AB804: Bill Text

LRB-3273/3

RPN:kjf:jf

2007 - 2008 LEGISLATURE

2007 Assembly BILL 804

February 13, 2008 - Introduced by Representatives M. Williams, Gronemus, Ballweg, Bies, Gunderson, Mursau, Murtha, Nerison, A. Ott, Petersen, Suder and Tauchen, cosponsored by Senators Grothman, Kedzie, A. Lasee, Olsen and Schultz. Referred to Committee on Property Rights.

AB804,1,3 An Act to renumber and amend 823.02; and to create 823.02 (1g) and 823.02 (2) and (3) of the statutes; relating to: the authority of the Department of Justice and public nuisance actions.

Analysis by the Legislative Reference Bureau

Under current law, the Department of Justice (DOJ), counties, and local units of government may bring an action to enjoin a public nuisance. Generally, the costs of bringing the action and defending the action are born by each party, except for disbursements and specific amounts for expert and attorney fees. This bill requires a court to award the defendant all of the defendant's costs and expenses, including reasonable attorney fees, expert fees, and engineering fees, if the court determines that the defendant's activity was not a public nuisance. The bill also prohibits DOJ from bringing an action to enjoin a public nuisance if the alleged activity is not in violation of a statute, rule, permit, or ordinance.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB804, s. 1 Section 1. 823.02 of the statutes is renumbered 823.02 (1m) and amended to read:

AB804,2,14 823.02 (1m) An action to enjoin a public nuisance may be commenced and prosecuted in the name of the state, either by the attorney general on information obtained by the department of justice, or upon the relation of a private individual, sewerage commission created under ss. 200.01 to 200.15 or a county, having first obtained leave therefor from the court. An action to enjoin a public nuisance may be commenced and prosecuted by a city, village, town or a metropolitan sewerage district created under ss. 200.21 to 200.65 in the name of the municipality or metropolitan sewerage district, and it is not necessary to obtain leave from the court to commence or prosecute the action. The same rule as to liability for costs shall govern as in other actions brought by the state. No stay of any order or judgment enjoining or abating, in any action under this section, may be had unless the appeal is taken within 5 days after notice of entry of the judgment or order or service of the injunction. Upon appeal and stay, the return to the court of appeals or supreme court shall be made immediately.

AB804, s. 2 Section 2. 823.02 (1g) of the statutes is created to read:

AB804,2,19 823.02 (1g) In this section, "litigation expenses" means the sum of the costs, disbursements, and expenses, including reasonable attorney fees, expert witnesses, and engineering fees, necessary to prepare or participate in a court action under this section.

AB804, s. 3 Section 3. 823.02 (2) and (3) of the statutes are created to read:

AB804,2,24 823.02 (2) No action may be commenced and prosecuted under sub. (1m) by the attorney general if the activity, use, or practice alleged to be a nuisance is not in violation of any statute, rule, order, permit, approval, or local ordinance or regulation.

AB804,3,4 (3) Notwithstanding s. 814.04 (1) and (2), the court shall award litigation expenses to the defendant in any action brought under sub. (1m) in which the court finds that the defendant's activity, use, or practice that was alleged to be a public nuisance was not a public nuisance.

AB804, s. 4 Section 4 . Initial applicability.

AB804,3,7 (1) This act first applies to actions commenced on the effective date of this subsection.

AB804,3,8 (End)