Writ of Mandamus-Abolishing Municipal Court

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WI Court of Appeals – District III

Case Name: Peter C. Tharp v. Village of Roberts

Case No.: 2021AP002209

Officials: Gill, J.

Focus: Writ of Mandamus-Abolishing Municipal Court

In 2004, the Village of Roberts established a municipal court. Tharp was elected in 2017 as a municipal court judge to a four-year term ending in April 2021. In March 2019, in contemplation of abolishing the municipal court, the Village Board voted to “authorize[] the then Village Police Chief … to stop issuing citations for municipal ordinance violations, regardless of parallel state statutes, and to transmit any and all citations to St. Croix County Circuit Court by issuing only citations for violations of adopted parallel state statutes.”

Tharp sued the Village of Roberts and various other defendants (collectively, the Village Board), seeking declaratory judgment and a writ of mandamus. Tharp’s claims were based on the Village Board’s failure to “issue any municipal ordinance violations or citations regardless of parallel state statutes[,] effectively bypass[ing]” and “abolishing” the Village’s municipal court. Later, in the context of his declaratory judgment claim, Tharp argued that the Village Board had violated separation of powers principles “by ceasing enforcement of its municipal ordinances.”

The circuit court granted the Village Board’s motion to dismiss Tharp’s mandamus claim, and, later, granted summary judgment in favor of the Village Board on Tharp’s declaratory judgment claim. The court concluded that, under Vretenar v. Hebron, 144 Wis. 2d 655, 663, 424 N.W.2d 714 (1988)—a mandamus case—the Village Board’s decision not to enforce municipal ordinances was discretionary and did not violate separation of powers principles. Thus, according to the court, Tharp’s mandamus claim could not lie, and his declaratory judgment claim was barred as a matter of law. The court subsequently entered a final order affirming its prior orders dismissing the mandamus claim and granting summary judgment on the declaratory judgment claim, and Tharp appeals.

Tharp’s mandamus claim is moot because the municipal court was lawfully abolished prior to this appeal. The appeals court concludes that the circuit court properly granted summary judgment in favor of the Village Board on Tharp’s declaratory judgment claim. Under the supreme court’s holding in Vretenar, the Village Board’s decision not to enforce the municipal ordinances was discretionary. Because it was a discretionary decision, declaratory judgment was not appropriate.

Affirmed.

Decided 11/7/23

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