September/October 2019 Issue

Also in this issue: Local Governments Buy in to Large Scale Solar Projects     |     Court Of Appeals Upholds Denial of Cell Tower Permit

Supreme Court Narrowly Affirms Discretionary Governmental Immunity

Jared Walker Smith | 10.01.19

In a recent case, the Wisconsin Supreme Court continued to allow governmental immunity under Wis. Stat. § 893.80(4) for discretionary acts of a municipality, but the narrow majority and subsequent retirement of Justice Abrahamson leaves the future of governmental immunity unclear. 

According to the facts in Pinter v. Village of Stetsonville, 2019 WI 74, the Village of Stetsonville operates a wastewater disposal system that includes two lift stations that pump sewage to a treatment plant. During rainstorms these lift stations may fill up faster than the sewage can be pumped. Village employees had a ​“rule of thumb” that the department would bypass the water treatment facility — pump untreated wastewater into a nearby ditch — when the sewage levels inside the lift stations reached a certain height, as measured on the rungs of a ladder. During a heavy rain event in 2014, both lift stations reached high levels. Rather than immediately bypass, the director of public works decided to have a septic hauling company manually pump and transport waste from the lift stations to the treatment plant. This solution proved insufficient and wastewater backed up into Pinter’s basement. 

Subsequently, Pinter brought claims of negligence and private nuisance against the Village, alleging that the Village’s ​“rule of thumb” created a ministerial duty to bypass. The Village contended that the ​“rule of thumb” required the exercise of discretion, thereby affording the Village immunity from liability. 

In granting summary judgment to the Village and dismissing Pinter’s negligence cause of action, the circuit court agreed that the ​“rule of thumb” did not create a ministerial duty requiring the Village to bypass. While not further analyzed in this article, the circuit court also dismissed Pinter’s cause of action for private nuisance, finding that Pinter had not met his burden of proof. The court of appeals affirmed the circuit court. In a narrow four to three ruling, the Wisconsin Supreme Court affirmed the court of appeals and the longstanding interpretation of Wisconsin’s governmental immunity statute, Wis. Stat. § 893.80(4). 

The governmental immunity statute provides local governments immunity from liability for ​“acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions,” which the Wisconsin Supreme Court interprets to include any acts that involve the exercise of discretion by a public official or employee. One of the exceptions to governmental immunity is where a duty is ​“ministerial.” A duty is ministerial when the duty is absolute, certain and imperative, involving merely the performance of a specific task and the law specifies the mode of performance with such certainty that nothing remains for judgment or discretion. 

Outside of defending existing jurisprudence, the majority opinion finding that the Village was immune from liability for a discretionary act is not particularly notable. The majority noted that the ​“rule of thumb” was an oral policy, subject to mixed interpretations, and, at best, indicated a signal to ​“do something.” The majority cited DNR regulations that prohibited a bypass unless a municipality can demonstrate that (1) the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; (2) there were no feasible alternatives; and (3) the bypass was reported to the DNR by the municipality. The majority opined that both the first and second conditions require an exercise of discretion, inferring that the ​“rule of thumb” could not abrogate the municipality’s obligation to consider multiple situational factors in a decision to bypass. 

The dissenting opinion, written by Justice Dallet and joined by justices R.G. Bradley and Kelly, advocated abrogating the Court’s jurisprudence and ​“return[ing] to the plain text of § 893.80(4).” Under the dissent’s interpretation, governmental immunity would only apply for agents or employees of a governmental entity ​“who are engaged in an act that, in some sense or degree, resembles making laws or exercising judgments related to government business.” Applying this interpretation to the facts, the dissent argued that the Village is not entitled to governmental immunity because the Village employees ​“were not making any laws or exercising any judgments related to government business” nor were they ​“making balanced policy decisions for wastewater management on behalf of the Village for which the protection of immunity was intended.” (Emphasis added.) 

In response, the majority warned that ​“adopting the dissent’s reasoning would effectively pull the rug out from under municipalities … that have managed their affairs relying upon our decades-old interpretation of the governmental immunity statute.” (Internal quotations omitted.) Consequently, while the law of local governmental immunity remains unchanged, this case serves as the canary in the coal mine for the existing interpretation of governmental immunity.