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Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. The Case: Kaul v. Wisconsin State Legislature  Hagedorn Majority: Justice Brian Hagedorn (18 pages) for a unanimous court. Upshot This is a constitutional challenge to a law that prohibits the Department of Justice (DOJ) from settling most civil cases unless and until it receives the approval of the Joint Finance Committee (JFC). . . . *** As this court has explained over a series of cases, the Legislature’s constitutional responsibilities consist in making the law. Enforcing the law is a task vested in the executive branch. The general principle we announced in Service Employees International Union, Local 1 v. Vos, (SEIU) remains. While the Legislature can by law empower DOJ to represent the state in litigation and prescribe the limits and ends of that power, it generally cannot give itself the power to control litigation the statutes empower DOJ to undertake. Unlike in SEIU, the Legislature has not identified any constitutional role for itself in these two categories of cases. We hold that settling these two categories of cases is within the core powers of the executive branch, and the statutory requirement to obtain JFC’s approval prior to settling these cases violates the Wisconsin Constitution’s separation of powers. We reverse the decision of the court of appeals holding otherwise. Background The Department of Justice represents the state of Wisconsin in legal matters. It is responsible for prosecuting or defending all criminal and civil cases where the state, a state agency, or a state employee is involved, or where the state or the people of Wisconsin may have an interest. This includes civil actions DOJ prosecutes to enforce state laws and those DOJ pursues at the direction of an executive agency regarding programs it administers. DOJ possesses this power by statute, having no inherent authority to prosecute cases on its own. Until 2017, DOJ could settle any civil suit it pursued without legislative approval. But in 2018, after a new Governor and Attorney General were elected, but before they assumed office, the Legislature amended the statute governing DOJ’s ability to settle cases . . . , which now provides: "Any civil action prosecuted by the department by direction of any officer, department, board, or commission, or any civil action prosecuted by the department on the initiative of the attorney general, or at the request of any individual may be compromised or discontinued with the approval of an intervenor under s. 803.09(2m) or, if there is no intervenor, by submission of a proposed plan to the joint committee on finance for the approval of the committee. The compromise or discontinuance may occur only if the joint committee on finance approves the proposed plan." Thus, DOJ can no longer settle civil cases unless and until a legislative committee approves DOJ’s settlement plan. Shortly after the statute was amended, labor unions and individual taxpayers argued the statute was facially unconstitutional. In that case, we held that this provision was not unconstitutional in all its applications. We left open, however, the possibility that individual applications of the law or categories of applications might violate the constitution. And that is the kind of challenge we have here. About a year after SEIU, Attorney General Josh Kaul, DOJ, Governor Evers, and the Secretary of the Department of Administration filed this case in Dane County Circuit Court (for ease, we will refer to the plaintiffs collectively as “DOJ”). Having lost the facial challenge in SEIU, DOJ argued that the settlement statute was unconstitutional as to two categories of civil cases. Specifically, DOJ challenged the statute’s constitutionality as applied to civil enforcement actions and actions state agencies request DOJ to pursue. Settlement of these cases, DOJ argued, constitutes core executive power into which the legislative branch cannot interfere. The circuit court agreed with DOJ and granted its motions for summary judgment as to both categories. The court of appeals reversed. It concluded that the power to settle these types of cases is a shared power and legislative sign off on settlements was not an undue burden on executive powers. DOJ then petitioned this court for review, which we granted. WJI covered the District 2 Court of Appeals decision here in December 2024. Guts The quintessential core power belonging to the executive branch is the power to “take care that the laws be faithfully executed.” At the time of Wisconsin’s founding, to “execute” meant to “make effectual or operative” and “to carry into effect.” We have explained that this means once the Legislature has passed a law embodying its policy choices, it is the province of the executive branch to determine what the law requires and how to faithfully apply it. Part of that faithful application includes following any instructions for executing the law the Legislature prescribes by statute, and exercising discretion when the Legislature does not, so as to carry into effect the Legislature’s policy choices. Thus, it is within the Legislature’s domain to decide what the law shall be and to confer authority and discretion on the executive branch, which then must execute it “under and in pursuance of the law.” As one of three constitutional administrative officers, the Attorney General and the Department of Justice through which he acts are members of the executive branch of government. The constitution states that the Attorney General’s powers and duties “shall be prescribed by law.” In SEIU, the Legislature argued that because the Attorney General only possessed powers prescribed by statute, the settlement statute was constitutional because the Attorney General has no inherent constitutional authority to execute the law himself. Thus, the Legislature argued that any power the Attorney General exercised was subject to legislative modification and, therefore, could not violate the separation of powers. We disagreed. We explained that the Attorney General exercises executive authority when carrying out his statutory duties. And while the Legislature could give powers to the Attorney General or take them away, that did not mean the Legislature could, consistent with the constitution, grant to itself executive power in the first instance. Said another way, just because the Legislature establishes the scope of the Attorney General’s litigation powers does not mean that it can assume the execution of those powers itself. *** The Attorney General and DOJ are tasked with executing numerous statutes detailing when and how they are to bring litigation. Civil enforcement actions, the first category DOJ raises here, are civil actions prosecuted by the Attorney General to enforce state laws. Such actions include laws enforcing environmental, consumer protection, financial regulation, and medical assistance programs. State agencies typically refer these cases to DOJ for prosecution, but DOJ may also pursue some on its own initiative. In these actions, DOJ represents the state acting as the plaintiff, and any relief—civil forfeiture, injunctive relief, recovery costs of enforcement, or restitution—is obtained on behalf of the state. In the second category of cases, the Attorney General and DOJ are statutorily tasked with prosecuting certain cases at the request of “the head of any department of the state government.” These includes pursuing breach of contract cases for contracts “in which the state is interested,” and “all actions, civil or criminal, relating to any matter connected” with any state department. Examples include civil actions to enforce contracts executive agencies enter into or to pursue compensation in tort for damages to state property. Like those in the first category, these are cases where the state acts as plaintiff and where it will not be required to pay money to a defendant in a settlement. Some of the statutes authorizing these suits give the Attorney General broader discretion about when and how to take action, while others circumscribe that discretion by providing specific guidelines about prosecution and recoveries. But in either event, it falls within the power of the Attorney General to effectuate the Legislature’s statutorily enacted policy decisions with regard to these suits. Thus, DOJ’s litigation in these categories of cases is, rather straightforwardly, the execution of laws enacted by the Legislature. We said as much in SEIU, calling litigation on behalf of the state “predominately an executive function.” The Legislature agrees that litigation is at least in part an executive power, arguing at most that the power is shared with the Legislature rather than exclusively executive. And the idea that bringing lawsuits to execute or enforce the law constitutes executive power is uncontroversial. The United States Supreme Court has said that lawsuits are “the ultimate remedy for a breach of the law,” and, as such, it is constitutionally the executive branch’s role, not the Legislature’s, to pursue that remedy so as to faithfully enforce the law. Other state high courts have likewise found the power for a government agency to bring civil suits to be quintessential executive power for similar reasons. Just as the pursuit of these claims is unequivocally an executive function, so is the settlement of them. When the Legislature gives authority to the Attorney General to pursue these claims, it necessarily confers discretion on how to pursue the claims to completion, through settlement or otherwise. As we have said, “[i]n executing the law, the executive branch must make decisions about how to enforce and effectuate the laws.” In the context of the Attorney General’s authority to pursue certain claims, this means he is given the discretion to decide how to best execute the Legislature’s statutory mandates and policy choices, including whether those ends are best served through a settlement. *** Having established that the executive has the constitutional authority to settle lawsuits in these types of cases, the key question before us is whether the Legislature also possesses this constitutional authority in at least some suits within the two categories. The Legislature offers several arguments that it does, none of which succeed. *** The court rejects the Legislature's argument that it has an institutional interest in revenue generated from settlement agreements in the two categories of cases at issue. The Legislature likewise argues that it has an institutional interest in settlements within these categories of cases because they could implicate public policy, in particular where the Attorney General could require as a term of a settlement that funds be paid to certain agencies or organizations that the Legislature may disagree with. *** Executive action within the scope of statutory authority and employing the discretion inherent in execution of the law will often have a public policy impact. It is the Legislature that has given this authority and discretion in the first place, including any limitations on how settlements are to be spent. When the Attorney General, therefore, decides where settlement proceeds are to be directed, he is acting within the scope of the authority the Legislature gave him. If the Legislature is dissatisfied with the discretion it left to the Attorney General, it may amend the laws accordingly. In fact, the Legislature has done so with respect to some of the suits within the two categories in this case, instructing that any funds recovered go into the general treasury. However, the Legislature may not step into the shoes of the executive branch or otherwise control executive decisions made within the statutory authority simply because exercising that authority has policy implications. It is the “text of the statutes” by which the Legislature announces its policy decisions and how they may be achieved. *** The Legislature may prescribe the scope of the Attorney General’s authority and discretion in the categories of civil suits challenged today. But to do so, it must pass a statute. It cannot assume for itself the power to execute a law it wrote. The challenged statute permits exactly this. The settlement approval process allows a committee of the Legislature to control how the executive exercises its lawfully given statutory authority. While that may be permissible in the realm of shared powers, it is impermissible in the realm of core powers. As the Legislature has failed to demonstrate that these types of cases implicate an institutional interest granting the Legislature a seat at the table, the powers at issue are core executive powers. Accordingly, there is no constitutional justification for requiring JFC sign-off on settlement agreements within these categories of cases. The statute as applied to these cases violates the Wisconsin Constitution’s separation of powers. 
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Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized.  Karofsky The case: LeMieux v. Evers Majority: Justice Jill Karofsky (12 pages), joined by Justice Ann Walsh Bradley, Rebecca Dallet (except for five paragraphs), and Janet Protasiewicz Concurrence: Dallet (4 pages) Dissent: Justice Brian Hagedorn (20 pages), joined by Chief Justice Annete Ziegler and Justice Rebecca Grassl Bradley Upshot We uphold the 2023 partial vetoes, and in doing so we are acutely aware that a 400-year modification is both significant and attention-grabbing. However, our constitution does not limit the governor's partial veto power based on how much or how little the partial vetoes change policy, even when that change is considerable. As our precedent recognizes, the governor's constitutionally-vested, quasi-legislative role defeats "any separation of powers-type argument thta the governor cannot affirmatively legislate by the use of the partial veto power." Indeed, the governor's reliance on his partial veto authority to potentially increase taxes without legislative approval is neither new nor unique in our partial veto jurisprudence. Background The Wisconsin Constitution provides that every two years the legislature is to pass a biennial budget. This budget establishes the level of revenue to be derived from taxes and other sources, as well as authorized expenditures. The process begins with the governor presenting the legislature with an executive budget bill. The executive budget bill then proceeds through the legislature’s multi-step review and report process involving the joint committee on finance and legislative fiscal bureau. The legislature then submits its bill to the governor. Before signing the bill into law, the governor may partially veto parts of the bill. Subsequently, the legislature may vote to override the governor’s partial vetoes by a supermajority. This process was followed for the 2023–25 biennial budget. First, the governor presented his 2023–25 executive biennial budget bill, which included three educational revenue limit increases . . . . Next the legislature reviewed the governor’s proposed budget bill and made modifications. Senate Bill 70 provided for a $325 per pupil revenue limit increase for both 2023–24 and 2024–25, without a subsequent inflationary index. Then the governor exercised his partial veto power, deleting portions of 2023 Senate Bill 70. As related to this matter, the governor deleted entire words and some numbers . . . The result . . . authorized a $325 per pupil revenue limit increase from 2023–2425, extending the provision by 400 additional years. . . . The senate subsequently voted to override the partial vetoes, but the assembly declined to vote on the override. Consequently, the effort to override the governor’s vetoes failed. The law went into effect and this original action followed. Per Hagedorn, the plaintiffs are two taxpayers. Guts In challenging the 2023 partial vetoes, petitioners do not ask us to overrule our precedent. Petitioners agree that the partial vetoes at issue satisfy the principles we have applied in our previous cases. Instead, petitioners bring two novel challenges. First, they contend that the 2023 partial vetoes violate the state constitution because the governor did not veto the bill “in part” when he extended a duration of time, as 402 years is not part of two years. Second, petitioners maintain that the 2023 partial vetoes violate the constitution because that provision prohibits the governor from striking digits to create new numbers. *** Over the past 90 years, our precedent has established four principles that we have applied to “deletion vetoes,” the traditional partial veto in which the governor strikes text: Deletion veto principles 1. The governor’s deletion vetoes are constitutional as long as the remaining text of the bill constitutes a “complete, entire, and workable law.” 2. The governor may exercise deletion vetoes only on parts of bills containing appropriations within their four corners. 3. The governor’s deletion vetoes may not result in a law that is “totally new, unrelated or non-germane” to the original bill. 4. The governor may strike “words, letters, or numbers.” But “the governor may not create a new word by rejecting individual letters in the words of the enrolled bill.” Nor may the governor “create a new sentence by combining parts of 2 or more sentences of the enrolled bill.” Separate from deletion vetoes, there is one scenario in which the governor may exercise “write-in” vetoes by striking certain text and then writing in different text: Write-in veto principle The governor may strike an appropriation amount and write in a smaller appropriation amount. *** Karofsky writes that Evers' partial veto at issue in this case complies with the four deletion veto principles. The following three paragraphs were not joined by Dallet. Having addressed all four deletion veto principles, we turn to petitioners' request to apply the . . . write-in veto principle here. Petitioners ask that we invalidate the 2023 partial vetoes because under a prior case, the 402-duration created by these partial vetoes is not "less than" and thus not "part" of the legislatively-approved two-year duration. Even though 402 years are clearly more than two, the prior case does not apply here. In a prior case we evaluated the unprecedented scenario in which the governor decreased an appropriation amount from $350,000 to $250,000 by deleting “350,000” and writing in “250,000.” We determined that this write-in partial veto was constitutional under the very narrow facts presented in that case. . . . We concluded that because the write-in veto was only to an appropriation amount, and $250,000 is less than $350,000, $250,000 was part of $350,000 for purposes of the constitution. *** Here, we are tasked with evaluating a change in years, not appropriation amounts, which plainly falls outside a prior case’s holding and analytical principles. Petitioners fail to reckon with that case’s explicit boundary and do not attempt to equate appropriations with durations. As significantly, petitioners do not ask that we overrule or revisit our precedent. Therefore, we do not extend the write-in veto principle to the 2023 partial vetoes. *** Joined again by Dallet. Turning to whether the governor impermissibly deleted digits, the plain meaning of “word” does not include numbers written out using digits, and the plain meaning of “letters” does not include digits. By way of example, all agree with petitioners that the number “ten” is a word written with letters. However, when we write the number “10” using digits, we have used no letters. Simply put, letters and digits are not interchangeable for purposes of the pertinent constitutional provision. This has not demonstrably changed since 1990 when this provision passed. *** The bottom line is that the partial vetoes were within the bounds of the constitution. But the legislature is not without recourse. It has multiple options at its disposal, including: Future budget bills: Unlike an appropriation amount typically spent during the biennium in which the funds were appropriated, the 2023 partial vetoes affect revenue limits 400 years into the future. Accordingly, the legislature may address those partial vetoes during the 2025–27 biennial budget process, or in a subsequent biennial budget. Constitutional amendment: The legislature has the power to introduce a constitutional amendment. In the past 35 years, the people of Wisconsin have twice amended the constitution to limit the governor’s partial veto power. . . . Legislative drafting: Legislators may draft bills separate from appropriation bills to avoid the governor’s partial veto. And, legislators may anticipate the governor’s use of her or his power when crafting appropriation bills.  Dallet Concurring I agree with the majority/lead opinion’s conclusion that the partial vetoes at issue in this case do not violate . . . the Wisconsin Constitution. I write separately, however, because I have a different understanding of Petitioners’ argument that those partial vetoes are unconstitutional . . . and why that argument should be rejected. Accordingly, I join all but five paragraphs of the majority opinion. The constitution authorizes the governor to approve appropriation bills “in whole or in part . . . .” Petitioners argue that the partial vetoes at issue here exceeded the governor’s authority . . . because he did not approve “part” of the original bill. They cite to two prior cases for the assertion that the ordinary meaning of “part,” at least when applied to numbers, is “something less than a whole.” They claim that applying that definition in this case requires us to determine whether, as a matter of “substance rather than form,” the governor’s partial vetoes approved “something less than [the] whole” of what the legislature passed. And because the substantive effect of those vetoes was to increase the two-year duration the legislature passed to a 402-year duration it never contemplated, the governor’s partial vetoes did not approve something less than the whole of what the legislature passed. Petitioners’ argument has some support in the reasoning of a prior case. Indeed, one reason we cited for upholding the veto at issue in that case—crossing out a $350,000 appropriation and writing in $250,000—was that the result of the veto was substantively “part” of what the legislature originally passed. As we said then, $250,000 is “part” of $350,000 because it is “something less than” $350,000. That case’s use of this reasoning, Petitioners contend, demonstrates that there is a threshold requirement, imposed on all partial vetoes by the constitution, that the result of the veto must be substantively “part” of the original bill. Petitioners’ substantive-part analysis should be rejected, however, because it cannot be squared with the rest of our cases interpreting the constitution, none of which Petitioners ask us to overturn. We have long held that the only test . . . for whether a veto approved “part” of a bill is simply whether the veto results in a complete and workable law. Thus while Petitioners argue that their substantive-part analysis is separate from, and in addition to, the “complete and workable law” requirement, our case law in fact holds that if the veto results in a “complete and workable law,” then the veto approved the original bill “in part.” But even more importantly, our cases have repeatedly emphasized that a partial veto may affirmatively change the policy of the original bill. As we said in a 1976 case, “the constitutional requisites . . . fully anticipate that the governor’s action may alter the policy as written in the bill sent to the governor by the legislature.” In other words, the governor may, through a partial veto, change the bill’s substance. To date, the only limitation we have placed on the governor’s ability change the substance of a bill via partial veto is that a partial veto may not “result in the creation of totally new, unrelated or non-germane provisions.” While this limitation does require the substance of the post-veto text to be related in some way to the substance of the pre- veto text, it does not require the post-veto substance to be “part” of the pre-veto substance. *** In sum, I reject Petitioners’ argument that the constitution requires the result of a partial veto to be substantively “part” of what the legislature originally passed because it is incompatible with our long- standing approach to the constitutionality of partial vetoes . . . . And perhaps for the same reasons, even the dissent does not adopt Petitioners’ position. Instead, the dissent argues that we should revisit all of our case law under these provisions of the constitution, at least since 1935. Although I am open to revisiting our . . . jurisprudence, this case is not a “clear opportunity” to do so. Petitioners do not ask us to overturn any of our prior decisions, let alone reimagine completely our approach . . . . Accordingly, because upholding the partial vetoes in this case is consistent with our precedent, I respectfully concur.  Hagedorn Dissent
How does a bill become a law? According to the majority, one option looks like this: The legislature passes a bill in both houses and sends it to the governor. The governor then takes the collection of letters, numbers, and punctuation marks he receives from the legislature, crosses out whatever he pleases, and—presto!—out comes a new law never considered or passed by the legislature at all. And there you have it—a governor who can propose and enact law all on his own. This fantastical state of affairs did not appear all at once. The people of Wisconsin gave the governor the power to partially veto appropriation bills 95 years ago. But as governors pushed the boundaries over the last half-century, this court largely responded by throwing up its hands. And now, what the constitution calls the power to “approve[] in whole or in part” has transformed into the monarchical authority of one person to create brand new laws from scratch. Instead of reading what the bills actually say, and construing the partial veto power accordingly, this court treats bills presented to the governor as simply a set of alphanumeric ingredients from which the governor can cook up whatever he pleases. One might scoff at the silliness of it all, but this is no laughing matter. The decision today cannot be justified under any reasonable reading of the Wisconsin Constitution; the majority does not suggest otherwise. Yet when presented with a clear opportunity in this case to reboot our mangled jurisprudence, the majority responds by blessing this constitutional monstrosity, all the while pretending its hands are tied. The cases the majority relies on make a mockery of our constitutional order. This is a mess of this court’s making, and it is long past time for us to fix it. *** Our founders were intentional about placing the legislative power in the hands of the legislature. They designed the Wisconsin legislature to be the institution most animated by, representative of, and responsive to the people. This representative design was meant to “unit[e] a disparate group of people into one society” by providing a collective “mechanism for bringing together, negotiating, and resolving the different interests.” Following the pattern of the federal constitution, the Wisconsin legislature is the institution “by which the body of the people can act; the only way in which their opinions can be known and collected; the only means by which their wills can be united, and their strength exerted.” In other words, by vesting the power to legislate in the legislature, the Wisconsin Constitution situates the power to make laws in “the collective wisdom of the people and their representatives.” *** The veto power is an aberration from and exception to the default constitutional structure. A veto gives the governor a powerful voice in whether a legislative proposal becomes law. This function is not naturally within the power to execute the law. Rather, it serves as a limit on the legislature’s vested power to make law. Alexander Hamilton similarly described the president’s veto in Federalist No. 73 as a “qualified negative” meant to check legislative power. The delegates to the Wisconsin Constitutional Convention of 1846 were clear that “the governor’s powers should be limited and the primary lawmaking power should reside with the legislature,” while acknowledging a narrow exception for the gubernatorial veto. In that way, the “veto is simply one of the instances in which our framers broke off a small piece of power that naturally belongs in one branch and put it in another.” But this quasi-legislative power to veto is still at root the power to influence legislation by subtraction, not addition. All laws—policy proposals that have been formed into legal commands and instructions in a bill—must come from the legislature. And while the governor may reject bills presented to him, he may not affirmatively design them on his own. This is Wisconsin’s constitutional design. *** Hagedorn then discusses how the supreme court strayed in prior caselaw. So how should the court handle the 402-year “veto”? By doing what the majority suggests, but never does: “’focus on the constitutional text, reading it reasonably, in context, and with a view of the provision’s place within the constitutional structure.’” Once we do so, it is clear that the Governor’s “veto” in this case is not a veto at all, but merely gubernatorial lawmaking that is repugnant to our constitutional structure. As we have explained, a “veto” is a power of negation. It allows the governor to do nothing more than to reject laws that the legislature has proposed. The fundamental nature of a veto does not change just because the governor can veto “part” rather than all of an appropriation bill. The partial veto simply means that the governor can now reject policy proposals contained within an appropriation bill instead of being forced to reject it in its entirety. As a power to “reject,” it may assuredly change aspects of the legislature’s collection of policy prescriptions; the legislature may get most of its proposals, but not all of them, enacted into law. But what the partial veto clause does not do is establish a second lawmaking branch of government. The governor has no constitutional power to create new proposals that did not originate with the legislature or go through the constitution’s lawmaking process. An appropriations bill is not merely “a potpourri of individual letters, an alphabet soup if you will,” as the majority assumes. It contains draft statutes reflecting specific policies that have been considered and voted on by the legislature. This is what the constitution commands with all laws. So when the governor rejects part of an appropriations bill, the policy proposals that remain after the governor exercises his partial veto must still have been created and approved by the legislature in the first instance. Once again, we cannot lose sight of the constitution’s structure. The legislative power is vested in the legislature. And the constitutional amendment giving the governor power to partially veto appropriation bills did not change this. Here, when the bill left the legislature’s hands, it permitted school districts to exceed their base tax revenue for two years, the 2023–24 and 2024–25 school years. By striking out numbers, words, commas, and some hyphens, the governor rewrote the bill to say that districts could increase their revenue by those amounts from 2023 through 2425. The legislature never proposed extending the increase through 2425. This simply was not a policy proposal considered and voted on by both houses of the legislature. This is not a policy that was presented to the governor for approval. And contra the majority, we are permitted to read the words in the bill and make sense of them, not just consider the bill an alphabet soup of options. Thus, after the governor exercised his “veto,” there was something in the bill that did not originate from the legislature, was never subject to lawmaking procedures, and was not presented to the governor. This is plainly unconstitutional. It is true that the petitioners here do not explicitly ask us to . . . formally roll back the missteps of our prior cases. But where the governor’s actions are so out of step with the constitutional order, and where we are asked to apply the constitution, “the principle of stare decisis should yield to a result consistent with the plain meaning of the words within the amendment.” Instead of treating the fractured legal framework with another quick fix of judicial epoxy, it is time to raze it to the ground. The SCOW docket: Arrest-record discrimination includes terminations based on municipal charges4/18/2025 Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. Dallet The Case: Oconomowoc Area School District v. Gregory L. Cota Majority: Justice Rebecca Frank Dallet (15 pages), joined by Justices Ann Walsh Bradley, Brian Hagedorn, Jill Karofsky, and Janet Protasiewicz. Concurrence: Protasiewicz (6 pages) Dissent: Chief Justice Annette Kingsland Ziegler (3 pages) Dissent: Justice Rebecca Grassl Bradley (7 pages), joined by Ziegler Upshot This case raises two questions. First, does the Wisconsin Fair Employment Act’s definition of arrest record—specifically the phrase “any . . . other offense”—include non-criminal offenses, like municipal theft? Second, if so, did the Labor and Industry Review Commission (LIRC) correctly conclude that the Oconomowoc Area School District engaged in arrest-record discrimination when it terminated the Cotas? We answer “yes” to both questions and thus reverse the court of appeals’ contrary decision. Background Gregory and Jeffrey Cota were members of the District’s grounds crew and, as part of their duties, recycled scrap metal for the District. The Cotas, along with coworker Garret Loehrer, brought scrap metal to a local processor, which paid with cash or checks made out to “cash.” The person who received the money from the processor would give it to Gregory, who would then pass it along to his supervisor, Matt Newman. Between 2012 and 2014, the Cotas made multiple complaints about Loehrer’s work performance to supervisors. . . . On one such occasion, Jeffrey Cota asked a supervisor if Loehrer had turned in money from a recent scrap-metal delivery. The money had been turned in, but the supervisor reported the inquiry to Loehrer. In response, Loehrer accused the Cotas of retaining some of the District’s scrap money. Loehrer asserted that, approximately two years prior, he and the Cotas had delivered scrap metal to the processor but had kept the payment and split the money among themselves. The District’s Director of Human Resources, Pam Casey, began a formal investigation into the allegations. Casey interviewed employees and reviewed documents related to the scrap-metal transactions. She determined that $5,683.81 originally paid to Loehrer and the Cotas had not been received by the District. But conflicting accounts given by Loehrer, the Cotas, and other employees prevented Casey from determining who was responsible for the missing funds. . . . Accordingly, Casey recommended turning over the investigation to local police, explaining that “[e]mployment-related disciplinary decisions can be better made following the conclusion of any criminal investigation.” The District took no other investigatory action after turning the matter over to the police. The Town of Oconomowoc Police Department opened its own investigation into the missing funds. . . . Despite investigating for 11 months, however, the police did not discover any new information related to the Cotas. Even so, the Cotas were cited for municipal theft. The investigating detective explained in her report that she based the citations exclusively on Loehrer’s allegation that the Cotas had split scrap money with him on one occasion—the same allegation that had given rise to the District’s investigation. The detective’s report further stated that she was unable to prove any additional allegations against the Cotas. Approximately one year after the Cotas were cited for theft, the assistant city attorney informed the District that he believed he could obtain convictions and that he also believed the case could be settled. The Cotas did not agree to settle. The next day, the District terminated the Cotas’ employment. The District sent the Cotas termination letters, drafted by Casey, stating that the District had “learned” that the Cotas “were, in fact, guilty of theft of funds from the School District” and that they had lied about this during the District’s internal investigation. The municipal citations against the Cotas were ultimately dismissed. The Cotas never pleaded guilty to or were convicted of municipal theft. The Cotas filed claims of arrest-record discrimination with the Department of Workforce Development, Equal Rights Division (DWD). Following an evidentiary hearing, an administrative law judge found that the Cotas failed to establish that the District had unlawfully discriminated against them. The Cotas appealed to LIRC, which reversed, concluding that the District terminated the Cotas’ employment because of their arrest records in violation of the Act. The circuit court affirmed LIRC's decision, but the court of appeals disagreed and reversed. Guts An employer generally may not terminate an employee because of the employee’s arrest record. "Arrest record" is defined as including "information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority." To understand the parties’ arguments, we begin by explaining the distinction between criminal and non-criminal offenses. Under Wisconsin law, offenses punishable by fine, imprisonment, or both are crimes, while offenses punishable only by a forfeiture are non-criminal. Non-criminal offenses range from minor infractions, like failing to use a turn signal, to more serious violations, like a first operating-while-intoxicated (OWI) offense. Additionally, in Wisconsin, all crimes are classified as either felonies or misdemeanors. Some other jurisdictions, however, do not classify crimes in this way. The District argues that the phrase “any . . . other offense” in the arrest record definition refers only to criminal offenses under the laws of jurisdictions that do not classify crimes as either felonies or misdemeanors. Under this interpretation, the Cotas are not protected by the Act, since they were cited for a non-criminal offense. By contrast, the Cotas and LIRC assert that “any . . . other offense” includes both criminal offenses from jurisdictions that do not classify crimes as either felonies or misdemeanors and non-criminal offenses under Wisconsin law. We agree with the Cotas and LIRC. The ordinary meaning of the phrase “any . . . other offense” includes violations of both criminal and non-criminal laws. Indeed, this is how the term “offense” is consistently used throughout our statutes, and nothing in the structure or remaining text of the statute at issue suggests a narrower meaning. Furthermore, interpreting “any . . . other offense” to include non-criminal offenses serves the Act’s express statutory purpose of “protect[ing] by law the rights of all individuals to obtain gainful employment and to enjoy privileges free from employment discrimination because of . . . arrest record. . . .” Finally, the exceptions to the Act’s general prohibition against arrest-record discrimination provide additional support for our interpretation. *** The District focuses narrowly on the exceptions applicable only to criminal charges, arguing that we should infer from them that the general prohibition on arrest-record discrimination similarly applies only to criminal offenses. But we must read statutes in context, “not in isolation but as part of a whole. . . .” Taken together, these exceptions demonstrate that “any . . . other offense” includes both criminal and non-criminal offenses. . . . *** Because we hold that “any . . . other offense” in the statute at issue includes non-criminal offenses, we turn to the second issue before us: whether LIRC correctly concluded that the District terminated the Cotas because of their arrest records, in violation of the Act. The answer to this question turns on the District’s motivation for terminating the Cotas, which is an issue of fact. *** Substantial evidence supports LIRC’s conclusion that the District was not motivated to act by its internal investigation, despite Casey’s testimony before DWD that she formed a personal belief in the Cotas’ guilt during the investigation. Indeed, Casey’s report summarizing the results of the investigation stated that the District was not able to determine who was responsible due to conflicting allegations, and Casey testified before DWD that those same conflicting allegations prevented her from making final employment decisions at the close of the investigation. When referring the matter to the police for further investigation, the District’s attorney told the investigator that the District could not conclude who was responsible, and Casey testified before DWD that this was a true statement. Finally, Casey also testified that while she was suspicious of the Cotas during the internal investigation, she was not suspicious enough to fire them. Substantial evidence likewise supports LIRC’s conclusion that the District’s decision to terminate the Cotas was motivated by arrest-record information. Before DWD, Casey testified that three new pieces of information came to her attention between the close of her internal investigation—when she was not ready to fire the Cotas—and her decision to fire them nearly two years later. That new information included: (1) that the Cotas were cited for municipal theft, (2) that the assistant city attorney told Casey he believed he could convict the Cotas and (3) that the assistant city attorney told Casey he anticipated reaching a settlement with the Cotas that included restitution. And Casey admitted that these three pieces of information caused her to terminate the Cotas. All three are components of the Cotas’ arrest records. Accordingly, substantial evidence supports LIRC’s conclusion that the District was motivated by arrest-record information when it terminated the Cotas. The District nevertheless argues that it is protected by a legal defense recognized in a prior case because its decision to terminate the Cotas was motivated at least in part by Casey’s belief in the Cotas’ guilt formed during the internal investigation. According to the District, caselaw permits employers to terminate employees because of their arrest records as long as the employer also concludes from an internal investigation that the employee engaged in unacceptable conduct. In other words, the District argues that as long as it did not terminate the Cotas exclusively because of their arrest records, it did not violate the Act. We reject this argument for two reasons. First, the District mischaracterizes the holding of the cited case, in which an employer effectively discharged an employee after the employee admitted, in response to a question posed by the employer, that he had committed an offense. . . . The case holds simply that an employer who does not rely on arrest-record information when making a discharge decision does not discriminate against an employee because of their arrest record. Second, the case does not apply because LIRC found that the District did rely on arrest-record information when making its discharge decision, and we must accept this finding because it is supported by substantial evidence. This remains true even though the District argues that Casey’s testimony about her personal belief in the Cotas’ guilt supports a different conclusion about the District’s motive. LIRC weighed the evidence relevant to the District’s motive and found that the District was motivated by the Cotas’ arrest records. This finding is supported by substantial evidence, and therefore must be accepted.  Protasiewicz Concurrence In today’s decision, the court follows the law where it leads, but we arrive at a strange result. I write separately to call attention to the oddity of this outcome and to recommend that our statutes better accommodate employers who are victims. I agree with the majority that the statute at issue includes non-criminal offenses and that LIRC correctly concluded the District fired the Cotas because of their arrest records. But as a result of today’s decision, the District may not fire employees who it suspects stole from the District. That is no way to treat the victim of an offense. In the Wisconsin Fair Employment Act (“the Act”), the legislature balances a couple of interests. Surely, the legislature seeks to protect employees. To that end, the Act prevents “employment discrimination because of” arrest record or conviction record, among other things. But the legislature also protects employers’ interests in some instances. The legislature created exceptions that allow employers to sometimes take employment action in the context of an employee’s arrest record or conviction. For example, an employer may suspend an employee when the employee is subject to a “pending criminal charge” if “the circumstances of the charge substantially relate to the circumstances of the particular job.” In another example, an employer may fire an employee who “has been convicted” of an offense under “circumstances . . . which substantially relate to the circumstances of the particular job.” This case calls for another exception to protect employers when an employer is a victim. Here, the District was a victim, which makes this case different than many cases of arrest record discrimination. *** . . . We are left with a strange result. The District was the victim of an offense and suspected its employees did it. It could have fired the employees, but instead asked law enforcement to investigate. Because law enforcement investigated, the employees had an arrest record which limited the District’s ability to fire the employees. In the end, under today’s decision, the District may not fire the employees that it believes stole from the District. Our statutes should not hamstring employers who are victims that way. An employer should be allowed to take employment action when it is the victim of an offense and suspects an employee did it, even when it relies on information from law enforcement. Nevertheless, I must follow the law as it stands, and I agree with the majority. The text of the statute at issue includes non-criminal offenses, and LIRC correctly concluded that the District fired the Cotas because of their arrest records. But this case highlights how our statutory scheme breaks down when an employer is the victim of an offense and seeks law enforcement intervention. I urge the legislature to address this unjust situation.  Ziegler Ziegler dissent The court’s decision sends a message to employers across the state: If the employer believes one of its employees may have committed a crime—say, stealing from that employer—based upon its own internal investigation, it should quickly fire the employee rather than have its suspicions confirmed by a full investigation by law enforcement. The court’s decision forecloses an employer from firing such an employee even when the employer’s suspicions about the employee’s conduct are confirmed by law enforcement’s investigation. Maybe this case is an example of the “old adage” that “bad facts make bad law,” but the upshot of the court’s decision is directly at odds with the legislatively enacted purpose of the statutes at issue. These statutes were enacted to protect employees from unwarranted termination. But today’s opinion will ensure the opposite: Employers can no longer give their employees the benefit of the doubt, allowing law enforcement to confirm their suspicions, because that could mean the employer will risk liability under the law. Accordingly, I dissent. The Wisconsin Fair Employment Act (the Act) bars employers from engaging in certain forms of employment discrimination. With some exceptions, an employer may not “discriminat[e]” against an individual “on the basis of . . . arrest record[s].” The statute provides that discrimination includes “terminat[ing] from employment . . . any individual . . . because of” an individual’s arrest record. In turn, “arrest record” is statutorily defined as including, but not being limited to, “information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.” *** The legislature affirmatively and expressly declared the purpose and policy of the Act; it is to protect employees from termination under a variety of circumstances, including when an employer wishes to terminate an employee because that employee has an arrest record. . . . The court’s decision contravenes the legislatively stated purpose of the Act. Here, had the employer not given the employees the benefit of the doubt and asked law enforcement to investigate that which the employer had already determined, and instead fired the employees before law enforcement determined the employees should be charged, the employer would not be liable. If the employer fired the employees earlier, no liability would have attached because no arrest records would have existed. Simply stated, waiting to have law enforcement confirm the employer’s suspicions meant that the employer was liable. So, instead of protecting the employment of employees, the Act, as the court interprets and applies it, promotes the premature firing of employees suspected of committing offenses. Stated otherwise, the court renders the Act self-defeating in factual situations like these. *** The wrongful deference the majority gives to LIRC’s factual findings in this case demonstrates the unlikelihood that courts will reverse a finding by LIRC that an employer terminated an employee because of the employee’s arrest record. Here, the facts demonstrate that the employees were terminated because they stole from the employer, not because they had arrest records. But the majority upholds LIRC’s erroneous finding all the same. While the court might be technically correct that merely having an arrest record is insufficient to trigger liability under the Act, under circumstances presented in a case like this one, the mere existence of an arrest record seems to be sufficient for LIRC to find an employer liable. Employers will act accordingly and fire their employees after an internal investigation, even if the investigation is inconclusive, before law enforcement gets involved. Employers cannot risk the possibility that LIRC will make the inference—which after today’s opinion will be all too easy to make—that the employer fired its employee because of the employee’s arrest record, not the employer’s prior internal investigation. No doubt, the court’s decision is a victory for Gregory and Jeffrey Cota. But the decision may ultimately prove to be a defeat for employees across Wisconsin. The stated purpose of the Act is to protect employees from unwarranted termination. Here, the employees were terminated because they stole from their employer. Yet, according to the majority, the employer’s hands were tied when it came to terminating them. Had the employer terminated the two employees sooner, there would be no arrest records and the employer would face no liability. The outcome of this case turns the stated purpose of the Act upside down— pushing employers to terminate employees as quickly as possible to avoid the risk of liability under the Act. The legislature did not intend the statute to operate in this manner.  Grassl Bradley Grassl Bradley dissent
The majority mistakes a conclusion of law for a finding of fact. Whether an employer unlawfully terminated an employee based on his arrest record is a conclusion of law, as LIRC’s Order properly denominated it. . . . Whether the facts found by an agency “fulfill a particular legal standard is a question of law, not a question of fact.” By misapprehending a question of law for one of fact, the majority sidesteps its responsibility to declare the law and effectively endorses LIRC’s misinterpretation of the governing statute to shield employees from any adverse employment consequences for their malfeasance. Even if the issue of whether the District fired the Cotas based on their arrest records presented a factual question, no reasonable person would conclude the District fired the Cotas for any reason other than the fact the Cotas stole from their employer. It is preposterous to suggest the District fired the Cotas based on their status as persons with arrest records. Nothing in the law compels this court to reward the offenders and punish the victim. Only the majority’s tacit approval of LIRC’s crabbed reading of statutory law produces this farce. The Wisconsin Fair Employment Act (“the Act”) prohibits employers from discriminating against individuals “on the basis of” their “arrest record,” among other bases such as race or sex. Termination of employment constitutes a discriminatory action the law prohibits if taken “on the basis of” an arrest record. LIRC concluded the District terminated the Cotas on the basis of their arrest records because the District waited to fire them until law enforcement created arrest records validating the District’s conclusions. This hyper-literal construction of the Act contradicts the statute’s textually manifest purpose and assigns the law an unsound meaning. *** Even under the majority’s misguided framework of examining the record for substantial evidence supporting LIRC’s decision, there is no evidence the District unlawfully discriminated against the Cotas. No evidence, much less substantial evidence, suggests the District fired the Cotas “solely because of” their arrest records. Nothing in the record suggests the District fired the Cotas because of the “particular class to which” the Cotas belong: individuals with arrest records. Everything in the record points to the District firing the Cotas for the obvious reason that the Cotas stole from the District. *** In this case, the arrest records came about only after Casey believed the Cotas stole from the District and then referred the matter to law enforcement. After completing her investigation, Casey concluded “there can be no question that some employment action (and perhaps criminal action) is necessary here, in view of the evidence that this investigation has produced.” Only then did the District refer the matter to law enforcement. Casey later testified “the independent police investigation . . . resulting in the issuance of the municipal theft citations, further corroborated in my mind the fact that these individuals were not forthright and had lied during our investigation and had taken proceeds from the sale of scrap metal.” The record confirms the Cotas’ arrest records merely corroborated conclusions the employer had already drawn. *** Nothing in the Act compels LIRC to penalize an employer for waiting to terminate an employee until law enforcement corroborates the employer’s conclusion that an employee stole from the employer. The Act prohibits an employer from terminating an employee “on the basis of” his arrest record, but an employer can certainly terminate an employee because he stole from the employer. The court of appeals confirmed that interpretation in a prior case and LIRC has applied it repeatedly. In this case, LIRC adopted a new, narrow, and strict construction of the Act, ignored its context and textually expressed purpose, and rejected decades of cases interpreting the law correctly. The majority refuses to apply the obvious meaning of “on the basis of” and instead improperly defers to LIRC’s legal conclusion, mischaracterizing it as an issue of fact. While the court may be bound by LIRC’s findings of fact, it is supposed to independently interpret the law. Although the court could correct LIRC’s error of law and apply the Act’s actual meaning to the facts as found by LIRC—the most efficient disposition of this litigation—at a minimum the court should remand the matter to LIRC to decide the case under the correct interpretation of the law. Instead, the majority carelessly embraces LIRC’s misunderstanding of a statute that prohibits categorical discrimination against individuals merely because they have an arrest record. Nothing in the text of the law protects employees accused of committing crimes against their employers. The majority’s improper deference to LIRC’s misinterpretation of the Act will perversely incentivize employers to fire employees without investigating accusations or suspicions against them, lest law enforcement’s later involvement trigger the indemnity the majority confers on employees suspected of misconduct. Nothing in the law necessitates this ludicrous situation, which is of the majority’s own making. I dissent. Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed headings, citations, and footnotes from the opinion for ease of reading but have linked to important cases cited or information about them. Emphasis by the court is underlined. Italics indicate WJI insertions except for case names, which are also italicized. Protasiewicz The case: Wisconsin Voter Alliance v. Secord Majority: Justice Janet Protasiewicz (11 pages in a new slip opinion format), joined by Justices Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky, and Brian Hagedorn Concurrence: Hagedorn (8 pages) Dissent: Justice Rebecca Grassl Bradley (2 pages), joined by Chief Justice Annette Kingsland Ziegler Upshot The Wisconsin Voter Alliance filed identical petitions for writ of mandamus against the registers in probate for 13 circuit courts around Wisconsin demanding access to Notice of Voting Eligibility forms ("NVE forms") under Wisconsin's public records law. In the first case to reach the court of appeals, District IV issued a unanimous, published opinion holding that public records law and WIS. STAT. § 54.75 exempt NVE forms from disclosure, so the Alliance is not entitled to them. Shortly after, District II issued a split opinion in this case. The majority reached the opposite conclusion, holding that public records law and § 54.75 do not exempt NVE forms from disclosure, so the Alliance is entitled to them with possible redactions. *** While this appeal raises an important issue regarding public records law, we do not reach it due to District II’s patent violation of the precedential case of Cook v. Cook. . . . When the court of appeals disagrees with a prior published court of appeals opinion, it has two and only two options. It may certify the appeal to this court and explain why it believes the prior opinion is wrong. Or it may decide the appeal, adhering to the prior opinion, and explain why it believes the prior opinion is wrong. The Supreme Court reversed and remanded the case to District II with instructions to follow the Cook case. Background This appeal concerns the petition for writ of mandamus that the Alliance filed against Kristina Secord, the register in probate for the Walworth County Circuit Court. The petition asserts that when a court finds an individual incompetent to vote, the clerk of court completes an NVE form indicating the individual’s name, address, finding of incompetency to vote, and other personal information. The clerk sends the completed NVE form to the Wisconsin Elections Commission (“WEC”), which maintains a public database of registered voters in Wisconsin called WisVote. According to the Alliance, WEC is required to identify individuals who are ineligible to vote due to incompetency on WisVote, in order to prevent them from registering to vote and voting in elections. The Alliance sought access to NVE forms that Secord “sent to the Wisconsin Elections Commission anytime.” At a minimum, the Alliance wanted the names and addresses of the individuals declared incompetent to vote. Citing public records law, the Alliance claimed that it needed this information in order to prove WEC was not always updating WisVote to show individuals found incompetent to vote in Wisconsin elections. Secord moved to dismiss the Alliance’s petition for writ of mandamus . . . . Secord argued that WIS. STAT. § 54.75 exempts NVE forms from disclosure under public records law. Therefore, the Alliance was not entitled to a writ of mandamus compelling disclosure of the NVE forms. The circuit court agreed with Secord and dismissed the Alliance’s petition for failure to state a claim. The Alliance appealed to the court of appeals, District II. By this point, the Juneau County Circuit Court had already dismissed an identical petition for writ of mandamus that the Alliance had filed against Terry Reynolds, the Juneau County register in probate. The Alliance had appealed to the court of appeals, District IV. In Reynolds, District IV held that the Alliance was not entitled to the NVE forms under public records law and § 54.75 and affirmed the Juneau County Circuit Court’s dismissal of the Alliance’s petition. The Alliance did not petition this court for review of Reynolds. District II issued its decision in this case after the Reynolds decision. Guts The parties agree that NVE forms are “court records.” They dispute whether NVE forms are “pertinent to the finding of incompetency” under the first sentence of § 54.75. They also dispute whether the Alliance is entitled to the NVE forms under the second sentence of § 54.75, which authorizes disclosure of limited information to a person who demonstrates a “need” for it. In Reynolds, the Alliance’s initial brief presented this issue to District IV: “Whether [an NVE form] used to communicate to election officials or an agency the circuit court’s determination of a person’s competency to register to vote or to reinstate the right to vote is subject to disclosure under the Public Records Act.” In a unanimous, published opinion, District IV held that NVE forms are exempt from disclosure under the first sentence of § 54.75 because they are court records “pertinent to the finding of incompetency.” They are created during proceedings where a court determines incompetency for purposes of establishing a guardianship, and they contain information drawn directly from this proceeding. *** We turn to District II’s opinion in this appeal. The Alliance’s initial brief in the court of appeals presented the identical issue as in Reynolds. But District II issued a split opinion, including a majority, a concurrence, and a dissent. The majority opinion acknowledged that it was bound by Reynolds “to the extent it is not distinguishable.” Then it distinguished Reynolds. The majority noted that in Reynolds the circuit court granted the motion to dismiss the Alliance’s petition for writ of mandamus without waiting for a response or full briefing. This prevented the Alliance from clarifying its records request and defending its position. By contrast, in this case the circuit court had the benefit of full briefing and argument. The majority also reasoned that while the Alliance seeks “the very same records” in both cases, “that is neither dispositive nor a basis upon which to avoid ruling on an issue previously not decided. The question is whether the issues vary. And they do.” The majority opinion did not address whether NVE forms are “pertinent to the finding of incompetency” under the first sentence of § 54.75. It reserved that analysis for the concurring opinion. Instead, the majority opinion began by performing a public policy balancing test and found that the policy of protecting an incompetent person’s dignity and privacy “is expressly outweighed by the legislature’s mandate that voting ineligibility determinations are to be publicly communicated to the local officials or agencies through WEC (as directed by the Court System) and the public in general.” *** The two judges in the majority also filed a concurring opinion. The concurrence construed the first sentence of § 54.75 and declared: “[W]e disagree with the analysis in [Reynolds] with respect to the definition of the phrase ‘pertinent to the finding of incompetency.’” The concurrence reasoned that circuit court records and forms “leading up to” the finding of incompetency are “pertinent” to the finding of incompetency. But the determination that an individual is ineligible to vote does not “lead up” to the finding of incompetency. It is a “consequence” of that finding. Therefore, NVE forms are not pertinent to the finding of incompetency. As an initial matter, we find the District II majority’s attempt to distinguish Reynolds unpersuasive. In both cases, the Alliance filed identical petitions for writ of mandamus demanding access to NVE forms. In both cases, the registers in probate moved to dismiss the Alliance’s petitions for failure to state claim upon which relief could be granted. In both cases, the circuit courts dismissed the Alliance’s petition because NVE forms are confidential under § 54.75. The Alliance appealed both decisions. In both appeals, the Alliance sought “the very same” records and presented—verbatim—the same issue of law. In both appeals, the register in probate argued that NVE forms are exempt from disclosure under § 54.75. On the facts and the dispositive legal issue, the two appeals are virtually indistinguishable. District II simply disagreed with Reynolds. Cook v. Cook instructs the court of appeals how to proceed when it disagrees with one of its prior published opinions. We explained that while the court of appeals is comprised of four districts that sit in different parts of the state, it is a unitary court, not four separate courts. Officially published opinions of the court of appeals are precedential and have statewide effect. Therefore, only the supreme court may overrule, modify, or withdraw language from a published court of appeals opinion. *** We reject the District II majority’s effort to skirt Cook by drawing fine distinctions between arguments and assuming additional or different facts. If we were to ignore or approve what the District II majority did, we would gut Cook. Like the Alliance, future litigants would feel encouraged to litigate issues “multiple times in the four districts.” Why not? Like the Alliance, if they lose in one district they might win in another. Hagedorn Concurrence The majority holds that the decision of the court of appeals below contravened a prior published decision of the court of appeals, and therefore violated Cook v. Cook. Indeed it did, and I join the court’s opinion. I write separately, however, to address two issues. First, I write to clarify the role of mandamus in public records cases. Both parties, and the court of appeals below, discuss the mandamus requirements in ways that are inconsistent with the law and likely to confuse matters further. Second, I write to discuss the reasoning of Cook v. Cook, and question whether the rules it announces rest on a solid legal foundation and are worth reexamination. First, it is important to clarify the unique way mandamus applies in public records cases such as this. We have described the common law writ of mandamus as an extraordinary legal remedy that may issue only when a party can show: (1) a clear legal right; (2) a positive and plain duty; (3) substantial damages; and (4) no other adequate remedy at law. Both parties in this case and the court of appeals misunderstand how these requirements apply in public records cases, however. Secord suggests, for example, that WVA failed to meet the fourth requirement for mandamus because it could obtain the records another way—such as requesting a court order for the records under Chapter 54. The parties also debate whether the records should be released on the grounds that WVA failed to establish the third mandamus requirement—substantial damages. Secord appeals to the public goods and harms that could result from releasing or protecting the documents. WVA counters that it would not be able to carry out its investigatory purposes without the records, and is therefore harmed. And the court of appeals entertains these arguments and concludes the third mandamus requirement is met because voter integrity and public confidence in our elections support WVA’s claim of substantial damages. This reasoning reflects a mistaken understanding of the law . . . . *** . . . Our cases teach that the only inquiry that matters in public records mandamus actions is whether the requester has a legal right to the records. This step is where a court determines whether the documents are records at all, whether any statutory or common law exceptions apply, and whether the balancing test would preclude release. All of this is appropriately part of whether a requester has a right to the records in the first place. If records have wrongly been withheld, the custodian must turn them over to the harmed requester, and a writ of mandamus ordering the custodian to do so is the prescribed remedy. The second issue concerns the basis for the decision in the majority opinion. In 1997, 20 years after the court of appeals was created, we considered “whether the court of appeals has the power to overrule, modify or withdraw language from a previously published decision of the court of appeals.” We answered that it did not. But the reasoning offered was sparse, and rested predominantly on pragmatic and policy concerns. *** . . . It is true that this court has a primary role in clarifying the law in Wisconsin. And it is true that error correction is a primary role of the court of appeals. But throughout its history, the court of appeals has decided high profile cases of first impression. And it was right to do so. Both the court of appeals and this court have an important role to play in clarifying the law. That’s why the published decisions of both courts have statewide precedential effect. Thus, while most of the cases the court of appeals handles fall in the category of error correction, and most of our cases involve issues of statewide importance, this fact does not implicate the power of a court to overrule itself. The Cook court’s reliance on the different roles between the court of appeals and this court does not provide a sound basis for its conclusions. *** In the end, while the rules Cook establishes may be a permissible and reasonable exercise of our constitutional authority, it is not a decision commanded by the constitution itself. Over the years, it has had the regrettable effect of expanding the power of this court, and minimizing that of the court of appeals. I encourage my colleagues in the bench and bar to consider whether alternatives might better serve the people of Wisconsin.  Grassl Bradley Dissent
The parties presented two issues to this court: Whether the court of appeals violated Cook v. Cook, by contradicting its own precedent, and whether Notice of Voting Eligibility forms (“NVE forms”)—used to notify election officials that a court has deemed an individual incompetent to vote—are “pertinent to the finding of incompetency” under WIS. STAT. § 54.75 and thereby statutorily exempt from Wisconsin’s public records laws. One of those issues presents an opportunity for this court to analyze and resolve weighty matters of privacy, open access to public information, and election integrity. The other allows us to wag a finger in admonishment at the court below. Although both parties urged the court to resolve the substantive issue, the majority dodges it and chooses to scold the court of appeals instead. The majority could have summarily reversed in a per curiam opinion but instead forced the parties to bear the cost of fully litigating the case before us. Principles of judicial economy and fundamental fairness demand we decide the substantive issue instead of skirting it on a technicality. Judicial economy is a prudential consideration that promotes the effective use of judicial resources to avoid duplicative or unnecessary litigation and fulfills this court’s duty to clarify the law. Even if the resolution of one issue disposes of a case, “to further judicial economy and guide trial courts and litigants, we may consider additional issues which have been fully briefed and are likely to recur . . . in the interest of conserving judicial resources and clarifying an important point of law.” This principle also embodies a concern for the resources litigants must spend to resolve their disputes. Nothing compels this court to disregard these considerations and favor Cook instead. When previously confronted with conflicting court of appeals precedent, this court has chosen to decide the merits of the case while also reminding the court of appeals of Cook’s edict. The majority claims Cook commands reversal because actually deciding this case would somehow “thwart the ‘principles of predictability, certainty and finality relied upon by litigants, counsel and the circuit courts.'” While those are indeed important principles, a new majority of this court did not hesitate to thwart them repeatedly last term. Setting aside the new majority’s newfound regard for the principles of predictability, certainty, and finality, none of them preclude us from deciding the merits of this case. A reversal premised on Cook, if warranted, should have been done summarily and promptly after the petition for certiorari was filed. Instead, by order of this court, both parties filed a complete set of briefs fully addressing the merits of the substantive issue in this case. The court accepted amicus briefs from three separate non-parties, each of whom explored various substantive legal issues. At oral argument, both parties agreed a decision on the merits was appropriate notwithstanding Cook. Nevertheless after ordering both parties to expend considerable time and resources and bear the substantial costs of appellate litigation—the majority deprives not only the parties but the people of Wisconsin of a decision on the merits. Perhaps the majority agrees with District IV and disagrees with District II. Then say so. By dodging the core issue, the majority not only burdens the litigants with its own inefficiency, it also leaves unresolved issues of great importance to voters, election officials, and people from whom courts have removed the right to vote due to incompetency. Because the time for resolving this matter under Cook has long since passed, I respectfully dissent. The SCOW docket: Police extended a traffic stop beyond the time allowed for caretaker concerns11/18/2024 Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed headings, citations, and footnotes from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized.  Hagedorn The case: State of Wisconsin v. Michael Gene Wiskowski Majority: Justice Brian Hagedorn (16 pages), joined by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, Rebecca Dallet, Jill Karofsky, and Janet Protasiewicz Concurrence: Hagedorn (24 pages), joined in part by Grassl Bradley and Protasiewicz Concurrence: Protasiewicz (8 pages), joined by Walsh Bradley Dissent: Chief Justice Annette Ziegler (14 pages) The upshot We conclude that Officer Simon's seizure of Wiskowski violated Wiskowski's rights under the Fourth Amendment. Officer Simon did not possess reasonable suspicion to conduct the stop. And even assuming Officer Simon initially engaged in bona fide community caretaker activity when he stopped Wiskowski, he unlawfully prolonged the stop and began an investigation without reasonable suspicion. We therefore reverse the court of appeals decision and remand to the circuit court with instructions to vacate the judgment of conviction and grant the motion to suppress. The facts Michael Wiskowski fell asleep (at 1:00 p.m.) in a McDonald's drive-thru lane behind the wheel of his truck. An employee knocked on his window to wake him up and called the police. Officer Devin Simon was about a minute away when he received a call from dispatch regarding the incident. He headed to the scene and watched a truck matching dispatch's description pull out of the drive-thru and make a proper turn. Officer Simon then pulled Wiskowski over. Wiskowski explained that he was tired because he had just finished a 24-hour shift. Although Officer Simon did not notice any signs of impairment or criminality, he felt something was off, and prolonged the stop to determine whether he had grounds to investigate further. Officer Simon ultimately ordered Wiskowski out of his truck, at which point Wiskowski manifested signs of intoxication, leading to an arrest and charges. Wiskowski moved to suppress the evidence discovered during the stop. The circuit court denied the motion, concluding that the stop and further investigation were justified as a permissible "community caretaking function." The court of appeals agreed .... *** Wiskowski eventually pled no contest to one count of operating a motor vehicle under the influence as a fourth offense. He appealed the judgement of conviction, arguing that the circuit court erred in denying his motion to suppress. The court of appeals affirmed on the same community caretaking grounds. Wiskowski then petitioned this court for review. Wiskowski argued to the Wisconsin Supreme Court that the traffic stop was unlawful under the Fourth Amendment, which prohibits unreasonable searches and seizures. The state argued two grounds in response: that the stop was a permissible investigatory stop supported by reasonable suspicion and that the stop consisted of permissible community caretaker activity. The state had not raised the reasonable suspicion argument in the court of appeals. The guts One type of intrusion deemed reasonable under the Fourth Amendment is an investigatory stop. This temporary infringement on personal liberty must be supported by reasonable suspicion—that is, in view of the whole picture, whether a reasonable police officer would reasonably suspect that criminal activity is afoot. While reasonable suspicion doesn't demand much, it does demand more than a hunch. And that is all we see here. It is true that falling asleep in a drive-thru during the day could be a sign someone is impaired. It is also black-letter law that officers need not rule out the possibility of innocent behavior to initiate a traffic stop. But by itself, without any additional indicators of impairment, we conclude this is too speculative to amount to reasonable suspicion. By the time Officer Simon arrived, Wiskowski was driving normally out of the drive-thru and onto the road. Officer Simon did not observe nor were there any reports of erratic driving. Wiskowski did not commit any traffic violations, and there were no other clues suggesting he was operating his vehicle while intoxicated. Other than falling asleep, no one reported any other kind of problematic behavior or indications of impairment during his visit to McDonald's. Midday drowsiness standing alone, without any other indicators of impairment, is simply not enough. Reasonable suspicion may be a low bar, but it's not that low. The State's contention that Officer Simon's traffic stop was supported by reasonable suspicion fails. The State also argues that Officer Simon's seizure of Wiskowski during the traffic stop was justified as a permissible community caretaker activity. The line of community caretaker cases is rooted in the recognition that law enforcement work is multifaceted. Officers wear multiple hats. Sometimes they are acting to enforce the law by investigating and stopping illegal activity. Other times they act to protect property or help "a member of the public who is in need of assistance." This is what we have called the community caretaking function. These diverse strains of law enforcement action sometimes blend together. An officer might aid someone in need and at the same time have a hunch something illegal occurred or observe evidence that gives rise to a criminal investigation. Yet when analyzing the permissibility of a seizure in the community caretaking context, we have emphasized that officers act as community caretakers when, viewed objectively, they engage in activities "totally divorced from the detection, investigation, or acquisition of evidence" of a crime. Hagedorn then discussed United States Supreme Court caselaw that created a three-step analysis. The first step, that a seizure occurred, was undisputed. Step two asks as an initial matter whether the officer was engaging in a bona fide community caretaking function. This means we examine whether this was an objective effort to assist a member of the public in need that was "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Even if the answer is yes, however, that is not enough on its own to determine whether the seizure was lawful. The third step goes further. Tracking the Fourth Amendment's command, courts must balance the various interests to determine whether the exercise of that community caretaking activity was reasonable. We ultimately determine that, assuming without deciding Officer Simon had a bona fide community caretaking justification when he stopped Wiskowski, the continuation of the stop was unreasonable under the facts of this case. So we focus our analysis there. *** In this case, key to our analysis is whether and when it is reasonable to extend a seizure undertaken for community caretaking purposes once an officer resolves the reason for the stop. The general rule across jurisdictions—and we agree—is that a seizure should not be extended beyond its initial justification absent some other justification that emerges, like reasonable suspicion. *** Applying (United States Supreme Court) principles to this case, we conclude that even if the original stop was a bona fide community caretaking activity, Officer Simon unreasonably extended the stop beyond its original justification. Officer Simon initially stopped Wiskowski to perform a welfare check and ensure he was safe to drive. But after their first conversation, nothing reinforced continued concern on that basis. In Officer Simon's telling, Wiskowski was "acting normal." Officer Simon asked Wiskowski about falling asleep in the drive-thru and received a reasonable explanation. Wiskowski did not show signs of sleepiness during their interaction. And Officer Simon did not see signs of a medical emergency. At that point, the public interest or exigency that may have existed was resolved; Officer Simon had no community caretaking justification to prolong the stop. Yet Officer Simon did prolong the stop. He held Wiskowski there as he endeavored to determine whether he had enough to justify a criminal investigation. Wiskowski was clearly not free to leave, despite the welfare-based justification for the initial stop failing to reveal further concern. Under the facts of this case, Wiskowski was in no additional need of assistance. This means Officer Simon had no community caretaking justification to extend the stop, and should have allowed Wiskowski to leave. It is true that when the community caretaking concern dissipated, Officer Simon could have continued Wiskowski's detainment if facts emerged during their initial conversation that gave rise to reasonable suspicion. Indeed, Officer Simon's focus turned to criminal investigation as he probed for a reason to pull Wiskowski out of his car. But Officer Simon did not smell alcohol on Wiskowski and did not observe any other evidence of possible impairment. Having nothing more than a thought that "something was kind of going on that maybe [he] wasn't seeing in the car"—i.e., a "hunch"—Officer Simon detained Wiskowski well beyond the stop's justification. If Officer Simon, armed solely with a report that a driver fell asleep in a drive-thru, did not have reasonable suspicion when he stopped Wiskowski, reasonable suspicion certainly did not materialize following an initial encounter revealing no new evidence of impaired driving. Hagedorn concurrence Hagedorn first discussed the rules regarding raising arguments not raised in the appeals court, then turned to the community caretaker doctrine. Our cases addressing this doctrine do not derive from an independent analysis of the Wisconsin Constitution's text or history. Rather, we rely on United States Supreme Court precedent. To that end, our cases point back to a United States Supreme Court case, Cady v. Dombrowski, as the origin of this doctrine. Just a few terms ago, however, the Supreme Court held that the Fourth Amendment does not grant officers a broad community caretaking license to search homes. The Court further cast at least some doubt about whether the community caretaker doctrine is a standalone category through which police conduct should be analyzed. If that's true, the doctrines our cases use to address this kind of law enforcement action may be due for a reassessment. My aim in this writing is to start the conversation by briefly telling the story of how the community caretaker doctrine came to be, surveying where it stands now, and raising questions that this and other courts may need to address in future cases. *** Our cases—and those in other states—paint a clear picture. After four decades, the community caretaker functions of police recognized in Cady expanded from its original application to automobile inventory searches into a broad doctrine. Courts utilized this framework to permit all kinds of noncriminal searches and seizures, both on the road and in the home. These doctrinal developments marched forward in the lower courts with little to no direction from the United States Supreme Court. That changed in 2021. *** In a brief, unanimous opinion (in the Caniglia v. Strom case), the Court reiterated that officers are sometimes permitted to enter the home and its curtilage without a warrant, such as when rendering emergency aid. The First Circuit's community caretaking rule, however, went beyond anything the Court had recognized. Cady involved the search of an impounded vehicle, not a home. And the Cady court "expressly contrasted its treatment of a vehicle already under police control with a search of a car 'parked adjacent to the dwelling place of the owner.'" This distinction between vehicles and homes placed Cady's use of the phrase "community caretaking" into its proper context. The Court had used the phrase to explain why frequent traffic accidents and disabled vehicles often require the police to perform noncriminal "community caretaking functions," such as aiding motorists. This recognition that officers perform a variety of noncriminal tasks as part of their duties was exactly that—"a recognition that these tasks exist, and not an open-ended license to perform them anywhere." ... *** So where does that leave us now? First, Caniglia appears to mean that Wisconsin cases permitting home entries under community caretaking are no longer good law—at least insofar as they rely on community caretaking to justify the intrusion. It remains to be seen whether other doctrines might lead to the same outcome. More generally, Caniglia also suggests that the Supreme Court is uncomfortable with community caretaking as a broad category authorizing warrantless searches and seizures. However, it seems equally clear that the Court is not abandoning the proposition that some searches and seizures by law enforcement conducted to aid citizens, protect property, and ensure safety are permissible under the Fourth Amendment. Therefore, we may soon need to address whether to formally abandon community caretaking as a separate, freestanding doctrine through which warrantless searches and seizures should be evaluated. If we do so, courts may need to wrestle with whether functions we might now categorize as "community caretaking" may be better understood or evaluated under other doctrines, such as emergency aid or exigent circumstances . . . . In addition, it's possible some of the more expansive understandings of community caretaking in Wisconsin and elsewhere may need to be circumscribed. This is especially true where the need for the search or seizure is less urgent or could be accomplished through other means. Given this newfound uncertainty, both this court and the court of appeals must work to ensure our decisions have a firm foundation in United States Supreme Court precedent. While this case does not ask us to resolve these questions, I write here to highlight them so the discussion can begin.  Protasiewicz Protasiewicz concurrence I concur with the majority opinion. I write separately to address confusion in the law regarding a respondent's ability to argue alternative grounds for affirming the court of appeals in its response brief. The State seems confused because it erroneously cited (one section of a rule) regarding petitions for cross-review to justify waiting until its response brief to argue reasonable suspicion. And this court has sown confusion by, in some cases, ignoring (a second section of the rule) and improperly holding respondents to rules that govern only petitioners. The court should clarify the law on these matters. Protasiewicz then discussed the text of the rule provisions. While the rules governing a respondent’s presentation of issues for this court’s review seem clear enough, the court and the State in this case have stumbled over them. *** Discussion of caselaw regarding the rules and two cases in particular that Protasiewicz said merit clarification by the Supreme Court. . . . I agree with the State that a response brief may raise alternative grounds for sustaining the court of appeals result. The State may do so even if the alternative ground was not raised in the lower courts. Like it or not, that is "well-established law in Wisconsin." But the respondent proceeds at its own risk. This court is not required to address arguments presented for the first time in a respondent's brief.  Ziegler The dissent
Wiskowski was arrested and charged with operating a motor vehicle under the influence of an intoxicant and with a prohibited alcohol concentration that was nearly 10 times over his legal limit. In the middle of the day, Wiskowski placed his order at a McDonald's drive-through and then did not appear at the window to pick it up. He evidently fell asleep at some point between ordering and the pick-up window. Understandably, the McDonald's employee who found him slumped over the steering wheel was concerned and called the police. Law enforcement responded within a minute or so and ultimately determined that Wiskowski, who had been convicted three prior times for drunk driving, was again drunk driving. Well over his legal limit, he was charged a fourth time. The entirety of the interaction with law enforcement at this traffic stop was just over eight minutes. Most likely, the average traffic stop is longer than this eight minute inquiry. But the majority concludes that the evidence against Wiskowski must be suppressed because the officer inquired a bit too long. Apparently, after Wiskowski explained that he fell asleep because he was tired, the police were no longer community caretakers and had to let him drive on. The majority does not say how long is too long, but they know it when they see it. The majority opinion addresses traditional community caretaker and extension of stop principles. The majority opinion also opines that the officer could not have had reasonable suspicion to believe Wiskowski was drunk driving. Under the totality of the circumstances, the officer's conduct was reasonable. I dissent, because, among other things, this case does not develop the law and is at most error correction. Our court should not accept review merely to correct error. *** The majority opinion does not engage in law development. It restates established principles to a fact specific situation. The current law is (1) that officers can engage in community caretaking; (2) that a traffic stop cannot be unnecessarily extended; and that an officer must have reasonable suspicion to stop a vehicle. The majority applies well-established law to the specific facts of this case. While the United States Supreme Court recently considered the community caretaker warrant exception in Caniglia, the majority does not rest its opinion on that case. Notably, the majority does not adopt that analysis, nor does it in any way alter the community caretaker exception to the warrant requirement. Perhaps it does not because the facts of Caniglia, which involved entry into a home, differ from those here—a vehicle stop. Indeed, while Caniglia may have further refined the community caretaker doctrine and some of my colleagues may wish to further consider the community caretaker doctrine in Wisconsin, the majority opinion merely applies previously accepted doctrine regarding an extended stop. *** Under the facts of this case, law enforcement responded to a named informant's call about a driver asleep behind the wheel of his vehicle, in a McDonald's drive-through, in the middle of the day. Law enforcement arrived shortly thereafter on scene and observed a vehicle matching the named informant's description, exiting the drive-through. The driver, who according to the named informant had been sleeping a moment prior, was now operating his vehicle out of the parking lot and back into traffic. Law enforcement was not required to "rule out the possibility of innocent behavior" or make "other innocent inferences" to explain this unusual behavior. Rather, the officer based his decision to initiate a traffic stop on the "totality of the circumstances" present at the time. Reasonable suspicion demands no more. The majority seems to make much of the fact that the officer testified that he did not initially smell the odor of intoxicants and somehow the stop lasted a bit too long. The majority rests its community caretaker conclusion on the officer asking and requiring too much of Wiskowski in his exchange with him, extending the stop beyond what is necessary for the community caretaker function. The majority sheds little light on what rule law enforcement should follow in the future other than the Wiskowski stop was a bit too long. In other words, this case is very fact-dependent. If the officer testified that he stopped the vehicle for a traffic violation, such as Wiskowski not using a turn signal, the majority analysis would likely be different. Officers also can base a vehicular stop upon a call from an informant, whether unknown, or as in this case, known. If just a bit earlier in this stop the officer smelled intoxicants or witnessed slurred speech or stumbling, the majority likely would not reach the same conclusion. Here, the majority says, this information came to the officer too late even though it was within minutes. The majority essentially manufactures a two-part stop out of what is one continuous inquiry. This officer did not unreasonably extend this stop. The officer's observations occurred within a fairly short time period and his inquiry was reasonable under the circumstances. After all, the touchstone of the Fourth Amendment is reasonableness. *** The circumstances surrounding the stop do not demonstrate that the officer used a high degree of overt authority or force, nor was there an extensive intrusion into a private space. In fact, the average speeding or traffic stop would likely take about the same amount of time—perhaps more. In short, the officer had reasonable suspicion to stop Wiskowski, the officer was acting as a bona fide community caretaker, and the traffic stop was not unreasonably extended. Unfortunately, our court's review of this fact-specific case fails to provide a clear rule for law enforcement. No law is developed. Long established law about reasonable suspicion is misapplied, even though its application to the case at issue should militate against suppression of the evidence. Under the totality of the circumstances, the officer's conduct was reasonable. Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed headings, citations, and footnotes from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. In this case, emphasis included in the dissent has been underlined.  Walsh Bradley The case: Priorities USA v. Wisconsin Elections Commission Majority: Ann Walsh Bradley (23 pages), joined by Justices Rebecca Frank Dallet, Jill J. Karofsky, and Janet C. Protasiewicz Dissent: Rebecca Grassl Bradley (24 pages), joined by Chief Justice Annette Ziegler and Justice Brain Hagedorn The upshot The pertinent Wisconsin statute (§ 6.87(4)(b)1.) allows the use of ballot drop boxes. . . . (W)e determine that the court's contrary conclusion in Teigen (v. Wisconsin Elections Commission) was unsound in principle, and as a consequence, we overrule it. Our decision today does not force or require that any municipal clerks use drop boxes. It merely acknowledges what the statute has always meant: that clerks may lawfully utilize secure drop boxes in an exercise of their statutorily-conferred discretion. Background In 2022, the Wisconsin Supreme Court held in the Teigen case that statute § 6.87 precludes the use of drop boxes for the return of absentee ballots to municipal clerks. The petitioners (in the present case) challenged several election procedures. Part of their claim was a contention that "the Wisconsin Supreme Court should revisit its decision in Teigen and confirm that the statute allows the use of drop boxes consistent with the statutory text and constitutional principles." WEC and the legislature moved to dismiss the complaint, arguing that the petitioners did not state a claim upon which relief may be granted. The circuit court denied the motion in part and granted it in part. As relevant here, it agreed with WEC and the legislature and granted dismissal with respect to the drop-box claim. Specifically, the circuit court determined that it "doesn't have the authority to revisit the soundness of the statutory interpretation in Teigen." It continued: "Even if I agree that Teigen was incorrectly decided, I must follow the Teigen precedent and I leave any revisiting of that decision to the Wisconsin Supreme Court." The petitioners appealed and asked the supreme court to take the case, skipping the court of appeals. The supreme court granted the petition to bypass the court of appeals on the single issue of whether to overrule Teigen. The pertinent statute, entitled "Absent voting procedure," sets forth requirements for the return of absentee ballots and the envelopes containing those ballots. The statutory language at the center of this case . . . is not extensive: "The envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots." There is no assertion here that using a drop box is "mailing" a ballot, so we focus on the requirement that the ballot be "delivered in person, to the municipal clerk issuing the ballot or ballots." In Teigen, the majority interpreted this provision to ban drop boxes, concluding that "[a]n absentee ballot must be returned by mail or the voter must personally deliver it to the municipal clerk at the clerk's office or a designated alternate site." Specifically, the Teigen majority highlighted the phrase "to the municipal clerk," determining that "[a]n inanimate object, such as a ballot drop box, cannot be the municipal clerk. At a minimum, accordingly, dropping a ballot into an unattended drop box is not delivery 'to the municipal clerk[.]'" The guts We begin our independent analysis of the language of the statute by observing that the statute requires that a completed absentee ballot be "mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots." In the petitioners' view, delivering a ballot to a drop box is a means of delivering it in person "to the municipal clerk." Taking a contrary position, the Teigen court drew a distinction between an inanimate object like a drop box and a "municipal clerk," a person to whom delivery must be made. Yet, it also dismissed a distinction of even greater import—the distinction our statutes make between a "municipal clerk" and the "municipal clerk's office." *** . . . . Synthesizing . . .information regarding the "office" of the clerk with the statutory definition of "municipal clerk" leads to the conclusion that the two terms are distinct. Put simply, the "municipal clerk" is a person, while the "office of the municipal clerk" is a location. *** By mandating that an absentee ballot be returned not to the "municipal clerk's office," but "to the municipal clerk," the legislature disclaimed the idea that the ballot must be delivered to a specific location and instead embraced delivery of an absentee ballot to a person—the "municipal clerk." Given this, the question then becomes whether delivery to a drop box constitutes delivery "to the municipal clerk" within the meaning of the statute. We conclude that it does. A drop box is set up, maintained, secured, and emptied by the municipal clerk. This is the case even if the drop box is in a location other than the municipal clerk's office. As analyzed, the statute does not specify a location to which a ballot must be returned and requires only that the ballot be delivered to a location the municipal clerk, within his or her discretion, designates. *** Reading "to the municipal clerk" to reference a person rather than a location entrusts some discretion to municipal clerks in how best to conduct elections in their respective jurisdictions. Such discretion is consistent with the statutory scheme as a whole, under which Wisconsin's 1,850 municipal clerks serve the "primary role" in running elections via our "decentralized" system. By endorsing a one size-fits-all approach, the Teigen court arrived at a conclusion that runs counter to the statutory scheme as a whole. *** Had the legislature wanted to impose a rule of statutory construction on the absentee balloting statutes, it certainly knows how to do that. In several other areas of the law, the legislature has explicitly directed that statutes should be either liberally or strictly construed. . . . The legislature did nothing of the sort with regard to absentee balloting, and it would be error to read in such a restriction where none is present. *** "Fidelity to precedent ensures that existing law will not be abandoned lightly. When existing law is open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results." Accordingly, any departure from stare decisis (the principle that requires courts to stand by their prior decisions) requires "special justification." However, stare decisis is "neither a straightjacket nor an immutable rule." It is not an "inexorable command." Indeed, "[w]e do more damage to the rule of law by obstinately refusing to admit errors, thereby perpetuating injustice, than by overturning an erroneous decision." *** An underlying purpose of strong adherence to stare decisis where a statute is involved is to protect reliance interests attendant to a precedential opinion. Here, no such reliance interests counsel in favor of upholding an erroneous interpretation of the statute. Teigen has neither fostered reliance nor created a settled body of law. Accordingly, we determine that the court's conclusion in Teigen that the subject statutes prohibit ballot drop boxes was unsound in principle, and as a consequence, we overrule it. Because the complaint sets forth allegations, which if true, would entitle the plaintiff to relief, the motion to dismiss the drop-box claim was wrongly denied.  Grassl Bradley The dissent
The majority again forsakes the rule of law in an attempt to advance its political agenda. The majority began this term by tossing the legislative maps adopted by this court in Johnson v. Wisconsin Elections Commission, for the sole purpose of facilitating "the redistribution of political power in the Wisconsin legislature." The majority ends the term by loosening the legislature's regulations governing the privilege of absentee voting in the hopes of tipping the scales in future elections. Just two years ago, in Teigen v. Wisconsin Elections Commission, this court held "ballot drop boxes are illegal under Wisconsin statutes[,] [and] [a]n absentee ballot must be returned by mail or the voter must personally deliver it to the municipal clerk at the clerk's office or a designated alternate site." Three of the justices making up today's majority dissented. The same dissenters, joined by the newest member of the court, form a majority in this case to overrule Teigen, converting the Teigen dissent into the new majority opinion and holding absentee ballots may be delivered virtually anywhere a municipal clerk designates. To reach this conclusion, the majority misrepresents the court's decision in Teigen, replaces the only reasonable interpretation of the law with a highly implausible one, and tramples the doctrine of stare decisis. I dissent. *** This court has declared: "'Stare decisis is the preferred course of judicial action because it promotes evenhanded, predictable, and consistent development of legal principles,” and "permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals . . . ." The decision-making process of this court cannot "become a mere exercise of judicial will . . . ." When the court "frequent[ly]" and "careless[ly]" overrules its prior decisions, its credibility suffers. *** Our cases have customarily required a "special" or "compelling" justification before overturning a prior decision of this court. In the past, this court has identified five special justifications for overruling precedent: "(1) the law has changed in a way that undermines the prior decision's rationale; (2) there is a "need to make a decision correspond to newly ascertained facts;" (3) our precedent "has become detrimental to coherence and consistency in the law;" (4) the decision is "unsound in principle;" or (5) it is "unworkable in practice." Predictably, the former dissenters, who now find themselves in the majority, abuse the rule of law, replacing the majority opinion in Teigen with Justice Ann Walsh Bradley's dissent. They decree the decision "unsound in principle," emptying the phrase of any meaning and making it merely a mechanism to tip the scales of justice toward their preferred outcomes. *** Although the majority purports to "assum[e]" "'stare decisis concerns are paramount where a court has authoritatively interpreted a statute[,]'" the majority discards that principle as an inconvenient obstacle to its policy preferences. According to the majority, stare decisis receives heightened force only if reliance interests are present because "[a]n underlying purpose of strong adherence to stare decisis where a statute is involved is to protect reliance interests attendant to a precedential opinion." That is a gross misrepresentation of the principle the majority claims to apply. As Justice Brett Kavanaugh recently explained, stare decisis is "comparatively strict" for statutory interpretation cases "because Congress and the President can alter a statutory precedent by enacting new legislation." Like the United States Supreme Court, this court has said stare decisis should receive extra consideration in statutory interpretation cases because the legislature may correct any errors in this court's interpretation. Scholarly sources are in accord. *** Going forward, whether decisions that interpreted statutes receive extra stare decisis protection will depend solely on the will of four and the extent to which respecting or discarding the doctrine favors their preferred outcome. The majority may revive statutory stare decisis whenever the four find it convenient. Such manipulations of the doctrine will only prove what a "result-oriented expedient" today's decision is. *** . . . . Another election statute (§ 6.84) provides a statement of legislative policy for absentee voting: . . . . The legislature finds that the privilege of voting by absentee ballot must be carefully regulated to prevent the potential for fraud or abuse; to prevent overzealous solicitation of absent electors who may prefer not to participate in an election; to prevent undue influence on an absent elector to vote for or against a candidate or to cast a particular vote in a referendum; or other similar abuses. . . . Interpretations directly contradicting this statement that "voting by absentee ballot must be carefully regulated" are less favored than plausible interpretations of the statute in harmony with the statement. *** Aside from mischaracterizing Teigen in order to deem it "unsound in principle," the majority fails to put a dent in Teigen's interpretation of the statute. The pertinent statute requires an absentee ballot to be returned to the municipal clerk one of two ways: "The envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots." Teigen held the statute does not allow offsite, unattended drop boxes. . . . "(M)unicipal clerk" is defined as "the city clerk, town clerk, village clerk and the executive director of the city election commission and their authorized representatives. Where applicable, 'municipal clerk' also includes the clerk of a school district." Interpreting the clear text, Teigen recognized the pertinent statute requires an absentee voter to either send the absentee ballot by mail or "deliver[]" the ballot "to the municipal clerk"—a person, not an inanimate object—"in person." To "deliver[]" something "to" another person, "in person," requires a person-to-person exchange. That is what the statute means, and what it has always been understood to mean. Requiring person-to-person transmission of the ballot . . . obviously precludes the use of unattended drop boxes. *** Nothing relevant has changed since this court decided Teigen two years ago. There have been no intervening changes in the facts or law to warrant overruling the decision. Nor has any evidence emerged demonstrating the decision is detrimental to the coherence of the law or unworkable in practice. The policy-laden arguments against this court's decision in Teigen have not changed either; the majority in this case has simply recycled the dissent in Teigen, rebranding it the opinion of a court. It does not deserve the title. *** Whatever can be said of the majority's decision, it "is not the product of neutral, principled judging." Although the majority attempts to package its disagreements with Teigen as legal, the truth is obvious: The majority disagrees with the decision as a matter of policy and politics, not law. The members of the majority believe using drop boxes is good policy, and one they hope will aid their preferred political party. Teigen upheld the historical meaning of Wis. Stat. § 6.87(4)(b)1., which bars the use of offsite, unmanned drop boxes. The majority in this case overrules Teigen not because it is legally erroneous, but because the majority finds it politically inconvenient. The majority's activism marks another triumph of political power over legal principle in this court. I dissent. The SCOW docket: Court mandates adherance to 2-day rule in termination of parental rights case6/28/2024 Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed headings, citations, and footnotes (with an exception in this case) from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. In this case, emphasis included in the opinion has been underlined.  Karofsky The case: State of Wisconsin vs. R.A.M. Majority: Justice Jill J. Karofsky (15 pages), joined by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, Rebecca Frank Dallet, and Janet C. Protasiewicz Dissent: Chief Justice Annette Ziegler (10 pages), joined by Justice Brain Hagedorn The upshot The circuit court violated (Wisconsin statutory law), when it failed to wait at least two days before proceeding to a dispositional hearing once the court found R.A.M.'s absence was "egregious and without clear and justifiable excuse." Consequently, the court lacked competency to proceed in this case and R.A.M. is therefore entitled to a new dispositional hearing. Background R.A.M. is the parent of P.M., a son born in February 2015. In 2017, a police officer who was already in R.A.M.'s apartment building for an unrelated reason heard a woman shouting, a child crying loudly, and a loud thump, after which he said the child became louder. The officer knocked on the door, and R.A.M. allowed the officer to enter the residence. The officer found P.M. with scratches, bruising, and bleeding from the nose. R.A.M. was the only adult present at the time of the incident. She was subsequently convicted of one count of Child Abuse - Recklessly Causing Harm, and was sentenced to one year of initial confinement and two years of extended supervision. Immediately following the incident, the State placed P.M. in foster care. In 2019, P.M. was placed with his paternal uncle, with whom he continues to reside. The State filed the present petition for the termination of R.A.M.'s parental rights in 2021, after P.M. had resided outside of R.A.M.'s home for more than three years. The grounds for the petition were that P.M. was a child with a continuing need for protection and services (CHIPS) under Wisconsin statutes and that R.A.M. had failed to assume parental responsibility under the statutes. R.A.M. contested both grounds, and a court trial began on March 28, 2022. Two additional hearing dates were set in March and April of 2022, both of which R.A.M. attended. When more time was needed to conclude the grounds phase and hold a dispositional hearing the court set three more dates in July (including July 5, 2022). (In a footnote:) Termination of parental rights cases proceed in two phases. In the grounds phase of the proceeding, the petitioner must prove by clear and convincing evidence that at least one of the grounds for termination of parental rights enumerated in (Wisconsin statutes) exists. If the petitioner does so, the case proceeds to the dispositional phase, where the court must determine whether the termination of parental rights is in the best interest of the child. On July 5, 2022, R.A.M. failed to appear in court. The parties disagree as to the cause of R.A.M.'s absence; however, there is no dispute that the judge had previously issued a standing order requiring R.A.M. to attend all court appearances or risk being found in default. When R.A.M. did not appear, the State and the guardian ad litem asked the court to enter a default judgement against R.A.M. in the grounds phase. The circuit court made the following finding: "[S]he was ordered to be here this morning and we can't proceed on the merits without her. The State is prejudiced in not being able to finish its cross examination. I think she's misleading the Court; I think she's misleading [her counsel] in her version of the events. And I do find that to be egregious and bad faith and without justification." The court then granted the Petitioners' motion for default judgment. At the conclusion of the grounds phase, the court found that the State proved by clear and convincing evidence both a continuing need for CHIPS and a failure to assume parental responsibility. As a result, the court determined that R.A.M. was an unfit parent. The court immediately moved to the dispositional phase and concluded the dispositional hearing on that same day without R.A.M. present. The court found that termination would be in the best interest of P.M. and ordered the termination of R.A.M.'s parental rights. R.A.M. appealed, and the court of appeals reversed the order terminating her parental rights. . . . Subsequently, the guardian ad litem filed a petition for review, which this court granted. The guts To resolve this case we must interpret the applicable statute, which reads in pertinent part: "[A] parent 18 years of age or over is presumed to have waived his or her right to counsel and to appear by counsel if the court has ordered the parent to appear in person at any or all subsequent hearings in the proceeding, the parent fails to appear in person as ordered, and the court finds that the parent's conduct in failing to appear in person was egregious and without clear and justifiable excuse. Failure by a parent 18 years of age or over to appear in person at consecutive hearings as ordered is presumed to be conduct that is egregious and without clear and justifiable excuse. If the court finds that a parent's conduct in failing to appear in person as ordered was egregious and without clear and justifiable excuse, the court may not hold a dispositional hearing on the contested adoption or involuntary termination of parental rights until at least 2 days have elapsed since the date of that finding." (Emphasis added by Karofsky.) The crux of this case is the last sentence of the statute (underlined above), which presents a straightforward conditional statement. If the court finds that the parent's failure to appear as ordered was "egregious and without clear and justifiable excuse," then the court "may not" hold a dispositional hearing until at least two days after the court made the egregiousness finding. *** The petitioners . . . do not meaningfully contend with the conditional statement discussed above. Instead, they urge us to consider the statute in context, and argue that a waiver of counsel must occur in order for the subdivision to apply. Additionally, petitioners insist that the statute is ambiguous. To resolve the ambiguity, petitioners encourage us to look to both the statute's title and its legislative history. *** Because the conditions that trigger the two-day waiting period are plain and unambiguous, we will not use (the statute's) title—"right to counsel"—to create ambiguity or rewrite the plain text of the statute. Statutory titles may be helpful "for the purpose of relieving ambiguity," but ultimately, "titles are not part of the statutes." Therefore, the title of the statute does not alter our understanding of the statute, or compel us to add any additional conditions for the two-day waiting period to occur. Similarly, when the meaning of a statute is plain, we do not consult legislative history to ascertain its meaning. Consequently, we do not consult the statutory title or legislative history in this case, or use either of them to supplant the language of the statute itself. To summarize, (the statute) is unambiguous, allowing us to rely on its plain language without reliance on extrinsic sources. That plain language dictates that when a court finds that a parent's failure to appear was egregious and without justifiable excuse, there is a presumption that the parent has waived their right to counsel, and, importantly for this case, the court must wait two days to hold the dispositional hearing. Having determined that the circuit court violated the statute by failing to wait two days to hold the dispositional hearing, we next must determine whether the court lacked competency to hold the dispositional hearing before the two days had elapsed. . . . The two-day waiting period at issue here is couched in mandatory language. The statute states that if a court makes an egregiousness finding, it may not proceed to a dispositional hearing without waiting two days. "'May not' is a negative term. Where statutory restrictions are couched in negative terms, they are usually held to be mandatory." Interpreting a similar "may not" structure, the court of appeals wrote in a prior case: "Negative words in a grant of power should never be construed as directory. Where an affirmative direction is followed by a negative or limiting provision, it becomes mandatory. Thus, where the statute says that the time for motions after verdict may not be enlarged, these are negative words regarding the grant of power. We hold that the language is mandatory." And here the circuit court clearly failed to follow the statute's mandate. *** Here, we conclude that the two-day waiting period is central to the statutory scheme. The two-day waiting period serves as a basic procedural safeguard for parents in termination of parental rights proceedings, potentially providing them opportunity to participate in the disposition hearing, or to ask the court to reconsider a default judgment following an egregiousness finding. Affording parents basic procedural safeguards serves the express legislative purpose of providing "judicial and other procedures through which children and all other interested parties are assured fair hearings." The requirement also serves the underlying purpose of chapter 48 of the Wisconsin Statutes: "the best interests of the child . . . shall always be of paramount consideration." This is true not least because a brief, two-day window may allow certain matters to be resolved that would otherwise result in months or even years of appeal. The waiting period is therefore no mere technical requirement, but is instead central to the statutory scheme . . . . Because the two-day waiting period is central to the statutory scheme, a court lacks competency to proceed to a dispositional hearing when it fails to wait at least two days after finding a parent's absence to be egregious and unjustifiable. As a result, we hold that the circuit court here lacked competency to proceed with the dispositional hearing.  Ziegler The dissent
The purpose of the TPR (termination of parental rights) statutes is to provide predictability, permanency, and stability for the child. In pursuit of this purpose, "[t]he courts and agencies responsible for child welfare should also recognize that instability and impermanence in family relationships are contrary to the welfare of children," so they exist to help "eliminat[e] the need for children to wait unreasonable periods of time for their parents to correct the conditions that prevent their safe return to the family." But the opposite is happening for this child. P.M.'s best interests have not been paramount. P.M. has been left waiting in a place of ongoing instability for his biological mother, R.A.M., to correct the conditions preventing his safe return. P.M. has suffered long periods of instability and impermanence, culminating in the State's petition to terminate R.A.M.'s parental rights to P.M. *** The majority errs in applying the timing requirements of the applicable statute to the facts and procedural posture of this case. The statute addresses the right to counsel and waiver of counsel, not default. While the title of a statute is not dispositive, the words of the statute are, and every single part of that statute deals with TPR proceedings and whether a parent has a right to counsel. Here, R.A.M. had counsel, and counsel was present and actively participated at R.A.M.'s TPR trial. Counsel was never even presumed waived. The statute the majority relies upon is inapplicable here. The majority misapplies the second subsection of the statute to reverse the circuit court's decision to proceed immediately to disposition. However, the language of that subsection addresses when a parent is presumed to have waived their right to counsel by their conduct. As the record clearly demonstrates, the court never found a presumption that R.A.M. waived counsel. Counsel was present in court and meaningfully participated. Waiver of counsel was never discussed. A finding of waiver of counsel was never made. In fact, the court's finding, that R.A.M. egregiously failed to appear in the courtroom, was made pursuant to a standard default judgment sanction with her counsel present, not a waiver of counsel standard. Hence, the majority applies a statute addressing presumed waiver of counsel via conduct to the wrong context. The majority relies on the wrong statute to impose time constraints which handcuff the circuit court from acting. *** The majority ignores the statute's contextual clues to hyper-fixate on the last sentence of the statute, which states: "If the court finds that a parent's conduct in failing to appear in person as ordered was egregious and without clear and justifiable excuse, the court may not hold a dispositional hearing on the contested adoption or involuntary termination of parental rights until at least 2 days have elapsed since the date of that finding." When we interpret statutes, we begin with the language of the statute. So, while "[c]ontext is important to meaning," we cannot isolate portions of a statute's plain language to analyze while ignoring the rest. Rather, the "statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole . . . ." The language of this entire statute is plain: This statute deals with waiver of counsel. The statute addresses the scenario in which a parent, by their conduct, is presumed to have waived their right to counsel. This understanding of the statute mirrors the plain language of the sentences which immediately precede the sentence the majority focuses on, which references when a parent over 18 years of age is presumed to have waived counsel. This understanding of the statute is further reflected in the subsection which immediately follows the sentence the majority focuses on, which again deals with waiver of counsel. As the plain language of the statute shows, this entire statutory scheme deals with the waiver of counsel. This statute is intended to apply to situations in which a parent, by their conduct, is presumed to have waived their right to counsel. *** . . . As the record shows, the court's egregiousness finding was made pursuant to a standard default judgment sanction. The circuit court found that R.A.M. was not being honest about her reasons for failing to appear as the court ordered her to, and determining that R.A.M.'s behavior was not forthcoming, the circuit court granted default judgment against R.A.M. Notably, R.A.M.'s counsel was still present and still representing R.A.M. even in R.A.M.'s absence. These factual findings are due our deference. There was no waiver of counsel connected to these egregiousness findings. R.A.M.'s counsel was still present and representing her. Given this context, we are not in a waiver of counsel posture as required under the statute. Instead, default proceedings and the rules of civil procedure apply, "except where different procedure is prescribed by statute or rule." *** Default or finding of default is different than waiver of the right to counsel . . . . The statute is reflective of how important the right to counsel is, and how the court must make certain findings before presuming parents have waived their right to counsel. Here, the court's findings were related to default by R.A.M. not appearing as required pursuant to the court's scheduling order. Nothing in the court's findings dealt with R.A.M. waiving the right to counsel by conduct, as is discussed in the pertinent statute. R.A.M. was represented by counsel at disposition. The court permitted R.A.M.'s counsel to continue her representation in R.A.M.'s absence. The court definitely did not dismiss R.A.M.'s counsel. So, even though R.A.M. was defaulted at grounds, she was still actively represented by counsel at disposition. The court made egregiousness and bad faith findings here pursuant to the court entering a default judgment sanction against R.A.M. As a result, the statutory two-day delay is not implicated. *** I would also note that not all default sanctions will implicate the waiver of counsel. TPR disposition time periods are outlined in a statute, and a judge may proceed immediately from receipt of a TPR after factfinding to hear evidence and motions for disposition. It is only if counsel is presumed waived by the parent egregiously violating an order to appear without clear and justifiable cause that the court has to wait two days before holding a dispositional hearing. To conclude otherwise would allow the tail to wag the dog: a parent who wishes, for whatever reason, to cause additional delay could simply choose to not show up to the remainder of the hearing and thereby receive additional time they would not otherwise have. But judges must be able to control their calendars and courtrooms. Default judgment is a tool available for judges to use in TPRs, and does not always extinguish the parent's right to counsel. Here, the statutory two-day waiting period was not automatically triggered, as the facts of the case, and the findings supported in the record, clearly indicate that the circuit court sanctioned R.A.M. with default for her violation of the scheduling order. Default judgment is an appropriate sanction for R.A.M.'s nonattendance. The court never made a determination that R.A.M.'s still-present counsel was presumed waived. The statute at issue does not properly apply to the facts of this case. Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We've deleted footnotes and headings. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them if helpful. Italics indicate WJI insertions except for case names, which are also italicized. The case: A.M.B. v. Circuit Court for Ashland County Majority: Justice Rebecca Grassl Bradley (23 pages), for a unanimous court Concurring: Grassl Bradley (12 pages), joined by Chief Justice Annette Kingsland Ziegler and Justice Brian Hagedorn Concurring: Justice Rebecca Frank Dallet (7 pages), joined by Justices Ann Walsh Bradley and Janet Protasiewicz Concurring: Justice Jill J. Karofsky (7 pages)  Grassl Bradley The upshot A creature of statute, adoption confers legal rights and duties on adopted children and their adoptive parents. The legislature has made policy choices regarding the circumstances under which children may be adopted and by whom. A.M.B. is the biological mother of M.M.C. and wishes to have her nonmarital partner, T.G., adopt M.M.C. Under the adoption statutes, T.G. is not eligible to adopt M.M.C. because T.G. is not A.M.B.'s spouse. A.M.B. and T.G. allege the legislatively drawn classifications violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in denying T.G. the right to adopt M.M.C. and in denying M.M.C. the right to be adopted by T.G. Because the adoption statutes do not restrict a fundamental right or regulate a protected class, we consider whether any rational basis exists for the legislative limits on eligibility to adopt a child. Among other legitimate state interests, promoting stability for adoptive children through marital families suffices for the statutes to survive this equal protection challenge; therefore, we affirm the circuit court. Background A.M.B. is the biological mother of M.M.C. and maintains a cohabitating, nonmarital relationship with her male partner, T.G. After more than a decade in a relationship with A.M.B., T.G. has become a father figure for M.M.C. and has assumed a variety of parental duties for her. The parental rights of M.M.C.'s biological father have been terminated. Based on T.G.'s fatherly bond and relationship with M.M.C., T.G. filed a joint petition with A.M.B. to adopt M.M.C. Prior to the adoption hearing, the county department of human services generated a "Home Study Report," which included a background check of T.G., a review of T.G.'s relationship with M.M.C., and an interview with M.M.C. The interview with M.M.C. revealed she did not have a meaningful relationship with her biological father and views T.G. as her father. The report concluded with a recommendation to grant the adoption. On June 20, 2022, the circuit court held a hearing on the adoption petition. At the outset, the court raised concerns over its authority to grant the petition given the criteria for adoption under applicable statutes, despite having determined the adoption would be in the best interests of the child, M.M.C. The circuit court cited this court's decision in Georgina G. v. Terry M., which the circuit court summarized as precluding "an adoption to a third party who is not the spouse of the parent." Because T.G. was not married to A.M.B., the circuit court determined T.G. was not statutorily eligible to adopt M.M.C. and denied the adoption petition. A.M.B. and T.G. appealed. The case bypassed the court of appeals on its way to the Supreme Court. The guts Chapter 48 of Wisconsin Statutes establishes legal adoption and specifies the circumstances under which a child may be adopted as well as who is eligible to adopt. Under the statutes, a child who is present in the State of Wisconsin when the adoption petition is filed may be adopted under any of the following four scenarios: (1) the parental rights of both parents have been legally terminated; (2) both parents are deceased; (3) the parental rights of one parent have been terminated and the other parent is deceased; or (4) "[t]he person filing the petition for adoption is the spouse of the child's parent with whom the child and the child's parent reside." Subsection (4) applies only if the child's other parent is deceased or his parental rights have been terminated. Colloquially called the "stepparent" exception, this provision permits a stepparent to adopt his spouse's child while the spouse's parental rights remain intact. The adoption statutes additionally identify three classifications of individuals who may adopt an eligible child: "A husband and wife jointly," "either the husband or wife if the other spouse is a parent of the minor," or "an unmarried adult." The statutes do not allow two unmarried adults to jointly adopt a minor. Nor do the statutes permit a nonmarital partner to adopt his partner's child. Omitting those categories of unmarried individuals from the list of eligible persons who may adopt means the law does not qualify them as adoptive parents." . . . *** The court discussed why the adoption statutes do not implicate a fundamental right under federal or state constitutions and do not affect a protected class of individuals. If a fundamental constitutional right is not at stake and a protected class is not disadvantaged by the statute, the court applies rational basis review. A "relatively relaxed standard," rational basis review reflects the court's respect for the separation of powers and recognizes "the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one." In applying rational basis review, the court will uphold the statute provided the classification bears a rational relationship to a legitimate government interest. *** The state has a legitimate interest in ensuring children are adopted into "safe and stable families." The state may achieve this goal by encouraging married couples to adopt children and the legislature recognized the essential link between marriage and the welfare of children in "The Family Code." Marriage in the State of Wisconsin creates a legal bond between two persons who "owe to each other mutual responsibility and support." This legal bond creates a series of rights and obligations between the two individuals, dissolvable only by death or divorce. Wisconsin law imposes on each spouse "an equal obligation" in accordance with financial ability "to contribute money or services or both which are necessary for the adequate support and maintenance of" the couple's "minor children and of the other spouse." The state deems "[t]he consequences of the marriage contract" to be "more significant to society than those of other contracts." Unlike a nonmarital relationship, the legal union between two individuals through marriage cannot be terminated impulsively or spontaneously; the law requires a court proceeding to terminate the contractual relationship. If a child already has a legal parent, the state reasonably concludes it would be more beneficial for that child to be adopted into a marital family, rather than by an unmarried partner of the child's legal parent. As the state argued in its brief, the fact that marriage requires legal proceedings to terminate provides "some level of assurance" the adoptive stepparent "will remain committed to the family unit and the child’s upbringing." A child joining a family with married parents enjoys a greater likelihood of a financially stable upbringing compared to a household with two unmarried parents. In the event of a divorce, Wisconsin statutes create a presumption guaranteeing both marital partners leave the relationship on financially equivalent footing. This presumption "effectuates the policy that each spouse makes a valuable contribution to the marriage and that each spouse should be compensated for his or her respective contributions." Nothing comparable exists for unmarried couples. If an unmarried partner decides to sever the relationship, he may freely leave without an equal division of financial assets, to the financial detriment of the remaining parent and the adoptive child. Rational basis review is a "low bar" for the government to clear in an equal protection challenge. In this case, the state has met this burden because it is reasonable for the legislature to have concluded that a married couple would provide a more secure and financially stable home environment for adoptive children than an unmarried couple. While A.M.B. and T.G. may provide a safe, stable, healthy, and loving home for M.M.C., the judiciary is powerless to craft an exception to the adoption law on a case-by-case basis. "A legislative classification satisfies rational basis review if any conceivable state of facts could provide a rational basis for the classification." Petitioners cannot overcome the rational basis for the classifications established in the adoption statutes. Wisconsin has a legitimate interest in preferring the stability and security of a marital household for the upbringing of adopted children. The statute's classifications for whom may adopt a child reflects the state's interest in preferring stable and financially secure households for adoptive children. Petitioners argue the state draws an arbitrary and irrational distinction by permitting a single, unmarried adult to adopt a child but not a cohabitating, unmarried partner. We disagree. The legislative classifications bear a rational basis because the state may reasonably prefer a child to be adopted by a single, unmarried adult rather than be placed in foster care or another impermanent living arrangement. Because a child with one parent has permanency, the state has a legitimate interest in restricting adoption to the child's stepparent, who is more likely to provide a stable family and better outcomes for the child. Allowing married couples to adopt but not unmarried couples is consistent with the "public policy" of the state "to promote the stability of marriage and family." By allowing married couples to adopt but not unmarried couples, the state provides a benefit to married couples not afforded to unmarried couples. States "have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities." Precluding an individual from adopting his nonmarital partner's child merely makes marriage a basis for the adoption right, a classification rooted in our nation's history. Limiting adoption to married couples and single adults is neither irrational nor arbitrary because the state has legitimate reasons for the legislative classifications established . . . . Under rational basis review, the court does not judge the wisdom of the legislative classifications. Instead, we must uphold the statute's classification if there exists some rationale to justify it. In establishing eligibility to adopt or to be adopted, the legislature chose to prioritize the stability of marriage for adopted children with one parent, while preferring an unmarried adoptive parent to impermanency for a child with no parents. A rational basis exists for these legislative policy choices. We hold that the statutes do not violate the Equal Protection Clause because they serve the legitimate state interest in promoting the adoption of children into stable, marital families. Grassl Bradley concurrence For most of the history of the United States, constitutional-rights litigation occurred predominantly in state courts and centered on state constitutional rights. It's no wonder why. The individual rights protected by the United States Constitution did not originally apply to the states. Regardless, all individual rights protected under the Constitution originated from the guarantees of liberty embodied in state constitutional provisions. Even the practice of judicial review—the main vehicle by which citizens vindicate their liberties—originated in state courts. Invoking state constitutional rights, however, has been out of vogue for some time. Such claims have sometimes been relegated to "second-tier status," and an afterthought in legal briefs. Many commentators have noted the decline in the centrality of state constitutional claims as the United States Supreme Court federalized constitutional rights during the Warren Court era. Over the course of the twentieth century, and especially in the 1960s, the Court incorporated most federal constitutional rights against the states through the Fourteenth Amendment. As incorporation occurred, the Court also developed expansive—and novel—interpretations of the Constitution. As Justice William Brennan put it, the Court "fundamentally reshaped the law of this land" by "nationaliz[ing] civil rights." As a result, the relevance of state constitutions appeared to fade. Litigants stopped arguing their cases under state constitutions. Some state courts interpreted their state constitutions in lockstep with the federal courts' interpretation of the Federal Constitution. In recent years, a newfound interest in asserting state constitutional rights has emerged, which, in theory, should benefit individual liberty. State constitutional rights are just as important and worthy of protection as federal constitutional rights. And this court has a duty to enforce the rights protected under the Wisconsin Constitution. Not all arguments for enforcing state constitutional rights are rooted in text, history, and tradition; some stem from disappointment with the outcomes in certain United States Supreme Court decisions. Negative reaction to the Burger, Rehnquist, and Roberts Courts' reluctance to "innovate" new federal constitutional rights, triggered a resurgence of interest by litigants and legal commentators in asking state courts to fill the gap. For example, in two famous law review articles, Justice William Brennan urged state courts to "step into the breach" created by the Court, and argued that "activist intervention[s]" into democratic governance are less problematic when done by state courts. The pressure on state courts to intrude on the democratic process has intensified with the Court's landmark decisions in Rucho (gerrymandering) and Dobbs (abortion). Channeling the spirit of Justice William Brennan, Justice Rebecca Dallet argues this court should abandon its past practice of construing Article I, Section 1 of the Wisconsin Constitution to provide substantially identical protections as the Fourteenth Amendment. Instead, she invites litigants to ask this court to invent constitutional rights: "[T]he lack of settled case law [discussing Article I, Section 1] should be encouraging to litigants. It is up to us—judges, lawyers, and citizens—to give effect to the fundamental guarantees of Article I, Section 1." As a pivotal part of her call for activism, Justice Dallet claims this court has embraced a "pluralistic approach" to constitutional interpretation in which this court "balance[s] the majority's values against the values that should be protected from society's majorities." Nothing could be further from the truth or more corrosive to our democratic form of government. It is not for judges to superimpose their values on the constitution. The Wisconsin Constitution's text "is the very product of an interest balancing by the people," which judges cannot "conduct for them anew" in each case. The balance struck by the people of Wisconsin, as embodied in the constitution, "demands our unqualified deference." What the constitution does not say is as important as what it says. If the constitution itself does not bar majorities from passing certain laws, there is no lawful basis for judges to say otherwise. Nothing in the constitution authorizes judges to void laws that violate some judges' sense of what ought to be. There is a good reason jurists "seldom endorse[]" the views espoused by Justice Dallet openly: They contradict "the basic democratic theory of our government." Justice Dallet attempts to conceal her call for an antidemocratic power grab with the illusion of inclusive language. She intimates that future generations must each decide for themselves what the constitution means in their time: "It is up to us—judges, lawyers, and citizens—to give effect to" the constitution's words today. When the president of Wisconsin's 1848 convention said "the pages of our constitution . . . abound[] in the declaration of those great principles which characterize the age in which we live," he did not mean to characterize the constitution as an empty vessel into which each generation may pour its prejudices and aspirations. He meant exactly what he said. The new constitution embodied the values and principles of that time, and those principles were to remain fixed and endure throughout the ages: "[The Wisconsin Constitution] abounds in the declaration of 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." Justice Dallet ultimately advocates for the discredited "practice of constitutional revision" by a committee of four lawyers who happen to form a majority on the court. Should a majority of this court—four lawyers—decide to imbue the constitution with modern meanings divorced from the constitutional text and the history and traditions of this state, they will rob the people of Wisconsin of their most important liberty: "the freedom to govern themselves." Although living constitutionalism is often couched in the rhetoric of flexibility and a purported need to adjust for a changing society, in practice it presents a grave threat to democracy by thwarting the people from passing legislation to accommodate changing views. Living constitutionalism invites lawyers donning robes to decide all the important issues of the day, removing their resolution from the political process altogether and depriving the people of any say in such matters. "In practice, the Living Constitution would better be called the Dead Democracy." Justice Dallet's invitation to reimagine the constitution's text with a so-called "pluralistic approach" flies in the face of this court's established method of constitutional interpretation and should be rejected. As with statutory interpretation, the goal of constitutional interpretation is to ascertain the meaning of the constitutional text as it would have been understood by those who adopted it. Judges lack any authority to "rewrite the Constitution to reflect the[ir] views and values." As stated by Justice Cassoday in 1890: "It is no part of the duty of this court to make or unmake, but simply to construe this provision of the constitution. All questions of political and governmental ethics, all questions of policy, must be regarded as having been fully considered by the convention which framed, and conclusively determined by the people who adopted, the constitution, more than 40 years ago. The oath of every official in the state is to support that constitution as it is, and not as it might have been." *** Any argument construing Article I, Section 1 of the Wisconsin Constitution to protect an asserted right must be grounded in the constitution's actual text and history. "Certainly, states have the power to afford greater protection to citizens under their constitutions than the federal constitution does." But it cannot simply be assumed that the Wisconsin Constitution provides more protection for an asserted right than the Federal Constitution: "[T]he question for a state court is whether its state constitution actually affords greater protection. A state court does not have the power to write into its state constitution additional protection that is not supported by its text or historical meaning." This court has stated many times that "[i]n interpreting a constitutional provision, the court turns to three sources in determining the provision's meaning: the plain meaning of the words in the context used; the constitutional debates and the practices in existence at the time of the writing of the constitution; and the earliest interpretation of the provision by the legislature as manifested in the first law passed following adoption." Litigants asserting a right under Article I, Section 1 must ground their arguments in those considerations—not policy or subjective moral judgments. Our constitution and our commitment to a democratic form of government demand nothing less.  Dallet Dallet concurrence I agree with the majority's conclusion that the adoption statutes are rationally related to a legitimate state interest, and therefore do not violate M.M.C.'s or T.G.'s rights under the Equal Protection Clause of the Fourteenth Amendment. For that reason, I join the majority opinion. I write separately to address petitioners' alternative equal protection challenge under Article I, Section 1 of the Wisconsin Constitution. Our constitution was written independently of the United States Constitution and we must interpret it as such, based on its own language and our state's unique identity. When we do so, there are several compelling reasons why we should read Article I, Section 1 as providing broader protections for individual liberties than the Fourteenth Amendment. We cannot simply assume—as petitioners seemingly did in this case—that these different constitutional provisions mean the same thing. *** (W)e have a long history of interpreting our constitution to provide greater protections for the individual liberties of Wisconsinites than those mandated by the federal Constitution. For example, we concluded that the Wisconsin Constitution guarantees the right to counsel at the state's expense in criminal cases more than 100 years before the United States Supreme Court recognized the same right in Gideon v. Wainwright. More than 40 years before Mapp v. Ohio, we held that suppression was the appropriate remedy for unlawful searches and seizures under our constitution. And we have also said that when police deliberately violate a criminal defendant's Miranda rights, our constitution requires that the evidence be suppressed, even if the Fourth Amendment doesn't require the same. More recently, we have endorsed the view that "[t]he Wisconsin Constitution, with its specific and expansive language, provides much broader protections for religious liberty than the First Amendment." *** Even a cursory review of Article I, Section 1 of our constitution and the Fourteenth Amendment indicates that the clauses have different meanings. Article I, Section 1 states, in its entirety: "All people are born equally free and independent, and have certain inherent rights: among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed." Compare this with the Fourteenth Amendment which provides in pertinent part that "No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Aside from two shared words—"life" and "liberty"—Article I, Section 1 and the Fourteenth Amendment are worded in dramatically different ways. Article I, Section 1 protects more than the enumerated rights of "life, liberty, or property." It declares unequivocally that all Wisconsinites have "inherent rights," a phrase that was written "to be broad enough to cover every principle of natural right, of abstract justice." Whereas the Fourteenth Amendment's protections extend only to those rights "so rooted in the traditions and conscience of our people as to be ranked as fundamental," the inherent rights contemplated by Article I, Section 1 are not so limited. Moreover, Article I, Section 1 begins with the clear and expansive declaration that all people are "born equally free and independent." As we said over a century ago, "[t]oo much dignity cannot well be given to that declaration." By contrast, the Fourteenth Amendment contains a narrower guarantee of "equal protection of the laws." *** Notwithstanding the many reasons to interpret our state constitution differently than the federal Constitution, litigants often overlook state constitutional claims, or fail to develop them fully. This case is a perfect example. Although petitioners argued that the adoption statutes at issue violate Article I, Section 1 of the Wisconsin Constitution, they offered little more than a citation to that section as support. Otherwise, the parties' briefs focused solely on the Fourteenth Amendment and federal precedent, and ignored the Wisconsin Constitution entirely. That omission is somewhat understandable. Lawyers are surely more familiar with the extensive case law interpreting the Fourteenth Amendment. By comparison, our case law regarding Article I, Section 1 is sparse. But we must break this self- perpetuating cycle whereby lawyers fail to develop state constitutional arguments because they lack clear legal standards, which further prevents courts from developing clear legal standards. In a way, the lack of settled case law should be encouraging to litigants. It is up to us—judges, lawyers, and citizens—to give effect to the fundamental guarantees of Article I, Section 1. And in doing so, I agree with what Justice Dodge wrote more than 100 years ago, when he said that Article I, Section 1, should "not receive an unduly limited construction."  Karofsky Karofsky concurrence
I agree with the majority that A.M.B.'s constitutional challenge merits rational basis review and that the challenged adoption statutes have a rational basis under the law. Rational basis review presents a low bar for the state to clear. We need only to conceive of a single rational connection between the statutes and a legitimate state interest in order for us to uphold the statutes' constitutionality. Here it is rational for the legislature to connect marriage to relationship longevity, then relationship longevity to household stability, and finally household stability to the child's best interest. Because there is a conceivable logic behind those connections, the statutes have a rational basis. But in this case, the logical threads begin to shred under the weight of any sincere scrutiny. Here, we are left with the inescapable fact that the legally rational statutes prevented an adoption that all agree would have been in A.M.B.'s best interest. This incongruent outcome exemplifies the specious connection between the statutes and their stated goal of promoting a child's best interest. At first glance the connection may seem neatly knitted together; however, closer inspection reveals nothing more than a fraying tangle of dubious assumptions, circular reasoning, and outdated values that fail to reflect the practical realities of modern family life. I write separately to call out these three fraying threads that form an ever weakening connection between our adoption statutes and the goal of a child's best interest. I urge the legislature to reform the adoption restrictions so that they truly support the best interest of every child. The first fraying thread connecting the adoption statutes to the best interest of a child is a set of dubious assumptions regarding the stability of marital families compared to non-marital families. To be clear, the state has a legitimate interest in making sure that legal decisions involving a child are made based on the best interest of that child. And there is no doubt that it is in a child's best interest to grow up in a safe and stable household. However, conditioning adoption on the marital status of the child's parent and prospective adoptive parent reflects questionable assumptions about which types of households are stable, and which are unstable. There are many different family structures that create stability for children, and the statute's one-size-fits-all approach can actively work against the benefit of a child, as it did in this case. Children can and do thrive in families with single, unmarried, or married parents. This case is an excellent example of the second category. T.G. has, by all accounts, demonstrated dedication and commitment to A.M.B. over the past decade, and for her part A.M.B. reports that she views T.G. as a father figure. There is no dispute that adoption would be in A.M.B.'s best interest. Moreover, children can and do struggle in households with married parents. Married couples may, on average, stay together in the same household longer than unmarried parents, and that may look like stability from a thousand-foot-view. But inside the home, the legal pressure for a married couple to stay together, the very thing that makes the household appear stable in a superficial sense, may sometimes lead to worse outcomes for children. More than 20% of children have witnessed domestic violence within their lifetime, often resulting in long term harm to their development. Even short of domestic violence, legally "stable" marriages may be rife with stressors for the children in those homes. Even ignoring the challenges that may arise when a married couple remains together, marriage is hardly a guarantee of relationship stability given that divorce rates have continued to rise in the United States since the Civil War. In short, using marriage as a litmus test for household stability reflects suspect assumptions about which family structures create stability, and what it means for a household to be stable in the first place. Marriage is treated as binary, where married parents check the stability box, unmarried parents do not, and all nuance is disregarded as insignificant. In cases such as this where unmarried parents provide stability, there is no tolerance for any exception. And, as a result, children suffer. The second frayed thread linking the adoption statutes to the best interest of the child goal is little more than tail-wagging-the-dog circular reasoning. It goes like this: The state grants a "constellation of benefits" to married couples related to "taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision making authority," and more. The state then uses those benefits as justification to grant yet another benefit to married couples—here, adoption rights—reasoning that because married couples are already well-supported by the state, they are in a better position to receive the new benefit. The connection between the granting of the benefit and the state's goals is thus substantially manufactured by the state, resulting in a spiral of ever-expanding benefits to married couples, leaving alternative family structures further and further behind. Perhaps the answer then is not to limit adoption benefits to married couples on the basis that the other benefits they receive make them "safe and stable," but for the legislature to expand support for alternative family structures, making them even more "safe and stable," and (from the state's point of view) suitable for adopting children. The third unraveling thread is an outdated set of values positioning marriage as the moral center of family and society. These values sometimes lurk beneath other seemingly neutral rationales for marital benefits (such as ensuring household stability), only surfacing occasionally as a reminder to us that they are still there. Sometimes these values are front and center, serving as the main justification for a marriage-based distinction under the law. To explain what is fundamentally wrong with using this set of values to justify marriage-based laws, I turn to an 1888 U.S. Supreme Court case . . . that expounded on marriage as "the foundation of the family and of society, without which there would be neither civilization or progress." At the time those words were written, the following was true about the institution of marriage. Coverture laws subordinated married women to their husbands' legal control, eliminating their legal and economic identities. As a result, a married woman's property, earnings, and labor automatically belonged to her husband. In addition, there was no legal recourse for a married woman whose husband had sexually assaulted her, which would be true well into the 1970s in many states. And neither married women nor unmarried women had the right to vote, to exercise civic influence in order to right these wrongs. Furthermore, marriage was limited exclusively to heterosexual relationships. And, marriages between people of differing races and ethnicities were widely banned. In short, if marriage was the foundation of the family and of society in 1888, there was something rotten at the core of that foundation. Times have changed, of course, but the justification that marriage is the moral core of society and the family is as weak as it ever was. With only about half of U.S. adults in a marriage, first marriages beginning later in life, and increasing divorce rates over time, Americans are spending more and more of their adult lives unmarried. Unsurprisingly then, nearly one third of children live in a single-parent home. Yet many Americans still desire to create families. Functional, stable families continue to form as alternative family structures proliferate and garner greater societal acceptance. The notion that marriage serves as the foundation of society is at best outdated, and at worst misogynistic. It provides scant justification for laws that distinguish based on marital status. 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. 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)  Ziegler 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. |
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