Linda Sharretts Recognized

Linda Sharretts, Bakke Norman’s office administrator, has been honored with the Unsung Heroes Lifetime Achievement award among Wisconsin law firms. The award recognizes her dedication to the legal profession and her achievements in the community.

Linda was nominated for her extensive efforts to create and maintain the St. Croix Valley Bar Association’s free legal clinic and for her lifetime of dedicated service to the lawyers at Bakke Norman. The editors of the Wisconsin Law Journal selected her from more than 50 nominees.

The legal clinic is held on the second Monday of every month at the St. Croix County Government Center in Hudson, where individuals can talk to an attorney without charge. Since the legal clinic opened in 2005, Linda has recruited local attorneys to volunteer at the clinic and has attended almost every monthly session over the past 7 years. Linda credits Attorney Maureen Wegleitner for being the catalyst to getting the legal clinic up and running and has great respect for the many local attorneys that take time to provide legal help without charge every month. Linda says, “It is personally very fulfilling to me to see the relief on the faces of the individuals seeking advice when they get an answer to a legal problem they are facing.” Linda says that it is necessary to have five or six attorneys present each month to cover a wide variety of legal practice areas at each session, including employment law, family law, landlord/tenant, small claims, criminal/traffic, estate planning, elder law, probate, real estate, business law, and debtor/creditor.

Linda plans to retire from Bakke Norman in 2012, but says she will continue to work with the legal clinic after retirement. Bakke Norman’s senior attorney, Gary Bakke, said that it is a true indication of Linda’s dedication to help those in need.

Technology Issues for Municipalities

The November 2011 edition of the Municipal Law Alert is now available online. This edition focuses on best practices for municipal email and other technology concerns. Topics include email and the open records law; electronic record retention; and privacy on municipal computers. View the newsletter by clicking here. Archives of the Municipal Law Alert, including the ability to key word search, are also available.

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Municipal Email: Best Practices Q&A

Municipal Law Alert, November 2011

Introduction

The Open Records law is found in Wisconsin Statutes Chapter 19, which is titled “General Duties of Public Officials.” Open government is the declared policy of Wisconsin, and the statute specifically states: “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.”

Thus, there is a presumption that citizens are entitled to government records, with some important exceptions.

What is a “record”?

Wisconsin Statute § 19.32(2) states:

“Record” means any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority….

Additionally, for something to be a government “record”, it must in some way relate to the transaction of government business. See Schill v. Wisconsin Rapids School District, 2010 WI 86. So, it is the content, not the medium or format, that determines whether a document is a “record” or not.

What is NOT a record?

Wisconsin Statute § 19.32(2) states that “record” does not include:

  • drafts, notes, preliminary computations and like materials prepared for the originator’s personal use or prepared by the originator in the name of a person for whom the originator is working; [this exception is construed very narrowly]
  • materials which are purely the personal property of the custodian and have no relation to his or her office;
  • materials to which access is limited by copyright, patent or bequest; or
  • published materials in the possession of an authority other than a public library which are available for sale, or which are available for inspection at a public library.

Also, a record that does not exist is not a record – that is, a municipality does not have to create documents in response to an open records request.

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

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…”

Tim O’Brien Featured in Wisconsin Law Journal

Tim O’Brien is known in northwestern Wisconsin as a zealous trial attorney. New Richmond has recognized him as Citizen of the Year. But have you met Tim O’Brien, stand up comedian? This hidden talent was just one fact revealed when the Wisconsin Law Journal interviewed Tim O’Brien for its “Asked and Answered” feature. Read the article by clicking here.

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Tamara Skoglund Joins Firm

We are pleased to announce that Tamara Skoglund of Hudson has joined Bakke Norman’s tax and business law team. Her areas of expertise include tax law, corporate/business law and civil litigation. In addition to being an attorney, Tamara is also a certified public accountant. Click here to read more.

For more information on Tamara’s background and experience, click here.

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Public Records Request Once Removed

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.

Future of the Construction Industry in Western Wisconsin – November 8, 2011

Breakfast with Bakke NormanThe Future of the Construction Industry in Western Wisconsin was the topic of “Breakfast with Bakke Norman”, a quarterly seminar series offered by Bakke Norman Law Office, on Tuesday, November 8, 2011, at WITC in New Richmond. The panelists were:

  • Brad Boycks, Chief Lobbyist Director of Government and Political Affairs for the Wisconsin Builders Association
  • Mary Bauer, Compliance Assistance Specialist at OSHA
  • Toby Madden, Regional Economist at the Federal Reserve Bank of Minneapolis
  • Julie Dodge, Senior Vice President at First National Community Bank

The panelists shared their diverse views of trends in the construction industry. The topics discussed ranged from ideas for obtaining financing, resources available for construction businesses to improve safety to predictions for future growth areas and optimism for the construction industry.

Tom Schumacher greeted the attendees and introduced the speakers.

Other videos from, “Future of the Construction Industry in Western Wisconsin” series

For more information or to register for the next Breakfast with Bakke Norman, please email info@bakkenorman.com. To view other Breakfast with Bakke Norman installments, visit our You Tube channel at: http://www.youtube.com/bakkenorman.

Terry Dunst Chairs State Bar Solo and Small Firm Conference

Terry Dunst recently completed his term as chair of the Wisconsin State Bar Solo and Small Firm Conference. Held at the Kalahari Resort in the Wisconsin Dells October 27-29, the conference featured 32 educational sessions in 4 different tracks. Distinguishing it from other State Bar conferences, the Solo and Small Firm Conference not only gives attorneys updates on substantive areas of law, but also training in areas like practice management and technology. A new feature this year was a mobile app that allowed participants to download session materials and access the conference schedule on their mobile devices. According to all reports, the conference was a huge success with over 300 attendees.

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Presumption of Correctness in Interpreting Local Ordinance

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.”