Navigating Constitutional Issues in Municipal Enforcement Actions

2015 MUNICIPAL ATTORNEYS INSTITUTE

LEAGUE OF WISCONSIN MUNICIPALITIES

“Navigating Constitutional Issues in Municipal Enforcement Actions”

June 18, 2015

9:25 a.m.

Douglas J. Hoffer

Assistant City Attorney

City of Eau Claire

203 S. Farwell Street

Eau Claire, WI 54702

(715) 839-6006

[email protected]

June 17-19

Municipal Attorneys Institute

League of Wisconsin Municipalities

Lake Lawn Resort

Delevan, Wisconsin

mailto:[email protected]

Hoffer – Navigating Constitutional Issues in Municipal Enforcement Actions

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I. Preliminary Issues

a. Determining validity of ordinances is two part inquiry:

i. Did local government have power to enact the ordinance?

ii. Is the ordinance consistent with the state and federal constitution,

other state laws, other federal laws, and other local ordinances?

b. Municipal Courts have authority to examine constitutionality of

ordinances

“[A]ll courts in which constitutional questions are raised should decide

them.

City of Milwaukee v. Wroten, 160 Wis. 2d 207, 217, 466 N.W.2d 861, 864

(1991)

c. When a case may be resolved on non-constitutional grounds courts do not

need to reach constitutional questions.

“When a case may be resolved on non-constitutional grounds, we need not

reach constitutional questions.”

Waters ex rel. Skow v. Pertzborn, 2001 WI 62, ¶ 14, 243 Wis. 2d 703, 714,

627 N.W.2d 497, 502

d. Courts may raise the issue of the constitutionality of an ordinance sua

sponte.

“Courts of course should be reluctant to consider the constitutionality of

statutes unless required by the case. In the instant cases, however, there is

adequate justification for the circuit court's raising the constitutionality of

sec. 971.20 sua sponte. This court has said that even where the parties

waive the issue, a court ‘should raise the (constitutional) question itself

where it appears necessary to the proper disposition of a case.’”

State v. Holmes, 106 Wis. 2d 31, 40, 315 N.W.2d 703, 707-08 (1982)

e. Constitutional challenges to repealed legislation are generally considered

moot.

“In general, constitutional challenges to repealed legislation are

considered moot.”

Town of Rhine v. Bizzell, 2008 WI 76, 311 Wis. 2d 1, 39, 751 N.W.2d 780,

799


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f. Courts may consider moot issues, especially if similar ordinances exist in

other communities.

“However, unlike state or federal legislation, municipal ordinance sections

like the one at issue here may still exist in other municipalities within the

state. At times, we may consider a ‘moot issue’ if it is of ‘great public

importance or arises frequently enough to warrant a definitive decision to

guide the circuit courts.’”

Town of Rhine v. Bizzell, 2008 WI 76, 311 Wis. 2d 1, 39, 751 N.W.2d 780,

799

g. Wisconsin’s Notice of Claim requirement cannot bar Federal

constitutional challenges under § 1983

“Federal constitutional challenges brought under § 1983 cannot be barred

by Wisconsin's notice of claim requirement.”

Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis. 2d 13, 19, 580 N.W.2d

156, 159 (1998).

h. Attorney General must receive notice and opportunity to be heard if an

ordinance is alleged to be unconstitutional

“…If a statute, ordinance or franchise is alleged to be unconstitutional, the

attorney general shall also be served with a copy of the proceeding and be

entitled to be heard…”

Wis. Stat. Ann. § 806.04(11)

II. Burdens & Presumptions

a. Defendants raising constitutional challenges carry a heavy burden

i. Legislative enactments are presumed to be constitutional

“Legislative enactments are presumed constitutional, and this court

has stated it ‘will sustain a statute against attack if there is any

reasonable basis for the exercise of legislative power.’”

State v. McManus, 152 Wis. 2d 113, 129, 447 N.W.2d 654, 660

(1989)

ii. Ordinances are presumed to be constitutional


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“[S]tatutes are presumed constitutional; the challenger must prove

the unconstitutionality of a statute beyond a reasonable doubt.

This is true of ordinances as well.”

Davis v. City of Elkhorn, 132 Wis. 2d 394, 400, 393 N.W.2d 95, 98

(Ct. App. 1986)

iii. Party raising constitutional challenge must demonstrate the law is

unconstitutional beyond a reasonable doubt.

“The party bringing the challenge must show the statute to be

unconstitutional beyond a reasonable doubt.”


(1989)

“A party challenging a statute does not overcome the presumption

of constitutionality by establishing that a statute's constitutionality

is doubtful or that a statute is probably unconstitutional.”

In re Commitment of Alger, 2015 WI 3, ¶ 22, 360 Wis. 2d 193,

208, 858 N.W.2d 346, 353

iv. Courts cannot reweigh the facts found by the legislature.

“The court cannot reweigh the facts found by the legislature. If the

court can conceive any facts on which the legislation could

reasonably be based, it must hold the legislation constitutional.”


(1989)

v. Doubts regarding constitutionality of legislative acts must be

resolved in favor of constitutionality

“Every presumption must be indulged to sustain the law if at all

possible and, wherever doubt exists as to a legislative enactment's

constitutionality, it must be resolved in favor of constitutionality.”

State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32,

46, 205 N.W.2d 784, 792 (1973); see also State v. McManus, 152

Wis. 2d 113, 129, 447 N.W.2d 654, 660 (1989)

b. Burden shifts in 1st Amendment cases

“Typically, the party challenging the statute bears that burden and must

prove beyond a reasonable doubt that the statute is unconstitutional.


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However, the burden of proof shifts to the proponent of the statute when it

has the effect of infringing upon first amendment rights.”

State v. Thiel, 183 Wis. 2d 505, 522-23, 515 N.W.2d 847, 854 (1994)

i. It is the initial duty of the person who claims 1st Amendment

protection to demonstrate that the regulated conduct is speech or its

equivalent.

“It is, nevertheless, the initial duty of the person who claims the

protection of the First Amendment to demonstrate that the

[regulated] conduct is speech or its equivalent, to which First

Amendment protections apply.”

State v. Crute, 2015 WI App 15, ¶ 11, 360 Wis. 2d 429, 439, 860

N.W.2d 284, 289

c. Unconstitutional ordinances are void from inception.

An unconstitutional act of the Legislature is not a law; it confers no rights;

it imposes no penalties; it affords no protection, and is not operative; and

in legal contemplation it has no existence.

State ex rel. Kleist v. Donald, 164 Wis. 545, 160 N.W. 1067, 1070 (1917);

See also State v. Huebner, 2000 WI 59, 235 Wis. 2d 486, 514, 611

N.W.2d 727, 740.

III. Construction of legislative enactments

a. It is the duty of courts to construe legislative enactments to eliminate

constitutional infirmities

“The cardinal rule of statutory construction is to preserve a statute and to

find it constitutional if it is at all possible to do so. The duty of this court,

if possible, is to construe the statute to find it in harmony with accepted

constitutional principles.”

Redevelopment Auth. of City of Milwaukee v. Uptown Arts & Educ., Inc.,

229 Wis. 2d 458, 463, 599 N.W.2d 655, 657 (Ct. App. 1999)

“[C]ourts must apply a limiting construction to a statute, if available, that

will eliminate the statute's overreach, while still ‘maintain[ing] the

legislation's constitutional integrity.’”


156, 161 (1998)


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b. Courts examine a variety of factors in determining whether to engage in

construction

i. Courts do not apply a limiting construction where doing so would

contradict the express intent of an ordinance.

“We cannot apply a limiting construction which contravenes the

expressed intent of the Ordinance.”

Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis. 2d 13, 26, 580

N.W.2d 156, 162 (1998)

ii. Construction does not involve creating new legislation.

“This court can only construe. It cannot legislate. Words should

not be read into or read out of a plain statute. To adopt the

construction asked would be to make a new statute. This we cannot

do.”

Rogers-Ruger Co. v. Murray, 115 Wis. 267, 91 N.W. 657, 658-59

(1902)

IV. Severability

a. Severability involves keeping the remaining provisions of a legislative act

in force if any portion of the legislative act is declared void or

unconstitutional.

b. Does either your community’s code of ordinances or the specific

ordinance in question provide for severability like Wisconsin statutes?

“The provisions of the statutes are severable. The provisions of any

session law are severable. If any provision of the statutes or of a session

law is invalid, or if the application of either to any person or circumstance

is invalid, such invalidity shall not affect other provisions or applications

which can be given effect without the invalid provision or application.”

Wis. Stat. § 990.001(11); see also Nankin v. Vill. of Shorewood, 2001 WI

92, ¶ 48, 245 Wis. 2d 86, 116, 630 N.W.2d 141, 155

c. Severability requires examination of legislative intent. Presumption is in

favor of severability.

“Whether an unconstitutional provision is severable from the remainder of

the statute in which it appears is largely a question of legislative intent, but

the presumption is in favor of severability. Unless it is evident that the

Legislature would not have enacted those provisions which are within its


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power, independently of that which is not, the invalid part may be dropped

if what is left is fully operative as a law.”

Nankin v. Vill. of Shorewood, 2001 WI 92, ¶ 49, 245 Wis. 2d 86, 116, 630

N.W.2d 141, 155

d. Severability clauses are entitled to great weight in determining legislative

intent.

“[T]he existence of a severability clause is entitled to great weight in

deciding whether the legislative body intended that the portions not

invalidated remain as an effective ordinance.”

Sauk Cnty. v. Gumz, 2003 WI App 165, ¶ 78, 266 Wis. 2d 758, 826-27,

669 N.W.2d 509, 544

“The Wisconsin Supreme ‘[C]ourt has held, in accordance with the

general rule elsewhere, that the existence of a severability clause, while

not controlling, is entitled to great weight in determining whether valid

portions of a statute or ordinance can stand separate from any invalid

portion.’”

Green Valley Inv., LLC v. Cnty. of Winnebago, 790 F. Supp. 2d 947, 963

(E.D. Wis. 2011), as amended (July 15, 2011) citing City of Madison v.

Nickel, 66 Wis. 2d 71, 79-80, 223 N.W.2d 865, 869-70 (1974).

e. Remaining (unsevered) ordinance must be a valid enactment standing

alone.

“However, the remaining ordinance must be a valid enactment

independent of the invalid severed portions.”

Sauk Cnty. v. Gumz, 2003 WI App 165, ¶ 78, 266 Wis. 2d 758, 827, 669

N.W.2d 509, 544

V. Due Process

a. No ordinance may deprive a person of life, liberty, or property without due

process of law.

b. Due process clause of Wisconsin Constitution may be interpreted, in very

limited circumstances, to provide greater protection than U.S. Constitution

“Even though the Due Process Clause of Article I, Section 8 of the

Wisconsin Constitution uses language that is somewhat similar, but not

identical, to the Due Process Clause of the Fourteenth Amendment to the


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United States Constitution, we retain the right to interpret our constitution

to provide greater protections than its federal counterpart.”

State v. Dubose, 2005 WI 126, ¶ 41, 285 Wis. 2d 143, 173, 699 N.W.2d

582, 597.

“However, post-Dubose, we have held that the decision did not create a

precedential sea change with respect to the recognition of a broader due

process protection under the Wisconsin Constitution than under the United

States Constitution.”

State v. Luedtke, 2015 WI 42, ¶ 49 (decided April 24, 2015)

c. Procedural due process

i. 3 elements to sustain a procedural due process claim

1. There was a life, liberty, or property right

2. State action deprived plaintiff of the right

3. There was a failure to provide constitutionally mandated

procedures

Bennett-Beil v. Vill. of Hartland, 958 F. Supp. 407, 409 (E.D. Wis.

1997)

“Like equal protection and substantive due process rights, procedural due

process rights emanate from the Fourteenth Amendment.”

Thorp v. Town of Lebanon, 2000 WI 60, ¶ 53, 235 Wis. 2d 610, 642, 612

N.W.2d 59, 76. See also Wis. Const. art. I, § 8.

“The procedural due process clause protects individuals from

governmental ‘denial of fundamental procedural fairness.’ ‘[A] plaintiff

must show a deprivation by state action of a constitutionally protected

interest in ‘life, liberty, or property’ without due process of law.’ The

requirement of procedural due process is met if a state provides adequate

post-deprivation remedies.

Thorp v. Town of Lebanon, 2000 WI 60, ¶ 53, 235 Wis. 2d 610, 642, 612

N.W.2d 59, 76

d. Substantive due process

“Substantive due process forbids a government from exercising ‘power

without any reasonable justification in the service of a legitimate

governmental objective.’ ”


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Town of Rhine v. Bizzell, 2008 WI 76, ¶ 28, 311 Wis. 2d 1, 22, 751

N.W.2d 780, 791

“Due process requires that the means chosen by the legislature bear a

reasonable and rational relationship to the purpose or object of the

enactment; if it does, and the legislative purpose is a proper one, the

exercise of the police power is valid.”

State v. McManus, 152 Wis. 2d 113, 130, 447 N.W.2d 654, 660 (1989).

i. Two-tier scrutiny

1. Non-fundamental rights (ex. Economic rights) – there must

be a rational relation between the legislative act and a

legitimate state objective.

2. Fundamental right impaired by legislative act – stricter

scrutiny in two respects

a. The state’s objective must be “compelling” not

merely “legitimate.” And

b. The relation between that objective and the means

must be very close so that the means can be said to

be “necessary” to achieve the end.

“To determine the merits of an equal protection claim or a

substantive due process claim, we must first determine which level

of judicial scrutiny applies. If the challenged legislation neither

implicates a fundamental right nor discriminates against a suspect

class, we apply rational basis review rather than strict scrutiny to

the legislation.”


218, 858 N.W.2d 346, 358-59

ii. Fundamental rights

“Fundamental rights are those which are either explicitly or

implicitly based in the Constitution. Rights that have been

determined fundamental are procreation, voting, access to the

courts, freedom of travel, and the rights guaranteed by the First

Amendment of the Constitution.”

State v. Martin, 191 Wis. 2d 646, 652, 530 N.W.2d 420, 422-23

(Ct. App. 1995)


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iii. Facial substantive due process

“[F]acial substantive due process challenges are rarely successful.”


N.W.2d 780, 793

iv. Zoning

“The United States Supreme Court has recognized a landowner's

right to substantive due process in zoning cases. The Supreme

Court has stated, ‘a zoning ordinance is unconstitutional when its

‘provisions are clearly arbitrary and unreasonable having no

substantial relation to the public health, safety, morals or general

welfare.’”


N.W.2d 780, 791

“The seminal zoning case, which involved a facial substantive due

process challenge, is Euclid”.


N.W.2d 780, 793

“[T]he city has a rational basis for its decision to ban the keeping

of pigeons in residential areas, and GCCC's substantive due

process claim is at an end.”

Greater Chicago Combine & Ctr., Inc. v. City of Chicago, 431

F.3d 1065, 1072 (7th Cir. 2005) (also noting that raising pigeons is

not a “fundamental” right).

VI. Equal Protection

a. Equal protection clause prohibits administering an ordinance so as to treat

similarly situated people differently

b. Levels of review

“Unless a challenge to an ordinance affects a person's fundamental right or

creates a classification based on a suspect class, this court uses the

“rational basis test” in determining whether the ordinance withstands the

equal protection challenge.”

City of Milwaukee v. Hampton, 204 Wis. 2d 49, 59, 553 N.W.2d 855, 859

(Ct. App. 1996)


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i. Rational basis test (primarily economic issues)

“Under the ‘rational basis test,’ we must uphold a legislative

classification if there exists any reasonable basis to justify that

classification. To decide if there is any reasonable basis, the court

is obligated to find or construct, if possible, a rationale that might

have influenced the legislature and that reasonably upholds

legislative determinations.”

City of Milwaukee v. Hampton, 204 Wis. 2d 49, 59, 553 N.W.2d

855, 859 (Ct. App. 1996)

ii. Strict scrutiny (fundamental rights or suspect class)

“Where a ‘fundamental right’ or ‘suspect class' is involved, the

challenged statute must pass strict scrutiny.”

Szarzynski v. YMCA, Camp Minikani, 184 Wis. 2d 875, 886, 517

N.W.2d 135, 139 (1994).

“To determine the merits of an equal protection claim or a

substantive due process claim, we must first determine which level

of judicial scrutiny applies. If the challenged legislation neither

implicates a fundamental right nor discriminates against a suspect

class, we apply rational basis review rather than strict scrutiny to

the legislation.”


218, 858 N.W.2d 346, 358-59

iii. Fundamental rights

“Fundamental rights are those which are either explicitly or

implicitly based in the Constitution. Rights that have been

determined fundamental are procreation, voting, access to the

courts, freedom of travel, and the rights guaranteed by the First

Amendment of the Constitution.”

State v. Martin, 191 Wis. 2d 646, 652, 530 N.W.2d 420, 422-23

(Ct. App. 1995)

iv. Suspect class

“When the courts speak of a ‘suspect’ class, they look to

“traditional indicia of suspectness.” Traditional indicia are found

when there is a history of such purposeful unequal treatment,


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political powerlessness or imposition of special disabilities such

that the courts command extraordinary protection from the

majoritarian political process. Persons generally are placed in these

suspect classes by accident of birth. Examples of suspect classes

are race, alienage and national origin. Another example is where a

statute classifies by sex.”

State v. Martin, 191 Wis. 2d 646, 652, 530 N.W.2d 420, 423 (Ct.

App. 1995)

c. Classification

i. Equal protection requires the existence of reasonable and practical

grounds for classification drawn by legislature

“Equal protection similarly requires that there exist reasonable and

practical grounds for the classifications drawn by the legislature.”


(1989).

“The fact a statutory classification results in some inequity,

however, does not provide sufficient grounds for invalidating a

legislative enactment.”


(1989).

ii. Party challenging classification must prove abuse of discretion

beyond a reasonable doubt.

“Therefore, the party challenging a statutory classification bears

the burden of proving abuse of legislative discretion beyond a

reasonable doubt.”

Szarzynski v. YMCA, Camp Minikani, 184 Wis. 2d 875, 887, 517

N.W.2d 135, 139 (1994).

d. Selective Prosecution.

i. Discrimination must be intentional, systematic, and arbitrary

“Nevertheless, evidence that a municipality has enforced an

ordinance in one instance and not in others would not in itself

establish a violation of the equal protection clause. There must be a

showing of an intentional, systematic and arbitrary

discrimination.”


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Vill. of Menomonee Falls v. Michelson, 104 Wis. 2d 137, 145, 311

N.W.2d 658, 662 (Ct. App. 1981)

ii. A discriminatory purpose is not presumed even when unequal

application of law is present.

“The unlawful administration by state officers of a state statute fair

on its face, resulting in its unequal application to those who are

entitled to be treated alike, is not a denial of equal protection

unless there is shown to be present in it an element of intentional

or purposeful discrimination. But a discriminatory purpose is not

presumed.”

State ex rel. Cities Serv. Oil Co. v. Bd. of Appeals, 21 Wis. 2d 516,

544, 124 N.W.2d 809, 823 (1963)

iii. Proof of selective enforcement does not necessarily establish a

constitutional violation

“Even if there had been evidence that the city itself had enforced

the ordinance in one instance and not in others, this would not in

itself establish a violation of the equal-protection-of-the-laws

clause of the Fourteenth amendment.”

State ex rel. Cities Serv. Oil Co. v. Bd. of Appeals, 21 Wis. 2d 516,

544, 124 N.W.2d 809, 823 (1963)

iv. Justifications for selective prosecution

1. “Selective enforcement may be justified when the meaning

or constitutionality of the law is in doubt and a test case is

needed to clarify the law or to establish its validity.”

Vill. of Menomonee Falls v. Michelson, 104 Wis. 2d 137,

145, 311 N.W.2d 658, 662 (Ct. App. 1981)

2. “Selective enforcement may also be justified when a

striking example or a few examples are sought in order to

deter other violators, as part of a bona fide rational pattern

of general enforcement, in the expectation that general

compliance will follow and that further prosecutions will be

unnecessary.”

Vill. of Menomonee Falls v. Michelson, 104 Wis. 2d 137,

145-46, 311 N.W.2d 658, 662-63 (Ct. App. 1981)


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VII. Overbreadth

a. Legislative acts are overbroad when sanctions may be applied to protected

conduct.

“A statute is overbroad when its language, given its normal meaning, is so

sweeping that its sanctions may be applied to constitutionally protected

conduct which the state is not permitted to regulate.”

Brandmiller v. Arreola, 199 Wis. 2d 528, 546, 544 N.W.2d 894, 901

(1996); See also City of Milwaukee v. Wilson, 96 Wis.2d 11, 19, 291

N.W.2d 452 (1980).

b. Two limitations to overbreadth doctrine

“Courts, in consequence, have established two specific limitations to

applying the overbreadth doctrine.”


156, 165 (1998) (Steinmetz, J., dissenting)

i. Facial challenges will not succeed when limiting

construction is available.

“First, a facial challenge to an ordinance will not succeed

when a limiting construction is available to maintain the

legislation’s constitutional integrity.”

Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis. 2d 13,

34, 580 N.W.2d 156, 165 (1998).

“Facial challenges to a statute, such as the one Thiel makes

here, do not succeed when a limiting construction is

available to maintain the legislation's constitutional

integrity.”

State v. Thiel, 183 Wis. 2d 505, 521, 515 N.W.2d 847, 853

(1994)

ii. Overbreadth must be real and substantial – and overbreadth

docrine must only be used as a last resort.

“The overbreadth of the statute must be real and

substantial”

City of Milwaukee v. Wroten, 160 Wis. 2d 207, 226, 466

N.W.2d 861, 868 (1991)


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“[I]n asserting an overbreadth challenge an individual may

hypothesize situations in which a statute or ordinance

would unconstitutionally intrude upon the first amendment

rights of third parties.... However ... the court will not deem

a statute or ordinance invalid because in some conceivable,

but limited, circumstances the regulation might be

improperly applied.”

City of Milwaukee v. Wroten, 160 Wis. 2d 207, 227, 466

N.W.2d 861, 868 (1991); see also Milwaukee v. K.F., 145

Wis.2d 24, 40, 426 N.W.2d 329 (1988).

“However, the court must be cognizant of the fact that

application of the overbreadth doctrine is ‘strong

medicine,’ to be used only where the alleged overbreadth of

the statute or ordinance is not only real, but substantial, and

‘then ‘only as a last resort.’”

Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis. 2d 13,

23, 580 N.W.2d 156, 161 (1998).

c. Overbroad legislation “chills” constitutionally protected conduct.

“The essential vice of an overbroad law is that by sweeping protected

activity within its reach it deters citizens from exercising their protected

constitutional freedoms, the so-called ‘chilling effect.’ ”

Brandmiller v. Arreola, 199 Wis. 2d 528, 546, 544 N.W.2d 894, 901-02

(1996)

d. Court may not construe an unambiguously overbroad ordinance

“While it is our obligation to so construe the ordinance as to preserve its

constitutionality, we cannot in this case do so. The ordinance is

unambiguous.”

City of Milwaukee v. Wroten, 160 Wis. 2d 207, 233-34, 466 N.W.2d 861,

871 (1991).

VIII. Vagueness

a. Two part analysis for determining whether legislative enactment is void

for vagueness:

i. Must be sufficiently definite to give fair notice of required or

prohibited conduct.

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ii. Must provide standards for those who enforce law and adjudicate

guilt.

“This court has applied a two part analysis for determining whether a

statute is void for vagueness: first, the statute must be sufficiently definite

to give persons of ordinary intelligence who seek to avoid its penalties fair

notice of the conduct required or prohibited; and second, the statute must

provide standards for those who enforce the laws and adjudicate guilt.”

State v. McManus, 152 Wis. 2d 113, 135, 447 N.W.2d 654, 662 (1989)

b. A vague ordinance either fails to provide notice of prohibited conduct or

allows arbitrary enforcement.

“A vague statute [is one that] through the use of language ... is so vague as

to allow the inclusion of protected speech in the prohibition or to leave the

individual with no clear guidance as to the nature of the acts which are

subject to punishment.”

City of Madison v. Baumann, 162 Wis. 2d 660, 674, 470 N.W.2d 296, 301

(1991).

“A vague statute [is one that] through the use of language ... is so vague as

to allow the inclusion of protected speech in the prohibition or to leave the

individual with no clear guidance as to the nature of the acts which are

subject to punishment.”


(1991).

“The void for vagueness doctrine ‘... incorporates the notions of fair notice

or warning.... [i]t requires legislatures to set reasonably clear guidelines

for law enforcement officials and triers of fact in order to prevent

‘arbitrary and discriminatory enforcement.’ ”


(1991)

IX. Zoning ordinances

a. Communities have broad authority to enact zoning ordinances

“Zoning ordinances and land use regulations have a useful, valid purpose,

and the government has broad authority to enact such classifications for

the purpose of promoting health, safety, morals or the general welfare of

the community.”


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N.W.2d 780, 786

b. Zoning ordinances are presumed valid and constitutional

“A comprehensive zoning ordinance, enacted pursuant to Wis. Stat. §

62.23, is presumed valid and must be liberally construed in favor of the

municipality.”


N.W.2d 780, 787

“The role of courts in zoning matters is limited because zoning is a

legislative function.”


N.W.2d 780, 790; See also Buhler v. Racine County, 33 Wis.2d 137, 146–

47, 146 N.W.2d 403 (1966).

c. A properly enacted zoning ordinance must satisfy constitutional

requirements

“Nonetheless, a properly enacted ordinance must satisfy constitutional

requirements.”


N.W.2d 780, 790

d. Constitutional challenges to zoning ordinances may arise in various

contexts

“Constitutional challenges may arise, for example, under the takings, due

process, or equal protection clauses of the state and federal constitutions.”


N.W.2d 780, 790

e. A substantive due process challenge to a zoning ordinance must

demonstrate that the ordinance is clearly arbitrary and has no substantial

relation to the public health, safety, morals, or general welfard.

“While the line between permissible and impermissible zoning may not

always be readily ascertainable, the requisite standard that must be applied

for a substantive due process challenge is clear: we must determine

whether the ordinance is clearly arbitrary and unreasonable in the

restricted sense that it has no substantial relation to the public health,

safety, morals or general welfare.”

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N.W.2d 780, 793-94

f. Notice of excessive zoning restriction does not preclude constitutional

challenge to the ordinance.

“While the landowner who chooses to purchase land in the B–2 District

has notice of the excessive restriction in the B–2 District, this does not, as

we see here, preclude a constitutional challenge to the ordinance.”


N.W.2d 780, 801

X. Regulatory Takings

a. Distinguishing between permissible land use “regulation” and “taking”

which may implicate the 5th

Amendment:

“[T]he Fifth Amendment is violated when land-use regulation ‘does not

substantially advance legitimate state interests or denies an owner

economically viable use of his land.’”

Zealy v. City of Waukesha, 201 Wis. 2d 365, 374, 548 N.W.2d 528, 531

(1996)

b. Taking occurs when zoning ordinance precludes land from being used for

any reasonable purpose.

“[W]hen zoning classifications restrict the enjoyment of property to such

an extent that it cannot be used for any reasonable purpose, a taking

without due process occurs.”

State ex rel. Nagawicka Island Corp. v. City of Delafield, 117 Wis. 2d 23,

27, 343 N.W.2d 816, 818 (Ct. App. 1983); see also Lucas, 505 U.S. at

1015, 112 S.Ct. at 2893 (regulatory taking occurs when regulation “denies

all economically beneficial or productive use of land”); Dolan v. City of

Tigard, 512 U.S. 374, 114 S.Ct. 2309, 2316, (1994) (regulatory taking

occurs if it denies an owner “economically viable use of his land”)

(quoting Agins, 447 U.S. at 260, 100 S.Ct. at 2141); Zinn v. State, 112

Wis.2d 417, 424, 334 N.W.2d 67 (1983) (regulatory taking occurs “when

the government restriction placed on the property ‘practically or

substantially renders the property useless for all reasonable purposes' ”)

(quoted sources omitted); Reel Enters. v. City of La Crosse, 146 Wis.2d

662, 674, 431 N.W.2d 743 (Ct.App.1988), review denied, 147 Wis.2d 887,

436 N.W.2d 29 (1988) (regulatory taking occurs if it “deprives the owner

of all, or practically all, of the use”).


19

“When the power to regulate by zoning is exercised in such a manner and

to such an extent that the property owners are deprived of all practical

value and are left with only the burden of paying taxes on it, the useful

value of that property has been “taken” from its owners without due

process of law.”


27, 343 N.W.2d 816, 818-19 (Ct. App. 1983)

c. Distinction between reasonable restrictions and a taking without

compensation is a matter of degree.

“The distinction between reasonable restrictions placed on property and a

‘taking’ without compensation is a matter of degree of damage to the

property owner. Whether a taking has occurred depends upon whether

‘the restriction practically or substantially renders the land useless for all

reasonable purposes.’ The loss caused the individual must be weighed to

determine if it is more than he should bear.... ‘[I]f the damage is so great

to the individual that he ought not to bear it under contemporary standards,

then courts are inclined to treat it as a ‘taking’ of the property or an

unreasonable exercise of the police power.’”


27, 343 N.W.2d 816, 819 (Ct. App. 1983)

d. Before making regulatory taking determination courts must determine

what, precisely, is the property at issue.

“Because our test for regulatory taking requires us to compare the value

that has been taken from the property with the value that remains in the

property, one of the critical questions is determining how to define the unit

of property ‘whose value is to furnish the denominator of the fraction.’”

Zealy v. City of Waukesha, 201 Wis. 2d 365, 375, 548 N.W.2d 528, 532

(1996)

e. Permanent physical occupations always constitute a taking.

“We conclude that a permanent physical occupation authorized by

government is a taking without regard to the public interests that it may

serve.”

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426, 102

S. Ct. 3164, 3171, 73 L. Ed. 2d 868 (1982)


20

XI. Sign regulations

a. See Catherine Munkittrick, Municipal Sign Regulation, League of

Wisconsin Municipalities Municipal Attorneys Institute June 2011.

b. See Reed v. Town of Gilbert (pending U.S. Supreme Court)

Issue: Whether a municipal sign code’s temporary sign provision which

provides different rules for different types of temporary signs (ex. Political

signs vs. directional signs) violates the 1st amendment?

c. Traffic safety and aesthetics are substantial governmental goals

“Nor can there be substantial doubt that the twin goals that the ordinance

seeks to further—traffic safety and the appearance of the city—are

substantial governmental goals.”

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08, 101 S. Ct.

2882, 2892 (1981).

“It is well settled that the state may legitimately exercise its police powers

to advance esthetic values.”

Members of City Council of City of Los Angeles v. Taxpayers for Vincent,

466 U.S. 789, 805, 104 S. Ct. 2118, 2129, 80 L. Ed. 2d 772 (1984).

d. Signs present special regulatory challenges not applicable to other forms

of speech

“While signs are a form of expression protected by the Free Speech

Clause, they pose distinctive problems that are subject to municipalities'

police powers. Unlike oral speech, signs take up space and may obstruct

views, distract motorists, displace alternative uses for land, and pose other

problems that legitimately call for regulation.”

City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S. Ct. 2038, 2041 (1994)

e. State may sometimes curtail speech when necessary to advance significant

and legitimate state interest.

“[T]he state may sometimes curtail speech when necessary to advance a

significant and legitimate state interest.”

Members of City Council of City of Los Angeles v. Taxpayers for Vincent,

466 U.S. 789, 804, 104 S. Ct. 2118, 2128, 80 L. Ed. 2d 772 (1984).


21

XII. Noise ordinances

a. See Joel L. Aberg, Is Your Municipality’s Noise Ordinance

Constitituional?, League of Wisconsin Municipalities Municipal

Attorneys Institute June 2014.

XIII. Adult business and public nudity ordinances

a. See Michael J. Roman, Is it Time to Hire a Municipal Statistician?

Regulating Adult Business in the Seventh Circuit, League of Wisconsin

Municipalities Municipal Attorneys Institute June 2014.

b. Nude dancing includes expressive element, and is entitled to some

constitutional protection

“Nude dancing has been acknowledged to include an expressive element,

and accordingly is entitled to at least some degree of constitutional

protection.”


156, 159 (1998)

c. Incidental limitation on 1st Amendment freedoms is permissible when

speech and non-speech are combined in the same course of conduct.

“However, it is also a recognized constitutional principle that “when

‘speech’ and ‘nonspeech’ elements are combined in the same course of

conduct, a sufficiently important governmental interest in regulating the

nonspeech element can justify incidental limitations on First Amendment

freedoms.’”


156, 159 (1998)

d. Government may regulated conduct when speech and non-speech

elements are combined provided certain factors are satisfied

“In such instances, the government may infringe upon First Amendment

freedoms to regulate conduct so long as: (1) the targeted conduct falls

within the domain of state regulatory power; (2) the statutory scheme

advances important or substantial government interests; (3) the state's

regulatory efforts are unrelated to the suppression of free expression; and

(4) the regulations are narrowly tailored.”

Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis. 2d 13, 20-21, 580

N.W.2d 156, 159-60 (1998).


22

XIV. Assembly related ordinances

a. See Lara Mainella, The ‘Occupy’ Movement – First Amendment &

Selected other Legal Issues, League of Wisconsin Municipalities

Municipal Attorneys Institute June 2012.

b. Permit and fee requirement prior to authorizing public speaking, parades,

or assemblies is prior restraint on speech which carries heavy presumption

against validity.

Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S.Ct. 2395

(1992)

c. It is the initial duty of the person who claims 1st Amendment protection to

demonstrate that the regulated conduct is speech or its equivalent.

“It is, nevertheless, the initial duty of the person who claims the protection

of the First Amendment to demonstrate that the [regulated] conduct is

speech or its equivalent, to which First Amendment protections apply.”

State v. Crute, 2015 WI App 15, ¶ 11, 360 Wis. 2d 429, 439, 860 N.W.2d

284, 289

d. Communities may generally impose permit requirement on those wishing

to hold a march, parade, or rally in a public forum.

“Generally, a ‘government, in order to regulate competing uses of public

forums, may impose a permit requirement on those wishing to hold a

march, parade, or rally.”

State v. Crute, 2015 WI App 15, ¶ 26, 360 Wis. 2d 429, 444, 860 N.W.2d

284, 292

e. Permit scheme controlling time, place, and manner of speech is subject to

three prong test

“In particular, a permit scheme controlling the time, place, and manner of

speech is subject to a three-prong test:

(1) it must be content-neutral;

(2) it must be “ narrowly tailored to serve a significant governmental

interest”; and

(3) it must “leave open ample alternatives for communication.”

https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1992111340&pubNum=708&originatingDoc=Ia59c3910ff6c11d983e7e9deff98dc6f&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)

https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1992111340&pubNum=708&originatingDoc=Ia59c3910ff6c11d983e7e9deff98dc6f&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)


23

State v. Crute, 2015 WI App 15, ¶ 26, 360 Wis. 2d 429, 444-45, 860

N.W.2d 284, 292

i. Content neutral

“A regulation that serves purposes unrelated to the content of

expression is deemed neutral, even if it has an incidental effect on

some speakers or messages but not others.”

Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746,

2754, 105 L. Ed. 2d 661 (1989)

ii. Narrowly tailored

“A time, place, and manner regulation of expressive activity is

considered narrowly tailored so long as it ‘promotes a substantial

government interest that would be achieved less effectively absent

the regulation.’ The regulation need not be ‘the least restrictive or

least intrusive means.’ However, ‘this standard does not mean that

a time, place, or manner regulation may burden substantially more

speech than is necessary to further the government's legitimate

interests. Government may not regulate expression in such a

manner that a substantial portion of the burden on speech does not

serve to advance its goals.’”

State v. Crute, 2015 WI App 15, ¶ 30, 360 Wis. 2d 429, 445-46,

860 N.W.2d 284, 292

iii. Leaves open ample alternatives for communication

“The final requirement, that the guideline leave open ample

alternative channels of communication, is easily met. Indeed, in

this respect the guideline is far less restrictive than regulations we

have upheld in other cases, for it does not attempt to ban any

particular manner or type of expression at a given place or time.

Rather, the guideline continues to permit expressive activity in the

bandshell, and has no effect on the quantity or content of that

expression beyond regulating the extent of amplification. That the

city's limitations on volume may reduce to some degree the

potential audience for respondent's speech is of no consequence,

for there has been no showing that the remaining avenues of

communication are inadequate.”

Ward v. Rock Against Racism, 491 U.S. 781, 802, 109 S. Ct. 2746,

2760, 105 L. Ed. 2d 661 (1989)


24

f. Determining ‘content neutrality’ in time, place, or manner cases requires

analyzing whether the government adopted the regulation because it

disagrees with the message conveyed.

“The principal inquiry in determining content neutrality, in speech cases

generally and in time, place, or manner cases in particular, is whether the

government has adopted a regulation of speech because of disagreement

with the message it conveys.”

Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2754,

105 L. Ed. 2d 661 (1989)

XV. Liquor Licenses

a. Property right in liquor licenses.

Tavern League of Wisconsin v. City of Madison, 131 Wis. 2d 477, 389

N.W.2d 54 (Ct. App. 1986).

b. City ordinance authorizing clerk to withhold issuance of liquor licenses

granted by common council if it appeared that licensees had outstanding

and unpaid federal, state or municipal taxes, assessments or forfeitures

failed to provide minimum due process by depriving licensee of valuable

property right without hearing.

Tavern League of Wisconsin v. City of Madison, 131 Wis. 2d 477, 389

N.W.2d 54 (Ct. App. 1986).

XVI. Sex Offender Residency Ordinances

a. City sex offender residency ordinance was non-punitive measure such that

its retroactive application to offender did not violate defendant’s right of

protection against double jeopardy and ex post facto laws. City of S.

Milwaukee v. Kester, 2013 WI App 50, 347 Wis. 2d 334, 830 N.W.2d 710

review denied, 2013 WI 87, 350 Wis. 2d 729, 838 N.W.2d 636

b. Note: A recent Milwaukee Circuit Court decision ordering a sex offender

to be housed in Milwaukee County without regard to local residency

ordinances is being challenged in Court of Appeals.

http://www.jsonline.com/news/milwaukee/municipalities-ask-appeals-

court-to-block-judge-on-sex-offender-b99508377z1-305309441.html

The State Legislature is also considering statewide sex offender residency

statutes which may preempt local ordinances.

Date post:	17-Feb-2017
Category:	Law
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