Fine v. Elections Bd. of State of Wis.

• Decision Date: 01 April 1980
• Docket Number: No. 79-074,79-074
• Parties: Ralph Adam FINE, Petitioner-Respondent, v. The ELECTIONS BOARD OF the STATE OF WISCONSIN, Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 823

289 N.W.2d 823

95 Wis.2d 162

Ralph Adam FINE, Petitioner-Respondent, v. The ELECTIONS BOARD OF the STATE OF WISCONSIN, Appellant-Petitioner.

No. 79-074

Supreme Court of Wisconsin.

Submitted on Briefs March 3, 1980.

Decided April 1, 1980.

Kevin J. Kennedy, legal counsel, state elections bd., for appellant-petitioner.

Ralph Adam Fine, in pro. per.

BEILFUSS, Chief Justice.

This case arises out of a dispute between petitioner-respondent Ralph Adam Fine and the State Elections Board over the manner in which petitioner Fine's name was to appear on the official ballot for the Spring 1979 judicial election. Fine was a candidate for, and was ultimately elected to, Branch 34 of the Circuit Court for Milwaukee county.

Prior to the election Fine wrote to the Elections Board asking that he be permitted to appear on the ballot as "Ralph Adam Fine." As a prominent member of the Milwaukee community, Fine had consistently used his full legal name, including first and middle names, in all of his public and private affairs. He had practiced law in Milwaukee under the name of Ralph Adam Fine for a number of years and had written several articles and two books on law-related topics, all of which were published under the name of Ralph Adam Fine. From mid-1974 through 1975, Fine served as a legal reporter for a Milwaukee area television station and from 1975 through the first part of 1978 he hosted a local "talk show" on that same station. In both of these roles he was consistently referred to as Ralph Adam Fine.

For these reasons, Fine felt he was generally known in the community as Ralph Adam Fine and would be more easily recognized if he appeared on the ballot under that name.

The Elections Board denied Fine's request. In a formal written opinion issued for statewide publication, Op.El.Bd. 78-16, the board stated that, under sec. 7.08(2)(a), Stats., ¹ a candidate for public office was not entitled to appear on the official ballot with both a full first name and a full middle name. Conceding that the words of the statute were not clear enough by themselves to compel an answer either way, the board concluded that the related statutes and statutory history imply an intent on the part of the legislature to prohibit the use of both a complete first and middle name.

Fine petitioned for judicial review of the board's opinion pursuant to ch. 227, Stats. Following a hearing, the trial court concluded that sec. 7.08(2) (a) was unconstitutional and ordered that Fine be certified as a candidate in the Spring election under the name "Ralph Adam Fine." The trial court agreed with the board that, properly construed, sec. 7.08(2)(a) would not permit a candidate to appear on the ballot under both his full first and full middle names. However, it further concluded that, read in this way, sec. 7.08(2)(a) conflicted with the equal protection provision of the Fourteenth Amendment to the United States Constitution by permitting a candidate with a former legal surname to be identified on the ballot with three full names, but limiting a person without a former legal surname to only two full names plus an initial. The trial judge stated he could fathom no legitimate state purpose that would be furthered by such a policy.

Pursuant to the trial court's order, Fine appeared on the ballot for the judicial election under the name "Ralph Adam Fine," and was elected circuit court judge for Milwaukee county.

In the meantime, the board appealed the judgment and order of the trial court to the court of appeals. After summarily dismissing an initial contention that the issue was rendered moot by the intervening election, the court of appeals, in an unpublished opinion, affirmed the trial court's judgment and order. Like the trial court, the appeals court concluded that the board had properly determined that sec. 7.08(2)(a), Stats. prohibited, as a matter of right, the use by a candidate of both a complete first and middle name. But rather than reach the constitutional issue upon which the trial court based its decision, a majority of the court held that the board had "inherent power to modify the strict terms of the statute in cases of possible voter confusion" as it had in fact done in the past. ² The majority then went on to order the board to promulgate standards to govern the use by a candidate of a non-conforming name on the ballot.

We agree with the court of appeals that, even though the election has already been held with Fine's name appearing on the ballot as requested, the case should not be dismissed as moot. In Mueller v. Jensen, 63 Wis.2d 362, 217 N.W.2d 277 (1974), also a case in which this court was presented with an election-related issue after the particular election in question had been held, we noted that "the great weight of authority supports the proposition that an appellate court may retain an appeal for determination if it involves questions of public interest even though it has become moot as to the particular parties involved." Id. at pages 366-67, 217 N.W.2d at page 279. The issue that has been raised here is one that is likely to arise again and should be resolved by the court now to avoid further uncertainty. For these reasons we choose to decide this case on its merits.

Upon our review of those merits, however, we cannot agree with the court of appeals, or the trial court, that sec. 7.08(2)(a), Stats., is sufficiently clear on its face to prevent a candidate from appearing on a ballot with both his complete first and middle names. Sec. 7.08(2)(a) requires the board to transmit to each county clerk a certified list of all the candidates on file in its office for which electors in that county may vote. The list is to contain each candidate's name in the form in which it is to appear on the ballot. The statute specifically provides in part: ". . . The list shall designate the order of arrangement and contain each candidate's name in any combination of initials for the first and middle names, plus the last name, but no nicknames, abbreviations or titles . . .."

The board has construed this language to mean that a candidate may appear on the ballot with either his first or middle name in addition to his last name. An initial may be used in place of either or both given names of a candidate, but under no circumstances, in the board's view, could both a first and middle name be used in full. Accordingly, in this case the board was willing to allow Fine to appear on the ballot as "Ralph A. Fine," "R. Adam Fine," "Ralph Fine," or "Adam Fine," or "R. A. Fine," but not as "Ralph Adam Fine."

We do not believe the language quoted above supports this construction. The language of the statute simply states that the names of the candidates shall be listed with the last name and "any combination of initials for the first and middle names." It does not say that either the first or middle name can appear in full, but rather that both shall appear "in any combination of initials." In order to arrive at the board's construction of the statute, the use of initials in place of the first and middle names must be viewed as permissive or optional. But if this is so, then there is nothing to prevent a candidate from using both given names in full and no initials. None of the language of the statute demands the kind of "either-or," "one-full-name-only," construction that the board has chosen. The statute either requires that initials be used in place of both given names, or, if the use of initials in place of a given name is deemed optional, it permits the use of both given names in full.

The last sentence of sec. 7.08(2)(a), Stats., indicates that the use of initials in place of a candidate's full first and middle names is optional under sec. 7.08(2)(a) and that, therefore, candidates running for elected office are entitled to appear on the ballot under both their given names as well as their surname. That sentence reads as follows: "Nothing in this paragraph precludes the use by a candidate of a former legal surname as a middle name as well as the candidate's complete first name." Added to sec. 7.08(2)(a) by ch. 136 of the Laws of 1969, this sentence was intended to permit candidates who were also known by a prior legal surname to include that name on the ballot as a middle name. In addition, however it demonstrates quite clearly that the legislature did not intend to require the use of an initial in place of a candidate's complete first name. Because the statute draws no distinction between first and middle names, the same conclusion would seem to follow with respect to a candidate's middle name. The use of an initial in its place is optional. Thus, the statute permits the use of both complete given names plus the candidate's surname.

In arriving at its restrictive interpretation of sec. 7.08(2)(a), Stats., the board admitted that it was required to go beyond the language contained therein. "Taken alone," it said, "the words of the statute are not clear enough to compel an answer either way." But when considered along with its legislative history and sec. 8.15(5), ³ which sets out the form for a candidate's nominating papers, the board concluded that only one of a candidate's given names could be placed on the ballot in full.

We see nothing in the legislative history of sec. 7.08(2)(a), Stats., which compels the board's construction. In 1933, the legislature amended sec. 5.08, the predecessor to sec. 7.08, to require both the given and surname of a candidate to appear on the ballot. Prior to that time the statute required the secretary of state to certify the names of the candidates as they were to appear on the ballot, but did not prescribe the form in which they were to appear.

Although it was unclear under the new statute whether all of a candidate's given names were to be included on the ballot, the attorney general stated in response to a formal inquiry by the secretary of state on this point that "the best...