Wisconsin appeals court vacates circuit court order related to
recall petitions
By Joe Forward, Legal
Writer, State Bar of Wisconsin
Feb. 6, 2012 – Committees aimed at recalling Gov. Scott Walker, his Lieutenant Governor, and
members of the Wisconsin Legislature will have an opportunity to argue
that the Government Accountability Board’s procedures for
reviewing petitions should not change.
That’s because the District IV Wisconsin Court of Appeals
recently ruled that the recall committees should have been allowed to
intervene in a lawsuit, commenced by Gov. Walker’s
authorized campaign committee, asking that GAB apply increased scrutiny
when reviewing recall petition entries. To trigger a recall election of
Gov. Walker, 540,208 valid entries are
necessary.
The ruling in Friends
of Scott Walker v. Wisconsin Government Accountability Board,
2012AP32-AC (Feb. 3, 2012) will vacate a
decision by the Waukesha County Circuit Court, which previously
concluded that GAB’s review procedures do not fully comply with
Wis. Stat. section 9.10
(right to recall; petition signatures).
GAB is currently in the process of reviewing recall petitions asking
for a recall election of Gov. Walker, Lietenant Gov. Rebecca Kleefisch, and Republican senators Scott
Fitzgerald, Van Wanggaard, Terry Moulton, and Pam
Galloway. GAB must verify and certify the petitions by March 19 unless a
court grants another extension.
Friends of Scott Walker, Gov. Walker’s
authorized campaign committee, filed a complaint against GAB on Dec. 15,
2011, alleging that GAB’s recall petition review procedures allow
obviously fictitious names, entries with illegible addresses, and
duplicate signatures to be counted for purposes of triggering an
election.
The complaint filed by Friends of Scott Walker seeks, in part, an order
directing GAB to identify and challenge multiple signatures by a single
elector, patently fictitious names, and illegible addresses,
“which are identifiable by a facial review.”
The complaint essentially seeks to lift the burden that Friends of
Scott Walker would have in challenging the sufficiency of recall
petition entries, and increase the burden on the recall committees to
prove insufficient entries are actually valid if the petition is
denied.
Several recall committees, such as the Committee to Recall Walker,
filed a motion to intervene. The Waukesha County Circuit Court, Judge J.
Mac Davis, denied the motion Jan. 5 and ordered GAB to change its review
procedures in a Jan. 20 decision. The recall committees appealed.
Motion to intervene should have been granted
In a per curiam opinion, the appeals court concluded
that the recall committees’ motion to intervene should have been
granted because they timely filed the motion and showed an interest
related to the subject of the action that could be impaired by the
court’s decision. The court also concluded that GAB can’t
adequately represent the recall committees’ interest.
Friends of Scott Walker argued primarily that recall committees
don’t participate in the initial review of recall petitions by
GAB, and thus do not have an interest sufficient to intervene.
But the appeals court disagreed, noting that a court decision on
GAB’s initial review process will impact the process that occurs
after an initial review is complete. In particular, it will impact the
recall committees’ burden to correct insufficiencies if GAB
rejects the petition.
“It cannot be seriously disputed that the recall committees have
an interest in the procedures that will be used to review their
petitions and strike names,” the court wrote.
“Beyond the recall committees’ interest in not losing valid
signatures and not bearing an increased burden to prove that valid
signatures are indeed valid, the committees also have an interest in
preventing delays to the recall process that may be caused by changes to
the [GAB’s] review process, if those changes are not required by
law,” the appeals court explained.
Circuit court order vacated
Reviewing other intervention cases, the appeals court ruled that
“appropriate relief includes vacating the later order that is
adverse to the intervening party.” Thus, the appeals court
reversed the Waukesha County Circuit Court order in favor of Friends of
Scott Walker.
According to the appeals court decision, the circuit court’s Jan.
20 order had concluded, in part, that GAB’s current practices did
not fully comply with Wis. Stat. section 9.10.
That forced GAB to make changes to its recall petition review process.
But the Jan. 20 order will now be vacated, and the recall
committees will be allowed to intervene in the case.
