Judge finds suit against Johnson, Fitzgerald, Tiffany ‘procedurally improper’

By Kim McDarison 

A civil lawsuit brought by 10 citizens, among them two from Jefferson County, seeking a declaratory judgement to disqualify U.S. Sen. Ron Johnson and U.S. Reps. Tom Tiffany and Scott Fitzgerald as candidates running for public office has been found “procedurally improper,” according to a decision filed Friday with the United States District Court Eastern District of Wisconsin and made by Judge Lynn Adelman.  

The court granted a motion, as requested by the defendants, to dismiss the suit on procedural grounds. 

According to the decision, “A voter in an election does not have a direct legal relationship with a candidate for office that may be settled through use of the Declaratory Judgement Act. A voter may oppose candidates in the political arena and choose not to vote for them.” 

Additionally, the document stated: “If a voter believes that a candidate is ineligible for office, he or she may seek legal redress from election administrators. However, a voter may not seek legal relief relating to the candidate’s eligibility for office against the candidate directly.” 

After learning about the ruling, Dan Russler, a resident of Jefferson County and one of the 10 plaintiffs bringing the suit, wrote in an email to  Fort Atkinson Online: “The federal court in Milwaukee ruled against our ability as citizens to initiate a suit. So, the ‘issue regarding standing’ was the key factor …” 

Additionally, he wrote: “I don’t disagree with the order; if the Wisconsin AG had officially examined the legal implications of the incident in the State Capitol in detail, the suit would not have been worth the effort. But now we know that criminal behavior can’t be pursued by ordinary citizens in the courts, at least in relation to politicians.”  

From the ruling 

As outlined in the “Decision and Order” document, 10 Wisconsin citizens filed an action in March against Ronald H. Johnson, Thomas P. Tiffany, and Scott F. Fitzgerald. 

“The defendants are members of Wisconsin’s delegation to the 117th Congress—Johnson is a U.S. Senator, while Tiffany and Fitzgerald are members of the House of Representatives. The plaintiffs do not seek relief against the defendants in their capacities as members of Congress. Instead, the plaintiffs seek relief against them in their capacities as private citizens who are running for reelection to the 118th Congress. According to the plaintiffs, between November 8, 2020, and January 6, 2021, the defendants engaged in or assisted with an insurrection or rebellion against the United States. Section 3 of the Fourteenth Amendment provides that no person who has previously taken an oath to support the Constitution and has engaged in insurrection or rebellion against the Constitution may hold the office of Senator or Representative in Congress (among other offices). The plaintiffs contend that, because the defendants swore an oath to support the Constitution when they were first elected to Congress and, with respect to Tiffany and Fitzgerald, when they were elected to the Wisconsin Legislature, the defendants’ alleged acts of insurrection or rebellion between November 2020 and January 2021 render them ineligible to serve in the 118th Congress. The plaintiffs seek a declaratory judgment under the Declaratory Judgment … establishing these matters. The plaintiffs believe that, if the court issues such a declaration, Wisconsin election administrators will remove the defendants’ names from the ballots for the primary and general elections to be held later this year.” 

In his decision, Adelman wrote: “Because the action will be dismissed on procedural grounds, I express no view on the merits of the plaintiffs’ allegations that the defendants engaged in an insurrection or rebellion against the United States.”

Explaining his findings on procedure, Alelman wrote: “In the present case, it is important to emphasize several prerequisites to a federal court’s entertaining a suit under the Declaratory Judgment Act. First, as previously noted, the court may exercise jurisdiction only if the dispute qualifies as a ‘Case’ or parties’ briefs. Because I am granting the defendants’ motions to dismiss, the motion for expedited discovery will be denied as moot. 

“‘Controversy’ under Article III. Although the case-or-controversy requirement encompasses several legal doctrines, the doctrine most relevant to the present case is that of standing, which consists of three elements. First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not ‘conjectural’ or ‘hypothetical.’ … Second, there must be a causal connection between the injury and the conduct complained of — the injury must be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.’ … Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ …” 

In the document, Adelman found that the plaintiffs did not have standing “because the challenged conduct of the defendants —seeking reelection to public office — does not invade any legally protected interests of the plaintiffs. Second, there is no independent source of federal jurisdiction. Although the plaintiffs seek a ruling on a question of federal law — whether the defendants are ineligible for membership in the 118th Congress by virtue of Section 3 of the Fourteenth Amendment — that question could only be raised against the defendants in their capacities as candidates for office in a proceeding brought under state ballot-access laws. Because the federal issue arises in the context of a state-law claim, there is no jurisdiction under § 1331. Third, even if the presence of the federal issue within the state-law claim could confer federal jurisdiction, here there is no state-law claim that the plaintiffs could bring against the defendants in any court. The claim, if it exists at all, belongs to Wisconsin election administrators, and therefore the plaintiffs have no judicially remediable right that could be affected by issuance of a declaratory judgment. Finally, even if the plaintiffs could bring a private action in state court or in a state administrative agency against the defendants to block their access to the ballot, the present suit for declaratory relief represents an attempt to lift or carve out the Fourteenth Amendment issue from that separate action and obtain an advance ruling on the question of federal law. For all these reasons, the plaintiffs’ complaint must be dismissed.”  

An earlier story about the lawsuit, including the full complaint, is here: https://fortatkinsononline.com/jefferson-county-residents-included-in-suit-filed-to-disqualify-johnson-fitzgerald-tiffany-from-running-in-november/. 

The full “Decision and Order” document is here: http://fortatkinsononline.com/wp-content/uploads/2022/06/22-CV-305-Stencil-et-al-v.-Johnson-et-al-58.pdf.