Robins, Ira v. Deininger, David et al

Filing 6

ORDER dismissing this case and denying the motions for injunctive relief and disqualification of the Dept. of Justice. Signed by District Judge William M. Conley on 6/4/2012. (mfh),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

IRA B. ROBINS,
Plaintiff,

OPINION AND ORDER

v.
12-cv-378-wmc
DAVID G. DEININGER, MICHAEL BRENNAN,
GERALD C. NICHOL, THOMAS BARLAND,
THOMAS CANE and TIMOTHY VOCKE,
Defendants,

Plaintiff Ira Robins has brought this action seeking a declaration nullifying the
results of the May 8, 2012 Democratic primary recall election for six elected offices in
Wisconsin and an injunction halting the June 5, 2012 general election for these offices.
After considering Robins’ complaint and attached materials, the court concludes he fails
to state a claim upon which relief may be granted.
Robins, who finished third in the Democratic primary for lieutenant governor,
argues that defendants, members of the state’s Government Accountability Board (GAB),
violated his Fourteenth Amendment due process rights by allowing “protest candidates”
to appear on the Democratic primary ballot even though those candidates were not
actually Democrats.

In support of his claim, Robins asserts that the GAB violated

various Wisconsin statutes by receiving the protest candidates’ nomination papers and
publishing ballots labeling them as Democratic Party candidates despite knowing that
they were actually Republicans. See Wis. Stat. §§ 12.05, 12.13.1

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Robins has also filed a motion to disqualify the Wisconsin Department of Justice from
representing defendants because of “the highly partisan nature of the case and the

To the extent that Robins claim in based on an alleged violation of state statutes,
it fails to state a claim under § 1983; whether a case “involved elections does not matter.”
Kasper v. Bd. of Election Com'rs of City of Chicago, 814 F.2d 332, 341 (7th Cir. 1987).
Nor does Robins raise any other basis for a federal due process claim.

The

Constitution grants states broad power to prescribe the “Times, Places and Manner of
holding Elections for Senators and Representatives,” Art. I, § 4, cl. 1, and this “power is
matched by state control over the election process for state offices.” Wash. State Grange
v. Wash. State Republican Party 552 U.S. 442, 451 (2008).

Therefore, “[o]nly in

extraordinary circumstances will a challenge to a state . . . election rise to the level of a
constitutional deprivation.” Shannon v. Jacobowitz, 394 F.3d 90 (2nd Cir. 2005) (quoting
Curry v. Baker, 802 F.2d 1302, 1314 (11th Cir. 1986)).

Nothing in the complaint

articulates any plausible basis for the drastic remedies Robins seeks. On the contrary, the
State’s decision to accept properly executed nomination papers at face value appears
prudent, since purporting to divine the “true” motives and political allegiance of so-called
protest candidates may well be fraught with its own set of practical and legal questions.
Accordingly, this action will be dismissed for failure to state a claim upon which
relief may be granted, and his motions for injunctive relief and for the disqualification of
the Department of Justice will be denied as moot. See Rowe v. Shake, 196 F.3d 778, 781
(7th Cir. 1999) (court's power to dismiss a case sua sponte “at any time” for failure to
state a claim extends to all suits, brought by prisoners and non-prisoners alike, paid and
unpaid).

Republican affiliation of the Attorney General.” Dkt. 5. While this motion appears
frivolous on its face, the court will deny it as moot in light of its ruling on the merits.
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ORDER
IT IS ORDERED that:
1) This action is DISMISSED for failure to state a claim upon which relief may
be granted.
2) Plaintiff Ira Robins’ motions for injunctive relief, dkt. 1, and for the
disqualification of the Department of Justice, dkt. 5, are denied as moot.
Entered this 4th day of June, 2012.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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