Thomas J. Crawford (Crawford) filed a complaint against the City of Milwaukee (City), three Milwaukee aldermen and the city treasurer alleging that they violated sec. 11.33, Stats., by enclosing a "special message" in the property tax bills sent to Milwaukee homeowners. Crawford appeals the trial court's dismissal of the complaint for failure to state a claim upon which relief could be granted.
At a November 10, 1983, meeting of the Milwaukee Common Council Committee on Public Information (committee), a representative of Milwaukee mayor Henry W. Maier asked that the committee approve the distribution of a "special message" to be included with property tax bills. The respondents in the instant case, aldermen Daniel Ziolkowski (Ziolkowski), Gregory Gorak (Gorak) and Richard Spaulding (Spaulding), were all members of the committee and were present at the meeting.
The enclosure was titled "A Special Message About Your Tax Bill From Mayor Henry W. Maier and the Milwaukee Common Council ...." The message explained that "circumstances beyond our control" resulted in a 1984 tax increase and attributed the higher taxes to increased spending by the state of Wisconsin. The message also noted that the amount of shared revenue given Milwaukee by the state for property tax relief had been reduced. The message suggested that concerned taxpayers use a toll free number to call the governor or their state legislators.
The parties disagree over whether the city treasurer had notice of the restraining order, but Whittow was not served with the order. The tax bills with the messages were mailed the afternoon of December 14. Crawford filed a complaint alleging violations of sec. 11.33, Stats., and seeking that the City be reimbursed for the cost of printing and distributing the "special message." The trial court dismissed the complaint for failure to state a claim, holding that the complaint was deficient because the message was not distributed for "political purposes" as defined in sec. 11.01 (16), Stats., and because it did not expressly advocate the election or nomination of any individual. Crawford appeals.
In testing the sufficiency of a complaint, the facts pleaded by the plaintiff, and all reasonable inferences therefrom, are accepted as true.
No person elected to state or local office may use public funds for the cost of materials or distribution for 50 or more pieces of substantially identical material after the first day for circulation of nomination papers as a candidate for national, state or local office, until after the date of the election or after the date of the primary election if such person appears as a candidate on a primary election ballot and is not nominated. This section does not apply to answers to communications of constituents.
The interpretation of a statute involves a question of law.
With the above principles in mind, we conclude that sec. 11.33, Stats., is ambiguous. This section could be construed to mean that a public official may not distribute fifty or more pieces of any material once the date for circulation of nomination papers arrives. Such an interpretation would not allow elected officeholders to perform day-to-day duties such as circulation of memos, issuance of paychecks and other necessary tasks. Section 11.33 could also be interpreted as prohibiting distribution
Crawford argues that the trial court erred by interpreting sec. 11.33, Stats., to include the definition of "political purposes" contained in sec. 11.01 (16), Stats., which says in pertinent part:
An act is for "political purposes" when it is done for the purpose of influencing the election or nomination for election of any individual to state or local office, or for the purpose of influencing the outcome of any referendum ....
(a) Acts which are for "political purposes" include but are not limited to:
1. The making of a communication which expressly advocates the election or defeat of a clearly identified candidate or the passage or defeat of a referendum.
Where one of several interpretations of a statute is possible, the court must ascertain legislative intent from the language of the statute in relation to its context, subject matter, scope, history and object intended to be accomplished.
Crawford also argues that the trial court erred in holding that the political purposes standard of sec. 11.01 (16), Stats., requires "express advocacy" of the election or defeat of a clearly identified candidate in order for the complaint to state a claim under sec. 11.33, Stats. The trial court relied on an opinion of the attorney general in reaching the conclusion that "express advocacy" was required by sec. 11.33.
We do not agree that "express advocacy" must be alleged in order to state a claim under sec. 11.33, Stats. Although the allegation of "express advocacy" clearly would state a claim under sec. 11.33, we believe that a lesser standard than express advocacy is sufficient to state a claim under this section.
The trial court relied on 65 Op. Att'y Gen. 145 (1976) which dealt with the effect of the United States Supreme Court's decision in Buckley v. Valeo,
By invalidating campaign spending limits, Buckley sought to protect political candidates' and contributors' constitutional freedoms of expression and speech, but the same concerns are not at issue in sec. 11.33, Stats. Section 11.33 prohibits the use of state funds by incumbents who distribute fifty or more copies of material after the date for filing nomination papers. This section seeks to equalize the election process by limiting the unfair use of state funds by officeholders. The section does not impinge upon officeholders using their own or donated funds for political purposes, only upon the use of state funds. The constitutional freedoms at issue in Buckley and discussed in the attorney general's opinion, which was relied on by the trial court, do not come into play in sec. 11.33. The purpose of sec. 11.33 would be thwarted by requiring express advocacy as the threshold level of political activity. We hold that sec. 11.33 prohibits the use of state funds for "political purposes," which is a lesser standard than "express advocacy," and that a complaint may be stated under sec. 11.33 by alleging that state funds were used to distribute materials for political purposes.
The next question is whether the special message was distributed for "political purposes." In addition to the
We agree that a case-by-case analysis is necessary. Viewing the facts in a light most favorable to Crawford, we hold that the special message was not distributed for a political purpose; therefore, Crawford's complaint was properly dismissed for failure to state a claim. The message stated the reasons for the 1984 property tax increase and it was sent along with the tax bills. The content of the message was largely informational. Although the respondents were all about to seek reelection, their names did not appear on the message. On these facts, it was quite clear that under no circumstances could Crawford recover. The trial court did not err in dismissing the complaint for failure to state a claim upon which relief could be granted.
We expressly reject the City's argument that because the authorization of the special message was an official act, the respondents are immune from liability under sec. 893.80 (4), Stats. Section 893.80 provides that no suit may be brought against the agents or employees of a political corporation for acts done in the exercise of legislative functions. If the respondents were found to have distributed materials for political purposes, the
Crawford also argues that the trial court's interpretation of sec. 11.33, Stats., denied equal protection and due process to nonincumbent candidates for elective office. Crawford argues that the government may not use public facilities to favor one idea over another.
By the Court.—Judgment affirmed.