STATE OF WISCONSIN

CIRCUIT COURT BRANCH

DANE COUNTY

UtI JUN -7 eM 2~91

SENATOR ROBERT COWLES 300 W. St. Joseph Street, Unit 23 Green Bay, WI 54301 Petitioner,

DANE

co. CIRCUIT cau:; 1

Case NO.:1:1C\'Z5!}9 Case Code: 30607

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

COMPLAINT
Pursuant to Wis. Stat. § 9.10(3)(bm), State Senator Robert Cowles ("Senator Cowles"), by his 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 28, 2011 seeking the recall of Robert Cowles, State Senator representing the 2nd 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. § 9.10(3)(bm). 2. Pursuant to Wis. Stat. § 9.10(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 Robert Cowles resides at 300 W. St. Joseph Street, Unit 23, 54301. Senator Cowles represents the 2nd Senate District in the

Green Bay, Wisconsin

Wisconsin State 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 Avenue, Madison,

GAB's principal office is located at 212 East Washington

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

6.

Venue in this action is proper under W~s. Stat. §§ 9. 10(3)(bm) and 801.50(3).

PROCEDURAL
7.

AND FACTUAL BACKGROUND

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) addre~ses 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 oflntent").

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8.

On March 2, 2011, Brian Westphal signed and filed with GAB a Statement of

Intent, by which Mr. Westphal stated his intention to circulate a petition to recall Senator Cowles. 9. The Statement of Intent filed by Brian Westphal identifies Brian Westphal as the

"Recall Petitioner" and Brian Westphal signed the Statement of Intent on the line designated for "Signature of Petitioner." 1O. Brian Westphal 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 Cowles" (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 28, 2011, Brian Westphal offered the Recall Brian Westphal is not one of the two or more persons that make up the Recall

Petition for filing with GAB, seeking the recall of Senator Cowles. 15. On April 28, 2011, GAB notified Senator Cowles that the Recall Committee had

filed a recall petition with GAB on that date. 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. ll-CV-1660. By written order dated

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MayS, 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. 17. On May 6, 2011, Senator Cowles filed with GAB a written challenge to the Recall

Petition. On May 11,2011, the Recall Committee filed a rebuttal to Senator Cowles' challenge. 18. . On May 31, 2011, GAB met and considered the Recall Petition and Senator thereto and verified that the Recall Petition included 23,959 valid signatures.

Cowles'challenge 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 Cowles, collectively with Senators Kapanke, Hopper,

Olsen, Harsdorf and Darling 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 Cowles' 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 Cowles 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, Brian Westphal signed and filed with GAB a Statement of

Intent to Circulate Recall Petition, but did not file a registration statement as required by Wis. Stat. § 9.l0(2)(d). 27. On information and belief, the Recall Committee filed a registration statement

with GAB and appended to it Mr. Westphal's Statement of Intent. Mr. Westphal is not identified anywhere on the Recall Committee's registration statement, despite the fact that Wis. Stat. § ll.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." Mr. Westphal 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 Cowles' 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. Brian Westphal is the recall petitioner with respect to the Recall Petition, and he 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 15,960 valid signatures are required on the Recall

Petition to satisfy the requirement under Wis. Stat. § 9.1 O(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 2nd 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 Robert Cowles 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.

B.

C.

D.

Dated this 11~ day of June, 2011. MICHAEL BEST & FRIEDRICH LLP Attorneys for Senator Robert Cowles

By:

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

fl!lU ELL

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