PUBLISHED OPINION
Case No.: 96-0894
Complete
Title
of
Case:GEORGE JOHNSON and
CECIL JOHNSON,
Plaintiffs-Appellants,
v.
CITY OF EDGERTON, a Municipal
Corporation,
Defendant-Respondent.
Submitted
on Briefs: November 12, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: December 5, 1996
Opinion
Filed: December
5, 1996
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Daniel
R. Moeser
so
indicate)
JUDGES: Eich,
C.J., Dykman, P.J., and Deininger, J.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the plaintiffs-appellants the
cause was submitted on the briefs of Randall R. Garczynski of Garczynski
& Brennan Law Offices, S.C., of Elkhorn.
Respondent
ATTORNEYSFor the defendant-respondent the
cause was submitted on the brief of Ronald J. Kotnik and Peter A.
Martin of Lathrop & Clark of Madison.
COURT OF
APPEALS DECISION DATED AND
RELEASED December
5, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0894
STATE OF WISCONSIN IN
COURT OF APPEALS
GEORGE
JOHNSON and CECIL JOHNSON,
Plaintiffs-Appellants,
v.
CITY
OF EDGERTON, a Municipal Corporation,
Defendant-Respondent.
APPEAL
from a judgment of the circuit court for Dane County: DANIEL R. MOESER, Judge. Affirmed.
Before
Eich, C.J., Dykman, P.J., and Deininger, J.
EICH,
C.J. George and Cecil Johnson appeal
from a summary judgment dismissing their action against the City of
Edgerton. They sued the City for
injunctive relief and damages when they were unable to gain access to their
property from the unimproved "stub-end" of a city street. The trial court dismissed the action,
concluding that the City was immune from suit under the "governmental
immunity" provisions of § 893.80(4), Stats.,[1]
for its refusal to open the street to the Johnsons' lot line.
The
issues are: (1) whether the immunity granted by § 893.80(4), Stats., is limited to actions in tort,
or whether it extends to equitable actions seeking injunctive relief; and (2)
whether the City is immune from the Johnsons' claims on the facts of this
case. We answer both questions in the
affirmative and affirm the judgment.
The
basic facts are not in dispute. The
Johnsons acquired the property in 1993.
It was one of three lots contained in a plat in the Town of Albion
abutting the border between the town and the City of Edgerton. The plat was first laid out in a Certified
Survey Map filed by the developer in 1963 and approved by Dane County and,
because it was within the City's extraterritorial plat-approval jurisdiction,
by the City as well. The Johnsons' lot,
known as Lot 3, runs along the city/town border and abuts what the parties call
the "stub-end" of Sweeney Road, a dedicated, but partially unopened,
city street. While the road is shown on
City plats as ending at the town line, the last block—between the last street
in the City and the town line—is wholly unimproved and has never been opened
for travel. This stub-end is no more
than a grassy lot that, while located in the City, abuts the Johnsons' property
in the Town of Albion.
After
the Johnsons purchased Lot 3, obtained a construction permit from the town and
began construction of a home, they asked the City's public works director, Stan
Strandlie, for permission to use the unopened stub-end of Sweeney Road for
construction access to the lot.
Strandlie granted the request, limiting it to a period of thirty days
commencing November 17, 1993, and advised the Johnsons that in order to acquire
permanent access, they would need permission from the City Council and Plan
Commission.
When
the access permit expired, Strandlie extended the temporary-use period for an
additional thirty days to enable the Johnsons to complete construction of their
home and formally request the City to improve and open Sweeney Road to the town
line. They had, in the meantime,
received a driveway permit from the Town of Albion, allowing them access to
their property from an adjoining town road.
Instead,
the Johnsons served a "Notice of Injury" on the City pursuant to § 893.80(1)(a),
Stats., as a precursor to
bringing this lawsuit.[2] The notice stated that the City's actions in
restricting access to their lot over the stub-end of Sweeney Road injured them
financially, physically and emotionally.
Shortly
thereafter, the Johnsons applied to the City to open Sweeney Road to the town
line, and the Plan Commission and City Council denied the application. The Johnsons commenced this action
approximately one year later, alleging, among other things, that the City
should be estopped from refusing to open the stub-end of the road because such
actions were contrary to the City's "public representations." Alleging that the City's actions irreparably
harmed them, they sought an injunction requiring the City to open the road to
their property. Their complaint also
stated a claim seeking both compensatory and punitive damages for the City's
negligence in "denying [them] access" to the road. They appeal the
judgment dismissing their action.
I.
Application of § 893.80(4) to "Equitable" Actions
Consideration
of the parties' positions will be aided, we think, by a preliminary reference
to the statute as a whole. Section
893.80(1), Stats., provides
generally that, with exceptions not pertinent here, no action may be brought
against a governmental subdivision for "acts done in [its] official
capacity" unless the plaintiff has first, within 120 days of the event
giving rise to the claim: (a) served a notice of the "circumstances of the
claim" on the subdivision; and (b) presented a specific claim to the
subdivision, and the claim has been denied.
Section 893.80(4) (subsections (2) and (3) contain special
provisions not pertinent here) bars "any suit" against a governmental
subdivision "for acts done in the exercise of legislative,
quasi-legislative, judicial or quasi-judicial functions"—functions which,
as we noted, supra note 1, the cases describe as
"discretionary" in nature.
The
Johnsons argue that the immunity provided by
§ 893.80(4), Stats.,
is limited to actions in tort seeking money damages, and does not apply to
actions seeking "equitable" or injunctive relief. In so arguing, they place principal reliance
on two cases, Nicolet v. Village of Fox Point, 177 Wis.2d 80, 501
N.W.2d 842 (Ct. App. 1993), and Harkness v. Palmyra-Eagle School District,
157 Wis.2d 567, 460 N.W.2d 769 (Ct. App. 1990).[3]
In
Nicolet, we considered the notice and claim requirements of
§ 893.80(1), Stats., and,
relying in large part on the legislative history of the statute as a whole, we
held that those requirements applied only to actions in tort. We reached a similar conclusion in Harkness—based
largely on the same legislative history—with respect to the immunity provisions
of § 893.80(4), holding that they, too, applied only to tort actions. The question before us, however, is not so
much what Nicolet and Harkness say, but whether
they have been eviscerated, if not eradicated, by the supreme court's more
recent decision in DNR v. City of Waukesha, 184 Wis.2d 178, 515
N.W.2d 888 (1994).
Like
Nicolet, DNR concerned the notice and claim
provisions of § 893.80(1), Stats. The Department of Natural Resources sued the
City of Waukesha Water Utility, seeking not only penalties and forfeitures but
an injunction requiring the utility to bring its water supply system in
compliance with state regulations. DNR,
184 Wis.2d at 186-87, 515 N.W.2d at 891.
The utility moved to dismiss on grounds that the department failed to
serve the notice of the circumstances of its claim required by
§ 893.80(1), as a condition precedent to the lawsuit. The court upheld the trial court's dismissal
of the action, holding that "the notice of claim statute, sec. 893.80(1), Stats., applies in all actions, not
just in tort actions." Id.
at 183, 515 N.W.2d at 890, and overruled both Harkness and Nicolet
to the extent they held to the contrary.
Id. at 191, 515 N.W.2d at 893.
The
Johnsons, pointing out that the DNR court was concerned only with
the notice and claim provisions of § 893.80(1), Stats., not with § 893.80(4), maintain that the decision is
precedentially binding only as to subsection (1). Given the court's analysis, however, we question whether the
decision may be so limited.
The
DNR court began by discussing the statute's history, noting in
particular that, as created in 1963,[4]
its opening line stated, "No action founded on tort ... shall be
maintained against any ... governmental subdivision" absent compliance
with the statutory notice and claim provisions. Then, noting that the
legislature subsequently amended the statute to delete the "founded on
tort" language, the court concluded the "plain language" of the
statute as it exists today "clearly does not limit the application of the
notice of claim requirements to tort claims." DNR, 184 Wis.2d at 190, 515 N.W.2d at 892.
The
DNR court continued by referring to its opinion in Figgs v.
City of Milwaukee, 121 Wis.2d 44, 52, 357 N.W.2d 548, 553 (1984)—where,
considering the notice and claim provisions of § 893.80(1), Stats., it concluded—again, largely on
the basis of the statute's legislative history—that "sec. 893.80" was
not limited to tort claims and criticized our decision in Nicolet
in which, as indicated, we reached the opposite conclusion.
In Nicolet,
the court of appeals characterized this court's conclusion in Figgs
regarding the universal applicability of sec. 893.80(1), Stats., as dicta that the court need
not follow. Regardless of whether our
conclusion in Figgs was dicta, it was the correct
conclusion. The language of the statute
clearly and unambiguously makes the notice of claim requirements applicable to
all actions. The legislature's decision
to remove the language limiting the statute to tort claims reinforces this
conclusion. Thus we now hold that sec.
893.80 applies to all causes of action, not just those in tort and not just
those for money damages.
DNR, 184 Wis.2d at 191, 515 N.W.2d at 893 (citations omitted). The court then overruled Nicolet,
Harkness, and another similar case, "to the extent [they]
... hold that sec. 893.80(1) applies only to tort claims and claims for money
damages." Id.
In
our opinion, while the supreme court's decision in DNR was
limited to § 893.80(1), Stats.,
its reasoning compels a similar conclusion with respect to
§ 893.80(4). We think so for three
reasons. First, in Figgs—and
especially in DNR—the supreme court found significant, if not
controlling, the absence of a specific limitation to tort claims in
§ 893.80(1). The same may be said
for the "immunity" provisions of subsection (4); they do not now
contain—nor have they ever contained—any such limitation. The subsection states, simply and plainly,
that acts done in the exercise of the subdivision's discretionary functions are
immune from "any suit."
Second,
the immunity from any suit language of § 893.80(4), Stats., significant in itself, becomes
even more so when considered in context.
Subsection (4) makes two points.
It says first that "[n]o suit ... for ... intentional torts"
of a government agency or employee in the course of government activity may be
commenced under any circumstances.
(Emphasis added.) It then
states: "Nor may any suit be brought" against a government
agency or employee "for acts done" in the exercise of
quasi-legislative or judicial functions.
(Emphasis added.) Not only is
there, as we have just noted, no limiting language here, but in the preceding
clause of the same subsection, the legislature made a specific reference to
actions for intentional torts. We
presume, of course, "that the legislature chose its terms carefully and
precisely to express its meaning."
Ball v. District No. 4, Area Bd., 117 Wis.2d 529, 539, 345
N.W.2d 389, 394 (1984). When the
legislature uses different terms in a statute—particularly in the same
section—we presume it intended the terms to have distinct meanings. American Motorists Ins. Co. v. R &
S Meats, Inc., 190 Wis.2d 196, 214, 526 N.W.2d 791, 798 (Ct. App.
1994). We do not believe it would be
reasonable to read a "torts-only" limitation into the "any
suit" language of § 893.80(4).
We think that to do so would run hard into the supreme court's reasoning
in DNR, as well as the language of the statute itself.
Finally,
we note that the immunity provisions of § 893.80(4), Stats., derive from considerations of
public policy. They are designed to
"protect public officers from being unduly hampered or intimidated in the
discharge of their functions by threat of lawsuit or personal liability," Scarpaci
v. Milwaukee County, 96 Wis.2d 663, 682, 292 N.W.2d 816, 825 (1980),
and, more generally, to "`ensure that courts will refuse to pass judgment
on the policy decisions made by coordinate branches of government.'" Hillman
v. Columbia County, 164 Wis.2d 376, 397, 474 N.W.2d 913, 921 (Ct. App.
1991) (quoted source omitted). A
related consideration is, of course, "the drain on valuable time" of
public agencies and officials that can be "caused by such
actions." Lister v. Board of
Regents, 72 Wis.2d 282, 299, 240 N.W.2d 610, 621 (1976). These considerations apply just as earnestly
to an equitable action seeking injunctive relief against the agency or the
official as they do to one for the recovery of money.
We
conclude, therefore, that the official immunity provisions of § 893.80(4),
Stats., like the notice and claim
provisions of § 893.80(1), are not limited to tort or money-damage actions, but
are equally applicable to actions which, like the Johnsons', seek injunctive
relief against the governmental subdivision or employee.[5]
II.
Application of the Immunity Rule
We
next consider whether, on this record, the City is immune under
§ 893.80(4), Stats.
As
we noted above, the statute prohibits actions against public agencies or
employees for "acts done in the exercise of legislative,
quasi-legislative, judicial, or quasi-judicial functions." The quoted terms have been recognized as
synonymous with "discretionary acts"—acts involving the exercise of
discretion and judgment. Sheridan
v. City of Janesville, 164 Wis.2d 420, 425, 474 N.W.2d 799, 801 (Ct.
App. 1991). A nonimmune
"ministerial" act, on the other hand, is one where the duty is
"`absolute, certain and imperative, involving merely the performance of a
specific task ... and the time, mode and occasion for its performance [are
defined] with such certainty that nothing remains for [the exercise of]
judgment or discretion.'" Id.
(quoted source omitted).
The
Johnsons argue first that once the City decided to join in the approval of the
Certified Survey Map of the Town of Albion plat in 1978, any and all further
acts on the City's part—including, we presume, the primary act of which they
complain: the City's refusal to open Sweeney Road—were purely ministerial in
nature. The argument, which is unsupported
by citations to any legal authority for the propositions advanced, is
unpersuasive. See Phillips
v. Wisconsin Personnel Comm'n, 167 Wis.2d 205, 228, 482 N.W.2d 121, 130
(Ct. App. 1992) (court of appeals does not consider arguments unsupported by
references to legal authority).
Next,
the Johnsons liken the City's actions to those involved in the approval and
rejection of plats, which, they contend, are "ministerial" acts as a
matter of law. They base their argument
on two plat-rejection cases, Greenlawn Memorial Park v. Neenah Town Board,
270 Wis. 378, 71 N.W.2d 403 (1955), and State ex rel. Columbia Corp. v.
Town Board, 92 Wis.2d 767, 286 N.W.2d 130 (Ct. App. 1979), where this
court and the supreme court used the term "ministerial" to describe
the municipality's actions in disapproving a cemetery and a land development
plat. Both cases arose in entirely
different contexts, however, and neither deals in any way with considerations
of governmental immunity under § 893.80(4), Stats., or with the "discretionary/ministerial"
distinctions found in the body of law that has built up around the statute
since its enactment in 1963.[6]
Both
of the Johnsons' claims against the City—for "equitable estoppel" and
for negligence—are based on allegations that the City improperly denied them access
to Lot 3, and they seek not only compensatory and punitive damages for that
denial, but also an injunction requiring the City to construct and open Sweeney
Road to their property.[7]
As
the City correctly points out, the standard applicable to opening streets is
one of public convenience and necessity.
See 10A Eugene McQuillan,
The Law of Municipal Corporations
§ 30.31, at 274-75 (3d ed. 1990). In
our opinion, such a determination necessarily involves the exercise of
discretion. For example, in Jefferson
v. Eiffler, 16 Wis.2d 123, 132, 113 N.W.2d 834, 839 (1962), we stated:
The common council is the judge of the public necessity
for opening up its streets ... and as to whether any public convenience or use
will be subserved thereby. The public
use is the dominant interest and the public authorities are the exclusive
judges when and to what extent the street shall be improved.
(Footnote omitted.)
That
is not at all the type of "discretionary" action—as that term is
discussed above—to which immunity attaches under § 893.80(4), Stats.[8]
We
conclude, therefore, that the trial court properly dismissed the Johnsons'
complaint.
By
the Court.—Judgment affirmed.
[1] Section 893.80(4), Stats., which we discuss in more detail below, has been held
to render governmental subdivisions and their officers immune from suit for
their "discretionary," as opposed to "ministerial,"
actions.
[2] As we also discuss in greater detail below,
§ 893.80(1), Stats.,
conditions suits against governmental subdivisions and their employees on prior
service of a notice and claim on the municipality, and the municipality's
denial of the claim.
[3] Both Nicolet and Harkness
were overruled, at least in part, by DNR v. City of Waukesha, 184
Wis.2d 178, 515 N.W.2d 888 (1994). See
infra discussion.
[5] In so deciding, we are aware that we based
our holdings in Nicolet and Harkness largely on the
fact that § 893.80, Stats.,
was created in response to the supreme court's decision in Holytz v.
Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962), abolishing the doctrine
of municipal tort immunity in Wisconsin, and suggesting that the
legislature could, if it desired, regulate the form and manner in which such
suits could be brought. Id.
at 41, 115 N.W.2d at 625-26. The
supreme court was not unaware of its decision in Holytz when it
decided DNR, where, as we pointed out, it elected to rely instead
on the "plain language" of § 893.80(1)—and the absence of any express
torts-only restriction—to reach a result entirely contrary to Nicolet
and Harkness, and indeed to overrule both cases on the
issue.
[6] In Greenlawn Memorial Park v. Neenah
Town Board, 270 Wis. 378, 71 N.W.2d 403 (1955), which was decided prior
to the creation of § 893.80(4), Stats.,
the supreme court held that, once a town board has determined that it has no
objections to a cemetery plat, mandamus will lie to force approval of the plat
because, under the applicable statutes, once the predicate findings have been
made, the board has no discretion and approval is required. Id. at 385, 71 N.W.2d at
407-08. It was in that context that the
court described the act of plat approval as "ministerial" in the
sense that it could be enforced through mandamus. Id.
State ex rel. Columbia
Corp. v. Town Board, 92
Wis.2d 767, 286 N.W.2d 130 (Ct. App. 1979), was a certiorari review of a town's
denial of a plat where the town board argued it had the authority under the
plat-approval statutes, § 236.13(1)(b) through (e), Stats., to impose as requirements its own interpretations of
the chapter's broad promotion-of-health-and-welfare statement of purpose
outlined in § 236.01. We held that the broad "preamble to the
chapter" conferred no authority on local units of government to reject
plats. Id. at 779, 286
N.W.2d at 136. Then, noting that the
town disagreed with that interpretation, objecting that it would "render[]
its role in reviewing plats `purely ministerial,'" we said we believed
that was a "fair characterization" of the town's role under the
plat-review statutes. We stated that
under the platting statutes, a town is not free "`to make up requirements
for each new plat submitted,'" but must "develop and announce"
general standards for acceptance and apply those standards on a case-by-case
basis. Id. at 780-81, 286
N.W.2d at 136-37 (quoted source omitted).
That was the sense and context in which the term "ministerial"
was used in Columbia Corp.
Neither
case is at all instructive—much less compelling—on the issues before us.
[7] In their estoppel claim, the Johnsons allege
that the City made certain undescribed "representations" regarding
the town plat in which their lot was located, that they relied on those
representations and, "contrary to [its] public representations ... [the
City] denied plaintiff[s] access to Lot 3 over Sweeney Road," causing them
irreparable harm. They sought relief in
the form of "compensatory damages ... and injunctive relief requiring the
... City ... to open, improve and maintain Sweeney Road so as to provide ...
ingress and egress to plaintiff[s'] Lot 3."
The
Johnsons' negligence claim alleged that they were injured "as a direct and
proximate result of [the City]'s negligent act in denying access to Lot
3."
[8] To the extent either of the Johnsons' claims
may be said to challenge the City's grant or denial of temporary use of the
stub-end of Sweeney Road, we feel the same considerations apply. The City points out, for example, that its
ordinances are silent as to the issuance of temporary-use permits for access
over dedicated, but unopened, streets.
And we think it goes without saying that to the extent any City official
had the inherent authority to permit—or deny—such temporary use, such authority
was plainly discretionary within the meaning of § 893.80(4), Stats., and the cases decided
thereunder.