MONROE - Attorneys have submitted a response and a reply regarding a past city utility director's motion to intervene as a plaintiff in a case against the City of Monroe now pending in Green County Circuit Court.
Judge Rhonda Lanford, a Dane County Circuit court judge appointed to the case, has set Aug. 13 to hear oral arguments on the motion to intervene at the Green County Justice Center.
The case, regarding allegations of open meeting violations in September 2013 by the City of Monroe Salary and Personnel Committee, was filed on behalf of the State of Wisconsin by Green County District Attorney Gary Luhman earlier this year.
Alan Eckstein contends he was wrongfully dismissed from his position as the city's utility director during a closed session of that meeting and, therefore, has a personal interest in the case, which the State will not sufficiently pursue. He is seeking reimbursement for his attorney fees and costs in pursuing the matter.
The city is denying Eckstein is entitled to any compensation, reimbursement or relief.
The defendants' basic argument against Eckstein's motion is that Wisconsin law governing open meeting violations does not authorize piggybacking of litigants in state prosecution of cases of such violations.
In a response to the motion, submitted July 21, Ann Wirth, an attorney with the Gregg Gunta Law Office for the defendants, argues that Wisconsin's open meeting statute covering lawsuits in open meeting violations would have allowed Eckstein to pursue the case, only if the state had not pursued it. However, the State is pursuing the case, and therefore, there exists no provisions in the statute or legal precedent to allow his participation in the case.
Furthermore, she wrote, Eckstein fails to show how the outcome of the case would impede or impair his interests, because he is able to pursue his own claim for damage, if there is a violation.
Also, if Eckstein is allowed to participate and the city loses its case, it is possible the city would be "unfairly subject to liability for attorney fees incurred by both the State and Eckstein" - a "double penalty."
In his reply to the defendants submitted Tuesday, Eckstein's attorney, Aaron Halstead, writes that Eckstein is allowed to intervene "as a matter of right" under another Wisconsin statute specifically regarding intervention in legal actions. Under that statute, anyone, Halstead emphasized, shall be permitted to intervene if they meet the requirements.
"Eckstein is not seeking to commence an action, but rather to intervene," Halstead wrote.
Eckstein does not have to prove that the open meeting law specifically provides for intervention by a non-party, according to Halstead. "There is a specific intervention statute that applies to all civil action," he wrote.
Under the intervention statute, Eckstein must show he has an interest relating to the case; that the outcome might impair or impede his ability to protect his interest; and that his interest will not be "adequately represented by the existing parties" in the case, Halstead wrote, and cited two Wisconsin court cases as legal precedence.
Halstead further pointed out that he specified these prerequisites in his principal brief on the motion. The defendants' response "didn't even reference the relevant statutes nor did it address any of the elements, much less dispute Eckstein's eligibility under it," he wrote.
The purpose of intervention, Halstead continued, "is to dispose of lawsuits by involving as many apparently concerned persons as compatible with efficiency and due process," and he cited another case of legal precedence.
As to the double penalty for the city if it loses its case, Halstead said that argument is premature and irrelevant. The same argument could be made against any motion to intervene in a case under a fee-shifting statute, he argued.
And if the city loses its case, the court must find Eckstein's attorney fees to be reasonable or reduce them, after a liability judgment has been entered, Halstead added. How much is reasonable should have no bearing in Eckstein's right to intervene, he argued.
A hearing for oral arguments on Eckstein's motion to intervene is scheduled for 10 a.m. Aug. 13 in Branch 2 of the Green County Justice Center.
Judge Rhonda Lanford, a Dane County Circuit court judge appointed to the case, has set Aug. 13 to hear oral arguments on the motion to intervene at the Green County Justice Center.
The case, regarding allegations of open meeting violations in September 2013 by the City of Monroe Salary and Personnel Committee, was filed on behalf of the State of Wisconsin by Green County District Attorney Gary Luhman earlier this year.
Alan Eckstein contends he was wrongfully dismissed from his position as the city's utility director during a closed session of that meeting and, therefore, has a personal interest in the case, which the State will not sufficiently pursue. He is seeking reimbursement for his attorney fees and costs in pursuing the matter.
The city is denying Eckstein is entitled to any compensation, reimbursement or relief.
The defendants' basic argument against Eckstein's motion is that Wisconsin law governing open meeting violations does not authorize piggybacking of litigants in state prosecution of cases of such violations.
In a response to the motion, submitted July 21, Ann Wirth, an attorney with the Gregg Gunta Law Office for the defendants, argues that Wisconsin's open meeting statute covering lawsuits in open meeting violations would have allowed Eckstein to pursue the case, only if the state had not pursued it. However, the State is pursuing the case, and therefore, there exists no provisions in the statute or legal precedent to allow his participation in the case.
Furthermore, she wrote, Eckstein fails to show how the outcome of the case would impede or impair his interests, because he is able to pursue his own claim for damage, if there is a violation.
Also, if Eckstein is allowed to participate and the city loses its case, it is possible the city would be "unfairly subject to liability for attorney fees incurred by both the State and Eckstein" - a "double penalty."
In his reply to the defendants submitted Tuesday, Eckstein's attorney, Aaron Halstead, writes that Eckstein is allowed to intervene "as a matter of right" under another Wisconsin statute specifically regarding intervention in legal actions. Under that statute, anyone, Halstead emphasized, shall be permitted to intervene if they meet the requirements.
"Eckstein is not seeking to commence an action, but rather to intervene," Halstead wrote.
Eckstein does not have to prove that the open meeting law specifically provides for intervention by a non-party, according to Halstead. "There is a specific intervention statute that applies to all civil action," he wrote.
Under the intervention statute, Eckstein must show he has an interest relating to the case; that the outcome might impair or impede his ability to protect his interest; and that his interest will not be "adequately represented by the existing parties" in the case, Halstead wrote, and cited two Wisconsin court cases as legal precedence.
Halstead further pointed out that he specified these prerequisites in his principal brief on the motion. The defendants' response "didn't even reference the relevant statutes nor did it address any of the elements, much less dispute Eckstein's eligibility under it," he wrote.
The purpose of intervention, Halstead continued, "is to dispose of lawsuits by involving as many apparently concerned persons as compatible with efficiency and due process," and he cited another case of legal precedence.
As to the double penalty for the city if it loses its case, Halstead said that argument is premature and irrelevant. The same argument could be made against any motion to intervene in a case under a fee-shifting statute, he argued.
And if the city loses its case, the court must find Eckstein's attorney fees to be reasonable or reduce them, after a liability judgment has been entered, Halstead added. How much is reasonable should have no bearing in Eckstein's right to intervene, he argued.
A hearing for oral arguments on Eckstein's motion to intervene is scheduled for 10 a.m. Aug. 13 in Branch 2 of the Green County Justice Center.