Amish Contempt Citation Upheld; Free Exercise Issue Avoided

A Wisconsin state appeals court this week, avoiding the free exercise issue that appellants attempted to raise, upheld the contempt judgment against members of an Old Order Amish family who failed to obtain building and sanitary permits for their residence.  In In re the Contempt in: Eau Claire County v. Borntreger, (WI App., Jan. 5, 2016), the court held that the state constitutional issue that the Borntregers want to raise was not the subject of the contempt decision under appeal, but of the earlier grant of summary judgment to the county which the Borntregers failed to appeal. The court explained appellants' contentions:

The Borntregers argued their decision not to pursue building and sanitary permits was protected by article I, section 18 of the Wisconsin Constitution. The Borntregers subsequently filed a motion to dismiss on this ground, asserting the “county ordinance and the state statutes [the County] relies upon violate the defendants’ freedom of worship and liberty of conscience.” The Borntregers argued they would not sign any application, including those for building or sanitary permits, “that states they will adhere to building codes or adhere to all applicable codes, laws, statutes and ordinances.” The Borntregers reasoned that signing such a form would constitute a false statement because they had no intent to comply, and the making of false statements is prohibited by their religion.

However the trial court rejected their claim, concluding that the Borntregars' beliefs were not burdened by the application process.  The applications merely contained an acknowledgement that the proposed construction is "subject to" applicable codes. The court said that signing this merely confirms the applicant's awareness of the rules, and is not a promise to comply.

Meanwhile the Eau Claire Leader-Telegram yesterday reported that the Borntregars, as well as 20 other Old Order Amish families, have now obtained building permits after the Wisconsin legislature changed the applicable law. The state now allows Amish not to install smoke and carbon monoxide detectors, and to have simple plumbing.  However they still need permits for items like foundations, structure and entrances, and the Amish are willing to obtain these.