MADISON, Wis. (CN) – The Wisconsin Supreme Court upheld the annexation of a small town’s land by a nearby city to clear the way for a luxury golf course, finding Friday that the land grab satisfied state law requirements but disagreeing over the use of the rule of reason to check a municipality’s powers.
In March 2014, Kohler Co. — a manufacturing company based in Kohler, Wisconsin, with a long history in the state — submitted an application to the town of Wilson for a conditional use permit to build a golf course using property along Lake Michigan in the town’s limits.
The town resisted the move and denied the incomplete application to give other state agencies a chance to weigh in.
Kohler moved forward without the town’s approval, building a string of properties connecting the golf course to the more politically friendly city of Sheboygan, Wilson’s neighbor just to the north, with certain parcels being as thin as 190 feet and not technically part of the golf course. Sheboygan approved Kohler’s annexation in 2017 and rezoned the land at the company’s request, prompting Wilson to seek temporary injunctive relief that the circuit court ultimately denied.
The Wisconsin Court of Appeals punted and petitioned the state Supreme Court for bypass. The parties gathered for convoluted oral arguments before the high court in September, where they split hairs over what defines contiguity and how the annexation looks in light of the rule of reason.
Michael Huitink, an attorney with the Brookfield, Wisconsin, firm Sorrentino Burkert Risch who argued for Wilson, and Stan Riffle, Sheboygan’s counsel from the Municipal Law and Litigation Group based in Waukesha, could not be immediately reached for comment on the high court’s decision Friday.
Friday’s 30-page majority opinion penned by Justice Rebecca Dallet found that the annexation passed the contiguity and rule of reason tests since Kohler and Sheboygan both followed the letter of Wisconsin law when applying and approving the annexation petition.
As far as contiguity is concerned, which the court and the parties had vaguely attempted to define under terms of “oneness” and “touching” and “togetherness” at arguments, Dallet wrote that the annexation “involves a significant degree of physical contact between the properties,” finding the relatively thin connections at certain points to be legally sound.
Dallet next moved to the role of the rule of reason, which Dallet called “a doctrine designed to determine whether the power delegated to cities and village … has been abused under the facts and circumstances of a given case.” Dallet pointed out that the rule of reason dates back to the 1880s and has been applied to check abuses of power in Badger State annexation cases for more than 50 years.
Dallet concluded that the golf course annexation met the rule of reason’s three-prong test for arbitrariness, demonstration of reasonable present or future need for the annexed property and no other factors amounting to an abuse of discretion.
While the high court was unanimous in its decision, some of the court’s conservative-leaning justices condemned the rule of reason and called for it to be deep-sixed.
Justice Rebecca Grassl Bradley slammed the rule of reason in her 19-page concurring opinion, stating “the judiciary invaded the exclusive authority of the legislature by rewriting the annexation statute to its liking” using a rule that is not in the statutory text, essentially accusing the judiciary of legislating from the bench.
Bradley, joined by Justice Daniel Kelly, opined that “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.”
The justice called for abolishing the rule of reason, saying it “perpetuates a non-textual interpretation of our annexation statute, gives life to the antiquated notion of legislative ‘intent,’ and validates judicial policy making.”
Justice Brian Hagedorn wrote a separate two-page concurrence applauding Bradley’s opinion as a “tour de force” which dressed down “interpretive principles that should strike terror into everyone committed to the rule of law rather than the rule of judges.”
Hagedorn called the legal test “nothing more than a fancy-sounding façade for the real agenda: judicial policy making pretending to be law.” He did, however, stop short of demanding the rule’s abolition, pointing out that the parties specifically asked the court in oral arguments not to do so and calling for a full hearing on the merits of the rule before taking any steps to eliminate it.