State ex rel. Zignego v. Wis. Elections Comm'n
| Citation | 957 N.W.2d 208,2021 WI 32,396 Wis.2d 391 |
| Decision Date | 09 April 2021 |
| Docket Number | Nos. 2019AP2397 & 2020AP112,s. 2019AP2397 & 2020AP112 |
| Parties | STATE of Wisconsin EX REL. Timothy ZIGNEGO, David W. Opitz and Frederick G. Luehrs, III, Plaintiffs-Respondents-Petitioners, v. WISCONSIN ELECTIONS COMMISSION, Marge Bostelmann, Julie Glancey, Ann Jacobs, Dean Knudsen and Mark Thomsen, Defendants-Appellants. |
| Court | Wisconsin Supreme Court |
For the plaintiffs-respondents-petitioners, there were briefs filed by Lucas T. Vebber, Richard M. Esenberg, Brian McGrath, Anthony LoCoco, and Wisconsin Institute for Law & Liberty, Milwaukee. There was an oral argument by Richard M. Esenberg.
For the defendants-appellants, there was a brief filed by Karla Z. Keckhaver, Steven C. Kilpatrick, and Colin T. Roth, assistant attorneys general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Joshua L. Kaul.
An amicus curiae brief was filed on behalf of Felicia Ellzey, Marangelly Quintana Feliciano, Jennifer Hagen & SEIU Wisconsin State Council by Jeffrey A. Mandell, Kurt M. Simatic, and Stafford Rosenbaum LLP, Madison; with whom on the brief was Stacie H. Rosenzweig and Halling & Cayo, S.C., Milwaukee.
An amicus curiae brief was filed on behalf of League of Women Voters of Wisconsin by Douglas M. Poland and Rathje Woodward LLC, Madison; with whom on the brief was Jon Sherman and Fair Elections Center, Washington, District of Columbia.
An amicus curiae brief was filed on behalf of The Public Interest Legal Foundation by Eric J. Hatchell and Foley & Lardner LLP, Madison; with whom on the brief was Kaylan Phillips and Public Interest Legal Foundation, Indianapolis, Indiana.
¶1 Wisconsin law requires that its statewide voter registration list be updated regularly. Before us is a dispute over one kind of voter-registration cleanup prescribed by law: a statute requiring that the registration status of eligible voters ("electors" in the words of the statute) be changed when officials receive reliable information that the elector moved out of their municipality.
Wis. Stat. § 6.50(3) (2017-18).1 This case does not concern the validity of this law or whether it should be complied with. Instead, the question we address today is whether § 6.50(3) places a positive and plain duty on the Wisconsin Elections Commission (the "Commission") to do what the law requires. We conclude it does not.
¶2 Wisconsin Stat. § 6.50(3) directs "the municipal clerk or board of election commissioners" to act when they receive "reliable information that a registered elector has changed his or her residence to a location outside of the municipality." In particular, "the municipal clerk or board of election commissioners" must send a letter regarding the move to the elector, and if the registered elector does not respond within 30 days, the "clerk or board of election commissioners shall change the elector's registration from eligible to ineligible status." § 6.50(3).
¶3 With limited exceptions, the judicial branch ordinarily does not order the executive branch to do its job. One limited vehicle by which it may do so is what is called a writ of mandamus. This is a remedy whereby a court may order a specific actor to take a certain action; but a court may do this only when the duty is positive and plain. The petitioners2 in this case (collectively, "Zignego") sought a writ of mandamus against the Commission and its commissioners3 to carry out the commands of Wis. Stat. § 6.50(3) and change the registration of electors who may have moved. The circuit court4 granted the writ, and later found the Commission and several commissioners in contempt after the Commission failed to comply.
¶4 The court of appeals reversed, concluding the writ of mandamus was granted in error, and we agree. Under Wis. Stat. § 6.50(3), the responsibility to change the registration of electors who may have moved out of their municipality is given to "the municipal clerk or board of election commissioners." Zignego argues that the Commission is a "board of election commissioners." This is plainly incorrect. Our election laws tell us how they will refer to the Commission: by use of the term "commission" (or occasionally "elections commission"). Wis. Stat. § 5.025. The "board of election commissioners" refers to a different kind of entity under our laws, one whose province is local. See Wis. Stat. §§ 7.20, 7.21, 7.22. In short, Zignego's argument that the Commission is required to carry out the mandates of § 6.50(3) is contrary to what the statute says because the statute assigns its duties to municipal election officials. The Commission has no statutory obligation, and therefore no positive and plain duty, to carry out the requirements of § 6.50(3). The circuit court therefore erred by issuing a writ of mandamus ordering it to do so. ¶5 The circuit court's contempt order against the Commission and several of its commissioners likewise must be reversed. The contempt order imposed remedial sanctions aimed at present and future compliance with the writ—a daily forfeiture beginning the date the contempt order was signed. But remedial sanctions cannot remain for failure to obey what we have determined was an unlawful writ of mandamus. That said, while we reverse the contempt order, we remind the Commission that waiting for an appellate court to grant a stay or reverse a circuit court order it disagrees with does not justify ignoring that order.
¶6 In sum, while Wis. Stat. § 6.50(3) requires that the registration status be changed for those who move out of their municipality, it gives this responsibility to municipal election officials, not to the Commission. Therefore, we affirm5 the decision of the court of appeals reversing the circuit court's writ of mandamus and contempt orders.
¶7 The issues in this case arose when the Commission received a "movers report" from the Electronic Registration Information Center, Inc. (ERIC), a multi-state consortium created to improve the accuracy of voter registration systems.
This report identifies currently registered voters who may no longer be eligible to vote at their registered address because they either died or moved. After receiving the report, the Commission conducted internal vetting and, in October 2019, sent notices to approximately 230,000 Wisconsin voters who the report suggested may no longer reside at their registered address. These notices informed the recipients that they could affirm their address by: (1) doing so at myvote.wi.gov; (2) returning the attached postcard to their municipal clerk; or (3) voting at the next election.
¶8 Less than two weeks after the notices were mailed, Zignego filed a verified complaint with the Commission pleading that the Commission deactivate non-responsive electors pursuant to the 30-day timeframe outlined in Wis. Stat. § 6.50(3). The Commission dismissed this complaint without prejudice as untimely filed, in part because the Commission considered and discussed the mailings at its meetings in March and June of 2019.
¶9 Zignego then filed suit against the Commission and five of its commissioners seeking a declaration and temporary and permanent injunctive relief, or in the alternative, a writ of mandamus. The circuit court conducted a hearing on December 13, 2019, and orally ruled that a writ of mandamus would issue ordering the Commission to comply with Wis. Stat. § 6.50(3). The written mandamus order followed shortly thereafter compelling the Commission to "deactivate the registration of those electors who have failed to apply for continuation of their registration within 30 days of the date the notice was mailed."
¶10 The issuance of the writ of mandamus triggered a flurry of filings appealing the order to the court of appeals, petitioning for bypass to this court, and seeking a stay. The Commission, however, took no action to comply with the writ. Zignego followed with a motion asking the circuit court to hold the Commission and its commissioners in contempt. On January 13, 2020, the circuit court conducted a hearing and found the Commission and several commissioners in contempt. The court imposed, as a remedial sanction, a forfeiture of $50 per day against the Commission and a forfeiture of $250 per day against each of the three commissioners who voted to take no action to comply with the writ.6
¶11 That same day, the Commission filed a notice of appeal with respect to the contempt order and moved for a stay. Also on the same day, this court denied Zignego's petition for bypass. The next morning, the court of appeals stayed both the contempt order and the writ of mandamus, explaining that the court's reasoning would be set forth in a subsequent order. A week later, the court of appeals issued its opinion and reversed the circuit court's writ of mandamus and contempt orders. State ex rel. Zignego v. WEC, 2020 WI App 17, 391 Wis. 2d 441, 941 N.W.2d 284. Zignego petitioned this court for review, which we granted.
¶12 The dispositive question in this case is whether the Commission can be ordered to carry out the requirements of Wis. Stat. § 6.50(3).7 This is a question of statutory interpretation we review de novo. Mueller v. TL90108, LLC, 2020 WI 7, ¶11, 390 Wis. 2d 34, 938 N.W.2d 566. When interpreting statutes, we focus primarily on the language of the statute, looking as well to its statutory context and structure. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶¶45-46, 271 Wis. 2d 633, 681 N.W.2d 110. We begin with the broader statutory framework, and then apply these principles to the two orders in this case.
¶13 Unlike many places around the country, Wisconsin has a highly...
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