Stahovic v. Rajchel

• Decision Date: 10 December 1984
• Docket Number: No. 83-2260,83-2260
• Parties: Wallace L. STAHOVIC and Dorothy E. Otto, Relators-Appellants, v. Henry A. RAJCHEL, Respondent, Francis P. Havey and John W. Gazvoda, Intervenors-Respondents.
• Court: Wisconsin Court of Appeals

Page 243

363 N.W.2d 243

122 Wis.2d 370

Wallace L. STAHOVIC and Dorothy E. Otto, Relators-Appellants, v. Henry A. RAJCHEL, Respondent, Francis P. Havey and John W. Gazvoda, Intervenors-Respondents.

No. 83-2260.

Court of Appeals of Wisconsin.

Submitted Nov. 7, 1984.

Opinion Released Dec. 10, 1984.

Opinion Filed Dec. 10, 1984.

Michael O. Bohren, Milwaukee, for relators-appellants; Patrick D. Wait, Milwaukee, of counsel.

Roger C. Pyzyk, West Allis, for respondent.

Harold H. Fuhrman, Milwaukee, for intervenors-respondents.

Before WEDEMEYER, P.J., and MOSER and SULLIVAN, JJ.

SULLIVAN, Judge.

Wallace L. Stahovic (Stahovic) and Dorothy E. Otto (Otto) appeal from an order for judgment ¹ dismissing their petition for writ of certiorari to require Henry A. Rajchel, city clerk of the city of Greenfield (Greenfield city clerk), to file certain recall petitions with the Milwaukee county clerk of courts. We reverse the trial court's ruling that the Greenfield city clerk correctly disallowed entire pages of recall petition signatures on the ground that one or more of such signatures was invalid.

In June, 1983, a group of citizens began a recall petition drive in the city of Greenfield for the purpose of recalling three elected officials--Mayor Francis P. Havey, Alderman John W. Gazvoda and Alderman Ron Zepnick. The citizens did not obtain a sufficient number of signatures for recall of Alderman Zepnick; thus, the only petitions ultimately filed were those for recall of Mayor Havey and Alderman Gazvoda.

On August 5, 1983, the citizens filed 221 pages of petitions containing 2,968 signatures for recall of Mayor Havey and 49 pages of petitions containing 685 signatures for recall of Alderman Gazvoda. The required number of signatures for recall of these officials was 2,820 for Mayor Havey and 589 for Alderman Gazvoda. ²

Within the ten days set by sec. 9.10(4)(a), Stats., the Greenfield city clerk reviewed the petitions and determined that they contained a number of defects, e.g., undated signatures, improper dates, dates added by one other than the signer, more than one signature by the same person, signatures made by non-residents of Greenfield, signatures made on behalf of others, and printed instead of written signatures. Where the Greenfield city clerk found a defective signature On August 25, 1983, Stahovic and Otto filed a petition for writ of certiorari with the Milwaukee county circuit court. The circuit court rendered a decision from the bench on October 4, 1983, upholding the actions of the Greenfield city clerk. The court dismissed the writ of certiorari in an order for judgment dated November 7, 1983.

he disallowed the entire page of signatures (each petition page had room for ten signatures and the affidavit of the circulator). The Greenfield city clerk reasoned that even one defective signature impeached the circulator's affidavit and that, therefore, the remaining signatures on the page must also be disallowed. The clerk found that 286 signatures were invalid in the recall petition for Mayor Havey and that 186 signatures were invalid in the recall petition for Alderman Gazvoda. Accordingly, the clerk found the petitions deficient by 138 and 90 signatures, respectively, and would not file the petitions with the Milwaukee county clerk of courts.

Stahovic and Otto filed a notice of appeal on November 22, 1983, which we dismissed on the ground of mootness on March 1, 1984. On March 19, 1984, on our own motion, we reconsidered our dismissal and directed resubmission of the appeal.

Our determination that the issue on appeal was moot was based on the fact that neither of the officials in question is in office any longer. Mayor Havey did not run for re-election, and Alderman Gazvoda was defeated in his bid for re-election. A case is moot when a determination is sought upon a matter which, when rendered, cannot have any practical legal effect upon a then existing controversy. Milwaukee Police Association v. City of Milwaukee, 92 Wis.2d 175, 183, 285 N.W.2d 133, 137 (1979).

However, the general rule that a moot appeal will be dismissed is not adhered to unbendingly. If interests of a public character are asserted under conditions that are likely to be repeated, we may address the merits of an otherwise moot issue. See Wisconsin Employment Relations Board v. Allis-Chalmers Workers' Union, 252 Wis. 436, 441, 32 N.W.2d 190, 192 (1948). We conclude that, although the issue on this appeal is moot as to the parties involved, the issue is one of sufficient public character, interest and significance that it ought to be considered. See Mueller v. Jensen, 63 Wis.2d 362, 366-67, 217 N.W.2d 277, 279 (1974).

STANDARD OF REVIEW

On review by certiorari of a municipal officer's determination, the reviewing court is limited to considering (1) whether the officer kept within his jurisdiction; (2) whether he acted according to law; (3) whether his action was arbitrary, oppressive or unreasonable and represented his will and not his judgment; and (4) whether the evidence is such that he might reasonably have made the determination in question. State ex rel. Geipel v. City of Milwaukee, 68 Wis.2d 726, 731-32, 229 N.W.2d 585, 588 (1975). Our inquiry in the instant case will focus on whether the Greenfield city clerk acted according to law. Specifically, the issue is whether the Greenfield city clerk correctly interpreted Wisconsin law when he invalidated entire petition pages because of one or more defective signatures on a page.

THE RIGHT OF RECALL

The right to recall elective officers of congressional, judicial, or legislative districts, or of counties, is constitutional. See Wis. Const. art. XIII, sec. 12. The right to recall municipal officials, however, is solely a creature of statute. See sec. 9.10, Stats.; see also Beckstrom v. Kornsi, 63 Wis.2d 375, 383, 217 N.W.2d 283, 288 (1974).

While the right to recall municipal officials was created by the legislature, it has constitutional stature by virtue of the provisions contained in sec. 9.10(7), Stats: "The purpose of this section is to facilitate the operation of article XIII, section 12, of the constitution and to extend the same rights to electors of cities, villages, towns and school districts."

Section 9.10(2)(a), Stats., provides in part that the "preparation and form of the recall petition shall be governed by s. 8.15." Section 8.15, Stats., sets forth the procedures applicable to nomination papers. Among other things, the section provides that only one signature per person for the same office is valid, that each signer shall list his or her residence and address and the date of signing, and that the affidavit of the qualified elector who circulated the petition must appear on the bottom of the paper, stating that he or she personally circulated the paper, is personally acquainted with the signers, knows they are electors of the district in question, knows they signed the paper with knowledge of its content, knows they signed on the date given, and that he or she, the affiant, is a resident of the particular district. Sec. 8.15(2) and (4)(a).

No party disputes that a transgression of a signature provision invalidates the signature. The question remains whether such a transgression invalidates the entire petition page because it impeaches the affidavit of the circulator. We conclude that it does not.

We begin with the fundamental principle that, in construing election laws, the will of the electorate is to be furthered. Section 5.01(1), Stats., entitled "Scope: Construction of Chs. 5 to 12," provides as follows: "Chapters 5 to 12 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." To reject otherwise valid signatures in a petition because one signature on the page was defective would be to defeat the above-stated policy. "The object of election laws is to secure the rights of duly qualified electors and not to defeat them." State ex rel. Dithmar v. Bunnell, 131 Wis. 198, 206, 110 N.W. 177, 181 (1907) (citation omitted).

A review of Wisconsin case law demonstrates that substantial, and not literal, compliance with election laws has been deemed consistent with sec. 5.01, Stats. In Lanser v. Koconis, 62 Wis.2d 86, 214 N.W.2d 425 (1974), the supreme court ruled that technical noncompliance with a statutory provision for delivery of absentee ballots did not render the ballots invalid and that despite technical noncompliance with the signature provisions for absentee ballots, the voters were entitled to have their votes counted. "If they have not technically complied with [a] provision because it requires their signatures at the end of the certification, they have substantially complied with the law and their votes were properly counted." Id. at 97, 214 N.W.2d at 430. In Gradinjan v. Boho, 29 Wis.2d 674, 682, 139 N.W.2d 557, 561 (1966), the supreme court said, "In keeping with [a predecessor of sec. 5.01, 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."

We are persuaded that it would not be in keeping with the provisions of sec. 5.01, Stats., to reject otherwise valid signatures, representing the will of the electorate, because they appear on the same page as an invalid signature. The supreme court has characterized individual signatures as "separate" and "independent:"

[E]ach signature is to be regarded as a separate and independent unit and by itself and cannot be added to or have necessary elements supplied from or by that which may be done in the same petition by others,--intending by this, of course, to in no wise question the validity of such signer making as his own, by appropriate ditto marks or common abbreviation, that...