Murphy v. Town of Geneva Wisconsin

Filing 25

ORDER signed by Magistrate Judge William E Duffin on 4/6/2015. IT IS THEREFORE ORDERED plaintiff's 5 motion for preliminary injunction is denied. IT IS FURTHER ORDERED plaintiff's 23 and 24 motions to cite supplemental authorit y are granted. Telephonic Rule 16 conference set for 4/15/2015 09:00 AM before Magistrate Judge William E Duffin. The parties shall call the court's conference line at 888-278-0296 and use access code 8322317# to join the call. The parties shall file a report in accordance with Rule 26(f) not later than 4/10/15. See Order for additional details. (cc: all counsel) (mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARTIN J. MURPHY,
Plaintiff,
v.

Case No. 15-CV-222

TOWN OF GENEVA WISCONSIN,
Defendant.
ORDER
Plaintiff Martin J. Murphy filed the present action on February 26, 2015
challenging on Constitutional grounds an ordinance of the Town of Geneva that
prohibits the advertisement for short-term rentals of properties in residential areas.
(ECF No. 1.) The following day he moved for a temporary restraining order and
preliminary injunction. (ECF No. 5.) The matter was initially randomly assigned to
Magistrate Judge William E. Callahan, Jr. Because a motion requesting immediate relief
was filed and the parties had not yet consented to the jurisdiction of a magistrate judge,
the motion was directed to a district judge. The case was then reassigned to this court
upon the retirement of Magistrate Judge Callahan. Before the district judge resolved the
pending motion, all parties consented to the jurisdiction of this court. On March 30,

2015 this court denied the motion for a temporary restraining order. (ECF No. 20.) A
hearing on plaintiff’s motion for a preliminarily injunction was then held on April 2,
2014.
Following the hearing, Murphy filed two separate motions to cite additional
authority. (ECF Nos. 23, 24.) Even though Murphy should have provided the authority
before the hearing so as to permit the Town an adequate opportunity to respond at the
hearing, the court shall nonetheless grant the motions.
Turning to the merits of Murphy’s request for a preliminary injunction,
Walworth County, which includes the Town of Geneva, generally prohibits the shortterm rental of properties in residential areas. (See ECF No. 17-1 at 9 (Walworth Cnty.
Ord. Sec. 74-131).) The Town of Geneva passed Ordinance No. 77 whose stated purpose
“is to provide the Town with a means to prohibit the solicitation for the unlawful use of
residential properties prohibited by the laws of the State of Wisconsin and Walworth
County Ordinances from renting to transients for a period of less than one calendar
month or 30 consecutive days whichever is less.” (ECF No. 17-1 at 3 (Twn. of Geneva
Ord. 77, sec. 1).) Section 3 of the ordinance states:
It is prohibited for any person, enterprise, managing agency or rental
agent to advertise, solicit or facilitate the rental for less than one calendar
month or 30 consecutive days whichever is less of a short term unit
located within residential districts of the Town of Geneva. Such activity is
prohibited, whether by mailings, print advertisements, internet listings, or
other means, and is a violation of this Ordinance.
(ECF No. 17-1 at 4 (Twn. of Geneva Ord. 77, sec. 3).)
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Murphy contends that Section 3 bans all advertising of short-term rentals
without regard to whether the rental is lawful or not. Because it bars advertising of both
legal and illegal activity, it is his position that the ordinance is facially unconstitutional
under the First Amendment. The Town responds that Section 1 makes it clear that the
ordinance is limited to advertising rentals that are unlawful. If Murphy’s rentals are
lawful, as he contends they are, then in the Town’s view he is not barred from
advertising them under the ordinance.
Under Wisconsin law, traditional rules of statutory interpretation are applied in
the interpretation of an ordinance. Schwegel v. Milwaukee Cnty., 2015 WI 12, ¶ 22, 859
N.W.2d 78; Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶ 143 n.48, 358 Wis. 2d 1, 851
N.W.2d 337. When reviewing the meaning of an ordinance, the court cannot read an
individual section in isolation but rather must examine the ordinance as a whole.
Milwaukee Police Ass'n v. Hegerty, 2005 WI 28, ¶ 20, 279 Wis. 2d 150, 161, 693 N.W.2d 738,
744; see also Smith v. City of Brookfield, 272 Wis. 1, 5, 74 N.W.2d 770, 772 (1956) (quoting 6
McQuillin, Municipal Corporations (3rd ed.) sec. 20.54, p. 132). Constructions that would
lead to constitutional objections should be avoided. Milwaukee v. Milwaukee Amusement,
Inc., 22 Wis. 2d 240, 251, 125 N.W.2d 625, 631 (1964).
Reading the ordinance in its entirety, the court reads Section 1 as an integral part
of Section 3 and construes the ordinance as barring only the advertisement of shortterm rentals that are unlawful. Short-term rentals that are lawful are not affected by the

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ordinance and may be freely advertised. Because this ordinance proscribes advertising
related only to unlawful activity, it does not violate the First Amendment. See Cent.
Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 566 (1980).
Murphy concedes that he is making only a “facial challenge” to the ordinance,
not an “as applied challenge.” (ECF No. 22, ¶¶3-7.) Whether he may lawfully rent his
property on a short-term basis is not a question before this court. Short-term rentals are
regulated by Walworth County, not the Town. The County is not a party to this action
and the meaning of the Walworth County ordinances is not before this court. (See ECF
No. 22, ¶ 9.) Because the court concludes that, based upon the record presently before
the court, the ordinance is facially constitutional, Murphy has failed to show an
adequate likelihood of success on the merits, see ACLU of Ill. v. Alvarez, 679 F.3d 583, 589
(7th Cir. 2012), and therefore the extraordinary relief of a preliminary injunction is not
appropriate.
IT IS THEREFORE ORDERED that the plaintiff’s motion for a preliminary
injunction (ECF No. 5) is denied.
IT IS FURTHER ORDERED that the plaintiff’s motions to cite supplemental
authority (ECF Nos. 23, 24) are granted.
IT IS FURTHER ORDERED that the court shall conduct a telephonic Rule 16
conference on April 15, 2015 at 9:00 AM.

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•

The parties shall be prepared to discuss the matters set forth in Civ. L.R.
16(a)(1).

•

The parties shall call the court’s conference line at 888-278-0296 and use
access code 8322317# to join the call.

IT IS FURTHER ORDERED that not later than April 10, 2015 the parties shall
file a report in accordance with Rule 26(f). This report should include:
•

A brief description of the nature of the case, including a statement
regarding the basis of subject matter jurisdiction.

•

Whether the parties contemplate amending the pleadings, by joining
parties or for other reasons.

•

Any motions that are contemplated at this time.

•

Such other matters as may affect the scheduling of this case for final
disposition.

Dated at Milwaukee, Wisconsin this 6th day of April, 2015.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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