Wisconsin Ass'n of Food Dealers v. City of Madison

• Decision Date: 27 June 1980
• Docket Number: No. 77-699,77-699
• Citation: 97 Wis.2d 426,293 N.W.2d 540
• Court: Wisconsin Supreme Court
• Parties: , 14 ERC 1803 WISCONSIN ASSOCIATION OF FOOD DEALERS; Wisconsin Dairy Products Association, Inc.; Wisconsin Merchants Federation; Bancroft Dairy-Division of the Southland Corporation, Inc.; Borden's, Inc.; Sherman Plaza Food Center, Inc.; Eagle Mid-Western Region Lucky Stores, Inc.; Lake Edge Market, Inc.; and Ullsvik's Food Market, Plaintiffs-Appellants-Petitioners, v. CITY OF MADISON, a Municipal Corporation; Carl Mohr, individually and as thedirector of the Public Health Department of the city of Madison; and JackThonus, individually and as the director of the Environmental and ConsumerProtection Divisionof the Public Health Department of the city of Madison, Defendants-Respondents.

Page 540

293 N.W.2d 540

97 Wis.2d 426, 14 ERC 1803

WISCONSIN ASSOCIATION OF FOOD DEALERS; Wisconsin Dairy Products Association, Inc.; Wisconsin Merchants Federation Bancroft Dairy-Division of the Southland Corporation, Inc. Borden's, Inc.; Sherman Plaza Food Center, Inc.; Eagle Mid-Western Region Lucky Stores, Inc.; Lake Edge Market Inc.; and Ullsvik's Food Market, Plaintiffs-Appellants-Petitioners, v. CITY OF MADISON, a Municipal Corporation; Carl Mohr individually and as thedirector of the Public Health Department of the city of Madison; and JackThonus, individually and as the director of the Environmental and ConsumerProtection Divisionof the Public Health Department of the city of Madison, Defendants-Respondents.

No. 77-699.

Supreme Court of Wisconsin.

Argued June 2, 1980.

Decided June 27, 1980.

John H. Bowers (argued), Madison, for plaintiffs-appellants-petitioners; Richard L. Cates and Lawton & Cates, Madison, on briefs.

William A. Jansen, Asst. City Atty. (argued), with whom on the brief was Henry A. Gempeler, City Atty., for defendants-respondents.

CALLOW, Justice.

This is an action for declaratory and injunctive relief seeking to have sec. 23.44(2) of the Madison General Ordinances declared invalid and to enjoin the city from enforcing the ordinance. ¹ The ordinance requires retail outlets in Madison selling milk in nonrefillable containers equal to or greater than one gallon in volume to also offer milk for sale in "returnable, refillable, reusable" containers in "sufficient quantities." Violators of the ordinance are subject to a forfeiture of not more than $200. Sec. 23.60, Madison General Ordinances.

The plaintiffs, petitioners in this court, consist of wholesale producers of milk and milk products, retail marketers of milk within Madison, and trade associations representing milk and milk products wholesalers and retail marketers in Wisconsin. The petitioners moved the circuit court for a temporary injunction pending a hearing on the merits, advancing two arguments: First, that the ordinance is an invalid attempt to regulate an area preempted by the state; second, that the ordinance is unconstitutionally vague.

Ruling on the petitioners' request, the circuit court stated that the ordinance does not conflict with state legislation or regulations and that the ordinance is not unconstitutionally vague. The circuit court, therefore concluded that the petitioners had not established a reasonable probability of success on the merits of their attack and denied the motion for a temporary injunction for that reason. This court granted petitioners' motion to stay enforcement of the ordinance pending appeal.

On appeal, the court of appeals affirmed the circuit court's order. Wis. Asso. of Food Dealers v. City of Madison, 89 Wis.2d 311, 278 N.W.2d 481 (Ct.App.1979). The court of appeals correctly identified the sole issue as being whether the circuit court abused its discretion in denying the temporary injunction. Id. at 314-15, 278 N.W.2d 481. Then, like the circuit court, the court of appeals concluded the petitioners had not demonstrated a reasonable probability of success on the merits and affirmed the order denying the petitioners' motion, finding no abuse of discretion. Our review of the record, however, reveals a failure of the trial court to consider a matter relevant to the determination of the probability of the petitioners' success. This omission, we conclude, constitutes an abuse of the circuit court's discretion. Consequently, we reverse the decision of the court of appeals.

I.

Statutory authority for the issuance of a temporary injunction is provided by sec. 813.02(1), Stats., which provides:

"When it appears from his pleading that a party is entitled to judgment and any part thereof consists in restraining some act, the commission or continuance of which during the litigation would injure him, or when during the litigation it shall appear that a party is doing or threatens or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act."

The denial of a temporary injunction under this statute is a matter within the discretion of the trial court, and the sole issue on appeal is whether the trial court abused its discretion. ² The test is not whether the appellate court would grant the injunction but whether there was an abuse of discretion on the part of the trial court. ³ As to the exercise of this discretion, this court has stated the following guidelines:

"Injunctions, whether temporary or permanent, are not to be issued lightly. The cause must be substantial. A temporary injunction is not to be issued unless the movant has shown a reasonable probability of ultimate success on the merits. Temporary injunctions are to be issued only when necessary to preserve the status quo. Injunctions are not to be issued without a showing of a lack of adequate remedy at law and irreparable harm, but at the temporary injunction stage the requirement of irreparable injury is met by showing that, without it to preserve the status quo pendente lite, the permanent injunction sought would be rendered futile." (Footnotes omitted.)

Werner v. A. L. Grootemaat & Sons, Inc., 80 Wis.2d 513, 520, 259 N.W.2d 310 (1977). With regard to an appellate court's review of the exercise of this discretion, we have indicated that an abuse of discretion may occur under the following circumstances:

"(1) Failure of the trial judge to consider and make a record of factors relevant to a discretionary determination in a particular case; (2) consideration of clearly irrelevant or improper factors; and (3) clearly giving too much weight to one factor."

Joint School v. Wisconsin Rapids Education Asso., 70 Wis.2d 292, 309, 234 N.W.2d 289 (1975). See also: Browne v. Milwaukee Board of School Directors, 83 Wis.2d 316, 336, 265 N.W.2d 559, 267 N.W.2d 379 (1978).

As the court of appeals noted, "(t)he significance of the matter covered by the ordinance is beyond dispute. If an injunction is not granted, the status quo will be affected because marketing practices may have to be modified." Wis. Asso. of Food Dealers v. City of Madison, 89 Wis.2d at 315, 278 N.W.2d at 483. Thus, like the court of appeals, we turn to the narrow issue presented by this case: whether the circuit court abused its discretion by denying the petitioners' motion for a temporary injunction on the ground that the petitioners had not shown a reasonable probability of ultimate success on the merits.

II.

Madison General Ordinance sec. 23.44(2) implicates both local and statewide concerns. The availability to consumers of returnable milk containers clearly affects the city's interest in trash collection and disposal. Required use of returnable containers is also a matter of statewide concern because it affects the distribution of milk and milk products. Sec. 97.24(6)(a), Stats., provides:

"Regulation of the production, processing and distribution of grade A milk and grade A milk products under minimum sanitary requirements which are uniform throughout the state and the United States is essential for the protection of consumers and the economic well-being of the dairy industry, and is therefore a matter of state-wide concern ; however, nothing in this section shall impair or abridge the power of any municipality or county to regulate milk or milk products under sanitary requirements and standards which are in reasonable accord with those issued under this section." (Emphasis added.)

Sec. 96.02, Stats., provides:

"It is declared to be the policy of this state to promote orderly and efficient marketing of agricultural commodities and to prevent economic waste of the agricultural wealth of this state. Unfair methods of competition, lack of uniform grading and classification of agricultural commodities, and the inability of individual producers to obtain present markets or to develop new or larger markets for Wisconsin agricultural commodities result in disorderly marketing of such commodities. As a result agricultural producers are prevented from receiving a fair return for the products which they market. Such conditions jeopardize the continued production of an adequate food supply for this and other states, and may result in unemployment with its attendant burdens on the citizens of this state. The production, processing and marketing of agricultural commodities within this state is hereby declared to be affected with a public interest and this chapter is enacted for the purpose of protecting the health, peace, safety and general welfare of the people of this state."

Although not conclusive, legislative determinations that matters are of statewide concern are entitled to great weight. ⁴ These declarations indicate that the statewide concern is paramount. Because the statewide concern is paramount, Madison's power to adopt an ordinance in this area must come from a source other than the home-rule amendment, Art. XI, Sec. 3, of the Wisconsin Constitution. ⁵ "The constitutional authority of cities only extends to local affairs and does not cover matters of statewide concern." Plymouth v. Elsner, 28 Wis.2d 102, 106, 135 N.W.2d 799 (1965). See also: Muench v. Public Service Commission, 261 Wis. 492, 53 N.W.2d 514, on rehearing 261 Wis. 515c, 515c-515d, 515j, 55 N.W.2d 40 (1952).

A city ordinance may be authorized by sec. 62.11(5), Stats., notwithstanding statewide concern in the matter it regulates. That section provides:

"Except as elsewhere in the statutes specifically provided, the council shall have the management and control of the city property, finances, highways, navigable waters, and the public service, and shall have power to act for the government and good order of the city, for its commercial benefit, and for the health, safety, and welfare of the public, and may carry out its...