Shall vs. May

In general in statutes, the word “shall” is mandatory, and the word “may” is permissive but not mandatory (but there are exceptions). That is, if you “shall” do something, that means you must do it the way the statute says; you have no options or discretion. If you “may” do something, it is an option, but there could be other options. There are some unique situations where the courts will find “shall” to be permissive, or find “may” to be more like “shall” than one might think, but they are rare. See Eby v. Kozarek, 153 Wis. 2d 75, 80-81, 450 N.W.2d 249 (1990).

As I’ve pointed out before in this blog, deadlines are one area of the law where there is very little discretion. When Mr. Sherard was found guilty in Milwaukee’s municipal court of a number of building code violations and fined roughly $10,000, he had 20 days to file an appeal. He missed the deadline. But he filed an appeal anyway. He argued that the “shall” appeal within 20 days found in Wis. Stat. § 800.14(1) was not meant to be a hard deadline, but an option. The circuit court did not buy the argument, and found “shall” to be mandatory. If you don’t file on time, you almost certainly lose no matter what the merits of your case may be. City of Milwaukee v. Sherard.

City Pier vs. Private Pier: City 1, Private Pier 0.

Equal Protection Argument Does not Fly Against City of Lake Geneva.

In Johnson v. City of Lake Geneva, the Johnsons were ordered by the City to reduce the length of their pier to 100 feet or less, as required by a City ordinance. Although the Johnson’s made a number of arguments, most failed because back in 1998, and again in 2007, they had signed stipulations agreeing to limit the length of their pier to 100 feet or, if the ordinance ever increased the length, to that new length limit. But interestingly, the City had created an exception for municipal piers, and indeed the City’s pier exceeded 100 feet. The Johnson argued that they must be treated similarly to the City, essentially that it was unfair for the City to exempt itself. However, the Court easily found that the City’s pier was for a public purpose, while the Johnson’s pier was for a private purpose, and thus the two were not “similarly situation” and no violation of equal protection occurred. Although on the surface this may seem unfair, in fact the “public purpose” of government actions often allows government to act in ways that a private party could not.

Ignore Your Rights and They’ll Go Away #147

People sometimes imagine the law is black and white; things are legal or illegal; apply a set of facts to a given circumstance and, with no human subjective-ness, out pops the result. Like a math equation, plug in the numbers and you get the one and only answer. 2 plus 2 equals 4. But one need only look at any number of U.S. and Wisconsin Supreme Court cases which get decided on a 5 to 4 basis, and it becomes obvious that the law, like most human endeavors, has many shades of grey.

But there is one area where the law is almost always applied in a fairly black and white fashion – deadlines. Vernon and Carolyn Borst learned this in circuit court, and again in their appeal of a decision by the City of New Richmond. See Borst v. City of New Richmond.

The City had issued a raze order on some commercial property owned by the Borsts. Although the appellate decision is sketchy with respect to the facts and the timeline of the events, the court’s decision is clear – if you don’t appeal on time, you lose your right to appeal.

If something is due by a certain date, and you don’t submit it to the proper place by the required date, you lose your case. This can seem harsh when a case is particularly sympathetic or meritorious, but ignoring deadlines in legal actions will usually result in losing your right to appeal.

Dealing with Common Winter Issues

I just read a great article in The Municipality magazine by Attorney Claire Silverman which discusses the major issues that municipalities face in winter (well, maybe not Miami). It’s available online at the League of Wisconsin Municipality’s website. Attorney Silverman is Legal Council for the League.

Each topic stands on its own and cites the appropriate statutes and case law, so this should serve as a good reference work if you need to deal with one of the following topics:

  • Removal of Snow and Ice from Public Ways
  • Salt Storage Requirements
  • Winter Parking; Snow Emergencies
  • Snowmobile Regulation
  • Utility Disconnections
  • Municipal Holiday Decorations

Follow the rules or you may lose! Proper Service is Fundamental.

In another case of follow the rules or you may lose no matter the merits of your case, the Halls filed a lawsuit against the Village of Ashwaubenon, apparently because they were unhappy with their property taxes. See: Hall v. Village of Ashwaubenon. They mailed a copy of the lawsuit to the clerk, and the Halls also personally gave a copy to a Village employee. To begin with, service by a party (the Halls in this case) is usually not permitted. Secondly, service must be on the clerk or the village president. It should be noted that they were acting without the benefit of an attorney.

Whatever the actual merits of their lawsuit, the circuit court dismissed their lawsuit for improper service. Serving the defendant in a lawsuit is a critical part of beginning a lawsuit, and without proper service, the suit will almost certainly be dismissed. Even if the Halls had the best case in the world, they lost at step one. They appealed, and the appeals court upheld the circuit court’s dismissal, saying “When a statute provides for service that confers jurisdiction over a party, there must be strict compliance with statutory service requirements even though the consequences for failure to do so may appear to be harsh.” Although it may appear harsh on the surface in some cases, if you are going to sue someone, letting them know is a fundamental aspect of our legal system – no secret trials, no secret verdicts. Defendants have a fundamental right to be made aware of the claims against them, and to be given a reasonable opportunity to respond.

Town’s Insurance Company Not Required to Defend Town

Oemig vs. Town of Lowell (not recommended for publication)

The Town of Lowell, in Dodge County undertook a road construction project. As is very typical, they apparently hired an engineering company, and a construction company, and the project was designed and constructed. The Oemigs, neighboring property owners, sued the Town, the engineering company, the construction company, and the construction company’s insurance company for various claims of damage to their property allegedly caused by the road project. (The first lesson here is that when someone wants to sue someone, it is often a scatter gun approach – sue everyone you can think of and see if anything sticks).

The Town had a “business owners” insurance policy with Rural Mutual Insurance. However, this insurance policy contained a “professional services” exclusion. Essentially, the gist of the court case was that if the Town “constructed” the roads, then the insurance company would defend them, but since the Oemigs’ allegations against the Town were based on the fact that the Town “negligently approved the design of the project,” the insurance company had no duty to defend the Town. Negligently construct the road = duty to defend. Negligently approve the design of the road = no duty to defend.

The circuit court found that the Oemigs’ claim against the Town was based on the “negligent design” not negligent construction. The appeals court affirmed. To be sure, the Oemigs were also making claims based on the actual construction of the project, but not, apparently, against the Town, only against the construction company and maybe the engineering company. Thus the narrow holding in this appeals case was that Rural Mutual Insurance does not have to defend the Town against allegations of negligent design of the project. It appears the litigation will continue, with the Town paying the bill for its defense.

Liquor License Renewal Appeal to Circuit Court – You Might Be Able to Fight City Hall After All

Nowell (d/b/a IC Willy’s) v. City of Wausau

The Wisconsin Court of Appeals, in a decision recommended for publication, has determined that if a liquor license is non-renewed by a municipality, and the license holder appeals the non-renewal in circuit court, the review is de novo, not certiorari review. While these Latin terms may not mean much to the average liquor license holder, if a license is non-renewed by a municipality and the license holder wants to appeal that decision to the circuit court, it may make a huge difference.

De novo is a Latin phrase meaning “from the beginning” or “anew.” In legal terms, a de novo review means that the circuit court will look at the case with fresh eyes – they will review the entire case, may accept new evidence, and will make a decision based on the evidence and facts presented in a civil trial.

On the other hand, a “certiorari” review is a fairly limited review, usually only of the record from the lower tribunal. In certiorari, there is a general presumption that the court will not overturn a local decision unless it is arbitrary and capricious. And a court will not substitute its judgment for the local decision maker’s judgment. In other words, in a certiorari review the court would look at what the local municipal decision makers decided and only overturn it if the decision was not based on the evidence, but was seemingly a willful and arbitrary decision, not a fair hearing. This is a fairly high hurdle, compared to a court looking at everything anew.

I’m sure that the old saying that “you can’t fight city hall” still has life in it, but this decision, at least in the case of a non-renewal of a liquor license, gives the license holder some additional opportunity to take his or her case to an impartial court.

Court Ruling on Liquor License Premises Descriptions – How General can the Premises of a Liquor License Description Be

In a unanimous decision in Wisconsin Dolls v. Town of Dell Prairie, the Wisconsin Supreme Court sided with Wisconsin Dolls LLC that a description of the “premises” for an alcohol license which states something along the lines of “all 8 acres of the resort” is sufficient. While the court was clear that in granting the initial license, the Town could have reviewed the description of the premises and possible sought clarification, under Wisconsin law, there is no requirement to be more specific than “all 8 acres of the resort.”

The circuit court had sided with the Town of Dell Prairie’s attempt reduce the premises to only the main bar building, and the appellate court had agreed, though on different grounds. The appellate court had held that the previous licenses had been void because of the vagueness of the description of the premises. But the Supreme Court reversed, stating that a description such as “all 8 acres” was sufficient, and the time for a municipality to question such a description is before granting the license in the first place, not at a subsequent renewal. Justice Prosser stated, “Towns may attach conditions to an alcohol beverages license, including limitations to the described premises, when the license is initially granted.” But once a license is granted, the rules for non-renewal are well defined by statute, and do not include a town’s desire to reduce the premises because they had not carefully reviewed the license when it was initially granted. Town’s do not have the authority to unilaterally modify the description of the premises. Although the holding and language in the case was specific to towns, the application of the holding should apply to villages and cities as well.

Open Records Law Decision Regarding the Costs of Redacting

In a unanimous decision in the case of the Milwaukee Journal Sentinal vs. the City of Milwaukee, the Wisconsin Supreme Court ruled that the City of Milwaukee cannot charge the costs of redacting information from records to a record requester. The Wisconsin Public Records Law, Wis. Stat. 19.35 et al, allows anyone to request government records, and in general most government records need to be released to the requester. There are some important exceptions, and occasionally a document may contain some information that would need to be released, and some information that would need to be kept confidential. In such a case, the municipality must release the document after redacting the confidential information. The statute allows municipalities to charge the requestor for certain costs.

In what appears to be a fairly narrow decision, the Supreme Court said that the cost to the municipality for redacting information is not chargeable back to the requester. Of course, if the requestor cannot be charged, and the municipality must release the document, that leaves the municipality – i.e. the taxpayers – to foot the bill. This was pointed out by several of the Justices, who nevertheless decided that the plain language of the statute does not permit charging for redaction. Although the holding appears to be fairly narrow, the ramifications may be broader, in that municipalities must now be very careful to only charge what the statute plainly permits. However, that language, while supposedly “plain” still leaves room for interpretation.

The key language is: “An authority may impose a fee upon the requester of a copy of a record which may not exceed the actual, necessary and direct cost of reproduction and transcription of the record, unless a fee is otherwise specifically established or authorized to be established by law.” However there have been, and will continue to be, arguments over just what is included in the “…actual, necessary and direct cost of reprodoction…”

Here’s a link to a Milwaukee Journal Sentinal article on the case.

Town and County Ordinances – Conflict or Compliment?

In an interesting conflict of laws decision, Adams Outdoor Advertising v. County of Dane, the appeals court held that a Dane County Zoning Ordinance’s billboard provisions are not preempted by a town billboard ordinance enacted pursuant to Wisconsin Statute § 60.23(29), and both are valid and enforceable.

Adams applied for and received permits to construct a billboard only from the Town and the Department of Transportation. Adams subsequently constructed the billboard. Although it is not clear from the facts given in the court’s opinion, at some point apparently Dane County became aware that Adams had failed to obtain a County billboard permit. Adams sought declaratory relief in circuit court – which was granted. The circuit court held that the Town ordinance preempted the county ordinance. The appeals court reversed, holding that the Town and County ordinances did not conflict but rather complimented each other.

I am often asked whether state law automatically trumps a local ordinance, or whether county ordinances trump town ordinances. There is no one size fits all answer, and the answer is often far from back and white. Preemption of one statute or ordinance by another is a rather complicated process, and there is a great deal of case law on it. Each situation has to be analyzed based on the exact language of the statutes and ordinances in question.