There is only one Wisconsin case at the U.S. Supreme Court this Term. Murr v. Wisconsin (No. 15-214) will be heard on March 20—but the Court should not decide it.

As this blog has previously detailed, the Murr case involves a dispute about how land-use regulations adopted to protect the Lower St. Croix River apply to a riverside property in northwestern Wisconsin. The Wisconsin state courts uniformly turned aside the Murr family’s claims that the regulations as applied by St. Croix County unconstitutionally reduced the value of their land. In January 2016, the U.S. Supreme Court granted the Murrs’ petition to review the case.

There is no shortage of intriguing storylines intertwined in the Murr case. Among them:

  • The dispute is over the balance between private property rights and government regulation, which is always a hot-button issue. Whether the conflict here has constitutional dimensions and how to determine that are both contentious questions. In addition to numerous organizations that have chosen sides, nine states have filed a brief supporting Wisconsin’s position, and nine other states filed in support of the Murrs.
  • The case has dragged on, even by the standards of extensive litigation. St. Croix County denied the Murrs’ request for a zoning variance in 2006. Once the case wended through the courts and the Supreme Court accepted review, it then left the case in limbo, so that it is hearing the case almost a year later than anticipated—all without explanation.
  • The case will be heard by a short-handed, eight-member Supreme Court on the same day that the Senate Judicial Committee will convene hearings on the nomination of Judge Neil Gorsuch to fill the Court’s vacancy. If that’s not enough inside baseball, the Murr argument will also mark the debut of Wisconsin Solicitor General Misha Tseytlin before the Supreme Court.

But one of the most interesting aspects of the case is that there are several reasons that the Supreme Court should not decide the dispute at all. There’s no need to reach the constitutional question, and courts generally avoid making new constitutional law unless doing so is necessary. The Murrs’ case was dismissed in 2013 because it was not filed within the time limits prescribed by Wisconsin law. St. Croix County also argued at that stage that the Murrs had not taken all of the steps required before filing suit.

Either argument, if correct, would dispose of this case without a controversial constitutional ruling. Neither argument was fully explored in the Wisconsin appellate courts. As it has done before, the Supreme Court should send the case back to the state courts for resolution of these antecedent issues and should consider the constitutional question only if necessitated by the lower courts determining that the other issues don’t end the case.

We made this argument in an amicus brief (available here), filed on behalf of three membership organizations that, among them, represent every level of local government in the state of Wisconsin. The brief urges the Court to follow its own precedent, to allow this case to be resolved on the narrowest possible grounds, and to avoid wading into a complex constitutional conflict unless absolutely necessary. In light of the fact that Murr will be decided by a shorthanded Court comprised of Justices who could easily split evenly on the constitutional issues in the case, the option of sending the case back to the Wisconsin courts may be particularly welcome.

Check back with the Stafford Rosenbaum Appellate Practice Blog for coverage of additional developments in Wisconsin v. Murr.

For media inquiries please contact attorney Jeff Mandell at (608) 210-6303 or

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