Dawson v. Town of Jackson

• Decision Date: 19 July 2011
• Docket Number: No. 2009AP120.,2009AP120.
• Parties: Dale DAWSON, Gudrun Dawson and Edward Thomas, Plaintiffs–Respondents,v.TOWN OF JACKSON, Defendant–Respondent,Town of Cedarburg, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

801 N.W.2d 316

2011 WI 77

Dale DAWSON, Gudrun Dawson and Edward Thomas, Plaintiffs–Respondents,

v.TOWN OF JACKSON, Defendant–Respondent,Town of Cedarburg, Defendant–Appellant–Petitioner.

No. 2009AP120.

Supreme Court of Wisconsin.

Argued Oct. 1, 2010.Decided July 19, 2011.

For the defendant-appellant-petitioner there were briefs and oral argument by Brad M. Hoeft and Huiras, Farrell & Antoine, S.C., Port Washington.For the plaintiffs-respondents there was a brief and oral argument by John M. Bruce and Schober Schober & Mitchell, S.C., New Berlin.For the defendant-respondent there was a brief and oral argument by Daniel L. Sargeant and Schloemer Law Firm, S.C., West Bend.An amicus curiae brief was filed by Lee Turonie, Shawano, for Wisconsin Towns Association.DAVID T. PROSSER, J.

¶ 1 This is a review of a published decision of the court of appeals, Dawson v. Town of Jackson, 2010 WI App 24, 323 Wis.2d 477, 780 N.W.2d 222, affirming a declaratory judgment of the Washington County Circuit Court, Patrick J. Faragher, Judge. The case requires us to interpret the phrase “acting together” in Wis. Stat. § 82.21(2) ¹ as it pertains to governing bodies deciding an application to lay out, alter, or discontinue a public highway on or across municipal lines.

¶ 2 The respondents, Dale Dawson, Gudrun Dawson, and Edward Thomas (the Dawsons), applied to the town boards of Cedarburg and Jackson to vacate part of a jointly owned public highway, Wausaukee Road, which is surrounded by land the Dawsons own. On January 9, 2008, the two town boards held a joint meeting to consider the Dawsons' application. The meeting was attended by three of five Cedarburg board members and all five Jackson board members. At the meeting, all five Jackson board members voted in favor of the application to discontinue the road, but the three Cedarburg members voted against it.

¶ 3 On June 20, 2008, the Dawsons sought a declaratory judgment under Wis. Stat. § 806.04 that the joint action of the town boards resulted in discontinuance of the road.² The circuit court granted summary judgment to the Dawsons, concluding that under § 82.21(2), “acting together” required that all votes at the joint meeting be counted in the aggregate, resulting in discontinuance. On appeal, the court of appeals affirmed the circuit court. Dawson, 323 Wis.2d 477, ¶ 1, 780 N.W.2d 222.

¶ 4 Cedarburg presents three issues for review:

First, does the phrase “acting together” in Wis. Stat. § 82.21(2) require that separate votes taken by two governing bodies in deciding an application to lay out, alter, or discontinue a public highway on or across municipal lines be counted in the aggregate as if the two bodies voted as one?

Second, is certiorari review under Wis. Stat. § 82.15 the prescribed method of reviewing the decisions made at the joint meeting referenced in Wis. Stat. § 82.21(2), and, if so, does this method of review preclude a filing for declaratory judgment under Wis. Stat. § 806.04?

Third, should the Dawsons be equitably estopped from asserting a position “that is inconsistent with their prior actions and representations to the town boards which led up to their joint meeting [on January 9, 2008] to consider Dawsons' application to discontinue the town line road?”

¶ 5 We conclude the following:

(a) The phrase “acting together” in Wis. Stat. § 82.21(2) is ambiguous.

(b) The phrase “acting together” does not require that the separate votes taken by two governing bodies in deciding an application to lay out, alter, or discontinue a public highway on or across municipal lines be counted in the aggregate as if the two bodies voted as one.

(c) Wisconsin Stat. § 82.21(2) expects governing bodies such as town boards to come together and cooperate to resolve a joint application, but it does not mandate the creation of a combined board. The approval of both governing bodies is necessary to approve a joint application like the one from the Dawsons.

(d) Wisconsin Stat. § 82.15 contemplates certiorari review under Wis. Stat. § 68.13 as the prescribed method for review of “a highway order, or a refusal to issue such an order.” Section 68.13 establishes both the procedure and a time limit for seeking review of a highway order under most circumstances.

(e) Inasmuch as the Dawsons were seeking a determination that Cedarburg's refusal to issue a highway order was not in accordance with law, they should have proceeded under Wis. Stat. § 68.13.

(f) The fact that the circuit court should have dismissed the Dawsons' request for a declaratory judgment as untimely under § 68.13 does not deprive the supreme court of jurisdiction to address an issue of law.

(g) We do not reach the question whether the Dawsons are equitably estopped from asserting a position contrary to their representations prior to the joint meeting because, given our other rulings, we are not required to do so.

I. BACKGROUND AND PROCEDURAL HISTORY

¶ 6 Although the parties are not in complete agreement about the facts, the material facts are undisputed. This case arises from the Dawsons' application under Wis. Stat. § 82.21 to discontinue a portion of Wausaukee Road, a town line highway that lies on and across the municipal boundary line of the towns of Cedarburg and Jackson. The Town of Cedarburg (Cedarburg) is located in Ozaukee County; the Town of Jackson (Jackson) is located in Washington County. The Dawsons are owners of all property bordering the affected half-mile portion of the highway. The portion of the road that the Dawsons seek to discontinue comes to a dead end surrounded by their property.

¶ 7 The Dawsons submitted an application to Cedarburg to discontinue a portion of the road in a letter from their counsel dated May 16, 2007. The letter reminded members of the Cedarburg board that the Dawsons had made a similar application to the two boards in 2005. At that time, the Jackson board voted unanimously to vacate the road, but the Cedarburg board, on a split vote, rejected the application. The letter characterized Cedarburg's 2005 vote as falling “short of the votes needed to vacate the roadway.”

¶ 8 The letter further explained that the Dawsons had approached the Jackson board recently, and the board had voted on May 10, 2007, to confirm its action two years before. The letter asserted that Cedarburg would be required to publish the appropriate notices and hold a public hearing but that “a mutual meeting” with Jackson “is no longer necessary.”

¶ 9 Cedarburg responded to the letter by requesting a joint meeting with Jackson. The Dawsons followed up, on August 30, 2007, with a joint application to the two towns and a letter containing additional discussion of statutory requirements. Thereafter, the two boards held a joint meeting in Jackson on January 9, 2008. Three of the five Cedarburg board members were in attendance, with two members excused. All Jackson board members were present.

¶ 10 The two boards conducted a public hearing and appear to have engaged in some discussion before taking a recess to confer separately. The boards then voted separately. The three Cedarburg board members present voted not to discontinue the highway; the five Jackson board members voted to support the application.

¶ 11 Following the meeting, Jackson recorded in Washington County a highway order to vacate part of the road. Despite the Dawsons' request, Cedarburg declined to issue a similar order in Ozaukee County. When Lannon Stone Products, Inc. placed a sign on Wausaukee Road indicating that it had been discontinued, Cedarburg issued two citations to the corporation for “erecting a prohibited sign on streets” and for “public nuisance-obstruct/tend to obstruct street.” These citations were issued on April 12, 2008.

¶ 12 On June 20, 2008, the Dawsons commenced a declaratory judgment action in the Washington County Circuit Court seeking a declaration that the joint action taken by the boards had discontinued the road and asking that a highway order to that effect be issued and recorded in both counties. The Dawsons filed a motion for summary judgment. Their motion was supported by Jackson. Cedarburg responded, in part, that the declaratory judgment action was precluded by § 82.15, which prescribes certiorari review under Wis. Stat. § 68.13 for a person aggrieved by a town's refusal to issue an order to discontinue a highway. The circuit court disagreed and granted summary judgment to the Dawsons determining as a matter of law that the towns, acting together, had authorized discontinuance.

¶ 13 In its written decision, the circuit court interpreted the phrase “acting together” to require the towns to count their votes in the aggregate as if the votes had taken place in a single body. The court determined that the phrase “acting together” was not ambiguous and that to construe the statute in favor of Cedarburg would render the “acting together” language meaningless. The court also rejected Cedarburg's argument that the Dawsons should have sought review under § 68.13 as provided in § 82.15. The court said that certiorari review would not have provided the relief the Dawsons requested. The circuit court did not address Cedarburg's estoppel claim.

¶ 14 Cedarburg appealed, Dawson, 323 Wis.2d 477, ¶ 5, 780 N.W.2d 222, and the Wisconsin Towns Association filed an amicus brief in support of Cedarburg's interpretation of the statute. Id., ¶ 19 n. 6. However, the court of appeals affirmed, holding that (1) “[t]he Dawsons properly sought a declaratory judgment rather than certiorari review to clarify the meaning of the term ‘acting together’ ”; (2) Cedarburg had “not demonstrated the required elements for a claim of estoppel on appeal”; and (3) in interpreting § 82.21(2), “the total votes cast must be counted together to determine the result.” Id., ¶ 28. The court stated that “[a]ny other interpretation of ‘acting together’ would be unreasonable and contrary to the plain language of the statute.” Id.

¶ 15 Cedarburg...