State ex rel. Hodge v. Town of Turtle Lake

• Decision Date: 08 September 1993
• Docket Number: No. 92-1807,92-1807
• Citation: 180 Wis.2d 62,508 N.W.2d 603
• Parties: , 35 A.L.R.5th 827 STATE of Wisconsin ex rel. Warren E. HODGE, Plaintiff-Appellant-Petitioner, v. TOWN OF TURTLE LAKE, Richard Fick, James Kasper and Ray Ruff, Defendants-Respondents. . Oral Argument
• Court: Wisconsin Supreme Court

Page 603

508 N.W.2d 603

180 Wis.2d 62, 35 A.L.R.5th 827

STATE of Wisconsin ex rel. Warren E. HODGE Plaintiff-Appellant-Petitioner, v. TOWN OF TURTLE LAKE, Richard Fick, James Kasper and Ray Ruff, Defendants-Respondents.

No. 92-1807.

Supreme Court of Wisconsin.

Oral Argument Sept. 8, 1993.

Decided Dec. 7, 1993.

For the defendants-respondents there was a brief by Gwen Kuchevar, Catherine R. Quiggle and Rodli, Beskar & Boles, S.C., River Falls and oral argument by Gwen Kuchevar.

Amicus curiae brief was filed by Linda M. Clifford and LaFollette & Sinykin, Madison for Wisconsin Newspaper Ass'n.

Amicus curiae brief was filed by Thomas W. Harnisch, legal counsel, Madison for The Wisconsin Towns Ass'n.

BABLITCH, Justice.

The Town of Turtle Lake Supervisory Board (Board) deliberated in closed session on Warren E. Hodge's (Hodge) permit application to store junked automobiles. The court of appeals held that the Board's actions were authorized under the exemption to the Open Meetings Law which allows closed deliberations concerning a case which is the subject of any judicial or quasi-judicial trial or hearing, 173 Wis.2d 909, 499 N.W.2d 301. Hodge seeks review, arguing that the exemption does not apply. We agree. We conclude that the hearing, including the closed deliberations, was not a "case" within the meaning of the exemption found in the Open Meetings Law. Accordingly, we void the decision by the Board. We remand to the circuit court for a determination on attorney's fees and with directions to remand to the Board for reconsideration of the permit application in a manner consistent with the Open Meetings Law.

The relevant facts are undisputed. On November 19, 1990, Hodge petitioned the Town of Turtle Lake for a permit to store junked automobiles within 500 feet of the centerline of Fourth Street and Ninth Avenue in the Town of Turtle Lake, Barron County. The Board initially denied Hodge's petition for the permit and upon review requested by Hodge, voted to uphold the denial.

Hodge then filed suit and the Barron County Circuit Court entered judgment reversing and setting aside the denial of the permit and ordering the Board to set forth the findings of fact and reasons for granting or denying Hodge's permit.

The Board scheduled a special meeting to reconsider the permit request. A notice of the meeting was published in the local newspaper and posted in three places in town.

At the Board meeting on August 19, 1991, Hodge spoke first in favor of the permit, and then several citizens spoke against it. The record lacks any indication that the hearing possessed the characteristics of a traditional judicial proceeding. It contains no evidence which would suggest that counsel for Hodge or the other participants was present, that Hodge or the other participants were under oath, or that the rules of evidence applied to any of the testimony presented. After listening to the witnesses, the Board unanimously voted to go into closed session to consider the matter noting that it was relying on sec. 19.85(a), Stats. ¹ After the closed deliberations, the Board returned and unanimously voted to deny the permit.

Subsequently, Hodge submitted a verified complaint to the Barron County district attorney claiming that the Board's closed deliberations violated the Open Meetings Law and asking the district attorney to prosecute. The district attorney refused to do so.

Hodge filed suit claiming that the Board's actions violated the Wisconsin Open Meetings Law contained in secs. 19.83 ² and 19.85, Stats. The circuit court granted summary judgment to the Town of Turtle Lake and the Board.

In an unpublished opinion, the court of appeals affirmed, concluding that the exemption contained in sec. 19.85(1)(a), Stats., authorized the closed deliberations because the power of a municipal corporation to issue permits is a quasi-judicial function, citing Allstate Ins. v. Metropolitan Sewerage Comm., 80 Wis.2d 10, 17, 258 N.W.2d 148 (1977). We granted Hodge's petition for review.

We first consider the issue of whether the closed deliberations of the Board were authorized under sec. 19.85(1)(a), Stats. We must interpret sec. 19.85(1)(a) to determine if the particular facts constitute a violation of the Open Meetings Law. 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 are reviewable ab initio by this court. Revenue Dept. v. Milwaukee Brewers, 111 Wis.2d 571, 577, 331 N.W.2d 383 (1983). Thus, we owe no deference to the lower court's resolution of the issue. State ex rel. Newspapers v. Showers, 135 Wis.2d 77, 85, 398 N.W.2d 154 (1987). Finally, sec. 19.81(4) requires us to liberally construe the Open Meetings Law to achieve the purpose of providing the public with the fullest and most complete information possible regarding the affairs of government.

Section 19.85(1)(a), Stats., the exemption upon which the Board relies, states that a closed session may be held for the purpose of, "[d]eliberating concerning a case which was the subject of any judicial or quasi-judicial trial or hearing before that governmental body."

The Board contends that an appropriate interpretation of sec. 19.85(1)(a), Stats., is one which recognizes that the granting of a permit is a quasi-judicial hearing. In support of this argument, the Board cites Allstate, 80 Wis.2d at 17, 258 N.W.2d 148, and Corrao v. Mortier, 7 Wis.2d 494, 498, 96 N.W.2d 851 (1959), in which this court determined that the issuance of a permit is a quasi-judicial function for purposes of sec. 895.43(3), the former governmental immunity statute.

Hodge argues that these cases are inapplicable to this analysis of the Open Meetings Law. The concept of a "case which was the subject of any judicial or quasi-judicial trial or hearing", is unique to the Open Meetings Law and, Hodge says, must be analyzed without deference to the tort immunity cases cited by the Board. We agree.

We begin our analysis with a basic premise set forth in sec. 19.83, Stats.: "[e]very meeting of a governmental body ... shall be held in open session" and "all action ... shall be ... deliberated upon ... in open session...." The application and granting of a permit by a town board falls within the purview of this mandate in every respect. The only exception to this mandate is if the meeting qualifies under an exemption to the Open Meetings Law contained in sec. 19.85. We thus examine the exemption contained in sec. 19.85(1)(a) keeping in mind that the exemption should be construed strictly in light of the legislative mandate of sec. 19.81(4) to construe the Open Meetings Law liberally in order to achieve the purpose of providing the public with the fullest and most complete information possible regarding the affairs of government.

The language "concerning a case" in sec. 19.85(1)(a), Stats., was part of an addition to sec. 19.85(1)(a) in 1977. The 1975 version allowed closed deliberations after any quasi-judicial trial or hearing. The statute was amended in 1977 to allow closed deliberations "concerning a case which was the subject of any judicial trial or hearing before that governmental body."

In attempting to discern the meaning of the exemption, we, like the court of appeals, find the legislative history to be unhelpful. We conclude, however, that the language "concerning a case" was added to clarify the legislature's intention to limit the exemption. Any other construction of the language would render the word "case" superfluous, a result which we are to avoid in construing a statute. Kelley Co., Inc. v. Marquardt, 172 Wis.2d 234, 250, 493 N.W.2d 68 (1992). Had the legislature intended to allow any quasi-judicial function to be excepted from the Open Meetings Law it need not have added the language "concerning a case" in the 1977 revision since the draft in effect before 1977 which allowed closed deliberations after any quasi-judicial trial or hearing clearly accomplished that purpose.

The word "case" seems to connote, at the very least, an adversarial setting with opposing parties. "Case" is defined in Black's Law Dictionary as:

A general term for an action, cause, suit, or controversy, at law or in equity; a question contested before a court of justice; an aggregate of facts which furnishes occasion for the exercise of the jurisdiction of a court of justice. A judicial proceeding for the determination of a controversy between parties wherein rights are enforced or protected, or wrongs are prevented or redressed; any proceeding judicial in its nature. Black's Law Dictionary 215 (6th ed. 1990).

It has also been addressed by this court in Lamasco Realty Co. v. Milwaukee, 242 Wis. 357, 381, 8 N.W.2d 372 (1943): "The word 'case' is not one of definite legal content. It relates to matters of fact or conditions involved in a controversy...." Additionally, Wisconsin's Administrative Procedure and Review Act defines "contested case" in sec. 227.01(3), Stats., as:

[A]n agency proceeding in which the assertion by one party of any substantial interest is denied or controverted by another party and in which, after a hearing required by law, a substantial interest of a party is determined or adversely affected by a decision or order.

Finally, the term "case" has been defined in a similar manner by other courts. For example, the federal district court in the District of Columbia stated, "case, in legal terminology is a proceeding by which one party seeks to obtain relief against another named in the suit." Gomez v. United Office And Professional Workers, 73 F.Supp. 679, 682 (D.D.C.1947). See also Lum v. Sun, 70 Haw. 288, 769 P.2d 1091, 1097 (1989) (" 'In a legal sense, "case" is generally understood as meaning a judicial proceeding for the determination of a controversy between parties where rights are enforced or wrongs are prevented or redressed.' "); Leitner v. Lonabaugh, 402 P.2d 713, 718 (Wyo.1965) (...