Wisconsin Supreme Court Strikes Down Governor’s Successive Emergency Orders
This morning, March 31, 2021, the Wisconsin Supreme Court held that the Governor exceeded his authority under Wis. Stat. § 323.10 by issuing successive states of emergency based on the same public health emergency basis. Fabick v. Evers, 2021 WI 28. The Court held “that Wis. Stat. § 323.10’s duration-limiting language forbids the governor from declaring successive states of emergency on the same basis as a prior state of emergency, and that the governor may not reissue a new emergency declaration following legislative revocation of a state of emergency declared on the same basis.” Accordingly, the Court held that Executive Orders #82, #90, and #105 are void. Consequently, Emergency Order #1, which was issued under Executive Order #105 and established the Governor’s statewide mask mandate (set to expire April 5, 2021), is also void. Read the Court’s full decision here.
League files Amicus Brief in Right-of-Way Challenge
The League recently filed an amicus brief in Ullrich v. City of Neenah, a case before the Wisconsin Court of Appeals. In Ullrich, owners of property abutting dedicated right-of-way along Lake Winnebago sought to enjoin the City from constructing a multi-modal path running along Lake Winnebago in the dedicated right-of-way shown on the recorded plat but outside of the street’s existing footprint. Issues in the case involve whether statutory dedication of the right-of-way conveyed to the City a fee simple interest in the dedicated public right-of-way or just an easement for highway purposes, and whether the City could construct the path outside of the existing street footprint. The circuit court granted summary judgment in favor of the City, holding that the City could construct the path as a sidewalk under Wis. Stat. § 66.0907, which governs sidewalks, regardless of whether it has a fee simple interest or an easement for highway purposes. The League’s brief argues that statutory dedication conveys a fee simple interest and that regardless of how the City’s interest in the right-of-way is characterized, construction of the multi-modal path is an appropriate use of the dedicated right-of-way. A copy of the League’s brief is available here.
Alcohol Licensing Season is Approaching
Recent changes to case law and statutes are briefly summarized below:
Effective March 28, 2021, “Class B” liquor licensees can sell intoxicating liquor (which includes wine) by the glass for off-premise consumption so long as the container is closed with a “tamper evident seal.” Prior to enactment of 2021 Wis. Act 21, “Class B” licensees could only sell wine for off-premise consumption in the original package or container, and could, if the municipality had by ordinance opted in under Wis. Stat. § 125.51(3)(b), sell intoxicating liquor in the original package or container for off-premise consumption. The new law allows for sales of intoxicating liquor by the glass for off-premise consumption regardless of whether the municipality opts in. Different rules apply to a “Class B” license issued to a winery. Municipalities should review alcohol licensing ordinances with the municipal attorney to ensure they do not conflict with § 125.51(3) as amended. The full text of Act 21 is available here.

“Bowling Centers”
In City of Stoughton v. Erik J. Olson, 2020 WI App 69, 394 Wis 2d 325, 950 N.W.2d 852, the Wisconsin Court of Appeals held that the exemption for “bowling centers” in Wis. Stat. § 125.07(3)(a)3 – which allows underage individuals to be present in a bowling center establishment that is licensed to sell alcoholic beverages – does not exclude portions of a bowling center that are dedicated primarily to the sale or consumption of alcohol. A more detailed discussion of the case is available here.
U.S. Supreme Court Decision on 4th Amendment Seizure is Loss for Local Governments

Torres v. Madrid
The Fourth Amendment prohibits unreasonable seizures. A threshold question is whether something constitutes a “seizure” for purposes of the Fourth Amendment. In a recent U.S. Supreme court case, the Court addressed the question of whether a seizure occurs when an officer shoots someone who temporarily eludes capture after the shooting. The Court answered the question with a yes, holding 5-3 that for purposes of the Fourth Amendment, “the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.” Torres v. Madrid, 592 U.S. ___ , No. 19-292 (March 25, 2021).
The Court considered the following facts in the light most favorable to the Petitioner, Roxanne Torres. New Mexico State Police arrived at an Albuquerque apartment complex to execute an arrest warrant and approached Torres, who was standing near a vehicle. Although the officers did not believe Torres to be the subject of the warrant, they attempted to speak with her as she got into the driver’s seat. Torres believed the officers were carjackers and hit the gas to escape. The officers fired their service pistols 13 times to stop Torres, striking her twice. Torres escaped and drove to a hospital 75 miles away but was airlifted back to an Albuquerque hospital where police arrested her the next day. Torres sued the police officers for damages under 42 U.S.C. § 1983 claiming that they used excessive force against her and that the shooting constituted an unreasonable seizure under the Fourth Amendment. The district court granted summary judgment to the officers. The Court of Appeals affirmed, dismissing the case and holding that “a suspect’s continued flight after being shot by police negates a Fourth Amendment excessive-force claim.” The U.S. Supreme Court vacated the court of appeals decision and sent the case back for further proceedings consistent with its opinion.  

The Court emphasized that all it was deciding was that the officers seized Torres by shooting her with intent to restrain her movement. The Court left open on remand any questions regarding the reasonableness of the seizure, the damages caused by the seizure, and the officers’ entitlement to qualified immunity. Read the decision here.
Gateway City Church v. Newsom
On February 26, 2021, the United States Supreme Court granted a preliminary injunction striking down a Santa Clara County, CA order banning indoor religious services due to COVID-19. The case, Gateway City Church v. Newsom, is currently pending before the Ninth Circuit Court of Appeals. The Supreme Court held that the Ninth Circuit’s failure to grant injunctive relief was erroneous based on the Court’s prior decision in South Bay United Pentecostal Church v. Newsom, 592 U.S. ____, No. 20A136 (20-746) (February 5, 2021).
Wisconsin Supreme Court Grants Review in 3 Cases of Interest to Local Governments
1.    City of Waukesha v. City of Waukesha Board of Review, 2020 WI App 77. The Wisconsin Supreme Court will review a court of appeals decision holding that only a taxpayer and not a municipality has the right to appeal a Board of Review decision.
2.    State ex rel Nudo Holdings LLC v. Board of Review for Kenosha, 2020 WI APP 78. The Wisconsin Supreme Court will review a court of appeals decision holding that Kenosha could assess undeveloped property as residential, when the owner was unable to show any actual agricultural use of the land. A summary of the court of appeals decision in this case, written by Attorney Michael May of Boardman Clark, is available here.
3.    Friends of Frame Park v. City of Waukesha, 2020 WI App 61. The Wisconsin Supreme Court will review a court of appeals decision holding that attorney's fees may be awarded to a prevailing party under Wisconsin’s Public Records law even where the commencement of an action was not a cause of the disclosure of public records. Although it acknowledged the test which has been applied to determine whether attorney's fees may be awarded is whether the commencement of an action was a cause of the disclosure of the records, the court of appeals held that a different test was to be applied in this case.

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