Fox v. Wisconsin Dept. of Health and Social Services

• Decision Date: 01 June 1983
• Docket Number: No. 82-1594,82-1594
• Parties: , 13 Envtl. L. Rep. 20,932 Leslie FOX, Ardelle Malone, Doris E. Young, Lorna L. Jackson, Rose Coleman, Virginia Cooper, Marlene Cross, Linda Cunningham and Linda Porter, Petitioners- Respondents, Norman O. Sauey and Carla M. Sauey, and The Portage Area Association for Progress, Intervenors-Respondents, v. WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellant. E. Michael McCANN, Petitioner-Respondent, Norman O. Sauey and Carla M. Sauey, and The Portage Area Association for Progress, Intervenors-Respondents, v. WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellant.
• Court: Wisconsin Supreme Court

Page 532

334 N.W.2d 532

112 Wis.2d 514, 13 Envtl. L. Rep. 20,932

Leslie FOX, Ardelle Malone, Doris E. Young, Lorna L.

Jackson, Rose Coleman, Virginia Cooper, Marlene

Cross, Linda Cunningham and Linda

Porter, Petitioners- Respondents,

Norman O. Sauey and Carla M. Sauey, and The Portage Area

Association for Progress, Intervenors-Respondents, v. WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellant.

E. Michael McCANN, Petitioner-Respondent,

Norman O. Sauey and Carla M. Sauey, and The Portage Area

Association for Progress, Intervenors-Respondents, v. WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellant.

No. 82-1594.

Supreme Court of Wisconsin.

Argued April 12, 1983.

Decided June 1, 1983.

Robert W. Larsen, Asst. Atty. Gen. (argued), with whom on the briefs was Bronson C. La Follette, Atty. Gen., for appellant.

Kevin J. Lyons (argued), Renee Martin and Cook & Franke, S.C., Milwaukee, on brief, for The Portage Area Ass'n for Progress.

E. Michael McCann, Dist. Atty. (argued), and Brian B. Burke, Asst. Dist. Atty., Milwaukee, R. Jeffrey Krill (argued), and Michael, Best & Friedrich, Milwaukee, for Norman and Carla Sauey.

Thomas G. Halloran, Milwaukee, for Leslie Fox, et al.

DAY, Justice.

This is an appeal from a memorandum decision ¹ of the circuit court for Milwaukee county, Hon. Patrick T. Sheedy, Judge, entered on August 4, 1982. The trial court, in a review of a ch. 227 proceeding conducted by the Department of Health and Social Services (DHSS) determined that a Final Environmental Impact Statement (FEIS) which had been prepared for a proposed maximum security prison in Portage failed to comply with the statutory requirements found in the Wisconsin Environmental Policy Act (WEPA). ² The trial court remanded the case to DHSS with directions to prepare a statement in compliance with that statute. The trial court also issued an injunction which prohibited further work on the prison until such time as the statutory mandates of WEPA were met.

DHSS appealed. On December 2, 1982, a petition to bypass the court of appeals was filed. This court granted the petition on December 27, 1982, 109 Wis.2d 705, 329 N.W.2d 215, and on January 19, 1983, granted a motion for temporary relief pending appeal to allow DHSS to engage in planning activities for the project.

The issues considered on appeal are: ³

1. Did the petitioners (McCann, Fox, et al.) have standing to bring an action seeking review of the administrative decision determining the FEIS to be adequate?

2. If not, can the intervenors (Sauey, et al.) continue to press their claims even though the petitioners have been dismissed from the action?

We conclude that the petitioners lacked standing to seek review of the administrative decision. We also conclude that the intervenors may not continue to press their claims once the original petitioners have been dismissed for lack of standing.

Accordingly, we reverse the decision and order of the trial court and direct the court to dismiss the petitions for review.

Prison overcrowding has been a problem in this state since the mid-1970's. In July, 1976, DHSS requested the State Building Commission (SBC) to release funds for the preparation of a study on the problem. The funds were authorized in September, 1976. Flad and Associates, Inc. was commissioned to develop a Six Year Master Plan (hereinafter Flad Report) addressing the state's correctional needs through 1985. The report was a comprehensive planning document which included: a description of the existing correctional system, projections of the future inmate populations, alternatives to the present system (including a "do nothing" alternative) and recommendations on policy changes, facility improvements and additions and legislative changes. Included in the recommendations was the construction of two maximum security institutions in the southeastern part of the state.

Thirty-nine sites, all government owned property, were initially identified as potential locations for prison facilities. Many of these sites were deemed to be unsuitable and the list was reduced to ten sites.

In March, 1979, the firm of Howard Needles Tammen and Bergendoff (HNTB) was hired to prepare an environmental impact statement on those ten sites. The preliminary environmental impact report on these sites (hereinafter ten site-PER) was completed in July, 1979. Hearings on this report were held. However, because of substantial local opposition to each of the sites, in October, 1979, Governor Dreyfus announced that none of the sites would be considered any further as a prison location. He then invited communities interested in being considered as a location for the prison to submit applications to his office.

Ten communities expressed an interest in the prison. The proffered locations were reviewed by an ad hoc committee established by the governor. This committee recommended sites in Portage, Milwaukee, and the town of Caledonia in Racine county. The governor eliminated the Milwaukee area from further consideration. After voters in a referendum in the town of Caledonia rejected locating a prison in their community, he announced in January, 1980 that the new prison would be built in Portage.

In April, 1980, the legislature directed DHSS to construct a new prison. ⁴ Although the legislation specified that the prison be built on one of three sites in the Milwaukee area, that language was vetoed by the governor.

On May 27, 1980, the SBC voted to spend $700,000 to prepare plans for a maximum-medium security prison in the Portage area. The legislature's Joint Committee on Finance voted to release funds for the project but the Portage site was not mentioned in the funding resolution.

On May 28, 1980, HNTB was hired to prepare an environmental impact statement on two potential sites in the Portage area. The study was to include an examination of the "do nothing" alternative.

HNTB completed a Preliminary Environmental Report (Portage PER) on the Portage sites in October, 1980. After soliciting and receiving comments on that report, the Final Environmental Impact Statement (FEIS) was prepared. It was published in February, 1981. A public hearing on the FEIS was held in Portage on March 30, 1981. In May, 1981, HNTB completed a Supplemental Sulfur Dioxide Air Quality Report that was made part of the FEIS.

On March 27, 1981, DHSS received a request for a contested case hearing under section 227.064(1), Stats. ⁵ challenging the sufficiency of the FEIS. Those requesting the hearing included the Hon. E. Michael McCann, Milwaukee County District Attorney, Ms. Leslie Fox and others (hereinafter collectively referred to as Fox, et al.), relatives of individuals who were at the time incarcerated in the Wisconsin prison system, and the Portage Area Association for Progress (hereinafter PAAP). DHSS granted the request and hearings were held in June and July, 1981.

Those hearings were conducted before Robert Kletzien, a DHSS hearing examiner, and Eric Stanchfield, executive assistant to DHSS Secretary, Donald Percy. In a memorandum dated May 21, 1981 and made part of the hearing record on May 26, 1981, Mr. Percy delegated to Mr. Stanchfield the authority to make the final decision for DHSS on the adequacy of the FEIS.

On December 18, 1981, Stanchfield issued his decision which concluded that the FEIS met the requirements set out in WEPA. He therefore ordered that the petitions challenging the sufficiency of the FEIS be dismissed. On January 20, 1980, Percy filed a Record of Decision ⁶ in which the actual site for the prison was chosen.

The petitioners sought judicial review of these decisions. ⁷ On February 8, 1982, twenty-four days after the first petition to review the administrative decision was filed and fifty-two days after Stanchfield's decision, Norman and Carla Sauey filed a petition to intervene in the case. PAAP filed a notice of participation in both lawsuits challenging Stanchfield's decision on February 10, 1982.

On August 4, 1982, Judge Sheedy issued a memorandum decision in which he determined that the FEIS did not meet the requirements in WEPA. Specifically, the trial judge found that the FEIS lacked the following: a sufficient alternatives section, a sufficient archeological study and an adequate water quality and air quality analysis. The court also determined that the due process rights of the parties to the administrative hearing were violated by DHSS's conduct of the administrative hearing process. The court remanded the case to DHSS with directions to prepare a FEIS that complied with the statutory requirements.

The first issue on appeal is whether the petitioners have standing to bring an action seeking review of the administrative decision determining the FEIS to be adequate. The standing of the petitioners is challenged by DHSS.

Standing to seek review of an administrative decision is governed by sections 227.15 ⁸ and 227.16(1), STATS.1979⁹- 80. Wisconsin's Environmental Decade, Inc. v. PSC., 69 Wis.2d 1, 9, 230 N.W.2d 243 (1975) (hereinafter WED I ). Both sections require a petitioner to "show a direct effect on his legally protected interests." 69 Wis.2d at 9, 230 N.W.2d 243.

This court has established a two-part analysis, similar to the federal test, for determining whether parties seeking to challenge an administrative rule have standing. 69 Wis.2d at 10, 230 N.W.2d 243. The first step is to determine "whether the decision of the agency directly causes injury to the interest of the petitioner. The second step is to determine whether the interest asserted is recognized by law." 69 Wis.2d at 10, 230 N.W.2d 243. The first step has been compared to the federal test: Does the challenged action cause the petitioner injury in fact? 69 Wis.2d at 10, 230 N.W.2d 243; St. ex rel. 1st Nat. Bank v. M & I Peoples Bank, 95 Wis.2d 303, 308-309, 290 N.W.2d 321 (1980); Bence v. Milwaukee, 107 Wis.2d 469, 479, 320 N.W.2d 199 (1982).

This court has frequently...