STATE OF WISCONSIN
CIRCUIT COURT
DANE COUNTY
BRANCH 9
______________________________________________________________________________
LEAGUE OF WOMEN VOTERS OF WISCONSIN
EDUCATION NETWORK, INC.
and MELANIE G. RAMEY,
Plaintiffs,
v.
Case No.: 11-CV-4669
Case Code: 30701
SCOTT WALKER, THOMAS BARLAND
GERALD C. NICHOL, MICHAEL BRENNAN,
THOMAS CANE, DAVID G. DEININGER,
and TIMOTHY VOCKE
Defendants.
______________________________________________________________________________
PLAINTIFFS’ BRIEF IN OPPOSITION
TO MOTION TO DISMISS
______________________________________________________________________________
Plaintiffs League of Women Voters of Wisconsin Education Network, Inc.
(“LWV”) and Melanie G. Ramey (“Ramey”), by their attorneys, Cullen Weston Pines &
Bach LLP, respectfully submit this brief in opposition to the defendants‟ motion to
dismiss.
I.
INTRODUCTION.
The two plaintiffs, League of Women Voters of Wisconsin Educational Network,
Inc. (“LWV”) and Melanie Ramey (“Ramey”), bring this declaratory judgment action
alleging that 2011 Wisconsin Act 23 (“Act 23”) violates the Wisconsin Constitution.
Plaintiffs claim that the legislature, in enacting Act 23, which mandates that an eligible
voter must display a specified form of government-issued photo identification at the
polls before he or she may be deemed qualified to vote, exceeded its constitutional
authority to enact laws implementing the right of suffrage under Wis. Const. Art. III,
§§ 1 & 2.
The defendants have moved to dismiss the complaint for failure to state a claim
under Wis. Stat. §802.06(2)(a)6. The defendants‟ motion to dismiss is based on two
procedural claims1: first, that neither of the plaintiffs has standing to bring a
declaratory judgment action challenging the constitutionality of 2011 Wisconsin Act 23;
and second, that Governor Scott Walker is not properly named as a defendant in the
lawsuit because he does not enforce or administer the election laws that were amended
by Act 23. This court should deny the motion to dismiss. Both the LWV and Ramey
have standing to bring a declaratory judgment action challenging the constitutionality
of Act 23. Additionally, Governor Walker is properly named as a defendant to this
action.
II.
LEGAL PRINCIPLES FOR REVIEW OF A MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM.
A motion to dismiss a complaint for failure to state a claim tests the legal
sufficiency of the complaint; all facts pleaded and all reasonable inferences from those
facts are admitted as true, but only for the purpose of testing the legal sufficiency of a
claim, not for trial. Scott v. Savers Property and Cas. Ins. Co., 663 N.W.2d 715, 262 Wis.2d
127 (2003). “A complaint will be dismissed only if it appears certain that no relief can
be granted under any set of facts that the plaintiffs might prove in support of their
The defendants‟ brief in support of its motion to dismiss also argues that dismissal is warranted because
the Attorney General was not served with a copy of the complaint. Defendants‟ counsel subsequently
informed the court by a letter dated December 2, 2011, that the Attorney General was served with the
complaint and that the defendants have withdrawn this claim.
1
2
allegations.” Id. “When standing is challenged on the basis of the pleadings, [courts]
accept as true all material allegations of the complaint, and . . . construe the complaint in
favor of the complaining party.” Town of Eagle v. Christensen, 191 Wis. 2d 301, 316, 529
N.W.2d 245 (Ct. App. 1995).
III.
THE PLAINTIFFS HAVE STANDING TO BRING THE DECLARATORY
JUDGMENT ACTION.
A.
Legal Principles For Determining If A Plaintiff Has Standing To Raise
A Claim In A Declaratory Judgment Action.
Wisconsin courts evaluate standing as a matter of judicial policy rather than as a
jurisdictional prerequisite. Foley-Ciccantelli v. Bishop's Grove Condominium Ass'n, Inc., 333
Wis.2d 402, 422, n. 18, 797 N.W.2d 789, 2011 WI 36, ¶ (2011); Milwaukee Dist. Council 48
v. Milwaukee County, 244 Wis. 2d 333, 352 n.7, 627 N.W.2d 866 (2001). The Wisconsin
Supreme Court recently explained the policy underpinnings to the law on standing as
follows:
Standing requirements in Wisconsin are aimed at ensuring that the issues
and arguments presented will be carefully developed and zealously
argued, as well as informing the court of the consequences of its decision.
See Moedern v. McGinnis, 70 Wis. 2d 1056, 1064, 236 N.W.2d 240 (1975)
(“[T]he gist of the requirements relating to standing ... is to assure that the
party seeking relief has alleged such a personal stake in the outcome of the
controversy as to give rise to that adverseness necessary to sharpen the
presentation of issues for illumination of constitutional questions.”); In re
Carl F.S., 2001 WI App 97, ¶ 5, 242 Wis. 2d 605, 626 N.W.2d 330 (2001)
(“The purpose of the requirement of standing is to ensure that a concrete
case informs the court of the consequences of its decision and that people
who are directly concerned and are truly adverse will genuinely present
opposing petitions to the court.”).
McConkey v. Van Hollen, 2010 WI 57, 326 Wis. 2d 1, 783 N.W.2d 855 (footnotes omitted).
3
In accordance with these policies, “the law of standing should not be construed
narrowly or restrictively.” State v. Iglesias, 185 Wis.2d 117, 132, 517 N.W.2d 175 (1994).
Rather, the law of standing in Wisconsin is construed liberally. Fox v. DHSS, 112 Wis. 2d
514, 524, 334 N.W.2d 532 (1983).
In a declaratory judgment action, standing is incorporated into the determination
of justiciability. A declaratory judgment is properly entertained when a controversy is
justiciable. Milwaukee Dist. Council 48 v. Milwaukee County, 244 Wis. 2d 333, 627 N.W.2d
866 (2001). A controversy is justiciable if:
(1) A controversy in which a claim of right is asserted against one who has an
interest in contesting it;
(2) The controversy is between persons whose interests are adverse;
(3) The party seeking declaratory relief has a legal interest in the controversy, i.e.,
a legally protectible interest; and
(4) The issue involved in the controversy is ripe for judicial determination.
Id. “If all four factors are satisfied, the controversy is „justiciable,‟ and it is proper for a
court to entertain an action for declaratory judgment.” Id. Of these four factors, the
defendants‟ motion to dismiss challenges only the third factor, which determines
whether the plaintiff in the declaratory judgment action has standing. See Village of
Slinger v. City of Hartford, 256 Wis.2d 859, 865, 650 N.W.2d 81 (Ct. App. 2002) (“the legal
interest requirement has often been expressed in terms of standing”).
Generally, a litigant must allege facts that demonstrate an actual injury to a
legally protected interest to obtain standing. See State ex rel. First Nat'l Bank v. M & I
Peoples Bank, 95 Wis. 2d 303, 308, 290 N.W.2d 321 (1980). “Even an injury to a trifling
interest” may suffice. Fox, 112 Wis. 2d at 524. Even so, a party seeking declaratory
judgment need not suffer an actual injury before seeking declaratory relief. Milwaukee
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Dist. Council 48 v. Milwaukee County, 244 Wis.2d 333, ¶ 41, 627 N.W.2d 866 2001 WI 65.
The purpose of the Uniform Declaratory Judgments Act is “to allow courts to anticipate
and resolve identifiable, certain disputes between adverse parties…The underlying
philosophy of the [Act] is to enable controversies of a justiciable nature to be brought
before the courts for settlement and determination prior to the time that a wrong has
been threatened or committed.” Putnam v. Time Warner Cable of Southeastern Wisconsin,
Ltd., 255 Wis. 2d 447, ¶44, 649 N.W.2d 626, 2002 WI 108.
“The Declaratory Judgments Act is singularly suited to test the validity of
legislative action, prior to enforcement.” Weber v. Town of Lincoln, 159 Wis.2d 144, 14748, 463 N.W.2d 869, 869 (Ct.App.1990). Wisconsin courts construe standing in
declaratory judgment actions liberally, in favor of the complaining party, as declaratory
judgment affords relief from an uncertain infringement of a party‟s rights. State ex rel.
Village of Newburg v. Town of Trenton, 2009 WI App 139, ¶ 10, 321 Wis.2d 424, 773
N.W.2d 500. Thus, “to have standing to bring an action for declaratory judgment, a
party must have a personal stake in the outcome and must be directly affected by the
issues in controversy.” Lake Country Racquet & Athletic Club, Inc. v. Village of Hartland,
2002 WI App 301, ¶ 15, 259 Wis.2d 107, 655 N.W.2d 189.
Even though standing is not jurisdictional in Wisconsin courts, as it is in federal
courts, Wisconsin courts have drawn from federal cases on standing as a matter of
“sound judicial policy” and apply a similar test. See First Nat’l Bank, 95 Wis. 2d at 308,
n. 5, Fox v. DHHS,112 Wis. 2d 514, 524-25, 334 N.W.2d 532 (1983). Thus, federal cases
discussing standing have persuasive value. See Metropolitan Builders Association of
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Greater Milwaukee v. Village of Germantown, 2005 WI App 103, ¶14, n. 3, 282 Wis.2d 458,
467, 698 N.W.2d 301, citing Wisconsin’s Environmental Decade, Inc. v. PSC, 69 Wis. 2d 1,
11, 230 N.W.2d 243 (1975).
B.
Plaintiff Ramey Has Standing As A Voter To Bring A Declaratory
Judgment Action Challenging The Constitutionality Of 2011 Wisconsin
Act 23.
The defendants contend that Ramey lacks legal standing to challenge Act 23 as a
voter because the complaint does not allege that she “lacks the required identification”
to comply with the voter ID requirement imposed by the act. Def. Brief at 12-13. This
argument misconstrues the constitutional claim raised by the plaintiffs and the legal
interest required to confer standing in a declaratory judgment action.
The legal claim raised in the complaint is that the legislature, by imposing a
requirement that all eligible voters display a specified form of ID before they may
receive a valid ballot, unconstitutionally exceeded its authority under Wis. Const.
Art. III. The plaintiffs do not argue that Act 23 violates the rights only of those citizens
who are presently unable to obtain a governmentally issued photo identification card.
Rather, the plaintiffs assert that Act 23 imposes an unconstitutional qualification to vote
on all eligible voters. Complaint, ¶18. Ramey, as a Wisconsin voter, has a “personal
stake in the outcome” of ensuring that she is not required to comply with this
unconstitutional mandate. She is “directly affected by the issues in controversy,” those
issues being whether Act 23 imposes an unconstitutional qualification on the right to
vote.
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A plaintiff does not have to show that she is unable to comply with an
unconstitutional legal requirement before she has standing to challenge the requirement as
unconstitutional, as the defendants appear to assume. A citizen‟s right to vote without
arbitrary impairment by the state has long been recognized as a legally protected
interest conferring standing. Baker v. Carr, 369 U.S. 186, 208 (1962). An action to protect
a citizen‟s right to vote is sufficient to establish standing because the plaintiff is
asserting a direct and adequate interest in maintaining that right. Id. (holding that
voters who challenged Tennessee apportionment law on behalf of “all voters” of the
state had standing). Ramey, likewise, brings action to protect her right to vote as
conferred by the Wisconsin Constitution.
On similar reasoning, the Eleventh Circuit held that individual voter plaintiffs
who challenged Georgia‟s Voter ID law had standing, comparing the case to one
involving a poll tax:
Requiring a registered voter either to produce photo identification to vote
in person or to cast an absentee or provisional ballot is an injury sufficient
for standing. The inability of a voter to pay a poll tax, for example, is not
required to challenge a statute that imposes a tax on voting, see Harper v.
Va. State Bd. of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 1082, 16 L.Ed.2d
169 (1966), and the lack of an acceptable photo identification is not
necessary to challenge a statute that requires photo identification to vote
in person.
Common Cause/Georgia v. Billups, 554 F.3d 1340, 1351-52 (11th Cir. 2009). See also Harman
v. Forssenius, 380 U.S. 528, 534, n. 6 (1965) (voter who paid poll tax had standing to
challenge the constitutionality of the poll tax).
The defendants may disagree that the ID requirement is unconstitutional, but
such an argument goes to the merits and is premature in determining standing. A
7
court need not decide whether a plaintiff challenging state action relating to voting
rights will ultimately prevail in order to find that the plaintiff has standing to raise the
claim. See Baker, 369 U.S. at 208. Moreover, this is a declaratory judgment action, which
“affords relief from an uncertain infringement of a party‟s rights.” Weber, 159 Wis. 2d at
147-48. Thus, any alleged uncertainty that Ramey‟s rights are infringed by the Act does
not defeat her standing to bring a declaratory judgment action to challenge it.
Ramey need not show actual injury to have standing to raise the claim in a
declaratory judgment action. Rather, she must have a personal stake in the outcome
and be directly affected by the issues in controversy. Ramey has a personal stake in the
legal claim that Act 23 imposes unconstitutional qualifications on her as a voter; she is
directly affected by the issue in controversy. If Act 23 is struck down, Ramey, like other
Wisconsin citizens, will escape an unconstitutional mandate burdening her right to
vote. The fact that the law‟s far-reaching scope threatens the constitutional rights of all
Wisconsin voters does not undermine Ramey‟s individual standing to bring suit.
This is not a case in which a citizen asserts a generalized, unjusticiable grievance
over a legislative policy with which she disagrees but which does not affect her
personally. Rather, Ramey asserts a claim that state legislative action threatens to
infringe her individual right to vote, as conferred by the Wisconsin Constitution. Her
personal interest in the outcome is sufficiently concrete and direct as to ensure that the
constitutional issues raised will be carefully developed and zealously argued. Ramey
has standing to bring this declaratory judgment action to protect her individual
constitutional rights.
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C.
Ramey Has Standing As A Taxpayer To Bring A Declaratory Judgment
Action Challenging The Constitutionality Of 2011 Wisconsin Act 23.
Ramey also has standing as a taxpayer to bring a declaratory judgment action
challenging the constitutionality of Act 23. “Taxpayers' actions have been utilized to
contest the validity of a variety of governmental activities accompanied by expenditure
of public moneys.” Thompson v. Kenosha County, 64 Wis.2d 673, 221 N.W.2d 845 (1974),
citing Columbia County v. Wisconsin Retirement Fund, 17 Wis. 2d 310, 116 N.W.2d 142
(1962). Wisconsin courts have long recognized that:
Any illegal expenditure of public funds directly affects taxpayers and
causes them to sustain a pecuniary loss. This is because it results either in
the governmental unit having less money to spend for legitimate
governmental objectives, or in the levy of additional taxes to make up for
the loss resulting from the expenditure. Though the amount of the loss, or
additional taxes levied, has only a small effect on each taxpayer,
nevertheless it is sufficient to sustain a taxpayer‟s suit.
S.D. Realty Co. v. Sewerage Comm., 15 Wis. 2d 15, 21-22, 112 N.W.2d 177 (1961) (internal
citations omitted). “The fact that the ultimate pecuniary loss to the individual taxpayer
may be almost infinitesimal” does not defeat standing. Id.; Thompson, 64 Wis. 2d at 680.
For a court to determine that a taxpayer has standing to challenge an alleged
unconstitutional law, it is not necessary for the illegal expenditure of public funds
under the unconstitutional state law to result in increased taxation. Thompson, 64 Wis.
2d at 680. In fact, taxpayer standing would not be defeated “even if the illegal
expenditures resulted in a net saving.” Id. n. 9, citing Democrat Printing Co. v.
Zimmerman, 245 Wis. 406, 410, 14 N.W.2d 428 (1944).
9
As alleged in the complaint, Act 23 imposes a host of new requirements on
citizens desiring to exercise the right to vote and on election officials administering
elections. As alleged in the complaint, among other things, Act 23 requires that:

All qualified electors arriving at a polling location to vote must “present to the
officials proof of identification,” as defined in the act, and that the officials must
verify that the photograph appearing on the identification “reasonably
resembles the elector” and that the name on the ID conforms to the name on the
poll list.

Election officials must offer electors who do not present the required photo ID a
provisional ballot, which may be withdrawn and cast as a valid ballot only if the
elector presents an approved photo ID at the polling place before the polls close
or to the municipal clerk by 4 pm on the Friday after the election;

Qualified electors who do not possess a form of ID authorized by Act 23 will, in
advance of an election at which they desire to vote, be required to obtain a valid
ID or they will not be permitted to vote. To obtain a state ID card, an elector
must appear in person at the Wisconsin DMV office and present a variety of
information and documentation of their identity.
Complaint at ¶¶ 12, 13, 17. The complaint does not specifically allege that Ramey, as a
taxpayer, suffered a pecuniary loss (or, because this is a declaratory judgment action
brought prior to enforcement of the law, is threatened with such a loss), due to the
expenditure of public funds to comply with Act 23. Such specificity in pleading is not
necessary for this court, as a matter of sound judicial policy, to determine that Ramey
has standing as a taxpayer.
In holding that three plaintiffs had standing as taxpayers to bring a declaratory
judgment action challenging the constitutionality of a state statute authorizing county
assessor systems, the Wisconsin Supreme Court observed:
Liberally construed…the plaintiffs' complaint stands as a taxpayers' suit to
enjoin illegal governmental expenditure. True, the complaint does not
specifically allege that the plaintiffs, individually or as a class, have
10
suffered any loss; that defect however is not fatal. The allegation that one
taxpayer is suing to vindicate rights of all taxpayers may be implied.
Thompson v. Kenosha Co., 64 Wis.2d at 679 (emphasis added). The court further
explained:
As to the allegation of pecuniary loss, the complaint does state that
plaintiffs are taxpayers and that sec. 70.99, Stats., providing for creation of
a countywide assessor system, is unconstitutional. Under sec. 70.99(12) the
state and the county jointly finance the operation of the system. Thus the
statute does require expenditure of public money, and if the statute were
held unconstitutional, this expenditure would also be illegal. That
sufficiently establishes plaintiffs' pecuniary loss.
Id. at 679-80. See also State ex rel. Wisconsin Senate v. Thompson, 144 Wis.2d 429, 424
N.W.2d 385 (1988) (“we need not consider the absence of any specific allegation in the
petition that [plaintiffs], either individually or as a class, have suffered pecuniary loss,
to be fatal”).
The plaintiffs‟ complaint can be liberally construed as a taxpayer‟s suit to enjoin
illegal expenditures arising from the mandates of an unconstitutional state law. As in
Thompson v. Kenosha Co., the complaint alleges that Ramey is a taxpayer and that Act 23
is unconstitutional. Act 23 imposes numerous new duties on government officials to
check identification at the polls, administer provisional ballots, and issue non-driver
identification cards to citizens who need them to vote, among other things, to
implement the unconstitutional mandate of Voter ID. All of these governmental duties
are publicly funded. These facts are sufficient to establish that Ramey, as a taxpayer, is
threatened with the pecuniary loss of public funds expended for an unlawful purpose
under Act 23. This court should rule, as a matter of sound judicial policy, that Ramey
11
has standing as a taxpayer to bring this declaratory judgment action challenging the
constitutionality of Act 23.
D.
The League Of Women Voters Has Standing As An Association To
Bring A Declaratory Judgment Action Challenging The
Constitutionality Of 2011 Wisconsin Act 23.
The defendants also challenge the LWV‟s standing to bring this declaratory
judgment action. They argue that the LWV‟s mission of advocating for voting rights is
insufficient to establish that the act will injure a protectable interest that the League
itself possesses. Def. Brief at 10. The court should reject this argument. The LWV has
standing to sue on behalf of its members or on its own behalf.
An association may “may stand in the shoes of its members,” i.e., it has standing
to sue if one of its members would have standing. Metropolitan Builders Ass'n of Greater
Milwaukee v. Village of Germantown, 282 Wis. 2d 458, 466, 698 N.W.2d 301 (Ct. App.
2005). The Wisconsin courts have cited as persuasive authority the test used by federal
courts to determine associational standing. Id. That test “allows an association to bring
suit on behalf of its members when (1) the members would otherwise have standing to
sue on their own, (2) the interests the association seeks to protect are germane to the
association's purpose, and (3) neither the claim asserted nor the relief requested requires
the participation of the individual members in the lawsuit.” Id., citing Hunt v.
Washington State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383
(1977). Cf. Wis. Stat. § 184.07 (statute conferring standing on unincorporated nonprofit
associations based on same three-factor test).
12
The LWV has standing to bring a declaratory judgment action challenging the
constitutionality of Act 23 on behalf of its members. The claim that Act 23 exceeds the
legislature‟s constitutional authority to enact laws relating to suffrage is one that a
member of LWV could assert to protect her individual right to vote, as discussed above
with respect to Ramey, a member and current president of LWV. The interests that the
LWV seeks to protect in this action – the right to vote under the Wisconsin Constitution
- are highly germane, indeed, indistinguishable, from LWV‟s organizational purpose of
protecting the right to vote. The third prerequisite of §184.07, while unnecessary in
light of Ramey‟s participation in the case, can also be met. Neither the legal claim
asserted nor the relief requested requires the participation of an individual member of
LWV.
A ruling that the LWV has standing to challenge a state law affecting the right to
vote, as representative of its members, would hardly be unprecedented. Courts in other
jurisdictions have accorded standing to state chapters of the League of Women Voters
in lawsuits brought to challenge state laws affecting voters. See, e.g., League of Women
Voters of Ohio, et al. v. Brunner, 548 F.3d 463 (6th Cir. 2008); League of Women Voters of
Pennsylvania v. Com. 692 A.2d 263 (Pa. Cmwlth. 1997); Thorsted v. Gregoire, 841 F.Supp.
1068 (W.D. Wash. 1994); U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (Ark.
1994); League Of Women Voters v. Eu, 7 Cal.App.4th 649, 9 Cal.Rptr.2d 416 (1992).
In addition, the LWV has standing to sue on its own behalf. The legislature‟s
unconstitutional enactment of a new qualification to vote, in violation of Wis. Const.
Art. III, directly compromises the LWV‟s mission of protecting the fundamental right to
13
vote of Wisconsin citizens and maximizing their opportunities to exercise that right.
The enactment of Act 23 has diverted the LWV‟s scarce resources from its mission of
encouraging full participation by citizens in elections to other efforts – educational
outreach, political advocacy, and legal action -- directed at counteracting the
legislature‟s unlawful action. Thus, the LWV, independent of the interests of its
members, has a stake in the outcome and will be directly affected by the issues in
controversy.
The federal courts have recognized an association‟s interests in protecting its
scarce resources in counteracting an illegal election law as conferring standing. The
Eleventh Circuit held that the NAACP had standing, on its own behalf, to challenge a
Georgia Voter ID law because it was injured by the law:
Because it [NAACP] will divert resources from its regular activities to
educate voters about the requirement of a photo identification and assist
voters in obtaining free identification cards, the NAACP established an
injury sufficient to confer standing to challenge the statute. See Browning,
522 F.3d at 1164. As in Browning, the NAACP “cannot bring to bear
limitless resources” and the diversion of its resources to address the
requirement of a photo identification will cause its “noneconomic goals
[to] suffer.” Id. at 1166. Because we conclude that the NAACP has
standing on its own behalf, we need not address whether it has
associational standing under Hunt v. Washington State Apple Advertising
Commission, 432 U.S. 333, 342, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977).
Common Cause/Georgia, 554 F.3d at 1351. See also Crawford v. Marion County Election
Bd. 472 F.3d 949 (7th Cir. 2007) (granting standing to state democratic party to challenge
state voter ID law, on grounds that “ the new law injures the Democratic Party by
compelling the party to devote resources to getting to the polls those of its supporters
who would otherwise be discouraged by the new law”), Crawford v. Marion County
14
Election Bd. 553 U.S. 181, 128 S.Ct. 1610 (2008) (upholding 7th Circuit‟s ruling on
standing).
LWV, like the NAACP in Common Cause/Georgia, has an institutional interest in
the outcome of this case. The unconstitutional requirements of Act 23 threaten to injury
LWV‟s noneconomic goals of promoting voting and protecting the right to voting, by
diverting LWV‟s resources to address the requirements of photo ID. The threatened
injury or interest needed to confer standing need not be pecuniary. “A variety of
injuries could fulfill the personal stake in the controversy requirement. „The injury
asserted must be such that it gives the plaintiff a personal stake in the outcome of the
controversy. …It may, for example, be an injury to interests that are aesthetic,
conservational, or recreational.” Metropolitan Builders Ass’n of Greater Milwaukee, 282
Wis.2d at 473-74.
This court should rule that the LWV has standing either on behalf of its members
or on its own behalf, given that its organizational purpose is compromised and diverted
by the legislature‟s imposition of unconstitutional new qualifications on the right to
vote.
E.
This Court Need Only Find That One Plaintiff Has Standing.
If one plaintiff has standing, it does not matter whether the others do. Bowsher v.
Synar, 478 U.S. 714, 721, 106 S.Ct. 3181, 3185, 92 L.Ed.2d 583 (1986); Watt v. Energy Action
Educ. Found., 454 U.S. 151, 160, 102 S.Ct. 205, 212, 70 L.Ed.2d 309 (1981); Arlington
Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264 n. 9, 97 S.Ct. 555, 563 n. 9, 50
L.Ed.2d 450 (1977). If LWV has standing to bring the action, either on behalf of its
15
members or on its own behalf, or that Ramey has standing, either as a voter or as a
taxpayer, the declaratory judgment action may proceed.
This court should find that the plaintiffs have standing to bring this declaratory
judgment action on one or more of the bases developed above, as a matter of sound
judicial policy. This case presents an identifiable, certain dispute between adverse
parties who will zealously advocate their positions. There is a justiciable controversy.
Allowing the action to proceed is consistent with the Declaratory Judgment Act‟s
purpose of enabling “controversies of a justiciable nature to be brought before the
courts for settlement and determination prior to the time that a wrong has been
threatened or committed.” Putnam, 2002 WI 108, ¶44.
IV.
GOVERNOR SCOTT WALKER IS PROPERLY NAMED AS A DEFENDANT
IN THIS ACTION.
Defendant Scott Walker contends that the complaint fails to state a claim against
him because he does not enforce or administer the statutes affected by 2011 Wisconsin
Act 23. The remaining defendants do not raise a similar challenge.
In support of his argument that he should be dismissed from the case, defendant
Walker cites a sole case: Deida v. City of Milwaukee, 192 F.Supp.2d 899, 917 (E.D. Wis.
2002). Dieda involved a lawsuit brought in federal court raising federal claims against
Governor Scott McCallum, among others. McCallum asserted sovereign immunity
under the Eleventh Amendment to the U.S. Constitution, which provides that “The
Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.” The present case is
16
brought in state court and involves claims made under the Wisconsin Constitution. The
Eleventh Amendment provides no immunity against state court lawsuits.
Aside from his misplaced reliance on Deida, defendant Scott Walker argues that
the plaintiffs cannot bring suit against him because he is not charged with
administering the statute whose constitutionality is challenged. He argues that “the
proper defendants in a challenge to the Act may include officials who actually
administer and enforce the Act, but do not include Wisconsin‟s Governor, who has no
direct role in enforcing the Act. Governor Walker is the chief executive officer of the
state that enacted the challenged law and does not enforce or administer the Act.” See
Brief at 17.
Defendant Walker‟s argument appears to be based on principles of sovereign
immunity arising from the state constitution. The general rule of sovereign immunity is
that a suit against the state is barred unless the legislature has consented to it. Lister v.
Board of Regents of the Univ. of Wis. Sys., 72 Wis.2d 282, 291, 240 N.W.2d 610, 617 (1976).
An action is against the state when it is “in essence one for the recovery of money from
a state.” Id. at 292, 240 N.W.2d at 617. Declaratory judgments against the state are
barred by principles of sovereign immunity. Id. at 303, 240 N.W.2d at 622-23.
Nonetheless, suit will lie against state officials and agencies alleged to be acting
unconstitutionally or in excess of jurisdictional authority. Id., 240 N.W.2d at 623. As the
Wisconsin Supreme Court has explained:
The court has also recognized that the declaratory judgment procedure is
particularly well-suited (in cases where such relief is otherwise
appropriate) for resolving controversies as to the constitutionality or
proper construction and application of statutory provisions. As a result, it
17
has been necessary to engage in a fiction that allows such actions to be
brought against the officer or agency charged with administering the
statute on the theory that a suit against a state officer or agency is not a
suit against the state when it is based on the premise that the officer or
agency is acting outside the bounds of his or its constitutional or
jurisdictional authority.
Id. (citations omitted).
Wis. Const. Art. V, § 4 confers a constitutional responsibility on the governor to
"take care that the laws be faithfully executed." Thus, defendant Walker is the
constitutional officer responsible for executing the laws duly enacted by the legislature,
including laws relating to elections and voting. In addition, the legislature has assigned
to the governor the duty to review all administrative rules proposed by the
Government Accountability Board to implement election and voting laws. See Wis.
Stat. ch. 227, subch. II (as amended by 2011 Wisconsin Act 21). Under recently enacted
statutory changes, the GAB may take no action to promulgate an administrative rule
until the governor grants express written approval, first of a scope statement prepared
by the GAB proposing to develop an administrative rule.2 Wis. Stat. §227.135(2).
Likewise, the GAB may not submit an administrative rule to the legislature for
legislative review until it receives the governor‟s express written approval of the draft
rule. Wis. Stat. §227.185. The statutes grant the governor unfettered discretion to
approve or deny a draft administrative rule. Id. If the governor‟s approval is not
expressly granted, the proposed rule is a dead letter.
These procedures apply to all state agencies with administrative rulemaking responsibilities, including
the Government Accountability Board. See Wis. Stat. 227.10. For the sake of clarity, the discussion focuses
on the application of these statutory procedures to the GAB.
2
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Chapter 227 thus grants the governor considerable authority with respect to the
administration of voting and election laws. By statute, “no agency may implement or
enforce any standard, requirement, or threshold, including as a term or condition of any
license issued by the agency, unless that standard, requirement, or threshold is
explicitly required or explicitly permitted by statute or by a rule that has been
promulgated in accordance with this subchapter.” Wis. Stat. §227.10(2m). A rule must
be promulgated in accordance with the procedures set out in chapter 227 or it is invalid.
See Cholvin v. Wisconsin Dept. of Health and Family Services, 313 Wis.2d 749, 765-66, 758
N.W.2d 118 (Ct. App. 2008). Consequently, the GAB has no authority to implement or
enforce any standard, requirement, or threshold relating to the new Voter ID provisions
adopted in Act 23, unless the GAB has received the Governor‟s permission to
promulgate an administrative rule.
Defendant Walker is assigned responsibilities by the Wisconsin Constitution to
ensure that the Voter ID law is faithfully executed, and is authorized by statute to
supervise the implementation and administration of the Voter ID law through the
GAB‟s administrative rulemaking. In seeking to enjoin the execution and enforcement
of the Voter ID provisions in the Wisconsin Statutes, as enacted by Act 23, the plaintiffs
have properly named Governor Scott Walker as a defendant in this declaratory
judgment action.
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Dated this 22th day of December, 2011.
CULLEN WESTON PINES & BACH LLP
_______________________________________
Lester A. Pines, SBN 01016543
Susan Crawford, SBN 1030716
122 West Washington Avenue, Suite 900
Madison, WI 53703
Telephone: (608) 251-0101
Facsimile: (608) 251-2883
[email protected]
[email protected]
Attorneys for League of Women Voters of Wisconsin
Education Network Fund, Inc. and Melanie G. Ramey
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