STATE OF WISCONSIN

CIRCUIT COURT BRANCH

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Case No.

DANE COUNTY

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SENATOR ALBERTA DARLING 1325 West Dean Road River Hills, WI 53217 Petitioner,

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1.j_CV2596

Case Code: 30607

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WISCONSIN GOVERNMENT ACCOUNTABILITY BOARD 212 East Washington Avenue, Third Floor P.O. Box 7984 Madison, WI 53707-7984 Respondent

THIS IS AN AUTHENTICATED COpy OF THE ORIGINAL DOCUMENT FILED WITH THE DANE COUNTY CLERK OF CIRCUIT COURT. CARLO ESQOEDA CLERK OF CIRCUIT COURT

COMPLAINT Pursuant to Wis. Stat. § 9.l0(3)(bm),

State Senator Alberta Darling ("Senator Darling"),

by her attorneys Michael Best & Friedrich LLP, hereby petitions this Court for a writ of prohibition directing the Wisconsin Government Accountability Board ("GAB") to desist and refrain from calling an election in response to the recall petition that was offered for filing on April 21, 2011 seeking the recall of Alberta Darling, State Senator representing the 8th Senate District (the "Recall Petition"). INTRODUCTION 1. This is an action for judicial review of the sufficiency of the Recall Petition

pursuant to Wis. Stat. § 9.l0(3)(bm). 2. Pursuant to Wis. Stat. § 9.l0(3)(bm), "[w]ithin seven days after [GAB] makes a

final determination of sufficiency or insufficiency of a recall petition ... the petitioner or the officer against whom the recall petition is filed may file a petition for a writ of mandamus or prohibition with the circuit court for the county where the recall petition is offered for filing.

Upon filing of such a petition, the only matter before the court shall be whether the recall petition is sufficient. The court may stay the effect of [GAB's] order while the petition is under advisement and may order [GAB] to revise the election schedule contained in the order if a revised schedule is necessitated by judicial review." PARTIES 3. Petitioner Senator Alberta Darling resides at 1325 West Dean Road, River Hills, Senator Darling represents the 8th Senate District in the Wisconsin State

Wisconsin 53217.

Senate and is the officer against whom the Recall Petition was offered for filing. 4. Wisconsin. Wisconsin. The Wisconsin Government Accountability Board is an agency of the State of GAB's principal office is located at 212 East Washington Avenue, Madison, GAB is the agency responsible for the administration of Wis. Stat. chs. 5 to 12 and GAB is responsible for determining the sufficiency of recall

other laws relating to elections.

petitions offered for filing against state senators. JURISDICTION AND VENUE

5.
801.05(2). 6.

This Court has jurisdiction over this matter under Wis. Stat. §§ 9.10(3)(bm) and

Venue in this action is proper under Wis. Stat. §§ 9.l0(3)(bm) and 801.50(3). PROCEDURAL AND FACTUAL BACKGROUND

7.

Prior to circulating a recall petition, a petitioner must comply with the registration

requirements set forth in Wis. Stat. § 9.10(2)( d) by filing a registration statement with GAB pursuant to Wis. Stat. § 11.05(1) or (2). Wis. Stat. § 11.05(1) addresses the registration of committees and § 11.05(2) addresses the registration of individuals. Wis. Stat. § 9.10(2)(d) further requires the recall petitioner to append to the registration statement a statement indicating his or her intent to circulate a recall petition (a "Statement of Intent").

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8.

On March 2,2011, Naomi Cobb signed and filed with GAB a Statement ofIntent,

by which Ms. Cobb stated her intention to circulate a petition to recall Senator Darling. 9. The Statement of Intent filed by Naomi Cobb identifies Naomi Cobb as the

"Recall Petitioner" and Naomi Cobb signed the Statement ofIntent on the line designated for "Signature of Petitioner." 10. Naomi Cobb has not filed a registration statement with GAB pursuant to Wis.

Stat. § 11.05(2). 11. On February 28,2011, an entity called "Committee to Recall Darling" (the

"Recall Committee") filed a registration statement with GAB pursuant to Wis. Stat. § 11.05(1). 12. The Recall Committee's registration form identified Peter Larson as the Recall

Committee's Treasurer and did not identify any other individuals associated with the Recall Committee. 13. Committee. 14. On information and belief, on April 21, 2011, Naomi Cobb offered the Recall Naomi Cobb is not one of the two or more persons that make up the Recall

Petition for filing with GAB, seeking the recall of Senator Darling. 15. On April 22, 2011, GAB notified Senator Darling that the Recall Committee had

filed a recall petition with GAB on April 21, 2011. 16. The Dane County Circuit Court, Judge Markson presiding, extended various

deadlines set forth in Wis. Stat. § 9.10(3)(b), including GAB's statutory deadline for reviewing the Recall Petition. Dane County Circuit Court Case No. l1-CV -1660. By written order dated May 5, 2011, Judge Markson ordered GAB to file its certificate of sufficiency or insufficiency of the Recall Petition on May 31, 2011, or no later than June 3, 2011.

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17.

On May 5, 2011, Senator Darling filed with GAB a written challenge to the

Recall Petition. On May 12,2011, the Recall Committee filed a rebuttal to Senator Darling's challenge. On May 16,2011, Senator Darling filed a reply to the Recall Committee's rebuttal. 18. On May 31, 2011, GAB met and considered the Recall Petition and Senator

Darling's challenge thereto and verified that the Recall Petition included 22,243 valid signatures. 19. On May 31, 2011, GAB directed its staff to, no later than June 3, 2011, file the

Recall Petition, attach a certificate of sufficiency to the Recall Petition and call a recall election for July 12,2011. 20. On June 1,2011, the Government Accountability Board moved the Dane County

Circuit Court to further extend the deadline for its certification of three recall petitions that were offered for filing on April 21, 2011 against State Senators Hansen, Holperin and Wirch. 21. On June 2,2011, Senator Darling, collectively with Senators Kapanke, Hopper,

Olsen, Harsdorf and Cowles and Recall Dave Hansen, Jim Holperin Recall Committee and Taxpayers to Recall Robert Wirch, moved the Court to order the Government Accountability Board to delay the certification of the sufficiency of any recall petitions offered for filing against Wisconsin State Senators during April 2011 until such time as GAB has completed its review of all nine such recall petitions that have been offered for filing with GAB. Following a hearing on June 3, 2011, Judge Markson denied Senator Darling's motion. 22. On June 3, 2011 following Judge Markson's oral ruling, GAB filed the Recall

Petition and attached a Certificate of Sufficiency and Order, setting the recall election for July 12,2011.

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THE RECALL PETITION IS INSUFFICIENT UNDER WIS. STAT. § 9.10(2)(d) 23. Senator Darling realleges and incorporates by this reference the averments

contained in paragraphs 1 through 22 above. 24. Wis. Stat. § 9. 10(2)(d) states that "no petitioner may circulate a petition for the That same section states that "the

recall of an officer prior to completing registration."

petitioner" must first "file[] a registration statement under s. 11.05(1) or (2)" and "append to the registration a statement indicating his or her intent to circulate a recall petition." Wis. Stat. § 11.05(1) provides for the registration of committees and political groups and § 11.05(2) provides for the registration of individuals. 25. Wis. Stat. § 11.05(5m) states that every registration statement filed under §

11.05(1) or (2) "shall contain a certification signed by the individual filing the statement." 26. On March 2,2011, Naomi Cobb signed and filed with GAB a Statement ofIntent

to Circulate Recall Petition, but did not file a registration statement as required by Wis. Stat. § 9.10(2)(d). 27. On information and belief, the Recall Committee filed a registration statement Ms. Cobb is not identified

with GAB and appended to it Ms. Cobb's Statement ofIntent.

anywhere on the Recall Committee's registration statement, despite the fact that Wis. Stat. § 11.05(3)(f) requires the Recall Committee to specifically identify all of its principal officers in addition to its treasurer. 28. The only individual identified on the Recall Committee's registration statement is

a Mr. Peter Larson. Mr. Larson signed the certification on the Recall Committee's registration, as required of "the individual filing the statement" pursuant to Wis. Stat. § 11.05(5m). Mr.

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Larson also signed seven other registration statements as the treasurer of seven separate purported recall committees. 29. Under Wis. Stat. § 11.01(4) a committee can be either "any person other than an

individual" or "any combination of2 or more persons." Ms. Cobb has not provided GAB with any evidence that he is one of the "2 or more persons" that formed or comprises the Recall Committee, despite having had the opportunity to do so in response to Senator Darling's challenge. 30. The Recall Committee cannot be a recall petitioner because a recall petitioner

must be an individual. Wis. Stat. § 9.10(2)( d) states that each recall effort must be initiated by an individual who indicates "his or her intent to circulate a recall petition" and who ultimately offers the recall petition for filing. Naomi Cobb is the recall petitioner with respect to the Recall Petition, and she has failed to complete the mandatory registration pursuant to § 9.10(2)( d). 31. With respect to the Recall Petition, the sixty-day circulation period set forth in

Wis. Stat. § 9. 10(2)(d) has not commenced. 32. Every signature on the Recall Petition is "dated outside the circulation period"

and, pursuant to Wis. Stat. § 9.10(2)(e)2., may not be counted. 33. GAB has determined that 20,343 valid signatures are required on the Recall

Petition to satisfy the requirement under Wis. Stat. § 9.10(1)(b) that the Recall Petition be signed by electors equal to at least 25% of the vote cast for the office of governor at the last election within the 8th Senate District. 34. 35. The Recall Petition does not include a sufficient number of valid signatures. GAB's June 3, 2011 certification of the Recall Petition's sufficiency is in error.

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WHEREFORE, Senator Alberta Darling requests relief from the Court as follows: A. For an order staying the effect of the Wisconsin Government Accountability Board's June 3, 2011 final determination of the Recall Petition's sufficiency during the pendency of this action; For an order requiring the Wisconsin Government Accountability Board to stay the election schedule related to the Recall Petition during the pendency of this action; For the issuance of a writ of prohibition to the Wisconsin Government Accountability Board commanding GAB to desist and refrain from any further proceedings related to the Recall Petition until further order of the Court; and For such other relief as the Court deems appropriate. day of June, 2011. MICHAEL BEST & FRIEDRICH LLP Attorneys for Senator Alberta Darling

B.

C.

D.

Dated this 7,.1i

BY:ftWJ~
MICHAEL BEST & FRIEDRICH LLP One South Pinckney Street, Suite 700 Post Office Box 1806 Madison, WI 53701-1806 Telephone: 608.257.3501 Facsimile: 608.283.2275

Eric M. McLeod, SBN 1021730 Michael P. Screnock, SBN 1055271

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