Tharp v. Vill. of Roberts

1

Peter C. Tharp, Plaintiff-Appellant, v. Village of Roberts, Village Board of Roberts, Willard Moeri, Katy Kapaun, Mary Shermon, Shawn Dakovich, Cheryl Johnson, Chuck Pizzi, Randy Waughtal and Thomas Mann, Defendants-Respondents.

No. 2021AP2209

Court of Appeals of Wisconsin, District III

November 7, 2023

Not recommended for publication in the official reports.

APPEAL from an order of the circuit court for St. Croix County No 2020CV266: EDWARD F. VLACK, III, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

GILL J.

¶1 Peter C. Tharp sued the Village of Roberts and various other defendants (collectively, the Village Board), seeking declaratory judgment and a writ of mandamus. Tharp's claims were based on the Village Board's failure to "issue any municipal ordinance violations or citations regardless of parallel state statutes[,] effectively bypass[ing]" and "abolishing" the Village's municipal court. Later, in the context of his declaratory judgment claim, Tharp argued that the Village Board had violated separation of powers principles "by ceasing enforcement of its municipal ordinances."

¶2 The circuit court granted the Village Board's motion to dismiss Tharp's mandamus claim, and, later, granted summary judgment in favor of the Village Board on Tharp's declaratory judgment claim. The court concluded that, under Vretenar v. Hebron, 144 Wis.2d 655, 663, 424 N.W.2d 714 (1988)-a mandamus case-the Village Board's decision not to enforce municipal ordinances was discretionary and did not violate separation of powers principles. Thus, according to the court, Tharp's mandamus claim could not lie, and his declaratory judgment claim was barred as a matter of law. The court subsequently entered a final order affirming its prior orders dismissing the mandamus claim and granting summary judgment on the declaratory judgment claim, and Tharp now appeals from that order.

¶3 We conclude that Tharp's mandamus claim is moot because the municipal court was lawfully abolished prior to this appeal. Further, we conclude that the circuit court properly granted summary judgment in favor of the Village Board on Tharp's declaratory judgment claim. Under our supreme court's holding in Vretenar, the Village Board's decision not to enforce the municipal ordinances was discretionary. Because it was a discretionary decision declaratory judgment was not appropriate. Therefore, we affirm the court's order.

BACKGROUND

¶4 The relevant facts are undisputed.^[1] In 2004, the Village of Roberts established a municipal court. Tharp was elected in 2017 as a municipal court judge to a four-year term ending in April 2021.

¶5 In March 2019, in contemplation of abolishing the municipal court, the Village Board voted to "authorize[] the then Village Police Chief … to stop issuing citations for municipal ordinance violations, regardless of parallel state statutes, and to transmit any and all citations to St. Croix County Circuit Court by issuing only citations for violations of adopted parallel state statutes." According to the minutes of the Village Board meeting, the Village attorney explained that the Village was "still required to pay the fees associated with the [municipal] court" until the Village Board could formally abolish the court, but that stopping the enforcement of ordinances "sen[t] the signal that [it was] planning to not continue the [municipal] court when the time c[a]me[]." The Village attorney also stated that he met with staff at the St. Croix County Circuit Court, who explained that they had "the ability to handle the capacity" of the Village Board's directive.

¶6 In August 2020, the Village Board unanimously voted to abolish the municipal court at the end of Tharp's then-current term. Tharp continued to receive his full municipal court judge salary until the court was abolished at the end of his term in April 2021.

¶7 In August 2020, Tharp filed suit against the Village Board seeking a writ of mandamus and declaratory relief. Specifically, Tharp requested that the circuit court issue an order requiring the Village Board "to immediately enforce municipal ordinance violations and cease any attempt to bypass" the municipal court. Further, Tharp sought a declaration that "municipal ordinance violations must be enforced by the [Village], and those violations be brought to the municipal court."

¶8 The Village Board filed a motion to dismiss both claims. The circuit court granted the motion with respect to the mandamus claim, but it denied the motion with respect to the declaratory judgment claim. Later, Tharp filed a motion for summary judgment on the declaratory judgment claim and argued that the Village Board had violated separation of powers principles and exceeded its authority. The court denied Tharp's motion for summary judgment, and it then granted summary judgment in the Village Board's favor, dismissing Tharp's declaratory judgment claim. See Wis. Stat. § 802.08(6) (2021-22).^[2]

¶9 Tharp now appeals. Additional facts will be provided below as necessary.

DISCUSSION

I. Mandamus claim

¶10 "A writ of mandamus is a discretionary writ that is issued to compel the performance of a particular act by a lower court or governmental officer or body." Klein v. DOR, 2020 WI.App. 56, ¶36, 394 Wis.2d 66, 949 N.W.2d 608. A writ of mandamus is properly issued only upon the showing of four prerequisites: "(1) a clear legal right; (2) a positive and plain duty; (3) substantial damages; and (4) the absence of any other adequate remedy at law." Id.; see also Voces De La Frontera, Inc. v. Clarke, 2017 WI 16, ¶11, 373 Wis.2d 348, 891 N.W.2d 803. "[T]he duty to act on the part of the government official must be 'clear and unequivocal'; a circuit court erroneously exercises its discretion by issuing such a writ when the duty to be performed requires the exercise of discretion." Klein, 394 Wis.2d 66, ¶36 (citation omitted).

¶11 On appeal, the Village Board argues that Tharp's mandamus claim is moot because the municipal court was abolished in April 2021.

¶12 As an initial matter, Tharp contends that the Village Board's mootness argument is "waived" because the Village Board did not raise this argument before the circuit court.^[3] Whether the Village Board raised the issue in the circuit court or not is immaterial to this particular appeal because, generally, a respondent may raise any argument that would support a lower court's action regardless of whether the argument was raised previously. See State v. Holt, 128 Wis.2d 110, 124-25, 382 N.W.2d 679 (Ct. App. 1985); superseded by statute on other grounds, Wis.Stat. § 940.225(7). "Furthermore, it is well-established law in Wisconsin that an appellate court may sustain a lower court's ruling 'on a theory or on reasoning not presented to the lower court.'" Blum v. 1st Auto & Cas. Ins. Co., 2010 WI 78, ¶27 n.4, 326 Wis.2d 729, 786 N.W.2d 78 (citation omitted). We also note that the mandamus claim was undisputedly not moot when the court granted the Village Board's motion to dismiss in January 2021 because the municipal court was not abolished until April 2021. Thus, we will consider the Village Board's mootness argument.

¶13 Mootness is a question of law we review de novo. Wisconsin State J. v. Blazel, 2023 WI.App. 18, ¶41, 407 Wis.2d 472, 991 N.W.2d 450. "An issue is moot when its resolution will have no practical effect on the underlying controversy. Because moot issues do not affect a live controversy, this court generally declines to reach them." Id., ¶42 (citation omitted).

¶14 Tharp's challenge to the circuit court's dismissal of his mandamus claim is indeed moot. His amended complaint requested an order requiring the Village "to immediately enforce municipal ordinance violations and cease any attempt to bypass" the municipal court, and on appeal, he asks us to "reverse the [circuit] court's decision." As mentioned earlier, the municipal court was abolished in April 2021. As such, even if we decided that the court erred as a matter of law by granting the Village Board's motion to dismiss Tharp's mandamus claim, our reversal would have no "practical effect on the underlying controversy." See id. (citation omitted). There would be no government official or body for us to direct action toward.^[4]

¶15 Still, Tharp asks this court to consider the merits of his mandamus claim. "We may … choose to address moot issues in 'exceptional or compelling circumstances.'" Portage County v. J.W.K., 2019 WI 54, ¶12, 386 Wis.2d 672, 927 N.W.2d 509 (citation omitted). Specifically, we may address a moot issue if at least one of five exceptions applies:

(1) the issue is of great public importance; (2) the issue involves the constitutionality of a statute; (3) the issue arises often and a decision from [the appellate] court is essential; (4) the issue is likely to recur and must be resolved to avoid uncertainty; or (5) the issue is likely of repetition and evades review.

Blazel, 407 Wis.2d 472, ¶42 (citation omitted).

¶16 Tharp focuses his arguments on exceptions one and five. According to Tharp, the first exception applies because "[o]ther municipalities could take similar action to that of the Village," and, therefore, the issue is "one of interest to … municipalities and municipal judges in Wisconsin." Similarly, Tharp cites the fifth exception, arguing that other municipalities can follow the Village's plan of abolishing a municipal court prior to appellate review, and thus escape that review.

¶17 With regard to the fifth exception, Tharp overlooks the fact that our supreme court has explained that the "'capable of repetition, yet evading review doctrine' is limited to situations involving 'a reasonable expectation that the same complaining party would be subjected to the same action ...