You can’t have it both ways in court: judicial estoppel

December 2nd, 2016

Courts sometimes invoke a doctrine called Judicial Estoppel. Essentially, it means you can’t take two positions or make two arguments (often in the same case) that are inconsistent with each other.  A classic example is a border argument between Maine and New Hampshire, in which New Hampshire, having previously agreed to a certain border to settle a lawsuit [New Hampshire v. Maine, 426 US 363 (1977)], tried to claim some land was in New Hampshire in a different lawsuit against Maine [New Hampshire v. Maine, 532 U.S. 742 (2001)].  The US Supreme Court argued that New Hampshire could not, after agreeing to the borderline in the 1977 case, now argue that the border was different.

In a recent Wisconsin case, Gerhartz v. Town of Lomira, Eugene and Catherine Gerhartz won and lost. The Town had permitted one of Gerhartz’ neighbors to place a pipe (for pumping manure) and manhole in a Town right of way on the Gerhartz’ property.  Gerhartz sued the Town for inverse condemnation, a “taking.”  Gerhartz was successful in arguing that the Town had taken Gerhartz’ property without just compensation, and was awarded compensation.

Gerhartz also sued the neighbors, Jeff and Brenda Elsinger, for trespass. The trespass claim was based on the fact that the Town had no authority to allow the Elsingers to use the town right of way for private purposes (pumping manure).

The court held that the Gerhartz could not argue both that the taking was valid and receive compensation for the taking, and also argue that the taking was invalid, and receive compensation for trespass.

What does “of” mean?

September 27th, 2016

When a county sues a town, it can get confusing. In Calumet County vs. the Town of Harrison, Calumet County sued the Town for the Town’s failure to pay the County for removing snow from a county owned sidewalk along a county highway.  The County apparently felt the Town was responsible for removing all snow from all sidewalks in the Town, no matter who owned them.  The circuit court disagreed and held for the Town.  The appeals court also held for the Town.

This case makes for interesting reading, if only because it shows the lengths parties will sometimes go to in court cases. The entire case was, more or less, about the meaning of the word “of.”  Of course, the court of appeals only gives us those facts that it relies on to make its decision, and there are almost always two sides to every story, but the County does not come out very well in this one.  The statute states that the town shall remove snow and ice from the sidewalks “of” the town.  The county argued that this meant all sidewalks within the town.  The Town argued that this meant all sidewalks owned by the Town, and the courts agreed with the Town.

Consequences of incivility on city council

September 8th, 2016

The City of Lake Elmo is a suburb of St. Paul.  I know this blog is about Wisconsin municipal law, but a recent article in the St. Paul Pioneer Press caught my attention and I thought I’d bring it over to Wisconsin as a cautionary tale.  The City of Lake Elmo has been in the news quite a bit the last few years, primarily due to the behaviour of certain members of the city council.  Of course they blame each other for the problems, kind of like: “I’m not disrespectful you are.  No you are.  No you are.”

Aside from making Lake Elmo the subject of a certain amount of ridicule in the Twin Cities area, the antics of the Council have now had some potentially serious consequences.

The City’s insurer, the Insurance Trust Board of the League of Minnesota Cities, decided to increase the City’s deductable from $500 to $200,000.  The insurance company said it is because the way City Council members treat each other, the City’s employees, and other government officials has greatly increased the risk of claims against the City.

The article in the paper noted, “Eight city hall workers have left since March 2015. The city’s administrator is the sixth one hired in seven years.”

You can read the Pioneer Press article here.  or just do a “Google” search on Lake Elmo.

City Sign Ordinance Unenforceable

July 6th, 2016

An Eagle River inn proprietor and one the neighboring businesses were having a dispute over parking issues. The inn proprietor put up a sign prohibiting his neighboring businesses’ customers from parking on the Inn parking lot, specifically stating the neighbor’s business name and indicating their customers were “rude.”

Somehow the City of Eagle River got involved, because this business sign, according to the City’s interpretation, was prohibited by the City’s sign ordinance. There is also a state statute that expressly permits a private party to erect no parking signs much like the one in question.

Thus we have a preemption issue, and the Court of Appeals made short work of the case, stating that the state statute preempted the city ordinance and the sign was permitted under state law. Thus the city ordinance could not be enforced against this sign, under these circumstances.  (It’s a bit complicated, but the City ordinance did not restrict no parking signs on private property, instead it prohibited certain kinds of off premises signs, and the argument was that since the sign was on the inn’s property, but was directed at the off premises neighboring business, it was in violation of the City’s sign ordinance).

I see two lessons here – the City’s ordinance may well be valid as written, but was invalid as applied in this case. So even though the language of the city ordinance didn’t exactly prohibit no parking signs, in this case it prohibited this no parking sign.  Thus state law preempted this specific application and enforcement of the ordinance, but didn’t invalidate the ordinance itself.

The other lesson that appears is that neighbors in disputes often want to drag local municipalities into what is, at its core a private dispute. Municipalities should be wary of intervening in private disputes, and make sure any intervention is an appropriate use of local government authority.

Adverse Possession against or by Municipalities Eliminated

March 3rd, 2016

On March 1, 2016, Governor Walker signed 2015 Wisconsin Act 219 into law eliminating adverse possession by or against municipalities.  In other words, individuals or entities cannot acquire publicly owned land by adverse possession, and likewise municipalities cannot acquire privately owned land by adverse possession. (This also applies to other state or county owned land).

According to the legislative memo accompanying the bill, “The prohibition applies retroactively to adverse possession or use where the current 20 year occupancy requirement has not been met at the time of the effective date of the bill.”

I still see some potential for disputes over borders in cases where it is unclear if the 20 year requirement was met prior to the effective date of the new law.

When is a “note” a “note” under the Public Records Law?

January 21st, 2016

It should go without saying, but I’ll say it, that the Wisconsin’s public records law favors public disclosure of public records. Thus questions of whether or not to release a “record” should generally be guided by the presumption of disclosure.

Nevertheless, the public records law does have exceptions, and one of them is for “notes.”  “Notes” are expressly excluded from the definition of record.   As seems to be a common enough occurrence, even the definition of a deceptively simple word like “notes” can lead to a circuit court case, and an appellate court case – The Voice of Wisconsin Rapids, LLC, v. Wisconsin Rapids Public School District.

In this case, although it took it several pages to come to the conclusion, the appeals court affirmed the lower court, and decided that handwritten notes which “were never exchanged, shared with anyone, or otherwise available to anyone [other than] the person drafting the notes,” were notes intended for the personal use of the note taker, and “therefore were not “records” under Wis. Stat. § 19.32(2).”

Although the case was complicated, in the end it seems safe to say that if a person writes notes that they only intend for their own use to refresh their recollection and never share these notes with anyone else, that they are notes which are exempt from disclosure under the public records law because they are not actually “records.” Although this did not come up in the case, since they are not “records”, are they then not subject to the record retention laws?

Fee for Providing Fire Protection May be Charged to County Owned Property

December 18th, 2015

The Clark County Town of Hoard enacted an ordinance imposing an annual fee on all property owners within the Town for the cost of fire protection, whether they actually used the service or not – in other words whether there was a fire or some other incident or not. Clark County owned some property in the Town on which was located a medical center.

Pursuant to the ordinance, the Town sent the County a bill for the fee for fire protection. The County, apparently, refused to pay the bill, and the Town sued. (See Town of Hoard v. Clark County, decided in November of 2015 – note: the County could appeal this case to the Supreme Court, so this may not be the final outcome).

The County claimed that the fee for the fire protection was actually a tax, because it was not a fee for fire protection actually provided, but only for potential fire protection. The County argued that since it is exempt from taxation, should not be required to pay the tax.

In reviewing the Statute, § 60.55, the Court determined that the Town was required to provide for fire protection to the entire Town, and was permitted to “Charge property owners a fee for the cost of fire protection provided to their property.”  The County argued that this meant fire protection actually had to be provided to a specific property, and the Town could not impose the fee for the cost of having a fire department.  But the Court determined, based on case law, that Towns could impose a fee on all properties, so long as it was reasonably related to the actual costs of providing the protection.  The Town showed that the fees for fire protection were directly related to the cost of having a fire department (in this case, a fire department composed of several municipalities).  The Court upheld the ordinance.

Posting Notices on the Internet

November 30th, 2015

Wisconsin law requires municipalities to either publish or post various legal notices.  In general, “publishing” means publishing in the local or the officially designated newspaper, while “posting” means literally placing the notice on a public notice board or other such place where the public is likely to see it.

In those cases where posting is allowed by state law, the former requirement was that notices had to be posted in at least three places where the public was likely to see the notice.

The Governor recently signed 2015 Wisconsin Act 79 into law, which allows municipalities that choose to post notices to do so in one physical public place and on the municipality’s website, instead of posting the notice in three places.  For example, if you formerly posted your agendas in three places, a Town may now choose to post the agenda on the Town’s website and then in at least one physical location.  As always, there are exceptions.  Consult with your municipal attorney for your specific questions.

Keep in mind that this new internet posting is an option, not a requirement – a municipality may continue to post in three places, or more, and municipalities are not (yet) required to have websites.

Prevailing Wage Law Repealed Effective January 1, 2017

October 19th, 2015

Wisconsin’s 80 some year old Prevailing Wage law has been eliminated for cities, villages and towns (and some other local governmental units), effective January 1, 2017.

During calendar years 2015 and 2016 the prevailing wage laws remain in effect. The repeal included a statement that this repeal was a matter of statewide concern, and that municipalities are prohibited from enacting local prevailing wage laws.

The repeal of the prevailing wage law was part of the annual budget, a copy of which can be found at this website. See page 352 for the specific section.

In addition, according to a Department of Workforce Development statement issued in July, projects which are under contract or for which the local government has issued a request for bids prior to January 1, 2017 will remain subject to the prevailing wage law for the life of the project. See the DWD website for further details.

Reed v. Town of Gilbert – First Amendment Case May Void Many Local Municipal Sign Ordinances

August 20th, 2015

You may have missed this in the news, probably because there was almost no news coverage of it. In Reed v. the Town of Gilbert, the Supreme Court declared a municipal sign ordinance unconstitutional because it violates the First Amendment. By way of background, in case you’re thinking the “town” of Gilbert is some small out of the way place, it is basically suburban Phoenix, it has a population of over 200,000, and one of the highest median incomes of any municipality in Arizona.

Also by way of background, for those of you who have never read the First Amendment, it’s not too long – here’s your chance: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

This language has been widely litigated and ended up in many, many Supreme Court Cases. In this case, the Supreme Court held unanimously that Gilbert’s ordinance, which has different rules and exceptions for certain categories of signs, violates the First Amendment. Specifically in this case, Gilbert’s Sign Code had restrictions on temporary directional signs that were not applicable to political signs and ideological signs. In this case, a small church in Gilbert would put up signs giving people directions to its Sunday service. The church had no permanent building, and so services would often be in different locations from week to week. In Gilbert, a person could put a politician’s campaign sign up for longer periods than a person could put up a directional sign. The Supreme Court said that this violated the First Amendment.

When it comes to local municipal sign ordinances, the general rule is that sign codes should be content-neutral. How that gets interpreted by courts is complicated. One very rigid test is if you must read the sign in order to tell whether it complies with your sign law, that sign law is content-based. However, that rigid test is not “black letter law” – there are a number of exceptions to this kind of strict interpretation, for example distinctions tied to obscenity, defamation, libel and slander. A classic example is that your right to free speech does not give you the right to yell “fire” in a crowded theater. In addition, there is a previous Supreme Court decision allowing a distinction between commercial and non-commercial speech. Of course, one does need to read the sign to know if it is commercial, or slander, etc.

In a complete reversal on what has been traditionally understood regarding exceptions for political speech (primarily election campaign signs), content-based exceptions to prohibitions, or variations in treatment of signs, can invalidate the prohibition itself. For example, an example I suspect will be found in many local sign ordinances, having an exception allowing or favoring political signs may invalidate an ordinance.

Local governments should probably have their sign ordinance reviewed by their municipal attorney.