Roth v. LaFarge School Dist. Bd. of Canvassers

• Citation: 247 Wis.2d 708,634 N.W.2d 882,2001 WI App 221
• Decision Date: 16 August 2001
• Docket Number: No. 01-0160.,01-0160.
• Parties: Patricia H. ROTH, Petitioner-Respondent, v. LAFARGE SCHOOL DISTRICT BOARD OF CANVASSERS, Respondent-Respondent, Gail J. MULLER, Third Party-Petitioner-Appellant.
• Court: Court of Appeals of Wisconsin

247 Wis.2d 708

2001 WI App 221

634 N.W.2d 882

Patricia H. ROTH, Petitioner-Respondent, v. LAFARGE SCHOOL DISTRICT BOARD OF CANVASSERS, Respondent-Respondent, Gail J. MULLER, Third Party-Petitioner-Appellant.

No. 01-0160.

Court of Appeals of Wisconsin.

Submitted on briefs July 9, 2001.

Decided August 16, 2001.

On behalf of the third-party-petitioner-appellant, the cause was submitted on the briefs of George C. Wilbur, LaFarge.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Christopher J. Blythe of Bauer Law Office, Madison.

On behalf of the respondent-respondent, the cause was submitted on the brief of David L. Jenkins of Jenkins and Stittleburg, Viroqua.

Before Dykman, Deininger and Lundsten, JJ.

¶ 1. DYKMAN, J.

This is an appeal from an order limiting the issues that intervenor Gail J. Muller could raise in an election dispute brought by Patricia H. Roth, and from an order and a judgment declaring that a referendum had succeeded. Three issues are in dispute: (1) whether the trial court properly concluded that Muller could not assert her own claim because her motion to intervene came after the statutory deadline for appealing the board of canvassers' decision; (2) whether a ballot initialed by only one inspector was legally excluded by the board; and (3) whether another ballot that "look[ed] erased" was also properly disqualified from the recount. ¶ 2. We conclude that the trial court erred in refusing to allow Muller to assert her own claim. The deadline for filing a notice of appeal under WIS. STAT. § 9.01(b)(6) (1999-2000)¹ applies only to parties who are "aggrieved" by the recount. Muller opposed passage of the referendum and the result of the recount indicated that the referendum had failed. Therefore, Muller was not "aggrieved" and had no standing to bring her own appeal. Because the statutory deadline did not apply to Muller and because she satisfied each of the requirements to intervene as a matter of right, Muller should have been allowed to assert her own claim.

¶ 3. We also conclude that the trial court was correct in deciding that the ballot bearing the initials of only one inspector should have been included in the recount. The trial court did not rule on whether the "erased" ballot was properly excluded because this was the claim that Muller was prevented from asserting. Because that ballot is not part of the record, we cannot determine whether it should have been counted. We therefore remand to the trial court for a determination whether the board's conclusion that the intent of the voter could not be ascertained on that ballot is supported by substantial evidence.

I. Background

¶ 4. The La Farge School District held a referendum on November 7, 2000, requesting approval from the voters for maintenance and remodeling work of the local school buildings. The election night returns reported that electors cast 392 votes in favor of the referendum and 392 votes against it. Under WIS. STAT. § 5.01(4)(d), a tie vote results in the referendum being defeated.

¶ 5. Roth, a resident and qualified voter in the La Farge School District, petitioned the La Farge School District Board of Canvassers for a recount under WIS. STAT. § 9.01, and the board held a recount on November 11. During the recount the board disqualified three "yes" votes as well as three "no" votes, resulting again in a tie.

¶ 6. On the following Friday, Roth filed a notice of appeal; she then filed a complaint in the Vernon County Circuit Court on November 24. She argued that one of the disqualified "yes" votes, which the board had disqualified because only one inspector (rather than two) had initialed it, should have been counted according to the statutes on recount procedure. The trial court ordered the board to respond by December 8, and scheduled a hearing for December 18.

¶ 7. Muller filed a motion to intervene on December 6. She claimed that, as a resident and qualified voter of the district, she had an interest in the outcome of the referendum, that her ability to protect that interest would be harmed if she could not intervene, and that the existing parties did not adequately represent her interest. In her complaint, Muller sought to argue both that the "yes" vote at issue was properly disqualified and also that one of the three disqualified "no" votes should have been counted.

¶ 8. The trial court granted Muller's motion to intervene, but only for the purpose of opposing Roth's complaint; Muller was not allowed to challenge the board's decision to exclude the "no" vote. After a hearing, the trial court concluded that the board had misinterpreted WIS. STAT. § 9.01 when it disqualified a "yes" vote for having only one inspector's initials on it. Accordingly, the trial court ordered the board to include the ballot in the total so that the revised returns would reflect that the referendum passed by one vote. Muller appeals.

II. Analysis

A. Motion to Intervene

¶ 9. The parties do not dispute that the trial court was correct in allowing Muller to intervene for the purpose of challenging the inclusion of the "yes" vote. They do dispute, however, whether Muller should have been allowed to intervene in order to argue that the "no" vote had been improperly excluded. While both Roth and the board agree that the trial court correctly ruled that Muller could not raise "new issues," Muller asserts that the court erred because she was entitled to intervene on both issues as a matter of right.

[1, 2]

¶ 10. Whether Muller is permitted to intervene as a matter of right is an issue of law that we review de novo. See Wolff v. Town of Jamestown, 229 Wis. 2d 738, 743, 601 N.W.2d 301 (Ct. App. 1999)

. The supreme court recently set forth the requirements for intervention as a matter of right under WIS. STAT. § 803.09(1): (1) the motion to intervene must be timely; (2) the movant must claim an interest in the subject of the action; (3) the outcome may, as a practical matter, impair or impede the movant's ability to protect that interest; and (4) the existing parties do not adequately represent the movant's interest. City of Madison v. ERC, 2000 WI 39, ¶ 11, 234 Wis. 2d 550, 610 N.W.2d 94.

¶ 11. Roth and the board do not seriously dispute that Muller has satisfied requirements (2), (3), and (4). As an elector in the referendum, Muller has an interest in the outcome of the suit that is recognized by WIS. STAT. § 9.01(6), and, obviously, Muller's ability to protect that interest will be impeded if she cannot intervene because she will otherwise have no opportunity to assert her claims. See WIS. STAT. § 9.01(11); State ex rel. Shroble v. Pruesner, 185 Wis. 2d 102, 110-12, 517 N.W.2d 169 (1994) (holding that § 9.01 is the exclusive remedy for challenging mistakes made during the canvassing process). Also, neither Roth nor the board can adequately represent Muller's interest. Of the three parties, only Muller wishes to assert that one of the "no" votes was improperly disqualified. Even with regard to the excluded "yes" vote at issue, both the board and Roth now agree it should have been counted, leaving only Muller to dispute this.

¶ 12. It is the requirement of timeliness that Roth and the board claim Muller has not satisfied. They point to WIS. STAT. § 9.01(6), which requires appeals of the recount be made to the circuit court "within 5 business days after completion of the recount determination." Because the recount was completed on November 11, 2000, and Muller did not file her motion to intervene until December 6, 2000, Roth and the board assert that Muller's motion was untimely.

[3]

¶ 13. We disagree that Muller's failure to file her own appeal with the circuit court within five business days of the recount precluded her from intervening later. First, the supreme court has rejected the view that intervenors are necessarily subject to the same deadlines as the original parties. City of Madison,2000 WI 39 at ¶ 10 (holding that failure to intervene within the statutory time period to appeal does not make motion untimely). More important, Muller cannot be barred by the statutory deadline because the statute did not apply to her. WISCONSIN STAT. § 9.01(6) (emphasis added) requires only that "any elector ... aggrieved by the recount" appeal to the circuit court within five business days. We generally understand a person to be "aggrieved" when he or she is directly injured. Auer Park Corp., Inc., v. Derynda, 230 Wis. 2d 317, 320, 601 N.W.2d 841 (Ct. App. 1999); Weina v. Atlantic Mut. Ins. Co., 177 Wis. 2d 341, 345, 501 N.W.2d 465 (Ct. App. 1993).

¶ 14. In this case, Muller was not directly injured by the recount because the result was in her favor. The recount ended in another tie, which under WIS. STAT. § 5.01(4)(d) means that the referendum failed. An individual cannot claim to be aggrieved when his or her position is successful. Cf. State Public Intervenor v. DNR, 184 Wis. 2d 407, 420, 515 N.W.2d 897 (1994)

(holding that public intervenor was not aggrieved by judgment when he was the prevailing party). Because Muller was not aggrieved by the recount, she would have had no standing under WIS. STAT. § 9.01 to challenge the result. Had Muller attempted to bring her own appeal, the statute would have required the trial court to dismiss her complaint.

¶ 15. Having determined that Muller was not aggrieved, we cannot conclude that her motion to intervene is untimely as a result of her failure to appeal the board of canvasser's decision within five days. If we were to do so, individuals such as Muller would be denied any opportunity to obtain relief. They would both lack standing to initially challenge the recount and be denied an opportunity to later intervene.² [4]

¶ 16. We are therefore left with a situation in which the legislature has provided a statutory deadline for those aggrieved by the recount to appeal but not for those who were satisfied with the result but want to later intervene. The...