01-0106 Murray v. City of Milwaukee

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“Since neither Murray nor the officers he represented have a cause of action against the City for attorney fees under Wis. Stat. § 895.35, it logically follows that they do not have a cause of action under § 895.35 even if the City unreasonably denies payment.

Therefore, even if we take the allegations in the complaint as true – that the City had a practice and policy of reimbursing attorney fees and costs incurred by officers in connection with a defense against citizen complaints-neither Murray nor the officers have a viable claim for payment under § 895.35. Similarly, even if we were to accept as true Murray’s allegation that the City failed to pay him because of political concerns, he is still not entitled to relief under § 895.35.5. …

“At bottom, Murray appears to be arguing that because Wis. Stat. § 895.35 uses the word ‘may,’ the City’s exercise of its authority under this statute is subject to judicial review based on a standard of reasonableness and equity. However, nothing in the statute suggests that this is the case. We conclude that ‘may’ in the statute simply means that a municipality has the authority to pay the attorney fees described in this section, if it so elects.”

Judgment affirmed.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Donegan, J., Vergeront, P.J.

Attorneys:

For Appellant: John F. Fuchs, Milwaukee; Marcia A. Snow, Milwaukee

For Respondent: Rudolph M. Konrad, Milwaukee; Grant F. Langley, Milwaukee