Milwaukee Brewers Baseball Club v. Wisconsin Dept. of Health and Social Services

• Decision Date: 12 May 1986
• Docket Number: No. 85-0164,85-0164
• Citation: 130 Wis.2d 79,387 N.W.2d 254
• Parties: MILWAUKEE BREWERS BASEBALL CLUB, a Wisconsin limited partnership, Milwaukee Brewers Baseball Club, Inc., Raymond Elwood Jackson and Ray Jackson's, Inc., Plaintiffs-Appellants, and Cross-Respondents, v. WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, and Linda Reivitz, Defendants-Respondents, and Cross-Appellants-Petitioners.
• Court: Wisconsin Supreme Court

Page 254

387 N.W.2d 254

130 Wis.2d 79

MILWAUKEE BREWERS BASEBALL CLUB, a Wisconsin limited partnership, Milwaukee Brewers Baseball Club Inc., Raymond Elwood Jackson and Ray Jackson's, Inc., Plaintiffs-Appellants, and Cross-Respondents, v. WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, and Linda Reivitz, Defendants-Respondents, and Cross-Appellants-Petitioners.

No. 85-0164.

Supreme Court of Wisconsin.

Argued Nov. 25, 1985.

Opinion Filed May 12, 1986.

Robert W. Larsen, Asst. Atty. Gen., argued, for defendants-respondents and cross-appellants-petitioners; Bronson C. La Follette, Atty. Gen., on brief.

David E. Beckwith, Milwaukee, argued, for plaintiffs-appellants, and cross-respondents; Michael A. Bowen, Leonard G. Leverson and Foley & Lardner, Milwaukee, on brief.

Brady C. Williamson, Brett A. Thompson, Lawrence Bensky and La Follette & Sinykin, Madison, for amicus curiae the Wisconsin Senate and its majority leader and for the Wisconsin Assembly and its speaker.

William A. BABLITCH, Justice.

The 1983 budget bill, more than 400 pages long, is an omnibus bill dealing with a broad range of unrelated topics. The plaintiffs (hereinafter, "the Brewers") challenge three provisions of the bill: 1) sec. 46.05(1o ) Stats., which requires the Wisconsin Department of Health and Social Services (DHSS) to build a prison in the Menomonee Valley; 2) 1983 Wis.act 27, sec. 2020(32m)(f), which forbids the DHSS to hold a contested case hearing on the final Environmental Impact Statement (EIS) for the prison; and 3) sec. 46.0435(3) which established special standards for judicial review of the administrative procedures relating to the prison. The Brewers argue that these provisions violate art. 1, sec. 1 of the Wisconsin Constitution which guarantees equal protection of the law, as well as art. 4, sec. 18 of the Wisconsin Constitution relating to private or local bills. ¹ The court of appeals held that the siting provision, sec. 46.05(1o)(a), violates art. 4, sec. 18 dealing with private or local bills. We agree with the Brewers that the two provisions which relate to special administrative and judicial review procedures violate the Wisconsin Constitution's guarantee of equal protection, and they are therefore stricken. We conclude that the provision which directs DHSS to construct the prison in the Menomonee Valley does not violate the Wisconsin Constitution in either respect.

Although this opinion preserves the legislative provision which directs the DHSS to construct a prison in the Menomonee Valley, construction cannot begin until the Brewers have been given the full protection of Wisconsin Environmental Policy Act (WEPA) and judicial review procedures, many of which have previously been denied them. If the legislature chooses to persist in its directive to the DHSS, it may only fashion such special procedures as are consistent with the constitutional guarantees of equal protection of the law.

This opinion also addresses the issue of what constitutes a private or local law. We hold that the siting provision does not violate the constitutional provision of art. 4, sec. 18. We further hold that the constitutional mandate of art. 4, sec. 18 of the Wisconsin Constitution acts to inform the legislature that if it desires to enact legislative provisions that are specific as to any location, individual, or entity, it must do so in a separate bill under separate title.. The only exception art. 4, sec. 18 allows is for provisions whose general subject matter is a state responsibility of statewide dimension. Even for those provisions, enactment must have direct and immediate effect on a specific statewide concern or interest. Then, and only then, is the inclusion of the provision in a differently titled bill constitutionally acceptable.

I. EQUAL PROTECTION

"[T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.... Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation." Railway Express v. New York, 336 U.S. 106, 112-"13, 69 S.Ct. 463, 466-"67, 93 L.Ed. 533 (1949). (Jackson, J., concurring).

Most citizens agree on the urgent need for more urban prisons but only if, as the political history of prison siting in this state unfortunately reveals, the prisons are built in "someone else's backyard." Quite obviously, if an urban prison is built, it must be built in somebody's backyard. The legislature in the 1983 budget bill, in response to the critical need for prison space, took two actions. First, it designated who was to have a prison constructed in their backyard. Second, it directed that those who were to have that prison in their backyard would have significantly fewer rights of environmental review than all other citizens who might challenge prison construction elsewhere in the state.

Unquestionably the legislature had the right to place a prison in somebody's backyard, be it the Menomonee Valley or anywhere else.

However, of the 23 correctional institutions recommended for construction by the Flad Report (16 of which were for southeastern Wisconsin), the legislature singled out only one--the Menomonee Valley prison--for special treatment. It is only those persons with standing to oppose this one specific site in the Menomonee Valley who are governed by the truncated judicial and administrative procedures applicable to review of the environmental impact of the site. We conclude these provisions which articulate this special treatment violate the Wisconsin Constitution's guarantee of equal protection of the law.

The facts are undisputed. In 1976, the state commissioned Flad and Associates, Inc. to develop a Six Year Master Plan which addressed the state's correctional needs through 1985. The 1977 Flad Report was a comprehensive document which included projections of future inmate populations and recommendations on policy changes, facility improvements, and additions.

Specifically, the Flad Report based its findings on the needs of the existing probation and parole regions in the state numbered 1-"5. Region numbers 2 and 3, referred to in the Flad Report as the "southeast section of Wisconsin," consist of the counties of Milwaukee (region 3), and Kenosha, Racine, Waukesha, Walworth, Washington and Ozaukee (region 2). Together the populations of these counties total approximately 1.76 million people, roughly 35 to 40 percent of the state's entire population.

The Flad Report emphasized the need for correctional facilities for the southeast section of the state:

"2. The present system is institution-based, not community-based. In the past, institutions were located in rural areas. Today, with trends toward urbanization correctional facilities should be located to serve this population.

"The southeast section of Wisconsin is contributing the majority of offenders to the system. The major existing facilities, however, are located in the northeast section of the state, distant from the communities (such as Milwaukee County) which contribute the majority of inmates." Flad Report p. 11.

The Flad Report recommended building 23 new correctional institutions in the state. Consistent with its emphasis on the need for correctional facilities in the southeastern section of the state, it recommended that the state construct 16 of the 23 new facilities in the southeastern section. It recommended siting ten of these in region 3, Milwaukee county, and six in region 2. ²

In the 1983 budget bill the legislature declared that the establishment of a state correctional facility, including any new metropolitan correctional institution, was a matter of general, statewide interest. The legislature added that "... prison overcrowding is a critical problem in this state which restricts the options available to judges, prosecutors, and prison officials." 1983 Wis.act 27, sec. 2020(32g)(a). The legislature concluded that the siting of a new metropolitan correctional institution "... necessitates an expedited environmental review process and will require the direct action of the legislature in establishing the site...." 1983 Wis.act 27, sec. 2020 (32g)(b).

Accordingly, in the 1983 budget bill, the legislature directed the DHSS to build a correctional institution at a specific site in Milwaukee county. The DHSS is the state agency charged with responsibility for prison construction and the environmental review of the impact of that construction. The language in the bill reads as follows:

"... the department shall establish a correctional institution located in Milwaukee in the area bounded on the north by highway I 94, on the south and west by the Menominee [statutory spelling] river and on the east by 35th street on property owned by the Milwaukee road railroad on March 28, 1983. The department may acquire additional land owned by the Milwaukee road railroad on March 28, 1983, on the west and south sides of and contiguous to the Menominee river." 1983 Wis.act 27, sec. 953 p.

This location is the Menomonee Valley in the City of Milwaukee. This site is approximately a 6-square-block section directly adjacent to Milwaukee County Stadium. The southeast region to which the Flad Report refers is approximately 2,290 square miles.

Although the legislature reaffirmed its commitment to WEPA, the legislature also provided for what it termed "expedited" administrative and judicial review procedures applicable to environmental review of the site, by precluding the DHSS from holding a contested case hearing on the final EIS for "any new metropolitan prison." Instead, DHSS was to hold an informational hearing for the purpose of providing information and soliciting comments, material and testimony to assist the legislature and DHSS. 1983 Wis.act 27, sec. 2020(32m)(f).

The legislature also directed the courts, as part of this "exp...