Opinion No. Oag 46-87, (1987)

JAMES C. PANKRATZ, Corporation Counsel Door County

In a 1981 opinion, my predecessor concluded that municipal libraries were a matter of paramount local concern and that cities and villages on the basis of home rule powers could therefore adopt rules different from those set forth in chapter 43, Stats. See 70 Op. Att'y Gen. 54, 58 (1981). In 1986, the Legislature enacted section 43.001 which consists of legislative findings and a declaration of policy regarding libraries. You ask whether the enactment of section 43.001 changes the conclusion in 70 Op. Att'y Gen. 54 that municipal libraries are a matter of paramount local concern.

Your request was prompted because the Door County board is considering taking action concerning the Door County library that is inconsistent with the provisions of chapter 43. The library, which is a joint library operated by the county and the City of Sturgeon Bay, was created pursuant to sections 66.30 and 43.56 (now section 43.53).

"``Local affairs' has been construed to include matters which primarily affect the people of the locality, in contrast to matters of ``statewide concern' which affect all the people of the state." Wis. Environmental Decade, Inc. v. DNR, 85 Wis. 2d 518,530, 271 N.W.2d 69 (1978). When there is a controversy between municipalities and the state, the court is required to make the ultimate determination as to whether a matter is of local or statewide concern. Van Gilder v. Madison, 222 Wis. 58, 73,267 N.W. 25, 268 N.W. 108 (1936). In making that determination, however, the court may properly look to relevant declarations of the Legislature. State ex rel. Brelsford v. Retirement Board,41 Wis. 2d 77, 85, 163 N.W.2d 153 (1968). Because matters of public policy are primarily for the Legislature, a determination by it that a certain matter is of statewide concern is entitled to great weight. Fond du Lac v. Empire, 273 Wis. 333, 338,77 N.W.2d 699 (1956). See also Brelsford, 41 Wis.2d at 86.

In concluding in the 1981 and 1984 opinions that municipal libraries were a matter of paramount local concern, my predecessor pointed out that the Legislature had not included a statement in chapter 43 to the effect that municipal libraries were a matter of statewide concern. 70 Op. Att'y Gen. at 57; and 73 Op. Att'y Gen. 86, 91 (1984).

Subsequent to these opinions, the Legislature in 1985 Wisconsin Act 177, sec. 6, created section 43.001, effective April 1986, which provides:

Legislative findings and declaration of policy. (1) The legislature recognizes:

(a) The importance of free access to knowledge, information and diversity of ideas by all residents of this state;

(b) The critical role played by public, school, special and academic libraries in providing that access;

(c) The major educational, cultural and economic asset that is represented in the collective knowledge and information resources of the state's libraries;

(d) The importance of public libraries to the democratic process; and

(e) That the most effective use of library resources in this state can occur only through interlibrary cooperation among all types of libraries.

(2) The legislature declares that it is the policy of this state to provide laws for the development and improvement of public libraries, school libraries and interlibrary cooperation among all types of libraries.

The legislative findings and declaration of policy are tantamount to a statement that libraries, including local municipal libraries, are a matter of statewide concern because they are critical to the educational and the democratic processes.¹

This legislative statement and the provisions of chapter 43 reflect the fact that libraries have evolved from being a matter of local to being a matter of statewide concern. Because of the variety of services offered by libraries and the overwhelming number of books, films and other publications and items available for dissemination through the library, it is financially and physically impossible for each municipality, acting independently, to provide its citizens with all the needed, let alone available, services. The expanding role of the library was discussed in the 1984 opinion when it was stated: "The interplay between technology and information has led libraries to venture into new, non-traditional areas such as offering computer services and maintaining and lending various kinds of audio and audiovisual equipment." 73 Op. Att'y Gen. at 87. In that opinion this office considered the library's services in making available framed pictures, projectors, screens, audio cassette players and AM/FM radios in addition to books and magazines. 73 Op. Att'y Gen. at 89.

The Legislature in section 43.001 recognizes that each library cannot offer all the available services and publications that serve the educational and democratic processes. As a result, the Legislature declared that it is the state's policy to provide laws for the development and improvement of public libraries, school libraries and interlibrary cooperation among all types of libraries. Sec. 43.001 (2), Stats. The Legislature also recognized that the most effective use of library resources in the state can occur only through interlibrary cooperation. Sec.43.001 (1)(e), Stats. Thus, for libraries to fulfill their role in the educational and democratic processes in this state, they must cooperate in an interlibrary network so that the maximum of services can be offered to each citizen of the state. The area from which a citizen can obtain library services and assistance has expanded beyond the local municipality to the limits of the interlibrary network, which can be statewide. See sec. 43.17 (6), Stats. Under these circumstances, the operation and maintenance of public libraries, including municipal libraries, affects all the people of the state and they are a matter of statewide concern because of the extent to which libraries and municipalities rely on one another to furnish library services.

When considered in 1981, the issue of whether municipal libraries were a local or statewide concern was a close question. At that time, this office did not have the guidance of a statement from the Legislature. The Legislature's recent statement coupled with the continuing growth and evolution of library services now leads to the conclusion that the libraries covered by chapter 43 are of statewide concern. As a result of this conclusion, home rule provisions will not justify local departures from the provisions of chapter 43.²

DJH:SWK

¹ As introduced in 1985 Assembly Bill 537, section 43.001 contained a subsection that provided: "The legislature declares that making high quality, publicly funded library resources, services and information readily available to all residents is a matter of statewide concern." That provision was deleted before passage of the bill. The meaning of the deletion in ascertaining legislative intent is ambiguous. The legislature may have deleted it because the Legislature thought libraries were a matter of local concern; or, the Legislature may have deleted the provision because it thought the phrase was unnecessary in light of the other findings and statements of policy. Because of the ambiguity, no definite meaning can be given to the deletion of the provision. As discussed above, I believe that section 43.001, as passed, reflects the legislative belief that public libraries are a matter of statewide concern.

² Because I have concluded that municipal libraries are a matter of statewide concern, it is not necessary to consider in this opinion whether the county board under the home rule provisions of section 59.025 has the power to adopt rules different from the provisions of chapter 43.