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Tuesday, September 16, 2014

City Council Operates Outside Of The Law, Power Slams Citizen Initiative. What's next?

I hope the Wisconsin attorney general's office is paying attention to what's going on in little ol' Janesville. Afterall, isn't it the AG's job to enforce state laws?

In brief, a Janesville resident didn't like the way things were going with the city's planning and spending for a new central fire station, so he took the initiative and started a petition drive to place two questions on referendum to local voters. He met the guidelines as written in state law. The petitions were deemed valid by the county clerk's office and went to the city council as per Wisconsin Statute 9.20.

That is when things got very messy.

Instead of following state statutes regarding the handling of his petitions, the city council, following some bad advice from the city attorney and the local newspaper, the Janesville Gazette, proceeded to turn the tables on the resident and his supporters. They basically said we're going to ignore you and your petitions and you'll have to sue us to make us follow the law. Apparently, the city council is banking on the notion that if they shirk the law or operate outside its parameters, they can end the process established by law. Got it? That's it in a nutshell.

Regarding petitions of direct legislation, there are state statutes that local governing bodies are expected to follow ...assuming they follow the law in the first place.

But what makes this moment in time somewhat special is it comes after a 30 day period the common council was given to deliberate over the petitions. The law is fairly specific. It outlines...

Wisconsin State Statutes Excerpt:
9.20 (4)
The common council or village board 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…
(my emphasis)

That’s the law.

But the Janesville city council followed a law the city attorney pulled out from Oz called the "take no action" law. Taking no action is not an option listed under 9.20, but that is exactly what the Janesville city council did with these petitions. They did NOT adopt the resolutions OR submit them to the county clerk, nor did they give the petitions an up or down vote within the specified 30 day time frame.

That is against the intent of the law according to the state's handbook on Direct Legislation...

Initiative and Referendum in Wisconsin Excerpt:

Limitations On Use Of Municipal Initiatives: A series of decisions by the Wisconsin Supreme Court have dealt with “Direct Legislation,” Wisconsin’s statutory term for the indirect initiative. In particular, Landt v. Wisconsin Dells, 30 Wis. 2d 470 (1966); Heider v Wauwatosa, 37 Wis. 2d 466 (1967); ans State ex rel. Althouse v Madison, 79 Wis. 2d 97 (1977) have set limits on the use of this procedure. The court ruled that:

5) If it does not enact a direct legislation proposal, the municipal board must put the question to a vote, even if it declares the measure to be invalid or likely declared unconstitutional.

That's worth repeating. The municipal board "must" put the question to a vote ...even if they declare the measure invalid or likely declared unconstitutional.

But they did not put the question to a vote and now the time is up.

The 30 day period is over and there is one week left to get the petitions on the ballot for the November General Election. This is where it all stands and time is of the essence.

Fact is, the Janesville city council put the cart before the horse AND is playing dirty pool against the electorate. And, so is the Janesville Gazette.

The question at hand isn’t about the question on the petition. The question is about the question going to the ballot box for voters to decide on. It’s also about a citizen and citizenry operating in good faith according to the law. It’s not about whether everyone agrees with a single citizen, who did his due diligence and played by the rules, or the 3500 signers who agreed with him. He met all the requirements of Wisconsin State Statute 9.20. It was up to the council to vote on the petition’s resolutions, adopt them or submit them to Janesville voters.

As a spectator, I think this episode is a very big deal for the city of Janesville. Not just because I think the council has done irreparable harm to the office and themselves, but with the message they send to others that shirking the law is a viable strategy to settle your differences.

That, much like Gov. Scott Walker, if you can find ways to circumvent laws, you can operate outside its limits and redirect the burden and pursuit back onto those who want justice. It's just bad public policy all around.

The council is also telling Janesville residents that their civic engagement and participation is meaningless and their petitions are useless as long as the council operates outside of the law.

No doubt, the city council's decision to shut down citizen initiative has its supporters, but I predict it will have a chilling effect on future civic engagement and cooperation that will likely last until there is a complete turn over of the council's membership. That's a truly sad predicament.

Stay tuned in on this one, because regardless of where these petitions are headed, it still won't be over.

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