Petition — Carpenter v. Commissioner of Public Works

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‘ Office - Supreme Court, U.o

2 oa! FILED

gee 3 196°

WEXANDER L. STEVAS

He

Case No. CLERK

Supreme Court of the United States

October Term - 1983

THE CLASS OF OWNERS AND LESSORS OF MULTIPLE

FAMILY RESIDENTIAL BUILDINGS CONSTRUCTED IN

THE CITY OF RACINE DURING OR AFTER 1963

WHICH CONTAIN FIVE OR MORE DWELLING UNITS

PER BUILDING WHERE GARBAGE (REFUSE AND SOLID

WASTE) COLLECTION AND REMOVAL INVOLUNTARILY

NEVER EXISTED OR HAS BEEN’ INVOLUNTARILY

DISCONTINUED,

HENRY CARPENTER,

Representative Member,

Plaintiffs-Respondents

Vv.

COMMISSIONER OF PUBLIC

WORKS OF THE CITY OF

RACINE, WISCONSIN,

Defendant-Appellant.

On Appeal from the Appellate Court of

Wisconsin (District II); on petition for

review to the Supreme Court of Wisconsin.

Petition for Certiorari

John J. Wargo

Counsel of Record

Ermert & Wargo

1712 Milwaukee Ave.

Racine, WI 53404

(414) 633-5706

or

(414) 634-3104

Matthew H. Quinn

William R. Binetti

a

a

I.

II.

QUESTIONS PRESENTED FOR REVIEW

CAN A SECTION 893.80 WISCONSIN

STATUTES NOTICE BE SUFFICIENT IF IT

PRESENTS A CLASS CLAIM WITHOUT

SEPARATELY IDENTIFYING EACH MEMBER

OF THE CLASS AND SHOWING THAT THE

MULTIPLE CLAIM IS BEING MADE BY

THEIR AUTHORITY?

DOES DENIAL OF GARBAGE COLLECTION TO

MEMBERS OF SAME CLASS CONSTITUTE AN

UNCONSTITUTIONAL DENIAL OF EQUAL

PROTECTION UNDER THE LAW?

TABLE OF CONTENTS

Questions for Review

Table of Authorities

Official and Unofficial

Reports

Statement of Grounds

for Invoking Jurisdiction of

the U.S. Supreme Court

Constitutional Provisions,

Statutes and Citations

Statement of Case

. Stage in Proceedings where

Federal Questions raised -

Manner of raising - Way

Passed Upon by Court

Argument for Allowance of Writ

of Certiorari

Appendix

10

15

18

31

:

TABLE OF AUTHORITIES

I. Cases Cited:

l. Goldstein v. City of

. Chicago,

504 F. 2d 989, (CA, 1974).

2. Hicks v. Milwaukee County,

71 Wis. 2d 401, 238 N.W. 2d

509 (1976).

3. Mercury Records v. Economic

Consultants, 91 Wis. 2d 482,

283 N.W. 2d 613 (1979).

4. Shorehaven, a Limited

Partnership, v. Commissioner

of Public Works of the City

of Racine, Case No. 74-531-CI.

Pas

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OFFICIAL AND UNOFFICIAL REPORTS

Carpenter v. Racine Commissioner of Public

Works, 115 Wis. 2d 2ll.

STATEMENT OF GROUNDS FOR INVOKING

“JURISDICTION OF THE U.S. SUPREME COURT

The judgment sought to be reviewed is

the Denial of Petition for review entered by

the Supreme Court of Wisconsin on November

8, 1983.

The statutory. provision believed to

confer jurisdiction to review is 28 U.S.C.A

Section 1257 (3).

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CONSTITUTIONAL PROVISIONS AND STATUTES

VERBATIM WITH APPROPRIATE CITATIONS

Section 895.45, Wisconsin Statutes

(1977), provides:

(1) No civil action or civil proceeding

wae be brought against any state officer,

employee or agent for or on account of any

act growing out of or committed in the

course of the discharge of such officer's,

employee's or agent's duties, unless within

90 days of the event causing the injury,

damage or death giving rise to the civil

action or civil proceeding, the claimant in

the action or proceeding serves upon the

attorney general written notice of a claim

Stating the time, date, location and the

circumstances of the event giving rise to

- the claim for the injury, damage or death

and the names of persons involved, including

the name of the state officer, employee or

agent involved.

(2) In this section, “claimant” means

the person or entity sustaining the damage

or injury or his agent, attorney or personal

representative.

(3) The notice under sub. (1) shall be

sworn to by the claimant and shall be served

upon the attorney general at his office in

the capitol by certified mail. Notice shall

be considered to be given upon mailing for

the purpose of computing the time of giving

notice.

(4) The amount recoverable by any per-

son or entity for any damages, injuries or

death in any civil action or civil pro-

ceeding against a state officer, employee or

agent shall not exceed $100,000. No puni-

tive damages may be allowed or recoverable

in any such action.

Section 895.43, Wisconsin Statutes has

been renumbered as section 893.80,

Wisconsin Statutes, which reads in

pertinent part:

s=

Oi:

(1) No action may be brought or main-

tained against any volunteer fire company

organized under ch. 213, political cor-

poration, governmental subdivision or agency

thereof nor against any officer, official,

agent or employee of the corporation, sub-

division or agency for acts done in their

official capacity or in the course of their

agency or employment upon a claim or cause

of action unless:

(a) Within 120 days after the happening

of the event giving rise to the claim, writ-

ten notice of the circumstances of the claim

signed by the party, agent or attorney is

served on the volunteer fire company, poli-

tical corporation, governmental subdivision

or agency and on the officer, official,

agent or employee under s. 801.11. Failure

to give the requisite notice shall not bar

action on the claim if the fire company,

corporation, subdivision or agency had

actual notice of the claim and the claimant

shows to the satisfaction of the court that

the delay or failure to give the requisite

notice has not been prejudical to the defen-

dant fire company, corporation, subdivision

or agency or to the defendant officer, offi-

cial, agent or employee; and

(b) A claim containing the address of

the claimant and an itemized statement of

the relief sought is presented to the

appropriate clerk or person who performs the

duties of a clerk or secretary for the

defendant fire company, corporation, sub-

division or agency and the claim is

disallowed. Failure of the appropriate body

to disallow within 120 days after presen-

tation is a disallowance. Notice of

disallowance shall be served on the claimant

by registered or certified mail and the

‘ receipt therefor, signed by the claimant, or

the returned registered letter, shall be

proof of service. No action on a claim

against any defendant fire company, cor-

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a

poration, subdivision or agency nor against

any defendant officer, official, agent or

employee, may be brought after 6 months from

the date of service of the notice, and the

notice shall contain a statement to that

effect.

United States Constitution, Article

XIV, Section l,:

All persons born or naturalized in the

United States, and subject to the jurisdic-

tion thereof, are citizens of the United

States and of the State wherein they reside.

No State shall make or enforce any law which

shall abridge the privileges or immunities

of citizens of the United States; nor shall

any State deprive any person of life,

liberty, or property, without due process of

' laws; nor deny to any person within its

jurisdiction the equal protection of the

laws.

STATEMENT OF CASE

On December 19, 1979 a Notice of Claim

against the City of Racine was served.

(Appendix p. A38) The notice informed the

City that Henry Carpenter and other members

of the class of parties having five unit or

larger apartment buildings constructed on or

after 1963 were making claim against the

City.

The City of Racine subsequently denied

the payment of the claim and action was com-

menced on August 22, 1980. The claim

alleged the City's Commissioner of Public

Works had violated the equal protection

Clause of the United States Constitution and

comparable State constitutional provisions

by arbitrarily denying garbage pick-up to

some multi-family dwellings and picking up

the garbage at other multi-family dwellings.

Damages were claimed at $1,179,657.00.

The City moved the Court to decertify

the class. On August 12, 1982 a hearing was

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a

held on the City's motion to decertify the

class. No testimony was offered at the

hearing by the City. Judge Dennis Flynn

determined that there were numerous members

in the class, that they shared a common

interest, that the plaintif€, Henry

Carpenter, was a representative member and

could protect the interests of the class,

and it would be impractical to bring all

members before the Court. The Court speci-

fically stated, “In other words there were

2,065 units of residential buildings which

contained five or more dwelling units which

were not provided with solid waste

collection." (Appendix op. A25)

Shorehaven v. The Commissioner of Public

Works for the City of Racine, Case No.

74-531. (Appendix p. A36)

The trial commenced on August 18, 1982.

The evidence at trial established some 5,351

total units (in five unit or more apartment

buildings). The City admitted, from time to

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time, that somewhere between 873 to 3,543

units were getting pick-up service and that

in 1972 some 1,808 units were denied service

and that in 1976 and at the time of trial

some 2,065 units were denied service. The

Commissioner arbitrarily denied service to

some buildings simply because the buildings

were constructed after 1962.

The City argued they did not have notice

of the claim. Judge Thomas Corbett's deci-

sion in the Shorehaven case dated October

29, 1978 (Appendix p. A36) was used to

establish the knowledge of all the details

concerning the same issue and that the Court

had declared it a violation of constitu-

tional rights. The decision was all that

was available because almost all of the file

had been lost. The decision contained

reference to detailed numbers known to and

admitted by the City. The Court admitted

the decision. The trial Court heard argu-

ments on relevancy of the decision and

allowed it to be used.

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During the trial, evidence showed that

garbage pick-up became a “nightmare” (the

Commissioner's own word) to administer.

This was shown to be a direct result of the

Commissioner's arbitrary decision-making

from 1963 through January 27, 1972.

But based upon great savings in manpower

and equipment due to the combining of trash

and rubbish collection in 1971, the

Commissioner suggested expansion of services

to container service and recommended an end

to arbitrary and inconsistent collection

practices. But before the City acted on the

Commissioner's recommendations Shorehaven

Apartments served a Writ of Mandamus on the

Commissioner. At this point in time the

Commissioner set off on a course of conduct

to evade the ramifications of this lawsuit.

In 1978 the City amends its ordinance

and reverses its direction to now terminate

all pick-up to multi-family units. In

October, 1978 Judge Corbett's decision

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orders an end to the unequal treatment but

Shorehaven takes no action because with the

Ordinance now changed they have no basis to

claim unequal treatment.

At this point all would have been calm

had the Commissioner simply complied with

the City Ordinance. He did not. He con-

tinued the unequal treatment.

Carpenter filed a demand for pick-up.

The class act. °n was commenced. Several

legal battles were fought and not until

after March of 1982 did garbage pick-up

become uniform in the City of Racine for

multi-family units of five or more, thus

finally ending twenty years of continuous

illegal discrimination.

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STAGE IN PROCEEDINGS WHERE FEDERAL

QUESTIONS RAISED - MANNER OF RAISING -

WAY PASSED UPON BY COURT

I. CAN A SECTION 893.80 WISCONSIN

STATUTES NOTICE BE SUFFICIENT IPF

IT PRESENTS A CLASS CLAIM WITHOUT

SEPARATELY IDENTIFYING EACH MEMBER

OF THE CLASS AND SHOWING THAT THE

MULTIPLE CLAIM IS BEING MADE BY

THEIR AUTHORITY?

Raised - Motion for Decertification

of Class

Denied - Judge Flynn Order,

(Appendix p. A25)

Appealed - Appealed to Appellate Court

of Wisconsin on April 15,

1983 by defendant - appellant

Court of Appeals found,

(Appendix p. Al)

-That Section 893.80 Stats. re-

quires notice of claim within

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120 days.

-That Hicks v. Milwaukee County,

71 Wis. 2d 401, 238 N.W. 2d 509

(1976), applied this Notice re-

quirement to Class Action Suits.

-That applying Hicks rationale to

Carpenter (case at bar),

Carpenter's Notice failed to

identify his fellow claimants,

nor show he was authorized to: act

on their behalf and thus rules

it insufficient.

-Court disregarded factual dis-

Similarities between Hicks and

Carpenter cases.

-Court disregarded Section 893.80

Stats. actual notice exception to

120 day notice.

-Court found Section 893.80 Stats.

Notice sufficient as to individual

claim.

Wisconsin Supreme Court denied petition

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oo

for review on November 8, 1983.

(Appendix p. A35 )

II. DOES DENIAL OF GARBAGE COLLECTION

TO MEMBERS OF SAME CLASS CONSTITUTE

AN UNCONSTITUTIONAL DENIAL OF EQUAL

PROTECTION UNDER THE LAWS?

Raised - Summons and Complaint

Denied - Answer

Judgment - Trial court affirmed

6 unconstitutional denial

of equal protection.

Appeal - Wisconsin Appellate Court

reverses trial court.

Petition for Review -

Wisconsin Supreme Court

refuses to hear Petition

for review.

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ARGUMENTS FOR ALLOWANCE OF WRI OF

CERTIORARI NOTICE-SECTION 893.80

WISCONSIN STATUTES

I. 1. The Supreme Court of the United

States should clarify Hicks v.

Milwaukee

County and not apply its narrow test to

Carpenter to avoid a denial of equal protec-

tion of the laws. In Hicks, the Supreme

Court clearly stated that it was an

"exception". Hicks stated that a class

action will not normally be subject to a

successful motion to dismiss simply because

all class members have not been identified

at the time of the filing of the action.

Obviously, this was based on the fact that a

Significant underlying reason’ for class

actions is to permit the filing of the

action after the initial group of class mem-

bers have been identified and then to learn

the identity of the remaining class members

through mandatory discovery procedures which

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may only be fully utilized in Wisconsin

after legal action has been commenced,

Nevertheless, the Hicks court dismissed

the class action. Tn so doing, the Court

failed to recognize and address significant

distinctions between Hicks and Carpenter;

i.e., Hicks sought a money judgment only -

Carpenter sought mandamus’ relief -_ the

controlling statute in Hicks was not the

same as the statute in Carpenter - in Hicks

the county had no knowledge of the potential

Claim before the action was filed - in

Carpenter the city had actual knowledge

before the action was filed through the

Shorehaven decision and it even knew the

actual number of dwelling units involved.

To hold otherwise would pose a “Catch

22" problem which would make a class action

against a municipality a practical impossi-

bility.

Hicks, then, was decided as an exception

to the basic rule in class actions in a very

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particular fact situation and should be

narrowly applied by the Supreme Court.

Use of the term “every person" in Hicks

does not mean that the name of every person

in a class must be supplied to the municipa-

lity before a valid class action can be

maintained. Rather, it means that every

person who actually, directly brings suit

against a municipality must be identified,

Here, since plaintiff, Henry Carpenter, is

actually bringing the suit and is personally

identified and is said to bring the action

on behalf of other class members, the “every

person" requirement is met.

Tt should be noted that Section 895.45,

Wisconsin Statutes, supra p. 5, does require

the “names of persons’ involved"; whereas

Section 893.80, supra p. 5, does not. This

Notice in Carpenter was filed pursuant to

Section 893.80.

In fact, to interpret Section 893.80,

Stats., so as to require identifying all

*

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Pr.

class members before an action can he filed

against a municipality is in itself an

unconstitutional discrimination since class

action® could then be filed against anyone

else without such advance notice being

required but could only be filed against a

Municipality after all class members were

specifically identified. No rational basis

would seem to exist for such a legal

distinction.

The class action is a major vehicle in

American jurisprudence for protecting the

right of individual small litigants who have

substantial collective rights. Thus, a city

is a valid defendant in a class action as it

is a large corporate entity made up of tens

of thousands of individuals and families.

Mercury Records was decided five years

after Hicks and again sets forth the con-

tinuing basic proposition of the earlier

cases, to which Hicks was admitted to be an

exception, indicating that public policy

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favors the class action. Thus, procedural

technicalities which mitigate against the

bringing of class actions are to be narrowly

construed.

2. The Court of Appeals’ completely

overlooked the remaining language in Section

893.80, Stats., which states that where the

municipality was on actual notice and was

not prejudiced, then the failure to fully

comply with the technicalities of the notice

Statute do not bar court action.

A. The case of Shorehaven v. _

Commissioner of Public Works (Appendix pp.

A36) was filed in 1974 and decided by the

Hon. Thomas P. Corbett on October 29, 1979.

Shorehaven clearly indicated that the same

practices of the same Commissioner of Public

Works, Fred Larson, constituted an unconsti-

tutional denial of equal protection of the

law. Thus, probably from the filing date of

Shorehaven and certainly from its decision

date, the Commissioner of Public Works and

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oO ws

the City of Racine were clearly on actual

notice that their practices were in viola-

tion of the law. Further, the Shorehaven

decision quoted information contained in

reports from the Commissioner of Public

Works to the Common Council of the City of

Racine which proved that the City actually

knew the exact number of units in the Class.

B. In his 1972 report to _ the

Common Council the Public Works Commissioner

admitted that his decisions in determining

whose refuse would be picked up and whose

would not were “arbitrary". Thus, the

Commissioner of Public Works personally and

the City through the knowledge of its

Commissioner of Public Works were definitely

On actual notice and admitted that their

practices in this regard were arbitrary.

C. The City moved in Circuit Court

to decertify the class in Carpenter. The

Hon. Dennis J. Flynn found that the City

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wknew or should have known the size of the

Class. Thus, Judge Flynn determined that

the City was on actual notice. (Appendix

pp. A25 ) i

D. On the date the City received

notice from the class representative it knew

the extent of the Class claim because its

own records indicated the number of separate

buildings containing five or more units

whose refuse was not being picked up.

E. There was no prejudice to the

City in Carpenter. The City vigorously

defended against the action at all stages

thereof and over a substantial period of

time. They made several motions in court,

defended against motions, etc. They were

clearly aware, as specified in (A) above of

the size of the class and potential monetary

exposure in this case and took all the

necessary legal defense steps which coul:

have been taken. In short, had the City

known the exact name of every class member

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‘or

at the time of the filing of the notice in

this case, they would have proceeded no dif-

ferently.

EQUAL PROTECTION

II. 1. The Wisconsin Appellate Court

=

misread the facts in Carpenter to involve

owners of FIVE UNITS OR MORE buildings vs.

owners of FOUR UNITS OR LESS buildings;

instead of owners of FIVE UNITS OR MORE vs.

other owners of FIVE UNITS OR MORE.

There was no rational basis here such as

would support even the lesser constitutional

standard held to apply to the City by the

Appellate Court. Rather, a simple "time

line” was drawn between the end of 1962 and

the beginning of 1963. This “time line” had

absolutely nothing to do with refuse pick-

up.

The day on which apartment buildings are

completed has absolutely nothing at ail to

do with the who, what, where, how,~ when or

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why of garbage collection. In fact, based

on the local municipal ordinances, garbage

must be transported to the curbside before

it will be collected. Thus, garbage collec-

tion occurs totally outside of the buildings

themselves and the construction date of the

buildings is totally unrelated.

Clearly, the date on which an apartment

building is constructed is not “rationally

related to legitimate public purpose” in any

way which involves refuse collection.

By incorrectly focusing on distinctions

between buildings containing five or more or

four or less units which was not at all the

basis of the discrimination in Carpenter,

the Appellate Court's attention was diverted

from the real issue in Carpenter. That

issue was that the City, by its own written

admissions, arbitrarily drew a mere time

line on a calendar and improperly and ille-

gally discriminated between owners of

buildings all having five or more units

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depending upon simply the date when the

building was completed. This time line,

then, which simply separated the end of 1962

from the beginning of 1963 was in no way

rationally related to refuse pick-up and

could not constitute a rational constitu-

tional basis for such an important discrimi-

nation regarding the granting or denial of a

free city service between persons who all

paid the same taxes.

Thus, the Appellate Court erred in

finding a cational basis for the City ordi-

nances.

2. The Court of Appeals ignored

the admission by the City of its arbitrary

decisions in 1972 and 1976.

A. Ina letter and report from the

Commissioner of Public Works to the Common

Council it is stated in both 1972 and 1976

that the Commissioner's decisions on garbage

collection were “arbitrary” and “lacked

uniformity”.

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B. The Court of Appeals ignored

the admissions by the City in its 1972 and

1976 reports in which the extent of denial

of garbage collection to buildings con-

taining five or more units was specifically

set forth.

Cc. The Appellate Court did not

take into consideration that the Shorehaven

case was decided by Judge Thomas Corbett and

gave actual notice to the Commissioner of

Public Works (the Defendant) and the City

that their garbage collection practices were

unconstitutionally discriminatory.

D. The Appellate Court opinion

states that it was the City's intent to

eventually provide equal enforcement of its

refuse pick-up rules. The facts, however,

clearly show otherwise. This discrimination

began in 1963 and was documented in detail

in both the 1972 and 1976 reports of the

Commissioner of Public Works to the Common

Council. In fact, this blatant discrimina-

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tion did not end, suspiciously, until just

before the Carpenter case went to trial. To

believe that a period of almost two decades

was in any way a reasonable period during

which to effect equal enforcement is

patently ludicrous. Prior to the changing

in 1978 the City ordinance directed all five

Or more unit dwellings were to receive pick-

up. After the 1978 amendment the ordinance

directed all pick-up to be discontinued.

Unequal collection continued from 1963

through 1982. The Commissioner did not

follow the ordinance before or after its

Amendment in 1978 until shortly before

trial.

CONCLUSION

The plaintiffs-respondents feel that a

‘ review by the Supreme Court of the United

States is necessary to correct the obvious

error in that the unequal treatment occurred

within one class, contrary to the Appellate

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Court's erroneous thinking that the unequal

treatment was between two different classes.

Also, the Supreme Court of the United

States needs to reverse the requirement

found in Hicks and Carpenter requiring that

each and @Very class member in a class

action suit give notice of their individual

Claim prior to commencement of suit and not

apply this fatal requirement to future class

action cases.

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APPENDIX

Opinions, Order, Findings of

Fact and Conclusions of Law

Decision of Court of Appeals

“*Judgment of Circuit Court

Decision on Motions after

Verdict

Summary of Decision on Motion for

Decertification Of Class

Order of Circuit Court

Motion and Affidavit for

Decertification

Judgment Sought To Be Reviewed

Judgment of Supreme Court of

Wisconsin Denying Petition for

Review entered November 8, 1983

Other Appended Materials

Summary of Circuit Court

Decision, Shorehaven v.

Commissioner

Notice of Claim Against City

of Racine

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PAGE

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A25

A27

A30

A35

A36

A38

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COURT OF APPEALS

DECISION DATED AND

RELEASED SEP 26 1983

No. 83-100

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

THE CLASS OF OWNERS AND

LESSORS OF MULTIPLE FAMILY

RESIDENTIAL BUILDINGS

CONSTRUCTED IN THE CITY OF

RACINE DURING OR AFTER

1963 WHICH CONTAIN FIVE OR ~

MORE DWELLING UNITS PER

BUILDING WHERE GARBAGE

(REFUSE AND SOLID WASTE)

COLLECTION AND REMOVAL

INVOLUNTARILY NEVER EXISTED

OR HAS BEEN INVOLUNTARILY

DISCONTINUED:

HENRY CARPENTER,

Representative Member,

Plaintiffs-Respondents,

Ve

COMMISSIONER OF PUBLIC

WORKS OF THE CITY OF

RACINE, WISCONSIN

Defendant-Appellant

APPEAL from a judgment of the cir-

cuit court for Racine County: EMMANUEL J.

Al

VUVUNAS, Judge. Reversed and remanded.

Before Scott, C.J., Voss, P.J., and

Robert W. Hansen, Reserve Judge.

SCOTT, C.J. This is an appeal

from a judgment resulting from a class

action suit finding that the Commissioner of

Public Works for the City of Racine discri-

minated against various owners and lessors

of multiple family residential buildings in

the collection of solid waste. The issues

On appeal in this case are many. As to the

class, however, compliance with the notice

of claim requirement of sec. 893.80, Stats.,

is dispositive. Because only Henry

Carpenter satisfied the statutory notice

requirements, we must reverse the order

denying the defendant's motion to decertify

the class. As to Carpenter's suit, because

we conclude there was no denial of his right

of equal protection, we also reverse the

trial court's denial of the defendant's

motion for a directed verdict.

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In 1963, due to q lack of

appropriations from the city council, Fred

Larson, the Racine Commissioner of Public

Works, decided not to provide solid waste

collection services to buildings constructed

during or after 1963 which contained five or

more dwelling units per building. In 1976,

the City of Racine, pursuant to Larson's

direction, stopped solid waste collection at

Carpenter's apartment building which con-

tained eight dwelling units. Carpenter pro-

curred the services of a commercial waste

collection service beginning in March of

1976. In early 1978, the Racine common

council passed an ordinance which provided

that no building containing five or more

dwelling units would receive solid waste

collection services.

On December 14, 1979, Carpenter

presented a notice of claim to the city of

Racine in the care of Anthony J. Schleffer,

City Clerk. The notice of claim referred to

A3

Carpenter personally as a claimant and as a

representative member of a class of parties

having apartment buildings of five units or

more. In August 1980, Carpenter filed suit

personally and as representative member of

the class. The defendant's motion to decer-

tify the class was denied by the trial

court.

A jury trial was held on August 8,

1982. The defendant moved for a directed

verdict at the end of plaintiffs' case on

the grounds that there was no denial of

equal protection. The trial court denied

this motion. A special verdict was returned

awarding the class $764,612 in damages.

The Commissioner of Public Works

contends on appeal that certification of the

class was improper because the class mem-

bers, other than Carpenter, failed to file

the requisite notice of claims under sec.

895.45, Stats. (1977).1 He also argues

that the trial court should have granted the

defendant's motion for a directed verdict

A4

because there was no denial of Carpenter's

constitutional right to equal protection as

a matter of law. We agree.

Section 895.43, Stats. (1977)2

requires that no action be brought or main-

tained against a governmental body or agency

unless the claimant has filed a notice of

Claim as a step towards the recovery of a

monetary claim. Rabe v. Outagamie County,

72 Wis.2d 492, 497, 241 N.W.2d 428, 431

(1976); Kaiser v. City of Mauston, 99 Wis.2d

345, 356, 299 N.W.2d 259, 266 (Ct.App.

1980). In Hicks v. Milwaukee County, 71

Wis.2d 401, 238 N.W.2d 509 (1976), the

Supreme court applied this notice require-

ment to class action suits against a govern-

mental body. In Hicks, a Huber prisoner

sued Milwaukee County on behalf of himself

and all similarly situated prisoners based

upon a theory that the county's practice of

overcharging prisoners resulted in unjust

enrichment. The plaintiff filed a notice of

Claim against the county on behalf of him-

A5

self and all members of the class. In

dismissing the class action, the court held

that “(e]very person making a claim against

a county must state the nature of the claim

and the facts upon which it was founded in

writing.” Id. at 407, 238 N.W.2d at 513.

The court further stated that a document

presenting multiple claims against a county

must, at the minimum, identify the claimants

and show that the claims are being made by

their authority. Id.

Using the guidelines and rationale

set down in Hicks, the plaintiffs' class

action suit must fail. The notice of claim

filed by Carpenter on December 14, 1979 does

not meet the minimum standard for asserting

claims against a governmental entity by a

member of a class. Carpenter's notice of

claim does not identify his fellow

claimants, nor does it show that Carpenter

is authorized to act on their behalf.

The respondent attempts to

AS

distinguish Hicks by pointing out factual

dissimilarities between the cases. We find

no legal significance in these differences.

We conclude it is a logical extension of

Hicks to apply the notice of claim require-

ments to the class action in the present

case.

Although the notice of claim is

inadequate as to the class, it appears to be

sufficient as to Carpenter's action indivi-

dually. We, therefore, must consider the

merits of the case as to Carpenter's claim.

At the close of the plaintiffs'

case, the defendant moved for a directed

verdict on the grounds that, as a matter of

law, the Commissioner's actions regarding

the suspension of garbage collection did not

violate the constitutional right to equal

protection. It is the duty of the trial

court to decide constitutional issues as a

matter of law.2 Just v. Marinette County,

56 Wis.2d 7, 24-25, 201 N.W.2d 761, 771-72

(1972); Weber v. State, 59 Wis.2d 371, 381,

A7

208 N.W.2d 396, 401 (1973). Because we find

there was a rational basis for the

Commissioner's action and no evidence that

Carpenter was the victim of intentional,

systematic or arbitrary discrimination, we

conclude that the trial court erred when it

denied the defendant's motion for a directed

verdict.

In deciding whether Carpenter was

denied equal protection of the laws, we must

determine by what constitutional standard

the actions of the Commissioner of Public

Works should be tested. Initially, we must

consider the case to determine whether

multiple dwelling units are a_ suspect

Classification or garbage collection is a

fundamental right. If a fundamental right

Or suspect classification is involved, the

action will be subjected to a strict scru-

tiny and will survive an equal protection

challenge only if it serves an important

governmental objective that could not be

A8

accomplished through less burdensome means.

O'Connell v. Kniskern, 484 F. Supp. 896, 898

(E.D. Wis. 1980), cert. denied, 454 U.S.

1084 (1981).

Suspect classifications identified

by the Supreme Court are race, national ori-

gin, alienage, indigency or illegitimacy.

San Antonio School District v. Rodriguez,

411 U.S. le 61 (1973) (Stewart, Jeo,

concurring); Yick Wo v.! Hopkins, 118 U.S.

356 (1886). Multiple dwelling units is not

an identified suspect classification. a

fundamental right is a right which is expli-

citly or implicitly guaranteed by the

constitution. San Antonio School District,

411 U.S. at 33 (held education was not a

fundamental right); Dandridge v. Williams,

397 U.S. 471 (1970) (held housing as

welfare benefit was not aé_e fundamental

right). Garbage collection is neither an

explicitly nor an implicitly guaranteed

constitutional right. Goldstein v. City of

A9

Chicago, 504 F.2d 989, 991-92 (7th Cir.

1974).

Since garbage collection is not a

fundamental right and multiple dwelling

ownership is not a suspect classification,

the applicable test is whether the

Commissioner's action in distinguishing bet-

ween owners of buildings with five dwelling

units or more and those buildings with less

than five dwelling units was rationally

related to a legitimate public interest.

Id. at 992. Based upon a similar factual

situation, the Seventh Circuit in Goldstein

found that distinguishing between different

types of multiple dwelling residential

Structures in order to provide efficient

Sanitation for the community was reasonable.

Likewise, we find that the Commissioner's

decision to restrict public garbage collec-

tion to multiple dwellings of less than five

units is reasonable. The action bears a

rational relationship to the city's legiti-

Al0

mate public interest in providing efficient

sanitation to the community as a whole.

Carpenter argues that discrimina-

tion occurred within the class of owners of

housing units with five or more dwelling

units because of unequal enforcement of the

Commissioner's order. While this court

recognizes that there is sufficient evidence

to show such unequal enforcement did occur,

in and of itself, it is insufficient to

classify the Commissioner's acts as

unconstitutional. State ex rel Cities

Service Oil Co. v. Board of Appeals, 21

Wis.2d 516, 544, 124 N.W.2d 809, 823 (1963).

There must be a showing of an intentional,

systematic and arbitrary discrimination.

Village of Menomonee Falls v. Michelson, 104

Wis.2d 137, 145, 311 N.W.2d 658, 662 (Ct.

Appl. 1981). Carpenter made no such showing

in this case. Simply that enforcement

occurs selectively over a period of time

does not constitute a constitutional viola-

All

tion unless there is no intention to follow

it up by general enforcement against others.

Village of Menomonee Falls, at 146, 311

N.W.2d at 663, citing People v. Utica Daw's

Drug Co., 16 App. Div.2d 12, 21, 225

N.Y.S.2d 128, 136, 4 A.L.R.3rd 393, 402

(1962). It was the intent of both the

Commissioner of Public Works and the Common

Council of Racine to have equal enforcement.

Equal enforcement, in fact, occurred by the

spring of 1982.

We hold that because all class mem-

bers except Carpenter failed to properly

file notice of their claims to the

Commissioner of Public Works, the defen-

dant's motion to decertify the class should

have been granted. As to Carpenter, while

notice of claim was filed, there was no

denial of equal protection because there was

a rational basis for the Commissioner's

action, and inadvertent unequal enforcement

is not sufficient to show a denial of equal

Al2

protection.

By the Court.--Judgment' reversed

and remanded.

Not recommended for publication in

the official reports.

Al3

STATE OF WISCONSIN

CIRCUIT COURT

RACINE COUNTY

THE CLASS OF OWNERS AND

LESSORS OF MULTIPLE

FAMILY RESIDENTIAL

BUILDINGS CONSTRUCTED IN

THE CITY OF RACINE

DURING OR AFTER 1963 JUDGMENT

WHICH CONTAIN FIVE OR

MORE DWELLING UNITS PER Case No.

BUILDING WHERE GARBAGE

(REFUSE AND SOLID WASTE) 80-CV-1221

COLLECTION AND REMOVAL

INVOLUNTARILY NEVER

EXISTED OR HAS BEEN IN-

VOLUNTARILY DISCONTINUED,

HENRY CARPENTER, Representative

Member,

Plaintiffs

COMMISSIONER OF PUBLIC

WORKS, City of Racine,

Wisconsin,

Defendant.

The above entitled action having

coming on for trial on August 18 and August

19, 1982, WILLIAM R. BINETTI, JOHN J. WARGO

Al4

and MATTHEW H. QUINN appearing for plain-

tiffs, and DANIEL P. WRIGHT appearing for

the defendant; and the case having been

tried before the Court and a jury; and the

jury having rendered its verdict dated

August 19, 1982, which is on file herein;

and the jury having awarded plaintiffs the

sum of $764,612.00 as damages; and the Court

having entered on Decision of Motions after

Verdict entered December 14, 1982, and an

Order for Judgment on December 15th ,

1982, granting plaintiffs’ motion for

judgment on the verdict in favor of them-

selves and against the defendant,

Commissioner of Public Works, City of

Racine, Wisconsin, together with costs, dis-

bursements and attorney fees,

NOW, THEREFORE, on Motion of

William R. Binetti, one of the attorneys for

plaintiffs;

IT IS ADJUDGED that the plaintiffs

have and recover of the defendant,

AlL5

Commissioner of Public Works of the City of

Racine, Wisconsin, the sum of SEVEN HUNDRED

SIXTY FOUR THOUSAND SIX HUNDRED TWELVE

DOLLARS, ($764,612.00), together with costs,

disbursements and interest in this action.

That said amount shall be placed in a fund

pending allocation to the parties to whom it

is owed as hereinafter provided.

IT IS ADJUDGED that one/third of

said fund shall be paid forthwith to WILLIAM

R. BINETTI, JOHN J. WARGO and MATTHEW H.

QUINN, as attorneys fees in this action.

IT IS ADJUDGED that the plaintiffs'

attorneys shall run notices in the newspa-

pers setting out the class requirements to

inform class members of their right to file

Claims against the balance of the class

action fund. That a date will be set ninety

days from the date of filing of the notices

as a final date for the filing of claims and

will allow recovery to each party claimant

in the amount due them, minus the propor-

Al6

«*

tional amount of attorney fees from said

class action fund.

IT Is ADJUDGED that Court

Commissioner James Drummond is hereby

appointed to act for the Court in setting up

the above-stated procedures and to hear any

disputed claims that may arise. Said Court

Commissioner shall be compensated for his

time in this matter at the rate of $50.00

per hour from the class action fund before

any residual amount is turned over to the

City.

FINALLY, IT IS ADJUDGED that all

the claims be paid in full in the manner

stated above. If the fund exceeds the

amount of claims and fees as above stated,

the balance shall be turned over to the

City. If the amount of the fund does not

meet the levels of claims, each claim shall

be reduced proportionately and each claimant

shall receive a reduced proportional share.

Dated this 15th day of

Al7

December, 1982.

BY THE COURT:

/s/ Claudette Woods

Clerk of Courts

Als

STATE OF WISCONSIN

CIRCUIT COURT BRANCH IV

RACINE COUNTY

THE CLASS OF OWNERS AND

LESSORS OF MULTIPLE FAMILY

RESIDENTIAL BUILDINGS

CONSTRUCTED IN THE CITY

OF RACINE DURING OR AFTER DECISION ON

1963 WHICH CONTAIN FIVE OR MOTIONS AFTER

MORE DWELLING UNITS PER VERDICT

BUILDING WHERE GARBAGE

(REFUSE AND SOLID WASTE) 80-F-1221

COLLECTION AND REMOVAL

INVOLUNTARILY NEVER

EXISTED OR HAS BEEN IN-

VOLUNTARILY DISCONTINUED

HENRY CARPENTER, Represen-

tative member,

Plaintiffs,

COMMISSIONER OF PUBLIC

WORKS OF THE CITY OF

RACINE, WISCONSIN,

Defendant.

The Court, after having heard the

arguments of counsel, having had a chance to

go over the exhibits and the file in this

matter, finds as follows with reference to

Al9

the defendant's motions after verdict:

l. Denies Motion #1 and finds as a

matter of law that there was sufficient cre-

dible evidence in the testimony to sustain

the findings that the defendant's actions

constituted denial of equal protection under

the laws.

2. Denies Motion #2 as to question #2

of the verdict form and finds that there

was, aS a matter of law, evidence sufficient

to sustain the answer of the jury.

3. As to the question of the award,

finds that the award was not excessive and

was not due to perversity, prejudice, or

other error committed during the trial.

4. As to Motion #4 of the defendant,

the Court denies that motion and reaffirms

the ruling that it made during the trial

that the Commissioner was not acting in a

personal capacity and that this defense was

not available to him.

5. The Court having reviewed the

A20

motion #5 of the granting of a new trial,

denies the motion and further states that

the reasons for denying the particular mat-

ters brought up by the defendant in allega-

tions A through G were addressed at the

trial fully, and the Court reaffirms its

previous rulings.

As to allegation H, that the Court com-

mitted error in answering the question of

the jury, the Court only wishes to state

hat both attorneys were contacted, both

were party to a conference call in which the

question of the jury was read to them and an

answer was indicated and agreed to by all

parties. Further, that the Court stated to

both parties that if they wished to come to

the ph Sileereonen and make arguments on the

vecece bbout the answer the Court would be

willing to hear them, but both parties

agreed and stipulated to the answer that

went to the jury.

6. The Court denies Motion #6 and

\

\ A21

finds that Section 893.80 is not applicable,

an action such as this seeking redress for a

violation of constitutional rights in a

class action.

Accordingly, the Court hereby enters

judgment in favor of the plaintiffs against

the defendant, the Commissioner of Public

Works of the City of Racine in accordance

with the verdict of the jury in the amount

of $764,612. The Court further orders that

this amount be placed in a fund pending

allocation to the parties that it is owed.

The Court having considered all the

factors involved in the carrying out of this

lawsuit, the difficulty of this case, the

enormous time expended in preparing and

readying the case, the high degree of skill

and work involved in litigating the matter,

the great deal of success the plaintiff has

enjoyed in this matter, the added respon-

sibility of going forth representing a class

of plaintiffs in this action involving a

A22

denial of equal protection of the laws to a

portion of the public, allocates that one-

third of this fund be paid over to the

attorneys for the plaintiff as proper and

normal attorney fees.

The Court will order that the plain-

tiffs' attorneys send out notices or run

notices in the newspapers setting out the

class requirements to inform potential class

members of their right to file claims

against the balance of the class action

fund.

The Court further orders that Court

Commissioner James Drummond be appointed to

act for the Court in setting up the above-

stated procedures and to hear any disputed

Claims that may arise. The Court will order

a date ninety days from the date of filing

of the notices to be set as a final date for

the filing of claims and will allow recovery

to each party claimant in the amount due

them minus the proportional amount of attor-

A23

ney fees.

The Court also orders that compensation

for the court commissioner be paid at the

rate of $50 per hour and that this compen-

Sation be paid out of the fund before any

residual amount is turned over to the city.

Finally, the Court orders all the claims to

be paid in full in the manner stated above,

and that if the amount of the fund exceeds

the claims, that the rest be turned over to

the city. That if the amount of the fund

does not meet the levels of the claims, that

each claim be reduced proportionately and

each claimant receive a reduced proportional

share.

Dated December 14, 1982.

BY THE COURT:

/s/ E. J. Vuvunas

Hon. Emmanuel J. Vuvunas

Circuit Judge, Br. IV

A24

SUMMARY OF MOTION HEARING IN CARPENTER CASE

(No. 80-CV-1221)

(Before the Honorable Dennis J. Flynn,

August 12, 1982)

"The Court in addressing the motion

that's before the Court to decertify the

class and in terms of addressing the plain-

tiff such that it can bring a cause of

action on behalf of that class ,determines

that the plaintiff has met its burden of

establishing a class."

"In other words, there were 2,065 units

of residential buildings which contain five

or more dwelling units which were not pro-

vided with solid waste collection."

"Because I find that the plaintiff has

established its burden of demonstrating both

that there is a class and that he is a

member of that class and that it would be

impracticable to bring all interested par-

ties before the Court, I'm going to deny the

motion which is made by the defendant today

A25

for decertification of the class itself."

A26

STATE OF WISCONSIN

CIRCUIT COURT

RACINE COUNTY

THE CLASS OF OWNERS AND

LESSORS OF MULTIPLE

FAMILY RESIDENTIAL

BUILDINGS CONSTRUCTED

IN. THE CITY OF RACINE

DURING OR AFTER 1963

WHICH CONTAIN FIVE OR ORDER

MORE DWELLING UNITS

PER BUILDING WHERE Case No. 80-CV-1221

GARBAGE (REFUSE AND

SOLID WASTE) COLLECTION

AND REMOVAL INVOLUNTARILY

NEVER EXISTED OR HAS BEEN

INVOLUNTARILY DISCONTINUED

HENRY CARPENTER, Repre-

sentative member,

Plaintiff

vs.

COMMISSIONER OF PUBLIC

WORKS OF THE CITY OF

RACINE, WISCONSIN

Defendant

On July 26, 1982, the Plaintiffs

appearing by. their attorney John Wargo and

the Defendant appearing by his attorney

A27

Daniel P. Wright and the Court, the

Honorable John C. Ahlgrimm presiding, having

heard arguments relating to the Defendant's

Motion for Decertification of the Class and

of the Class Claim for Money Damages,

IT Is HEREBY ORDERED THAT

the Plaintiffs will provide the

Defendant with a notice of individual class

members not later than August 2, 1982; the

Defendant may investigate the eligibility

and qualifications of such alleged class

members and at 1:00 p.m. on August 12, 1982,

a pretrial hearing will be held to consider

the class and to consider trial procedure.

If the Defendant needs more time to investi-

gate the alleged class members identified,

then the trial date will be continued. If

the Defendant's investigation discloses

questions relating to the number of class

members, then the Defendant may renew its

Motion to Decertify the Class.

The Defendant's Motion to Decertify the

A28

Class Claim for Money Damages is denied. If

either party believes that the rulings and

orders made in this matter would require the

case to be tried by the undersigned judge,

then a request to transfer the matter should

be made to Judge Flynn.

Dated this 29th day of July , 1982.

BY THE COURT

/s/ John C. Ahlgrimm

John C. Ahlgrimm

A29

STATE OF WISCONSIN

CIRCUIT COURT

RACINE COUNTY

THE CLASS OF OWNERS AND

LESSORS OF MULTIPLE

PAMILY RESIDENTIAL

BUILDINGS CONSTRUCTED MOTION FOR

IN THE CITY OF RACINE DECERTIFICATION

DURING OR AFTER 1963 OF CLASS AND OF

WHICH HAVE FIVE OR CLASS CLAIM FOR

MORE DWELLING UNITS MONEY DAMAGES

PER BUILDING WHERE

GARBAGE (REFUSE AND Case No.

SOLID WASTE) COLLECTION

80-CV-1221

AND REMOVAL INVOLUNTARILY

NEVER EXISTED OR HAS BEEN

INVOLUNTARILY DISCONTINUED

HENRY CARPENTER, Representative

member,

Plaintiffs

vs.

COMMISSIONER OF PUBLIC WORKS

OF THE CITY OF RACINE,

WISCONSIN,

Defendant

The Defendant, by his attorneys in the

Office of the City Attorney moves the Court

to declare the alleged class insufficient on

A30

the grounds that joinder of all members is

not impracticable and to decertify that por-

tion of the alleged class members’ cause of

action which claims monetary damages on

behalf of the members of the alleged class.

Affidavits are attached hereto in support of

this motion.

Dated this 5th day of April, 1982.

CITY OF RACINE

CITY ATTORNEY'S OFFICE

/s/ Daniel P. Wright

Daniel P. Wright

Attorney for Defendant

730 Washington Avenue

Racine, Wisconsin 53403

(414) 636-9115

A3l

STATE OF WISCONSIN

CIRCUIT COURT

RACINE COUNTY

THE CLASS OF OWNERS AND

LESSORS OF MULTIPLE

FAMILY RESIDENTIAL

BUILDINGS CONSTRUCTED AFFIDAVIT OF

IN THE CITY OF RACINE ANTHONY J.

DURING OR AFTER 1963 SCHLAFFER

WHICH HAVE FIVE OR

MORE DWELLING UNITS Case No.

PER BUILDING WHERE 80-CV-1221

GARBAGE (REFUSE AND

SOLID WASTE) COLLECTION

AND REMOVAL INVOLUNTARILY

NEVER EXISTED OR HAS BEEN

INVOLUNTARILY DISCONTINUED

HENRY CARPENTER, Representative

member,

Plaintiffs

vs.

COMMISSIONER OF PUBLIC WORKS

OF THE CITY OF RACINE,

WISCONSIN,

Defendant

STATE OF WISCONSIN)

) ss

COUNTY OF RACINE )

Anthony J. Schlaffer, first being duly

A32

sworn on oath deposes and states as follows:

l. That he is an adult resident of the

City of Racine, County of Racine, State of

Wisconsin and that he has been the duly

appointed City Clerk for the City of Racine

since January l, 1978.

2. That in his capacity as City Clerk

he is charged by the Common Council and the

laws of the State of Wisconsin as agent for

service of process under §893.80(1), Stats.

3. That in his capacity as City Clerk

he maintains files of all Notice of Claims

asserted against the City cof Racine and its

officers, officials, agents or employees for

acts done in their official capacity.

4. That on December 19, 1979, the

affiant was served with a Notice of Claim

against the City of Racine relating the spe-

cific circumstances of the City failing to

pick up garbage at 3234 Northwestern Avenue,

Racine, the property of Henry Carpenter.

5. That affiant has not received ser-

A33

vice of and does not have in his files any

record of written notice of the circumstan-

ces of any claim for damages for failure to

pick up garbage from any person other than ,

Henry Carpenter.

Further affiant sayeth not.

Dated this 5th day of April, 1982.

/s/ Anthony J. Schlaffer

Anthony J. Schlaffer

Subscribed and sworn to

before me this 5th day

of April, 1982.

/s/ Karen M. Norton

Notary Public, Racine County, Wis.

My commission (Is)(Expires) 7-31-83

A34

Office of the Clerk

SUPREME COURT

STATE OF WISCONSIN

Madison, November 8, 1983

TO William Binetti Daniel P. Wright

932 Lake Avenue Deputy City Attorney

Racine, WI 53403 730 Washington Ave.

Racine, WI 53403

Hon. Emmanuel Vuvunas

730 Wisconsin Avenue

Racine, WI 53403

The Court today announced an order in your

case as follows:

No. 83-100 Henry Carpenter, representative

member, Vv. Commissioner of

Public Works of the City of

Racine

The court having considered

plaintiff-respondent-petitioner Carpenter's

petition for review of an adverse decision

of the court of appeals, district II, dated

September 26, 1983,

IT IS ORDERED the petition for

review is denied, with $50 costs.

MARILYN L. GRAVES

Clerk of Supreme Court.

A35

SUMMARY OF SHOREHAVEN, A_ LIMITED PARTNER-

SHIP, PETITIONER VS. COMMISSIONER OF PUBLIC

WORKS OF THE CITY OF RACINE, RESPONDENT

(Decided by Honorable Thomas P. Corbett,

October 29, 1978.)

"The Commissioner's report, defendant's

exhibit A on page 3 sets forth that collec-

tion service was being provided to 66% of

multiple family units of 5 units or more per

building. That 66% is actually 3,543 resi-

dential units as set forth on page 7. On

the same page it is revealed that the City

does not collect from 1,808 such multiple

dwelling units.” ;

"The Court accepts the Commissioner's

conclusion that arbitrary decisions have

been made on collection practices from

multiple family units."

"While the ordinance permits’ the

Commissioner to make and publish such addi-

tional rules and regulations as may be found

necessary for the proper collection, removal

and disposal of refuse in the City, there is

A36

no authority in the ordinance that would

permit the Commissioner to pick and choose

which householders will be served by refuse

collection and which will not on the basis

that some householders live in new apartment

buildings and some in older buildings that

have been served for years."

"Resolution no. 760 directed no change

in the service now provided apartments. The

refusal of the Commissioner of Public Works

to authorize and direct the collection of

solid waste or refuse, sometimes called gar-

bage, from the householders living in the

Shorehaven apartments while such collection

service is furnished to householders living

in other apartments in the City is

arbitrary, capricious and without a natural

basis and, therefore, constitutes a viola-

tion of the equal protection clause of the

14th amendment of the United States

Constitution. Resolution no. 760 in seeking

to continue the hereinabove condemned prac-

tices is equally unconstitutional."

A37

NOTICE OF CLAIM AGAINST CITY OF RACINE

TO: City of Racine

c/o Anthony J. Schlaffer, City Clerk

Racine, Wisconsin

Pursuant to Wisconsin Statute

895.43, we are hereby informing you that on

August 27, 1974 and at all times thereafter,

and specifically by an action filed against

the Commissioner of Public Works of the City

of Racine by Shore Haven, a limited part-

nership, the City of Racine had actual

notice of the claim and any delay in giving

notice has not in anyway prejudiced the City

of Racine, and that this document shall

constitute further notice of said claim and

that specifically, the City of Racine was on

notice from October 29, 1978 of this claim

in that the Honorable Thomas P. Corbett,

Judge of the Circuit Court of Racine County,

entered an order at that time in the case of

Shore Haven, a limited partnership, -vs- the

Commissioner of Public Works of the City of

Racine, determining that the actions for

A38

which the City had been put on notice as

aforesaid were unconstitutional. Claimant

herein states as follows:

1. The claimant is Henry Carpenter who

resides at 4183 Highway kK, Franksville,

Wisconsin and who is the owner of an eight

unit apartment building at 3234 Northwestern

Avenue, Racine, Wisconsin and Henry

Carpenter, as a member of a class of parties

having apartment buildings of five units or

more, which addresses are known to the City

of Racine and which addresses are not known

to claimant.

2. That pursuant to prior litigation

based on the statements of the Commissioner

of Public Works and others, the Commissioner

of Public Works has indicated that 3,542

residential units of five units or more per

building do obtain the pickup of their gar-

bage and the 1,808 do not have their outheinn

picked up and that subsequently’ the

Commissioner of Public Works has indicated

A39

that 70% of five unit or more per building

apartments do not have their garbage but

that 30% of such units do have their garbage

picked up.

3. That claimant herein personally and

as a member of said class and for and in

behalf of the class, allege that said action

by the Commissioner of Public Works consti-

tutes a violation of his constitutional

rights and the constitutional rights of each

and every member of the class of parties

owning multiple family units of five or more

per building, in that it violates the Equal

Protection Clause of the Fourteenth

Amendment of the United States Constitution

and the comparable clause of the Wisconsin

Constitution and that failure to pick up the

garbage of any householder in the City of

Racine, whether they regide in a, or own a,

household of five units or more constitutes

a violation of the Equal Protection Clause

of the Fourteenth Amendment of the United

A40

States Constitution and the comparable

clause of the Wisconsin Constitution.

4. That the appropriate relief sought

is that the City of Racine, Commissioner of

Public Works cease and desist from said

practice and herein undertake the pickup of

all garbage from all household residential

units, whether they be five family units per

building or more, or less and that relief is

further sought for Henry Carpenter together

with all other members of the class of

payment to each and every member of the

class and to Henry Carpenter for all sums

paid for private collection of garbage since

the City of Racine was first put on notice

by virtue of the action in Shore Haven, a

limited partnership, -vs- the Commissioner

of Public Works, dated August 27, 1974 or in

the alternative from the date of the Court

decision by Judge Thomas P. Corbett, dated

the 29th day of October, 1978.

5. That claimant herein requests the

A4l

Commissioner of Public Works of the City of

Racine to deposit the sum of $1,179,675.00

with Henry Carpenter, personaliy and as a

member of a class of parties having apart-

ment buildings with five or more units who

have not received collection and removal of

refuse and that said parties may proceed to

establish their claim proportionately to

said amount less the cost of administration

and attorney fees.

6. Claimant herein indicates for him-

self, personally and for all members of the

aforesaid class, that they are all property

tax payers in the City of Racine and are

entitled to equal protection of the laws.

7. That said claim is made against the

Commissioner of Public Works of the City of

Racine and the City of Racine, a municipal

corporation, and that said claim is not a

Court claim specifically requiring notice.

A42

Dated this 14 day of December , 1979.

HAND & QUINN, S.C.

By /s/ Matthew H. Quinn

Matthew H. Quinn - President

Attorneys for Henry Carpenter

HAND & QUINN, s.C.

Attorneys at Law

932 Lake Avenue

Racine, WI 53403

A43