State ex rel. Althouse v. City of Madison

• Decision Date: 01 July 1977
• Docket Number: No. 76-158,76-158
• Citation: 255 N.W.2d 449,79 Wis.2d 97
• Parties: STATE of Wisconsin ex rel. Philip ALTHOUSE and Madison Committee for Fair Rent, Appellants, v. CITY OF MADISON, Madison Common Council and Eldon Hoel, Madison City Clerk, Respondents.
• Court: Wisconsin Supreme Court

Page 449

255 N.W.2d 449

79 Wis.2d 97

STATE of Wisconsin ex rel. Philip ALTHOUSE and Madison Committee for Fair Rent, Appellants, v. CITY OF MADISON, Madison Common Council and Eldon Hoel Madison City Clerk, Respondents.

No. 76-158.

Supreme Court of Wisconsin.

Submitted on Briefs May 4, 1977.

Decided July 1, 1977.

Mark A. Frankel and Frankel, Langhammer & Pines, Madison, on briefs, for appellants; Arlen C. Christenson, David E. Lasker and Michael R. Christopher, Madison, of counsel.

Henry A. Gempeler, City Atty., and Larry W. O'Brien, Deputy City Atty., on brief, for respondents.

Brief amicus curiae was filed by James F. Spohn and Michael, Best & Friedrich, Madison; and Theodore C. Widder, III and MacDonald & Widder, Madison, of counsel, on behalf of the Madison Housing Council Inc.

Brief amicus curiae was filed by William H. Lynch, Milwaukee, on behalf of Wisconsin Civil Liberties Union Foundation, Inc.

HEFFERNAN, Justice.

This case poses the question of whether a city council can be compelled by mandamus to place on the ballot a referendum question for the adoption of an ordinance initiated in proper form in accordance with sec. 9.20(1), Stats., but which ordinance the common council, on the advice of the city attorney, has concluded is in violation of state statutes and is unconstitutional. We conclude that mandamus is appropriate under such circumstances, and we hold that the trial court erred when it denied the petition for a writ of mandamus. Accordingly, we reverse.

On January 20, 1976, a petition signed by over 8,500 electors of the City of Madison was filed with the city clerk. Attached to that petition was a document entitled, "Fair Rent Ordinance," which the petitioners sought to have enacted pursuant to sec. 9.20, Stats. It is agreed that the petition and the attached ordinance were in conformity with the requirements of Wisconsin's direct legislation statutes. Sec. 9.20(1) provides:

"9.20 Direct legislation (1) A number of electors equal to at least 15% of the votes cast for governor at the last general election in their city may sign and file a petition with the city clerk requesting that an attached proposed ordinance or resolution, without alteration, either be adopted by the common council or referred to a vote of the electors. The person filing the petition shall designate in writing a person or organization to be notified of any insufficiency or improper form under sub. (3)."

After the city clerk concluded that the petition was in formal compliance with the statutes, on January 27, 1976, he certified the petition and forwarded it to the common council of the City of Madison pursuant to sec. 9.20(3), Stats. That subsection provides:

"(3) Within 15 days after the petition is filed, the city clerk shall determine by careful examination whether the petition is sufficient and whether the proposed ordinance or resolution is in proper form. He shall state his findings in a signed and dated certificate attached to the petition. If the petition is found to be insufficient or the proposed ordinance or resolution is not in proper form, the certificate shall give the particulars, stating the insufficiency or improper form. The petition may be amended to correct any insufficiency or the proposed ordinance or resolution may be put in proper form within 10 days following the affixing of the original certificate and notification of the person designated under sub. (1). When the original or amended petition is found to be sufficient and the original or amended ordinance or resolution is in proper form, the city clerk shall so state on the attached certificate and forward it to the common council immediately."

The common council failed, however, to act upon the ordinance, as required in sec. 9.20(4), Stats. That subsection provides:

"(4) The common council shall, without alteration, either pass the ordinance or resolution 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 6 weeks after the date the order is given. If 6 weeks or less before election the ordinance or resolution shall be voted on at the next election thereafter. The council by a three-fourths vote of the members-elect may order a special election for the purpose at any time prior to the next election, but not more than one special election for direct legislation shall be called in any 6-month period."

Finally, on September 7, 1976, almost nine months later, the council adopted a resolution removing the proposed ordinance from the ballot. This action was apparently pursuant to the advice of the city attorney that the ordinance, if passed, would be unconstitutional.

On September 10, 1976, the petitioners, the proponents of the ordinance, asked for leave to commence an action for mandamus to compel the common council to place the ordinance on the ballot. The petitioners alleged that, in refusing to either enact the ordinance or to place it on the ballot, the common council had failed to perform a mandatory ministerial duty prescribed under sec. 9.20(4), Stats., supra, and that in so doing it had usurped the function of the courts by making a judicial determination on the validity or constitutionality of the proposed direct legislation.

On the return to the alternative writ, the common council alleged:

"(It had) an affirmative duty and an obligation to scrutinize all proposals presented to it and neither to enact nor put to popular vote those proposals which it believes to be clearly invalid; this duty and obligation takes precedence over the procedure described in Sec. 9.20, Wis.Stats., which assumes inherently, that proposals submitted thereunder are constitutionally valid."

At the hearing on the return to the alternative writ, the parties stated what they believed to be the issue presented to the court. The attorney for the petitioners stated:

"The threshold question is whether the Court at this point in time, at this stage in the development of this particular legislation, has authority or standing to delve into the merits of the constitutionality (of the ordinance)."

The city attorney stated his version of the issue:

"The threshold question of this thing is still whether or not the council must by mandamus be compelled to put what is at least very arguably a strongly unconstitutional proposition (on the ballot) . . . ."

The trial judge, in substance, adopted the city attorney's framing of the issue. He stated that he would treat the matter as though it were on demurrer and on the assumption that the ordinance was, in some respects at least, invalid. He said:

"Assuming the proposed rent control ordinance is either unconstitutional or legally invalid because it conflicts with the state statutes, must the Court nonetheless issue a peremptory Writ of Mandamus to compel the common council and the city clerk to place the ordinance on the November ballot?"

We conclude that this was an erroneous framing of the question, for, as we shall discuss further, it is not the prerogative of the common council to reach a conclusion with respect to the unconstitutionality or invalidity of the proposed ordinance. It was error for the trial judge to assume the unconstitutionality of the ordinance. The question, rather, was whether the common council or the trial judge had at this stage of the proceedings the prerogative to inquire at all into the constitutionality of the ordinance.

We conclude the only inquiries permissible by either the council or the trial judge at the mandamus hearing were in respect to whether the ordinance was legislative in nature, whether it proposed new legislation and not the repeal of existing legislation, and whether it was proper in form. Moreover, we conclude that, under the circumstances which underlay the consideration of this attempt at direct legislation, mandamus would lie even though it might have been quite clear to the trial judge that the ordinance, if enacted, would be unconstitutional.

Putting aside for a moment the special questions which arise in the context of the direct legislation statute, we consider the accepted standards that are appropriate for the guidance of a court in mandamus actions.

In the recent case of Rawhouser v. CESA No. 4, 75 Wis.2d 52, 61, 248 N.W.2d 442, 447 (1977), we said:

"Mandamus is a summary, drastic and extraordinary writ issued in the sound discretion of the court. Although classed as a legal remedy, mandamus is equitable in nature. Its issuance is generally controlled by equitable principles. It may issue when no other adequate remedy exists. Also, the rights of the public and third persons may be considered. State ex rel. Sullivan v. Hauerwas, 254 Wis. 336, 36 N.W.2d 427 (1949); State ex rel. Joyce v. Farr, 236 Wis. 323, 295 N.W. 21 (1940)."

There are, however, additional strictures on the issuance of the writ. It will lie only where the petitioner has a clear specific legal right to the action he seeks to compel. Wisconsin Area Health & Welfare Fund v. Hon. Walter H. Cate, 71 Wis.2d 375, 238 N.W.2d 107 (1976). Where, however, the right is positive, plain, and unequivocal, mandamus is appropriate. Milwaukee County v. Schmidt, 52 Wis.2d 58, 187 N.W.2d 777 (1971). But when the action sought to be compelled is discretionary, mandamus will not lie. However, mandamus is appropriate to compel the exercise of discretion. State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N.W. 587 (1902).

Nevertheless, the fact that the duty imposed involves the construction of a statute does not mean that the obligation set forth in the statute may not be compelled by mandamus.

We said in Walter Laev, Inc. v. Karns, 40 Wis.2d 114, 120, 161 N.W.2d 227, 230 (1968):

" 'If the law direct him to perform an act in regard to which no discretion is committed to him, and which, upon the facts existing, he is bound to perform, then that act is ministerial, although...