Andrew Wimer
Andrew Wimer · August 9, 2021

MILWAUKEE—A small, veteran-owned farm in the Town of Eagle won an early court victory in its legal challenge against fines and fees that were issued after the owners criticized local officials. In December 2020, Erica and Zach Mallory, owners of Mallory Meadows, teamed up with the Institute for Justice (IJ) to protect their home and business after town officials threatened them with more than $20,000 in fines and fees as punishment for the Mallorys’ speech.

“We’re thrilled that the federal court granted our request for a preliminary injunction, protecting Erica and Zach from continued harassment by the town while they seek to vindicate their constitutional rights,” said IJ Attorney Kirby West. “We’ll continue to fight alongside Erica and Zach as this lawsuit moves forward.”

The Town of Eagle in Waukesha County, Wisconsin, looks like many other places in the Badger State, with its rural homes and small farms. But, as Erica learned, this town has a dark side. After Erica began speaking out in support of neighbors, and against the town’s leadership, she quickly found her own small farm in the crosshairs. The farm was subjected to numerous inspections, threatened with tens of thousands in fees, and forced to make unwanted and unnecessary changes. Now, with the order that U.S. District Court Judge Stadtmueller issued late Friday, the Mallorys are protected from further inspections and enforcement actions while their lawsuit continues.

“Wisconsin’s state motto is ‘Forward’ and our family is thrilled to see our case against the Town of Eagle moving forward,” said Erica. “Our hope is that the progress continues as we continue to speak up for what is right for our family and the citizens of the town.”

The town’s enforcement against the Mallorys raises many red flags. First, the government cannot punish individuals for speaking out, regardless of whether code violations exist. When Erica asked one of the board members about the board’s decision to pursue ordinance enforcement against the Mallorys, Erica was told that she had “ticked off all the board members with [her] meeting comments and on Facebook,” and so “the board members voted with emotion.” As the federal court observed, this email provides strong evidence of the town’s improper motivations and a First Amendment violation.

Second, the town’s code enforcement is handled by a private law firm that, due to its hourly pay, directly benefits from initiating enforcement actions and drawing them out. When the Mallorys tried to resolve their enforcement action out of court, the firm explained that it would only agree to not pursue more than $20,000 in fines if the Mallorys agreed to cover all costs and fees—including the firm’s bills—related to the enforcement. The town asked the federal court to dismiss the Mallorys’ claim related to this improper profit incentive, but the court declined. Instead, Friday’s court order sends these legal claims back to state court for further consideration.

IJ also represents fellow Town of Eagle residents Joe and Annalyse Victor in a separate suit to protect them from abusive fines and fees. The Victors’ case is currently before the Wisconsin Court of Appeals, where the Victors have asked the court to reverse an $87,900 judgment that was entered against them for parking their tractor-trailers on their own 8.5-acre property. In addition to being unconstitutionally excessive, the judgment was entered in violation of Wisconsin law and the procedures required by the U.S. Constitution.

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