Lawsuit against county on county board size rejected
Winnebago County Circuit Court Judge Bruce Schmidt ruled earlier today on a lawsuit filed by a local citizen group seeking to halve the size of the 38-member county board, essentially rejecting the suit on two grounds.
Citizens United to Transform the Winnebago County Board filed the suit after petitions containing more than 7,000 signatures asking that a referendum to reduce the board size from 38 to 19 be placed in the ballot were rejected by County Clerk Sue Ertmer.
Schmidt also ruled that the court was not the appropriate place for the complaint filed by C.U.T., saying that even if the court had jurisdiction in this matter, Ertmer did not have to accept the petitions because they were turned in after the county board had already voted to cut its size by two members and state law allows only one change in board size between federal census counts. Ertmer had relied on advice from Corporation Counsel John Bodnar and the State Elections Board in rejecting those petitions.
It seems to me this matter is ripe for appeal. Yes, the county board had already voted to reduce itself by two members. But it seems pretty clear to citizens that the board did so in a deliberate attempt to circumvent the group's petition drive efforts and to stop the voters from having more of a say in their government.
It should also be pointed out that despite that vote by the county board, C.U.T. continued its petition drive after being told by a State Legislative Council attorney that "If a County Board has adopted a resolution to reduce the number of County Board Supervisors, but has yet to enact the revised supervisory district plan to implement the reduction, it appears the board may not enact the plan following the filing of a petition to reduce the County Board Size."
The other reason it seems an appeal is in order is because if the court is not an appropriate place for an issue of this nature and magnitude, what is? where does on go for legal redress ir not a court?
It will be interesting to see where this ends up next; or if C.U.T. will bring its efforts to an end for now. I don't know what the right size is for the county board but it seems to me people ought to have the right to decide what it wants in its own county government. Or is our county board just too scared to have happen here what has happened elsewhere, where voters have cut their county boards by significant numbers?
For what it's worth, I hope C.U.T. takes their complaint to the next level.
Citizens United to Transform the Winnebago County Board filed the suit after petitions containing more than 7,000 signatures asking that a referendum to reduce the board size from 38 to 19 be placed in the ballot were rejected by County Clerk Sue Ertmer.
Schmidt also ruled that the court was not the appropriate place for the complaint filed by C.U.T., saying that even if the court had jurisdiction in this matter, Ertmer did not have to accept the petitions because they were turned in after the county board had already voted to cut its size by two members and state law allows only one change in board size between federal census counts. Ertmer had relied on advice from Corporation Counsel John Bodnar and the State Elections Board in rejecting those petitions.
It seems to me this matter is ripe for appeal. Yes, the county board had already voted to reduce itself by two members. But it seems pretty clear to citizens that the board did so in a deliberate attempt to circumvent the group's petition drive efforts and to stop the voters from having more of a say in their government.
It should also be pointed out that despite that vote by the county board, C.U.T. continued its petition drive after being told by a State Legislative Council attorney that "If a County Board has adopted a resolution to reduce the number of County Board Supervisors, but has yet to enact the revised supervisory district plan to implement the reduction, it appears the board may not enact the plan following the filing of a petition to reduce the County Board Size."
The other reason it seems an appeal is in order is because if the court is not an appropriate place for an issue of this nature and magnitude, what is? where does on go for legal redress ir not a court?
It will be interesting to see where this ends up next; or if C.U.T. will bring its efforts to an end for now. I don't know what the right size is for the county board but it seems to me people ought to have the right to decide what it wants in its own county government. Or is our county board just too scared to have happen here what has happened elsewhere, where voters have cut their county boards by significant numbers?
For what it's worth, I hope C.U.T. takes their complaint to the next level.
posted by Cheryl Hentz at 6:20 PM
4 Comments:
Cheryl,
I attended this hearing today, and was impressed with both sides of the case and the judge's ruling.
The issue of jurisdiction came up because the statutes state that grievences regarding these kinds of issues (referendums, petitions, ballots, election officials) must be sought through the SEB, the AG, or the DA before coming to a circuit court. The CUT group argued that this law involving cutting the board was special, and exempt from that, but the judge disagreed.
"...the board did so in a deliberate attempt to circumvent the group's petition drive efforts..." While this appears true, and their actions were perhaps questionable in terms of motivation, it doesn't make it illegal. Obviously the CUT the Board group and the County Board were playing games with each other for months over this. I believe the County Board also passed a resolution calling for the repeal of "Underheim's Law" that opened up this can of worms in the first place because it was a poorly written and poorly thought out law. Underheim's Law allowed CUT the Board to pursue a referendum, but Underheim's Law also allowed a County Board to cut itself - which is what the County Board did. If the law is equally applied, both sides took advantage of it.
There was a great deal of discussion over the point you bring up - is it merely the vote to reduce the board that trumps the referendum, or do they need to finish the job and redistrict. Ultimately the Judge ruled based on the language of Underheim's law (statute 59.10) which states only that "If the number of supervisors in a county is decreased by the board or by petition under this paragraph, no further action may be taken by the board or by petition..." 59.10(3)(cm)3 - it does not state "...is decreased by the board and the board has approved a new district map..." - the Judge stated that the state legislature should be fully aware of the nuances and if it meant the latter would have written the latter into law.
Sorry for the long comment! I've been very interested in this topic and have been following it closely.
Does anyone know if Underheim testified at the hearing --- since he was the "author" you would think he could talk about what was "meant"?
Underheim did not testify. Only the lawyers for the two sides spoke at the hearing.
Babblemur, I understand what you are saying but from what we keep getting told in other matters, places like the AG's office and the like are advisory type opinions only. I know you are keenly aware that this is the message we citizens have heard time and time again when other issues are taken to such places.
Also, it is important to look at those agencies and the amount of time it takes them to investigate something and make a ruling or form an opinion. It took 8 or 9 months for the AG's office to give its decision regarding the Oshkosh Common Council's closed session meeting about Five Rivers. The Oshkosh Northwestern filed its complaint in mid-February; Tony and I filed ours in early March; we all got a joint response the day after the November election. Not exactly what one could call timely or expeditious.
And even if C.U.T. would go one of those routes as Judge Schmidt said, this issue would still likely end up in court anyhow, which is exactly where it was filed initially.
The interesting thing about the law is people on each side of it make arguments that, in many cases, make sense or seem to be supported by the very laws they are trying to follow. The same is true here, as a senior attorney with the State Legislative Council essentially said other steps needed to be taken in order for the county to reject C.U.T.'s petitions and because they weren't, simply voting to reduce the board size by two members was not sufficient.
It also doesn't seem to make sense that the C.U.T. group would take the matter to the State Elections Board since it was the SEB's advice that the county is said to have, at least in part, relied upon in rejecting the petitions in the first place.
I also have to question why C.U.T.'s attorney would file suit in circuit court if it was so obvious that other avenues of redress had to be followed first.
With all due respect to Judge Bruce Schmidt, I still believe this is a matter for the courts to deal with; I believe that's where this will eventually end up; and I think that's why it was filed there to begin with.
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