State ex rel. Lynch v. Conta

• Decision Date: 07 January 1976
• Docket Number: No. 75--459,75--459
• Citation: 239 N.W.2d 313,71 Wis.2d 662
• Parties: STATE ex rel. Humphrey J. LYNCH, District Attorney of Dane County, Petitioner, v. Dennis J. CONTA et al., Respondents, and Henry Dorman et al. (Necessary Parties, but not denominated Respondents.) Oral Argument
• Court: Wisconsin Supreme Court

Page 313

239 N.W.2d 313

71 Wis.2d 662

STATE ex rel. Humphrey J. LYNCH, District Attorney of Dane County, Petitioner, v. Dennis J. CONTA et al., Respondents and Henry Dorman et al. (Necessary Parties, but not denominated Respondents.)

No. 75--459.

Supreme Court of Wisconsin,

Oral Argument Jan. 7, 1976.

Decided March 2, 1976.

Humphrey J. Lynch, Dist. Atty., Dane county, filed brief and argued for petitioner.

Richard L. Cates, John C. Carlson and Lawton & Cates, Madison, filed brief for respondents; Richard L. Cates, Madison, argued.

H. Joseph Hildebrand and Flanagan, Steinhilber, Chaney & Hildebrand, Oshkosh, amicus curiae, for Gary R. Goyke.

Bronson C. La Follette, Atty. Gen., and John J. Glinski, Asst. Atty. Gen., amicus curiae, for the attorney general.

HANLEY, Justice.

The following issues are presented for determination by this court:

1. Is this a proper case for declaratory judgment?

2. Should a rule of strict construction be followed in interpreting Sec. 66.77, Stats.?

3. Were the private gatherings of the respondents and interested parties 'meetings' of a 'governmental body' as described in the statute?

4. Were these meetings excepted from open session requirements?

5. In rendering a declaratory judgment, would this court violate the doctrine of separation of powers?

Declaratory Judgment

This court has already decided the question of original jurisdiction. Unquestionably the guidelines acknowledged in Petition of Heil (1939), 230 Wis. 428, 442--43, 284 N.W. 42, embrace this case, with its unique issues of interest to this state and its citizens.

Such action, however, was strictly confined to the question of which court should entertain this action, or phrased differently, should the Supreme Court exercise its original jurisdiction? Remaining to be determined by the court of jurisdiction is the question of the propriety of rendering a declaratory judgment. The granting or denying of relief in a declaratory judgment action is a matter within the sound discretion of the court. Selective Ins. Co. v. Michigan Mut. Life Ins. Co. (1967), 36 Wis.2d 402, 408, 153 N.W.2d 523; Sec. 269.56(6), Stats. This discretionary power is most frequently invoked by the challenge of the adversary of the party seeking judgment, See Rudolph v. Indian Hills Estates, Inc. (1975), 68 Wis.2d 768, 771--72, 229 N.W.2d 671, who poses the question of whether the device is appropriately used. Miller v. Currie (1932), 208 Wis. 199, 203, 242 N.W. 570. The unusual roles of the parties here, coupled with statements from the petitioner that indicate an indifference to the very right he supposedly seeks to vindicate, make it quite proper for this court to review this action for compliance with announced standards for a declaratory judgment, even if no challenge is issued by the respondents.

A declaratory judgment may be issued only if the action measures up to the following requirements:

'(1) There must exist a justiciable controversy--that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it.

'(2) The controversy must be between persons whose interests are adverse.

'(3) The party seeking declaratory relief must have a legal interest in the controversy--that is to say, a legally protectible interest.

'(4) The issue involved in the controversy must be ripe for judicial determination. Borchard, Declaratory Judgments, pp. 26--57.' State ex rel. La Follette v. Dammann (1936), 220 Wis. 17, 22, 264 N.W. 627, 629, quoted in Pension Management,

Page 323

Inc. v. Du Rose (1973), 58 Wis.2d 122, 127--28, 205 N.W.2d 553. See State v. WERC (1974), 65 Wis.2d 624, 633, 223 N.W.2d 543.

In his complaint, petitioner states

'(26) That the petitioner brings this action to obtain an authoritative ruling from this court on whether the meetings violate the open meeting law.'

The enforcement provisions of the open meeting law are as follows:

'(8) Any member of a governmental body who knowingly attends a meeting of such body at which a violation of this section occurs shall forfeit without reimbursement not more than $200 for each such violation, provided that he shall not be liable if he calls for a vote on whether the body shall take that action constituting such violation, or if he is recorded in the minutes of the body as voting against the action constituting such violation.

'(9) The department of justice may bring an action under this section on its own motion. In such cases, the court shall award the recovery of the forfeiture together with reasonable costs to the state.

'(10) The district attorney may commence an action under the section upon the verified complaint of any person. In such cases, the court shall award the recovery of reasonable costs to the county. If no action is commenced within 20 days after verification such person may bring an action in his own name and, if the defendant is found guilty of violating this section, the court may award costs and reasonable attorney's fees to the plaintiff.' Sec. 66.77, Stats.

In this proceeding, the requested declaratory judgment concerns the applicability of the statute to a situation described in facts stipulated by the parties. This question is markedly different from the question of whether there was a knowing violation of the statute by the named respondents, which would be the focus of a prosecution action. The requested judgment is, however, arising in the penal context, as the petitioner District Attorney of Dane County has an interest only under such circumstances.

A review of the above-quoted forfeiture provision demonstrates that this is an act that has penal consequences. 3 Sutherland, Statutory Construction sec. 59.02 (3rd ed. 1974). We note that the originally enacted version of the open meeting law contained no enforcement provision. Ch. 289, Laws of 1959. As such it was merely a suggested mode of responsible governmental procedure. By Ch. 297, Laws of 1973, the legislature modified the law and added the forfeiture provision. The petitioner here seeks a construction of the law apparently for enforcement purposes and thus consideration cannot be given to such additional aspects as the 'voidability' provision. Sec. 66.77(3), Stats.

There has been doubt in the past as to whether the declaratory judgment procedure was proper when penal legislation was involved. The general rule now is that rights, status or immunities under penal laws may be the subject of declaratory judgments in a proper case. This was acknowledged in Waukesha Memorial Hospital v. Baird (1970), 45 Wis.2d 629, 635, 173 N.W.2d 700. It is also generally accepted that a proper case for declaratory judgment is presented only by the request of the party threatened by the application of the penal law. Borchard, Challenging 'Penal' Statutes by Declaratory Action, 52 Yale L.J. 445 (1943). However, since the parties are in fact adversaries, and if the defendants could have brought this suit as the petitioners and have not protested the converse form, there is no inflexible requirement to dismiss the suit. We do admonish against further suits in this style. Those in the position of the petitioner have a ready and adequate forum for their proposed construction of a law in the normal enforcement action. Declaratory judgment is reserved for those without such available recourse.

Page 324

Prior cases indicate that this court has been willing to entertain such suits in the past. In re Petition of State ex rel. Attorney General (1936), 220 Wis. 25, 264 N.W. 633, this court accepted original jurisdiction for a declaratory judgment sought by the attorney general on the constitutional validity of the Wisconsin Recovery Act, which he was to enforce. An actual controversy was found between him and the tavern industry subject to the act, and judgment upholding the constitutionality was found. Likewise, in Department of Agriculture and Markets v. Laux (1936), 223 Wis. 287, 293, 270 N.W. 548, 551, the court approved what it deemed a 'declaratory judgment determining whether the questioned sections are constitutional,' again brought by the statute's enforcement officers.

These cases are precedent for the conclusion that this court, or any trial court, while not encouraging those charged with law enforcement to petition for declaratory judgments, will accept such cases in the exercise of discretion. Such exercise would be guided by the normal principles of declaratory judgment. In most situations, the action should be refused until the order of parties is reversed so that the party subject to the penal law is plaintiff.

Additionally, Wisconsin has adopted the Uniform Declaratory Judgment Act, which by its language labels itself remedial and explicitly calls for a liberal construction. Sec. 269.56(12), Stats. As such, it allows broad construction of 'any person . . . whose rights, status or other legal relations are affected by a statute . . ..' Sec. 269.56(2), Stats.

Implicit recognition of this limited outlet to prosecutors is demonstrated in Sec. 269.55, Stats., and comparable laws of other states which allow a declaratory judgment on whether an item is obscene. Notice is given to all parties of their potential rights before resort is had to the criminal prosecution. See State v. I, a Woman--Part II (1971), 53 Wis.2d 102, 191 N.W.2d 897; Gerstein v. 'Pleasure Was My Business' (Fla.App.1961), 136 So.2d 8.

In the present status of this action, the parties involved are certainly adverse. Just as clear is the respondents' interest in contesting this proceeding insofar as it seeks to label their past actions as a violation of the statute. Closer questions are presented as to whether the petitioner has a legally protectible interest in the controversy, whether the controversy is justiciable in that this right is being asserted against the respondents and whether the controversy is ripe for judicial determination.

Petitioner District Attorney has a right of enforcement...