State ex rel. Shroble v. Prusener

• Decision Date: 22 June 1994
• Docket Number: No. 92-3288,92-3288
• Parties: STATE of Wisconsin ex rel., Gerald J. SHROBLE, Plaintiff-Appellant, v. Norman PRUSENER, Defendant-Respondent-Petitioner, City of Whitewater and County of Walworth, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 169

517 N.W.2d 169

185 Wis.2d 102

STATE of Wisconsin ex rel., Gerald J. SHROBLE, Plaintiff-Appellant, v. Norman PRUSENER, Defendant-Respondent-Petitioner, City of Whitewater and County of Walworth, Defendants-Respondents.

No. 92-3288.

Supreme Court of Wisconsin.

Argued April 27, 1994.

Decided June 22, 1994.

For plaintiff-appellant there was a brief by Russell W. Devitt, David P. Honan and Soffa & Devitt, Whitewater and oral argument by Russell W. Devitt.

Amicus curiae brief was filed by Alan Lee, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General for State of Wisconsin Elections Board.

BABLITCH, Justice.

Norman Prusener (Prusener) seeks review of a court of appeals' decision holding that an action in quo warranto is available to challenge the results of an election based on alleged mistakes in the canvassing process. Prusener argues that the recount statute ¹ provides the exclusive remedy by which to challenge a mistake in the canvassing process. Because Prusener's opponent in the election, Gerald J. Shroble (Shroble), did not request a recount within the statutory time limit, Prusener argues that he is precluded from challenging Prusener's title to office. We agree with Prusener. We hold that the recount statute plainly and unambiguously provides the exclusive remedy for challenging the results of an election based on mistakes in the canvassing process. Because Shroble did not request a recount within the time limit under the statute, his remedy has expired. ² We also hold that the recount statute, as the exclusive remedy, does not violate Shroble's constitutional due process and equal protection rights and does not unconstitutionally deny the electorate the right to have the winning candidate hold office. Accordingly, we reverse.

This action stems from a motion to dismiss Shroble's complaint. We therefore assume the facts alleged in the complaint to be true. Koback v. Crook, 123 Wis.2d 259, 263, 366 N.W.2d 857 (1985). Prusener and Shroble ran against each other for the office of Walworth County Supervisor. After the election on April 7, 1992, the election officials of the city of Whitewater and the County of Walworth determined that Prusener defeated Shroble by a margin of 24 votes.

On April 23, 1992, some 16 days later, representatives of the city of Whitewater advised Shroble that mistakes were made in tabulating the election results and that in fact, Shroble had won the election by a margin of 19 votes. Although the statutory three-day time limit for requesting an official recount under sec. 9.01, Stats., had expired, Shroble filed a petition for recount on April 24, 1992.

On April 27, 1992, Shroble brought an action in the circuit court alleging that sec. 9.01, Stats., unconstitutionally violated his due process and equal protection rights in that it required him to request a recount before he was made aware of the canvassing error. Shroble asked the circuit court to declare sec. 9.01 unconstitutional and order a recount. If the recount proved that Shroble had received the greater number of votes, he asked that the circuit court exclude Prusener from office in favor of Shroble.

On July 17, 1992, Shroble filed an amended complaint in which he added an action in quo warranto under sec. 784.04, Stats., ³ to test Prusener's ability to hold office. He asked that the court find Prusener had "usurped" the office of Walworth County Supervisor by taking office without receiving a majority of votes. Further, Shroble asked that the court declare him the lawful Supervisor and award him damages and costs for the time that Prusener illegally held office.

On September 24, 1992, the circuit court granted the defendants' motion to dismiss Shroble's action on the basis that sec. 9.01(11), Stats., provides the exclusive remedy for challenging mistakes in the canvassing process. Because Shroble did not ask for a recount within the statutory three-day time limit, the circuit court determined that his remedy had expired.

Shroble appealed, and the court of appeals reversed holding that an action in quo warranto remained a viable remedy to challenge the results of an election despite the exclusivity language in sec. 9.01(11), Stats. State ex rel. Shroble v. Prusener, 177 Wis.2d 656, 503 N.W.2d 301 (Ct.App.1993).

We address two issues in this case. First, is sec. 9.01, Stats., the exclusive remedy to challenge the results of an election based upon mistakes in the canvassing process? Second, if sec. 9.01 is the exclusive remedy, does it unconstitutionally violate Shroble's due process and equal protection rights and unconstitutionally deny the electorate its right to have the winning candidate to hold office?

We begin by determining whether sec. 9.01, Stats., provides the exclusive remedy to challenge the result of the Walworth County election. This requires us to interpret sec. 9.01(11). The interpretation of a statute is a question of law which we review de novo. Revenue Dept. v. Milwaukee Brewers, 111 Wis.2d 571, 577, 331 N.W.2d 383 (1983). In construing the statute our objective is to discern the legislative intent. State v. Eichman, 155 Wis.2d 552, 560, 456 N.W.2d 143 (1990). The primary source to be used in determining that intent is the language of the statute. Id. Section 9.01(11) provides:

(11) EXCLUSIVE REMEDY. This section constitutes the exclusive judicial remedy for testing the right to hold an elective office as the result of an alleged irregularity, defect or mistake committed during the voting or canvassing process.

Section 9.01(11) is unambiguous in its directive to make sec. 9.01 the exclusive remedy for testing the right to hold office based on mistakes made during the canvassing process. It follows therefore, that if a candidate does not petition for a recount to challenge a mistake in the canvassing process within the three-day time limit provided for in sec. 9.01, that candidate is precluded from challenging the canvassing mistake. The statute on its face is capable of no other interpretation.

Shroble argues and the court of appeals agreed that despite the unambiguous exclusivity language in sec. 9.01(11), Stats., an action in quo warranto is available to challenge the results of the Walworth County election. Shroble argues that whereas sec. 9.01 provided the remedy to challenge the conduct during the canvassing process, quo warranto provides the remedy to challenge the mistaken election result (even if the challenge is based on a canvassing mistake). The cases relied on by Shroble to illustrate the difference between an action in quo warranto and an action under the recount statute, however, are unpersuasive. They were decided prior to 1983 under the earlier recount statute which specifically allowed a candidate to pursue other remedies, and before the statute was amended to include the exclusivity provision in sec. 9.01(11). The statutory changes that occurred in 1983 support our interpretation of the statute.

Prior to 1983, sec. 9.01(8) stated:

(8) Nothing in this section shall be construed to abrogate any right or remedy that any candidate may now have affecting the trying of title to office.

The legislature in 1983 Wis. Act 183 repealed section (8) and created sec. 9.01(11), the exclusivity provision. The analysis by the Legislative Reference Bureau (LRB) in the engrossed Act, 1983 Assembly Bill 694, states:

The bill makes the recount appeal procedure the exclusive judicial remedy for testing the right to hold an elective office as the result of an alleged irregularity, defect or mistake committed during the voting or canvassing process.

Current law does not preclude resort to other remedies; for example, the common law writ of quo warranto. (Emphasis added).

An official statement from a legislative source is valid evidence of legislative intent. Ball v. District No. 4, Area Board, 117 Wis.2d 529, 543, 345 N.W.2d 389 (1984). The LRB's statement indicates that the intent of the amendment was to preclude actions in quo warranto and to make sec. 9.01 the exclusive remedy for challenging mistakes in the canvassing process. Thus, the cases relied on by Shroble are no longer authority for his argument.

In the alternative, Shroble contends that we should construe the time limit in sec. 9.01, Stats., as directory rather than mandatory, and find that his filing of the petition within three days after learning of the mistake was sufficient under the statute. When the legislature explicitly provides that the statute must be complied with in order for the statutory provision to take effect, the statute should be construed as mandatory. Petition of Anderson, 12 Wis.2d 530, 534, 107 N.W.2d 496 (1961); Lanser v. Koconis, 62 Wis.2d 86, 91, 214 N.W.2d 425 (1974). Section 9.01(1), states that a "candidate voted for at any election ... may request a recount." If a candidate desires a recount sec. 9.01(1) states that the candidate "shall file a verified petition ... not later than 5 p.m. on the 3rd business day ..." following the final election determination. Section 9.01(1) explicitly requires that in order for the board of canvassers to perform a recount, a candidate must file a petition within three days after the final election determination. This time limit is mandatory. It is not enough, given the explicitness of the statute, that Shroble filed a petition for recount within three days after learning of the canvassing mistake. He filed more than three days after the board met to determine the final election results, contrary to the statute.

Based upon the above, we hold that sec. 9.01, Stats., plainly and unambiguously provides the exclusive remedy for Shroble to challenge the alleged canvassing error. Because he did not request a recount under sec. 9.01 within the three-day time limit, he is precluded from maintaining this action. Accordingly, we reverse the decision of the court of appeals.

This conclusion does not end our inquiry....