05 30 16 Sign Code Presentation

2016 MUNICIPAL ATTORNEYS INSTITUTE
LEAGUE OF WISCONSIN MUNICIPALITIES
“Sign Regulation after Reed v. Town of Gilbert”
June 17, 2016
10:25 a.m.
Hector de la Mora
Von Briesen & Roper S.C.
(262) 784-5415
hdelamora@vonbriesen.com
Douglas J. Hoffer
Eau Claire Assistant City Attorney
(715) 839-6006
douglas.hoffer@eauclairewi.gov
June 17-19
Municipal Attorneys Institute
League of Wisconsin Municipalities
Stone Harbor Resort, Sturgeon Bay

Hoffer & de la Mora – Sign Regulation after Reed
I. Sign regulations
a. Content based regulations are presumptively unconstitutional and may be
justified only if the government proves that they are narrowly tailored to
serve compelling state interests.
“The First Amendment, applicable to the States through the Fourteenth
Amendment, prohibits the enactment of laws ‘abridging the freedom of
speech.’ U.S. Const., Amdt. 1. Under that Clause, a government, including
a municipal government vested with state authority, ‘has no power to
restrict expression because of its message, its ideas, its subject matter, or
its content.’”
Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2226 (2015)
Content-based laws—those that target speech based on its communicative
content—are presumptively unconstitutional and may be justified only if
the government proves that they are narrowly tailored to serve compelling
state interests.
b. Content based regulations must satisfy strict scrutiny
Our precedents have also recognized a separate and additional category of
laws that, though facially content neutral, will be considered content-based
regulations of speech: laws that cannot be ‘justified without reference to
the content of the regulated speech,’ or that were adopted by the
government “because of disagreement with the message [the speech]
conveys,’ Those laws, like those that are content based on their face, must
also satisfy strict scrutiny.
c. A benign government motive does not impact the content neutrality
analysis.
A law that is content based on its face is subject to strict scrutiny
regardless of the government's benign motive, content-neutral
justification, or lack of “animus toward the ideas contained” in the
regulated speech.
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We have thus made clear that “ ‘[i]llicit legislative intent is not the sine
qua non of a violation of the First Amendment,’ ” and a party opposing
the government “need adduce ‘no evidence of an improper censorial
motive.’ ”
Although ‘a content-based purpose may be sufficient in certain
circumstances to show that a regulation is content based, it is not
necessary.’ In other words, an innocuous justification cannot transform a
facially content-based law into one that is content neutral.
d. Speech regulation targeted at specific subject matter is content based even
if it does not discriminate viewpoints.
“[A] speech regulation targeted at specific subject matter is content based
even if it does not discriminate among viewpoints within that subject
matter.
Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015)
e. Speaker based distinctions do not automatically render distinction content
based.
[T]he fact that a distinction is speaker based does not, as the Court of
Appeals seemed to believe, automatically render the distinction content
neutral.
Because “[s]peech restrictions based on the identity of the speaker are all
too often simply a means to control content,” we have insisted that “laws
favoring some speakers over others demand strict scrutiny when the
legislature's speaker preference reflects a content preference,”
f. The fact that a distinction is event based does not render it content neutral.
g. Only content based distinctions are subject to strict scrutiny
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Not “all distinctions” are subject to strict scrutiny, only content-based
ones are. Laws that are content neutral are instead subject to lesser
scrutiny.
h. Note: Reed did not expressly overrule any prior cases. Implicit overruling
is disfavored.
See Agostini v. Felton, 521 U.S. 203, 237 (1997)
i. Traffic safety and aesthetics are substantial governmental goals
“Nor can there be substantial doubt that the twin goals that the ordinance
seeks to further—traffic safety and the appearance of the city—are
substantial governmental goals.”
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08, 101 S. Ct.
2882, 2892 (1981).
“It is well settled that the state may legitimately exercise its police powers
to advance esthetic values.”
Members of City Council of City of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789, 805, 104 S. Ct. 2118, 2129, 80 L. Ed. 2d 772 (1984).
j. Signs present special regulatory challenges not applicable to other forms
of speech
“While signs are a form of expression protected by the Free Speech
Clause, they pose distinctive problems that are subject to municipalities'
police powers. Unlike oral speech, signs take up space and may obstruct
views, distract motorists, displace alternative uses for land, and pose other
problems that legitimately call for regulation.”
City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S. Ct. 2038, 2041 (1994)
k. State may sometimes curtail speech when necessary to advance significant
and legitimate state interest.
“[T]he state may sometimes curtail speech when necessary to advance a
significant and legitimate state interest.”
Members of City Council of City of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789, 804, 104 S. Ct. 2118 (1984).
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l. The Constitution accords a lesser protection to commercial speech than
other constitutionally protected expression.
The Constitution therefore accords a lesser protection to commercial
speech than to other constitutionally guaranteed expression. The
protection available for particular commercial expression turns on the
nature both of the expression and of the governmental interests served by
its regulation.
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447
U.S. 557, 562-63, 100 S. Ct. 2343, 2350 (1980)
m. Content neutral speech regulations subject to intermediate scrutiny, and
upheld if “narrowly tailored to serve a significant governmental interest.”
Even though the Act is content neutral, it still must be “narrowly tailored
to serve a significant governmental interest.” The tailoring requirement
does not simply guard against an impermissible desire to censor. The
government may attempt to suppress speech not only because it disagrees
with the message being expressed, but also for mere convenience. Where
certain speech is associated with particular problems, silencing the speech
is sometimes the path of least resistance. But by demanding a close fit
between ends and means, the tailoring requirement prevents the
government from too readily “sacrific[ing] speech for efficiency.”
McCullen v. Coakley, 134 S. Ct. 2518, 2534 (2014)
II. Preliminary Issues
a. Determining validity of ordinances is two part inquiry:
i. Did local government have power to enact the ordinance?
ii. Is the ordinance consistent with the state and federal constitution,
other state laws, other federal laws, and other local ordinances?
b. Municipal Courts have authority to examine constitutionality of
ordinances
“[A]ll courts in which constitutional questions are raised should decide
them.
City of Milwaukee v. Wroten, 160 Wis. 2d 207, 217, 466 N.W.2d 861, 864
(1991)
c. When a case may be resolved on non-constitutional grounds courts do not
need to reach constitutional questions.
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“When a case may be resolved on non-constitutional grounds, we need not
reach constitutional questions.”
Waters ex rel. Skow v. Pertzborn, 2001 WI 62, ¶ 14, 243 Wis. 2d 703, 714,
627 N.W.2d 497, 502
d. Courts may raise the issue of the constitutionality of an ordinance sua
sponte.
“Courts of course should be reluctant to consider the constitutionality of
statutes unless required by the case. In the instant cases, however, there is
adequate justification for the circuit court's raising the constitutionality of
sec. 971.20 sua sponte. This court has said that even where the parties
waive the issue, a court ‘should raise the (constitutional) question itself
where it appears necessary to the proper disposition of a case.’”
State v. Holmes, 106 Wis. 2d 31, 40, 315 N.W.2d 703, 707-08 (1982)
e. Constitutional challenges to repealed legislation are generally considered
moot.
“In general, constitutional challenges to repealed legislation are
considered moot.”
Town of Rhine v. Bizzell, 2008 WI 76, 311 Wis. 2d 1, 39, 751 N.W.2d 780,
799
f. Courts may consider moot issues, especially if similar ordinances exist in
other communities.
“However, unlike state or federal legislation, municipal ordinance sections
like the one at issue here may still exist in other municipalities within the
state. At times, we may consider a ‘moot issue’ if it is of ‘great public
importance or arises frequently enough to warrant a definitive decision to
guide the circuit courts.’”
Town of Rhine v. Bizzell, 2008 WI 76, 311 Wis. 2d 1, 39, 751 N.W.2d 780,
799
g. Wisconsin’s Notice of Claim requirement cannot bar Federal
constitutional challenges under § 1983
“Federal constitutional challenges brought under § 1983 cannot be barred
by Wisconsin's notice of claim requirement.”
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Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis. 2d 13, 19, 580 N.W.2d
156, 159 (1998).
h. Attorney General must receive notice and opportunity to be heard if an
ordinance is alleged to be unconstitutional
“…If a statute, ordinance or franchise is alleged to be unconstitutional, the
attorney general shall also be served with a copy of the proceeding and be
entitled to be heard…”
Wis. Stat. Ann. § 806.04(11)
III. Burdens & Presumptions
a. Defendants raising constitutional challenges carry a heavy burden
i. Legislative enactments are presumed to be constitutional
“Legislative enactments are presumed constitutional, and this court
has stated it ‘will sustain a statute against attack if there is any
reasonable basis for the exercise of legislative power.’”
State v. McManus, 152 Wis. 2d 113, 129, 447 N.W.2d 654, 660
(1989)
ii. Ordinances are presumed to be constitutional
“[S]tatutes are presumed constitutional; the challenger must prove
the unconstitutionality of a statute beyond a reasonable doubt.
This is true of ordinances as well.”
Davis v. City of Elkhorn, 132 Wis. 2d 394, 400, 393 N.W.2d 95, 98
(Ct. App. 1986)
iii. Party raising constitutional challenge must demonstrate the law is
unconstitutional beyond a reasonable doubt.
“The party bringing the challenge must show the statute to be
unconstitutional beyond a reasonable doubt.”
(1989)
“A party challenging a statute does not overcome the presumption
of constitutionality by establishing that a statute's constitutionality
is doubtful or that a statute is probably unconstitutional.”
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In re Commitment of Alger, 2015 WI 3, ¶ 22, 360 Wis. 2d 193,
208, 858 N.W.2d 346, 353
iv. Courts cannot reweigh the facts found by the legislature.
“The court cannot reweigh the facts found by the legislature. If the
court can conceive any facts on which the legislation could
reasonably be based, it must hold the legislation constitutional.”
(1989)
v. Doubts regarding constitutionality of legislative acts must be
resolved in favor of constitutionality
“Every presumption must be indulged to sustain the law if at all
possible and, wherever doubt exists as to a legislative enactment's
constitutionality, it must be resolved in favor of constitutionality.”
State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32,
46, 205 N.W.2d 784, 792 (1973); see also State v. McManus, 152
Wis. 2d 113, 129, 447 N.W.2d 654, 660 (1989)
b. Burden shifts in 1st
Amendment cases
“Typically, the party challenging the statute bears that burden and must
prove beyond a reasonable doubt that the statute is unconstitutional.
However, the burden of proof shifts to the proponent of the statute when it
has the effect of infringing upon first amendment rights.”
State v. Thiel, 183 Wis. 2d 505, 522-23, 515 N.W.2d 847, 854 (1994)
i. It is the initial duty of the person who claims 1st
Amendment
protection to demonstrate that the regulated conduct is speech or its
equivalent.
“It is, nevertheless, the initial duty of the person who claims the
protection of the First Amendment to demonstrate that the
[regulated] conduct is speech or its equivalent, to which First
Amendment protections apply.”
State v. Crute, 2015 WI App 15, ¶ 11, 360 Wis. 2d 429, 439, 860
N.W.2d 284, 289
c. Unconstitutional ordinances are void from inception.
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An unconstitutional act of the Legislature is not a law; it confers no rights;
it imposes no penalties; it affords no protection, and is not operative; and
in legal contemplation it has no existence.
State ex rel. Kleist v. Donald, 164 Wis. 545, 160 N.W. 1067, 1070 (1917);
See also State v. Huebner, 2000 WI 59, 235 Wis. 2d 486, 514, 611
N.W.2d 727, 740.
IV. Construction of legislative enactments
a. It is the duty of courts to construe legislative enactments to eliminate
constitutional infirmities
“The cardinal rule of statutory construction is to preserve a statute and to
find it constitutional if it is at all possible to do so. The duty of this court,
if possible, is to construe the statute to find it in harmony with accepted
constitutional principles.”
Redevelopment Auth. of City of Milwaukee v. Uptown Arts & Educ., Inc.,
229 Wis. 2d 458, 463, 599 N.W.2d 655, 657 (Ct. App. 1999)
“[C]ourts must apply a limiting construction to a statute, if available, that
will eliminate the statute's overreach, while still ‘maintain[ing] the
legislation's constitutional integrity.’”
156, 161 (1998)
b. Courts examine a variety of factors in determining whether to engage in
construction
i. Courts do not apply a limiting construction where doing so would
contradict the express intent of an ordinance.
“We cannot apply a limiting construction which contravenes the
expressed intent of the Ordinance.”
Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis. 2d 13, 26, 580
N.W.2d 156, 162 (1998)
ii. Construction does not involve creating new legislation.
“This court can only construe. It cannot legislate. Words should
not be read into or read out of a plain statute. To adopt the
construction asked would be to make a new statute. This we cannot
do.”
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Rogers-Ruger Co. v. Murray, 115 Wis. 267, 91 N.W. 657, 658-59
(1902)
V. Severability
a. Severability involves keeping the remaining provisions of a legislative act
in force if any portion of the legislative act is declared void or
unconstitutional.
b. Does either your community’s code of ordinances or the specific
ordinance in question provide for severability like Wisconsin statutes?
“The provisions of the statutes are severable. The provisions of any
session law are severable. If any provision of the statutes or of a session
law is invalid, or if the application of either to any person or circumstance
is invalid, such invalidity shall not affect other provisions or applications
which can be given effect without the invalid provision or application.”
Wis. Stat. § 990.001(11); see also Nankin v. Vill. of Shorewood, 2001 WI
92, ¶ 48, 245 Wis. 2d 86, 116, 630 N.W.2d 141, 155
c. Severability requires examination of legislative intent. Presumption is in
favor of severability.
“Whether an unconstitutional provision is severable from the remainder of
the statute in which it appears is largely a question of legislative intent, but
the presumption is in favor of severability. Unless it is evident that the
Legislature would not have enacted those provisions which are within its
power, independently of that which is not, the invalid part may be dropped
if what is left is fully operative as a law.”
Nankin v. Vill. of Shorewood, 2001 WI 92, ¶ 49, 245 Wis. 2d 86, 116, 630
N.W.2d 141, 155
d. Severability clauses are entitled to great weight in determining legislative
intent.
“[T]he existence of a severability clause is entitled to great weight in
deciding whether the legislative body intended that the portions not
invalidated remain as an effective ordinance.”
Sauk Cnty. v. Gumz, 2003 WI App 165, ¶ 78, 266 Wis. 2d 758, 826-27,
669 N.W.2d 509, 544
“The Wisconsin Supreme ‘[C]ourt has held, in accordance with the
general rule elsewhere, that the existence of a severability clause, while
not controlling, is entitled to great weight in determining whether valid
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portions of a statute or ordinance can stand separate from any invalid
portion.’”
Green Valley Inv., LLC v. Cnty. of Winnebago, 790 F. Supp. 2d 947, 963
(E.D. Wis. 2011), as amended (July 15, 2011) citing City of Madison v.
Nickel, 66 Wis. 2d 71, 79-80, 223 N.W.2d 865, 869-70 (1974).
e. Remaining (unsevered) ordinance must be a valid enactment standing
alone.
“However, the remaining ordinance must be a valid enactment
independent of the invalid severed portions.”
Sauk Cnty. v. Gumz, 2003 WI App 165, ¶ 78, 266 Wis. 2d 758, 827, 669
N.W.2d 509, 544
VI. Due Process
a. No ordinance may deprive a person of life, liberty, or property without due
process of law.
b. Due process clause of Wisconsin Constitution may be interpreted, in very
limited circumstances, to provide greater protection than U.S. Constitution
“Even though the Due Process Clause of Article I, Section 8 of the
Wisconsin Constitution uses language that is somewhat similar, but not
identical, to the Due Process Clause of the Fourteenth Amendment to the
United States Constitution, we retain the right to interpret our constitution
to provide greater protections than its federal counterpart.”
State v. Dubose, 2005 WI 126, ¶ 41, 285 Wis. 2d 143, 173, 699 N.W.2d
582, 597.
“However, post-Dubose, we have held that the decision did not create a
precedential sea change with respect to the recognition of a broader due
process protection under the Wisconsin Constitution than under the United
States Constitution.”
State v. Luedtke, 2015 WI 42, ¶ 49 (decided April 24, 2015)
c. Procedural due process
i. 3 elements to sustain a procedural due process claim
1. There was a life, liberty, or property right
2. State action deprived plaintiff of the right
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3. There was a failure to provide constitutionally mandated
procedures
Bennett-Beil v. Vill. of Hartland, 958 F. Supp. 407, 409 (E.D. Wis.
1997)
“Like equal protection and substantive due process rights, procedural due
process rights emanate from the Fourteenth Amendment.”
Thorp v. Town of Lebanon, 2000 WI 60, ¶ 53, 235 Wis. 2d 610, 642, 612
N.W.2d 59, 76. See also Wis. Const. art. I, § 8.
“The procedural due process clause protects individuals from
governmental ‘denial of fundamental procedural fairness.’ ‘[A] plaintiff
must show a deprivation by state action of a constitutionally protected
interest in ‘life, liberty, or property’ without due process of law.’ The
requirement of procedural due process is met if a state provides adequate
post-deprivation remedies.
Thorp v. Town of Lebanon, 2000 WI 60, ¶ 53, 235 Wis. 2d 610, 642, 612
N.W.2d 59, 76
d. Substantive due process
“Substantive due process forbids a government from exercising ‘power
without any reasonable justification in the service of a legitimate
governmental objective.’ ”
Town of Rhine v. Bizzell, 2008 WI 76, ¶ 28, 311 Wis. 2d 1, 22, 751
N.W.2d 780, 791
“Due process requires that the means chosen by the legislature bear a
reasonable and rational relationship to the purpose or object of the
enactment; if it does, and the legislative purpose is a proper one, the
exercise of the police power is valid.”
State v. McManus, 152 Wis. 2d 113, 130, 447 N.W.2d 654, 660 (1989).
i. Two-tier scrutiny
1. Non-fundamental rights (ex. Economic rights) – there must
be a rational relation between the legislative act and a
legitimate state objective.
2. Fundamental right impaired by legislative act – stricter
scrutiny in two respects
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a. The state’s objective must be “compelling” not
merely “legitimate.” And
b. The relation between that objective and the means
must be very close so that the means can be said to
be “necessary” to achieve the end.
“To determine the merits of an equal protection claim or a
substantive due process claim, we must first determine which level
of judicial scrutiny applies. If the challenged legislation neither
implicates a fundamental right nor discriminates against a suspect
class, we apply rational basis review rather than strict scrutiny to
the legislation.”
218, 858 N.W.2d 346, 358-59
ii. Fundamental rights
“Fundamental rights are those which are either explicitly or
implicitly based in the Constitution. Rights that have been
determined fundamental are procreation, voting, access to the
courts, freedom of travel, and the rights guaranteed by the First
Amendment of the Constitution.”
State v. Martin, 191 Wis. 2d 646, 652, 530 N.W.2d 420, 422-23
(Ct. App. 1995)
iii. Facial substantive due process
“[F]acial substantive due process challenges are rarely successful.”
N.W.2d 780, 793
iv. Zoning
“The United States Supreme Court has recognized a landowner's
right to substantive due process in zoning cases. The Supreme
Court has stated, ‘a zoning ordinance is unconstitutional when its
‘provisions are clearly arbitrary and unreasonable having no
substantial relation to the public health, safety, morals or general
welfare.’”
N.W.2d 780, 791
13

“The seminal zoning case, which involved a facial substantive due
process challenge, is Euclid”.
N.W.2d 780, 793
“[T]he city has a rational basis for its decision to ban the keeping
of pigeons in residential areas, and GCCC's substantive due
process claim is at an end.”
Greater Chicago Combine & Ctr., Inc. v. City of Chicago, 431
F.3d 1065, 1072 (7th Cir. 2005) (also noting that raising pigeons is
not a “fundamental” right).
VII. Equal Protection
a. Equal protection clause prohibits administering an ordinance so as to treat
similarly situated people differently
b. Levels of review
“Unless a challenge to an ordinance affects a person's fundamental right or
creates a classification based on a suspect class, this court uses the
“rational basis test” in determining whether the ordinance withstands the
equal protection challenge.”
City of Milwaukee v. Hampton, 204 Wis. 2d 49, 59, 553 N.W.2d 855, 859
(Ct. App. 1996)
i. Rational basis test (primarily economic issues)
“Under the ‘rational basis test,’ we must uphold a legislative
classification if there exists any reasonable basis to justify that
classification. To decide if there is any reasonable basis, the court
is obligated to find or construct, if possible, a rationale that might
have influenced the legislature and that reasonably upholds
legislative determinations.”
City of Milwaukee v. Hampton, 204 Wis. 2d 49, 59, 553 N.W.2d
855, 859 (Ct. App. 1996)
ii. Strict scrutiny (fundamental rights or suspect class)
“Where a ‘fundamental right’ or ‘suspect class' is involved, the
challenged statute must pass strict scrutiny.”
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Szarzynski v. YMCA, Camp Minikani, 184 Wis. 2d 875, 886, 517
N.W.2d 135, 139 (1994).
“To determine the merits of an equal protection claim or a
substantive due process claim, we must first determine which level
of judicial scrutiny applies. If the challenged legislation neither
implicates a fundamental right nor discriminates against a suspect
class, we apply rational basis review rather than strict scrutiny to
the legislation.”
218, 858 N.W.2d 346, 358-59
iii. Fundamental rights
“Fundamental rights are those which are either explicitly or
implicitly based in the Constitution. Rights that have been
determined fundamental are procreation, voting, access to the
courts, freedom of travel, and the rights guaranteed by the First
Amendment of the Constitution.”
State v. Martin, 191 Wis. 2d 646, 652, 530 N.W.2d 420, 422-23
(Ct. App. 1995)
iv. Suspect class
“When the courts speak of a ‘suspect’ class, they look to
“traditional indicia of suspectness.” Traditional indicia are found
when there is a history of such purposeful unequal treatment,
political powerlessness or imposition of special disabilities such
that the courts command extraordinary protection from the
majoritarian political process. Persons generally are placed in these
suspect classes by accident of birth. Examples of suspect classes
are race, alienage and national origin. Another example is where a
statute classifies by sex.”
State v. Martin, 191 Wis. 2d 646, 652, 530 N.W.2d 420, 423 (Ct.
App. 1995)
c. Classification
i. Equal protection requires the existence of reasonable and practical
grounds for classification drawn by legislature
“Equal protection similarly requires that there exist reasonable and
practical grounds for the classifications drawn by the legislature.”
15

(1989).
“The fact a statutory classification results in some inequity,
however, does not provide sufficient grounds for invalidating a
legislative enactment.”
(1989).
ii. Party challenging classification must prove abuse of discretion
beyond a reasonable doubt.
“Therefore, the party challenging a statutory classification bears
the burden of proving abuse of legislative discretion beyond a
reasonable doubt.”
Szarzynski v. YMCA, Camp Minikani, 184 Wis. 2d 875, 887, 517
N.W.2d 135, 139 (1994).
d. Selective Prosecution.
i. Discrimination must be intentional, systematic, and arbitrary
“Nevertheless, evidence that a municipality has enforced an
ordinance in one instance and not in others would not in itself
establish a violation of the equal protection clause. There must be a
showing of an intentional, systematic and arbitrary
discrimination.”
Vill. of Menomonee Falls v. Michelson, 104 Wis. 2d 137, 145, 311
N.W.2d 658, 662 (Ct. App. 1981)
ii. A discriminatory purpose is not presumed even when unequal
application of law is present.
“The unlawful administration by state officers of a state statute fair
on its face, resulting in its unequal application to those who are
entitled to be treated alike, is not a denial of equal protection
unless there is shown to be present in it an element of intentional
or purposeful discrimination. But a discriminatory purpose is not
presumed.”
State ex rel. Cities Serv. Oil Co. v. Bd. of Appeals, 21 Wis. 2d 516,
544, 124 N.W.2d 809, 823 (1963)
16

iii. Proof of selective enforcement does not necessarily establish a
constitutional violation
“Even if there had been evidence that the city itself had enforced
the ordinance in one instance and not in others, this would not in
itself establish a violation of the equal-protection-of-the-laws
clause of the Fourteenth amendment.”
State ex rel. Cities Serv. Oil Co. v. Bd. of Appeals, 21 Wis. 2d 516,
544, 124 N.W.2d 809, 823 (1963)
iv. Justifications for selective prosecution
1. “Selective enforcement may be justified when the meaning
or constitutionality of the law is in doubt and a test case is
needed to clarify the law or to establish its validity.”
Vill. of Menomonee Falls v. Michelson, 104 Wis. 2d 137,
145, 311 N.W.2d 658, 662 (Ct. App. 1981)
2. “Selective enforcement may also be justified when a
striking example or a few examples are sought in order to
deter other violators, as part of a bona fide rational pattern
of general enforcement, in the expectation that general
compliance will follow and that further prosecutions will be
unnecessary.”
Vill. of Menomonee Falls v. Michelson, 104 Wis. 2d 137,
145-46, 311 N.W.2d 658, 662-63 (Ct. App. 1981)
VIII. Overbreadth
a. Legislative acts are overbroad when sanctions may be applied to protected
conduct.
“A statute is overbroad when its language, given its normal meaning, is so
sweeping that its sanctions may be applied to constitutionally protected
conduct which the state is not permitted to regulate.”
Brandmiller v. Arreola, 199 Wis. 2d 528, 546, 544 N.W.2d 894, 901
(1996); See also City of Milwaukee v. Wilson, 96 Wis.2d 11, 19, 291
N.W.2d 452 (1980).
b. Two limitations to overbreadth doctrine
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“Courts, in consequence, have established two specific limitations to
applying the overbreadth doctrine.”
156, 165 (1998) (Steinmetz, J., dissenting)
i. Facial challenges will not succeed when limiting
construction is available.
“First, a facial challenge to an ordinance will not succeed
when a limiting construction is available to maintain the
legislation’s constitutional integrity.”
Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis. 2d 13,
34, 580 N.W.2d 156, 165 (1998).
“Facial challenges to a statute, such as the one Thiel makes
here, do not succeed when a limiting construction is
available to maintain the legislation's constitutional
integrity.”
State v. Thiel, 183 Wis. 2d 505, 521, 515 N.W.2d 847, 853
(1994)
ii. Overbreadth must be real and substantial – and overbreadth
docrine must only be used as a last resort.
“The overbreadth of the statute must be real and
substantial”
City of Milwaukee v. Wroten, 160 Wis. 2d 207, 226, 466
N.W.2d 861, 868 (1991)
“[I]n asserting an overbreadth challenge an individual may
hypothesize situations in which a statute or ordinance
would unconstitutionally intrude upon the first amendment
rights of third parties.... However ... the court will not deem
a statute or ordinance invalid because in some conceivable,
but limited, circumstances the regulation might be
improperly applied.”
City of Milwaukee v. Wroten, 160 Wis. 2d 207, 227, 466
N.W.2d 861, 868 (1991); see also Milwaukee v. K.F., 145
Wis.2d 24, 40, 426 N.W.2d 329 (1988).
“However, the court must be cognizant of the fact that
application of the overbreadth doctrine is ‘strong
18

medicine,’ to be used only where the alleged overbreadth of
the statute or ordinance is not only real, but substantial, and
‘then ‘only as a last resort.’”
Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis. 2d 13,
23, 580 N.W.2d 156, 161 (1998).
c. Overbroad legislation “chills” constitutionally protected conduct.
“The essential vice of an overbroad law is that by sweeping protected
activity within its reach it deters citizens from exercising their protected
constitutional freedoms, the so-called ‘chilling effect.’ ”
Brandmiller v. Arreola, 199 Wis. 2d 528, 546, 544 N.W.2d 894, 901-02
(1996)
d. Court may not construe an unambiguously overbroad ordinance
“While it is our obligation to so construe the ordinance as to preserve its
constitutionality, we cannot in this case do so. The ordinance is
unambiguous.”
City of Milwaukee v. Wroten, 160 Wis. 2d 207, 233-34, 466 N.W.2d 861,
871 (1991).
IX. Vagueness
a. Two part analysis for determining whether legislative enactment is void
for vagueness:
i. Must be sufficiently definite to give fair notice of required or
prohibited conduct.
ii. Must provide standards for those who enforce law and adjudicate
guilt.
“This court has applied a two part analysis for determining whether a
statute is void for vagueness: first, the statute must be sufficiently definite
to give persons of ordinary intelligence who seek to avoid its penalties fair
notice of the conduct required or prohibited; and second, the statute must
provide standards for those who enforce the laws and adjudicate guilt.”
State v. McManus, 152 Wis. 2d 113, 135, 447 N.W.2d 654, 662 (1989)
b. A vague ordinance either fails to provide notice of prohibited conduct or
allows arbitrary enforcement.
19

“A vague statute [is one that] through the use of language ... is so vague as
to allow the inclusion of protected speech in the prohibition or to leave the
individual with no clear guidance as to the nature of the acts which are
subject to punishment.”
City of Madison v. Baumann, 162 Wis. 2d 660, 674, 470 N.W.2d 296, 301
(1991).
“A vague statute [is one that] through the use of language ... is so vague as
to allow the inclusion of protected speech in the prohibition or to leave the
individual with no clear guidance as to the nature of the acts which are
subject to punishment.”
(1991).
“The void for vagueness doctrine ‘... incorporates the notions of fair notice
or warning.... [i]t requires legislatures to set reasonably clear guidelines
for law enforcement officials and triers of fact in order to prevent
‘arbitrary and discriminatory enforcement.’ ”
(1991)
X. Zoning ordinances
a. Communities have broad authority to enact zoning ordinances
“Zoning ordinances and land use regulations have a useful, valid purpose,
and the government has broad authority to enact such classifications for
the purpose of promoting health, safety, morals or the general welfare of
the community.”
N.W.2d 780, 786
b. Zoning ordinances are presumed valid and constitutional
“A comprehensive zoning ordinance, enacted pursuant to Wis. Stat. §
62.23, is presumed valid and must be liberally construed in favor of the
municipality.”
N.W.2d 780, 787
“The role of courts in zoning matters is limited because zoning is a
legislative function.”
20

N.W.2d 780, 790; See also Buhler v. Racine County, 33 Wis.2d 137, 146–
47, 146 N.W.2d 403 (1966).
c. A properly enacted zoning ordinance must satisfy constitutional
requirements
“Nonetheless, a properly enacted ordinance must satisfy constitutional
requirements.”
N.W.2d 780, 790
d. Constitutional challenges to zoning ordinances may arise in various
contexts
“Constitutional challenges may arise, for example, under the takings, due
process, or equal protection clauses of the state and federal constitutions.”
N.W.2d 780, 790
e. A substantive due process challenge to a zoning ordinance must
demonstrate that the ordinance is clearly arbitrary and has no substantial
relation to the public health, safety, morals, or general welfard.
“While the line between permissible and impermissible zoning may not
always be readily ascertainable, the requisite standard that must be applied
for a substantive due process challenge is clear: we must determine
whether the ordinance is clearly arbitrary and unreasonable in the
restricted sense that it has no substantial relation to the public health,
safety, morals or general welfare.”
N.W.2d 780, 793-94
f. Notice of excessive zoning restriction does not preclude constitutional
challenge to the ordinance.
“While the landowner who chooses to purchase land in the B–2 District
has notice of the excessive restriction in the B–2 District, this does not, as
we see here, preclude a constitutional challenge to the ordinance.”
N.W.2d 780, 801
XI. Regulatory Takings
21

a. Distinguishing between permissible land use “regulation” and “taking”
which may implicate the 5th
Amendment:
“[T]he Fifth Amendment is violated when land-use regulation ‘does not
substantially advance legitimate state interests or denies an owner
economically viable use of his land.’”
Zealy v. City of Waukesha, 201 Wis. 2d 365, 374, 548 N.W.2d 528, 531
(1996)
b. Taking occurs when zoning ordinance precludes land from being used for
any reasonable purpose.
“[W]hen zoning classifications restrict the enjoyment of property to such
an extent that it cannot be used for any reasonable purpose, a taking
without due process occurs.”
State ex rel. Nagawicka Island Corp. v. City of Delafield, 117 Wis. 2d 23,
27, 343 N.W.2d 816, 818 (Ct. App. 1983); see also Lucas, 505 U.S. at
1015, 112 S.Ct. at 2893 (regulatory taking occurs when regulation “denies
all economically beneficial or productive use of land”); Dolan v. City of
Tigard, 512 U.S. 374, 114 S.Ct. 2309, 2316, (1994) (regulatory taking
occurs if it denies an owner “economically viable use of his land”)
(quoting Agins, 447 U.S. at 260, 100 S.Ct. at 2141); Zinn v. State, 112
Wis.2d 417, 424, 334 N.W.2d 67 (1983) (regulatory taking occurs “when
the government restriction placed on the property ‘practically or
substantially renders the property useless for all reasonable purposes' ”)
(quoted sources omitted); Reel Enters. v. City of La Crosse, 146 Wis.2d
662, 674, 431 N.W.2d 743 (Ct.App.1988), review denied, 147 Wis.2d 887,
436 N.W.2d 29 (1988) (regulatory taking occurs if it “deprives the owner
of all, or practically all, of the use”).
“When the power to regulate by zoning is exercised in such a manner and
to such an extent that the property owners are deprived of all practical
value and are left with only the burden of paying taxes on it, the useful
value of that property has been “taken” from its owners without due
process of law.”
27, 343 N.W.2d 816, 818-19 (Ct. App. 1983)
c. Distinction between reasonable restrictions and a taking without
compensation is a matter of degree.
“The distinction between reasonable restrictions placed on property and a
‘taking’ without compensation is a matter of degree of damage to the
22

property owner. Whether a taking has occurred depends upon whether
‘the restriction practically or substantially renders the land useless for all
reasonable purposes.’ The loss caused the individual must be weighed to
determine if it is more than he should bear.... ‘[I]f the damage is so great
to the individual that he ought not to bear it under contemporary standards,
then courts are inclined to treat it as a ‘taking’ of the property or an
unreasonable exercise of the police power.’”
27, 343 N.W.2d 816, 819 (Ct. App. 1983)
d. Before making regulatory taking determination courts must determine
what, precisely, is the property at issue.
“Because our test for regulatory taking requires us to compare the value
that has been taken from the property with the value that remains in the
property, one of the critical questions is determining how to define the unit
of property ‘whose value is to furnish the denominator of the fraction.’”
Zealy v. City of Waukesha, 201 Wis. 2d 365, 375, 548 N.W.2d 528, 532
(1996)
e. Permanent physical occupations always constitute a taking.
“We conclude that a permanent physical occupation authorized by
government is a taking without regard to the public interests that it may
serve.”
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426, 102
S. Ct. 3164, 3171, 73 L. Ed. 2d 868 (1982)
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