Patricia H. ROTH, Petitioner-Respondent-Petitioner, v. LAFARGE SCHOOL DISTRICT BOARD OF CANVASSERS, Respondent-Respondent, Gail J. MULLER, Third Party-Petitioner-Appellant.
No. 02-0542
Supreme Court of Wisconsin
Decided February 4, 2004.
2004 WI 6 | 677 N.W.2d 599 | 268 Wis. 2d 335
Oral argument October 8, 2003.
For the third party-petitioner-appellant there was a brief by George C. Wilbur, LaFarge, and oral argument by George C. Wilbur.
For the respondent-respondent there was a brief (in the court of appeals) by David L. Jenkins and Jenkins and Stittleburg, Viroqua.
¶ 2. The November 7, 2000 referendum was held to determine whether a project for school improvements should proceed.2 After the polls closed, the referendum ballots were counted. According to the returns, 392 votes were cast for the referendum, and 392 votes were cast against the referendum. Wisconsin
¶ 3. Roth, an elector of the LaFarge School District who voted in the referendum, requested a recount of the ballots pursuant to
¶ 4. During the recount, the Board disqualified three “yes” votes and three “no” votes.5 Of the three “yes” votes, one was disqualified because the initials of only one poll worker were on the ballot, as opposed to the two sets of initials that are required by
¶ 5. Pursuant to
¶ 6. Vernon County Circuit Judge Michael Rosborough determined that Muller should not be allowed to intervene because she was time barred. The circuit court further held that the “yes” vote should have been counted, despite the fact that some of the procedural requirements were not followed. The circuit court
¶ 7. The court of appeals8 cоncluded that the circuit court erred when it prevented Muller from asserting her own claim. The court noted that the deadline for filing an appeal is applicable to aggrieved parties only. The court of appeals noted that Muller was not an aggrieved party, as she opposed the referendum and the recount resulted in its failure. Thus, Muller had no standing to appeal the referendum results. Nevertheless, the court of appeals reasoned that Muller satisfied the necessary requirements to intervene as a matter of right, and should be able to raise her own claim. The court of appeals further conсluded that the circuit court correctly decided that the “yes” vote should have been counted. However, because the “no” vote was not part of the record, the court of appeals remanded the cause to the circuit court, for a determination of whether the Board‘s conclusion that voter intent could not be ascertained from the ballot, was supported by substantial evidence.
¶ 8. Circuit Judge Michael McAlpine9 found that the Board did not misinterpret
¶ 10. The LaFarge School District held a referendum in November 2003. At oral argument, it was suggested that the question of whether the “no” vote should be counted may be rendered moot by the outcome of the November 2003 referendum.13 Since that referendum has now been conducted, under the circumstances that now exist, we will address the issue of
II
¶ 11. As an initial matter, we must address Roth‘s allegation that the court of appeals violated the law of the case doctrine. Roth asserts that the court in Roth v. LaFarge Sch. Dist. Bd. of Canvassers, 2001 WI App 221, 247 Wis. 2d 708, 634 N.W.2d 882 (Roth I) concluded thаt the Board‘s determination was a finding of fact, which the circuit court should review using
¶ 12. We are not bound by the law of the case doctrine. In Univest Corp. v. Gen. Split Corp., 148 Wis. 2d 29, 38-39, 435 N.W.2d 234 (1989), we noted that “the law of the case doctrine is not a rule to which this court is bound by any legislative enactment, nor is it a rule tо be inexorably followed in every case.” We further held that “once the case is before us, it is within our discretion under these standards to review any substan-
III
¶ 13. We now address whether
¶ 14. Nevertheless, this court may address a moot issue if: (1) the issue is of great public importance; (2) the situation occurs so frequently that a definitive decision is necessary to guide circuit courts; (3) the issue is likely to arise again and a decision of the court would alleviate uncertainty; or (4) the issue will likely be repeated, but evades appellate review because the appellate review process cannot be completed or even undertaken in time to have a practical effect on the parties. State ex rel. Hensley v. Endicott, 2001 WI 105, ¶ 5, 245 Wis. 2d 607, 629 N.W.2d 686. Whether the
¶ 15. We review the court of appeals’ decision, which reviewed the decision of the Board, not the decision of the circuit court. Univ. of Wisconsin v. Dane County, 2000 WI App 211, ¶ 10, 238 Wis. 2d 810, 618 N.W.2d 537. The Board of Canvasser‘s determination was, in this case, a determination as a matter of law, since it involved the interpretation and application of a statute. More specifically, we must determine whether the Board of Canvassers committed a legal error with respect to its interpretation and application of
¶ 16. To aid in our discussion, a description of the ballot in question is warranted. In the box to the right of the word “no” on the ballot, there is a clearly visible slash (\) mark written in pencil. See attached exhibit at page 354.
¶ 17. Roth asserts that the Roth II court misinterpreted
¶ 18. Muller counters that the legislature‘s intent, by enacting
¶ 19. Wisconsin courts have consistently noted that they do not want to deprive voters of the chance to have their votes counted. In State ex rel. Wood, 38 Wis. at 84, this court was confronted with the question of whether a defective voter registry should result in the disenfranchisement of voters. We stated that a statute provided for voter supervision of the process of voter registry, but the fact that the registry was defective did not mean that the votes should not be counted. Id. at 88. The statute allowing the voters’ voluntary supervision of the registry had to be construed, so as to render the right of suffrage unencumbered and unimpaired. Id.
¶ 20. In State ex rel. Blodgett v. Eagan, 115 Wis. 417, 418, 91 N.W. 984 (1902), two ballots were originally excluded from an election for the office of assessor because the voters wrote in, in longhand, the name of one candidate, yet failed to cross out the name of the candidate whom they did not intend to elect. After discussing Wisconsin‘s tradition of giving effect to the will of the voter, this court stated that the voter‘s intention that can be discerned from the ballot itself should control. Id. at 419-20. We concluded that “the voter shall not be disenfranchised because of mere mistake, but his intention shall prevail . . . .” Id. at 421.
¶ 21. In State ex rel. Symmonds v. Barnett, 182 Wis. 114, 129, 195 N.W. 707 (1923), we concluded that registered voters, whose names had been omitted from the voter registry lists through the fault of election officials, should nоt have their votes invalidated. The Barnett opinion noted the State ex rel. Wood reasoning, which stated that voters should not be deprived of their constitutional right to vote simply because election
¶ 22. In State ex rel. Graves v. Wiegand, 212 Wis. 286, 288, 249 N.W. 537 (1933), the inspectors at several election precincts failed to comply with a statute that direсted the appropriate procedures that were to be used when returning ballots to the county clerk. Nevertheless, this court held that the votes should be counted. Id. at 296. We stated that the primary concern was the protection of the rights and interests of the voters. Id. at 292. Voting statutes are to be construed so as to give effect to the intent of the voter, notwithstanding the fact that there was a failure to comply with some of the provisions governing elections. Id. Moreover, we noted, significantly, that ballots are the best evidence of the intention of voters. Id. at 293.
¶ 23. In Ollmann, 238 Wis. at 577-78, this court refused to disqualify ballots where two ballot clerks each wrote their own initials and the initials of the other clerk on each ballot that was cast. Although this practice violated the statute governing the initialing of the ballots, we noted that to construe the statute as mandatory would be unconstitutional in this case. Id. at 578. We analogized the situation to the circumstances that were present in State ex rel. Wood and stated that the failure on the part of the election officials to perform their duties should not deprive the voters of
¶ 24. In Petition of Leuch, 244 Wis. 305, 317, 12 N.W.2d 61 (1943), we held that the voters who cast their ballots in the election for municipal judge should not be disenfranchised, because the election commissioners did not have enough time to reprint the ballots so as to include the name of a new candidate. Although there was no statutory authority for the board‘s action in printing stickers and pasting them on the ballots, the statutory framework for elections should be construed so as to give effect to the will of the voters. Id. at 314. We further noted a relevant statutory provision, which stated that ballots should be counted for the persons for whom they were intended when voter intent can be ascertained. Id.
¶ 25. In Hackbarth v. Erickson, 147 Wis. 2d 467, 433 N.W.2d 266 (1988), the court of appeals gave effect to the will of the voter even when the error was due to the voter‘s own mistake. In Hackbarth, the court of appeals declined to disqualify eight ballots that were marked with an “X” in the box after the mayoral candidate‘s name, yet also contained the candidate‘s name as a write-in for the position of alderman. Id. at 469. Noting Wisconsin‘s longstanding tradition of giving effect to the will of the voter, the court rejected the idea that the ballot markings could be attributed to the mistake or indecision of the voter. Id. at 473.
¶ 27. We conclude that with proper application of
¶ 28. Roth asserts that the reasoning in Schmidt v. West Bend Bd. of Canvassers, 18 Wis. 2d 316, 118 N.W.2d 154 (1962) appropriately resolves the question before us. In Schmidt, we were confronted with the
¶ 29. We disagree that the facts in this case may be likened to the circumstances in Schmidt. In Schmidt, there was an attempt to achieve a complete obliteration of the vote. Moreover, the ballot in Schmidt contained other marks that indicated an intent to vote for candidates running for other offices. In this case, there is a mark that fits within the category of those enumerated by
¶ 30. We affirm the court of appeals’ decision and hold that, consistent with
By the Court.—The decision of the court of appeals is affirmed.
¶ 32. We should have learned long ago that by accurately describing only a part of the picture, we run the risk of distorting the whole. So it was for those who contested the claim that the world was round. By accurately describing only that part which was visible and flat, they distorted the whole.
¶ 33. And, so it is with the majority. By accurately describing part of the ballot as containing “a clearly visible slash mark (\) written in pencil” (Majority op., ¶ 16) but failing to describe the rest of the picture, the majority runs the risk of distorting the whole.
¶ 34. The whole, as viewed by the Board of Canvassers, depicts an indentation on the ballot of a forward slash mark (/), crossing the light backward slash mark described by the majority and forming a completed (X). It is this colorless forward slash mark that caused the Board to make its finding of fact that the mark constituted an erasure.
¶ 35. In fairness to the majority, it is unclear whether the indentation on the ballot constituting the colorless (or nearly colorless) forward slash mark occurred because of a malfunctioning mechanical pencil or because of an erasure. What is clear, however, is that the Board is the trier of fact, and that pursuant to
¶ 36.
[T]he court may not substitute its judgment for that of the board of canvassers or the chairperson or designee as to the weight of the evidence on any disputed finding of fact. The court shall set aside the determination if it finds that the determination depends on any finding of fact that is not supported by substantial evidence.
¶ 37. Here, the Board of Canvassers made a factual finding. With respect to the ballot in question, the recount minutes state the following: “onе ballot looks erased—3 canvassers cannot determine with reasonable certainty what was intended. Ballot set aside. (#0002). . . .”
¶ 38. In framing the issue in this case, the majority opinion ignores this factual finding. It portrays the case as dealing only with an interpretation of law, the statutory interpretation of
¶ 39. After reviewing the ballot, I would conclude that the Board‘s finding is supported by substantial evidence. I have attached to this opinion an exhibit from the petitioner‘s brief, which is a dark photocopy of the disputed ballot. It reveals an “X” like figure, with the upper right side of the “X” missing. The original mark cannot be seen in the majority‘s photocopy of the ballot. It can be seen in part, however, in the darker photocopy submitted by the petitioner.
¶ 40. The fact that the backward slash portion of the “X” is very light and the forward slash indentation is partially missing provides substantial evidence to support the factual finding of an erasure. Accordingly, I would defer to the Board‘s factual finding.
¶ 41. Recognizing that the mark is an erasure, the next step is to determine which statute governs. The only statute that speсifically addresses erasures in the context of elections is
¶ 42. If the statute does not apply, the legislature has not spoken on the issue and we must look to the principle of inclusion (the legislative preference for counting ballots) for guidance. Assuming that
¶ 43. Two conditions must be met before thе vote is disqualified: (1) “the elector makes another mark next to the name of one or more candidates for the same office,” and (2) “counting of the mark would result in an excess number of votes cast for the office.”
¶ 44. Wisconsin‘s general principle of inclusiоn supports the conclusion of counting the vote in this case. As the majority correctly recognizes, this principle is supported by our precedent, “Wisconsin courts have consistently noted that they do not want to deprive voters of the chance to have their votes counted.” Majority op., ¶¶ 19-25 (citing e.g., State ex rel. Wood v. Baker, 38 Wis. 71 (1875), Ollmann v. Kowalewski, 238 Wis. 574, 300 N.W. 183 (1941), Hackbarth v. Erickson, 147 Wis. 2d 467, 433 N.W.2d 266 (Ct. App. 1988)).
¶ 45. In sum, I believe that the Board‘s finding of an erasure should have been reviewed as a question of fact and not law. I would defer to that finding because an examination of the ballot reveals that it is supported by substantial evidence. However, because the conditions precedent to the statute governing erasures are not present, and Wisconsin‘s general principle of inclusion controls, I would count the vote.
Notes
Any apparent erasure of a mark next to the name of a candidate may not be counted as a vote for that candidate if the elector makes another mark next to the name of one or more different candidates for the same office and counting of the mark would result in an excess number of votes cast for the office.
“Shall the following Initial Resolution be approved?”
Initial Resolution Authorizing General Obligation Bonds of the School District of LaFarge in an Amount Not to Exceed $2,250,000
The School Board of the School District of LaFarge (the “District“) hereby resolves as follows:
Under and by virtue of the provisions of
(a) Constructing and equipping a locker room and fitness room addition totaling approximately 2,100 square feet to an existing Elementary, Junior High and Senior High Buildings located at 301 West Adams Street, LaFarge, Wisconsin;
(b) Major/minor remodeling of existing Elementary, Junior and Senior High complex, including roof repair, asbestos removal, installation of elevator, lift and ramps for ADA accessibility, boiler replacement, window replacement, HVAC modifications, electrical upgrades and other general remodelling;
(c) Bus garage flooring, parking and paving, drain tile and earth work and other fixed equipment; and
(d) Architect, engineering, legal and closing costs
At the bottom of the ballot, the word “yes” appeared with a box to the right of it, indicating the space for voters to mark. Similarly, the word “no” appeared with a box to the right of it.(a) Within 5 business days after completion of the recount determination by the board of canvassers in all counties concerned, or within 5 business days after completion of the recount determination by the chairperson of the board or the chairperson‘s designee whenever a determination is made by the chairperson or designee, any candidate, or any elector when for a referendum, aggrieved by the recount may appeal to circuit court.
(2) Ascertainment of intent. All ballots cast at an election which bear the initials of 2 inspectors shall be counted for the person or referendum question for whom or for which they were intended, so far as the electors’ intent can be ascertained from the ballots notwithstanding informality or failure to fully comply with other provisions of chs. 5 to 12.
....
(c) If an elector marks a ballot with a cross (X), or any other marks, as I, A, V, O, /, \/, +, within the square to the right of a candidate‘s name, or any place within the space in which the name appears, indicating an intent to vote for that candidate, it is a vote for the candidate whose name it is opposite.
Unless the court finds a ground for setting aside or modifying the determination of the board of canvassers or the chairрerson of the board or the chairperson‘s designee, it shall affirm the determination. The court shall separately treat disputed issues of procedure, interpretations of law and findings of fact. The court may not receive evidence not offered to the board of canvassers or the chairperson or chairperson‘s designee except for evidence that was unavailable to a party exercising due diligence at the time of the recount or newly discovered evidence that could not with due diligence have been obtained during the recount, and except that the court may receivе evidence not offered at an earlier time because a party was not represented by counsel in all or part of a recount proceeding. . . . The court shall set aside or modify the determination if it finds that the board of canvassers or the chairperson or chairperson‘s designee has erroneously interpreted a provision of law and a correct interpretation compels a particular action. If the determination depends on any fact found by the board of canvassers or the chairperson or chairperson‘s designee, the court may not substitute its judgment for that of the board of canvassers or the chairperson or designee as to the weight of the evidence on any disputed finding of fact. The court shall set aside the determination if it finds that the determination depends on any finding of fact that is not supported by substantial evidence.