8/2/2019 Outline LG

1/22

Local Govt Outline Spring 2007 Prof. Morse Nathan EricksonINTRODUCTION

1. Exam Tipsa. Multiple choice, 60-80 questions, at least 1 question on every topic (29 topics on syllabus)b. Could include anything in reading, cases, statutes, lecture (but not footnotes, not statutes that are labeled SKIM)c. Points in syllabus are there for a reason. Pay attention to them.d. Text: Pick out general & majority rules & trends. We only care about minority if its WI.e. If the book says 9 benefits to zoning, thats a very good exam question.f. See sample questions from last day of class.

2. Development of LG in US & WIa. Our govt descends from English common law where king issued charters to guilds who congregated in certainareas. Then charters based on geography. Settlers brought it to US. Charter system replaced w/ statutory in 1800s

b. LG shaped by 3 major treatises:i. Thomas Cooley: LG has inherent powers derived from fed. constitutional powers (didnt catch on)

ii. McQuillan (like Cooley): current muni law bibleiii. Dillan: (opposite): State legislature is supreme. LG powers should be narrowly construed. (modern view)

UNITS AND FORMS OF LOCAL GOVERNMENT (#2)

3. Types of Public Corps: Muni & Quasi-Munia. Muni Corps (compared w/ Private Corps)

i. Like a Private Corp: state created legal entities w/ governing bodies. Can buy/sell/control property.ii. Unlike Private Corp: Created for public/political purpose (not profit). Look to purpose to distinguish!

b. Muni v. Quasi Munii. Muni: (cities & villages)

1. Incorporated2. Purpose: serve local interests3. Boundaries: created by citizens

4. Power: Broad powers. Presume power to exists unless pre-empted by state (conflict or withdrawn)5. Statute: very short statement granting broad powers

ii. Quasi Muni: (county & town)1. Not Incorporated2. Purpose: to serve state functions at local level3. Boundaries created by state

4. Power: Limited powers. Presume that power does not exist unless you can find authorization.5. Statute: very long list of expressly enumerated powers

4. Units of LG:a. Villages: (muni corp) (Wis. Stats. 61.34)i. Incorporated. Powerful board of trustees, weak village president (just does appointments).

b. Cities: (muni corp) (Wis. Stats 62.11)

i. Four classes of cities in WI based on population. (Milw. Is only 1st class. Madison has chosen not to join)ii. Governed by Mayor & Council. Council has the most power. (some cities have weak or strong mayor)

c. Counties (quasi-muni corp.)i. Created as local arm of state govt. Power in legislature w/ weak executive if over specified population.

ii. Weak power. Functions: justice, jails, courts, real estate records, corp. records, tax collection.d. Towns & Townships (quasi-muni corp): (Wis. Stats. 60.10 - 60-23)

i. Initially created in 36 sq. mile blocks in WI. Have mostly been eaten up by incorporated munis.ii. Governed by Town Board and Town Meetings:

1. Town Board: handles day to day items2. Town Meeting: (very powerfulmuch more than board)

a. Meeting of citizens (at least annually). Can choose to elect & delegate an administrator.iii. Notes:

1. New England towns are just a variation of this (less formal).2. Primary function of towns is roads. Also do some zoning.

e. Special Purpose District (SPD)i. serve a single specialized purpose (school districts, MMSD)(Quasi-muni also SPD-purpose is arm of state)

f. Public Authorities & Commissions (not discussed in class)5. Forms of LG: (organizational structures)

a. Mayor/Counsel: most traditional form. Legislature w/ an elected head.b. Manager: hire professional mgr & grant broad power. Used by cities & towns. (village would have administrator)c. Commission: (just know that it exists): governed by commission heads (police, fire)

Page 1 of 22

8/2/2019 Outline LG

2/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Ericksond. Boards (not discussed in class)

6. Trend is Toward Consolidation & Intergovernmental Cooperation (Indianapolis, Dade Co)a. WI 66.0301: Key Consolidation Statute: allows inter-governmental agreements w/o consolidating entities (broad)

TERRITORIAL COMPOSITION OF MUNICIPALITIES: Changing Borders (#3)

7. Generally:a. Division: related concept involving division of assets when one of the five actions occursb. States power over the 5 processes is plenary. Process defined by state legislature.

8. Incorporation: process for becoming a munia. Generally its a town changing to a village or city. (incorp. never affects a county)b. Requirements: min. population, rule of reasonableness (reasonable boundaries), defined community, land contiguityc. Procedure: citizen petition, survey/map, notice to affected munis, filing and approval, referendumd. WI Rules: (general rules PLUS publication reqt)

i. Notice of Intent to Circulate: Must publish notice of intent to petition in official newspaper

ii. Petition (w/ survey & map): (know these two points for exam!)1. once you sign your name it can not be removed2. can only sign up until time that petition is filed

iii. Circulation Deadline (based off of publication date)iv. File w/ Circuit Court:

1. Courts role is purely administrative (gives notice to proper people)2. Hearing: just to verify that its legally sufficient (signatures, deadlines, content reqs.)

3. If legally sufficient, court sends to Department of Administration (DOA) for opinion4. DOA validates requirements. Then 1) approves, 2) denies, 3) allow modification & refillingv. Referendum: judge certifies results & secretary of state announces incorporation

vi. 60 days allowed for challengese. Summary: WI follows general rules (deadline, signature, content). Process is notice, petition, court, DOA, secretary

9. Annexationa. Generally:

i. Legislative procedure: unlike incorporation, its handled entirely outside of the courts (unless challenged).1. If challenged, courts defer to LGs factfinding

ii. Requirements: Boundaries must be contiguous and reasonableiii. Annexed Community Needs: usually looking for access to services or to develop a new subdivision

b. WI Methods of Annexing (3 ways)i. Annexation by Petition: (initiated by landowners & voters who want to be annexed) (3 methods)

1. Direct Annexation By Unanimous Approval: (unanimousno notice or referendum needed)a. Petition by all landowners & voters in area to be annexed.b. Procedure:

i. File a copy of the petition with the muni. (has content requirements)ii. Muni time limit for approval. (must consider DOA opinion if it arrives on time)

2. Annexation by Majority:a. Publish notice of intent to circulate petitionb. Content & signature requirements (majority of both landowners & voters)c. Muni acts to determine whether it will approve (supermajority vote)

3. Annexation by Referendum:a. Publish notice of intent to circulate petitionb. Content & Signature requirement (20% of voters & 50% of landowners in area)c. Muni acts to determine whether it will approve (requires affirmative referendum & vote)

ii. Annexation by Municipalityland it does NOT own (initiated by muni)

1. Muni resolution by supermajority (2/3) vote2. Content and notice requirements of resolution3. Bring petition to circuit court4. Opportunity for landowners (in area to be annexed) to protest (action dismissed if any protest)5. Referendum6. Note: land must be contiguous

iii. Annexation by Municipalityland it DOES own (initiated by muni)1. Same as for land it does not own, except no requirement that land be contiguous (just reasonable)

iv. Town of Delavan v. City of Delavan (also Town of Sugar Creek Case v City of Elkhorn)1. Three requirements for annexation

a. Rule of Prior Precedence: First in line to meet publication reqt is first in line to annex

Page 2 of 22

8/2/2019 Outline LG

3/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Ericksonb. Rule of Reasonableness: (3 factors)

i. reasonable boundaries, demonstrable need for property, no abuse of discretion:c. Contiguity: needs some physical contact

10. Detachment: (land leaving one muni. to join another)a. Procedure:

i. Notice of intent to circulateii. Petition (signature & content requirements)

iii. File w/ clerk in BOTH munis (attaching to, and detaching from)

iv. Action by Original Muni: (timely approval needed)1. must adopt ordinance to approving detachment (supermajority vote needed)2. If approved, send certified copy to attaching muni

v. Action by New Muni: requires timely approval by supermajority votevi. Question: We later said that Detachment requires supermajority vote & referendum???

b. Ambrosia Case (detached from Menomonee Falls to join MKE)i. MF allowed Abrosia detach & become part of MKE in exchange for MKE concession on a sewer dispute.

ii. Point: Detachment is a voluntary action and detaching community can put conditions on it.11. Consolidation (merging municipalities)

a. Requirements: munis must be contiguousb. Procedure: Each munis passes an ordinance, supermajority votes & referendums (no petitions here)

12. Dissolution: Incorporated muni dissolved to become unincorporated (a town)

RELATIONSHIP OF MUNICIPALITIES TO FEDERAL GOVERNMENT (#4)

13. Muni Regulation of Federal Land (not allowed)a. Federal Govt is not subject to regulation by LGb. Fed. voluntarily pays in leau of property taxes for things like military bases. Also allow tax free muni bonds.c. Local regulations (zoning, taxation, other regulation) do not apply to federal land.

14. Federal Role in Relationship B/w LG & Statea. Generally:

i. Fed. generally does not interfere in relationship between LG & State. State has plenary power over LG.ii. Held that constitutional provisions (contracts clause, EPC, P&I) do not apply to state actions over LG.

b. Hunter v Pittsburgh (USSC)i. Facts: PN passes a law allowing consolidation w/ only a majority of a combined referendum b/w the two

communities. Pittsburgh then consolidates a smaller community who was mostly opposed to consolidationii. Holding: LG are creatures of the state. Contract clause and DPC do not interfere with that relationship.

iii. Point: State regulation of LG (like setting LG boundaries) generally isnt limited by k law, DPC, US Const.

c. City of NY v State of NY (USSC) (four exceptions to Hunter)i. Facts: LG challenges state statute on school funding as violating fed. const., state const., and civil rights act

ii. Holding: LG powers can be given/taken by the state. LG has no standing to challenge w/ 4 (5) exceptions.1. Legislature gives LG express authority to challenge2. Muni has constitutional home rule powers3. Regulation affects muni in its proprietary (non-govt biz) capacity (snow plowing, meter maids)4. Compliance w/ state rule would cause LG to violate constitution

5. (Gomillion case): Regulation interferes w/ 15th amendment voting rights of third partiesiii. Point: Same conclusion as Hunter. State has full power over LG w/ very limited exceptions.

d. Gomillion v. Lightfoot (USSC) (one more exception to Hunter)i. Facts: AL changed boundaries to segregate all black voters into one district

ii. Ruling: Despite Hunter rule, fed. Court will intervene to protect 15 th amendment voting rights

iii. Note: this is a 5th exception to for NY case. Its limited to 15th amendment voting rights.15. Federal law may preempt or limit muni power to act in some instances

a. Federal Funding Restrictions: conditions on fed. funds (e.g., transportation funds granted if certain state laws exist)

b. 14th Amendment (imposes most of the Bill of Rights on LG) limits LG use of poweri. Ruben v City of Burbank

1. Prohibited LG from using non-sectarian prayers in legislative meetings (establishment clause)ii. Religious Land Use: Statutes regulating land use by religious orgs (zoning).

c. Commerce Clause:

i. Generally: CC may pre-empt or limit LG actions that interfere with interstate commerceii. US v Prinz (Brady Bill)

1. Facts: USSC invalidates federal law requiring LG to perform background checks prior to gun sale.

Page 3 of 22

8/2/2019 Outline LG

4/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Erickson2. Holding: Fed. must have a legitimate basis in order to use CC to impose on LG or state powers

iii. Telecommunications Act (successful use of fed CC powers to limit LG)1. Upheld Fed law preventing LG from excluding installation of cell phone towers

iv. Pre-emption. Example of LG ordinances that could be challenged as federally pre-empted (fed. regs exist)1. Smoking restrictions, trans-fats in foods, no cellphones while driving

d. Other: LG actions may also be limited by international law (e.g. NAFTA) or regional (Great Lakes compact)

RELATIONSHIP OF MUNI TO STATE: General Principles (#5)

16. State control of LG is the general rulea. LG is a creature of the state. State can take power, transfer power, change LG boundaries17. Dual sovereignty is no longer an accepted principle

a. State & federal have dual sovereignty over citizens. There is no dual sovereignty w/ states & LG.b. Waller v Florida

i. Man given LG citation & prosecuted by state for a single crime. Court rules that since LG is a function ofthe state, prosecuting at both levels is double jeopardy. Case marks the end of state/LG dual sovereignty.

18. State constitutions may restrict State control over LGa. States are Restricted from passing Special Legislation on LGs

i. Special Legislation (def): law that is particular and restrictive to persons/places1. e.g., Only Ericksons may own property2. To avoid corruption, we want all legislation to apply to all similarly situated persons

ii. States use 1 of 3 methods to limit special legislations.1. No special legislation in the specified areas (WI)2. No special legislation at all3. No special legislation w/o using special procedures to pass it4. WI Rule:

a. No special legislation in 9 specific areas (amending city charters, ferry rights)b. No special legislation where general legislation already exists

iii. Federal Paving v Prudish1. Facts: Contract voided after contractor already completes the work for LG. State passes a

specialized law allowing this one particular LG to pay out of moral obligation.2. Five requirements for legislation to avoid being stuck down as specialized

a. Substantial distinctions making one class different from anotherb. Distinctions are germane to purpose of legislationc. Class must be open to new qualifiers (not based on present/past circumstances)d. Must apply equally to all members of the class

e. Characteristics of classes different enough to justify separate legislationiv. WI Summary: verify that statute not in a prohibited area & that it passes 5 point Prudish test

1. E.g., WI struck down statute barring property valuation appeals in class 1 cities (not germane)

RELATIONSHIP OF MUNICIPALITIES TO STATE: Municipal Home Rule (HR) (#7)

19. Generally:a. HR is a limitation on power of state over LG.b. Home Rule is a delegated or express grant of power from the state constitution or state statutes.c. English common law: city received a charter granting certain powers to counter power of nobles

20. Constitutional HR (narrow but powerful, granted by state constitution, purely local issues only)a. Generally:

i. CHR gives LGs power of LG to trump state statutes but only in matters of purely local concernii. CHR is a narrow power (LG rarely wins when CHR power is challenged)

b. Two Types of CHRi. Self-Executing (WI): Direct grant of power to LG that appears in the state const.

ii. Authorized: Legislature is authorized to grant HR powers and has done so.c. Limitations of CHR Powers

i. Limited by other provisions in the state constii. Limited when legislature acts on matters of statewide concern

iii. Legislature sets out the procedure for exercising HR powers (see WI 6601.01)

d. Acquiring HR Powers (two methods) /* question out to prof. morse on this Im confused */i. Charter: LG creates a local charter by following state procedures

Page 4 of 22

8/2/2019 Outline LG

5/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Ericksonii. Charter Ordinance: LG enacts charter ordinance to exercise CHR in dealing w/ a specific issue

e. Exercising HR Powers (Enacting Charter Ordinances) (WI 6601.01)

i. WI const. contains a direct grant of power to cities/villages only over local issues only.ii. Create a charter as a means of exercising LG constitutional powers to override state legislation

iii. Procedure (voting, referendum, & publication requirements)1. Declare on top that this is a charter ordinance2. Special Vote requiring 2/3 of members elect (need 5 of 7 membersSOL if 3 are dead)3. If opting out of statutes, must explicitly identify those statutes

4. Publish notice of adoption of statute (so citizens can challenge by petition or referendum)5. Notes:

a. If approved by referendum, it can only be challenged by referendumb. Changes to fire/policy, must be approved by fire/police commission

f. Typical Litigation challenging CHR powersi. If charter ordinance conflicts w/ state legislation, its only valid if issue is of purely local concern

ii. Van Gilder v Madison (CHR case)1. Facts: Charter opting out of state law requiring commn aprvl of police pension changes2. Issue: Is police pay a purely local issue? (no)3. Ruling: State has an interest in things like crime, education, and zoning, so no HR power.4. Holdings:

a. CHR applies only to local issuesno power if any bit of state concern.b. Courts determine what is local (not legislature)

iii. Example: MF used charter to use 3 year terms for local officials (state rule is 2 year terms)21. Statutory HR (broad but less powerful, granted by legislature, only in areas not pre-empted by state laws)

a. Generally:i. SHR is a power granted by state legislature to act in areas where legislature has power to act.

ii. Delegation can be to whomever legislature wants (including counties) (contrast w/ CHR-city/village only)b. Limitations on SHR Powers

i. Allows LG to act only in areas that compliment state law (i.e., where state has not yet acted)ii. State can withdraw grant by expressly revoking it by statute (e.g., LG can not create new crimes)

c. WI: WI makes broad grants authorizing cities/village to act in areas where legislature has not yet actedd. Typical Litigation challenging SHR Powers

i. Anchor S&L v EEOC (standard for evaluating an SHR case)1. Facts: claims that bank discriminated in violation of citys EEOC laws2. Issue: Does state EEOC law pre-empt citys HR power to create an EEOC law? (yes)

3. Standard for Evaluating whether SHR power is pre-empted by state actiona. Has legislature expressly withdrawn the LG power (WI bans LG income tax)?b. Does ordinance largely conflict w/ a state statute?c. Does ordinance defeat the purpose of the state legislation?d. Does ordinance go against spirit of the state legislation?

4. Notes: CHR powers would not apply here either, b/c its not a purely local concernii. Village of MF v DNR

1. Facts: Dispute over whether a waterway is subject to DNR rules. DNR refuses permit.2. Ruling: No CHR b/c waterways are a state concern. No SHR b/c state regulates streams.3. Point: Understand & distinguish restrictions on use CHR and SHR. (WI has both.)

22. Other HR Hypotheticalsa. Carbon tax on smoking & gas: No CHR b/c its state concern. No SHR b/c state expressly bans inc. & sales taxes.b. Ban on transfats: No CHR b/c its a state concern. Maybe SHR (we allow LG smoking bansdoes state regulate?)

MUNICIPAL POWERS (Non-HR Powers): General Principles (#6)

23. Generally: (I think we call these delegated powers)a. Almost all powers of LG are delegated from the state (police power, taxing, eminent domain, licensing)

24. Dillons Rulea. Dillons rule applies only to non-HR powers (i.e., always applies to towns & counties who never have HR).b. Used to determine whether a non-HR power action by a LG is ultra viresc. Dillons Rule: If power exists, it must come from one of three places

i. Expressly conferred: express grant of power by state legislatureii. Necessarily & implied: powers implied by other state grants of power (this is where we fight)

iii. Essential Powers: limited powers necessary for LG to functiond. Interpretation: Dillon initially proposed presumption of no LG power, but trend is liberal finding of implied powers

Page 5 of 22

8/2/2019 Outline LG

6/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Erickson25. Delegation of Power

a. State delegation of power to LG (2 rules)i. Cant delegate legislative or judicial powers (e.g., power to create statutes)

ii. Can delegate other powers (admin, exec, ministerial) (e.g., police) but not a complete delegation of power.1. e.g., cant delegate power to do as you wish w/ local streams. Thats a complete delegation.2. e.g., failed argument in DNR cases the delegation to DNR was a complete delegation3. Complete Delegation (def): Power w/o some limited standard such as subject to approval by

council. Some discretion OK but rules must be defined enough to be understood (not arbitrary).

a. E.g., Cant delegate unlimited power to determine location of newspaper boxes, to ticketpeople who are too noisy, or to contract w/o board oversightb. LG Legislature May Delegate (its an essential power) in 3 ways. Delegate to

i. Private Parties: can delegate biz powers (utils, MMSD) but not govt powers (set parking rules)ii. Officers/Agents: can delegate legislative powers to them but not a complete delegation

iii. Subsidiary Parties (police, atty): delegate admin. but not legis. power (enforce speed limit but not set it).

26. State v Hutchinson (Utah) (exam: treat this case as just an example, Arlington will be on the exam)a. LG creates local campaign funding ordinance. Official challenges it & court upholds as valid implied power.b. Point: shows modern trend towards liberal finding of implied LG powers

27. Review of Decisions of LG and local public officialsa. Generally: When challenging a decision, you usually file for both a common law review & and an admin. reviewb. Requirement of fairness in making decisions

i. Rule of Reasonableness: If power found to exist, assume that exercise of it is reasonable w/ 2 exceptions.

1. Governing body does not have authority to bind future bodies.a. Contract durations must be reasonable. Cant contract away LG powers (e.g. zoning)

b. Brockway v. Black River Falls: City annexation of town was found not unreasonable.2. Territorial: LG cant directly regulate beyond its borders (transient merchants are indirect)

ii. Arlington County v White (VA)will be on exam1. LG grants domestic partner rights in county health plans.2. Court finds an implied power under Dillons rule, but that exercise of power was unreasonable.

c. Judicial review of LG decisionsi. Two types of certiorari review: (common law & statutory)

ii. Common Law Review: Its a limited appeal on the record using a 4-part standard.1. Did the LG stay w/in its jurisdiction?2. Did the body act according to law?3. Did the body act arbitrarily?

4. Could the body have reasonably made this decision based on the evidence (subjective test)?iii. Statutory Review:1. Special situations where there is a statutorily defined right to review (like some zoning situations)

d. Administrative appeals procedurei. Mechanism for additional forms of review over administrative decisions

ii. WI: (known as Ch 68 Review) (Prof. suggests that we read this!it was assigned)1. e.g., Under Ch68, a licensing decision is subject to review, but a legislative decision is not

MUNICIPAL LEGISLATION (#8)

28. Types of Local Legislation (charter ordinances, ordinances, & resolutions)a. Charter Ordinance: Exercise of home rule powersb. Ordinance: formally adopted per specified proceduresc. Resolution: anything passed w/ less dignity than an ordinanced. Doctrine of Equal Dignity: Actions can only be amended by action of equal dignity (charter => ord. => resolution)

29. Rules for Drafting Legislationa. Rule: Legislation must be drafted w/ reasonable definiteness & certainty (avg. person know rights & obligations)

i. Four Justifications1. Avoid trapping people who are attempting to comply2. Due Process: Must know criteria so that it can be challenged3. Avoid arbitrary enforcement4. Provide a standard for judicial review

30. Rules for Interpreting Legislationa. Give common words their ordinary meaning (dictionary)b. Presumption of validity & constitutionality of an ordinance

i. Challenger has burden of showing unreasonableness. Court upholds if any reasonable construction.

Page 6 of 22

8/2/2019 Outline LG

7/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Ericksonc. Effective Dates

i. Ordinance w/ penalty provision not effective until PUBLISHEDii. Ordinance w/o penalty provision is effective on date specified in ordinance (but must still publish/post)

d. Frequent Issues: loitering, vagrancy, disorderly conduct are difficult to draft w/ definiteness & certainty.31. Parts of an ordinance (see handout)

a. Title: conveys essential purposeb. Preamble: (whereas) factual findings to justify the rulec. Ordaining Clause: (the magic words such as do hereby ordain) statutorily required language to act

d. Purview/body: sections that actually describe the changee. Signatures: usually signed by chief officer & countersigned by clerkf. Severability Clause

32. Procedures of Enacting:a. Meeting: Actions taken not effective unless its a valid meetingb. Quorum: Minimum number of people needed to act at a meeting

i. Common law rule is majority of members but that may be overridden by statuteii. Member count not reduced for vacancies (7 member, need 4, even if 3 offices are unfilled)

iii. Only count voting members (that usually excludes city mayors, but includes village heads)iv. Can not be counted towards quorum if you have a conflict of interest

c. Agenda: Meeting topics may only include things on agendad. Publication (posting):

i. Notice of meeting is required by sunshine lawsii. Location: sometimes dictated by statute or ordinance. Otherwise just comply w/ sunshine laws.

iii. Timing: Regular meetings often specified by statute or ordinance. Procedures exist for special meetings.e. Voting:

i. Generally need majority of voting quorum to pass (7 members, 5 show up, passes w/ 3 votes)ii. Method of voting not statutorily defined (eye, yay, nay, stand). Silence is a vote w/ majority.

f. Undoing a meeting Actioni. Motion to Reconsider: limited power to revote by person who voted in majority. Use time of original vote.

ii. Motion to Rescind: motion to undue prior action. May be raised at same or next meeting only.33. Codes & Compilations:

a. Compilation: collection of ordinances just piled sequentially by date. An ord. is still effective even if not compiled.b. Codes: collection of ordinances that are current and effective. An ord. is ineffective if not added to code.

34. Researching muni ordinancesa. Legislative History: usually kept online & hardcopy

i. WI: must maintain ordinance book, minutes book, usually also council agenda packets. Keep it all 7 years.

b. Construction of ordinances same as for statutes. Challenger has burden to show invalidity.i. Generally no deference in interpreting ordinances, unless it has been in place for a long time.

PUBLIC OFFICERS

35. Distinction b/w Officers & Employeesa. Officer: vested w/ some power of muni office. Consider 6 factors that weigh in favor of officer status.

i. Office is a sovereign power created by law (state constitution or statute) (as opposed to LG ordinance).ii. Position has some aspect of ultimate control (not subject to approval by legislature)

iii. Powers of position defined by legislation (statute or ordinance).iv. Reports directly to board or council.v. Duties are continuing in nature.

vi. Takes an oath.b. Employee (e.g., teachers)

36. Rules for Officers (usually mayors, police, city atty, judges)a. Qualification requirements for officers must be reasonable.

i. Use rationale basis for things like age (e.g., is a rationale basis for requiring young firefighters)ii. Residency Requirements: validity determination is fact & intent specific (did he intend to change it?)

iii. Must be a registered voterb. Obligations are continuous through the term. Failing one of these results in automatic vacation of office

37. Criminal liability for misuse of funds, malfeasance, misfeasance, & nonfeasance in office38. Requirements of Office

a. Bonds:b. Compensation (3 points to remember)

i. Legislature sets comp. for themselves and others by supermajority vote w/ some statutory restrictions.

Page 7 of 22

8/2/2019 Outline LG

8/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Erickson

ii. WI Rule: Cant change salary effective in your current term (not up or down)iii. WI Towns: Town meeting sets salary for town board

c. Oaths: must take an oath of office39. Obtaining/vacating office

a. Officers may be appointed or electedb. Common Law Doctrine of Incompatibility

i. Can occupy more than one office if theyre not incompatible (either physically or w/ incompatible duties)ii. Physical Incompatibility: e.g., offices have mutually exclusive residency requirements

iii. Incompatibility of Duties: Where one job is the supervises, appoints, or fund the other1. forbidden office: statute may prohibit one office from taking some other (e.g. position you created

iv. In WI an office can also be incompatible w/ your employmentv. Note: upon accepting an incompatible position, you automatically vacate the prior

c. Quo Warranto Action: challenge someones right to an office for failed qualifications or incompatibilityd. De Facto Officer: Person who gains an office by defect has actual power until he is removed

i. Protection only for person who relied on officer actions. No protection for officer himself.ii. Standard for De Facto Officer (6 criteria)

1. Must be a legally created office (if office itself created in error, theres no defacto officer)2. A defect in the election or appointment of the officer3. Person has assumed office & held it by apparent right4. Road to office was unobstructed (nobody challenged them)5. Took official actions in the office

6. Color of authority: some appearance of being properly appointed/electede. Vacancies (vacancy procedures are always statutory)i. Vacate for death or non-residency

ii. Resignation (form & delivery requirements)1. Form requirements: must be in writing, addressed & delivered to specified authority2. Effective upon delivery if another time not specified in letter3. WI allows conditional resignation (e.g., resign effective w/ appointed of replacement (messy)

iii. Removal1. Appointed: If appointed at pleasure of authority you may be removed by that authority w/o cause2. If appointed by a authority & approved by another can only remove for cause by supermajority3. Elected officials may be removed by recall election or sometime by governing body or court

iv. Expiration of Term1. Generally elected official is out at end of term even if no replacement has been elected yet2. Generally appointed officials holdover beyond term until a replacement is appointed

f. Filling Vacancies (defined by statute): either special election or appointments

PUBLIC EMPLOYEES

40. Generally:a. No right to strike, less privacy of information, get collective bargaining & right to arbitration in exchange

i. Note: If collective bargaining fails, arbitrator picks the better proposal (all or nothing deal)b. Additional constitutional protections for govt employees (e.g., cant fire for exercising free speech rights.c. Two Types of public employees (at will, & protected)d. No citizen has a vested right to public employment (but a protected employee may have property interest in his job)

41. At Will Public Employees: are generally appointed at the pleasure of an authority & can be removed42. Protected Public Employees (Civil Servants)

a. Candidates are screened, selected candidates placed on a list, employers may only hire from that list, probation prd.

b. Protected employees have a vested property right in the job & may only be terminated for cause.c. Due process is required in hiring, firing, promotion, & discipline of protected employees (requires showing of caused. Termination: may only terminate a protected employee if substantial reason, & reason related to the job

i. E.g., cop doing nude pictures was fired b/c he posed in his uniform (related to job)ii. Right to Due Process: adequate notice of termination, right to hearing/procedure, right to argue it

e. Kaiser v Board of Police & Fire Commissioni. Cop in probationary status was terminated.

ii. Holding: Probationary employee has no vested right to job & can terminate at will w/o 62.13 procedure.43. WI 62.13: Police & Firefighters (special rules for hiring/firing/layoffs)

a. Police/Fire commissions appointed by governing body to set testing procedures, candidate list, & approve disciplineb. Procedures for Termination:

Page 8 of 22

8/2/2019 Outline LG

9/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Ericksoni. Chief issues discipline, employee may challenge. Chief has burden of proof, employee has right to council

ii. Commission applies 7 part test (* know these *)1. employee knew of potential consequences, rule is reasonable, chief made reasonable effort to find

evidence, chiefs actions were fair & objective, substantial evidence to justify chiefs decision.iii. Employee appeals further to circuit court with both common law & statutory appeals

1. Statutory Appeal under 62.13: Appeal of evidentiary issues. Circuit court ruling is final.2. Common Law Writ of Cert: Appeal of legal issues. Can appeal further to appellate court.

c. Harek v Board of Police & Fire Commission :

i. Cop disciplined for abusing witness. Cop challenges on 4 basis: 1) jurisdiction, 2) body did not actaccording to law, 3) Arbitrary act, 4) Insufficient evidence. Commn & circuit rule for chief on all issues.

ii. Issues: Which issues can be further appealed to appellate court?iii. Holding: Evidentiary issues are final at circuit court (#3,4). Can appeal legal issues to appellate (#1,2).

d. Gentilli v Board of Police & Fire Commission :i. Officer disciplined & argued that ban on illegal use of drugs was too vague. Commn upheld w/ 7 part test

ii. Holding: The constitutional question of vagueness is a legal & can be further appealed to appellate.ETHICS OF PUBLIC OFFICIALS

44. Common Law Rules (in addition to statutory rules)a. Fiduciary duty to act solely for the public good.

b. Marris v Cedarburg (1993)i. Homeowner denied variance by board w/ a conflicted board member. One vote wouldnt have changed

outcome but court reversed anyway b/c the one conflicted member may have influenced other votes.

c. Old Rule: if conflicted person votes the action is void (even if it didnt affect the outcome)d. Modern Rule: if conflicted person votes, the action is void only if it affected the outcome

45. Statutory Law Rules (in addition to common law rules)a. LG may create their own statutory ethical rules (in addition to CL rules)

b. WI Civil Statutes (WI 19.59)i. WI 19.42 contains definitions necessary to analyze WI 19.59.

ii. Who is regulated? (4 groups)1. Elected Public Officials (managers, administrators) (includes candidates)2. Appointed Officials serving an indefinite term (at the pleasure of governing body)3. Appointed Officials serving a specific term4. Exceptions:

a. Ministerial Positions: duties set by law w/o any discretion (e.g., weed commissioner)b. Independent Contractors: positions filled by outside contractors (e.g., a lawyer)

c. Police and fire chief are excludediii. What is prohibited?

1. Using office for private benefit (self, immediate family, or organization associated with)a. Family: Includes spouse. Plus any other family if either provides 50% of others incomeb. Associated Org: official or immediate family owns 10%, or is Dir, officer, trustee, agent

i. Includes almost any organization except government bodies2. Benefit: includes money, promise, anything else (except political contributions)

iv. Application1. Prima facie compliance if request & comply w/ written attorney ethics opinion2. Deminimus Rule: $75/year. Also expenses that would have been reimbursed by LG anyway.3. Anything that could or would appear to affect your opinion or influence you (even if

8/2/2019 Outline LG

10/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Ericksoni. Might argue de minimus or unrelated to your job. But its a risklooks bad. Might get atty ethics opinion

b. #1B: Youre partner at a firm & do all citys legal work. Youre previous firm wants to buy you dinner.i. Independent Contract is an exception to the ethics rules. Youre in the clear.

c. #2: Alderman works for min. wage + health insurance at store that will close depending on board rezoning vote.i. Probably should not vote. Health insurance is important enough to him that it may influence his vote.

d. #2B: City atty suggests ABC for city work. The next year ABC sponsors $500k racecar for attys adult son.i. Son does not meet income test. But still a bribery issue. Factors: high cost, 1 year delay.

e. #3: City atty negotiates K w/ outside law firm. Six years later atty resigns and takes a job w/ firm to do that work.

i. good exam question quest.: maybe conflict of interest, criminal statutes, private interest in public k.f. #3B: Same as #3, but now joining as a partner so that you will profit from the K but be screened from the work.i. Private interest in public K: closer call than in 3. Also remember that conflict is strict liability rule.

ETHICS OF LG ATTORNEY

47. 20:1.1: Ethical obligation to provide competent representation48. 20:1.4: Communication: Keep client informed of decisions.

49. WI Attorney Obligations to Organizational Client (WI SC Rule 20:1.3)a. (a) Attorney represents the organization (not individuals w/in it). Duty to educate about this fact.

i. E.g., councilman opposed to a city action. Interests are not aligned. Must advise him of who client is.b. (b) Obligation to prevent harm: report up if aware that org. member may cause substantial harm to org.c. (e) Can represent entity & its agents as long as no conflict of interest.d. Difficult situation where LG attorney duties conflict with another duty to act for the public good.

50. Conflict of Interest Generally (20:1.7)a. May not represent adverse interest (economic or non-economic) within a corporation (or b/w multiple clients)i. E.g., cant represent a criminal that killed your brother. Cant represent board to circumvent city ordinance

51. Rules for LG Attorney Who Moves to Private Sector (20:1.11)a. People Conflict: Cant represent a client in a matter you were substantially involved in while w/ the LG.b. Information Conflict: Cant use confidential info acquired as LG atty. Cant represent client w/ adverse interest.c. Note: No imputed disqualification: Dont screen entire firm you came from/to. Just screen out you.

52. Special Rule for Prosecutors (20:3.8)a. * read these. Some apply to criminal others to muni. Understand the ones that apply to muni prosecutors.*b. Limitations on what a LG atty can say to an unrepresented person (e.g., how can he get his ticket reduced.)c. E.g., but its OK for city atty to say Yes, the judge will likely take that deal.

53. Attorney Client Privilege (WI 905.03)

a. Generally: Evidentiary rule protecting communications. Owned by client. Applies to atty & his employees.

b. History: Created to protect atty honor, but privilege now owned by client & used to promote interest of justice.c. Elements of AC Privilegei. Applies only to confidential client communications (both very & non-verbal)

ii. Confidential communication: includes only communications made in confidence (not things yelled at a bar)1. Doesnt apply to attorney communications (e.g., letters) except to the extent they reveal client info

d. Note: This is controversial nationally b/c some want all records public. WI protects them by statute.

e. In Re Grand Jury Investigation : Privilege exists even in a criminal context in 2nd circuit. (Governor corruption)i. Its not certain if the same would be true in WI. (no case law yet)

f. Reed & Ross cases: Client owns AC privilege. Public official cant waive it to protect himself.54. Client Confidentiality (20.1.6)

a. Generally: No revealing information relating to client representation (violated all the time)i. E.g., strictly applied I cant tell my wife how I know the guy at this party

b. Distinguished from WI 905.03 (AC Privilege)

i. Much broader (applies to more than just evidence), different duties & exceptions (compelled disclosure)ii. CC covers all info. From client representation, but ACP covers only client communications as evidence

c. Exceptions: potential for bodily injury/death, permissive disclosure (youre sued personally)

d. When does ACP apply in a corporate setting? (two tests) (? These seem like the same test ?)i. Control Group Test: Is employee in a position to control decision over which communication applies?

ii. Power Test: Does advice relate to something employee has power to deal with?

WI OPEN MEETINGS

55. Note: When in doubt on any of this, contact AG for an opinion.

56. WI 19.81: Declaration of Policy: Reasonable public access to all meetings. Construed liberally in favor of openness.57. WI 19.82: Definitions:

Page 10 of 22

8/2/2019 Outline LG

11/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Ericksona. To whom does it apply? (to govt bodies): (govt bodies are created by statute, rule, order, ordinance.)

i. Town Exception: Town Meetings not subject to open meetings.ii. Explicit Legislative Exceptions: Bradley Center, Lambeau Field, Petit Center

iii. Single Member Entity Exception: village atty, city inspector(b/c it takes >1 person to meet)iv. Other Exceptions: supreme court deliberations, GOP/DNC assembly caucuses.

b. When does it apply? (meetings)i. Numbers test: sufficient number of members to determine bodys action (not always a majority)

1. Negative Quorum: if 2/3 needed to pass, then 1/3 sufficient to meet numbers test

2. Rebuttable Presumption of meeting if 1/2 members are present3. Walking Quorum: when info. goes to members w/o physical gathering (e.g., phoning 4 of 7)4. Exceptions: Social & chance gatherings (ran into them at the grocery store)

ii. Purpose test: purpose must be to engage in LG businessiii. Note: No interaction reqd, just the 2 tests. Common violation when mbrs attend another public meeting.

58. WI 19.84: Open Meetings Law & Procedure:a. Place: reasonably proximate, accessible, enough seating for citizens

b. Right of Public: right to observe & record (but not to comment)c. Notice Requirement:

i. Presiding office responsible for 24 hour notice of time, place, subject matter, & any closed session itemsii. Publication: Post in an accessible place (not a locked city hall). Sometimes a grocery or post office.

1. Media is entitled to have notice sent to them. Definition of media is an issue.d. Meeting Content: Limited to what was listed in notice

59. WI 19.85 Closed Meetingsa. Exemptions to Open Meetings (know these 6 things!) (construe them narrowly)

i. Quasi-Judicial Deliberations: Must be adversarial and trial type proceeding (e.g., zoning appeals)1. Factors: Is there lawyer representation, testimony, outcomes affecting parties.

ii. Public Employee Disciplinary proceedings (loss of license, demotion, termination for teachers)iii. Employment Data: considering data of employees (considering layoffs, compensation, hiring/firing)iv. Contract Negotiations: where non-public for competitive reasons (excludes collective bargaining)v. Financial/Medical Data of individuals: where public disclosure would have substantial impact on person

vi. Litigation Strategy: applies only related to current or likely litigation of LGb. Procedure for calling a Closed Meeting

i. Must start in open sessionii. Presiding Officer Announcement: announce closed session, purpose, & exemption used. (2 methods)

1. Either make the prescribed statement, or motion for it & have it approved.

iii. Attendance: Members & necessary employees only. If multiple topics, attend only for necessary portions.c. Violations & Enforcement:

i. Complaint brought by either 1) AG, 2) local DA, 3) Private Partyii. Remedies: void the action taken, forfeitures (small fine), injunction, attorney fees (biggest expense)

iii. Note: private party may only challenge after DA or AG refuse. Usually motivated by attorney fees.d. Notes:

i. Voting in Closed Session: allowed only if integral to purpose of the closed meetingii. Reconvening after Closed Session: if returning to open session, must have listed that in notice.

iii. Closed Meeting Minutes: Include only a vague description of actions taken (b/c minutes are public)60. Technology & Open Meetings

a. Beck v Shelton : Snail mail not a meeting but telephone is. In evaluating other communications via technology(email, IM, fax) court makes fact specific determination to see if its more like mail or telephone.

PUBLIC RECORDS (WI 19.31; 19.36)61. Intro

a. Strong presumption of openness for public records.b. Custodian must preserve records (7 years) & make them available for public access.c. Public may request, inspect, or copy records. Custodian does not have to consolidatejust provide as is.

62. Record: printed or electronic info kept by an authority (includes emails, computer backups, letters received in the mail)a. Excludes drafter materials for personal use (only final is a record), personal property (family pictures), materials to

which access is limited by copyright/patent (allow access but not copies of textbooks, brochures, software)b. Excludes items exempt under state/federal law (e.g., HIPAA-medical records, library records)c. Contractors records are public if produced as part of contract w/ LG

d. Journal Sentinel v School Board : Board negotiates superintendent resignation w/ memo agreement held by attorney

Page 11 of 22

8/2/2019 Outline LG

12/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Ericksoni. Point: contractor records are public records, just as if LG had held them.

e. Includes computer records, but not computer software/processes. Metadata is contentious. Tough to split all this.

i. Florida v. Clearwater : personal emails are not public records in FL (FL standard is business records.)1. WI may be different b/c our standard is all records created or retained by official.

63. Who is the Legal Custodian? (may be different than physical custodian) (3 situations)a. An elected official is custodian for all records in his officeb. Chairman is custodian for committee recordsc. For all others, custodian must be indicated in LG public records policy

64. Requests for Public Records - Sufficiency of Requesta. Must reasonably describe requested records and scope must be reasonably limited in subject matter & time.b. Doesnt need to formally say this is a records request or explain reason for the request.c. If request is written, must respond in writing. An oral request may be responded to orally.d. Prisoners may not request. However, anonymous requests are allowed.

65. Response to Record Request: Comply or Deny Requesta. Must comply or deny as soon as practicable & without delay (usually w/in 10 days is OK)b. Valid Reasons for Denial (3 reasons)

i. Clear statutory exceptionii. Common law limitation (e.g., prosecutors records)

iii. Balancing Test (presumed right of public disclosure v. public interest in not disclosing)1. Use public meeting exemptions to test interest in confidentiality (same reasons)2. e.g., security concerns in releasing utility maps after 9/11. But only consider public interest.

3. E.g., damaged reputation exemption applies only to publics interest in that reputation.c. How to Deny Request:i. Must reply in writing if request was in writing or if requestor orally requested a written response.

ii. Written denial must come from custodian & state reasons for denial (cant expand list if challenged later)iii. Must notify requestor of their right to seek relief

d. How to Comply with Request:i. If requestor arrives in person, custodian can copy records himself or allow requestor to copy.

ii. If request comes by mail, custodian must mail them out.iii. For audio/visual media, provide a copy. For electronic, provide either electronic copy or a printout.

e. Summary of Procedure: Is request sufficient? Am I the custodian? Do I have reason to deny request?66. Fees:

a. May charge (or may waive) actual, necessary, and direct costs using lowest office wage (not the attorneys wage).b. May charge record location costs if over $50. Can not charge for separating disclosable from non-disclosable.c. Can require pre-payment if costs exceed $5.d. Customary charges are 25 cents/page and no charge for location

67. Appealsa. Mandamus: injunction ordering disclosure of the records

b. Reasonable & Actual Attorneys Fees: if you prevail on the Mandamus you get your records and fees.c. Damages of Forfeitures (rare): including punitive damages (but all of this is very rare)

68. Woznicki v Erickson:

a. Facts: Public employee charged with sex crimes. Charges dropped. s father requests personal & phone records.b. Ruling: Individual may have right to block release of personal records. (this is later clarified w/ WI 19.356)

69. WI 19.356 (restored old rules prior to Woznicki)a. No right (standing) to prevent disclosure of public records. Limited exceptions. Woznicki would fail w/ this rule.b. Procedure for allowing public official w/ personal interest to augment records prior to release.

LG FINANCING

70. Intro:

a. Financing is a delegatedpower (in statutes or constitution). LG has no inherent power to tax, incur debt, or spend.b. Timeline: Valuations effective Jan. 1, budget process begins in Fall, & tax levy is done at end of year.

71. Public Purpose Doctrine (PPD)a. Intro:

i. LG may only tax, spend, incur debt if its for a public purpose (interpreted liberally in modern times)ii. Modern PPD uses strong deference to legislature. (e.g., violation to pay for mayors landscaping).

b. Hopper v Madisoni. Is hiring an org. for social work a violation of PPD? (b/c its benefiting a private org.)

ii. Rule: Must be primarily a public purpose, but some incidental private benefit is allowed.iii. Rule: Strong deference to legislature in finding purpose. Court will attempt to find a purpose & uphold.

Page 12 of 22

8/2/2019 Outline LG

13/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Ericksoniv. Standard for PPD Test (7 criteria)

1. Course or usage of govt: what do govt usually do (police, education)2. Object for which taxes are traditionally levied3. Necessity for support & proper use of government4. Extent to which expenditure competes with private sector5. General economic benefit6. How many citizens are benefited7. Feasibility of it being handled by private sector

c. Town of Beloit v County of Rock (30 years after Hopper)i. PPD challenge to subdivision plan. Held that increase of tax base is a legitimate public purpose.ii. Point: Strong deference to legislature. Almost anything is OK under modern PPD analysis.

d. Rath v Two Rivers Community Hospitali. Facts: LG transfers land to hospital w/ condition that it reverts back if it ceases to be a hospital.

ii. Ruling: Using public funds to for health care services does not violate PPD.72. Revenue (7 categories)

a. Intro:i. Revenue includes taxes, loans, fees, fines/forfeitures, business activities (utilities), gifts/grants.

ii. Revenue powers are delegated (b/c statewide concern).b. Taxes:

i. Power to tax construed narrowly, but once found there is a heavy presumption of validityii. LG limited to taxes authorized by state. E.g., WI does not allow munis to impose sales tax.

iii. Property Taxes (ad valorem) (biggest source of LG revenue)1. TAX = ASSESSED_VALUE * TAX_RATE2. Property Assessed Values (process)

a. Assessor values property on 1/1 to find FMV. Based on visual inspection & recent sales.i. County assessment also available in WI but nobody uses it

b. Open Book Period: public opportunity to view assessment valuesc. Tax Roll: values placed on tax roll for board of review.

i. Once assessor places on the tax roll he cant correcteven if an error.d. Tax bills sent in December

3. Board of review: (appeal assessments)a. Citizen group that hears citizen challenges to assessed values.b. must challenge w/ the Board before going to courts (appeal w/ common law writ of cert)c. Board review must always be open meetings (no exceptions)

d. Standard: Must show 1) assessor error, & 2) more correct value4. Uniformity Clause: LG tax rates must be uniform (e.g., not different for industrial & residential)5. State Property Taxes: state could tax property but it would be subject to the uniformity clause

iv. Income Taxes1. Some states like NY allow LG income tax (WI does not)

v. Sales & Use Taxes1. Generally, only available to counties & stadium districts.2. Except LG may impose on hotel/motel, wheel taxes, & personal business property

vi. Rules:1. Once taxing power is found to be valid, theres a heavy presumption that any use of is valid.2. Must treat people equally. Cant waive taxes for one person or business.

c. Feesi. Not a tax. Used to recoup an expense. Critical difference b/c uniformity clause applies only taxes.

ii. Two types: regulatory & statutory

1. Regulatory Fee: to recoup cost of a particular service or regulation (e.g., building permits)2. Statutory Fee: More flexible than regulatory. Set by statute and contribute to general revenue.

iii. User Fee: Based on use (like sewer or water consumption)iv. Impact Fee: Fee on development to offset necessary infrastructure upgrades (special procedures)

1. Must do a needs assessment setting out the legal basis for the fee (limited to new impact). Thengive notice & have a hearing. Board adopts it (any amendments require a new needs assessment).

2. Limitations: subject to some limitations (just know that)3. Its a cumbersome process made difficult by developer lobbies who dont like the tax.

d. Special Assessmentsi. Based on a special benefit to the property (curb/gutter, streets, sidewalks)

ii. Its not a tax and its not tax deductible (Whitefish bay folks dont like these)

Page 13 of 22

8/2/2019 Outline LG

14/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Ericksoniii. Become a lien on the property (like delinquent taxes in that way)iv. WI (two legal basis):

1. Police Power: just show reasonableness2. Taxation Power: subject to uniformity clause

v. Special Charge: a version of a special assessment for a less permanent thing (weed removal)e. Debt

i. Generally:1. Most local debt is double tax exempt (no state or federal tax)

2. Muni borrowing must be authorized by statuteii. Debt Limits1. Statutory debt limits as 1) percentage of LG property value, & 2) percentage of revenue2. WI Debt Limit: 5% of property value w/ max of 20 years (some exceptions). Excludes util. debt.3. Contracts exceeding debt limit are void. Contractors presumed to know about LG debt limits.4. Some states require referendum as states approach limit5. Current services (short term obligations) are excluded from debt limits

iii. Two Types of LG Debt (notes & bonds)1. Muni Bonds: (long term debt) Max of 20 years.

a. General Obligation Bonds: are included in debt limitsb. Special Revenue Bonds: Only repaid w/ debt from specified source (not general revenue)c. Rules may limit time to use bond revenue to prevent abuse of double tax exempt benefitsd. Procedure for Bond Issues:

i. Noticeii. Adopt a preliminary resolution

iii. Hearing (sometimes)iv. Final Resolutionv. Closing

2. Muni Notes: (short term debt). Max of 4 or 5 years.73. Expenditures

a. Budgets: statutory procedure (WI 65.90). Must have summary, notice, hearing, amendments by supermajorityb. Spending Powers: Remember! Delegated authority, & all spending must be for a public purpose.c. Inducements to lure business (controversial)

i. Attract biz to improve land value. Biz are less intense on resources than residential (police/fire/sewer).ii. Five Ways to Induce

1. Direct Donation: give cash/credit or loan at a nominal rate. (e.g., Heres $5k if you relocate)2. Tax Exemption: probably not allowed in WI due to uniformity clause

3. Advertise: try to lure them here through marketing4. Infrastructure: build infrastructure to induce business (e.g., harbor, stadium)5. Use of LG Credit Rating:

a. Industrial Revenue Bond: Use muni credit rating & tax exempt status to get loan for bizi. Debt is a liability of the biz (not the LG). LG is just a pass-through.

ii. Must go through bonding processb. TIF (or TID):

i. Freeze property value for LG. Taxes from increased value goes towards debt.6. Economic Development Corp. (2 types)

a. Redevelopment Authority: promotes economic developmentb. Community Dev. Auth.: does more than just econ. Dev. (e.g,, multi-fam housing)c. Note: Both entities created by LG, but debt of the corps. is not debt of the LG

7. Business Improvement District (BID): Biz self-impose a fee on themselves & form dev. board.

d. Special Rules for Utilitiesi. Often monopolistic, may be privately or publicly held

ii. Subject to regulation by local, federal. & stateiii. Utilities are often granted powers of eminent domain.

LAND USE (Non-Zoning)

74. Intro:a. Five Powers for regulating property: Deed restriction, plat restriction, nuisance, building codes, zoningb. LG involvement varies. Very involved in building codes & public nuisance. Not in deeds restr. or private nuisance.

75. Deed Restrictions & Land Covenants: Landowners place on the deed to run w/ land. No LG input or enforcement.76. Plat Restrictions: LG has input & enforces these restrictions on new development.

Page 14 of 22

8/2/2019 Outline LG

15/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Erickson77. Law of Nuisance: (when someone interferes w/ right to enjoy your property)

a. Private Nuisance: (interference w/ private property)i. LG rarely gets involved in private nuisance. Only involved if the LG is damaged (not a private party)

ii. MMSD v. City of MKE1. MMSD sewer leaks were damaging MKE water pipes. MKE sues for private nuisance.2. LG may bring private nuisance if impact to public place (park), or detriment to a whole

community (e.g., slaughterhouse stinks up the whole neighborhood)b. Public Nuisance: interference w/ a public place or an entire community

i. City of MKE v. NL Industries1. LG has role in enforcing public nuisance but not private nuisance on behalf of citizens2. Distinction b/w public & private is critical (determines who pays for the case)3. Ruling: LG doesnt have to show much causation to go after lead paint co. as public nuisance.4. (also goes through elements of nuisance, maintenance of a nuisance) (need to read this case?)

c. ?? My notes are confusing. Is interference w/ a park a public or private nuisance ??78. Building Codes: (WI 62.23)

a. LG creates & enforces. Need an ordinance, public hearing, & majority vote.b. Building codes are implemented more easily than zoning codes.c. Need to bring buildings up to code whenever you pull a permit to upgrade.d. ? Effect of error by building inspector in issuing a permit (on syllabus) ?

ZONING - OVERVIEW

79. Intro:a. Zoning was initially considered an eminent domain power, but is now considered a police power.b. Zoning is creation of districts w/ uniform regulations for each to limit how property may be used. Runs w/ land.c. Heavy presumption of validity of zoning (unlike ordinances). So enacting is burdensome (protest petitions).d. Zoning Enabling Act (1920s): federal act that gave birth to zoning. Upheld in Euclid v. Amber Realty.e. Zoning is a police power (a DELEGATED power, not a home rule power)f. Purposes of zoning is health/safety/welfare, & to maintain property values (no smokestacks by residential)g. Zoning does not apply to state or federal landsh. Spot Zoning: Special rules for a small special area. Discouraged but not illegal.i. Takings: If zoning becomes too onerous it can be considered a taking (unconstitutional)j. Generally, no landowner has a vested right to existing zoning (LG may change it)

80. Uses:a. Permitted Use: complies with zoning codeb. Accessory Use: logical uses associated w/ a permitted use (like a garage in a residential zone)

c. Conditional Use: use allowed subject to certain conditionsd. Legal Non-conforming Use: grandfathered in but doesnt conform to current code

81.Nine Purposes for Zoning (p422)a. Maintain property valuesb. Stabilize & homogenize areasc. Limit Densityd. Aestheticse. Control of architecture: in harmony w/ existing neighborhood structuresf. Preserve Historic Districts: e.g., French quarterg. Preserve scenic beautyh. Promotion of Morals: setbacks for liquor stores, adult bookstoresi. Safety: e.g., flood plainsj. Preserve Natural Environment: protect shorelines

k. Note: Enhancing tax base is not by itself a valid purpose (but often bootstraps other arguments)82. Zoning Procedures (WI)

a. Village & City zoning have essentially the same process (zoning enabling act). Towns are different.b. Creating Zoning Regulations

i. Create a map of zones w/ different uses (commercial, industrial, residential, institutional)ii. Create regulation describing rules for each zone type (setbacks, use limitations)

c. Amending Zoning Regulationsi. Petition to Planning Commission

1. Filed by either 1) person w/ land interest, 2) governing body, 3) planning commissionii. Planning Commission makes recommendation to governing body

iii. Public Hearing (public can speak)

Page 15 of 22

8/2/2019 Outline LG

16/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Erickson

iv. Possible Protest Petition: (the extraordinary burden for zoning) (has format & signature requirements)v. Governing Body Vote: requires a supermajority if a valid protest petition was filed

d. Town Zoning: (depends on if board was granted village powers & if county zoning exists)i. Town meeting can authorize town board powers for zoning.ii. If county zoning exists, then town must get county permission to zone

iii. If county zoning does not exist, then town may zone like a city or villagee. Bodies involved in Zoning (3 bodies)

i. Plan Commission: advisory only

ii. Governing Body (board/council): adopts the rulesiii. Zoning Board of Appeals:

1. Issues interpretation of zoning code, issues conditional use permits, authorizes variances2. WI 62.23 allows these appeals on the record (reexamine evidence). But its never used.

f. Notes:

i. Other particular statutes may give LG special zoning powersii. Village & Cities (not towns) also have extra-territorial zoning powers (zone outside of the muni)

83. Zoning Enforcementa. Equity Action (injunction):b. Enforcement Action: an action in law. Impose financial penalty (usually fine per day)

i. Village v. Crooks (daily fine amounted to over $10k)c. Equity v. Enforcement Actions

i. Treated differently. Equity actions include concepts like unclean hands, estoppelii. Issue: Enforcement action that also seeks equitable relief

iii. Forest Co. v Goode :1. Facts: Homeowner misinformed by city inspector & successfully wins on estoppel2. Ruling: Can rely on equitable principles where there is great inequity

iv. Town of Delafield v Winkelman1. Facts: Landowner exceeds permitted use of rental property. Seek permanent variance.2. Ruling: All equitable remedies (e.g., estoppel) are available in an ordinance enforcement action

where plaintiff seeks equitable relief (injunction).

v. Village of Hobart v Brown Co .1. Facts: County relies on village approval to build incinerator. Village changes its mind.2. Ruling: Estoppel against LG is limited & should only be granted to avoid serious injustice &

where public would not be unduly harmed by granting the estoppel.

ZONING NON-CONFORMING USE

84. Legal Non-Conforming Usea. A use that was valid prior to zoning change may be allowed to continue but is expected eventually conform.b. Two Issues:

i. Physical Non-conformity: e.g., house is too tall or too close to the streetii. Non-conforming Use: e.g., zoned single family but using as multi-family

c. Landowner has burden for establishing non-conforming use (5 criteria in WI)i. Actual & Active use (i.e., it must exist & not be sporadic)

ii. Existed at the time the law changediii. Use sought must be the same or substantially similar as use at time of law changeiv. Use must be more than an incidental use of the property.v. Must be a lawful use at the time.

d. Lake Bluff Housing Partners v. City of S. MKE

i. Facts: Landowner built non-conforming AFTER zoning rules changed.ii. Ruling: For a variance, rights must be in existence at time the zoning law changed.

e. Village of MF v Vierstahleri. Facts: Ordinance said that non-use for 6 months constituted abandonment.

ii. Ruling: Abandonment destroys the legal non-conforming use.f. Village of MF v Preuss

i. Facts: Electric store owner expands his legal non-conforming use by attaching a new barn.ii. Ruling: Misuse destroys the legal non-conforming use.

g. Waukesha v Setizi. Facts: Lakefront property owner w/ non-conforming dock use expands the dock.

ii. Ruling: Gross expansion destroys legal non-conforming use.

Page 16 of 22

8/2/2019 Outline LG

17/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Ericksonh. Rehabilitation

i. WI 62.23(7): Rehabilitation of structures beyond 50% value destroys legal non-conforming useii. Use date and value of commencement of non-conforming use in the calculation.

iii. Maris v Cedarburg1. Ruling: only count structural repairs (extend useful life, not cosmetic) towards 50% rehabilitation

ZONING ADMINISTRATIVE RELIEF

85. Administrative Relief from Zoning (2 types)

a. Conditional Use (aka special exception in WI)i. Form of use allowed by ordinance but only w/ permit which may be granted (no right to have it granted)which comes with conditions attached to the use.

ii. Something unique about property that justified additional protectionsiii. Can be granted either by 1) zoning board of appeals, or 2) governing body.

1. in practice, nobody in WI authorizes the zoning board to grant. Just the governing body.iv. E.g., a drive-through is allowed w/ permit but hours of operation are restricted

b. Variancei. Authorization from zoning board for a structure or use that is otherwise non-conforming

ii. Physical Variance (aka area variance): e.g., fence on lot line, improper setbacksiii. Use Variance: e.g., commercial in a residential zone

c. Standard for Granting a Variance (from Snyder Case)i. Board my only grant variance if elements are met (4 for area variance, 5 for use variance)

1. Not contrary to public purpose2. Special conditions unique to the property (e.g., more space for 12 kids is not unique to property)3. Unnecessary Hardship if literally enforced (not self-created hardship)4. Designed to accomplish substantial justice5. (for use variances only, we also require no other reasonable use for property)

ii. More stringent standard for Use Variances (additional 5th element)1. Snyder v Waukesha

a. Owner denied use variance for a porch he already started building. Claimed unnecessaryhardship b/c he had no room for 6 kids, & porch was nearly completed already.

b. Ruling: Sets out 5 part standard (above) for use & 4 part for physical variances.c. Ruling: unnecessary hardship means the same as practical difficulty which owner

failed to meet (no feasible use). Hardship can not be self-created.

2. State v Kenosha Co. (dead law):

a. Short-lived ruling that 5 part standard used for both physical & use variances3. Ziervogel v Washington (& State v Waushara Co).a. return to Snyder standard; 5 part strict test for use & 4 part test for physical variance

SUBDIVISION & PLATTING

86. Intro:a. Platting is LG restrictions on new development of land to ensure orderly development (may require sewers)b. Land division is DELEGATED powerc. Two sets of platting regulation: statutory (WI 236.45) plus LG ordinancesd. Plan Commission (see supra) creates a master plan (non-binding guide for development).e. Smart Growth

i. New smart growth statute requires land use plan by 2010 for all LGs. Amaster plan qualifies.ii. Plan must include 9 things: 1) Issues and Opportunities, 2) Housing, 3) Transportation, 4) Utilities and

Community Facilities, 5) Economic Development, 6) Agricultural, Natural and Cultural Resources, 7) LandUse, 8) Intergovernmental Cooperation, 9) Implementation87. Authorities (2 types)

a. Approving Authorities: Approve the subdivision plats (towns, cities, villages)b. Objecting/Reviewing Authorities: No approval but may object (usually county or state DOT, sometimes WI DOC)

88. WI Builders v WI DOT: (this case will not be on exam b/c we used it as a sample question)a. DOT is an objecting authority (& for subdivisions only) & doesnt get to impose amendments on the platting.

89. Wood v City of Madison (this case will be on exam)a. Facts: city denied landowner request to split an agricultural plot into 11 residential plots. Land was in

unincorporated area outside of city & city denied using extraterritorial platting powers. Court upheld as valid use ofcity power finding that platting approvals may consider what is an appropriate use of land.

Page 17 of 22

8/2/2019 Outline LG

18/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Ericksonb. Ruling: Any land use ordinance is a legitimate basis for denial of a plat.c. Rule: In extraterritorial platting approvals, LG may consider what is an appropriate USE of landd. Note: WI 236.45 sets out other reasons for denial (ordinance, state statute)

90. Process:

a. Preliminary Platting: filing of initial drawings of sewers, roadsi. Preliminary platting process is optional. Its a benefit b/c it streamlines you through the final approval.

b. Within 90 days approving auth. send to reviewing auth. as 1) approved, 2) denied, or 3) approved w/ conditionsi. Plat is deemed approved if no action w/in 90 days

c. For approved w/ conditions, submitter returns w/in 2 years w/ complying plan & is entitled to approval w/in 60days.

d. Summary: (know for exam)i. Timelines: Its a problem if approving authority fails to approve or reviewing authority fails to object.

91. Extra-Territorial Platting: Available to cities & villages only. Power to regulate outside of their borders. (see Wood case)

MUNI LAND ACQUISITION

92. Generally:a. Nine Methods for LG Acquisition of Land (know the rule & authority for each)b. These are all delegated or express powers.c. Property acquisition may be lost in the case of 1) reverter, 2) change in use after a dedictiond. LG cant give away property. Can only xfer in return for some benefit (e.g., hospital case supra)

93. Purchase or Lease

a. LG may buy/lease land if state has expressly delegated authority (WI has granted this authority)b. It requires spending so must follow public purpose doctrine

94. Gifta. Same rules as purchase/lease but gifted land may have reversion rights (reverts back on some condition)

95. Dedicationa. Failure to use land for dedicated purpose causes it to revert back to adjoining propertiesb. E.g., if plat dedicates an area for road & LG doesnt build, the LG loses the land (?so like a easement ?)

96. Adverse Possession or Prescriptiona. Two sources of authority

i. Common Law: LG can acquire by adverse possession the same way a person canii. Statutory: statutes may authorize acquisition by prescription

97. Takings Law (4 categories)a. Exactions (related to dedications)

i. LG can require a dedication (e.g., for a park) in exchange for a regulatory approval (like a permit)ii. Constitutional limits: must be rough proportionality b/w approval sought & the exaction

b. Physical Takingsi. Physical taking or destruction of property requires compensation. E.g., Truman had army take a factory.

c. Regulatory Takingsi. Two Types

1. Traditional (ad hoc) Standard: most common situation. Uses a fact specific analysis.2. Per Se Standard: extreme cases where regulation denies all reasonable economic use of property.

ii. RW Docks & Slips v State of WI1. RW dock building spurred growth of a protected plant.2. Use per se test in only 2 situations; 1) physical occupation, or 2) regulation denies all practical use

iii. Zealy v City of Waukesha1. Rezoning renders 80% of parcel area useless.

2. WI law follows federal law (USSC rulings)3. Partial as a Whole Test: a taking is no less than 100%

iv. Notes: Takings can also be intangible (e.g., a pro. football team) or temporary.v. Inverse Condemnation: initiated by landowner seeking compensation due to LG regulatory action

d. Condemnation (eminent domain)98. Eminent Domain (aka condemnation)

a. States have this inherent authority but LG has it only if delegated. Statutes construed strictly in favor of landowner.b. Requirements: LG must show 1) necessity to meet some goal, & 2) public purpose (or maybe just public use)

i. Use for water, sewer, road. Parks may be ok too. Courts generally defer to LG on finding of necessity.ii. Can only take what is needed unless if that taking renders the rest useless.

c. Must pay just compensation for ED takings (FMV for best use + severance & relocation damages)

Page 18 of 22

8/2/2019 Outline LG

19/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Ericksoni. Severance Damages: if a partial taking renders other part less useful

ii. Relocation Expenses: if youre forcing someone to relocated. Public Use

i. Kelo v City of New London (USSC) (flexible standard, WI & majority state view)1. ED for economic development satisfies public use. Great deference for legislative findings.

ii. County of Wayne v Hathcock (minority view) (strict standard)1. public use requires showing of 1) extreme public necessity, 2) continued public oversight over

land, 3) independent facts to justify selection of this land (not based on proposed development)

2. Distinguishes liberal construction of public purpose (spending) & public use (ED)e. Procedures for ED (generally)

i. Notice, statutory method for calculating compensation, right to protest taking and/or valuationf. WI Procedures for ED

i. Generally: two procedures. They begin & end differently. Procedures must be strictly followed.ii. WI 32.05 (quick taking)

1. Generally: primarily used for sewer & road where LG needs to proceed quickly2. Begin: Board adopts a resolution setting out finding of necessity & what is being taken3. End: File document & award w/ the court which causes title to transfer.

iii. WI 32.06 (standard taking procedure)1. Begin: Adopt a resolution of necessity.2. End: Additional step after filing w/ court, go to court & get judge to order title transfer.

iv. Other necessary steps (both WI procedures use these middle steps)

1. Filing of necessity (as described above)2. Appraisal required (give it to the landowner)3. Landowner has 60 days to get his own appraisal4. At least one face to face negotiation is required5. Issue a jurisdictional offer (date of valuation, timeline for protest, timeline to accept money)

a. If landowner accepts money, he has 2 years to come back & sue for moreb. Appeal compensation first to condemnation commission. Appeal further to jury trial.c. Landowner may dispute public purpose, necessity, or compensation amount.

6. Money is paid & title is transferred.

LG CONTRACTS

99. Generallya. Delegated or express power (set out in statute or home rule powers)

b. LG only authorized to contract for a public purposec. Common law contract power applies assuming K is w/in LG authority (public purpose, properly signed)100. Limitations on LG Power to Contract (four limitations)

a. Prohibited by a specific law: contractors are presumed to know if LG acting w/in its legal authorityb. Prohibited by public policy:

i. E.g., ethics situations (unreasonable duration, conflict > $15k), exceed debt limit.ii. E.g., Cant agree by contract to exercise or not exercise zoning powers (I promise to rezone this)

c. Agent not authorized to contract: improper delegation of authority (e.g., attorney approves w/ board oversight)d. Failed to follow statutory procedures: e.g., violation of public bidding procedurese. Note: if violate one of these 4 things, K is ultra vires & can not be salvaged

101. Bidding Laws for Public Constructiona. Bid laws for public construction override general contact common law.b. Application: only applies to construction over $25k (n/a to non-construction like rental cars)c. General Rules: (WI follows general rules)

i. Must advertise, establish plans & specification (so people know how to bid), set a deadline for bids, specifyduration for open bids, must award contract to lowest responsible bidder.

ii. LG is authorized to reject all bids and start overiii. Some statues have procedures for pre-qualification of bidders (to determine responsible bidder)iv. Contractors Must File

1. Performance Bond: guarantee that contractor will complete work as promiseda. Holman Concrete Products v Hardy Construction

i. Village liable to subcontractors after general contractor bailed b/c village failedto properly secure a performance bond from general contractor.

2. Bid Bond: Guarantee that contractor will perform if awarded the bid.a. If they bail, LG uses bid bond to make up the difference b/w that bid & next lowest

Page 19 of 22

8/2/2019 Outline LG

20/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Ericksonb. James Cape & Sons v Mulcahy

i. Contractor makes honest bid error but LG refuses timely request to w/draw bid.ii. Rule: LG must hold a quasi-judicial hearing before drawing on bid bond

v. Bid Challenges: bid laws protect citizens, not bidders. Unselected bidders have no authority to challenge.102. Public Construction Liens

a. For public construction, cant get lien on property. Can only get lien on funds dedicated to the project.

LG LIABILITY

103. Generallya. LGs used to have immunity against tort, civil rights, & antitrust liability. Didnt want lawsuits raiding the treasuryor for officials to fear taking actions. Immunity was removed in 1962, but then came back as limited immunity.

b. We distinguish b/w LG acting in a govt (crime, taxation, streets) v. proprietary capacityc. LG generally has duty to defend & pay judgment of its officers & employees

104.Limited Immunity (generally, all states)a. LG not liable for punitive damages in tort or civil rights cases.

105.Torts Liability (WI 893.80)a. Generally

i. Assume no immunity. Certain types of absolute immunity.

ii. No punitive damages allowed. Damage caps of $50k per person (but $250k for accidents w/ LG vehicles)iii. Analysis: 1) are we immune? 2) what are the caps?

b. Procedure:

i. Procedure for claim against LG: 1) notice to LG alleging injury, 2) LG response, 3) Caps on recoveriesii. Notice: must serve notice w/in 120 days. Include 1) signed notice, 2) claim form indicating relief sought1. No defense if LG had actual notice & shows that LG was not prejudiced by delay

iii. LG response w/in 120 days (3 possible actions)1. Pay (subject to statutory caps), No Action, Deny (by registered mail w/ return receipt)

2. Denial limits to 6 month timeline. No action gives full statute of limitations (about 3 years).3. If immune, just deny & court will dismiss it.

c. Rules:i. Cant sue for legislative, judicial, or quasi-judicial actions. Total immunity here.

ii. Can sue in 3 areas:1. Ministerial Duties: non-discretionary things like guy who mows park lawns.2. Open & Obvious Dangers: official aware of danger so obvious action is non-discretionary3. Willful & Malicious Acts:

iii. Immunity for Public Officials (WI 895.46)1. generally an official doing his job in good faith has personal immunity (cant take his house)2. Actions against official for acts w/in LG capacity or personal acts w/in scope of employment are

paid by the LG.3. LG employee had duty to notify LG that he is being sued & must cooperate in defense.4. Courts use strong presumption that acts are w/in official duties.

106. Civil Rights Liabilitya. Generally:

i. Civil rights are a general exception to LG immunityii. Violation may occur from 1) failure to follow LG procedure, 2) enforcement of unreasonable ordinances

iii. WI statutes create no new rights. Must use federal rules to sue for civil rights.b. Monell v NY City Dept of Social Services

i. LG not immune from civil liability like a state is. Liable if discrim. is from official policy or custom.

1. Need not be formal discrim. Could be a decision from higher-up (but no respondent superior)c. Owen v City of Independencei. LG not entitled to immunity, but employee might be (from personal prosecution only)

ii. Two types of civil rights immunity:1. absolute immunity: judges, prosecutors, legislatures acting w/in capacity. (cant sue personally)

2. qualified immunity: discretionary acts by officials w/ showing that they did not violate statutory orconstitutional rights that a reasonable person would have known

d. If no immunity, go to trial & must show 3 things

i. Acted under color of state law (furthering some policy or custom, not an isolated incident)ii. Deprives of a federally protected right (statutory or constitutional)

iii. Injury (not necessarily physical)

Page 20 of 22

8/2/2019 Outline LG

21/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Ericksoniv. Note: attorney fees are available. Use state statutes of limitations.

107. Antitrust Liability

a. LG immune from antitrust on things that fall w/in state authorization (water, sewer)b. Anti-trust laws impact LG ability to regulate business, licensing, utilities, & zoning (???)

EXTRAORDINARY ACTIONS & REMEDIES

108. Generallya. Two Groups:

i. Political Process: Recall, Initiative, Referendumii. Judicial Process: Injunction, Mandamus

b. Form & Content Requirements: Each requires signatures from 25% of number who voted in gubernatorial race109.Mandamus

a. Common law extraordinary (not easily granted) writ to compel LG official to perform his dutyb. WI Rules:

i. Standard of review is discretion for trial court (abuse of discretion for appellate)ii. Five Criteria for granting a writ (see Mt Horeb & Althouse cases)

1. Clear & legal right to relief2. Positive & plain legal duty on the part of the official3. Person seeking writ is substantially damaged if not issued4. No adequate remedy in law (we mean an equitable remedy, not monetary damages)5. Duty must be mandatory (not discretionary) (e.g., cant make board vote on an issue)

110. Injunctiona. Can be an affirmative order or a prohibition. Must be a mandatory duty (not discretionary)b. Only available for a law already passed (cant prevent vote, just prevent enforcement), w/ 3 exceptions:

i. law would be clearly beyond scope of muni powerii. extreme hardship if not struck down prior to passage

iii. avoids a multiplicity of suits111.Recall

a. Force an official to run for election before natural end of term.b. WI: (content & signature requirements)

i. Signature Requirement: 25% of number who voted in last gubernatorial electionii. Content Requirement: need explanation of why person should be removed

iii. Election Process: if more than 1 person running, do a runoff election first112.Initiative & Referendum

a. Initiative: Mechanism for citizens to enact their own legislation (ordinance or statute.)i. LG may either 1) adopt or 2) put it on the ballot for citizen vote

ii. Requirements: must be legislative in nature, cannot repeal an existing ordinance, cannot exceed the powers

of muni body, and cannot modify statutorily prescribed procedures.

iii. Heitman v Mauston : initiative rejected b/c it was a zoning change for which a procedure already exists.b. Referendum: LG seeks citizen input on an issue or legislation. Can be voter or LG initiated. Two types.

i. Binding: Board required to put it on a ballot for voting if proper procedure was followed.ii. Advisory:

c. Content & Signature Requirementsd. Rules:

i. Citizens can not do by initiative or referendum what LG does not have power to doii. Limited to legislative matters (make new law), not admin mattes (existing law like an officials salary)

iii. Legislatures usually blocked from modifying for the new legislation for some time after its enactede. Note: difference b/w initiative & referendum is that initiative proposes an exact ordinance/statute to be adopted

LG CONTROL OF CRIMINAL ACTIVITY

113. Generallya. Delegated power. LG empowered only where expressly delegated & not pre-empted by state law.b. Crime & punishment & primarily state functions.

114.Can LG imprison someone for violation that would also be criminal under state law?a. Only if power has been delegated (has not been in WI, but is in IL).b. WI: may only imprison for failure to pay a forfeiture that person is able to pay. (e.g., $90 or 3 days in the pokey)

115. Characterization of power (theories on how LG is empowered)a. Generally: Characterization of power affects applicable burdens & rights (jury, self-incrim., burden, punishment)b. Civil Power (majority rule): no right to an attorney, burden is preponderance of the evidence

Page 21 of 22

8/2/2019 Outline LG

22/22

Local Govt Outline Spring 2007 Prof. Morse Nathan Ericksonc. Criminal Power (minority rule-IL): comes w/ right to an attorney, burden beyond reasonable doubtd. Quasi-Criminal Power: hybride. WI Rule: treated as civil matters (no criminal record!) but we add some additional protections.

i. Burden: intermediate burden of clear & convincing evidenceii. Opportunity for jury trial (in circuit court only) using rules of civil procedure

116. Municipal Court (for ordinance violations)a. Generally:

i. Less formal than circuit court. No requirement of transcripts. Judge is not necessarily a lawye