Metro. Milwaukee Ass'n of Commerce Inc. v. City of Milwaukee

• Decision Date: 24 March 2011
• Docket Number: No. 2009AP1874–AC.,2009AP1874–AC.
• Citation: 798 N.W.2d 287,332 Wis.2d 459,2011 WI App 45
• Parties: METROPOLITAN MILWAUKEE ASSOCIATION OF COMMERCE, INC., Plaintiff–Respondent,v.CITY OF MILWAUKEE, Defendant,9to5 National Association of Working Women, Milwaukee Chapter, Intervenor–Defendant–Appellant.
• Court: Wisconsin Court of Appeals

332 Wis.2d 459

798 N.W.2d 287

2011 WI App 45

METROPOLITAN MILWAUKEE ASSOCIATION OF COMMERCE, INC., Plaintiff–Respondent,

v.CITY OF MILWAUKEE, Defendant,9to5 National Association of Working Women, Milwaukee Chapter, Intervenor–Defendant–Appellant.

No. 2009AP1874–AC.

Court of Appeals of Wisconsin.

Submitted on Briefs October 16, 2010.Opinion Filed March 24, 2011.

On behalf of the intervenor-defendant-appellant, the cause was submitted on the briefs of Barbara Zack Quindel and Richard Saks of Hawks Quindel, S.C., Milwaukee. There was oral argument by Barbara Zack Quindel.On behalf of the plaintiff-respondent, the cause was submitted on the brief of Scott C. Beightol and Joseph Louis Olson of Michael Best & Friedrich LLP, Milwaukee. There was oral argument by Joseph Louis Olson.A nonparty brief was filed by Tony Gibart, Sharyn Tejani, and Ian Henderson, Madison, on behalf of the Wisconsin Coalition Against Domestic Violence, the Wisconsin Coalition Against Sexual Assault, and the National Partnership for Women and Families.A nonparty brief was filed by Ion B. Meyn, Madison, on behalf of the Wisconsin Democracy Campaign.Before VERGERONT, P.J., LUNDSTEN and HIGGINBOTHAM, JJ.VERGERONT, P.J.

This appeal concerns an ordinance providing paid sick leave for employees within the City of Milwaukee that was enacted pursuant to the direct legislation statute, Wis. Stat. § 9.20 (2009–10).¹ Metropolitan Milwaukee Association of Commerce (MMAC) filed this action challenging the ordinance on statutory and constitutional grounds. The circuit court granted summary judgment and injunctive relief in favor of MMAC, concluding the ballot statement did not comply with § 9.20(6) and that certain provisions in the ordinance were not rationally related to the City's police powers and were not severable from the rest of the ordinance.

¶ 2 We disagree with the circuit court and conclude that the proponents of the ordinance, not MMAC, are entitled to summary judgment. Specifically, we hold:

I. The ballot did comply with the statutory requirement that it contain “a concise statement of [the ordinance's] nature” under Wis. Stat. § 9.20(6).

II. The ordinance as a whole and the specific challenged provisions do not violate substantive due process because there is a rational relationship to the City's police powers.

III. The ordinance is not preempted by state statutes.

IV. The ordinance is not preempted by the National Labor Relations Act (NLRA) or the Labor Management Relations Act (LMRA).

V. The ordinance does not violate the state and federal constitutional prohibitions against impairment of contracts.

VI. The ordinance does not regulate activity outside the City limits.

VII. The two-year period under § 9.20(8), during which the ordinance may not be repealed or amended except by a vote of the electors, excludes the time between the circuit court's issuance of the temporary injunction and the vacation of the permanent injunction by the circuit court pursuant to this opinion.

Accordingly, we reverse and remand with directions to grant summary judgment in favor of 9to5 and to vacate the permanent injunction.

BACKGROUND

¶ 4 Wisconsin Stat. § 9.20, the direct legislation statute, permits city and village electors to initiate legislation by submitting a petition requesting that the governing body either adopt the attached proposed ordinance without alteration or submit it to the local electors for a vote. § 9.20(1), (4). Pursuant to this statute, a coalition of organizations, led by the Milwaukee Chapter of 9to5 National Association of Working Women, initiated a drive for a petition seeking to enact a proposed ordinance requiring paid sick leave for employees within the City. After the required number of signatures were collected and the petition was filed, the Milwaukee Common Council decided not to enact the ordinance but to place it on the ballot for the November 4, 2008, election. Notice of the election containing the full text of the proposed ordinance, identified as Common Council File 080420, along with the ballot question, was published and posted as required by Wis. Stat. §§ 9.20(5) and 5.35(6)(a). The ballot question asked: “Shall the City of Milwaukee adopt Common Council File 080420, being a substitute ordinance requiring employers within the City to provide paid sick leave to employees?”

¶ 5 There were 157,117 “yes” votes (68.64%) and 71,131 “no” votes (31.16%). Pursuant to Wis. Stat. § 9.20(7), the ordinance became effective upon its publication on November 12, 2008.²

[798 N.W.2d 295 , 332 Wis.2d 473]

Shortly thereafter MMAC filed this action seeking a declaration that the ordinance was invalid on a number of statutory and constitutional grounds and requesting temporary and permanent injunctive relief. The circuit court granted a temporary injunction and then granted summary judgment in favor of MMAC and a permanent injunction.

¶ 7 With respect to MMAC's challenge to the ballot question, the court concluded that it did not meet the “concise statement” requirement of Wis. Stat. § 9.20(6) because it did not contain enough information about the ordinance. In particular, the court ruled, the ballot did not inform voters that the ordinance required paid sick leave for two reasons the court found were outside the commonly accepted understanding of sick leave: to seek relocation due to domestic or sexual violence or stalking and to prepare for or participate in a civil or criminal legal proceeding related to domestic or sexual violence. Milwaukee Code of Ordinances (MCO) § 112–5.1.c–4, c–5 (2008). The court also concluded that these two provisions were not rationally related to the police powers of the City and therefore rendered the ordinance unconstitutional. The court rejected the request of the City and of 9to5, which had been permitted to intervene, to sever these portions from the rest of the ordinance. On the remainder of MMAC's challenges to the validity of the ordinance, the court ruled against MMAC.³

DISCUSSION

¶ 8 We address the following issues on 9to5's appeal: ⁴

I. Does the ballot question contain “a concise statement of [the ordinance's] nature,” as required by Wis. Stat. § 9.20(6)?

II. Does the ordinance as a whole or specific challenged provisions violate substantive due process because there is no rational relationship to the City's police powers?

III. Is the ordinance preempted by a state statute, specifically, the Minimum Wage Law, Family/Medical Leave Act, or Worker's Compensation Act?

IV. Is the ordinance preempted by a federal statute, specifically the National Labor Relations Act or the Labor Management Relations Act?

V. Does the ordinance violate the state and federal constitutional prohibitions against impairment of contracts?

VI. Does the ordinance regulate activity outside the City limits?

VII. How does the injunction issued by the circuit court affect the two-year period under Wis. Stat. § 9.20(8), during which the ordinance may not be repealed or amended except by a vote of the electors? ⁵

¶ 9 Because we are reviewing the grant of a motion for summary judgment, our review is de novo. Green Spring Farms v. Kersten, 136 Wis.2d 304, 314–16, 401 N.W.2d 816 (1987). A party is entitled to summary judgment if there are no genuine issues of material fact and that party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). Although our review is de novo and although we disagree with the circuit court on some of the issues, the court's extensive analysis is helpful to this court.

I. Ballot Question

¶ 10 The heart of the parties' dispute over the ballot question is the degree of specificity required by Wis. Stat. § 9.20(6), which provides: “The ordinance or resolution need not be printed in its entirety on the ballot, but a concise statement of its nature shall be printed together with a question permitting the elector to indicate approval or disapproval of its adoption.”

¶ 11 9to5 argues that the phrase “a concise statement of [the ordinance's] nature” means a concise statement of the general purpose of the proposed ordinance—its “nature.” According to 9to5, because the nature of the proposed ordinance is that it requires employers to provide paid sick leave to employees in the City, the statement on the ballot, together with a reference to the ordinance number, satisfies the statutory requirement. More detail is not required, 9to5 asserts, because the purpose of this concise statement is not to inform voters of the specific provisions of the ordinance; that function is fulfilled by the published notices and the posting at the polling place required by other statutory provisions.

¶ 12 MMAC responds that more detail is required by case law establishing that the ballot must contain “every essential” element of the proposed ordinance. According to MMAC, the circuit court correctly ruled that the relocation and legal action uses of sick leave must be stated on the ballot, along with other essential elements.

¶ 13 Resolution of the parties' dispute requires us to construe Wis. Stat. § 9.20(6) in light of the case law involving the same or similar provisions. We divide our discussion into four sections. In section A, we examine the statutory language at issue—“a concise statement of [the ordinance's] nature”—and conclude that in isolation the common meaning of this phrase encompasses the constructions advanced by both parties. In section B, we discuss the case law on which the parties rely. We conclude the case law does not require, as MMAC contends and the circuit court agreed, that we employ the “every essential element” standard; but we also conclude that the case law does not provide a complete answer to the proper construction of § 9.20(6). In section C, with the guidance provided by case law, we examine the disputed phrase in its statutory context. We conclude that § 9.20(6), properly construed, means “a brief statement of the general purpose of the proposed ordinance.” In ...