 Photograph of the Wisconsin Supreme Court's courtroom by Margo Kirchner By Alexandria Staubach
Arguments at last week’s Wisconsin Supreme Court hearing in Clarke v. Wisconsin Elections Commission, the most recent case to challenge gerrymandered districts across Wisconsin, beg the question, have we been here before? In Clarke, the court agreed to hear two of five issues raised by the petitioners:
If you read or heard anything about the court’s Nov. 21 hearing, the report likely included some reference to Justice Rebecca Grassl Bradley’s position that 1) the contiguity argument presented in Clarke was already decided by the 2021-2022 Johnson cases (the last legal go-round about the current maps, which resulted in three separate opinions by the Wisconsin Supreme Court), and 2) this case wouldn’t be before the court but for its new majority. Grassl Bradley interjected at seemingly every feasible opportunity to assert that this case would not be before the court absent the election of Justice Janet Protasiewicz and threw in mention of Protasiewicz’s campaign comments that the maps are rigged. Another justice asked if Grassl Bradley was in fact arguing the case. Article IV, section 4 of the Wisconsin Constitution requires that Assembly districts “consist of contiguous territory and be in as compact form as practicable.” Numerous Assembly districts include “islands” or detached pieces that are located completely within other districts, with no physical connection. However, the detached pieces are generally annexed to a municipality that has a physical connection to other parts of the district. The question in Clarke is whether these detached pieces are considered contiguous and satisfy the Constitution's requirements. Grassl Bradley referenced, and Taylor Meehan, counsel for the Republican Legislature, cited by paragraph where and when, the contiguity argument in Clarke was disposed of in the 2022 Johnson III decision (the final Johnson opinion, in which the current maps were adopted by the court). So let’s examine Grassl Bradley’s claim that the court already decided the issue of contiguity. The word “contiguous” appears five times in the 23-page Johnson III opinion. Nearly every mention is a recitation of the requirements of the Wisconsin Constitution regarding legislative districting. According to Meehan and accepted by Grassl Bradley at argument, the Johnson III paragraph that purportedly decided the contiguity argument reads as follows: ¶70 The Legislature has satisfied the remainder of Wisconsin’s constitutional requirements. The assembly districts are contiguous and sufficiently compact. Wis. Const. art. VI, sec. 4. Both senate and assembly maps include single member districts, and assembly districts are not divided in the formation of senate districts. Wis. Const. art. IV, secs. 4, 5. In all, the Legislature’s senate and assembly maps comply with the Wisconsin Constitution. This paragraph comes at the end of the opinion but is not part of the court’s conclusion. Johnson III’s conclusion was that insufficient evidence was presented “to justify drawing state legislative districts on the basis of race,” and that the maps proposed by Gov. Tony Evers and parties other than the Legislature were racially motivated. Paragraph 70, as relied on by Meehan in arguing against the Clarke petitioners, supposedly disposes of unargued requirements of the Wisconsin Constitution simply by saying that in the court’s view, the maps at issue in Johnson III are constitutional. Is this passing reference sufficient to resolve the contiguity issue? Have we been here before? Grassl Bradley and other conservative justices are using the principle of issue preclusion to say, “yes,” contiguity has been resolved and is now barred in the new case. For issue preclusion to apply, Wisconsin law requires identity between parties in the previous case and the current case and that the issue or fact be actually litigated and determined in the previous case. In this context, identity between parties would require that the same parties or interests who initiated the Johnson case match those in the Clarke case. In Clarke, the petitioners are 19 Wisconsin voters, none of whom was a party in the Johnson case. Some of the Clarke petitioners share counsel with those in the Johnson case, but counsel are not parties. Additionally, some of the respondents, such as the Wisconsin Election Commission, are shared between the two cases, but this should not be sufficient to create “identity” of parties under Wisconsin law. Further, while maps at issue in Clarke are the same maps adopted in Johnson III, contiguity was not the issue litigated in the Johnson case. At issue in Johnson was how maps should be drawn when the legislative process failed and to what extent legislative districts could be drawn giving attention to race. Passing mention of contiguity, according to the Clarke petitioners’ brief, is not sufficient for finding that the issue was litigated under Wisconsin law, and the petitioners contend that “no party in Johnson claimed that any existing or proposed remedial districts were noncontiguous” and that “in their voluminous briefing in Johnson, the parties hardly mentioned contiguity.” The Wisconsin Supreme Court took jurisdiction of the Clarke case on Oct. 6 without mentioning issue preclusion. However, a dissent written by Chief Justice Annette Ziegler, joined by Grassl Bradley and Justice Brain Hagedorn, did. Ziegler wrote that Wisconsin law requires the petitioners in this case to “live with” the Johnson decision and that litigation involving the same maps “should not be allowed to prevail.” In a separate dissent, written with reference to Alice in Wonderland as an underlying theme, Grassl Bradley, joined by Ziegler, wrote that “(r)edistricting litigation concluded — or at least it should have — in April 2022, with this court’s selection of new maps as a remedy for malapportionment.” Whether and to what extent the now-minority conservative justices will rely on issue preclusion in any decision in the case remains to be seen, but at least in the eyes of the petitioners and the court’s current majority, we have not been here before.
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By Margo Kirchner
Wisconsin Justice Initiative and the Wisconsin Fair Maps Coalition (FMC) on Wednesday jointly filed a motion seeking leave to submit an amicus curiae (friend of the court) brief in the redistricting case before the Wisconsin Supreme Court. The case concerns whether the present voting-district maps for the Wisconsin Legislature violate the Wisconsin Constitution’s requirements regarding contiguous districts and separation of powers between the three government branches. Districting maps are to be adjusted every 10 years after census results are published. The present districting maps were adopted by the Supreme Court in spring 2022 after the legislative process failed. Gov. Tony Evers vetoed redistricting maps passed by the Legislature, and the Legislature failed to override the veto. The Wisconsin Supreme Court first adopted a set of maps that were invalidated by the U.S. Supreme Court. The Wisconsin Supreme Court then adopted the same maps from the Legislature that Evers had vetoed. When vetoing those maps, Evers referenced how highly partisan they were. He said he’d promised he would never sign gerrymandered maps and his veto delivered on that promise. In their proposed brief, WJI and FMC argue from the viewpoint of the overwhelming number of Wisconsin citizens who demand nonpartisan district maps and whose voices are not being acknowledged by the Legislature. FMC is an umbrella organization of numerous local and regional fair-maps activist groups. WJI and FMC contend that the court’s adoption of the current maps constituted an impermissible judicial override of Evers’ veto, in violation of separation-of-powers requirements in the state constitution. WJI and FMC further argue that in crafting any new set of maps as a remedy, the court must take into account the partisan effects of those maps and the people’s demand for nonpartisan maps. WJI and FMC argue in their brief that by failing to consider the partisan effects of the maps it chooses, as the court did in 2022, the court actually acts in a partisan manner. Wisconsin Manufacturers & Commerce also seeks leave to file an amicus brief. Notably, WMC states in its motion that it has a “strong interest” in the case because “WMC and its members have forged relationships with the representatives elected pursuant to the current maps” and “(m)embers of WMC have relied on political vows made by those same representatives.” Other individuals and organizations seeking leave to file amicus briefs:
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. By Alexandria Staubach
A rule petition to the Wisconsin Supreme Court, brought by the State Bar of Wisconsin, sought to create a new category of continuing legal education: the “Diversity, Equity, Inclusion, and Access” (DEIA) credit. The Supreme Court denied the petition without giving it a hearing. Justice Rebecca Grassl Bradley authored a 33-page concurrence, joined in full by Justice Patience D. Roggensack and in part by Chief Justice Annette K. Ziegler, which railed against the validity of DEIA. Often, the concurrence cities dubious and deeply partisan scholarship in addition to a Justice Clarence Thomas concurrence to a recent U.S. Supreme Court decision gutting the remnants of affirmative action in college admissions. In follow up to the SCOW docket report on that order and concurrence, WJI examines a few of the authors and their writings cited by Grassl Bradley to support her argument that “DEIA courses damage human dignity, undermine equality, and violate the law.” Grassl Bradley: “Various institutions promote a lie designed to divide: ‘human beings are defined by their skin color, sex, and sexual preferences; that discrimination based on those characteristics has been the driving force in Western civilization; and that America remains a profoundly bigoted place, where heterosexual white males continue to deny opportunity to everyone else.’ ” The cite: Heather Mac Donald, The Diversity Delusion: How Race and Gender Pandering Corrupt the University and Undermine our Culture 2 (2018). The author: Mac Donald is a conservative political commentator, attorney, and author. She is a fellow at the conservative think tank Manhattan Institute for Policy Research and made a name for herself in opposition to criminal justice reform. She advocates that overemphasis on and education around white privilege and toxic masculinity on college campuses is driving racial divisiveness. She blames the “academic left and its imitators in politics and the mass media” for racial divisiveness in the U.S. and blames the left for emboldening white supremacists. Mac Donald dismisses police racism in favor of the “far larger problem: black on black crime,” and has argued in favor of racial profiling in policing. Mac Donald is deeply critical of the Black Lives Matter movement and accused President Barak Obama of “attacking the very foundation of civilization” in lending credibility to the movement. Grassl Bradley: “Nice-sounding euphemisms aside, DEIA initiatives often presuppose the existence of certain ‘universal values,’ which are not actually universally shared in an effort to stifle debate.” The cite: Ben Shapiro, How to Debate Leftists and Destroy Them: 11 Rules for Winning the Argument 22 (2014). The author and his rules: Shapiro is a conservative political commentator, author, media personality, podcast host, and attorney. In 2004 he graduated from college at UCLA and published his first book, Brainwashed: How Universities Indoctrinate America’s Youth, which argues that the ideological left generally control universities and that professors are intolerant of non-left opinions. He later graduated from Harvard Law School. Shapiro served as the editor-at-large for Breitbart News from 2012-2016. He is the author of articles with titles including “5 Times Hillary and Bernie Pandered to Blacks During the Last Debate,” “Antonin Scalia’s Death Could Mark the End of Constitution,” and “The Real Reason Republicans Love America More than Democrats.” His “11 Rules” discussed in the 2014 pamphlet begin with the following four: Rule #1: Walk Toward the Fire – “The left knows this is war. And they know you are the enemy. You will be castigated. You will get punched. That’s the way it will go because that’s how the left wins: through intimidation and cruelty. You have to take the punch, you have to brush it off. You have to be willing to take the punch.” Rule #2: Hit First – “Don’t take the first punch. Hit first. Hit hard. Hit where it counts.” Rule #3: Frame Your Opponent – “You’ve researched your opponent; you’ve game planned him. You know he’s going to call you a racist, because he always calls his opponents racists. So hit him first by pointing out his vicious tactic.” Rule #4: Frame the Debate – “The left is expert at framing debates They have buzzwords they use to direct the debate toward unwinnable positions for you. They are tolerant, diverse, fighters for social justice, if you oppose them, by contrast you are intolerant, xenophobic, and in favor of injustice. All these terms are – to be polite – a crock, if considered as absolute moral values … The left’s use of magical buzzwords places you in a corner, against supposed universal values that aren’t universal or universally held. It’s important that you neuter those buzzwords quickly, because otherwise you will be arguing against nonsense terms that can be used against you.” Grassl Bradley: “ ‘Ultimately identity politics should be rejected … because it poses a threat to republican self-government by corroding patriotic ties, fostering hatred, promoting cultural separatism, and demanding special treatment rather than equality under the law.’ ” The cite: David Azerrad, “The Promise and Perils of Identity Politics,” First Principles Essays, Jan. 23, 2019, at 1. The author: Azerrad holds a Ph.D. in politics from the University of Dallas. He has taught courses on conservative and progressive political thought at American University and is a former staffer at the conservative think tank The Heritage Foundation. In the Spring of 2021 Azerrad gave a talk at St. Vincent College on “Black Privilege and Racial Hysteria in Contemporary America,” in which he (in his own words later discussing his talk) “denounced the widespread system of preferential treatment that benefits our fellow black citizens, including the prohibition on noticing said system” and “criticized the excessive praise showered on mediocre black composers, scientists, and writers from the past.” In a September 2022 talk at the National Conservatism Conference he discussed “the LGBTQ agenda and the damage it has done to American families,” labeled Millenials and members of Generation Z as “the most coddled, mentally unstable, historically ignorant, lowest testosterone, and woke generation in history,” and said that “the left is not sending their best” but instead is represented by “incompetent diversity hires” and “overweight, ugly, mentally unstable, cross-dressing, low-IQ people.” By Gretchen Schuldt A dispute over the right of an unmarried couple to adopt a child is at the center of the first case the state Supreme Court will hear in September. Most of the case, which bypassed the Court of Appeals, is confidential. But one document, a reply brief filed by attorneys representing the unmarried couple, is available. It names as a defendant Ashland County Circuit Judge Kelly J. McKnight, who rejected an unmarried couple's request to adopt a child. The couple, referred to as A.M.B. and T.G. in the brief, are appealing. McKnight, wrote the couple's lawyers, John R. Carlson and Carla J. Smith, "chooses to focus first and foremost on 'protecting marriage' – an institution in which the child does not even participate." The judge "obfuscates the core intent and interest of the legislature – the best interest of the child." McKnight, who as a judge is a state official, is represented by Assistant Attorney General Lynn K. Lodahl. "The Legislature makes its intent clear in the first few sentences of Chapter 48 (the Children's Code) – 'the best interests of the child or unborn child shall always be of paramount consideration," the lawyers wrote, emphasizing the key words. "A sentence with no qualifications, conditions, or exceptions." The law identifies the secondary, qualified goal of preserving the unity of the family "whenever appropriate," they said. "And the word 'traditional' never appears anywhere in the legislative intent section." M.M.C., as the child is called in the brief, never had a relationship with her biological father and his parental rights were terminated. There is no ability to preserve the unity of M.M.C.'s family, Carlson and Smith said. "The legislative intent of 'preserving the unity of the family' should not be mistaken for what the Court tried to do – force two unwilling participants into a marital contract – an event that was not centered on the child or her best interest, but focused solely on a technicality that would have no effect on M.M.C.’s day-to-day life," they said. McKnight "determined that the best interest of the child was wholly irrelevant in determining whether to approve an adoption," they said. The law specifically allows "an unmarried person" to adopt, they said. "If the legislature were seeking to 'promote marriage, stability for children and families…[and] protect the traditional unitary family,' it does not make sense the legislature would explicitly permit unmarried individuals to adopt under Wisconsin law," they wrote. Oral arguments in the case are scheduled for 9:45 a.m. Sept. 11.  By Gretchen Schuldt Supreme Court rules don't support Chief Justice Annette K. Ziegler's complaint that the new liberal court majority ignored them when it dismissed at-will employee Randy Koschnick as director of state courts and changed the way the court runs. The Koschnick decision, Ziegler said, "was made without regard for the Constitution, case law, or Supreme Court rules." But here's what the court's own operating procedures (emphasis added) actually say: The court continually reviews its procedures to improve the efficient processing of its caseload and the effective discharge of its administrative responsibilities. Accordingly, these procedures may be changed without notice as circumstances require. It should be reemphasized that these are not rules. They do not purport to limit or describe in binding fashion the powers or duties of any Supreme Court personnel. These internal operating procedures are merely descriptive of how the court currently functions. Any internal operating procedure may be suspended or modified by majority vote of a quorum of the court. The rules say the courts director "is appointed by and serves at the pleasure of" the Supreme Court. Ziegler also said the majority's decision to set up a new committee with new administrative powers and to increase court transparency was made in an "illegitimate closed meeting." It was the then-conservative majority who in 2012 voted, 4-3, to close many Supreme Court administrative meetings. Ziegler voted in favor of secrecy. The new majority voted this week to open those meetings again. And did the majority "gut" Ziegler's constitutional authority as administrator of the court, which she alleged in a statement? In a word, no. Here's what the constitution says: "The chief justice of the supreme court shall be the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court." (Emphasis added.) Finally, Ziegler said changes like those the court majority has announced are made "when seven members of the court convene with an agenda prepared by the Chief Justice and at a time set by the Chief Justice during the court’s business year, which is September-June." Ziegler, in other words, believes the court should consider only the rules that Ziegler likes at a time that Ziegler likes. But now the court's new four-member majority constitutes a quorum of the court and will actually have a say in how things run. The court's own procedures and the state constitution make that clear.  Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. The case: State of Wisconsin vs. Quaheem O. Moore Majority: Justice Brian K. Hagedorn (12 pages), joined by Chief Justice Annette Kingsland Ziegler and Justices Patience Drake Roggensack and Rebecca Grassl Bradley Dissent: Justice Rebecca Frank Dallet (11 pages), joined by Justices Ann Walsh Bradley and Jill J. Karofsky  Hagedorn The upshot After he was pulled over for speeding, officers searched Quaheem Moore based primarily on the smell of marijuana emanating from his vehicle. The circuit court suppressed the results of that search, and the court of appeals affirmed. The State contends this was error. It argues the officers had probable cause to arrest Moore, and thus, this was a lawful search incident to arrest. We agree and reverse. Background On November 17, 2019, City of Marshfield Police Officer Libby Abel executed a traffic stop for speeding. While attempting to make the stop, Officer Abel "observed some sort of liquid fly out of the driver's window" and noticed the vehicle hit a curb while turning onto a side street. Officer Abel approached the vehicle, identified the driver and sole occupant as Quaheem Moore, and questioned him about the speeding and the liquid. During this initial contact, Officer Abel "detected an odor of raw marijuana." She called for back-up, and Officer Mack Scheppler arrived on the scene. Both officers escorted Moore out the vehicle, in between his vehicle and Officer Abel's squad car. Officer Abel performed an initial safety pat-down for weapons. She did not find any, but she did discover a vaping device. She asked Moore if it was a THC (tetrahydrocannabinols) vape, and he responded that it was a CBD (cannabidiol) vape pen. Officer Abel proceeded to question Moore. She first asked about the liquid, which she said she could still see on the side of the car and inside the window; but Moore denied throwing anything out of the window. He explained that the vehicle was his brother's rental, and that he had taken it to the car wash earlier in the day. Officer Abel next asked Moore if he had been drinking, which he also denied. Then, Officer Abel told Moore that she smelled marijuana coming from the vehicle, but he immediately expressed disbelief. Officer Scheppler confirmed that he too smelled marijuana, and later described the odor as overwhelming. Moore continued to express his disbelief and insisted that the officers could not smell marijuana on him. Officers Abel and Scheppler agreed, indicating the smell was coming from the vehicle, not from Moore. Eventually, the officers told Moore that they were going to search him based on the odor of marijuana. Officer Scheppler found only cash at first. Officer Abel then stepped away to search Moore's vehicle while Officer Scheppler and Moore chatted. Several minutes later, Officer Scheppler noticed Moore's "belt buckle was sitting a little higher on his pants" and decided to examine the zipper area. . . . Officer Scheppler ultimately found two plastic baggies containing cocaine and fentanyl in a false-pocket behind Moore's zipper. The State charged Moore with two crimes: possession with intent to deliver narcotics and possession with intent to deliver more than one but less than five grams of cocaine——both as second and subsequent offenses and as a repeater. Moore moved to suppress evidence of the cocaine and fentanyl found by Officer Scheppler, arguing the State lacked probable cause to arrest and therefore to search him. The circuit court agreed and granted the motion. The court of appeals affirmed, and we granted the State's petition for review. The guts The United States Constitution provides: "The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated ....” "Warrantless searches are presumed to be unconstitutional." But there are exceptions, and the State bears the burden to prove an exception applies. One exception is a search incident to an arrest. When conducting a search incident to arrest, the officer is not required to formally arrest before the search. The "search may be incident to a subsequent arrest if the officers have probable cause to arrest before the search." "Probable cause to arrest is the quantum of evidence within the arresting officer's knowledge at the time of the arrest which would lead a reasonable police officer to believe that the defendant probably committed or was committing a crime." This requires more than a mere hunch or reasonable suspicion, but "does not require proof 'beyond a reasonable doubt or even that guilt is more likely than not.'" Probable cause is an objective test that "requires an examination of the totality of the circumstances."... *** (T)he issue presented here is, examining the totality of the circumstances, whether a reasonable law enforcement officer would believe Moore probably committed or was committing a crime. The answer is yes. When Officer Abel pulled Moore over, she watched his vehicle hit the curb and observed a "liquid fly out the driver's window"; she later saw the liquid on the side of the car as well. And when she first approached the vehicle, she smelled raw marijuana. Officer Scheppler smelled it too, and even called it overwhelming. The circuit court found both officers' testimony regarding the smell credible, stating multiple times in its decision that the officers smelled a "strong" odor of marijuana. Moore does not challenge this factual finding. Critically, Moore was the sole occupant of the vehicle. And he was in possession of a vape pen. Taken together, a reasonable officer would believe it was Moore that was responsible for the overwhelming odor of a prohibited substance emanating from a vehicle with no other passengers. The officers need not know with certainty that Moore was committing or had committed illegal activity, but they had more than enough to meet the modest bar that it was probably true. Therefore, the officers had probable cause to believe a crime was or had been committed — at the very least, possession of THC. Moore provides several counterarguments, none of which are persuasive. First, he contends that the odor of marijuana was not sufficiently linked to him because the officers did not smell it on him, only in his vehicle.... (However), “(t)he strong order of marijuana in an automobile will normally provide probable cause to believe that the driver and sole occupant of the vehicle is linked to the drug.” That leads to Moore's second counterpoint: the vehicle was not his, but his brother's rental. While this could constitute an innocent explanation — albeit, a strained one — Moore misses the legal standard. Who owned the title or signed the rental lease does not change the analysis. A reasonable law enforcement officer would still likely conclude, absent other facts not in the record, that the driver and sole occupant of the vehicle was probably connected to the illegal substance whose odor the officer clearly detected in the vehicle. Third, Moore contends that the odor of marijuana cannot be unmistakable when there are innocent explanations for it — such as the odor of CBD, a legal substance that Moore stated his vape pen was used for. The circuit court referenced this as well: "The State notes that CBD and marijuana are indistinguishable in their odor.”... While the officers might have reasonably inferred that the smell from the vehicle was CBD, that was not the only inference they could draw — they also could infer (and they did) that the smell was THC. It is black letter law that "an officer is not required to draw a reasonable inference that favors innocence when there also is a reasonable inference that favors probable cause." Therefore, while an innocent explanation may exist, we still conclude under the facts of this case, a reasonable law enforcement officer would infer that Moore had probably committed or was committing a crime. Finally, Moore notes that neither Officer Abel nor Officer Scheppler testified with respect to their training and experience to detect the smell of marijuana. He asserts that without this testimony, the State failed to establish the odor was unmistakable.... The circuit court acting as fact-finder here found the officers' testimony credible and stated repeatedly that the officers noted the "strong smell" and "strong odor" of marijuana coming from the vehicle. It made this factual finding absent specific testimony regarding the officers' training and experience. Moore does not challenge this factual finding; nor do we conclude this finding is clearly erroneous. Furthermore, the fact that the officers testified to smelling marijuana suggests they know what marijuana smells like. It could be that a fact-finder will not believe an officer's identification of marijuana absent an on-the-record statement of training and experience. The changing legal status and ubiquity of marijuana could make the lack of such evidence vulnerable to attack. But again, we do not see why such testimony would be required… There was enough here without testimony regarding the officers' training and expertise to support a finding that they smelled illegal raw marijuana.   Dallet The dissent
After pulling Moore over for speeding, police officers removed him from his car to conduct a pat-down search. They found no evidence that a crime had been committed, so Moore should have been free to go, perhaps with a speeding ticket. Instead, the officers conducted a second, more thorough search of Moore and found baggies containing cocaine and fentanyl concealed in his pants. The majority concludes that this second search was permissible because the officers had probable cause to arrest Moore on the basis that the car he was driving smelled like marijuana. I disagree; because the officers lacked probable cause to arrest Moore, the evidence they found should be suppressed. *** The majority concludes that under the totality of the circumstances, "the officers had probable cause to believe a crime was or had been committed — at the very least, possession of THC." The circumstances the majority cites for this conclusion are the following:
Almost none of these circumstances "would lead a reasonable police officer to believe" that Moore possessed THC. Hitting the curb while pulling over might be evidence the driver was impaired, but Moore was not arrested for operating while intoxicated and there is no evidence of impairment from the bodycam footage or the officers' reports. Officer Abel's testimony about a liquid spraying out of the driver's side window is immaterial as well. There is nothing in the record about what the liquid was or linking it in any way to THC. Likewise there is nothing in the record that suggests Moore's vape pen was used for anything other than CBD — a legal substance. That leaves only the smell of marijuana coming from the car Moore was driving — a fact the majority all but admits is the only support for probable cause to arrest Moore. In concluding that the smell of marijuana alone gave the officers probable cause to arrest Moore, the majority relies primarily on one 24-year old case decided when the use or possession of any amount of cannabis was illegal nationwide. *** For starters, even if the officers smelled the "unmistakeable" odor of marijuana coming from the car Moore was driving, the linkage between that smell and Moore was not particularly strong.... (T)he likelihood that an occupant is linked to the smell of marijuana in a vehicle "diminishes if the odor is not strong or recent, if the source of the odor is not near th eperson, if there are several people in the vehicle, or if a person offers a reasonable explanation for the odor." Here, it is true that Moore was the sole occupant of the car, thus increasing the probability that he was linked to the smell. But that linkage is weaker than it initially appears, since neither officer smelled marijuana on Moore once he was out of the car and because Moore explained that he was driving a vehicle his brother had rented — a fact the officers subsequently verified. More fundamentally, however, legal developments in the last 24 years may call into question (whether) marijuana is "unmistakabl[y the] odor of a controlled substance." Thirty-eight states have legalized medical marijuana and twenty-three of those have also legalized recreational marijuana. Additionally, Congress modified the Controlled Substances Act in 2018 to remove hemp and hemp-derived products from the definition of marijuana, which legalized certain hemp products nationwide. This means that virtually all adults can legally purchase hemp-derived products from local CBD stores. Hemp-derived products come in a variety of processed forms like gummies, oils, and creams, as well as in their unprocessed state as hemp flowers. And just like marijuana, hemp flowers can be smoked, vaped, or eaten. Unlike marijuana, however, hemp contains only trace amounts of the psychoactive compound THC — the main psychoactive ingredient in marijuana. Experts indicate that hemp flowers and marijuana are so similar in appearance and smell that even drug detection dogs can't tell the difference. If true, this means that when a police officer smells what they believe to be the distinctive odor of either raw or burnt marijuana, they could just as easily be smelling raw or burnt hemp. In light of the nationwide legalization of hemp, this raises the question: Should the smell of marijuana alone still justify a warrantless arrest? Courts in jurisdictions that have legalized marijuana for medical or recreational purposes have answered "no" .... Dallet then discusses cases from Pennsylvania, Maryland, and Minnesota. Although Wisconsin has not yet legalized medical or recreational marijuana, or decriminalized possession or consumption of marijuana, the reasoning in these cases demonstrates that marijuana's once-unique odor may no longer serve as the beacon of criminal activity it did a quarter-century ago. ... Wisconsinites can legally purchase, transport, and smoke or vape hemp products that experts indicate are identical to marijuana in look and smell. As such, officers who believe they smell marijuana coming from a vehicle may just as likely be smelling raw or smoked hemp, which is not criminal activity. Moreover, in virtually all of Wisconsin's neighboring states — Illinois, Michigan, and Minnesota — recreational marijuana is now legal. With that, Wisconsinites may travel to neighboring states and consume marijuana without violating any state laws. And experience teaches us that smells linger in cars, sometimes long after the item responsible for the smell is gone. In sum, ... reliance on the smell of marijuana as an unmistakable indication of illegal activity sufficient to justify a warrantless arrest may no longer ring true. All things considered, the totality of the relevant circumstances here do not add up to probable cause to arrest and thus any evidence found during the search should be suppressed. Other than the officers' testimony that they smelled raw marijuana coming from the car Moore was driving, there was no reason to believe that Moore possessed THC. The smell the officers identified was not sufficiently linked to Moore under the circumstances of this case…. For all these reasons, I respectfully dissent. The state Supreme Court ruled Tuesday, 4-3, that police can base a search primarily on the smell of marijuana, even though the legalization of CBD and hemp means the smell could be from a perfectly legitimate source.
Justice Brian Hagedorn wrote the opinion, joined by Chief Justice Annette K. Ziegler and Justices Rebecca Grassl Bradley and Patience D. Roggensack. Justice Rebecca F. Dallet dissented, joined by Justices Ann Walsh Bradley and Jill J. Karofsky. Quaheem Moore was pulled over for speeding. Police searched him based largely on the smell of marijuana coming from the car he was driving, which he borrowed from his brother. "The circuit court suppressed the results of that search, and the court of appeals affirmed," Hagedorn wrote. "The state contends this was error. It argues the officers had probable cause to arrest Moore, and thus, this was a lawful search incident to arrest. We agree and reverse." "While an innocent explanation (for the smell) may exist, we still conclude under the facts of this case, a reasonable law enforcement officer would infer that Moore had probably committed or was committing a crime," he wrote. "All things considered, the totality of the relevant circumstances here do not add up to probable cause to arrest and thus any evidence found during the search should be suppressed," Dallet wrote in her dissent. "Other than the officers' testimony that they smelled raw marijuana coming from the car Moore was driving, there was no reason to believe that Moore possessed THC. The smell the officers identified was not sufficiently linked to Moore under the circumstances of this case. " Look for more on the case in an upcoming "SCOW docket," where we cut Supreme Court decisions down to size and hit the highlights. The Wisconsin Supreme Court today upheld the 2020 victims’ rights constitutional amendment. In doing so, the court tossed out a standard for assessing constitutional questions in place since 1925 and created a new standard never argued by the parties.
The majority decision and two concurrences used more ink on debates about how to interpret the constitution and the place of originalism—a theory of constitutional interpretation aimed at discerning the intent of a provision at the time it was adopted—than on the arguments raised by the parties in the case before it. Justice Brian Hagedorn wrote the majority opinion, joined by Chief Justice Annette Ziegler, Justice Patience Roggensack, and Justice Rebecca Grassl Bradley. Hagedorn also wrote a concurrence to his own majority opinion. Grassl Bradley wrote a concurring opinion, joined by Ziegler and Roggensack. Justice Rebecca Dallet wrote a concurring opinion, joined by Justice Jill Karofsky. Justice Ann Walsh Bradley dissented. No justice denied that the victims' rights amendment diminished the rights of an accused under the state constitution. In her dissent, Walsh Bradley expressly noted that it did. The state defendants, who filed the appeal, never raised any question about the applicable legal standard in their briefs or at oral argument. As noted by Walsh Bradley in her concurrence, they confirmed at oral argument that they were not asking the court to overturn any prior decision. The precedent at issue was the Supreme Court's 1925 decision in State ex rel. Ekern v. Zimmerman. The parties argued their case in the trial court and appellate briefs under the language of Ekern and another case from 1953. The Supreme Court never asked the parties to re-brief the appeal to address whether the standard in Ekern should be rejected, what a new test might be, and how the 2020 ballot question fared against the new standard. Nevertheless, the majority threw out the Ekern test as unsupported by the text of the constitution and its original meaning. The constitution requires only that an amendment be “submitted” to the people without “any explicit obligations regarding form or substance,” Hagedorn wrote. “The text simply requires that the people must have the opportunity to ratify or reject a proposed amendment.” He pointed to early ballot questions from 1850s and 1860s that asked voters merely whether they were voting for or against amending the constitution, without any indication of the amendment’s contents at all. The Wisconsin Supreme Court in Ekern had stated that a constitutional amendment question presented to voters “must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment” and that the “essential criterion” is “an intelligent and comprehensive submission to the people, so that the latter may be fully informed on the subject upon which they are required to exercise a franchise.” After tossing any standard from Ekern, the court adopted its new standard: a ballot question is invalid “only in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment.” Telling voters in the question that crime victims and those accused of crime would have rights protected “with equal force,” while the amendment actually provides that crime victims’ rights are protected “no less vigorous(ly)” than an accused’s was not “fundamentally counterfactual,” said the court. WJI had argued that “equal to” and “equal or greater than” were not equivalent. Failing to tell voters that the amendment deleted a sentence of the constitution ensuring that victims’ rights provisions in the constitution or state statutes would not limit any right of an accused, while diverting voters with a phrase indicating that federal constitutional rights were not impacted by the amendment, did not rise to the level of a fundamentally counterfactual question, said the court. “(T)he issue is not whether the amendment was explained, but whether it was ‘submitted’ to the people. Nothing in the constitution requires that all components be presented in the ballot question. The constitution leaves the level of detail required to the Legislature, which may impose more or less requirements on itself,” Hagedorn wrote. The ballot question need not under the constitution present any kind of description of the amendment’s substance to voters at all, he wrote. Grassl Bradley in her concurrence included significant disagreement with Dallet over constitutional interpretation. She also opined that voters are expected to review in advance and educate themselves about proposed constitutional amendments. “By analogy, a ballot for President of the United States does not describe the candidates or their platforms. Voters are trusted to inform themselves,” she wrote. Dallet and Karofsky would have retained the Ekern test, but found that the ballot question satisfied it. Walsh Bradley would have retained the Ekern test, and she agreed with WJI and the four individual plaintiffs that under Ekern the 2020 ballot question was invalid. She agreed that the provisions of the vicitms’ rights amendment “do, in fact, decrease the rights afforded to criminal defendants,” and remarked on the majority’s failure to recognize it. “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,” she wrote. Walsh Bradley noted that the Ekern test furthered the aims of democracy: “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.” The majority’s test “risks giving the Legislature carte blanche in crafting ballot questions,” while Ekern provided a safeguard for the public against being misled, she wrote. “(R)ather 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,” she wrote. “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.” Walsh Bradley recognized that the new test would be “news to the parties here, who both argued their positions in terms of the ‘every essential’ framework Ekern sets forth.” Updated
The 2020 crime victims’ amendment to the Wisconsin Constitution stands. The Wisconsin Supreme Court has rejected Wisconsin Justice Initiative’s challenge to the amendment. WJI challenged the amendment, known as "Marsy's Law," on the grounds that the question put to voters for approval on the April 2020 ballot failed to properly inform them of the amendment’s contents and, in fact, misled them about the elimination of state-law rights of those accused of crimes. In addition, WJI argued, more than one ballot question was needed because the amendment had multiple parts, WJI argued. The Wisconsin Supreme Court disagreed, through a majority decision and multiple concurrences. Justice Brian Hagedorn wrote on behalf of the court. Justice Ann Walsh Bradley dissented. (Details on the decision to follow in a separate blog post.) Attorney Dennis Grzezinski, representing the plaintiffs, responded to the decision. “The trial court, in a careful and well-reasoned decision, had found the ballot question to be inadequate to inform Wisconsin voters of the contents of the amendment, and we were hopeful that that decision would be affirmed by the Supreme Court,” he said. “WJI and the individual plaintiffs are disappointed by the Supreme Court’s decision.” WJI and four individual plaintiffs brought the case in December 2019 and won at the trial-court level. In November 2020, Dane County Circuit Court Judge Frank D. Remington declared that the April 2020 ballot question used to pass what is known as “Marsy’s Law” failed to fully and fairly inform the public of the essential components of the amendment, misstated the contents and impact of the amendment, and improperly encompassed more than one subject, in violation of constitutional requirements. Remington stayed his decision pending appeal, so the changes went into effect. Attorney General Josh Kaul appealed Remington’s decision to District III of the Wisconsin Court of Appeals, located in Wausau. Kaul appealed on behalf of himself, the Wisconsin Elections Commission, its chair, and then-Secretary of State Douglas LaFollette. The case skipped from the Court of Appeals to the Wisconsin Supreme Court on certification by the District III panel of judges. In certifying the appeal, the court of appeals remarked that the case involved “significant questions of state constitutional law, the resolution of which will have a sweeping effect on our criminal justice institutions and those operating within them, including victims, defendants, prosecutors, defense attorneys, law enforcement officials, and our courts.” The Supreme Court heard oral argument on September 6, 2022, and issued its decision on May 16, 2023. “WJI agrees with Justice Ann Walsh Bradley's dissent,” said WJI executive director Margo Kirchner. “The Supreme Court has given the Legislature permission to frame and word referendum questions that leave out important information for voters and even mislead them. The Wisconsin Constitution is the foundation of our state’s laws; changes to it should not occur on the basis of insufficient and misleading ballot questions.” WJI is disappointed with the outcome, but also with how the majority reached it, said Kirchner. The court decided an issue that the parties never argued in the trial court or on appeal. The court threw out the legal standard from a century-old case, which the state defendants did not challenge, and created a new standard. The parties were not asked to re-brief the case under the new standard. During the three years the victims' rights amendment has been in effect, it has created significant challenges for criminal courts and their participants, said WJI president Craig Johnson, a criminal defense attorney and another plaintiff in the case. "Unfortunately, the Court's decision does not fully recognize the chaos and confusion that this amendment has ushered into the day-to-day workings of our criminal courts,” said Johnson. “The amendment is a story of arguably good intentions that produced confusing and unanticipated results.” “Further appeals can be expected, as various aspects of Marsy's Law are challenged in trial courts,” said Johnson. “I don't think we've heard the final verdict on Marsy's Law." In addition to WJI and Johnson, plaintiffs in the case included criminal defense attorney Jerome Buting, attorney Jacqueline Boynton, and former Wisconsin Sen. Fred Risser. |
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