The Resolution of Election Disputes: Legal Principles that Control Election Challenges
689 N.W.2d 692
277 Wis.2d 421, 689 N.W.2d 692, 2004 WI App 219
(Cite as: 277 Wis.2d 421, 689 N.W.2d 692)
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Briefs and Other Related Documents
Court of Appeals of Wisconsin.
James LOGIC, Plaintiff-Appellant, [FN†]
FN† Petition for Review Dismissed.
v.
CITY OF SOUTH MILWAUKEE BOARD OF CANVASSERS, Defendant-Respondent,
David Kieck, Intervenor-Respondent.
No. 04-1642.
Submitted on Briefs Oct. 6, 2004.
Opinion Filed Oct. 19, 2004.
Background: Unsuccessful candidate for mayor brought
action contesting recount of city board of canvassers. The
Circuit Court, Milwaukee County, Jeffrey A. Kremers, J.,
dismissed action, for failure to serve notice of appeal on
successful candidate. Unsuccessful candidate appealed.
Holdings: The Court of Appeals, Fine, J., held that:
(1) failure to serve appeal on successful candidate was fundamental defect that deprived circuit court of jurisdiction to
hear vote-recount appeal;
(2) "will of the electorate" rule did not apply; and
(3) service of appeal from recount on city clerk was not effective as to successful candidate.
Affirmed.
West Headnotes
[1] Appeal and Error
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426
[1] Process
48
313k48 Most Cited Cases
Failure to follow statutory requirements in commencing an
action, serving a party, or taking an appeal deprives the
court from which relief is sought of jurisdiction over the action, party, or appeal if the defect of process is "fundamental" rather than merely "technical."
[2] Appeal and Error
320
426
[2] Process
153
313k153 Most Cited Cases
A defect in commencing an action, serving a party, or taking
an appeal is "fundamental" if it defeats the purpose of the
underlying rule.
[3] Elections
305(4)
144k305(4) Most Cited Cases
Failure of unsuccessful mayoral candidate to serve appeal
from recount of city board of canvassers on successful candidate, as was required by statute, was "fundamental" defect
that deprived circuit court of jurisdiction to hear vote-recount appeal, even if success candidate knew about appeal,
and sought and was permitted by circuit court to intervene
in appeal of recount. W.S.A. 9.01(6)(a).
[4] Elections
305(4)
144k305(4) Most Cited Cases
Failure to comply with requirement in statute governing appeals from a recount determination by the board of canvassers that a vote-recount appeal to the circuit court had to be
served "on the other candidates" defeats purpose of statute
and is thus "fundamental." W.S.A. 9.01(6)(a).
[5] Elections
305(4)
144k305(4) Most Cited Cases
Fundamental purpose of statute governing appeals from a
recount determination by the board of canvassers was to
guarantee that "other candidates" had notice of a recount-appeal filed by a candidate, which was a neutral requirement
to which the will-of-the-electorate rule did not apply; no
vote's validity was
affected directly by application of statute's service requirement. 9.01(6)(a).
[6] Elections
227(1)
144k227(1) Most Cited Cases
The "will of the electorate" rule is designed to ensure that an
elector's vote will be counted even though there has been
noncompliance with the election law as long as the defect is
de minimis.
[7] Elections
227(1)
144k227(1) Most Cited Cases
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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