Beckstrom v. Kornsi, 425

• Decision Date: 07 May 1974
• Docket Number: No. 425,425
• Citation: 217 N.W.2d 283,63 Wis.2d 375
• Parties: In re Recall of Miles Beckstrom, Mayor of Montreal. Miles BECKSTROM, Appellant, v. Wayne J. KORNSI et al., Respondents.
• Court: Wisconsin Supreme Court

Page 283

217 N.W.2d 283

63 Wis.2d 375

In re Recall of Miles Beckstrom, Mayor of Montreal Miles BECKSTROM, Appellant, v. Wayne J. KORNSI et al., Respondents.

No. 425.

Supreme Court of Wisconsin.

May 7, 1974.

Wartman & Wartman, Ashland, for appellant; Robert L. Swanson, Ashland, of counsel.

Alex J. Raineri, Hurley, for respondents.

CONNOR T. HANSEN, Justice.

We are of the opinion that the following issues are dispositive of this appeal:

1. Whether a circuit court can determine a recall petition states good and sufficient reason for the recall of a municipal official without permitting that official to offer proof disputing the allegations contained therein?

2. Whether the affidavit of the circulators of each petition for recall was sufficient under sec. 8.15(4)(a), Stats.?

TRUTH OF FALSITY OF ALLEGATIONS OF PETITION.

As contrasted with the companion case of Mueller v. Jensen, ¹ in the instant case the appellant did not argue in the trial court that the allegations of recall were insufficient. Instead, the appellant sought to offer proof that the allegations were untrue.

The circuit court ordered a hearing pursuant to the recall statute, sec. 9.10(4)(a), Stats., which provides as follows:

'(4)(a) For the recall of any city official, the municipal clerk shall verify the eligibility of the respective signers and circulators, shall certify thereto and shall transmit the petition to the clerk of circuit court within 10 days of the filing date. The circuit court within 10 days after receipt of the petition shall determine by hearing whether the petition states good and sufficient reason for the recall. The clerk of circuit court shall notify the incumbent of the hearing date. The person subject to recall and the petition circulators may appear by counsel and the court may take testimony with respect to the recall petition. If the circuit court judge determines the grounds stated in the petition and proof offered at the hearing show good and sufficient reasons for recall, the judge shall issue a certificate directing the common council to hold an election under this section. If the reasons are found insufficient or do not show good cause, issuance of the certificate shall be denied. Any party aggrieved by the circuit court determination may appeal to the supreme court within 10 days following the circuit court determination by filing a notice of appeal with the clerk of the supreme court. An appeal under this section shall have preference on the supreme court calendar. The appeal shall stay enforcement of a certificate issued by the circuit court until the supreme court determines the appeal.'

At the hearing, the appellant endeavored to present proof that the majority of the allegations of the petition were substantially incorrect. The court was of the opinion that sec. 9.10(4)(a), Stats., made the taking of testimony discretionary with the court. After ascertaining that the parties intended to offer testimony concerning the truth and falsity of the allegations, the court concluded that this '. . . is a political and not a judicial matter . . .' and refused to entertain such testimony. The court held that the petition was sufficient to warrant a recall election and, without determining the truth of the allegations of the petition, concluded that the veracity of these allegations was a matter for the electors of Montreal. The appellant contends that he should not have been precluded from offering proof that the allegations of the petitions were untrue.

The Wisconsin State Constitution provides for the recall of certain public officials. Article XIII, sec. 12, provides in part as follows:

'. . . The qualified electors of the state or of any county or of any congressional, judicial or legislative district may petition for the recall of any elective officer after the first year of the term for which he was elected, by filing a petition with the officer with whom the petition for nomination to such office in the primary election is filed, demanding the recall of such officer . . .. This article shall be self executing and all of its provisions shall be treated as mandatory. Laws may be enacted to facilitate its operation, but no law shall be enacted to hamper, restrict or impair the right of recall.'

Sec. 9.10, Stats., provides statutory guidance for the recall of public officials. Sec. 9.10(1) and (2)(a), provide as follows:

'9.10 Recall. (1) The qualified electors of the state, county, congressional, judicial or legislative district, or city may petition for the recall of any elective official after the first year of the term for which he is elected by filing a petition with the same official with whom the petition for nomination to the office was filed demanding the recall of the officeholder. The petition shall be signed by electors equal to at least 25% of the vote cast for the office of governor at the last election within the same district or territory as that of the officeholder being recalled. In cities, if at the last election any group of candidates were voted for in common to fill 2 or more offices of the same designation, the required number of petition signers shall be equal to 25% of the number computed by dividing the total vote for that office by the number of offices filled jointly.

'(2)(a) The preparation and form of the recall petition shall be governed by s. 8.15. In addition, a recall petition for a city office shall contain a specific statement of good and sufficient reason upon which removal is sought.' (Emphasis supplied.)

The additional requirement for the petition for recall for a city official to contain a specific statement of good and sufficient reason is constitutionally permissible in view of the fact that art. XIII, sec. 12, guaranteeing the right of qualified electors of the state, county, congressional, judicial or legislative district to recall any elective officer, does not apply to municipal officials. It is generally recognized, as follows:

'Recall is a procedure by which an elective official may be removed at any time during his term, or after a specified time, by vote of the people at an election called for such purpose by a specified number of citizens, and the general control which the legislature has over the subject of the removal of public officers is usually considered sufficient to permit the enactment of a system for their recall. The principle underlying the recall of public officers has been defined as an effective speedy remedy to remove an official who is not giving satisfaction to the public and whom the electors do not want to remain in office, regardless of whether he is discharging his full duty to the best of his ability and as his conscience dictates. Hence, the recall statutes do not contemplate a judicial inquiry into the truth of specific charges of misconduct, but are designed to afford relief from popular dissatisfaction with the official conduct of an officer.' (Emphasis supplied.) 63 Am.Jur.2d, Public Offices and Employees, p. 770, sec. 238.

The recall of city officials in Wisconsin is of statutory origin. Sec. 9.10(7), Stats., provides:

'The purpose of this section is to facilitate the operation of article XIII, section 12, of the constitution and to extend similar rights to city electors.' (Emphasis supplied.)

Article XIII, sec. 12, does not require a determination that the petition states 'good and sufficient reason' for recall. The statutory requirement in Wisconsin that the petition state sufficient reasons for recall of municipal officers is for the purpose of focusing the attention of the electors upon the specific reasons for recalling the official.

' § 245. Petition for recall--statement of grounds.

'A proceeding for the recall of a public officer is initiated by the execution of a petition by a specified number or percentage of electors. The form and contents of such petition are usually prescribed in the provision authorizing the proceeding, and the petition for a recall must in substance conform to these requirements. Some statutes require a general statement only of the grounds on which the removal is sought, while others require that the reason or reasons for recall be stated clearly. Where the requirement is that the petition state clearly the reason or reasons for recall, it must inform the electors on that issue, and the reason or reasons assigned must be based on some act or failure to act which in the absence of justification would warrant the recall. However, where petitioners are required to state only generally their grounds or reasons for demanding a recall, the petition need not state the cause for removal with the same particularity as would be necessary in pleading in a judicial proceeding, the purpose of such statement being to furnish information to the electors upon which a political and not a legal issue may be raised at the election.

'Under a statute providing that the statement of grounds or reasons for the recall is solely for the information of the electors, it has been held that the question of the sufficiency of the grounds is a question for the electors and not for the court. But under provisions authorizing a recall for malfeasance in office, the view has been taken in some cases that the sufficiency of the grounds stated is a question for the court. However, a constitutional provision that an officer shall be subject to recall whenever a petition demanding his recall has been filed, reciting that such officer has committed some act or acts of malfeasance or misfeasance while in office, or has violated his oath of office, does not contemplate a hearing of a judicial nature to determine the truth of...