State ex rel. Journal/Sentinel, Inc. v. Pleva, No. 88-1808

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: HEFFERNAN
• Citation: 155 Wis.2d 704,456 N.W.2d 359
• Docket Number: No. 88-1808
• Decision Date: 20 June 1990
• Parties: , 17 Media L. Rep. 2269 STATE of Wisconsin ex rel., JOURNAL/SENTINEL, INC., a Wisconsin corporation, and Bruce Gill, Plaintiffs-Appellants, v. Ronald E. PLEVA, James A. McCann, Lyle A. Stern, William R. Drew, Frederick Stratton, James L. Roberts, G. Frederick Kasten, Jr., and Milwaukee World Festival, Inc., Defendants-Respondents-Petitioners. d

Page 359

456 N.W.2d 359 155 Wis.2d 704, 17 Media L. Rep. 2269 STATE of Wisconsin ex rel., JOURNAL/SENTINEL, INC., a
Wisconsin corporation, and Bruce Gill, Plaintiffs-Appellants,
v.
Ronald E. PLEVA, James A. McCann, Lyle A. Stern, William R.
Drew, Frederick Stratton, James L. Roberts, G. Frederick
Kasten, Jr., and Milwaukee World Festival, Inc.,
Defendants-Respondents-Petitioners. ^d
No. 88-1808. Supreme Court of Wisconsin. Argued April 24, 1990.
Opinion Filed June 20, 1990.

Page 360

[155 Wis.2d 705] L.C. Hammond, Jr., argued, Jeffrey O. Davis and Quarles & Brady, on brief, Milwaukee, for defendant-respondent-petitioner.

Susan J. Marguet, argued, Michael J. Cohen and Meissner & Tierney, S.C., on brief, Milwaukee, for plaintiffs-appellants.

[155 Wis.2d 706] Linda M. Clifford and LaFollette & Sinykin, Madison, for Wisconsin Newspaper Ass'n, amicus curiae.

HEFFERNAN, Chief Justice.

This is a review of a court of appeals decision which reversed the judgment of the trial court, Patrick J. Madden, Circuit Judge for Milwaukee county, dismissing plaintiffs' action for declaratory judgment. State of Wisconsin ex rel. Journal/Sentinel, Inc., v. Pleva, 151 Wis.2d 608, 445 N.W.2d 689 (Ct.App.1989). The issue presented is whether the public may bring an action to enforce a provision in a lease between the City of Milwaukee and Milwaukee World Festival, Inc. (Festival), a private nonprofit corporation charged with organizing public festivals such as Summerfest, which requires all Festival meetings to be held in compliance with the Open Meetings Law. We affirm the decision of the court of appeals and hold as a matter of law--dictated by the clearly stated public policies of freedom of contract and the right of the public to have access to public meetings--that, under the facts of this case, the public has standing to bring an action for enforcement of the Open Meetings provision in the lease between the City of Milwaukee and Festival, the private sponsor of Summerfest.

The facts are these: In December 1985, the City of Milwaukee leased lakefront property to Festival, a nonprofit corporation which organizes events such as Summerfest and several ethnic festivals on what is commonly known as the Summerfest grounds in Milwaukee. This property had earlier been conveyed to the City from the state by statute (ch. 151, Laws of 1929, and ch. 76, Laws of 1973). These statutes provide that the land will revert to the state if it is not used in a manner consistent with the public trust.

[155 Wis.2d 707] The lease contains a provision which requires Festival and its board of directors to comply with the Open Meetings Law (subch. IV, ch. 19, Stats.). The lease, signed on December 31, 1985, required Festival to amend its bylaws in a manner consistent with a letter dated December 20, 1985. The lease provides:

FESTIVAL shall, at its 1986 annual meeting, amend its By-Laws in a manner consistent with the letter attached hereto

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as Exhibit "F" and shall maintain such amendments in full force and effect during the term of this Agreement.

The December 20, 1985 letter, incorporated by reference into the lease, was written by John W. Schmitt, president and chairman of Festival, to John Kalwitz, then-president of the City's Common Council. It provides for the restructuring of the Board of Directors of Festival to include seven public officials, including the Mayor, the Commissioner of City Development, the Commissioner of Public Works, President of the Common Council, an alderman, the City Comptroller, and the County Executive. In addition, the letter states that the Board will modify its bylaws to provide "that all of the meetings of the Board and its committees will be conducted openly consistent with the dictates of the State of Wisconsin open meeting law." At the 1986 annual meeting, Festival amended its bylaws to provide:

The Board and all meetings of committees will be held by complying with the procedures specified in the public meeting law of the State of Wisconsin, currently Wis.Stats. Section 19.81. Public notice of open meetings shall be given pursuant to Wis.Stats. Section 19.84.

Bruce Gill, a reporter for the Milwaukee Sentinel, sought to cover a meeting held on December 7, 1987 by [155 Wis.2d 708] the Festival finance committee. The committee voted to close the meeting, claiming that it was discussing its operating budget and in conformity with sec. 19.85(1)(e), Stats., was allowed to do so behind closed doors.

Gill and the Journal/Sentinel (Newspaper) brought an action for declaratory relief under sec. 806.04, Stats., asserting that Festival is a governmental body under sec. 19.82(1) of the Open Meetings Law; and Newspaper, as a member of the public, has standing as a relator under sec. 19.97(4), Stats., to bring an action for open meetings violations. In the alternative, they claim that Newspaper is a third party beneficiary of the contract between the City and Festival, and has standing to bring an action for a breach of the...