McNally v. Tollander
| Decision Date | 03 March 1981 |
| Docket Number | No. 78-783,78-783 |
| Parties | Lillian McNALLY, Agnes A. Nelson, and Martha Johnson, on behalf of themselves and all others similarly situated, Plaintiffs-Respondents-Petitioners, v. Charles TOLLANDER and Burnett County, Defendants-Appellants. |
| Court | Wisconsin Supreme Court |
Thomas D. Bell, New Richmond, argued for plaintiffs-respondents-petitioners; Doar, Drill, Norman, Bakke, Bell & Skow, New Richmond, on brief.
Earl Munson, Jr., and David E. McFarlane, Madison, argued for defendants-appellants; Mary E. Wendorff and La Follette, Sinykin, Anderson & Munson, Madison, on brief.
This is a review of a decision of the Court of Appeals published at 97 Wis.2d 583, 294 N.W.2d 660 (Ct.App.1980) reversing the judgment of the Circuit Court for Burnett County: DOUGLAS S. MOODIE, Circuit Judge for Douglas County, Presiding.
This case presents a challenge to the validity of a referendum election held November 2, 1976, to remove the Burnett county seat from the village of Grantsburg to the town of Siren. Numerous procedural irregularities occurred in the election and approximately forty percent of the registered voters were not given the opportunity to vote. We hold that the deprivation of the right to vote of forty percent of the electorate demands that this Court set aside the election. We reverse the decision of the Court of Appeals.
Burnett County is located in northwestern Wisconsin on the Minnesota border. The county seat in the village of Grantsburg in the western part of the county. The idea of relocating the county seat to a more central location has been a subject of discussion in the county for many years. The courthouse in Grantsburg is about seventy-five years old and generally considered inadequate. The jail, also located in Grantsburg was built in 1888.
The Wisconsin Department of Corrections had informed the county that it would close and condemn the jail by August 2, 1976. The need for a new jail and courthouse was part of the argument for removing the county seat to the centrally located town of Siren.
The removal of a county seat is governed by sec. 59.11, Stats. (1975). 1 To initiate the process, sec. 59.11(4), requires that:
"... 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 who chaired a citizen's group in favor of removal, presented such a petition with some 2,000 signatures urging removal of the county seat to Siren.
On December 16, 1975, the county board established a "Petition Committee" to determine the number of resident freeholders in the county and the validity of signatures on the removal petition. Before the committee was appointed, the county finance committee and attorneys for a group opposed to the removal agreed that no names would be added or subtracted from the petition after November 20, 1975. This agreement was affirmed by the district attorney.
The committee, once appointed, prepared a list of resident freeholders. The petition was obtained by the committee on July 23, 1976 and the signatures compared to the freeholder list. 2 The number of qualified signatures on the original petition was 2,486 of a total of 5,727 resident freeholders, or 43.4%.
Four more petitions containing additional signatures were filed on July 15, August 19 and August 27, 1976.
Upon the advice of the district attorney that the agreed cut-off date was "improper," these petitions were joined with the original petition. In September of 1976, the committee determined that there were a total of 3,092 qualified petitioner signatures, of the total 5,727 resident freeholders.
On September 17, 1976, the district attorney informed the county board that there was a sufficient number of petition signatures to hold the election.
The board found the number of petition signatures sufficient under sec. 59.11(4), Stats., and voted to submit the county seat removal question to the voters in the November, 1976 general election.
On September 29, 1976, the board directed the county clerk to prepare and distribute county seat removal ballots. The county clerk refused, based on a August 18, 1976 letter he had received from the executive director of the State Elections Board which stated it was too late to hold the referendum on the November 2nd ballot because notice was not published on the last Tuesday in May and the first Tuesday in June as required by sec. 10.06(2)(f), Stats. (1973).
A county board member then contacted the State Elections Board and, by a letter dated October 13, 1976, was informed by the legal counsel to the State Elections Board that "if the total vote on the county seat question were a significant percentage of the total votes on other offices, the election on the county seat question would be valid."
On October 21, 1976, the county board passed a resolution directing the county clerk to distribute ballots for the referendum and if he refused, directing the county board chairman to distribute ballots for the election.
The county clerk again refused, and the county board chairman appointed a committee which had ballots printed and distributed to all municipal precinct clerks between October 23 and 25, 1976.
On October 26, the county clerk sent a letter drafted by the attorney for the "Concerned Taxpayers," a group opposed to the removal of the county seat, to all election clerks directing them not to distribute the ballots and advising them that they could be subject to criminal liability if they did distribute the ballots.
On October 28, 1976, the district attorney sent letters to each of the election clerks informing them that it was not illegal to distribute the ballots and urging them to do so.
On October 27, 1976, formal notice of the referendum election was published in the official county newspaper. The published notice also appeared in two other weeklies on October 27 and October 28.
On October 30, a "telelecture" seminar was conducted by the University of Wisconsin Extension for county election officials. A number of Burnett county municipal election clerks attended, and the clerk for the town of Daniels asked the legal counsel for the State Elections Board whether ballots printed and delivered nine days prior to election by someone other than the county clerk would be legal. The legal counsel responded that the statutes provide that the county clerk has the exclusive authority to distribute and print ballots and that there are "possible criminal penalties for any election official who allows one to vote on a ballot other than an official ballot printed and distributed by the only means provided for in the statutes."
On the November 2, 1976, general election, 6,558 persons voted in Burnett county. Election clerks in eight western Burnett county towns refused to distribute the referendum ballots. The referendum ballots were distributed in the sixteen eastern towns. 3
2,578 people, some forty percent of the voters in Burnett county, all residing in the western part of the county were denied referendum ballots and the opportunity to vote on the removal issue. Of those who were given ballots, 3,257 voted for removal, 588 voted against removal and eighty-six did not vote on the referendum.
The referendum ballots were sealed in ballot bags and delivered with completed tally sheets to the county clerk, who placed the ballots in his vault.
In January of 1977, the Burnett County district attorney requested an opinion on the legality of the election from the Attorney General. The Attorney General opined that the election was valid despite various procedural irregularities. 60 Op.Atty.Gen. 219 (1977).
A canvass of the referendum votes was finally conducted in August of 1977. On August 17, the chairman of the Burnett county board certified the results of the county seat removal election to acting Governor Martin Schreiber. This certification was not attested to by the new Burnett County Clerk as required by sec. 59.11(3), Stats. The new county clerk refused to do so because he was not county clerk at the time of the election. On September 9, 1977, the results were recertified and the new clerk did attest to the County Board Chairman's signature.
On September 27, 1977, acting Governor Schreiber sought further clarification as to the validity of the election from the Attorney General. The Attorney General responded on November 3, 1977, that he would be "unable to say with the same assurance as before that the election would be held valid if a court test were brought," given notice of further procedural irregularities in the election. Nonetheless, Schreiber issued a proclamation on November 25, 1977, designating and establishing the Town of Siren as the Burnett County seat and this proclamation was published in the official state newspaper. 4
This action was commenced on December 9, 1977. The named plaintiffs are the wives of three members of the Burnett County Board of Supervisors who opposed the relocation of the county seat. The action was brought as a class action on behalf of the plaintiffs and other persons who were allegedly without notice of the referendum or were denied the opportunity to vote. The plaintiffs sought judgment against the defendant county and the chairman of the county board declaring the election invalid and a permanent injunction restraining any action to effectuate the removal of the county seat. A three day trial was held in April of 1978. The trial court, finding "reasonable doubt overall that the election fairly represented the will of the voters of Burnett County," entered judgment on October 18, 1978, amended November 7, 1978, in which he declared the election void, granted the...
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