March/April 2017 Issue

Also in this issue: Recreational Immunity Applied When Grandparent Injured While Supervising Grandchildren at City-Owned Pool     |     Court of Appeals Upholds Oshkosh Special Events Ordinance     |     Employer Attendance Policies and Unemployment Compensation

Wisconsin Supreme Court Rules That The Public Can Carry Concealed Weapons On Public Transportation

02.28.17

On Tuesday, March 7, 2017, the Wisconsin Supreme Court issued a decision in Wisconsin Carry, Inc. v. City of Madison, 2017 WI 19, that prohibits municipalities from enacting rules that bar individuals from carrying guns on public transportation. The lawsuit arose from a Madison Metro Transit rule that banned guns on City of Madison buses. The rule was challenged by pro-gun group Wisconsin Carry, Inc., which argued that the law violated Wis. Stat. § 66.0409(2), which states in pertinent part:

Except as provided in subs. (3) and (4), no political subdivision may enact or enforce an ordinance or adopt a resolution that regulates the … possession, bearing, [or] transportation … of any knife or any firearm … unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute. 

Wisconsin law authorizes residents to carry concealed weapons upon obtaining the required license. Wisconsin Carry argued that Wis. Stat. § 66.0409(2) prohibits municipalities from enacting gun control ​“ordinances” or ​“resolutions” that are stricter than state law limitations and the Madison Metro ​“rule” was the same as a municipal ordinance or resolution that was preempted by state law. 

A Dane County Circuit Court and the Wisconsin Court of Appeals ruled in favor of the City of Madison, finding that the rule did not amount to an ordinance or resolution. The Wisconsin Supreme Court disagreed. In a 5 – 2, 74-page decision, the court held that when a municipality loses authority to legislate on a subject, its sub-units also lose the ability to legislate on the subject. In reaching this decision, Justice Daniel Kelly noted that ​“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.” ​“Thus, the plain meaning of the Local Regulation Statute [Wis. Stat. § 66.0409(2)] is that the Legislature withdrew from the city’s governing body all authority to legislate on the subjects it identifies.” 

In the dissent, Justice Ann Walsh Bradley noted that the majority’s decision abandoned rules of statutory construction because Madison Metro Transit’s ​“rule” is not the same as an ​“ordinance” or ​“resolution” as required by the plain language of Wis. Stat. § 66.0409(2). Justice Bradley noted that ​“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.” This was the same reasoning adopted by Dane County Circuit Court Judge Ellen Berz and the 4th District Court of Appeals. In response to this argument, Justice Kelly indicated that it would have been impossible and unreasonable for the legislature to include every label for a legislative act in § 66.0409(2).

City of Madison Mayor Paul Soglin indicated that he plans to ask the legislature to amend the law to allow cities to regulate guns on buses, similar to their authority to regulate guns in public buildings. 

— Kathryn A. Harrell