Archive for September, 2014

Guidance on Voter ID Law

Monday, September 22nd, 2014

Last week the Government Accountability Board (GAB) posted guidance on implementing the new voter ID law, especially with respect to absentee ballots. While the eventual outcome of the law is in still uncertain, the current state after the recent Federal Court of Appeals decision is that the law is valid and will be in force for the upcoming election on November 4, 2014.  An appeal is pending, but for now the law is in effect.  Guidance can be found on the GAB website.

Lawn Mowing: Landower 1, County 0

Friday, September 19th, 2014

In the recent unpublished case of Forest County v. Dwayne Pasternak, the appellate court overturned a circuit court judgment enforcing a Forest County nuisance citation against a homeowner for a failure to mow his lawn. The appellate court found that the County had failed to show that an uncut lawn constitutes a nuisance.  This case turned on the definition of a public nuisance, and the gist of it was whether or not an uncut lawn creates a hazard to the health and safety of the public.  Under the set of facts in this case, the County had failed to provide sufficient evidence of such a risk to the public.

It would probably be unwise to jump to the conclusion that municipalities cannot enforce violations of ordinances regulating the height of lawns. The court in this case was quick to point out that here the citation was for a public nuisance which allegedly caused a health hazard, and the County had not proved a health hazard.  In other cases, municipalities have successfully enforced ordinances specific to noxious weeds and also maximum height regulations.

Nevertheless, this case, while unpublished, does present some things for municipalities to ponder when attempting to make a private property owner mow his or her lawn. It might also be noted that County action in this case was apparently prompted by a neighbor’s complaint.

As an aside, private property owners who don’t like what their neighbor’s are doing will sometimes try to get the local municipality involved to stop the neighbor. Neighbor against neighbor is a potential minefield where a municipality must tread very carefully.

Safely Driving a Grader on Public Roads Requires Judgment

Wednesday, September 3rd, 2014

In the recent case of Holman vs. Town of Washburn involving an accident between a min-van and a town grader which was scraping ice from an intersection, the grader driver was entitled to governmental immunity.

The mini-van ran into the grader broadside, after it couldn’t stop and slid on an icy road.  The plaintiffs argued that certain statutes created an absolute duty to drive safely.  However the court said that the statute does not require that a driver take some certain and specific action, but instead requires judgment and discretion on the part of drivers.

Although there was some argument about what had actually occurred in the accident, the actual facts of the accident were not critical to the court’s decision.  Instead, the issue revolved around the ministerial duty exception to government immunity.  The court stated “A duty is ministerial, as opposed to discretionary, if it is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion.”  (Internal quotation marks omitted).