Wal-Mart in Jefferson
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These are the January 27 filings of the Coalition for a Better Jefferson:
- John Foust, goJefferson.com Webmaster DAVID R. HALBROOKS January 27, 2006 Honorable John M. Ullsvik, Branch I Re: Coalition for a Better Jefferson et. al v. City of Jefferson et. al Case No. 05CV582 Dear Judge Ullsvik: Enclosed please find the plaintiffs’ brief in response to defendants’ motion to dismiss and affidavit, due before the court this day. Also enclosed please find plaintiffs’ motion to strike defendants’ supplemental pleadings which we are filing in response to the defendants’ documents filed before the court on January 24, 2006 and received by this office on January 25, 2006. The defendants will be served copies of these documents this day. Thank you very much for your attention to this matter. Very truly yours, David R. Halbrooks Attorney at Law State Bar #1007375 DRH/dd Enclosures cc: Midwest Environmental Advocates STATE OF WISCONSIN CIRCUIT COURT JEFFERSON COUNTYCOALITION FOR A BETTER JEFFERSON PATTI LORBECKI, a qualified elector of the City of Jefferson Plaintiffs, v. CITY OF JEFFERSON AND COMMON COUNCIL OF THE CITY OF JEFFERSON Defendants,
The plaintiffs, Coalition for a Better Jefferson, and Patti Lorbecki by its attorneys, David R. Halbrooks, and Midwest Environmental Advocates, Inc. hereby move the court for an order striking the defendants’ supplemental pleadings filed on January 24, 2006. As grounds for this motion, the plaintiffs received defendants supplemental pleadings which were not due or requested by the court, on January 25, 2006. Despite the assertion by the defendants that the plaintiffs brief was due on January 11, 2006, the plaintiffs brief was not actually due until January 27, 2006. The defendants have now filed a substantial amount of new material which the court should deny. In the alternative, if the court chooses to receive defendants’ new brief which raises new issues at this time, the plaintiffs request an additional 30 days to consider the new filing with the court to consider a new hearing date commensurate with a new briefing schedule. COALITION FOR A BETTER JEFFERSON v. CITY OF JEFFERSON Dated at Milwaukee, Wisconsin, this day of , 2006. Respectfully submitted ________________________________ David R. Halbrooks _______________________________ Melissa Scanlan (WI Bar No. 1034783) STATE OF WISCONSIN CIRCUIT COURT JEFFERSON COUNTYCOALITION FOR A BETTER JEFFERSON and PATTI LORBECKI, a qualified elector of the City of Jefferson Plaintiffs, v. Case No. 05CV582 Other extraordinary writ CITY OF JEFFERSON AND Case Code #30707 COMMON COUNCIL OF THE CITY OF JEFFERSON Defendants, Affidavit of David Halbrooks In Support of the Petitioner’s Brief in Response to Defendant’s Motion to Dismiss STATE OF WISCONSIN ) )ss MILWAUKEE COUNTY ) David Halbrooks, being signed and sworn and upon personal knowledge, states as follows: 1) On November 14, 2005 I filed a Complaint, Summons and Motion for a Temporary Injunction on behalf of the Coalition for a Better Jefferson. 2) On December 19, 2006 I filed a complaint petitioning for a Court for a Writ of Mandamus regarding direct legislation in the City of Jefferson. 3) Attached to the Complaint was a Motion for a Temporary Injunction. The Clerk of Courts would not accept the filing without a date and time filled in on the Motion. 4) The matter was assigned to a different court and the Clerk consulted with the new Judge, as well as the Honorable Judge Ullsvik. 5) I was informed by the Clerk of Courts that the matter would be reassigned to the Honorable Judge Ullsvik under the above referenced caption. 6) I was concerned that the new matter and the previous matter were dissimilar enough that the new matter should be a separate case. The Court disagreed. 7) I inquired as to whether I should write the word “Amended” on the pleadings given that there was a Summons and Complaint attached to the documents. The Court indicated that such action would not be necessary as it understood the nature of the filings. 8) On December 22, 2005 the Court contacted me and provided a date for the hearing on the Motion for a Temporary Injunction. Dated this ____ of January, 2006 _____________________________ David Halbrooks Sworn to before me and subscribed in my presence This _________ day of _______________, 2006 ______________________________________ Notary Public, State of Wisconsin My commission _________________________ STATE OF WISCONSIN CIRCUIT COURT JEFFERSON COUNTYCOALITION FOR A BETTER JEFFERSON and PATTI LORBECKI, a qualified elector of the City of Jefferson Plaintiffs, v. Case No. 05CV582 Other extraordinary writ CITY OF JEFFERSON AND Case Code #30707 COMMON COUNCIL OF THE CITY OF JEFFERSON Defendants, BRIEF IN RESPONSE TO DEFENDANTS’ MOTION TO DISMISS Patti Lorbecki and the Coalition for a Better Jefferson (herein “the Coalition”), by and through their counsel, Midwest Environmental Advocates, Inc. and Attorney David Halbrooks, hereby submit this Brief in Response to Defendants’ Motion to Dismiss: I INTRODUCTION AND BACKGROUND Coalition for a Better Jefferson (herein “Coalition”) is an unincorporated association organized as a political group for a referendum pursuant to section 11.05, Stats. (Complaint ¶ 1). Patti Lorbecki is a member of the Coalition and a qualified elector of the City of Jefferson. (Complaint ¶ 2). On October 10, 2005, immediately after filing as a political group, the Coalition filed the Direct Legislation Petition. The Direct Legislation would require the Common Council to review environmental, traffic, community and infrastructure impact studies before annexing more than 15 acres of land. The Direct Legislation addresses the City’s review of annexation petitions, not the decision to accept or reject petitions. (John Rhiel Affidavit ¶¶ 7, 8, Exhibit 1). According to section 9.20, Stats., the Coalition needed to have signatures from fifteen percent (15%) of the number of voters in the last gubernatorial election, or roughly 307 signatures. On October 14, 2005, the Coalition offered for filing 456 signatures, on petitions attached to the direct legislation, to the City of Jefferson City Clerk, Tanya NP Stewart. On October 21, 2005, Jefferson City Clerk Tanya NP Stewart certified the petitions as to sufficiency and form and referred the matter to the City of Jefferson Common Council. (John Rhiel Affidavit ¶¶ 6, 12, 13, Exhibit 2). Pursuant to section 9.20, Stats., the Common Council then had 30 days to either vote to adopt the direct legislation or set the matter for referendum. See Wis. Stat. § 9.20(4). On November 1, 2005, the Jefferson Common Council conducted a first reading of the direct legislation petition and set a public hearing for November 15, 2005. After the direct legislation petition was filed with the City Clerk, land owners Roger W. and Beverly A. Sherman, and William and Alice Pinnow submitted the 22-acre annexation proposal for a third time. The City of Jefferson Common Council scheduled the first reading of the annexation proposal for the same November 15, 2005, Common Council meeting as was assigned the direct legislation vote. (John Rhiel Affidavit ¶ 11, 17). On November 15, 2005, the Common Council voted 8-0 to terminate the direct legislation petition without sending the proposed legislation to a referendum vote. (John Rhiel Affidavit ¶ 15). On December 19, 2005, the Coalition filed a Writ of Mandamus action in Jefferson County Circuit Court. The Complaint demonstrates the direct legislation’s legal sufficiency and the Common Council’s failure to abide by requirements in section 9.20, Stats., to approve the legislation or send it to a referendum. (Compliant ¶ 15-17). With the Complaint, Plaintiffs filed a motion for a temporary injunction, citing the irreparable harm that would stem from Common Council’s approval of annexation petitions of more than 15 acres, while the legality of their actions are being reviewed. On December 28, 2005 the Court granted the Coalition’s Motion for Temporary Injunction after hearing arguments from both parties. On December 28, 2005 Defendants submitted a Motion to Dismiss and a Brief in Support of Motion to Dismiss. The Coalition, through their attorneys David Halbrooks and Midwest Environmental Advocates, Inc., now reply to the Defendant’s Brief in Support of their Motion to Dismiss: II. DEFENDANTS FAIL TO ALLEGE PROCEDURAL FLAWS THAT SUPPORT A MOTION TO DISMISS THE PLAINTIFFS WRIT OF MANDMAUS ACTION. Defendants claim that the December 19 th, 2005 Supplemental Pleading does not reference the original Complaint, nor does it state “Amended” on the document. Additionally, Defendants claim there is no motion to supplement the pleadings under section 802.09(4), Stats.. (Def. Brief, p. 1). First, Defendants fail to address section 802.09(1), Stats., which allows amendments as a matter of right within six (6) months of filing. Wis. Stat. § 802.09(1). The Coalition’s original Complaint, Summons and Motion for a Temporary Injunction was filed on November 14, 2005, and Plaintiffs are given the right to amend the pleadings “once as a matter of course at any time within 6 months.” (Halbrooks Affidavit ¶1); Wis. Stat. § 802.09(1). The December 19, 2005 amended complaint was within six (6) months of the original motion for a temporary injunction. Second, all omissions are explained by the attachment of the December 19, 2005 Complaint for a Writ of Mandamus, and the November 14, 2005 action for an injunction at the time of filing. On December 19 th, 2005 Plaintiff’s Attorneys David Halbrooks and Brent Denzin (herein “Plaintiff’s attorneys”) filed the Writ of Mandamus action as a separate Complaint. (Halbrooks Affidavit ¶¶ 2-6). Given the specific nature of the Mandamus action, the Coalition believed that the matter was a separate case. The Writ of Mandamus Compliant made no reference to the previous complaint because it was intended to be a separate Complaint. (Halbrooks Affidavit ¶¶ 1-6). On December 19, 2005 Plaintiff’s attorneys were directed by Clerk of Courts and the Honorable Judge Ullsvik that the Complaint should be combined with the November 14 th case that remained open. (Halbrooks Affidavit ¶¶ 2-5). Plaintiffs’ attorneys argued that the Complaint was drafted to be a new Complaint, however the Court decided that the Complaint should be considered an amendment to the previous case given the similar subject matter. (Halbrooks Affidavit ¶ 6). Plaintiff’s attorneys accepted the Court’s decision to file the pleadings as a supplemental complaint. Unfortunately, the Court’s decision was made after the Complaint had been filed and the Coalition did not have an opportunity to reprint captions or file a Motion to supplement the pleadings. In fact, Attorney Halbrooks queried the court as to whether the word “Amended” should be added to the pleading. The court indicated that it understood the nature of the filing. (Halbrooks Affidavit ¶ 6). Given Plaintiff’s attorneys good faith effort to follow the Court’s decision to combine the Writ of Mandamus action with the November 14 th, 2005 action, Plaintiffs should not be penalized for not changing the caption when it appeared to be unnecessary to do so. Lastly, Defendants argue that “contrary to law” the Supplemental pleadings were never served to the City Attorney as required under subsection 801.14(1), Stats.. This occurred due simply because, until Plaintiffs met with the Court, Plaintiff’s attorneys believed the matter to be a new complaint and consequently directed the process server to serve the City Clerk as required by law. As such, after the Court directed that the matter should become a supplemental pleading it would have been appropriate to directly serve the City Attorney at his private office. However, Plaintiff’s attorneys contend that the service of what was purportedly a new complaint at the City offices is not dispositive, and is, if anything, harmless. Additionally, the City Attorney obtained a copy of the pleadings from the Court before the Court authorized Plaintiffs’ Attorneys to serve the pleadings. All other filings have been served on the City Attorney at his private office and will continue to be for the duration of the case. III. THE COALITION HAS NO LEGAL OBLIGATION TO JOIN ANY PROPERTY OWNERS TO THE DECEMBER 19, 2005 WRIT OF MANDMAUS ACTION In their Brief in Support of Motion to Dismiss, Defendants argue that the Coalition violated section 803.03(1), Stats., requirements by not joining the Pinnows, the Shermans, St. Coletta of Wisconsin and County of Jefferson in the action (herein “property owners”). (Def. Brief, p. 3, 4). The Pinnows and the Shermans are property owners that filed an annexation petition for their 22-acre property on or around October 28, 2005. (Stewart Affidavit ¶ 13, Ex. J). St. Coletta of Wisconsin is a property owner that filed an annexation petition for approximately 288 acres on or around December 13, 2005. (Stewart Affidavit ¶24, Ex U). Jefferson County controls 60 acres of land that is subject of an annexation petition filed on or around May 4, 2005. (Stewart Aff. ¶ 26, Ex. W). Defendants include parties, such as the St. Coletta of Wisconsin, that are not currently affected by the December 28, 2005 injunction regarding annexation petitions for more than 15 acres of land. The Defendant’s argument does not accurately reflect the legal standard for joining necessary parties. See Wis. Stat. § 803.03(1); See Dairyland Greyhound Park, Inc. v. McCallum, 258 Wis. 2d 210, 219; 655 N.W.2d 474 (Ct. App. 2002), cert. denied 258 Wis. 2d 110 (2002). Section 803.03(1), Stats., does not require the Coalition to join property owners in its Writ of Mandamus action against the City of Jefferson and the Common Council of the City of Jefferson because the property owners are not “necessary parties.” See Dairyland Greyhound Park, Inc., 258 Wis. 2d at 219. Even more, any indirect interest held by property owners is adequately represented by the City’s defense of their decision to deny the direct legislation. See Id. at 225. Section 803.03(1), Stats., requires that a “person shall be joined as a party in the action if: a) In the person’s absence complete relief cannot be accorded among those already parties; or b) The person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may: 1) As a practical matter impair or impede the person’s ability to protect that interest; or 2 ) Leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligation by reason of his or her claimed interest.” Wis. Stat. § 803.03(1). As the Court of Appeals in Dairyland Greyhound Park, Inc. v. McCallum notes, this standard creates a two-part test. Dairyland Greyhound Park, Inc., 258 Wis.2d. at 219. First, the party must have an “interest” such that they are a “necessary” party under subsection 803.03(1), Stats.. Id. Second, if the party is necessary, the party must be “so situated that the disposition of the action in the [party’s] absence may. . . as a practical matter impair or impeded [their] ability to protect that interest. Id at 225 (citing Wis. Stat. § 803.03(1)(b)(1)). Due to the nature of the mandamus claim, there are no property owners that are “necessary” in this action. Furthermore, even if some interest existed, the property owners are not situated in manner that would impede their ability to protect their interest if the case is decided in their absence. Mandamus is a writ issued by the court to “compel compliance with a plain legal duty.” Mt. Horeb Community Alert v. Village of Mt. Horeb, 263 Wis. 2d 544, 552;665 N.W.2d 229, 233(2003); State ex. rel. Althouse v. City of Madison, 79 Wis. 2d 97, 105-06, 255 N.W.2d 449 (1977). The writ of mandamus in this case would to compel the Common Council to take appropriate action on the proposed direct legislation. Property owners have no connection to the Common Council’s “legal duty” with regard to direct legislation and therefore fail to meet any of the criteria for “indispensable” parties. First, the property owners do not have a direct “interest” in the outcome of the case and are, therefore, not “necessary.” See Dairyland Greyhound Park, Inc., 258 Wis. 2d at 219-225. The Wisconsin Supreme Court uses the same analysis for deciding whether parties can intervene as of right, pursuant to section 803.09(1), Stats., as it does to decide whether the parties are “necessary” parties, pursuant to section 803.03(1), Stats.. See City of Madison v. Wisconsin Empl. Rels. Comm'n , 234 Wis. 2d 550, 610 N.W.2d 94 (2000). “Interest” as used in sections 803.03 and 803.09, Stats., is limited to “interest[s] of such direct and immediate character that the [party] will either gain or lose by the direct operation of the judgment.” City of Madison, 234 Wis. 2d at 558, n.9 (citing Lodge 78 ofthe International Ass'n of Machinists v. Nickel, 20 Wis. 2d 42, 46; 121 N.W.2d 297 (1963). “One whose interest is indirect cannot intervene as a matter of right.” Lodge 78 ofthe International Ass'n of Machinists,20 Wis. 2d at 46 (emphasis added). The property owners will not “gain or lose” by having the Court order the Common Council to send the direct legislation to a referendum and, therefore, they have no “interest” in the case. Furthermore, even if any “interest” does exist, it is “indirect” and therefore not within the definition of a “necessary” party. While the substance of the direct legislation may or may not ultimately affect the landowner’s interest in petitioning for annexation, this interest is beyond the scope of this action. Again, the mandamus action is limited to the Common Council’s decision regarding a possible referendum, and landowners will not gain or lose anything by sending the legislation to voters. Without a proper interest in the outcome of the mandamus action, the landowners are not necessary. Dairyland Greyhound Park, Inc., 258 Wis. 2d. at 224-25. Second, even if the parties were considered “necessary,” they are not “so situated that the disposition of the action in [their] absence may. . . as a practical matter impair or impede [their] ability to protect this interest.” Wis. Stat. § 803.03(1)(b); See also Dairyland Greyhound Inc., 258 Wis. 2d at 225. The City is adequately representing any possible interest property owners have in the Common Council’s decision to deny a referendum vote on the direct legislation. The landowners are not in any better position than the City to argue that the City’s decision to deny the direct legislation was lawful. Mandamus concerns the Common Council’s plain legal duty, and the Common Council is best positioned to argue that they have not violated their legal duty under section 9.20(3), Stats.. See Wis. Stat. § 9.20(3). The landowners do not have a direct interest in the outcome of the mandamus action and, even if an “interest” existed, the City’s defense is adequate to protect the landowner’s interest in their absence. Therefore, the Defendants have not stated proper grounds for requiring the Coalition to join the landowners in the mandamus action. IV. THE COALITION WAS NOT REQUIRED TO SUBMIT NOTICE OF CLAIM, PURSUANT TO SECTION 893.80(1) OF THE WISCONSIN STATUTES. Defendants argue that according to section 893.80(1), Stats., the Coalition is required to file a notice of claim. (Def. Brief, p. 4). Defendants argue that consequently the Coalition’s mandamus claim should be dismissed for lack of jurisdiction. However, Defendants’ arguments do not reflect the legal standards for notice of claim. The notice of claim requirement, pursuant to section 893.80(1), Stats., does not apply to actions such as the Coalition’s writ of mandamus action. See Gillen v. City of Neenah, 219 Wis. 2d 806, 827; 580 N.W.2d 628 (1998); State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 596, 547 N.W.2d 587 (1996). If the specific elements and purpose of the action conflict with the general requirement to provide notice of the claim pursuant to section 893.80(1), Stats., then the Court has recognized exceptions to the notice requirement. See Id. First, the court recognizes specific conflicts in public records and open meetings writ of mandamus actions. State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d at 596. In State ex rel. Auchinleck , the Wisconsin Supreme Court held that mandamus actions for alleged public records and open meetings violations were exempt from the general section 893.80(1), Stats., notice requirements due to the conflict that exists between their underlying policies. See Id. Public record and open meeting mandamus actions differ from torts and other claims requiring notice because the municipality has control over whether a suit will be filed based on its actions and on-going notice that a decision to refuse access to public records and open meetings raises the possibility of a challenge. Id. The municipality has time to contemplate the legal issues before taking the action and, therefore, does not need an additional 120 day notice period. Id. Furthermore, the 120-day delay for a notice of claim goes against the specific timing requirements in the section 19.35(4), Stats., of the public records law. State ex rel. Auchinleck, 200 Wis.2d at 595(citing Wis. Stat. § 19.35(4))(120-day delay “defeats” the public records requirement to provide documents “as soon as practicable”). Finally, the notice of claim is a general requirement that is superceded by specific timing and enforcement requirements for specific claims. Id. at 595-96; See Wis. Stat. § 893.80(5). The Court has similarly recognized an exemption from notice of claim requirements when injunctive relief is a statutorily prescribed remedy for the claim. See Gillen v. City of Neenah, 219 Wis. 2d at 826. In Gillen, addressing an injunction for violations of the public trust doctrine, the Court held that a specific right to injunctive relief supercedes the general notice of claim requirement. Id. at. 822. As the court notes: Wisconsin Stat. § 30.294 [public trust doctrine] expressly allows a plaintiff to seek immediate injunctive relief to prevent injury. The enforcement procedures provided in § 30.294, are inconsistent with Wis. Stat. § 893.80(1)(b) which requires a plaintiff to provide a governmental body with a notice of claim, and to wait 120 days or until the claim is disallowed before filing an action. Therefore, the general application of § 893.80(1)(b) in this case frustrates the plaintiffs’ specific right to injunctive relief under § 30.294. Id . The Coalition filed a mandamus action that mirrors the claims in both State ex rel. Auchinleck and Gillen. Like the public records laws, direct legislation is enforced through mandamus actions. Mt. Horeb Community Alert v. Village of Mt. Horeb, 263 Wis. 2d 544, 552;665 N.W.2d 229, 233(2003); State ex. rel. Althouse v. City of Madison, 79 Wis. 2d 97, 105-06, 255 N.W.2d 449 (1977). Like public records and open meetings laws cases, municipalities faced with direct legislation have control over “whether a suit will be filed based on its actions.” See State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d at 596. The City of Jefferson Common Council had time to contemplate the legal issues behind their decision to refuse direct legislation before they took action. See Wis. Stat. § 9.20(4)(allowing common council 30 days before deciding their course of action). Additionally, section 9.20, Stats., specifically addresses the need for prompt action on direct legislation. See Wis. Stat. § 9.20(3),(4). The Common Council must approve direct legislation or submit the legislation to a referendum vote “within 30 days following the date of the clerk’s final certificate.” Wis. Stat. § 9.20(4). Like the public records requirement to respond “as soon as practicable,” this timing requirement would be frustrated by a 120-day delay before Council action could be compelled through a writ of mandamus. Finally, plaintiffs are given the statutory right to seek a temporary injunction in writ of mandamus actions. Direct legislation complaints are enforced through writ of mandamus actions. Mt. Horeb Community Alert, 263 Wis. 2d at 552; State ex. rel. Althouse, 79 Wis. 2d at 105-06. Writs of mandamus are available pursuant to section 781.01, Stats.. Wis. Stat. § 781.01. Section 781.02, Stats., specifically grants the Coalition the right to seek temporary injunctive relief pending disposition of the mandamus action. Wis. Stat. § 781.02, Stats.. Using the Court’s reasoning in Gillen, the procedures set forth in section 781.02, Stats., are inconsistent with section 893.80 notice of claim requirement. Therefore, the specific requirements for writs of mandamus, set forth in section 781, Stats., supercede the general notice of claim requirements. The Coalition’s writ of mandamus action regarding direct legislation is exempt from the notice of claim requirements in section 893.80(1), Stats.. Wis. Stat. § 893.80(1). Finally, applying the notice of claim requirements to the Coalition’s action goes against the recognized purpose of section 893.80, Stats.. See Gillen, 219 Wis. 2d at 822. The purpose of the notice of claim requirement “is to provide the governmental subdivision an opportunity to compromise and settle a claim without costly and time-consuming litigation.” Id. (citing City of Racine v. Waste Facility Siting Board, 217 Wis. 2d 616, 575 N.W.2d 712, 714 (1998)). The Common Council’s decision does not require an additional 120 days and the city lacks the ability to “compromise or settle” the claim. The City of Jefferson can either approve the direct legislation, submit it to the electors or risk a mandamus action. Pursuant to section 9.20, Stats., the City has 30 days to contemplate its course of action. Wis. Stat, § 9.20(4). An additional 120-day period to decide what action to take is unnecessary. See State ex rel. Auchinleck, 200 Wis. 2d at 595. For the foregoing reasons, the notice of claim requirement in section 893.80(1), Stats., does not apply to the Coalition’s writ of mandamus action. V. DEFENDANT’S ARGUMENTS SUPPORTING THE NEED TO FILE NOTICE OF CLAIM ARE LEGALLY AND FACTUALLY IRRELEVANT. Defendants’ present many legally irrelevant arguments supporting the application of section 893.80(1), Stats., to the Coalition’s mandamus action. Among other arguments, Defendants claim that the Coalition could have drafted and filed the direct legislation in January of 2004, therefore avoiding the current conflict. (Def. Brief, p. 5). Specifically, the Defendants argue that: had the petition for direct legislation been filed [January, 2004] it would have given the City time to consider it and find that it was not proper for direct legislation. Then the Plaintiff would have had time to provide the City notice under § 893.80 Wis. Stats. before instigating the lawsuit. (Def. Brief, p. 5). As discussed above, the Common Council has 30 days to decide whether to approve direct legislation or submit the legislation to a referendum. Wis. Stat. § 9.20. The Common Council would not have any more time to consider the petition if the Coalition had pursued direct legislation in January, 2004. Likewise, the notice of claim requirement would not apply in January, 2004 anymore than in November, 2005. The conflict with the specific policies and requirements underlying direct legislation regardless of when the petition was filed. State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d at 596. The petition met all timing requirements in section 9.20, Stats., and, therefore, timing is of no legal relevance to the Coalition’s action. The Defendant’s claim that by filing the direct legislation petition on October 10, 2005 the Coalition “created their own emergency.” (Def. Brief, p. 5). This argument is legally and factually baseless. Again, the Defendants do not allege any legal insufficiencies with the timing of the direct legislation. Therefore, all of the Defendant’s arguments regarding the January, 2004 complaint, Common Council recall elections and Alderpersons that were “pro” or “anti” Wal-Mart are political and, therefore, legally irrelevant. These arguments should be saved for the election. Factually, these statements are equally inaccurate. Coalition filed the direct legislation petition approximately eighteen days before the 22-acre “Wal-Mart annexation” petition was submitted. (Tanya Stewart Affidavit ¶ 13). At the time the direct legislation was filed, there was no “Wal-Mart annexation” petition. The “emergency” or need for a mandamus action and temporary relief arose after the petition was filed. Approximately eighteen days after the City received the direct legislation petition, the Common Council received the petition to annex 22-acres for the Wal-Mart Supercenter. (Tanya Stewart Affidavit ¶ 13). The Common Council subsequently scheduled a first reading on November 15. (Tanya Stewart Affidavit ¶ 13). On November 15, the Common Council denied the direct legislation and started to take action on the 22-acre annexation. (Tanya Stewart Affidavit ¶ 13, Ex. J). These actions were the basis for the Coalition’s writ of mandamus action and need for a temporary injunction to stop the rapidly accelerating annexation hearings. The Defendant’s arguments fail to address the legal standards surrounding notice of claim in mandamus actions where injunctive relief is statutorily available to plaintiffs. The policies that underlie the Coalition’s claim would be defeated if a 120-day delay was required. The Wisconsin Supreme Court has identified exemptions in cases, such as the Coalition’s mandamus action, where the specific elements of the claim conflict with the general notice requirement. Given this legal precedent, the Coalition is not required to submit notice of claim. VI. DEFENDANTS ARGUE ISSUES THAT HAVE ALREADY BEEN DECIDED BY THE COURT. Many of the Defendant’s arguments address the temporary injunction that was issued by the Court on December 28, 2005. These issues have already been decided and the Defendant’s arguments provide no relevant support for the Defendant’s Motion to Dismiss the Plaintiffs’ Writ of Mandamus action regarding direct legislation. On December 28, 2005 Defendants supported their view that a temporary injunction was not necessary in this case. The hearing lasted approximately two hours. After hearing arguments from both parties, the Court granted a temporary injunction that enjoins the Common Council from taking action on any annexation petitions over 15 acres. All arguments regarding status quo, irreparable harm, availability of adequate remedies and probability of success have been heard and decided. The Coalition has submitted its arguments in support of a temporary injunction and, these arguments have been reviewed by the court. Given that the issue has been decided, Plaintiffs believe that repeating these arguments is unnecessary. VII. CONCLUSION For the foregoing reasons, the Court should deny the Defendants’ Motion to Dismiss because they have not identified flaws in the Coalition’s writ of mandamus action that would support such dismissal. Dated this _____ of December, 2005. Respectfully submitted ________________________________ David R. Halbrooks _______________________________ Melissa Scanlan (WI Bar No. 1034783) |