FILED 03-07-2018 CIRCUIT COUFIT DANE COUNTY, WI 20180V000519 STATE OF WISCONSIN CIRCUIT COURT DANE COUNTY ROBERT DALLAS NEWTON R., et al., Plaintiffs, V. Case No. 19 SCOTT WALKER, Defendant. RESPONSE TO PETITION FOR WRIT OF MANDAMUS Defendant Scott Walker, sued in his of?cial capacity as Governor of the State of Wisconsin, by and through his attorneys, Brad D. Schimel, Wisconsin Attorney General, and Steven C. Kilpatrick, Assistant Attorney General, without waiving any defenses as to the Court?s jurisdiction or competency, as ordered by this Court in its February 28, 2018, ?Order Granting Plaintiffs? Emergency Motion for Order Shortening Time for Defendant to Respond to Petition for Writ of Mandamus Pursuant to Wis. Stat. hereby (1) generally responds to Plaintiffs? Petition for Writ of Mandamus (?Petition?), and (2) answers the speci?c allegations in the Petition and assert defenses. GENERAL RESPONSE BACKGROUND I. Relevant factual allegations. On December 29, 2017, two legislative vacancies occurred in the 42nd assembly district and the 1st senate district when both Representative Keith Ripp and State Senator Frank Lasee, respectively, resigned. (Pet. 11 1, 11; Answer 1111 1, 11.) The general election for these two seats will be held on November 6, 2018. (Pet. 11 14; Answer 11 14.) See Wis. Stat. August 7, 2018, is the date of the primary for the general election. The terms of these two offices conclude at the end of the current 2017?2018 Legislative Biennial Session: January 7, 2019. Governor Walker does not plan to call special elections to ?ll these vacancies. (Pet. 11 12, 13; Answer 11 12, 13.) II. The law on ?lling vacancies in state senate and representative to the assembly. The law in Wisconsin on ?lling vacancies is found in the state constitution and statutes. The Governor and Legislature share the constitutional duties of ?lling vacancies in state of?ces. The state constitution provides that the Legislature may ?declare the cases in which any office shall be deemed vacant, and also the manner in ?lling the vacancy, where no provision is made for that purpose in this constitution.? Wis. Const., art. 10. The constitution also provides that ?[t]he governor shall issue writs of election to ?ll such vacancies as may occur in either house of the legislature.? Wis. Const., art. IV, 14. The Legislature exercised its constitutional authority and declared, through Wis. Stat. 8.50, upon a vacancy occurring the manner by which a special election must occur for state senator and representative to the assembly: Any vacancy in the of?ce of state senator or representative to the assembly occurring before the 2nd Tuesday in May in the year in which a regular election is held to ?ll that seat shall be ?lled as as possible by special election. However, any vacancy in the of?ce of state senator or representative to the assembly occurring after the close of the last regular ?oorperiod of the legislature held during his or her term shall be ?lled only if a special session or extraordinary ?oorperiod of the legislature is called or a veto review period is scheduled during the remainder of the term. The special election to ?ll the vacancy shall be ordered, if possible, so the new member may participate in the special session or ?oorperiod. Wis. Stat. The Wisconsin Legislature?s remaining schedule. The last general?business ?oorperiod of the Wisconsin Legislature ends on March 22, 2018, ?unless adjourned earlier.? A limited-business ?oorperiod is scheduled to take place April 17?19, 2018, and a veto review ?oorperiod is calendared for May 8?9, 2018. S.J. Res. 1, 2011?2018 Sees. (Wis. 2017), (Attachment 1.) IV. The law of mandamus. Mandamus is an extraordinary remedy. Lake Bluff Hows. Partners 0. City of South Milwaukee, 197 Wis. 2d 157, 170, 540 189 (1995). Mandamus is a writ used ?to compel a public of?cer to perform a duty of his of?ce presently due to be performed.? State ex rel. Marberry u. Macht, 2003 WI 79, 11 27, 262 Wis. 2d 720, 665 155. ?It is well settled that mandamus will not lie to compel the performance of an of?cial act when the of?cer?s duty is not clear and requires the exercise of judgment and discretion.? Beres v. New Berlin, 34 Wis. 2d 229, 231?32, 148 653 (1967). ?In order for a writ of mandamus to be issued, four prerequisites must be satis?ed: 1) a clear legal right; (2) a positive and plain duty; (3) substantial damages; and (4) no 3! other adequate remedy at law. Voces De La Frontera, Inc. 0. Clarke, 2017 WI 16, 1! 11, 373 Wis. 2d 348, 891 803 (citation omitted). Also, mandamus will only issue if ?no special reasons exist rendering a resort on his part to the remedy, under the circumstances, inequitable.? Vretenar v. Hebron, 144 Wis. 2d 655, 662, 424 714 (1988) (citation omitted). Therefore, mandamus ?is a discretionary writ in that it lies within the sound discretion of the trial court to either grant or deny.? Id. at 661. Because mandamus is a remedy equitable in nature, ?[t]he rights of the public and of third persons may be considered.? Keane v. St. Francis Hosp, 186 Wis. 2d 637, 658, 522 517, (Ct. App. 1994) (quoting State ex rel. Sullivan 0. Hauerwas, 254 Wis. 336, 340, 36 427 (1949)). In addition,- a court should consider ?the urgency of the situation, the equities of the parties, the e?cacy or futility of the writ if issued, the public policy or interests that may be involved and the question whether, if issued, the writ will promote substantial justice or on the contrary cause injustice, hardship or oppression.? Sterlinske v. S'ch. Dist. of Bruce, Wis, 211 Wis. 2d 608, 613, 565 273 (Ct. App. 1997) (quoting Law Enf?t Standards Bd. v. Lyndon Station, 101 Wis. 2d 472, 494, 305 89 (1981)). Consequently, ?[t]here can be occasions where a court concludes that the four legal prerequisites for mandamus have been satis?ed and yet, on equitable grounds, decides that mandamus should be denied.? Keane, 186 Wis. 2d at 658. ARGUMENT I. This Court must deny Plaintiffs? petition for writ of mandamus because Plaintiffs cannot meet all the requirements for a writ of mandamus to issue. Because all four prerequisites of mandamus need to be met for a writ to issue, if Plaintiffs cannot meet one of them, their claim?and this action?fails. Plaintiffs? claim fails here because they cannot show that Governor Walker has a positive and plain duty to issue a call for special elections or that they have a clear legal right to vote for state senator and representative to the assembly in special elections. And regardless of whether they can meet those two requirements, they cannot show that they will suffer substantial damages if the Court does not order Governor Walker to call special elections. A. Plaintiffs will not suffer substantial damages if the Court does not order Governor Walker to perform any supposed positive and plain duty to call special elections. To obtain mandamus, Plainti?'s? Petition must show that they will be substantially damaged by nonperformance of the of?cer?s positive and plain duty. Vretenar, 144 Wis. 2d at 662. Here, it does not. Because of the dates scheduled on the 2017?2018 Biennial Legislative Session Calendar, Plaintiffs would not be represented by a state senator and representative to the assembly in time to cast any votes, even if special elections were called today. A special election may be held only after allowing time for ?ling nomination papers, holding any primaries, preparing ballots, among other required tasks. These events cannot be accomplished before the Legislature goes out of session. Wisconsin Stat. establishes a policy for a special election to ?ll a vacancy by a state senator and representative to the assembly only when any newly-elected member can participate in the legislative business of voting on legislation. The ?rst sentence in Wis. Stat. states that if a vacancy occurs after the 2nd Tuesday in May in the year of a regular election, no special election needs to be called to ?ll that vacancy. Even if a vacancy occurs before that 2nd Tuesday in May, no special election is mandated if the regular ?oorperiod of the Legislature is over and no special session or extraordinary ?oorperiod ?is called? or if no ?veto review period is scheduled during the remainder of the term.? Wis. Stat. And ?nally, the last sentence of Wis. Stat. clearly con?rms that the purpose of calling and conducting a special election is for the newly-elected legislators to cast votes: ?The special election to ?ll the vacancy shall be ordered, if possible, so the new member may participate in the special session or ?oorperiod.? Thus, under Wis. Stat. the Legislature has acknowledged and accepted that there will be times when Wisconsin citizens may be unrepresented in the Legislature. In consideration of the law and speci?c circumstances here, if at the conclusion of the March 22 hearing the Court were to order Governor Walker to call special elections immediately, the earliest special election primaries could take place would be Tuesday, May 8, with the Special elections on Tuesday, June 5. But, by that time, any newly-elected members would have no votes to cast on behalf of the people of their districts. According to the 2017?20 18 Legislative Session Schedule, the last general-business ?oorperiod ends on March 22, 2018, ?unless adjourned earlier.? And a limited-business ?oorperiod is scheduled to take place April 17?19, 2018, and a veto review ?oorperiod is calendared for May 8?9, 2018. SJ. Res. 1, 2017?2018 Sess. (Wis. 2017), (Attachment 1.) Filling the senate and assembly vacancies by special election even at the earliest date would not allow new members to participate in any votes. Thus, assuming for the moment Governor Walker has a positive and plain duty to call special elections, Plainti?'s cannot suffer substantial damages if Governor Walker is not forced to call special elections, because the consequence of special elections would not result in representatives casting votes on their behalf.1 Plaintiffs argue that special elections should take place sooner. Plaintiffs seek ?a writ of mandamus ordering Governor Walker to immediately issue writs of election that schedule special elections for a date no later than ?ve weeks following the Governor?s issuance 'of the writs.? (Pet. 10 2 (emphasis added).) But special elections occurring within ?ve weeks are not lawful. The Legislature has limited the Governor as to when he may issue an order for a special election. Wisconsin Stat. 8.50(2) sets the date of the special election. ?[T]he date for the special election shall be not less than 62 nor more 1 Plaintiffs also would not be substantially damaged because they have the ability to obtain assistance from the of?ces of Rep. Ripp and Senator Lasee. Deepite these of?ces being vacant, legislative staff are still employed to provide constituent services. See Wis. State Seator Frank Lasee, (last visited Mar. 7, 2018). and Wis. State Representative Keith Ripp, (last visited Mar. 7, 2018). 8 than 77 days from the date of the [Governor?s] order.? Wis. Stat. Hence, by state law a special election cannot occur within ?ve weeks of the Governor?s call. Because special elections would not seat a representative to the assembly and state senator in time to participate in the legislative business of voting on bills, Plaintiffs would not be substantially damaged by the nonperformance of any supposed duty of Governor Walker to call for special elections. On this basis, this Court can dismiss Plaintiffs? Petition without further inquiry. B. Governor Walker has no positive and plain duty to call special elections to fill the vacancies at issue. Plainti?'s? Petition fails on a separate, independent ground. Governor Walker has no positive and plain duty to call special elections under the circumstances here. Mandamus cannot be used to force Governor Walker to take action that is purely discretionary. Under Wis. Stat. the Governor has a positive and plain duty to call a special election only when a vacancy occurs in the year of a general election from January 1 until the 2nd Tuesday in May. Because the vacancies here did not occur in that year, Governor Walker has no positive and plain duty to call special elections. On the contrary, he has discretion whether or not to call them and decided against it. Mandamus, therefore, cannot issue. ?[S]tatutory interpretation ?begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop it inquiry.?? State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, 1] 45, 271 Wis. 2d 633, 663, 681 110 (quoting Seider v. O?Connell, 236 Wis. 2d 211, 232, 612 659 (2000)). ?[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 results.? Id. 1] 46. The text of Wis. Stat. 8.50(4) and the constitution demonstrate that Governor Walker possesses no positive and plain duty to call special elections to ?ll the vacancies in the two districts at issue here. In the ?rst sentence of Wis. Stat. the phrase ?in the year in which a regular election is held to ?ll that seat? means the year of the regular election for senate and assembly. That is, this phrase means the even-numbered. years, because that is when regular elections for state senate and representative to the assembly take place in Wisconsin. See Wis. Const., art. IV 4; Wis. Const., art. IV, 5. And this phrase modi?es the words ?vacancy . . . occurring.? Thus, the sentence?s focus is on the vacancy and when that vacancy occurs?the year of the regular election for senate and assembly. This time period is further limited by the phrase ?before the 2nd Tuesday in May.? As a result, under Wis. Stat. the vacancy at issue is for a very limited period of time-? 10 the weeks of the regular election year until the 2nd Tuesday in May. Accordingly, if a vacancy occurs for state senator or representative to the assembly from January 1 until the 2nd Tuesday in May, the vacancy ?shall be ?lled as as possible.? Thus, under the language of the statute, the Governor has a positive and plain duty to call a special election ?as as possible? only when a vacancy occurs during that time period. The corollary is that the Governor has no positive and plain duty to call for a special election at all when a vacancy occurs not during that time period. This interpretation of the ?rst sentence of Wis. Stat. makes sense because the year of the regular election for state senator and representative to the assembly?occurring in the fall?also contains the ?nal legislative working sessions at the end of the biennial legislative session?? occurring in the spring. The Legislature historically holds its last general- business ?oorperiod?when the legislators will cast votes?in the spring of the last calendar year of the biennial legislative session. Thus, knowing that it takes at a minimum approximately ten weeks to call, conduct, and tally the votes from a special election, the Legislature determined that a vacancy occurring before the 2nd Tuesday in May?in the year of the regular election? was to be ?lled by a call for special election ?as as possible? so that the new member could be seated in time to vote on legislation. If the vacancy were to occur on or after that 2nd Tuesday in May, however, the Legislature 11 determined it too late for any new member to participate in any meaningful legislative business, so it did not give the Governor a positive and plain duty to call a special election at all, let alone a duty to call one ?as as possible.? The second sentence of Wis. Stat. supports this interpretation by recognizing that the Governor has no duty to call a special election, even if a vacancy occurs from January 1 until the 2nd Tuesday in May, if that vacancy occurs after ?the close of the last regular ?oorperiod of the legislature held during his or her term? or ?a veto review period scheduled during the remainder of the term.? Again, the Legislature made a policy determination that no special election is necessary if no legislative business is to take place. Kalal, 271 Wis. 2d 633, 1[ 44 (?Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We assume that the legislature?s intent is expressed in the statutory language?). Pursuant to the text of Wis. Stat. 850(4) and the state constitution, it is the positive and plan duty of the Governor to call a special election only when a legislative vacancy occurs from January 1 until the 2nd Tuesday in May in the year of a general election. It follows that Wis. Stat. does not confer upon the Governor a positive and plain duty to issue a writ calling for a special election when a legislative vacancy occurs at any other time. 12 Here, two legislative vacancies occurred on December 29, 2017, and the regular election for these two of?ces is held in 2018. Because these vacancies did not occur in the year of the regular election for these of?ces, Governor Walker had no positive and plain duty to call, as as possible, Special elections to ?ll the vacancies. Plaintiffs? Petition, therefore, must be denied. Plaintiffs argue that Wis. Stat. means that if a vacancy occurs any time before the 2nd Tuesday of May, the Governor has a positive and plain duty to calla special election. On the contrary, Governor Walker has discretion whether to call for special elections when a vacancy occurs outside of the period from January 1 until the 2nd Tuesday in May in the year of the regular election. Wisconsin Stat. reads in full: ?When the governor so directs, a special election shall be held to ?ll any vacancy not provided for in this section. This paragraph does not apply to judicial of?ces.? (Emphasis added.) Because the vacancies for state senator and representative to the assembly here did not occur from January 1 until the 2nd Tuesday in May, 2018, they were not ?provided for in [Wis Stat. Therefore, Governor Walker had the discretion whether or not to call special elections. is an abuse of discretion for a court to compel action through mandamus when the officer?s duty is not clear and unequivocal and requires the exercise of the of?cer?s discretion.? Menzl v. City of Milwaukee, 13 32 Wis. 2d 266, 276, 145 198 (1966) (emphasis added). Moreover, the Wisconsin Supreme Court has held that the authority and discretion given by the Legislature to the of?cers charged with calling special elections must be respected: ?[T]here must necessarily rest in administrative of?cers charged with the duty of giving the electors timely notice of such an election the onus of determining whether a particular situation is Within the call of the statute. That he must in many instances determine such questions at his peril in no wise alters or lessens his duty or responsibility.? Doberstein v. Dahl, 181 Wis. 491, 195 NW. 416, 418 (1923). Here, because the vacancies here occurred on December 29, 2017, by the time the results of any special elections would be conclusive?taking at a minimum approximately ten weeks?the last legislative business would be over. Even if this Court were to disagree with Governor Walker?s exercise of discretion in not calling special elections, it cannot force him to make a different decision through mandamus. Recent examples illustrate Governor Walker?s reasoning. Governor Walker exercised the discretion granted him by the Legislature and called special elections after three vacancies occurred in 2017. When Representative Robert Gannon died on October 3, 2017, Governor Walker called for a special 14 election to be held on January 16, 2018.2 Also, after being elected Mayor of Racine, Representative Cory Mason issued his resignation on November 7, 2017, and Governor Walker issued a call for a special election also to be held January 16, 2018.3 In both instances, there was suf?cient time to permit special elections to take place in January 2018, thereby allowing new members to be seated for the end of the 2017?2018 Biennial Legislative Session and cast votes in the ?nal general-business ?oorperiod in March. Further, when State Senator Sheila Harsdorf resigned on November 10, 2017, to become Secretary of the Department of Agriculture, Trade and Consumer Protection, Governor Walker exercised his discretion by calling for a special election also to be held on January 16, 2018. In this case, Senator Harsdorfs term continued until the ?rst Monday in January, 2021.4 It was, therefore, quite appropriate for Governor Walker to call a Special election to elect a new state senator to serve the remaining three years of that term. In all of these instances, Governor 2 See Of?ce of the Governor, Executive Order #262, Wis. Elections Commission (Nov. 1, 2017), df_7 1 194.13 df, (Attachment 2.) 3 See Of?ce of the Governor, Executive Order 264, Wis. Elections Commission (Nov. 7, 2017), e1ections.wi. gov/ site s/ default/?les/page/ eo_2 y_district_12029.pdf, (Attachment 3.) 4 See Of?ce of the Governor, Executive Order 265, Wis. Elections Commission (Nov. 10, 2017), district _pd_89998.pdf, (Attachment 4.) 15 Walker exercised discretion and called special elections to ful?ll the purpose of Wis. Stat. 850(4) give the people of the districts legislative representation in the waning, yet important, days of the biennial legislative session when votes would be cast. The same cannot be said of the two vacancies at issue here. mm Because Plaintiffs cannot show that Governor Walker has a positive and plain duty to issue a call for special elections for the 42nd assembly and senate districts, and in fact he exercised his discretion in not calling for the elections, their petition for writ of mandamus must be denied. C. Plaintiffs? have no clear legal right to elect new representatives in special elections. It follows that because Wis. Stat. does not confer a positive and plain duty upon Governor Walker to call special elections under the facts of this case, neither do Plaintiffs have a clear legal right to vote for representative to the assembly and state senator in the 42nd and 1st districts, respectively, to ?ll the current vacancies. As explained above, the Legislature had determined that the people of Wisconsin in legislative districts where 16 vacancies exist only have the right to vote in special elections in speci?c circumstances and none are applicable here.5 mm Plaintiffs cannot meet at least one of the four legal requirements of mandamus. As a result, they are not entitled to a writ ordering Governor Walker to call special elections. Their Petition must be denied and their action must be dismissed with prejudice. II. This Court should exercise its own discretion, balance the equities, and deny Plaintiffs? petition for writ of mandamus. Mandamus ?is a discretionary writ in that it lies within the sound discretion of the trial court to either grant or deny.? Vretenar, 144 Wis. 2d at 661. Mandamus will only issue if ?no special reasons exist rendering a resort on his part to the remedy, under the circumstances, inequitable.? Id. at 662. (citation omitted). A court should consider ?the urgency of the situation, the equities of the parties, the efficacy or futility of the writ if issued, [and] the public policy or interests that may be involved . . . Sterlinske, 211 Wis. 2d at 613 (citation omitted). Consequently, ?[t]here can be occasions where a court 5 Plainti?'s cite case law holding that they have constitutional right to vote. (Pet. 11 18.) While this is true, Plaintiffs? constitutional rights to vote are not being infringed. The issue before this Court is whether Governor Walker must issue writs calling for special elections; it is not whether Plaintiffs have the right in any election. 17 concludes that the four legal prerequisites for mandamus have been satis?ed and yet, on equitable grounds, decides that mandamus should be denied.? Keane, 186 Wis. 2d at 658. Here, even if this Court ?nds that Plaintiffs meet the four mandamus criteria, this is an occasion where it may still deny the Petition. One consideration for this Court in issuing a writ of mandamus is the futility of the writ if issued. Governor Walker directs the Court to its argument above that Plaintiffs will not suffer substantial damages if the writ is not issued. The fact that holding special elections would only result in new members of the Legislature taking of?ce not to participate in voting on legislation in the remainder of the terms illustrates the futility in issuing a writ of mandamus. Another consideration is the large number of elections in which individuals would have to run within a short period of time. The general election will take place on November 6, 2018. And August 7 2018, is the date of the general election primary. When the special primaries and special elections are counted, assuming that candidates will run for both the remainder of the terms and the upcoming terms, at least two individuals will likely endure four elections in just over a few months? time. Another consideration is the expense to the local communities in the 42nd assembly and 1st senate districts, where the special elections would be 18 held. Keane, 186 Wis. 2d at 658 (consideration of interests of the public is proper). While there is no concrete evidence at this time as to exactly how much money it will cost taxpayers to hold special elections, including primary special elections, a review of the cost of past elections may provide a good estimate. Known costs to the local counties and municipalities are the printing of ballots, election notices, polling lists, voting machines, rental of polling places, and the wages and salaries of poll workers. See, Wis. Stat. 5.68. Costs reports exist With the Wisconsin Elections Commission for recent primary, general, and recall elections. These include costs on a statewide basis and also at the local county and municipal level.6 But because the 42nd assembly district and 1st senate district span multiple counties (and in some cases only parts of counties) and municipalities, and there is no historical data concerning any special elections in those places, providing the Court with a good?faith, cost estimate of any special elections is not possible at this time. However, the cost of two special primaries and two special elections in these aforementioned districts would certainly be substantial. 5 See 2016 General Election Cost Report, which includes these costs, broken down by counties and municipalities. 2016? General Election Cost Report, Wis. Elections Commission, (follow 2016 General Election Cost Report 2017-08-09.x1sx? hyperlink) (last visited Mar. 7, 2018). Because once issue has joined a mandamus action continues as any other civil action, see Keane, 186 Wis. 2d at 644 n.3, Governor Walker may submit evidence prior to or at the scheduled March 22 hearing concerning costs and other issues. 19 In sum, given the signi?cant costs to local taxpayers, the number of elections for which candidates must run in a few months? time, the short time period persons elected would hold of?ce, and the complete lack of votes scheduled to be cast by any new members of the Legislature in the remaining months of the terms, the equities here compel this Court to exercise its discretion and deny Plaintiffs? petition for writ of mandamus. This can occur even if the Court holds that Plaintiffs meet the four mandamus requirements. If a writ of mandamus is ordered, it still must respect Governor Walker?s discretion in determining when to call the special elections. In the event this Court decides that a writ of mandamus against Governor Walker must issue, the writ as sought by Plaintiffs is not prOper and must be rejected. Under the law of mandamus, while a person may be ordered to exercise discretion, he cannot be compelled to exercise it in a particular manner. Put another way, mandamus will not determine how the discretion is exercised. See State ex rel. Drew 0. Shaughnessy, 212 Wis. 322, 249 NW. 522, 527 (1933). So Plaintiffs are not entitled ?to a writ of mandamus ordering Governor Walker to immediately issue writs of schedule special elections for a date no later than ?ve weeks following the Governor?s issuance of the writs.? (Pet. 10 11 2.) The Court cannot order him to call special elections ?immediately,? because Governor Walker has no positive and plain duty to do 20 so. At most, this Court can order Governor Walker to call special elections ?as as possible.? Accordingly, if ordered to call special elections, Governor Walker would most likely call them to be held on the date of the general election in the fail. This decision is based, in part, on the Legislature already approving the joining of these two types of elections. See Wis. Stat. 8.50. Holding special elections on the date the general election is already scheduled, November 6, 2018, would be cost effective and time ef?cient. Moreover, it would not require the candidates to run for up to four elections two primaries and two regular elections) over the span of just a few months, as proposed by Plaintiffs. If the Court decides that a writ of mandamus must issue against Governor Walker, it can only order him to issue a call for special elections ?as as possible.? Due to this language in Wis. Stat. Governor Walker possesses discretion in deciding when to order the special elections. And he would choose to exercise that discretion by calling for special elections to occur on the date of the general election. A writ of mandamus cannot attack that exercise of discretion. IV. Plaintiffs are not entitled to an order of declaration. In addition to the writ of mandamus, Plainti?'s seek an order declaring that Governor Walker is in Violation of Wis. Stat. (Pet. 10.) They are not entitled to such an order in this mandamus action. 21 ?Mandamus is a remedy only to be applied in extraordinary cases where there is no other adequate remedy.? State ex rel. Burg 0. Milwaukee Med. College, 128 Wis. 7, 12, 106 NW. 116 (1906) (emphasis added). ?If the applicant has an adequate remedy by another avenue, the writ will not be awarded.? Moore 0. Stahowiak, 212 Wis. 2d 744, 747, 569 711 (Ct. App. 1997). Here, Plaintiffs brought this civil action as a mandamus action under Wis. Stat. ch. 788. They seek to compel a state of?cer, here the Governor, to perform a duty. Thus, a mandamus action was the proper type of action to bring. See Morrissette v. De Zonia, 63 Wis. 2d 429, 432, 217 377 (1974) writ of mandamus lies to compel public officers to perform their prescribed statutory duties?). Plaintiffs did not bring the action under the Uniform Declaratory Judgments Act, Wis. Stat. 806.0400), and there is no reason for this Court to construe the Petition that way. Therefore, the only available legal remedy in this action for mandamus, as Plainti?s themselves allege (Pet. 2), is the writ itself. A declaration is simply improper. It is also unnecessary. For a writ of mandamus to issue, no court needs to issue a declaration that a defendant is in violation of a statute. That is evident by the law of mandamus itself?a writ of mandamus issues only when there is no other adequate remedy. Burg, 128 Wis. at 12. Put another way, if Plaintiffs are 22 entitled to a writ of mandamus, they are not entitled to a declaration as a matter of law. Thus, because Plaintiffs bring a mandamus against Governor Walker? to direct him to issue calls for two special elections as as possible? they are not entitled to any order for declaration. Plaintiffs? request for an order declaring that Governor Walker is in violation of Wis. Stat. is improper and unnecessary. V. Plaintiffs are not entitled to attorneys? fees. Plaintiffs seek attorneys? fees in this Suit and cite Wis. Stat. 783.04 in support. (Pet. 10.) Neither the text of this statute nor case law supports their request. ?Under the well-established American Rule, parties to litigation are generally responsible for their own attorney?s fees unless recovery is expressly allowed by either contract or statute, or when recovery results from third-party litigation.? DeChant v. Monarch Life Ins. Co., 200 Wis. 2d 559, 571, 547 592 (1996). ?In the absence of statutory authority . . . Wisconsin courts have strictly adhered to the American Rule.? Id. Here, Wis. Stat. 783.04 reads in full: ?If judgment be for the plaintiff, the plaintiff shall recover damages and costs.? On its face, the relevant statute does not mention attorney?s fees. Thus, the statute does not make an exception 23 to the American Rule. Accordingly, Plaintiffs are not entitled to attorneys? fees under a plain reading of the statute. Further, if Plaintiffs were to contend that attorneys? fees fall under the statute?s reference to ?costs,? they would be mistaken. The Wisconsin Supreme Court, in Kremers-Urban Co. 0. Am. Emp?rs Ins. Co., 119 Wis. 2d 722, 351 156 (1984), rejected a similar argument. In Kremers-Urban Co., the successful party sought attorney?s fees under a subsection of the Uniform Declaratory Judgments Act, Wis. Stat. 806.0400), which only made reference to the recovery of ?costs.? Id. at 746. The court, recognizing that the Legislature was aware of the American Rule when drafting the statute, held that there is a distinction between costs and attorney fees, and refused to allow recovery of attorney fees. Id. at 7 46?47 . Similarly here, Wis. Stat. 783.04 references ?costs,? not ?attorney fees.? Kremers-Urban therefore precludes recovery of attorneys? fees for Plaintiffs, too. 24 ANSWER PARTIES 1. In answering sentences 1 and 2 of paragraph 1 of the Petition, Defendant DENIES information suf?cient to form a belief concerning the allegations contained therein. As to sentences 3 and 4, Defendant ADMITS. As to sentences 5, 6 and 7, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. 2. In answering sentences 1 and 2 of paragraph 2 of the Petition, Defendant DENIES information suf?cient to form a belief concerning the allegations contained therein. As to sentences 3 and 4, Defendant ADMITS. As to sentences 5, 6 and 7, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. 3. In answering sentence 1 and 2 of paragraph 3 of the Petition, Defendant DENIES information suf?cient to form a belief concerning the allegations contained therein. As to sentences 3 and 4, Defendant ADMITS. As to sentences 5, 6 and 7, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. 4. In answering sentence 1 and 2 of paragraph 4 of the Petition, Defendant DENIES information suf?cient to form a belief concerning the allegations contained therein. As to sentences 3 and 4, Defendant ADMITS. As to 25 sentences 5, 6 and 7, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. 5. In answering sentences 1 and 2 of paragraph 5 of the Petition, Defendant DENIES information suf?cient to form a belief concerning the allegations contained therein. As to sentences 3 and 4, Defendant ADMITS. As to sentences 5, 6 and 7, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. 6. In answering sentences I and 2 of paragraph 6 of the Petition, Defendant DENIES information suf?cient to form a belief concerning the allegations contained therein. As to sentences 3 and 4, Defendant ADMITS. As to sentences 5, 6 and 7, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. 7. In answering sentences 1 and 2 of paragraph 7 of the Petition, Defendant DENIES information suf?cient to form a belief concerning the allegations contained therein. As to sentences 3 and 4, Defendant ADMITS. As to sentences 5, 6 and 7, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. 8. In answering sentences 1 and 2 of paragraph 8 of the Petition, Defendant DENIES information suf?cient to form a belief concerning the allegations contained therein. As to sentences 3 and 4, Defendant ADMITS. As to 26 sentences 5, 6 and 7, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. 9. In answering sentence 1 of paragraph 9 of the Petition, Defendant ADMITS. As to the remaining sentences, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. JURISDICTION VENUE 10. In answering paragraph 10 of the Petition, Defendant ADMITS. FACTUAL ALLEGATIONS 11. In answering paragraph 11 of the Petition, Defendant ADMITS. 12. In answering sentences 1 and 2 of paragraph 12 of the Petition, Defendant ADMITS. As to sentence 3 of paragraph 12, Defendant DENIES. As to sentence, 4, Defendant ADMITS. 13. In answering paragraph 13 of the Petition, Defendant ADMITS. 14. In answering sentence 1 of paragraph 14 of the Petition, Defendant ADMITS. As to sentence 2, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. As to sentence 3, Defendant ADMITS. As to sentence 4, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. 15. In answering paragraph 15, Defendant DENIES. 27 CLAIM: VIOLATION OF WIS. STAT. 16. In answering paragraph 16, Defendant repeats and incorporates his responses in paragraphs 1 through 15 above as if fully alleged herein. 17. In answering paragraph 17, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. 18. In answering sentence 1 of paragraph 18, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. 19. In answering the first clause of sentence 1 of paragraph 19 of the Petition, as to the allegation regarding where some of the Plaintiffs? live, Defendant DENIES information suf?cient to form a belief concerning the allegations contained therein. As to the second clause of that sentence, Defendant DENIES. As to sentence 2, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. As to sentence 3, as to the allegation regarding where the remaining Plaintiffs? live, Defendant DENIES information suf?cient to form a belief concerning the allegations contained therein. As to the second clause of sentence 3, Defendant DENIES. I 20. In answering paragraph 20 of the Petition, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. 21. In answering sentences 1 and 2 of paragraph 21 of the Petition, Defendant ALLEGES that the allegations contain legal conclusions to which 28 no response is required. As to sentence 3, Defendant ADMITS. As to sentence 4, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. 22. In answering sentence 1 of paragraph 22 of the Petition, Defendant ADMITS. As to the remaining sentences, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. 23. In answering paragraph 23 of the Petition, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. 24. In answering sentence 1 of paragraph 24 of the Petition, Defendant ADMITS that legislative special sessions occur in Wisconsin and are convened to consider important topics and DENIES information suf?cient to form a belief concerning the remaining allegations contained therein. As to sentences 2 and 3, Defendant ADMITS. As to sentence 4, Defendant DENIES. As to sentence 5, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required 25. In answering sentences 1 and 2 of paragraph 25 of the Petition, Defendant ADMITS. As to sentence 4, Defendant ALLEGES that the allegations contain legal conclusions to which no response is required. As to sentence 5, Defendant DENIES. 26. Defendant DENIES all allegations to which he has not speci?cally denied in the above paragraphs. 29 RELIEF REQUESTED 27. Defendant ALLEGES that Plaintiffs are not entitled to any of the relief they seek. was 1. Plaintiffs must prove that they have standing. 2. Plaintiffs failed to timely or suf?ciently serve summons or process. 3. Plaintiffs fail to state a claim upon which relief may be granted. 4. Defendant reserves the right to amend this Answer to assert additional defenses if and as discovery proceeds. Dated this 7th day of March, 2018. Respectfully submitted, BRAD D. SCHIMEL Wisconsin Attorney General Electronically signed by: s/ STEVEN C. KILPATRICK Assistant Attorney General State Bar #1025452 Attorneys for Defendant Scott Walker in his of?cial capacity as Governor of the State of Wisconsin Wisconsin Department of Justice Post Of?ce Box 7857 Madison, Wisconsin 53707-7857 (608) 266-1792 (608) 267?2223 (Fax) kilp atricksc@doj .state.wi.us 30