STATE v. SWANSON, GJS
92 Wis.2d 310 (1979) HOME
284 N.W.2d 655 MAIL
310 312 314 316 318 320 322
311 313 315 317 319 321 323
RELATED DECISIONS, OPINIONS
Supreme Court No. 77-217.
Argued October 9, 1979.
Decided November 6, 1979.
APPEAL from a judgment of the circuit court for
La Crosse county: PETER G. PAPPAS, Circuit Judge. Affirmed.
For the appellant there were briefs by W.A. Kirkpatrick and Hale,
Skemp, Hanson, Schnurrer & Skemp, of La Crosse, and oral argument
by William P. Skemp.
For the respondent the cause was argued by James P. Altman,
assistant attorney general, with whom on the brief
was Bronson C. La Follette, attorney general.
WILLIAM G. CALLOW, J.
This is an appeal from a judgment entered on June 22, 1977,
imposing a forfeiture of $100 and assessing costs and
disbursements of $123.53 against defendant-appellant Harold
Swanson (defendant), following a finding that the defendant who
was an alderman of the city of La Crosse and chairperson of the
five-member Annexation and Apportionment Committee (Committee) of
the Common Council failed to give public notice of a September
23, 1976, meeting of the Committee and attended the meeting
knowing that notice had not been given, in violation of secs.
19.83 and 19.84, Stats.
After the complaint was filed, the defendant answered, denying
the violation, and moved for summary judgment.
The trial judge granted summary judgment in favor of the state,
pursuant to Section 802.08(6).
The defendant appeals.
The issues on appeal are:
(1) Was the September 23, 1976, meeting of the Annexation and
Apportionment Committee a "meeting" as defined
by Section 19.82(2), Stats.?
(2) In forfeiture actions brought under Section 19.97(1),
is the state required to prove a specific
intent to violate the Open Meeting Law?
The parties have stipulated to most of the following facts:
By resolution dated March 11, 1976, the Common Council
of the city of La Crosse established an
Annexation and Apportionment Committee.
The Committee was given "the authority to deal with firms,
persons and corporations relative to annexation
and make recommendations and reports to the
Common Council on annexation matters."
By resolution dated September 9, 1976, the Common Council
authorized the Committee "to negotiate with the Town of Medary
such compromise or compromises that may be deemed necessary and
desirable to effect a solution to the impasse with respect to
sewer service to the Town of Medary, and report back to the
Common Council for its consideration."
The defendant was contacted by several residents of the town of
Medary who requested that the members of the Committee meet with
town of Medary residents to discuss annexation and sewer service
to the town.
The defendant agreed and asked the La Crosse City Clerk to notify
only the members of the Committee that a conference would be held
at the Fauver Hill School in the town of
Medary at 7. p.m., September 23.
The defendant also requested the City Clerk
not to notify the news media.
The City Clerk told the defendant that she
would be unable to comply with his requests.
The defendant then personally notified each member of the
Committee but did not notify the news media or the
general public and did not comply with the notice
provisions of secs. 19.83 and 19.84, Stats.
Thus the meeting took place without being preceded by
the public notice referred to in Section 19.84(1)(b).
In response to written interrogatories, the defendant stated
that he did not notify the public or the news media because
the town of Medary residents requested him to notify only
Committee members and that he took no action to comply
with Sections 19.83 and 19.84 because, in his words,
"Such statutes [are] not applicable to this meeting."
He did not seek legal advice from the City Attorney's office
regarding whether notice should have been given.
On September 23 the defendant and the other four members
of the Committee met with six citizens of the town of Medary,
including one who was the chairperson of the town of Medary
Sanitary Sewer District and who had selected the remaining
five Medary residents in attendance.
No officers of the town of Medary attended the meeting.
The doors to the meeting were not locked,
and no one was refused entry.
The participants discussed annexation, a shopping center,
and water and sewer services, as well as cost
information for such services.
The participants also discussed a document dealing with
annexation and related subjects which was
distributed by the Committee.
The document invited Medary residents to "form a representative
group of at least five or six people to seriously negotiate with
the Annexation Committee" and proposed, as "the only reasonable
solution to all our problems," that the town of Medary end its
incorporation attempt, allowing the city of La Crosse to annex
certain property; in return, La Crosse would allow residents of
certain areas in Medary to hook on to the La Crosse sewer system.
Following the meeting the Committee received a letter from those
residents of the town of Medary who attended which acknowledged
their lack of official standing and which was identified as "a
response to the proposal made at our meeting on September 23,
1976." The letter proposed "two possibilities for fruitful
negotiations" between Medary and La Crosse.
On December 9, 1976, on the complaint of a La Crosse radio
station, a complaint was filed alleging that the defendant's
participation in the September 23 meeting constituted
violations of the Wisconsin Open Meeting Law.
The defendant denied the allegation and claimed the September 23
meeting was a "conference" for information purposes and not
subject to the provisions of the Open Meeting Law.
The defendant moved for summary judgment.
In a memorandum decision the trial court concluded that the
September 23 meeting was a "meeting" as defined by Section
19.82(2), Stats., rather than an exempt "conference."
The decision contains the trial court's observation that
"[o]ther than the argument that this was an
informational meeting, no facts have been
produced by the defendant to rebut the
presumption set forth in Section 19.82(2) Wis. Stats."
Therefore, the trial judge granted judgment in favor
of the state, pursuant to Section 802.08(6).
Judgment was entered against the defendant imposing a forfeiture
of $100 and assessing costs and disbursements of $123.53.
The defendant concedes that the Committee is a "governmental
body" as that term is used in Section 19.82, Stats.[fn1]
The defendant further concedes that he has the burden of
rebutting the presumption that the September 23 meeting was for
the purpose of exercising the responsibilities, authority, power,
or duties delegated to or vested in the Committee because all of
the Committee's members were present.
In his effort to rebut the presumption, the defendant contends
the gathering was a conference convened for the purpose of
exchanging information and not for the purpose of exercising the
Committee's responsibilities, authorities, or duties.
Though he acknowledges the Open Meeting Law has been
substantially revised since this court decided
State ex rel. Lynch v. Conta, 71 Wis.2d 662,
239 N.W.2d 313 (1976), the defendant cites
the following language from that decision
as support for his conclusion that the
gathering was an exempt conference
excused from the statutory requirement
by the last line in subsection 2
of Section 19.82, Stats.
"If members of a governmental body intentionally
gather to discuss business without undertaking a
formal meeting, they can be described as in a
Id. at 684.
However, the defendant fails to recognize that the word
"conference" is used in a different sense when
employed in Section 19.82(2), Stats.
This is made clear in the passages which
follow the defendant's excerpt:
The statute does not let such possible gatherings exist as
an evasion of the law.
A conference may be analyzed to see if it is designed to
avoid an open meeting requirement.
If such intention is discerned, it may thereupon be
designated a "meeting" under the statute for analysis of its
exact noncompliance with open session requirements.
Id. at 684. . . .
The revision of our open meeting law when forfeiture was
added as a sanction also included the addition of
conferences "designed to evade the law.
The establishment that such occurred, for prosecution
purposes, is obviously a question of fact.
Circumstances themselves, however, may dictate
that evasion is being designed.
If every member of a governmental body is present at a
conference and any of the broad activity that composes
governmental activity as defined in Section 66.77(3),
Stats., is undertaken, a question of evasion is posed;
the members are exposing themselves to the jeopardy
of a prosecution.
A chance gathering would not justify governmental activity
being intentionally conducted, unless an emergency or other
difficulties (other than that engendered by open
session compliance) made such action necessary.
A planned conference of the whole offers
no such exigent excuse.
Likewise, when a majority and thus a quorum gather, it is a
rare occasion which can justify any action without open
session compliance and therefore not be considered an
evasion of the law.
Quorum gatherings should be presumed to be in violation of
the law, due to a quorum's ability to thereafter call,
compose and control by vote a formal meeting of a
As to the March 11, 1975 gathering, petitioner and both
amici curiae agreed that a majority, a quorum of the
committee, participated in a private conference.
Their purpose was to receive expert advisory opinions, which
action would fall into the informal government activity
described in Section 66.77(3), Stats.
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." (Emphasis added.) Id. at 685-86.
Three and one-half months after this court's decision in
State ex rel. Lynch v. Conta, supra, the legislature amended
the Open Meeting Law to incorporate the suggested presumption
which the defendant is required to overcome.
The defendant argues that, because no official of the town
of Medary was present, and because only citizens acting as
individuals were in attendance, the September 23 gathering
was not for the purpose of exercising the Committee's
responsibilities, authority, power, or duties, and
thus was not a meeting.
We do not agree.
The La Crosse Common Council created and empowered the Committee
to represent the interests of La Crosse in annexation matters.
However, the Medary Town Board need not represent those areas of
the town under consideration for annexation by La Crosse because
the property owners and electors within an area of the town may
determine whether annexation will occur, independent of the
The interests of the Town Board and of citizens and
property owners of the area proposed to be
annexed may at times be in conflict.
Therefore, individual town residents and property
owners may deal directly with the city.
That occurred here.[fn2]
The defendant argues that the Committee did not have authority
to bind the city in any agreement with the town residents.
The statute does not require or contemplate that committees
must have such authority before they are subject to
the provisions of the Open Meeting Law.
The ultimate question is whether the members of a
governmental body have convened for the purpose of
exercising the responsibilities, authority, power,
or duties delegated to or vested in the body,
Section 19.82(2), Stats., and not whether the
governmental body is empowered to exercise
the final powers of its parent body.
In this case the Committee's actions were consistent with
and in furtherance of its charge to "deal with firms,
persons and corporations relative to annexation."
We conclude the facts do not support the defendant's
assertion that the September 23 meeting with town
of Medary residents was an exempt conference.
The defendant argues the trial court denied him
a jury trial n the issue of intent when summary
judgment was granted to the plaintiff.
Section 19.96, Stats.,[fn3] applies to a person who "knowingly"
attends a meeting held in violation of the statute.
We do not interpret State ex rel. Lynch v. Conta, supra, as
controlling on this issue of scienter for that case, an
original action for declaratory judgment, was "concerned
not with whether the respondents are candidates for the
penalty of a 'knowing' violation, but rather merely with
whether there was a violation." 71 Wis.2d at 679.
The defendant contends that he is not subject to the forfeitures
imposed by Section 19.96, Stats., because he did not know that
the gathering he attended was a "meeting," and thus did not know
that he violated the Open Meeting Law by attending the meeting.
The relevant portion of Section 19.96 provides:
"Any member . . . who knowingly attends a meeting of such
body held in violation of this subchapter . . . shall
forfeit without reimbursement not less than $25 nor
more than $300 for each such violation."
"Knowingly" is not defined in the statute.
In prosecutions under federal criminal statutes prohibiting
knowing conduct, the federal circuit courts of appeal have
approved the premise that "knowingly" is not limited to positive
knowledge but includes the state of mind of one who acts "with an
awareness of the high probability of the existence of the fact in
question," or when one "does not possess positive knowledge only
because he consciously avoided it."
United States v. Jewell, 532 F.2d 697, 700, 702, nn. 12 & 13
(9th Cir. 1976) (in banc), cert. denied 426 U.S. 951 (1976).
We agree and hold this definition applicable
to Section 19.96, Stats.
Applying this standard, we conclude the facts support the
trial court's judgment that the defendant's attendance
at the Fauver Hill School meeting constituted
a violation of the Open Meeting Law.
After the City Clerk refused to comply with his requests,
the defendant personally notified each member of the Committee;
and he attended the meeting knowing the subject of the meeting
and knowing that public notice had not been given.
The defendant did not seek advice from the City Attorney
concerning the requirements of the Open Meeting Law, even though,
as he conceded in this court during oral argument, the City Clerk
had told him to consult the City Attorney on whether public
notice should be given.
The statutory text is silent on whether scienter is an element
of the offense when the violation of the Open Meeting Law
is one other than attendance at illegally convened
or conducted meetings.
Although we stated in State v. Alfonsi, 33 Wis.2d 469, 476, 147
N.W.2d 550 (1967), that "the element of scienter is the rule
rather than the exception in our criminal jurisprudence,"
we recognize that "[a] legislature may create a crime
which requires no specific intent."
State v. Gould, 56 Wis.2d 808, 810, 202 N.W.2d 903 (1973).
"Wisconsin has abolished all common-law crimes,
and the element of intent of the statutory crimes
is only necessary when specified by statute."
Flowers v. State, 43 Wis.2d 352, 360, 168 N.W.2d 843 (1969).[fn4]
In State v. Hartfiel, 24 Wis. 60 (1869), this court affirmed
the conviction of a tavern keeper for selling liquor to a
minor notwithstanding that the minor was over six feet
tall and had informed the tavern keeper that he was of age:
"The authorities cited are to the effect that, where a
statute commands that an act be done or omitted, which,
in the absence of such statute, might have been done or
omitted without culpability, ignorance of the fact, or
state of things contemplated by the statute, will not
excuse its violation." . . . .
. . . [W]e have no doubt that the legislature intended
to inflict the penalty, irrespective of the knowledge
or motives of the person who has violated its provisions.
Indeed, if this were not so, it is plain that the statute
might be violated times without number, with no possibility
of convicting offenders, and so it would become a dead
letter on the statute book, and the evil aimed at by
the legislature remain almost wholly untouched.
To guard against such results, the legislature has, in
effect, provided that the saloon keeper, or other vendor
of intoxicating liquors or drinks, must know the facts Ä
must know that the person to whom he sells is a qualified
drinker, within the meaning of the statute; and, if not,
he acts at his peril in disobeying the requirements
of the law."
(Emphasis in original.) Id. at 61-62.
See also: West Allis v. Megna, 26 Wis.2d 545, 548-49,
133 N.W.2d 252 (1965).
In State v. Dried Milk Products Co-operative, 16 Wis.2d 357,
114 N.W.2d 412 (1962), this court affirmed the imposition
of a $400 fine, despite the absence of any actual knowledge
of the violation on the defendant's part.
The court described the purpose of such enactments as
being the enforcement of a high standard of care:
"Statutes of this nature, imposing criminal penalty
irrespective of any intent to violate them, have for their
purpose the requirement of a degree of diligence for the
protection of the public which shall render a violation
thereof impossible. . . . These statutes are examples of
situations where a person must at his peril see to it that
the regulations are not violated by his acts or by the acts
of another acting in his behalf."
(Citations omitted.) Id. at 362-63.
In State v. Collova, 79 Wis.2d 473, 482, 486, 255 N.W.2d 581
(1977), the court set forth the test to be employed when
"determining where the legislature intended
to draw the line between offenses which
do and do not require scienter":
"The inquiry, reduced to its simplest
terms, may be stated to be whether the
statute appears on balance to be designed
to punish wrongdoers or to implement a
high standard of care on the part of
The analysis applied by the court in State v. Collova, supra,
supports the conclusion that scienter is not an element of an
offense when a defendant is charged with a violation of the
Open Meeting Law by some act or omission other than attendance at
illegally convened or conducted meetings; the purpose of the
forfeiture section of the Open Meeting Law is directed more
towards implementing and ensuring the public policy
"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,"
Section 19.81(1), Stats., rather than towards
punishing the wrongdoer.
The defendant elected to seek summary judgment after having
stipulated to the facts presented to the court. Section
802.08(6), Stats.,[fn5] clearly authorized the trial
court to grant summary judgment to the plaintiff
under the circumstances presented.
Because we conclude the stipulated facts support the trial
court's judgment that the defendant did not rebut the
presumption that the meeting was subject to the
provisions of the Open Meeting Law and that the
defendant's claim that he did not believe the
statute applied to this type of meeting is
not a defense, we affirm the
trial court's judgment.
By the Court. Ä Judgment affirmed.
[fn1] Section 19.82(1) and (2), Stats., provides:
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 quasi-governmental 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.
[fn2] Despite efforts to reach a negotiated solution, the city of
La Crosse enacted in annexation ordinance on March 9, 1978,
annexing the Dayton-Hudson site and other parcels after an
annexation petition was signed by the owners of
six parcels and by four electors.
The ordinance's validity was upheld after a challenge by
the town of Medary and its sanitary district.
See: Tower of Medary v. City of La Crosse, 88 Wis.2d 101,
277 N.W.2d 310 (Ct. App. 1979).
[fn3] Section 19.96, Stats., provides:
"Any member of a governmental body who knowingly
attends a meeting of such body held in violation
of this subchapter, or who, in his or her official
capacity, otherwise violates this subchapter by
some act or omission shall forfeit without
reimbursement not less than $25 nor more
than $300 for each such violation.
No member of a governmental body is liable under
this subchapter on account of his or her
attendance at a meeting held in violation of this
subchapter if he or she makes or votes in favor of
a motion to prevent the violation from occurring,
or if, before the violation occurs, his or her
votes on all relevant motions were inconsistent
with all those circumstances which cause
[fn4] Section 939.23, Stats., provides rules
of statutory construction to determine
"[w]hen criminal intent is an element of a crime in the
criminal code [Title XLV, Stats.]."
The violation charged here is not part of
the criminal code.
[fn5] Sec. 802.08(6), Stats., provides:
"If it shall appear to the court that the party against
whom a motion for summary judgment is asserted is
entitled to a summary judgment, the summary judgment
may be awarded to such party even though the party has
not moved therefor."
DECISIONS AND OPINIONS THAT CITE SWANSON: