Governor Doyle Signs Municipal Court Bill

On May 18th, 2010, Governor Doyle signed 2009 Senate Bill 383 into law. The new law makes a number of changes to Wisconsin Chapter 755 regarding the creation and operation of municipal courts, and Chapter 800 which defines municipal court procedure. The following links will provide you with a summary and detailed information on the new law. Most of the provisions of the new law go into effect on January 1, 2011.

Inside Track article. This article provides a good overview of the various changes.

Senate Bill with legislative analysis. This document provides the legislative analysis of the need for the new law and the major changes, as well as the actual test of the statutory revisions.

The act itself, 2009 Wisconsin Act 402 .

The legislative history of the bill can be found here.

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Governor Doyle signs AB-260 effectively overruling Wood v. City of Madison.

On May 18th, Governor Doyle signed AB-260 (Wisconsin Act 399) effectively overruling Wood v. City of Madison, 2003 WI 24. In Wood, the court ruled that the City of Madison could reject a plat in the extraterritorial subdivision area based on the proposed use. The new law prohibits a municipality (city or village) from denying approval of a plat or certified survey map on the basis of the proposed use of the land in the extraterritorial area (unless there is a plan or regulation adopted under the extraterritorial zoning statute – 62.23(7a)(c)).

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Decision to trim trees discretionary not ministerial and thus entitled to immunity.

In Nelesen vs. the City of Appleton (unpublished), a tree fell over in a wind storm and damaged Nelesen’s property. Nelesen essentially argued that since a tree on City property had had branches fall onto and damage his property in the past, the City knew the tree would cause property damage in the future and (apparently) the City should have removed it rather than trim it, and thus the City had a ministerial duty to remove the tree. However, the circuit court found that the City forester had evaluated the tree, trimmed it, and graded is as acceptable, and this was a discretionary action. The court noted that the forester had to make a judgment when evaluating the condition of a tree, and that the forester had done his job. Thus there was no ministerial duty to remove the tree.

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Meeting Agenda Requirements

Municipal Law Alert, May 2010

Does the published agenda for your municipal meeting comply with the legal requirements? Maybe not.

The purpose of an agenda in Robert’s Rules of Order is to provide for an organized and predictable order of business and, if included with the advance notice of the meeting, to give the participants an opportunity to prepare for the topics to be discussed. Although those concepts apply to a governing body agenda, they are not sufficient to analyze the adequacy of a municipal agenda. Government bodies have to follow Wisconsin’s Open Meeting Law. That changes everything.

The Open Meeting statute opens with a declaration of policy that provides, In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of government business.

Wis. Stat. § 19.81(1).

In order to promote public awareness of the affairs of government, the law requires that the agenda for a public meeting be published in advance and that it contain enough information to alert the citizenry of the matters to be addressed at the meeting. The specific statute provides,

Every public notice of a meeting of a governmental body shall set for the time, date, place and subject matter of the meeting, including that intended for consideration any contemplated closed session, in such form as is reasonably likely to apprise members of the public and the news media thereof.

Wis. Stat. § 19.84(2).

For our analysis here, the operative words are that the posted and published agenda must be in such form as is reasonably likely to apprise members of the public and the news media thereof. That means that the notice should be as specific as possible. A good test would be to ask whether John Q. Citizen would understand what is going to be discussed and make a rational informed decision about whether he should attend the meeting. If a reasonable citizen would not be able to read the agenda and determine whether or not it relates to an item of interest, then the agenda is probably legally defective.

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Parliamentary Procedure for Local Government: What’s Your Procedure?

Municipal Law Alert, May 2010

Lawyers are not generally parliamentarians, but municipal lawyers are often called upon to advise clients regarding proper parliamentary procedure. Before giving advice on parliamentary procedure, everyone must understand what rules apply. There is little guidance on parliamentary procedure in the state statutes. Typically, a local municipal body conducts itself in accordance with its ordinances and bylaws instead of state law.

As a general matter, except with respect to a few mandatory procedures, state statutes are silent regarding procedural requirements for local governments. Wisconsin Stat. §§ 62.11(3)(e) and 61.32 provide cities and villages, respectively, with relatively broad authority to adopt parliamentary procedures for regulating meetings and actions. Thus, most municipalities have adopted ordinances that set forth the parliamentary procedure to be followed in that municipality.

Many people may believe that adoption of Robert’s Rules of Order is compelled. It is not. However, many municipalities have adopted some version of Robert’s Rules. Some municipalities simply adopt the revised version of Robert’s Rules. For example, § 23-6 of the City of Hudson’s Code provides that the proceedings of the meeting shall be conducted “in accordance with the parliamentary rules contained in Robert’s Rules of Order Revised, unless otherwise provided by statute or by these rules.” While the ease of completely adopting Robert’s Rules is attractive, there are some drawbacks. The latest revised version is over 700 pages long and is very formal, complicated and technical. Thus, some municipalities have opted to be governed by less formal rules. For example, the Town of St. Croix Falls has adopted A Guide to Parliamentary Procedure for Local Governments in Wisconsin (Larry E. Larmer, 1998) as its primary guide to procedure. In addition, the League of Wisconsin Municipalities has published two handbooks that could be adopted: The Conduct of Common Council Meetings and The Conduct of Village Board Meetings. Each of these books contains model ordinances establishing rules of procedure for common counsels and village boards.

Regardless of which method is chosen, it is important to keep in mind that none of these supplemental materials can vary state statutes. Thus, for example, if any of these books conflict with Wisconsin’s open meetings or public records laws, state law trumps. It is also important to keep in mind that some rules have been interpreted by Wisconsin courts. For example, the Wisconsin Supreme Court in Board of Supervisors of Oconto County v. Hall, 47 Wis. 208, 2 N.W. 291 (1879) held that a quorum must actually vote on a matter. In Hall, there was a quorum present at the meeting. However, on a particular issue, the votes of two of the members could not be counted as a result of a conflict of interest. This resulted in the reduction of qualified voters to less than a quorum (even though there was a quorum present at the meeting). Holding that the vote failed for lack of a quorum, the Court stated:

When a vote is taken and the result shows that no quorum has voted, the vote is not declared, and proceedings on the order or business are suspended until a quorum can be obtained; and it is quite immaterial that there is a quorum actually present if no quorum votes. Id. at 296.

Rules should not be adopted just for the sake of adopting rules. Instead, adopting good, clear rules of procedure provides local governments with a host of benefits. In his introduction to A Guide to Parliamentary Procedure for Local Governments in Wisconsin, Larry Larmer stated: “Such rules promote fairness, equality, and order so that members of local government units can deliberate on equal footing and so that their constituents will be fairly represented.” Our experience as local government lawyers bears this out. If everyone has an opportunity to be heard and everyone is subject to the same rules, acrimony and discord are minimized, while efficiency and effectiveness are maximized.

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Clearing the Right of Way

Municipal Law Alert, May 2010

A common issue raised in municipalities involves trees and other vegetation in the right of way. Who is responsible? Can municipal employees trim? Do they need the owners’ consent? This article summarizes the law on clearing the right of way of vegetation, but does not cover snow or ice removal, or the repair or maintenance of highways and sidewalks.

Before discussing clearing the right of way, it may be useful to ask, just what is the “right of way”? Although there is no single statutory definition of right of way in Wisconsin, the term is widely used in the statutes and in case law. In general, it appears to mean any “way” that the public has a right to travel over. Thus, it means any kind of road and also includes alleys, sidewalks, and public parking lots. It also can include the area under and over the surface of the right of way, which is often used for utilities. It includes not just the actual portion of the “way” that is generally traveled upon, but encompasses all of the land controlled by the state or municipal authority which has responsibility for that right of way. Accordingly, it includes the shoulders of roads and any adjacent land on either side of the road out to the boundary of municipal control over that right of way. Municipal control over the right of way may even apply to privately owned land that happens to be a public right of way.

While there is no explicit mandate to mow the lawn or trim or remove trees and shrubs from the right of way, municipalities are under a general duty to keep the rights of way under their control safe. A municipality “shall remove, cut, or trim or consent to the removing, cutting, or trimming of any tree, shrub, or vegetation in order to provide safety to users of the highway.” Wis. Stat. § 66.1037(1). Towns are also specifically held “responsible for the destruction of all noxious weeds on the town highways.” Wis. Stat. § 66.0407.

Furthermore, a municipality may be responsible for trimming trees that are not in the right of way. In Physicians Plus Ins. Corp. v. Midwest Mut. Ins., Wisconsin’s Supreme Court held that the property owner, the county and the local town could all be held liable for failing to clear vegetation from the right of way. In this case a tree, which was not in the right of way, had branched out over the right of way and obscured a stop sign. On the other hand, in Estridge v. City of Eau Claire, the city was immune from damages when a bicyclist was injured by a shrub overhanging a sidewalk.

In Physicians, the court focused on the fact that a stop sign at an intersection was obscured and found a duty to keep the signs clear of obstruction. In Estridge, the court held that there was no specific liability arising from the general duty to keep the right of way safe, and it would be unreasonably expensive and probably impossible to expect a municipality to always keep all branches cleared from all rights of way. While these cases may seem to conflict, or at least leave a grey area, if a municipality has notice that overgrown vegetation is creating a potentially unsafe condition in a right of way, it should take action to clear the vegetation.

The Physicians case notwithstanding, there is fairly strong municipal immunity from liability for failing to clear vegetation and mow shoulders based on public policy. As the Wisconsin Supreme Court held, “To require [municipalities] to do battle with roadside vegetation under penalty of liability for common law negligence would be to place upon them a burden they should not be made to bear.” Walker v. Bignell. (See also Estate of Wagoner v. City of Milwaukee.) Immunity is not, however, a certainty in any given situation. Municipalities should consider available funds and prioritize areas of concern, especially when safety is a factor, when deciding what vegetation to clear from the rights of way under their control.

A municipality may cut trees and clear other vegetation to keep a highway safe, and a private citizen may have a duty to trim a tree or other vegetation on their private property if it interferes with a right of way. However, no one except the municipality may cut, trim or in any way harm trees, shrubs, or hedges within the right of way without permission of the municipality if the tree is on public land. If the tree is on private land, but within the right of way, the owner may also trim, cut and remove the tree. Under most circumstances, the owner may also mow the grass in the right of way abutting his or her property, but is not required to do so.

If a tree falls from private property onto a public right of way, the property owner has a duty to remove the tree. This does not, however, alleviate a municipality’s duty to remove the tree from the public right of way. When a municipality removes a tree, what may it do with the downed tree? If the tree is growing on municipally-owned land, the municipality owns the tree. However, if the right of way is on private land, the landowner owns the tree. No matter who actually owns the tree, landowners often assume they own the tree, and may feel very strongly about any damage done to “their” trees. While there is no question that a municipality has a responsibility to maintain the right of way for the safety of the public, when that involves removing trees it is always a good idea to give the adjacent landowner notice prior to trimming or removing trees.

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Governor Signs Legislation to Protect Public Service Workers’ Families

As expected, Governor Doyle recently signed into law two bills that provide benefits to the families of firefighters, police officers and other public service workers who die in the line of duty. The first, Senate Bill 520, requires that municipalities pay health insurance premiums for the families of firefighters who die, or have died, in the line of duty.

“Families of firefighters who have lost their lives shouldn’t have to worry about whether or not they’re going to be able to pay their health care bills,” Governor Doyle said. “This bill ensures that these families are protected when their loved ones make the ultimate sacrifice.”

The second, Senate Bill 429, establishes that if a firefighter, police officer or other public service worker gets sick or dies from cancer, heart disease or a respiratory impairment, there is a presumption that person’s job duties caused the illness, as long as that person didn’t show any signs of the disease during his or her qualifying medical exam.

While this was a popular bill, it is also an unfunded mandate on local governments. Some small towns and villages will be hard pressed to fund the requirements.