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Published: August 11, 2011
Author: Robert Procter
The Wisconsin Builders Association Hot Line is a service provided for the Wisconsin Builders Association by the law firm of Axley Brynelson, LLP. Legal Hot Line Answers should be considered a general statement of applicable legal information. Given this format, it is impossible to fully address all potential legal issues which might apply in any particular situation. A determination of any individual's legal rights in a transaction can only be obtained after a complete analysis of the law and its applicability to the particular fact situation. Please contact the author of the article if additional information is needed, or private counsel, if legal advice is needed.
May a village board disregard or otherwise countermand the result of a “binding” referendum?
A: The term “binding referendum” is a generalization that creates confusion when used in a legal sense. There is not a general “binding referendum” statute, common law or principal of law in Wisconsin that prohibits a municipality from amending or repealing an ordinance or resolution adopted by a “binding” referendum.
Instead, there are a number of state statutes that specifically require that a binding referendum be approved to allow governmental entities to take certain actions in specific situations. The most familiar type of "binding" referendum relates to school district finances. For example, Section 67.05(6a) of the Wisconsin Statutes provides that bonding proposals for school districts must be submitted to a referendum if the project costs exceed specified amounts. In such cases, the referendum is binding in that if the referendum fails (the voters do not approve of the bonding), then the school district cannot move forward with the bonding unless a subsequent referendum approves it. The School Board cannot disregard or countermand that referendum. There are also binding referenda under statute for charter ordinances, changing the location of the county seat, abolishing the office of an elected county executive, incorporating a new city or village, etc. All of the referenda set forth under those specific statutes cannot be disregarded or countermanded except by following the procedures of those specific statutes.
There is also a process called “direct legislation” under section 9.20 of the Wisconsin Statutes that allows residents to circulate petitions with a sufficient number of valid signatures requiring a municipality to adopt an ordinance or resolution, or, if the municipality refuses to adopt the ordinance or resolution, to submit the ordinance or resolution to the voters for approval under a binding referendum. In such cases where the ordinance or resolution is adopted by referendum, it may not be repealed or amended within two years of adoption, except by a subsequent referendum.
However, in those cases where a village submits to referendum a resolution or ordinance that is not subject to a specific statutory requirement of referendum and is not the result of direct legislation, a “binding referendum” is not really binding (at least it is not binding forever). There is no statute or other common law precedent that prevents a village from repealing or amending the “binding” referendum originally passed. In fact, most legislative and legal principals prohibit a legislative body from passing a law (or in the case of a village -- passing an ordinance or resolution by binding referendum) that cannot be subsequently amended or repealed by the legislative body. For example, a village cannot adopt by “binding” referendum a resolution to require that all public spending be offset by cuts to other programs, which then prohibits the next elected village board from amending or repealing the resolution in the future.
In other words, a village board can submit an ordinance or resolution to binding referendum; however, the village board does not waive its or any future elected board's ability to amend or repeal the ordinance or resolution adopted by referendum.
For more information about the Wisconsin Builders Association Hot Line, contact Robert Procter at 608.283.6762 or rprocter@axley.com.
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