COURT OF APPEALS DECISION DATED AND RELEASED March 18, 1997 |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0023
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State ex rel. Jerome
J. Blonien,
Relator-Appellant-
Cross Respondent,
v.
Charlotte Fleischman
and Peter Kokanovic,
Defendants-Respondents-
Cross Appellants,
Louis Carl, William
Kanack, Frank Stoffel,
Ronald Hayward and
Village of West Milwaukee,
Defendants-Respondents.
APPEAL and CROSS-APPEAL
from judgments and an order of the circuit court for Milwaukee County: PATRICK J. MADDEN, Judge. Judgments reversed, order affirmed and
cause remanded.
Before Wedemeyer, P.J.,
Schudson and Curley, JJ.
PER CURIAM. Jerome J. Blonien appeals from grants of
summary judgment in favor of Charlotte Fleischman, Peter Kokanovic, Louis Carl,
William Kanack, Frank Stoffel, Ronald Hayward and the Village of West
Milwaukee. Blonien filed an action on
behalf of the State alleging that the above referenced village board members
violated the Open Meetings Law, contrary to § 19.97, Stats.[1] Blonien claims that the trial court erred in
granting the board members' motions for summary judgment. The judgments[2]
were granted because Blonien had failed to comply with the notice of claim
statute, § 893.80, Stats. Because the notice of claim statute does not
apply to Open Meetings Law violations as recently declared in Auchinleck
v. Town of LaGrange, 200 Wis.2d 585, 547 N.W.2d 587 (1996), we
reverse the judgments and remand for trial on the merits.
Kokanovic and Fleischman
cross-appeal from an order denying their motion seeking frivolous costs and
denying their motion for leave to conduct discovery on the frivolous
claim. Because the complaint is not
frivolous, and because the trial court did not erroneously exercise its
discretion in denying the motion for leave to conduct discovery, we affirm the
order.
I. BACKGROUND
On August 17, 1992,
the Village of West Milwaukee held a meeting at the village hall. Prior to this meeting, a public notice of
the meeting was issued advising that the board would be considering
“nominations & selections of Chairman for the various Commissions” and
“nominations & selections to fill Commission vacancies on Civil Service and
Zoning Board of Appeals and alternates for all Commissions.” The notices did not specifically name those
individuals who were being considered for these positions.
Blonien, a newspaper
publisher, attended this meeting to report on the actions of the board. During the meeting, he advised the board
that neither of the above referenced items had provided reasonable notice to
the public of the subject matter.
Despite Blonien's objections, the board proceeded to make the
nominations. Kokanovic nominated Maxine
Fleischman as appointee to the Zoning Board of Appeals. Maxine was board member Fleischman's mother. In turn, Fleischman nominated Delores
Kokanovic as an appointee to the Civil Service Commission. Delores was board member Kokanovic's
wife. Prior to this time, concerns had
been raised about board members voting to appoint other family members to these
positions. The question of whether
board members could vote to appoint family members had been sent to the state
ethics board for a determination.
Following the meeting,
Blonien filed a complaint with the Milwaukee County District Attorney, alleging
that Fleischman and Kokanovic had violated § 19.84, Stats., by failing to reasonably
apprise the public or the media of the subject matter of the August 17,
1992, meeting. The Milwaukee County
Corporation Counsel, acting for the district attorney, declined to prosecute. As a result, Blonien brought the instant
action. Blonien's complaint asked the
court to declare that the Open Meetings Law had been violated, to void the
actions taken (the nominations), and to impose penalties pursuant to
§ 19.96, Stats.
Blonien filed a motion
for summary judgment, which was denied because the trial court ruled that
issues of fact existed. Additional
summary judgment motions were filed by respondents on the basis that Blonien
had failed to comply with the notice of claim statute and, therefore, his complaint
should be dismissed. The trial court,
relying on DNR v. City of Waukesha, 184 Wis.2d 178, 515 N.W.2d
888 (1994), granted the motion. Blonien
appeals.
II. DISCUSSION
A. Appeal.
The trial court granted
the defendants' motions for summary judgment on the basis that the notice of
claim statute applied to “all actions” as stated in DNR v. City of
Waukesha. Id.,
184 Wis.2d at 191, 515 N.W.2d 893. In
May 1996, however, our supreme court decided Auchinleck, which
discussed the “all actions” language found in the DNR case. Auchinleck, 200 Wis.2d at
594-97, 547 N.W.2d at 590-92. The court
stated that the notice of claim statute does not apply to actions involving the
Open Meetings Law because applying § 893.80, Stats., to an Open Meetings Law action would be inconsistent
with the legislature's intent in enacting the Open Meetings Law. Id., 200 Wis.2d at 594, 547
N.W.2d at 590. Our supreme court
specifically held that “to the extent [that the DNR's “all
actions” language] is interpreted as applying to open records and open meetings
actions, [it] is too broad and is withdrawn.”
Id. at 597, 547 N.W.2d at 592.
It is clear that Auchinleck's
holding is pertinent to the instant case.
The only question is whether Auchinleck should be applied
retroactively. Whether to apply an
appellate court's holding retroactively is a question of law. Schulz v. Ystad,
155 Wis.2d 574, 596, 456 N.W.2d 312, 320 (1990).
We are guided by the
relevant case law regarding retroactive application. A decision that overrules or repudiates an earlier decision is
retroactive in operation. Fitzgerald
v. Meissner & Hicks, Inc., 38 Wis.2d 571, 575, 157 N.W.2d
595, 596 (1968). We decline to apply a
case retroactively only where there has been great reliance on the overruled
decision and considerable harm or detriment could result to those who relied on
the decision, when the purpose of the new ruling cannot be served by
retroactivity, or when the retroactive application would place an excessive
burden on the administration of justice.
Rolo v. Goers, 174 Wis.2d 709, 723, 497 N.W.2d
724, 730 (1993).
Based on the foregoing,
we conclude that Auchinleck's ruling that § 893.80, Stats., does not apply to Open Meetings
Law cases should be given retroactive effect so as to apply to the instant
case. We see no reason not to apply Auchinleck
retroactively here. Blonien's case was
dismissed at the summary judgment stage.
There is no evidence that, given this procedural setting, the parties
will be harmed or placed under an excessive burden. Moreover, the purpose of the new ruling can and will be served by
applying Auchinleck retroactively. Blonien's claim involves the Open Meetings Law. Our supreme court ruled that forcing
complainants to comply with § 893.80 when they pursue an Open Meetings Law
violation would conflict with the intent of the legislature and the public
policy requiring timely access to governmental affairs. Auchinleck, 200 Wis.2d at
594-97, 547 N.W.2d at 590-92. We
conclude, therefore, that Blonien's case should not have been dismissed for his
failure to file a notice of claim. We
reverse the judgments and remand the cause for a trial on the merits.
B. Cross-Appeal.
Fleischman and Kokanovic
cross-appealed from the trial court's decision denying their motion alleging
that Blonien's complaint was frivolous and from the trial court's decision
denying their request to conduct discovery to prove frivolousness. We affirm the trial court's order on both
issues.
1. Frivolousness.
Whether an action is
frivolous within the meaning of § 814.025, Stats., is a question of law that we review
independently. Lamb v. Manning,
145 Wis.2d 619, 628, 427 N.W.2d 437, 441 (Ct. Ap. 1988). Blonien filed the action on the basis that
the notices for the board meeting were not specific enough to adequately
apprise the public or the media as to what would occur at the meeting. As noted above, the notices provided that
the board would be considering “nominations & selections of Chairman for
the various Commissions” and “nominations & selections to fill Commission
vacancies on Civil Service and Zoning Board of Appeals and alternates for all
Commissions.” We agree with the trial
court that Blonien's action is not frivolous.
Our conclusion is based in part on an
Opinion of the Attorney General. In
giving direction to public officials after the Open Meetings Law was amended in
1976, the Attorney General opined:
Where members know specific items in
advance of the meeting, they should be communicated to the presiding officer
who should give notice of the supplemental agenda in the manner described
above. Matters of importance or of wide
interest should be postponed until more specific notice can be given.
Section
19.84(2), Stats., refers to the content of the required notice:
(2) Every
public notice of a meeting of a governmental body shall set forth the time,
date, place and subject matter of the meeting, including that intended for
consideration at any contemplated closed session, in such form as is reasonably
likely to apprise members of the public and the news media thereof.
This notice should be as specific and
informative as possible.
66
Op. Att'y Gen. 93, 96 (1977) (citations omitted).
The record documents
that the appointment of the board members' relatives was of “wide interest” and
of importance to the community. Based
on the foregoing, the notices at issue in this case could arguably be viewed as
violative of the Open Meetings Law because the notices were not specific
enough. Accordingly, we cannot conclude
that Blonien's action was frivolous.
2. Discovery.
Discovery decisions by
the trial court are governed by a discretionary standard of review. Vincent & Vincent, Inc. v. Spacek,
102 Wis.2d 266, 270, 306 N.W.2d 85, 87 (Ct. App. 1981). Accordingly, we review Fleischman and
Kokanovic's claim that the trial court erred in denying their discovery request
under the erroneous exercise of discretion standard of review. Id. We will not find an erroneous exercise of discretion if the trial
court considered the pertinent facts, applied the relevant law and used a
rational process to reach a reasonable conclusion. Hartung v. Hartung, 102 Wis.2d 58, 66, 306
N.W.2d 16, 20 (1981).
Fleischman and Kokanovic
sought leave to allow discovery to enable them to show that Blonien filed this
action in order to harass and injure them.
The trial court denied the motion, ruling that discovery would not serve
any useful purpose. We cannot conclude
that the trial court's decision constituted an erroneous exercise of
discretion. It concluded that
additional discovery would not persuade it to alter its ruling on the claim of
frivolousness. The trial court had a
substantial evidentiary record on which it could base its conclusion. Our review of the record reveals that the
trial court used a rational process to reach a reasonable conclusion. Therefore, we affirm the order.
By the Court.—Judgments
reversed, order affirmed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.