Village of Mishicot v. Jodi A. Arseneau

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 6, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP541 Cir. Ct. No. 2017CV223

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

VILLAGE OF MISHICOT,

PLAINTIFF-APPELLANT,

V.

JODI A. ARSENEAU,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Manitowoc County:
ROBERT DEWANE, Judge. Reversed and cause remanded for further
proceedings.

¶1 NEUBAUER, C.J.1 Village of Mishicot appeals from an order
dismissing a citation for an ordinance violation against Jodi A. Arseneau. The
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(b) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP541

circuit court’s dismissal was based on its conclusion that the Village violated
Arseneau’s Fourteenth Amendment rights of equal protection by selectively
prosecuting her. The Village argued that Arseneau failed to show a prima facie
case of selective prosecution. We agree and therefore reverse and remand for
further proceedings.

BACKGROUND

¶2 Arseneau is a resident of the Village. Her property is located in a
floodway. In June 2016, Arseneau wanted to repair and expand a storage shed on
her property. She discussed with the Village clerk whether such construction
could be undertaken in a floodway. After communicating with the Wisconsin
Department of Natural Resources (DNR), the Village clerk sent a July 1, 2016
letter to Arseneau explaining that the DNR stated that such a structure is not
permitted in the floodway.

¶3 Despite the letter, Arseneau began construction on the shed. On
July 18, 2016, the Village sent another letter advising Arseneau that she was in
violation of the Village’s floodplain ordinance and building ordinance (for
building without a permit) and needed to stop construction immediately. The
letter stated that, if she refused to comply, she would be subject to ordinance
enforcement.

¶4 The Village received an August 2, 2016 letter from the DNR
advising that Arseneau’s construction was in violation of the Village’s floodplain
ordinance and “must be brought into compliance.” The letter stated that, in order
to be compliant, “the structure needs to be removed or to be moved to a compliant
location.” If the Village failed to advise the DNR of its enforcement plan, the
DNR “may need to take action,” which could include notifying the Federal

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Emergency Management Agency and “could jeopardize the Village’s status with
respect to the National Flood Insurance Program (NFIP).” The letter further
explained: “A community participating in the NFIP is required to adopt and
enforce a floodplain management ordinance that meets minimum NFIP
requirements. A community that does not enforce its ordinance can be placed on
probation or [be] suspended from the program.” Probation could result in
premium surcharges to Village residents for flood insurance. Suspension means
that flood insurance would not be written or renewed, and suspension “could also
impact mortgages for some community residents.”

¶5 Based on her conversations with the Village clerk, Arseneau
believed that if she put the shed on a heavy duty, legitimate trailer, then it would
comply with the ordinance as the shed could then be moved if a flood occurred.
But the Village clerk’s August 18, 2016 letter explained that, per the DNR, putting
wheels on the structure was not an option as it was not a vehicle, and people also
tend to leave such structures behind when a flood occurs.

¶6 In January 2017, Arseneau was cited and convicted for building in a
floodway and building without a permit. Arseneau appealed to the circuit court,
which affirmed her conviction.2 Arseneau moved for reconsideration, suggesting
that she was not permitted a full trial on all of the issues. The circuit court
reopened the case, requesting briefs and scheduling an evidentiary hearing in
January 2019.

2
The Honorable Gary L. Bendix presided over the appeal from the municipal court. The
Honorable Robert Dewane was then assigned the case.

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¶7 Moving for dismissal of the citation, Arseneau claimed that the
Village’s prosecution violated her Fourteenth Amendment equal protection rights
because it was unjustifiably selective. She pointed out that another Village
resident, James Eells, owns property located nearby and in the floodplain, and
maintains a storage unit and two enclosed trailers within the floodway. Yet, Eells
was not cited. She also noted that, during a festival, the Village allows enclosed
trailers to stay for about a week in a nearby park which is mostly within the
floodway, and the trailer owners were not cited.

¶8 The Village responded that Arseneau was advised multiple times
before the citation that the trailer was in violation. The Village also pointed out
that the DNR had threatened action against the Village if it did not enforce the
ordinance against Arseneau.

¶9 The testimony established that, even before Eells purchased the
storage unit, he wanted to make sure it did not violate any ordinance, so he asked
the Village clerk. She told him it was acceptable. Only after he spent around
$5000 on the unit was it determined that it was in violation and he needed to move
it.

¶10 When asked if anyone else in the Village had been cited under this
ordinance, the clerk testified, “No. Anybody asked to take some action took it,”
and she went on to provide several examples.

¶11 After submission of evidence and hearing arguments of counsel, the
circuit court determined that the Village did selectively prosecute Arseneau and
granted Arseneau’s motion to dismiss. The court agreed with the Village that
there was no evidence of well-established discriminatory factors such as race,
religion, or gender. Rather, the court determined an “arbitrary classification” was

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made when the Village did not cite Eells only because he could sue the Village for
the clerk’s error, and, instead, the Village cited Arseneau because she had no basis
to sue the Village. The Village appeals.

DISCUSSION

Standard of Review and Applicable Fourteenth Amendment Law

¶12 At issue in selective prosecution cases is a potential violation of the
Equal Protection Clause of the Fourteenth Amendment. See State v. McCollum,
159 Wis. 2d 184, 196-98, 464 N.W.2d 44 (Ct. App. 1990). In State v. Kramer,
2001 WI 132, ¶14, 248 Wis. 2d 1009, 637 N.W.2d 35 (emphasis added; citations
omitted), our supreme court aptly set forth the parameters of the selective
prosecution analysis:

A prosecutor has great discretion in deciding whether to
prosecute in a particular case. Exercise of this discretion
necessarily involves a degree of selectivity. For this
reason, a prosecutor’s conscious exercise of some
selectivity in enforcement does not in itself create a
constitutional violation. A violation of the Fourteenth
Amendment of the United States Constitution will occur,
however, when a defendant can show “persistent selective
and intentional discrimination in the enforcement of the
statute in the absence of valid exercise of prosecutorial
discretion.”

¶13 Before a defendant is entitled to an evidentiary hearing on the claim,
he or she carries the burden of making a prima facie case of discriminatory
prosecution. Kramer, 248 Wis. 2d 1009, ¶15. Two prongs must be shown: a
discriminatory effect and a discriminatory purpose. Id., ¶18. To show a
discriminatory effect, the defendant must have been “singled out for prosecution
while others similarly situated have not.” County of Kenosha v. C & S Mgmt.,
Inc., 223 Wis. 2d 373, 401, 588 N.W.2d 236 (1999). “Similarly situated” means

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that the circumstances show “no distinguishable legitimate prosecutorial factors
that might justify making prosecutorial decisions.” Kramer, 248 Wis. 2d 1009,
¶20 (citation omitted). To show a discriminatory purpose, the prosecutor’s
selection must have been based on an impermissible factor (such as race, religion,
or other arbitrary classification). Id., ¶18. When the prosecution is a solitary one,
as here, the defendant’s claim may also be proven by a “substantial showing” that
the decision to prosecute was an attempt to prevent the exercise of constitutional
rights or was prompted by personal vindictiveness. Id.; State v. Barman, 183
Wis. 2d 180, 188-89, 515 N.W.2d 493 (Ct. App. 1994). If a defendant
successfully makes a prima facie case based on the two prongs, he or she is
entitled to an evidentiary hearing, and “the burden then shifts to the state to show
that the charging decision reflects a valid exercise of prosecutorial discretion.”
Kramer, 248 Wis. 2d 1009, ¶15.

¶14 Typically, whether the defendant has established a prima facie case
based on both prongs involves factual inquiries, such that we would review the
circuit court’s determinations of discriminatory effect and purpose under the
clearly erroneous standard. Id., ¶17. Here, however, the material, historical facts
are undisputed, and when that is the case, “we review the constitutional
significance of those facts de novo.” State v. Schmidt, 2012 WI App 137, ¶6, 345
Wis. 2d 326, 825 N.W.2d 521. In addition, whether the circuit court identified the
correct legal standard and applied it correctly are questions of law for our
independent review. Barman, 183 Wis. 2d at 188.

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Arseneau Did Not Make a Prima Facie Showing of Discriminatory Effect

¶15 Arseneau failed to meet her burden of proof to show the first prong–
discriminatory effect. Arseneau argues that the nonprosecution of Eells is prima
facie evidence of a discriminatory effect, as she and Eells were “similarly
situated.”3 We disagree, as she fails to show that their differing situations do not
have “distinguishable legitimate prosecutorial factors that might justify” citing
Arseneau, but not Eells. See Kramer, 248 Wis. 2d 1009, ¶20.

¶16 The Village notified Arseneau that her shed construction would
violate the ordinance; that, once she began construction, she should stop; and that
she would be subject to ordinance enforcement. Ignoring the Village’s express
warning, Arseneau completed her construction. In the earlier circuit court
proceeding, the court affirmed the citation. On appeal, Arseneau argues only that
she was selectively prosecuted as “she is not the only person in violation,”
developing no argument challenging the merits of the citation. See Kramer, 248
Wis. 2d 1009, ¶15 (a claim of selective prosecution “is not a defense on the merits
to the criminal charge itself, but an independent assertion that” the charges were
brought for unconstitutional reasons (citation omitted)).

¶17 The DNR notified the Village of Arseneau’s violation, which “must
be brought into compliance.” It stated that the shed “need[ed] to be removed or to
be moved to a compliant location.” The DNR required a “plan” for “enforcement
action,” absent which, negative consequences could occur. Specifically, residents

3
Arseneau pointed out that the Village allows enclosed trailers to stay for a week in a
park which is largely within a floodway, and it does not cite the trailer owners. But the only
person she specifically addresses is Eells. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d
633 (Ct. App. 1992) (we do not address undeveloped arguments).

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of the Village, which is a community participant in NFIP, could face higher
premiums for flood insurance, lose flood insurance through the program
altogether, and have their mortgages impacted. All of Arseneau’s property was
within the floodway, and the trailer option was not acceptable to the DNR.
Arseneau offered no alternative “plan” for “enforcement action” to the Village
other than removal or citation.

¶18 By contrast, before purchasing his storage unit, Eells wanted to
make sure he complied with the ordinances, and the Village clerk advised him that
the unit was acceptable. It was discovered later on that the clerk erred, and the
Village then requested that Eells move the storage unit. The clerk testified that
Eells has been cooperative in trying to work out a solution. Most significantly, no
DNR warnings were received with respect to Eells. Arseneau points to nothing to
suggest that the DNR’s identification of her property but not Eells’ is unfounded
or improper. Thus, there are “distinguishable legitimate prosecutorial factors” that
might have justified the nonprosecution of Eells at that time.

¶19 Arseneau relies almost exclusively on the notion that her citation
was discriminatory because she could not have brought a lawsuit against the
Village, whereas Eells could because of the clerk’s error in telling him that he
could place his storage unit on his property. There are several flaws with this
assertion.

¶20 Evidence of a threatened or retaliatory lawsuit by Eells is threadbare,
if nonexistent. As best as we can tell, the only purported evidence about a lawsuit
was the testimony of the clerk, who testified that she did not make any final
decisions about ordinance enforcement as that was the Village Board’s
responsibility. She testified that the Village and Eells were trying to work out a

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solution as a result of her error and that she “was very concerned about the Village
being sued for damages because I made a mistake.” Although it is understandable
that the clerk would be self-conscious about the risk of a lawsuit because she was
the one who made the error, there is no evidence that her concern was actually
based on any personal knowledge of such a suit (e.g., Eells told her he would sue).
Her testimony therefore really proves nothing about a lawsuit or, more
specifically, about a lawsuit being the reason Eells has not been cited. No one
from the Board testified, no exhibits were produced showing or implying that
Eells planned to sue if he was cited, and Eells himself testified, but said nothing
about a lawsuit. To the extent the circuit court made a finding, or implied one,
that the Village did not cite Eells because it would face a retaliatory lawsuit, it is
unsupported by the evidence. See Schreiber v. Physicians Ins. Co., 223 Wis. 2d
417, 426, 588 N.W.2d 26 (1999).

¶21 Further, if the Village considered the equitable impact of its
erroneous advice, Arseneau does not explain why that is not a legitimate factor
that might justify a different approach. Arseneau fails to show why discretionary
leeway with a person to whom the Village inadvertently gave bad advice would be
an impermissible consideration, much less persistently selective and intentionally
discriminatory. She does not demonstrate that the Village’s decision fell outside
of the “great latitude” and “degree of selectivity” afforded prosecutorial decisions.
Barman, 183 Wis. 2d at 186-87 (explaining that there is “no duty or obligation to
prosecute all complaints”). Arseneau also fails to explain how the clerk’s mistake,
and perhaps different treatment based on equitable considerations, vis-à-vis one
individual, confers the benefit of that mistake on others who are in violation.

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No. 2019AP541

Arseneau Did Not Make a Prima Facie Showing of Discriminatory Purpose

¶22 Arseneau’s failure to show the first prong is fatal to her claim and
sufficient for a reversal. Even if she had met that burden, we nonetheless conclude
that she failed to establish the second prong—discriminatory purpose.

¶23 Arseneau contends her prosecution was discriminatory because it
constituted an “arbitrary classification” based on her purported inability to sue the
Village whereas Eells could sue.

¶24 In the section above, we have already explained that Eells’ alleged
lawsuit was speculative in several respects—as to whether Eells was actually
considering it, as to whether the Village based its nonprosecution decision on it,
and as to why it would necessarily be a constitutionally impermissible
consideration. Moreover, Eells’ property was not then the subject of DNR
enforcement. Arseneau failed to show a discriminatory purpose arising from the
nonprosecution of Eells.

¶25 Arseneau asserts that Eells was favored over her as he ran an
important business, he could move his business out of town, and he repaired
certain Board members’ cars. In light of the evidence, however, Arseneau failed
to show that she was cited, and Eells not, on account of some impermissible,
arbitrary, vindictive, or illicit preferential basis.4

4
As noted, when the prosecution is solitary, the defendant’s claim may also be proven
by a “substantial showing” that the decision to prosecute was an attempt to prevent the exercise of
constitutional rights or was prompted by personal vindictiveness. Arseneau has not attempted to
show any such discriminatory purpose.

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¶26 Because Arseneau failed to make a prima facie showing of either a
discriminatory effect or purpose, we reverse the circuit court’s order dismissing
the Village’s action and remand for further proceedings.

By the Court.—Order reversed and cause remanded for further
proceedings.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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