WISCONSIN ELECTIONS COMMISSION, еt al., Plaintiffs-Respondents, v. DEVIN LEMAHIEU, et al., Defendants-Appellants.
No. 2024AP351
Supreme Court of Wisconsin
Decided February 7, 2025
2025 WI 4
ZIEGLER, C.J.
ZIEGLER, C.J., delivered the majority opinion for a unanimous Court. ANN WALSH BRADLEY, J., filed a concurring opinion, in which DALLET and KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which ZIEGLER, C.J., joined.
¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This case is before the court on bypass pursuant to
¶2 The legislators seek mandamus and declaratory judgment relief, alleging that WEC has a duty to appoint a new administrator. The legislators argue thаt Wolfe‘s term as the administrator of WEC expired on July 1, 2023, and that WEC needs to appoint a new administrator. The legislators’ argument hinges on their interpretation of
¶3 We affirm the decision of the circuit court in part and remand for further proceedings.2
I. BACKGROUND
¶4 Created in 2016,3 WEC possesses a number of powers and duties over the administration of elections in Wisconsin. “Among them, [WEC] has general responsibility for administering chapters five through ten and 12, the power to investigate and prosecute violations of election laws, the duty and power to issue guidance and formal advisory opinions, and the charge to conduct voter education programs.” State ex rel. Zignego v. WEC, 2021 WI 32, ¶18, 396 Wis. 2d 391, 957 N.W.2d 208 (citing
¶5 On May 15, 2019, the senate confirmed thе appointment of Wolfe as the administrator of WEC. Her term expired on July 1, 2023, per
¶6 On June 27, 2023, three members of WEC voted to appoint Wolfe to serve an additional four-year term as the administrator of WEC. But the three remaining members of WEC abstained.4 Under
¶7 On September 14, 2023, the senate held a vote. WEC contends the senatе voted to reject an appointment of Wolfe for another term as administrator. The legislators, however, characterize the vote as “symbolic” and “a vote of no confidence.”5 On the same day, WEC filed a complaint in the circuit court, seeking injunctive and declaratory relief. WEC filed suit against LeMahieu, in his official capacity as the majority leader of the senate; Vos, in his official capacity as a co-chair of the Joint Committee on Legislative Organization (“JCLO“); and Kapenga, in his official
¶8 In their answer, the legislators conceded that (1) Wolfe is lawfully holding over as the administrator of WEC; (2) WEC‘s June 27, 2023 vote did not appoint Wolfe to serve an additional term; (3) the senate cannot reject an appointment when there is no appointment pending; and (4) the JCLO cannot appoint an interim administrator absent a vacancy. But the legislators contended that
¶9 Both WEC and the legislators filed motions for judgment on the plеadings with the circuit court. The circuit court granted WEC‘s motion and denied the legislators’ motion, dismissing their counterclaim and motion to dismiss. The court granted declaratory judgment on each of the five claims raised by WEC. As to the fourth claim—whether WEC has a duty to appoint an administrator even if there is not a vacancy in the position—the circuit court concluded that “[t]he plain text of [
¶10 The legislators appealed. WEC then filed a petition to bypass the court of appeals with this court, which we granted on September 11, 2024.
II. STANDARD OF REVIEW
¶11 We must review the circuit court‘s decision to grant WEC‘s motion for judgment on the pleadings and deny the legislators’ motion for judgment on the pleadings. Whether a party is entitled to judgment on the pleadings is a question of law we review de novo. See Racine Cnty. v. Oracular Milwaukee, Inc., 2010 WI 25, ¶24, 323 Wis. 2d 682, 781 N.W.2d 88 (citing Hocking v. City of Dodgeville, 2009 WI 70, ¶7, 318 Wis. 2d 681, 768 N.W.2d 552); Schuster v. Altenberg, 144 Wis. 2d 223, 228, 424 N.W.2d 159 (1988). In reviewing an order granting or denying judgment on the pleadings, this court uses the same standards for reviewing summary judgment. Schuster, 144 Wis. 2d at 228;
¶12 This case requires this court to determine whether the circuit court erroneously denied a writ of mandamus. This court reviews the decision to grant or deny a writ of mandamus under the erroneous exercise of discretion standard. Miller v. Smith, 100 Wis. 2d 609, 621, 302 N.W.2d 468 (1981). The circuit court erroneously exercises its discretion when it grants or denies a writ of mandamus based on an incorrect interpretation of the law. State ex rel. Althouse v. City of Madison, 79 Wis. 2d 97, 106, 255 N.W.2d 449 (1977) (citing State v. Hutnik, 39 Wis. 2d 754, 159 N.W.2d 733 (1968)).
¶13 The meaning of a statute is a question of law reviewed de novo. Waity v. LeMahieu, 2022 WI 6, ¶18, 400 Wis. 2d 356, 969 N.W.2d 263
(quoting Estate of Miller v. Storey, 2017 WI 99, ¶25, 378 Wis. 2d 358, 903 N.W.2d 759). “[S]tatutory interpretation ‘begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.’ Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.” State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (internal citations omitted) (quoting Seider v. O‘Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659). “[S]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable
III. ANALYSIS
¶14 As before the circuit court, the parties agree on the following. Wolfe is lawfully holding over as the administrator of WEC. There is no vacancy in the administrator position. Prehn, 402 Wis. 2d 539;
¶15 Before this court, the legislators argue that
¶16 This case centers on the proper interpretation of
1. [WEC] shall be under the direction and supervision of an administrator, who shall be appointed by a majority of the members of [WEC], with the advice and consent of the senate, to serve for a 4-year term expiring on July 1 of the odd-numbered year. Until the senate has confirmed an appointment made under this subdivision, [WEC] shall be under the direction and supervision of an interim administrator selected by a majority of the members of [WEC]. If a vacancy occurs in the administrator position, [WEC] shall appoint a new administrator, and submit the appointment for senate confirmation, no later than 45 days after the date of the vacancy. If [WEC] has not appointed a new administrator at the end of the 45-day period, the [JCLO] shall appoint an interim administrator to serve until a new administrator has been confirmed by the senate but for a term of no longer than one year. If the administrator position remains vacant at the end of the one-year period, the process for filling the vacancy described in this subdivision is repeated until the vacancy is filled.
2. The administrator may be removed by the affirmative vote of a majority of all members of [WEC] voting at a meeting of [WEC] called for that purpose.
¶17 The legislators contend that
¶18 To be sure, this court presumes that the use of the word “shall” in a statute creates a duty. See, e.g., State v. Fitzgerald, 2019 WI 69, ¶25 n.8, 387 Wis. 2d 384, 929 N.W.2d 165 (“‘Shall’ is ‘presumed mandatory.‘” (quoting State ex rel. DNR v. Wis. Ct. of App., Dist. IV, 2018 WI 25, ¶13 n.7, 380 Wis. 2d 354, 909 N.W.2d 114)); ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 112 (2012) (“Mandatory words impose a duty; permissive words grant discretion.“); 3 SHAMBIE SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 57:10 (8th ed. 2020) (“The word ‘shall’ ordinarily imposes an imperative duty.“). But the use of the word does not always create a duty. See generally BRYAN A. GARNER, GARNER‘S DICTIONARY OF LEGAL USAGE 952–53 (3d ed. 2011) (discussing various uses of the term); shall, BLACK‘S LAW DICTIONARY 1657 (12th ed. 2024) (same). A presumption is, after all, only a presumption—not an ironclad rule. “A term such as ‘shall’ or ‘may’ does not have an exclusive, fixed, or inviolate connotation, and its meaning in particular cases is determined from . . . the context within which the word аppears.” SINGER, supra, § 57:10; State v. Ziegler, 2012 WI 73, ¶43, 342 Wis. 2d 256, 816 N.W.2d 238 (“[A]scertaining the plain meaning of a statute requires more than focusing on a single sentence or portion thereof.” (citing Teschendorf v. State Farm Ins. Cos., 2006 WI 89, ¶12, 293 Wis. 2d 123, 717 N.W.2d 258)). For example, per
¶19 Read naturally and in context, the first sentence of
¶20 This conclusion is reinforced by the third and fourth sentences of
¶21 The third and fourth sentences of
¶22 In opposing this conclusion, the legislators argue the language in
¶23 This court‘s interpretation of the statute creates no surplusage. The language providing that an administrator “serve[s] for a 4-year term” that “expir[es] on July 1 of the odd-numbered year” allows WEC to appoint a new administrator who, if confirmed by the senate, would replace Wolfe. See Prehn, 402 Wis. 2d 539, ¶29 (“Without the expiration of Prehn‘s term, the Governor would not have the ability to appoint a replacement to complete a successive term.“).10 Additionally, the expiration of the term permits WEC to do so without first calling a meeting to specifically remove Wolfe and creating a vacancy.
¶24 Next, the legislators argue that the bipartisan design of WEC will be thwarted if WEC does not have a duty to appoint a new administrator when an administrator‘s term expires. See C. Coakley Relocation Sys., Inc. v. City of Milwaukee, 2008 WI 68, ¶17, 310 Wis. 2d 456, 750 N.W.2d 900 (“Context and structure of a statute are important to the meaning of the statute.” (citation omitted)); State v. Jensen, 2010 WI 38, ¶15, 324 Wis. 2d 586, 782 N.W.2d 415 (“In construing a statute, we favor a construction that fulfills the purpose of the statute over one that defeats that purpose.” (citing County of Dane v. LIRC, 2009 WI 9, ¶34, 315 Wis. 2d 293, 759 N.W.2d 571)).
The legislators warn that “a partisan minority of WEC could keep a holdover [a]dministrator in place indefinitely,” which they assert conflicts with the design of WEC аs a bipartisan institution.
¶25 The legislators point this court to
¶26 But even if the legislators’ premise that
commissioners is still required to replace a holdover administrator.
¶27 Finally, the legislators argue that WEC‘s failure to appoint a new administrator after Wolfe‘s term expired violates the sеparation of powers. But the legislators do not advance a traditional separation-of-powers argument based on the Wisconsin Constitution‘s text and structure. See Serv. Emps. Int‘l Union, Loc. 1 v. Vos, 2020 WI 67, ¶31, 393 Wis. 2d 38, 946 N.W.2d 35 (explaining that the constitutional separation of powers flows, in part, from the constitution‘s vesting clauses); Koschkee v. Taylor, 2019 WI 76, ¶¶10–11, 387 Wis. 2d 552, 929 N.W.2d 600 (same). Instead, the legislators contend that WEC is violating the separation of powers embedded in the text of
¶28 As indicated by the quotation above, the legislators’ separation-of-powers argument relies on the conclusion that WEC has a duty to appoint a new administrator when an administrator‘s term expires. Because this court rejects that WEC has a duty to appoint a new administrator absent a vacancy in the position, the legislators’ argument necessarily fails. See supra ¶¶18–26. Indeed, counsel for the legislators conceded at oral argument that their separation-of-powers argument is not independent from their argument that the statute imposes a
mandatory duty on WEC to appoint an administrator to replaсe Wolfe.14 Consequently, we reject the legislators’ statutory separation-of-powers argument.
¶29 We now turn to the circuit court‘s decision to deny a writ of mandamus. “Mandamus is an extraordinary writ issued in the discretion of the circuit court to compel compliance with a plain legal duty.” Mount Horeb Cmty. Alert v. Vill. Bd. of Mt. Horeb, 2003 WI 100, ¶9, 263 Wis. 2d 544, 665 N.W.2d 229 (citing Althouse, 79 Wis. 2d at 105–06); Pasko, 252 Wis. 2d 1, ¶24 (citation omitted). There are four requirements that must be met before a court may issue a writ of mandamus: “(1) a clear legal right; (2) a positive and plain duty; (3) substantial damages; and (4) no other adequate remedy at law.” L. Enf‘t Standards Bd. v. Vill. of Lyndon Station, 101 Wis. 2d 472, 494, 305 N.W.2d 89 (1981).
¶30 The circuit court did not err by denying a writ of mandamus. As detailed above,
WEC has not violated a positive and plain duty, the circuit court did not err in denying a writ of mandamus.
IV. CONCLUSION
¶31 We affirm the decision of the circuit court in part and remand for further proceedings.
By the Court.—The judgment and order of the circuit court are affirmed in part, and the cause is remanded to the circuit court.
WISCONSIN ELECTIONS COMMISSION, et al., Plaintiffs-Respondents, v. DEVIN LEMAHIEU, et al., Defendants-Appellants.
ANN WALSH BRADLEY, J.
ANN WALSH BRADLEY, J., with whom REBECCA FRANK DALLET AND JILL J. KAROFSKY, JJ., join, concurring.
¶32 I join the majority opinion in full. Under the current state of our case law, its analysis is complete and correct. However, I write separately to comment on the majority opinion‘s reliance on State ex rel. Kaul v. Prehn, 2022 WI 50, 402 Wis. 2d 539, 976 N.W.2d 821. I disagreed with the Prehn decision when it was made, and I disagree with it today.1 I write to clarify that the majority opinion‘s reliance should not be taken as an endorsement of the Prehn court‘s reasoning. Accordingly, I respectfully concur.
¶33 In the present case, we apply Prehn to arrivе at the premise that no vacancy in the administrator position exists. Majority op., ¶¶3, 14, 31. Indeed, LeMahieu concedes, pursuant to Prehn, that Wolfe is lawfully holding over and that there is no vacancy. Id., ¶14; see
¶34 No party here asked us to overrule or otherwise modify Prehn. Driving this point home, at oral argument counsel for both WEC and LeMahieu confirmed that they were not seeking to revisit Prehn. Because both parties made abundantly clear that neither was requesting that Prehn be revisited in this case, the issue was not presented. Consequently, we do not address it here. See State v. Fermanich, 2023 WI 48, ¶15 n.5, 407 Wis. 2d 693, 991 N.W.2d 340 (declining to overrule prior case law where no party made such a request); St. Augustine Sch. v. Taylor, 2021 WI 70, ¶37, 398 Wis. 2d 92, 961 N.W.2d 635 (same); see also Bartlett v. Evers, 2020 WI 68, ¶123, 393 Wis. 2d 172, 945 N.W.2d 685 (Ann Walsh Bradley, J., concurring in part, dissenting in part) (“Deciding a case based on a theory not argued by any party not only blindsides the parties аnd sidesteps their input,
¶35 In Prehn, the court addressed whether the expiration of Frederick Prehn‘s term on the Natural Resources Board created a vacancy such that the governor could appoint a provisional replacement, despite Prehn‘s desire to remain as a holdover. The majority concluded that “[u]nder
Board does not create a vacancy.” 402 Wis. 2d 539, ¶3. I need not conduct a deep dive into the shortcomings of the reasoning that led to this conclusion. As Justice Dallet aptly observed, we are not to interpret statutes so as to render absurd results. Id., ¶79 (Dallet, J., dissenting). She capably explained in her dissent the majority opinion‘s infirm foundаtion. Suffice it to say that the “majority‘s absurd holding allows Prehn‘s six-year term on the Board of Natural Resources—which expired over a year ago—to last for as long as Prehn wants it to, so long as he refuses to leave and the senate doesn‘t confirm a successor nominated by the governor.” Id., ¶58 (Dallet, J., dissenting).
¶36 In a circumstance where the parties have presented the issue, it may behoove us to give Prehn a second look. See Tavern League of Wisconsin, Inc. v. Palm, 2021 WI 33, ¶38, 396 Wis. 2d 434, 957 N.W.2d 261 (Hagedorn, J., concurring) (indicating that under “different circumstances” it may be necessary to reconsider a past case but declining to do so where the parties have not sought such a reconsideration). As explained in Justice Dallet‘s dissent in Prehn, that case rests on shaky ground. The charge of this court is to interрret our statutes with a long view, encouraging stability and the functioning of government in a way that makes sense. At the very least, we should question an interpretation that perpetuates “disorder and chaos.” Prehn, 402 Wis. 2d 539, ¶58 (Dallet, J., dissenting).
¶37 For the reasons stated, I respectfully concur.
WISCONSIN ELECTIONS COMMISSION, et al., Plaintiffs-Respondents, v. DEVIN LEMAHIEU, et al., Defendants-Appellants.
REBECCA GRASSL BRADLEY, J.
REBECCA GRASSL BRADLEY, J., with whom ANNETTE KINGSLAND ZIEGLER, C.J., joins, concurring.
¶38 “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” THE FEDERALIST NO. 78, at 526 (Alexander Hamilton) (J. Cooke ed., 1961).
¶39 Less than three years ago, this court correctly concluded the expiration of Wisconsin Department of Natural Resources (“DNR“) board member Frederick Prehn‘s six-year term did not сreate a vacancy and he lawfully retained his position as a holdover. State ex rel. Kaul v. Prehn, 2022 WI 50, 402 Wis. 2d 539, 976 N.W.2d 821. In this case—relying on Prehn—the parties agree the expiration of Wisconsin Elections Commission (“WEC“) Administrator Meagan Wolfe‘s four-year term did not create a vacancy and Wolfe is serving as a lawful holdover. Applying Prehn, the court unanimously concludes, “WEC does not have a duty to appoint a new administrator to replace Wolfe simply because her term has ended” since “[n]o vacancy in the position exists.” Majority op., ¶31.
¶40 Three members of the majority in this case dissented in Prehn, deeming its holding “absurd,” “nonsensical,” and based on a “misguided reading” of the law. Prehn, 402 Wis. 2d 539, ¶58 (Dallet, J., dissenting, joined by Ann Walsh Bradley and Karofsky, JJ.). The dissenters claimed the court‘s decision “steers our state‘s government directly into disorder аnd chaos, threatening the
¶41 Have the Prehn dissenters changed their minds or developed respect for the doctrine of stare decisis? Not likely. Although they join the majority opinion, Justice Ann Walsh Bradley, joined by Justices Rebecca Frank Dallet and Jill J. Karofsky double down on their disdain for Prehn, attempting to rewrite the majority opinion in this case to their liking by “clarify[ing] that the majority opinion‘s reliance should not be taken as an endorsement of the Prehn court‘s reasoning.” Justice Ann Walsh Bradley‘s concurrence, ¶32. Yes, it should, because the majority opinion rightly relies upon Prehn, as did the parties. Prehn expounds the principles the rest of the majority (Chief Justice Annette Kingsland Ziegler and Justices Rebecca Grassl Bradley and Brian Hagedorn) consistently applied then and now. Indeed, Justice Ann Walsh Bradley acknowledges “we apply Prehn to arrive at the premise that no vacancy in the administrator position exists.” Id., ¶33. Nevertheless, Justice Ann Walsh Bradley attacks Prehn for its ostensible “shortcomings of the reasoning,” its “render[ing of] absurd results,” its “infirm foundation,” its “shaky ground” and an “interpretation that perpetuates ‘disorder and chaos.‘” Id., ¶¶35–36 (citations omitted). If that weren‘t enough to convey her contempt for Prehn, Justice Ann Walsh Bradley (and two additiоnal justices) signal a willingness to “give Prehn a second look” but only if the parties present the issue. Id., ¶36. If Prehn were as absurd or as dangerous as its dissenters profess, they would not wait for a party to advocate its overruling before stemming the “disorder and chaos” they insisted Prehn would produce. Prehn, 402 Wis. 2d 539, ¶58 (Dallet, J., dissenting).
¶42 None of the Prehn dissenters disclose a principled basis for dissenting in Prehn but joining the majority opinion in this case, suggesting that only preferred results produce such inconsistency. Governor Scott Walker had appointed Prehn. Id., ¶5. In 2021, Governor Tony Evers sought to replace him, but the Republican-controlled Senate did not confirm his nominee. Id., ¶6. Just like Wolfe‘s position, the expiration of Prehn‘s term did not create a vacancy and Prehn continued to occupy his post lawfully after his term ended. Nevertheless, the dissenters rallied behind Governor Evers’ efforts to replace him. During oral arguments in this case, Justice Jill J. Karofsky, a Prehn dissenter, seemingly unironically speculated that the legislators’ argument against Wolfe‘s tenure “has little to do with what the law actually says and far more to do with who is in the[] position[].”1 Given the Prehn dissenters’ grave concerns with the outcome in that case, one could infer the same motivation for their irreconcilable positions.
¶43 Perhaps for Prehn‘s dissenting justices, the distinction between Prehn and this case is not actually rooted in the statutory language or principles of stare decisis. After all, the Prehn dissenters
enthusiastically endorsed overruling a prior case contradicting their atextual analysis about holdover public officials. See Prehn, 402 Wis. 2d 539, ¶69 (Dallet, J., dissenting) (advocating we overrule State ex rel. Thompson v. Gibson, 22 Wis. 2d 275, 125 N.W.2d 636 (1964), another case in which the court concluded an office with a lawful holdover is not vacant). And the Prehn dissenters, joined by the court‘s newest justice, have had no qualms about overruling recent cases to accomplish their transparently political agenda.2
¶44 Those justices cannot have it both ways. If Prehn‘s pronouncement that holdovers do not create vacancies is “nonsensical,” then Wolfe holding over is too. If the rule of law is to govern, the resolution of each case should not depend upon the individual occupying the office. Advocates are free to switch sides from one case to the next as their clients’ interests warrant, but justices are supposed to declare what the law is, regardless of the impact on their political benefactors or detractors. It appears the Prehn dissenters onсe again “succumb[] to the temptation of results at the expense of [their] own legitimacy.” Clarke v. WEC, 2023 WI 79, ¶229, 410 Wis. 2d 1, 998 N.W.2d 370 (Rebecca Grassl Bradley, J., dissenting) (citing ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 2 (1990)).
¶45 “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” THE FEDERALIST NO. 78, supra, at 529 (Alexander Hamilton). This case required the court to do what it did in Prehn: interpret the law as enacted and render a decision accordingly. Inconsistency suggests results-oriented decision making. Reserving the option to overrule Prehn (and by extension, this case too) confirms it.
Notes
Court: If this court disagree[s] with your interpretation of the statute, there isn‘t an alternative argument you‘re making to sustain your position, is that correct?
Counsel: That‘s correct, your honor.