Mount Horeb Community Alert v. Village Bd., 01-2217.

• Decision Date: 08 July 2003
• Docket Number: No. 01-2217.,01-2217.
• Citation: 263 Wis.2d 544,665 N.W.2d 229,2003 WI 100
• Parties: MOUNT HOREB COMMUNITY ALERT, Judy Patenaude, Laura Wenman, Audrey Yapp and Wayne Yapp, Plaintiffs-Appellants, v. VILLAGE BOARD OF MT. HOREB, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

263 Wis.2d 544

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.

No. 01-2217.

Supreme Court of Wisconsin.

Oral argument November 6, 2002.

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).¹ ¶ 2. The direct legislation statute 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. See Wis. Stat. § 9.20(1), (4). The proposed ordinance at issue here, initiated by a group of Mount Horeb citizens, would require the Village of Mount Horeb to hold a binding referendum prior to the start of construction on any new village building project requiring a capital expenditure of $1 million or more.

¶ 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 under Wis. Stat. § 9.20(4). We affirm the court of appeals and remand for issuance of the writ of mandamus.

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:

Prior to the start of any physical construction of any municipally financed (in whole or in part) project requiring a Village capital expenditure of $1 million or more, the Village Board shall submit to the electorate a binding referendum for approval of the project. Failure of the binding referendum shall preclude the Village from proceeding with the project. The wording of any referendum shall provide the specific purpose, location and cost of the project. Nothing in this provision shall be construed to preclude the Village from exercising its role in the planning or design of such publicly financed projects.

This ordinance shall be in full force and effect upon passage and publication as provided by law.

¶ 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 determined that the proposed ordinance was not an appropriate subject for direct legislation. Accordingly, the Village Board neither adopted the proposed ordinance nor placed it on the ballot in the spring election.

¶ 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

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¶ 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 Madison, 79 Wis. 2d 97, 105-06, 255 N.W.2d 449 (1977). A writ of mandamus is equitable in nature and will issue when the plaintiff demonstrates: 1) a clear legal right to relief; 2) a positive and plain legal duty on the part of the official or body to whom the writ is directed; 3) substantial damage due to the nonperformance of the duty; and 4) no adequate remedy at law. Law Enforcement Standards Bd. v. Lyndon Station, 101 Wis. 2d 472, 493, 305 N.W.2d 89 (1981). Mandamus is the proper means to challenge a municipality's failure to comply with the requirements of the direct legislation statute, Wis. Stat. § 9.20. Althouse,79 Wis. 2d at 102; Thompson v. Village of Whitefish Bay, 257 Wis. 151, 153-54, 42 N.W.2d 462 (1950).

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¶ 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).

III. ANALYSIS

¶ 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:

But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the greatest difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

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.²

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¶ 13. Direct legislation—procedures by which the voters themselves adopt legislation—comes in two forms, initiative and referendum.³ Initiative involves the initiation and enactment of new legislation directly by the electorate; referendum involves direct review by the electorate of legislation which the governing body has adopted or provisionally adopted pending voter approval. Landt v. City of Wisconsin Dells, 30 Wis. 2d 470, 475, 141 N.W.2d 245 (1966); Heitman, 226 Wis. 2d at 546-47.

¶ 14. Since 1911, Wisconsin has had a statutory form of direct democracy at the local level.⁴ See Wis. Stat. § 9.20, the direct legislation statute; ch. 513, Laws of 1911.⁵ The direct legislation statute provides an initiative procedure by which citizens of a city or village may compel their common council or village board to pass a proposed ordinance directly or put the proposed ordinance before the local electors for a popular vote. [7]

¶ 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."⁶ Wis. Stat. § 9.20(1). Upon certification as to sufficiency and form by the city or village clerk, "[t]he common council or village board shall, without alteration, either pass the ordinance or resolution within 30 days following the date of the...