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November 2, 1983


Appeal from an order of the circuit court for Waukesha county: Neal P. Nettesheim, Judge.

Petition to review denied.

Scott, C.j., Brown, P.j. and Robert W. Hansen, Reserve Judge.

The opinion of the court was delivered by: Scott

The Waukesha city clerk received a petition, with an attached proposed ordinance, from a member of the public demanding that it be forwarded to the city council for consideration, pursuant to sec. 9.20, Stats. The clerk refused to forward it because she believed the proposal was administrative, not legislative, and, therefore, did not fall under the statute. The petition's circulator, Ralph M. North, appeals from a trial court denial of his writ of mandamus. Because we conclude that the city clerk's duties under sec. 9.20 are ministerial only, such that she has no quasi-judicial authority to make the decision which she did, we reverse.

The petition was filed with the city clerk on January 31, 1983. The proposed ordinance *fn1 sought to control the sources of funding for the Transit System Utility by creating sec. 3.17(6) of the Municipal Code of the City of Waukesha. On February 14, 1983, the Waukesha city clerk, Ruth Goetz, certified that the petition had sufficient signatures but rejected the attached proposed ordinance as "not the proper subject for direct legislation because it is an administrative matter . . . ." In March, petitioners sought a writ of mandamus in the circuit court of Waukesha county to direct the city clerk to forward the petition and proposed ordinance to the common council. The trial court, apparently relying on an opinion of the Attorney General regarding the city clerk's role in direct legislation, 69 Op. Att'y Gen. 41 (1980), entered an order dismissing the action because the court found the proposed ordinance:

invalid in its entirety for the reason that subparagraph (b) thereof seeks to implement administrative policy and is therefore not a proper subject which can be presented to the Council for consideration under the provisions of Sec. 9.20, Wis. Stats.

The issuance of a writ of mandamus lies within the discretion of the trial court and will be affirmed unless the trial court abused its discretion. Miller v. Smith, 100 Wis. 2d 609, 621, 302 N.W.2d 468, 474 (1981); State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368, 375-76, 166 N.W.2d 255, 258 (1969). "A writ of mandamus lies to compel public officers to perform their prescribed statutory duties." Morrissette v. DeZonia, 63 Wis. 2d 429, 432, 217 N.W.2d 377, 379 (1974). The duty of a public officer to act must be clear and unequivocal, and the responsibility to act must be imperative. Kurkierewicz at 377-78, 166 N.W.2d at 259-60. If the duty is not clear and unequivocal and requires the exercise of discretion, it is an abuse of discretion for a court to issue the writ. Morrissette at 432, 217 N.W.2d at 379.

The City argues that the city clerk's duties under sec. 9.20(3), Stats., to determine whether the petition is sufficient and whether the proposed ordinance is in proper form, are inherently discretionary. We disagree.

"'Every statute to some extent requires construction by the public officer whose duties may be defined therein. Such officer must read the law, and he must therefore, in a certain sense, construe it, in order to form a judgment from its language what duty he is directed by the statute to perform. But that does not necessarily and in all cases make the duty of the officer anything other than a purely ministerial one. If the law directs him to perform an act in regard to which no discretion is committed to him, and which, upon the facts existing, he is bound to perform, then that act is ministerial, although depending upon a statute which requires, in some degree, a construction of its language by the officer.'"

Walter Laev, Inc. v. Karns, 40 Wis. 2d 114, 120, 161 N.W.2d 227, 230 (1968) (citations omitted).

The duty of the city clerk under sec. 9.20, Stats., is unequivocally of a mandatory, ministerial, non-discretionary nature. The statute requires the city clerk to forward a petition and proposed ordinance to the common council if there are sufficient valid signatures and the proposed ordinance is in proper form. It is not within Goetz's authority to make a substantive determination regarding the appropriateness of the proposed ordinance for direct legislation

Although the issue was not specifically addressed at the hearing for the writ of mandamus, the trial court implicitly found that a city clerk has the authority under sec. 9.20, Stats., to make a substantive evaluation of the proposed ordinance. *fn2

The trial court apparently relied on a 1980 opinion of the Attorney General, 69 Op. Att'y Gen. 41, regarding the authority and basis on which a city clerk may refuse to forward to the common council a petition and ordinance that otherwise complies with the requirements of sec. 9.20(3), Stats. The Attorney General's opinion concludes that "where the authority to review and decline to further consider a petition has been found in the statutory language conferring authority on the council, at least as extensive as authority is vested in the city clerk." Att'y Gen. at 44.

The Attorney General's opinion is only persuasive authority. An opinion has considerable weight if the legislature later amends and revises a statute but makes no changes in response to the opinion. Town of Vernon v. Waukesha County, 99 Wis. 2d 472, 479, 299 N.W.2d 593, 598 (Ct. App. 1980), aff'd, 102 Wis. 2d 686, 307 N.W.2d 227 (1981). However, an Attorney General's opinion, especially if recent, is only entitled to such persuasive effect as a court deems the opinion warrants. Hahner v. Board of Education of Wisconsin Rapids, 89 Wis. 2d 180, 192, 278 N.W.2d 474, 479-80 (Ct. App. 1979). In this case, the Attorney General's opinion is of recent origin. It has not been interpreted in the case law, nor has the legislature revised the statute with which it deals. ...

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