Carlson v. Jones

433 N.W.2d 635, 147 Wis. 2d 630, 1988 Wisc. App. LEXIS 1005
CourtCourt of Appeals of Wisconsin
DecidedNovember 17, 1988
DocketNo. 88-1214
StatusPublished
Cited by1 cases

This text of 433 N.W.2d 635 (Carlson v. Jones) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carlson v. Jones, 433 N.W.2d 635, 147 Wis. 2d 630, 1988 Wisc. App. LEXIS 1005 (Wis. Ct. App. 1988).

Opinion

NETTESHEIM, J.

Roger Carlson, Town Chairman for the Town of Oconomowoc, appeals from a circuit court certification directing a recall election for his position. Carlson alleges irregularities in the recall procedure and defects in the recall petition. Other than Carlson’s claim that the petition failed to state cause for his recall, we conclude that the circuit court lacked subject matter jurisdiction to address Carlson’s complaints. We also conclude that the circuit court correctly determined that the petition stated cause for recall. Therefore, the court properly issued its certification directing the recall election.

On April 15, 1988, William Jones filed with the town clerk a notice of intent to circulate a petition calling for the recall of Carlson as town chairman. Within sixty days, the recall petition was filed with the clerk who, on June 8, 1988, certified that it complied with sec. 9.10, Stats. The clerk then transmitted the petition to the clerk of the circuit court for Waukesha county pursuant to sec. 9.10(4)(a). The following day, the circuit court issued an order directing a hearing on the petition.

Carlson filed a written response denying the allegations in the recall petition. He further argued that: (1) the petition did not state cause for recall as required by sec. 9.10(4), Stats.; (2) the petition lacked a disclaimer indicating the person paying for the petition, as required by sec. 11.30, Stats.; (3) the notice of intent to circulate the recall petition did not comply with the requirements of sec. 9.10(2)(d); and (4) the [634]*634trial court was required to make a specific finding as to the number of valid signatures on the petition.

At the hearing, Jones argued that the circuit court was without authority pursuant to sec. 9.10(4)(b), Stats., to address any procedural irregularities or any petition defects unrelated to the question of cause. The court, however, chose to address all of Carlson’s complaints and found them to be meritless. As to the sufficiency of the petition’s allegations regarding "cause for recall,” the court determined that the allegations were sufficient so as to give Carlson notice of the basis for the recall and that the reasons cited in the petition "constitute allegations of inefficiency [and] neglect of duty, as distinguished from misconduct or malfeasance.” On June 17, 1988, the court ordered issuance of its certificate directing that the recall election be held. Carlson then brought a motion to negate the certification based on further evidence that the notice of intent requirement under sec. 9.10(2)(d) had not been followed. The court also denied this motion and affirmed the certification. Carlson appeals.

The issues on appeal are the same as those raised in the trial court. We first address Carlson’s claims of procedural irregularity and defects in the petition unrelated to the question of cause. In the past, Wisconsin courts have addressed these kinds of challenges to recall procedure and petitions. In re Haase, 120 Wis. 2d 40, 44-45, 353 N.W.2d 821, 823 (Ct. App. 1984); In re Montreal Mayor, 63 Wis. 2d 375, 386-87, 217 N.W.2d 283, 290 (1974). However, following these decisions, the legislature amended sec. 9.10, Stats., to restrict the jurisdiction of the circuit court. 1983 Wis. Act 491. What is now sec. 9.10(4)(b) states in part, "[t]he circuit court ... shall determine by hearing [635]*635whether the petition states cause for the recall as defined in s. 17.16(2). The court has jurisdiction only to determine whether the petition states cause for recall. ” Id. (emphasis added).

Subject matter jurisdiction is conferred on a court solely by the constitution and statutes of the state. See Thompson v. Thompson, 129 Wis. 2d 348, 352, 384 N.W.2d 713, 715 (Ct. App. 1986). Thus, whether a court has subject matter jurisdiction presents a question of statutory and constitutional interpretation. This is a question of law to which we apply an independent standard of review. See State v. Gavigan, 122 Wis. 2d 389, 391, 362 N.W.2d 162, 164 (Ct. App. 1984).

Where the legislature enumerates grounds of judicial jurisdiction, it is considered to imply its intent to withhold jurisdiction in cases which are not enumerated. City of West Allis v. WERC, 72 Wis. 2d 268, 274, 240 N.W.2d 416, 419 (1976). Furthermore, absent ambiguity, judicial rules of construction are not permitted and we must give the words of the statute their obvious and intended meaning. State Historical Soc’y v. Village of Maple Bluff, 112 Wis. 2d 246, 252-53, 332 N.W.2d 792, 795 (1983).

Section 9.10(4)(b), Stats., states that the circuit court only has jurisdiction to review whether the petition states cause for recall. This language not only clearly states the jurisdiction conferred by the statute, but it also implies a legislative intent to withhold jurisdiction as to any other issues sought to be raised under sec. 9.10(4)(b). The procedural irregularities and "non-cause” defects in the petition alleged by Carlson [636]*636do not go to the issue of whether the petition states cause for recall. We conclude that the circuit court lacked subject matter jurisdiction to address these issues. They are not properly before us on appeal.1

We turn now to the issue of whether the circuit court properly determined that the petition stated cause for Carlson’s recall. Carlson contends that the presumption that public officers have properly discharged their duties, see Georgiades v. Glickman, 272 Wis. 257, 271, 75 N.W.2d 573, 580-81 (1956), also applies to recall procedures. He argues that Jones must present facts to rebut this presumption in order to satisfy the "cause for recall” requirement of sec. 9.10(4)(b), Stats. We disagree. Although this presumption does exist, we are unaware of its application to recall procedure. Moreover, this presumption would conflict with the principle that statutory provisions relating to recall are to be liberally interpreted in favor of the electorate. In re Delafield City Official, 63 Wis. 2d 362, 374, 217 N.W.2d 277, 283, (1974).

Alternatively, even if the presumption were to apply to recall cases, it is rebutted by a sufficient statement of "cause for recall” in the petition, not by an evidentiary presentation of facts proving the allegations as Carlson suggests.

Carlson next applies summary judgment methodology and contends that because he denied the allegations in the petition, Jones must present evidence to [637]*637sustain the allegations. This is without basis in law. As noted earlier, an evidentiary presentation of facts, akin to a trial, is not essential to the circuit court’s evaluation of a recall petition.2

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Related

In Re Recall Petition of Carlson
433 N.W.2d 635 (Court of Appeals of Wisconsin, 1988)

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Bluebook (online)
433 N.W.2d 635, 147 Wis. 2d 630, 1988 Wisc. App. LEXIS 1005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carlson-v-jones-wisctapp-1988.