Case 2019CV000084 Document 100 Filed 02-22-2019 Page 1 of 13 FILED 02-22-2019 CIRCUIT COURT DANE COUNTY, WI 2019CV000084 STATE OF WISCONSIN CIRCUIT COURT DANE COTINTY Branch 9 THE LEAGUE OF WOMEN VOTERS OF WISCONSIN, et al., Plaintiffs, Case No. l9-CV-84 Case Code 30701 &,30704 DEAN KNUDSON, et al., Defendants, THE ELECTIONS COMMISSION DEFENDANTS' BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS INTRODUCTION The plaintiffs flrled suit seeking a declaration that the laws enacted in the extraordinary session of December 2018 are unconstitutional and have sought to enjoin the implementation of those laws. The amended complaint spans 33 pages and makes numerous allegations regarding the passage of 2017 Wisconsin Acts 368, 369 and 370 as well as the confirmation of 82 nominees to various positions throughout state government. The amended complaint identifies the Elections Commission Defendants in paragraphs 8- 12 and then never mentions these defendants again. There are no allegations that the Elections Commission Defendants took any unlawful action or failed to take an action they were required to take. There is no prayer for relief against any of these defendants. The complaint is fatally Case 2019CV000084 Document 100 Filed 02-22-2019 Page 2 of 13 defective as it pertains to the Election Commission Defendants and they should be dismissed from this lawsuit. I. THB AMENDED COMPLAINT FAILS TO STATE A CLAIM AGAINST THB ELECTIONS COMMISSION DEFENDANTS Sec. 802.02 stats provides: (1) Contents of pleadings. A pleading or supplemental pleading that sets forth a claim for relief, whether an original or amended claim, counterclaim, cross claim or 3rd-party claim, shall contain all of the following: (a) A short and plain statement of the claim, identifying the transaction or oscuffence or series of transactions or occurrences out of which the claim arises and showing that the pleader is entitled to relief. (b) A demand for judgment for the relief the pleader seeks. Once the complaint is filed, the defendants are required to either answer the complaint, seek a more definite statement or move to dismiss the complaint. Sec. 802.06 stats provides: (a) Every defense, in law or fact, except the defense of improper venue, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or 3rd-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: 1. Lack of capacity to sue or be sued. 2. Lack ofjurisdiction over the subject matter. 3. Lack ofjurisdiction over the person or property. 4. Insufficiency of summons or process. 5. Untimeliness or insufficiency of service of summons or process. 6. Failure to state a claim upon which relief can be granted. 7. Failure to join a party under s. 803.03. 8. Res judicata. 9. Statute of limitations. 10. Another action pending between the same parties for the same cause. 2 Case 2019CV000084 In this Document 100 Filed 02-22-2019 case, the Elections Commission Defendants Page 3 of 13 rely on sec. 802.06 (2) (aX6) as the basis of their motion. When presented with a motion under sec. 802.06 (2) (a)(6), the court is to apply the analysis set forth in Data Key Partners v. Permira Advisers LLC, 2014 WI 86 Par, 19, 356 Wis. 2d 665. The courl held: A motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint." John Doe 1 v. Archdiocese of Milwaukee, 2007 WI 95, 11 12, 303 Wis.2d 34,734 N.W.2d 827 (quoting BBB Doe v. Archdiocese of Milwaukee,21l Wis.2d 312,331, 565 N.W.2d 94 (1997)). Upon a motion to dismiss, we accept as true all facts well-pleaded in the complaint and the reasonable inferences therefrom. Kaloti Enters., Inc. v. KelloeLsaþstÇo.,2005 WI 1l I , fl 1 l, 283 Wis.2d 555, 699 N.W.2d 205. However, a court cannot add facts in the process of construing a complaint. John Doe 67C,284 Wis.2d 307,n 19,700 N.W.2d 180, Furthermore, legal conclusions stated in the complaint are not accepted as true, and they are insufficient to enable a complaint to withstand a motion to dismiss. Id. In Wils on v. Contl. Ins. Companies, 27 4 N.W.2d 67 9, 683 (Wis. 197 9), the court stated the standard as follows: Thus, we apply to this case the following standard: that a motion to dismiss under sec. 802.06(2)(f) usually will be granted only when it is quite clear that under no conditions can the plaintiff recover. Wulf v. Rebbun,25 Wis.2d 499,l3l N.W.2d 303 (1964) recites in the following language the standard applied to the former demurrer practice: "While the complaint must be liberally construed it must still state a cause of action and must fairly inform the opposite party of what he is called upon to meet by alleging specific acts. In this case, there are no allegations against any of the Elections Commission Defendants. There is no claim for relief and the complaint only mentions the Elections Commission Defendants in the paragraphs identifying them. There are allegations in the complaint that recite harm to the plaintiffs that relate to elections, but none of the allegations state that the Elections Commission Defendants had any role in causing these harms or have any power to alleviate the alleged harms. a J Case 2019CV000084 Document 100 The complaint's failure Filed 02-22-2019 Page 4 of 13 to identify any wrongdoing by the Elections Commission Defendants forms a sufficient basis for the dismissal of the Elections Commission Defendants. However, as shown below, the Elections Commission Defendants are not necessary parties and the alleged harms related to the election laws are the subject of a separate action. II THB ELECTION COMMISSION DEFENDANTS ARE NOT PROPER PARTIES TO THIS ACTION. The Wisconsin Elections Commission, ("Commission"), its individual members and administrator, have no power or authority to vote on or enact legislation. They cannot be a proper party to this action. The Commission is responsible for administering Wisconsin's elections laws, except campaign frnancing laws. Wis. Stats. S 5.05(1). The Commission is empowered to investigate election law violations, file lawsuits, issue orders and promulgate administrative rules implementing Wisconsin's election laws. The Commission has no power to enact legislation of the sort complained about in this lawsuit. The inappropriateness of suing Elections Commission offrcials is illustrated by the fact that the Commission itself is bound by and unable to challenge or litigate the outcome of this case. The Commission is a creature of the statutes creating it and granting its powers. The Commission does not have the statutory authority to initiate this cause of action or challenge its outcome. Srars. $ 5.05(5t). When faced with a Ilis. binding state or federal court decision relating to election law the Cornmission's authority is confrned to implementing the decision, issuing updated guidance to local election officials and voters, making formal advisory opinions, commencing rule-making or requesting an opinion from the Attorney General on the "applicability of the courl decision." 4 þ. Case 2019CV000084 Document 100 Filed 02-22-2019 Page 5 of 13 Notably missing from the list of the Commission's available options is litigation or appeal of court decisions. The plaintiffs named the individual commissioners and the administrator of the Elections Commission. No commissioner may act individually to carry out any Commission function. Any action by the Commission, except an action relating to its own internal procedures, requires a two- thirds vote of the Commission. Wis. Srars. $ 5.05(1e). Likewise, the Comrnission's administrator, even as the chief elections officer in the state, is not statutorily empowered to pass legislation related to election law. Finally, while the Plaintiffs claim that they are damaged by provisions in the Acts passed last December, the legal issue raised does not concern the substance of the election laws referenced in the amended complaint but rather the process by which those laws were enacted. The Elections Commission cannot and does not take a position in regard to that issue. The Elections Commission Defendants will be bound by any decision the court makes which impacts the validity of the election laws referenced in the amended complaint, and thereafter issue whatever guidance may be appropriate pursuant to $ 5.05(5Ð. ilI. THERE IS NO JUSTICIABLE CONTROVERSY BETWEEN THE PLAINTIFFS AND THE DEFBNDANTS. A trial court can exercise discretion to decide an action seeking declaratory relief, such this case, only when there is a as justiciable controversy.l4/isconsin Education Association Council v. Wisconsin Elections Board, 2000 WI App 89, n 9,234 Wis. 2d 349, 610 N.W.2d 108. The following standards govern the existence of a justiciable controversy: 5 Case 2019CV000084 l) Document 100 Filed 02-22-2019 Page 6 of 13 Whether a claim of right is asserted against one who has an interest in contesting it; Id.ln 2) Whether the parties have adverse interests; 3) V/hether the parties seeking relief have a legally protectable interest; and 4) Whether the issue in controversy is ripe for judicial determination. the present case, standards I ,2 and 4 are absent as to the Elections Commission Defendants. As discussed above, the V/isconsin Elections Commission did not promulgate the legislation at issue and its officials take no position regarding the scope of the legislature's authority to enact these laws. Moreover, the sole Act at issue which impacts election laws is either currently enjoined by court order or is encompassed within administrative code provisions that are not challenged in this case. Paragraphs 52 and 53 of the amended complaint set forth allegations that certain Plaintiffs are harmed by portions of Act 369 that impact election laws. Paragraph 52 addresses Section I k of Act 369, which perlains to absentee voting. Paragraph 53 asserls that Sections 9l-95 of Act 369 harm two of the Plaintiffs. Those sections pertain to the issuance and validity of state identification cards used for voting. The remainder of the amended complaint concerns legislation that has no bearing on the administration of elections. In a decision issued on January 17,2019, United States District Judge James Peterson ruled that Section lk of Act369 violated that court's July 29,2016 order enjoining the defendants, all Elections Commission officials, from enforcing state imposed limits relative to absentee voting. One Wisconsin Inst., Inc. v. Thomsen, l5-cv-324-jdp, Dkt. No.338 (W.D.Wis. Jan. 11,2019). Accordingly, Judge Peterson found that the injunctions issued in July 2016, found at One 6 Case 2019CV000084 Document 100 Filed 02-22-2019 Page 7 of 13 Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896,964 (W.D. Wis. 2016), applied to Section 1k of Act 369. He also found that his previous injunction applied to Section 92 of Act 369. Section 92 of Act 369 is the section of the statute that attempts to limit the use of a temporary receipt from the DMV to 60 days. A copy of Judge Peterson's January 17 Order is attached to this memorandum. Paragraph 53 of the amended complaint states that Sections administrative rules concerning the issuance 9l-95 of Act 369 codiff DOT of state identification cards for voting. The administrative rules referenced are found at Wis. Admin. Code $ Trans 102.15. Section 91 of Act 369 largely overlaps with $ 102.15, as the plaintiffs allege. The remaining sections,93-95, also pertain to the issuance of state identiflrcation cards, part of the overall "defective system" addressed in the complaint. The present lawsuit does not challenge the lawfulness of these administrative code provisions. Requirements for the issuance and permitted use of state identification cards will remain in place, regardless how this lawsuit unfolds. Moreover, the Elections Commission does not issue state identification cards and has no control over that process. Since some of the aspects of Act 369 at issue here are enjoined by virtue of Judge Peterson's rulings, and the other aspects of Act 369 allegedly damaging the Plaintiffs will remain intact as code provisions, the Plaintiffs' requested relief insofar as elections laws are concerned is a moot point at this juncture. CONCLUSION For the reasons stated above, Defendants Dean Knudson, Jodi Jensen, Julie Glancey, Beverly Gill, Ann Jacobs, Mark Thomsen, and Meagan Wolfe respectfully request that the courl enter an order dismissing them from this case. 7 Case 2019CV000084 Dated:2122/19 Document 100 Filed 02-22-2019 Page 8 of 13 LAV/TON & CATES, S.C. Attorneys for Defendants Dean Knudson, Jodi Jensen, Julie M. Glancey, Beverly Gill, Ann S. Jacobs, Mark L. Thomsen, and Meagan Wolfe BN: P. Bach, SBN: I Terrence M. Polich, S 1 67 I 137 5 345 W. V/ashington Ave., Suite 201 PO Box 2965 Madison, WI 53701-2965 PH: 608-282-6200 Fax: 608-282-6252 d gahn z@l awtoncate s. co m dbach lâ I awtoncates. com tpolich@lawtoncates.corn 8 Case 2019CV000084 Document 100 Filed 02-22-2019 Page 9 of 13 338 AL ITlLg Page 1 of 5 Case: 3:l-5-cv-00324-jdp Document #: Filed: IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN ONE WISCONSIN INSTITUTE, INC., CITIZEN ACTION OF WISCONSIN EDUCATION FUND, INC., RENEE M. GAGNER, ANITA IOHNSON, CODY R. NELSON, IENNIFER S. TASSE, SCOTT T, TRINDL, MICI-IAEL R. WILDER, IOHNNY M. RANDLË,, DAVID WALI(ER, DAVID APONTE, and CASSANDRA M, SILAS, Plaintiffs ORDER 15-cv-324-idp MARI( L. THOMSEN, ANN S. IACOBS, BEVERLY R. GILL, IULIE M, GLANCEY, STEVE ICNG, DON M. MILLS, MICFIAEL HAAS, MARI( GOTTLIEB, and I(RISTINA BOARDMAN, øll in their officiøl capøcities, Defendants Plaintiffs contend that 2017 Wisconsin Act 369, enacted by the Wisconsin legislature in December 2018, violates injunctions issued in this case in 2016. So plaintiffs seek an order enforcing the injunction against three provisions of Act 369: (l ) limits on the time for in-person absentee voting; (2) restrictions on the use of student identification cards for voting; and (3) a time limit on the validity of temporary identification cards issued under the ID Petition Process. Dkt. 330. The court will grant plaintiffs' motion to enforce the injunctions. This not a close question: the three challenged provisions are clearly inconsistent with injunctions that the court has issued in this case. is the Case 2019CV000084 Document 100 Filed 02-22-2019 Case: 3.15-cv-00324-jdp Document #: 338 Page 10 of 13 Filed: OI LTlLg Page 2 of 5 ANALYSIS The court retains jurisdiction to enforce its own orders even while the appeal is pending, as all parties agree. Frank v. Walker,835 F.3d 649,652 (7th Cir. 2016) ("The Western District has the authority to monitor compliance with its injunction, and we trust that it will do so conscientiously . . ."). The question is whether the challenged provisions fall within the scope of the injunctions issuecl in this case. The parties clebate the legislative intent behind Act 369, but the court need not resolve that issue to clecide plaintiffs' motion. Regardless why the state legislature enacted the law, all the provisions at issue are encompassed by the injunctions and are therefore en joined. Plaintiffs first challenge S lk of Act 369, which states that in-person absentee voting, or early voting, may occLlr "no earlier than l4 clays prececling the election and no later than the Strnday preceding the election." Section ll