State v. Schweda

• Decision Date: 13 July 2007
• Docket Number: No. 2005AP1507.,2005AP1507.
• Citation: 2007 WI 100,736 N.W.2d 49
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. William F. SCHWEDA, Jeffrey G. Schweda, and ECI Special Waste Services, Inc., Defendants-Appellants.
• Court: Wisconsin Supreme Court

736 N.W.2d 49

2007 WI 100

STATE of Wisconsin, Plaintiff-Respondent, v. William F. SCHWEDA, Jeffrey G. Schweda, and ECI Special Waste Services, Inc., Defendants-Appellants.

No. 2005AP1507.

Supreme Court of Wisconsin.

Argued February 14, 2007.

Decided July 13, 2007.

For the defendants-appellants there were briefs by John E. Machulak, Susan R. Robertson, and Machulak, Robertson & Sodos, S.C., Milwaukee and oral argument by John E. Machulak.

For the plaintiff-respondent the cause was argued by Joanne F. Kloppenburg, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

ON CERTIFICATION FROM THE COURT OF APPEALS

¶ 1 ANN WALSH BRADLEY, J

This case is before the court on certification from the court of appeals pursuant to Wis. Stat. (Rule) § 809.61 (2005-06).¹ The defendants, William F. Schweda, Jeffrey G. Schweda, and ECI Special Waste Services, Inc. (collectively, ECI) appeal an order and a judgment of the circuit court for Fond du Lac County, Judge Peter L. Grimm presiding. The order granted the State's motion to strike ECI's demand for a jury trial. The circuit court concluded that the constitutional right to a jury trial does not attach to an action seeking forfeitures for violations of waste disposal regulations.² After a trial to the court, the circuit court entered a judgment in favor of the State.

¶ 2 ECI maintains that the circuit court erred in striking its demand for a jury trial. It contends that the causes of action asserted by the State are analogous to common law nuisance claims. It further contends that because common law nuisance claims existed in 1848, and because such claims were actions at law in 1848, the State's claims fulfill the criteria for a constitutional right to a jury trial under Village Food & Liquor Mart v. H & S Petroleum, 2002 WI 92, 254 Wis.2d 478, 647 N.W.2d 177.

¶ 3 Applying the Village Food test, we determine that the claims asserted in the State's complaint do not give rise to a constitutional right to a jury trial. Common law nuisance causes of action are not sufficiently analogous to be considered "essential counterparts" to the modern day regulatory claims asserted here. Therefore, ECI fails the first prong of the Village Food test because the claims asserted did not exist, were not known, and were not recognized at common law at the time the state's constitution was adopted. Id., ¶ 16.

¶ 4 Our determination, however, does not preclude the constitutional right to a jury trial in all environmental regulatory cases. Such a right exists if the asserted claim has an essential counterpart that existed at common law in 1848 and was recognized as an action at law in 1848. Id.

I

¶ 5 William and Jeffrey Schweda are owners of ECI Special Waste Services, Inc., a "centralized waste treater" pursuant to Wis. Admin. Code § NR 211.03(2e)(Oct., 2002). ECI collects waste from client industries, transports the waste to its treatment facility, and pre-treats the waste to comply with specific discharge limitations which are governed by a pretreatment permit issued by the City of Fond du Lac ("City"). ECI then discharges the waste into a sanitary sewer that goes into the City's municipal wastewater treatment plant. ECI's permit requires compliance with effluent limitations, monitoring requirements, and other conditions which are set forth in the permit. ECI also must comply with Wis. Admin. Code ch. 211, which governs centralized waste treaters.

¶ 6 William Schweda began working at ECI as a salesman in 1999 and part of his compensation was shares of stock in the company. In July 2001 William's brother, Jeffrey Schweda, purchased the remaining shares of stock from the founder for $225,000. This purchase made the Schweda brothers the owners of ECI.

¶ 7 In January 2002 the City's wastewater treatment plant experienced an upset condition that caused the City to exceed its discharge limits under its permit for oxygen-consuming organic waste and total suspended solids.³ In March and April of 2002, the City again experienced an upset and consequent permit violation. The City was able to determine that the upsets of the treatment facility were due to high concentrations of surfactants in the wastewater.

¶ 8 The City began sampling the discharges coming from ECI's treatment facility and the samples revealed that ECI persistently exceeded the discharge limits in its permit. During the year in which they operated ECI, the Schwedas used almost no chemicals, disposed of almost no sludge, tested only for pH, did not use the one machine in their laboratory that determined how to treat metals in the wastes they accepted, and did not send any waste samples out for independent laboratory testing. In August 2002, the City revoked ECI's permit to operate as a wastewater treatment facility and the Schwedas closed the facility.

¶ 9 The State brought suit against the Schwedas, alleging that ECI failed to comply with the conditions of their permit and with requirements under the state administrative code and state statutes during the time that the Schwedas owned ECI. The complaint asserted fifteen claims for relief arising out of ECI's operations. The State sought forfeitures for ECI's violations under Wis. Stat. §§ 281.98(1), 283.91(2), 289.96(3)(a), and 291.97(1), penalties pursuant to Wis. Stat. § 757.05(1)(a), and the environmental assessment available under Wis. Stat. § 299.93.

¶ 10 ECI demanded a jury trial, and the State moved to strike. The circuit court granted the State's motion, determining that ECI failed to demonstrate that the State's action met either of the two prongs of the test for a constitutional right to a jury trial set forth in Village Food.

¶ 11 The case was tried to the court. The circuit court determined that ECI was liable for some, but not all, of the violations alleged, and imposed forfeitures for the time period the Schwedas owned and managed ECI. ECI appealed, and the court of appeals certified the case on the question of a right to jury trial under Article I, Section 5 of the Wisconsin Constitution.

II

¶ 12 This case addresses the issue of whether a cause of action gives rise to a right to a jury trial under Article I, Section 5 of the Wisconsin Constitution. Whether there is a constitutionally guaranteed right to a jury trial for a particular cause of action requires us to interpret a provision of the state constitution, which we do independently of the determination rendered by the circuit court. Vill. Food, 254 Wis.2d 478, ¶ 7, 647 N.W.2d 177.

III

¶ 13 ECI maintains that the circuit court erred in striking its demand for a jury trial. It contends that the causes of action asserted by the State are analogous to common law nuisance claims. It further argues that because common law nuisance claims existed at common law in 1848, and because such claims were actions at law in 1848, the State's claims fulfill the criteria for a constitutional right to a jury trial under Village Food.

¶ 14 We disagree. Applying the Village Food test, we determine that the claims asserted in the State's complaint do not give rise to a constitutional right to a jury trial. Common law nuisance causes of action are not sufficiently analogous to be considered "essential counterparts" to the modern day regulatory claims asserted here. Therefore, ECI fails the first prong of the Village Food test because the claims asserted did not exist, were not known, and were not recognized at the time the state's constitution was adopted.

¶ 15 Our conclusion is consistent with the determinations of other states which have addressed a similar issue.⁴ Like other states, we begin our examination by reviewing our state constitution.

¶ 16 Under Article I, Section 5 of the Wisconsin Constitution, the right to a jury trial "shall remain inviolate." Section 5 provides in full:

The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law. Provided, however, that the legislature may, from time to time, by statute provide that a valid verdict, in civil cases, may be based on the votes of a specified number of the jury, not less than five-sixths thereof.

¶ 17 While Article I, Section 5 provides that the right "shall remain inviolate," it does not apply to all matters. Historically, it has been interpreted to apply only to civil cases. Dane County v. McGrew, 2005 WI 130, ¶ 13, 285 Wis.2d 519, 699 N.W.2d 890; Bennett v. State, 57 Wis. 69, 74, 14 N.W. 912 (1883). Jury trial in criminal cases falls under the purview of Article I, Section 7.

¶ 18 Moreover, Section 5 has been interpreted to mean that the right is preserved to the extent that it existed at the time of the adoption of the state constitution in 1848. See McGrew, 285 Wis.2d 519, ¶ 15, 699 N.W.2d 890; Town of Burke v. City of Madison, 17 Wis.2d 623, 635, 117 N.W.2d 580 (1962). Three cases comprise this state's recent jurisprudence on the question of when the right to a jury trial as it existed in 1848 creates a constitutional right to a jury trial in a contemporary cause of action, State v. Ameritech Corp., 185 Wis.2d 686, 517 N.W.2d 705 (Ct.App. 1994), Village Food, and McGrew.

¶ 19 In Ameritech, the court of appeals adopted a two-prong test for determining whether a statutory cause of action gives rise to a constitutional right to a jury trial. It determined that there is such a right where "(1) the statute codifies an action known to the common law in 1848; and (2) the action was regarded as at law [i.e., rather than at equity] in 1848." 185 Wis.2d at 690, 517 N.W.2d 705 (emphasis in original).

¶ 20 This court examined the Ameritech decision in Village Food. 254 Wis.2d 478, ¶ 9, 647 N.W.2d 177. We refined the first prong of the Ameritech test so that an action need not be based on the codification of a specific common law action that existed...