Thomas F. Benson v. City of Madison

2017 WI 65

SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP2366
COMPLETE TITLE:
Thomas F. Benson, Mark Rechlicz, Mark Rechlicz
Enterprises, Inc., Robert J. Muranyi, RJM Pro
Golf Incorporation and William J. Scheer,
Plaintiffs-Appellants-Petitioners,
v.
City of Madison,
Defendant-Respondent.

REVIEW OF A DECISION OF THE COURT OF APPEALS
371 Wis. 2d 760, 886 N.W.2d 593
(2016 – Unpublished)

OPINION FILED: June 22, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 19, 2017

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Richard G. Niess

JUSTICES:
CONCURRED: KELLY, J. concurs
DISSENTED: ABRAHAMSON, J. dissents, joined by A.W. BRADLEY
J.
NOT PARTICIPATING:

ATTORNEYS:
For the plaintiff-appellant-petitioners, there were briefs
by Kevin J. Palmersheim, Cathleen A. Dettmann and Haley
Palmersheim, SC Middleton and oral argument by Kevin J.
Palmersheim.

For the defendant-respondent, there was a brief by
Catherine M. Rottier and Boardman & Clark, LLP, Madison, with
whom on the brief was Michael P. May and Doran E. Viste, City of
Madison Attorney’s Office. There was an oral argument by
Catherine M. Rottier and Paul Norman.
 2017 WI 65
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP2366
(L.C. No. 2014CV180)

STATE OF WISCONSIN : IN SUPREME COURT

Thomas F. Benson, Mark Rechlicz, Mark Rechlicz
Enterprises, Inc., Robert J. Muranyi, RJM Pro
Golf Incorporation and William J. Scheer, FILED
Plaintiffs-Appellants-Petitioners,
JUN 22, 2017
v.
Diane M. Fremgen
Clerk of Supreme Court
City of Madison,

Defendant-Respondent.

REVIEW of a decision of the Court of Appeals. Reversed and

cause remanded.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an

unpublished decision of the court of appeals, Benson v. City of

Madison, No. 2015AP2366, unpublished slip op. (Wis. Ct. App.

Aug. 25, 2016), which affirmed the Dane County circuit court's1

judgment dismissing a lawsuit filed by the petitioners against

the City of Madison ("the City") pursuant to the Wisconsin Fair

Dealership Law ("the WFDL"), a statute that governs, among other

things, the termination or nonrenewal of specified types of
1
The Honorable Richard G. Niess presided.
 No. 2015AP2366

business relationships. See generally Wis. Stat. ch. 135

("Dealership Practices") (2013-14).2

¶2 The City owns four public golf courses: Odana, Yahara,

Monona, and Glenway. For years, the City entered into

"operating agreements" ("Agreements") with the petitioners, four

"golf professionals" ("Golf Pros"), to oversee the clubhouse

operations at these courses.3 That is, while the City maintained

the physical golf courses, the Golf Pros performed varied tasks

such as collecting greens fees, hiring and managing attendants,

supervising golfing, operating the clubhouse and pro shop,

selling concessions, and giving lessons.4

¶3 In 2012 the City informed the Golf Pros that it would

not be renewing the Agreements. The Golf Pros subsequently

filed a lawsuit against the City, both alleging that the City

had failed to comply with the WFDL in ending the City's

relationships with them and seeking damages. The circuit court

below ultimately dismissed the lawsuit on summary judgment,

concluding that the relationships between the Golf Pros and the

2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
3
"Golf professional" is an appellation recognized by the
Professional Golfers' Association.
4
Technically speaking, one of the four Agreements at issue
in this case was entered into by the City and a corporation
owned by one of the Golf Pros. For simplicity, this opinion
will refer to this corporation by its sole shareholder, the Golf
Pro. We also note that a second corporation owned by another of
the Golf Pros is a petitioner on this appeal, but we will not
reference that entity further.

2
 No. 2015AP2366

City did not constitute "dealerships" protected by the WFDL.

See Wis. Stat. § 135.02(3). The Golf Pros appealed, and the

court of appeals affirmed. Benson, unpublished slip op., ¶2.

¶4 On this appeal, we are asked to resolve two principal

questions: first, whether the WFDL applies to the City at all;

and second, whether the relationships between the Golf Pros and

the City are "dealerships" under the WFDL. Additionally,

assuming we answer both questions in the affirmative, the City

contends that the Golf Pros' lawsuit is time-barred and should

be dismissed on grounds of governmental immunity.

¶5 We conclude that the WFDL applies to the City; that

the relationships between the Golf Pros and the City are

"dealerships" under the WFDL; that the Golf Pros' lawsuit is not

time-barred; and that the City is not immune from the lawsuit.

Consequently, we reverse the decision of the court of appeals

and remand for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND

¶6 Although the City's relationships with the Golf Pros
span back a number of years, the most recent version of the

Agreements governed a period running from January 1, 2008, to

December 31, 2012.5 Because the nature of the relationships

between the City and the Golf Pros is central to this case, we

first summarize the duties of the City and of the Golf Pros, as

5
The four Golf Pros began their respective relationships
with the City in 1977, 1981, 1985, and 1999. According to the
parties, the Agreements "were generally for five-year terms."

3
 No. 2015AP2366

well as overall financial arrangements, as set forth in these

Agreements.

¶7 Each Golf Pro entered into a separate Agreement with

the City, with each of the four Golf Pros managing clubhouse

operations at one of the City's four courses. The Agreements

begin by noting, inter alia, that the City "is engaged in the

operation and maintenance of [the golf course] and desires to

engage a competent and qualified golf professional to operate,

manage, and provide certain services at [the golf course]"; that

"the Golf Pro desires to procure from the City the right to

operate and provide the services"; and that "the public interest

and welfare will be served . . . by the granting of an agreement

to a reputable party who will provide certain services to the

public patronizing the golf course." The Agreements then grant

to each Golf Pro "the exclusive privilege and obligation to

operate" one of the four golf courses.

¶8 Pursuant to the Agreements, each Golf Pro was hired to

perform the following tasks, among others (some of which
overlap):

 "[s]upervise and operate the [golf course] in a clean,

efficient, and creditable manner," "manag[e] the speed

of play," "efficiently start[] play on the first tee

so as to maximize play and revenue to the City," and

"provide a ranger/ambassador when heavy play so

requires";

 "[e]mploy attendants to sell and collect green fees,
resident and non-resident annual passports and other
4
 No. 2015AP2366

established player promotional devices, renewals, and

take and process reservations," and "collect for the

City all green fees, locker fees, player promotional

pass fees, and tournament fees";

 "operate concession rights at the pro shop, clubhouse,

and golf course," "sell food and beverages" during

specified periods, "[o]btain the necessary licenses to

operate and maintain on the premises a concession

operation for the sale of beverages, confections, and

food," and "sell golf clothing and golf equipment";

 "[p]rovide a sufficient number of motorized golf carts

to meet the needs of the public" and "rent and operate

golf carts and equipment"; and

 "teach and give golf lessons for compensation" as well

as "conduct" a specified number of "free clinics each

season."

¶9 Significantly, the Golf Pros were "responsible for the

purchase of all supplies and equipment used in the pro shop,
golf range, motorized cart concessions, and food and beverage

concessions." Each Golf Pro was entitled to "hire assistants to

assist in the operation" of the golf course, "concessions and

collecting money due the City under" the Agreement. But the

Golf Pros were "responsible for the hiring and supervision of

all employees necessary for the efficient operation of the

clubhouse and the pro shop and further, the hiring, training,

scheduling and supervision of course rangers and starters." The
Golf Pros were also "responsible for the salaries, benefits, and
5
 No. 2015AP2366

premiums for Worker's Compensation and Social Security, all

income tax deduction and any other tax or payroll deductions

required by law" for these employees. The Golf Pros were

required to maintain a number of different types of insurance.

¶10 The Agreements did not oblige the Golf Pros to

maintain the physical courses; this was performed by the City

through its own employees. The City also owned the land and

buildings and paid relevant utilities.6

¶11 The City paid each Golf Pro a "base contract payment"

specified in the Agreements. The Golf Pros also received:

All income from concessions, sale of merchandise at
the pro shop, golf instruction, pull cart . . . and
golf club rental, except for a return each week to the
City of Madison fifteen (15%) percent of the gross
receipts of pull carts . . . and golf club rental, and
eleven (11%) percent of the restaurant concession.7
¶12 According to the Agreements, the Golf Pros did not

receive any money from the "green fees, locker fees, player

promotional pass fees, and tournament fees"; the Golf Pros

simply collected these fees and "remit[ted]" them to the City.

According to the parties, "the City set the prices for greens

6
The Agreements did provide that the Golf Pros would
"cooperate with city employees to keep the premises . . . and
the area adjacent to the buildings, up to 25 yards, in a tidy
and presentable condition at all times." Additionally, the Golf
Pros were "responsible for all cleaning of the clubhouse
buildings."
7
Certain of the Agreements differed regarding the manner in
which riding cart and driving range revenue was allocated. This
difference does not affect our decision in this case.

6
 No. 2015AP2366

fees, passes and locker fees" and furnished "the equipment

necessary to process payments of greens fees, locker fees and

charges for season passes." On the other hand, the Golf Pros

set food, beverage, and merchandise prices.

¶13 The Agreements required the Golf Pros to provide

either $1,000 or $3,500 (depending on the Agreement) each year

"to a fund to be matched by the City to execute a formal

marketing plan for [the City's] golf program." The Agreements

state that the Golf Pros "agree[] to participate in the creation

of this marketing plan."

¶14 Finally, the Agreements provide that "[t]he

relationship between the City and the Golf Pro shall be one of

an independent contractor and not one of employer and employee,"

adding:

[I]n the operation and conduct of this Agreement, the
City does not grant Golf Pro the right to sell or
distribute any goods or services provided by the City,
nor does the City grant Golf Pro the right to use a
City trade name, trademark, service mark, logotype,
advertising or other commercial symbol.
¶15 On August 1, 2012——a few months before the expiration

of the Agreements——the Golf Pros met with the City's Parks

Superintendent ("Superintendent") and other City employees. The

Superintendent informed the Golf Pros that "the golf operation

was not sustainable" and asked for "proposals for clubhouse

operations for the next term of the" Agreements. Proposals were

submitted, but on October 8, 2012, the City's mayor decided to

"recommend internalizing clubhouse operations" to the City's
Common Council. On October 12, 2012, the Superintendent

7
 No. 2015AP2366

informed the Golf Pros that the Agreements were not going to be

renewed.

II. PROCEDURAL BACKGROUND

¶16 On October 25, 2012, the Golf Pros served the City

with a notice of claim. See Wis. Stat. § 893.80 ("Claims

against governmental bodies or officers, agents or employees;

notice of injury; limitation of damages and suits."). On

January 17, 2014, the Golf Pros filed a complaint in Dane County

circuit court against the City alleging that the City had failed

to comply with the WFDL in terminating the City's relationships

with them; the Golf Pros sought damages. Specifically, the

complaint alleged that the City "failed to provide to the Golf

Pros any written notice of termination or nonrenewal, let alone

a notice that can be said to comply with the requirements" of

the WFDL and "failed to provide the Golf Pros with the required

60 days in which to rectify any claimed deficiency," adding that

"indeed [the City] claimed no deficiency in the Golf Pros'

performance whatsoever." The Golf Pros argued that the City's
"nonrenewal and termination of the Golf Pros' respective

[Agreements] was a direct violation of the WFDL."8

¶17 On August 31, 2015, the circuit court issued a

decision and order granting a motion for summary judgment filed

by the City and denying a motion for partial summary judgment

filed by the Golf Pros. The decision was based on the circuit

8
On May 19, 2014, the Golf Pros filed an amended complaint.

8
 No. 2015AP2366

court's conclusion that "[t]he Golf Pros' contractual

relationships with the City were not protected 'dealerships'

under the [WFDL]." On September 29, 2015, the circuit court

entered an order for judgment and judgment of dismissal.

¶18 On November 11, 2015, the Golf Pros filed a notice of

appeal. On August 25, 2016, the court of appeals affirmed,

"agree[ing] with the circuit court that . . . the Golf Pros did

not have dealerships." Benson, unpublished slip op., ¶2. On

September 26, 2016, the Golf Pros filed a petition for review in

this court. On January 10, 2017, we granted the petition.

III. STANDARD OF REVIEW

¶19 This appeal arose following the circuit court's

decision on summary judgment. "We review summary judgment

rulings independently, applying the well-established standards

set forth in Wis. Stat. § 802.08." Marks v. Houston Cas. Co.,

2016 WI 53, ¶35, 369 Wis. 2d 547, 881 N.W.2d 309 (quoting

Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20, ¶20, 338

Wis. 2d 761, 809 Wis. 2d 529).
¶20 In this case we interpret and apply the WFDL. "The

interpretation and application of a statute present questions of

law that this court reviews de novo while benefitting from the

analyses of the court of appeals and circuit court." State v.

Denny, 2017 WI 17, ¶46, 373 Wis. 2d 390, 891 N.W.2d 144 (quoting

State v. Alger, 2015 WI 3, ¶21, 360 Wis. 2d 193, 858

N.W.2d 346).

IV. ANALYSIS

9
 No. 2015AP2366

¶21 The WFDL governs "dealerships," which are specially-

defined "contract[s] or agreement[s]" entered into between

"grantors" and "dealers." Wis. Stat. §§ 135.02-135.025.

Generally speaking, where dealerships exist, the WFDL imposes

certain obligations on grantors with respect to those

relationships. For instance, grantors are prohibited from

"terminat[ing], cancel[ling], fail[ing] to renew or

substantially chang[ing] the competitive circumstances of a

dealership agreement without good cause," Wis. Stat. § 135.03,

and usually must provide "at least 90 days' prior written notice

of termination, cancellation, nonrenewal or substantial change

in competitive circumstances." Wis. Stat. § 135.04. If a

grantor "violates" the WFDL,

a dealer may bring an action against such grantor in
any court of competent jurisdiction for damages
sustained by the dealer as a consequence of the
grantor's violation, together with the actual costs of
the action, including reasonable actual attorney fees,
and the dealer also may be granted injunctive relief
against unlawful termination, cancellation, nonrenewal
or substantial change of competitive circumstances.

Wis. Stat. § 135.06.
¶22 In this case we are asked to determine whether the

WFDL applies to the City, and if so, whether the relationships

between the Golf Pros and the City are "dealerships" under the

WFDL. We now examine these questions.

A. Whether the WFDL Applies to the City

¶23 To ascertain whether the WFDL applies to the City, we
look to the text of the relevant statute. As explained, the

10
 No. 2015AP2366

WFDL concerns itself with "dealerships," which are entered into

between "grantors" and "dealers." The WFDL defines "grantor" to

mean "a person who grants a dealership." Wis. Stat.

§ 135.02(5). "Dealer" is defined to mean "a person who is a

grantee of a dealership situated in this state." § 135.02(2).

Finally, the statute defines "dealership" in part as follows:

A contract or agreement, either expressed or
implied, whether oral or written, between 2 or more
persons, by which a person is granted the right to
sell or distribute goods or services, or use a trade
name, trademark, service mark, logotype, advertising
or other commercial symbol, in which there is a
community of interest in the business of offering,
selling or distributing goods or services at
wholesale, retail, by lease, agreement or otherwise.
§ 135.02(3)(a) (emphasis added). Thus, whether the WFDL applies

to the City turns on whether the City is a "person" under the

WFDL.

¶24 Luckily, "[p]erson" is defined in the WFDL: "a natural

person, partnership, joint venture, corporation or other

entity." Wis. Stat. § 135.02(6) (emphasis added). We agree

with the Golf Pros that the City falls within this definition.
The WFDL applies by its terms to "corporation[s]," and the City

is a municipal corporation. See, e.g., City of Madison v.

Hyland, Hall & Co., 73 Wis. 2d 364, 370, 243 N.W.2d 422 (1976)

("By statute, the City of Madison is 'a body corporate and

politic, with powers and privileges of a municipal corporation

at common law and conferred by these statutes.' [Wis. Stat.

11
 No. 2015AP2366

§ 66.019].[9] This court has repeatedly held that a city is a

municipal corporation."); Wis. Stat. § 62.09(7)(a) ("The

corporate authority of the city shall be vested in the mayor and

common council.").

¶25 This interpretation comports with our oft-repeated

rules that "[s]tatutory language is given its common, ordinary,

and accepted meaning" and that "[i]f the meaning of the statute

is plain, we ordinarily stop the inquiry." State ex rel. Kalal

v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271

Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000

WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659). "Without some

indication to the contrary, general words (like all words,

general or not) are to be accorded their full and fair scope.

They are not to be arbitrarily limited. This is the general-

terms canon." Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 101 (2012) (referring to this

rule by its Latin designation, "generalia verba sunt generaliter

intelligenda"); see also, e.g., State v. Kozel, 2017 WI 3, ¶39,
373 Wis. 2d 1, 889 N.W.2d 423 ("We will not read into the

statute a limitation the plain language does not evidence."

(quoting Cty. of Dane v. LIRC, 2009 WI 9, ¶33, 315 Wis. 2d 293,

759 N.W.2d 571)). The general term "corporation" thus

presumptively should be read to include more specific types of

corporations.

9
Wisconsin Stat. § 66.019 has since been renumbered. See
1999 Wis. Act 150, § 41.

12
 No. 2015AP2366

¶26 Numerous courts have similarly concluded that statutes

referring to "corporations" include within their ambit municipal

corporations. See, e.g., Lincoln v. Ricketts, 297 U.S. 373,

373-78 (1936) (section of Bankruptcy Act affected municipal

corporations, where the section applied to "person[s]" and

"person" was defined to include corporations); Hoye v. United

States, 277 F.2d 116, 119 (9th Cir. 1960) (section of Internal

Revenue Code defining "person" to include "an officer or

employee of a corporation" contemplated municipal corporations

because the section made "no distinction in its applicability to

different classes of corporations"); Madison Cty. Fiscal Court

v. Kentucky Labor Cabinet, 352 S.W.3d 572, 576 (Ky. 2011)

(cities were "subject to . . . wage and hour requirements" of

statute defining "employer" to include "corporation[s]," because

"[a] municipal corporation is a corporation" (second alteration

in original)).

¶27 But we need not look beyond Wisconsin for guidance on

the question. In Hyland, Hall & Co. we considered "whether
cities and counties have standing to sue for treble damages

under the Wisconsin antitrust act." Hyland, Hall & Co., 73

Wis. 2d at 367. The City itself was one of the plaintiffs in

that case. See id. at 367-68. The relevant statute applied to

"person[s]," which was defined to include "corporations." Id.

at 369 (quoting then-Wis. Stat. §§ 133.01, 133.04). We noted

that we had "repeatedly held that a city is a municipal

corporation" and concluded that "cities . . . are 'corporations'

13
 No. 2015AP2366

within the meaning of" the statute such that the City was

"entitled to sue for treble damages." Id. at 370-71.

¶28 In the course of our analysis in that case, we also

observed that Wis. Stat. § 990.01 provided as follows:

Construction of laws; words and phrases.
. . . In the construction of Wisconsin laws the words
and phrases which follow shall be construed as
indicated unless such construction would produce a
result inconsistent with the manifest intent of the
legislature:

. . . .

(26) Person. "Person" includes all partnerships,
associations and bodies politic and corporate.
Id. at 369 (emphasis added) (quoting then-Wis. Stat.

§ 990.01(26)). Reasoning that a city is a "body politic and

corporate," we confirmed that was "no contradiction" between

Wis. Stat. § 133.04 and Wis. Stat. § 990.01(26). Id. at 370-71.

¶29 Hyland, Hall & Co. all but disposes of the instant

question. As in Hyland, Hall & Co., we are presented with a

statute that pertains to "person[s]," defined to include

"corporation[s]." As in Hyland, Hall & Co., we have additional
guidance from the legislature regarding the definition of the

word "person": we should construe that word in the WFDL to

include "bodies politic or corporate" "unless such construction

would produce a result inconsistent with the manifest intent of

14
 No. 2015AP2366

the legislature." Wis. Stat. § 990.01(26).10 And finally, as in

Hyland, Hall & Co., the entity under consideration is the City,

a municipal corporation. One of the only differences between

Hyland, Hall & Co. and this case is that the City was a

plaintiff in the former but finds itself to be a defendant in

the latter.

¶30 "What is of paramount importance is that [the

legislature] be able to legislate against a background of clear

interpretive rules, so that it may know the effect of the

language it adopts." DOJ v. DWD, 2015 WI 114, ¶47, 365

Wis. 2d 694, 875 N.W.2d 545 (alteration in original) (quoting

Finley v. United States, 490 U.S. 545, 556 (1989), superseded by

statute as stated in Exxon Mobil Corp. v. Allapattah Serv.,

Inc., 545 U.S. 546, 557–58 (2005)). It would be peculiar, to

say the least, for us to conclude that the City is a

"corporation" and a "person" under the relevant statute in

Hyland, Hall & Co. but not in this case. Indeed, Hyland, Hall &

Co. and this case both involve chapters of the Wisconsin
Statutes——Chapter 133 and Chapter 135, respectively——concerned

with the "Regulation of Trade." See Wis. Stat. (Table of

Contents). The reasoning in Hyland, Hall & Co. applies with

equal force here, so we simply apply it. See DOJ v. DWD, 365

10
Since City of Madison v. Hyland, Hall & Co., 73
Wis. 2d 364, 370, 243 N.W.2d 422 (1976), the definition of
"person" in Wis. Stat. § 990.01(26) has been expanded to
"include[] all partnerships, associations and bodies politic or
corporate." Wis. Stat. § 990.01(26) (emphasis added).

15
 No. 2015AP2366

Wis. 2d 694, ¶47 (observing that the word "disclose" had been

interpreted in a prior case involving a different statute than

the one at issue and stating, "[W]e would require a convincing

reason indeed to interpret 'disclose' any differently in this

context.").

¶31 The noscitur a sociis canon of construction does not

change our conclusion. That canon provides that "an unclear

statutory term should be understood in the same sense as the

words immediately surrounding or coupled with it." Wis.

Citizens Concerned for Cranes & Doves v. DNR, 2004 WI 40, ¶40,

270 Wis. 2d 318, 677 N.W.2d 612. For reasons already discussed,

the word "corporation" is not unclear, so we have no need to

resort to the canon. But even if we did, the words "natural

person," "partnership," "joint venture," and "other entity" do

not so plainly evidence legislative exclusion of municipal

corporations from the meaning of "corporation" that we may

conclude that the City falls outside the WFDL.

A court has no right to resort to the maxim[] of
noscitur a sociis . . . for the purpose of reading
into a statute a distinction which the legislature
neither made nor intended to make. [This] rule[] [is]
not the master[] of the courts, but merely their
servant[], to aid them in ascertaining the legislative
intent. [It] afford[s] a mere suggestion to the
judicial mind that, where it clearly appears that the
lawmakers were thinking of a particular class of
persons or objects, their words of more general
description may not have been intended to embrace any
other than those within the class.
Boardman v. State, 203 Wis. 173, 176, 233 N.W.2d 556 (1930)
(quoting Benson v. Chicago St. P., M. & O. Ry. Co., 77 N.W. 798,

16
 No. 2015AP2366

799 (1899)); see also, e.g., State v. Quintana, 2008 WI 33, ¶35,

308 Wis. 2d 615, 748 N.W.2d 447 (concluding that the noscitur a

sociis canon did not apply because of a lack of similarity

between listed terms); cf. Noffke ex rel. Swenson v. Bakke, 2009

WI 10, ¶27, 315 Wis. 2d 350, 760 N.W.2d 156 ("If the legislature

intended such a narrow construction, the legislature could have

clearly placed such a restriction in the text of the statute.").

¶32 Finally, Wis. Stat. § 135.07 must be considered. That

section, entitled "Nonapplicability," lists certain parties to

whom the WFDL does not apply. See, e.g., Wis. Stat. § 135.07

("This chapter does not apply: . . . (2) To the insurance

business."). Cities are not among those listed. Clearly the

legislature recognized the need to circumscribe the WFDL in

certain circumstances, and we cannot conclude that the

possibility that the WFDL might apply to cities is so far-

fetched as to have escaped its consideration. "Under the well-

established canon of expressio unius est exclusio alterius (the

expression of one thing excludes another), where the legislature
specifically enumerates certain exceptions to a statute, we

conclude, based on that rule, that the legislature intended to

exclude any other exception." State v. Delaney, 2003 WI 9, ¶22,

259 Wis. 2d 77, 658 N.W.2d 416; cf. Lake City Corp. v. City of

Mequon, 207 Wis. 2d 155, 171, 558 N.W.2d 100 (1997) ("It is

clear that the legislature knew how to accomplish this goal,

since it included similar qualifying language in this very same

statute.").

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 No. 2015AP2366

¶33 In sum, we conclude that the City is a "person" under

the WFDL, and that the WFDL therefore applies to it.11

B. Whether the Relationships Between the Golf Pros
and the City Are "Dealerships" Under the WFDL
¶34 Having concluded that the WFDL applies to the City, we

now address whether the relationships between the Golf Pros and

the City are "dealerships" under the WFDL. Whether a

relationship constitutes a "dealership" under the WFDL is a

recurring question for courts, see Bush v. Nat'l School Studios,
Inc., 139 Wis. 2d 635, 646, 407 N.W.2d 883, in part because the

definition of "dealership" in the WFDL is "both extremely broad

and highly nuanced." Baldewein Co. v. Tri-Clover, Inc., 2000 WI

20, ¶12, 233 Wis. 2d 57, 606 N.W.2d 145. "In most cases, there

is rarely an obvious answer to the question of whether a

business is a dealership . . . ." Bush, 139 Wis. 2d at 647.

¶35 Again, the WFDL defines "dealership" in part as

follows:

11
Consequently, we need not consider whether the City also
qualifies as an "other entity" under the WFDL's definition of
"person." See Wis. Stat. § 135.02(6). However, we observe that
the term "entity" is obviously a broad one. See, e.g., Entity,
Black's Law Dictionary 650 (10th ed. 2014) (defining "entity" to
mean "[a]n organization (such as a business or governmental
unit) that has a legal identity apart from its members or
owners" (emphasis added)). And while one might argue that the
scope of this term should be limited by the ejusdem generis
canon of construction, pursuant to which "general words
follow[ing] specific words in the statutory text . . . should be
construed in light of the specific words listed," State v.
Quintana, 2008 WI 33, ¶27, 308 Wis. 2d 615, 748 N.W.2d 447,
application of that canon would require a court to determine
first the meaning of the word "corporation" anyway.

18
 No. 2015AP2366

A contract or agreement, either expressed or
implied, whether oral or written, between 2 or more
persons, by which a person is granted the right to
sell or distribute goods or services, or use a trade
name, trademark, service mark, logotype, advertising
or other commercial symbol, in which there is a
community of interest in the business of offering,
selling or distributing goods or services at
wholesale, retail, by lease, agreement or otherwise.
Wis. Stat. § 135.02(3)(a). In determining whether this

definition is satisfied, our cases have typically divided the

statutory language into three parts: (1) the existence of a
contract or agreement between two or more persons; (2) by which

a person is granted one of the rights specified; and (3) in

which there is the requisite "community of interest." See,

e.g., Kania v. Airborne Freight Corp., 99 Wis. 2d 746, 763, 300

N.W.2d 63 (1981).

¶36 In arguing that a dealership existed in this case, the

Golf Pros point to Wis. Stat. § 135.025, which states that

Chapter 135 "shall be liberally construed and applied to promote

its underlying remedial purposes and policies." § 135.025(1).

The statute lists the WFDL's "underlying purposes and policies"

as follows:

(a) To promote the compelling interest of the
public in fair business relations between dealers and
grantors, and in the continuation of dealerships on a
fair basis;

(b) To protect dealers against unfair treatment
by grantors, who inherently have superior economic
power and superior bargaining power in the negotiation
of dealerships;

(c) To provide dealers with rights and remedies
in addition to those existing by contract or common
law;

19
 No. 2015AP2366

(d) To govern all dealerships, including any
renewals or amendments, to the full extent consistent
with the constitutions of this state and the United
States.
§ 135.025(2). Pursuant to established case law, however, the

rule of liberal construction set forth in § 135.025(1) does not,

generally speaking, apply to the definition of "dealership":

If a relationship is a dealership, the protections
afforded the dealer are to be construed and applied
liberally to the dealer. But the statute itself
undertakes to draw a line to encompass the kinds of
enterprises and relationships which are to enjoy such
protection. There is no basis upon which the courts
can provide that protection to enterprises and
relationships which fall without the legislative
line."
Kania, 99 Wis. 2d at 775 (quoting H. Phillips Co. v. Brown-

Forman Distillers Corp., 483 F. Supp. 1289 (W.D. Wis. 1980));

cf. DOJ v. DWD, 365 Wis. 2d 694, ¶31 ("This policy contains the

very language we must interpret in this case. We cannot construe

the statute liberally in aid of disclosure of information and

protection from retaliatory action for disclosure of information

until we know what the terms 'disclosure of information' and
'retaliatory action' mean.").

¶37 Returning to the three-part test for the existence of

a dealership, we already know that the City, like the Golf Pros,

is a "person" under the WFDL. Additionally, the Agreements

between the parties are obviously "contract[s] or agreement[s]."

Our inquiry thus revolves around whether the other two

conditions necessary for the creation of a dealership are

satisfied. We examine each in turn, and conclude that a
dealership exists.

20
 No. 2015AP2366

1. The Right to Sell or Distribute Goods or Services

¶38 We conclude that the Agreements between the City and

the Golf Pros "granted [the Golf Pros] the right to sell or

distribute goods or services." Wis. Stat. § 135.02(3)(a).12

¶39 In analyzing this question, the court of appeals below

"acknowledge[d] difficulty in identifying whether the Golf Pros

were actually selling or distributing any City goods or services

and, if so, what those City goods or services were." Benson,

unpublished slip op., ¶26.13 The court of appeals "agree[d]

that, at the most abstract level, it might be said that the Golf

Pros sold or distributed a City 'service,' namely, the service

of providing golf courses for public use." Id. But then the

court of appeals concluded:

[T]he most accurate way to view the unique facts here
is that the Golf Pros were not selling or distributing
City goods or services; rather, the Golf Pros were
engaged in the business of selling or renting non-City
goods (golfing equipment, concessions, and pro shop
12
Because we conclude that the Golf Pros were "granted the
right to sell or distribute goods or services," we need not
determine whether the Golf Pros were likewise "granted the right
to . . . use a trade name, trademark, service mark, logotype,
advertising or other commercial symbol." Wis. Stat.
§ 135.02(3)(a).
13
We assume without deciding for purposes of this case
that, as the court of appeals below indicated might be the case
under the WFDL, the issue is whether the Golf Pros possess the
right to sell or distribute City goods or services rather than,
for example, "the right to sell non-City goods and their own
services on City property." Benson v. City of Madison, No.
2015AP2366, unpublished slip op., ¶26 n.8 (Wis. Ct. App.
Aug. 25, 2016). An argument might be made that either would
meet the plain terms of the statute.

21
 No. 2015AP2366

items) and selling their own professional services to
the City and the public, including golf course
management services to the City and golf lessons to
golf course patrons.
Id. We do not subscribe to this reasoning; the court of

appeals' initial conception of the service at issue was closer

to the mark.

¶40 In order to make golf courses available to paying

members of the public, the City had to do more than merely open

up some of its land. It had to perform a number of tasks to

create, maintain, and operate its land as golf courses.

Producing a golf course and opening it up to the public for use

in exchange for money is undoubtedly a service. See Service,

Black's Law Dictionary 1576 (10th ed. 2014) (defining "service"

as "the performance of some useful act or series of acts for the

benefit of another, usu. for a fee").

¶41 The City granted the Golf Pros the right to sell this

City service to the public. We have characterized "the right to

sell" under the WFDL variously (but not necessarily

exhaustively) as the "unqualified authorization to transfer the

product at the point and moment of the agreement to sell" or the

"authority to commit the grantor to a sale." Foerster, Inc. v.

Atlas Metal Parts Co., 105 Wis. 2d 17, 26, 313 N.W.2d 60 (1981).

The City granted the Golf Pros authority to commit it to a sale

of its service in a number of ways.

¶42 Most importantly, a member of the public seeking to

golf on a City course set her reservation through the Golf Pro
or the Golf Pro's attendants and paid her greens fee to the Golf

22
 No. 2015AP2366

Pro or the Golf Pro's attendants. The City provided "the

equipment necessary to process payments of greens fees, locker

fees and charges for season passes" and the Golf Pro remitted

the resultant revenue to the City. In this way, the Golf Pros

sold access to City courses.

¶43 Similarly, the City required the Golf Pros to operate

golf club and cart rental services to those using the City's

courses. The Golf Pros provided the carts and clubs and the

money earned from portions of the service was shared between the

Golf Pros and the City.

¶44 In some of these instances the Golf Pros set the

relevant prices; in others the City set the relevant prices.

But in each case the City instituted the service, authorized the

Golf Pros to sell that service, and took some or all of the

income generated by the service.

¶45 This case is distinguishable from Bakke Chiropractic

Clinic v. Physicians Plus Ins. Corp., 215 Wis. 2d 605, 573

N.W.2d 542 (Ct. App. 1997). That case involved a health
maintenance organization insurer which "enter[ed] into provider

agreements directly with independent chiropractors and

chiropractic clinics"; the providers then provided "services

to . . . members" of the insurer. Bakke, 215 Wis. 2d at 608-09.

The court of appeals concluded that the providers in Bakke sold

"only their own chiropractic services, to [the insurer] and to

others," rather than the insurer's product, which the court of

appeals characterized as "health insurance coverage." Id. at
616. The court of appeals contrasted this with our decision in
23
 No. 2015AP2366

Bush. Id. at 615-16. The putative dealer in Bush was a

photographer who worked for a "corporation engaged in the school

photography business." Bush, 139 Wis. 2d at 637-38. The Bakke

court explained that "[e]ven though Bush performed numerous

services for [the corporation], all of his efforts were directed

toward selling [the corporation's] products and services to the

public." Bakke, 215 Wis. 2d at 616.

¶46 This case is more like Bush in this regard than Bakke.

In selling access to the City's golf course and renting out

carts and clubs, the Golf Pros were selling the City's service

of providing a functioning golf course to members of the public.

This is not to foreclose the possibility that the Golf Pros were

also selling some of their own services to the City. But even

if they were doing so, they were simultaneously selling the

City's service to the public.14

¶47 The City suggests, at least with regard to the

collection of greens fees and money for season passes, that the

Golf Pros "exercised no more discretion and assumed no more risk
in these transactions than a movie theater cashier or parking

lot attendant." Assuming this argument is correct, we fail to

see exactly what it proves. The WFDL does not provide that

every agreement granting a person "the right to sell or

14
We need not examine whether or how other of the many
activities performed by the Golf Pros may have contributed to
the "sell or distribute" requirement of the WFDL. With regard
to some of these activities, like the sale of merchandise, the
City received no income.

24
 No. 2015AP2366

distribute goods or services" is a dealership; there also must

be the requisite community of interest, a subject to which we

will turn momentarily. At present, we simply conclude that the

Agreements between the City and the Golf Pros granted the Golf

Pros the right to sell or distribute the City's services.

¶48 Before proceeding to the community of interest

analysis, we pause to recognize that the Agreements specifically

provide that "the City does not grant Golf Pro the right to sell

or distribute any goods or services provided by the City." But

Wis. Stat. § 135.025 states that "[t]he effect of this chapter

may not be varied by contract or agreement. Any contract or

agreement purporting to do so is void and unenforceable to that

extent only." § 135.025(3). We are thus required to reject the

City's attempt to contract around the WFDL.

2. Community of Interest

¶49 Wisconsin Stat. § 135.02(1) defines "[c]ommunity of

interest" as "a continuing financial interest between the

grantor and grantee in either the operation of the dealership
business or the marketing of such goods or services."

§ 135.02(1). We have identified two "guideposts" to be used in

analysis of whether a community of interest exists: a

"continuing financial interest," that is, "a shared financial

interest in the operation of the dealership or the marketing of

a good or service," and "interdependence," or "the degree to

which the dealer and grantor cooperate, coordinate their

activities and share common goals in their business
relationship." Ziegler Co. v. Rexnord, Inc., 139 Wis. 2d 593,
25
 No. 2015AP2366

604-05, 407 N.W.2d 873 (1987), on reconsideration, 147 Wis. 2d

308, 433 N.W.2d 8 (1988). In Baldewein Co. we stated:

When a dealer sinks substantial resources into
its relationship with a particular grantor——time,
money, employees, facilities, inventory, advertising,
training——or derives substantial revenue from the
relationship (as a percentage of its total), or some
combination of the two, the grantor's power to
terminate, cancel, or not renew the relationship
becomes a substantial threat to the economic health of
the dealer and a community of interest can be said to
exist.
Baldewein Co., 233 Wis. 2d 57, ¶27.15

15
In the past we have also listed several considerations
that are "useful in determining whether a community of interest
exists," Central Corp. v. Research Products Corp., 2004 WI 76,
¶34, 272 Wis. 2d 561, 681 N.W.2d 178:

[H]ow long the parties have dealt with each other; the
extent and nature of the obligations imposed on the
parties in the contract or agreement between them;
what percentage of time or revenue the alleged dealer
devotes to the alleged grantor's products or services;
what percentage of the gross proceeds or profits of
the alleged dealer derives from the alleged grantor's
products or services; the extent and nature of the
alleged grantor's grant of territory to the alleged
dealer; the extent and nature of the alleged dealer's
uses of the alleged grantor's proprietary marks (such
as trademarks or logos); the extent and nature of the
alleged dealer's financial investment in inventory,
facilities, and good will of the alleged dealership;
the personnel which the alleged dealer devotes to the
alleged dealership; how much the alleged dealer spends
on advertising or promotional expenditures for the
alleged grantor's products or services; the extent and
nature of any supplementary services provided by the
alleged dealer to consumers of the alleged grantor's
products or services.

(continued)
26
 No. 2015AP2366

¶50 The undisputed facts establish that there exists a

community of interest in the business of selling the City's

services, that is, a "continuing financial interest between the

[City] and [the Golf Pros] in . . . the operation of the

dealership business." Wis. Stat. § 135.02(1).

¶51 To begin with, the record shows that the Golf Pros

"[sunk] substantial resources into its relationship with" the

City. They were required to hire, train, and compensate

employees, purchase "all supplies and equipment" pertaining to

the golf carts and golf range, contribute to a marketing plan,

and maintain insurance. In addition, the Golf Pros were

required to sell food, beverages, and merchandise, which

Ziegler Co. v. Rexnord, Inc., 139 Wis. 2d 593, 606, 407
N.W.2d 873 (1987), on reconsideration, 147 Wis. 2d 308, 433
N.W.2d 8 (1988).

Although we have stated that these extrastatutory items
"should" be considered by courts, id. at 606, it is more
accurate to say that some or all "may" be considered; the
factors are meant to be a helpful aid in addressing the
overriding community of interest question, not an unwieldy
burden. See generally Home Protective Servs., Inc. v. ADT Sec.
Servs., Inc., 438 F.3d 716, 719-20 (7th Cir. 2006)
(characterizing the list as "long" and attempting to "distill[]"
it). It remains true, however, that a court should examine the
totality of the relationship between the grantor and the dealer.
See Ziegler Co., 139 Wis. 2d at 605-06.

27
 No. 2015AP2366

required obtaining both these commodities and any appropriate

licenses.16

¶52 In Kania we found detrimental to the putative dealer's

case the facts that he was "not authorized to sell [the putative

grantor's] services" and that he "was paid for his

transportation services on a weekly basis at a specified rate";

here, the Golf Pros were authorized to sell the City's services,

and while they were paid a retainer by the City, they also

shared with the City revenue from the cart and golf club

services. Kania, 99 Wis. 2d at 770. The operation of the golf

courses "was a joint undertaking of [the Golf Pros] and [the

City]. [They] shared in the profitability of the undertaking."

Bush, 139 Wis. 2d at 655. The City and the Golf Pros'

relationship was a lengthy one, and they shared the duties

inherent in maintaining an operative course, "cooperat[ing],

coordinat[ing] their activities and shar[ing] common goals in

their business relationship." Ziegler Co., 139 Wis. 2d at 605.

16
While we did not rely on all of these activities for our
analysis of whether the Golf Pros had been granted the right to
sell or distribute goods or services, the Golf Pros were
required to perform these activities as a condition of their
arrangements with the City. Consequently, the Golf Pros'
significant investment in these activities is relevant to the
question of whether "the grantor's power to terminate, cancel,
or not renew the relationship [was] a substantial threat to the
economic health of the dealer." Baldewein Co. v. Tri-Clover,
Inc., 2000 WI 20, ¶27, 233 Wis. 2d 57, 606 N.W.2d 145.
Similarly, insofar as the Golf Pros were selling a City service
by providing access to City golf courses, the nature of the Golf
Pros' investment in those courses is relevant.

28
 No. 2015AP2366

¶53 In sum, the relationships between the Golf Pros and

the City fulfill the statutory definition of "community of

interest": "a continuing financial interest between the grantor

and grantee in . . . the operation of the dealership business."

Wis. Stat. § 135.02(1). Given the above, it is more than fair

to say that the City's "power to terminate, cancel, or not renew

the relationship[s] [was] a substantial threat to the economic

health of the [Golf Pros]." Baldewein Co., 233 Wis. 2d 57, ¶27.

C. Remaining Issues

¶54 We now dispose of the City's remaining arguments. The

City argues that the Golf Pros' WFDL claims are time-barred. We

disagree. Under Wis. Stat. § 893.93(3)(b), "[a]n action under

ch. 135" "shall be commenced within one year after the cause of

action accrues or be barred." § 893.93(3)(b). The notice of

claim statute, Wis. Stat. § 893.80, increased the applicable

period in this case to one year and 120 days. See Colby v.

Columbia Cty., 202 Wis. 2d 342, 357, 550 N.W.2d 124 (1996).

Next,

[i]n Wisconsin, a cause of action generally accrues
for statute of limitations purposes "'where there
exists a claim capable of present enforcement, a
suable party against whom it may be enforced, and a
party who has a present right to enforce it.'" When a
grantor violates the provisions of the WFDL, the
dealer is given a claim capable of present
enforcement, a suable party in the grantor, and a
present right to enforce that claim.
Les Moise, Inc. v. Rossignol Ski Co., Inc., 122 Wis. 2d 51, 57,

361 N.W.2d 653 (1985) (citation omitted) (quoting Barry v.
Minahan, 127 Wis. 570, 573, 107 N.W. 488 (1906)).

29
 No. 2015AP2366

¶55 In Les Moise we considered whether, "where the grantor

has terminated the dealer as of a future date and given the

dealer written notice of that decision," accrual of a cause of

action under the WFDL for termination without good cause, see

Wis. Stat. § 135.03, differed from accrual of a cause of action

under the WFDL for termination without proper written notice,

see Wis. Stat. § 135.04. Les Moise, 122 Wis. 2d at 60-61. The

suggestion had been made that the former cause of action accrued

on the date of termination, whereas the latter cause of action

accrued when the written notice was received. Id. We concluded

that "[w]hen the dealer receives a written termination notice,

he may bring an action under sec. 135.03, if the grantor lacked

good cause to terminate, or under sec. 135.04, if the written

notice did not comply with that provision." Id. at 61.

¶56 Here, the only notice the Golf Pros received occurred

on October 12, 2012, when the Superintendent informed the Golf

Pros that the Agreements were not going to be renewed. This is

the earliest date on which their causes of action might have
accrued. The Golf Pros filed their complaint on January 17,

2014, within one year and 120 days of October 12, 2012. Their

claims are not time-barred.

¶57 The City argues that the Golf Pros' causes of actions

actually accrued in August 2012 when the Superintendent asked

for new proposals because the Golf Pros "knew by [then] that the

City would be making significant changes" and that "their five-

year contracts would not be renewed on substantially the same
terms." We reject this argument. In examining this issue, the
30
 No. 2015AP2366

circuit court below cited our decision in Les Moise, where we

explained that "when Les Moise received the written termination

notice it was immediately informed of the intention of the

grantor and it was immediately capable of determining whether

the written notice and termination violated the WFDL." Les

Moise, 122 Wis. 2d at 62. In contrast, the facts below

demonstrate that as of August 2012 the Golf Pros did not know

what the grantor's decision would be and were not capable of

assessing whether the City had complied with the WFDL.

¶58 The City also argues that the notice of claim statute

does not apply here, thus reducing the Golf Pros' time to file

their lawsuit to one year, rather than one year and 120 days.

We agree with the Golf Pros that the notice of claim

requirements apply under the circumstances of this case.

¶59 As a general rule, the notice of claim requirements

govern in "all actions." See City of Racine v. Waste Facility

Siting Bd., 216 Wis. 2d 616, 621-24, 575 N.W.2d 712 (1998).

However, exceptions to this rule exist. See, e.g. E-Z Roll Off,
LLC v. Cty. of Oneida, 2011 WI 71, ¶¶21-22, 335 Wis. 2d 720, 800

N.W.2d 421 (collecting cases). To determine whether an

exception exists, we examine whether there is a "a specific

statutory scheme in conflict with the notice of claim

requirements," whether there is "a legislative preference for a

prompt resolution of the type of claim under consideration," and

whether "the purposes for which § 893.80 was enacted would be

furthered by requiring that a notice of claim be filed." Id.,

31
 No. 2015AP2366

¶¶23-24, 29 (citing Town of Burke v. City of Madison, 225

Wis. 2d 615, 625, 593 N.W.2d 822 (Ct. App. 1999)).

¶60 These considerations counsel in favor of applying the

notice of claim requirements here. The WFDL's statute of

limitations period of one year is not "more

restrictive . . . than the 120-day notice of claim

requirements." Id., ¶27. Further, although the WFDL allows for

injunctive relief, it also permits damages, Wis. Stat. § 135.06,

and "[t]he plain meaning of the statute places the choice in the

hands of the dealer." Frieburg Farm Equip., Inc. v. Van Dale,

Inc., 978 F.2d 395, 402 (7th Cir. 1992). The Golf Pros do not

seek injunctive relief in this case. See E-Z Roll Off, 335

Wis. 2d 720, ¶28. Finally, the twin purposes of the notice of

claim requirements, "to give governmental entities the

opportunity to investigate and evaluate potential claims" and

"to afford governmental entities the opportunity to compromise

32
 No. 2015AP2366

and budget for potential settlement or litigation," are well-

served in cases like this one.17

¶61 The City's final argument is that it is immune from

the Golf Pros' lawsuit under Wis. Stat. § 893.80(4). But

"[g]overnmental immunity under Wis. Stat. § 893.80(4) applies

only to claims based in tort . . . ." Scott v. Savers Property

& Cas. Ins. Co., 2003 WI 60, ¶53, 262 Wis. 2d 127, 663

N.W.2d 715 (2003). The City does not develop an argument

explaining why a statutory WFDL claim is "based in tort," other

than to contend that "the focus is not on the particular legal

theory pled" and that the Golf Pros' "claim is based solely on

the City's discretionary policy decision to change the operation

of its golf courses."

¶62 The mere fact that the City's decision may have been,

in the City's words, "a high-level, planning decision that

required the exercise of discretion and the weighing and

balancing of numerous factors inherent in governmental decision-

17
We note that in most lawsuits it is the plaintiff seeking
exemption from the notice of claim requirements; here, the City
seeks exemption in order to shorten the applicable limitations
period. See, e.g., E-Z Roll Off, LLC v. Cty. of Oneida, 2011 WI
71, ¶23, 335 Wis. 2d 720, 800 N.W.2d 421 (framing one part of
the three-part inquiry used in determining whether an exception
to the notice of claim requirements exists as "whether there is
a specific statutory scheme for which the plaintiff seeks
exemption" (emphasis added) (citing Town of Burke v. City of
Madison, 225 Wis. 2d 615, 625, 593 N.W.2d 822 (Ct. App. 1999)).
We need not and do not express an opinion on a threshold
question of whether an entity like the City is permitted to
argue that it should not have been given notice of a claim,
because the argument fails in this case anyway.

33
 No. 2015AP2366

making" does not establish the City's right to immunity. Cf.,

e.g., Energy Complexes, Inc. v. Eau Claire Cty., 152

Wis. 2d 453, 464, 449 N.W.2d 35 (1989) ("We conclude that

neither the common law nor [Wis. Stat. §]

893.80(4) . . . immunize the County from ECI's breach of

contract lawsuit, even if the contract was terminated because of

legislative acts occurring after the contract was signed.").

Without more, we conclude that the City is not immune from suit.

V. CONCLUSION

¶63 We conclude that the WFDL applies to the City; that

the relationships between the Golf Pros and the City are

"dealerships" under the WFDL; that the Golf Pros' lawsuit is not

time-barred; and that the City is not immune from the lawsuit.

Consequently, we reverse the decision of the court of appeals

and remand for further proceedings consistent with this opinion.

By the Court.—The decision of the court of appeals is

reversed, and the cause is remanded to the circuit court for
further proceedings consistent with this opinion.

34
 No. 2015AP2366.dk

¶64 DANIEL KELLY, J. (concurring). I join the court's

opinion but for one persnickety point——our analysis treated a

certain piece of evidence in the wrong part of the dealership

analysis. As our opinion accurately observes, a dealership is

(as relevant here) a "contract or agreement . . . between 2 or

more persons, by which a person is granted the right to sell or

distribute goods or services . . . in which there is a community

of interest in the business of . . . selling . . . goods or

services . . . ." Wis. Stat. § 135.02(3)(a).

¶65 This case requires us to address both the "selling

goods or services" and the "community of interest" elements of

the definition of a dealership. The first element inquires into

the relationship between the parties as it relates to the sale

of goods or services. Contracts described by this element are

those in which "a person is granted the right to sell or

distribute goods or services . . . ." Wis. Stat.

§ 135.02(3)(a). Although the operative part of this phrase
appears in the passive voice ("is granted"), we know the

"granting" party is the City of Madison. Thus, the "person" to

whom the phrase refers must be the Golf Pros. It necessarily

follows, then, that the goods or services to which this element

applies must belong to the grantor (because a grantee need not

grant itself rights in its own property, and a grantor may not

grant rights in something it does not own).

¶66 So if the contracts under consideration created
dealerships, they must have conferred on the Golf Pros the right

1
 No. 2015AP2366.dk

to sell goods or services belonging to the City. Our opinion

correctly concludes they did——we said the contracts were selling

access to the City's golf courses. That is certainly a service,

and a particularly welcome one at that. See Majority op., ¶¶40-

41.

¶67 Our analysis of this dealership element should have

stopped there. Instead, we proceeded to address the contracts'

requirement that the Golf Pros provide golf club and cart rental

services to the City's golfers. But the clubs and carts belong

to the Golf Pros, not the City. So the "goods or services"

element of the dealership statute simply has nothing to say

about them. They do, however, belong in the "community of

interest" element of the analysis, which our opinion deftly

handles, and so I need say no more.

¶68 For this reason, I concur.

2
 No. 2015AP2366.ssa

¶69 SHIRLEY S. ABRAHAMSON, J. (dissenting). The

dispositive issue is whether the City of Madison is a "person"

in the Wisconsin Fair Dealership Law. If it is not, the Law is

not applicable to municipalities.1

¶70 This case is one of first impression. Neither the

parties, the majority, nor I could find any reported case,

either in Wisconsin or in any of the other many states with

similar dealership statutes, holding that a municipality is

subject to the statute. I would affirm the judgment of the

circuit court and the decision of the court of appeals, but on

the ground that that the Fair Dealership Law does not apply to

the City of Madison.

¶71 The majority opinion's ruling that the City of Madison

is a "person" in the Law does not follow or provide clear

1
I therefore need not and do not address the stretch the
majority opinion makes to fit the instant case into the
Wisconsin Fair Dealership Law.

The word "dealership" is used instead of "franchise" in the
Wisconsin Fair Dealership Law to avoid confusion between the
Dealership Law and the Wisconsin Franchise Investment Law, Wis.
Stat. ch. 553. Foerster, Inc. v. Atlas Metal Parts Co., 105
Wis. 2d 17, 23-24, 313 N.W.2d 60 (1981). For an historical
recount of the circumstances leading up to the enactment of the
Fair Dealership Law, see Robert B. Corris, In the Trenches:
OPEC, Gas Lines, and the Wisconsin Fair Dealership Law, Wis.
Lawyer, Apr. 1999, at 25.

The word "franchise" also has a special meaning in
municipal law. See 12 Eugene McQuillin, The Law of Municipal
Corporations ch. 34 (3d ed. 1995). The word franchise is often
used in municipal law to refer to a municipality entering into
an agreement with a utility company enabling the utility to use
property owned by the municipality.

1
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interpretive rules2 and has, I think, widespread ramifications

for all municipalities in this state and the many contracts on

diverse topics to which they are parties. Municipalities will

be limited with regard to managing their finances and their

contracts. The majority opinion has not considered these

ramifications.3

¶72 The Wisconsin Fair Dealership Law, Wis. Stat.

§ 135.02(5) and (6), defines "grantor" under the Law as a

"person" to whom the Law applies. It further defines "person"

as a natural person, partnership, joint venture, corporation, or

other entity. The legislature has not referenced "a

municipality" or any governmental entity in the definition of

"person" for purposes of the Dealership Law:

Wis. Stat. 135.02. Definitions. In this chapter
[135]:

. . . .

(5) "Grantor" means a person who grants a dealership.

(6)"Person" means a natural person, partnership, joint
venture, corporation or other entity.
¶73 Although rules of interpretation serve the court, they

are not absolute rulers of a court's interpretation. Boardman

2
See majority op., ¶30 (The legislature should "'be able to
legislate against a background of clear interpretive rules, so
that it may know the effect of the language it adopts.'")
(quoted source omitted).
3
Consequences are an important consideration in
interpreting a statute. If an interpretation results in
"unreasonable or absurd" consequences, that interpretation may
be rejected. Wisconsin Carry, Inc. v. City of Madison, 2017 WI
19, ¶20, 373 Wis. 2d 543, 892 N.W.2d 233 (2017).

2
 No. 2015AP2366.ssa

v. State, 203 Wis. 173, 233 N.W. 556 (1930) (quoting Benson v.

Chicago, St. P., M. & O. Ry. Co., 77 N.W. 798, 799 (Minn.

1899)). Nevertheless, numerous interpretive rules point to the

conclusion that a municipality does not fall within the

definition of "person" under the Fair Dealership Law.

¶74 Applying these rules and looking to other factors, I

conclude that the City of Madison does not fall within the

definition of "person" in the Wisconsin Fair Dealership Law.

¶75 First, the Legislature's instructions to the court in

deciding whether a statute governs a municipality make clear

that the Fair Dealership Law should not be interpreted as

applying to a city.

¶76 The legislature has clearly and explicitly stated that

the powers conferred on cities "shall be limited only by express

language." Wis. Stat. § 62.11(5).4 Included among the powers

conferred on a city is "the management and control of the city

property." Wis. Stat. § 62.11(5).5 The golf courses at issue

are the property of the City of Madison.
¶77 In addition to the power to manage its property, the

City of Madison is also statutorily authorized to own, operate,

4
See Wis. Stat. § 61.34(1) for the same provision relating
to village powers.
5
The court has stated that "[t]he City of Madison possesses
the broad home rule powers outlined by Wis. Stat. § 62.11(5) and
Article XI, Section 3 of the Wisconsin Constitution. This power
allows the City to act for the 'health, safety, and welfare of
the public,' and to carry out its policy goals by 'license,
regulation, suppression . . . and other necessary or convenient
means.'" Eichenseer v. Madison-Dane County Tavern League, Inc.,
2008 WI 38, ¶49, 308 Wis. 2d 684, 748 N.W.2d 154.

3
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and finance parks and golf links. See Wis. Stat. § 66.0621(2).

The City of Madison has adopted an ordinance creating a golf

subcommittee of the Board of Park Commissioners. The

subcommittee "[a]dvises the Commission regarding policies, rate

structure, rules and regulations, capital improvements, user

complaints, operations and the selection of golf pros." See

Madison, Wis. General Ordinances § 33.05(5)(a).

¶78 The Fair Dealership Law does not contain any express

language limiting a city's power to contract about the

management and control of its golf links. No other law is cited

as expressly limiting the City in the operation of its golf

links.

¶79 In addition to these powers, the city council "shall

have power to act for the government and good order of the city,

for its commercial benefit, and for the health, safety, and

welfare of the public . . . ." Wis. Stat. § 62.11(5).

¶80 The legislature has mandated that a city's powers

"shall be liberally construed in favor of the rights, powers and
privileges of cities to promote the general welfare, peace, good

order and prosperity of such cities and the inhabitants

thereof." Wis. Stat. § 62.04.

¶81 According to these statutes, the City of Madison has

the power——which is to be liberally interpreted——to manage its

property, operate golf links, and to act for the good order of

the city, for its commercial benefit, and for the health,

safety, and welfare of the public.

4
 No. 2015AP2366.ssa

¶82 And the legislature has clearly and explicitly stated

that the powers conferred on cities "shall be limited only by

express language." Wis. Stat. § 62.11(5).

¶83 The majority opinion ought to follow the legislature's

instructions in Wis. Stat. § 62.11(5): It ought to interpret

the Dealership Law as not limiting the powers of the City of

Madison because nothing in the Fair Dealership Law expressly

limits the City of Madison in exercising management over its

golf courses or expressly limits the City's power to act for the

good order of the city, its commercial benefit, or for the

health, safety, and welfare of the public with regard to its

golf courses.

¶84 Applying the legislative instructions in § 62.11(5) to

the instant case, I conclude that the City of Madison does not

fall within the definition of the word "person" in the Fair

Dealership Law.

¶85 Second, the interpretive rule denominated "statutes in

derogation of sovereignty" supports the legislature's
instructions that the powers conferred on cities "shall be

limited only by express language." Under this interpretive

rule, applicable to all subdivisions of government, any

statutory provision that is susceptible to being read as

applying to a governmental entity and to a private entity should

be read as not applying to the governmental entity absent other

5
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indicia supporting a contrary result.6 This rule is premised on

the policy of preserving for the public the efficient

functioning of government.7

¶86 This rule of statutory interpretation has been applied

in Wisconsin cases. See, e.g., State ex rel. Martin v. Reis,

230 Wis. 683, 687, 284 N.W. 580 (1939) (When the legislative

intent is to "include the state or any of its political

subdivisions, it is explicitly so stated in the

definition. . . . It is universally held both in this country

and in England that such statutes do not apply to the state

unless the state is explicitly included by appropriate

language."); Sullivan v. School Dist. No. 1 of City of Tomah,

179 Wis. 502, 506-07, 509-10, 191 N.W. 1020 (1923) ("Legislation

in derogation of the common law should be strictly construed

most favorably to the public corporation and not to the claimant

for damages. . . . [G]eneral statutes are not to be construed to

include, to its hurt, the sovereign. . . . [Application of a

statute to a political subdivision] is a matter which rests with
the wisdom of the Legislature, and not with the courts, and

until such change is effected by a proper statute, we must

consider it our duty to adhere to our former decisions and to

pronounce in favor of the nonliability doctrine.").

6
3 Norman J. Singer & J.D. Shambie Singer, Sutherland
Statutes and Statutory Construction § 62.1, at 377-82 (7th ed.
2014).
7
3 Singer, supra note 6, § 62.1, at 377-82.

6
 No. 2015AP2366.ssa

¶87 Applying this interpretive rule to the instant case, I

conclude that the City of Madison does not fall within the

definition of the word "person" in the Fair Dealership Law.

¶88 Third, in addition to the two interpretive rules

described above supporting the conclusion that the City of

Madison is not governed by the Fair Dealership Law, another

similar rule of statutory interpretation "long followed"8 and

"generally applied"9 in Wisconsin law validates the conclusion

that the City of Madison does not fall within the definition of

"person," namely the "presumption of inapplicability."

¶89 The court has adopted the "presumption of

inapplicability" as an interpretive aid. Statutory provisions

that do not explicitly govern governmental entities do not apply

to governmental entities:

Statutory provisions which are written in such general
language as to make them reasonably susceptible to
being construed as applicable alike both to the
government and to private parties are subject to a
presumptive rule of construction which exempts the
government from their operation in the absence of
other particular indicia supporting a contrary result
in particular instances.
Wis. Veterans Home v. Div. of Nursing Home Forfeiture Appeals,

104 Wis. 2d 106, 110, 310 N.W.2d 646 (Ct. App. 1981) (quoting 3

8
Wis. Veterans Home v. Div. of Nursing Home Forfeiture
Appeals, 104 Wis. 2d 106, 110, 310 N.W.2d 646 (Ct. App. 1981)
9
DNR v. City of Waukesha, 184 Wis. 2d 178, 194, 515
N.W.2d 888 (1994), abrogated on other grounds by State ex rel.
Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 547 N.W.2d 587
(1996).

7
 No. 2015AP2366.ssa

Sands, Statutes and Statutory Construction § 62.01, at 63 (4th

ed. 1974)).10

¶90 Although Wisconsin cases rely on this "presumption of

inapplicability," the cases acknowledge, as do I, that this

presumption may be overcome.

¶91 The presumption may be overcome when (1) the statute's

objective "could not be accomplished without including the

government"; or (2) including a particular activity under the

statute "would not vitally interfere with the processes of

government."11

¶92 The Golf Pros have not overcome the presumption of the

inapplicability of the Fair Dealership Law to the City of

Madison. The objectives of the Law can be accomplished without

including the City of Madison as a "person" in the Law.

Including the City as a "person" in the Law vitally interferes

with the City's managing recreational facilities and the fiscal

policies of the City.

¶93 Applying this "presumption of inapplicability" in the
instant case, I conclude that the City of Madison does not fall

within the definition of the word "person" in the Fair

Dealership Law.

10
For a nearly identical statement in a more recent version
of Sands, see 3 Singer, supra note 6, § 62.1, at 377-78.
11
Town of Janesville v. Rock Cty., 153 Wis. 2d 538, 542-44,
451 N.W.2d 436 (Ct. App. 1989); DNR v. City of Waukesha, 184
Wis. 2d 178, 194-95, 515 N.W.2d 888 (1994), overruled in part by
State ex rel. Auchinleck v. Town of Grange, 200 Wis. 2d 585,
597, 547 N.W.2d 587 (1996).

8
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¶94 Fourth, the legislature has not defined "person" for

the Fair Dealership Law. When the legislature wants the word

"person" to mean a governmental body, it knows how to write such

a definition. When the legislature wants to govern a

governmental body, it has included one or more words in the

enumeration of "person" conveying that meaning. Yet, the

legislature did not refer to a governmental body in the

definition of "person" in the Fair Dealership Law.

¶95 The legislature often defines words exclusively and

distinctively for particular statutory enactments.12

"[S]pecially-defined words or phrases are given their technical

or special definitional meaning."13

¶96 For example, the Wisconsin antitrust law unequivocally

defines "person" for purposes of that law to include

"individuals, the state and all its political subdivisions, all

counties, cities, villages, towns, school districts,

governmental agencies and bodies politic and corporate, and all

corporations . . . . " Wis. Stat. § 133.02(3).

12
See, e.g., State v. Neumann, 2013 WI 58, ¶73, 348
Wis. 2d 455, 832 N.W.2d 560 ("The word 'recklessly' is defined
differently in the second-degree reckless homicide statute (Wis.
Stat. § 939.24(1)) and in the criminal child abuse statute
§ 948.03(1)), resulting in requiring different mens rea.").
13
DOJ v. DWD, 2015 WI 114, ¶22, 365 Wis. 2d 694, 875
N.W.2d 545 (citation omitted). See also Bruno v. Milwaukee
Cty., 2003 WI 28, ¶8, 260 Wis. 2d 633, 660 N.W.2d 656 ("We have
'long recognized that when a court construes an ordinance or
statute, words must be given their common meaning.' It is also
'well established that technical words or phrases with a
peculiar meaning in the law must be construed according to such
meaning.'") (quoted sources omitted).

9
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¶97 The Fair Dealership Law unequivocally defines "person"

for purposes of the Fair Dealership Law. Unlike in the

antitrust act, the definition of the word "person" in the Fair

Dealership Law does not refer to a "governmental agency," a

"municipal corporation," a "body politic," a "municipality," a

"county," a "city," a "town," a "school district," a "political

subdivision," or similar words referring to a governmental body.

¶98 In Wis. Stat. § 990.01(26), the legislature defines

"person" as including "all partnerships, associations and bodies

politic or corporate." This definition applies to the

interpretation of Wisconsin laws "unless such construction would

produce a result inconsistent with the manifest intent of the

legislature." The legislature has manifested its intent that

this definition of "person" in § 990.01(26) does not apply in

the instant case; the legislative special definition of "person"

in the Fair Dealership Law is inconsistent with the definition

of "person" in § 990.01(26). The special definition of "person"

in the Fair Dealership Law controls. It does not reference
"body politic."

¶99 This court has stated numerous times that the plain

meaning of the statutory text is the controlling interpretive

rule in this court. This court assumes that the legislature

says what it means and means what it says. Heritage Farms, Inc.

v. Markel Ins. Co., 2009 WI 27, ¶14 n.9, 316 Wis. 2d 47, 762

N.W.2d 652 (stating that "courts must presume that a legislature

says in a statute what it means and means in a statute what it
says there;" "every word excluded from a statute must be

10
 No. 2015AP2366.ssa

presumed to have been excluded for a purpose") (citations

omitted); Umansky v. ABC Ins. Co., 2009 WI 82, ¶102, 319

Wis. 2d 622, 769 N.W.2d 1 (Ziegler, J., dissenting) (same); See

also Ball v. Dist. No. 4, Area Bd. of Vocational, Technical &

Adult Educ., 117 Wis. 2d 529, 539, 345 N.W.2d 389 (1984)

("The . . . presumption is that the legislature chose its terms

carefully and precisely to express its meaning.").

¶100 Applying this interpretive rule in the instant case, I

conclude that the City of Madison does not fall within the

definition of the word "person" in the Dealership Law.

¶101 Fifth, the City is not a "corporation" in the

definition of "person" under the Fair Dealership Law. The word

"corporation" is not defined in the Fair Dealership Law.

¶102 The majority opinion proffers four cases to support

its conclusion that the City of Madison is a "corporation" under

the definition of "person" in the Wisconsin Fair Dealership Law.

None of the cases interprets the words "person" or "corporation"

in the context of the Fair Dealership Law.
¶103 Three of the four cases are not Wisconsin cases. Each

of these non-Wisconsin cases involved a different federal or

state statute, and in no statute did the statutory definition of

"corporation" include a local political subdivision. None of

these non-Wisconsin cases defines "person" as "person" is

defined in the Wisconsin Fair Dealership Law.

¶104 In each of these three cases the court examined the

definition of the word "corporation," the context of the
definition, the purpose of the statute, and the operation of the

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statute. See City of Lincoln v. Ricketts, 297 U.S. 373 (1936);

Hoye v. United States, 277 F.2d 116 (9th Cir. 1960); Madison

Cty. Fiscal Court v. Kentucky Labor Cabinet, 352 S.W.3d 572 (Ky.

2011). In each case the court concluded that the legislature

intended the word "corporation" to include the political

subdivision at issue.

¶105 That said, these cases neither support the majority

opinion's view that the word "corporation" in the Fair

Dealership Law includes the City of Madison nor undercut my

conclusion that the word "corporation" does not include the City

of Madison. Rather, these three non-Wisconsin cases stand for

the unremarkable proposition that in some instances, legislation

included a governmental entity within the word "corporation."

¶106 The majority opinion seems to champion the notion that

every time the word "corporation" is used in a statute it refers

to a municipal corporation. If this is the majority opinion's

claim, it is wrong. If, however, the majority opinion claims

that in some statutes the word "corporation" may be interpreted
to include a municipal corporation, this claim is supported by

the three non-Wisconsin cases.

¶107 Indisputably, the City of Madison is sometimes

referred to as a municipal corporation. But the question in the

instant case is whether a municipal corporation is a

"corporation" within the meaning of the word "corporation" in a

particular statute.

¶108 The particular statute in the instant case is the Fair
Dealership Law, and the question presented is: Does the word

12
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"corporation" in the definition of "person" in the Law include a

municipal corporation?

¶109 The fourth case that the majority opinion relies on,

City of Madison v. Hyland, Hall & Co., 73 Wis. 2d 364, 243

N.W.2d 422 (1976), relates to yet a different statute, the

Wisconsin antitrust act. In its discussion of Hyland, Hall &

Co., the majority opinion continues what appears to be a

misguided attempt to demonstrate that municipal corporations

fall within the word "corporation" every time a statute uses the

word "corporation."

¶110 In Hyland, Hall & Co., the City of Madison (in its

capacity as a City and school district) sued a private

corporation under the Wisconsin antitrust act for damages for

fixing bids on plumbing contracts. At the time, Wis. Stat.

§ 133.01 provided that "any . . . person, corporation,

copartnership, trustee or association" shall be liable "to any

person transacting or doing business in this state" for treble

damages for violating the Act. Section 133.04 of the act stated
that the word "person" "shall be deemed to include, besides

individuals, corporations, partnerships and associations

existing under or authorized by the laws of the United States,

any of the territories, of this or any other state or any other

state . . . ."

¶111 The defendants in Hyland, Hall & Co. argued that the

City of Madison was not a person within the definition of Wis.

Stat. § 133.04 and was not entitled to seek treble damages under

13
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the antitrust act. The court rebuffed the defendant's position

on several grounds.

¶112 Quoting Wis. Stat. § 66.019, the court noted that the

city is "a body corporate and politic, with powers and

privileges of a municipal corporation at common law and

conferred by these statutes." The court then read Wis. Stat.

§§ 133.04 and 990.01(26) together and concluded that the City

was a person (that is, a corporation existing under Wisconsin

law) that could be a plaintiff in an antitrust suit. At the

time Hyland, Hall & Co. was decided, § 990.01 stated that

"'person' includes all partnerships, associations and bodies

politic and corporate." The court's brief discussion of why

these two provisions were to be read together is, in my opinion,

garbled and hard to understand.

¶113 Perhaps that is why the Hyland, Hall & Co. decision

did not rely on this reasoning alone. The court went on to

explain in Hyland, Hall & Co. that the interpretation of the

Wisconsin antitrust act was governed by the interpretation of
the federal Sherman Act. Under the Sherman Act, the civil

remedy of treble damages had been afforded to a municipality.

Hyland, Hall & Co., 73 Wis. 2d at 375. Thus, the court

interpreted the Wisconsin statute as affording the City a civil

remedy of treble damages.

¶114 The Hyland, Hall & Co. court did not, however, decide

whether the City would be subject to a treble-damage judgment if

it were a defendant (rather than a plaintiff) in an antitrust
case. The court explicitly acknowledged that the words "person"

14
 No. 2015AP2366.ssa

and "corporation" in the antitrust act might have different

meanings depending on whether the City was a plaintiff or

defendant in an antitrust suit. Hyland, Hall & Co., 73 Wis. 2d

at 375.14 According to the court, "the right to sue for treble

damages and liability to suit are not necessarily reciprocal."

Hyland, Hall & Co., 73 Wis. 2d at 376.

¶115 Hyland, Hall & Co. is not on all fours and does not

govern the instant case. Hyland, Hall & Co. involves a

different statute and different definitions than those in the

instant case, and the antitrust Act and the Fair Dealership Law

serve different purposes. Hyland, Hall & Co. stands for the

unremarkable, well-accepted proposition that the words "person"

and "corporation" can have different meanings in different

statutes.

¶116 The persuasiveness of the four cases the majority

opinion cites is significantly undermined by the general rule

that the legislature can ascribe different meanings to the same

word in different statutes (and sometimes even in the same
statute).

14
"'Most words have different shades of meaning and
consequently may be variously construed, not only when they
occur in different statutes, but when used more than once in the
same statute or even in the same section.' . . . A given term in
the same statute may take on distinct characters from
association with distinct statutory objects calling for
different implementation strategies. The point is the same even
when the terms share a common statutory definition . . . ."
Envtl. Defense v. Duke Energy Corp., 549 U.S. 561, 574 (2007).

15
 No. 2015AP2366.ssa

¶117 I conclude that the City of Madison does not fall

within the definition of the word "corporation" in the

definition of "person" in the Fair Dealership Law.

¶118 Sixth, the City does not fall within the phrase "other

entity" in the definition of "person" under the Dealership Law.

The phrase "other entity" can signify a wide variety of

entities. There is no legislative history supporting the

conclusion that "other entities" in the Fair Dealership Law

refers to municipal corporations.

¶119 The ejusdem generis canon of interpretation, a

variation of the maxim noscitur a sociis, is helpful in

interpreting the phrase "other entity" in the instant case.15

¶120 Ejusdem generis applies when general words (for

example, "other entity" in the instant case) follow specific

words enumerated in a statutory list.16

¶121 The canon advises that the general words "other

entities" are interpreted to embrace only bodies similar in

nature to those enumerated by the preceding specific words. The
entities enumerated in Wis. Stat. § 135.02(6) are set forth in

terms of entities conducting business or commerce.

15
2A Singer, supra note 6, § 47:17, at 364-65. The
majority opinion refers to "noscitur a sociis."
16
2A Singer, supra note 6, § 47:17 at 364-65.

For further discussion of the ejusdem generis canon, see La
Barge v. State, 74 Wis. 2d 327, 332-34, 246 N.W.2d 794 (1976).

The doctrine of ejusdem generis is inapplicable if the text
has a clear, plain and reasonable meaning on its face. State v.
Peters, 2003 WI 88, ¶14, 263 Wis. 2d 475, 665 N.W.2d 171.

16
 No. 2015AP2366.ssa

¶122 The Golf Pros in effect assert that inasmuch as the

entities enumerated as "persons" conduct business and commerce,

the City of Madison can and should be bound by the Fair

Dealership Law when it engages in business and commerce as a de

facto private enterprise. The Golf Pros argue that the City

should be held to the same standard as any private golf course

operation under the Fair Dealership Law.

¶123 But a municipality, in contrast to a private entity,

does not engage in business or commerce for the purpose of

profit or revenue. A municipality's power is limited to

engaging in activities in furtherance of its powers and in

furtherance of the public interest. In the instant case, the

City has the express power to operate golf links. Although the

City of Madison operates golf links that might have belonged to

and been operated by a private entity, the City is not

necessarily treated under the law in the same way as a private

enterprise operating golf links.17

¶124 Applying the interpretive canon of ejusdem generis in
the instant case, I conclude that the City of Madison does not

fall within the definition of "other entity" and does not fall

within the definition of the word "person" in the Dealership

Law.

17
See Wisconsin Carry, Inc. v. City of Madison, 2017 WI 19,
373 Wis. 2d 543, 892 N.W.2d 233 (2017) (a city operating a bus
enterprise is not treated the same as a private enterprise
operating a bus service).

17
 No. 2015AP2366.ssa

¶125 Seventh, the majority opinion errs in relying on Wis.

Stat. § 135.07 and the canon expressio unius est exclusio

alterius (the expression of one thing excludes another) to

conclude that the City of Madison falls within the definition of

"person" within the Fair Dealership Law.18 See majority op.,

¶32.

¶126 In Wis. Stat. § 135.07, the legislature excluded three

specified entities from the application of the Fair Dealership

Law. This statute provides as follows:

135.07 Nonapplicability. This chapter does not
apply:

(1) To a dealership to which a motor vehicle dealer or
motor vehicle distributor or wholesaler as defined in
s. 218.0101 is a party in such capacity.

(2) To the insurance business.

(3) Where goods or services are marketed by a
dealership on a door to door basis.
¶127 The majority opinion asserts that when the legislature

expressly excludes something from a statute it does not intend

to exclude anything else.19 Majority op., ¶32. Thus, asserts

the majority opinion, because Wis. Stat. § 135.07 creates only

three exceptions to the Fair Dealership Law, the legislature

intended no other exceptions. Applying the canon to § 135.07,

18
The Golf Pros cite Caflisch v. Staum, 2000 WI App 113,
¶13, 235 Wis. 2d 210, 612 N.W.2d 385, for the expression of the
expressio unius est exclusio alterius canon: "When the
legislature provides a finite list of exceptions to a general
rule, [courts] presume that the legislature did not intend other
exceptions."
19
See 2A Singer, supra note 6, § 47:23, at 406-13.

18
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the majority opinion concludes that because the City is not

excepted as one of the three statutory exceptions, the City is

not excepted from the Fair Dealership Law.20

¶128 A canon may be overcome by a strong indication of

contrary legislative intent. And a contrary legislative intent

is strong in the instant case.

¶129 The three excepted entities clearly fall within the

statutory definition of "person" to which the Fair Dealership

Law is applicable: a motor vehicle dealership, the insurance

business, and door-to-door dealerships. This section excludes

three "persons" to which the Fair Dealership Law would otherwise

apply. Section 135.07 does not exclude these three entities

from the definition of "persons."

¶130 In contrast, the City of Madison does not fall within

the statutory definition of "person" to which the Fair

Dealership Law is applicable. Therefore the legislature did not

have to exclude the City of Madison from the application of the

Fair Dealership Law in Wis. Stat. § 135.07.
¶131 Accordingly, applying the text of Wis. Stat. § 135.07

and the canon, I conclude that the City of Madison does not fall

within the definition of "person" under the Fair Dealership Law.

¶132 Eighth, the legislative declaration that the Fair

Dealership Law be "liberally construed and applied to promote

its underlying remedial purposes and policies," Wis. Stat.

20
See Foster v. State, 70 Wis. 2d 12, 20, 233 N.W.2d 411
(1975) (this "statute stops with the single exception it
creates").

19
 No. 2015AP2366.ssa

§ 135.025(1), does not mean that the boundaries of coverage of

the Law are to be construed extensively.21 Moreover, the court

places heavy emphasis on the right of free contract, declaring

that "the right of free contract is a property right protected

by both state and federal constitutions and should not be

lightly impaired." Kania v. Airborne Freight Corp., 99

Wis. 2d 746, 774-75, 300 N.W.2d 63 (1981).

¶133 Ninth and finally. No case has been cited, and I

could not find any, applying a dealership statute to a

governmental entity.

¶134 More than 20 states apparently have statutes similar

to the Wisconsin Fair Dealership Law. Gary W. Leydig, Survey of

State Dealer Laws at 3 n.11,

http://www.leydiglaw.com/userfiles/file/survey%20of%20state%20de

aler%20laws.pdf. According to Leydig's survey, the Wisconsin

Fair Dealership Law, enacted in 1973, is "one of the oldest and

most litigated dealership statutes on the books." The Wisconsin

Fair Dealership Law has served as a reference for other states
in interpreting and applying their own statutes. See Leydig,

Survey of State Dealer Laws at 5.

21
This court has given a narrow interpretation of the
legislature's instruction to give a statute a "liberal
interpretation construction." See, e.g., DOJ v. DWD, 2015 WI
114, ¶¶30-34, 365 Wis. 2d 694, 875 N.W.2d 545.

The Fair Dealership Law's liberal construction rule does
not apply to whether the Law applies to a particular contract in
the first instance. See H. Phillips Co., Inc. v. Brown-Forman
Distillers Corp., 483 F. Supp. 1289, 1291 (W.D. Wis. 1980).

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¶135 Using WestLaw, I searched cases in many states and I

could find no reported cases in these jurisdictions that apply

the dealership statutes to a contract between a governmental

entity and a private entity. This lack of any cases is

persuasive that the dealership statutes are not applicable to

political subdivisions.

* * * *

¶136 The majority opinion forsakes the usual rules of

statutory interpretation in deciphering the meaning of the word

"person" in the Wisconsin Fair Dealership Law. Its analysis

neglects to address the relationship of the Dealership Law,

municipal constitutional and statutory home rule, and other

statutes governing governmental entities. Its weak analysis

inevitably leads the majority opinion to the wrong conclusion.

And I am concerned, as I stated previously, that the majority

opinion has not considered the consequences of its

interpretation of the word "person" and that it is establishing

a far-reaching precedent that will produce unreasonable
results.22

¶137 For the reasons I have set forth, I write in dissent.

I conclude that the City of Madison does not fall within the

definition of "person" for the purposes of Wis. Stat. chapter

135.

22
See Anderson v. Aul, 2015 WI 19, ¶114, 361 Wis. 2d 63,
862 N.W.2d 304 (Ziegler, J., concurring) (asserting that the
plain meaning analysis includes consideration of consequences of
alternative interpretations to avoid unreasonable results).

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¶138 Accordingly, I would affirm the judgment of the

circuit court and the decision of the court of appeals but on

the ground that the Fair Dealership Law does not apply to the

City of Madison.

¶139 I am authorized to state that Justice ANN WALSH

BRADLEY joins this opinion.

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