Municipal Home Rule in Wisconsin. From Wisconsin's Constitution to General Municipality Law Ch. 66

Doug Huffman · Aug 2, 2009

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I am not a lawyer. I do not believe that any law can be read without context and still have effect. The often cited and abused ss 66.0409 does not exist merely hanging in legal space but in a logical context that starts with the Wisconsin Constitution and includes Chapter 66 and 941.

WISCONSIN CONSTITUTION
ARTICLE XI.
CORPORATIONS
[ ...]
Municipal home rule; debt limit; tax to pay debt. SECTION 3. [As amended Nov. 1874, Nov. 1912, Nov. 1924, Nov. 1932, April 1951, April 1955, Nov. 1960, April 1961, April 1963, April 1966 and April 1981] (1) Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village. The method of such determination shall be prescribed by the legislature.

Home rule is subject only to legislative enactments of statewide concern uniformly affecting every municipality and the legislature determines such prescription.

CHAPTER 66 GENERAL MUNICIPALITY LAW
SUBCHAPTER I GENERAL POWERS; ADMINISTRATION

66.0101 Home rule; manner of exercise. (1) Under article XI, section 3, of the constitution, the method of determination of the local affairs and government of cities and villages shall be as prescribed in this section. [ ...]
66.0107 Power of municipalities to prohibit criminal conduct. (1) The board or council of any town, village or city may: [ ...]
(2) Except as provided in sub. (3), nothing in this section may be construed to preclude cities, villages and towns from prohibiting conduct which is the same as or similar to that prohibited by chs. 941 to 948.

SUBCHAPTER IV REGULATION

66.0409 Local regulation of firearms.[ ...]
(2) Except as provided in subs. (3) and (4), no political subdivision may enact an ordinance or adopt a resolution that regulates the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.

I have diligently read much of the intervening material and of the statutes preceding Chapter 941. I have found no force or enforcement in this reading of law that gives a citizen or subdivision of the state privilege to enforce 66.0409.

Let the quibbling begin.

Either we are equal or we are not. Good people ought to be armed where they will, with wits and guns and the truth.

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Mike · Aug 2, 2009

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Doug Huffman wrote:

I have diligently read much of the intervening material and of the statutes preceding Chapter 941. I have found no force or enforcement in this reading of law that gives a citizen or subdivision of the state privilege to enforce 66.0409.

Can you explain in plain English what you mean above?

Doug Huffman · Aug 2, 2009

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Ain't no enforcement o' dis statute against da' state o' its subdibisioins.

J.Gleason · Aug 2, 2009

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Doug Huffman wrote:

Ain't no enforcement o' dis statute against da' state o' its subdibisioins.

Ahhhh, so you are in fact No1. Thought so!

So tell me then No1 why was the statute written if not to be enforced?

GlocksRfun · Aug 2, 2009

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So, what you're saying is that there is no one to regulate good ol' 66.04.09. The only way is to test it in court??

Doug Huffman · Aug 2, 2009

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I think that you, No One, are the one claiming to be pursuing a Juris Doctor. I'm jus' a dumb ol' retired engineer only smart enough to start a couple of dozen reactor for the first time and safely.

J.Gleason · Aug 2, 2009

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But you still have not answered the question No1. Why was the statute written if not to be enforced?

bnhcomputing · Aug 2, 2009

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This was kind of addressed in the thread below, wasn't it?

http://opencarry.mywowbb.com/view_topic.php?id=23392&forum_id=57

J.Gleason · Aug 2, 2009

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indeed it was

Doug Huffman · Aug 2, 2009

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I suggest, rather, that referenced thread addresses municipal challenges to 66.0409.

Y'all are the ones discussing challenging the prohibition to municipalities violating 66.0409.

There is no force or enforcement to 66.0409 and there is a presumption in favor of home rule.

When I wrote the ordinance, requested and passed by my Board, I cited village powers and have not been challenged on source or substance.

Mike · Aug 2, 2009

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Doug Huffman wrote:

There is no force or enforcement to 66.0409 and there is a presumption in favor of home rule.

Doug - statutes such as 66.0409 act as an explicit limitation on the validity of locality ordinances defeating any presumption of home rule.

An ordinance or other policy by a locality which is invalid cannot be enforced. A criminal Defendant would assert the ordinance is invalid and if it is invalid, game over; alternatively, a civil Plaintiff victimized by attempted illegal enforcement of a preempted ordinance can bring an action in state or federal court for violations of their rights for damages and injunctive/declaratory relief.

Finally, I presume Wisconsin has a mechanism like most or all states for civil Plaintiffs to bring decalratory judgement actions against localities to have preempted ordinances or policies declared invalid on a pre-enforcement basis - I do not believe there is currently a statutory attonrey fee shifting provision for such actions in Wisconsin, but there is now in both Ohio and Virginia so Wisconsin folks - draft up some fee shifting buills for your legislators to introduce!

Doug Huffman · Aug 2, 2009

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Mike wrote:

Wisconsin folks - draft up some fee shifting buills for your legislators to introduce!

In Wisconsin legislation is drafted by the Legislative Reference Bureau

http://www.legis.state.wi.us/lrb/Legal/index.htm

LRB Legal

The Legal Services section of the LRB includes approximately 20 attorneys, each with specific subject matter expertise, who draft all proposed legislation; prepare analyses of all bills, joint resolutions, and resolutions; provide legal advice to legislators and state agencies; assist the legislature in making procedural rule determinations; and staff conference committees.

If you have questions about a specific bill, you may identify and contact the drafting attorney by matching the attorney's initials, which appear below the LRB number in the bill's upper right-hand corner, with the attorney's name in the attorney directory. If you have a drafting request or legal question, you may use the subject areas directory to identify and contact the appropriate attorney.

If you would like to use our optional bill request form when making a drafting request, you may download the form.

To inquire about the status of a draft, request that a bill draft be jacketed, have a copy of a draft or introduced bill emailed or sent to you, or ask directions to the LRB, please call 266-3561 or email your inquiry or request to LRB.Legal@legis.wisconsin.gov.

Doug Huffman · Aug 2, 2009

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Mike wrote:

An ordinance or other policy by a locality which is invalid cannot be enforced. A criminal Defendant would assert the ordinance is invalid and if it is invalid, game over; alternatively, a civil Plaintiff victimized by attempted illegal enforcement of a preempted ordinance can bring an action in state or federal court for violations of their rights for damages and injunctive/declaratory relief.

I agree. I am not a lawyer but I believe that standing must be acquired first to bring a civil action or a criminal defense.

My attempted point is that there is no statute enforcing the law on the state or its subdivisions. The law can be enforced only in an adversarial action.

Mike · Aug 2, 2009

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Doug Huffman wrote:

Mike wrote:

An ordinance or other policy by a locality which is invalid cannot be enforced. A criminal Defendant would assert the ordinance is invalid and if it is invalid, game over; alternatively, a civil Plaintiff victimized by attempted illegal enforcement of a preempted ordinance can bring an action in state or federal court for violations of their rights for damages and injunctive/declaratory relief.

Click to expand...

I agree. I am not a lawyer but I believe that standing must be acquired first to bring a civil action or a criminal defense.

My attempted point is that there is no statute enforcing the law on the state or its subdivisions. The law can be enforced only in an adversarial action.

A criminal Defendant always has standing to challenge the validity of the law by which he is charged.

A civil Plaintiff in an action for damages for unlawful enforcement of the preempted ordinance has standing by way of the cause of action asserted against the locality, e.g., battery, assault, false imprisonment, etc.

A civil Plaintiff in a declaratory judgement action has standing to challenge the validity of a statute if the Plaintiff can show "a credible threat of prosecution." Babbit v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979).

Interceptor_Knight · Aug 2, 2009

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Doug Huffman wrote:

When I wrote the ordinance, requested and passed by my Board, I cited village powers and have not been challenged on source or substance.

So... Are you suggesting that someone open carry on Washington Island in order to challenge the current statute??

Municipal Home Rule in Wisconsin. From Wisconsin's Constitution to General Municipality Law Ch. 66

Doug Huffman

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Mike

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Doug Huffman

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J.Gleason

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GlocksRfun

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Doug Huffman

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J.Gleason

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bnhcomputing

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J.Gleason

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Doug Huffman

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Mike

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Doug Huffman

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Doug Huffman

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Mike

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Interceptor_Knight

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