Mandamus Relief

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WI Court of Appeals – District IV

Case Name: State of Wisconsin ex rel. Timothy Zigengo, et al. v. Wisconsin Elections Commission, et al.

Case No.: 2019AP2397; 2020AP112

Officials: Fitzpatrick, P.J., Kloppenburg and Nashold, JJ.

Focus: Mandamus Relief

The respondents in this appeal, who were the plaintiffs in the circuit court, are three Wisconsin taxpayers and registered voters. The appellants are the Wisconsin Elections Commission and five of its six individual commissioners. Plaintiffs brought suit against the Commission in the Ozaukee County Circuit Court alleging that the Commission failed to comply with a particular election law. The circuit court agreed with Plaintiffs and granted a writ of mandamus ordering the Commission to “comply with the provisions of [WIS. STAT.] § 6.50(3) and deactivate the registrations” of thousands of electors in the State of Wisconsin. The circuit court later found the Commission, and three of its individual commissioners, in contempt of court for failure to comply with the court’s writ of mandamus.

The Commission appealed both the writ of mandamus and the contempt order in separate appeals. In orders dated January 14, 2020, this court: (1) stayed the circuit court’s writ of mandamus against the Commission; and (2) stayed the circuit court’s order for contempt which was based on the Commission’s failure to comply with the writ of mandamus. We entered those stay orders after the Wisconsin Supreme Court denied Plaintiffs’ Petition to Bypass the Court of Appeals. See WIS. STAT. RULE 809.60. This court set an expedited briefing schedule for this appeal with the final brief filed on February 19, 2020.

The explicit basis for the circuit court’s writ of mandamus, and a necessary premise for Plaintiffs’ arguments, is that the Commission has statutory duties pursuant to WIS. STAT. § 6.50(3). We reject Plaintiffs’ arguments, and reverse the writ of mandamus entered by the circuit court, because the plain language of § 6.50(3) neither refers to the Commission nor places any duties on the Commission.

We also vacate the circuit court’s contempt order because of our reversal of the writ of mandamus. We further reject Plaintiffs’ request to construe the contempt order to allow for monetary sanctions against the Commission and three of its individual commissioners for the less-than-24-hour period between the issuance of the contempt order and our stay of that order.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.