Milwaukee Brewers Baseball Club v. Wisconsin Department of Health & Social Services

387 N.W.2d 254, 130 Wis. 2d 79, 1986 Wisc. LEXIS 1903

• Court: Wisconsin Supreme Court
• Decided: May 12, 1986
• Docket: 85-0164
• Status: Published

Opinions

BABLITCH, J.

The 1983 budget bill, more than 400 pages long, is an omnibus bill dealing with a broad range of unrelated topics. The plaintiffs (hereinafter, "the Brewers") challenge three provisions of the bill: 1) sec. 46.05(lo)(a), Stats., which requires the Wisconsin Department of Health and Social Services (DHSS) to build a prison in the Menomonee Valley; 2) 1983 Wis. Act 27, sec. 2020(32m)(f), which forbids the DHSS to hold a contested case hearing on the final Environmental Impact Statement (EIS) for the prison; and 3) sec. 46.0435(3) which established special standards for judicial review of the administrative procedures relating to the prison. The Brewers argue that these provisions violate art. I, sec. 1 of the Wisconsin Constitution which guarantees equal protection of the law, as well as art. IV, sec. 18 of the Wisconsin Constitution relating to private or local bills.¹ The court of appeals held that the siting provision, sec. 46.05(lo)(a), violates art. IV, sec. 18 dealing with private or local bills. We agree with the Brewers that the two provisions which relate to special administrative and judicial review procedures violate the Wisconsin Constitution's guarantee of equal protection, and they are therefore stricken. We conclude that the provision which directs DHSS to construct the prison in the Menomonee Valley does not violate the Wisconsin Constitution in either respect.

Although this opinion preserves the legislative provision which directs the DHSS to construct a prison in the Menomonee Valley, construction cannot begin until the Brewers have been given the full protection of Wisconsin Environmental Policy Act (WEPA) and judicial review procedures, many of which have previously been denied them. If the legislature chooses to persist in its directive to the DHSS, it may only fashion such special procedures as are consistent with the constitutional guarantees of equal protection of the law.

This opinion also addresses the issue of what constitutes a private or local law. We hold that the siting provision does not violate the constitutional provision of art. IV, sec. 18. We further hold that the constitutional mandate of art. IV, sec. 18 of the Wisconsin Constitution acts to inform the legislature that if it desires to enact legislative provisions that are specific as to any location, individual, or entity, it must do so in a separate bill under separate title. The only exception art. IV, sec. 18 allows is for provisions whose general subject matter is a state responsibility of statewide dimension. Even for those provisions, enactment must have direct and immediate effect on a specific statewide concern or interest. Then, and only then, is the inclusion of the provision in a differently titled bill constitutionally acceptable.

I. EQUAL PROTECTION

"[T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. . . . Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation." Railway Express v. New York, 336 U.S. 106, 112-13 (1949). (Jackson, J., concurring.)

Most citizens agree on the urgent need for more urban prisons but only if, as the political history of prison siting in this state unfortunately reveals, the prisons are built in "someone else's backyard." Quite obviously, if an urban prison is built, it must be built in somebody's backyard. The legislature in the 1983 budget bill, in response to the critical need for prison space, took two actions. First, it designated who was to have a prison constructed in their backyard. Second, it directed that those who were to have that prison in their backyard would have significantly fewer rights of environmental review than all other citizens who might challenge prison construction elsewhere in the state.

Unquestionably the legislature had the right to place a prison in somebody's backyard, be it the Me-nomonee Valley or anywhere else.

However, of the 23 correctional institutions recommended for construction by the Fiad Report (16 of which were for southeastern Wisconsin), the legislature singled out only one — the Menomonee Valley prison — for special treatment. It is only those persons with standing to oppose this one specific site in the Me-nomonee Valley who are governed by the truncated judicial and administrative procedures applicable to review of the environmental impact of the site. We conclude these provisions which articulate this special treatment violate the Wisconsin Constitution's guarantee of equal protection of the law.

The facts are undisputed. In 1976, the state commissioned Fiad and Associates, Inc. to develop a Six Year Master Plan which addressed the state's correctional needs through 1985. The 1977 Fiad Report was a comprehensive document which included projections of future inmate populations and recommendations on policy changes, facility improvements, and additions.

Specifically, the Fiad Report based its findings on the needs of the existing probation and parole regions in the state numbered 1-5. Region numbers 2 and 3, referred to in the Fiad Report as the "southeast section of Wisconsin," consist of the counties of Milwaukee (region 3), and Kenosha, Racine, Waukesha, Walworth, Washington and Ozaukee (region 2). Together the populations of these counties total approximately 1.76 million people, roughly 35 to 40 percent of the state's entire population.

The Fiad Report emphasized the need for correctional facilities for the southeast section of the state:

"2. The present system is institution-based, not community-based. In the past, institutions were located in rural areas. Today, with trends toward urbanization, correctional facilities should be located to serve this population.

"The southeast section of Wisconsin is contributing the majority of offenders to the system. The major existing facilities, however, are located in the northeast section of the state, distant from the communities (such as Milwaukee County) which contribute the majority of inmates." Fiad Report p. 11.

The Fiad Report recommended building 23 new correctional institutions in the state. Consistent with its emphasis on the need for correctional facilities in the southeastern section of the state, it recommended that the state construct 16 of the 23 new facilities in the southeastern section. It recommended siting ten of these in region 3, Milwaukee county, and six in region 2.²

In the 1983 budget bill the legislature declared that the establishment of a state correctional facility, including any new metropolitan correctional institution, was a matter of general, statewide interest. The legislature added that"... prison overcrowding is a critical problem in this state which restricts the options available to judges, prosecutors, and prison officials." 1983 Wis. Act 27, sec. 2020(32g)(a). The legislature concluded that the siting of a new metropolitan correctional institution "... necessitates an expedited environmental review process and will require the direct action of the legislature in establishing the site ...." 1983 Wis. Act 27, sec. 2020(32g)(b).³

Accordingly, in the 1983 budget bill, the legislature directed the DHSS to build a correctional institution at a specific site in Milwaukee county. The DHSS is the state agency charged with responsibility for prison construction and the environmental review of the impact of that construction. The language in the bill reads as follows:

". . . the department shall establish a correctional institution located in Milwaukee in the area bounded on the north by highway 194, on the south and west by the Menominee [statutory spelling] river and on the east by 35th street on property owned by the Milwaukee road railroad on March 28, 1983. The department may acquire additional land owned by the Milwaukee road railroad on March 28, 1983, on the west and south sides of and contiguous to the Menomonee river." 1983 Wis. Act 27, sec. 953p.

This location is the Menomonee Valley in the City of Milwaukee. This site is approximately a 6-square-block section directly adjacent to Milwaukee County Stadium. The southeast region to which the Fiad Report refers is approximately 2,290 square miles.

Although the legislature reaffirmed its commitment to WEPA, the legislature also provided for what it termed "expedited" administrative and judicial review procedures applicable to environmental review of the site, by precluding the DHSS from holding a contested case hearing on the final FIS for "any new metropolitan prison." Instead, DHSS was to hold an informational hearing for the purpose of providing information and soliciting comments, material and testimony to assist the legislature and DHSS. 1983 Wis. Act 27, sec. 2020(32m)(f).

The legislature also directed the courts, as part of this "expedited" process, not to enjoin construction of such a facility due to alleged defects in the EIS unless the parties seeking the injunction proved". . .by clear and convincing evidence that any defects" could not be remedied during the construction phase of the project. 1983 Wis. Act 27, sec. 953h(3).

These administrative and judicial review procedures were to apply to the construction of any new metropolitan prison which the legislature defined as ". . . any correctional institution in a city having a population of 500,000 or more the site for which is designated by the legislature by statute on or after the effective date of this section (1983), but prior to January 1,1985." 1983 Wis. Act 27, sec. 953h. At the time of the passage of the 1983 budget bill, only the Menomonee Valley site described above was included in the classification of "any new metropolitan prison."

The Milwaukee Brewers Baseball Club, which exhibits major league professional baseball games at County Stadium (owned by Milwaukee county) in Milwaukee, ánd Ray Jackson and Ray Jackson's, Inc., the individual and corporate owners of a restaurant located near County Stadium, brought suit against DHSS in Dane county circuit court, alleging that these provisions in the budget bill violate the Wisconsin Constitution.

There are two threshold questions to resolve before reaching the fundamental equal protection issue: first, did this legislation create a distinct classification of citizens; and second, if so, did this legislation treat the class significantly differently from all others similarly situated?

The answer to the first question is clear: the legislation created a very small, very distinct, and very closed class of citizens — those with standing to challenge the construction of a prison in the area bounded by 35th Street, Interstate 94 and the Menomonee River.

Language in the statute limits its application only to citizens of the City of Milwaukee and only to sites designated by the legislature between July 1,1983, and January 1, 1985. Any sites in the City of Milwaukee designated before or after those dates are not affected. Regardless of the dates of construction, any other prison site located in Milwaukee county outside the city limits, or anywhere else in southeastern Wisconsin, is not affected.

The practical effect of this law, however, particularly in view of language which prohibits the DHSS from acquiring "... any additional property for a correctional institution in the city of Milwaukee prior to January 1, 1985, unless the site is designated by the legislature" is to preclude application of this law to anyone other than a citizen with standing to challenge the Menomonee Valley prison. See sec. 46.05(lo)(a), Stats. Why this is so is apparent from the legislative history of prison siting for the southeastern section of this state. As the state points out in its brief, "[i]nitial efforts to locate a prison in southeastern Wisconsin, including legislation specifying the prison be built on one of three sites in Milwaukee were frustrated for political reasons." Reply brief at 13, citing ch. 221, sec. 353, Laws of 1979. (Footnote omitted.) With enactment of this law, the legislature took a stranglehold over the prison siting process in the City of Milwaukee, including taking unto itself the power of approving purchases by DHSS in the city for the purpose of prison construction. Thus, although the language of the law made attempts to confine the application to the city, it is apparent on the face of the act, as well as from the legislative history, that the application was even more restricted than that. At the time this law passed, it was sheer absurdity to believe that the legislature would, sometime prior to January 1,1985, engage in the self-flagellation involved in any attempt to purchase land in the city for a prison, much less that it would designate an additional site in the city. Subsequent events, of course, have shown this to be true. This legislation had as its target — its only target — the Menomonee Valley prison and those with standing to challenge it.

The second threshold question is whether the treatment of those within the class is significantly dissimilar from the treatment of those not within the class. This question deserves a thorough analysis. Spelling out in detail the dissimilarities of treatment allows a better perspective for consideration of the equal protection issue and the values which underlie that guarantee.

The dissimilarities in treatment are substantial: while the persons having standing in this case receive only an informational hearing in the EIS process, persons in the usual case are entitled to a contested case hearing.

Absent this special legislation, the Brewers would have been entitled to a contested case hearing. As the DHSS's regulations state, any person who meets the qualifications contained in sec. 227.064(l)(a)-(d), Stats., and who complies with certain procedures for requesting a hearing shall receive a contested case hearing on the issue of whether the EIS complies with requirements of sec. 1.11. HSS 35.11(4), Wis. Adm. Code.

Section 227.064(l)(a)-(d), Stats., provides for a contested case hearing, upon proper request, if:

"(a) A substantial interest of the person is injured in fact or threatened with injury by agency action or inaction;

"(b) There is no evidence of legislative intent that the interest is not to be protected;

"(c) The injury to the person requesting a hearing is different in kind or degree from injury to the general public caused by the agency action or inaction; and

"(d) There is a dispute of material fact."

We have recently explained that this "clear and unambiguous" language "creates a residual hearing right" to serve "as a safety net." Milwaukee Met. Sewerage Dist. v. DNR, 126 Wis. 2d 63, 72-73, 375 N.W.2d 649 (1985). We conclude that the Brewers satisfy the four conditions of sec. 227.064(l)(a)-(d)

We have today, in Milwaukee Brewers Baseball Club v. DHSS, 130 Wis. 2d 56, 387 N.W.2d 245 (1986), held that the Brewers have standing to challenge in court the sufficiency of the final EIS. Page 59. That holding is predicated on the conclusion that the plaintiffs suffer injury, or the threat of injury, from the agency's action. Further, the Brewers' potential economic injuries are sufficiently "substantial" to satisfy the test of sec. 227.064(1)(a), Stats.

Secondly, there is no evidence of legislative intent to leave the Brewers' interests unprotected; to the contrary, this court has consistently concluded that the purposes of environmental protection acts include protection against the kinds of injuries to environmental and recreational interests which the Brewers in this case allege. Fox v. DHSS, 112 Wis. 2d 514, 525, 334 N.W.2d 532 (1983); Hanly v. Mitchell, 460 F.2d 640, 647 (2nd Cir. 1972), cert. denied, 409 U.S. 990 (1972). On this record, we see no intent of the legislature to withdraw such protection from the class which the Brewers represent. Therefore, we conclude that the test of sec. 227.064(l)(b), Stats., is satisfied.

That these plaintiffs have suffered or may suffer an "injury . . . different in kind or degree from injury to the general public . . under sec. 227.064(1), Stats., is evident. These plaintiffs operate businesses immediately adjacent to the proposed site. Clearly their continuing economic success depends greatly on maintaining pleasant surroundings to which they can attract consumers spending discretionary entertainment dollars. Any injury to their economic interests, therefore, differs in kind and degree from any injury to the general public which may result from an adverse impact of the site on physical conditions in the area. For this reason, plaintiffs meet the test of sec. 227.064(l)(c).

Finally, we conclude that the Brewers satisfy the standard of sec. 227.064(l)(d), Stats., in several respects. They dispute a number of issues "of material fact" which underlay the DHSS's conclusions, such as its conclusions about the impact of the prison site on traffic congestion, emergency vehicle access and economic conditions in the area.

We do not find dispositive the plaintiffs' failure to file a formal request for a contested case hearing, as required in sec. 227.064(1), Stats., and HSS 35.11(4)(a), Wis. Adm. Code. Because the legislature had specifically exempted these plaintiffs from the right to a contested case hearing, there was no reason for them to request a hearing.

Having determined that, absent the special legislation at issue here denying them a contested case hearing, the Brewers would have been entitled to one, we turn now to the differences between an informational hearing and a contested case hearing. We conclude that the differences, both procedurally and substantively, are significant.

In a contested case, a party may call adverse witnesses. Section 227.07(3), Stats.; HSS 35.11(4)(c)3.a., Wis. Admin. Code. Not so in an informational hearing.

In a contested case, a party may conduct cross-examinations. Section 227.08(6), Stats. Not so in an informational hearing.

In a contested case, a party has the means of discovery, except written interrogatories and depositions on written questions, available through judicial proceedings set forth in ch. 804, Stats. Section 227.08(7); HSS 35.11(4)(c)2. Wis. Admin. Code. Not so in informational hearings.

In a contested case, the proceeding may be conducted under oath. Section 227.09(l)(a), Stats. Not so in an informational hearing.

In a contested case, the factual basis of the decision consists solely of the evidence and matters officially noticed. Section 227.07(9), Stats. Not so in an informational hearing.

Given the highly politicized nature of the issue in this case, it is also significant that ex parte communications — the definition of which, under sec. 227.13, Stats., could include comments by elected officials to the secretary of DHSS — are forbidden in contested cases, and it is material error when a party not notified of an ex parte communication is prejudiced by the inability to rebut facts presented and when improper influence upon the decision-making appears with reasonable certainty. Seebach v. Public Service Commission, 97 Wis. 2d 712, 721, 295 N.W.2d 753 (Ct. App. 1980). We raise this point, not to allege its occurrence, but to highlight yet another distinction between a contested case and an informational hearing. As this court has previously said, "[t]he absence of such recognized judicial safeguards as the right to cross-examine and also the ability of the commission to base its opinion upon ex parte evidence heavily burdens the position of one who disagrees with the conclusions of an administrative agency after a legislative-type hearing." Ashwaubenon v. Public Service Comm., 22 Wis. 2d 38, 47, 126 N.W.2d 567 (1963).

An additional critical distinction between the classes is that challengers to the Menomonee Valley prison are not able to obtain an injunction or temporary restraining order, stay or other provisional remedy or any extraordinary remedy from a circuit court unless they prove "by clear and convincing evidence" that defects in DHSS's compliance with sec. 1.11, Stats., or 1983 Wis. Act 27, 2020(32m) cannot be remedied during the construction phase of the project. In contrast, challengers to other prison sites are able to obtain such relief from a reviewing court upon "... such terms as it [the court] deems proper.. . ." Section 46.0435(3) and sec. 227.17. This is a restriction of the circuit court's equitable powers which, in many instances, would disadvantage the class to which it applies.

Having established the creation of a narrow class of citizens whose treatment under the law is significantly dissimilar from all other citizens who might challenge prison construction elsewhere in the state, we turn now to the fundamental issue, equal protection.

The Brewers contend that the prison siting legislation violates the equal protection guarantee by placing Milwaukeeans opposing the Menomonee Valley site in a class apart from persons opposing all other prison sites within or outside the boundaries of Milwaukee. It is only those persons with standing to oppose this one specific site in the Menomonee Valley who are governed by the truncated judicial and administrative procedures applicable to review of the environmental impact of the site.

Relying exclusively on the five factor test set forth in Harris v. Kelley, 70 Wis. 2d 242, 234 N.W.2d 628 (1975) for measuring the reasonableness of a legislative classification under the state constitution's equal protection guarantee, the Brewers argue that the classification in the prison review legislation is unconstitutional. The Harris court set forth the following five factors:

"(1) All classifications must be based upon substantial distinctions which made one class really different from another.

"(2) The classification adopted must be germane to the purpose of the law.

"(3) The classification must not be based upon existing circumstances only and must not be so constituted as to preclude addition to the numbers included within a class.

"(4) To whatever class a law may apply, it must apply equally to each member thereof.

"(5) The characteristics of each class could be so far different from those of other classes as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation." Harris at 252.

While the plaintiffs rely exclusively on the five factor test, a review of the origins of this test and its application reveals that the test is not the exclusive standard for determining whether a classification violates the state constitution's equal protection guarantee. As the Harris court acknowledged, the five factors are merely aids in applying the general principle that"... a classification, though discriminatory, is not arbitrary or capricious, and therefore not violative of the equal protection requirement, if any statement of facts reasonably can be conceived which will sustain it." Harris at 254.

Thus, while the five factor test provides a useful analytical tool, it is not per se determinative. The basic question is whether there is a reasonable basis to justify the classification.

"If a statutory classification does not involve a suspect class or a fundamental interest, it will be sustained if there is any rational basis to support it. State v. Hart, 89 Wis. 2d 58, 64-65, 277 N.W.2d 843 (1979). Under those circumstances, equal protection is denied only where the legislature has made an irrational or arbitrary classification. Id. "The basic test is not whether some inequality results from the classification, but whether there is a reasonable basis justifying the classification." Omernik v. State, 64 Wis. 2d 6, 19, 218 N.W.2d 734 (1974). State v. Bleck, 114 Wis. 2d 454, 468-69, 338 N.W.2d 492 (1983). See also, Voit v. Madison Newspapers, Inc., 116 Wis. 2d 217, 225-26, 341 N.W.2d 693 (1984); State v. Asfoor, 75 Wis. 2d 411, 249 N.W.2d 529 (1977); State Bank of Drummond v. Nuesse, 13 Wis. 2d 74, 108 N.W.2d 283 (1961); State ex rel. Hickey v. Levitan, 190 Wis. 646, 210 N.W. 111 (1926); Maercker v. Milwaukee, 151 Wis. 324, 329, 139 N.W. 199 (1912).

A legislative classification is presumed to be constitutional. The presumption of constitutionality implies that insofar as the constitutionality of legislation depends upon facts, the facts are presumed to exist until shown otherwise. Hurst, Dealing with Statutes 3 (1982); Hurst, The Functions of Courts in the United States, 1950-1980, 15 Law & Soc. Rev. 401, 455-62 (1980-81). The burden is on the challenger to prove unconstitutionality beyond a reasonable doubt.

The basic test is not whether some inequality results from the classification but whether there exists a rational basis to justify the inequality of the classification. Any reasonable basis for the classification will validate the statute. A statute will be declared viola-tive of equal protection only when the legislature has made an irrational or arbitrary classification, one that has no reasonable purpose or relationship to the facts or a proper state policy. Omernick at 18-19; Simanco, Inc. v. Department of Revenue, 57 Wis. 2d 47, 57, 203 N.W.2d 648 (1973). When a court concludes that a portion of a legislative enactment is unconstitutional, it may sever that portion and declare the remaining portion constitutional. Bence v. Milwaukee, 84 Wis. 2d 224, 233, 267 N.W.2d 25 (1978).

We, therefore, turn to the question of whether there was a rational basis for these legislative actions. The legislature's actions here were twofold. First, the legislature directed that a prison be constructed in the Menomonee Valley. Second, the legislature directed that a truncated WEPA and judicial review process apply to those who might challenge the Menomonee Valley prison, thereby singling them out from all others who might challenge other prison construction in the state. In other words, the objective was a prison in downtown Milwaukee in order to meet the critical statewide need for more prison space; the means chosen to reach that objective was a truncated WEPA and judicial review process. (For a discussion of the range of findings and choices implicit in a statute, see W. Hurst, Dealing With Statutes at 78-81). We conclude there is no rational basis, articulated in the statute or otherwise, to support the means which the legislature chose to accomplish its objective.

The state argues that the legislature articulated a credible rationale for both of its actions. However, the only rationale which is "articulated" within the statute is the legislative finding that "[t]he legislature finds that prison overcrowding is a critical problem in this state .1983 Wis. Act 27, sec. 2020(32g)(a). (Emphasis added.) In section 2020(32g)(e) of the Act, we are told that "[t]he legislature finds that the overall organization of state correctional facilities is a matter of statewide concern." (Emphasis added.)⁴ That "articulated" rationale supports only the first action of the legislature, i.e., building a prison in the Menomo-nee Valley; it gives no support whatsoever to the second action of the legislature, i.e., singling out the Me-nomonee Valley challengers for dissimilar treatment.

The state, by relying on the articulated rationale in the statute as establishing a rational basis for treating Menomonee Valley challengers differently, is, in effect, saying that because prison overcrowding is a critical problem in this state, it is rational to treat Me-nomonee Valley challengers differently from all others. That proposition simply does not withstand analysis. The articulated rationale unquestionably provides a rational basis for the legislative action directing that a prison be built in the Menomonee Valley. But that is not the question.

The articulated rationale clearly would provide a rational basis for a truncated set of environmental and judicial review rules for all prison construction, had the legislature chosen to so direct, but that is not the question either.

The question is whether the articulated rationale, i.e., the critical statewide need for prison space, provides a reasonable basis to deny rights to Menomonee Valley challengers. It does not. There are critical links that are missing. There must be more. The statute, however, provides no more.

The state urges us to construct those critical links by relying on the Fiad Report. The legislature, however, relied solely on the articulated rationale of the critical statewide need for prison space. The legislature articulated no other basis, such as the Fiad Report, for its actions. Had the legislature not chosen to articulate its rationale, we would be obligated to construct one if possible. Sambs v. City of Brookfield, 97 Wis. 2d 356, 371, 293 N.W.2d 504 (1980).

However, here the legislature did declare its rationale, which thereby arguably presents a different burden on the challenger and a different review for us:

"One may fairly question whether, if the challenger rebuts the declared rationale, he should be required to go further and offer rebuttal to other conceivable bases for the act which the legislature did not choose to mention. The Supreme Court has not spoken plainly to this point, but some opinions indicate that the Court may require of the challenger that he rebut only the justification which the statutory text explicitly sets out. There is a caution here for draftsmen. The legislature does not violate the separation of powers by declaring its findings and justification in a preamble, and such a declaration, though not binding on the judges, may add substantial support to the presumption of constitutionality. But the presence of the preamble may also deny the statute the full range of supporting hypotheses which the court might be willing to invoke where the legislature has not committed itself to a specified rationale." Hurst, Dealing With Statutes at 94-95. (Footnotes omitted.) See especially p. 122 n. 66.

If we were to attempt to construct the missing links, notwithstanding the arguable lack of obligation to do so, the only source suggested by the state is the Fiad Report. The state suggests no other.

The Fiad Report does nothing more than supply the missing link which would support legislative action expediting the environmental and judicial procedure for all prison construction in southeastern Wisconsin. The Fiad Report supports the proposition that the critical need for prison space exists in southeastern Wisconsin. It does not single out the City of Milwaukee (much less the Menomonee Valley within the City of Milwaukee) as having a special, critical need. The need, as stated time after time in the Fiad Report, is in southeastern Wisconsin.

As we understand the arguments of the state, it is saying: because there is a critical need for prison space in this state and because this need is most critical in southeastern Wisconsin (as supported by the Fiad Report), it is therefore reasonable to treat those who object to the Menomonee Valley site differently from all other citizens in this state. For that proposition to be reasonable, there must be another critical link, but it remains missing. There is nothing in this record, nothing in the arguments submitted by the state, and nothing in the Fiad Report to provide that critical link. The focus of the Fiad Report is not on the City of Milwaukee. The Fiad Report supports no such proposition, either literally or by implication. The need, as the Fiad Report indicates, is in southeastern Wisconsin.

The absence of that critical link is fatal to the legislation. The legislature may well believe that the critical need is in the City of Milwaukee. What the legislature believes is not determinative; the test is not whether the legislature had a rationale. It will always have a rationale for anything it does. The test is whether the rationale is rational. If the concept of equal protection is to be meaningful, equal protection cannot be interpreted so as to allow the legislature to exercise its will on a minority of citizens anytime it desires so long as there is any rationale to do so, regardless of how remote, fanciful, or speculative the rationale may be. To be rational for the purpose of equal protection analysis, the legislative rationale must be reasonable. Put another way, ". . . in application to policies, projects, or acts, RATIONAL implies satisfactory to the reason or chiefly actuated by reason. . . ." Webster's Third New International Dictionary 1885 (1961).

We conclude there is no rational basis to treat the Menomonee Valley prison differently from any other prison in southeastern Wisconsin. We do not dispute that prison overcrowding is a critical problem in this state which needs immediate resolution. Nor do we take issue with the modern theory of penology that the worthwhile goal of prisoner rehabilitation is best served when prisons are located close to the inmate's home community. And we endorse the goal of affirmative action in the hiring of prison personnel which, as a practical matter, is more easily accomplished in the more heavily urbanized areas of the southeastern part of this state. These societal goals, however, are not limited to the neighborhood of 35th Street and the river; the truncated WEPA and judicial review procedures are. The urgency of prison construction does not end at the neighborhood of 35th Street and the river; the truncated WEPA and judicial review procedures do. It is this unequal treatment we find to be without rational basis and thus violative of sec. 1, art. I of our constitution.

We recognize that the legislature, in attempting to remedy perceived problems, is not required to strike at all problems at the same time. Omernick at 20. As Justice Heffernan wrote for the majority in State ex rel. Harvey v. Morgan, 30 Wis. 2d 1, 139 N.W.2d 585 (1966):

"We have previously held that in all legislative classifications there are always cases just within and just without the borderlines. Undoubtedly, in most classifications the line of demarcation fixed by the legislature is not the only one that could have been selected. Within the limits of what is reasonable it is for the legislature and not for the court to determine the exact point at which a classification is to operate. A beginning must be made somewhere, and it is a legislative function to determine it. If that determination is reasonable in accordance with the tests of classification that have been established judicially over the years, this court will not hold it invalid." State ex rel. Harvey at 9. (Footnote omitted.) (Emphasis added.)

However, the line of demarcation which the legislature established here separates the Menomonee Valley area from the rest of the southeastern section of the state. It can scarcely be argued that this site is "just within" or "just without" the "borderlines" of southeastern Wisconsin, much less the entire state.

When the state argues that "[t]he obvious reason for choosing southeastern Wisconsin is because that is where the population is concentrated . . .," it is arguing that population characteristics of the area are the major reason to establish prisons in the area. Reply brief at p. 13. Had the legislature established as its line of demarcation the boundaries of Racine, Kenosha or Milwaukee counties, or just Milwaukee county alone, a more difficult legal question would be presented. It did not.

Instead, the legislature chose to fix a very small, very precise parcel of land as the exact locus of the classification. Persons with standing to challenge a prison on the 1-square-mile parcel where 35th Street meets the Menomonee River have less protection than do persons with standing to challenge a prison anywhere else in the state. They have less protection than do persons in the 2,290-square-mile southeast section. They have less protection than do persons anywhere else in the 241-square-mile county of Milwaukee. They even have less protection than do persons located a few blocks away, who might challenge a future prison designated for the other side of the interstate.

We are neither unaware nor unsympathetic to the inordinate political difficulties of prison siting. Society faces many difficult problems, in addition to prisons, that are the ultimate responsibility of government to resolve. Unfortunately, many people want these difficult problems dealt with at someone else's burden. It is precisely because of this attitude that the guarantee of equal protection of the law is essential, lest the problems of the many are resolved at the expense of the few.

The legislature must have a rational basis to support the dissimilar treatment given here, or else it must fall under the weight of the guarantee of equal protection. We find no rational basis for the distinction, and accordingly conclude that sec. 46.0435(3), Stats., relating to injunctions and other remedies, and 1983 Wis. Act 27, sec. 2020(32m)(f), relating to environmental impact hearings, in their entirety, violate the Wisconsin Constitution's guarantee of equal protection of the law.

II. PRIVATE OR LOCAL

We turn now to the final issue.

Once more we are forced to address the recurring problem of what constitutes a private or local law within the meaning of art. IV, sec. 18 of the Wisconsin Constitution.⁵ This is not the first time this court has been called upon to resolve this question, nor, presumably, will it be the last. We were forthright in acknowledging in Soo Line R. Co. v. Transportation Dept., 101 Wis. 2d 64, 303 N.W.2d 626 (1981) that deciding what is a private or local law has been difficult and that an accurate, comprehensive definition of the phrase "private or local" has eluded this Court and other states. Id. at 73.

The resolution of this issue is important to the legislature as it confronts, and is forced to decide, the myriad of proposals presented to it. Society, government, and the legislative process have become increasingly complex. Nowhere is this seen more dramatically than in the state budget bill and the process by which that bill becomes law.

However, we do not address here the process by which the budget bill becomes law. That process has been criticized and defended by friend and foe alike. The legislature is the determiner of its own process, subject only to the will of the electorate, which elects the members, and the constraints of the constitution. Hurst, Dealing With Statutes at 23, 25, 52. We address only the contraints of the constitution, specifically art. IV, sec. 18.

Article IV, sec. 18 was adopted as part of the original constitution of 1848 and has remained unchanged. Treatises on the subject, and cases analyzing it, reveal three underlying purposes of art. IV, sec. 18: 1) to encourage the legislature to devote its time to the state at large, its primary responsibility; 2) to avoid the specter of favoritism and discrimination, a potential which is inherent in laws of limited applicability; and 3) to alert the public through its elected representatives to the real nature and subject matter of legislation under consideration. These purposes were well stated recently in Soo Line. Justice Abrahamson, writing for the court, said:

"State constitutional provisions regulating private, local, and special legislation were adopted in response to the changing conditions in which 19th century state legislatures found themselves. State legislatures were under pressure from their constituents to act on a multitude of subjects. The volume of laws drastically increased, and private or local laws dramatically outnumbered the general laws. The proliferation of laws of limited applicability created the specter of favoritism and discrimination and diverted the legislature's attention from matters of public, state-wide importance. The constitutional proscriptions against special, private or local legislation were intended to prevent the granting of special privileges or the imposition of special disabilities and to encourage the legislature to devote its time to the interests of the state at large. Hurst, The Growth of American Law: The Law Makers, 30, 66, 79, 229, 233-34 (1950); Cloe & Marcus, Special and Local Legislation, 24 Ky. L.J. 351, 355-358 (1936). The constitutional limitations seek to insure that the legislature and the people of the state are advised of the real nature and subject matter of the legislation being considered to avoid fraud or surprise.

"Sec. 18, art. IV of the Wisconsin Constitution is designed to protect the public from legislative enactment of statutes whose effect is unknown to legislators and to the people of the state and to direct the legislator's attention to the proposed law to forestall improvident legislation, fraud and surprise. This court expressed the reasoning underlying sec. 18, art. IV, Const., as follows:

'". . . The framers of the constitution, in adopting sec. 18, art. IV, intended to guard against the danger of legislation, affecting private or local interests, being smuggled through the legislature under misleading titles, by requiring every bill affecting such interests to be under a title likely to call attention of the lawmakers to its character, and likewise the attention of the people affected, to the end that every member of the legislature may intelligently participate in considering such bill and all objections thereto may be presented.' Milwaukee County v. Isenring, 109 Wis. 9, 23, 85 N.W. 131 (1901)." Id. at 71-73.

The language of art. IV, sec. 18 is easily understood, difficult in application. To determine whether a law is "private," a court generally focuses on the application of the law to particular entities, including individuals. See Soo Line at 75-76. To determine whether a law is "local," this court has used several tests over the years. In Milwaukee County v. Isenring, 109 Wis. 9, 85 N.W. 131 (1901), the court focused on the geographic specificity of the challenged legislation explaining,

"[a]n act is 'general,' as contradistinguished from and inconsistent with 'local,' . . . only when its operation extends to the whole state, or perhaps to the whole of some class of localities therein. . . .

" '[I]f the act be local as to territory, no matter how public it may be in its character, it can contain but one subject, and that must be expressed in the title.'" Id. at 19-20.

As we explained in Soo Line, this court supplemented its Isenring territorial definition of "local" in Monka v. State Conservation Comm., 202 Wis. 39, 231 N.W. 273 (1930). In Monka the court reviewed a bill enacted by the legislature to control net fishing in Lake Michigan. The court concluded that the law was not local, even if it applied to certain state waters:

"Are bills on subjects of such general and statewide concern, which are enacted for the general welfare of all of the people of the entire state, merely 'local' because in their execution they operate territorially upon a particular section of the state only? If so, many of our fish and game laws, and enactments for the location, construction, and maintenance of state institutions at specified locations, are invalid because they have been enacted as general and not as merely local laws. Although under their provisions the execution of those laws is to occur only at some specified locality, the ownership of such institutions is in the state, for the use and benefit of the entire public, all of whom have a general interest and concern therein, as they also have in the wild animals and fish, title to which is likewise in the state, in trust for the public. All that is held by the state, as proprietor, trustee, or in some governmental capacity, is a matter of general and state-wide concern, wherever located, and whenever it constitutes the subject of proposed legislation the bill relating thereto is not merely a matter of local interest or concern, or a merely 'local' bill, within the meaning of sec. 18, art. IV, Const." Id. at 41-42.

Monka firmly established the principle that geographic or entity specificity does not automatically render a law "private or local" under art. IV, sec. 18, where the subject matter of the enactment is a responsibility of the state. Soo Line at 75. The Monka court considered the operation of a bill to extend to the whole state "... when the subject thereof is such that the state itself has an interest therein as proprietor, or as trustee, or in its governmental capacity, for the benefit or in the interest of the general public.'" Soo line at 75, citing Monka. Thus, we see in Monka the principle that geographic or entity specificity does not automatically render a law private or local if the general subject matter of the provision relates to a state responsibility of statewide dimension.

However, Monka does not establish the principle that a geographically or entity specific provision which relates to a state responsibility will always escape the proscription of art. IV, sec. 18. The Monka court was careful to point out that this "state-wide concern exception" does not include". . .a bill which merely imposes a burden or confers a benefit upon specified persons or localities, which do not constitute a legitimate class for the purpose of general legislation under the established principles of classification of cities for such purpose." Monka at 46. Thus, we also see emerging in Monka the principle that even if the subject matter does relate to a state responsibility of statewide concern, the provision must be subjected to further scrutiny. That principle which began to emerge in Monka came through clearly in Soo Line.

In Soo Line the challenged budget review bill included a provision requiring the Soo Line Railroad to establish an at-grade crossing at a specified location where the railroad's tracks crossed a state highway. The Department of Transportation had been unable to convince the Public Service Commission that an at-grade crossing was sufficient at the specified location. The Public Service Commission determined that the crossing should be an overhead crossing for safety reasons. A reviewing court subsequently upheld this determination. The legislative provision countermanded that determination and said that " 'Notwithstanding section 195.28 and 195.29 of the statutes or any order made thereunder. . . . The department of transportation and Soo Line Railroad Company shall establish an at-grade crossing.. . .'" Soo Line at 69. (Citation omitted.)

The general subject matter of the provision in Soo Line was construction of railroad crossings, unquestionably a subject mattér of state responsibility of statewide dimensions. The state has responsibility for the safety of all railroad crossings in the state. Chapter 195, Stats. Nevertheless, the court concluded that the provision was a "private or local" law.

The analytical framework which the Soo Line court used is revealing. The subject matter of the provision — railroad crossings — was unquestionably a matter of state responsibility of statewide dimension. However, the court did not end its inquiry at that point. Noting that the burdens and benefits of these provisions were on a specific geographic location and a specific entity, the court went on and analyzed the provision both in terms of the espoused statewide concern of highway safety and in terms of the direct and immediate effect this railroad crossing would have on that concern. The Department of Transportation had argued that the railroad crossing would have an effect on highway safety, a matter of statewide concern. The court rejected the argument of the state. The espoused statewide concern of highway safety was of a relatively generic nature. Indeed most legislation is enacted under the state’s relatively generic police power to protect or preserve the state's concern in the safety, health, welfare, morals, and security of the state's citizens. In Soo Line, the state's reliance on the relatively generic nature of the statewide concern was insufficient. Furthermore, the effect on highway safety in general was neither direct nor immediate. The court insisted on a more direct and immediate effect on a more specific statewide concern.

Thus, the basic principle that emerges from Soo Line is that a geographic or entity specific provision is not automatically validated by the fact that the provision relates generally to a subject matter of state responsibility of statewide dimension. The Soo Line court recognized that legislation relating to a specific location or entity inevitably imposed burdens or benefits on that entity or location. This in turn brought into issue the values and the purposes underlying art. IV, sec. 18. Thus, in order to assure that the specter of favoritism or discrimination was not present, and to assure that a provision of unknown subject matter was not "smuggled" through the legislature, the court insisted that the enactment of the provision have a direct and immediate effect on a specific statewide concern.

Soo Line also spoke to a distinction between art. IV, sec. 18 and art. I, sec. 1, relating to equal protection. In discussing the effects of the law in question, the Soo Line court concluded that the Soo Line Railroad had been especially burdened in two ways: 1) the Soo Line Railroad, and only the Soo Line Railroad, was burdened with present and future costs of the crossing; and 2) the budget review bill subjected the Soo Line Railroad to a significant departure from normal rules generally applicable to projects of this nature. Having determined the separate classification and the dissimilarity of treatment, the court did not apply the rational basis test of equal protection analysis, but rather proceeded to determine whether the enactment of the provision would have a direct and immediate effect on a specific statewide concern. This is a critical distinction between art. IV, sec. 18 and art. I, sec. 1. As stated in the equal protection section above, a violation of equal protection occurs only if there is no rational basis for the dissimilar treatment of those within the classification. In a challenge brought under art. IV, sec. 18, it is not relevant to inquire as to whether a rational basis existed for the legislative provision.

From these cases, as well as the underlying purposes of art. IV, sec. 18, we conclude that there is an analytical framework that can be drawn to assist the legislature, and this court, in determining whether a legislative provision is a private or local law within the meaning of art. IV, sec. 18.

From Isenring, we learn that a "local" law focuses on the application of the law to particular geographic site, and a "private" law focuses on the application of the law to particular entities, including individuals. From Monka we learn that geographic or entity specificity does not automatically render a law private or local if the general subject matter of the provision relates to a state responsibility of statewide dimension. From Soo Line we learn that a geographic or entity specific provision is not automatically validated by the fact that the provision relates to a general subject matter of state responsibility of statewide dimension. If the provision is geographic or entity specific, its enactment must have a direct and immediate effect on a specific statewide concern or interest.

Consistent with these principles and the purposes underlying art. IV, sec. 18, we hold that a legislative provision which is specific to any person, place or thing is a private or local law within the meaning of art. IV, sec. 18, unless: 1) the general subject matter of the provision relates to a state responsibility of statewide dimension; and 2) its enactment will have direct and immediate effect on a specific statewide concern or interest.

This test, which determines whether this type of specific provision is an exception to the separate bill requirement, is a two-part test. Both must be fulfilled in order for the provision to be an exception to the separate bill requirement. The general subject matter of the provision must relate to a state responsibility of statewide dimension. In addition, the enactment of the provision must have direct and immediate effect on a specific statewide concern or interest. By "specific" we mean more than a relatively generic interest or concern such as found in Soo Line. As we said earlier, most legislation is enacted under the state's relatively generic police power in the safety, health, welfare, morals, and security of the state's citizens. An appeal to those generic concerns or interests is insufficient; there must be more.

We conclude that this test will accomplish the underlying accountability objectives of art. IV, sec. 18. It removes the specter of favoritism or discrimination from the legislation because the test, by requiring a state responsibility and a specific statewide concern or interest, assures that the focus is on the resolution of a statewide problem, rather than primarily a private or local problem. It assures that the public through its elected representatives will be alert to the real nature and subject matter of the provision, because the test requires not only that the provision address a matter of specific statewide concern, but that its effect also be direct and immediate. Such a provision by its very nature will generate widespread legislative attention and scrutiny prior to its enactment.

This test recognizes that general legislation which legitimately serves the public interest will often incidentally confer a benefit or burden on particular entities or locations. This test protects that legislation. The test also recognizes that the legislative process, including the budget bill process, is a process which requires compromise. However, in that process the special interests of the few are sometimes overrepresented and the particular interests of minorities are sometimes underrepresented.⁶ Accordingly, this test is designed to guard against legislation which "smuggles" items which primarily serve the interests of a few into general bills, conferring benefits on the few which the legislature might not confer if it addressed the same issue in a bill on that subject only. At the same time the test is designed to guard against the legislature's "smuggling" items which serve a general need at the special expense of the few into general bills, thereby burdening the few in ways which the legislature might avoid if compelled to address the same issue in a bill on that subject only. In short, this test does no more and no less than to require that legislators remain accountable to the electorate for all their actions, including those which touch the interests of the few, by treating general and "private or local" laws separately.

This test, applied to the facts of Soo Line, provides an example of its application. The legislative provision in Soo Line was both entity and location specific. The provision involved a matter of state responsibility of statewide dimension — the construction of railroad crossings. The espoused statewide concern for highway safety was not sufficiently specific, nor was the effect on statewide highway safety direct and immediate. The court correctly concluded that the legislative provision required a separate bill.

Having stated the test, we turn to an analysis of the legislation before us, in order to determine whether it is a private or local bill within art. IV, sec. 18. The legislative provision in the 1983 budget bill reads as follows:

"46.05(lo)(a) In addition to the institutions under sub. (1), the department shall establish a correctional institution located in Milwaukee in the area bounded on the north by highway I 94, on the south and west by the Menominee river and on the east by 35th street on property owned by the Milwaukee road railroad on March 28, 1983. The department may acquire additional land owned by the Milwaukee road railroad on March 28,1983, on the west and south sides of and contiguous to the Menominee river. The department may proceed to acquire the property specified under this subsection, except that if s. 85.09 applies the department shall proceed in cooperation with the department of transportation under s. 85.09(4g)(b). The department shall not acquire any additional property for a correctional institution in the city of Milwaukee prior to January 1, 1985, unless the site is designated by the legislature by statute." 1983 Wis. Act 27, sec. 953p.

The title of the 1983 budget bill made no reference to the Menomonee Valley prison.

This is the only provision to which we direct this analysis. We determined above that those provisions relating to the truncated WEPA process and the special judicial review violated the Wisconsin Constitution's guarantee of equal protection. Accordingly, we severed those provisions and they are no longer before us.⁷

We can scarcely conceive of a bill that is more geographically specific. As described by the court of appeals, the bill designated the prison site with a precision approaching a conveyancer's description. This conclusion, however, does not end our inquiry; it begins it.

We next determine whether the general subject matter of the provision is a matter of state responsibility of statewide dimension. All parties concede this point, and we agree. The general subject matter — the construction of a medium/maximum prison — is a matter of state responsibility of statewide dimension. It is the responsibility of the state to maintain a statewide prison system, including, when necessary, construction of new prisons.

Finally, we must determine whether the enactment of this provision will have direct and immediate effect on a specific statewide concern or interest. This, of course, requires a determination, first, whether there is a specific statewide concern or interest. The circuit court found, as a matter of fact, that "[b]uilding the Menomonee Valley prison affects not only Milwaukee County, but also the entire state by alleviating a serious problem of prison overcrowding and by promoting a fair system of judicial administration and law enforcement."

We agree. As stated in the state's brief, continued overcrowding affects the living and working conditions at correctional facilities throughout the state. The use of old and overcrowded facilities may very well adversely affect correctional and rehabilitation efforts. Inadequate facilities may result in inadequate security and increase risks to the prisoners, staff and citizenry. This is not the "relatively generic" type of statewide concern found in Soo Line. The legislature's finding in 1983 Wis. Act 27, sec. 2020(32g)(a) "... that prison overcrowding is a critical problem in this state," with which the circuit court agreed, is the specific type of statewide concern which we failed to find in Soo Line.

Thus, having determined this provision addresses a specific statewide concern or interest, we must resolve the final question of whether enactment of the provision will directly and immediately affect that statewide concern. The answer is self-evident. The effect will be direct because the provision causes a prison to be built in the Menomonee Valley. It will be immediate because upon completion, the prison will immediately provide 450 spaces for prisoners, thereby immediately alleviating to a degree the crowded conditions at other state prisons.

Therefore, we conclude that this provision, because it relates to a matter of state responsibility of a statewide dimension, and because its enactment will directly and immediately effect the specific concern of overcrowded prisons, is constitutionally acceptable. The inclusion of the $51 million prison in the budget bill did not contravene the purposes underlying art. IV, sec. 18. The focus of the bill was on a matter of statewide concern, not a private or local concern. Given the nature of the concern, and the direct and immediate effects this provision had on that concern, the elected representatives of those members of the public affected by this provision had to be aware of it. After six years of struggle, a $51 million prison in the heart of Milwaukee could scarcely be "smuggled" through the legislature in any manner, shape, or form. The real nature and subject matter of this provision had to be known, and this, in turn, assured accountability. A legislator representing the affected area, who voted for the budget with this item included, could not with any credibility assert to a questioning constituent that the legislator did not know the prison was a part of the budget bill. Thus, the underlying purposes of art. IV, sec. 18, were met.

In the arguments made to this court, attention has been drawn to many other provisions contained within past budget bills, particularly budget bills of relatively recent vintage. Arguably, many provisions contained in past budget bills do not pass constitutional muster of art. IV, sec. 18. Arguably, many provisions would not withstand analysis under the test outlined in this opinion. We have not been asked, however, to address any other provisions; whether we would do so is a hypothetical question which we do not answer.

We hope that this test will be a useful tool for both the executive and legislative branches of government as they contemplate the possible contents of future budget bills as well as other bills of general title. Many budget bills lie ahead. We are not unsympathetic to the demands which the complexity of modern day society and government place on the legislature. In meeting its responsibilities, the legislature is the determiner of its process, subject to the constraints of the constitution.

Article IV, sec. 18 is not meaningless constitutional gesture. This court has the responsibility to give it force and effect consistent with reason. Prior cases and the underlying purposes of it provide the basis for doing so. The constitutional constraints of art. IV, sec. 18 act to inform the legislature that, if it desires to enact a geographic or entity specific provision, it must do so in a separate bill under separate title. The only exception art. IV, sec. 18 allows is for provisions whose general subject matter is a state responsibility of statewide dimension. Even for those provisions, enactment must have direct and immediate effect on a specific statewide concern or interest. Then, and only then, is the inclusion of the provision in a differently titled bill constitutionally acceptable.

By the Court. — The decision of the court of appeals is modified, and, as modified, affirmed.

1 Article I, sec. 1 provides: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to serve these rights, governments are instituted, deriving their just powers from the consent of the governed."

Article IV, sec. 18 provides: "No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title."

2 For region 2, the Fiad Report recommended four residential centers, one community correctional center, and one maximum security institution. For region 3, it recommended six residential centers, two community correctional centers, one medium security institution and one maximum security institution. Fiad Report p. 228.

3 The legislature set forth its findings in 1983 Wis. Act 27, sec. 2020(32g), as follows:

"(32g) NEW METROPOLITAN CORRECTIONAL INSTITUTIONS: LEGISLATIVE FINDINGS, (a) Prison findings. The legislature finds that prison overcrowding is a critical problem in this state which restricts the options available to judges, prosecutors and prison officials.

" (b) WEPA reaffirmation. The legislature reaffirms its commitment to the Wisconsin environmental policy act and the requirement that executive agencies conform to section 1.11 of the statutes and prepare environmental impact statements on major state actions significantly affecting the human environment. The legislature also recognizes that the issue of the siting of any new metropolitan correctional institution necessitates an expedited environmental review process and will require the direct action of the legislature in establishing the site for any new metropolitan correctional institution.

" (c) Site selection. The legislature recognizes its responsibility to consider environmental factors in designating the site for any new metropolitan correctional institution.

" (d) Judicial considerations. The legislature finds that the revised judicial review process and injunctive relief provisions are necessary to alleviate the problems described under paragraphs (a) and (b). The legislature requests that courts reviewing decisions under section 46.0435(2) of the statutes expedite the hearing of those cases to the fullest extent possible.

” (e) Statewide concern. The legislature finds that the overall organization of state correctional facilities is a matter of statewide concern. The establishment of any state correctional facility, including any new metropolitan correctional institution, is a matter of general, statewide interest to the public."

4 The legislature also listed under the title "Legislative Findings," first, its reaffirmation of its commitment to WEPA; and, second, its conclusion that". . . the issue of the siting of any new metropolitan correctional institution necessitates an expedited environmental review process _" 1983 Wis. Act 27, sec. 2020(32g)(b).

With respect to the first point, a reaffirmation of its commitment to WEPA can scarcely be used to credibly support a denial of basic rights under WEPA. With respect to the second point, the legislature cites no rationale, other than the critical statewide need for prisons, to support this conclusion.

5 Article IV, sec. 18, Wis. Const., provides: "No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title."

6 For discussion of the role of courts as a check on these legislative tendencies, see Hurst, Dealing With Statutes at 69-87; and N. Komesar, Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis, 51 U. CHI. L. REV. 366, 373-380, 416-20 (1984).

7 Section 990.001(11), Stats., provides:

"(11) SEVERABILITY. The provisions of the statutes are severable. The provisions of any session law are severable. If any provision of the statutes or of a session law is invalid, or if the application of either to any person or circumstance is invalid, such invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application."