Lanser v. Koconis

• Citation: 214 N.W.2d 425,62 Wis.2d 86
• Decision Date: 05 February 1974
• Docket Number: No. 216,216
• Parties: Rod LANSER, Appellant, v. James KOCONIS, Respondent.
• Court: United States State Supreme Court of Wisconsin

Page 425

214 N.W.2d 425

62 Wis.2d 86

Rod LANSER, Appellant, v. James KOCONIS, Respondent.

No. 216.

Supreme Court of Wisconsin.

Feb. 5, 1974.

McKay & Martin, Cedarburg, for appellant; F. James Sensenbrenner, Jr., Cedarburg, of counsel.

John J. Valenti and Dominic H. Frinzi, Milwaukee, for respondent.

CONNOR T. HANSEN, Justice.

It is our opinion that two issues are dispositive of this appeal:

1. Does the manner in which the Wauwatosa City Clerk delivered 51 absentee ballots to residents of the Luther Manor Nursing Home, located in Precinct 3, Ward 8, in the city of Wauwatosa, invalidate those of the 51 absentee ballots which were actually cast in this election?

2. Does the manner in which the certificate on 18 absentee ballot envelopes cast by absentee voters in various precincts of the 15th District invalidate them?

LUTHER MANOR ABSENTEE BALLOTS.

Fifty-one residents of Luther Manor made application for absentee ballots. Only 33 of these residents of Luther Manor actually cast their absentee ballots. There is no challenge to the manner in which the residents of Luther Manor applied for the absentee ballots or returned them to the city clerk.

The challenge goes to the manner in which the city clerk delivered the 51 absentee ballots to the individuals who had applied for them.

Sec. 6.87(3), Stats., provides:

'6.87 Absent voting procedure.

'(3) The municipal clerk shall mail it postage prepaid to the elector's residence unless otherwise directed, or shall deliver it to the elector personally at the clerk's office.'

The record reflects that Alvin Jung was an employee of the Wauwatosa Police Department. His primary duty was to act as special courier for the city of Wauwatosa, and in such capacity he handled the mail for the city police department, the fire department, and city hall. James Neuman, the Wauwatosa City Clerk, directed Jung to deliver a box containing the 51 absentee ballots and ballot envelopes to Luther Manor. Jung delivered the box, containing what he believed to be absentee ballots, to Luther Manor. He did not know the number of absentee ballots in the box, nor did he recall the name of the woman to whom he gave the box. He took nothing else to Luther Manor and did not return with any of the material.

It is the position of the appellant that these 33 ballots are invalid because the city clerk did not mail the absentee ballots, postage prepaid, to the electors' residences or deliver the ballot to the elector personally in the clerk's office as provided by statute.

There was a total of 75 absentee ballots cast in the 3rd Precinct, 8th Ward. The 33 absentee ballots cast by the residents of Luther Manor were combined with the other absentee ballots from this precinct. A tabulation of these 75 absentee ballots reflects there were 59 votes cast for supervisor. Koconis received 41 votes and Lanser received 18 votes. Apparently 16 of the absentee ballots contained no vote for supervisor. There is absolutely no way by which it can be determined how the 41 votes for Koconis, 18 for Lanser, and 16 blank supervisor ballots were distributed among the total 75 absentee ballots cast in this precinct. In fact, it is conceivable that all 16 absentee ballots containing no vote for supervisor could have been among the 33 absentee ballots cast by residents of Luther Manor.

There is nothing in the record which would in any way indicate any connivance, fraud or undue influence, and the parties make no such assertion. Likewise, there is no suggestion that the absentee electors from Luther Manor themselves did not comply with the absentee voting requirements.

The issue then resolves itself to a question of whether the specific delivery requirements placed upon the city clerk by sec. 6.87(3), Stats., ar mandatory to the extent that these 33 absentee ballots should be declared invalid.

In the case before us, there was substantial compliance with the absentee voting procedure in all respects and full compliance in so far as the electors are concerned. If we were to consider the provisions of sec. 6.87(3), Stats., mandatory, and thus invalidate the 33 absentee ballots, we would be required to do so as a result of the provisions of sec. 6.87(6), which provides:

'(6) The ballot shall be returned so it is received by the municipal clerk in time for delivery to the polls before the closing hour. Any ballot not mailed or delivered as provided in this section shall not be counted.'

In Gradinjan v. Boho (1966), 29 Wis.2d 674, 681, 139 N.W.2d 557, 561, this court said:

'The rule for the construction of election statutes as to whether mandatory or directory, adopted by this court in Sommerfeld v. Board of Canvassers (1955), 269 Wis. 299, 69 N.W.2d 235, and Olson v. Lindberg (1957), 2 Wis.2d 229, 235, 85 N.W.2d 775, is as follows:

"'The difference between mandatory and directory provisions of election statutes lies in the consequence of nonobservance: An act done in violation of a mandatory provision is void, whereas an act done in violation of a directory provision, while improper, may nevertheless be valid. Deviations from directory provisions of election statutes are usually termed 'irregularities,' and, as has been shown in the preceding subdivision, such irregularities do not vitiate an election. Statutes giving directions as to the mode and manner of conducting elections will be construed by the courts as directory, unless a noncompliance with their terms is expressly declared to be fatal, or will change or render doubtful the result, as where the statute merely provides that certain things shall be done in a given manner and time without declaring that conformity to such provisions is essential to the validity of the election.'''

Title II of the Wisconsin statutes deals with elections. Sec. 5.01, Stats., provides as follows:

'Scope. (1) Construction of Title II. Title II shall give effect to the will of the electors, if that can be ascertained from the proceedings, notwithstanding informality or failure to fully comply with some of its provisions.

'. . ..'

In Gradinjan v. Boho, supra, 29 Wis.2d p. 682, 139 N.W.2d p. 561, it was explained that:

'In keeping with sec. 5.011, Stats., this court has quite consistently construed the provisions of election statutes as directory rather than mandatory so as to preserve the will of the elector. Statutes which have been held to be directory and not mandatory and the cases so holding are as follows: Sec. 6.23(11), State ex rel. Tank v. Anderson (1927), 191 Wis. 538, 211 N.W. 938; sec. 6.32, State ex rel. Bancroft v. Stumpf (1867), 21 Wis. 586 ($579); sec. 6.41, Ollmann Kowalewski (1941), 238 Wis. 574, 300 N.W 183; sec. 6.60, State ex rel. Graves v. Wiegand (1933), 212 Wis. 286, 249 N.W. 537; sec. 10.36, State ex rel. Oaks v. Brown (1933), 211 Wis. 571, 249 N.W. 50; sec. 11.55, Petition of Anderson (1961), 12 Wis.2d 530, 107 N.W.2d 496; sec. 11.59, Sommerfeld v. Board of Canvassers, supra.'

In Sommerfeld v. Board of Canvassers (1955), 269 Wis. 299, 69 N.W.2d 235, the court construed as directory only the statutory requirement that the ballot of an obsentee voter ". . . shall be mailed by such voter, postage prepaid, to the officer issuing the ballot, or if more convenient it may be delivered in person." The court explained as follows:

'. . . Modern transportation has greatly affected our social and economic lives and many persons find it necessary or convenient to be away on election day. The number of absentee ballots is increasing rather than decreasing. Where possible, our statute should be interpreted to enable these people to vote.' Sommerfeld, supra, p. 302, 69 N.W.2d p. 237.

In concluding that substantial compliance with the statutory delivery requirement was sufficient, the court held that:

'An absentee ballot is inclosed in an envelope, upon which appears the affidavit of the elector. To tamper with the ballot the envelope would have to be opened and resealed. There is no claim that any of the envelopes had been tampered with in any way, nor is there any claim of fraud in this case. The complaint as to the delivery of the ballots is purely technical. We conclude, therefore, that in order to fulfil the spirit of our election laws the last sentence of sec. 11.59, Stats., is directory only, and that a delivery of ballots by agent is a substantial compliance therewith.' Sommerfeld, supra, p. 304, 69 N.W.2d p. 238.

In Olson v. Lindberg (1957), 2 Wis.2d 229, 85 N.W.2d 775, this court determined it was obliged to construe the then existing delivery statute as mandatory and declare the absentee ballots therein being considered as invalid. However, we are of the opinion that the appellant reads and attempts to apply Olson too literally. In Olson, the town clerk personally delivered the absentee ballots to the various electors' homes, and in some instances returned the executed ballots to his office, which was in his home. In Olson, supra, p. 236, 85 N.W.2d p. 780, this court stated:

'. . . However, it is obvious that by virtue of the rather strict provision in sec. 11.57, . . . prohibiting the count of an absentee ballot which was not delivered to the clerk's office or mailed there, the legislature intended to indicate public opposition to the solicitation of voters by a clerk charged with the responsibility of receiving the delivery in person by mail of absentee ballots, or to afford an opportunity for such purpose. . . .'

We are fully cognizant of possible abuses of the absentee voter's law and share the concern of the legislature in preventing any such abuse. If the record in this case indicated the slightest evidence of any fraud, connivance or attempted undue influence, we would have no hesitancy in declaring the absentee voters' ballots invalid. However, we are not inclined to disenfranchise these voters who acted in conformance with the statutory requirements. There is absolutely no evidence from which it could be inferred that the method of...