Jeffrey Meessmann v. Town of Presque Isle

2023 WI APP 36
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2022AP720

†Petition for Review Filed

Complete Title of Case:

STATE OF WISCONSIN EX REL. JEFFREY MEESSMANN, ROBERT
BAROFSKY, EDWARD BRODSKY, JEFFREY BURKE, SUE DRUM, ANN
MAWICKE, GARY PLOUFF AND DAVID VOGT,

PETITIONERS-APPELLANTS,†

RONIE JACOBSEN,

PETITIONER,

V.

TOWN OF PRESQUE ISLE,

RESPONDENT-RESPONDENT.

Opinion Filed: June 20, 2023
Submitted on Briefs: February 2, 2023
Oral Argument:

JUDGES: Stark, P.J., Hruz and Gill, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the petitioners-appellants, the cause was submitted on the
briefs of James A. Olson of Lawton & Cates, S.C., Madison,
Christopher J. Blythe, Madison, and Daniel P. Bach of Lawton &
Cates, S.C., Jefferson.
Respondent
ATTORNEYS: On behalf of the respondent-respondent, the cause was submitted on
the brief of Steven C. Garbowicz of O’Brien, Anderson, Burgy &
Garbowicz, L.L.P., Eagle River.

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2023 WI App 36

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 20, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2022AP720 Cir. Ct. No. 2021CV100

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN EX REL. JEFFREY MEESSMANN, ROBERT
BAROFSKY, EDWARD BRODSKY, JEFFREY BURKE, SUE DRUM,
ANN MAWICKE, GARY PLOUFF AND DAVID VOGT,

PETITIONERS-APPELLANTS,

RONIE JACOBSEN,

PETITIONER,

V.

TOWN OF PRESQUE ISLE,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Vilas County:
MARTHA MILANOWSKI, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.
No. 2022AP720

¶1 STARK, P.J. This is a mandamus action to compel the Town of
Presque Isle, Wisconsin (the Town), to act on a petition filed under WIS. STAT.
§ 9.20 (2021-22),1 the direct legislation statute. The petitioners-appellants in this
case are adult residents and electors of the Town.2

¶2 In 2021, the Residents brought to the Town Board (the Board) their
concerns that hazardous boat wakes3 created on the Town’s waterways were
interfering with their rights under the Public Trust Doctrine.4 However, after
investigation and consideration of a proposed boating ordinance, the Board took no
action.5

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
Multiple residents filed the action in this case. For ease of reading, when referencing the
petitioners-appellants’ arguments, we will refer to them as “the Residents.”
3
The record defines a hazardous wake as “a boat wake that is intentionally magnified
through the use of ballast, design features or operational procedures to amplify the wake’s height
and consequently generate rogue waves.”
4
For a discussion of the scope of the Public Trust Doctrine, see our supreme court’s
decision in Clean Wisconsin, Inc. v. DNR, 2021 WI 72, 398 Wis. 2d 433, 961 N.W.2d 611.
5
In their petition for a writ of mandamus, the Residents alleged that they first brought their
concerns to the Board. On June 6, 2020, the Board requested that the Town Ordinance Committee
“do research and make recommendations concerning hazardous wakes.” The Town Ordinance
Committee held several meetings and produced and adopted a condition report. The report outlines
numerous impacts on the public health, safety, and welfare as a result of hazardous wakes.

The report and a proposed ordinance were then submitted to the Board. According to the
Residents’ petition for a writ of mandamus, the proposed ordinance targeted the “operation of a
boat in a manner that intentionally magnifies its wake for recreational purposes such as wake
boarding, wake surfing, or wake jumping,” but it did not “prohibit the use of watercrafts that are
not intentionally magnifying the wake, such as water ski boats, personal watercraft, or boats
designed for wake sports.” On February 3, 2021, the Board was threatened with litigation by wake
boaters if the ordinance was adopted. Thereafter, the Board took no action on the proposed
ordinance.

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No. 2022AP720

¶3 The Residents then sought to employ the provisions of the direct
legislation statute—WIS. STAT. § 9.20—to force the Board to take action. The
Residents submitted a petition and the proposed ordinance to the Town, requesting
that the Town either adopt the proposed ordinance or submit it to a vote by the
electors. The Town did not act upon the petition, and it argues that it was not
required to do so because § 9.20 is not applicable to towns. In contrast, the
Residents argue that § 9.20 is applicable to the Town based on its adoption of village
powers under WIS. STAT. §§ 60.10(2)(c) and 60.22(3) and pursuant to WIS. STAT.
§ 61.342. After the Town refused to act on the Residents’ petition, the Residents
sought a writ of mandamus in the circuit court. The court agreed with the Town and
denied the Residents’ petition for a writ of mandamus.

¶4 We conclude that the circuit court properly denied the Residents’
petition for a writ of mandamus. This case does not concern the validity of the
proposed ordinance; instead, the question is whether WIS. STAT. § 9.20 places a
positive and plain duty on the Town to take action on the Residents’ petition. Given
the plain language of the relevant statutes, we conclude that § 9.20 does not assign
such a duty, as that statute is not applicable to towns. None of the statutes upon
which the Residents rely give them the authority to petition the Town for direct
legislation, and the Town had no duty to act upon the Residents’ petition, even
though the Town has adopted village powers under WIS. STAT. §§ 60.10(2)(c) and
60.22(3). Thus, under the circumstances, the Residents have no clear right under
the direct legislation statute to compel the Board to take action on their petition, and
the Town did not have a plain and clear duty to approve the proposed ordinance or

As this appeal does not involve the propriety or the merits of the proposed ordinance itself,
we will not further discuss the details of the ordinance’s proposed language. See State ex rel.
Althouse v. Madison, 79 Wis. 2d 97, 108, 255 N.W.2d 449 (1977).

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No. 2022AP720

place it on the ballot. We therefore affirm the court’s denial of the Residents’
petition for a writ of mandamus.

BACKGROUND

¶5 The facts in this case are not in dispute. In 2021, the Residents sought
to employ the provisions of the direct legislation statute to force the Town to take
action on their petition for a boating ordinance. The direct legislation statute permits
local electors to submit “a petition with the [municipality’s] clerk requesting that an
attached proposed ordinance or resolution, without alteration, either be adopted by
the common council or village board or be referred to a vote of the electors.” WIS.
STAT. § 9.20(1), (4). The statute requires that the petition be signed and filed by
“[a] number of electors equal to at least 15 percent of the votes cast for governor at
the last general election in their” municipality, see § 9.20(1), which was calculated
for the Town to be seventy-eight signatures.

¶6 On August 28, 2021, the Residents filed fifteen petitions containing a
total of 150 signatures.6 On September 2, 2021, the town clerk certified that the 150
signers were electors of the Town. See WIS. STAT. § 9.20(3). Thus, the Residents
argue that, pursuant to § 9.20(4), the Board was required to act on the petition within
thirty days or place the proposed ordinance on the ballot for the Spring 2022
election. The Board neither adopted the proposed ordinance nor took action to place
it on the ballot.

¶7 On October 8, 2021, the Residents filed a petition for a writ of
mandamus, requesting that the circuit court order the Town to comply with WIS.
STAT. § 9.20 by either adopting the proposed ordinance or by placing the issue on

6
For ease of reading, we refer to these fifteen petitions, collectively, as a single petition.

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No. 2022AP720

the ballot. The parties filed cross-motions for summary judgment, each alleging
that there was no issue of material fact and that they were entitled to judgment as a
matter of law. The Town’s position was that the direct legislation statute can only
be used by citizens of cities and villages and that the statute does not apply to towns
that have adopted village powers. See WIS. STAT. § 60.22(3).

¶8 In an oral ruling, the circuit court denied the Residents’ motion for
summary judgment, granted the Town’s cross-motion, and dismissed the Residents’
petition for a writ of mandamus. After considering the standards by which a court
is to review a petition for a writ of mandamus and reviewing the relevant statutes,
the court determined that WIS. STAT. § 9.20 “provides a power to electors of a
village or city” but provides “a duty to the village or city itself.” Because the plain
language of WIS. STAT. § 60.22(3) references “powers,” but not “duties,” the court
concluded that § 9.20’s “provisions are not taken on when a town adopts village
powers pursuant to [§] 60.22(3).” The Residents appeal.

DISCUSSION

¶9 The question before us on appeal is whether the Residents may utilize
the provisions of WIS. STAT. § 9.20 where the Town has adopted village powers
under WIS. STAT. § 60.22(3), such that the Town can be ordered to carry out the
requirements of the direct legislation statute. Section 60.22(3) provides that, in
certain circumstances, town boards “may exercise powers relating to villages and
conferred on village boards under [WIS. STAT.] ch. 61, except those powers which
conflict with statutes relating to towns and town boards.” The Residents argue that
because “one of the village powers” listed in ch. 61 is use of the direct legislation
statute, see WIS. STAT. § 61.342, the direct legislation statute can be used by the
citizens of the Town under Wisconsin law. For the reasons that follow, we disagree.

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No. 2022AP720

¶10 Our review of a circuit court’s summary judgment decision is
de novo, and we apply the same methodology as the circuit court. Springer v. Nohl
Elec. Prods. Corp., 2018 WI 48, ¶9, 381 Wis. 2d 438, 912 N.W.2d 1. “The
methodology governing summary judgment is well-established and we need not
repeat it in its entirety,” Progressive N. Ins. Co. v. Jacobson, 2011 WI App 140,
¶7, 337 Wis. 2d 533, 804 N.W.2d 838, except to note that summary judgment is
appropriate when the record demonstrates that “there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law,”
WIS. STAT. § 802.08(2).

¶11 This case also involves the interpretation of a statute, which presents
a question of law that we review independently. See State v. Grandberry, 2018 WI
29, ¶11, 380 Wis. 2d 541, 910 N.W.2d 214. “[S]tatutory interpretation ‘begins with
the language of the statute. If the meaning of the statute is plain, we ordinarily stop
the inquiry.’” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45,
271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). “Statutory language is given
its common, ordinary, and accepted meaning, except that technical or specially-
defined words or phrases are given their technical or special definitional meaning.”
Id. “[S]tatutory language is interpreted in the context in which it is used; not in
isolation but as part of a whole; in relation to the language of surrounding or closely-
related statutes; and reasonably, to avoid absurd or unreasonable results.” Id., ¶46.

¶12 Finally, the Residents brought this case pursuant to a petition for a
writ of mandamus. “Mandamus is an extraordinary writ issued in the discretion of
the circuit court to compel compliance with a plain legal duty.” Mount Horeb Cmty.
Alert v. Village Bd. of Mount Horeb, 2003 WI 100, ¶9, 263 Wis. 2d 544, 665
N.W.2d 229.

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No. 2022AP720

¶13 There is no dispute that “[m]andamus is the proper means to challenge
a municipality’s failure to comply with the requirements of the direct legislation
statute, WIS. STAT. § 9.20.” Mount Horeb, 263 Wis. 2d 544, ¶9. To obtain a writ
of mandamus, a petitioner must show: “(1) a clear legal right to relief; (2) a positive
and plain legal duty on the part of the official or body to whom the writ is directed;
(3) substantial damage due to the nonperformance of the duty; and (4) no adequate
remedy at law.” Id. (formatting altered). We will uphold a circuit court’s decision
to grant or deny a writ of mandamus unless the court erroneously exercised its
discretion. Lake Bluff Hous. Partners v. City of S. Milwaukee, 197 Wis. 2d 157,
170, 540 N.W.2d 189 (1995). A court properly exercises its discretion when it
examines the relevant facts, applies a proper standard of law, and using a
demonstrated rational process, reaches a conclusion a reasonable judge could reach.
Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982).

¶14 We begin with a discussion of the applicable statutes. “Towns in
Wisconsin possess those powers granted by statute and any powers that are
necessarily implied from a power expressly provided by statute.” Zwiefelhofer v.
Town of Cooks Valley, 2012 WI 7, ¶22, 338 Wis. 2d 488, 809 N.W.2d 362. “The
powers that may be exercised at a town meeting are set forth in WIS. STAT. § 60.10.”
Zwiefelhofer, 338 Wis. 2d 488, ¶22. Along with the “[d]irect powers” enumerated
in § 60.10(1), § 60.10(2) also contains “directives or grants of authority to the town
board,” including that the town meeting may “[a]uthorize the town board to exercise
powers of a village board under [WIS. STAT. §] 60.22(3).” Sec. 60.10(2)(c). There
is no dispute in this case that the Town adopted village powers in 1958, and that
resolution has never been rescinded. Also, as noted above, § 60.22(3) specifically
provides that, pursuant to § 60.10(2)(c), the town board “may exercise powers
relating to villages and conferred on village boards under [WIS. STAT.] ch. 61,

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No. 2022AP720

except those powers which conflict with statutes relating to towns and town boards.”
Sec. 60.22(3).

¶15 WISCONSIN STAT. ch. 61 “grants a broad range of powers to villages.”
Zwiefelhofer, 338 Wis. 2d 488, ¶24. For example, WIS. STAT. § 61.34 provides a
“general grant” of “powers” to the village board, stating that a village board

shall have the management and control of the village
property, finances, highways, streets, navigable waters, and
the public service, and shall have power to act for the
government and good order of the village, for its commercial
benefit and for the health, safety, welfare and convenience
of the public, and may carry its powers into effect by license,
regulation, suppression, borrowing, taxation, special
assessment, appropriation, fine, imprisonment, and other
necessary or convenient means. The powers hereby
conferred shall be in addition to all other grants and shall be
limited only by express language.

Sec. 61.34(1). As relevant to this appeal, WIS. STAT. § 61.342 specifically
references the direct legislation statute, providing that “[t]he provisions of [WIS.
STAT. §] 9.20, relating to direct legislation, shall be applicable to villages.”

¶16 WISCONSIN STAT. § 9.20, in turn, provides the direct legislation
procedure by which “the voters themselves adopt legislation.” Mount Horeb, 263
Wis. 2d 544, ¶13. “The direct legislation statute provides an initiative procedure by
which citizens of a city or village may compel their common council or village board
to pass a proposed ordinance directly or put the proposed ordinance before the local
electors for a popular vote.” Id., ¶14. A direct legislation petition must be signed
by “[a] number of electors equal to at least 15 percent of the votes cast for governor
at the last general election in their city or village” and must be filed “with the city
or village clerk requesting that an attached proposed ordinance or resolution,
without alteration, either be adopted by the common council or village board or be
referred to a vote of the electors.” Sec. 9.20(1). Then, “[w]ithin 15 days after the

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petition is filed, the clerk shall determine by careful examination whether the
petition is sufficient and whether the proposed ordinance or resolution is in proper
form.” Sec. 9.20(3).

¶17 “When the original or amended petition is found to be sufficient and
the original or amended ordinance or resolution is in proper form, the clerk
shall … forward it to the common council or village board immediately.” WIS.
STAT. § 9.20(3). Thereafter, “[t]he common council or village board shall, without
alteration, either pass the ordinance or resolution within 30 days following the date
of the clerk’s final certificate, or submit it to the electors at the next spring or general
election.” Sec. 9.20(4). If adopted by either the council, the board, or the voters,
the ordinance or resolution is not subject to veto powers and cannot be “repealed or
amended within 2 years of adoption except by a vote of the electors.” Sec. 9.20(8).

¶18 In this case, the circuit court determined, after reviewing the statutory
language and relevant case law, that the statutes were not ambiguous and that WIS.
STAT. § 9.20 is not applicable to towns. According to the court, the legal question
is:

Does adoption of village powers under WIS. STAT.
§ 60.22(3) also impose village duties, including the duties
imposed under WIS. STAT. § 61.342? In the alternative, does
the adoption of village powers by a town grant those powers
available to the electors of a village to the electors of the
town?

Thus, the court drew a distinction based on the plain language of the statutes
between a “power” and a “duty.” The court concluded that § 9.20 “provides a power
to electors of a village or city. And a duty to the village or city itself.” Because the
plain language of § 60.22(3) references “powers,” but not “duties,” the court
reasoned that § 9.20’s “provisions are not taken on when a town adopts village

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No. 2022AP720

powers pursuant to [§] 60.22(3).” Accordingly, the court determined that the first
and second elements required for a writ of mandamus—a right “to the legal and
administrative consequences of filing a petition” and a corresponding “duty to act
upon the [Residents’] petition” under § 9.20—could not be satisfied.

¶19 We agree with the circuit court that the Residents have no clear right
to direct legislation, nor did the Town have a positive and plain legal duty to act on
the Residents’ petition, as the plain language of the statutes does not clearly provide
that the provisions of WIS. STAT. § 9.20 are applicable to towns that have adopted
village powers. Accordingly, the Residents are not entitled to a writ of mandamus
in this case. First, the court’s discussion of a distinction between “powers” and
“duties” in the statutory scheme is apt. As the court noted, “power” is defined as
“[t]he legal right or authorization to act or not act; a person’s or organization’s
ability to alter, by an act of will, the rights, duties, liabilities, or other legal relations
either of that person or of another.” Power, BLACK’S LAW DICTIONARY (11th ed.
2019). A “duty,” on the other hand, is a “legal obligation that is owed or due to
another and that needs to be satisfied; that which one is bound to do, and for which
somebody else has a corresponding right.” Duty, BLACK’S LAW DICTIONARY (11th
ed. 2019).

¶20 As noted above, both WIS. STAT. §§ 60.10(2)(c) and 60.22(3)
specifically reference “powers” of the village board. Further, the title of § 60.22
references both the “powers” and “duties” of a town board; yet, § 60.22(3)
references only the “exercise of powers relating to villages and conferred on village
boards under [WIS. STAT.] ch. 61” without specifically requiring that the town board
also adopt any corresponding village board duties. It is also clear, based on our
review of multiple subsections of WIS. STAT. § 60.23, that the legislature knows
how to draft language that would have conferred on a town board both the powers

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and the duties of a village board; however, the legislature did not do so in § 60.22(3).
See § 60.23(3)(g), (27), (28), (32); Milwaukee J. Sentinel v. City of Milwaukee,
2012 WI 65, ¶36 & n.15, 341 Wis. 2d 607, 815 N.W.2d 367; see also WIS. STAT.
§ 61.35 (“[WIS. STAT. §] 62.23 applies to villages, and the powers and duties
conferred and imposed by [§] 62.23 upon mayors, councils and specified city
officials are hereby conferred upon presidents, village boards, and village officials
performing duties similar to the duties of such specified city officials, respectively.”
(emphasis added)).

¶21 This distinction between powers and duties is important in this case
because the provisions of WIS. STAT. § 9.20 are not powers of a municipality. In
Mount Horeb, our supreme court explained that “the procedure for direct local
legislation established in … § 9.20 ‘implements the legislative powers that have
been reserved to the people’ by their elected representatives in the legislature.”
Mount Horeb, 263 Wis. 2d 544, ¶16 (quoting State ex rel. Althouse v. Madison,
79 Wis. 2d 97, 118, 255 N.W.2d 449 (1977)). The court also observed that “[d]irect
legislation is a potentially powerful limitation on governmental authority, a remedy
available to the people when their representative government has become
unresponsive or misrepresentative.” Id., ¶12 (emphasis added); see also Althouse,
79 Wis. 2d at 118-19 (“Those reserved legislative powers are exercised with
particular appropriateness under circumstances where the people are of the opinion
that their elected representatives are not acting in response to the public will.”).
Thus, direct legislation is a power that the people—in other words, the electors—
reserved for themselves.

¶22 It then follows that if the people have the power under WIS. STAT.
§ 9.20 to direct legislation, then the municipality, by its council or board, has a
corresponding duty—or a legal obligation that is owed or due to another and for

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which somebody else has a corresponding right—to comply with the terms of the
direct legislation statute by facilitating the adoption of legislation pursuant to § 9.20.
Thus, as described by the circuit court, “a municipality body’s relation to [§] 9.20,
is one of a duty not a power.” Neither WIS. STAT. §§ 60.10(2)(c) nor 60.22(3) state
that towns, in adopting village powers, also adopt village duties.

¶23 Our conclusion that the legislature did not intend that the provisions
of the direct legislation statute should apply to towns is further supported by the
plain language of the statute. As noted, WIS. STAT. § 60.22 addresses the “[g]eneral
powers and duties” of “[t]he town board.” Subsection (3) then provides that the
town board “may exercise powers relating to villages and conferred on village
boards under [WIS. STAT.] ch. 61, except those powers which conflict with statutes
relating to towns and town boards.” Sec. 60.22(3). Considering the meaning of the
words in the statute, we first note that “exercise” means “[t]o make use of; to put
into action” or “[t]o implement the terms of; to execute.” Exercise, BLACK’S LAW
DICTIONARY (11th ed. 2019). The definition of “power,” as discussed above, is
“[t]he legal right or authorization to act or not act.” Power, BLACK’S LAW
DICTIONARY (11th ed. 2019). “Relating to” means “to have relationship or
connection.” Relate, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/relating (last visited June 7, 2023). “Conferred” is defined
as “to give (something, such as a property or characteristic) to someone or
something.” Confer, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/conferred (last visited June 7, 2023).

¶24 Thus, considering the words of WIS. STAT. § 60.22(3) together: a
town board may make use of a legal right to act or not act that is connected with
villages and given to village boards under WIS. STAT. ch. 61. While direct
legislation is connected with villages by virtue of WIS. STAT. § 61.342, direct

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legislation is not a legal right to act that is given to village boards. That legal right
belongs to the village electors.

¶25 The Residents reject this reading of the statute, arguing that “[t]he key
flaw” in this interpretation is the “conclusion that the only powers that a town
acquires when it acquires village powers are the powers of the village board, and
that powers of the citizens of a village are not also acquired when a town acquires
village powers.” Thus, the Residents assert that when a town adopts village powers,
the town citizens also adopt the powers of the village citizens. In support of this
proposition, the Residents assert that our supreme court’s “binding precedent” in
Zwiefelhofer holds “that all of the powers of a village (and not just the powers of
the village board) are acquired by a town that has adopted village powers.”

¶26 In Zwiefelhofer, residents of the Town of Cooks Valley brought suit
against the town seeking a judgment declaring that a nonmetallic mining ordinance
was invalid. Zwiefelhofer, 338 Wis. 2d 488, ¶1. The residents alleged that the
ordinance was a zoning ordinance implemented without county board approval, but
if the ordinance was not a zoning ordinance, then county board approval was not
required. Id., ¶2. Thus, the “single issue” before our supreme court was whether
“the [t]own’s Nonmetalic Mining Ordinance [was] a zoning ordinance[.]” Id., ¶4.
The court ultimately determined that the ordinance was “a valid exercise of the
[t]own’s non-zoning police power; no county board approval was required.” Id.,
¶80.

¶27 In so holding, and as highlighted by the Residents, our supreme court
stated: “The Town of Cooks Valley adopted village powers in 2001, pursuant to
WIS. STAT. § 60.10(2)(c). Thus, by virtue of the statutes and the Wisconsin
Constitution, the [t]own possesses the full panoply of powers enjoyed by villages,

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including police power and the more specific zoning power.” Zwiefelhofer, 338
Wis. 2d 488, ¶28. The Residents argue that “[t]he ability of the 150 citizens … who
signed the Direct Legislation petition to use the Direct Legislation Statute, which is
specifically listed under Chapter 61 village powers at WIS. STAT. § 61.342, is part
of the ‘full panoply of powers’ referenced by the Wisconsin Supreme Court” in
Zwiefelhofer.

¶28 We disagree that Zwiefelhofer controls this case.7 The Residents take
the discussion in Zwiefelhofer too far. The “single issue” in that case was whether
the nonmetallic mining ordinance was a zoning ordinance, not a more broad
discussion of the conveyance of village powers to towns. Further, Zwiefelhofer
does not address the duties of a town that has adopted village powers, nor does the
case specifically discuss whether town citizens may also adopt the powers that have
specifically been bestowed on village citizens. Most importantly, Zwiefelhofer

7
The Town, in contrast, cites State ex rel. Poole v. Menomonee Falls, 55 Wis. 2d 555,
200 N.W.2d 580 (1972), in support of its position that WIS. STAT. § 9.20 does not apply to towns.
There, our supreme court was asked to decide “whether the provisions of [§] 9.20 [(1969-70)]
providing for ‘direct legislation’ relate only to cities.” Poole, 55 Wis. 2d at 558. Based on the
statute’s plain language, the court determined that the statute did not apply to the electors of villages
because a city was the only type of municipality named in the statute. Id. at 559-60. The Town
argues that Poole is still good law and that when, subsequent to Poole, the legislature amended
§ 9.20 to include electors of villages, the “amendment did not include the electors of towns or the
electors of towns adopting village powers.”

We agree with the Residents that under the circumstances, Poole also does not control the
issue before us. When Poole was decided, the direct legislation statute applied only to cities, and
there was no statutory mechanism by which a village could step into the shoes of a city, similar to
that granted to towns under WIS. STAT. § 60.22(3). After Poole, the legislature amended WIS.
STAT. § 9.20 to apply to villages and created WIS. STAT. § 61.342 to clarify that the direct
legislation statute is applicable to villages. See 1989 Wis. Act 273, §§ 1, 6. Thus, our supreme
court’s decision in Poole does not control here, except to highlight the importance of a plain
language reading of the statute. While § 9.20 currently applies only to cities and villages based on
the statute’s plain language, we recognize that the issue is complicated by the application of
additional statutes in the context of a town.

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does not address the interplay between powers conferred on village boards and WIS.
STAT. § 9.20. Under the circumstances, Zwiefelhofer is inapplicable.

¶29 The Residents also dispute the importance of the circuit court’s
distinction between powers and duties. According to the Residents, “[a]lthough
municipal governing bodies do not have the ‘power’ of Direct Legislation, they do
have ‘duties’ regarding Direct Legislation” and “[t]he exercise of a power
necessarily also encompasses a duty.” In support of their position, the Residents
cite Mount Horeb and Althouse, explaining that in both of those cases the
petitioners “had the power to use Direct Legislation” and the corresponding
municipality “had the duty to either adopt the proposed ordinance or place it on the
ballot.” The Residents explain that they are in the “same position” as the petitioners
in Mount Horeb and Althouse.

¶30 We conclude, however, that the Residents are not in the same position
as the petitioners in those cases. The Residents in this case are residents of a town,
while the petitioners in Mount Horeb and Althouse were residents of a village and
a city, respectively. See Mount Horeb, 263 Wis. 2d 544, ¶2; Althouse, 79 Wis. 2d
at 102. WISCONSIN STAT. § 9.20 unequivocally grants a power of direct legislation
to the residents of cities and villages. We agree with the Residents’ general assertion
that “powers” and “duties” have an obvious correlation. However, the Residents
again extend their reasoning beyond the words of the statute.

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¶31 Next, the Residents argue that we must read the statutes in context.8
See Kalal, 271 Wis. 2d 633, ¶46. As a result, the Residents assert that because WIS.
STAT. § 60.22(3) allows a town to “exercise powers relating to villages and
conferred on village boards under [WIS. STAT.] ch. 61” and because the direct
legislation statute is listed in ch. 61 under WIS. STAT. § 61.342, then the Residents’
use of the direct legislation statute is authorized by the statutes. Further, the
Residents claim that “it is significant that the power of Direct Legislation is
specifically enumerated as a village power in Chapter 61” because “[w]hen the
Legislature amended the statutes to extend the Direct Legislation Statute to villages,
it could have simply amended § 9.20 to include villages” but “it did not stop there—
it went on to also insert the power of direct legislation as a specified village power
in Chapter 61.”

¶32 We disagree with the Residents’ contextual interpretation. While
WIS. STAT. § 61.342 states that the “provisions” of WIS. STAT. § 9.20 are
“applicable to villages,” conspicuously missing from § 61.342 is any reference to
the provisions of § 9.20 being a “power[] … conferred on village boards” or, as the
Residents put it, “a specified village power.” See WIS. STAT. § 60.22(3).
“Applicable” simply means “[c]apable of being applied,” Applicable, BLACK’S
LAW DICTIONARY (11th ed. 2019), and does not somehow suggest a more robust
designation of legislative authority that would alter the plain terms of § 60.22(3). If

8
To the extent that the Residents claim it would be an error “to only focus in isolation on
the language of the Direct Legislation statute where it refers to cities and villages,” we do not
address that issue. First, the Town does not appear to argue that we must consider the plain
language of WIS. STAT. § 9.20 alone as a basis to uphold the circuit court’s decision. Further, we
agree—given the interplay between the statutes—that the question in this case goes beyond the
surface issue of whether § 9.20 on its face applies to towns.

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direct legislation is not a village board power, then direct legislation is not a power
that a town board can wield under § 60.22(3).

¶33 Stated another way, WIS. STAT. § 60.22(3) does not declare that “all
provisions under ch. 61 relating to villages are applicable to towns or town boards
unless those provisions conflict with statutes relating to towns and town boards.”
This is how the Residents would like the statute to be read based on implicit
reasoning. However, precise language is important for statutory interpretation. If
the legislature meant that all the provisions in ch. 61 were to apply to towns, it could
have plainly said so in § 60.22(3). It did not. The legislature instead stated that
town boards “may exercise powers … conferred on village boards,” and we are
bound by the words used by the legislature. See Responsible Use of Rural & Agric.
Land v. PSC, 2000 WI 129, ¶37, 239 Wis. 2d 660, 619 N.W.2d 888 (“[W]e will not
read extra words into a statute to achieve a specific result.” (alteration in original;
citation omitted)); see also Graziano v. Town of Long Lake, 191 Wis. 2d 812, 822,
530 N.W.2d 55 (Ct. App. 1995) (“When interpreting the language of a statute, ‘[i]t
is reasonable to presume that the legislature chose its terms carefully and precisely
to express its meaning.’” (alteration in original; citation omitted)).

¶34 Along these same lines, the Residents claim that when the legislature
amended the statutes to specify that the direct legislation statute is applicable to
villages, “it placed that provision as a sub-part of [WIS. STAT.] § 61.34, which is
titled ‘Village Board Powers.’” Thus, the Residents assert that WIS. STAT. § 61.342
is “included (as [its] numbering makes clear) as [a] subheading[] under the mother
statute (§ 61.34) of Village Board Powers,” which shows that § 61.342 relates to a
“power” rather than a “duty.”

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No. 2022AP720

¶35 The Residents, however, fail to provide support for their claim that
the specific placement of WIS. STAT. § 61.342 within WIS. STAT. ch. 61 has any
significance to our analysis. The residents do not present any legal authority for the
idea of a “mother statute” or the notion that § 61.342 is properly designated as a
“sub-part” of WIS. STAT. § 61.34. See State v. Pettit, 171 Wis. 2d 627, 646, 492
N.W.2d 633 (Ct. App. 1992) (“Arguments unsupported by references to legal
authority will not be considered.”).

¶36 Instead, our research reveals that the numbering of WIS. STAT.
§ 61.342 lacks the Residents’ asserted significance. WISCONSIN STAT.
§ 13.92(1)(bm) requires that the Legislative Reference Bureau (LRB) “prepare the
Wisconsin Statutes for publication” and “formulate and prepare a definite plan for
the order, classification, arrangement, and publication of the statutes.”
Sec. 13.92(1)(bm)1. The statute further provides that the LRB “[m]ay renumber
any chapter or section of the statutes for the purpose of revision, and shall change
reference numbers to agree with any renumbered chapter or section.”
Sec. 13.92(1)(bm)2. WISCONSIN STAT. § 35.18(3) then provides, in pertinent part:

All chapters and sections of Wisconsin statutes shall retain
their present numbers and titles until changed by the
legislative reference bureau or by statute. Each section shall
be designated by a mixed, decimal number, the whole
number corresponding to the chapter and the decimal to the
section’s place in the chapter.

Nowhere in these statutes could we find any support for the Residents’ claim that
§ 61.342 is properly designated as a “sub-part” of § 61.34.

¶37 The Wisconsin Bill Drafting Manual also does not provide support for
the Residents’ claim. At best, it provides that “[b]efore you create a new provision,
determine whether you can amend an existing statutory provision to accomplish the

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No. 2022AP720

purposes. Place the new material in the most appropriate location and rearrange
existing material as necessary.” Wisconsin Bill Drafting Manual § 4.11 (2023-24)
(emphasis added); see also Wisconsin Bill Drafting Manual ch. 3 (2023-24)
(describing the numbering of statutory units); Wisconsin State Legislature, About
the Statutes, https://docs.legis.wisconsin.gov/help/statutes/_2 (last visited June 7,
2023) (“Each statute section is given a mixed decimal section number that consists
of the chapter number to the left of the decimal point and the section’s location
within the chapter to the right of the decimal point…. The decimal system allows
the insertion of new sections in any location.”). Thus, it appears that when a new
decimal-numbered section is placed between two existing sections, that decision is
based on the LRB’s judgment as to where it logically belongs and does not indicate
that the new section is a “sub-part” of the preceding section. If the legislature had
intended WIS. STAT. § 61.342 to be a “sub-part” of WIS. STAT. § 61.34, we assume
it would have included the language currently in § 61.342 as a subsection of § 61.34
rather than creating a new, unrelated statute section.

¶38 Finally, the Residents complain that this decision fails to consider the
policy principles behind the direct legislation statute. According to the Residents,
the direct legislation statute is a method by which the “[l]egislature provided citizens
of a local government a remedy when the citizens believe their local government is
not adequately responding to their concerns.” The Residents further assert that,
here, the Town is “not acting in response to the public will.”

¶39 It is not a foregone conclusion that whenever a unit of government is
not properly responding to the will of the people, public policy dictates that the
electors must have the power to force change. See Mount Horeb, 263 Wis. 2d 544,
¶12 (“As a form of pure democracy, however, [direct legislation] also stands in
contradiction of the principles of republican government, which is designed to guard

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No. 2022AP720

against the oppression of the minority by the majority.”). For example, in
Wisconsin, there is no statewide direct legislation procedure. See Donald Leo Bach,
Vox Populi: Wisconsin’s Direct Legislation Statute, WIS. LAWYER, May 2008, at
15 n.1. Thus, simply because the direct legislation process is applicable to cities
and villages does not mean that it must also be applicable to towns, absent clear
statutory authority. If the Residents disagree, then they should direct these policy
arguments to the legislature. See State v. Stanley, 2012 WI App 42, ¶43, 340
Wis. 2d 663, 814 N.W.2d 867 (2011). In the absence of ambiguity, we must simply
apply the statute as written. See Kalal, 271 Wis. 2d 633, ¶45.

CONCLUSION

¶40 We conclude that the circuit court properly exercised its discretion in
denying the Residents’ petition for a writ of mandamus. The Residents are unable
to demonstrate either “a clear legal right to relief” or “a positive and plain legal duty
on the part of the” Town. As demonstrated by the preceding analysis, WIS. STAT.
§ 9.20 does not apply to the Town and does not grant the Residents the right of direct
legislation. Thus, the Town has no legal duty either to adopt the proposed ordinance

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No. 2022AP720

or to place the issue on the ballot, and, relatedly, the Residents do not have a clear
legal right to that result.9

By the Court.—Order affirmed.

9
The Residents also argue that they have satisfied the remaining two elements required
for a writ of mandamus: “substantial damages or injury should relief not be granted” and “no other
adequate remedy at law.” See Mount Horeb Cmty. Alert v. Village Bd. of Mount Horeb, 2003 WI
100, ¶9, 263 Wis. 2d 544, 665 N.W.2d 229. As to substantial damages or injury, the Residents
argue that in the absence of the proposed ordinance, their rights under the Public Trust Doctrine
will continue to be interfered with and there will continue to be safety issues on the Town’s
waterways, environmental destruction, property damage, and economic harm. As to whether there
is another adequate remedy at law, the Residents note that a writ of mandamus is the proper method
to challenge a municipality’s failure to comply with the requirements of the direct legislation
statute. Id. In response, the Town asserts that the Residents have at least one other adequate
remedy at law under WIS. STAT. § 30.68(4)(a) and (b). Those subsections, respectively, prohibit
operating a motorboat to create a “hazardous wake or wash” and provide that an operator of a
motorboat is liable for damage caused to persons or property as a result of the wake or wash. Given
that all four elements of a writ of mandamus must be established, we need not further address the
parties’ arguments on these points.

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No. 2022AP720

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