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.

Top 10 Municipal Law Developments of 2016

Published by Holly J. Wilson, Jeffrey A. Mandell, Susan Allen 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 2016.

Public records; open meetings. Three important cases affecting Wisconsin Public Records and Open Meetings Law came down this year.

First, in New Richmond News v. City of New Richmond, 2016 WI App 43, 370 Wis. 2d 75, 881 N.W.2d 339, the Wisconsin Court of Appeals held that police departments are permitted to release unredacted copies of accident reports upon request. However, the Court remanded several issues relating to the release of incident reports upon request, questioning whether police departments should release unredacted incident reports containing driver’s information from the DMV. We posted about this decision in May.

Second, in Voces de la Frontera, Inc. v. Clarke, 2016 WI App 39, 369 Wis. 2d 103, 880 N.W.2d 417, review granted (June 15, 2016), the Wisconsin Court of Appeals held that, according to Wisconsin’s Public Records Law, the Milwaukee County Sheriff must produce unredacted immigration detainer forms received from U.S. Immigration and Customs Enforcement.

Finally, in State ex rel. Krueger v. Appleton Area Sch. Dist. Bd. of Educ., No. 2015AP231, 2016 WL 3510300 (Wis. Ct. App. June 28, 2016) (unpublished), review granted, (Oct. 11, 2016), the Wisconsin Court of Appeals held that a committee created by members of the Appleton School District curriculum department “on their own initiative” was not a “governmental body” subject to the open meetings law.

The Wisconsin Supreme Court has granted petitions for review in both Voces de la Frontera and Krueger. We previewed the Supreme Court’s consideration of the Krueger case here

Home rule; preemption. In Milwaukee Police Association v. City of Milwaukee, 2016 WI 47, ___ Wis. 2d ___, ___ N.W.2d ___, the Wisconsin Supreme Court held that Wis. Stat. § 66.0502, which essentially prohibits local governments from enacting residency requirements, precluded the City of Milwaukee from enforcing its residency requirement. We posted about this case when it was decided in June.

Alcohol licensing; social host ordinances. In County of Fond du Lac v. Muche, 2016 WI App 84, ___ Wis. 2d ___, ___ N.W.2d ___, the Wisconsin Court of Appeals invalidated Fond du Lac County’s social host ordinance because it did not strictly conform with Wis. Stat. § 125.07(1) regulating underage drinking. The Court stated that Wis. Stat. § 125.07 does not penalize social hosts for conduct in private residences because “premises” is a defined term that only includes places under permit or license to supply alcohol, not private residences. The Court concluded that the social host ordinance that penalizes underage drinking at private residences prohibits conduct allowed under the state statute and thus does not “strictly comply” with state law. For more on this case, see our post from November.

Zoning ordinances. Generally, 2015 Wisconsin Act 391 created and amended legislation regarding shoreland zoning. It has several provisions that will significantly affect property owners and development. One interesting provision that applies to all Wisconsin land, near water or not, created Wis. Stat. § 895.463. That new statutory provision states that, in any dispute, “the court shall resolve an ambiguity in the meaning of a word or phrase in a zoning ordinance or shoreland zoning ordinance in favor of the free use of private property.” As detailed in this post from July it is not clear how, if at all, this will affect zoning disputes.

Voter apportionment; redistricting. In Evenwel v. Abbott, 578 U.S. ___ (2016), the United States Supreme Court held that states and local governments may apportion legislative districts based on total population under the one‑person, one‑vote rule. The challengers in this case had argued that Texas should not have considered total population but instead should have looked at the population of eligible voters in each district. The Supreme Court held that such an approach would be permissible, but is not required, as states draw congressional districts and seek to make those districts have populations that are close to equal. We explained the import of this decision in April.

In Whitford v. Gill, No. 15-CV-421-BBC, 2016 WL 6837229 (W.D. Wis. Nov. 21, 2016), a panel of three federal judges held that Wisconsin’s 2012 redistricting involved an unconstitutional partisan gerrymander. Of particular import, the decision accepted a new measure, known as the efficiency gap, of how much partisan effect the placement of district lines has. In 2017, the three-judge panel will consider possible remedies for the improper districts, and then the case will almost certainly be appealed to the U.S. Supreme Court. When, as a result of the Whitford decision or as a matter of course after the 2020 census, Wisconsin next draws district lines, both the Whitford decision and the Evenwel decision will be at the forefront of legislators’ minds.

Takings. On January 15, 2016, the U.S. Supreme Court granted certiorari review of the Wisconsin Court of Appeals decision, Murr v. Wisconsin, 2015 WI App 13, 359 Wis. 2d 675, 859 N.W.2d 628 (unpublished) (per curiam), cert. granted, 136 S. Ct. 890 (2016). In Murr, the Wisconsin Court of Appeals held that an ordinance effectively merging the Murrs’ two adjacent, riparian lots for development purposes, did not deprive the Murrs of all or substantially all practical use of their property and was not an uncompensated taking of property. The Supreme Court’s decision in this case has the potential to substantially alter takings jurisprudence; however, the Court has not scheduled oral argument in this case, which has been fully briefed since July. For a more in-depth discussion on this case, see our discussion of an amicus brief we filed on behalf of municipal government interests in June here.

Eminent domain; compensation. In Hoffer Properties, LLC v. State, Department of Transportation, 2016 WI 5, 366 Wis. 2d 372, 874 N.W.2d 533, the Wisconsin Supreme Court held that Wis. Stat. § 84.25(3) authorizes the DOT to change a property owner’s access to state highways in whatever way it deems “necessary or desirable.” Such changes, including elimination of direct access points, are duly authorized exercises of the police power and are not compensable under Wis. Stat. § 32.09, (the just compensation statute), as long as alternate access is provided. Further, the Court held that as long as alternate access is given or exists, a property owner is precluded as a matter of law from challenging the reasonableness of the access and receiving compensation under § 32.09.

Annexation. In Town of Burnside v. City of Independence, 2016 WI App 94, ___ Wis. 2d ___, ___ N.W.2d ___, the Wisconsin Court of Appeals upheld the dismissal of an intervening town’s challenge to a city’s annexation ordinance where the town intervened in an action started by two other towns outside the applicable statute of limitations.

Preemption. On January 11, 2016, the Wisconsin Supreme Court accepted Wisconsin Carry’s petition for review in Wisconsin Carry, Inc. v. City of Madison, 2015 WI App 74, 365 Wis. 2d 71, 870 N.W.2d 675, review granted, 2016 WI 16, 367 Wis. 2d 125, 876 N.W.2d 511. In Wisconsin Carry, Inc., the Court distinguished between agency rules and ordinances or resolutions in applying the preemption provision in Wis. Stat. § 66.0409 when it upheld a City of Madison Transit and Parking Commission rule prohibiting riders on city buses from carrying weapons. The decision in this case could have a significant impact on the ability of municipal agencies to regulate firearms. The Court held oral arguments in September; thus, we expect the Court to issue a decision in the first half of 2017. For more on this case, see this post from March.

Dane County Zoning. 2015 Wisconsin Act 178 (which, despite its name, was enacted on February 29, 2016) establishes a process for certain towns to withdraw from county zoning. This Act applies only to towns in counties with a population of at least 485,000, and therefore, effectively applies only to towns located in Dane County, as there are no towns within Milwaukee County.

Seventh Circuit Decision Calls for Class Action Reform

Published by Susan Allen on | Permalink

In its recent decision in Manistee Apartments, LLC. v. City of Chicago, No. 15-3113 (7th Cir. Dec. 20, 2016), a three-judge panel of the Seventh Circuit Court of Appeals upheld the district court’s dismissal of the plaintiff’s class-action complaint.  Potentially more interesting than the decision itself was the court’s express call for changes to the class-action process to avoid frivolous class actions motivated solely by attorneys seeking fees.

The claims at issue in the case arose from a default administrative judgment entered against Manistee Apartments in 2011 by the City of Chicago.  Once registered, the judgment imposed a lien against Manistee’s real estate holdings.  Manistee claims it first became aware of the lien years later, when pursuing a sale of its real estate.  In response to Manistee’s inquiry, the City provided a payoff letter detailing the outstanding amount, which included the underlying judgment of $3,540, plus $820.34 in statutory interest and $1,394.82 in collection costs and attorney fees.  Manistee disputed only the collection costs and attorney fees.  While working to resolve the City’s claim, Manistee conveyed the property to an out-of-state buyer representing the title was clear.  It also paid the total amount due to the City, but claimed to be doing so “under protest.”  Shortly thereafter, Manistee filed a class action against the City, alleging that the assessment of collection costs and attorney fees violated due process guarantees under the federal and state constitutions, as well as other provisions of Illinois state law. 

The district court granted the City’s motion to dismiss on the grounds that Manistee’s payment to the City was not made under duress, but was voluntary.  As a result, Manistee could not be deprived of a protected property interest under federal law.  Finding no federal constitutional violation, the court applied the same test to dismiss the state constitutional claims and declined to exercise supplemental jurisdiction over the remaining state-law claims.

On appeal, the Seventh Circuit employed similar reasoning in upholding the district court’s decision.  The court noted that there was a more than year-long gap between the date of sale of the property by warranty deed and the release of the lien as well as the fact that the sale price of the property was only $10, ultimately rejecting Manistee’s claim that it was coerced into paying the full amount demanded by the City.  The court easily held that there was no deprivation of any property interest by the City, and upheld the district court’s dismissal of Manistee’s claims.  Noting the extremely minimal amount at issue and the extremely limited pool of the potential class of plaintiffs in the same position as Manistee, the court went on to question the true motivation behind the class action.  The answer:  attorney fees – a fact which plaintiff’s counsel apparently admitted during oral argument.  The court explained “it is cases like the one before us that demonstrate precisely why the courts, and Congress, ought to be on the lookout for ways to correct class action abuses.” 

The court’s distain for attorney abuses of the class action and overall litigation system in this case is clear.  Unfortunately, no easy answer exists to protect defendants against the hassle and costs of such litigation, but the court has issued a clear warning to class-action counsel that it has no patience for this sort of extortion-style litigation.

Seventh Circuit reaffirms that issue preclusion applies to United States government

Published by Jeffrey A. Mandell, Erika Bierma on | Permalink

Anyone who has watched a television legal drama knows that different standards of proof apply in a criminal prosecution and a civil trial; a prosecutor must prove guilt beyond a reasonable doubt, while civil liability requires only a bare majority (a preponderance, in legalese) of the evidence. The Seventh Circuit’s recent decision in United States v. Egan Marine Corp., Nos. 15-2477 & 15-2485 (7th Cir. Dec. 12, 2016), turns primarily on the interplay of those two standards.

In January 2005, a barge exploded en route from Joliet, Illinois to Chicago. The explosion caused the death of a deckhand named Alex Oliva and led to an oil spill. After an investigation, the United States government concluded that the explosion resulted from a sequence of events that began when the master of the tug boat pushing the barge told Oliva to use a propane torch to warm a pump on the barge. Because the barge was carrying clarified slurry oil, the use of an open flame was both inherently dangerous and contrary to federal regulations. The United States sought to place the blame on the tug’s master, Dennis Egan, and its owner, Egan Marine Corp., by obtaining a criminal indictment.

Before pursuing the criminal case, the United States sought civil recovery from Egan Marine. In the civil case, the United States contended that Egan Marine was liable because its employee, Dennis Egan, had negligently instructed Oliva to use a propane torch, which caused an explosion and, in turn, both Oliva’s death and an oil spill. After a bench trial, the court found that “the government did not prove, by a preponderance of the evidence, that Alex Oliva was using a propane torch on the cargo pump of the [barge] at the time of the incident.” Egan Marine, slip op. at 2-3 (quoting district court 2011 decision). The government could have appealed that decision but opted not to.

Undeterred by the civil result, the government proceeded with its criminal prosecution against both Dennis Egan and Egan Marine. The defendants attempted to terminate the criminal case, arguing that the civil determination that the government could not prove its theory by a preponderance of the evidence meant it could not prevail under the higher criminal standard of proof beyond a reasonable doubt. The defendants’ argument rested on the doctrine of issue preclusion (collateral estoppel, in legalese), which prevents a party from relitigating an issue already decided by a court. Issue preclusion prohibits a litigant who lost in one case from filing a new case to try again.

The judge hearing the criminal case—who was not the same judge who heard the civil case—dismissed the defendants’ preclusion argument. He did not assert that the issues raised by the criminal prosecution differed from those in the civil trial. And he did not assert that anything was wrong with or procedurally improper about the civil trial. Instead, “he simply announced that he would disregard the civil judgment because that course seemed best to him.” Id. at 7. At the conclusion of the criminal prosecution, the court found the defendants guilty, sentencing Dennis Egan to prison, placing Egan Marine on probation, and assessing nearly $6.75 million in restitution against both defendants.

In the defendants’ appeal, the Seventh Circuit declared, in no uncertain terms, that the government is no more entitled than any other litigant to “a situation in which it can win but not lose.” Id. at 6. In doing so, the court explained that “had the criminal case gone to trial first and defendants been acquitted, the United States doubtless would be arguing that it could still pursue civil remedies because of the different burdens of persuasion.” Id. In that circumstance, the government would be right. But, “by bringing the civil case first, the United States received the benefit of civil discovery, which is more extensive than that allowed in criminal prosecutions…—discovery that it could put to use in the criminal case as well as the civil one.” Id. at 6-7. While the court acknowledged it could “understand why the United States seeks these advantages,” it did “not think [the government was] entitled to them, without the detriment of being bound by the civil judgment if it loses.” Id. at 7. As a result, the appellate court reversed the defendants’ convictions and ordered that judgments of acquittal be entered.

The case makes clear that the government must play by the same rules as other litigants. And if the government chooses to pursue both criminal penalties and civil recovery, that does not guarantee it two independent chances to make its case. Instead, the government must make strategic decisions and abide by the consequences. While this seems like an obvious principle, it was sufficiently uncertain that the government was willing to argue against it (and that the criminal trial judge accepted the government’s view). Not only does the Seventh Circuit’s decision reject the government’s desired double-standard, it does so emphatically. In addition to using strong, resounding language, the Seventh Circuit issued its opinion only one week after oral argument in the case. One week is an incredibly short period for the three-judge panel to decide the case, have one judge explain the decision in a written opinion, and have the other two judges review, edit, and finalize the written opinion.[1] This immediate turn-around is a substantial departure from usual processes that underscores the court’s view of this case as a slam-dunk.

[1] For context, the most recent statistics, covering the 12 months ending September 30, 2015, show that it took the Seventh Circuit an average of 2.5 months in criminal appeals to issue a written decision after oral argument, and an average of 3.0 months to do so in all appeals. Admin. Office of the U.S. Courts, 2015 Judicial Business, Table 4A, available at

Court of Appeals Affirms Police Officer’s Discharge After Taking Unclaimed Property

Published by Paul W. Schwarzenbart, Holly J. Wilson on | Permalink

In Vidmar v. Milwaukee City Bd. of Fire Police Commissioners, No. 2015AP1832 (Ct. App. Nov. 15, 2016) (recommended for publication), the court of appeals upheld a decision by the Milwaukee City Board of Fire and Police Commissioners (Board) to terminate an officer for rules violations arising out of his falsifying a document that allowed him to take possession of an unclaimed dirt bike from police inventory.

In late August 2012, Daniel Vidmar, a police officer with the City of Milwaukee Police Department since December 2004, saw a dirt bike in an inventory room and thought it would be good for his son. According to Vidmar, he was told by an unnamed person in the Department’s Property Control Division that if the dirt bike was unclaimed after thirty days in inventory, he could claim it as long as someone else was listed as the claimant. Vidmar waited thirty days, and then completed and filed an official form for the release of the bike. He listed a friend as the “claimant” on the form, omitted the date and description of the bike, and misspelled the friend’s name. An audit of returned bicycle records disclosed the irregularities, which led to Vidmar returning the bike. That would have been the end of it, but for the Board receiving an anonymous letter disclosing the incident and suggesting that it was being swept under the rug. At that point a reference was made to the Department’s Internal Affairs Division for a more thorough investigation.

After a referral, the Milwaukee County District Attorney’s office chose not to charge Vidmar criminally. However, the District Attorney’s office advised the Police Department that it would not use Vidmar as a witness in future proceedings. The Milwaukee City Attorney’s office followed suit. In addition, an Assistant United States Attorney advised the Department that if Vidmar were to be called to testify as a witness, his office would be required to disclose the investigation regarding the bike.

At the conclusion of the internal investigation, Milwaukee Police Chief Edward Flynn discharged Vidmar based on three rules violations involving integrity and competence. The Board upheld the termination. Vidmar appealed that decision to the circuit court and also challenged the decision on certiorari. The circuit court affirmed the Board’s decision on appeal and dismissed the certiorari action. Vidmar appealed.

The court of appeals affirmed as well, rejecting Vidmar’s three arguments. The court rejected Vidmar’s first argument – that the Board proceeded on an incorrect theory of law when the Board concluded that he lacked the capacity to enforce federal and state laws and city ordinances in violation of the Department’s policies. The court agreed with the Board that the “capacity” to enforce the laws embraced the “full spectrum” of the responsibilities an officer may be called upon to undertake, including the “crucial” responsibility of giving testimony in court that is worthy of belief.

The court of appeals likewise rejected Vidmar’s second argument, that the circuit court gave undue deference to the board’s findings of fact and credibility determinations. Noting first that caselaw precluded Vidmar from making an evidence-based argument on appeal, the court concluded that “the Board made sufficient findings of fact and credibility determinations to supports its decision.”

Lastly, Vidmar argued that the circuit court applied an incorrect standard of review by focusing on the “reasonableness” of the Board’s decision rather than the “just cause” standard adopted by 1997 Wisconsin Act 237. The court rejected this argument. The court stated that the circuit court applied the correct standard of review by thoroughly considering each of the just cause standards in light of Vidmar’s arguments and found that there was sufficient evidence to support the board’s determination. Thus, the court upheld Vidmar’s termination.  

This decision serves as a reminder that the statutory standards of appellate review in police and fire disciplinary cases are limited to whether the Board kept within its jurisdiction or applied correct legal theories. The court of appeals reviews the Board’s decision. It cannot, for example, set aside a PFC board’s findings of fact and credibility determinations or reweigh the evidence. For additional information about the PFC process in general, including appellate options, see Stafford's previous blog post on this topic. 

If you have any questions about the PFC disciplinary process, contact a member of Stafford Rosenbaum LLP’s Government Law Team members.

Court Prevents County from Regulating Private Underage Drinking Parties

Published by Holly J. Wilson, Susan Allen on | Permalink

In County of Fond du Lac v. Muche, No. 2015AP2223 (Wis. Ct. App. Oct. 26, 2016) (recommended for publication), the Wisconsin Court of Appeals, District II, invalidated Fond du Lac’s social host ordinance because it did not strictly conform with Wis. Stat. § 125.07(1) regulating underage drinking. 

On June 20, 2015, Muche hosted a party at his home in Fond du Lac County. Alcoholic beverages were served at the party. Eventually, “persons under the age of 21 … who were not invited by Mr. Muche, joined the gathering.” Muche had reason to believe that these underage individuals brought beer to the party and “intended to or were consuming it.” County sheriff’s deputies arrived on the scene and cited Muche for violating Fond du Lac County’s social host ordinance, which essentially prohibited adults from hosting underage drinkers in their homes.

Muche challenged the citation, arguing that the ordinance was improperly stricter than state law. The circuit court rejected this argument, found that Muche violated the social host ordinance, and imposed a $1000 civil forfeiture. Muche appealed.

The court of appeals reversed, finding the social host ordinance conflicted with state law. The court first noted that the subject of alcoholic beverages is a matter of state wide concern and, under Wis. Stat. § 125.10, a county ordinance regulating underage drinking must strictly conform to state law. The County argued that its social host ordinance was in strict conformity with the state statute because its language was consistent with Wis. Stat. § 125.07(1)(a)3., which states in part that “[n]o adult may knowingly permit or fail to take action to prevent the illegal consumption of alcohol beverages by an underage person on premises owned by the adult or under the adult's control.” Muche argued that under § 125.02(14), “premises” is specifically defined as “the area described in a license or permit” and does not include a private residence.

The court agreed with Muche, citing Nichols v. Progressive Northern Insurance Co., 2008 WI 20, 308 Wis. 2d 17, 746 N.W.2d 220. The court in Nichols held that parents who allowed underage drinking at their home were not liable for common law negligence when one of the underage guests later caused a car accident. The court noted that Nichols “compels the conclusion that the statute does not penalize social hosts for conduct in private residences” because “premises” is a defined term that includes a place under permit or license to supply alcohol, not private residences. The court concludes that the social host ordinance that penalizes underage drinking at private residences prohibits conduct allowed under the state statute and thus does not “strictly comply” with state law.

This case essentially means that social host ordinances similar to the County’s enacted by local governments are unenforceable. Local governments may now be banned from punishing adults who host or allow underage drinking parties on their property. The County is likely to appeal this decision. Thus, a decision from the Supreme Court could clarify the status of social host ordinances enacted by local governments around the state. The decision in this case could have a significant impact on the ability of local governments to regulate underage drinkers in private residences. Please continue to watch Stafford’s blogs for updates on this case.

Seventh Circuit Holds that Municipality Did Not Violate Business’s Constitutional Rights

Published by Matthew Dregne, Holly J. Wilson on | Permalink

In Black Earth Meat Market, LLC v. Village of Black Earth, No. 15-3818 (7th Cir. Aug. 24, 2016), the Seventh Circuit held that the Village of Black Earth’s efforts to close a slaughterhouse, which included threatened litigation to abate an alleged nuisance, did not violate due process or equal protection.

In 2001, Black Earth Meat Market bought a small building in the Village to operate a slaughterhouse. Over time, the Meat Market had increased the volume and frequency of its slaughter operations. By 2011, neighbors were complaining to the Village about increased traffic, delivery trucks blocking the road, livestock noise, foul odors, improper storage of animal parts, the presence of blood and animal waste in the streets, and escaped animals wandering the streets.  Meanwhile, the Meat Market sought further expansion of its operations.  In August 2013, the Meat Market finalized a loan agreement with the Bank of New Glarus. In order to obtain the loan, the Meat Market had to be able to certify that no suits, pending or threated, would adversely affect the Meat Market’s value as collateral.

In 2013, the Village increased enforcement of violations of its regulations at the Meat Market, issuing 9 citations. The Village held several public meetings to discuss the Meat Market. And it ordered the Meat Market to propose an acceptable plan for relocating its slaughter activities. Finally, in July 2014, the Village directed the Village Attorney to take legal action to eliminate any public nuisance and complaints. The Village’s action led the Bank to back out of its loan agreement with the Meat Market. Shortly after losing its expected financing, the Meat Market closed. The Meat Market then sued the Village in federal court. The district court granted summary judgment in the Village’s favor, and the Meat Market appealed to the Seventh Circuit.

The Seventh Circuit first addressed the procedural due process claim, finding that a mere threat to sue cannot qualify as a deprivation of procedural due process. Further, procedural due process requires notice and opportunity to be heard. The court emphasized that the Meat Market had received notice of all Village proceedings and had every opportunity to be heard at every relevant meeting of the Village board.

Next, the court rejected the Meat Market’s claim that the Village’s actions violated the equal protection clause. The Meat Market argued that the Village treated it differently from other businesses in the Village, solely as a result of sheer malice, vindictiveness, or malignant animosity. The court said there was no evidence to support this claim, and upheld the judgment in the Village’s favor.

The Village took steps to enforce its ordinances, and threatened legal action to abate a nuisance. The Village gave the Meat Market notice and opportunities to be heard throughout the process. This case serves as a reminder that elected officials should not be afraid to take appropriate legal action to enforce lawful ordinances and protect their community.


Published by Laura E. Callan, Matthew Dregne, Jeffrey A. Mandell on | Permalink

By definition, dissenting opinions have no precedential value.  Yet they can provide important perspectives into the judges who decide to write them and the manner and direction in which the law might evolve.  An example may be Seventh Circuit Judge Posner’s dissent in Construction and General Laborers’ Local No. 330 v. Town of Grand Chute, No. 12-1932 (Aug. 19, 2016).

The lawsuit challenged the Town of Grand Chute’s demand that a labor union remove an inflatable rat (with protuberant front teeth) and inflatable “fat cat” (wearing a business suit and strangling a construction worker) that were being used to protest a masonry contractor who did not pay union-scale wages.  The inflatables were located on a public right-of-way opposite the construction project where the contractor was working.  Grand Chute demanded the rat and cat be removed after a property owner complained.  After the complaint, for the first time, the Town alleged that the inflatables violated a local sign ordinance.  The union sued the Town in federal court alleging a violation of the union’s rights under the First Amendment to engage in free speech.  The union argued that the Town had not enforced the sign ordinance against other signs or against the inflatables before receiving the complaint.  The union claimed these facts indicated the Town was targeting the union’s First Amendment speech.  The district court dismissed the complaint, finding that the sign ordinance had the purpose of protecting community aesthetics and safety.

A three-judge panel of the United States Court of Appeals for the Seventh Circuit overturned the district court’s decision, returned the case to the district court, and provided extensive guidelines for reviewing the case on remand.  In a unique opinion, which included large photographs of the inflatable rat and cat, the court determined that the district court had not adequately addressed instances where other signs violated the ordinance but no enforcement had been taken.

The court found that incomplete enforcement of the ordinance “is not an adequate answer to a contention that a unit of government has allowed some speech and stifled other speech, choosing which ideas can be conveyed.”  However, because the rat and cat were taken down and the specific labor dispute triggering the lawsuit had been resolved, the majority found that the case may be moot and remanded the case to the district court for such a determination.

Judge Richard Posner, in a separate opinion, objected to sending the case back to the district court.  Judge Posner noted that large inflated rubber rats, often used by unions in symbolic protest, are merely large picket signs, which are protected speech. Judge Posner wrote:

“For an ordinance to be allowed to curtail a constitutional right, it must be grounded in a legitimate public concern… The town cites two such concerns: aesthetics and safety.  Both are spurious as applied to the union rat….  No citizen of Grand Chute has…expressed revulsion at the rat.  There is no evidence of rat-caused congestion or rat-induced traffic accidents in Grand Chute (or anywhere else, for that matter.)”  Id. at 17 (Posner, J., dissenting).  “And that is no surprise,” Judge Posner continued. “All sorts of what might be considered ‘attractive nuisances’ line the streets and highways of America.”  Id. at 18.

Pointing out that the Town “barely tries” to enforce its sign ordinance and finding that “enforcement is sporadic,” he found that there was no “…evidence that the ordinance serves a governmental purpose that would justify a curtailment of the union’s First Amendment Rights (indeed no legitimate interests at all, as union busting is not such an interest.)”  Id. at 23-24.  In his opinion, the case did not need to be remanded. Instead, he would have ruled in favor of the union.  For Judge Posner, the evidence was clear that the Town of Grand Chute had violated the union’s constitutional right to free speech. 

Municipalities enforcing sign ordinances must tread lightly.  Stafford Rosenbaum’s Government Law team has extensive experience solving the legal problems facing municipalities in regulating signs. - See more at:

Wisconsin Courts Apply Recent US Supreme Court Decision in OWI Refusal Cases

Published by Susan Allen on | Permalink

The United States Supreme Court issued its decision in Birchfield v. North Dakota, 579 U.S. ___, 2016 U.S. LEXIS 4058 (June 23, 2016) only weeks ago. More information on the Birchfield decision is available here. In the brief time since Birchfield was decided, the Wisconsin Court of Appeals has already issued multiple opinions interpreting Wisconsin’s Implied Consent Law in light of Birchfield. State v. Blackman, No. 2015AP450-CR (Aug. 3, 2016) and State v. Dalton, No. 2016AP6-CR (July 20, 2016), both decided by the District II Court of Appeals, highlight the various implications Birchfield may (or may not) have on OWI prosecutions.

In Dalton, the defendant was involved in a one-car crash. He was charged with a second offense OWI and second offense operating with a prohibited alcohol concentration after a warrantless blood draw showed a blood alcohol concentration of .238 – almost three times the legal limit. Dalton’s attorney did not file a motion to suppress the evidence based on the warrantless blood draw, and Dalton pled no contest to the OWI charge.  Under Wisconsin law, a second offense OWI is a criminal misdemeanor. At sentencing, the trial court judge imposed a more severe penalty against Dalton due to Dalton’s refusal to voluntarily submit to the blood draw. After finding Dalton was not entitled to a Machner evidentiary hearing, the court denied Dalton’s postconviction motion to withdraw his plea due to ineffective assistance of counsel, or to be resentenced. 

The court of appeals reversed. Citing Missouri v. McNeely, 133 S.Ct. 1552 (2013), the court noted that the warrantless blood draw would be invalid, unless there were exigent circumstances. However, Dalton’s trial counsel failed to file a motion to suppress, and the issue was not decided. The court found that neither Dalton’s postconviction motion nor the facts in the record clearly established exigent circumstances. Instead, Dalton’s postconviction motion alleged sufficient facts from which a court could conclude that Dalton’s trial counsel provided ineffective assistance by failing to file a motion to suppress, that had such a motion been filed the motion may have been successful and Dalton would not have pled guilty, but instead, would have gone to trial. Therefore, Dalton was entitled to a hearing where he would bear the burden of proof in showing his trial counsel performed deficiently in failing to file a suppression motion, and that he was prejudiced as a result. Addressing Dalton’s alternative request for resentencing, the court instructed that on remand the court should also consider Dalton’s sentencing claims in light of Birchfield, which prohibits the imposition of criminal penalties for refusal to submit to blood testing.

Like Dalton, Blackman arose from a crash. However, unlike Dalton, Blackman agreed to submit to a blood test after being involved in an accident where he hit a bicyclist with his vehicle. After the accident, the officer correctly advised Blackman that if he withdrew his consent to blood testing, his license would be revoked. Blackman provided the sample, and the blood alcohol concentration was .10. The trial court granted Blackman’s motion to suppress the blood sample on the grounds that his consent was coerced.

The court of appeals reversed. It first noted that this case implicated a specific portion of the Implied Consent Law, Wis. Stat. § 343.305(3)(ar)2., which allows for the taking of a blood, breath or urine sample from any driver involved in an accident that results in great bodily harm, regardless of whether there is evidence of impairment from drugs or alcohol. If a defendant refuses the blood test, his or her license will be statutorily revoked; however, a defendant may request a refusal hearing. The court then noted the fact that impairment evidence is not required under Wis. Stat. § 343.305(3)(ar)2. is seemingly contrary to the refusal hearing statute, which strictly limits the issues at a refusal hearing to (1) whether the officer had probable cause to believe the driver was under the influence of alcohol or a controlled substance and (2) whether the driver was lawfully arrested for an OWI-related violation. As a result of this apparent disconnect, a driver such as Blackman could refuse a blood test requested under § 343.305(3)(ar)2. and have his license statutorily suspended, but was likely to succeed in having the revocation reversed at a refusal hearing.  Nonetheless, citing its decision in State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867, the court found that Blackman’s consent was not coerced. Blackman chose to provide a sample of his blood, and the fact that he may have prevailed at a refusal hearing did not negate his freely given consent. In a footnote, the court noted the Birchfield decision, but found it inapplicable in this case as the Wisconsin Implied Consent Law does not provide for criminal penalties for refusal.

The Dalton and Blackman cases harmoniously apply Birchfield, differentiating between those case implicating criminal penalties (Dalton) and those resulting in only civil penalties (Blackman). As additional cases are decided in Wisconsin with Birchfield in mind, its full effect will no doubt be clarified. Further, as suggested by Blackman, there may also be need for legislative changes to better refine Wisconsin’s Implied Consent Law.

How Will Wis. Stat. § 895.463 Affect Disputes Over the Validity of Zoning Regulations?

Published by Jeffrey A. Mandell on | Permalink

A new statutory provision adopted as part of 2015 Wisconsin Act 391 asserts that, in any dispute, “the court shall resolve an ambiguity in the meaning of a word or phrase in a zoning ordinance or shoreland zoning ordinance in favor of the free use of private property.” Wis. Stat. § 895.463. On its face, this seems like an unremarkable affirmation of the longstanding rule that zoning ordinances are to be strictly construed in favor of the free use of private property. But it can also be read to reverse the principle that zoning ordinances are presumed valid and liberally construed in favor of the zoning authority.

Litigation testing the validity of zoning regulations has long pinballed between these two approaches. Lawyers and courts seeking to uphold a zoning restriction rely on the idea that, because “[z]oning is a matter of legislative discretion,” courts “must start with the premise that a zoning ordinance … is presumed valid and must be liberally construed in favor of the municipality.” Step Now Citizens Grp. v. Town of Utica Planning & Zoning Cmte., 2003 WI App 109, ¶ 26, 264 Wis. 2d 662, 663 N.W.2d 833 (internal citations omitted). This idea is rooted in the statute authorizing the exercise of municipal zoning authority, see Wis. Stat. § 62.23(7)(am), and it echoes throughout Wisconsin case law, see, e.g., Town of Rhine v. Bizzell, 2008 WI 76, ¶ 18, 311 Wis. 2d 1, 751 N.W.2d 780 (quoting State ex rel. Am. Oil Co. v. Bessent, 27 Wis.2d 537, 546, 135 N.W.2d 317 (1965), to hold that, because “a comprehensive zoning ordinance was a justified exercise of the police power not only in the interest of public health, morals, and safety, but particularly for the promotion of public welfare, convenience and general prosperity,” it followed that such an ordinance “is presumed valid and must be liberally construed in favor of the municipality” (internal quotation marks and citations omitted)).

On the other hand, lawyers and courts seeking to strike down a zoning regulation lean on the idea that “zoning ordinances are in derogation of the common law and, hence, are to be construed in favor of the free use of private property.” Heef Realty & Invs., LLP v. City of Cedarburg Bd. of Appeals, 2015 WI App 23, ¶ 7, 361 Wis. 2d 185, 861 N.W.2d 797 (internal quotation marks omitted); accord, e.g., Schultz v. Vill. of Stoddard, 2006 WI App 78, ¶ 9, 292 Wis. 2d 486, 713 N.W.2d 192 (“When construing a zoning ordinance, we resolve ambiguity in the meaning of the ordinance in favor of the free use of private property.”); Missionaries of Our Lady of La Salette v. Vill. of Whitefish Bay, 267 Wis. 609, 614, 66 N.W.2d 627 (Wis. 1954). Under this approach, because “public policy favors the free and unrestricted use of property,” private property rights yield only to crystal-clear restrictions and any regulatory ambiguities are construed to the advantage of landowners. Crowley v. Knapp, 94 Wis. 2d 421, 434-35, 288 N.W.2d 815 (1980).

The Wisconsin Supreme Court has attempted to harmonize these two strands of case law, holding that “the power of the county to enact land use restrictions should be liberally construed” while “affirm[ing] the strict construction of terms in a zoning ordinance.” Cohen v. Dane Cty. Bd. of Adjustment, 74 Wis. 2d 87, 91, 246 N.W.2d 112 (1976). Yet both lawyers and courts have more often treated these strands not only as distinct, but also as diametrically opposed.

If the strands are seen as opposite assertions of law, then Wis. Stat. § 895.463 resolves the conflict because the Legislature has placed its thumb on the scales, tipping the balance in favor of private property owners. However, because the two strands of thought are not really in opposition and the Wisconsin Supreme Court’s Cohen decision shows how they can coexist, Wis. Stat. § 895.463 may not be as outcome-determinative as some may expect. Cohen is a roadmap showing how, even after Wis. Stat. § 895.463, courts can continue to defer to appropriate local zoning regulations. The question is whether courts will choose to read that map. 

Law clerk Olivia Pietrantoni assisted in researching and writing this post. 

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