The Wisconsin Supreme Court is weighing whether the Milwaukee Common Council went beyond what voters approved in a referendum requiring businesses offer sick leave to workers.
The court, which heard oral arguments Friday in the Washington County Courthouse in West Bend, also will decide whether Milwaukee County Circuit Court Judge Thomas Cooper was correct when he ruled the ordinance is unconstitutional because it contains a provision that lets time spent in court by victims of sexual assault and domestic violence count as sick time.
In his decision, Cooper said city voters had the right to vote on a paid sick leave ordinance. He also found the ordinance did not conflict with state or federal labor laws and that the referendum was clearly written.
According to Cooper’s decision, the problem with the referendum is it did not mention victims going to court, but the ordinance does. Cooper, in the decision, said he had to rule the entire ordinance unconstitutional because of the difference between the referendum and the ordinance.
Arguing to the Supreme Court on Friday, Scott Beightol, a lawyer for the Metropolitan Milwaukee Association of Commerce, agreed, saying it’s “all or nothing.”
Barbara Zack Quindel, a lawyer representing the Milwaukee chapter of 9to5, National Association of Working Women, argued court time should be considered appropriate for sick leave because domestic violence is a public health crisis in the United States. However, she said, even if the court does not agree with that premise, the rest of the ordinance should be found constitutional.
Another key issue is when the ordinance went into effect.
Beightol argued it went into effect November 2008, when voters approved the referendum. Quindel said it should not go into effect until after the Supreme Court reaches a decision. She said direct legislation cannot be altered by city government for at least two years after it goes into effect.
The earlier date essentially would allow the Milwaukee Common Council to alter the ordinance and override the will of the voters before the ordinance actually goes into effect, Quindel said.
Chief Justice Shirley Abrahamson said there only has been one other case in Wisconsin in which the court has struck down legislation based on a referendum.
“The general rule has been: Give it to the voters,” she said. “They’re smart enough to figure it out.”
The ordinance requires workers get at least one hour of paid sick leave for every 30 hours worked in Milwaukee. Companies with fewer than 10 workers must offer at least five sick days, and larger companies must let employees accrue at least nine days.