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09/26/83 CLASS OWNERS & LESSORS MULTIPLE FAMILY

September 26, 1983

THE CLASS OF OWNERS & LESSORS OF MULTIPLE FAMILY RESIDENTIAL BUILDINGS CONSTRUCTED IN THE CITY OF RACINE DURING OR AFTER 1963 WHICH CONTAIN FIVE OR MORE DWELLING UNITS PER BUILDING WHERE GARBAGE (REFUSE & SOLID WASTE) COLLECTION & REMOVAL INVOLUNTARILY NEVER EXISTED OR HAS BEEN INVOLUNTARILY DISCONTINUED: HENRY CARPENTER, REPRESENTATIVE MEMBER, PLAINTIFFS-RESPONDENTS,
v.
COMMISSIONER OF PUBLIC WORKS OF THE CITY OF RACINE, WISCONSIN, DEFENDANT-APPELLANT



Appeal from a judgment of the Circuit Court for Racine County Emmanuel J. Vuvunas, Judge.

Petition to Review Denied.

Scott, C.j., Voss, P.j., and Robert W. Hansen, Reserve Judge.

The opinion of the court was delivered by: Scott

This is an appeal from a judgment resulting from a class action suit finding that the Commissioner of Public Works for the City of Racine discriminated against various owners and lessors of multiple family residential buildings in the collection of solid waste. The issues on appeal in this case are many. As to the class certification, however, compliance with the notice of claim requirement of sec. 893.80, Stats., is dispositive. Because only Henry Carpenter satisfied the statutory notice requirements, we must reverse the order denying the defendant's motion to decertify the class. As to Carpenter's suit, because we conclude there was no denial of his right to equal protection, we also reverse the trial court's denial of the defendant's motion for a directed verdict.

In 1963, due to a lack of appropriations from the city council, Fred Larson, the Racine Commissioner of Public Works, decided not to provide solid waste collection services to buildings constructed during or after 1963 which contained five or more dwelling units per building. In 1976, the City of Racine, pursuant to Larson's direction, stopped solid waste collection at Carpenter's apartment building which contained eight dwelling units. Carpenter procured the services of a commercial waste collection service beginning in March of 1976. In early 1978, the Racine common council passed an ordinance which provided that no building containing five or more dwelling units would receive solid waste collection services.

On December 14, 1979, Carpenter presented a notice of claim to the city of Racine in the care of Anthony J. Schleffer, City Clerk. The notice of claim referred to Carpenter personally as a claimant and as a representative member of a class of parties having apartment buildings of five units or more. In August 1980, Carpenter filed suit personally and as representative member of the class. The defendant's motion to decertify the class was denied by the trial court.

A jury trial was held on August 8, 1982. The defendant moved for a directed verdict at the end of the plaintiffs' case on the grounds that there was no denial of equal protection. The trial court denied this motion. A special verdict was returned awarding the class $764,612 in damages.

The Commissioner of Public Works contends on appeal that certification of the class was improper because the class members, other than Carpenter, failed to file the requisite notice of claims under sec. 895.45, Stats. (1977). *fn1 He also argues that the trial court should have granted the defendant's motion for a directed verdict because there was no denial of Carpenter's constitutional right to equal protection as a matter of law. We agree.

Section 895.43, Stats. (1977), *fn2 requires that no action be brought or maintained against a governmental body or agency unless the claimant has filed a notice of claim as a step towards the recovery of a monetary claim. Rabe v. Outagamie County, 72 Wis. 2d 492, 497, 241 N.W.2d 428, 431 (1976). In Hicks v. Milwaukee County, 71 Wis. 2d 401, 238 N.W.2d 509 (1976), the supreme court applied this notice requirement to class action suits against a governmental body. In Hicks, a Huber prisoner sued Milwaukee county on behalf of himself and all similarly situated prisoners based upon a theory that the county's practice of overcharging prisoners resulted in unjust enrichment. The plaintiff filed a notice of claim against the county on behalf of himself and all members of the class. In dismissing the class action, the court held that "very person making a claim against a county must state the nature of the claim and the facts upon which it was founded in writing." Id. at 407, 238 N.W.2d at 513. The court further stated that "a document presenting multiple claims against a county must at the minimum identify the claimants and show that the claims are being made by their authority." Id.

Using the guidelines and rationale set down in Hicks, the plaintiffs' class action suit must fail. The notice of claim filed by Carpenter on December 14, 1979 does not meet the minimum standard for asserting claims against a governmental entity by a member of a class. Carpenter's notice of claim does not identify his fellow claimants, nor does it show that Carpenter is authorized to act on their behalf.

The plaintiffs attempt to distinguish Hicks by pointing out factual dissimilarities between the cases. We find no legal significance in these differences. We conclude it is a logical extension of Hicks to apply the notice of claim requirements to the class action in the present case.

Although the notice of claim is inadequate as to the class, it appears to be sufficient as to Carpenter's action individually. We, therefore, must consider the merits of the case as to Carpenter's claim.

At the close of the plaintiffs' case, the defendant moved for a directed verdict on the grounds that, as a matter of law, the Commissioner's actions regarding the suspension of garbage collection did not violate the constitutional right to equal protection. It is the duty of the trial court to decide constitutional issues as a matter of law. *fn3 Just v. Marinette County, 56 Wis. 2d 7, 24-26, 201 N.W.2d 761, 771-72 (1972); Weber v. State, 59 Wis. 2d 371, 381, 208 N.W.2d 396, 401 (1973). Because we find there was a rational basis for the Commissioner's action and no evidence that Carpenter was the victim of intentional, systematic or arbitrary discrimination, we conclude that the trial court erred when it denied the defendant's motion for a directed verdict.

In deciding whether Carpenter was denied equal protection of the laws, we must determine by what constitutional standard the actions of the Commissioner of Public Works should be tested. Initially, we must consider the case to determine whether multiple dwelling ownership is a suspect classification or garbage collection is a fundamental right. If a fundamental right or suspect classification is involved, the action will be subjected to a strict scrutiny and will survive an equal protection challenge only if it serves an important governmental objective that could not ...


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