West Milwaukee Update

The Village of West Milwaukee is trying to pull some shenanigans on us.

At the village board meeting, the board unanimously voted to reject the petition, on the advice of the village attorney, who told them that the ordinance we are attempting to pass is in conflict with state law. This action of the village board is illegal, in violation of Wisconsin Statute 9.20(4) which gives the village board only two options at this point: either pass the ordinance as-is, or put it on the ballot.

We have attempted to contact the village attorney to resolve the issue, but they have not responded to us. After some research, it appears that we can file a civil lawsuit against the village, seeking what is called "mandamus". Mandamus is when the courts compel the village to perform its mandatory duty.

Such a lawsuit will likely incur a cost, so we are still hoping to resolve the issue with the Village of West Milwaukee outside of the court system.

The following is the email I just sent to the village board, the village clerk, and the village attorney. It goes into detail about why the village board does not have the authority to make the decision it did, and what we plan to do to remedy the situation.


Hello, I am Eric Marsch, the Executive Director of Southeastern Wisconsin NORML, the group that submitted the 9.20 marijuana decriminalization petition at the end of May.

I am writing to inform you that on July 17th, the village board made an illegal and unconstitutional decision to reject our petition, in violation of the separation of powers as well as its "mandatory, ministerial, nondiscretionary" duty laid out in Wisconsin Statute 9.20.

A call to the village attorney to resolve this situation was not returned. I am hoping that the village board will put our decriminalization ordinance back on the agenda, where they will either pass the ordinance as-is or put it on the ballot for the people to vote on, as Wisconsin Statute 9.20 mandates.

There are a couple pieces of information that I want to bring to your attention:

1) The ordinance we submitted is in full compliance with state law. The Village Attorney's claim that our ordinance is in conflict with state law is entirely without merit. Wis. Stat. 66.0107(1)(bm) clearly states:

[The board or council of any town, village or city may:] Enact and enforce an ordinance to prohibit the possession of marijuana, as defined in s. 961.01 (14), subject to the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation of the ordinance; except that if a complaint is issued regarding an allegation of possession of more than 25 grams of marijuana, or possession of any amount of marijuana following a conviction in this state for possession of marijuana, the subject of the complaint may not be prosecuted under this paragraph for the same action that is the subject of the complaint unless the charges are dismissed or the district attorney declines to prosecute the case.

In addition, the exact ordinance language we are using is already in effect in Shorewood, and similar language is in effect in dozens of municipalities across Wisconsin.

2) A legislative body (the village board) is not authorized to make judgement regarding the validity or constitutionality of an ordinance proposed under Wis. Stat. 9.20; that is the prerogative of the courts. The Wisconsin Supreme Court made this explicitly clear in the 1977 case of Althouse vs. Madison - which is cited in the footnotes of the docs.legis.wisconsin.gov distribution of the 9.20 statute - stating:

"We conclude... it is not the prerogative of the common council to reach a conclusion with respect to the unconstitutionality or invalidity of the proposed ordinance."

and

"We conclude the only inquiries permissible by either the council or the trial judge at the mandamus hearing were in respect to whether the ordinance was legislative in nature, whether it proposed new legislation and not the repeal of existing legislation, and whether it was proper in form."

and

"We conclude that, where there has been no specific prior adjudication of unconstitutionality, the electorate under the direct legislation statutes, may compel placement on the ballot regardless of grave doubts in respect to constitutionality and statutory validity. Only after the measure has passed and a controversy arises may a court of this state pass upon the question of constitutionality. While it is asserted that Wisconsin is a jurisdiction which limits the scope of direct legislation, our examination of the Wisconsin cases convinces us that Wisconsin law permits the electors under the direct legislation statute to compel a common council to enact or to place on the ballot any proposed ordinance which the common council in its legislative capacity could enact."

and

"We should also emphasize that the intervention of the common council at this juncture of the direct legislation process not only flies in the face of the mandatory provisions of sec. 9.20, Stats., but also would almost totally vitiate the policy behind the direct legislation statutes."

and

"it seems clear that a city council is in no position, either by virtue of its function or by virtue of its constitutional powers, to forestall proposed legislation on the basis of its unauthoritative conclusion in respect to constitutionality."

As a courtesy to the taxpayers of the Village of West Milwaukee, we simply request that the village board put our ordinance back on the agenda for either the August 21st or September 4th village board meetings, with the assurance that the matter will be dealt with in accordance to the mandatory duties set out in Wis. Stat. 9.20(4).

If we do not hear back with such assurance by end of day next Friday August 11th, we will file a Complaint for Mandamus with the Milwaukee County Circuit Courts to compel the village board to act in accordance with the law. In such a case, we will pursue restitution from the village to cover any legal costs we may incur.

I hope this situation can be resolved quickly and without cost to either party.

Sincerely,

Eric Marsch
Executive Director
Southeastern Wisconsin NORML


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  • commented 2017-08-03 11:19:01 -0500
    I know that we would only be reimbursed if we come out on top, but I have no doubt that the law is on our side in this. Althouse v Madison couldn’t be any more clear.
  • commented 2017-08-03 08:11:37 -0500
    Without knowing the particulars of their response, it is hard to comment, but you have to prevail to collect those expenses or you could be holding the bag yourself. This is why we hired an attorney the second time around and why we asked to see your language before you started.