Kuechmann v. School District of La Crosse

GARTZKE, P.J. This is an appeal by Dr. Daniel Lange, Douglas L. Farmer, Gary Harter, Rudy Jolivette, Susan J. Knight and Lynetta R. P. Kopp from an order declaring sec. 9.10(4), Stats., unconstitutional and enjoining and prohibiting the School District of La Crosse from conducting a recall election scheduled for July 14,1992, as to certain members of the school board. Section 9.10(4) sets forth the recall procedure for city, village, town and school district officials. Appellants are candidates on the recall election ballot and were defendants below as was the school district and the district clerk. We conclude that because the plaintiffs in the action below, Robert Kuechmann and Roger Winter, both members of the school board against whom the recall petitions were filed, failed to comply with sec. 5.06, Stats., pertaining to review of acts by election officials, and have not sought judicial review of the State Elections Board's decision, the circuit court lacked subject matter jurisdiction. We reverse the order of the circuit court and direct the circuit court to dismiss the plaintiffs' complaint. On June 5, 1992, plaintiffs properly sought relief pursuant to sec. 5.06(1), Stats., with respect to alleged deficiencies in the recall petitions by filing a complaint with the Elections Board. The complaint also alleged certain matters pertinent to this appeal which the board concluded on June 12,1992, that it may not or would not review: whether sec. 9.10(4), Stats., is unconstitutional because it denies the plaintiffs due process and equal protection under the law and fails to provide adequate judicial review; and whether the nature and extent of the illegal and improper signatures demonstrated a pervasive pattern of disregard of the law and, if so, whether that compelled rejection of the petitions. The board's order of June 12 left the board with two issues: whether the clerk — 222 — of the school district had acted contrary to law in finding that the recall petitions were timely filed, and whether the clerk erred by certifying that there were sufficient valid signatures on valid petitions. On June 19, 1992, the Elections Board rendered its final decision on the complaint before it. After making findings of fact, the board concluded that the clerk did not act contrary to law in finding that the petitions were timely filed and did not err in certifying that there were sufficient valid signatures on valid petitions to recall the plaintiffs. The board therefore issued an order denying the relief sought by the complaint. But on June 17, 1992 — two days before the Elections Board rendered its final decision — plaintiffs brought this action in circuit court for declaratory relief, injunctive relief and, in the alternative, for a writ of prohibition directed against the holding of the recall election. The grounds for relief are two of the issues plaintiffs raised before the Elections Board: (1) that the recall procedure in sec. 9.10(4), Stats., denies the plaintiffs due process of law and equal protection of the laws, contrary to the Fourteenth Amendment of the United States Constitution, and (2) because of the "pervasive pattern of impropriety by each" of four circulators of the recall petitions, the petitions bear an insufficient number of signatures for a recall election. The alleged improprieties consist of misrepresentation to petition signers, forged and fictitious signatures, tampered and forged dates, and signatures by non-electors. The trial court agreed that sec. 9.10(4) is unconstitutional, did not reach the second issue, and entered the order before us on appeal. Section 5.06(1), Stats., provides in substance that whenever any elector in a district served by an election official believes that a decision or action of the official — 223 — (here the clerk of the school district) is contrary to law in (among other proceedings) a recall election, the elector may file a written sworn complaint with the Elections Board requesting that the official be required to conform his or her conduct to the law. Section 5.06(2), Stats., provides in part: No person who is authorized to file a complaint under sub. (1), other than the attorney general or a district attorney, may commence an action or proceeding to test the validity of any decision, action or failure to act on the part of any election official with respect to any matter specified in sub. (1) without first filing a complaint under sub. (1), nor prior to disposition of the complaint by the board. (Emphasis added.) Plaintiffs failed to comply with sec. 5.06(2), Stats. Plaintiffs commenced their action in circuit court before the Elections Board disposed of their complaint before the board. Moreover, plaintiffs have not sought judicial review under sec. 5.06, Stats., of the board's decision. Section 5.06(8), Stats., provides that a complainant aggrieved by the decision of the board "may appeal the decision of the board" to the circuit court. Section 5.06(9), Stats., provides: The court may not conduct a de novo proceeding with respect to any findings of fact or factual matters upon which the board has made a determination, or could have made a determination if the parties had properly presented the disputed matters to the board for its consideration. The court shall summarily hear and determine all contested issues of law and shall affirm, reverse or modify the determination of the board, according due weight to the experience, technical competence and specialized knowledge of the — 224 — board, pursuant to the applicable standards for review of agency decisions under s. 227.57. Rather than seek sec. 5.06, Stats., review of the board's decision, plaintiffs brought an original action for declaratory relief, injunctive relief and prohibition. Plaintiffs' failure to comply with sec. 5.06(2), Stats., and failure to seek judicial review under sec. 5.06(8) and (9), Stats., deprived the circuit court of jurisdiction. The Elections Board is an administrative agency. For many years, the law of this state has been that if "a statute relating to an administrative agency provides a direct method of judicial review of agency action, such method of review is generally regarded as exclusive, especially where the statutory remedy is plain, speedy, and adequate." Underwood v. Karns, 21 Wis. 2d 175, 179-80, 124 N.W.2d 116, 118-19 (1963). "Where a specified method of review is prescribed by the legislature, that method is exclusive." Graney v. Board of Regents, 92 Wis. 2d 745, 755, 286 N.W.2d 138, 144 (Ct. App. 1979), and cases cited. If the statutorily prescribed procedure for review is not followed, the circuit court lacks jurisdiction to issue an injunction. Jackson County Iron Co. v. Musolf, 134 Wis. 2d 95, 101, 396 N.W.2d 323, 325 (1986). No room exists for an argument that the remedy of judicial review afforded under sec. 5.06, Stats., is inadequate. When the legislature prescribes the method to review alleged deficiencies in election procedure, the legislature must deem that procedure to provide an adequate review. For a court to suggest that the statutorily mandatéd review in sec. 5.06(9), Stats., is somehow inadequate would defy the legislature's decision to the contrary. The summary procedure mandated in the statute evinces the legislature's knowledge that a speedy review — 225 — of the board's decision is necessary. The legislature having decreed that deficiencies in an election will be judicially reviewed as in sec. 5.06(8) and (9), Stats., the circuit court cannot employ some, other method of review, such as an independent action for declaratory relief, prohibition or injunction. It is immaterial that the board concluded that it would not or could not review the claim for pervasive fraud. The decision of the board to that effect is judicially reviewable in an action brought pursuant to sec. 5.06, Stats. It is immaterial that the board, as an agency of the state, concluded it would not and could not review the claim that sec. 9.10(4), Stats., suffers from the constitutional defects that plaintiffs allege exist. As the Wisconsin Supreme Court said in Omernick v. DNR, 100 Wis. 2d 234, 248, 301 N.W.2d 437, 444, cert. denied, 454 U.S. 883 (1981), constitutional issues must be raised before an administrative agency even if the agency lacks the power to resolve them. The parties to an administrative proceeding must not only raise constitutional issues before the agency but "all efforts should be directed toward developing a record that is as complete as possible in order to facilitate subsequent judicial review of the record under [sec. 227.57, Stats.]." Omernick, 100 Wis. 2d at 248, 301 N.W.2d at 444; see also Linse v. LIRC, 135 Wis. 2d 399, 405 n.1, 400 N.W.2d 481, 484 n.1 (Ct. App. 1986) ("A constitutional issue must be raised and the record developed before the agency, even if the agency has no power to decide the issue."). We conclude that the order appealed from must be reversed and the circuit court directed to vacate its order. The exclusive statutory judicial remedy was not followed. The circuit court therefore lacked subject matter jurisdiction in the action before it. — 226 — No doubt prompted by our July 9,1992, order vacating the circuit court's order prohibiting and enjoining the school district from conducting the July 14, 1992, election, appellants move for an early remittitur of the record. We deny the motion. Remittitur is controlled by Rule 809.26, Stats.1 Perhaps the supreme court may shorten the time but it is doubtful whether the court of appeals may do so. When our opinion on the merits is released, an aggrieved party has the right to petition the Wisconsin Supreme Court for review of our opinion and order. Rule 809.62, Stats. If we have the power to shorten the time, we decline to apply it. For us to shorten the time would interfere with the power of the supreme court to review our mandate and with an aggrieved party's right to seek further appellate relief. By the Court. — Order reversed and matter remanded with directions to dismiss the complaint; motion denied. Footnotes [1] Rule 809.26, Stats., provides: (1) The clerk of the court shall transmit to the trial court the judgment and opinion of the court and the record in the case filed pursuant to s. 809.15 31 days after the filing of the decision of the court. If a petition for review is filed pursuant to s. 809.62, the transmittal is stayed until the supreme court rules on the petition. (2) If the supreme court grants a petition for review of a decision of the court of appeals, the supreme court upon filing its decision shall transmit to the trial court the judgment and opinion of the supreme court and the complete record in the case unless the case is remanded to the court of appeals with specific instructions.