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
Decided July 13, 2007
2007 WI 100 | 736 N.W.2d 49
Oral argument February 14, 2007.
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.
¶ 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
¶ 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
¶ 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
¶ 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
¶ 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
¶ 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
II
¶ 12. This case addresses the issue of whether a cause of action gives rise to a right to a jury trial under
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
¶ 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
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
Likewise, the Connecticut Supreme Court examined its state constitutional provision when addressing the issue of whether there was a constitutional right to a jury trial for the enforcement of environmental regulations in Comm‘r of Envtl. Prot. v. Connecticut Bldg. Wrecking Co., Inc., 629 A.2d 1116 (Conn. 1993). The Connecticut Constitution “guarantees a jury trial in all cases for which ‘there was a right to a trial by jury at the time of the adoption of that provision,’ which was 1818.” Id. at 1121 (quoting
¶ 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 (emphasis in original).
¶ 20. This court examined the Ameritech decision in Village Food. 254 Wis. 2d 478, ¶ 9. 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 in 1848. Rather, the action must have existed, been known, or been recognized at common law in 1848. We stated the test as follows:
[A] party has a constitutional right to have a statutory claim tried to a jury when: (1) the cause of action created by the statute existed, was known, or recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848; and (2) the action was regarded as at law in 1848.
Vill. Food, 254 Wis. 2d 478, ¶ 16.
¶ 22. Village Food involved allegations that the defendant violated
¶ 23. Instead, the court determined that the mark-up laws are “of the same ‘nature’ ” as the common law crimes of forestalling the market, regrating, and engrossing. Id., ¶ 27 (citing, inter alia, 4 William Blackstone, Commentaries on the Laws of England, ch. 12, at 158-59 (1778)). Thus, the Village Food majority rejected drawing an analogy between a modern statutory cause of action and a common law cause of action based
¶ 24. The concurrence/dissent in Village Food agreed with the majority regarding the test for determining whether there is a right to a jury trial, but disagreed regarding whether violations of
¶ 25. Further the concurrence/dissent warned that such a broad classification would render the Village Food test a nullity because “present causes of action of all sorts assessed under this test will only have to be compared generally... in order to invoke the constitutional protection to a trial by jury.” Id., ¶ 46. Thus, the Village Food majority and concurrence/dissent agreed on the appropriate test, and agreed that the constitutional right to a jury trial cannot be based on a very broad analogy to a cause of action at statehood. They disagreed only on the matter of how narrow the analogy may be.
¶ 26. In McGrew, this court split on the question of whether there is a constitutional right to a jury trial in a cause of action for speeding pursuant to
¶ 27. The lead opinion stated that “the class of actions categorized as ‘nuisances’ [is] simply too broad to be analogized to a speeding violation.... [T]hey are not ‘essentially counterparts.’ ” Id., ¶ 25. It warned that analyzing causes of action in terms so broad “would lead to a jury trial in virtually every forfeiture case.” Id., ¶ 28.
¶ 28. The concurrence and dissent in McGrew, totaling four justices, concluded that the defendant did have a constitutional right to a jury trial.5 However, the conclusion was not premised on drawing an analogy between speeding and the very broad category of nuisances for “annoyances in highways, bridges, and public rivers by rendering the same inconvenient or dangerous to pass....” Rather, it was based on the narrower analogy between speeding and the rules of the road set forth in Wisconsin‘s statutes of 1849. Id., ¶ 59 (Bradley, J., concurring) (citing
¶ 30. ECI raises only one argument for why the causes of action in the State‘s complaint meet the first part of the Village Food test. It maintains that it has a right to a jury trial for the claims in the State‘s complaint because those claims are “essentially a counterpart to common law nuisance.” The State‘s claims are based upon statutes and regulations that are “environmental” in nature. At statehood, environmental protection was achieved by common law actions in public and private nuisance. ECI therefore contends that the environmental nature of the State‘s claims and the environmental aspect of common law nuisance warrant the conclusion that the State‘s claims “existed, [were] known, or recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848.” Vill. Food, 254 Wis. 2d 478, ¶ 16.6
¶ 31. There is no question that modern environmental law finds its roots in common law nuisance. A leading treatise on environmental law states:
The deepest doctrinal roots of modern environmental law are found in principles of nuisance. . . . Nuisance actions have involved pollution of all physical media—air, water, land—by a wide variety of means. . . . Nuisance actions have challenged virtually every major industrial and municipal activity which is today the subject of comprehensive environmental regulation. . . . Nuisance theory and case law is the common law backbone of modern environmental and energy law.
William H. Rodgers, Jr., Handbook on Environmental Law, § 2.1, at 100 (1977).
¶ 32. However, there are vital differences between nuisance law and modern environmental regulatory law. For one, nuisance is a sprawling concept. Historically, “nuisance” has been a term so broad that it could encompass a vast array of causes of action. It included everything from an alarming advertisement to a cockroach baked in a pie.
There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word “nuisance.” It has meant all things to all people, and has
been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition. Few terms have afforded so excellent an illustration of the familiar tendency of the courts to seize upon a catchword as a substitute for any analysis of a problem. . . .
W. Page Keeton, Prosser and Keeton on the Law of Torts, § 86, at 616-17 (5th ed. 1984).
¶ 33. Such vagueness is demonstrated by the mélange of causes of action characterized as public nuisances. Prosser and Keeton further detail such offenses as eavesdropping on a jury and being a common scold as constituting public nuisance. Id., § 90, at 643-44.
¶ 34. This court has demonstrated its wariness of basing a constitutional right to a jury trial on such a broad analogy. See McGrew, 285 Wis. 2d 519, ¶¶ 25, 28; Vill. Food, 254 Wis. 2d 478, ¶¶ 23-25. We are therefore cautious here as well. Having “doctrinal roots” in nuisance is not alone sufficient for a modern cause of action to be “essentially a counterpart” to nuisance actions. We note that a modern statutory claim may codify a common law nuisance action that existed, was known, or recognized in 1848 and thereby meet the first prong of the Village Food test. However, the modern cause of action requires more than a passing resemblance to the action. As we put it in Village Food, it must be “essentially [a] counterpart.” Id., ¶ 28.
¶ 35. Here, the causes of action are not essentially counterparts to the public nuisance actions that existed at common law. A cause of action for public nuisance requires a showing of substantial and unreasonable harm to interests in the use and enjoyment of land. See
¶ 36. Thus, while a complaint must allege harm in order to state a claim for nuisance, the claims alleged in the State‘s complaint do not depend upon allegations of harm in order to lie. Rather, the defendants are liable for violations regardless of harm.7
¶ 37. Claim 3, for example, alleges violations of
¶ 38. Claims 1, 4, 5, and 7-14 exhibit the same pattern:
- Claim 1 alleges that ECI “cause[d] or significantly contribute[d] to” the City of Fond du Lac exceeding its discharge permit limits for oxygen-consuming organic waste and total suspended solids in violation of
Wis. Admin. Code § NR 211.10(1) (Oct., 2002) . - Claim 4 alleges violations of the limits on concentrations of pollutants in discharges incorporated into ECI‘s pretreatment permit pursuant to
Wis. Admin. Code § NR 261.22(2) (Sept., 1997) . - Claim 5 alleges that ECI failed to notify the City of substantial changes in the character of ECI‘s discharges, thereby violating
Wis. Admin. Code § NR 211.15(6) (Oct., 2002) . - Claim 7 alleges that ECI operated its facility “in ways inconsistent with the approved plans,” in violation of
Wis. Stat. § 281.98 . - Claim 8 alleges that ECI neglected its obligations as a centralized waste treater under
Wis. Admin. Code § NR 211.16(3) (Oct., 2002) and “improperly accepted wastes they were incapable of properly treating, and wastes reasonably expected to cause exceedances of the City‘s effluent limits.” - Claim 9 alleges that the defendants failed to take representative samples of their effluent to assess compliance with their permit limits in violation of
Wis. Admin. Code § NR 211.16(4) . Claim 10 alleges that ECI violated Wis. Admin. Code § NR 211.16(5) (Oct., 2002) , which requires centralized waste treaters to submit to the City semi-annual reports containing information about wastewater treated and discharged into the City‘s treatment system. It alleges that ECI‘s reports from the second half of 2001 and the first half of 2002 were incomplete because the reports omitted required information, including “the name and address of each waste‘s generator, the volume and date of arrival of each wastewater; and the applicable pretreatment standards.”- Claim 11 alleges that the defendants “failed to characterize the waste generated by treatment of the waste . . . in violation of
Wis. Stat. § 291.21 .” - Claim 12 alleges that ECI disposed of hazardous waste at a landfill not licensed to accept such waste, contrary to the requirements under
Wis. Stat. § 291.21(9) . - Claim 13 alleges that that the defendants violated the prohibition on operating a hazardous waste facility without an operating license pursuant to
Wis. Stat. § 291.25(2)(b) by storing hazardous waste. - Claim 14 alleges that the defendants failed to properly label containers used for storage of hazardous waste. The State alleges that this violated
Wis. Stat. § 291.21(3) andWis. Admin. Code § NR 615.05(4)(a)5 (May, 1998) .
¶ 39. None of the alleged violations is premised upon a showing of harm. Rather, they are regulatory violations for which the defendants are liable regardless of whether harm results. This is an important difference with nuisance. Harm is essential to nuisance, and no cause of action for nuisance may lie absent some allegation of harm. With respect to the claims here, no
40. The breadth of nuisance is so great that we must narrowly construe the actions that we analogize to nuisance, lest we render the Village Food test a nullity because “present causes of action of all sorts assessed under this test will only have to be compared generally... in order to invoke the constitutional protection to a trial by jury.” Vill. Food, 254 Wis. 2d 478, ¶ 46 (Wilcox, J., concurring and dissenting). Similar to the lead opinion in McGrew, we determine that “the class of actions categorized as ‘nuisances’ [is] simply too broad to be analogized to” the present cause of action. McGrew, 285 Wis. 2d 519, ¶ 25.
41. ECI has proffered no other cause of action at statehood as an essential counterpart to the causes of action here. Similarly, the State maintains that there were no other causes of action at statehood that are essential counterparts to the regulatory violations at issue here. Finally, in our own research we have found no causes of action at statehood sufficiently analogous to conclude that the State‘s regulatory claims existed, were known, or were recognized at common law in 1848.9
not render ordinances analogous to common law nuisance. Further, the concurrence/dissent does not provide an argument that violations of such ordinances were subject to jury trial in 1848. See concurrence/dissent, ¶ 108 n.23.
IV. CONCLUSION
43. In sum, applying the Village Food test, we determine that the claims asserted in the State‘s com-
44. 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. Vill. Food, 254 Wis. 2d 478, ¶ 16.
45. We also note that ECI raised two additional issues on appeal. It alleged insufficiency of the evidence and an erroneous exercise of discretion in assessing statutory forfeitures. In its certification the court of appeals stated, “[w]e are satisfied that these arguments can be addressed under existing law.” We agree. Accordingly, we remand the case to the court of appeals for consideration of ECI‘s arguments regarding sufficiency of the evidence and erroneous exercise of discretion in assessing statutory forfeitures.
By the Court.---The judgment and order of the circuit court are affirmed and the cause is remanded to the court of appeals.
46. SHIRLEY S. ABRAHAMSON, C.J. (concurring). I join Justice Bradley‘s opinion.
47. I write separately to add that I would not remand to the court of appeals the questions of the sufficiency of evidence and the circuit court‘s exercise of discretion.
49. The court of appeals does not certify, and this court does not take jurisdiction over, discrete legal questions within the appeal. See
50. For the reasons set forth, I write this separate concurrence.
51. DAVID T. PROSSER, J. (concurring in part, dissenting in part). This case is before the court on certification by the court of appeals, pursuant to
53. ECI Special Waste Services, Inc. (ECI) is a “centralized waste treater” that, by permit, collects wastewater from industrial customers, processes the wastewater to reduce the concentrations of certain pollutants, and discharges the processed water via sanitary sewer into the City of Fond du Lac‘s (the City) municipal wastewater treatment plant. William and Jeffrey Schweda (the Schwedas) are co-owners of ECI. The State sued ECI and the Schwedas (collectively, ECI) for violations of the terms of the company‘s permit, as well as violations of requirements imposed by the state statutes and administrative code. In its prayer for relief, the State sought mainly forfeitures under various provisions of the
54. When ECI demanded a jury trial, the State moved to strike the jury demand. The Circuit Court for Fond du Lac County, Peter L. Grimm, Judge, granted the State‘s motion, reasoning that ECI failed to show that any of the causes of action in this case satisfied either prong of the test for entitlement to a jury trial set forth in Village Food & Liquor Mart v. H&S Petroleum, Inc., 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177. Thereafter, the case was tried to the court, and the court found ECI liable for some but not all violations alleged in the complaint.
55. ECI appealed, alleging that the circuit court erred in denying its request for a jury trial. The court of appeals certified the case to us with the following question: “Under the test set forth in Village Food & Liquor Mart v. H&S Petroleum, Inc., 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177, does the constitutional
56. This question requires us to apply the test set forth in Village Food, which provides:
[A] party has a constitutional right to have a statutory claim tried to a jury when: (1) the cause of action created by the statute existed, was known, or recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848; and (2) the action was regarded at law in 1848.
Village Food, 254 Wis. 2d 478, ¶ 16.
57. Applying this test, I conclude that civil defendants have a constitutional right to trial by jury for certain categories of environmental claims that were recognized as public nuisance actions at common law. Specifically, in this case ECI had a constitutional right to a civil jury trial on claims 1, 4, 5, 7, and 12 because these claims meet the Village Food test. These claims are of the same nature as public nuisance actions at common law, which were regarded as actions at law in 1848. They are similar to public nuisance actions because they seek to punish activity that causes harm to public health or public property, especially the waters of the state. Although the harm addressed in some environmental laws is not always of the same magnitude as the harm required at common law, the harm is measurable, tangible, and serious because it affects the integrity of our land and water. The harm addressed in these five claims is direct and
58. The right to civil jury trial in Wisconsin is “inviolate,” which means that the legislature may not diminish the right as it existed in 1848. The legislature, however, may expand the right to jury trial by statute. Consequently, judicial interpretation of the constitutional right to a civil jury trial under
59. Claims 3, 8, 11, 13, and 14 are not of the same nature as public nuisance at common law. They involve ECI‘s improper acceptance or storage of waste, including hazardous waste. These claims attempt to head off the improper disposal of waste by prohibiting the improper acceptance or storage of waste. Hence, the harm to water or land is contingent upon disposal. The harm may be probable, but it is not direct and immediate.
61. Even though the legislature has provided the option for criminal prosecution of violations alleged in claims 3, 8, 9, 10, 11, 13, and 14, ECI did not have a constitutional right to a jury trial on these claims, as long as they were prosecuted civilly. Claim 6 was dropped by the State.
62. I would affirm the findings and conclusions of the circuit court with respect to claims 3, 8, 9, 10, 11, 13, and 14 and remand the cause to the court of appeals for consideration of ECI‘s other objections to the judgment on these claims.3 I would reverse the findings and conclusions of the circuit court with respect to claims 1, 4, 5, 7, and 12 to give ECI a jury trial on these claims.
BACKGROUND
63. In 1998 Timothy Miller (Miller) founded ECI, a “centralized waste treater” within the meaning of
64. In 1999 Miller hired William Schweda as a salesman and compensated him in part with ECI stock. In July 2001 Miller sold his remaining shares of ECI to William Schweda‘s brother, Jeffrey. Ownership of ECI was therefore transferred entirely to William and Jeffrey Schweda, but the Schwedas retained Miller to provide consulting services.
65. In January 2002 the City experienced an upset at its wastewater treatment plant, causing the City to exceed the City‘s discharge limits under its permit for oxygen-consuming organic waste and total suspended solids.5 As part of a broad DNR audit of the City‘s
66. In March/April 2002 the City experienced another upset causing another violation of its permit.
67. On May 17, 2002, the DNR served the City with a Notice of Violation, after which the City began a program of collecting and testing samples from ECI.
68. On August 21, 2002, the City revoked ECI‘s permit on the following grounds: (1) ECI made unlawful discharges into the City‘s sewer system; (2) ECI repeatedly and intentionally falsified sampling and monitoring data; (3) ECI failed to comply with several monitoring and reporting requirements and/or failed to retain records of such monitoring; (4) ECI failed to report changes in the content and volume of wastewater ECI was discharging into the City‘s system; (5) ECI caused the City to violate the terms of its permit on one and possibly more occasions; (6) on several occasions, ECI discharged wastewater into the City‘s system far in excess of its permit limits for copper, cyanide, lead, mercury, oil, grease, and zinc; and (7) ECI adjusted the discharge of wastewater, process water, and/or mixed waste streams with the intention of diluting a discharge.
69. A year later, on September 11, 2003, the State sued ECI, alleging violations of the terms of the City permit, as well as violations of requirements imposed by the state statutes and state administrative
70. Claim 1. The State alleged that ECI caused the City to exceed the discharge standards under its permit and therefore violated
71. Claim 2. The State did not appeal the circuit court‘s dismissal of this claim.
72. Claim 3. The State alleged that ECI accepted waste streams that it was not permitted to accept. Under
73. Claim 4. The State alleged that ECI exceeded its discharge limits.
74. Claim 5. The State alleged that ECI failed to notify the City of substantial changes in its discharges.
75. Claim 6. The State dropped claim 6 in its amended complaint.
76. Claim 7. The State alleged that ECI failed to comply with approved plans that are required under
77. Claim 8. The State alleged that ECI failed to implement proper waste acceptance procedures and, as a result, accepted wastes it was incapable of properly treating and wastes reasonably expected to cause exceedances of the City‘s effluent limits. This failure resulted in a violation of
78. Claim 9. The State alleged that ECI failed to adequately monitor its effluent.
79. Claim 10. The State alleged that ECI failed to submit complete semi-annual reports.
80. Claim 11. The State alleged that ECI failed to characterize hazardous waste.
81. Claim 12. The State alleged that ECI improperly disposed of the hazardous waste. Under
82. Claim 13. The State alleged that ECI operated a hazardous waste facility without an operating license pursuant to
83. Claim 14. The State alleged that ECI illegally handled hazardous waste.
84. Claim 15. The State did not appeal the circuit court‘s dismissal of this claim.
85. Based on these claims, the State sought, among other things, forfeitures under
86. ECI demanded a jury trial, and the State moved to strike. The circuit court granted the State‘s motion, reasoning that ECI failed to show the causes of action in this case satisfied either prong of the test for entitlement to a jury trial set forth in Village Food. The case went to trial, and the circuit court found ECI liable for 529 violations alleged in the amended complaint.11 The circuit court entered judgment for the State against ECI in the amount of $365,373.54.12
STANDARD OF REVIEW
88.
ANALYSIS
A. The Constitutional Right to a Civil Jury Trial and the Village Food Test
89. Trial by jury is a highly valued attribute of American government. It was regarded by the founders as “an essential bulwark of civil liberty.” Galloway v. United States, 319 U.S. 372, 397 (1943) (Black, J., dissenting in part, concurring in part). In Jacob v. New York City, 315 U.S. 752 (1942), Justice Murphy cautioned:
The right of jury trial in civil cases at common law is a basic and fundamental feature of our system of
federal jurisprudence which is protected by the Seventh Amendment . A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts.
Id. at 752-53. The
91. The phrase “shall remain inviolate” does not extend the right of trial by jury; rather, it preserves the right in civil cases as it existed at the time our constitution was adopted. It is important to note that in 1848, as now, not all civil matters were tried to a jury. “Issues in actions at law were so tried, with some exceptions; issues in suits in equity were not, unless the chancellor in his discretion sent an issue to a jury for an advisory verdict.” James Fleming, Jr., Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655, 655 (1962–63). The
phrase “clearly indicates that non-statutory causes of action at law, where a jury trial was guaranteed before the passage of the state constitution, would continue to have a guaranteed right to a jury trial attached even after the passage of the constitution.” Village Food, 254 Wis. 2d 478, ¶ 10.¶ 92. The question of a constitutional right to a civil jury trial becomes murkier when statutory causes of action are involved.17 Statutory causes of action are by definition not common law causes of action; however, this court has declined to interpret the
¶ 93. In State v. Ameritech Corp., 185 Wis. 2d 686, 517 N.W.2d 705 (Ct. App. 1994), the court of appeals set forth a two part test to determine whether a party has a constitutional right to have a statutory claim tried to a jury: “(1) the statute codifies an action known to the common law in 1848; and (2) the action was regarded as at law in 1848.” Id. at 690. In Village Food, we expanded upon the first prong of the test, finding that it resulted in too narrow an interpretation of our Constitution. We restated the test as follows:
[A] party has a constitutional right to have a statutory claim tried to a jury when: (1) the cause of action created by the statute existed, was known, or recognized at common law at the time of the adoption of the
Wisconsin Constitution in 1848; and (2) the action was regarded as at law in 1848.
¶ 94. Three years later, the Village Food test was applied to a motorist‘s demand for a 12-person jury in a civil forfeiture trial for speeding. Dane County v. McGrew, 2005 WI 130, 285 Wis. 2d 519, 699 N.W.2d 890. We concluded that the motorist had a constitutional right to a jury trial of six persons as existed for certain offenses in 1848, even though we could find no practical counterpart for speeding at common law. The majority determined that the court should not focus narrowly on individual traffic violations but rather on whether “rules of the road” existed at common law at the time the
B. Application of the Village Food Test
¶ 95. In this case, the State sued ECI, alleging violations of the Wisconsin Statutes and the Wisconsin Administrative Code. It is thus necessary to apply the Village Food test to the State‘s causes of action to determine whether ECI had a constitutional right to have the State‘s claims tried to a jury. The analysis begins with the first prong of the Village Food test to resolve whether the causes of action in this case existed, were known or recognized at common law at the time of the adoption of the
1. First Prong of the Village Food Test
¶ 96. The inquiry under the first prong requires that we examine the statutory causes of action in this
¶ 97. The State alleged violations of requirements imposed by the Wisconsin Statutes and by the Wisconsin Administrative Code, namely certain provisions in
¶ 98.
¶ 99.
establish, under
s. 283.55(2), Stats. , the responsibilities of industrial users and of publicly owned treatment works [POTW] in preventing the discharge into publicly owned treatment works of pollutants which will interfere with the operation of the POTW, which willpass through the POTW treatment works insufficiently treated, or which will impair the use or disposal of POTW sludge.
¶ 100. The court must decide whether causes of action brought under these chapters existed, were known or recognized in 1848. ECI argues that these causes of action were cognizable in 1848 as common law nuisance actions. The court of appeals certified the case to us with a question that implicitly asked us to compare the causes of action in this case to common law nuisance. Thus, our inquiry focuses on whether the statutory causes of action in this case are of similar nature or are essentially counterparts to the common law nuisance action.19
¶ 101. At common law, nuisances were of two types: public or common nuisances and private nuisances. The historical definition of a public nuisance was very broad and “came to include ‘any act not warranted by law, or omission to discharge a legal duty, which inconveniences the public in the exercise of rights common to all Her Majesty‘s subjects.‘” William L. Prosser, Handbook of the Law of Torts § 86, at 572 (4th ed. 1971) (quoting Stephen, General View of the Criminal Law of England 105 (1890)). William Black-
This court provided a contemporary definition of public nuisance in Physicians Plus v. Midwest Mutual Insurance Co., 2002 WI 80, ¶ 2, 254 Wis. 2d 77, 646 N.W.2d 777: “[A public nuisance is] a condition or activity which substantially or unduly interferes with the use of a public place or with the activities of an entire community.”
¶ 103. In sum, private nuisances involve injuries to individual property, and public nuisances involve injuries to the properties of mankind. Attorney-Gen. v. Sheffield Gas Consumers’ Co., (1853) 43 Eng. Rep. 119, 125. Private nuisances were brought at the suit of the individual, while public nuisances were brought at the suit of the attorney general.22 George V. Yool, An Essay on Waste, Nuisance, and Trespass 85 (1863).
If any person shall obstruct or injure or cause or procure to be constructed or injured, any public road or highway, or common street or alley of any town or village, or any public bridge, causeway, public river, or other stream declared navigable by law; or shall continue such obstruction, so as to render the same inconvenient or dangerous to pass; or shall erect or establish any offensive trade, manufacture or business, or continue the same, after it has been erected or established to the common disturbance, annoyance, nuisance or detriment of the county, town, village, or neighborhood where the same may be erected or established; or shall in any wise obstruct or pollute any water course, lake, pool, marsh, or common sewer, or continue such obstruction or pollution, so as to render the same offensive or unwholesome to the county, town, village or neighborhood thereabout; every person so offending shall, upon conviction thereof, be fined not exceeding one hundred dollars; and every such nuisance may, by order of the circuit court before whom the conviction shall take place, be removed and abated by the sheriff of the proper county; and any inquest and judgment thereon had, under the provisions of any law authorizing a writ of ad quod damnum, shall be no bar to prosecution under this section.
Revised Code of Laws of Illinois, § 129, p. 150-51 (1827) (emphasis added).
¶ 105. In 1832 the Territory of Michigan authorized local officials to “take such measures as they may
¶ 106. In 1839 the Statutes of the Territory of Wisconsin contained a similar provision for preservation of the public health. The statute addressed “any unsound or putrid articles... likely to endanger the public health.” Statutes of the Territory of Wisconsin, § 5, p. 125 (1839). Failure to remove such articles resulted in a forfeiture. Id. There were also forfeitures for persons who destroyed dams or filled ditches or drains. Id., § 34, p. 355; § 44, p. 112.
¶ 107. In 1848 Wisconsin recognized actions for both public and private nuisances. Chapter 110 of the Wisconsin Revised Statutes of 1849 recognized actions for private nuisances, while chapter 26 recognized actions for public nuisances. See
¶ 108. The public nuisance statute reads:
The board of health may examine into all nuisances, sources of filth, and causes of sickness, and make such regulations respecting the same as they may judge necessary for the public health, and safety of the inhabitants; and every person who shall violate any order or regulation, made by any board of health, and duly published agreeably to the provisions of this chapter, shall be deemed guilty of a misdemeanor, and
punished by a fine not exceeding one hundred dollars, or by imprisonment in the county jail not exceeding three months.
Whenever any nuisance, source of filth, or cause of sickness shall be found on private property, the board of health shall order the owner or occupant thereof, at his own expense, to remove the same within twenty-four hours; and if the owner or occupant shall neglect to do so, he shall forfeit a sum not exceeding fifty dollars.
Thus, nuisances were prosecuted under the Wisconsin Statutes.
¶ 109. In determining whether the causes of action in the present case are similar to actions at common law, the appropriate focus is on public nuisance rather than private nuisance. Nonetheless, private nuisance cases may serve to illustrate the kind of injuries to land or water that were actionable at com-
The power “to prevent or abate nuisances“—that which occasions public hurt or inconvenience—is necessarily a very broad and comprehensive one.... It would hardly be questioned by any one if garbage, manure, or dead animals were found within the village, in the interest of good order, cleanliness, and public health the board of trustees would have power to abate such nuisances.... To this end it might provide for destroying them, instead of fouling the waters of a lake or stream of water with them, to be again cast up, to the prejudice of the public, or depositing them where they would create a new nuisance.
Section 4608 of the 1889 statutes provides for the enforcement of orders and regulations of any board of health: “Any person who shall wilfully violate, any law relating to the public health, or any order or regulation of any board of health, lawfully made and duly published, shall be punished by imprisonment in the county jail, not more than three months, or by a fine not exceeding one hundred dollars.” Sandborn & Berryman Ann. Stats. of Wis., § 4608, p. 2317 (1889).
¶ 110. The causes of action in this case, dealing with water pollution and hazardous waste, are based upon what can be fairly characterized as environmental statutes. Scholarly commentary recognizes the link between modern statutory environmental law and the common law of nuisance. As one commentator has noted, “The deepest doctrinal roots of modern environmental law are found in principles of nuisance.” William H. Rodgers, Jr., Handbook on Environmental Law § 2.1, at 100 (1977). The Seventh Circuit in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 101 F.3d 503 (7th Cir. 1996), acknowledged that the “interests [of environmental statutes] overlap to a great extent the interests that nuisance law protects.” Id. at 505. Other commentators have noted that “[w]hen you go back to the early history of environmental law, the one substantive area that you would want to turn to more than any other would be the common law of nuisance.” Richard A. Epstein, Regulation—And Contract—In Environmental Law, 93 W. Va. L. Rev. 859, 862 (1990-91).
¶ 111. Yet another commentator has noted, “Because of its flexibility, common law nuisance continues to play a vital role in complementing statutory environmental enforcement tools.... Environmental harm is the quintessential public nuisance. In fact, modern environmental and energy statutes are codifications of the common law of public nuisance.” Matthew F. Pawa & Benjamin A. Krass, Behind the Curve: The National
¶ 112. The Wisconsin Legislature has formally adopted this principle by labeling the violations of the environmental statutes at issue in this case “a public nuisance.”
¶ 113. This authority supports the conclusion that, on a general level, the common law of nuisance is a “forerunner” to modern environmental statutory law. Of course, there are distinctions between the common
¶ 114. This distinction is not significant enough to invalidate the analogy between the common law of public nuisance and modern environmental statutory law. Harm is a key element of public nuisance; thus some environmental claims do not warrant a jury trial because these environmental statutes are largely preventative and seek to regulate conduct in which the resulting harm is neither direct nor immediate. Claims under other environmental statutes do warrant a jury trial because these environmental statutes proscribe conduct in which the resulting harm is direct and immediate.28 In this case, then, the task is to analyze
¶ 115. In its first claim, the State alleged that ECI violated
¶ 116. There is similarity in this claim to the common law public nuisance claim in People v. Corporation of Albany, 11 Wend. 539 (N.Y. 1834). In Corporation of Albany, the corporation of the city of Albany was charged by indictment and found guilty by a jury of:
permitting... the basin in the Hudson river, at the termination of the Erie Canal, to be foul, filled and choked up with mud, rubbish, and dead carcas[s]es of animals; whereby the citizens were not only deprived of the benefit and advantage of using the water for the convenience of themselves and families, but the mud... became offensive and nauseous, corrupting the water, and causing noisome and unwholesome smells,
infecting the air to the damage and common nuisance of the citizens residing in the vicinity and those passing and re-passing the basin.
Id.
¶ 117. The decision speaks of the water being “corrupted” and that the water became “unfit for drinking or culinary purposes.” The court said a “common nuisance... seems to be an offense against the public.” Id. at 543.
¶ 118. A more vivid case of discharging wastewater came out of Indiana:
[Taylor] was charged with urinating in a spring of water near a public highway, out of which many persons in the vicinity, and travelers along the road, were accustomed to use water, thereby rendering the spring unfit for use... to the obstruction of the free use of the water thereof by the citizens of the State. The information was quashed on the ground that it did not charge a public offense.
State v. Taylor, 29 Ind. 517, 517 (May Term, 1868). The Indiana Supreme Court reversed, saying:
Our statute, perhaps, gives as accurate a definition of the term nuisance, as understood at common law, as can be found elsewhere: “Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property. If the injury were limited to an individual, it gave a private right of action; if it affected the public, it was the subject of a public prosecution. That the present information is within the common law definition is, we think, recognized in Sloan v. The State, 8 Ind. 312. The motion to quash should have been overruled.
¶ 120. The allegations in claim 1 are of similar nature. Like the corporation in Corporation of Albany, ECI allegedly discharged wastewater into the City‘s treatment plant that, in essence, “fouled, filled, and choked up” the City‘s wastewater treatment plant with surfactant-laden wastewater that destroyed valuable microbes. Although the State in claim 1 did not allege harm that caused sickness to inhabitants, it did allege that discharged water caused upsets at the City‘s treatment plant. This allegation of direct harm is sufficient to analogize this claim to the common law of nuisance. Furthermore, the legislature has reinforced the serious nature of this claim by providing the option for criminal prosecution of violations alleged in this claim. See
¶ 121. Claims 4, 5, and 7 are also similar to the public nuisance claims in Corporation of Albany, Luning, and Taylor because they involve allegations of illegal discharge of wastewater, which results in unauthorized pollution of the City‘s sewer system. Again, although the State does not allege harm of the same magnitude required at common law, the State does
¶ 122. In claim 4 the State alleged that ECI exceeded its discharge limits of concentrations of certain pollutants. Specifically, the State alleged that ECI violated the oil and grease, copper, zinc, lead, and cyanide limits, meaning that ECI discharged these pollutants into the sewer system. The exceedance of discharge limits is a direct harm to the City‘s sewer system and was likely to cause further harm, such as an upset described in claim 1.
¶ 123. In claim 5 the State alleged that ECI failed to notify the City of any substantial change in the character of the pollutants in its discharge, namely high concentrations of phosphorous, oxygen consuming organic waste, surfactant-laden waste, and wastes with high concentrations of metals. To prevail on this claim, the State was required to prove that ECI‘s discharges contained these unauthorized pollutants. Failure to notify the City of a substantial change in the character
¶ 124. In claim 7 the State alleged that ECI failed to comply with approved plans by discharging water without adequately treating it, operating without a flow meter or sampler, discharging wastewater without passing through the flow meter, discharging wastes and sludge through the truck bay manhole, accepting unauthorized wastes, and following improper waste acceptance procedures. This broad claim also included allegations of direct harm in the form of unauthorized pollution. For example, discharging waste without adequately treating it and discharging wastes and sludge through the truck bay manhole involved direct pollution of the City‘s sewer system.
¶ 125. All three claims involved unlawful discharge of wastewater and therefore alleged direct harm of pollution to public resources. This is the essence of public nuisance.
¶ 126. Claim 12 is also similar to the common law of public nuisance. Claim 12 dealt with the improper disposal of hazardous waste. In claim 12 the State alleged that ECI disposed of hazardous waste at a non-hazardous, solid waste landfill not authorized to accept such waste. This is analogous to dumping waste.
¶ 127. This claim is similar to the claim in State v. Buckman, 8 N.H. 203 (1836). In Buckman, the defendant was indicted for throwing into a well the carcass of an animal which tainted and corrupted the water used by a family. The court held that this act constituted a public nuisance because “water infected with the noisome particles and effluvia of a dead animal thrown into it, must partake of a character so poisonous and unwholesome as properly to come within this class of
¶ 128. Like the dead carcass in Buckman, the hazardous waste in this case was inappropriately handled and disposed of at an inappropriate site. The characterization of the waste as hazardous implies that it is also of a character so poisonous and unwholesome as to qualify as a sufficient analogy to the harm in Buckman. Hazardous waste is defined as “waste that—because of its quantity, concentration, or physical, chemical, or infectious characteristics—may cause or significantly contribute to an increase in mortality or otherwise harm human health or the environment.” Black‘s Law Dictionary 1584 (7th ed. 1999). By allegedly disposing of this waste at an improper site, ECI caused direct and immediate harm to human health and the environment.
¶ 129. Furthermore, claim 12 involves an alleged violation of
¶ 130. By contrast, although the legislature has provided the option to proceed criminally against violations alleged in claims 3, 8, 9, 10, 11, 13, and 14, these claims are not sufficiently similar to the common law of public nuisance to require a jury trial because they do not involve allegations of direct and immediate harm. Any harm that may result under these claims is remote and speculative.
¶ 131. Claims 3, 8, 11, 13, and 14 involve ECI‘s improper acceptance or storage of waste, including hazardous waste. These claims attempt to head off the improper disposal of waste by prohibiting the improper
¶ 132. In claim 3 the State alleged that ECI failed to notify the City that it was accepting new types of categorical waste, such as organic chemical wastewater, pharmaceutical wastewater, surfactant-laden wastewater, phosphorus-laden wastewater, unknown wastewater, and septage. The State alleged that ECI‘s treatment system was not designed to properly treat any of the wastes. In claim 8 the State alleged ECI failed to implement proper waste acceptance procedures and as a result, “improperly accepted wastes [it] was incapable of properly treating, and wastes reasonably expected to cause exceedances of the City‘s effluent limits.” In claim 11 the State alleged that ECI‘s treatment of certain wastewater generated a hazardous waste and that ECI failed to characterize this waste as hazardous. In claim 13 the State alleged that ECI operated a hazardous waste facility without an operating license. In claim 14 the State alleged that ECI illegally handled hazardous waste by failing to label the tank as containing hazardous waste and by leaving the tank open.
¶ 133. In sum, these claims allege conduct that could lead to harm, as opposed to claims 1, 4, 5, 7, and 12 that alleged conduct that did lead to direct and immediate harm in the form of unauthorized pollution.
¶ 134. Claims 9 and 10 are also not similar to a public nuisance. These claims involve purely regulatory administrative provisions in the sense that they allege only a failure to sample discharge or to submit paperwork. Purely regulatory requirements such as sampling discharge or submitting semi-annual reports are not the type of actions that would have been recognized as
¶ 135. To illustrate, the State alleged in claim 9 that ECI failed to undertake sufficient sampling and analysis of its effluent to assess whether it complied with its permit limits. The complaint alleged that “on at least 260 occasions between July 2001 and August 2002, defendants failed to take representative samples to assess compliance with permit limits.” By implication, defendants could have taken representative samples on approximately 150 occasions during this period. The failure to take other samples would not in itself have caused harm to the municipal sewer system. Thus, the State‘s cause of action does not allege sufficient harm to be analogous to a common law nuisance action. It is a purely regulatory requirement that does not require a trial by jury.
¶ 136. In claim 10, the State alleged that ECI submitted incomplete semi-annual reports to the City. Specifically, the State alleged that the reports provided sampling results data and flow volumes but failed to contain other required information, such as the name and address of each waste‘s generator, the volume and date of arrival of each wastewater, and the applicable pretreatment standards. This claim does not warrant a civil jury trial. Whether ECI‘s failure to submit complete semi-annual reports caused any harm is too speculative.
¶ 137. Claims 1, 4, 5, 7, and 12 are of similar nature to a public nuisance because they involve allegations of harm that, although not of the same magnitude required at the common law, is direct and immediate, and not speculative or remote. Furthermore, the legislature reinforced the seriousness of the violations
2. Second Prong under the Village Food Test
¶ 138. Under the second prong of the Village Food test, the court must determine whether a public nuisance action was regarded as at law in 1848. Village Food, 254 Wis. 2d 478, ¶ 16.
¶ 139. Before the adoption of the constitution, “the line between law and equity (and therefore between jury and non-jury trial) was not a fixed and static one. There was a continual process of borrowing by one jurisdiction from the other.” Fleming, supra, at 658. This borrowing led to a very large overlap between law and equity. Id. Therefore, the historical inquiry into the character of the action in 1848 is a complicated one.
¶ 140. The difference between a court of common law and a court of equity is best summarized “by considering the different natures of the rights they are designed to recognize and protect, the different natures of the remedies which they apply, and the different natures of the forms and modes of proceeding which they adopt.” Joseph Story, Commentaries on Equity Jurisprudence 19 (Isaac F. Redfield, addt‘l author, 9th ed. 1866) (1834)). Historically, courts of equity were able to administer remedies for rights that “courts of common law d[id] not recognize at all; or, if they d[id] recognize them, they le[ft] them wholly to the conscience and good-will of the parties.” Id. at 21. In
¶ 141. The State argues that public nuisance actions were actions only in equity in 1848. The State cites numerous cases for this proposition, such as
¶ 142. The State‘s arguments do not answer ECI‘s arguments that public nuisance actions were considered criminal actions (actions at law) long before 1848 and before the equitable remedy of injunction. Case law and other historical sources support ECI‘s arguments. To illustrate, Blackstone stated that “no action lies for a public or common nuisance, but an indictment only.” 3 Blackstone, supra, at 219. Blackstone also wrote that public nuisances are “punishable by public prosecution, and subject to fine according to the quantity of the misdemeanor.” 4 Blackstone, supra, at 167.
¶ 143. The
¶ 144. In Attorney General v. Chicago & Northwestern Railway Co., 35 Wis. 425 (1874), this court noted that a public nuisance was historically the subject of criminal jurisdiction and was a proceeding at law. The court noted the following:
A public nuisance being the subject of criminal jurisdiction, the ordinary and regular proceeding at law is
by indictment or information, by which the nuisance may be abated, and the person who caused it may be punished. . . . Besides this remedy at law, it is now settled that a court of equity may take jurisdiction in cases of public nuisance, by an information filed by the attorney general. This jurisdiction seems to have been acted on with great caution and hesitancy.
Id. at 538 (quoting Georgetown v. Alexandria Canal Co., 37 U.S. 91, 97-98 (1838)).
¶ 145. Traditionally, “[c]ourts of equity ha[d] no jurisdiction over criminal proceedings, except that under certain circumstances, they w[ould] restrain a public nuisance.” James P. Holcombe, An Introduction to Equity Jurisprudence 13 (1846). Courts of equity would interfere, however, only when the court of common law would not afford an adequate and sufficient remedy. Denis G. Lubé, Equity Pleadings 6 (1846).32
¶ 146. This authority supports a holding that a public nuisance action was generally an action at law in 1848 and was sometimes an action in equity when a party sought injunctive relief. I therefore analyze the relief sought in this case to determine whether it would have been an action at law or an action in equity. See Village Food, 254 Wis. 2d 478, ¶ 33 (concluding that
¶ 147. In this case, the State did not proceed criminally against ECI, although it might have done so under
¶ 148. Finally, although the action in this case is civil, not criminal, that distinction is not dispositive. “The fact that one is undertaken in the civil context, rather than the criminal context, should not deprive the parties of a jury trial in this instance.” Village Food, 254 Wis. 2d 478, ¶ 29.
¶ 149. In short, a public nuisance action involving the type of forfeitures sought in this case was an action at law in 1848.
¶ 151. I concur with the majority‘s denial of a jury trial on claims 3, 8, 9, 10, 11, 13, and 14. I dissent from the majority‘s denial of a jury trial on claims 1, 4, 5, 7, and 12.
¶ 152. I am authorized to state that Justices JON P. WILCOX and PATIENCE DRAKE ROGGENSACK join this concurrence/dissent.
Notes
The Pennsylvania Commonwealth Court examined whether the defendants had a constitutional right to a jury trial for an environmental enforcement action in Commonwealth, Dep‘t of Envtl. Res. v. Wheeling-Pittsburgh Steel Corp., 348 A.2d 765 (Pa. Commw. Ct. 1975). The court examined Article 1, Section 6 of the Pennsylvania Constitution which states: “Trial by jury shall be as heretofore, and the right thereof remain inviolate.” The court commented that this language exists exclusively for the purpose of preserving jury trials as provided by common law. Ultimately the court concluded that “the constitutional right to a jury trial does not extend to respondent in these proceedings, which are wholly a creature of recent statutory law.” Id. at 768. ” ‘Effluent limitation’ means any restriction established by the department, including schedules of compliance, on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into waters of this state.”
Here, there are no allegations of harms to private property. Therefore the appropriate focus of our analysis is on whether the claims are analogous to public nuisance. On September 30, 2003, the State also sued the City of Fond du Lac, claiming that the City repeatedly violated its DNR permit by exceeding its effluent limits of harmful wastes into Lake Winnebago. The State alleged that the City failed to effectively monitor its industrial users and specifically pointed to its failure to effectively monitor ECI. The City and the State stipulated to a judgment on the same day and agreed to the following: (1) the City would pay the State $25,000; (2) the City would cooperate with the State in any enforcement action the State or the Department of Natural Resources might pursue against ECI; and (3) the City would continue with facilities planning and implement the selected alternative for upgrading its wastewater treatment facility.
Similarly, in State v. Buckman, 8 N.H. 203 (1836), the defendants threw an animal carcass into a well, infecting a family‘s water with “noisome particles and effluvia” and causing the family to partake of “poisonous and unwholesome water.” Id. at 205; concurrence/dissent, ¶ 127. The salient allegation in Buckman is not that the animal carcass was “inappropriately handled and disposed of at an inappropriate site,” as the dissent posits. Rather, it is that the inappropriate handling and disposal of the animal carcass caused harm. Here, harm is not necessary for any of the causes of action to lie.
Finally, Kilvington v. The City of Superior, 83 Wis. 222, 225-26, 53 N.W. 487 (1892), discusses the authority of the government to exercise its power “by ordinance, resolution, law, or vote” to “prevent or abate nuisances” by removing “garbage, manure, or dead animals” from the village and contracting for their cremation. The existence of such a power, however, does WPDES permit stands for “Wisconsin pollutant discharge elimination system permit” and “means a permit issued to a POTW [publicly owned treatment works] under
Id. at 420. Rather, the approach of the federal courts in interpreting the federal Constitution places emphasis on the character of the relief sought. “[C]haracterizing the relief sought is ‘more important’ than finding a precisely analogous common-law cause of action in determining whether the[W]e need not decide the question. As Pernell v. Southall Realty, 416 U.S. [363], at 375 [(1974)], cautioned, the fact that the subject matter of a modern statutory action and an 18th-century English action are close equivalents “is irrelevant for
Seventh Amendment purposes,” because “that Amendment requires trial by jury in actions unheard of at common law.”
Our approach in interpreting this state‘s constitution is different, as we have made clear in McGrew and in Village Food. We determine whether (1) the cause of action existed, was known, or was recognized at common law in 1848 and (2) whether the cause of action was regarded as at law in 1848. McGrew, 285 Wis. 2d 519, ¶ 18; Vill. Food, 254 Wis. 2d 478, ¶ 16.
We are not bound by the federal courts’ interpretation of the federal Constitution in construing our own constitution. Additionally, we note that the
In sum, a nuisance exists if there is a condition or activity that unduly interferes with the private use and enjoyment of land or a public right. If the interest invaded is the private use and enjoyment of land, then the nuisance is considered a private nuisance. Conversely, if the condition or activity interferes with a public right or the use and enjoyment of public space, the nuisance is termed a public nuisance.
Sandborn & Berryman Ann. Stats. of Wis., § 892, p. 519 (1889) (emphasis added). Paragraph 20 gives a village board the power “to appoint a board of health, which shall have all the powers of such boards under the general laws of the state... to declare what are nuisances, are, and to prevent or abate the same... to prevent the obstruction or retarding of the flow of water... or the putting of anything into the same which may be prejudicial to the health of the village.” This section is cited in Kilvington v. City of Superior, 83 Wis. 222, 53 N.W. 487 (1892), where the court said:20. To appoint a board of health, which shall have all the powers of such boards under the general laws of the state; to provide hospitals and regulate the burial of the dead, and the return of bills of mortality; to declare what are nuisances, and to prevent or abate the same; to require the owner or occupant of any grocery, cellar, tallow chandler‘s shop, soap factory, tannery, stable, barn, privy, sewer, or other unwholesome or nauseous house, building or place, to remove or abate the same, or to cleanse it as often as may be deemed necessary for the public health; to direct the location and management of slaughter houses subject to the provisions of section one thousand four hundred and eighteen, and to prevent the erection, use or occupation of the same, except as authorized by them; to prevent persons from bringing, depositing or leaving within the village any putrid carcass, or other unwholesome substance; to require the owners or occupants of lands to remove dead animals, stagnant water, or other unwholesome substance from their premises, and to provide for the cleansing and removal of obstructions from any river, stream, slough or water course within the limits of the village, and to prevent the obstruction or retarding of the flow of water therein, or the putting of anything into the same which may be prejudicial to the health of the village.
For cases in which the State had a public nuisance abated, see Douglass v. State, 4 Wis. 403 [*387] (1854), and Stoughton v. State, 5 Wis. 291 (1856).
For a discussion of nuisance abatement as legal or equitable, see James Williamson, Remedies—Nuisance Abatement as Legal or Equitable, 39 Marq. L. Rev. 163 (1955-56). See also C.C. Langdell, A Brief Survey of Equity Jurisdiction, 1 Harv. L. Rev. 111 (1887-88).
As to public nuisance, the remedy by injunction may exist in favor of the state. Its use is somewhat complicated by the traditional rule that equity will not enjoin a crime as such, where the effect will be to deprive the defendant of his constitutional safeguards; but this will not prevent the injunction where the criminal penalty is inadequate to prevent the damage threatened by the continuation of the nuisance, and it has been held that there is no double jeopardy in such a remedy.
(footnotes omitted).