Updated: Apr 21
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In 2015, I wrote a post covering the town of Trempealeau, Wisconsin, scare gun ordinances, and the Klein family. That post involved a 2013 challenge to the town’s scare gun ordinance requiring anyone seeking to use a scare gun to apply for a permit from the city and meet a minimum set of conditions. In 2017, the town changed the ordinance to ban the use of scare guns inside the town with no exceptions. The Kleins also challenged this ordinance for a violation of the state’s right-to-farm law. The court dismissed the lawsuit on procedural grounds, and the state’s court of appeals affirmed that decision.
The Kleins had been using scare guns as a part of their agricultural operation since 1962. Complaints from neighbors led to the town developing the 2013 ordinance which required a permit before using a scare gun. The Kleins applied for and received a permit to operate a scare gun but were later cited for violations of the permit. The Kleins unsuccessfully challenged the 2013 permit in court; learn more here. The town enacted a new ordinance in 2017 eliminating the use of scare guns for any reason. The Kleins continued to use their scare gun and were cited for continued violations of the 2017 ordinance.
The Kleins brought an action seeking a declaratory judgment against the town. In this action, the Kleins argued that the scare gun ordinance 1) was an unconstitutional taking, 2) was arbitrary and capricious, 3) was preempted by the right-to-farm law, and 4) that the Kleins had a vested right to use scare guns. The trial court dismissed the complaint, and the Kleins appealed that decision but later voluntarily withdrew the appeal and also pleaded guilty to the ordinance violations. Then, the Kleins started a new action that alleged the original four claims. The town moved to dismiss the claims, and the trial court agreed. The Kleins then appealed that dismissal.
Court of Appeals Decision
Before we get into the appeals court decision, we need to discuss a legal restriction on lawsuits. Typically, courts will not allow lawsuits that are “collateral challenges” to prior lawsuits. A collateral challenge is attacking a previous judgment by bringing a new case. For example, in a divorce case, Tony is ordered to pay child support to Carol. Tony potentially would be barred later for bring a lawsuit to demonstrate he is not the father of the child. Only on limited grounds, such as fraud or irregularities, will a collateral attack be allowed.
In the appeal before the court, the town argues that the rule against collateral attacks bars this current lawsuit. The court agrees that this present suit is a barred collateral attack. The lawsuit in question involves the same 2017 ordinance and the same legal theories used in the original declaratory judgment suit that the Kleins later voluntarily dismissed. The court disagreed with Kleins that the voluntary dismissal allowed them to revive the lawsuit.
The court also barred the Kleins’ claims under the doctrine of claim preclusion. Claim preclusion bars re-litigation of the same claims with the same parties, same subject matter, and the same claims if there is a final judgment in the original lawsuit. In Wisconsin, the courts have adopted a three-part test to determine preclusion. The three parts are:
Identity of the parties or their privies in the prior and present lawsuits;
Identity of the causes of action in the two lawsuits; and
A final judgment on the merits in a court of competent jurisdiction.
The court agrees that the town met the first two elements in this case. We have the same parties in the two cases and the exact causes of action in the two cases. The court rejected Kleins’ arguments that the dismissal of the first lawsuit was not a final judgment. The Kleins argued that their original attorney failed to develop a record in the original lawsuit. The court disagreed, pointing out that the dismissal had happened while the case was on appeal, the circuit court had developed a lengthy decision on the original matter, and the dismissal had been on the merits, leaving no opportunity to refile the original claims. For those reasons, the court affirmed the lower court’s decision to dismiss the lawsuit.
Although the adage is if at first, you don’t succeed, try, and try again, this does not always work with lawsuits. As the court highlights, the Kleins were attempting to have a third day in court to bring the same claims which had not worked in the past. This case highlights the fact that we only typically get one shot on claims, and frequently have to live with outcomes, not in our favor.
This case also highlights another issue: the Kleins had historically used scare guns on their property. Scare guns have a legitimate purpose in agricultural operations. Still, from the facts presented, the Kleins may have misused this equipment and had not been willing to modify their use in a way to prevent neighbor conflicts. The neighbors successfully got the zoning ordinances changed to prevent the use of scare guns because of this. In several cases, these kinds of zoning changes would fall outside the protection of the right-to-farm law, and the operator may have to change practices to meet the new zoning requirements.
Goeringer, Paul, City Ordinances, Scare Guns, and Right-to-Farm Laws (UMD, Sept. 16, 2015).
Klein v. Town of Trempealeau, 2019AP1878, 2021 WL 1181321 (Wis. Ct. App. Mar. 30, 2021).