Peter C. Tharp v. Village of Roberts

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 7, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2021AP2209 Cir. Ct. No. 2020CV266

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

PETER C. THARP,

PLAINTIFF-APPELLANT,

V.

VILLAGE OF ROBERTS, VILLAGE BOARD OF ROBERTS, WILLARD MOERI,
KATY KAPAUN, MARY SHERMON, SHAWN DAKOVICH, CHERYL JOHNSON,
CHUCK PIZZI, RANDY WAUGHTAL AND THOMAS MANN,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for St. Croix County:
EDWARD F. VLACK, III, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

¶1 GILL, J. Peter C. Tharp sued the Village of Roberts and various
other defendants (collectively, the Village Board), seeking declaratory judgment
and a writ of mandamus. Tharp’s claims were based on the Village Board’s
No. 2021AP2209

failure to “issue any municipal ordinance violations or citations regardless of
parallel state statutes[,] effectively bypass[ing]” and “abolishing” the Village’s
municipal court. Later, in the context of his declaratory judgment claim, Tharp
argued that the Village Board had violated separation of powers principles “by
ceasing enforcement of its municipal ordinances.”

¶2 The circuit court granted the Village Board’s motion to dismiss
Tharp’s mandamus claim, and, later, granted summary judgment in favor of the
Village Board on Tharp’s declaratory judgment claim. The court concluded that,
under Vretenar v. Hebron, 144 Wis. 2d 655, 663, 424 N.W.2d 714 (1988)—a
mandamus case—the Village Board’s decision not to enforce municipal
ordinances was discretionary and did not violate separation of powers principles.
Thus, according to the court, Tharp’s mandamus claim could not lie, and his
declaratory judgment claim was barred as a matter of law. The court subsequently
entered a final order affirming its prior orders dismissing the mandamus claim and
granting summary judgment on the declaratory judgment claim, and Tharp now
appeals from that order.

¶3 We conclude that Tharp’s mandamus claim is moot because the
municipal court was lawfully abolished prior to this appeal. Further, we conclude
that the circuit court properly granted summary judgment in favor of the Village
Board on Tharp’s declaratory judgment claim. Under our supreme court’s holding
in Vretenar, the Village Board’s decision not to enforce the municipal ordinances
was discretionary. Because it was a discretionary decision, declaratory judgment
was not appropriate. Therefore, we affirm the court’s order.

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BACKGROUND

¶4 The relevant facts are undisputed.1 In 2004, the Village of Roberts
established a municipal court. Tharp was elected in 2017 as a municipal court
judge to a four-year term ending in April 2021.

¶5 In March 2019, in contemplation of abolishing the municipal court,
the Village Board voted to “authorize[] the then Village Police Chief … to stop
issuing citations for municipal ordinance violations, regardless of parallel state
statutes, and to transmit any and all citations to St. Croix County Circuit Court by
issuing only citations for violations of adopted parallel state statutes.” According
to the minutes of the Village Board meeting, the Village attorney explained that
the Village was “still required to pay the fees associated with the [municipal]
court” until the Village Board could formally abolish the court, but that stopping
the enforcement of ordinances “sen[t] the signal that [it was] planning to not
continue the [municipal] court when the time c[a]me[].” The Village attorney also
stated that he met with staff at the St. Croix County Circuit Court, who explained
that they had “the ability to handle the capacity” of the Village Board’s directive.

¶6 In August 2020, the Village Board unanimously voted to abolish the
municipal court at the end of Tharp’s then-current term. Tharp continued to
receive his full municipal court judge salary until the court was abolished at the
end of his term in April 2021.

1
Tharp has never argued in this case that the municipal court was abolished for an
unlawful reason. Therefore, like the circuit court, we do not find relevant Tharp’s factual
assertions regarding why the Village Board ultimately abolished the municipal court.

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¶7 In August 2020, Tharp filed suit against the Village Board, seeking a
writ of mandamus and declaratory relief. Specifically, Tharp requested that the
circuit court issue an order requiring the Village Board “to immediately enforce
municipal ordinance violations and cease any attempt to bypass” the municipal
court. Further, Tharp sought a declaration that “municipal ordinance violations
must be enforced by the [Village], and those violations be brought to the
municipal court.”

¶8 The Village Board filed a motion to dismiss both claims. The circuit
court granted the motion with respect to the mandamus claim, but it denied the
motion with respect to the declaratory judgment claim. Later, Tharp filed a
motion for summary judgment on the declaratory judgment claim and argued that
the Village Board had violated separation of powers principles and exceeded its
authority. The court denied Tharp’s motion for summary judgment, and it then
granted summary judgment in the Village Board’s favor, dismissing Tharp’s
declaratory judgment claim. See WIS. STAT. § 802.08(6) (2021-22).2

¶9 Tharp now appeals. Additional facts will be provided below as
necessary.

DISCUSSION

I. Mandamus claim

¶10 “A writ of mandamus is a discretionary writ that is issued to compel
the performance of a particular act by a lower court or governmental officer or

2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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body.” Klein v. DOR, 2020 WI App 56, ¶36, 394 Wis. 2d 66, 949 N.W.2d 608. A
writ of mandamus is properly issued only upon the showing of four
prerequisites: “(1) a clear legal right; (2) a positive and plain duty; (3) substantial
damages; and (4) the absence of any other adequate remedy at law.” Id.; see
also Voces De La Frontera, Inc. v. Clarke, 2017 WI 16, ¶11, 373 Wis. 2d 348,
891 N.W.2d 803. “[T]he duty to act on the part of the government official must be
‘clear and unequivocal’; a circuit court erroneously exercises its discretion by
issuing such a writ when the duty to be performed requires the exercise of
discretion.” Klein, 394 Wis. 2d 66, ¶36 (citation omitted).

¶11 On appeal, the Village Board argues that Tharp’s mandamus claim is
moot because the municipal court was abolished in April 2021.

¶12 As an initial matter, Tharp contends that the Village Board’s
mootness argument is “waived” because the Village Board did not raise this
argument before the circuit court.3 Whether the Village Board raised the issue in
the circuit court or not is immaterial to this particular appeal because, generally, a
3
We interpret Tharp’s waiver argument to actually be one of forfeiture. See State v.
Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (explaining that waiver and
forfeiture are two distinct legal concepts). Tharp also contends that the Village Board’s mootness
argument is not properly before this court because the Village Board did not raise the issue “by
motion … based on some event that occurred … during the pendency of the appeal.”

In support of his motion argument, Tharp cites Ziemann v. Village of North Hudson,
102 Wis. 2d 705, 711, 307 N.W.2d 236 (1981). In Ziemann, our supreme court granted a
plaintiff’s petition for review from a decision of this court. Id. Prior to the supreme court’s
decision, the defendant filed a motion to dismiss the appeal on the ground that a recent action
regarding a property in question had rendered the issue on appeal moot. Id. The supreme court
agreed, concluding that the issue was moot when this court issued its decision in favor of the
defendant. Id. Ziemann neither cited to nor created new law that requires a party to file a motion
to dismiss on mootness grounds prior to an appellate court’s decision. Therefore, Ziemann has
no bearing on the timeliness or manner of the Village Board’s mootness argument here. Nor are
we aware of any such rule that would apply to the facts of this case. See WIS. STAT.
RULE 809.14.

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respondent may raise any argument that would support a lower court’s action
regardless of whether the argument was raised previously. See State v. Holt, 128
Wis. 2d 110, 124-25, 382 N.W.2d 679 (Ct. App. 1985); superseded by statute on
other grounds, WIS. STAT. § 940.225(7). “Furthermore, it is well-established law
in Wisconsin that an appellate court may sustain a lower court’s ruling ‘on a
theory or on reasoning not presented to the lower court.’” Blum v. 1st Auto &
Cas. Ins. Co., 2010 WI 78, ¶27 n.4, 326 Wis. 2d 729, 786 N.W.2d 78 (citation
omitted). We also note that the mandamus claim was undisputedly not moot when
the court granted the Village Board’s motion to dismiss in January 2021 because
the municipal court was not abolished until April 2021. Thus, we will consider the
Village Board’s mootness argument.

¶13 Mootness is a question of law we review de novo. Wisconsin State
J. v. Blazel, 2023 WI App 18, ¶41, 407 Wis. 2d 472, 991 N.W.2d 450. “An issue
is moot when its resolution will have no practical effect on the underlying
controversy. Because moot issues do not affect a live controversy, this court
generally declines to reach them.” Id., ¶42 (citation omitted).

¶14 Tharp’s challenge to the circuit court’s dismissal of his mandamus
claim is indeed moot. His amended complaint requested an order requiring the
Village “to immediately enforce municipal ordinance violations and cease any
attempt to bypass” the municipal court, and on appeal, he asks us to “reverse the
[circuit] court’s decision.” As mentioned earlier, the municipal court was
abolished in April 2021. As such, even if we decided that the court erred as a
matter of law by granting the Village Board’s motion to dismiss Tharp’s
mandamus claim, our reversal would have no “practical effect on the underlying

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controversy.” See id. (citation omitted). There would be no government official
or body for us to direct action toward.4

¶15 Still, Tharp asks this court to consider the merits of his mandamus
claim. “We may … choose to address moot issues in ‘exceptional or compelling
circumstances.’” Portage County v. J.W.K., 2019 WI 54, ¶12, 386 Wis. 2d 672,
927 N.W.2d 509 (citation omitted). Specifically, we may address a moot issue if
at least one of five exceptions applies:

(1) the issue is of great public importance; (2) the issue
involves the constitutionality of a statute; (3) the issue
arises often and a decision from [the appellate] court is
essential; (4) the issue is likely to recur and must be
resolved to avoid uncertainty; or (5) the issue is likely of
repetition and evades review.

Blazel, 407 Wis. 2d 472, ¶42 (citation omitted).

¶16 Tharp focuses his arguments on exceptions one and five. According
to Tharp, the first exception applies because “[o]ther municipalities could take
similar action to that of the Village,” and, therefore, the issue is “one of interest
to … municipalities and municipal judges in Wisconsin.” Similarly, Tharp cites
the fifth exception, arguing that other municipalities can follow the Village’s plan
of abolishing a municipal court prior to appellate review, and thus escape that
review.

4
Tharp also contends that because “the circuit court reached the merits [of the
mandamus claim], dismissing [his] appeal as moot is not proper since the Village [Board] has not
asserted that the [court] erred by reaching the merits.” However, as noted above, the Village
Board could not raise the mootness issue in the circuit court at the time that court considered the
merits of Tharp’s request for a writ of mandamus. We therefore deem Tharp’s contention without
merit.

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¶17 With regard to the fifth exception, Tharp overlooks the fact that our
supreme court has explained that the “‘capable of repetition, yet evading review
doctrine’ is limited to situations involving ‘a reasonable expectation that the same
complaining party would be subjected to the same action again.’” See J.W.K., 386
Wis. 2d 672, ¶30 (citations omitted). Because Tharp does not contend that the
Village Board will reinstate the municipal court in the future—or that he would
seek election to a position with such a court—exception five does not apply here.

¶18 Further, Tharp’s challenge to the dismissal of his mandamus claim is
not of great public importance and interest. As we will explain in the next section,
the issues presented in this case fall squarely within present case law, regardless of
whether on review of a mandamus claim or a declaratory judgment claim.
See Vretenar, 144 Wis. 2d at 663. Because the merits of Tharp’s mandamus claim
seeking “to immediately enforce municipal ordinance violations and cease any
attempt to bypass” the municipal court have previously been addressed in
Vretenar, a decision in this case is not of great public importance or interest.

II. Declaratory judgment

¶19 “The power of a [circuit] court to declare rights is broad in scope.
There is specific authority under [WIS. STAT. § 806.04(1)] to ‘declare rights,
status, and other legal relations whether or not further relief is or could be
claimed.’” Loy v. Bunderson, 107 Wis. 2d 400, 407, 320 N.W.2d 175 (1982)

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(citing § 806.04(1)). In order to maintain a declaratory judgment claim, a
justiciable controversy must exist.5 See id. at 409-10.

¶20 The circuit court in this case granted summary judgment in favor of
the Village Board, dismissing Tharp’s declaratory judgment claim on the merits.
We review a grant of summary judgment pursuant to Wisconsin’s Uniform
Declaratory Judgments Act de novo, as we would any summary judgment
decision. Olson v. Town of Cottage Grove, 2008 WI 51, ¶33, 309 Wis. 2d 365,
749 N.W.2d 211; WIS. STAT. § 806.04(7).

A. The Village Board did not exceed its authority.

¶21 The circuit court, relying on Vretenar, concluded that “the Village
Board exercised discretion, the remedy for which is neither [m]andamus nor
[d]eclaratory [j]udgment.” Specifically, the court held that “the discretion to
decide what cases are summoned before the municipal court is held by the
Village” and that “[t]he power of the municipal court is to dispose [of] the cases
that come before it, not to have control over what cases come before it.”

¶22 Tharp argues that the circuit court incorrectly granted summary
judgment in favor of the Village Board on his declaratory judgment claim because
the Village Board exceeded its authority when it ceased enforcement of all

5
The Village Board raises the question of whether Tharp’s declaratory judgment claim is
justiciable. See Loy v. Bunderson, 107 Wis. 2d 400, 409-10, 320 N.W.2d 175 (1982) (listing the
four factors necessary for a declaratory judgment claim to be justiciable). Because the circuit
court addressed the merits of Tharp’s declaratory judgment claim, and because we ultimately
agree with the court’s conclusion, we will assume without deciding that Tharp’s claim is
justiciable. See, e.g., Papa v. DHS, 2020 WI 66, ¶¶17, 31, 393 Wis. 2d 1, 946 N.W.2d 17
(analyzing the merits of a declaratory judgment decision made via summary judgment).

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municipal ordinance violations. According to Tharp, Vretenar is distinguishable
from the facts of this case.

¶23 In Vretenar, a town was “involved in roughly a dozen separate
hearings in the … circuit court, traffic and misdemeanor court, and the United
States bankruptcy court in its attempts to enforce” town ordinances against a
resident, Glenn Staege. Vretenar, 144 Wis. 2d at 659. Despite these attempts, the
plaintiffs—the Vretenars—filed a summary judgment motion seeking a writ of
mandamus compelling town officials to prosecute and enforce the town ordinances
to a greater degree against Staege. Id. at 658, 666. Specifically, the Vretenars
alleged that the town “had failed to perform nondiscretionary legal duties.” Id. at
658-59. The circuit court granted summary judgment in favor of the town
officials, ruling that mandamus would not lie to compel them to perform
discretionary acts. Id. at 659.

¶24 On appeal, our supreme court concluded that “the prosecution and
enforcement of municipal ordinance violations are discretionary duties such that
their performance cannot be compelled through mandamus.” Id. at 663. The
court reasoned:

The plaintiffs would have us distinguish between the
prosecutorial duties of district attorneys and those of town
board members acting through the town attorney. We
reject this distinction. While the former involves criminal
laws and the latter involves civil forfeiture ordinances, the
prosecutorial duties are similar in that each is responsible
for pursuing with discretion violations of laws under the
office’s jurisdiction.

The town board, acting through the town attorney, is not
required to prosecute every infraction of the municipal
ordinance code.

….

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To hold otherwise would be tantamount to divesting a
municipality of the discretion necessary for effective and
efficient law enforcement.

Id. at 664-65. The court similarly rejected the plaintiffs’ claim that, “while town
officials have discretion to enact or modify ordinances, once they are enacted, all
discretion of the town board ends with respect to enforcement and prosecution of
the laws.” Id. at 665. According to the court:

Plaintiffs base this assertion upon their interpretation of
selected powers of the town board: first, that the town
chairman is empowered by statute to “[s]ee that town
orders and ordinances are obeyed”; and second, that the
town constable has been empowered by the town board “to
enforce all local ordinances.” However, the statutory duties
of the district attorney are also preceded by the mandatory
word “shall.” [WISCONSIN STAT. §] 59.47 [(1985-86)]
provides that the district attorney “shall … [p]rosecute all
criminal actions before any court for her or his county….”
This court has not interpreted this language to limit in any
way the prosecuting attorney’s discretion on whether to
prosecute a particular case.

Vretenar, 144 Wis. 2d at 665-66 (first and second alterations in original; citations
omitted). The court explained that mandamus for discretionary acts is appropriate
“in some circumstances to compel a governmental body to exercise discretion in
the first instance.” Id. at 666. However, the court noted that “[o]nly where the
legislature has designated limits of the prosecutorial discretion and defined
situations in which the governmental body must act can performance be compelled
through mandamus.” Id.

¶25 According to Tharp, “Vretenar does not and cannot stand for the
proposition that the Village [Board] has unfettered discretion to not enforce any
municipal ordinance[].” He argues that, unlike here, the town in Vretenar did
exercise its discretion by attempting to enforce the ordinances. Tharp contends

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that the Village Board’s decision not to enforce any ordinance “is the opposite of
the exercise of discretion.” The Village Board’s actions in this case, according to
Tharp, were not contemplated by the Vretenar court’s reliance on prosecutorial
discretion because a prosecutor cannot “stop enforcing any and all laws.” In
support of this particular argument, Tharp argues that the Village’s police chief is
required by ordinance to “see that all laws and ordinances of the village and state
are enforced.”

¶26 We conclude that Vretenar is on point, and that the circuit court did
not err in relying upon it to dismiss Tharp’s declaratory judgment claim. Vretenar
did not hold that the town in that case was required to enforce the ordinances
against the resident, although the town attempted to do so. Instead, the court held
that “[o]nly where the legislature has designated limits of the prosecutorial
discretion and defined situations in which the governmental body must act can
performance be compelled through mandamus.” Vretenar, 144 Wis. 2d at 666.
Tharp fails to cite any legislative mandate dictating that the Village Board was
required to enforce any ordinance. Tharp’s arguments are particularly problematic
because municipalities are not required to have ordinances at all, nor are they
required to have municipal courts. See WIS. STAT. §§ 66.0103, 755.01(1), (2).
The fact that a municipality has enacted ordinances and a municipal court does not
mean that the municipality is without discretion to not enforce and prosecute those
ordinances in municipal court.

¶27 We are similarly unpersuaded by Tharp’s reliance on the Village
ordinance requiring the police chief to “see that all laws and ordinances of the
village and state are enforced” for his proposition that a municipality cannot stop
enforcement of all ordinance violations. As noted above, our supreme court in
Vretenar rejected a similar argument where the plaintiffs stated that all discretion

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of the town board ended once the ordinances were enacted. Vretenar, 144 Wis. 2d
at 665. The Vretenar court rejected that argument by citing to WIS. STAT.
§ 59.47, which provided that the district attorney “shall … [p]rosecute all criminal
actions before any court for her or his county.” See Vretenar, 144 Wis. 2d at
665-66 (alteration in original). Like Vretenar, we hold that the police chief
ordinance does not “limit in any way the [Village Board’s] discretion on whether
to prosecute a particular case” or a particular ordinance. See id.

¶28 Additionally, the Village Board was not simply stopping the
enforcement of all village ordinance violations. Instead, the Village Board was
transferring the venue for enforcement of village ordinances with statutory
parallels to the circuit court in preparation for the municipal court’s eventual
abolishment. See WIS. STAT. § 755.01(2). This conclusion is evident from the
minutes of the March 11, 2019 Village Board meeting, which reflect that the
Village Board discussed the “approval to move all citations to St. Croix County
Circuit Court.” The police chief was, therefore, effectively permitted to continue
enforcement of certain ordinance violations, but at the statutory level and in the
circuit court.

¶29 Further, Tharp does not explain where the line should be drawn
between a discretionary decision to enforce ordinances, as dictated by Vretenar,
and a requirement that some ordinances must be prosecuted, as Tharp suggests.
Instead, he simply states that ordinances should “be prosecuted in municipal court
when appropriate.” (Emphasis added.) As Vretenar explained, “[P]rosecutorial
duties are similar [to municipal duties] in that each is responsible for pursuing
with discretion violations of laws under the office’s jurisdiction.” Vretenar, 144
Wis. 2d at 664. In other words, generally speaking, it is not the province of a
court to dictate which crimes a prosecutor seeks to enforce. See County of

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Kenosha v. C & S Mgmt., Inc., 223 Wis. 2d 373, 400, 588 N.W.2d 236 (1999); cf.
WIS. STAT. § 968.02(3) (allowing a circuit court to permit the filing of a complaint
in specific circumstances “[i]f a district attorney refuses or is unavailable to issue a
complaint”). We refuse to draw a seemingly arbitrary line for Tharp that would
encroach on the principle of prosecutorial discretion in the municipal context.

B. The Village Board did not violate separation of powers principles.

¶30 Tharp also contends that the Village Board violated separation of
powers principles because “[a] [m]unicipal court is a part of the judicial branch,
not [a] department of the Village under the control of [the Village] Board.”
According to Tharp, the Village Board “abolished the judiciary’s constitutional
grant of power in having exclusive jurisdiction over municipal ordinances.”

¶31 “The doctrine of separation of powers, while not explicitly set forth
in the Wisconsin [C]onstitution, is implicit in the division of governmental powers
among the judicial, legislative and executive branches.” Barland v. Eau Claire
County, 216 Wis. 2d 560, 572, 575 N.W.2d 691 (1998). We review purported
violations of separation of powers principles de novo. Id.

¶32 Article VII, section 14 of the Wisconsin Constitution grants the
legislature the power to “authorize each city, village and town to establish a
municipal court.” See WIS. CONST. art. VII, § 14. “All municipal courts shall
have uniform jurisdiction limited to actions and proceedings arising under
ordinances of the municipality in which established.” Id. Additionally, the
legislature has provided municipal courts the “exclusive jurisdiction over an action
in which a municipality seeks to impose forfeitures for violations of municipal
ordinances of the municipality that operates the court.” WIS. STAT. § 755.045(1).

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A municipal court created under WIS. STAT. ch. 755 “is a coequal branch of the
municipal government.” WIS. STAT. § 755.01(1). The constitution also provides:

The judicial power of this state shall be vested in a unified
court system consisting of one supreme court, a court of
appeals, a circuit court, such trial courts of general uniform
statewide jurisdiction as the legislature may create by law,
and a municipal court if authorized by the legislature under
section 14.

WIS. CONST. art. VII, § 2. Therefore, a “municipal court is a court that is
constitutionally a part of the court system,” and separation of powers principles
apply to such courts. See City of Milwaukee v. Wroten, 160 Wis. 2d 207, 219-22,
466 N.W.2d 861 (1991).

¶33 In support of his argument that the Village Board impeded on
separation of powers principles, Tharp relies on Barland and he appears to argue
that the Village Board infringed upon the municipal court’s exclusive authority
(sometimes referred to by Tharp as a “function” or “power”) “to hear violations of
municipal ordinances.” Tharp’s arguments are undeveloped and supported only
by conclusory assertions. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d
633 (Ct. App. 1992). Nonetheless, we will attempt to address them.

¶34 First, Tharp’s statement regarding “exclusive authority” appears to
be based upon WIS. STAT. § 755.045(1). However, as outlined above, that statute
states that exclusive jurisdiction is limited to actions “in which a municipality
seeks to impose forfeitures for violations of municipal ordinances.” See id. Tharp
does not explain how a municipality infringes upon separation of powers
principles by choosing not to enforce municipal ordinances when the statute grants
the municipal court exclusive jurisdiction if the municipality “seeks” to enforce an

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ordinance. Section 755.045(1) does not require ordinances to be enforced. Nor
does Tharp point to any other statute or constitutional provision to the contrary.

¶35 Second, Tharp relies on Barland, where our supreme court held that
“a circuit court judge has the exclusive, inherent constitutional authority to prevent
the unilateral removal of his or her judicial assistant despite the terms of a
collective bargaining agreement.” Barland, 216 Wis. 2d at 566. Specifically, the
agreement provided “that in the event of a layoff, an affected employee ha[d] the
right to invoke his or her seniority and move or ‘bump’ into a position held by an
employee with less seniority within the same bargaining unit.” Id. at 568.

¶36 In reaching its conclusion, the Barland court first analyzed “whether
the subject matter of the legislation f[ell] within the power that is constitutionally
granted to the legislature.” Id. at 575. After the court concluded that the
legislature had the constitutional power to regulate county employment, the court
considered “whether the subject matter of the legislation also f[ell] within the
judiciary’s constitutional grant of power.” Id. at 575-77.

¶37 In answering this question, the court determined that circuit courts
have the “inherent power” “to prevent enforcement of the bumping provision
against judicial assistants to circuit court judges.” Id. at 579. The court defined a
circuit court’s inherent power to include those “powers which are ‘essential to the
expedition and proper conducting of judicial business.’” Id. (citation omitted).
This power extends to “[t]he general control of the judicial business before” a
circuit court, which means the power “to control disposition of causes on its
docket with economy of time and effort.” Id. (citation omitted).

¶38 Our supreme court explained that “[t]he courts of this state may call
upon their inherent powers when needed to protect themselves against actions that

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would ‘unreasonably curtail [their] powers or materially impair [their] efficiency’
in expediting and conducting their judicial business.” Id. at 580-81 (second and
third alterations in original; citation omitted). In terms of the collective bargaining
agreement, the bumping provision did more than “regulate the employment of
county personnel,” it also “control[led] or commandeer[ed]” the judiciary’s
inherent power outlined above.6 Id. at 584-85 (formatting altered).

¶39 The facts in Barland are far from those present in the instant case.
The Village Board’s actions did not infringe upon the municipal court’s power to
control “the judicial business before” the court or “control disposition of causes on
its docket.” Rather, the actions of the Village Board related to issues arising
before conferring power to the municipal court. In other words, the Village Board
did not instruct Tharp on how to operate his courtroom or restrict his ability to do
so in any way. The Village Board did not affect the internal workings of his
office, as did the collective bargaining agreement in Barland.

¶40 Furthermore, the municipal court was created by the Village
pursuant to legislative approval. See WIS. CONST. art. VII, § 14; WIS. STAT.
§ 755.01(1). For example, this is not a situation where the legislature is
attempting to remove a court’s power granted to the court under the state
constitution. There is no separation of powers violation because the Village is the
executive and legislative branch when it comes to the municipal court. The

6
“There are generally three areas in which courts have exercised inherent authority.”
City of Sun Prairie v. Davis, 226 Wis. 2d 738, 749, 595 N.W.2d 635 (1999). Because Tharp
appears to focus on only one of the three inherent powers—the power “to control disposition of
causes on its docket with economy of time and effort”—we need not analyze the remaining two.
See Barland v. Eau Claire County, 216 Wis. 2d 560, 579, 575 N.W.2d 691 (1998) (citation
omitted).

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Village can create ordinances, and it can determine to enforce them or not,
pursuant to Vretenar. The Village Board’s discretionary decision to not enforce
the ordinances is no different from a prosecutor deciding not to enforce a statute.
Put differently, the Village Board’s decision is no more a violation of separation of
powers principles than a prosecutor’s decision not to prosecute certain crimes—
that is to say, no violation at all. See Vretenar, 144 Wis. 2d at 664-65.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

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