Judge orders village to accept petition
A civil suit filed last year by Bay City residents against the village, Village Board and village clerk saw a ruling filed by the judge July 12.
Pierce County Circuit Judge Joseph D. Boles ordered the plaintiffs' attorney to prepare a writ, directing Bay City Village Clerk Shawnie King to prepare a certificate finding a petition circulated by the plaintiffs last year to be sufficient, in proper form and submitted immediately to the Village Board in compliance with state law.
"It is clear the petitioners fully complied with the requirements of Section 9.20, Wis. Stats. Therefore, the plaintiffs are entitled to a writ of mandamus," Boles wrote in his decision.
Pierce County Civil Court records show a petition for "a writ of mandamus" was filed by attorney William J. Mavity on behalf of plaintiffs Kent Carlson, David Meixner and Steven Meixner against defendants Bay City clerk Shawnie King, the village of Bay City and board Aug. 16, 2016.
A writ of mandamus is an order to compel a judicial or government officer to perform a duty owed to the petitioner.
In this case, the three men asked a judge to order the board to put a proposed nature trail project (which would cut through portions of David Meixner's land) to a public vote.
State law provides a procedure by which voters may compel a village board to pass a proposed ordinance or resolution or put the proposed ordinance or resolution before the public for a popular vote. This is called direct legislation.
The ordinance states "Prior to the start of any construction of any village financed recreation project, including but not limited to a trail, or trail system for a park, requiring the acquisition of property not owned by the village and an expenditure of $50,000 or more in village funds...the village board shall submit to the electorate a binding referendum for approval of the project.
"Failure of the referendum shall preclude the village from proceeding with or permitting the construction of such a project, or any part thereof using village funds or revenues."
The road to court
There were many hiccups in filing the petition last year, the rejection of which three times led the plaintiffs to sue the village.
The direct legislation petition Carlson submitted on behalf of a contingent of Bay City voters filed May 27, 2016, didn't meet the requirements of state statute and was returned.
Mavity, who represents the Meixners and Kent Carlson in this matter, said the petition collected 36 signatures, more than enough for the number of signatures required (which is 15 percent of the votes cast for governor at the last general election in a city or village).
However, Mavity admitted he failed to type the word "Petition" at the top of the documents, which made them ineligible for filing.
"It was an unfortunate oversight on my part and neither Steve (Meixner, David's brother), nor Kent Carlson has any responsibility for the error in the petition," Mavity said in a letter to petitioners last year.
Because the petitioners may not have known they were signing a petition, new ones were circulated and certified. They were hand-delivered and re-filed June 24, 2016, Mavity said. He was designated as the person to inform if the petitions were determined to be "insufficient or not in proper form."
In a letter dated July 9,2016, King rejected the petition again, based on language in the proposed ordinance not being the same in all pages of the petition.
She cited "One form proposes an ordinance with language 'including but not limited to a trail or park,' while the other contains language stating 'including but not limited to a trail.' In addition, one form of (the petition) refers to 'the total estimated cost of the project' and the other refers to 'the total estimated costs (including attorneys' fees), of the project.'"
The rejected petition stemmed from the ordinance proposed being "not clear."
Mavity re-submitted the petition July 12, 2016, with "consistent language for the proposed ordinance."
On July 27, 2016, the petition was again rejected by King, who said the filing was defective because Mavity "did not designate an individual to be notified if the Petitions are insufficient or not in proper form." She said it's required by state law.
Mavity had declared himself the one to notify in the filings May 27 and June 24, but had apparently not re-stated that in the new filing July 12. He said his July 12 letter re-filing the four pages of the plaintiffs' petition asked King to notify him of any village board action in response to the filing. She the sent her findings to Mavity by mail July 27, 2016.
When the village board did not take action on the petition request at its Aug. 10, 2016, meeting, the civil case was filed in court Aug. 16, stating the defendants had failed to comply with the state law requirements regarding the plaintiffs' petition for direct legislation.
In the judge's ruling, he wrote: "Section 9.20, Wis. Stats., does not require that the petition contain the designation of an individual to be notified of an insufficiency or improper form. It is sufficient that this information is provided in writing by the individual filing the petition. That was done three times in this process."
So what's next? Unless the village decides to appeal the decision, it will have to adopt the direct legislation request.
In a letter to Boles from village attorney Robert Loberg, dated July 12, Loberg writes: "It is undisputable that the first two filings were erroneous and for different reasons and the Clark wasn't 'saving up' objections when she made either the first or second rejection to make for later filings. She couldn't object or reject for deficiencies not yet appearing."
The plaintiffs declined to speak due to involvement in an eminent domain/adverse possession case between David Meixner and the village over land both claim to own, and which the village plans to use to build a nature trail.