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recent cases and misc. issues relevant to the municipalities of wisconsin and their citizens. you can’t have it both ways in court: judicial estoppel december 2nd, 2016 courts sometimes invoke a doctrine called judicial estoppel. essentially, it means you can’t take two positions or make two arguments (often in the same case) that are inconsistent with each other. a classic example is a border argument between maine and new hampshire, in which new hampshire, having previously agreed to a certain border to settle a lawsuit [new hampshire v. maine, 426 us 363 (1977)], tried to claim some land was in new hampshire in a different lawsuit against maine [new hampshire v. maine, 532 u.s. 742 (2001)]. the us supreme court argued that new hampshire could not, after agreeing to the borderline in the 1977 case, now argue that the border was different. in a recent wisconsin case, gerhartz v. town of lomira , eugene and catherine gerhartz won and lost. the town had permitted one of gerhartz’ neighbors to place a pipe (for pumping manure) and manhole in a town right of way on the gerhartz’ property. gerhartz sued the town for inverse condemnation, a “taking.” gerhartz was successful in arguing that the town had taken gerhartz’ property without just compensation, and was awarded compensation. gerhartz also sued the neighbors, jeff and brenda elsinger, for trespass. the trespass claim was based on the fact that the town had no authority to allow the elsingers to use the town right of way for private purposes (pumping manure). the court held that the gerhartz could not argue both that the taking was valid and receive compensation for the taking, and also argue that the taking was invalid, and receive compensation for trespass. posted in caselaw summaries | no comments » what does “of” mean? september 27th, 2016 when a county sues a town, it can get confusing. in calumet county vs. the town of harrison , calumet county sued the town for the town’s failure to pay the county for removing snow from a county owned sidewalk along a county highway. the county apparently felt the town was responsible for removing all snow from all sidewalks in the town, no matter who owned them. the circuit court disagreed and held for the town. the appeals court also held for the town. this case makes for interesting reading, if only because it shows the lengths parties will sometimes go to in court cases. the entire case was, more or less, about the meaning of the word “of.” of course, the court of appeals only gives us those facts that it relies on to make its decision, and there are almost always two sides to every story, but the county does not come out very well in this one. the statute states that the town shall remove snow and ice from the sidewalks “of” the town. the county argued that this meant all sidewalks within the town. the town argued that this meant all sidewalks owned by the town, and the courts agreed with the town. posted in caselaw summaries , highways, roads, etc. | no comments » consequences of incivility on city council september 8th, 2016 the city of lake elmo is a suburb of st. paul. i know this blog is about wisconsin municipal law, but a recent article in the st. paul pioneer press caught my attention and i thought i’d bring it over to wisconsin as a cautionary tale. the city of lake elmo has been in the news quite a bit the last few years, primarily due to the behaviour of certain members of the city council. of course they blame each other for the problems, kind of like: “i’m not disrespectful you are. no you are. no you are.” aside from making lake elmo the subject of a certain amount of ridicule in the twin cities area, the antics of the council have now had some potentially serious consequences. the city’s insurer, the insurance trust board of the league of minnesota cities, decided to increase the city’s deductable from $500 to $200,000. the insurance company said it is because the way city council members treat each other, the city’s employees, and other government officials has greatly increased the risk of claims against the city. the article in the paper noted, “eight city hall workers have left since march 2015. the city’s administrator is the sixth one hired in seven years.” you can read the pioneer press article here . or just do a “google” search on lake elmo. posted in uncategorized | no comments » city sign ordinance unenforceable july 6th, 2016 an eagle river inn proprietor and one the neighboring businesses were having a dispute over parking issues. the inn proprietor put up a sign prohibiting his neighboring businesses’ customers from parking on the inn parking lot, specifically stating the neighbor’s business name and indicating their customers were “rude.” somehow the city of eagle river got involved, because this business sign, according to the city’s interpretation, was prohibited by the city’s sign ordinance. there is also a state statute that expressly permits a private party to erect no parking signs much like the one in question. thus we have a preemption issue, and the court of appeals made short work of the case , stating that the state statute preempted the city ordinance and the sign was permitted under state law. thus the city ordinance could not be enforced against this sign, under these circumstances. (it’s a bit complicated, but the city ordinance did not restrict no parking signs on private property, instead it prohibited certain kinds of off premises signs, and the argument was that since the sign was on the inn’s property, but was directed at the off premises neighboring business, it was in violation of the city’s sign ordinance). i see two lessons here – the city’s ordinance may well be valid as written, but was invalid as applied in this case. so even though the language of the city ordinance didn’t exactly prohibit no parking signs, in this case it prohibited this no parking sign. thus state law preempted this specific application and enforcement of the ordinance, but didn’t invalidate the ordinance itself. the other lesson that appears is that neighbors in disputes often want to drag local municipalities into what is, at its core a private dispute. municipalities should be wary of intervening in private disputes, and make sure any intervention is an appropriate use of local government authority. posted in caselaw summaries | no comments » adverse possession against or by municipalities eliminated march 3rd, 2016 on march 1, 2016, governor walker signed 2015 wisconsin act 219 into law eliminating adverse possession by or against municipalities. in other words, individuals or entities cannot acquire publicly owned land by adverse possession, and likewise municipalities cannot acquire privately owned land by adverse possession. (this also applies to other state or county owned land). according to the legislative memo accompanying the bill, “the prohibition applies retroactively to adverse possession or use where the current 20 year occupancy requirement has not been met at the time of the effective date of the bill.” i still see some potential for disputes over borders in cases where it is unclear if the 20 year requirement was met prior to the effective date of the new law. posted in pending legislation | no comments » when is a “note” a “note” under the public records law? january 21st, 2016 it should go without saying, but i’ll say it, that the wisconsin’s public records law favors public disclosure of public records. thus questions of whether or not to release a “record” should generally be guided by the presumption of disclosure. nevertheless, the public records law does have exceptions, and one of them is for “notes.” “notes” are expressly excluded from the definition of record. as seems to be a common enough occurrence, even the definition of a deceptively simple word like “notes” can lead to a circuit court case, and an appellate court case – the voice of wisconsin rapids, llc, v. wisconsin rapids public school dis

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Domain Name: WISCONSINMUNICIPALLAW.COM
Registry Domain ID: 1581634103_DOMAIN_COM-VRSN
Registrar WHOIS Server: whois.godaddy.com
Registrar URL: http://www.godaddy.com
Updated Date: 2017-11-20T16:48:16Z
Creation Date: 2010-01-12T20:10:57Z
Registry Expiry Date: 2020-12-04T11:59:59Z
Registrar: GoDaddy.com, LLC
Registrar IANA ID: 146
Registrar Abuse Contact Email: [email protected]
Registrar Abuse Contact Phone: 480-624-2505
Domain Status: clientDeleteProhibited https://icann.org/epp#clientDeleteProhibited
Domain Status: clientRenewProhibited https://icann.org/epp#clientRenewProhibited
Domain Status: clientTransferProhibited https://icann.org/epp#clientTransferProhibited
Domain Status: clientUpdateProhibited https://icann.org/epp#clientUpdateProhibited
Name Server: NS05.DOMAINCONTROL.COM
Name Server: NS06.DOMAINCONTROL.COM
DNSSEC: unsigned
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  REGISTRAR GoDaddy.com, LLC

SERVERS

  SERVER com.whois-servers.net

  ARGS domain =wisconsinmunicipallaw.com

  PORT 43

  TYPE domain

DOMAIN

  NAME wisconsinmunicipallaw.com

  CHANGED 2017-11-20

  CREATED 2010-01-12

STATUS
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  NS05.DOMAINCONTROL.COM 97.74.102.3

  NS06.DOMAINCONTROL.COM 173.201.70.3

  REGISTERED yes

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