The Court of Appeals Speaks in the Recall Case

Today, the District IV Court of Appeals issued an opinion that reverses a ruling by the Waukesha County Circuit Court denying a motion to intervene in the case of Friends of Scott Walker v. Brennan.  The practical impact of today’s Court of Appeals decision is that the committees seeking the recall of Governor Walker and other Republican officeholders will be permitted to intervene in the case of Friends of Scott Walker v. Brennan.  As a result, all of the legal rulings made by Judge Davis subsequent to his denial of the motion to intervene must be vacated, so that these legal issues can be reargued with the participation of the recall committees.

This means that Judge Davis’ earlier ruling, interpreting the statutory procedures for recalls under Section 9.10, is now vacated.  On January 5, 2012, Judge Davis ordered the Government Accountability Board (GAB) to take affirmative steps to identify and strike any recall signatures that are fictitious, duplicative or unrecognizable.  Because of this earlier ruling, the GAB went ahead and adopted new procedures, purchased new signature recognition software, and sought additional time in which to review the recall petitions.

The GAB had argued unsuccessfully before Judge Davis that the statute contains no explicit command for the agency to undertake such duties.  Instead, the GAB argued, the the statutory language of Section 9.10 clearly places the burden on the officeholder to bring challenges to suspicious recall signatures.  The agency contended that the duty of the GAB was limited to weeding out signatures that are insufficient to meet the technical requirements of Section 9.10(2)(e).  In an earlier post, I agreed with the GAB.  I argued that Judge Davis’ interpretation of Section 9.10, requiring the GAB to take “reasonable steps” in order to identify invalid signatures, is simply not supported by the statutory language.

In its opinion today, the Court of Appeals signaled that it shares my doubts concerning Judge Davis’ interpretation of the statute. To be clear, the decision of the appellate court today does not directly reverse Judge Davis’s ruling that the statute imposes an affirmative obligation on the GAB to identify and strike invalid signatures.  The holding of the Court of Appeals opinion is limited to reversing Judge Davis’ denial of the motion to intervene brought by the various recall committees, and vacating Judge Davis’ earlier ruling so that it can be reargued.

However, in the course of describing the interests of the proposed intervenors that are at stake in this litigation, the Court of Appeals uses language that seems skeptical of the idea that Section 9.10 can be read to place an affirmative burden on the GAB to seek out invalid signatures.  Here is how the Court of Appeals summarized the interests of the recall committees seeking to intervene in the case:

To summarize, the recall committees have an interest in the complaint’s proposed relief because such relief may include new procedures not required by law that may result in (1) striking valid signatures and placing an increased burden on the committees at a later stage of the review process and (2) causing delay to the recall process.

(Opinion at p. 16).

According to the Court of Appeals, the recall committees had an interest in the lawsuit filed by the Friends of Scott Walker, and ultimately a right to intervene in that case, because the lawsuit sought a form of relief that would increase the burden on the recall committees.  The Court of Appeals gave three examples of how the placing of an affirmative duty on the GAB to “look for and eliminate“ certain types of signatures could act to increase the burden that the statute would otherwise place on the recall committees.

First, if the GAB applies new, stricter criteria for the removal of addresses that the GAB concludes are illegible, then the recall committees must expend additional resources to verify that the addresses are correct or else risk losing those signatures.  Second, the GAB might adopt procedures for eliminating duplicate signatures that would eliminate a signature even in circumstances where the challenger would have been unable to provide any evidence that a duplicative signature existed (i.e., where both John Smith, Sr. and John Smith, Jr. in the same household sign as “John Smith”).  Third, the GAB procedures for removing fictitious names might remove names that actual voters share with celebrities (i.e., an actual “George Clooney”) on the assumption that the name is suspicious, thus placing the burden on the recall committees to expend resources in order to verify the signature.

As currently written, the statute places the burden on the officeholder to challenge any signatures that fall into the above situations.  Therefore, unless a challenge is filed the statute itself does not require the petition circulator to supply one iota of evidence proving the validity of such signatures.  However, the new procedures adopted by the GAB in the wake of Judge Davis’ ruling may force the recall committees to come forward with such evidence.

What these examples given by the Court of Appeals illustrate is that the new recall procedures sought and received by the Friends of Scott Walker impose an extra burden on the recall committees in a manner inconsistent with the overall statutory scheme of Section 9.10.  The Court of Appeals points out that, if the GAB attempts to play an affirmative role in identifying and eliminating suspicious signatures, it runs a very real risk of improperly shifting the burden from the shoulders of the officeholder challenging the signature onto the shoulders of the recall committees:

The relief sought potentially places an increased burden on the recall committees to prove that certain valid signatures are indeed valid.  If the board is required to “look for and eliminate” certain classes of signatures, that may cause the board to strike signatures that appear to be improper, but which in fact are not improper.  Because these signatures are indeed valid, the officeholder would not have been able to produce the affidavits or other evidence required to support a successful challenge to them under WIS. STAT. sec. 9.10(2)(h) and (3)(b).  Nonetheless, the court order [sought by Friends of Scott Walker] may require the board to strike such signatures in its initial review.

(Opinion at p. 10).

Such a result runs directly counter to the statute itself, which clearly states in Section 9.10(2)(g) that “[t]he burden of proof for any challenge rests with the individual bringing the challenge.”

In addition to the foregoing discussion, the Court of Appeals opinion also underscores the fact that “the recall committees have an interest in holding timely recall elections, as embodied in the recall statutes and our Constitution.” (Opinion at p. 16).  Unfortunately, it may already be too late to prevent the recall elections from being delayed substantially.

Therefore, while Judge Davis’ interpretation of the statute was not directly reversed, the overall tenor of the Court of Appeals opinion is not friendly to the strained interpretation of Section 9.10 that was advanced by the Friends of Scott Walker.  The language of the Court of Appeals decision might well give Judge Davis pause when he is asked to reconsider the statutory interpretation issue.

Will that happen?  It is unclear where the case goes from here.  The Friends of Scott Walker could appeal the decision of the Court of Appeals allowing the recall committees to intervene to the Wisconsin Supreme Court.  Alternatively, the Friends of Scott Walker could simply allow Judge Davis to vacate his earlier ruling as directed and then renew its argument concerning the meaning of Section 9.10 in the circuit court, this time with the recall committees as parties.  In either event, the Court of Appeals has invited a briefing on the question of whether to order relief or to order a stay of its decision, pending further proceedings.

As the debate over the correct recall procedures continues, it is possible that the Friends of the Scott Walker might downplay its statutory arguments and place more weight on its unprecedented argument that the Fourteenth Amendment of the United States Constitution requires the GAB to account for the so-called “rights” of non-voters.  Judge Davis was wise to resist such a sweeping expansion of Equal Protection doctrine when he issued his earlier ruling, and he would be wise to reject such a novel theory if it were advanced again.  The Equal Protection Clause is not an open invitation to the courts to remake election procedures to the liking of the judiciary, and the Supreme Court’s decision in Bush v. Gore does not suggest otherwise.

This procedural morass, occurring in the midst of a recall campaign where over one million Wisconsin voters have exercised their constitutional right to demand a recall, was entirely avoidable.  The Government Accountability Board was created as a non-partisan agency precisely because the legislature decided that election procedures should not become playthings for partisan appointees, nor changed willy-nilly in the middle of campaigns.  If anything, the ongoing saga of Friends of Scott Walker v. Brennan should remind us of the wisdom of that decision.

This Post Has 10 Comments

  1. Tom Kamenick

    “The Government Accountability Board was created as a non-partisan agency precisely because the legislature decided that election procedures should not become playthings for partisan appointees, nor changed willy-nilly in the middle of campaigns.”

    Insofar as the GAB is run by the appointees of partisans, and has on its own changed rules, or at least interpretations, in the middle of elections, it’s not clear that much of importance has changed.

    On the merits of your argument, I don’t agree that the interests recognized by the COA – interests that need only be trifling to qualify as sufficient for these standing questions – signal disapproval of the substance of Judge Davis’s decision. You’re coming awfully close to arguing that merely having an interest in a dispute is enough to win that dispute.

  2. Edward A. Fallone


    Please do not confuse the legal standard for standing with the legal standard for intervention as of right.

    As for the non-partisan nature of the GAB, I have previously quoted Professor Edward Foley: “In contrast to other states, Wisconsin has a state institutional structure that seems well- designed to promote evenhanded decision making. Rather than vesting power in a partisan elected official or a board controlled by one of the parties, Wisconsin has just created a Government Accountability Board (“GAB”) consisting of retired judges who must be confirmed by a supermajority of the state senate . . . This structure provides a basis for optimism that the new GAB will operate by consensus, rather than serving the narrow interest of one party or the other.”

    See here at page 193:

    Whether it is the Legislative Reference Bureau, or the Government Accountability Board, I am not the only lawyer troubled when legal arguments designed to obtain a short-term win invariably inflict long-term damage to the state’s non-partisan institutions.

  3. Nick Zales

    Prof. Fallone sets forth an interesting and detailed legal analysis of why the Court of Appeals decision is correct. The proponents of this lawsuit do not want the recall election to occur at all. They are using the judicial system to try and achieve a political goal.

    Using the courts to achieve political goals has been occurring in this country with increasing frequency. It is a disturbing trend. A trend the public sees right through but is powerless to do anything about. If things in Wisconsin are as great as the governor claims, he should have nothing to worry about. That this lawsuit was even commenced shows he is very worried.

  4. Amy Hetzner

    Professor Fallone,

    Any idea how this case got to District 4 instead of District 2, which traditionally hears appeals from Waukesha County courts?

  5. Ed Fallone


    From the Milwaukee Journal Sentinel:

    “In the past, most lawsuits against the state had to be brought in Dane County, the seat of government. But Republicans who control the Legislature changed the law last year to allow residents to sue the state in any county, and the Walker campaign used that new law to bring the case in one of the state’s most conservative counties.

    That same law allows those filing appeals to send their cases to any other court district, and the recall groups chose the appeals court based in liberal Dane County.”

    Story here:

    That is in accord with my recollection of how the new law works, although I have not gone back to verify the details.

  6. Tom Kamenick

    Ed, the differences in language used for an “interest” sufficient for intervention as of right and an “interest” sufficient to confer standing are immaterial to the point I’m making here, which is that your argument makes a huge leap from a showing of potential harm to winning on the merits.

    “What these examples [of interests held by the committees weighing in favor of intervention] illustrate is that the new recall procedures sought and received by the Friends of Scott Walker impose an extra burden on the recall committees in a manner inconsistent with the overall statutory scheme of Section 9.10.”

    That sentence summarizes the tenor of your whole argument, which is that the COA’s discussion of a sufficient interest in the proceedings signals an opinion on the merits.

  7. Nick Zales

    That is correct. This new law on appeals has appellate lawyers puzzled. When you sue the state you can chose the district (I-IV) where you file your appeal. Whether the 4th District COAppeals, based in Madison, is “liberal” is up for debate. I have my doubts. I have no doubt the Dist. II court based in Waukesha would have reached the same decision.

    Moreover, while there are four appellate court districts, there is only one Court of Appeals. Quite often, based on caseloads, cases are transferred from one district to another by the court itself. That did not occur here but it could have.

  8. Tom Kamenick

    When you sue the state, you can pick the county you choose. Whoever loses can take their appeal to the court of appeals district of their choice, EXCEPT that they cannot choose the district which contains the county which was chosen by the plaintiff originally. So the recall committees in this case could have chosen I, III, or IV, but not II.

    Odd, definitely. I guess that it dissipates some of the advantage of choosing a forum by allowing the loser to choose the next forum on appeal?

  9. Rick Esenberg

    I would not think that the Court of Appeals’ recitation of the way in which the recall committees claim to face negative consequences should the Friends of Scott Walker prevail would normally be regarded by lawyers as implying anything about the court’s view of the merits. This panel may or may not agree with Judge Davis. We don’t know.

    Second, this is an unusual outcome although one that I welcome. Traditionally, courts are reluctant to grant intervention to parties seeking the same outcome as the attorney general. In Helgeland, the most recent teaching on the issue by the Wisconsin Supreme Court, the “liberal” majority (Abrahamson, CJ and Bradley, Crooks and Butler, JJ) denied intervention to municipalities who claimed to face adverse consequences should then state law limiting certain employee benefits to married couples be overturned.

    Here, the Court of Appeals abandons the spirit if not the letter of Helgeland, but I’m not sure that’s a bad thing. In cases of substantial public importance, it may make sense for courts to err on the side of public participation in recognition of the fact that the interests of those who are officially charged with defending a particular position may differ from those directly defended by it.

    To be sure, there has to be some limit to participation but I think there is more danger in presuming that the AG can speak for all who share his ultimate objective than courts of appeals have often acknowledged. (Of course, trial judges have a great deal of discretion to permit intervention.)

  10. Edward A. Fallone


    The Court of Appeals identified two interests on the part of the recall committees under Section 9.10: 1) not bearing the costs and associated burdens in verifying information in situations where the statute places those costs and burdens on the challenging party and 2) not having the recall election delayed beyond the time designated by the statute.

    The point of my blog post is simple. There is no explicit command in Section 9.10 for the GAB to take “reasonable” steps in order to eliminate duplicative, fictitious or unrecognizable signatures. Judge Davis implied such an affirmative duty from his reading of the statute in its entirety.

    However, the Court of Appeals stated that placing this affirmative duty on the shoulders of the GAB creates the risk that the interests of the recall committees will be frustrated. Indeed, it is difficult to imagine how the GAB can adopt new procedures for flagging suspicious signatures without shifting the burden to the recall committees to verify at least some signatures in circumstances where there exists no objective evidence that would support a challenge. It is also difficult to imagine how the GAB is supposed to implement any new procedures without necessarily building more delay into the process than is otherwise authorized by the statute. The Court of Appeals was firm in stating that these two interests are created by the statute and the Wisconsin Constitution.

    And please don’t respond to the effect that “it will all eventually work itself out.” The time it takes for the litigation and appeals process to determine whether the new GAB procedures have “threaded the needle” and avoided any improper burden shifting will necessarily frustrate the statute’s imposition of a short time frame before the recall election is held.

    The Court of Appeals has clearly identified two areas where the GAB must tread carefully. My hope is that Judge Davis will reconsider whether the statute truly requires the GAB to play such an active role, given the Court of Appeals’ description of the limits on the GAB’s rulemaking power under the statutory language.

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