This appeal presents three related issues for review:
1) Does sec. 893.80(1), Stats.,
3) If the notice of claim statute does apply in all actions and if the state must comply with the notice of claim statute, did the state substantially comply with the statute in this case?
We hold that the notice of claim statute, sec. 893.80(1), Stats., applies in all actions, not just in tort actions. We also hold that the state must comply with the provisions of the notice of claim statute. However, in this case, the state did substantially comply with the statute. Therefore, we find that the circuit court erred
The relevant facts in this case are undisputed. On June 10, 1987, the Department of Natural Resources (DNR) issued a "notice of violation," advising the city of Waukesha (the city or Waukesha) that its municipal drinking water supply contained more than twice the level of radium permitted under Wis. Admin. Code sec. NR 109.50(1).
The city did not comply with the terms of the agreement immediately. Rather, it attempted, unsuccessfully, to renegotiate the compliance agreement. The city claimed that the radium level in its water supply would comply with the new standard for radium contemplated by the Environmental Protection Agency (EPA).
When it appeared that the city was violating the terms of the compliance agreement, the DNR notified the mayor of Waukesha by letter dated April 25, 1990, that it was referring the matter to the Wisconsin Department of Justice (DOJ) for further action. On January 11, 1991, the DOJ sent a letter to the Waukesha city attorneys proposing a settlement agreement. The letter contained a new compliance schedule and proposed forfeitures, including $500 per day in liquidated damages for each day that the city violated the new agreement and $20,000 for the city's violations of the radium standard over the past five years. The DOJ warned the city that it would bring a lawsuit if the two parties could not work out a settlement.
Between January 29, 1991, and February 19, 1991, Waukesha city attorney Harold H. Fuhrman (Fuhrman) sent three letters to the DOJ. In the first letter, Fuhrman indicated that he believed that compliance with the DNR standard for radium "is in the area of legal impossibility of performance" without" massive state financial aid ...." City engineers estimated that the cost of bringing the water supply into compliance would be $67,345,000. Fuhrman next mentioned that the city's current water supply would be in compliance with the new radium standard contemplated by the EPA. He also stated that the city would only be willing to adopt a "construction schedule for the blending or treatment of Waukesha water [if] either the EPA or the DNR supplies the Waukesha Water Utility with scientific
In the second letter, Fuhrman stated that the Water Commission of the city of Waukesha requested "[t]hat the State of Wisconsin support the staff recommendation of the EPA ... and ... [e]xercise forbearance in regard to any legal action... until after the EPA publishes its proposed new [standard for radium]." Finally, in the third letter, Fuhrman indicated that after talking to the mayor of Waukesha, he concluded that it would be legally impossible for Waukesha to comply with the DNR radium standard due to the constitutional debt limit of the city.
The DOJ wrote back on February 27, 1991, advising the city "that it is highly unlikely that DNR would support changes to the current [radium] standard." The DOJ also mentioned that it would not file a lawsuit until at least "early April." Fuhrman responded to the DOJ in a letter dated March 26, 1991, asking that the DOJ postpone any legal action until after the DNR finished its pending rule-making proceeding. In the alternative, Fuhrman requested that the DOJ postpone legal action until after city attorney Curt Meitz returned from his trip to the USSR on May 1, 1991.
On April 12, 1991, the DNR filed a complaint against the city of Waukesha Water Utility (the utility) seeking: 1) an injunction requiring the city to bring its water supply system into compliance with Wis. Admin. Code sec. NR 109.50(1); 2) forfeitures pursuant to sec. 144.99, Stats.,
Following a hearing on this motion, the circuit court for Waukesha county, the Honorable Harry G. Snyder, issued a decision and order on November 26, 1991, granting the city's motion to dismiss for failure of the state to comply with sec. 893.80(1), Stats. The court held that: 1) the notice requirements in sec. 893.80(1) do apply to environmental enforcement actions; 2) sec. 893.80(5) does not exempt the state from these notice requirements; and 3) the state did not substantially comply with sec. 893.80(1).
The state moved for reconsideration of this order.
The state appealed from the judgment and orders of the circuit court. The court of appeals certified the appeal for review by this court pursuant to sec. (Rule) 809.61, Stats. This court accepted the certification. We now reverse the orders and judgment of the circuit court.
The state initiated this lawsuit seeking injunctive relief and statutorily imposed forfeitures and penalties, but no tort damages. The circuit court dismissed the state's complaint because the state failed to present "[a] claim containing the address of the claimant and an itemized statement of the relief sought" to the appropriate representative of the city and failed to wait 120 days after the presentation before filing the complaint, as required by sec. 893.80(1), Stats., the notice of claim statute. If the notice of claim statute applies only to tort actions, then the circuit court erred in dismissing the complaint. Hence, we will first determine whether sec. 893.80(1) applies to this action to enforce an environmental regulation.
The application of a statute to a given set of facts is a question of law. Tahtinen v. MSI Ins. Co., 122 Wis.2d 158, 166, 361 N.W.2d 673 (1985). We review questions of law de novo. Our sole purpose in reviewing a statute is to determine the intent of the legislature. If the meaning of the statute is clear and unambiguous on its face, we need look no further to determine the legislature's intent. Id.
Section 331.43(1), Stats. (1963), a predecessor to sec. 893.80(1), explicitly limited application of the notice of claim requirements to tort actions brought against a governmental unit:
(Emphasis added.) Section 893.80(1) has no such limitation:
The plain language of the current statute clearly does not limit the application of the notice of claim requirements to tort claims.
In Nicolet, 177 Wis. 2d at 85, the court of appeals characterized this court's conclusion in Figgs, 121 Wis. 2d at 52, 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. We therefore overrule Kaiser, Harkness and Nicolet to the extent that those opinions hold that sec. 893.80(1) applies only to tort claims and claims for money damages.
The state next argues that sec. 893.80(5), Stats.,
The state asks this court to interpret this language to mean that when a claim is based on another statute—sec. 144.99, for example, in this case—that statute controls and all requirements of sec. 893.80 are inapplicable.
This interpretation ignores the plain meaning of the statute. Clearly, sec. 893.80(5), Stats., only directs that when a claim is based on another statute, the damage limitations of sec. 893.80(3)
Having held that the notice provisions of sec. 893.80(1), Stats., do apply to this cause of action, we now determine whether the state is bound by these requirements. This inquiry also presents the court with a question of statutory interpretation which we review de novo. See Tahtinen, 122 Wis. 2d at 166. The plain language of the statute certainly does not exempt the state from the notice requirements. However, when deciding whether the provisions of a statute apply to
3 Sutherland, Statutes and Statutory Construction, sec. 62.01 at 205 (5th ed. 1992); see also State v. Milwaukee, 145 Wis. 131, 135, 129 N.W. 1101 (1911); State ex rel. Dept. of Pub. Instruction v. ILHR, 68 Wis.2d 677, 681, 229 N.W.2d 591 (1975); Wis. Vet. Home v. Div. Nurs. Forfeit. Appeals, 104 Wis.2d 106, 110, 310 N.W.2d 646 (Ct. App. 1981). This court applied this rule of construction to exempt the state from an early notice of claim statute. See Milwaukee, 145 Wis. at 135-36. Based on the above rule, the state argues that because sec. 893.80(1) does not explicitly refer to the state, this court should hold that the state is not bound by the statute's notice requirements.
More recently, however, Wisconsin courts have followed a general trend toward relaxing the application of this rule of exclusion. In Town of Janesville v. Rock County, 153 Wis.2d 538, 544, 451 N.W.2d 436 (Ct. App. 1989), the court of appeals held that the town of Janesvine could enforce a statute requiring Rock county to pay fees to the town for fire protection services. The court adopted the following reasoning:
Id. quoting 3 Sands, Statutes and Statutory Construction, sec. 62.02 at 123-24 (4th ed. 1986). We now apply this analysis to the facts presented here.
In this case, we find that the objective of sec. 893.80(1), Stats., would be frustrated if the state did not have to comply with the notice requirements. "[T]he purpose of a notice-of-claim statute is to `afford the municipality an opportunity to compromise and settle [the] claim without litigation.' "Figgs, 121 Wis. 2d at 53, quoting Gutter v. Seamandel, 103 Wis.2d 1, 11, 308 N.W.2d 403 (1981). If the state did not have to comply with the notice requirements, a municipality would lose this opportunity to "compromise and settle [the] claim without litigation" in actions brought by the state. The legislature, by enacting notice of claim statutes, has evinced an intent to provide municipalities with an opportunity to avoid costly, time-consuming litigation. Were we to allow the state to ignore this legislative directive, we would frustrate the intent of the legislature and subject municipalities to otherwise avoidable litigation.
The state claims that sec. 893.80(1), Stats., should not be construed to include the state in this case because the DNR's enforcement process satisfies the purpose of the notice of claim statute. The state did substantially comply with the notice requirements in this particular enforcement action. See infra. That is not to say, however, that the DNR's enforcement procedures always comply with the statutory requirements
In addition, we find that requiring the state to comply with sec. 893.80(1), Stats., will not vitally interfere with the processes of state government. Certainly, when the state plans to bring an action against a municipality in the circuit court, the state must file a summons and complaint as it did in this case. Section 893.80(1), merely adds one more step to the process. The state must also present the municipality with "[a] claim containing the address of the claimant and an itemized statement of the relief sought" and then give the municipality some time to settle the matter prior to litigation. This additional burden is not likely to bring the wheels of state government to a halt. Rather, this procedure should help the state resolve disputes with municipalities without having to resort to litigation. Because we find that: 1) the objective of the notice requirements cannot be accomplished without including the state; and 2) requiring the state to comply with the procedures will not vitally interfere with the processes of government, we "relax the stringency of the rule" excluding the state from the mandates of general statutes and hold that the state must comply with sec. 893.80(1).
Finally, we must decide whether the state did in fact comply with the procedures required by sec. 893.80(1), Stats. Section 893.80(1), has two requirements. First, a claimant must present the municipality
If a claimant does not literally comply with sec. 893.80(1)(a), the claim does not necessarily fail:
Section 893.80(1)(a). In this case, the city never alleged that the state failed to comply with sec. 893.80(1)(a). Clearly, after four years of negotiations, the city had actual knowledge of the claim and was not prejudiced by the state's failure to give the requisite notice.
Thus, we need only decide whether the state complied with sec. 893.80(1)(b), Stats. The underlying facts are undisputed. Hence, this inquiry presents us with a question of law concerning the interpretation of the notice of claim requirements of sec. 893.80(1)(b). See Sambs v. Nowak, 47 Wis.2d 158, 164, 177 N.W.2d 144 (1970). We review questions of law de novo. Tahtinen, 122 Wis. 2d at 166.
To satisfy the notice of claim requirements of sec. 893.80(1)(b), Stats., a claim must: 1) identify the claimant's address; 2) contain an itemized statement of the relief sought; 3) be submitted to the city clerk; and 4) be
The state contends that the letter sent by the DOJ to the Waukesha city attorneys on January 11, 1991 satisfies the requirements of sec. 893.80(1)(b). The purpose of the letter, as indicated by its second sentence, mirrors the purpose of a notice of claim: "The [DNR] is interested, if possible, in resolving the water supply compliance issues prior to initiating a lawsuit." While this statement may weigh in the state's favor, it certainly is not sufficient by itself to satisfy any one of the requirements of the notice of claim statute.
The statute first requires that a notice of claim contain the address of the claimant. In this case, the letter contains the address of the claimant's attorney, the DOJ. The attorney's address is considered the equivalent of the claimant's address for the purpose of the notice of claim statute. See Novak v. Delavan, 31 Wis.2d 200, 211, 143 N.W.2d 6 (1966); Gutter, 103 Wis.
Second, the claim must contain an itemized statement of the relief sought. Here, the letter listed the relief sought as follows: "DNR proposes a $500 per day liquidated penalty for each day of violation of any term of the final judgment.... On forfeitures, DNR proposes $20,000... for the past five years of radium violations."
This court has consistently held that a notice of claim must state a specific dollar amount. See e.g. Sambs, 47 Wis. 2d at 165. The $20,000 forfeiture satisfies this condition. And, while the penalty provision is listed as a daily fee, rather than as a specific dollar amount, this is as specific as possible given the state's intention to penalize the city if the city fails in the future to comply with the judgment agreed to by the two parties.
Earlier in the letter, the DOJ proposed a compliance schedule requiring the city to attain compliance with the DNR regulation by November 1, 1994. While the letter does not use the word "injunction," it clearly defines the equitable relief sought. In general, this list does not strictly comply with sec. 893.80(1)(b), Stats. It does, however, provide the city with enough information to decide whether to settle the claim prior to litigation. See Figgs, 121 Wis. 2d at 54. In order to preserve this otherwise bona fide claim, we find that this statement of the relief sought satisfies this second statutory requirement.
Third, sec. 893.80(1)(b), Stats., requires that the notice of claim be "presented to the appropriate clerk or person who performs the duties of a clerk or secretary for the defendant.... "In this case, the DOJ presented the claim to the city attorneys. Again, the state did not
Finally, a claimant must wait until the municipality disallows the claim before it may commence the action in the circuit court. Section 893.80(1)(b), Stats. Failure of the municipality to disallow the claim within 120 days is considered a disallowance. Id. In this case, the state did not wait 120 days after sending the letter dated January 11, 1991, before filing the complaint. Therefore, if the city did not disallow the claim, then the state failed to comply with the statute.
The state claims that a series of letters sent by Fuhrman to the DOJ substantially disallowed the claim. We agree. While these letters do not expressly reject the state's claim, collectively they make it clear that the city was not interested in resolving the problems prior to litigation. In the first letter, Fuhrman stated that it likely would be legally impossible for the city to comply with the state's radium standard. He further stated that the city would only be willing to adopt a construction schedule for improving the city's
After receiving these two letters, along with two other letters in which Fuhrman asked the state to postpone legal action pending the outcome of EPA and DNR rulemaking proceedings, it was reasonable for the state to assume that the city had disallowed the claim. The state could have reached only one conclusion based on these letters and the city's previous refusal to follow the original compliance schedule agreed to in 1987—Waukesha did not intend to negotiate a settlement regarding its violation of Wis. Admin. Code sec. NR 109.50(1).
The city claims that Fuhrman could not have disallowed the state's claim because the city attorneys did not have the authority to disallow the claim. While this may be true, there is no reason to believe that the state knew this. When the state received the letters from Fuhrman, it assumed that he was speaking on behalf of the city. In fact, the letters clearly indicate that Fuhrman's decisions were based on his discussions with the mayor and representatives of the utility. We therefore find that the state satisfied this final requirement of the notice of claim statute by waiting until the city disallowed its claim before initiating the action in the circuit court. Hence, we hold that the state substantially complied with all four requirements of sec. 893.80(1)(b), Stats.
By the Court.—The judgment and orders of the Waukesha county circuit court are reversed.
Wisconsin Administrative Code ch. NR 109 was renumbered as Wis. Admin. Code ch. NR 809 in July, 1993.