Bruce Murphy
Back in the News

City Attorney Says Streetcar Petitions Might be Moot

Legal opinion says Common Council approval of streetcar in July 2011 might make petition drive demanding a referendum irrelevant.

By - Jan 30th, 2015 10:54 am
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Milwaukee Streetcar.

Milwaukee Streetcar.

A legal opinion by the Milwaukee City Attorney’s office suggests the ongoing petition drive — to stop the streetcar by requiring a referendum on it — may be moot because it has come years after the fact.

“We note that there is a valid legal argument that the proposed ordinance constitutes a substantial amendment of Common Council Resolutions… previously adopted… in 2011, and therefore may not be a proper subject of direct legislation.”

The opinion also stated the the council is free to vote on the streetcar at its February 10th meeting. “Nothing in the direct legislation statute (which allows referendums)… withdraws from the Council the power to legislate…and adopt” the streetcar proposal. “Of course the resolutions could be effectively repealed if the proposed ordinance is held to be a proper subject of direct legislation and is ultimately adopted by the electorate (through the referendum).”

The opinion was signed by City Attorney Grant Langley and Assistant City Attorney Thomas D. Miller.

Where does this leave things? It means the council can approve the streetcar at its next meeting but if the proper number of signatures is submitted by the anti-streetcar forces, a referendum on whether referendums are needed on any rail transit costing at least $20 million must be held.

But it also opens the door to legal action by the city to argue that the 2011 vote in favor of the streetcar makes the petition drive too late to stop the project. The general principle in case law is that a referendum can’t undo a past action of a government, and this referendum proposal comes almost four years later.

Chris Kliesmet of the Citizens for Responsible Government, has already indicated that his group’s attitude is that the 2011 legislation doesn’t count, because it was a smaller and different proposal. But it was a rail proposal costing more than $20 million, which is what his group wants to require must have approval through a referendum.

Rick Esenberg, an attorney with the Wisconsin Institute of Law and Liberty, provided pro-bono legal help to Kliesmet’s group and helped draft the legal language and its $20 million cut-off. He has argued the petition drive is allowed by state law and any effort to start building the streetcar before the referendum was voted on would be struck down by the courts.

“It would seem amazing if you can render it meaningless before the referendum or before petitions are presented or even before the referendum is announced.” The petition drive was announced in early January.

As to whether the 2011 approval of the streetcar makes the issue moot, he cautioned that he hadn’t had time to look at the city attorney opinion, but noted: “the law in this area is this area is not well developed. There’s not a lot of judicial guidance on it.”

But if the goal is to stop any rail transit of more than $20 million, shouldn’t the petition drive have been launched in 2011? “It could have and I think a lot of people opposed to the streetcar have thought that it ought to have been,” he conceded.

Esenberg’s group is funded by the conservative Bradley Foundation, and will likely contest any city action to argue the referendum is moot.

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For more information on project details, how the operator will be selected, what the vehicles will be like, and possible extensions, see our extensive past coverage.

6 thoughts on “Back in the News: City Attorney Says Streetcar Petitions Might be Moot”

  1. TamiW says:

    i, for one, am sick of the full frontal assault on any form of rational public transportation. It’s been going on since the 90s, and the renewed vigor against the street car is beyond the pale. It’s people outside the community trying to negatively influence the city of Mikwaukee to keep the city from thriving. We don’t need more freeways to take people past the city.

    Let’s break ground already!

  2. Maggie Kuhn Jacobus says:

    I’ve been following the street car debate closely and getting excellent insight through the outstanding reporting of Urban Milwaukee. But I’m honestly lost at this point: remind me why people are against a mode of transportation to the point of threats of violence and governmental gridlock? What would happen if these Aldermen and pro bono attorneys and concerned citizens put their minds to SOLVING something rather than simply be obstructionist for reasons no one can even remember?

    Keep shining the light of truth, Bruce Murphy. You are a rare journalistic gem these days.

  3. Observer says:

    Yesterday at my senior swim class a gushing lady smiling ear to ear said she brought a petition so we all can sign it. “But you have to be a Milwaukee County resident she said. After telling her I was in favor of the streetcar she didn’t pursue it. I started smiling to myself thinking the petition will get tossed for not restricting it to Milwaukee city residents. I didn’t want any confrontation but I wondered how she would feel if Milwaukee city residents presented petitions demanding low income housing in Hales Corners where she lived.

  4. David says:

    Divide and conquer is working. Has there ever been a time in history when the “have nots” fought each other over scraps? There was a time when the people rose up against “the man”. Now firefighters are fighting against teachers and other working people over pensions. This streetcar is real infrastructure for the people that benefits us all.

  5. Tom Barretts Pharmacist says:

    The Streetcar is the one and only thing Milwaukee needs. This is a solution to all of the public policy issues that we face in Milwaukee. There is no other issue worth talking about except a Streetcar. It will pay for itself in no time and the projections for ridership is so understated that we should be expecting dividends.

    Tom Barrett does not like to bicker or fight over anything. He’s a bystander held hostage by a brutal dictator in Madison. There will be no payoffs or favors made to any Streetcar lobbyists at all. This Streetcar is altruism defined.

  6. David says:

    What’s your point?

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