State Ex Rel. H.D. Enterprises II, LLC v. City of Stoughton

602 N.W.2d 72, 230 Wis. 2d 480, 1999 Wisc. App. LEXIS 1023

• Court: Court of Appeals of Wisconsin
• Decided: September 16, 1999
• Docket: 98-3112
• Status: Published

Opinions

ROGGENSACK, J.

H.D. Enterprises II appeals from an order of the circuit court granting summary judgment to the City of Stoughton. The circuit court concluded that the City provided adequate notice of the agenda for its common council meeting under § 19.84(2), Stats., and accordingly, did not violate the open meetings law. We also conclude that the notice provided was adequate and therefore, we affirm.

BACKGROUND

Pick 'N Save was building an addition to its grocery store in Stoughton and it applied for a Class A liquor license. Pursuant to the alcohol licensing requirements found in § 125.04(3), STATS., and the open meetings notice provision in § 19.84, STATS., on January 15,1998, the City provided published notice that it would consider the application. The matter was then scheduled for a hearing on January 27th. The city council's agenda indicated that it would discuss Pick 'N Save's application simply by listing the item as "licenses." Several opponents, including H.D. Enterprises, attended this meeting and voiced their concerns about granting the license. At that meeting, the common council denied Pick 'N Save a liquor license.

The council 'decided to reconsider its denial of the license at a meeting held on February 10th. Again, the agenda's indication that it would consider the matter was listed as "licenses." It does not appear from the record that the opponents of the license who attended the first meeting, attended this second one. In reconsidering, the common council decided to grant Pick 'N Save a liquor license. Approximately six days later, the common council convened a special meeting at the request of H.D. Enterprises. H.D. Enterprises asked the council to rescind the license, but the council declined to do so.

H.D. Enterprises then filed a lawsuit asserting that the common council had violated the open meetings law found in ch. 19 of the Wisconsin Statutes, and that the council did not have authority to reconsider its own initial decision. Specifically, it argued that appropriate notice was not given for the February 10th meeting because the term "licenses" was too general to indicate the subject matter of the meeting pursuant to § 19.84, Stats.

H.D. Enterprises states in its brief that after filing this suit, Pick 'N Save surrendered its license and went through the entire application process again, complete with new publications. Again, the common council granted Pick 'N Save the liquor license. Thus, H.D. Enterprises does not dispute that Pick 'N Save now holds a valid Class A liquor license. Instead, it argues that because the notice for the February 10th meeting was inadequate, it is entitled to costs and attorney fees under § 19.97(4), STATS. The circuit court concluded that the notice was adequate; and therefore, the council did not violate the open meetings law. Accordingly, it granted summary judgment to the City. H.D. Enterprises appeals from this ruling.

DISCUSSION

Standard of Review.

Because the facts are not in dispute, our decision turns on the legal significance of the undisputed facts." Construction of a statute, or its application to undisputed facts, is a question of law, which we decide independently, without deference to the trial court's determination." Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315, 317 (Ct. App. 1997).

Mootness.

In its brief, H.D. Enterprises argues that the City was precluded by statute from reconsidering its denial of Pick 'N Save's liquor license. It also argues that the City's grant of the license at the reconsideration meeting violated a notice provision found in § 125.04(3)(f), Stats., which requires an application for a liquor license to be on file with the city clerk at least fifteen days prior to granting the licénse. However, after H.D. Enterprises filed this lawsuit, Pick 'N Save surrendered its license and went through the entire application process again, complete with publication notices. The council then granted Pick 'N Save a new license.

An issue is moot if the determination sought will have no practical effect on an existing controversy. See DeLaMatter v. DeLaMatter, 151 Wis. 2d 576, 591, 445 N.W.2d 676, 683 (Ct. App. 1989). We generally do not decide issues which are moot. See id. However, we may do so in certain circumstances, for example, if the issue is capable of repetition without review or if the circuit courts have no guides to decide the issue presented. See State v. Gray, 225 Wis. 2d 39, 66, 590 N.W.2d 918, 932 (1999) (citing State ex rel. La Crosse Tribune v. Circuit Ct., 115 Wis. 2d 220, 229, 340 N.W.2d 460, 464 (1983)).

H.D. Enterprises does not assert that Pick 'N Save's new license is invalid or that the council failed to follow proper procedure in granting this new license.¹ Accordingly, our decision regarding H.D. Enterprise's arguments that the City did not have authority to reconsider its previous denial of the license, or that it did not wait the mandatory fifteen days, will have no practical effect on the validity of Pick 'N Save's license. Because Pick 'N Save now holds a new license, the validity of which is not contested, these issues are moot. Therefore, we decline to address their merits.

Notice.

H.D. Enterprises also argues that the public notice for the City's February 10th meeting on the license did not contain enough specific information to adequately inform the public about the matter being addressed; and therefore, the City failed to comply with § 19.84(2), Stats. Under § 19.97(4), Stats., a person who is successful on the merits of such a claim may be awarded costs and reasonable attorney fees. Because of the remedies available to H.D. Enterprises, the notice issue is not moot. Therefore, we address its claim that the word, "licenses," was inadequate notice that the council would reconsider the denial of Pick 'N Save's license.

Section 19.84(2), Stats.,² requires that a public notice set forth the time, date, place and subject matter of a meeting in such form as is likely to reasonably apprise members of the public. H.D. Enterprises' claim that the notice was inadequate does not take issue with the sufficiency of notice regarding the date, place and time of the meeting. Rather, it contends that the notice failed to specify the subject matter of the meeting as required by the statute, because only the word, "licenses," appeared on the council's agenda.

Although the Wisconsin courts have had very few opportunities to determine what must be contained within a public notice in order to comply with the open meetings notice provisions, we did address the issue in State ex rel. Schaeve v. Van Lare, 125 Wis. 2d 40, 370 N.W.2d 271 (Ct. App. 1985). In that case, Schaeve, similar to H.D. Enterprises, argued that a public notice did not contain enough specific information to adequately inform the public of the subject matter of the hearing; and therefore, the Board of Education violated the open meetings statute. See id. at 47, 370 N.W.2d at 275. The notice at issue stated that the Board would "conduct a hearing to consider the possible discipline of a public employee." See id.3 We concluded that "[t]his information was specific enough to apprise members of the public as to the subject matter of the hearing," and we concluded that there was "no requirement in [§ 19.85(l)(b), Stats.,] that the subject matter of a meeting must be explained with any more specificity." See id.

Similar to Schaeve, we conclude the word, "licenses," was specific enough to apprise members of the public as to the subject matter of the meeting. There is no requirement in the statute that the subject matter' of a meeting be explained with any more specificity. We also note thát the first meeting which considered the application of Pick 'N Save was attended by H.D. Enterprises, and the agenda for that meeting also used only the word, "licenses," to indicate the subject matter of the hearing. Therefore, H.D. Enterprises had experience that the term "licenses" encompassed the council's discussion of liquor license applications. H.D. Enterprises did not complain at the time of the first meeting about a possible open meeting violation because of the lack of specificity with the agenda for the January 27th meeting.

Additionally, we decline to burden municipalities with an obligation to detail every issue that will be discussed under every agenda item during meetings when that is not mandated by statute. We agree with the Attorney General, who has opined that the general topic of items to be discussed is sufficient to satisfy the statute:

The basic thrust of the open meeting law is to provide the best notice available to the public of the nature of the governmental business which will be conducted. This policy does not, in my opinion, require exacting specificity. Thus, such general designations as "miscellaneous business" or "such other matters as may come before the body" are probably adequate notice to the press and the public that items not specifically listed on the agenda may be considered.

66 Op. Att'y Gen. 68, 70 (1977).⁴ The legislature may choose to mandate that a municipality must identify whose application for licensing it will consider at each meeting under the open meetings law. However, such a change is for the legislature, not this court.

CONCLUSION

We conclude that the City of Stoughton provided adequate notice of its agenda for the common council meeting under § 19.84(2), STATS., and that it did not violate the open meetings law. Accordingly, we affirm.

By the Court. — Order affirmed.

1 Accordingly, we make no determination whether the City's grant of the new license was proper.

2 Section 19.84(2), STATS., states in relevant part:

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.

3 Under the statutes in effect at the time, Schaeve was also entitled to actual notice of the evidentiary hearings to determine her termination. Schaeve did receive actual notice and was present at the meetings in question.

4 Although we acknowledge the dissent's concern, to require a municipality to list each individual request that may come before the board, or in the alternative to prove that consideration of the request was a late addition to the agenda, before discussion could occur, it would go beyond the statutory requirements and would create opportunities for additional litigation over the sufficiency of the notice.