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  • November 21, 2023

    Court of Appeals: Voting Group Not Entitled to Guardianship Voting Forms

    A corporation is not entitled to voting eligibility forms created as part of guardianship proceedings because the forms are pertinent to guardianship proceedings and are closed under a state statute, the Wisconsin Court of Appeal has ruled.

    Jeff M. Brown

    Four People In A Line Bent Over Their Ballots In Voting Bootsh, With Their Backs To The Camera

    Nov. 21, 2023 – A corporation is not entitled to voting eligibility forms created as part of guardianship proceedings because the forms are pertinent to guardianship proceedings and are closed under a state statute, the Wisconsin Court of Appeal has ruled.

    In Wisconsin Voter Alliance v. Reynolds, 2022AP 1749 (Nov. 9, 2023), the Court of Appeals District IV also held that the circuit court’s labeling of a records request as a “fishing expedition" did not show bias that violated the corporation’s right to due process.

    Records Request

    On June 18, 2022, Wisconsin Voter Alliance (WVA) emailed Juneau County probate register Terry Reynolds asking for the name, address, and date of birth for every ward under a guardianship in Juneau County.

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    In the email, WVA said it was making the request because of concerns that wards under guardianship in Juneau County had improperly registered to vote and improperly voted in recent elections.

    WVA cited Wis. Stat. section 54.75 in making its request.

    That statute specifies that court records “pertinent to” a finding of incompetence are closed, but that: 1) the fact a person has been found incompetent; and 2) contact information for the guardian are disclosable to a person who demonstrates a need for that information.

    Under section 54.25(2)(c)1.g, a circuit court has the authority to declare that a person lacks the capacity to register to vote or vote, “if the court finds that the [person] is incapable of understanding the objective of the elective process.”

    Elections Forms Sought

    On July 26, 2022, WVA emailed Reynolds again, asking for all guardianship orders in the county that were in effect from Jan. 1, 2016, to the present, for wards with no voting rights, along with the wards’ name, address, date of birth, and other information.

    In the same email, WVA asked for copies of notices of voting eligibility (NVE) forms sent by the county to the Wisconsin Elections Commission (WEC).

    Mandamus Petition Dismissed

    Also on July 26, WVA filed a writ of mandamus with the Juneau County Circuit Court. WVA claimed that it had demonstrated a need for the requested records under section 54.75, but Reynolds had failed to provide the records.

    On Aug. 9, 2022, Reynolds denied WVA’s records request; on Aug. 22, he moved to dismiss the WVA petition for a writ of mandamus.

    On Aug. 24, 2022, the circuit court dismissed WVA’s mandamus petition for failure to state a claim. WVA appealed.

    Forms ‘Pertinent’ To Guardianship

    On appeal, WVA argued that the circuit court abused its discretion by dismissing the petition. WVA also argued that the circuit court was biased against WVA.

    Writing for a three-judge panel, Judge Jennifer Nashold began her opinion by explaining that under Wisconsin law, a party seeking a writ of mandamus for an alleged failure to provide public records must show that: 1) the party had a “clear legal right” to the records; and 2) the government entity had a “plain legal duty” to disclose the records.

    WVA argued that the NVE forms are not “pertinent to a finding of incompetency” under section 54.75 because the forms are created after the close of guardianship proceedings, and as such could have played no role in a court’s finding of incompetency.

    But Judge Nashold reasoned that that argument, in effect, read the words “played a role” into section 54.75.

    “The statute does not include such language,” Nashold wrote. “Instead, it uses much broader language, stating that court records are closed if they are ‘pertinent to the finding of incompetency.’”

    It was immaterial that NVE forms are completed after the close of guardianship proceedings, Judge Nashold concluded.

    “Many court records that are pertinent to a court’s decision – such as court forms, written opinions, and transcripts of proceedings in which decisions are made – are created after the court has made a decision,” Nashold wrote.”

    Judge Nashold pointed out that each NVE form is signed by the county’s register of probate and becomes part of the court file. She also noted that under section 54.25(2)(c)1., the NVE forms are mandatory.

    “Reporting the court’s determination about a ward’s capacity to vote or register to vote in the manner prescribed by the guardianship statutes can only be reasonably described as being ‘connected with,’ ‘related to,’ or ‘relevant [to]’ the court’s finding of incompetency in the guardianship proceeding,” Nashold wrote.

    Judge Nashold concluded that the court of appeals need not address the argument that WVA had demonstrated a need for the requested information under section 54.75 because WVA took the position that it was only entitled to the NVE forms, rather than the information contained in the forms.

    Quotes Do Not Show Bias

    Nashold explained that under Wisconsin Supreme Court caselaw, cases with “extreme facts which [rise] to the level of a serious risk of bias” are rare.

    WVA argued that four quotes from the circuit court’s order dismissing the mandamus petition showed that the circuit court was biased against it.

    In the first two quotes, the circuit court had written that WVA’s “political goals[ ] may be laudable or not” and that WVA “wish[es] to pursue some political or legal remedy against the Wisconsin Elections Commission.”

    But Judge Nashold pointed out that the following sentences followed the first quote: “The court takes no position on this. It is not germane to the issue.”

    “Thus, rather than demonstrating bias, the court’s full statement actually reflects a lack of bias,” Nashold wrote.

    In the other two quotes cited by WVA, the circuit court referred to WVA’s “fishing expedition.”

    But Judge Nashold pointed out that at the time the court made the “fishing expedition” quotes, WVA’s records request was much broader than the narrowed request that it presented on appeal.

    Nashold also pointed out that the phrase “fishing expedition” is common legal parlance and is found in Black’s Law Dictionary.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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