Jan. 27, 2025 – In Wisconsin Voter Alliance (WVA) v. Secord, 2025 WI 2 (Jan. 17, 2025), a 5-2 majority reversed and remanded a District II Wisconsin Court of Appeals decision because it violated the prohibition defined in Cook v. Cook, 208 Wis. 2d 166 (1997), which held that the court of appeals cannot reverse its own decisions.
The supreme court did not decide the merits: whether state public records law requires release of Notice of Voting Eligibility (NVE) forms, also known as circuit court form GN-3180.
The dissent didn’t discuss the merits of the case either. It felt hamstrung by the majority’s “punt[ing]” the substantive issue, which the dissent believed the supreme court should have decided.
Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.
“Although both parties urged the court to resolve the substantive issue, the majority dodges it and chooses to scold the court of appeals instead,” Justice Rebecca Grassl Bradley wrote in dissent.
Justice Brian Hagedorn, concurring, would have preferred to answer the substantive issue.
His concurrence inquired whether Cook – written in 1997 after only 20 years of experience with the court of appeals – is due for reexamination. Maybe the court of appeals should be able to reverse itself.
“As I have expressed many times,” Hagedorn wrote, “allowing cases to work their way through the court of appeals is, absent unusual circumstances, the best way to ensure novel and important legal questions are thoroughly vetted.”
Public Records Requests
WVA sought from 13 circuit courts the NVE forms, which inform the Wisconsin Elections Commission (WEC) that a probate court has declared a citizen ineligible to vote due to incompetency.
The WEC uses the forms to maintain the WisVote public database as a part of its duties, as the Alliance described them, to identify ineligible individuals to make sure they may not register and vote.
WVA believed the WEC did not always update the database and wanted the NVE forms to prove it.
The circuit court dismissed the public records request to the Juneau County Register of Probate.
In a unanimous, published opinion, District IV in Wisconsin Voter Alliance v. Reynolds, 2023 WI App 66 (Nov. 9, 2023) held that the NVE forms are exempt from disclosure under public records law and
Wis. Stat. section 54.75 as “pertinent to the finding of incompetency.”
A Second Decision
WVA submitted an identical request for NVE forms to Walworth County Register of Probate Kristina Secord, and like the Juneau County request, the circuit court dismissed the case for failure to state a claim.
More than six weeks after the District IV published decision, District II released its decision in
Secord, No. 2023AP36 (Dec. 27, 2023), and it came out differently. The 2-1 majority recognized it was bound by the decision in Reynolds “to the extent it is not distinguishable.”
It then distinguished the two cases. In Reynolds, the circuit court dismissed the case before receiving a response or briefing. “By contrast, in this case the circuit court had the benefit of full briefing and argument,” the supreme court majority summarized.
The court of appeals majority performed the public policy balancing test to determine whether the register of probate should release the NVE forms.
Wisconsin public records law sets a strong presumption that records are public, unless an exception applies, but when statute or caselaw is silent, the custodian may still withhold records if the harm of release outweighs the strong presumption of disclosure.
The District II majority decided the balancing test favored disclosure.
The two judges in the District II majority also filed a concurring opinion, written by Judge Maria S. Lazar, analyzing Wis. Stat. section 54.75.
The concurrence declared “we disagree with the analysis in [Reynolds] with respect to the definition of the phrase ‘pertinent to the finding of incompetency.’” Because the court completed the NVE forms after the finding of incompetency, they could not be “pertinent.”
Indistinguishable
The supreme court majority opinion, written by Justice Janet C. Protasiewicz, said the two cases can’t be distinguished.
Both cases involved identical petitions that the registers of probate moved the circuit court to dismiss for failure to state a claim for which relief could be granted, and the circuit courts dismissed the cases, the majority summarized. “In both appeals, the Alliance sought ‘the very same’ records and presented – verbatim – the same issue of law.”
Cook instructs how the court of appeals may proceed in this situation.
Although Wisconsin has four court of appeals districts residing in separate courthouses, they are a unitary court under the Wisconsin Constitution and capable of producing precedent with statewide effect, the majority said.
In this unitary system, the majority explained, the ability for the intermediate court to “overrule, modify or withdraw” one of its published opinions would create unpredictability and encourage litigation in multiple districts.
“[O]nly the supreme court may overrule, modify, or withdraw language from a published court of appeals opinion,” the majority emphasized.
Cook offers the court of appeals two choices. The court may state that the earlier case was wrongly decided and either certify the appeal to the supreme court or decide the appeal based on existing precedent.
The District II majority rendered three holdings directly conflicting with the prior
Reynolds case, the majority identified. “Reynolds and the District II majority sometimes stressed different points and offered different rationales, but their results are completely contrary.”
In conclusion, “We reject the District II majority’s effort to skirt
Cook by drawing fine distinctions between arguments and assuming additional or different facts.”
Reexamining Cook
As Cook has governed the court of appeals for 27 years, Justice Hagedorn in his concurrence contemplated reexamining the case’s strictures.
“[T]hroughout its history, the court of appeals has decided high profile cases of first impression,” Hagedorn said, releasing published decisions that serve to clarify state law.
Although the Wisconsin Constitution establishes a unified court, that does not preclude the ability of the court of appeals from changing its mind, Hagedorn wrote.
“The Wisconsin Supreme Court is no less ‘unified’ in a constitutional sense – as we also are required to be – when we overrule our own prior decisions,” Hagedorn wrote. Similarly, “this court has at times been unable to address questions with a controlling majority opinion, a trend that has grown in recent years.”
“In such situations, the court of appeals may be in the best position to provide clarity when we are unable to do so.”
The U.S. Circuit Court of Appeals for the Seventh Circuit has rules for overruling its decisions, Justice Hagedorn noted, and the court of appeals could use
en banc review when it may choose to change its mind.
Although Justice Hagedorn found value in the policy reasons of
Cook, he emphasized its power doesn’t come from the Wisconsin Constitution.
Maybe additional judicial input may be valuable, he said, inviting alternatives from Wisconsin’s bench and bar.
“When we silence the voice of our colleagues on the court of appeals,” Justice Hagedorn wrote, “we hurt our own ability to carry out our role, and circumscribe the important contributions the court of appeals can likewise make to the law.”
Inefficiently Unresolved Issues
Justice Rebecca Grassl Bradley’s dissent, joined by Chief Justice Annette Kingsland Ziegler, argued for deciding the substantive issue. That’s what the supreme court did in instances when the court of appeals violated
Cook before.
Judicial economy justifies deciding the merits now, they argued.
Both parties – who asked the supreme court to decide the public records dispute – spent money and effort briefing and at oral arguments, as well as the efforts spent by amici, the dissent noted.
“A reversal premised on
Cook, if warranted, should have been done summarily and promptly after the petition for certiorari was filed,” the dissent wrote.
“Perhaps the majority agrees with District IV and disagrees with District II,” the dissent wrote. “Then say so.”
Instead, the dissent concluded, the majority “leaves unresolved issues of great importance to voters, election officials, and people from whom courts have removed the right to vote due to incompetency.”
This article was originally published on the State Bar of Wisconsin’s
Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact
Joe Forward.