AB1157: Bill Text

LRB-5918/1

KRP:wlj

2023 - 2024 LEGISLATURE

2023 Assembly BILL 1157

March 22, 2024 - Introduced by Representative Gundrum. Referred to Committee on Criminal Justice and Public Safety.

AB1157,1,7 An Act to repeal 823.02; to renumber and amend 823.01 and 823.015; to amend 823.03, 823.04, 823.05 and 823.06; and to create subchapter I (title) of chapter 823 [precedes 823.001], 823.001, 823.002, 823.01 (1), 823.012, 823.013, 823.021, 823.024, subchapter II (title) of chapter 823 [precedes 823.029] and subchapter III (title) of chapter 823 [precedes 823.065] of the statutes; relating to: abrogating the common law and codifying the law of public nuisance.

Analysis by the Legislative Reference Bureau

This bill abrogates the common law of public nuisance and codifies the law of public nuisance.

The bill defines “public nuisance” to mean an unlawful condition that violates a right common to the general public to use public real property, and the bill defines “unlawful condition” to mean a condition, activity, or situation that is expressly prohibited by the laws of this state. The bill provides that a person may be held liable for creating or maintaining a public nuisance only if the person controls the public nuisance at the time a cause of action for public nuisance arises.

The bill provides that only the following persons may maintain a public nuisance action:

1. The state or the city, village, town, or county (political subdivision) that has a substantial ownership interest in or authority over the real property, or the ancillary space related to the real property, to which the public nuisance relates.

2. A nongovernmental person (private party) that suffers injuries peculiar to the private party, so far as necessary to protect the private party's rights and to obtain an injunction to prevent the same.

If the plaintiff is the state or a political subdivision (governmental body), all of the following apply:

1. The governmental body may maintain the public nuisance action only by an attorney employed by the governmental body.

2. If more than one governmental body is a plaintiff, there is a presumption that only one governmental body has standing to maintain the action, and the court must, on its own motion, determine which governmental bodies have standing.

3. The governmental body may not maintain the public nuisance action solely to recover a financial expenditure of the governmental body related to the remediation, abatement, or injunction of an unlawful condition.

If the plaintiff is a private party, all of the following apply:

1. The private party bears the burden of establishing by clear and convincing evidence that the private party suffered an injury peculiar to the private party.

2. The fact that public real property has a spiritual, cultural, emotional, or otherwise personal significance to a private party is not, by itself, sufficient to establish that the use of or damage to the real property is an injury peculiar to the private party.

3. The private party may not maintain both a public nuisance action and a private nuisance action related to damages resulting from the same unlawful condition.

The bill limits the remedies available in an action for public nuisance to only the following:

1. Injunctive relief sufficient to abate the public nuisance.

2. Monetary damages in an amount reasonably necessary to abate the public nuisance but not including a) speculative estimates of current needs, b) costs of future remediation, c) costs of investigating and identifying the existence of an unlawful condition, or d) costs of public services provided as a result of the public nuisance.

3. Compensatory damages for a private party's injury that is peculiar to the private party.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB1157,1 Section 1. Subchapter I (title) of chapter 823 [precedes 823.001] of the statutes is created to read:

AB1157,3,3 CHAPTER 823

AB1157,3,5 SUBCHAPTER I PUBLIC NUISANCES; GENERALLY

AB1157,2 Section 2. 823.001 of the statutes is created to read:

AB1157,3,8 823.001 Abrogation of common law. The common law of public nuisance in this state is abolished.

AB1157,3 Section 3. 823.002 of the statutes is created to read:

AB1157,3,10 823.002 Definitions. In this subchapter:

AB1157,3,15 (1) “Government attorney” means an attorney regularly employed on a salaried basis by this state or a political subdivision. “Government attorney” does not include an attorney hired on a contingency fee or hourly basis or on a short-term or temporary basis, including a legal fellow, special prosecutor, or other similar provisional position.

AB1157,3,16 (2) “Political subdivision" means a city, village, town, or county.

AB1157,3,18 (3) “Public nuisance” means an unlawful condition that violates a right common to the general public to use public real property.

AB1157,3,20 (4) “Real property” includes the waters of the state, as defined under s. 281.01 (18).

AB1157,3,22 (5) “Unlawful condition” means a condition, activity, or situation that is expressly prohibited by the laws of this state.

AB1157,4 Section 4. 823.01 of the statutes is renumbered 823.01 (intro.) and amended to read:

AB1157,4,3 823.01 Jurisdiction over Causes of action for public nuisances. (intro.) Any person, county, city, village or town of the following persons may maintain an action to recover damages or to abate a public nuisance from which:

AB1157,4,7 (2) Private action. Subject to s. 823.013, a nongovernmental person that suffers injuries peculiar to the complainant are suffered person, so far as necessary to protect the complainant's person's rights and to obtain an injunction to prevent the same.

AB1157,5 Section 5. 823.01 (1) of the statutes is created to read:

AB1157,4,12 823.01 (1) Governmental action. Subject to s. 823.012, the state or a political subdivision that has a substantial ownership interest in or authority over the real property, or the ancillary space related to the real property, to which the public nuisance relates.

AB1157,6 Section 6. 823.012 of the statutes is created to read:

AB1157,4,17 823.012 Enforcement by government. (1) The state or a political subdivision that maintains a public nuisance action authorized under s. 823.01 (1) may maintain the action only by a government attorney employed by the state or that political subdivision.

AB1157,4,23 (2) In a public nuisance action maintained under s. 823.01 (1) by more than one political subdivision, or by the state and one or more political subdivisions, the court shall, on its own motion, determine which governmental parties have standing to maintain the action. There is a presumption under this subsection that only one governmental party has standing, which may be rebutted with clear and convincing evidence.

AB1157,5,2 (3) The state or a political subdivision may not maintain a public nuisance action under s. 823.01 (1) solely to recover a financial expenditure by the state or political subdivision related to the remediation, abatement, or injunction of an unlawful condition.

AB1157,7 Section 7. 823.013 of the statutes is created to read:

AB1157,5,7 823.013 Enforcement by private parties. (1) In an action to enjoin a public nuisance under s. 823.01 (2), a nongovernmental person bears the burden of establishing by clear and convincing evidence that the person suffered an injury peculiar to the person.