John Gillen v. City of Neenah
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SUPREME COURT OF WISCONSIN Case No.: 96-2470 Complete Title of Case: John Gillen, Ann Gillen, William Dunwiddie, Friends of Our Neenah Parks and Clean Water Action Council of Northeastern Wisconsin, Inc., Plaintiffs-Appellants, v. City of Neenah, Minergy Corporation and P.H. Glatfelter Company, Defendants-Respondents. ON CERTIFICATION FROM THE COURT OF APPEALS Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: July 2, 1998 January 6, 1998 Circuit Winnebago Robert Hawley Abrahamson, C.J., concurs (opinion filed) Geske and Bradley, J.J., join Dissented: Not Participating: ATTORNEYS: For the plaintiffs-appellants there were briefs by William P. O'Connor, Rhea A. Myers and Jennifer S. McGinnity and Wheeler, Van Sickle & Anderson, S.C., Madison and oral argument by William P. O Connor. For the defendants-respondents, City of Neenah and Minergy Corporation, there was a brief by James G. Gunz, city attorney, Neenah; Arthur J. Harrington, Winston A. Ostrow, Michael B. Apfeld, and Godfrey & Kahn, S.C., Milwaukee and James G. Schweitzer, Joseph R. Cincotta and Schweitzer and Cincotta, LLP, Milwaukee and oral argument by Michael B. Apfeld. For the defendant-respondent, P.H. Glatfelter Company there was a brief by Mark A. Thimke and Foley & Lardner, Milwaukee and David G. Mandelbaum, Harry R. Weiss and Ballard, Spahr, Andrews & Ingersoll, Philadelphia, PA and oral argument by David G. Mandelbaum. Amicus curiae brief was filed by John S. Greene, assistant attorney general with whom on the brief was James E. Doyle, attorney general, for the State of Wisconsin. Amicus curiae brief was filed by Curt F. Pawlisch and Cullen, Weston, Pines & Bach, Madison for The Wisconsin Alliance of Cities. Amicus curiae brief was filed by Curtis A. Witynski, counsel, Madison for the League of Wisconsin Municipalities. No. 96-2470 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 96-2470 STATE OF WISCONSIN : IN SUPREME COURT FILED John Gillen, Ann Gillen, William Dunwiddie, Friends of Our Neenah Parks and Clean Water Action Council of Northeastern Wisconsin, Inc., JUL 2, 1998 Marilyn L. Graves Clerk of Supreme Court Madison, WI Plaintiffs-Appellants, v. City of Neenah, Minergy Corporation and P.H. Glatfelter Company, Defendants-Respondents. APPEAL from a judgment of the Circuit Court for Winnebago County, Robert A. Hawley, Judge. ¶1 PER CURIAM. This Reversed and cause remanded. is an appeal by the plaintiffs, John and Ann Gillen, William Dunwiddie, Friends of Our Neenah Parks and Clean Water Action Council of Northeastern Wisconsin, Inc., from a judgment of the circuit court for Winnebago County, Robert A. Hawley, Judge, granting motions to dismiss and motions for summary judgment for the defendants, City of Neenah, Minergy Corporation and P.H. Glatfelter Company. The circuit court dismissed the plaintiffs' complaint (as amended) with prejudice on several grounds, including that the plaintiffs lacked standing, failed to exhaust administrative remedies and sought 1 No. 96-2470 to assert rights in a derivative action that were not properly asserted in their pleadings.1 ¶2 The court of appeals certified the following issue to the court: "Whether the public trust doctrine enables a citizen to directly sue a private party whom the citizen believes was inadequately regulated by the Department of Natural Resources?" ¶3 Stat. We hold that the plaintiffs may bring suit under Wis. § 30.294 (1993-94) public nuisance.2 judgment of the against the defendants to abate a For the reasons set forth, we reverse the circuit court dismissing the complaint and remand the cause to the circuit court for further proceedings. I ¶4 The dispute in this case concerns portions of Little Lake Butte des Morts in Winnebago County. In chapter 52, Laws of 1951, the legislature granted right, title and interest into certain submerged land near the south shore of Little Lake Butte des Morts (referred to as the Legislative Lakebed Grant) to the City of Neenah "for a public purpose."3 ¶5 1975, Beginning fill in material 1951 and consisting continuing through of generated sludge at by least the 1 The circuit court examined the complaint (as amended) and the stipulation of facts. 2 All references to the Wisconsin statutes are to the 199394 version unless otherwise indicated. 3 The title to chapter 52, Laws of 1951, states that the grant of the submerged land to the city is "for a public purpose." The deed to the city repeats the title of the act but does not otherwise limit the use of the submerged land. 2 No. 96-2470 primary wastewater treatment system of Bergstrom Paper Company, the predecessor to P.H. Glatfelter Company, was placed in the Grant Area (that Lakebed Grant). is, the area discussed in the Legislative In addition, in 1951, 1974, and 1984 the City leased a certain portion of the Grant Area to the Bergstrom and Glatfelter Companies for construction wastewater treatment plant and for and operation vehicular of parking. a The Department of Natural Resources (the DNR), or its predecessor agency, had some knowledge of the development of the Bergstrom and Glatfelter Companies' facilities and was involved in reviewing and approving the wastewater treatment plant and paper sludge combustor. ¶6 City to In 1995 Minergy Corporation sought a lease from the construct and operate a commercial facility on approximately five acres of the Grant Area other than the area leased to the Bergstrom and Glatfelter Companies. The proposed Minergy facility would process paper sludge generated by paper mills in the Fox Valley area into a glass aggregate product. ¶7 and In December 1995 the DNR, the City, Glatfelter Company Minergy Corporation signed a stipulation and Settlement Agreement, which provided the following: (1) The DNR asserted that both the proposed Minergy facility and the existing operations of Glatfelter Company are impermissible public trust uses and violate the Legislative Lakebed Grant, relevant portions of Chapter 30 including Wis. Stat. § 30.03 and the public trust doctrine as developed under Wisconsin law. 3 No. 96-2470 (2) Regardless of the foregoing, based on the historical development of the Grant Area, to which the DNR failed to object, and based on the DNR's enforcement discretion, the DNR agreed that it would not pursue enforcement action under its authority relating to the public trust laws and that it would not seek equitable relief, including removal of existing facilities and activities, during the term of the Settlement Agreement. (3) The City, Minergy Corporation and Glatfelter Company agreed that applicable regulatory permits under chapters 30, 144 and 147 would be obtained for any activities in the Grant Area and that any violations of the Settlement Agreement could be treated as violations of chapter 30 and enforced in accordance with the provisions of chapters 23, 30 and 227. (4) The lakebed DNR grant; concluded the City that of the Neenah, legislative Minergy grant is Corporation, a and Glatfelter Company disagreed with the DNR's characterization of the legislative grant as a lakebed grant. ¶8 After executing the Settlement Agreement, the City and Minergy Corporation entered into a lease, running through May 2050, that authorized Minergy Corporation to construct and operate the proposed facility. ¶9 proposed The City lease conducted with Minergy public meetings Corporation support for and opposition to the proposal. relating and to received the both Plaintiff Dunwiddie objected to the Minergy facility and requested that the lease be voided. 4 No. 96-2470 ¶10 Nevertheless, the Minergy facility was approved by the City Common Council, the City Plan Commission, the City Board of Appeals, the City Finance Committee, and the City Park and Recreation Committee. ¶11 Control In April 1996 the DNR issued the Final Air Pollution Construction Permit (air permit) for the Minergy facility and prepared an Environmental Analysis and Decision on the Need for an Environmental Impact Statement. The DNR also provided notice of its approval of the air permit to several individuals who had requested copies of the final decision, including plaintiffs William Dunwiddie and John Gillen. ¶12 On or about May 8, 1996, a representative of plaintiff Friends of Our Neenah Parks applied to the City for a permit to hold a "Minergy Protest March" on May 18, 1996, over the Grant Area. As a part of that request, the representative of Friends of Our Neenah Parks asked for permission to use a boat ramp to launch a canoe. ¶13 On The request was denied by Glatfelter Company. May 21, 1996, the plaintiffs initiated suit in circuit court as individuals "and in the name of the State of Wisconsin." of the More The complaint (as amended) challenges the legality Minergy lease and specifically, theories or the claims the actions of complaint asserts supporting the Glatfelter the Company. following plaintiffs' seven ultimate conclusion that the defendants' actions are unlawful: (1) the Minergy lease is for a private purpose and violates the public trust doctrine established by Wis. const., art. IX, § 1; (2) the Minergy and Glatfelter leases constitute state action depriving 5 No. 96-2470 the plaintiffs of their interest in the use of the area in issue in violation of Wis. const., art. XI, § 3a; the Fifth Amendment to the U.S. Constitution; and 42 U.S.C. § 1983; (3) the lease (the complaint does not specify which lease) deprives the plaintiffs of their interest in land held in trust by the state without due process of law in violation of the Fifth Amendment to the U.S. Constitution and 42 U.S.C. § 1983; (4) the Minergy lease constitutes actions a private a trespass; constitute nuisance; (6) the (5) the defendants' construction of the Minergy facility and Glatfelter Company's causing gravel to be dumped on Grant Area lands constitute public nuisances under Wis. Stat. § 30.294 on the ground that no DNR permits were obtained, as required by Wis. Stat. § 30.12; and (7) the Minergy lease constitutes an alienation of the public interest and violates Wis. const., art. XI, § 3. ¶14 The plaintiffs' prayer for relief requests that the circuit court declare that the Minergy lease is null and void; that the lease constitutes a private nuisance, a public nuisance and a trespass; and that the circuit court grant a permanent injunction against the construction of the Minergy facility.4 The plaintiffs did not file a notice of claim against the City. 4 A week before oral argument in this court, Minergy Corporation filed supplemental affidavits on the issue of mootness. Minergy Corporation argued that the appeal was moot because Minergy Corporation had already completed construction of the facility, had commenced startup of the facility, had operated the facility on natural gas and was scheduled to begin receiving paper sludge for processing on January 5, 1998, the day before oral argument in this court. 6 No. 96-2470 ¶15 Glatfelter Company filed a motion to dismiss; the City and Minergy Corporation filed consolidated motions to dismiss and for summary plaintiffs' plaintiffs' judgment. claims proper with remedy The circuit prejudice, was to court dismissed reasoning challenge the the that the Settlement Agreement through the administrative review process established in chapter 227 of the statutes. ¶16 After the circuit court's ruling on the motion to dismiss, Minergy Corporation proceeded with construction of the facility.5 ¶17 This court accepted the case on certification from the court of appeals and heard oral argument on January 6, 1998. In a letter to the parties dated January 23, 1998, the court asked the parties to consider alternative dispute resolution. In a The plaintiffs responded that the appeal was not moot because Minergy Corporation made the business decision to proceed with construction of the facility in spite of the risks, including the DNR's position that construction on the Grant Area would be illegal. At oral argument the plaintiffs conceded that their request for a grant of a permanent injunction against the construction of the Minergy facility is moot, but they persisted in their position that the Minergy lease violates the public trust doctrine. 5 The plaintiffs did not seek a stay in circuit court. All the parties agree that under the Wisconsin statutes the plaintiffs may have been required to provide substantial security in order to seek a stay. See Wis. Stat. §§ 806.08(3), 813.06. The plaintiffs argue that as individual citizens, they did not have the financial ability to post security against the construction of the multi-million dollar Minergy facility. 7 No. 96-2470 letter to the court dated March 3, 1998, the parties requested that the court proceed to a decision in the case. II ¶18 The first issue we must address is whether the plaintiffs' failure to file a notice of claim against the City bars the plaintiffs' action against the City. The City and Minergy Corporation argue that the plaintiffs' failure to comply with the notice of claim requirement set forth in Wis. Stat. § 893.80(1)(b) bars the plaintiffs' claims against the City.6 ¶19 from Wisconsin bringing an Stat. action § 893.80(1)(b) against a prohibits governmental a body claimant or its officers or employees for acts done in their official capacity unless a notice of claim is first presented and the claim is disallowed.7 See City of Racine v. Waste Facility Siting Board, 217 Wis. 2d 616, 575 N.W.2d 712, 714 (1998). 6 The plaintiffs concede that no notice of claim was filed against the City. They argue that the City had actual notice of their claim because at a January 1996 public meeting, plaintiff William Dunwiddie objected to the Minergy facility and asked that the lease be voided. In attendance at that meeting were the City Mayor, City Attorney and two Minergy representatives. Actual notice may satisfy the notice of injury provisions of Wis. Stat. § 893.80(1)(a), Kellner v. Christian, 197 Wis. 2d 183, 196, 539 N.W.2d 685 (1995), but does not satisfy the notice of claims provisions of § 893.80(1)(b). See Futsch v. St. Croix Central School District, 183 Wis. 2d 336, 343, 515 N.W.2d 328 (Ct. App. 1994). 7 Wisconsin Stat. § 893.80(1)(b) provides: [N]o action may be brought or maintained against any . . . governmental subdivision . . . unless . . . [a] claim containing the address of the claimant and an itemized statement of the relief 8 No. 96-2470 ¶20 This court has held that Wis. Stat. § 893.80(1)(b) "applies to all causes of action, not just those in tort and not just those for money damages." DNR v. City of Waukesha, 184 Wis. 2d 178, 191, 515 N.W.2d 888 (1994); City of Racine, 575 N.W.2d at 714. ¶21 The United States Supreme Court has refused to permit application of the Wisconsin notice of claims statute to a 42 U.S.C. § 1983 reasoning that action the brought notice Wisconsin claims of in statute state courts, interferes with federal civil rights policy. See Felder v. Casey, 487 U.S. 131 (1988). stated The Felder Court that "enforcement of the notice-of-claim statute in § 1983 actions brought in state court so interferes with and frustrates the substantive right Congress created that, under the Supremacy Clause, it must yield to the federal interest." Id. at 151. The Felder Court concluded as follows: [Wisconsin] may not alter the outcome of federal claims it chooses to entertain in its courts by demanding compliance with outcome-determinative rules that are inapplicable when such claims are brought in federal court . . . . [A] state court may not decline to hear an otherwise properly presented federal claim because that claim would be barred under a state law requiring timely filing of notice. State courts simply are not free to vindicate the substantive interests underlying a state rule of decision at the expense of the federal right. sought is presented to the appropriate clerk or person who performs the duties of a clerk or secretary for the defendant . . . sub-division . . . and the claim is disallowed. 9 No. 96-2470 Id. at 152. ¶22 Under the Felder case, the plaintiffs' § 1983 claims are not barred by the plaintiffs' failure to comply with Wis. Stat. § 893.80(1)(b). The question then becomes whether the plaintiffs' claims, other than the § 1983 claims, are barred by the failure to file a notice of claim. ¶23 An examination of the complaint (as amended) reveals that the § 1983 claims and the state claims are closely related.8 The plaintiffs' § 1983 claims are based on the same factual allegations giving rise to claims premised on violations are doctrine. the state of claims, the and state the § 1983 public trust Therefore, the crux of this case is the state public trust doctrine, which recognizes that the state holds beds of navigable waters in trust for all Wisconsin citizens. See Muench v. Public Serv. Comm'n, 261 Wis. 492, 501, 53 N.W.2d 514 (1952). The origins of the public trust doctrine date back at 8 The complaint alleges two different claims under both 42 U.S.C. § 1983 and the Fifth Amendment to the U.S. Const. First, the complaint alleges that the City's execution of the lease with Minergy Corporation constitutes a state action depriving the plaintiffs of their interest in the use of the area held in trust by the state for the public's benefit, in violation of Wis. const., art. XI, § 3a; the Fifth Amendment to the U.S. Constitution; and 42 U.S.C. § 1983. This claim states that the City violated the plaintiffs' property rights under the takings clause of the Fifth Amendment. Second, the complaint alleges that the City's lease with Minergy Corporation deprives the plaintiffs of their interest in land held in trust by the state for the benefit of the State's citizens without due process of law, in violation of the Fifth Amendment and § 1983. This claim states that the City violated the plaintiffs' procedural due process rights. 10 No. 96-2470 least to the Northwest Ordinance of 1787 and Wis. const., art. IX, § 1.9 ¶24 Although the public trust doctrine was originally designed to protect commercial navigation, the doctrine has been expanded to safeguard the public's use of navigable waters for enjoyment of natural scenic beauty, as well as for recreational and nonpecuniary purposes. See State v. Trudeau, 139 Wis. 2d 91, 104, 408 N.W.2d 337 (1987); Muench, 261 Wis. at 492. The legislature has the primary authority to administer the public trust and has the power of regulation to effectuate the purposes of the public trust.10 ¶25 The public trust doctrine allows a person to sue on behalf of, and in the name of, the State "for the purpose of State v. Deetz, 66 Wis. 2d 1, vindicating the public trust." 9 Wisconsin Const., art. IX, s. 1 provides: Jurisdiction on rivers and lakes; navigable waters. The state shall have concurrent jurisdiction on all rivers and lakes bordering on this state so far as such rivers or lakes shall form a common boundary to the state and any other state or territory now or hereafter to be formed, and bounded by the same; and the river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well as to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor. 10 For other cases discussing the public trust doctrine, see, e.g., State v. Bleck, 114 Wis. 2d 454, 465, 338 N.W.2d 492 (1983); Ashwaubenon v. Public Serv. Comm'n, 22 Wis. 2d 38, 4849, 125 N.W.2d 647 (1963). 11 No. 96-2470 13, 224 N.W.2d 407 (1974). It is through the public trust doctrine that the plaintiffs bring their suit under Wis. Stat. § 30.294. ¶26 Wisconsin Stat. § 30.294 provides that: "Every violation of this chapter is declared to be a public nuisance and may be prohibited by injunction and may be abated by legal action brought by any person." The plaintiffs requested the equitable remedy of a permanent injunction in their complaint in this case. While they are no longer seeking that remedyone specifically allowed enforcement of the injunction is by Wis. public Stat. § 30.294the trust doctrine can significant to our be fact that achieved by determination of the applicability of Wis. Stat. § 893.80(1)(b). ¶27 Injunctive relief is usually requested simultaneously with, or soon after, commencing an action by a motion for a temporary A restraining permanent order injunction injury . . . and . . . may sufficient and/or threat of a "is issue future preliminary designed merely irreparable injunction. to upon prevent proof injury." of Pure a Milk Prod. Coop. v. National Farmers Org., 90 Wis. 2d 781, 802, 280 N.W.2d 691 (1979). Because the goal in the issuance of a permanent injunction is to prevent injury, "it is not necessary for the plaintiff to wait until some injury has been done." ¶28 the Id. It is with the nature of the public trust doctrine and preventative goals of injunctive relief in mind that we consider the application of Wis. Stat. § 893.80(1)(b) to the 12 No. 96-2470 claim under Wis. Stat. § 30.294 in this case. As stated, § 893.80(1)(b) prevents a plaintiff from bringing a cause of action against a governmental body unless the plaintiff provides to the governmental body a notice of claim. The purpose of § 893.80(1)(b) is "to provide the governmental subdivision an opportunity to compromise and settle a claim without costly and time-consuming litigation." ¶29 to seek City of Racine, 575 N.W.2d at 714. Wisconsin Stat. § 30.294 expressly allows a plaintiff immediate injunctive enforcement procedures relief provided in to prevent § 30.294, injury. are The inconsistent with Wis. Stat. § 893.80(1)(b), which requires a plaintiff to provide a governmental body with a notice of claim, and to wait 120 days action. this or until the claim is disallowed before filing an Therefore, the general application of § 893.80(1)(b) in case frustrates the plaintiffs' specific right to injunctive relief under § 30.294. ¶30 Where general and specific statutory provisions are in conflict, the specific provisions take precedence. See State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 596, 547 N.W.2d 587 (1996). Therefore, the specific procedures set forth in Wis. Stat. § 30.294 "take precedence over the general notice provisions of § 893.80." Id. Thus, the plaintiffs' failure to comply with Wis. Stat. § 893.80(1)(b) in this case does not bar their state claims brought in accord with § 30.294. ¶31 Our § 893.80(1)(b) decision analysis in this in Auchinleck, of the case is 200 application consistent Wis. 2d 13 585. of with In Wis. this Stat. court's Auchinleck, we No. 96-2470 created an exception to the application of § 893.80(1)(b) in regard to open meetings and open records laws because of the specific enforcement provisions of the statutes involved. See id. at 596. Under the open records law at issue in Auchinleck, a may requester immediately bring a mandamus action seeking release of records if a municipality withholds or delays access to a record. See Wis. Stat. § 19.37. In addition, under the open meetings law, a complainant had to first file a complaint with the district attorney. See Wis. Stat. § 19.97(1). If the district attorney failed to bring an enforcement action within 20 days, the complainant could immediately file suit against the municipality, seeking declaratory or other appropriate relief. See Wis. Stat. § 19.97(4). the open records municipality provisions in of and opening Auchinleck Wis. Notwithstanding these provisions of Stat. meetings argued that laws, the § 893.80(1)(b) however, notice of required the claim that a complainant wait 120 days after filing a notice of claim, or until the municipality disallowed the claim, to file suit against the municipality. ¶32 Faced provisions, we with had to these somewhat ascertain the enacting Wis. Stat. § 893.80(1)(b). at 594. inconsistent legislature s statutory intent in See Auchinleck, 200 Wis. 2d Having determined that the legislative intent of the open records and open meetings laws conflicted with the intent of § 893.80(1)(b), we followed the cardinal rule of statutory interpretation that a specific statute takes precedence over a general statute. See id. at 595-96. 14 In Auchinleck, therefore, No. 96-2470 we held that the specific enforcement procedures of the open meetings and open records laws took precedence over the general notice requirements of § 893.80(1). ¶33 The concurring opinion See id. at 595-96. states that this court's position regarding the application of Wis. Stat. § 893.80(1)(b) is "unpredictable." argument, the previously Concurring concurrence decided "whether op. asserts at 12. that As this noncompliance of its court has not the notice of with part claim statute would deprive the court of the power to proceed." Id. at 11. Citing Wis. Stat. § 893.82 as an analogy, the concurrence suggests that failure to give notice in accord with § 893.80(1)(b) may be jurisidictional and, therefore, "may not be waived by the defendant's failure to plead noncompliance as an affirmative defense." ¶34 Id. at 12. We disagree. The concurring opinion correctly states that in Figgs v. City of Milwaukee, 121 Wis. 2d 44, 357 N.W.2d 548 (1984), this court concluded that the notice of claim filed pursuant to § 893.80(1)(b) in that case was sufficient. However, this court did recognize that the court of appeals in Figgs had determined that the notice of claim was defective. found it necessary to determine Accordingly, this court whether noncompliance with § 893.80(1)(b) is an issue that may be waived by a defendant, or whether compliance with § 893.80(1)(b) involves an issue of the court's jurisdiction or wavied. power to proceed which may not See id. at 50-51. [W]e point out that this court has stated that these statutory conditions or conditions precedent [in Wis. 15 be No. 96-2470 Stat. § 893.80(1)(b)] have nothing to do with subject matter jurisdiction of a circuit court. Lees v. ILHR Department, 49 Wis. 2d 491, 497, 182 N.W.2d 245 (1971); Galloway v. State, 32 Wis. 2d 414, 419, 145 N.W.2d 761, 147 N.W.2d 542 (1966). They deal only with the appropriate conditions set by the legislature as a prerequisite for commencing or maintaining an action. Subject matter jurisdiction is conferred on the circuit courts by the constitution. In the Matter of the Guardianship of Ebarhardy, 102 Wis. 2d 539, 550, 307 N.W.2d 881 (1981). Whether or not a proper claim has been filed, the circuit court has jurisdiction of the subject matter. Id. at 51-52 n.6.11 ¶35 The concurring opinion also argues that our reliance on the immediate enforcement remedy of injunctive relief in Wis. Stat. § 30.294 is misplaced because the injunction in this case was not filed against the City, the injunction sought in the complaint was a permanent rather than a preliminary injunction, and the plaintiffs waited approximately 165 days from the date the City of Neenah and Mineargy entered into the lease before filing their claim. None of these asserted distinctions alter our analysis. 11 The concurrence would likely argue that because the jurisdictional issue was not dispositive in this court's decision in Figgs v. City of Milwaukee, 121 Wis. 2d 44, 357 N.W.2d 548 (1984), this statement is dicta. However, this court has previously stated that "when a court of last resort intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision." Chase v. Ameircan Cartage Co., 176 Wis. 235, 238, 186 N.W. 598 (1922). See also State v. Taylor, 205 Wis. 2d 664, 670, 556 N.W.2d 779 (Ct. App. 1996). 16 No. 96-2470 ¶36 We conclude that there is an exception to Wis. Stat. § 893.80(1)(b) where the plaintiffs' claims are brought pursuant to the public trust doctrine under Wis. Stat. § 30.294, which provides injunctive relief as a specific enforcement remedy. It is irrelevant that the requested injunction in this case was not against the City of Neenah. Against whom the injunctive relief is sought is not a significant factor. Rather, our conclusion rests upon the fact that the plaintiffs brought this action in the name of the State to stop a violation of the public trust doctrine, and that injunctive relief is a specific enforcement remedy available under § 30.294. ¶37 did Similarly, it is irrelevant that the plaintiffs here not request a preliminary injunction. Wisconsin § 30.294 provides for enforcement through an injunction. Stat. The statutory language is not limited to enforcement only through a permanent injunction, and a request for a permanent injunction in a complaint may often be accompanied by a request for a preliminary injunction. ¶38 Finally, the record in this case shows that the reason the plaintiffs did not immediately file an action against the City of Neenah and Minergy is because they attempted to resolve the issue through other means. The City of Neenah and Minergy entered into the lease on December 6, 1995. Soon after, the plaintiffs requested a public meeting to voice objection to the lease, and a public meeting was held on January 23, 1996. See Record on appeal 16:2. Additional public meetings were held, and further the City received 17 written and oral commentary No. 96-2470 opposing the lease. It was not until April 22, 1996, that the DNR made its decision that an Environmental Impact Statement was not required. See id. at 16:110. On April 30, 1996, the DNR issued the Final Air Pollution Control Construction Permit for Minergy to construct and operate the glass aggregate plant. See id. at 16:3. plaintiffs Less than one month later, on May 22, 1996, the filed their Summons and Complaint in this case. Thus, the concurring opinion's conclusion that "the plaintiffs clearly had sufficient time to comply with the notice of claim statute" is unfounded. ¶39 Based upon See Concurring op. at 5. the nature of the plaintiffs' claims brought in the name of the State to vindicate the public trust; the fact that the plainitffs' complaint could under Wis. Stat. § 30.294 and, in fact, did request injunctive relief; and the language of Wis. Stat. § 893.80(1)(b), we conclude that the unique circumstances of this case provide an exception to the notice of claim requirements.12 As such, the plaintiffs failure 12 We do not understand the concurring opinion's conclusion to the effect that our holding is premised upon "no governing rule or principle." Concurring op. at 2. As set forth in the above discussion, our decision concluding that there is a narrow exception to Wis. Stat. § 893.80(1)(b), for claims filed under Wis. Stat. § 30.294, is premised upon the unique nature of a claim brought to enforce the public trust doctrine in the name of the State, combined with the fact that § 30.294 provides injunctive relief as a specific enforcement remedy. Even if this court may find it necessary to recognize other exceptions to the requirements of § 893.80(1)(b) in the future, we should not undertake a re-write of the statute as the concurring opinion suggests. See Concurring op. at 8. We decline the invitation to take on a policy-making function more appropriately left to the legislature. See Gaertner v. Holcka, No. 96-2726, unpublished slip op. (S. Ct. June 26, 1998). 18 No. 96-2470 to comply with § 893.80(1)(b) in this case does not bar their claims brought in accord with § 30.294. III ¶40 enables We next determine whether the public trust doctrine a citizen to directly sue a private party whom citizen believes was inadequately regulated by the DNR. question is independently analysis. a question of the of law circuit that this court, court benefiting the This decides from its See Northbridge Co. v. W.R. Grace & Co., 162 Wis. 2d 918, 923, 471 N.W.2d 179 (1991). ¶41 On appellate review of a motion to dismiss the complaint, we treat as true the facts presented in the complaint (as amended) and the stipulation of facts, as well as all reasonable inferences that may be drawn from the facts.13 We construe all facts and inferences in favor of the plaintiffs. See id. at 923-24. ¶42 As stated, the public trust doctrine "establishes standing for the state, or any person suing in the name of the state for the purpose of vindicating the public trust, to assert a cause of action recognized by the existing law of Wisconsin." Deetz, 66 Wis. 2d at 13. enacted pursuant to the Therefore, we look to the statutes public trust doctrine to determine whether the plaintiffs may bring this suit. 13 The parties agree that the circuit court treated the case as a motion to dismiss based on the complaint (as amended) and the stipulation of facts, not as a motion for summary judgment. 19 No. 96-2470 ¶43 Wisconsin Stats. ch. 30, enacted pursuant to the public trust doctrine, governs navigable waters and navigation in Wisconsin. The plaintiffs assert that Wis. Stat. § 30.294 gives them standing to bring an action against the defendants. Section 30.294 provides that "every violation of this chapter [30] is declared to be a public nuisance and may be prohibited by injunction and may be abated by legal action brought by any person" (emphasis added). Thus § 30.294 expressly contemplates citizen suits irrespective of the DNR'S actions or enforcement decisions. ¶44 The plaintiffs allege that the defendants have violated Wis. Stat. § 30.12, which is "a codification of the common law restriction against encroachments on publicly held lakebeds." Trudeau, 139 Wis. 2d at 102 (citing Hixon v. Public Serv. Comm'n, 32 Wis. 2d 608, 616, 146 N.W.2d 577 (1966)).14 In § 30.12 the legislature declared that it is unlawful to place any structure on a bed of a navigable water unless a permit has been granted statute.15 by the DNR or the structure is authorized by The plaintiffs allege that Minergy Corporation did not obtain the permits from the DNR. 14 See also Bleck, 114 Wis. 2d at 467; Sterlingworth Condominium Ass'n v. DNR, 205 Wis. 2d 710, 723, 556 N.W.2d 791 (Ct. App. 1996); Cassidy v. DNR, 132 Wis. 2d 153, 158, 390 N.W.2d 81 (Ct. App. 1986). 15 Wisconsin Stat. § 30.12(1) states: (1) GENERAL PROHIBITION. Except as provided under sub. (4), unless a permit has been granted by the department pursuant to statute or the legislature has 20 No. 96-2470 ¶45 The City and Minergy Corporation raise two defenses to the plaintiffs' public nuisance claim under Wis. Stat. §§ 30.12 and 30.294. First, the City and Minergy Corporation argue that the DNR's decision to forego public trust claims in accordance with Wis. Stat. § 30.03(4)(a) defeats nuisance claim under § 30.294. the plaintiffs' public Second, the City and Minergy Corporation argue that § 30.12(1), the provision the plaintiffs claim was violated, does not apply in this case because the Grant Area is not a bed of navigable water.16 ¶46 The City and Minergy Corporation first argue that the legislature has delegated to the DNR the exclusive authority to decide when a public trust violation has occurred and that after the DNR decides to allow a project to proceed, as it did in this case, all persons are barred from challenging the disputed project under Wis. Stat. § 30.294. ¶47 Wisconsin Stat. § 30.03(4)(a) sets forth the procedures for the DNR to follow when it learns of a possible violation of the statutes relating to navigable waters or a possible infringement of the public rights relating to navigable otherwise authorized structures navigable waters, it is unlawful: or deposits in (a) To deposit any material or to place any structure upon the bed of any navigable water where no bulkhead line has been established; or (b) To deposit any material or to place any structure upon the bed of any navigable water beyond a lawfully established bulkhead line. (c) 16 Glatfelter Company joins the City and Minergy Corporation in this defense. 21 No. 96-2470 waters.17 DNR, According to the City and Minergy Corporation, the by entering defendants, into decided Settlement Agreement to the City right plaintiffs forego the and Therefore, the the Minergy Corporation may have had to public with the trust claims. argue, whatever challenge the Minergy facility was forfeited when the DNR entered into the Settlement Agreement. The City and Minergy Corporation assert that the plaintiffs do not have standing to bring a public nuisance claim under Wis. Stat. § 30.294; their only recourse is to challenge the DNR's actions under the administrative review process established in Wis. Stat. ch. 227. ¶48 The City and Minergy Corporation are, in essence, asking this court to amend Wis. Stat. § 30.294 by grafting onto the statute follows: an exception. The statute "Every violation of this chapter then . . . would read as may be abated by legal action brought by any person except where the DNR has decided not to seek enforcement action itself for the violation" (underscored portion reflects the language grafted onto the statute by the City and Minergy Corporation). 17 Wisconsin Stat. § 30.03(4)(a) provides in pertinent part: If the department learns of a possible violation of the statutes relating to navigable waters, and the department determines that the public interest may not be adequately served by imposition of a penalty or forfeiture, the department may proceed as provided in this paragraph, either in lieu of or in addition to any other relief provided by law. The department may order a hearing under ch. 227 concerning the possible violation or infringement . . . 22 No. 96-2470 ¶49 We agree with the amicus brief of the Wisconsin Department of Justice that the position advanced by the City and Minergy Corporation has no basis in statutory language or legislative history. ¶50 The text of Wis. Stat. § 30.294 expressly states that a violation of Wis. Stat. ch. 30 "may be abated by legal action brought by any person." We can discern nothing in chapter 30 to allow us to read an exception into § 30.294 that would disallow the plaintiffs' suit in this case. ¶51 § 30.294 In addition, contravenes Minergy Corporation limits the legislature the the that application authorized legislative argument the of advanced creation § 30.294 citizens history to by of the in this bring of the DNR Wis. City and implicitly case. actions Stat. to The abate unauthorized structures in public waters both before and after the creation of the DNR in 1967.18 ¶52 As far back as 1917, the legislature provided that public nuisances may be enjoined and abated by citizen suits. See § 25, ch. 474, Laws of 1917. A more recent precursor to Wis. Stat. § 30.294 provided that "every obstruction constructed or maintained in or over any navigable waters of this state in violation of this chapter is declared to be a public nuisance, and the construction thereof may be enjoined and the maintenance thereof may be abated by action at the suit of the state or any 18 The DNR was created in 1967. 1967. 23 Section 3, ch. 327, Laws of No. 96-2470 citizen thereof" (emphasis added). Laws of 1959. the Section 30.15(4), ch. 441, The 1959 legislature thus expressly recognized citizen's right to enjoin and abate public nuisances as separate and independent from the state's right to enjoin and abate public nuisances. The legislature enacted the present form of § 30.294 in 1987, 1987 Wis. Act. 374, § 78, 20 years after the creation of the DNR. ¶53 Neither the text nor the legislative history of Wis. Stat. § 30.294 indicates that a citizen's right to abate public nuisances is contingent on the DNR's actions or enforcement decisions or is circumscribed by the procedures set out in Wis. Stat. § 30.03(4)(a). Thus we conclude that the DNR's decision stated in the Settlement Agreement to forego enforcement of the public trust claims does not defeat the plaintiffs' public nuisance claim under Wis. Stat. ch. 30. ¶54 The second defense raised by the defendants to the plaintiffs' Wis. Stat. ch. 30 public nuisance claim is that Wis. Stat. § 30.12(1) does not apply to the Minergy facility or the actions of the Glatfelter Company because the area in issue was never lakebed and the waters were not navigable. ¶55 The brief of the City and Minergy Corporation points out that the issue of the navigability of the water in the area involved in this case and the effects of accretions or passage of time dispute on public in this trust case characteristics and must be of the adjudicated. Settlement Agreement discussed at pp. 3-4 above. 24 area are See in also The brief of No. 96-2470 the City and Minergy Corporation comments on the dispute as follows: Although [the plaintiffs'] lawsuit presupposes that the area in question was once "lakebed," this has not been adjudicated and is not free from dispute. It remains to be shown whether and to what extent the area (which was never covered by more than a few inches of water even at the time of filling) was navigable at the time of the Northwest Ordinance, before the Fox River was dammed. Even if it was, it remains to be determined whether the accretions/or passage of time destroyed its purported "public trust" characteristics. And, despite the name, there is a legitimate argument that Little Lake Butte des Morts is a river (in which case the riparian rights of landowners may be materially greater). Brief for the City and Minergy Corporation at 3 n.1. ¶56 This defense raises, as the defendants concede, an issue that must be adjudicated. It cannot be determined on a motion for to dismiss complaint asserts or a that motion the Grant summary Area judgment. involves a bed The of navigable water and that portions of Little Lake Butte des Morts are navigable waters. We accept these assertions as true for purposes of determining whether the plaintiffs' complaint (as amended) allows them to directly sue the defendants under Wis. Stat. § 30.294. ¶57 For the reasons we have set forth previously, we hold that the plaintiffs may bring suit under Wis. Stat. § 30.294 against the defendants to abate a public nuisance. ¶58 The interconnected plaintiffs' plaintiffs' and involve, assertion that numerous in the 25 one claims form Minergy appear or lease to be another, the and Glatfelter No. 96-2470 Company's conduct are violations of the public trust doctrine. Without a developed factual record in this case, we do not address further the plaintiffs' various claims for relief. We reverse the judgment of the circuit court and remand the cause to the circuit court for proceedings consistent with this opinion. By the Court. The judgment reversed, and the cause is remanded. 26 of the circuit court is No. 96-2470.ssa ¶59 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (Concurring). Although I agree that the plaintiffs' failure to file a notice of claim with the City of Neenah pursuant to Wis. Stat. § 893.80(1)(b) (1993-94)19 does not bar the plaintiffs' action against the City, I cannot join Part II of the per curiam opinion for several reasons. ¶60 First and fundamentally, the holding of the per curiam opinion is not applicable to the facts of this case. curiam opinion holds that because the plaintiffs' The per complaint sought injunctive relief under Wis. Stat. § 30.294, no notice of claim need be filed with the City. In this case, however, the plaintiffs did not seek injunctive relief against the City; they sought a permanent injunction only against Minergy Corporation, a private corporation. Therefore, the holding of the per curiam opinion does not apply to this case. ¶61 Although claiming to adhere to DNR v. City of Waukesha, 184 Wis. 2d 178, 515 N.W.2d 888 (1994), the per curiam opinion essentially overrules the Waukesha case by holding that Wis. Stat. § 893.80(1)(b) does not apply to claims for permanent injunctive relief brought under Wis. Stat. § 30.294. The bench and bar would be better served if the per curiam opinion would acknowledge making forthrightly § 893.80(1)(b) the effect inapplicable of to its claims holding, for namely injunctive relief against governmental bodies. 19 All references to the Wisconsin statutes are to the 199394 version unless otherwise indicated. 1 No. 96-2470.ssa ¶62 Second, if the Waukesha case is not overruled, I would hold that the plaintiffs' failure to file a notice of claim does not require City. dismissal of the plaintiffs' action against the The plaintiffs have asserted 42 U.S.C. § 1983 claims for relief against the City. Wisconsin Stat. § 893.80(1)(b) is not applicable to the § 1983 claims. See Felder v. Casey, 487 U.S. 131 (1988). ¶63 the Third, I can discern no governing rule or principle in court's creation claim requirement. leave about notice a various exceptions to the notice of I believe our decisions regarding Wis. Stat. § 893.80(1)(b) when of attorneys of and claim circuit must be courts filed, uncertain calling into question the status of cases that are pending in or already decided by the courts. I ¶64 The plaintiffs against per sought curiam an that injunction Minergy Corporation, claim with the City.20 is opinion a request for they holds under need that Wis. not because Stat. file a the § 30.294 notice of The underlying rationale for this holding an injunction under § 30.294 requires immediate court action and there is not enough time to file a notice of claim and wait the prescribed 120 days for the City to disallow the claim. See per curiam op. at 12. 20 The per curiam opinion reasons that "the fact that enforcement of the public trust doctrine can be achieved by injunction is significant to our determination of the applicability of Wis. Stat. § 893.80(1)(b)." Per curiam op. at 12. 2 No. 96-2470.ssa ¶65 The holding of the per curiam applicable to the facts of this case. opinion is not The plaintiffs in this case did not seek an injunction against the City. They sought an injunction against another defendant to the action, Minergy Corporation, glass to halt Minergy aggregate plant. The Corporation's fact that construction the plaintiffs of a sought injunctive relief against a defendant other than the City does not excuse the plaintiffs from filing a notice of claim with the City. ¶66 In addition, the rationale of the per curiam opinion does not fit the facts of this case and directly contradicts the Waukesha case. Stat. The per curiam opinion reasons that because Wis. § 30.294 "immediate" expressly injunctive allows relief to the plaintiffs prevent injury, the to seek general statute, Wis. Stat. § 893.80(1)(b), frustrates the plaintiffs' specific right to "immediate" injunctive relief under § 30.294. Per curiam op. at 13. ¶67 The per curiam opinion relies on State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 547 N.W.2d 587 (1996), which held that Wis. Stat. § 893.80(1)(b) does not apply to the open records law. The open records law requires that the record custodian fill or deny a request for a record "as soon as practicable and without delay." Wis. Stat. § 19.35(4). As Auchinleck and the per curiam opinion make clear, time is of the essence in the open records law, which sets forth a detailed procedure to govern both the requester in obtaining a record and the custodian of the record in granting or denying the request. 3 No. 96-2470.ssa The focus of the open records law is to facilitate speedy access to records. ¶68 Unlike the open records law, Wis. Stat. § 30.294 does not set forth a procedure for injunctive relief or a specific enforcement mechanism. Section 30.294 merely provides that violations of chapter 30 "may be prohibited by injunction and may be abated by legal action." Although the per curiam opinion asserts that § 30.294 provides a specific enforcement mechanism, the statute in fact does not. Injunctions brought under § 30.294, like injunctions generally, are governed by ch. 813, which sets forth mechanisms for injunctive relief. ¶69 Even if Wis. Stat. § 30.294 were silent about injunctive relief, a claimant could still seek an injunction to abate a public injunctive nuisance. relief injunction. is A statute available for need a not claimant specify to seek that an See State v. Seigel, 163 Wis. 2d 871, 892, 472 N.W.2d 584 (Ct. App. 1991). "Wisconsin courts may enjoin public nuisances pursuant to their vested equitable powers." Seigel, 163 Wis. 2d at 892-93; see also State v. Weller, 109 Wis. 2d 665, 675, 327 N.W.2d 172 (Ct. App. 1983). Thus contrary to the per curiam opinion's assertion, § 30.294 provides no specific enforcement mechanism. ¶70 Furthermore, the per curiam opinion repeatedly equates injunctive relief with immediacy. According to the per curiam opinion, in all actions seeking an injunction under Wis. Stat. § 30.294, time is of the essence, and an injunction therefore is inconsistent with the notice of claim and the 120-day waiting 4 No. 96-2470.ssa period contained in Wis. Stat. § 893.80(1)(b). See per curiam op. at 12. ¶71 The per curiam opinion obfuscates the differences between a preliminary injunction and a permanent injunction. A preliminary injunction is a pretrial remedy that is granted to preserve the status quo and to prevent harm while an action is pending. A permanent injunction is granted upon a final decision in the case, which may come many months or years after an action is brought. ¶72 Waukesha made clear that unless preliminary injunctive relief is requested, a notice of claim must be filed with the defendant city. § 893.80(1)(b) The Waukesha applies injunctive relief. to an court action held that against Wis. a Stat. city for The Waukesha court reasoned that because no preliminary injunctive relief was requested in that case, the claimant had sufficient § 893.80(1)(b). ¶73 time to comply with Wis. Stat. See Waukesha, 184 Wis. 2d at 193 n.10. In this case the plaintiffs did not seek a preliminary injunction. Moreover, the plaintiffs waited nearly six months (about 165 days) after the lease was signed by the City and Minergy Corporation before bringing an action against the City and the other defendants.21 The lease authorized Minergy Corporation to construct and operate a glass aggregate plant. The plaintiffs thus were on notice 21 that construction of the The City of Neenah and Minergy Corporation entered into the lease on December 6, 1995. The plaintiffs did not file their action until May 22, 1996. 5 No. 96-2470.ssa proposed Minergy facility had been authorized by the City. The plaintiffs had plenty of time to seek a preliminary injunction. Having waited nearly six months to bring their action, the plaintiffs clearly had sufficient time to comply with the notice of claim statute. If the per curiam opinion were adhering to Waukesha as it purports to do, it would have to conclude that the plaintiffs in this case had adequate time to file a notice of claim and to wait 120 days for the City to disallow the claim. ¶74 who According to the per curiam opinion, the plaintiffs sought an injunction in this case against a private corporation for allegedly violating navigable waters law need not have filed a notice of claim with the City. the claimant Resources) in that Waukesha sought (the an state By contrast, Department injunction against of the Natural city of Waukesha for allegedly violating drinking water standards was required to file a notice of claim. The per curiam opinion provides no basis for this distinction. ¶75 Two additional problems are raised in the per curiam opinion. The per curiam opinion errs in its rationale that "the specific procedures precedence over the set general Per curiam op. at 13. rule of forth in Wis. notice Stat. provisions § 30.294 of 'take § 893.80.'" The per curiam opinion misapplies this statutory construction. The rule that the specific statute controls applies only where both statutes relate to the same subject matter. See Schlosser v. Allis-Chalmers Corp., 65 Wis. 2d 153, 161, 222 N.W.2d 156 (1974); Frostman v. State Farm 6 No. 96-2470.ssa Mut. Ins. Co., 171 Wis. 2d 138, 144, 491 N.W.2d 100 (Ct. App. 1992). The per curiam opinion does not explain why these two statutes relate to the same subject matter or why § 30.294 is the more specific statute. been interpreted governmental as body is Furthermore, Wis. Stat. § 893.80 has directing based that on when another a claim statute, provisions of § 893.80(1) nevertheless apply. against the a notice See Waukesha, 184 Wis. 2d at 192-93.22 ¶76 Finally, the per curiam opinion errs in relying on the fact that the plaintiffs' suit was brought in the name of the State. The plaintiffs in this case alleged in their complaint that they were bringing suit as individuals and in the name of the State. The plaintiffs' right to sue under Wis. Stat. § 30.294 is not contingent on their bringing suit in the name of the State. Section 30.294 expressly states, "Every violation of this chapter . . . may be abated by legal action brought by any person." Section 30.294 makes no reference to the State and in no way limits suits to those brought by individuals in the name of the State. 22 The Waukesha court concluded that Wis. Stat. § 893.80(5) "only directs that when a claim is based on another statute, the damage limitations of sec. 893.80(3) do not apply. Section 893.80(5) does not say that the notice provisions of sec. 893.80(1) do not apply." Waukesha, 184 Wis. 2d at 192-93. Wisconsin Stat. § 893.80(5) provides in pertinent 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." 7 No. 96-2470.ssa ¶77 this In addition, the per curiam opinion's reasoning defies court's precedent. Department of Natural entrusted with The Waukesha Resources, enforcing the state court state held that regulatory environmental laws, the agency was exempt from the provisions of Wis. Stat. § 893.80(1)(b). not The Waukesha court explained, "Our holding today, that the state must comply with sec. 893.80(1), applies to all actions that are covered by the statutenot just DNR enforcement proceedings." Waukesha, 184 Wis. 2d at 196. reasoning the State is Under the per curiam opinion's not exempt from complying with § 893.80(1)(b) but citizens suing in the name of the State are. ¶78 In short, the holding and rationale of the per curiam opinion do not apply to the facts of this case, and directly contradict against Waukesha. Minergy The Corporation, plaintiffs not the brought City. an injunction The plaintiffs sought a permanent injunction, not a preliminary injunction, and thus had adequate time to file a notice of claim. Therefore, the plaintiffs were required under Waukesha to comply with Wis. Stat. § 893.80(1)(b). ¶79 The per curiam opinion carves out an exception to Wis. Stat. § 893.80(1)(b) that is not supported by either the facts or the law. The per curiam opinion asserts that the exception is confined to "the unique circumstances of this case." curiam op. at 15. Per The circumstances of seeking an injunction under Wis. Stat. § 30.294, however, are not unique. Several statutes, as well as the common law, expressly recognize the 8 No. 96-2470.ssa right of a person to seek an injunction, including one to abate a public nuisance.23 ¶80 The per curiam opinion opens the door for many claimants to argue for an exemption from the provisions of Wis. Stat. § 893.80(1)(b). Under the per curiam opinion, a claimant need only insert a request for injunctive relief in a complaint to be exempt from the notice of claim provision. According to the per curiam opinion, a claimant need not even pursue or win on the request for injunctive relief. ¶81 The per curiam opinion's holding in effect overrules significantly Waukesha, undercuts City of Racine v. Waste Facility Siting Bd., 216 Wis. 2d 616, 575 N.W.2d 712 (1998),24 and returns the case law to pre-Waukesha decisions that required a notice of claim in suits for money damages, but not for injunctive relief. ¶82 If the per curiam opinion forthrightly held that Wis. Stat. § 893.80(1)(b) would join application the of does not opinion. § 893.80(1)(b) apply to Excluding comports injunctive injunctions with the relief, I from the purpose and operation of the statute. II 23 See, e.g., Wis. Stat. §§ 823.01; 157.70(8)(a); and 66.032(7)(b); see also Wis. Stat. ch. 813 (governing injunctions generally). 24 The court in City of Racine v. Waste Facility Siting Bd., 216 Wis. 2d 616, 622, 575 N.W.2d 712 (1998), relied heavily on Waukesha. 9 No. 96-2470.ssa ¶83 If I were to adhere to Waukesha, I would hold that the plaintiffs' action against the City should not be dismissed. The plaintiffs have asserted § 1983 claims that are based on the same factual allegations giving rise to the state law claims and that are premised doctrine. on violations of See per curiam op. at 10. the state public trust Dismissing the plaintiffs' § 1983 claims for failure to file a notice of claim would be contrary to the principles articulated in Felder, 487 U.S. 131. ¶84 In Felder the United States Supreme Court stated that "enforcement of the notice-of-claim statute in § 1983 actions brought in state court so interferes with and frustrates the substantive right Congress created that, under the Clause, it must yield to the federal interest." Supremacy Felder, 487 U.S. at 151. III ¶85 Since the court held in the 1994 Waukesha decision that Wis. Stat. § 893.80(1)(b) "applies in all actions, not just in tort actions," Waukesha, 184 Wis. 2d at 183, 202,25 this court has decided three other cases in which a claimant's failure to comply with the notice of claim 25 requirement has been The Waukesha court stated that Wis. Stat. § 893.80(1)(b) explicitly exempts only two causes of action from the notice of claim requirement: medical malpractice actions and actions for the negligent inspection of property. See Waukesha, 184 Wis. 2d at 190 n.7. 10 No. 96-2470.ssa challenged.26 In Racine, 216 Wis. 2d at 630, the court strictly adhered to Waukesha. alternative under The Racine court stated that it had "no [§ 893.80(1)(b)] and case law" but to stringently apply § 893.80(1)(b) to all actions as "our hands are tied by the plain language of § 893.80(1)(b)." Racine, 216 Wis. 2d at 628-29. ¶86 However, in two cases, including this case, the court carved out exceptions to Wis. Stat. § 893.80(1)(b) and the "all actions" language of Waukesha.27 ¶87 What is the collective result of these four decisions? In short, "all actions" means all actions except when the court says otherwise. I cannot discern what governing principle or rule guides the court in recognizing exceptions to the notice of claim statute, and the per curiam opinion offers no guidance for identifying other potential exceptions to the statute. ¶88 must be The importance of clarifying when a notice of claim filed overstated. under Wis. Stat. § 893.80(1)(b) cannot be Many cases in Wisconsin courts involve lawsuits in which governmental bodies or their officers, agents or employees are defendants. Between September 1997 and June 1998, the defendants in about one fourth of the cases decided by this court were governmental bodies or their officers, agents 26 or See State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 547 N.W.2d 587 (1996); City of Racine v. Waste Facility Siting Bd., 216 Wis. 2d 616, 575 N.W.2d 712 (1998); and the present case, Gillen v. City of Neenah, No. 96-2470, op. at __ (S. Ct. July __, 1998). 27 See Auchinleck, 200 Wis. 2d at 597; Gillen, op. at __. 11 No. 96-2470.ssa In some of these cases a notice of claim was filed.28 employees. In other cases, according to the complaint, no notice of claim was apparently filed.29 ¶89 failure The to court comply of appeals with Wis. court of the power to proceed. has Stat. held that a § 893.80(1)(b) claimant's deprives a See Figgs v. City of Milwaukee, 116 Wis. 2d 281, 286-87, 342 N.W.2d 254 (Ct. App. 1983), rev'd on other grounds, 121 Wis. 2d 44, 357 N.W.2d 548 (1984).30 In reviewing the court of appeals decision in Figgs, this court concluded that the notice of claim filed was sufficient and thus did not reach the question of whether noncompliance with the notice of claim statute would deprive the court of the power to proceed. See Figgs, 121 Wis. 2d at 51. This court stated, "If the court of appeals erred in respect to the sufficiency of the claim, as we conclude it did, we need not, for the purpose of deciding this case, explore whether an insufficient notice would deprive the court of subject matter jurisdiction and render futile any assertions by a plaintiff of estoppel or laches." Figgs, 121 Wis. 2d at 51. 28 See, e.g., Morris v. Juneau County, No. 96-2507, op. at __ (S. Ct. June 30, 1998); Vivid v. Fiedler, No. 96-1900, op. at __ (S. Ct. July __, 1998). 29 See, e.g., Barland v. Eau Claire County, 216 Wis. 2d 559, 575 N.W.2d 691 (1998); Sullivan v. Waukesha County, 1998 WL 286449, __ Wis. 2d __, __ N.W.2d __ (1998). 30 This court has not yet determined the status of an issue decided in a published court of appeals opinion when the court of appeals decision is subsequently reversed or affirmed by this court on other grounds. 12 No. 96-2470.ssa ¶90 The per curiam opinion errs in two respects. First, it errs when it states that this court in Figgs reached and decided the question whether noncompliance with the notice of claims statute deprives a circuit court of the power to proceed. See per curiam op. at 15-16. The Figgs court did not decide this issue. ¶91 Second, the per curiam misunderstands the language it quotes from a footnote in Figgs. The Figgs footnote merely See per curiam op. at 15-16. explains the difference between subject matter jurisdiction and a circuit court's lack of power to proceed when a party has failed to comply with statutory requirements. According to Figgs, a circuit court always has subject matter jurisdiction but may not have the competence, that is, the power to proceed, if the statutory requirements are not met. See e.g., Sallie T. v. Milwaukee County Dep't of Health & Soc. Serv., No. 96-3147, op. at __ (S. Ct. June 24, 1998) (parties' failure to extend a dispositional order resulted in the circuit court, which had subject matter jurisdiction, losing the power to afford relief to the parties).31 31 In recent years this court has used the term "competence" or "power to proceed" instead of the phrase "subject matter jurisdiction." See Miller Brewing Co. v. LIRC, 173 Wis. 2d 700, 705-06 n.1, 495 N.W.2d 660 (1993); In Interest of B.J.N. and H.M.N., 162 Wis. 2d 635, 654 n.15, 656-58, 469 N.W.2d 845 (1991); Figgs v. City of Milwaukee, 121 Wis. 2d 44, 51-52 n.6, 357 N.W.2d 548 (1984); Mueller v. Brunn, 105 Wis. 2d 171, 176, 313 N.W.2d 790 (1982); In Interest of L.M.C., 146 Wis. 2d 377, 390-92, 430 N.W.2d 352 (Ct. App. 1988). 13 No. 96-2470.ssa ¶92 precursor Several past cases have construed compliance with the statutes to Wis. Stat. § 893.80(1)(b) to be a condition precedent to the commencement32 or maintenance33 of an action, and have treated failure to file a notice of claim as fatal.34 The past cases are not readily reconcilable on this issue. ¶93 In cases involving Wis. Stat. § 893.82, the notice of claim statute applicable to suits against the state or state employees, courts have concluded that failure to give notice is The critical focus, however, is not on the terminology used to describe a court's power to proceed, but on the effect of noncompliance with a statutory requirement on the court's power to proceed. See Miller Brewing Co., 173 Wis. 2d at 706 n.1; B.J.N., 162 Wis. 2d at 656-57; L.M.C., 146 Wis. 2d at 390-92. 32 See, e.g., Foreway Express, Inc. v. Hilbert, 32 Wis. 2d 371, 372, 145 N.W.2d 668 (1966); Seifert v. School Dist., 235 Wis. 489, 497, 292 N.W. 286 (1940); Maynard v. DeVries, 224 Wis. 224, 228, 272 N.W. 27 (1937). 33 See, e.g., Schwartz v. City of Milwaukee, 43 Wis. 2d 119, 128, 168 N.W.2d 107 (1969). 34 See Sambs v. Nowak, 47 Wis. 2d 158, 167, 177 N.W.2d 144 (1970)(refusing to apply the estoppel doctrine to bar a governmental body from asserting defense of noncompliance with the notice of claim statute). But see Fritsch v. St. Croix Cent. Sch. Dist., 183 Wis. 2d 336, 344, 515 N.W.2d 328 (Ct. App. 1994)(applying equitable estoppel to bar a governmental body from using noncompliance with the notice of claim statute as a defense). 14 No. 96-2470.ssa jurisdictional and may not be waived by the defendant's failure to plead noncompliance as an affirmative defense.35 ¶94 It is regrettable that the per curiam opinion has not taken the opportunity today to articulate the court's governing principle or rule in applying Wis. Stat. § 893.80(1)(b). court's unpredictable application of § 893.80(1)(b) The leaves attorneys and courts guessing about when a notice of claim must be filed and calls into question the status of cases now pending or already decided by the courts. ¶95 For the foregoing reasons, I write separately. ¶96 I am authorized to state that Justice Janine P. Geske and Justice Ann Walsh Bradley join this concurrence. 35 See, e.g., Ibrahim v. Samore, 118 Wis. 2d 720, 726, 348 N.W.2d 554 (1984); Oney v. Schrauth, 197 Wis. 2d 891, 904, 541 N.W.2d 229 (Ct. App. 1995); J.F. Ahern Co. v. Wisconsin State Bldg. Comm'n, 114 Wis. 2d 69, 83, 336 N.W.2d 679 (Ct. App. 1983). Although Wis. Stat. § 893.80(1)(b), the municipal notice of claim statute, and Wis. Stat. § 893.82(3), the state notice of claim statute, have similar purposes, the statutes have significant differences. See Lewis v. Sullivan, 188 Wis. 2d 157, 169, 524 N.W.2d 630 (1994)(the notice provision of § 893.82(3) does not apply to injunctive and declaratory relief). 15
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