*1 FOUNDATION, RELIGION FROM FREEDOM Hakeem, Kenneth Dr. INC., Gaylor, Michael Ann Threinen, Barker, Fuller Taubert, Constance Dan Plaintiffs-Respondents,†

v. THOMPSON, the State of Governor of Tommy G. Klauiser, Secretary of the Wisconsin, R. James Administration, Defendants- Department Wisconsin Appellants. Appeals Court April 1991. Decided Submitted on No. 90-2083. briefs September 1991. 318.) (Also reported in 476 to review denied. Petition † *3 defendants-appellants the cause was sub- For the Hanaway, attorney J. briefs of Donald mitted on the F. Doyle, attorney general E. and general, James III, Creeron, attorney general. Thomas assistant the cause was submit- plaintiffs-respondent For the La Follette on the briefs of Bronson C. of Madison. ted C.J., Eich, Gartzke, P.J., Dykman, J. and Before DYKMAÑ, brought chal-, J. Plaintiffs an action 20.505(1)(fm), (1989),1 $100,000 leg- lenging sec. Stats. 20.505(l)(fm), (1989), provided: Section Stats. college grant. St. Norbert The amounts in the schedule for the department provide grant planning to St. Norbert for of to an international center. 501p, provided for Section 1989 Wis. Act 31. The schedule an violating College, Norbert to St. islative of the First Amendment of the clause establishment I, of section and article Constitution2 United States on the Granting judgment Constitution.3 the Wisconsin 20.505(1)(fm) uncon- sec. court found the tried pleadings, erred trial court conclude the on its face. We stitutional and, therefore, pleadings on the judgment in granting consistent proceedings for further and remand reverse opinion. this with BACKGROUND

I. (defend- the officials against brought Plaintiffs suit 20.505(l)(fm), Stats. ants) sec. administer who Plaintiffs relief. declaratory injunctive and seeking religious establish- College is a St. Norbert alleged that 195,1989 $100,000. Section Wis. Act 31. Section appropriation of 501q act and 20.505(1) (fm) repealed by of the same sec. was See secs. 3203(l)(dt), Wis. 1,1990. 501q July sunsetted Act 31. Constitution United States Amendment

2The First provides: relig- respecting of Congress establishment law an shall make no thereof; abridging

ion, freedom prohibiting or exercise the free people peaceably right press; to speech, or the or of grievances. assemble, petition a redress of Government for to I, Constitution Wisconsin 3Article section provides: according worship Almighty to right every person God to any infringed; nor shall never be shall dictates of conscience worship, any attend, support place of compelled person erect or *4 consent; any any ministry, control nor shall without maintain or to with, permitted, rights or of, be of conscience or interferences any religious or given establishments any preference law to be treasury money any worship; drawn from nor shall modes of societies, theological religious or the benefit of for seminaries. in operated teachings

ment accordance with the 20.505(1)(fm) Church and that sec. vio- Roman Catholic of the First Amendment lated the establishment clause I, Constitution. and article section 18 the Wisconsin order, temporary restraining Plaintiffs also moved for a to St. enjoining delivering defendants from College. Norbert expedited briefing parties stipulated

The to an addition, plaintiffs' In schedule. defendants answered complaint. The trial court construed the action amended pleadings4 granted judg- one on the judgment for appeal. in plaintiffs' ment favor. Defendants why 4It is unclear from the record the trial court issued a party judgment. only judgment. Neither for a The final moved temporary restraining for order. motion made was that, Apparently, parties agreed following expedited issue, briefing, judgment although they disagreed would on its summary judgment appropriate form. Defendants contended was plaintiffs presented pleadings" because had outside the "matters brief-in-chief, (never-filed) converting in their thus motion judgment pleadings summary judgment for on the to one for 802.06(3), under sec. Stats. Plaintiffs countered that the motion judgment pleadings only was one for on the because the matter brief-in-chief, pleadings, submitted their not contained in their legislative drafting was a note from the record sec. (1989). 20.505(l)(fm), Stats.

The trial court concluded that the note had not been 802.06(3), "presented" meaning to the court within the of sec. Stats., provided support plaintiffs' because it had not been but, rather, request complaint to rebut the defendants' result, judicial agree court take notice of the note. We with this but for a different reason. phrase pleadings" "matters outside the should not be broadly history, legislative

read so so as to include items of which evidentiary do not concern facts and which could be introduced supporting without affidavits.

II. STANDARD OF REVIEW essentially "sum- judgment pleadings A on the is mary supporting minus and other judgment affidavits 223, 144 Altenberg, v. 2d Schuster Wis. documents." 159, 228, (1988) & (quoting 424 161 Clausen N.W.2d Lowe, The Rules Civil Procedure New Wisconsin of 801-803, 1, (1976)). Marq. Chapters L. Rev. 55-56 Thus, apply steps summary judgment first two we the methodology judgment determine on whether Plat, appropriate. is See In re Cherokee Park pleadings 115-16, 580, (Ct. 112, 2d 334 N.W.2d 582-83 113 Wis. 1983). complaint first to deter- App. We examine Id. turn mine whether a claim has been stated. We then a mate- responsive pleadings to ascertain whether to the Schuster, 228,424 144 Wis. factual issue exists. 2d at rial complaint If to state a at 161. is sufficient pleadings raise no material responsive claim and the fact, pleadings appropriate. on judgment issues of be pleadings Id. on the should judgment Whether novo. of law we review de question is a which granted See id.

III. OF RELIGION ESTABLISHMENT sufficiency legal plaintiffs' We first examine the this mindful the fact that at complaint, amended reason- pleaded plaintiff, "the facts and all stage, therefrom, v. as Prah accepted true." able inferences 223, 229, Maretti, 108 Wis. 2d 321 N.W.2d (citation omitted). (1982) allege St. Nor- Plaintiffs that a not-for- College religious college organized is a bert corporation Chapter under Stats. Plaintiffs profit incorporation allege the articles of further (1) operated shall provide: college philosophy, theology, "within context of other [and] Church"; Roman teachings and doctrines of the Catholic (2) corporation that the sole shareholder of the is a non- *6 profit corporation registered as the "Premonstratensian Fathers"; (3) that the board of directors of St. Norbert College appointed by the shall Premonstratensian Fathers; (4) incorporation only the articles of may repealed by be amended or the Premonstratensian Finally, plaintiffs allege Fathers. the that each member of the Premonstratensian Fathers' board of directors is a clergy. member of the Roman Catholic plaintiffs' To determine whether amended com- claim, plaint states a we turn to cases interpreting the establishment clause of the first amendment. The Supreme consistently United States Court has followed Kurtzman, Lemon v. three-part test articulated 403 U.S. 602 to determine governmental whether aid offends the establishment clause:

First, legislative pur- must statute have secular pose; second, principal primary its effect must be one that religion neither advances nor inhibits . . . finally, gov- the statute must not foster "an excessive entanglement religion." ernment with Id. at 612-13 (citations omitted). The statute is valid if Aguillard, meets all three tests. See Edwards v. only it 578, (1987). 482 U.S. 583 Supreme

The Wisconsin applied Court has Supreme United States interpretation Court's requirements I, of the establishment clause to article 18, of the Wisconsin Constitution. See State ex section rel. Wisconsin Lindner, Health Facilities Auth. v. 91 145, 163-64, Wis. State (1979); 2d 280 N.W.2d 783 Reuter, ex rel. Warren v. 44 201, 226-27, Wis. 2d 170

742 (1969). Consequently, employ we 801-02 v. Kurtzman test to determine three-part Lemon law violates either constitutional specific whether a state 163-64, Lindner, See Wis. 2d at 280 provision. 91 N.W.2d at 783. applied Supreme United Court has States universi- government colleges

Lemon aid to test Richardson, Tilton v. ties occasions. See 403 on several McNair, (1973); (1971); U.S. Hunt v. 413 U.S. 734 Maryland, v. Board Works U.S. Roemer Pub. Hunt, (1976). In examined a state statute the Court for issuance of bonds the construction allowing revenue specified facilities. Id. at 736-37. The statute projects "any facility not involve the bond could Id. at used used for instruction." 736. or to be sectarian under upheld The Hunt Court statute second, *7 effect," "primary In applying Lemon test. however, test, Lemon the Court added the prong of the refinement: following normally thought primary may to have a

Aid advancing an insti- religion when it flows to effect of pervasive sub- religion is so that a tution which in the portion of functions are subsumed stantial its specifically relig- it funds a religious mission when substantially activity in secular an otherwise ious setting. v.

Hunt, 743; State ex rel. Warren Nus 413 U.S. at see (1974).5 325, 577, baum, 219 583 2d 64 Wis. Supreme has that: Court observed 5The Wisconsin involv- Roemer-Hunt-Tilton In line of decisions contrast to universities, generally ing colleges held that ele- the Court has and See, e.g., secondary pervasively mentary sectarian. and schools Pittenger, (1975); Public Educa- Committee Meek v. U.S. 349 for Nyquist, Public (1973); Levitt Committee tion v. 413 U.S. 756 v. for Education, (1973). 413 U.S. 472 The basis this distinction "(1) requires go Hunt therefore that no state aid at all so 'pervasively institutions that are sectarian' that secu- ones, separated lar activities cannot be from sectarian (2) out, if separated and that secular activities can be Roemer, they may be alone funded." 426 U.S. at 755. complaint alleges Plaintiffs' will grant "vio- late . . . the First Amendment." allega- Inherent this charge tion is the offends one or more of three-part the factors of the Lemon u. Kurtzman test. legislature We first whether the was motivated examine 20.505(l)(fm), (1989), in enacting sec. legiti- Stats. Lemon, purpose. mate secular U.S. at 612. 20.505(1)(fm), . Section Stats. states that the statutory grant "planning is for of an international that, center." Other than legislative purpose for funding specified.6 the center is not The trial court cor- very

recognition purpose many elementary secondary that the provide integrated schools is to an secular and education. Lindner, 156-57, 91 Wis. 2d at 280 N.W.2d at 779-80. rely entry drafting

6Defendants on a in the record of sec. 501p, stating: 1989 Wis. Act provide special appropriation This motion would to the Department $100,000 pro- of Administration of GPR in 1989-90 to planning grant College College's pro- vide a to St. Norbert for the posed College plan- International Center. The has indicated that the (1) $25,000 ing grant would be used as follows: would be for the costs Center; (b) $25,000 planning potential conferences for users of the funding faculty for for consultants to meet with to work on identifi- materials, equipment program cation of reference services and *8 Center; (c) $50,000 funding curriculum for the new for an archi- engineering prepare program firm tect and an architectural design provide schematic of the Center and a cost estimate of construction. 20.505(l)(fm), entry specify Like sec. Stats. this does not proposed whether the curriculum of the will international center the statute "does not contain a restric- rectly noted that 'religious use' of the funds and contains against tion interpreting public purpose no to aid declaration plain- statute." conclude that purpose behind the We grant raises a inference that has a complaint tiffs' purpose. sectarian

Similarly, complaint that raises we conclude concerning the second Lemon fac- questions of fact primary grant imper- effect of the is tor —whether Lemon, missible. 403 U.S. at 612. These include whether solely will be to fund secular activities and grant used College "pervasively whether St. Norbert is sectarian" so aid, permissible. no state is See designated, however Roemer, complaint 426 U.S. at 755. We conclude the 20.505(l)(m), sufficient to state a claim that sec. Stats. (1989), violates the establishment clause.

Defendants' answer admits the existence of the arti- Defendants incorporation College. cles of of St. Norbert however, "day-to-day operations allege, now conducted a Board of Trustees rather college are thirty than a Board of Directors and that no more than of Trustees can be Norbertines." percent of the Board is a deny College that St. Norbert Finally, defendants meaning of article establishment" within the "religious I, the Wisconsin Constitution. section issues of genuine We conclude this answer raises fact, purpose disputed namely, whether the sectarian; the international secular or whether was solely purposes; and be used for secular center is to relig- with College permeated is so whether St. Norbert separated from sec- secular activities cannot be ion that purpose of the center is or whether the include activities purely secular. *9 Roemer, questions These 426 U.S. at 755.

tarian ones. which cannot be of fact and law mixed issues present evidentiary development. further decided without trial court erred conclude that Accordingly, we 20.505(l)(m), unconstitutional Stats. sec. finding on its face. reversed and cause

By Judgment the Court. — remanded with instructions. (dissenting). In

EICH, this case the trial C.J. analysis applicable painstaking of the court undertook a as follows: case law and concluded proposition foregoing stand for the The cases upheld and Supreme Court has Wisconsin [t]he uphold specific grants one-time to named would higher where institutions of education church-related manifest, public purpose grant is where place are sufficient controls to monitor there (or monitoring expenditure funds where is unnecessary proper expenditures), to insure sufficiently grantee insulated from the where the university separate to be considered a church-related entity .... authorizing

An statute examination question grant in shows that it is unconstitutional on face, beyond its a reasonable doubt. None of the safe- guards which have enabled other statutes to with- present. challenges grants . . . to similar stand upheld appropria- Each of the . . . cases which such comprehensive tions contained either statements of legislative purpose determining intent and to aid purpose statutory against relig- secular restrictions . ious use . .. so in

Not the case at bar. College is available to St. Norbert not institution, any contains no restrictions on other *10 question, in and contains no the use of the funds public purpose give guidance in of to declaration interpreting the rationale behind the statute. The only language evidence available is the of the statute operation organization itself the and of the col- and lege . . ..

Unfortunately language of the [the statute] any light on of not shed what kind an interna- do[es] is, being planned, purpose tional center is what its operation, who will benefit from its construction and it, operate composi- manage who will and is the what Directors, any, they if tion of the Board of and how selected, operated it will be under the whether corporate college, umbrella of the whether the state commingled the col- funds will be with the funds of money spent, lege, planning will be whether how the state, any will be returned to the who excess funds supervision, planning under whose will do the and whole, state a what benefit will accrue as questions the . . . which the so forth. These are Here, in similar cases. courts have had to address however, guidance there is no whatsoever. incorporation of St. Nor- Looking to the articles of Inc., in quoted plaintiffs' amended College, bert's operated they college is to be complaint, direct philosophy, other teach- theology, context of "within the church and of the Roman Catholic ings and doctrines philosophy of compliance objectives with shall be Premontre, relig- a of Regular . . . The Order of Canons Under Catholic Church." order of the Roman ious corporation is limited articles, membership college in the known as nonprofit corporation a members to the Fathers," order religious "The Premonstratensian itself, "operated which, corporation college like the philosophy, theology, with consistent a manner Roman Catholic doctrines teaching and other philosophy and the objectives and with Church Premontre, Regular of Canons the Order Church." Catholic the Roman order of provide also articles college corporation's by the Premon- appointed be directors is to its board of bylaws can Fathers, corporation's and the stratensian by action of repealed amended only adopted, Fathers. Premonstratensian not- allegations, all such admits The state's answer college corpora- the members only that while ing by the Premon- appointed were of directors board tion's operations of the Fathers, day-to-day "the stratensian . . . Trustees by a Board of conducted are now *11 Board of thirty percent of the than that no more can be Norbertines." Trustees that recognized has Supreme Court The Wisconsin primary having as the normally thought of may "[a]id an institu when it flows to advancing religion effect of that a substantial pervasive is so religion in which tion religious subsumed the its functions are portion of Nusbaum, Wis. v. . . .." State ex rel. Warren mission (1974). is I believe that 314, 325, 219 2d case here. (1) concedes, that as it must: The state overall incorporation commit its corporation's articles ., teachings . . "theology, philosophy operation to the Roman Catholic ., objectives" .. doctrines [and] Premontre; Regular of Canons Order Church and the by the Premon- (2) are named college's that the directors Fathers, similarly committed to the are who stratensian Church; and objectives doctrines and philosophy, adopt, can (3) Fathers only the Premonstratensian that repeal bylaws amend or under which the college cor- poration operates. only by fact offered the state to ameliorate the

sectarian dominance of the college's operations is the allegation the answer that the institution's "day-to- day operations" are now by group conducted of trust- ees membership only whose thirty percent sectarian. uncontroverted, however, It remains that no matter who may basis, oversee day-to-day matters on a the college's operations required to be according conducted to precepts of the Roman Catholic Church and the order comprises which college corporation's entire membership; and that order power retains the sole adopt, repeal amend or bylaws under which the col- lege operates. pleaded

Those are the facts that were considered court, they conclude, trial me to Judge lead did, Pekowsky the statute cannot To stand. me those facts lead to a single conclusion: religion is so pervasive part of the college's makeup that the aid embodied in appropriation only can have the effect I advancing religion. would affirm the trial court and hold that the challenged statute is unconstitutional on its face.