Town of Wilson, Plaintiff-Appellant, v. City of Sheboygan, Defendant-Respondent.
CASE NO.: 2018AP2162
SUPREME COURT OF WISCONSIN
February 14, 2020
2020 WI 16
ON BYPASS FROM THE COURT OF APPEALS; ORAL ARGUMENT: September 19, 2019; SOURCE OF APPEAL: COURT: Circuit, COUNTY: Sheboygan, JUDGE: Daniel J. Borowski
JUSTICES:
DALLET, J., delivered the majority opinion for a unanimous Court with respect to Parts I., III.C., and III.D., and the majority opinion of the Court with respect to Parts II., III.A., III.B., and IV., in which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J., joined. HAGEDORN, J., filed a concurring opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant, there were briefs filed (in the court of appeals) by Michael D. Huitink and Sorrentino Burkert Risch LLC, Brookfield. There was an oral argument by Michael D. Huitink.
For the defendant-respondent, there was a brief filed (in the court of appeals) by H. Stanley Riffle and Municipal Law & Litigation Group, S.C., Waukesha. There was an oral argument by H. Stanley Riffle.
For amicus Wisconsin Towns Association, a brief was filed by Joseph Ruth, Shawano.
For joint amici League of Wisconsin Municipalities and NAIOP – Wisconsin there was a brief filed by Julie M. Gay and Law Office of Julie M. Gay, Waukesha, Thomas D. Larson, Madison, and Claire Silverman, Madison.
Town of Wilson, Plaintiff-Appellant, v. City of Sheboygan, Defendant-Respondent.
No. 2018AP2162 (L.C. No. 2017CV490)
STATE OF WISCONSIN : IN SUPREME COURT
FILED FEB 14, 2020
2020 WI 16
DALLET, J., delivered the majority opinion for a unanimous Court with respect to Parts I., III.C., and III.D., and the majority opinion of the Court with respect to Parts II., III.A., III.B., and IV., in which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J., joined. HAGEDORN, J., filed a concurring opinion.
APPEAL from an order of the Circuit Court for Sheboygan County, Daniel J. Borowski, Judge. Affirmed.
¶2 On bypass3 from the court of appeals, the Town asks us to review whether: (1) the annexation satisfies the statutory contiguity requirement; (2) the annexation satisfies the rule of reason; (3) the annexation petition strictly complied with the signature requirements in
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶3 For nearly 80 years Kohler has owned 247 acres of undeveloped land abutting Lake Michigan located within the Town‘s boundaries. In March 2014, Kohler submitted an application with the Town for a conditional use permit to develop the land into a world championship golf course. After Kohler‘s plan went public, there was immediate opposition to the proposed development by the Town‘s citizens. The opposition centered on environmental concerns, deforestation, and perceived impacts to residential wells. By 2015, three of the five members of the Town Board were known to oppose the development, decreasing the likelihood that Kohler‘s application would be approved.
¶4 Due to unfolding Town Board opposition and concerns about the Town‘s ability to provide adequate water and fire services to the proposed development,4 Kohler approached the City about the possibility of annexing its property and adjacent lands. The City was interested in Kohler‘s proposal as it “had historically targeted the lands within the annexation, including the Kohler Land, for future City expansion, development and economic growth as a part of the City‘s 2011 Comprehensive Plan.” The City was also facing a substantial need for housing, which was stunting economic growth. Annexation would allow the City to immediately address its housing needs by developing the land adjacent to Kohler‘s property. It was a mutually beneficial arrangement for Kohler and the City: annexation was a means for Kohler to achieve its goal of developing its land into a golf course and for the City to achieve its goal of economic growth.
¶5 Kohler independently designed the boundaries of the territory subject to the proposed annexation, without the City‘s assistance. To increase its size and shape, Kohler included a large amount of state land in its proposal. Kohler also purchased several of the properties located within the territory. Pursuant to Kohler‘s design, the border between the City and the first parcel of the territory spans approximately 650 feet in width. The territory proceeds in a southeasterly direction and varies in size from 1,450 feet wide at certain points to 190 feet wide before expanding to the proposed golf course development. The map of the annexation is attached as an appendix to this opinion.
¶6 Kohler initiated the annexation process in April 2017 by publishing a notice in the Sheboygan Press and sending a “Request for Annexation Review” to the Department of Administration (“DOA“). Kohler then circulated a “Petition for Annexation by One-Half Approval” (the “Petition“) in accordance with
¶7 DOA issued a nonbinding recommendation in favor of the annexation and found it in the “public interest,” as defined in
¶8 Shortly thereafter, the City‘s Common Council adopted two ordinances: one annexing the territory included in the Petition and another zoning the land as suburban residential. Additionally, the Common Council approved a pre-annexation agreement between Kohler and the City.8
¶9 The Town filed suit against the City in the circuit court and moved for a temporary injunction, which was denied. The parties filed cross-motions for summary judgment regarding the validity of the annexation pursuant to
¶10 In November 2018, the circuit court issued a written decision concluding that: (1) the annexation satisfied the statutory contiguity requirement in
II. STANDARD OF REVIEW
¶11 The legislature has conferred broad authority on cities and villages to annex unincorporated lands under
¶12 In order to resolve the Town‘s contention that the annexation is not contiguous and that the Petition failed to comply with the procedural requirements set forth in
¶13 We also review the circuit court‘s application of the rule of reason, a doctrine designed to determine whether the power delegated to cities and villages under
(1) exclusions and irregularities in boundary lines must not be the result of arbitrariness; (2) some reasonable present or demonstrable future need for the annexed property must be shown; and (3) no other factors must exist which would constitute an abuse of discretion on the part of the municipality.
Town of Menasha v. City of Menasha, 170 Wis. 2d 181, 189, 488 N.W.2d 104 (Ct. App. 1992). A failure to satisfy any one of the prongs renders an annexation arbitrary, capricious, and invalid. Town of Lafayette, 70 Wis. 2d at 625.
¶14 We accept the circuit court‘s factual determinations regarding the rule of reason unless they are clearly erroneous. Town of Baraboo v. Village of West Baraboo, 2005 WI App 96, ¶19, 283 Wis. 2d 479, 699 N.W.2d 610. “Whether the undisputed facts meet the legal standards of the
¶15 Lastly, we review the circuit court‘s grant of summary judgment as to the Petition‘s compliance with the population certification requirement in
III. ANALYSIS
¶16 We first address the Town‘s claim that the annexation does not meet the statutory contiguity requirement, as set forth in
A. Contiguity
¶17 The Town asserts that the annexed territory is not contiguous to the City and therefore the annexation ordinance should be invalidated. Wisconsin Stat.
¶18 To determine the definition of “contiguous” as it relates to
¶19 We have rejected the adoption of a broader definition of contiguous that includes territory near to, but not actually touching, a municipality. See Town of Delavan, 176 Wis. 2d at 528-29 (declining the City‘s request to adopt
¶20 The Town presents side-by-side maps to support its assertion that the annexation in this case is “virtually identical” to the annexation invalidated in Mt. Pleasant I, 24 Wis. 2d 41. In Mt. Pleasant I, a private party sought to connect its land to the Racine city limits by a corridor approximately 1,705 feet long, varying in width from approximately 152 to 306 feet. Id. at 43. The land physically touched the Racine city limits only at the southwest corner by a 153-foot-wide corridor. Id. at 43-44. The Mt. Pleasant I court focused its discussion of contiguity on the validity of “corridor” or “strip” annexations, intended by developers to attach land to a city to obtain services, but which “in reality are no more than isolated areas connected by means of a technical strip a few feet wide.” Id. at 45-46.
¶21 Because of the lack of Wisconsin authority regarding the validity of these annexations, the Mt. Pleasant I court looked to out-of-state authority for guidance. Id. at 45. Four of the five out-of-state cases cited in Mt. Pleasant I involved voided annexations with a border of less than 100 feet between the annexing municipality and the annexed territory. See Potvin v. Village of Chubbuck, 284 P.2d 414, 415 (Idaho 1955) (corridor strip was five feet wide); Clark v. Holt, 237 S.W.2d 483, 484 (Ark. 1951) (border was 50 feet wide); State ex rel. Danielson v. Village of Mound, 48 N.W.2d 855, 858-59 (Minn. 1951) (“100-foot wide railroad right of way which extends about five-eighths of a mile“); State ex rel. Fatzer v. Kansas City, 222 P.2d 714, 720 (Kan. 1950) (of the land annexed, “only 82 feet touches the city limits of Kansas City“).12
¶22 Here, unlike in Mt. Pleasant I, the annexed territory shares a common boundary with the City of 650 feet, which is more than only a “technical strip a few feet wide.”13 The degree of physical contact between the City and the territory is over
¶23 We observe that when the Mt. Pleasant I court stated that it relied upon “application thereto of the rule of reason” to reach its conclusion regarding statutory contiguity, 24 Wis. 2d at 47, it blurred the statutory contiguity and rule of reason analyses. This has caused confusion and conflation of the statutory contiguity requirement with the first prong of the rule of reason. See, e.g., Town of Waukechon, 53 Wis. 2d at 597. We clarify that contiguity is a legislative mandate discrete from the first prong of the judicially created rule of reason, which is described in detail below.
B. The Rule of Reason
¶24 The rule of reason is a “judicially-created doctrine courts have applied to assess the validity of annexations,” in addition to statutory requirements. Town of Lincoln v. City of Whitehall, 2019 WI 37, ¶15 n.10, 386 Wis. 2d 354, 925 N.W.2d 520. The rule, also referred to as “the test of reason,” has been traced back to the 1880s. See Smith v. Sherry, 50 Wis. 210, 6 N.W. 561, 564 (1880); see also Town of Fond du Lac v. City of Fond du Lac, 22 Wis. 2d 533, 541, 126 N.W.2d 201 (1964) (applying the rule of reason that was “first announced in Smith v. Sherry“). Wisconsin courts have applied the rule of reason in annexation cases for over 50 years14 to serve as a check on whether a municipality has abused its powers of annexation. Town of Delavan, 176 Wis. 2d at 538. The analysis continues to play a role in Wisconsin annexation jurisprudence.15
1. Arbitrariness
¶26 The first prong of the rule of reason prohibits exclusions and irregularities in boundary lines as a result of arbitrariness. Id. We have long recognized that “[w]here property owners initiate direct annexation, we do not think the municipality may be charged with arbitrary action in the drawing of the boundary lines.” Town of Lyons, 56 Wis. 2d at 338. The choice of boundaries is generally within the discretion of the private party petitioners. See Town of Pleasant Prairie, 75 Wis. 2d at 342.
¶27 However, there are two exceptions when boundary lines drawn by private party petitioners may be considered impermissibly arbitrary. The first is when the municipality is the “‘real controlling influence‘” in selecting the boundaries. Town of Baraboo, 283 Wis. 2d 479, ¶24 (quoted source omitted). In that situation, “the municipality may be charged with any arbitrariness in the boundaries even though the property owners are the petitioners.” Town of Lincoln, 386 Wis. 2d 354, ¶15 n.11. “‘Influencing’ the proceedings, in this context, means more than providing mere technical assistance or recommendations to the petition signers . . . rather, it means conduct by which the annexing authority dominates the petitioners so as to have effectively selected the boundaries.” Town of Menasha, 170 Wis. 2d at 192. In other words, a court may determine there is arbitrariness when the annexing municipality acts as a “‘puppeteer and the petitioners [are it‘s] puppets dancing on a municipal string.‘” Town of Lincoln, 386 Wis. 2d 354, ¶15 n.11 (quoting Town of Waukesha v. City of Waukesha, 58 Wis. 2d 525, 530, 206 N.W.2d 585 (1973)).
¶28 Boundaries drawn by a private party may also be considered impermissibly arbitrary when the territory subject to the proposed annexation is an “exceptional” shape. See, e.g., Town of Pleasant Prairie, 75 Wis. 2d at 342 (“Where the boundaries of an otherwise unexceptionable direct annexation are fixed by petitioners . . . without the exercise of undue influence by the annexing city or village, we see no reason why the petitioners may not determine those boundaries so as to insure the annexation‘s success.“)(emphasis added); see also Town of Medary v. City of La Crosse, 88 Wis. 2d 101, 115-16, 277 N.W.2d 310 (Ct. App. 1979) (“The rule of reason may, however, be applied to invalidate an annexation where the annexation may result in ‘gerrymandered’ or ‘crazy quilt’ municipal boundaries, even when the annexation is initiated by a private landowner who sets the boundaries.“); Town of Menasha, 170 Wis. 2d at 191 & n.3 (“There are some circumstances in which the shape of an annexed parcel‘s boundaries are so ‘irregular’ in shape, that shape alone——apart from any consideration of whether the city was acting as a petitioner——can serve to invalidate the annexation ordinance.“).
¶29 However, this second exception is limited to the most egregious situations, not mere irregularities in shape, or arm-like extensions. See Town of Baraboo, 283 Wis. 2d 479, ¶¶22-23
(reasoning that “although it produces an arm-like extension of the northern municipal boundary . . . [it] does not violate the first component of the rule of reason“); see also Town of Medary, 88 Wis. 2d at 117 (“While the shape of the annexation is somewhat irregular, the irregularity is partly necessitated because of the irregularity of the La Crosse city limits along the joint boundary of the city . . . [this] is not the extreme crazy-quilt or shoestring annexation disapproved in Mt. Pleasant.“)
¶30 In this case, as to the first exception, the circuit court found that “[t]here is absolutely no evidence in the record supporting any claim that the City selected the boundaries for the Kohler annexation.” Instead, the record shows that Kohler alone selected the territory to be included in the Petition, prepared the annexation map, and drew the boundary lines. The circuit court found that “the City had no input or involvement whatsoever in determining the boundaries for the annexation.”17 The circuit court‘s factual
¶31 As to the second exception, this annexation is not an exceptional shape. The boundaries in this case are not the type of exceptional “gerrymandered” or “crazy quilt” boundaries disapproved of in Mt. Pleasant I. See Town of Baraboo, 283 Wis. 2d 479, ¶¶22-23 (distinguishing the annexation at issue from a “shoestring” or “balloon on a stick” annexation whereby the Village sought to “‘capture’ a distant prized parcel“). The territory is 1,450 feet wide at certain points, which is almost five times the widest dimension in the Mt. Pleasant I annexation. Additionally, the configuration is also far more substantial in its dimensions than the isolated rural area that was connected by a technical strip in Mt. Pleasant I. We agree with the circuit court that “[t]he overall shape and appearance of the Kohler annexation is [] not so arbitrary or unreasonable that it can or should be invalidated.”
¶32 Based on the circuit court‘s findings of fact, which are supported by ample evidence, we conclude that the boundary lines are not impermissibly arbitrary under the first prong of the rule of reason.
2. Reasonable Present or Future Demonstrable Need
¶33 Under the second prong of the rule of reason, we assess whether there is “some reasonable present or demonstrable future need for the annexed territory.” Town of Pleasant Prairie, 75 Wis. 2d at 334. “To sustain the validity of an annexation the annexing municipality need not have a pressing, imperative need for the territory. A showing of a reasonable need for the annexation will be sufficient to sustain annexation.” Id. at 335.18
¶34 This court has considered a number of factors when determining the needs of the annexing municipality including: “‘(1) A substantial increase in population; (2) a need for additional area for construction of homes . . . ; (3) a need for additional land area to accommodate the present or reasonably anticipated future growth of the municipality; . . . (4) the extension of police, fire, sanitary protection or other municipal services . . . .‘” Town of Sugar Creek v. City of Elkhorn, 231 Wis. 2d 473, 482, 605 N.W.2d 274 (Ct. App. 1999) (quoting Town of Lafayette, 70 Wis. 2d at 626); see also Town of Pleasant Prairie, 75 Wis. 2d at 335-36. This list is not exhaustive as there are other factors which courts may deem relevant depending upon the particular facts of each case.
¶35 When the petition is initiated by a private party, as in the instant case, the court must also consider the petitioner‘s desire to be located in a particular municipality. Town of Sugar Creek, 231 Wis. 2d at 483. We have consistently given great weight to the desire of property owners to seek annexation in pursuit of their own perceived best interests. See Town of Pleasant Prairie, 75 Wis. 2d at 329; see also Town of Waukesha , 58 Wis. 2d at 533 (reasoning that the wishes of a private party petitioning for annexation “are relevant as well as the need of the municipality to annex“); Town of Campbell, 268 Wis. 2d 253, ¶31 (observing that in past decisions we have “consider[ed] the needs of the annexed territory along with the needs of the annexing municipality in concluding that the need component is met“). When considering a property owner‘s desire to annex property, we incorporate other factors like “the applicable zoning ordinances, development goals, and available services into its determination of need.” Town of Delavan, 176 Wis. 2d at 539.
¶36 The circuit court made detailed findings in its written decision regarding the City‘s need and Kohler‘s desire for annexation. In determining whether the City showed a present or demonstrable future need for the annexed territory, the circuit court observed that “[t]he most obvious example is in the expansion of residential housing . . . . Annexation further provides the City with the ability to achieve its long term economic planning and goals.” See Town of Lyons, 56 Wis. 2d at 338 (recognizing a city‘s reasonable need for land which could be zoned residential). The City had planned for years to develop and expand and Kohler‘s proposal provided the opportunity to do so. See Town of Waukechon, 53 Wis. 2d at 599 (recognizing that “the city has a comprehensive city plan which calls for residential development to the south of the city“). Therefore, the circuit court concluded that the “City‘s desire to effect a reasonable and orderly plan for municipal expansion, development and economic growth satisfy the need requirement under the rule of reason.”
¶37 The circuit court also detailed the reasons Kohler wanted its property to be annexed to the City: to overcome the Town Board‘s opposition to the intended golf course development and to assure that the golf course would receive a sufficient source of water. The circuit court described Kohler‘s predicament with the Town as follows: “the Town Board members historically opposed the golf course development . . . [and] . . . Kohler reasonably believed that [the Town Board] would not take a different approach when it came time to . . . vote on Kohler‘s application for a conditional use permit.”
¶38 The circuit court further weighed Kohler‘s concern that the Town is incapable of providing water for the golf course development. Kohler had determined that it would benefit from the availability of the City‘s municipal water source because it “ensured that there would be sufficient water available” for all of the buildings constructed in conjunction with the golf course. The availability of municipal water for the City‘s full-time fire department additionally “provided Kohler with better fire protection . . . than the Town‘s volunteer fire department.” The circuit court‘s factual findings on the City‘s needs and Kohler‘s desires for the annexation are amply supported by the evidence and therefore we conclude that the second prong of the rule of reason is satisfied.
3. Other Factors That Constitute an Abuse of Discretion
¶39 Finally, we consider whether there are other factors that would constitute an abuse of discretion under the third prong of the rule of reason. Town of Pleasant Prairie, 75 Wis. 2d at 327. Under this prong, we “consider evidence that the municipality abused its discretion for reasons other than those considered under the first two components.” Town of Campbell, 268 Wis. 2d 253, ¶37.
¶40 The
C. Signature Requirement
¶41 The Town asserts that because the territory included a large amount of state and city-owned land with no assessed value, the Petition failed to afford property owners with the representative power to veto a proposed annexation as intended by
¶42
(a) Direct annexation by one-half approval. A petition for direct annexation may be filed with the city or village clerk if it has been signed by either of the following:
1. A number of qualified electors residing in the territory subject to the proposed annexation equal to at least the majority of votes cast for governor in the territory at the last gubernatorial election, and either of the following:
a. The owners of one-half of the land in area within the territory.
b. The owners of one-half of the real property in assessed value20 within the territory.
(Emphasis added.)
¶43 The Town acknowledges that, pursuant to
¶44 The Town asserts, however, that the City circumvented the intent of
¶45 The Town‘s argument that a petitioner should be required to use one method of calculation over another is a policy argument and has no support in the statutory language. See Flynn v. DOA, 216 Wis. 2d 521, 529, 576 N.W.2d 245 (1998) (“It is for the legislature to make policy choices, ours to judge them based not on our preference but on legal principles . . . .“). It is undisputed that the Petition included the signatures of the owners of 91 percent of the territory measured by assessed value, thus complying with the requirements set forth in
D. Population Certification Requirement
¶46 Finally, the Town asserts that the Petition failed to certify the population count in accordance with
The petition shall also specify the population of the territory. In this paragraph, “population” means the population of the territory as shown by the last federal census, by any subsequent population estimate certified as acceptable by the department or by an actual count certified as acceptable by the department.
(Emphasis added.)
¶47 At the circuit court, the Town asserted that DOA failed to issue a certification of Kohler‘s population count, “either by written affirmation or otherwise.” The circuit court granted the City‘s partial summary judgment motion on the issue, concluding that the “undisputed facts in the present case demonstrate that Kohler‘s petition complied with the population requirement in
¶48 Schmidtke explained that when there is no federal census information, DOA employs a multi-step process to “certify as acceptable” the population estimate
¶49 As determined by the circuit court, the Town failed to raise a genuine issue of material fact regarding whether DOA “certified as acceptable” the population in the Petition based on its review. As the circuit court correctly noted,
IV. CONCLUSION
¶50 We conclude that the annexation meets the statutory contiguity requirement in
By the Court.—The decision of the circuit court is affirmed.
¶51 REBECCA GRASSL BRADLEY, J. (concurring). I agree with the majority that the annexation of Kohler‘s land to the City of Sheboygan satisfies the contiguity requirement of
I
¶52 Continuing to apply a judicial doctrine so consistently criticized for confusing judges and litigants alike in its meaning and application intractably ensconces in our jurisprudence even those cases widely recognized to be wrongly decided. “While adhering to precedent is an important doctrine for lending stability to the law, not every decision deserves stare decisis effect. After all, the purpose of stare decisis ‘is to make us say that what is false under proper analysis must nonetheless be held to be true, all in the interest of stability.‘” State v. Grandberry, 2018 WI 29, ¶86, 380 Wis. 2d 541, 910 N.W.2d 214 (Rebecca Grassl Bradley, J., dissenting) (quoting Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 138-40 (1997)). Besides eternalizing bad law, sustaining judicial rewriting of statutes sanctions judicial usurpation of the legislative function. “Reflexively cloaking every judicial opinion with the adornment of stare decisis threatens the rule of law, particularly when applied to interpretations wholly unsupported by the statute‘s text.” Manitowoc Co., Inc. v. Lanning, 2018 WI 6, ¶81 n.5, 379 Wis. 2d 189, 906 N.W.2d 130 (Rebecca Grassl Bradley, J., concurring).
¶53 This court has long recognized that multiple factors warrant jettisoning wrongly decided precedent:
(1) Changes or developments in the law have undermined the rationale behind a decision; (2) there is a need to make a decision correspond to newly ascertained facts; (3) there is a showing that the precedent has become detrimental to coherence and consistency in the law; (4) the prior decision is “unsound in principle;” or (5) the prior decision is “unworkable in practice.”
Bartholomew v. Wis. Patients Comp. Fund & Compcare Health Ins. Corp., 2006 WI 91, ¶33, 293 Wis. 2d 38, 717 N.W.2d 216 (footnote omitted). “The principle of stare decisis does not compel us to adhere to erroneous precedents or refuse to correct our own mistakes.” State v. Outagamie Cty. Bd. of Adjustment, 2001 WI 78, ¶31, 244 Wis. 2d 613, 628 N.W.2d 376. In determining whether to uphold a prior case‘s statutory interpretation, “[i]t is well to keep in mind just how thoroughly [an earlier decision] rewrote the statute it purported to construe.” Johnson v. Transp. Agency, 480 U.S. 616, 670 (1987) (Scalia, J., dissenting). In adopting the rule of reason, Mt. Pleasant I transformed a single word into a thorny three-part test requiring judges to inject their subjective whim into the analysis rather than applying their objective judgment.
¶54 The first two prongs of the rule ask whether boundaries are “arbitrar[y],” or there is a “reasonable” need for the property. See Town of Lafayette v. City of Chippewa Falls, 70 Wis. 2d 610, 625, 235 N.W.2d 435 (1975). Drawing the line between what is rational or arbitrary, and what is reasonable or unreasonable, inherently depends on the subjective beliefs of a reviewing judge. It is no wonder why, almost 70 years after the creation of the doctrine, nobody knows how it applies or what it prohibits. Regrettably but not surprisingly, the doctrine has spawned decades of cases from which no decipherable principle of law may be discerned. See Stephen L. Knowles, Comment, The Rule of Reason in Wisconsin Annexations, 1972 Wis. L. Rev. 1125, 1140 (1972) (“[The rule of reason‘s] use leads to confusion and invites litigation.“); Robert D. Zeinemann, Overlooked Linkages Between Municipal Incorporation and Annexation Laws: An In-Depth Look at Wisconsin‘s Experience, 39 Urb. Law. 257, 315-16 (2007) (stating that today‘s rule of reason “is a confusing set of ad hoc and oftentimes conflicting opinions” and its jurisprudence is akin to “muddy waters“).
¶55 When revisiting a judicial opinion like Mt. Pleasant I, which overrode the policy choices of the people‘s representatives in favor of the court‘s preferences, “courts of last resort are duty-bound to correct the prior court‘s error.” Manitowoc Co., Inc., 379 Wis. 2d 189, ¶81 n.5 (Rebecca Grassl Bradley, J., concurring); see also Gamble v. United States, 139 S. Ct. 1960, 1989 (2019) (Thomas, J., concurring) (“[W]e should not invoke stare decisis to uphold precedents that are demonstrably erroneous.“). As the court recently recognized, “[w]e do more damage to the rule of law by obstinately refusing to admit errors, thereby perpetuating injustice, than by overturning an erroneous decision.” State v. Roberson, 2019 WI 102, ¶49, 389 Wis. 2d 190, 935 N.W.2d 813 (quoting Johnson Controls, Inc. v. Emp‘rs Ins. of Wausau, 2003 WI 108, ¶100, 264 Wis. 2d 60, 665 N.W.2d 257). “If the precedent is bad, let it be overruled by all means, or let the legislature regulate the matter by statute.” Francis Lieber, On Civil Liberty and Self-Government 211 (Theodore D. Woolsey ed., 3d ed. 1883). With respect to annexation, the legislature
II
¶56 In Mt. Pleasant I, the court purported to address whether the annexation by the City of Racine of property located in the Town of Mt. Pleasant “was void because the area proposed to be annexed [was] not contiguous to the city of Racine within the requirements of sec. 66.021(2)(a)[.]” Town of Mt. Pleasant v. City of Racine, 24 Wis. 2d 41, 45, 127 N.W.2d 757 (1964). The land at issue in Mt. Pleasant I was 145 acres total, including a corridor roughly “1,705 feet long, and varying in width from approximately 306 feet to 152 feet.” Id. at 43. At the end of this corridor, 153 feet of the annexed area touched the City of Racine. Id. at 44. On appeal, the court considered whether the proposed annexation satisfied the statutory requirement of contiguity. Id. at 45. At the time of Mt. Pleasant I,
¶57 The Mt. Pleasant I majority neglected to analyze the statutory meaning of “contiguous,” a deficit to which the majority in this case alludes but nevertheless declines to rectify. Majority op., ¶20. Instead of developing the meaning of “contiguous” under the annexation statute, the majority elects to distinguish the annexed territory in Mt. Pleasant I from the annexed property in this case, based upon the “significant degree of physical contact between the properties.” Majority op., ¶22 (citation omitted). I agree with the majority‘s conclusion; giving the word its plain meaning, Kohler‘s property is “contiguous” to the City of Sheboygan. See Contiguous, Black‘s Law Dictionary (11th ed. 2019) (“Touching at a point or along a boundary; ADJOINING“).
¶58 In this case, the majority acknowledges “[t]he Mt. Pleasant I court focused its discussion of contiguity on the validity of ‘corridor’ or ‘strip’ annexations,” which Mt. Pleasant I described as “isolated areas connected by means of a technical strip a few feet wide.” Mt. Pleasant I, 24 Wis. 2d at 46; majority op., ¶20. Somewhat ironically, Mt. Pleasant I‘s concern over shoestring or gerrymander annexations was completely untethered to the statutory contiguity requirement. In lieu of ascertaining the meaning of “contiguous” under the annexation statute, that court supplanted the statutory language altogether in favor of the judicially-invented “test of reason.” Mt. Pleasant I, 24 Wis. 2d at 45–46. While the legislature imposed but one substantive requirement——contiguity——the judiciary fashioned
fashion, that under the extra-textual “rule of reason . . . the annexation of the area in question does not meet the statutory requirement of contiguity.” Id. at 47.
¶59 Mt. Pleasant I‘s determination that the boundary lines of the proposed annexation were not “reasonable,” i.e., were “fixed arbitrarily, capriciously, or in the abuse of discretion[,]” has no bearing on whether annexed property is contiguous. Boundary lines could be “fixed arbitrarily” and unreasonable, and nevertheless be “contiguous” under the annexation statute. Rather than applying the sole criterion for a lawful annexation——contiguity——the Mt. Pleasant I court instead introduced considerations it found pertinent under its policy predilections, but were in fact extraneous to the statutory language. See Mt. Pleasant I, 24 Wis. 2d at 47 (Wilkie, J., dissenting) (citing
¶60 Grounded in the premise that judges know better than the people‘s representatives, the rule of reason displays judicial arrogance at its worst. See Clayton P. Gillette, Expropriation and Institutional Design in State and Local Government Law, 80 Va. L. Rev. 625, 681–82 (1994) (noting that implicit in Mt. Pleasant I‘s rationale is “that judicial intervention could provide a more accurate decision about the propriety of particular annexations“); Laurie Reynolds, Rethinking Municipal Annexation Powers, 24 Urb. Law. 247, 295 n.185 (1992) (“The . . . rule of reason . . . allows wide-ranging judicial inquiry to evaluate the policy decisions behind the municipality‘s annexation.” (citation omitted)). The rule of reason represents a relic of a by-gone era, reflecting the long-discredited notion that it was the duty of jurists to “do justice.”8
¶61 Mt. Pleasant I also violated a cardinal canon of statutory interpretation by adding words (and a lot of them) to the statutory text. “Under the omitted-case
¶62 The majority in this case does not attempt to dispute the existence of statutory contiguity (under its “common, ordinary, and accepted meaning“)9 in Mt. Pleasant I, nor can it identify any language in
¶63 Just like its predecessor statute in 1964,
III
¶64 The “rule of reason” does not enjoy the longevity suggested by the majority. In a passing reference, the majority cites Smith v. Sherry, 50 Wis. 210, 6 N.W. 561 (1880), as the rule‘s foundation. See majority op., ¶24. Not so. In Town of Fond du Lac v. City of Fond du Lac, 22 Wis. 2d 533, 541, 126 N.W.2d 201 (1964), the court erroneously declared the rule of reason to
¶65 In Sherry, the court considered the validity of the Village of Shawano‘s annexation of non-adjoining property over six miles away. See Sherry, 50 Wis. at 561. The court held the annexation invalid pursuant to
¶66 Almost fifty years of academic scholarship and cases reveal the shaky foundation for the current three-pronged rule of reason. Based solely on improper judicial policy making, the rule of reason has no foundation in Sherry or the Wisconsin Constitution. Sherry “has been infrequently cited in the past sixty years and misused when it was cited.” Zeinemann, supra ¶54, at 277 & n.145 (internal footnote omitted; footnote omitted) (explaining courts miscited Sherry for the basis of the current rule of reason). Wisconsin courts have cited Sherry in annexation cases only twice since 1975. For good reason. “[T]oday‘s Rule of Reason bears little resemblance to the rule from Sherry” and “departs from Sherry.” Id. at 278 (footnote omitted); see also Knowles, supra ¶54, at 1133 (discussing two weaknesses with the rule of reason‘s purported basis in the constitution). While the rule of reason is a limitation on arbitrary actions by municipalities, the constitutional provision applied in Sherry is a “positive grant of power” allowing municipalities to govern themselves. See
¶67 The expressed purpose for the judicial creation of the rule of reason was to effectuate a perceived legislative “intent” to prohibit certain annexations. Mt. Pleasant I, 24 Wis. 2d at 46 (suggesting that a corridor annexation “does not coincide with legislative intent“); see also Richard W. Cutler, Characteristics of Land Required for Incorporation or Expansion of a Municipality, 1958 Wis. L. Rev. 6, 29 (1958) (“Presumably the court interpreted the rule of reason as representing legislative intent.” (footnote omitted)); Knowles, supra ¶54, at 1139 (“The principal advantage of the rule of reason in the contiguity cases is that, at least in theory, it may be used to invalidate annexations allowed by the statutes but clearly contrary to legislative intent.“). This court rightly discarded legislative “intent” as a permissible indicator of statutory meaning. See State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110 (“It is the enacted law, not the unenacted intent, that is binding on the public.“); see also State v. Lopez, 2019 WI 101, ¶39, 389 Wis. 2d 156, 936 N.W.2d 125 (Rebecca Grassl Bradley, J., concurring) (“An interpretation based on what the legislature intended a statute to mean is improper.“); Winebow, Inc. v. Capitol-Husting Co., 2018 WI 60, ¶40, 381 Wis. 2d 732, 914 N.W.2d 631 (Rebecca Grassl Bradley, J., dissenting) (“[L]egislative intent behind enactment of a law . . . cannot govern statutory interpretation. Rather, our analysis must focus on the statutory language itself[.]“); State v. Grandberry, 380 Wis. 2d 541, ¶55 (Kelly, J., concurring) (“[W]e give effect only to what the legislature does, not what it tried to do.” (footnote omitted)).
¶68 Crafting judicial doctrines based on the collective intent of a large body relies on the false premise that a deliberative body acts with a single purpose. See John W. MacDonald, The Position of Statutory Construction in Present Day Law Practice, 3 Vand. L. Rev. 369, 371 (1950) (“[A]nyone who has ever dealt with the legislative process knows how conspicuously absent is a collective legislative intention.“); see also Scalia & Garner, Reading Law, supra ¶61, at 391-96 (“[C]ollective intent is pure fiction because dozens if not hundreds of legislators have their own subjective views on the minutiae of the bills they are voting on[.]“). Legislative intent is nothing more than a pretense to conceal what the court is actually doing——making law reflecting its own biases and policy predilections. See John F. Manning, Without the Pretense of Legislative Intent, 130 Harv. L. Rev. 2397, 2400, 2406-07 (2017) (“[L]egislative intent is a fiction, something judges invoke to elide the fact that they are constructing rather than identifying a legislative decision.“). “It is impossible to find the ‘will,’ ‘design,’ ‘intent,’ or ‘mind’ . . . without making some value judgment about what should count as that legislature‘s intended decision and why.” Id. at 2431 (emphasis in original). The only foundation upon which the rule of reason stands, legislative intent, collapsed long ago.10 There is nothing left upon which the rule can, or should, stand.
¶69 Mt. Pleasant I was the first case to use the rule of reason to invalidate an annexation for lack of contiguity. Knowles, supra ¶54, at 1138. Setting aside the impropriety of the court‘s action, Mt. Pleasant I failed to explain it. See Walter K. Johnson, The Wisconsin Experience with State-Level Review of Municipal Incorporations, Consolidations, and Annexations, 1965 Wis. L. Rev. 462, 479 (1965). Mt. Pleasant I neglects to explain why the annexation was arbitrary, capricious, or an abuse of discretion, nor does it specify the court-proclaimed “lack of reason for the annexation shape.” Id.; see also Mt. Pleasant I, 24 Wis. 2d at 45–47. Instead, it substituted its own will for that of local officials. Johnson, supra ¶69, at 479.
¶70 In this case, the majority elects to continue applying the rule of reason, but the rule‘s incurable flaws prevent the majority from contributing any clarity. With respect to the arbitrariness prong of the test, the majority concludes the land at issue “is not an exceptional shape[,]” before declaring it is not similar to the “boundaries disapproved of in Mt. Pleasant I.” Majority op., ¶31. The aerial images provided by the Town of Wilson, however, show that the shape of the annexed property is almost identical to the annexation‘s shape in Mt. Pleasant I. Parties will remain
¶71 The other requirements of the rule of reason suffer from the same infirmities. Under the third prong, “no other factors must exist which would constitute an abuse of discretion.” Town of Pleasant Prairie v. City of Kenosha, 75 Wis. 2d 322, 327, 249 N.W.2d 581 (1977) (footnote omitted). What factors rise to the level of an abuse of discretion? Prior decisions shed little light on this part of the inquiry. The majority in this case defines the standard as encompassing “reasons other than those considered under the first two components.” Majority op., ¶39 (quoted source omitted). Does this mean an annexation reflects an abuse of discretion whenever a judge identifies any other reason for rejecting the annexation besides arbitrariness or lack of reasonable need? See Manning, supra ¶68, at 2400.
¶72 The rule of reason does not work because it is not a rule of law; it is a mechanism by which the judiciary exercises not its judgment but its will. The majority and Justice Hagedorn‘s concurrence both suggest the court acquiesce to the parties’ requests to retain the rule of reason. See majority op., ¶24 n.15. (noting the “parties’ request that the rule remain intact[]“); Justice Hagedorn‘s concurrence, ¶78 (with respect to “discarding the rule of reason . . . . the parties . . . expressly asked us not to do so.“) Litigants, of course, advocate for decisions benefitting their interests. Judges, however, have an independent duty to say what the law is, regardless of what the parties may wish it to be. See Marbury, 5 U.S. (1 Cranch) at 177. The majority mischaracterizes abolishing the rule of reason as “abandon[ing] our neutrality to develop arguments.” See majority op., ¶24 n.15 (quoted source omitted). Overturning a law the court had no authority to invent is not abandoning neutrality; it is our judicial role and our responsibility to ensure we exercise only judicial and not legislative power. See Marbury, 5 U.S. (1 Cranch) at 177. If parties ask us to usurp the role of the legislature, we must decline. The City‘s arguments in favor of retaining the rule of reason may be valid, but they are arguments properly made before the legislature, not the bench. It “is the obligation of the Judiciary . . . to confine itself to its proper role[.]” Koschkee v. Taylor, 2019 WI 76, ¶54, 387 Wis. 2d 552, 929 N.W.2d 600 (quoting City of Arlington v. F.C.C., 569 U.S. 290, 327 (2013) (Roberts, C.J., dissenting)). The proper judicial role does not include “reweigh[ing] the policy choices of the legislature.” Mayo v. Wisconsin Injured Patients and Families Comp. Fund, 2018 WI 78, ¶¶26, 40, 383 Wis. 2d 1, 914 N.W.2d 678. Because jurists are not policy makers, this court should apply the annexation law as enacted by the legislature and shed the rule of reason from the contiguity analysis.
¶73 The majority proposes the “proper procedure” would be to wait for the parties to raise the issue before deciding it. See majority op., ¶24 n.15 (quoted source omitted). The parties in this case did raise the rule of reason, asking us to apply it. If in the course of adjudicating a controversy, we discover we lack any authority to apply a law, we are duty-bound to say so. Cf. Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (abrogating Korematsu v. United States, 323 U.S. 214 (1944), even though neither party sought it, but simply because the dissent‘s invocation “afford[ed] th[e] Court the opportunity to make express . . . Korematsu was gravely wrong the day it was decided . . . and . . . ‘has no place in law[.]‘” (quoted source omitted)). The essence of the judicial function is not to fashion law based on our
IV
¶74 I agree with the majority in concluding that the annexation of Kohler‘s property by the City of Sheboygan satisfied the contiguity requirement under
¶75 I am authorized to state that Justice DANIEL KELLY joins this concurrence.
¶76 BRIAN HAGEDORN, J. (concurring). The majority opinion is a fair statement and application of the analytical framework our cases have announced. That‘s the good news, and the reason I join the majority. The bad news is that our cases are about as straightforward as a Halloween corn maze, and employ interpretive principles that should strike terror into everyone committed to the rule of law rather than the rule of judges.
¶77 In a tour de force, Justice Rebecca Grassl Bradley‘s concurrence lays out the manifold problems with the rule of reason. It reminds me of the two rules Justice Neil
¶78 With that said, I have one bit of pause before officially saying so and discarding the rule of reason from our jurisprudence. Namely, the parties did not ask us to go there, and in oral argument, expressly asked us not to do so. Eliminating the rule of reason would be a significant change in our doctrine. Before taking this step, I believe we would be best served by adversarial briefing and argument. A full hearing on the merits of this important issue would help ensure that we are not missing anything and that the consequences of our decision are fully fleshed out beforehand. Therefore, I join the majority, but would welcome an opportunity to revisit the rule of reason.
Notes
All subsequent references to(a) Direct annexation by one-half approval. A petition for direct annexation may be filed with the city or village clerk if it has been signed by either of the following:
1. A number of qualified electors residing in the territory subject to the proposed annexation equal to at least the majority of votes cast for governor in the territory at the last gubernatorial election, and either of the following:
a. The owners of one-half of the land in area within the territory.
b. The owners of one-half of the real property in assessed value within the territory.
Methods of annexation. Territory contiguous to any city or village may be annexed thereto in the following ways:
(a) Direct Annexation. . . .
- Whether the governmental services, including zoning, to be supplied to the territory could clearly be better supplied by the town or by some other village or city whose boundaries are contiguous to the territory proposed for annexation which files with the circuit court a certified copy of a resolution adopted by a two-thirds vote of the elected members of the governing body indicating a willingness to annex the territory upon receiving an otherwise valid petition for the annexation of the territory.
- The shape of the proposed annexation and the homogeneity of the territory with the annexing village or city and any other contiguous village or city.
(emphasis added).Other methods of annexation. Subject to
ss. 66.0301(6)(d) and66.0307(7) , and except as provided in sub. (14), territory contiguous to a city or village may be annexed to the city or village in the following ways:(a) Direct annexation by one-half approval. . . .
When asked at oral argument about the value of the rule of reason, the City‘s attorney responded, “the rule of reason protects against very, very far out circumstances,” and “if we do away with the rule of reason there is no check” on such circumstances. The City‘s attorney further commented: “I‘ve thought through this a lot . . . I‘ve done municipal law for forty years and I think it would be a bad thing to do away with the rule of reason.”
In subsequent cases, the court of appeals analyzed the shape of the boundaries drawn by a private party, while also continuing to call on this court to clarify the exception, see, e.g., Town of Baraboo v. Village of West Baraboo, 2005 WI App 96, ¶23 & n.5, 283 Wis. 2d 479, 699 N.W.2d 610 (calling on the court to clarify this issue, yet concluding the shape of the annexation was not “of a kind that removes it from the ‘general rule’ that owner-petitioned annexations should not be invalidated under the first component of the rule of reason” because “[i]t is not a shoestring or balloon on a stick annexation whereby the Village has relied solely on highway right-of-way to ‘capture’ a distant prized parcel . . .“); see also Town of Lincoln v. City of Whitehall, 2018 WI App 33, ¶39 n.7, 382 Wis. 2d 112, 912 N.W.2d 403 (reversed and remanded on other grounds) (“[W]e renew our call for the supreme court to clarify the law in this area.“).
We now answer the court of appeals’ numerous calls for clarification and reiterate that private party initiated annexations that are an “exceptional” shape may be reviewed by a court under the first prong of the rule of reason.
- Sheboygan‘s employees began lobbying for this golf course development even before it knew what other properties would be included in the annexation (i.e., support the golf course regardless of any other issues or needs);
- Sheboygan allowed Kohler to write and even dictate the advocacy position for the golf course, both to its officials and the DOA;
- Sheboygan knew this plan was “controversial” and could not be supported by references to its Comprehensive Plan, and asked Kohler to provide justifications for it;
- Sheboygan had no concern about ripping this land use conditional use permit decision away from the Town and residents that surround the subject parcel.