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STATE OF WISCONSIN CIRCUIT COURT MILWAUKEE COUNTY

BRANCH 14

----------------------------------------------------

MILWAUKEE COUNTY, et al,

Plaintiffs, CASE NO. 15-CV-001536

vs.

PRESERVE OUR PARKS, LLC,

Defendant.

----------------------------------------------------

EXCERPT OF MOTION HEARING

(DECISION)

----------------------------------------------------

BEFORE THE HONORABLE CHRISTOPHER R. FOLEY,

CIRCUIT COURT JUDGE PRESIDING

JUNE 26, 2015

A P P E A R A N C E S:

ALAN MARCUVITZ, Attorney at Law, and PAUL BARGREN,

Corporation Counsel, appeared on behalf of the

Plaintiffs, Milwaukee County.

VINCENT MOSCHELLA, Deputy City Attorney, appeared on

behalf of the Plaintiffs, City of Milwaukee.

ANTHONY RUSSOMANNO, Assistant Attorney General,

appeared on behalf of the Department of Transportation,

as Intervening Plaintiffs.

WILLIAM O'CONNOR, Attorney at Law, appeared on behalf

of the Defendants, Preserve Our Parks, LLC.

ALSO PRESENT: Jessica Shrestha, Mary Beth Peranteau

and Charles Kamps.

BONNIE H. DOMASK

Official Court Reporter

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E X C E R P T O F P R O C E E D I N G S

THE COURT: Okay. I think probably some of my

discussion has indicated where I've ended up here, and

I have ended up with the proposition that the County is

entitled to summary judgment on this second prong

analysis.

As I said, I am assuming in this discussion

that Preserve Our Parks' position is correct. I think

factually it is correct that this line, the 1913 line

and the legislative boundary determination is not

correct, that the lake boundary was further west than

this 1913 line.

And as I said, I'm going to assume that this

couture development when and if it gets built is going

to be on land but for this legislation would have been

subject to the public trust. So I'm doing just what

the legislature provided the contingency for. I'm

making a determination that factually I don't think

their determination is historically accurate.

I do quickly reiterate that I think that

whether it be through trial or divine intervention, I

do not believe that the actual boundary of the lake in

1848 is ascertainable with any level of absolute

certainty, maybe not even reasonable certainty.

I'm a little more uncomfortable with that.

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You might be able to get to reasonable certainty. But

in my mind that is all a big so what. I'm assuming

that this proposed development would be on public trust

land. And the issue is whether or not the legislature

in fulfilling their trust responsibilities and removing

this land from the trust acted within the constraints

of the public trust doctrine.

And I am convinced on this record that there

is no way that Preserve Our Parks could overcome the

presumption of rationality of reasonableness, the

obligation to show beyond any reasonable doubt that

they act outside of those constraints and here's why.

We go back. Historically, I think we thought

maybe until this Illinois Central Railroad case in the

United States Supreme Court, we thought you couldn't

transfer public land, public trust land to a private

entity.

Well, we discovered in those cases, the

Illinois case and in the City of Milwaukee case that

you can under certain circumstances transfer trust

property to a private entity even for a private

purpose.

Hence, the legislature as trustees are vested

with the discretion within the constraints of reason to

seed lake bed or determine lake boundaries if such

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action has a negligible impact on navigation and public

water interests and if that action serves the

significant public interest.

I've got this quote in my notes from this

Illinois Central Railroad case. I don't think I need

to read it.

When in exercising that discretion as trustees

of the public trust, the legislature makes a

determination of this nature while gristling at the

effort to say to me you have no authority to review

this, I still owe great deference. The case law is

clear on that. I owe great deference to their

determinations.

They are presumed to have acted reasonably and

rationally and POP needs to establish the

unconstitutionality beyond a reasonable doubt.

In this context that means that if this case

were to proceed to trial that POP would have to show

that there was more than a negligible impact on either

navigation or the public interest in water access,

getting there, viewing it, et cetera, or that there is

not some significant public benefit in relinquishing

the land.

On this record, I just don't see any

possibility of that, Mr. O'Connor, and here's why. The

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act establishes -- and here you and I disagree a little

bit and when the smarter judges see this which I have

no doubt they will, it may be of some significance, I

agree with the proposition that this 1913 line has been

of historic significance, and I think that is

established on this record. It is a boundary line that

has been recognized by both private and public entities

for some period of time in order to address the

uncertainty that arises from public trust lands, where

they begin, where they end, et cetera. This obviously

is a prime example of that.

So no one can argue that the legislature

trying to alleviate or eliminate that uncertainty, I

don't think you can argue that that's an irrational

act.

Secondly, now we get to all this what is the

impact. The actual land in dispute here has not been

lake for decades. It hasn't been lake for over a

hundred years. It may still be lake bed. I get that.

That's what the cases said. It's still lake bed, but

it hasn't been lake for a hundred years. So there is

no impact on and navigation, navigation itself. In the

context of this case, that is self-evident.

So then you get to this issue of does it have

a negative impact on other public interests in the

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lake, access to it, visualization of it, et cetera.

And based on the everything in this record,

there is no suggestion anywhere that this development

will negatively impact those less direct water

interests of the public.

If anything, it appears from this record that

it will benefit those interests certainly in terms of

access, certainly in terms of visualization, the way

this property is supposedly going to be developed.

According to the submissions, there is going to be

public access, et cetera, et cetera.

The only argument of a negative impact might

be site lines behind the development. But to suggest

that that's anything other than negligible when the

legislature has determined that there is a significant

public benefit, there is just no way that POP can

establish anything but a negligible impact.

And I think that this record suggests that in

all likelihood it can only be shown that there is a

positive impact. Then you have this other

determination by the legislature that there is a

significant public benefit to this, economically.

Maybe they are implying that there's an access and

visualization, et cetera.

I just -- and I've been mindful I hope that

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this is summary judgment and trying not to get outside

the record because Mr. O'Connor has been adamant about

that.

But I think all of the facts to which I have

overted except this dispute we've got about what role,

what recognition historically exists as to this 1913

line, everything that I've said is either explicitly

conceded or is a legislative finding or is

self-evident. So I don't know what facts could

possibly be put forward to show that their

determination that there is a negligible impact and

there is great public benefit to show that they acted

outside the constraints of their trust responsibility

under the constitution. It can't happened. There is

no argument that could be made.

And I don't like some of this either. There's

rushing it in and it's apparently significantly

drafted, if not word for word by a private lawyer

rather than the legislature and last minute and so

forth and so on, I don't like that either. I think

that has an odor to it, but I'm not responsible for

answering that.

If it were just personal opinion, we might go

a different way. My responsibility is to determine

whether they have acted consistent with their

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constitutional responsibilities, and I don't think on

this record you could come close to show that they did.

Okay. Anything else as we wrap up, folks?

MR. MARCUVITZ: Nothing from the plaintiff.

THE COURT: Okay. Thank you very much. It

was very interesting.

(Whereupon proceedings were concluded at 10:18 a.m.)

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STATE OF WISCONSIN )

) ss.

MILWAUKEE COUNTY )

I, BONNIE H. DOMASK, Official Court

Reporter in and for the Circuit Court of Milwaukee

County, do hereby certify that the foregoing is a true

and correct transcript of all the proceedings had in

the above-entitled matter as the same are contained in

my original machine shorthand notes on the said trial

or proceedings.

Dated at Milwaukee, Wisconsin on July 7, 2015.

__________________________________

BONNIE H. DOMASK

OFFICIAL COURT REPORTER