¶ 22. (dissenting). I dissent because I conclude that Wis. Stat. § 893.80(l)(b) (1993-94)1 has no application to RATE'S counterclaim in this case.2
*631¶ 23. Let me summarize the undisputed procedural facts to put this case in the proper context. The procedural facts are as follows:
¶ 24. (1) The City of Racine brought an action in circuit court seeking review of, among other decisions, the Waste Facility Siting Board's determination to disqualify four City representatives from sitting on the local siting committee.
¶ 25. (2) RATE intervened in the City's action and filed a counterclaim against the City, seeking a declaratory judgment to disqualify the City's representatives from sitting on the local siting committee.
¶ 26. (3) The Town of Mt. Pleasant also intervened in the City's action, seeking the same relief as that sought by RATE, namely a declaratory judgment affirming the Board's disqualification of the City's representatives from the local siting committee.3
¶ 27. (4) The circuit court found that RATE'S counterclaim for declaratory judgment sought in essence the same relief as the Town's counterclaim for declaratory judgment.
¶ 28. (5) The City sought summary judgment against RATE and the Town, arguing that each had failed to comply with the notice of claims statute, Wis. Stat. § 893.80(l)(b). The City later conceded that the Town had presented a notice of claim, and the circuit court denied the City's summary judgment motion against the Town.
¶ 29. (6) The circuit court granted the summary judgment motion against RATE for RATE'S failure to comply with the notice of claims statute.
*632¶ 30. I conclude from the procedural history that Wis. Stat. § 893.80(l)(b) has no application in this case. I base this conclusion on (1) the text of the statute; (2) the legislative history of the statute; (3) the legislative purpose of the statute; and (4) case law interpreting the statute.
¶31. First, the text of Wis. Stat. § 893.80(l)(b) does not support the majority's holding. On examination of the text we see that § 893.80(1) does not expressly apply to counterclaims. Section 893.80(1) governs an "action. . .brought or maintained against any. . .governmental subdivision. . .upon a claim or cause of action" (emphasis added). The majority opinion studies the word "claim," not "action."4
¶ 32. In using the words "action" and "claim" in Wis. Stat. §§ 893.80(l)(a) and 893.80(l)(b), the legislature must have intended the words to have different meanings. The use of the word "action" in § 893.80(1) is similar to the use of the word not the "action" in chapters 801-847, Wisconsin civil procedure statutes. The *633word "action" typically refers to the plaintiffs commencement of a proceeding. In contrast, the word "counterclaim," when used in the statutes, typically refers to pleadings by a defendant in an action brought or maintained by a plaintiff. See, e.g., Wis. Stat. § 802.07 (counterclaims are claims brought by a defendant against a plaintiff); § 803.04(1) (permissive joinder of parties occurs in an already pending action); § 803.09 (intervention occurs in an already pending action).
¶ 33. In several statutes the word "action" is distinguished from the word "counterclaim." See, e.g., Wis. Stat. § 814.025 (governing costs for frivolous actions by plaintiff and frivolous counterclaims by defendant); § 893.14 (distinguishing between period of limitation for commencement of actions by plaintiff and period of limitation for counterclaims).
¶ 34. Perhaps most significant is the statute governing notice of claims against the state. The state notice of claims statute, Wis. Stat. § 893.82, defines a civil action to include a counterclaim.5 Section 893.80(l)(b), by contrast, does not define "action" to include a counterclaim.
¶ 35. The majority opinion asserts that the plain language of Wis. Stat. § 893.80(1) ties its hands. See majority op. at 628-29. But the majority opinion has failed to consider the plain language of § 893.80(1) and instead falls back on DNR v. City of Waukesha, 184 Wis. 2d 178, 191, 515 N.W.2d 888 (1994), in which the court stated that § 893.80(l)(b) "applies to all causes of action, not just those in tort and not just those for money damages." This language deviates from, rather *634than tracks, the statutory language of § 893.80(1). Section 893.80(1) does not use the phrase "all causes of action"; rather it states that "no action may be brought or maintained" against a municipality.
¶ 36. In addition to overlooking the statute's use of the word "action," the majority opinion overlooks that both Wis. Stat. § 893.80(l)(a) and § 893.80(l)(b) refer to the governmental subdivision as the defendant. Section 893.80(l)(a) states that failure to give notice of injury does not bar action if the governmental subdivision has actual notice of the claim and the claimant shows that the failure to give notice "has not been prejudicial to the defendant" governmental subdivision. Section 893.80(l)(b) states that "[n]o action on a claim against any defendant. . .subdivision or agency.. .may be brought after 6 months from the date of service of the notice" (emphasis added).
¶ 37. In sum, the majority opinion fails .to focus on the textual questions presented: Does a counterclaim constitute an "action" brought or maintained against a municipality, and how can Wis. Stat. § 893.80(1), which refers to a defendant governmental subdivision, be interpreted to apply to a plaintiff municipality? Instead the majority opinion concentrates on whether a claim must be founded on tort or equitable relief under § 893.80(l)(b).
¶ 38. I conclude on the basis of the text of Wis. Stat. § 893.80(l)(b) that RATE'S counterclaim is not an "action" under the statute and that the statute applies only when a governmental subdivision is a defendant in a lawsuit, not when the governmental subdivision is a plaintiff against whom a counterclaim is filed under the circumstances of this case.6
*635¶ 39. Second, the majority opinion's lengthy recitation of the legislative history to Wis. Stat. § 898.80(l)(b) mistakenly focuses on the application of the statute to tort claims in contrast to non-tort claims, rather than on whether counterclaims are actions brought or maintained under the statute and whether the statute applies when the governmental subdivision is the plaintiff rather than the defendant. The majority opinion fails to recognize what is clear from the legislative history: that the legislature, in recreating § 895.43 (the predecessor to § 893.80(1)), contemplated situations in which municipalities are sued as defendants, not situations in which municipalities initiate litigation.
¶ 40. The prefatory note to ch. 285, Laws of 1977, explains that the act created uniform procedures to follow when "prosecuting a claim" against a municipality. The prefatory note further states that "[njotice of disallowance of a claim. . .shall include a statement of the date of disallowance and time during which a claimant may commence a court action" and that "suits [must] be commenced within 6 months of the date of service of notice of allowance" (emphasis added).
*636¶ 41. The phrases "prosecuting a claim," "claimant may commence a court action," and "suits [must] be commenced" as used in the prefatory note demonstrate that the legislature contemplated situations in which claimant-plaintiffs commence litigation against municipality-defendants. The prefatory note does not make sense when the notice of claim requirement is applied to a counterclaim brought by a claimant-defendant against a municipality-plaintiff in response to litigation the municipality commenced raising the very issue addressed in the counterclaim.
¶ 42. I conclude that application of Wis. Stat. § 893.80(l)(b) to RATE'S counterclaim is contrary to the legislative history of the notice of claims statute.
¶ 43. Third, the legislative purpose in enacting Wis. Stat. § 893.80(l)(b) is defeated by the majority's holding. The purpose of the statute has been repeated numerous times in our case law: Municipalities shall be afforded the opportunity to settle claims and to set aside funds to pay any anticipated judgments. See DNR v. Waukesha, 184 Wis. 2d at 195; State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 593, 547 N.W.2d 587 (1996).
¶ 44. In this case the City brought the action and thus cannot maintain that notice of claim was needed to effect compromise without suit or to prevent litigation. RATE'S failure to file a notice of claim did not cost the City an opportunity to settle RATE'S counterclaim. By its own decision to commence litigation the City saw fit to discard the application of Wis. Stat. § 893.80(l)(b).7
*637¶ 45. Furthermore, RATE'S counterclaim was based exclusively on facts presented in the City's action and sought in essence the same relief as that sought by the Town. The City concedes that the Town gave notice of its claim. Under these circumstances the notice of claim requirement has no application to RATE'S counterclaim.
¶ 46. The holding of the majority opinion leads to the absurd result of allowing the City to press its claim against the Board while RATE, relying on the identical set of facts and substantially the same legal theories as the Board and the Town, is denied an opportunity to assert a counterclaim against the City. Under the majority's reasoning, if the City had joined RATE as a party defendant in the action, RATE would be denied an effective defense against the City's action because the City could assert that RATE had not filed a notice of claim.
¶ 47. I conclude that application of Wis. Stat. § 893.80(l)(b) to RATE'S counterclaim is inconsistent with the purpose of the notice of claims statute. As I explain later, the majority opinion is also inconsistent with a purpose of the counterclaim statute.
¶ 48. Fourth, the case law does not support the majority's position. DNR v. Waukesha, the centerpiece of the majority opinion, involves a set of facts wholly distinct and distinguishable from this case, and DNR v. Waukesha is, as the court has already said, too broadly written.
*638¶ 49. The DNR v. Waukesha court considered the applicability of Wis. Stat. § 893.80(l)(b) to an action brought by the DNR against the City of Waukesha to enforce an environmental regulation. In this case, by contrast, a declaratory relief action was brought by the City against the Board. DNR v. Waukesha therefore is not controlling since this case involves a municipality acting as the initiator of litigation, not as the defendant in a lawsuit.
¶ 50. Moreover, in the short time since DNR v. Waukesha was decided, this court has retreated from a universal application of Wis. Stat. § 893.80(l)(b). See Auchinleck, 200 Wis. 2d 585. In Auchinleck the court held that § 893.80(l)(b) does not apply to actions commenced under the open records and open meetings laws.
¶ 51. The Auchinleck court stated that the "all actions" language from DNR "is too broad," and concluded that the open meetings and open records laws are exempt from the notice of claim requirement because the policy of public access to governmental affairs underlying those laws would be undermined by strict adherence to the notice of claims statute. Id. at 597. In this case the majority opinion's conclusion defeats a purpose of the counterclaim statute ■, namely disposing of all points of controversy between the litigants in one action in order to avoid multiple suits.8
¶ 52. There are other exceptions to the "all actions" language of DNR v. Waukesha. For instance, *639the notice of claim requirement is preempted pursuant to the Supremacy Clause when a 42 U.S.C. § 1983 action is brought in a state court. See Felder v. Casey, 487 U.S. 131, 138 (1988). Will the court refuse to view an injunctive proceeding requiring immediate judicial action or a declaratory judgment suit challenging governmental action on constitutional grounds as exceptions to the "all actions" language of DNR v. Waukesha?
¶ 53. In summary, I conclude that the application of the notice of claim requirement to RATE'S counterclaim is inconsistent with the text, the legislative history and the purpose of Wis. Stat. § 893.80(l)(b), and is not supported by the case law interpreting the statute. Accordingly I would reverse the circuit court decision granting summary judgment against RATE for failure to comply with § 893.80(l)(b).
¶ 54. For the foregoing reasons, I dissent.
¶ 55. I am authorized to state that Justice Janine P. Geske and Justice Ann Walsh Bradley join this opinion.
A11 references to Wisconsin statutes are to the 1993 — 94 statutes unless otherwise indicated.
RATE’S pleading is labeled a counterclaim and cross claim. The majority opinion refers only to the counterclaim. I shall use the same terminology, recognizing that counterclaims and cross claims are different. See Wis. Stat. § 802.07.
The Town had appeared at the Board proceedings and sought disqualification of the City representatives from the local siting committee. The Board ruled in favor of the Town.
The parties, like the majority opinion, focus on the word "claim" in Wis. Stat. § 893.80(l)(b); they too have overlooked the word "action."
The court has decided that a counterclaim is a claim under Wis. Stat. § 893.80(1) but has not decided whether a counterclaim is an action under the statute. In Milwaukee v. Milwaukee Civic Developments, Inc. (MCD), 71 Wis. 2d 647, 656-58, 239 N.W.2d 44 (1976), the court concluded that the former notice of claim statute applied to a counterclaim for money damages. MCD, however, focused on whether a counterclaim is an action under the notice of claims statute, not on whether a counterclaim is an action under the notice of claims statute brought or maintained against the municipality. Thus MCD does not address the question in this case, whether a counterclaim is an action brought or maintained against a municipality under the notice of claims statute.
See also Wis. Stat. § 401.201(1), a general provision of the Uniform Commercial Code expressly defining "action" to include a counterclaim.
While the Wisconsin statutes do not generally treat a counterclaim as an action, I recognize that a counterclaim has *635characteristics of an action and could be the subject matter of an independent action if it were not interposed as a counterclaim.
In the event a plaintiffs action is dismissed and a defendant's counterclaim survives dismissal of the action, the counterclaim may become an "action. . .brought or maintained" against a municipality. When the counterclaim thus becomes an action against a municipality, it may then have to meet all the requirements of an action. The municipality might then raise the notice of claim issue. See Sewerage Comm'n of Milwaukee v. DNR, 102 Wis. 2d 613, 633-34 n.6, 307 N.W.2d 189 (1981) (dismissing plaintiff s action but allowing defendant's counterclaim to lie barring some jurisdictional defect).
This court gave weight to this argument in State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 596, 547 N.W.2d 587 (1996). The Auchinleck court reasoned, in part, that when a municipality has control over whether a suit will be filed *637based on its actions so that the municipality contemplates the issues and decides at the outset what it believes to be the appropriate action, allowing that municipality an additional 120 days to contemplate how to respond to a claim in large part duplicates the process in which the municipality has already engaged.
A purpose of the counterclaim statute is to dispose of all points of controversy between the litigants in one action in order to avoid multiple suits. See 3 Jay E. Grenig & Walter L. Harvey, Wisconsin Practice: Civil Procedure § 207.2, at 282 (2d ed. 1994); 6 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1406, at 31-32 (2d ed. 1990).