Petition for Writ of Certiorari — J. J. Blonien & Associates, Inc. v. Community Newspapers, Inc.

No.

90-4 24°

Supreme Court, U.S.

Tine

SEP 10 198

JOSEPH F. SPAnOL, JR,

CLERK

IN THE

SUPREME COURT OF UNITED STATES

October Term, 1990

<———

ON OMI A ee ns

J.J. BLONIEN & ASSOCIATES, INC. and

CITY OF WEST ALLIS,

Petitioners,

Vv.

COMMUNITY NEWSPAPERS, INC. and

ELSA R. SCHUPMEHL,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE WISCONSIN COURT OF APPEALS

DISTRICT I ~

Michael Sachen

7525 W. Greenfield Ave.

West Allis, WI 53214

(414)256-8258

John J. Kastl

1112 South 60th Street

West Allis, WI 53214

(414)778-1128

Counsel for City of

West Allis

Dated: September 6, 1990

Howard Goldberg

Counsel of Record

Margaret Baumgartner

DeWitt, Porter, Huggett,

Schumacher & Morgan, S.C.

Suite 600

2 East Mifflin Street

Madison, WI 53703

(608)255-8891

Counsel for J.J. Blonien &

Associates, Inc.

i

QUESTION PRESENTED

Wisconsin law mandates that municipalities

publish notice of matters of local governance in a

newspaper meeting certain statutory eligibility

requirements. The Wisconsin courts ruled that only

newspapers which actually charge their readers a fee

to receive copies are permitted by statute to print

municipal notices.

The question presented is whether, under the

Fourteenth Amendment, the State of Wisconsin may

constitutionally prohibit publication of notice in a

newspaper which does not charge its readers, thereby

denying notice to citizens who cannot afford to pay

a fee.

li

LIST OF PARTIES

The petitioner, J.J. Blonien & Associates, Inc.,

is a Wisconsin corporation and has -no parent

companies, subsidiaries or corporate affiliates. The

petitioner, City of West Allis, is a municipal

corporation of the second class formed within the

municipal laws of Wisconsin.

In addition to the parties listed in the caption

on the cover of this document, the Attorney General

of Wisconsin was notified of the constitutional issues

presented in the appeal as required by Wisconsin law

but declined to participate.! (R-52)?

1 see, Midwest Mutual Insur. Co. v. Nicolazzi, 138 Wis.2d

192, 202, 405 N.W.2d 732 (Ct. App. 1987).

2Despite the fact that the record presently remains with

the courts below, petitioners will continue to cite to the record

as indexed for purposes of the appeal in the Wisconsin courts.

~ Ue pan on

ili

TABLE OF CONTENTS

Page

cs i

Oe ee eee ii

RS a es 1

ET 2

CONSTITUTIONAL AND STATUTORY

ee 3

warineeeeen Gr bemet CASE .. www cee 5

REASONS FOR GRANTING THE PETITION ..... 13

I. REVIEW IS WARRANTED BECAUSE

THE CASE PRESENTS IMPORTANT

CONSTITUTIONAL QUESTIONS

TOUCHING UPON FUNDAMENTAL

pe 13

A. The Wisconsin Court’s Decision

Means, In Effect, That Wisconsin

Citizens Must Pay A Fee To Receive

The Notice Essential To The Exercise

Of Their Fundamental Rights ....... 13

1. Notice is essential to the right to vote. . 15

2. Notice is essential to the rights of

petition and association. ........... 17

iv

TABLE OF CONTENTS (Continued)

Page

B. Although Notice Is Indispensable

To The Democratic Process, The

Right To Receive Notice Without

Charge Appears To Be An Issue Of

First Impression In The Courts ...... 20

Il. |THE WISCONSIN COURT'S DECISION

CONFLICTS WITH PRINCIPLES

ESTABLISHED BY THIS COURT

REGARDING IMPERMISSIBLE

WEALTH-BASED DISCRIMINATION ...... 24

A. This Court Has Continuously Protected

Access To the Political Process By

Striking Fee Requirements Which

Impede The Exercise Of Fundamental

NE a Cae wsiekGrec docs. 24

B. The Wisconsin Court Of Appeals Erred

In Refusing To Acknowledge The

Impact Of A Fee Requirement On

Fundamental Rights .............. 28

eee | ae A eo ere ree ee ee 33

es

Vv

TABLE OF AUTHORITIES

Page

Cases Cited

Anderson v. Celebrezze, 460 U.S. 780 (1983) .......... 17

Bullock v. Carter, 405 U.S. 134 (1972) ...... 24, 25, 28, 30

Cipriano v. Houma, 395 U.S. 701 (1969) ............ 25

City of Phoenix v. Kolodziejski, 399 U.S. 204 ......... 25

Community Newspapers, Inc. v. City of West Allis,

156 Wis.2d 350, 456 N.W.2d 646 (Ct.App. 1990);

rev. denied, __ Wis.2d __, 458 N.W.2d 532........... 1

Douglas v. California, 372 U.S. 353 (1963) ........... 24

Edwards v. California, 314 U.S. 160 (1941) .......... 26

Harper v. Virginia Bd. of Elections,

Po eee eee eee 15, 24, 27, 29

Seer 0 ee BC bbs obs ce siiaaes 25

Kramer v. Union Free School District No. 15,

ok EY Pe ee Pee eee eee 26, 27

Lubin v. Panish, 415 U.S. 709 (1974) .............. 25

McDonald v. Smith, N.C., 472 U.S. 479 (1985) ........ 18

Midwest Mutual Insur. Co. v. Nicolazzi,

138 Wis.2d 192, 405 N.W.2d 732 (Ct. App. 1987) ...... ii

Mine Workers v. Illinois Bar Assoc.,

Sg, Tre eT ere er 17

vi

TABLE OF AUTHORITIES (Continued)

Page

Mullane v. Central Hanover Bank & Trust Co.,

SEP Us BOW CUNO 6 ce cee ec c cc cecccccsccce 22, 23

Orr v. Orr, 440 U.S. 268 (1979) ..........2 cee enee 2

Ortiz v. Hernandez Colon,

385 F. Supp. 111 (Dt.Ce. P.R. 1974) ............... 18

Raley v. Ohio, 360 U.S. 423 (1959) ........2..0206- 2

Record Publishing Co. v. Kainrad,

49 Ohio St.3d 296, 551 N.E.2d 1286 (Ohio 1990) ...... 21

Reynolds v. Sims, 377 U.S. 533 (1964) ........... 16, 20

Ross v. Moffitt, 417 U.S. 600 (1974) ............4.. 15

Shapiro v. Thompson, 394 U.S. 618 (1969) ........... 24

State ex rel. Althouse v. Madison,

79 Wis.2d 97, 255 N.W.2d 449 (1977) .............. 18

Thompson v. Kenosha County,

64 Wis.2d 673, 221 N.W.2d 845 (1974) ............. 11

Tulsa Collection Services v. Pope,

CED wesc ceesceseteecsseenseenes 22

Turner v. Fouche, 396 U.S. 346 (1970) .......... 26, 27

U.S. v. SCRAP, 412 U.S. 669 (1973) ............... 11

William v. Rhodes, 393 U.S. 23 (1968) ............. 17

ante >

Vii

TABLE OF AUTHORITIES (Continued)

Page

Woodward v. City of Deerfield Beach,

- Fe § F. Cs i EP eerrrrrrerrr res 27

Constitutional and Statutory Provisions

U.S. Constitution, First Amendment ............... 17

U.S. Constitution, Fourteenth Amendment, sec. 1 ..... 3

U.S. Constitution, Fourteenth Amendment .... 10, 14, 15

Wisconsin Constitution, Art. XI, §3 ..............-. 18

, § Preece iret es 2

MS. she wena ese beb en saben 16

i ee obs Khe OO we ae eee 18

CS cccdeececccceadscossacouveee 19

svc ete gees eseeswsenesane 16

ss oss Sys o-ale do oe 80S 66 De oO 19

re a tte ee an eaeeeen eeu ea 19

i a ek be eeoenceceeeen 4

kv can bescnexesnesecent 6, 14

Te 31

_ ee 5, 30, 31

Es kn wong ceee eee cence eeen 29

Wis. Stats. §$985.03(1) .......... nie 06s a ae 6

Wis. Stats. §985.03(1}(a) ............-. 3, 8, 14, 17, 31

, 5 = aera 9

— 5 rar mas 6

Ce occ esc ewcccceeeceawe 7, 31

Ek Sn a 6 05a 0 6.e 000 ue ewe eee 31

Other Authorities

Black’s Law Dictionary (5 Ed. 1979) ............+-- 21

ET ae

1

OPINIONS BELOW

The Opinion of the Wisconsin Court of

Appeals is reported as Community Newspapers, Inc.

v. City of West Allis, 156 Wis.2d 350, 456 N.W.2d 646

(Ct.App. 1990); rev. denied ___ Wis.2d ___, 458

N.W.2d 532; and is reprinted in the Appendix, pages

101-17. The Order of the Milwaukee County Circuit |

Court, Case No. 88-CV-010195, (April 12, 1989), is

reprinted in the Appendix, pages 118-28. The Order

of the Wisconsin Supreme Court denying review,

reported at __—s«-—~ W’is.2d , 458 N.W.2d 532, is

reprinted in the Appendix, pages 129-30.

2 “

JURISDICTION

The United States Supreme Court has

jurisdiction over this matter pursuant to 28 U.S.C.

§1257(a), which permits review where a state statute

has been challenged as repugnant to the United

States Constitution.

The Wisconsin Court of Appeals, District I,

rendered its opinion and decision on April 17, 1990.

The Wisconsin Court of Appeals determined that it

was constitutionally permissible to mandate notice

publication only in newspapers which are purchased

by readers and no others. Review is thus

appropriate. Orr v. Orr, 440 U.S. 268, 274-75 (1979);

Raley v. Ohio, 360 U.S. 423, 436-37 (1959).

The Wisconsin Supreme Court, Justice

Abrahamson dissenting, denied review on June 12,

1990.

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitutional Provisions

Amend. XIV, sec. 1, United States Constitution

provides:

Section 1. All persons born or

naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of the

United States and of the State wherein they

reside. No State shall make or enforce any

law which shall abridge the privileges or

immunities of citizens of the United States;

nor shall any State deprive any person of life,

liberty, or property, without due process of

law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Statutory Provisions

The statute at issue is Section 985.03(1)(a) of

the Wisconsin Statutes. That statute provides:

985.03 Qualification of newspapers. (1)(a)

No publisher of any newspaper in this state

shall be awarded or be entitled to any

compensation or fee for the publishing of

any legal notice unless, for at least 2 years

immediately before the date of the notice

publication, the newspaper has_ been

published regularly and continuously in the

4

city, village or town where published, and has

had a bona fide paid circulation:

1. That has constituted 50% or more of its

circulatton; ard,

2. That has had actual subscribers at each

publication of not less than 1,000 copies in

ist and 2nd class cities, or 300 copies if in

3rd and 4th class cities, villages or towns.

Also involved are Wis. Stats. §985.01:

(2) The term "legal notice" is every notice

required by law or by order of a court to be

published in a newspaper and includes:

a) Every publication of laws, ordinances,

resolutions, financial statements, budgets and

proceedings intended to give notice in an

area;

b) Every notice and certificate of election,

facsimile ballot, referenda, notice of public

hearing before a governmental body, and

notice of meetings of private and public

bodies required by law; and

c) Every summons, order, citation, notice of

sale or other notice which is intended to

inform a person that he may or shall do an

act or exercise a right within a designated

period or upon or by a designated date.

(4) "Proceedings", when published in

newspapers, mean the substance of every

official action taken by a local governing

body at any meeting, regular or special.

5

and also Wis. Stats. §985.02(1):

Except as otherwise provided by law, a legal

notice shall be published in a newspaper

likely to give notice in the area or to the

person affected. Whenever the law requires

publication in a newspaper published in a

designated municipality or area and no

newspaper is published therein publication

shall be made in a newspaper likely to give

notice.

STATEMENT OF THE CASE

The petitioner, J.J. Blonien & Associates, Inc.,

("Blonien") is a publishing company located in West

Allis, Wisconsin, a small suburban city of about

64,000 inhabitants” located outside of Milwaukee.

Blonien publishes a weekly newspaper for circulation

to about 25,000 homes in West Allis, which is

entitled the West Allis Enterprise. (R-39) A rival

weekly newspaper entitled the West Allis Star is

published by the respondent, Community

3See, Wisconsin Blue Book. 1987-88, p.721.

6

Newspapers, Inc. ("Community"), with a weekly

circulation of about 4,000 to 5,000. (R-35)

The case arose in 1988 when the petitioner,

City of West Allis ("City"), accepted Blonien’s lower

bid for the 1988-89 annual contract to print its

municipal notices. Under Wisconsin law, the City

must publish all notices as defined in Wis. Stats.

§985.01(2). For most Wisconsin municipalities, this

publication requirement cannot be satisfied by

posting or by publication through any other media.

Rather, municipal notices may only be published in

a newspaper meeting the statutory qualifications in

Wis. Stats. $985.03(1) or a daily $100 fine may be

imposed pursuant to Wis. Stats. §985.03(2). Further,

as a second class city, the City must invite bids from

es

eligible newspapers for printing its notices and award

the printing contract to the lowest bidder.

In April of 1988, as required under Wisconsin

law, the City invited bids for the annual printing

contract. Blonien submitted a bid of $4.95 per

column inch to print the City’s notices in the West

Allis Enterprise. Community submitted a bid of $5.50

per column inch to print the City’s notices in the

West Allis Star. (R-51) After the City awarded the

contract to Blonien as the lowest bidder, Community

brought suit in Milwaukee County Circuit Court for

declaratory judgment and injunctive relief.> (R-1)

Community alleged that Blonien’s newspaper,

the Enterprise, did not meet the requirements of Wis.

4see, Wis. Stats. $985.06

5Community eventually added a West Allis taxpayer and

the mother of one of its attorneys, the Respondent Elsa R.

Schupmehl, as a plaintiff in the suit. (R-27,40)

8

Stats. $985.03(1)(a). Specifically, Community alleged

that the Enterprise was not qualified to print notices

because West Allis residents do not pay a fee to

receive copies of the Enterprise. Rather, circulation

is paid for entirely by the advertisers as part of

Blonien’s circulation policy and, thus, the Enterprise

is circulated by carrier to all consenting West Allis

households without charge. Free home delivery is

guaranteed to all who wish to receive the Enterprise

within West Allis.° (R-39)

In contrast, Community charges a fee for

receipt of the Star. Claiming that Community was

thus the only qualified bidder under the statutory

qualifications, respondents moved for partial

summary judgment voiding the contract between

Persons who reside outside of the West Allis delivery

area do pay a fee to receive the newspaper.

9

Blonien and the City and awarding the contract to

Community. (R-30) On their motion, respondents

stipulated that the Enterprise was a newspaper as

defined in the Wisconsin Statutes.’ (R-31)

Respondents also acknowledged that the costs of

creating and circulating newspapers are largely

covered by revenue received from advertisers. (R-

49)

The dispute rested on the legal consequences

of the fact that the Enterprise was generally available

to all West Allis residents without charge and the

Star was generally available only for a fee. (R-31,49)

The petitioners argued in defense that the statutory

interpretation pressed by the respondents, which

would effectively withhold notice of matters affecting

local self-government from citizens who could not

7S$ee, Wis. Stats. $985.03(1)(c).

10

pay, was not consistent with the constitutional

principles of equal protection and due process set

forth in the Fourteenth Amendment. (R-38,41)

Nonetheless, Circuit Judge Russell W. Stamper

of the Milwaukee County Circuit Court construed the

statute at issue to require that a newspaper charge at

least half of its readers a fee in order to be eligible

to print municipal legal notices. The trial court

concluded that a newspaper delivered to all

households without charge is, for that reason alone,

not_permitted to contract with a municipality to print

its notices. The trial court then granted the

respondents’ motion for partial summary judgment

but rejected their request to mandate an award of

the contract to Community. (Ap.127-28) The trial

court did not address the constitutional! questions.

11

Blonien appealed to the Wisconsin Court of

Appeals. On appeal, Blonien again raised the

constitutional challenge, being adversely affected by

the trial court’s interpretation of the statute both as

a West Allis pubtinnnes desiring to compete for the

City’s legal advertising and as a West Allis taxpayer.®

(R-39)

Concluding that a newspaper must have "paying

subscribers" in order to qualify as a legal notice

medium, the Court of Appeals ruled that the statute

as construed was constitutional. The Court of

Appeals acknowledged that the ability to pay may

not be used as a criterion for the exercise of

fundamental political rights. Nonetheless, the Court

of Appeals determined that it was constitutionally

8 see, e.g., Thompson v. Kenosha County, 64 Wis.2d 673,

221 N.W.2d 845 (1974); U.S. v. SCRAP, 412 U.S. 669, 689 n.14,

(1973).

12

permissible to require citizens, in effect, to purchase

the notice indispensable for the exercise of such

rights because no citizen was actually precluded from

voting based on the inability to pay. (Ap.112-17)

Although notices involve public hearings, municipal

proceedings and similar matters as well as elections,

the Court of Appeals never examined the impact of

the law on other fundamental political rights of local

self-government such as the right to petition and the

right to associate politically.

Upon receipt of the adverse decision of the

Wisconsin Court of Appeals, Blonien petitioned the

Wisconsin Supreme Court for discretionary review.

Review was denied by Order, dated June 12, 1990,

with one dissent. (Ap. 129-30)

13

REASONS FOR GRANTING THE PETITICN

I. REVIEW IS WARRANTED BECAUSE THE CASE

PRESENTS IMPORTANT CONSTITUTIONAL

QUESTIONS TOUCHING UPON FUNDAMENTAL

POLITICAL RIGHTS.

A. The Wisconsin Court’s Decision Means, In Effect,

That Wisconsin Citizens Must Pay A Fee To

Receive The Notice Essential To The Exercise Of

Their Fundamental Rights.

This case involves important constitutional

considerations of first impression regarding the

publication and accessibility of public or "legal"

notice to state citizens. These notices involve rights

which form the very foundation of our political

system of self-government: the right to vote, the

right to associate politically, and the right to petition.

Unless changed by this Court, it is now established

law in Wisconsin that a municipality § must

discriminate against its poorer constituents by giving

notice of inter alia, elections, referenda, municipal

14

meetings, and public hearings only to those who can

afford to buy a newspaper.”

In the view of the Wisconsin courts, Wis. Stats.

§985.03(1)(a) requires Wisconsin municipalities to

publish such notices only in newspapers which charge

the ultimate recipients a fee. In effect, then, the

intended recipients of legal notice must buy it from

a private publishing entity. Yet, their tax dollars are

already being expended to give notice.

The state law at issue implicates substantive

and procedural due process in matters affecting "life,

liberty and property" under the Fourteenth

Amendment. Petitioners submit that access to public

affairs and notice is a liberty interest protected by

the due process clause. However, where discrimina-

tion occurs against a class of persons similarly

See, Wis. Stats. $985.01(2) infra. at page 4.

15

situated, these due process principles really fall

within the purview of the equal protection clause of

the Fourteenth Amendment. Ross v. Moffitt, 417

U.S. 600, 609 (1974).

The equal protection clause prohibits states

from imposing fee requirements which impede the

exercise of fundamental rights by the less-affluent.

Classifications based on wealth are "traditionally dis-

favored" when they burden citizens’ fundamental

political rights. Harper v. Virginia Bd. of Elections,

383 U.S. 663, 666-68 (1966), a case voiding an

annual $1.50 poll tax because even a minimal price

on the franchise, once granted by a state, constituted

an invidious wealth discrimination.

1. Notice is essential to the right to vote.

Notice is vital to the right to vote. The right

to vote in a free and unimpaired manner is

16

preservative of other basic civil and political rights.

Reynolds v. Sims, 377 U.S. 533, 561-62 (1964). Any

alleged infringement of the right of citizens to vote

must be carefully and meticulously scrutinized. /d.

‘In Wisconsin, "[V]oting is a constitutional right, the

vigorous exercise of which should be strongly en-

couraged." Wis. Stats. $6.84.

It seems elementary that citizens cannot

exercise their right to vote without the requisite

knowledge of when, how, and where to vote and

what they may be voting on. In recognition of that

fact, specific laws with respect to notice of the dates

and times of elections, facsimile ballots, referenda,

and absentee voting for the aged and disabled,

among others, are carefully incorporated into the

election laws of Wisconsin. !? Yet, these same notice

10 see, Wis Stats. $10.01, et seq.

17

laws are subject to the newspaper eligibility

requirements of Wis. Stats. §985.03(1)(a). Thus, if

the Court of Appeals’ decision is permitted to stand,

the notice critical for the exercise of the franchise is

available only to those who can afford to purchase it.

2. Notice is essential to the rights of

petition and association.

The right to vote is closely related to the

fundamental rights of political association found in

the First Amendment. See, e¢.g., Anderson v.

Celebrezze, 460 U.S. 780 (1983) (access to ballot of

independent political parties); William v. Rhodes, 393

U.S. 23 (1968) (right to associate for advancement of

political beliefs).

The First Amendment right to petition is

"among the most precious of the liberties guaranteed

by the Bill of Rights." Mine Workers v. Illinois Bar

| '

18

Assoc., 389 U.S. 217, 222 (1967). The values in the

right of petition "as an important aspect of self-

government are beyond question." McDonald v.

Smith, N.C., 472 U.S. 479, 483 (1985).

At the local level, it has been recognized that

citizens are most directly involved in the exercise of

self-government and political organization. Ortiz v.

Hernandez Colon, 385 F. Supp. 111, 116 (Dt.Ct. P.R.

1974). Wisconsin recognizes this principle in its

provisions for municipal home-rule, Wis. Const., Art.

XI, §3, and for municipal "direct legislation" by

petition, Wis. Stats. §9.20, a statute implementing

legislative powers reserved by the people according

to State ex rel. Althouse v. Madison, 79 Wis.2d 97,

118-19, 255 N.W.2d 449 (1977). These principles of

open and participatory government are strongly

expressed in Wisconsin’s open meetings laws:

19

In recognition of the fact that a

representative government of the American

type is dependent upon an_ informed

electorate, it is declared to be the policy of

this state that the public is entitled to the

fullest and most complete information

regarding the affairs of government as is

compatible with the conduct of governmental

business.

Wis. Stats. $19.81(1), et seq.

The assumption that notice is essential to open

and participatory government underlies the specific

requirements for notice set forth in these laws.!!

Again, however, that notice may only be published in

a newspaper which charges a fee to its readers. The

fundamental rights of petition and _ political

association, intimately linked with the power to vote,

are impaired when the knowledge indispensable to

their exercise is withheld. Their political

Direct legislation petitions, when submitted to a vote

of the electorate, must be noticed by the city clerk. Wis. Stats.

§9.20(5). Every meeting of a governmental body shall be

preceded by notice. Wis. Stats. $19.83.

20

effectiveness is entirely dependent on notice. Yet,

only those who pay a fee to a private publisher are

presently deemed entitled to receive notice under

Wisconsin law.

B. Although Notice Is Indispensable To The

Democratic Process, The Right To Receive Notice

Without Charge Appears To Be An Issue Of First

Impression In The Courts.

Every citizen has an inalienable right to an

opportunity for full and equally’ effective

participation in the political processes of the state’s

legislative bodies. Reynolds, 377 U.S. at 565-6. The

Wisconsin Court of Appeals agreed that the

opportunity for equal participation "is a sine qua non

to a citizens’ role in the affairs of government." (Ap.

112) The Court of Appeals would not acknowledge,

however, that notice is necessary to have that

opportunity. It is meaningless to describe the rights

21

essential to political participation as fundamental

precepts of liberty and not to acknowledge a

correlative right to a meaningful opportunity to

obtain the information indispensable for the exercise

of such rights.

While no case that we could find has

specifically addressed this issue, the proposition that

citizens have a right to notice seems so basic as to

not require expression. The purpose of "notice" is to

provide:

...information, an advice, or written warning,

in more or less formal shape, intended to

apprise a person of some proceeding in which

his interests are involved, or informing him

of some fact which it is his right to know and

the duty of the notifying party to

communicate.

Record Publishing Co. v. Kainrad, 49 Ohio St.3d 296,

551 N.E.2d 1286 (Ohio 1990), citing Black’s Law

Dictionary (5 Ed. 1979) 957. Surely, the "right to

22

know" is as much a part of the rights to vote, |

petition and associate as the right to form political

parties or to appear on the ballot.

Similarly, notice is as vital to a citizen’s interest

in liberty as it is to a creditor’s interest in property.

Yet, most notices affecting property interests require

mailing and/or personal service in order to comply

with due process. See, e.g., Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950);

Tulsa Collection Services v. Pope, 485 U.S. 478

(1988). This is because the "right to be heard has

little reality or worth unless one is informed that the

matter is pending and can chase for himself

whether to appear or default, acquiesce or contest."

Mullane, 339 U.S. at 314. Likewise, the right to vote

or to petition or to associate has "little reality or

23

worth unless one is informed" of the matter that is

pending. Id.

Of course, the issue here has never been

whether a municipality must provide actual notice by

mail or personal service to each of its citizens.

Rather, the issue is whether its citizens must pay a

fee to receive notice. A municipality might not be

required to mail or serve actual notice to individuals

for reasons of economy and efficiency. However,

this is not a valid reason for requiring citizens to pay

a fee to a private publishing entity to receive notice.

Notice should at least be available to all without

regard to the ability to pay.

Petitioners submit that the Constitution

requires a meaningful opportunity to obtain the

necessary information for the effective exercise of

political rights. It requires more than telling citizens

24

to search out the information at the library. Yet, the

Wisconsin Court of Appeals’ ruling permits more

rights to a creditor than to a voter, particularly an

impoverished voter.

II. THE WISCONSIN COURT’S DECISION

CONFLICTS WITH PRINCIPLES

ESTABLISHED BY THIS COURT

REGARDING IMPERMISSIBLE WEALTH-

BASED DISCRIMINATION.

A. This Court Has Continuously Protected Access To

the Political Process By Striking Fee Requirements

Which Impede The Exercise Of Fundamental

Rights.

While no case specifically deals with the

question here, this Court has consistently held invalid

wealth-based classifications which interfere with

various fundamental rights. See, e.g., Shapiro v.

Thompson, 394 U.S. 618 (1969) (right to interstate

travel); Douglas v. California, 372 U.S. 353 (1963);

Harper, supra. (right to vote); Bullock v. Carter, 405

25

U.S. 134 (1972) (right to vote for the candidate of

one’s choice); Lubin v. Panish, 415 U.S. 709 (1974)

(right to appear as candidate on a ballot). Wealth

burdens on fundamental rights are subject to strict

scrutiny, i.e., there must be a showing that the wealth

classification is necessary to achieve a compelling

state interest. Bullock, 405 U.S. at 143-44.

In addition to rejecting the poll tax and ballot

access fees, this Court has struck down property-

holder requirements. A Louisiana statute permitting

only property taxpayers to vote in local bond

referenda was subject to strict scrutiny and held to

be a violation of equal protection in Cipriano v.

Houma, 395 U.S. 701 (1969). Accord: Hill v. Stone,

421 U.S. 289 (1975) and City of Phoenix v. Kolod-

ziejski, 399 U.S. 204 (1970). Likewise, in Kramer v.

Union Free School District No. 15, 395 U.S. 621

26

(1969), the Court held unconstitutional a law

permitting only property owners and parents to vote

in school district elections. The State of Georgia

could not constitutionally require property ownership

as a qualification for a seat on a county board of

education. Turner v. Fouche, 396 U.S. 346 (1970).

In numerous cases, the Court has followed the

principle that a person’s “mere property status

cannot be used by a state to test, qualify, or limit his

rights as a citizen." Edwards v. California, 314 U.S.

160, 184 (1941). Whether paltry or prohibitive,

whether directly or indirectly, any fee imposed by a

state which burdens effective participation in the

political process violates equal protection. Just as

wealth may not be a criterion for the actual exercise

of a right, it should not be a criterion for the receipt

of the notice necessary to exercise the right. In

27

either instance, less affluent citizens are precluded

from free and equally effective participation based

solely on their inability to pay. In following the

principles set forth in Turner, supra., and Harper,

supra., it has been stated:

Limiting at any level the rights of members

of the community to participate in the

political process because of their economic

station in life offends our most basic

understanding of the nature of our

government and society.

Woodward v. City of Deerfield Beach, 538 F.2d 1081,

1083 (Sth Cir. 1976). Any unjustified discrimination

in determining who may participate in political

affairs or in the selection of public officials

undermines the legitimacy of representative

government. Kramer, 395 U.S. at 626.

28

B. The Wisconsin Court Of Appeals Erred In

Refusing To Acknowledge The Impact Of A Fee

Requirement On Fundamental Rights.

The impact of a _ fee system limiting

participation in the political process must be

carefully examined. Bullock, 405 U.S. at 142-3. The

ballot access fee at issue in Bullock, while not

precluding anyone from voting, nonetheless fell with

unequal weight on voters "according to their

economic status" and deprived them of the

opportunity to vote for the candidate of their choice.

Id. at 144. The Wisconsin Court of Appeals, while

recognizing that a state may not impede fundamental

rights because of distinctions based on wealth,

erroneously believed that no fundamentai rights are

contingent on wealth in this matter.

It should be noted that there is no statutory

limit on the amount a newspaper may charge for a

29

single copy or for a subscription. The Wisconsin

statute does not specify what may be charged so long

as the charge is more than zero. Nothing precludes

the publication of notice in a business or law

reporter which is prchibitively expensive for certain

segments of the public.!2 Nonetheless, even a small

sum can have the same effect and is equaliy suspect.

Harper, 383 U.S. at 666, 670.

Such a law can be used to frustrate rights in

ways similar to poil taxes and property-holder

requirements. Its impact is neither remote nor

incidental to the exercise of fundamental political

rights. It falls with unequal weight on voters

according to their economic status. The Wisconsin

Court of Appeals refused to recognize the similarity.

I2such publications are deemed newspapers under Wis.

Stats. $985.03.

30

Instead, it concluded, contrary to the reasoning in

Bullock, that strict scrutiny should not be applied

because no citizen was theoretically prohibited from

voting. It then speculated that a purchased

newspaper is more likely to be read.!4

In this case, however, Blonien’s newspaper is

circulated to 25,000 households in a community of

about 64,000 inhabitants. By contrast, Community’s

newspaper is circulated to only a few thousand

households in this community. Surely, Blonien’s

newspaper, which is distributed to all who want it

without charge, is more "likely to give notice"

‘3 applying the rational basis test, the Court of Appeals

decided, based not on the facts before it but rather on

"common experience’, that a purchased newspaper is more

likely to be read and to contain news of general interest. Yet,

the expressed intent of the statute is to "give notice", not to

restrict notice solely to those who are "more likely" to read it.

31

consistent with that purpose as set forth in Wisconsin

notice law and with constitutional principles.!4

In addition, it should be noted that such a law

is anticompetitive. Blonien is Community’s only

potential competitor for the City’s legal notice

contract.!° (R-39) Thus, rather than serving any

fiscal purpose, the statute thwarts competition by

permitting a municipality no recourse but to publish

in a monopoly newspaper. In these days when it is

important for governmental units to minimize their

costs, the state courts’ ruling has a_ significant

adverse impact on their ability to do so. The effect

of these newspaper eligibility requirements is to limit

14See, Wis. Stats. §985.02(1) infra. at page 4.

IS wis. Stats. $§985.01(5), 985.06 and 985.065 lay out the

various bidding requirements for legal notice printing

contracts. Section 985.06 also requires notice publication in

a newspaper published in the municipality. The Enterprise and

the Star are the only two newspapers which presently are or

claim to be published within the City of West Allis. (R-39)

32

the reach of notice and subsidize one group of

privately-owned newspapers, all at greater expense to

the public.

According to the Wisconsin Court of Appeals,

those who have the discretionary income to buy the

sanctioned newspaper are entitled to receive the vital

information affecting their participation in the affairs

of their local government; those who do not should

search it out at the library. Rather than achieve any

kind of compelling or rational purpose, such a

distinction serves only to frustrate statutory and

public policy objectives with the fiscal consequences

falling on the over-burdened taxpaying public. Such

a distinction inhibits and dilutes the voice of the less-

affluent in their local governance and cries for

review by this Court.

33

CONCLUSION

Because this case presents important

constitutional issues, the petitioners respectfully

request this Court to review the Wisconsin Court of

Appeals’ decision. We respectfully submit that the

Court should review whether it is constitutional for —

a state to force its citizens to pay a fee to a private

entity in order to obtain the notice prerequisite to

their effective participation in local self-government.

Dated this 6th day of September, 1990.

By: Howard Goldberg

Counsel of Record

Margaret Baumgartner

DeWitt, Porter, Huggett,

Schumacher & Morgan, S.C.,

2 East Mifflin Street, Suite 600

Madison, WI 53703

(608)255-8891

Attorneys for J.J. Blonien & Associates,

Inc.

34

Michael Sachen

7525 W. Greenfield Ave.

West Allis, WI 53214

(414) 256-8258

John J. Kast]

1112 South 60th Street

West Allis, WI 53214

(414) 778-1128

Attorneys for City of West Allis