Dawson v. Town of Jackson

SHIRLEY S. ABRAHAMSON, C.J.

¶ 79. {dissenting). I address two issues: certiorari as the prescribed method of judicial review and aggregating the votes of two town boards.

¶ 80. First, I conclude that the prescribed method of judicial review by certiorari under Wis. Stat. §§ 82.15 and 68.13 precludes the Dawsons from bringing a declaratory judgment action under § 806.04.

*349¶ 81. Second, although I conclude that the Dawsons are precluded from bringing this declaratory judgment action, I address the majority's interpretation and application of Wis. Stat. § 81.21(2). I reach the same conclusion as the circuit court and court of appeals. The votes of the town board should be aggregated.

I

¶ 82. Wisconsin Stat. §§ 82.15 and 68.13(1) authorize a party to a proceeding relating to highway orders to seek certiorari review in the circuit court within 30 days of receipt of the final determination. See majority op., ¶¶ 64-66.

¶ 83. Section 82.15 provides that "[a]ny person aggrieved by a highway order, or a refusal to issue such an order, may seek judicial review under s. 68.13."

¶ 84. Section 68.13(1) establishes judicial review for a broad range of decisions of municipal authorities: "Any party to a proceeding resulting in a final determination may seek review thereof by certiorari within 30 days of receipt of the final determination. The court may affirm or reverse the final determination, or remand to the decision maker for further proceedings consistent with the court's decision."

¶ 85. The Dawsons failed to seek certiorari review within 30 days of receipt of the final determination.

¶ 86. Rather, the Dawsons sought review of the highway order through a declaratory judgment lawsuit filed six months later.

¶ 87. I agree with the majority opinion that "where a method of review is prescribed by statute, 'that prescribed method is exclusive,'" majority op., ¶ 69, and that the Dawsons "should have utilized certiorari review," majority op., ¶ 72.

*350¶ 88. I also agree with the majority opinion that there are certain exceptions to the exclusivity of a prescribed statutory method of certiorari judicial review. For example, the statutorily prescribed method of certiorari judicial review need not be used when it is not plain, speedy, and adequate. State ex rel. First Nat'l Bank v. M&I Peoples Bank, 82 Wis. 2d 529, 543, 263 N.W.2d 196 (1978). The statutorily prescribed method of certiorari judicial review need not be used when a party shows that the statutory method is inadequate to resolve the issue presented or is inadequate to effect the remedy sought. Majority op., ¶ 73.1

¶ 89. The case law is clear: "in all but exceptional cases," the statutorily prescribed certiorari judicial review is the exclusive remedy. State ex rel. First Nat'l Bank v. M&I Peoples Bank, 82 Wis. 2d 529, 542, 263 N.W.2d 196 (1978).

¶ 90. Thus the question becomes whether this case is an exceptional case and in what way. The majority opinion does not claim that this is an exceptional case. Nor do the Dawsons. Nor do I.

¶ 91. Nevertheless, the majority opinion concludes that this court should use its discretion to reach the merits of this highway case. Majority op., ¶ 75 & n.ll. I read the opinion as not allowing a circuit court to exercise its discretion to reach the merits when a party has failed to adhere in highway cases to the statutory method of certiorari review. I do not know whether the court of appeals may exercise its discretion. I read the majority as limiting to highway cases the exercise of its discretion to reach the merits when the statutory *351method of certiorari review has not been met: "this case should not be interpreted as a green light to evade the legislature's prescribed method of certiorari review for matters involving highway orders". Majority op., ¶ 75.

¶ 92. I am concerned that the majority opinion may unnecessarily raise procedural questions for future litigants and the courts. I would not abandon our precedent that a court should adhere to the statutorily prescribed method of certiorari judicial review except in exceptional circumstances.

¶ 93. I conclude that the declaratory judgment relief the Dawsons seek should be denied. Certiorari review is prescribed by statute. No exception applies in the present case.

¶ 94. Nevertheless, because I disagree with the majority opinion's interpretation of Wis. Stat. § 81.21(2), I will briefly comment on that holding of the majority opinion.

II

¶ 95. I conclude that "acting together" to discontinue a town-line highway under Wis. Stat. § 82.21(2) requires an aggregate vote count of the combined memberships of the affected governing bodies. As does the majority opinion, I will (A) discuss statutory interpretation, including analyzing the statutory text and the text in context; (B) examine the statutory history; and (C) reflect on public policy considerations.

A

¶ 96. Wisconsin Stat. § 82.21(2), the statute at issue, provides as follows: "Upon completion of the requirements of sub. (1), the governing bodies of the *352municipalities, acting together, shall proceed under ss. 82.10 to 82.13." Sections 82.10 to 82.13 set forth procedural steps, including the initiation of procedures, notice requirements, lis pendens, examination of the highway, the code of ethics for participants, time of determination, and recording of determination.

¶ 97. Curiously, the way the majority opinion interprets "acting together," the town boards are always acting separately.2 The majority reads "acting together" *353completely out of the statute. What could the legislature have meant by the phrase? It means nothing, says the majority.

¶ 98. The majority opinion gives nary an example of when the two boards act together. Each board does everything separately, according to the majority opinion, and thus either municipality has ultimate veto power over the other. The majority suggests this reading avoids "absurd or unreasonable results." Majority op., ¶ 26.

¶ 99. As I read the statute, the phrase "acting together" means the boards are to act as a single group. This interpretation gives a common meaning to the phrase "acting together": doing something in a single group.

¶ 100. The majority points to the notice requirements as an example of a procedure that must be accomplished separately. Nothing in the notice requirements, however, suggests that those procedures cannot be accomplished through a collaborative effort of the boards of the affected municipalities.

¶ 101. Contrary to the majority's assertions, the boards can produce a notice that encompasses the statutory requirements by "acting together" as a single group. "Acting together," the boards can 1) determine the time and place where they will meet to consider the application or resolution; 2) create a legal description of the highway; and 3) set forth a scale map.

¶ 102. The only difference between the situation in which one board must produce a notice that encom*354passes the statutory requirements and the situation in which two or more boards must do the same is that the boards "acting together" must ensure the notice requirements of each municipality are met. That a notice must be published in two different newspapers does not restrict the town boards from acting together to achieve that result. The two boards acting together can decide on a date of a hearing and the wording of the notice. And the boards, acting together, can then agree that, under Wis. Stat. § 82.10(3)-(4), the notice is placed in the appropriate media outlet prescribed for each municipality. See Wis. Stat. § 985.02 (relating to notice requirements).

¶ 103. Thus the boards would be acting together to fulfill the same procedural requirements that can be effectuated separately. I conclude that the applicable procedural steps set forth in Wis. Stat. §§ 82.10 to 82.13 are consistent with the concept that the boards of the affected municipalities will act together as a single group.

¶ 104. In sum, the very words "acting together" and their context in the statute support the conclusion that the boards act together to vote and the votes are aggregated.

¶ 105. I agree with the circuit court. It explained that "[i]f the legislature had meant to authorize an individual town to block an attempt to lay out, alter or discontinue a highway on a town line they could have done so simply by requiring approval by both towns. A particular procedure would not have been necessary. Separate approval is the opposite of acting together."

B

¶ 106. I now turn to the statutory history and case law that the majority opinion sets forth as "legis*355lative history." Before the reader gets carried away in the details of this history, the reader should be warned there is no smoking gun here, concealed or visible. All the majority can do is quote a passage here and there from a statute or a case and then say it reads the passage in a certain way to support its conclusion. The majority opinion's bottom line is, and can only be, that there is conflicting evidence in the "legislative history." I agree that the "legislative history" is mixed and inconclusive. It can be interpreted to support either the majority opinion or this dissent.

C

¶ 107. Finally, I turn to public policy considerations. Through Wis. Stat. § 82.21(2), the legislature has established a process to follow in laying out, altering, or discontinuing town-line roads lying on or across town and municipal lines. If the municipalities agree on what is to be done with the highway, the interpretation of "acting together," as it affects vote counting, does not matter. Indeed, if the communities agree, the statute is unnecessary. Each community could collaborate and follow Wis. Stat. §§ 82.10 to 82.13 separately and get the desired result.

¶ 108. The value of Wis. Stat. § 82.21(2) is that it sets up a procedure to settle disagreements between towns. Aggregating votes is more apt to resolve a dispute than taking separate votes.

¶ 109. Anytime towns disagree, the status quo is maintained under the majority's interpretation. That interpretation has no legislative purpose, as it merely affirms what would happen without a statute. By aggregating votes, the statute has a purpose — it may resolve a stalemate when towns disagree.

*356¶ 110. The majority points out that municipalities may have a different number of representatives voting for or against a proposal, citing that as a reason to require independent voting. The legislature knew that towns and municipalities may have different numbers of representatives.

¶ 111. The majority opposes the possibility that a larger municipality may have more control than a smaller municipality. The majority does not think this result is good policy and so avoids that result by interpreting the statute to avoid the impact of size discrepancies between municipalities. But it is not within the judiciary's authority to sit in judgment of the wisdom of a statute. A court must interpret the statute, not rewrite it.

¶ 112. These policy determinations Eire appropriately the legislature's to make. I would encourage the legislature to re-examine this statutory language and unambiguously state its intentions regarding the statute.3

*357¶ 113. After examining the text of Wis. Stat. § 82.21(2) and its context, the "legislative history," and the public policy, I conclude, as did the circuit court and court of appeals, that the votes are to be aggregated.

¶ 114. For the reasons set forth, I dissent.

The circuit court and court of appeals concluded that certiorari was inadequate to effect the remedy the Dawsons sought and allowed the Dawsons to proceed by declaratory judgment. The majority opinion does not take this tack.

The majority fails to recognize that acting together does not mean sacrificing individuality and individuality does not mean sacrificing acting together. The majority opinion calls to mind a poem by Khalil Gibran that I am often asked to read when I officiate at weddings. Gibran eloquently describes how marriage requires partners to act together, yet remain separate throughout their marriage.

"On Marriage"

(The Prophet, 1923)

You were bom together, and together you shall be forevermore.

You shall be together when white wings of death scatter your days.

Aye, you shall be together even in the silent memory of God.

But let there be spaces in your togetherness,

And let the winds of the heavens dance between you.

Love one another, but make not a bond of love:

Let it rather be a moving sea between the shores of your souls.

Pill each other's cup but drink not from one cup.

Give one another of your bread but eat not from the same loaf.

Sing and dance together and be joyous, but let each one of you be alone,

Even as the strings of a lute are alone though they quiver with the same music.

Give your hearts, but not into each other's keeping.

*353For only the hand of Life can contain your hearts.

And stand together yet not too near together;

For the pillars of the temple stand apart,

And the oak tree and the cypress grow not in each other's shadow.

See Wis. Stat. § 13.92:

(2) Duties of the chief. The chief of the legislative reference bureau shall:

(L) In cooperation with the law revision committee, systematically examine and identify for revision by the legislature the statutes and session laws to eliminate defects, anachronisms, conflicts, ambiguities, and unconstitutional or obsolete provisions. The chief shall prepare and, at each session of the legislature, present to the law revision committee bills that eliminate identified defects, anachronisms, conflicts, ambiguities, and unconstitutional or obsolete provisions. These bills may include minor substantive changes in the statutes and session laws necessary to accomplish the purposes of this paragraph. The chief may resubmit to the law revision committee in subsequent sessions of the legislature any bill prepared under this paragraph that was not enacted.