COURT OF APPEALS DECISION DATED AND RELEASED OCTOBER 8, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3340
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN EX
REL.
THE NORTH BAY CO.,
CYRIL D. BAYER,
PRESIDENT,
Petitioner-Respondent-Cross-Appellant,
v.
WASHBURN COUNTY ZONING
COMMITTEE,
Respondent-Appellant-Cross-Respondent,
STEVEN W. SATHER,
BERNARD P.
SHAW, BERNARD J. FOX AND
FRANK L. LOMBARD,
Respondents.
APPEAL and CROSS-APPEAL
from a judgment of the circuit court for Washburn County: JAMES H. TAYLOR, Judge. Affirmed and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Washburn County Zoning Committee (the
County) deliberated in closed session and granted Lee Scull a conditional land
use permit to operate an auto repair business on property zoned
residential. The trial court ruled that
the County violated the open meetings law and entered a summary judgment
voiding the County's decision and awarding attorney fees to the North Bay
Co. The County appeals, arguing that (1)
the trial court erroneously applied State ex rel. Hodge v. Town of Turtle
Lake, 180 Wis.2d 62, 508 N.W.2d 603 (1993), retroactively; (2) the
County reasonably relied on legal counsel's advice in adjourning into a closed
session; and (3) the public interest does not compel voiding the County
action. We reject these arguments,
affirm the judgment and remand to the court with directions to remand to the
County for reconsideration of the permit application in a manner consistent
with the open meetings law. See id.
at 76, 508 N.W.2d at 608.
North Bay cross appeals
the trial court's award of attorney fees, arguing that the president of North
Bay, Cyril D. Bayer, an attorney licensed in Minnesota, provided a minimum of
twenty-five hours legal research to his Wisconsin attorney and should be
reimbursed at the rate of $75 per hour.
We reject this argument and affirm the trial court's award of attorney
fees.
Pursuant to its published notice, the
County held a public hearing on the application of a conditional land use
permit filed by Lee Scull. North Bay,
an adjoining neighbor, appeared. Upon
advice of counsel, immediately following the public hearing, the County
adjourned into closed session to deliberate the application. The County then voted in open session to
grant Scull's permit request subject to certain conditions.
North
Bay initiated this lawsuit alleging open meeting violations. After the County meeting but before this
lawsuit was commenced, Turtle Lake was decided. On summary judgment, the trial court
concluded that the County did not knowingly attend a meeting held in violation
of the open meetings law and that no forfeitures were in order.[1] It concluded, however, that the facts were
almost identical to Turtle Lake.
Because it concluded that public interest in enforcing the open meetings
law outweighed public interest in sustaining the County's action, or any harm
to Scull, it voided the County's action and remanded for consideration of the
conditional use permit consistent with the open meetings law.
When reviewing summary
judgment, we apply the standard set forth in § 802.08(2), Stats., in the same manner as the
circuit court. Kreinz v. NDII
Secs. Corp., 138 Wis.2d 204, 209, 406 N.W.2d 164, 166 (Ct. App.
1987). Summary judgment procedure is
appropriate when material facts are undisputed leaving only a question of law,
which we decide de novo. Green
Spring Farms v. Kersten, 136 Wis.2d 304, 314-315, 401 N.W.2d 816, 820
(1987).
The County does not
argue that the open meetings law was not violated. Instead, it argues that Turtle Lake should not be
applied retroactively.[2] We disagree. "Courts generally apply the law as it is at the time of
decision rather than at the time of the transaction underlying the
lawsuit." McKnight v. GMC,
157 Wis.2d 250, 253, 458 N.W.2d 841, 843 (Ct. App. 1990). A decision is limited to prospective
application only when there are compelling judicial reasons for doing so. Id. Whether to apply a judicial holding only
prospectively is a question of policy and involves balancing equities. Bell v. Milwaukee County, 134
Wis.2d 25, 31, 396 N.W.2d 328, 331 (1986).
Three factors are considered.
First, whether the decision establishes a new principle of law; second,
whether retrospective application will further or retard the operation of the
new rule; and third, whether retrospective application could produce
substantial inequitable results. McKnight,
157 Wis.2d at 254, 458 N.W.2d at 843.
The County argues that Turtle
Lake establishes a new principle of law, as evidenced by the fact that
it reversed the court of appeals decision that relied upon earlier case
law. See id.
at 69-70, 508 N.W.2d at 605. We
disagree. Turtle Lake
interpreted an existing statute, § 19.85(1)(a), Stats., which allows closed session for "[d]eliberating
concerning a case which was the subject of any judicial or quasi-judicial trial
or hearing." Id. at
70, 508 N.W.2d at 606. We conclude that
Turtle Lake did not establish a new principle of law; rather, it
ruled that the court of appeals misinterpreted the language of § 19.85(1)(a),
referring to a "case which was the subject of any judicial or quasi
judicial trial or hearing," by relying on cases dealing with tort
immunity. Id. at 70-71,
508 N.W.2d at 606.
Next, the County relies
on an attorney general opinion that indicates precedent for allowing boards to
adjourn into closed sessions for deliberations after a quasi-judicial
hearing. See James E. Doyle, Wisconsin Open
Meetings Law, A Compliance Guide (1993).
We conclude that Turtle Lake does not overrule this
opinion; Turtle Lake states only that the term case "does
not connote the idea of mere application and granting of a permit,"
absent an adversarial proceeding with witnesses under oath and rules of
evidence. Id. at 73-74,
508 N.W.2d at 607 (emphasis added).
The County also argues
that the lack of earlier case law interpreting § 19.85(1)(a), Stats., makes Turtle Lake
a new principle of law. We
disagree. A decision is not a new
principle of law unless it has overruled "clear past precedent on which
the litigants have relied." McKnight,
157 Wis.2d at 254, 458 N.W.2d at 843.
That is not the situation here, where Turtle Lake relied
on Black's Law Dictionary and
earlier case law for its definition of the word "case." Turtle Lake, 180 Wis.2d at 72-73,
508 N.W.2d at 606-07.
Next, we conclude that
retrospective application will advance and not retard the rule that Turtle
Lake establishes. Turtle
Lake interprets the § 19.85(1)(a), Stats.,
exception "strictly in light of the legislative mandate ... 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." Turtle
Lake, 180 Wis.2d at 71, 508 N.W.2d at 606. Applying Turtle Lake, to void the County's action
and require a remand advances rather than retards the rule Turtle Lake
established.
Next, applying Turtle
Lake will not result in any substantial inequity. As the County states: "This appeal is not about an individual
named Lee Scull and whether or not he should have granted a conditional ...
permit .... [I]t is about ... the
public's interest in seeing to it that operation of local government in
Wisconsin is maintained in as open a fashion as is practicable under guidelines
established by the state legislature ...." It is fair to both parties that this action be governed by
§ 19.85(1)(a), Stats., as
interpreted by Turtle Lake.
Next, the County argues
that its action should not be voided because it reasonably relied on its legal
counsel's advice. It contends that
reliance on legal counsel's advice has been held to be a defense to criminal
actions, relying on State v. Davis, 63 Wis.2d 75, 216 N.W.2d 31
(1974), and State v. Swanson, 92 Wis.2d 310, 284 N.W.2d 655
(1979). It argues that because good
faith reliance on legal advice may exonerate governmental officials from
criminal sanctions, so too should the County be exonerated. We conclude that the cases cited do not
support the position advanced. Here,
the trial court did not attempt to hold the County criminally liable; in fact,
it ruled that the members were not subject to any forfeiture. The court was entitled to void the County's
action pursuant to § 19.97, Stats.,
and remand to the committee for reconsideration of the permit application in a
manner consistent with the open meetings laws.
Next, the County argues
that the public interest does not compel voiding the County's action because of
the County's interest in maintaining order and consistency in its operation of
governmental affairs in reliance on reasonable advice of legal counsel. We disagree. "The public's interest in enforcing the Open Meetings Law
weighs heavily in matters such as this where governmental bodies discuss topics
of public controversy and concern behind closed doors." Turtle Lake, 180 Wis.2d at 75, 508
N.W.2d at 607-08. Based on the
similarity between the considerations of this case with those Turtle Lake,
we conclude that the trial court correctly voided the County's action.[3]
Finally, North Bay cross
appeals, arguing that the trial court's award of attorney fees should be
increased to reflect the twenty-five hours of research performed by its
president, Bayer, a Minnesota attorney, to compensate him for time he spent
researching this case and not in his office.
We disagree.
The trial court found
that the rate of $90 per hour for attorney time and $60 per hour for law clerk
time, as well as the number of hours spent on the case, was fair and reasonable
compensation for North Bay's counsel, but denied Bayer's request to be
compensated for his twenty-five hours of research. It approved and awarded a $5,501 fee and $761.11 in costs and
disbursements. This sum is supported by
the affidavits submitted in support of the fee request and therefore is not
clearly erroneous. See § 805.17(2),
Stats.
Section 19.97(4), Stats., provides that the court may
award to the prevailing party the "actual and necessary costs of
prosecution, including reasonable attorney's fees." This statute refers to "fees," not
to loss of income the prevailing party would have earned but for the time spent
on these proceedings. See Dickie
v. City of Tomah, 190 Wis.2d 455, 463, 527 N.W.2d 697, 700 (Ct. App.
1994). Also, the pleadings indicate
that North Bay appeared and is the prevailing party. It does not appear that Bayer appeared personally as a litigant,
but instead appeared only as the president of North Bay. In any event, North Bay submits no case law
suggesting that an attorney's fee should be calculated to include time spent by
the litigant assisting his employed counsel performing legal research. As a result, we reject this argument.
By the Court.—Judgment
affirmed and cause remanded.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[1]
The committee relied on § 19.85(1)(a), Stats.,
which provides that a closed session may be held for the purpose of
(a) Deliberating, concerning a case, which was a subject of any judicial or quasi-judicial trial or hearing before a governmental body.