By Gretchen Schuldt
Milwaukee landlord Youssef Berrada and his company filed an emergency petition Tuesday asking the state Supreme Court to declare unconstitutional a statute the state used to gain access to hundreds of documents it is using in its lawsuit against the company, Berrada Properties Management, Inc.
The petition also asks the court to review an administrative rule voiding rental agreements that contain certain provisions. No statute allows the Department of Agriculture, Trade and Consumer Protection (DATCP) to declare contracts void and unenforceable, the petition alleges. Instead, the agency can only forbid or prescribe unfair and fair trade practices and business competition methods, Berrada said.
The statute in question, §93.15, allows Berrada and his firm, referred to collectively as "Berrada" in the petition, to be criminally punished without judicial review for failing to comply with a DATCP civil investigation demand, the petition alleges.
The law is "facially unconstitutional," Berrada alleges. The state has not yet filed a response.
The statute allows DATCP to demand that business operators "file with the department, at such time and in such manner as the department may direct, sworn or unsworn reports or sworn or unsworn answers in writing to specific questions, as to any matter which the department may investigate."
The third paragraph of the law prohibits failure or refusal to supply the information, making false statements, or, "except through judicial process, resist(ing) or obstruct(ing) any official or subordinate of the department in the exercise of the official's or subordinate's lawful authority."
Each violation of that third paragraph is punishable by a fine of up to $5,000 and one year of incarceration.
The law is unconstitutional because such a "search scheme" must allow the entity or person to be searched to have a precompliance review before a neutral decisionmaker, Berrada said in the petition.
"The law is also unconstitutional because it punishes search recipients for exercising their constitutional right to refuse warrantless, unreasonable searches," Berrada attorneys Ryan Walsh, Amy Miller, and Delanie Breuer wrote in the petition.
The state also needs to meet requirements for a warrant and probable cause because "the demands sought information to serve as evidence in an investigation of penal laws — which carry penalties of civil forfeitures, criminal fines, and imprisonment," the petition said.
"Because Berrada responded to these demands only on pain of criminal punishment, his statements were involuntary and cannot be used against him under the Fifth Amendment and Wisconsin Constitution," the petition said.
The state Department of Justice filed suit against Berrada in November 2021, alleging that he and his companies violated Wisconsin landlord-tenant law in numerous ways, including illegal provisions in leases, illegally charging tenants late-rent fees and court fees, and engaging in illegal security deposit deduction practices. Berrada and his firm also used illegal practices while remodeling occupied buildings, the suit said. Those practices, according to the complaint, included forcing tenants out of their apartments, throwing away their property, and entering apartments without proper notice.
The DOJ said at the time that Berrada owned more than 170 limited liability companies that owned a total of more than 8,000 apartment units in the state.
The suit, filed in Milwaukee County Circuit Court, relied heavily on information gathered through the civil investigation demands, the petition says.
"The State is now using the circuit court’s authority, through the civil discovery processes, to obtain potentially hundreds of thousands of documents from Berrada, all of which are tainted by the unlawful" civil investigation demands, the attorneys wrote.
Milwaukee County Circuit Judge Pedro Colon erred when he compelled Berrada to turn over "tainted evidence," the petition said.
"This is a manifest error of law — a court's process cannot be used to further a constitutional violation," the petition says.
Colon has indicated he will order Berrada "to turn over potentially millions of pages of tainted evidence in 30 days," the petition said.
"Berrada suffers irreparable harm every day, as Berrada is now forced to expend resources and turn over more and more private documents and respond to demands for additional information — all of which is fruit of the poisonous tree that the State is forbidden from using against Berrada."
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