State ex rel. Zignego v. Wis. Elections Comm'n

• Decision Date: 28 February 2020
• Docket Number: Appeal Nos. 2019AP2397,2020AP112
• Parties: STATE of Wisconsin EX REL. Timothy ZIGNEGO, David W. Opitz and Frederick G. Luehrs, III, Plaintiffs-Respondents, v. WISCONSIN ELECTIONS COMMISSION, Marge Bostelmann, Julie Glancey, Ann Jacobs, Dean Knudsen and Mark Thomsen, Defendants-Appellants.
• Court: Wisconsin Court of Appeals

391 Wis.2d 441

941 N.W.2d 284

2020 WI App 17

STATE of Wisconsin EX REL. Timothy ZIGNEGO, David W. Opitz and Frederick G. Luehrs, III, Plaintiffs-Respondents,^†

v.WISCONSIN ELECTIONS COMMISSION, Marge Bostelmann, Julie Glancey, Ann Jacobs, Dean Knudsen and Mark Thomsen, Defendants-Appellants.

Appeal Nos. 2019AP2397

2020AP112

Court of Appeals of Wisconsin.

Submitted on Briefs February 21, 2020

Filed February 28, 2020

On behalf of the defendants-appellants, the cause was submitted on the briefs of Karla Z. Keckhaver, Steven C. Kilpatrick and Colin T. Roth, assistant attorneys general, and Joshua L. Kaul, attorney general.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Richard M. Esenberg, Brian McGrath, Anthony LoCoco and Lucas T. Vebber of Wisconsin Institute for Law & Liberty, Milwaukee.

A nonparty brief was filed on behalf of Felicia Ellzey, Marangelly Quintana Feliciano, Jennifer Hagen & SEIU Wisconsin State Council by Jeffrey A. Mandell and Kurt M. Simatic of Stafford Rosenbaum LLP, Madison, and Stacie H. Rosenzweig of Halling & Cayo, S.C., Milwaukee.

Before Fitzpatrick, P.J., Kloppenburg and Nashold, JJ.

FITZPATRICK, P.J.

¶1 The respondents in this appeal, who were the plaintiffs in the circuit court, are three Wisconsin taxpayers and registered voters.¹ The appellants are the Wisconsin Elections Commission and five of its six individual commissioners.² Plaintiffs brought suit against the Commission in the Ozaukee County Circuit Court alleging that the Commission failed to comply with a particular election law.³ The circuit court agreed with Plaintiffs and granted a writ of mandamus ordering the Commission to "comply with the provisions of [ WIS. STAT. ] § 6.50(3) and deactivate the registrations" of thousands of electors in the State of Wisconsin.⁴ The circuit court later found the Commission, and three of its individual commissioners, in contempt of court for failure to comply with the court’s writ of mandamus.

¶2 The Commission appealed both the writ of mandamus and the contempt order in separate appeals. In orders dated January 14, 2020, this court: (1) stayed the circuit court’s writ of mandamus against the Commission; and (2) stayed the circuit court’s order for contempt which was based on the Commission’s failure to comply with the writ of mandamus. ⁵

We entered those stay orders after the Wisconsin Supreme Court denied Plaintiffs’ Petition to Bypass the Court of Appeals. See WIS. STAT. RULE 809.60. This court set an expedited briefing schedule for this appeal with the final brief filed on February 19, 2020.

¶3 The explicit basis for the circuit court’s writ of mandamus, and a necessary premise for Plaintiffs’ arguments, is that the Commission has statutory duties pursuant to WIS. STAT. § 6.50(3).⁶ We reject Plaintiffs’ arguments, and reverse the writ of mandamus entered by the circuit court, because the plain language of § 6.50(3) neither refers to the Commission nor places any duties on the Commission. Among the many reasons discussed in this opinion that mandate this conclusion are the following:

• The legislature has stated in very clear wording that the Wisconsin Elections Commission, a state agency, is referred to in the election laws as the "commission." Specifically, WIS. STAT. § 5.025 states: "In [ WIS. STAT. ] chs. 5 to 10 and 12, ‘commission’ means the elections commission."

• WISCONSIN STAT. SECTION 6.50(3) makes no reference to the "commission" and only refers to "the municipal clerk or board of election commissioners" as the governmental bodies that have statutory duties pursuant to that statutory subpart.

• Pursuant to WIS. STAT. § 7.20, a "board of election commissioners" was established by the legislature in the City of Milwaukee, and that board is a municipal governmental body.⁷

• The Commission and the "board of election commissioners" are separate and distinct governmental entities established by the Wisconsin legislature with separate and distinct duties concerning the election laws.

• The legislature refers to the Wisconsin Elections Commission more than 100 times as the "commission" in the election laws. The legislature separately refers to the board of election commissioners as only the "board of election commissioners" more than 100 times in the election laws. The plain language of the election laws does not support Plaintiffs’ contention that the legislature meant to refer to the Commission as a "board of election commissioners" in only one statutory subpart, § 6.50(3), out of numerous election law statutes.

• The Commission is an independent agency of the executive branch and is not a "board" as that term is defined and employed in the Wisconsin Statutes. Rather, it is a "commission" as that term is defined and employed in the Wisconsin Statutes. Thus, the reference to a "board of election commissioners" in § 6.50(3) necessarily excludes the Commission.

• In interpreting the Wisconsin Statutes, courts may not rewrite the plain language of the statutes the legislature has enacted. Acceptance of the arguments of Plaintiffs would cause us to rewrite statutes enacted by the legislature, and that we cannot do.

¶4 We also vacate the circuit court’s contempt order because of our reversal of the writ of mandamus. We further reject Plaintiffs’ request to construe the contempt order to allow for monetary sanctions against the Commission and three of its individual commissioners for the less-than-24-hour period between the issuance of the contempt order and our stay of that order.

BACKGROUND

¶5 The following material facts are not disputed on appeal.

¶6 Plaintiffs, Timothy Zignego, David Opitz, and Frederick Luehrs, III, are Wisconsin taxpayers and registered voters who reside, respectively, in Washington, Ozaukee, and Waukesha counties. The Commission is an independent agency of this state’s executive branch responsible for the administration of the election laws in this state. WIS. STAT. §§ 5.05(1) and (2w) and 15.61.

¶7 In 2015, the legislature enacted a statutory subpart directing the Commission to enter into a membership agreement with the Electronic Registration Information Center, Inc. (the parties refer to this corporation as "ERIC," and we will do the same) and to comply with the terms of that agreement. See WIS. STAT. § 6.36(1)(ae) ; 2015 Wis. Act 261, § 55.

¶8 ERIC is a nonprofit corporation that shares data about voters to help its member states improve what the ERIC membership agreement refers to as "the accuracies and efficiencies" of "voter registration systems." ERIC strives to help its member states identify persons who may be eligible to vote but are not registered, voters who may have moved their residences since their last voter registrations, and voters who are deceased. In order to meet these objectives, ERIC compares data about registered voters with information from other sources, including the Division of Motor Vehicles and the United States Postal Service.

¶9 The ERIC membership agreement requires that each member state initiate contact with voters who may have inaccurate registrations. While the ERIC membership agreement requires each member state to contact such voters, that agreement does not require removal of any person from a voter registration list, any change in a voter’s registration status, or any process or time frame for such activities.

¶10 Every two years, the Commission receives a report from ERIC regarding "Movers." "Movers," in the context of this case, are Wisconsin residents who, as reported by ERIC, have in interactions with government agencies stated an address different from their voter registration address, thus indicating that they may have moved.

¶11 In October 2017, ERIC provided to the Commission data identifying 341,855 registered Wisconsin electors as "Movers." After receiving this report, the Commission mailed a postcard to each of those electors who may have moved as alleged by ERIC. The Commission directed each elector to reregister if the elector had moved, or to sign and return the postcard to the elector’s municipal clerk or board of election commissioners in order to keep the elector’s registration current. In the mailing, the Commission stated that the elector had thirty days in which to respond in order to keep the elector’s voter registration active.

¶12 Commission staff compiled statistics on the 2017 ERIC Movers data. As reported by the Commission, of the 341,855 individuals flagged by ERIC as Movers, 160,863 (47%) updated their voter registrations, 134,517 (39%) had their registrations deactivated by the Commission based on non-response to the October 2017 mailing and remained deactivated,⁸ and 46,475 (14%) remained with active registrations at their original addresses.

¶13 Based on its experience with the 2017 Movers mailing, the Commission learned that a portion of the ERIC-provided data did not accurately indicate whether an elector had changed, or intended to change, his or her residence address for purposes of his or her voter registration (referred to in WIS. STAT. § 6.10 as the "elector residence"). As one of many examples, the Commission learned that some electors whom ERIC denominated as Movers had registered a vehicle or obtained a driver license at an address other than the elector’s voting address and did not intend to change the elector’s voting address. Further, the erroneous deactivation of some elector registrations by the Commission because of non-response to the October 2017 mailing caused what the Commission’s administrator described as "problems" during the 2018 elections and resulted in the Commission reactivating the registrations of electors who were deactivated in error. Some Wisconsin municipalities chose not to rely on the 2017 Mover data because the municipalities did not consider the ERIC-provided Mover data sufficiently dependable so as to deactivate the registration of a voter. For example, the City of Milwaukee, the City of Green Bay, and the Village of Hobart...