Highway case leads to another splintered decision from Supreme Court

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The Wisconsin Supreme Court is letting a Darien woman drive ahead with a lawsuit over two towns’ decision to approve a highway-reconstruction project.

The high court’s ruling Tuesday stemmed from a dispute over a highway project that reconfigured an intersection where Rock-Walworth County Line Road meets Rock County Road M, near the towns of Johnstown and Richmond.

The Rock County Board of Supervisors had followed standard procedures and approved the project before any actual work started. Johnstown and Richmond, though, took an unusual step by waiting until afterward to give their blessings to both the project itself and related highway orders, which are needed to authorize changes to local roads.

Margaret Pulera, a resident of the town of Darien, asked two circuit courts to review the towns’ actions, alleging the new intersection was unsafe.

A judge dismissed her lawsuit in Rock County after finding that she had not met her deadline for filing a lawsuit challenging the project. Crucially, the judge ruled that Pulera had 30 days from her receipt of the highway orders to bring her suit.

Across the county line, another judge also found that Pulera’s challenge should be dismissed for failing to meet a deadline. But this judge contradicted the first judge on when the 30-day clock began ticking. The Walworth County judge found that the starting point was when the town boards made their decision.

The judges’ disagreement stemmed from ambiguity that appears when the statutes governing appeals of highway orders and appeals of municipal administrative decisions – Wis. Stat. § 68.13 and Wis. Stat. § 82.15  – are read together. The state Supreme Court had called attention to the ambiguity in previous cases but never resolved it.

So, when Pulera filed appeals in both her cases, the state Court of Appeals responded by consolidating them and asking the justices to settle the matter once and for all. Going before the state’s high court, Pulera presented her own argument about the 30-day clock, contending it started ticking on the day the highway order was entered at the register of deeds. The towns, in contrast, contended that the starting point was when the municipal boards took their votes.

In a 4-2 decision, the Supreme Court on Tuesday reversed the two lower courts’ rulings. Now Pulera’s case will be able to go forward in either Walworth or Rock County Circuit Court, whichever venue the parties agree is best. Justice Dan Kelly did not take part in the Supreme Court’s ruling because he had represented Pulera before his appointment to the bench Gov. Scott Walker last year.

Even while overturning the two lower courts’ ruling against Pulera, the Supreme Court’s decision Tuesday did little to resolve any ambiguity in the statutes. The reason: Even though four justices agreed that the lower courts’ decision should be overturned, only three put their names to the Supreme Court’s “lead opinion.” To set a binding precedent, such rulings need to have the support of at least four justices on the seven-member court.

The lead opinion, written by Chief Justice Pat Roggensack, sided with Pulera in finding that a resident who wants to challenge a highway order issued by a town board has 30 days from the date the order was entered with the register of deeds to ask a circuit court for a review.

That interpretation best fits the language and structure of the statutes and provides parties with a consistent, easily-determined date that triggers the 30-day period, wrote Roggensack.

Disagreement on that point came from Justice Rebecca Bradley. Although also finding that the two circuit court judges’ decisions should be reversed, Bradley concluded that the language in the statutes is irreconcilable and that a remedy should come from the state Legislature, not the courts.

The high court has recently been issuing more fractured decisions, according to the Marquette University history professor Alan Ball, who has been tracking the court’s decisions for three decades. By Ball’s count, the court issued six lead opinions in the 43 decisions it handed down in its 2015-16 terms, making up about 14 percent of the total. Over the court’s last 19 terms, an average 2 percent of its decisions were lead opinions.