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Supreme Court Approves Ceremonial Invocations With Sectarian Content Before Legislative Meetings

In Town of Greece v. Galloway, the United States Supreme Court recently clarified the acceptable content of invocations delivered before legislative meetings. Whether such invocations could include sectarian references had become a hotly debated topic, particularly at the municipal or local level of government. The Supreme Court concluded in Town of Greece that invocations before legislative bodies generally may include sectarian content, including references to specific religious figures and messages, as long as the practice is non-discriminatory and essentially ceremonial. While the Court’s decision does not abrogate all limits on legislative prayer, the decision recognizes the general acceptability of sectarian invocations, and the decision thereby lessens the need for individualized case-by-case adjudications of local practices.

The Supreme Court has long construed the Establishment Clause in the United States Constitution to prohibit governmental practices that give the appearance of religious endorsement. Governing bodies have grappled with this proposition as it applies to invocations before legislative meetings. The Supreme Court, in Marsh v. Chambers, decided in 1983 that a state legislature’s practice of opening its sessions with a prayer delivered by a chaplain did not violate the Establishment Clause because the practice had long been understood as compatible with the Establishment Clause. The Court concluded that legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society.

Since the Supreme Court’s decision in Marsh v. Chambers, uncertainty has persisted as to the constitutionality of specific invocation practices. In the Town of Greece case, opponents of legislative prayer argued that the Marsh decision did not approve of prayers containing sectarian language or themes. The opponents of the practice at issue in Town of Greece further argued that the setting and conduct of local governmental meetings is significantly different than at the state and federal level. At the local level, more immediate social pressure may be felt that forces nonadherents to participate in, or at least tolerate, sectarian religious endorsement. The opponents of legislative prayer specifically expressed concern about offending representatives who sponsor prayer and who will also vote on matters that citizens bring before the legislative body.

The Supreme Court decided in Town of Greece that legislative invocations do not have to be non-sectarian, or unidentifiable with any one religion. According to the Court, to require that invocations be non-sectarian would force the legislatures that sponsor prayers, and the courts that are asked to determine the propriety of such prayers, to act as supervisors and censors of religious speech. This would involve government in religious matters to a far greater degree than the practice under review, which neither edited nor approved prayers in advance, and did not criticize their content after the fact.

In rejecting the claim that legislative prayer must always be non-sectarian, the Supreme Court expressly denied that no restraints remain on the content of such prayers. The relevant constraint, according to the Court, derives from the place of legislative prayer at the opening of legislative sessions, where it is meant to lend gravity and reflect values long part of the Nation’s heritage. Prayer that is solemn and respectful in tone, and that invites lawmakers to reflect upon shared ideals and common ends before they undertake the fractious business of governing, serves that legitimate solemnizing purpose. However, if the course and practice [of legislative prayer] over time shows that the invocations denigrate non-believers or religious minorities, threaten damnation, or preach conversion, many present may consider the payer to fall short of the desire to elevate the purpose of the occasion and to unite law makers in their common effort.” That situation would present a different case than the one before the Supreme Court in Town of Greece.

Ceremonial prayers before legislative meetings, even those that include specific sectarian references, therefore do not automatically violate the Establishment Clause of the Constitution. Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation, according to the Supreme Court in Town of Greece. So long as a legislative body maintains a policy of non-discrimination, moreover, the Constitution does not require local government officials to search beyond their borders for non-Christian prayer-givers in an effort to achieve religious balancing.

While approving sectarian legislative prayer, the Supreme Court implicitly rejected the heightened concern about coercion at the local level. Considered against the backdrop of historical practice, the Court concluded that legislative prayer is not deemed by reasonable observers to be coercive, but rather it is perceived as an accepted part of our heritage and tradition, with the purpose to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens.

The Supreme Court’s coercion analysis emphasized that the intended audience for legislative invocations is not the public, but lawmakers themselves. The Court stated that its analysis might well be different if the public was directed to participate in legislative prayers, or if dissidents were singled out for opprobrium, or if legislators indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity. For this reason, prayer delivered during the ceremonial portion” of legislative meetings, rather than during the deliberative portion of meetings, remains an important consideration. In such circumstances, the Court concluded that prayer before meetings is acceptable for its permissible ceremonial purpose.

The Supreme Court’s decision in Town of Greece will likely reduce the amount of conflict, including litigation, about the practice and content of legislative invocations. The issue is not completely resolved in all cases, however, if the practice is abused so as to promote or encourage religious participation. The Court held that legislative prayer is not prohibited simply because it includes sectarian references. Such practices, however, should still emphasize the ceremonial aspects of the practice, without encouraging or promoting specific sectarian participation or beliefs. The Court, nonetheless, has made clear that legislative invocations that include sectarian references are not thereby automatically unconstitutional.

— Richard L. Bolton

Deadline for Objecting to Tax Assessment May Not Apply When Prior Year’s Objection Is Pending

The process for objecting to real estate tax assessments is statutory and detailed. Generally, the property owner must object to the assessment in spring after the tax assessor files the assessment roll with the local government. At least 48 hours before the first meeting of the board of review, the owner must notify the clerk of his intention to file an objection; otherwise the right to appeal has been waived. There is an exception, however, where the taxpayer appealed the same assessed amount last year and the appeal is still pending. Walgreen Co. v. City of Oshkosh, 2013AP1610 (Ct. App. April 2, 2014) (recommended for publication).

Tax assessors submit their assessment rolls to local governments no later than April for counties and May for cities and villages. The clerk must then publish notice at least 15 days in advance of when the roll will first be open for examination. Section 70.45, Stats. If the assessed value of a parcel has changed from the previous year, the tax payer must be notified at least 15 days in advance of the time and place of the first board of review meeting. Section 70.36, Stats. If there has been no change, the clerk does not have to send notice to the taxpayer. In order to preserve the right to appeal, the taxpayer must give notice either orally or in writing at least 48 hours of his intent to appeal. The actual appeal must be filed within the first two hours of the board’s first meeting. The timely filing of an objection to the assessment is usually a condition of filing an action for excessive assessment.

In Walgreen, the Wisconsin Court of Appeals held that a timely objection is not required under narrow circumstances. The exception applies only when all three of the following criteria are met: (a) the taxpayer filed a procedurally correct objection the prior year; (b) the assessed value did not change from the previous year; and © the objection from the previous year has not received a final determination. The exception was first developed in Duesterbeck v. Town of Koshkonong, 2000 WI App. 6, 232 Wis. 2d 16, 605 N.W.2d 904, which based it on the principles behind the dual notice requirements imposed on the government and the tax payer. The court reasoned that, since the taxpayer is already aware of the assessed value because of the prior year’s notice and since the government is already aware that the taxpayer objects to the amount because he is still pursuing the previous year’s objection, the purpose of the notice requirement has been served.

The prior year’s objection is not deemed to be finally resolved unless all administrative and judicial appeal rights have been exhausted, which includes the expiration of any deadlines for appeals. Moreover, the objection from the previous year must still be pending when the deadline for an objection in the current year passes. The court in Walgreen noted another recent decision in Northbrook Wisconsin LLC v. City of Niagara 2014 WI App 22, in which the court held that the exception was inapplicable because the prior year’s objection was settled through informal negotiations long before the board of review meeting for the current year.

The court in Walgreen reversed the summary judgment granted to the city and remanded the case to the circuit court to determine whether the third criterion for the Duesterbeck exception was met. The record was undisputed that Walgreen met the first two. However, the record was devoid of evidence from either side as to the status of the prior year’s objection.

— Mark J. Steichen

Public Records Law Requires Release of Email Senders’ Names and Email Addresses

In The John K. MacIver Institute For Public Policy, Inc. v. Jon Erpenbach, Appeal No. 2013AP1187 (decided April 9, 2014), the Wisconsin Court of Appeals held that the names and email addresses of email senders could not be redacted in a response to an open records request.

The open records request asked for emails sent to Senator Jon Erpenbach on Act 10, the law which restricted collective bargaining for most governmental bodies. The Senator responded to the open records request but redacted the names and email addresses of the senders. The requester brought a mandamus action to require the Senator to release the emails without redacting the names and email addresses. The requestor subsequently modified its request to ask for unredacted emails sent from state and local government email accounts.

The Senator argued that his decision to redact identifying information in the emails was in compliance with the custom and practice of the Wisconsin Senate, and that under the Wisconsin Constitution a court may not review decisions made in accordance with Senate rules. The court rejected this argument indicating that the open records law applies to elected officials generally, and no special exemption exists for individual state legislators or houses of the legislature.

The Senator also argued that the names and email addresses should not be released because the information sought is purely personal” and therefore not subject to disclosure under Schill v. Wisconsin Rapids School District, 2010 WI 86, 327 Wis. 2d 572, 786 N.W.2d 177. The Senator also asserted that the public interest in nondisclosure of the information outweighed the public interest in disclosure.

In considering this argument, the court discussed the standard for reviewing a determination under the records law. When responding to an open records request, a records custodian is first to determine whether a requested item is a record and whether any statutory or common law exceptions to disclosure apply. If an item is determined to be a record and no exceptions apply, the custodian must then conduct a balancing test to weigh the competing interests involved and determine whether permitting inspection would result in harm to the public interest which outweighs the public interest in allowing inspection. The custodian must specify reasons for nondisclosure. If the custodian’s decision is challenged, a court is to make its own independent decision regarding these matters. If the custodian states no reason or insufficient reasons for refusing to disclose information, the court should order the disclosure of the information. The custodian’s decision on disclosure is entitled to no deference. According to the court, “[i]t is the burden of the party seeking nondisclosure to show that public interests favoring secrecy outweigh those favoring disclosure.’”

Under this standard of review, the court found that the Senator’s reasons for redacting the names and addresses of email senders were insufficient, and that the information should be released. The emails which were sent to an elected lawmaker for the purpose of influencing the lawmaker’s position on public policy were undeniably public records. While the Senator argued that the names and email addresses were purely personal,” the court disagreed, stating that the public has a strong interest in understanding who is attempting to influence public policy, from where, and for what purpose.

The Senator also argued that the public interest justified redacting this type of identifying information in order to respect senders’ privacy, rights to free speech, and rights to petition the government. The Senator argued that releasing this information would have a chilling effect” on future citizen communications. The court noted that under the United States Supreme Court’s recent decision in Doe v. Reed, 561 U.S. 186, 130 S. Ct. 2811 (2010), the release of a public record could be enjoined if those resisting disclosure can show a reasonable probability that the disclosure will subject them to threats, harassment, or reprisals. However, the court found that in this case the Senator did not sufficiently establish a reasonable probability of harm from disclosure. It was not enough that the Senator showed a possibility of harm from disclosure.

In response to the Senator’s argument that disclosure of the e‑mail senders’ identifying information will chill” citizens from communicating with legislators, the judges offered different perspectives. Judge Gundrum, the opinion’s author, noted that nothing would prevent citizens from sharing their views with public officials via phone or in-person communication, two routinely utilized methods which allow citizens to share their views with a public official without necessarily creating a public record related to those views.… If a citizen has a genuine concern about his or her views becoming public, he or she need not express such views through means which create a public record.”

Judge Brown, however, was more concerned about the impact that this case could have on communications with legislators. My fear is that citizens who want to express an opinion to their own legislators, but who want their communications to remain private, will either refrain from voicing their opinions or will use the anonymous social media that is the antithesis of civil discourse. It is no answer that these people can pick up the phone and call their legislators or see them personally. Access is often difficult. And it bothers me that a citizen who wishes his or her views to remain private is limited in the kind of communication to be used.” Yet even with this concern, he concluded that redaction should not be allowed. “[A]llowing the redaction in this particular case would lead down the path where the risk of citizen suppression and harassment would be in the eyes of the beholder and the validity of the custodian’s rationale would be either praised or castigated depending on what political party the custodian happened to belong to. Every controversial redaction would then draw the courts into the political fray. Outcomes would depend upon, or at least would be seen to depend upon, politics. That would be a disaster.”

The court of appeals concluded by finding that the Senator had not met his burden of establishing that the public interest in nondisclosure of the redacted information outweighs the significant public interest in disclosure. The court remanded the case to the circuit court with directions to order the legislator to release the requested records without redaction of identifying information. The circuit court was also directed to determine the appropriate costs and fees to be awarded the requester under Wis. Stat. §19.37(2)(a).

— Lawrie J. Kobza

Raze Order Enjoined Where City’s Grounds Were Pretextual

The Wisconsin Court of Appeals has affirmed an injunction barring the enforcement of a raze order. Although the decision is not recommended for publication, it tells a cautionary tale of abuse of a municipality’s authority to condemn buildings on asserted health and safety grounds. Nabham v. City of Beloit, 2012AP1997 (April 24, 2014) (not recommended for publication).

Nabham owned a building constructed in the 1900s. It comprised a store on the first floor and five apartments on the second floor. On March 15, 2011, the city fire inspector conducted an inspection, cited Nabham for substantial code violations and ordered the following upgrades: a new automatic fire alarm system and sprinkler system, a new bathroom for one of the apartments and electrical upgrades for each of the apartments. On June 2, 2011, the city issued an order pursuant to section 66.0413 requiring that Nabham raze the building within 30 days.

A municipality has the authority to order a building to be razed when it:

is so old, dilapidated, or out of repair and consequently dangerous, unsafe, unsanitary or otherwise unfit for human habitation and unreasonable to repair.” Wis. Stat. § 66.0413(1)(b)

Repairs are presumed to be unreasonable if their cost exceeds 50 percent of the assessed value of the building.

Nabham sought a restraining order against the city pursuant to section 66.413(1)(h). The circuit court found that the city’s assertion that the cost of repairs was unreasonable was unfounded and a pretext for having the building demolished without having to pay compensation. The court of appeals affirmed.

There were three factors at issue in determining whether the cost of repairs was reasonable: (a) what repairs were required; (b) whether the assessed value was appropriate; and © what the real motivation was for the raze order. With regard to the repairs, the evidence showed that the city had inspected the building regularly since 1997 and that rental permits had been issued every year. An inspection in November 2010 found only minor code violations. The fire inspector’s report of substantial code violations came just four months later. The circuit court found it mysterious that these violations had allegedly existed for years when the city had no explanation for why these defects had not been found earlier.

The fire inspector admitted at trial that there had been no changes to the building and no changes to the city’s building code that would have triggered a requirement for the electrical upgrades. A rental permit, which would not have been issued if there were uncorrected code violations, had been issued on February 14, 2011. She testified that the property deteriorated so much in just the intervening month that the electrical upgrades were needed.

The plumbing inspector testified that he had found violations during a May 19, 2011 inspection but had not issued any citations because he was told the raze order was coming. He explained the repairs for the violations he found during that inspection would have cost $2,000 at most. He admitted that the building was not required to have the fire alarm or sprinkler systems or the new bathroom installed prior to the raze order. The city building inspector testified that the estimate of the repair costs was not prepared until after the raze order was issued. He was not asked to price the cost of the repairs required by the raze order until after the order was issued. The estimate for those repairs was $72,500.

With respect to the assessed value of the building, the city assessor testified that in 2010 the assessment was reduced to $49,300, a 50% decrease. He based it on a drive-by exterior view he had done three years earlier and the deterioration in the real estate market. Only three other properties in the city had their assessments reduced by 50% between 2007 and 2011. The circuit court found that the city’s motive was to reduce the value to an amount where the city could claim that the repairs would exceed 50% of the assessed value.

The circuit court concluded that the alleged violations, the repairs required by the raze order and the decrease in the assessed value were mere pretexts. The court noted that the fire inspector’s report from the March 15th inspection included references to Nabham’s appearance as a person of Middle East ethnicity, that he spoke with a heavy accent and that the television in the store was tuned to something in Arabic. The court appeals deferred to the circuit court’s factual findings and evaluation of the credibility of the witnesses and held that the record supported those findings.

— Mark J. Steichen

No Taking Occurs Where Government Takes No Affirmative Action

The torrential rain fall in June 2008 led to the overflow of Lake Delton with the dramatic erosion of a channel sweeping way houses that made national news. Almost four years later, the Wisconsin Court of Appeals decided that the Village of Lake Delton had not taken the homeowners’ properties and did not owe them just compensation. Fromm, et al. v. Village of Lake Delton, 2013AP14 (Ct. App. 4/3/14) (recommended for publication).

A dam was built across Delton Creek in 1927 creating Lake Delton. The highest elevation of the dam was approximately 3 – 12″ lower than part of the Fromms’ land that bordered the lake, which left a dip or what is described as a saddle” area. The dam was constructed with floodgates that opened to a maximum height of 6 feet. The village acquired ownership of the dam in 1994. The only structural alteration it made to the dam since then was to reduce the maximum opening height of the floodgates to 4 feet.

On June 6 – 7, 2008, flood waters overtopped the Fromms’ property and eroded away a wall of the lake, eventually draining it entirely and taking the Fromms’ and other houses with it. The Fromms and neighbors brought an inverse condemnation action against the village under section 32.10, Wis. Stats. The circuit court granted summary judgment for the village and the plaintiffs appealed.

The court of appeals professed some difficulty identifying the precise basis for the Fromms’ claims and characterized the Fromms’ arguments as being: (a) that a governmental entity that controls a dam should be held liable per se for a taking when flooding occurs; and (b) that the village’s inaction in the face of knowledge of the lower elevation and its reduction of the maximum opening height of the flood gates constituted takings. The court quickly dismissed the first argument, holding that a taking must result from governmental action. Action can be in form of a physical occupation of private property or where regulations deprive a landowner of all or substantially all beneficial use of his property.

The Fromms argued that the two potential actions by the village were: (a) altering the floodgates; and (b) failing to act on the information that their property was below the highest elevation of the dam. The court dismissed the argument about the floodgates, because there was no evidence in the record that the flooding would have been averted if the original height of the gates had been left intact.

With respect to the failure to act on knowledge of the respective elevations, the court questioned whether the record supported the claim but assumed for purposes of argument that the village was on notice that there were no other locations along the rim of the lake that were substantially lower than the Fromms’ property and any other physical features of the land around the lake that would draw potential flooding away from their property. Even so, the court rejected the Fromms’ reliance on the recent condemnation decision in Brenner v. City of New Richmond, 2012 WI 98, 343 Wis.2d 320, 816 N.W.2d 291d. In Brenner, the city extended a runway at its airport. It acquired avigation easements for two properties in the FAA designated flight paths, but planes regularly flew over adjoining parcels. While the city did not have direct control over the pilots, the court in that case held that the city was in a better position than the landowners to reign in the overflights and that the flights were a result of the city’s action of expanding its runway. The court in Fromm refused to accept an analogy, characterizing Brenner as imposing liability for the city’s failure to stop the overflights.

In short, Fromm continues to draw a strong line between government action and inaction as forming a takings action under the U.S. or Wisconsin Constitutions.

— Mark J. Steichen

This newsletter is published and distributed for informational pur- poses only. It does not offer legal advice with respect to particular situations, and does not purport to be a complete treatment of the legal issues surrounding any topic. Because your situation may differ from those described in this Newsletter, you should not rely solely on this information in making legal decisions.

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