Silver Lake Sanitary District v. Wisconsin Department of Natural ResourcesSilver Lake Sanitary District v. Wisconsin Department of Natural Resources
Lead Opinion
¶ 1. Silver Lake Sanitary District appeals from two orders of the circuit court detérmining 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
¶ 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.
¶ 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.
¶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,
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,
¶ 8. Agencies, municipal corporations and quasi-municipal corporations are all creatures of the state
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,
¶ 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,
¶ 10. In Columbia County v. Board of Trustees of the Wisconsin Retirement Fund,
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,
¶ 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,
¶ 12. Despite the supreme court's rulings in Dane County, Rothwell and Columbia County, the DNR argued, and the circuit court concluded, that private litigants were not essential for an arm of the state to challenge the constitutionality of a statute. Both the DNR and the circuit court relied heavily on Unified School District Number 1 of Racine County v. WERC,
¶ 13. First, it does not appear from the opinion in Unified School District that WERC contested whether the great public concern exception could be applied to the suit. It is blackletter law that an opinion does not establish binding precedent for an issue if that issue was neither contested nor decided. See Fulton,
The "no standing" rule is absolute in cases between an agency or a municipality and the state. The rule also applies in cases between a municipality and a private citizen, but is subject to two exceptions. The rule does not apply: (1) when the governmental agency has a duty to raise the issue .. .; and (2) if the issue is of "great public concern."
Id. at 303,
¶ 15. Because the supreme court has expressly stated that private litigants are an essential element of a lawsuit where an arm of the state contests a statute's constitutionality under the great public concern exception, we conclude that the great public concern exception cannot apply in a suit limited to two creatures of the state. Accordingly, because there are no private litigants in this suit, we conclude that the DNR does not have standing to contest the constitutionality
CONCLUSION
¶ 16. We conclude that the DNR does not have standing to challenge the constitutionality of §§30.2037 and 30.103, Stats., and therefore, we reverse both orders of the circuit court and remand with instructions to dismiss the DNR's counterclaims.
By the Court. — Orders reversed and cause remanded with directions.
Notes
Specifically, § 30.2037, Stats., provides "[t]he ordinary high-water mark of Big Silver Lake in the town of Marion in Waushara County shall be set by the department at 867 feet above mean sea level as determined under U.S. geological survey standards."
Section 30.103, Stats., provides:
A town sanitary district may identify the ordinary high-water mark of a lake that lies wholly within unincorporated territory and wholly within the town sanitary district. The department may not*220 identify an ordinary high-water mark of a lake that is different than the ordinary high-water mark identified by a town sanitary district under this section.
It was undisputed in the court below that Silver Lake is a municipal corporation and the DNR is a state agency; indeed, neither party has contended otherwise on appeal.
In Village of West Milwaukee v. Area Board of Vocational, Technical & Adult Education,
Other cases cited by the State to support its contention that private litigants are not needed for the court to apply the great public concern exception include Milwaukee County v. Milwaukee District Council 48,
Because of our decision in regard to standing, we do not reach the merits of the other issues raised by the parties.
Concurrence Opinion
¶ 17. (concurring). I agree with the conclusion of the majority opinion that DNR does not have standing to challenge the constitutionality of §§ 30.2037 and 30.103, Stats. The requirement that there be a private litigant in order to apply the great public concern exception to the general rule of no-standing has been enunciated by the supreme court, has not been expressly repudiated or overruled by it, and this court has applied the requirement in our most recent decision on the issue, S.C. Johnson & Son, Inc. v. Town of Calendonia,
¶ 18. The case that established the great public concern exception, Fulton Found, v. Department of Taxation,
¶ 19. From Fulton we know that in deciding whether an exception should be made for an issue of great public concern, it is relevant whether an individ
¶ 20. Soon after Fulton was decided, the supreme court applied the great public concern exception in Associated Hosp. Serv., Inc. v. City of Milwaukee,
¶ 21. The case in which the requirement thát there be a private litigant appears to have originated is Columbia County v. Board of Trustees of the Wisconsin Retirement Fund,
*231 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.
¶ 22. The court in Columbia County went on to conclude that the individual taxpayer did have the capacity to bring suit and a right to raise the constitutional issue on behalf of himself and other taxpayers. Id. at 319,
¶ 23. Columbia County was cited in five subsequent cases, which concluded that municipalities did not have standing to challenge the constitutionality of legislation, since the state or a state agency was the defendant. State ex rel. City of La Crosse v. Rothwell,
¶ 24. In Kenosha, after concluding that the city lacked standing under Columbia County and La Crosse to challenge the constitutionality of a statute concerning voting machines in an action against the secretary of state and the State of Wisconsin, the court stated:
¶ 25. The next relevant case is Unified Sch. Dist. No. 1 v. WERC,
¶ 26. It is difficult to derive from these cases a reasoned basis for the requirement that there be a private litigant in order that a municipality or state agency may challenge the constitutionality of a statute, when the issue is one of great public concern. The "necessary" private litigant is not — as Fulton and Associated Hospital demonstrate — challenging the constitutionality of the statute, but, rather, is relying on it. What policy or purpose is served by permitting a municipality or state agency to challenge the constitutionality of the statute in that situation, if the issue is one of great public concern, but not in cases where the opposing party relying on the statute is a municipality or state agency, regardless of the degree of public importance of the issue? The actual or likely existence of an individual challenging the statute on the same constitutional ground is, as the court in Fulton explained on rehearing, relevant in deciding whether the exception is necessary in a particular case: even if an issue is one of great public concern, there is no need to create an exception to the no-standing rule for municipalities and state agencies if the statute's unconstitutionality is being raised, or may likely be raised, by those individuals affected by it. But why is the existence of a private litigant relying on the statute necessary before a municipality or state agency may raise an issue of great public concern?
¶ 27. In my view it would be helpful to litigants — particularly municipalities and state agencies — and to the courts, for the supreme court to re-examine this requirement and determine whether it
S.C. Johnson & Son, Inc. v. Town of Calendonia,
1 do not address the question whether the issue DNR seeks to raise is one of great public concern, if the private litigant requirement were not to apply.