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NOTICE This opinion is subject to further editing and
modification. The final version will
appear in the bound volume of the official reports. |
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Nos.
94-2809 & 94-2887
STATE OF WISCONSIN : IN SUPREME COURT
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State of Wisconsin ex rel. Robert J. Auchinleck, Plaintiff-Appellant, v. Town of LaGrange and Elizabeth Sukala, Defendants-Respondents. |
FILED MAY 8, 1996 Marilyn L. Graves Clerk
of Supreme Court Madison,
WI |
State of Wisconsin ex rel.
Robert J. Auchinleck,
Plaintiff-Appellant,
State of Wisconsin ex rel.
Abe J. Goldsmith,
Plaintiff,
v.
Town of LaGrange,
Town of LaGrange Ad Hoc
Committee Pertaining to
Law Enforcement and/or
Boating and Safety Patrol,
Denise Pierce, David Heilmeier,
Frank Taylor, Jon Jacobsen,
Charles Herbert Sharpless
and James Shannon,
Defendants-Respondents.
APPEAL from orders of the Circuit Court for
Walworth County, John R. Race, Judge. Reversed
and cause remanded.
ANN
WALSH BRADLEY, J. These cases are before the court on
certification by the court of appeals, pursuant to Wis. Stat. § 809.61
(1993-94).[1] Robert Auchinleck appeals two orders which
dismissed his separate actions against the Town of LaGrange (Town) and other
Town officials for alleged violations of Wisconsin's open meetings and open
records laws. See Wis. Stat.
§§ 19.81-.98 and 19.31-.37. The
circuit court dismissed the actions based on Auchinleck's failure to comply
with the governmental notice provisions of Wis. Stat. § 893.80(1). We conclude that both the open meetings and
open records laws are exempt from the notice provisions of § 893.80(1)
because the policy of public access to governmental affairs which underlies
those laws would otherwise be undermined.[2] Accordingly, we reverse the circuit court's
orders and remand for further proceedings.
The
facts for purposes of this appeal are not in dispute. The Town formed an "Ad Hoc Committee Pertaining to Law
Enforcement and/or Boating and Safety Patrol." This committee served at the direction of the Town Board to
consider the expenditure of monies and the enforcement of Town ordinances with
respect to Lauderdale Lakes.
The committee
often held meetings that were closed to the public. On one such occasion the committee met in closed session to
review a public survey concerning the level of law enforcement that was desired
on Lauderdale Lakes. Auchinleck, the
acting police chief for the Town, filed an action on behalf of the State pursuant
to Wis. Stat. § 19.97(1), (4),[3]
alleging that this meeting was closed in violation of Wis. Stat. § 19.83.[4] (Walworth County Circuit Court Case No.
94-2887.)
Auchinleck
also submitted two requests for certain records related to the committee's
activities. He first requested a copy
of a letter sent to a Town supervisor, which purportedly alleged that
Auchinleck was improperly influenced by a friend when reporting the facts of a
boating accident to state and federal authorities. He also sought the minutes of the meeting at which the letter was
discussed and the names of the persons who received the letter.
Auchinleck's
second request renewed his first demand and
requested the minutes of other meetings that had been closed. After receiving no response from the Town on
either request, Auchinleck filed an action against the Town under Wis. Stat.
§ 19.37(1) of the open records law seeking release of the records.[5] (Walworth County Circuit Court Case No.
94-2809.)
The
Town moved for summary judgment on the ground that Auchinleck had failed in
both cases to comply with the notice provisions of Wis. Stat. § 893.80(1).[6] Relying on DNR v. City of Waukesha,
184 Wis. 2d 178, 191, 515 N.W.2d 888 (1994), the circuit court concluded that
§ 893.80(1) applies to "all actions," including those brought
under the open records and open meetings laws.
Accordingly, the circuit court granted the Town's motion for summary
judgment in both cases.[7] The court of appeals subsequently
consolidated the two actions and certified the cases to this court.
When reviewing a grant of summary judgment,
this court follows the same methodology as the circuit court, which is set
forth in Wis. Stat. § 802.08(2). Jeske
v. Mount Sinai Medical Ctr., 183 Wis. 2d 667, 672, 515 N.W.2d 705
(1994). Where there are no material
facts in dispute, as here, we must determine whether the movant is entitled to
summary judgment under the law. Id. Whether the notice provisions of
§ 893.80(1) apply to actions initiated under the open records or open
meetings law involves statutory interpretation. This is a question of law that we review independently without
deference to the circuit court's resolution of the issue. State ex rel. Hodge v. Turtle Lake,
180 Wis. 2d 62, 70, 508 N.W.2d 603 (1993).
The
Town argues that the circuit court was correct in concluding that the notice
provisions of § 893.80(1) apply to all actions. Auchinleck contends that the application of § 893.80(1) to
open records and open meetings claims would thwart the legislature's declared
policy of open government which underlies those laws. In order to determine whether § 893.80(1) applies to open records
and open meetings claims, we must first examine the plain language of the
relevant statutes. Kellner v.
Christian, 197 Wis. 2d 183, 190, 539 N.W.2d 685 (1995).
Both
the open records and open meetings laws set forth specific enforcement
mechanisms to force governmental entities to comply with those laws. Under the open records law, a municipality
is required to fill any request for records or notify the requester of the
reasons for denial "as soon as practicable and without delay." Wis. Stat. § 19.35(4). If a municipality withholds a record or
delays granting access, the requester may immediately bring an action for
mandamus seeking release of the record. Wis. Stat. § 19.37.
Similarly,
the open meetings law contains a specific enforcement scheme intended to
provide prompt relief for a violation of the statute. A complainant must first bring a verified complaint to the
district attorney. Wis. Stat.
§ 19.97(1). If the district
attorney fails to bring an enforcement action within 20 days after receiving
the verified complaint, the complainant may immediately commence an action for
declaratory judgment or other relief as may be appropriate pursuant to Wis. Stat.
§§ 19.97(1) to (3). See
Wis. Stat. § 19.97(4).
In
contrast to the procedures for immediate relief set forth in both the open
records and open meetings laws, the notice of claim provision of
§ 893.80(1)(b) delays the filing of potential claims in order to afford
the municipality an opportunity to settle the claim without litigation. DNR, 184 Wis. 2d at 195 (quoted
sources omitted). Section 893.80(1)(b)
prohibits an individual from bringing an action against a municipality, or its
officials, for acts done in their official capacity, unless a notice of claim
is first presented and the claim is disallowed. The municipality has 120 days to disallow any claim
presented. § 893.80(1)(b).
In
addition to these separate enforcement mechanisms premised on prompt
enforcement, other provisions of the open records and open meetings laws
conflict with § 893.80(1).
Wisconsin Stat. § 19.35(1)(i) provides that a person may file an
open records request anonymously,[8]
while § 893.80(1)(b) requires disclosure of the claimant's identity and
address. Wisconsin Stat.
§ 893.80(2) imposes costs on a claimant who fails to recover as much as
the municipality's pre-suit offer, yet Wis. Stat. §§ 19.37(2) and 19.97(4)
permit prevailing claimants costs and fees irrespective of a municipality's
pre-suit determination.
Based
on all of the above, we conclude that § 893.80(1) is inconsistent on its
face with the open records and open meetings laws. When confronted with inconsistent legislation, this court's goal
is to ascertain the intent of the legislature and construe the law
accordingly. See Cross v.
Soderbeck, 94 Wis. 2d 331, 343, 288 N.W.2d 779 (1980).
Wisconsin
Stat. § 19.31 of the open records law declares the legislature's intent in
relevant part as follows:
In
recognition of the fact that a representative government is dependent upon an
informed electorate, it is declared to be the public policy of this state that
all persons are entitled to the greatest possible information regarding the
affairs of government and the official acts of those officers and employes who
represent them. . . . To that end, ss. 19.32 to 19.37
shall be construed in every instance with a presumption of complete public
access, consistent with the conduct of governmental business. The denial of public access generally is
contrary to the public interest, and only in an exceptional case may access be
denied.
Similarly,
Wis. Stat. § 19.81 of the open meetings law declares the policy behind the
law to be that "the public is entitled to the fullest and most complete
information regarding the affairs of government as is compatible with the
conduct of governmental business."
Wis. Stat. § 19.81(1). The
open meetings law "shall be liberally construed to achieve [its]
purposes." Wis. Stat.
§ 19.81(4).
Based
on this language, the unmistakable intent of the legislature was to ensure
public access to the affairs of government.
Imposing a potential 120-day delay for a citizen to obtain public
records or to compel a meeting to be open necessarily results in an added layer
of delay and frustration in a citizen's attempt to ensure compliance with the
open government laws.
For
example, if the notice provisions of § 893.80(1) applied to an open
records request, access to public records pertinent to governmental decision
making may be delayed 120 days, in effect eliminating that information from the
public debate. Such a delay defeats the
purpose of the open records of providing the public with the greatest
information possible about the affairs of government and assuring access to
records "as soon as practicable and without delay." Wis. Stat. §§ 19.31, 19.35(4).
Likewise,
requiring a citizen to wait up to 120 days before bringing an enforcement
action for an open meetings violation frustrates the purpose of that law. During this delay, the municipality could
take significant action without public input or scrutiny of the process. Further, the statutory remedy of voiding
governmental action taken at an illegal meeting under Wis. Stat.
§ 19.97(3) may in many cases become moot.
The
Town contends that even if § 893.80(1) conflicts with the open records and open
meetings laws, effect must also be given to the intent of § 893.80(1),
which is to allow a municipality an opportunity to compromise or settle the
claim without litigation. DNR,
184 Wis. 2d at 195. It is a
cardinal rule of statutory construction that upon comparing a general statute
and a specific statute, the specific statute takes precedence. City of Milwaukee v. Kilgore, 193
Wis. 2d 168, 185, 532 N.W.2d 690 (1995).
The specific procedures of the open records and open meetings laws take
precedence over the general notice provisions of § 893.80(1). Further, Wis. Stat. § 893.80(5)
expressly states that specific rights and remedies provided by other statutes
take precedence over the provisions of § 893.80.[9]
The Town's argument that effect must be
given to a policy which encourages settlement and compromise is not
compelling. Unlike in a tort claim for
damages, a municipality has control over whether a suit will be filed based on
its actions. In an open records case,
once a request for records is made, the municipality must release the records
or provide an explanation as to why it refuses to do so. This requirement forces the municipality to
contemplate the issues and decide at the outset what it believes to be the
appropriate action. In an open meetings
case, a municipality has the opportunity to consider its legal grounds for
holding a closed meeting and the likelihood of a successful challenge to its
decision prior to the meeting.
Therefore, allowing a municipality an additional 120 days to contemplate
how to respond to an open records or open meetings enforcement action in large
part duplicates the process in which it already engaged prior to its initial
response.
In
addition to its statutory analysis, the Town asserts that this court's prior
holding in DNR controls this case.
In DNR, the Department of Natural Resources brought an action
against the City of Waukesha seeking an injunction to require the City to
comply with safe drinking water standards, forfeitures for past violations, and
penalties. The circuit court dismissed
the action on the ground that the DNR failed to first provide the City with the
notice required by § 893.80(1). DNR,
184 Wis. 2d at 187-88.
In holding § 893.80(1) applicable
under the facts of that case, this court stated that the notice of claim
statute applied to "all actions."
DNR, 184 Wis. 2d at 191.
That particular language, to the extent it is interpreted as applying to
open records and open meetings actions, is too broad and is withdrawn.
In sum, the language and the public policy
of the open records and open meetings laws require timely access to the affairs
of government. The specific enforcement
provisions of Wis. Stat. §§ 19.31 and 19.81 take precedence over the
general notice provisions of § 893.80(1).[10] Accordingly, we conclude that actions
brought under the open records and open meetings claims laws are exempt from
the notice provisions of § 893.80(1).[11]
By the Court.—The orders of the circuit
court are reversed and cause remanded.
SUPREME COURT OF WISCONSIN
Case No.: 94-2809 and 94-2887
Complete Title
of Case: 94-2809
State
of Wisconsin ex rel., Robert J. Auchinleck,
Plaintiff-Appellant,
v.
Town of LaGrange and Elizabeth Sukala,
Defendants-Respondents.
_______________________________
94-2887
State of Wisconsin ex rel., Robert J.
Auchinleck,
Plaintiff-Appellant,
State of Wisconsin ex rel., Abe J.
Goldsmith,
Plaintiff,
v.
Town of LaGrange, Town of LaGrange Ad Hoc
Committee Pertaining to Law Enforcement
and/or
Boating and Safety Patrol, Denise Pierce,
David
Heilmeier, Frank Taylor, Jon Jacobsen,
Charles
Herbert Sharpless and James Shannon,
Defendants-Respondents.
_____________________________________
ON CERTIFICATION FROM THE COURT OF APPEALS
Opinion Filed: May 8, 1996
Submitted on Briefs:
Oral Argument: January 9,
1996
Source of APPEAL
COURT: Circuit
COUNTY: Walworth
JUDGE: JOHN R. RACE
JUSTICES:
Concurred:
Dissented:
Not Participating:
94-2809 and 94-2887 Auchinleck
v. Town of LaGrange
ATTORNEYS: For the plaintiff-appellant there were
briefs by Patrick J. Hudec, Jean-Marie Reilly and Hudec Law Offices,
S.C., East Troy and oral argument by Patrick J. Hudec.
For the defendants-respondents there was a
brief by Michael J. Cieslewicz, Kevin A. Christensen and Kasdorf,
Lewis & Swietlik, S.C., Milwaukee and oral argument by Kevin A.
Christensen.
Amicus curiae brief was filed by Linda
M. Clifford, and LaFollette & Sinykin, Madison for the Wisconsin
Freedom of Information Council.
Amicus curiae brief was filed by Bruce
Meredith, and Chris Galinat, counsel, Madison, for the Wisconsin
Education Association Council.
[2] We note that the legislature recently
amended the statutes to provide that Wis. Stat. § 893.80 does not apply to
actions commenced under Wis. Stat. §§ 19.37 or 19.97. 1995 Wis. Act 158, § 19.
[3] Wisconsin Stat. § 19.97 provides in
relevant part:
Enforcement. (1) This subchapter shall be enforced in the
name and on behalf of the state by the attorney general or, upon the verified
complaint of any person, by the district attorney of any county wherein a
violation may occur.
. . . .
(4) If the district attorney refuses or
otherwise fails to commence an action to enforce this subchapter within 20 days
after receiving a verified complaint, the person making such complaint may
bring an action under subs. (1) to (3) on his or her relation in the name, and
on behalf, of the state.
Meetings of governmental bodies. Every meeting
of a governmental body shall be preceded by public notice as provided in s.
19.84, and shall be held in open session.
At any meeting of a governmental body, all discussion shall be held and
all action of any kind, formal or informal, shall be initiated, deliberated
upon and acted upon only in open session except as provided in s. 19.85.
[5] Wisconsin Stat. § 19.37(1) provides in
relevant part:
Enforcement
and penalties. (1) Mandamus. If an authority withholds a record
or a part of a record or delays granting access to a record or part of a record
after a written request for disclosure is made, the requester may pursue
either, or both, of the alternatives under pars. (a) and (b).
(a) The
requester may bring an action for mandamus asking a court to order release of
the record. The court may permit the
parties or their attorneys to have access to the requested record under
restrictions or protective orders as the court deems appropriate.
[6] Section 893.80 provides in relevant part:
893.80 Claims against governmental bodies or
officers, agents or employes; notice of injury; limitation of damages and
suits. (1) Except as provided in subs. (1m) and (1p),
no action may be brought or maintained against
any . . . governmental subdivision or agency thereof nor
against any officer, official, agent or employe of the corporation, subdivision
or agency for acts done in their official capacity or in the course of their
agency or employment upon a claim or cause of action unless:
(a)
Within 120 days after the happening of the event giving rise to the
claim, written notice of the circumstances of the claim signed by the party,
agent or attorney is served on the . . . governmental
subdivision or agency and on the officer, official, agent or employe under s.
801.11. Failure to give the requisite
notice shall not bar action on the claim if the . . .
subdivision or agency had actual notice of the claim and the claimant shows to
the satisfaction of the court that the delay or failure to give the requisite
notice has not been prejudicial to the defendant . . . and
(b) A claim containing the address of the
claimant and an itemized statement of the relief sought is presented to the
appropriate clerk . . . for the
defendant . . . subdivision or agency and the claim is
disallowed. Failure of the appropriate
body to disallow within 120 days after presentation is a
disallowance. . . .
[7] In both cases the Town submitted an
affidavit stating that Auchinleck failed to comply with either the notice of
circumstances requirement of Wis. Stat. § 893.80(1)(a) or the notice of
claim requirement of Wis. Stat. § 893.80(1)(b). The circuit court in both cases granted summary judgment based on
Auchinleck's failure to comply with § 893.80(1)(b) without commenting on
§ 893.80(1)(a). Because both
notice provisions were raised, we address the applicability of § 893.80(1)
in its entirety.
[8] Wisconsin Stat. § 19.35(1)(i) provides
in relevant part:
(i) Except as authorized under this paragraph, no
request . . . may be refused because the person making the
request is unwilling to be identified or to state the purpose of the request.
[9] Section 893.80(5) states in relevant part:
When rights or remedies are provided by any other
statute against any political corporation, governmental subdivision or agency or
any officer, official, agent or employe thereof for injury, damage or death,
such statute shall apply and the limitations in sub. (3) shall be inapplicable.
[10] Auchinleck also relies on other statutes not
at issue in this case that contain various separate enforcement provisions or
time limits. He argues that applying
the notice of claim requirements to these statutes would lead to absurd
results. Although we rely in part on
the separate enforcement mechanisms of the open records and open meetings laws
in this case, we make no determination as to the application of the notice of
claim requirements on other statutes which may contain similar enforcement
mechanisms.