Fond Du Lac, WI Fluoridation Fought

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SAFE WATER ASSOCIATION, INC., Plaintiff-Appellant, v. CITY OF FOND DU LAC,
Defendant-Respondent.

PRIOR HISTORY: APPEAL from a judgment of the circuit court for Fond du Lac County: PETER L.
GRIMM, Judge.

DISPOSITION: Affirmed.

COUNSEL: On behalf of the plaintiff-appellant, the cause was submitted on the briefs of
Scott C. Matthew,
Law Office of Scott C. Matthew of Fond du Lac.

 

On behalf of the defendant-respondent, the cause was submitted on the brief of
Kristine A. Euclide, Barbara A. Neider, and Kevin S. Thompson,
Stafford, Rosenbaum, Rieser
&
Hansen of Madison.

 

Amicus An
amicus curiae brief was submitted on behalf of the American Dental Association, American
Medical Association, Wisconsin Dental Association, The State Medical Society of
Wisconsin, American Academy of Pediatric Dentistry, American Association of
Dental Research, The International Association of Dental Research, The American
Association of
Public Health Dentistry and The American Public Health Association by
Linda M. Clifford, LaFollette
& Sinykin of Madison and
Peter M. Sfikas
and
Clay H. Phillips of counsel,
Peterson
& Ross of Chicago.

 

An
amicus curiae brief was submitted
 [***2]  on behalf of the League of Wisconsin Municipalities by
Curtis A.
Witynski, legal counsel of Madison.

JUDGES: Before Anderson, P.J., Brown, and Snyder, JJ.

OPINIONBY: BY THE COURT; ANDERSON

OPINION:

 [*369] 

 [**15]  ANDERSON, P.J. Safe Water Association, Inc. appeals from the grant of summary
judgment to the City of Fond du Lac (City). Safe Water’s complaint attempted to
temporarily and permanently enjoin the City from fluoridating water pursuant to
an ordinance passed by the Fond du Lac City Council (council). On
 [*370] 
appeal, Safe Water raises three issues: (1) the stay of discovery until after
resolution of the City’s summary judgment motion constituted prejudicial error,
(2) the ordinance was not a valid exercise of the City’s police powers, and (3)
the ordinance violates the constitutional right to privacy. We hold that
Safe Water waived the discovery issue by filing a competing motion for summary
judgment, the City had a reasonable basis for passing the ordinance under its
police powers, and the case of
Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242 (1955), defeats Safe Water’s right to privacy claim.

In 1950, the council passed an ordinance which authorized the fluoridation
 [***3]  of the City’s water supply. From 1950 to 1970, the City used sodium
fluoride as the fluoridation agent. Since that time, the City has used hydrofluosilicic
acid. Both compounds are approved by the
Wisconsin Department of Natural Resources (DNR) for use in the fluoridation of
drinking water.
See WIS. ADM. CODE
§ NR 811.46. The hydrofluosilicic acid used by the City conforms with standards
established in the DNR regulations.
See
id.

The 1950 ordinance authorized the addition of
fluorine to the water supply. It did not authorize the addition of
hydrofluosilicic acid or sodium
fluoride. Apparently in response to this oversight, the City conducted public hearings
in 1992 on an amendment of the ordinance to allow the addition of
“fluoride” to the water supply
“in a manner prescribed by the Department of Natural Resources.”
See FOND DU LAC, WIS., MUNICIPAL CODE OF ORDINANCES
§ 7.39 (1992).

The council received information both in favor of and opposing the City’s
fluoridation program. The president of Safe Water, Richard Matthew, presented
several articles and studies opposing fluoridation. His
 [*371]  view was that sodium
fluoride and
hydrofluosilicic acid were toxic compounds
 [***4]  which have not been sufficiently tested. Matthew contended that fluoridation
of water needlessly exposed adults and children alike to uncontrolled dosages.
He argued that the general decrease in dental caries in communities with
fluoridated drinking water was due to better oral hygiene, not the addition of
fluoride. Finally, he proposed that if the council would decide that fluoridation should
continue, a better alternative would be to distribute
fluoride tablets. In that way, the citizens could decide on an individual basis whether
they wanted
fluoride and they could control dosages. Dr. Henry Smialek, D.D.S., also appeared
before the council. He cited to his experience as a dentist and additional
articles and studies in his opposition of water fluoridation.

Dr. Warren LeMay, the oral health consultant for the Wisconsin Bureau of Public
Health, Division of Health, appeared before the council in favor of the
program. He presented his opinion, based upon experience and familiarity with
scientific research, that

 [**16]  fluoridation of drinking
water is beneficial to both children and adults. LeMay described a number of
studies, reports and position papers that support fluoridation. He related
 [***5]  that over seventy health organizations and agencies endorse the fluoridation
of drinking water. He also presented the council with information regarding
fluoridation’s health benefits, potential risks, safety,
effectiveness and cost benefits. He recounted the experience of Antigo,
Wisconsin which discontinued fluoridation but reinstated it after dental caries
increased significantly.

The council also heard several other health professionals who supported
fluoridation, including dentists in the Fond du Lac area, the president of the
Fond du
 [*372]  Lac
County Dental Society and the director of the Fond du Lac County Public Health
Nursing Service.

After the hearings, the council voted unanimously to adopt the amended
ordinance for water fluoridation. Safe Water filed suit in the trial court
against the City requesting a permanent
injunction to prevent the City from fluoridating the water supply. The amended
complaint alleged seven
“causes of action”: (1) the ordinance lacked a rational basis, (2) the council did not properly
consider the amended ordinance before adoption, (3) fluoridation of water was
not substantially related to the objective of reducing
dental caries, (4) fluoridation causes
 [***6]  serious injuries to consumers, (5)
fluoride consumption already exceeds the optimum levels sought by the fluoridation
program, (6) there is no substantial basis for concluding that the benefits of
fluoridation outweigh its risks, and (7) fluoridation violates the right of
privacy guaranteed
by the United States Constitution. Both parties moved for summary judgment. The
court granted the City’s motion and Safe Water appeals.

The first issue which Safe Water raises is whether the trial court’s order
prohibiting further discovery pending consideration of the City’s summary
judgment motion constituted
prejudicial error. While discovery was being conducted, the City moved for a
protective order concerning portions of the discovery. In support of its
motion, the City stated that it would be moving for summary judgment and that
the requested discovery was not relevant to the dispositive issue–whether the
City had a rational basis for the
fluoridation ordinance. Safe Water responded by moving to compel discovery. At
the hearing on the motions, the court stated:

 
 [*373] 

The court will grant the proviso protective order
with leave granted to [Safe Water] to seek relief therefrom to answer the

 [***7] 
[City’s] motion for summary judgment.
In essence, the court is going to be
freezing the pleadings as they are now, which means if the court denies the
City’s motion for summary judgment, the court can again address the plaintiff’s
motion for compelling discovery . . And I think this is the way to go, because
under the court’s prior decision and ruling, I feel the City has to come
forward and show the
reasonableness of their action with a rational legislative basis. [Emphasis
added.]

Safe Water argues on appeal that had the City been forced to answer all
admissions, the court
“might well have granted summary judgment to [Safe Water], or at least set the
suit for trial. The City wrongly resisted discovery, and had it been forced to
comply the
summary judgment motions might have been viewed very differently by the court.”

We conclude that Safe Water abandoned this issue when it filed a competing
motion for summary judgment. Safe Water never requested the trial court to
allow discovery to respond to the City’s summary judgment motion, even though
the
trial court specifically allowed for this possibility. An appellate court will
generally not review an issue raised for the first time
 [***8]  on appeal.
Wirth v. Ehly, 93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145 (1980). Safe Water’s
motion for summary judgment carried with it the explicit assertion that Safe
Water is satisfied that the facts are undisputed and that on those facts it is
entitled to judgment as a matter of law.
See
Powalka v. State Mut. Life Assurance Co., 53 Wis.2d 513, 518, 192 N.W.2d 852, 854 (1972). Accordingly, Safe Water cannot complain that it needed additional discovery.

 [*374]  We now turn to the substance of the appeal: whether the trial court properly
granted summary judgment to the City. On

 [**17]  review, we are required to follow the same standard as the trial court.
See
Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). Summary judgment should be granted when no genuine issue of material fact
exists and the movant is entitled to judgment as a matter of law. Section
802.08(2), STATS. The methodology for summary judgment was comprehensively set
forth by the supreme court in
Green Spring Farms, 136 Wis.2d at 314-15, 401 N.W.2d at 820,
 [***9]  and we follow that methodology here.

When deciding a motion for summary judgment, the court relies upon the
pleadings, depositions, answers to interrogatories, admissions on file, and
affidavits of
both parties to determine if there is no genuine issue as to any material
facts.
See

§ 802.08(2), STATS. Safe Water argues that the trial court erred by considering
the affidavit of LeMay. It argues that expert opinions are not properly
considered at summary judgment. We agree–the general rule is that an affidavit
supporting or opposing a motion for summary judgment is usually insufficient if
it sets forth only opinion.
See
Dean Medical Center v. Frye, 149 Wis.2d 727, 732, 439 N.W.2d 633, 635 (Ct. App. 1989). However, in our de novo
review of whether the City’s summary judgment motion should be granted, LeMay’s
affidavit does relate evidentiary facts. It is a summary of the facts and
documents that he provided to the council. This information was considered by
the council before passing the fluoridation ordinance. Therefore, we will look
to this affidavit not for LeMay’s opinion on
 [*375]  the benefits of
fluoride, but as an
indication
 [***10]  of the information available to the council when it passed the ordinance.

The first six
“causes of action” of Safe Water’s complaint can be boiled down to the following allegation: The
City’s adoption of the fluoridation ordinance was an impermissible exercise of
police power which violates due process. The individual
“causes of action” merely list different
arguments to support this allegation.

When the exercise of the police power is challenged on due process grounds, the
test is whether the chosen means are reasonably and rationally related to the
objective of the enactment.
Kahn v. McCormack, 99 Wis.2d 382, 385, 299 N.W.2d 279, 281 (Ct. App. 1980). If the enactment is
reasonably and rationally related to the objective and the objective is a real
and proper one, the exercise of the police power is valid.
Id. Legislative actions are presumed to be constitutional, and those challenging a
statute must prove unconstitutionality beyond a reasonable doubt.
Id. at 386, 299 N.W.2d at 281. Under these
tests, the presumption is not overcome unless the challenger proves that no
reasonable
 [***11]  basis exists for the exercise of the police power.
Id.

It is not disputed that the council’s objective of promoting the public health
and good is a real and proper one. Our focus thus turns to whether the
ordinance is reasonably and rationally related to the objective. The
court may not reweigh the facts found by the legislative body; the court’s
focus is limited to determining whether any of the information available
provides a reasonable basis for the enactment. See
State v. Hermann, 164 Wis.2d 269, 281, 474 N.W.2d
 [*376]  906, 911 (Ct. App. 1991). Safe Water’s arguments do not focus upon all of the information presented to
the council and whether any could support the enactment of the ordinance.
Instead, Safe Water concentrates only upon the materials and testimony which
support its position that hydrofluosilicic acid is a danger to the community.
Clearly, there were testimonials and studies presented at the hearing on
both sides of the issue. Just as clearly, the council acted with the objective
of furthering the health and welfare of the community. The
council properly exercised its power as a legislative body to weigh
 [***12]  the competing information and had a reasonable basis to conclude that
fluoridation of the water would benefit the health of the community.

Safe Water’s final cause of
action alleges that fluoridation of water violates the constitutional right to
privacy. This identical claim was resolved against the challengers in
Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242 (1955). Safe Water argues that in the time since
Froncek was decided,

 [**18]  the landscape of the
right to privacy has been drastically changed by the United States Supreme
Court’s decisions of
Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965), and
Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973).

Although not mentioned explicitly in the Constitution, the United States
Supreme Court has recognized that
“liberty,” protected by the Due Process Clause, is a right of personal privacy, or a
guarantee of certain areas or zones of privacy.
Carey v. Population Servs. Int’l, 431 U.S. 678, 684, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (1977).
 [***13]  The right of personal privacy encompasses the interest in independently making
certain kinds of important decisions.
Id. However, the right of privacy is a narrow
right.
Weber v. City of Cedarburg, 129 Wis.2d 57, 72, 384 N.W.2d 333,
 [*377]  341 (1986). Furthermore, like other constitutional rights, it is not absolute and is
subject to some limitations.
See
Roe, 410 U.S. at 154.

In
Froncek, 269 Wis. at 289, 69 N.W.2d at 250, the court did not expressly address whether the rights alleged were rights of
privacy entitled to protection by the United States Constitution. However, it
did hold that any invasion of these rights was not
“unreasonable.”
Id. Safe Water fails to demonstrate how
Roe and
Griswold would render fluoridation of water any less
reasonable today than it was in 1955, when
Froncek was decided.
Roe
and
Griswold related to a completely different aspect of the right to privacy–the freedom
to make reproductive decisions. We fail to see how their discussions

 [***14]  of impermissible invasions of this aspect have any bearing on the issue before
us today. Thus, we conclude that
Froncek is still good law and
requires summary judgment to be granted on this final cause of action in Safe
Water’s complaint.

By the Court.–Judgment affirmed.

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