Silver Lake Sanitary Dist. v. DNR, 99-0620.

• Decision Date: 09 December 1999
• Docket Number: No. 99-0620.,99-0620.
• Parties: SILVER LAKE SANITARY DISTRICT, Petitioner-Appellant, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

232 Wis.2d 217

2000 WI App 19

607 N.W.2d 50

SILVER LAKE SANITARY DISTRICT, Petitioner-Appellant, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent-Respondent.¹

No. 99-0620.

Court of Appeals of Wisconsin.

Oral argument September 21, 1999.

Decided December 9, 1999.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of H. Stanley Riffle of Arenz, Molter, Macy & Riffle, S.C. of Waukesha.

On behalf of the respondent-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Joanne F. Kloppenburg, assistant attorney general.

Before Eich, Vergeront and Roggensack, JJ.

¶ 1. ROGGENSACK, J.

Silver Lake Sanitary District appeals from two orders of the circuit court determining that the Department of Natural Resources (DNR) had standing to challenge the constitutionality of §§ 30.2037 and 30.103, STATS., and also that these statutes were unconstitutional. Because we conclude that the DNR does not have standing to challenge the constitutionality of these statutes, we reverse both orders and remand with instructions to dismiss the DNR's counterclaims.

BACKGROUND

¶ 2. Silver Lake sought judicial review of the DNR's decision to set the Ordinary High Water Mark (OHWM) for Big Silver Lake at 868.9 feet above mean sea level. The OHWM of a lake is the point on the banks or the shore to which "the presence and action of water is so continuous as to have a distinct mark either by erosion, destruction of terrestrial vegetation or other easily recognized characteristics." WIS. ADMIN. CODE § NR 320.03(4). The OHWM is an important boundary for riparian owners because it establishes the extent of state ownership in the lake, which impacts the public's right to use the lake as well as the riparian owners' rights in the land above it.

¶ 3. While Silver Lake's litigation was pending, the legislature enacted § 30.2037, STATS. This statute set the OHWM of Big Silver Lake at 867 feet above mean sea level.² As a result of the passage of this law, the DNR filed a counterclaim in Silver Lake's ch. 227 proceeding, where the DNR sought a declaratory judgment that § 30.2037 is unconstitutional. The DNR challenged § 30.2037 on the grounds that: (1) it is a local bill in a multiple subject bill and therefore invalid under Article IV, § 18 of the Wisconsin Constitution; (2) it violates the public trust doctrine; (3) it violates the equal protection clause; and (4) it unlawfully encroaches on the authority of the executive branch of state government. The circuit court granted the DNR's motion for a declaratory judgment, holding both that the DNR had standing to challenge the constitutionality of the law and that the law was unconstitutional as a local bill in a multiple subject bill.

¶ 4. Several months later, the legislature enacted § 30.103, STATS. This statute permits a sanitary district to set the OHWM of any lake that is wholly within its district, and it prohibits the DNR from setting a different level.³ The DNR filed a second counterclaim in response to the legislature's enactment of § 30.103, seeking a declaratory judgment that § 30.103 is also unconstitutional. The circuit court agreed with the DNR again and held that § 30.103 is an unconstitutional violation of the public trust doctrine and the forever-free clause of the Wisconsin Constitution.

¶ 5. Silver Lake filed a petition for leave to appeal both orders of the circuit court, pursuant to § 808.03(2)(a) and (c), STATS., and we granted it leave to appeal.

DISCUSSION

Standard of Review.

¶ 6. Whether a plaintiff has standing to bring a particular issue before a court is a question of law, which we decide independently of a circuit court's decision. See Le Fevre v. Schrieber, 167 Wis. 2d 733, 736, 482 N.W.2d 904, 905-06 (1992)

.

Standing.

¶ 7. Silver Lake argues that the circuit court erred in concluding that the DNR had standing to challenge the constitutionality of §§ 30.2037 and 30.103, STATS., because a state agency cannot challenge the constitutionality of a statute. See Fulton Found. v. Department of Taxation, 13 Wis. 2d 1, 11, 108 N.W.2d 312, 317 (1961)

. The DNR concedes that generally, a state agency cannot attack a statute's constitutionality; however, it argues that, in limited circumstances, a state agency can challenge a statute's constitutionality if it presents an issue of great public concern. We conclude, however, that the great public concern exception applies only to cases where a private litigant and a creature of the state are involved, and not to suits limited to creatures of the state.

¶ 8. Agencies, municipal corporations and quasimunicipal corporations are all creatures of the state⁴ and their powers are only those ascribed to them by the state. They have no standing to challenge the actions of their creator, such as drawing into question the constitutionality of legislation the state has enacted. See Dane County v. Health & Soc. Servs. Dep't, 79 Wis. 2d 323, 330, 255 N.W.2d 539, 543 (1977)

(citing City of Marshfield v. Cameron, 24 Wis. 2d 56, 63, 127 N.W.2d 809, 813 (1964)). However, this no-standing rule is not absolute, and may be modified, if a private litigant is part of the lawsuit and certain conditions are met. As the supreme court explained:

The no-standing rule is subject to certain exceptions which apply only to cases between private litigants and a municipality or state agency and not to suits between agencies of the state, or between an agency or municipal corporation and the state.

Dane County, 79 Wis. 2d at 331, 255 N.W.2d at 544 (citing City of Kenosha v. State, 35 Wis. 2d 317, 331, 151 N.W.2d 36, 43 (1967)); see also State ex rel. La Crosse v. Rothwell, 25 Wis. 2d 228, 233, 130 N.W.2d 806, 808-09 (1964)

. The exceptions to the no-standing rule which a circuit court may apply when a private litigant is a party are available: "(1) If it is the agency's official duty to [question the constitutionality of the statute], or the agency will be personally affected if it fails to do so and the statute is held invalid, and (2) if the issue is of `great public concern.'" Rothwell, 25 Wis. 2d at 233,

130 N.W.2d at 808-09 (citation omitted).

¶ 9. The "great public concern" exception, which the DNR urges us to apply here, was first expressed in Fulton, where private litigants were parties. There, the Department of Taxation attempted to argue that a retroactive feature of the gift tax exemption was unconstitutional. See Fulton, 13 Wis. 2d at 9,

108 N.W.2d at 316. The circuit court determined that the department did not have standing to attack that statute's constitutionality and the department appealed. See id. at 10, 108 N.W.2d at 316. The supreme court agreed with the circuit court that generally, a state agency does not have standing. However, citing a case from Washington and one from Minnesota, the court noted that these states permitted a public officer to raise a constitutional issue where the question was one "affected with a public interest." See id. at 12, 108 N.W.2d at 318. Utilizing this concept, the court permitted the department to challenge the statute's constitutionality because it concluded the issue was one of great public concern. See id. at 13, 108 N.W.2d at 318.

¶ 10. In Columbia County v. Board of Trustees of the Wisconsin Retirement Fund, 17 Wis. 2d 310, 116 N.W.2d 142 (1962), the supreme court further elaborated on the great public concern exception and clarified that its application required the presence of private litigants whose rights were affected by the statute being challenged. There, eight counties, along with a taxpayer from Columbia County, sought a declaratory judgment that a statute, which required all counties to join the Wisconsin Retirement Fund, was unconstitutional. See id. at 320, 116 N.W.2d at 148. The supreme court stated that a county, as an arm of the state, had "no right to question the constitutionality of the acts of its superior and creator or of another arm or governmental agency of the state." See id. at 317, 116 N.W.2d at 146. The court explained that in only two limited circumstances had it previously allowed an arm of the state to challenge a statute's constitutionality; and it noted that those were "exceptional" cases involving issues of great public concern. See id. at 317-18, 116 N.W.2d at 146. In recognizing the great public concern exception, however, the court expressed the limited circumstances in which a circuit court could choose to apply it:

It will be noted in both these cases, neither the city nor the state agency was suing the state of Wisconsin or another state agency. We are not disposed to extend the exception to the general rule to cover suits between two agencies of the state government or between an arm of the government and the state itself.

Id. Applying that rule, the court held that the eight counties could not question the constitutionality of the statute, as against the Retirement Fund; however, the individual taxpayer whose interests were affected by the statute could do so. See id. at 319-20, 116 N.W.2d at 147.

¶ 11. Additionally, just two years later, the supreme court expressly declared that the great public concern exception applied only in cases where private litigants were parties. See Rothwell, 25 Wis. 2d at 233,

130 N.W.2d at 809. There, the City of La Crosse sued the superintendent of public instruction, alleging the unconstitutionality of a statute which mandated that all territory within the state be within school districts operating high schools. The superintendent argued that the City did not have standing to raise the issue. The City countered that the statute bore upon an issue of great public concern. See id. Citing Columbia County, the supreme court held that the great public concern exception applied "only to cases between private litigants and a municipality or state agency and not to suits between agencies of the state, or between an agency or municipal corporation and the...