2020 WI 16
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP2162
COMPLETE TITLE: Town of Wilson,
Plaintiff-Appellant,
v.
City of Sheboygan,
Defendant-Respondent.
ON BYPASS FROM THE COURT OF APPEALS
OPINION FILED: February 14, 2020
SUBMITTED ON BRIEFS:
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.
2
2020 WI 16
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP2162
(L.C. No. 2017CV490)
STATE OF WISCONSIN : IN SUPREME COURT
Town of Wilson,
Plaintiff-Appellant,
FILED
v. FEB 14, 2020
City of Sheboygan, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent.
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.
¶1 REBECCA FRANK DALLET, J. Kohler Company sought to
convert 247 acres of land located in the Town of Wilson into a
world championship golf course. After determining that the golf
course development would not come to fruition if the land remained
within the Town's boundaries, Kohler successfully petitioned for
annexation to the City of Sheboygan. In response, the Town filed
No. 2018AP2162
a declaratory judgment action alleging that the annexation was
"arbitrary, capricious, non-contiguous, an abuse of discretion,
and otherwise procedurally and substantively non-compliant with
[the City's] annexation authority under Chapter 66, Wis. Stats,
and existing Wisconsin case[]law." The City moved for partial
summary judgment regarding the annexation petition's compliance
with the population certification requirement in Wis. Stat.
§ 66.0217(5)(a) (2017-18), which was granted.1 The circuit court
ultimately conducted a bench trial and concluded that the
annexation satisfied the statutory contiguity requirement and the
"rule of reason."2 The circuit court further concluded that the
annexation petition fully satisfied the procedural requirements of
§ 66.0217. Consequently, the circuit court dismissed the action
in full.
¶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 Wis. Stat. § 66.0217(3); and (4) the
annexation petition strictly complied with the population
certification requirement in § 66.0217(5)(a). We conclude that
All subsequent references to the Wisconsin Statutes are to
1
the 2017-18 version unless otherwise indicated.
Judge Daniel J. Borowski of the Sheboygan County Circuit
2
Court presided.
The Town's petition to bypass was filed pursuant to Wis.
3
Stat. § (Rule) 809.60.
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No. 2018AP2162
the annexation is contiguous and satisfies the rule of reason. We
also conclude that the annexation petition strictly complied with
§§ 66.0217(3) and (5)(a). Therefore, we affirm the circuit court.
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
4Kohler was concerned that the Town's inability to provide a
municipal water source would negatively impact the golf course
development based on: (1) insufficient water for the golf course
operations; (2) exposure to well damage claims from neighboring
landowners; and (3) a potentially inadequate water source for the
Town's volunteer fire department in the event of a fire.
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No. 2018AP2162
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 Wis. Stat.
§ 66.0217(3)(a).5 The Petition stated that its purpose was to
5 Wisconsin Stat. § 66.0217(3)(a)1. provides:
4
No. 2018AP2162
"make City of Sheboygan services available to the territory and to
ready the territory for development consistent with the City of
Sheboygan's 2011 Comprehensive Plan." According to the Petition,
the population of the territory subject to the proposed annexation
included six adults and three children. Kohler obtained five
signatures for the Petition from owners representing over one-half
of the real property in assessed value within the territory, as
required by § 66.0217(3)(a)1.b.6
¶7 DOA issued a nonbinding recommendation in favor of the
annexation and found it in the "public interest," as defined in
Wis. Stat. § 66.0217(6)(c).7 DOA determined that the annexation
(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.
6 The parties stipulated that five signatures would be a
majority of qualified electors.
7 DOA has a mandatory role to play in annexations "within a
county having a population of 50,000 or more." Wis. Stat.
§ 66.0217(6)(a). Section 66.0217(6)(c) states that the "public
interest" is determined after considering:
1. Whether the governmental services, including zoning,
to be supplied to the territory could clearly be better
5
No. 2018AP2162
was contiguous to the City "via a quarter-quarter sized parcel of
city-owned territory approximately 650-feet wide."
¶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 Wis. Stat. ch. 66 and the
rule of reason. The circuit court denied summary judgment based
on disputed issues of material fact regarding statutory
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.
2. 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.
8 As the circuit court noted, the pre-annexation agreement
reflected the "mutual interest between Kohler and the City in the
proposed annexation" and was negotiated between City officials and
Kohler before Kohler filed the Petition. The agreement established
mutual obligations of the City and Kohler as it related to the
proposed annexation. For example, the City agreed to extend water
utility to the golf course property, as well as provide police,
fire, and emergency services to the property. Kohler agreed to,
among other things, utilize the City's municipal water service for
all improvements on the property within three years of development.
6
No. 2018AP2162
contiguity, the rule of reason, and the Petition's compliance with
the procedural requirements set forth in Wis. Stat. § 66.0217.
The circuit court subsequently granted the City's partial motion
for summary judgment as to the Petition's compliance with the
population certification requirement in § 66.0217(5)(a).9 The case
proceeded to a bench trial. The trial centered on the Town's claim
that the annexation was not contiguous and violated the rule of
reason.
¶10 In November 2018, the circuit court issued a written
decision concluding that: (1) the annexation satisfied the
statutory contiguity requirement in Wis. Stat. § 66.0217(3); (2)
the annexation did not violate the rule of reason; and (3) the
Petition fully complied with the procedural requirements set forth
in § 66.0217.10 Accordingly, the circuit court dismissed the
Town's declaratory judgment action in full. The Town petitioned
this court to bypass the court of appeals, which we granted.
II. STANDARD OF REVIEW
¶11 The legislature has conferred broad authority on cities
and villages to annex unincorporated lands under Chapter 66 of the
9 The City, with the circuit court's permission, filed a
subsequent motion for partial summary judgment on this issue.
10The circuit court "incorporate[d] by reference" its May
2018 written decision on the City's motion for partial summary
judgment and noted that the Town did not raise any new issues at
trial regarding whether the Petition complied with the procedural
requirements of Wis. Stat. § 66.0217. It concluded that the
Petition "complied with the procedural requirements of
§ 66.0217 . . . [and it] was properly noticed and included the
signatures of five of the six qualified electors and the owners of
91% of the territory measured by assessed value."
7
No. 2018AP2162
Wisconsin Statutes. See Town of Pleasant Prairie v. City of
Kenosha, 75 Wis. 2d 322, 326-27, 249 N.W.2d 581 (1977).
Annexation ordinances have long enjoyed a presumption of validity.
Id.; see also Town of Lafayette v. City of Chippewa Falls, 70
Wis. 2d 610, 618, 235 N.W.2d 435 (1975). A party challenging an
annexation ordinance bears the burden of overcoming this
presumption by demonstrating that the circuit court's findings are
contrary to the great weight and clear preponderance of the
evidence. Town of Waukechon v. City of Shawano, 53 Wis. 2d 593,
596, 193 N.W.2d 661 (1972).
¶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 Wis. Stat. § 66.0217,
we engage in statutory interpretation. Statutory interpretation
is a question of law that we review de novo. Horizon Bank, Nat'l
Ass'n v. Marshalls Point Retreat LLC, 2018 WI 19, ¶28, 380 Wis. 2d
60, 908 N.W.2d 797.
¶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 Chapter 66 has been abused
under the facts and circumstances of a given case. See Town of
Pleasant Prairie, 75 Wis. 2d at 326-27. To pass muster under the
rule of reason, an annexation must satisfy three requirements:
(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.
8
No. 2018AP2162
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 rule of reason presents a question
of law, which we review de novo . . . ." Id.
¶15 Lastly, we review the circuit court's grant of summary
judgment as to the Petition's compliance with the population
certification requirement in Wis. Stat. § 66.0217(5)(a) using the
same methodology as the circuit court. Green Spring Farms v.
Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987). Summary
judgment shall be granted where the record demonstrates "that there
is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." Wis. Stat.
§ 802.08(2).
III. ANALYSIS
¶16 We first address the Town's claim that the annexation
does not meet the statutory contiguity requirement, as set forth
in Wis. Stat. § 66.0217(3) and interpreted by this court in Mt.
Pleasant I and its progeny. Town of Mt. Pleasant, Racine Cty. v.
City of Racine, Racine Cty., 24 Wis. 2d 41, 127 N.W.2d 757 (1964)
("Mt. Pleasant I"). We next discuss the rule of reason and
determine whether it voids the annexation at issue in this case.
9
No. 2018AP2162
Finally, we consider the Town's procedural challenges to the
Petition as they relate to the signature requirement in
§ 66.0217(3) and the population certification requirement in
§ 66.0217(5)(a).
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. § 66.0217(3) allows
property owners to annex territory that is "contiguous to a city
or village."11 (Emphasis added.) "Contiguous" should be construed
according to its "common and approved usage unless a different
definition has been designated by the statutes." State v. Curiel,
227 Wis. 2d 389, 404, 597 N.W.2d 697 (1999); see also Wis. Stat.
§ 990.01(1). The term "contiguous" is not defined in Chapter 66
of the Wisconsin Statutes.
¶18 To determine the definition of "contiguous" as it
relates to Wis. Stat. § 66.0217(3), we look to the substantial
amount of case law that addresses the term's meaning and
application. "Although finding a single, precise definition of
'contiguous' is difficult, one may discern a trend in Wisconsin's
courts to require at minimum some significant degree of physical
contact between the properties in question." Town of Delavan v.
11Along with the statutory contiguity requirement, Wis. Stat.
§ 66.0217 outlines the procedures related to preparation, notice,
circulation, and filing of such petitions. Direct annexation by
one-half approval, the procedure followed by Kohler, requires
strict compliance. § 66.0217(3); see Town of Burke v. City of
Madison, 225 Wis. 2d 615, 625, 593 N.W.2d 822 (Ct. App. 1999).
10
No. 2018AP2162
City of Delavan, 176 Wis. 2d 516, 528, 500 N.W.2d 268 (1993)
(emphasis added) (citing City of Waukesha v. Salbashian, 128
Wis. 2d 334, 352 n.5, 382 N.W.2d 52 (1986)) (referencing one
dictionary definition of contiguous: "touching along boundaries
often for considerable distances" but stating that "[f]or the
purposes of this decision, we define contiguous as touching or
adjoining."); Town of Waukechon, 53 Wis. 2d at 597 (describing the
proposed annexation as "contiguous to the city for its entire 575-
foot width"). We recognize that each case is fact-specific, and
therefore we decline to define contiguity using a numerical
threshold.
¶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 "a broader definition
of 'contiguous' that includes territory near to, but not actually
touching, the annexing municipality," as it would "place distant
lakeshore property owners at risk of being annexed by neighboring
municipalities"). However, we acknowledge that there can be
situations where contiguous "does not always mean the land must be
touching." Town of Lyons v. City of Lake Geneva, 56 Wis. 2d 331,
336, 202 N.W.2d 228 (1972). For example, in Town of Lyons, we
determined that a 23-foot public road separating the City limits
from the boundary of the annexed land was "close enough to the
city limits to be contiguous" because "a public road should not
destroy the concept of 'contiguous' regardless of ownership." Id.;
see also Town of Delavan, 176 Wis. 2d at 530 (recognizing that a
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No. 2018AP2162
1.5-acre parcel of land separated from the land sought to be
annexed by 400 feet of water was not contiguous, but that the
"trivial lack of contiguity [was] insufficient to void the
annexation" given the "unique facts of th[e] particular case").
¶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
12
No. 2018AP2162
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 four
times that of the border connecting the City with the annexed
territory in Mt. Pleasant I and involves a significant degree of
physical contact between the properties. See Town of Waukechon,
53 Wis. 2d at 597 ("The Town of Waukechon attempts to analogize
[Mt. Pleasant I] with the instant action. We see no similarity
between the cases. The area of proposed annexation herein is
rectangular and is contiguous to the city for its entire 575-foot
width."); see also Town of Lyons, 56 Wis. 2d at 336 ("In the Mt.
Pleasant Case, we held land was not contiguous because only a small
part of it touched the city.") Based on the facts of this case,
12The fifth case, People ex rel. Village of Worth v. Ihde,
177 N.E.2d 313 (Ill. 1961), involved annexation to a highway which
also likely involved a border of less than 100 feet.
13The City, DOA, and the circuit court all cited Mt. Pleasant
II in their discussion of contiguity, despite the fact that the
contiguity of the annexation was not at issue in that case. Town
of Mt. Pleasant v. City of Racine, 28 Wis. 2d 519, 524, 137
N.W.2d 656 (1965) ("Mt. Pleasant II") ("Respondent does not attack
the ordinance on the ground that the territory lacks sufficient
contiguity as was done in the first Mt. Pleasant v. Racine Case.").
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No. 2018AP2162
we conclude that the annexation satisfies the statutory contiguity
requirement in Wis. Stat. § 66.0217(3).
¶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
See, e.g., Town of Lincoln v. City of Whitehall, 2019 WI
14
37, ¶15 n.10, 386 Wis. 2d 354, 925 N.W.2d 520; Town of Delavan v.
City of Delavan, 176 Wis. 2d 516, 528, 500 N.W.2d 268 (1993); Town
of Pleasant Prairie v. City of Kenosha, 75 Wis. 2d 322, 327, 249
14
No. 2018AP2162
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
¶25 An annexation satisfies the rule of reason when three
requirements are met. First, exclusions and irregularities in
boundaries must not be the result of arbitrariness. Town of
Pleasant Prairie, 75 Wis. 2d at 327. Second, some reasonable
present or demonstrable future need for the annexed property must
be shown. Id. Finally, no other factors must exist which would
N.W.2d 581 (1977); Town of Lafayette v. City of Chippewa Falls, 70
Wis. 2d 610, 625, 235 N.W.2d 435 (1975); Town of Center v. City of
Appleton, 70 Wis. 2d 666, 668 n.4, 235 N.W.2d 504 (1975); Town of
Waukesha v. City of Waukesha, 58 Wis. 2d 525, 532, 206 N.W.2d 585
(1973).
15 Justice Rebecca Grassl Bradley's concurrence would sua
sponte abolish the rule of reason, despite the parties' request
that the rule remain intact. Justice Rebecca Grassl Bradley's
concurrence, ¶51. It is not up to us to make or develop arguments
on behalf of the parties. See Industrial Risk Insurers v. American
Eng'g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769
N.W.2d 82 ("[W]e will not abandon our neutrality to develop
arguments."); State v. Pettit, 171 Wis. 2d 627, 647, 492
N.W.2d 633 (Ct. App. 1992) ("We cannot serve as both advocate and
judge."); see also Yorgan v. Durkin, 2006 WI 60, ¶13 n.4, 290
Wis. 2d 671, 715 N.W.2d 160 ("The proper procedure is to have an
issue raised, briefed, and argued by the parties before deciding
it.").
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."
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No. 2018AP2162
constitute an abuse of discretion. Id. We analyze each
requirement in turn.
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
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No. 2018AP2162
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."). Wisconsin courts
have recognized that "there is authority for the proposition that
a court may examine the boundaries of an annexation if it has an
irregular shape even though the boundaries are determined by the
17
No. 2018AP2162
property owners." Town of Campbell v. City of La Crosse, 2003 WI
App 247, ¶26, 268 Wis. 2d 253, 673 N.W.2d 696.16
¶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
16 In 1977, this court in Town of Pleasant Prairie, 75 Wis. 2d
at 342, restated the principle from Mt. Pleasant I that boundaries
drawn by private party petitioners can be scrutinized for
arbitrariness, but only where the annexed area is an "exceptional
shape." Two years later, in Town of Medary v. City of La Crosse,
88 Wis. 2d 101, 277 N.W.2d 310 (Ct. App. 1979) and subsequently in
Town of Menasha v. City of Menasha, 170 Wis. 2d 181, 488 N.W.2d 104
(Ct. App. 1992), the court of appeals repeated this standard. In
Town of Campbell, the court of appeals relied upon "the analysis
in Town of Pleasant Prairie" to conclude that the general shape of
an annexation was not open to challenge in an owner-initiated
annexation. Town of Campbell v. City of La Crosse, 2003 WI App
247, ¶¶26-27, 268 Wis. 2d 253, 673 N.W.2d 696. However, as noted
above, Town of Pleasant Prairie allows for such scrutiny where the
annexed area is an "exceptional shape."
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.
18
No. 2018AP2162
(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 findings regarding the lack of proof are sufficient
and legally support the conclusion that the City did not act as a
"controlling influence" that orchestrated the annexation.
¶31 As to the second exception, this annexation is not an
exceptional shape. The boundaries in this case are not the type
The Town asserts that the City's involvement in presenting
17
Kohler's annexation proposal to the Common Council and in preparing
a pre-annexation agreement equates to influence or control. We
agree with the circuit court that the City merely provided
technical assistance which does not rise to the level of
"dominat[ing] the petitioners so as to have effectively selected
the boundaries." Town of Menasha, 170 Wis. 2d at 192.
19
No. 2018AP2162
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
20
No. 2018AP2162
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
18A court's assessment of whether there is a reasonable need
for the annexation is not an independent evaluation of the best
interest of the parties. Town of Lyons v. City of Lake Geneva, 56
Wis. 2d 331, 338, 202 N.W.2d 228 (1972); see also Town of Medary,
88 Wis. 2d at 122-23 (reasoning that a municipality "is in no
position to negotiate or pick and choose" when a petition is
presented because the statute "does not make any provision for a
city to annex only that portion of territory . . . for which it
has a need. It must annex all of the territory or none of it.").
21
No. 2018AP2162
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
22
No. 2018AP2162
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
23
No. 2018AP2162
¶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 Town asserts that the City abused its discretion by
simply rubber-stamping the annexation and agreeing to support the
golf course development "simply to get more money." The circuit
court found, however, that "none of the facts or reasons given by
the Town show the City abused its discretion in enacting the
ordinance. Initially, many of the alleged 'bad acts' which the
Town identifies are taken out of context and unsupported by the
factual record."19 The record includes evidence of lengthy
Some of these "facts" considered by the circuit court
19
include:
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
24
No. 2018AP2162
deliberations by City officials regarding the annexation, which
supports the circuit court's finding that "City
officials . . . conducted a thorough analysis of the petition
before recommending it to the Common Council for adoption." The
City's actions were aimed at effectuating the annexation requested
by Kohler and were consistent with Kohler's expressed desire to
develop its land into a world championship golf course. See
Sanitary Dist. No. 4-Town of Brookfield v. City of Brookfield,
2009 WI App 47, ¶21, 317 Wis. 2d 532, 767 N.W.2d 316 ("The City's
actions . . . were always consistent with, and in furtherance of,
the property owner's expressed desire. The property owners
initiated the annexation proceeding and were assisted by the City
to accomplish that intent."). The circuit court's findings of
fact are amply supported by the evidence and therefore we conclude
that the Town failed to demonstrate any abuse of discretion under
the third prong of the rule of reason. We conclude that the
annexation satisfies all three prongs of the rule of reason.
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
Wis. Stat. § 66.0217(3)(a)1.
Town and residents that surround the subject
parcel.
25
No. 2018AP2162
¶42 Wisconsin Stat. § 66.0217(3)(a)1. provides, in relevant
part:
(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 Wis. Stat.
§ 66.0217(3)(a)1.b., non-assessed state and city-owned parcels of
land are excluded in calculating the amount of signatures required
to approve annexation. The Town concedes that the Petition
included signatures for over one-half of the owners of real
property in assessed value within the territory, and thus comports
with the plain language of § 66.0217(3)(a)1.b. See State ex rel.
Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110 ("[W]e have repeatedly held that
statutory interpretation 'begins with the language of the statute.
20"Assessed value," as defined by Wis. Stat. § 66.0217(1)(a),
is "the value for general tax purposes as shown on the tax roll
for the year next preceding the filing of any petition for
annexation."
26
No. 2018AP2162
If the meaning of the statute is plain, we ordinarily stop the
inquiry.'" (quoted source omitted)).
¶44 The Town asserts, however, that the City circumvented
the intent of Wis. Stat. § 66.0217(3)(a)1. when it failed to
include hundreds of acres of non-assessed state and city-owned
property to determine the signature requirement. The Town argues
that where the proposed annexation includes a large amount of non-
assessed land, as in the instant case, the petitioner should be
forced to calculate the number of signatures needed by units of
acreage pursuant to § 66.0217(3)(a)1.a. According to the Town,
the omission of State-owned parcels from the calculation
"artificially weighs against the rights of those representing the
petitioned territory to voice their choice for or against
initiation of annexation proceeding." The Town admits that this
is a "new, novel, issue of law" but argues that the omission of
the state and city-owned land otherwise defeats the purpose of
§ 66.0217(3).
¶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 Wis. Stat.
27
No. 2018AP2162
§ 66.0217(3)(a)1.a. We therefore conclude that the Petition
complied with § 66.0217(3)(a)1.
D. Population Certification Requirement
¶46 Finally, the Town asserts that the Petition failed to
certify the population count in accordance with Wis. Stat.
§ 66.0217(5)(a), which provides:
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 Wis.
Stat. § 66.0217(5)(a)." The circuit court relied in part on two
affidavits submitted by DOA employee Erich Schmidtke. Schmidtke
conducted the review of the Petition and averred that by accepting
the petition for a public interest review, DOA "certified" or
confirmed that the Petition satisfied this requirement.
¶48 Schmidtke explained that when there is no federal census
information, DOA employs a multi-step process to "certify as
acceptable" the population estimate or actual population
incorporated within a petition. This process includes obtaining
population information from (1) the annexation petition; (2) the
28
No. 2018AP2162
"Request for Annexation Review" form; and (3) an "Annexation Review
Questionnaire" that the annexing city or village and the annexee
town file with DOA. Schmidtke stated that he relied on population
information in the Request for Annexation Review form and the
petition document,21 and noted that the City and Town also included
population information in their Annexation Review Questionnaires.
After "finding that the population requirement . . . was complied
with, the Department accepted the petition for its review." Based
on Schmidtke's averments, the circuit court found that Schmidtke
"completed the 'process' in which the DOA engages in order to
certify as 'acceptable' the population specified in Kohler's
petition."
¶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, Wis. Stat.
§ 66.0217(5)(a) does not explicitly require DOA to engage in any
formal, specific process or to audit the population information in
order to certify a population estimate or actual population count.
Since it remains undisputed that Schmidtke, on behalf of DOA,
reviewed the population in the Petition and averred that he
21In his affidavits, Schmidtke stated that he reviewed the
Petition for population information; however, it appears that DOA
never received a copy of the Petition. The Town is correct that
DOA received only the Notice of Intention to Circulate an
Annexation Petition, the Request for Annexation Review, and the
Annexation Review Questionnaire.
29
No. 2018AP2162
certified it as acceptable, we uphold the circuit court's grant of
partial summary judgment on this issue.
IV. CONCLUSION
¶50 We conclude that the annexation meets the statutory
contiguity requirement in Wis. Stat. § 66.0217(3) and satisfies
the rule of reason. We further conclude that the Petition complied
with the signature and certification requirements set forth in
§§ 66.0217(3) and (5)(a). Therefore, we affirm the circuit court.
By the Court.—The decision of the circuit court is affirmed.
30
No. 2018AP2162
1
No. 2018AP2162.rgb
¶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 Wis. Stat.
§ 66.0217(3) (2017-18).1 I also agree the annexation petition
complied with the signature requirement of Wis. Stat.
§ 66.0217(3)(a)1 and the Department "certified as acceptable" the
population specified in the petition as required under Wis. Stat.
§ 66.0217(5)(a) (2017-18).2 I write separately, however, because
the majority perpetuates the "rule of reason," a judicially created
doctrine not found in the statutory text.3 I would overturn Town
of Mt. Pleasant v. City of Racine4 ("Mt. Pleasant I")——the case
1 All subsequent references to Wis. Stat. § 66.0217(3) are to
the 2017-18 version unless otherwise indicated.
2 I join parts I, III.C, and III.D of the majority opinion.
3 See, e.g., Town of Fond du Lac v. City of Fond du Lac, 22
Wis. 2d 533, 541, 126 N.W.2d 201 (1964) (discussing the origin of
the principle in cases); Richard W. Cutler, Characteristics of
Land Required for Incorporation or Expansion of a Municipality,
1958 Wis. L. Rev. 6, 27–29 (1958) (crediting the rule of reason's
origin to a 1957 Wisconsin Supreme Court case); Clayton P.
Gillette, Expropriation and Institutional Design in State and
Local Government Law, 80 Va. L. Rev. 625, 681 (1994) (discussing
Mt. Pleasant I and referring to the "judicially created 'rule of
reason'"); Stephen L. Knowles, Comment, The Rule of Reason in
Wisconsin Annexations, 1972 Wis. L. Rev. 1125, 1146 (1972) (calling
the rule of reason a "judicial doctrine"); Walter K. Johnson, The
Wisconsin Experience with State-Level Review of Municipal
Incorporations, Consolidations, and Annexations, 1965 Wis. L. Rev.
462, 474 (1965) (referring to it as the "judicially created 'rule
of reason'"); Robert D. Zeinemann, Overlooked Linkages Between
Municipal Incorporation and Annexation Laws: An In-Depth Look at
Wisconsin's Experience, 39 Urb. Law. 257, 285 (2007) (describing
the rule of reason as "made by the courts"); majority op., ¶24
("The rule of reason is a 'judicially created doctrine[.]'").
4 Town of Mt. Pleasant v. City of Racine ("Mt. Pleasant I"),
24 Wis. 2d 41, 127 N.W.2d 757 (1964).
1
No. 2018AP2162.rgb
responsible for grafting the rule of reason onto the statutory
contiguity requirement for annexation——and abolish the rule of
reason because the judiciary invaded the exclusive authority of
the legislature by rewriting the annexation statute to its liking.
It is "the province and duty of the judicial department to say
what the law is[,]" and not what we think it should be. Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The legislature
conditioned annexations on contiguity, procedural requirements,
and nothing more. This court lacks any authority to modify, tweak
or supplement the legislature's work.
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
2
No. 2018AP2162.rgb
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
3
No. 2018AP2162.rgb
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
4
No. 2018AP2162.rgb
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 had
regulated the matter by statute but that didn't stop the judiciary
from stepping in to tamper with the legislature's policy choices
in order to advance its own. This court should disavow its
decades-old interference with the legislature's exclusive
prerogative to write laws.
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, Wis. Stat.
§ 66.021(2)(a) (1961-62)5 contained one substantive requirement
5 All subsequent references to Wis. Stat. § 66.021(2) are to
the 1961-62 version unless otherwise noted.
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for annexation: contiguity.6 The statutory provision at issue
between the parties in this case retains this sole substantive
requirement.7
¶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").
6 In 1964 the statute provided:
Methods of annexation. Territory contiguous to any city
or village may be annexed thereto in the following ways:
(a)Direct Annexation. . . .
Wis. Stat. § 66.021(2) (emphasis added).
7 Wisconsin Stat. § 66.0217(3) provides:
Other methods of annexation. Subject to ss.
66.0301(6)(d) and 66.0307(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. . . .
(emphasis added).
6
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¶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
three components on which it would condition its approval of an
annexation: "(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." Town of Lafayette, 70
Wis. 2d at 625 (footnote omitted). By inquiring whether the
boundary lines were "reasonable in the sense that they were not
fixed arbitrarily, capriciously, or in the abuse of discretion[,]"
the Mt. Pleasant I court abandoned the statutory text altogether,
instead proclaiming that "[s]hoestring or gerrymander
annexation[s]" do not coincide with legislative "intent" as the
court somehow divined it. Mt. Pleasant I, 24 Wis. 2d at 46.
Without any pretense of ascertaining the meaning of "contiguous"
under the annexation statute, the court held, in conclusory
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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
§ 66.021(2)) ("The majority has engrafted onto the statute the
additional requirement that a proposed annexation is subject to
review under the 'rule of reason' to determine whether the proposed
boundary lines are 'reasonable in the sense that they were not
fixed arbitrarily, capriciously, or in abuse of discretion.'"
(footnote omitted)). In doing so, the court crossed the judicial
boundary of declaring what the law says and intruded on the
legislature's prerogative to proclaim what the law should be.
¶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
8
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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 canon of statutory
interpretation, '[n]othing is to be added to what the text states
or reasonably implies (casus omissus pro omisso habendus est).
That is, a matter not covered is to be treated as not covered.'"
Enbridge Energy Co., Inc. v. Dane Cty., 2019 WI 78, ¶23, 387
Wis. 2d 687, 929 N.W.2d 572 (quoting State ex. rel. Lopez-Quintero
v. Dittman, 2019 WI 58, ¶18, 387 Wis. 2d 50, 928 N.W.2d 480); see
also Wisconsin Ass'n of State Prosecutors v. WERC, 2018 WI 17,
¶45, 380 Wis. 2d 1, 907 N.W.2d 425 ("Nothing is to be added to
what the text states or reasonably implies[.]" (quoting Antonin
Scalia & Brian Garner, Reading Law: The Interpretation of Legal
Texts 93 (2012))); Dawson v. Town of Jackson, 2011 WI 77, ¶42, 336
Wis. 2d 318, 801 N.W.2d 316 ("We decline to read into the statute
8 Reportedly, Judge Learned Hand once implored Justice Oliver
Wendell Holmes to "Do Justice!" As the story goes, Justice Holmes
responded, "That is not my job. My job is to play the game
according to the rules." See Michael Herz, "Do Justice!":
Variations of a Thrice-Told Tale, 82 Va. L. Rev. 111, 111 (1996)
(citing Learned Hand, A Personal Confession, in The Spirit of
Liberty 302, 306–07 (Irving Dilliard ed., 3d ed. 1960)).
9
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words the legislature did not see fit to write." (citation
omitted)).
¶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 Wis. Stat. § 66.021(2) even impliedly
suggesting that the annexation must satisfy the rule of reason,
nor can it connect the plain meaning of "contiguous" to any element
of the rule of reason. See § 66.021(2); majority op., ¶¶20-22
(discussing Mt. Pleasant I's 153 foot border, which the Mt.
Pleasant court held insufficient to meet the statutory contiguity
requirement, while acknowledging the persuasive authority on which
it relied set the line at 100 feet). At least the majority in
this case acknowledges "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 . . . , it
blurred the statutory contiguity and rule of reason analyses."
Majority op., ¶23. The majority also concedes that Mt. Pleasant
I did not actually interpret the statute but instead added
additional hurdles proposed annexations must satisfy in order to
survive judicial scrutiny: "contiguity is a legislative mandate
discrete from the first prong of the judicially created rule of
reason[.]" Id.
¶63 Just like its predecessor statute in 1964, Wis. Stat.
§ 66.0217(3) requires only contiguity for annexations. See
§ 66.0217(3). Preventing "[s]hoestring or gerrymander[ed]
9State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI
58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
10
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annexations" is a policy matter for the Wisconsin Legislature to
adopt, not this court. Mt. Pleasant I blatantly disregarded the
text of the annexation statute, remade the law to its liking, and
should be overruled as both "unsound in principle" and "wrongly
decided." In this case, I would rely on the plain meaning of the
annexation statute and consider only whether Kohler's property is
contiguous to the City of Sheboygan——that is, "[t]ouching at a
point or along a boundary; ADJOINING"; "neighbouring, in close
proximity[]"; "touching, in contact; adjoining." Contiguous,
Black's Law Dictionary (11th ed. 2019); Contiguous, Oxford English
Dictionary (6th ed. 1993). It is. The analysis ends there.
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 have been "first announced in Smith v. Sherry[.]"
Sherry's holding did not create the rule of reason and earlier
courts twisted its language in order to give the rule a misleading
lineage.
¶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 Article 11, Section 3 of the
Wisconsin Constitution, which gives the legislature the power to
organize cities and villages. Sherry, 50 Wis. at 564. The
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annexation was constitutionally invalid because the property was
not "adjacent or contiguous" to the Village, not because of
arbitrary boundary lines or an abuse of discretion. See Sherry,
50 Wis. at 564. The court interpreted cities and villages in
Article 11, Section 3 to "impl[y] an assemblage of inhabitants
living in the vicinity of each other and not separated by any other
intervening civil division of the state." Id. Because six miles
separated the Village from the property in question, Sherry held
"the territory so admitted to be included . . . is an abuse and
violation of that provision of section 3, art. 11, of the
constitution[.]" Id. The court concluded by saying that it was
imposing no constraints on the legislature in fixing boundaries
for cities or villages, "so long as the territory of which [they
are] composed is adjacent or contiguous[.]" Id. at 564-65.
¶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
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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 Wis. Const. art. 11, § 3 ("Cities and villages
organized pursuant to state law may determine[.]"); Knowles, supra
¶54, at 1133 (discussing the same).
¶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)
13
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("[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
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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.
10Even the great purposivists of their time, Henry Hart and
Albert Sacks, dismissed the idea of discerning a collective
legislative intent. See John F. Manning, Without the Pretense of
Legislative Intent, 130 Harv. L. Rev. 2397, 2410 (2017) (citing
Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 1374
(William N. Eskridge, Jr. & Philip P. Frickey eds., Foundation
Press 1994) (1958)).
15
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Parties will remain without any guidance in future annexation
disputes.
¶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]
16
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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]
17
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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 policy preferences,
but the "duty to correctly 'expound' it." Gamble v. United States,
139 S. Ct. 1960, 1982 (2019) (Thomas, J., concurring) (quoting
Letter from J. Madison to N. Trist (Dec. 1831), in 9 The Writings
of James Madison 477 (G. Hunt ed. 1910) (Writings of Madison));
see also Gary Lawson, The Constitutional Case Against Precedent,
17 Harv. J.L. & Pub. Pol'y 23, 26 (1994) ("[A] vital part of the
judicial task is to determine whether a claimed source of
law . . . may be inapplicable . . . because it conflicts with some
hierarchically superior legal source."). Just as the Constitution
reigns supreme over statutory law, so too does statutory law trump
judicial policy making.11 With respect to the rule of reason,
"[w]e should get out of this area, where we have no right to be,
and where we do neither ourselves nor the [state] any good by
remaining." Planned Parenthood of Southeastern Pa. v. Casey, 505
U.S. 833, 1002 (1992) (Scalia, J., concurring in the judgment in
part and dissenting in part). Because its creation reflects
improper overreaching by the judiciary, we should abandon the rule
of reason, regardless of the consequences.12
11See Justice Hagedorn's concurrence, ¶¶76-77 (acknowledging
the rule of reason is "judicial policy-making" and the "rule of
judges" instead of the "rule of law[,]" but nevertheless applying
it as "a fair statement and application of" the doctrine.
12Justice Hagedorn's concurrence recommends a "full hearing
on the merits of this important issue" in order to "ensure that we
are not missing anything" and to identify "the consequences of our
decision" before deciding whether to discard the rule of reason.
Justice Hagedorn's concurrence, ¶78. Continuing to tread on the
18
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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 Wis. Stat. § 66.0217(3). I cannot
join the majority's analysis because its continued adherence to
the rule of reason perpetuates a non-textual interpretation of our
annexation statute, gives life to the antiquated notion of
legislative "intent," and validates judicial policy making.
Because I would overturn Mt. Pleasant I, abolish the rule of
reason, and determine contiguity based solely on the text of the
annexation statute, I respectfully concur.
¶75 I am authorized to state that Justice DANIEL KELLY joins
this concurrence.
exclusive province of the legislature in the interests of prudence
elevates the consequences of our decision making over the statutory
text. "But it is precisely because people differ over what is
sensible and what is desirable that we elect those who will write
our laws——and expect courts to observe what has been written."
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 22 (2012). When this court created the rule of
reason, it observed what the legislature had written, decided it
didn't like it, and replaced the statutory text with what the court
deemed to be a preferable test. Regardless of the consequences,
such an invasion of the legislative's prerogative should not stand.
19
No. 2018AP2162.bh
¶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 Gorsuch tells his law
clerks. The first rule is, "Don't make stuff up." The second
rule is, "When people beg, and say, 'Oh the consequences are so
important,' and when they say, 'You're a terrible, terrible person
if you don't,' just refer back to Rule No. 1."1 A casual read-
through of our cases creating, modifying, and applying the rule of
reason leads to the discomforting notion that the "legal test" the
judiciary has superimposed onto annexation challenges is nothing
more than a fancy-sounding façade for the real agenda: judicial
policy-making pretending to be law.
¶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
1 https://www.wsj.com/articles/the-high-courts-rocky-
mountain-originalist-11567792378.
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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.
2
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1
Town of Wilson v. City of Sheboygan
Combined Opinion