League members may also request an opinion directly from the League via email. Please include the subject heading and number when making such a request.

369. Wisconsin Supreme Court declined to adopt interpretation of governmental immunity statute that would reverse longstanding precedent and expand municipal liability under sec. 893.80(4) explaining that to do so would create problems for governmental entities that have managed their affairs relying on longstanding precedent and create the impression that the decision to overturn prior cases is undertaken merely because composition of court has changed. Engelhardt v. City of New Berlin, 2019 WI 2. 3/2019.

368.  Declaratory judgment is not appropriate for reviewing legislative determinations because a court cannot substitute its judgment for that of the legislature. Certiorari review is appropriate and adequate to address claims that the municipality’s findings of blight and “but for” assertions are improper and is the mechanism by which a court should test the validity of a municipality’s legislative determinations. Voters with Facts v. City of Eau Claire, 2018 WI 63. Published as a League League-L e-Newsletter. 

367. Municipal courts are a coequal branch of municipal government. This legal comment provides a basic overview of the statutes governing municipal courts (chapters 755 and 800) which were significantly amended by 2009 Wis. Act 402, with changes effective January 1, 2011. Comment covers creating and abolishing municipal courts, expenses in operating a municipal court, municipal judge salary, term of office, elections and appointments, authority over court personnel, and municipal court powers and jurisdiction. 03/2014.

366. The "record on review" for purposes of reviewing administrative action is that record actually compiled and certified by the agency, which it sends to the circuit court.  In reviewing DNR's decision to approve village's permit for high capacity well, court could not consider expert affidavit submitted to the DNR's in-house attorney during a related proceeding that concluded pumping of proposed high capacity well would cause adverse environmental impacts to the wetland and navigable surface waters of lake. Lake Beulah Mgmt. Dist. v. Dept. of Natural Resources, 2011 WI 54, 799 N.W.2d 73. 8/2011.

365. Wisconsin does not recognize a “deliberative process privilege” and there is no privilege implicit in Wis. Stat. 19.85 (open meeting law exemptions) which would shield the contents of a governmental body’s closed session from a discovery request made pursuant to Wis. Stat. sec. 804.01 during litigation. Thus, school district was required to answer interrogatories filed by ex-employee attempting to discover substance of closed session communications pertaining to whether or not to renew her contract. Sands v. Whitnall School District, 2008 WI 89, rev’g 2007 WI App. 3. 7/2008.

364. If a municipal governing body reduces a maximum forfeiture, a municipal court has no authority to disregard that change and continue to enforce a Wis. Stat. sec. 800.03(3) municipal court deposit schedule that imposes a deposit amount greater than the new forfeiture maximum because the authority of a municipal court to propose or enforce a deposit schedule under 800.03(3) must yield to the legislative power of the municipal governing body to set and modify ordinance forfeiture amounts. 7/2008.

363. In a case with a somewhat unusual posture, the U.S. Supreme Court effectively held that a federal administrative agency can overrule a prior interpretation of its governing federal statute by a federal court unless the court's decision indicates that the decision follows from an unambiguous statute and that there is no room left for agency discretion. In National Cable & Telecommunications Association v. Brand X Internet Services, 125 S. Ct. 2488(2005), the U.S. Supreme Court affirmed the Federal Communications Commission's (FCC's) classification of cable modem service as an unregulated "information service" rather than a common carrier "telecommunications service" or a locally franchised "cable service" under the federal Communications Act. The Ninth Circuit had ruled on this issue earlier and the FCC then issued a contrary declaratory ruling. When Internet Service Providers and local governments then petitioned for review of the FCC's ruling in three different federal circuits around the country, a statute governing multi-district litigation resulted in the random assignment of the issue to the Ninth Circuit which then was confronted with whether it should give deference to the FCC's decision or be bound by stare decisis. The Ninth Circuit concluded stare decisis bound it to its earlier decision despite the intervening FCC ruling. The U.S. Supreme Court disagreed and reversed, holding that a court's prior judicial construction of a statute trumps an agency construction entitled to Chevron deference only if the prior court decision holds that its construction follows from the statute's unambiguous terms and leaves no room for agency discretion.1/2006.

362. A municipal court proceeding constitutes a trial for purposes of Wis. Stat. sec. 800.14(4) where the municipality presents its case, the defendant had an opportunity to present evidence, and the matter is judicially resolved on its merits. City of Pewaukee v. Carter, 2004 WI 136, __ Wis. 2d __, __ N.W.2d __. 10/2004.

361. A municipality may not seek a new trial in circuit court pursuant to Wis. Stat. sec. 800.14(4) where the municipal court grants a defendant's motion to dismiss after presentation of the municipality's case but prior to presentation of the defendant's case. City of Pewaukee v. Carter, Appeal No. 03-1114 (Ct. App. November 20, 2003) (2-1 decision) (recommended for publication). 11/2003.

360. Municipality that does not have a municipal court and is located in more than one county may file and prosecute traffic ordinance violations (moving and non-moving) in any of such counties under sec. 345.31, Stats. Trial location for all other ordinance violation actions will be determined under sec. 801.50, Stats., not 755.05, Stats., or 971.19, Stats. 2/2002.

359. Municipal courts do not have inherent authority to order an out-of-state defendant to personally appear at a trial on a civil forfeiture action. City of Sun Prairie v. Davis, Case No. 97-1651 (Wis. Supreme Ct. June 18, 1999). 6/1999.

358. Section 800.14(4), Wis. Stats., which gives the losing party in a municipal proceeding the right to demand a jury trial on appeal to the circuit court but does not afford the respondent the same right, does not violate a respondent's equal protection rights because there is a rational basis for the legislature's distinction between appellants and respondents in municipal court appeals. See 
City of Kenosha v. Leese, Case No. 98-1769 (Ct. App. June 16, 1999) (publication recommended). 6/1999.

357. Petitions for common-law certiorari review are generally barred if not filed within six months of the adverse governmental action. See State ex rel. Enk v. Mentkowski, 76 Wis. 2d 565, 575-76, 252 N.W.2d 28, 32 (1977). 3/1999.