Note: We are crunching Supreme Court of Wisconsin decisions down to size. The general rule for WJI's "SCOW docket" posts is that no justice gets more than 10 paragraphs as written in the actual decision, and all parts of the decision (majority, concurrences, dissents) are contained in one post. This one is a little different, though. This time, with this case, we are doing it in three parts: first the majority decision, then the longest dissent, then the remaining two dissents. Why? Because this package of writings is extremely important: redistricting of the Legislature. In addition, the opinions are extremely long—229 pages in all. Due to the size of the opinions, we are giving the majority opinion writer 18 paragraphs and each other opinion writer up to 15. Other than that, the rules remain the same. The "upshot" and "background" sections do not count as part of the paragraph restrictions because of their summary and very necessary nature. We've removed citations from the opinion for ease of reading (except, in this particular case, regarding some dictionary definitions), but may link to important cases cited or information about them. Italics indicate WJI insertions except for case names and emphasis added by the opinion writer, all of which also are italicized. Read part 1 (majority opinion) and part 2 (Ziegler dissent). The case: Rebecca Clarke v. Wisconsin Elections Commission Majority: Justice Jill J. Karofsky (51 pages), joined by Justices Ann Walsh Bradley, Rebecca Dallet, and Janet Protasiewicz Dissents: Chief Justice Annette Kingsland Ziegler (89 pages), Justice Rebecca Grassl Bradley (56 pages plus an appendix of 11 pages), and Justice Brian Hagedorn (22 pages) Grassl Bradley dissent Riding a Trojan horse named Contiguity, the majority breaches the lines of demarcation separating the judiciary from the political branches in order to transfer power from one political party to another. Alexander Hamilton forewarned us that "liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments." With its first opinion as an openly progressive faction, the members of the majority shed their robes, usurp the prerogatives of the legislature, and deliver the spoils to their preferred political party. These handmaidens of the Democratic Party trample the rule of law, dishonor the institution of the judiciary, and undermine democracy. The outcome in this case was preordained with the April 2023 election of a candidate who ran on a platform of "taking a fresh look" at the "rigged" maps. As promised just two days after Protasiewicz's election, petitioners filed this case only one day after she joined the court. The majority chooses contiguity as a convenient conduit by which to toss the legislative maps adopted by this court in 2022 as a remedy for malapportionment, but any issue grounded in state law would suffice in order to insulate the majority's activism from review by the United States Supreme Court. The majority's machinations do not shield it from the Court vindicating the respondents' due process rights, however. Litigants are constitutionally entitled to have their cases heard by a fair and impartial tribunal, an issue of primary importance the majority absurdly dismisses as "underdeveloped." The parties fully briefed the due process claim, which Protasiewicz unilaterally rejected. While this court is powerless to override her recusal decision, the United States Supreme Court is not. The majority's treatment of the remaining issue sophomorically parrots the petitioners' briefing and undermines the rule of law. The Wisconsin Constitution requires assembly districts "to consist of contiguous territory" and senate districts "of convenient contiguous territory." For fifty years, maps drawn by both Republican and Democratic legislative majorities contained districts with detached territory. State and federal courts uniformly declared such districts to be "legally contiguous even if the area around the island is part of a different district." Just last year, three members of the majority in this very case adopted maps containing districts with detached territory. This well-established legal conclusion having become politically inconvenient, the same three justices now deem the existence of such districts "striking." If this creative constitutional "problem" were so glaringly obvious, then the attorneys who neglected to raise the issue over the last five decades committed malpractice, and the federal and state judges who adopted maps with districts containing detached territory should resign for incompetency. No one is fooled, however. The members of the majority refashion the law to achieve their political agenda. The precedent they set (if anything remains of the principle) devastates the rule of law. The Wisconsin Constitution commands redistricting to occur once every ten years. Both state and federal courts have always respected "the command in the Wisconsin Constitution not to redistrict more than once each 10 years." The majority's machinations in this case open the door to redistricting every time court membership changes. A supreme court election in 2025 could mean Clarke (this case) is overturned, Johnson (the court’s prior redistricting case, with three decisions known as Johnson I, Johnson II, and Johnson III) is restored, and new maps adopted. In 2026 or 2027, Johnson could be overturned (again), Clarke resurrected, and new maps adopted. This cycle could repeat itself in 2028. And in 2029. And in 2030. *** Upon completion of the 2020 census, the governor vetoed the redistricting plans passed by the legislature, so the court in Johnson enjoined the 2011 legislative maps that had become unconstitutionally malapportioned due to population shifts. Political impasse left the judiciary as the only branch able to act. There is absolutely no precedent for a supreme court to enjoin its own remedy one year later. Perhaps if the majority focused on studying the law rather than rushing to set its political machinations on a ridiculous fast track, it would avoid such embarrassing errors. *** Every party in Johnson stipulated before we decided Johnson I that the contiguity requirements under Article IV, Sections 4 and 5 of the Wisconsin Constitution permit municipal islands detached from their assigned districts. We agreed. So did the dissenters. Every party—including the Governor—submitted maps containing municipal islands. A majority in Johnson II, selected the Governor's proposed legislative maps, municipal islands and all; three justices in this current majority blessed those maps as constitutional. *** After the court decided Johnson I, the Governor, or any other petitioner who participated in the case, could have filed a motion for reconsideration on contiguity, asking the court to correct the allegedly flagrant constitutional error somehow repeatedly overlooked by countless lawyers, federal judges, and justices of this court for five decades. To no one's surprise, they instead waited for the Clarke petitioners to file this suit immediately after the makeup of the court changed, courtesy of an election bought and paid for by the Democratic Party of Wisconsin. *** Grassl Bradley then discusses how the majority misused dictionary definitions regarding the meaning of “contiguous.” The majority does not seem to recognize the limits of dictionaries, or the importance of acknowledging and weighing different definitions. The majority resorts to fabrication with its obviously false claim that all dictionaries define the term "contiguous" the way the majority prefers. The remarkable power to declare something unconstitutional—and forever remove it from democratic decision making—should be exercised carefully and with humility. The majority's drive-by dictionary citations exhibit a slipshod analysis. *** If the current maps were unconstitutional, the only proper exercise of this court's power would be a remedy that respects the legislature's and the governor's constitutionally prescribed roles in the redistricting process. If the members of the majority were acting as a court rather than a super legislature of four, they would modify the maps only to the extent necessary to comply with the law. Specifically, if the majority wished to remedy only detached municipal islands, as it professes, it would adopt the respondents' proposal and redraw only those districts containing detached territory. The majority refuses to do so, with nothing more than a single sentence explanation in which the majority says a more modest remedy would "cause a ripple effect across other areas of the state" so new maps are "necessary." The majority offers zero support for this conclusory assertion because none exists. The majority instead dispenses with the existing maps in order to confer an advantage on its preferred political party with new ones. *** The majority abandons the court's least-change approach adopted in Johnson I in order to fashion legislative maps that "intrude upon the constitutional prerogatives of the political branches and unsettle the constitutional allocation of power." The least-change approach in Johnson I guaranteed the court would ground any reapportionment decisions in the law alone, leaving the political decisions of redistricting to the political branches where they belong. The majority's decision to discard the judicially restrained methodology of Johnson I unveils its motivation to redraw the legislative maps for the benefit of Democratic state legislative candidates. By design, the majority's transparently political approach will reallocate political power in Wisconsin via a draconian remedy, under the guise of a constitutional "error" easily rectified by modest modifications to existing maps. *** As the respondents proposed, any contiguity violation could be remedied by simply dissolving municipal islands into their surrounding assembly districts. The majority dismisses the idea without explaining why the maps must instead be redrawn in their entirety. To say the quiet part out loud, confining the court's remedy to districts with municipal islands would deprive the majority of its desired political outcome. Its overreach flouts not only Johnson I but also black-letter law limiting the judiciary's remedial powers. *** Buried at the end of its opinion, the majority identifies "partisan impact" as the fifth and last "redistricting principle" it will consider in reallocating political power in this state. Its placement disguises the primacy this factor will have in the majority's schemes. The majority neglects to offer a single measure, metric, standard, or criterion by which it will gauge "partisan impact." Most convenient for the majority's endgame, there aren't any, lending the majority unfettered license to design remedial maps fulfilling the majority's purely political objectives. In considering "partisan impact," the majority acts without authority. Unlike other state constitutions, "[n]othing in the Wisconsin Constitution authorizes this court to recast itself as a redistricting commission in order 'to make [its] own political judgment about how much representation particular political parties deserve——based on the votes of their supporters——and to rearrange the challenged districts to achieve that end.'" "The people have never consented to the Wisconsin judiciary deciding what constitutes a 'fair' partisan divide; seizing such power would encroach on the constitutional prerogatives of the political branches." *** Redistricting is the quintessential "political thicket." We should not decide such cases unless, as in 2021, we must. In this case, we need not enter the thicket. Unlike the majority, I would not address the merits. A collateral attack on a supreme court judgment, disguised as an original action petition, would ordinarily be dismissed upon arrival. Allowing petitioners' stale claims to proceed makes a mockery of our judicial system, politicizes the court, and incentivizes litigants to sit on manufactured redistricting claims in the hopes that a later, more favorable makeup of the court will accept their arguments. The doctrines of laches and judicial estoppel exist to prevent such manipulation of the judicial system. Hagedorn dissent No matter how today's decision is sold, it can be boiled down to this: the court finds the tenuous legal hook it was looking for to achieve its ultimate goal—the redistribution of political power in Wisconsin. Call it "promoting democracy" or "ending gerrymandering" if you'd like; but this is good, old-fashioned power politics. The court puts its thumb on the scale for one political party over another because four members of the court believe the policy choices made in the last redistricting law were harmful and must be undone. This decision is not the product of neutral, principled judging. The matter of legislative redistricting was thoroughly litigated and resolved after the 2020 census. We adopted a judicial remedy (new maps) and ordered that future elections be conducted using these maps until the legislature and governor enact new ones. That remedy remains in place, and under Wisconsin law, is final. Now various parties, new and old, want a mulligan. But litigation doesn't work that way. Were this case about almost any other legal matter, the answer would be cut-and-dried. We would unanimously dismiss the case and reject this impermissible collateral attack on a prior, final decision. So why are the ordinary methods of deciding cases now thrown by the wayside? Because a majority of the court imagines it has some moral authority, dignified by a black robe, to create "fair maps" through judicial decree. To be sure, one can in good faith disagree with Johnson's holding that adhering as closely as possible to the last maps enacted into law—an approach called "least change"—is the most appropriate use of our remedial powers. And the claim here that the constitution's original meaning requires the territory in all legislative districts to be physically contiguous is probably correct, notwithstanding decades of nearly unquestioned practice otherwise. But that does not give litigants a license to ignore procedure and initiate a new case to try arguments they had every opportunity to raise in the last action, but did not. Procedural rules exist for a reason, and we should follow them. As we have previously explained, "Litigation rules and processes matter to the rule of law just as much as rendering ultimate decisions based on the law. Ignoring the former to reach the latter portends of favoritism to certain litigants and outcomes." Indeed it does. The majority heralds a new approach to judicial decision-making. It abandons prior-stated principles regarding finality in litigation, standing, stare decisis, and other normal restraints on judicial will—all in favor of expediency. But principles adopted when convenient, and ignored when inconvenient, are not principles at all. It is precisely when one's principles are tested and costly—yet are kept nonetheless—that they prove themselves truly held. The unvarnished truth is that four of my colleagues deeply dislike maps that give Republicans what they view as an inappropriate partisan advantage. Alas, when certain desired results are in reach, fidelity to prior ideals now seems . . . a bit less important than before. No matter how pressing the problem may seem, that is no excuse for abandoning the rules of judicial process that make this institution a court of law. The majority's outcome-focused decision-making in this case will delight many. A whole cottage industry of lawyers, academics, and public policy groups searching for some way to police partisan gerrymandering will celebrate. My colleagues will be saluted by the media, honored by the professoriate, and cheered by political activists. But after the merriment subsides, the sober reality will set in. Without legislative resolution, Wisconsin Supreme Court races will be a perpetual contest between political forces in search of political power, who now know that four members of this court have assumed the authority to bestow it. A court that has long been accused of partisanship will now be enmeshed in it, with no end in sight. Rather than keep our role in redistricting narrow and circumspect, the majority seizes vast new powers for itself. We can only hope that this once great court will see better days in the future. I respectfully dissent. *** (T)he majority falls woefully short in supporting its conclusion that the parties met the requirements for standing. "Standing is the foundational principle that those who seek to invoke the court's power to remedy a wrong must face a harm which can be remedied by the exercise of judicial power." Courts do not have the power to "weigh in on issues whenever the respective members of the bench find it desirable." As three members of today's majority have previously opined, "standing is important . . . because it reins in unbridled attempts to go beyond the circumscribed boundaries that define the proper role of courts." *** The Governor's legal positions throughout this redistricting litigation saga are astonishing; any other litigant in any other lawsuit would be promptly dismissed from the case. In Johnson, the Governor initially argued that the constitution's contiguity requirement mandated physical contiguity, just like the petitioners argue in this case. Then, the Governor changed course and agreed with all the other parties that keeping municipalities together did not violate the contiguity requirement. We agreed and so held, and invited map proposals consistent with our decision. The Governor then submitted proposed remedial maps with municipal islands—the very thing the Governor now argues violates the constitution! And in briefing regarding the other map proposals, which also contained municipal islands, the Governor never questioned their legality—even though he was invited to address any and all legal deficiencies in those proposals. *** The Governor's flip-flopping is classic claim preclusion. The Governor came before this court to litigate how to remedy malapportionment; argued that contiguity permits municipal islands; submitted maps (that this court initially adopted) containing dozens of municipal islands; and now, in a subsequent action, complains that this court's remedy violated the constitution because its map contained municipal islands. This argument was litigated in Johnson. And even if it wasn't, it obviously could have been litigated. If the legislature's proposed maps that we ultimately adopted violated the contiguity requirements, the Governor could have said so. He did not; no one did. The Governor is barred by claim preclusion from litigating the issues before us again. *** Given this, I do not see how the court can bypass the voter standing problems by relying on the Governor's purported authority to challenge a districting plan. Even if the Governor has standing to litigate on behalf of Wisconsinites to ensure a districting plan complies with the constitution, this does not end the matter. The question the majority must answer—but does not—is whether the Governor has the right to litigate on behalf of Wisconsin voters over and over again, taking different positions each time, until he gets the result he wants. The ordinary application of claim preclusion prohibits the Governor from relitigating the issues he either raised or could have raised during the last litigation. The majority's standing decision—resting on a party that should be dismissed——once again looks like an outcome in search of a theory. Next, the majority ignores the impropriety of the court issuing an injunction on our own injunction. The majority enjoins the Wisconsin Elections Commission from using the legislative maps that we, just 20 months ago, mandated they use. I've never seen anything quite like it. The general rule is that judgments—and injunctions along with them—are final and, absent fraud, cannot be collaterally attacked. This case is exactly that—an impermissible collateral attack on a prior, final case. The majority's response is that courts regularly modify prior injunctions in redistricting cases without reopening old cases. This is true, but only because there is an intervening event every ten years: the U.S. Census. And following completion of the census, the constitution requires that population shifts be accounted for afresh. So when courts issue a new injunction in new redistricting cases, they do so because the law provides that every districting plan, whether adopted by a court or the legislature, must be updated following the census. That is not the case here. *** (T)he majority says "partisan impact" will guide its decision in selecting new remedial maps. But what does this mean? Should the maps maximize the number of competitive districts? Should the maps seek to achieve something close to proportionate representation? Should the maps pick some reasonable number of acceptable Republican and Democratic-leaning seats in each legislative chamber? I have no idea, and neither do the parties. The court nonetheless invites the submission of maps motivated by partisan goals, just as the petitioners hoped. And with a certain amount of gusto, the majority insists it is being neutral by openly seeking maps aimed at tilting the partisan balance in the legislature. The court announces it does not have "free license to enact maps that privilege one political party over another," all the while obliging the wishes of litigants who openly seek to privilege one political party over another. The irony could not be any thicker. The court does not provide any meaningful guidance to the parties on how to satisfy its "political impact" criteria. No standards, no metrics, nothing. Instead, it appears the majority wishes to hide behind two "consultants" who will make recommendations on which maps are preferable. Those consultants will presumably use some standards to make this kind of judgment,14 but the majority will not permit them to be subject to discovery or witness examination.15 Like the great and powerful Oz, our consultants will dispense wisdom without allowing the parties to see and question what is really behind the curtain. And at the end of this, the consultants will offer options from which the court can choose. This attempt at insulating the court from being transparent about its decisional process is hiding in plain sight. The court also fails to interact with the constitutional requirement that districts "be bounded by county, precinct, town or ward lines." Currently, districts that are not physically contiguous are that way because the legislature (and courts) have attempted to comply with the requirement that counties, towns, and wards not be split—thus, keeping municipal islands in the same legislative district as the rest of the municipality. The court now determines that strict compliance with contiguity is required, but it ignores how that may be in tension with the equally required constitutional command to keep county, town, and ward lines sacrosanct. While absolute compliance with the "bounded by" clause is impossible given the one-person, one-vote decisions of the United States Supreme Court, a return to a more exacting constitutional standard would likely prohibit running districts across county lines, or breaking up towns or wards (of which municipalities are composed) unless necessary to comply with Supreme Court precedent. This could conflict with strict physical contiguity. *** Although this litigation is not yet over, it is clear to me that the Wisconsin Supreme Court is not well equipped to undertake redistricting cases without a set of rules governing the process. In (a prior case), this court recognized the need for special procedures governing future redistricting cases. We received a rule petition seeking to do exactly that prior to Johnson, but this court could not come to an agreement about what such a process would look like or whether we should have one. I believed then, and am now fully convinced, that some formalized process is desperately needed before we are asked to do this again.
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Note: We are crunching Supreme Court of Wisconsin decisions down to size. The general rule for WJI's "SCOW docket" posts is that no justice gets more than 10 paragraphs as written in the actual decision, and all parts of the decision (majority, concurrences, dissents) are contained in one post. . This one is a little different, though. This time, with this case, we are doing it in three parts: first the majority decision, then the longest dissent, then the remaining two dissents. Why? Because this package of writings is extremely important: redistricting of the Legislature. In addition, the opinions are extremely long—229 pages in all. Due to the size of the opinions, we are giving the majority opinion writer 18 paragraphs and each other opinion writer up to 15. Other than that, the rules remain the same. The "upshot" and "background" sections do not count as part of the paragraph restrictions because of their summary and very necessary nature. We've removed citations from the opinion for ease of reading (except, in this particular case, regarding some dictionary definitions), but may link to important cases cited or information about them. Italics indicate WJI insertions except for case names and emphasis added by the opinion writer, all of which also are italicized. The case: Rebecca Clarke v. Wisconsin Elections Commission Majority: Justice Jill J. Karofsky (51 pages), joined by Justices Ann Walsh Bradley, Rebecca Dallet, and Janet Protasiewicz Dissents: Chief Justice Annette Kingsland Ziegler (89 pages), Justice Rebecca Grassl Bradley (56 pages plus an appendix of 11 pages), and Justice Brian Hagedorn (22 pages) The Ziegler dissent This deal was sealed on election night. Four justices remap Wisconsin even though this constitutional responsibility is to occur every ten years, after a census, by the other two branches of government. The public understands this. Nonetheless, four justices impose their will on the entire Assembly and half of the Senate, all of whom are up for election in 2024. Almost every legislator in the state will need to respond, with lightning speed, to the newly minted maps, deciding if they can or want to run, and scrambling to find new candidates for new districts. All of this remains unknown until the court of four, and its hired "consultants," reveal the answer. The parties' dilatory behavior in bringing this suit at this time should not be rewarded by the court's granting of such an extreme remedy, along such a constrained timeline. Big change is ahead. The new majority seems to assume that their job is to remedy "rigged" maps which cause an "inability to achieve a Democratic majority in the state legislature." These departures from the judicial role are terribly dangerous to our constitutional, judicial framework. No longer is the judicial branch the least dangerous in Wisconsin. Redistricting was just decided by this court in the Johnson litigation (the court’s redistricting litigation in 2021 and 2022). This court was saddled with the responsibility to adopt maps because the legislative and executive branches were at an impasse, and absent court action, there would be a constitutional crisis. As a result of Johnson, there are census-responsive maps in place. Nonetheless, the four robe-wearers grab power and fast-track this partisan call to remap Wisconsin. Giving preferential treatment to a case that should have been denied, smacks of judicial activism on steroids. The court of four takes a wrecking ball to the law, making no room, nor having any need, for longstanding practices, procedures, traditions, the law, or even their co-equal fellow branches of government. Their activism damages the judiciary as a whole. Regrettably, I must dissent. The court of four's outcome-based, end-justifies-the-means judicial activist approach conflates the balance of governmental power the people separated into three separate branches, to but one: the judiciary. Such power-hungry activism is dangerous to our constitutional framework and undermines the judiciary. When four members of this court "throw off constraints, revise the rules of decision, and set the law on a new course," it is prudent for all of us to "question whether that power has been exercised judiciously" or whether it is instead an exercise in judicial activism. Today is the latest in a series of power grabs by this new rogue court of four, creating a pattern of illicit power aggregation which disrupts, if not destroys, stability in the law. *** Unfortunately, this latest unlawful power grab is not an outlier, but is further evidence of a bold, agenda-driven pattern of conduct. To set the stage, recall that these four members of the court came out swinging, when they secretly and unilaterally planned and dispensed with court practices, procedures, traditions, and norms. Preordained and planned even before day one of the new justice's term on August 1, 2023, but unknown to the other members of the court, the four acted to aggregate power, meeting in secret as a "super-legislature." They met behind closed doors, at a rogue, unscheduled and illegitimate meeting, over the protestations of their colleagues, in violation of longstanding court rules and procedures. Even before day one of the newest justice's term, and before the court term started in September, they met, in secret, to carry out their plan, only known to them, to dispense with over 40 years of court-defined precedent. They even took the unprecedented action to strip the constitutional power of the chief justice, which had been understood for decades of chief justices and different court membership, instead usurping that role through an administrative committee. For nearly four decades and five chief justices, every member of the court had respected the power the people of Wisconsin constitutionally vested in the chief justice to administrate the court system. *** (J)ust last year in Johnson, the court determined, and all agreed, that the maps complied with the contiguity requirement. "Contiguity for state assembly districts is satisfied when a district boundary follows the municipal boundaries. Municipal 'islands' are legally contiguous with the municipality to which the 'island' belongs." Even the parties now arguing that the maps are not contiguous recognize that the contiguity requirement has been deemed satisfied not only in the maps the parties submitted in the Johnson litigation, but also in the maps the state has relied on for the last 60 to 70 years. Moreover, every person who wished to have a say or participate in the Johnson litigation was welcome to do so and did. No one sought reconsideration of the Johnson litigation while it was within their power to do so. Johnson went all the way to the United States Supreme Court and back. Some of the litigants now were part of the Johnson litigation, some chose not to engage. But the law imposes consequences for those who choose to sit out of litigation entirely, and for those who stipulate to or do not make an argument in litigation. Finality of litigation does not endow one with the authority to wait to see what happens in that litigation cycle, forego timely filing a motion for reconsideration, and then bring arguments years after the fact, with the only intervening change being the court's composition. Four members of this court choose to not let pesky parameters like finality or other foundational judicial principles, or even the constitution, stand in the way of the predetermined political outcome which they seem preordained to deliver. Given the new court of four's conduct so far, we can expect more such judicial mischief in the future. On their watch, Wisconsin is poised to become a litigation nightmare. What is next? *** (T)his original action is wrongly taken and decided for a host of heretofore understood and respected legally-binding tenets. However, the court of four glosses right over them.
*** To be clear, this case is nothing more than a now time-barred motion to reconsider Johnson. An honest look at the plain law would require that this petition be dismissed. Instead, the creative legal machinations engaged in by the masters of this lawsuit, emboldened and encouraged by the new court of four, requires mind-boggling contortion of the law to achieve a particular political outcome. Sadly, judicial activism is once again alive and well in Wisconsin, creating great instability. *** (R)ejecting the Johnson I dissent's assertion that the task of adopting remedial maps required this court to rule as a partisan actor, we adopted "[a] least-change approach[, which] is the most consistent, neutral, and appropriate use of our limited judicial power to remedy the constitutional violations in this case." Least change, as a framework this court put forward throughout the Johnson litigation, properly reflects the limited role the judicial branch plays in redistricting, as it is the legislature, not the judiciary, which is granted constitutional authority to redistrict. Least change remains the law. Until today. Now, the majority, citing to nothing, declares instead that the standard this court implemented barely two years ago "is unworkable in practice," simply so that they can overrule it, and move this institution down the darkened path of outcome-based judicial activism. *** Ziegler then discusses at length the issues of stare decisis (adherence to precedents), standing (ability to sue), judicial estoppel (a party asserting inconsistent positions during litigation), issue preclusion (barring an argument that was previously decided, claim preclusion (barring an argument that could have been previously decided), laches (sitting on one’s rights), and due process. *** In the issue preclusion discussion: As a side note, the parties attempted to backdoor considerations of "partisan fairness" or "partisan gerrymandering" back into the court's analysis by way of at least initially confining it to the remedy phase. The majority continues that ill-fated venture of taking up an issue that both this court and the United States Supreme Court have determined is non-justiciable,67 by attempting to wrap it up in the perhaps more pleasant euphemism of "partisan impact," which the majority "will consider. . . . when evaluating remedial maps." Never mind figuring out how exactly the majority plans to go about evaluating "partisan impact" or determining how much "partisan impact" is permissible and how much is too much. They provide no measurable standard for calculating it. Apparently then, it is for them to know, and for us to find out! "The fact that the majority imposes its own unique and undefined standard further demonstrates that it exercises its will rather than its judgment." *** This court must not allow a non-justiciable, political question like partisan fairness to be camouflaged into the majority's decision. The majority declines to put forward a measurable standard by which this court is supposed to define or determine "partisan impact," demonstrating that they "exercise[]. . . . [their] will rather than [their] judgment." Their standard-deficient approach evokes recollections of the "eyeballing" tests from bygone legal eras encapsulated in "we'll know it when we see it" terminology. This court has already addressed the issues of partisan gerrymandering and political fairness, as well as contiguity. Issue preclusion bars us now from allowing these relevant parties to relitigate what has already been litigated. *** In the laches discussion: This court had a different composition two years ago, but that fact alone cannot be why these parties chose not to actively participate in that litigation at that time. To the dispassionate observer, such contortions of the law appear questionable and should come with consequences. Surprisingly, the parties are forthright enough to tell us themselves that this is in fact their reason for bringing this claim now—after waiting two years in alleged ongoing state of harm—to ensure that this case coincided with the changed composition of the court. It defies reason for parties to sit out litigation, obtain the benefit of seeing how arguments are presented, and then with that benefit of hindsight, bring their now modified claims over the same issues, with the same legal representation, at their leisure, years later. It further defies reason that given those same facts, and the fact that the respondents would not have had knowledge of the parties bringing new claims over the same maps a year later, that the parties can now demand that this court provide them an extraordinary remedy (overturning decades of precedent and the votes of millions of Wisconsinites), and do so in a constrained timeframe of mere months before another round of elections gets underway. Such unnecessary fast tracking due to the parties' own inexplicable delay may rightfully raise questions of intrusion on the opposing party's rights to fully litigate the claims presented. *** In the due process discussion: The parties interested in Justice Protasiewicz's election are intricately involved with, and beneficiaries of, the case they filed directly before her in this original action right after she was sworn in. Their timing of selecting her as their judge and then bringing this petition is irrefutable. Now, the four members of the court have fast-tracked this litigation, bypassing and rushing the traditional court steps, processes, and the law. *** In conclusion: This original action should never have been accepted. It is nothing more than a motion for reconsideration, which is time-barred; ignores stare decisis, standing, judicial estoppel, issue preclusion, claim preclusion, and laches. Not only is this a fundamentally legally flawed proceeding for these preceding listed reasons, but it also raises serious question regarding . . . whether this proceeding is a violation of litigants’ due process rights. What’s next? Pre-selected “consultants” who will decide the fate of Wisconsin voters even though the Wisconsin Supreme Court already decided these issues conclusively in the Johnson litigation? Will these “consultants” be endowed with the authority to reach all factual and legal conclusions necessary to draw the maps, while evading review and the constitutional protections due the parties? The four rogue members of the court have upended judicial practices, procedures, and norms, as well as legal practices, procedures, and precedent, yielding only to sheer will to create a particularized outcome which will please a particular constituency. At a minimum, this is harmful to the judicial branch and the institution as a whole. I dissent. Note: We are crunching Supreme Court of Wisconsin decisions down to size. The general rule for WJI's "SCOW docket" posts is that no justice gets more than 10 paragraphs as written in the actual decision, and all parts of the decision (majority, concurrences, dissents) are contained in one post. . This one is a little different, though. This time, with this case, we are doing it in three parts: first the majority decision, then the longest dissent, then the remaining two dissents. Why? Because this package of writings is extremely important: redistricting of the Legislature. In addition, the opinions are extremely long – 229 pages in all. Due to the size of the opinions, we are giving the majority opinion writer 18 paragraphs and each other opinion writer 15. Other than that, the rules remain the same. The "upshot" and "background" sections do not count as part of the paragraph restrictions because of their summary and very necessary nature. We've removed citations from the opinion for ease of reading (except, in this particular case, regarding some dictionary definitions), but may link to important cases cited or information about them. Italics indicate WJI insertions except for case names and emphasis added by the opinion writer, all of which also are italicized. The case: Rebecca Clarke v. Wisconsin Elections Commission Majority: Justice Jill J. Karofsky (51 pages), joined by Justices Ann Walsh Bradley, Rebecca Dallet, and Janet Protasiewicz Dissents: Chief Justice Annette Kingsland Ziegler (89 pages), Justice Rebecca Grassl Bradley (56 pages plus an appendix of 11 pages), and Justice Brian Hagedorn (22 pages) The upshot We hold that the contiguity requirements in Article IV, Sections 4 and 5 mean what they say: Wisconsin's state legislative districts must be composed of physically adjoining territory. The constitutional text and our precedent support this common-sense interpretation of contiguity. Because the current state legislative districts contain separate, detached territory and therefore violate the constitution's contiguity requirements, we enjoin the Wisconsin Elections Commission from using the current legislative maps in future elections. We also reject each of Respondents' defenses. We decline, however, to (invalidate) the results of the 2022 state senate elections. Because we enjoin the current state legislative district maps from future use, remedial maps must be drawn prior to the 2024 elections. The legislature has the primary authority and responsibility to draw new legislative maps. Accordingly, we urge the legislature to pass legislation creating new maps that satisfy all requirements of state and federal law. We are mindful, however, that the legislature may decline to pass legislation creating new maps, or that the governor may exercise his veto power. Consequently, to ensure maps are adopted in time for the 2024 election, we will proceed toward adopting remedial maps unless and until new maps are enacted through the legislative process. At the conclusion of this opinion, we set forth the process and relevant considerations that will guide the court in adopting new state legislative districts—and safeguard the constitutional rights of all Wisconsin voters. Background Following the 2020 census, the legislature passed legislation creating new state legislative district maps, the governor vetoed the legislation, and the legislature did not attempt to override his veto. Because the legislature and the governor reached an impasse, the 2011 maps remained in effect, even though they no longer complied with the Wisconsin or United States Constitutions due to population shifts. Billie Johnson and other Wisconsin voters asked this court to redraw the unconstitutional 2011 maps. In that case, we first confirmed that the 2011 maps no longer complied with the state and federal requirement that districts be equally populated (the "Johnson I" decision). Next, we identified the principles that would guide the court in adopting new maps, including the proposition that remedial maps "'should reflect the least change' necessary for the maps to comport with relevant legal requirements." We then invited the parties to submit proposed state legislative maps for our review. Of the proposed maps, we adopted the Governor's (the "Johnson II" decision). The United States Supreme Court summarily reversed that decision, holding that the Governor's proposed legislative maps violated the Equal Protection Clause of the Fourteenth Amendment because they increased the number of majority-Black districts in the Milwaukee area without sufficient justification. On remand, we adopted the legislative maps proposed by the Legislature (the "Johnson III" decision). In this case, the Clarke Petitioners filed a petition for leave to commence an original action challenging the maps adopted in Johnson III, arguing that they: (1) are an extreme partisan gerrymander; (2) do not comply with the contiguity requirements contained in Article IV, Sections 4 and 5 of the Wisconsin Constitution; and (3) were created via a process that violated the separation of powers. We granted leave in part, allowing Petitioners' contiguity and separation-of-powers claims to proceed, while declining to review the issue of extreme partisan gerrymandering. We explained that although Petitioners' extreme- partisan-gerrymandering claim presented an important and unresolved legal question, we declined to address it due to the need for extensive fact-finding. The court heard oral argument on Nov. 21, 2023. The guts We start our analysis with Article IV, Section 4 of the Wisconsin Constitution, which sets the ground rules for how Wisconsin Assembly members are elected and how their districts are to be established. . . . Section 4 imposes three separate requirements for establishing assembly districts. The districts must: (1) "be bounded by county, precinct, town or ward lines;" (2) "consist of contiguous territory;" and (3) "be in as compact form as practicable." Article IV, Section 5 sets out rules for how senators are elected and how their districts are established . . . . Section 5 imposes three requirements on senate districts. The senate districts must (1) be "single districts;" (2) be "of convenient contiguous territory;" and (3) not divide any assembly districts. *** . . . . It is immediately apparent, using practically any dictionary, that contiguous means "touching" or "in actual contact." See, e.g., Contiguous, Black's Law Dictionary, (11th ed. 2019) ("Touching at a point or along a boundary."); Contiguous, Oxford English Dictionary (2d ed. 1989) ("touching, in actual contact, next in space; meeting at a common boundary, bordering, adjoining"); Contiguous, Merriam Webster Dictionary (11th ed. 2019) ("being in actual contact: touching along a boundary or at a point"). These definitions make clear that contiguous territory is territory that is touching, or in actual contact. In other words, a district must be physically intact such that a person could travel from one point in the district to any other point in the district without crossing district lines. We find additional support for this understanding of contiguity in historical definitions and early Wisconsin districting practices. In examining historical definitions of the word "contiguous," we see that the definition has not changed since the Wisconsin Constitution was adopted. See Contiguous, A Dictionary of the English Language (1756) ("meeting so as to touch; bordering upon each other; not separate"); Contiguous, An American Dictionary of the English Language (1828) ("touching: meeting or joining at the surface or border"). Turning to early districting practices, the first state legislative districts, set forth in the Wisconsin Constitution, were all physically contiguous. Additionally, the constitution specified that if existing towns were split or new towns were created, the districts had to remain physically intact. In short, historical definitions and practices related to contiguity bolster our conclusion that contiguity does indeed require "touching," or "actual contact." Respondents assert that a district with separate, detached territory can still be contiguous—so long as the detached territory is a "municipal island" (meaning portions of municipal land separated from the main body of the municipality, usually created by annexation) and the main body of the municipality is located elsewhere in the district. The Legislature refers to this as "political contiguity." Adopting the concept of political contiguity would essentially require us to read an exception into the contiguity requirements—that district territory must be physically touching, except when the territory is a detached section of a municipality located in the same district. We decline to read a political contiguity exception into Article IV's contiguity requirements. The text contains no such exception. Both Section 4 and Section 5 include the discrete requirement that districts be composed of contiguous territory. There are no exceptions to contiguity in the constitution's text, either overt or fairly implied. True, assembly districts must also be "in as compact form as practicable" and "bounded by county, precinct, town or ward lines," but the existence of additional requirements does not constrain or limit the separate requirement that district territory be contiguous. The court then discussed two prior cases, from 1880 and 1892, that confirmed the court’s understanding of contiguity. *** None of the parties disputes that the current legislative maps contain districts with discrete pieces of territory that are not in actual contact with the rest of the district. We . . . look at the example of Assembly District 47 (in yellow) which plainly includes separate, detached parts: The court provided additional examples with images.
*** In total, at least 50 assembly districts and at least 20 senate districts include separate, detached parts. That is to say, a majority of the districts in both the assembly and the senate do not consist of "contiguous territory" within the meaning of Article IV, Section 4, nor are they "of convenient contiguous territory" within the meaning of Article IV, Section 5. Therefore, we hold that the non-contiguous legislative districts violate the Wisconsin Constitution. *** As we declared above, the current legislative maps contain districts that violate Article IV, Sections 4 and 5 of the Wisconsin Constitution. At least 50 of 99 assembly districts and at least 20 of 33 senate districts contain territory completely disconnected from the rest of the district. Given this pervasiveness, a remedy modifying the boundaries of the non-contiguous districts will cause a ripple effect across other areas of the state as populations are shifted throughout. Consequently, it is necessary to enjoin the use of the legislative maps as a whole, rather than only the non-contiguous districts. We therefore enjoin the Wisconsin Elections Commission from using the current legislative maps in all future elections. Accordingly, remedial legislative district maps must be adopted. We recognize that next year's legislative elections are fast-approaching, and that remedial maps must be adopted in time for the fall primary in August 2024. With that in mind, the following section first describes the role of the court in the remedial process. Second, we articulate the principles the court will follow when adopting remedial maps. . . . It is essential to emphasize that the legislature, not this court, has the primary authority and responsibility for drawing assembly and senate districts. Therefore, when an existing plan is declared unconstitutional, it is "appropriate, whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure." There may be exceptions to this general rule, but we decline Petitioners' request to apply one here. Should the legislative process produce a map that remedies the contiguity issues discussed above, there would be no need for this court to adopt remedial maps. We remain cognizant, however, of the possibility that the legislative process may not result in remedial maps. In such an instance, it is this court's role to adopt valid remedial maps. The United States Supreme Court has specifically recognized the ability of a state judiciary to remedy unconstitutional legislative districts by crafting new remedial maps. And this court has exercised such authority in the past when faced with unconstitutional maps. If the legislative process does not result in remedial legislative maps, then it will be the job of this court to adopt remedial maps. *** The court then rejected and overruled the “least change” approach used in the Johnson cases (meaning that remedial maps should reflect the least change from the prior maps) because the court had failed to agree on what "least change" meant and the method was shown to be “unworkable in practice.” The following principles will guide our process in adopting remedial legislative maps. First, the remedial maps must comply with population equality requirements. State and federal law require a state's population to be distributed equally amongst legislative districts with only minor deviations. When it comes to population equality, courts are held to a higher standard than state legislatures as we have a "judicial duty to 'achieve the goal of population equality with little more than de minimis variation.'" Second, districts must meet the basic requirements set out in Article IV of the Wisconsin Constitution. Assembly districts must be (a) bounded by county, precinct, town or ward lines; (b) composed of contiguous territory; and (c) in as compact form as practicable. Senate districts must be composed of "convenient contiguous territory." Additionally, districts must be single-member districts that meet the numbering and nesting requirements set out in Article IV, Sections 2, 4, and 5. *** Third, remedial maps must comply with all applicable federal law. In addition to the population equality requirement discussed above, maps must comply with the Equal Protection Clause and the Voting Rights Act of 1965. Fourth, the court will consider other traditional districting criteria not specifically outlined in the Wisconsin or United States Constitution, but still commonly considered by courts tasked with formulating maps. These other traditional districting criteria include reducing municipal splits and preserving communities of interest. These criteria will not supersede constitutionally mandated criteria, such as equal population requirements, but may be considered when evaluating submitted maps. Fifth, we will consider partisan impact when evaluating remedial maps. When granting the petition for original action that commenced this case, we declined to hear the issue of whether extreme partisan gerrymandering violates the Wisconsin Constitution. As such, we do not decide whether a party may challenge an enacted map on those grounds. However, that does not mean that we will ignore partisan impact in adopting remedial maps. Unlike the legislative and executive branches, which are political by nature, this court must remain politically neutral. We do not have free license to enact maps that privilege one political party over another. Our political neutrality must be maintained regardless of whether a case involves an extreme partisan gerrymandering challenge. As we have stated, "judges should not select a plan that seeks partisan advantage—that seeks to change the ground rules so that one party can do better than it would do under a plan drawn up by persons having no political agenda—even if they would not be entitled to invalidate an enacted plan that did so." Other courts have held the same. It bears repeating that courts can, and should, hold themselves to a different standard than the legislature regarding the partisanship of remedial maps. As a politically neutral and independent institution, we will take care to avoid selecting remedial maps designed to advantage one political party over another. Importantly, however, it is not possible to remain neutral and independent by failing to consider partisan impact entirely. As the Supreme Court (has) recognized . . . "this politically mindless approach may produce, whether intended or not, the most grossly gerrymandered results." As such, partisan impact will necessarily be one of many factors we will consider in adopting remedial legislative maps, and like the traditional districting criteria discussed above, consideration of partisan impact will not supersede constitutionally mandated criteria such as equal apportionment or contiguity. As we await opinions from the Supreme Court of Wisconsin's new term, we've gone back to a few decisions from last term to crunch them down to size. Note: This one is a little different. WJI's "SCOW docket" pieces generally include decisions, dissents, and concurrences all in one post. This time, with this case, we are doing it in three: first the decision, then the dissent, then the concurrences. Why? Because this package of writings is extremely important for future ballot questions regarding state constitutional amendments. Besides that, the SCOW decisions are unusually long – 111 pages in all, not counting the cover sheets. Plus, it's a case that WJI cares a lot about. Instead of allowing each writing justice 10 paragraphs, we are giving the majority opinion writer 18 and each other opinion writer 15. Other than that, the rules remain the same. The "upshot" and "background" sections do not count as part of the paragraph restrictions because of their summary and very necessary nature. We've removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names and emphasis added by the opinion writer, all of which also are italicized. The case: Wisconsin Justice Initiative, Inc., et al. v. Wisconsin Elections Commission, et al. Majority opinion: Justice Brian Hagedorn (42 pages), joined in full by Chief Justice Annette Ziegler and Justices Patience Roggensack and Rebecca Grassl Bradley, joined in part by Justices Rebecca Frank Dallet and Jill J. Karofsky Concurrence: Grassl Bradley (14 pages), joined by Ziegler and Roggensack Concurrence: Dallet (32 pages), joined in full by Karofsky, joined in part by Justice Ann Walsh Bradley Concurrence: Hagedorn (9 pages), joined in part by Dallet Dissent: Walsh Bradley (14 pages) Grassl Bradley Concurrence I join the majority opinion and write separately to explain why the "every essential" test is incompatible with the political question doctrine. As the majority holds, whether a ballot question states "every essential" of a proposed amendment is non-cognizable. Nevertheless, three justices cast themselves as legal writing professors with the power to grade the legislature's work. Justice Rebecca Frank Dallet, joined by Justice Jill J. Karofsky, writes in concurrence to give the legislature's work a passing grade, while Justice Ann Walsh Bradley, in dissent, gives the legislature an F. This court lacks the authority these justices would usurp from the legislature. The "every essential" test is incompatible with the political question doctrine for at least two reasons. First, Article XII, Section 1 of the Wisconsin Constitution assigns the legislature, not the judiciary, the power to determine the manner by which a proposed amendment is submitted to the people. It states, in relevant part: “[I]t shall be the duty of the legislature to submit such proposed amendment . . . to the people in such manner and at such time as the legislature shall prescribe; . . . provided, that if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately.” Self-evidently, while this provision requires the legislature to submit a proposed amendment to the people, it also gives the legislature, not the judiciary, the power to determine how that submission occurs. The constitution imposes only one textually-expressed limitation on the legislature's power to determine the manner of submission: "if more than one amendment be submitted," the people must be able to vote on each separately. The judiciary does not have the authority to compel the legislature to exercise its power over the manner of submission in a particular way. As explained more thoroughly below, this court possesses the power to determine whether a proposed amendment was even submitted to the people, but such a claim is distinguishable from a complaint about an unartful manner of submission. This case accordingly presents a separation of powers issue. As one amicus curiae explains, "[i]f affirmed, the circuit court's decision could force the [l]egislature to use new language that no longer expresses the [l]egislature's desired meaning. . . . [T]he [l]egislature presumptively chose those words for a reason[.]" Challenges to the manner of submission are therefore "beyond the purview of judicial review" because they present purely political questions. The desire of Justices Ann Walsh Bradley, Dallet, and Karofsky to entertain these political questions would likely spawn "defensive" ballot question drafting. The legislature could, for example, quote the proposed amendment verbatim on the ballot, perhaps satisfying the values-based concerns of the aforementioned justices. The Wisconsin Constitution, however, does not impose such a cumbersome requirement. Second, the "every essential" test is not a "manageable standard[]" by which the judiciary could objectively evaluate the manner of submission. The judicial power vested in this court by Article VII, Section 2 of the Wisconsin Constitution, like the judicial power vested in the United States Supreme Court, "is the power to act in the manner traditional for English and American courts. One of the most obvious limitations imposed by that requirement is that judicial action must be governed by standard, by rule." These standards and rules must be "'principled, rational, and based upon reasoned distinctions' found in the . . . law[]." Otherwise, "intervening courts—even when proceeding with best intentions—would risk assuming political, not legal, responsibility[.]" Whether a particular characteristic of a proposed amendment is "essential" sounds a lot like the "I know it when I see it" test. The judiciary, however, must make decisions based on reason, not instinct. *** Recognizing the inherent vagueness of the "every essential" test, Justice Dallet "acknowledge[s] . . . that this rule doesn't always provide clear answers." In actuality, the "every essential" test is incapable of providing any answers whatsoever. The test is based purely on subjective perception, not objective rule. As Justice Dallet reasons, "[b]ecause a summary . . . will always be incomplete and isn't meant to take the place of the text of a proposed amendment, judgment will always be required. But that is okay. We trust judges to make judgment calls all the time[.]" Her view invites judicial overreach because it is based on the rule of judges rather than the rule of law. Embracing a standardless test would empower a single circuit court judge in a single county to toss the results of a statewide election based on little more than subjective predilections. This court would become the final arbiter of every proposed constitutional amendment, without any express grant of constitutional authority to second guess the legislature's work. As the majority notes, only once in Wisconsin's 175-year history has this court declared a proposed amendment was not ratified based on a challenge to the wording of a ballot question—despite the Wisconsin Constitution having been amended nearly 150 times. *** Similar to Justice Dallet, Justice Ann Walsh Bradley never defines an "essential," instead concluding "[b]y any definition of the word" the ballot question in this case was legally inadequate. The definition, however, matters a great deal, largely because the difficulty in defining the word demonstrates that judges should not be defining it in the first place. *** Unlike the "every essential" test, the counterfactual test this court adopts is consistent with the text of Article XII, Section 1 of the Wisconsin Constitution and is justiciable. While the legislature has the power to decide the manner by which a proposed amendment is submitted to the people, the legislature has the "duty . . . to submit such proposed amendment[.]" That duty is not fulfilled when the ballot question misidentifies the proposed amendment with counterfactual information. A challenge alleging the presence of counterfactual information takes issue not with the "manner" of submission but with whether submission even occurred. Applying the counterfactual test therefore does not usurp the legislature's authority but rather ensures the legislature has fulfilled its constitutional duty. *** The counterfactual test is straightforward and capable of judicial review: Did the ballot question contain clearly false information? Whether a statement is true or false is simply a factual determination, and while factual determinations are not always easy, they do not turn on personal beliefs. A factual determination is difficult only to the extent that evidence is lacking or conflicting. In contrast, the "every essential" test is largely indeterminate, even if the evidence is clear, precisely because it requires a judge to form a political opinion. *** . . . . Justice Dallet suggests that determining whether a test is objective is itself a subjective determination and therefore cannot be done properly. Obviously, subjectivity and objectivity exist on a spectrum, just like the colors white and grey. Just as a reasonable person can look at a color and determine whether it is white or grey, a reasonable person can look at a legal test and determine whether it is subjective or objective. No one can seriously question the objectivity of the counterfactual test, even if it may be difficult to apply in some cases (although not in this one), or the subjectivity of the "every essential" test. The former is indeterminate only to the extent a factual determination is impossible, but the latter is indeterminate even when the facts are undisputed. Notably, Justice Dallet never argues the "every essential" test will constrain judges acting in good faith to the same extent as the counterfactual test. *** Unlike the "every essential" test endorsed by three justices, the counterfactual test safeguards democracy by preserving the prerogatives of the people's representatives in the legislature to decide political questions. Three justices would instead supplant the legislature's constitutionally assigned role, arrogate the power to set aside the not- particularly-close results of a lawfully-conducted election, and embrace a judicially invented test never before applied in the history of Wisconsin. None of these justices defines with any particularity the test they propose to determine whether such an undemocratic remedy is warranted, much less identify the source of their authority to impose it. Without elaboration on the "every essential" test, judges are licensed to inject their political will into the analysis, potentially substituting their will for the will of the people. Ironically, these justices suggest that if the judiciary is denied the power to discard election results at will, democracy will suffer. Their concerns arise from both a misunderstanding of the constitutional purpose of a ballot question and a distrust of voters. For example, the dissent complains, "[t]hose voters who do not research a proposed amendment beforehand will see the ballot question and only the ballot question prior to casting their votes." Dissent, ¶189. The constitutional purpose of a ballot question, however, is not to educate voters. As indicated by the historical analysis discussed in the majority opinion, a ballot question merely identifies the particular proposed amendment the voters will decide to ratify——or not. Second, as the Wisconsin Elections Commission explains, "[v]oters are expected to review . . . election notices and apprise themselves of public debate, and educate themselves on the substance and implications of a proposed amendment." By analogy, a ballot for President of the United States does not describe the candidates or their platforms. Voters are trusted to inform themselves. Dallet Concurrence I agree with the majority that Marsy's Law was validly adopted because the amendment complied with Article XII, Section 1's requirements that proposed constitutional amendments be "submit[ted] to the people" and not contain "more than one amendment." Evaluating whether Marsy's Law was submitted to the people requires us to balance two competing interests reflected in Article XII, Section 1: (1) the legislature's authority to specify the time and manner in which amendments are to be submitted, and (2) the people's right to evaluate and vote on proposed constitutional amendments. Doing so leads to the conclusion that Marsy's Law was submitted to the people because the summary of the amendment that appeared on the ballot accurately summarized the significant changes the amendment would make to the constitution. The majority uses a similar interest-balancing approach, but arrives at a rule that is too narrow. And it does so only after a ten-page digression extolling the virtues of originalism, which it then tacitly abandons as futile. Because I reject both originalism and the majority's narrow conception of what it means for a proposed amendment to be submitted to the people, I respectfully concur. *** I disagree with (the court’s adherence to originalism) for three reasons. First, the majority's claim that originalism is somehow our settled approach to constitutional interpretation is incorrect. In fact, many of our recent cases use a more inclusive approach to constitutional interpretation that considers more than merely text and history. Second, the majority's two defenses of originalism—(1) that originalism is simply how we interpret any written law, and (2) that originalism constrains judges to their proper role by providing a basis for decisions different than a judge's personal views—are both unconvincing. In my view, a more pluralistic method is needed to interpret faithfully the Wisconsin Constitution (or the United States Constitution for that matter). Under such an approach text and history of course matter, but so do precedent, context, historical practice and tradition. And third, an earlier court's choice of an interpretive methodology like originalism does not bind later courts to use that same methodology. *** (The majority’s claim that the court has consistently used and has doubled down on originalist interpretation) is incorrect. In fact, in a number of recent cases the court has taken a more pluralistic approach to constitutional interpretation that takes into account more than just text and history. (Citing cases) (T)hese decisions and others like them were criticized by some justices as non-originalist, or at least not sufficiently originalist. Thus, the majority cannot claim that originalism is somehow our consensus approach to constitutional interpretation. *** Most of our constitution . . . was written broadly, and for good reasons. Indeed, the Wisconsin Constitution—now the sixth oldest in the nation—came about only after a prior, more specific proposed constitution was rejected by the people, largely because it tried to settle too many then-contemporary policy disputes. No doubt part of the reason our constitution has endured so long is because its breadth gave the people of our state the room needed to adapt to new problems. The breadth and adaptability of our constitution is evident in its many clauses declaring broad principles in general terms. The Wisconsin Constitution contains, for example, a guarantee of "a certain remedy in the law for all injuries, or wrongs," a prohibition against "control of, or interference with, the rights of conscience," and a pronouncement that "[t]he blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles." And our framers recognized that by writing these provisions broadly it would be up to future judges and interpreters to decide what they meant. As the state constitutional convention's president put it, the framers of our constitution sought to declare "those great principles which characterize the age in which we live, and which, under the protection of Heaven, will—nay, must—guard the honor, promote the prosperity, and secure the permanent welfare of our beloved country." They weren't trying to write specific rules settling difficult questions for all time. Instead, they were—like the framers of the United States Constitution—trying to "provide a political platform wide enough to allow for considerable latitude within which future generations could make their own decisions." Simply observing, as the majority does, that the constitution was written down does not demonstrate that originalism is the best way to make those decisions. *** Dallet then describes why the search for original meaning is “almost always fruitless”: What these limited sources (on Wisconsin's two constitutional conventions) reveal is not one single, universally accepted original public meaning of the Wisconsin Constitution. Instead, they demonstrate that the questions that consumed the drafters of the Wisconsin Constitution—whether the document would retain the failed 1846 constitution's provisions prohibiting banking, guaranteeing property rights to married women, and creating an elected judiciary, for example—tell us nothing about how to resolve contemporary cases. They also show that, when it came to the document's more open-ended provisions, the drafters left little evidence of what they thought these clauses meant. The same is true of many of the constitution's more specific provisions like the one about how to amend the constitution at issue in this case, Article XII, Section 1. As the majority acknowledges, there is no evidence from the constitutional convention or ratification debates that sheds any light on its meaning. *** . . . . (A)s the preceding discussion demonstrates, what originalism requires judges to identify—a single, objective original public meaning—is something we cannot know. And even if we do somehow identify one original public meaning, like the majority's abstract insight about Article XII, Section 1, it tells us nothing about how to resolve real cases. Without the objective answers it promises, originalism is no constraint on judges at all. Constitutional interpretation is never as simple as just "apply[ing] the constitution as it is written." That is because the constitution forces us to choose between competing interests all the time, and value-neutral judging is therefore impossible. Take, for example, Article I, Section 11 of the Wisconsin Constitution, which provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated." What is reasonable when it comes to drone surveillance or searching cell phones isn't dictated by any original understanding. There could never be an "original understanding" on these topics because they were unimaginable at the time our constitution was written. Moreover, evaluating whether a search is "unreasonable" always requires a value judgment, balancing the interests of the government against an invasion of privacy. So too in deciding what it means for a constitutional amendment to be "submit[ted] to the people." Finally, even if the original public meaning of many provisions of the Wisconsin Constitution were discoverable, applying it would lead to intolerable results. As one scholar said, "[t]he only kind of originalism that is reasonably determinate leads to conclusions that practically no one accepts." For example, Article I, Section 9 of the Wisconsin Constitution provides that "[e]very person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws." There is no escaping that, as the use of male pronouns demonstrates, the original public meaning of this provision and many others in our original constitution didn't include women. The delegates to the constitutional convention were all men, and as mentioned previously, part of the reason the proposed 1846 constitution was rejected was because it guaranteed a modicum of autonomy to women through its provisions about married women owning property. Yet we would never say today that, because the original public meaning of this provision didn't include women, women are therefore not entitled to a "remedy in the laws." And that's not the only example. Take Article I, Section 18's guarantee of "[t]he right of every person to worship Almighty God according to the dictates of conscience." At the 1847-48 convention, a motion to strike the words "Almighty God" on the grounds that the people had the right to worship whomever or whatever they wanted was defeated as "too radical a doctrine for our God- fearing forefathers." Although this supports the conclusion that the original public meaning of Article I, Section 18's guarantee of religious liberty was inapplicable to those who didn't share our founders' belief in "Almighty God," even those who claim to be originalists would not reach such a repellent conclusion today. *** The majority disagrees with WJI's view that Ekern imposed a constitutional requirement that ballot language contain "every essential" of a proposed amendment. According to the majority, "the relevant constitutional question is whether the proposed amendment was, at a basic level, submitted to the people for ratification." And the majority concludes that the only way in which an amendment could flunk that test is "in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment." Because the ballot language about Marsy's Law does not fit within that narrow category, the majority concludes that the amendment was validly adopted. Before getting to why I think the majority's proposed rule is too narrow, it's important to note one thing. Despite the majority's purported allegiance to originalism, this analysis is anything but originalist. The text of Article XII, Section 1 doesn't tell us what it means for an amendment to be "submit[ted] to the people." Indeed, it's plausible to read the text as allowing the legislature to do whatever it wants when it comes to describing constitutional amendments on the ballot. And knowing that early legislatures used to provide no descriptions on the ballot at all doesn't help us answer whether an amendment submitted with a misleading or incomplete description is submitted to the people either. *** The problem is that the new rule the majority derives from Ekern and our other cases regarding the submission-to-the-people requirement is still too narrow. Although the majority is certainly correct that a "fundamentally counterfactual" ballot question doesn't comply with the constitution, that's not the only way to violate the requirement that an amendment be submitted to the people. An amendment that is described in a way that is so incomplete as to be misleading is also not submitted to the people. For example, if the legislature had described Marsy's Law on the ballot as merely "an amendment to expand the definition of 'victim' contained in Article I, § 9m of the Constitution," that description wouldn't violate the majority's rule. This statement is accurate, it's not fundamentally counterfactual. But the description would also be misleading because Marsy's Law made many more significant changes to Article I, Section 9m. And if the people voted to adopt the amendment in reliance on such a description, it can't be said that all of those more significant changes were submitted to the people for ratification. This, I think, is what Ekern was referring to when it said the ballot must describe "every essential" of the proposed amendment. Thus, I conclude that a ballot description, if the legislature chooses to provide one, must accurately summarize the significant changes the proposed amendment would make to the Constitution. I acknowledge, of course, that this rule doesn't always provide clear answers. Because a summary that appears on the ballot will always be incomplete and isn't meant to take the place of the text of a proposed amendment, judgment will always be required. But that is okay. We trust judges to make judgment calls all the time, and doing so in this context is the only way to preserve both the legislature's authority to specify the manner in which amendments are to be submitted to the people and the right of the people to decide whether to change the constitution. Indeed, the majority's approach also requires judgment to determine what questions are "fundamentally counterfactual." As the use of the word "fundamentally" implies, superficially counterfactual ballot questions would pass the majority's test. But the majority offers no principled way of distinguishing between superficially counterfactual and "fundamentally" counterfactual ballot questions. In this case, the legislature's summary was sufficient and Marsy's Law was thus validly submitted to the people. Although WJI points to some of the amendment's particulars that weren't described specifically in the ballot language, as I said before, a summary always leaves some details out. The legislature's description of Marsy's Law is accurate, and the expanded definition of "victim," and arguable changes to the state constitutional rights of the accused and this court's jurisdiction weren't so significant that they needed to be described on the ballot. In short, the legislature gave voters the gist of Marsy's Law, and in an accurate way, and that is all that is required. Accordingly, I respectfully concur. As we await opinions from the Supreme Court of Wisconsin's new term, we will go back to a few decisions from last term and crunch them down to size. Note: This one is a little different. WJI's "SCOW docket" pieces generally include decisions, dissents, and concurrences all in one post. This time, with this case, we are doing it in three: first the decision, then the dissent, then the concurrences. Why? Because this package of writings is extremely important for future ballot questions regarding state constitutional amendments. Besides that, the SCOW decisions are unusually long – 111 pages in all, not counting the cover sheets. Plus, it's a case that WJI cares a lot about. Instead of allowing each writing justice 10 paragraphs, we are giving the majority opinion writer 18 and each other opinion writer 15. Other than that, the rules remain the same. The "upshot" and "background" sections do not count as part of the paragraph restrictions because of their summary and very necessary nature. We've removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names and emphasis added by the opinion writer, all of which also are italicized. The case: Wisconsin Justice Initiative, Inc., et al. v. Wisconsin Elections Commission, et al. Majority opinion: Justice Brian Hagedorn (42 pages), joined in full by Chief Justice Annette Ziegler and Justices Patience Roggensack and Rebecca Grassl Bradley, joined in part by Justices Rebecca Frank Dallet and Jill J. Karofsky Concurrence: Grassl Bradley (14 pages), joined by Ziegler and Roggensack Concurrence: Dallet (32 pages), joined in full by Karofsky, joined in part by Justice Ann Walsh Bradley Concurrence: Hagedorn (9 pages), joined in part by Dallet Dissent: Walsh Bradley (14 pages) The dissent Ballot question challenges have been few and far between in the history of our state. Such a challenge reached this court in State ex rel. Ekern v. Zimmerman (1925). There, the court established a test for our review of a ballot question challenge: "it must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment." Yet rather than respecting the precedent of a nearly century-old unanimous opinion, the majority charts a new course not requested by either party. Instead of applying the test established in Ekern, the majority conjures its own test, never before stated, much less applied. Specifically, the majority sets forth that "[a] ballot question could violate [the] constitutional requirement only in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment." In addition to being created by the majority from whole cloth, this new test is unnecessary for the simple reason that we already have a test from Ekern. The majority arrives at its newly discovered test by tossing precedent to the wind and engaging in an unconvincing search for the "original meaning" of the state constitution's command that the legislature "submit" a proposed amendment to the people. As Justice Dallet's concurrence aptly explains, the endeavor of divining the "original meaning" of a constitutional provision is largely a futile endeavor. But even setting this aside, the majority's analysis rests on an infirm foundation. It erroneously dismisses the Ekern test, and instead creates and applies a newly-minted test, resulting in an overly permissive approach that risks giving the legislature carte blanche in crafting ballot questions. I would follow our precedent set forth in Ekern. Applying the Ekern framework, I determine instead that the ballot question here failed to convey "every essential" of the amendment as is required. From the ballot question only, voters would have no idea that the proposed amendment diminishes the rights of criminal defendants in addition to bolstering the rights of crime victims. In my view, the diminution of a defendant's rights previously protected by law, constitutes an "essential" element of the amendment. Because the ballot question failed to accurately represent an essential element of the law to the voters who approved it, I respectfully dissent. *** This court in Ekern set forth what the parties refer to as the "every essential" test. It requires that a ballot question "must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment." As the court of appeals observes in its certification in the present case, this court has not expanded on what it really means for a ballot question to include "every essential" and this case presents an opportunity for the court to explain and apply this court's statement in Ekern. But instead of taking that opportunity, the majority simply dispenses with Ekern. In the majority's view, the "every essential" test is no test at all, but is instead just an "explanatory statement." Such a characterization would be news to the court in State ex rel. Thomson v. Zimmerman (1953), who noted (although did not decide) a controversy over whether a ballot question "fairly comprised every essential of the amendment." And it most certainly is news to the parties here, who both argued their positions in terms of the "every essential" framework Ekern set forth. *** Of note is that no party here asked us to overrule Ekern. Indeed, WEC argued within the confines of Ekern that the ballot question at issue provided "every essential" of the amendment. We have thus been provided no special justification for overruling Ekern. As such, I would maintain the Ekern test. Doing so not only respects the precedent established by the courts who came before us, but in this case furthers the aims of democratic governance. Making sure that a ballot question includes "every essential" of an amendment ensures that the public is informed and can "vote intelligently." This is critical to maintaining a democracy. *** . . . (T)he ballot question here fails. I begin my analysis with the essential fact, recognized by the circuit court, that the victim's rights amendment does more than just increase the rights of crime victims. The majority fails to acknowledge this. Instead, it opines: "all of the provisions of Marsy's Law relate to expanding and defining victim's rights and tend to effect and carry out this general purpose." Several provisions of the amendment do, in fact, decrease the rights afforded to criminal defendants. For example, the amendment limits the rights of criminal defendants in the following ways:
*** Shouldn't the voters be informed that a constitutional amendment diminishes the rights of criminal defendants before voting on it? In light of these provisions, it is apparent that the amendment serves dual "purposes," both expanding the rights of victims and diminishing those of the accused. By any definition of the word, such a change is an "essential" aspect of an amendment. Accordingly, a voter would need to be informed of the change before voting "intelligently." Its lack of inclusion has the significant potential to mislead voters as to the consequences of their votes. *** . . . (T)he ballot question is the only text that all voters are guaranteed to see. Those voters who do not research a proposed amendment beforehand will see the ballot question, and only the ballot question, prior to casting their vote. This gives the framing provided by the ballot question considerable power in shaping how voters think about and understand the question presented. That ballot question language possesses this power to frame the issue in turn dictates that the language provide an accurate picture of the measure that is placed before the voters. To this end, we should maintain the vitality of judicial review in the ballot question context, rather than essentially surrendering our responsibility for judicial review to the legislature. Democracy works best when voters are fully informed. The majority opinion takes a step backward in this endeavor. As we await opinions from the Supreme Court of Wisconsin's new term, we will go back to a few decisions from last term and crunch them down to size. Note: This one is a little different. WJI's "SCOW docket" pieces generally include decisions, dissents, and concurrences all in one post. This time, with this case, we are doing it in three: first the decision, then the dissent, then the concurrences. Why? Because this package of writings is extremely important for future ballot questions regarding state constitutional amendments. Besides that, the SCOW decisions are unusually long – 111 pages in all, not counting the cover sheets. Plus, it's a case that WJI cares a lot about. Instead of allowing each writing justice 10 paragraphs, we are giving the majority opinion writer 18 and each other opinion writer 15. Other than that, the rules remain the same. The "upshot" and "background" sections do not count as part of the paragraph restrictions because of their summary and very necessary nature. We've removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names and emphasis added by the opinion writer, all of which also are italicized. The case: Wisconsin Justice Initiative, Inc., et al. v. Wisconsin Elections Commission, et al. Majority opinion: Justice Brian Hagedorn (42 pages), joined in full by Chief Justice Annette Ziegler and Justices Patience Roggensack and Rebecca Grassl Bradley, joined in part (seven paragraphs at the end on the multiple-question issue) by Justices Rebecca Frank Dallet and Jill J. Karofsky Concurrence: Grassl Bradley (14 pages), joined by Ziegler and Roggensack Concurrence: Dallet (32 pages), joined in full by Karofsky, joined in part by Justice Ann Walsh Bradley Concurrence: Hagedorn (9 pages), joined in part by Dallet Dissent: Walsh Bradley (14 pages) The upshot We . . . hold that WJI's challenges to Marsy's Law fail. The ballot question was not submitted to the people in violation of the process outlined in the Wisconsin Constitution. Therefore, absent challenge on other grounds, the amendment has been validly ratified and is part of the Wisconsin Constitution. *** Through the Wisconsin Constitution, the people of Wisconsin have given the legislature broad authority to determine how proposed constitutional amendments may be submitted to the people for ratification. WJI argues that the ballot question for Marsy's Law was constitutionally deficient under Article XII, Section 1 on multiple grounds. We disagree. We conclude that the ballot question was not fundamentally counterfactual such that voters were not afforded the opportunity to approve the actual amendment. Rather, Marsy's Law was validly submitted to and ratified by the people of Wisconsin, as the constitution requires. WJI further argues Marsy's Law should have been split into more than one amendment, each receiving a separate vote. However, the constitution did not require that here. We conclude the amendment had the single general purpose of expanding and protecting victims' rights, and all provisions of the proposed amendment furthered this purpose. For these reasons, WJI's constitutional challenges to the ratification of Marsy's Law do not succeed, and we reverse the circuit court's judgment to the contrary. Background When the Wisconsin Constitution was adopted in 1848, it included a process enabling amendments — an act the people of Wisconsin have seen fit to do almost 150 times. A proposed amendment must be approved by a majority of both houses of the legislature in two successive legislative sessions. Once it passes that test, the proposed amendment is submitted to the people. If a majority vote yes, it becomes part of our constitution. A victim's rights amendment termed "Marsy's Law" by its sponsors (a term we also use in this opinion) was ratified by the people in April of 2020. In this case, Wisconsin Justice Initiative, Inc. and several citizens (collectively "WJI") argue that Marsy's Law was adopted in violation of the process spelled out in the constitution. . . . . The relevant constitutional text governing the claims here is found in Article XII, Section 1. It provides that the legislature has a duty "to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe." And, "if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately." The Legislature in consecutive sessions passed a joint resolution setting forth the Marsy’s Law amendment, which among other things, expanded the definition of "victim," provided that enumerated victims' rights vest at the time of victimization and must "be protected by law in a manner no less vigorous than the protections afforded to the accused," eliminated language stating that victims could be barred from the courtroom before testifying if "necessary to a fair trial for the defendant," provided that victims may refuse discovery requests made by an accused, eliminated a provision from the prior victims' rights constitutional provision that "(n)othing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law," and created rights for victims to seek appellate court review of certain decisions. The legislature directed that this amendment, informally known as "Marsy's Law," be submitted for ratification at the April 7, 2020 election. The legislature determined that the ballot question should state as follows: "Question 1: Additional rights of crime victims. Shall section 9m of article I of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?" Several months before the April election, WJI brought suit against the Wisconsin Elections Commission (WEC) alleging the ballot question failed to satisfy the requirements of the Wisconsin Constitution. WJI sought declarations that the ballot question violated Article XII, Section 1 of the Wisconsin Constitution on various grounds, and requested both a permanent injunction and a temporary injunction preventing submission of the question to voters while the litigation was pending. The circuit court denied WJI's motion for a temporary injunction, and Wisconsinites ratified the amendment at the April 7, 2020 election by a vote of 1,107,067 to 371,013. Several months later, the circuit court granted declaratory judgment in favor of WJI, concluding the ballot question failed to meet all the requirements with respect to content and form. The circuit court, on its own motion, stayed judgment pending appeal. WEC appealed, and the court of appeals certified the appeal to this court, which we accepted. WJI argued before the Supreme Court that the ballot question for Marsy's Law violated the Wisconsin constitutional requirements for amendments by failing to contain "every essential" of the proposed amendment as required by prior Wisconsin Supreme Court caselaw, in particular by failing to state that the definition of "victim" was being expanded and that the constitutional rights of those accused of crime were being diminished. Further, WJI argued that the ballot question misstated the contents of the amendment and was misleading because it stated that victims' rights would be equal to the rights of an accused, while the language of the amendment actually provided that victims' rights could exceed the rights of an accused. Further, the question told voters that the federal rights of an accused would remain intact, misdirecting voters and failing to tell them that state constitutional and statutory rights of an accused were being eliminated. WJI's argument on these points relied on Wisconsin Supreme Court cases from 1925 (Ekern) and 1953 (Thomson), which no party to the case, including the defendants-appellants in their briefs to the Supreme Court and lower courts, had questioned. Finally, WJI argued that Marsy’s Law contained more than one amendment, requiring multiple ballot questions. The guts
Just as the purpose of statutory interpretation is to determine what the statutory text means, the purpose of constitutional interpretation is to determine what the constitutional text meant when it was written, commonly called the original public meaning or original understanding. Although constitutional language is at times written with less precision, that fact does not fundamentally change the nature of our charge. We must similarly focus on the constitutional text, reading it reasonably, in context, and with a view of the provision's place within the constitutional structure. Other sources such as the debates and practices at the time of adoption, along with early legislative enactments, may prove helpful aids to interpretation. Just as we leave policy choices to the legislature in statutory interpretation, we must leave policy choices to the people in constitutional interpretation. *** This court has doubled down on this approach in recent years. In State v. Roberson, for example, we overruled our prior decision in State v. Dubose, which had adopted new requirements for the admissibility of out-of-court identification evidence under the Wisconsin Constitution. We did so, however, not based on the policies reflected in this decision, but based on our assessment of the "original meaning of the Wisconsin Constitution." We recognized that while state constitutions may provide further protection to citizens than the federal Constitution, "the question for a state court is whether its state constitution actually affords greater protection." Critically, we held, "A state court does not have the power to write into its state constitution additional protection that is not supported by its text or historical meaning." *** Our constitutional analysis begins with the text. As relevant to this dispute, following initial adoption in the legislature and other procedural requirements, the constitution requires "the legislature to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe." This language commands only two things: First, the amendment must be "submitted" to the people; and second, it must be done in the manner and at the time prescribed by the legislature. . . . Hagedorn then discusses how in the early years after adoption of the Wisconsin Constitution, ballot questions were submitted as simple up or down votes. Thus, no ballot question in the first 22 years after the constitution was adopted contained any substantive description of the amendment at all. So far as we can tell, no one questioned the validity of this process. If in fact the constitution requires the content of a proposed amendment to be included in the ballot question, the inescapable conclusion is that every one of these amendments was submitted to the people in an unconstitutional manner — with no one batting an eye. That is highly unlikely. The overwhelming, indeed, uniform teaching of the text and history surrounding Article XII, Section 1 of the Wisconsin Constitution is that an amendment only needs to be submitted to the people for ratification. It need not — as a constitutional prerequisite — contain any kind of description of the amendment's substance. Hagedorn then discusses how the Legislature beginning in 1870 added a general subject area to the ballot question and in 1874 presented a longer, more substantive question to voters, "immediately followed by a return to ballot questions without subject matter." The first case to address the manner of the legislature's submission to the people occurred in 1925. The question before this court in Ekern was whether the legislature complied with the constitution when it delegated the drafting of a ballot question to the secretary of state. We held that this was permissible. The constitution requires that the legislature determine the "manner" of submission to the people, and we concluded this language was broad enough to encompass directing the secretary of state to determine the content of the ballot question. Although extraneous to the issue in the case, the court engaged in an extended digression regarding the content and design of ballot questions. Because this language is the genesis for the proposed "every essential" test we are asked to breathe life into in this case, we quote the discussion at length and in context: ". . . . Had the framers of the constitution intended that the legislature should prescribe the form, it might easily have done so by using a few additional words, or it might have so worded the provision that the idea of form would have been necessarily included by implication. This, however, was not the case, and it is highly probable that the framers had in mind the vital distinction existing between matters of substance and matters of mere form. Had the legislature in the instant case prescribed the form of submission in a manner which would have failed to present the real question, or had they by error or mistake presented an entirely different question, no claim could be made that the proposed amendment would have been validly enacted. In other words, even if the form is prescribed by the legislature it must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment. This demonstrates quite clearly the fact that the form of submission is after all a mere form, and that the principal and essential criterion consists in the submission of a question or a form which has for its object and purpose an intelligent and comprehensive submission to the people, so that the latter may be fully informed on the subject upon which they are required to exercise a franchise." (Emphasis added by Hagedorn.) Reviewing this discussion, the "every essential" language does not read as a separate test. Rather, it comes as an explanatory statement (phrased as "[i]n other words") for the comment that the real question, not an entirely different question, must be submitted to the people. Therefore, an effort to infuse constitutional significance into this language is not an accurate reading of Ekern on its own terms. The relevant discussion in Ekern simply does not set forth a substantive, explainable "every essential" test at all. And why would it? The content of the ballot question was not challenged and was not at issue. There was no need to create, much less apply, a new substantive constitutional test. Therefore, we do not understand Ekern as adopting or creating a new, undefined, and strict constitutional test for detail and accuracy in constitutional amendment ballot questions. Rather, Ekern's discussion is best read as affirming the unremarkable proposition that the real question of the amendment must be submitted to the people. This is consistent with the constitutional requirement that a proposed amendment must be "submitted" in order to be validly ratified. Where a question is not the real question at all, such a proposal cannot be said to be submitted to the people. *** The ballot question in Thomson stated that, if approved, "the legislature shall apportion senate districts along" certain municipal lines — using mandatory language. The problem, we explained, is "the actual amendment . . . has no such mandate at all and under it the legislature is uncontrolled except that the territory inclosed shall be 'contiguous' and 'convenient.'" The question given to the voters was the opposite of what the amendment actually provided. We concluded the question was misinformation and not "in accord with the fact." We cited Ekern and concluded that the "question as actually submitted did not present the real question but by error or mistake presented an entirely different one." Accordingly, there was "no valid submission to or ratification by the people." To this day, Thomson remains the only case in state history where a constitutional amendment was deemed invalid because it was not "submitted" to the people. *** Hagedorn then states that these principles of law follow from his discussion of the ballots and caselaw. First, Article XII, Section 1 does not require any substantive discussion of the amendment in the ballot question submitted to the people. No explanation or summary is constitutionally commanded. Second, the constitution requires that the amendment be "submitted" to the people for ratification. We held in Thomson, borrowing language from Ekern, that an amendment has not been "submitted" to the people when the ballot question fails to present the real question or is contrary to the amendment itself. In other words, voters have not been given the opportunity to vote for or against a proposal when the ballot question is fundamentally counterfactual. When a ballot question is factually inaccurate in a fundamental way, it cannot be said that the amendment was actually submitted to the people for ratification. But given the unique facts of Thomson and the broad authority given to the legislature in the constitution, this requirement is narrow and will be triggered only in rare circumstances. Third, this court has never, in a single case, developed or applied an "every essential" test for review of proposed constitutional amendments. Nowhere in our two cases that use this language have we established, defined, or utilized such a test. And finally, because it is our solemn obligation to follow the original meaning of the constitution, we will not design, invent, or breathe life into the so-called "every essential" test without a constitutional command to do so. Insofar as the content of a proposed ballot question is concerned, the relevant constitutional question is whether the proposed amendment was, at a basic level, submitted to the people for ratification. A ballot question could violate this constitutional requirement only in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment. These principles in hand, we examine WJI's argument that the ballot question at issue here failed to satisfy this constitutional requirement. *** First, WJI argues that the ballot question fails because it does not mention the new section creating a constitutional definition of a "victim." In an amendment of this length and complexity, the legislature had to make choices of what to include and how to phrase it. We must give significant deference to the legislature in making these choices because the constitution affords the legislature substantial discretion in submitting an amendment to the people. While the legislature could have decided that more be said, WJI's legal argument depends on its erroneous contention that the constitution demands a more exacting review of the legislature's choices. It does not. A constitutional definition of "victim" fits comfortably within the statement that crime victims are given certain or additional rights, as the ballot question states. Nothing here is fundamentally counterfactual such that voters were not asked to approve the actual amendment. Second, WJI contends the ballot question failed to correctly capture how the rights of the accused would change. It offers several arguments in this regard. WJI asserts the ballot question is misleading because it requires "that the rights of crime victims will be protected with equal force to the protections afforded the accused," while the text of the amendment says victim rights will "be protected by law in a manner no less vigorous than the protections afforded to the accused." While the parties debate the import of this wording choice, we again emphasize the deference owed to the legislature in explaining the proposal to the people. Minor deficiencies in a summary (and all summaries will, by necessity, be incomplete) do not give rise to the kind of bait-and-switch we struck down in Thomson. This does not rise to the level of a fundamentally counterfactual question such that voters were not asked to approve the actual amendment. WJI additionally suggests the ballot question is misleading because the amendment reduces the rights of the accused. Prior to Marsy's Law, Article I, Section 9m stated, "Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law." Marsy's Law struck this sentence and added: "This section is not intended and may not be interpreted to supersede a defendant's federal constitutional rights or to afford party status in a proceeding to any victim." WJI says the ballot question was misleading because this change in its view could reduce the rights of the accused in some situations, yet voters were told "the federal constitutional rights of the accused" would be left intact. We once again return to the relevant question: the issue is not whether the amendment was explained, but whether it was "submitted" to the people. Nothing in the constitution requires that all components be presented in the ballot question. The constitution leaves the level of detail required to the legislature, which may impose more or less requirements on itself. The failure to raise an issue in a summary or describe it with precision does not amount to the kind of wholesale inaccuracy of Thomson or suggest the amendment was not submitted to the people. This as well does not rise to the level of a fundamentally counterfactual question such that voters were not asked to approve the actual amendment. *** Hagedorn then turns to the issue of whether multiple ballot questions were required. Our most recent formulation of the test was in . . . a case challenging the adoption of Article XIII, Section 13, governing marriage. There, we articulated the test as follows: "It is within the discretion of the legislature to submit several distinct propositions as one amendment if they relate to the same subject matter and are designed to accomplish one general purpose. The general purpose of an amendment may be deduced from the text of the amendment itself and from the historical context in which the amendment was adopted. And all of the propositions must tend to effect or carry out that purpose." Applying this test, we concluded a single amendment was appropriate because "the general purpose of the marriage amendment is to preserve the legal status of marriage in Wisconsin as between one man and one woman. Both propositions in the marriage amendment relate to and are connected with this purpose." The parties do not dispute that this is the governing test. And we see no reason to question the textual and historical analysis . . . . Employing this test, we have no difficulty concluding Marsy's Law did not violate the constitutional prohibition on submitting multiple amendments as one. The amendment broadly protects and expands crime victims' rights. This is plain from the text and history of its adoption. In so doing, it amends only Section 9m of Article I. Even if WJI is correct that it will impact those accused of crimes as well (an issue we need not decide), all of the changes relate to the same, general purpose of expanding and protecting the rights of crime victims. All of the propositions are aimed at this goal, and tend to effect or carry this out. We hold that WJI's challenge to Marsy's Law on the ground that it was required to be submitted as separate constitutional amendments fails. As we await opinions from the Supreme Court of Wisconsin's new term, we will go back to a few decisions from last term and crunch them down to size. Note: The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. The case: Rachel Slabey v. Dunn County, Wisconsin, et. al Majority: Chief Justice Annette Kingsland Ziegler (30 pages) Dissent: Justice Jill J. Karofsky (25 pages), joined by Justice Ann Walsh Bradley The upshot Slabey argues that her § 1983 claim against Dunn County survives summary judgment because she presented evidence sufficient for a reasonable jury to find that Dunn County violated her rights under the Eighth and Fourteenth Amendments to the United States Constitution when then-Dunn County Correctional Officer Ryan Boigenzahn sexually assaulted her. According to Slabey, Dunn County is liable because the "County was deliberately indifferent to a substantial risk of harm to Slabey by failing to thoroughly investigate, appropriately discipline, and adequately supervise Boigenzahn." Slabey argues that the circuit court erroneously granted Dunn County summary judgment and that the court of appeals erred in affirming that result. We conclude that Slabey's § 1983 claim against Dunn County fails because, under Monell v. Department of Social Services, no reasonable fact finder could conclude that Dunn County was the causal, moving force behind the sexual assault. . . . Background Ryan Boigenzahn began working as a correctional officer ("CO") at the Dunn County Jail in April 2011. As part of his training, Dunn County required Boigenzahn to attend the Jail Academy at Nicolet College. There, Boigenzahn took a month-long, 160-hour course where, according to Boigenzahn, he learned "what it is to be a corrections officer in the state of Wisconsin." Boigenzahn was also required to participate in the course's Prison Rape Elimination Act of 2003 ("PREA") training. Boigenzahn admitted during his deposition that he "learn[ed] through that training . . . that sexual contact between inmates and prisoners was" prohibited by law. He passed the training course, and he received his certification from the Law Enforcement Standards Board in June 2012. . . . Dunn County also required Boigenzahn to review and certify that he reviewed all Dunn County policies, including the County's fraternization, sexual misconduct, and PREA policies. Boigenzahn signed these policies, stating, "I certify that I have read, understand, and will comply with the policies . . . ." The sexual misconduct/PREA policy prohibits all staff, including COs like Boigenzahn, from engaging in sexual misconduct, which the policy defines as follows: "Sexual Misconduct is any behavior or act of a sexual nature directed toward an inmate, detainee, victim, witness, or complainant by any employee, volunteer, vendor, contractor, visitor or agency representative. . . ." According to Boigenzahn's training log, he completed at least eight reviews of the County's fraternization, sexual misconduct, or PREA policies. After each policy review, Boigenzahn certified that he read and understood the policy. On July 31, 2015, a CO informed Sergeant Michael Owens that inmate J.W.B. expressed that staff needed to "keep a close eye on [the] 'male COs.'" Sergeant Owens immediately began investigating. . . . He discovered no evidence of misconduct and determined "[t]he allegation [was] not supported on a factual basis." Sergeant Owens recorded the results of his investigation in a report and, according to County policy, forwarded that report to his supervisor. On August 6, 2015, a different inmate, B.M., said to Sergeant Douglas Ormson that "she actually had a lot of respect for the staff at the Jail, except for one person who she felt was in danger of 'crossing the line.'" Sergeant Ormson asked B.M. who she was referring to and to elaborate. B.M. identified Boigenzahn and said he "was too chummy with some of the females." . . . The next day, Sergeant Ormson discussed this matter with Sergeant Owens, who stated he heard similar allegations, and Sergeant Rachel Vold. The three decided that Sergeant Vold would review surveillance footage to investigate the allegations. Sergeant Vold reviewed two weeks of surveillance footage and found two concerning instances. On July 29, 2015, while delivering medications to inmates, Boigenzahn "playfully reach[ed] out his foot to step on [A.D.]'s foot." On August 6, 2015, again while delivering medications, Boigenzahn "gesture[d] with his head as if motioning someone to come in his direction, and also with his right arm. [A.D.] then [came] running over to him. . . . [A]s she walk[ed] away she brush[ed] him with her hand on his shoulder/chest area." Pursuant to Dunn County policy, Sergeant Vold forwarded this information to the Jail Captain on August 10, 2015. . . . . . . . Boigenzahn initially denied passing notes between inmates, but he admitted to doing so once the Jail Captain and Chief Deputy reminded Boigenzahn that he could be terminated for lying. Boigenzahn said he made a "dumb mistake passing (a) note and it w[ould] not happen again." They also showed Boigenzahn the videos of him and A.D., but he denied that there was any inappropriate conduct. . . . Pursuant to Dunn County policy, the matter was then brought to the Dunn County Sheriff. Based on the results of the investigation, the Sheriff decided that Boigenzahn violated Dunn County's policies which prohibited fraternization and unbecoming conduct. The Sheriff decided to impose discipline. Boigenzahn was suspended without pay for 3 days. About nine months later, in May 2016, inmate A.D. reported to Sergeant Vold that Boigenzahn again acted inappropriately. She stated that Boigenzahn frequently contacted inmate B.S. A.D. stated that on one occasion Boigenzahn accepted a note that was sexual in nature from B.S. Surveillance footage showed that on April 17, 2016, at 2:32 a.m., Boigenzahn spent 12 minutes out of camera view and near B.S.'s bunk. Boigenzahn later admitted that he did receive the note from B.S. On May 19, 2016, the County placed Boigenzahn on administrative leave, and on May 31, 2016, he was terminated. About one month after Dunn County terminated Boigenzahn, on June 27, 2016, inmate Slabey was heard saying, "[Boigenzahn] must have stuck his hand down somebody else's pants, too." According to Slabey, she said this "jokingly." Pursuant to County policy, the Jail Captain called her supervisor, the Chief Deputy, and the matter was reported to the Sheriff. The Sheriff requested that an outside agency investigate Slabey's allegations. The Menomonie Police Department then investigated the allegations against Boigenzahn. The criminal investigation regarding Slabey's statement revealed that on March 25, 2016, about seven months after Boigenzahn was first disciplined by the County, he sexually assaulted Slabey. . . . Notably, it was just two days prior to the sexual assault that, pursuant to Dunn County policy, Boigenzahn had attended a legal update session that included PREA training. Boigenzahn admitted that, at the time of the sexual assault, he knew it was against state law, against County policy, and against PREA. The guts The parties do not dispute that Slabey suffered a constitutional deprivation because she was sexually assaulted by Boigenzahn. The issue in this case is not whether Boigenzahn committed a sexual assault. He did, and what he did to Slabey was terribly wrong. But a claim against Boigenzahn is not the claim we analyze today. Whether Dunn County is liable to Slabey under 42 U.S.C. § 1983 is an altogether separate legal inquiry. . . . In short, Slabey asserts that "Dunn County was deliberately indifferent to a substantial risk of harm to Slabey by failing to thoroughly investigate, appropriately discipline, and adequately supervise Boigenzahn." *** In the Monell case, the Supreme Court explained that "Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort." "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." . . . To prevail in her claim under 42 U.S.C. § 1983 against Dunn County, Slabey must demonstrate that the County caused her constitutional deprivation. Slabey argues that causation is satisfied because (1) "Dunn County failed to thoroughly investigate claims that Boigenzahn's conduct would cross a line"; (2) "Dunn County failed to appropriately discipline Boigenzahn in light of the clear risk of harm that his conduct posed to inmates generally and Rachel Slabey specifically"; and (3) Dunn County "failed to properly supervise Boigenzahn to prevent any further escalation of his misconduct." Slabey argues that these acts of the County caused her constitutional deprivation because they "caused Boigenzahn's conduct to escalate to Slabey's assault." "Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of . . . causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee." Monell requires plaintiffs to "demonstrate a direct causal link between the municipal action and the deprivation of federal rights." . . . A plaintiff bringing a § 1983 claim under Monell must demonstrate that a municipality was not just a cause, but the "moving force" behind the constitutional deprivation. . . . . The requirement is "applied with especial rigor when the municipal policy or practice is itself not unconstitutional, for example, when the municipal liability claim is based upon inadequate training, supervision, and deficiencies in hiring." In such cases, a § 1983 plaintiff "must" prove causation by showing "that the municipal action was taken with 'deliberate indifference' as to its known or obvious consequences. A showing of simple or even heightened negligence will not suffice." Evidence of a "pattern of tortious conduct" is typically necessary to establish that the municipal action "rather than a one-time negligent administration of the program or factors peculiar to the officer involved in a particular incident, is the 'moving force' behind the plaintiff's injury." Slabey acknowledges that hers is a "single incident" case because of the "absence of prior sexual assaults of female inmates by male guards." She argues that, although the single incident theory governs her claim, she nonetheless prevails under that theory because "Dunn County acted with deliberate indifference to a significant, obvious risk of sexual violence to all female inmates." *** . . . . Dunn County thoroughly investigated the August 2015 complaint and acted in a timely manner to impose unpaid leave on the officer. Boigenzahn was sternly warned for the policy violations, which were passing notes between inmates and non-sexual physical contact with an inmate. He was warned that his behavior would not be tolerated and that he could be terminated. Leave without pay was one of the most severe options of discipline, just short of termination. When Boigenzahn returned to duty, he was required to continue training and monthly policy reviews. Nine months had gone by with Boigenzahn working as a CO, and there was no indication of his noncompliance. The very next time the County learned that Boigenzahn was noncompliant because he had received a note from an inmate, he was terminated. . . . Slabey argues Dunn County acted with deliberate indifference to a known or obvious consequence that Boigenzahn would sexually assault an inmate when it "failed to thoroughly investigate claims that Boigenzahn's conduct would cross a line," "failed to appropriately discipline Boigenzahn in light of the clear risk of harm that his conduct posed to inmates generally and Rachel Slabey specifically," and when it "failed to properly supervise Boigenzahn to prevent any further escalation of his misconduct." However, this allegation in the August 2015 complaint was thoroughly investigated. The County officials reviewed two weeks of surveillance video, interviewed inmates, and concluded that Boigenzahn committed a serious violation of County policy. The evidence demonstrated that Boigenzahn passed notes between inmates and had inmate nonsexual contact. The County acted within a month from allegation to discipline. The matter did not languish. Despite several less severe options, Boigenzahn was suspended for three days without pay and sternly warned, "If you fail to [correct your improper conduct], you will subject yourself to further disciplinary action, including discharge and termination of your employment with the County." He was also given additional PREA training two days before the assault. For about nine months after Boigenzahn returned, Dunn County had no reason to believe he was noncompliant. *** In short, Dunn County is entitled to summary judgment because there is insufficient evidence for a reasonable fact finder to conclude that Dunn County was the moving force behind her being sexually assaulted. Boigenzahn sexually assaulting Slabey was the result of his action, which was completely forbidden by Dunn County and the criminal law. It is hindsight alone that underlies Slabey's causation theory. . . . Taken together, these facts do not demonstrate that the known or obvious consequence of the County's action or inaction was that Boigenzahn would sexually assault an inmate. Here, there is insufficient evidence that Dunn County acted with deliberate indifference to a known or obvious consequence that Boigenzahn would sexually assault Slabey. The circuit court was correct to grant Dunn County summary judgment on Slabey's § 1983 constitutional deprivation claim. We affirm the court of appeals. The dissent While the standards for establishing municipal liability under § 1983 are rigorous, "they are not insurmountable." In order to establish liability and survive summary judgment on her claim against Dunn County, Slabey must bring sufficient evidence for a jury to reasonably find that Dunn County (1) had an official policy, custom, or decision, (2) that demonstrated the requisite level of culpability, and (3) caused her injury. . . . First, Slabey must identify an official Dunn County policy or custom that caused her injury. The Supreme Court has recognized that a decision by an official with final policy-making authority meets this requirement—that is, municipal liability attaches when "a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Inaction, as well as action, may serve as the basis for municipal liability, depending on the circumstances. Second, Slabey must establish Dunn County's culpability, which under Monell means that she must provide sufficient evidence for a jury to find that the county's actions demonstrated a "deliberate indifference" to the "known or obvious" consequence that a constitutional violation would occur. While a pattern of constitutional violations is "ordinarily necessary" to establish the requisite notice that an official course of conduct is inadequate, the risk of a constitutional violation may be so obvious that the municipality's actions could demonstrate deliberate indifference to that risk. The Supreme Court in City of Canton v. Harris provided the following example of deliberate indifference: if city policymakers, having armed their police officers with firearms, fail to train those officers on the constitutional limitations on deadly force, that failure could be characterized as deliberate indifference. . . . And in J.K.J. v. Polk County the Seventh Circuit provided another, one relevant to this case: the failure to institute more robust policies to prevent the sexual assault of female inmates in the face of a guard's escalating behavior can demonstrate deliberate indifference to the known or obvious risk of sexual assault. Third, Slabey must establish sufficient evidence for a jury to find that Dunn County's actions caused her injury. That is, the official actions must be the "moving force" behind the constitutional violation. . . . Slabey established sufficient evidence for a jury to find for her on each of these three requirements by: (1) identifying a course of action by a final policy-maker—namely, the Sheriff's choice to return Boigenzahn to his standard shift with no additional supervision; (2) alleging sufficient evidence for a jury to conclude that the risk of sexual assault was so predictable that the Sheriff's course of action constituted deliberate indifference; and (3) alleging sufficient evidence to show that the Sheriff's course of action caused the sexual assault. Her § 1983 claim against Dunn County should therefore survive summary judgment. . . . . . . . As Slabey points out, and Dunn County does not dispute, the Sheriff was the final policy-maker for staffing and disciplinary decisions at the Dunn County Jail. And he, as that final policy-maker, deliberately chose to adopt a particular course of action—to retain Boigenzahn and send him back to guard female inmates alone, on the lightest-staffed shift, with no additional supervision, investigation, or follow up. The Sheriff had "various alternatives" to his course of action. One of those alternatives was to terminate Boigenzahn. Termination was not just an option, but (as the Sheriff acknowledged), the typical disciplinary response for violations of the fraternization policy. Another alternative was to adjust Boigenzahn's schedule to accommodate increased supervision and monitoring of his behavior. The Sheriff considered these alternatives, but instead chose the one course of action that would allow Boigenzahn to spend significant time alone and unmonitored with female inmates. *** Slabey also met the culpability requirement because she presented enough evidence for a jury to reasonably find that the Sheriff's official course of action was taken with deliberate indifference to the known or obvious risk that a sexual assault would occur. Whether the risks were known or obvious and whether the Sheriff acted with deliberate indifference are questions of fact. . . . (A) jury, assessing the facts of this case, could reasonably conclude that: (1) Boigenzahn’s prior behavior created a known or obvious risk that he would sexually assault an inmate and (2) the Sheriff's decision to send Boigenzahn back to guard female inmates reflected deliberate indifference to that risk. *** . . . . (E)vidence of an obvious risk of sexual assault can support both a finding of "deliberate indifference" and "an inference of causation—that the municipality's indifference led directly to the very consequence that was so predictable." If a jury could reasonably conclude that the risk of sexual assault was obvious enough that the failure to take action constituted deliberate indifference, it may take "but a small inferential step" for a jury to find that the failure to take action caused the injury. Causation, like culpability, is a fact question for a jury—"finding causation is not a mechanical exercise like working a math problem and getting an answer, but instead requires jurors to view evidence in its totality, draw on their life experiences and common sense, and then reach reasonable conclusions about the effects of particular action and inaction" (emphasis in original). Here, Slabey established enough evidence for a jury to do so. *** Based on the evidence Slabey provided, a jury could find that Dunn County Sheriff's Department officials ignored the clear warning signs that Boigenzahn had already engaged in inappropriate and escalating behavior with female inmates and then created the circumstances that allowed Boigenzahn to sexually assault Slabey. The Sheriff's deliberate course of action enabled Boigenzahn to escape detection for 45 minutes as he was working alone, unsupervised, and unmonitored in the Huber dorm on the night he sexually assaulted Slabey. Slabey provided sufficient evidence for a jury to reasonably find that the Sheriff's course of action both demonstrated deliberate indifference and was the causal "moving force" behind the sexual assault. Slabey's § 1983 claim against Dunn County should therefore survive summary judgment. When municipalities take inmates into custody, they assume a responsibility to protect them from sexual assault. But this responsibility means little if the justice system is unwilling to hold municipalities accountable when they fail to protect their inmates. When municipalities are not held to account, measures like PREA, enacted to eliminate sexual assault in jails and prisons, are reduced to little more than a perfunctory policy for correctional staff to sign, then freely disregard. Dunn County threw a match into the tinderbox when it sent Boigenzahn back to guard female inmates. The majority's failure to hold Dunn County accountable is akin to standing idly by as the fire burns. By Alexandria Staubach
A rule petition to the Wisconsin Supreme Court, brought by the State Bar of Wisconsin, sought to create a new category of continuing legal education: the “Diversity, Equity, Inclusion, and Access” (DEIA) credit. The Supreme Court denied the petition without giving it a hearing. Justice Rebecca Grassl Bradley authored a 33-page concurrence, joined in full by Justice Patience D. Roggensack and in part by Chief Justice Annette K. Ziegler, which railed against the validity of DEIA. Often, the concurrence cities dubious and deeply partisan scholarship in addition to a Justice Clarence Thomas concurrence to a recent U.S. Supreme Court decision gutting the remnants of affirmative action in college admissions. In follow up to the SCOW docket report on that order and concurrence, WJI examines a few of the authors and their writings cited by Grassl Bradley to support her argument that “DEIA courses damage human dignity, undermine equality, and violate the law.” Grassl Bradley: “Various institutions promote a lie designed to divide: ‘human beings are defined by their skin color, sex, and sexual preferences; that discrimination based on those characteristics has been the driving force in Western civilization; and that America remains a profoundly bigoted place, where heterosexual white males continue to deny opportunity to everyone else.’ ” The cite: Heather Mac Donald, The Diversity Delusion: How Race and Gender Pandering Corrupt the University and Undermine our Culture 2 (2018). The author: Mac Donald is a conservative political commentator, attorney, and author. She is a fellow at the conservative think tank Manhattan Institute for Policy Research and made a name for herself in opposition to criminal justice reform. She advocates that overemphasis on and education around white privilege and toxic masculinity on college campuses is driving racial divisiveness. She blames the “academic left and its imitators in politics and the mass media” for racial divisiveness in the U.S. and blames the left for emboldening white supremacists. Mac Donald dismisses police racism in favor of the “far larger problem: black on black crime,” and has argued in favor of racial profiling in policing. Mac Donald is deeply critical of the Black Lives Matter movement and accused President Barak Obama of “attacking the very foundation of civilization” in lending credibility to the movement. Grassl Bradley: “Nice-sounding euphemisms aside, DEIA initiatives often presuppose the existence of certain ‘universal values,’ which are not actually universally shared in an effort to stifle debate.” The cite: Ben Shapiro, How to Debate Leftists and Destroy Them: 11 Rules for Winning the Argument 22 (2014). The author and his rules: Shapiro is a conservative political commentator, author, media personality, podcast host, and attorney. In 2004 he graduated from college at UCLA and published his first book, Brainwashed: How Universities Indoctrinate America’s Youth, which argues that the ideological left generally control universities and that professors are intolerant of non-left opinions. He later graduated from Harvard Law School. Shapiro served as the editor-at-large for Breitbart News from 2012-2016. He is the author of articles with titles including “5 Times Hillary and Bernie Pandered to Blacks During the Last Debate,” “Antonin Scalia’s Death Could Mark the End of Constitution,” and “The Real Reason Republicans Love America More than Democrats.” His “11 Rules” discussed in the 2014 pamphlet begin with the following four: Rule #1: Walk Toward the Fire – “The left knows this is war. And they know you are the enemy. You will be castigated. You will get punched. That’s the way it will go because that’s how the left wins: through intimidation and cruelty. You have to take the punch, you have to brush it off. You have to be willing to take the punch.” Rule #2: Hit First – “Don’t take the first punch. Hit first. Hit hard. Hit where it counts.” Rule #3: Frame Your Opponent – “You’ve researched your opponent; you’ve game planned him. You know he’s going to call you a racist, because he always calls his opponents racists. So hit him first by pointing out his vicious tactic.” Rule #4: Frame the Debate – “The left is expert at framing debates They have buzzwords they use to direct the debate toward unwinnable positions for you. They are tolerant, diverse, fighters for social justice, if you oppose them, by contrast you are intolerant, xenophobic, and in favor of injustice. All these terms are – to be polite – a crock, if considered as absolute moral values … The left’s use of magical buzzwords places you in a corner, against supposed universal values that aren’t universal or universally held. It’s important that you neuter those buzzwords quickly, because otherwise you will be arguing against nonsense terms that can be used against you.” Grassl Bradley: “ ‘Ultimately identity politics should be rejected … because it poses a threat to republican self-government by corroding patriotic ties, fostering hatred, promoting cultural separatism, and demanding special treatment rather than equality under the law.’ ” The cite: David Azerrad, “The Promise and Perils of Identity Politics,” First Principles Essays, Jan. 23, 2019, at 1. The author: Azerrad holds a Ph.D. in politics from the University of Dallas. He has taught courses on conservative and progressive political thought at American University and is a former staffer at the conservative think tank The Heritage Foundation. In the Spring of 2021 Azerrad gave a talk at St. Vincent College on “Black Privilege and Racial Hysteria in Contemporary America,” in which he (in his own words later discussing his talk) “denounced the widespread system of preferential treatment that benefits our fellow black citizens, including the prohibition on noticing said system” and “criticized the excessive praise showered on mediocre black composers, scientists, and writers from the past.” In a September 2022 talk at the National Conservatism Conference he discussed “the LGBTQ agenda and the damage it has done to American families,” labeled Millenials and members of Generation Z as “the most coddled, mentally unstable, historically ignorant, lowest testosterone, and woke generation in history,” and said that “the left is not sending their best” but instead is represented by “incompetent diversity hires” and “overweight, ugly, mentally unstable, cross-dressing, low-IQ people.” Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. The case: State of Wisconsin vs. Quaheem O. Moore Majority: Justice Brian K. Hagedorn (12 pages), joined by Chief Justice Annette Kingsland Ziegler and Justices Patience Drake Roggensack and Rebecca Grassl Bradley Dissent: Justice Rebecca Frank Dallet (11 pages), joined by Justices Ann Walsh Bradley and Jill J. Karofsky The upshot After he was pulled over for speeding, officers searched Quaheem Moore based primarily on the smell of marijuana emanating from his vehicle. The circuit court suppressed the results of that search, and the court of appeals affirmed. The State contends this was error. It argues the officers had probable cause to arrest Moore, and thus, this was a lawful search incident to arrest. We agree and reverse. Background On November 17, 2019, City of Marshfield Police Officer Libby Abel executed a traffic stop for speeding. While attempting to make the stop, Officer Abel "observed some sort of liquid fly out of the driver's window" and noticed the vehicle hit a curb while turning onto a side street. Officer Abel approached the vehicle, identified the driver and sole occupant as Quaheem Moore, and questioned him about the speeding and the liquid. During this initial contact, Officer Abel "detected an odor of raw marijuana." She called for back-up, and Officer Mack Scheppler arrived on the scene. Both officers escorted Moore out the vehicle, in between his vehicle and Officer Abel's squad car. Officer Abel performed an initial safety pat-down for weapons. She did not find any, but she did discover a vaping device. She asked Moore if it was a THC (tetrahydrocannabinols) vape, and he responded that it was a CBD (cannabidiol) vape pen. Officer Abel proceeded to question Moore. She first asked about the liquid, which she said she could still see on the side of the car and inside the window; but Moore denied throwing anything out of the window. He explained that the vehicle was his brother's rental, and that he had taken it to the car wash earlier in the day. Officer Abel next asked Moore if he had been drinking, which he also denied. Then, Officer Abel told Moore that she smelled marijuana coming from the vehicle, but he immediately expressed disbelief. Officer Scheppler confirmed that he too smelled marijuana, and later described the odor as overwhelming. Moore continued to express his disbelief and insisted that the officers could not smell marijuana on him. Officers Abel and Scheppler agreed, indicating the smell was coming from the vehicle, not from Moore. Eventually, the officers told Moore that they were going to search him based on the odor of marijuana. Officer Scheppler found only cash at first. Officer Abel then stepped away to search Moore's vehicle while Officer Scheppler and Moore chatted. Several minutes later, Officer Scheppler noticed Moore's "belt buckle was sitting a little higher on his pants" and decided to examine the zipper area. . . . Officer Scheppler ultimately found two plastic baggies containing cocaine and fentanyl in a false-pocket behind Moore's zipper. The State charged Moore with two crimes: possession with intent to deliver narcotics and possession with intent to deliver more than one but less than five grams of cocaine——both as second and subsequent offenses and as a repeater. Moore moved to suppress evidence of the cocaine and fentanyl found by Officer Scheppler, arguing the State lacked probable cause to arrest and therefore to search him. The circuit court agreed and granted the motion. The court of appeals affirmed, and we granted the State's petition for review. The guts The United States Constitution provides: "The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated ....” "Warrantless searches are presumed to be unconstitutional." But there are exceptions, and the State bears the burden to prove an exception applies. One exception is a search incident to an arrest. When conducting a search incident to arrest, the officer is not required to formally arrest before the search. The "search may be incident to a subsequent arrest if the officers have probable cause to arrest before the search." "Probable cause to arrest is the quantum of evidence within the arresting officer's knowledge at the time of the arrest which would lead a reasonable police officer to believe that the defendant probably committed or was committing a crime." This requires more than a mere hunch or reasonable suspicion, but "does not require proof 'beyond a reasonable doubt or even that guilt is more likely than not.'" Probable cause is an objective test that "requires an examination of the totality of the circumstances."... *** (T)he issue presented here is, examining the totality of the circumstances, whether a reasonable law enforcement officer would believe Moore probably committed or was committing a crime. The answer is yes. When Officer Abel pulled Moore over, she watched his vehicle hit the curb and observed a "liquid fly out the driver's window"; she later saw the liquid on the side of the car as well. And when she first approached the vehicle, she smelled raw marijuana. Officer Scheppler smelled it too, and even called it overwhelming. The circuit court found both officers' testimony regarding the smell credible, stating multiple times in its decision that the officers smelled a "strong" odor of marijuana. Moore does not challenge this factual finding. Critically, Moore was the sole occupant of the vehicle. And he was in possession of a vape pen. Taken together, a reasonable officer would believe it was Moore that was responsible for the overwhelming odor of a prohibited substance emanating from a vehicle with no other passengers. The officers need not know with certainty that Moore was committing or had committed illegal activity, but they had more than enough to meet the modest bar that it was probably true. Therefore, the officers had probable cause to believe a crime was or had been committed — at the very least, possession of THC. Moore provides several counterarguments, none of which are persuasive. First, he contends that the odor of marijuana was not sufficiently linked to him because the officers did not smell it on him, only in his vehicle.... (However), “(t)he strong order of marijuana in an automobile will normally provide probable cause to believe that the driver and sole occupant of the vehicle is linked to the drug.” That leads to Moore's second counterpoint: the vehicle was not his, but his brother's rental. While this could constitute an innocent explanation — albeit, a strained one — Moore misses the legal standard. Who owned the title or signed the rental lease does not change the analysis. A reasonable law enforcement officer would still likely conclude, absent other facts not in the record, that the driver and sole occupant of the vehicle was probably connected to the illegal substance whose odor the officer clearly detected in the vehicle. Third, Moore contends that the odor of marijuana cannot be unmistakable when there are innocent explanations for it — such as the odor of CBD, a legal substance that Moore stated his vape pen was used for. The circuit court referenced this as well: "The State notes that CBD and marijuana are indistinguishable in their odor.”... While the officers might have reasonably inferred that the smell from the vehicle was CBD, that was not the only inference they could draw — they also could infer (and they did) that the smell was THC. It is black letter law that "an officer is not required to draw a reasonable inference that favors innocence when there also is a reasonable inference that favors probable cause." Therefore, while an innocent explanation may exist, we still conclude under the facts of this case, a reasonable law enforcement officer would infer that Moore had probably committed or was committing a crime. Finally, Moore notes that neither Officer Abel nor Officer Scheppler testified with respect to their training and experience to detect the smell of marijuana. He asserts that without this testimony, the State failed to establish the odor was unmistakable.... The circuit court acting as fact-finder here found the officers' testimony credible and stated repeatedly that the officers noted the "strong smell" and "strong odor" of marijuana coming from the vehicle. It made this factual finding absent specific testimony regarding the officers' training and experience. Moore does not challenge this factual finding; nor do we conclude this finding is clearly erroneous. Furthermore, the fact that the officers testified to smelling marijuana suggests they know what marijuana smells like. It could be that a fact-finder will not believe an officer's identification of marijuana absent an on-the-record statement of training and experience. The changing legal status and ubiquity of marijuana could make the lack of such evidence vulnerable to attack. But again, we do not see why such testimony would be required… There was enough here without testimony regarding the officers' training and expertise to support a finding that they smelled illegal raw marijuana. The dissent After pulling Moore over for speeding, police officers removed him from his car to conduct a pat-down search. They found no evidence that a crime had been committed, so Moore should have been free to go, perhaps with a speeding ticket. Instead, the officers conducted a second, more thorough search of Moore and found baggies containing cocaine and fentanyl concealed in his pants. The majority concludes that this second search was permissible because the officers had probable cause to arrest Moore on the basis that the car he was driving smelled like marijuana. I disagree; because the officers lacked probable cause to arrest Moore, the evidence they found should be suppressed. *** The majority concludes that under the totality of the circumstances, "the officers had probable cause to believe a crime was or had been committed — at the very least, possession of THC." The circumstances the majority cites for this conclusion are the following:
Almost none of these circumstances "would lead a reasonable police officer to believe" that Moore possessed THC. Hitting the curb while pulling over might be evidence the driver was impaired, but Moore was not arrested for operating while intoxicated and there is no evidence of impairment from the bodycam footage or the officers' reports. Officer Abel's testimony about a liquid spraying out of the driver's side window is immaterial as well. There is nothing in the record about what the liquid was or linking it in any way to THC. Likewise there is nothing in the record that suggests Moore's vape pen was used for anything other than CBD — a legal substance. That leaves only the smell of marijuana coming from the car Moore was driving — a fact the majority all but admits is the only support for probable cause to arrest Moore. In concluding that the smell of marijuana alone gave the officers probable cause to arrest Moore, the majority relies primarily on one 24-year old case decided when the use or possession of any amount of cannabis was illegal nationwide. *** For starters, even if the officers smelled the "unmistakeable" odor of marijuana coming from the car Moore was driving, the linkage between that smell and Moore was not particularly strong.... (T)he likelihood that an occupant is linked to the smell of marijuana in a vehicle "diminishes if the odor is not strong or recent, if the source of the odor is not near th eperson, if there are several people in the vehicle, or if a person offers a reasonable explanation for the odor." Here, it is true that Moore was the sole occupant of the car, thus increasing the probability that he was linked to the smell. But that linkage is weaker than it initially appears, since neither officer smelled marijuana on Moore once he was out of the car and because Moore explained that he was driving a vehicle his brother had rented — a fact the officers subsequently verified. More fundamentally, however, legal developments in the last 24 years may call into question (whether) marijuana is "unmistakabl[y the] odor of a controlled substance." Thirty-eight states have legalized medical marijuana and twenty-three of those have also legalized recreational marijuana. Additionally, Congress modified the Controlled Substances Act in 2018 to remove hemp and hemp-derived products from the definition of marijuana, which legalized certain hemp products nationwide. This means that virtually all adults can legally purchase hemp-derived products from local CBD stores. Hemp-derived products come in a variety of processed forms like gummies, oils, and creams, as well as in their unprocessed state as hemp flowers. And just like marijuana, hemp flowers can be smoked, vaped, or eaten. Unlike marijuana, however, hemp contains only trace amounts of the psychoactive compound THC — the main psychoactive ingredient in marijuana. Experts indicate that hemp flowers and marijuana are so similar in appearance and smell that even drug detection dogs can't tell the difference. If true, this means that when a police officer smells what they believe to be the distinctive odor of either raw or burnt marijuana, they could just as easily be smelling raw or burnt hemp. In light of the nationwide legalization of hemp, this raises the question: Should the smell of marijuana alone still justify a warrantless arrest? Courts in jurisdictions that have legalized marijuana for medical or recreational purposes have answered "no" .... Dallet then discusses cases from Pennsylvania, Maryland, and Minnesota. Although Wisconsin has not yet legalized medical or recreational marijuana, or decriminalized possession or consumption of marijuana, the reasoning in these cases demonstrates that marijuana's once-unique odor may no longer serve as the beacon of criminal activity it did a quarter-century ago. ... Wisconsinites can legally purchase, transport, and smoke or vape hemp products that experts indicate are identical to marijuana in look and smell. As such, officers who believe they smell marijuana coming from a vehicle may just as likely be smelling raw or smoked hemp, which is not criminal activity. Moreover, in virtually all of Wisconsin's neighboring states — Illinois, Michigan, and Minnesota — recreational marijuana is now legal. With that, Wisconsinites may travel to neighboring states and consume marijuana without violating any state laws. And experience teaches us that smells linger in cars, sometimes long after the item responsible for the smell is gone. In sum, ... reliance on the smell of marijuana as an unmistakable indication of illegal activity sufficient to justify a warrantless arrest may no longer ring true. All things considered, the totality of the relevant circumstances here do not add up to probable cause to arrest and thus any evidence found during the search should be suppressed. Other than the officers' testimony that they smelled raw marijuana coming from the car Moore was driving, there was no reason to believe that Moore possessed THC. The smell the officers identified was not sufficiently linked to Moore under the circumstances of this case…. For all these reasons, I respectfully dissent. Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized. The case: Allen Gahl v. Aurora Health Care Inc. Majority: Justice Ann Walsh Bradley (13 pages), joined by Justices Rebecca F. Dallet, Brian Hagedorn, Jill J. Karofsky, Patience D. Roggensack, and Annette K. Ziegler Dissent: Justice Rebecca Grassl Bradley (41 pages, plus a 25-page appendix) The upshot The petitioner, Allen Gahl, who holds power of attorney for his uncle, John Zingsheim, seeks review of a published decision of the court of appeals reversing the circuit court's issuance of an injunction. That injunction compelled Aurora Health Care, Inc., to administer a certain medical treatment to Zingsheim. The court of appeals determined that Gahl's claim must fail because he did not identify a source of law that (1) would give a patient or a patient's agent the right to force a health care provider to administer a treatment the health care provider concludes is below the standard of care, or (2) could compel Aurora to put an outside provider that would provide such care through its credentialing process. *** We conclude that the circuit court erroneously exercised its discretion by issuing an injunction without referencing any basis demonstrating that Gahl had a reasonable probability of success on the merits of some type of legal claim. Accordingly, we affirm the decision of the court of appeals. Background WJI has covered this topic before. First, when the Court of Appeals decision came down, and again in advance of the SCOW arguments. Gahl holds health care power of attorney for his uncle, Zingsheim. At the time this case was filed, on October 7, 2021, Zingsheim was a patient in Aurora's care after testing positive for COVID-19. Zingsheim eventually recovered and was released. Through personal research, Gahl became aware of a drug called ivermectin, which had been used as a purported treatment for COVID-19. He received a prescription for ivermectin from Dr. Edward Hagen, a retired OB/GYN, who asserted that he "wrote the prescription based on a detailed discussion of Mr. Zingsheim's condition with Mr. Gahl," but never met with Zingsheim. Aurora declined to effectuate Dr. Hagen's prescription for several reasons. According to Aurora's Chief Medical Officer, ivermectin is "primarily used as an anti-parasitic in farm animals or administered to humans for treatment of certain parasites and scabies" and is not approved by the Food and Drug Administration as a treatment for COVID-19. The Chief Medical Officer further averred that a high dose of ivermectin, such as that prescribed by Dr. Hagen, "can be dangerous to humans and cause hypotension, ataxia, seizures, coma, and even death," and that accordingly "the use of ivermectin in the treatment of John Zingsheim's COVID-19 symptoms does not meet the standard of care for treatment." Gahl subsequently filed a complaint in the circuit court, seeking declaratory and injunctive relief. Specifically, he sought an order requiring Aurora to administer ivermectin to Zingsheim as prescribed by Dr. Hagen. Aurora opposed the requested relief. *** Based on the supplemental information submitted, the circuit court (Waukesha County Circuit Judge Lloyd Carter) acted quickly, and later in the day on October 12, signed an order to show cause Gahl had drafted and submitted. The order compelled Aurora to "immediately enforce Dr. Hagen's order and prescription to administer ivermectin to their mutual patient, Mr. Zingsheim, and thereafter as further ordered by Mr. Gahl." There was no statutory basis or other legal foundation for the order set forth in its text. Almost immediately after the order issued, Aurora objected. Aurora referred to the circuit court's order as "extremely problematic." Specifically, it observed the following alleged shortcomings: I am not aware of any orders written by Dr. Hagen, but am aware of a prescription written by Dr. Hagen for ivermectin 66mg to be taken once daily. The prescription does not indicate from where the ivermectin is to be obtained or how the tablets are to be administered to a patient who is intubated and sedated. Finally, the Order provides that Aurora is to administer ivermectin "as further ordered by Mr. Gahl." Mr. Gahl is not a healthcare provider. ... The next day, on October 13, 2021, Aurora filed a petition for leave to appeal a nonfinal order with the court of appeals. Additionally on that date, the circuit court held another hearing. At this hearing, the discussion revolved largely around Zingsheim's medical condition and the advantages and disadvantages of ivermectin. After hearing from both sides, the circuit court maintained, but modified its previous order of the day before such that rather than ordering Aurora to administer the treatment, Gahl could identify a physician who could then be credentialed by Aurora. ... Accordingly, the circuit court indicated its intent to clarify its previous order, agreeing that Gahl "is to supply or identify a physician that Aurora can then review and pass through its credentialing process. And once credentialed, that physician . . . will have permission to enter upon the premises and administer the ivermection as ordered by Dr. Hagen[.]" *** In a published opinion, the court of appeals reversed the circuit court's order. It determined that "[Gahl] has failed to identify any source of Wisconsin law that gives a patient or a patient's agent the right to force a private health care provider to administer a particular treatment that the health care provider concludes is below the standard of care." ... The court of appeals further concluded that the circuit court "had no legal authority to compel Aurora to credential an outside provider to provide care that is below the standard of care." Gahl petitioned for this court's review. The guts A circuit court may issue a temporary injunction if four criteria are fulfilled: (1) the movant is likely to suffer irreparable harm if an injunction is not issued, (2) the movant has no other adequate remedy at law, (3) an injunction is necessary to preserve the status quo, and (4) the movant has a reasonable probability of success on the merits. ... We begin by observing the limited nature of our review and emphasize that this case is not about the efficacy of ivermectin as a treatment for COVID-19. Rather, it is about whether the circuit court erroneously exercised its discretion by issuing the subject temporary injunction. Gahl raises three arguments in this court in an attempt to demonstrate that the court of appeals erred and that in fact the circuit court had the authority to issue a temporary injunction. First, he contends that the power of attorney statute, Wis. Stat. § 155.30(1), provides authority to issue the subject injunction. Second, Gahl asserts that the circuit court has inherent authority to issue such an injunction. Finally, he advances that the circuit court may issue the injunction in question under a theory of implied contract between Zingsheim and Aurora. Aurora disputes each of these bases. We need not address in depth any of Gahl's arguments because we do not know on what basis the circuit court issued the injunction. The circuit court cited no law in either its written order or its oral ruling, as Gahl conceded at oral argument before this court. This in itself constitutes an erroneous exercise of discretion. *** A circuit court erroneously exercises its discretion in the context of a temporary injunction when it "fails to consider and make a record of the factors relevant to its determination." Further, whether the party seeking an injunction has a reasonable probability of success on the merits in part turns on whether the moving party has stated a claim entitling it to relief. Although the circuit court acknowledged the four factors that must be fulfilled in order for a temporary injunction to be granted, it did not engage in any analysis of those factors. We base our determination here on its lack of analysis of Gahl's reasonable probability of success on the merits. Indeed, from a review of the circuit court's order, we do not know upon what legal basis it premised its authority to issue the injunction in the first instance. In other words, we do not know what viable legal claim the circuit court thought Gahl had presented. Without identifying the legal basis it accepted, the circuit court cannot support the conclusion that Gahl has demonstrated a reasonable probability of success on the merits. ... In exercising its discretion, there are no "magic words" the circuit court must utter or any precise level of specificity that is required. But the record must make clear that the circuit court examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. The circuit court heard legal argument and at one point stated that is (sic) "has a significant respect for an individual's right to choose their treatment." However, such a stray reference does not equate to a legal analysis of the probability of success on the merits of Gahl's legal claim. The circuit court did not tie such "respect" to any legal analysis or indicate how it could serve as a basis for the declaratory and injunctive relief Gahl sought. We therefore conclude that the circuit court erroneously exercised its discretion by issuing an injunction without referencing any basis demonstrating that Gahl had a reasonable probability of success on the merits of some type of legal claim. Dissent In this case, the circuit court used its equitable power to craft a narrow remedy, ensuring a non-state actor could not override the decision-making autonomy of a Wisconsin citizen to whom the non-state actor owed a duty of care. *** The circuit court properly exercised its discretion by considering the relevant facts and applying the correct legal standard, ultimately reaching a reasonable conclusion. ... Although the court's analysis could have been more meticulous, this court has never required the detailed explanation the majority now demands. *** If the majority applied the correct standard of review, it would be forced to uphold the circuit court's decision. As Judge Shelley A. Grogan, who was on the panel at the court of appeals, wrote in dissent, "it is clear the . . . decision was reasoned and based on the record and applicable law." *** In this case, the circuit court properly exercised its discretion. The majority seems to take issue with the circuit court's analysis regarding only one of the four prerequisites for injunctive relief: the reasonable probability of success. The majority, however, also states, "[the circuit court] did not engage in any analysis" of any requirement. Similarly, the court of appeals majority opinion, which the majority of this court affirms, seriously misunderstood the elements. A majority of this court leaves these errors uncorrected, and therefore they are likely to feature in future cases. Although the majority seems to affirm the decision on a narrow basis, it does not expressly – or even impliedly – signal the opinion below loses its precedential value. Consequently, the court of appeals will understand itself to be bound by that opinion. *** Contradicting its rejection of a magic words standard, the majority repeatedly faults the circuit court for not citing a specific source of law. ... Ironically, the majority does not cite any authority obligating the circuit court to provide a specific citation, wading into "the native land of the hypocrite." *** Although the circuit court did not recite case precedent or statutory law, it explicitly espoused a "significant respect for an individual's right to choose and choose their treatment" clearly grounded in both. In light of the petition for relief and the record as a whole, this statement should be sufficient. After all, magic words are not required. The majority nevertheless claims "such a stray reference" is insufficient. It cites nothing to support this conclusion. ... The majority errs in treating this politically controversial case differently than other cases involving similar decisions. ... Arguably, the majority must search the record for reasons to support the circuit court's decision. Altogether absent from the majority opinion is any attempt to read the record in a light favorable to the circuit court's discretionary decision. Alternatively, the majority could remand the case to the circuit court to better explain its decision. Outright reversal is a drastic remedy, not normally imposed unless the record is totally devoid of evidence supporting the circuit court's decision. On a final note, the majority fails to appreciate the circumstances the circuit court faced when it made its decision. Zingsheim had COVID-19, and Aurora placed Zingsheim on a ventilator. Death was a realistic possibility. Time was of the essence. As the circuit court recognized, the situation was "dire." The circuit court, which was not a medical professional, was presented with "polar opposite" information as to whether ivermectin was likely to improve Zingsheim's condition. Under such fast-paced, high-stakes circumstances, the majority commits an especially egregious error by demanding a "polished transcript" from the circuit court. The circuit court considered the relevant facts and applied the correct legal standard to reach a reasonable decision in light of the life-or-death circumstances presented. Like the majority of the court of appeals, a majority of this court fails to look for reasons to sustain the circuit court's discretionary decision as the law requires. Under our highly deferential standard of review, the circuit court properly exercised its discretion in entering an order granting temporary injunctive relief to a man near death. |
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