Village of Mishicot v. Arseneau (Fourteenth Amendment – Selective Prosecution)

In Village of Mishicot v. Arseneau (2019AP541), the Court of Appeals District II found that the village did not violate its resident’s Fourteenth Amendment rights by selectively prosecuting her for violation of a floodplain ordinance.

Defendant Jodi Arseneau wanted to repair and expand a storage shed on her property, but the state Department of Natural Resources (DNR) and a village ordinance prohibited such structures in the floodway where Arseneau’s property was located. Arseneau started construction on the shed anyway.

The village sent Arseneau a letter notifying her of her violation of the village’s floodplain ordinance and ordering her to stop construction. Soon after, DNR sent a letter to the village ordering the village to enforce the floodplain ordinance. If the village did not submit a sufficient enforcement plan, the letter stated, DNR would inform the Federal Emergency Management Agency, which could affect the village’s status in the National Flood Insurance Program (NFIP).

Subsequently, Arseneau was cited for violation of the ordinance. The circuit court found that the village violated Arseneau’s Fourteenth Amendment’s Equal Protection Clause by selectively prosecuting her case. The circuit court agreed with Arseneau that the village did not cite other residents with similar storage units in the floodplain. The village appealed.

To succeed in a selective prosecution claim, the defendant must show the prosecution had a discriminatory effect and a discriminatory purpose. The appeals court found the prosecution against Arseneau did not have a discriminatory effect because she and the other residents who were not prosecuted were not similarly situated. Other residents had worked with the village after receiving initial warnings, and Arseneau’s case was unique in that the village received notice from DNR that nonenforcement could affect the village’s NFIP status. The court also found that Arseneau failed to prove her prosecution had a discriminatory purpose. Therefore, the village’s citation was upheld.