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Direct legislation petition invalid: City attorney

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Marcia Nelesen
June 2, 2014

JANESVILLE-- Despite a preliminary legal opinion from City Attorney Wald Klimczyk that it would not be valid, Billy McCoy says he will continue a petition drive to force the Janesville City Council to rescind its vote to build a $9-million fire station.

McCoy said Klimczyk's opinion is just a City Hall ploy to discourage McCoy's efforts.

A lawyer at the state Government Accountability Board said it was not appropriate for him to comment on the petition's legality, considering he did not know its background and because the matter could end up being appealed to his department.

Shane Falk, staff counsel for the GAB, said it is up to Janesville's city clerk to decide whether to accept the petition.

Klimczyk said city Manager Mark Freitag asked him to research the issue, and a news release was issued Monday.

The construction of the new central fire station has and continues to be controversial because of its cost and because the city plans to demolish 12 homes at the corners of Centerway, Prospect and Milton avenues to build it.

McCoy said residents also are upset that the initial vote on the fire station's location took place in closed session.

Klimczyk said the petition fails to satisfy the requirements for a valid direct legislation ballot question for two reasons:

--The petition is administrative in nature rather than legislation in nature.

Klimczyk described legislation as being something that “governs behavior for long periods of time.” One example would be an ordinance that forbids excessive noise with a motor vehicle.

The council's vote to build a fire station was “definitely administrative” because it relates “to the business of the organization,” Klimczyk said.

--The proposed petition would repeal a council decision. State statutes say direct legislation may not undo or conflict with prior lawful actions of the city council, Klimczyk said. The council has also already authorized relocating the homeowners.

“There is no direct legislation that can undo that,” he said.

Residents could gather signatures to urge the council to reconsider its actions, but the petition cannot require binding action, he said.

“If it (the petition) continues forward in its current form, I would advise the clerk not to accept it,” Klimczyk said.

Klimczyk also said he couldn't think of any wording that would make the petition work for direct legislation.

Residents could file a “mandamus” action to the Wisconsin Court of Appeals if they think the city acted inappropriately in refusing its petitions.

One section of the statutes includes a case in Mount Horeb, where a court ruled residents could use a petition for direct legislation requiring the village to hold a binding referendum before construction of any new building project costing $1 million or more.

Klimczyk said that ruling does not apply to this case because this decision has already been made.

Nobody was available to comment at the Wisconsin League of Municipalities.

McCoy said he knows there are some minor problems with the wording of the petition, but he is working to correct them.

“Regardless of what the city attorney says, we are going to go ahead and do it,” McCoy said of the petition drive. McCoy needs 3,165 signatures to file the petition.

“We just feel that between him (Klimczyk) and the (city) administration, they are just trying to go make sure the fire station is going to be rebuilt,” McCoy said.

McCoy said he had similar problems when he started a 2004 petition drive to change the city's form of government. That initiative eventually went to referendum but failed.



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