Archive for April, 2013

Statewide Frac Sand Regulation?

Thursday, April 25th, 2013

I doubt it.  Given the political climate in Madison, it seems unlikely that any bill on a topic that is at all controversial will get anywhere if it is proposed by a member of the minority party…but maybe that’s just me being cynical.  In any event, Democrat Kathleen Vinehout of Alma, Buffalo County, Wisconsin, an area where frac sand mining can be found, has proposed several statewide regulations on sand mining.  Currently, although the DNR has oversight of air or water pollution concerns, for the most part any regulations will be at the local level, either county or municipal (town, village or city).  Senator Vinehout has proposed regulations that would require setbacks and buffers from neighbors, require greater public notice in the early stages of mine planning, require greater local control in the form of conditional use permits, and require sellers of real estate to disclose knowledge of frac sand mining on neighboring properties.  Click here for information on the proposed bills.

Bottom of the Eighth: Act 10 Two, Union Zero; Elected Employees Zero

Tuesday, April 23rd, 2013

The dust is beginning to settle in the various court cases involving Wisconsin 2011 Act 10.  Two recent court of appeals decisions have upheld portions of the new law.  As a reminder, Act 10 greatly changed and severely limited the collective bargaining ability of public employee unions, as well as putting limits on government contributions to certain types of pensions, and limiting the ability to negotiate contributions to and design of health care benefits.

Milwaukee Police Association v. City of Milwaukee

In a previous Municipal Alert, we had reported that there were three district court cases which had arrived at different and somewhat conflicting outcomes with regard to public safety employees’ rights to collectively bargain for health care benefits.  An appellate court decision, issued on April 16, 2013, has perhaps settled that question, although the union will have an opportunity to petition the Wisconsin Supreme Court if it so chooses.  But for now, Milwaukee Police Association v. City of Milwaukee held that municipalities and public safety employees may not bargain about “deductibles, co-pays, prescription costs, etc.”

The statute says that municipalities are prohibited from bargaining about:

“The design and selection of health care coverage plans by the municipal employer for public safety employees, and the impact of the design and selection of the health care coverage plans on the wages, hours, and conditions of employment of the public safety employee.” Wis. Stat. 111.70(4)(mc)6.

Basing its decision on the plain language of the statute, keying in on the “impact of the design and selection” provision, the court held that this provision prohibits bargaining about those things that are, arguably, only indirectly impacted by a municipality’s selection of health care coverage plans.

Ronald D. Cramer v. Eau Claire County

In another “Act 10” related case which did not involve unions, Cramer v Eau Claire County, the County Sherriff and the County Treasurer, both non-union elected officials, had argued that the County could not reduce its contributions to their pension or health plan.  The County argued they were required by Act 10 to reduce the contributions to the WRA pensions, and permitted to reduce contributions to health care benefits.  The officials relied on a non “Act 10” statute, § 59.22, which prohibits counties from reducing “compensation” during a term of office.  The officials argued that “compensation” included county contributions toward pension and health insurance.  The court disagreed.  In a fairly intricate bit of statutory interpretation, the court held that compensation included salary and fees, but not contributions to benefits.  Thus the county could reduce contributions to health care, and was required to reduce its contribution to the WRA retirement plan.

Presumed Innocent?

Friday, April 19th, 2013

Although I don’t generally report on prosecutorial matters, I found City of West Allis v. Robert C. Braun interesting because of its twist on the burden of proof.  Let me explain: the City of West Allis issued Mr. Braun a municipal citation for a violation of a municipal ordinance regarding disorderly conduct over an incident at some sort of rally at City Hall.  As a general rule, violations of municipal ordinances are civil, not criminal in nature.  The “presumption of innocence” arises when one is charged with a crime, but generally not when one is charged with a municipal ordinance violation.  This is so because, as a basic premise cities cannot create crimes, only “the state” (e.g. Wisconsin or the federal government) can proclaim a given activity (or more rarely, inactivity) a crime.

In this case, the judge had given the jury instructions based on the criminal presumption of innocence.  However, as the City pointed out, the defendant was not entitled to that presumption, and, assuming the jury followed the instructions, it applied the wrong law.  In this case, involving a civil forfeiture, the jury should have been instructed that the City was required to prove to by a “reasonable certainty by evidence which is clear, satisfactory, and convincing that the defendant is guilty.”  But the defendant was not entitled to a presumption of innocence.  This may seem like a technicality to the casual observer of the law, but maintaining precise distinctions between the burdens of proof is a long standing doctrine in our legal system, and generally works to protect the innocent and the victims of bad actions alike.

Partial vs. Total Taking Not Relevant

Wednesday, April 10th, 2013

In a recent Appeals Court case, Gaborsky v. Zerkwekh and the City of Delafield, the court upheld the general notion that for a taking by government to occur, there “must be either a physical occupation or the deprivation of all or substantially all of the beneficial use of the taken property.”  In this case, a property owner, Zerkwekh, and the DNR had determined to remove a dam.  The dam had created a mill pond on which the plaintiff’s properties were situated.  In addition, tests of the sediment which was exposed by the draw down of the dam showed signs of contamination.  The plaintiffs argued that the contamination was caused by the City of Delafield, and that a partial taking had occurred.

The plaintiffs tried to distinguish between a partial and total taking, arguing that somehow the bar was lowered for a partial taking – apparently they argued that the “substantially all” portion was somehow not applicable in a partial taking.  But the court noted that the parties had not been physically deprived of their property, nor had they been deprived of “all or substantially all” beneficial use.  If anything, only a portion of their property had been affected by the alleged government action, and not to the “substantially all” extent.  The court affirmed the lower court ruling that it doesn’t matter whether the alleged taking is partial or total, that the test for a taking is either “physical occupation” or “deprivation of all or substantially all of the beneficial use” of the taken property.  The court held that no taking occurred, partial or otherwise.