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Judge Cooper Invalidates the Paid Sick Leave Ordinance as "Invalidly Enacted and Unconstitutional

June 15, 2009

On June 12, 2009, Judge Thomas R. Cooper of the Milwaukee County Circuit Court released a long-awaited 38-page Decision and Order granting the Plaintiff Metropolitan Milwaukee Association of Commerce's Motion for Summary Judgment invalidating the City of Milwaukee Paid Sick Leave Ordinance ("Ordinance") holding that "section 112 of the Milwaukee Code of Ordinances is invalidly enacted and unconstitutional." Calling it a case "where a proposed ordinance's reach exceeds its grasp," Judge Cooper found that:

  • The term "paid sick leave" used on the November 4, 2008 ballot question did not discuss or provide any information relating to the Ordinance's provision of leave for domestic violence, sexual violence or stalking or leave to seek relocation or pursue legal action as a result of the foregoing ("domestic violence leave"). Because the provision of domestic violence leave was not mentioned in the ballot questions and Judge Cooper determined that the term "sick leave" did not reasonably, intelligently and fairly comprise or reference to domestic violence leave, the ballot question failed to comply with the direct legislations statute, §9.20, Wis. Stat.
  • The objectives of the Ordinance in providing domestic violence leave were not rationally related to the overall objectives of the Ordinance, were without any rational basis in the legislative history and, as a result, render the Ordinance unconstitutional.
  • The Ordinance was not preempted by the Living Wage Act, the Wisconsin Family and Medical Leave Act, the Worker's Compensation Act, the National Labor Relations Act, or the Labor Management Relations Act, as the Ordinance generally complemented the foregoing provisions instead of conflicting with them.
  • The Ordinance did not unconstitutionally impair existing employment contracts in violation of the United States Constitution and the Wisconsin Constitution.
  • The Ordinance is not unconstitutionally void due to vagueness.

In the end, while invalid provisions of an ordinance enacted by a Common Council may be severed in order to save the properly enacted provisions, Judge Cooper found that the Court was restrained from severing the offending provision of the Ordinance in this case by the direct legislations statute, §9.20, Wis. Stat. In doing so, Judge Cooper found that "[t]his interpretation... avoids the threat of judicial activism when the will of the electorate has spoken" through direct legislation.

As a result, Judge Cooper granted MMAC's Motion for Summary Judgment and granted MMAC's Motion for a Permanent Injunction regarding the implementation and enforcement of the Ordinance.

9to5, the Intervenor-Defendant, indicated publicly on June 12, 2009 that the group would appeal Judge Cooper's decision. 9to5 may appeal, as a matter of right, to District I of the Wisconsin Court of Appeals, which sits in Milwaukee.

View a copy of Judge Cooper's June 12, 2009 decision in Metropolitan Milwaukee Association of Commerce v. City of Milwaukee.

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