The SCOW docket: Giving the Legislature free reign on constitutional amendments, part 3 (the concurrences)
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 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.
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.
(B)y necessity, judicial opinions touch on matters beyond the issues in a case. They might describe a prior opinion or legal doctrine tangential to an issue, but not necessary for resolution of the case. The law calls this "dicta." This word comes from the Latin, obiter dictum, which means "something said in passing." So while the reason or rationale for a decision (in Latin, ratio decidendi) constitutes precedent, the other things said by a court do not. This is true even when the court comments on the law.
In recent years, however, some discussion in Wisconsin has minimized dicta and maximized the effect of the words in judicial opinions. This is problematic for many reasons. I write separately to bring clarity to what this court has and has not said about dicta, and to issue a clarion call to re-embrace dicta's crucial role in understanding our case-deciding, precedent-setting function.
Both we and the Wisconsin Court of Appeals largely carry out our case-deciding work through written judicial opinions. We distribute these opinions to the parties, make them available to the public, and print them in reporters that stretch back to before Wisconsin's statehood. While the Wisconsin Reports are filled with sound writing and compelling legal analysis (and, to be sure, some of the other variety), lawyers and lower courts need to know what from these opinions constitutes a rule of decision governing the next case. Is every jot and tittle, stray statement, or tangential footnote binding legal precedent that must be followed faithfully?
The answer to this question almost always and everywhere is no. While debate continues over where to draw the line in principle and from case to case, the general rule remains that the holding of a case—that is, the legal rationale underlying and necessary to a decision—constitutes precedent. Other discussion, including discussion of legal matters, is non- binding dicta.
From our earliest days, this court acknowledged and understood the important distinction between the holding of a case and the non-binding dicta contained within it. We have repeated the unremarkable rule that when we deliberately take up and decide an issue central to the disposition of a case, it is considered precedential. But where our opinions addressed tangential matters not central to the question presented, we labeled such statements dictum and recognized that "[t]his court is not bound by its own dicta." Put simply, not every statement in our opinion pages, no matter how peripheral to the issues in the case, constitutes a precedential opinion of the court.
This practice took a confusing turn in 2010, however. In Zarder v. Humana Ins. Co., we addressed whether the court of appeals may decline to follow a statement in a majority opinion of this court on the grounds that it is dictum. The answer, somewhat surprisingly, was no. This new approach directly contradicted prior statements of this court. . . .
This portion of Zarder deserves reexamination. Its reasoning was questionable, its foundation was weak, and its consequences have undermined a proper conception of the judicial role. . . . (T)he traditional rule is that only the rationale for a decision has precedential effect. . . .
. . . Zarder has led some in the legal community, and even on this court, to suggest we no longer recognize a role for dicta in our opinions. Every description or discussion, in this view, constitutes a precedential holding of this court. To be sure, Zarder never says this. . . . As far as I am aware, this court has never held—in what would be a dramatic departure from basic norms of American jurisprudence—that the bench and bar must respect every word or discussion in our opinions as precedent.
Yet for whatever reason, Zarder seems to have distorted how we think about our judicial work-product as well. . . . (W)e have ceased calling language in our own opinions dicta. Indeed, since Zarder, I cannot find any time we explicitly concluded that a portion of our own opinions was nonbinding dicta. Once again, Zarder on its own terms doesn't demand this, nor does it call into question the existence of dicta as a general matter. But its directional influence casts a long shadow.
Our opinions are not statutes, they interpret them. Our opinions are not the constitution, they interpret it. Our opinions are explanations of how and why we decided a case a particular way. They are meant to resolve the issue before us and, in so doing, set forth a legal standard that will be applied in other cases. But we don't know what we don't know. We make mistakes and misdescribe things and use imprecise language. Perhaps a little judicial modesty is in order. Stray statements or tangential discussions in opinions should not bind future courts or demand a stare decisis analysis. Recognizing dicta serves as a check on the current court, and keeps us in our proper case-deciding constitutional lane. We should embrace it. We should employ it. And neither we nor lower courts should feel compelled to bow before every prior pen-stroke in our opinions.
So why raise this now? Because these concepts would be beneficial in cases like this. Here, the parties ask us to breathe life into Ekern's statement that "even if the form is prescribed by the legislature it must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment." But this statement in Ekern was not necessary to the issue decided in that case, which was whether the content of a ballot question may be delegated to the secretary of state. In other words, this is classic dicta. Unfortunately, the parties argued the case as if we are obligated to do something with this language. But we are not. The premise is incorrect. The tangential discussion in Ekern may have persuasive value, but it did not create a judicial test we are bound to apply forevermore. We should call it dicta and call it a day, leaving us to focus on the requirements found in Article XII, Section 1 of the Wisconsin Constitution. That approach is appropriate here, and will be useful and appropriate in cases moving forward.
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