Summary
In Outagamie County v. Smith (1968), 38 Wis.2d 24, 155 N.W.2d 639, we examined the question of review by certiorari where no provision was made for a review of a decision of a board or a commission.
Summary of this case from Stacy v. Ashland County Dept. of Public WelfareOpinion
January 8, 1968. —
January 30, 1968.
APPEAL from an order of the circuit court for Dane county: EDWIN M. WILKIE, Circuit Judge. Reversed.
For the appellants the cause was argued by Charles A. Bleck, assistant attorney general, with whom on the briefs was Bronson C. La Follette, attorney general.
For the respondents there was a brief by A. W. Ponath of Appleton, corporation counsel, and Stewart G. Honeck of Milwaukee, special counsel for Outagamie county, and oral argument by Mr. Honeck.
This is an appeal from an order of the circuit court for Dane county overruling a demurrer to the plaintiffs' complaint for a declaratory judgment. The plaintiffs are Outagamie county and certain individuals, who are adult residents and taxpayers of Outagamie county, who claim that they are aggrieved by the failure of a special site committee which had been appointed, pursuant to statute, to recommend a site for a new university in northeastern Wisconsin in accordance with criteria which it had previously adopted after a public hearing. The legislature in 1965 by ch. 259, Laws of 1965, created sec. 39.024 (4), Stats. Insofar as that statute is pertinent to this appeal, it directed the Governor to:
". . . appoint a special committee consisting of the state architect, the state planning director, a representative of the board of regents of the university of Wisconsin and a representative of the state building commission to evaluate alternative sites for the new institutions according to criteria set by the committee and to report its recommended sites to the governor, the state building commission and the co-ordinating committee for higher education."
Pursuant to this enactment, the Governor appointed a special site committee to study and recommend locations for new collegiate institutions.
The complaint alleges that the committee held a public hearing on December 21, 1965, in Madison for the purpose of establishing criteria to govern the selection of the northeast campus location. Following this public hearing, tentative criteria previously drafted by the committee were amended, and "final" criteria were announced. Included in these criteria was a section denominated as Regional Area Criteria. The purpose of this section, as stated in the introduction to .the final criteria announcement, was to identify "the broad regional area in which the new collegiate institution will be located."
The Regional Area Criteria included, in addition to other areas: All parts of Brown county; all parts of Outagamie county, "and extensions into adjacent counties of any major metropolitan complex in one of the above counties." These criteria as amended were, on January 6, 1966, adopted as "final" criteria, and copies were sent to all interested persons who had appeared at the public hearing. A letter signed by Glen E. Pommerening, chairman of the site committee, accompanied these criteria. The letter stated:
"After the public hearings, the Site Selection Committee on January 6th formally adopted Final Criteria, which will be used to select the site of the two campuses."
Plaintiffs allege that subsequent to January 6th the site committee met in secret session on one or more occasions and, without notice to interested parties, including the plaintiffs, revised and changed the criteria and that the principal effect of this revision was to eliminate from the Regional Area Criteria that portion of Outagamie county in the metropolitan area of Neenah and Menasha which had theretofore been included in the "extensions into adjacent counties of any major metropolitan complex."
Thereafter, on February 25, 1966, the committee met and adopted a written recommendation selecting the Green Bay-Shorewood location, which the plaintiffs allege does not meet the standards established by the criteria of January 6th. Subsequently, the recommendations of the committee were approved by the Governor, the Co-ordinating Committee for Higher Education, and the Building Commission. The plaintiffs allege that they were advised that the Building Commission would meet on June 13, 1966, for the purpose of releasing funds to be used for the planning of the new institution.
Plaintiffs allege that, prior to the commencement of this action, notice was given to each of the defendants that the release or expenditure of the funds in the manner and for the purpose proposed would be illegal and in excess of their statutory authority. This conclusion is based upon the allegation that the committee failed to carry out the mandate of the legislature in that it neglected to evaluate the various sites according to the criteria that it had lawfully established on January 6th and that it attempted to change the criteria in secret sessions in contravention of the antisecrecy statute, sec. 14.90, Stats.
" 14.90 Open meetings of governmental bodies. (1) In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of the state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental affairs and the transaction of governmental business.
"(2) To implement and insure the public policy herein expressed, all meetings of all state and local governing and administrative bodies, boards, commissions, committees and agencies, including municipal and quasi-municipal corporations, unless otherwise expressly provided by law, shall be publicly held and open to all citizens at all times, except as hereinafter provided. No formal action of any kind, except as provided in sub. (3), shall be introduced, deliberated upon or adopted at any closed session or closed meeting of any such body, or at any reconvened open session during the same calendar day following a closed session. No adjournment of a public meeting into a closed session shall be made without public announcement of the general nature of the business to be considered at such closed session, and no other business shall be taken up at such closed session.
"(3) Nothing herein contained shall prevent executive or closed sessions for purposes of:
"(a) Deliberating after judicial or quasi-judicial trial or hearing;
"(b) Considering employment, dismissal, promotion, demotion, compensation, licensing or discipline of any public employe or person licensed by a state board or commission or the investigation of charges against such person, unless an open meeting is requested by the employe or person charged, investigated or otherwise under discussion;
"(c) Probation, parole, crime detection and prevention;
"(d) Deliberating or negotiating on the purchasing of public property, the investing of public funds, or conducting other public business which for competitive or bargaining reasons require closed sessions;
"(e) Financial, medical, social or personal histories and disciplinary data which may unduly damage reputations;
"(f) Conferences between any local government or committee thereof, or administrative body, and its attorney concerning the legal rights and duties of such agency with regard to matters within its jurisdiction."
The individual plaintiffs allege their interest on the basis that they are taxpayers and parents of children who eventually will be eligible to attend the proposed institution. The county alleges that its interest arises because of monies spent for the purpose of presenting facts and materials to the committee and in securing options for real estate. The plaintiffs by their action for declaratory judgment have asked that the action of the committee and the acceptance and approval of the site by the Building Commission be declared null and void. They, represented by the attorney general, have demurred to the complaint on the basis that the circuit court lacks jurisdiction to exercise superintending powers over administrative agencies independently of the right of appeal granted by ch. 227, Stats., and that the action was not commenced within the time limited by sec. 227.16. In addition, the demurrer was based upon the failure of the plaintiffs to state facts sufficient to constitute a cause of action. The circuit court concluded that the grievances in the complaint were reviewable by declaratory judgment and that the facts alleged were sufficient to state a cause of action.
The defendants are Dena A. Smith, State Treasurer, George C. Kaiser, Commissioner of the Department of Administration, Wayne McGown, Director of Bureau of Management, Francis Powers, Director of Bureau of Purchases and Services, James E. Galbraith, State Architect, Walter K. Johnson, State Planner, and Warren Knowles, Frank Nikolay, Jerris Leonard, Chester Dempsey, Frank Christopherson, Glen Pommerening, Angelo Greco, members of the Building Commission.
Subsequent to commencement of this action, two members of the Building Commission, Frank Nikolay and Angelo Greco were replaced by Harvey Gee and Robert Kordus.
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 Coordinating 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' means 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, 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. Greenfield v. Joint County School Comm. (1955), 271 Wis. 442, 447, 73 N.W.2d 580; 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. Fire Police Comm. (1967), 33 Wis.2d 488, 500, 148 N.W.2d 44, 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 (1961), 14 Wis.2d 243, 111 N.W.2d 198; and State ex rel. Gudlin v. Civil Service Comm. (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. Madison (1967), 37 Wis.2d 102, 114, 154 N.W.2d 296, "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, p. 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 that has as its end the circumscription of legislative power is viewed charily by this court. In Ashwaubenon v. State Highway Comm. (1962), 17 Wis.2d 120, 131, 115 N.W.2d 498, we referred to the "wide berth to be given to administrative decisions of a legislative character." This is the expression of a fundamental principle of constitutional law.
Moreover, it is discretionary with a court whether or not it will render or enter a declaratory judgment "where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding." Sec. 269.56 (6), Stats.
22 Am. Jur. 2d, Declaratory Judgments, p. 852, sec. 13, points out that a declaration of rights "should not be rendered if it will not finally settle an actual controversy or be of some practical help in ending the controversy or stabilizing disputed legal relations." The same paragraph (p. 853) also points out that there is authority to a stronger effect and that is "that a court may not grant declaratory relief unless it is convinced that its judgment will end the litigation and fix the rights of the parties."
Herein, all the plaintiffs seek is a declaration that the site committee failed to carry out the mandate of the legislature by neglecting to evaluate various sites according to its own established criteria and that it unlawfully changed the final criteria as a result of a meeting in secret session contrary to sec. 14.90, Stats., the antisecrecy law. No further relief is sought by the complaint. Counsel during oral argument was questioned in regard to what supplemental relief might be afforded to implement a declaration of rights, but he persistently refrained from suggesting any specifics. None that might remedy the situation in which the plaintiffs claim to find themselves are conceivably to be granted by any court. If such is the case, it would then be an abuse of discretion to enter a declaratory judgment which would not settle the rights of the parties or terminate litigation. Under any proceeding brought, a court should not enter judgment where the judgment would result in a declaration of rights that either should not or could not be enforced. We have heretofore defined a moot case as:
". . . one which seeks to determine an abstract question which does not rest upon existing facts or rights, or which seeks a judgment in a pretended controversy when in reality there is none, or one which seeks a decision in advance about a right before it has actually been asserted or contested, or a judgment upon some matter which when rendered for any cause cannot have any practical legal effect upon the existing controversy."
Wisconsin Employment Relations Board v. Allis-Chalmers Workers' Union (1948), 252 Wis. 436, 440, 441, 31 N.W.2d 772, 32 N.W.2d 190; State v. Zisch (1943), 243 Wis. 175, 9 N.W.2d 625; Thoenig v. Adams (1940), 236 Wis. 319, 294 N.W. 826.
We conclude that any declaration of rights that might result from the defendants' complaint for declaratory judgment could only result in a request for supplementary remedies which this court would refuse to grant. Accordingly, a declaration of rights against either the state administrative bodies concerned or the individuals could not have the effect of terminating the controversy. As long ago as 1860, Mr. Justice COLE in Bushnell v. Beloit, 10 Wis. 155 (*195), 168, 169 (*225), stated:
"We suppose it to be a well accepted political principle that the constitution of the state is to be regarded not as a grant of power, but rather as a limitation upon the powers of the legislature, and that it is competent for the legislature to exercise all legislative power not forbidden by the constitution or delegated to the general government, or prohibited by the constitution of the United States."
It is undoubtedly true that the location of a campus site for an institution of higher education is within the province of the legislature, and this is acknowledged by the plaintiffs. Had the legislature itself selected the Green Bay-Shorewood location, no litigant would be audacious enough to question it in a judicial review. However, the legislature chose to delegate its authority to an ad hoc committee to act in the legislative function of investigating and advising. This power it undoubtedly has. Cutts v. Department of Public Welfare (1957), 1 Wis.2d 408, 84 N.W.2d 102.
Had the legislature seen fit to question the recommendation of the committee or the subsequent approval of the Governor, the Co-ordinating Committee for Higher Education, and the Building Commission, it could have done so. Yet subsequent to that action, the legislature has passed ch. 27 of the Laws of 1967, which would authorize any Wisconsin county to acquire and transfer property to the state for the location of these higher institutions of learning. Moreover, it refused to pass a bill (Assembly Bill 72, 1967) which would have reviewed the recommendation of the site committee and placed the university at the intersection of Highway 41 and State Trunk 54, a location that apparently would be more suitable to the desires of the complainants herein.
The defendants conclude that whatever errors might have existed in the procedures of the site committee and the officers who ratified its conduct thus were cured by subsequent legislative action. While a strong case for ratification might be made on these facts, we conclude that reliance on legislative ratification is unnecessary to reach the decision that judicial intervention in this controversy would be prohibited by the constitutional separation of powers. This court is without authority to intermeddle in matters of legislative concern. It is a well-settled principle of Wisconsin constitutional law that one branch of the government has no authority to compel a co-ordinate branch to perform functions of judgment and discretion that are lawfully delegated to it by the constitution. The only power possessed by this court is to prevent any actions in excess of the authority vested in it by the constitution. State ex rel. Martin v. Zimmerman (1946), 249 Wis. 101, 23 N.W.2d 610.
While State ex rel. Martin v. Zimmerman has been overruled by State ex rel. Reynolds v. Zimmerman (1964), 22 Wis.2d 544, 126 N.W.2d 551, insofar as it relates to the authority of the court to compel the legislature to perform a constitutional duty, that of reapportioning legislative districts, we nevertheless consider the language appropriate insofar as it applies to the exercise of acts within the legislative function.
Sec. 39.024 (4) (f), Stats., which creates the site committee, is a part of ch. 259 of the Laws of 1965. The first section of that chapter states that:
"It is the legislative intent by the provisions of . . . 39.024 (4) of the statutes that it be the established state's policy that educational opportunities be spread as broadly throughout the state as is educationally and economically feasible. This policy recognizes that the expansion of educational opportunities to new geographical areas of the state eases the student's financial burden. To implement this policy, section 39.024 (4) of the statutes authorizes the creation of new collegiate institutions . . . ."
Thus, the preamble to the very legislation with which we are concerned leaves no doubt that the determination to be made by the site committee was for the purpose of enunciating and establishing more specifically the policy standards broadly outlined by the legislature. In re City of Beloit (1968), 37 Wis.2d 637, 155 N.W.2d 633, whose mandate comes down on the same date as this case, we had reason to consider whether the determination of "public interest" was a proper function of the courts. We therein held that it was not. Mr. Chief Justice HALLOWS, speaking for the court, said:
"What is `desirable' or `advisable' or `ought to be' is a question of policy, not a question of fact. What is `necessary' or what is `in the best interest' is not a fact and its determination by the judiciary is an exercise of legislative power . . . ."
While the Beloit Case involved a delegation of legislative power to the courts in respect to annexations, we consider the rationale of the court therein germane to the instant case. The site committee was directed to formulate criteria for locating a university in accordance with vaguely defined public interest policy considerations formulated by the legislature. This is clearly an exercise of the legislative function with which the courts should not and will not tamper.
This court will not interfere with the conduct of legislative affairs in the absence of a constitutional mandate to do so or unless either its procedure or end result constitutes a deprivation of constitutionally guaranteed rights. Short of such deprivations which give this court jurisdiction, recourse against legislative errors, nonfeasance, or questionable procedure is by political action only.
We are satisfied from a review of the record, however, that the plaintiffs were not dealt with with complete fairness. They placed reliance upon what they assumed to be the good faith representations of the site committee and expended substantial sums of money, and then, without notice, they allege that the criteria were changed. However, granting the comity that we must to a coordinate branch of the state government, no recourse is available in the courts. The grievances of which they complain did not rise to the dignity of an invasion of a constitutional right and as was stated in the case of State ex rel. Elfers v. Olson (1965), 26 Wis.2d 422, 132 N.W.2d 526, and as we may appropriately say here, "this decision, simply, is none of our business."
We should point out, however, that, while we are obliged to accept such ultimate facts as are properly pleaded in a complaint when it is before us on demurrer, the grievances alleged do not appear to have quite the merit that the plaintiffs contend. The principal complaint of the plaintiffs is that the Regional Area Criteria were improperly amended. Yet it is significant to note the announced purpose of the criteria as set forth in the introduction to the document prepared by the site committee and appended to the complaint. As therein stated, the purpose of the Regional Area Criteria was to identify "the broad regional area in which the new collegiate institution will be located." (Emphasis supplied.) In our review of the record, the site as finally selected was within the area described in the "final" criteria, which the plaintiff's acknowledge are lawful. Admittedly, references in the same document refer to the Regional Area Criteria not as areas in which the site is to be located but rather as areas "to be served." In view of these contradictory statements, which have not been reconciled by the plaintiffs, we would, as a matter of policy uniformly adopted by courts, use that interpretation which would sustain the legislative action. As so viewed, the site as selected was within the criteria that the plaintiffs acknowledge are proper. We confine, however, the ratio decidendi of this opinion to the premise that any remedy that might be afforded the plaintiffs would constitute an invasion of the legislative prerogative by the courts.
Accordingly, the petition for declaratory judgment should be dismissed as affording no remedy which would terminate the controversy. To grant a declaration of rights in the present instance would constitute an abuse of discretion.
By the Court. — Judgment reversed and the complaint is dismissed.
WILKIE, J., took no part.