The League's League-EL
September 9, 2022
Disabled Voters Entitled to Absentee Ballot Assistance

Disabled voters filed an action in federal district court seeking declaratory and injunctive relief after Wisconsin’s Supreme Court construed Wis. Stat. § 6.87(4)(b)1, in Teigen v. Wisconsin Elections Commission, as prohibiting voters from obtaining third party assistance to return an absentee ballot to the municipal clerk. They were successful in obtaining such relief.

On August 30, 2022, District Court Judge James Peterson held that disabled voters whose disability causes them to require assistance with mailing or delivering their absentee ballot to the municipal clerk are entitled to assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union, under § 10508 of the federal Voting Rights Act (VRA). Judge Peterson also held that, to the extent Wis. Stat. § 6.87(4)(b)1 prohibits such assistance, it is preempted by § 10508. Carey v. Wisconsin Elections Comm’n, No. 22-cv-402-jdp (W.D. Wis. August 30, 2022). 

Judge Peterson enjoined the Wisconsin Elections Commission (WEC) from enforcing Wis. Stat. § 6.87(4)(b)1 under Wis. Stat. § 5.05(2m) or § 5.06 against disabled voters for receiving assistance from a third party in mailing or delivering their absentee ballot to the municipal clerk because the voter requires such assistance. The judge also ordered the WEC to instruct Wisconsin municipal clerks that the VRA requires that any Wisconsin voters who require assistance with mailing or delivering their absentee ballots to the municipal clerk because of a disability be permitted to receive such assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.

On September 7, the Wisconsin Elections Commission issued Guidance on Absentee Ballot Return Options Under the Federal Voting Rights Act which addresses frequently asked questions.

In Challenge to Sex Offender Residency Moratorium, Seventh Circuit Overrules Its Ex Post Facto Retroactivity Precedent

The U.S. Constitution’s ex post facto clause prohibits laws that criminalize or penalize behavior after the behavior has been committed or that increase the penalties for behavior already committed. Although the U.S. Supreme Court early on interpreted the clause as only applying to criminal or penal laws, civil laws that are essentially penal in nature cannot be used to evade the clause’s prohibition. For a law to be deemed ex post facto it must be both (1) retroactive and (2) punitive. In a lawsuit challenging a Wisconsin village’s ordinance imposing a moratorium on any new sex offenders residing in the village as being ex post facto, the 7th Circuit U.S. Court of Appeals overruled its retroactivity precedent. Koch v. Village of Hartland, 43 F.4th 747 (7th Cir. 2022), overruling United States v. Leach, 639 F.3d 769 (7th Cir. 2011) and Vasquez v. Foxx, 895 F.3d 515 (7th Cir. 2018). The court’s decision is explained in more detail below but is very significant because under the court’s prior precedent, sex offender residency ordinances were less likely to be found retroactive. Under the new precedent, sex offender residency ordinances are more likely to be found retroactive meaning the emphasis will be on determining whether the ordinance is punitive in nature.

The 7th circuit overruled its earlier case law which held that a law that targets or applies only to conduct occurring or undertaken after the law’s enactment is not retroactive, concluding it was not in keeping with other federal or state case law. Instead, the 7th Circuit said that in determining whether a law is retroactive, “[t]he critical question is whether the law changes the legal consequences of acts completed before its effective date.” Id. at 756. The court concluded that the village’s ordinance was indeed retroactive. Because the district court had applied the 7th Circuit’s existing precedent and concluded the village’s ordinance was not retroactive, thereby removing the need for it to determine whether the law was punitive, the 7th Circuit remanded the case to the district court to determine whether the ordinance was punitive using the two-part “intent-effects test.” Id. The first inquiry is “whether the legislature intended to enact a punitive, rather than a civil, law.” Id. If not, the second inquiry is whether the law is “so punitive” in “effect as to negate the legislature’s intention to deem it civil. The 7th Circuit said that five factors inform the effects analysis: whether the law (1) has been regarded in our history and traditions as a punishment; (2) imposes an affirmative disability or restraint; (3) promotes the traditional aims of punishment; (4) has a rational connection to a nonpunitive purpose; or (5) is excessive with respect to this purpose. Id. at 757.

Rezoning is Legislative Decision Without Right to Impartial Decisionmaker

A trustee’s participation in the village board’s decision to rezone from residential to commercial property owned by her adult daughter and son-in-law, with whom she lived, was a legislative act requiring amendment of the village’s zoning ordinance and did not violate Wis. Stat. § 19.59(1)(c) of the state ethics code. Miller v. Lyndon Station Zoning Bd. of Appeals and Lyndon Station Village Bd., 2021AP1764 (Ct. App. August 25, 2022) (publication recommended).  Section 19.59(1)(c) prohibits local public officials from taking official action on matters substantially affecting matters in which they or immediate family members have a substantial financial interest or using their office in a manner that produces a substantial direct or indirect benefit for themselves or an immediate family member. However, the trustee’s participation fell under an exception in § 19.59(1)(d), which allows official action on a proposal to modify an ordinance. The trustee’s participation did not violate due process and Marris v. City of Cedarburg, 176 Wis. 2d 14 (1993) was inapposite because the rezoning was legislative rather than quasi-judicial and there was no right to an impartial decisionmaker. The court of appeals concluded it had jurisdiction for certiorari review of the village board’s decision despite the unusual procedural posture of the case in which the Zoning Board of Appeals reviewed and upheld the village board’s decision, despite later concluding that it lacked statutory authority to do so.

Temporary Limited Easements Not Compensable under Wis. Stat. § 32.09(6g)
In a 4-3 decision, the Wisconsin Supreme Court held that temporary limited easements (TLEs) are not compensable under Wis. Stat. § 32.09(6g). Backus v. Waukesha County, 2022 WI 55. Section 32.09(6g) establishes a process for determining compensation for easements taken via eminent domain by “deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of valuation, assuming the completion of the public improvement …. ” The court noted several reasons why § 32.09(6g) applies only to permanent easements, rather than temporary. First, the before-and-after valuation method does not “logically apply to valuing temporary easements because [it] attempts to measure permanent reductions in fair market value.” (¶ 14).  Second, § 32.09(6g)’s valuation method contemplates a “remainder” of land after a portion is taken. However, a TLE is essentially a rental of land that does not leave a remainder because no part has been taken away. Third, the before-and-after valuation method cannot properly capture a TLE’s value because it compares the property value before the public improvement with the value after the public improvement is complete. However, because TLEs expire upon completion of the public improvement project, the method would fail to value the TLE itself and would, instead, value the project’s impact as a whole on the property’s fair market value. Lastly, the Court noted that, although § 32.09(6g) provides for non-duplicative recovery for certain losses or damages under § 32.09(6)(a)-(g), that would only compensate for “limited aspects of a TLE” and appraisers often rely on other valuation methods to capture a TLE’s value. (¶ 18). Because of these reasons, the Court held that it is more reasonable to read the plain language in § 32.09(6g) as only applying to easements that remain in existence after the public improvement project is completed. The dissent disagreed with the majority, arguing that the plain language of § 32.09(6g) applies to all easements, including TLEs.

The Wisconsin Court of Appeals recently held that a record created by a private employer is a public record when it is being kept by an authority, and the private employer is not entitled to notice and judicial review before release of such record if the employer itself is not a record subject.  Journal Sentinel, Inc. v. Milwaukee County Sheriff’s Office, 2022 WI App 44.

In 2019, a nurse was killed in Froedtert Health’s parking garage. The Milwaukee County Sheriff’s Office (MCSO) obtained surveillance footage from the parking garage that depicted the suspect before the crime occurred. Journal Sentinel, Inc. requested the footage and, ultimately, the circuit court ordered MCSO to disclose it. Froedtert, as an intervening party, appealed the decision arguing that the record was not subject to disclosure because it was created by a private employer, it related to one of its employees, and the employee or employee’s estate did not authorize disclosure. The court of appeals disagreed. Although the footage was created by a private employer, it was being kept by MCSO, an authority under the public records law, and was subject to disclosure. Moreover, even though Froedtert created the record, it was not a record subject and did not have the right to notice or judicial review of MCSO’s decision to disclose the record.

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