She Spoke Out in Defense of Her Neighbor…and Was Fined $20,000 for It.

And now it’s time for another Rule of Law story, which is a part of our Rule of Law series where we showcase what happens in the absence and the presence of the Rule of Law in our lives. Here’s our own Monty Montgomery with today’s story. Forty-eight minutes out of Milwaukee down Interstate 43, off Exit 43, is the town of Eagle, Wisconsin, population 2063. It’s a sleepy, rural bedroom community surrounded by farms and fields, the kind of place you’d expect to see farm stands selling fresh produce. Farm stands like Erica Burr and her husband, Zacks. We called it Mom Mallory’s Farm Fresh Stand. So we have this figure in our minds of Mom Mallory, who’s a pioneer woman who, you know, settled the land with her family, and she takes care of her community and grows good, nutritious food. The whole philosophy behind having this stand, essentially, was it’s like you’re coming to your grandmother’s cupboard, you know. The farm stand was a great way to connect and reach our community. I came to enjoy the people who would stop at our stand. You get to know these people and the camaraderie that comes from that and see their babies grow as they’re in the car seat as they’re driving by to pick up food. And to not have it this year, it’s sad, but what happened between this year and last that made her farm stand go away? Being a part of a small community, you know, you want to support each other. So when you hear about somebody in your community wanting to launch a business, it’s really something where we all do surround each other and lift each other up and try and rally. It’s a lifeblood for us out here. We had a neighbor who was starting a horse boarding facility, so they had a very large barn. They wanted to capitalize on that space and do not just horse boarding, but also host classes and train the community or people coming into the community how to work with horses and get the youth involved with an agricultural experience. And the Town Board was really going hard against this particular family, you know, criticizing them for their manure management plan, which was actually a composted pile of dirt that they then would use in their own gardens. They were upset if there would be too many horse trailers coming through or too many people coming in to attend some of these classes, and these classes were maybe structured for six children. So we spoke out our fewings of what we thought and how this would be a benefit. And then we started getting more engaged in watching how they posted meeting minutes or their governmental process compared to what the state standards were or what was listed in the ordinances for the town itself, and we noticed discrepancies. They weren’t even following their own standards that they had set, so we would publicly call them out about that. We felt like we had to take a stand, but for us, taking that stand meant that then the focus turned on us, and soon enough, Town officials started showing up on her property. Here’s Erica’s lawyer, Kirby West of the Institute for Justice, with what happened next. So after she had posted on social media and spoken up on Town Board meetings, they were informed that the town had received an anonymous complaint that they were in violation of a variety of ordinances in Eagle. Soon after, the Board sent somebody to investigate their property, and they got a laundry list of violations. They said that their grass was too long, they had too many structures on their property, they had too many farm animals, illegally running family businesses from our property, having too many cars come to our property. There was a complaint of our building being too close to the property line. They had flower boxes that were unpermitted. They had an unlicensed farm stand where they were selling produce, and just slip everything you can imagine. Our farm stand wasn’t even at the roadside. It was closer to our home where we had a parking spot available, so we weren’t putting people in a safety issue of trying to get out of their vehicle on a road to obtain food. And it wasn’t even a full structure. It was two plyboards attached to posts in concrete, and the town viewed that as a structure, and that meant we had too many structures on our property. So we would have to apply for a variance fee and hope that the Board would approve the variance for us to have a temporary farm stand for the vegetable season in front of our house. And if we didn’t remove that or continued with them, they would keep sending the planning and zoning administrator out to our property or the building inspector and then reassess those fees back to us, and any day that we were in violation, they would continue to stack up fees on us. So it came to a point where, with the supposed violations that the town was claiming against us, they were going to take us to court for $20,000 unless we came into compliance, met all their needs, signed a form agreeing to pay fees which they did not disclose to us, or else be taken to court for $20,000. And so where they could, they came into compliance. They got rid of their farm stand. They had a greenhouse that the town had said there were too many structures on their properties, so they got rid of the greenhouse. They mowed the lawn where it was overgrown, but it wasn’t enough for the Town Board. They kept coming back and saying, “No, there are more violations. You need to actually tear down their barn,” which they said was unpermitted. They didn’t give evidence that there weren’t permits for the barn. The barn was built before Erica and Zach were there, but they told Erica and Zach that they had to provide the building permits and be able to prove that the barn was in fact permitted. And the fees… it’s profit motivation. The town attorney, the building inspector, and the planning and zoning administrator all charged the town an hourly rate, so they are set up with the best racket of finding the problems, making the problems, and then making the person that they are going after pay not only for the problem to resolve the problem, but pay for the cost of them investigating the problem and all the billing.

Let’s take a step back for a second. Though Erica mentioned earlier that the town came after her, approved of these finds and fees, and kept coming back for more because she had taken them to task in defense of her neighbor. That seems like a First Amendment violation, a pretty hefty claim, but is there any truth to it? In cases like this, it’s often difficult to prove that that’s the case. It’s easy to say, “Well, you know, nothing happened until I said something about the government, and then this happened to me, so it seems like,” but it can be hard to really prove that that’s what happened. But here, there’s actually kind of a smoking gun. So, one of the Board members actually sent Erica an email. Through the conversation of the email, had implored this individual, you know, even though you’re only one voice, your one voice stands through this record that is being created. I feel maybe went defensive with that, and her reply back was, “Well, you have passed everybody off on the Board, and they are against you. They don’t like you, and they voted against you with emotion.” So I actually have an email from the Town Board member saying that the conduct of the Town Board was that they didn’t like me, so they were going to vote against me. And you’re listening to Erica Brewer tell the story of her battle with her own town and the punishment and retribution she was experiencing by expressing her opinion on a separate matter relating to the same and aforementioned City Council. And we know these stories, and they happen, and we love telling them because there’s heroism involved. Erica challenged the City Council. Her lawyer, Kirby West of the Institute for Justice, helped. When we come back, more of this story, our Rule of Law story, and why Kirby and Erica think what the town did was illegal, here on our American Stories. And we returned to our American Stories and our Rule of Law series. When we last left off, Erica Brewer had accumulated over $20,000 in fines and fees after speaking out against her Town Board because of their actions toward a neighbor. She assumed the fees were because of her exercise of her First Amendment rights, but she needed a smoking gun for solid proof, a smoking gun which she would get in the form of an email from someone on the Board itself. Let’s pick up where we last left off. I really feel like our Town Board did not want to have somebody questioning the way things have always been. This attitude and mentality of, “Well, this is the way it’s always been,” does not create an atmosphere of growth of expansion in a positive way for a community where younger generations can speak their voice, input to the community, and share some of their experiences as well. I think when it’s a community and people are elected in, they have to be open to how they’re serving that community and the population that’s there, and so when someone is challenging that or questioning that, I just think it really brought in this irritation, and it was like, “Well, we’ve got to silence her and make this stop.” What the Town is doing is illegal because it’s violating our Amendment rights. To go after somebody who’s speaking out against the government, that’s First Amendment rights. That’s pretty basic. What happened to Erica and Zach was unconstitutional. This enforcement action was pursued against anything, it certainly protects your right to speak critical of the government. That is core protected First Amendment expression. And when a government enforces ordinance violations or really takes any kind of adverse action against you as a direct result because of things that you said about the government, that violates the First Amendment. With that, they fired back as the Town of Eagle. You know, they claim they’re not violating my First Amendment rights because I’m still speaking. That statement in a court document makes my stomach turn. My own local government says, “Oh, yeah, no, there’s not a problem because she’s still talking.” What if there was a problem? Does that mean you would silence me somehow? That, it seems so ominous and threatening and just something out of a historical movie in my mind, possible mob movie parallels aside, the Town of Eagle seems right here. Erica is still speaking, after all. So how could her First Amendment rights be violated? It turns out it’s not that simple. So there’s a legal standard here, and the legal standard is, “Would the actions of the government chill the speech of a person of ordinary firmness?” How would your average person react to being threatened with tens of thousands of dollars in fines, like it’s in this case? It seems clear, and the short answer is Erica is a person of extraordinary firmness. She is incredibly committed to making sure that the Town of Eagle is a fair place to live. She’s passionate about defending the First Amendment rights of the residents of the Town of Eagle. She’s passionate about her farm. And a threat of $20,000 in liability, that would have an effect on my decisions. It would have an effect on how I decided to do, and I think most people feel that way. That’s a lot of money. And adding to that, just the threat of continued enforcement. And, you know, this has been a process that’s been going on for a year now, but the original enforcement process dragged out over months, and there were many visits to Erica and Zach’s farm. And just that decision of, “Listen, we could just shut up and not have to deal with this anymore, or we could continue talking, and, you know, who knows what else is going to happen. There’s going to be more visits and more code violations.” I think. I just don’t think it’s debatable that a person of ordinary firmness would be affected by that. So that’s incredibly problematic. And that’s the first big constitutional violation and issue here. The second big constitutional violation that we’ve pointed out in our lawsuit is related to the fee structure of the attorneys who work for the town. So a lot of small towns do what Eagle does. This isn’t problematic in and of itself, but they are too small to have an attorney that works for the town full time, and they farm that work out to a private law firm. That’s what Eagle does. There’s a law firm called the Municipal Law Group that handles the prosecution of ordinance violations for the town. This isn’t, like I said, necessarily problematic, but the way with an hourly rate, you know, there’s an incentive to work more hours. And how do you work more hours? Well, if you can find more violations and you can make the enforcement process drag out longer, not resolve it quickly, you’re going to make more money because you’ve worked more hours. So we, the citizen, are not only paying for our own court representation at that point or an attorney to represent us, but we then have to pay for the town’s attorney who is fighting against us. The Supreme Court has said, in a case called Marshall v. Jerrico, this is from 1980, that a scheme injecting personal financial interest into prosecutions could run afoul of the Constitution, would raise constitutional issues under the Fourteenth Amendment’s guarantee of due process. And that’s what we think is exactly what’s happening here, if there’s a direct link between prosecution and the pocketbooks of the town attorneys, and that’s incredibly problematic. Erica and the Institute for Justice, which, by the way, takes cases pro bono or free of charge for its clients, teamed up in 2020 to take Eagle to task on all of this. But where does the federal judge to make a decision based on the motions that we have submitted as well as the Town of Eagle. And the Town of Eagle has had some motions where they just are asking the judge to throw everything out because they’re in the right. And with the Town of Eagle moving this into federal court, I don’t think the Town of Eagle citizens even realize what that cost is. Who’s paying for this? That’s very concerning, for one, and then to be frivolous with additional motions being filed and multiple attorneys working on this case. You know, IJ with our representation, we’re not as a family in this suing for hundreds of thousands of dollars. We are suing for one dollar. And I hope that the public understands that this right now isn’t about, you know, being a part of a litigation money-making machine. This is about what’s right. I mean, I have teenage children, and I am trying to raise them to be good contributors to society and being good human beings in the world, and this was the perfect civics lesson for them. Unfortunately, that it had to be this direct in our family, but, you know, they’re getting a very well-rounded understanding of local government and how to operate a business through our farm operations and what our rights are within that. And a great job by Monty Montgomery. A special thanks to Erica Brewer and also a special thanks to her lawyer, Kirby West of the Institute for Justice. And what a story Erica Brewer told: small-town rural America at its best, just wanting to sell some produce, getting punished by her own government officials, or speaking her mind about some other business before the local Board. The story of Erica Brewer: our Rule of Law series here on our American Stories. This is our American Stories.