Even here, there are a few housekeeping rules that I likely will have to repeat, but I will
give them to you first and foremost.
You are not the paparazzi, put your cell phones away.
Make sure they are all the way off.
We do not want your calendar invites to go off.
Social media, Facebook, Instagram, Snapchat, calendar invites, go daddy.
Plenty of fish, right?
Let's see original one.
I forget that one every time I get up here, too.
My space.
I think somebody over here kind of said it.
So make sure they are tucked away.
The justices do not want to see them.
Well, I think, and my famous now, hold on.
Oddly enough, if you look at the, if you look at the court case we heard about a week
ago, it's my big forehead that went viral.
I know.
So today I chose bangs, in case I go viral again.
Oh my God, that's terrible.
Come on in, come on down.
As you come in here, you cannot sit along the walls, but make sure your cell phones are
off.
You are not the paparazzi.
There is no camera footage unless you are pre-approved.
And those who are pre-approved usually have the big, crazy cameras.
There are no sitting along the walls unless you have permission, and I know if you have
permission.
I'll give you a permission, Megan, today.
Good?
This is beautiful.
It looks like he is still waving people through, so I'm trying to fix that.
All right, for my school groups, justice, which is going to be the person that meets
with you after it sounds like you're going to meet at noon, so there will be a little
bit break in the middle for you to use the restroom and come on back.
There is a ceremony in here in between.
If you are not staying, it would be great if you just let one of us know that you're
not staying, so that we're not uselessly standing around waiting for you, okay?
The 12 o'clock is the time to come back if you are in the school groups.
All right, as you went to here, make sure your cell phones are off.
Can you just fetch Patrick and tell Patrick that we need to move along?
Thank you.
Good?
All right, so you are going to be required to stand two times.
The schools will be standing three times.
I'm going to come out that door and I'm going to command you to stand unless you have a
disability that we pre-spoke with or I need to speak to you about you need to stand,
okay?
When the justices are all done and she says that we're all wrapped up, stay standing
until they have all left the room, okay?
Good, the school groups, the justice, the chief justice will ask you to rise just to
show yourself this is court with class and they are very proud of it.
You need to close the doors and I can see out this door.
If I didn't say it before, I'm Sergeant Tammy Johnson.
I work with Wisconsin State Capitol Police.
My responsibility here is to keep you safe.
That's why you go through the metal detectors and I give the housekeeping rules.
Good, no eating, no drinking, no gum.
This carpet costs approximately $1 million.
We don't want to spill in anything on it, getting any gum stuck to it.
And that was back in 1992.
Some of you were born in, I don't know how probably I'd be 32, right?
Good, cell phones are off.
You know to stand, keep your shoes all the way on your feet.
There is also no hygiene in here.
If you feel like you need to pick at your face because you all of a sudden learn that
you have a pimp, I have a few of them, that you have a pimple, please do not pick at
it.
It will cause you to bleed.
And for some reason you do it, please exit and go find a restroom.
Restrooms are one level down over here for female, one level up over here for male,
unisex all the way down to the ground floor, which also has an adult changing table and
it should you so need it.
Good, that includes braiding your own hair, braiding somebody else's hair, putting your
hair up in a ponytail or anything like that, no hygiene in this room.
Good, you can leave if you need to use the restroom, but please do so by yourself, especially
for my student group.
You are on camera everywhere.
Good.
Lastly, before we go get the justices because we are right at that time, there is no sleeping
in here, absolutely no sleeping.
For those who are here voluntarily, if you're tired, please leave the room.
For those who are part of my school groups, I think she's going to call the interns too.
I am grouping you in there with that because you are on the list.
If you feel like you're tired because you stayed awake too long because you did your
homework, yes, probably not.
Or you stayed up on your video games playing Halo or Fortnite or you were on your cell phone
tick-tocking, Facebooking, Instagramming, Snapchatting, Reddit, there's like 28 of them
up in my head.
If you feel tired and you need to close your eyes, please exit and go out into the vestibule.
The deputy marshal will keep an eye on you while you're out there.
She'll give you about 10 minutes and then she'll kick you back in here.
The reason we don't want you to sleep in here first and foremost, it is very disrespectful
with the justices and the taxpayers and people that contribute to their campaigns.
The last one I think was $64 million to sit up in this chair.
But secondly, because I don't really want to work any harder than I have to today, and
if you fall asleep, you'll do this.
For some of you, there are wooden chairs in front of you.
That's going to hurt like hell.
Secondly, if you don't fall forward, you will slide under the chair in front of you.
Either way, it will cause a medical emergency and I'll have to come save you.
The whole Supreme Court will stop.
We are live on Wisconsin.
I, it looks like Channel 3 is also here today and they are pool feeding for all the other
channels.
So you will make the news if you do that.
So please don't do that, okay?
Are we good?
I think I hit all of them.
If I didn't, just bottom line be respectful while you're here, okay?
No talking.
Are we good?
Thank you.
All rise, hear ye, hear ye, hear ye, hear ye, hear ye, Wisconsin Supreme Court is now
in session.
Chief Justice Annette, can you please be seated?
Good morning, everyone.
Welcome to the Wisconsin Supreme Court.
It's nice to have you all here.
We have a healthy dose of students here today.
So I'd like to acknowledge your presence.
We have Port Washington High School, if you could stand please.
Great to see you.
Go ahead and have a seat.
Mount Horrib High School.
And nice to see you.
Welcome to the court.
Finally the interns from Governor Evers office.
Great, wonderful to see you.
Welcome to the Wisconsin Supreme Court.
Go ahead and have a seat.
So we have a busy courtroom today.
We have oral arguments.
And then we will have bar admissions.
And then you're welcome to come back and Justice Protosevic will speak with you today.
I think the students, you're welcome anytime, but at noon is when she's planning on greeting
you again in the courtroom.
So we look forward to seeing you if you have time in your schedules to come back and listen
to Justice talk about our jobs a little bit.
All right.
With respect to the case that we're hearing today, it's 24 AP 351 Wisconsin Elections
Commission versus Devin Lemahue.
Appearances please.
All right, so good morning.
I have on here, I think it's opposite.
I think you're going to kick it off with 25 minutes of argument followed by 30 minutes
and then five minutes in rebuttal.
Is that correct?
Perfect.
All right, with that, let's get started.
Thank you, Your Honor.
Every four years, the Wisconsin election mission must appoint an administrator for the Senate's
consideration.
But here, three commissioners have decided that they will not send any administrative
appointment to the Senate for as long as they wish, effectively keeping the administrator
in her position.
That in the record, I didn't read anywhere in the record where it said that there were
three administrators who would not ever appoint a new administrator.
Well, it's one instance they didn't, but can you point me where it says that?
Appendix 48, which is R21 at 17, commissioner Thompson, one of the abstaining commissioners,
said that WEC would not send any appointment over unless legislature quote, promised to
confirm and that quote, without such a promise, WEC should not even play this game.
I think that sentiment was echoed by Commissioner Jacobs as well.
I grant that the third commissioner did not say that, but I think it's fair from at
least two of the three to surmise that their position is that they will never send an administrator
over to the Senate unless the Senate promises to confirm them, which is, of course, not
the purpose and design of advice and consent to say we're not going to do it unless you
pre-commit to rubber stamping what we're doing.
So Council, I guess my question for you is, didn't the legislature just come before the
Supreme Court a few years ago and ask the court and argue that the expiration of a
term virtually means nothing?
How come your back here now asking us to say that this time the expiration of a term actually
means something?
What's the difference?
Your Honor, in praying what the legislative position, legislative position was, was that
until a replacement has been confirmed, the existing office holder is a lawful holdover.
We agree that an administrative wolf is the lawful holdover currently.
She can continue to exercise all the authorities of the administrator.
This case raises a different question, which is under this particular statute, 1561-1B1,
whether the commission has to send over a confirmation for the Senate's consideration, which was
not an issue at play in praying.
Are you asking us to overrule praying?
Absolutely not, Your Honor.
In fact, one of the claims that my friends brought in this case was to get the circuit
court to rule, the administrative wolf is currently a lawful holdover.
We conceded to that point, we did not dispute it, so we certainly do not contest that aspect
of the case.
The issue is, she's a holdover.
How do we get to the point where there is not a holdover, but a confirmed individual?
And what the statute provides, and it's important to look at the statutory text, it has two
features that I think settle the statutory question here, and this is the first sentence
of 1561-1B1.
First it says that the administrator shall be appointed by a majority of the commission
for the advice and consent of the Senate.
The word shall is, of course, mandatory.
But second, and also importantly, it says it makes clear that that appointment lasts
for four years expiring on the 1st of July, the odd number here.
In praying, it said six years.
Sorry, Your Honor?
In praying, it said six years.
Yes, yes, Your Honor.
And we do not dispute that administrator wolf is currently the lawful holdover.
If in praying, the governor had in fact discharged his duty to nominate somebody to
replace a praying.
Now that person did not, had not at least at the point of the praying case, met with
the approval of the Senate, and then you had a standoff between the governor, elected
chief executive officer of Wisconsin and the Senate.
There, the WAC, or the three commission of the WAC, have not done the job that the governor
had done in praying by nominating anybody, and our point is, they just have to nominate.
If they nominate, and...
Okay.
Let's look at that language.
I don't see shell nominate, but okay, the language says, shall be appointed by a majority
of the members of the commission with the advice and consent of the Senate, and then it says
how long the term is, to a four-year term.
So you're trying to argue to us today that shell imposes an affirmative duty to do something
by a certain time.
I think that is the best reading of the statutory text.
Okay.
So let's talk about, and you get that from shell.
So let's talk about some other situations.
So when we have a constitutional provision in the U.S. Constitution, for example, that
says the president shall be at least 35 years of age.
So is that an affirmative duty of some kind, and if so, who has that duty?
You are not every use of the word shell in every context, a prose and affirmative duty.
In that context, that provides the age minimum that the president has to be in order to serve
as president.
That's not an action-forcing situation.
Okay.
And so let's look at a different one.
The Supreme Court shall have seven members who shall be known as justices of the Supreme
Court.
This is the Wisconsin Constitution.
So is that a duty on someone to make sure there's always seven?
And if there's not, are we not a Supreme Court?
No, Your Honor.
I think that is similar, or maybe perhaps identical, to the 35-year provision that you
read for the U.S. Constitution, which is that establishes the mandatory rule for the body.
Okay.
And I heard you say just before then that somehow shell is to nominate, but it doesn't say that,
correct?
Your Honor, that's right.
I'm just saying the actual term is, shall be appointed by majority members of the commission
with the advice and consent of the Senate, and they have not.
So does the Senate have a duty then?
Because they shall be nominated with the advice and consent of the Senate.
So are you saying that the Senate would have to also participate in the process?
Yes, to participate in the process of giving advice and consent.
Okay.
So like in preen when they didn't even hold a vote on it, so they would have to hold a
vote on it?
Is that what you're saying?
My understanding, obviously, was in brief in this case.
My understanding of the original public meaning of the concept of advice and consent is that
it allows the body, the Senate usually whether it's the United States Senate, or here, to
establish the procedures by which it will provide the advice and consent.
The amount of time that the Senate takes to act on that, the internal procedures that
the Senate decides to do that, I think that would be a non-justiciable issue that is committed
entirely to the constitutional body of the Senate.
So they wouldn't have to bring it for advice and consent.
So you think this statute just gives shall be appointed when it's describing the WEC
administrator is only applies to the commission?
The Senate has to discharge advice and consent.
If your honor is saying that if the Senate doesn't discharge this advice and consent
constitutionally, if it takes a certain amount of time, that can be litigated in another
case, I'm pretty sure I would be arguing here that whether that was a certain amount
of delay was constitutional or not is an issue that is committed entirely to the Senate's
discretion, but the court could decide differently.
But here we haven't had an argument like that.
So here the question is, can three commissioners essentially cut the Senate out entirely forever
of the decision?
Under your reason, the way I'm hearing you when you're talking to Justice Dalit and
speaking about the Senate, it says the elections commission shall be under the direction and
supervision of an administrator who shall be appointed by a majority of the members of
the commission with advice and consent of the Senate to serve for a four-year term expiring
on July 1st of the odd number.
Are you also saying that that four-year term shall be served out so that whoever is appointed
the commissioner must serve for four years, because that is the only way to logically
read the sentence the way you are telling us to.
Well, the other issue of how a vacancy can be created is addressed by the subsequent
sentence.
No, no, no, no.
I'm talking about how you are using the word shall in the sentence.
You are saying that shall means that the majority of the commissioners must appoint a majority
of the must appoint the administrator.
You're saying that shall means that the Senate has this and vice in consent that they must
exercise.
So then why wouldn't it go to the third phrase in that sentence, which says that the commissioner
shall serve for a four-year term, that they have to, no matter what happens, they got
to serve four years.
Because there's other provisions both in 1561, 1B1 and also another place of the Wisconsin
Code that provide that vacancies can be created in certain ways.
And because those are provided in certain ways, obviously the individual can resign.
They can take another office where they can't serve on, they can't serve in this position,
they can pass away.
So certainly that sentence, when you're talking about other issue of the prize, could not
be looked at in isolation.
Aren't you really just asking, you're really asking us to read this sentence to give
some kind of deadline by which the governor has to do this?
Because I don't think anyone here would disagree that it's the governor who will, I'm sorry
the governor, that it's the commission.
No one here would disagree that the commission is the one who makes the appointment.
That's not up for grabs here.
You're reading to us of this word shall in this sentence is to somehow tie it to a duty.
And as we talked about earlier, shall doesn't necessarily impose an affirmative duty.
I think you actually agreed that it doesn't always do that.
But you're also saying it's a duty by a certain time.
Because even if the commission has to do it, you're saying they have to do it by at the
end of the term.
Because they did do it here.
They did do it because that's how she got where she is.
Our position is not that they would have to appoint on July 1st or June 30th or July
2nd.
It's that just like the, I think they have a footnote right at the end of their brief
that said, even under our position, they should have a reason, the, the, what commissioners
should have a reasonable time to do it.
And if your honor is told.
Okay.
All right.
Rather than the passive voice that they, that rather than saying shall be appointed by the
commission, if the, if the sentence was rather said, the commissioner's shall appoint that
hardly means.
Well, certainly is clearer in the third sentence where it says, if a vacancy occurs in the
administrator position, the commission shall appoint a Tru administrator and submit the
appointment for Senate confirmation no later than 45 days after the date of the vacancy.
I can't imagine having a case over that sentence because that is bottom line.
That is crystal clear.
Well, certainly under the different understandings
of shell and other hypotheticals that I've had mentioned
earlier, that potentially wouldn't settle those
hypotheticals.
My point here is that the use of the active voice
in that later sentence versus the passive voice
in the first sentence doesn't make a meaningful difference.
Brian Gardner, who I think is seen as the lead gramarian
in the United States with regard to statutory interpretation,
said all that has said, and we said this in a brief,
that all the use of the passive voice
does is focus the mind or the reader on the thing
acted upon here, the appointment of the administrator.
So the only difference between the first sentence
and the third sentence is the use of the passive voice.
You know, what about the use of the word if?
If a vacancy occurs.
Right, or 45 days.
Right, if then, and no, what about though, no later
than 45 days after the vacancy?
That seems to impose a mandatory duty.
Well, that doesn't say that in the first sentence.
And we're not arguing that the web
had to act within 45 days.
We're saying there's a mandatory duty in the word
shout, and they had to do it within a reasonable time.
So you're saying reasonable time,
and you're saying what they had to nominate?
What if they don't agree?
What if they're three and three?
Like, what are you saying that their duty was?
Well, so certainly it happens sometimes in state government
that a public official or a body doesn't do a mandatory duty.
Mandamus is the statutory tool to force that.
If WAC wouldn't refuse to do its mandatory duty,
a tool, which is the one we used here, of Mandamus,
is the way that you solve that function.
Why do you think it's a plain duty?
Because of the statutory text.
You know, obviously we have a disagreement here
about the statutory text, but if the court agrees with us
that we are correct in the statutory text,
the plain duty comes from the statutory text.
Council two years ago, three of my colleagues
dissented from the praying decision.
They said the majority's absurd holding
allows praying's six-year term on the board
of natural resources, which expired over a year ago,
to last for as long as praying wants it to,
so long as he refuses to leave
and the Senate doesn't confirm a nominated successor.
Why haven't you asked us to adopt the dissent in that case
because that would get you the outcome you're seeking, right?
I go back to the dissent again.
It said the majority bases these nonsensical conclusions
on its misguided reading of a handful of statutes
and a common law doctrine, de facto, du jour, appointment.
Well, Your Honor, we certainly agree
with the majority decision of praying,
but what is happening here is far more absurd
to borrow the term that was going on there.
There we had a constitutional standoff between the governor.
Far more absurd assumes a fact that the first is absurd.
Well, you don't mean it that way.
Whatever level of absurdity one wants to put
on the praying situation, whether it's zero or 100,
this one orders a magnitude more.
There you had a traditional constitutional standoff
between the governor and the Senate.
They didn't agree with appointment.
That's resolved in a holdover.
Here we have three, essentially bureaucrats
who have no constitutional status,
holding the chief election officer appointment hostage
away from the people.
This is night and day from praying.
And his folks are saying that they're not gonna send it over
unless the constitutional body pre-commits
to confirming their pick.
Did you just say that she's being held hostage?
The nomination is being held hostage
away from the, and they're saying,
and I know that they're given the terms
to release the hostage.
You Senate pre-commit to confirm our choice
or we're not playing your game
and the game being advice and consent.
Let's talk about the game.
I mean, you are trying to thread a needle here
that has no eye.
Six of the seven of us sat in this courtroom two years ago
when your client, your client insisted
that Fred Prane should be able to retain his position
on the DNR board even though his six-year term had expired
and your client won.
This is a case of careful what you wish for, isn't it?
And now the legislature is here two years later demanding
that Megan Wolf must vacate her position.
It seems to me this has little to do
with what the law actually says
and far more to do with who is in these positions.
If the legislature favors someone, they stay.
If they don't, they must go.
Does that sound like the rule of law to you?
If Megan Wolf was nominated, was appointed
by the commission and sent over to the Senate
and the Senate acted the same way they did with Prane,
which is not hold hearings,
then Megan Wolf would stay as a holdover
exactly like Prane did.
We are asking for the same rule for Megan Wolf as Prane
and I would hate it if it was the opposite,
that three members of WEC could essentially keep this appointment
away from the people's representatives.
I think it's just the opposite.
Don't you think it's a little fishy
that the three Republican members of the commission,
those three commissioners,
voted to approve her and appoint her
to send it to the Republican legislature,
which is obviously going to debunk her?
Doesn't it seem a little strange?
I don't think it's strange for commissioners
who approve of a job that the administrator is doing
and wanted to continue in that job
will follow their statutory and constitutional responsibility
to say this is the person we want
as the administrator of WEC.
What is fishy, and not actually fishy
because you don't have to guess what they were up to,
is that the three-
But you can kind of tell what they were up to,
it's pretty obvious.
And it's also obvious what the Democratic commissioners
were up to too, right?
Yeah, it's clearly what the Democrat commissioners
have to-
If we follow that, but I apologize.
I think just as for to say,
which if you look at the public statements
of the Republican commissioners,
they're voted for administrator-
Well, I would say some of the public statements
of your clients would seem to contradict
the admissions that you made to the complaint
of WEC and Ms. Wolf.
Your Honor, may I just finish responding to your first point?
If you look at the public comments that were made
by the Republican WEC commissioners
for administrator-wolf,
they were expressing confidence in her actions,
they were recommending that she'd be in fact approved
by the Senate.
Is this in the record?
I believe it was in the public,
traditionally noticeable record
of the official proceedings of WEC.
Now, certainly we put the statements of Mark Thompson
and that's in the appendix.
The other statements, they're available
in the public record in this court.
I think my colleagues are being a little unfair
because they're asking you questions,
you're responding, and then they're challenging,
well, is that in the record?
But the bottom line is that whatever the political strategies
are of the commissioners, if there are any,
is really irrelevant to the statutory interpretation
that we are tasked with in this case.
Is that right, Council?
That's right, Your Honor.
Although, I will say that sometimes,
we get into these separation of powers,
arguments for your court and parties,
before you hypotheticals, this strategy could be used
in this way that would really break
the separation of powers.
And sometimes you get pushed back,
well, that's kind of hypothetical.
But this wolf comes as a wolf.
Commissioner Thompson said,
we are not gonna send anybody over
unless the Senate pre-commits to approving them.
That is a break, that breaks the entire system.
That is claiming, frankly, to use your term,
an absurd loophole that essentially keeps
the people's representatives from ever having a voice,
at least after the first vote four years before,
of who's going to serve as the cheap election officer
of the state.
Council, I wanted to just make sure I understand
what you're arguing and what you're not.
Some of your briefing talks about separation of powers.
I took that to me in a reference to the statute,
not a constitutional argument,
at least by the reply brief,
I think it was clear to me that you were not making,
and I didn't see any fully developed
constitutional separation of powers argument,
that what I understood you to be arguing was
really directing our attention to the statute,
statutory language, and what it requires.
And I just wanna make sure that I'm not missing
something with your argument, is that correct?
It's true that we're not making a standalone
a non-statutory constitutional argument.
Of course, the statute was enacted
under the constitutional authority of legislature.
Maybe another way to say it is just to make sure
I understand, if this court disagreed
with your interpretation of the statute,
there isn't an alternative argument you're making
to sustain your position, is that correct?
That's correct, Your Honor, because if the statute
means what my friends on the other side mean,
that means the legislature's exercises
that is constitutional authority to create this.
Right.
Frankly, absurd loophole where three commissioners
can hold a nomination hostage for as long as they want.
We think that that's not clearly not what the legislature
intended by the plain statutory text and the context,
and what we have here today is the greatest
illustration of how legislature
couldn't have possibly intended that.
Go ahead, thank you, of course.
Council, in your briefing, but I point to the reply brief,
you indicate that really, whether or not
there's a vacancy is irrelevant.
Is that correct?
Am I misstating that?
Let me tell you, let me read what I think says that.
And I'm looking at page five, the heading,
in your reply brief.
Well, let me ask, regardless of what it says
in your reply brief, do you think whether or not
there's a vacancy is
not essential to
argument?
Well, there's no dispute that there is no vacancy,
so it's not that it's not essential,
it's just that there's no dispute.
There's no vacancy, she's a holdover until this is resolved.
Let me get to then the wording,
which is on page five in your reply brief, the heading,
which is subsection, are you there yet?
I don't want to go ahead of you, are you there?
Yeah, I'm looking at it, it's good.
Subsection 15.61, 1B1 requires WEC
to appoint an administrator at the expiration
of each four year term, even without a vacancy.
And then on page six, you state,
shall at the top of the page that 15.61, 1B1 quote,
shall be appointed, quote, language itself
confers appointment power upon WEC
with no requirement of a vacancy.
So I took that to mean that your argument is based
on the first sentence of the text of that statute,
regardless if there's a vacancy.
That's correct, and I mean, it will usually arise
when there is no vacancy.
I mean, the third, fourth, and fifth sentences
of that section explain what happens
when there is a vacancy.
This is a more mundane scenario
where the administrator serves out her full four year term,
and then WEC can either reappoint her
to serve out another four year term
or appoint somebody else for the advice
and consent of the Senate.
So just to tie it up, there shall be a point
in language your argument is by its very text
confers appointment power upon WEC
and there is no requirement of a vacancy,
in other words, it could be non-vacant, hm?
That's right, and I don't think
to take my friends to disagree with that position.
Just to follow up on that,
three of the commissioners though did.
I mean, the three commissioners who abstained
seem to indicate that they could not,
they argued they could not vote to a point, Ms. Wolfe,
because they didn't have power
because there was no vacancy.
And I think you're saying both parties disagree
with that, is that correct?
I don't think that they were saying
that they didn't have the power to.
In fact, Commissioner Thompson said,
clearly that if the Senate had pre-committed
to confirm Ms. Administrator Wolfe,
she would have voted to reappoint her
and I think the rest of them would have too.
And that is, I think what's really good,
I mean, I don't know if there's any doubts
what's going on here is the three commissioners
who voted to abstain strongly support her staying on
and they won't vote for her unless the Senate
essentially advocates its role
by pre-committing to confirm her.
Thank you.
Definitely not that way.
Madam Chief Justice, and may it please the court.
This is a holdover case.
An appellants have conceded two of the court issues
in this case already, that Meghan Wolfe
is validly holding over as the administrator
of the Wisconsin Elections Commission.
And that during that holdover,
there is no vacancy for the commission to fill.
The commission brought this suit
after the Senate majority voted to deem her
re-nominated and then voted to fire her.
But in the litigation,
appellants have quickly conceded those two points.
And although their public comments,
as Justice Prada say, which referred to,
have sometimes contradicted those litigation positions,
they've never disputed in this case
that she's validly holding over
and that there's no vacancy in the position
while she does so.
Now let's move to the appellants remaining argument.
But despite the holdover,
and despite the lack of vacancy,
the commission has a duty and a mandatory one at that
to re-appoint her or to select someone new.
That's wrong for two basic reasons.
The plain language of 1561 itself
and this court's decision in Pasco v City Milwaukee.
So 1561 is a big statute that discusses
appointments, removals, and vacancies
both for members of the Wisconsin Elections Commission itself
and for the administrator.
I just want to follow up on the question
I asked your opposing counsel,
but I'm just looking at the record here,
and I also make sure I'm understanding it,
but in at least the appendix here,
I think this was the maybe complaint.
But Commissioner Thompson, Mark Thompson,
agreed and concluded the commission
lacked even the ability under the current law
to re-point because there is no vacancy
in the administrator position.
So I thought, and again, correct me if I'm wrong here,
that the three Democratic appointees
or at least Commissioner Thompson, maybe others,
voted present, at least they said they voted present
because they did not feel like they had the authority
to even appoint a new administrator.
And I see the position you're taking
is though you disagree that duty is mandatory
upon the expiration of a term,
but that you think that the commission, in fact,
does have the authority to point a new administrator
right now and that they were incorrect.
Is that accurate?
Well, three answers to that.
First of all, factually, your honor is absolutely correct
that that was the stated reason of the three commissioners.
This side comment by Commissioner Thompson
about we should have a deal in place that was not
joined by anybody else.
So, Mr. Satan was a little confused on the record there.
The question of whether they can appoint
versus must or cannot is not an issue in this case
because it doesn't matter whether they could
and decided not to or whether they can't.
Either way, they don't have a duty.
The only issue in this case is whether they have a duty
and we're going to talk about why they don't.
But I think the confusion comes from the discussion
and preen about, well, what can the governor do
when there's a holdover and there's no vacancy for him to fill?
And obviously, the majority and the dissent
had different views of 15.07.
It would be pretty hard for us, I think,
to decide this question as a matter of statutory interpretation
and not at least implicitly answer the question
as to whether the commission can right now
with concededly no vacancy and a lawful holdover,
appoint a new commissioner.
I'm trying to think how you would, like,
read the statute and not at least address that point.
And that's, I agree, there wasn't a lot of debate about that,
but there might be, maybe you could say,
if you're correct, there is no mandatory duty to point
within a specific timeframe.
But in order to make sense of the statute,
you know, can you only point if there's a vacancy, again,
as the three Democratic appointees to the commission seem to say?
And to some extent, if this case is important
for the functioning of the elections commission,
perhaps it might be useful for us to at least interpret the statute
in reference to that, too.
And it seems to be underneath the surface of this case.
Okay.
You know, it might be useful in an advisory kind of way, sure,
but in terms of necessary to decide the case,
I'd push back on that.
In pre-in, it was necessary because if the governor didn't have
an ability to appoint during a holdover,
it brought up the problem the dissent was pointing out,
which is, well, how do we even get someone that the Senate can look at?
Right?
In this case, all the commission needs to do to create that vacancy
that indisably gives them the power to make an appointment
is they remove a commissioner under 1561-1B2,
which they can do at any time, including the commissioner's terms.
So you're at this point not taking a position at all
as to whether the first sentence permits them
even absent of vacancy to appoint an administrator?
We just don't see it as necessary to reaching a holding in this case.
So if I can get back to 1561 because understanding the statute
is really helpful here in a kind of deeper level,
that statute has the job of telling us who the appointing authority media is
for each of the commissioners and the administrator,
and there's actually five different appointing authorities.
It's a really interesting statute.
Each position's term of office, the removal process for the administrator
that I just talked about with Justice Hagendorf,
and what to do if there's a vacancy either in the position of the administrator.
And there are three sentences in 1561 that do impose a duty to appoint.
But to answer and respond to Justice Bradley's question,
they all apply only if there's a vacancy.
So you've got the third sentence of 1561-1B1,
which talks about a vacancy in the position of the administrator,
and then two sentences in 1561-5,
which talk about vacancies in the commissioner positions.
The provisions are pretty similar,
but obviously we're going to focus on that third sentence of 1B1 today.
It has all, sorry, Justice Bradley.
I may just kind of tie this up, at least in my mind.
I quoted earlier from the reply brief of the defendant,
the pellets here, but was asking about regardless if there's a vacancy.
And I know that resonated in my ear because I had read it,
and indeed it's on page 23, which you don't need to look at.
I will read it to you of the legislature's brief.
It says, here under the plain text, statutory content,
and statutory purpose of 1561,
wept must appoint an administrator at the expiration of each four-year term,
regardless of whether a vacancy in that office exists.
So it's your position, however, that you need a vacancy.
Correct.
To that extent, you're at odds with whether a vacancy is needed.
Let me ask perhaps a bit rhetorically.
Are you asking us to overrule praying?
We are not.
There's a lot of pieces of praying this court may want to revisit at some point,
but that's not necessary today.
We'll talk a little more about that as we go on.
But what I want to focus on first is that third sentence of 1B1,
because it has all the hallmarks of a statute that does create a duty,
and I think it's really helpful to see what that kind of statute looks like.
So we start that third sentence out, and it has a clause that creates the condition,
the triggers of vacancy, if a vacancy occurs.
So now I'm on the commission.
I'm like, oh, no, when this happens, right?
Then I get to the second sentence, we've got an active voice sentence
that says, the commission shall appoint a new administrator.
Well, right now there, we know it doesn't apply to holdovers
because you're not appointing a new administrator if you've got a holdover.
Third, it creates a deadline to act no later than 45 days after the date of the vacancy.
And this one even has like the bonus round.
The fourth sentence says that it creates a consequence.
If the commission fails to meet the deadline, turning things over the Joint Committee
on Legislative Organization, pool points, and interim administrator.
Now, let's go back to the appellant's sentence that they like.
It reads very differently, and it reads differently because it has a different job.
And we know that our responsibility is to honor the different choices
the legislature makes in drafting, and when they pick different language,
especially in the same subsection of a statute, we respect it and give it different meeting.
So let's look at that first sentence.
Unlike the third sentence, it creates no triggering condition.
It creates no deadline to make an appointment.
It imposes no consequence for not making an appointment.
And it's syntactical structure using the passive voice
that an appointee shall be chosen by the appointing authority
on granting authority to the commission, not some other entity.
If you go back to 1561 1A, you see all sorts of different bodies get to appoint,
they are not bureaucrats.
Two of them are actually appointed by two of the appellants here.
But you have four different appointers up in for the commission,
and we get down to the administrator, and the legislature said,
the commission shall choose its own administrator, right?
But the focus is on who has that grant of authority?
It's like dozens of other provisions in our lot.
We think there's over 160 provisions like this in our statutes with that same syntax.
Appointee shall be selected, shall be appointed by appointing authority.
Council, about how long could it go on, quite frankly?
I mean, how long could she be a holdover?
How long is indefinitely?
This is a question that Justice Hagadorn asked during pre-nead oral argument.
As long as the majority of the commission feels that she is doing a good job,
and we'll talk in a minute about what a complex, difficult, full-time job this is,
and as long as administrator Wolf wants to continue carrying out this very intense job.
But the important thing, and this is different than preen,
is the appointing authority can remove her at any time if they feel that she's not doing a good job.
This is not like the result in preen where the appointing authority was just stuck.
Now, Mr. Salin mentioned that the passive voice, just I think his quote,
focuses the mind.
And what passive voice can also do is focus our mind on what matters.
And here what matters is who appoints not imposing a duty on the commission.
And that's what this court concludes.
So I just want to go back to my previous question because there are parts of your brief
that discuss what the first sentence means in reference to preen and I think it's preen.
But you discussed that it has, the preen supports the rule that an appointing authority has the option,
but not a duty to make a new appointment during a holdover.
And so there's a number of arguments here that, again, it's an option not a duty.
So I thought the dispute between the two sides here was whether the first sentence mandated a new appointment
within a particular period of time, or whether it permitted a new appointment after the expiration of a term.
But it seems to me that you may be backing away from that and saying there may or may not be the option to appoint
if there's a vacancy depending on the vacancy status.
And again, I think that's why to me this question about whether you can appoint matters for how you read the statute.
Does the statute give the authority to appoint when there is no vacancy in subsection one or not?
I don't know how we don't.
I mean, I get your understanding, your dream scenario is here.
We just say the duty is not mandatory.
Thank you.
I understand that's your preferred argument here, but it feels like we have to read the statute in some ways.
And your arguments based on praying in part seem to suggest that there is an authority to appoint somebody new,
again, which the three commissioners based their vote on the fact that they did not have any authority to act at all.
Right.
And just to be clear, our friends on the other side have never made an argument that if they have an ability to appoint,
right, and I heard your honor saying, well, it would be good to give guidance to everybody on what the lay of the land is.
So here would be the argument that they do have the ability to appoint.
It's that the majority in praying, I'll use praying, not the dissent said that 15.07, which is the governor's appointing authority,
creates an action for him to appoint during a holdover.
That's a preen at 23.29 and 53 if it wants.
So the analogy would be to say, well, you have that same passive syntax, the person shall be appointed by the commission,
so that if 15.07 has that role there, then 1561, the first sentence does here.
There are some differences in the statutes, obviously, including the fact that the governor's appointment statute gives poor cause protection to the person.
So the whole sense of what the term of office is different there than it is in 1561, where the administrator never enjoys that for cause protection.
But I want to make sure we get to Pasco, because Pasco is really helpful to the court here, I think.
Before you do that, can I just ask you to respond to an argument that Mr. Zeeland made,
although he didn't make it today in front of us, but he made it numerous times in the briefs,
that the sentence in paragraph 18, the governor must nominate and the senate must confirm members of the DNR board,
somehow infers this mandatory obligation.
So that paragraph is not talking about holdovers, Your Honor.
It's just talking about the governor's general duty to appoint.
If we want to find out what to do about holdovers, we've got to go to those more specific sentence paragraphs 23.29 and 53.
We're talking about prerogative.
Correct.
And in the circuit court, they argued that prerogative means duty that they must, or that he must, I think they've abandoned that now.
Okay, so let's make sure we get to Pasco here, because it again featured one of those common passive voice constructions.
All vacancies in the department shall be filled and all new appointments shall be made by the respective chiefs.
And the argument there was, hey, that creates a duty to appoint.
In this court concluded, in a unanimous opinion, that the sentence shows that the legislature has merely designated who has authority to fill the vacancies.
Who has the power?
It is not a mandate to the chief, but a grant of power.
And the same is true with the first sentence of 1561, 1v1.
It is a grant of power to the appointing authority here at the commission.
In other statutes, other appointing authorities, it is not a duty to appoint.
Now in their reply brief, the appellants tried to distinguish Pasco based on the premise that it did not have a temporal element.
And I think the way Mr. St. Lang described it today is that our statute mentions a term of year.
But the question isn't whether a statute talks about time ever.
It's whether the statute has a deadline.
In paragraph 28 of Pasco, you'll see that the statute says the statute did not require the chief to fill these positions.
At any certain time.
Today Mr. St. Lang conceded that if the statute they're relying on does not require the commission to fill these positions on any particular deadline.
And that's fatal.
If there's no deadline, there's no duty.
When the legislature wants to create a deadline, it's easy.
You create deadline language.
You require action within a certain time, or no later than a certain number of days.
That's exactly what they chose in the third sentence of 1B1, where they said not later than 45 days.
And we all know that not every mention of time in a statute is a deadline that time has many, many rules in our law.
And telling appointing authorities and potential appointees what the term of office will be is a separate reason to discuss time.
It doesn't have a secret embedded deadline within it.
Attorney Gibson, you seem to have a very well thought out outline and I don't want you to have to stray too far from it.
But I want to make sure you get to remedy at some point.
So is that on your deadline?
Because I am concerned with the remedy that you're requesting it.
Sure.
So in the, I'm sure the court has reviewed the record thoroughly and sees the kind of struggles we had in the circuit court.
The concessions they made in their litigation filings, but then the public comments they made in public.
So we did seek injunctive relief there to make sure that those concessions had some weight.
And that the Senate didn't try to do what it had done in September of 23.
We are confident that when this court rules that administrative wolf is validly holding over and
that the commission has no DV to appoint during that holdover, that the opponents will respect that.
So we are not seeking to continue the permanent injunction.
Just a declaratory judgment.
Correct.
Okay.
Thank you.
Command Amos, you're seeking.
Right.
I mean, we're so far from Mandamus and I don't, I don't even hear Mr.
Staitlin really trying to, trying to defend a Mandamus statement.
He's saying there's no specifics on when this duty even happens or how we can't be in, in Mandamus land,
which requires a clear and plain duty.
Council, what work, if any, does the four-year term language in the statute do?
Because it seems to me that there is absolutely no difference between an administrator during her four-year term or as a holdover.
So doesn't your construction of the statute just read the four-year term language completely out of the statute?
No, that's incorrect, Your Honor.
First of all, the term of office is different, has different roles in different statutes.
So if we go back to the statute of issue in praying, everybody on the court then agreed that during those four years after his Senate confirmation,
he had four-cause protection.
So that the term of office had that, that role for him.
Here in 1561, it never has that role because the administrator is always an at-will employee.
So we have to look for other purposes for the term of office before we ever start talking about holdovers.
And what that role is, as I may have mentioned before, is to provide both the appointing authority and the potential appointees a sense of what kind of job is this?
And if we look at all these dozens of statutes with different terms, we see ones with really short terms and ones with long terms,
commissioners serve for five years, for example.
And so longer terms come with a set of higher expectations about the goals we might set, the goals we might meet,
and then the importance of continuity and stability in the position.
But if she's at will, it doesn't matter if she's serving her for your term or if she's a holdover.
No, it does not.
But again, embedded in your honor's question is this idea that it's really like, it must be an opportunity to reappoint,
or it must be an opportunity to fire.
I'm not saying that.
I'm just asking you, what role does it play because you could erase it from the statute in your construction of the statute effectively erases it.
There's no point in specifying a term for her because the commission could remove her at any point in time.
She's in that, well, employees.
And my question again is, what role does the four-year term language serve?
I don't think it serves any.
Well, I just agree with your honor, and I see I'm going to be selling you on what we think is an important term.
Maybe a helpful analogy is, you know, often private contracts between independent contractors and companies will say,
this is a three-year contract, even if it's, even though it's terminal and will buy it either side, right?
But the three-year contract between contract, if somebody hires a contractor, they have a contract.
So if they try to terminate that, they have to have a reason.
But here the commission does not.
No, that's not true, Your Honor.
Well, it is actually true, Counsel, in a commercial context that you're invoking, which is not the same situation.
Well, we're outside the record now.
But my personal experience is that you can have a term of a contract that remains terminable at will.
And it is really important for people to understand what the initial term is.
Because we need to know, like, am I only going to be in town for six months?
So I'd like to help out at the Wisconsin Elections Commission, but I really don't have that length of time to commit, right?
Oh, my isn't the answer to you.
Sorry.
I'm just wondering.
I'm not getting an answer.
Go ahead.
Okay.
Well, maybe this will answer it.
If it isn't the answer to Justice Rebecca Bradley's question, look at Prane.
I mean, isn't that when Justice Dalit and her dissent in Prane talked about the conclusion being bizarre and absurd,
and I think there might have been one other adjective that's not coming to us.
Yeah, I'm sure there was.
Maybe even an adverb for one of those adjectives.
Certainly bizarre.
But when she wrote that in Prane, she's talking about this, right?
In Prane there was a six-year staggered term, and we said, don't worry about it.
So why isn't the answer to your question to Justice Bradley today?
It's in Prane.
I mean, Prane did away with that.
It did away with what the end of a term means.
That's what makes Prane so absurdly bizarre, right?
Well, I agree.
I think that Mr. Staitland's side has said, well, it was meaningless under Prane except that for the first time the governor has an opportunity to appoint if he wishes.
But it doesn't have that role in this statute because the commission can always remove an administrator and pick someone new.
And that's why we think it's a very crabbed reading of term of office just to see it as, how soon can we fire you?
I want to make sure we talk briefly about Appellant Separation of Powers argument.
I think everyone's probably on the same page on this.
But unlike the US Constitution, our Wisconsin Constitution has no constitutional role for the Senate to advise and consent.
What they have is a statutory power.
So if we comply with the statute, that's the end of the story.
I'd like to add this would not be a great case for the first time, recognize such an implied constitutional power for the Senate.
Because this isn't like Prane where you had the governor that the Senate majority was just stuck with this guy who's appointing people, maybe they don't like.
They have a robust, significant role in picking who the appointing authority is to begin with.
As I said, two of the Appellants in this case picked two of the commissioners themselves, one of whom is actually a holdover.
And then two more of the people are chosen by the governor, but from a three person list given to them by legislative leadership.
And then those two people go through advice, advice, and consent themselves.
Your opposing counsel has said he's not making a separate constitutional argument that his argument is based upon the statute.
So it seems to me that we're all in agreement between the two of you, at least that the question before us is a statutory one.
Right, great.
It's great to have everyone on the same page.
We always are.
So I also wanted to address Mr. St.
Lin's point about a tie.
And it is true that in some cases the commissioners could sometimes disagree about the quality of an administrator's performance.
And that means there wouldn't be a majority at that moment under 1B2.
And we think that's a feature that the legislature wanted to build in here.
It chose to have an even number of commissioners, not an odd number, like this body.
And that the commissioners reflect a variety of different viewpoints, even beyond the Democratic Republican thing.
Right, two of the commissioners must be former clerks.
And so that means, and I know there are people in this room who get frustrated with them for tying for other reasons.
But that reflects a preference in close cases for stability and consistency over acting potentially precipitously,
or in response to shifting political pressures.
This role is not a part time policy making position like the NR board people.
This is an intense full time job requiring expertise and experience.
And it just doesn't work if there are frequent changes in personnel and sudden vacancies.
And administrator Wolf's responsibilities are detailed in the record at R6.
And it's quite an overwhelming list.
I'd urge you not to apply.
But just I thought it'd be helpful to get a flavor of some of the things she does.
Implement the directives of the commission regarding elections administration.
Administering personnel and HR functions.
Preparing the standard ballot forms that all the clerks have to use.
Managing election recounts.
Administering recall elections.
Preparing guidance and advisory opinions that the commission wants to issue.
Providing trainings for clerks and other election officials.
Creating voter information and education programs.
And leading the agency's review and approval of electronic voting equipment, which you have to do before every election.
That's just a sampling of the responsibilities.
But if an administrator is underperforming, the commission's right there on the ground with her.
They're going to see that.
And regardless of whether the Republicans or Democrats, they're going to coalesce.
And bring in an administrator who can do the job.
So if there are no further questions from the court, we ask this court to affirm the circuit court's holding below.
That administrator Wolff is validly holding over.
And that the commission has no duty to appoint during that holdover.
Thank you.
Just a couple of brief points, Your Honor.
I think the most, Your Honor's, I think the most telling portion of that presentation.
Was my friend's answer to Justice Pro's say what's of how long can this go on?
The answer was, I think I heard, forever.
We have a situation where the position that they're putting forward is that three members of a commission can forever keep away from the people's voice.
You asked us to overrule the train.
Would that still be the case?
I know, Your Honor.
In praying, you have a traditional deadlock between the governor and the legislature, which are both elected by the people.
The way that that is resolved is the way the praying resolves it.
Well, we have here what they-
That's not answering my question.
Yes.
What I hear you say is what you said on page 35 of your brief.
And you said, this creates an absurd separation of powers, I'm sorry.
This creates the absurd separation of powers violating results discussed above, where the administrator will retain power indefinitely,
and with the support of exclusively one political party.
And my question to you is, if you are sincerely worried about this, then why not ask us to overrule the train?
I mean, you've read the dissent, right?
It's convincing.
Oh, it's not.
Yours, I would submit that there is a very significant difference when you have the governor,
who's elected by the people to be the chief executive, deadlocked with the Senate,
which is elected by the people to do it by the consent, versus a situation where you have three with respect bureaucrats,
holding this- the state's chief election officer's appointment away from all the people.
But that wasn't the basis of praying.
It wasn't based on who made the appointments and that it was a deadlock between the governor and the legislature.
Where do you see any of that language?
That's not even in the dissent.
I mean, I wasn't involved in praying, but as I read the praying decision, there was a prior decision of this court, Thompson.
And the majority, an old case, the majority went with Thompson, the dissent wanted to overrule Thompson.
You know, started to say this is an important consideration.
None of that is an issue here.
We have a statute that has certain language, has mandatory language.
And we have the council for work saying that this absurd position can go on forever.
If there's no precedent that requires this court to reach that absolutely absurd result, they say Pasco.
The Pasco didn't have any sort of term of years in there.
If you read the statute of Pasco, it's obviously just telling the Milwaukee folks who appoints.
Here, you have a four-year term.
And it says, shall.
By far the most reasonable reading of that is that once the four-year term expires, these folks on WAC have to make the appointment.
So the people, I mean, look, there's a lot of arguments here.
I've got to take a step back.
This is the state's chief election officer.
They are telling this court that who the state's chief election officer will be forever away from the people.
That is not a sustainable result in a democracy.
Council, if you're, suppose the commission had appointed a new administrator that was rejected by the Senate.
In your read of the statute, would it require the commission to act again?
I think that's right.
Your Honor, the second section of the provision we're talking about, second sentence, says that once the nomination has been sent over,
then WAC appoints an interim administrator during the period of the Senate's consideration.
If the administrator wolf or somebody else was sent over and the nomination was rejected,
that interim administrator presumably would stay on as a holdover until WAC did its duty to send over another name.
And eventually there would be an agreement because it's so important to have a chief election officer.
The problem with the interpreter, sorry.
I just want to follow up with one question your posing council made and I'd like to hear your respond to it.
That your argument is that they need to do it within a reasonable time.
You don't argue that there's a specific deadline for it.
There's under Mandamus that puts us kind of outside of Mandamus because it's not a sufficiently certain piece.
Would you respond to that argument, please?
Your Honor, Mandamus is an equitable remedy.
The closest case we found on point to a situation like this is the Hanosuba case out of Hawaii.
The Hawaii Supreme Court ordered the Mandamus and they said, you've got a reasonable time to do this.
I mean, that's the way Mandamus generally works.
You've got to give the officials a reasonable time.
You can't appoint them back in July.
You've got to do it now.
I mean, whatever that reasonable time period is, it's been a year and a half.
And look, Your Honor, if you think that we haven't satisfied the standards from Mandamus,
issue a ruling saying that we're right on the meaning of the statute.
Presumably, you know, the kind of frankly nonsense that's been going on with WEC,
where they're saying we're not going to send anyone over unless you pre-commit to approving it,
would end if there was that kind of decision.
Otherwise, it's been a year and a half.
It's been a year and a half since the people have a statutory right to speak who will be their chief election officer.
If this common case comes out the way the circuit court ruled, it will be indefinitely.
And that is just not a sustainable way to govern the democracy.
Thank you.
All right.
The court is adjourned.
For all the argument, the students that are here, we hope to see you again about noon.
And other than that, go about and enjoy your day.