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).)
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PAGE 78
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.
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PAGE 80
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.
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PAGE 81
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.
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PAGE 82
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.
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PAGE 83
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.
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PAGE 84
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?
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PAGE 85
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.
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      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.
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PAGE 87
      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.
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PAGE 88
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. . . . .
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           (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]
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PAGE 90
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.
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PAGE 91
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.
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PAGE 92
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.")
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PAGE 93
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.)
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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.
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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."
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     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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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).
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PAGE 105

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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