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Milwaukee sick leave case bounced back to appeals court (UPDATE)

By Marie Rohde

A deadlocked Wisconsin Supreme Court was unable to decide the constitutionality of the Milwaukee ordinance requiring city employers provide sick leave for workers.

On a 3-3 vote, the Supreme Court on Thursday sent the case back to the Madison-based 4th District Court of Appeals with instructions that the three-judge court should decide the case. Six months ago, the appellate court declined to make a decision, saying it was an issue for the high court.

A decision could come relatively quickly, said Tony Gibert, policy coordinator for the Wisconsin Coalition Against Domestic Violence, a group that has weighed in on the legal issues before the court. Gibert noted the appellate court had been briefed by lawyers on the case and had heard oral arguments.

The ordinance was the result of a referendum approved by 70 percent of voters in November 2008.

Wisconsin courts have struck down only one other piece of legislation that resulted from a referendum, according to arguments made to the high court earlier this month.

“The key issue is the wording of the ballot question,” Gibert said. “The question is how specific the ballot question has to be.”

A Milwaukee judge ruled the ordinance was unconstitutional because some provisions – requirements that victims of sexual abuse and domestic violence be allowed time off to go to court or move to safe locations – were not on the ballot. He also said the ordinance did not violate state or federal law and was an appropriate question for the voters.

Within a month after passage of the referendum, the Metropolitan Milwaukee Chamber of Commerce filed a lawsuit in Milwaukee County Circuit Court asserting the ordinance was unconstitutional on several grounds.

The Milwaukee chapter of 9to5, National Association of Working Women, entered the case. City officials were, at best, lukewarm to the measure with Mayor Tom Barrett arguing it was more appropriate for the state or federal government to decide. The city did not defend the challenge at the appellate level.

The issue has generated considerable interest within the business community and the construction industry.

Charles Engberg, a partner in Engberg Anderson Inc., said the ordinance could increase health care premiums for his design firm, which has offices in Milwaukee and Madison.

The firm’s employees get six paid sick days a year but that would have to be boosted to nine if the ordinance stands.

“It’s well-intentioned legislation,” Engberg said. “Let’s take care of the least among us, but it’s ill-conceived. The documentation alone would be a huge burden on an accounting staff.”

Milwaukee is the only community in the state with such an ordinance. Nationally, Washington, D.C., and San Francisco have similar ordinances.

John Jorgensen, business manager for the Painters and Allied Trades District Council No. 7, said the union supports the ordinance.

“There are some questions about it and whether it would be subject to collective bargaining,” Jorgensen said, “but I don’t think it would have much effect.”

The high court judges who said the ordinance is constitutional were Shirley Abrahamson, Ann Walsh Bradley and N. Patrick Crooks. Those who said it is unconstitutional are David T. Prosser, Patience Drake Roggensack and Michael Gabelman. Annette Kingsland Ziegler did not participate.

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