Address
May 28, 1999






The Honorable Chuck Chvala
Chairman
Senate Committee on Organization
119 Martin Luther King Jr. Blvd., Room 101
Madison, WI 53702

Dear Senator Chvala:

  You have asked a series of questions regarding the construction and operation of private incarceration facilities in Wisconsin. For ease of analysis, I have organized your inquiry into four areas:

  (1)   Can a private company build an incarceration facility in Wisconsin?

  (2)   Can a privately built incarceration facility be sold or leased to the state?

  (3)   Can out-of-state prisoners be housed in Wisconsin?

  (4)   Can an incarceration facility in Wisconsin be operated by a private company?

  As a starting point, the management of incarceration facilities is a core state function. Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995). The U.S. Supreme Court has stated: “It is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.” Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973). Other cases have noted that the maintenance of penal institutions is an “essential part” of one of government’s “primary functions,” which is the preservation of societal order through enforcement of criminal law. Procunier v. Martinez, 416 U.S. 396, 412 (1974).

  In a 1988 opinion regarding privatization of the jailer function by a county, Attorney General Hanaway articulated the underlying framework of the sovereign power of the state as follows:

  As explained in State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 80, 205 N.W.2d 784 (1973), a governmental subdivision “may, by contract, curtail its right to exercise functions of a business or proprietary nature, but, in the absence of express legislative authority, it cannot surrender or contract away its governmental functions and powers,” not even partially. See also Wausau Jt. Venture v. Redevelopment Authority, 118 Wis. 2d 50, 59, 347 N.W.2d 604 (Ct. App. 1984). Consistent with this basic proposition, it is said that such an entity may not contract for the performance of public duties which the law requires its public officers or employes to perform . . . .

. . . .

  . . . The maintenance of law and order encompassed in the jailer function involves just such an exercise of the sovereign power of the state.

77 Op. Att’y Gen. 94, 95-96 (1988).

  In 1996, in answer to a related question, I adopted this rationale:

  This reasoning is applicable to all forms of incarceration for commitment of a crime . . . . In my opinion, with respect to matters exclusively or primarily of statewide concern, “if the legislature did not specifically confer a power, it is evidence of legislative intent not to permit the exercise of the power.” See State ex rel. Harris v. Larson, 64 Wis. 2d 521, 527, 219 N.W.2d 335 (1974).

OAG 1-96 at 7.

  With these basic principles in mind, your questions are specifically addressed:

  1.   Can a private company build an incarceration facility?

  In OAG 1-96, I concluded that a private company could construct a facility which conceivably could be used as a county house of corrections. The same would be possible for any incarceration facility. The building would have to be constructed in compliance with all applicable state laws, rules, codes and regulations, and would be subject to the ordinances or regulations of the municipality in which construction takes place, the same as any building.

  This answer is limited only to the bricks or mortar. The building’s use as an incarceration facility, its purchase or lease by the state, whether it could be run by a private company or whether out-of-state prisoners could be housed there, are entirely separate questions. Merely constructing a building and calling it an incarceration facility does not in any way mean it can be operated as such.

  2.   Can a privately built incarceration facility be sold or leased to the state?

  The acquisition of a privately built incarceration facility by the state would have to be within the state’s long-range public building program as expressed in Wis. Stat. § 13.48,
and have the additional approval of the Joint Committee on Finance, which is required by Wis. Stat. § 301.18(4).

  Wisconsin Stat. § 13.48(27) specifically allows the building commission to lease a correctional facility as part of the authorized state building program, with an option to purchase the facility by the state. Any lease must provide that the facility is in accordance with requirements and specifications approved by the Department of Administration. Id. Such a facility could also be purchased outright in lieu of state construction as long as the project were enumerated in the authorized state building program. Wis. Stat. § 13.48(19). Wisconsin Stat. § 301.18(4) additionally requires the approval of the Joint Committee on Finance for “[a]ny purchase, lease or construction of additional correctional facilities . . . .”

  3.   Can Out of State prisoners be housed in Wisconsin?

  The brief answer is that out of state prisoners, like any other prisoner, may be housed in Wisconsin only as expressly authorized by the state. Incarceration is one of the state’s sovereign powers. See 60 Am. Jur. 2d Penal and Correctional Institutions § 8 (1987). Sovereign powers belong exclusively to the state, and may be delegated only by express state action. See 81A C.J.S. States § 16 (1977) (“[T]he [sovereign] power of a state may be abridged only by its own action, which must be sanctioned by its statutes.”) The State of Wisconsin has only authorized the incarceration of out of state prisoners as set forth in the Interstate Corrections Compact. See Wis. Stat. § 302.25. It follows that no other entity may house out of state prisoners in Wisconsin, be it local units of government, sister states or private organizations, absent express legislative authorization.


Municipalities

Municipalities may not incarcerate out of state prisoners. Municipalities do not possess inherent sovereign powers. See Van Gilder v. Madison, 222 Wis. 58, 72-73, 267 N.W. 25 (1936). Municipalities are created by the state, and hold all powers and privileges subject to the state’s sovereign will. See id. (citing City of Trenton v. State of New Jersey, 262 U.S. 182 (1923)). The state may grant powers to municipalities either through its state constitution or by legislation. See id. Limited only by the state constitution, the state may revoke or modify these powers at its pleasure. See id. ("'In the absence of state constitutional provisions safeguarding it to them, municipalities have no inherent right of self-government which is beyond the legislative control of the state.'")

The Wisconsin Constitution grants municipalities broad power over local affairs. See Wis. Const. art. XI, § 3. This “home rule” provision of the constitution reads:

(1) Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village. The method of such determination shall be prescribed by the legislature.

Id.

The Wisconsin Legislature has similarly made a statutory grant of power to municipalities. See Wis. Stat. § 62.11(5); but see Wis. Stat. § 62.03(1) (Wis. Stat. § 62.11(5) “does not apply to 1st class cities under special charter”). The power granted under the “home rule” statute is broader than the power granted under the constitution, by allowing a municipality to enact ordinances on matters of statewide concern. See Wis. Environmental Decade, Inc. v. DNR, 85 Wis. 2d 518, 533, 271 N.W.2d 69 (1978); see also Anchor Savings & Loan Ass’n v. Madison EOC, 120 Wis. 2d 391, 395, 355 N.W.2d 234 (1984) (“A city ordinance may be authorized by sec. 62.11(5), Stats., notwithstanding statewide concern in the matter it regulates.”) However, municipalities’ ability to regulate statewide matters is not unlimited. See DeRosso Landfill Co. v. City of Oak Creek, 200 Wis. 2d 642, 651, 547 N.W.2d 770 (1996). Wisconsin courts have long held that "'municipalities may enact ordinances in the same field and on the same subject covered by state legislation where such ordinances do not conflict with . . . the state legislation.'" Id. (citing Fox v. Racine, 225 Wis. 542, 546, 275 N.W. 513 (1937)). As a result, municipalities may not make regulations that are inconsistent with those of the state. See DeRosso, 200 Wis. 2d at 651; see also Gloudeman v. City of St. Francis, 143 Wis. 2d 780, 789, 422 N.W.2d 864 (Ct. App. 1988) (when provisions of a statute are primarily of statewide concern, municipality may not under Wis. Stat. § 66.01(4) elect not to be bound by such statute).

amjur2Municipalities are pre-empted from regulating matters of statewide concern if any one of the four conditions set out by the Wisconsin Supreme Court in Anchor is met. See Anchor, 120 Wis. 2d at 397. The Anchor test is used whether the ordinance was enacted based on the home rule statute, see Local Union No. 487 v. Eau Claire, 147 Wis. 2d 519, 525, 433 N.W.2d 578 (1989), or based on the home rule amendment, see DeRosso, 200 Wis. 2d at 656–57. The Anchor test provides that the state has pre-empted municipal regulation if: “(1) the legislature has expressly withdrawn the power of municipalities to act; (2) the local regulation logically conflicts with state legislation; (3) the local regulation defeats the purpose of state legislation; or (4) the local regulation violates the spirit of state legislation.” Id. at 657 (citing Anchor, 120 Wis. 2d at 397). It cannot be disputed that one area of statewide concern is the preservation of order. See Van Gilder, 222 Wis. at 76. Included in this is the power to incarcerate. See 60 Am. Jur. 2d Penal and Correctional Institutions § 8 (1987) (“[Penal] institutions are a public necessity and part of the police system for the preservation of order and the security of society. They are established by the state in the exercise of its sovereign powers.”). Therefore, a municipality may only regulate in the field of incarceration if state legislation has not pre-empted such regulation. Applying the Anchor test to the ability of municipalities to incarcerate out of state prisoners, it is apparent that state legislation pre-empts such a possibility. Not just one, but all four of the conditions would be met, precluding municipal regulation in this area.

Addressing the first test, the Legislature has expressly withdrawn the power of municipalities to act in the area of incarcerating out of state prisoners. The state has specifically defined “jail” to include “municipal prisons . . . by whatever name they are known.” Wis. Stat. § 302.30. The state has enumerated specific uses for which such facilities may be employed, which do not include the incarceration of out of state felons. See Wis. Stat. § 302.31. The state has therefore expressly limited the power of municipalities to use their prisons to incarcerate out of state prisoners.

Turning to the second test, local ordinances authorizing the incarceration of out of state felons would logically conflict with state legislation. Wisconsin has enacted the Interstate Corrections Compact, which gives a detailed description of how the state intends to treat incarceration of prisoners from other states. See Wis. Stat. § 302.25. Municipalities could not logically incarcerate out of state prisoners outside this statutory scheme. As to the third and fourth tests, the state legislature has enacted a comprehensive system of laws to regulate incarceration within the state. See Wis. Stat. chs. 301 and 302. Municipal ordinances regarding the statewide concern of incarceration of out of state felons would “defeat[ ] the purpose of state legislation and violate[ ] the spirit of the legislature’s ‘complex and comprehensive statutory structure.’” DeRosso, 200 Wis. 2d at 662 (citing Anchor, 120 Wis. 2d at 397).

Because municipal incarceration of out of state felons would logically conflict with and “violate[] the express letter, the purpose and the spirit of statutes addressing a matter of statewide concern," state legislation has pre-empted municipalities from regulating in this area. DeRosso, 200 Wis. 2d at 664.

Counties

Counties may not incarcerate out of state prisoners. Counties are also creations of the state, with limited powers. In the 1988 opinion, Attorney General Hanaway stated: “It has been repeatedly held in Wisconsin that ‘a county board has only such powers as are expressly conferred upon it [by the legislature] or necessarily implied from the powers expressly given or from the nature of the grant of power.’” 77 Op. Att’y Gen. at 96 (citing State ex rel. Teunas v. Kenosha County, 142 Wis. 2d 498, 504, 418 N.W.2d 833 (1988)).
County powers conferred by the Legislature are addressed in the county “home rule” and “board powers” statutes. See Wis. Stat. §§ 59.03, 59.04 and 59.51. These powers are less expansive than the powers granted to municipalities. As I explained in the 1996 opinion, addressing the privatization of a county house of correction:

[T]he statutory language defining the substantive nature of the power granted [to counties] is modelled [sic] primarily upon language contained in article XI, section 3 of the Wisconsin Constitution rather than upon language contained in section 62.11(5) . . . .

  . . . . 

Unlike section 62.11(5), which contains a grant of substantive power for municipalities to act even in connection with matters primarily of statewide concern, county municipal home rule statues “expand upon and ‘fill the gaps’ in the organizational and administrative structure which is already in place.”

OAG 1-96 at 4-5 (citations omitted). Because the grant to counties is so limited, “if the legislature did not specifically confer a power, it is evidence of legislative intent not to permit the exercise of the power.” Id. at 7 (citing State ex rel. Harris v. Larson, 64 Wis. 2d 521, 527, 219 N.W.2d 335 (1974)). The Legislature has made no express grant of power to counties to house out of state prisoners; therefore counties have no power to do so.

Sister States

Another state cannot lease or buy a correctional facility in Wisconsin and operate it according to its laws. Although states are sovereign within their territory, sovereignty ends at the border. See K-S Pharmacies v. American Home Products, 962 F.2d 728 (7th Cir. 1992) (states lack power to reach outside their borders, giving rise to strong presumption of exclusive domestic application of state statutes); see also World-Wide Volkswagen Corp v. Woodson, 444 U.S. 286, 294 (1980) (sovereignty of each state implies limitation on sovereignty of all its sister states). Even were one state to acquire property in another, it is “elementary law that . . . [the acquiring state] does not thereby project its sovereignty into the state where the property is situated.” State v. City of Hudson, 231 Minn. 127, 42 N.W.2d 546, 548 (1950). It is clear that state sovereignty does not permit one state to house prisoners in another state without that state’s express consent.

Because states have long recognized that they may house their prisoners in another state only by consent of that state, they have devised a contractual method to arrange such housing. The Interstate Corrections Compact is the means by which Wisconsin and other subscribers address the housing of out of state prisoners. See Wis. Stat. § 302.25. The compact is a detailed cooperative agreement whereby participating states may contractually provide for the confinement of prisoners of other states. See id. Providing housing for out of state prisoners is voluntary, and occurs only after entering into a contract. See Wis. Stat. § 302.25(3)(a) (“Each party state may make one or more contracts . . . [with other party states].”). This is the only manner in which Wisconsin expressly provides for the housing of out of state prisoners.

Private Organizations

Because the power to incarcerate belongs exclusively to the state, incarceration may be performed only by those whom the state expressly authorizes. See 81A C.J.S. States § 16 (1977). Consequently, private organizations may not incarcerate any prisoners including out of state prisoners, as the state has made no provision, statutory or constitutional, for such incarceration. Indeed, the state has made no provisions for a private organization to operate an incarceration facility at all, which leads to your fourth question.

    4.   Can a Private company operate an incarceration facility in Wisconsin?

Private companies may not operate an incarceration facility of any sort. As discussed above, incarceration is a sovereign power of the state. See 60 Am. Jur. 2d Penal and Correctional Institutions § 8 (1987). From this it follows that “detention is a power reserved to the government, and is an exclusive prerogative of the state.” Medina v. O’Neill, 589 F. Supp 1028, 1038 (S.D. Tex. 1984), modified on other grounds, 838 F.2d 800 (5th Cir. 1988). Thus, incarceration of prisoners may only be performed by the state or under its express authority. Because Wisconsin has made no express authorization, private companies may not operate an incarceration facility of any sort.

Previous opinions of the Attorney General, concluding that county incarceration functions may not be performed by private companies, form the foundation for the conclusion. In 1988, Attorney General Hanaway addressed the narrower issue of whether the jailer function of a sheriff’s duties under Wis. Stat. § 59.23(1) could legally be “privatized” by contract with a private firm; he concluded that it could not. See 77 Op. Att’y Gen. 94 (1988). In a later opinion, I concluded that neither could a private firm operate a county house of correction. See OAG 1-96. One factor leading to the result in both of these situations is that “the privatization of law and order functions relating to the incarceration of prisoners involves a matter exclusively or primarily of statewide concern.” Id. at 6. As I explained:

This reasoning is applicable to all forms of incarceration for commitment of a crime and is not limited to functions performed under the auspices of the sheriff as a constitutional officer. In my opinion, with respect to matters exclusively or primarily of statewide concern, “if the legislature did not specifically confer a power, it is evidence of legislative intent not to permit the exercise of the power.”

Id. at 7 (citation omitted). While this opinion was limited to the privatization of county incarceration functions, the reasoning is applicable to all forms of incarceration, whether at statewide or local levels. Because incarceration is a sovereign power and incarceration functions involve matters of statewide concern, specific legislation would be needed in order to permit private companies to perform such functions.

I, therefore, conclude that under existing statutes, while a private company could conceivably build an incarceration facility, and sell or lease it to the state, private companies may not operate incarceration facilities in Wisconsin, nor may out of state prisoners be housed within Wisconsin except as provided in the Interstate Corrections Compact.

            Sincerely,


            James E. Doyle
            Attorney General

JED:SJN:jlw

CAPTION:

  While a private company may conceivably build an incarceration facility in Wisconsin, without enabling legislation it cannot be operated by a private company. The purchase or lease of a privately built incarceration facility by the state must be within the state's long range building program as expressed in Wis. Stat. § 13.48. A purchase must also be approved by the Joint Finance Committee. Out of state prisoners may be housed in Wisconsin by the state, a county or a municipality, only as expressly authorized by state statute. Currently that authorization is limited to the Interstate Corrections Compact (Wis. Stat. § 302.25).


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