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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By Gretchen Schuldt
A bill adopted by the state Senate and pending in the Assembly contains some vague language about reporting election irregularities that some organizations are concerned about. Another bill would allow people in prison or jail to choose up to three people to be notified in case of lockdowns or other disciplinary measures that would affect a particular inmate's ability to visit or communicate. More information about each below. A chart showing the sponsors of each bill is at the bottom of this post. Senate Bill 291/Assembly Bill 300 – Increasing penalties for battery to an election worker; whistleblower protections Concerns about the vagueness of whistleblower protection language in this bill, which also would increase penalties for battery to election officials, have prompted some organizations to express concerns about the measure and call for clearer language. Other organizations, however, backed the measure, which was adopted by the Senate without a roll call. It is pending in the Assembly. That battery section of the legislation would increase the penalty for simple battery to an election worker from a misdemeanor to a felony and would increase the maximum penalty from nine months behind bars and a $10,000 fine to 3½ years of incarceration and a $10,000 fine. “Since 2020, we have witnessed shocking instances of violent behaviors and intimidation directed towards election officials in Milwaukee County, in Wisconsin, and throughout the nation,” Milwaukee County Clerk George Christenson said in testimony submitted to the Assembly Campaigns and Elections Committee. “These threats show up by way of emails, voicemails, and personal verbal and physical threats against the dedicated public servants who stand at the front door of our democracy.” The bill, he said, “demonstrates the serious nature of these unacceptable behaviors and makes it clear that such attacks on election officials in Wisconsin will not be tolerated.” Brown County Clerk Patrick Moynihan Jr. also wrote in support of the bill, including the whistleblower language. “The recognition and importance of protecting and strengthening our election official’s person and self-confidence is paramount,” he said. “So too, the Whistleblower provisions as detailed within the bill provide reasonable assurances against any potential unlawful retribution.” That language says that no election worker may be disciplined or retaliated against because the worker “lawfully reported, or is believed to have reported, witnessing what the clerk or election official reasonably believed to be election fraud or irregularities.” Rock County Clerk Lisa Tollefson was generally supportive of the bill, but added in written testimony, “The only piece of the bill that concerns me is in the Whistleblower section. Each time I read the bill I have a different take on it. Some clarification in this section of the bill may be needed." She asked, "Can the reporting of an election irregularity act as a shield to protect an election official from something else that would cause them to be disciplined or release(d)…from employment?" and "What is lawfully reported?" The ACLU of Wisconsin, in registering against the bill, said the organization has concerns with the bill, “as the process for ‘lawfully reporting’ is not outlined, and the terms ‘reasonable belief’ and ‘irregularities’ are not defined.” All Voting is Local Action, also registered against the bill, said “Spoke with Governor's Office, RE: Concerns with the Whistle Blower section, no structure for reporting.” And Edgar Lin, Protect Democracy’s Wisconsin policy advocate and counsel (and also a WJI Board member), identified three specific areas that need strengthening. First, he said in testimony, there should be a process for “lawfully reporting.” To whom does a bad act get reported and who reviews the allegation? What happens if a false “bad act” is reported? When must these acts be reported? “Without a clear process, a whistleblower event – regardless of merit – could descend into chaotic litigation, which could further undermine the confidence in our election system,” he said. Second, he said, “an election worker’s 'reasonable belief' about fraud or irregularities should be defined. Is it a reasonable election worker standard? A reasonable person standard? Or simply that election worker’s own subjective belief?” Finally, he said, “ ‘irregularities’ should be defined. The current language states that a person could lawfully report “election fraud” or “irregularities.’ ” While election fraud is defined in state law, “ ‘Irregularities’ is not defined,” he said. “Instead of ‘irregularities’ – a vague and broad term that could be widely interpreted depending on perspective – the bad act should be grounded by existing laws, rules, regulation, and/or guidance,” he wrote. The Wisconsin Counties Association, the League of Wisconsin Municipalities, and the League of Women Voters of Wisconsin, Inc. registered in support of the bill. Those organizations did not indicate why they supported the bill. Senate Bill 904 – Public information on lockdowns The public would have access to information about prison and jail lockdowns in facilities around the state, under a Democratic bill introduced in the state Legislature this week. The bill would require the Department of Corrections (DOC) to publish on its website certain information about each prison and county jail in the state. That information would include whether there is any restriction in place impacting the ability of an inmate or a group of inmates to participate in visitation or communication and, if there is such a restriction, a statement giving the reason for it, how long the restriction has been in place, the number of inmates in solitary confinement, and the total number of inmates held in the facility. The bill also would require DOC and sheriffs to establish a notification system to inform certain individuals within 24 hours of an inmate's being put under any type of restriction limiting availability for visitation periods or other communication. Each inmate would be allowed to select up to three people to receive the information. By Alexandria Staubach
Medical marijuana Assembly Republicans have announced long-awaited medical marijuana legislation. The plan calls for the state to run five dispensaries supplied by private growers and processors. According to Rep. Jon Plumer, (R–Lodi), the plan is for a “break even program,” meaning the state will see no tax revenue. Wisconsin would become the only state with legalized marijuana program to run its own dispensaries. Only smokeless products would be available. Doctors would not prescribe medical marijuana. Instead, they would sign off that a patient has one or more qualifying conditions, which include HIV/AIDS, severe chronic pain, severe chronic nausea, cancer, and terminal illness with life expectancy of less than one year. The state would then provide medical marijuana products to patients with qualifying conditions. An infirm patient could identify up to three caregivers eligible to pick up the marijuana products. At a press conference to introduce the legislation, Plumer said Republicans want to “make this available to people but we want to have tight controls as well.” He said he anticipates support in the Assembly and Senate and that lawmakers will be able to pass the plan this spring. Wisconsin is one of only 12 states maintaining a total ban on marijuana products. Wisconsin is bordered by three states with legalized recreational marijuana: Minnesota, Michigan, and Illinois. Meanwhile, the federal 2018 Farm Bill legalized hemp and made some intoxicating forms of THC derived from legal hemp widely available in Wisconsin. Marijuana decriminalization A bipartisan group of Assembly lawmakers in December 2023 introduced AB 861 to decriminalize small amounts of marijuana. The bill would reduce possession of less than 14 grams, or up to a half-ounce, to a civil forfeiture offense. Such possession currently is a misdemeanor punishable with a $1,000 fine and up to six months in jail for a first offense. A second offense is a felony. Reps. Shae Sortwell (R–Two Rivers), Sylvia Ortiz-Velez (D–Milwaukee), and Dave Considine (D–Baraboo), and Sen. Lena Taylor (D–Milwaukee) sponsor the bill. While municipalities would have some flexibility, the bill ensures forfeitures amounts from $100 to $250. A court could alternatively impose from 16 to 40 hours of community service. Under current law Milwaukee imposes a $1 fine for small amounts of marijuana and Madison imposes no fine. The bill would reduce the penalty of possession or use of marijuana drug paraphernalia to a $10 civil forfeiture. Under AB 861, previous marijuana possession convictions involving less than 28 grams would not be counted for purposes of repeat-offender laws. The bill also would eliminate employer liability for electing not to drug test employees and prospective employees, unless otherwise required by statute. Because current law does not use 14 or 28 grams as metrics for possession, it is unknown how many individuals would be spared incarceration or community supervision under the new law. However, in 2022, 2,289 individuals were charged with a cannabis offense in the absence of some additional, greater offense, per a Badger Institute report. 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. "Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications. Italics indicate direct quotes from the application. Typos, including punctuation errors, come from the original application even though we have not inserted “(sic)” after each one. WJI has left them as is. Name: Mark G. Schroeder Appointed to: Outagamie Country Circuit Court Appointment date: March 19, 2021 (elected to a six-year term on April 5, 2022) Education: Law School – University of Wisconsin, Madison, Wisconsin Undergraduate – University of Wisconsin, Madison, Wisconsin Associate – Mid-State Technical College, Wisconsin Rapids, Wisconsin High School – Lincoln High, Wisconsin Rapids, Wisconsin Recent legal employment: May 2014-present – Family Court commissioner, Outagamie County, Appleton, Wisconsin March 2011-May 2014 – Assistant corporation counsel, Outagamie County March 2003-May 2011 – Assistant district attorney, Outagamie County Bar and Administrative Memberships: State Bar of Wisconsin U.S. District Court for the Western District of Wisconsin U.S. District Court for the Eastern District of Wisconsin General character of practice: Immediately after law school my practice was primarily civil litigation in nature while I worked with a firm then called Coyn Niess Schultz Becker & Bauer in Madison. That firm specialized in insurance defense in personal injury, medical malpractice, and worker's compensation cases. While there I also represented a few clients who were plaintiffs in personal injury cases and contractual disputes on an occasional basis as those cases came into the firm. I left that practice in part due to a desire to move into a criminal legal practice and in part due to my own experiences working in an industrial setting where coworkers were injured and on one occasion killed and my resulting personal discomfort with defending woker compensation cases. I spent a little less than nine years in criminal practice as a trial prosecutor, maintaining a primarily felony caseload for all but the first few months of that period. I spent two of those years as a sensitive crimes prosecutor working on sexual assault and child abuse trials and the balance prosecuting violent or weapons related offenses. During that time frame I participated in somewhere between 40 and 50 jury trials and was in court nearly every day. In 2011, I took a position in the Outgamie County Corporation Counsel's office, where my practice consisted of representing the County in civil litigation, mental health commitments, guardianships, child support enforcement, collections, while providing legal advice to the County Executive, the Sheriff and various county officials. During that time I was in court nearly every day. I also appeared on behalf of the County in both the Court of Appeals and on one occasion before the Wisconsin Supreme Court. Since 2014, I have served as Family Court Commissioner. I preside over family law cases, civil injunctions, small claims actions, guardianships and mental health commitments. In the past seven years I have presided over thousands of contested post judgment family law hearings and evidentiary hearings in civil injunction cases. Describe typical clients: My typical clients have ranged from insurance companies and their insured parties during my civil practice early in my career to the State of Wisconsin and Outagamie County during my years in the public sector. As a prosecutor I had frequent contact with victims of crimes, and while they were not my clients, I did often represent interests that mirrored theirs as I represented the interests of the State of Wisconsin. My areas of specialization have changed over the years as I moved into different practice areas. As a prosecutor I initially specialized in sensitive crimes prosecution and then violent and weapons related offenses, as well as conspiracy cases related to violent or weapons related offenses. While I was in the Corporations Counsel's office with Outagamie County, I specialized in mental health committment cases both at the trial level and on appeal before the Court of Appeals and the Wisconsin Supreme Court. I also advised county officials in municipal law issues. Number of cases tried to verdict: Approximately 45 List up to three significant trials, appeals, or other legal matters in which you participated as a judge or lawyer in the past seven years: Mental commitment of Melanie L. – 12AP99, 2013 WI 67 - Court of Appeals Dist. III, Wisconsin Supreme Court …. While I was not involved at the Circuit Court hearing, I handled the case befor the Court of Appeals and the Wisconsin Supreme Court. The issue on appeal was whether the County had met its burden of proof regarding the involuntary medication order at a hearing to extend an existing commitment. I drafted appellate briefs before the Court of Appeals without upheld the involuntary medication order. I also drafted briefs before the Wisconsin Supreme Court and appeared for oral argument on February 26th, 2013. The Court reversed the Court of Appeals on a 4-3 vote and attempted to clarify the evidence necessary and the evidentiary standard trial courts should apply in determining whether to issue an involuntary medication order. The Supreme Court ruled that the trial court applied an incorrect legal standard and that the evidence introduced at trial was insufficient to sustain the involuntary medication order. That case, and its progeny, have helped clarify for counties and committed persons the circumstances in which medication may be involuntarily administered. This cases is routinely cited by counsel and courts since it was issued and was relied upon by the Wisconsin Supreme Court as recently as October 2020. Diane M. Stumph vs. Oneida Tribe – Outagamie Case No.: 15CV1036…. This case was a harassment injunction petition brought by Ms. Stumph against the Oneida Tribe as a corporate entity, specific agencies for the Tribe including its Police Department, its Zoning Department, as well as individual officials with the Tribe including zoning officers and police officers. While harassment injunction cases are extremely significant to the litigants themselves they are rarely complex or significant from a legal perspective. In this instance, however, the Petitioner sought to enjoing the Tribe and officials of the Tribe from engaging in activities they were otherwise authorized to engage in on the allegation that the Petitioner, while she owned property within the bounds of the Oneida Reservation, was not a tribal member and was therefore not subject to tribal regulations. The case continued over multiple hearings and required repeated rulings on summary judgment motions brought on grounds ranging from procedural jurisdictional defects to sovereign immunity. It also ultimately involved analyses of whether the Tribe had unintentionally waived its sovereign immunity defense, whether Petitioner had modified the ownership structure of her business specifically to avoid regulation by the Tribe, and if so, whether that action was timely and effective for that purpose, and whether the specific officials named individually were acting in a personal or official capacity during their interactions with the Petitioner. Over the course of multiple hearings the cases against individual Respondents were dismissed on varied grounds on jurisdictional defects, summary judgment at the close of Petitioner's case, and then ultimately on my conclusion that the Tribe had not waived its sovereign immunity, that it had the authority to issue zoning orders against the Petitioner's business property, and that the individuals named were acting in their official capacities rather than as individuals. My decisions were upheld on appeal. Mental commitment of Michael H. – 2013AP1638, 2014 WI 127.… I represented Outagamie County before the trial court and the Court of Appeals in this matter which again went on for review before the Wisconsin Supreme Court. The Court in this matter attempted to clarify the evidence required for a person to be found "dangerous" pursuant to Wis. Stat. s. 51.20, and area of law it continues to attempt to develop and clarify as recently as this year. I prepared and submitted briefs for the Wisconsin Court of Appeals which then upheld the decision of the trial court. While the case was pending before the Wisconsin Supreme Court I began preparing briefs for that Court. I was appointed Family Court Commissioner before the briefs were finalized and filed and the case was taken over by a colleague in the Corporation Counsel's office. Over the course of the next few months I consulted with co-counsel on a repeated basis as he revised the briefs I had begun preparing and in anticipation of oral argument before the Wisconsin Supreme Court. The Court ultimately upheld the trial court and Court of Appeals. This case continues to be cited by courts and counsel on issues of dangerousness in mental commitment cases. Experience in adversary proceedings before administrative bodies: While in civil practice early in my career I appeared before Administrative Law Judges in worker's compensation cases on several occasions from 2002 - 2003. Describe your non-litigation experience (e.g., arbitration, mediation). I participated in court ordered mediation sessions related to ongoing civil litigation involving Brown County during a period where I was employed by their Corporation Counsel's office in 2008 before returning to criminal practice in Outagamie County. As Family Court Commissioner in Outagamie County, I serve as the department head and supervisor of the Family Court Services office with the county, which administers and conduct mediation processes in family law actions. During my time in the Outagamie County Corporation Counsels office I participated in various non-litigation legal activities including advising county officials, employees and in the negotiation and administration of Intergovernmental Agreements, parliamentarian work for the County Board, and appearing before administrative boards and agencies related to the County's involvement in Intergovernmental Agreements. Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: None Previous runs for public office: None All judicial or non-partisan candidates endorsed in the last ten years: Jeff Froehlich, Calumet County judge, 2012 Edmund Jelinski, Winnebago County judge, 2011 Edmund Jelinski, Waupaca County judge, 2014 Carey Reed, Calumet County judge, 2021 Greg Gill Jr., Court of Appeals, 2021 Christian Gossett, Winnebago County district attorney, 2006 Professional or civic and charitable organizations: Family Court Commissioner’s Association, 2014-present, including as president Family Law Section Board-State Bar of Wisconsin, 2016-present, board member and Legislative Committee member Significant pro bono legal work or volunteer service: I manage a free legal clinic for unrepresented family law litigants in Outagamie County. As part of that work recruit and attempt to retain attorneys and paralegals for the clinic, schedule clinic sessions, reserve meeting space and perform other administrative duties for the clinic. In addition, my service on the Family Law Section Board includes meetings and work on weekends and off hours, including written and occasionally in person testimony before the legislature since 2016. Why I want to be a judge: I went to law school with the intent to work as a public servant. At one point I intended to work as a prosecutor for my entire career but when life intervened, I looked for other ways to help and serve the people in my community with the skills I’ve been given. While I am not an Outagamie County native, I have resided there for a period of 18 years and come to see it as my home, and I believe my life experiences provide commonalities with the people of various parts of my adopted home county. Like the residents of the various Outagamie County townships, I grew up in the country and lived in farm country as a child, bailing hay and picking apples for spending money as a teenager. Since 2003 I’ve lived in Appleton, the County’s largest city, near the same city park where residents come to use the public pool in Summer and sled down hills in Winter. After high school I attended a tech school not unlike Fox Valley Technical College in Appleton, and I worked swing shift in a plant for a few years afterwards to support my family, not unlike what many Outagamie County residents have done for generations in places like Kimberly and Kaukana. While I am now an attorney and a Family Court Commissioner, I believe those life experiences, provide me with experiential insights into the lives of those that come into my courtroom every day, and that insight would serve me well as a judge. It has been my great honor to serve the people of Outagamie County for the past 18 years in various ways, and it would be a culmination of decisions I made all those years ago to continue that service on the Circuit Court bench. I believe my legal experience in various areas of the law leaves me well qualified to serve the county well as a judge in ensuring access to the court system and a fair and impartial application of the law to those cases that come before me, consistent with the manner in which I preside over hearings as Family Court Commissioner. Describe which case in the past 25 years by the Wisconsin Supreme Court or U.S. Supreme Court you believe had a significant positive or negative impact on the people of Wisconsin. While there are many cases that come to mind that I’ve relied upon and come to value as I studied and practiced law since 2002, the case I’ve chosen was a source of joy for many in Wisconsin when it was decided, including for close friends of mine whose commitment to each other was affirmed as a function of their constitutional rights in April 2015. Obergefell v. Hodges 135 S. Ct. 2584 (2015), relying and expanding on the legal principles underpinning the decision in United States v. Windsor 133 S. Ct. 2675 (2013), ruled unconstitutional any ban on same sex marriage that remained in the United States. My observation of the impacts of that decision come second hand, but it deeply affected people that I care about and others all across the State of Wisconsin. In 2010 my wife and I attended the wedding of one of our dearest friends whom we have known since our days in High School in central Wisconsin. There was a ceremony at a place of worship, a dinner and a reception, similar to the dozens of weddings I’d attended before. Unlike those weddings, this ceremony, while incredibly significant to our friend and his new husband, was legally meaningless. In the wake of the ceremony, I gave advice to my friend and his husband about legal documents they could execute to try to capture some of the same benefits that legally married couples enjoyed by the mere existence of their marriage. They took some of that advice, but ignored some as well, deeming it too troublesome or expensive to pursue further. Within a few years the issue of same sex marriage and the constitutionality of its prohibition were percolating before the United States Supreme Court first in Windsor and later in Obergefell. There were conversations between my friends and I about which way the Obergefell decision would fall in 2015, and it became obvious to me that while this committed couple did not need the affirmation of others to give their marriage meaning to themselves, there was a fear that came with knowing that the legal validity and recognition of that commitment could be reversed by political forces outside their control. Obergefell ended all of that, and the day it was released became a day of celebration for our friends. As Family Court Commissioner I have had the opportunity to preside over many marriages in my courtroom since same sex marriage became legal in Wisconsin on October 6th, 2014. By sheer numbers, most of the couples who marry in my courtroom could have married long before that date, and for them Obergefell might have little meaning, but for those who could not Obergefell meant they never had to worry whether a move to another state or the next election cycle would render their marriage a legal nullity again. It’s for that reason that I’ve chosen to Obergefell v. Hodges as a case that brought significant positive impact for many in the State of Wisconsin. Two or three judges whom I admire and why: I’ll start with Judge Richard Niess, who recently retired from the bench in Dane County after 16 years. I worked for Judge Niess when I first graduated from law school and learned quite a bit from him in that time. When he was appointed to the bench by then Governor Doyle in 2004 I was already living and working in Outagamie County and didn’t practice in front of him. As luck would have it, Judge Niess seemed to repeatedly end up on cases that gained statewide attention and over the years made rulings on topics such as voter ID laws, the need for special elections, the constitutionality of laws passed in a lame duck session in 2018, and massive open records requests brought against state agencies, sometimes by state legislators. Judge Niess handled these cases efficiently and, even knowing appeal was inevitable, issued decisions that were both prompt and well developed. I followed his career from afar based on my experience working in the firm he led after graduation and recognized his voice in his writing. His thinking was incisive and his good humor was evident both in and out of court. Over the years he spoke about how he saw the work of the judiciary that have helped me think more clearly about the manner in which I do my work as a Commissioner: “Just because you believe a lawyer is being unreasonable doesn’t mean that they don’t have a viewpoint that you should consider.” In Family Court the emotional nature of the topics involved are such that it’s not unusual for parties or their attorneys to become heated during the course of their arguments in hearings, and once that occurs it would be easy discount the possibility that aspects of their arguments could be soundly based in fact or law. Reflecting on what he’d say to new judges as he neared retirement, Judge Niess said “the most important thing for these judges to keep in mind is that they are trustees of rule of law,” Niess said. “They are fiduciaries to the public for whom they serve.” This is what I try to make the focus of my work as a Commissioner and what I try to remind myself of when the conduct I see in my courtroom starts to try my patience. When I was a new Associate Attorney in his firm long ago there were a lot of things I tried to emulate in the way Judge Niess practiced law, and, though he was somewhat surprised to hear it when we spoke before his retirement, I found myself doing the same when I became a Commissioner in 2014 and in the years since. The second person I’ll speak about is Justice Thurgood Marshall. As a history major with an interest in law, I spent a good portion of my undergraduate years studying legal history in the context of broader cultural and political history. During those years I, like many, came to admire and be continually amazed by the life and work of Justice Marshall. The impact of his work as an attorney fighting against segregation in schools and elsewhere are both obvious and profound, but his work as a Justice of the United States Supreme Court continued his work as an attorney in recognition of the equal protection clause as more than mere words, but as a fundamental mechanism for limiting attempts by governmental entities to restrict the individual liberties of the people they were intended to serve. I do not agree with all of the legal arguments and analysis that Justice Marshal in his opinions for the court or his masterfully written dissents, but I admire his reason, his legal acumen, his dedication and passion for his point of view and the power of the law to serve as a check on governmental infringement on life and liberty and a guarantor of the rights of the people. The proper role of a judge: It’s a judge’s duty to ensure access to the legal system, to provide litigants with the opportunity to be heard, and to apply the law while maintaining an impartial demeanor at all times. In preparing for this process I consulted with a number of attorneys and others whom I have met in my professional capacity and take great pride in the number of times I’ve been told over the last few weeks that they are unaware what political party, by way of example, I might tend to support with my votes. This demonstrates, I hope, the pains I have taken to maintain that impartial demeanor and exercise restraint in my comments from the bench and in my life since I was appointed Family Court Commissioner in 2014. Additionally, through my supervision of a volunteer legal clinic in Outagamie County and the Self Help Center to assist unrepresented litigants I have tried to fulfill a jurist’s duty to ensure access to the legal system during my time as a Family Court Commissioner. I believe that it is the duty of a judge to exercise restraint in the application of the law and precedent to the cases that come before them instead of taking those cases as an opportunity to try to upend existing law merely because it conflicts with my personal opinion or beliefs. These principles should be and will be the primary directives of my work as a judge should I have the privilege of serving the people of Outagamie County in that capacity. Those directives, however, only go so far, which is something I’ve come to realize over the course of my legal career. In many areas of the law statutory authority and precedent provides factors for judicial officers to weigh, but little or no instruction as to how they should be weighed against each other. An example of that is Wisconsin Statute Ch. 767.41, which lists the factors a court should consider in resolving disputes over custody and placement of a minor child and directs judicial officers to resolve them in the child’s best interests. In doing so, the law provides the judicial officer with a destination, the “best interests” of the child and tells it what categories of facts to consider, but the map on how to get to that destination remains blank. Inevitably, a judge must in those moments utilize their judgment to traverse the space between the legal factors the court must consider to the legal “destination” the law provides. A judge cannot hope for universal approval, but they can and must demonstrate clearly how the law is being applied to limit the chances that the litigants, or the general public, will view the legal process as arbitrary exercises based on the personal beliefs of a randomly selected jurist. The Wisconsin Supreme Court just issued a decision in Clarke v. Wisconsin Elections Commission invalidating the current Assembly and Senate maps based on the petitioners' contiguity argument. The court ruled 4 to 3, with Justice Jill Karofsky writing the majority opinion. The court stated in pertinent part as follows:
¶3 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.8 We also reject each of Respondents' defenses. We decline, however, to issue a writ quo warranto invalidating the results of the 2022 state senate elections. ¶4 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. See Wis. Const. art. IV, § 3. 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. WJI will report more on this decision but wanted to get this news out to you. Here's the full opinion, including the dissents (all 225 pages). By Alexandria Staubach
Last week a bipartisan group of more than 30 lawmakers introduced a bill to end sentences of life without the possibility of parole for juveniles. The bill, Senate Bill 801, also creates new mitigating factors for a sentencing court to consider, recognizing that juveniles change and mature mentally and emotionally over time. The bill would apply retroactively to anyone currently serving a juvenile life-without-parole (JLWOP) sentence. If enacted, SB 801 would bring Wisconsin in line with 28 states already banning JLWOP sentences, including three of Wisconsin’s closest neighbors: Minnesota, Iowa, and Illinois. The bill has been referred to the Senate Committee on Judiciary and Public Safety. Ruling in Graham v. Florida, the U.S. Supreme Court held it unconstitutional for a court to impose JLWOP on non-homicide juvenile offenders; the court found that such a sentence violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In Miller v. Alabama, the U.S. Supreme Court banned mandatory life sentences for juveniles no matter the severity of the crime. SB 801 states that its purpose is to clarify that “the statutory mandatory sentence of life imprisonment without the possibility of parole or extended supervision for repeat offenders does not apply to youthful offenders,” consistent with Miller. JLWOP sentences are unique to the United States; we are the only country in the world with such a practice. According to the Campaign for the Fair Sentencing of Youth, the practice is permitted in 22 states, including Wisconsin and Michigan. In five states the practice remains on the books without active sentences. Michigan has the highest JLWOP population in the nation and recently made national headlines for sentencing 17-year-old Ethan Crumbly, who committed Michigan’s deadliest school shooting at age 15, to life without the possibility of parole. However, Wisconsin outpaces Michigan regarding overall number of youth incarcerated on life sentences with or without parole (141 compared to 65) and sentences over 40 years (73 compared to 15) as well as the total number of children in adult prisons (1,709 compared to 554), according to a 2021 report produced by the nonprofit Human Rights for Kids. The following table shows the bill's sponsors. By Alexandria Staubach
Gov. Tony Evers has been busy considering bills from the Legislature, tackling 51 bills on Dec. 6 alone. In what WJI sees as a win for the criminal justice system, Evers vetoed Senate Bill 86/Assembly Bill 57, which would have erased prosecutorial discretion to dismiss or amend certain charges without prior authorization from the court and prohibited deferred-prosecution sentences for crimes. WJI opposed the bill’s lack of clear procedure for dismissal authorization and its prohibition of deferred prosecutions in appropriate cases. Those outcomes would have increased burdens on the criminal justice system without providing appropriate resources to deal with the fallout. Voting and criminal justice legislation signed into law by Evers included the following: Assembly Bill 335 (Wisconsin Act 52) Specifies that if a candidate is convicted of certain election crimes, a court must order dissolution of the candidate’s committee and return of unencumbered campaign funds; also requires the court to appoint a new treasurer for the committee to carry this out. Senate Bill 283 (Wisconsin Act 53) Provides that if a municipality, county, or commission chooses to broadcast canvassing proceedings live in any election, including live stream or on the internet, the same entity must record the broadcast; the recording must be retained for 22 months. Senate Bill 433 (Wisconsin Act 54) Modifies current law so the requirement that presidential primary absentee ballots be sent at least 47 days in advance of the election applies only to military and overseas voters; all other voters will be sent the presidential primary absentee ballot at least 21 days in advance. Assembly Bill 36 (Wisconsin Act 58) Creates a six-month time limit for the state crime laboratories to process sexual assault kits and an expedited 60-day timeline under certain circumstances. Assembly Bill 166 (Wisconsin Act 61) Expands the definition of “sexual contact” to include instruction by a victim to touch bodily fluids with the purpose to degrade or humiliate the victim sexually or arouse or gratify the perpetrator for purposes of crimes against children and sexual assault. In a letter dated Friday, Dec. 15, Wisconsin Justice Initiative asked Department of Corrections Secretary Kevin A. Carr to revise prison policy to allow peer video visitation for persons in DOC care who have terminal illness or are near death.
A terminal-illness diagnosis often results in an imprisoned individual’s transfer to Dodge Correctional Institution (DCI). While DCI principally serves as the reception center for men entering the Wisconsin Department of Corrections (DOC) system, it also serves as the central medical unit for the male DOC population. But an incarcerated person’s removal to DCI for end-of-life care breaks bonds of friendship between incarcerated individuals that formed over years or even decades. And as WJI previously reported, DOC policy does not permit visitation, even by video conference, between two persons in DOC custody. WJI wrote to Carr as follows: Many individuals who die incarcerated have spent years if not decades of their life at another correctional facility. The friendship bonds developed in those institutions may be the most meaningful in their lives. It is inhumane to deprive people of these relationships at the end of life. While in-person visitation may be impractical and costly, video visitation is a satisfactory option available to DOC at little or no cost. Of the 21,974 persons incarcerated in the DOC as of October 31, 2023, nearly 24% were older than 50, including 44 individuals age 80 or older. As of June 30, 2023, the oldest person incarcerated at DCI was 92 years old. The incarcerated people in your care deserve dignity in death. A dignified death should include communication with one’s incarcerated peers—one’s lifelong friends. Please consider modifying DAI Policy # 309.06.01 to permit incarcerated persons with terminal illness to include their incarcerated peers on their video visitation lists or to otherwise have occasional video visits with their incarcerated peers. Copies of the letter were sent to the governor, the DCI warden, several DOC officials, and heads of pertinent legislative committees. WJI is committed to advocating for more humane conditions for those incarcerated in Wisconsin’s prisons and jails. Reducing the prevalence of lonely deaths is a low-cost way to achieve more humane outcomes for those who remain incarcerated at the end of their lives. DO YOU AGREE THAT THE POLICY SHOULD BE CHANGED? IF SO, PLEASE SIGN THIS PETITION TO SECRETARY CARR: |
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