05 30 16 Sign Code Presentation

2016 MUNICIPAL ATTORNEYS INSTITUTE

LEAGUE OF WISCONSIN MUNICIPALITIES

“Sign Regulation after Reed v. Town of Gilbert”

June 17, 201610:25 a.m.

Hector de la MoraVon Briesen & Roper S.C.

(262) [email protected]

Douglas J. HofferEau Claire Assistant City Attorney

(715) [email protected]

June 17-19Municipal Attorneys Institute

League of Wisconsin MunicipalitiesStone Harbor Resort, Sturgeon Bay

mailto:[email protected]

mailto:[email protected]

Hoffer & de la Mora – Sign Regulation after Reed

I. Sign regulations

a. Content based regulations are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.

“The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws ‘abridging the freedom of speech.’ U.S. Const., Amdt. 1. Under that Clause, a government, including a municipal government vested with state authority, ‘has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’”

Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2226 (2015)

Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.


b. Content based regulations must satisfy strict scrutiny

Our precedents have also recognized a separate and additional category of laws that, though facially content neutral, will be considered content-based regulations of speech: laws that cannot be ‘justified without reference to the content of the regulated speech,’ or that were adopted by the government “because of disagreement with the message [the speech] conveys,’ Those laws, like those that are content based on their face, must also satisfy strict scrutiny.


c. A benign government motive does not impact the content neutrality analysis.

A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech.


We have thus made clear that “ ‘[i]llicit legislative intent is not the sine qua non of a violation of the First Amendment,’ ” and a party opposing

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the government “need adduce ‘no evidence of an improper censorial motive.’ ”


Although ‘a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary.’ In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral.


d. Speech regulation targeted at specific subject matter is content based even if it does not discriminate viewpoints.

“[A] speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.

Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015)

e. Speaker based distinctions do not automatically render distinction content based.

[T]he fact that a distinction is speaker based does not, as the Court of Appeals seemed to believe, automatically render the distinction content neutral.


Because “[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content,” we have insisted that “laws favoring some speakers over others demand strict scrutiny when the legislature's speaker preference reflects a content preference,”


f. The fact that a distinction is event based does not render it content neutral.


g. Only content based distinctions are subject to strict scrutiny

Not “all distinctions” are subject to strict scrutiny, only content-based ones are. Laws that are content neutral are instead subject to lesser scrutiny.

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h. Note: Reed did not expressly overrule any prior cases. Implicit overruling is disfavored.

See Agostini v. Felton, 521 U.S. 203, 237 (1997)

i. 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).

j. 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)

k. 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 (1984).

l. The Constitution accords a lesser protection to commercial speech than other constitutionally protected expression.

The Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. The

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protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557, 562-63, 100 S. Ct. 2343, 2350 (1980)

m. Content neutral speech regulations subject to intermediate scrutiny, and upheld if “narrowly tailored to serve a significant governmental interest.”

Even though the Act is content neutral, it still must be “narrowly tailored to serve a significant governmental interest.” The tailoring requirement does not simply guard against an impermissible desire to censor. The government may attempt to suppress speech not only because it disagrees with the message being expressed, but also for mere convenience. Where certain speech is associated with particular problems, silencing the speech is sometimes the path of least resistance. But by demanding a close fit between ends and means, the tailoring requirement prevents the government from too readily “sacrific[ing] speech for efficiency.”

McCullen v. Coakley, 134 S. Ct. 2518, 2534 (2014)

II. 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.”

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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

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

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“…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)

III. 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

“[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.”


“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.

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“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.”


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. 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.

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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.

IV. 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.’”

Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis. 2d 13, 23, 580 N.W.2d 156, 161 (1998)

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)

V. Severability

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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 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.’”

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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

VI. 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 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 right2. State action deprived plaintiff of the right3. There was a failure to provide constitutionally mandated

procedures

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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.’ ”

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

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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.”

In re Commitment of Alger, 2015 WI 3, ¶ 39, 360 Wis. 2d 193, 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)

iii. Facial substantive due process

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


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.’”


“The seminal zoning case, which involved a facial substantive due process challenge, is Euclid”.

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“[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).

VII. 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)

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).

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“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.”

In re Commitment of Alger, 2015 WI 3, ¶ 39, 360 Wis. 2d 193, 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, 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.”


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“The fact a statutory classification results in some inequity, however, does not provide sufficient grounds for invalidating a legislative enactment.”


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.”

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

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“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)

VIII. 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.”

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Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis. 2d 13, 33, 580 N.W.2d 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.”


“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)

“[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.’”

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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).

IX. 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.

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.”


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.”

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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.”

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

City of Madison v. Baumann, 162 Wis. 2d 660, 674, 470 N.W.2d 296, 301 (1991)

X. 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.”


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.”


“The role of courts in zoning matters is limited because zoning is a legislative function.”

Town of Rhine v. Bizzell, 2008 WI 76, ¶ 26, 311 Wis. 2d 1, 20, 751 N.W.2d 780, 790; See also Buhler v. Racine County, 33 Wis.2d 137, 146–47, 146 N.W.2d 403 (1966).

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c. A properly enacted zoning ordinance must satisfy constitutional requirements

“Nonetheless, a properly enacted ordinance must satisfy constitutional requirements.”


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.”


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.”

Town of Rhine v. Bizzell, 2008 WI 76, ¶ 37, 311 Wis. 2d 1, 28, 751 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.”


XI. Regulatory Takings

a. Distinguishing between permissible land use “regulation” and “taking” which may implicate the 5th Amendment:

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“[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”).

“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.”

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

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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.’”

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

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