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.


 
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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.


 
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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.


 
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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."


 
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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.


 
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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.


 
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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]


 
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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.


 
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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.


 
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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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