State ex rel. Newspapers, Inc. v. Showers, 85-471

• Decision Date: 15 January 1987
• Docket Number: No. 85-471,85-471
• Citation: 398 N.W.2d 154,135 Wis.2d 77
• Parties: , 14 Media L. Rep. 1170 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.
• Court: Wisconsin Supreme Court

Page 154

398 N.W.2d 154

135 Wis.2d 77, 14 Media L. Rep. 1170

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.

No. 85-471.

Supreme Court of Wisconsin.

Argued Oct. 28, 1986.

Decided Jan. 15, 1987.

Dennis L. Fisher (argued) and Meissner, Tierney, Ehlinger & Whipp, S.C., Milwaukee, for the plaintiffs-appellants-petitioners.

Patrick Halligan, Sr. Staff Atty. (argued), for the defendants-respondents; Michael J. McCabe, Director of Legal Services, for Milwaukee Metropolitan Sewerage Dist., on brief.

Linda M. Clifford and La Follette & Sinykin, Madison, for amicus curiae the Wisconsin Newspaper Ass'n.

BABLITCH, Justice.

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 ¹; statutes of other states expressly apply whenever two or more or three or more members of a governmental body meet. ² Wisconsin's Open Meeting Law is silent on this point, thereby leaving the interpretation of legislative intent to this court.

Newspapers Inc. and Karen S. Rothe (Newspapers Inc.) appeal, arguing that the Open Meeting Law applies to a meeting held by four Milwaukee Metropolitan Sewerage District Commissioners (Commissioners) to discuss the operating budget and the capital budget of the Milwaukee Metropolitan Sewerage Commission (Commission). Passage of these measures required a two-thirds vote. Although the four members present at the meeting did not constitute a majority of the eleven member Commission, these four did have the power if they so chose to determine the parent body's course of action regarding the budget because they could, by voting together, block the adoption of any proposed budget of the Commission.

We hold that whenever members of a governmental body meet to engage in government business, be it discussion, decision or information gathering, the Open Meeting Law applies if the number of members present are sufficient to determine the parent body's course of action regarding the proposal discussed at the meeting. Because the purpose of the meeting was to engage in government business, i.e. the discussion of the capital and operating budgets, and because the number of commissioners at the meeting were sufficient in number to block any proposed budgets, the Open Meeting Law applied.

At the outset, it is important to briefly discuss the fundamental issue involved here. The fundamental issue is the right of the public to be fully informed regarding the conduct of government business. It is not the right of the media in general, or a specific newspaper or a particular reporter; it is the right of the public to access. The Commissioners' brief unfortunately labels the appeal by Newspapers Inc. a "form of business litigation in aid of its enterprise ... [which] claims a privileged position." We do not view this case in that manner, and we trust the public does not either. The public has by far the largest stake in the litigation of these issues. An informed public is essential to representative government. Practical realities dictate that very few of our citizens have the ability to be personally present during the conduct of government business. If we are to have an informed public, the media must serve as the eyes and ears of that public. Although the media does not have a privileged position, if the media is denied access to the affairs of government, the public for all practical purposes is denied access as well. A democratic government cannot long survive that burden.

The relevant facts are not in dispute. Defendants are members of the Milwaukee Metropolitan Sewerage Commission. The Commission is the governing body of the Milwaukee Metropolitan Sewerage District, and is a governmental body under sec. 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 sec. 66.886(2)(a)(1), Stats. Because of this two-thirds majority voting requirement, four commissioners can block passage of a resolution on financing measures.

In the fall of 1983, a dispute arose between the city and suburban commissioners regarding the method of funding to be used for the 1984 budget. Neither city nor suburban commissioners were able to obtain the required two-thirds majority to pass funding measures because the city commissioners rejected the suburban commissioners' proposals and vice versa. No proposal had garnered the required eight votes. However, tax bills were scheduled to be mailed out beginning in early December and the Commission was under pressure to pass a tax levy in time to include a charge for sewerage service in those bills.

In an attempt to break the deadlock, the Commission met several times during the week of November 28--December 2. On December 1, 1983, there was a meeting at which the stalemate continued. Following the meeting, the four defendants met privately to discuss the impasse. Two of the defendants occupied city seats, while the other two defendants were suburban commissioners. It is this meeting that is the subject of this appeal.

No announcement was made of the closed December 1 meeting. The purpose of the private meeting, conceded by the defendants, was to conduct a "sincere discussion" of differences on the funding question, to move issues along, and to discuss the funding issue "without political posturing." A reporter for the Milwaukee Sentinel present at the open meeting on December 1, petitioner Karen S. Rothe, was not allowed to attend the closed meeting.

The next day, the Commission met again. A tax levy resolution offered by defendant Showers and seconded by defendant Wilkinson passed by a vote of nine to one. On January 19, 1984, Newspapers Inc. initiated this action in Milwaukee County Circuit Court. Alleging that the December 1 closed meeting violated the Open Meeting Law, Newspapers Inc. sought a declaratory judgment that the Commissioners had violated that law. In addition, Newspapers Inc. requested the court to void any action taken at the meeting, to impose a fine on each Commissioner, and to award Newspapers Inc. their costs and attorneys' fees. Newspapers Inc. moved for summary judgment on August 16, 1984. They alleged that no genuine issue of material fact remained as to the circumstances surrounding the meeting, and argued that they were entitled to judgment as a matter of law, based on the pleadings and excerpts from depositions. On September 26, 1984, the Commissioners also moved for summary judgment on the basis of the undisputed facts. The parties were in agreement as to the time and place of the meeting, the number attending, the subject discussed, and the fact that the meeting was closed. The only issue remaining--whether such a meeting was a violation of the Open Meeting Law--required interpretation of secs. 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, 382 N.W.2d 60 (1985). In its opinion, the court concluded that sec. 19.82(2), Stats. was ambiguous and interpreted it to cover those meetings at which a negative quorum, i.e. a number of members sufficient to block action, was present. However, continued the court, as "the capacity to discharge corporate responsibility must exist either directly or indirectly," Id. at 174, 382 N.W.2d 60, only those negative quorums with "more than mere potential ... to operate" posed a violation of the Open Meeting Law. Id. at 179, 382 N.W.2d 60. Because the December 1 meeting involved two Commissioners from each side or coalition, the court of appeals concluded that there was nothing in the record to show that the Commissioners could unite to determine a course of action or inaction by the entire Commission. The court of appeals noted that the record contained no evidence that the Commissioners had been delegated any proxy authority. The court of appeals concluded that because Newspapers Inc. had failed to show that an actual negative quorum had existed, the trial court had correctly granted the Commissioners' motion for summary judgment.

At oral argument, Newspapers Inc. also conceded the four Commissioners did not have the proxies of any other member of the Commission. Newspapers Inc. further conceded that forfeiture is not appropriate here. The relief they request is a declaration by this court that the closed meeting of the four Commissioners on December 1 was in violation of Wisconsin's Open Meeting Law.

The issues presented are 1) whether the Open Meeting Law applies to meetings of members of a governmental body at which less than one-half are in attendance; 2) if so, does the Open Meeting Law apply to this particular meeting?

Resolution of...