Wisconsin Lawyer
Vol. 85, No. 10, October 2012
Administrative Law
Wisconsin Livestock Facilities Siting Law – Power of Municipalities in Livestock Facilities Siting Process
Adams v. Wisconsin Livestock Facilities Siting Rev. Bd., 2012 WI 85 (filed 11 July 2012)
This case concerns Wis. Stat. section 93.90 (the Siting Law), which was enacted in 2004 to regulate livestock-facility siting and expansion. It is one of the types of steps states have taken "to balance the important interest in protecting precious natural resources with the important interest in encouraging a robust and efficient agricultural economy" (¶ 66). The statute establishes procedures for application for and granting of permits for livestock farm operators that want to locate their facilities in particular areas. The statute also directs the Department of Agriculture, Trade and Consumer Protection to draw up rules providing more specific guidelines for the permitting process; this has resulted in the promulgation of Wisconsin Administrative Code chapter ATCP 51.
In this case, the town of Magnolia granted Larson Acres Inc.'s application for a livestock-facility-siting permit but imposed conditions on the permit. Larson challenged some of the conditions in an appeal to the Wisconsin Livestock Facilities Siting Review Board (the Siting Board), which affirmed the town's decision to grant the permit but also imposed its own, substantial, modifications on the permit. The town appealed to the circuit court, which vacated the matter and remanded it to the Siting Board. The circuit court concluded that the town acted within its lawful authority when it imposed the conditions on the permit and that the Siting Board acted outside its authority when it modified the permit. In a published decision, the court of appeals reversed. See 2010 WI App 88.
In a majority opinion authored by Justice Gableman, the supreme court affirmed the court of appeals. It concluded that "the legislature has expressly withdrawn from political subdivisions the power to regulate livestock facility siting in any manner not prescribed by the Siting Law. It has done so by 1) promulgating uniform state standards designed to supersede local standards, 2) requiring that political subdivisions may not disapprove livestock facility siting permits [subject to limited exceptions], and 3) requiring that political subdivisions must condition permits on only the state standards [subject to a narrow exception contained in § 93.90(3)(ar)]" (¶ 50).
The court further concluded that the challenged conditions in the permit granted to Larson Acres failed to satisfy the narrow exception in section 93.90(3)(ar) because the town failed to adopt fact-finding to support the conditions. (Section 93.90(3)(ar) allows political subdivisions to impose conditions based on more stringent local standards if they were adopted by the subdivision before the application was filed and were based on findings adopted by the subdivision (¶ 54).)
The court further concluded that "when, as here, a political subdivision imposes conditions not authorized by the Siting Law or ATCP 51, the Siting Board may modify the conditions so as to render them in conformity with the Siting Law. In such a circumstance, the Siting Board need not return the farm operator to the beginning of the application process, which it has already properly completed. We do not address situations that may arise with respect to other agencies, and we craft no exceptions to the well-settled rules of administrative law" (¶ 65 n.29).
Finally, the court observed in a footnote that "our decision does not leave political subdivisions without recourse against polluters. Most importantly, political subdivisions retain the authority to bring nuisance abatement actions against polluting farms. See Wis. Stat. § 823.01. More generally, this decision does not speak to political subdivisions' ability to regulate livestock facility operations. It simply says that the legislature has forbidden them from regulating livestock facility siting except as permitted by the Siting Law" (¶ 65 n.30).
Chief Justice Abrahamson filed a dissenting opinion that was joined by Justice Bradley.
Constitutional Law
Discharge of Ministerial Church Employees – Free Exercise of Religion
DeBruin v. St. Patrick Congregation, 2012 WI 94 (filed 12 July 2012)
DeBruin was discharged from her employment as a ministerial employee of a Catholic parish. A ministerial employee is the type of employee of a religious institution whose work is fundamentally tied to the institution's religious mission (see ¶ 1 n.3). DeBruin had been hired as the parish's director of faith formation pursuant to an employment contract that provided that she could not be discharged without good and sufficient cause as that might be determined by the parish. After the discharge, she sued the parish asserting breach-of-contract and promissory-estoppel claims. The circuit court dismissed DeBruin's claims, and the court of appeals certified her appeal to the supreme court, which granted certification.
Five justices of the supreme court voted to affirm the circuit court's judgment. The lead opinion, authored by Justice Roggensack and joined by Justice Ziegler and Justice Gableman, concluded that DeBruin's complaint did not state a claim on which relief could be granted. "Permitting the continuation of this type of breach of contract or promissory estoppel claim by a ministerial employee, who seeks payment based on an allegedly improper reason for being terminated from her employment, would impermissibly interfere in a religious institution's choice of ministerial employees, in violation of the First Amendment of the United States Constitution and Article I, Section 18 of the Wisconsin Constitution. Therefore, a court may not review whether St. Patrick improperly terminated its ministerial employee because St. Patrick's choice of who shall serve as its ministerial employee is a matter of church governance protected from state interference by the First Amendment and by Article I, Section 18" (¶¶ 1-2).
"When a ministerial employee is terminated, the religious institution's decision about who shall teach its faith and how that shall be done are intertwined with the decision to terminate the employee. Courts can have no role in affirming or overturning such a decision based on the reason why the religious institution terminated the employment" (¶ 24).
Justice Crooks and Justice Prosser wrote separate concurring opinions. Although they agreed with the plurality that the circuit court's judgment dismissing the case should be affirmed, they did not reach the constitutional issue addressed by the plurality but would have affirmed on the basis of the specific contract at issue in this case (see ¶ 2 n.4).
Justice Bradley dissented. She concluded that "DeBruin's common law contract claims do not implicate free exercise concerns and therefore do not require dismissal for failure to state a claim. Further, it would be premature to determine whether the claims would foster an excessive state entanglement with religion" (¶ 99). Chief Justice Abrahamson joined this dissent.
Jurisdiction
Circuit Courts and Tribal Courts – Transfers of Civil Suits from Circuit to Tribal Courts
Kroner v. Oneida Seven Generations Corp., 2012 WI 88 (filed 11 July 2012)
This case concerns a Brown County Circuit Court's order to transfer to a tribal court a civil suit that was brought against a tribally owned entity by a person not a member of the tribe. In an unpublished decision, the court of appeals affirmed the transfer order. The question before the supreme court was whether the circuit court erroneously exercised its discretion when it transferred the action to tribal court.
Wisconsin Statutes section 801.54 authorizes a circuit court, in its discretion, to transfer a civil action to a tribal court, and the statute sets forth the conditions for doing so. The statute requires a threshold determination by the circuit court that concurrent jurisdiction exists (an issue as to which the lead opinion provides a helpful analytical framework in paragraphs 17-20).
"It [the statute] then provides that 'in the exercise of its discretion the circuit court shall consider all relevant factors.…' It states that the factors a court shall consider include but are 'not limited to' a series of facts, such as the tribal membership status of the parties, the timing of the motion to transfer, and the court in which the action can be decided most expeditiously. Wis. Stat. § 801.54(2)" (¶ 4).
On this appeal, the supreme court unanimously agreed that the decisions of the court of appeals and circuit court should be reversed. The lead opinion, authored by Justice Crooks and joined by Chief Justice Abrahamson and Justice Bradley, concluded that the record does not show that the circuit court made the necessary threshold determination of concurrent jurisdiction and considered "all relevant factors" as required. The lead opinion noted that the circuit court proceeded to the second step without articulating a basis for concurrent jurisdiction. It then focused on one of the factors listed in the statute – the factor related to "[w]hether issues in the action require interpretation of the tribe's laws, including the tribe's constitution, statutes, bylaws, ordinances, resolutions, or case law" – without addressing the other relevant factors (¶ 4).
"Where a court has not clearly discussed on the record the basis for a finding of concurrent jurisdiction and also the statutory factors it is required to consider, the record cannot be deemed adequate to support a decision to affirm. Because the facts and the applicable law were not fully stated and considered together in making both the determinations that the statute requires, the order to transfer was an erroneous exercise of the circuit court's discretion" (¶ 5). The lead opinion would have remanded the matter to the circuit court to resolve the issue of concurrent jurisdiction, apply the relevant factors governing transfer (if there is concurrent jurisdiction), and resolve the question of retroactive application of Wis. Stat. section 801.54 (because this case was pending before the transfer statute became effective).
However, four justices (Justice Prosser, Justice Roggensack, Justice Ziegler, and Justice Gableman) did not permit, on remand, transfer of this case to the tribal court but required the circuit court to proceed on the merits of the pending lawsuit (see ¶ 1 n.2). In Justice Roggensack's opinion, which was joined by Justice Ziegler and Justice Gableman, Justice Roggensack concluded that "the transfer to Oneida Tribal Court was not lawful because: (1) Wis. Stat. § 801.54 was retrospectively applied in violation of Kroner's vested substantive, constitutional rights, including, but not limited to, his right of access to Wisconsin courts that is granted in Article I, Section 9 of the Wisconsin Constitution; and (2) the supreme court's promulgation of § 801.54, pursuant to the legislative delegation of Wis. Stat. § 751.12(1), required the circuit court to make a threshold determination that the application of § 801.54 would not abridge, enlarge or modify the substantive rights of litigants" (¶ 109). Justice Prosser wrote a separate concurrence, in which he also concluded that the transfer statute was intended to be applied prospectively only (see ¶ 45).
Municipal Law
Alcohol Beverage Licenses – Unilateral Modification by Towns
Wisconsin Dolls LLC v. Town of Dell Prairie, 2012 WI 76 (filed 5 July 2012)
Wisconsin Dolls is a resort that is licensed as an adult-oriented establishment. It obtained both a Class "B" fermented-malt-beverages license and a "Class B" intoxicating-liquor license (collectively, the license) from the town of Dell Prairie. It asked for a license that would cover the entire eight acres of the resort, and the original license issued by the town explicitly covered the entire eight acres.
When renewing Wisconsin Dolls' license, the town reduced the described premises of the license from the entire eight acres to only the "Main Bar/Entertainment Building" of the resort. Wisconsin Dolls challenged this reduction in a certiorari action in the circuit court. The circuit judge dismissed the action. In a published decision, the court of appeals affirmed; it held that the original license was void because it failed to particularly describe the premises to which it applied as required by statute. See 2011 WI App 141. In a unanimous decision authored by Justice Prosser, the supreme court reversed the court of appeals.
First, the supreme court concluded that the original license issued to Wisconsin Dolls was not rendered void by an insufficient description of the premises. Wisconsin Dolls asked for a license that would cover the entire eight acres of the resort, and the original license explicitly covered the entire eight acres of the resort (see ¶ 3). The legislature has never required that alcohol beverages be sold or consumed only in buildings (see ¶ 40).
Second, the court held that the town exceeded its authority when it modified the description of the premises in renewing Wisconsin Dolls' alcohol-beverages license. "Towns may attach conditions to an alcohol beverages license, including limitations to the described premises, when the license is initially granted. If a town later wishes to modify the premises described in the license, especially a modification that disadvantages the licensee, it must pass a valid regulation or ordinance under Wis. Stat. § 125.10(1), follow the procedures outlined in Wis. Stat. § 125.12, or negotiate the consent of the licensee. A town is not permitted to unilaterally reduce the description of the premises when it renews an alcohol beverages license. The Town here did not proceed on a correct theory of law, and thus its modification of the license cannot be sustained" (¶ 57).
Real Property
Inverse Condemnation – Airplane Overflights
Brenner v. City of New Richmond, 2012 WI 98 (filed 17 July 2012)
Several owners of land located near a city-owned regional airport brought inverse-condemnation claims. They alleged that the airport's extension of a runway amounted to a compensable taking of easements because of the deleterious effects of overflights. The circuit court dismissed the claims. In an unpublished decision, the court of appeals reversed on grounds that the circuit court applied the wrong standard for a taking.
The supreme court affirmed the court of appeals in a unanimous opinion written by Justice Prosser. The main issue concerned the proper standard to apply to such takings: "In airplane overflight cases, is the proper standard for determining a taking (1) whether the overflights are low enough and frequent enough to have a direct and immediate effect on the use and enjoyment of property, or (2) whether the overflights deprive the property owner of all or substantially all beneficial use of the property?" (¶ 3).
The court held that the first standard was the correct one (see ¶ 4). "The standard for a taking in an airplane overflight case is whether the overflights have been low enough – that is, invasions of a person's block of superadjacent airspace – and frequent enough to have a direct and immediate effect on the use and enjoyment of the person's property. If this standard can be satisfied, the government has 'taken' an easement without paying compensation for it. Because the circuit court applied the much more stringent standard of a regulatory taking, the circuit court erred. As the court of appeals directed, this case must be remanded to the circuit court to apply the correct standard" (¶ 64).
The court also addressed several "attendant issues" to help guide the circuit court on remand, including the "dimensional distinction" relating to the plaintiffs' "block of air" (¶ 66) and "frequency" of violations (¶ 78). It declined to decide "whether the congressional definition of navigable airspace and the minimum safe altitude of flight preclude a taking at a height greater than the minimum safe altitude of flight. We need not decide this question because the allegations in the record are that aircraft were frequently travelling below the minimum safe altitude in flights over the plaintiffs' property" (¶ 73). Nonetheless, the court addressed various factors that bear on such issues for future cases. The record did not contain sufficient facts to enable the supreme court to resolve the matter using the correct standard.
Utilities
Construction – Public Service Commission Review
Wisconsin Indus. Energy Group Inc. v. Wisconsin Pub. Serv. Comm'n, 2012 WI 89 (filed 11 July 2012)
A utility, Wisconsin Power and Light (WPL), applied to construct a large, out-of-state electricity-generating facility. This litigation centered on whether the Public Service Commission of Wisconsin (PSC) correctly reviewed the application under the certificate of authority (CA) statute, Wis. Stat. § 196.49(3), or instead should have scrutinized it under the certificate of public convenience and necessity (CPCN) statute, Wis. Stat. § 196.491(3). The PSC determined that the CPCN process applied exclusively to in-state facilities and the CA review was appropriate. The circuit court affirmed, and the court of appeals certified the issue to the supreme court.
The supreme court affirmed in a majority opinion authored by Justice Roggensack. The court applied due-weight deference to the PSC's decision to use the CA procedures instead of the CPCN process (see ¶ 24). Both the CA and CPCN processes are explained in some detail. Neither statute explicitly addresses the review of out-of-state facilities, but the majority found clear guidance in their language, purpose, and context. It held that "the PSC reasonably concluded: (1) that the CA law controlled WPL's application to construct an out-of-state electric generating facility, and (2) that the CPCN law applies exclusively to in-state facilities" (¶ 39).
"Our conclusion that the PSC reasonably interpreted the CPCN as applying exclusively to in-state facilities rests on three interrelated premises: (1) the CPCN's regulation of 'persons' demonstrates that that law does not contemplate regulation of out-of-state activities; (2) the purpose of the CPCN law, to require the PSC to engage in thorough review of site-specific factors, does not reasonably accord with out-of-state activities; and (3) none of the options that could be followed to make the CPCN more reasonable as applied to out-of-state facilities is as reasonable as construing the law to apply exclusively to in-state facilities" (¶ 44). Each premise is discussed in some detail.
Justice Bradley dissented, joined by Chief Justice Abrahamson. "Like the majority, I recognize that both statutes are silent on their application to out-of-state facilities. Neither the Certificate of Authority (CA) statute nor the Certificate of Public Convenience and Necessity (CPCN) statute is perfectly tailored to address the PSC's regulation of an out-of-state facility. I part ways with the majority, however, when it transforms that silence into an unambiguous directive that erodes the legislative policy of providing protection for Wisconsin ratepayers" (¶ 62). The dissent concluded that the CPCN statute better fostered the legislative policy of protecting the state's ratepayers (see ¶ 63).
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