Raze Order Statute’s Exclusive Remedy Provision is Limited
The “exclusive remedy” provision in Wis. Stat. § 66.0413(1)(h) that requires a person affected by a raze order issued under 66.0413(1)(b) to apply to the circuit court within 30 days for an order restraining the building inspector or other designated officer from razing the building or forever be barred, only applies to claims premised on the reasonableness of the raze order. The limitation does not preclude a challenge based on acts occurring during the subsequent repairs required under the order or a subsequent claim that a municipality is estopped from enforcing the raze or repair order. 1033 North 7th Street v. City of Fond du Lac, No. 2020AP92 (Wis. Ct. App. May 5, 2021) (publication recommended).
After property owned by a corporation named 1033 North 7th Street was vandalized and partially damaged by fire in June 2015, the City of Fond du Lac (City) issued a raze or repair order under Wis. Stat. § 66.0413(1)(b). The order gave the property owner 90 days to make necessary repairs or the building would be razed. The order advised the owner it had 30 days to contest the order under Wis. Stat. §§ 66.0413(1)(h) and 893.76. In November 2015, the owner opted to repair the building to avoid demolition. After the owner restored the roof and fixed the electrical service and plumbing, the City’s building inspector approved the repairs and told the owner that since the building was dry and sealed, there was no rush to complete the remaining cosmetic repairs. The inspector did not provide a timeline for these outstanding repairs. Between November 2015 and November 2016, neither the inspector nor any other city representative indicated that any further repairs were necessary to satisfy the raze or repair order. At some point after April 2017, the City accepted a bid to raze the property pursuant to the 2015 order. The owner filed an action in circuit court seeking declaratory relief stating that the raze or repair order issued in 2015 was no longer in effect. The owner alleged that it relied on the inspector’s assurances that the completed repairs satisfied the order and that there was no deadline for the remaining work. The City argued that the owner’s claim was barred as a matter of law because the owner failed to pursue the exclusive remedy under § 66.0413(1)(h), which sets a thirty-day deadline to challenge the original raze or repair order. The circuit court agreed with the City. The owner appealed.
In reversing the circuit court, the Wisconsin Court of Appeals court relied upon earlier case law holding that the remedy under the same statute later renumbered as § 66.0413(1)(h) applies only to claims premised on the reasonableness of the order to raze and noting that nothing within the language of § 66.0413(1)(h) bars any claim arising from acts related to the carrying out of the order. In the present case, the owner’s challenge was not related to the reasonableness of the raze order. The court reasoned that there was no basis for the owner to have filed a challenge within thirty days as the facts in contention -- the subsequent repairs and the inspector’s assurances -- had not yet occurred. In light of other subsections within § 66.0413 prescribing a ninety-day deadline for repairs and allowing a city to seek a court order prescribing razing for noncompliance within the time frame, the court concluded it would be unreasonable to apply the limited thirty-day remedy to acts occurring during subsequent repairs. The court held that the thirty-day remedy did not preclude the owner from claiming that the City is estopped from enforcing the raze or repair order. The Court of Appeals remanded the case back to the circuit court for proceedings consistent with its opinion.
It’s a Boy!
Congratulations to Assistant Legal Counsel Maria Davis and her husband on the birth of a beautiful baby boy on May 17th. While Maria is out on maternity leave, we will only have one attorney in the office. We will do our best to respond to inquiries as soon as we can, but response time will likely take longer than usual. We thank you for your patience and understanding.
SCOTUS Rejects Broad Community Caretaking Exception to Warrant Requirement
In a four-page opinion the U.S. Supreme Court held unanimously in Caniglia v. Strom that police community caretaking duties don’t justify warrantless searches and seizures in the home. During an argument with his wife, Edward Caniglia put a handgun on their dining room table and asked his wife to “shoot [him] now and get it over with.” After spending the night at a hotel Caniglia’s wife couldn’t reach him by phone and asked police to do a welfare check. Caniglia agreed to go to the hospital for a psychiatric evaluation after officers allegedly promised not to confiscate his firearms. The officers went into his home and seized his guns regardless. Caniglia sued the officers for money damages claiming that he and his guns were unconstitutionally seized without a warrant in violation of the Fourth Amendment. In Cady v. Dombrowski (1973), the Court held that a warrantless search of an impounded vehicle for an unsecured firearm didn’t violate the Fourth Amendment. According to the Court in that case “police officers who patrol the ‘public highways’ are often called to discharge noncriminal ‘community caretaking functions,’ such as responding to disabled vehicles or investigating accidents.” The First Circuit ruled in favor of the police officers in Caniglia extending Cady’s “community caretaking exception” to the warrant requirement beyond the automobile. Justice Thomas, writing for the Court, rejected the First Circuit’s extension of Cady. Justice Thomas noted the Cady opinion repeatedly stressed the “constitutional difference” between an impounded vehicle and a home. “In fact, Cady expressly contrasted its treatment of a vehicle already under police control with a search of a car ‘parked adjacent to the dwelling place of the owner.’”
SLLC Offering 3 Free Supreme Court Webinars!
The State & Local Legal Center (SLLC) is offering 3 Supreme Court review webinars covering all the big Supreme Court cases for states and local governments. These webinars are intended for both lawyers and non- lawyers. The second and third webinars will focus, respectively, on first amendment cases and police cases. More detailed information on each of the webinars, including registration links, is below.
From the Affordable Care Act to voting rights to takings this U.S. Supreme Court term had it all! This webinar will cover all the cases of interest to states and local governments except First Amendment and police cases which will be covered in subsequent webinars. Join Jeremy Feigenbaum, New Jersey State Solicitor, who argued a sovereign immunity case, Bob Peck, President of the Constitutional Litigation Center, who wrote an SLLC amicus brief in a climate change case, and James Romoser, SCOTUSblog editor, for the SLLC’s most popular event of the year.
July 15; 1PM CST Register here
The Supreme Court’s First Amendment docket didn’t disappoint in 2020-2021. The Court heard cases involving the speech and association rights, in Americans for Prosperity Foundation v. Bonta, involving a challenge to California’s charitable donor-disclosure requirement; the speech right, in Mahanoy Area School District v. B.L., involving a challenge to a school’s suspension of a student for off-campus speech; and the free exercise right, in Fulton v. Philadelphia, involving a challenge to the city’s non-discrimination requirement for its government contractors. Kirti Datla will discuss general trends in the Court’s First Amendment jurisprudence, these cases, and the religious liberty cases related to COVID-19 restrictions that the Court decided on its “shadow docket.” Kirti authored an amicus brief for the State and Local Legal Center in Carney v. Adams—a challenge to Delaware’s partisan-balance requirements for its judiciary—while a senior associate at Hogan Lovells and is now the Director of Strategic Legal Advocacy at Earthjustice.
July 22; 12:00 PM CST Register here
Police practices featured front and center in multiple U.S. Supreme Court cases this term. Join Shay Dvoretzky, Skadden, Arps, Slate, Meagher & Flom, who argued a Fourth Amendment case involving the “community caretaking” exception, and David Gans, Director of the Civil Rights, Human Rights, and Citizenship Program at the Constitutional Accountability Center, which filed multiple amicus briefs in Fourth Amendment and qualified immunity cases this term, in a discussion of all the police cases. Topics range from Fourth Amendment searches and seizures to excessive force to local governments holding onto impounded vehicles after a bankruptcy stay has been filed.
July 29; 12:00 PM CST Register here
