The LaCrosse Tribune on 16 September, 2006, ran an article describing how the Town of Arcadia, Wisconsin, caved in before financial threats from the ACLU. The Mayor had proposed five ordinances, which the City Council seemed likely to approve. They would have: informed federal authorities about complaints of illegal workers, made English the official language, forbade the display of flags of other nations unless accompanied by the US flag, and required that all signs and City documents be printed in English.
The City Attorney then advised the Council and the Mayor that, “”It is our opinion, in looking at precedent, that if the mayor’s proposals are enacted, the city of Arcadia will be involved in litigation.” He described both the facts and the potential costs of the ACLU suit against Hazleton, Pennsylvania, when it passed similar statutes for the welfare of its residents.
The Mayor and City Council then backed away from passing any of these statutes, for fear of the harassment and costs of the expected ACLU suits against them. Especially against small governments and small school boards, implied ACLU threats to cost the cities and school boards hundreds of thousands in fees for their own attorneys, and court-ordered fees to the ACLU, has been an effective tactic.
The City Attorney for Arcadia was not, however, thinking clearly. There are two ways that Arcadia could have acted on some or all of these proposals, with no danger of ACLU-sponsored financial damage. First, the City Council could pass a Resolution, stating that it favored and intended to pass some or all of these Ordinances. A Resolution is not an Ordinance – it is just a statement of opinion. As such, no court has any jurisdiction to strike it down.
Second, the City Council could pass any of these ordinances with an effective date of “30 days after the US Supreme Court decides the ACLU challenge to the Hazleton ordinances.” Again, the ACLU would be thrown out of court and should be assessed fees and costs against it, if it filed suit now against that action by Arcadia. That’s because no law is ripe for judicial review until it is in place as a law, not merely a proposed law.
It is unfortunate when attorneys for small governments or school boards turn tail and head for the hills when a financial threat by the ACLU rears its ugly head. With a little thought, they can turn the tables against the ACLU, and have them thrown out of court, and assessed fees and costs.
The facts of this matter, though not the legal conclusions, come from this article: