author: N. PATRICK CROOKS, J. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

text:
    Town of Beloit, Petitioner-Third-Party Defendant-Appellant, v. County of Rock, Respondent-Respondent, v. Belle Zyla, Marvin Prothero, and Green-Rock Audubon Society, Intervenors-Third-Party Plaintiffs-Respondents-Petitioners.
    Supreme Court

      No. 00-1231.

      Oral argument September 10, 2002. —
    Decided March 4, 2003.

    2003 WI 8
    (Also reported in 657 N.W.2d 344.)

      For the intervenors-third-party plaintiffs-respondents-petitioners there were briefs by Joseph R. Cincotta and Schweitzer & Cincotta LLP, Milwaukee, and oral argument by Joseph R. Cincotta.

    For the respondent-respondent there was a brief and oral argument by Eugene R. Dumas, deputy corporation counsel.
    For the petitioner-third-party defendant-appellant, there was a brief by Kenneth W Forbeck and Forbeck, Elliott, Monahan & Schomber, S.C., Beloit, and oral argument by Kenneth W Forbeck.

    An amicus curiae brief was filed by Claire Silver-man, Madison, on behalf of the League of Wisconsin Municipalities.

      An amicus curiae brief was filed by Carol B. Nawrocki, Shawano, on behalf of the Wisconsin Towns Association.
   N. PATRICK CROOKS, J.

¶ 1. Belle Zyla, Marvin Prothero, and the Green-Rock Audubon Society (Intervenors) petitioned for review of a court of appeals decision, which reversed and remanded the decision of the Circuit Court for Rock County, William D. Johnston, Circuit Court Judge. The court of appeals held that the Town of Beloit (town) has the statutory authority to spend public tax monies to develop and sell property in the Heron Bay subdivision, and that the town's goals in developing the subdivision constitute legitimate and valid public purposes.

¶ 2. We affirm the court of appeals decision. In Libertarian Party of Wisconsin v. State, 199 Wis. 2d 790, 809, 546 N.W.2d 424 (1996), this court held that creating jobs and enhancing the tax base were legitimate and valid reasons, along with others, for finding a legislative public purpose in the expenditure of public funds to build the Milwaukee Brewers' Miller Park. Accordingly, we hold that the combination of the town's enunciated goals of creating jobs, promoting orderly growth, increasing the tax base, and preserving and conserving an environmentally sensitive area for the benefit of the citizens of the town is a legitimate and

valid public purpose under Wisconsin statutes, case law, and the United States and Wisconsin Constitutions. Def. Appellant Br. at 20.

¶ 3. In 1999 the Town of Beloit commenced this action in the circuit court when it filed a petition for a writ of certiorari complaining that the respondent, County of Rock, lacked authority to impose certain conditions on the town's proposed subdivision plat. While this certiorari action was pending in the circuit court, Belle Zyla, Marvin Prothero, and the Green-Rock Audubon Society (Intervenors) filed a motion to intervene and a complaint for declaratory judgment, on the basis that the town exceeded its authority in both preparing and approving the subdivision plat and in developing the subdivision without a public purpose.

¶ 4. The town then filed a motion for summary judgment. In its brief in support of the motion and an attached affidavit, the town asserted that, prior to hiring its own engineering firm to plat the property, it sought proposals from private builders. However, the town found all submitted proposals to be unacceptable. Accordingly, the town argued, it was proper for the town to develop its own land as a means of increasing the town's tax base and controlling orderly expansion of the area. Additionally, by creating and enforcing a 300-foot conservation easement along the Rock River, the town asserted it was acting to protect and preserve an environmentally sensitive area. Finally, the town alleged that it acted properly in reviewing its own subdivision proposal because it complied with all of the requirements of Wis. Stat. ch. 236 (1999-2000) by submitting its proposal to all appropriate political bodies.

¶ 5. The Intervenors, including Rock County, filed briefs in opposition to the town's motion. The circuit court denied the town's motion for summary judgment against the Intervenors and instead issued summary judgment in favor of the Intervenors.

¶ 6. The court of appeals reversed the decision that granted summary judgment in favor of the Inter-venors, and instead granted summary judgment against the Intervenors, and remanded the case for further proceedings. The court of appeals held that the town had statutory authority to develop and plat the Heron Bay Subdivision, and that the town's goals in developing Heron Bay constituted a public purpose.

¶ 7. The Intervenors sought review of the court of appeal's decision, regarding the public purpose doctrine. On January 29, 2002, this court accepted review.

¶ 8. The following are stipulated facts. The town currently owns a 20.4 acre parcel of land located in the Town of Beloit, Rock County, along the Rock River. The parcel is known as the "Heron Bay Lands." The Heron Bay Subdivision is a 20.4-acre parcel of property located in the SE 1/4 of the SW 1/4, Section 2, Town of Beloit, Rock County, and located between the Rock River and Walters Road (R. 29). The Heron Bay Lands have been open to and used by members of the public for recreation.

¶ 9. The history of this property prior to 1995 is incomplete. However, according to the record, early owners of this land used it for farming for 30-40 years (R. 39). The land was then purchased by the town and held, off and on, since the mid 1960s (R. 39).

¶ 10. The Caterpillar Company (Caterpillar) purchased the land owned by the town, along with additional parcels from individual property owners, for possible industrial development (R. 23). After encountering some economic problems, Caterpillar decided not to develop the property (R. 39). Thereafter, the town exercised its right to buy back the property and purchased approximately 210 acres from Caterpillar, including the lands originally owned by the town and additional private lands (R. 23). This property became known as the "Prairie Property." Fifty-five acres of the property were designated the "Heron Bay Lands," a portion of which is at issue in this case (R. 29).

¶ 11. In the 1980s, the town's attempt to sell the land to a Beloit businessman, who proposed developing fourteen lots on the then 55-acre parcel, failed (R. 39). Subsequent attempts to develop the land in 1990s were also unsuccessful (R. 39). From 1989 to 1995, the town worked with the Wisconsin Department of Natural Resources (DNR) after it had expressed an interest in purchasing a portion of this property (R. 23, 39). In order to grant the DNR's request to purchase the land, the town divided the property into two parcels (R. 23). The 37-acre parcel was zoned as a Conservancy District while the other 20.4-acre parcel was retained by the Town of Beloit (R. 29). The parcel that the town retained, which eventually became the Heron Bay Subdivision, was zoned as a Single Family Residential District in 1995 (R. 29). In October 1995, the 37-acre parcel was sold to the Department of Natural Resources for the preservation of rare species and to be maintained for public use (R. 23, 29). The town made it clear to the DNR and other interested parties that the 20.4-acre parcel was retained specifically for residential development. In fact, as part of the purchase agreement, the DNR agreed not to pursue purchase of the Heron Bay Subdivision and agreed not to oppose residential development (R. 24).

¶ 12. In 1997, after years of attempted development by private individuals, the town decided to develop the land known as the Heron Bay Subdivision. Initially, the town sought approval for its master plan by the Town Board of the Town of Beloit (Board). After several meetings, the town adopted the Master Plan. The town developed and distributed a Request for Proposal (RFP) to area builders as well as other builders, but did not garner significant interest or acceptable results (R. 24). The town reviewed the various proposals sought and submitted to develop the Heron Bay Subdivision (R. 24). The proposals were rejected because they either had not responded to the request, or the proposals were apparently unacceptable for various reasons (R. 24). As a result of this lack of interest and the inadequacy of the proposals, the town decided that the town would develop the site, agreeing that the town would benefit from the development (R. 24).

¶ 13. At a 1997 Town of Beloit Board of Supervisor's meeting, the town approved a "Master Plan" for the Heron Bay Lands, zoning it for single-family residential housing. At a subsequent meeting in December 1998, the town authorized and approved the expenditure of town tax revenues for planning and platting services to develop the land. The town authorized an engineering firm to produce a plan to develop the Heron Bay Lands into a thirty-six-lot, single-family residential subdivision and to submit the plan to the State of Wisconsin. The town also authorized the bidding of contracts necessary for engineering and construction of the infrastructure. It is the development by the town and sale of the remaining 20.4-acre parcel, known as the Heron Bay Subdivision, which is at issue in this case.

¶ 14. The town considered and approved a preliminary plat for the subdivision. The preliminary plat was forwarded to Rock County for its review and approval. After Rock County's initial review, the subdivision was reduced from thirty-six lots to twenty-four lots. Rock County then conditionally approved the twenty-four-lot preliminary plat subject to various conditions, including the 300-foot-wide environmental easement commencing on the bank of the Rock River and extending the entire eastern border of the property.

¶ 15. The town's Planning Commission then reviewed the preliminary plat. In December 1998, the town authorized its engineers to provide planning and platting services to create what was to be called the Heron Bay Subdivision (R. 29). In January 1999, one month later, the town authorized the engineers to proceed with plans, specifications, and bidding on the Heron Bay Subdivision infrastructure (R. 29).

¶ 16. Although the town ultimately approved the twenty-four-lot preliminary plat, it filed a petition for writ of certiorari in May of 1999, seeking to reverse Rock County's conditional approval based on the town's assertion that Rock County did not have the statutory authority to impose certain conditions.

¶ 17. After the filing of the petition, the town authorized the expenditure of over $600,000 in town tax revenues for the development and construction of waste and "sewerage piping" with the intent that it serve both the future Heron Bay Lands subdivision and over 1500 additional acres of land in the area. See Town of Beloit v. County of Rock, 2001 WI App 256, 249 Wis. 2d 88, 637 N.W.2d 71.

¶ 18. The above facts are stipulated; however, the record reflects that underlying the town's decision to develop the land itself was a desire to create jobs, increase the tax base, and promote orderly growth of single' family housing to benefit members of the community (R. 23). In addition, the record reflects the town's concern over preservation of the environmentally sensitive land. The town ultimately determined that it was its duty to ensure that an ecologically fragile area was properly developed, and the best way to accomplish this goal was to carry out the development itself (R. 30). In carrying out that goal, the town decided to utilize a conservation or environmental easement to preserve the east 300 feet of the subdivision in lieu of less effective restrictive covenants (R. 23).

¶ 19. The issue presented for this court to decide is whether the court of appeals erred in upholding the Town of Beloit's expenditure of public tax monies to develop and sell municipally-owned property in accord with the public purpose doctrine, based on the combined goals of promoting orderly growth, creating jobs, increasing the tax base, and preserving and conserving environmentally sensitive areas.

¶ 20. This case involves a question of whether the Town of Beloit violated the public purpose doctrine. Although there is no specific clause in the Wisconsin Constitution establishing the public purpose doctrine, this court has recognized that the doctrine is firmly accepted as a basic constitutional tenet of the Wisconsin Constitution and the United States Constitution, mandating that public appropriations may not be used for other than public purposes. State ex rel. Bowman v. Barczak, 34 Wis. 2d 57, 62, 148 N.W.2d 683 (1967). Courts are to give great weight and afford very wide discretion to legislative declarations of public purpose, but are not bound by such legislative expressions. State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 205 N.W.2d 784 (1973). It is the duty of this court to determine whether a public purpose can be conceived, which might reasonably be deemed to justify the basis of the duty. Libertarian Party of Wis. v. State, 199 Wis. 2d 790, 809, 546 N.W.2d 424, (1996). As we have stated:

Under the public purpose doctrine, "[w]e are not concerned with the 'wisdom, merits or practicability of the legislature's enactment.' Rather we are to determine whether a 'public purpose can be conceived which might reasonably be deemed to justify or serve as a basis for the expenditure.'" A court can conclude that no public purpose exists only if it is 'clear and palpable' that there can be no benefit to the public."

Jackson v. Benson, 218 Wis. 2d 835, 896, 578 N.W.2d 602 (1998) (citations omitted).

¶ 21. Consequently, a conclusion that no public purpose exists can be determined only if it is "clear and palpable" that there can be no benefit to the public. West Allis v. Milwaukee County, 39 Wis. 2d 356, 377, 159 N.W.2d 36 (1968); Hammermill, 58 Wis. 2d at 56.

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¶ 22. The court of appeals was correct in holding the town had the statutory authority to develop Heron Bay. The town adopted village powers "as early as April, 1949" (R. 24). While neither the Intervenors nor Rock County disputes that the town had authority to act as a subdivider under the general powers granted to a village in Wis. Stat. § 61.34(1), (3) and (5), a brief analysis of the town's statutory authority is necessary for a complete understanding of the public purpose doctrine in Wisconsin.

¶ 23. The Legislature has plenary power to act except where forbidden by the Wisconsin Constitution. Libertarian Party, 199 Wis. 2d at 801. As noted in Heimerl v. Ozaukee County, 256 Wis. 151, 40 N.W.2d 254 (1949) (Broadfoot, J., dissenting) (citing 16 C.J.S., Constitutional Law, 550, sec. 182):

The preamble of our state constitution provides that one of the main purposes in establishing our state government is to promote the general welfare. The police powers of the state are inherent and are only limited by the constitution.
"The real object of the police power, and that indeed which in its broad sense includes every instance of its exercise, is the securing of the general welfare, comfort, and convenience of the people."

Id. at 161 (Broadfoot, J., dissenting). Pursuant to the village powers under Wis. Stat. § 60.l0(2)(c) and Wis. Stat. § 60.22(3) the town may exercise powers relating to villages and conferred on village boards under Chapter 61 of Wis. Stats., except those powers which conflict with statutes relating to towns and town boards. Here, it does not appear that the village powers conflict with statutes relating to towns and town boards. Accordingly, the court of appeals was correct in holding that there was no legal prohibition which prevented the town from subdividing property which it owned pursuant to subsections (1), (3) and (5) of Wis. Stat. § 61.34. See Town of Beloit, 2001 WI App 256 at ¶ 15.

II.

¶ 24. Although the town's authority to act as a subdivider under the general powers granted to a village in Wis. Stat. § 61.34(1), (3) and (5) is not disputed, the creation of the subdivision involved the expenditure of public funds. It is the town's expenditure of tax monies to develop and sell the land in the Heron Bay subdivision that constitutes the central dispute in this case.

¶ 25. Specifically, the Intervenors maintain that a public purpose can only be found when the "subject matter of legislative action is carrying out or implementing a traditional public function, and is public in nature." Pet'r Br. at 18 (citing the two-prong test of State ex rel. Wisconsin Dev. Auth. v. Dammann, 228 Wis. 147, 280 N.W. 698 (1938)). Based on the two-prong test of Dammann, which requires that the public purpose be of public necessity, convenience or welfare, and difficult for individuals to provide for themselves, the Intervenors assert that the "development of a residential for-profit river-front subdivision" is not a traditional public function, and therefore, it fails the first prong of the test rendering the town's expenditures unconstitutional. Pet'r Br. at 24.

¶ 26. In order to address the Intervenor's argument, an analysis of the public purpose doctrine and its application by Wisconsin courts is necessary.

¶ 27. As briefly discussed earlier, although there is no specific language in the state constitution establishing the public purpose doctrine, this court has recognized that the doctrine is firmly accepted as a basic constitutional tenet mandating that public appropriations may not be used for other than public purposes. State ex rel. Bowman v. Barczak, 34 Wis. 2d 57, 62, 148 N.W.2d 683 (1967); State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 47-48, 205 N.W.2d 784 (1973). The public purpose doctrine commands that public funds be used only for public purposes. State ex rel. Warren v. Reuter, 44 Wis. 2d 201, 211, 170 N.W.2d 790 (1969); State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 414, 208 N.W.2d 780 (1973). In Reuter, this court described the public purpose concept as fluid:

"[T]he concept of public purpose is a fluid one and varies from time to time, from age to age, as the government and its people change. Essentially, public purpose depends on what the people expect and want their government to do for the society as a whole and in this growth of expectation, that which often starts as hope ends in entitlement."

Reuter, 44 Wis. 2d 201, 213. As a result, it is a well-settled rule that the legislative body determines what constitutes a public purpose, and that "[C]ourts will not interfere unless at first blush the act appears to be so obviously designed in all its principal parts to benefit private persons and so indirectly or remotely to affect the public interest that it constitutes the taking of property of the taxpayers for private use." State ex rel. Bowman v. Barczak, 34 Wis. 2d 57 at 64 (quoting State ex rel. Wisconsin Dev. Auth. v. Dammann, 228 Wis. 147, 182, 277 N.W. 278, 280 N.W. 698 (1938)).

¶ 28. Although courts are not bound by legislative expressions of public purposes, they nevertheless have a constitutional burden to examine legislative actions for the existence of a public purpose pursuant to the Wisconsin Constitution. Nusbaum, 59 Wis. 2d 391. However, the court's duties are limited to determining whether the legislation contravenes the provisions of the constitution. The presumption of constitutionality is applicable in making such a determination. Hammermill, 58 Wis. 2d at 46-47. As such, courts are to give great weight to the opinion of the legislative body, and "[i]f any public purpose can be conceived which might rationally justify the expenditure, the constitutional test is satisfied." Bishop v. City of Burlington, 2001 WI App 154, ¶ 11, 246 Wis. 2d 879, 631 N.W.2d 656 (citations omitted). Consequently, a court will conclude that there is no public purpose only if it is "clear and palpable that there can be no benefit to the public". Id. (citations omitted).

¶ 29. In determining whether a public purpose exists, courts have considered whether the subject matter or commodity of the expenditure is one of "public necessity, convenience or welfare," as well as the difficulty private individuals have in providing the benefit for themselves. Dammann, 228 Wis. 2d at 182; see also Libertarian Party, 199 Wis. 2d at 810. Courts also look to see if the benefit to the public is direct or remote. Bowman, 34 Wis. 2d at 64. Additionally, provided that the primary purpose of the expenditure is designed for a public purpose, any direct or incidental private benefit does not destroy the public purpose and render the expenditure unconstitutional. Libertarian Party, 199 Wis. 2d at 810.

¶ 30. Because of the accepted view that local governments are often in the best position to determine the needs of the public in that locality, Wisconsin municipalities have traditionally been given wide discretion to determine whether a public expenditure is warranted due to public necessity, convenience, or welfare. As such, the public purpose doctrine has been broadly interpreted.

¶ 31. A review of Wisconsin case law illustrates that the trend of Wisconsin courts is to extend the concept of public purpose.

¶ 32. In Bowman, 34 Wis. 2d at 64-65, the industrial development through the creation of separate county agencies and bond issues, pursuant to Wis. Stat. § 59.071, was determined to be a valid constitutional enactment as it related to a declaration of public purpose. In West Allis v. Milwaukee County, 39 Wis. 2d 356, 159 N.W.2d 36 (1968), construction of incinerators and waste disposal facilities was considered a public purpose. In addition, financial aid to the Marquette School of Medicine (now the Medical College of Wisconsin), a private nonprofit corporation, was upheld on the premise that public health is a public purpose. See State ex rel. Warren v. Reuter, 44 Wis. 2d 201, 170 N.W.2d 790 (1969). This court upheld the industrial bonding law under Wis. Stat.. § 66.521 (1969), as a public purpose, because the protection of the economic interests of the general public fell within the scope of promotion of the general welfare. Hammermill, 58 Wis. 2d at 55-56. Similarly, the elimination of unsafe, unsanitary and overcrowded housing was found to promote the overall public purpose of providing stable residences for those of lower income. Nusbaum, 59 Wis. 2d 391.

¶ 33. A few years later, this court upheld the creation and operation of the Wisconsin solid waste recycling authority, in part because "recycling can be defined as a means of garbage collection, and, as such, has been denominated as clearly a matter justifying expenditure of public funds." Wisconsin Solid Waste Recycling Auth. v. Earl, 70 Wis. 2d 464, 480-81, 235 N.W.2d 648 (1975).

¶ 34. Recently, Wisconsin courts have continued the liberal application of the public purpose doctrine. In 2001, the court of appeals held that the construction of a parking lot to promote rehabilitation of the downtown area was held to be a public purpose. Bishop v. City of Burlington, 2001 WI App 154, ¶ 11, 246 Wis. 2d 879, 631 N.W.2d 656 (citations omitted). In a similar vein, a city's expenditure of funds to increase the tax base and generally enhance the economic climate of the community was held to satisfy the public purpose doctrine. Alexander v. City of Madison, 2001 WI App 208, 247 Wis. 2d 576, 634 N.W.2d 577.

¶ 35. Most significantly, this court was recently presented with the question of whether the expenditure of public funds for the construction of the new Milwaukee Brewers' Miller Park satisfied the public purpose doctrine. The purported goals of creating jobs and enhancing the tax base were held to be valid reasons, along with other reasons, by this court. In our analysis, we recognized that enhancing the tax base and creation of new jobs are legitimate and valid public purposes, and held that:

The purpose of the Stadium Act is to promote the welfare and prosperity of this state by maintaining and increasing the career and job opportunities of its citizens and by protecting and enhancing the tax base on which state and local governments depend upon. It is clear that the community as a whole will benefit from the expenditures of these public funds. Creation of new jobs is of vital importance to the State of Wisconsin and economic development is a proper function of our government.

Libertarian Party, 199 Wis. 2d at 826.

¶ 36. Accordingly, the goal of increasing the tax base, as well as creation of new jobs, has been recognized by this court, and other Wisconsin courts to be a legitimate and valid public purpose justifying the expenditure of public funds. Id.; Alexander, 2001 WI App 208.

¶ 37. In addition to Wisconsin case law acknowledging the town's expenditures here as involving traditionally and expressly recognized public purposes, it is clear from the record that the public welfare has been, and continues to be, the basis of the town's decision-making process. See Dammann, 228 Wis. at 182, (whether the subject matter or commodity of the expenditure is one of "public necessity, convenience or welfare").

¶ 38. As discussed previously, the town originally owned the property in dispute and sold it to the Caterpillar Company for purposes of industrial development. Caterpillar determined not to develop the site and the town repurchased the land. In the 1980s the town failed to sell the land to a developer (R. 39). Attempts to develop the land in the 1990s were similarly unsuccessful. Id.

¶ 39. Nevertheless, the town, as part of its duties to the citizens of the town, continued to find ways to utilize the land for the public benefit. In order to preserve the environmentally sensitive land, the town worked with the DNR from 1989 to 1995, and eventually sold 37 acres to the DNR in October of 1995, for the preservation of rare species and to be maintained for public use (R. 23, 29).

¶ 40. In 1997, after years of attempted development by private individuals, the town itself decided to develop the land known as the Heron Bay Subdivision.

¶ 41. The record is replete with references to the underlying reasons for the town's decision to develop the Heron Bay Subdivision. In particular, the town was motivated to develop the land by its desire to create jobs, expand the tax base and create an orderly growth of single family housing for the benefit of members of the community (R. 23).

¶ 42. The town was also concerned with the environmental impact that a subdivision would have in this ecologically sensitive area (R. 30). As a result of that concern, the town ultimately determined that it was its duty to ensure that an ecologically fragile area was properly developed and that the best way to accomplish this goal was to carry out the development itself (R. 30). As a result of the review process by the several agencies, the size of the subdivision was reduced from thirty-six (36) to twenty-four (24) lots, the entrances were changed, and an environmental corridor was created (R. 23).

¶ 43. Thus, contrary to the Intervenors argument that the court of appeals overlooked the two-prong test of Dammann, the record clearly indicates that the town acted on behalf of the public welfare. It is necessary to comment on the argument of the Intervenors, set forth in their initial brief and at oral argument that the court of appeals decision weakens the protections afforded by the public purpose and public use requirements. Pet'r Br. at 21-23 (citing the takings provision of the Wisconsin Constitution Article I, Section 13). While the Intervenors may be correct in asserting that the reason for the public purpose requirement and the public use clause under the doctrine of eminent domain is to protect individual property rights against the government, their argument that the court of appeals decision weakens not only the public purpose limitations, but also the protections of the public use clause fails. The eminent domain provisions of the 5th amendment establish that government may take private property if two requirements are met: (1) a public use has been determined; and, (2) just compensation is paid. U.S. Const, amend. V Article I, Section 13 of the Wisconsin Constitution also states that "[t]he property of no person shall be taken for public use without just compensation therefor." Here, the property at issue was not private property being taken. To the contrary, the property was currently owned by the town, and pursuant to Wis. Stat. § 61.34(3), the town has the authority to sell and subdivide the property. An entirely separate statute deals with a town's authority to condemn property under eminent domain. See Wis. Stat. ch. 32.

¶ 44. Although the test under the public use clause, like the test under the public purpose doctrine, is deferential to the legislative determination, the analyses are not identical. In any event, "[a] purely private taking could not withstand the scrutiny of the public use requirement." Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 245 (1984). See also Southwestern Ill. Dev. Auth. v. Nat'l City Envtl., 768 N.E.2d 1, 8-9 (Ill. 2002):

While the difference between a public purpose and a public use may appear to be purely semantic, and the line between the two terms has blurred somewhat in recent years, a distinction still exists and is essential to this case .... [The] flexibility [in terminology] does not equate to unfettered ability to exercise takings beyond constitutional boundaries.

"[E]minent domain cannot be employed to take private property for a predominantly Private use; it is, rather, the means provided by the constitution for an assertion of the public interest and is predicated upon the proposition that the private property sought is for a necessary public use." Baycol, Inc. v. Downtown Dev. Auth. of City of Fort Lauderdale, 315 So.2d 451, 455. However, because this is not in fact a takings case, we need not and do not address whether the asserted public purposes of the Heron Bay project would be sufficient to sustain a challenge under the public use clauses of the Fifth Amendment and Article I, Section 13. Given the history surrounding the property at issue, it seems clear that the combination of the town's enunciated goals would be difficult for individuals to achieve by themselves.

¶ 45. In addition, the Intervenors maintain that the town's pursuit of profit from the development is not allowed under the public purpose doctrine. In support of that position, the Intervenors rely on Heimerl v. Ozaukee County, 256 Wis. 151, 40 N.W.2d 564 (1949). In that case, Ozaukee County attempted to enter into a contract to build private driveways for local residents and others using county employees and resources pursuant to Wis. Stat. § 80.106 (1947). The court there held: (1) that the Ozaukee County resolution was invalid, (2) that a public purpose was not satisfied because the benefit must be "direct and not merely indirect or remote." Id. at 157 (citing Dammann, 228 Wis. 2d at 180).

¶ 46. However, as noted by the court of appeals, there is nothing in Heimerl to suggest that municipalities may never engage in traditionally private business; rather, in that case, the court found that no public purpose was satisfied by Ozaukee County's expenditure of public funds to construct private driveways. Town of Beloit, 2001 WI App 256 at ¶ 28. As long as the primary purpose of the expenditure is for a public purpose, the fact that private individuals directly or indirectly benefit does not render the expenditure unconstitutional. Libertarian Party, 199 Wis. 2d at 810. While certain private individuals may indirectly benefit from the town's development, there are identifiable public purposes behind the activity. The town is not attempting to promote the expansion of a particular industry as prohibited by Hermann v. City of Lake Mills, 275 Wis. 537, 539-543, 82 N.W.2d 167 (1957), nor is the town constructing the subdivision solely for the benefit of private owners as prohibited in Heimerl v. Ozaukee County, 256 Wis. 151, 40 N.W.2d 564 (1949).

¶ 47. Finally, as noted by the town, any profit realized from the sale of the subdivision would in fact benefit the Town of Beloit in that the profit would go into the Town Treasury and ultimately benefit all of the citizens of the town by way of decreased taxes and reduced debt. (See Def. Appellant Br. at 29.)

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¶ 48. In summary, the Town of Beloit had the statutory authority to subdivide and sell the property at issue. In addition, this court has recognized, pursuant to our decision in Libertarian Party, that purposes for legislative action such as increasing the tax base and creation of new jobs, along with other reasons, are legitimate public purposes justifying the expenditure of public funds. The expenditures by the Town of Beloit to develop and sell property in the subdivision are not in contravention of the United States and Wisconsin Constitutions, nor in violation of statutory provisions.

¶ 49. This court holds that the combination of goals here of creating jobs, promoting orderly growth, enhancing the tax base, and preserving and conserving environmentally sensitive lands is a legitimate and valid public purpose justifying the expenditure of public funds by the Town of Beloit. Accordingly, we affirm the court of appeals decision.

By the Court. — The decision of the court of appeals is affirmed.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 50. (dissenting). I would affirm the order of the circuit court granting summary judgment to the inter-venors on the ground that the town's proposed expenditure for the development of the subdivision did not serve a public purpose.

¶ 51. An expenditure is for a public purpose if it provides a direct advantage or benefit to the public at large. It is not for a public purpose if the advantage to the public is indirect, remote, or uncertain.

¶ 52. The constitutional public purpose test is satisfied when the purposes expressed by the legislative body or "conceived" by the court rationally justify the expenditure. In determining whether a public purpose exists the judiciary accords the legislative branch deference and thus plays a limited role. Nevertheless, the court does not merely rubber-stamp government expenditures. The state and federal constitutions demand that courts perform their independent function to assess the realistic operation of the law to protect the public. A court "is not bound by the legislature's enactment or declarations regarding its purpose, for it is the court's constitutional burden to examine the challenged legislation and assess its realistic operation."

¶ 53. The combination of goals enunciated by the majority opinion as constituting a legitimate and valid public purpose for the Town of Beloit's expenditures properly includes a list of benefits that might conceivably, in some circumstances, provide a direct benefit to taxpayers and thereby satisfy the public purpose doctrine. An expenditure of funds that is legitimately designed to create jobs, promote orderly growth, increase the tax base, and preserve an environmentally sensitive area is made for a public purpose.

¶ 54. I dissent in this case, however, to express my conviction that some of the goals on which the majority opinion rests its conclusion are merely assertions unsupported by the facts of this case while others are admittedly hoped for but distant outcomes, not justifications. The public purpose doctrine becomes a charade if a town may justify expenditures by merely offering enough of the proper buzzwords, "job creation," "orderly growth," "increasing the tax base," and "environment concerns," without any facts to back up the assertions. Moreover, judicial review cannot begin and end simply with the recitation of those buzzwords, without any analysis.

¶ 55. I dissent because I conclude on the basis of this record that it is clear beyond a reasonable doubt that the taxpayers of the Town of Beloit will be paying taxes to support the sale of lots for the future construction of private housing from which any benefit to the taxpayers is indirect, remote, and uncertain.

¶ 56. I also write separately to object strenuously and vehemently to the continuing inclination of this court to reach-out-and-decide-issues-not-before-the-court, whether it does so off-handedly in footnotes or squarely in the opinion's text.

I — I

¶ 57. This case is before the court on summary judgment and so our analysis is based upon stipulated facts and affidavits. The parties' stipulation regarding the public purpose states only that the development is based on a policy decision that the town will be able to sell the lots to private individuals, realize a profit, expand the town's tax base, and open up the northwest side of the town in an orderly planned manner. The affidavits do not discuss any particular public purpose except in passing and in conclusory terms. Indeed, analysis of the record exposes the town's asserted justifications and those conceived of by the majority of this court as nothing more than a recitation of buzzwords.

¶ 58. I begin by looking at the four justifications upon which the majority opinion rests its holding: job creation, expanding the tax base, promoting orderly growth, and environmental conservation.

¶ 59. The majority opinion lists job creation as an express goal of the town's expenditure in this case, despite the fact that the town did not articulate that benefit as a goal in its stipulation, brief, or oral argument. Indeed, there is no evidence in the record that the Town of Beloit ever intended the expenditure of monies to develop and sell property in the Heron Bay subdivision to create jobs, let alone that the expenditure would in fact create jobs.

¶ 60. The majority opinion' includes this noble public goal based solely upon a single affidavit from the town's attorney, asserting in broad terms, not necessarily related to this subdivision development, that "the Town of Beloit has a history of leading development for the benefit of its citizens. The purpose of development has been to develop jobs, a greater tax base for the community and places for citizens to live."

¶ 61. No evidence appears in the record of the types of jobs that would be created in this case, who would receive those jobs, or how long those jobs would last. The only jobs immediately on the horizon may be jobs related to development of the subdivision. If homes are constructed in the future, one-time construction jobs might be made available in the community. A public purpose cannot rest on conjecture alone.

¶ 62. The court's emphasis on the public purpose of preservation of an environmentally sensitive strip of land along the Rock River also amounts to reliance on buzzwords. This case began as a suit by the Town of Beloit challenging conditions that the County of Rock placed upon its approval for the development of the Heron Bay lands. One of the challenged conditions was that a 300-foot strip of land along the Rock River be dedicated as park and open space that would allow it to be open to the public. The Town of Beloit rejected this approach to environmental conservation, arguing that the town had a better plan: preserve this area by extending the lots all the way to the river and imposing restrictive covenants prohibiting development in this area without permission of the lot owners or the town.

¶ 63. The validity of this environmental condition will apparently still be before the circuit court. The court of appeals noted that "because there seems to be a factual dispute whether the town will voluntarily create such an easement, we decline to consider whether the easement is an additional public purpose." The majority opinion apparently feels no such restraint.

¶ 64. In any event, it is unclear why any expenditure of funds for subdivision improvement is necessary for environmental protection of land the town owns along the river. The monies expended go to the development of the sites, not the creation or enforcement of any environmental easement or covenant. According to the parties' stipulation, the public can access these lands for recreation and enjoyment at the present time. To conclude that the town is justified in expending funds for sewer, water, roads, gas, electricity, storm sewer management and any other appurtenances necessary for development of the subdivision for sale for homes because the public would benefit from no development on a particular strip of town-owned land is doublespeak.

¶ 65. The two other goals in the combination of objectives the majority opinion says supports the expenditures for a public purpose are the promotion of orderly growth and increasing the tax base. The town, however, makes no showing of the relationship of the subdivision to orderly growth.. Orderly growth is accomplished by a master plan, zoning codes, and regulation of private land developers. The Town of Beloit has such a master plan in place. How the town is promoting orderly growth by development of the subdivision is therefore unclear. The majority opinion appears to have accepted the town's mere suggestion of promoting orderly growth. It certainly cannot base its conclusion on facts because the record is devoid of any such facts.

¶ 66. The final objective of the expenditures is to increase the tax base. The tax base will increase if the lots are sold and houses are constructed. Yet the stipulation states that the "Town has not sold any portion of the Heron Bay Lands as of this date [December 7, 1999]. The Town has no guarantee that anyone will purchase any of the future residential lots. ..."

¶ 67. The majority opinion's combination of goals justifying the expenditures in this case thus boils down to this: the expenditure serves an acceptable public purpose because the town's tax base might be enhanced. I disagree with this position. An enhanced tax base from the sale of land and the construction of homes is an indirect, remote, and uncertain benefit of the expenditure in the present case and is not a sufficient public purpose to justify the town's running a for-profit real estate development business and engaging in the nontraditional enterprise of building residential home sites.

¶ 68. Next we turn to the two additional goals the town asserted as justifications for the expenditure in this case that the majority opinion rightly ignores. Both of them are similarly indirect, remote, and too uncertain to constitute public purposes.

¶ 69. First, the town freely admits in the stipulation that it is acting with the hope of making a profit. The town has the power to sell property. The majority opinion goes to great length to explain this statutory authority. Even where a government entity acts pursuant to a valid law, however, it is still subject to the constitution and the public purpose doctrine. The issue in this case is whether the town may expend funds for subdivision development to make a bigger profit on the sale. No evidence was presented analyzing either the expected revenue or market demand for the lots. The justification of a hoped-for profit, pursued to its logical end, would justify the expenditure of public funds for any potentially profitable endeavor in which the town seeks to engage. That cannot be what the public purpose doctrine means.

¶ 70. Second, the affidavit from the town attorney asserts in broad terms, not necessarily related to this subdivision development, that development in the town is to provide places for citizens to live. Nothing in the record evidences a need for single-family residential housing or the lack of private capital to develop such housing. Several private ventures proposed development of the land, but the Town rejected the proposals. In Heimerl v. Ozaukee County, 256 Wis. 151, 40 N.W.2d 564 (1949), the court held that building private driveways was not "allied with a public purpose" and declared the expenditures unconstitutional. Similarly, the development of river front lots in and of itself is not allied with a public purpose.

¶ 71. The public purpose doctrine demands deference to the legislative branches of government. Nevertheless, the court must examine the operational facts concerning government expenditures in order to determine whether a direct benefit to the public results. No facts exist in the record in the present case or can be conceived by the court to support a public purpose. I therefore conclude, as did the circuit court, that the possibility of public benefit is too indirect, remote, and uncertain to sustain the expenditures.

I — I I — !

¶ 72. There is a growing tendency for this court to reach out and decide issues that are neither squarely presented nor adequately briefed and argued by the parties. In the present case, the majority opinion does exactly that in its discussion of the relationship between the public purpose doctrine and the public use doctrine under eminent domain. Specifically, the majority opinion declares that "[although the test under the public use clause, like the test under the public purpose doctrine, is deferential to the legislative determination, the analyses are not identical." Because I believe that this tendency is detrimental to the development of Wisconsin law, I dissent.

¶ 73. My dispute is not with the correctness of the legal analysis or conclusion the majority opinion reaches with regards to public purpose and public use. I do not know whether the majority opinion is correct. The majority opinion offers no authority for these statements of law. It cites cases from other jurisdictions relating to public use that do not bind this court, and I do not understand the parenthetical comments included or the purpose of citing these cases.

¶ 74. My gripe is with the very existence of the discussion in the present case. The majority opinion's discussion is pure, unadulterated dicta, and it has no place in the court's opinion. The intervenors' brief merely cautions that a broad definition of public purpose might result in a broad definition of public use in eminent domain law, but neither the opposing parties nor amici argued or briefed the issue.

¶ 75. The dangers of this court's inclination to reach out either in the text or in a footnote and decide an issue not before it, without full inquiry and without full discussion, are graphically illustrated in State v. Petty, 201 Wis. 2d 337, 548 N.W.2d 817 (1996), and State v. Hansen, 2001 WI 53, 243 Wis. 2d 328, 347, 627 N.W.2d 195.

¶ 76. In footnote 10 of the Petty decision, the court stated that it need not and therefore would not address a particular issue. In footnote 13, however, the Petty court then proceeded, in a cursory and superficial manner, to address the issue it previously stated it would not address.

¶ 77. The very issue referred to in footnotes 10 and 13 in Petty then reached the court in State v. Hansen. The Hansen court, discussing the conflicting Petty footnotes and the Petty court's incomplete inquiry into the issue, refused to abide by Petty footnote 13, characterizing the footnote as "providing non-essential commentary." Hansen, 243 Wis. 2d 328, ¶ 32. This characterization, however, is problematic under Wisconsin law. Justice Wilcox, the author of the Petty opinion, and Justice Crooks, the author of the majority opinion in the present case, argued in their dissent in Hansen that it is the rule in Wisconsin that a discussion of issues not decisive of a controversy is a binding judicial act, not dicta. See Hansen, 243 Wis. 2d 328, ¶ 60 (Wilcox, J., dissenting) (citing State v. Kruse, 101 Wis. 2d 387, 392, 305 N.W.2d 85 (1981)).

¶ 78. The relationship between the public purpose doctrine and the public use doctrine under eminent domain will inevitably be raised in a case before this court. When that happens, some litigant will argue that the majority opinion is an obstacle to a thorough, thoughtful, and fully briefed consideration of the issue, asserting the rule of stare decisis and pointing out that the majority's discussion is binding precedent and not mere dicta.

¶ 79. The majority's discussion of the relationship between public purpose and public use under eminent domain, however, is mere dicta, and should the issue ever squarely present itself in this court, litigants and justices will be wise to abide by the other line of Wisconsin cases that assert the generally accepted doctrine that "a statement not addressed to the question before the court or necessary for its decision" is dictum, Am. Family Mut. Ins. Co. v. Shannon, 120 Wis. 2d 560, 565, 356 N.W.2d 175 (1984), and not binding on the court, Reiter v. Dyken, 95 Wis. 2d 461, 474, 290 N.W.2d 510 (1980).

¶ 80. For the reasons set forth, I dissent.

¶ 81. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.

       The word "town" refers to actions taken by the town's officials, such as the Town Board, and the Town Administrator unless otherwise indicated.

       Rock County (county) joins the Intervenors in this action. As a result, all references to the Intervenors include Rock County.

        See also, Town Attorney Kenneth Forbeck Affidavit, ¶ 23 stating that "the [town's] purpose of development has been to develop jobs, a greater tax base for the community and places for its citizens to live."

       The County of Rock (county) granted approval for the development of the Heron Bay lands conditioned upon seven modifications. The Town of Beloit (town) challenged only one of these conditions, which pertained to the best method for preserving the 300-foot area along the Rock River. At the Rock County Planning and Development Committee (committee) Meeting of April 7, 1999, the committee discussed its staff recommendations regarding conditions for approval of the Heron Bay Subdivision proposal from the Town of Beloit. (Intervenors-Third-Party-Pls.'-Resp't-Pet'r App. at 63-76.) The following seven conditions were outlined.
      The first condition advanced hy the committee required two access points into the division, while the second condition called for road name changes at each direction change in the road. Id. at 65. The third requirement regarding storm water runoff on site was resolved between the town and county engineers. Id. The fourth condition required that 300 feet along the Rock River be dedicated as park and open space which would allow it to be open to the public, left in its natural state and subject to restrictive covenants. Id. The fifth condition required the subdivision lots to be redrawn while the sixth called for a green space easement to preserve the natural vegetation, which in turn would act as a buffer zone for the DNR natural area. Id. at 66. Finally, the seventh condition provided by the county required a ten-foot walkway to the park and open space from Heron Circle. Id.

      The Town of Beloit municipal attorney, Kenneth Forbeck, represented the town at this meeting. He indicated that the town would acquiesce to many of the conditions set forth by the county, except for the fourth condition requiring dedication of the 300-foot area along the Rock River as public lands. Id. at 69. Forbeck stated that the town believed the best way to preserve this area would be to prevent it from being overrun by the public. Id. at 75. To prevent this from happening, the town proposed extending the lots that ran along the river to include the 300-foot area of concern by the county and controlling the use of this area through restrictive covenants thereby prohibiting development in this area without permission. Id. The town also desired to enact an environmental easement in addition to the restrictive covenants that would equip the town with the ability to enforce the restrictions. Id. at 76.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

       Although the briefs filed by the town and the Intervenors refer to the parcel of land being 35 acres or more, the record reflects, in the stipulated facts, that "[u]p until 1995, the town owned an additional 37 acres of land directly to the south and contiguous to the Heron Bay Lands." We note that the 55 acres designated as the "Heron Bay Lands," less the 37 acres sold to the Department of Natural Resources, leaves less than the 20.4 acres the record reflects were retained for residential development. This discrepancy is not a determinative factor in our decision.

       The record reflects that the town initially intended to preserve this conservancy or environmental area by the use of restrictive covenants. Use of such restrictive covenants was discussed at workshops in February 1999. (Savage, Town Administrator, Aff.) (R. 24).

         See State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 413 n.8, 208 N.W2d 780 (1973):
      The origin of the public purpose doctrine has been variously attributed by this court to the due process and equal protection clauses of the state and federal constitutions, State ex rel. Wisconsin Development Authority v. Dammann (1938), 228 Wis. 147, 277 N.W. 278, 280 N.W. 698; art. iy sec. 4, of the United States Constitution, which guarantees to every state a republican form of government, Heimerl v. Ozaukee County (1949), 256 Wis. 151, 40 N.W.2d 564; and art. VIII, sec. 2, of the Wisconsin Constitution which provides that no money shall be paid out of the treasury except in pursuance of an appropriation by law, State ex rel. La Follette v. Reuter (1967), 33 Wis. 2d 384, 147 N.W2d 304. Other authors have attributed the doctrine to judicial articulation of the belief that governmental power should be used for the benefit of the entire community. Mills, The Public Purpose Doctrine in Wisconsin, 1957 Wis. L. Rev. 40. See also: State ex rel. Bowman v.

        Barczark (1967), 34 Wis. 2d 57, 62, 63, 148 N.W.2d 683; Eich, A New Look At The Internal Improvements And Public Purpose Rules, 1970 Wis. L. Rev. 1115.

       61.34 Powers of village board. (1) GENERAL GRANT. Except as otherwise provided by law, the village board shall have the management and control of the village property, finances, highways, streets, navigable waters, and the public service, and shall have power to act for the government and good order of the village, for its commercial benefit and for the health, safety, welfare and convenience of the public, and may carry its powers into effect by license, regulation, suppression, borrowing, taxation, special assessment, appropriation, fine, imprisonment, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants and shall be limited only by express language.
      (3) ACQUISITION AND DISPOSAL OF PROPERTY. The village board may acquire property, real or personal, within or outside the village, for parks, libraries, recreation, beautification, streets, water systems, sewage or waste disposal, harbors, improvement of watercourses, public grounds, vehicle parking areas, and for any other public purpose; may acquire real property within or contiguous to the village, by means other than condemnation, for industrial sites; may improve and beautify the same; may construct, own, lease and maintain buildings on such property for instruction, recreation, amusement and other public purposes; and may sell and convey such property. Condemnation shall be provided by ch. 32.
      (5) CONSTRUCTION OF POWERS. For the purpose of giving to villages the largest measure of self-improvement in accordance with the spirit of article XI, section 3, of the constitution it is hereby declared that this chapter shall be liberally construed in favor of the rights, powers, and privileges of villages to promote the general welfare, peace, good order and prosperity of such villages and the inhabitants thereof.

       60.10(2) (c). Exercise of village powers. Authorize the town board to exercise powers of a village board under s. 60.22(3). A resolution adopted under this paragraph is general and continuing.

       60.22 General powers and duties. The town board:
      (3) VILLAGE POWERS. If authorized under s. 60.10(2)(c), may exercise powers relating to villages and conferred on village hoards under ch. 61, except those powers which conflict with statutes relating to towns and town boards.

        Id.

       See Wis. Stat. §§ 60.10(2), 61.34(3) and 60.10(2)(g).

        State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 55-56, 205 N.W.2d 784 (1973) (holding that "[t]he trend of both legislative enactments and judicial decisions is to extend [the public purpose] concept... in considering the demands upon municipal governments to provide for the needs of the citizens"); State ex rel. Bowman v. Barczak, 34 Wis. 2d 57, 64, 148 N.W.2d 683 (1967) (holding that "the tendency of later cases is toward greater liberality in characterizing taxes or appropriations as public in purpose ...").

       The following exchange took place at oral argument:
      Justice Diane S. Sykes: If I could refocus us on the legal question that's presented here and that is the public purpose doctrine. Is there any distinction between the public purpose doctrine as a constitutional doctrine and the public use requirement in the takings law?
      Attorney Kenneth W Forbeck (representing the Town of Beloit): The public use requirement in what now?
      Justice Sykes: In the takings law under the 5th amendment and its state counterpart.
      Attorney Forbeck: There's no takings here that I know of, but I can't, to be candid with you ...
      Justice Sykes: But there's a distinction between the two constitutional concepts?
      Attorney Forbeck: I know the public takings law was cited by other counsel, and candidly I think it's a completely different set of laws and set of rules. There's no taking being done here.
      Justice Sykes: I understand there's no taking being done here.
      Attorney Forbeck: Okay.

        Justice Sykes: But I'm asking you if there's any distinction, any principled distinction between the two constitutional doctrines.
      Attorney Forbeck: I don't know, I can't honestly answer the question.
      Justice Sykes: Well let me ask it this way, perhaps this will spark something.
      Attorney Forbeck: Okay.
      Justice Sykes: Would the public purposes that you're asserting sustain the town's actions in this case be sufficient to sustain a condemnation/eminent domain taking of this property if it were privately held?
      Attorney Forbeck: I don't think so, to answer your question.
      Justice Sykes: The town could not force a sale on a private property owner based upon these public justifications?
      Attorney Forbeck: Need . . . and I've done municipal law for thirty some years now, I'm not a proponent of doing eminent domain first of all, number one. But number two is — I don't think you could show an eminent domain necessity to do this particular piece of property.

       The Intervenors, along with Rock County, allege that the primary, if not exclusive, purpose behind the town's decision to subdivide Heron Bay, was a drive to maximize profit. See Pet'r Br. at 28, 31. Our review of the record does not find support for that allegation.

        Hermann v. City of Lake Mills, 275 Wis. 537, 82 N.W.2d 167 (1957), was distinguished by Bishop v. City of Burlington, 2001 WI App. 154, ¶ 13, 246 Wis. 2d 897, 631 N.W.2d 656, on a factual basis. The proposition for which Hermann is cited is valid, and bolstered by the holding in Bishop. See Bishop, ¶ 19 ("... we interpret Hermann to prohibit the use of public funds to promote the expansion of a particular industry").

      I agree with the well-written decision of Circuit Court Judge William D. Johnston. Judge Johnston concluded that this expenditure does not meet the two-part test established in State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 55-56, 205 N.W.2d 784 (1973): Is the expenditure for public necessity, convenience, or welfare? Would private individuals have difficulty in providing the subdivision for themselves? The answer to both questions in the present case is no.

        Libertarian Party of Wisconsin v. State, 199 Wis. 2d 790, 810, 546 N.W.2d 424 (1996) (citing State ex rel. Wisconsin Dev. Auth. v. Dammann, 228 Wis. 147, 277 N.W. 278 (1938)).

        Hopper v. Madison, 79 Wis. 2d 120, 128, 256 N.W.2d 139 (1977).

        Town of Beloit v. County of Rock, 2001 WI App 256, ¶ 26 n.6, 249 Wis. 2d 88, 637 N.W.2d 71.

       Private developers were rejected by the town. The statutes reflect a pattern authorizing villages and towns with village powers to increase housing but only for certain segments of the population and subject to limitations and prescribed procedures. See, e.g., Wis. Stat. §§ 66.1203 (housing authority not for profit); 66.1213 (housing authorities for elderly persons); 66.1301 (urban development); 66.1335 (housing and community development authorities). One inference from these statutes is that a town does not have the power to provide housing for purposes not similar to those set forth in the statutes.

        See, e.g., State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d at 50-53; State ex rel. Bowman v. Barczak, 34 Wis. 2d 57, 70-71, 148 N.W.2d 683 (1967).

        See majority op., ¶ 43 n.15.

       Majority op., ¶ 44.

       Majority op., ¶¶ 43-44.

        See majority op., ¶ 43 n.15.


source: Caselaw Access Project

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Richard W. Delaney, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 01-1051-CR.

      Oral argument October 15, 2002. —
    Decided March 4, 2003.

    2003 WI 9
    (Also reported in 658 N.W.2d 416.)

      For the defendant-appellant-petitioner. there were briefs by Joseph R. Cincotta and Schweitzer & Cincotta LLP, Milwaukee, and oral argument by Joseph R. Cin-cotta.

      For the plaintiff-respondent the cause was argued by David J. Becker, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   N. PATRICK CROOKS, J.

¶ 1. Petitioner Richard W. Delaney (Delaney) seeks review of an unpublished court of appeals decision, affirming his judgment of conviction and sentence for operating while intoxicated (OWI), third offense. Specifically, Delaney asks this court to determine whether Wis. Stat. § 939.62 (1999-2000) was properly applied to his already enhanced OWI offense under Wis. Stat. § 346.65(2)(c), based on the existence of a past non-OWI offense, so as to enhance Delaney's penalty twice for count one of his judgment of conviction. We answer in the affirmative, and conclude that a defendant convicted of the crime of second — or subsequent — offense OWI, as Delaney has been, is subject to the penalty enhancements provided for in both §§ 346.65(2) and 939.62, so long as the application of each enhancer is based on a separate and distinct prior conviction or convictions.

I. BACKGROUND

¶ 2. The facts are undisputed. On November 19, 1999, Officer Kenneth Clelland was attempting to locate a brown station wagon with a certain license plate that had been involved in a hit-and-run accident. Dispatch identified the suspected driver as either Richard Delaney or Randy Delaney. Officer Clelland located the vehicle in front of Martin Delaney's residence. Martin Delaney is the brother of Richard and Randy Delaney. After finding Richard Delaney hiding in the house, Officer Clelland placed both Randy and Richard Delaney in custody. During the investigation, Richard Delaney confessed that he had been the driver of the offending vehicle. Officer Clelland then formally placed Richard Delaney (Delaney) under arrest and transported him to the police department.

¶ 3. Count One of the eight-count criminal complaint charged Richard with OWI pursuant to Wis. Stat. § 346.63(l)(a). The complaint also alleged that Richard had been previously convicted of OWI in July, 1992, and that his driving privileges had been previously revoked for failing to submit to a chemical test in July, 1990, making him a third-time offender pursuant to § 346.65(2)(c). In addition, the complaint alleged that Richard had been previously convicted of attempted possession of THC with intent to deliver, a felony, in July, 1996, making him a repeat offender pursuant to ■ § 939.62.

¶ 4. Delaney moved to suppress the pre-Miranda oral statements he made to Officer Clelland. He also moved to dismiss the applicability of the habitual criminal penalty enhancer under Wis. Stats. § 939.62 from Count One of the complaint. Delaney's motions were denied after an evidentiary hearing on January 14, 2000.

¶ 5. On April 3, 2000, Delaney entered a no contest plea to OWI, third offense, as a repeater pursuant to Wis. Stat. §§ 346.63(l)(a), 346.65(2)(c), and 939.62. He also pled no contest to two counts of causing injury while operating while intoxicated in violation of § 346.63(2)(a) 1.

¶ 6. The circuit court for Kenosha County, the Honorable S. Michael Wilk, presiding, imposed the following sentence:

Count One [OWI, third offense]: sentence withheld and six years probation to run concurrent with Count Three (R. 30:56).
Count Three [Causing injury by motor vehicle while under the influence of intoxicant as a repeater]: 14 months prison stayed and six years probation to run concurrent with Count One and consecutive to Count Five (R. 30:56).
Count Five [Causing injury by motor vehicle while under the influence of intoxicant as a repeater]: three years prison (R. 30:55, 30:56).
If probation is revoked, a potential three years for the withheld sentence plus 14 months for the stayed sentence (R 30:56, 30:57).

¶ 7. Delaney filed motions for post-conviction relief on February 19, 2001, seeking to reverse the circuit court's ruling applying the penalty enhancer under Wis. Stat. § 939.62, and reserving the right to challenge the circuit court's denial of the motion to suppress his pre-Miranda statements on direct appeal. After negotiation with the State, a stipulated sentence modification order was entered on March 28, 2001, disposing of Delaney's post-conviction motion challenging the circuit court's denial of the motion to suppress his pre-Miranda statements. Delaney filed a notice of appeal on April 16, 2001.

¶ 8. On January 23, 2002, the court of appeals affirmed the circuit court, finding the statutory language of Wis. Stat. §§ 939.62 and 346.65(2)(c) unambiguous. The court of appeals stated:

Both statutes permit an enhanced penalty and the facts squarely support the implementation of both statutes. [Delaney's] present conviction qualifies him as a repeater pursuant to Wis. Stat. § 939.62(1) because the conviction is not for an escape or a failure to report. And [Delaney's] prior felony conviction for attempted possession of THC with intent to deliver further qualifies him as a repeater because the conviction is not a motor vehicle or juvenile offense. Therefore, [Delaney] was properly sentenced as a repeater under both statutes.

State v. Delaney, 2002 WI App 56, ¶38, 251 Wis. 2d 481, 640 N.W. 2d 565.

¶ 9. Delaney petitioned this court for review, which we granted on April 22, 2002.

¶ 10. Delaney contends that his sentence was improperly enhanced by the circuit court's application of both the repeater provisions of Wis. Stat. §§ 346.65(2)(c) and 939.62(l)(a). Delaney does acknowledge that he was properly subjected to the repeater provision of § 346.65(2)(c), based on his prior OWI conviction and his refusal to submit to a chemical test. Therefore, we must determine whether § 939.62 applies to Delaney's already enhanced OWI offense based on the existence of a past non-OWI offense.

¶ 11. Delaney advances the following arguments in support of his contention that the general repeater statute, Wis. Stat. § 939.62, may not be applied to an already enhanced sentence under § 346.65: (1) that the statutory language of § 939.62, and our decision in State v. Wideman, 206 Wis. 2d 91, 94, 556 N.W.2d 737 (1996), illustrate that the legislature intended to exempt motor vehicle offenses from § 939.62, and (2) that the court of appeals decision in State v. Ray, 166 Wis. 2d 855, 481 N.W.2d 288 (Ct. App. 1992), prohibits the application of the general repeater statute when a specific enhancer has already been utilized.

II. STANDARD OF REVIEW

¶ 12. Delaney's arguments require us to construe the language of Wis. Stat. §§ 346.65 and 939.62, raising questions of law, which we review independently. Wideman, 206 Wis. 2d at 94.

¶ 13. The purpose of statutory construction is to determine and give effect to the legislative intent, which is ascertained by considering the language of the statute, and if necessary the scope, history, context, subject matter and object intended to be remedied or accomplished. Ray, 166 Wis. 2d at 872. When construing multiple statutes, we seek to harmonize them. Id. at 873. "It is a cardinal rule of statutory construction that conflicts between statutes are not favored and will be held not to exist if the statutes may otherwise be reasonably construed." Wyss v. Albee, 193 Wis. 2d 101, 110, 532 N.W.2d 444 (1995).

¶ 14. We first look to the language of a statute and attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986). Only when statutory language is ambiguous may we examine other construction aids such as legislative history, scope, context, and subject matter. State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986). A statute is ambiguous if reasonable persons could disagree as to its meaning. Williquette, 129 Wis. 2d at 248.

¶ 15. As noted above, if the statute is clear and unambiguous, we need not look beyond the statutory language to ascertain its meaning. However, we may construe a clear and unambiguous statute "if a literal application would lead to an absurd or unreasonable result," Coca-Cola Bottling Co. of Wisconsin v. La Follette, 106 Wis. 2d 162, 170, 316 N.W.2d 129 (Ct. App. 1982).

III. STATUTORY ANALYSIS

¶ 16. Delaney contends that the penalty enhancer under Wis. Stat. § 939.62 should not have been applied to the OWI count, since it was improperly used to further enhance his already enhanced penalty under the OWI provisions in § 346.65(2)(c). We disagree. The circuit court and court of appeals did not err in applying the general penalty enhancer under § 939.62 to further enhance Delaney's already enhanced sentence under § 346.65(2)(c).

¶ 17. Delaney bases his argument upon language in Wis. Stat. § 939.62(3) that he contends seemingly excludes motor vehicle offenses from its scope. However, a careful reading of the statute reveals that the plain language of § 939.62 does not exclude OWI offenses under § 346.63(1) from the scope of crimes to which the penalty enhancer applies. Wisconsin Stat. § 939.62(1) states:

If the actor is a repeater, as that term is defined in sub. (2), and the present conviction is for any crime for which imprisonment may be imposed, except for an escape under s. 946.42 or a failure to report under s. 946.425, the maximum term of imprisonment prescribed by law. for that crime may be increased as follows:
(a) A maximum term of one year or less may be increased to not more than 3 years.
(b) A maximum term of more than one year but not more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 6 years if the prior conviction was for a felony.
(c) A maximum term of more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 10 years if the prior conviction was for a felony.

Wisconsin Stat. § 939.62(3) states:

In this section, "felony" and "misdemeanor" have the following meanings:
(a) In case of crimes committed in this state, the terms do not include motor vehicle offenses under chs. 341 to 349 and offenses handled through proceedings in the court assigned to exercise jurisdiction under chs. 48 and 938, but otherwise have meanings designated in s. 939.60.

¶ 18. Contrary to Delaney's assertion that the exemption for motor vehicle offenses from the definition of "felony" and "misdemeanor" in Wis. Stat. § 939.62(3) bars the application of § 939.62 to his already enhanced penalty, we hold that the plain language of the statute does not exclude OWI offenses under § 346.63(1) from the scope of crimes to which the § 939.62 penalty enhancer applies.

¶ 19. Applying the plain language of the statute, as we are obliged to do, we note it focuses on the defendant's present conviction. The statute applies where the defendant's present conviction is "for any crime for which imprisonment may be imposed, except for an escape under s. 946.42 or a failure to report under s. 946.425." Wis. Stat. § 939.62(1).

¶ 20. Wis. Stat. § 939.12 defines a crime as "conduct which is prohibited by state law and punishable by fine or imprisonment or both." Under § 346.65(2)(c), a third offense OWI constitutes a crime, as the defendant is subject to a fine and a minimum jail sentence. Thus, we conclude that the plain language of § 939.12 provides that motor vehicle offenses, for which a sentence of fine or imprisonment or both may be imposed, are "crimes" subject to § 939.62.

¶ 21. However, pursuant to Wis. Stat. § 939.62(2), a defendant is only classified as a repeater if "the actor was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which the actor presently is being sentenced, or if the actor was convicted of a misdemeanor on 3 separate occasions during that same period...." Wis. Stat. § 939.62(2). Delaney points to § 939.62(3), which ex-eludes motor vehicle offenses under chs. 341, to 349 from the definitions of "felony" and "misdemeanor,"- in support of his contention that the legislature intended to create separate punishment mechanisms for general crimes and OWI offenses.

¶ 22. We disagree. The words "felony" and "misdemeanor" are only utilized in the discussion of prior convictions, not present convictions. Wis. Stat. § 939.62(3). By contrast, the legislature referred to "any crime" in defining the present conviction under § 939.62(1). The legislature specifically provided two exemptions to the phrase "any crime"; escape under § 946.42 and failure to report under § 946.425. Under the well-established canon of expressio unius est exclu-sio alterius (the expression of one thing excludes another), where the legislature specifically enumerates certain exceptions to a statute, we conclude, based on that rule, that the legislature intended to exclude any other exception. State ex rel. Harris v. Larson, 64 Wis. 2d 521, 527, 219 N.W.2d 335 (1974).

¶ 23. Applying the above canon to the case at hand, if the legislature intended to exempt present motor vehicle offenses from the definition of "any crime," it either would have clarified its intention by adding the "felony" and "misdemeanor" language to Wis. Stat. § 939.62(1), rather than referring to "any crime," or it would have added a specific motor vehicle offense exemption to § 939.62(1). However, the legislature has elected not to do so. The legislature only barred the application of § 939.62 where the present conviction is for an escape or failure to report, and where the prior conviction relied on to trigger the enhancement statute is for a motor vehicle offense.

¶ 24. Accordingly, we hold that the "any crime" language of Wis. Stat. § 939.62(1) unambiguously applies to a motor vehicle offense, such as the OWI offense here, which is a crime for which a sentence of both a fine and imprisonment must be imposed. The motor vehicle exemption in sub. (3) for prior convictions does not apply where the present motor vehicle conviction constitutes a "crime."

¶ 25. Therefore, because Delaney's present conviction for a third offense OWI is not an escape or failure to report and his prior drug conviction is a felony, and that felony occurred within the statutory time period, the repeater enhancement provision of Wis. Stat. § 939.62 was properly applied.

¶ 26. Since we find that the statute is plain on its face, we need not look to extrinsic materials in interpreting Wis. Stat. § 939.62. See Landis v. Physicians Ins. Co., 2001 WI 86, ¶ 14, 245 Wis. 2d 1, 628 N.W.2d 893; State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986). Because Delaney cites two Wisconsin cases in support of his position, we feel it is necessary to address and analyze each case.

¶ 27. Delaney cites State v. Wideman, for support of his contention that the legislature intended to exclude OWI offenses from the penalty enhancement scope of Wis. Stat. § 939.62. Delaney is correct in that Wideman acknowledges that the legislature intended that § 346.65 generally operates in a different manner than other repeater statutes. See Wideman, 206 Wis. 2d at 102. However, Wideman is distinguishable from the case at bar, as Delaney himself acknowledges. See Pet'r Br. at 19.

¶ 28. In Wideman, we held that the proof requirements, necessary to make the general repeater statute applicable, do not govern proof requirements for prior OWI convictions used to enhance an OWI conviction under Wis. Stat. § 346.65(2). Wideman, 206 Wis. 2d at 100. Relying on the statutory language, we stated that § 939.62(3)(a) expressly excluded motor vehicle offenses from the definition of a repeater, so the burden of proof requirements for prior OWI convictions were not governed by that statutory provision. Id. Wideman reaffirms our statutory analysis that prior motor vehicle offenses are excluded from the definition of "felony" and "misdemeanor" in § 939.62(3). It also reaffirms our conclusion that § 939.62 is clear and unambiguous. Regarding § 939.62, we stated in Wideman that: "[w]e would be hard pressed to find a clearer expression of legislative intent." Id. at 100.

¶ 29. As noted before, Delaney's enhanced penalty under Wis. Stat. § 939.62 is based on his prior felony conviction for attempted possession of THC with intent to deliver. Delaney's contention that Wideman supports his argument that the legislature intended to exclude OWI offenses from the penalty enhancement scope of § 939.62 would be correct if the prior conviction relied on for the purposes of § 939.62 was a motor vehicle offense. However, attempted possession of THC with intent to deliver is clearly not a motor vehicle offense. Thus, we conclude that the plain language of § 939.62 does not prohibit its application to Delaney's present conviction for a third offense OWI.

¶ 30. Next, Delaney contends that the court of appeals decision in State v. Ray, 166 Wis. 2d 855, 481 N.W.2d 288 (Ct. App. 1992), prohibits the double enhancement of penalties under both a specific penalty enhancer and the general enhancer in Wis. Stat. § 939.62. Ray is distinguishable from the present case. In Ray, the defendant's conviction was enhanced under § 161.41(2) [now § 961.48] for violations of § 161.41(lx) [now § 961.41] (conspiracy to deliver cocaine) and under the general repeater statute for the same prior conviction. Ray, 166 Wis. 2d at 871-72. The court of appeals held that the circuit court may apply either the specific enhancer or the more general enhancer, but not both when the predicate offense is for the same conviction. Id. at 873.

¶ 31. The court of appeals in Ray carefully limited its decision to the situation before it. The factual situation in Ray is not the same as here. Unlike the situation in Ray, where the State attempted to use one prior conviction to support two penalty enhancers, here the Wis. Stat. § 346.65 enhancer was based on Delaney's prior OWI conviction and refusal to submit to a chemical test. The § 939.62 enhancer was based on Delaney's attempted possession of THC conviction; therefore, the decision in Ray is inapplicable here.

¶ 32. Case law in other jurisdictions supports our analysis that when, as here, multiple penalty enhancers are predicated on separate and distinct prior offenses, imposition of multiple enhancers is permissible. See Commonwealth v. Grimes, 698 S.W.2d 836 (Ky. 1985). In that case, the defendant was convicted of second-offense drug trafficking, and as a persistent felony offender under a general repeater statute analogous to Wis. Stat. § 939.62. The Kentucky Supreme Court held: "[A] conviction of a second offense of [drug] trafficking . . . may be further enhanced by a persistent felony offender ... charge pursuant to the general PFO [persistent felony offender] statute . . . where the PFO charge is grounded on a prior, unrelated conviction." Grimes, 698 S.W.2d at 837. .

¶ 33. Applying the Grimes rule to a second or subsequent drunk driving offense enhanced under a general repeater statute, the Kentucky Supreme Court in Corman v. Commonwealth, 908 S.W.2d 122 (Ky. 1995), sustained a conviction for fourth-offense OWI as a persistent felony offender (PFO) because there was a separate basis for each penalty enhancement. In particular, the Corman court stated:

The rule is now established that when a single prior felony is utilized to create an offense or enhance a punishment at the trial of the second crime, that same prior felony cannot be used at that trial to prosecute the defendant as a persistent felony offender. If however, the prior felony used to underlie the PFO conviction is a separate prior felony from the one used to create the offense or enhance its punishment, the offense can be further enhanced under the PFO statute.

Corman, 908 S.W.2d at 123 (citations omitted).

¶ 34. Furthermore, the Iowa Supreme Court has reached a similar conclusion under a statutory scheme similar to that in Wisconsin. Bown v. State, 475 N.W.2d 3 (Iowa 1991). In Bown, the defendant was charged with OWI, third offense, which enhanced his charge to class "D" felony, with a habitual offender enhancement for two previous burglary convictions. 475 N.W.2d at 4. Reversing the trial court, the Iowa Supreme Court found the OWI statute and the habitual offender statute unambiguously permitted the double enhancement in situations like Delaney's. Id. at 7. Noting the general trend in other jurisdictions toward permitting this type of double enhancement, the court found its construction reasonable given the public and legislative concerns regarding drunk driving. Id. at 6.

¶ 35. As Wideman, Ray, and the case law from other jurisdictions indicate, applying Wis. Stat. § 939.62 to an already enhanced sentence under § 346.65(2)(c) does not lead to an "absurd or unreasonable result." Coca-Cola Bottling, 106 Wis. 2d at 170. As a result, the unambiguous statutory language allows the application here of the penalty enhancement provisions of § 939.62 to further increase an already enhanced penalty under the specific penalty enhancer provisions of § 346.65.

IV CONCLUSION

¶ 36. For the reasons set forth above, we conclude that a defendant convicted of the crime of second or subsequent offense OWI, as Delaney has been, is subject to the penalty enhancements provided for in both Wis. Stat. §§ 346.65(2) and 939.62, so long as the application of each enhancer is based on a separate and distinct prior conviction or convictions.

¶ 37. Accordingly, we affirm the court of appeals decision, which affirmed Delaney's conviction and sentence for a third offense OWI.

By the Court — The decision of the court of appeals is affirmed.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 38. (dissenting). Rules of statutory interpretation are designed to help courts discern the intent of the legislature, not to serve as blinders. In this case, the majority opinion uses the plain language rule to shield its eyes from the legislative intent to exclude motor vehicle offenses from consideration both as a predicate offense and a present offense under the habitual offender statute.

¶ 39. The majority opinion maintains that the plain language of Wis. Stat. § 939.62 (1999-2000) unambiguously excludes motor vehicle offenses from consideration as predicate offenses and just as clearly includes motor vehicle offenses when determining whether a present offense makes the perpetrator a habitual criminal. Specifically, the majority asserts that under § 939.62, the word "crime" means all felonies and misdemeanors, but that the terms "felony" and "misdemeanor" mean only those crimes that are not motor vehicle offenses. Thus, the "any crime" language of § 939.62(1) discussing present offenses that trigger the habitual offender statute "unambiguously" includes motor vehicle offenses.

¶ 40. A rule of interpretation cannot, by itself, be dispositive in interpreting a statute because almost every rule can be countered by an opposing rule. Here, the majority opinion employs the plain language rule without acknowledging a counterpart. Statutes plain on their face are not to be read so as to lead to an absurd result. "A court will always reject an unreasonable construction of a statute where a reasonable construction appears, and this is so notwithstanding that the statute is to be strictly construed."

¶ 41. According to the majority, a person convicted of operating a motor vehicle under the influence of an intoxicant or other drug on five occasions who then commits a drug offense cannot be sentenced as a repeater because the predicate offenses were all for motor vehicle violations.

¶ 42. In contrast, however, a person engaged in the same criminal offenses but in a slightly different order will be punished with a significantly higher sentence. If the drug conviction occurred first, followed by five OWI convictions, the defendant could be sentenced as a repeater. Similarly, if two OWI convictions were followed by the felony drug conviction and then three more OWI convictions, the defendant would again be considered a repeater.

¶ 43. The more reasonable construction is to read Wis. Stat. § 939.62 (1999-2000) as excluding motor vehicle offenses from the entirety of the statute. In this way, all persons convicted of the same types of crimes receive the same enhanced punishment; the timing of the convictions is irrelevant.

¶ 44. Furthermore, this interpretation is consistent with the legislative history of Wis. Stat. § 939.62 (1999-2000). The history of § 939.62 demonstrates that the legislature did not intend to distinguish between present offenses and predicate offenses when excluding motor vehicle offenses under the habitual criminality statute. Section 939.62 began as Wis. Stat. § 359.12 (1949), and the plain language of § 359.12 clearly excludes motor vehicle offenses from the operation of the entire statute.

¶ 45. Under the 1949 version, subsection (l)(a) defines a repeater as someone convicted of "a crime punishable by imprisonment (except escapes under section 346.40 or 346.45(2))" who has either been convicted of a "felony" or three "misdemeanors" within the previous five years. Subsection (l)(b) then defines "felony" and "misdemeanor." The statute explains, "as to crimes committed in Wisconsin, 'felony' and 'misdemeanor' have the same meaning given in [the Wisconsin statutes]." For crimes committed outside of Wisconsin, a felony is a crime punishable by one year of imprisonment or more, and a misdemeanor is any other crime.

¶ 46. Subsection (l)(b) then concludes by stating broadly that "motor vehicle offenses under ch. 85, fish and game law offenses in violation of ch. 23 or 29 or offenses against equivalent laws of other states are not to be considered crimes for purposes of this section." Thus, reading (l)(b) back into (l)(a), the statute defines a repeater as a person convicted of a crime that, is not a motor vehicle offense or fish and game law offense or escape.

¶ 47. William Platz, the author of Wisconsin's criminal code, supports this reading. He commented at the time that one of the features of the habitual offender law as it read in 1949 was to exclude "motor vehicle and fish-and-game laws" from "the operation of this statute."

¶ 48. The parties agree that Wis. Stat. § 359.12 (1949) underwent only minor changes with the enactment of the 1955 Code. Most relevant to the case at hand, the legislative committee notes to Assembly Bill 100, enacting the criminal code, explain that "the only change" between the former subsection (1) and its counterparts in the current subsections (2) and, (3) is that "under the new section fish and game law violations are considered crimes in calculating whether a person is a repeater." The implication is that the status of motor vehicle offenses was to remain the same as it was in the 1949 version — excluded from the operation of the statute.

¶ 49. I conclude from the clear legislative history that the legislature did not intend to apply the penalty enhancement provisions of Wis. Stat. § 939.62(1) (1999-2000) to further increase an already enhanced penalty for a motor vehicle offense under Wis. Stat. § 346.65(2)(c) (1999-2000).

¶ 50. For the foregoing reasons, I dissent.

¶ 51. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

       On appeal, Delaney argued that his pre-Miranda statement that he was the driver of the car involved in the accident was obtained during a custodial interrogation and should have been suppressed by the trial court. The court of appeals held that Delaney's statement was voluntary and was not the result of police questioning or custodial interrogation; therefore, the statement was admissible. In his petition for review and briefs to this court, Delaney does not raise his Miranda issue. As a result we will not revisit the issue.

       The circuit court denied the motion relating to the penalty enhancer on the basis that Richard's prior felony offense provided a separate factual basis for the application of the § 939.62 penalty enhancer.

       The court of appeals correctly noted that Wis. Stat. § 939.62 "is not a stand-alone statute. By its very terms, it must be linked to another statute creating a crime before it can be implemented." State v. Delaney, 2002 WI App 56, ¶35, 251 Wis. 2d 481, 640 N.W. 2d 565.

       Delaney contends that applying Wis. Stat. § 939.62 to an already enhanced sentence contravenes the Wisconsin rule that "penal statutes are generally construed strictly to safeguard a defendant's rights." State v. Rabe, 96 Wis. 2d 48, 70, 291 N.W.2d 809 (1980)(citation omitted). However, the rule only applies where the statutory language is ambiguous. Id. We find § 939.62 unambiguous and thus reject Delaney's argument.
      Delaney also asserts that § 939.62 may not be applied because statutory rules of construction hold that a more specific provision governs the more general. State v. Dairyland Power Coop., 52 Wis. 2d 45, 53, 187 N.W.2d 878 (1971). Again, that rule only applies where the legislative intent cannot be discerned from the pertinent provisions and the two provisions irreconcilably conflict. Dairyland Power, 52 Wis. 2d at 53. As we stated earlier, we find both Wis. Stat. §§ 346.65(2)(c) and 939.62 clear and unambiguous both in their own right, and in concert with each other. Thus, we need not resort to the principle that the specific governs the general.

       The issue in Wideman was whether a prior conviction or prior convictions of OWI used to enhance the punishment of one convicted of OWI, as provided for in Wis. Stat. § 346.65(2), must be proved in the same manner required by § 973.12 for prior convictions for purposes of § 939.62. State v. Wideman, 206 Wis. 2d 91, 556 N.W.2d 737 (1996).

       Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About Houi Statutes Are to Be Construed, 3 Vand. L. Rev. 395 (1950).

        Falkner v. N. States Power Co., 75 Wis. 2d 116, 124, 248 N.W.2d 885 (1977).

       The majority opinion misses this point entirely. The majority argues only that it is neither absurd nor unreasonable for the legislature to create a statutory scheme permitting the double enhancement of a sentence so long as each enhancer is based on a separate and distinct prior conviction. Nowhere does it address the true absurdity resulting from its interpretation of Wis. Stat. § 939.62: double enhancement is permitted when a person commits a drug offense and then an OWI but not when a person commits the same OWI and then the same drug offense.

       Wisconsin Stat. § 359.12 (1949) reads, in relevant part, as follows:
      Sentence of repeater: (1) Definitions. As used in this section, unless context or subject matter otherwise requires:
      (a) "Repeater" means a person convicted of a crime punishable by imprisonment, (except escapes under section 346.40 or 346.45(2)), who, within 5 years prior to commission thereof, had been convicted of a felony or on 3 separate occasions during such 5-year period had been convicted of misdemeanors by any criminal court or courts of this state or of the United States or of any other state or territory of the United States, which conviction or convictions remain of record and unreversed, whether pardoned therefore or not (except on grounds of innocence) and whether or not sentence on such conviction was stayed, suspended or withheld. No time during which such person was in actual confinement serving a criminal sentence shall be included in such 5-year period.
      (b) As to crimes committed in Wisconsin, "felony" and "misdemeanor" have the meaning given in section 353.31; otherwise "felony" is any crime under the laws of the United States or any other state or territory which carries a possible penalty of imprisonment for one year or more in a state prison or penitentiary or a federal penitentiary; and "misdemeanor" is any crime under the laws of the United States or any other state or territory which does not carry a possible penalty sufficient to constitute it a felony, and includes crimes punishable only by a fine. Motor vehicle offenses under chapter 85, fish and game law offenses in violation of chapter 23 or 29 or offenses against equivalent laws of other states are not to be considered crimes for purposes of this section.

       Wis. Stat. § 359.12(l)(b) (1949) (emphasis added).

       William Platz was a Wisconsin Assistant Attorney General and the principal draftsman of the revised criminal code. This court has consistently turned to his articles and comments on revisions to the criminal code as authoritative and persuasive evidence of the legislature's intent in drafting the criminal code. See, e.g., State v. Hopkins, 168 Wis. 2d 802, 484 N.W.2d 549 (1992); State v. Williquette, 129 Wis. 2d 239, 385 N.W.2d 145 (1986); State v. Gordon, 111 Wis. 2d 133, 330 N.W.2d 564 (1983); State ex rel. Gebarski v. Circuit Court for Milwaukee County, 80 Wis. 2d 489, 259 N.W.2d 531 (1977); State v. Hoyt, 21 Wis. 2d 284, 128 N.W.2d 645 (1964).

        See William A. Platz, The 1949 Revision of the Wisconsin Code of Criminal Procedure, 1950 Wis. L. Rev. 236, 241.

       Wis. Legis. Council, V Judiciary Committee Report on the Criminal Code, at 51 (1953).