Federal judge grants extension to Bangstad attorney in lawsuit

A federal judge last week granted yet another extension to the attorney representing Minocqua Brewing Company owner Kirk Bangstad — this time citing “compassion” — even as the court made clear that repeated delays and admitted deficiencies had fallen short of the legal standard required for such relief.

The ruling marks the fourth request for additional time filed by Bangstad’s attorney, Frederick Melms (no association with Melms, Hogan & Francois law firm), in Bangstad’s and Minocqua Brewing Company’s (MBC) First Amendment lawsuit against members of the Oneida County Planning and Development Committee.

In the case, Bangstad claims that county officials unlawfully retaliated against him and MBC for protected speech by revoking his conditional use permit and later denying a similar application. In recent weeks, however, as the defendants have moved for dismissal, attention has shifted to the procedural handling of the case, particularly Melms’s repeated inability to meet court deadlines.

Specifically, defendants Daniel Hess, Mitchell Ives, Scott Holewinski, Billy Fried, and Robert Almekinder have moved for summary judgment, contending that the committee’s actions were based on Bangstad’s repeated violations of his permit and on his subsequent operation without a permit.

After the defendants filed their motion on March 5, Melms has struggled to meet the response deadline. The current deadline was April 6, and, as the deadline loomed, Melms came knocking at the judge’s door again, asking for more time in back-to-back motions and citing the receipt of 8,000 pages of discovery needing to be examined — documents Bangstad and his team had demanded.

Melms wrote to the court that he was overworked and in over his head.

“Plaintiff’s counsel has a greater workload than he can handle, and has recently come to terms with the fact that he can’t handle federal civil rights litigation,” Melms wrote to the judge in his plea for an extension.

In a sharply worded but ultimately accommodating order, U.S. magistrate judge Anita Marie Boor acknowledged both the shortcomings of plaintiffs’ counsel and the unusual step the court was taking in granting additional time.

“The court has already extended this deadline twice, explaining that it does so only for good cause, and the standard becomes more stringent with each additional request,” Boor wrote. “For these most recent requests, counsel for plaintiffs explains he is overwhelmed. The court is not without sympathy, but ultimately the court cannot allow poor planning and bad time management to upend what was a carefully planned case schedule.”

Boor said such extensions were not fair to the opposing party or to the court to reset the same deadline again and again. 

“That said, justice is best served when all sides are able to present their case in a cohesive manner,” she wrote in her text-only order. “Based on the instant motions, the court is not confident that any submissions filed by plaintiffs today would fit that description. So, while plaintiffs have not met the good cause standard for an extension, the court will reset the deadline out of a sense of compassion and will allow four additional days, in the hope that plaintiffs will use this additional time to prepare submissions that will be more intelligible to defendants and more usable by the court.”

The court will summarily deny any subsequent motions to extend the deadline, Boor wrote.

On April 10, Melms did meet the deadline, filing a proposed finding of facts in support of Bangstad and MBC’s opposition to plaintiffs’ motion for summary judgment.

A pattern of delays

In his motion for an extension, Melms cited a range of challenges, both personal and operational, that he said caused the delays.

For one thing, Melms depicted Vilas County’s legal landscape as barren of attorneys and lacking in modern technology.

“Plaintiff’s counsel runs a small law firm in northern Wisconsin with only two attorneys,” Melms wrote. “It is one of only two firms in Vilas County, and the only attorney at the other firm doesn’t use a computer. We provide representation in too many practice areas for too many clients out of necessity. It is just the nature of a rural practice.” 

And those thousands of discovery documents he had requested were just the tip of the iceberg when it came to his workload, Melms asserted.

“Plaintiffs’ counsel has received approximately 8000 pages of discovery from defendants and has several thousand additional pages of documents from related matters,” he said. “Plaintiffs’ counsel hired additional support staff last week, but they proved too inexperienced to assist with discovery review for this case. I learned yesterday that she had only organized the written discovery answers and never even downloaded the documents defendants provided in response to plaintiffs’ requests for production.”

To make matters worse, Melms said he wasn’t good at supervision.

“I don’t have a lot of experience supervising staff, but I failed to adequately supervise her,” he wrote.

Still, Melms assured Boor, he was working hard.

“Plaintiffs’ counsel works 70-80 hours a week, but it’s never enough,” he wrote.

Melms reiterated that he was not the original counsel because of his doubts about being able to adequately represent his client.

“Plaintiffs’ counsel was not the original counsel on this matter because he didn’t believe he would be able to handle this case,” he wrote. “Unfortunately, the relationship between plaintiffs and their prior counsel broke down, and prior counsel, who was from a larger firm with associates and experienced support staff, withdrew. Plaintiffs’ counsel has a long-standing relationship with plaintiff and was forced to step in.”

The bottom line was, Melms indicated it was all too much.

“Plaintiff’s counsel has a greater workload than he can handle, and has recently come to terms with the fact that he can’t handle federal civil rights litigation,” he wrote. “Plaintiffs’ counsel began working on the opposition last week and worked through the night last night, but he still needs additional time to finalize the opposition.”

Underlying claim face steep hurdles

Bangstad’s lawsuit rests on a single claim that county officials retaliated against him for exercising his First Amendment rights. The complaint alleges that Bangstad’s criticism of local officials on social media and elsewhere prompted the revocation of his permit and the denial of a subsequent application. In their memorandum in support of the motion for summary judgment, the defendants argue that the case fails on both factual and legal grounds, pointing to what they describe as a clear record of Bangstad’s and MBC’s repeated permit violations.

According to the memorandum, the zoning committee revoked the conditional use permit in July 2024 and later denied a new application in June 2025 based on those violations, not in response to Bangstad’s speech or political activity.

“Defendants, the current members of the Oneida County Planning and Development Committee did not violate the constitutional rights of plaintiffs, Minocqua Brewing Company LLC and Kirk Bangstad either when the committee voted to revoke plaintiffs’ conditional use permit after they engaged in a long-term pattern of violating the permit or when the committee subsequently declined to issue a new permit to plaintiffs while they continued to operate without a permit and in violation of the county’s zoning ordinance,” the memorandum by attorney Andrew Jones stated. 

Indeed, the memorandum continued, plaintiffs never disputed that they repeatedly violated the conditional use permit granted them by the committee, which allowed them to operate a craft brewery retail outlet and beer garden, or that they ignored the committee’s decision to suspend the permit as it related to the beer garden in light of the permit violations.

In addition, Jones wrote, plaintiffs never disputed that they continued to operate without a permit and in violation of the zoning ordinance once the committee revoked the permit. 

“Plaintiffs’ undisputed violations of their conditional use permit and the zoning ordinance provided a legitimate, non-retaliatory basis for the committee to revoke the permit and to deny a second, identical permit to plaintiffs,” the memorandum states. 

The motion also relies heavily on prior rulings in the case, including a decision by the U.S. Court of Appeals for the Seventh Circuit that denied Bangstad’s request for a preliminary injunction.

“As the Seventh Circuit concluded in rejecting plaintiffs’ appeal from this court’s decision denying them a preliminary injunction, ‘[a]ny reasonable permit-issuing body would revoke or deny permits under those circumstances,’” the memorandum states.

That finding, Jones argued, undercuts the central claim of First Amendment retaliation.

“Regardless, the record is clear that the permit would have been revoked and the new permit denied even in the absence of any protected speech,” he wrote in the memorandum. “And, given the committee’s legitimate, non-discriminatory basis for its decisions, there likewise is no evidence to support a reasonable inference that the committee’s reasoning was pretext for unlawful retaliation.”

For those reasons, Jones wrote, Bangstad could not sustain his sole claim of First Amendment retaliation on its merits. 

“Defendants are entitled to qualified immunity in any event, particularly in light of the Seventh Circuit’s conclusion that any reasonable permitting body in the same circumstances as the committee would have revoked plaintiffs’ permit and denied them a new one,” he wrote. “Defendants thus are entitled to summary judgment and the dismissal of plaintiffs’ complaint in its entirety.”

In the end, the memorandum asserts, the undisputed record shows that defendants did nothing more than hold plaintiffs to the conditions of their permit and the generally-applicable requirements of the zoning ordinance.

“Revocation of a conditional use permit is assumed when a permit holder fails to comply with the conditions of the permit,” Jones wrote. “In turn, First Amendment protected activities do not allow a plaintiff to ‘claim special protection from governmental regulations of general applicability.’ Indeed, after examining the underlying facts in considering plaintiffs’ appeal from this court’s refusal to grant them a preliminary injunction, the Seventh Circuit pointedly observed that ‘[a]ny reasonable permit-issuing body would revoke or deny permits under those circumstances. There can be no First Amendment retaliation if the adverse action would have occurred even in the absence of the protected speech.’” 

The same conclusion — fatal to plaintiffs’ First Amendment claim — is equally warranted at this stage of the litigation, the memorandum concluded.

Under the court’s original schedule, plaintiffs’ response was due March 26. That deadline was extended twice before expiring again on April 6, when Melms filed yet another request and was given until April 10.

In his proposed finding of facts, Melms reiterated allegations that the zoning committee had discriminated against Bangstad, including holding him to stricter parking requirements and that he was the only tenant at a Front Street location required to have an administrative review permit.

“[The attorney] requested copies of the administrative review permits from the prior tenants at 317 Front Street,” Melms wrote. “Oneida County had no record of prior tenants receiving an administrative review permit before operating at 317 Front Street, even though more than 10 businesses had operated out of that location in the approximately 30 years preceding the period relevant to this complaint.”

All the while, committee officials failed to stop the improper prosecution of a Bangstad, Melms wrote.

“Defendant Holewinski was aware that the town was illegally enforcing county zoning ordinances against Bangstad, and did nothing,” he wrote in his response. 

Melms also elected that the committee members were well aware of Bangstad’s criticism of them, and retaliated accordingly.

“Bangstad criticized defendants,” he wrote. “Defendants were aware Bangstad was critical of them … Bangstad would use Facebook to criticize defendants and Oneida County officials. Defendant Holewinski would share Bangstad’s emails with Gregg Walker, owner of the Lakeland Times and the Northwoods River News, two newspapers operating in Oneida County. Former Oneida County Supervisor Anthony Rio overheard Scott Holewinski explaining that the county should ‘hit’ plaintiffs when they were open.”

The CUP denial was in retaliation for Bangstad’s First Amendment activities, Melms concluded.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.