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Attorney questions high court’s jurisdiction over land sale

By: Matt Taub//January 29, 2015//

Attorney questions high court’s jurisdiction over land sale

By: Matt Taub//January 29, 2015//

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Milwaukee developer Rick Barrett wants to build a $120 million, 44-story high-rise on the site of the Downtown Transit Center. Some opponents of The Couture believe that the transit center was built on filled-in lakebed. (Rendering courtesy of Barrett Visionary and Rinka Chung Architecture Inc.)
Milwaukee developer Rick Barrett wants to build a $122 million, 44-story high-rise on the site of the Downtown Transit Center, but the state Supreme Court first has to determine if it has jurisdiction over the matter. (Rendering courtesy of Barrett Visionary and Rinka Chung Architecture Inc.)

Milwaukee County wants the state Supreme Court to weigh in on its proposed sale of land for The Couture high-rise development, but the court first has to determine if it has jurisdiction over the matter.

In December, the Milwaukee County Board of Supervisors granted developer Rick Barrett an option to buy the Downtown Transit Center in order to replace it with a 44-story, $122 million development on Milwaukee’s lakefront.

Since the land sits on lake bed that was later filled in by rail companies, there was a question of whether the sale would violate the Public Trust Doctrine, a provision in the state constitution mandating that lakes and rivers remain open to the public. But the state Legislature passed a law in April 2014 redefining the shoreline so the sale would not violate the doctrine.

Last week, attorneys for the county petitioned the state’s highest court to take up the matter as an “original action” and make a declaration asserting that the Legislature’s action was valid, giving the county control of the entire property. The petition was a proactive step, as opposed to waiting for advocacy group Preserve Our Parks, which is against the sale, to file suit. It also bypassed a “quiet title” proceeding that would have normally worked through lower courts.

Original action petitions are infrequent, with the court receiving around 10 a year, and granting only a handful, according to a 2005-06 edition of the Wisconsin Blue Book. The director of state courts office did not immediately provide a more recent number.

In re Heil, 230 Wis. 428 (1939) established that in order for the justices to grant such a petition, there can be no facts in dispute and the case must involve an issue of statewide importance.

That is where the two sides, before even getting to the merits of the case, already disagree.

“This question is very important, and under the circumstances calls for speedy and authoritative determination by the Supreme Court,” said Paul Bargren, the county’s corporation counsel.  “I don’t think there’s any question that this issue will end up in the Supreme Court, and so our purpose is to bring it directly to the court in the first place.”

But an attorney for Preserve Our Parks, Bill O’Connor of Wheeler, Van Sickle & Anderson SC, said the testimony the Legislature relied on to pass the law was in dispute and needed to be examined.

“I think it’s important to understand that, historically, the court has placed a high premium on having settled facts before the Supreme Court, which is mainly an appellate court, addresses decisive legal questions,” O’Connor said. “If there are open factual disputes, the court recognizes you need to settle that before you can issue legal opinions from the highest court in the state.”

Howard Schweber, a professor of political science and legal studies at the University of Wisconsin-Madison, said original action petitions, while unusual, often are given credence in highly politicized cases.

“It’s infrequent, but granted in cases where there’s no possibility of the case being ruled on by a lower court and that being the end of the story,” he said. “Urgency as to time is also a factor.”

An alternative to a lengthy process in lower courts, O’Connor said, could be for the Supreme Court to take the case, but then refer fact finding procedures to circuit courts, special masters or referees.

According to the Wisconsin Courts Internal Operating System, the petition will be assigned to a court commissioner to analyze and orally report on the matter to the chief justice, who would then determine a date for it to be considered by the court at a conference. The petition for a ruling will then be granted if four or more justices of the seven-member court vote in favor. The court may arrange for oral arguments, if deemed necessary.

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