After Years of Harassment--We're Going to Sue Our Town and County
“Governments are instituted among men, deriving their just powers from the consent of the governed.” --Declaration of Independence.
“All tyranny needs to gain a foothold is for people of good conscience to remain silent.” --Edmund Burke
What? A business can sue their government?
Well, we think we understood what those guys felt like who dumped a bunch of tea into the Boston harbor 248 years ago.
We’ve tried everything to be reasonable and work with our town and county, and they’ve thrown up every obstacle they could along the way.
So…what the hell. Let them defend their jerkery in court.
We engaged the same Milwaukee lawyers we used to sue Ron Johnson, Tom Tiffany, and Scott Fitzgerald for aiding and abetting the insurrection on January 6 to give Oneida County and the Town of Minocqua ONE LAST CHANCE to stop being jerks.
Read the letter we sent Oneida County in the many screen shots below.
It’s a bunch of legal jargon, but you can get the gist.
And, you actually can see the word “BALDERDASH” used in a sentence. We give our lawyer extra credit for that.
And here’s the context to all that haven’t followed the story.
All we want is to be able to put a beer garden on our property—you know, like most every other bar, brewpub, and taproom in Wisconsin can do.
The town has not only annexed land that was not theirs to stop us from building a beer garden, they have also forced us to create a parking lot that doesn’t fit on our property because they took the land from us that could have been used for parking.
Read that again. The Town took land from us that could have been used for parking and then forced us to put up a parking lot in the only space we have for people to drink our beer.
Like any red-blooded Wisconsinite, we simply refuse to let a corrupt old boys network control our destiny merely because they refuse to acknowledge the relentless march of time toward progress and justice.
In short, breweries should be able to serve beer. Just like dogs should be able to poop in their backyards.
September 14, 2022
VIA ELECTRONIC MAIL AND REGULAR MAIL
Oneida County Planning and Zoning Department
415 Menominee Street
Minocqua, WI 54548
Re: Constitutional Violations Committed by Oneida County Against Minocqua Brewing Company / Kirk Bangstad
Dr. Mr. Jennrich,
My firm, Laffey, Leitner & Goode, LLC (“LLG”) represents Minocqua Brewing Company (“MBC”) and Kirk Bangstad with respect to the First Amendment claims set forth in this letter. All further communications with respect to these claims should be directed exclusively to me. I am aware that MBC and Mr. Bangstad have ongoing negotiations about permit and variance applications with Oneida County concerning various land use issues, and with respect to those issues you should continue to communicate directly with MBC and its counsel, ....
The purpose of this letter is to advise you that the efforts by Oneida County and its officials, including yourself, to selectively enforce its ordinances against MBC, while refraining from such enforcement efforts with respect to numerous similarly-situated persons and entities, is a violation of the First Amendment’s guarantees of free speech and press. It is obvious that Mr. Bangstad’s political activism has earned him much admiration and support from the people of North Central Wisconsin, and MBC’s products have seen their popularity increase as Mr. Bangstad has become more and more outspoken in support of liberal and progressive political issues and candidates.
Unfortunately, it is equally obvious that the same vigorous political speech driving the increased popularity of MBC products is causing rage and desire for revenge among the conservative political leaders of Oneida County and its environs. The Republican power structure knows a threat when it sees one, and it is eager to use any means – even unconstitutional actions – to cripple MBC and Bangstad and neutralize if not eliminate their ability to rally support for progressive politicians and issues in North Central Wisconsin.
The elements of a First Amendment retaliation claim are well-established: MBC and Bangstad “must ultimately show that (1) [they] engaged in activity protected by the First Amendment; (2) [they] suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was ‘at least a motivating factor’ in the Defendants’ decision to take the retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009), quoting Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008). We will discuss these elements and demonstrate why they are easily satisfied later in this letter.
First, however, in order to refute the County’s likely main defense to these claims, we demonstrate why the existence of ordinance violations for which MBC has been cited does not defeat the First Amendment claim, but actually provides even greater support for it. Typically, where the government has probable cause to pursue enforcement action (whether criminal or civil) against a person or business, that person or business cannot bring a successful claim of First Amendment retaliation against the government. See Nieves v. Bartlett, 139 S. Ct. 1715, 1724 (2019). Only when there is no probable cause for government action may the claim proceed. Id.
There is “an important exception to the probable-cause defense.” Brewer v. Town of Eagle, 553 F. Supp. 3d 636, 647 (E.D. Wis. 2021) – and that exception applies with full force to authorize MBC’s claims against the County. In Nieves, the Supreme Court ruled that “the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” 139 S. Ct. at 1728. This exception is applied case-by-case, using common sense as the rule: a court “must consider each set of facts as it comes . . . and in assessing whether the facts supply objective proof of retaliatory treatment . . . common sense must prevail.” Id. at 1734.
In his recent Brewer decision, issued just over one year ago, conservative United States District Judge J.P. Stadtmueller (a Reagan appointee) ruled that the proof necessary to invoke the exception was a single email, written by a member of the Town Board that voted to take action against the plaintiff-activists, stating that the Board “had voted with emotion” because the plaintiffs had “literally ticked off all the board members with meeting comments and on facebook [sic].” See Brewer, 553 F. Supp. 3d at 547. The court ruled that it “accepts this as commonsense evidence that Plaintiffs were treated differently because of their exercise of free speech, even if Defendants had probable cause to pursue enforcement of municipal codes.” Id. at 647-48.
The most important aspect of Brewer for purposes of MBC’s claims against the County is that evidence that someone was treated more favorably than the plaintiff is not necessary to qualify for the probable-cause requirement exception; instead, it is sufficient when there is a statement of discriminatory motivation – that is, a desire to punish a person for engaging in protected speech – even when there is no evidence about how others were treated. This emphasizes the fact that common sense is the guiding principle.
And there is far more than common sense meeting the requirements of Nieves and Brewer to support MBC’s claims: there is evidence of actual discriminatory treatment, not only in the existence of numerous businesses at 317 E. Front Street and 329 E. Front Street allowed to operate without obtaining the permit that the County has uniquely demanded of MBC, but through the history of actions directed at MBC based on its protected First Amendment activity, including but not limited to your own illegal cease and desist letter dated September 29, 2020 ordering MBC to remove a large Biden sign on its premises (1) in reliance on a plainly unconstitutional statute while (2) the County allowed numerous Trump signs and signs voicing support for other Republicans as large as or larger than MBC’s Biden sign to remain undisturbed.
We start by discussing the County’s discriminatory treatment of MBC at its 329 E. Front Street and 317 E. Front Street locations. Over the last few years, the following businesses have operated at those addresses, and none were cited for violating the ordinance in the manner that the County has cited MBC, nor to our knowledge were any even threatened with a citation:
- Wheeler’s Café
- Dagney’s Café
- A yarn and fabric store, name unknown
- A shoe repair and sales shop, name unknown
- Orthotics store, name unknown
- Mike Scribner, CPA
- Biwan & Associates, CPAs
- Wisconsin Insurance Associates
- Wisconsin Benefit Planning
- Amos Investments
Suddenly, out of nowhere, after many years of businesses of all kinds operating at the addresses in question without a word of concern from the County, it is the presence of MBC and only the presence of MBC that warrants citations – the presence of a business that proclaims its progressive politics repeatedly and loudly, from radio shows to the names of its beers. Tell whatever explanation you can contrive to the judge; we don’t believe the County will have any credibility whatsoever.
Adding to the evidence of selective prosecution will be the County’s effort to have MBC’s Biden sign taken down during the 2020 Presidential campaign because it exceeded the maximum size for a political sign under Section 9.78(E)(4) of the County’s Zoning and Shoreland Protection Ordinance. First, there is no doubt that the County allowed dozens (if not more) of equally large Trump signs to remain in place without sending any threat letters such as the one you sent to MBC’s Mr. Bangstad on September 29, 2020. On its face, this is discriminatory conduct that helps explain the County’s current actions.
Second, and worse, the County’s letter sought to enforce a clearly unconstitutional ordinance against MBC, emphasizing the County’s animus toward its political stances. Under Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) – a United States Supreme Court case that was more than five years old when you wrote your threatening letter – a municipal ordinance regulating signs is deemed to be “content-based” if “the restrictions in the [ordinance] that apply to any given sign . . . depend entirely on the communicative content of the sign.” Id. at 2227. This is undeniably the case under the Oneida County sign ordinance. A sign that is “political” is subjected to the restrictions of Section 9.78(E)(4), including the restriction to 32 square feet in surface area (id., (E)(4)(a)) and during the “election campaign season” as defined by Wisconsin statute (id., (E)(4)(d)). A on-premise sign that is not “political,” on the other hand, may be up to 64 square feet per face if it is between 0 and 100 feet from a right-of-way (id., (B)(1)(a)1), and up to 250 square feet per face if it is more than 100 feet from a right of way (id., (B)(1)(a)1).
The observer has to read a sign to know whether the more restrictive provisions for political signs or the more lenient rules governing nonpolitical on-premise signs apply. That means, in turn, that the rigorous “strict scrutiny” standard controls the validity of the ordinance measured against the requirements of the First Amendment. Gilbert, 135 S. Ct. at 2231. Strict scrutiny requires the County “to prove that the restriction [of political signs] furthers a compelling interest and is narrowly tailored to achieve that interest.” Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011).
The Reed Court’s reasoning shows that this is a burden the County cannot carry. First, there is no legitimate reason, let alone a compelling state interest, to disfavor signs communicating political speech – which is at the core of the First Amendment’s protections – vis a vis commercial on-premise signs in terms of both size and the time period over which they may be displayed. Second, there is no apparent tailoring of the means imposed by the political sign ordinance to the objectives it might conceivably serve. It cannot be aesthetic, because the County allows much larger (and presumably more unsightly) signs in the “purely commercial” setting. For much the same reasons, the County cannot justify the political sign restrictions on grounds of traffic safety, because there is no reason to believe smaller signs pose less of a distraction to drivers than the larger signs permitted by Section 9.78(B)(1). As a result, the County’s threats to enforce an unconstitutional ordinance against MBC provide a strong inference that it harbors an animus against MBC based on MBC’s advocacy for Democratic candidates and progressive political causes.
The County likely will try to respond to these arguments by claiming it acts only when there is a complaint, and there were complaints against MBC but not any of these other businesses or political signs. Balderdash! Oneida County cannot outsource compliance with the commands of the First Amendment to its residents. More important, as the District Court held in Brewer, it is the County’s obligation to come forward with evidence that it enforces the law against others without regard to their political activity, not MBC’s burden to show the opposite: “Further, Defendants do not offer evidence that they take similar enforcement actions against similarly situated property owners.” 553 F. Supp. 3d at 656. Taking action only upon citizen complaints heightens, not diminishes, a property owner’s concern that he will be singled out for enforcement based upon improper political reasons. Finally, as in Brewer, this argument improperly ends the inquiry at the investigatory stage; a mere investigation may properly be traced to a complaint, but taking action is solely and exclusively the province of the government. Id. at 648.
Having disposed of the County’s principal defense, we revisit the elements of MBC’s claim. They are: MBC and Bangstad “must ultimately show that (1) [they] engaged in activity protected by the First Amendment; (2) [they] suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was ‘at least a motivating factor’ in the Defendants’ decision to take the retaliatory action.” Bridges, 557 F.3d at 546. All three are apparent on the factual record here.
First, no one can dispute that MBC regularly and aggressively engages in speech protected by the First Amendment. Second, the District Court in Brewer expressly found that the fines and other adverse consequences of ordinance violations would deter average persons from engaging in free speech. 553 F. Supp. 3d at 656. The result here would be the same.
Third, and again as in Brewer, the very same conduct that establishes the grounds for the probable-cause exception also supports a strong inference that the County acted with a purpose to retaliate against MBC for its previous advocacy and to intimidate it from continuing to exercise its first amendment rights. See Brewer, 553 F. Supp. 3d at 648, 656. Allowing ten different businesses to operate at 329 E. Front and 317 E. Front over years and years without ever requiring any of them to pull a permit, then doing a U-turn to aim directly at MBC and require that it alone obtain the permit that so many others were allowed to do without is direct evidence of selective prosecution, and the only thing that separates MBC from its predecessors in that space is its relentless First Amendment activity.
This letter presents ample evidence that will not only establish the applicability of the probable-cause exception, but satisfy the test for injunctive relief preventing ongoing violations of the First Amendment. You must surely know that once discovery begins, MBC will obtain information about the private Facebook group dedicated to disparaging Mr. Bangstad, which claims several County Board members as enthusiastic participants. That evidence alone will sink the County’s chances of prevailing on the merits, either at the injunction stage or at trial.
For the next ten (10) business days, MBC and Mr. Bangstad are willing to resolve this matter on the following terms: (1) the County must dismiss the pending citations with prejudice, and agree not to issue any more citations for violations of the permit ordinance on the same or similar grounds; (2) the County must agree to work in good faith with MBC and Attorney ... to resolve all other land use issues relating to MBC’s occupancy and use of the 329 E. Front Street property; and (3) the County must pay MBC’s attorney fees incurred in investigating its First Amendment claims and preparing this demand letter. It is in the County’s best interest to resolve this matter without the expense and inconvenience of litigation.
Very truly yours,
LAFFEY, LEITNER & GOODE, LLC