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Immunity Analysis

By: dmc-admin//June 25, 2003//

Immunity Analysis

By: dmc-admin//June 25, 2003//

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Justice Bablitch asserted in his concurrence, "A doctrine of governmental immunity that has caused such injustice and inequity, in this case and others, cannot, and I predict, will not, stand much longer."

It is likely that the court will soon directly consider the issue of whether to abrogate the ministerial/discretionary distinction in municipal immunity cases.

There may be other changes coming, as well, should the court decide to start over from square one (or at least square two, with the decision in Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962), and the statute itself, sec. 893.80, as the only immutable bedrocks).

For instance, in another recent governmental immunity case, Willow Creek Ranch, LLC, v. Town of Shelby, 2000 WI 56, 235 Wis.2d 409, 611 N.W.2d 693, Justice Prosser wrote a dissent, joined by Justices Bablitch and Crooks, asserting, "as the first step to restore coherence to the law, [Johnson v. City of Edgerton, 207 Wis.2d 343, 558 N.W.2d 653 (Ct.App.1996)] should be overruled, and this court should assert unequivocally that Wis. Stat. sec. 893.80(4) applies only to tort suits for money damages. Willow Creek Ranch, 235 Wis.2d at 465 (Prosser, J., dissenting).

In Johnson v. City of Edgerton, the court of appeals held that governmental immunity can apply to actions seeking only injunctive relief, as well as tort claims.

Should the court consider that issue, as well as the municipal/discretionary distinction, it may come to the conclusion that the dissent is correct, and sec. 893.80(4) only applies to tort actions.

Prior to Holytz, it was not even arguable that municipalities were immune from suit seeking injunctive relief, even though municipalities had total immunity from suit in tort.

Regardless of the express words of the statute, no argument can be made that, in abrogating municipal tort immunity in Holytz, the Supreme Court, and the legislature, in subsequently codifying the Holytz decision, intended to create immunity from injunctive actions.

Furthermore, the same body of legislative history that may lead the court to the conclusion that sec. 893.80(4) only applies to tort actions may also cause the court to reconsider whether the notice of claim statute, sec. 893.80(1), only applies to tort actions as well.

That was the law from the time Holytz was codified until the Supreme Court’s decision in DNR v. Waukesha, 184 Wis.2d 178, 515 N.W.2d 888 (1994). DNR v. Waukesha, however, has been repeatedly limited by the Supreme Court and the court of appeals, because it has proved unworkable in most non-tort actions.

If the court really wants to clear decades worth of skeletons from the governmental immunity closet, they may even stumble on yet another case in which the court got mixed up with the discretionary duties of municipal actors — Cobb v. Milwaukee County, 60 Wis.2d 99, 208 N.W.2d 848 (1973).

In Cobb, citizens of the City of Milwaukee sued to enforce land use restrictions on property along Lake Michigan, for the purpose of preventing the City from transferring the property to the County of Milwaukee, which intended to use it to build an expressway — a use not permitted by restrictions set when the City acquired the property.

Sua sponte, the Supreme Court asked the parties to address the issue of the taxpayers’ standing. The parties apparently had little interest in the issue; rather than dig through decades of case law establishing that the rights of taxpayers to bring such suits are extremely broad, they did little more than reference the standard set forth in McQuillin’s Municipal Corporations.

The standard stated there, and then adopted by the Supreme Court in Cobb, states, "The right of taxpayers to sue upon behalf of a city is generally subject to the following conditions and exceptions: (1) the municipality itself must have a clear right and power to sue; (2) a taxpayer cannot sue third persons in behalf of the municipality unless the bringing of such action is a duty devolving upon the municipal authorities, as to which they have no discretion and which they have refused to perform; (3) either a demand must have been made that suit be brought by the public officers of the municipality, or it must be alleged and shown that such demand would be unavailing; and (4) the action does not lie where it would be grossly inequitable to enforce the claim, nor where the basis thereof is a claim of the taxpayer’s rather than that of the municipality." 18 McQuillin, Municipal Corporations (3rd Edition Revised, 1963), sec. 52.17, at pages 33-36.

Conditions One, Three, and Four all had firm support in Wisconsin’s case law prior to Cobb. Number Two, however, did not. However, none of the parties in the case contested whether there was a duty on the City’s part to bring suit, but assumed that there was, so the error went unnoticed, and Condition Two became part of the case law, without any consideration of whether it should be.

This is particularly unfortunate because, not only was there no pr
ecedent for Condition Two in Wisconsin case law when Cobb was decided, there isn’t even any support for Condition Two to be in McQuillin’s treatise in the first place; the cases cited in McQuillin are almost all inapposite.

In Mississippi v. Road Supply v. Hester, 188 So. 281 (1939), the taxpayer failed to meet Conditions Three and Four, not Condition Two. In Corpus Christi v. Flato, 83 S.W.2d 433 (1935), the taxpayer failed Condition Three.

Links

Wisconsin Supreme Court

Related Article

Days may be numbered
for governmental immunity

In the Wisconsin case cited in McQuillin for support, Grob v. Nelson, 8 Wis.2d 8, 98 N.W.2d 457 (1959), the taxpayer failed Condition One, rather than Two. The municipality involved had already settled a case against its former treasurer, who had embezzled from it, so the Supreme Court held that the municipality (and thus, the taxpayer) no longer had any right to bring suit.

In two Ohio cases cited in McQuillin, Kasch v. People’s Hospital Co., 5 N.E.2d 210 (1936) and Agins v. University Heights, 108 N.E.2d 210 (1952), the decisions turned on an irrelevant Ohio distinction between law and equity.

Only in two of the seven cases McQuillin cites, Reiss v. Gordon, 117 N.E.2d 709 (1951), and Dunn v. Long Beach Land & Water Co., 46 P. 607 (1896), can any support for Condition Two’s inclusion in the treatise be found. Even in those cases, however, the support is weak.

The court in Dunn could have rested its decision on either Condition One or Four, and Reiss was based on a unique City of Columbus ordinance, rather than common law.

As can be seen, if the Wisconsin Supreme Court starts re-examining the past few decades of its municipal law decisions, it may find a difficult stopping point; if the distinction between ministerial and discretionary duties of municipalities is abrogated, it will undermine a great deal of case law.

— David Ziemer

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David Ziemer can be reached by email.

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