Public Accountability • Civic Literacy • Common-Sense Conversations
Vol. 2, Issue No, 5| February 6, 2026, a seven-minute read (1760 words)
What’s Ahead: The Fog Machine: How City Hall Manages to Misread a Law That Has Only Two Choices
(Janesville WI –) Wisconsin’s direct-legislation law gives the Janesville City Council only two options: “Adopt” or “Send to Voters.” Instead, City Hall has spent the week drafting memos with objections that the Council cannot legally consider. The latest staff memos on Monday’s agenda repeats arguments already rejected by the Wisconsin Supreme Court. This is procedural stalling, not genuine analysis.
The “Constitutional Concern” That the Council Cannot Touch
The City Attorney’s memo opens with a flourish: The ordinance might be unconstitutional!
And? Under State ex rel. Althouse v. Madison, the Council is prohibited—yes, prohibited—from deciding that question.
Direct legislation bypasses the Council’s constitutional filter. That is the point of direct legislation.
So, when staff warns the Council about takings law, bundle-of-rights theory, and hypothetical future owners, they are offering legal opinions the Council has no power to act on—much like a referee explaining the rules of cricket during a football game.
Vagueness? Ambiguity? Not Grounds for Rejection.
The memo then pivots to drafting criticism: missing definitions, unclear thresholds, contradictory text.
Again irrelevant.
§ 9.20 does not allow the Council to decline a petition because it thinks the drafters needed a better editor. Bad drafting goes to the courts, not to the Council agenda.
City Hall knows this. The Wisconsin Supreme Court has said it plainly.
Yet we still get pages of stylistic critiques dressed up as legal barriers.
The “Improper Referendum System” That the Supreme Court Already Upheld
Staff argues that the petition improperly requires referenda for future decisions.
Unfortunately for that argument, the Wisconsin Supreme Court already upheld a nearly identical ordinance in the Mount Horeb case.
City Hall tries to wave this away by suggesting the city could ask courts to “reconsider” Mount Horeb. That is not legal advice—that is dreaming.
Municipal governments do not get to relitigate precedents they find inconvenient.
Administrative vs. Legislative: Another Dead-End Argument
The memo warns that the ordinance intrudes into the City’s administrative operations—fire service, sewer hookups, infrastructure needs.
But the ordinance does not micromanage any of that. It governs one thing and one thing only: whether the city green lights a mega-project on the GM/JATCO site.
And authorizing development on municipal land is, and always has been, a legislative function.
Mount Horeb again: the Supreme Court explicitly rejected the argument that voter approval of land-use decisions is an intrusion into “administration.”
City Hall is relitigating a case it already lost—before it even entered the room.
The “Governance Disruption” Argument That Could Be Used Against Any Ordinance
Staff warns ominously that the petition will “disrupt the structure of City government.”
Translation: It will limit the City Council’s discretion.
Of course it will.
Every ordinance limits the Council’s discretion. That is what laws do.
If a future Council doesn’t like the rule, they can seek to amend or repeal it. What they cannot do is pretend the rule is invalid before voters even get to consider it.
The Real Issue: Fear of Voters
After all the hand-wringing and creative lawyering, the memo ends with the real message:
This ordinance might stop the data center.
That is not a legal point.
That is a political worry being laundered through staff reports.
Call it what it is: City Hall prefers discretion over democracy.
What the Law Actually Says
The law is brutally simple:
- The petition is valid.
- The Council cannot judge its constitutionality, clarity, or wisdom.
- The Council must either adopt the ordinance or send it to voters.
That’s it.
That is all.
Everything else in the staff memos is smoke.
When the fog clears, the Council will face the same two buttons the statute gave them on Day One: Adopt or Refer.
The only unlawful act would be inventing a third option.
Conclusion: A recent delay has extended the process by seven months, postponing the real public hearing requested by some council members. Given ongoing negotiations between the city and the developer, the outcome remains uncertain. The focus is now on finalizing the sale agreement before the April election, with educational sessions planned to inform the public as permitted by city leadership. https://www.youtube.com/watch?v=Bby9oi7-N5I
For the 4,700 people who signed the petition, that wet spot on your pant leg is only rainwater.
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FACT SHEET: DIRECT LEGISLATION & THE GM/JATCO PETITION
What the Law Actually Requires — and What City Hall Got Wrong
1. THE COUNCIL HAS ONLY TWO LEGAL OPTIONS
- Wis. Stat. § 9.20 provides only two choices:
Adopt the ordinance or send it to voters. - No authority exists for the Council to judge constitutionality, clarity, or policy impacts.
- Supreme Court (Althouse) explicitly prohibits councils from ruling on validity.
2. CONSTITUTIONAL ARGUMENTS ARE NOT RELEVANT TO THE COUNCIL
- Constitutional objections are for courts, not city councils, under § 9.20.
- The “regulatory taking” argument is misplaced because the land is ** municipal property**, not private.
- Future owners take property subject to local laws; that is not a “taking.”
3. VAGUENESS OR DRAFTING FLAWS ARE NOT GROUNDS FOR REJECTION
- The Council cannot refuse a petition because of alleged poor drafting.
- Vagueness is a judicial review issue, not a legislative gatekeeping tool.
- Even sloppy text must be adopted or referred if signatures are valid.
4. “UNAUTHORIZED REFERENDUM” CLAIM IS CONTRADICTED BY CASE LAW
- The Wisconsin Supreme Court’s Mount Horeb decision upheld a similar voter-approval requirement for future actions.
- Staff’s argument is the same one already rejected by the Court.
- Municipalities cannot “seek reconsideration” of binding precedent.
5. ADMINISTRATIVE/LEGISLATIVE DISTINCTION DOES NOT APPLY HERE
- Land disposition and approval of major development is a legislative act.
- Voter approval of legislative actions is explicitly allowed under § 9.20.
- Mount Horeb again rejected claims that development-approval referenda intrude on administration.
6. “GOVERNANCE DISRUPTION” IS A POLICY OPINION, NOT A LEGAL BASIS
- All ordinances limit governmental discretion—that is normal.
- Policy impacts cannot be used to block direct legislation.
- Council discomfort with voter oversight is not a legal defect.
7. THE PETITION IS NOT A “NO DATA CENTER” BAN
- It simply requires voter approval for mega-scale development on one site.
- The city already exercises full control over the site; voters would now share in that control.
- Political consequences are irrelevant under § 9.20.
8. STAFF MEMOS ADDRESS ISSUES THE COUNCIL IS BARRED FROM DECIDING
- Constitutional issues? Off-limits.
- Drafting problems? Off-limits.
- Policy worries? Off-limits.
- Administrative concerns? Already settled by the Supreme Court.
9. BOTTOM LINE
- City staff presented arguments the Council cannot legally act upon.
- The memo creates the appearance of discretion where none exists.
- The only lawful actions remain:
- Adopt the ordinance, or
- Send it to voters.
No third option. No procedural fog. No discretionary veto.
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Direct Legislation Petitions and Public Participation: A Brief Overview
Letter to the Editor
To the Editor,
Thank you for your continued perspective on local community issues.
I just read your 1.29 Hypothetically Speaking and am messaging you as a Janesville resident.
One note that might merit correction: it is not clear that Cass’ vote to put the petition on the April ballot was a change of heart—that is not entirely clear as he notes at 1:01:46 of the City Council meeting broadcast.
Also, it would be helpful to note that Council has 30 days to act after receipt of the ordinance. The public hearing on Feb. 9 is within that window of time. Not noting that appears misleading and contributing to a perception that the Council is silencing community voices, which is not helpful for deliberative democracy.
Thank you for your attention to these matters.
— C.
Response from Hypothetically Speaking:
Dear C,
Thank you for taking the time to write. Your note unintentionally illustrates the very point at issue.
Yes, the Council has 30 days to act. But that timeline is not the problem, because Wis. Stat. § 9.20 does not require a public hearing, committee review, or any step normally used for adopting city ordinances. Under state law the Council has only two choices:
- Adopt the petition as written, or
- Place it on the ballot for the voters.
That’s it. No hearing. No process. No detours.
The concern raised in Hypothetically Speaking is that the city placed the petition inside the city’s ordinance-adoption procedure, complete with a public hearing, despite § 9.20 being designed to bypass that very process.
That’s not a minor technicality.
That is the core issue.
When a direct-legislation petition is run through an unrelated city-code procedure, the effect is to blur the statutory path, introduce steps that do not exist in law, and delay or complicate what is meant to be a simple, voter-driven choice.
Far from strengthening deliberative democracy, it places the public in the position of having to decipher which process they are actually witnessing—and why.
So, while the Feb. 9 hearing may sit within the 30-day window, its placement creates the appearance, and for many residents, the unmistakable reality, of using the ordinance process to slow a petition the statute intends to fast-track.
That is the real affront to deliberative democracy, and the reason the distinction matters.
Thank you again for reading, and for engaging in the conversation.
Building for Promised Change: Awaiting Transformation
(Janesville WI–) A quiet storm is gathering along Milton Avenue, and next week Hypothetically Speaking pulls back the curtain on the corridor we all think we know. For decades, Milton has been Janesville’s commercial heartbeat—familiar, fast, and fiercely auto‑oriented. But beneath the neon signs and frontage‑road tangles lies a story about how a mid‑century design experiment shaped our city’s identity, our safety, and our economic future far more than most residents realize. The upcoming feature digs into the origins, the consequences, and the crossroads we now face as the Woodman’s Center rises and the community begins asking harder questions about what kind of gateway Janesville deserves.
This isn’t a nostalgia piece, and it isn’t a technical memo. It’s a clear‑eyed look at how Milton Avenue became frozen in time—and why the next chapter could redefine the north side for a generation. From the outdated frontage‑road model to the opportunities hiding in plain sight, next week’s story lays out the stakes with candor, context, and a vision for what comes next. If you care about Janesville’s future, you won’t want to miss it.
Watch for it next week from Hypothetically Speaking: Your weekly dispatch from Wisconsin’s heartland to America’s horizon. Every Friday, Hypothetically Speaking explores the intersection of policy, people, and possibility—inviting dialogue and celebrating civic courage.
Because democracy thrives when government pays attention to its people—and if it fails to do so, we seek explanations.
Community Spotlight: Havana Coffee
If you are looking for a place to reflect on your civic journey—or just fuel up before a council meeting—stop by Havana Coffee at 1250 Milton Avenue. It is a true Janesville gem, where espresso meets engagement.
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With hearty food, warm service, and a strong commitment to local journalism, Havana Coffee proudly supports the Rock County Civics Academy and all who believe in informed participation.
We are grateful to Daniela and her team for creating a space where ideas percolate and conversations matter.
Nowlan Law Firm and Attorney Tim Lindau
We also extend our thanks to Attorney Tim Lindau and the Nowlan Law Firm for their support of civic education and democratic renewal. Tim’s encouragement—and his belief in the power of our mission.
Together, with partners like Havana and Nowlan, we are building a culture of engagement that honors both tradition and transformation.
HYPOTHETICALLY SPEAKING: Where ideas meet action—and citizens shape the future.
What if transparency was the norm, not the exception?
What if civic engagement became Rock County’s defining strength?
Every movement begins when someone decides “now is the time.” That someone could be you.
A CALL TO LEADERSHIP
Leadership isn’t about ego—it’s about service.
It’s showing up, listening deeply, and acting with purpose.
Three ways to begin:
• Volunteer with a civic group
• Serve on a local board or commission
• Run for public office and lead the change.
“If not you, who? If not now, when?” — Hillel the Elder
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FINAL THOUGHT
Democracy is a skill—one that strengthens with practice.
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Stay curious. Stay engaged. Stay connected.
Because the next chapter of Rock County’s story is being written—right now.
©2025 Rock County Civics Academy
Produced in partnership with the Rock County Civics Academy to promote open dialogue, ethical leadership, and civic participation across Wisconsin’s heartland. Illustrations by B. S. MacInkwell. Published by CSI of Wisconsin, Inc. P. O. Box 8082, Janesville WI 53547-8082
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