Superior’s City Council will likely have to make a decision rather than resort to a deck of cards to select a president after the mayor sought a second opinion of the city attorney’s interpretation of the law.

Mayor Jim Paine consulted with former city attorney Toby Marcovich and Wisconsin League of Municipalities attorney Maria Davis, as well as conducted his own research into state law, city ordinances and Robert’s Rules of Order in crafting an alternate opinion.

City Attorney Frog Prell concluded the Council could resort to drawing cards to determine who would serve as its president until next April’s election — Ruth Ludwig or Brent Fennessey.

Over a series of votes since April, councilors have split 5-5 for each of the nominees; however, one councilor abstained during each of the votes, which prevented a tie Paine intended to break. Each vote resulted in a 5-4 split because one councilor abstained from the vote.

At the May 21 meeting, after Paine ruled a motion to go to cutting of cards to break a possible tie was out of order, Fennessey sought a legal opinion on the matter from Prell.

Prell stated in his opinion that ruling was “not supported by local or relevant case law.”

“Mr. Prell’s opinion must be dismissed as lacking authority or sufficient guidance,” Paine wrote in a document outlining his intent to overrule a drawing of cards again when the Council votes for its president Tuesday, June 18. “It is factually false, contradictory, insufficiently research and frequently irrelevant. It invents precedent where none exists, ignores obvious precedent, invents custom that it later admits does not exist and undercuts its own false logic.”

“Unlike any other matter before the council, such as a resolution, ordinance or approval of a contract, our council has historically provided for a cutting of cards in the event of a tie that remains unbroken by the mayor,” Prell stated in his opinion.

In 2009, a cutting of the cards did decide the outcome of the council president election, but it is the only time in the last 50 years that the council president was selected by a game of chance.

While the election of a president the following year tied, that tie was broken by then-Mayor David Ross. Prior to that, ties in council president and council vice president elections were broken through subsequent rounds of voting in 1984, 1985, 1986 and 1992, according to Council minutes dating back to 1978.

Paine stated in some cases, the use of chance cited by Prell was included in city ordinances in St. Francis and La Crosse. No such ordinance exists in Superior, he said.

“The election for the 2019 Superior City Council President has never tied,” Paine wrote. “While Mr. Prell has made a compelling case for the use of drawing lots or cards in the event the mayor declined to vote, that is not the scenario at hand. The question is whether the majority of the body has the power to decline to choose the City Council president by ballot and instead determine the winner by chance.”

Marcovich stated in his opinion that there is no legal option for converting an unequal number of votes to a tie.