Case 2023CV000250 Document 33 Filed 03-01-2023 Page 1 of 23

FILED
03-01-2023
Clerk of Circuit Court
Brown County, WI
STATE OF WISCONSIN CIRCUIT COURT BROWN COUNTY 2023CV000250
BRANCH 5

WISCONSIN STATE SENATE,

SENATOR ANDRE JACQUE,
ANTHONY THEISEN and
JANE DOE,

Plaintiffs, Case No. 23-CV-250

v.

THE CITY OF GREEN BAY and

ERIC GENRICH,

Defendants.

BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION FOR A

TEMPORARY RESTRAINING ORDER

INTRODUCTION

This is an odd “emergency” request for a temporary restraining order. It has been

filed by four plaintiffs, none of whom asserts that the City of Green Bay (the “City”) has

actually invaded their privacy by recording their conversations in City Hall or threatens to

do so anytime soon. At least some of the plaintiffs seem to have been aware of the City’s

recording program for months but puzzlingly waited until now to declare an “emergency”

that requires immediate, emergency relief from the Court. And, counterintuitively, the

plaintiffs rest their claims on the supposed right to privacy in a quintessential public place:

open hallways in Green Bay’s City Hall. After clearing away the exaggerated,

inflammatory rhetoric about “bugging” and “eavesdropping,” all that remains is a policy

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disagreement over an unexceptional surveillance program designed to ensure public safety

in a few sensitive locations in a single government building.

Among the numerous fatal defects to their motion are the fact that the plaintiffs lack

standing, have not shown an imminent and irreparable harm, fail to show a reasonable

chance of success on the merits, and seek to completely upend rather than preserve the

status quo, accordingly, their motion for a temporary restraining order must be denied.

STATEMENT OF FACTS

The City has installed three visible audio recording devices in City Hall in response

to several safety incidents that have occurred over the past year-and-a-half. (Affidavit of

Joseph Faulds (“Faulds Aff”) Tf7).

In June 2021, the City’s then-Human Resources Director received a report from a

staff member in the City Attorney’s office that three members of the public verbally

assaulted her in City Council chambers following the conclusion of a public meeting.

(Faulds Aff. Tf3). The staff member said that she felt threatened to the point that her personal

safety was at risk and asked for something to be done to protect her and other staff. (Faulds

Aff. Tf3) To provide more security, the City’s IT Director asked for the installation of

recording devices on the second floor of City Hall near the Council chambers and Mayor’s

office. (Affidavit of Jason Bamman (“Bammon Aff.” Tf4).

In November 2021, a second significant incident occurred in the same area on the

second floor, as the City was informed that a member of the press working for the Green

Bay Press Gazette was isolated, threatened, and verbally assaulted by members of the

public in the hallway of the second floor of City Hall after a City Council meeting. (Faulds

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Aff. Tf4). She said that these persons stood over her, insulted her, claimed that she should

not be in the City, questioned her education and made other degrading remarks. (Faulds

Aff. Tf4). Following the incident, The Gazette no longer had the reporter cover City Hall.

(Faulds Aff. Tf4). As noted in an email dated December 9, 2021 that was sent to all City

staff (over 800 employees), the second floor audio (and video) recording devices had been

installed (and no one was instructed that their existence should not be disclosed to public).

(Faulds Aff. ]f8; Bamman Aff. Tf5).

In April 2022, another incident occurred in a different location, this time

immediately outside the Clerk’s office on the first floor of City Hall. (Faulds Aff. ]f5).

During the incident, an elderly member of the public attempted to deliver an absentee ballot

to the City Clerk’s office. (Faulds Aff. Tf5). A member of the public entered the office and

verbally assaulted staff about the absentee ballot in the presence of the voter. (Faulds Aff.

Tf5). The assault caused the voter to cry and visibly shake to the point that staff needed to

escort her to her vehicle. (Faulds Aff. Tf5). In response, the City again installed one video

and one audio recording device in visible locations outside the Clerk’s office on the first

floor. (Bamman Aff. Tfl[6-7).

In sum, there are three total audio recording devices. Two on the second floor, one

near the entrance to council chambers and mayor’s office in the main hallway, and one

audio recording device on the first floor, near the entrance to the clerk’s office. All three

audio recording devices have inconsistent capabilities. Because of the hard surfaces in the

hallways, the acoustics are poor. (Bamman Aff. TflO). Therefore, the audio recording has

an inconsistent ability to record voices speaking in a normal tone so that conversations can

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be understood. (Bamman Aff. TflO). Recording of the audio or video only occurs when

there is physical motion—the device quickly activates when motion starts or stops, and so

there is no continuous recording. (Bamman Aff. Tfl 1). No one in the Police Department or

City Hall is assigned the task of monitoring the audio recordings on an ongoing basis, nor

does anyone at City Hall and/or the Police Department regularly monitor the audio

recordings. (Bamman Aff. ][13; Faulds Aff. TflO).

In addition to the visibility of the audio recording devices (Faulds Aff. ]f9), the City

recently posted notices at City Hall alerting visitors that video and audio recordings are

taking place within City Hall. (Faulds Aff. Tf9, Ex. E).

ARGUMENT

I. As a threshold matter, Plaintiffs offer no evidence that the City’s audio devices
have recorded them and they therefore lack standing to bring this case.

Plaintiffs’ first hurdle to obtaining a temporary restraining order is standing. This

case is about purportedly unlawful audio recording devices, but none of the named

plaintiffs can even allege that they have, in fact, been recorded by the City’s audio

recording system. Absent an actual invasion of their privacy, none of the named plaintiffs

have standing to advance their generalized grievances in this Court. i

Plaintiffs in Wisconsin must clear two hurdles to establish standing. The first step

is to determine whether the alleged infraction “directly causes injury to the interest of the

1 Plaintiffs’ class action allegations cannot help them demonstrate standing at this stage of the case because
a class has not yet been certified. See Kohen v. Pac. Inv. Mgmt. Co. LLC, 571 F.3d 672, 676 (7th Cir. 2009)
(“Before a class is certified ... the named plaintiff must have standing, because at that stage no one else has
a legally protected interest in maintaining the suit.”). In other words, the named plaintiffs themselves must
have standing to proceed; they cannot rely on the standing of putative class members.

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[plaintiff].” Fox v. DHSS, 112 Wis. 2d 514, 524, 334 N.W.2d 532 (1983). Moreover,

“[a]bstract injury is not enough”; rather, “[t]he plaintiff must show that he ‘has sustained

or is immediately in danger of sustaining some direct injury’ as the result of the challenged

official conduct and the injury or threat of injury must be both ‘real and immediate,’ not

‘conjectural’ or ‘hypothetical.’” Id. at 525 (quoting City ofLos Angeles v. Lyons, 461 U.S.

95, 102 (1983)). “The second step is to determine whether the interest asserted is

recognized by law.” Id. at 524.

Plaintiffs’ entire lawsuit—and, in turn, their motion for a temporary restraining

order—cannot get past step one, because no Plaintiff has shown an actual injury. First and

foremost, no Plaintiff offers any evidence that they have, in fact, been recorded by the

audio devices at issue. Instead, they simply speculate that they may have been recorded,

and even the basis for that speculation is flimsy at best.

As for Senator Jacque and Jane Doe, neither asserts that they have actually had a

private conversation in City Hall since the challenged audio recording system was installed

in June 2021 and June 2022. Both say that they have visited City Hall “over the past three

years” (that is, since February 2020)—Senator Jacque “on at least one occasion” (Dkt. 9,

Tf3) and Jane Doe “on several occasions” (Dkt. 10, Tf3). Their testimony allows that this

handful of visits could have occurred before any audio recording devices were installed.

Moreover, neither Senator Jacque nor Jane Doe specifies where in City Hall they had

purportedly private conversations, let alone attests that those conversations occurred

outside the Council chambers, Mayor’s office, or Clerk’s office, the only places audio

devices have been installed. And although Mr. Theisen claims more specifically that he

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participated in a purportedly private conversation at City Hall in September 2022 (Dkt. 8,

HI 1-16), he also does not allege where in the building that conversation transpired, nor

does he even state a belief that his conversation was recorded.

None of this constitutes proof of “direct injury.” Fox, 112 Wis. 2d at 525. No

Plaintiff has offered any evidence that they were recorded, much less that that the content

of their conversation is audible on a recording that currently exists. Without such evidence,

their claimed injuries are “conjectural” at best. Id.

And the asserted injury of the remaining Plaintiff—the Wisconsin State Senate (Dkt.

3, H)—is entirely “[ajbstract,” and therefore as a matter of law “not enough” for standing.

Id. “Although the magnitude of the injury is not determinative of standing, the fact of injury

is.” Id. (citing State ex rel. 1st Nat’l Bank v. M&IPeoples Bank, 95 Wis. 2d 303, 308-09,

290 N.W.2d 321 (1980)). The City obviously has not—and cannot—record from City Hall

the State Senate’s conversations, and so it cannot show any concrete harm caused by the

City’s audio recording devices. And as for the allegation that the City has violated a state

statute (Dkt. 3, H)> that alone cannot grant standing to the State Senate as it would allow a

legislative branch to sue municipalities whenever it thinks a statutory violation has

occurred. Plaintiffs provide no authority to support such an absurd result.

To be sure, the individual Plaintiffs all also assert that they are “reluctant” to return

to City Hall for fear that they will be recorded. (Dkt. 8, ^[19; Dkt. 9, Tf8; Dkt. 10, Tfl 1). But

a supposed “chilled speech” injury could conceivably provide standing only for Plaintiffs’

free speech claim; that injury could not also provide standing for their various privacy

claims, which must necessarily rest on alleged privacy violations, not chilled speech. Cf.

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Pagoudis v. Keidl, 2021 WI App 56, Tf 13, 399 Wis. 2d 75, 963 N.W.2d 803 (analyzing the

plaintiffs’ standing as to “each type of claim” they asserted). In any event, Plaintiffs’

purported fear is completely implausible—the City Hall building is six stories, and visible

audio recording devices have only been installed in parts of two floors. (Faulds Aff. Tf3).

There are plainly other places in City Hall that Plaintiffs could go to converse without any

fear of being recorded.

II. Plaintiffs cannot satisfy the stringent requirements for a temporary restraining
order.

Even if Plaintiffs could clear the standing hurdle, they still would not be entitled to

a temporary restraining order. “Injunctions are not to be issued lightly.” Gahl on behalf of

Zingsheim v. Aurora Health Care, Inc., 2022 WI App 29, Tf60, 403 Wis. 2d 539, 977

N.W.2d 756 (quoting Pure Milk Prods. Coop. v. Nat’l Farmers Org., 64 Wis. 2d 241, 251,

219 N.W.2d 564 (1974)). A court may issue a temporary injunction only when the moving

party “is likely to suffer irreparable harm if a temporary injunction is not issued,” “has no

other adequate remedy at law,” “has a reasonable probability of success on the merits,” and

where an injunction is “necessary to preserve the status quo.” Milw. Deputy Sheriffs ’ Ass ’n

v. Milw. Cnty., 2016 WI App 56 ^20, 370 Wis. 2d 644, 883 N.W.2d 154 (citation omitted).

A failure to prove any element requires denying the motion. Id. Here, plaintiffs falter on

every element.

A. Plaintiffs fail to show that they will suffer imminent irreparable harm
absent a temporary restraining order.

For largely the same reasons that Plaintiffs have not shown an injury sufficient to

support standing, they also have not demonstrated that they are likely to suffer irreparable

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harm absent a temporary injunction. Again, none of the Plaintiffs offers any evidence that

their supposedly private conversations actually have been recorded by the City’s audio

devices. So, there is no basis to conclude that, as Plaintiffs assert, there is any imminent,

meaningful risk that their “attorney/client communications,” “sensitive medical matters,”

or “conversations about sensitive political matters” will be recorded and potentially

disclosed to the public. (PI. Br. 28).

Instead, it seems that Plaintiffs are relying primarily on speculative injuries that may

occur to “other members of the public” who might be part of the proposed class. (PI. Br.

29-30). But they have offered no admissible evidence whatsoever about harms that may

be suffered by absent class members.2 And even if they had, courts recognize that they

“cannot rely on evidence showing a likelihood that the putative class members will suffer

interim harm and grant a preliminary injunction on behalf of a class not yet certified,” for

largely the same reasons that absent members of a putative class cannot supply standing.

See, e.g.. Barker v. Int’l Union of Operating Engineers, Loc. 150, AFL-CIO, 641 F. Supp.

2d 698, 704 (N.D. 111. 2009).

Two other facts demonstrate the lack of imminent, irreparable harm here. First,

Plaintiffs may have known about these recording devices for months (e.g., Wisconsin

2 The only backup Plaintiffs provide for their claim that such sensitive information has been recorded is a
news story on a local television station. (Dkt. 16 at 2 nn.1-2). But news stories are hearsay when offered,
as here, for the truth of the matter reported. See Wis. Stat. §§ 908.01(3), 908.02; see also, e.g.. In re oracle
Corp. Sec. Litig., No. C01-00988SI, 2009 WL 1709050, at *15 n.16 (N.D. Cal. June 19, 2009), affdsub
nom. In re Oracle Corp. Sec. Litig., 627 F.3d 376 (9th Cir. 2010) (“repetition of [ ] out of court statements
in the news reports is inadmissible hearsay”). Plaintiffs cannot rely on such a source; as the Wisconsin
Supreme Court has noted, the “absence of [admissible] proof would alone be sufficient to justify the trial
court in refusing to grant the temporary injunction requested.” Mogen David Wine Corp. v. Borenstein, 267
Wis. 503, 508, 66 N.W.2d 157 (1954).

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Legislative Council Memo to Senator Jacque was dated October 25, 2022)3 raising the

question on why plaintiffs’ concerns were not raised with the City and/or this case was not

filed until the midst of Wisconsin’s spring election.4 To the extent the plaintiffs may have

sat on their rights for this long would once again indicate that there is no emergency here

justifying immediate injunctive relief. Second, Plaintiffs seek money damages (see Dkt. 3,

THJ68-73), which indicates that their supposed injuries are not irreparable and that Plaintiffs

have an adequate remedy at law (an independent requirement for a temporary injunction

that Plaintiffs fail to meet). Indeed, the Legislature considered the kinds of injuries alleged

here and expressly provided for damages. (Dkt. 3, Tf72 (citing Wis. Stat. § 968.31 (2m)).

The existence of such remedies—which would address the identical harms on which

Plaintiffs base their injunction request—precludes temporary injunctive relief.

Balanced against the lack of imminent, irreparable harm to Plaintiffs is the risk to

public safety posed by enjoining the City’s audio surveillance program. As City employees

attest, the audio devices were installed in response to multiple verbal assaults on City staff

and at least one Green Bay Press Gazette reporter. (Faulds Aff. ]fl[3-5). This recording

system serves both to deter future such assaults and ensure the City can effectively pursue

3 The Court can take judicial notice of these materials, which are also admissible pursuant to Wis. Stat.
§ 908.03(3) and Wis. Stat. § 909.02(4). See also State v. Fohey, 91 Wis. 2d 848, 284 N.W.2d 120 (Ct.
App. 1979); Lievrouw v. Roth, 157 Wis. 2d 332, 354,459 N.W.2d 850 (Ct. App. 1990).

4 Plaintiffs’ briefing repeatedly cites to concern of public disclosure of the audio recordings and the
reporting of Fox 11 news. (Plaintiffs’ Brief, p. 8). The plaintiffs’ brief notes that Fox 11 obtained the 90-
minute City Hall recording from “an anonymous source that had requested the recording in a public
records request.” Id. The only time the City has produced the 90-minute audio and video recording
(and/or any City Hall recording) was on December 16, 2022 in response to a request from Janet Angus.
(Cochart Aff. |6). The Defendants object to Jane Doe’s Motion to Proceed Using a Pseudoynm, and her
identify has not been disclosed to defense counsel despite a request and the motion papers indicating a
willingness to do so. (Dkt. #5, p. 1).

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anyone who may nevertheless someday choose to assault City staff. And that risk is

heightened given the imminent election, given that recent elections have proven especially

tense around City Hall. It is therefore an especially inopportune time to remove an

important tool the City implements to protect its staff and others in City Hall.

B. Plaintiffs have little chance of succeeding on the merits because they

have no reasonable expectation of privacy in the open hallways of City
Hall.

Leaving aside the lack of standing and irreparable harm, a temporary injunction

should be denied because Plaintiffs have little chance of succeeding on the merits. As an

initial matter, there is a procedural and factual question whether any of the plaintiffs have

complied with Wisconsin notice of claim procedures. Wis. Stat. § 893.80(ld)(a). The

parties dispute whether the plaintiffs have actually been harmed; however, to the extent

plaintiffs allege they have been harmed, they would have 120 days to service a notice of

circumstances of their claim with the City. The Complaint does not allege compliance with

Wis. Stat. § 893.80, nor do the plaintiffs’ identify when or how they learned of the audio

recording devices. By way of reference, the City notified over 800 employees of the audio

recording in December 2021. (Faulds Aff. ]f8). The City also responded to Attorney

Schuchart’s open records request on September 12,2022 regarding audio recording devices

meaning 120 days later was January 10,2022. (Affidavit of Lacey Cochart, 3-5). The

Wisconsin Legislative Council Memo released by Senator Jacque is dated October 25,

2022 (only to be revised and then released February 7, 2023).5

5 See supra note 3 regarding judicial notice, and the hearsay exception for governmental records. Wis.
Stat. § 908.03(3) and Wis. Stat. § 909.02(4).

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The plaintiffs have the burden of proof in serving timely notice, or actual notice of

the claim within 120 days and the lack of prejudice for failure to comply with Wis. Stat.

§ 893.80. See e.g., Moran v. Milwaukee Cnty., 2005 WI App 30, Tf3, 278 Wis. 2d 747, 693

N.W.2d 121 (affirming dismissal of complaint for plaintiffs failure to meet burden of

showing compliance with § 893.80 despite plaintiff filing out incident report submitted to

County in timely manner). Although actual notice may be a substitute for written notice if

there is no prejudice to the defendant, the actual notice must be received within the same

120 days as the written notice. Medley v. City ofMilwaukee, 969 F.2d 312, 320, 1992 WL

165401 (7th Cir. 1992). Constructive notice is not a substitute for actual notice. Elkhorn

Area School Dist. v. East Troy Community School Dist., 110 Wis.2d 1, 6, 327 N.W.2d 206

(Wis.Ct.App.1982). In other words, a governmental entity’s awareness of a party’s

apparent concerns is not the equivalent of the governmental entity’s awareness that a party

intends to pursue a legal claim. G&D Properties, LLC v. Milwaukee Metro. Sewerage

Dist., No. 2015AP1906, f 19, unpublished slip op. (Wis. Ct. App. Nov. 1, 2016).6

Setting aside the questions whether plaintiffs can satisfy their burden on Wis. Stat.

§ 893.80, their privacy claims all rest on the faulty premise that they have an objectively

reasonable expectation of privacy in conversations they choose to have in a quintessential

public location—the open hallways of Green Bay’s seat of local government, City Hall.

Whatever these particular Plaintiffs may have thought about the privacy of these public

conversations, it is simply not reasonable to expect conversations in open hallways in City

6 This case is cited pursuant to Wis. Stat. § 809.23 for its persuasive value and a copy of the opinion is
attached.

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Hall to remain private. Because Plaintiffs have no reasonable expectation of privacy—and

they have cited no on-point cases from anywhere in the country finding such an expectation

to be reasonable—Plaintiffs have virtually no chance of succeeding on the merits and thus

are not entitled to preliminary relief.

As explained below, the respective legal standards for Plaintiffs’ privacy claims all

rest on them having a reasonable expectation of privacy in their City Hall conversations.

First, Plaintiffs assert a claim under Wisconsin’s Electronic Surveillance Control

Law (“WESCL”), which can be triggered by the interception of “oral communication[s].”

Wis. Stat. § 968.3 l(l)(a). An “oral communication” is defined as “any oral communication

uttered by a person exhibiting an expectation that the communication is not subject to

interception under circumstances justifying the expectation.” The statute is therefore

“restricted to [oral statements] made in certain circumstances”—namely, those in which

the speaker has a “reasonable expectation of privacy.” State v. Duchow, 2008 WI 57, ^[19,

310 Wis. 2d 1, 749 N.W.2d 913. Such an expectation is reasonable when an individual has

“both (1) an actual subjective expectation of privacy in the speech, and (2) a subjective

expectation that is one that society is willing to recognize as reasonable.” Id., Tf20.

Second, Plaintiffs argue that the recordings violate Article I, Section 11 of the

Wisconsin Constitution, which guards against “unreasonable searches and seizures.” Just

like the WESCL, a “search” occurs that triggers Article I, Section 11 (Wisconsin’s

analogue to the federal constitution’s Fourth Amendment) only when the action invades an

individual’s “reasonable expectation of privacy.” State v. Bruski, 2007 WI 25, Tf22, 299

Wis. 2d 177, 727 N.W.2d 503.

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Third, Plaintiffs assert an intrusion upon their privacy under Wisconsin’s right-to-

privacy statute, Wis. Stat. § 995.50(2)(am)(l). Such claims can succeed only if the invasion

occurred “in a place that a reasonable person would consider private” and in a way that

was “highly offensive to a reasonable person.” Id. This entails the same “reasonable

expectation of privacy” analysis as required for Plaintiffs’ WESCL and constitutional

claims. See Bogie v. Rosenberg, 705 F.3d 603, 610 (7th Cir. 2013) (applying Wis. Stat.

§ 995.20(2)). Notably, the Wisconsin Court of Appeal has reversed and remanded a jury

verdict in favor of plaintiffs to enter judgment in favor of defendants because, as a matter

of law, defendant neighbors’ recording of sounds that emanated from neighboring property

taken from defendants’ window, did not constitute an invasion of privacy pursuant to Wis.

Stat. § 995.50. Poston v. Burns, 2010 WI App 73, 325 Wis. 2d 404, 784 N.W.2d 717.

Plaintiffs’ privacy claims therefore all turn on one core question: do Plaintiffs have

a reasonable expectation of privacy in conversations they have in open hallways in City

Hall? The answer is plainly no.

Plaintiffs discuss various factors drawn from State v. Duchow that can be considered

when answering this question (PI. Br. 13-14), but they conspicuously ignore Duchow's

facts which, in important ways, are strikingly similar to those here. There, a child used a

tape recorder in his backpack to secretly record verbal statements made to him by the driver

of his public school bus. 2008 WI 57, Tfl[6-8. The bus driver moved to suppress the

statements under the WESCL, arguing—much like Plaintiffs here—that it was

“uncommon” for these kinds of conversations to be recorded, that he and the student were

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the only people present for the conversation, and that he made his statements at a relatively

low volume. Compare id. Tfl[23-28, with PI. Br. 12-15.

But our supreme court rejected the bus driver’s position, in large part due to the

“place where [he] spoke”: a public school bus. Duchow, 2008 WI 57, Tf25. The Court

explained that a person’s “expectation of privacy is diminished in places that the individual

shares with others, as compared with places retained for his or her exclusive use,”

especially on “public property, being operated for a public purpose.” Id., 1fi|25, 37. This

principle applies with equal force to open hallways in City Hall as it does to public school

buses. And even though no one else was aboard the bus with the student and his driver-

just as Plaintiffs assert no one else was present in the hallways during their conversations—

“[t]here is nothing private about communications [that] take place in [ ] a [public] setting.”

Id., Tf38. Courts across the country routinely reach similar conclusions that people have no

reasonable expectation of privacy in conversations they hold in public areas where they

could easily be overheard.7

It is critical to keep in mind the location of the audio recording devices here—in

open hallways and spaces outside the Mayor’s and Clerk’s offices. These are not hidden

devices in closed rooms where one might perhaps reasonably expect some privacy; rather,

7 See, e.g.. State v. Garcia, 252 So. 3d 783, 785 (Fla. Dist. Ct. App. 2018) (an “expectation [of privacy] is
not reasonable where “[t]he intercepted communication was made in an open, public area rather than in an
enclosed, private, or secluded area”) (citation omitted); State v. Peltz, 391 P.3d 1215, 1222-23 (Ariz. Ct.
App. 2017) (“Participants of a conversation that can be readily overheard by someone standing in a public
place have a lesser expectation of privacy.”); United States v. Wells, 739F.3d511,518 (10th Cir. 2014)
(“[N]either video nor audio surveillance automatically violates the Fourth Amendment; when such
surveillance is conducted in a public place such as a bank, where no reasonable expectation of privacy
exists, the surveillance is not subject to suppression.”).

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they are openly displayed devices in common areas outside some of the busiest parts of

City Hall. (Bamman Aff. Tf8). Moreover, the technology used is not tailored to constantly

monitor quiet conversations; rather, it is activated by motion in the vicinity. (Bamman Aff.

Tflf 10-11). Notably, Plaintiffs do not even assert that their private conversations have been

recorded by the City’s surveillance system—just that they may have been.

Plaintiffs’ main argument rips from context the observation in Carpenter v. United

States, 138 S. Ct. 2206, 2217 (2018), that “[a] person does not surrender all Fourth

Amendment protection by venturing into the public sphere.” (PI. Br. 14) That is true, but

Carpenter involved the “novel circumstances” of police obtaining an “all-encompassing

record of [a cellphone] holder’s whereabouts,” an investigative tactic that “provides an

intimate window into a person’s life, revealing not only his particular movements, but

through them his ‘familial, political, professional, religious, and sexual associations.’” Id.

Sporadic audio recordings of conversations by visible equipment in public hallways of City

Hall and triggered by motion differ in kind from the pervasive and covert “perfect

surveillance” at issue in Carpenter. Id. at 2218. And Plaintiffs’ analogy to the “FBI

interview room” at issue in United States v. Llufrio, 237 F. Supp. 3d 735, 742, 745—46

(N.D. 111. 2017) (cited at PI. Br. 14), falls flat, as “a locked room with no law enforcement

officers and with no visible working audio-recording device,” id. at 745, obviously differs

from an open hallway in City Hall with multiple visible audio and video recording devices.

Beyond that, any marginal expectation of privacy Plaintiffs might have is eliminated

by the signage the City has posted that alerts the public to the audio recording devices.

(Faulds Aff. Tf9, Ex. E). Courts frequently conclude that a notice of surveillance in public

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places or private businesses diminishes any reasonable expectation of privacy in those

places. 8

Plaintiffs contend that the posted notices do not mean City Hall visitors have

“consented” to the recording of their conversations (PI. Br. 15-16), but consent is not the

relevant issue here. Rather, the question is whether City Hall visitors—who are present in

a public building and have been informed that they are subject to video and audio

recording—nevertheless retain a reasonable expectation of privacy in their conversations

in open hallways. Government buildings are perhaps the most-surveilled places in our

country, given the “particularly acute” need to preserve public safety at these civic

locations. See City of Indianapolis v. Edmond, 531 U.S. 32, 33 (2000). Society has

therefore come to expect as “routine” searches “at entrances to courts and other official

buildings,” Chandler v. Miller, 520 U.S. 305, 323 (1997), and also a “significant level of

video surveillance” in “government buildings.” United States v. Mazzara, No. 16-cr-576,

2017 WL 4862793, at *11 (S.D.N.Y. Oct. 27, 2017). Particularly when combined with

notice of the audio recordings, Plaintiffs here cannot reasonably expect privacy in open

hallways in City Hall.

Separate from their privacy claims, Plaintiffs also assert an odd ffee-speech claim

that is even less likely to succeed. They argue that the audio recordings improperly

8 See, e.g., Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 180 (1st Cir. 1997) (employees had no
reasonable expectation of privacy where they were “notified ... in advance that video cameras would be
installed”); Hill v. Nat’l Collegiate Athletic Ass ’n, 865 P.2d 633, 655 (Cal. 1994) (“[A]dvance notice of an
impending action may serve to ‘limit [an] intrusion upon personal dignity and security’ that would
otherwise be regarded as serious.”) (citation omitted); People v. Rincon, 581 N.Y.S.2d 293, 294—95 (N.Y.
App. Div. 1992) (“[W]hen a person with notice of [a] impending search seeks entry into such a restricted
area [e.g. government buildings], he or she relinquishes any reasonable expectation of privacy ... .”).

16
 Case 2023CV000250 Document 33 Filed 03-01-2023 Page 17 of 23

“regulate[ ] speech by subjecting anyone who speaks in the hallways [ ] to audio recording.”

(PI. Br. 22). But Plaintiffs cite zero authority for the novel proposition that audio recordings

in a public place somehow “regulate speech” in a way that triggers constitutional free

speech protection. Simply put, visitors to City Hall remain free to assemble there and say

whatever they want. To the extent Plaintiffs seek preliminary relief on this basis, it should

be denied for the sole reason that they fail to offer any explanation for how a speech

regulation has occurred here, let alone provide legal authority to support such an unusual

argument.

C. Plaintiffs seek to undo the status quo.

Finally, Plaintiffs’ request seeks not to preserve the status quo but to reverse it. That

alone requires denying their motion. “[T]he purpose of a temporary injunction or

restraining order is to maintain the status quo and not to change the position of the parties

or compel the doing of acts which constitute all or part of the ultimate relief sought.” Gahl,

2022 WI App 29, ^[60; Sch. Dist. ofSlinger v. Wis. Interscholastic Athletic Ass’n, 210 Wis.

2d 365,373, 563 N.W.2d 585 (Ct. App. 1997) (quoting Codept, Inc. v. More-WayN. Corp.,

23 Wis. 2d 165,173,127 N.W.2d 29 (1964)). What Plaintiffs seek here is nothing less than

most of the ultimate relief they request—shutting down the City’s audio recording devices

and destroying all existing recordings they have generated. Granting such a “temporary”

injunction would completely upend the status quo, not preserve it.

CONCLUSION

The Court should deny Plaintiffs’ motion for a temporary restraining order.

17
 Case 2023CV000250 Document 33 Filed 03-01-2023 Page 18 of 23

Dated: March 1, 2023.

STAFFORD ROSENBAUM LLP

Electronically signed by Kyle W. Enselke

Ted Waskowski, SBN 1003254
Kyle W. Engelke, SBN 1088993
Attorneys for Defendants,
City of Green Bay and Mayor Eric Genrich

222 West Washington Avenue, Suite 900

Post Office Box 1784
Madison, Wisconsin 53701-1784
Email: twaskowski@staffordlaw.com
kengelke@staffordlaw.com
608.256.0226

18
 Case 2023CV000250 Document 33 Filed 03-01-2023 Page 19 of 23

G&D Properties, LLC v. Milwaukee Metropolitan Sewerage Dist., 372 Wis.2d 833 (2016)
890 N.W.2d 48, 2017 Wl App 1

372 Wis.2d 833

Unpublished Disposition
See Rules of Appellate Procedure, Rule 809.23(3),
regarding citation of unpublished opinions.
Unpublished opinions issued before July 1, 2009, BACKGROUND
are of no precedential value and may not be cited
except in limited instances. Unpublished opinions If 2 The material facts underlying this appeal are not in
issued on or after July 1, 2009 may be cited for dispute. On July 22, 2010, the City of Milwaukee
persuasive value. experienced substantial rainfall. The property located at
NOTE: THIS OPINION WILL NOT APPEAR IN A 4044 North 31st Street, owned by G & D, experienced
PRINTED VOLUME. THE DISPOSITION WILL excessive flooding. On September 30, 2010, Kenneth
APPEAR IN A REPORTER. Dragotta, one of the members of G & D, met with MMSD
Court of Appeals of Wisconsin. representatives to discuss the flooding and the damages to
each business operating at the property. It is undisputed
G&D PROPERTIES, LLC, Kardon, Inc., Systems that between September 30, 2010, and the end of October
Engineering Company, Inc., Cecil Edirisinghe, 2010, Dragotta, MMSD representatives, and City
Velicon, Ltd., Kenneth Dragotta, David Garms and representatives met multiple times to discuss the cause of
Systems Engineering & Automation Corp., the flooding, the resulting damage, and strategies for
Plaintiffs-Appellants, mitigating future flood damage. Also in October 2010, an
v. MMSD representative informed Dragotta that MMSD
MILWAUKEE METROPOLITAN SEWERAGE planned to conduct a flow study to determine whether
DISTRICT and City of Milwaukee, system design and operation contributed to the flooding in
Defendants-Respondents. the vicinity of the property at issue. Within 120 days of
the flooding, eighty-two claimants affected by the
No. 2015AP1906.
flooding filed Notices of Claim with MMSD, in
1 accordance with WIS. STAT. § 893.80(ld) (2013-14),*
Nov. 1, 2016.
for flood-related damages. G&D was not among those
claimants.
Appeal from a judgment of the circuit court for
Milwaukee County: JEFFREY A. CONEN, Judge. If 3 MMSD completed and released the flow study on or
Affirmed. about December 2, 2011. G & D determined, based on the
report, that MMSD was responsible for the flooding. On
Before CURLEY, P.J., KESSLER and BRASH, JJ. March 30, 2012, 119 days after MMSD issued its report,
G&D filed a “Demand for Indemnity Pursuant to
Opinion Recorded Easement, and Notice of Claim.” (Some
capitalization omitted.) The notice, as relevant to this
appeal, stated:
If 1 KESSLER, J.
This claim relates to damages caused to the Claimants
by you in the area of North 31 st Street and Capitol
*1 G & D Properties, LLC, Systems Engineering Drive. The circumstances of the claim are generally
Company, Inc., Cecil Edirisinghe, Velicon, Ltd., Kenneth described in the attached HNTB Technical
Dragotta, David Garms, and Systems Engineering & Memorandum, dated as of December 1, 2011.
Automation Corp. (collectively, “G & D”) appeal a
judgment of the circuit court granting summary judgment
to the Milwaukee Metropolitan Sewerage District
(MMSD) and the City of Milwaukee (the City). G&D The Milwaukee Metropolitan Sewerage District, and
contends that it filed proper notice of flood damage with the City of Milwaukee, owe Claimants $2,333,438.84.
MMSD and the City, that the governmental entities had
actual knowledge of the circumstances giving rise to G &
D’s claim, and that the entities were not prejudiced by any
lack of notice. We affirm the circuit court. Claimants reserve the right to supplement and amend

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 Case 2023CV000250 Document 33 Filed 03-01-2023 Page 20 of 23

G&D Properties, LLC v. Milwaukee Metropolitan Sewerage Dist., 372 Wis.2d 833 (2016)
890 N.W.2d 48, 2017 Wl App 1

this Notice of Circumstances of Claim and itemization that G & D’s failure to comply with the statutory
of Relief Sought. Furthermore, as the Milwaukee requirements was prejudicial to MMSD’s abilities to
Metropolitan Sewerage District and the City of evaluate G & D’s claims.
Milwaukee had actual notice of the circumstances
surrounding this claim, this Notice of Circumstances of If 6 The circuit court found that G & D’s notice did not
Claim and Claim is unnecessary.... comport with the requirements of WIS. STAT. §
893.80(ld) but did not dismiss G & D’s claim. Rather, the
MMSD denied the claim, prompting G & D to file the court allowed the parties to conduct discovery on the
lawsuit underlying this appeal. issues of whether MMSD and the City had actual notice
of G & D’s claim and whether MMSD was prejudiced by
*2 Tf 4 MMSD and the City then filed motions for G & D’s failure to comply with the statute.
summary judgment, arguing that G&D failed to follow
the notice requirements described in WIS. STAT. § If 7 Following discovery, the parties filed competing
893.80(ld), which provides: summary judgment motions on the issues of whether
MMSD and the City had actual notice of G & D’s claim
(Id) Except as provided in subs, (lg), (lm), (lp) and and whether the governmental entities were prejudiced by
(8), no action may be brought or maintained against G & D’s delay in seeking relief.
any ... political corporation, governmental subdivision
or agency thereof ... for acts done in their official If 8 Ultimately, the circuit court granted MMSD’s motion
capacity or in the course of their agency ... upon a and denied G & D’s motion. The court found that G&D
claim or cause of action unless: did not meet its burden of proving that MMSD and the
City had actual notice of its claim. The court found that
(a) Within 120 days after the happening of the event even though G&D contacted MMSD following the
giving rise to the claim, written notice of the flooding to inquire about responsibility and to discuss the
circumstances of the claim signed by the party, agent or prevention of future flooding, the inquiry did “not rise to
attorney is served on the ... political corporation, the level necessary to create actual knowledge that G&D
governmental subdivision or agency and on the officer, intended to pursue a legal claim against the defendants.”
official, agent or employee under s. 801.11. Failure to The court stated that the statutory language required G &
give the requisite notice shall not bar action on the D to provide “notice of the legal variety, and notice of
claim if the ... corporation, subdivision or agency had damage or injury.” The court also found that G & D’s
actual notice of the claim and the claimant shows to the lack of formal notice was prejudicial to MMSD because
satisfaction of the court that the delay or failure to give MMSD lost the ability to properly budget for G & D’s
the requisite notice has not been prejudicial to the claims.
defendant ... corporation, subdivision or agency or to
the defendant officer, official, agent or employee; and *3 If 9 This appeal follows. Additional facts are included
as necessary to the discussion.
(b) A claim containing the address of the claimant and
an itemized statement of the relief sought is presented
to the appropriate clerk or person who performs the
duties of a clerk or secretary for the defendant ...
corporation, subdivision or agency and the claim is
disallowed.
DISCUSSION
If 5 MMSD and the City argued that G & D’s claim
contained “no date of injury; no date of loss; no date of If 10 On appeal, G&D contends that its claim against
harm; [and] no description of the events giving rise to the MMSD and the City accrued on December 1, 2011, the
claim.” They argued that G&D failed to provide any date of the flow study report, making its notice of claim
details which could have allowed them to ascertain the timely. G&D also contends that MMSD and the City had
nature and date of G & D’s losses and that G & D’s actual notice of its claim and that neither has shown
reference to MMSD’s flow study did not provide MMSD prejudice by any delay or failure of G & D to provide
or the City with actual notice of G & D’s injuries because earlier written notice of its claim.
the report “does not refer to ... any of the ... named
plaintiffs; does not provide the relevant address [es], does
not describe any loss suffered, and does not supply any
specific date of loss.” MMSD and the City also argued

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 Case 2023CV000250 Document 33 Filed 03-01-2023 Page 21 of 23

G&D Properties, LLC v. Milwaukee Metropolitan Sewerage Dist., 372 Wis.2d 833 (2016)
890 N.W.2d 48, 2017 WI App 1

Standard of Review. against a governmental entity unless a signed ‘written

If 11 This court reviews summary judgment decisions de notice of the circumstances of the claim’ is served on the
novo, applying the same methodology and legal standard governmental entity within 120 days of the initial event.”
the circuit court employs. See Green Spring Farms v. Id. (citation omitted). “Even if a claimant fails to comply
Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987). with the 120-day deadline, however, the claimant may
Summary judgment is appropriate if “the pleadings, still comply with [the statute] by showing that the
depositions, answers to interrogatories, and admissions on governmental entity had actual notice of the claim and
file, together with the affidavits, if any, show that there is was not prejudiced by the claimant’s failure to give the
no genuine issue as to any material fact and that the requisite notice.” Id.
moving party is entitled to a judgment as a matter of law.”
WIS. STAT. § 802.08(2). If 15 It is undisputed that G&D discovered the loss on
July 22, 2010—the date of the flood—and did not file a
If 12 This case also involves the interpretation of the notice of injury within 120 days of the flooding; however,
notice of claim statute, found in WIS. STAT. § G&D asserts that even if it did not provide the requisite
893.80(ld). The interpretation of a statute is a question of notice, its action is not barred because MMSD and the
law that we review de novo. See Hocking v. City of City had actual notice such that neither was prejudiced by
Dodgeville, 2010 WI 59, If 17, 326 Wis.2d 155, 785 the lack of formal notice. We disagree.
N.W.2d 398.
Tf 16 Whether a governmental entity had actual notice of a
plaintiffs claim presents a mixed question of fact and
law. Olsen v. Township of Spooner, 133 Wis.2d 371, 377,
395 N.W.2d 808 (Ct.App. 1986). What the governmental
entity knew about the plaintiffs claim is a factual finding
G&D failed to comply with WIS. STAT. § 893.80. and may not be overturned unless clearly erroneous. Id.
If 13 Under WIS. STAT. § 893.80(ld), no action maybe Whether the governmental entity’s knowledge constituted
brought against a governmental subdivision unless actual notice under the law is a legal conclusion we
paragraphs (a) and (b) are satisfied: review de novo. See id. The plaintiff bears the burden of
proving actual notice. Weiss v. City of Milwaukee, 79
(a) Within 120 days after the happening of the event Wis.2d 213, 227, 255 N.W.2d 496 (1977). It is the
giving rise to the claim, written notice of the plaintiffs burden to prove actual notice or that the
circumstances of the claim signed by the party, agent or governmental entity was not prejudiced by the failure to
attorney is served on the ... political corporation, comply with the formal notice requirements of WIS.
governmental subdivision or agency and on the officer, STAT. § 893.80(ld). E-Z Roll Off, LLC v. County of
official, agent or employee under s. 801.11. Failure to Oneida, 2011 WI 71, 17-18, 335 Wis.2d 720, 800
give the requisite notice shall not bar action on the N.W.2d 421. Whether he or she has done so is a question
claim if the ... corporation, subdivision or agency had of law. Olsen, 133 Wis.2d at 379, 395 N.W.2d 808.
actual notice of the claim and the claimant shows to the
satisfaction of the court that the delay or failure to give If 17 WISCONSIN STAT. § 893.80(ld) is designed to
the requisite notice has not been prejudicial to the ensure that the governmental entity will have enough
defendant ... corporation, subdivision or agency or to information about the plaintiffs injury, either formally by
the defendant officer, official, agent or employee; and a notice within 120 days or by actual notice sufficient to
avoid prejudice from the lack of formal notice, so as to be
(b) A claim containing the address of the claimant and
able to fully investigate “the circumstances giving rise to
an itemized statement of the relief sought is presented
a claim.” Elkhorn Area Sch. Dist. v. East Troy Cmty. Sch.
to the appropriate clerk or person who performs the
Dist., 110 Wis.2d 1, 5, 327 N.W.2d 206 (Ct.App.1982).
duties of a clerk or secretary for the defendant ...
“An irreducible minimum of this enough-information
corporation, subdivision or agency and the claim is
requirement is that the governmental entity know the
disallowed.
‘type of damage alleged to have been suffered by a
potential claimant.’ ” Moran v. Milwaukee Cty., 2005 WI
*4 If 14 In short, WIS. STAT. § 893.80(ld)(a) is the
App 30, If 7, 278 Wis.2d 747, 693 N.W.2d 121 (citation
notice of injury provision. See Thorp v. Town of Lebanon,
omitted).
2000 WI 60, If 23, 235 Wis.2d 610, 612 N.W.2d 59. “The
notice of injury provision allows governmental entities to
If 18 The heart of G & D’s argument is that because the
‘investigate and evaluate’ potential claims.” Id. (citations
flood was obvious, G&D communicated its concerns to
omitted). “It states that an action cannot be brought

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G&D Properties, LLC v. Milwaukee Metropolitan Sewerage Dist., 372 Wis.2d 833 (2016)
890 N.W.2d 48, 2017 Wl App 1

MMSD shortly after the flooding, and G&D had burden of showing that MMSD was not prejudiced by the
multiple subsequent meetings with MMSD and City delay in filing its notice. “Prejudice” is the inability to
representatives to discuss the flooding, MMSD and the adequately defend a claim. Olsen, 133 Wis.2d at 379-80,
City had actual knowledge of G & D’s losses. John 395 N.W.2d 808. One purpose of WIS. STAT. § 893.80 is
Jankowski, an employee of MMSD, and multiple City to ensure that the governmental unit has sufficient
employees all stated in deposition testimony that they met opportunity to escape prejudice by promptly investigating
with Dragotta multiple times, but that their meetings claims. Olsen, 133 Wis.2d at 380, 395 N.W.2d 808.
consisted of discussions primarily about the cause of the Another is to afford the governmental body the
flooding and ways to prevent future flooding. The opportunity to compromise and to budget for potential
testimony indicates that while both entities were aware settlement or litigation. E-Z Roll Off, LLC, 335 Wis.2d
that G&D suffered flood damage, they were not aware 720, If 46, 800 N.W.2d 421. Whether a governmental
that G&D intended to file a claim alleging that MMSD entity suffered prejudice is also a mixed question of fact
and the City were the parties responsible for the damage. and law. Olsen, 133 Wis.2d at 378, 395 N.W.2d 808. We
Accordingly, MMSD and the City had no way of knowing uphold the circuit court’s factual findings unless clearly
whether they faced a claim based in tort, contract, erroneous. See id. at 378-79, 395 N.W.2d 808. How these
negligence, or a statutory violation. Indeed the circuit facts fit the statutory concept of prejudice is a question of
court noted that: law we review de novo. See id. at 379, 395 N.W.2d 808.
The plaintiff bears the burden of proving lack of
prejudice. Weiss, 79 Wis.2d at 227, 255 N.W.2d 496.
*5 [e]ven Mr. Dragotta did not Tf 21 The circuit court recognized that MMSD budgets for
expressly discuss liability or a its annual operations and management costs, including
lawsuit. For example, while waiting expenses related to personal injuries or property damage,
for the results of the flow study, ... on a yearly basis. Budget surpluses are returned within
Dragotta ... told Mr. Jankowski that two years of collection so as to minimize user costs. Thus,
the floods were nearly fatal to his any budget surplus from 2010—the year G&D sustained
business and that it’s imperative flood damage—was returned in 2012—the year G&D
that we know how the filed its notice. Accordingly, MMSD did not have the
storm/sanitary sewer infrastructure opportunity to budget for G & D’s multi-million dollar
is operating with the multiple cross claim. It is undisputed that eighty-two other claimants
connections in our area during filed notices with MMSD in the 120 days following the
heavy periods of rain. But this does flood. MMSD evaluated and denied all of those claims.
not indicate that a lawsuit was Had G&D acted more promptly, MMSD may have been
forthcoming or that G&D believed able to work out a settlement or properly budget for a
the defendants were liable; rather, it damage claim. G&D has not proved that its failure to
appeared that Mr. Dragotta was timely provide formal notice was not prejudicial to
concerned with correcting the MMSD.
problem before the flooding
happened again. *6 Tf 22 For the foregoing reasons, we affirm the circuit
court.

If 19 We have previously held that a governmental entity’s Judgment affirmed.

awareness of a party’s concerns is not the equivalent of
the governmental entity’s awareness that a party intends Not recommended for publication in the official reports.
to pursue a claim. See Urban Planning and Dev., LLC v.
Village of Grafton, No.2012AP20, unpublished slip op. If
All Citations
9 (WI App Mar. 13, 2013). Accordingly, we conclude that
G & D did not meet its burden of proving that MMSD and 372 Wis.2d 833, 890 N.W.2d 48 (Table), 2016 WL
the City had actual notice of its losses. 6461300, 2017 WI App 1
If 20 We also conclude that G&D failed to meet its
Footnotes

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 Case 2023CV000250 Document 33 Filed 03-01-2023 Page 23 of 23

G&D Properties, LLC v. Milwaukee Metropolitan Sewerage Dist., 372 Wis.2d 833 (2016)
890 N.W.2d 48, 2017 Wl App 1

i All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise noted.

End of Document ©2023 Thomson Reuters. No claim to original U.S. Government Works.

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