3/5/2020 7:30:00 AM Our View Michael Bloom's Get-Out-of-Jail-Free Card
Gregg Walker and Richard Moore Publisher and Columnist
The recent decision by Oneida County circuit judge Michael Bloom to dismiss the walking quorum complaint against Rhinelander mayor Chris Frederickson and four city aldermen is a case study demonstrating both how good-old-boy politics still dominates in Oneida County and how the state's activist judges are, case by case, rewriting the state's open meetings and open records laws.
With some notable exceptions, the court files in Wisconsin over the past decade are rife with bad decisions undercutting transparency laws, from circuit courts to appeals courts to the Supreme Court.
We have to say, though, judge Bloom's decision ranks as one of the worst ever, a serious blight upon judicial sensibility.
From the outset, nobody on our side wanted either of Oneida County's judges to hear this case, but we could only substitute one of them. Both judges ooze good-old-boy sweat from their pores, and that courtroom aroma is the thick scent that comes from back rooms populated by muck-sweating, back-slapping winkers and shakers.
Judge Bloom could have done the honorable thing and recused himself, given his connections to Rhinelander, if not to some of the defendants. We wonder, too, if, as an officer of the court, judge Bloom interacted in prior cases involving Ryan Rossing, when Rossing worked for the sheriff's department.
Even if no real conflict of interest existed, there was certainly the appearance of one, but judge Bloom chose not to give up his seat in the good-old-boy lounge.
In any event, judge Bloom took it upon himself to exonerate five men whose admitted aim was to keep a very serious discussion about the future of Rhinelander council president George Kirby out of the public eye - in reality a confession that should have been all judge Bloom needed to at least deny dismissal of the charges and to let the case proceed to trial.
Remember, the judge dismissed the case rather than let the parties argue the case on its merits. He took it upon himself to short-circuit a more comprehensive arguing of why the defendants were guilty, in our view, and he did so in a way that could gravely injure the entire open meetings laws.
True, he took more than 30 pages to shut the door on open government in Rhinelander and beyond, but a lot of the decision was just repetitious. We don't know why the judge repeated himself so much, whether he could not remember what he had written two pages before or whether he simply wanted to repeat his legal fallacies and illogical fantasies until something stuck, but in the end the only message really repeated is how opposed to open government judge Bloom is.
That he did not allow a case with important statewide ramifications to proceed shows how badly he wanted to appease his good-old-boy friends. He simply wasn't interested in allowing any more scrutiny of the defendants' conduct.
As to the decision itself, first there is the absurd conclusion - and his rewriting of the law - that government business isn't really government business unless it involves a specific proposal requiring a vote by a governing body.
We'll get to that absurdity in a moment but for now it is enough to know that even if that's true - it isn't - but even if that were true, there was still a walking quorum violation in signing and sending the letter, and judge Bloom had to engage in downright inaccuracies and omissions to reach an opposite conclusion.
First, he claimed the letter merely asked Kirby to ponder his role as council president and the contents did not get at any proposition that would require a formal vote by the common council to implement. So, nothing to vote on, no government business and no violation.
But that's not true. As we have reported, the contents of the letter did more than ask questions. It formed a majority judgment about the performance of the city council president, that his conduct did not "reflect the level of leadership we are looking for from a seasoned, experienced elected official, such as yourself."
The common council controls the position of council president, and a majority of the council rendered judgment on his performance. That is without question the public's business and it is a proposition that should have been voted on by the entire council, even if in a closed but noticed session.
Second, the decision to draft, edit, sign, and send the letter should have itself gone to the council to see if sending a letter reprimanding his conduct was warranted. Again, this is the council's business and as such it is the public's business.
But, in an argument that would embarrass a first-year law student, Bloom outrageously concludes that only three aldermen were involved in discussions leading up to the drafting of the letter, while a fourth only later read it and signed it.
Somehow judge Bloom concludes that only those actually involved in the discussions leading up to the drafting and signing of the letter count toward a walking quorum, not someone who just signed it later, and, since three wasn't a majority, there could be no walking quorum.
If there is an award for judicial silliness - how long did it take him to think that up? - judge Bloom wins it, and we'll even attend the Goofball Gavel awards to help him celebrate. For while the judge liked to quote the Conta decision in his ruling, he forgot to read one very important way that officials can commit a walking quorum, according to Conta, and that is "by a decision by a group of less than quorum size which has the tacit agreement and acquiescence of other members sufficient to reach a quorum."
To translate, the three aldermen Bloom cites, who were not a quorum, made a decision to draft and compose the letter, and then they got the tacit agreement and acquiescence of another alderman to sign the letter, and that was sufficient to reach a quorum.
That's pretty basic stuff, but judge Bloom missed it.
In the larger realm, judge Bloom rewrites the substance of the entire open meetings law. Case law lays out what a meeting under the open meetings law is - there must be a purpose to engage in governmental business, be it discussion, decision or information gathering.
Mr. Bloom rewrites that to add the requirement of a formal vote, which we put in italics: "There must be a purpose to engage in governmental business, be it discussion, decision or information gathering that will ultimately require a formal vote of the governmental body in order to implement.
The problem is, that's not what the case law says, and it's not what the statute says, either. Here's the statutory definition of a meeting: "'Meeting' means the convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body."
The word 'vote' isn't in there, and clearly a governmental body can engage in governmental business - exercising its responsibilities, authority, power or duties - in many ways in addition to formally voting.
As we have reported, the Department of Justice understands this. In its training sessions in 2019, it defines governmental business in much broader terms: "'Conducting governmental business' is an expansive concept that is not limited to formal or final decision making," the DOJ training states, expressly contradicting judge Bloom. "'Conducting governmental business' includes: preliminary decisions, discussion, information gathering."
The Wisconsin Bar Association also defines it broadly: "If a governmental body meets to discuss an issue, make a decision, or gather information about a subject related to a governmental body's realm of authority, the purpose of the gathering is to conduct governmental business."
Note that making information gathering and discussing issues is separate and apart from decision making, meaning decision making is not required to make a meeting governmental business.
And, finally, there is an attorney general's 1982 opinion that a Senate Special Committee on Reapportionment likely violated the open meetings law in 1981 when it did not post a meeting even though "there was never any intention prior to the gathering to attempt to debate any matter of policy, to reach agreement on differences, to make any decisions on any bill or part thereof, to take any votes, or to resolve substantive differences" and in fact during the meeting none of that occurred.
So even though there was no formal vote and nothing discussed that required a formal vote, a violation occurred.
We could cite other examples but the point is clear: Judge Bloom simply waded into waters far over his head, and issued an opinion of breathtaking incompetence.
It legitimizes walking quorums and encourages officials to avoid putting controversial topics on agendas for public discussion. After all, why put a matter on an agenda, making it formal and thus subjecting officials to open meetings violations if they collude before that meeting, when not putting the matter on an agenda or pursuing a vote relieves those officials of guilt if they collude in private.
Here's how absurd it is: According to Bloom, the Rhinelander defendants would not be guilty of a walking quorum by writing a letter of reprimand because there was no existing proposal requiring a vote to officially reprimand the council president. So a council majority and the mayor can get together, in a series of sub-quorum meetings, and sign a letter of rebuke and call for the council president's resignation, and there's no violation because, in judge Bloom's mind, that's not government business.
But, if they put on an agenda an item for the council to send the same letter to the council president, and then before the meeting a council majority and the mayor get together, in a series of sub-quorum meetings, and agree to vote to send the letter of rebuke, well, then there is a violation because that is government business.
Except for putting the item on an agenda, the facts and the collusion are the same in each scenario. The only difference is that in the first scenario, hiding what you're actually doing from the public protects you - you can avoid breaking the open meetings law by breaking the open meetings law, you get a get-out-of-jail fee card.
So why would officials put things on agendas if they can just carry out government business in secrecy?
In judge Bloom's world, the public is shut off from ever more discussion about government topics that affect them. Under his decision, a majority of the Oneida County board can convene privately to discuss the future of the highway department - including the possibility of a new facility - so long as no formal vote is being proposed.
All this is so much nonsense, and we suspect Mr. Bloom knows it. We suspect he just threw a sop to his good-old-boy buddies. Maybe not, though, but if this is what he really thinks, Oneida County's justice system is a lot scarier than we thought.
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