Davis v. Grover
| Decision Date | 03 October 1990 |
| Docket Number | No. 90-1807,90-1807 |
| Parties | , 64 Ed. Law Rep. 1209 Lonzetta DAVIS, in her own behalf and as natural guardian of her daughter, Sabrina Davis; Velma Y. Frier, in her own behalf and as natural guardian of her daughter, Shavonne Frier; Janet Grice, in her own behalf and as natural guardian of her son, Melvin Grice; Doris Pinkney, in her own behalf and as natural guardian of her daughter, Antionette Roberson; and Thais M. Jackson, in her own behalf and as natural guardian of her daughter, Tamika Carr; Bruce-Guadalupe Community School; Harambee Community School; Highland Community School; Juanita Virgil Academy; Urban Day School and Woodlands School, Plaintiffs-Respondents, d v. Herbert J. GROVER, Superintendent of Public Instruction of the State of Wisconsin, Defendant-Cross-Claimant-Defendant- Respondent,d Felmers O. CHANEY, Richard Collins, Mary Ann Braithwaite, Lauri Wynn, Linda Oakes, George Williams, Melanie Moore, Donald A. Feilbach, Wisconsin Association of School District Administrators, Inc., Wisconsin Education Association Council, National Association for the Advancement of Colored People, Milwaukee Branch, Association of Wisconsin School Administrators, Milwaukee Teachers Education Association, Wisconsin Congress of Parents & Teachers, Inc., Milwaukee Administrators & Supervisors Council, Inc., and Wisconsin Federation of Teachers, Intervenors-Petitioners-Appellants, v. Charles P. SMITH, State Treasurer and Board of School Directors of the City of Milwaukee, Cross-Claimant-Defendant-Respondent. d . Oral Argument |
| Court | Wisconsin Court of Appeals |
Friebert, Finerty & St. John, S.C. by Robert H. Friebert (argued), Charles D. Clausen, David S. Branch, Caren B. Goldberg, and Peter K. Rofes, Milwaukee, and by Bruce Meredith, Madison, on the briefs, for intervenors-petitioners-appellants.
Landmark Legal Foundation Center for Civil Rights by Clint Bolick (argued), Allyson Tucker, Jerald L. Hill, Mark Bredemier, Washington, D.C., and by Anne Sulton, Madison, on the briefs, for plaintiffs-respondents.
Donald J. Hanaway, Atty. Gen., on the briefs, with Warren D. Weinstein, Asst. Atty. Gen. (argued), for defendant-cross-claimant-defendant-respondent, Herbert J. Grover, Superintendent of Public Instruction of the State of Wis., and the cross-claimant-defendant-respondent, Charles P. Smith, State Treasurer.
Grant F. Langley, City Atty., with Patrick B. McDonnell and Susan D. Bickert, Milwaukee, for cross-claimant-defendant-respondent, Bd. of School Directors of the City of Milwaukee.
Lathrop & Clark by Jill Weber Dean and Michael J. Julka, Madison, amicus curiae, for the Wisconsin Ass'n of School Boards, Inc.
Eva M. Soeka, Milwaukee, and Robert A. Destro, Washington, D.C., amicus curiae, for the Governor and Legislators.
Before EICH, C.J., GARTZKE, P.J., and MYSE, J.
Felmers O. Chaney and others appeal from a judgment 1 declaring that sec. 119.23, Stats., 2 does not violate the Wisconsin Constitution. The statute, which provides a state subsidy for certain low-income Milwaukee children to attend private schools, was enacted as part of the 1989 state budget adjustment bill. We reverse the judgment because enactment of sec. 119.23 as part of a multi-subject bill violated art. IV, sec. 18, of the Wisconsin Constitution, which provides: "No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title."
The purpose of art. IV, sec. 18 is to assure that the legislature and people of Wisconsin are advised of the real nature and subject matter of proposed legislation, and to prevent bills benefiting private or local interests from being "smuggled" through the legislature. The Wisconsin Supreme Court has created two tests to determine whether a bill is "private or local."
One test applies to bills that are specific as to persons, places, or things. The other test applies to legislation directed to a particular class. We conclude that, because it is addressed to cities of the first class, the legislation before us is "classification" legislation. This is so even though Milwaukee is presently the only first class city in Wisconsin, because the class is open to additional members. We conclude the legislation fails to satisfy at least two parts of the supreme court's test for classification legislation. It is therefore "private or local" legislation that cannot constitutionally be passed as part of a bill which embraces more than one subject.
Although we apply the classification test, we respectfully suggest that a slightly modified "specific" test could be better suited to determine whether experimental social legislation such as this school program is private or local. But as an error-correcting court, we must follow the precedents established by the Wisconsin Supreme Court. Those precedents compel a single conclusion: sec. 119.23, Stats., is classification legislation enacted contrary to art. IV, sec. 18, of the Wisconsin Constitution. 3
Because it is part of Chapter 119, Stats., sec. 119.23 applies only to cities of the first class. Section 119.01, Stats. 4 Milwaukee is presently the only city of the first class in Wisconsin. The statute allows low-income students in a first class city to enroll in private nonsectarian schools. No more than one percent of the district's membership may participate in a given year. The trial court found that, as applied to Milwaukee, the statute permits participation by approximately 1,000 students. For each participating student, state educational funding is diverted from that city's public schools to the participating private schools, pursuant to a legislatively established formula.
Section 119.23, Stats., was enacted on April 27, 1990, as sec. 228 of 1989 Senate Bill 542 (1989 Act 336), an adjustment to the biennial budget passed the previous year. Although the subject of sec. 119.23 was expressed in the title to S.B. 542, the bill embraced many other subjects. That circumstance raises the issue whether the Parental Choice law was a "private or local bill" and therefore enacted in violation of art. IV, sec. 18 of the Wisconsin Constitution. This is a question of law which we decide without deference to the trial court.
The Wisconsin Supreme Court has applied the "private or local bill" provision in art. IV, sec. 18, in three comparatively recent cases: Soo Line R.R. v. DOT, 101 Wis.2d 64, 303 N.W.2d 626 (1981), Milwaukee Brewers Baseball Club v. DH & SS, 130 Wis.2d 79, 387 N.W.2d 254 (1986), and City of Brookfield v. Milwaukee Metro. Sewerage Dist., 144 Wis.2d 896, 426 N.W.2d 591 (1988).
The Soo Line court invalidated a statute which directed the department of transportation and Soo Line Railroad Company to establish an at-grade crossing at a specified highway and railroad intersection. The statute was enacted as part of the 1977 budget bill which, of course, embraced many subjects. The court described the constitutional limitation as intended to assure that the legislature and people of the state are advised of the real nature and subject matter of the legislation being considered to avoid fraud or surprise. 101 Wis.2d at 72, 303 N.W.2d at 630. It quoted from Milwaukee County v. Isenring, 109 Wis. 9, 23, 85 N.W. 131, 136 (1901) that the framers of the constitution "intended to guard against the danger of legislation, affecting private or local interests, being smuggled through the legislature under misleading titles." The court noted that under its prior decisions, if the subject matter of an enactment is of general statewide concern, the law is not a local bill within the meaning of art. IV, sec. 18. The court held that because the bill failed that test, it was a private or local bill. Since it had been passed as part of the budget bill, which embraced more than one subject, and the subject of the statute was not expressed in the bill's title, enactment of the statute violated art. IV, sec. 18.
In Milwaukee Brewers, the court reviewed a statute which directed the department of health and social services to build a prison in the Menomonee Valley in Milwaukee. The statute was adopted as part of the 1983 budget bill, an omnibus bill. After reviewing Soo Line and other decisions, the court held 130 Wis.2d at 115, 387 N.W.2d at 269. The court held that the prison-siting statute satisfied the two-part test and therefore was not a private or local law. Accordingly, enactment of the statute did not violate art. IV, sec. 18. 130 Wis.2d at 120, 387 N.W.2d at 272.
The Milwaukee Brewers court added:
The focus of the [prison-siting] bill was on a matter of statewide concern, not a private or local concern. Given the nature of the concern, and the direct and immediate effects this provision had on that concern, the elected representatives of those members of the public affected by this provision had to be aware of it. After six years of struggle, a $51 million prison in the heart of Milwaukee could scarcely be 'smuggled' through the legislature in any manner, shape, or form. The real nature and subject matter of this provision had to be known, and this, in turn, assured accountability. A legislator representing the affected area, who voted for the budget with this item included, could not with any credibility assert to a questioning constituent that the legislator did not know the prison was a part of the budget bill. Thus, the underlying purposes of Art. IV, Sec. 18, were met.
In Brookfield, the...
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