COURT OF APPEALS DECISION DATED AND RELEASED November 7, 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. 95-0759
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
JAMES N. ELLIOTT and
MILWAUKEE BUILDING AND
CONSTRUCTION TRADES
COUNCIL,
Plaintiffs-Appellants,
v.
MICHAEL L. MORGAN
and CITY OF MILWAUKEE,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Milwaukee County:
GEORGE A. BURNS, JR., Judge. Affirmed.
Before Sullivan, Fine
and Schudson, JJ.
FINE, J. This is an action brought by James N.
Elliott, president of the Milwaukee Building and Construction Trades Council,
and by the Trades Council seeking a declaration that the Riverwalk project in
the City of Milwaukee has to comply with wage-rate laws set out in § 66.293, Stats., and the Milwaukee city
ordinances. The trial court granted
summary judgment to the defendants, ruling that the wage-rate laws did not
encompass the Riverwalk project. We affirm
because the plaintiffs have failed to join indispensable parties. Accordingly, we do not discuss the other
issues in the case, which can only be addressed once all those whose interests
will be affected are joined in this action.
The facts material to
our decision are not disputed. The
Riverwalk project is being developed by two entities: Business Improvement District No. 15 and Milwaukee Riverwalk
District, Inc. Creation of Business
Improvement Districts is authorized by § 66.608, Stats. A Business
Improvement District is governed by a board, appointed by the municipality's
“chief executive officer”—a mayor in the case of cities—and confirmed by the
municipality's legislative body.
Section 66.608(3)(a), Stats. “The board shall have at least 5
members. A majority of board members
shall own or occupy real property in the business improvement district.” Ibid. The Business Improvement District board is
authorized to “have all powers necessary or convenient to implement the
[district's] operating plan, including the power to contract,” if those powers
are “specified in the operating plan as adopted, or amended and approved”
pursuant to § 66.608. Section
66.608(3)(d), Stats.[1] The agreement for the Riverwalk project
vests the board of Business Improvement District No. 15 with authority to
obtain property in connection with the project and to construct, as well as
“[c]ontrol or own, operate and maintain or cause to be operated and
maintained,” the project segments that are not designated for control by the
city.[2] Creation of the Business Improvement
District was approved by the Milwaukee Common Council in March of 1994. Business Improvement District No. 15 is to
be funded by $8,537,000 in grant funds from the City of Milwaukee, and by
$1,945,000 from special assessments on private property within the district.
The Milwaukee Riverwalk
District is a Wisconsin not-for-profit corporation, and is to be funded by
$769,000 in grant funds from the City of Milwaukee, and by $100,000 from
Midwest Express. The Milwaukee
Riverwalk District agreed with the City of Milwaukee to “further[] Riverwalk
construction and development along various segments of the Milwaukee River line
within the boundaries of” Business Improvement District No. 15.
In its answer to the
plaintiffs' complaint, the defendants raised as an affirmative defense that the
plaintiffs “have failed to join necessary and indispensable parties.” We agree.
Rule 803.03(1), Stats., provides:
Joinder of persons needed for just and
complete adjudication. (1) Persons
to be joined if feasible. A
person who is subject to service of process shall be joined as a party in the
action if:
(a)
In the person's absence complete relief cannot be accorded among those already
parties; or
(b)
The person claims an interest relating to the subject of the action and is so
situated that the disposition of the action in the person's absence may:
1. As
a practical matter impair or impede the person's ability to protect that
interest; or
2. Leave any of the persons already
parties subject to a substantial risk of incurring double, multiple or
otherwise inconsistent obligations by reason of his or her claimed interest.
Application of the
wage-rate laws to Business Improvement District No. 15 and to Milwaukee
Riverwalk District would affect their ability to fulfill the objectives of
their charter—most notably by increasing the costs of their operations. Simply
put, the interests of both Business Improvement District No. 15 and Milwaukee
Riverwalk District are at risk in this case; they are entitled to an
opportunity to protect those interests.
They are indispensable parties to this action.[3]
The plaintiffs have not argued that joinder of Business Improvement District
No. 15 and Milwaukee Riverwalk District is not “feasible.” Accordingly, we affirm the judgment
dismissing this action, but direct that the dismissal be without
prejudice. See Heifetz v.
Johnson, 61 Wis.2d 111, 119, 211 N.W.2d 834, 838 (1973) (failure to
join an indispensable party, if feasible, requires dismissal of the action
“`since the adjudication cannot proceed to judgment without him,'” although
defect not jurisdictional) (citation omitted).
By the Court.—Judgment
affirmed.
Publication in the
official reports is not recommended.
[1] If the operating plan does not grant these powers to the Business Improvement District board, they devolve on the municipality. Section 66.608(3)(d), Stats.
[2] The project segments that are to be owned by the city are governed by the wage-rate laws that the plaintiffs seek to have applied to the projects segments under the board's aegis, and are not at issue here.
[3] The plaintiffs argue that Business Improvement District No. 15 is not an indispensable party because it is “functionally inseparable from the City of Milwaukee itself.” This, of course, begs the question because the interrelationship between the city and Business Improvement District No. 15 is one of the issues underlying the plaintiffs' contention that the wage-rate laws apply. Moreover, a similar argument was made and rejected in the context of paternity actions in State v. Jody A.E., 171 Wis.2d 327, 491 N.W.2d 136 (Ct. App. 1992), where we held that a mother was an indispensable party to a paternity action prosecuted by the state despite the state's putative representation of the mother's interests. Id., 171 Wis.2d at 341–342, 491 N.W.2d at 141. Failure to join Business Improvement District No. 15 and Milwaukee Riverwalk District will either bind them to a judicial result without an opportunity for them to be heard, or, if they are not so bound, will invite further litigation. The plaintiffs do not contend that the Milwaukee Riverwalk District is not an indispensable party.