Seventh Circuit Reaffirms Stringent Standards for Municipal Liability in Civil Rights Actions

Published by Susan Allen, Kurt M. Simatic, Elizabeth C. Stephens on | Permalink

Since the United States Supreme Court’s seminal decision in Monell v. New York Department of Social Services, a municipality can be only found liable for civil rights claims brought under 42 U.S.C § 1983 if a plaintiff can show that a policy or custom of the municipality caused the violation of his or her constitutional rights. In a recent case involving a Wisconsin county jail, the U.S. Court of Appeals for the Seventh Circuit affirmed the rigorous standard articulated by Monell and reaffirmed the limited applicability of “single-incident” violations where liability is found absent an established pattern or practice of the violation. 

Plaintiffs are two female former county jail inmates who both alleged that a male corrections officer committed repeated acts of sexual assault against them and subsequently encouraged them to conceal the assaults from other corrections officers and inmates. County officials were unaware of the assaults until one of the women reported them to investigators in a neighboring county after her release, prompting an internal investigation by the county in which the assaults had allegedly occurred. When county officials confronted the corrections officer with the assault allegations, he immediately resigned and was eventually sentenced to 30 years in prison for the assaults. 

Plaintiffs filed a civil rights lawsuit against both the corrections officer and the county alleging violations under the Fourth and Eighth Amendments of the U.S. Constitution. In support of their claims, plaintiffs asserted that (1) the jail’s sexual assault policies and training were inadequate; (2) county officials tolerated sexually offensive comments by corrections officers; (3) threats of sexual assault against inmates were not taken seriously by county officials; and (4) county officials declined to implement all of the provisions of the federal Prison Rape Eliminate Act (“PREA”). For these reasons, they argued, the county was deliberately indifferent to the risk of sexual assault of inmates by corrections officers and therefore liable for the corrections officer’s acts under Monell as well as under a single-incident liability theory.

The jury found in plaintiffs’ favor on all claims and awarded each plaintiff $2,000,000 in compensatory damages against both defendants, as well as $3,750,000 in punitive damages against the corrections officer.  The county moved for both judgment as a matter of law and a new trial, arguing that plaintiffs’ offer of proof was insufficient bordering on deceptive. The Court denied the county’s request. The county appealed. 

In a 3-1 decision, the Court of Appeals panel reversed, holding that plaintiffs failed to meet its burden of proof on any of the three Monell factors: (1) the existence of an express or implied unconstitutional custom or policy; (2) policymakers’ deliberate indifference to a known or obvious risk; and (3) evidence that the custom or policy caused the constitutional violation. 

First, the Court concluded that plaintiffs failed to produce any evidence at trial to support their argument that the county’s written policies against sexual assault were inadequate at preventing or detecting sexual assault. The Court held that in order to prove liability under this theory, plaintiffs were required to show actual culpability by the county (i.e. adherence to policies that the county knew or should have known failed to prevent sexual assaults against inmates). Having failed to produce any evidence of a history of sexual assaults by corrections officers against inmates or show the county’s decision not to adopt all of provisions of PREA constituted a custom or policy that led to the constitutional violations, the Court disposed of the argument.

Second the Court rejected plaintiffs’ argument that the county’s implicit policies (i.e., custom or practice) condoned and encouraged sexual misconduct.  The Court held that a jail captain’s participation in “tier talk,” a term described as “not necessarily flattering talk,” inappropriate remarks by jail officials over a twelve year period, and the county’s investigation into a single allegation of inappropriate touching of an inmate by a corrections officer were insufficient proof of a “widespread” unconstitutional policy or practice. The Court found that the alleged “tier talk” and other remarks were not necessarily sexually explicit and the inappropriate touching (putting an arm around an inmate’s waist and patting her backside) did not rise to the same degree of the “repeated and coercive sexual abuse” perpetrated by the corrections officer in this case.  Slip op. at 24. 

Third, the Court rejected plaintiffs’ argument that the county failed to adequately train its employees to prevent inmate sexual assault. The Court found that these were little more than conclusory allegations, that there was no widespread pattern of comparable behavior and, most significantly, that the offending corrections officer admitted at trial that his conduct was contrary to all of the training he received, jail policy, and Wisconsin law.

Finally, the Court also rejected plaintiffs’ attempt to shoehorn their failure-to-train claim into a single-incident liability exception to Monell’s “policy or custom” requirement. Although the U.S. Supreme Court has left open the possibility that “in limited circumstances, a local government’s decision not to train certain employees about their legal duty to avoid violating citizens’ rights may rise to the level of an official government policy for purposes of § 1983,” slip op. at 36 (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)), the circumstances that would give rise to the exception is exceedingly narrow and requires that policymakers are negligently unaware of their obligation to safeguard citizens’ constitutional rights. The Court found that was not the case here. The county had implemented official policies prohibiting corrections officers from having any sexual contact with inmates and regularly conducted state-certified training to corrections officers to protect inmates from sexual assault.  

Judge Scudder dissented from the panel opinion. He, too, recognized the “demanding standard for municipal liability,” slip op. at 50 (Scudder, J., dissenting in part), but concluded that in light of all of the evidence at trial, a reasonable jury could have found that the county acted with deliberate indifference to the need for more training for and monitoring of jail staff. The dissent seems to raise broader concerns that the majority’s forceful rejection of the sufficiency of the evidence presented at trial may act as a disincentive for municipal entities to take more aggressive measures to prevent sexual abuse of inmates housed in their jails.

Importantly, both the majority and dissenting opinions affirmed that the high evidentiary threshold plaintiffs must meet to prove municipal liability remains intact. 

On July 24, 2019, plaintiffs filed a motion petitioning the court for rehearing and rehearing en banc. In support of their motion, plaintiffs argue for a lower evidentiary standard in Monell claims and challenge the sufficiency of the county’s official policies and training designed to prevent inmate sexual assault. This case is generating substantial interest among high-profile civil rights organizations. On the same day plaintiffs filed their motion for rehearing, the ACLU and other prisoners’ rights organizations filed a brief amici curiae in support of plaintiffs’ position.

In light of the substantial and growing interest of civil rights organizations in this case and others like it, municipalities should take special note of one key aspect implicit in the majority’s holding: Although the Monell standard remains a rigorous one, a municipality may be required to have affirmative policies in place to avoid liability. This is evident in the majority’s rejection of plaintiffs’ argument that the county was deliberately indifferent to the sexual abuse of inmates based in large part on the county’s adoption and implementation of state-approved policies and training as well officials’ reasonable responses to prior allegations of sexual misconduct.

Municipalities may thus be well-advised to review their policies and practices in light of this decision and, where deficient, modify them. For assistance with conducting a compliance review and update of sexual assault policies, contact Kurt Simatic or Liz Stephens at (608) 256-0226.

Noncompliance with Notice-of-Claim Statute Is Affirmative Defense, Must Be Pleaded

Published by Kyle P. Olsen, Jeffrey A. Mandell on | Permalink

Wis. Stat. § 893.80(1d) requires a potential claimant to provide notice, including “an itemized statement of the relief sought,” to a government entity within 120 days of the event giving rise to a potential suit. In Maple Grove Country Club Inc. v. Maple Grove Estates Sanitary District, 2019 WI 43, the Wisconsin Supreme Court recently held that a government entity waives a defense of noncompliance with this statute if it fails to affirmatively raise the issue in a responsive pleading.

This matter began in 1990, when a country club constructed a sewer treatment plant to serve the club and a nearby subdivision. In 1998, the local sanitary district adopted an ordinance that required the district to lease or purchase the plant from the club. In 1999, the club and the district agreed to a five-year lease, which was renewed for another five years in 2004. In 2009, the parties did not renew the lease, but the district continued to occupy and use the facility.

In July 2011, the club filed a notice of claim with the district, but without itemizing damages as required by Wis. Stat. § 893.80(1d). The club filed suit in 2014. The district raised six affirmative defenses in its answer, but none mentioned the insufficiency of the notice under section 893.80(1d).

Both sides moved for summary judgment. Only then did the district allege, for the first time, that the club failed to comply with the notice-of-claim statute. The club responded that, because noncompliance was an affirmative defense, the sanitary district waived the issue by failing to raise it in its answer. The district insisted that noncompliance was not an affirmative defense, but a jurisdictional prerequisite that could not be waived and was available to be raised at any point during litigation.

The circuit court dismissed the club’s case on the basis of the “untimely and incomplete” notice of claim. The court of appeals affirmed, relying upon Lentz v. Young, 195 Wis. 2d 457, 536 N.W.2d 451 (Ct. App. 1995). In so doing, however, the court of appeals expressed reservations about Lentz, especially its claim that “a defendant may raise an affirmative defense by motion.” Those reservations proved well-founded.

Last month, the Wisconsin Supreme Court reversed in a 6-0 decision.

First, the court found that noncompliance with Wis. Stat. § 893.80(1d) is an affirmative defense, not a jurisdictional defect. While Mannino v. Davenport, 99 Wis. 2d 602, 29 N.W.2d 823 (1981), deemed noncompliance with Wis. Stat. § 893.82(3) jurisdictional, the Supreme Court distinguished the two statutory provisions. Section 893.82(3) requires strict compliance, whereas 893.80(1d) includes a carve-out for when the government has actual notice and suffered no prejudice from a defective claim document. The Court bolstered its conclusion with cases describing compliance with Wis. Stat. § 893.80(1d) as a condition for governmental liability (not for stating a cause of action), and characterizing noncompliance as a defense. See Rabe v. Outagamie Cty., 72 Wis. 2d 492, 241 N.W.2d 428 (1976); Weiss v. City of Milwaukee, 79 Wis. 2d 213, 255 N.W.2d 496 (1977).

Second, the Court determined that an affirmative defense based on section 893.80(1d) must be raised in a responsive pleading, not in a separate motion. The plain language of Wis. Stat. § 802.02(3) requires all affirmative defenses to be raised in a responsive pleading. By comparison to section 802.06(2)(a), which contains an exhaustive list of ten defenses (not including noncompliance with the notice of claim statute) that can be raised by motion, the Court reasoned that the government must raise noncompliance in a responsive pleading, rather than a motion. In light of its conclusion, the Court also overruled Lentz.

Moving forward, government entities must consider all possible affirmative defenses upon receipt of a notice of claim. Especially if Wis. Stat. § 893.80(1d) applies, the “kitchen-sink” defense may be the safest option.

State Can Raise New Argument in Civil Forfeiture Action, Even After Dismissing Criminal Charges

Published by Kyle P. Olsen, Susan Allen on | Permalink

Some civil and criminal cases rely on indistinguishable facts. However, a recent Wisconsin Court of Appeals decision – Wisconsin v. Scott, et. al., 2017AP1345 – demonstrated that the parties need not make indistinguishable arguments in each case.

In 2016, police seized drugs, money and vehicles pursuant to a search warrant for the Scotts’ property. However, it was determined that there was not sufficient probable cause to support the search warrant. The evidence from the search was therefore suppressed, and the State voluntarily dismissed the criminal charges against the Scotts.

Despite dismissal of the criminal charges, the State proceeded with the civil forfeiture action, seeking retention of the seized cash and vehicles. See Wis. Stat. § 961.55. The Scotts moved for summary judgment, arguing that, under One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965), the exclusionary rule extends to this civil forfeiture action because it is of a “quasi-criminal nature”. The State argued that Plymouth Sedan should not apply to this action.

The State also sought an evidentiary hearing on an argument not made in the criminal case: whether the good-faith exception to the exclusionary rule would permit introduction of the cash and vehicles. The State relied on State v. Eason, where the supreme court found that the exclusionary rule might not apply when police objectively and reasonably rely on a search warrant, because then the rule would not fulfill its purpose (deterring unreasonable police actions). 2001 WI 98, ¶ 27, 245 Wis. 2d 206, 629 N.W.2d 625. The Scotts did not rebut the merits of the good-faith exception, but instead argued the State should be foreclosed from making this argument in the civil proceeding because it had not been raised in the criminal case.

The Circuit Court granted summary judgment to the Scotts. It agreed that, with the search evidence suppressed under Plymouth Sedan, the State could not prove criminal conduct, and the civil forfeiture action could not proceed.

The Wisconsin Court of Appeals, District IV reversed. It agreed that Plymouth Sedan applied, so the exclusionary rule would typically end this sort of civil forfeiture action based on a lack of proof of criminal conduct. However, the court held that the State should have been allowed to contest the applicability of Plymouth Sedan with the good-faith exception argument. The Court of Appeals asserted that the State deserved this opportunity even if it had not argued for the exception at the accompanying criminal proceedings.

The Court of Appeals reached this decision for two reasons. First, the Scotts did not argue against the good-faith exception on appeal; instead, they simply repeated that the State had not raised this argument in the criminal cases. The Court of Appeals considered this a concession by the Scotts that the State should have the opportunity to make this argument. Further, the Circuit Court had not addressed either the applicability or merit of this argument, so the Court of Appeals lacked the evidence to determine either. As a result, the Court of Appeals remanded for further proceedings on the good-faith exception.

The State still may not end up with the cash and vehicles. But this case is an important reminder that – absent issue or claim preclusion – parties can be strategic about which claims to pursue, and arguments to make, in civil versus criminal cases.

Top 10 Municipal Law Developments of 2017

Published by Matthew Dregne on | Permalink

Stafford Rosenbaum’s Government Law and Government Relations teams continuously stay apprised of the latest developments in Wisconsin municipal law. Below, in no particular order, are the top 10 municipal law developments of 2017.

  1. 2017 Wisconsin Act 67 made broad changes to conditional use permits and preemption of clauses that merge substandard lots. For more information regarding this Act and its implications, read our blog post here. Additionally, the Act was partially a response to the U.S. Supreme Court’s decision in Murr v. Wisconsin, which we covered extensively with blog posts and a series of videos.

  2. In McKee Family I, LLC v. City of Fitchburg, 2017 WI 34, 374 Wis. 2d 487, 893 N.W.2d 12, the Supreme Court affirmed the bright-line limitations on the building permit exception to the general prohibition on vested rights in land use. McKee reaffirmed the common-law principle that a property owner cannot claim vested rights absent submission of an application for a building permit that conforms to the zoning or building code requirements in effect at the time of application. We posted about this decision in May.  After the McKee case was filed but years before it was decided, the legislature engrafted a vested-rights provision onto Wis. Stat. § 66.10015. Under that provision, local governments are prohibited from applying new changes or conditions to permit-approval processes after a property owner has submitted an application for a development-related permit. We do not yet know how courts will interpret the new statute and how much it will change established common-law principles.

  3. In Benson v. City of Madison, 2017 WI 65, 376 Wis. 2d 35, 897 N.W.2d 16, the Supreme Court held that the Wisconsin Fair Dealership Law applies to municipalities. Though the WFDL is the subject of extensive litigation, this was an unexpected resolution. We posted about this decision in June, addressing both its municipal aspects and its business aspects.

  4. In Melchert v. Pro Elec. Contractors, 2017 WI 30, 374 Wis. 2d 439, 892 N.W.2d 710, the Supreme Court held that a private contractor was entitled to governmental immunity for damage done while carrying out the government’s specifications. The private contractor severed a sewer lateral line while working on a government construction project. Neighboring property owners then sued to recover damages from the resulting flood. The Court held the contractor immune because its work complied with the Wisconsin Department of Transportation’s reasonably precise specifications for the project.

  5. In Wilmet v. Liberty Mut. Ins. Co., 2017 WI App 16, 374 Wis. 2d 413, 893 N.W.2d 251, the Court of Appeals held the supervision of a child engaged in recreational activity falls within the immunity granted for recreational activities by Wis. Stat. § 895.52. We posted about this decision in March.

  6. In City of Oshkosh v. Kubiak, 2017 WI App 20, 374 Wis. 2d 337, 893 N.W.2d 271, the Court of Appeals held that the use of the term “organizer” in a municipal special events permitting ordinance was not unconstitutionally vague. The ordinance required that the “organizer” of an event apply for a permit and pay the City’s costs. The ordinance did not define the term “organizer.” After a college pub crawl proceeded without a permit, the City sued the students who planned the event. The court held that the ordinance was not unconstitutionally vague because it did not invite guesswork in application and enforcement.

  7. In Wisconsin Carry Inc. v. City of Madison, 2017 WI 19, 373 Wis. 2d 348, 891 N.W.2d 803, the Supreme Court held that Wisconsin’s concealed-carry statute preempts the City of Madison’s rule restricting a licensee’s right to carry concealed weapons on City’s buses so long as the licensee complies with the statute’s requirements. The concealed-carry statute states that no political subdivision may adopt an ordinance or resolution that regulates the possession, bearing, or transportation of any firearm in a manner more stringent than state law. The Court held that the concealed-carry statute applies to all legislative activity by local governments, including Madison’s rule against guns on public buses.

  8. In Voces De La Frontera Inc. v. Clarke, 2017 WI 16, 373 Wis. 2d 348, 891 N.W.2d 803, the Supreme Court held that I-247 immigration detainer forms issued by U.S. Immigration and Customs Enforcement (ICE) are exempt from disclosure under Wisconsin’s public records law. Wisconsin public records law prevents disclosure of any record that is exempted by federal law. The Court found that certain federal regulations prohibited the disclosure of the forms.

  9. In Bank of America Corp. v. City of Miami, Fla., ocal governments have standing to sue banks under the Fair Housing Act for economic harm caused to them by discriminatory lending practices, but in order to prove causation, local governments must show “some direct relation between the injury asserted and the injurious conduct alleged.” We posted about this decision in May.

  10. In AllEnergy Corp. v. Trempealeau Cty. Env’t & Land Use Comm., 2017 WI 52, 375 Wis. 2d 329, 895 N.W.2d 368, the Supreme Court held that: 1) a county committee did not exceed its jurisdiction when acting on a conditional use permit application by considering public health, safety and general welfare matters; 2) public testimony and opinion provided substantial evidence for a conditional use permit application denial; and 3) a conditional use permit applicant is not entitled to the permit whenever it meets the specific conditions set forth in the ordinance and any additional conditions imposed by the permitting authority. AllEnergy applied for a conditional use permit for a 265-acre silica sand mine shortly before the County imposed a temporary moratorium on new non-metallic mining activities. The County denied the permit, and AllEnergy filed suit.

Court of Appeals Expands Municipal Protection Conferred by Wisconsin’s Recreational Immunity Statute

Published by Laura E. Callan on | Permalink

Wisconsin’s recreational immunity statute, Wis. Stat. § 895.52, provides municipalities with broad immunity from liability for injuries to any person engaged in recreational activities on municipal property. The statute sets forth a three-part definition of recreational activity. The first part of the section defines recreational activity as “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity.” The second part of the statutory definition of recreational activity lists 29 specific activities denominated as recreational. The third part of the statutory definition broadly adds “and any other outdoor sport, game or educational activity.”

Wisconsin courts have wrestled with applying the recreational immunity statute to varied fact situations since its enactment. The line between recreational and non-recreational activities can be difficult to draw under Wis. Stat. § 895.52, and the issue has been litigated with some frequency, most recently in Wilmet v. Liberty Mutual Ins. Co., 2015AP2259 (Wis. Ct. App. Feb. 28, 2017). The case is of particular importance to municipalities, because the court construed the statute to broaden municipal recreational-related immunity.  

Mrs. Wilmet was at a city-owned and operated swimming pool to drop off her grandchildren. After dropping them off, she remained outside the premises, supervising her grandchildren from behind the fenced perimeter of the pool as they swam. Mrs. Wilmet’s grandson shouted to her that he was going to jump off the high dive. When Mrs. Wilmet observed there were no lifeguards in the area, she became concerned about her grandson’s safety and told her grandson to wait. She then entered the pool premises without paying the entry fee (but with the attendant’s permission), and went immediately from the entrance through the locker room and toward the high dive. Mrs. Wilmet did not plan to swim at the pool or stay on the premises following her grandson’s dive. As she walked toward the high dive, she tripped on a cement doorstop and was injured.

The Wilmets sued the municipality and its insurer. The city invoked the recreational immunity statute as an affirmative defense and sought the action’s dismissal on that basis.  The city argued that Mrs. Wilmet’s activity of supervising her grandson, who was himself engaged in a recreational activity, was sufficient to bring the Wilmets’ claims within the ambit of the recreational immunity statute.  The court of appeals agreed, basing its holding on principles of statutory interpretation and previously developed tests under which courts consider, among other factors, whether the activity in question was undertaken in circumstances substantially similar to the circumstances of recreational activities set forth in the statute.

The court reasoned that supervising other persons, who are themselves engaged in recreational activities, involves actively overseeing or directing the performance of the recreational activity of another. Thus, the court concluded, “supervision” was akin to, and subsumed within, “practice” and “instruction” in a recreational activity, which the legislature specifically identified as giving rise to immunity. In addition, the court found that conferring recreational immunity for supervision is consistent with the legislature’s purpose in enacting the recreational immunity statute. Because it was undisputed that Mrs. Wilmet was supervising her grandson’s recreational activity on the city’s pool grounds at the time of her injury, the city was entitled to immunity under § 895.52 from her claims.

For more information about statutory exceptions to recreational immunity and case law interpretations of the recreational immunity statute that might expose a municipality to potential liability, contact any member of Stafford Rosenbaum LLP Government Team.

Plain Language in Oshkosh Special Events Ordinance Prevails

Published by Susan Allen on | Permalink

Many municipal ordinances do not define each term in each section. Instead, municipalities may rely on a common meaning to define an ordinance term. The Wisconsin Court of Appeals in City of Oshkosh v. Kubiak, 2016AP804 (Wis. Ct. App. Feb. 15, 2017) (unpublished opinion) (recommended for publication), affirmed this fact. In Kubiak, the Wisconsin Court of Appeals reversed a circuit court ruling that the meaning of “organizer” in the City’s special events ordinance was unconstitutionally vague.

For many years, college students in the Oshkosh area have participated in the semi-annual (April and October) Oshkosh Pub Crawl where students walk downtown Oshkosh and patronize the local taverns. On January 1, 2011, the City of Oshkosh enacted a special events ordinance. The ordinance required an event organizer to obtain a permit before holding a special event. The ordinance also required the applicant to reimburse the City for any costs incurred by the City for providing extraordinary services for the event. For the semi-annual pub crawls in 2011, 2012, and 2013, the defendant, Joseph Kubiak, through Oshkosh Pub Crawl, LLC, applied for a permit and made the required payments for extraordinary services in accordance with the ordinance. However, in April and October 2014, Kubiak did not get a permit for the Pub Crawl.

The City filed suit in circuit court against Kubiak for failing to apply for a permit. The City argued that Kubiak was the organizer of the event under the ordinance. Kubiak disagreed. The circuit court dismissed the lawsuit, ruling that the meaning of “organizer” was unconstitutionally vague.

The court of appeals reversed, holding that the term “organizer” in the ordinance was not unconstitutionally vague. The court held that “people of ordinary intelligence can read and sufficiently understand the requirements of the [o]rdinance.” Id. ¶ 14. The court pointed to the standard definition of organizer for guidance and stated that “an organizer must have some direct effect on arranging the event.” Id. The court concluded that the ordinance restricts its applicability to those who take an active role in the special event, not merely those who encourage others to attend. Thus, the court remanded this action to the circuit court to determine whether Kubiak was an organizer under the ordinance and, if so, whether he violated that ordinance.

This case reinforces the idea that when drafting an ordinance a municipality need not define every term, or even most terms. The municipality should be aware that if ordinance terms are not defined, courts may interpret terms according to the term’s ordinary meaning often found in a recognized dictionary.

Wisconsin’s Property Tax Assessment Statutes Challenge to be Decided by the Wisconsin Supreme Court

Published by Jeffrey A. Mandell on | Permalink

The Wisconsin Supreme Court will soon decide whether Wisconsin’s law on property tax assessment is constitutional. The Court heard oral arguments for Milewski v. Town of Dover, No. 2015AP152, 2016 WL 1761988 (Wis. Ct. App. May 4, 2016) (unpublished opinion) last month, and the Wisconsin Realtors Association, the Institute for Justice, and the Wisconsin Department of Justice filed amicus briefs in support of the plaintiffs. The Milewski case could significantly change how municipalities appraise home values for purposes of assessing property taxes.

The Town of Dover hired Gardiner Appraisal Service, LLC to perform a new assessment of all real property in the town for the 2013 tax year. The plaintiffs, Vincent Milewski and Morganne MacDonald, are homeowners in the Town of Dover. They received a notice stating that an assessor—a Gardiner representative—would be stopping by to view the interior of their home. The plaintiffs denied the assessor entry into their home. Gardiner sent another letter to the plaintiffs, stating that their property needed to be assessed. The second letter explained that, Wis. Stat. § 70.32(1), requires an assessor to value property based upon “actual view or from the best information that the assessor can practicably obtain,” and that Wis. Stat. § 70.47(7)(aa) prohibits homeowners from contesting their assessments if they refused “a reasonable written request…to view [their] property.”

When the plaintiffs did not provide the assessor access to the interior of their home, Gardiner assessed the value of the property at $307,100. This assessment was a 12.12% increase in the value from the previous assessment. Milewski, slip op., ¶5. Gardiner explained that it reached this figure by taking into account several factors including: (1) the possibility that the plaintiffs remodeled over the past nine years (although this had not been verified); (2) its inability to evaluate if the effective age of the home increased or decreased; and (3) the fact that assessed values of many area homes had increased that year. Id. Citing Wis. Stat. § 70.47(7)(aa), the board of review rejected the plaintiffs’ request to review the assessment because the board found the plaintiffs had refused a reasonable request to view the property. Id.

Having struck out with the board of review, the plaintiffs filed a complaint in circuit court, arguing that the Wisconsin statutes for property tax assessment and appeals were unconstitutional and that Gardiner had over-assessed their property. The circuit court granted the Town’s and Gardiner’s motions for summary judgment, dismissing the claims against them. The Wisconsin Court of Appeals affirmed that ruling.

The plaintiffs argued on appeal that the Fourth Amendment, which guarantees a right to privacy, protects them from compelled interior inspections. Id. ¶13. For support, the plaintiffs relied on Camara v. Municipal Court, 387 U.S. 523 (1967), which held that a housing inspector needed a warrant to enter the plaintiff’s apartment to conduct routine annual inspections. Id. The Court of Appeals distinguished Camara because no civil or criminal penalties resulted from the plaintiffs’ decision to deny the tax assessor entry. Id. ¶14. The Court of Appeals likened this case to Wyman v. James, 400 U.S. 309, 317-18 (1971), where the Supreme Court held that social worker visits conducted pursuant to New York’s welfare program were not Fourth Amendment searches because the visitation was not forced and the beneficiary’s denial to enter the home was not a criminal act. Here, the Court of Appeals reasoned that the plaintiffs were not being forced to allow Gardiner entry and they could refuse.

The plaintiffs also argued, to no avail, that Gardiner retaliated against them with a higher-than-reasonable assessment because they had not allowed an assessor to view their home’s interior. Milewski, slip op., ¶22. The Court of Appeals said the plaintiffs failed to show that Gardiner intentionally assessed their property for greater than true value. In addition, the Court of Appeals held that Gardiner followed the law in appraising the property, rejecting the plaintiffs’ argument that Gardiner had ignored the statutory requirement to base appraisals on the “best information.” Id., ¶24. Therefore, the Court of Appeals dismissed all of plaintiffs’ claims.

The Wisconsin Supreme Court must now decide whether Wisconsin’s property tax assessment laws invade the right to privacy guaranteed by the Fourth Amendment. If the Fourth Amendment is implicated, the Court must decide whether it is reasonable for the property tax assessment laws to mandate warrantless searches. If the Supreme Court reverses the lower courts, Wisconsin homeowners might be able to freely deny interior property appraisals without forfeiting the ability to contest the resulting assessment to the board of review. This could complicate municipal efforts to assess properties for taxation purposes.

Wisconsin Supreme Court: Blood Draw by EMT in County Jail for OWI Test

Published by Susan Allen on | Permalink

Under Wisconsin law, blood can be drawn from a person arrested for operating a vehicle while intoxicated “OWI”) to determine the presence or quantity of alcohol in the person’s body. However, only a physician, registered nurse, medical technologist, physician assistant, phlebotomist, or other medical professional who is authorized to draw blood, or person acting under the direction of a physician may withdraw the blood. The Wisconsin Supreme Court, in Wisconsin v. Kozel, 2017 WI 3, ___ Wis. 2d ___, ___ N.W.2d ___, recently concluded that an EMT who drew an alleged drunk driver’s blood was a “person acting under the direction of a physician” under Wis. Stat. § 343.305(5)(b), and therefore fell within the category of individuals authorized to draw blood.  As a result, the Court concluded that the suspect’s blood was drawn in a constitutionally reasonable manner.

In August 2013, a Sauk County Deputy Sheriff arrested Patrick Kozel for allegedly driving while intoxicated. At the Sauk County jail, Kozel consented to have his blood drawn. An EMT employed by Baraboo District Ambulance Service conducted the blood draw. Testing by the Medical Toxicology Section of the Wisconsin State Laboratory of Hygiene showed a blood ethanol level of 0.196 g/100 mL, in excess of the legal limit of 0.08 g/100 mL. See Wis. Stat. § 340.01(46m). In October 2013, the Sauk County District Attorney’s office charged Kozel with one count of operating a motor vehicle while intoxicated, second offense, and one count of operating with a prohibited alcohol concentration, second offense.

Subsequently, Kozel filed a motion to suppress the results of his blood test. Kozel argued that: (1) his blood was not taken by a person statutorily authorized to do so, namely a “person acting under the direction of a physician,” Wis. Stat. § 343.305(5)(b); and (2) his blood was taken in a constitutionally unreasonable manner, see U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”). Kozel, 2017 WI 3, ¶ 10. The State introduced the following evidence during the motion hearing:

  • As of August of 2013, the EMT was both licensed and certified by the State of Wisconsin to “perform legal blood draws.”

  • The EMT had been performing legal blood draws since June of 2009 under the supervision of a physician licensed in the State of Wisconsin who is the “medical director” of the Ambulance Service.

  • As the medical director, the doctor “signs off on not only [EMT] licenses, which allow [the EMTs] to practice medicine, but also any of the additional training and/or procedures that require approval.”

Id. ¶ 14.

Based on these facts, the circuit court denied Kozel’s motion to suppress the blood draw result. Kozel appealed. The court of appeals reversed, remanding the case to the circuit court to suppress the evidence obtained from Kozel’s blood. The court of appeals concluded that “the evidence was insufficient to establish that the EMT [who drew Kozel’s blood] was operating under the direction of a physician.” Id. ¶ 28. Given that conclusion, the court of appeals found it unnecessary to analyze whether the blood draw was constitutionally reasonable. The State appealed.

The supreme court reversed. First, the court concluded that the State’s evidence demonstrated that the EMT was acting under the direction of a physician because the doctor was in charge of the blood-drawing activities conducted by the EMT. See id. ¶ 39. The court rejected Kozel’s argument that the statute requires a specific type or degree of direction. Second, the court held that the blood draw in this case was constitutionally reasonable. Under the Fourth Amendment, the taking of a blood sample is a search, and therefore it must be reasonable. The court found that the evidence demonstrated the EMT was thoroughly trained and experienced in properly drawing blood, it was not unreasonable for the blood draw to occur in the non-medical setting of the jail, and Kozel failed to demonstrate that he had objected to the particular circumstances of the blood draw. See id. ¶¶ 44-47.

Justice Ann Walsh Bradley, joined by Justice Shirley Abrahamson, dissented. They concluded that there was insufficient evidence to support a finding that the EMT who drew Kozel’s blood was a “person acting under the direction of a physician” as required by Wis. Stat. § 343.305(5)(b), and that Kozel’s blood draw was not constitutionally reasonable based upon the facts of record.  See id. ¶ 55 (Bradley, J., dissenting). The dissent also argued the fact that the EMT was authorized to act under a physician’s license was not evidence of acting under the physician’s direction for purposes of the statute. The dissent made a distinction between “directed” and “authorized,” and concluded that there was insufficient evidence to establish the EMT was working under the direction of a physician. See id. ¶ 72 (Bradley, J., dissenting). The dissent also concluded the record was silent as to the existence of written protocols detailing how to conduct a blood draw. This appears to be the critical distinction between Kozel’s case and existing precedent. Based on the record deficiencies, the dissent concluded that there was insufficient evidence to support the majority’s conclusion that the EMT was acting “under the direction of a physician” as required by the statute. See id. ¶ 87 (Bradley, J., dissenting).

The dissent also analyzed the constitutional reasonableness of the blood draw. The dissent concluded it was unreasonable because there was no evidence of any written protocols or procedures in the record. Specifically, the supervising physician did not train the EMT, never witnessed the EMT perform a blood draw, and never approved the EMT’s blood-draw techniques. See id. ¶ 98 (Bradley, J., dissenting). The record also failed to establish evidence of safety and accuracy as required by cases that concluded the blood draw was constitutionally reasonable.

This case presents interesting questions regarding the location and staffing of blood draws.  Further, this case affirmed the blood-draw procedures employed by many Wisconsin jails. This case also provides a framework for how lower courts will likely analyze the constitutional implications of future blood draws, should they be challenged under the Fourth Amendment. Contact your Stafford Rosenbaum LLP criminal defense or municipal law attorney should you have any further questions.

Wisconsin Supreme Court to Determine Scope of Open Meetings Law in School District Dispute

Published by Jeffrey A. Mandell on | Permalink

In July 2011, as John Krueger’s son prepared to enter ninth grade in the Appleton Area School District, Krueger became concerned about the curriculum for the ninth-grade Communication Arts course. He requested the District offer an alternative curriculum for that course. The Superintendent asked members of the District’s Assessment, Curriculum, and Instruction Department to address Krueger’s concerns. Department staff, on their own initiative, decided to conduct a full review of the existing course materials and formed the Communication Arts 1 Review Committee for that purpose.

The Committee—comprised of seventeen district administrators, teachers, and staff—read approximately 93 fiction books, assessed their suitability to meet various curricular needs, and forwarded a recommended list of 23 books to the Appleton Area School District Board of Education. In the course of assessing the books it considered and developing its list of recommended texts, the Committee held nine meetings between October 2011 and March 2012. Each of those meetings was held without notice to the public and was closed to the public. When Krueger asked to attend the meetings, he was told that the meetings were not open to the public.

On Krueger’s behalf, the Wisconsin Institute for Law and Liberty then filed suit, alleging the School Board violated Wisconsin’s Open Meetings Law, Wis. Stat. § 19.83(1), by failing to give notice of and excluding the public from the Committee’s meetings. The circuit court granted summary judgment to the District. It reasoned that, because the Committee was not created by a directive of the School Board, the Committee was not a “governmental body” within the scope of the Open Meetings Law. Under the statute, such a body is “a state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order.” Wis. Stat. § 19.82(1).

Krueger appealed. In an unpublished opinion, the Wisconsin Court of Appeals affirmed the circuit court’s decision. See State ex rel. Krueger v. Appleton Area Sch. Dist. Bd. of Educ., No. 2015AP231, 2016 WL 3510300 (Wis. Ct. App. June 28, 2016). Krueger was unable to direct the appellate court to any rule or order under which the District created the Committee.  Id. at *4 (¶ 18). The court found that there was no established District procedure for requesting an alternative course or responding to such a request. Id. at *5 (¶ 20).  As a result, when the members of the District’s Assessment, Curriculum, and Instruction Department addressed Krueger’s concerns, they did so by creating the Committee “[o]n their own initiative.”  Id. (¶ 21).  These facts, the court held, do not constitute the creation of a committee by “rule or order” under Open Meetings Law; thus, the Committee was not subject to the Law. Id.

On July 27, 2016, Krueger asked the Wisconsin Supreme Court to review the case. The court granted his petition last month. The parties are currently briefing the issues, and the supreme court will likely hear oral argument early next year.  The decision in this case could have a significant impact on what kinds of governmental bodies are required to conduct meetings in open session. Continue to watch Stafford’s blogs for updates on this case.

Governor Walker Signs Riparian Rights and Wetlands Bill into Law

Published by Paul Kent on | Permalink

On April 26, 2016, Governor Scott Walker signed Senate Bill 459 into law.  Now known as 2015 Act 387 (the “Act”), the proposal will clarify riparian landowners’ rights in a number of areas, including boathouse maintenance and repair, boat shelter construction, seawall installation and replacement, wetland applications, and sensitive area designations.  

The questions surrounding these regulatory issues have reached a fever pitch over the last decade and have been at the heart of a numerous of lawsuits.  Central to these disputes is the proper balance between property rights and regulation of water and wetlands. This bill was designed to clarify a number of these issues. 

First, the bill clarifies the areas of special natural resource (“ANSRI”) designation. The ANSRI designation was adopted in 2003 as part of a legislative compromise in which a very limited number of activities -- such as the placement of seasonal piers and repair of shoreline erosion control – were exempted from the DNR’s permitting process.  However, these exemptions did not apply in certain pristine or high-quality waterways, and in waterways deemed to be of significant “scientific value.”  This designation was intended to be narrowly applied to a finite, pre-identified group of waterways.  Instead, the DNR adopted a rule making the ANSRI designation applicable to thousands of waterways statewide, essentially nullifying the agreed-upon permit exemptions. The bill now provides specific lists of waters tied to the DNR’s surface water data viewer. 

Second, while the construction of new boathouses has been prohibited since 1979, over the last several years, the DNR has taken an increasingly rigid view of the legality of pre-1979 boathouses. Recently, the DNR began maintaining that pre-1979 boathouses not exclusively used for navigational purposes are illegal.  This potentially affected thousands of boathouses that have been partially or entirely converted into vacation homes or other uses.  The bill now clarifies that pre-1979 boathouses can continue to be maintained for any use provided there was at least some history of use as a boathouse.

Third, the DNR took an expansive view of its authority under Wis. Stat. § 281.36 to assert oversight over projects impacting wetlands.  The DNR interpreted its authority to review and impose conditions under its “practicable alternatives” analysis to include the ability to require a permit applicant to acquire additional sites to avoid the wetland impacts of a proposed development.  The bill clarifies that for residential, agricultural and small business projects less than 2 acres, the assessment practicable alternatives can be limited to those located on the property owned by the applicant.

In addition, the bill made the following changes:

  • Streamlines the ability of municipalities to site and maintain stormwater ponds. In particular the bill provides an exemption from chapter 30 dredging permits for the dredging of existing stormwater ponds, clarifies that upland stormwater ponds can be maintained without a wetland permit and allows DNR to provide credit for on-line ponds in artificial waterways as a method for achieving compliance with DNR's prescribed performance standards for sources of nonpoint water pollution.
  • Clarifies the scope of activities constituting authorized repair and maintenance of an existing boathouse and clarifies the definition of a commercial boathouse.
  • Requires the DNR to issue general permits for the purposes of replacing an existing seawall if no permit was required at the time the seawall was built and restricting the conditions it applies to seawall replacements in ASNRIs only to those that do not prohibit its replacement.  These new exceptions to seawall replacement are in addition to those exceptions that existed under prior law. 
  • Requires the DNR to issue a general permit for construction on all permanent boat shelters, not just those constructed prior to May 3, 1988 as under current law, and limiting the DNR’s ability to impose restrictions on boat shelters.  Specifically, the DNR’s conditions may not govern the aesthetic features or color of boat shelters or the distance at which a boat shelter may extend from the shore, except to prohibit a boat shelter from extending beyond the line of navigation, and may not be based on the degree to which adjacent land is developed.

On balance, the Act represents a step towards restoring riparian property owners’ development expectations for their property, while at the same time maintaining the quality and character of the state’s waterbodies.  Restoring predictability and reasonability to DNR’s permitting process will also likely serve to limit litigation and, presumably, to reduce the significant permit backlogs DNR has incurred over the last several biennia. 

For questions, or more information about Act 387, contact Paul Kent at Stafford Rosenbaum.  

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