Andrew Wimer
Andrew Wimer · December 3, 2020

WAUKESHA, Wis.—The Town of Eagle in Waukesha County, Wisconsin, looks like many other places in the Badger State, with its modest homes and small farms. But Eagle is not the idyllic town it appears to be. If residents get on the wrong side of the town board, they can find themselves with tens of thousands of dollars in fines and fees for residential code violations. The town’s attorney, a private law firm, has even asked a judge to threaten jailtime if residents cannot pay up.

Annalyse and Joseph Victor and Erica and Zach Mallory both saw their dreams of rural freedom come crashing down when code enforcers targeted their homes. But the Town of Eagle cannot use code enforcement to punish its critics and to enrich a private law firm. That is why the Mallorys and the Victors are teaming up with the Institute for Justice (IJ) to take the fight for their rights to Wisconsin’s state courts.

“Code enforcement in the Town of Eagle is out of control in so many ways,” said IJ Attorney Kirby West. “Codes exist to protect public safety, but in Eagle citations are handed out selectively and in amounts that are unconstitutionally excessive. Given that the power to assess violations has been farmed out to a private law firm—paid by the hour—it is sadly not surprising that enforcement seems to prioritize profit, not public safety.”

Eagle imposed $87,900 in fines and fee on Annalyse and Joseph Victor for a variety of violations related to a few trucks that were parked on their nearly 10 acres of rural property. Joseph is a semi-truck driver, and the couple bought the property in part because the previous owner parked his trucks there. After being notified of violations by a letter, they spent months trying to work it out with the town.

When the town’s attorney filed the fines in county court, the Victors never received notice of the hearing. At that hearing, the judge signed off on the fines and fees but struck out a provision sought by the town that would have threatened Annalyse with six months in jail if the couple could not immediately pay. It was only later that the Victors first found out how much the town was demanding from them and that the court had ruled for the town. They are now asking the judge to roll back that ruling so that they can contest their fines.

“The Town of Eagle is trying to ruin us with fines on top of fines for things we didn’t even know were wrong,” said Joseph Victor. “When we searched for a home, we looked for a rural property where we could park trucks without bothering our neighbors. Eagle didn’t turn out to be the place we thought it would be, but this fine makes it impossible for us to sell our home and leave.”

Erica and Zach Mallory thought they had found their little slice of heaven in Eagle. In 2016, they purchased nearly four acres of land where they raise chickens and lambs, grow fruits and vegetables, and maintain beehives. But Erica found out the town had a dark side when she started regularly attending council meetings. And after Erica spoke out in support of neighbors, her small Mallory Meadows Farm was inspected.

The town threw the book at them for minor violations like an unpermitted flower planter, tall grass and the location of a barn that was on the property when they purchased the land. They are now being threatened with more than $20,000 in fines and fees. When Erica asked one of the board members about the board’s decision to pursue the Mallorys for ordinance violations, she was told that she had “ticked off all the board members with [her] meeting comments and on [F]acebook,” and so “the board members voted with emotion.”

“Local codes have to be enforced fairly and without favoritism, not because town officials don’t like what you have to say at meetings,” said IJ Attorney Alexa Gervasi. “Targeting someone for their political speech is a grave violation of the First Amendment and equal protection. Governments cannot go out of their way to punish you because you have criticized them.”

IJ is representing the Victors and Mallorys in separate legal actions with the same goal: stopping fines and fees that were unconstitutionally assessed and that violate the Constitution’s limits on excessive fines. In a 2019 IJ case, Timbs v. Indiana, the U.S. Supreme Court established that states and cities are subject to the 8th Amendment’s limits on excessive fines.

“The Constitution requires that punishment cannot be so harsh that it doesn’t reflect the seriousness of the offense, but the Town of Eagle issues ruinous fines for minor infractions,” said IJ Attorney Marie Miller. “Taxation by citation may help cities pad their bottom line, but it’s residents who suffer from cities’ greedy, and often unconstitutional, practices.”

IJ has represented homeowners in Indio, California, whose code citations came along with expensive bills they owed to the private law firm that prosecuted them. In Doraville, Georgia, and Pagedale, Missouri, IJ clients were fined for petty violations like improperly stacked firewood or mismatched curtains. And in Dunedin, Florida, IJ is defending a homeowner threatened with foreclosure over fines for having long grass.