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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 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.
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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. Note: We are crunching Supreme Court of Wisconsin decisions down to size. The general rule for WJI's "SCOW docket" posts is that no justice gets more than 10 paragraphs as written in the actual decision, and all parts of the decision (majority, concurrences, dissents) are contained in one post. . This one is a little different, though. This time, with this case, we are doing it in three parts: first the majority decision, then the longest dissent, then the remaining two dissents. Why? Because this package of writings is extremely important: redistricting of the Legislature. In addition, the opinions are extremely long – 229 pages in all. Due to the size of the opinions, we are giving the majority opinion writer 18 paragraphs and each other opinion writer 15. Other than that, the rules remain the same. The "upshot" and "background" sections do not count as part of the paragraph restrictions because of their summary and very necessary nature. We've removed citations from the opinion for ease of reading (except, in this particular case, regarding some dictionary definitions), but may link to important cases cited or information about them. Italics indicate WJI insertions except for case names and emphasis added by the opinion writer, all of which also are italicized. The case: Rebecca Clarke v. Wisconsin Elections Commission Majority: Justice Jill J. Karofsky (51 pages), joined by Justices Ann Walsh Bradley, Rebecca Dallet, and Janet Protasiewicz Dissents: Chief Justice Annette Kingsland Ziegler (89 pages), Justice Rebecca Grassl Bradley (56 pages plus an appendix of 11 pages), and Justice Brian Hagedorn (22 pages)  Karofsky The upshot We hold that the contiguity requirements in Article IV, Sections 4 and 5 mean what they say: Wisconsin's state legislative districts must be composed of physically adjoining territory. The constitutional text and our precedent support this common-sense interpretation of contiguity. Because the current state legislative districts contain separate, detached territory and therefore violate the constitution's contiguity requirements, we enjoin the Wisconsin Elections Commission from using the current legislative maps in future elections. We also reject each of Respondents' defenses. We decline, however, to (invalidate) the results of the 2022 state senate elections. Because we enjoin the current state legislative district maps from future use, remedial maps must be drawn prior to the 2024 elections. The legislature has the primary authority and responsibility to draw new legislative maps. Accordingly, we urge the legislature to pass legislation creating new maps that satisfy all requirements of state and federal law. We are mindful, however, that the legislature may decline to pass legislation creating new maps, or that the governor may exercise his veto power. Consequently, to ensure maps are adopted in time for the 2024 election, we will proceed toward adopting remedial maps unless and until new maps are enacted through the legislative process. At the conclusion of this opinion, we set forth the process and relevant considerations that will guide the court in adopting new state legislative districts—and safeguard the constitutional rights of all Wisconsin voters. Background Following the 2020 census, the legislature passed legislation creating new state legislative district maps, the governor vetoed the legislation, and the legislature did not attempt to override his veto. Because the legislature and the governor reached an impasse, the 2011 maps remained in effect, even though they no longer complied with the Wisconsin or United States Constitutions due to population shifts. Billie Johnson and other Wisconsin voters asked this court to redraw the unconstitutional 2011 maps. In that case, we first confirmed that the 2011 maps no longer complied with the state and federal requirement that districts be equally populated (the "Johnson I" decision). Next, we identified the principles that would guide the court in adopting new maps, including the proposition that remedial maps "'should reflect the least change' necessary for the maps to comport with relevant legal requirements." We then invited the parties to submit proposed state legislative maps for our review. Of the proposed maps, we adopted the Governor's (the "Johnson II" decision). The United States Supreme Court summarily reversed that decision, holding that the Governor's proposed legislative maps violated the Equal Protection Clause of the Fourteenth Amendment because they increased the number of majority-Black districts in the Milwaukee area without sufficient justification. On remand, we adopted the legislative maps proposed by the Legislature (the "Johnson III" decision). In this case, the Clarke Petitioners filed a petition for leave to commence an original action challenging the maps adopted in Johnson III, arguing that they: (1) are an extreme partisan gerrymander; (2) do not comply with the contiguity requirements contained in Article IV, Sections 4 and 5 of the Wisconsin Constitution; and (3) were created via a process that violated the separation of powers. We granted leave in part, allowing Petitioners' contiguity and separation-of-powers claims to proceed, while declining to review the issue of extreme partisan gerrymandering. We explained that although Petitioners' extreme- partisan-gerrymandering claim presented an important and unresolved legal question, we declined to address it due to the need for extensive fact-finding. The court heard oral argument on Nov. 21, 2023. The guts We start our analysis with Article IV, Section 4 of the Wisconsin Constitution, which sets the ground rules for how Wisconsin Assembly members are elected and how their districts are to be established. . . . Section 4 imposes three separate requirements for establishing assembly districts. The districts must: (1) "be bounded by county, precinct, town or ward lines;" (2) "consist of contiguous territory;" and (3) "be in as compact form as practicable." Article IV, Section 5 sets out rules for how senators are elected and how their districts are established . . . . Section 5 imposes three requirements on senate districts. The senate districts must (1) be "single districts;" (2) be "of convenient contiguous territory;" and (3) not divide any assembly districts. *** . . . . It is immediately apparent, using practically any dictionary, that contiguous means "touching" or "in actual contact." See, e.g., Contiguous, Black's Law Dictionary, (11th ed. 2019) ("Touching at a point or along a boundary."); Contiguous, Oxford English Dictionary (2d ed. 1989) ("touching, in actual contact, next in space; meeting at a common boundary, bordering, adjoining"); Contiguous, Merriam Webster Dictionary (11th ed. 2019) ("being in actual contact: touching along a boundary or at a point"). These definitions make clear that contiguous territory is territory that is touching, or in actual contact. In other words, a district must be physically intact such that a person could travel from one point in the district to any other point in the district without crossing district lines. We find additional support for this understanding of contiguity in historical definitions and early Wisconsin districting practices. In examining historical definitions of the word "contiguous," we see that the definition has not changed since the Wisconsin Constitution was adopted. See Contiguous, A Dictionary of the English Language (1756) ("meeting so as to touch; bordering upon each other; not separate"); Contiguous, An American Dictionary of the English Language (1828) ("touching: meeting or joining at the surface or border"). Turning to early districting practices, the first state legislative districts, set forth in the Wisconsin Constitution, were all physically contiguous. Additionally, the constitution specified that if existing towns were split or new towns were created, the districts had to remain physically intact. In short, historical definitions and practices related to contiguity bolster our conclusion that contiguity does indeed require "touching," or "actual contact." Respondents assert that a district with separate, detached territory can still be contiguous—so long as the detached territory is a "municipal island" (meaning portions of municipal land separated from the main body of the municipality, usually created by annexation) and the main body of the municipality is located elsewhere in the district. The Legislature refers to this as "political contiguity." Adopting the concept of political contiguity would essentially require us to read an exception into the contiguity requirements—that district territory must be physically touching, except when the territory is a detached section of a municipality located in the same district. We decline to read a political contiguity exception into Article IV's contiguity requirements. The text contains no such exception. Both Section 4 and Section 5 include the discrete requirement that districts be composed of contiguous territory. There are no exceptions to contiguity in the constitution's text, either overt or fairly implied. True, assembly districts must also be "in as compact form as practicable" and "bounded by county, precinct, town or ward lines," but the existence of additional requirements does not constrain or limit the separate requirement that district territory be contiguous. The court then discussed two prior cases, from 1880 and 1892, that confirmed the court’s understanding of contiguity. *** None of the parties disputes that the current legislative maps contain districts with discrete pieces of territory that are not in actual contact with the rest of the district. We . . . look at the example of Assembly District 47 (in yellow) which plainly includes separate, detached parts:  The court provided additional examples with images.
*** In total, at least 50 assembly districts and at least 20 senate districts include separate, detached parts. That is to say, a majority of the districts in both the assembly and the senate do not consist of "contiguous territory" within the meaning of Article IV, Section 4, nor are they "of convenient contiguous territory" within the meaning of Article IV, Section 5. Therefore, we hold that the non-contiguous legislative districts violate the Wisconsin Constitution. *** As we declared above, the current legislative maps contain districts that violate Article IV, Sections 4 and 5 of the Wisconsin Constitution. At least 50 of 99 assembly districts and at least 20 of 33 senate districts contain territory completely disconnected from the rest of the district. Given this pervasiveness, a remedy modifying the boundaries of the non-contiguous districts will cause a ripple effect across other areas of the state as populations are shifted throughout. Consequently, it is necessary to enjoin the use of the legislative maps as a whole, rather than only the non-contiguous districts. We therefore enjoin the Wisconsin Elections Commission from using the current legislative maps in all future elections. Accordingly, remedial legislative district maps must be adopted. We recognize that next year's legislative elections are fast-approaching, and that remedial maps must be adopted in time for the fall primary in August 2024. With that in mind, the following section first describes the role of the court in the remedial process. Second, we articulate the principles the court will follow when adopting remedial maps. . . . It is essential to emphasize that the legislature, not this court, has the primary authority and responsibility for drawing assembly and senate districts. Therefore, when an existing plan is declared unconstitutional, it is "appropriate, whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure." There may be exceptions to this general rule, but we decline Petitioners' request to apply one here. Should the legislative process produce a map that remedies the contiguity issues discussed above, there would be no need for this court to adopt remedial maps. We remain cognizant, however, of the possibility that the legislative process may not result in remedial maps. In such an instance, it is this court's role to adopt valid remedial maps. The United States Supreme Court has specifically recognized the ability of a state judiciary to remedy unconstitutional legislative districts by crafting new remedial maps. And this court has exercised such authority in the past when faced with unconstitutional maps. If the legislative process does not result in remedial legislative maps, then it will be the job of this court to adopt remedial maps. *** The court then rejected and overruled the “least change” approach used in the Johnson cases (meaning that remedial maps should reflect the least change from the prior maps) because the court had failed to agree on what "least change" meant and the method was shown to be “unworkable in practice.” The following principles will guide our process in adopting remedial legislative maps. First, the remedial maps must comply with population equality requirements. State and federal law require a state's population to be distributed equally amongst legislative districts with only minor deviations. When it comes to population equality, courts are held to a higher standard than state legislatures as we have a "judicial duty to 'achieve the goal of population equality with little more than de minimis variation.'" Second, districts must meet the basic requirements set out in Article IV of the Wisconsin Constitution. Assembly districts must be (a) bounded by county, precinct, town or ward lines; (b) composed of contiguous territory; and (c) in as compact form as practicable. Senate districts must be composed of "convenient contiguous territory." Additionally, districts must be single-member districts that meet the numbering and nesting requirements set out in Article IV, Sections 2, 4, and 5. *** Third, remedial maps must comply with all applicable federal law. In addition to the population equality requirement discussed above, maps must comply with the Equal Protection Clause and the Voting Rights Act of 1965. Fourth, the court will consider other traditional districting criteria not specifically outlined in the Wisconsin or United States Constitution, but still commonly considered by courts tasked with formulating maps. These other traditional districting criteria include reducing municipal splits and preserving communities of interest. These criteria will not supersede constitutionally mandated criteria, such as equal population requirements, but may be considered when evaluating submitted maps. Fifth, we will consider partisan impact when evaluating remedial maps. When granting the petition for original action that commenced this case, we declined to hear the issue of whether extreme partisan gerrymandering violates the Wisconsin Constitution. As such, we do not decide whether a party may challenge an enacted map on those grounds. However, that does not mean that we will ignore partisan impact in adopting remedial maps. Unlike the legislative and executive branches, which are political by nature, this court must remain politically neutral. We do not have free license to enact maps that privilege one political party over another. Our political neutrality must be maintained regardless of whether a case involves an extreme partisan gerrymandering challenge. As we have stated, "judges should not select a plan that seeks partisan advantage—that seeks to change the ground rules so that one party can do better than it would do under a plan drawn up by persons having no political agenda—even if they would not be entitled to invalidate an enacted plan that did so." Other courts have held the same. It bears repeating that courts can, and should, hold themselves to a different standard than the legislature regarding the partisanship of remedial maps. As a politically neutral and independent institution, we will take care to avoid selecting remedial maps designed to advantage one political party over another. Importantly, however, it is not possible to remain neutral and independent by failing to consider partisan impact entirely. As the Supreme Court (has) recognized . . . "this politically mindless approach may produce, whether intended or not, the most grossly gerrymandered results." As such, partisan impact will necessarily be one of many factors we will consider in adopting remedial legislative maps, and like the traditional districting criteria discussed above, consideration of partisan impact will not supersede constitutionally mandated criteria such as equal apportionment or contiguity. As we await opinions from the Supreme Court of Wisconsin's new term, we've gone back to a few decisions from last term to crunch them down to size. Note: This one is a little different. WJI's "SCOW docket" pieces generally include decisions, dissents, and concurrences all in one post. This time, with this case, we are doing it in three: first the decision, then the dissent, then the concurrences. Why? Because this package of writings is extremely important for future ballot questions regarding state constitutional amendments. Besides that, the SCOW decisions are unusually long – 111 pages in all, not counting the cover sheets. Plus, it's a case that WJI cares a lot about. Instead of allowing each writing justice 10 paragraphs, we are giving the majority opinion writer 18 and each other opinion writer 15. Other than that, the rules remain the same. The "upshot" and "background" sections do not count as part of the paragraph restrictions because of their summary and very necessary nature. We've removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names and emphasis added by the opinion writer, all of which also are italicized. The case: Wisconsin Justice Initiative, Inc., et al. v. Wisconsin Elections Commission, et al. Majority opinion: Justice Brian Hagedorn (42 pages), joined in full by Chief Justice Annette Ziegler and Justices Patience Roggensack and Rebecca Grassl Bradley, joined in part by Justices Rebecca Frank Dallet and Jill J. Karofsky Concurrence: Grassl Bradley (14 pages), joined by Ziegler and Roggensack Concurrence: Dallet (32 pages), joined in full by Karofsky, joined in part by Justice Ann Walsh Bradley Concurrence: Hagedorn (9 pages), joined in part by Dallet Dissent: Walsh Bradley (14 pages)   Grassl Bradley Grassl Bradley Concurrence I join the majority opinion and write separately to explain why the "every essential" test is incompatible with the political question doctrine. As the majority holds, whether a ballot question states "every essential" of a proposed amendment is non-cognizable. Nevertheless, three justices cast themselves as legal writing professors with the power to grade the legislature's work. Justice Rebecca Frank Dallet, joined by Justice Jill J. Karofsky, writes in concurrence to give the legislature's work a passing grade, while Justice Ann Walsh Bradley, in dissent, gives the legislature an F. This court lacks the authority these justices would usurp from the legislature. The "every essential" test is incompatible with the political question doctrine for at least two reasons. First, Article XII, Section 1 of the Wisconsin Constitution assigns the legislature, not the judiciary, the power to determine the manner by which a proposed amendment is submitted to the people. It states, in relevant part: “[I]t shall be the duty of the legislature to submit such proposed amendment . . . to the people in such manner and at such time as the legislature shall prescribe; . . . provided, that if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately.” Self-evidently, while this provision requires the legislature to submit a proposed amendment to the people, it also gives the legislature, not the judiciary, the power to determine how that submission occurs. The constitution imposes only one textually-expressed limitation on the legislature's power to determine the manner of submission: "if more than one amendment be submitted," the people must be able to vote on each separately. The judiciary does not have the authority to compel the legislature to exercise its power over the manner of submission in a particular way. As explained more thoroughly below, this court possesses the power to determine whether a proposed amendment was even submitted to the people, but such a claim is distinguishable from a complaint about an unartful manner of submission. This case accordingly presents a separation of powers issue. As one amicus curiae explains, "[i]f affirmed, the circuit court's decision could force the [l]egislature to use new language that no longer expresses the [l]egislature's desired meaning. . . . [T]he [l]egislature presumptively chose those words for a reason[.]" Challenges to the manner of submission are therefore "beyond the purview of judicial review" because they present purely political questions. The desire of Justices Ann Walsh Bradley, Dallet, and Karofsky to entertain these political questions would likely spawn "defensive" ballot question drafting. The legislature could, for example, quote the proposed amendment verbatim on the ballot, perhaps satisfying the values-based concerns of the aforementioned justices. The Wisconsin Constitution, however, does not impose such a cumbersome requirement. Second, the "every essential" test is not a "manageable standard[]" by which the judiciary could objectively evaluate the manner of submission. The judicial power vested in this court by Article VII, Section 2 of the Wisconsin Constitution, like the judicial power vested in the United States Supreme Court, "is the power to act in the manner traditional for English and American courts. One of the most obvious limitations imposed by that requirement is that judicial action must be governed by standard, by rule." These standards and rules must be "'principled, rational, and based upon reasoned distinctions' found in the . . . law[]." Otherwise, "intervening courts—even when proceeding with best intentions—would risk assuming political, not legal, responsibility[.]" Whether a particular characteristic of a proposed amendment is "essential" sounds a lot like the "I know it when I see it" test. The judiciary, however, must make decisions based on reason, not instinct. *** Recognizing the inherent vagueness of the "every essential" test, Justice Dallet "acknowledge[s] . . . that this rule doesn't always provide clear answers." In actuality, the "every essential" test is incapable of providing any answers whatsoever. The test is based purely on subjective perception, not objective rule. As Justice Dallet reasons, "[b]ecause a summary . . . will always be incomplete and isn't meant to take the place of the text of a proposed amendment, judgment will always be required. But that is okay. We trust judges to make judgment calls all the time[.]" Her view invites judicial overreach because it is based on the rule of judges rather than the rule of law. Embracing a standardless test would empower a single circuit court judge in a single county to toss the results of a statewide election based on little more than subjective predilections. This court would become the final arbiter of every proposed constitutional amendment, without any express grant of constitutional authority to second guess the legislature's work. As the majority notes, only once in Wisconsin's 175-year history has this court declared a proposed amendment was not ratified based on a challenge to the wording of a ballot question—despite the Wisconsin Constitution having been amended nearly 150 times. *** Similar to Justice Dallet, Justice Ann Walsh Bradley never defines an "essential," instead concluding "[b]y any definition of the word" the ballot question in this case was legally inadequate. The definition, however, matters a great deal, largely because the difficulty in defining the word demonstrates that judges should not be defining it in the first place. *** Unlike the "every essential" test, the counterfactual test this court adopts is consistent with the text of Article XII, Section 1 of the Wisconsin Constitution and is justiciable. While the legislature has the power to decide the manner by which a proposed amendment is submitted to the people, the legislature has the "duty . . . to submit such proposed amendment[.]" That duty is not fulfilled when the ballot question misidentifies the proposed amendment with counterfactual information. A challenge alleging the presence of counterfactual information takes issue not with the "manner" of submission but with whether submission even occurred. Applying the counterfactual test therefore does not usurp the legislature's authority but rather ensures the legislature has fulfilled its constitutional duty. *** The counterfactual test is straightforward and capable of judicial review: Did the ballot question contain clearly false information? Whether a statement is true or false is simply a factual determination, and while factual determinations are not always easy, they do not turn on personal beliefs. A factual determination is difficult only to the extent that evidence is lacking or conflicting. In contrast, the "every essential" test is largely indeterminate, even if the evidence is clear, precisely because it requires a judge to form a political opinion. *** . . . . Justice Dallet suggests that determining whether a test is objective is itself a subjective determination and therefore cannot be done properly. Obviously, subjectivity and objectivity exist on a spectrum, just like the colors white and grey. Just as a reasonable person can look at a color and determine whether it is white or grey, a reasonable person can look at a legal test and determine whether it is subjective or objective. No one can seriously question the objectivity of the counterfactual test, even if it may be difficult to apply in some cases (although not in this one), or the subjectivity of the "every essential" test. The former is indeterminate only to the extent a factual determination is impossible, but the latter is indeterminate even when the facts are undisputed. Notably, Justice Dallet never argues the "every essential" test will constrain judges acting in good faith to the same extent as the counterfactual test. *** Unlike the "every essential" test endorsed by three justices, the counterfactual test safeguards democracy by preserving the prerogatives of the people's representatives in the legislature to decide political questions. Three justices would instead supplant the legislature's constitutionally assigned role, arrogate the power to set aside the not- particularly-close results of a lawfully-conducted election, and embrace a judicially invented test never before applied in the history of Wisconsin. None of these justices defines with any particularity the test they propose to determine whether such an undemocratic remedy is warranted, much less identify the source of their authority to impose it. Without elaboration on the "every essential" test, judges are licensed to inject their political will into the analysis, potentially substituting their will for the will of the people. Ironically, these justices suggest that if the judiciary is denied the power to discard election results at will, democracy will suffer. Their concerns arise from both a misunderstanding of the constitutional purpose of a ballot question and a distrust of voters. For example, the dissent complains, "[t]hose voters who do not research a proposed amendment beforehand will see the ballot question and only the ballot question prior to casting their votes." Dissent, ¶189. The constitutional purpose of a ballot question, however, is not to educate voters. As indicated by the historical analysis discussed in the majority opinion, a ballot question merely identifies the particular proposed amendment the voters will decide to ratify——or not. Second, as the Wisconsin Elections Commission explains, "[v]oters are expected to review . . . election notices and apprise themselves of public debate, and educate themselves on the substance and implications of a proposed amendment." By analogy, a ballot for President of the United States does not describe the candidates or their platforms. Voters are trusted to inform themselves.  Dallet Dallet Concurrence
I agree with the majority that Marsy's Law was validly adopted because the amendment complied with Article XII, Section 1's requirements that proposed constitutional amendments be "submit[ted] to the people" and not contain "more than one amendment." Evaluating whether Marsy's Law was submitted to the people requires us to balance two competing interests reflected in Article XII, Section 1: (1) the legislature's authority to specify the time and manner in which amendments are to be submitted, and (2) the people's right to evaluate and vote on proposed constitutional amendments. Doing so leads to the conclusion that Marsy's Law was submitted to the people because the summary of the amendment that appeared on the ballot accurately summarized the significant changes the amendment would make to the constitution. The majority uses a similar interest-balancing approach, but arrives at a rule that is too narrow. And it does so only after a ten-page digression extolling the virtues of originalism, which it then tacitly abandons as futile. Because I reject both originalism and the majority's narrow conception of what it means for a proposed amendment to be submitted to the people, I respectfully concur. *** I disagree with (the court’s adherence to originalism) for three reasons. First, the majority's claim that originalism is somehow our settled approach to constitutional interpretation is incorrect. In fact, many of our recent cases use a more inclusive approach to constitutional interpretation that considers more than merely text and history. Second, the majority's two defenses of originalism—(1) that originalism is simply how we interpret any written law, and (2) that originalism constrains judges to their proper role by providing a basis for decisions different than a judge's personal views—are both unconvincing. In my view, a more pluralistic method is needed to interpret faithfully the Wisconsin Constitution (or the United States Constitution for that matter). Under such an approach text and history of course matter, but so do precedent, context, historical practice and tradition. And third, an earlier court's choice of an interpretive methodology like originalism does not bind later courts to use that same methodology. *** (The majority’s claim that the court has consistently used and has doubled down on originalist interpretation) is incorrect. In fact, in a number of recent cases the court has taken a more pluralistic approach to constitutional interpretation that takes into account more than just text and history. (Citing cases) (T)hese decisions and others like them were criticized by some justices as non-originalist, or at least not sufficiently originalist. Thus, the majority cannot claim that originalism is somehow our consensus approach to constitutional interpretation. *** Most of our constitution . . . was written broadly, and for good reasons. Indeed, the Wisconsin Constitution—now the sixth oldest in the nation—came about only after a prior, more specific proposed constitution was rejected by the people, largely because it tried to settle too many then-contemporary policy disputes. No doubt part of the reason our constitution has endured so long is because its breadth gave the people of our state the room needed to adapt to new problems. The breadth and adaptability of our constitution is evident in its many clauses declaring broad principles in general terms. The Wisconsin Constitution contains, for example, a guarantee of "a certain remedy in the law for all injuries, or wrongs," a prohibition against "control of, or interference with, the rights of conscience," and a pronouncement that "[t]he blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles." And our framers recognized that by writing these provisions broadly it would be up to future judges and interpreters to decide what they meant. As the state constitutional convention's president put it, the framers of our constitution sought to declare "those great principles which characterize the age in which we live, and which, under the protection of Heaven, will—nay, must—guard the honor, promote the prosperity, and secure the permanent welfare of our beloved country." They weren't trying to write specific rules settling difficult questions for all time. Instead, they were—like the framers of the United States Constitution—trying to "provide a political platform wide enough to allow for considerable latitude within which future generations could make their own decisions." Simply observing, as the majority does, that the constitution was written down does not demonstrate that originalism is the best way to make those decisions. *** Dallet then describes why the search for original meaning is “almost always fruitless”: What these limited sources (on Wisconsin's two constitutional conventions) reveal is not one single, universally accepted original public meaning of the Wisconsin Constitution. Instead, they demonstrate that the questions that consumed the drafters of the Wisconsin Constitution—whether the document would retain the failed 1846 constitution's provisions prohibiting banking, guaranteeing property rights to married women, and creating an elected judiciary, for example—tell us nothing about how to resolve contemporary cases. They also show that, when it came to the document's more open-ended provisions, the drafters left little evidence of what they thought these clauses meant. The same is true of many of the constitution's more specific provisions like the one about how to amend the constitution at issue in this case, Article XII, Section 1. As the majority acknowledges, there is no evidence from the constitutional convention or ratification debates that sheds any light on its meaning. *** . . . . (A)s the preceding discussion demonstrates, what originalism requires judges to identify—a single, objective original public meaning—is something we cannot know. And even if we do somehow identify one original public meaning, like the majority's abstract insight about Article XII, Section 1, it tells us nothing about how to resolve real cases. Without the objective answers it promises, originalism is no constraint on judges at all. Constitutional interpretation is never as simple as just "apply[ing] the constitution as it is written." That is because the constitution forces us to choose between competing interests all the time, and value-neutral judging is therefore impossible. Take, for example, Article I, Section 11 of the Wisconsin Constitution, which provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated." What is reasonable when it comes to drone surveillance or searching cell phones isn't dictated by any original understanding. There could never be an "original understanding" on these topics because they were unimaginable at the time our constitution was written. Moreover, evaluating whether a search is "unreasonable" always requires a value judgment, balancing the interests of the government against an invasion of privacy. So too in deciding what it means for a constitutional amendment to be "submit[ted] to the people." Finally, even if the original public meaning of many provisions of the Wisconsin Constitution were discoverable, applying it would lead to intolerable results. As one scholar said, "[t]he only kind of originalism that is reasonably determinate leads to conclusions that practically no one accepts." For example, Article I, Section 9 of the Wisconsin Constitution provides that "[e]very person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws." There is no escaping that, as the use of male pronouns demonstrates, the original public meaning of this provision and many others in our original constitution didn't include women. The delegates to the constitutional convention were all men, and as mentioned previously, part of the reason the proposed 1846 constitution was rejected was because it guaranteed a modicum of autonomy to women through its provisions about married women owning property. Yet we would never say today that, because the original public meaning of this provision didn't include women, women are therefore not entitled to a "remedy in the laws." And that's not the only example. Take Article I, Section 18's guarantee of "[t]he right of every person to worship Almighty God according to the dictates of conscience." At the 1847-48 convention, a motion to strike the words "Almighty God" on the grounds that the people had the right to worship whomever or whatever they wanted was defeated as "too radical a doctrine for our God- fearing forefathers." Although this supports the conclusion that the original public meaning of Article I, Section 18's guarantee of religious liberty was inapplicable to those who didn't share our founders' belief in "Almighty God," even those who claim to be originalists would not reach such a repellent conclusion today. *** The majority disagrees with WJI's view that Ekern imposed a constitutional requirement that ballot language contain "every essential" of a proposed amendment. According to the majority, "the relevant constitutional question is whether the proposed amendment was, at a basic level, submitted to the people for ratification." And the majority concludes that the only way in which an amendment could flunk that test is "in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment." Because the ballot language about Marsy's Law does not fit within that narrow category, the majority concludes that the amendment was validly adopted. Before getting to why I think the majority's proposed rule is too narrow, it's important to note one thing. Despite the majority's purported allegiance to originalism, this analysis is anything but originalist. The text of Article XII, Section 1 doesn't tell us what it means for an amendment to be "submit[ted] to the people." Indeed, it's plausible to read the text as allowing the legislature to do whatever it wants when it comes to describing constitutional amendments on the ballot. And knowing that early legislatures used to provide no descriptions on the ballot at all doesn't help us answer whether an amendment submitted with a misleading or incomplete description is submitted to the people either. *** The problem is that the new rule the majority derives from Ekern and our other cases regarding the submission-to-the-people requirement is still too narrow. Although the majority is certainly correct that a "fundamentally counterfactual" ballot question doesn't comply with the constitution, that's not the only way to violate the requirement that an amendment be submitted to the people. An amendment that is described in a way that is so incomplete as to be misleading is also not submitted to the people. For example, if the legislature had described Marsy's Law on the ballot as merely "an amendment to expand the definition of 'victim' contained in Article I, § 9m of the Constitution," that description wouldn't violate the majority's rule. This statement is accurate, it's not fundamentally counterfactual. But the description would also be misleading because Marsy's Law made many more significant changes to Article I, Section 9m. And if the people voted to adopt the amendment in reliance on such a description, it can't be said that all of those more significant changes were submitted to the people for ratification. This, I think, is what Ekern was referring to when it said the ballot must describe "every essential" of the proposed amendment. Thus, I conclude that a ballot description, if the legislature chooses to provide one, must accurately summarize the significant changes the proposed amendment would make to the Constitution. I acknowledge, of course, that this rule doesn't always provide clear answers. Because a summary that appears on the ballot will always be incomplete and isn't meant to take the place of the text of a proposed amendment, judgment will always be required. But that is okay. We trust judges to make judgment calls all the time, and doing so in this context is the only way to preserve both the legislature's authority to specify the manner in which amendments are to be submitted to the people and the right of the people to decide whether to change the constitution. Indeed, the majority's approach also requires judgment to determine what questions are "fundamentally counterfactual." As the use of the word "fundamentally" implies, superficially counterfactual ballot questions would pass the majority's test. But the majority offers no principled way of distinguishing between superficially counterfactual and "fundamentally" counterfactual ballot questions. In this case, the legislature's summary was sufficient and Marsy's Law was thus validly submitted to the people. Although WJI points to some of the amendment's particulars that weren't described specifically in the ballot language, as I said before, a summary always leaves some details out. The legislature's description of Marsy's Law is accurate, and the expanded definition of "victim," and arguable changes to the state constitutional rights of the accused and this court's jurisdiction weren't so significant that they needed to be described on the ballot. In short, the legislature gave voters the gist of Marsy's Law, and in an accurate way, and that is all that is required. Accordingly, I respectfully concur. The SCOW docket: Giving the Legislature free rein on constitutional amendments, part 2 (the dissent)10/25/2023
As we await opinions from the Supreme Court of Wisconsin's new term, we will go back to a few decisions from last term and crunch them down to size. Note: This one is a little different. WJI's "SCOW docket" pieces generally include decisions, dissents, and concurrences all in one post. This time, with this case, we are doing it in three: first the decision, then the dissent, then the concurrences. Why? Because this package of writings is extremely important for future ballot questions regarding state constitutional amendments. Besides that, the SCOW decisions are unusually long – 111 pages in all, not counting the cover sheets. Plus, it's a case that WJI cares a lot about. Instead of allowing each writing justice 10 paragraphs, we are giving the majority opinion writer 18 and each other opinion writer 15. Other than that, the rules remain the same. The "upshot" and "background" sections do not count as part of the paragraph restrictions because of their summary and very necessary nature. We've removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names and emphasis added by the opinion writer, all of which also are italicized. The case: Wisconsin Justice Initiative, Inc., et al. v. Wisconsin Elections Commission, et al. Majority opinion: Justice Brian Hagedorn (42 pages), joined in full by Chief Justice Annette Ziegler and Justices Patience Roggensack and Rebecca Grassl Bradley, joined in part by Justices Rebecca Frank Dallet and Jill J. Karofsky Concurrence: Grassl Bradley (14 pages), joined by Ziegler and Roggensack Concurrence: Dallet (32 pages), joined in full by Karofsky, joined in part by Justice Ann Walsh Bradley Concurrence: Hagedorn (9 pages), joined in part by Dallet Dissent: Walsh Bradley (14 pages)  Walsh Bradley The dissent
Ballot question challenges have been few and far between in the history of our state. Such a challenge reached this court in State ex rel. Ekern v. Zimmerman (1925). There, the court established a test for our review of a ballot question challenge: "it must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment." Yet rather than respecting the precedent of a nearly century-old unanimous opinion, the majority charts a new course not requested by either party. Instead of applying the test established in Ekern, the majority conjures its own test, never before stated, much less applied. Specifically, the majority sets forth that "[a] ballot question could violate [the] constitutional requirement only in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment." In addition to being created by the majority from whole cloth, this new test is unnecessary for the simple reason that we already have a test from Ekern. The majority arrives at its newly discovered test by tossing precedent to the wind and engaging in an unconvincing search for the "original meaning" of the state constitution's command that the legislature "submit" a proposed amendment to the people. As Justice Dallet's concurrence aptly explains, the endeavor of divining the "original meaning" of a constitutional provision is largely a futile endeavor. But even setting this aside, the majority's analysis rests on an infirm foundation. It erroneously dismisses the Ekern test, and instead creates and applies a newly-minted test, resulting in an overly permissive approach that risks giving the legislature carte blanche in crafting ballot questions. I would follow our precedent set forth in Ekern. Applying the Ekern framework, I determine instead that the ballot question here failed to convey "every essential" of the amendment as is required. From the ballot question only, voters would have no idea that the proposed amendment diminishes the rights of criminal defendants in addition to bolstering the rights of crime victims. In my view, the diminution of a defendant's rights previously protected by law, constitutes an "essential" element of the amendment. Because the ballot question failed to accurately represent an essential element of the law to the voters who approved it, I respectfully dissent. *** This court in Ekern set forth what the parties refer to as the "every essential" test. It requires that a ballot question "must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment." As the court of appeals observes in its certification in the present case, this court has not expanded on what it really means for a ballot question to include "every essential" and this case presents an opportunity for the court to explain and apply this court's statement in Ekern. But instead of taking that opportunity, the majority simply dispenses with Ekern. In the majority's view, the "every essential" test is no test at all, but is instead just an "explanatory statement." Such a characterization would be news to the court in State ex rel. Thomson v. Zimmerman (1953), who noted (although did not decide) a controversy over whether a ballot question "fairly comprised every essential of the amendment." And it most certainly is news to the parties here, who both argued their positions in terms of the "every essential" framework Ekern set forth. *** Of note is that no party here asked us to overrule Ekern. Indeed, WEC argued within the confines of Ekern that the ballot question at issue provided "every essential" of the amendment. We have thus been provided no special justification for overruling Ekern. As such, I would maintain the Ekern test. Doing so not only respects the precedent established by the courts who came before us, but in this case furthers the aims of democratic governance. Making sure that a ballot question includes "every essential" of an amendment ensures that the public is informed and can "vote intelligently." This is critical to maintaining a democracy. *** . . . (T)he ballot question here fails. I begin my analysis with the essential fact, recognized by the circuit court, that the victim's rights amendment does more than just increase the rights of crime victims. The majority fails to acknowledge this. Instead, it opines: "all of the provisions of Marsy's Law relate to expanding and defining victim's rights and tend to effect and carry out this general purpose." Several provisions of the amendment do, in fact, decrease the rights afforded to criminal defendants. For example, the amendment limits the rights of criminal defendants in the following ways:
*** Shouldn't the voters be informed that a constitutional amendment diminishes the rights of criminal defendants before voting on it? In light of these provisions, it is apparent that the amendment serves dual "purposes," both expanding the rights of victims and diminishing those of the accused. By any definition of the word, such a change is an "essential" aspect of an amendment. Accordingly, a voter would need to be informed of the change before voting "intelligently." Its lack of inclusion has the significant potential to mislead voters as to the consequences of their votes. *** . . . (T)he ballot question is the only text that all voters are guaranteed to see. Those voters who do not research a proposed amendment beforehand will see the ballot question, and only the ballot question, prior to casting their vote. This gives the framing provided by the ballot question considerable power in shaping how voters think about and understand the question presented. That ballot question language possesses this power to frame the issue in turn dictates that the language provide an accurate picture of the measure that is placed before the voters. To this end, we should maintain the vitality of judicial review in the ballot question context, rather than essentially surrendering our responsibility for judicial review to the legislature. Democracy works best when voters are fully informed. The majority opinion takes a step backward in this endeavor. |
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