Wisconsin Supreme Court divided on Milwaukee ordinance case, sends back to appeals court 

By Joe Forward, Legal Writer, State Bar of Wisconsin

Oct. 14, 2010 – An equally divided Wisconsin Supreme Court has remanded to the court of appeals a case in which the Milwaukee Metropolitan Association of Commerce (MMAC) filed suit to challenge the City of Milwaukee’s Paid Sick Leave Ordinance.

In 2009, the Milwaukee County Circuit Court granted summary judgment to MMAC, concluding that the ordinance was enacted invalidly and was unconstitutional. The city appealed, and the appeals court certified the case to the supreme court for review.

The supreme court granted certification to review the case, but has now vacated the order granting certification in Metropolitan Milwaukee Association of Commerce v. City of Milwaukee, 2010 WI 122 (Oct. 14, 2010), sending the case back to the appeals court to determine whether to affirm or reverse the circuit court.

The ordinance and dispute 

An organization called Milwaukee 9to5 began a ballot initiative campaign to secure sick leave for employees in 2008. Voters approved the Paid Sick Leave Ordinance that was placed on the ballot later that year, and the ordinance became effective shortly thereafter.

But MMAC challenged its validity on several grounds. The circuit court concluded that the ordinance was invalid, unconstitutional, and unenforceable because the ballot question before voters did not adequately describe the ordinance, among other conclusions.

Specifically, the circuit court held that the ballot question did not inform voters that the ordinance requires employers to pay sick leave to those seeking relocation due to domestic abuse or sexual violence.

Under Wis. Stat section 9.20, the City of Milwaukee and Milwaukee 9to5 argue, “ballot statement plainly and succinctly fulfilled the statutory requirement” that the ballot present a “concise statement of its nature.”

In its appellate brief, Milwaukee 9to5 argues that “[c]ontrary to the court’s findings, leave related to domestic and sexual violence falls squarely within the purview and purpose of sick leave and an employee’s health and well-being.”

But MMAC says that under Wisconsin case law, a ballot question “must reasonably, intelligently, and fairly compromise or have reference to every essential of the amendment.” State. Ex. Rel. Thompson v. Zimmerman, 264 Wis. 644, 60 N.W.2d 416 (1953).

The ballot failed the concise statement test, MMAC argues, because it did not inform voters about sick leave relating to domestic abuse and sexual violence.”

Justices David Prosser, Patience Drake Roggensack, and Michael Gableman would uphold the circuit court’s conclusion to invalidate the ordinance. Chief Justice Shirley Abrahamson, and Justices Anne Walsh Bradley, and N. Patrick Crooks would reverse.