State ex rel. Michalek v. LeGrand

Decision Date17 May 1977
Docket NumberNo. 76-123,76-123
PartiesSTATE ex rel. Linda MICHALEK, Petitioner-Appellant, v. Alex LeGRAND, Respondent.
CourtWisconsin Supreme Court

Facts have been stipulated to before the trial court. On May 21, 1975, petitioner-appellant Linda Michalek filed a petition for a writ of mandamus seeking to compel respondent Alex LeGrand, building inspector of the city of Milwaukee, to implement sec. 51-4 of the Milwaukee Code of Ordinances. This section, which provides for the withholding of rent payments by tenants, authorizes the city building inspector to deposit such rent payments into an escrow account until such time as the premises involved are free of any violation of the city building and zoning code.

Appellant's petition stated that she had moved into the premises here involved on April 1, 1974, renting from the landlord on a month-to-month tenancy pursuant to an oral agreement. On October 25, 1974, water leakage from the ceiling of petitioner's apartment resulted in damage to various personal belongings of petitioner.

On November 1, 1974, respondent issued an order to "correct condition of premises" to the owner. (This order directed that the roof be repaired to prevent further water leakage.) On December 9, 1974, this order was rescinded after respondent certified that said repairs had been substantially completed. However, the roof continued to leak. On February 19, 1975, respondent issued another order to the owner to "correct condition of premises." This time the demanded repairs were not made by the owner.

Petitioner then sought to withhold her rental payments, pursuant to sec. 51-4(1) of the city ordinances. She requested an authorization for and a designation of an escrow account for the deposit of rental payments, as provided for in sec. 51-4(1). Respondent refused to authorize the escrow account, basing his refusal on the possible unconstitutionality of sec. 51-4.

Petitioner then commenced this mandamus action seeking to compel respondent to enforce ordinance 51-4. The trial court refused the writ of mandamus sought, holding ordinance 51-4 of the Milwaukee Code of Ordinances unconstitutional. (Order denying writ issued on March 30, 1976.) Petitioner appeals.

George R. Edgar, Milwaukee (argued), for appellant; Louis J. Mestre, Milwaukee Legal Services, Inc., on the brief.

Charles R. Theis, Asst. City Atty. (argued), with whom on the brief was James B. Brennan, City Atty., for respondent.


Challenged here is the constitutionality of the rent withholding ordinance of the city of Milwaukee, enacted to compel compliance with the city's building and zoning code.

Our discussion begins with reviewing the reach and impact of the municipal home rule amendment to the Wisconsin Constitution, providing:

"Cities and villages organized pursuant to state law are hereby empowered, to determine their local affairs and government, subject only to this constitution and to such enactments of legislature of state-wide concern as shall with uniformity affect every city or every village. . . . " 1

Our court has held at an early date that this home rule amendment accomplishes two things, in some measure distinct: (1) It makes a direct grant of legislative power to municipalities; 2 and (2) it limits the legislature in the exercise of its general grant of legislative power. 3 It does the first " . . . by expressly giving cities and villages the power 'to determine their local affairs and government.' " It does the second " . . . by limiting . . . the legislature in its enactments in the field of local affairs of cities and villages." 4 Such a constitutional expression of the will of the people is to be liberally construed. 5

In defining what is or is not a matter for such empowerment, which is constitutionally granted to cities and villages in this state "to determine their local affairs and government," our court has outlined three areas of legislative enactment: (1) Those that are "exclusively of state-wide concern;" 6 (2) those that "may be fairly classified as entirely of local character;" 7 and (3) those which "it is not possible to fit . . . exclusively into one or the other of these two categories." 8

As to the third "mixed bag" category of situations, our court has recognized " . . . that many matters while of 'state-wide concern, 'affecting the people and state at large somewhat remotely and indirectly, yet at the same time affect the individual municipalities directly and intimately, can consistently be, and are, 'local affairs' of this (home rule) amendment.'' 9

Whether a challenged legislative enactment, state or local, possessing aspects of "state-wide concern" and of "local affairs," is primarily or paramountly a matter of "local affairs and government" under the home rule amendment or of "state-wide concern" under the exception thereto is for the courts to determine.

Applying the test of paramountcy, in the Ekern Case, our court held that the height of buildings in a particular community was a matter of the "local affairs" of such community within the meaning of that term as used in the home rule amendment. 10 Contrary-wise, in the Van Guilder Case, this court held that the compensation of police officers was a matter of "state-wide concern" as that term is used in the home rule amendment. 11

Our court has subsequently made clear there is no inconsistency in the contrary results thus reached because: "In both cases the court was confronted with a subject of legislation which partook both of the nature of a 'local affair' and also that of 'state-wide concern,' but in the former (Ekern) case it held that the matter was primarily a 'local affair,' while the latter (Van Guilder) decision held that the 'state-wide concern' feature was paramount." 12

Applying this test of paramountcy to the ordinance before us, enacted by the Milwaukee Common Council to secure compliance with the provisions of the city's building and zoning code, we do not hesitate in holding it to be primarily and paramountly an enactment that is a matter of the "local affairs and government" of such city and, as such, authorized by the home rule amendment to the state constitution. Keeping that holding in mind, we now proceed to examine the challenges raised on this appeal to the constitutional validity of this ordinance.

The first arrow that the challenger puts to his bow is that the enactment of a rent withholding ordinance by the city here is an attempt to legislate in an area which has been preempted by a specific state statute. Respondent refers to sec. 280.22, Stats., which applies only in counties having a population of 100,000 or more, and which declares that residential buildings which do not comply with local building codes are a public nuisance. The statute further provides for the appointment of a receiver in such situations, the receiver to be empowered to collect rents to make needed repairs and to abate the public nuisance.

Since the ordinance here challenged is held to be in the field of "local affairs and government" under the home rule amendment, the doctrine of preemption does not apply. In an area solely or paramountly of statewide concern, the legislature may either delegate to local units of government " . . . a limited authority or responsibility to further proper public interests," 13 or may preempt the field by expressly banning local legislative action as to such matter of statewide concern. As to an area solely or paramountly in the constitutionally protected area of "local affairs and government," the state legislature's delegation of authority to legislate is unnecessary and its preemption or ban on local legislative action would be unconstitutional.

Even if there were conflict or potential for conflict between the challenged ordinance enacted to secure compliance with the local building and zoning code, and the state statute providing for receivership to abate nuisances, it would be the doctrine of paramountcy, not the concept of preemption, that would here be applicable. Recently, in the Beloit Case, which involved a voiding-by- referendum provision in a state statute relating to sewage connection orders, this court found pollution control a clear matter of statewide concern and, on the other side of the scale "matters of purely local concern relating to the tax base." 14 As to conflict between such statewide concern and such local affair, our court said " . . . it would not be difficult to find that voiding of a sewerage connection order to serve such purely local concerns 'blocked' advancement of the paramount interest involved." 15

However, in the instant case, while the purposes served are related and the authorized procedures are similar, we find neither conflict nor potential for conflict between the challenged ordinance and sec. 280.22, Stats. They are not locomotives on a collision course. Rather each moves on its own track, parallel and not too far apart, traveling in the same direction. With the ordinance on track to further a local affairs concern and the statute on track to advance a matter of statewide concern, we see no constitutional reason to derail either. Neither one blocks the way of the other, so both can here proceed, one being a valid exercise of municipal lawmaking authority under the home rule amendment and the other, it would appear, a valid enactment of the state legislature in a field of statewide concern. 16

The second arrow put to the challenger's bow is that the rent withholding ordinance impermissibly conflicts with state enactments involving landlord-tenant and eviction procedures. Respondent's claim is that the ordinance is in direct conflict with ch. 704, Stats. Particular reference is to the sections of that chapter dealing with notice terminating tenancies for failure to pay rent, 17 and termination of tenancies under a lease for one year or less. 18


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