State ex rel. Newspapers v. SHOWERS, 77 82 87 92 97 102
78 83 88 93 98 103
135 Wis.2d 77 (1987) 79 84 89 94 99 104
80 85 90 95 100 105
398 N.W.2d 154 81 86 91 96 101
_________________________________________________________________
State of Wisconsin Ex Rel. Newspapers Inc.,
a Wisconsin corporation, and
Karen S. Rothe, Plaintiffs-Appellants-Petitioners,
v.
Dean A. SHOWERS,
Edwin J. Laszewski, Jr.,
Mary M. Wilkinson and
Theodore J. Fadrow, Defendants-Respondents.
_________________________________________________________________
Supreme Court No. 85-0471. Argued October 28, 1986.
Decided January 15, 1987.
(Reversing 128 Wis.2d 152, 382 N.W.2d 60 (Ct. App. 1985).)
REVIEW of a decision of the Court of Appeals affirming the
judgment of the Circuit Court for Milwaukee county,
Judge Robert W. Landry. Reversed. Rights declared.
For the plaintiffs-appellants-petitioners there were briefs by
Dennis L. Fisher and Meissner, Tierney, Ehlinger & Whipp, S.C.,
Milwaukee, and oral argument by Mr. Fisher.
For the defendants-respondents the cause was argued by Patrick
Halligan, senior staff attorney, with whom on the brief was
Michael J. McCabe, director of legal services,
for Milwaukee Metropolitan Sewerage District.
Amicus curiae brief was filed by Linda M. Clifford and
La Follette & Sinykin, Madison, for the
Wisconsin Newspaper Association.
BABLITCH J.
Does Wisconsin's Open Meeting Law apply when the number of
members of a governmental body present at a meeting constitute
less than half the membership of the full body?
We are asked to interpret a statute that does not specifically
answer "yes" or "no" to that question.
Some statutes of other states expressly apply only to meetings of
a quorum of the membership of a governmental body;[fn1] statutes
of other states expressly apply whenever two or more or three or
more members of a governmental body meet.[fn2]
Wisconsin's Open Meeting Law is silent on this point, thereby
leaving the interpretation of legislative intent to this court.
Newspapers Inc. and Karen S. Rothe (Newspapers Inc.) appeal,
arguing that the Open Meeting Law applies to a meeting held
by four Milwaukee Metropolitan Sewerage District Commissioners
(Commissioners) to discuss the operating budget and the capital
budget of the Milwaukee Metropolitan Sewerage Commission
(Commission).
Passage of these measurers required a two-thirds vote.
Although the four members present at the meeting did not
constitute a majority of the eleven member Commission,
these four did have the power if they so chose to determine the
parent body's course of action regarding the budget because they
could, by voting together, block the adoption of any proposed
budget of the Commission.
We hold that whenever members of a governmental body meet to
engage in government business, be it discussion, decision or
information gathering, the Open Meeting Law applies if the number
of members present are sufficient to determine the parent body's
course of action regarding the proposal discussed at the meeting.
Because the purpose of the meeting was to engage in government
business, i.e. the discussion of the capital and operating
budgets, and because the number of commissioners at the
meeting were sufficient in number to block any
proposed budgets, the Open Meeting Law applied.
At the outset, it is important to briefly
discuss the fundamental issue involved here.
The fundamental issue is the right of the public to be fully
informed regarding the conduct of government business.
It is not the right of the media in general, or a specific
newspaper or a particular reporter; it is
the right of the public to access.
The Commissioners' brief unfortunately labels the appeal by
Newspapers Inc. a "form of business litigation in aid of its
enterprise . . . [which] claims a privileged position."
We do not view this case in that manner,
and we trust the public does not either.
The public has by far the largest stake
in the litigation of these issues.
An informed public is essential to representative government.
Practical realities dictate that very few of our citizens
have the ability to be personally present during
the conduct of government business.
If we are to have an informed public, the media must
serve as the eyes and ears of that public.
Although 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.
A democratic government cannot long survive that burden.
The relevant facts are not in dispute.
Defendants are members of the
Milwaukee Metropolitan Sewerage Commission.
The Commission is the governing body of the
Milwaukee Metropolitan Sewerage District,
and is a governmental body under Section 19.82(1),
Stats., of the Open Meeting Law.
The Commission consists of eleven members, seven
from Milwaukee and four from the surrounding suburbs.
One of the duties of the Commission is to adopt an operating
budget and a capital budget.
A two-thirds vote of the total membership of the Commission
is required for passage of financing measures.
See Section 66.886(2)(a)1, Stats.
Because of this two-thirds majority voting requirement,
four commissioners can block passage of a
resolution on financing measures.
In the fall of 1983, a dispute arose between the city
and suburban commissioners regarding the method
of funding to be used for the 1984 budget.
Neither city nor suburban commissioners were able to
obtain the required two-thirds majority to pass
funding measures because the city commissioners
rejected the suburban commissioners' proposals
and vice versa.
No proposal had garnered the required eight votes.
However, tax bills were scheduled to be mailed out beginning
in early December and the Commission was under pressure to
pass a tax levy in time to include a charge for
sewerage service in those bills.
In an attempt to break the deadlock, the Commission met several
times during the week of November 28 Ä December 2.
On December 1, 1983, there was a meeting at
which the stalemate continued.
Following the meeting, the four defendants met
privately to discuss the impasse.
Two of the defendants occupied city seats, while the
other two defendants were suburban commissioners.
It is this meeting that is the subject of this appeal.
No announcement was made of the closed December 1 meeting.
The purpose of the private meeting, conceded by the defendants,
was to conduct a "sincere discussion" of differences on
the funding question, to move issues along, and to
discuss the funding issue "without political posturing."
A reporter for the Milwaukee Sentinel present at the open meeting
on December 1, petitioner Karen S. Rothe, was not allowed to
attend the closed meeting.
The next day, the Commission met again.
A tax levy resolution offered by defendant Showers and seconded
by defendant Wilkinson passed by a vote of nine to one.
On January 19, 1984, Newspapers Inc. initiated this action
in Milwaukee County Circuit Court.
Alleging that the December 1 closed meeting violated the
Open Meeting Law, Newspapers Inc. sought a declaratory
judgment that the Commissioners had violated that law.
In addition, Newspapers Inc. requested the court to void
any action taken at the meeting, to impose a fine on each
Commissioner, and to award Newspapers Inc. their costs and
attorneys' fees.
Newspapers Inc. moved for summary judgment on August 16, 1984.
They alleged that no genuine issue of material fact remained as
to the circumstances surrounding the meeting, and argued that
they were entitled to judgment as a matter of law, based
on the pleadings and excerpts from depositions.
On September 26, 1984, the Commissioners also moved for
summary judgment on the basis of the undisputed facts.
The parties were in agreement as to the time and place of
the meeting, the number attending, the subject discussed,
and the fact that the meeting was closed.
The only issue remaining Ä whether such a meeting was a violation
of the Open Meeting Law Ä required interpretation of Sections
19.81 and 19.82, Stats., and was therefore a question of law.
E.g., Bingenheimer v. DHSS, 129 Wis.2d 100, 106,
383 N.W.2d 898 (1986).
The trial court concluded that the Commissioner's meeting was not
a "meeting" as defined by the Open Meeting Law.
The trial court's decision was based on the fact that a quorum
was not present, that the four Commissioners who met lacked the
capacity to conduct business, spend money, or establish policy,
and that in this case, the right of government officials to speak
and confer privately outweighed the public's right to know how
government decisions are reached.
Newspapers Inc. appealed.
The court of appeals affirmed the trial court's decision.
State ex rel. Newspapers v. Showers, 128 Wis.2d 152 (1985).
In its opinion, the court concluded that Section 19.82(2), Stats.
was ambiguous and interpreted it to cover those meetings at which
a negative quorum, i.e. a number of members sufficient to block
action, was present.
However, continued the court, as
"the capacity to discharge corporate responsibility
must exist either directly or indirectly,"
Id. at 174, only those negative quorums with
"more than mere potential...to operate" posed
a violation of the Open Meeting Law.
Id. at 179.
Because the December 1 meeting involved two Commissioners from
each side or coalition, the court of appeals concluded that there
was nothing in the record to show that the Commissioners could
unite to determine a course of action or inaction by the entire
Commission.
The court of appeals noted that the record contained no evidence
that the Commissioners had been delegated any proxy authority.
The court of appeals concluded that because Newspapers Inc. had
failed to show that an actual negative quorum had existed,
the trial court had correctly granted the Commissioners'
motion for summary judgment.
At oral argument, Newspapers Inc. also conceded the four
Commissioners did not have the proxies of any
other member of the Commission.
Newspapers Inc. further conceded that forfeiture
is not appropriate here.
The relief they request is a declaration by this court that the
closed meeting of the four Commissioners on December 1 was
in violation of Wisconsin's Open Meeting Law.
The issues presented are 1) whether the Open Meeting Law applies
to meetings of members of a governmental body at which less than
one-half are in attendance; 2) if so, does the Open Meeting Law
apply to this particular meeting?
Resolution of the issues before this court Ä whether the
particular facts constitute a violation of the Open Meeting Law Ä
requires interpretation of Sections 19.81 and 19.82, Stats.
A question of statutory construction is a question of law.
Sacotte v. Ideal-Werk Krug & Priester, 121 Wis.2d 401, 405,
359 N.W.2d 393 (1984).
Questions of law such as statutory construction
are reviewable ab initio by this court.
Revenue Dept. v. Milwaukee Brewers, 111 Wis.2d 571, 577,
331 N.W.2d 383 (1983).
Thus, this court owes no deference to
the lower courts' resolution of the issue.
In resolving the issue of whether the Open Meeting Law applies to
meetings of less than one-half of the members of a governmental
body we first look to the statute itself, specifically the
meaning of the word "meeting."
Although that word is defined in the statute, it has been given
one interpretation by the trial court, a different interpretation
by the court of appeals, yet another interpretation by Newspapers
Inc., and still yet another interpretation by the Commissioners.
We agree with the court of appeals that Sections 19.81 and 19.82,
Stats., of the Open Meeting Law are ambiguous.
The statutes read:
19.81 Declaration of policy.
19.81(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 business.
19.81(2) To implement and ensure the public policy herein
expressed, all meetings of all state and local
governmental bodies shall be publicly held in
places reasonably accessible to members of the
public and shall be open to all citizens at all
times unless otherwise expressly provided by law.
19.81(3) In conformance with article IV, section 10, of the
constitution, which states that the doors of each
house shall remain open, except when the public
welfare requires secrecy, it is declared to be
the intent of the legislature to comply to
the fullest extent with this subchapter.
19.81(4) This subchapter shall be liberally construed to
achieve the purposes set forth in this section,
and the rule that penal statutes must be strictly
construed shall be limited to the enforcement of
forfeitures and shall not otherwise apply to
actions brought under this subchapter or to
interpretations thereof.
19.82 Definitions.
As used in this subchapter:
19.82(1) "Governmental body" means a state or local agency,
board, commission, committee, council, department
or public body corporate and politic created by
constitution, statute, ordinance, rule or order;
a governmental or quasigovernmental corporation;
or a formally constituted subunit of any of the
foregoing, but excludes any such body or committee
or subunit of such body which is formed for or
meeting for the purpose of collective bargaining
under subchapter IV or V of ch. 111.
19.82(2) "Meeting" means the convening of members of a
governmental body for the purpose of exercising
the responsibilities, authority, power or duties
delegated to or vested in the body.
If one-half or more of the members of a
governmental body are present, the meeting is
rebuttably presumed to be for the purpose of
exercising the responsibilities, authority, power
or duties delegated to or vested in the body.
The term does not include any social or chance
gathering or conference which is not intended
to avoid this subchapter.
19.82(3) "Open session" means a meeting which is held in a
place reasonably accessible to members of the
public and open to all citizens at all times.
In the case of a state governmental body, it means a meeting
which is held in a building and room thereof which enables
access by persons with functional limitations,
as defined in section 101.13(1)."
A statute, or a portion of a statute, is ambiguous if it is
capable of being understood by a reasonably well
informed person in more than one way.
Department of Revenue v. Nagle-Hart, Inc., 70 Wis.2d 224, 227,
234 N.W.2d 350 (1975).
An ambiguity can be created by the interaction of two statutes
or by the interaction of the words and structure of the statute
itself.
Morrissette v. DeZonia, 63 Wis.2d 429, 436,
217 N.W.2d 377 (1974).
The statute is ambiguous because a reasonably well informed
person could interpret "meeting" to cover the convening of as few
as two members of a governmental body to discuss issues before
the body, a meeting of one-half or more of the body's membership,
a meeting of a quorum, or a meeting limited to a gathering where
those present have the ability to exercise corporate power.
Because the Open Meeting Law is ambiguous regarding which types
of meetings are covered, this court must examine the legislative
history, purpose, and broader context of the Open Meeting Law to
interpret the statute.
The legislative history of the present Open Meeting
Law traces its roots to January 29, 1975.
It was on that date that Assembly Bill 222, otherwise known as
the 1975-77 Budget Bill, was introduced in the assembly.
The bill was immediately referred to the legislature's Joint
Committee on Finance (Committee) as provided by rule.
The Committee was comprised of fourteen members,
nine from the assembly and five from the senate.
Of the assembly members, 7 were Democrats and 2 were Republicans.
Of the five senate members, four were Democrats and one was
Republican.
The budget bill remained in the Committee until May 6, 1975.
On March 11, 1975, the eleven Democratic members
held a private meeting.
On April 24, 1975, the seven Democratic members from
the assembly held another private meeting.
The purpose of those meetings was to discuss the
budget bill which was still in their Committee.
It was conceded there was no compliance with
the Open Meeting Law.
The Open Meeting Law then in effect, Section 66.77, Stats. 1973,
the predecessor to Sections 19.81-87, provided in part:
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
business.
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.
66.77(2) In this section: . . . . .
(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. . . . .
(d) "Open session" means a meeting which is held in a
place reasonably accessible to members of the
public, which is open to all citizens at all
times, and which has received public notice.
66.77(3) Except as provided in subchapter 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 subchapter 66.77(4).
Any action taken at a meeting held in violation
of this section shall be voidable."
On August 25, 1975, the district attorney of Dane county received
a complaint from Senator Gary Goyke regarding those meetings.
He requested the district attorney to file suit.
Goyke was a Democratic member of the senate but was
not a member of the Joint Finance Committee.
The Dane county district attorney petitioned this court to render
a declaratory judgment on the question of whether the Open
Meeting Law was violated by the seven Democratic assembly
members of the Committee at these meetings.
No judgment was requested, according to his pleadings, concerning
the four Democratic senators on the Committee because they had
voluntarily ceased their participation in the meetings after the
Attorney General, Bronson LaFollette, in an informal opinion
issued on March 29, 1975, opined that the statute applied to the
March 11 meeting.[fn3]
In a decision dated March 2, 1976, State ex rel. Lynch v. Conta,
71 Wis.2d 662, 239 N.W.2d 313 (1976), this court reached a number
of conclusions regarding the Open Meeting Law, Section 66.77,
Stats., including the following:
First, it concluded that strict interpretation, as opposed to
liberal interpretation, was the appropriate standard to apply.
Second, the court concluded the obvious: that when a quorum
gathers, and its purpose is to engage in formal or informal
governmental activity, the law applied:
"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.
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 rationale 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."
Id. at 685-86.
Third, the court addressed the more difficult problem posed
when the number of members present constitute a sufficient
number to block passage of an impending bill.
Again, the court concluded that the Open Meeting Law applied:
"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."
Id. at 686.
Fourth, the court addressed at length the question of whether
the law applied to a gathering of only two members of a
governmental body who have neither the power to
pass nor the power to block proposals.
With a lengthy discussion, the court summarily
concluded that the law did not apply:
"An absolute rule requiring an open session,
simply when only two members of a body confer,
clearly is not within the statute."
Id. at 687-88.
This point, discussed at great length in Conta, Id. at 687-88,
is critical to our interpretation of the present law.
Fifth, to the extent any confusion existed regarding the
types of meetings covered by Section 19.77, Stats.,
Conta made it clear that the law covered formal
as well as informal action, i.e. discussion,
decision, and information gathering:
"When the members of a governmental body gather . . . 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."
Id. at 685-86. (Emphasis added.)
Lastly, the court addressed the problems that arise with the
so-called "walking quorums," i.e. a series of meetings
of groups less than a quorum.
Again, the court concluded that under the appropriate
circumstances, the Open Meeting Law would apply:
"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."
Id. at 687.
Notwithstanding the above conclusions, the Conta court held that
because of the then existing exception for "partisan caucuses of
members of the state legislature;" Section 66.74(4)(g), Stats.
(emphasis added), the meetings were not within the ambit of the
Open Meeting Law. Id. at 692-93. (In contrast, Section 19.87(3)
provides "No provision of this subchapter shall apply to any
partisan caucus of the senate or any partisan caucus of the
assembly, except as provided by legislative rule.")
Then Chief Justice Wilkie concurred, stating his view
that the statute should be interpreted liberally.
Justice Robert W. Hansen dissented, arguing to a point
neither reached nor decided by the majority.
He argued that when less than half the members of a governmental
body gather with the intent to avoid the law and they have the
ability to control the outcome of a decision to be made by the
parent body, the law should apply:
"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."
Id. at 703.
Such were the circumstances less than four months later
when the legislature met in Special Session and
considered a new and different Open Meeting Law.
They repealed Section 66.77, Stats. 1973,
and Sections 19.81-87, were created.
For our purposes, there were three significant changes
between the repealed law and the present law,
Sections 19.81 and 19.82, Stats.
First, Section 19.81(4) directed that the law be
liberally construed to achieve the purposes
set forth in the chapter.
Next, the definition of the word "meeting" was changed.
Under the old law, Section 66.77, Stats., "meeting"
was defined as "the convening of a governmental body.."
The new law, Section 19.82(2) defined "meeting" as a
"convening of members of a governmental body. . . ."
(Emphasis added.)
Last, Section 19.82(2), Stats., added the "purpose" language;
"convening of members of a governmental body for the
purpose of exercising the responsibilities, authority,
power or duties delegated to or vested in the body."
These four terms had appeared in Section 66.77(2)(b):
(b) "Meeting" means the convening of an governmental body
in a session such that the body is vested with
authority, power, duties or responsibilities
not vested in the individual members."
The changes from the old law to the new did not occur without
significant interaction between the houses.
Repeal of Section 66.77, Stats. 1973, was first proposed in 1975
Senate Bill 630, on September 18, 1975, one-half month before
the petition for leave to commence the original action
in Conta was filed in this court.
This bill contained a modified definition of the term "meeting,"
limiting its application to meetings of a quorum or more:
"Meeting" means the convening of a governmental body
in any session at which a quorum is present.
The term does not apply to any social or chance
gathering or conference which is not intended
to avoid this section."
This modified definition was not received with equanimity, and
the League of Women Voters complained that "[D]efining 'meeting'
in terms of whether a quorum is present leaves an unfortunate
loophole that might invite circumvention based on a narrow legal
line instead of emphasizing the broad meaning of the law."
Legislative Reference Bureau Drafting Record,
ch. 426, Laws of 1975.
In reaction, the assembly introduced Assembly
Substitute Amendment 3 to Senate Bill 630.
The Assembly Substitute Amendment defined "meeting" as follows:
"Meeting" means the convening of members of a
governmental body for the purpose of exercising
the responsibilities, authority, power or duties
delegated to or vested in the body.
The term does not include any social or chance
gathering or conference which is not intended
to avoid this subchapter.
The bill passed back and forth between the senate
and the assembly, but they failed to agree.
A Committee on Conference composed of three members of
each house was formed on March 26, 1976, in an attempt
to reach agreement, but they failed to do so.
Senate Bill 630 died with adjournment on March 31, 1976.
However, the members of the Committee on Conference continued
to meet and negotiate as an informal committee during
the months of April and May, 1976.
Senator Goyke was a member of both Committees.
The informal Committee on Conference eventually agreed upon a
bill which Governor Patrick J. Lucey agreed to place on the
agenda of the June, 1976, Special Session.[fn4]
On June 11, 1976, the product of the Committee's deliberations,
Special Session Senate Bill 1 was introduced.
It included the definition of a "meeting" as proposed
by the Assembly Substitute Amendment.
The bill passed as introduced.
Hence the definition of "meeting" as it exists
in Section 19.82(2), Stats., today.
The Assembly Substitute Amendment also deleted
two provisions from the senate version.
These were:
"To implement and ensure the public policy
herein expressed, all meetings of all state
and local governmental bodies shall be publicly
held in places reasonably accessible to members
of the public and shall be open to all citizens
at all times unless expressly provided by law."
and
"This subchapter shall be liberally construed to achieve
these purposes and the rule that penal statutes must be
strictly construed shall be limited to the enforcement of
forfeitures and shall not otherwise apply to actions brought
under this subchapter or to interpretations thereof."
The attorney general's comments on the
assembly version are informative.
He criticized the deletions, arguing that the deletions would
create a presumption for closed government meetings.
He urged these two provisions be put back into the bill:
"Taken together, these provisions put the Legislature
squarely behind openness in government and provide the
courts with a clear statement of the Legislature's intent.
By eliminating these provisions, the Assembly version opens
the door to an interpretation which favors a presumption
that governmental meetings can be closed.
Obviously, the policy of the state should be the other way
around.
The second provision cited above is particularly important
in light of the State Supreme Court's recent decision which
was based upon a strict interpretation of the entire statute
because it contains a penalty clause.
The Senate version clearly provides for a liberal
construction except in forfeiture actions."
Legislative Reference Bureau Drafting Record, ch. 426,
Laws of 1975.
Both provisions were reinserted in Special Session Senate
Bill 1 and are found in Sections 19.81(3) and (4), Stats.
Thus, from January 1975 to September 1976, we see, from our
vantage point ten years after the fact, significant events
that aid us in our interpretive efforts: the budget is
introduced; private meetings by Democrats are held,
including one that had exactly one-half the membership of
the Committee in attendance; a Democratic senator sues his
fellow Democrats by filing a complaint with the district
attorney; the Conta court while exempting these particular
meetings, concludes that even though existing law does not
apply to every gathering of governmental officials regardless
of number, the law does apply to meetings of one-half the
members of a governmental body because of their potential to
frustrate all action; within four months of the Conta court
decision, a new law is passed but not without a great deal of
interaction between the houses.
Today we are asked to interpret the heart of that law,
Section 19.82(2), Stats.
What can we glean from all of the above?
Certain conclusions are inescapable.
First: The legislature, in creating Section 19.82(2), Stats.,
intended to broaden the scope of the Open Meeting Law.
The majority in Conta applied strict interpretation.
The new law directed that except for forfeiture
actions it be interpreted liberally.
The old law covered only those meetings which were a
convening of the governmental body; the new law covered
meetings of members of the governmental body.
The legislature rejected an assembly amendment which would have
created a presumption of closed meetings, and opted for
language that created a presumption of open public
meetings of governmental bodies.
Second: The legislature, in determining the "trigger" of
the Open Meeting Law, rejected "numbers" as the
trigger for application.
It is important to note here that there were three courses of
action that this legislature most certainly did not take.
They did not choose to trigger the statute by automatically
applying the law to any deliberate meetings involving
governmental business between two or more officials.
This point is most critical.
Were this their intention, the legislature had only to
phrase the statute to read: "Gathering of any two or more
members of a governmental body. . . ."
This they did not do.
The failure to do so had to be a deliberate choice.
Given the political implications inherent in the Conta case,
and the fact that some of the members were being sued by
one of their own, the legislature had to be paying
close attention to the case.
These factors combined with the ramifications the decision would
have on its own internal procedures, mean that it had to be
extremely aware of Conta, its language, and all its implications.
The Conta decision with its extensive discussion of
this "any 2 member" approach was too fresh and too important
for the legislature to have overlooked the issue.
Although petitioners invite us to conclude otherwise,
we must decline this invitation to judicial legislating.
The legislature without doubt did not intend such a result.
Given the history, given the impact on the enunciated policy of
openness compatible with the conduct of government business, and
given the ease with which the legislature could have accomplished
applying the law to any gathering of two members or more, we
cannot reach such a conclusion.
Petitioner's invitation must be addressed to the legislature.
If the Open Meeting Law with its notice requirements is to apply
to any gathering of two or more public officials convened for
the deliberate purpose of participating in formal or informal
government business, the legislature must so state.
Neither did they choose triggering the statute by
the presence of one-half of the group.
That the legislature was aware of the power of one-half of
a body is evident by the language of Section 19.82, Stats.,
which creates a presumption of government business being
conducted when one-half or more are present.
It would have been an easy step to have simply said that the
law is triggered by a "gathering of one-half or more members
of a governmental body. . . ."
They did not do so.
Other states had.
The Conta court spoke at length to the power
of one-half of the group.
It was a major point in the brief of Goyke Ä a member of the two
Conference Committees which shaped the language.
Their failure to trigger the statute by such language
could not have been an oversight.
It had to be deliberate.
Neither did they choose, and in fact specifically rejected,
triggering the statute by the presence of a quorum.
This was the approach in the original senate version,
Senate Bill 630, and it was rejected.
Third: That although the focus of the legislature was on the
purpose of the gathering ["for the purpose of exercising
the responsibilities, authority, power or duties. . . ."]
it is clear that the legislature did not intend that
"purpose," standing alone, could trigger the statute.
If purpose was the only trigger, then Sections 19.81-87, Stats.,
would apply to any gathering of even two members of a ninety-nine
member body if the purpose of their meeting was to discuss
governmental business.
As discussed above, this is an approach the
legislature intended to avoid.
Fourth: The legislature in enacting Sections 19.81-87, Stats.,
intended the law to apply, at least under some
circumstances, to gatherings of less than one-half
of the members of a governmental body.
The legislative history, the language of the Conta decision,
as well as common sense tells us this has to be the case.
Legislative history reveals that one of the concerns,
as expressed in the Legislative Reference Bureau
Drafting Record, was evasion.
As discussed above, the original Senate draft provided for
triggering of the statute only when a quorum was present.
It was rejected because it was felt that the quorum language
"leaves an unfortunate loophole that might invite
circumvention based on a narrow legal line instead
of emphasizing the broad meaning of the law."
The reasoning found in that objection is equally applicable
to language that would have made the law apply only to gatherings
of one-half the members or more.
In addition, the language in Conta regarding groups
consisting of less than a quorum was before them:
"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."
Id. at 687.
The legislature did nothing to step back
from that conclusion found in Conta.
Common sense also tells us, and the Commissioners here agree,
that if proxies are present so as to realistically make-up a
majority, the Open Meeting Law applies.
Fifth: The legislature was concerned with the ability of a
gathering to block passage of pending legislation.
Senator Goyke had pressed this point in his
amicus brief to the Conta court.
The court agreed with him.
Id. at 687-88.
Goyke was on the Conference Committee which drafted the bill,
the language from which became Sections 19.81-87, Stats.
A tie vote on a matter of pending legislation
is a defeat of that proposal.
It cannot become law.
The recognition of that power could not and did not escape
the legislature's attention: even the language giving
rise to a presumption of governmental business uses
the words "one-half or more," a clear recognition
of the intent to reach the power to block.
The question remains as to how these conclusions affect
determination of the "triggers" of the Open Meeting Law.
To sum up, the legislature intended to broaden the scope of
the Open Meeting Law from previous law, including Conta.
In determining the trigger of the Open Meeting Law, the
legislature rejected the "numbers" approach.
In addition, purpose alone was insufficient
to trigger the statute.
Further, the legislature intended that under some circumstances
the law would apply to gatherings of one-half or less.
And last, the legislature's concern was not only with
the power to pass proposals but also with
the power to defeat them.
It is inescapable, given all the above, that the legislature
intended something in addition to "purpose" in order
to trigger the statute.
If purpose alone were sufficient, the statute would apply any
time two or more members gathered to discuss government business,
a result the legislature clearly did not intend.
What is this "something?"
It cannot be some other number such as a quorum or one-half:
the legislature rejected those approaches.
It cannot be, as discussed above, the potential
only to pass proposals.
The only remaining "something" is the potential of a group to
determine the outcome of a proposal, whether that potential be
the affirmative power to pass, or the negative power to defeat.
From this, we conclude that the trigger is twofold.
First, there must be a purpose to engage in governmental
business, be it discussion, decision or information gathering.
Second, the number of members present must be sufficient
to determine the parent body's course of action
regarding the proposal discussed.
The burden of proving that a meeting of this nature occurred
involving less than one-half of the total members rests
with the party asserting the violation.
Section 19.82(2), Stats., states in part:
"If one-half or more of the members of a governmental body
are present, the meeting is rebuttably presumed to be for
the purpose of exercising the responsibilities, authority,
power or duties delegated to or vested in the body."
Given this statutory assertion, and the statutory silence with
respect to meetings of less than one-half, it follows that the
burden of proof involving meetings of less than one-half of the
membership rests with the party asserting the violation.
We turn now to applying Sections 19.81-87, Stats., and our
interpretation of that law, to the facts of this case.
It is conceded that the purpose of the meeting of the four
Commissioners was to discuss the pending capital budget.
It was therefore a meeting "for the purpose of exercising
the responsibilities, authority, power or duties
delegated to or vested in the body."
Section 19.82(2).
It is conceded that passage of that proposal
required a two-thirds vote.
It is conceded that four members were sufficient to
defeat any proposal regarding the capital budget.
Because the convening of these four members was for the
purpose of exercising the responsibility, authority, power
or duties of the body, i.e. the discussion of the capital
budget, and because these four members had the potential to
determine the outcome of any proposal regarding the capital
budget, we hold that this meeting was subject in all respects
to Wisconsin's Open Meeting Law.
The Commissioners argue that because they were from two opposite
factions (two of them represented the city and two represented
the suburbs), they were not in fact a "negative quorum."
Their argument rests on the premise that these two factions would
not in reality ever join together, and therefore would never be
in a position to determine the outcome by voting together to
defeat the proposal.
We reject this argument in total.
Whether a group of divergent forces would ever
join together is simply not the issue.
The fact is that there is always the potential, no
matter how divergent the forces, to join together.
The Open Meeting Law is concerned with the potential to determine
the outcome, not with the likelihood that an alliance may or may
not be formed.
The legislature knew, as do these Commissioners,
that politics makes strange bedfellows.
Today's enemy may become tomorrow's ally.
Shifting agendas and shifting alliances can and often do
lead to unpredictable results and unlikely alliances.
When a group of governmental officials gather to engage in formal
or informal government business and that group has the potential
to determine the outcome of the proposal or proposals being
discussed, the public, absent an exception found within the
law has the right to know Ä fully Ä the deliberations
of that group.
The public is entitled to no less.
Newspapers Inc. conceded at oral argument that this was
not an appropriate case to impose a forfeiture.
There is no allegation that these Commissioners committed
a knowing or intentional violation of the law.
From a review of the record we can discern none.
The record reveals a hardworking, industrious Commission
increasingly frustrated by its inability
to pass a capital budget.
A deadline loomed.
The meeting was a good faith effort by Chairperson Showers
to resolve the impasse.
Notwithstanding these concerns, the public had rights
of full access to that meeting.
The relief requested by Newspapers Inc. is a declaration by this
court that the closed meeting of the four Commissioners on
December 1 violated Wisconsin's Open Meeting Law.
It did.
We reverse and direct that a declaratory judgment alone
be entered in favor of the petitioners.
By the Court. Ä Decision of the court of appeals is reversed.
Rights declared.
[fn1] See, e.g., Alaska Stat. Section 44.62.310
(Cum. Supp. 1986), Del. Code Ann. tit. 29,
Section 1002(e) (1981) and Hawaii Rev. Stat.
Section 92-2(3)(1976).
[fn2] See, e.g., Col. Rev. Stat. Section 24-6-402
(Cum. Supp. 1985), Va. Code Ann. Section 2.1-341(a)
(Cum. Supp. 1986).
[fn3] The above historical facts, unless otherwise noted,
are derived from State ex rel. Lynch v. Conta,
71 Wis.2d 662, 239 N.W.2d 313 (1976) and a
stipulation of facts filed in that
case on November 17, 1975.
[fn4] See Wis. State Journal (Madison, Wis.),
March 27, April 23, April 28,
May 8 and May 14, (1976).
RELATED CITATIONS:
OPINIONS OF THE ATTORNEY GENERAL:
OPINION NO. OAG 9-92,
80 Op. Att'y Gen. 205 (1992)
OPINION
NO. OAG 14-89,
78 Op. Att'y
Gen. 71 (1989)
CASE LAW CITATIONS ON SHOWERS:
IN RE THE MARRIAGE OF ZABEL,
210 Wis.2d 336 (Ct.App. 1997)
565 N.W.2d 240
PLUSKOTA v. ROADRUNNER FREIGHT SYSTEMS,
INC.,
188 Wis.2d 288 (Ct.App. 1994)
524 N.W.2d 904
STATE EX
REL. HODGE v. TURTLE LAKE,
180 Wis.2d 62 (1993)
508 N.W.2d 301
GARDNER v. GARDNER,
175 Wis.2d 420 (Ct.App. 1993)
499 N.W.2d 266
ST. EX REL.
BADKE v. GREENDALE VILLAGE BD.
173 Wis.2d 553 (1993)
494 N.W.2d 408
DANE COUNTY v. McCARTNEY,
166 Wis.2d 956 (Ct.App. 1992)
480 N.W.2d 830
BUTZLAFF v. WISCONSIN PERSONNEL
COMMISSION,
166 Wis.2d 1028 (Ct.App. 1992)
480 N.W.2d 559
BRONFMAN v. DOUGLAS COUNTY,
164 Wis.2d 718 (Ct.App. 1991)
476 N.W.2d 611
WAUSAU SCH. DIST. MAINTENANCE UN.
v. WERC,
157 Wis.2d 315 (Ct.App. 1990)
459 N.W.2d 861
JOURNAL/SENTINEL,
INC. v. PLEVA,
155 Wis.2d 704 (1990)
456 N.W.2d 359
STURGIS v. NEENAH BOARD OF CANVASSERS,
153 Wis.2d 193 (Ct.App. 1989)
450 N.W.2d 481
IN MATTER OF
ESTATES OF ZIMMER,
151 Wis.2d 122 (Ct.App. 1989)
442 N.W.2d 578
STATE EX REL.
MORKE v. DONNELLY,
151 Wis.2d 219 (Ct.App. 1989)
444 N.W.2d 730
JOURNAL/SENTINEL,
INC. v. PLEVA,
151 Wis.2d 608 (Ct.App. 1989)
445 N.W.2d 689
RICE v. CITY OF OSHKOSH,
148 Wis.2d 78 (1989)
435 N.W.2d 252
CITY OF OAK CREEK v. KING,
148 Wis.2d 532 (1989)
436 N.W.2d 285
PAULTON v. VOLKMANN,
141 Wis.2d 370 (Ct.App. 1987)
415 N.W.2d 528
STATE EX REL.
NEWSPAPERS v. SHOWERS,
135 Wis.2d 77
(1987)
398 N.W.2d 154
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