¶ 59. (concurring). Although I agree that the plaintiffs' failure to file a notice of claim with the City of Neenah pursuant to Wis. Stat. § 893.80(l)(b) (1993-94)1 does not bar the plaintiffs' action against the City, I cannot join Part II of the per curiam opinion for several reasons.
¶ 60. First and fundamentally, the holding of the per curiam opinion is not applicable to the facts of this case. The per curiam opinion holds that because the plaintiffs' complaint sought injunctive relief under Wis. Stat. § 30.294, no notice of claim need be filed with the City. In this case, however, the plaintiffs did not seek injunctive relief against the City; they sought a permanent injunction only against Minergy Corporation, a private corporation. Therefore, the holding of the per curiam opinion does not apply to this case.
¶ 61. Although claiming to adhere to DNR v. City of Waukesha, 184 Wis. 2d 178, 515 N.W.2d 888 (1994), the per curiam opinion essentially overrules the Wau*835kesha case by holding that Wis. Stat. § 893.80(l)(b) does not apply to claims for permanent injunctive relief brought under Wis. Stat. § 30.294. The bench and bar would be better served if the per curiam opinion would acknowledge forthrightly the effect of its holding, namely making § 893.80(l)(b) inapplicable to claims for injunctive relief against governmental bodies.
¶ 62. Second, if the Waukesha case is not overruled, I would hold that the plaintiffs' failure to file a notice of claim does not require dismissal of the plaintiffs' action against the City. The plaintiffs have asserted 42 U.S.C. § 1983 claims for relief against the City. Wisconsin Stat. § 893.80(l)(b) is not applicable to the § 1983 claims. See Felder v. Casey, 487 U.S. 131 (1988).
¶ 63. Third, I can discern no governing rule or principle in the court's creation of various exceptions to the notice of claim requirement. I believe our decisions regarding Wis. Stat. § 893.80(l)(b) leave attorneys and circuit courts uncertain about when a notice of claim must be filed, calling into question the status of cases that are pending in or already decided by the courts.
I
¶ 64. The per curiam opinion holds that because the plaintiffs sought an injunction under Wis. Stat. § 30.294 against Minergy Corporation, they need not file a notice of claim with the City.2 The underlying rationale for this holding is that a request for an injunction under § 30.294 requires immediate court action and there is not enough time to file a notice of *836claim and wait the prescribed 120 days for the City to disallow the claim. See per curiam op. at 823.
¶ 65. The holding of the per curiam opinion is not applicable to the facts of this case. The plaintiffs in this case did not seek an injunction against the City. They sought an injunction against another defendant to the action, Minergy Corporation, to halt Minergy Corporation's construction of a glass aggregate plant. The fact that the plaintiffs sought injunctive relief against a defendant other than the City does not excuse the plaintiffs from filing a notice of claim with the City.
¶ 66. In addition, the rationale of the per curiam opinion does not fit the facts of this case and directly contradicts the Waukesha case. The per curiam opinion reasons that because Wis. Stat. § 30.294 expressly allows the plaintiffs to seek "immediate" injunctive relief to prevent injury, the general statute, Wis. Stat. § 893.80(l)(b), frustrates the plaintiffs' specific right to "immediate" injunctive relief under § 30.294. Per curiam op. at 823.
¶ 67. The per curiam opinion relies on State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 547 N.W.2d 587 (1996), which held that Wis. Stat. § 893.80(l)(b) does not apply to the open records law. The open records law requires that the record custodian fill or deny a request for a record "as soon as practicable and without delay." Wis. Stat. § 19.35(4). As Auchinleck and the per curiam opinion make clear, time is of the essence in the open records law, which sets forth a detailed procedure to govern both the requester in obtaining a record and the custodian of the record in granting or denying the request. The focus of the open records law is to facilitate speedy access to records.
*837¶ 68. Unlike the open records law, Wis. Stat. § 30.294 does not set forth a procedure for injunctive relief or a specific enforcement mechanism. Section 30.294 merely provides that violations of chapter 30 "may be prohibited by injunction and may be abated by legal action." Although the per curiam opinion asserts that § 30.294 provides a specific enforcement mechanism, the statute in fact does not. Injunctions brought under § 30.294, like injunctions generally, are governed by ch. 813, which sets forth mechanisms for injunctive relief.
¶ 69. Even if Wis. Stat. § 30.294 were silent about injunctive relief, a claimant could still seek an injunction to abate a public nuisance. A statute need not specify that injunctive relief is available for a claimant to seek an injunction. See State v. Seigel, 163 Wis. 2d 871, 892, 472 N.W.2d 584 (Ct. App. 1991). "Wisconsin courts may enjoin public nuisances pursuant to their vested equitable powers." Seigel, 163 Wis. 2d at 892-93; see also State v. Weller, 109 Wis. 2d 665, 675, 327 N.W.2d 172 (Ct. App. 1983). Thus contrary to the per curiam opinion's assertion, § 30.294 provides no specific enforcement mechanism.
¶ 70. Furthermore, the per curiam opinion repeatedly equates injunctive relief with immediacy. According to the per curiam opinion, in all actions seeking an injunction under Wis. Stat. § 30.294, time is of the essence, and an injunction therefore is inconsistent with the notice of claim and the 120-day waiting period contained in Wis. Stat. § 893.80(l)(b). See per curiam op. at 823.
¶ 71. The per curiam opinion obfuscates the differences between a preliminary injunction and a permanent injunction. A preliminary injunction is a pretrial remedy that is granted to preserve the status *838quo and to prevent harm while an action is pending. A permanent injunction is granted upon a final decision in the case, which may come many months or years after an action is brought.
¶ 72. Waukesha made clear that unless preliminary injunctive relief is requested, a notice of claim must be filed with the defendant city. The Waukesha court held that Wis. Stat. § 893.80(l)(b) applies to an action against a city for injunctive relief. The Waukesha court reasoned that because no preliminary injunctive relief was requested in that case, the claimant had sufficient time to comply with Wis. Stat. § 893.80(l)(b). See Waukesha, 184 Wis. 2d at 193 n.10.
¶ 73. In this case the plaintiffs did not seek a preliminary injunction. Moreover, the plaintiffs waited nearly six months (about 165 days) after the lease was signed by the City and Minergy Corporation before bringing an action against the City and the other defendants.3 The lease authorized Minergy Corporation to construct and operate a glass aggregate plant. The plaintiffs thus were on notice that construction of the proposed Minergy facility had been authorized by the City. The plaintiffs had plenty of time to seek a preliminary injunction. Having waited nearly six months to bring their action, the plaintiffs clearly had sufficient time to comply with the notice of claim statute. If the per curiam opinion were adhering to Waukesha as it purports to do, it would have to conclude that the plaintiffs in this case had adequate time to file a notice of claim and to wait 120 days for the City to disallow the claim.
*839¶ 74. According to the per curiam opinion, the plaintiffs who sought an injunction in this case against a private corporation for allegedly violating navigable waters law need not have filed a notice of claim with the City. By contrast, the claimant in Waukesha (the state Department of Natural Resources) that sought an injunction against the city of Waukesha for allegedly violating drinking water standards was required to file a notice of claim. The per curiam opinion provides no basis for this distinction.
¶ 75. Two additional problems are raised in the per curiam opinion. The per curiam opinion errs in its rationale that "the specific procedures set forth in Wis. Stat. § 30.294 'take precedence over the general notice provisions of § 893.80.'" Per curiam op. at 823-24. The per curiam opinion misapplies this rule of statutory construction. The rule that the specific statute controls applies only where hoth statutes relate to the same subject matter. See Schlosser v. Allis-Chalmers Corp., 65 Wis. 2d 153, 161, 222 N.W.2d 156 (1974); Frostman v. State Farm Mut. Ins. Co., 171 Wis. 2d 138, 144, 491 N.W.2d 100 (Ct. App. 1992). The per curiam opinion does not explain why these two statutes relate to the same subject matter or why § 30.294 is the more specific statute. Furthermore, Wis. Stat. § 893.80 has been interpreted as directing that when a claim against a governmental body is based on another statute, the notice provisions of § 893.80(1) nevertheless apply. See Waukesha, 184 Wis. 2d at 192-93.4
*840¶ 76. Finally, the per curiam opinion errs in relying on the fact that the plaintiffs' suit was brought in the name of the State. The plaintiffs in this case alleged in their complaint that they were bringing suit as individuals and in the name of the State. The plaintiffs' right to sue under Wis. Stat. § 30.294 is not contingent on their bringing suit in the name of the State. Section 30.294 expressly states, "Every violation of this chapter. . .may be abated by legal action brought by any person." Section 30.294 makes no reference to the State and in no way limits suits to those brought by individuals in the name of the State.
¶ 77. In addition, the per curiam opinion's reasoning defies this court's precedent. The Waukesha court held that the Department of Natural Resources, the state regulatory agency entrusted with enforcing state environmental laws, was not exempt from the provisions of Wis. Stat. § 893.80(l)(b). The Waukesha court explained, "Our holding today, that the state must comply with sec. 893.80(1), applies to all actions that are covered by the statute — not just DNR enforcement proceedings." Waukesha, 184 Wis. 2d at 196. Under the per curiam opinion's reasoning the State is not exempt from complying with § 893.80(l)(b) but citizens suing in the name of the State are.
¶ 78. In short, the holding and rationale of the per curiam opinion do not apply to the facts of this case, and directly contradict Waukesha. The plaintiffs brought an injunction against Minergy Corporation, *841not the City. The plaintiffs sought a permanent injunction, not a preliminary injunction, and thus had adequate time to file a notice of claim. Therefore, the plaintiffs were required under Waukesha to comply with Wis. Stat. § 893.80(l)(b).
¶ 79. The per curiam opinion carves out an exception to Wis. Stat. § 893.80(l)(b) that is not supported by either the facts or the law. The per curiam opinion asserts that the exception is confined to "the unique circumstances of this case." Per curiam op. at 828. The circumstances of seeking an injunction under Wis. Stat. § 30.294, however, are not unique. Several statutes, as well as the common law, expressly recognize the right of a person to seek an injunction, including one to abate a public nuisance.5
¶ 80. The per curiam opinion opens the door for many claimants to argue for an exemption from the provisions of Wis. Stat. § 893.80(l)(b). Under the per curiam opinion, a claimant need only insert a request for injunctive relief in a complaint to be exempt from the notice of claim provision. According to the per curiam opinion, a claimant need not even pursue or win on the request for injunctive relief.
¶ 81. The per curiam opinion's holding in effect overrules Waukesha, significantly undercuts City of Racine v. Waste Facility Siting Bd., 216 Wis. 2d 616, 575 N.W.2d 712 (1998),6 and returns the case law to pre-Waukesha decisions that required a notice of claim in suits for money damages, but not for injunctive relief.
*842¶ 82. If the per curiam opinion forthrightly held that Wis. Stat. § 893.80(l)(b) does not apply to injunctive relief, I would join the opinion. Excluding injunctions from the application of § 893.80(l)(b) comports with the purpose and operation of the statute.
II
¶ 83. If I were to adhere to Waukesha, I would hold that the plaintiffs' action against the City should not be dismissed. The plaintiffs have asserted § 1983 claims based on the same factual allegations giving rise to the state law claims and premised on violations of the state public trust doctrine. See per curiam op. at 820-21. Dismissing the plaintiffs' § 1983 claims for failure to file a notice of claim would be contrary to the principles articulated in Felder, 487 U.S. 131.
¶ 84. In Felder the United States Supreme Court stated that "enforcement of the notice-of-claim statute in § 1983 actions brought in state court so interferes with and frustrates the substantive right Congress created that, under the Supremacy Clause, it must yield to the federal interest." Felder, 487 U.S. at 151.
III
¶ 85. Since the court held in the 1994 Waukesha decision that Wis. Stat. § 893.80(l)(b) "applies in all actions, not just in tort actions," Waukesha, 184 Wis. 2d at 183, 202,7 this court has decided three other cases in which a claimant's failure to comply with the notice of *843claim requirement has been challenged.8 In Racine, 216 Wis. 2d at 630, the court strictly adhered to Waukesha. The Racine court stated that it had "no alternative under [§ 893.80(l)(b)] and case law" but to stringently apply § 893.80(l)(b) to all actions as "our hands are tied by the plain language of § 893.80(l)(b)." Racine, 216 Wis. 2d at 628-29.
¶ 86. However, in two cases, including this case, the court carved out exceptions to Wis. Stat. § 893.80(l)(b) and the "all actions" language of Waukesha.9
¶ 87. What is the collective result of these four decisions? In short, "all actions" means all actions except when the court says otherwise. I cannot discern what governing principle or rule guides the court in recognizing exceptions to the notice of claim statute, and the per curiam opinion offers no guidance for identifying other potential exceptions to the statute.
¶ 88. The importance of clarifying when a notice of claim must be filed under Wis. Stat. § 893.80(l)(b) cannot be overstated. Many cases in Wisconsin courts involve lawsuits in which governmental bodies or their officers, agents or employees are defendants. Between September 1997 and June 1998, the defendants in about one fourth of the cases decided by this court were governmental bodies or their officers, agents or employees. In some of these cases a notice of claim was *844filed.10 In other cases, according to the complaint, no notice of claim was apparently filed.11
¶ 89. The court of appeals has held that a claimant's failure to comply with Wis. Stat. § 893.80(l)(b) deprives a court of the power to proceed. See Figgs v. City of Milwaukee, 116 Wis. 2d 281, 286-87, 342 N.W.2d 254 (Ct. App. 1983), rev'd on other grounds, 121 Wis. 2d 44, 357 N.W.2d 548 (1984).12 In reviewing the court of appeals decision in Figgs, this court concluded that the notice of claim filed was sufficient and thus did not reach the question of whether noncompliance with the notice of claim statute would deprive the court of the power to proceed. See Figgs, 121 Wis. 2d at 51. This court stated, "If the court of appeals erred in respect to the sufficiency of the claim, as we conclude it did, we need not, for the purpose of deciding this case, explore whether an insufficient notice would deprive the court of subject matter jurisdiction and render futile any assertions by a plaintiff of estoppel or laches." Figgs, 121 Wis. 2d at 51.
¶ 90. The per curiam opinion errs in two respects. First, it errs when it states that this court in Figgs reached and decided the question whether noncompliance with the notice of claims statute deprives a *845circuit court of the power to proceed. See per curiam op. at 825-26. The Figgs court did not decide this issue.
¶ 91. Second, the per curiam misunderstands the language it quotes from a footnote in Figgs. See per curiam op. at 825-26. The Figgs footnote merely explains the difference between subject matter jurisdiction and a circuit court's lack of power to proceed when a party has failed to comply with statutory requirements. According to Figgs, a circuit court always has subject matter jurisdiction but may not have the competence, that is, the power to proceed, if the statutory requirements are not met. For application of this rule, see e.g., Sallie T. v. Milwaukee County Dep't of Health & Soc. Serv., 219 Wis. 2d 296, 303-04, 581 N.W.2d 182 (1998) (parties' failure to extend a dispositional order resulted in the circuit court, which had subject matter jurisdiction, losing the power, that is the competance, to afford relief to the parties).13
¶ 92. Several past cases have construed compliance with the precursor statutes to Wis. Stat. § 893.80(l)(b) to be a condition precedent to the com*846mencement14 or maintenance15 of an action, and have treated failure to file a notice of claim as fatal.16 The past cases are not readily reconcilable on this issue.
¶ 93. In cases involving Wis. Stat. § 893.82, the notice of claim statute applicable to suits against the state or state employees, courts have concluded that failure to give notice is jurisdictional and may not be waived by the defendant's failure to plead noncompliance as an affirmative defense.17
¶ 94. It is regrettable that the per curiam opinion has not taken the opportunity today to articulate the *847court's governing principle or rule in applying Wis. Stat. § 893.80(l)(b). The court's unpredictable application of § 893.80(l)(b) leaves attorneys and courts guessing about when a notice of claim must be filed and calls into question the status of cases now pending or already decided by the courts.
¶ 95. For the foregoing reasons, I write separately.
¶ 96. I am authorized to state that Justice Janine P. Geske and Justice Ann Walsh Bradley join this concurrence.All references to the Wisconsin statutes are to the 1993 — 94 version unless otherwise indicated.
The per curiam opinion reasons that "the fact that enforcement of the public trust doctrine can be achieved by injunction is significant to our determination of the applicability of Wis. Stat. § 893.80(l)(b)." Per curiam op. at 822.
The City of Neenah and Minergy Corporation entered into the lease on December 6, 1995. The plaintiffs did not file their action until May 22,1996.
The Waukesha court concluded that Wis. Stat. § 893.80(5) "only directs that when a claim is based on another statute, the damage limitations of sec. 893.80(3) do not apply. Section 893.80(5) does not say that the notice provisions of sec. 893.80 (1) do not apply." Waukesha, 184 Wis. 2d at 192-93.
*840Wisconsin Stat. § 893.80(5) provides in pertinent part: "When rights or remedies are provided by any other statute against any political corporation, governmental subdivision or agency or any officer, official, agent or employe thereof for injury, damage or death, such statute shall apply and the limitations in sub. (3) shall be inapplicable."
See, e.g., Wis. Stat. §§ 823.01; 157.70(8)(a); and 66.032(7) (b); see also Wis. Stat. ch. 813 (governing injunctions generally).
The court in City of Racine v. Waste Facility Siting Bd., 216 Wis. 2d 616, 622, 575 N.W.2d 712 (1998), relied heavily on Waukesha.
The Waukesha court stated that Wis. Stat. § 893.80(l)(b) explicitly exempts only two causes of action from the notice of claim requirement: medical malpractice actions and actions for the negligent inspection of property. See Waukesha, 184 Wis. 2d at 190 n.7.
See State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 547 N.W.2d 587 (1996); City of Racine v. Waste Facility Siting Bd., 216 Wis. 2d 616, 575 N.W.2d 712 (1998); and the present case, Gillen v. City of Neenah, 219 Wis. 2d 807, 580 N.W.2d 628 (1998).
See Auchinleck, 200 Wis. 2d at 597; Gillen, op. at 827.
See, e.g., Morris v. Juneau County, 219 Wis. 2d 544, 579 N.W.2d 690 (1998); Vivid v. Fiedler, 219 Wis. 2d 765, 580 N.W.2d 644 (1998), 1998).
See, e.g., Borland v. Eau Claire County, 216 Wis. 2d 559, 575 N.W.2d 691 (1998); Sullivan v. Waukesha County, 218 Wis. 2d 458, 578 N.W.2d 596 (1998).
This court has not yet determined the status of an issue decided in a published court of appeals opinion when the court of appeals decision is subsequently reversed or affirmed by this court on other grounds.
In recent years this court has used the term "competence" or "power to proceed" instead of the phrase "subject matter jurisdiction." See Miller Brewing Co. v. LIRC, 173 Wis. 2d 700, 705-06 n.1, 495 N.W.2d 660 (1993); In Interest of B.J.N. and H.M.N., 162 Wis. 2d 635, 654 n.15, 656-58, 469 N.W.2d 845 (1991); Figgs v. City of Milwaukee, 121 Wis. 2d 44, 51 — 52 n.6, 357 N.W.2d 548 (1984); Mueller v. Brunn, 105 Wis. 2d 171, 176, 313 N.W.2d 790 (1982); In Interest of L.M.C., 146 Wis. 2d 377, 390-92, 430 N.W.2d 352 (Ct. App. 1988).
The critical focus, however, is not on the terminology used to describe a court's power to proceed, but on the effect of noncompliance with a statutory requirement on the court's power to proceed. See Miller Brewing Co., 173 Wis. 2d at 706 n.1; B.J.N., 162 Wis. 2d at 656-57; L.M.C., 146 Wis. 2d at 390-92.
See, e.g., Foreway Express, Inc. v. Hilbert, 32 Wis. 2d 371, 372, 145 N.W.2d 668 (1966); Seifert v. School Dist., 235 Wis. 489, 497, 292 N.W. 286 (1940); Maynard v. DeVries, 224 Wis. 224, 228, 272 N.W. 27 (1937).
See, e.g., Schwartz v. City of Milwaukee, 43 Wis. 2d 119, 128, 168 N.W.2d 107 (1969).
See Sambs v. Nowak, 47 Wis. 2d 158, 167, 177 N.W.2d 144 (1970)(refusing to apply the estoppel doctrine to bar a governmental body from asserting defense of noncompliance with the notice of claim statute). But see Fritsch v. St. Croix Cent. Sch. Dist., 183 Wis. 2d 336, 344, 515 N.W.2d 328 (Ct. App. 1994) (applying equitable estoppel to bar a governmental body from using noncompliance with the notice of claim statute as a defense).
See, e.g., Ibrahim v. Samore, 118 Wis. 2d 720, 726, 348 N.W.2d 554 (1984); Oney v. Schrauth, 197 Wis. 2d 891, 904, 541 N.W.2d 229 (Ct. App. 1995); J.F. Ahern Co. v. Wisconsin State Bldg. Comm'n, 114 Wis. 2d 69, 83, 336 N.W.2d 679 (Ct. App. 1983).
Although Wis. Stat. § 893.80(l)(b), the municipal notice of claim statute, and Wis. Stat. § 893.82(3), the state notice of claim statute, have similar purposes, the statutes have significant differences. See Lewis v. Sullivan, 188 Wis. 2d 157, 169, 524 N.W.2d 630 (1994)(the notice provision of § 893.82(3) does not apply to injunctive and declaratory relief).