Outagamie County v. Smith

• Decision Date: 30 January 1968
• Parties: OUTAGAMIE COUNTY, a body corporate et al., Respondents, v. Dena A. SMITH, Individually and as State Treasurer of the State of Wisconsin et al., Appellants.
• Court: Wisconsin Supreme Court

Page 639

155 N.W.2d 639

38 Wis.2d 24

OUTAGAMIE COUNTY, a body corporate et al., Respondents, v. Dena A. SMITH, Individually and as State Treasurer of the State of Wisconsin et al., Appellants.

Supreme Court of Wisconsin.

Jan. 30, 1968.

Bronson C. LaFollette, Atty. Gen., Charles A. Bleck, Asst. Atty. Gen., Madison, for appellants.

A. W. Ponath, Corp. Counsel, Appleton, Stewart G. Honeck, Special Counsel for Outagamie County, Milwaukee, for respondents.

HEFFERNAN, Justice.

The threshold question is whether the action of the legislatively created site committee is reviewable at all by the circuit court. Or, to put it another way, does the judiciary have the jurisdiction to review the recommendation of the site committee and of the final selection made by the Governor, the Co-ordinating Committee for Higher Education, and the Building Commission.

It seems clear, at the outset, that the decisions of the State's chief executive are not reviewable under ch. 227, Stats., because the Governor's office is not an administrative agency within the terms of that portion of the statutes. Both plaintiffs and defendants herein acknowledge that no appeal procedure specifically applicable to review the action of the site committee or the Governor, the Co-ordinating Committee for Higher Education, and the Building Commission is spelled out by the statute. The defendants, however, contend that the site committee falls within the statutory definition of those agencies whose determinations may be reviewed. Sec. 227.01, Stats., defines sub. (1):

"Agency' measns any board, commission, committee, department or officer in the state government, except the governor or any military or judicial officer of this state.'

The defendants assert that the determinations were, therefore, reviewable under the Wisconsin Administrative Procedure Act and, as a consequence of plaintiffs' failure to file a petition for review within thirty days after the receipt of the site committee's recommendation, they were foreclosed from proceeding with this review. Doubtless, the site committee constitutes an agency as defined above. However, we find no justification in the statutes that would lead to the conclusion that the Administrative Procedure Act authorizes a review of the kind of action taken by the site committee. Sec. 227.15, Stats., provides:

'227.15 Judicial review; orders reviewable. Administrative decisions, which directly affect the legal rights, duties or privileges of any person, whether affirmative or negative in form, except the decisions of the department of taxation, the commissioner of banks and the commissioner of savings and loan associations, shall be subject to judicial review as provided in this chapter; but if specific statutory provisions require a petition for rehearing as a condition precedent, review shall be afforded only after such petition is filed and determined.'

It is apparent that the action of the site committee was advisory only. It is equally clear, though the action be denominated as a decision, which in itself is doubtful that it affected the 'legal rights, duties or privileges' of the plaintiffs only indirectly and not directly, as is required if the Court is to consider the action to be reviewable. It is the plain meaning of the statute under which the site committee was organized that its action was advisory only and the final decision was to be the accord reached by the Governor, the Co-ordinating Committee for Higher Education, and the Building Commission. This concurring action is the only decision in the sequence of events alleged that might have the consequence of directly affecting the legal rights of the plaintiffs. The decision was thus, in part at least, that of the Governor, which is beyond peradventure excluded from review under the procedures of ch. 227. This factor alone is sufficient to vitiate the argument of the Attorney General that the complainants' remedy was under ch. 227. Moreover, in the absence of an allegation of a constitutional usurpation, we decline to review a decision either made by the Governor or one in which he participates. The complainants herein have made no such claim. Accordingly, we decline to review per se the joint determination of the Governor, the Co-ordinating Committee for Higher Education, and the Building Commission.

However, it is within the province of the judiciary in a proper case to determine whether another agency of the government has properly performed its legislatively delegated function even though that function was a necessary antecedent to gubernatorial action. We are satisfied that this Court may examine the recommendation of the site committee for the purpose of determining its nature and to inquire into whether the exercise of its powers should be reviewed or limited by this Court.

As we have stated above, the site committee's conduct is not reviewable under the Administrative Procedure Act. The general rule was set forth in 1945, by Mr. Chief Justice Rosenberry, who stated in Clintonville Transfer Line v. Public Service Comm. (1945), 248 Wis. 59, 69, 21 N.W.2d 5, 11, that:

'If no appeal or comparable procedure is prescribed for review, none exists. In the absence of legislative authorization to review the facts, administrative determinations can be reviewed only by certiorari, in which only questions of law are raised.'

This rule, that the right of appeal is statutory and does not exist except when expressly given and cannot be extended to cases not within the statute, has been quoted with approval on numerous occasions. Town of Greenfield v. Joint County School Comm. etc. (1955), 27i Wis. 442, 447, 73 N.W.2d 580; City of Milwaukee v. Public Service Comm. (1960), 11 Wis.2d 111, 115, 104 N.W.2d 167.

However, concurrent with these decisions there developed the exception alluded to in the Clintonville Transfer Case, supra, permitting a review by certiorari in which only questions of law are raised. The recent case of State ex rel. Kaczkowski v. Board of Fire & Police Comm. of City of Milwaukee (1967), 33 Wis.2d 488, 500, 148 N.W.2d 44, 50, 149 N.W.2d 547, summarized the holdings of State ex rel. Ball v. McPhee (1959), 6 Wis.2d 190, 199, 94 N.W.2d 711; State ex rel. Wasilewski v. Board of School Directors of City of Milwaukee (1961), 14 Wis.2d 243, 111 N.W.2d 198; and State ex rel. Gudlin v. Civil Service Comm. of City of West Allis (1965), 27 Wis.2d 77, 133 N.W.2d 799, and concluded that they 'all stand for the rule that where there are no statutory provisions for judicial review the action of a board or commission may be reviewed by way of certiorari.' The trial court herein relied on Perkins v. Peacock (1953), 263 Wis. 644, 658, 58 N.W.2d 536, for the proposition that, even in cases where the statutory right to appeal is exclusive, nevertheless, there may be cases 'where such right of appeal would be inadequate for such purpose and certiorari might lie.' While we deem that Perkins is applicable only to those cases where a statutory appeal was provided but proved inadequate, nevertheless, we do consider it indicative of the consistent position of this Court--that certiorari will lie in the unusual case where either the statutory appeal is inadequate or the lack of the statutory right of appeal makes necessary the review of legal questions involved in the decisions of an administrative agency.

Accordingly, we conclude that the review of the legislatively created site committee is not barred merely because no statutory method of review was provided. It is established that such a review of certain legal issues can be

accomplished by certiorari. Was plaintiffs' action for

declaratory judgment appropriate as a substitute

for certiorari

Although certiorari may be appropriate to reach questions of law in reviewing the actions of an administrative agency, the plaintiffs' action is brought for declaratory judgment under the provisions of sec. 269.56, Stats., the Uniform Declaratory Judgments Act. We conclude that the remedy of declaratory judgment is procedurally available to these plaintiffs. Sec. 269,56(12) directs that the Uniform Declaratory Judgments Act is 'remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.' We said in the recent case, Ramme v. City of Madison (1967), 37 Wis.2d 102, 114, 154 N.W.2d 296, 302, 'The entire act is framed in broad terms. Liberal inclusion is specifically contemplated.' While we do not conclude that a declaratory judgment is a substitute for certiorari, nevertheless, we hold that in the instant action, where it seeks merely a resolution of legal issues, that it is an appropriate procedural device to bring them before the court. 1 Anderson, Actions for Declaratory Judgments, 2d, page 424, sec. 201, states:

'* * * where a public body acts entirely without its jurisdiction, the rule against collateral attack, on an order of a board or commission, does not apply and even though a writ of certiorari were available the remedy of a declaratory judgment is likewise apposite * * *.'

We conclude, therefore, that the action for declaratory judgment is

procedurally permissible. May there be judicial inquiry into

the propriety of the procedure used by a

legislatively created committee whose

function is advisory only

This Court has taken judicial notice of the fact that on June 13, 1966, the date on which this complaint was filed, the Building Commission did in fact release planning funds for the purpose of commencing the process of constructing a university at the Green Bay-Shorewood site. On January 8, 1968, the Building Commission authorized the construction of new buildings at two new university sites, one of which is in dispute herein, costing an estimated 12.8 million dollars. Classes at the new university are scheduled to begin in the fall of 1969.

Any legal action...