State v. Schweda

2007 WI 100, 736 N.W.2d 49, 303 Wis. 2d 353, 2007 Wisc. LEXIS 429

• Court: Wisconsin Supreme Court
• Decided: July 13, 2007
• Docket: 2005AP1507
• Status: Published

Opinions

ANN WALSH BRADLEY, J.

¶ 1. This case is before the court on certification from the court of appeals pursuant to Wis. Stat. (Rule) § 809.61 (2005-06).¹ The defendants, William F. Schweda, Jeffrey G. Schweda, and ECI Special Waste Services, Inc. (collectively, ECI) appeal an order and a judgment of the circuit court for Fond du Lac County, Judge Peter L. Grimm presiding. The order granted the State's motion to strike ECI's demand for a jury trial. The circuit court concluded that the constitutional right to a jury trial does not attach to an action seeking forfeitures for violations of waste disposal regulations.² After a trial to the court, the circuit court entered a judgment in favor of the State.

¶ 2. ECI maintains that the circuit court erred in striking its demand for a jury trial. It contends that the causes of action asserted by the State are analogous to common law nuisance claims. It further contends that because common law nuisance claims existed in 1848, and because such claims were actions at law in 1848, the State's claims fulfill the criteria for a constitutional right to a jury trial under Village Food & Liquor Mart v. H & S Petroleum, 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177.

¶ 3. Applying the Village Food test, we determine that the claims asserted in the State's complaint do not give rise to a constitutional right to a jury trial. Common law nuisance causes of action are not sufficiently analogous to be considered "essential counterparts" to the modern day regulatory claims asserted here. Therefore, ECI fails the first prong of the Village Food test because the claims asserted did not exist, were not known, and were not recognized at common law at the time the state's constitution was adopted. Id., ¶ 16.

¶ 4. Our determination, however, does not preclude the constitutional right to a jury trial in all environmental regulatory cases. Such a right exists if the asserted claim has an essential counterpart that existed at common law in 1848 and was recognized as an action at law in 1848. Id.

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¶ 5. William and Jeffrey Schweda are owners of ECI Special Waste Services, Inc., a "centralized waste treater" pursuant to Wis. Admin. Code § NR 211.03(2e)(Oct., 2002). ECI collects waste from client industries, transports the waste to its treatment facility, and pre-treats the waste to comply with specific discharge limitations which are governed by a pretreatment permit issued by the City of Fond du Lac ("City"). ECI then discharges the waste into a sanitary sewer that goes into the City's municipal wastewater treatment plant. ECI's permit requires compliance with effluent limitations, monitoring requirements, and other conditions which are set forth in the permit. ECI also must comply with Wis. Admin. Code ch. 211, which governs centralized waste treaters.

¶ 6. William Schweda began working at ECI as a salesman in 1999 and part of his compensation was shares of stock in the company. In July 2001 William's brother, Jeffrey Schweda, purchased the remaining shares of stock from the founder for $225,000. This purchase made the Schweda brothers the owners of ECI.

¶ 7. In January 2002 the City's wastewater treatment plant experienced an upset condition that caused the City to exceed its discharge limits under its permit for oxygen-consuming organic waste and total suspended solids.³ In March and April of 2002, the City again experienced an upset and consequent permit violation. The City was able to determine that the upsets of the treatment facility were due to high concentrations of surfactants in the wastewater.

¶ 8. The City began sampling the discharges coming from ECI's treatment facility and the samples revealed that ECI persistently exceeded the discharge limits in its permit. During the year in which they operated ECI, the Schwedas used almost no chemicals, disposed of almost no sludge, tested only for pH, did not use the one machine in their laboratory that determined how to treat metals in the wastes they accepted, and did not send any waste samples out for independent laboratory testing. In August 2002, the City revoked ECI's permit to operate as a wastewater treatment facility and the Schwedas closed the facility.

¶ 9. The State brought suit against the Schwedas, alleging that ECI failed to comply with the conditions of their permit and with requirements under the state administrative code and state statutes during the time that the Schwedas owned ECI. The complaint asserted fifteen claims for relief arising out of ECI's operations. The State sought forfeitures for ECI's violations under Wis. Stat. §§ 281.98(1), 283.91(2), 289.96(3)(a), and 291.97(1), penalties pursuant to Wis. Stat. § 757.05(l)(a), and the environmental assessment available under Wis. Stat. § 299.93.

¶ 10. ECI demanded a jury trial, and the State moved to strike. The circuit court granted the State's motion, determining that ECI failed to demonstrate that the State's action met either of the two prongs of the test for a constitutional right to a jury trial set forth in Village Food.

¶ 11. The case was tried to the court. The circuit court determined that ECI was liable for some, but not all, of the violations alleged, and imposed forfeitures for the time period the Schwedas owned and managed ECI. ECI appealed, and the court of appeals certified the case on the question of a right to jury trial under Article I, Section 5 of the Wisconsin Constitution.

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¶ 12. This case addresses the issue of whether a cause of action gives rise to a right to a jury trial under Article I, Section 5 of the Wisconsin Constitution. Whether there is a constitutionally guaranteed right to a jury trial for a particular cause of action requires us to interpret a provision of the state constitution, which we do independently of the determination rendered by the circuit court. Vill. Food, 254 Wis. 2d 478, ¶ 7.

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¶ 13. ECI maintains that the circuit court erred in striking its demand for a jury trial. It contends that the causes of action asserted by the State are analogous to common law nuisance claims. It further argues that because common law nuisance claims existed at common law in 1848, and because such claims were actions at law in 1848, the State's claims fulfill the criteria for a constitutional right to a jury trial under Village Food.

¶ 14. We disagree. Applying the Village Food test, we determine that the claims asserted in the State's complaint do not give rise to a constitutional right to a jury trial. Common law nuisance causes of action are not sufficiently analogous to be considered "essential counterparts" to the modern day regulatory claims asserted here. Therefore, ECI fails the first prong of the Village Food test because the claims asserted did not exist, were not known, and were not recognized at the time the state's constitution was adopted.

¶ 15. Our conclusion is consistent with the determinations of other states which have addressed a similar issue.⁴ Like other states, we begin our examination by reviewing our state constitution.

¶ 16. Under Article I, Section 5 of the Wisconsin Constitution, the right to a jury trial "shall remain inviolate." Section 5 provides in full:

The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law. Provided, however, that the legislature may, from time to time, by statute provide that a valid verdict, in civil cases, may be based on the votes of a specified number of the jury, not less than five-sixths thereof.

¶ 17. While Article I, Section 5 provides that the right "shall remain inviolate," it does not apply to all matters. Historically, it has been interpreted to apply only to civil cases. Dane County v. McGrew, 2005 WI 130, ¶ 13, 285 Wis. 2d 519, 699 N.W.2d 890; Bennett v. State, 57 Wis. 69, 74, 14 N.W 912 (1883). Jury trial in criminal cases falls under the purview of Article I, Section 7.

¶ 18. Moreover, Section 5 has been interpreted to mean that the right is preserved to the extent that it existed at the time of the adoption of the state constitution in 1848. See McGrew, 285 Wis. 2d 519, ¶ 15; Town of Burke v. City of Madison, 17 Wis. 2d 623, 635, 117 N.W.2d 580 (1962). Three cases comprise this state's recent jurisprudence on the question of when the right to a jury trial as it existed in 1848 creates a constitutional right to a jury trial in a contemporary cause of action, State v. Ameritech Corp., 185 Wis. 2d 686, 517 N.W.2d 705 (Ct. App. 1994), Village Food, and McGrew.

¶ 19. In Ameritech, the court of appeals adopted a two-prong test for determining whether a statutory cause of action gives rise to a constitutional right to a jury trial. It determined that there is such a right where "(1) the statute codifies an action known to the common law in 1848; and (2) the action was regarded as at law [i.e., rather than at equity] in 1848." 185 Wis. 2d at 690 (emphasis in original).

¶ 20. This court examined the Ameritech decision in Village Food. 254 Wis. 2d 478, ¶ 9. We refined the first prong of the Ameritech test so that an action need not be based on the codification of a specific common law action that existed in 1848. Rather, the action must have existed, been known, or been recognized at common law in 1848. We stated the test as follows:

[A] party has a constitutional right to have a statutory claim tried to a jury when: (1) the cause of action created by the statute existed, was known, or recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848; and (2) the action was regarded as at law in 1848.

Vill. Food, 254 Wis. 2d 478, ¶ 16.

¶ 21. This court has been unanimous in concluding that the Village Food test is the correct test to apply in determining whether a cause of action gives rise to a constitutional right to a jury trial. The application of the test to particular causes of action has not occasioned similar consensus. The Village Food and McGrew decisions were both divided on the question of application. Regardless of those divisions, however, the court has been univocal in rejecting the temptation to carve out a constitutional right to a jury trial based on broad analogies between modern causes of action and causes of action at statehood.

¶ 22. Village Food involved allegations that the defendant violated Wis. Stat. §§ 100.30(2)(am)lm.c and 100.30(3) (1999-2000), which require minimum markups for the sale of motor vehicle fuel. In applying the two-part test, the Village Food majority explicitly rejected the defendant's attempt to analogize the cause of action to that in Getty v. Rountree, 2 Pin. 379 (Wis. 1850), which involved fraud and breach of implied warranty. Although the two cases were similar insofar as both involved business torts in which one party alleged harm, such broad-brush similarity was insufficient for the court to conclude that the cause of action for violating minimum mark-up laws existed, was known, or was recognized at common law. Vill. Food, 254 Wis. 2d 478, ¶ 25.

¶ 23. Instead, the court determined that the mark-up laws are "of the same 'nature'" as the common law crimes of forestalling the market, regrating, and engrossing. Id., ¶ 27 (citing, inter alia, 4 William Blackstone, Commentaries on the Laws of England, ch. 12, at 158-59 (1778)). Thus, the Village Food majority rejected drawing an analogy between a modern statutory cause of action and a common law cause of action based on exceedingly general descriptions. Rather, it employed a narrower description of the actions to determine whether they were analogous. Because the claims at issue were "essentially counterparts" to the common law offenses, the majority determined that the claims gave rise to a constitutional right to a jury trial. Vill. Food, 254 Wis. 2d 478, ¶ 28 (citing Ameritech, 185 Wis. 2d at 697).

¶ 24. The concurrence/dissent in Village Food agreed with the majority regarding the test for determining whether there is a right to a jury trial, but disagreed regarding whether violations of Wis. Stat. § 100.30 met the test. Id., ¶ 35 (Wilcox, J., concurring in part and dissenting in part). It viewed the Unfair Sales Act as a "detailed scheme for the regulation of commercial pricing practices ...." Id., ¶ 45, and concluded that the claims alleged did not exist, were not known, and were not recognized at common law. Id., ¶ 47.

¶ 25. Further the concurrence/dissent warned that such a broad classification would render the Village Food test a nullity because "present causes of action of all sorts assessed under this test will only have to be compared generally... in order to invoke the constitutional protection to a trial by jury." Id., ¶ 46. Thus, the Village Food majority and concurrence/dissent agreed on the appropriate test, and agreed that the constitutional right to a jury trial cannot be based on a very broad analogy to a cause of action at statehood. They disagreed only on the matter of how narrow the analogy may be.

¶ 26. In McGrew, this court split on the question of whether there is a constitutional right to a jury trial in a cause of action for speeding pursuant to Wis. Stat. § 346.57(4)(h) (2001-02). In the lead opinion, three justices rejected the view that speeding was analogous to the common law nuisance offenses of "annoyances in highways, bridges, and public rivers, by rendering the same inconvenient or dangerous to pass . . . 285 Wis. 2d 519, ¶ 24 (quoting 4 Blackstone, supra, at 167).

¶ 27. The lead opinion stated that "the class of actions categorized as 'nuisances' [is] simply too broad to be analogized to a speeding violation. . . . [T]hey are not 'essentially counterparts.'" Id., ¶ 25. It warned that analyzing causes of action in terms so broad "would lead to a jury trial in virtually every forfeiture case." Id., ¶ 28.

¶ 28. The concurrence and dissent in McGrew, totaling four justices, concluded that the defendant did have a constitutional right to a jury trial.⁵ However, the conclusion was not premised on drawing an analogy between speeding and the very broad category of nuisances for "annoyances in highways, bridges, and public rivers by rendering the same inconvenient or dangerous to pass ... ." Rather, it was based on the narrower analogy between speeding and the rules of the road set forth in Wisconsin's statutes of 1849. Id., ¶ 59 (Bradley, J., concurring) (citing Wis. Stat. ch. 33 (1849)); see also id., ¶ 74 (Butler, J., dissenting). Similar to Village Food, the court agreed on the test for whether a cause of action gives rise to a right to a jury trial, and it agreed that such a right cannot be based upon a very broad analogy between the claim at issue and a cause of action at statehood. The court's disagreement concerned precisely how narrowly to draw the analogy in the first prong of the Village Food test.

¶ 29. Turning to the present case, we must determine whether ECI has a constitutional right to a jury-trial for the causes of action in the State's complaint under the Village Food test. As noted, the first prong of the test is whether the cause of action "existed, was known, or recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848." Vill. Food, 254 Wis. 2d 478, ¶ 16. In applying the first part of the test, we are again confronted with the question of how narrowly to draw the analogy between the claims at issue and causes of action at statehood.

¶ 30. ECI raises only one argument for why the causes of action in the State's complaint meet the first part of the Village Food test. It maintains that it has a right to a jury trial for the. claims in the State's complaint because those claims are "essentially a counterpart to common law nuisance." The State's claims are based upon statutes and regulations that are "environmental" in nature. At statehood, environmental protection was achieved by common law actions in public and private nuisance. ECI therefore contends that the environmental nature of the State's claims and the environmental aspect of common law nuisance warrant the conclusion that the State's claims "existed, [were] known, or recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848." Vill. Food, 254 Wis. 2d 478, ¶ 16.⁶

¶ 31. There is no question that modern environmental law finds its roots in common law nuisance. A leading treatise on environmental law states:

The deepest doctrinal roots of modern environmental law are found in principles of nuisance. . . . Nuisance actions have involved pollution of all physical media— air, water, land — by a wide variety of means. . . . Nuisance actions have challenged virtually every major industrial and municipal activity which is today the subject of comprehensive environmental regulation .... Nuisance theory and case law is the common law backbone of modern environmental and energy law.

William H. Rodgers, Jr., Handbook on Environmental Law, § 2.1, at 100 (1977).

¶ 32. However, there are vital differences between nuisance law and modern environmental regulatory law. For one, nuisance is a sprawling concept. Historically, "nuisance" has been a term so broad that it could encompass a vast array of causes of action. It included everything from an alarming advertisement to a cockroach baked in a pie.

There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word "nuisance." It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition. Few terms have afforded so excellent an illustration of the familiar tendency of the courts to seize upon a catchword as a substitute for any analysis of a problem ....

W Page Keeton, Prosser and Keeton on the Law of Torts, § 86, at 616-17 (5th ed. 1984).

¶ 33. Such vagueness is demonstrated by the mé-lange of causes of action characterized as public nuisances. Prosser and Keeton further detail such offenses as eavesdropping on a jury and being a common scold as constituting public nuisance. Id., § 90, at 643-44.

¶ 34. This court has demonstrated its wariness of basing a constitutional right to a jury trial on such a broad analogy. See McGrew, 285 Wis. 2d 519, ¶¶ 25, 28; Vill. Food, 254 Wis. 2d 478, ¶¶ 23-25. We are therefore cautious here as well. Having "doctrinal roots" in nuisance is not alone sufficient for a modern cause of action to be "essentially a counterpart" to nuisance actions. We note that a modern statutory claim may codify a common law nuisance action that existed, was known, or recognized in 1848 and thereby meet the first prong of the Village Food test. However, the modern cause of action requires more than a passing resemblance to the action. As we put it in Village Food, it must be "essentially [a] counterpart." Id., ¶ 28.

¶ 35. Here, the causes of action are not essentially counterparts to the public nuisance actions that existed at common law. A cause of action for public nuisance requires a showing of substantial and unreasonable harm to interests in the use and enjoyment of land. See Keeton, supra, at 580. Under historic common law nuisance, a party should not seek recovery "until an actual nuisance has been committed, or at all events until it is quite clear that the [conduct] will inevitably result in a nuisance." George V. Yool, An Essay on Waste, Nuisance, and Trespass, 95 (1863). Modern environmental regulatory laws, however, "regulate more subtle and attenuated harms than the common law of nuisance does; a land use that creates a common law nuisance is thus likely to be an a fortiori violation of statutory environmental law." Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 101 F.3d 503, 505 (7th Cir. 1996).

¶ 36. Thus, while a complaint must allege harm in order to state a claim for nuisance, the claims alleged in the State's complaint do not depend upon allegations of harm in order to lie. Rather, the defendants are liable for violations regardless of harm.⁷

¶ 37. Claim 3, for example, alleges violations of Wis. Admin. Code § NR 211.16(l)(c)(Oct., 2002), which requires that a centralized waste treater submit a report to the municipality identifying the types of waste it intends to treat at least 180 days before commencing discharge. It also alleges violations of Wis. Admin. Code § NR 211.16(2), which requires the treater to notify the municipality at least 60 days before accepting a new type of categorical waste not identified in its initial report. Such violations do not require that any actual harm result from the failure to identify the types of waste or notify the municipality of the acceptance of new types of categorical waste.

¶ 38. Claims 1, 4, 5, and 7-14 exhibit the same pattern:

• Claim 1 alleges that ECI "cause[d] or significantly contribute[d] to" the City of Fond du Lac exceeding its discharge permit limits for oxygen-consuming organic waste and total suspended solids in violation of Wis. Admin. Code § NR 211.10(1) (Oct., 2002).

• Claim 4 alleges violations of the limits on concentrations of pollutants in discharges incorporated into ECI's pretreatment permit pursuant to Wis. Admin. Code § NR 261.22(2) (Sept., 1997).

• Claim 5 alleges that ECI failed to notify the City of substantial changes in the character of ECI's discharges, thereby violating Wis. Admin. Code § NR 211.15(6) (Oct., 2002).

• Claim 7 alleges that ECI operated its facility "in ways inconsistent with the approved plans," in violation of Wis. Stat. § 281.98.

• Claim 8 alleges that ECI neglected its obligations as a centralized waste treater under Wis. Admin. Code § NR 211.16(3) (Oct., 2002) and "improperly accepted wastes they were incapable of properly treating, and wastes reasonably expected to cause exceedances of the City's effluent limits."

• Claim 9 alleges that the defendants failed to take representative samples of their effluent to assess compliance with their permit limits in violation of Wis. Admin. Code § NR 211.16(4).

• Claim 10 alleges that ECI violated Wis. Admin. Code § NR 211.16(5) (Oct., 2002), which requires centralized waste treaters to submit to the City semi-annual reports containing information about wastewater treated and discharged into the City's treatment system. It alleges that ECI's reports from the second half of 2001 and the first half of 2002 were incomplete because the reports omitted required information, including "the name and address of each waste's generator, the volume and date of arrival of each wastewater; and the applicable pretreatment standards."

• Claim 11 alleges that the defendants "failed to characterize the waste generated by treatment of the waste ... in violation of Wis. Stat. § 291.21."

• Claim 12 alleges that ECI disposed of hazardous waste at a landfill not licensed to accept such waste, contrary to the requirements under Wis. Stat. § 291.21(9).

• Claim 13 alleges that that the defendants violated the prohibition on operating a hazardous waste facility without an operating license pursuant to Wis. Stat. § 291.25(2)(b) by storing hazardous waste.

• Claim 14 alleges that the defendants failed to properly label containers used for storage of hazardous waste. The State alleges that this violated Wis. Stat. § 291.21(3) and Wis. Admin. Code § NR 615.05(4)(a)5 (May, 1998).

¶ 39. None of the alleged violations is premised upon a showing of harm. Rather, they are regulatory violations for which the defendants are liable regardless of whether harm results. This is an important difference with nuisance. Harm is essential to nuisance, and no cause of action for nuisance may lie absent some allegation of harm. With respect to the claims here, no harm is necessary, and none need be alleged. The kinship between nuisance and these claims is therefore but a distant relationship. Thus, they cannot be considered "essentially counterparts."⁸

¶ 40. The breadth of nuisance is so great that we must narrowly construe the actions that we analogize to nuisance, lest we render the Village Food test a nullity because "present causes of action of all sorts assessed under this test will only have to be compared generally ... in order to invoke the constitutional protection to a trial by jury." Vill. Food, 254 Wis. 2d 478, ¶ 46 (Wilcox, J., concurring and dissenting). Similar to the lead opinion in McGrew, we determine that "the class of actions categorized as 'nuisances' [is] simply too broad to be analogized to" the present cause of action. McGrew, 285 Wis. 2d 519, ¶ 25.

¶ 41. ECI has proffered no other cause of action at statehood as an essential counterpart to the causes of action here. Similarly, the State maintains that there were no other causes of action at statehood that are essential counterparts to the regulatory violations at issue here. Finally, in our own research we have found no causes of action at statehood sufficiently analogous to conclude that the State's regulatory claims existed, were known, or were recognized at common law in 1848.⁹

¶ 42. Thus, where such a vital aspect of a common law nuisance cause of action, i.e., harm, is not part of a contemporary cause of action, it is our determination that the two are not sufficiently analogous to pass the first prong of the Village Food test. Rather, the causes of action here are part of a "detailed scheme [of] regulation" of the sort the Village Food concurrence/dissent discerned in the Unfair Sales Act. Vill. Food, 254 Wis. 2d 478, ¶ 45 (Wilcox, J., concurring and dissenting). Because the causes of action fail the first prong of the Village Food test, they fail the second prong of the test as well. If they did not exist in 1848, they could not have been regarded as actions at law in 1848.

IV CONCLUSION

¶ 43. In sum, applying the Village Food test, we determine that the claims asserted in the State's complaint do not- give rise to a constitutional right to a jury trial. Common law nuisance causes of action are not sufficiently analogous to be considered "essential counterparts" to the modern day regulatory claims asserted here. Therefore, ECI fails the first prong of the Village Food test because the claims asserted did not exist, were not known, and were not recognized at common law at the time the state's constitution was adopted.

¶ 44. Our determination, however, does not preclude the constitutional right to a jury trial in all environmental regulatory cases. Such a right exists if the asserted claim has an essential counterpart that existed at common law in 1848 and was recognized as an action at law in 1848. Vill. Food, 254 Wis. 2d 478, ¶ 16.

¶ 45. We also note that ECI raised two additional issues on appeal. It alleged insufficiency of the evidence and an erroneous exercise of discretion in assessing statutory forfeitures. In its certification the court of appeals stated, "[w]e are satisfied that these arguments can be addressed under existing law." We agree. Accordingly, we remand the case to the court of appeals for consideration of ECI's arguments regarding sufficiency of the evidence and erroneous exercise of discretion in assessing statutory forfeitures.

By the Court. — The judgment and order of the circuit court are affirmed and the cause is remanded to the court of appeals.

1 All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.

2 The court of appeals certified the case to this court with the following question. "Under the test set forth in Village Food & Liquor Mart v. H & S Petroleum, Inc., 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177, does the constitutional right to a jury trial attach in an action for violations of waste disposal regulations where common-law nuisance theory provides the foundation for modern environmental law, but forfeiture actions for improper treatment of wastewater and hazardous waste did not exist in 1848?"

3 See Wis. Admin. Code § NR 205.03(41) (May, 2001).

4 In Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993), the Texas Supreme Court determined that the state's constitution provided the right to a jury trial for only those types of cases tried to a jury at the time of its adoption in 1876. The court determined that in 1876 there were no regulatory schemes comparable to those constituted by the state's environmental statutes and regulations. Thus, it concluded that the state's assessments of penalties for violations of the modern environmental regulations were not analogous to any type of action tried in 1876, and that those assessments did not give rise to a constitutional right to a jury trial. Id. at 451.

The Pennsylvania Commonwealth Court examined whether the defendants had a constitutional right to a jury trial for an environmental enforcement action in Commonwealth, Dep't of Envtl. Res. v. Wheeling-Pittsburgh Steel Corp., 348 A.2d 765 (Pa. Commw. Ct. 1975). The court examined Article 1, Section 6 of the Pennsylvania Constitution which states: "Trial by jury shall be as heretofore, and the right thereof remain inviolate." The court commented that this language exists exclusively for the purpose of preserving jury trials as provided by common law. Ultimately the court concluded that "the constitutional right to a jury trial does not extend to respondent in these proceedings, which are wholly a creature of recent statutoxy law." Id. at 768.

Likewise, the Connecticut Supreme Court examined its state constitutional provision when addressing the issue of whether there was a constitutional right to a jury trial for the enforcement of environmental regulations in Comm'r of Envtl. Prot. v. Connecticut Bldg. Wrecking Co., Inc., 629 A.2d 1116 (Conn. 1993). The Connecticut Constitution "guarantees a jury trial in all cases for which 'there was a right to a trial by jury at the time of the adoption of that provision,' which was 1818." Id. at 1121 (quoting Conn. Const. Art. I., Sec. 19 (2007)) (brackets omitted). The petitioner did not claim that environmental enforcement actions existed at common law in 1818, but rather that such actions were substantially similar to actions in debt, which existed at common law in 1818 and could be tried to a jury. The Connecticut court rejected the argument and concluded that, consistent with Connecticut's common law history, there was no constitutional right to a jury trial. Id. at 1122. See also Lloyd A. Fry Roofing Co. v. Pollution Control Bd., 314 N.E.2d 350, 357-58 (Ill. App. Ct. 1974) (holding that defendant "cannot argue" that right to trial by jury had been abridged in the context of administrative proceedings for violations of state environmental protection statute which were unknown at common law.)

5 The concurrence and dissent differed as to whether the defendant had a constitutional right to a jury of six or a jury of twelve. Dane County v. McGrew, 2005 WI 130, ¶ 70 n.1, 285 Wis. 2d 519, 699 N.W.2d 890 (Bradley, J., concurring).

6 ECI bases its claims on both public and private nuisance. Private nuisance has historically been defined as an "interference with the use and enjoyment of land." W. Page Keeton, Prosser and Keeton on the Law of Torts, § 87 at 619 (5th ed. 1984). It includes, for example, erecting buildings so near to a person's house that it obstructs the light, keeping noisy animals so near another's house "that the stench of them incommodes him and makes the air unwholesome." 3 William Blackstone, Commentaries on the Laws of England, ch. 13 at 217-18 (1765-69). While these could be broadly understood as "environmental," private nuisances involve injuries to private property. In contrast, public nuisance involves more generalized harms. See Attorney-Gen. v. The Sheffield Gas Consumers' Co., 43 Eng. Rep. 119, 125 (1853); George V. Yool, An Essay on Waste, Nuisance, and Trespass, 85 (1863).

Here, there are no allegations of harms to private property. Therefore the appropriate focus of our analysis is on whether the claims are analogous to public nuisance.

7 The concurrence/dissent states that the proper course is to "determine whether the claim alleges some harm that ... is direct and immediate, and not merely speculative or remote." Concurrence/dissent, ¶ 114. The appropriate question, however, is not whether the complaint happens to allege some harm. Rather, the appropriate question is whether the cause of action is contingent upon allegations of harm. Whether a defendant has a right to a jury trial should not depend upon whether the plaintiff alleges harms that are not necessary for the cause of action to lie.

8 The concurrence/dissent cites to a number of cases to support its contention that some of the State's claims are analogous to common law public nuisance actions. Each of the cases misses the mark. The salient feature of the cases is that an allegation of harm is necessary for a cause of action to lie. People v. Corp. of Albany, 11 Wend. 539 (N.Y. 1834) involved pollution causing a basin in the Hudson River "to be foul, filled and choked up. . . whereby the citizens were not only deprived of the benefit and advantage of using the water ... but the mud .. . became offensive and nauseous, corrupting the water, and causing noisome and unwholesome smells, infecting the air to the damage and common nuisance of the citizens." Id.; concurrence/dissent, ¶¶ 116-117. Luning v. State, 2 Pin. 215 (Wis. 1849), involved causing a water overflow that "created unpleasant and unwholesome vapors and sickness to the inhabitants ...." Id. at 218; concurrence/dissent, ¶ 119. Thus, in both cases people were actually deprived of an unpolluted environment and forced to experience infected air or water.

Similarly, in State v. Buckman, 8 N.H. 203 (1836), the defendants threw an animal carcass into a well, infecting a family's water with "noisome particles and effluvia" and causing the family to partake of "poisonous and unwholesome water." Id. at 205; concurrence/dissent, ¶ 127. The salient allegation in Buckman is not that the animal carcass was "inappropriately handled and disposed of at an inappropriate site," as the dissent posits. Rather, it is that the inappropriate handling and disposal of the animal carcass caused harm. Here, harm is not necessary for any of the causes of action to lie.

Finally, Kilvington v. The City of Superior, 83 Wis. 222, 225-26, 53 N.W 487 (1892), discusses the authority of the government to exercise its power "by ordinance, resolution, law, or vote" to "prevent or abate nuisances" by removing "garbage, manure, or dead animals" from the village and contracting for their cremation. The existence of such a power, however, does not render ordinances analogous to common law, nuisance. Further, the concurrence/dissent does not provide an argument that violations of such ordinances were subject to jury trial in 1848. See concurrence/dissent, ¶ 108 n.23.

9 The concurrence/dissent's discussion of Tull v. United States, 481 U.S. 412 (1987), is inapt. Concurrence/dissent, ¶ 114 n.28. The Court explicitly rejected the idea that the appropriate way to determine whether the Seventh Amendment provides for the right to a jury trial was to find a close analogue to the modern cause of action at issue:

[W]e need not decide the question. As Pernell v. Southall Realty, 416 U.S. [363], at 375 [(1974)], cautioned, the fact that the subject matter of a modern statutory action and an 18th-century English action are close equivalents "is irrelevant for Seventh Amendment purposes," because "that Amendment requires trial by jury in actions unheard of at common law."

ic?. at 420. Rather, the approach of the federal courts in interpreting the federal Constitution places emphasis on the character of the relief sought. "[C]haracterizing the relief sought is 'more important than finding a precisely analogous common-law cause of action in determining whether the Seventh Amendment guarantees a jury trial." Id. at 421 (quoting Curtis v. Loether, 415 U.S. 189, 196. (1974).

Our approach in interpreting this state's constitution is different, as we have made clear in McGrew and in Village Food. We determine whether (1) the cause of action existed, was known, or was recognized at common law in 1848 and (2) whether the cause of action was regarded as at law in 1848. McGrew, 285 Wis. 2d 519, ¶ 18; Vill. Food, 254 Wis. 2d 478, ¶ 16.

We are not bound by the federal courts' interpretation of the federal Constitution in construing our own constitution. Additionally, we note that the Seventh Amendment is one of the few amendments that does not apply to the states through the Fourteenth Amendment. Walker v. Sauvinet, 92 U.S. 90, 92-93 (1875).