January 21, 2021

Erica and Zach Mallory purchased property in Eagle, Wisconsin, to establish Mallory Meadows in 2016. They hoped the family farm would one day enable them to retire from their day jobs. Unfortunately, their dream of idyllic rural living turned into a nightmare when they found themselves in the crosshairs of the town’s code enforcement scheme. 

When Erica spoke out on behalf of neighbors she believed had been unfairly targeted by code enforcers, she found her own small farm under those enforcers’ microscope. The Mallorys became the subjects of an enforcement action threatening $20,000 in liability for offenses like having too-tall grass, an unpermitted flower box, and two livestock more than the limit. 

The connection between the Mallorys’ political engagement and the enforcement actions against them is not speculative. In an email to Erica, a board member noted that the Mallorys had “ticked off all the board members with [their] meeting comments,” leading the board to “vote with emotion” to pursue the enforcement action. 

Targeting residents in retaliation for political expression violates the right to criticize the government that is core to the First Amendment’s guarantee of free speech. And the First Amendment is not the only constitutional protection Eagle’s fines and fees system disregards. The town engaged a private firm, the Municipal Law & Litigation Group, as its town attorney. The firm charges an hourly rate to direct enforcement actions, which gives it a strong incentive to draw those actions out. Then, in addition to subjecting victims to monthslong headaches, the firm puts them—not the town—on the hook for its bills. As a result, inconsequential violations become tens of thousands of dollars in liability. 

Take for example the $87,900 judgment against Joe and Annalyse Victor. Joe, a truck driver, noticed that the prior owner of his 10 acres of rural land parked his trucks on the property. Joe confirmed that his neighbors didn’t mind and then did the same. Then Eagle cited the Victors for violations related to their trucks and, as they scrambled to comply, enforced the fines in court without notifying the Victors of the hearing. The town’s attorney went so far as to ask the judge to threaten Annalyse with six months in jail unless the couple paid every dollar immediately. That makes sense when you consider that more than $20,000 of the jaw-dropping $87,900 judgment was attorney fees payable to—you guessed it—the Municipal Law & Litigation Group.

The town of Eagle is small, but the constitutional problems with its code enforcement process are massive. And, as the cover story of this issue of Liberty & Law describes, these problems are endemic in similar enforcement schemes in cities, large and small, across the country. That’s why the Mallorys and Victors joined with IJ to take a stand against this rampant violation of constitutional rights and put an end to local governments’ ability to prioritize their own financial gain over public health and safety.

Kirby Thomas West is an IJ attorney.

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