Wisconsin
Lawyer
Vol. 81, No. 5, May
2008
Vox Populi: Wisconsin's Direct Legislation Statute
Wisconsin's Direct Legislation
Statute, section 9.20, gives voters a
direct voice in local matters and provides a procedure by which voters
may compel
local government to pass or put before the public for a popular vote a
proposed ordinance or resolution. Here's how it works.
by Donald Leo Bach
o you ever feel that your local city
council or village board is tone deaf
on an issue or so hopelessly divided that it can't or won't do what
needs to
be done, or that the city council or village board just does not want to
take
on an important matter? Nothing much can be done except wait for the
next
election, right? To the contrary, the statutes provide a potential
avenue for
relief: direct legislation by the electorate.
ForFor almost a century, Wis. Stat. section 9.20 and its
predecessors have
provided Wisconsin voters direct democracy at the local
level.1 The statute provides a procedure by
which voters may
compel a city common council or a
village board to pass a proposed ordinance or resolution or put the
proposed
ordinance or resolution before the public for a popular
vote.2
The Statute
In substantive part, Wis. Stat. section 9.20 provides that:
• A number of electors in a city or village equal to at
least 15 percent
of the votes cast for governor at the last general election in the city
or
village may sign and file a petition with the city or village clerk
requesting that
an attached proposed ordinance or resolution, without alteration, either
be
adopted by the common council or village board or be referred to a vote
of the
electors.
• The common council or village board shall, without
altering the
ordinance or resolution, either pass it within 30 days following the
date of the
clerk's final certificate, or submit it to the electors at the next
spring or
general election, "if the election is more than six weeks after the
date of the
council's or board's action on the petition or the expiration of the
30-day
period, whichever first occurs."3 If
there are six weeks
or less before the
election, the ordinance or resolution shall be voted on at the next
election
thereafter. The council or board may, by a three-fourths vote, order a
special election
to vote on the ordinance or resolution at any time before the next
election,
but not more than one special election for direct legislation may be
ordered in
any six-month period.
• If a majority of electors vote in favor of adoption, the
proposed
ordinance or resolution shall take effect on publication, which must be
made within
10 days after the election.
In a nutshell, Wis. Stat. section 9.20 "permits local
electors to submit
a petition requesting that an attached proposed ordinance either be
adopted
by the municipality's governing body without alteration or be referred
to a
vote in the next election."4
The direct legislative powers of the people "are often
exercised when
the electorate believes that their elected representatives are not
acting in
response to the public's will."5
Indeed, the Wisconsin
Supreme Court has
noted that direct legislation is an important and powerful right
reserved to the
people:
"Direct legislation is a potentially powerful limitation on
governmental authority,
a remedy available to the people when their representative government
has become
unresponsive or misrepresentative."6
Scope of the Statute
The scope of Wis. Stat. section 9.20 is very broad:
"While it is asserted that Wisconsin is a jurisdiction
which limits the scope of
direct legislation, our examination of the Wisconsin cases convinces us
that Wisconsin
law permits the electors under the direct legislation statue to compel a
common council
to enact or to place on the ballot any proposed ordinance which the
common council in
its legislative capacity could enact."7
Common Council or Village Board Limited Options
When a petition for direct legislation is filed, Wis. Stat. section
9.20(4) gives
the common council or village board 30 days to take one of two options:
either adopt
the measure or refer it for a vote of the electors.
In State ex rel. Althouse v. City of
Madison, the Wisconsin Supreme Court stated
that this duty is mandatory, ministerial, and nondiscretionary:
"[I]t is apparent that the common council's duty, as set
forth in sec.
9.20(4), Stats., is unequivocally of a mandatory, ministerial,
nondiscretionary nature. That
section gives the council only the alternative of passing the ordinance
within thirty
days after the clerk's certification or of submitting it to the electors
at the next
election. The duty on its face is positive, plain, and unequivocal. The
petitioner, under the
statute, has a clear and specific legal right to have the ordinance
either passed or
placed on the ballot."8
Further, section 9.20 recognizes the need for, and mandates,
promptness. It directs the city or village clerk to examine the
petition for an ordinance or resolution
within 15 days and if found sufficient and in proper form, forward it to
the city council
or village board "immediately."9
The Wisconsin Court of Appeals has reiterated that a common
council or a village
board has an unambiguous duty to act promptly when presented with direct
legislation. In
ruling that Wisconsin's notice of claim statute did not apply to a
mandamus action
compelling the city of Oak Creek to take action under Wis. Stat. section
9.20, the court of
appeals stated:
"… [T]he legislature did not want proposed
direct-legislation to languish _ the
common council either has to adopt the proposed ordinance or promptly
submit it to the
voters. Interposing the Wis. Stat. section 893.80(1)(b) notice-of-claim
process could add as
much as two-hundred and forty days to the Wis. Stat. section 9.20
statutory scheme.
See Little Sissabagama Lake. The legislature has unambiguously
told municipalities what they must
do and how fast they must act when presented with a direct-legislation
petition. We
agree with the Committee and Verhalen that section 893.80(1)(b) may not
be interposed to
extend those time limits."10
Finally, city ordinances or resolutions adopted under Wis. Stat.
section 9.20
cannot be vetoed by the mayor, nor can city or village ordinances or
resolutions adopted
under the statute be repealed or amended within two years of adoption
unless by subsequent
vote of the electors.11
The Narrow Exceptions
Petitions for direct legislation are qualified only by four narrow
limitations that
the Wisconsin Supreme Court has declared "are implicit in the
statute."12 Those limitations provide
that direct
legislation 1) must be legislative in nature; 2) cannot repeal
an existing ordinance; 3) cannot exceed the powers of the municipal
governing body
itself; and 4) cannot modify statutorily prescribed
procedures.13
However, these limitations are to be narrowly construed:
"These limitations preserve municipal control over
executive and administrative
functions and protect the integrity of the statutory framework governing
municipalities, while at the same time permit the proper invocation by
electors of the direct
legislation procedure provided by the statute. The limitations, implicit
in the statute itself,
are narrowly construed and carefully applied so as to avoid judicial
dilution of the
statutory initiative right."14
1) Legislative in Nature. In Mount Horeb Community
Alert, the Wisconsin Supreme Court upheld a proposed
ordinance that required a public vote on all improvement
expenditures of more than $1 million. The ordinance was challenged as
not being legislative
in nature. In rejecting this challenge, the Wisconsin Supreme Court
reiterated the test
to differentiate between legislative and administrative proposals:
"The test of what is a legislative and what is an
administrative proposition,
with respect to the initiative or referendum, has further been said to
be whether the
proposition is one to make new law or to execute law already in
existence. Again, it has
been said: `The power to be exercised is legislative in its nature if it
prescribes a
new policy or plan; whereas, it is administrative in its nature if it
merely pursues a
plan already adopted by the legislative body itself, or some power
superior to
it.'"15
"We also noted in Heider that `action relating to subjects
of permanent and
general character are usually regarded as legislative, and those
providing for subjects of
temporary and special character are regarded as
administrative.'"16
The court held that the ordinance was legislative because it
applied to all new
construction projects costing more than $1 million, set forth a
permanent rule until
repealed, and created new policy.17
2) Not Repeal Any Existing Local
Ordinance. Direct legislation cannot repeal
any existing ordinance.18 For example, in
Landt v. City of Wisconsin
Dells,19 the supreme court held that a
proposed ordinance
that would have prohibited the fluoridation of
the public water supply, after the common council had already adopted an
increase in
the water supply's fluoride content, was invalid because it repealed an
existing
ordinance.20
3) Not Exceed the Powers Held By the Common Council.
Direct legislation cannot exceed powers held by the municipal
body.21 "Electors cannot do through
direct
legislation what the municipal governing body cannot do in its own
right. That is, direct
legislation cannot exceed or enlarge the powers conferred upon the
municipal governing body
by state law."22
In Heitman, voters sought the passage of direct
legislation that would preclude
the city of Mauston from allowing a treatment facility for sexually
violent persons to
be located within city lands. In affirming the circuit court's grant of
summary
judgment dismissing the voters' mandamus action, the court of appeals
held:
"We conclude that Heitman is attempting to do by initiative
what the Common
Council, itself, cannot do; i.e., avoid the substantive and
procedural safeguards established
in section 62.23, Stats. Because initiatives may be used for only those
legislative
acts which a municipality, itself, could do, Heitman's proposal is not
one that can be
accomplished by initiative. Accordingly, we conclude Mauston reached the
correct decision
in refusing to adopt or to submit the initiative to the electorate, and
we affirm the
judgment of the circuit court dismissing Heitman's action for a writ of
mandamus and
for injunctive relief…."23
"Because we conclude that the proposed initiative is either
a zoning ordinance or
an amendment to the zoning ordinances of Mauston and that zoning and
amendments to
zoning may be accomplished only in compliance with the procedures
established in section
62.23, Stats., and not by initiative, which does not utilize those
safeguards for
individual landowners' rights established by the legislature, we affirm
the judgment of the
circuit court dismissing the action."24
4) Not Modify Statutorily-Prescribed Procedures or
Standards. Finally, direct legislation "may not
modify statutorily-prescribed procedures or standards that would bind
the common council
or village board if it attempted to legislate in the same
area."25
In Mount Horeb Community Alert, as previously indicated,
citizens filed a petition
for direct legislation that would have required the village board to
submit each
construction project costing at least $1 million to a binding referendum
before beginning
construction on the project.26 However, the
village refused
to pass the direct legislation,
contending that the subject matter of the petition was invalid because,
among other things, it
would conflict with the statutory procedures with respect to bonding and
bidding,
including those in Wis. Stat. chapter
67.27 The court rejected this claim,
finding the
referendum would not interfere with the statutory procedures governing
bond
issues.28 The court noted that nothing in
chapter 67 would
specifically prohibit a referendum of the
sort required by the proposed ordinance. Thus, the court held that there
was nothing
unlawful in the proposed legislation, even with respect to a binding
referendum.
Mandamus and Injunctive Relief
When a municipality fails to carry out its mandatory duties under
Wis. Stat.
section 9.20, mandamus is the proper remedy:
"Mandamus is the proper means to challenge a municipality's
failure to comply with
the requirements of the direct legislation
statute."29
Petitioners are entitled to request temporary relief to preserve
their rights
pending a decision on the mandamus action. Wis. Stat. section 781.02
provides that "[a]
plaintiff in an action or proceeding seeking an extraordinary remedy may
request, by motion,
temporary relief pending disposition of the action or proceeding."
Temporary relief is
appropriate when, among other circumstances, "during the litigation
it shall appear that
a party is doing or threatens or is about to do … some act to be
done in violation of
the rights of another party and tending to render the judgment
ineffectual…."30
Conclusion
Wisconsin's direct legislation statute provides an important check on
local
government when it fails to respond to or represent the public's will.
The courts rightly have
construed the statute broadly, and its exceptions narrowly, in favor of
the public to
avoid diluting the electorate's legislatively bestowed right to a direct
voice in local
matters that concern them.
Endnotes
Wisconsin
Lawyer
