Monona repeals chronic nuisance ordinance after complaint from ACLU over domestic abuse victim

In a Nov. 10 letter to the city’s mayor, police chief and City Council, the ACLU’s Wisconsin chapter threatened to sue because a Monona police officer in September emailed the owner of a home the female victim was renting to say the landlord was “potentially one call away” from being in violation of the city’s 14-year-old chronic nuisance ordinance because of repeated calls to police about the woman’s abusive, now-estranged husband.

Chronic nuisance ordinances, common across the United States, allow cities to take enforcement action, including charging extra for city services, against owners of properties who see repeated calls to police or allow their properties to fall into disrepair.

On Nov. 21, after meeting in closed session about the matter, the City Council voted unanimously in favor of a measure to rescind the ordinance.

“It has been brought to the attention of the City Council that this ordinance ... may discourage victims of crime or those in need of police services from requesting those services in fear of penalties which could be levied if declared a chronic nuisance,” the measure says, and “City staff and the Police Chief believe sufficient tools exist to address such concerns without this ordinance.”

Monona Police Chief Brian Chaney said last week that the officer involved made an attempt to “help resolve repeated complaints made by neighbors regarding ongoing noise and other disturbances at the address” on Gateway Green where the woman lives, and that the city never acted to declare the home a chronic nuisance.

The woman’s husband, Orion S. Kiesch, 45, pleaded no contest in July to a disorderly conduct ordinance violation, with a domestic abuse enhancer, and was ordered to pay $300.50. On Oct. 12, he was charged with misdemeanor disorderly conduct, again with a domestic abuse enhancer. That case is pending.

Repeated calls

The ACLU says in its letter that the woman and Kiesch began renting the Gateway Green home in May 2021 with their child and “since then, (the woman) has contacted Monona police several times for protection from her abusive husband, and Monona police therefore knew that (she) is the victim of domestic violence.”

The Oct. 12 misdemeanor charge against Kiesch stems from an incident in September in which “Kiesch attempted to strangle (the woman) by putting his knee on her neck,” the letter says.

Kiesch’s address in court records continues to be the home on Gateway Green, but the ACLU and the home’s owner, Jeff Smith, said he no longer lives there. The ACLU said the woman intended to stay in the home but Smith said she’d agreed to move out by the end of November. He never filed formal eviction proceedings against her, he said.

Smith provided a photo of a Monona police list of 13 calls to the residence dating back to March. He acknowledged that being told his property could be declared a chronic nuisance was a factor in telling the woman in August that she needed to leave.

The couple paid rent on time and kept the house in good condition, and it was only this past fall that he was made aware of all the calls to police, he said, although he said neighbors had complained to him about the couple’s fighting.

He said there were also allegations of drug use at the property and described his reasons for asking the woman to leave as being “as much an all-of-the-above” as the warning about the ordinance violation.

The ACLU’s letter argues the city’s chronic nuisance ordinance violates the First Amendment right of citizens to petition government for redress of grievances, parts of state and federal fair housing law, and the federal Violence Against Women Act.

Chaney said he was “confident” that the officer who sent the email to Smith “did not have any intent to inhibit the residents’ right” but that he understood “how making reference to the chronic nuisance ordinance has the potential to be utilized and/or interpreted by parties in a manner otherwise intended.”

In response to the ACLU’s letter, he sent an email to officers on Nov. 11 saying that, effective immediately, police commanders were to be informed of cases like the one involving the woman on Gateway Green and that officers handling them were to “refrain from giving warning to tenants or landlords regarding formal action/litigation available to” police and from bringing up the possibility of eviction.

Madison’s ordinance

Other communities around Madison with chronic nuisance ordinances on the books reported that, as in Monona, they are rarely used.

Chaney said Monona has no record of its ordinance being used in the past, while Middleton said it appeared its ordinance had been used only once, against a bar and dance club about 10 years ago. Sun Prairie had no record that its ordinance had been used recently.

Dane County’s largest municipality, Madison, makes use of its chronic nuisance ordinance more regularly and has been contacted about it in the past by the ACLU, Assistant City Attorney Jennifer Zilavy said.

She said the city uses it a “handful of times each year,” including four times in 2021, but that city officials try to work with property owners before their properties get so bad that they risk being declared chronic nuisances.

In 2016, the ACLU raised concerns about the city’s use of a state law aimed at cracking down on properties used in the illegal drug trade, Zilavy said, but was “pleased” that the city emphasized the importance of complying with fair housing laws in the use of its chronic nuisance ordinance.

She said that in response to the group’s concerns, it changed some of the language in notices sent out under the chronic nuisance ordinance to better match language about fair housing laws.

The ACLU also “raised a concern that our nuisance enforcement had a disproportionate impact on neighborhoods where people of color live, and a concern that we used police calls for service to determine nuisance action without considering whether the call was made by a victim,” she said, and specifically that “calls for service measure chills a landlord and/or tenant from reaching out to government for police assistance.”

Zilavy said the city doesn’t consider domestic violence-related calls when considering a chronic nuisance declaration.

“It is true that a large number of calls for service to a property will prompt police attention and review,” she said. “However, the calls are evaluated for patterns, concerns and substance” and if the Police Department “believes a property is trending in the wrong direction, we reach out to property owners and work with them to resolve issues with the goal of abating the nuisance activity, and avoiding a chronic nuisance premises declaration.”

Other tools

In a statement, the ACLU of Wisconsin said it has not taken action against other Dane County municipalities for their chronic nuisance ordinances “but are concerned there are other similar ordinances in operation.”

The group also denied that getting rid of such ordinances risks hurting the people who live in nuisance properties by taking away one of the tools authorities have to force their cleanup.

Research has found that owners of nuisance properties “took steps to discourage tenants from calling 911,” the group said, and cities have many “legitimate tools for addressing properties that need repairs and present hazardous physical conditions.”

In Monona, Chaney said the city will continue to work with owners of problem properties to reduce crime and improve maintenance, and can also use disorderly conduct, noise and code-violation ordinances to try to gain compliance. Landlords who don’t comply can eventually be arrested, he said.

The city can also rely on state laws targeting properties used in drug or other criminal activity, he said.