Wisconsin Court of Appeals upholds Milwaukee ordinance mandating paid
Statute that prevents local repeal within two years of an
ordinance's enactment date will not include the time the ordinance
was subject to injunction. But a bill that would void certain provisions
of the ordinance is pending in the Wisconsin Assembly.
By Joe Forward, Legal Writer,
State Bar of Wisconsin
March 25, 2011 – The District I Wisconsin Court of Appeals
recently reversed the Milwaukee County Circuit Court and upheld the City
of Milwaukee’s Paid
Sick Leave Ordinance, which nearly 70 percent of voters approved in
The ordinance requires private employers in the City of Milwaukee to
provide employees with paid sick leave at a minimum rate of one hour for
every 30 hours worked. The ordinance also lets employees accrue at least
72 hours paid sick leave per year (40 hours for small businesses).
The Metropolitan Milwaukee Association of Commerce (MMAC), an
association of 1,800 member businesses throughout Wisconsin, challenged
the validity of the ordinance based largely on the argument that voting
ballots did not contain a “concise statement of its nature,”
as required by Wis. Stat. section 9.20(6).
MMAC asserted the ballot should have contained language to alert voters
that employees would be able to use paid 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,” and other more specific
The Milwaukee Chapter of 9to5 National Association of Working Women, an
intervening defendant in MMAC’s lawsuit against the City of
Milwaukee, had obtained the signatures necessary to place the proposed
ordinance before voters.
The decision in Metropolitan
Milwaukee Association of Commerce, Inc. v. City of Milwaukee,
2009AP1874-AC (March 24, 2011) forces the Milwaukee County Circuit Court
to vacate a permanent injunction it ordered in February 2009 to suspend
the ordinance and directs the circuit court to grant summary judgment in
favor of 9to5.
The Wisconsin Supreme Court split
3-3 after accepting the case on certification last year, sending it
back to the appeals court. The case could be appealed to the supreme
court. However, a bill currently pending in the Wisconsin Assembly would
void certain provisions of the ordinance. Senate Republicans passed SB-23 on
March 3 without Senate democrats.
Concise statement of the nature of the ordinance
In an opinion written by Judge Margaret Vergeront, the three-panel
appeals court addressed several arguments, including whether the paid
sick leave ballot complied with the requirement that it contain a
concise statement of the nature of the ordinance.
MMAC had argued 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. Thomson v. Zimmerman, 264 Wis. 644, 60 N.W.2d 416 (1953).
Thomson, the appeals court noted, concerned a constitutional
amendment, and City of Milwaukee v. Sewerage Commission, 268
Wis. 342, 67 N.W.2d 624 (1954), a municipal referendum case decided the
year after Thomson, “persuades us that the supreme court
has not adopted the ‘every essential’ standard outside the
context of constitutional amendments.”
The appeals court concluded that section 9.20(6) only requires a
“brief statement of the general purpose of the proposed
ordinance,” relying largely on case law and the statutory
The court examined the common meaning of the words
“concise” and “nature” and keyed on the 1913
case of State ex. rel. Elliot v. Kelly, 154 Wis. 482, 143 N.W.
153 (opinion penned by Justice Roujet
D. Marshall) as “the only case brought to our attention that
involves the validity of a ballot statement under a direct legislation
In Elliot, the Wisconsin Supreme Court explained that the
direct legislation 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.
In MMAC v. Milwaukee, the appeals court noted Elliot
and highlighted the statutory scheme that requires a proposed ordinance
to be published in its entirely in a newspaper of wide circulation and
posted at each polling place, which was done.
“Elliot supports 9to5’s position that the notices
required by statute are intended to perform the function of informing
voters of the specifics of the ordinance and, if the required notice has
been given, the adequacy of the ballot question is evaluated in that
The appeals court also noted that MMAC’s proposed ballot
statement at oral argument “was a decidedly non-brief 220-word,
five paragraph question” and requiring “every essential
element” to be stated on the ballot would be particularly
problematic for complex legislation.
A statement in the ballot question describing it as an “ordinance
requiring employers within the city to provide paid sick leave to
employees,” without more, satisfied section 9.20(6)’s
requirement for a “concise statement of [the ordinance’s]
nature,” the court concluded.
Substantive due process
The appeals court rejected MMAC’s and the circuit court’s
suggestion that employee leave for purposes of relocation and legal
action cannot reasonably be considered sick leave, concluding that these
provisions are rationally related to the health of the City of
Substantive due process requires the legislative means chosen have a
rational relationship to the exercise of police power for the general
health, safety and welfare, the court explained.
“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 legitimate municipal objective
The appeals court concluded that MMAC did not meet its burden to prove
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.
Addressing the relocation and legal action provisions specifically, the
court stated that “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,” Judge Vergeront
MMAC also challenged the requirement that employers allow employees to
annually accrue at least 72 hours paid sick leave (40 hours for small
businesses) as opposed to unpaid sick leave.
“With respect to paid versus unpaid sick leave, it is reasonable
to conclude that paid sick leave will induce more employees to take time
off work when necessary for their health and the health of their
families,” Judge Vergeront wrote. “The choice of paid sick
leave is not unreasonable simply because unpaid sick leave might achieve
many of the ordinance’s goals.”
Court rejects MMAC’s other arguments
The appeals court rejected MMAC’s argument that the ordinance is
preempted by the state Minimum Wage Law, the Family/Medical Leave Act
(FMLA), and the Worker’s Compensation Act. The court also rejected
the argument that federal law – the National Labor Relations Act
and the Labor Management Relations Act – preempt the
MMAC argued the ordinance impaired existing collective bargaining
agreements, violating the Contract Clauses of the U.S. and Wisconsin
constitutions. The court disagreed, concluding that the ordinance has a
legitimate public purpose and any contract impairment, substantial or
not, is reasonable and necessary to achieve that purpose.
Finally, MMAC argued the ordinance regulates extra-territorial
activities and a city may not regulate activities outside their
boundaries. Again, the court rejected this argument, concluding the
ordinance clearly regulates only employers within the city.
Two-year repeal safe harbor
Section 9.20(8) provides that a city ordinance adopted under direct
legislation is not subject to the veto power of the mayor and cannot be
repealed or amended within two years of adoption except by a vote of the
MMAC argued the two-year calculation should begin from the time the
ordinance was originally enacted by publication on Nov. 4, 2008,
regardless of the injunction that was in effect. That would currently
allow the ordinance to be repealed locally.
But the court concluded that the two-year time period guaranteed by
section 9.20(8) excludes injunction period, which started Feb. 6, 2009,
and will end on the date the circuit court enters its order vacating the