COURT OF APPEALS DECISION DATED AND FILED September 9, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT I |
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City of Plaintiff-Respondent, v. Robert F. Zellmer, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
¶1 FINE, J. Robert F. Zellmer appeals a circuit-court
order in effect affirming a municipal-court judgment finding him guilty on the
parties’ stipulated facts of violating Milwaukee, Wis., Ordinance § 200-42-2-b. See Wis. Stat. § 800.14 (appeal from
decision by municipal court). He
contends that the ordinance violates both state and federal fair-housing laws,
and, also, runs afoul of 42 U.S.C. §
1983.[1]
We affirm.
I.
¶2 Zellmer
was charged with unlawfully offering to use a building contrary to Milwaukee’s
zoning restrictions, in violation of Milwaukee, Wis., Ordinance § 200-42-2-b. Section 200-42-2-b provides, as material: “It
shall be unlawful to … offer to maintain, occupy or use, any building, structure, premises or part
thereof … in violation of any regulation of this code.”
¶3 The building Zellmer
owns, and which is the focus of this appeal, is in an area of
¶4 Zellmer contended before the circuit court and argues here
that, as noted, the citation issued to him violates various overriding laws. Some of Zellmer’s contentions before the
circuit court are not renewed on appeal, and, therefore, are abandoned. See State v. Johnson, 184
II.
A. Was there an
“offer”?
¶5 Zellmer contended before the circuit court that there was no
“offer” under the ordinance. He has not
argued this issue on appeal. Accordingly,
we do not address it. See Johnson, 184
B. Do the ordinances under
which Zellmer was convicted violate 42 U.S.C. § 3607(b)(1)?
¶6 Zellmer argued before the circuit court that, as phrased by
him in his submission to the circuit court, the ordinances under which he was
convicted “violate[d] the Fair Housing Act 42 U.S.C. 3607(b)(1).” 42 U.S.C. § 3607(b)(1) provides in full: “Nothing in this subchapter limits the
applicability of any reasonable local, State, or Federal restrictions regarding
the maximum number of occupants permitted to occupy a dwelling. Nor does any provision in this subchapter
regarding familial status apply with respect to housing for older persons.” Zellmer does not explain why or how any of the
C. Do the ordinances under
which Zellmer was convicted violate other provisions of the federal Fair
Housing Act?
¶7 In an apparent realization that 42 U.S.C. § 3607(b)(1) is a
weak meniscus upon which to float his contention that he was unlawfully
convicted of violating Milwaukee, Wis., Ordinance § 200-42-2-b, Zellmer’s
appeal briefs seek to enfold other provisions of the federal Fair Housing Act. The essence of his contention is that, as
expressed in his main brief on this appeal, enforcement of the
D. Do the ordinances under
which Zellmer was convicted violate Wis. Stat.
§ 106.50(1)?
¶8 Wisconsin Stat. § 106.50(1) provides in full:
It is the intent of this section to render unlawful discrimination in housing. It is the declared policy of this state that all persons shall have an equal opportunity for housing regardless of sex, race, color, sexual orientation, disability, religion, national origin, marital status, family status, lawful source of income, age or ancestry and it is the duty of the political subdivisions to assist in the orderly prevention or removal of all discrimination in housing through the powers granted under ss. 66.0125 and 66.1011. The legislature hereby extends the state law governing equal housing opportunities to cover single-family residences which are owner-occupied. The legislature finds that the sale and rental of single-family residences constitute a significant portion of the housing business in this state and should be regulated. This section shall be deemed an exercise of the police powers of the state for the protection of the welfare, health, peace, dignity and human rights of the people of this state.
Other than quote this section
and some decisions that invoke general principles of statutory construction,
Zellmer does not explain how or why the Milwaukee ordinances under
consideration here violate § 106.50(1),
and he does not point to any other provision of state law that he alleges makes
unlawful what the City did here. Accordingly,
we decline to address this “issue” further. See Vesely, 128
E. 42 U.S.C. § 1983.
¶9 Finally, in a largely undeveloped argument, Zellmer contends that enforcement of the ordinances was an unlawful taking of his property in violation of due process because the property that is the subject of this appeal “is in a university neighborhood … and most of his tenants are students contributing to rent a multi-bedroom unit.” Accordingly, Zellmer argues, the “ordinances[’]s ban on rental to no more than three unrelated people is the direct and proximate cause of defendant[’]s loss of income.”
¶10 As the City points out, whether Zellmer might have a claim against the City under 42 U.S.C. § 1983 is matter separate from the issue whether § 1983 may be interposed as a defense in a civil forfeiture action. Section 1983 provides in full:
Every person who, under color
of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress, except that in any action
brought against a judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of
Congress applicable exclusively to the
This provision gives a tort
remedy for the deprivation of rights within its purview. City of Monterey v. Del Monte Dunes at
Monterey, Ltd., 526
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1]
On