Metropolitan Milwaukee Ass'n of Commerce, Inc. v. City of Milwaukee
Metropolitan Milwaukee Ass'n of Commerce, Inc. v. City of Milwaukee
Opinion of the Court
¶ 1. This appeal concerns an ordinance providing paid sick leave for employees within the City of Milwaukee that was enacted pursuant to the direct legislation statute, Wis. Stat. § 9.20 (2009-10).
¶ 2. We disagree with the circuit court and conclude that the proponents of the ordinance, not MMAC, are entitled to summary judgment. Specifically, we hold:
I. The ballot did comply with the statutory requirement that it contain "a concise statement of [the ordinance's] nature" under Wis. Stat. § 9.20(6).
II. The ordinance as a whole and the specific challenged provisions do not violate substantive due process because there is a rational relationship to the City's police powers.
III. The ordinance is not preempted by state statutes.
IV The ordinance is not preempted by the National Labor Relations Act (NLRA) or the Labor Management Relations Act (LMRA).
V The ordinance does not violate the state and federal constitutional prohibitions against impairment of contracts.
VI. The ordinance does not regulate activity outside the City limits.
VII. The two-year period under § 9.20(8), during which the ordinance may not be repealed or amended except by a vote of the electors, excludes the time between the circuit court's issuance of the temporary injunction and the vacation of the permanent injunction by the circuit court pursuant to this opinion.
BACKGROUND
¶ 4. Wisconsin Stat. § 9.20, the direct legislation statute, permits city and village electors to initiate legislation by submitting a petition requesting that the governing body either adopt the attached proposed ordinance without alteration or submit it to the local electors for a vote. § 9.20(1), (4). Pursuant to this statute, a coalition of organizations, led by the Milwaukee Chapter of 9to5 National Association of Working Women, initiated a drive for a petition seeking to enact a proposed ordinance requiring paid sick leave for employees within the City. After the required number of signatures were collected and the petition was filed, the Milwaukee Common Council decided not to enact the ordinance but to place it on the ballot for the November 4, 2008, election. Notice of the election containing the full text of the proposed ordinance, identified as Common Council File 080420, along with the ballot question, was published and posted as required by Wis. Stat. §§ 9.20(5) and 5.35(6)(a). The ballot question asked: "Shall the City of Milwaukee adopt Common Council File 080420, being a substitute ordinance requiring employers within the City to provide paid sick leave to employees?"
¶ 5. There were 157,117 "yes" votes (68.64%) and 71,131 "no" votes (31.16%). Pursuant to Wis. Stat. § 9.20(7), the ordinance became effective upon its publication on November 12, 2008.
¶ 7. With respect to MMAC's challenge to the ballot question, the court concluded that it did not meet the "concise statement" requirement of Wis. Stat. § 9.20(6) because it did not contain enough information about the ordinance. In particular, the court ruled, the ballot did not inform voters that the ordinance required paid sick leave for two reasons the court found were outside the commonly accepted understanding of sick leave: to seek relocation due to domestic or sexual violence or stalking and to prepare for or participate in a civil or criminal legal proceeding related to domestic or sexual violence. Milwaukee Code of Ordinances (MCO) § 112-5.l.c-4, c-5 (2008). The court also concluded that these two provisions were not rationally related to the police powers of the City and therefore rendered the ordinance unconstitutional. The court rejected the request of the City and of 9to5, which had been permitted to intervene, to sever these portions from the rest of the ordinance. On the remainder of MMAC's challenges to the validity of the ordinance, the court ruled against MMAC.
¶ 8. We address the following issues on 9to5's appeal:
I. Does the ballot question contain "a concise statement of [the ordinance's] nature," as required by Wis. Stat. § 9.20(6)?
II. Does the ordinance as a whole or specific challenged provisions violate substantive due process because there is no rational relationship to the City's police powers?
III. Is the ordinance preempted by a state statute, specifically, the Minimum Wage Law, Family/ Medical Leave Act, or Worker's Compensation Act?
IV Is the ordinance preempted by a federal statute, specifically the National Labor Relations Act or the Labor Management Relations Act?
V Does the ordinance violate the state and federal constitutional prohibitions against impairment of contracts?
VI. Does the ordinance regulate activity outside the City limits?
*475 VII. How does the injunction issued by the circuit court affect the two-year period under Wis. Stat. § 9.20(8), during which the ordinance may not be repealed or amended except by a vote of the electors?5
¶ 9. Because we are reviewing the grant of a motion for summary judgment, our review is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-16, 401 N.W.2d 816 (1987). A party is entitled to summary judgment if there are no genuine issues of material fact and that party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). Although our review is de novo and although we disagree with the circuit court on some of the issues, the court's extensive analysis is helpful to this court.
I. Ballot Question
¶ 10. The heart of the parties' dispute over the ballot question is the degree of specificity required by Wis. Stat. § 9.20(6), which provides: "The ordinance or resolution need not be printed in its entirety on the ballot, but a concise statement of its nature shall be printed together with a question permitting the elector to indicate approval or disapproval of its adoption."
¶ 11. 9to5 argues that the phrase "a concise statement of [the ordinance's] nature" means a concise
¶ 12. MMAC responds that more detail is required by case law establishing that the ballot must contain "every essential" element of the proposed ordinance. According to MMAC, the circuit court correctly ruled that the relocation and legal action uses of sick leave must be stated on the ballot, along with other essential elements.
¶ 13. Resolution of the parties' dispute requires us to construe Wis. Stat. § 9.20(6) in light of the case law involving the same or similar provisions. We divide our discussion into four sections. In section A, we examine the statutory language at issue — "a concise statement of [the ordinance's] nature" — and conclude that in isolation the common meaning of this phrase encompasses the constructions advanced by both parties. In section B, we discuss the case law on which the parties rely. We conclude the case law does not require, as MMAC contends and the circuit court agreed, that we employ the "every essential element" standard; but we also conclude that the case law does not provide a complete answer to the proper construction of § 9.20(6). In section C, with the guidance provided by case law, we examine the disputed phrase in its statutory context.
A. Common Meaning of Statutory Terms
¶ 14. When we construe statutory language we give it its common meaning, State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110, and we may use a standard dictionary for this purpose. Swatek v. County of Dane, 192 Wis. 2d 47, 61, 531 N.W.2d 45 (1995). We focus on the meanings of "concise" and "nature" in the phrase "a concise statement of [the ordinance's] nature."
¶ 15. The common meaning of "concise" is "marked by brevity in expression or by compact statement without elaboration or superfluous detail." Webster's Third New International Dictionary 471 (1993). 9to5 asserts that the statement of the nature of the ordinance must be brief, and this meaning fits within the first alternative meaning. MMAC, on the other hand, argues that "concise" does not necessarily mean "brief because, if there is a lengthy ordinance, the ballot question can be concise without being brief. This fits within the second alternative, "compact. . . without elaboration or superfluous detail." Id.
¶ 16. The common meaning of "nature" relevant in this context also encompasses the constructions proposed by both parties. "Nature" means "the essential character or constitution of something, . . . esp: the essence or ultimate form of something [or] the distinguishing qualities or properties of something." Webster's
¶ 17. Because the common meanings of "concise" and "nature" encompass the proposed constructions of both parties, we conclude both constructions are reasonable when the phrase is viewed in isolation. However, we do not interpret statutory language in isolation but as part of the whole statute, and this analysis includes a consideration of the purpose as expressed in the text. See Kalal, 271 Wis. 2d 633, ¶¶ 46, 48. In this case, in addition, we must consider the case law that may bear on the proper interpretation of Wis. Stat. § 9.20(6). We turn to that case law now, before examining the statutory context of § 9.20(6).
B. Case Law
¶ 18. We discuss the cases chronologically beginning with State ex rel. Elliott v. Kelly, 154 Wis. 482, 143 N.W. 153 (1913).
So long as it is reasonably clear that the electors expressed their will respecting the adoption of the ordinance, the fact that they did it somewhat inartificially should not be regarded as rendering their effort inefficient. The statute requires the ballot in such a case to contain "a concise statement of the nature" of the ordinance. Any brief collection of words which will fairly accomplish that, is sufficient.
Id. at 486 (emphasis added).
¶ 19. Although Elliott addresses the effect of an inaccuracy in the ballot statement, not the degree of detail required, the above italicized language supports 9to5's view on the meaning of the disputed language. "Any brief collection of words which will fairly accomplish [a concise statement of the nature of the ordinance]," id., suggests the "brief statement of general purpose" that 9to5 advocates rather than the more
¶ 20. The rest of the cases we discuss involve a statute governing elections on referenda, a statute that, at the time these cases were decided, also required that a "concise statement of the nature thereof' be contained on the ballot. Specifically, Wis. Stat. § 6.23(8) (1923) (1927) and (1953), since amended and now codified at § 5.64(2)(am), required that the "concise statement" be on the ballot for proposed constitutional amendments "or any measure . . . submitted to a vote of the people."
¶ 21. State ex rel. Ekern v. Zimmerman, 187 Wis. 180, 201, 204 N.W. 803 (1925), a constitutional amendment case, is the original source of the language on which MMAC relies for construing Wis. Stat. § 9.20(6) to require a statement that "reasonably, intelligently, and fairly comprise [s] or [has] reference to every essential" of the ordinance. The relevant issue in Ekern is whether the constitution permitted the legislature to delegate by statute to the Secretary of State the duty to prepare the form of the ballot question for the referen
¶ 22. Read in context, it is not apparent that the Ekern court means that the ballot question itself must "fairly comprise or have reference to every essential of the amendment." The court described the ballot question, which was one sentence, as "clear and unambiguous" and then explained that, while the whole amendment was not on the ballot, the statutory publication requirement — which did contain the whole amendment —had been satisfied. Id. at 204-05. This notice, the court stated, was "in reality a part of the submission." Id. at 205. We agree with 9to5 that this particular part of the Ekern court's analysis lends support to 9to5's position.
¶ 23. However, as MMAC correctly points out, in the subsequent case of State ex rel. Thomson v. Zimmerman, 264 Wis. 644, 659, 60 N.W.2d 416 (1953), the court unmistakably reads the "every essential" language from Ekern as addressing the sufficiency of the "concise statement" required by Wis. Stat. § 6.23(8) (1953).
¶ 24. A more significant limitation of Thomson as applied to this case is that it is not clear whether the Thomson court views the "every essential" standard as appropriate for ballot statements besides those for constitutional amendments. However, a municipal referendum case decided the very next year under Wis. Stat. § 6.23(8) (1953), City of Milwaukee v. Sewerage Commission, 268 Wis. 342, 67 N.W.2d 624 (1954), persuades us that the supreme court has not adopted the "every essential" standard outside the context of constitutional amendments.
¶ 25. City of Milwaukee applied the "concise statement" language in Wis. Stat. § 6.23(8) (1953) in the context of a referendum on whether a town should be consolidated with the City of Milwaukee. In rejecting the argument that the consolidation statute implied that a full text of the ordinance must be on the ballot, the court concluded this was not required by the phrase "concise statement of the nature of the [ordinance]."
Shall ordinance No. 732 of the city of Milwaukee, passed in accordance with section 66.02 of the Wisconsin statutes ... to consolidate the town of Lake with the city of Milwaukee in the county of Milwaukee . .. on the terms and conditions set forth therein be ratified?
Id. The court reasoned:
The primary consideration in a situation of this nature is the ascertainment of the voter's intent. It is clear that the voter was called upon to ratify the terms and conditions of the consolidation ordinance adopted by his respective government. Reference to the full ordinances was set forth in the referendum question.
Id. at 358-59 (emphasis added). The court also concluded that, based on the publication and distribution of the entire ordinance, "no voter could have been misled by the procedure employed in the submission of these questions." Id. at 359.
¶ 26. Not only did the court in City of Milwaukee not refer to Ekern or Thomson or the "every essential" standard, but the analysis in City of Milwaukee cannot be reconciled with this standard. The ballot question ruled sufficient in City of Milwaukee simply identified the proposed ordinance by number and stated its general purpose — to consolidate the two identified municipalities. The ballot question did not specify any of the terms and conditions of the proposed consolidation but simply referred to "the terms and conditions set forth [in the identified ordinance].”
¶ 27. MMAC contends that a case decided after City of Milwaukee, State ex rel. Thomson v. Peoples
¶ 28. The issue in Peoples State Bank was whether a vote on a proposed constitutional amendment was invalid because, although the ballot question was accurate, the notice of election erroneously described the effect of the proposed amendment.
¶ 29. MMAC reads Peoples State Bank as establishing the principle that the only reliable source of the voters' knowledge is the ballot question because it is
¶ 30. In summary, our review of the case law leads us to conclude that only in the context of constitutional amendments has the supreme court adopted the "every essential" standard. See Thomson, 264 Wis. at 659. The court did not apply this standard the very next year to a municipal referendum under the same statute, Wis. Stat. § 6.23(8) (1953). See City of Milwaukee, 268 Wis. at 358-59. Instead, in City of Milwaukee the court concluded that a ballot statement that identifies the ordinance by number, gives its general purpose, and refers the voter to the ordinance for "the terms and conditions," constitutes a "concise statement of the nature of the [ordinance]." Id. In light of City of Milwaukee, there is no basis for reading Thomson as overruling the Elliot court's statement that under the direct legislation statute "[a]ny brief collection of words which will fairly accomplish [a concise statement of the ordinance's nature] is sufficient." Elliott, 154 Wis. at 486.
¶ 31. However, while Elliot remains binding in interpreting Wis. Stat. § 9.20(6), it does not provide a complete analysis. That is, it tells us that § 9.20(6) requires only a "brief' statement, but it does not, except perhaps indirectly, aid in determining the meaning of "the nature [of the ordinance]." And, while the ballot
C. Statutory Context
¶ 32. There are two features of the statutory scheme of Wis. Stat. § 9.20 that are of particular significance in interpreting § 9.20(6).
¶ 33. First, the statutory scheme requires publication and posting of the entire ordinance. Several notices meeting the statutory criteria must be published before the election in newspapers that are aimed at a wide circulation. See Wis. Stat. §§ 9.20(5), 10.06(3)(f), 10.04. Certain of these notices must contain the entire text of the ordinance, along with the date of the election, the entire text of the question and an explanatory statement of the effect of either a "yes" or "no" vote. §§ 10.06(3)(f), 10.01(2)(c). In addition, a notice with this information must be posted at each polling place on election day. Wis. Stat. § 5.35(6)(a)l.
¶ 34. Second, proposed ordinances initiated by the electorate under Wis. Stat. § 9.20 may be lengthy, complex pieces of legislation. This follows from the fact that in § 9.20 the legislature has reserved local legislative powers to the people. Mount Horeb Cmty. Alert v. Village Bd., 2003 WI 100, ¶ 16, 263 Wis. 2d 544, 665 N.W.2d 229. While there are certain limitations implicit in § 9.20 regarding the subject matter of a proposed ordinance, there is no limit on the comprehensiveness or complexity of the legislative measures subject to § 9.20.
¶ 35. A statement of "every essential" element of an ordinance of this type makes for a lengthy statement, and Elliot has said that only a brief statement is required. More problematic with such complex legislation is whether there is a workable standard as to what constitutes an "essential element." Both these points are illustrated in this case.
¶ 36. MMAC's own proposals on what should have been included contain variations from one another, and
¶ 37. This last proposed statement by MMAC also highlights the problem of determining which features are essential. MMACs proposal describes the number of hours annually that employers must make available for paid sick leave, the permitted uses of paid sick leave— with specific descriptions of the relocation and legal action provisions — and the confidentiality provision. MMAC stated that this last proposal identified the "primary issues" for the voter. But why would voters be more interested in how a small portion of employees would use limited amounts of sick leave (the domestic and sexual violence related relocation and legal action uses) than in features that appear to be more basic, such as the rate at which sick leave is accrued, the carry-over-to-the-next-calendar-year provision, and the enforcement mechanism?
¶ 38. In short, when applied to complex legislation, MMAC's proposed standard creates uncertainty over what terms are properly considered "essential." It appears that the only "safe" way to fashion a ballot question under MMAC's standard is to make it nearly as complex and lengthy as the underlying legislation. However, this approach makes little sense in light of the fact that the legislature has directed that the full text be published and posted.
¶ 39. Based on our consideration of Wis. Stat. § 9.20(6) in the context of the statutory scheme and in light of Elliot's "[a] brief collection of words," we conclude the more reasonable construction of § 9.20(6) is that it requires a brief statement of the general purpose of the proposed ordinance.
¶ 40. The final step is to apply our construction of Wis. Stat. § 9.20(6) to the ballot in this case. The statement in the ballot question identifies the ordinance by number and describes it as an "ordinance requiring employers within the city to provide paid sick leave to employees." We conclude this is a brief statement of the general purpose of the ordinance and it therefore satisfies the requirement in § 9.20(6) of "a concise statement of [the ordinance's] nature."
¶ 41. We disagree with the circuit court's conclusion that two of the provisions describing permitted uses of sick leave — relocation due to domestic or sexual violence or stalking and participation in a civil or criminal legal proceeding related to domestic or sexual violence— needed to be specifically stated on the ballot. The court decided that sick leave is not commonly understood to mean time off for these reasons. In arriving at this conclusion, the court referred to statutes and regulations governing sick leave for state employees
¶ 43. As for the circuit court's and MMAC's suggestion that leave for the purposes of relocation and legal action cannot reasonably be considered sick leave and must be some other kind of leave, we disagree. In the next section, we conclude that these two provisions have a rational relationship to the health (as well as to the safety and general welfare) of the City's residents. While that constitutional analysis is distinct from the issue of construing Wis. Stat. § 9.20(6), that rational relationship necessarily means that time off for these two purposes may reasonably be viewed as related to health.
¶ 44. In summary, we conclude the ballot question contains a statement that complies with Wis. Stat. § 9.20(6).
II. Police Powers/Substantive Due Process
¶ 45. MMAC challenges the ordinance on the ground that it is not a valid exercise of the City's police powers. The circuit court concluded that the objective of the ordinance is to "protect the public welfare, health, safety and prosperity of the City in order to ensure a decent and healthy life for the people of the City and their families" and that this objective is limited, by the findings in the "whereas" clauses of the ordinance, to "traditional health conditions and related needs." The
¶ 46. 9to5 argues on appeal that the circuit court applied an incorrect standard because it required that the ordinance itself explain how these two particular provisions relate to the purpose of the ordinance and because it did not accord the deference required when a legislative enactment is challenged as outside the police powers. According to 9to5, the correct standard is whether these two provisions — and the other provisions in the ordinance — bear a rational relationship to any legitimate municipal objective, which, under Wis. Stat. § 62.11(5), includes "the health, safety, and welfare of the public." A proper application of the correct standard, asserts 9to5, results in the conclusion that these two provisions, like the rest of the ordinance, are rationally related to the health, safety, and welfare of the people of the City.
¶ 47. MMAC responds that the circuit court correctly considered the stated objectives of the ordinance to circumscribe the purposes that may be considered in the analysis but erred in concluding that only the relocation and legal action provisions were invalid. According to MMAC, the ordinance as a whole and particular provisions of the ordinance lack a rational relationship to the City's police powers.
¶ 48. In the following subsections we first explain the applicable legal standard and then apply this standard to MMAC's challenges to the ordinance.
A. Legal Standard
¶ 49. When a challenge to the exercise of police powers is directed at the legislative means employed,
¶ 50. In this case there is no dispute that the City has the power to legislate for the purposes of the health, safety, and welfare of the public. See Wis. Stat. § 62.11(5). The issue therefore is whether "the ordinance is rationally related to the public health, safety, ... or general welfare." State ex rel. Grand Bazaar Liquors, Inc. v. City of Milwaukee, 105 Wis. 2d 203, 211, 313 N.W.2d 805 (1982).
¶ 51. The circuit court's approach, and that advocated by MMAC, is inconsistent with these established principles of substantive due process analysis. The fundamental inquiry is not whether the challenged provisions in an ordinance are rationally related to the stated purpose of the ordinance but whether the challenged provisions are rationally related to any legiti
¶ 52. To be clear, the stated purposes of legislation — or, in this case, the "whereas" clauses and the findings they contain — are certainly relevant in determining whether the challenged provisions of the ordinance have a rational relationship to the City's police powers. However, they do not define the limits of our inquiry. See id. at 210 (a post hoc rationale for an ordinance is properly considered despite the testimony and evidence in the record because the focus is a reasonable person's perspective of the ordinance). Indeed, the legislation need not expressly state a rationale nor must it contain legislative findings to support the law; rather, the legislation survives the substantive due process challenge if the court can conceive of a rational basis for the legislation. State v. Radke, 2003 WI 7, ¶ 27, 259 Wis. 2d 13, 657 N.W.2d 66.
¶ 53. In support of its position, MMAC quotes from both Grand Bazaar Liquors and Ferdon v. Wisconsin Patients Compensation Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440. We conclude that neither case supports MMAC's position.
¶ 54. Grand Bazaar Liquors addresses an equal protection claim in addition to the claim that the ordinance was an arbitrary exercise of police power. In the context of discussing the ordinance's classifications, which relate to the equal protection claim, the court stated: "When faced with a challenge to a legislative classification under the rational-basis test, the court should ask, first, what the purposes of the statute are, and, second, whether the classification is rationally related to achievement of those purposes." Grand Bazaar
¶ 55. From Ferdon, an equal protection case, MMAC cites the statement that judicial review under the rational basis standard requires a "thoughtful examination of not only the legislative purpose, but also the relationship between the legislation and the purpose." Ferdon, 284 Wis. 2d 573, ¶ 77. The court then identified the legislative objectives because that would "allow [the court] to determine whether the legislatively created classifications are rationally related to achieving appropriate legislative objectives." Id., ¶ 85. Ferdon does not suggest that, when legislation is challenged on the basis that it exceeds police powers, our inquiry is limited to whether the challenged provisions are rationally related to the stated purpose of the ordinance.
¶ 56. A final — and significant — aspect of the applicable legal standard is that ordinances, like statutes, are presumed constitutional. Grand Bazaar Liquors, 105 Wis. 2d at 208. The challenger must demonstrate
B. Application of Legal Standard to the Ordinance
¶ 57. MMAC contends that the entire ordinance is unconstitutional, and, even if it is not, several particular provisions are unconstitutional and these cannot be severed. In the following subsections we describe the ordinance and then address each challenge. We conclude MMAC does not prevail on any of these challenges because it has not shown beyond a reasonable doubt that the entire ordinance or the specific provisions challenged have no rational relationship to the health, safety, and welfare of the City.
1. Ordinance overview
¶ 58. The ordinance provides that paid sick leave shall be accrued at a minimum rate of one hour for every thirty hours worked up to at least seventy-two hours in a calendar year, except that in small businesses (fewer than ten employees) the required annual amount is forty hours.
a. An employee's mental or physical illness, injury or health condition or need for medical diagnosis, care*496 or treatment of a mental or physical illness, injury or health condition or need for preventive medical care.
b. Care of a family member with a mental or physical illness, injury or health condition who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or who needs preventive medical care.
c. Absence necessary due to domestic abuse, sexual assault or stalking, provided the leave is for any of the following:
MCO § 112-5.1.a - c. The third category is broken down further:
c-1. Seek medical attention for the employee or employee's child, spouse, parent, grandparent or extended family member to recover from physical or psychological injury or disability caused by domestic or sexual violence.
c-2. Obtain services from a victim services organization.
c-3. Obtain psychological or other counseling.
c-4. Seek relocation due to the domestic or sexual violence or stalking.
c-5. Take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence.
MCO § 112-5.l.c-1 to c-5.
¶ 59. The "whereas" clauses of the ordinance state there is an absence of paid sick leave or an inadequate amount among a large number of Milwaukee employees. These clauses also identify particular problems
¶ 60. The concluding "whereas" clause states: "To safeguard the public welfare, health, safety and prosperity of Milwaukee, it is essential that all persons working in our community be able to earn paid sick days that are adequate to ensure a decent and healthy life for them and their families. Ensuring the adequacy of paid sick days for employees in Milwaukee will ensure a more stable workforce in our community and thereby benefit not only workers and their families but employers and the community as a whole."
2. Is the entire ordinance unconstitutional?
¶ 61. MMAC contends the entire ordinance is unconstitutional because no fact-finding took place. According to MMAC, the "whereas" clauses, the hearing before the Judicial and Legislative Committee of the Milwaukee Common Council, and the literature distributed by 9to5 to the electorate prior to the election in support of the ordinance are not an adequate substitute for fact-finding. MMAC also challenges the reliability of some of 9to5's materials.
¶ 63. In addition, MMAC's argument overlooks the direct legislation context of the ordinance. When the governing body chooses not to enact a proposed ordinance but to put it to a vote of the electorate, the governing body will not make findings in support of the ordinance. In this situation, the ordinance itself, materials submitted at a hearing held by the governing body, materials distributed to the electorate, and materials otherwise shedding light on the purpose of the ordinance and its relation to the municipality's police powers are all appropriate to consider in deciding if the ordinance enacted under Wis. Stat. § 9.20 has a rational relationship to the health, safety, and welfare of the people of Milwaukee. However, we emphasize that, even in the absence of such materials, the court is obligated to determine whether it can conceive of a rational relationship between a challenged direct legislation ordinance and the municipality's police powers. Id.
¶ 64. In order to address MMAC's second argument — on the unreliability of 9to5's materials — we briefly describe the materials. In support of the proposed ordinance, a number of fact sheets and an executive summary and report were released at press conferences, available on the campaign's website, and distributed to various organizations and officials. The executive summary and report of the Institute for Women's Policy Research, Valuing Good Health in
¶ 65. Some of the Lovell report's key findings are: (1) 47% of the private sector workforce in Milwaukee lacks paid sick leave; (2) paid sick days reduce the spread of contagious diseases such as the flu; (3) workers will save $1 million annually in health-care expenditures just from lower flu contagion at work; (4) getting timely medical care will save money and speed recovery; (5) savings to employers will total $38 million annually, largely from reduced costs of turnover; (6) the net savings to employers from the ordinance will be $4.10 per worker per week. The Lovell report draws upon various state and national statistics, as well as other economic and health-related studies, applies them to Milwaukee employers, and presents an itemized breakdown of each of the findings and the data relied upon.
¶ 66. The fact sheets address particular health problems — asthma in children and domestic violence— and how the ordinance would contribute to the improved health of children with asthma and victims of domestic violence.
¶ 67. MMAC contends that some of the studies relied on in the Lovell report and fact sheets are not current enough or are based on insufficiently similar populations. However, MMAC points to no factual materials supporting the proposition that the methods used in the report and fact sheets are unreasonable. Indeed, MMAC does not point to any evidence that contradicts the rationality of the link between providing paid sick leave to employees and the health, safety, or welfare of the City of Milwaukee. But even if there
¶ 68. MMAC also dismisses the testimony and submissions at the hearing before the City Council committee as "pleas from issue advocacy groups and a few testimonials." Most of the participants supported passage of the ordinance and explained the need for it from a variety of experiences. Their evident interest in having the ordinance pass does not make the information they provided irrelevant or unreliable in assessing whether the ordinance has a rational basis. It is to be expected that, for legislation such as this, there will be competing interests. Moreover, legislators routinely consider anecdotal information from citizens, and we perceive no reason why such information is problematic in a direct legislation context.
¶ 69. We recognize that some employers, both in that hearing and in affidavits presented by MMAC in the circuit court, oppose the ordinance because of the cost to them. As noted above, the Lovell report took into account not only the additional expense to employers of
3. Are the relocation and legal action provisions rationally related to a police power?
¶ 70. The proper inquiry in resolving MMAC's challenge to the relocation and legal action provisions is whether allowing employees to use paid sick leave for these purposes when they or their family members are victims of domestic abuse, sexual assault, or stalking is rationally related to the health, safety, and welfare of the people of the City.
¶ 71. First, as we have already explained, our inquiry is not limited to the purposes stated in the "whereas" clauses. Thus, we reject MMAC's argument that the absence of a specific clause or finding directed to these two provisions indicates they lack a rational relationship to the City's police powers.
¶ 72. Second, even without resort to specific evidence, it is a reasonable assumption that a person who has been a victim of domestic abuse, sexual assault, or stalking will have better physical and mental health in the future if the abuse, assault, or stalking does not occur again. Thus, it is reasonable to conclude that
¶ 73. Third, both the Lovell report and the domestic violence fact sheet, also authored by Dr. Lovell, provide support for these conclusions. These documents specify the types of services victims of domestic abuse and sexual assault may need in addition to medical care to protect their health and safety, including finding shelter and participating in the judicial process.
¶ 74. Fourth, the 1992 report by the American Medical Association, Diagnostic and Treatment Guidelines on Domestic Violence (AMA Guidelines), includes, as part of recommended treatment, referrals for services to relocate and for legal advocacy to obtain protection from ongoing or future harm.
¶ 75. Fifth, we reject MMAC's argument that the Lovell report and fact sheet and the AMA Guidelines
¶ 76. Sixth, we reject MMAC's argument that the absence of specific evidence that sick leave is necessary means there is no rational basis.
¶ 77. In summary, we conclude there is a rational relationship between the legal action and relocation provisions of the ordinance and the health and safety of employees and family members who are victims of domestic abuse, sexual assault, or stalking. In addition, the support provided in the Lovell report for a connection between paid time off for health-related reasons, on the one hand, and worker productivity and economic stability, on the other, reasonably applies to these uses of sick leave as well as the other uses. Thus, the relocation and legal action provisions are rationally related to the police powers of the health, safety, and welfare of the people of the City.
¶ 78. MMAC challenges the requirement of paid sick leave, as opposed to unpaid leave, and the requirement of a seventy-two or forty-hour annual minimum, depending on the size of the business.
III. State Law Preemption
¶ 80. MMAC contends that the ordinance is preempted by three state statutes: the Minimum Wage Law, Wis. Stat. ch. 104; the Family/Medical Leave Act, § 103.10; and the Worker's Compensation Act, ch. 102.
A. Applicable Law
¶ 81. Cities and villages have the right to "determine their local affairs and government, subject only to [the state] constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village." Wis. Const. art. XI, § 3(1). Pursuant to Wis. Stat. §§ 62.04 and 62.11(5), the legislature has given cities all powers not denied them by other statutes or the constitution. See Wisconsin's Envtl. Decade, Inc. v. DNR, 85 Wis. 2d 518, 531-33, 271 N.W.2d 69 (1978). While cities may address matters of local affairs that are also matters of statewide concern, id. at 533, this ability is limited. DeRosso Landfill Co. v. City of Oak Creek, 200 Wis. 2d 642, 651, 547 N.W.2d 770 (1996). If the State legislates on a matter of statewide concern, that legislation preempts a local ordinance in the following situations:
(1) the legislature has expressly withdrawn the power of municipalities to act; (2) [the ordinance] logically conflicts with state legislation; (3) [the ordinance] defeats the purpose of state legislation; or (4) [the ordinance] violates the spirit of state legislation.
Id. at 651-52 (footnotes omitted).
B. Minimum Wage Law
¶ 83. Wisconsin's Minimum Wage Law provides that "[a] city, village, town, or county may not enact and administer an ordinance establishing a living wage." Wis. Stat. § 104.001(2). The Department of Workforce Development (DWD) is charged with "determining the living wage, and ... carrying] out the purposes of' chapter 104 by establishing minimum wage rates. §§ 104.04, 104.01. MMAC contends that the mandated paid leave in the ordinance impermissibly requires employers to pay a higher living wage than that established by DWD. We do not agree. The minimum wage affected by the statute is defined as the hourly rate and does not consider benefits except tips, meals, and lodging. Wis. Admin. Code §§ DWD 272.001, 272.03(l)-(4), 272.04. Therefore, requiring paid sick leave does not increase the hourly wage rate as DWD has defined it.
C. Family/Medical Leave Act
¶ 84. MMAC contends that the Family/Medical Leave Act preempts the ordinance because it logically
¶ 85. MMAC also contends that the statute preempts the ordinance because the ordinance defeats the legislative purpose to make DWD the only governmental agency with regulatory authority over labor issues. However, this is not a purpose of the statute. To the contrary, Wis. Stat. ch. 103 allows municipalities to enact "[l]ocal orders," including ordinances, as long as these orders are not "unreasonable and in conflict with the order of the [DWD]." §§ 103.001(10), 103.005(7)(b).
D. Worker's Compensation Act
¶ 86. MMAC contends the Worker's Compensation Act preempts the ordinance because the statute establishes the "exclusive remedy against the employer"
IV Federal Law Preemption
¶ 87. MMAC contends the ordinance is preempted by two federal statutes: the NLRA and the LMRA.
A. National Labor Relations Act (NLRA)
¶ 88. The U.S. Supreme Court has articulated two distinct NLRA preemption principles: the Garmon
¶ 89. The Garmon doctrine forbids state regulation of activities protected under § 7 of the NLRA (generally, the right of employees to self organize and to collectively bargain) and activities prohibited under § 8 (generally, activities that interfere with the rights granted under § 7)
¶ 90. The ordinance here does not regulate the activities protected by § 7 or prohibited by § 8 of the
¶ 91. The Machinists doctrine "protects against state interference with policies implicated by the structure of the [NLRA] itself, by preempting state law and state causes of action concerning conduct that Congress intended to be unregulated." Metropolitan Life, 471 U.S. at 749. This doctrine does not preempt laws that establish minimum labor standards because such standards do not encourage or discourage the collective bargaining process but, rather, are minimum standards that "devolve on [employees] as individual workers" independent of the bargaining process and thus they do not "even inadvertently affect [the] interests implicated in the NLRA." Id. at 755. See also Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 20-21 (1987). Minimum labor standards in this context are those that affect union and nonunion employees equally. Metropolitan Life, 471 U.S. at 755. According to both 9to5 and MMAC, an additional aspect of minimum labor standards in this context is that they are laws of general application as opposed to ones affecting particular industries. See 520 S. Michigan Ave. Assocs. v. Shannon, 549 F.3d 1119, 1130 (7th Cir. 2008).
B. Labor Management Relations Act (LMRA)
¶ 93. MMAC contends that the ordinance is preempted by § 301 of the LMRA because the ordinance necessarily requires the Milwaukee Equal Rights Commission to interpret collective bargaining agreements in order to determine whether employers have satisfied the ordinance. However, this argument is based on a misunderstanding of § 301. Section 301 preemption does not invalidate a state law but instead preempts the application of a state law in the context of a particular case.
¶ 94. Section 301 applies to "[sjuits by and against labor organizations" and preempts "an application of state law . .. only if such application requires the interpretation of a collective-bargaining agreement." Lingle v. Norge Div. of Magic Chef Inc., 486 U.S. 399, 413 (1988) (emphasis added). Section 301 does not "preempt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212 (1985). Where a state law claim depends upon both the interpretation of a collective bargaining agreement and a separate state law analysis, federal law governs the interpretation of the agreement but the separate state law analysis is not thereby preempted. Lingle at 413 n.12.
V Impairment of Contracts
¶ 96. MMA.C contends the ordinance violates the Contract Clauses of the Wisconsin Constitution and the United States Constitution because the ordinance impairs the collective bargaining agreements that some of its members have.
¶ 97. Neither the Wisconsin nor the federal Contract Clause is an absolute prohibition on impairment of contracts. Allied Structural Steel Co. v. Spannaus, 438
¶ 98. In order to determine if a law violates either constitutional Contract Clause, we employ a three-part test, inquiring (1) whether the change in law substantially impairs the operation of a preexisting contract; (2) if it does, whether the legislation has a significant and legitimate public purpose; and (3) if it does, whether the legislation's impairment is reasonable and necessary to achieve that purpose. Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶¶ 55-57, 295 Wis. 2d 1, 719 N.W2d 408; Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411-12 (1983). A law that substantially impairs an existing contractual obligation does not unconstitutionally impair contracts "as long as the impairment is justified under a significant and legitimate public purpose, and the [law] is reasonable and appropriate to advance that purpose." Dairyland Greyhound, 295 Wis. 2d 1, ¶ 72 (citations omitted). MMAC, as the challenger to the ordinance, has the burden of proving beyond a reasonable doubt that the ordinance is an unconstitutional impairment of contract. Wisconsin Prof'l Police Ass'n v. Lightbourn, 2001 WI 59, ¶ 144, 243 Wis. 2d 512, 627 N.W.2d 807.
¶ 99. MMAC argues that the first part of the test is met because certain members are bound by one or more collective bargaining agreements (approximately
¶ 100. We have some questions on MMAC's factual assumptions in assessing the degree of impairment. For example, MMAC appears to overlook the fact that the collective bargaining agreements are for fixed terms of two to seven years. Only for these terms are the agreements "preexisting" for purposes of Contract Clause analysis. Many of these terms have already expired and the latest will expire in 2013. This is a significant factor in addressing the degree of impairment of each contract.
¶ 101. With respect to the second part — whether the legislation has a significant and legitimate public purpose — MMAC refers us to its argument that the ordinance lacks a rational basis. We have already rejected this argument in the context of MMAC's police powers/substantive due process challenge. Applying the same reasoning here, we conclude the ordinance has a significant and legitimate public purpose.
¶ 102. With respect to the third part of the test— whether the impairment is reasonable and necessary to achieve its purpose — MMAC argues that the requirements of the ordinance are greater than necessary to achieve its purpose. We reject this argument because MMAC incorrectly relies on cases applying the greater level of scrutiny appropriate when a state impairs its own contracts.
¶ 103. The established law is that "where the state is not a contracting party, the court should defer to the legislature's judgment as to the necessity and reasonableness of a particular measure." Chappy, 136 Wis. 2d at 190 (citing Energy Reserves, 459 U.S. at 412-13). We do not give the legislature this same deference when the challenged legislation involves the state's own contract
¶ 104. In this case, the contracts MMAC asserts are impaired are between private parties. MMAC asserts that nonetheless we should not defer to the judgments made in the ordinance on what is necessary and reasonable. The reason, according to MMAC, is that the electors' "self-interest is at stake," just as the State's self-interest is at stake when it is a party to a contract that the State's legislation impairs. However, MMAC provides no authority and no developed arguments to support this contention. We therefore conclude the ordinance here is entitled to the same deference accorded to legislation in impairment of contract cases where the State is not a party to the contract. MMAC does not argue that, if we employ this deference, the impairment of contracts is not reasonable and necessary to achieve the ordinance's purpose. Accordingly, we end the third inquiry by concluding that the ordinance is reasonable and necessary to meet its purpose.
¶ 105. In summary, we conclude that, even if the ordinance's impairment of the collective bargaining agreements is substantial, the ordinance has a significant and legitimate public purpose and the ordinance is reasonable and necessary to meet that purpose. Therefore, the ordinance does not unconstitutionally impair the collective bargaining agreements.
VI. Territorial Reach of Ordinance
¶ 106. MMAC contends that the ordinance regulates extra-territorial activities in violation of the principle that cities may not regulate activities that occur outside of their boundaries. See Safe Way Motor Coach
¶ 107. It is true, as MMAC points out, that the definition of "employer" in the ordinance does not contain any geographic limitations. See MCO § 112-1.4. However, we do not interpret statutes by focusing on terms in isolation. Kalal, 271 Wis. 2d 633, ¶ 46. The definition of "employe" does contain a geographical limitation and it expressly refers to "employer:" An "employe" is "any person who is employed within the geographic boundaries of the city by an employer...." MCO § 112-1.3.
¶ 108. When these two definitions are read together, it is clear that a person is an "employe" for purposes of the ordinance only when that person is "employed within the geographic boundaries of the city." The official notice published November 12, 2008, supports this plain reading. This notice states that the ordinance's purpose is to "safeguard the public welfare, health, safety and prosperity of Milwaukee," and that the ordinance intends to meet this purpose by "requiring] that employers benefiting from the opportunity to do business [in Milwaukee] make available to their employ
VII. Two-Year Period under Wis. Stat. § 9.20(8)
¶ 109. Because we have rejected MMAC's statutory and constitutional challenges to the ordinance, we must address the parties' dispute over the proper construction of Wis. Stat. § 9.20(8), which affects the repeal and amendment of the ordinance. Section 9.20(8) provides:
City ordinances or resolutions adopted under this section shall not be subject to the veto power of the mayor and city or village ordinances or resolutions adopted under this section shall not be repealed or amended within 2 years of adoption except by a vote of the electors. The common council or village board may submit a proposition to repeal or amend the ordinance or resolution at any election.
¶ 110. 9to5 contends that, in the event the permanent injunction against the ordinance is vacated, the parties should be placed in the position they were in before the temporary injunction was issued on February 6, 2009. 9to5 asserts that it is unreasonable and unfair to conclude the two-year statutory period con
¶ 111. The evident purpose of Wis. Stat. § 9.20(8) is to ensure that, when the electors have passed an ordinance by direct legislation, there is at least a two-year period during which that ordinance is the governing law unless the electors vote otherwise. At a minimum, this provision prevents the governing body — the body that declined to enact the legislation in the first instance —from nullifying the electors' choice by immediately repealing or amending the legislation. The question here is whether a court-imposed injunction can achieve the same nullifying effect.
¶ 112. Wisconsin Stat. § 9.20(8) does not expressly address what occurs in the situation we have here: the ordinance was never implemented because of an injunction against it and the two years will have passed before the injunction is vacated. MMAC's construction allows opponents of successful direct legislation — those who lost in the election — to keep the legislation from ever being implemented. This undermines not only the evident purpose of § 9.20(8) but also the purpose of § 9.20 as a whole. Section 9.20 " 'implements the legislative powers that have been reserved to the people' by their elected representatives in the legislature. As such, the statute cannot be interpreted so as to unduly restrict those ... powers, which 'are exercised with particular appropriateness under circumstances where the people are of the opinion that their elected representatives are not acting in response to the public will.'" Mount Horeb, 263
¶ 113. In the circumstances of this case, returning the parties to the position they were in as of the date on which the temporary injunction was issued fulfills the purpose of Wis. Stat. §§ 9.20(8) and 9.20 and is the only reasonable construction of § 9.20(8). Thus, the two-year time period guaranteed by § 9.20(8) excludes the time between February 6, 2009, and the date on which the permanent injunction is vacated in the circuit court.
CONCLUSION
¶ 114. We conclude, based on the undisputed facts, that the ordinance does not violate the statutory or constitutional provisions advanced by MMA.C. Accordingly we reverse the summary judgment granted in MMAC's favor. We remand with directions to grant summary judgment in favor of 9to5 and to vacate the permanent injunction.
By the Court. — Order reversed and cause remanded with directions.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
Wisconsin Stat. § 9.20(7) provides: "If a majority vote in favor of adoption, the proposed ordinance or resolution shall
We certified to the supreme court the issue whether the ballot question complied with the statutory requirement that it contain "a concise statement of [the ordinance's] nature," under Wis. Stat. § 9.20(6) and whether the two-year bar in § 9.20(8) against repeals or amendments of an ordinance validly adopted
The City is not an appellant. Two amicus briefs were filed in this court: one by the Wisconsin Democracy Campaign and another by the Wisconsin Coalition Against Domestic Violence, the Wisconsin Coalition Against Sexual Assault, and the National Partnership for Women and Families.
MMAC also argues that the ordinance is so vague as to violate the due process clauses of the state and federal constitutions. We do not address this argument because it is not adequately developed. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W2d 633 (Ct. App. 1992) (we need not address undeveloped arguments).
State ex rel. Elliott v. Kelly, 154 Wis. 482, 485, 143 N.W. 153 (1913), involved Wis. Stat. § 39i (1913), the first version of the direct legislation statute, enacted by 1911 Wis. Laws, ch. 513.
9to5 cites a later case decided under a subsequent version of the direct legislation statute, State ex rel. Oaks v. Brown, 211 Wis. 571, 575, 249 N.W. 50 (1933), applying Wis. Stat. § 10.43 (1931). However, this version of the statute did not contain the requirement for "a concise statement of the nature [of the
9to5 refers us to two cases decided under these statutes that we do not discuss because they do not address the degree of specificity required by the "concise statement of the nature thereof" language: Morris v. Ellis, 221 Wis. 307, 317, 266 N.W. 921 (1936) (addressing a mistake in the ballot question's formulation that the court described as "hypercritical"), and McConkey v. Van Rollen, 2010 WI 57, 326 Wis. 2d 1, 783 N.W.2d 855 (addressing whether that constitutional amendment violated the constitutional provision requiring separate votes on separate amendments).
Article XII, section 1 of the Wisconsin Constitution provides that, when the majority of the legislature agrees to a proposed amendment, "it shall... submit such proposed amendment... to the people in such manner and at such time as the legislature shall prescribe."
Currently the legislature is required to include the statement of the referendum question in the legislation approving a proposed constitutional amendment, Wis. Stat. § 13.175, and
At the times relevant to State ex rel. Thomson v. Peoples State Bank, 272 Wis. 614, 76 N.W.2d 370 (1956), and State ex rel. Thomson v. Zimmerman, 264 Wis. 644, 60 N.W.2d 416 (1953), the statute applicable to constitutional amendments, Wis. Stat. § 6.10 (1953), required the Secretary of State to prepare an explanation of the change made by a proposed constitutional amendment and attach it to the proposed amendment; this was then part of the notice required to he published at specific times before the next general election. See also Wis. Stat. § 6.11 (1953).
As already noted in the background section, there is no dispute that the required publication and posting occurred in this case.
The limitations are: "[a]n ordinance ... 1) must be legislative as opposed to administrative or executive in nature; 2) cannot repeal an existing ordinance; 3) may not exceed the legislative powers conferred upon the governing municipal body; and 4) may not modify statutorily prescribed procedures or standards." Mount Horeb Cmty. Alert v. Village Bd., 2003 WI 100, ¶ 17, 263 Wis. 2d 544, 665 N.W.2d 229 (citation omitted).
The circuit court referred to Wis. Stat. § 36.30, which governs the University of Wisconsin System and provides for "[Heave of absence ... owing to sickness ...," and to Wis. Stat. § 230.35(2), which provides for "[l]eave of absence with pay" for state employees "owing to sickness." The implementing rules for § 36.30 define "sick leave" to include absence "due to personal illness, injury, disability or pregnancy as well as attendance on a member of the immediate family of the employee whose condition or death requires the employee's direct care ...." Wis. Admin. Code § UWS 19.01.
Because direct legislation cannot exceed the powers conferred upon the municipal governing body by state law, Mount Horeb, 263 Wis. 2d 544, ¶ 26, we apply the same standard here that applies to a police power challenge to ordinances or statutes that are enacted by a legislative body.
In a challenge to a legislative classification on equal protection grounds, the lowest level of scrutiny is the rational basis test, which has been expressed in various ways but essentially asks "whether there are any real differences to distinguish the favored class . . . from other classes .. . who are ignored by the statute . . .." Ferdon v. Wisconsin Patients Comp. Fund, 2005 WI 125, ¶¶ 71-74, 284 Wis. 2d 573, 701 N.W.2d 440 (citation omitted).
Government employers are excluded from the ordinance's requirements. MCO § 112-1.4.
MMAC does not make a specific challenge to the provisions in MCO § 112-5.l.c-1 to c-3 that allow sick leave for other purposes necessitated hy domestic abuse, sexual assault, or stalking.
9to5 has submitted the AMA Guidelines on appeal. MMAC objects to this document on the ground that it was not made available to the electorate and was not submitted in the circuit court. However, as we have already explained, the court's inquiry is not limited to what was actually considered by the electorate, and the court is to determine if there is any conceivable rational basis for the ordinance. See State v. Radke, 2003 WI 7, ¶ 27, 259 Wis. 2d 13, 657 N.W.2d 66. Because our review is de novo, we may consider this document in our inquiry if it is an appropriate subject for judicial notice. See Wis. Stat. § 902.01; see also Sisson v. Hansen Storage Co., 2008 WI App 111, ¶ 11, 313 Wis. 2d 411, 756 N.W.2d 667 (an appellate court may take judicial notice when appropriate). In the absence of an objection by MMAC that this submission by 9to5 is not an accurate statement of the AMA Guidelines, we conclude it is appropriate to take judicial notice of them.
MMAC also contends that there is no evidence that paid sick leave is necessary for the relocation and legal action purposes, an argument it makes for all the permitted uses of sick leave. We address this in the next subsection.
MMAC also asserts that the distinction between large and small businesses and the adoption of ten employees as the cutoff are not supported by any findings, even if we consider the "whereas" clauses. This argument is insufficiently developed and we do not address it.
The ordinance contains a preemption clause that states: "Nothing in this chapter shall be interpreted or applied so as to
Article VI of the United States Constitution provides that the laws of the United States "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959).
Machinists v. Wisconsin Emp't Relations Comm'n, 427 U.S. 132 (1976)
29 U.S.C. §§ 157 and 158.
Article I, section 12 of the Wisconsin Constitution states: "[n]o bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed[.]" Article I, Section 10 of the United States Constitution states, in relevant part: "No state shall... pass any Bill of Attainder, ex post facto Law, or law impairing the Obligation of Contracts!!]" Although the interpretation of the contract clause of the Wisconsin Constitution does not necessarily parallel federal interpretations of the Contract Clause of the United States Constitution, our supreme court's decisions have relied upon the decisions of the United States Supreme Court in interpreting the Wisconsin contract clause. Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶ 51, 295 Wis. 2d 1, 719 N.W.2d 408.
Although MMAC does not expressly so state, it appears to presume that the ordinance would he invalid as to all employers if the ordinance violated the Contract Clauses as to any employer with a preexisting collective bargaining agreement. MMAC provides no authority on this position, and it appears inconsistent with the way in which the Court in Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 236 (1978), frames the issue: "[Wjhether the application of [the Minnesota statute] to the appellant violates the Contract Clause of the United States Constitution." (Emphasis added.) However, because we conclude MMAC has not established that the ordinance unconstitutionally impairs any of the collective bargaining agreements, we need not resolve this issue.
In addition, the estimates of the costs these employers could incur appear to assume that each employee would use each year all the sick leave mandated by the ordinance. Also, it is not apparent that all estimates take into account the fact that the ordinance allows employers who already have a paid leave policy to credit that against the ordinance's requirements, if
MMAC cites to United States Trust Co. of New York v. New Jersey, 431 U.S. 1 (1977) (repeal of legislation in which state had agreed to certain protections for holders of bonds issued by a state agency), and University of Hawai'i Professional Assembly v. Cayetano, 183 F.3d 1096, 1107 (9th Cir. 1999) (legislation allowing the state to postpone certain dates on which state employees were to be paid).
There are certain extraterritorial powers granted municipalities, but these are not relevant here. See Wis. Stat. § 66.0105.
Although we do not look at legislative history to create an ambiguity in legislation that is plain on its face, we may consult legislative history to confirm the plain meaning of the statutory language. State ex rel. Kalal v. Circuit Court for Dane County, 2004 Wl 58, ¶ 51, 271 Wis. 2d 633, 681 N.W.2d 110.
The Official Notice publishing the ordinance on November 12, 2008, states in part 3: "This ordinance shall be effective upon publication as provided in s. 9.20(7), Wis. Stats. Implementation of all provisions of this ordinance shall be accomplished no later than 90 days following publication." Neither party addresses this provision. In particular, neither party addresses how this provision should be applied in the circumstances that will exist when the injunction is vacated and, for purposes of Wis. Stat. § 9.20(8), the parties are returned to the positions they were in on the date the temporary injunction was issued.
Reference
- Full Case Name
- Metropolitan Milwaukee Association of Commerce, Inc., Plaintiff-Respondent v. City of Milwaukee, 9to5 National Association of Working Women, Milwaukee Chapter, Intervenor-Defendant-Appellant.
- Cited By
- 3 cases
- Status
- Published