Recall of Certain Officials of City of Delafield, In re

• Decision Date: 07 May 1974
• Docket Number: No. 403,403
• Citation: 63 Wis.2d 362,217 N.W.2d 277
• Parties: In re RECALL OF CERTAIN OFFICIALS OF the CITY OF DELAFIELD. Leon MUELLER, Appellant, v. Lois JENSEN, City Clerk, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 277

217 N.W.2d 277

63 Wis.2d 362

In re RECALL OF CERTAIN OFFICIALS OF the CITY OF DELAFIELD.

Leon MUELLER, Appellant, v. Lois JENSEN, City Clerk, et al., Respondents.

No. 403.

Supreme Court of Wisconsin.

May 7, 1974.

Thomas A. Hauke, Milwaukee, for appellant.

Clayton A. Cramer, Waukesha, for respondents.

CONNOR T. HANSEN, Justice.

This appeal was advanced on the calendar of this court pursuant to sec. 9.10(4)(a), Stats. However, on February 14, 1974, the respondent moved to dismiss the appeal as moot because a general election would be held on April 2, 1974, for the position held by Alderman Grade. The argument was that there would be insufficient time within which to hold a recall election pursuant to sec. 9.10(4)(a) prior to the general election. We denied the motion to dismiss. On appeal, respondent again urges that the appeal be dismissed because the issue presented is moot. The election has been held and as to Alderman Grade the issue presented is moot. The election has been held and as to Alderman appeal on these grounds.

As a general rule, an appeal will be dismissed if the right in the controversy has expired by lapse of time. However, the great weight of authority ¹ 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. Carlyle v. Karns (1960), 9 Wis.2d 394, 101 N.W.2d 92; Wisconsin E. R. Board v. Allis-Chalmers W. Union (1948), 252 Wis. 436, 31 N.W.2d 772, 32 N.W.2d 190; Doering v. Swoboda (1934), 214 Wis. 481, 253 N.W. 657. The issue presented is of sufficient public character, interest and significance that we will consider the issue presented.

The issue presented is whether this particular petition for recall, and the evidence adduced at the hearing, showed 'good and sufficient reasons,' as required by sec. 9.10(4)(a), Stats., to support the issuance of a certificate ordering a special election.

This case presents a different factual situation than Beckstrom v. Kornsi. ² In Beckstrom v. Kornsi, the appellant sought to disprove the allegations in circuit court. The trial judge determined that the allegations of the recall petition were sufficient; that the issues presented were political and not judicial; and, therefore, declined to entertain proof as to the truth or falsity of allegations and issued a certificate ordering a recall election.

In the instant case, Grade contended that the allegations of the petition were not 'good and sufficient reasons' for the holding of a recall election. The trial court exercised the discretion vested in it by sec. 9.10(4)(a), Stats., and proceeded to take testimony. However, our decision in this case does not stand for the proposition that the court must entertain proof and determine whether the allegations are true. This appeal is concerned with the trial court's interpretation of 'good and sufficient reasons' under sec. 9.10(2)(a) and (4)(a), Stats.

Sec. 9.10(2)(a), Stats., provides as follows:

'(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.'

The municipal clerk verifies the eligibility of the respective petition signers and circulators, certifies thereto, and transmits the petition to the circuit court. The circuit court must determine by hearing whether the petition states good and sufficient reasons for the recall and may take testimony in respect to the petition.

Sec. 9.10(4)(a), Stats., provides:

'(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.' (Emphasis supplied.)

Since legislative intent is obviously important in this case, the recall provisions have been traced through the years.

In 1911, the Wisconsin Legislature created ch. 635, sec. 1, (which subsequently became sec. 10.44, Stats.) providing for the removal of city officers. In part, that provision read as follows:

'. . . Any city officer holding an elective office, whether by election or appointment, may be removed at any time after he has actually held office for six months . . . (the) petition shall contain a general statement of the grounds upon which the removal is sought, . . .'

The city clerk was required to determine the sufficiency of the petition and, upon finding it to be sufficient, submit it to the council for an election.

In 1915, the legislature amended the law to require, among other things, a specific statement of the grounds in the petition upon which removal of a city official was sought. (Laws of 1915, ch. 583, sec. 1 amending sec. 10.44(1), (3) and (4), Stats.) Also, the county judge was made responsible for determining the sufficiency of the petition.

In 1926, article 13, sec. 12, of the Wisconsin Constitution, was created in insure the right of the electors of any state or county or of any congressional, legislative, Constitution, was created to insure The recall of city officials is not covered by this amendment.

In 1933, sec. 6.245, Stats., was created to facilitate the operation of that constitutional amendment as to public officials therein specified. (In 1949, the legislature deleted the requirement of sec. 6.245 which required a specific statement of grounds in a petition seeking recall, presumably because it was an unconstitutional limitation on the right of recall, Laws of 1949, ch. 634, sec. 1, See: 37 Op.Atty.Gen. 91.)

However, sec. 6.245, Stats., did not govern the recall of city officials. Sec. 6.245(7) provided that '(t)he purpose of this section is to facilitate the operation of section 12, article XIII, of the constitution.'

Recall elections concerning city officials were governed by sec. 10.44, Stats.1933. Section 10.44(1), Stats.1933, provided for recall petitions '. . . containing a specific statement of the grounds upon which the removal is sought. . . .'

Various amendments, not pertinent to this appeal, were enacted through the years. However, in 1961, sec. 10.44(1), (3) and (4), Stats., governing the recall of city officials, was repealed and recreated. (Laws of 1961, ch. 385.) At this time the legislature added the requirement that the recall petition for an elective city official contain a specific statement of good and sufficient reasons upon which removal was sought. It was also provided that the circuit court determine '. . . whether or not the petition states good and sufficient reason for the recall of the incumbent,' and '(i)f such reasons are found insufficient or do not demonstrate good cause, the issuance of a certificate shall be denied. . . .'

In 1967, the Wisconsin election laws were reorganized. (Laws of 1965, ch. 666, sec. 1, effective July 1, 1967.) At this time the provisions for the recall of elective officials under sec. 6.245, Stats. (covering state, county, etc., and facilitating the operation of art. XIII, sec. 12) were combined with the provisions for the recall of city officials under sec. 10.44, and both were covered by sec. 9.10. City officials were specifically covered by sec. 9.10(4) (a). The Legislative Council Note, 1965, explains sec. 9.10, in part, as follows:

'Sub. (2)(a) is a restatement of ss. 6.245(2) (1st sentence) and 10.44(1) (1st sentence, in part) and (2) (1st sentence).

'. . ..

'Sub. (4)(a) is based on ss. 10.44(1) (2nd and 3rd sentences) and 10.44(3) . . ..' (See: Comment following sec. 9.10, Stats.1967. Bill No. 755--A.)

On the subject of recall in general, an authority in municipal law has recognized as follows:

'Under statutes and charters authorizing the recall of municipal officers, courts have rather frequently concluded that the grounds stated in recall petitions were insufficient to invoke the recall election machinery. Such courts have demanded that the acts of the officers sought to be recalled must have amounted, in effect, to misfeasance, malfeasance or nonfeasance in office, and amount to something more than mere disagreement on matters of policy. Thus the Minnesota Court has indicated recall is not permitted where the petitions indicate only political criticism and not malfeasance or nonfeasance in office. There is a contra view and here recall is deemed a political question so that the courts will not pass upon the sufficiency of the charges in the petition.' 3 Antieau, Municipal Corporation Law, pp. 288.62, 288.63, sec. 22.25.

The recall of an elective city official will be governed by the applicable laws in the particular jurisdiction. (See Westpy v. Burnett (1964), 82 N.J.Super....