this case, the information was
sufficient
to apprise Schopper that a hearing
before
the court was to be held.
Schopper also argues that the notice
he
received was legally insufficient
because it
failed to meet the time requirements
of
Section 801.15(4), Stats., which
requires
five days' notice for a hearing
on a motion.
Schopper argues that because the
notice was
received and a weekend intervened,
the
statutory provision that weekends
are not
included in the calculation of
time is
applicable and that the notice
was received
less than five days in advance.
[2]
Schopper also argues that the motion
to
dismiss was really one for summary
judgment.
Schopper's notice argument must
fail for several reasons.
First, the court and not a party
scheduled the motion to dismiss.
The trial court has the inherent
power to
control its calendar and scheduling.
Neylan v. Vorwald,
124 Wis.2d 85, 94,
368 N.W.2d 648, 653 (1985).
Trial courts have discretion to
shorten the
five-day notice requirement for
motions.
Seep v. State Personnel Comm'n,
140 Wis.2d 32, 38,
409 N.W.2d 142, 144 (Ct. App. 1987).
We, therefore, conclude that the
statutory
provisions for notice time required
for
motions do not limit the trial
court's
ability to schedule a motion so
long
as each party has a fair opportunity
to prepare and be heard.
Second, even if the statutory notice
requirements applied to a court
scheduling
a motion hearing, Schopper received
adequate notice.
The record discloses that the court
sent
Schopper a notice of hearing on
July 11
and on the same day notice of the
motion to
dismiss of the Outagamie corporation
counsel
was mailed to Schopper.
It is presumed that he received
this notice
within three-days, Section 801.15(5)(a),
Stats., and Schopper has not denied
receiving
these notices in a timely fashion.
The notices sent on July 11 scheduling
a
hearing on July 25 gave Schopper
more than
the statutory required five-day
notice.
Even if we were to disregard the
July 11
notice of the corporation counsel,
the
July 19 notice would be sufficient.
Trial courts have discretion to
shorten the
five-day notice requirement.
Seep,
140 Wis.2d at 38,
409 N.W.2d at 144.
The trial court's exercise of discretion
will
be upheld unless there was no reasonable
basis for the trial court's decision.
Wisconsin Public Serv. Corp. v.
Krist,
104 Wis.2d 381, 395,
311 N.W.2d 624, 631 (1981).
Here, the trial court reasonably
determined
that Schopper had adequate notice
of the
hearing, because the trial court
had
given Schopper fourteen-day notice
that a hearing would be held.
This is a sufficient basis for the
court
to waive the five-day notice requirement
and is a reasonable exercise of
the
trial court's discretion.
We note that the trial court converted
the motions to dismiss into motions
for summary judgment.
Trial courts have the authority
to convert
a motion to dismiss into a motion
for
summary judgment when matters outside
the pleadings are considered.
Envirologix Corp. v. City of Waukesha,
192 Wis.2d 277, 287,
531 N.W.2d 357, 362 (Ct. App. 1995);
Section 802.06(2), Stats.
One of the motions to dismiss had
an attached
affidavit from a sheriff's sergeant
and the
court looked at the entire record
when
dismissing the case.
Included in the record was an affidavit
Schopper had prepared for the hearing.
Although the time requirements for
notice are
different for motions to dismiss
than for
motions for summary judgment, this
motion was
originally noticed as a motion
to dismiss and
the trial court correctly exercised
its
discretion by converting the motion
to
dismiss into one for summary judgment.
Schopper raises a third issue in
regard
to the ability of the corporation
counsel
to participate in the hearing and
to
move for summary judgment.
Schopper contends that the corporation
counsel was a necessary witness
because
the original request for the public
records
was filed with him and therefore
he should
not have been allowed to participate
as
counsel for any of the parties.
This matter was not raised
to the trial court.
Issues not raised before the trial
court
will not be considered on appeal.
Wirth v. Ehly,
93 Wis.2d 433, 443-44,
287 N.W.2d 140, 145-56 (1980).
Therefore, we will not
consider this contention.
We conclude that Schopper received
adequate
notice of the hearing and that
the trial
court correctly determined that
Schopper's
open records request was overbroad.
By the Court. Judgment
affirmed.
[2]
In computing any period of time
prescribed
or allowed by Chapters 801 to 847,
by any
other statute governing actions
and special
proceedings, or by order of court,
the day
of the act, event or default from
which the
designated period of time begins
to run
shall not be included.
The last day of the period so computed
shall
be included, unless it is a day
the clerk of
courts office is closed.
When the period of time prescribed
or allowed
is less than 11 days, Saturdays,
Sundays and
holidays shall be excluded in the
computation.
Section 801.15(1)(b), Stats.
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