Thomas F. Benson v. City of Madison , 376 Wis. 2d 35 ( 2017 )

2017 WI 65
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP2366
COMPLETE TITLE:
Thomas F. Benson, Mark Rechlicz, Mark Rechlicz
Enterprises, Inc., Robert J. Muranyi, RJM Pro
Golf Incorporation and William J. Scheer,
Plaintiffs-Appellants-Petitioners,
v.
City of Madison,
Defendant-Respondent.
REVIEW OF A DECISION OF THE COURT OF APPEALS
371 Wis. 2d 760, 886 N.W.2d 593
(2016 – Unpublished)
OPINION FILED: June 22, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 19, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Richard G. Niess
JUSTICES:
CONCURRED: KELLY, J. concurs
DISSENTED: ABRAHAMSON, J. dissents, joined by A.W. BRADLEY
J.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-petitioners, there were briefs
by Kevin J. Palmersheim, Cathleen A. Dettmann and Haley
Palmersheim, SC Middleton and oral argument by Kevin J.
Palmersheim.
For the defendant-respondent, there was a brief by
Catherine M. Rottier and Boardman & Clark, LLP, Madison, with
whom on the brief was Michael P. May and Doran E. Viste, City of
Madison Attorney’s Office. There was an oral argument by
Catherine M. Rottier and Paul Norman.
2017 WI 65
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP2366
(L.C. No. 2014CV180)
STATE OF WISCONSIN : IN SUPREME COURT
Thomas F. Benson, Mark Rechlicz, Mark Rechlicz
Enterprises, Inc., Robert J. Muranyi, RJM Pro
Golf Incorporation and William J. Scheer, FILED
Plaintiffs-Appellants-Petitioners,
JUN 22, 2017
v.
Diane M. Fremgen
Clerk of Supreme Court
City of Madison,
Defendant-Respondent.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an
unpublished decision of the court of appeals, Benson v. City of
Madison, No. 2015AP2366, unpublished slip op. (Wis. Ct. App.
Aug. 25, 2016), which affirmed the Dane County circuit court's1
judgment dismissing a lawsuit filed by the petitioners against
the City of Madison ("the City") pursuant to the Wisconsin Fair
Dealership Law ("the WFDL"), a statute that governs, among other
things, the termination or nonrenewal of specified types of
1
The Honorable Richard G. Niess presided.
No. 2015AP2366
business relationships. See generally Wis. Stat. ch. 135
("Dealership Practices") (2013-14).2
¶2 The City owns four public golf courses: Odana, Yahara,
Monona, and Glenway. For years, the City entered into
"operating agreements" ("Agreements") with the petitioners, four
"golf professionals" ("Golf Pros"), to oversee the clubhouse
operations at these courses.3 That is, while the City maintained
the physical golf courses, the Golf Pros performed varied tasks
such as collecting greens fees, hiring and managing attendants,
supervising golfing, operating the clubhouse and pro shop,
selling concessions, and giving lessons.4
¶3 In 2012 the City informed the Golf Pros that it would
not be renewing the Agreements. The Golf Pros subsequently
filed a lawsuit against the City, both alleging that the City
had failed to comply with the WFDL in ending the City's
relationships with them and seeking damages. The circuit court
below ultimately dismissed the lawsuit on summary judgment,
concluding that the relationships between the Golf Pros and the
2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
3
"Golf professional" is an appellation recognized by the
Professional Golfers' Association.
4
Technically speaking, one of the four Agreements at issue
in this case was entered into by the City and a corporation
owned by one of the Golf Pros. For simplicity, this opinion
will refer to this corporation by its sole shareholder, the Golf
Pro. We also note that a second corporation owned by another of
the Golf Pros is a petitioner on this appeal, but we will not
reference that entity further.
2
No. 2015AP2366
City did not constitute "dealerships" protected by the WFDL.
See Wis. Stat. § 135.02(3). The Golf Pros appealed, and the
court of appeals affirmed. Benson, unpublished slip op., ¶2.
¶4 On this appeal, we are asked to resolve two principal
questions: first, whether the WFDL applies to the City at all;
and second, whether the relationships between the Golf Pros and
the City are "dealerships" under the WFDL. Additionally,
assuming we answer both questions in the affirmative, the City
contends that the Golf Pros' lawsuit is time-barred and should
be dismissed on grounds of governmental immunity.
¶5 We conclude that the WFDL applies to the City; that
the relationships between the Golf Pros and the City are
"dealerships" under the WFDL; that the Golf Pros' lawsuit is not
time-barred; and that the City is not immune from the lawsuit.
Consequently, we reverse the decision of the court of appeals
and remand for further proceedings consistent with this opinion.
I. FACTUAL BACKGROUND
¶6 Although the City's relationships with the Golf Pros
span back a number of years, the most recent version of the
Agreements governed a period running from January 1, 2008, to
December 31, 2012.5 Because the nature of the relationships
between the City and the Golf Pros is central to this case, we
first summarize the duties of the City and of the Golf Pros, as
5
The four Golf Pros began their respective relationships
with the City in 1977, 1981, 1985, and 1999. According to the
parties, the Agreements "were generally for five-year terms."
3
No. 2015AP2366
well as overall financial arrangements, as set forth in these
Agreements.
¶7 Each Golf Pro entered into a separate Agreement with
the City, with each of the four Golf Pros managing clubhouse
operations at one of the City's four courses. The Agreements
begin by noting, inter alia, that the City "is engaged in the
operation and maintenance of [the golf course] and desires to
engage a competent and qualified golf professional to operate,
manage, and provide certain services at [the golf course]"; that
"the Golf Pro desires to procure from the City the right to
operate and provide the services"; and that "the public interest
and welfare will be served . . . by the granting of an agreement
to a reputable party who will provide certain services to the
public patronizing the golf course." The Agreements then grant
to each Golf Pro "the exclusive privilege and obligation to
operate" one of the four golf courses.
¶8 Pursuant to the Agreements, each Golf Pro was hired to
perform the following tasks, among others (some of which
overlap):
 "[s]upervise and operate the [golf course] in a clean,
efficient, and creditable manner," "manag[e] the speed
of play," "efficiently start[] play on the first tee
so as to maximize play and revenue to the City," and
"provide a ranger/ambassador when heavy play so
requires";
 "[e]mploy attendants to sell and collect green fees,
resident and non-resident annual passports and other
4
No. 2015AP2366
established player promotional devices, renewals, and
take and process reservations," and "collect for the
City all green fees, locker fees, player promotional
pass fees, and tournament fees";
 "operate concession rights at the pro shop, clubhouse,
and golf course," "sell food and beverages" during
specified periods, "[o]btain the necessary licenses to
operate and maintain on the premises a concession
operation for the sale of beverages, confections, and
food," and "sell golf clothing and golf equipment";
 "[p]rovide a sufficient number of motorized golf carts
to meet the needs of the public" and "rent and operate
golf carts and equipment"; and
 "teach and give golf lessons for compensation" as well
as "conduct" a specified number of "free clinics each
season."
¶9 Significantly, the Golf Pros were "responsible for the
purchase of all supplies and equipment used in the pro shop,
golf range, motorized cart concessions, and food and beverage
concessions." Each Golf Pro was entitled to "hire assistants to
assist in the operation" of the golf course, "concessions and
collecting money due the City under" the Agreement. But the
Golf Pros were "responsible for the hiring and supervision of
all employees necessary for the efficient operation of the
clubhouse and the pro shop and further, the hiring, training,
scheduling and supervision of course rangers and starters." The
Golf Pros were also "responsible for the salaries, benefits, and
5
No. 2015AP2366
premiums for Worker's Compensation and Social Security, all
income tax deduction and any other tax or payroll deductions
required by law" for these employees. The Golf Pros were
required to maintain a number of different types of insurance.
¶10 The Agreements did not oblige the Golf Pros to
maintain the physical courses; this was performed by the City
through its own employees. The City also owned the land and
buildings and paid relevant utilities.6
¶11 The City paid each Golf Pro a "base contract payment"
specified in the Agreements. The Golf Pros also received:
All income from concessions, sale of merchandise at
the pro shop, golf instruction, pull cart . . . and
golf club rental, except for a return each week to the
City of Madison fifteen (15%) percent of the gross
receipts of pull carts . . . and golf club rental, and
eleven (11%) percent of the restaurant concession.7
¶12 According to the Agreements, the Golf Pros did not
receive any money from the "green fees, locker fees, player
promotional pass fees, and tournament fees"; the Golf Pros
simply collected these fees and "remit[ted]" them to the City.
According to the parties, "the City set the prices for greens
6
The Agreements did provide that the Golf Pros would
"cooperate with city employees to keep the premises . . . and
the area adjacent to the buildings, up to 25 yards, in a tidy
and presentable condition at all times." Additionally, the Golf
Pros were "responsible for all cleaning of the clubhouse
buildings."
7
Certain of the Agreements differed regarding the manner in
which riding cart and driving range revenue was allocated. This
difference does not affect our decision in this case.
6
No. 2015AP2366
fees, passes and locker fees" and furnished "the equipment
necessary to process payments of greens fees, locker fees and
charges for season passes." On the other hand, the Golf Pros
set food, beverage, and merchandise prices.
¶13 The Agreements required the Golf Pros to provide
either $1,000 or $3,500 (depending on the Agreement) each year
"to a fund to be matched by the City to execute a formal
marketing plan for [the City's] golf program." The Agreements
state that the Golf Pros "agree[] to participate in the creation
of this marketing plan."
¶14 Finally, the Agreements provide that "[t]he
relationship between the City and the Golf Pro shall be one of
an independent contractor and not one of employer and employee,"
adding:
[I]n the operation and conduct of this Agreement, the
City does not grant Golf Pro the right to sell or
distribute any goods or services provided by the City,
nor does the City grant Golf Pro the right to use a
City trade name, trademark, service mark, logotype,
advertising or other commercial symbol.
¶15 On August 1, 2012——a few months before the expiration
of the Agreements——the Golf Pros met with the City's Parks
Superintendent ("Superintendent") and other City employees. The
Superintendent informed the Golf Pros that "the golf operation
was not sustainable" and asked for "proposals for clubhouse
operations for the next term of the" Agreements. Proposals were
submitted, but on October 8, 2012, the City's mayor decided to
"recommend internalizing clubhouse operations" to the City's
Common Council. On October 12, 2012, the Superintendent
7
No. 2015AP2366
informed the Golf Pros that the Agreements were not going to be
renewed.
II. PROCEDURAL BACKGROUND
¶16 On October 25, 2012, the Golf Pros served the City
with a notice of claim. See Wis. Stat. § 893.80 ("Claims
against governmental bodies or officers, agents or employees;
notice of injury; limitation of damages and suits."). On
January 17, 2014, the Golf Pros filed a complaint in Dane County
circuit court against the City alleging that the City had failed
to comply with the WFDL in terminating the City's relationships
with them; the Golf Pros sought damages. Specifically, the
complaint alleged that the City "failed to provide to the Golf
Pros any written notice of termination or nonrenewal, let alone
a notice that can be said to comply with the requirements" of
the WFDL and "failed to provide the Golf Pros with the required
60 days in which to rectify any claimed deficiency," adding that
"indeed [the City] claimed no deficiency in the Golf Pros'
performance whatsoever." The Golf Pros argued that the City's
"nonrenewal and termination of the Golf Pros' respective
[Agreements] was a direct violation of the WFDL."8
¶17 On August 31, 2015, the circuit court issued a
decision and order granting a motion for summary judgment filed
by the City and denying a motion for partial summary judgment
filed by the Golf Pros. The decision was based on the circuit
8
On May 19, 2014, the Golf Pros filed an amended complaint.
8
No. 2015AP2366
court's conclusion that "[t]he Golf Pros' contractual
relationships with the City were not protected 'dealerships'
under the [WFDL]." On September 29, 2015, the circuit court
entered an order for judgment and judgment of dismissal.
¶18 On November 11, 2015, the Golf Pros filed a notice of
appeal. On August 25, 2016, the court of appeals affirmed,
"agree[ing] with the circuit court that . . . the Golf Pros did
not have dealerships." Benson, unpublished slip op., ¶2. On
September 26, 2016, the Golf Pros filed a petition for review in
this court. On January 10, 2017, we granted the petition.
III. STANDARD OF REVIEW
¶19 This appeal arose following the circuit court's
decision on summary judgment. "We review summary judgment
rulings independently, applying the well-established standards
set forth in Wis. Stat. § 802.08." Marks v. Houston Cas. Co.,
2016 WI 53, ¶35, 369 Wis. 2d 547, 881 N.W.2d 309 (quoting
Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20, ¶20, 338
Wis. 2d 761, 809 Wis. 2d 529).
¶20 In this case we interpret and apply the WFDL. "The
interpretation and application of a statute present questions of
law that this court reviews de novo while benefitting from the
analyses of the court of appeals and circuit court." State v.
Denny, 2017 WI 17, ¶46, 373 Wis. 2d 390, 891 N.W.2d 144 (quoting
State v. Alger, 2015 WI 3, ¶21, 360 Wis. 2d 193, 858
N.W.2d 346).
IV. ANALYSIS
9
No. 2015AP2366
¶21 The WFDL governs "dealerships," which are specially-
defined "contract[s] or agreement[s]" entered into between
"grantors" and "dealers." Wis. Stat. §§ 135.02-135.025.
Generally speaking, where dealerships exist, the WFDL imposes
certain obligations on grantors with respect to those
relationships. For instance, grantors are prohibited from
"terminat[ing], cancel[ling], fail[ing] to renew or
substantially chang[ing] the competitive circumstances of a
dealership agreement without good cause," Wis. Stat. § 135.03,
and usually must provide "at least 90 days' prior written notice
of termination, cancellation, nonrenewal or substantial change
in competitive circumstances." Wis. Stat. § 135.04. If a
grantor "violates" the WFDL,
a dealer may bring an action against such grantor in
any court of competent jurisdiction for damages
sustained by the dealer as a consequence of the
grantor's violation, together with the actual costs of
the action, including reasonable actual attorney fees,
and the dealer also may be granted injunctive relief
against unlawful termination, cancellation, nonrenewal
or substantial change of competitive circumstances.
Wis. Stat. § 135.06.
¶22 In this case we are asked to determine whether the
WFDL applies to the City, and if so, whether the relationships
between the Golf Pros and the City are "dealerships" under the
WFDL. We now examine these questions.
A. Whether the WFDL Applies to the City
¶23 To ascertain whether the WFDL applies to the City, we
look to the text of the relevant statute. As explained, the
10
No. 2015AP2366
WFDL concerns itself with "dealerships," which are entered into
between "grantors" and "dealers." The WFDL defines "grantor" to
mean "a person who grants a dealership." Wis. Stat.
§ 135.02(5). "Dealer" is defined to mean "a person who is a
grantee of a dealership situated in this state." § 135.02(2).
Finally, the statute defines "dealership" in part as follows:
A contract or agreement, either expressed or
implied, whether oral or written, between 2 or more
persons, by which a person is granted the right to
sell or distribute goods or services, or use a trade
name, trademark, service mark, logotype, advertising
or other commercial symbol, in which there is a
community of interest in the business of offering,
selling or distributing goods or services at
wholesale, retail, by lease, agreement or otherwise.
§ 135.02(3)(a) (emphasis added). Thus, whether the WFDL applies
to the City turns on whether the City is a "person" under the
WFDL.
¶24 Luckily, "[p]erson" is defined in the WFDL: "a natural
person, partnership, joint venture, corporation or other
entity." Wis. Stat. § 135.02(6) (emphasis added). We agree
with the Golf Pros that the City falls within this definition.
The WFDL applies by its terms to "corporation[s]," and the City
is a municipal corporation. See, e.g., City of Madison v.
Hyland, Hall & Co., 73 Wis. 2d 364, 370, 243 N.W.2d 422 (1976)
("By statute, the City of Madison is 'a body corporate and
politic, with powers and privileges of a municipal corporation
at common law and conferred by these statutes.' [Wis. Stat.
11
No. 2015AP2366
§ 66.019].[9] This court has repeatedly held that a city is a
municipal corporation."); Wis. Stat. § 62.09(7)(a) ("The
corporate authority of the city shall be vested in the mayor and
common council.").
¶25 This interpretation comports with our oft-repeated
rules that "[s]tatutory language is given its common, ordinary,
and accepted meaning" and that "[i]f the meaning of the statute
is plain, we ordinarily stop the inquiry." State ex rel. Kalal
v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000
WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659). "Without some
indication to the contrary, general words (like all words,
general or not) are to be accorded their full and fair scope.
They are not to be arbitrarily limited. This is the general-
terms canon." Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 101 (2012) (referring to this
rule by its Latin designation, "generalia verba sunt generaliter
intelligenda"); see also, e.g., State v. Kozel, 2017 WI 3, ¶39,
373 Wis. 2d 1, 889 N.W.2d 423 ("We will not read into the
statute a limitation the plain language does not evidence."
(quoting Cty. of Dane v. LIRC, 2009 WI 9, ¶33, 315 Wis. 2d 293,
759 N.W.2d 571)). The general term "corporation" thus
presumptively should be read to include more specific types of
corporations.
9
Wisconsin Stat. § 66.019 has since been renumbered. See
1999 Wis. Act 150, § 41.
12
No. 2015AP2366
¶26 Numerous courts have similarly concluded that statutes
referring to "corporations" include within their ambit municipal
corporations. See, e.g., Lincoln v. Ricketts, 297 U.S. 373,
373-78 (1936) (section of Bankruptcy Act affected municipal
corporations, where the section applied to "person[s]" and
"person" was defined to include corporations); Hoye v. United
States, 277 F.2d 116, 119 (9th Cir. 1960) (section of Internal
Revenue Code defining "person" to include "an officer or
employee of a corporation" contemplated municipal corporations
because the section made "no distinction in its applicability to
different classes of corporations"); Madison Cty. Fiscal Court
v. Kentucky Labor Cabinet, 352 S.W.3d 572, 576 (Ky. 2011)
(cities were "subject to . . . wage and hour requirements" of
statute defining "employer" to include "corporation[s]," because
"[a] municipal corporation is a corporation" (second alteration
in original)).
¶27 But we need not look beyond Wisconsin for guidance on
the question. In Hyland, Hall & Co. we considered "whether
cities and counties have standing to sue for treble damages
under the Wisconsin antitrust act." Hyland, Hall & Co., 73
Wis. 2d at 367. The City itself was one of the plaintiffs in
that case. See id. at 367-68. The relevant statute applied to
"person[s]," which was defined to include "corporations." Id.
at 369 (quoting then-Wis. Stat. §§ 133.01, 133.04). We noted
that we had "repeatedly held that a city is a municipal
corporation" and concluded that "cities . . . are 'corporations'
13
No. 2015AP2366
within the meaning of" the statute such that the City was
"entitled to sue for treble damages." Id. at 370-71.
¶28 In the course of our analysis in that case, we also
observed that Wis. Stat. § 990.01 provided as follows:
Construction of laws; words and phrases.
. . . In the construction of Wisconsin laws the words
and phrases which follow shall be construed as
indicated unless such construction would produce a
result inconsistent with the manifest intent of the
legislature:
. . . .
(26) Person. "Person" includes all partnerships,
associations and bodies politic and corporate.
Id. at 369 (emphasis added) (quoting then-Wis. Stat.
§ 990.01(26)). Reasoning that a city is a "body politic and
corporate," we confirmed that was "no contradiction" between
Wis. Stat. § 133.04 and Wis. Stat. § 990.01(26). Id. at 370-71.
¶29 Hyland, Hall & Co. all but disposes of the instant
question. As in Hyland, Hall & Co., we are presented with a
statute that pertains to "person[s]," defined to include
"corporation[s]." As in Hyland, Hall & Co., we have additional
guidance from the legislature regarding the definition of the
word "person": we should construe that word in the WFDL to
include "bodies politic or corporate" "unless such construction
would produce a result inconsistent with the manifest intent of
14
No. 2015AP2366
the legislature." Wis. Stat. § 990.01(26).10 And finally, as in
Hyland, Hall & Co., the entity under consideration is the City,
a municipal corporation. One of the only differences between
Hyland, Hall & Co. and this case is that the City was a
plaintiff in the former but finds itself to be a defendant in
the latter.
¶30 "What is of paramount importance is that [the
legislature] be able to legislate against a background of clear
interpretive rules, so that it may know the effect of the
language it adopts." DOJ v. DWD, 2015 WI 114, ¶47, 365
Wis. 2d 694, 875 N.W.2d 545 (alteration in original) (quoting
Finley v. United States, 490 U.S. 545, 556 (1989), superseded by
statute as stated in Exxon Mobil Corp. v. Allapattah Serv.,
Inc., 545 U.S. 546, 557–58 (2005)). It would be peculiar, to
say the least, for us to conclude that the City is a
"corporation" and a "person" under the relevant statute in
Hyland, Hall & Co. but not in this case. Indeed, Hyland, Hall &
Co. and this case both involve chapters of the Wisconsin
Statutes——Chapter 133 and Chapter 135, respectively——concerned
with the "Regulation of Trade." See Wis. Stat. (Table of
Contents). The reasoning in Hyland, Hall & Co. applies with
equal force here, so we simply apply it. See DOJ v. DWD, 365
10
Since City of Madison v. Hyland, Hall & Co., 73
Wis. 2d 364, 370, 243 N.W.2d 422 (1976), the definition of
"person" in Wis. Stat. § 990.01(26) has been expanded to
"include[] all partnerships, associations and bodies politic or
corporate." Wis. Stat. § 990.01(26) (emphasis added).
15
No. 2015AP2366
Wis. 2d 694, ¶47 (observing that the word "disclose" had been
interpreted in a prior case involving a different statute than
the one at issue and stating, "[W]e would require a convincing
reason indeed to interpret 'disclose' any differently in this
context.").
¶31 The noscitur a sociis canon of construction does not
change our conclusion. That canon provides that "an unclear
statutory term should be understood in the same sense as the
words immediately surrounding or coupled with it." Wis.
Citizens Concerned for Cranes & Doves v. DNR, 2004 WI 40, ¶40,
270 Wis. 2d 318, 677 N.W.2d 612. For reasons already discussed,
the word "corporation" is not unclear, so we have no need to
resort to the canon. But even if we did, the words "natural
person," "partnership," "joint venture," and "other entity" do
not so plainly evidence legislative exclusion of municipal
corporations from the meaning of "corporation" that we may
conclude that the City falls outside the WFDL.
A court has no right to resort to the maxim[] of
noscitur a sociis . . . for the purpose of reading
into a statute a distinction which the legislature
neither made nor intended to make. [This] rule[] [is]
not the master[] of the courts, but merely their
servant[], to aid them in ascertaining the legislative
intent. [It] afford[s] a mere suggestion to the
judicial mind that, where it clearly appears that the
lawmakers were thinking of a particular class of
persons or objects, their words of more general
description may not have been intended to embrace any
other than those within the class.
Boardman v. State, 203 Wis. 173, 176, 233 N.W.2d 556 (1930)
(quoting Benson v. Chicago St. P., M. & O. Ry. Co., 77 N.W. 798,
16
No. 2015AP2366
799 (1899)); see also, e.g., State v. Quintana, 2008 WI 33, ¶35,
308 Wis. 2d 615, 748 N.W.2d 447 (concluding that the noscitur a
sociis canon did not apply because of a lack of similarity
between listed terms); cf. Noffke ex rel. Swenson v. Bakke, 2009
WI 10, ¶27, 315 Wis. 2d 350, 760 N.W.2d 156 ("If the legislature
intended such a narrow construction, the legislature could have
clearly placed such a restriction in the text of the statute.").
¶32 Finally, Wis. Stat. § 135.07 must be considered. That
section, entitled "Nonapplicability," lists certain parties to
whom the WFDL does not apply. See, e.g., Wis. Stat. § 135.07
("This chapter does not apply: . . . (2) To the insurance
business."). Cities are not among those listed. Clearly the
legislature recognized the need to circumscribe the WFDL in
certain circumstances, and we cannot conclude that the
possibility that the WFDL might apply to cities is so far-
fetched as to have escaped its consideration. "Under the well-
established canon of expressio unius est exclusio alterius (the
expression of one thing excludes another), where the legislature
specifically enumerates certain exceptions to a statute, we
conclude, based on that rule, that the legislature intended to
exclude any other exception." State v. Delaney, 2003 WI 9, ¶22,
259 Wis. 2d 77, 658 N.W.2d 416; cf. Lake City Corp. v. City of
Mequon, 207 Wis. 2d 155, 171, 558 N.W.2d 100 (1997) ("It is
clear that the legislature knew how to accomplish this goal,
since it included similar qualifying language in this very same
statute.").
17
No. 2015AP2366
¶33 In sum, we conclude that the City is a "person" under
the WFDL, and that the WFDL therefore applies to it.11
B. Whether the Relationships Between the Golf Pros
and the City Are "Dealerships" Under the WFDL
¶34 Having concluded that the WFDL applies to the City, we
now address whether the relationships between the Golf Pros and
the City are "dealerships" under the WFDL. Whether a
relationship constitutes a "dealership" under the WFDL is a
recurring question for courts, see Bush v. Nat'l School Studios,
Inc., 139 Wis. 2d 635, 646, 407 N.W.2d 883, in part because the
definition of "dealership" in the WFDL is "both extremely broad
and highly nuanced." Baldewein Co. v. Tri-Clover, Inc., 2000 WI
20, ¶12, 233 Wis. 2d 57, 606 N.W.2d 145. "In most cases, there
is rarely an obvious answer to the question of whether a
business is a dealership . . . ." Bush, 139 Wis. 2d at 647.
¶35 Again, the WFDL defines "dealership" in part as
follows:
11
Consequently, we need not consider whether the City also
qualifies as an "other entity" under the WFDL's definition of
"person." See Wis. Stat. § 135.02(6). However, we observe that
the term "entity" is obviously a broad one. See, e.g., Entity,
Black's Law Dictionary 650 (10th ed. 2014) (defining "entity" to
mean "[a]n organization (such as a business or governmental
unit) that has a legal identity apart from its members or
owners" (emphasis added)). And while one might argue that the
scope of this term should be limited by the ejusdem generis
canon of construction, pursuant to which "general words
follow[ing] specific words in the statutory text . . . should be
construed in light of the specific words listed," State v.
Quintana, 2008 WI 33, ¶27, 308 Wis. 2d 615, 748 N.W.2d 447,
application of that canon would require a court to determine
first the meaning of the word "corporation" anyway.
18
No. 2015AP2366
A contract or agreement, either expressed or
implied, whether oral or written, between 2 or more
persons, by which a person is granted the right to
sell or distribute goods or services, or use a trade
name, trademark, service mark, logotype, advertising
or other commercial symbol, in which there is a
community of interest in the business of offering,
selling or distributing goods or services at
wholesale, retail, by lease, agreement or otherwise.
Wis. Stat. § 135.02(3)(a). In determining whether this
definition is satisfied, our cases have typically divided the
statutory language into three parts: (1) the existence of a
contract or agreement between two or more persons; (2) by which
a person is granted one of the rights specified; and (3) in
which there is the requisite "community of interest." See,
e.g., Kania v. Airborne Freight Corp., 99 Wis. 2d 746, 763, 300
N.W.2d 63 (1981).
¶36 In arguing that a dealership existed in this case, the
Golf Pros point to Wis. Stat. § 135.025, which states that
Chapter 135 "shall be liberally construed and applied to promote
its underlying remedial purposes and policies." § 135.025(1).
The statute lists the WFDL's "underlying purposes and policies"
as follows:
(a) To promote the compelling interest of the
public in fair business relations between dealers and
grantors, and in the continuation of dealerships on a
fair basis;
(b) To protect dealers against unfair treatment
by grantors, who inherently have superior economic
power and superior bargaining power in the negotiation
of dealerships;
(c) To provide dealers with rights and remedies
in addition to those existing by contract or common
law;
19
No. 2015AP2366
(d) To govern all dealerships, including any
renewals or amendments, to the full extent consistent
with the constitutions of this state and the United
States.
§ 135.025(2). Pursuant to established case law, however, the
rule of liberal construction set forth in § 135.025(1) does not,
generally speaking, apply to the definition of "dealership":
If a relationship is a dealership, the protections
afforded the dealer are to be construed and applied
liberally to the dealer. But the statute itself
undertakes to draw a line to encompass the kinds of
enterprises and relationships which are to enjoy such
protection. There is no basis upon which the courts
can provide that protection to enterprises and
relationships which fall without the legislative
line."
Kania, 99 Wis. 2d at 775 (quoting H. Phillips Co. v. Brown-
Forman Distillers Corp., 483 F. Supp. 1289 (W.D. Wis. 1980));
cf. DOJ v. DWD, 365 Wis. 2d 694, ¶31 ("This policy contains the
very language we must interpret in this case. We cannot construe
the statute liberally in aid of disclosure of information and
protection from retaliatory action for disclosure of information
until we know what the terms 'disclosure of information' and
'retaliatory action' mean.").
¶37 Returning to the three-part test for the existence of
a dealership, we already know that the City, like the Golf Pros,
is a "person" under the WFDL. Additionally, the Agreements
between the parties are obviously "contract[s] or agreement[s]."
Our inquiry thus revolves around whether the other two
conditions necessary for the creation of a dealership are
satisfied. We examine each in turn, and conclude that a
dealership exists.
20
No. 2015AP2366
1. The Right to Sell or Distribute Goods or Services
¶38 We conclude that the Agreements between the City and
the Golf Pros "granted [the Golf Pros] the right to sell or
distribute goods or services." Wis. Stat. § 135.02(3)(a).12
¶39 In analyzing this question, the court of appeals below
"acknowledge[d] difficulty in identifying whether the Golf Pros
were actually selling or distributing any City goods or services
and, if so, what those City goods or services were." Benson,
unpublished slip op., ¶26.13 The court of appeals "agree[d]
that, at the most abstract level, it might be said that the Golf
Pros sold or distributed a City 'service,' namely, the service
of providing golf courses for public use." Id. But then the
court of appeals concluded:
[T]he most accurate way to view the unique facts here
is that the Golf Pros were not selling or distributing
City goods or services; rather, the Golf Pros were
engaged in the business of selling or renting non-City
goods (golfing equipment, concessions, and pro shop
12
Because we conclude that the Golf Pros were "granted the
right to sell or distribute goods or services," we need not
determine whether the Golf Pros were likewise "granted the right
to . . . use a trade name, trademark, service mark, logotype,
advertising or other commercial symbol." Wis. Stat.
§ 135.02(3)(a).
13
We assume without deciding for purposes of this case
that, as the court of appeals below indicated might be the case
under the WFDL, the issue is whether the Golf Pros possess the
right to sell or distribute City goods or services rather than,
for example, "the right to sell non-City goods and their own
services on City property." Benson v. City of Madison, No.
2015AP2366, unpublished slip op., ¶26 n.8 (Wis. Ct. App.
Aug. 25, 2016). An argument might be made that either would
meet the plain terms of the statute.
21
No. 2015AP2366
items) and selling their own professional services to
the City and the public, including golf course
management services to the City and golf lessons to
golf course patrons.
Id. We do not subscribe to this reasoning; the court of
appeals' initial conception of the service at issue was closer
to the mark.
¶40 In order to make golf courses available to paying
members of the public, the City had to do more than merely open
up some of its land. It had to perform a number of tasks to
create, maintain, and operate its land as golf courses.
Producing a golf course and opening it up to the public for use
in exchange for money is undoubtedly a service. See Service,
Black's Law Dictionary 1576 (10th ed. 2014) (defining "service"
as "the performance of some useful act or series of acts for the
benefit of another, usu. for a fee").
¶41 The City granted the Golf Pros the right to sell this
City service to the public. We have characterized "the right to
sell" under the WFDL variously (but not necessarily
exhaustively) as the "unqualified authorization to transfer the
product at the point and moment of the agreement to sell" or the
"authority to commit the grantor to a sale." Foerster, Inc. v.
Atlas Metal Parts Co., 105 Wis. 2d 17, 26, 313 N.W.2d 60 (1981).
The City granted the Golf Pros authority to commit it to a sale
of its service in a number of ways.
¶42 Most importantly, a member of the public seeking to
golf on a City course set her reservation through the Golf Pro
or the Golf Pro's attendants and paid her greens fee to the Golf
22
No. 2015AP2366
Pro or the Golf Pro's attendants. The City provided "the
equipment necessary to process payments of greens fees, locker
fees and charges for season passes" and the Golf Pro remitted
the resultant revenue to the City. In this way, the Golf Pros
sold access to City courses.
¶43 Similarly, the City required the Golf Pros to operate
golf club and cart rental services to those using the City's
courses. The Golf Pros provided the carts and clubs and the
money earned from portions of the service was shared between the
Golf Pros and the City.
¶44 In some of these instances the Golf Pros set the
relevant prices; in others the City set the relevant prices.
But in each case the City instituted the service, authorized the
Golf Pros to sell that service, and took some or all of the
income generated by the service.
¶45 This case is distinguishable from Bakke Chiropractic
Clinic v. Physicians Plus Ins. Corp., 215 Wis. 2d 605, 573
N.W.2d 542 (Ct. App. 1997). That case involved a health
maintenance organization insurer which "enter[ed] into provider
agreements directly with independent chiropractors and
chiropractic clinics"; the providers then provided "services
to . . . members" of the insurer. Bakke, 215 Wis. 2d at 608-09.
The court of appeals concluded that the providers in Bakke sold
"only their own chiropractic services, to [the insurer] and to
others," rather than the insurer's product, which the court of
appeals characterized as "health insurance coverage." Id. at
616. The court of appeals contrasted this with our decision in
23
No. 2015AP2366
Bush. Id. at 615-16. The putative dealer in Bush was a
photographer who worked for a "corporation engaged in the school
photography business." Bush, 139 Wis. 2d at 637-38. The Bakke
court explained that "[e]ven though Bush performed numerous
services for [the corporation], all of his efforts were directed
toward selling [the corporation's] products and services to the
public." Bakke, 215 Wis. 2d at 616.
¶46 This case is more like Bush in this regard than Bakke.
In selling access to the City's golf course and renting out
carts and clubs, the Golf Pros were selling the City's service
of providing a functioning golf course to members of the public.
This is not to foreclose the possibility that the Golf Pros were
also selling some of their own services to the City. But even
if they were doing so, they were simultaneously selling the
City's service to the public.14
¶47 The City suggests, at least with regard to the
collection of greens fees and money for season passes, that the
Golf Pros "exercised no more discretion and assumed no more risk
in these transactions than a movie theater cashier or parking
lot attendant." Assuming this argument is correct, we fail to
see exactly what it proves. The WFDL does not provide that
every agreement granting a person "the right to sell or
14
We need not examine whether or how other of the many
activities performed by the Golf Pros may have contributed to
the "sell or distribute" requirement of the WFDL. With regard
to some of these activities, like the sale of merchandise, the
City received no income.
24
No. 2015AP2366
distribute goods or services" is a dealership; there also must
be the requisite community of interest, a subject to which we
will turn momentarily. At present, we simply conclude that the
Agreements between the City and the Golf Pros granted the Golf
Pros the right to sell or distribute the City's services.
¶48 Before proceeding to the community of interest
analysis, we pause to recognize that the Agreements specifically
provide that "the City does not grant Golf Pro the right to sell
or distribute any goods or services provided by the City." But
Wis. Stat. § 135.025 states that "[t]he effect of this chapter
may not be varied by contract or agreement. Any contract or
agreement purporting to do so is void and unenforceable to that
extent only." § 135.025(3). We are thus required to reject the
City's attempt to contract around the WFDL.
2. Community of Interest
¶49 Wisconsin Stat. § 135.02(1) defines "[c]ommunity of
interest" as "a continuing financial interest between the
grantor and grantee in either the operation of the dealership
business or the marketing of such goods or services."
§ 135.02(1). We have identified two "guideposts" to be used in
analysis of whether a community of interest exists: a
"continuing financial interest," that is, "a shared financial
interest in the operation of the dealership or the marketing of
a good or service," and "interdependence," or "the degree to
which the dealer and grantor cooperate, coordinate their
activities and share common goals in their business
relationship." Ziegler Co. v. Rexnord, Inc., 139 Wis. 2d 593,
25
No. 2015AP2366
604-05, 407 N.W.2d 873 (1987), on reconsideration, 147 Wis. 2d
308, 433 N.W.2d 8 (1988). In Baldewein Co. we stated:
When a dealer sinks substantial resources into
its relationship with a particular grantor——time,
money, employees, facilities, inventory, advertising,
training——or derives substantial revenue from the
relationship (as a percentage of its total), or some
combination of the two, the grantor's power to
terminate, cancel, or not renew the relationship
becomes a substantial threat to the economic health of
the dealer and a community of interest can be said to
exist.
Baldewein Co., 233 Wis. 2d 57, ¶27.15
15
In the past we have also listed several considerations
that are "useful in determining whether a community of interest
exists," Central Corp. v. Research Products Corp., 2004 WI 76,
¶34, 272 Wis. 2d 561, 681 N.W.2d 178:
[H]ow long the parties have dealt with each other; the
extent and nature of the obligations imposed on the
parties in the contract or agreement between them;
what percentage of time or revenue the alleged dealer
devotes to the alleged grantor's products or services;
what percentage of the gross proceeds or profits of
the alleged dealer derives from the alleged grantor's
products or services; the extent and nature of the
alleged grantor's grant of territory to the alleged
dealer; the extent and nature of the alleged dealer's
uses of the alleged grantor's proprietary marks (such
as trademarks or logos); the extent and nature of the
alleged dealer's financial investment in inventory,
facilities, and good will of the alleged dealership;
the personnel which the alleged dealer devotes to the
alleged dealership; how much the alleged dealer spends
on advertising or promotional expenditures for the
alleged grantor's products or services; the extent and
nature of any supplementary services provided by the
alleged dealer to consumers of the alleged grantor's
products or services.
(continued)
26
No. 2015AP2366
¶50 The undisputed facts establish that there exists a
community of interest in the business of selling the City's
services, that is, a "continuing financial interest between the
[City] and [the Golf Pros] in . . . the operation of the
dealership business." Wis. Stat. § 135.02(1).
¶51 To begin with, the record shows that the Golf Pros
"[sunk] substantial resources into its relationship with" the
City. They were required to hire, train, and compensate
employees, purchase "all supplies and equipment" pertaining to
the golf carts and golf range, contribute to a marketing plan,
and maintain insurance. In addition, the Golf Pros were
required to sell food, beverages, and merchandise, which
Ziegler Co. v. Rexnord, Inc., 139 Wis. 2d 593, 606, 407
N.W.2d 873 (1987), on reconsideration, 147 Wis. 2d 308, 433
N.W.2d 8 (1988).
Although we have stated that these extrastatutory items
"should" be considered by courts, id. at 606, it is more
accurate to say that some or all "may" be considered; the
factors are meant to be a helpful aid in addressing the
overriding community of interest question, not an unwieldy
burden. See generally Home Protective Servs., Inc. v. ADT Sec.
Servs., Inc., 438 F.3d 716, 719-20 (7th Cir. 2006)
(characterizing the list as "long" and attempting to "distill[]"
it). It remains true, however, that a court should examine the
totality of the relationship between the grantor and the dealer.
See Ziegler Co., 139 Wis. 2d at 605-06.
27
No. 2015AP2366
required obtaining both these commodities and any appropriate
licenses.16
¶52 In Kania we found detrimental to the putative dealer's
case the facts that he was "not authorized to sell [the putative
grantor's] services" and that he "was paid for his
transportation services on a weekly basis at a specified rate";
here, the Golf Pros were authorized to sell the City's services,
and while they were paid a retainer by the City, they also
shared with the City revenue from the cart and golf club
services. Kania, 99 Wis. 2d at 770. The operation of the golf
courses "was a joint undertaking of [the Golf Pros] and [the
City]. [They] shared in the profitability of the undertaking."
Bush, 139 Wis. 2d at 655. The City and the Golf Pros'
relationship was a lengthy one, and they shared the duties
inherent in maintaining an operative course, "cooperat[ing],
coordinat[ing] their activities and shar[ing] common goals in
their business relationship." Ziegler Co., 139 Wis. 2d at 605.
16
While we did not rely on all of these activities for our
analysis of whether the Golf Pros had been granted the right to
sell or distribute goods or services, the Golf Pros were
required to perform these activities as a condition of their
arrangements with the City. Consequently, the Golf Pros'
significant investment in these activities is relevant to the
question of whether "the grantor's power to terminate, cancel,
or not renew the relationship [was] a substantial threat to the
economic health of the dealer." Baldewein Co. v. Tri-Clover,
Inc., 2000 WI 20, ¶27, 233 Wis. 2d 57, 606 N.W.2d 145.
Similarly, insofar as the Golf Pros were selling a City service
by providing access to City golf courses, the nature of the Golf
Pros' investment in those courses is relevant.
28
No. 2015AP2366
¶53 In sum, the relationships between the Golf Pros and
the City fulfill the statutory definition of "community of
interest": "a continuing financial interest between the grantor
and grantee in . . . the operation of the dealership business."
Wis. Stat. § 135.02(1). Given the above, it is more than fair
to say that the City's "power to terminate, cancel, or not renew
the relationship[s] [was] a substantial threat to the economic
health of the [Golf Pros]." Baldewein Co., 233 Wis. 2d 57, ¶27.
C. Remaining Issues
¶54 We now dispose of the City's remaining arguments. The
City argues that the Golf Pros' WFDL claims are time-barred. We
disagree. Under Wis. Stat. § 893.93(3)(b), "[a]n action under
ch. 135" "shall be commenced within one year after the cause of
action accrues or be barred." § 893.93(3)(b). The notice of
claim statute, Wis. Stat. § 893.80, increased the applicable
period in this case to one year and 120 days. See Colby v.
Columbia Cty., 202 Wis. 2d 342, 357, 550 N.W.2d 124 (1996).
Next,
[i]n Wisconsin, a cause of action generally accrues
for statute of limitations purposes "'where there
exists a claim capable of present enforcement, a
suable party against whom it may be enforced, and a
party who has a present right to enforce it.'" When a
grantor violates the provisions of the WFDL, the
dealer is given a claim capable of present
enforcement, a suable party in the grantor, and a
present right to enforce that claim.
Les Moise, Inc. v. Rossignol Ski Co., Inc., 122 Wis. 2d 51, 57,
361 N.W.2d 653 (1985) (citation omitted) (quoting Barry v.
Minahan, 127 Wis. 570, 573, 107 N.W. 488 (1906)).
29
No. 2015AP2366
¶55 In Les Moise we considered whether, "where the grantor
has terminated the dealer as of a future date and given the
dealer written notice of that decision," accrual of a cause of
action under the WFDL for termination without good cause, see
Wis. Stat. § 135.03, differed from accrual of a cause of action
under the WFDL for termination without proper written notice,
see Wis. Stat. § 135.04. Les Moise, 122 Wis. 2d at 60-61. The
suggestion had been made that the former cause of action accrued
on the date of termination, whereas the latter cause of action
accrued when the written notice was received. Id. We concluded
that "[w]hen the dealer receives a written termination notice,
he may bring an action under sec. 135.03, if the grantor lacked
good cause to terminate, or under sec. 135.04, if the written
notice did not comply with that provision." Id. at 61.
¶56 Here, the only notice the Golf Pros received occurred
on October 12, 2012, when the Superintendent informed the Golf
Pros that the Agreements were not going to be renewed. This is
the earliest date on which their causes of action might have
accrued. The Golf Pros filed their complaint on January 17,
2014, within one year and 120 days of October 12, 2012. Their
claims are not time-barred.
¶57 The City argues that the Golf Pros' causes of actions
actually accrued in August 2012 when the Superintendent asked
for new proposals because the Golf Pros "knew by [then] that the
City would be making significant changes" and that "their five-
year contracts would not be renewed on substantially the same
terms." We reject this argument. In examining this issue, the
30
No. 2015AP2366
circuit court below cited our decision in Les Moise, where we
explained that "when Les Moise received the written termination
notice it was immediately informed of the intention of the
grantor and it was immediately capable of determining whether
the written notice and termination violated the WFDL." Les
Moise, 122 Wis. 2d at 62. In contrast, the facts below
demonstrate that as of August 2012 the Golf Pros did not know
what the grantor's decision would be and were not capable of
assessing whether the City had complied with the WFDL.
¶58 The City also argues that the notice of claim statute
does not apply here, thus reducing the Golf Pros' time to file
their lawsuit to one year, rather than one year and 120 days.
We agree with the Golf Pros that the notice of claim
requirements apply under the circumstances of this case.
¶59 As a general rule, the notice of claim requirements
govern in "all actions." See City of Racine v. Waste Facility
Siting Bd., 216 Wis. 2d 616, 621-24, 575 N.W.2d 712 (1998).
However, exceptions to this rule exist. See, e.g. E-Z Roll Off,
LLC v. Cty. of Oneida, 2011 WI 71, ¶¶21-22, 335 Wis. 2d 720, 800
N.W.2d 421 (collecting cases). To determine whether an
exception exists, we examine whether there is a "a specific
statutory scheme in conflict with the notice of claim
requirements," whether there is "a legislative preference for a
prompt resolution of the type of claim under consideration," and
whether "the purposes for which § 893.80 was enacted would be
furthered by requiring that a notice of claim be filed." Id.,
31
No. 2015AP2366
¶¶23-24, 29 (citing Town of Burke v. City of Madison, 225
Wis. 2d 615, 625, 593 N.W.2d 822 (Ct. App. 1999)).
¶60 These considerations counsel in favor of applying the
notice of claim requirements here. The WFDL's statute of
limitations period of one year is not "more
restrictive . . . than the 120-day notice of claim
requirements." Id., ¶27. Further, although the WFDL allows for
injunctive relief, it also permits damages, Wis. Stat. § 135.06,
and "[t]he plain meaning of the statute places the choice in the
hands of the dealer." Frieburg Farm Equip., Inc. v. Van Dale,
Inc., 978 F.2d 395, 402 (7th Cir. 1992). The Golf Pros do not
seek injunctive relief in this case. See E-Z Roll Off, 335
Wis. 2d 720, ¶28. Finally, the twin purposes of the notice of
claim requirements, "to give governmental entities the
opportunity to investigate and evaluate potential claims" and
"to afford governmental entities the opportunity to compromise
32
No. 2015AP2366
and budget for potential settlement or litigation," are well-
served in cases like this one.17
¶61 The City's final argument is that it is immune from
the Golf Pros' lawsuit under Wis. Stat. § 893.80(4). But
"[g]overnmental immunity under Wis. Stat. § 893.80(4) applies
only to claims based in tort . . . ." Scott v. Savers Property
& Cas. Ins. Co., 2003 WI 60, ¶53, 262 Wis. 2d 127, 663
N.W.2d 715 (2003). The City does not develop an argument
explaining why a statutory WFDL claim is "based in tort," other
than to contend that "the focus is not on the particular legal
theory pled" and that the Golf Pros' "claim is based solely on
the City's discretionary policy decision to change the operation
of its golf courses."
¶62 The mere fact that the City's decision may have been,
in the City's words, "a high-level, planning decision that
required the exercise of discretion and the weighing and
balancing of numerous factors inherent in governmental decision-
17
We note that in most lawsuits it is the plaintiff seeking
exemption from the notice of claim requirements; here, the City
seeks exemption in order to shorten the applicable limitations
period. See, e.g., E-Z Roll Off, LLC v. Cty. of Oneida, 2011 WI
71, ¶23, 335 Wis. 2d 720, 800 N.W.2d 421 (framing one part of
the three-part inquiry used in determining whether an exception
to the notice of claim requirements exists as "whether there is
a specific statutory scheme for which the plaintiff seeks
exemption" (emphasis added) (citing Town of Burke v. City of
Madison, 225 Wis. 2d 615, 625, 593 N.W.2d 822 (Ct. App. 1999)).
We need not and do not express an opinion on a threshold
question of whether an entity like the City is permitted to
argue that it should not have been given notice of a claim,
because the argument fails in this case anyway.
33
No. 2015AP2366
making" does not establish the City's right to immunity. Cf.,
e.g., Energy Complexes, Inc. v. Eau Claire Cty., 152
Wis. 2d 453, 464, 449 N.W.2d 35 (1989) ("We conclude that
neither the common law nor [Wis. Stat. §]
893.80(4) . . . immunize the County from ECI's breach of
contract lawsuit, even if the contract was terminated because of
legislative acts occurring after the contract was signed.").
Without more, we conclude that the City is not immune from suit.
V. CONCLUSION
¶63 We conclude that the WFDL applies to the City; that
the relationships between the Golf Pros and the City are
"dealerships" under the WFDL; that the Golf Pros' lawsuit is not
time-barred; and that the City is not immune from the lawsuit.
Consequently, we reverse the decision of the court of appeals
and remand for further proceedings consistent with this opinion.
By the Court.—The decision of the court of appeals is
reversed, and the cause is remanded to the circuit court for
further proceedings consistent with this opinion.
34
No. 2015AP2366.dk
¶64 DANIEL KELLY, J. (concurring). I join the court's
opinion but for one persnickety point——our analysis treated a
certain piece of evidence in the wrong part of the dealership
analysis. As our opinion accurately observes, a dealership is
(as relevant here) a "contract or agreement . . . between 2 or
more persons, by which a person is granted the right to sell or
distribute goods or services . . . in which there is a community
of interest in the business of . . . selling . . . goods or
services . . . ." Wis. Stat. § 135.02(3)(a).
¶65 This case requires us to address both the "selling
goods or services" and the "community of interest" elements of
the definition of a dealership. The first element inquires into
the relationship between the parties as it relates to the sale
of goods or services. Contracts described by this element are
those in which "a person is granted the right to sell or
distribute goods or services . . . ." Wis. Stat.
§ 135.02(3)(a). Although the operative part of this phrase
appears in the passive voice ("is granted"), we know the
"granting" party is the City of Madison. Thus, the "person" to
whom the phrase refers must be the Golf Pros. It necessarily
follows, then, that the goods or services to which this element
applies must belong to the grantor (because a grantee need not
grant itself rights in its own property, and a grantor may not
grant rights in something it does not own).
¶66 So if the contracts under consideration created
dealerships, they must have conferred on the Golf Pros the right
1
No. 2015AP2366.dk
to sell goods or services belonging to the City. Our opinion
correctly concludes they did——we said the contracts were selling
access to the City's golf courses. That is certainly a service,
and a particularly welcome one at that. See Majority op., ¶¶40-
41.
¶67 Our analysis of this dealership element should have
stopped there. Instead, we proceeded to address the contracts'
requirement that the Golf Pros provide golf club and cart rental
services to the City's golfers. But the clubs and carts belong
to the Golf Pros, not the City. So the "goods or services"
element of the dealership statute simply has nothing to say
about them. They do, however, belong in the "community of
interest" element of the analysis, which our opinion deftly
handles, and so I need say no more.
¶68 For this reason, I concur.
2
No. 2015AP2366.ssa
¶69 SHIRLEY S. ABRAHAMSON, J. (dissenting). The
dispositive issue is whether the City of Madison is a "person"
in the Wisconsin Fair Dealership Law. If it is not, the Law is
not applicable to municipalities.1
¶70 This case is one of first impression. Neither the
parties, the majority, nor I could find any reported case,
either in Wisconsin or in any of the other many states with
similar dealership statutes, holding that a municipality is
subject to the statute. I would affirm the judgment of the
circuit court and the decision of the court of appeals, but on
the ground that that the Fair Dealership Law does not apply to
the City of Madison.
¶71 The majority opinion's ruling that the City of Madison
is a "person" in the Law does not follow or provide clear
1
I therefore need not and do not address the stretch the
majority opinion makes to fit the instant case into the
Wisconsin Fair Dealership Law.
The word "dealership" is used instead of "franchise" in the
Wisconsin Fair Dealership Law to avoid confusion between the
Dealership Law and the Wisconsin Franchise Investment Law, Wis.
Stat. ch. 553. Foerster, Inc. v. Atlas Metal Parts Co., 105
Wis. 2d 17, 23-24, 313 N.W.2d 60 (1981). For an historical
recount of the circumstances leading up to the enactment of the
Fair Dealership Law, see Robert B. Corris, In the Trenches:
OPEC, Gas Lines, and the Wisconsin Fair Dealership Law, Wis.
Lawyer, Apr. 1999, at 25.
The word "franchise" also has a special meaning in
municipal law. See 12 Eugene McQuillin, The Law of Municipal
Corporations ch. 34 (3d ed. 1995). The word franchise is often
used in municipal law to refer to a municipality entering into
an agreement with a utility company enabling the utility to use
property owned by the municipality.
1
No. 2015AP2366.ssa
interpretive rules2 and has, I think, widespread ramifications
for all municipalities in this state and the many contracts on
diverse topics to which they are parties. Municipalities will
be limited with regard to managing their finances and their
contracts. The majority opinion has not considered these
ramifications.3
¶72 The Wisconsin Fair Dealership Law, Wis. Stat.
§ 135.02(5) and (6), defines "grantor" under the Law as a
"person" to whom the Law applies. It further defines "person"
as a natural person, partnership, joint venture, corporation, or
other entity. The legislature has not referenced "a
municipality" or any governmental entity in the definition of
"person" for purposes of the Dealership Law:
Wis. Stat. 135.02. Definitions. In this chapter
[135]:
. . . .
(5) "Grantor" means a person who grants a dealership.
(6)"Person" means a natural person, partnership, joint
venture, corporation or other entity.
¶73 Although rules of interpretation serve the court, they
are not absolute rulers of a court's interpretation. Boardman
2
See majority op., ¶30 (The legislature should "'be able to
legislate against a background of clear interpretive rules, so
that it may know the effect of the language it adopts.'")
(quoted source omitted).
3
Consequences are an important consideration in
interpreting a statute. If an interpretation results in
"unreasonable or absurd" consequences, that interpretation may
be rejected. Wisconsin Carry, Inc. v. City of Madison, 2017 WI
19, ¶20, 373 Wis. 2d 543, 892 N.W.2d 233 (2017).
2
No. 2015AP2366.ssa
v. State, 203 Wis. 173, 233 N.W. 556 (1930) (quoting Benson v.
Chicago, St. P., M. & O. Ry. Co., 77 N.W. 798, 799 (Minn.
1899)). Nevertheless, numerous interpretive rules point to the
conclusion that a municipality does not fall within the
definition of "person" under the Fair Dealership Law.
¶74 Applying these rules and looking to other factors, I
conclude that the City of Madison does not fall within the
definition of "person" in the Wisconsin Fair Dealership Law.
¶75 First, the Legislature's instructions to the court in
deciding whether a statute governs a municipality make clear
that the Fair Dealership Law should not be interpreted as
applying to a city.
¶76 The legislature has clearly and explicitly stated that
the powers conferred on cities "shall be limited only by express
language." Wis. Stat. § 62.11(5).4 Included among the powers
conferred on a city is "the management and control of the city
property." Wis. Stat. § 62.11(5).5 The golf courses at issue
are the property of the City of Madison.
¶77 In addition to the power to manage its property, the
City of Madison is also statutorily authorized to own, operate,
4
See Wis. Stat. § 61.34(1) for the same provision relating
to village powers.
5
The court has stated that "[t]he City of Madison possesses
the broad home rule powers outlined by Wis. Stat. § 62.11(5) and
Article XI, Section 3 of the Wisconsin Constitution. This power
allows the City to act for the 'health, safety, and welfare of
the public,' and to carry out its policy goals by 'license,
regulation, suppression . . . and other necessary or convenient
means.'" Eichenseer v. Madison-Dane County Tavern League, Inc.,
2008 WI 38, ¶49, 308 Wis. 2d 684, 748 N.W.2d 154.
3
No. 2015AP2366.ssa
and finance parks and golf links. See Wis. Stat. § 66.0621(2).
The City of Madison has adopted an ordinance creating a golf
subcommittee of the Board of Park Commissioners. The
subcommittee "[a]dvises the Commission regarding policies, rate
structure, rules and regulations, capital improvements, user
complaints, operations and the selection of golf pros." See
Madison, Wis. General Ordinances § 33.05(5)(a).
¶78 The Fair Dealership Law does not contain any express
language limiting a city's power to contract about the
management and control of its golf links. No other law is cited
as expressly limiting the City in the operation of its golf
links.
¶79 In addition to these powers, the city council "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 . . . ." Wis. Stat. § 62.11(5).
¶80 The legislature has mandated that a city's powers
"shall be liberally construed in favor of the rights, powers and
privileges of cities to promote the general welfare, peace, good
order and prosperity of such cities and the inhabitants
thereof." Wis. Stat. § 62.04.
¶81 According to these statutes, the City of Madison has
the power——which is to be liberally interpreted——to manage its
property, operate golf links, and to act for the good order of
the city, for its commercial benefit, and for the health,
safety, and welfare of the public.
4
No. 2015AP2366.ssa
¶82 And the legislature has clearly and explicitly stated
that the powers conferred on cities "shall be limited only by
express language." Wis. Stat. § 62.11(5).
¶83 The majority opinion ought to follow the legislature's
instructions in Wis. Stat. § 62.11(5): It ought to interpret
the Dealership Law as not limiting the powers of the City of
Madison because nothing in the Fair Dealership Law expressly
limits the City of Madison in exercising management over its
golf courses or expressly limits the City's power to act for the
good order of the city, its commercial benefit, or for the
health, safety, and welfare of the public with regard to its
golf courses.
¶84 Applying the legislative instructions in § 62.11(5) to
the instant case, I conclude that the City of Madison does not
fall within the definition of the word "person" in the Fair
Dealership Law.
¶85 Second, the interpretive rule denominated "statutes in
derogation of sovereignty" supports the legislature's
instructions that the powers conferred on cities "shall be
limited only by express language." Under this interpretive
rule, applicable to all subdivisions of government, any
statutory provision that is susceptible to being read as
applying to a governmental entity and to a private entity should
be read as not applying to the governmental entity absent other
5
No. 2015AP2366.ssa
indicia supporting a contrary result.6 This rule is premised on
the policy of preserving for the public the efficient
functioning of government.7
¶86 This rule of statutory interpretation has been applied
in Wisconsin cases. See, e.g., State ex rel. Martin v. Reis,
230 Wis. 683, 687, 284 N.W. 580 (1939) (When the legislative
intent is to "include the state or any of its political
subdivisions, it is explicitly so stated in the
definition. . . . It is universally held both in this country
and in England that such statutes do not apply to the state
unless the state is explicitly included by appropriate
language."); Sullivan v. School Dist. No. 1 of City of Tomah,
179 Wis. 502, 506-07, 509-10, 191 N.W. 1020 (1923) ("Legislation
in derogation of the common law should be strictly construed
most favorably to the public corporation and not to the claimant
for damages. . . . [G]eneral statutes are not to be construed to
include, to its hurt, the sovereign. . . . [Application of a
statute to a political subdivision] is a matter which rests with
the wisdom of the Legislature, and not with the courts, and
until such change is effected by a proper statute, we must
consider it our duty to adhere to our former decisions and to
pronounce in favor of the nonliability doctrine.").
6
3 Norman J. Singer & J.D. Shambie Singer, Sutherland
Statutes and Statutory Construction § 62.1, at 377-82 (7th ed.
2014).
7
3 Singer, supra note 6, § 62.1, at 377-82.
6
No. 2015AP2366.ssa
¶87 Applying this interpretive rule to the instant case, I
conclude that the City of Madison does not fall within the
definition of the word "person" in the Fair Dealership Law.
¶88 Third, in addition to the two interpretive rules
described above supporting the conclusion that the City of
Madison is not governed by the Fair Dealership Law, another
similar rule of statutory interpretation "long followed"8 and
"generally applied"9 in Wisconsin law validates the conclusion
that the City of Madison does not fall within the definition of
"person," namely the "presumption of inapplicability."
¶89 The court has adopted the "presumption of
inapplicability" as an interpretive aid. Statutory provisions
that do not explicitly govern governmental entities do not apply
to governmental entities:
Statutory provisions which are written in such general
language as to make them reasonably susceptible to
being construed as applicable alike both to the
government and to private parties are subject to a
presumptive rule of construction which exempts the
government from their operation in the absence of
other particular indicia supporting a contrary result
in particular instances.
Wis. Veterans Home v. Div. of Nursing Home Forfeiture Appeals,
104 Wis. 2d 106, 110, 310 N.W.2d 646 (Ct. App. 1981) (quoting 3
8
Wis. Veterans Home v. Div. of Nursing Home Forfeiture
Appeals, 104 Wis. 2d 106, 110, 310 N.W.2d 646 (Ct. App. 1981)
9
DNR v. City of Waukesha, 184 Wis. 2d 178, 194, 515
N.W.2d 888 (1994), abrogated on other grounds by State ex rel.
Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 547 N.W.2d 587
(1996).
7
No. 2015AP2366.ssa
Sands, Statutes and Statutory Construction § 62.01, at 63 (4th
ed. 1974)).10
¶90 Although Wisconsin cases rely on this "presumption of
inapplicability," the cases acknowledge, as do I, that this
presumption may be overcome.
¶91 The presumption may be overcome when (1) the statute's
objective "could not be accomplished without including the
government"; or (2) including a particular activity under the
statute "would not vitally interfere with the processes of
government."11
¶92 The Golf Pros have not overcome the presumption of the
inapplicability of the Fair Dealership Law to the City of
Madison. The objectives of the Law can be accomplished without
including the City of Madison as a "person" in the Law.
Including the City as a "person" in the Law vitally interferes
with the City's managing recreational facilities and the fiscal
policies of the City.
¶93 Applying this "presumption of inapplicability" in the
instant case, I conclude that the City of Madison does not fall
within the definition of the word "person" in the Fair
Dealership Law.
10
For a nearly identical statement in a more recent version
of Sands, see 3 Singer, supra note 6, § 62.1, at 377-78.
11
Town of Janesville v. Rock Cty., 153 Wis. 2d 538, 542-44,
451 N.W.2d 436 (Ct. App. 1989); DNR v. City of Waukesha, 184
Wis. 2d 178, 194-95, 515 N.W.2d 888 (1994), overruled in part by
State ex rel. Auchinleck v. Town of Grange, 200 Wis. 2d 585,
597, 547 N.W.2d 587 (1996).
8
No. 2015AP2366.ssa
¶94 Fourth, the legislature has not defined "person" for
the Fair Dealership Law. When the legislature wants the word
"person" to mean a governmental body, it knows how to write such
a definition. When the legislature wants to govern a
governmental body, it has included one or more words in the
enumeration of "person" conveying that meaning. Yet, the
legislature did not refer to a governmental body in the
definition of "person" in the Fair Dealership Law.
¶95 The legislature often defines words exclusively and
distinctively for particular statutory enactments.12
"[S]pecially-defined words or phrases are given their technical
or special definitional meaning."13
¶96 For example, the Wisconsin antitrust law unequivocally
defines "person" for purposes of that law to include
"individuals, the state and all its political subdivisions, all
counties, cities, villages, towns, school districts,
governmental agencies and bodies politic and corporate, and all
corporations . . . . " Wis. Stat. § 133.02(3).
12
See, e.g., State v. Neumann, 2013 WI 58, ¶73, 348
Wis. 2d 455, 832 N.W.2d 560 ("The word 'recklessly' is defined
differently in the second-degree reckless homicide statute (Wis.
Stat. § 939.24(1)) and in the criminal child abuse statute
§ 948.03(1)), resulting in requiring different mens rea.").
13
DOJ v. DWD, 2015 WI 114, ¶22, 365 Wis. 2d 694, 875
N.W.2d 545 (citation omitted). See also Bruno v. Milwaukee
Cty., 2003 WI 28, ¶8, 260 Wis. 2d 633, 660 N.W.2d 656 ("We have
'long recognized that when a court construes an ordinance or
statute, words must be given their common meaning.' It is also
'well established that technical words or phrases with a
peculiar meaning in the law must be construed according to such
meaning.'") (quoted sources omitted).
9
No. 2015AP2366.ssa
¶97 The Fair Dealership Law unequivocally defines "person"
for purposes of the Fair Dealership Law. Unlike in the
antitrust act, the definition of the word "person" in the Fair
Dealership Law does not refer to a "governmental agency," a
"municipal corporation," a "body politic," a "municipality," a
"county," a "city," a "town," a "school district," a "political
subdivision," or similar words referring to a governmental body.
¶98 In Wis. Stat. § 990.01(26), the legislature defines
"person" as including "all partnerships, associations and bodies
politic or corporate." This definition applies to the
interpretation of Wisconsin laws "unless such construction would
produce a result inconsistent with the manifest intent of the
legislature." The legislature has manifested its intent that
this definition of "person" in § 990.01(26) does not apply in
the instant case; the legislative special definition of "person"
in the Fair Dealership Law is inconsistent with the definition
of "person" in § 990.01(26). The special definition of "person"
in the Fair Dealership Law controls. It does not reference
"body politic."
¶99 This court has stated numerous times that the plain
meaning of the statutory text is the controlling interpretive
rule in this court. This court assumes that the legislature
says what it means and means what it says. Heritage Farms, Inc.
v. Markel Ins. Co., 2009 WI 27, ¶14 n.9, 316 Wis. 2d 47, 762
N.W.2d 652 (stating that "courts must presume that a legislature
says in a statute what it means and means in a statute what it
says there;" "every word excluded from a statute must be
10
No. 2015AP2366.ssa
presumed to have been excluded for a purpose") (citations
omitted); Umansky v. ABC Ins. Co., 2009 WI 82, ¶102, 319
Wis. 2d 622, 769 N.W.2d 1 (Ziegler, J., dissenting) (same); See
also Ball v. Dist. No. 4, Area Bd. of Vocational, Technical &
Adult Educ., 117 Wis. 2d 529, 539, 345 N.W.2d 389 (1984)
("The . . . presumption is that the legislature chose its terms
carefully and precisely to express its meaning.").
¶100 Applying this interpretive rule in the instant case, I
conclude that the City of Madison does not fall within the
definition of the word "person" in the Dealership Law.
¶101 Fifth, the City is not a "corporation" in the
definition of "person" under the Fair Dealership Law. The word
"corporation" is not defined in the Fair Dealership Law.
¶102 The majority opinion proffers four cases to support
its conclusion that the City of Madison is a "corporation" under
the definition of "person" in the Wisconsin Fair Dealership Law.
None of the cases interprets the words "person" or "corporation"
in the context of the Fair Dealership Law.
¶103 Three of the four cases are not Wisconsin cases. Each
of these non-Wisconsin cases involved a different federal or
state statute, and in no statute did the statutory definition of
"corporation" include a local political subdivision. None of
these non-Wisconsin cases defines "person" as "person" is
defined in the Wisconsin Fair Dealership Law.
¶104 In each of these three cases the court examined the
definition of the word "corporation," the context of the
definition, the purpose of the statute, and the operation of the
11
No. 2015AP2366.ssa
statute. See City of Lincoln v. Ricketts, 297 U.S. 373 (1936);
Hoye v. United States, 277 F.2d 116 (9th Cir. 1960); Madison
Cty. Fiscal Court v. Kentucky Labor Cabinet, 352 S.W.3d 572 (Ky.
2011). In each case the court concluded that the legislature
intended the word "corporation" to include the political
subdivision at issue.
¶105 That said, these cases neither support the majority
opinion's view that the word "corporation" in the Fair
Dealership Law includes the City of Madison nor undercut my
conclusion that the word "corporation" does not include the City
of Madison. Rather, these three non-Wisconsin cases stand for
the unremarkable proposition that in some instances, legislation
included a governmental entity within the word "corporation."
¶106 The majority opinion seems to champion the notion that
every time the word "corporation" is used in a statute it refers
to a municipal corporation. If this is the majority opinion's
claim, it is wrong. If, however, the majority opinion claims
that in some statutes the word "corporation" may be interpreted
to include a municipal corporation, this claim is supported by
the three non-Wisconsin cases.
¶107 Indisputably, the City of Madison is sometimes
referred to as a municipal corporation. But the question in the
instant case is whether a municipal corporation is a
"corporation" within the meaning of the word "corporation" in a
particular statute.
¶108 The particular statute in the instant case is the Fair
Dealership Law, and the question presented is: Does the word
12
No. 2015AP2366.ssa
"corporation" in the definition of "person" in the Law include a
municipal corporation?
¶109 The fourth case that the majority opinion relies on,
City of Madison v. Hyland, Hall & Co., 73 Wis. 2d 364, 243
N.W.2d 422 (1976), relates to yet a different statute, the
Wisconsin antitrust act. In its discussion of Hyland, Hall &
Co., the majority opinion continues what appears to be a
misguided attempt to demonstrate that municipal corporations
fall within the word "corporation" every time a statute uses the
word "corporation."
¶110 In Hyland, Hall & Co., the City of Madison (in its
capacity as a City and school district) sued a private
corporation under the Wisconsin antitrust act for damages for
fixing bids on plumbing contracts. At the time, Wis. Stat.
§ 133.01 provided that "any . . . person, corporation,
copartnership, trustee or association" shall be liable "to any
person transacting or doing business in this state" for treble
damages for violating the Act. Section 133.04 of the act stated
that the word "person" "shall be deemed to include, besides
individuals, corporations, partnerships and associations
existing under or authorized by the laws of the United States,
any of the territories, of this or any other state or any other
state . . . ."
¶111 The defendants in Hyland, Hall & Co. argued that the
City of Madison was not a person within the definition of Wis.
Stat. § 133.04 and was not entitled to seek treble damages under
13
No. 2015AP2366.ssa
the antitrust act. The court rebuffed the defendant's position
on several grounds.
¶112 Quoting Wis. Stat. § 66.019, the court noted that the
city is "a body corporate and politic, with powers and
privileges of a municipal corporation at common law and
conferred by these statutes." The court then read Wis. Stat.
§§ 133.04 and 990.01(26) together and concluded that the City
was a person (that is, a corporation existing under Wisconsin
law) that could be a plaintiff in an antitrust suit. At the
time Hyland, Hall & Co. was decided, § 990.01 stated that
"'person' includes all partnerships, associations and bodies
politic and corporate." The court's brief discussion of why
these two provisions were to be read together is, in my opinion,
garbled and hard to understand.
¶113 Perhaps that is why the Hyland, Hall & Co. decision
did not rely on this reasoning alone. The court went on to
explain in Hyland, Hall & Co. that the interpretation of the
Wisconsin antitrust act was governed by the interpretation of
the federal Sherman Act. Under the Sherman Act, the civil
remedy of treble damages had been afforded to a municipality.
Hyland, Hall & Co., 73 Wis. 2d at 375. Thus, the court
interpreted the Wisconsin statute as affording the City a civil
remedy of treble damages.
¶114 The Hyland, Hall & Co. court did not, however, decide
whether the City would be subject to a treble-damage judgment if
it were a defendant (rather than a plaintiff) in an antitrust
case. The court explicitly acknowledged that the words "person"
14
No. 2015AP2366.ssa
and "corporation" in the antitrust act might have different
meanings depending on whether the City was a plaintiff or
defendant in an antitrust suit. Hyland, Hall & Co., 73 Wis. 2d
at 375.14 According to the court, "the right to sue for treble
damages and liability to suit are not necessarily reciprocal."
Hyland, Hall & Co., 73 Wis. 2d at 376.
¶115 Hyland, Hall & Co. is not on all fours and does not
govern the instant case. Hyland, Hall & Co. involves a
different statute and different definitions than those in the
instant case, and the antitrust Act and the Fair Dealership Law
serve different purposes. Hyland, Hall & Co. stands for the
unremarkable, well-accepted proposition that the words "person"
and "corporation" can have different meanings in different
statutes.
¶116 The persuasiveness of the four cases the majority
opinion cites is significantly undermined by the general rule
that the legislature can ascribe different meanings to the same
word in different statutes (and sometimes even in the same
statute).
14
"'Most words have different shades of meaning and
consequently may be variously construed, not only when they
occur in different statutes, but when used more than once in the
same statute or even in the same section.' . . . A given term in
the same statute may take on distinct characters from
association with distinct statutory objects calling for
different implementation strategies. The point is the same even
when the terms share a common statutory definition . . . ."
Envtl. Defense v. Duke Energy Corp., 549 U.S. 561, 574 (2007).
15
No. 2015AP2366.ssa
¶117 I conclude that the City of Madison does not fall
within the definition of the word "corporation" in the
definition of "person" in the Fair Dealership Law.
¶118 Sixth, the City does not fall within the phrase "other
entity" in the definition of "person" under the Dealership Law.
The phrase "other entity" can signify a wide variety of
entities. There is no legislative history supporting the
conclusion that "other entities" in the Fair Dealership Law
refers to municipal corporations.
¶119 The ejusdem generis canon of interpretation, a
variation of the maxim noscitur a sociis, is helpful in
interpreting the phrase "other entity" in the instant case.15
¶120 Ejusdem generis applies when general words (for
example, "other entity" in the instant case) follow specific
words enumerated in a statutory list.16
¶121 The canon advises that the general words "other
entities" are interpreted to embrace only bodies similar in
nature to those enumerated by the preceding specific words. The
entities enumerated in Wis. Stat. § 135.02(6) are set forth in
terms of entities conducting business or commerce.
15
2A Singer, supra note 6, § 47:17, at 364-65. The
majority opinion refers to "noscitur a sociis."
16
2A Singer, supra note 6, § 47:17 at 364-65.
For further discussion of the ejusdem generis canon, see La
Barge v. State, 74 Wis. 2d 327, 332-34, 246 N.W.2d 794 (1976).
The doctrine of ejusdem generis is inapplicable if the text
has a clear, plain and reasonable meaning on its face. State v.
Peters, 2003 WI 88, ¶14, 263 Wis. 2d 475, 665 N.W.2d 171.
16
No. 2015AP2366.ssa
¶122 The Golf Pros in effect assert that inasmuch as the
entities enumerated as "persons" conduct business and commerce,
the City of Madison can and should be bound by the Fair
Dealership Law when it engages in business and commerce as a de
facto private enterprise. The Golf Pros argue that the City
should be held to the same standard as any private golf course
operation under the Fair Dealership Law.
¶123 But a municipality, in contrast to a private entity,
does not engage in business or commerce for the purpose of
profit or revenue. A municipality's power is limited to
engaging in activities in furtherance of its powers and in
furtherance of the public interest. In the instant case, the
City has the express power to operate golf links. Although the
City of Madison operates golf links that might have belonged to
and been operated by a private entity, the City is not
necessarily treated under the law in the same way as a private
enterprise operating golf links.17
¶124 Applying the interpretive canon of ejusdem generis in
the instant case, I conclude that the City of Madison does not
fall within the definition of "other entity" and does not fall
within the definition of the word "person" in the Dealership
Law.
17
See Wisconsin Carry, Inc. v. City of Madison, 2017 WI 19,
373 Wis. 2d 543, 892 N.W.2d 233 (2017) (a city operating a bus
enterprise is not treated the same as a private enterprise
operating a bus service).
17
No. 2015AP2366.ssa
¶125 Seventh, the majority opinion errs in relying on Wis.
Stat. § 135.07 and the canon expressio unius est exclusio
alterius (the expression of one thing excludes another) to
conclude that the City of Madison falls within the definition of
"person" within the Fair Dealership Law.18 See majority op.,
¶32.
¶126 In Wis. Stat. § 135.07, the legislature excluded three
specified entities from the application of the Fair Dealership
Law. This statute provides as follows:
135.07 Nonapplicability. This chapter does not
apply:
(1) To a dealership to which a motor vehicle dealer or
motor vehicle distributor or wholesaler as defined in
s. 218.0101 is a party in such capacity.
(2) To the insurance business.
(3) Where goods or services are marketed by a
dealership on a door to door basis.
¶127 The majority opinion asserts that when the legislature
expressly excludes something from a statute it does not intend
to exclude anything else.19 Majority op., ¶32. Thus, asserts
the majority opinion, because Wis. Stat. § 135.07 creates only
three exceptions to the Fair Dealership Law, the legislature
intended no other exceptions. Applying the canon to § 135.07,
18
The Golf Pros cite Caflisch v. Staum, 2000 WI App 113,
¶13, 235 Wis. 2d 210, 612 N.W.2d 385, for the expression of the
expressio unius est exclusio alterius canon: "When the
legislature provides a finite list of exceptions to a general
rule, [courts] presume that the legislature did not intend other
exceptions."
19
See 2A Singer, supra note 6, § 47:23, at 406-13.
18
No. 2015AP2366.ssa
the majority opinion concludes that because the City is not
excepted as one of the three statutory exceptions, the City is
not excepted from the Fair Dealership Law.20
¶128 A canon may be overcome by a strong indication of
contrary legislative intent. And a contrary legislative intent
is strong in the instant case.
¶129 The three excepted entities clearly fall within the
statutory definition of "person" to which the Fair Dealership
Law is applicable: a motor vehicle dealership, the insurance
business, and door-to-door dealerships. This section excludes
three "persons" to which the Fair Dealership Law would otherwise
apply. Section 135.07 does not exclude these three entities
from the definition of "persons."
¶130 In contrast, the City of Madison does not fall within
the statutory definition of "person" to which the Fair
Dealership Law is applicable. Therefore the legislature did not
have to exclude the City of Madison from the application of the
Fair Dealership Law in Wis. Stat. § 135.07.
¶131 Accordingly, applying the text of Wis. Stat. § 135.07
and the canon, I conclude that the City of Madison does not fall
within the definition of "person" under the Fair Dealership Law.
¶132 Eighth, the legislative declaration that the Fair
Dealership Law be "liberally construed and applied to promote
its underlying remedial purposes and policies," Wis. Stat.
20
See Foster v. State, 70 Wis. 2d 12, 20, 233 N.W.2d 411
(1975) (this "statute stops with the single exception it
creates").
19
No. 2015AP2366.ssa
§ 135.025(1), does not mean that the boundaries of coverage of
the Law are to be construed extensively.21 Moreover, the court
places heavy emphasis on the right of free contract, declaring
that "the right of free contract is a property right protected
by both state and federal constitutions and should not be
lightly impaired." Kania v. Airborne Freight Corp., 99
Wis. 2d 746, 774-75, 300 N.W.2d 63 (1981).
¶133 Ninth and finally. No case has been cited, and I
could not find any, applying a dealership statute to a
governmental entity.
¶134 More than 20 states apparently have statutes similar
to the Wisconsin Fair Dealership Law. Gary W. Leydig, Survey of
State Dealer Laws at 3 n.11,
http://www.leydiglaw.com/userfiles/file/survey%20of%20state%20de
aler%20laws.pdf. According to Leydig's survey, the Wisconsin
Fair Dealership Law, enacted in 1973, is "one of the oldest and
most litigated dealership statutes on the books." The Wisconsin
Fair Dealership Law has served as a reference for other states
in interpreting and applying their own statutes. See Leydig,
Survey of State Dealer Laws at 5.
21
This court has given a narrow interpretation of the
legislature's instruction to give a statute a "liberal
interpretation construction." See, e.g., DOJ v. DWD, 2015 WI
114, ¶¶30-34, 365 Wis. 2d 694, 875 N.W.2d 545.
The Fair Dealership Law's liberal construction rule does
not apply to whether the Law applies to a particular contract in
the first instance. See H. Phillips Co., Inc. v. Brown-Forman
Distillers Corp., 483 F. Supp. 1289, 1291 (W.D. Wis. 1980).
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¶135 Using WestLaw, I searched cases in many states and I
could find no reported cases in these jurisdictions that apply
the dealership statutes to a contract between a governmental
entity and a private entity. This lack of any cases is
persuasive that the dealership statutes are not applicable to
political subdivisions.
* * * *
¶136 The majority opinion forsakes the usual rules of
statutory interpretation in deciphering the meaning of the word
"person" in the Wisconsin Fair Dealership Law. Its analysis
neglects to address the relationship of the Dealership Law,
municipal constitutional and statutory home rule, and other
statutes governing governmental entities. Its weak analysis
inevitably leads the majority opinion to the wrong conclusion.
And I am concerned, as I stated previously, that the majority
opinion has not considered the consequences of its
interpretation of the word "person" and that it is establishing
a far-reaching precedent that will produce unreasonable
results.22
¶137 For the reasons I have set forth, I write in dissent.
I conclude that the City of Madison does not fall within the
definition of "person" for the purposes of Wis. Stat. chapter
135.
22
See Anderson v. Aul, 2015 WI 19, ¶114, 361 Wis. 2d 63,
862 N.W.2d 304 (Ziegler, J., concurring) (asserting that the
plain meaning analysis includes consideration of consequences of
alternative interpretations to avoid unreasonable results).
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¶138 Accordingly, I would affirm the judgment of the
circuit court and the decision of the court of appeals but on
the ground that the Fair Dealership Law does not apply to the
City of Madison.
¶139 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
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