BENCH BLOG: Three billboards in Dane County

Judge Jean DiMotto retired in 2013 after
16 years on the Milwaukee County Circuit bench and now serves as a
reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected]

Adams Outdoor Advertising leased three billboards near the Dane County Regional Airport. Before the expiration of the lease, Adams Outdoor Advertising sought to renew it.

The Airport Commission, the Public Works Committee and the Personnel and Finance Committee all voted in support of renewing the lease. The Dane County Board of Supervisors, however, rejected the proposal in an 18-16 vote.

Thereafter, Richard Zecchino and Adams Outdoor Advertising sued the board and some of the individual supervisors.

The central allegation was that the defendant supervisors engaged in an illegal “walking quorum,” thus violating the open meetings law.

A walking quorum is “a series of meetings of groups less than a quorum.”

The closed discussions

The closed discussions that formed the factual basis for the allegation were initiated by Supervisor Paul Rusk. Here was alleged to have arranged the discussions:

• An email was sent to two other supervisors asking what they thought about “doing away with these billboards.” One supervisor didn’t respond and the other said he didn’t have a strong opinion and would defer to Rusk.
• An email was sent to three other supervisors. Rusk stated that he had asked three neighborhood associations for their opinions and they all opposed the billboards. Only one of the supervisors responded, saying he supported the removal of the billboards.
• An email was sent out asking a constituent to provide an opinion to the Personnel and Finance Committee on behalf of a neighborhood association. A courtesy copy was sent to another supervisor.
• An email was sent to yet another supervisor telling her he had tried to call her and asking if she was “ok voting against the billboards.” Rusk said he was trying to conduct a “vote count.” She responded that she would rather not vote because Adams Outdoor Advertising “had accused her of bias in a pending litigation, but that if she did vote, she would vote against the billboards.”
• Two emails were sent to constituents after the full board voted not to renew the lease. In one, Rusk wrote that “we lost some votes who told me they were with us.” In another, he wrote that the trump card “was the 1998 plan – that saved it. But … several didn’t understand. But it secured my base – they had a strong argument to hang on to.”

Circuit court analysis

The defendants brought a motion to dismiss the action for failure to state a claim upon which relief can be based. They argued that the emails had “no temporal or factual nexus whatsoever to the Board vote.” Rather, the emails were “the type of ordinary communications necessary to conduct government business.”

In analyzing the motion, Dane County Circuit Judge Frank Remington first reasoned that the number of supervisors Rusk reached out to – 8 or 9 of the 34 voting supervisors – was an insufficient number to constitute a quorum under both the open meetings statute as well as State ex rel. Newspapers, Inc. v. Showers, a case decided by the Wisconsin Supreme Court in 1987.

Second, he believed that “good government requires communication between board members. It wouldn’t make sense [to say] from now on don’t ever talk to each other, don’t share information, don’t discuss anything until you get to the county board meeting. That certainly would be good advice if you never want to be sued ever again on claims of a walking quorum. It really wouldn’t make for good government because good government does require exchange of information and benefitting by the input and information given by your colleagues on a governmental board, much like I’m sure state senators and state assemblymen talk about issues that are coming before [them].”

Accordingly, Judge Remington granted the defendants’ motion to dismiss. The plaintiffs appealed.

Court of appeals opinion

Although the appeal was taken in District IV, it was assigned to the District I court of appeals. Judge Joan Kessler wrote the opinion of the court.

The court agreed with Judge Remington that, because of the number of supervisors Rusk got in touch with, as well as the content of the emails, there was no illegal walking quorum.

In doing so, it relied on two elements, identified in the Showers case, that are required for a violation of the open-meetings law to have occurred: first, “a purpose to engage in governmental business” and second, “the number of persons present must be sufficient to determine the parent body’s course of action” on the proposal being discussed.

The court also relied on an attorney general’s opinion from 2015 clarifying that “the essential feature” of walking quorums is “the element of agreement among members of a body to act uniformly in sufficient numbers to reach a quorum.”

Turning to Rusk’s activities, the court noted that of the 34 supervisors who voted on the lease, only Rusk had contact with less than one-fourth of them, far less than a quorum or even a negative quorum.

In addition, the court observed that the nature of the emails at issue was mostly “one-way messages garnering few, if any, responses from other supervisors.” There wasn’t a “tacit agreement” to vote against the renewal of the lease of the billboards. And the act of trying to keep track of votes “is hardly indicative of a walking quorum.”

Accordingly, the court affirmed Judge Remington’s decision.

Commentary

This is a good, up-to-date judicial analysis of the idea of walking quorums with respect to the open-meetings law.

I quoted extensively from Judge Remington’s analysis because he captured a vital characteristic of good government – communication, particularly in the legislative branch. His remarks breathe fresh air into the political theater at a time when a lack of communication in Congressional decision-making has been the source of widespread complaints.

And like the recent movie about 3 billboards, the location and nature of billboard messages can rouse a community to action.