Wis. Stat. § 9.20
Wis. Stat. § 9.20
This section implements legislative powers reserved by the people. Subject to certain conditions, a common council has no authority to make an initial judgment of the constitutionality or validity of proposed direct legislation. State ex rel. Althouse v. Madison, 79 Wis. 2d 97, 255 N.W.2d 449 (1977). A proposal that is administrative, rather than legislative in character, is not the proper subject of initiative proceedings. State ex rel. Becker v. City of Milwaukee Common Council, 101 Wis. 2d 680, 305 N.W.2d 178 (Ct. App. 1981). A city clerk has a mandatory duty to forward to the common council a sufficient petition and ordinance in proper form. State ex rel. North v. Goetz, 116 Wis. 2d 239, 342 N.W.2d 747 (Ct. App. 1983). The power of initiative does not extend to legislative decisions that have already been made by the legislative body. Schaefer v. Potosi Village Board, 177 Wis. 2d 287, 501 N.W.2d 901 (Ct. App. 1993). If statutes establish procedures for the accomplishment of legislation in a certain area, an initiative may not effect legislation that would modify the statutory directives that would bind a municipality if it were legislating in the same area. Section 62.23 establishes such procedures for zoning; zoning may not be legislated or modified by initiative. An ordinance constituting a pervasive regulation of, or prohibition on, the use of land is zoning. Heitman v. City of Mauston, 226 Wis. 2d 542, 595 N.W.2d 450 (Ct. App. 1999), 98-3133. There are 4 exceptions to the sub. (4) requirement that requested direct legislation be either passed or submitted to the electors: 1) when the proposed direct legislation involves executive or administrative matters, rather than legislative ones; 2) when it compels the repeal of an existing ordinance, or compels the passage of an ordinance in clear conflict with existing ordinances; 3) when it seeks to exercise legislative powers not conferred on a municipality; and 4) when it would modify statutorily prescribed directives that would bind a municipality if it were attempting to legislate in the same area. Mount Horeb Community Alert v. Village Board of Mt. Horeb, 2002 WI App 80, 252 Wis. 2d 713, 643 N.W.2d 186, 01-2217. Mandamus is the appropriate action when a city council refuses either option of sub. (1) Mount Horeb Community Alert v. Village Board of Mt. Horeb, 2002 WI App 80, 252 Wis. 2d 713, 643 N.W.2d 186, 01-2217. A proposed ordinance, initiated by a group of citizens, to require a village 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 was an appropriate subject of direct legislation. Mount Horeb Community Alert v. Village Board of Mt. Horeb, 2003 WI 100, 263 Wis. 2d 544, 665 N.W.2d 229, 01-2217. Section 893.80(1) (b), which requires the filing of a notice of claim before an action may be commenced against a municipality, did not apply to an action for mandamus seeking to compel a city council to comply with this section. Oak Creek Citizen's Action Committee v. City of Oak Creek, 2007 WI App 196, 304 Wis. 2d 702; 738 N.W.2d 168, 06-2697. A "concise statement" under sub. (6), properly construed, means a brief statement of the general purpose of the proposed ordinance. It is not required that the ballot must contain every essential element of the proposed ordinance. Metropolitan Milwaukee Association of Commerce, Inc. v. City of Milwaukee, 2011 WI App 45, 332 Wis. 2d 459, 798 N.W.2d 287, 09-1874. When an ordinance was never implemented because an injunction was issued and 2 years passed before the injunction was vacated, the 2-year time period excluded the time between the issuance of an injunction and its vacation. In that circumstance, returning the parties to the position they were in as of the date on which the temporary injunction is the only reasonable construction of sub. (8). Metropolitan Milwaukee Association of Commerce, Inc. v. City of Milwaukee, 2011 WI App 45, 332 Wis. 2d 459, 798 N.W.2d 287, 09-1874. Vox Populi: Wisconsin's' Direct Legislation Statute. Bach. Wis. Law. May 2008.