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Deteriorated living conditions in two of Wisconsin’s prisons have been in the news lately, with public protests outside of Waupun Correctional Institution (WCI), a rodent infestation at Green Bay Correctional Institution (GBCI), and reports on “modified movement” conditions (a sanitized way of saying "lockdown") at those facilities. Gov. Tony Evers recently visited WCI and on Nov. 14 said that the restrictive conditions there and at GBCI will be eased.
This fall, Wisconsin Justice Initiative launched a newsletter for men and women inside Wisconsin’s prisons. In response to WJI’s educational outreach, several individuals sent reports on the difficult conditions inside WCI, GBCI, and other facilities that have not garnered as much media attention. Below are some of these reports, from both before and after Evers' announcement, in the individuals’ own words. Wisconsin Secure Program Facility (a/k/a Boscobel or Supermax) Late November 2023 I want everybody to understand that some prisons around the State has been on modified movement since around 2020 when the pandemic took over the world. I was at Stanley at the time and saw what took place first hand. Governor Tony Evers has set a plan in motion to allow Green Bay and Waupun to come off modified lock down. THAT IS A LIE. If you not allowed programs, school, visits, and recreation you are still lock down. Please understand that the prisons are not just short staff but they are overcrowded. The Governor want to send hundreds of prisoners to other prisons around the State to make the situation there much worst. That is what you call kicking the can down the road. Wisconsin prisons are for profit. Its big business. We have guards that is making $36 dollars a hour to work at max plus time & half which is another $18 that add up to $54 dollars a hour. Guess what they do? They pass food 3 times a day through a slot and sit around because we all are lock in 24 hour a day here at Boscobel. Now who is the crooks. Wisconsin need real prison reform. We need something in place to make people want to do better because right now as it is people going to do what they want because they feel like they going to have to do 100% of their time anyways. Mean while a person that has done everything to stay out of trouble will go home behind the person who has done nothing but cause trouble while he or she been in prison. Its time to get real about what is going on. Late November 2023 I would like to let everybody know that DOC was not just short staff. They short doctors, nurses, mental health staff, Teachers, and many other people that work around the prisons. So when DOC gave correctional officers that huge pay raise these other places that was short staff got even shorter because now the lady that was processing complaints or working in the business office are now correctional officers. . . . One last thing. I been at Boscobel 7 months. I have been feed peanut butter and jelly sandwiches everyday for breakfast and one dinner on the weekend. Where is the money? Waupun Correctional Institution Late November 2023 After discussing how seeing his family is his “go to” way to cope with incarceration, one man wrote: For the past 8 months I have not been able to see my mother in any form whatsoever. The thing that means the most to me, the thing that has the most effect on me as a human being has been kept away from me these past 8 while this institution figures out its' "staffing shortages." They have enough staff where they can make license plates 5 days a week, but I can't see my family once in 8 months! Someone tell me how that makes an iota of sense? . . . The second way in which I would normally cope with such extreme and traumatic stress is a bit more obtuse so again I ask that you bear with me on the explanation. That coping method would simply be to go get a haircut! Now I know that for some people the notion of going to get a haircut ranks as a minute and mundane practice. But for many men like me it is so much more. I am a black man whom was born and raised in the inner city and like so many minorities across the nation going to the barbershop and getting a haircut is so much more than the particular act. The barbershop for most of us is a safe place. It is a place for fellowship and community. Hell going to the barbershop is the closest that a lot of minorities will ever get to going to group therapy! And I say that in all seriousness. I learned this as a very young child, just how much the barbershop meant in my community. It was a place where men would come and literally as well as figuratively shed the parts of themselves that were dead and/or dying. Going to the barbershop and getting a haircut was more then getting a fresh cut. Each and every time a men, especially a black man emerges from that chair after a haircut it is akin to a rebirth. And after all that black men have to go through and are put through in this country we need to have this symbolic rebirth as much as possible. This is probably the reason why black men spend so much time in the barbershop. It is our safe place to just be. But because of this lockdown I have not known this feeling for 8 months. I have not gotten a haircut for 8 months! And couple to this the fact that for this same 8 month period I have been allowed one shower maximum per week! I have had my hair fall out on two separate occasions. I have had to completely shave my head bald because the stress of this continued lockdown and the lack of offered hygienic avenues by way of showers and haircare/haircut caused my hair to just fall out all of a sudden in huge clumps! I am unable to articulate how unnerving it is to wake up one day and your hair just starts to fall out! And when I attempted to tell medical staff as well as security staff about this they treated it like it was nothing, like I was nothing. And this has been this way for 8 straight months, being treated like I am nothing... Just to catch you up on some of the other line items in regards to institutional happenings as of late.
Late October 2023 The lockdown remains strong, with small, pathetic attempts by wci to pacify us sprinkled in every now and then. The news had stated that we are locked in 23 hrs a day. No. Not true. We are locked in 24/7. I get out of my cell once a week for 15 min to take a shower. That's it. Rec is offered almost every week for 45-60 min a week for those who stand for count and don't have nothing hanging from their bars. 1 hour a week for rec-if they have the staff. No school. No barber shop. No religious services since Mar, although they just sent a memo saying they're trying to start services for 20 ppl at a time in Nov. One warm tray a day, n that's only mon-fri. Bag lunches for breakfast n dinner 7 days a week for 7 months now. All meals in cells since I've been here-no chow hall. No visits. Zoom or in person since Mar 28th either. There r other issues, but these r directly related to lockdown. Late October 2023 We have been on a seven going on eight month lockdown. We get NO rec, one shower a week, one change a clothes a week, no library, no visits either contact or video, no church services and peanut butter sandwiches ten times a week or more for just as long! The conditions are so bad here people are killing there self with many more attempts everyday! . . . I was first incarcerated at the age of 15 in adult institution. I've never been to juvenile corrections. I've always been a non violent criminal. . . . The justice system here in Wisconsin is so broken. Stanley Correctional Institution Late November 2023 Per multiple blue shirt correctional officers, they are being directed to start a program of harassment based on enforcing the rules that have been relaxed due to staff shortages. As stated they are to start writing tickets all minor issues as minor tickets are not able to be challenged like a major ticket is. This way many will be on cell confinement. New staff have not worked at anytime when the institution has run under regular movement. If anyone has people that can place complaints in the community about this place and the issues here it would be helpful. Upper staff, white shirts, via the warden are instituting an environment that will become more and more hostile by the day after the 27th. Officers have opined that the warden is pushing this agenda so he can yet again lock down the institution and have limited movement as soon as possible. . . . . . . . The warden has even removed the hard copies of the current DAI/DOC policies so as to hinder our capability to formulate proper complaints and or make due process claims. When asked about policy's we are told to go look it up, hard to do when no hard copies are available to look at. There is so much wrong with this place, staff are even allowed to keep their badges hidden from sight. The mantra heard regularly from staff is “This is Stanley, we do things different”! Green Bay Correctional Institution Early November 2023 I am writing to report on a number of conditions of confinement issues inside the prison. They include, but are not limited to, the following:
Jackson Correctional Institution Early November 2023 Jackson Correctional Institution has an inmate population that exceeds its general population capacity. The only way JCI can house its current population is by utilizing the segregation housing at near max capacity ALL THE TIME. This has led to a need for inflating segregation conefinement times for even relatively minor violations, a high number of false positive drug testing results due to misuse of their "drug sniffer" machines, the blockading of follow-up outside lab testing of positive tests, and a number of other suspect "violations" being written. If the segregation unit were emptied, there would be no place to house the inmates there.
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"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. Grammar mistakes and 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: Pedro A. Colón
Appointed to: Wisconsin Court of Appeals-District I Appointment date: June 20, 2023 (effective Nov. 18, 2023, to a term ending July 31, 2024) Education: Law School – University of Wisconsin-Madison Undergraduate – Marquette University, Milwaukee, Wisconsin High School – St. Thomas More High, Milwaukee, Wisconsin Recent legal employment: September 2010-present – Milwaukee County Circuit Court judge January 1999-September 2010 – State representative, 8th District, Milwaukee, Wisconsin June 2007-March 2008 – Attorney, von Briesen & Roper, S.C., Milwaukee, Wisconsin August 1998-June 2007 – Partner, Baxter, O’Meara, Leair, & Colon, S.C., Milwaukee, Wisconsin Bar and administrative memberships: State Bar of Wisconsin General character of practice: Prior to my appointment by Governor Jim Doyle in 2010 to the Milwaukee County Circuit Court, I was a state legislator for over a decade. During my time in the legislature, I also practiced law representing clients in civil litigation, criminal defense, and employment litigation. Describe typical clients: My clients were typically corporations and individuals in tort and employment litigation. I also represented families purchasing homes and businesses in the Spanish-speaking community. Number of cases tried to verdict: 60-70 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: Since joining the judiciary in 2010, I have served on four judicial rotations, each lasting at least three years. I have presided over various courts, including Children's Court, Small Claims, and General Felony. Currently, I am completing my rotation on the Civil Division, where I serve as Presiding Judge. Every case that comes before my court holds significance. I have endeavored to ensure that both my staff and I present ourselves in a way that is productive and understanding of the difficulties associated with litigation. During COVID-19, the calendar remained working and constant and, along with my colleagues, we were able to keep the courthouse open to litigants. I have recently tried 15 cases in the Civil Division in an effort to reduce the COVID-19 backlog of cases. When in the felony division, I approached the sentencing of defendants in my felony cases with great care, ensuring a thorough understanding of the guiding principles mandated by the Supreme Court. It is important to note that our state's prison population has doubled compared to our neighboring state of Minnesota since the passage of truth-in-sentencing laws by the legislature. In this context, sentencing becomes the most impactful proceeding in criminal courts as it has a significant impact, not only on victims and families, but more broadly on our communities that continue to spend increasing amounts of money on prisons while other important community needs remain stagnant. While at Children’s Court, in termination of parental rights cases where strict limits for decisions are imposed, I provided written decisions that explained my findings after a comprehensive examination of the case record. For probate cases and Chapter 51 commitment cases, I ensured that the County met its evidentiary burden in each instance. When handling Small Claims, I strove to give the parties the most extensive hearing possible. Recognizing that many litigants do not have the benefit of legal representation, I took extra care to explain the court's decision in a manner that they could comprehend, assuring them that the court had provided them with the fairest hearing possible. I am currently the Presiding Judge in the Civil Division. Under typical circumstances, the presiding judge of the division must manage the caseload, new developments in the law and provide procedural consistency to litigants. However, COVID-19 made the presiding judge’s task much more demanding as we faced a backlog of cases, a shortage of court reporters, a shortage of law clerks and the ever changing COVID-19 safety protocols. I endeavored to keep our division focused and, as of now, most of the calendars no longer have a backlog, we expect legal clerks and court clerks to be fully staffed by August (2023). Experience in adversary proceedings before administrative bodies: I have experience representing clients in cases before the Wisconsin Equal Rights Division based on age and race discrimination. I have also represented clients before the Social Security Benefits Appeal Board and Board of Zoning for license requests and appeals. Describe your non-litigation experience (e.g., arbitration, mediation). As a judge, I mediated a significant case involving tax assessments by one the municipalities in Milwaukee County. Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: I have been a candidate for office in six partisan and five non-partisan races. Prior to my appointment to the bench, I served in a volunteer capacity on several partisan and non-partisan campaigns for state and local offices. Since becoming a judge, I have remained actively involved in non-partisan state and local races. Previous runs for public office: State representative, District 8, elected 1998, 2000, 2002, 2004 and 2006 Milwaukee County Circuit Court, elected 2011, 2017 and 2023 Milwaukee city attorney, defeated 2008 All judicial or non-partisan candidates endorsed in the last ten years: Justice Janet Protsiewicz, Wisconsin Supreme Court, 2023 Justice Jill Karofsky, Wisconsin Supreme Court, 2020 Ed Fallone, Wisconsin Supreme Court, 2020 Judge Lisa Neubauer, Wisconsin Supreme Court, 2019 Justice Rebecca Dallet, Wisconsin Supreme Court, 2018 Judge Joe Donald, Wisconsin Supreme Court, 2016 Alderman Jose Perez, Milwaukee Common Council, 2016, 2020 Alderwoman JoCasta Zamarippa, Milwaukee Common Council, 2020 Mayor Tom Barrett, Milwaukee Mayor, 2016, 2020 County Executive Chris Abele, Milwaukee County Executive, 2016 Professional or civic and charitable organizations: United Community Center, board member, 2012-2021 Divine Savior Holy Angels, board member, 2015-2020 Greater Milwaukee Foundation, board member and co-chair, 2016-present Wisconsin Hispanic Lawyers Association, board member and former president, 1997-present American Constitution Society, Wisconsin Chapter B, 2018-present Wisconsin Bar Association, member, 1994-present Milwaukee Trial Judges, board member, 2010-present Significant pro bono legal work or volunteer service: I have participated in many pro-bono cases over my career, particularly in the Latino community, primarily assisting immigrant and Spanish-speaking clients. Quotes: Why I want to be a judge: For nearly 25 years, I have served our community: first as a state legislator, then as a Circuit Court Judge. The Court of Appeals plays a crucial role in reviewing cases, ensuring the Constitutional guarantees that in turn define our most significant values as a free and democratic society. I harbor a deep interest in ensuring Constitutional rights for our citizens and a passion for justice. The Court of Appeals allows me to decide cases of precedential value to litigants, lawyers and our community. My legislative and judicial work, coupled with my life experiences, will enable me to interpret the law with a broader lens, ultimately aiding me in deciding the disputes that come before the court. Currently, Wisconsinites appear deeply divided along partisan political lines. These divisions are increasingly brought before the courts for interpretation and decision-making. I firmly believe that applying a traditionalist approach to the Constitutional interpretation of law strengthens our democracy. For the better part of the last 20 years, ideologies such as "Originalism" or "Strict Constructionism" have steered a movement where judges increasingly constrain the courts' constitutional mandate under the guise of historical interpretation. Dispute resolution is now guided less by our shared experiences and more by rigidly applied rhetoric. The parties and the public rely on our courts to provide guidance for peacefully resolving disputes and to abide by laws that are clear and reflect our daily lives. An independent judiciary can only be as effective as the unbiased review provided by non-partisan courts. I am confident that I can contribute to the robust analysis of issues that come before the court. I aspire to serve as an Appeals Court judge because I aim to adjudicate cases impartially, ensuring that the scope of the litigation adheres to precedents set by both the U.S. and Wisconsin Supreme Courts and laws enacted by legislative bodies. This commitment in turn requires the courts to reconcile the current progression of human and scientific understanding and current precedent. The intentions of the Constitutional framers, to the extent we can discern them, are one of the factors, along with science and human development that drive our understanding of justice. 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. The Wisconsin Supreme Court’s decision in Vincent v. Voight, 236 Wis. 2d 588, authored by Justice Crooks, held that “Wisconsin students have a fundamental right to an equal opportunity for a sound basic education. An equal opportunity for a sound basic education is one that will equip students for their roles as citizens and enable them to succeed economically and personally.” (Para. 8.) For the first time, the Wisconsin Supreme Court recognized that every Wisconsin child has an equal right to a good education and that the Court will exercise its review authority to mandate that the legislature comply with the Constitutional mandate requiring equal funding between school districts and a free and sound education to every child. This decision exemplifies the struggle for courts to balance the co-equal power structure the Constitution demands. As explained in footnote 2, compliance with state constitutional mandates requires the Court to interpret compliance by the legislature and as such, the Court found that constitutional questions are a “justiciable issue.” Justice Abrahamson’s concurrence/dissent explains a “fundamental principle” of state constitutional law is that the Wisconsin Constitution, in contrast with the U.S. Constitution, is not a grant of, but a limitation upon, legislative power” Id. at para 94, fn. 1. As such, it requires that the Court review legislative mandate informed by compliance of the rights guaranteed in the State Constitution. Without footnote 2, minimal compliance would pass constitutional muster and truncate the court’s efforts to maintain its co-equal function with the legislative and executive branches. In contrast to the positive significance to the balance of power exercised in the Court’s decision in Vincent v. Voight, the decision in League of Women Voters v. Tony Evers, 2019 WI 75, narrows the scope of its review and gives complete deference to the legislature to interpret constitutional requirements holding that “extraordinary sessions do not violate the Wisconsin Constitution because the text of our constitution directs the Legislature to meet at times as “provided by law.” The Court reached its holding without regard to legislative practice in our state and omitted consideration of other legislative mandates inconsistent with its conclusion. As Justice Dallet points out in her dissent: Under the majority opinion's reading of Article IV, Section 11, the words "at such time" and "unless" become superfluous because the Legislature could meet at any time. … A continuous two-year session would also render meaningless several other laws which distinguish between days that the Legislature is in session and days when it is not. The majority opinion fails to logically explain how a continuous two-year session comports with the constitutional mandate to meet at "such time as shall be provided by law." Id., at para. 48 (citations omitted). This majority opinion posits a deep reliance on legislative deference often without due regard to the customary and reasonable interpretation of legislative customs and other laws. This form of analysis surrenders the court’s most significant role in our democracy; ensuring that constitutional mandates are robustly adhered to. Two or three judges whom I admire and why: Justice Shirley Abrahamson was and remains one of the most significant figures on our Supreme Court. She professionalized our court system by ensuring a judicial education system that focuses on Wisconsin law competencies. She brought technology to the courts. She respected the separation of powers by properly seeking funding for the judiciary. She made it clear that the Court is not a partisan forum for result-oriented analysis, but an independent reviewer of the lower court’s authority and final arbiter of constitutional rights. All of her opinions give clear guidance to lower courts. I admire the late Justice N. Patrick Crooks for his tolerance and total commitment to fairness. He is, to me, the gold standard of decency. In Vincent v. Voight, his reasoning is as tempered as it is progressive. He set a clear and strong precedent while respecting the other branches of government. Justice Crooks served on the Brown County Circuit Court for many years prior to becoming a Supreme Court Justice and had a deep personal understanding of the demands placed on circuit judges in daily administration of justice. Federal Judge Lynn Adelman is one of the most articulate and clear thinking judges presently in our courts. In Frank v. Walker, Case 11-CV-0922, after a thorough trial, he granted a permanent injunction of the Act 23 requirements for voter identification. Judge Adelman reviewed the evidence without omitting any facts and proceeded to fully flesh the factual underpinnings advanced by the proponents of voter identification requirements. To date, Judge Adelman’s decision in Frank v. Walker is the most accurate account of voting and voting rights laws as they played out in Milwaukee. Although the Seventh Circuit overturned his decision, it created an archival record of how voter ID requirements played out to ultimately undermine voter participation. More recently he has turned his attention to the over-utilization of prisons as a consequence of the truth-in-sentencing laws. The Adverse Impact of Truth-in-Sentencing on Wisconsin’s Efforts to deal with Low-Level Drug Offenders, Valparaiso University Law Review, Vol 47 No. 3. The proper role of a judge: The proper role of a judge is to be thorough, prepared, and to allow the parties to present their arguments, if those arguments are founded in facts that have been adversarially tested and soundly guided by evidentiary requirements. A judge's principal role is to safeguard the court's constitutional role, an area where all three co-equal branches of state government share power and authority in accordance with the Wisconsin Constitution. This is indeed "a delicate exercise in constitutional interpretation" (Vincent v. Voight, 286 Wis. 2d 588, Para. 2, fn. 2). While courts should not seek to create controversies where there are none, they must make sound decisions when necessary. By Alexandria Staubach
The Wisconsin Supreme Court heard three hours of oral argument yesterday in a case that could upend the state’s legislative maps, widely considered to be heavily gerrymandered in favor of Republicans. Conservative justices said “we would not be here” absent a change in the court’s composition, while the more liberal justices focused on the mechanics of producing new maps should the Court find the current ones unconstitutional. In a petition filed in August by 19 Democratic voters, the justices were asked to declare the state’s current state legislative maps unconstitutional and to order new maps be drawn ahead of the 2024 election. The suit was filed on August 2, one day after Justice Janet Protasiewicz took office. In an October order, the Court agreed to hear two of the four presented constitutional claims: (1) whether the state’s legislative districts violate the Wisconsin Constitution’s requirement that districts be compact and contiguous and (2) whether the maps as currently drawn violate separation of powers under the state Constitution. The Wisconsin Constitution requires that districts be compact and contiguous, while several districts currently resemble Swiss cheese. Counsel for the Republican Legislature, represented by Taylor Meehan, a former law clerk to U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas, argued several originalist interpretations of the word “contiguous” and whether it indeed means physical touching or a “looser” definition. Meehan ultimately landed on the possibility that the looser definition can apply and that Gov. Tony Evers accepted the maps as sufficiently contiguous by failing to argue otherwise in previous litigation. At least one justice pointed out that a failure to previously argue the unconstitutionality of something does not make that same thing constitutional. Justice Rebecca Grassl Bradley interjected frequently. She asked whether some parties could accept the integrity of the Court’s decision given that the Court’s new member, Protasiewicz, called the maps “rigged” on the campaign trail. Richard Esenberg, founder of Wisconsin Institute for Law & Policy and counsel for the intervening Wisconsin voters, said that while that may be an argument later it was not an issue presently. Esenberg said the Court’s job now was merely to “fix constitutional violations” of individual districts should the Court find any. Grassl Bradley repeatedly stated that the suit would never have been brought in the absence of the new justice. Mark Gaber, an attorney from the Campaign Legal Center, responded this was inaccurate. Gaber argued that contiguity was (1) never previously argued and (2) is not a partisan issue. Some justices, however, were concerned that taking the case was a “slippery slope” toward hearing new redistricting cases every time the court's makeup changes. In addition to contiguity and separation of powers issues, argument addressed whether the Court should take account of the partisan effects of any maps it may adopt. Justice Jill Karofsky stated that by failing to consider partisanship the Court “could be letting it play a big role.” Justice Rebecca Dallet was interested in who the parties thought should assist the Court in redrawing any new maps as well as the practicalities of drawing non-partisan maps. WJI and the Wisconsin Fair Maps Coalition filed an amici curiae brief in the suit, arguing caselaw that supports Karofsky’s position. The petitioners seek a remedy that challenges a lawmaker’s right to hold office. If the petitioners are successful, some senators would be required to run for two-year terms in new districts as part of a special election in 2024, despite their being in the middle of four year terms. Grassl Bradley said she “couldn’t imagine something less democratic.” The proposed remedy also raised questions as to whether actions taken by the Legislature since the current senators’ election are constitutional. But while petitioners stood by their sought remedy, there was no affirmative argument that every law passed since the last election should be invalidated. The Wisconsin Elections Commission has said that any new maps must be in place by March 2024 for next year’s elections. Note: Wisconsin is one of just three states (Georgia and Texas are the others) in which 17-year-olds are automatically treated as adults for purposes of criminal charges. The other 47 states process charges against 17-year-olds within the juvenile justice system. Wisconsin Justice Initiative has joined the Raise the Age Coalition, advocating for legislation to return Wisconsin's 17-year-olds to juvenile court. By Roy Rogers Guest Columnist Outside of the brain development research that counsels against treating 17-year-olds as adults, placing them in an adult setting is unhealthy and borders on benign cruelty. For these 17-year-olds, and those even younger, treating them like adults and keeping them in the adult system, together with more sophisticated adult criminals in the facilities, could, can, and has led to increased criminality in the institutional settings. At times they are forced to partake in activities that are harmful for them, due to the strong pressure from mob mentality and older incarcerated people. You increase the likelihood of assaults and trauma and aggravate mental health issues, which a lot of young people are dealing with when they enter into the correctional system. People sometimes have the misconception that the young person will have access to more treatment resources in the adult facilities, but that is not the case. More than likely, 17-year-olds going into the adult system have lengthy sentences. With long incarceration times, the likelihood of getting them involved in any treatment programs is thin. The institution will consider them too early in their sentence structure for programming treatment. In modern correctional wisdom, programming and treatment are provided to those who are about to return to the community within the next year or two, five years at the most. Accountability and treatment in a setting conducive to healing and restoration are what 17-year-olds need — not to be placed in a problem-plagued adult system that is not getting better anytime soon. I knew a few 17-year-olds who were treated as adults after having been waived into adult court. There were some commonalities in their incarcerated experience:
These scenarios become even more glaring if a youth is a part of the LGBTQ community. In the hypersexual prison settings, trauma for these youth will come from both ends — staff and fellow incarcerated people, some out of ignorance and some out of intention. Why put any 17-year-old through that? We know adolescents make bad decisions; that’s no secret. And yes, sometimes those bad decisions have great consequences in our community and accountability is a must. However, accountability is also about having the opportunity to make amends. Placing a 17-year-old in the adult system actually closes the door on the meaningful opportunity to make amends. The adult system is not set up for that in any shape or form. If the youth is kept within the juvenile system, programming and a wide variety of treatment options are available. A package of community service, community counseling, community accountability, and community engagement can all be put in place for the eventual restoration of these youth back into the community. I, too, was once a 17-year-old in the adult system. So I bear witness and have first-hand knowledge of everything I speak of. In the field of macroeconomics, we talk a lot about marginal analysis in which we compare marginal benefits against marginal costs in our economic decisions. So from my economic perspective, when the marginal costs outweigh the marginal benefits, it is a bad decision. The marginal costs of placing 17-year-olds in the adult system outweigh whatever marginal benefits policymakers think will occur. Such a decision can cost children their lives. It can cost them through the inability to recover from the traumas of being a child in an adult prison. Plus, the potential for them to be trapped in the cycle of incarceration increases dramatically. The humanitarian cost outweighs any economic benefit one may gain by treating these 17-year-olds like adults. Treating these juveniles as adults is a bad decision.  Roy Rogers is a Wisconsin Justice Initiative board member. He is a data solutions processor at Quad Data Solutions and a preentry and reentry liaison and information analyst for the nonprofit organization The Community. He also is a public speaker and advocate with the Wisconsin Alliance for Youth Justice.
Rogers committed himself to juvenile justice issues while serving 28 years as a juvenile lifer in the Wisconsin prison system. Now, after release, he counsels and mentors at-risk youth. He is committed to the philosophy of restorative justice, criminal justice reform, and second-chance opportunities for juveniles waived into adult court and sentenced as adults. By Alexandria Staubach Despite strong public comment against the measure, the Wisconsin Senate on Tuesday approved a bill criminalizing the operation of a motor vehicle without a valid license. The bill passed 20-13 with solely Republican support. All Democrats voted against the bill, joined by two Republicans. The chart below shows the votes. As previously reported by WJI, under current law, most operating-while-suspended violations are forfeiture violations resolved in municipal court. SB 404 enhances the penalties for operating-while-suspended, turning even first offenses into misdemeanors. The cost of the legislation was highlighted by community members at a hearing in October before the Senate Committee on Judiciary and Public Safety. Legal Action of Wisconsin estimated that the bill could result in approximately 100,000 more criminal charges annually. The Wisconsin State Public Defender (SPD) estimated that under just two specific provisions of the bill 6,901 new cases would be generated from new charges in the first year, with 4,600 of those cases qualifying for SPD services. Those cases would equal the workload of nine additional attorneys. The bill as passed appropriates no funding for the added burdens on the SPD or circuit courts. WJI opposes the bill. In written testimony to the Senate committee, WJI stressed that in 2022 a failure to pay prior forfeitures caused 47% of license suspensions and that most of those with outstanding forfeiture debt lack the means to pay. At the committee hearing, James Gramling, a former Milwaukee Municipal Court judge and member of the 1995 Governor’s Task Force on Suspended and Revoked Drivers said, “In my view you would be creating debtors’ prisons.” Sen. Kelda Roys (D-Madison) said at the hearing, “The legislature is making it very difficult to be responsible so legislators can get good headlines about being in touch on crime when what we are criminalizing here is poverty and not dangerous conduct.” The bill does not just endanger those with suspended licenses. It will also further jeopardize undocumented workers who remain ineligible for licenses under Wisconsin law. For example, in farming communities like Abbotsford, Wisconsin, 134 of 157 tickets examined for driving without a valid license were issued to persons with common Hispanic surnames, a summer ProPublica investigation found. The bill proceeds to the Assembly for its consideration. A companion bill, AB 421, was introduced in the Assembly in September and referred to its Committee on Transportation.  By Alexandria Staubach The Wisconsin teacher fired over her comments about the “Rainbowland” song says that since her termination the temperature for teachers has continued to escalate. Teachers both in and outside the state have reached out to her to report terminations they think were the result of supporting LGBTQ+ rights or being part of the LGBTQ+ community. “My hope was to help avoid exactly this,” Melissa Tempel told Wisconsin Justice Initiative in a recent chat about her firing and the wrongful termination case she has filed against the Waukesha School District. She said she had hoped her actions would further the district being a safe space for everyone. Tempel has more than 23 years of experience as an educator in Wisconsin schools. She spent much of her career specializing in English as a second language in the Milwaukee Public Schools. In 2018, she moved to the Waukesha School District, where she taught first grade at Heyer Elementary School. Tempel was terminated in July 2023 for her public comments following her school’s ban on the song “Rainbowland.” She is now suing the district and its superintendent, James Sebert. Throughout Tempel’s tenure the district maintained “Policy 2240,” regarding “controversial issues in the classroom.” The policy states that “the Board believes that the consideration of controversial issues has a legitimate place in the instructional program of the district.” The policy permits introduction of a controversial issue if it:
According to Tempel’s lawsuit, under Policy 2240 the district in August 2021 banned signage related to the Black Lives Matter movement and subsequently expanded restrictions to apply to anything related to being an “anti-racist.” The policy prohibited Gay-Straight Alliance locker signs, but “Students for Life” and "Thin Blue Lines" signs remained displayed in common areas around the district. While the policy ostensibly applied to include “Blue Lives Matter” and “Thin Blue Lines,” Tempel said it was not applied evenly to pro-law enforcement materials. Tempel also recalled a time over a holiday break when custodians were permitted to remove any sign they deemed controversial. According to the suit, during the 2021-2022 school year Policy 2240 was used to address increasingly specific conduct, like teacher attire, and expanded to include affinity with the LGBTQ+ community. In January 2022, a teacher was suspended without pay for putting up a Pride flag and refusing to take it down. The lawsuit highlights several instances when the district’s enforcement of the policy generated backlash—for instance, a petition started in September 2021 calling on the district to walk back discriminatory restrictions now has more than 4,500 signatures, and in October 2021, 30 parents, students, teachers, and community members protested and gave Sebert a letter objecting to the policy. Tempel’s complaint asserts that in June 2022, 54 teachers resigned from the district, and several testified publicly at a school board meeting that they also resigned in direct response to Policy 2240. In January 2023 the district updated its dress code: “(S)taff are not permitted to wear or display on their person any item (e.g. symbols, graphics, images, or text) while at work that may be considered political, controversial, or divisive, or which is likely to distract from student learning, disrupt the school environment, or cause disharmony in the workplace. This includes, but is not limited to, clothing and/or accessories, such as lanyards, masks, and pin/ buttons.” Tempel told WJI that the policy didn’t outright ban rainbows, but from then on identification-badge lanyards and face masks had to be a single color. By spring of 2023 tension reached a fever pitch, and, as has been widely reported, Tempel’s class was forbidden from singing “Rainbowland,” by Miley Cyrus and Dolly Parton, at a school concert with the theme “The World.” In the wake of the ban, Tempel took to Twitter. On March 21, at 6:39 p.m., she posted: “My first graders were so excited to sing Rainbowland for our spring concert but it has been vetoed by our administration. Where will it end?” Her tweet included a graphic showing some song verses:  Tempel told WJI that the tweet “took off,” as “a freak occurrence of the internet.” By March 24 the district issued a public statement that the principal and central office administration determined the song could be deemed controversial and was banned in accord with Policy 2240.
When school resumed after spring break, Tempel was placed on administrative leave effective immediately. Tempel told WJI she never saw her class again and she was subsequently terminated from her job. In recommending termination, Sebert wrote to Tempel that she was “entitled to disagree with the decision of the District related to the use of the song ‘Rainbowland’ at the Heyer concert.” However, the manner in which she chose to express her disagreement was “inappropriate, disruptive, and in violation of various District policies,” he said. In the letter, Sebert accused Tempel of “deliberately and intentionally” undermining the interests of the district. Tempel is suing the district and Sebert, alleging they violated her First Amendment right to freedom of speech and that the district’s conduct is likely to deter a person of ordinary firmness from engaging in protected speech. Wisconsin is experiencing a 14-year high in teacher turnover, with rates that surged to 15.8% in 2023, according to an August Wisconsin Policy Forum report measuring the rate of teachers moving between districts or leaving the profession altogether. The 2023 numbers are topped only by those seen in 2012 in the wake of Act 10, which limited public employee collective bargaining. The report found that teachers of color “turned over at rates substantially above the state average.” Previous Wisconsin Policy Forum reports suggested that districts and school leaders may reduce turnover when they “foster organizational cultures and climates that affirm teachers’ identities.” By way of contrast, Tempel’s complaint alleges the Waukesha School District suspended diversity, equity and inclusion training for staff in July of 2021, along with the work of the district’s Equity Leadership Team. Tempel is currently not working as an educator in Wisconsin. Sebert and the district have moved to dismiss Tempel’s lawsuit. By Alexandria Staubach
The Wisconsin Court of Appeals on Monday ordered that JusticePoint’s services for Milwaukee Municipal Court remain in place while litigation between the organization and the City of Milwaukee proceeds. As WJI previously reported, JusticePoint’s contract to provide Milwaukee Court Alternatives Program (MCAP) services was terminated by two of the three Milwaukee Municipal Court judges without much explanation, under a “convenience” clause. The city notified JusticePoint of the termination in May, giving the organization until mid-July to finish its work. The court did not name any successor provider for the MCAP services and has said it will seek bids at some future date. That means that without JusticePoint, municipal court defendants will lose the assistance the organization provides for completing community service requirements, handling inability to pay forfeitures, or finding various social services. JusticePoint sued the city on July 10, moving for a temporary restraining order (TRO) and preliminary and permanent injunctions to keep its contract and the program alive. JusticePoint argued that termination of its contract violated the Wisconsin Fair Dealership Law (WFDL). Milwaukee County Circuit Judge Hannah Dugan granted JusticePoint a TRO on July 10 to prevent expiration of the contract. But on Oct. 5, Judge J.D. Watts denied a preliminary injunction and dismissed JusticePoint’s case. Watts issued a 30-day stay of his decision to allow an appeal, but he refused to issue a stay that extended any longer. JusticePoint then sought continuation of the TRO by the appeals court. Justice Point will now continue to provide services to Milwaukee Municipal Court pending a decision on the appeal. The issues on appeal will require the court to evaluate whether the WFDL applies to the city’s relationship with JusticePoint. Under the WFDL, a dealership exists when a person or entity “is granted the right to sell or distribute goods or services,” and when a “community of interest” exists between the parties. JusticePoint’s argument is that it distributes city services to individuals using the MCAP and that it has invested in the program. Monday’s decision by Court of Appeals Judge M. Joseph Donald focused on the procedural aspects of granting a stay of Watts' order and evaluated three factors: 1) likelihood of success on appeal; 2) irreparable injury in the absence of stay; and 3) the existence of substantial harm to other interested parties. In examining these factors, Donald found that “JusticePoint showed more than a possibility it would prevail”; the stay was otherwise appropriate, as full-time staff could be lost and reputational harm to the program could result if the program is ultimately continued; and substantial harm could result to defendants who receive JusticePoint's MCAP services with no clear alternative to those services in place. Donald said his order will “maintain the status quo” pending a decision that will resolve the appeal. By Margo Kirchner
Wisconsin Justice Initiative and the Wisconsin Fair Maps Coalition (FMC) on Wednesday jointly filed a motion seeking leave to submit an amicus curiae (friend of the court) brief in the redistricting case before the Wisconsin Supreme Court. The case concerns whether the present voting-district maps for the Wisconsin Legislature violate the Wisconsin Constitution’s requirements regarding contiguous districts and separation of powers between the three government branches. Districting maps are to be adjusted every 10 years after census results are published. The present districting maps were adopted by the Supreme Court in spring 2022 after the legislative process failed. Gov. Tony Evers vetoed redistricting maps passed by the Legislature, and the Legislature failed to override the veto. The Wisconsin Supreme Court first adopted a set of maps that were invalidated by the U.S. Supreme Court. The Wisconsin Supreme Court then adopted the same maps from the Legislature that Evers had vetoed. When vetoing those maps, Evers referenced how highly partisan they were. He said he’d promised he would never sign gerrymandered maps and his veto delivered on that promise. In their proposed brief, WJI and FMC argue from the viewpoint of the overwhelming number of Wisconsin citizens who demand nonpartisan district maps and whose voices are not being acknowledged by the Legislature. FMC is an umbrella organization of numerous local and regional fair-maps activist groups. WJI and FMC contend that the court’s adoption of the current maps constituted an impermissible judicial override of Evers’ veto, in violation of separation-of-powers requirements in the state constitution. WJI and FMC further argue that in crafting any new set of maps as a remedy, the court must take into account the partisan effects of those maps and the people’s demand for nonpartisan maps. WJI and FMC argue in their brief that by failing to consider the partisan effects of the maps it chooses, as the court did in 2022, the court actually acts in a partisan manner. Wisconsin Manufacturers & Commerce also seeks leave to file an amicus brief. Notably, WMC states in its motion that it has a “strong interest” in the case because “WMC and its members have forged relationships with the representatives elected pursuant to the current maps” and “(m)embers of WMC have relied on political vows made by those same representatives.” Other individuals and organizations seeking leave to file amicus briefs:
"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. Grammar mistakes and 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: Ronnie V. Murray II
Appointed to: Milwaukee County Circuit Court Appointment date: July 20, 2023 (effective Nov. 19, 2023, to term ending July 31, 2024) Education: Law School – University of Wisconsin-Madison Undergraduate – University of Wisconsin-Whitewater High School – Edgewood High, Madison, Wisconsin (earlier Madison West High) Recent legal employment: March 2015-present – Associate federal defender, Federal Defender Services of Wisconsin, Inc., Milwaukee, Wisconsin June 2012-March 2015 – Assistant state public defender, Wisconsin State Public Defender, Green Bay, Wisconsin Bar and administrative memberships: State Bar of Wisconsin U.S. District Court for the Eastern District of Wisconsin U.S. District Court for the Western District of Wisconsin General character of practice: I represent criminal defendants in federal court at both trial and appellate level. I also represent clients in supervised release revocation matters. Describe typical clients: My practice is exclusively criminal defense, though clients are quite diverse. My practice requires particular specialization in constitutional law, including the Second, Fourth, Fifth and Sixth Amendments and I am likewise specialized in trial and pretrial motions practice. Beyond legal specialization, my practice requires strategic mitigation work, theory development and narrative formulation, in addition to relationship management and rapport building with clients and other stakeholders. Number of cases tried to verdict: 11 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: In United States v. Walker, 931 F.3d 576 (7th Cir. 2019), I argued that my client's conviction for failure to register as a sex offender should be vacated due to a Sixth Amendment violation. Justice Amy Coney Barret authored the opinion granting vacatur, which has now been cited numerous times as support for employing a categorical approach when comparing state statutes to federally-defined offenses. I was trial and appellate counsel in the Eastern District of Wisconsin and in the Seventh Circuit. In United States v. Wade, 962 F.3d 1004 (7th Cir. 2020), I argued that my client's conviction for impersonating an officer should be overturned for failing to require proof of fraudulent intent at trial. Although the appeal did not prevail, the Seventh Circuit pattern jury instruction was modified in response to this case to include intent as an element, thereby heightening the burden of proof required for conviction under that statute. I was trial and appellate counsel in the Eastern District of Wisconsin and the Seventh Circuit. In United States v. Brown, 459 F. Supp. 3d 1171 (E.D. Wis. 2020), I argued that the jury's guilty verdict for possession of a firearm in furtherance of a bank robbery should be overturned because the firearm was left in the vehicle during the robbery. Notwithstanding the "nearly insurmountable" burden, the trial judge entered a judgment of acquittal on that count, thereby relieving my client of exposure to a mandatory minimum, consecutive sentence. Experience in adversary proceedings before administrative bodies: As a state public defender, I represented clients in supervision revocation hearings before an administrative law judge. As a law student, I handled an unemployment benefit appeal case and appeared before an administrative law judge. Also as a law student, I participated with a senior attorney in administrative driver's license revocation hearings. Describe your non-litigation experience (e.g., arbitration, mediation). N/A Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: N/A Previous runs for public office: N/A All judicial or non-partisan candidates endorsed in the last ten years: N/A Professional or civic and charitable organizations: May 2018-present: Eastern District of Wisconsin Bar Association, Executive Committee, treasurer 2020-present: Milwaukee Bar Association, Diversity Clerkship Selection Committee Significant pro bono legal work or volunteer service: I regularly volunteer to speak at youth events and programs at the federal courthouse, including career panels and informational sessions regarding internship or mentor programs. Quotes: Why I want to be a judge – Criminal justice reform is my passion. I entered the legal field to stem the tide of mass incarceration we are currently engulfed in. In the United States, we imprison more of our citizens than any other country in the world, and the racial disparities in Wisconsin rank among the nation’s highest. Milwaukee County in particular has one of the highest incarceration rates for black males. A determination to address these disparities has led me to practice criminal defense, and now to seek this judicial appointment. Although a county judge cannot correct all the ills facing his or her community, I would have the opportunity to positively affect more lives from the bench than I do as a defense attorney. I believe being smart on crime is preferable to merely being “tough,” even though the latter may be more politically expedient. Over-incarceration is harmful to communities and does not make the public safer. Upholding the constitutional rights of our citizens is just as important as promoting public safety, and the two are not mutually exclusive. I would seek to achieve both from the bench. I believe Wisconsin needs more judges from diverse backgrounds, particularly with criminal defense experience. Many judges are former prosecutors; few come from the defense table. I think we need more balance on the bench—people from both sides of the spectrum. Judges routinely make decisions that affect the lives of many people, and representing criminal defendants affords a degree of perspective that can contribute to more measured judgment in adjudicating cases and imposing sentences. My experience representing a diverse array of Wisconsin’s citizens will help inform my decisions as a judge. I believe that I would grow well into this position and would be an asset to Milwaukee County’s residents. 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. In United States v. Booker, 543 U.S. 220, the Supreme Court rendered the federal sentencing guidelines advisory in its landmark 2005 decision. Before then, the sentencing guidelines were mandatory, and federal judges had little discretion in determining an appropriate sentence for offenders who appeared before them. The impact on sentencing practice in the Eastern District of Wisconsin has been remarkable. Before Booker, our judges had almost no discretion to make an independent judgment about a particular sentence. Now, our district ranks among those with the highest rates of downward sentencing variances. In other words, because of Booker our judges are now able to impose far more reasonable sentences, and they do. While the fraction of Wisconsin’s population directly affected by federal sentencing practice in this district might be small, the impact on those affected can be life changing. Having seen first-hand the effects of this decision, I would rank it among the most important for Wisconsin’s citizens over the last 25 years. Two or three judges whom I admire and why: Justice Thurgood Marshal From successfully arguing the case of Brown v. Board of Education, to becoming the nation’s first black Supreme Court member, Justice Marshal was a pioneering trailblazer whom I’ve looked up to for some time. His record speaks of a person committed to fighting for the rights of “little guy,” which I’ve hoped to emulate as my career has progressed. I have always been impressed by the justice’s resilience, determination and intellect. He took the fights that mattered and didn’t back down, even where the odds were against him, and he was hugely successful. It is difficult for me to imagine a more impressive legal career than that of Justice Marshal, and I can only hope for a fraction of his success. The Honorable Everett Mitchell I attended law school with Mr. Mitchell, who is now a Dane County circuit court judge. He was a prosecutor in the District Attorney’s office when I interned with the public defender in Madison, and I had the opportunity to work a case with him. He was fair and reasonable, and it was obvious that he genuinely cared about the defendants he charged. When I learned that he’d become a judge, I knew Dane County would be lucky to have him. Mr. Mitchell has set an example that I hope to follow. To me, he represents achievement in the face of significant adversity and affirmation of the notion that, no matter where you came from, you can overcome your circumstances. Moreover, I admire his commitment to public service and community involvement in the city where I was raised (Madison). I hope to substantially model my career after his. The proper role of a judge: I believe the primary role of a judge is to adjudicate disputed issues fairly, impartially and according to applicable law. The judge sets the tone and decorum of the proceedings. A judge should inspire confidence in the judicial process and treat its litigants with respect and dignity. A judge should ensure that each party appearing before the court has a meaningful opportunity to be heard. Judges should be excellent listeners and agile thinkers. Judges should be open-minded and humble because they carry a great responsibility and wield significant power. A judge also should be principled and willing to make tough decisions that may not be popular. As we await opinions from the Supreme Court of Wisconsin's new term, we've gone back to a few decisions from last term to crunch them down to size. Note: This one is a little different. WJI's "SCOW docket" pieces generally include decisions, dissents, and concurrences all in one post. This time, with this case, we are doing it in three: first the decision, then the dissent, then the concurrences. Why? Because this package of writings is extremely important for future ballot questions regarding state constitutional amendments. Besides that, the SCOW decisions are unusually long – 111 pages in all, not counting the cover sheets. Plus, it's a case that WJI cares a lot about. Instead of allowing each writing justice 10 paragraphs, we are giving the majority opinion writer 18 and each other opinion writer 15. Other than that, the rules remain the same. The "upshot" and "background" sections do not count as part of the paragraph restrictions because of their summary and very necessary nature. We've removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names and emphasis added by the opinion writer, all of which also are italicized. The case: Wisconsin Justice Initiative, Inc., et al. v. Wisconsin Elections Commission, et al. Majority opinion: Justice Brian Hagedorn (42 pages), joined in full by Chief Justice Annette Ziegler and Justices Patience Roggensack and Rebecca Grassl Bradley, joined in part by Justices Rebecca Frank Dallet and Jill J. Karofsky Concurrence: Grassl Bradley (14 pages), joined by Ziegler and Roggensack Concurrence: Dallet (32 pages), joined in full by Karofsky, joined in part by Justice Ann Walsh Bradley Concurrence: Hagedorn (9 pages), joined in part by Dallet Dissent: Walsh Bradley (14 pages)   Grassl Bradley Grassl Bradley Concurrence I join the majority opinion and write separately to explain why the "every essential" test is incompatible with the political question doctrine. As the majority holds, whether a ballot question states "every essential" of a proposed amendment is non-cognizable. Nevertheless, three justices cast themselves as legal writing professors with the power to grade the legislature's work. Justice Rebecca Frank Dallet, joined by Justice Jill J. Karofsky, writes in concurrence to give the legislature's work a passing grade, while Justice Ann Walsh Bradley, in dissent, gives the legislature an F. This court lacks the authority these justices would usurp from the legislature. The "every essential" test is incompatible with the political question doctrine for at least two reasons. First, Article XII, Section 1 of the Wisconsin Constitution assigns the legislature, not the judiciary, the power to determine the manner by which a proposed amendment is submitted to the people. It states, in relevant part: “[I]t shall be the duty of the legislature to submit such proposed amendment . . . to the people in such manner and at such time as the legislature shall prescribe; . . . provided, that if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately.” Self-evidently, while this provision requires the legislature to submit a proposed amendment to the people, it also gives the legislature, not the judiciary, the power to determine how that submission occurs. The constitution imposes only one textually-expressed limitation on the legislature's power to determine the manner of submission: "if more than one amendment be submitted," the people must be able to vote on each separately. The judiciary does not have the authority to compel the legislature to exercise its power over the manner of submission in a particular way. As explained more thoroughly below, this court possesses the power to determine whether a proposed amendment was even submitted to the people, but such a claim is distinguishable from a complaint about an unartful manner of submission. This case accordingly presents a separation of powers issue. As one amicus curiae explains, "[i]f affirmed, the circuit court's decision could force the [l]egislature to use new language that no longer expresses the [l]egislature's desired meaning. . . . [T]he [l]egislature presumptively chose those words for a reason[.]" Challenges to the manner of submission are therefore "beyond the purview of judicial review" because they present purely political questions. The desire of Justices Ann Walsh Bradley, Dallet, and Karofsky to entertain these political questions would likely spawn "defensive" ballot question drafting. The legislature could, for example, quote the proposed amendment verbatim on the ballot, perhaps satisfying the values-based concerns of the aforementioned justices. The Wisconsin Constitution, however, does not impose such a cumbersome requirement. Second, the "every essential" test is not a "manageable standard[]" by which the judiciary could objectively evaluate the manner of submission. The judicial power vested in this court by Article VII, Section 2 of the Wisconsin Constitution, like the judicial power vested in the United States Supreme Court, "is the power to act in the manner traditional for English and American courts. One of the most obvious limitations imposed by that requirement is that judicial action must be governed by standard, by rule." These standards and rules must be "'principled, rational, and based upon reasoned distinctions' found in the . . . law[]." Otherwise, "intervening courts—even when proceeding with best intentions—would risk assuming political, not legal, responsibility[.]" Whether a particular characteristic of a proposed amendment is "essential" sounds a lot like the "I know it when I see it" test. The judiciary, however, must make decisions based on reason, not instinct. *** Recognizing the inherent vagueness of the "every essential" test, Justice Dallet "acknowledge[s] . . . that this rule doesn't always provide clear answers." In actuality, the "every essential" test is incapable of providing any answers whatsoever. The test is based purely on subjective perception, not objective rule. As Justice Dallet reasons, "[b]ecause a summary . . . will always be incomplete and isn't meant to take the place of the text of a proposed amendment, judgment will always be required. But that is okay. We trust judges to make judgment calls all the time[.]" Her view invites judicial overreach because it is based on the rule of judges rather than the rule of law. Embracing a standardless test would empower a single circuit court judge in a single county to toss the results of a statewide election based on little more than subjective predilections. This court would become the final arbiter of every proposed constitutional amendment, without any express grant of constitutional authority to second guess the legislature's work. As the majority notes, only once in Wisconsin's 175-year history has this court declared a proposed amendment was not ratified based on a challenge to the wording of a ballot question—despite the Wisconsin Constitution having been amended nearly 150 times. *** Similar to Justice Dallet, Justice Ann Walsh Bradley never defines an "essential," instead concluding "[b]y any definition of the word" the ballot question in this case was legally inadequate. The definition, however, matters a great deal, largely because the difficulty in defining the word demonstrates that judges should not be defining it in the first place. *** Unlike the "every essential" test, the counterfactual test this court adopts is consistent with the text of Article XII, Section 1 of the Wisconsin Constitution and is justiciable. While the legislature has the power to decide the manner by which a proposed amendment is submitted to the people, the legislature has the "duty . . . to submit such proposed amendment[.]" That duty is not fulfilled when the ballot question misidentifies the proposed amendment with counterfactual information. A challenge alleging the presence of counterfactual information takes issue not with the "manner" of submission but with whether submission even occurred. Applying the counterfactual test therefore does not usurp the legislature's authority but rather ensures the legislature has fulfilled its constitutional duty. *** The counterfactual test is straightforward and capable of judicial review: Did the ballot question contain clearly false information? Whether a statement is true or false is simply a factual determination, and while factual determinations are not always easy, they do not turn on personal beliefs. A factual determination is difficult only to the extent that evidence is lacking or conflicting. In contrast, the "every essential" test is largely indeterminate, even if the evidence is clear, precisely because it requires a judge to form a political opinion. *** . . . . Justice Dallet suggests that determining whether a test is objective is itself a subjective determination and therefore cannot be done properly. Obviously, subjectivity and objectivity exist on a spectrum, just like the colors white and grey. Just as a reasonable person can look at a color and determine whether it is white or grey, a reasonable person can look at a legal test and determine whether it is subjective or objective. No one can seriously question the objectivity of the counterfactual test, even if it may be difficult to apply in some cases (although not in this one), or the subjectivity of the "every essential" test. The former is indeterminate only to the extent a factual determination is impossible, but the latter is indeterminate even when the facts are undisputed. Notably, Justice Dallet never argues the "every essential" test will constrain judges acting in good faith to the same extent as the counterfactual test. *** Unlike the "every essential" test endorsed by three justices, the counterfactual test safeguards democracy by preserving the prerogatives of the people's representatives in the legislature to decide political questions. Three justices would instead supplant the legislature's constitutionally assigned role, arrogate the power to set aside the not- particularly-close results of a lawfully-conducted election, and embrace a judicially invented test never before applied in the history of Wisconsin. None of these justices defines with any particularity the test they propose to determine whether such an undemocratic remedy is warranted, much less identify the source of their authority to impose it. Without elaboration on the "every essential" test, judges are licensed to inject their political will into the analysis, potentially substituting their will for the will of the people. Ironically, these justices suggest that if the judiciary is denied the power to discard election results at will, democracy will suffer. Their concerns arise from both a misunderstanding of the constitutional purpose of a ballot question and a distrust of voters. For example, the dissent complains, "[t]hose voters who do not research a proposed amendment beforehand will see the ballot question and only the ballot question prior to casting their votes." Dissent, ¶189. The constitutional purpose of a ballot question, however, is not to educate voters. As indicated by the historical analysis discussed in the majority opinion, a ballot question merely identifies the particular proposed amendment the voters will decide to ratify——or not. Second, as the Wisconsin Elections Commission explains, "[v]oters are expected to review . . . election notices and apprise themselves of public debate, and educate themselves on the substance and implications of a proposed amendment." By analogy, a ballot for President of the United States does not describe the candidates or their platforms. Voters are trusted to inform themselves.  Dallet Dallet Concurrence
I agree with the majority that Marsy's Law was validly adopted because the amendment complied with Article XII, Section 1's requirements that proposed constitutional amendments be "submit[ted] to the people" and not contain "more than one amendment." Evaluating whether Marsy's Law was submitted to the people requires us to balance two competing interests reflected in Article XII, Section 1: (1) the legislature's authority to specify the time and manner in which amendments are to be submitted, and (2) the people's right to evaluate and vote on proposed constitutional amendments. Doing so leads to the conclusion that Marsy's Law was submitted to the people because the summary of the amendment that appeared on the ballot accurately summarized the significant changes the amendment would make to the constitution. The majority uses a similar interest-balancing approach, but arrives at a rule that is too narrow. And it does so only after a ten-page digression extolling the virtues of originalism, which it then tacitly abandons as futile. Because I reject both originalism and the majority's narrow conception of what it means for a proposed amendment to be submitted to the people, I respectfully concur. *** I disagree with (the court’s adherence to originalism) for three reasons. First, the majority's claim that originalism is somehow our settled approach to constitutional interpretation is incorrect. In fact, many of our recent cases use a more inclusive approach to constitutional interpretation that considers more than merely text and history. Second, the majority's two defenses of originalism—(1) that originalism is simply how we interpret any written law, and (2) that originalism constrains judges to their proper role by providing a basis for decisions different than a judge's personal views—are both unconvincing. In my view, a more pluralistic method is needed to interpret faithfully the Wisconsin Constitution (or the United States Constitution for that matter). Under such an approach text and history of course matter, but so do precedent, context, historical practice and tradition. And third, an earlier court's choice of an interpretive methodology like originalism does not bind later courts to use that same methodology. *** (The majority’s claim that the court has consistently used and has doubled down on originalist interpretation) is incorrect. In fact, in a number of recent cases the court has taken a more pluralistic approach to constitutional interpretation that takes into account more than just text and history. (Citing cases) (T)hese decisions and others like them were criticized by some justices as non-originalist, or at least not sufficiently originalist. Thus, the majority cannot claim that originalism is somehow our consensus approach to constitutional interpretation. *** Most of our constitution . . . was written broadly, and for good reasons. Indeed, the Wisconsin Constitution—now the sixth oldest in the nation—came about only after a prior, more specific proposed constitution was rejected by the people, largely because it tried to settle too many then-contemporary policy disputes. No doubt part of the reason our constitution has endured so long is because its breadth gave the people of our state the room needed to adapt to new problems. The breadth and adaptability of our constitution is evident in its many clauses declaring broad principles in general terms. The Wisconsin Constitution contains, for example, a guarantee of "a certain remedy in the law for all injuries, or wrongs," a prohibition against "control of, or interference with, the rights of conscience," and a pronouncement that "[t]he blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles." And our framers recognized that by writing these provisions broadly it would be up to future judges and interpreters to decide what they meant. As the state constitutional convention's president put it, the framers of our constitution sought to declare "those great principles which characterize the age in which we live, and which, under the protection of Heaven, will—nay, must—guard the honor, promote the prosperity, and secure the permanent welfare of our beloved country." They weren't trying to write specific rules settling difficult questions for all time. Instead, they were—like the framers of the United States Constitution—trying to "provide a political platform wide enough to allow for considerable latitude within which future generations could make their own decisions." Simply observing, as the majority does, that the constitution was written down does not demonstrate that originalism is the best way to make those decisions. *** Dallet then describes why the search for original meaning is “almost always fruitless”: What these limited sources (on Wisconsin's two constitutional conventions) reveal is not one single, universally accepted original public meaning of the Wisconsin Constitution. Instead, they demonstrate that the questions that consumed the drafters of the Wisconsin Constitution—whether the document would retain the failed 1846 constitution's provisions prohibiting banking, guaranteeing property rights to married women, and creating an elected judiciary, for example—tell us nothing about how to resolve contemporary cases. They also show that, when it came to the document's more open-ended provisions, the drafters left little evidence of what they thought these clauses meant. The same is true of many of the constitution's more specific provisions like the one about how to amend the constitution at issue in this case, Article XII, Section 1. As the majority acknowledges, there is no evidence from the constitutional convention or ratification debates that sheds any light on its meaning. *** . . . . (A)s the preceding discussion demonstrates, what originalism requires judges to identify—a single, objective original public meaning—is something we cannot know. And even if we do somehow identify one original public meaning, like the majority's abstract insight about Article XII, Section 1, it tells us nothing about how to resolve real cases. Without the objective answers it promises, originalism is no constraint on judges at all. Constitutional interpretation is never as simple as just "apply[ing] the constitution as it is written." That is because the constitution forces us to choose between competing interests all the time, and value-neutral judging is therefore impossible. Take, for example, Article I, Section 11 of the Wisconsin Constitution, which provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated." What is reasonable when it comes to drone surveillance or searching cell phones isn't dictated by any original understanding. There could never be an "original understanding" on these topics because they were unimaginable at the time our constitution was written. Moreover, evaluating whether a search is "unreasonable" always requires a value judgment, balancing the interests of the government against an invasion of privacy. So too in deciding what it means for a constitutional amendment to be "submit[ted] to the people." Finally, even if the original public meaning of many provisions of the Wisconsin Constitution were discoverable, applying it would lead to intolerable results. As one scholar said, "[t]he only kind of originalism that is reasonably determinate leads to conclusions that practically no one accepts." For example, Article I, Section 9 of the Wisconsin Constitution provides that "[e]very person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws." There is no escaping that, as the use of male pronouns demonstrates, the original public meaning of this provision and many others in our original constitution didn't include women. The delegates to the constitutional convention were all men, and as mentioned previously, part of the reason the proposed 1846 constitution was rejected was because it guaranteed a modicum of autonomy to women through its provisions about married women owning property. Yet we would never say today that, because the original public meaning of this provision didn't include women, women are therefore not entitled to a "remedy in the laws." And that's not the only example. Take Article I, Section 18's guarantee of "[t]he right of every person to worship Almighty God according to the dictates of conscience." At the 1847-48 convention, a motion to strike the words "Almighty God" on the grounds that the people had the right to worship whomever or whatever they wanted was defeated as "too radical a doctrine for our God- fearing forefathers." Although this supports the conclusion that the original public meaning of Article I, Section 18's guarantee of religious liberty was inapplicable to those who didn't share our founders' belief in "Almighty God," even those who claim to be originalists would not reach such a repellent conclusion today. *** The majority disagrees with WJI's view that Ekern imposed a constitutional requirement that ballot language contain "every essential" of a proposed amendment. According to the majority, "the relevant constitutional question is whether the proposed amendment was, at a basic level, submitted to the people for ratification." And the majority concludes that the only way in which an amendment could flunk that test is "in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment." Because the ballot language about Marsy's Law does not fit within that narrow category, the majority concludes that the amendment was validly adopted. Before getting to why I think the majority's proposed rule is too narrow, it's important to note one thing. Despite the majority's purported allegiance to originalism, this analysis is anything but originalist. The text of Article XII, Section 1 doesn't tell us what it means for an amendment to be "submit[ted] to the people." Indeed, it's plausible to read the text as allowing the legislature to do whatever it wants when it comes to describing constitutional amendments on the ballot. And knowing that early legislatures used to provide no descriptions on the ballot at all doesn't help us answer whether an amendment submitted with a misleading or incomplete description is submitted to the people either. *** The problem is that the new rule the majority derives from Ekern and our other cases regarding the submission-to-the-people requirement is still too narrow. Although the majority is certainly correct that a "fundamentally counterfactual" ballot question doesn't comply with the constitution, that's not the only way to violate the requirement that an amendment be submitted to the people. An amendment that is described in a way that is so incomplete as to be misleading is also not submitted to the people. For example, if the legislature had described Marsy's Law on the ballot as merely "an amendment to expand the definition of 'victim' contained in Article I, § 9m of the Constitution," that description wouldn't violate the majority's rule. This statement is accurate, it's not fundamentally counterfactual. But the description would also be misleading because Marsy's Law made many more significant changes to Article I, Section 9m. And if the people voted to adopt the amendment in reliance on such a description, it can't be said that all of those more significant changes were submitted to the people for ratification. This, I think, is what Ekern was referring to when it said the ballot must describe "every essential" of the proposed amendment. Thus, I conclude that a ballot description, if the legislature chooses to provide one, must accurately summarize the significant changes the proposed amendment would make to the Constitution. I acknowledge, of course, that this rule doesn't always provide clear answers. Because a summary that appears on the ballot will always be incomplete and isn't meant to take the place of the text of a proposed amendment, judgment will always be required. But that is okay. We trust judges to make judgment calls all the time, and doing so in this context is the only way to preserve both the legislature's authority to specify the manner in which amendments are to be submitted to the people and the right of the people to decide whether to change the constitution. Indeed, the majority's approach also requires judgment to determine what questions are "fundamentally counterfactual." As the use of the word "fundamentally" implies, superficially counterfactual ballot questions would pass the majority's test. But the majority offers no principled way of distinguishing between superficially counterfactual and "fundamentally" counterfactual ballot questions. In this case, the legislature's summary was sufficient and Marsy's Law was thus validly submitted to the people. Although WJI points to some of the amendment's particulars that weren't described specifically in the ballot language, as I said before, a summary always leaves some details out. The legislature's description of Marsy's Law is accurate, and the expanded definition of "victim," and arguable changes to the state constitutional rights of the accused and this court's jurisdiction weren't so significant that they needed to be described on the ballot. In short, the legislature gave voters the gist of Marsy's Law, and in an accurate way, and that is all that is required. Accordingly, I respectfully concur. |
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