Attorney General of Wisconsin — Opinion
November 3, 2011.
J.B. VAN HOLLEN, Attorney General
Mr. Kevin Kennedy Director and General Counsel Government Accountability Board 212 East Washington Avenue, 3rd Floor Madison, WI 53707
Dear Mr. Kennedy:
QUESTION PRESENTED
¶ 1. You have requested an opinion regarding the scope of a recall election involving the office of the governor. Specifically, you ask whether, in a recall election for governor, there must be an election of governor and lieutenant governor jointly under article V, section 3 of the Wisconsin Constitution, regardless of whether there has been a recall petition for the lieutenant governor under article XIII, section 12 of the Wisconsin Constitution.
SHORT ANSWER
¶ 2. I conclude that article XIII, section 12 of the Wisconsin Constitution requires a separate petition for the recall of each individual incumbent elective officer. A petition for the recall of an incumbent governor under article XIII, section 12(1) requires the filing officer to call a recall election for that incumbent’s office, provided that the terms of article XIII, section 12 have been met. A recall election of a lieutenant governor shall be called only if a petition for recall is filed for that incumbent elected officer. In such a case, voters shall vote separately for that office.
ANALYSIS
¶ 3. Article XIII, section 12 describes the procedure for the recall of “any incumbent elective officer.” Several of its requirements are structured around a singular, individual officer being recalled. A petition for recall must specify the individual officer who is sought to be recalled, permitting electors to petition for the recall of “any incumbent elective officer.” Wis. Const. art. XIII, § 12. Electors seeking recall must file a petition “demanding the recall of the incumbent.” Id. A recall petition may be offered for filing only after the expiration of the first year of the particular officer’s term. Id.
The incumbent officer is an automatic candidate in
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the recall election unless the incumbent officer affirmatively declines. Wis. Const. art. XIII, § 12(4). The number of recall elections is limited for each individual officer: if the elected officer prevails in one recall election, no further petition shall be filed against the officer for the remainder of the term for which the officer was elected. Wis. Const. art. XIII, § 12(6).
¶ 4. The focus of article XIII, section 12 on the individual officer requires that the Government Accountability Board call a recall election only of the officer named in the petition. A petition for the recall of the governor must follow the same rule. Article XIII expressly applies to “any incumbent elective officer” and provides no exception under which a petition for recall of the governor would be treated as requiring a joint recall election of the governor and lieutenant governor. Calling a joint recall election of the two officers would contravene the plain language of article XIII, section 12 and would force electors to vote for the recall of two candidates or none, a result that would deny electors the opportunity to petition for the recall of “any incumbent elective officer” as the Constitution requires.
¶ 5. This conclusion also follows from the language in article XIII indicating that a petition to recall an officer results in only one winning candidate. Under article XIII, section 12(2), a petition compliant with the requirements of section 12(1) causes the filing officer to call a recall election for a certain date. The resulting winner of that recall election is described in the singular: “The person who receives the highest number of votes in the recall election shall be elected for the remainder of the term.” Wis. Const. art. XIII, § 12(5).
¶ 6. Article XIII, section 12 thus contemplates a sequence of events through which a petition for recall results in a single elected candidate. Calling a joint recall election based on the filing of a petition to recall the governor would be inconsistent with that sequence. It would cause a petition to recall the governor to lead to recall elections for two officers and would result in the election of two winning candidates. Article XIII, section 12 prohibits the recall election of multiple candidates based on the filing of a petition for the recall of only one officer.
¶ 7. As you note, in a general election, the governor and lieutenant governor are elected jointly and for the same term. Wis. Const. art. V, §§ 1, 3. You ask whether these provisions require that, following the filing of a petition to recall the governor, the Board must call a joint recall election of both the governor and lieutenant governor. I conclude that the cited article V provisions are inapplicable to a recall election.
¶ 8. Article V, section 1 provides that the governor and lieutenant governor “shall be elected at the same time and for the same term.” Article V, section 3 provides more specifically:
Election. SECTION 3. The governor and lieutenant governor shall be elected by the qualified electors of the state at the times and places of choosing members of the legislature. They shall be chosen jointly by the casting by each
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voter of a single vote applicable to both offices beginning with the general election in 1970.
The phrase “times and places of choosing members of the legislature” refers to the general election. Article IV, section 4 provides that members of the assembly shall be chosen biennially “on the Tuesday succeeding the first Monday of November[.]” Article IV, section 5 provides that senators shall be elected “at the same time and in the same manner as members of the assembly[.]” Article V, section 3 thus applies to those gubernatorial elections that coincide with the partisan general elections at which members of the legislature are elected.
¶ 9. A recall election, in contrast, is scheduled “for the Tuesday of the 6th week after the date of filing the petition or, if that Tuesday is a legal holiday, on the first day after that Tuesday which is not a legal holiday.” Wis. Const. art. XIII, § 12(2). A recall election is not required to coincide with any legislative election. The different scheduling rules for the two procedures illustrate that article V, section 3 does not apply to a recall election under article XIII, section 12.
¶ 10. Further, although article V, section 1 provides that the two officers shall be elected “at the same time and for the same term,” other provisions of the Constitution contemplate that a governor and lieutenant governor will not always continue to hold office jointly. When the lieutenant governor fills a vacancy in the governor’s office caused by the governor’s death, resignation or removal from office, they will not continue to serve jointly. Wis. Const. art. V, § 7(1). The legislature’s impeachment of a governor results in the removal of only the governor, not the lieutenant governor. The lieutenant governor assumes the governor’s office in the event of removal, Wis. Const. art. V, § 7(1), and the lieutenant governor’s exclusion from the court trying the governor’s impeachment, Wis. Const. art. VII, § 1, indicates that the lieutenant governor is not jointly impeached. If a vacancy occurs in the office of the lieutenant governor, the governor continues to serve and appoints a successor to serve the remainder of the lieutenant governor’s term. Wis. Const. art. XIII, § 10(2).
¶ 11. In each of these circumstances, when the vacancy is filled, a governor and lieutenant governor will serve together who were not jointly elected. Importantly, in these scenarios, the new officeholder serves the balance of the unexpired term, not a new term. See Wis. Const. art. V, §7(1); Wis. Const. art. XIII, § 10(2). This is also true with respect to recalls. Wis. Const. art. XIII, § 12(5).
¶ 12. Because the Constitution contemplates a number of circumstances under which a governor and lieutenant governor serve concurrently without being elected jointly, article V, sections 1 and 3 are properly interpreted to provide for the joint election of the two officers only at a general election for a new term. Those circumstances also reinforce the plain language interpretation of article XIII, section 12 applying recall petitions and recall elections only to individual officers.
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¶ 13. In addition, construing article V, section 3 to require a joint recall would require the Board to call a recall election of the governor if only a petition for recall of the lieutenant governor were filed. To require a recall election of an incumbent governor, the chief executive of the state, based on a petition for the recall of the lieutenant governor, an officer with few constitutional duties, would work an absurd result.
¶ 14. The Constitution must be construed to harmonize and give effect to all its provisions. State ex rel. Blockwitz v. Diehl, 198 Wis. 326, 332-33, 223 N.W. 852 (1929); State ex rel. Wausau St. Ry. Co. v. Bancroft, 148 Wis. 124, 136, 134 N.W. 330 (1912); Lumsden v. Cross, 1 Wis. 277 (*317) (1860). In order to give full effect to article XIII, section 12, establishing the right of electors to recall “any incumbent elective officer,” and in light of the application of article V, section 3 only to general elections, I read article V not to apply to a recall election of the governor.
¶ 15. I conclude that, under the Wisconsin Constitution, a petition to recall a governor requires the filing officer to call a recall election of only the governor, not the lieutenant governor. Article XIII, section 12, which focuses on the incumbent officer holding office, permits the electorate to petition for the recall of a single elected officer. A recall election of the lieutenant governor may be called only if a petition is filed for that elected officer. The requirements of article V, that the governor and lieutenant governor be elected jointly and for the same term, do not apply to a recall election conducted under article XIII, section 12. Should petitions for recall meeting the requirements of article XIII, section 12(1) be filed for both the governor and the lieutenant governor, a recall election conforming to the requirements of article XIII, section 12 would be held for each office, not jointly.
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DATE: For the September 12, 2011 Meeting
TO: Government Accountability Board Members
FROM: Kevin J. Kennedy, Director and General Counsel
SUBJECT: Request for Attorney General Opinion on Governor/Lieutenant Governor Recall
Since the onset of the current recall initiatives, the staff has been asked by several individuals to weigh in on how a recall of the Governor would be conducted. The primary issue is the impact on the Lieutenant Governor if a recall is initiated against the Governor. The issue is rooted in the fact that the Wisconsin Constitution provides for the election of the Governor and Lieutenant Governor as a slate in the November general election. However, the Wisconsin Constitution also provides for the recall of an elective officer.
After a review of constitutional and statutory provisions related to recall, election, impeachment, succession and vacancy; and consultation among agency staff; it is our opinion that a recall initiative against the Governor does not include the Lieutenant Governor on the petition. If there is a desire to recall the Lieutenant Governor, it must be done by a separate recall petition containing at least 540, 208 signatures, the same amount required for the Governor and any other statewide elected official.
Because the resolution of this issue has a significant impact on the two elected officials and any person or committee interested in organizing a gubernatorial recall effort; agency staff believes the Attorney General, as the State’s chief legal official, should provide direction to the Government Accountability Board on this issue. Board staff has broached this subject with key officials at the Department of Justice. We have been advised to develop an analysis as part of any request.
Analysis
Question presented: Must a petition to recall the Governor include the Lieutenant Governor to be a valid petition?
Election
In April 1967, the State Constitution was amended to provide for the election of the Governor and Lieutenant Governor on a joint ticket effective for the 1970 General election. Article V, Section 3. The Constitution provides the executive power of the state shall be vested in the Governor and a Lieutenant Governor. Article V, Section 1. Eligibility for the two offices is set out in a single provision. Article V, Section 2. Constitutional references to the terms of the two offices were combined in a subsequent constitutional amendment adopted in April, 1979. This would suggest the two offices are inextricably linked by constitutional design.
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However, the state constitution also has a number of separately detailed provisions related to each office. The powers and duties of the Governor are set out in Article 5, Section 4. There are no constitutionally delineated powers and duties for the Lieutenant Governor. There are specific powers granted to the Governor for pardon (Article V, Section 6) and approving or vetoing bills (Article V, Section 9) which make no mention of the Lieutenant Governor.
The only specific separate constitutional reference to the Lieutenant Governor (Article V, Section 7) describes when the Lieutenant Governor becomes Governor. There is no mention of recall in that provision.
Candidates for Governor and Lieutenant Governor are nominated separately at the partisan primary. Neither winning candidate has a choice about who they are paired with in the November general election. The linking of the election of the Governor and Lieutenant Governor may be primarily an issue of succession in the event of a vacancy in the office of Governor.
Recall
In November 1926, the State Constitution was amended to provide for the recall of elective officers. Article XII, Section 12. This section was amended in April 1981 to provide for a primary election with respect to recall elections. The constitutional recall provisions are directed at a specific elective officer. There is no mention of a joint recall against the Governor and the Lieutenant Governor. All constitutional references to the subject of a recall are singular. Article XIII, Section 12, Subsections (intro), (1), (3), (4), (5) and (6).
Similarly statutory references to recall of an elective official are also singular. Wis. Stats. § 9.10 (1)(a), (b), (c), (d), (s); (2)(b) (c), (d); (3)(b), (bm), (c), (d); (5)(a), (b); (6). The statutory recall provisions are clear that a petition requesting the recall of more than one elected official shall be prepared and filed separately. Wis. Stats. § 9.10 (2)(c). Similarly the recall election of more than one elected official can be held on the same date. Wis. Stats. § 9.10 (5).
In Wisconsin the right to recall an elective official is a political issue, just as the initial election is political. Unlike other states there are no provisions in the Constitution requiring a reason for recall be articulated or evaluated by a court as a basis for commencing a recall effort. The Constitution sets a high threshold for effectuating a recall by requiring signatures equal to 25% of the vote cast for Governor in the preceding election. The Legislature has buttressed this threshold by limiting the time period for gathering signatures to 60 days from the time of registration with the appropriate filing officer.
As a political issue, the recall is targeted at the performance in office of a particular individual. A reasonable person would not impute the policy decisions of the Lieutenant Governor to the Governor as a basis for recalling the Governor. In a recall effort the focus is on the particular officeholder. For municipal offices a reason related to the official responsibilities of the officeholder is required to be listed on the petition. The courts reviewing these reasons have suggested the reason for recall is a decision to be made by the electorate in a recall effort. In re Recall of Certain Officials of City of Delafield, 63 Wis. 2d 362, 372, 217 N.W. 2d 277, 282, (Wis. 1974).
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Removal
An elected official may be removed from office on the basis of his or her actions. The Constitution provides the basis for removal of state officers through impeachment for corrupt conduct in office or for crimes and misdemeanors. Article VII, Section 1. These bases for removal are tied to an individual, not imputed to another official by election on the same ticket. This section specifically contemplates removal of the Governor separately from the Lieutenant Governor by prohibiting the Lieutenant Governor from participating in a removal proceeding. The corresponding statutory provision specifies any civil officer of this state may be removed by impeachment. Wis. Stats. § 17.06 (1). The constitutional and statutory provisions related to removal, like the parallel provisions for recall, are tied to a single officeholder.
Succession
The Lieutenant Governor becomes Governor upon the Governor’s death, resignation or removal from office. Article V, Section 7. There is no constitutional provision that the Lieutenant Governor assumes the office of Governor any other way. It appears the primary reason for electing the two officeholders on the same ticket is to ensure a vacancy in the office of Governor reflects the electoral choice made at the general election. By statute a vacancy in the office of Governor is filled by the Lieutenant Governor. Wis. Stats. § 17.19 (3m). Given succession to the office of Governor is the only constitutionally specified duty for the Lieutenant Governor, it does not follow that the Lieutenant Governor should be joined with the Governor in a recall effort since a recall effort is targeted to the actions of the officeholder not the officeholder’s possible successor.
Vacancy
The statute defining how vacancies are caused does not include recall. Death, resignation, removal and residency are the primary bases for causing a vacancy along with conviction and sentencing for certain specified types of crimes. Wis. Stats. § 17.03. In these cases, it is clear the Lieutenant Governor succeeds to the office of Governor. Under the constitutional and statutory recall provisions, the candidate receiving the most votes is entitled to the office, whether by retention because the incumbent prevailed or election because a challenger was selected by the voters.
Request for Opinion
If the agency has to administer a recall of a statewide officeholder, in this case the Governor, staff believes we should be proactive in addressing any outstanding issues. The Department of Justice represented the agency in 10 separate challenges related to the senatorial recall efforts. The Department of Justice has the authority to issue opinions on questions of law to provide direction for agency actions. Wis. Stats. §165.015 (1). We should avail ourselves of that opportunity.
Conclusion
The agency staff believes a recall effort against the Governor does not include the Lieutenant Governor. An effort to recall the Lieutenant Governor must be done by a separate recall petition. This conclusion is supported by the constitutional and statutory recall provisions which address a single officeholder. The purpose of a recall effort is to hold a particular elected official accountable to the voters. The constitutional provisions related to the Executive officeholders
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focus exclusively on the Governor with the exception of the manner of election, qualifications and length of term. The Lieutenant Governor stands in the shoes of the Governor only in terms of succession to the office due to death, resignation or removal. The Governor is subject to a separate removal proceeding from the Lieutenant Governor and should also be subject to recall efforts separate from the Lieutenant Governor.
Proposed Motion: The Government Accountability Board directs staff to request an opinion of the Attorney General on whether an initiative to recall the Governor must include the Lieutenant Governor or whether the recall of either or both officials must be done separately.
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