By Margo Kirchner Twenty Democratic representatives and five senators recently proposed an amendment to the Wisconsin constitution to ban slavery in all forms and circumstances. The state constitution generally prohibits slavery and involuntary servitude, but it includes an exception permitting slavery or involuntary servitude inside prisons: “There shall be neither slavery, nor involuntary servitude in this state, otherwise than for the punishment of crime, whereof the party shall have been duly convicted.” Senate Joint Resolution 95 and Assembly Joint Resolution 102 would strike the exception from the constitution. The table below shows the joint resolution sponsors. A proposed constitutional amendment requires passage by two consecutive legislatures, then ratification of a ballot question by voters. SJR 95 was referred to the Senate’s Committee on Licensing, Constitution and Federalism. AJR 102 was referred to the Assembly’s Committee on Criminal Justice and Public Safety. Without Republican sponsors, and with the Legislature in a frenzy to wrap up its session by March, the chance of a hearing and passage this term is low. If the resolution does not pass this term, it could not go to voters until at least 2027. But grassroots pressure could change that, especially as legislators’ actions now may be considered by voters in the fall. Passage this term and next term would mean a referendum in possibly 2025 or 2026. Call your state legislators to let them know the importance of this bill. Legislators often give their own constituents’ calls and emails more weight than communications from others. Find your legislators HERE. The following legislators are extra important right now, as they sit on the committees to which the bills are assigned. The committee chairs, especially, can control whether the proposed resolutions get to hearing. If your legislator is on this list, please consider calling them as soon as possible to let them know your position. The exception has existed in the constitution since Wisconsin became a state. It tracks a provision in the Northwest Ordinance, which governed the territory before statehood.
Without such a constitutional amendment, Wisconsin lags behind other states—including some southern states—on a full slavery ban. Tennessee and Alabama amended their constitutions in 2022 to eliminate the slavery or involuntary servitude exception. Oregon, Utah, Colorado, Nebraska, and Vermont have all amended their constitutions since 2018. Rhode Island has banned all forms of slavery since the early 1800s. Efforts are underway to amend the constitutions of Kentucky, Georgia, Louisiana, Georgia, Michigan, New Hampshire, Nevada, California, and other states to ban slavery without exception. The U.S. Constitution contains a similar exception in the Thirteenth Amendment. Amending the U.S. Constitution is a lengthy process requiring passage by two-thirds of each house of Congress and ratification by 38 states.
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By Margo Kirchner Wisconsin Justice Initiative on Monday filed a friend-of-the-court brief in the pending redistricting litigation before the Wisconsin Supreme Court, urging the court to pay close attention to the requirement that Wisconsin Assembly districts follow county, town, or ward lines. The Wisconsin Constitution calls for assembly districts “to be bounded by county, precinct, town or ward lines, to be contiguous territory and be in as compact form as practicable.” On Dec. 22, 2023, the Wisconsin Supreme Court held that the maps then in place violated the contiguity requirement. The court then set forth a process for its selection of replacement maps if the Legislature and governor fail to adopt new maps through legislation. Parties to the case filed six sets of proposed maps and supporting materials on Jan. 12, 2024. WJI's brief responds to those proposals. WJI filed the brief together with the Wisconsin Fair Maps Coalition (FMC), an unincorporated coalition of citizen activist groups including the Wisconsin Maps Assessment Project (WIMAP). WIMAP is a team of volunteers from across Wisconsin who love maps and math. During the past few years they have analyzed every statewide redistricting map submitted to the supreme court during litigation or to the People's Maps Commission. In November 2023, WIMAP published Wisconsin Redistricting 2020-2022. WIMAP assessed the six proposed maps submitted to the court and noticed stark differences in compliance with the constitutional requirement that assembly districts follow ward lines. Four maps had zero or just a few "ward splits," while two maps had far more. The constitutional language on following ward lines yields to federal-law requirements regarding districts having generally equal population. In the past, before recent technology advances, courts did not require maps that adhered strictly to the boundary requirement in light of the difficulty in complying with the various federal-law and state constitutional requirements. In its Dec. 22 redistricting decision, for instance, the court noted that it "no longer interpret(s) the requirement to entirely prohibit any splitting of the enumerated political subdivisions." Dissenting from that decision, Justice Brian Hagedorn wrote that “absolute compliance with the ‘bounded by’ clause is impossible given the one-person, one-vote decisions of the United States Supreme Court.” He added that contiguity and avoiding town and ward splits were requirements pitted against each other and might not both be met by proposed maps. WJI and FMC argue in their brief that two of the proposed maps show that with today's technology complete compliance with equal-population, contiguity, and ward-boundary requirements is possible. "Mapmakers have presented this Court with districts that are contiguous, bounded by ward lines, compact as practicable, and more," the brief says. Further, the brief argues that even if the court accepts some ward splits, they should be few and not "gratuitous," as the court itself noted in a prior redistricting case. Two of the submitted maps fail regarding ward splitting, say WJI and FMC in their brief. The map submitted by the individuals who succeeded in the last redistricting litigation in 2021-2022 (known as the Johnson intervenors) contains 13 ward splits, and the map submitted by the Legislature and Republican state senators contains 51 ward splits, per those parties' own counts. "Even citizen math and map enthusiasts like the WIMAP members, who lack the experience and technology of the parties and Court’s consultants, can see that two of the parties—the Johnson intervenors and the Legislature—presented maps with what can be called 'gratuitous' ward splits," the brief says. WJI and FMC urge the supreme court to reject those parties' attempts to downplay the significance of ward splitting. The adopted map should comply with the constitutional requirement that assembly districts not split wards, and the court should reject the Johnson intervenors' and Legislature's maps on this ground, WJI and FMC argue. "Wisconsinites need an end to maps that fail to comply with the Wisconsin Constitution. Mapmakers should create maps that comply with not just parts of it, but all of it. Certain parties in this case have shown that such maps are possible. Ward splits, which previously were thought impossible to avoid, can be avoided," the brief says. "Maps that comport with the “bounded by” clause in the Constitution should be preferred over maps that do not." "Wisconsinites need an end to maps that fail to comply with the Wisconsin Constitution. Mapmakers should create maps that comply with not just parts of it, but all of it. By Margo Kirchner
Wisconsin Justice Initiative and the Wisconsin Fair Maps Coalition (FMC) on Wednesday jointly filed a motion seeking leave to submit an amicus curiae (friend of the court) brief in the redistricting case before the Wisconsin Supreme Court. The case concerns whether the present voting-district maps for the Wisconsin Legislature violate the Wisconsin Constitution’s requirements regarding contiguous districts and separation of powers between the three government branches. Districting maps are to be adjusted every 10 years after census results are published. The present districting maps were adopted by the Supreme Court in spring 2022 after the legislative process failed. Gov. Tony Evers vetoed redistricting maps passed by the Legislature, and the Legislature failed to override the veto. The Wisconsin Supreme Court first adopted a set of maps that were invalidated by the U.S. Supreme Court. The Wisconsin Supreme Court then adopted the same maps from the Legislature that Evers had vetoed. When vetoing those maps, Evers referenced how highly partisan they were. He said he’d promised he would never sign gerrymandered maps and his veto delivered on that promise. In their proposed brief, WJI and FMC argue from the viewpoint of the overwhelming number of Wisconsin citizens who demand nonpartisan district maps and whose voices are not being acknowledged by the Legislature. FMC is an umbrella organization of numerous local and regional fair-maps activist groups. WJI and FMC contend that the court’s adoption of the current maps constituted an impermissible judicial override of Evers’ veto, in violation of separation-of-powers requirements in the state constitution. WJI and FMC further argue that in crafting any new set of maps as a remedy, the court must take into account the partisan effects of those maps and the people’s demand for nonpartisan maps. WJI and FMC argue in their brief that by failing to consider the partisan effects of the maps it chooses, as the court did in 2022, the court actually acts in a partisan manner. Wisconsin Manufacturers & Commerce also seeks leave to file an amicus brief. Notably, WMC states in its motion that it has a “strong interest” in the case because “WMC and its members have forged relationships with the representatives elected pursuant to the current maps” and “(m)embers of WMC have relied on political vows made by those same representatives.” Other individuals and organizations seeking leave to file amicus briefs:
By Margo Kirchner Advocates converged on the Capitol in Madison on Thursday to lobby for an end to life-without-parole sentences for juveniles and a parole opportunity for all juvenile offenders currently sentenced to life or extreme terms of years. Organized by the Wisconsin Alliance for Youth Justice (WAYJ), the lobby day consisted of a panel discussion in the morning and meetings with legislators and legislative staff members during the afternoon. Contemplated legislation would allow someone sentenced to life or a life-equivalent term of years at age 17 or younger to petition for parole after 15 to 20 years, depending on the crime of conviction. The proposed legislation would not release anyone automatically. It would create an opportunity for parole consideration. The petition would go back to the sentencing court for consideration rather than to the parole commission. Supporters discussed the need to provide hope for incarcerated juvenile lifers and motivation for them to make necessary changes in their lives and behavior during custody. Preston Shipp, senior policy counsel at the Campaign for the Fair Sentencing of Youth (CFSY), moderated the panel addressing why Wisconsin should end life-without-parole sentences for juveniles. Shipp noted that 28 states plus the District of Columbia have abolished life-without-parole sentences for youth. Illinois, Minnesota, and New Mexico passed their bans just this year; Texas did so 10 years ago. Shipp noted that the recidivism rate for juvenile lifers released on parole is just 1%. Wisconsin Justice Initiative board member Roy Rogers was one of five panelists. Rogers was sentenced to life and entered adult prison at age 16. Based on eligibility set by his sentencing judge, Rogers became eligible for parole after 26 years. He was granted parole in 2021, after about 28 years in custody. Rogers discussed how his life turned around soon after he entered prison when he joined the “Reach Out” program at Columbia Correctional Institution. He says that the Reach Out redemption group and Jesus Christ saved him. Through the group he began advising other youth on how to avoid the mistakes he made and how to avoid prison. Today, Rogers is a data solutions processor for a marketing experience company as well as a pre-entry and re-entry liaison for The Community, a nonprofit helping to prepare and assist those released from prison in adjusting to life outside. He is also a church musician. He continues to counsel and mentor at-risk youth. Craig Sussek, another panelist, discussed his entry into the Wisconsin prison system as a teenager and his view of himself then as a worthless person with nothing to lose. That outlook led to prison behavior issues. Sussek’s turnaround began when the woman he shot visited the prison to meet him. She told him that he had been a kid who made a bad decision and that she forgave him. She said she believed his life had value that he was worthy. Sussek was released on parole a few years ago. He obtained a job quickly after his release and recently married. He noted how he is on his “third life”: life before prison, life in prison, and life now. Panelist Mary Rezin, whose mother and brother were murdered by two teens in 1999, discussed her advocacy on behalf of the younger teen, who was 16 at the time of the crime. Rezin initially viewed him as a “monster,” but after 16 years of mourning, anger, and depression she contacted a restorative justice program at the University of Wisconsin Law School to see if she could meet with him. The program prepared the two separately for about a year and then facilitated a meeting. Rezin found that he was a changed person, far from the person she remembered or imagined. He had been on drugs and alcohol at the time of the crime and was misled by an 18-year-old as to where they were going and what would happen there. Rezin now advocates for his release. She said she now views him as someone who made bad mistakes as a teenager, as many people do. She believes he has been rehabilitated and that 24 years is enough punishment. Ellie Reid, whose father was murdered by her then-16-year-old brother, discussed the complicated existence of being a victim of a heinous crime as well as a family member of the juvenile lifer who committed it. She discussed how the question needs to be “who has this person become?” Her brother, still in prison, became a welder and trains therapy dogs. Donnell Drinks, leadership development and engagement coordinator for CFSY, rounded out the panel. Drinks, from Pennsylvania, was sentenced to death, which was later reduced to life. He was 17 at the time and spent 27 years in prison before his release, following rehabilitation in prison. He discussed how juveniles in prison can mature into people who can help society, who come out with a purpose and who can help children today avoid bad decisions. Shipp opined that imposing life-without-parole sentences on children places all the blame on the children while taking blame off of society for failing those children. When Shipp asked Rogers and Sussek what they need from the community today, they noted the need for mental health understanding and emotional support. Rogers pointed to his desire for people to ask more than surface questions about his wellbeing. He is trying to do that for those who are getting out of prison. Sussek noted how he and others who have been released from prison “go through things we don’t tell you about.” Following the talk and a lunch break, organizers walked panelists and about 40 attendees through messaging, handouts, and tips for their lobbying efforts. Messaging and handouts included information regarding the end of life-without-parole sentences in other states and the nationwide movement toward treating convicted children differently than adults. Organizers also announced that over the lunch hour Sen. Jesse James (R-Altoona) and Rep. Todd Novak (R-Dodgeville) agreed to sponsor the proposed legislation. Panelists and attendees then spent two hours meeting with legislators and legislative staff in offices at the Capitol. Some system-impacted attendees, visiting the Capitol for the first time, marveled at the building and expressed how they never imagined they would be there. Executive director Margo Kirchner joined Rogers for the WAYJ lobby day on behalf of WJI. In a series of cases, the U.S. Supreme Court has accepted science regarding adolescent brain development and the differences between children and adults regarding impulse control and culpability. The court has pared down the use of life without parole for juveniles and discussed constitutional protections that limit sentencing a child a child to die in custody. For those under age 18, the supreme court has banned the death penalty, life-without-parole sentences for non-homicide crimes, and mandatory life-without-parole sentences. Photographs by Margo Kirchner and Roy Rogers
By Margo Kirchner
A judge today refused to dismiss a challenge to the constitutional bail amendments approved by voters in April 2023. Dane County Circuit Court Judge Rhonda L. Lanford issued her decision from the bench at the end of oral arguments during a Zoom hearing. Plaintiffs EXPO Wisconsin and WISDOM claim that the Wisconsin Legislature failed to follow proper procedure for placing referendum questions on the ballot because the Legislature delivered the questions to the Wisconsin Elections Commission rather than to Wisconsin county clerks. A state statute requires that the Legislature file all proposed constitutional amendments or other referendum questions “with the official or agency responsible for preparing the ballots for the election no later than 70 days prior to the election.” The challenge is about who or what is “the official or agency responsible for preparing the ballots.” If plaintiffs are correct and county clerks are deemed responsible for preparing the ballots, the Legislature missed the 70-day deadline. The parties agree that the Legislature delivered the questions to the Wisconsin Elections Commission 75 days before the April 4, 2023 election, but the county clerks received them only 68 days before the election. Defendants include the Wisconsin Elections Commission and its members and administrator. The Wisconsin Legislature intervened in the case as a defendant. At issue are two ballot questions for amending the state constitution regarding pretrial release and bail. One question asked voters to approve expanded use of conditions imposed on an accused person released before trial. The second question asked voters to allow a court to consider various new factors in imposing cash bail on a person accused of violent crime. A third, advisory, question is challenged as well. That question asked voters whether able-bodied, childless adults should be required to look for work to be eligible for public benefits. Plaintiffs filed their case in January 2023 and sought to keep the questions off the April ballot. Lanford denied the plaintiffs’ motion for temporary restraining order in February, allowing the questions to go to voters. Voters approved the amendments and the advisory question. The plaintiffs seek a declaration that the voting results regarding the questions are invalid and that the state constitution has not been amended. The elections commission and its members argued in their motion to dismiss that the plaintiffs lack standing, that regarding statewide referendum questions the elections commission is the responsible agency for preparing ballots, and that, even if not, strict compliance with the 70-day deadline was not required. The Legislature argued that the court lacks authority to opine on the Legislature’s interpretation and application of the delivery and timing statute—that whether the Legislature complies with its own procedural rule is a matter for the Legislature alone, not the courts. The Legislature then echoed the commission’s arguments that the commission is the proper recipient of statewide referendum questions and that delivery to the commission substantially complied with the statute. The Legislature added that invalidating the results of the election for “what was, at most, a minor procedural error” would be an extraordinary remedy. When deciding a motion to dismiss, a judge must look at the facts alleged in a complaint, assume they are true, and view them in the light most favorable to the plaintiff. Lanford found that “the law does support plaintiffs’ assertions in their brief.” The decision did not address the merits of the proper party for receipt of statewide ballot questions. That issue will be addressed through a motion for summary judgment, with supporting affidavits as evidence. Plaintiffs are to file their motion for summary judgment and supporting materials by Jan. 5, 2024, with full briefing by all parties to be completed by the end of February. Lanford set a hearing on the motion for summary judgment for March 19, 2024. JusticePoint loses court fight to maintain services contract with Milwaukee Municipal Court10/6/2023 By Margo Kirchner
A judge denied JusticePoint’s motion for a preliminary injunction to maintain its contract providing services to low-income individuals facing citations in Milwaukee Municipal Court. Milwaukee County Circuit Judge J.D. Watts issued his ruling in writing after hearing arguments on Thursday afternoon. He stayed his decision for a month to allow JusticePoint time to appeal and ask the court of appeals for a longer stay. JusticePoint has run Milwaukee’s Municipal Court Alternative Services Program (MCAP) since 2015. Some of the organization’s staff have worked on the MCAP for four decades. The goal of the MCAP is to help low-income municipal court defendants comply with alternatives to forfeiture payments (such as community service) and find needed social services like mental health or drug abuse treatment. JusticePoint is paid by the city for running the MCAP; those using the MCAP services pay nothing. In spring 2023, Milwaukee Municipal Court officials told JusticePoint that judges were troubled by how JusticePoint was sharing citations with Legal Action of Wisconsin attorneys who represented municipal court defendants. The citations are public records that the attorneys would be entitled to receive upon request. JusticePoint stated at a public meeting in June that the practice of sharing citations was discussed with city officials years ago and no one objected to it until recently. In May, city officials notified JusticePoint that its contract would terminate effective July 11. The city cited a contract provision allowing termination for “convenience.” Otherwise, the contract would have continued through Dec. 31, 2023, with a remaining one-year renewal allowing extension through 2024. JusticePoint sued the city on July 10, moving for a temporary restraining order and preliminary injunction to keep the contract in place. JusticePoint alleged that the termination on short notice without a right to cure violated the Wisconsin Fair Dealership Law (WFDL). Milwaukee County Circuit Court Judge Hannah Dugan granted a TRO on July 10, keeping JusticePoint’s contract alive until Thursday’s hearing. Attorney Jeffrey Mandell represented JusticePoint at the hearing. Attorney Kathryn Block represented the city. Mandell noted a lack of any evidence submitted by the city regarding the motion and walked through the WFDL statutory provisions and caselaw. Under the WFDL, a dealership exists when a person or entity “is granted the right to sell or distribute goods or services” or use a trademark, and when a “community of interest” exists. Mandell argued that JusticePoint distributes city services to the individuals using the MCAP and that JusticePoint had invested in the program, meeting the definition. Watts questioned Mandell about the lack of financial payment by those using JusticePoint’s services and discussed several cases regarding distribution of services. The city did not dispute that a municipality may be considered the grantor of a dealership under the WFDL. Block instead focused her comments on city contracting requirements. Watts indicated that city rules on contract procurement had no bearing on whether the WFDL applied in the case. After a brief recess, Watts returned to court with a written decision finding that JusticePoint’s relationship with the city was not a dealership under the WFDL. He said that JusticePoint’s argument was “a bridge too far” regarding application of the WFDL. In the written decision Watts found that JusticePoint distributes its own services, not those of the city. “The City did not have these services. The City had to go out and contract with JP to obtain them. The services that JP provided were uniquely JP’s,” he wrote. He also found no community of interest between the parties because JusticePoint received no money from the individuals served. Money it invested in the contract services was done on its own behalf, not on the city’s, he said. Watts set a hearing on Nov. 8 to discuss lifting the stay of his decision if JusticePoint has not appealed and sought a stay from the court of appeals by that date. The stay means that the JusticePoint contract remains in place for another month unless JusticePoint chooses not to appeal. Mandell said he needed to discuss the issue of appeal with his client. Judge Molly Gena did not take office until May 1, 2023, and in a public meeting in June said she was not involved in the decision to terminate JusticePoint’s contract. Milwaukee Municipal Court Administrator Sheldyn Himle stated publicly in June that the decision to terminate the contract was made by the two other Milwaukee municipal judges, Phil Chavez and Valarie Hill. The city in its brief on the motion for preliminary injunction said no other vendor is in place to take over from JusticePoint. The city said it was “confident that another competitive procurement” will draw other vendors and that “[i]n the interim, Judges are able to make direct referrals to social service agencies without the need for a vendor intervening in the process.” By Margo Kirchner
A bill before the Legislature would eliminate the need to find a notary public before filing certain court documents. Under the bill, Senate Bill 29/Assembly Bill 27, a person could submit a court document signed under penalty of perjury, and the document would have the same effect as an affidavit sworn in front of a notary public. The bill aligns Wisconsin law with a federal law in place since 1976 and with laws in other states. The Senate has already passed the bill. It awaits action by the Assembly’s State Affairs Committee. In testimony to the Senate Judiciary and Public Safety Committee in support of the bill, Attorney Thomas Shriner of Foley & Lardner said the bill will create an “inexpensive and convenient” means for submitting evidence in Wisconsin courts and agencies. Shriner testified on behalf of the Wisconsin Judicial Council, which recommended the change. The Uniform Law Commission, a nonprofit and nonpartisan organization advocating for consistent laws across states, also supported the bill before the Senate. The bill, if passed, will simplify submission of evidence for summary judgment motions and other points in civil litigation when affidavits are used as evidence. Attorneys will not have to coordinate getting their clients’ signatures notarized in the midst of meeting a motion deadline, for instance. A person submitting evidence to a court or agency without a notary’s signature and stamp would simply need to write and sign at the end of a document: “I declare under penalty of false swearing under the law of Wisconsin that the foregoing is true and correct.” Attorney Sarah Zylstra of the Boardman Clark law firm told Wisconsin Justice Initiative of the proposed rule's advantages for civil litigation attorneys and clients. The use of the rule in federal courts has shown that sworn declarations “are just as effective as affidavits, but with the benefit of being less costly and much more convenient for witnesses and attorneys,” she said. “It is not always convenient to find a notary to notarize an affidavit, and many notaries charge for their services.” The rule “is particularly important for those in rural areas, those who have transportation challenges, and when documents need to be signed quickly, on an emergency basis,” she said. The bill should make procedures simpler for litigants who represent themselves, too. Having documents notarized is one of many steps that self-represented people must accomplish to file court documents. Mary Ferwerda, executive director of the Milwaukee Justice Center, said in response to questions from Wisconsin Justice Initiative that getting a signature notarized is challenging for many people. “Most banks have a notary public on staff, but not everyone possesses bank accounts, and notary public services may not be available to those without an account. And, while courthouses do have notaries public, many people throughout the state do not live adjacent to a courthouse,” she said. Those who lack transportation or live with disabilities that limit their ability to travel are especially affected, she noted. Plus, when notaries charge for their services, “even nominal sums can be difficult to pay,” said Ferwerda. (Ferwerda takes no position on the pending bill.) If the bill passes, oaths of office, depositions, and real estate documents will still require a sworn statement before a notary. Under Wisconsin law in place since 2009, a declarant who is located outside of the United States is allowed to sign documents under penalty of perjury without finding a notary. The bill would mean that declarants within the United States may do so as well. The bill was introduced by Sens. Van Wanggaard (R-Racine), Joan Ballweg (R-Markesan), and Eric Wimberger (R-Green Bay), and Reps. Ron Tusler (R-Harrison), Nik Rettinger (R-Mukwonago), Jeffrey Mursau (R-Crivitz), Elijah Behnke (R-Oconto) and Marisabel Cabrera (D-Milwaukee). Rep. Darrin Madison (D-Milwaukee) has since signed on as another co-sponsor. The change is part of a move toward uniform laws across the states and is known as the “Uniform Unsworn Declarations Act.” Updated
The 2020 crime victims’ amendment to the Wisconsin Constitution stands. The Wisconsin Supreme Court has rejected Wisconsin Justice Initiative’s challenge to the amendment. WJI challenged the amendment, known as "Marsy's Law," on the grounds that the question put to voters for approval on the April 2020 ballot failed to properly inform them of the amendment’s contents and, in fact, misled them about the elimination of state-law rights of those accused of crimes. In addition, WJI argued, more than one ballot question was needed because the amendment had multiple parts, WJI argued. The Wisconsin Supreme Court disagreed, through a majority decision and multiple concurrences. Justice Brian Hagedorn wrote on behalf of the court. Justice Ann Walsh Bradley dissented. (Details on the decision to follow in a separate blog post.) Attorney Dennis Grzezinski, representing the plaintiffs, responded to the decision. “The trial court, in a careful and well-reasoned decision, had found the ballot question to be inadequate to inform Wisconsin voters of the contents of the amendment, and we were hopeful that that decision would be affirmed by the Supreme Court,” he said. “WJI and the individual plaintiffs are disappointed by the Supreme Court’s decision.” WJI and four individual plaintiffs brought the case in December 2019 and won at the trial-court level. In November 2020, Dane County Circuit Court Judge Frank D. Remington declared that the April 2020 ballot question used to pass what is known as “Marsy’s Law” failed to fully and fairly inform the public of the essential components of the amendment, misstated the contents and impact of the amendment, and improperly encompassed more than one subject, in violation of constitutional requirements. Remington stayed his decision pending appeal, so the changes went into effect. Attorney General Josh Kaul appealed Remington’s decision to District III of the Wisconsin Court of Appeals, located in Wausau. Kaul appealed on behalf of himself, the Wisconsin Elections Commission, its chair, and then-Secretary of State Douglas LaFollette. The case skipped from the Court of Appeals to the Wisconsin Supreme Court on certification by the District III panel of judges. In certifying the appeal, the court of appeals remarked that the case involved “significant questions of state constitutional law, the resolution of which will have a sweeping effect on our criminal justice institutions and those operating within them, including victims, defendants, prosecutors, defense attorneys, law enforcement officials, and our courts.” The Supreme Court heard oral argument on September 6, 2022, and issued its decision on May 16, 2023. “WJI agrees with Justice Ann Walsh Bradley's dissent,” said WJI executive director Margo Kirchner. “The Supreme Court has given the Legislature permission to frame and word referendum questions that leave out important information for voters and even mislead them. The Wisconsin Constitution is the foundation of our state’s laws; changes to it should not occur on the basis of insufficient and misleading ballot questions.” WJI is disappointed with the outcome, but also with how the majority reached it, said Kirchner. The court decided an issue that the parties never argued in the trial court or on appeal. The court threw out the legal standard from a century-old case, which the state defendants did not challenge, and created a new standard. The parties were not asked to re-brief the case under the new standard. During the three years the victims' rights amendment has been in effect, it has created significant challenges for criminal courts and their participants, said WJI president Craig Johnson, a criminal defense attorney and another plaintiff in the case. "Unfortunately, the Court's decision does not fully recognize the chaos and confusion that this amendment has ushered into the day-to-day workings of our criminal courts,” said Johnson. “The amendment is a story of arguably good intentions that produced confusing and unanticipated results.” “Further appeals can be expected, as various aspects of Marsy's Law are challenged in trial courts,” said Johnson. “I don't think we've heard the final verdict on Marsy's Law." In addition to WJI and Johnson, plaintiffs in the case included criminal defense attorney Jerome Buting, attorney Jacqueline Boynton, and former Wisconsin Sen. Fred Risser. By Margo Kirchner Russ Feingold and Peter Prindiville are raising concern about the movement toward a constitutional convention and progressives’ failure to take the movement seriously. The two discussed constitutional amendments and the contents of their book, The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It, with Mike Gousha at an “On the Issues” event at Marquette University Law School on Tuesday. Feingold is president of the American Constitution Society and a former U.S. senator from Wisconsin. Prindiville is a Washington, D.C., attorney and fellow at the Stanford Constitutional Law Center. Article V of the Constitution sets forth two ways to amend the document: (1) a proposed amendment supported by two thirds of both houses of Congress, or (2) “on the Application of the Legislatures of two thirds of the several States,” a convention. Either path requires subsequent ratification by the legislatures or conventions of three-fourths of the states. Since the signing of the Constitution in 1787, only 27 amendments have been ratified, with 10 of those a part of the bill of rights in 1791. As noted by Feingold at the event, there has not been a new proposed and ratified amendment for over 50 years. No constitutional convention has ever occurred. However, state legislatures have been quietly passing applications for one. The Wisconsin Legislature passed a joint resolution in January 2022 calling for a convention to curtail the federal government. Its application for a convention was the subject of a recent dispute between legislators and Secretary of State Doug La Follette about mailing the resolution to federal officials. At the On the Issues event Feingold and Prindiville called any Article V convention dangerous for several reasons. First, the Constitution provides no rules on how such a convention would be held, they said. The Constitution does not clearly state how delegates are appointed, they said. Nor does it indicate what the parliamentary rules would be or whether anything higher than majority vote would be required to pass new language. “There are no rules for this,” Feingold stated, while Prindiville added that there are is no prescribed forum to resolve disputes that may occur—nothing indicates that the Supreme Court would have any involvement, for instance. Feingold and Prindiville pointed out that Article V does not provide for involvement of “We the People.” Delegates could be chosen by legislatures, with no citizen involvement, vote, or approval. Feingold noted that the governor “has nothing to do with this.” It’s just the legislatures, and gerrymandered legislatures may not reflect the will of the people, he said. “There are no rules for this,” Feingold stated. Also, nothing in the Constitution restricts what gets discussed or reworked at a convention. Except as to equal voting in the Senate (specifically noted in Article V), everything could be “on the table” and “fair game,” Feingold and Prindiville said. Nothing in the Constitution provides a means for reining in what gets discussed and decided at a convention, they said.
A “runaway convention” could include lawyers altering language and rights that would have a profound effect, they warned. Prindiville identified as an example possible elimination of federal-court jurisdiction over civil rights cases. Then there is the issue of the groups currently pushing for a convention—groups that Feingold and Prindiville say are well funded and aim to gut the federal government. In addition to state legislatures’ under-the-radar applications for a convention, various groups pushing for a convention have been holding mock events, grooming people to be convention delegates. According to Feingold, the “far right is very good at long-term planning.” Feingold and Prindiville warned that Americans need to take this movement seriously. Progressives cannot assume that Article V will not be used, they said. Article V is in the Constitution and needs to be discussed and debated now, they said. They want to make amending the Constitution a topic of political debate and even discussion at the dinner table. Feingold said that those who may call him alarmist have not learned from history. He pointed to the lack of importance given to the “archaic” Second Amendment for years as an example. To progressives who may support a convention to eliminate the electoral college or proclaim that corporations are not people, Feingold again pointed to the lack of involvement by “the people” in the convention process and the likely control by legislatures and well-funded interest groups. In addition to raising concern about the movement toward a convention, Feingold and Prindiville propose a way forward by altering Article V to make amendment easier and available to the people rather than just legislators. Feingold noted that the U.S. Constitution is one of the hardest to amend, and Prindiville noted that even George Washington admitted that the Constitution as first ratified had flaws. By Margo Kirchner The Wisconsin Court of Appeals said Tuesday the State Supreme Court should decide the fate of the victims’ rights constitutional amendment known as Marsy’s Law that voters approved last year. A District III Court of Appeals panel on Tuesday certified the appeal to the Wisconsin Supreme Court because Wisconsin Justice Initiative’s challenge to the amendment involves “significant questions,” the answers to which “will have a sweeping effect on our criminal justice institutions and those operating within them.” WJI, three individual voters, and Sen. Fred Risser successfully challenged the wording of the ballot question presented to voters for amendment approval. Dane County Circuit Judge Frank Remington ruled in November 2019 that the question failed to fully and fairly inform the public of the essential components of the amendment, misstated the contents and impact of the amendment, and improperly encompassed more than one subject. He stayed his ruling pending appeal, which allowed the question to appear on the ballot. Marsy’s Law, WJI President Craig Johnson said Tuesday, “runs the risk of negatively affecting the constitutional rights of the accused in a way that the original proponents always denied was their intention. Yet that's the stark reality, and voters were never informed about this. The ballot question did not explain the issue fully and fairly, and left people to vote in the dark." Johnson also is an individual plaintiff in the case. The Supreme Court now must choose whether to decide the appeal itself (skipping the Court of Appeals) or tell District III to consider the matter first. The District III panel judges were Lisa K. Stark, Thomas M. Hruz, and Jennifer E. Nashold, who usually occupies a seat on the District IV appeals court. Tuesday’s 20-page explanation of the certification was issued without an identified author. The appeals court said that certification would speed up the important final decision. It would be in the best interests of those involved in the criminal justice system and Wisconsin voters generally “to have a timely and final decision on the sufficiency of the ballot question producing the amendment to our state constitution,” the court wrote. The appeal has been fully briefed before District III since early April 2021. Attorney General Josh Kaul appealed the trial court’s judgment on behalf of himself, the Wisconsin Elections Commission and its chair, and Secretary of State Douglas LaFollette. The defendants chose to venue the appeal in District III. Dennis Grzezinski, lawyer for the plaintiffs, noted the court of appeals’ summary of WJI’s arguments that the ballot question was misleading and legally insufficient, “which led the Circuit Court to rule that the proposed amendments to the Wisconsin Constitution were not validly ratified.” “We look forward to having the Wisconsin Supreme Court address these issues,” said Grzezinski. |
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