City Attorney Says Streetcar Petitions Might be Moot

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 “Of course the resolutions could be effectively repealed if the proposed ordinance is held to be a proper subject of direct legislation and is ultimately adopted by the electorate (through the referendum).”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.

Urban Milwaukee Streetcar Coverage

• Millennials And The Streetcar – Bruce Thompson – January 27th, 2015
• Streetcar Responses Show Wide Support – Jeramey Jannene – January 22nd, 2015
• Streetcar Approved, but Held – Jeramey Jannene – January 21st, 2015
• Koch-Funded Group Backs Anti-Streetcar Drive – Bruce Murphy – January 20th, 2015
• Streetcar Backers Say They Have the Votes – Jeramey Jannene – January 20th, 2015
• Who is Funding the Anti-Streetcar Effort? – Bruce Murphy – January 20th, 2015
• Will Anti-Streetcar Referendum Succeed? – Bruce Murphy – January 9th, 2015
• The Story Behind the Streetcar Referendum – Michael Horne and Bruce Murphy – January 8th, 2015
• Council Delays Streetcar Until January – Jeramey Jannene – December 16th, 2014
• Committee Takes No Action on Streetcar – Jeramey Jannene – December 10th, 2014
• Committee Approves Milwaukee Streetcar – Jeramey Jannene – December 9th, 2014
• RACM Approves Tax Funding for Streetcar – Michael Horne – December 8th, 2014
• How to Sell the Streetcar – Michael Horne – November 28th, 2014
• Next Stops for the Streetcar – Michael Horne – November 24th, 2014
• Barrett Moving Forward with Streetcar – Jeramey Jannene – November 18th, 2014
• Who Will Be Streetcar Operator – Michael Horne – May 8th, 2014
• A Streetcar Named Cooperation? – Dave Reid – April 27th, 2014
• How a Streetcar Spurs Development – Angie Schmitt – November 3rd, 2013
• Streetcar Social – Michael Horne – September 12th, 2013
• Mayor Says Streetcar is a “Trojan Horse” – Michael Horne – April 17th, 2013
• Whoops, We Changed Our Mind – Dave Reid – September 27th, 2012
• Battle of the Bobs: Donovan vs Bauman Streetcar Press Conference – Jeramey Jannene – May 18th, 2012
• Important Hoan Bridge and Milwaukee Streetcar Meetings This Week – Dave Reid – November 14th, 2011
• Milwaukee Streetcar Passes Common Council – Jeramey Jannene – July 26th, 2011
• Keep the Milwaukee Streetcar Moving Forward – Jeramey Jannene – July 8th, 2011
• Milwaukee Streetcar at Apex – Jeramey Jannene – June 16th, 2011
• Milwaukee Streetcar Takes Key Step Forward – Jeramey Jannene – May 6th, 2010
• Milwaukee Streetcar Meeting This Thursday – Jeramey Jannene – October 5th, 2009
• Milwaukee Streetcar Routes Unveiled by Mayor Barrett – Jeramey Jannene – September 21st, 2009
• Milwaukee Streetcar Round-Up – Jeramey Jannene – April 19th, 2009
• Vote for your Favorite Milwaukee Streetcar Route – Jeramey Jannene – March 25th, 2009
• Design Your Own Streetcar Route – Jeramey Jannene – March 23rd, 2009
• Streetcars Coming to Milwaukee – Dave Reid – March 14th, 2009

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