Wisconsin Justice Initiative, Inc. v. Wisconsin Elections Commission, 2023 WI 38, 5/16/23, on certification from the court of appeals; case activity (including briefs)

In a 6-1 opinion, SCOW held that the ballot question for Marsy’s law complied with Wis. Const. art. XII §1. That’s the old news. The new and BIG news is Justice Dallet’s concurrence. It is essential reading for lawyers arguing constitutional or statutory construction issues to SCOW. She, Karofsky, and A.W. Bradley say that they are not bound by “methodologies” for interpreting constitutions and statutes–specifically “originalism” or strict adherence to the “plain language”–that SCOW has used in some past cases. If Justice-elect Protasiewicz agrees, we may soon see some defense-friendly constructions of our constitution and statutes.

This case generated a majority opinion, three concurrences, and a dissent with some justices joining only parts of other opinions. Here is the scorecard:

Hagedorn’s majority opinion. Article XII, §1 provides a procedure for amending Wisconsin’s constitution. WJI argued that the ballot question asking Wisconsin voters to approve a victims’ rights amendment called “Mary’s law” violated that constitutional provision and State ex rel. Ekern v. Zimmerman, 187 Wis. 180, 204 N.W. 803 (1925), which required the ballot question to include “every essential” of the proposed amendment.  Hagedorn (joined by RGB, Ziegler, and Roggensack), holds that the ballot question satisfied the “original public meaning” of Article XII, §1 and rejects Ekern‘s “every essential” test. Opinion, ¶¶46-65.

Dallet’s concurrence. Dallet, joined by Karofsky, agrees with the result but not the majority’s rationale. Dallet would hold that the Marsy’s law ballot question satisfied both Wis. Const. art. XII §1. and Ekern’s test, which she clarifies. Concurrence, ¶124, ¶¶133-135.

Dallet also highlights the many fallacies of the “originalism” framework for interpreting state and federal constitutions. She argues that originalism has never been SCOW’s dominant approach to interpreting the Wisconsin Constitution, and it shouldn’t be applied in this case. Concurrence, ¶¶95-117.

What’s more, “originalism” and strict adherence to the “plain language of the statute” are simply methodologies for interpreting constitutions and statutes. Methodologies are not subject to stare decisis. Concurrence, ¶¶118-122.

Dallet explains that when SCOW interprets a provision in a constitution or statute its interpretation of that provision is binding on future courts under stare decisis. But the fact that SCOW used originalism or the “plain language” doctrine of State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110 (borrowed from Antonin Scalia) to interpret a constitutional or statutory provision in past cases does not force SCOW to use those same methodologies when interpreting other constitutional or statutory provisions in future cases. Concurrence, ¶¶118-122.

Constitutions, she says, present broad principles which their framers expected future judges and interpreters to construe and apply to their times. Concurrence, ¶106. And courts and lawyers wrongly assume that Kalal‘s statutory interpretation framework is binding. It isn’t. Concurrence, ¶119. Wow! That’s a potential game-changer if Justice-elect Protasiewicz agrees with Dallet, Karofsky, and AWB.

Starting next term, lawyers should consider bringing constitutional challenges based on the Wisconsin constitution (not the federal constitution on which SCOTUS gets the last word) and citing Erwin Chemerinsky rather than Antonin Scalia. And they should not assume that Kalal’s statutory interpretation framework is binding in their cases.

So how should lawyers and judges construe constitutions? Dallet says:

We should analyze the United States or Wisconsin constitutions’ text and history carefully, but we should also be guided by precedent, context, historical practice and tradition, and the need to balance “‘the majority’s values against the values that should be protected from society’s majorities.’” [State v. Hoyle, 2023 WI 24, ¶109, 406 Wis. 2d 373, 987 N.W.2d 732 (Dallet, J., dissenting)] (quoting Chemerinsky, supra at 207).  Concurrence, ¶117.

RGB’s concurrence. RGB (joined by Ziegler and Roggensack, but not Hagedorn) takes potshots at Dallet and AWB, but does not add anything meaningful to the discussion. Her decision to rely on the “fallacy of the beard” in Robert Thouless’s Straight and Crooked Thinking is interesting. Thouless was a psychologist and parapsychologist who attempted to prove that the dead can communicate with the living. Concurrence, ¶¶67-87.

Hagedorn’s concurrence. Hagedorn argues that the “every essential” requirement in Ekern is just dicta. He then argues for clarification of Zarder v. Humana Ins. Co. 2010 WI 35, 324 Wis. 2d 325, 782 N.W.2d 682.  Zarder held that the court of appeals may not decline to follow a statement in a SCOW majority opinion by concluding that the statement was only dicta. Hagedorn says he’s not taking sides on what qualifies as dicta. He simply wants to restart a discussion on the matter. Concurrence, ¶147 n. 6. Zarder was a unanimous opinion written by AWB. Dallet joins Hagedorn’s concurrence and hence his desire to revisit dicta.

AWB’s dissent. AWB contends that the “every essential” requirement in Ekern is not dicta. It’s a test. Both the WJI and the WEC treated it as the applicable test in their briefs. Neither party asked SCOW to overrule it, which is what the majority (meaning Hagedorn, RGB, Ziegler and Roggensack) has done. In her view, the ballot question failed to describe “every essential” of Marsy’s law. For example, several provisions of Marsy’s law diminish the rights afforded to criminal defendants but the public was never told that. Concurrence, ¶¶153-190.

Note that this case involved a narrow issue–whether the ballot question describing Marsy’s law to Wisconsin voters complied with the Wisconsin constitution. The case did not present any substantive challenges to Marsy’s law. Those remain for future cases.