Milwaukee Gun Club v. Schulz

• Decision Date: 23 November 1992
• Docket Number: No. 92-1007,92-1007
• Citation: 979 F.2d 1252
• Parties: MILWAUKEE GUN CLUB, Plaintiff-Appellant, v. David F. SCHULZ, Milwaukee County Executive, Robert G. Ott, Milwaukee County Corporation Counsel, and County of Milwaukee, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1252

979 F.2d 1252

MILWAUKEE GUN CLUB, Plaintiff-Appellant, v. David F. SCHULZ, Milwaukee County Executive, Robert G. Ott,

Milwaukee County Corporation Counsel, and County

of Milwaukee, Defendants-Appellees.

No. 92-1007.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 23, 1992.

Decided Nov. 17, 1992.

As Amended Nov. 23, 1992.

Mark M. Camp (argued), Pfannerstill & Camp, Wauwatosa, Wis., for plaintiff-appellant.

Robert G. Ott, John F. Jorgensen (argued), Office of the Corp. Counsel, Milwaukee, Wis., for defendants-appellees.

Before CUMMINGS, FLAUM, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Milwaukee Gun Club filed this action to prevent Milwaukee County from evicting the Gun Club from its present site on the shores of Lake Michigan. The Gun Club brought claims for temporary and permanent injunctive relief under 42 U.S.C. §§ 1983, 1985, and 1988, alleging that its rights under the Fourth, Fifth, and Fourteenth Amendments were threatened. The district court granted the Gun Club's motion for a preliminary injunction. Subsequently, finding that Milwaukee County had superior rights to the land occupied by the Gun Club, the court lifted the injunction and dismissed the case sua sponte. We affirm.

I.

To understand the issue in this case, it is necessary to recount a bit of Milwaukee history. In a series of legislative acts from 1893 to 1921, the State of Wisconsin granted submerged parcels of the Lake Michigan shoreline to the City of Milwaukee. These acts provided that the city was to fill in a portion of the lands for use as public parks. The lake shore land at issue in this case, located east of and adjacent to Lake Park, was transferred from the state to the city under Chapter 307, Wisconsin Laws of 1921. The statutory conditions of the grant provided that the land be used for no other purpose than as a public park and boulevard, and prohibited the city from selling or leasing the land.

The 1921 grant was amended, at the request of the City of Milwaukee, by Chapter 261, Wisconsin Laws of 1933. The 1933 amendment permitted the city to build and operate a water purification plant on a portion of the land adjacent to Lake Park, but otherwise reiterated the restriction concerning use of the land for a public park and boulevard, as well as the prohibition against alienation. ¹ The Milwaukee Water Purification Plant was placed in service in 1939.

The Milwaukee Gun Club was incorporated under the laws of Wisconsin as a non-profit corporation in 1919. In that year, the city authorized the Gun Club to build a shelter house on the lake shore of Lake Park, a stretch of land included in the 1921 grant from the state to the city. In anticipation of the construction of the Milwaukee Water Filtration Plant, the City of Milwaukee Park Board subsequently instructed the Gun Club to move its facility southward. In 1929, the Gun Club constructed its present facility, located approximately 600 feet south of the plant.

In a 1936 referendum, the voters of Milwaukee approved the transfer of land administered by the City Board of Park Commissioners for park and parkway purposes to Milwaukee County, on the condition the county operate the lands as public parks and parkways. However, the restriction on alienation in Chapter 307, Wisconsin Laws of 1921, prevented immediate transfer of ownership of the submerged lands along the lake front. This obstacle was removed by Chapter 297, Wisconsin Laws of 1937, which permitted the city to transfer to the county all or any part of the submerged lands that had previously been ceded by the state for park or parkway purposes. The statute contained an exception for lands ceded for purposes other than parks and parkways, including water purification. ²

Notwithstanding the transfer of the city park system to the county, the land on which the Milwaukee Gun Club is situated was never formally conveyed. On October 15, 1936, the Common Council of the City of Milwaukee unanimously adopted a resolution directing the proper city officers to transfer the ownership of all lands and improvements administered by the city's Board of Park Commissioners to the county. The city conveyed by deed certain parks and parkways pursuant to the 1937 statute; however, questions concerning title, easements, and legal descriptions of the city lake front lands prevented immediate delivery of the deeds for these lands to the county.

In 1945, 1947, and again in 1957, the county submitted deed drafts to the city, but the conveyance of the submerged lands was never executed. Despite this omission, the county has for the past fifty-five years operated and maintained a consolidated park system. Moreover, since 1937, the county and the Gun Club have treated the property the Gun Club occupies as owned by the county. In 1983, at the request of the Milwaukee Commissioner of Parks, the Gun Club and the county entered into a five-year lease.

In 1988, the Gun Club requested that the lease be extended. The County Board of Supervisors granted a one year extension in November, 1988 and presented the resolution to County Executive David Schulz for approval. Schulz approved the extension on the condition that the Gun Club would vacate the premises by December 31, 1989, and not seek further extensions or attempt to negotiate a new lease. The Gun Club agreed to these terms in writing.

Subsequently, on January 23, 1990, the Gun Club filed a suit in the district court for the Eastern District of Wisconsin seeking to prevent the county from evicting the Club from its site in violation of the Club's rights under the Fourth, Fifth, and Fourteenth Amendments. The complaint named as defendants Milwaukee County, County Executive Schulz, and the county corporation counsel. In a motion for a preliminary injunction, the Gun Club presented evidence that the city, not the county, owned the land. The county did not dispute this claim and the Gun Club's motion was granted on January 29, 1990.

On January 4, 1991, the mayor, city clerk, and special deputy comptroller of Milwaukee executed a quitclaim deed conveying the city's interest in the lake front land occupied by the Gun Club to the county. The county then moved the district court to vacate the preliminary injunction. On October 22, 1991, finding that Gun Club had no right to impede eviction by the county, the court dissolved the injunction and dismissed the case.

II.

The Gun Club makes two arguments on appeal. The first is that the city cannot legally transfer the land on which the Gun Club sits to the county because this land was set aside for water purification purposes under the 1937 act. For this reason, the Gun Club insists, the 1991 quitclaim deed for the submerged or partly submerged lands adjacent to Lake Park is void.

Second, the Gun Club argues that the quitclaim deed is void by reason of certain procedural deficiencies in its conveyance. Specifically, the Gun Club avers that, in violation of statutory requirements: (1) the Milwaukee Common Council did not authorize the 1991 conveyance; (2) the city did not refer the transfer of the submerged lands to the city plan commission for its consideration; (3) the city attorney did not approve the deed. We address the Gun Club's arguments seriatim.

We review de novo the district court's interpretation of state law. Salve Regina College v. Russell, --- U.S. ----, ----, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991); Belline v. K-Mart Corp., 940 F.2d 184, 186 (7th Cir.1991). In so doing, "[w]e begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). "If the plain language of the statute is clear, we do not look beyond those words to interpret the statute." Kelly v. Wauconda Park Dist., 801 F.2d 269, 270 (7th Cir.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1592, 94 L.Ed.2d 781 (1987). However, we are mindful that in ascertaining the plain meaning of the statute, the court must look not only to the particular statutory language at issue, but to the language and design of the statute as a whole. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 1818, 100 L.Ed.2d 313 (1988).

In 1933, the Wisconsin legislature amended the 1921 grant of lake shore land to the city for park and parkway purposes. The 1933 amendment permitted the city to construct a water purification plant on that portion of the land "lying adjacent to Lake Park." By Chapter 297, Wisconsin Laws of 1937, the state legislature permitted the city to transfer the lake shore land to the county, specifically excepting land previously ceded to the city for "water purification purposes." The Gun Club claims that its facility is located on land that falls within this exception, that is, land that cannot lawfully be transferred to the county.

In Wisconsin, municipalities have no inherent right of self-government that is beyond the legislative control of the state. Van Gilder v. Madison, 222 Wis. 58, 268 N.W. 108, 109 (1936). Consequently, cities are creatures of the state legislature and have only such powers as are expressly granted to them and such others as are necessary to implement the powers expressly granted. Schroeder v. City of Clintonville, 90 Wis.2d 457, 280 N.W.2d 166, 169 (1979). Applying these principles to this case, we find the Gun Club's interpretation of state law is erroneous and the City of Milwaukee acted within the scope of its powers when it transferred the lake shore land the Gun Club occupies to the county.

The 1933 amendment was enacted to allow the city to build a water purification plant on land otherwise devoted to use as a public park and boulevard. The act reiterates the 1921 grant and...