PUBLISHED OPINION
Case No.: 94-0632
†Petition for
review filed
Complete
Title
of
Case:ASSOCIATION OF
CAREER EMPLOYEES,
an unincorporated association,
WYNN DAVIES, and LLOYD RIDDLE,
Plaintiffs-Appellants,
v.
JAMES R. KLAUSER, Secretary of the
Department of Administration,
GERALD WHITBURN, Secretary of the Wisconsin
Department of Health and Human Services,
RONALD R. FIEDLER, Secretary of the
Wisconsin Department of Transportation,
ERVIN CONRADT, Commissioner of Transportation,
ROBERT H. THOMPSON, Administrator of the
Division of Emergency Government,
JON E. LITSCHER, Secretary of the Wisconsin
Department of Employment Relations,
ROBERT LAVIGNA, Administrator of the
Division
of Merit Recruitment and Selection of the
Wisconsin Department of Employment
Relations,
Defendants-Respondents.†
Oral
Argument: February 9, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: June 29, 1995
Opinion
Filed: June
29, 1995
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: P.
Charles Jones
so
indicate)
JUDGES: Eich,
C.J., Gartzke, P.J., Sundby, J.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the plaintiffs-appellants the
cause was submitted on the briefs of Richard Thal and Cheryl Rosen
Weston of Cullen, Weston, Pines & Bach of Madison. There was oral argument by Richard Thal.
Respondent
ATTORNEYSFor the defendants-respondents the
cause was submitted on the brief of James E. Doyle, attorney general,
and Charles D. Hoornstra, assistant attorney general, of Madison. There was oral argument by Charles D.
Hoornstra.
COURT OF APPEALS DECISION DATED AND RELEASED June
29, 1995 |
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. 94-0632
STATE OF WISCONSIN IN
COURT OF APPEALS
ASSOCIATION
OF CAREER EMPLOYEES,
an
unincorporated association,
WYNN
DAVIES, and LLOYD RIDDLE,
Plaintiffs-Appellants,
v.
JAMES
R. KLAUSER, Secretary of the
Department
of Administration,
GERALD
WHITBURN, Secretary of the Wisconsin
Department
of Health and Social Services,
RONALD
R. FIEDLER, Secretary of the
Wisconsin
Department of Transportation,
ERVIN
CONRADT, Commissioner of Transportation,
ROBERT
H. THOMPSON, Administrator of the
Division
of Emergency Government,
JON E.
LITSCHER, Secretary of the Wisconsin
Department
of Employment Relations,
ROBERT
LAVIGNA, Administrator of the Division
of
Merit Recruitment and Selection of the
Wisconsin
Department of Employment Relations,
Defendants-Respondents.
APPEAL
from an order of the circuit court for Dane County: P. CHARLES JONES, Judge.
Reversed and cause remanded.
Before
Eich, C.J., Gartzke, P.J., and Sundby, J.
EICH,
C.J. The Association of Career
Employees, an unincorporated professional association of active and retired
career state employees, and two individual Wisconsin taxpayers appeal from an
order dismissing their action seeking to have several appointments to state
offices declared invalid for violating state civil service laws. We reverse the order.
The
plaintiffs brought this action for declaratory judgment in circuit court
seeking a determination that the named defendants--heads of various state
agencies--violated state civil service laws and regulations when they hired
several aides and assistants.
Specifically, the trial court described plaintiffs' action as one
alleging "conduct on the part of the defendants purportedly designed to
undercut the civil service system in Wisconsin and create a patronage system
under the guise of filling improperly designated `project positions' with
political cohorts."[1]
Under
state civil service laws and regulations, an agency may create and fill
"project positions" only where a temporary increase in workload
causes an extraordinary need for the positions or where an agency undertakes a
project that is not a regular agency function and which has an established
probable termination date. Section
230.27(1), Stats. The plaintiffs claimed that the appointments
did not fit either element of a project position but rather were
"political patronage" appointments that violated established laws,
rules and procedures regulating the creation and filling of project positions
and the civil service laws in general.
Defendants
moved to dismiss the action, arguing (among other things) that the issues
raised were within the exclusive jurisdiction of the Wisconsin Personnel
Commission.[2] The trial court, while believing the
commission should be given the opportunity to resolve the parties' dispute
because of the "factual and policy making issues implicated" by the
plaintiffs' alleged actions, stated that it was unable to determine whether the
commission would exercise jurisdiction in the case. As a result, the court decided to retain jurisdiction over the
action and directed the plaintiffs to pursue their complaint before the
commission, staying further court proceedings pending the commission's "jurisdictional
decision."
As
directed by the court, plaintiffs filed a "Request for Relief" with
the commission, which essentially restated the allegations of their declaratory
judgment complaint in circuit court.
The request asked the commission to declare the appointments illegal and
void and to enjoin defendants from committing violations of the civil service
laws in the future.
Defendants
moved to dismiss the agency proceeding, arguing that: (1) plaintiffs
lacked standing to pursue their claims before the commission; (2) the
controversy was moot because all of the challenged appointees had since left
office; and (3) plaintiffs had not stated a claim for which the commission
could provide relief.
The
commission denied the motion, concluding that plaintiffs had standing to seek
relief before the agency both as taxpayers under § 230.43(5), Stats.,[3]
and as "interested persons" under the declaratory ruling statute,
§ 227.41, Stats.[4] The commission also rejected defendants'
argument that the controversy was moot, noting that plaintiffs were not
alleging "simple malfeasance" in failing to follow the civil service
laws with respect to "an isolated transaction," but instead were
claiming that the defendants were engaged in a pattern of recurring activity
designed to circumvent the state civil service laws.[5]
Defendants
then filed a second motion to dismiss, this time arguing that: (1) the
commission could not consider the plaintiffs' "Request for Relief"
because it had not been filed within thirty days of the contested appointments
as required by § 230.44(3), Stats.;[6]
and (2) the commission lacked authority to issue a declaratory ruling under
§ 227.41, Stats., as to the
validity of the appointments or, alternatively, the commission should not
exercise any discretion it did have to rule on the request.
Plaintiffs
argued that defendants waived any timeliness challenge under § 230.44, Stats., by repeatedly arguing that the
commission not only had exclusive jurisdiction over the matter but was better
suited than the trial court to consider the issues in the case.
The
commission granted defendants' motion to dismiss, concluding that plaintiffs'
failure to file an "appeal" with the commission within thirty days of
each challenged appointment deprived the commission of subject matter jurisdiction.[7]
The commission next
considered whether it should entertain plaintiffs' request as one for a
declaratory ruling under § 227.41, Stats. As we have noted, the commission had
concluded earlier that plaintiffs had standing to pursue declaratory relief
under § 227.41. This time, however,
emphasizing that plaintiffs did not argue the merits of § 227.41 jurisdiction
in response to defendants' second dismissal motion but instead claimed that
defendants had waived any objection to such jurisdiction, the commission
concluded that plaintiffs "have no interest in pursuing this matter here
as a declaratory ruling proceeding" and dismissed the entire proceeding.[8]
Plaintiffs
did not seek judicial review of the commission's decision under ch. 227, Stats., but returned to circuit court
assuming that the court would, as indicated in its earlier decision, reassert
its own jurisdiction over the declaratory judgment action in light of the
commission's decision not to act in the matter.
Defendants
responded with still another motion to dismiss, arguing again that the
commission--which had just declined to assert jurisdiction in the case on
defendants' own motion--had exclusive jurisdiction over the subject matter
of the proceeding.[9]
The
court ruled that because plaintiffs failed to appeal to the commission from
each appointment within thirty days under § 230.44, Stats., and did not seek judicial
review under ch. 227, Stats., of
the commission's decision dismissing their request for relief, they were
"prohibited from seeking review of the [defendants'] actions in [circuit]
court" because they "failed to follow the statutorily prescribed
route for review of [those] actions."
Plaintiffs appeal from that decision.
The
trial court's decision implicates three long-standing principles of
administrative law and procedure: the "primary jurisdiction" rule,
the "exhaustion-of-remedies" rule and the "exclusivity"
rule.
The
primary jurisdiction rule directs that where an administrative remedy is
provided by statute, relief should first be sought from the appropriate
administrative agency before bringing the matter to court. State ex rel. Terry v. Traeger,
60 Wis.2d 490, 499, 211 N.W.2d 4, 9 (1973).
It is a rule not of power or jurisdiction but of "`comity,'"
and is designed to promote "`proper relations between the courts and
administrative agencies'" by recognizing the expertise and policy-making
functions of administrative agencies. Wisconsin
Bell, Inc. v. DOR, 164 Wis.2d 138, 144, 473 N.W.2d 587, 589-90 (Ct.
App. 1991) (citations and quoted source omitted). The rule "asks the trial court to consider whether judicial
or administrative action in the particular matter `would best serve the ends of
justice.'" Id. 473
N.W.2d at 590 (quoted source omitted).
And where the case is one within the agency's purview, the agency should
hear the case first unless there is a valid reason for the court to intervene
and exercise its jurisdiction. Id. The rule assumes concurrent jurisdiction in
both the court and the agency and invokes the court's discretion to determine
whether to defer to the agency in a particular case. City of Brookfield v. Milwaukee Metro. Sewerage Dist.,
171 Wis.2d 400, 420, 491 N.W.2d 484, 491 (1992).
The
exhaustion-of-remedies rule requires parties involved in administrative
proceedings to complete those proceedings before going to court. Nodell Inv. Corp. v. City of Glendale,
78 Wis.2d 416, 424, 254 N.W.2d 310, 315 (1977). Like the primary jurisdiction rule, "exhaustion" is a
rule not of power or jurisdiction but of comity and "judicial
restraint." Id. It differs from the primary jurisdiction
rule in that it is directed against attempts to seek judicial review of
uncompleted administrative proceedings, whereas the primary jurisdiction rule
applies in situations where there has been no prior resort to the
administrative agency. Id.
at 427 n.13, 254 N.W.2d at 316.
Finally,
the exclusivity rule--like the others, a rule of "policy, convenience and
discretion"[10]--provides
that where administrative action has taken place, and where a statute sets
forth a specific procedure for review of that action, the statutory remedy is
exclusive and the parties cannot seek judicial review of the agency action
through other means. Id.
at 422, 254 N.W.2d at 314.
Plaintiffs
argue first that the trial court erred in dismissing their action because they
have the right as taxpayers to pursue their case in circuit court regardless of
whether the personnel commission has jurisdiction over one or all aspects of
the case, or whether administrative or other judicial remedies exist which they
failed to pursue. They cite § 230.43(5), Stats.,
which provides as follows:
The right of any taxpayer to bring any action to
restrain the payment of compensation to any person appointed to ... any office
... in violation of this subchapter shall not be limited or denied by reason of
the fact that the office ... has been classified as, or determined to be, not
subject to competitive examination; however, any judgment or injunction in any
such action shall be prospective only, and shall not affect payments already
made or due to such persons ....
We
agree with the trial court that this section does not provide a special
mechanism for taxpayer challenges to civil service appointments in circuit
court. By its plain terms, it states
simply that the right of a taxpayer to sue to restrain the payment of future
compensation to persons appointed to office in violation of ch. 230, Stats., shall not be limited by the
fact that the office involved is not subject to merit appointment--that is, not
within the classified service.[11] The statute does not confer any special
right of action.[12]
We
thus consider the merits of plaintiffs' challenges to the dismissal of their
action.
Plaintiffs
argue that both the commission and the circuit court erred in concluding that
any relief either before the agency or in court was barred by the plaintiffs'
failure to "appeal" the individual appointments to the commission
under § 230.44, Stats.,
and/or to seek judicial review of the commission's decision dismissing their
request for relief under ch. 227, Stats. We agree.
As
the trial court itself recognized in rejecting the defendants' mootness
argument--and as the commission noted in its decision:
[P]laintiffs are not ... alleging a simple failure on
the part of defendants to follow the civil service code with respect to an
isolated appointment. Rather, [they]
seek a declaratory ruling that the defendants have engaged in a pattern or
practice of recurring activity designed to circumvent the protections of the
civil service system and to perpetuate a political patronage system in state
employment.
We
join in that characterization of the plaintiffs' action. It is much more than a challenge to one, or
even a few, appointments. It seeks to
have declared illegal what is alleged to be an intentional and systematic
attempt to circumvent time-honored civil service laws for partisan political
purposes. Section 230.44, Stats., on the other hand, appears to
be designed to deal with appeals by employees from actions affecting their
jobs, such as discharge,[13]
reassignment,[14]
reinstatement[15] or
promotion decisions.[16] While the statute's individualized appeal
procedures may be available to persons other than the affected employees (a
point we do not decide), they are, on their face, ill suited to the broad
challenges mounted by the plaintiffs in this action.[17]
We
conclude, therefore, that insofar as either the commission or the court, or
both, based dismissal of the plaintiffs' actions on the "appeal" time
limits in § 230.44, Stats.,
it was error to do so.
To
the extent the trial court's decision is based on application of exhaustion or
exclusivity principles to plaintiffs' failure to seek judicial review of the
commission's decision not to entertain their "request for relief"
under § 227.41, Stats., we reach
a similar result.[18]
We
reject the notion that plaintiffs could not rely on the trial court's express
reservation of jurisdiction over the declaratory judgment action. As we noted above, the court, stating that
it was unable to determine whether the commission would "accept" or
"assume" jurisdiction over the dispute, decided not to dismiss the
lawsuit but instead to hold it in abeyance to "await the Commission's
jurisdictional decision." The
court stated:
[If] the Personnel Commission ... den[ies] jurisdiction
... this court will continue jurisdiction.
If ... the Personnel Commission ... accept[s] jurisdiction over the
issues raised, I will dismiss this action.
If the Personnel Commission accepts jurisdiction over some issues ...
and rejects jurisdiction over other issues ... plaintiffs can seek relief on
the rejected issues ... in this action.
Highlighting
the language in § 227.41(1), Stats.,
that an agency "may ... issue a declaratory ruling" on
petition of interested parties, the commission exercised the discretion
implicit in the highlighted word, stating that it "decline[d] to
proceed with this matter under § 227.41." (Emphasis added.) It did so for two reasons. First, the commission felt the plaintiffs'
emphasis on "waiver" in its argument in response to defendants'
second motion to dismiss signified a lack of interest in pursuing the request
for a declaratory ruling on the merits.
Second, the commission concluded that its decision would be of little
consequence in any event because, under the terms of the trial court's decision
to send the case to the commission, the court itself would eventually pass on
all the issues in the case.[19]
We
are left with the situation, then, where the trial court, believing that an
administrative agency might provide the best forum for resolution of the
dispute but not knowing whether the agency would assume jurisdiction in the
matter, directed the parties to take the case to the agency while expressly retaining
its own jurisdiction over the action and holding the court case open
"pending the administrative response." Meanwhile, the agency, apparently believing that the court would
thus hear the issues regardless of whether the agency assumed jurisdiction over
them, exercised its discretion by declining to do so. The commission's action--or inaction--left the plaintiffs in
limbo, and we decline to interpose rules of exhaustion or exclusivity to defeat
their claims.
The
exclusive jurisdiction rule is, as we noted above, one of "policy,
convenience and discretion." State
ex rel. First Nat'l Bank v. M & I Peoples Bank, 82 Wis.2d 529, 542,
263 N.W.2d 196, 202 (1978).
[It] is based on the strong public interest in creating
effective administrative agencies, in insuring finality of agency
determinations and certainty in legal relations; in establishing orderly
judicial processes; in preventing a multiplicity of suits; and in achieving
economy of judicial time. Balanced
against these considerations is a party's right to obtain a judicial forum and
a just, equitable decision on the merits.
Id. at 542-43, 263 N.W.2d at 202.
We
do not believe that a party's failure to pursue judicial review of the agency's
decision under ch. 227, Stats.,
should require dismissal of the prior declaratory judgment action that was
itself stayed to permit the party to follow the court's specific instructions
to determine whether the agency would accept jurisdiction in the matter. Not only would such a result close the
courtroom doors to the plaintiffs after the court expressly left the doors
open, but it would hinder rather than advance the policy considerations
underlying the exclusivity rule and the ends of justice generally.
We
therefore reverse the order of December 23, 1993, dismissing the plaintiffs'
complaint and remand to the circuit court to allow the action to proceed.[20]
By
the Court.—Order reversed and
cause remanded.
[1] Plaintiffs challenged six specific
appointments: (1) Department of Health and Social Services Secretary Gerald
Whitburn's appointment of Ann Haney as "Assistant Administrator for Public
Health Services"; (2) Whitburn's appointment of Stanley York as
"Assistant to the Secretary"; (3) Department of Transportation
Secretary Ronald R. Fiedler's appointment of William Jordahl as "Special
Assistant to the Secretary"; (4) Commissioner of Transportation Ervin
Conradt's appointment of Nicholas Trane II as "Agency Disposition
Manager"; (5) Division of Emergency Government Administrator Robert
H. Thompson's appointment of Janice Grunewald as "Program and Planning
Analyst"; and (6) Thompson's appointment of Jayne E. Meyer as
"Administrative Assistant."
[2] Defendants also argued that: (1) even if the
trial court had concurrent jurisdiction over the subject matter of the action,
it should defer to the "primary jurisdiction" of the commission;
(2) the plaintiffs lacked standing to bring a constitutional challenge to
the appointments; and (3) in any event, the complaint failed to state a
claim upon which relief could be granted as to certain defendants.
[3] The statute, which we discuss in more detail
below, provides generally that a taxpayer's right to sue to restrain payment of
salaries for persons appointed to state office in violation of the civil
services laws is not limited by the fact that the affected position is one that
is not subject to merit selection under the law.
[4] Section 227.41, Stats., authorizes administrative agencies, "on petition
by any interested person," to issue declaratory rulings "with respect
to the applicability to any person, property or state of facts of any rule or
statute enforced by it."
[5] The commission did dismiss the proceedings
against the Secretary of the Department of Administration, whose only apparent
connection with the appointments was budgetary in nature, and the Secretary of
the Department of Employment Relations, whose involvement in the matter was not
"readily apparent" to the trial court.
[6] Section 230.44(1), Stats., provides in pertinent part as follows:
[T]he following are actions appealable to the commission
... :
(a) [A] personnel
decision ... made by the administrator [of the division of merit recruitment
and selection within the department of employment relations] or by an
appointing authority under authority delegated by the administrator ....
Appeals
under § 230.44(1), Stats.,
may not be heard by the commission unless "filed within 30 days after the
effective date of the action, or within 30 days after the appellant is notified
of the action, whichever is later ...."
Section 230.44(3).
[7] As the trial court pointed out in its second
decision, the issue is not the commission's subject matter jurisdiction but its
competency to proceed under § 230.44, Stats.,
since the thirty-day deadline of the statute was not met. Lack of subject matter jurisdiction is the
absence of "power to treat a certain subject matter at all," while a
tribunal lacks competency to proceed with a matter where it "may treat the
subject generally but [where] there has been a failure to comply with the conditions
precedent necessary to acquire jurisdiction." Heideman v. American Family Ins. Group, 163 Wis.2d
847, 859-60, 473 N.W.2d 14, 19 (Ct. App. 1991). See also Brandt v. LIRC, 160 Wis.2d 353, 366-67,
466 N.W.2d 673, 678 (Ct. App. 1991), aff'd, 166 Wis.2d 623, 480 N.W.2d
494 (1992), where we said, "[s]ubject matter jurisdiction [refers to] the
power of a court to deal with the general issues involved in an action.... Competency to proceed is a narrower concept
which addresses the power of the ... courts to exercise their subject matter
jurisdiction."
[8] The commission also declined to assert
jurisdiction under § 227.42, Stats.,
which provides that "any person filing a written request with an agency
for hearing shall have the right to a hearing which shall be treated as a
contested case," concluding that the right to a hearing must be based on
an injury caused by the commission itself.
[9] Defendants renewed their argument that the
case was moot. The court rejected the
argument, concluding that, while it might be technically moot, the public
interest in the subject matter of the dispute was sufficient to warrant hearing
it. See Stahovic v.
Rajchel, 122 Wis.2d 370, 374, 363 N.W.2d 243, 245 (Ct. App. 1984). We agree.
"[T]he general rule that a moot appeal will be dismissed is not
adhered to unbendingly. If interests of
a public character are asserted under conditions that are likely to be
repeated, we may address the merits of an otherwise moot issue." Id. Like the trial court, we believe that, although the issues are
technically moot as to the parties involved, "the issue is one of
sufficient public character, interest and significance that it ought to be
considered." Id.
[10] State ex rel. First Nat'l Bank v. M
& I Peoples Bank, 82 Wis.2d 529, 542, 263 N.W.2d 196, 202 (1978).
[11] Stated another way, the statute ensures that
common-law taxpayer actions, when brought to enjoin the compensation of
improperly appointed public officials, are not limited to appointments made
under ch. 230, Stats., but apply
to noncivil service (nonmerit) appointments as well.
[12] No statutory authorization is necessary for a
"taxpayer's action." The
right of a taxpayer to sue to restrain the alleged improper expenditure of
public funds derives from the common law.
"Of the right of resident tax payers to invoke the interposition of
a court ... to prevent an illegal disposition of [public] moneys ... or the
illegal creation of a debt ... there is at this day no serious question. The right has been recognized by the state
courts in numerous cases ...."
Crampton v. Zabriskie, 101 U. S. 601, 609 (1880). In Milquet v. Van Straten, 186
Wis. 303, 306, 202 N.W. 670, 671 (1925), the Wisconsin Supreme Court, citing
cases dating back to the 1880's, stated: "[I]t must be regarded as settled
in this state that a taxpayer may maintain an action in his [or her] own behalf
and in behalf of other taxpayers to recover back into the public treasury funds
which have been illegally extracted therefrom." See also Hart v. Ament, 176 Wis.2d 694, 699,
500 N.W.2d 312, 314 (1993); Thompson v. Kenosha County, 64 Wis.2d
673, 680, 221 N.W.2d 845, 849 (1974).
[13] See Board of Regents v.
Wisconsin Personnel Comm'n, 103 Wis.2d 545, 309 N.W.2d 366 (Ct. App.
1981) (appeal by probationary employee from decision to discharge him from
job).
[14] See Basinas v. State,
104 Wis.2d 539, 312 N.W.2d 483 (1981) (employee appeal from reassignment to
position with lower maximum pay range).
[15] See Seep v. State Personnel
Comm'n, 140 Wis.2d 32, 409 N.W.2d 142 (Ct. App. 1987) (employee appeal
from decision refusing reinstatement in violation of agreement to do so).
[16] See Cozzens-Ellis v. Wisconsin
Personnel Comm'n, 155 Wis.2d 271, 455 N.W.2d 246 (Ct. App. 1990)
(employee appeal from denial of promotion).
[17] In this case, for example, six separate
appeals would have to be taken--all within thirty days of each individual
appointment. If the case had involved a
dozen, or twenty or thirty, appointments, an equal number of cases would have
to be instituted, even though each one raised a single legal issue on brief and
undisputed facts.
[18] We disagree with the trial court's remark
that the commission dismissed the case "solely [because of] plaintiffs'
failure to raise the issue within the prescribed time." Our reading of the commission's decision
indicates that, in addition to believing that it lacked competency to proceed
under the appeal provisions of § 230.44, Stats.,
it elected not to exercise its jurisdiction--which it had earlier determined it
possessed--under the declaratory ruling provisions of § 227.41, Stats.
[19] The commission stated: "The Circuit
Court's ... memorandum decision states that the Court will resume jurisdiction
over the companion court case in the event that this Commission denies
jurisdiction. Therefore, apparently the
issues raised in this proceeding will be heard before that Court."
[20] We also reject defendants' argument that
principles of "claim preclusion" (res judicata) prohibit plaintiffs
from returning to circuit court for adjudication of their declaratory judgment
action. The rule is that "`a final
judgment is conclusive in all subsequent actions between the same parties [or
their privies] as to all matters which were litigated or which might have been
litigated in the former proceedings.'"
Northern States Power Co. v. Bugher, 189 Wis.2d 541, 550,
525 N.W.2d 723, 727 (1995) (quoted source omitted). Claim preclusion bars a subsequent action by the plaintiff on the
same claim or cause of action where there has been a prior valid and
"final judgment on the merits in a court of competent
jurisdiction." Id.
at 551, 525 N.W.2d at 728 (emphasis added); see DePratt v. West
Bend Mut. Ins. Co., 113 Wis.2d 306, 310, 334 N.W.2d 883, 885
(1983).
To the extent the commission's
decision may be said to be "on the merits," it dismissed plaintiffs'
request because of lack of competency to proceed. We have held that this was error. Beyond that, the commission elected not to exercise its
jurisdiction under §§ 227.41 and 227.42, Stats.,
on the basis that the trial court would be considering such issues in the
declaratory judgment action.
Additionally, we do not believe that
claim preclusion principles should bar plaintiffs' claim where they could
reasonably assume, on the basis of the trial court's own ruling, that the court
would consider the issues they were raising should their overtures to the
agency be rebuffed. See Worthington
v. Farmers Ins. Exch., 77 Wis.2d 508, 519, 253 N.W.2d 76, 82 (1977)
(claim preclusion is an equitable remedy that should not be applied where its
application would bring about an inequitable result).
Finally,
we reject defendants' argument that plaintiffs are "judicially
estopped" from continuing their action in circuit court because they took
an inconsistent position when they argued to the commission that it had
jurisdiction to hear their claims. The
rule of judicial estoppel is "`intended to protect against a litigant
playing "fast and loose with the courts" by asserting inconsistent
positions.'" State v.
Fleming, 181 Wis.2d 546, 557-58, 510 N.W.2d 837, 841 (Ct. App. 1993)
(quoting Yanez v. United States, 989 F.2d 323, 326 (9th Cir.
1993)) (internal quoted source omitted).
Not only do defendants live in a glass house with respect to this issue,
having themselves argued vociferously both for and against the exercise of the
commission's jurisdiction at various times during the court and agency
proceedings, but it must be remembered that the trial court ordered the
plaintiffs to take their claim to the commission. They simply followed suit.
The rule of judicial estoppel "`looks toward cold manipulation [of
the judicial process],'" id. at 558, 510 N.W.2d at 841
(quoted sources omitted), and there is no evidence that plaintiffs have so
acted in this case.