Archive for November, 2011

You Can’t Fight City Hall or Certiorari is a Tough Nut to Crack

Friday, November 18th, 2011

There’s an old saying – “you can’t fight city hall” which partly stems from the doctrine of sovereign immunity (there’s another old saying – “the king can do no wrong”).  While this is not strictly true, it is certainly the case that challenging a municipality’s decision on a matter of local concern will be an uphill battle.  The recent case of Mohs v. City of Madison involving the proposed redevelopment of the Edgewater Hotel in Madison is a case in point.  As the court noted before beginning its analysis of the arguments, “Wisconsin courts have repeatedly stated that on certiorari review, there is a presumption of correctness and validity to a municipality’s decision.”  (quoting Ottman v. Town of Primrose – see previous blog entry for info on the Ottman case).

 Nearby landowners, Frederic Mohs and Eugene Devitt, and two limited liability entities, Wisconsin Ave. House LLC and 122 East Gilman LLP (collectively the appellants), challenged the Madison Common Council’s decision to grant a Certificate of Appropriateness, which was required by the Edgewater developers because the Edgewater is in a historical district.  However, at the end of the day, the Court noted that the challengers’ main arguments were that the Council shouldn’t have decided it the way it did, and shouldn’t have accepted the credibility of testimony that it found credible.  The Court made clear that courts “do not second guess credibility determinations” made by local government intities and courts “are not empowered to question the wisdom” of decisions concerning local issues “like the one made by the (City) Council…”

Public Records Request Once Removed

Thursday, November 10th, 2011

In the recent appellate court decision of Juneau County Star-Times v. Juneau County, the appeals court held that billing records from a sub-contracted attorney to the County’s insurance company, which were not and had never been in the possession of the County, were subject to disclosure under the public records law.  Juneau County was insured by Wisconsin County Mutual Insurance Corporation (“WCMI”).  WCMI hired a law firm to handle a case for the County, and that law firm billed the insurance company.  The Juneau County Star-Times made a public records request for the law firm’s bills to the insurance company.  While the County did provide the records, they were heavily redacted.

In circuit court, the County and the newspaper argued whether the records were even subject to the public records law, since they were not in the County’s possession and were not, directly, produced on behalf of the County.  The County argued that since the cost to the County was the cost of the contract between the County and WCMI, the bills sent to WCMI from the law firm were not directly related to the County’s business (that’s my paraphrasing), and if they weren’t, then they’re not government records.  The circuit court agreed.  However, the appeals court held they were subject to the public records law because they were “collected” under a contract the County had with WCMI. 

 I see a large grey area where internal business records of a company that contracts with a municipality or county might be subject to a public records request under this ruling, and I expect to see additional litigation on this in the future.

Presumption of Correctness in Interpreting Local Ordinance

Friday, November 4th, 2011

In Ottman vs. the Town of Primrose, the Ottmans bought a parcel of land that was zoned exclusive agricultural.  This zoning district also had restrictions on the ability to place driveways and residences on the parcel.  Initially the Ottmans began development of a tree farm.  However, after a few years they decided that they wanted to build a residence on the property, and applied for a driveway permit.  Citing a town ordinance requiring proof of agricultural income before a residence could be built, the town board turned down the application.  The town board interpreted their ordinance to require a showing of actual income.  The Ottmans argued that they didn’t need to prove actual income, only potential income.

 One of the principle holdings in Ottman was that a municipality’s reasonable interpretation of its own ordinance was entitled to a presumption of correctness.  The Court was careful to add that if the local interpretation would also be, in effect, an interpretation of a state law, then the local board was not entitled to a presumption of correctness, stating “A court should not defer to a municipality’s interpretation of a statewide standard.”

But, the court made it clear that “In situations where the language of a municipality’s ordinance appears to be unique and does not parrot a state statute but rather was drafted by the municipality in an effort to address a local concern, we will defer to the municipality’s interpretation if it is reasonable.”