McNally v. Tollander

• Decision Date: 13 May 1980
• Docket Number: No. 78-783,78-783
• Citation: 294 N.W.2d 660,97 Wis.2d 583
• Parties: Lillian McNALLY, Agnes A. Nelson, and Martha Johnson on behalf of themselves and all others similarly situated, Respondents, v. Charles TOLLANDER and Burnett County, Appellants.
• Court: Wisconsin Court of Appeals

Page 660

294 N.W.2d 660

97 Wis.2d 583

Lillian McNALLY, Agnes A. Nelson, and Martha Johnson on

behalf of themselves and all others similarly

situated, Respondents, v. Charles TOLLANDER and Burnett County, Appellants.

No. 78-783.

Court of Appeals of Wisconsin.

Argued Aug. 14, 1979.

Opinion Released May 13, 1980.

Opinion Filed May 13, 1980.

Review Granted. ^*

Earl Munson, Jr., Madison, argued, for appellants; LaFollette, Sinykin, Anderson & Munson, Madison, on brief and David E. McFarlane, Madison, of counsel.

Thomas D. Bell, New Richmond, argued, for respondents; Doar, Drill, Norman, Bakke, Bell & Skow, New Richmond, on brief.

Before DEAN, P. J., and DONLIN and DYKMAN, JJ.

DYKMAN, Judge.

This case is an appeal from a final judgment entered by the circuit court on October 18, 1978, and amended on November 8, 1978, which declared void a county seat removal referendum election held on November 2, 1976. In that election the majority of voters in 16 of Burnett County's 24 municipalities voted to remove the county seat from the Village of Grantsburg in the far western part of the county to the Township of Siren, which is centrally located. Citizens of the remaining eight municipalities did not vote on the question because the referendum ballots were withheld by the local election clerks at the direction of the county clerk.

The plaintiffs, ¹ citizens who did not receive the county seat removal referendum ballots, commenced this action on December 9, 1977, seeking to declare the county seat removal election invalid and to enjoin any action that would change the county seat from Grantsburg. After a 3-day trial on April 24-26, 1978, the trial court awarded such relief, declaring the election invalid, in essence, because the many procedural irregularities caused "reasonable doubt overall that the election fairly represented the will of the voters of Burnett County."

Before this court can review the correctness of the trial court's conclusion, the complicated fact situation behind this election must be set forth. The facts are essentially undisputed. The procedural irregularities in this case stem from the unique nature of a county seat removal election which can only be conducted pursuant to sec. 59.11, Stats. ² Section 59.11(4) provides in relevant part that no such election can be held unless a petition signed by at least one-half of the resident freeholders of the county as evidenced by the recorded deeds in the office of the register of deeds of the county, in favor of such removal, shall first be presented to the county board and filed in the office of the county clerk . . . .

On November 20, 1975, George Benson, a Siren attorney and head of a citizen's group urging the county seat removal, presented a petition with approximately 2,900 signatures in favor of moving the county seat to Siren to the Burnett County Board and filed it with the county clerk.

The impetus for urging the county seat removal was the need for a new county jail. The Wisconsin Department of Corrections had informed the county that it would close and condemn the present Burnett County jail, built in 1888, by August 2, 1976. This need, and the desire to consolidate all county offices in one complex at a more centralized location, prompted citizen action to urge removal of the county seat to Siren. Several county offices were already located at Siren and nearby Webster. The present courthouse, about 75 years old, was deemed inadequate.

The county seat removal question sparked much controversy, generated much publicity in the local newspapers and caused the formation of two opposing groups. The first, the Burnett County Jail and Courthouse Relocation Committee, circulated the petitions necessary to bring the question to a vote while the second, the Concerned Taxpayers of Burnett County, opposed the petitions and subsequent action taken to bring the question to a vote. The county board was divided on the issue, with a slim majority of supervisors in favor of the removal.

On December 16, 1975, after the first petition was presented, the county board established a committee to determine the number of resident freeholders in Burnett County and to determine the validity of the signatures on such petitions.

The committee first prepared a resident freeholder list with information provided by the county's municipal boards. In March, 1976, they submitted a copy of their real estate tax rolls which had residency status noted. The committee confirmed the "freeholder" status of names on the freeholder list by checking the tract index and the recorded conveyances. The committee then compared its final freeholder list, which had all questionable names resolved after checking again with each municipality's clerk, against the first petition.

The committee demanded the first petition, which had been filed with the county clerk, to determine the eligible signatures on the basis of the resident freeholder list. On July 12, 1976, the county clerk, Francis Nero, refused to turn over the petition unless committee members first signed a release form. The committee members did eventually sign a release and received the first petition on July 23, 1976. The number of qualified signatures on the first petition was 2,486 out of 5,727 resident freeholders, as had been determined by the committee.

By this time a second group of petitions was presented to the county board and filed with the county clerk on July 15, 1976. A third group of petitions was presented on August 19, 1976, and a fourth on August 27, 1976.

These petitions were turned over to the committee by direction of the county board on August 19, 1976. The county clerk had again refused to relinquish them to the committee.

The county board had initially agreed to a cut-off date of November 20, 1975, the date the first petition was presented for adding or subtracting names from petitions and for determining the number of resident freeholders. Upon the advice of the Burnett County District Attorney the additional petitions were joined with the first petitions and treated as one petition.

On September 17, 1976, the district attorney reported to the county board that the four groups of petitions contained a total of 3,092 qualified signatures out of a total of 5,727 resident freeholders. The county board petition verification committee did not officially certify these figures as its final calculation, however.

Because the committee treated the last three groups of petitions as part of the first it updated the resident freeholder list by crossing off or adding names of persons who bought or sold property or who died since the original cut-off date of November 20, 1975. Committee members did testify that their list of resident freeholders was the best they could compile to determine such status with accuracy, save to speak to each person listed on the petition.

At the September 17, 1976 board meeting an attorney for the concerned taxpayers group requested a hearing to examine and possibly challenge the petitions and freeholder list. The request was denied. No specific challenges to any name on either the freeholder list or on a petition was ever made.

At the September 17 meeting the county board found the number of signatures from the consolidated petitions to be sufficient under sec. 59.11(4), Stats., and it voted to submit the county seat removal question in the November, 1976 general election.

On September 29, 1976, the county board directed County Clerk Nero to prepare and distribute the county seat removal ballots. The county clerk refused based on an August 18, 1976 letter from the State Elections Board which stated that it was too late to give proper notice for an election on the county seat removal referendum to be held in November, 1976. Pursuant to sec. 10.06(2)(h) and (m), Stats., proper notice would have been given only if the county clerk had published the proper notice on Tuesday, May 25, Tuesday, June 1, Monday, October 25 and Monday, November 1. The clerk did not earlier reveal this letter to the county board.

A county board member contacted the State Elections Board about the election notice problem and learned by letter of October 13, 1976, that it could be cured "if the total vote on the county seat question were a significant percentage of the total votes on other offices." The county board again directed the county clerk on October 21, 1976, to prepare and distribute ballots on the county seat removal to all precinct clerks. The clerk refused and the county board chairman (defendant Tollander) appointed a committee to print and distribute ballots to all precinct clerks in his stead.

The ballots were delivered to all precinct clerks between October 23 and 25, 1976.

On October 26, Clerk Nero sent a letter drafted by the attorney for concerned taxpayers to all election clerks in the county directing them to not distribute the referendum ballots or risk incurring criminal liability.

On October 28, the district attorney sent all election clerks letters informing them that it would not be illegal to distribute the ballots, and urging them to do so.

On October 30, many of Burnett County's municipal election clerks attended a UW-Extension telelecture seminar conducted for county election officials. The clerk for the Town of Daniels asked the legal counsel for the State Elections Board whether ballots printed and delivered only nine days prior to the election by someone other than the county clerk would be legal. The legal counsel responded that a clerk who distributes such a ballot could face criminal penalties and should avoid distributing ballots which do not comply with election procedures.

Formal notice of the referendum election was published in the official county newspaper, the Burnett County Sentinel, and in the Inter-County Leader on Wednesday, October 27, and in the Spooner Advocate and Washburn County Register on Thursday, October 28. Testimony at trial...