Milwaukee Brewers v. Dept. of Health & Social Services
| Decision Date | 18 June 1985 |
| Citation | 126 Wis.2d 512,375 N.W.2d 220 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. MILWAUKEE BREWERS BASEBALL CLUB, a Wisconsin limited partnership, MILWAUKEE BREWERS BASEBALL CLUB, INC., RAYMOND ELWOOD JACKSON and RAY JACKSON'S, INC., Plaintiffs-Appellants, v. WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, and LINDA REIVITZ, Defendants-Respondents. 85-164. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment of the circuit court for Dane county: Angela B. Bartell, Judge.
Before GARTZKE, P.J., DYKMAN, J., and BRUCE F. BEILFUSS, Reserve Judge.
The dispositive issue in this appeal 1 is whether sec. 46.05(1o)(a), Stats., designating the proposed Menominee 2 Valley prison site in Milwaukee, was enacted contrary to Wis. Const. art. IV, sec. 18, 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.' Section 46.05(1o)(a), which originated as sec. 953p of the 1983 Budget Bill, 3 was enacted by sec. 953p, Wis. 1983 Act 27. The budget bill embraced many subjects and its title gave no indication that it contained legislation that would designate the Menominee Valley site. We hold that sec. 953p is a local bill and that its enactment violated Wis. Const. art. IV, sec. 18. We therefore reverse the circuit judgment which declared sec. 46.05(1o)(a) constitutional.
This action for declaratory relief and for an injunction is brought by the appellants, Milwaukee Brewers Baseball Club, which exhibits professional baseball games near the proposed prison site, and Raymond Jackson and his corporation, operators of a restaurant near the site. The defendants are the Department of Health and Social Services, the agency charged with construction and operation of the prison, and Linda Reivitz, its secretary.
The circuit court concluded that sec. 953p was neither private nor local and therefore not subject to Wis. Const. art. IV, sec. 18. 4 Whether sec. 953p is a private or local bill is a question of law. We review questions of constitutional law without deference to the decision of the circuit court.
Constitutional analysis must take into account the heavy burden on the plaintiffs to demonstrate beyond a reasonable doubt that the legislation they challenge is unconstitutional. State v. Holmes, 106 Wis.2d 31, 41, 315 N.W.2d 703, 708 (1982). The plaintiffs have met their burden.
The 1983 Budget Bill was enacted by 1983 Wis. Act 27 with vetos not pertinent here. Section 953h [sec. 46.0435(1), Stats.] of the budget bill defines a 'new metropolitan correctional institution' as 'any correctional institution in a city having a population of 500,000 or more the site for which is designated by the legislature by statute on or after the effective date of this section (1983), but prior to January 1, 1985.' It is undisputed that the city of Milwaukee has a population exceeding 500,000. Section 953p [sec. 46.05(1o)(a)] designates a site in Milwaukee. It requires the department to 'establish a correctional institution located in Milwaukee in the area bounded on the north by Highway 194, on the south and west by the Menominee river and on the east by 35th street on property owned by the Milwaukee road railroad on March 28, 1983.' 5
Section 2020(32g)(b) of the bill 'reaffirms [the legislature's] commitment to the Wisconsin environmental policy act and the requirement that executive agencies conform to section 1.11 of the statutes and prepare environmental impact statements on major state actions significantly affecting the human environment.' The bill contemplates comprehensive environmental review of the site selection and the possibility of the site being changed, based on that review. Secs. 953h, 2020(32g)(c), 2020(32g)(d), and 2020(32m)(f).
The budget bill adopts special administrative and judicial review provisions applicable to the Menominee Valley prison project only. It forbids the department to hold a contested case hearing on the final environmental impact statement and directs the department to hold 'an informational hearing' 'solely for the purpose of providing information and soliciting comments, materials and testimony to assist the legislature and the department.' Sec. 2020(32m)(f). A person aggrieved by a decision relating to a new metropolitan correctional institution because of failure to comply with Wisconsin Environmental Protection Act may seek judicial review under ch. 227. Sec. 953h [sec. 46.0435(2), Stats.]. A court may grant a provisional remedy or extraordinary relief with regard to that decision only if the petitioner proves by clear and convincing evidence that procedural defects cannot be remedied during the construction phase of the project. Sec. 953h [sec. 46.0435(3)].
Article IV, sec. 18, has been part of Wisconsin's constitution since its adoption in 1848. Its purpose is to protect the public from enactment of statutes whose effect is unknown to legislators and to the people and to direct the legislator's attention to a proposed law. Soo Line R. Co. v. Transportation Dept., 101 Wis.2d 64, 72, 303 N.W.2d 626, 630 (1981). It is "intended to guard against the danger of legislation, affecting private or local interests, being smuggled through the legislature under misleading titles . . .." Id. at 72-73, 303 N.W.2d at 630 (quoting Milwaukee County v. Isenring, 109 Wis. 9, 23, 85 N.W. 131, 136 [1901]).
Determining what constitutes a private or local bill 'has been the source of difficulty in this state and in others.' Id. at 73. 303 N.W.2d at 631. Because of that difficulty, we rely primarily on the rationale the Soo Line court employed. Soo Line is the most recent supreme court decision to measure legislation against the private or local standard in art. IV, sec. 18. We should defer to the most recent pronouncement of our highest court rather than to earlier and possibly conflicting precedents. Purtell v. Tehan, 29 Wis.2d 631, 636, 139 N.W.2d 655, 658 (1966); Bruns Volkswagen, Inc. v. DILHR, 110 Wis.2d 319, 324, 328 N.W.2d 886, 889 (Ct.App. 1982).
The issue in the Soo Line case was whether the enactment of sec. 923(48)(a) of the 1977 budget review bill by ch. 418, Laws of 1977, violated Wis. Const. art. IV, sec. 18. Section 923(48)(a) prohibited the Department of Transportation from constructing an overhead structure at the intersection of State Trunk Highway 13 and the Soo Line Railroad, and directed the railroad and the department to establish an at-grade crossing, the cost to be paid from state appropriations 'as appropriate.'
The Soo Line court first reviewed its decisions addressing what is a private or local bill under Wis. Const. art. IV, sec. 18. The court characterized certain of its decisions as holding that a bill is local if it applies to a particular locality to the exclusion of others, quoting from Milwaukee County v. Isenring, 109 Wis. 9, 19-20, 85 N.W. 131, 135 (1901) () and State ex rel. Richter v. Chadbourne, 162 Wis. 410, 414, 156 N.W. 610, 611 (1916) (). Id. at 73-74, 303 N.W.2d at 631. For additional support, the Soo Line court cited Whitefish Bay v. Milwaukee County, 224 Wis. 373, 377, 271 N.W. 416, 418 (1937) (), and Estate of Bulewicz, 212 Wis. 426, 433-34, 249 N.W. 534, 536-37 (1933) ().
The Department of Transportation argued to the Soo Line court that the territorial definition of local bill was inapplicable. It noted the statewide public interest in highway safety and that sec. 923(48)(a) involved state-owned land, a highway. It relied on Monka v. State Conservation Comm., 202 Wis. 39, 46, 231 N.W. 273, 276 (1930), for the proposition that a bill is not local 'when the subject thereof is such that the state itself has an interest therein as proprietor, or as trustee, or in its governmental capacity, for the benefit or in the interest of the general public.'
In spite of the statewide interest and state-ownership of the land involved, the Soo Line court held that sec. 923(48)(a) was a private or local bill. It noted that the bill related to a specific point on a specific highway, and although many citizens of this and other states might drive on State Trunk Highway 13 or use the Soo Line, the bill directly and immediately affected a particular entity, the Soo Line railroad. The court found it difficult to conceive of a legislative enactment more particularly addressed to a specific geographical location or a specific entity. Because sec. 923(48)(a) was enacted as part of a bill that embraced many subjects and the title of ch. 418, Laws of 1977, gave no hint that the act regulated the crossing to which sec. 923(48)(a) applied, its enactment violated art. IV, sec. 18. 101 Wis.2d at 77-78, 303 N.W.2d 633.
We turn to the 1983 budget bill provisions relating to the proposed Menominee Valley prison site. Applying the rationale of the Soo Line court, we conclude that the prison site designation in sec. 953p is local, within the meaning of Wis. Const. art. IV, sec. 18.
Like the grade-crossing bill in the Soo Line case, sec. 953p of the 1983 budget bill relates to a specific geographical...
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