Secret Memo Kills Direct Legislation in Lake Geneva

Citizens of Lake Geneva tried twice to petition the city council with direct legislation and where turned down both times based on a “secret memo” from the city attorney; claiming attorney client privilege.

The first citizen petition/direct legislation was to restore nine handicap parking spaces. A motion to approve the new ordinance by Aldermen Hill and Hougen was voted down 6-2.  Hougen and Mott voted “yes” to approve, Wall,Hill,Kehoe,Kupsik,Krohn and Tolar killed it. Alderperson Hill claimed the petition was administrative matter and thus one of the four exceptions to direct legislation. She does not want to set precedence and have folks directly enact what they feel they should get by the collections of signatures.  Alderman Hougan stated “The law should serve the people, not the people serve the law.”

State Statue 9.20 lists four exceptions that requested direct legislation be either passed or submitted to the electors:

1) when the proposed direct legislation involves executive or administrative matters, rather than legislative ones; 2) when it compels the repeal of an existing ordinance, or compels the passage of an ordinance in clear conflict with existing ordinances; 3) when it seeks to exercise legislative powers not conferred on a municipality; and 4) when it would modify statutory prescribed directives that would bind a municipality if it were attempting to legislate in the same area. Mount Horeb Community Alert v. Village Board of Mt. Horeb, 2002 WI App 80, 252 Wis. 2d 713, 643 N.W.2d 186, 01-2217.

 

In ‘Wisconsin Lawyer’ by the State Bar of Wisconsin cites case-law of these four narrow exceptions:

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.

 At a resent Parking Commission meeting President Marty Smith tried to restore the 9 handicap spaces and was voted down by the other commissioners. This spring the commission removed 9 parking spaces which were designated handicap only. These spaces were regular size parking spaces, not the especially wide spaces for wheel chair accessibility. According to Wisconsin Department of Transportation (DOT) a person who displays a DIS Id permit, DIS plates or VET plates on their vehicle qualifies for free parking in any municipally owned metered stall of one-half hour or more. On 10.16.12 at the Parking Commission the restoration of the 9 spaces will again be on the agenda.

The other petition for direct legislation was for year-round free parking in downtown Lake Geneva for any person who is a resident of the city.

At the council meeting on 10.8.12 Alderman Hougen made a motion to neither approve nor send to electors the direct legislation petition brought before the council. He stated he “Likes direct legislation statures that Wisconsin has… but we also have statures that establish home rule for municipalities in our state. Home rule allows us to set up several divisions within our city government. The executive branch we delegate the administrative powers… These two statues, the legislation or home rule and direct legislation does not know how to judge between the two of which should carry preponderance here. I’m not a judge so I will just pass on the whole thing.”

According to Wis Stat. 9.20 (8)

This section implements legislative powers reserved by the people. Subject to certain conditions, a common council has no authority to make an initial judgment of the constitutionality or validity of proposed direct legislation. State ex rel. Althouse v. Madison, 79 Wis. 2d 97, 255 N.W.2d 449 (1977).

A proposal that is administrative, rather than legislative in character, is not the proper subject of initiative proceedings. State ex rel. Becker v. City of Milwaukee Common Council, 101 Wis. 2d 680, 305 N.W.2d 178 (Ct. App. 1981).

Voting to approve the motion to do nothing was: Hougen, Wall, Mott, Hill, Kehoe, and Kukpsik.        Krohn and Tolar voted “no”.

The citizens of Lake Geneva have only twice got direct legislation past their city council and had the chance to vote on them. The council members at that time were “shocked that anyone would not have trust in their judgment.” Those petitions were based off the unanimous State Supreme Court case of Mount Horeb Cmty., Alert, 2003 WI 100, *4,263 Wis 2d 544. They require voter approval for spending more than $1.05M for any capital project. The last one passed by 76% of the voters and is still law in the City of Lake Geneva.