Issue Position: They call this a home rule state?

Issue Position

From Wikipedia:
"Home rule is the power of a constituent part of a state to exercise such of the state's powers of governance within its own administrative area that have been decentralized to it by the central government. In the United States and other countries organized as federations of states, the term usually refers to the process and mechanisms of self-government as exercised by municipalities, counties, or other units of local government at the level below that of a federal state.

In the United States, some states constitutionally or legislatively grant home rule to cities, counties, and municipalities within their borders. These are called "home rule states." Local governments in home rule states are free to pass laws and ordinances as they see fit to further their operations, within the bounds of the state and federal constitutions. In other states, local governments have only the authority expressly granted to them by state legislatures, typically in accordance with the legal principle known as Dillon's Rule."

For 90 years, legislators have not only campaigned on their belief in Home Rule (they will call it "local control') but they brag about Wisconsin being a home rule state. Yet, once in Madison, the restrictions and mandates they place on local governing bodies has stifled much of the opportunity for any such local decision-making. So I thought it would be appropriate to research the subject and include the definition so the modern politicians might have an opportunity to learn what it is they should be adhering to.
And in 1924 Wisconsin adopted our own Home Rule amendment.
Wisconsin Constitution
Article XI, Section 3
MUNICIPAL HOME RULE

Cities and villages ... may determine their local affairs and government, subject ... to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village….

Now, you may want to skip the next section or read it when you need help falling asleep. But, it too, is important for reference when trying to understand how Wisconsin has treated home rule over the years.

History and purpose of the section

For most of the 19th Century, the legislature governed the political organization of Wisconsin cities and villages by enacting charters for their incorporation. Amendments to the Wisconsin Constitution in 1892, however, prohibited the legislature from incorporating any city or village by special act. In part, advocates of local control sought to reduce the role of the legislature in establishing the governing institutions of particular municipalities, as well as to provide cities and villages with increased authority to determine their own affairs. Indeed, by 1911, this local control movement had prevailed in enacting into law a home rule statute, permitting cities to determine their own municipal affairs. But this provision was ruled unconstitutional in State ex rel. Mueller v. Thompson, 149 Wis. 488 (1912), as an unlawful delegation of legislative power.

The only recourse for advocates of local government autonomy in the area of municipal home rule, therefore, was amending the constitution. In 1924, the Wisconsin Constitution was amended to establish municipal home rule. Municipal home rule consisted in limiting legislative power in the area of local affairs by carving out a sphere of city and village influence over local affairs and government. The amendment permitted cities and villages to determine their local affairs and government, subject only to other provisions of the Wisconsin Constitution and to legislative enactments of statewide concern that uniformly affect every city and village.

How courts currently interpret the section

The constitutional amendment made a direct grant of legislative power to cities and villages and it limited the powers of the legislature. See State ex rel. Ekern v. Milwaukee, 190 Wis. 633, 637 (1926). It is important to note, though, that the amendment did not grant home rule authority to counties or towns. Municipal home rule authority under the constitution is not an authority granted all local governmental units. Municipal home rule jurisprudence consists largely in demarcating the boundaries between those areas of local affairs and government that are within the legislative purview of cities and villages and those areas that are of statewide concern and, therefore, subject to control by the legislature.

In determining whether a city or village has properly exercised its constitutional home rule authority or whether the state has unlawfully intruded upon a city's or village's home rule authority, the courts, as in other areas of constitutional jurisprudence, are the ultimate arbiters. State ex rel. Brelsford v. Retirement Board, 41 Wis. 2d 77, 82 (1968). To establish the legal boundaries between state and local government political authority, the courts will classify a legislative enactment according to whether it is: 1) exclusively a statewide concern; 2) entirely a matter of a city's or village's local affairs and government; or 3) a "mixed bag." State ex rel. Michalek v. LeGrand, 77 Wis. 2d 520, 526-527 (1977).

If a given public policy matter is exclusively of statewide concern, the home rule constitutional amendment does not grant any city or village political authority over the matter. Van Gilder v. City of Madison, 222 Wis. 58, 83 (1936). The legislature may prohibit cities and villages from enacting ordinances in matters that are exclusively of statewide concern and it may enact laws regulating such concerns without regard to municipal home rule authority. Importantly, the home rule amendment does not prohibit the legislature from delegating to cities and villages authority over public policy matters that are of statewide concern. Wisconsin Environmental Decade, Inc. v. DNR, 85 Wis. 2d 518, 533 (1978). Any such delegation of authority, of course, may be rescinded, preempted, or regulated by the legislature. DeRosso Landfill Co. v. City of Oak Creek, 200 Wis. 2d 642, 651-652 (1996). The home rule amendment limits legislative authority in the area of local affairs and government, but it does not limit legislative authority in allowing cities and villages to regulate matters of statewide concern.

In contrast, if a given public policy is entirely a matter of a city's or village's local affairs and government, the home rule constitutional provision authorizes a city or village to regulate that matter and prohibits any legislative enactment that would preempt or make unlawful any city or village regulation over that public policy matter. Michalek, at 527-528. An exception to this rule is that the legislature may enact legislation relating to a public policy area that is under a city's or village's home rule authority if the enactment uniformly applies to every city or village in the state. See Van Gilder, at 84; City of West Allis v. Milwaukee County, 39 Wis. 2d 356, 366 (1968). Moreover, the legislature may still enact legislation in areas that are entirely a matter of local affairs and government, but only with the understanding that a city or village is free to acquiesce to the enactment or to override the enactment through adoption of a charter ordinance. The charter ordinance requirement is one imposed by state law.

Finally, if a public policy matter falls into the "mixed bag" classification in which the policy has both statewide and local government attributes, the courts must determine whether the matter is primarily or paramountly a matter of local affairs and government or the matter is primarily or paramountly a matter of statewide concern. See Ekern, at 640-641; Van Gilder, at 82; Michalek, at 528. After establishing that a given public policy is primarily or paramountly a matter of local affairs or government or a matter of statewide concern, the court will apply the appropriate test for matters that are exclusively of statewide concern or for matters that are entirely a city's or village's local affairs and government.

Although case law provides that the home rule constitutional amendment be given liberal construction in matters of local affairs, as can be seen in City of Madison v. Tolzmann, 7 Wis. 2d 570, 574 (1959), the courts, in practice, have generally been unwilling to carve out an unnecessarily large sphere of local government autonomy under the home rule constitutional amendment. In fact, there are only two cases in which local governments have successfully asserted constitutional home rule authority in the face of seemingly contrary statutes.

In Ekern, the court found that a state law limiting the height of buildings in first class cities to 125 feet was a local affair under the home rule constitutional amendment and, as a result, the city of Milwaukee could exempt itself from that state law by adopting a charter ordinance to that effect. Similarly, in Michalek, the court upheld a city of Milwaukee rent-withholding ordinance, finding that the ordinance was primarily and paramountly an enactment of a matter of local affairs and government. (In this case, though, the court found that the ordinance and state law did not conflict.)

Far more typical of constitutional jurisprudence relating to municipal home rule is the result in Van Gilder, in which the court determined that compensation paid by the city of Madison to its police officers, which would seem to be a fairly local matter, was instead primarily a matter of statewide concern and, thus, not protected from state regulation under municipal home rule authority. In sum, based on case law, it seems that the home rule constitutional amendment is not a substantial impairment to legislative enactments affecting cities and villages. The reason may be because the terms of the amendment are limited to "local affairs and government" and, for most practical purposes, "local affairs" have statewide impact and are therefore of statewide concern.

Strategies for reconciling legislation with the section

Even though the courts for the most part have not used municipal home rule authority under the constitution to limit or strike down legislative enactments, municipal home rule authority is still a limitation on legislative power. To be sure, the home rule constitutional provision is not a significant legal constraint on legislative activity in matters affecting local governments in this state. Nonetheless, in drafting legislation that will directly or indirectly impact on cities and villages, a legislator may use a couple of strategies to address issues involving municipal home rule under the constitution:

1. If the legislation involves a public policy area that is arguably a matter of local affairs and government, but the legislator intends to have state regulation of this policy area, the legislation could contain a broad public policy declaration that the subject matter of the legislation is primarily or predominantly a matter of statewide concern. While such statements are not determinative, courts have held that legislative declarations as to whether a public policy matter is a matter of statewide concern are entitled to "great weight." Van Gilder, at 73-74; Brelsford, at 86. In addition, or as an alternate drafting strategy, the legislation could be fashioned so as to apply uniformly to every city and village in this state.

2. If the legislation involves a public policy area that is arguably a matter of local affairs and government, but the legislator wants to ensure that a city or village can opt out from the application of the law, the legislation could contain a broad public policy declaration that the subject matter of the legislation is primarily or paramountly a matter of local affairs and government and could affirm that any affected city or village may adopt a charter ordinance to insulate itself from the law's application. In this way, the courts are put on alert that the legislature is not asserting that the public policy is primarily or paramountly a statewide concern for purposes of the home rule constitutional provision.

Prepared by Rick Champagne, Senior Legislative Attorney - July, 2004

Mostly I want to draw your interest to what the current legislature is doing regarding local control and home rule. The complete disregard and disrespect of locally elected officials has never been as evident as it has been during this last session. Time and again the state legislators have chosen to override and ignore the will of the people. The arrogance is outrageous but, yet, they will continue to talk of their belief in local control and smaller government.

I want to suggest that we all demand that they stand by their words and let smaller government work as it was designed to in Wisconsin. No two municipalities are alike, and only the citizens and officials elected in each municipality know what is best for them. Whether it be how many liquor licenses they want, how much fresh water is available for everyone, what tax rates they are willing to pay, what they want their schools to look like, what they want to spend for their roads, and the list goes on. What does a legislator from Madison know about sand mining in Pierce County, or what can a legislator from Racine know about the difficulties of internet access in Pepin County? In fact, what might a legislator from Dunn County know about the crime rate in Milwaukee and how to confront it? But we are faced continually with legislators that seem to think they can manage us from their perch in Madison.

Here are a few examples of proposed legislation that would be better addressed locally:
2013-2015 State Budget Proposal

Milwaukee Streetcar -- motion passed on a 12-4 party-line vote. The motion would bar utility ratepayers from paying any of the costs associated with a proposed streetcar project in Milwaukee. According to the Wisconsin League of Municipalities, this changes longstanding law allowing a municipality to reasonably regulate the use of the right of way. They are concerned that the scope of the motion is bigger than an attempt to kill the Milwaukee streetcar, potentially broadening PSC's authority to kill other municipal public works projects that may impact facilities in the right-of-way.

Sale of Certain Food and Beverages -- motion passed on a 12-4 party-line vote; prohibits local governments from limiting the sale foods and beverages based on calories, portion size, or nutritional quality.

Preempts local cell phone and radio tower ordinances - motion passed on a 12-4 party-line vote; limits the oversight of mobile phone and commercial radio towers by cities and towns; affects both rural and urban areas; Fiscal Bureau said this is a policy item with no fiscal impact slipped into the budget; this is a decision best left to local leaders.

Overriding local regulations on construction site erosion -- passed on a 12-4 party-line vote; limits the oversight of erosion at construction sites by cities and towns; Fiscal Bureau said this was a policy item with no fiscal impact.
Residency Requirements -- The Governor's budget proposal called for statewide elimination of residency laws that require municipal employees to live in the city or village where they work; under Walker's plan, local units of government would not be able to institute or enforce residency requirements for current or prospective employees; the motion offered by Rep. Nygren, which passed, 12-4, on a party-line vote would eliminate the ability of local units of government to establish residency requirements, except for police, fire, and emergency personnel, who can be required to live within 15 miles of the boundaries of the local government they work for.

Assembly Bill 85 -- Darling/Sanfelippo -- Milwaukee County Board Bill (passed into law-2013 WI Act 14)
-Changes to structure and authority of Milwaukee County Board
-Would limit Milwaukee County Board spending to 0.4% of the county's overall tax levy, with the exclusion of some expenditures; that's expected to result in cutting the board's $6.6 million budget by two-thirds
-Another provision bars the County Board from making any cuts to the county executive's budget or staff for the next three years
-Also includes a ban on supervisors receiving health or pension benefits that may conflict with state and/or federal rules
-Cuts the County Board's authority on contracts, collective bargaining, and land sales
-Supervisor pay would be cut by about 50% to $24,000 a year, if voters agree in an April 2014 referendum

Senate Bill 179/Assembly Bill 183 -- Lasee/Stroebel (Passed into law-2013 WI Act 76)
-Prohibits a municipality from enacting or enforcing an ordinance that:
-Limits a tenant's responsibility, or a landlord's right to recover, for damage or waste to, or
neglect of, the premises
-requires a landlord to communicate to tenants any information that is not required to be
communicated to tenants under federal or state law
-Changes the way that crime victims are treated in evictions; current law prohibits a lease from providing that a tenant may be evicted for any crime committed on the premises where the tenant could not have reasonable prevented the crime; this bill modifies that statute and adds a new section allowing a landlord to provide in the lease for the termination of the tenancy for any crime that is committed by anybody, making it easier to evict crime victims and potentially deterring victims of crimes from reporting them
-Allows landlords to tow vehicles without the police first to assign a ticket

Assembly Bill 8 -- Kleefisch/Kedzie (passed into law-2013 WI Act 71)
-Prohibits a local government from prohibiting hunting with a bow and arrow or crossbow within the jurisdiction of that local government; also limits the general applicability of the general prohibition against hunting within 1,700 feet of any hospital, sanatorium, or the grounds of a school so that it only applies to hunting with a firearm

Senate Bill 48/Assembly Bill 23-- Vukmir/Thiesfedlt
- Provides that if a local unit of government provides any post-retirement health care benefits, the local government must ensure that the cost of those benefits is fully funded in a segregated account on an actuarial basis or other method that complies with GAAP accounting

Senate Bill 71/Assembly Bill 83 -- Lasee/Jacque
-Limits the regulation of wind energy systems by local governments

Senate Bill 76/Assembly Bill 126 -- Darling/Kooyenga
-Would allow all UW System two and four year campuses, technical colleges, and CESAs to approve charter schools to operate independent of school districts; would allow independent charter schools performing 10% higher in achievement than their local districts for two years in a row to automatically add new campuses; would allow charter schools that do not employ district staff to opt out of the state's new educator evaluation system
-Takes authority away from local school boards

Senate Bill 318/Assembly Bill 417 -- Darling/Sanfelippo
-Forces Milwaukee to sell vacant and underused MPS buildings; would require that buildings be put on the market if less than 40% of their square footage is used for instruction or if they are not staffed full time; would compel the city to give potentially competing school operators (called "educational providers" in the bill language -- charter and voucher school operators) first shot at obtaining the empty or underused buildings or wait four years to put the facility to some other use

Senate Bill 349/Assembly Bill 476 -- Petrowski/Ballweg
-Limits the authority of local governments to regulate nonmetallic mining, such as frac sand mining

Also, I would say that the voucher school expansion is another attack on local authority and local taxpayers. Considering that this legislature guaranteed a set amount of around $7,100 for a student enrolled in a private voucher school and yet the state funding of each school district varies greatly, there is no logic involved. But worse than that, the local district must pay that amount to the voucher school even when their state aid is much lower.

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