MOUNT HOREB COMMUNITY ALERT v. VILLAGE BD. No. 01-2217.
263 Wis.2d 544 (2003)
2003 WI 100
665 N.W.2d 229
MOUNT HOREB COMMUNITY ALERT, Judy Patenaude, Laura Wenman, Audrey Yapp and Wayne Yapp, Plaintiffs-Appellants, v. VILLAGE BOARD OF MT. HOREB, Defendant-Respondent-Petitioner.
Supreme Court of Wisconsin.
Decided July 8, 2003.
For the defendant-respondent-petitioner there were briefs by Richard C. Yde, Angela A. James, and Stafford Rosenbaum LLP, Madison, and oral argument by Richard C. Yde.
For plaintiffs-appellants there was a brief by
Christopher J. Blythe and Lawton & Cates, S.C., Madison, and oral argument by Christopher J. Blythe.
An amicus curiae brief was filed by
Daniel M. Olson, Madison, on behalf of the League of Wisconsin Municipalities.
¶ 1. DIANE S. SYKES, J.
This is a mandamus action to compel a village board to act on an initiative petition pursuant to the direct legislation statute, Wis. Stat. § 9.20 (1999-2000).
¶ 3. Upon presentation and clerical certification of the direct legislation petition, the Mount Horeb Village Board neither adopted the proposed ordinance nor referred it for a vote. The citizens' group sought a writ of mandamus to compel action on the petition under Wis. Stat. § 9.20. The circuit court denied the writ, concluding that the proposed ordinance was not a proper subject of direct legislation. The court of appeals reversed.
¶ 4. Direct legislation in cities and villages pursuant to Wis. Stat. § 9.20 is qualified only by four narrow limitations which this court has declared are implicit in the statute. Direct legislation under Wis. Stat. § 9.20 must be legislative in nature, cannot repeal an existing ordinance, cannot exceed the powers of the municipal governing body itself, and cannot modify statutorily prescribed procedures. Because the proposed ordinance at issue here is legislative in nature, does not repeal any existing ordinance, falls within the powers of the village board, and does not modify statutory procedures, it is fully consistent with the direct legislation statute, and the Village Board was therefore required to act upon it
I. FACTS & PROCEDURAL HISTORY
¶ 5. On December 11, 2000, a group of Mount Horeb citizens, Judy Patenaude, Laura Wenman, and Audrey and Wayne Yapp, on behalf of a citizens' organization known as Mount Horeb Community Alert ("Community Alert"), filed a petition for direct legislation with the Mount Horeb village clerk pursuant to Wis. Stat. § 9.20. Community Alert's petition sought adoption of a proposed ordinance that would require any construction project costing $1 million or more to be submitted to a binding referendum. The proposed ordinance is as follows:
¶ 6. After correcting some technical errors in the form of the petition, the village clerk certified and forwarded the petition to the Village Board. The Village Board took up the matter on January 16, 2001, and
¶ 7. Rebuffed by the Village Board, Community Alert petitioned the Dane County Circuit Court for a writ of mandamus to compel action on the direct legislation petition. The circuit court, the Honorable Richard J. Calloway, denied the writ, concluding that the proposed ordinance would impermissibly modify the statutorily prescribed procedures for borrowing funds for municipal expenditures. Community Alert appealed, and the court of appeals reversed. Mount Horeb Community Alert v. Village Board of Mount Horeb, 2002 WI App 80, ¶ 26, 252 Wis.2d 713, 643 N.W.2d 186.
¶ 8. The court of appeals rejected the Village Board's claims that the proposed ordinance would modify statutory borrowing procedures. Id., ¶¶ 10-16. The court also concluded that Community Alert's proposal was legislative in nature, did not repeal any existing ordinance, and did not exceed the village's municipal powers. Id., ¶¶ 17-22. Accordingly, the court of appeals concluded that the proposed ordinance was a proper subject of direct legislation under Wis. Stat. § 9.20, and remanded for issuance of the writ of mandamus. Id., ¶ 26. We accepted the Village Board's petition for review, and now affirm.
II. STANDARD OF REVIEW
¶ 9. Mandamus is an extraordinary writ issued in the discretion of the circuit court to compel compliance with a plain legal duty. State ex. rel. Althouse v. City of
¶ 10. Because the material facts are not in dispute, we are presented with a question of the proper application of Wis. Stat. § 9.20. This is a question of law that we review independently of the circuit court and court of appeals. Althouse, 79 Wis. 2d at 106-07; Heitman v. City of Mauston Common Council, 226 Wis.2d 542, 546, 595 N.W.2d 450 (Ct. App. 1999); Schaefer v. Potosi Village Bd., 177 Wis.2d 287, 289, 501 N.W.2d 901 (Ct. App. 1993).
¶ 11. We begin with James Madison's articulation of the justification for government, the necessity of limitations on governmental power, and the superiority of the republican form of government as a check against faction and the potential excesses of the majority:
The Federalist, No. 51 (James Madison).
¶ 12. 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. As a form of pure democracy, however, it also stands in contradiction of the principles of republican government, which is designed to guard against the oppression of the minority by the majority.
¶ 13. Direct legislation—procedures by which the voters themselves adopt legislation—comes in two forms, initiative and referendum.
¶ 14. Since 1911, Wisconsin has had a statutory form of direct democracy at the local level.
¶ 15. Direct local legislation by initiative "is a creature of statute and its use must comport with the requirements established by the legislature." Heitman, 226 Wis. 2d at 547 (citing Landt, 30 Wis. 2d at 478-79). A petition for direct legislation must be signed by "[a] number of electors equal to at least 15% of the votes cast for governor at the last general election in their city or village."
¶ 16. We have previously held that the procedure for direct local legislation established in Wis. Stat. § 9.20 "implements the legislative powers that have been reserved to the people" by their elected representatives in the legislature. Althouse, 79 Wis. 2d at 118-19. As such, the statute cannot be interpreted so as to unduly restrict those reserved local legislative powers, which "are exercised with particular appropriateness under circumstances where the people are of the opinion that their elected representatives are not acting in response to the public will." Id. at 119.
¶ 17. Direct legislation initiated pursuant to Wis. Stat. § 9.20 is subject to four limitations that we have held are implicit in the statute. See Althouse, 79 Wis. 2d at 105. An ordinance initiated under Wis. Stat. § 9.20: 1) must be legislative as opposed to administrative or executive in nature; 2) cannot repeal an existing ordinance; 3) may not exceed the legislative powers conferred upon the governing municipal body; and 4) may not modify statutorily prescribed procedures or standards. Heitman, 226 Wis. 2d at 548-49 (citing Althouse, 79 Wis. 2d at 107-08).
¶ 18. 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. See Althouse, 79 Wis. 2d at 118-19. If the statutory requirements for a direct legislation petition have been met, and none of the limitations applies, the statute provides that "[t]he common council or village board shall, without alteration, either pass the ordinance or resolution within 30 days ... or submit it to the electors at the next spring or general election." Wis. Stat. § 9.20(4) (emphasis added); Althouse, 79 Wis. 2d at 118.
¶ 19. The first of these limitations pertains to the basic nature of the ordinance that is the subject of the initiative. "Implicit in the direct legislation ... statute is the requirement that the ordinance or statute sought
¶ 20. For example, in Heider v. Common Council of City of Wauwatosa, 37 Wis.2d 466, 477-78, 155 N.W.2d 17 (1967), voters in the City of Wauwatosa had authorized the city to issue bonds in an amount not to exceed $7.5 million to acquire school sites and to erect and improve school buildings, including a high school. Id. at 470. A subsequent proposal for direct legislation sought to restrict the common council's approval of capital expenditures for an addition to the high school until a master plan for the buildings and grounds had been prepared under the direction of a city planning commission, with the guidance of a non-resident professional city planner. Id. at 469-470.
¶ 21. Because the subject of the initiative in Heider was not affirmative legislation upon a new subject, but instead sought to impose conditions on the previously enacted bonding authority for construction of the high school, we held that it was not a proper subject of direct legislation. Id. at 475-76. We used the following standard to distinguish between legislative and administrative or executive matters:
¶ 22. 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." Id. Relying on these principles, we held in Heider that the proposed direct legislation was administrative rather than legislative in nature, because it was "clearly a prescription of a procedure to be followed in execution of the ordinance [already] passed. It does not prescribe a `new policy or plan' but `merely pursues a plan already adopted.'" Id. at 475-76.
¶ 23. In State ex rel. Becker v. Common Council of City of Milwaukee, 101 Wis.2d 680, 305 N.W.2d 178 (Ct. App. 1981), the court of appeals relied upon Heider in concluding that a proposal for direct legislation which sought to remove the Milwaukee police chief was administrative rather than legislative in character. Because the proposal was specific in application to the current chief, would have only a temporary effect, did not set forth a general and permanent rule of conduct, and did not create a new policy or a new plan, the court of appeals concluded that the proposed direct legislation
¶ 24. Some years after Heider, in Althouse, we determined that a proposed ordinance which sought to impose rent controls was a legislative rather than administrative measure, because the common council could have enacted the ordinance as an original matter. Althouse, 79 Wis. 2d at 102, 118. We held that the direct legislation statute could be used "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." Id. at 118. Although the common council had refused to enact or place the rent control initiative on the ballot because of concerns about its constitutionality, we held that:
¶ 25. While the initiative process of Wis. Stat. § 9.20 can be used to compel the adoption or popular vote on any local matter legislative in character, it cannot be used to directly or indirectly repeal an existing ordinance. This second limitation on direct legislation was implicated in Landt, 30 Wis. 2d at 473. There, the proposed ordinance would have prohibited the fluoridation of the public water supply, after the common council had adopted an increase in the water supply's fluoride content. Id. Because the proposed fluoridation prohibition was solely an attempt to repeal an existing ordinance, we affirmed the circuit court's judgment quashing the petition for a writ of mandamus. Id. at 473-74.
¶ 26. The third limitation on direct legislation stipulates that a proposed ordinance may not exceed the legislative powers of the local governing body itself. Heitman, 226 Wis. 2d at 549. Electors cannot do through direct legislation what the municipal governing body cannot do in its own right. That is, direct
¶ 27. In Heitman, the court of appeals concluded that a proposed ordinance restricting the location of a treatment facility for sexually violent persons was essentially a zoning measure, required by state law to be submitted to the local planning commission. Id. at 550-52. As such, the court of appeals concluded that the proponent of the proposed ordinance in the direct legislation petition was "attempting to do by initiative what the Common Council, itself, cannot do; i.e., avoid the substantive and procedural safeguards" of state law regarding zoning. Id. at 554. Accordingly, the court of appeals concluded that "[b]ecause 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." Id.
¶ 28. Finally, and as a corollary to the third limitation, a proposed ordinance under Wis. Stat. § 9.20 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. Flottum v. City of Cumberland, 234 Wis. 654, 291 N.W. 777 (1940); Henderson v. Hoesley, 225 Wis. 596, 275 N.W. 443 (1937). Electors may not initiate legislation under the direct legislation statute if the proposed legislation would modify or conflict with statutorily-prescribed procedures that are binding on the municipality itself. Althouse, 79 Wis. 2d at 108; Heider, 37 Wis. 2d at 476-77.
¶ 29. In Flottum, the City of Cumberland was embarked upon a project to upgrade its electric generating plant, and was required to submit the financing of the project to a referendum in accordance with certain
¶ 30. Similarly, in State ex rel. Becker, 101 Wis. 2d at 687 n.6, the court of appeals held that the initiative for the removal of the Milwaukee police chief was an improper subject of direct legislation because it conflicted with the state statute that vests "the exclusive authority over the hiring, removal and disciplining of police and fire department personnel ... in the Board of Fire and Police Commissioners." Id. at 688.
¶ 31. Applying these principles here, we agree with the court of appeals that Community Alert's proposed ordinance is a proper subject of direct legislation under Wis. Stat. § 9.20. The proposed ordinance would require future capital projects costing $1 million or more to be submitted to a binding referendum. As such, the proposed ordinance is general in application (it applies to all new million dollar construction projects), sets forth a permanent rule until repealed, and creates new policy. It does not condition or direct the execution
¶ 32. A village board is statutorily responsible for "the management and control of the village ... finances" and may "carry its powers into effect by ... appropriation." Wis. Stat. § 61.34(1). The Village Board contends that the proposed ordinance is not "fully legislative" because many administrative decisions enter into municipal construction projects. The proposed ordinance, however, does not restrict administrative decisionmaking in connection with municipal construction projects; rather, it requires a referendum prior to the commencement of municipally-financed construction projects expected to cost $1 million or more. The appropriation of funds for municipal construction projects is a central legislative function.
¶ 33. The proposed ordinance carefully specifies that it does not restrict the village's administrative decisionmaking regarding planning and design of construction projects: "[n]othing in this provision shall be construed to preclude the Village from exercising its role in the planning or design of such publicly financed projects." The Village Board's contention that the proposed ordinance is more administrative than legislative is unpersuasive. The decision to build a new million-dollar project is clearly a legislative one.
¶ 34. The Village Board does not identify any existing ordinances that would be repealed by the proposed ordinance; the second limitation on direct legislation, therefore, is not implicated here. The Village Board does argue, however, that the proposed ordinance exceeds the authority of the Board itself. This argument is based upon the hypothetical application of
¶ 35. This argument is misplaced. Local library boards have "exclusive control of the expenditure of all moneys collected, donated or appropriated for the library fund, and of the purchase of a site and the erection of a library building whenever authorized." Wis. Stat. § 43.58(1). The library board's exercise of control over the expenditure of library funds only comes into play after library funding is "appropriated" or "authorized." While the proposed ordinance implicates the initial municipal decision to appropriate funds for a library construction project of $1 million or more, it does not dictate the manner in which those funds are expended once appropriated or authorized. We are satisfied that the proposed ordinance does not exceed the powers conferred upon the Village Board.
¶ 36. Finally, the Village Board argues that the proposed ordinance would modify various statutory procedures that govern public contracting and financing of municipal construction projects. The Board contends that the proposed ordinance would conflict with the public bidding and contracting provisions of Wis. Stat. §§ 61.54, 61.55, 61.56 and 62.15,
¶ 37. The Board contends that the referendum required by the proposed ordinance could not be held until after the bidding process is complete and contracts are entered into, because only then will the specific cost of the project be known. We share the court of appeals' skepticism of this argument: "[e]arly in the decisionmaking process, the cost of a project is a political issue for all municipalities. It is unrealistic to assume that the Village would have no idea whether a proposed project would cost $25,000, $750,000 or $1,250,000." Mount Horeb Community Alert, 252 Wis.2d 713, ¶ 15. While there may indeed be some practical difficulties associated with accurately costing a construction project in advance of bidding, these are political or policy arguments better addressed to the electorate; these potential practical difficulties do not operate to preclude the initiative from ever reaching the ballot in the first place. We see no conflict between the proposed ordinance and the statutes relating to public bidding and contracting sufficient to preclude action on Community Alert's petition.
¶ 38. The Village Board also contends that the proposed ordinance conflicts with the statutory provisions governing municipal bonding under Wis. Stat. § 66.0621 and, generally, Chapter 67. The Board describes these statutes as setting forth "comprehensive procedures for accomplishing municipal borrowing," but does not identify how the proposed ordinance would modify or conflict with these comprehensive procedures. The proposed ordinance does not reference bonding or municipal borrowing. Even assuming that most
¶ 39. Accordingly, we conclude that Community Alert's proposed ordinance fully complies with Wis. Stat. § 9.20 and is therefore an appropriate subject of direct legislation under the statute. It is legislative rather than administrative in nature; it does not repeal any existing ordinance; it falls within the authority of the Village Board itself; and it does not modify or conflict with state statutes that would bind the Board if it tried to legislate in the same area. Because all of the requirements of Wis. Stat. § 9.20 have been met and none of the statute's implicit limitations applies, the Village Board was required to act on Community Alert's petition pursuant to Wis. Stat. § 9.20(4). Because the Village Board took no action on the petition, mandamus to compel compliance with Wis. Stat. § 9.20(4) is proper. See Althouse, 79 Wis. 2d at 102. We affirm the decision of the court of appeals which remands the cause to the circuit court for issuance of the writ of mandamus.
By the Court.—The decision of the court of appeals is affirmed.
¶ 40. N. PATRICK CROOKS, J. (dissenting).
For the reasons set forth below, I must dissent.
¶ 41. The proposed ordinance here compromises the principles of representative government and
Representative Government Principles/Constitutional Issues
¶ 42. I begin, like the majority, with recognition of the concept of our republican form of government, as provided for in the guarantee clause of section 4, Article IV of the United States Constitution.
¶ 43. The key word in the above quote is "republic". Our founding fathers chose a representative form of government over a direct democracy. In developing the republican form of government that exists today, a three-branch government was carefully crafted, to include separate powers and authority for each branch, so that there are checks and balances to protect against fear of tyranny by the majority.
¶ 44. Because our founding fathers rejected a direct democracy and instead adopted a representative democracy, direct legislation, in the form of initiative and referendum, is appropriately limited. In Wisconsin, direct legislation is a statutory right, rather than a constitutional right. Meade v. Dane County, 155 Wis. 632, 145 N.W. 239 (1914). As such, we have narrowly interpreted statutory provisions concerning direct legislation. See Landt v. City of Wisconsin Dells, 30 Wis.2d 470, 478-79, 141 N.W.2d 245, 249-50 (1966).
¶ 45. The Wisconsin Constitution does not reserve to the people either a general right of initiative or referendum. Instead, the people of Wisconsin delegated all lawmaking powers to the legislature with the adoption of the state constitution. Wis. Const. Art. IV § 1.
¶ 46. As noted previously, initiative involves legislative acts and cannot extend to administrative actions. Heider v. Common Council of City of Wauwatosa, 37 Wis.2d 466, 474, 155 N.W.2d 17, 21 (1967). "Where [an ordinance] is administrative in character, it is outside the scope of initiative action and ... it becomes a matter of judicial disposition to determine whether or not the actions of the electorate under [Section 9.20] are proper...." Id. at 474.
¶ 48. Here, the ordinance requires the Mount Horeb Village Board to identify in the wording of a capital expenditure referendum the "specific purpose, location and cost of the [capital improvement] project." Thus, the ordinance seeks to control more than just spending decisions. The location, and the purpose, of the proposed capital project are also at issue. Location decisions are generally functions controlled by an administrative body. For example, as noted in the amicus brief of the League of Wisconsin Municipalities, the location of a water tower is regulated by the Wisconsin Department of Natural Resources (DNR). Wis. Admin. Code § NR 811.57. Similarly, the location of public buildings and location of parks, streets, airports and other such items, is a shared function of a plan commission—an administrative body—with a city council or a village board. Wis. Stat. § 62.23(5). The provisions of Wis. Stat. § 62.23 are applicable to villages, such as the Village of Mount Horeb. Wis. Stat. § 61.35. Community Alert's proposed ordinance certainly seems more administrative than legislative in nature. The authority for direct legislation is not applicable
Modification of Statutory Procedures
¶ 49. We disagree with the majority in regard to its conclusion that the proposed ordinance does not modify the statutory municipal borrowing procedures.
¶ 50. "(W)here a statute has conferred a procedure upon a [municipal] body, electors may not demand the submission of a question which [under the direct legislation statute] would modify the statutory authority." Heider, 37 Wis. 2d at 477 (citations omitted).
¶ 51. Based on the constitutionally delegated authority discussed previously, it seems clear that Wisconsin law does not favor a broad reading of the initiative power. In Heitman v. City of Mauston, 226 Wis.2d 542, 595 N.W.2d 450 (1999), the court of appeals concluded that an ordinance proposal under Wis. Stat. § 9.20, which attempted to prohibit the City of Mauston from approving the building of a ch. 980 facility on city land, was in essence a zoning ordinance. The court of appeals held that the proposed prohibition was "pervasive," and was an attempt "to do by initiative what the Common Council itself, cannot do, i.e., avoid the substantive and procedural safeguards" of the state zoning statutes. Id. at 554. The proposed ordinance was the type of ordinance electors cannot implement under Section 9.20. Id. at 553. Likewise, here, the Community Alert initiative conflicts with the municipal borrowing statutes, Wis. Stat. ch. 67, and with the procedures set forth in Wis. Stat. § 66.0621 relating to construction projects and the revenue obligations involved. See Denning v. City of Green Bay, 271 Wis. 230, 234-35, 72 N.W.2d 730,
¶ 52. Here, the proposed ordinance would alter the legislatively created structure of village government, and undermine the statutory authority granted to the Mount Horeb Village Board. If adopted, the proposed ordinance would make the village electors, not the village board, the final decision maker, as to whether the village should proceed on any project involving a capital expenditure of one million dollars or more.
¶ 53. The legislature granted the village board authority to acquire property or manage village finances. It did not provide a general right for village electors to review the exercise of these powers by referendum, whether they involve a capital expenditure or not. Rather, the right of village electors to require a referendum, in response to an exercise of those powers, is limited to specific circumstances, such as bond issues. See Wis. Stat. § 67.05.
¶ 54. The majority correctly assumes that the ordinance would implicate municipal borrowing, because most projects which cost one million dollars or more require borrowing. Wisconsin Stat. ch. 67 provides a comprehensive scheme for municipalities desiring to borrow. Prior to a bond issue, the village board must pass a resolution authorizing borrowing. Wis. Stat. § 67.05(1). For the majority, if not all, of large capital projects (such as those involving libraries), a referendum must then be submitted to the electors for approval of the bond issue. Wis. Stat. § 67.05(5)(b).
¶ 55. Assuming that the proposed ordinance operates prior to the passage of the initial resolution authorizing borrowing, the village electorate first would
¶ 56. Wisconsin law does not appear to permit such a modification. In Flottum v. City of Cumberland, 234 Wis. 654, 666-67, 291 N.W. 777,782 (1940), this court held that a direct legislation petition, requesting a referendum on the municipal purchase of a power plant, improperly modified statutory procedures. We found that Section 66.06 (now 66.0621) provided the mechanism for this type of purchase. Section 66.06 granted the common council the authority to pass a resolution authorizing the purchase, and allowed the submission of the question for referendum. Flottum, 234 Wis. at 666. Thus, we held that the electorate could not request submission of the question by direct legislation under Section 10.43 (now 9.20), when a separate procedure was already in place. See also Henderson v. Hoesley, 225 Wis. 596, 601, 275 N.W. 443, 445 (1937) (holding direct legislation not appropriate where "the resolution, if it had been adopted ... would in effect have provided that the proposed action ... be again submitted to the voters of the city for their approval or disapproval").
¶ 57. It could be argued that this case is distinguishable, because the proposed ordinance could conceivably operate prior to the second referendum, whereas in Flottum and Henderson the ordinance
¶ 58. The ordinance here directly affects the financing of capital projects, an area governed by Wis. Stat. ch. 67. Thus, for that reason, Flottum and Henderson appropriately control the outcome of this case.
¶ 59. Based on Heider, Flottum, Henderson, Denning, Heitman, and the strong commitment to a representative democracy present in Wisconsin law, the court of appeals' decision should be reversed.
¶ 60. Unfortunately, there are some who wish to disrupt the wheels of government solely for the purpose of disruption. The majority opinion provides them with a blueprint and an imprimatur. Although the majority certainly does not intend this result, the law of unintended consequences may well prevail.
¶ 61. For the reasons discussed, I respectfully dissent.
¶ 62. I am authorized to state that Justices WILLIAM A. BABLITCH and JON P. WILCOX join this dissent.
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