McCarthy v. Elections Board

LOUIS J. CECI, J.

(dissenting). I dissent from the per curiam opinion filed this date for the following reasons.

*495The review sought by the petitioners is governed by the common-law writ of certiorari in which the scope of the review is limited to the issues of whether the actions by the respondents were arbitrary or capricious or in excess of the Selection Committee's legal authority. As stated in Federated Elec. v. Kessler, 131 Wis. 2d 189, 206, 388 N.W.2d 553 (1986):

In certiorari review, the reviewing court is limited to determining: (1) whether the [committee] kept within its jurisdiction; (2) whether it acted according to law; (3) whether its actions were arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question.

In a certiorari case, the court is not allowed to consider matters outside the record. State ex rel. Kaczkowski v. Fire & Police Comm., 33 Wis. 2d 488, 504, 148 N.W.2d 44 (1967).

This court has held that mandamus does not lie to compel the manner in which a government body or office exercises statutorily conferred discretion. State ex rel. Ahlgrimm v. State Elections Bd., 82 Wis. 2d 585, 597, 263 N.W.2d 152 (1978), cited with approval in Labor & Farm Party v. Elections Board, 117 Wis. 2d 351, 358, 344 N.W.2d 177 (1984). To the extent the Selection Committee's decision not to place the petitioner aspirants, or some of them, on the ballot through this method represented an exercise of the committee's discretion under the statute, mandamus is not an available remedy.

This court's review in this case, therefore, is strictly limited to the issues of whether the Selection Committee acted outside its grant of authority from the legislature and whether the committee committed any errors of law *496in reaching its decision. Any other considerations result in this court's improperly grasping political decisions without basis in law. This court should not appropriate to itself the functions of a political supercommittee. I conclude that the Selection Committee's decision not to place the names of the six petitioners on the ballot was an exercise of statutorily conferred discretion. The Selection Committee is not a dancing bear, required to perform the steps only as this court or anyone else might insist. Therefore, this court cannot compel the manner in which the Selection Committee exercises its discretion. The court has no authority to take the actions mandated by the majority opinion and thereafter set a course that can be perceived as a forum for political mischief.

The Presidential Preference Selection Committee is a legislatively created political body. It is composed of representatives of Wisconsin's political parties who have met the requirements of the statute in garnering the requisite number of votes at the previous gubernatorial election. The legislature intended that the committee make political decisions and therefore constituted the committee with individuals active in partisan political affairs, people who would therefore be knowledgeable about state and national political affairs.

The citation to State ex rel. LaFollette v. Democratic Party, 93 Wis. 2d 473, 287 N.W.2d 519 (1980), is simply a ploy on the part of the majority in its vain attempt to lend credibility to its position. One does not need to be a political activist to recognize that by the composition of the Selection Committee, the legislature directed the committee to make political decisions. The open primary was the thrust of the LaFollette case. Wisconsin does indeed have an open primary, and the statutes under consideration in this case clearly do nothing *497to frustrate either the spirit or operation of an open primary. Nothing contained within sec. 8.12, Stats., either hinders or impedes the operation of our open primary system. Further, this legislation recognizes the possibility that some erstwhile ballot position-seeker would not be recognized by a majority of the Sélection Committee and provided that any person may become a candidate for political office by merely filing a petition with the appropriate number of signatures.

Section 8.12(l)(b), Stats., provides in part:

The committee shall place the names of all candidates whose candidacy is generally advocated or recognized in the national news media throughout the United States on the ballot, and may, in addition, place the names of other candidates on the ballot.
The committee shall have sole discretion to determine that a candidacy is generally advocated or recognized in the national news media throughout the United States.

(Emphasis added.) The wording of sec. 8.12(1)(b) first requires that the committee determine who are the candidates of the political parties represented on the committee. I conclude that the legislature's use of the word candidates in sec. 8.12(1)(b) was purposeful and that the word candidates does not mean all persons purporting to be candidates. Section 8.12 only requires that the committee place on the ballot the names of candidates who meet the judgment call by the committee that said candidates meet the national news media criteria essential to their having a place on the ballot. Section 8.12 does not require that the committee place on the ballot the names of all persons who are purporting to be candidates of a particular party.

*498There can be no clearer statement of the legislative purpose than the last sentence of sec. 8.12(l)(b), Stats.: "The committee shall have sole discretion to determine that a candidacy is generally advocated or recognized in the national news media throughout the United States" (emphasis added). The legislature has delegated to the committee the task of deciding, in its sole discretion, the names of the candidates whose candidacies are generally advocated or recognized in the national news media throughout the United States. Even a cursory reading of the minutes of the committee meeting reveals that they did just that.

Seven candidates were placed on the respective ballots by unanimous consent, and, after considerable discussion on the motion made by a Democrat to place David Duke's name on the Republican ballot through this method, the motion was defeated. That decision cannot be considered arbitrary or capricious or an abuse of discretion. The placement of David Duke's name on the ballot as a Republican was proposed and supported in strenuous argument only by the representatives of the Democratic party, and only representatives of the Democratic party recognized David Duke as being a Republican candidate.

The statute does not require placing a person's name on the ballot once some specified quantum of national recognition is reached. The statute leaves the questions of relevance and sufficiency of the evidence to the Selection Committee. The failure to nominate all of those individuals whose names were not placed on the ballot was a judgment call by a majority of the Selection Committee that those persons were not individuals "whose candidacy is generally advocated or recognized in the national news media throughout the United States . . .." The legislature granted broad discretion to this *499committee and specified by the offices the committee members hold that they would be knowledgeable about national and state political affairs.

Furthermore, the statute itself provides an alternative method whereby all of the persons granted relief today could have obtained ballot placement. Under sec. 8.12(l)(c),1 a person seeking the nomination by the national convention of either the Republican Party or the Democratic Party for the office of president, or any committee organized in Wisconsin on behalf of and with the consent of such person, may submit to the elections board a petition for ballot placement, with the requisite number of signatures. The petition procedure applies to a person seeking the nomination for the office of president. Thus, it is an alternative for obtaining placement on the primary ballot for those whom the Selection Committee has determined under sec. 8.12(1)(b), Stats., are not party candidates entitled to or worthy of ballot placement. In the absence of evidence that any of the persons granted relief today attempted to take advantage *500of the petition procedure, I would further decline to substitute this court's political judgment for that of the Selection Committee.

Had the majority used the proper standard of review, which is by certiorari rather than mandamus, it is clear that of necessity they would have found that the Presidential Preference Selection Committee acted properly in that (1) it kept within its jurisdiction; (2) it acted according to law; (3) its actions were not arbitrary, oppressive, or unreasonable and did in fact represent its judgment; and (4) the evidence was such that it might have reasonably made the determinations it made.

I therefore dissent. I am authorized to state that Justices William G. Callow and Donald W. Steinmetz join in this dissenting opinion.

Section 8.12(l)(c), Stats., provides as follows:

8.12 Presidential preference vote. (1) Selection of names for ballot. . ..
(c) No later than 5 p.m. on the 3rd Tuesday in February of each presidential election year, any person seeking the nomination by the national convention of a political party filing a certification under this subsection for the office of president of the United States, or any committee organized in this state on behalf of and with the consent of such person, may submit to the board a petition to have the person's name appear on the presidential preference ballot. The petition may be circulated no sooner than the last Tuesday in January of such year and shall be signed by a number of qualified electors equal in each congressional district to not less than 1,000 signatures nor more than 1,500 signatures. The form of the petition shall conform to the requirements of s.8.40. All signers on each separate petition paper shall reside in the same congressional district.