STATE OF WISCONSIN CIRCUIT COURT WAUKESHA COUNTY

CIVIL DIVISION

State of Wisconsin ex rel., 114 E. State Capitol, Madison, WI 53707,

Sharon Roder, 1847 Haymarket Road, Waukesha, WI 53189,

William J. Craig, W232 S8545 Chateau Ln., Big Bend, WI 53103,

Carol J. Craig, W232 S8545 Chateau Ln., Big Bend, WI 53103,

Keith Roder, 1847 Haymarket Rd., Waukesha, WI 53189,

John Maney, W224 S10280 Big Bend Dr., Big Bend, WI 53103,

Rose Maney, W224 S10280 Big Bend Dr., Big Bend, WI 53103,

Janet L. Harder, S85 W23175 Chateau Ln., Big Bend, WI 53103,

Carole G. Sayer, W180 S8010 Pioneer Dr., Muskego, WI 53150,

Aaron Barnickel, S98 W24010 Forest Home Ave., Big Bend, WI 53103,

Darrel Boehm, W231 S8605 Villa Dr., Big Bend, WI 53103,

Sharon Ladwig, W231 S5937 Molla Dr., Waukesha, WI 53189,

Carl Posbrig, W188 S9707 Parker Dr., Muskego, WI 53150, Case No. 14CV00398

Bonnie Posbrig, W188 S9707 Parker Dr., Muskego, WI 53150,

Joseph Peterson, W224 S7530 Big Bend Dr., Big Bend, WI 53103,

Elizabeth Peterson, W224 S7530 Big Bend Dr., Big Bend, WI 53103,

Wayne Salentine, S79 W20465 Tyler Dr., Muskego, WI 53150,

Arlene Salentine, S79 W20465 Tyler Dr., Muskego, WI 53150,

Carol Porter, S102 W25985 Maple Ave., Mukwonago, WI 53149,

George Porter, S102 W25985 Maple Ave., Mukwonago, WI 53149,

Charles Jagunt, S85 W23280 Bullrush Ct., Big Bend, WI 53103,

Patricia Jagunt, S85 W23280 Bullrush Ct., Big Bend, WI 53103,

Thomas Rand, S86 W23305 Woodbury Lane, Big Bend, WI 53103,

Nancy Rand, S86 W23305 Woodbury Lane, Big Bend, WI 53103,

John Kleis, W254 S5920 Oakdale Dr., Waukesha, WI 53189,

Sandra Wanasek, W22 S0475 Big Bend Dr., Big Bend, WI 53103,

Warren Jacobi, S95 W23220 Forest Home Ave., Big Bend, 53103,

Ronald Reinke, S95 W23475 Forest Home Ave., Big Bend, WI 53103,

Jerome Washicheck, S90 W22785 Milwaukee Ave., Big Bend, WI 53103,

Lynn Pfeil, S95 W23590 Forest Home Ave., Big Bend, WI 53103,

George White, S88 W22525 Glen Haven Ct., Big Bend, WI 53103,

Ruth White, S88 W22525 Glen Haven Ct., Big Bend, WI 53103,

Christine Miller, W185 S9550 Parker Dr., Muskego, WI 53150,

James Bourdo, W224 S10550 Big Bend Dr., Big Bend, WI 53103,

Suzanne Bourdo, W224 S10550 Big Bend Dr., Big Bend, WI 53103,

Plaintiffs,

-vs-

Frederick Latzke, 2710-C S. Shore Drive, Milwaukee, WI 53217, Case Code: 30704

Catherine Alba, 6610 S. 122nd Street, Franklin, WI 53132,

Richard Riesch, 9115 W. Bottsford Ave., Greenfield, WI 53228,

James Soneberg, S90 W22970 Rose Ave., Big Bend, WI 53103,

Barbara Woppert, S105 W22860 River Ave., Big Bend, WI 53103,

Leah Fickau, W228 S8910 Jackson Parkway, Big Bend, WI 53103,

David Treichel, W229 S8905 Jackson Parkway, Big Bend, WI 53103,

Michael Conn, W228 S8960 Jackson Parkway, Big Bend, WI 53103,

Robert Heinemann, W230 S9085 Clark Street, Big Bend, WI 53103,

Ronald Peterson, S91 W22935 Milwaukee Ave., Big Bend, WI 53103,

Keith Peterson, W233 S8785 Meadow Lane, Big Bend, WI 53103,

Village of Big Bend, W230 S9185 Nevins Street, Big Bend, WI 52103

Defendants.

______________________________________________________________________________

AMENDED COMPLAINT

______________________________________________________________________________

NOW COME the plaintiffs named above, by their attorney Nancy Phelps of Nancy Phelps,

Attorney at Law, S.C., and as and for a cause of action against the defendants named above,

allege and show to the Court as follows:

1. The plaintiff, State of Wisconsin, is a necessary party pursuant to Wis. Stats. 19.97(4)

inasmuch as plaintiffs are alleging a Wisconsin Open Meetings Law violation and are bringing

this action for enforcement under Wis. Stats. 19.97(1), (2) and (3) in the name of and on behalf

of the State of Wisconsin because of alleged violations under Wis. Stats. 19.82(1), (2) and (3);

19.83; 19.84; and 19.96.

2. The following plaintiffs are adult residents of Waukesha County and plot holders, or

descendents of plot holders, of the Rural Home Cemetery of the Town of Vernon, Waukesha

County, Wisconsin:

a) William J. Craig, W232 S8545 Chateau Ln., Big Bend, WI 53103

b) Carol J. Craig, W232 S8545 Chateau Ln., Big Bend, WI 53103

c) Sharon Roder, 1847 Haymarket Rd., Waukesha, WI 53189

d) Keith Roder, 1847 Haymarket Rd., Waukesha, WI 53189

e) John Maney, W224 S10280 Big Bend Dr., Big Bend, WI 53103

f) Rose Maney, W224 S10280 Big Bend Dr., Big Bend, WI 53103

g) Janet L. Harder, S85 W23175 Chateau Ln., Big Bend, WI 53103

h) Carole G. Sayer, W180 S8010 Pioneer Dr., Muskego, WI 53150

i) Aaron Barnickel, S98 W24010 Forest Home Ave., Big Bend, WI 53103

j) Darrel Boehm, W231 S8605 Villa Dr., Big Bend, WI 53103

k) Sharon Ladwig, W231 S5937 Molla Dr., Waukesha, WI 53189

l) Carl Posbrig, W188 S9707 Parker Dr., Muskego, WI 53150

m) Bonnie Posbrig, W188 S9707 Parker Dr., Muskego, WI 53150

n) Joseph Peterson, W224 S7530 Big Bend Dr., Big Bend, WI 53103

o) Elizabeth Peterson, W224 S7530 Big Bend Dr., Big Bend, WI 53103

p) Wayne Salentine, S79 W20465 Tyler Dr., Muskego, WI 53150

q) Arlene Salentine, S79 W20465 Tyler Dr., Muskego, WI 53150

r) Carol Porter, S102 W25985 Maple Ave., Mukwonago, WI 53149

s) George Porter, S102 W25985 Maple Ave., Mukwonago, WI 53149

t) Charles Jagunt, S85 W23280 Bullrush Ct., Big Bend, WI 53103

u) Patricia Jagunt, S85 W23280 Bullrush Ct., Big Bend, WI 53103

v) Thomas Rand, S86 W23305 Woodbury Lane, Big Bend, WI 53103

w) Nancy Rand, S86 W23305 Woodbury Lane, Big Bend, WI 53103

x) John Kleis, W254 S5920 Oakdale Dr., Waukesha, WI 53189

y) Sandra Wanasek, W22 S0475 Big Bend Dr., Big Bend, WI 53103

z) Warren Jacobi, S95 W23220 Forest Home Ave., Big Bend, 53103

aa) Ronald Reinke, S95 W23475 Forest Home Ave., Big Bend, WI 53103

bb) Jerome Washicheck, S90 W22785 Milwaukee Ave., Big Bend, WI 53103

cc) Lynn Pfeil, S95 W23590 Forest Home Ave., Big Bend, WI 53103

dd) George White, S88 W22525 Glen Haven Ct., Big Bend, WI 53103

ee) Ruth White, S88 W22525 Glen Haven Ct., Big Bend, WI 53103

ff) Christine Miller, W185 S9550 Parker Dr., Muskego, WI 53150

gg) James Bourdo, W224 S10550 Big Bend Dr., Big Bend, WI 53103

hh) Suzanne Bourdo, W224 S10550 Big Bend Dr., Big Bend, WI 53103

3. Defendants are adult officers and/or trustees of the Rural Home Cemetery Association

and/or Trustees, officers or employees of the Village of Big Bend, Waukesha

County, as follows:

a) Frederick Latzke is the President, Secretary and Treasurer of the Rural Home Cemetery

Association and resides in Milwaukee County at 2710-C South Shore Drive, Milwaukee,

Wisconsin 53207;

b) Catherine Alba is a Trustee of the Rural Home Cemetery Association and resides in

Milwaukee County at 6610 S. 122nd Street, Franklin, WI 53132;

c) Richard Riesch is an officer of the Rural Home Cemetery Association and resides in

Milwaukee County at 9115 W. Bottsford Ave., Greenfield, WI 53228;

d) James Soneberg is the President of the Village of Big Bend, one of three members on the

Village of Big Bend Finance Committee and resides in Waukesha County at S90 W22970 Rose

Ave., Big Bend, WI 53103;

e) Barbara Woppert is the Big Bend Village Clerk and resides in Waukesha County at

S105 W22860 River Ave., Big Bend, WI 53103;

f) Leah Fickau is a Trustee of the Village of Big Bend, one of three members of the

Village of Big Bend Finance Committee and resides in Waukesha County at W228 S8910

Jackson Parkway, Big Bend, WI 53103;

g) David Treichel is a Trustee of the Village of Big Bend and resides in Waukesha

County at W229 S8905 Jackson Parkway, Big Bend, WI 53103;

h) Michael Conn is a Trustee of the Village of Big Bend and resides in Waukesha

County at W228 S8960 Jackson Parkway, Big Bend, WI 53103;

i) Robert Heinemann is a Trustee of the Village of Big Bend and resides in Waukesha

County at W230 S9085 Clark Street, Big Bend, WI 53103;

j) Ronald Peterson is a Trustee of the Village of Big Bend and resides in Waukesha

County at S91 W22935 Milwaukee Ave., Big Bend, WI 53103;

k) Keith Peterson is a Trustee of the Village of Big Bend and resides in Waukesha

County at W233 S8785 Meadow Lane, Big Bend, WI 53103;

l) The Village of Big Bend is, upon information and belief, a governmental municipal

entity, created under the laws of the State of Wisconsin, with its principal place of business

located at W230 S9185 Nevins Street, Big Bend, WI 53103 and is to serve the residents of the

Village of Big Bend.

4. Rural Home Cemetery is located in the Town of Vernon, Waukesha County with

address of S96 W23480 Forest Home Avenue, bordered by the Fox River on the north, County

Highway L on the south, just west of River Oaks Drive and just east of Klein Lane, and was

created with by-laws on June 1, 1872 as the Rural Home Association, although there are burials

therein years prior to that date, with a name change to the Rural Home Cemetery Association on

May 4, 1992. (See Exhibit 1 - 1872 By-Laws)

5. Rural Home Cemetery (hereinafter the "Cemetery") is a thriving, bucolic country

cemetery with over 1,000 graves in addition to countless and numerous plot holders.

6. That upon information and belief, on October 28, 2013, plaintiff William J. Craig

(hereinafter "Craig") and John Maney (hereinafter "Maney"), who both live in the Town of

Vernon, saw a notice posted at Citizen's Bank in Big Bend with the agenda for the Big Bend

Department of Public Works (hereinafter "DPW") meeting for that day referring to maintenance

of Rural Home Cemetery as an agenda item. Since the Rural Home Cemetery is located in the

Town of Vernon, not in the Village of Big Bend (hereinafter the "Village" or "Big Bend"), both

said plaintiffs and plaintiff Sharon Roder (hereinafter "Roder") attended the meeting.

7. Upon information and belief at said meeting on October 28, 2013 the Big Bend Village

Clerk, defendant Barbara Woppert (hereinafter "Woppert") told plaintiff Craig that Big Bend was

"taking over the cemetery;" Craig asked if it was an annexation and the response was "no" but

that "the paper work is in Madison and when we get it back it will be a done deal." (See Exhibit

2 attached)

8. At said meeting when plaintiff Craig said that the cemetery was in the Town of

Vernon, not the Village of Big Bend, upon information and belief defendant and Trustee Keith

Peterson said "the Town of Vernon doesn't want it," to which plaintiff Craig told Keith Peterson

that he (Craig) has been on the Town of Vernon board for the last five years and the issue of the

Rural Home Cemetery has never been brought to or discussed by the Town of Vernon Board.

9. Trustee Keith Peterson then said upon information and belief that "Fred Latzke [a

defendant herein and the cemetery association president] said the Town of Vernon doesn't want

it." Keith Peterson further stated that Fred Latzke claimed that the Cemetery was "abandoned."

10. On or about October 29, 2013, upon information and belief Craig called the Cemetery

President, Frederick Latzke (hereinafter "Latzke") and asked him why Big Bend was involved

with the Rural Home Cemetery. Latzke replied that the cemetery was being transferred to Big

Bend. When Craig asked "Why?" Latzke stated that "it has been abandoned." When Craig said

"What? What do you mean abandoned?" Latzke said "No one can be found to cut the grass."

Craig then said "Why didn't you contact me since you called me several years ago when you

needed help to plow snow?" Craig then told Latzke that he passed the cemetery several times a

week and numerous people are seen visiting the graves, some on a daily basis. Latzke then said

"I have to go, I am at work" and hung up.

11. It was subsequently discovered by plaintiff Maney in a Village of Big Bend

Environmental Impacts Statement (Preliminary Draft page 22 and Table 2 attached as Exhibit 3)

that in 2009 the Village was exploring alternative locations for construction of a wastewater

treatment plant, including alternative number 2 of crossing the Fox River and going through the

cemetery. Table 2 attached indicates that $3,400,000 was allocated for "land acquisition," thus

possibly explaining why "maintenance of Rural Home Cemetery" was on the Big Bend DPW

meeting agenda for October 28, 2013.

12. It was also subsequently discovered that on July 11, 2013 there was a "Resolution

Accepting Transfer......." of the "Cemetery" and its trust funds to the "Village," (Exhibit 4

attached) allegedly without any notice to the "Cemetery" plot holders or the Town of Vernon.

13. It was also subsequently discovered that on September 4, 2013, defendant Latzke, as

President of the Rural Home Cemetery Association, sent a letter to the Wisconsin Department of

Safety and Professional Services (copy of letter attached as Exhibit 5) asking for approval of

said transfer, also allegedly without any notice to the plot holders.

14. On November 15, 2013 plaintiff Craig sent a letter (copy attached as Exhibit 6) to the

Wisconsin Department of Safety and Professional Services (hereinafter "DSPS"), asking that a

"hold" be put on any transfer of the Rural Home Cemetery to the Village of Big Bend.

15. That on November 18, 2013, Craig, Maney and Thomas Bird each individually

prepared and filed a complaint with the Department of Safety and Professional Services,

Division of Legal Services and Compliance, alleging mismanagement of the Rural Home

Cemetery and lack of notice to plot holders of the transfer of the Cemetery to the Village of Big

Bend. (See attached Complaint marked as Exhibit 7.) In addition to Craig, Maney and Thomas

Bird's complaints, upon information and belief another approximately 30 plot holders have since

filed Complaint Forms with the Division of Legal Services and Compliance in Madison, but

nothing has yet been determined.

16. Upon information and belief on November 19, 2013 Craig and Roder and concerned

Town of Vernon citizen Thomas Bird went to a meeting of the State Cemetery Board in Madison

at the Department of Safety and Professional Services, which had on its agenda "G. Application

Matters, 1. Conveyance of Rural Home Cemetery to Village of Big Bend" (see Agenda attached

as Exhibit 8).

17. On this date and place at the meeting held by the State Cemetery Board, Craig and

Thomas Bird made statements and inquiries about the legality of the conveyance of the Rural

Home Cemetery from the attached list made by Craig (Exhibit 9) before the meeting. The State

Cemetery Board went into a closed session thereafter and never went back to open session to

vote on the Rural Home Cemetery conveyance. Upon information and belief Craig was notified

later that afternoon by one Brittany Lewin that the State Cemetery Board had approved the

conveyance and that the issue was decided before the meeting. Ms. Lewin said "I have good

news and bad news. The bad news is the Cemetery transfer was approved, but the good news is

that your three complaints " were sent to legal services for investigation.

18. An Open Records request was made on January 8, 2014 to the "Village" (see Exhibit

10 attached) for information as to the transfer of the "Cemetery" and the finances of the

"Cemetery," along with other requests and upon information and belief Craig received only the

information for the first two items requested and a partial plat map of the "Cemetery" in response

to item 3.

19. On February 11, 2014 another request was made through the Open Records law for

the balance of the information asked for in the January 8, 2014 request with an email response

from the "Village" Clerk defendant Woppert (see attached Exhibit 11) indicating "I don't have

time to look up this information If you or whomever is requesting this would like to come here,

I'll open the file cabinet and you or whomever, can go through and I will make copies (at $.25

each) of anything you wish." Plaintiffs were unsure of any liability if they just "went through"

the files and thus had not done so at that time, as they felt, once again, the proper procedure

should be followed and they did not want to be accused of taking or damaging records.

20. Upon information and belief, on January 30, 2014 plaintiff Maney talked to defendant

Latzke, the Cemetery Association President, and asked Latzke for copies of any by-laws, rules

and regulations and policies and procedure, Latzke said he would send them to said Maney, but

has never done so to this date. Maney also asked Latzke, "When is Big Bend taking over," and

Latzke did not answer. Several other plot holders, such as Darrel Boehm and Edward Hall, have

made similar requests of Latzke and have never received responses.

21. Upon information and belief, on February 5, 2014, plaintiff Roder emailed Latzke

and said she was a plot owner of the Cemetery and asked him if there were any by-laws for the

Cemetery and he responded on the same date that she should ask the Village of Big Bend and

"Take the time to find out the truth and not left over hard feelings between communities and their

fire department squabbles." (See attached email marked as Exhibit12.) Roder was never given

an answer to her question about by-laws and, in addition, does not live in Big Bend or the Town

of Vernon, so is unclear as to what Latzke's response means.

22. Upon information and belief, plaintiff Maney attended a "Village" meeting on

February 6, 2014 and asked the Trustees to hold off on transferring the "Cemetery" until all plot

holders could be heard and have their questions answered at a public hearing before the Village

of Big Bend accepted ownership of the Cemetery and was told by defendant Village President

Soneberg words and phrases such as "no debate - all done," "we are well beyond it," "we will not

debate," "it is off the agenda," "approval is all in place," "the Cemetery is abandoned", "it is now

run by the Village," "we have taken over maintenance," and "we will not answer questions."

23. It is important to note that after Latzke made the comments about the Cemetery being

"abandoned" and the Village of Big Bend accepted the transfer of the Cemetery from Latzke

and/or the Rural Home Cemetery Association, upon information and belief Latzke sold at least 6

more plots for $600 each and there have been at least 3 burials in the Cemetery since that time.

This cemetery definitely does not meet any legal definition of "abandoned."

24. According to the original Cemetery by-laws of June 1, 1872 (Exhibit 1), and the

current By-Laws from 1992 (Exhibit 13, Article III, Section 2), annual meetings are to be held

on the second Monday in January of each year. A perusal of State of Wisconsin Annual Reports

of a Cemetery Association records indicate that from 1992 to 2013, annual meetings were never

held in January, but in November, April, October, September and August and in several years no

meetings were reported to be held. (See attached compilation of notes taken from the State of

Wisconsin records from 1992 to 2013 attached as Exhibit 14.)

25. Because it appears that the by-laws have not been followed as to holding Annual

Meetings, Wis. Stats. 157.062(4)(b) indicates that if annual meetings and annual elections are

not held within 60 days of the time fixed for them to be held, a judge of the county in which the

cemetery is located may order such a meeting by the request of five members. All of the

individual plaintiffs in this Amended Complaint are asking the court to so order.

26. It should also be noted that the by-laws indicate that there shall be three (3) Trustees

of the Cemetery Association (Exhibit 13, Article IV, Section 1), and according to the Annual

Reports filed from 1992 to 2013, either "0" or "1" Trustee was listed. (See copies of Annual

Reports that were filed with the Department in Madison from 1992 to 2013 attached as Exhibit

15.)

27. All of the so mentioned Annual Reports were signed by defendant Latzke, who lists

himself as the President, Treasurer and Secretary, or a combination of one or more of those

positions, or all three position in 2004. (See Exhibit 15) The Trustees and Officers that are

listed since 2006 are indicated as residing in Milwaukee County, and Latzke had a Milwaukee

County address since at least 1992.

28. Wis. Stats. 157.062(4)(a) and the Rural Home Cemetery Association By-Laws Article

IV, Section (Exhibit 13) indicate that trustees must be proprietors of plots held in the Cemetery

and then hold office for only three years. It is known that defendants Latzke, Alba and Riesch

are not now, and never were, owners of lots in the Rural Home Cemetery, and the same three

individuals have been trustees and officers for over eight years, and Latzke the president since

1988, all according to his sworn testimony in his deposition of July 7, 2014 on file herein, all in

violation of the cemetery by-laws and the Wisconsin Statutes.

29. Upon information and belief there were never any meetings/elections to nominate and

elect the officers and trustees from 1992 to 2013 as is mandated in the original By-Laws of 1872

(Exhibit 1) and the 1992 Cemetery by-laws (Exhibit 13, Article V) and the Wis. Stats.

157.062(4)(a) and plaintiffs' two open records request has not provided proof of any such

meetings or elections.

30. Wis. Stats. 157.062(4)(a) indicate that the Annual Meetings and special meetings are

to be held in the County where the Cemetery is located and upon public notice. According to the

Annual Reports (Exhibit 15) such meetings in 2012 and 2006 were held in Milwaukee County

and no location was identified in Annual Reports from 1992, 1993, 1994 and 1996. No

meetings were held in 2005, 2003 and 1997; and two Annual Reports both indicated the same

meeting date, i.e. February 7, 1996, and each report had different information in each one. This

information was gathered from the State of Wisconsin Department of Financial Institutions in

Madison pursuant to the Open Records Law. (See Exhibit 15)

31. "Public notice" as mandated for annual meetings and special meetings pursuant to

Wis. Stats. 985.07(3)(a) and (b) indicates that a Class 3 notice (published 3 times) is to be

followed if legal notices are not otherwise designated. Upon information and belief the

individual plaintiffs state that the notice requirements have not been properly met for the

Cemetery Association by Latzke, Alba and Riesch. Upon information and belief plaintiffs have

not been able to locate any Class 3 notices having been given for any meetings, including on the

issue of the transfer of the Cemetery.

32. Upon information and belief, if the annual meetings had been held when prescribed by

the by-laws at the same time each year, the plot holders would have known when the meetings

were, as obviously was the wisdom in so setting meetings, and there would not have been

confusion or no knowledge at all of holding of meetings. It should also be noted that Latzke

admitted under oath that he never told new plot holders that there were cemetery by-laws and

never gave plot holders copies of the cemetery by-laws. (Latzke deposition of July 7, 2014 on

file)

33. A perusal of Exhibit 14, the State Annual Cemetery Reports, indicates the Cemetery

had only one trustee and two officers over the years, which is in violation of the Cemetery's

original and 1992 by-laws (Exhibit 13, Article IV, Section 1) and the Wisconsin Statutes,

indicating there should be three.

34. Upon information and belief the Cemetery was wrongly taken from the cemetery plot

holders by the Village and that Latzke, Alba and Riesch, as the Rural Home Cemetery

Association, did not have the authority to "give it" to the Village of Big Bend, and also for no

apparent consideration, which is mandated in Wis. Stats. 157.061(16) - "'Sale' means a transfer

for consideration [emphasis added] of any interest in ownership, title or right to use."

35. That upon information and belief, in approximately 2010 the Cemetery finished

paying for the purchase of approximately 6.4 additional acres for the sum of $102,584 plus 9%

interest (see attached Land Contract and Warranty Deed marked as Exhibit 16) for which the

Rural Home Cemetery has allegedly not been compensated by the Village of Big Bend. The

land is not being used for burials.

36. Defendant Latzke admitted under oath in his deposition of July 7, 2014, which is on

file herein, that he never had a cemetery or association meeting to decide if this land (hereinafter

the "Klein Addition") should be purchased, never had an appraisal to determine the value of the

land, and then used most of the Rural Home Cemetery Association Perpetual Care Trust Funds,

without state permission, or plot holder permission, to pay for said land, which including interest

cost a total of $148,318.18. (See attached log of payments - Exhibit 17 - for the land contract

handwritten by Latzke as he acknowledged in his deposition of July 7, 2014 on file herein.)

37. Wis. Stats. Sec. 157.11(9g)(a)(2) and Wis. Stats. Sec. 157.19(2)(b) mandate that

anything except interest on the Perpetual Care Trust Fund must have the Wisconsin DSPS

permission. Before principal is used even for maintenance and care of a cemetery, and for every

other reason, permission must be given by the DSPD. The Waukesha State Bank and "Cemetery

Care Fund Trust Agreement" heading III, Exhibit 18, indicate the same. Latzke admitted under

oath in his deposition of July 7, 2014 on file herein, that he never obtained any permission to use

the Rural Home Cemetery Association Perpetual Care Trust Funds. Plaintiffs as plot holders

have at the very least an equitable right to the benefit of what should be in this fund.

38. Upon information and belief, the said 6.4 acres of land purchased by Latzke

apparently does not lend itself as an addition to the cemetery. The elevation of the existing

developed cemetery appears to be 10-12 feet higher than the 6.4 acres purchased. Upon

information and belief, the grade difference does not lend itself to simply changing the slope.

Also upon information and belief, any type of filling, or landfill, would be prohibited for

placement of graves.

39. The attached two GIS maps (marked as Exhibit 19) show the Rural Home Cemetery

with access only from Highway L, and the Klein Addition outlined in blue. Upon information

and belief, because of the deep drop-off between the two areas, the only option for access to the

new site would be to travel approximately 1/2 mile west of the Cemetery and turn north onto

Klein Lane, then travel back east on Kunzendorf Court to the end of the cul de sac, which

appears to abut the 6.4 acre parcel of additional Cemetery property. Upon information and

belief, this would result in having funeral processions, regular visitors, maintenance crews and

grave digging equipment travel through a subdivision to access the area, which undoubtedly

would be unacceptable to the property owners in that subdivision.

40. Attached as Exhibit 20 are "Minutes of the Special Meeting of the RURAL HOME

CEMETERY ASSOCIATION - April 27, 2013." This meeting was attended by the three Rural

Home Cemetery Association members, i.e. Latzke, Riesch and Alba, the Soneberg family (Jim,

Sadie, John) and the Fickau family (Nancy, Leah, Paul). "A motion to have the Board of the

Village of Big Bend become the trustee and to convey all cemetery land and trust funds, upon

approval of the Village's trustees on or about June 1, 2013 was presented by Fred Latzke,

seconded by Nancy and Paul Fickau. Passed unanimously."

41. Exhibit 21 is the text of the Mukwonago Chief publication notice of the April 27,

2013 meeting which was to be held at "W230 S9185 Nevins St., Big Bend, WI." which upon

information and belief is the Village of Big Bend Hall, and the first time since Latzke was

president of the cemetery Association that a Cemetery meeting was held in Big Bend according

to a perusal of Exhibit 15.

42. Exhibit 21 also states that the meeting "will consider the transfer of trusteeship to the

Village of Big Bend." Nowhere in the notice does it indicate the meeting will consider a

transfer of the cemetery and all of its asset to Big Bend.

43. Exhibit 20, the April 27, 2013 meeting minutes state: "A strong fiscal year was

noted," but then goes on to say that "Chapter 157 of the Wisconsin Statute was cited that refers

to abandoned cemeteries become the responsibility of the municipality it resides in." Upon

information and belief the Rural Home Cemetery is in the Town of Vernon, not Big Bend. If this

cemetery was indeed in trouble financially and it was "abandoned," even though the minutes

noted that it had a "strong fiscal year," Wis. Stats. 157.062(7) allows the cemetery to ask for help

from the municipality it is in, i.e. the Town of Vernon, not Big Bend.

44. Exhibit 22 indicates that James Soneberg and Leah Fickau, who attended the April

27, 2013 meeting (Exhibit 20) and voted for the transfer of the Rural Home Cemetery to Big

Bend, are two of a three-person Finance Committee for the Village of Big Bend. (See

Exhibit 22 attached)

45. Upon information and belief there was no public notice given under Wis. Stats. 19.84

that a majority of the Village of Big Bend Finance Committee would be meeting on April 27,

2013 to decide financial matters affecting the Village of Big Bend (Exhibit 20), in violation of

the Wisconsin Open Meetings Law as to the Village of Big Bend.

46. That pursuant to Wis. Stats. 19.82(1), (2) and (3) and Sec. 19.83, the April 27, 2013

meeting was a governmental body meeting subject to the Wisconsin Open Meetings Law as to

the Village of Big Bend.

47. The attached Exhibit 23 is a verified complaint by plaintiff Sharon Roder dated April

11, 2014 to Waukesha County District Attorney Brad Schimel, concerning her concerns of a

Special Meeting of the Rural Home Cemetery Association on April 27, 2013 (Exhibit 20)

attended by defendants Soneberg and Fickau and what she perceived was a violation of the

Wisconsin Open Meetings Law.

48. Attached Exhibit 24 is Waukesha County District Attorney Brad Schimel's response

dated April 17, 2014 to plaintiff Roder indicating he found no Open Records violation as a result

of the Cemetery April 27, 2013 meeting and the attendance of Soneberg and Fickau.

49. Attached Exhibit 25 is a letter from Assistant Attorney General Bruce A. Olsen

concerning plaintiff Roder's verified complaint to the Waukesha County District Attorney

(Exhibit 23) and the District Attorney's response in not finding a violation of the Open Meetings

Law (Exhibit 24), and Roder's options in pursuing the matter.

50. Upon information and belief, defendant Village of Big Bend has already received

approximately $16,000 of Cemetery operating account funds and the Perpetual Care Trust Fund

of the Cemetery has another approximately $16,000 balance and plaintiffs allege the Village of

Big Bend will use said funds for their general purposes, not for the Cemetery.

51. That pursuant to Wis. Stats. 157.062(7) and 157.011(5) Big Bend could assess the

Cemetery plot holders for future maintenance of the Cemetery.

52. Upon information and belief that because they had tried all avenues known to them

short of a lawsuit and received no answers or satisfaction, the above-named individual plaintiffs

filed a request for a Temporary Restraining Order and Notice of Injunction Hearing, along with a

supporting Petition for Temporary Restraining Order/Injunction and/or Petition and Motion for

Injunction Hearing, against the above-named defendants, except the Village of Big Bend, on

February 24, 2014, and the Temporary Restraining Order and Notice of Injunction Hearing was

signed by the Honorable Lee S. Dreyfus, Jr. on February 24, 2014 and a hearing was ordered for

March 12, 2014 on the request to make the restraining order/injunction permanent.

53. That defendant Frederick Latzke's attorney, Michael D. Schumann; and defendants

James Soneberg, Barbara Woppert, Leah Fickau, David Treichel, Michael Conn, Robert

Heinemann, Ronald Peterson and Keith Peterson's attorneys, Crivello Carlson, S.C. by Remzy D.

Bitar and Benjamin A. Sparks requested an adjournment of the hearing set for March 12, 2014

and drafted a Stipulation and Order that was signed by counsel and by the Court on March 11,

2014, with the hearing being adjourned to June 3, 2014.

54. Attached as Exhibit 26 are five different example of deeds given to plot holders over

the years, giving them varying degrees of an interest in real estate in the Rural Home Cemetery:

a deed from 1896 which is entitled "Warranty Deed;" a deed from 1912 stating that "parties of

the second part" are being sold "real estate;" a deed from 1927 that has all the verbiage of a

Warranty Deed; a deed from 1944 which is again actually called a "Warranty Deed;" and, a new

Rural Home Cemetery Deed" from 2006 that is signed by Fred Latzke but not notarized, which

may mean it is not valid. Upon information and belief the fact that some of the deeds indicate

the plot is for "burial purposes only" does not in itself mean the buyer did not purchase a small

piece of real estate but only that it is to be used for that specific reason.

FIRST CAUSE OF ACTION: CONVERSION

55. Plaintiffs re-allege and reassert paragraphs 1 through 54 as if fully set forth herein

56. That the plaintiffs, as plot holders of the Rural Home Cemetery Association, were the

lawful owners of the property and assets of said Cemetery and had possession of said Cemetery

at the time it was transferred and deeded to the Village of Big Bend.

57. That the defendants and/or the Village of Big Bend, and by virtue of their positions,

upon information and belief, did not remunerate the individual plaintiffs for receipt of the Rural

Home Cemetery's said assets, property and real estate, but upon information and belief said

transfer is for the benefit, help, aid, gain and profit of the Village of Big Bend as set forth above.

58. That the Village of Big Bend "Board Minutes" of July 11, 2013, (Exhibit 4, page 4)

state that "Fred Latzke from Rural Home Cemetery gave the Village their mower and trimmer"

which was prior to the resolution and approval of the transfer of the said cemetery to the Village

of Big Bend.

59. That the individual plaintiffs did not consent to the gift of the Cemetery mower and

trimmer nor the deeding and transferring of said Cemetery assets, bank accounts and real state to

the Village of Big Bend.

60. That the defendants conversion of said property has caused the plaintiffs economic

and non-economic harm and will continue to do so in the future.

SECOND CAUSE OF ACTION: UNJUST ENRICHMENT

61. Plaintiffs re-allege and reassert paragraphs 1 through 60 as if fully set forth herein.

62. That defendants have been unjustly enriched to the detriment of the plaintiffs and

received property, assets and real estate to which they were not entitled to and for which they did

not compensate plaintiffs and received for no consideration.

63. That defendants have and will continue to benefit from their unlawful retention of

plaintiffs' said property.

64. That plaintiffs have suffered and will continue to suffer economic harm in the future.

THIRD CAUSE OF ACTION: VIOLATION OF WISCONSIN OPEN MEETINGS LAW

65. Plaintiffs re-allege and reassert paragraphs1 through 64 as if fully set forth herein.

66. That defendants Frederick Latzke, Catherine Alba and Richard Riesch, together with

defendants James Soneberg and Leah Fickau and, upon information and belief, members of the

Soneberg and Fickau families, were the only attendees at a meeting of the Rural Home Cemetery

Association on April 27, 2013 (Exhibit 20).

67. Upon information and belief, the main, if not sole, purpose of the meeting was to

transfer ownership of land, monetary assets and maintenance rights from the Rural Home

Cemetery Association to the Village of Big Bend.

68. Defendant Soneberg is the Village of Big Bend President, and defendant Fickau is a

Village of Big Bend Trustee and the two of them comprise two-thirds of the Village of Big Bend

Finance Committee (Exhibit 22), thereby resulting in a quorum of members present from that

committee.

69. Upon information and belief, no prior notice or disclosure was made that such a

quorum would be present nor was there any notice or disclosure that the quorum would be voting

on a financial matter which would transfer substantial assets and responsibilities from the Rural

Home Cemetery Association to the Village of Big Bend, in violation of Open Meetings of

Governmental Bodies Wis. Stats. 19.82, Sec. 19.83, Sec. 19.84 and Sec. 19.96.

70. That the defendants knew, or should have known, that by allegedly violating the

open meetings law, upon information and belief, they were disregarding plaintiffs' rights to their

detriment and to their current and future economic harm, although pursuant to State v. Swanson,

92 Wis.2d 310, 284 N.W.2d 655 (1979) it is not necessary to prove specific intent to prove a

violation of the Open Meetings Law.

71. That inasmuch as the Waukesha County District Attorney determined not to find an

Open Meetings violation against defendants Soneberg, Fickau and the Village of Big Bend upon

the verified complaint of plaintiff Sharon Roder (Exhibits 23 and 24) and more than 20 days

has expired, said violation is being prosecuted and enforced in the name of plaintiff Sharon

Roder on behalf of the plaintiff State of Wisconsin pursuant to Wis. Stats. 19.97(4) and under

Wis. Stats. 19.97(1), (2) and (3), specifically "on his or her relation on the name, and on behalf,

of the state."

72. That pursuant to Wis. Stats. 19.97(3), "Any action taken at a meeting of a

governmental body in violation of this subchapter is voidable . . . . .," however the court is to

look at the facts of this case and the public interest in justifying the action taken by the court.

Plaintiffs allege that the transfer by the Rural Home Cemetery Association and its trustees,

officers and Fred Latzke, of its assets, bank accounts and real estate to the Village of Big Bend,

is a transfer that should be voided by the court.

FOURTH CAUSE OF ACTION: PERMANENT INJUNCTION OR CONTINUATION

OF THE TEMPORARY INJUNCTION/RESTRAINING ORDER THAT IS

CURRENTLY IN EFFECT

73. Plaintiffs re-allege and reassert paragraphs 1 through 72 as if fully set forth herein.

74. 74. Pursuant to Wis. Stats. 813.02(1)(a), defendants need to be restrained during this

litigation because of their past and present actions in violation of the rights of plaintiffs that

would render a judgment for plaintiffs ineffectual, or render the transfer of the Cemetery and its

assets and land back to the plaintiffs inadequate and not as it was before the transfer to Big Bend.

75. Plaintiffs allege that if defendants use the depository funds of the Rural Home

Cemetery in the approximate amount of $32,000, plaintiffs will be permanently injured.

76. Plaintiffs allege that if the Village of Big Bend annexes the Rural Home Cemetery,

puts an easement on the Cemetery for any reason, builds a water and/or sewer treatment plant on

the Cemetery land, the effect on the Rural Home Cemetery would be insurmountable to repair.

77. Plaintiffs allege that the purchase of the Klein Addition by the Cemetery former and

illegal trustees and officers, and specifically defendant Fred Latzke, by using the Rural Home

Cemetery Perpetual Care Trust Funds, may have put a cloud on the title to said Klein Addition.

In addition, the Village of Big Bend defendants had Klein sign a Trustees' Deed directly to Big

Bend, and not to the Rural Home Cemetery, even though the Cemetery funds paid for said land

(Exhibit 27), clouding the title even more and evidencing what the defendants are capable of.

as it all was FIFTH CAUSE OF ACTION: PUNITIVE DAMAGES

78. Plaintiffs re-allege and reassert paragraphs 1through 77 as if fully set forth herein.

79. That defendants' actions and/or inactions were, upon information and belief, in

intentional disregard of plaintiffs' rights and defendants acted with malice towards said plaintiffs.

80. That plaintiffs have incurred and will continue to incur economic and non-economic

loss and damage as a result of the defendants' intentional and malicious actions and defendants'

intention disregard of the plaintiffs' rights.

WHEREFORE, plaintiffs seek the following relief from this Court:

A. To void the transfer to the Village of Big Bend of the Rural Home Cemetery

Association, its depository accounts, real estate and any and all other assets

B. That defendants be held jointly and severally liable for all damages, including but

not limited to compensatory and punitive damages.

C. For injunctive relief in accordance with the allegations in the Amended Complaint.

D. An award of actual attorney fees, costs and disbursements incurred by the

plaintiffs in this action, including but not limited to the defendants' Open Meetings Law violation

award, and statutory interest.

E. For such other and further relief as the Court deems just and proper.

Dated July ____, 2014.

_________________________________

Nancy Phelps (SBN 1010592)

Attorney for Plaintiffs

Nancy Phelps, Attorney at Law, S.C.

P. O. Box 511519

Milwaukee, WI 53203

(414) 276-3800