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Court Rules City Cannot Ban Guns on Public Buses; May Go Further
By Daniel Olson, Assistant Legal Counsel, League of Wisconsin Municipalities 

A state law that preempts Wisconsin municipalities from enacting gun ordinances or resolutions that are stricter than state law also prohibits enacting rules that prohibit guns on public transportation, the Wisconsin Supreme Court ruled Tuesday. In a 5-2 decision, the Court conservative justices overturned an appeals court decision that allowed a Madison Metro Transit rule to ban firearms on Madison city buses.
The city asserted that the Metro rule was not the same as an ordinance or resolution imposing stricter local gun controls. But the majority determined there was no action the city or a sub-unit could take that would not be considered an ordinance or resolution.

"Consequently, if a statute removes the authority of a municipality's governing body to adopt an ordinance or resolution on a particular subject, the governing body loses all legislative authority on that subject," Justice Kelly wrote. "Thus, the plain meaning of the Local Regulation Statute is that the Legislature withdrew from the city's governing body all authority to legislate on the subjects it identifies." "Because a municipality cannot delegate what it does not have, the city is entirely powerless to authorize any of its sub-units to legislate on the subject," Kelly wrote.

In her dissent, which Justice Abrahamson joined, Justice Bradley wrote that the issue was one of statutory interpretation, guided by long-standing judicial rules of statutory interpretation that begin with the plain language of the statute. Applying this rule, both the Dane County Circuit Court and the 4th District Court of Appeals found that the Metro rule barring weapons aboard buses was not an ordinance or a resolution.

Justice Bradley noted the majority's activism to rewrite the plain language of the statute to include rule. "Discarding seminal rules of statutory interpretation, the majority slips into legislative mode, and ignores the plain meaning of the words chosen by the legislature. It rewrites the statute in a manner it wishes the legislature had chosen, a manner chosen by several other states, but not Wisconsin, she wrote."

But Kelly wrote that the Court is not "merely arbiters of word choice." Instead, the court must apply the plain meaning of the statute, emphasizing the word "meaning," which he explained is not derived simply from text but includes an examination of "text, context and structure."

"If a city's governing body thereby loses authority to legislate on that subject," Kelly wrote, "we must then consider whether a city's sub-unit can nonetheless legislate on that subject when authority is denied to the governing body itself." The majority decided the answer was no.

"The commission has no authority but for what it received from the city," Kelly wrote, "and the city has no authority to legislate contrary to the boundaries established by the Local Regulation Statute. This means that if the rule is more stringent than a state statute, then to that extent the city no longer has authority to enforce it."

As to whether the Legislature should have included the word "rules" in the pre-emption law if it meant to bar cities from making rules, as opposed to ordinances and resolutions, Kelly wrote that it would require the Legislature "to list every possible label for a legislative act" that it intended to withdraw from municipal authority. "But this is law-making as comedy, with a hapless Legislature chasing about a wily municipality as it first enacts an ordinance on a forbidden subject, and then a policy, then a rule, then a standard, and on and on until one of them wearies of the pursuit or the other exhausts the thesaurus," Kelly wrote. However, he did not address how far the Court can go to augment the text of a statute with this brand of statutory "meaning" analysis.
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