STATE v. SWANSON,          GJS

 92 Wis.2d 310 (1979)        HOME

284 N.W.2d 655               MAIL

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STATE, Plaintiff-Respondent v. SWANSON, Defendant-Appellant.
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.


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

     governmental body.

     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  by the receipt of evidence, advisory

     testimony, and the views of each other  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

Town Board.

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 

     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 public."

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.  Judgment affirmed.

[fn1] Section 19.82(1) and (2), Stats., provides:

      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 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

               the violation.

[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."

List pending.