Judge tosses Aurora lawsuit against Waukesha County

Milwaukee Journal Sentinel, Mar. 24, 2006

By DAVID DOEGE
ddoege@journalsentinel.com

Waukesha The Waukesha County Board acted within its authority when it blocked Aurora Health Care's bid to construct an $85 million, 88-bed hospital in the Town of Summit, a judge ruled Thursday in dismissing a lawsuit over the board's action.

In outlining his decision, Waukesha County Circuit Judge Mark S. Gempeler said his ruling had nothing to do "with the wisdom and the merits" of the board's decision.

"This is checks and balances in action, but the court's function is a limited one," Gempeler explained in tossing the lawsuit filed by Aurora and the town. "To liken the situation to that of a referee, I just want to make sure the players stay within the bounds of the field and that the field is level."

Gempeler said that a review of the board's decision-making process and state law indicated the board's action was not fundamentally flawed.

"The plaintiff (Aurora and the town) has to demonstrate that this was an arbitrary and capricious action on the part of the County Board," Gempeler said. "I don't believe they have done that."

The lawsuit, filed in May and financed by Aurora, accuses county officials of overstepping their authority and illegally halting Aurora's expansion to protect ProHealth Care of Waukesha from competition. Summit officials, who had unanimously welcomed the hospital project, contended that the county was improperly usurping local control of a real estate development that would generate about 400 jobs.

Gempeler said he recognized that his word would not be the last on the issue and that an appeal was likely.

County Corporation Counsel Thomas P. Farley said he was pleased with the ruling.

"I think that Judge Gempeler decided that it was inappropriate to overrule the legislative decision as long as there was a sufficient basis for that decision," Farley said. "Judge Gempeler's decision was consistent with our position that there was a basis for this decision.

"Hopefully, now we can put this behind us."

Participants on the other side of the suit said they remained convinced that the board action was improper.

I'm kind of surprised and, obviously, very disappointed," Town Chairman Len Susa said upon learning of Gempeler's decision.

"Today's decision was disappointing," Aurora spokesman Jeff Squire said in a prepared statement. "We believe the judge erred both procedurally and substantively, and did not address the important fundamental issues in this case.

"The Town of Summit and Aurora are confident that we will prevail on appeal. Aurora remains fully committed to bringing a 21st century medical center to western Waukesha County."

Squire said the ruling did not move to the forefront another Aurora lawsuit that has been pending in Waukesha County Circuit Court for more than four years.

Aurora sued the City of Oconomowoc in August 2001 after the Common Council rezoned 43 acres in the Pabst Farms development so that a hospital could not be built there. In late March of that year, Aurora had announced plans to build an $85 million, 88-bed hospital at the site.

The lawsuit was put on hold in 2004 after Aurora focused its attention on another hospital site in Pabst Farms, this one in Summit south of I-94, and Oconomowoc city officials pledged to not speak out against Aurora's new plans.

But Aurora said at the time that if its plans in Summit did not succeed, the lawsuit against Oconomowoc could resume.

Past decisions in the case have favored Oconomowoc, but the case remains pending and the judge currently presiding over it has said he would review those rulings and has the authority to reconsider and overturn them if he decides they were inappropriate.

"Both of these cases have been pursued actively," Squire said.

The Summit project received the unanimous endorsement of town supervisors and recommendations from county planners.

After a heated yearlong debate, the County Board voted April 26 to deny a zoning change and other action necessary to let Aurora build its hospital about three miles from ProHealth's Oconomowoc Memorial Hospital. Opponents of the proposal argued that the new hospital would result in duplication of medical services available in the area, leading to higher health care costs.

The lawsuit alleged lobbying by ProHealth, saying the organization engaged in "heavily orchestrated political efforts" and that county officials "agreed to work jointly with ProHealth to defeat the Aurora hospital." The suit names as co-defendants all 21 supervisors who voted against Aurora's proposal, saying those supervisors "unabashedly" considered factors beyond their authority.

In court Thursday, Gempeler said the debate over the issue in the months leading up to the board action was extreme.

"There was a full-fledged legislative battle with all the collateral lobbying," he said.

Gempeler said it would have been inappropriate for him to speculate on individual supervisors' motives, something he said "would border on the occult."

He said that the County Board's concerns on the issue were justifiably broader than town concerns and appropriately included environmental impact, water usage and county health care needs, among others.

"This is a legislative act, and legislative acts are entitled to a presumption of constitutionality," Gempeler said.

"Frankly, I have yet to see a perfect legislative process," Gempeler said. "The law does not demand it, and human nature cannot provide it."