Wis. Justice Initiative, Inc. v. Wis. Elections Comm'n

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The Supreme Court held that the challenges to the victim's rights amendment termed "Marsy's Law" that was brought by Wisconsin Justice Initiative, Inc. and several citizens (WJI) failed and that the amendment was validly ratified and properly part of the Wisconsin Constitution.

In April 2020, the people of Wisconsin ratified Marsy's Law. In this action, WJI argued that the ballot question for Marsy's Law that was submitted to Wisconsin voters violated Wis. Const. art. XII, 1 because it misled voters by neglecting the amendment's impact on the rights of criminal defendants. The circuit court granted declaratory judgment for WJI, concluding that the ballot question failed to meet requirements as to content and form. The Supreme Court reversed, holding that Mary's Law was validly submitted to and ratified by voters, as required by the constitution.

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2023 WI 38 SUPREME COURT OF WISCONSIN CASE NO.: 2020AP2003 COMPLETE TITLE: Wisconsin Justice Initiative, Inc., a Wisconsin nonstock corporation, Jacqueline E. Boynton, Jerome F. Buting, Craig R. Johnson and Fred A. Risser, Plaintiffs-Respondents, v. Wisconsin Elections Commission, Ann S. Jacobs, in her official capacity as Chair of the Wisconsin Elections Commission, Douglas La Follette, in his official capacity as Secretary of State of Wisconsin, and Josh Kaul, in his official capacity as Attorney General of Wisconsin, Defendants-Appellants. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: May 16, 2023 September 6, 2022 Circuit Dane Frank D. Remington JUSTICES: HAGEDORN, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK, and REBECCA GRASSL BRADLEY, JJ., joined, and in which DALLET and KAROFSKY, JJ., joined with respect to ¶¶58-59 and 61-65. REBECCA GRASSL BRADLEY, J., filed a concurring opinion in which ZIEGLER, C.J., and ROGGENSACK, J., joined. DALLET, J., filed a concurring opinion in which KAROFSKY, J., joined, and in which ANN WALSH BRADLEY, J., joined with respect to ¶¶93-122. HAGEDORN, J., filed a concurring opinion in which DALLET, J., joined with respect to ¶¶137-150. ANN WALSH BRADLEY, J., filed a dissenting opinion. NOT PARTICIPATING: ATTORNEYS: For the defendants-appellants, there were briefs filed by Jody J. Schmelzer and Hannah S. Jurss, assistant attorneys general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Hannah S. Jurss, assistant attorney general. For the plaintiffs-respondents, there was a brief filed by Dennis M. Grzezinski and the Law Office of Dennis M. Grzezinski, Milwaukee. There was an oral argument by Dennis M. Grzezinski. An amicus curiae brief was filed by Mike Wittenwyler, Kendall W. Harrizon, Maxted M. Lenz, and Godfrey & Kahn, S.C., Madison, for Marsy’s Law for Wisconsin, L.L.C., Mothers Against Drunk Driving, Wisconsin Victim/Witness Professionals Association, Wisconsin Chiefs of Police Association, Milwaukee Police Association, Wisconsin Professional Police Association, Bolton Refuge House, Inc., Golden House, Inc., Unidos Against Domestic Violence, New Day Advocacy Center, and Eau Claire Area Hmong Mutual Assistance Association, Inc. An amicus curiae brief was filed by Scott E. Rosenow and WMC Litigation Center, Madison, for Wisconsin Manufacturers & Commerce, Inc. An amicus curiae brief was filed by Katie R. York, appellate division director, with whom on the brief was Kelli S. Thompson, state public defender, for the Wisconsin State Public Defender. An amicus curiae brief was filed by Christine Donahoe, Mel Barnes, Elizabeth M. Pierson, Jeffrey A. Mandell, Douglas M. Poland, Pahoua Thao, and Stafford Rosenbaum LLP, Madison, for the ACLU of Wisconsin and Law Forward, Inc. 2 An amicus curiae brief was filed by Erika Jacobs Petty, Rachel E. Sattler, and Lotus Legal Clinic, Brookfield, for Lotus Legal Clinic. 3 2023 WI 38 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2020AP2003 (L.C. No. 2019CV3485) STATE OF WISCONSIN : IN SUPREME COURT Wisconsin Justice Initiative, Inc., a Wisconsin nonstock corporation, Jacqueline E. Boynton, Jerome F. Buting, Craig R. Johnson and Fred A. Risser, Plaintiffs-Respondents, FILED v. Wisconsin Elections Commission, Ann S. Jacobs, in her official capacity as Chair of the Wisconsin Elections Commission, Douglas La Follette, in his official capacity as Secretary of State of Wisconsin, and Josh Kaul, in his official capacity as Attorney General of Wisconsin, MAY 16, 2023 Sheila T. Reiff Clerk of Supreme Court Defendants-Appellants. HAGEDORN, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK, and REBECCA GRASSL BRADLEY, JJ., joined, and in which DALLET and KAROFSKY, JJ., joined with respect to ¶¶58-59 and 61-65. REBECCA GRASSL BRADLEY, J., filed a concurring opinion in which ZIEGLER, C.J., and ROGGENSACK, J., joined. DALLET, J., filed a concurring opinion in which KAROFSKY, J., joined, and in which ANN WALSH BRADLEY, J., joined with respect to ¶¶93-122. HAGEDORN, J., filed a concurring opinion in which DALLET, J., joined with respect to ¶¶137-150. ANN WALSH BRADLEY, J., filed a dissenting opinion. No. 2020AP2003 APPEAL from a judgment and an order of the Circuit Court for Dane County, Frank D. Remington, Judge. ¶1 BRIAN HAGEDORN, J. Reversed. When the Wisconsin Constitution was adopted in 1848, it included a process enabling amendments—— an act the people of Wisconsin have seen fit to do almost 150 times. A proposed amendment must be approved by a majority of both houses of the legislature in two successive legislative sessions. Wis. Const. art. XII, § 1. Once it passes that test, the proposed amendment is submitted to the people. Id. majority vote yes, it becomes part of our constitution. If a Id. A victim's rights amendment termed "Marsy's Law" by its sponsors (a term we also use in this opinion) was ratified by the people in April of 2020. In this case, Wisconsin Justice Initiative, Inc. citizens and several (collectively "WJI") argue that Marsy's Law was adopted in violation of the process spelled out in the constitution. ¶2 When Constitution, considering our claims obligation apply its original meaning. is grounded to in faithfully the Wisconsin interpret and The relevant constitutional text governing the claims here is found in Article XII, Section 1. It provides that the legislature has a duty "to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe." Const. art. XII, § 1. submitted, they shall Wis. And, "if more than one amendment be be submitted in such manner that people may vote for or against such amendments separately." 1 the Id. No. ¶3 statute 2020AP2003 The legislature has prescribed further guidelines via regarding the form of the ballot for constitutional amendments. Notably, Wis. Stat. (2021-22)1 questions requires ballot statement of each question." to proposed § 5.64(2)(am) contain a "concise However, WJI has not raised a challenge based upon this or any other statute. Therefore, this case the concerns only the requirements of Wisconsin Constitution which, by their plain terms, give broad discretion to the legislature to prescribe the manner of submission to the people. ¶4 To that end, WJI argues that the ballot question for Marsy's Law submitted to Wisconsin voters ran afoul of Article XII, Section 1. WJI asserts the ballot question fails to contain "every essential" of the proposed amendment, and that it misled voters in several respects by neglecting the amendment's impact on the rights of criminal defendants. WJI pulls this supposed "every essential" requirement from language, although not the holdings, in two of our prior cases. See State ex rel. Ekern v. Zimmerman, 187 Wis. 180, 204 N.W. 803 (1925); State ex rel. Thomson v. Zimmerman, 264 Wis. 644, 60 N.W.2d 416 (1953). However, not a single constitutional amendment in Wisconsin history has ever undergone judicial review using this ostensible test. All subsequent references to the Wisconsin Statutes are to the 2021-22 version unless otherwise indicated. 1 2 No. ¶5 Examining the original meaning of the 2020AP2003 Wisconsin Constitution, we discern no such requirement, and therefore we decline the invitation to fashion a new, exacting constitutional standard. The constitution that the legislature "submit" the proposed amendment to the people. See Wis. Const. art. XII, itself § 1. requires only In 1953, we did strike down a proposed amendment in Thomson——the only time we have done so on this basis in Wisconsin history——when we concluded the question submitted to fundamentally the people described counterfactual way. the 264 amendment Wis. at in 660. a The proposed amendment was therefore not, in any meaningful way, "submitted" to the people. Id. However, the extreme situation in Thomson is not present here. While WJI takes issue with the wording, completeness, and implications of the ballot question, we conclude the question was not fundamentally counterfactual such that voters were not afforded the opportunity to approve the actual amendment. ¶6 Additionally, in view of what WJI contends were modifications to the rights of criminal defendants and victims, it argues Marsy's Law should have been submitted to voters as multiple amendments, rather than as a single amendment. We have summarized our interpretation of this portion of Article XII, Section 1 as follows: It is within the discretion of the legislature to submit several distinct propositions as one amendment if they relate to the same subject matter and are designed to accomplish one general purpose. The general purpose of an amendment may be deduced from the text of the amendment itself and from the 3 No. 2020AP2003 historical context in which the amendment was adopted. And all of the propositions must tend to effect or carry out that purpose. McConkey v. Van Hollen, 2010 WI 57, ¶50, 326 Wis. 2d 1, 783 N.W.2d 855 (cleaned up). Applying this test, we conclude all of the provisions of Marsy's Law relate to expanding and defining victim's rights and tend to effect and carry out this general purpose. ¶7 fail. We therefore hold that WJI's challenges to Marsy's Law The ballot question was not submitted to the people in violation of the process outlined in the Wisconsin Constitution. Therefore, absent challenge on other grounds, the amendment has been validly ratified and is part of the Wisconsin Constitution. I. ¶8 BACKGROUND In successive legislative sessions, both houses of the legislature adopted a proposal to amend Article I, Section 9m of the Wisconsin Constitution. See 2017 Enrolled Joint Resolution 13; 2019 Enrolled Joint Resolution 3. The proposed amendment renumbered the existing Article 1 Section 9m to Section 9m(2) (intro.) and representing modified additions it to as and follows, with strikethroughs underlines representing deletion of the then-existing text: [Article I] Section 9m (2) (intro.) This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy. This state shall ensure that crime victims have all of the following privileges and protections as provided by law: In order to preserve and protect victims' rights to justice and due process throughout the criminal and juvenile justice process, victims shall be entitled to 4 No. 2020AP2003 all of the following rights, which shall vest at the time of victimization and be protected by law in a manner no less vigorous than the protections afforded to the accused: (a) To be treated with dignity, sensitivity, and fairness. respect, courtesy, (b) To privacy. (c) To proceedings free from unreasonable delay. (d) To timely disposition of the case; the opportunity to attend court, free from unreasonable delay. (e) Upon request, to attend all proceedings unless the trial court finds sequestration is necessary to a fair trial for the defendant; involving the case. (f) To reasonable protection from the accused throughout the criminal and juvenile justice process;. (g) Upon request, to reasonable and timely notification of court proceedings; the opportunity to. (h) Upon request, to confer with the prosecution; the opportunity to make a statement to the court at disposition; attorney for the government. (i) Upon request, to be heard in any proceeding during which a right of the victim is implicated, including release, plea, sentencing, disposition, parole, revocation, expungement, or pardon. (j) To have information pertaining to the economic, physical, and psychological effect upon the victim of the offense submitted to the authority with jurisdiction over the case and to have that information considered by that authority. (k) Upon request, to timely notice of any release or escape of the accused or death of the accused if the accused is in custody or on supervision at the time of death. (L) To refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused. 5 No. 2020AP2003 (m) To full restitution; from any person who has been ordered to pay restitution to the victim and to be provided with assistance collecting restitution. (n) To compensation; and as provided by law. (o) Upon request, to reasonable and timely information about the status of the investigation and the outcome of the case and the release of the accused. (p) To timely notice about all rights under this section and all other rights, privileges, or protections of the victim provided by law, including how such rights, privileges, or protections are enforced. (3) Except as provided under sub. (2) (n), all provisions of this section are self-executing. The legislature shall provide may prescribe further remedies for the violation of this section. Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law. and further procedures for compliance with and enforcement of this section. 2019 Enrolled Joint Resolution 3, § 1. ¶9 The proposed amendment also created four subsections: [Article I] Section 9m (1)(a) In this section, notwithstanding any statutory right, privilege, or protection, "victim" means any of the following: 1. A person against whom an act is committed that would constitute a crime if committed by a competent adult. 2. If the person under subd. 1. is deceased or is physically or emotionally unable to exercise his or her rights under this section, the person's spouse, parent or legal guardian, sibling, child, person who resided with the deceased at the time of death, or other lawful representative. 3. If the person under subd. 1. is a minor, the person's parent, legal guardian or custodian, or other lawful representative. 6 new No. 4. If the person under subd. incompetent, the person's legal lawful representative. 2020AP2003 1. is adjudicated guardian or other (b) "Victim" does not include the accused or a person who the court finds would not act in the best interests of a victim who is deceased, incompetent, a minor, or physically or emotionally unable to exercise his or her rights under this section. . . . [Article I] Section 9m (4)(a) In addition to any other available enforcement of rights or remedy for a violation of this section or of other rights, privileges, or protections provided by law, the victim, the victim's attorney or other lawful representative, or the attorney for the government upon request of the victim may assert and seek in any circuit court or before any other authority of competent jurisdiction, enforcement of the rights in this section and any other right, privilege, or protection afforded to the victim by law. The court or other authority with jurisdiction over the case shall act promptly on such a request and afford a remedy for the violation of any right of the victim. The court or other authority with jurisdiction over the case shall clearly state on the record the reasons for any decision regarding the disposition of a victim's right and shall provide those reasons to the victim or the victim's attorney or other lawful representative. (b) Victims may obtain review of all adverse decisions concerning their rights as victims by courts or other authorities with jurisdiction under par. (a) by filing petitions for supervisory writ in the court of appeals and supreme court. . . . [Article I] Section 9m (5) This section does not create any cause of action for damages against the state; any political subdivision of the state; any officer, employee, or agent of the state or a political subdivision of the state acting in his or her official capacity; or any officer, employee, or 7 No. 2020AP2003 agent of the courts acting in his or her official capacity. . . . [Article I] Section 9m (6) This section is not intended and may not be interpreted to supersede a defendant's federal constitutional rights or to afford party status in a proceeding to any victim. Id., §§ 2-5. ¶10 The legislature directed that this amendment, informally known as "Marsy's Law," be submitted for ratification at the April 7, 2020 election. The legislature determined that the ballot question should state as follows: Question 1: "Additional rights of crime victims. Shall section 9m of article I of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?" 2019 Enrolled Joint Resolution 3. ¶11 Several months before the April election, WJI brought suit against the Wisconsin Elections Commission (WEC) alleging the ballot question failed to satisfy the requirements of the Wisconsin Constitution.2 question violated WJI sought declarations that the ballot Article XII, Section 1 of the Wisconsin Constitution on various grounds, and requested both a permanent injunction and a temporary injunction preventing submission of WJI also sued Dean Knudson, Douglas LaFollette, and Josh Kaul in their official capacities as Chair of the WEC, Secretary of State, and Attorney General, respectively. We refer to all the defendants collectively as WEC. 2 8 No. 2020AP2003 the question to voters while the litigation was pending. The circuit court denied WJI's motion for a temporary injunction, and Wisconsinites ratified the amendment at the April 7, 2020 election by a vote of 1,107,067 to 371,013. Several months later, the circuit court granted declaratory judgment in favor of WJI, concluding the ballot question failed to meet all the requirements with respect to content and form. The circuit court, on its own motion, stayed judgment pending appeal. WEC appealed, and the court of appeals certified the appeal to this court, which we accepted. II. ¶12 which DISCUSSION The Wisconsin Constitution provides two mechanisms by the people may change their founding charter: constitutional convention3 and constitutional amendment. This case concerns only the amendment process, which is spelled out in Article XII, Section 1: Any amendment or amendments to this constitution may be proposed in either house of the legislature, and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature to be chosen at the next general election, and shall be published for three months previous to the time of holding such election; and if, in the legislature so next chosen, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the legislature to 3 Wis. Const. art. XII, § 2. 9 No. 2020AP2003 submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe; and if the people shall approve and ratify such amendment or amendments by a majority of the electors voting thereon, such amendment or amendments shall become part of the constitution; 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. This section was adopted as part of our original constitution in 1848 and has never been amended. Compare Wis. Const. art. XII, § 1 (1848) with Wis. Const. art. XII, § 1 (2021); Ray A. Brown, The Making of the Wisconsin Constitution (Part II), 1952 Wis. L. Rev. 23, 60. ¶13 WJI argues the ballot question for Marsy's violated two separate clauses of Article XII, Section 1. Law First, it contends the proposed amendment was not, in effect, submitted "to the people in such manner legislature shall prescribe." and at such time as the Wis. Const. art. XII, § 1. WJI maintains that this provision requires a ballot question on a proposed amendment to disclose amendment and not be misleading. "every essential" of the Separately, WJI asserts that Marsy's Law constituted "more than one amendment" and therefore voters should have been given the opportunity to "vote for or against such amendments separately." ¶14 Wisconsin ratified Id. Analyzing these questions requires us to interpret the Constitution, in conformance and with determine the if the amendment constitutional questions of law we determine independently. was procedures—— Serv. Emps. Int'l Union, Loca1 1 v. Vos, 2020 WI 67, ¶28, 393 Wis. 2d 38, 946 10 No. N.W.2d 35; McConkey, 326 Wis. 2d 1, ¶12. 2020AP2003 We begin by reviewing our approach to constitutional interpretation. A. ¶15 Constitutional Interpretation The Wisconsin Constitution begins, "We, the people of Wisconsin, grateful to Almighty God for our freedom, in order to secure its blessings, form a more perfect government, insure domestic tranquility and promote establish this constitution." the general Wis. Const. pmbl. welfare, do This reflects the foundational assumption of our system of government: all authority resides with the people, and it is the people alone who have the authority to establish the terms and methods by which they foundational will be charter governed. in The which the constitution people is determine fundamental law, and by which they consent to be governed. that their See Wis. Const. art. I, § 1 (government derives its "just powers from the consent of the governed"). ¶16 This contrasts with the constitutional system of the British from whom we declared independence. While our friends in Great Britain speak of being governed by a "constitution," it is not a Constitution (2019). written Was constitution. Written Down, 71 Nikolas Stan. L. Bowie, Rev. Why 1397, the 1400 Rather, for them, it is a set of civic values and norms accepted by the people through the years. 11 Id. But that is not No. how we do it here. written documents. ¶17 This 2020AP2003 Our constitutions——state and federal——are They are law and should be read as such.4 foundational point means our authority to interpret the constitution when deciding cases is not without limits. The constitution establishes the entities and institutions that the people have determined will order their lives. Each of our three branches of government——legislative, executive, and subject to it. of Wis. v. N.W.2d 209. judicial——is created by the constitution and Vos, 393 Wis. 2d 38, ¶31; League of Women Voters Evers, 2019 WI 75, ¶30, 387 Wis. 2d 511, 929 The constitution tells the judiciary, no less than any other branch, what we can do, what we must do, and what we cannot do. See generally Wis. Const. art. VII (providing powers, obligations, and prohibitions of various kinds on the judiciary). We must be faithful to the charge we have been given by the people, exercising only the authority entrusted to us. Vos, 393 Wis. 2d 38, ¶¶31-33; see also The Federalist No. 78, at 470 (A. Hamilton) (C. Rossiter ed. 1961) (calling judges the "faithful guardians of the Constitution"). See, e.g., U.S. Const. art. VI, cl. 2 (declaring the federal Constitution "the supreme Law of the Land"); The Attainment of Statehood 883 (Milo M. Quaife, ed. 1928) (detailing that the president of the state constitutional convention adjourned the convention in 1848 by remarking, "[t]he result of our labors, if approved, becomes henceforth the supreme law of our adopted land, and whether well or ill done it stands forth as the record of our united opinions upon the form of government best suited to the condition of our people"); Daniel R. Suhr, Interpreting the Wisconsin Constitution, 97 Marq. L. Rev. 93, 93 (2013) (stating the "Wisconsin Constitution is the state's fundamental law"). 4 12 No. ¶18 2020AP2003 The main power we have been given in the constitution is the judicial power, which by necessity means the power to interpret the law in appropriate cases. Victims Rts. N.W.2d 384. Bd., One 2017 of WI 67, our most ¶37, See Gabler v. Crime 376 famous Wis. 2d 147, early cases, 897 Attorney General ex rel. Bashford v. Barstow, presented a significant challenge to this court at a time when many questioned our authority to issue orders in a disputed gubernatorial contest. 4 Wis. 567 [*567] (1855). Chief Justice Whiton explained that the legal rights at issue were "fixed by the constitution, and the court, if it has jurisdiction of this proceeding, is the mere instrument provided by the constitution to ascertain and enforce their rights as fixed by that instrument." Id. at 672- 73 the [*659]. Although the case centered on who lawful occupant of the governor's office was, the court's role was "the same as in all controversies between party and party; not to create rights, but to ascertain and enforce them." [*659]. Id. at 673 Thus, we have understood from early on that our role is not to use the constitution to create new rights and protections that are not there, but to ascertain and enforce the rights and protections that are already there, fixed by the people in the text of the constitution. 512, 407 rewrite create N.W.2d 832 history some constitution new and (1987) ("Courts plain, clear rights needs See Jacobs v. Major, 139 Wis. 2d 492, contrary updating, the 13 would be ill-advised constitutional to history."). people may do language Where so to to our through No. constitutional amendment or constitutional authority has not been given to us. ¶19 2020AP2003 convention; that See Wis. Const. art. XII. This should not be surprising because that is exactly how we have described our duty when interpreting other sources of law. When it comes to statutory interpretation, we understand that it is "a solemn obligation of the judiciary to faithfully give effect to the laws enacted by the legislature, and to do so requires a determination of statutory meaning." State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. This is why the focus in statutory interpretation is on the language of the statutory text, read reasonably, along with relevant statutory context and structure. Id., ¶44-46. The whole goal "of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." ¶20 enacted Id., ¶44. Our obligation to be true to the law the people have requires the same kind of consideration constitutional meaning as we give to statutory meaning. of The awesome responsibility entrusted to us by the people calls us to have the humility and fortitude to say what the law is, not what we may wish it to be. the times. moral norms. We do not "update" statutes to fit with We do not rewrite statutes to account for changing We do not modify statutes so they better accord with our sense of justice or good public policy. We do not ignore or fail to interpret statutes to mean what they say when critics are loud. We have repeatedly said it is not our job to judge the wisdom of the laws we interpret; rather, it is our job 14 No. 2020AP2003 to interpret the law as we find it. See, e.g., Town of Wilson v. City of Sheboygan, 2020 WI 16, ¶45, 390 Wis. 2d 266, 938 N.W.2d 493 ("The Town's argument that a petitioner should be required to use one method of calculation over another is a policy argument and has no support in the statutory language."); Voters with Facts v. City of Eau Claire, 2018 WI 63, ¶40, 382 Wis. 2d 1, 913 N.W.2d 131 ("[A] court cannot issue a declaration regarding the wisdom of a legislative determination."); Columbus Park Hous. Wis. 2d 59, written, Corp. 671 not v. City N.W.2d 633 interpret it of Kenosha, 2003 ("[W]e must as think we WI 143, apply it the ¶34, 267 statute should have as been written."); Aicher v. Wis. Patients Comp. Fund, 2000 WI 98, ¶57, 237 Wis. 2d 99, 613 N.W.2d 849 ("It is not our role to determine the wisdom or rationale underpinning a particular legislative pronouncement."); Gottlieb v. City of Milwaukee, 33 Wis. 2d 408, 415, 147 N.W.2d 633 (1967) ("We are not concerned with the wisdom of what the legislature has done."). ¶21 Just as the purpose of statutory interpretation is to determine what constitutional the statutory interpretation text is means, to the purpose of what the determine constitutional text meant when it was written, commonly called the original public meaning or original understanding. Although constitutional language is at times written with less precision, that fact charge. reading does not fundamentally change the nature of our We must similarly focus on the constitutional text, it reasonably, in context, and with a view provision's place within the constitutional structure. 15 of the Vos, 393 No. Wis. 2d 38, ¶28. Other sources such as the 2020AP2003 debates and practices at the time of adoption, along with early legislative enactments, may prove helpful aids to interpretation. Halverson, 2021 WI 7, ¶22, 395 Wis. 2d 385, 953 State v. N.W.2d 847. Just as we leave policy choices to the legislature in statutory interpretation, we must leave policy choices to the people in constitutional interpretation. See Vos, 393 Wis. 2d 38, ¶28 ("The text of the constitution reflects the policy choices of the people, similarly and therefore constitutional focuses primarily on constitution."); Flynn v. DOA, the 216 interpretation language Wis. 2d 521, of the 529, 576 N.W.2d 245 (1998) ("It is for the legislature to make policy choices, ours to judge them based not on our preference but on legal principles and constitutional authority."). ¶22 Although we have not been entirely consistent in its application, we have consistently described focused on the meaning of the text.5 commonly recited that when our task as one For many years, we have interpreting a constitutional provision, we look to "the plain meaning of the words in the This is also true across the country. "[T]he supermajority of state supreme courts have expressly identified originalism as the primary canon of state constitutional interpretation." Jeremy M. Christiansen, Originalism: The Primary Canon of State Constitutional Interpretation, 15 Geo. J. L. & Pub. Pol'y 341, 344 (2017); see, e.g., Elliott v. State, 824 S.E.2d 265, 268-269 (Ga. 2019); People v. Tanner, 853 N.W.2d 653, 667 (Mich. 2014); Woonsocket Sch. Comm. v. Chafee, 89 A.3d 778, 787 (R.I. 2014); League of Educ. Voters v. State, 295 P.3d 743, 749 (Wash. 2013) (en banc); Commonwealth v. Rose, 81 A.3d 123, 127 (Pa. 2013); State v. Hernandez, 268 P.3d 822, ¶8 (Utah 2011). 5 16 No. 2020AP2003 context used; the constitutional debates and the practices in existence at the time of the writing of the constitution; and the earliest interpretation of the provision by the legislature as manifested in the first law passed following adoption."6 Thompson v. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d 123 (1996). Notably, all of these are directed at the original meaning of the constitution. ¶23 years.7 This court has doubled down on this approach in recent In State v. Roberson, for example, we overruled our We have——without controversy——embraced this formulation of how we do constitutional interpretation for decades, just as Kalal has taken root as the proper approach to statutory interpretation. See State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110; Daniel R. Suhr, Interpreting Wisconsin Statutes, 100 Marq. L. Rev. 969, 970 (2017) (explaining "Kalal transformed statutory interpretation in Wisconsin" by advancing "a uniform method" for Wisconsin courts to use when interpreting statutes). As a result, the Wisconsin court system has a growing culture where the meaning of the text reigns supreme. And for that, we should be grateful. 6 Justice Dallet's concurrence, on the other hand, suggests we should depart from a methodology focused on the meaning of the text we are interpreting in favor of a more eclectic and "pluralistic" approach. Justice Dallet concurrence, ¶94. The concurrence's open pining for the freedom to go beyond the meaning of constitutional language must be and is rejected. Justice Dallet's concurrence tries to marshal cases challenging this. Justice Dallet's concurrence, ¶97. It points to Becker v. Dane County, 2022 WI 63, ¶33, 403 Wis. 2d 424, 977 N.W.2d 390. But the constitutional analysis cited was joined by only three justices and is not an opinion of the court. Justice Dallet's concurrence also cites State v. Roundtree, 2021 WI 1, 395 Wis. 2d 94, 952 N.W.2d 765; State v. Christen, 2021 WI 39, 396 Wis. 2d 705, 958 N.W.2d 746; and Miller v. Carroll, 2020 WI 56, 392 Wis. 2d 49, 944 N.W.2d 542. But those cases involved applying United States Supreme Court precedent on the Second 7 17 No. prior decision requirements in State for the v. Dubose,8 which admissibility had of 2020AP2003 adopted new out-of-court identification evidence under the Wisconsin Constitution. State v. Roberson, 2019 WI 102, ¶3, 389 Wis. 2d 190, 935 N.W.2d 813. We did so, however, not based on the policies reflected in this decision, but based on our assessment of the "original meaning of the Wisconsin Constitution." while state citizens constitutions than the federal may Id., ¶44. provide We recognized that further Constitution, "the protection question for to a state court is whether its state constitution actually affords greater protection." court does not have Id., ¶56. the Critically, we held, "A state power to write into its state constitution additional protection that is not supported by its text or historical meaning." Id. Amendment and Due Process Clauses of the federal Constitution. The only other example it offers is State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, a single decision from 18 years ago that remains controversial for its departure from traditional judicial reasoning and constitutional analysis. See State v. Halverson, 2021 WI 7, ¶38, 395 Wis. 2d 385, 953 N.W.2d 847 (Rebecca Grassl Bradley, J., concurring) ("Because the Knapp court's interpretation of Article I, Section 8 of the Wisconsin Constitution lacks any mooring in text or history, this court should restore the original meaning of this constitutional provision."); Judge Diane S. Sykes, Reflections on the Wisconsin Supreme Court, Hallows Lecture (March 7, 2006), in Marquette Lawyer, Summer/Fall 2006, at 60 ("The court's decision [in Knapp] rests not on the language or history of the state constitution's self-incrimination clause but on the court's own policy judgment flowing from an expansive view of the deterrence rationale of the exclusionary rule."). State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, overruled by State v. Roberson, 2019 WI 102, 389 Wis. 2d 190, 935 N.W.2d 813. 8 18 No. ¶24 In Halverson, a criminal defendant 2020AP2003 asked us to conclude under the Wisconsin Constitution that an incarcerated individual is "in custody" for purposes of requiring Miranda warnings, despite rejection of that principle under the federal Constitution. 395 Wis. 2d 385, ¶¶2-4. We unanimously rebuffed that argument in part because the defendant provided no argument rooted in the text or history of the Wisconsin Constitution. Id., ¶¶26-28. invitation We did not view the request as a wide-ranging to interrogations. make new judicial policy on custodial Rather, we emphasized that "any argument based on the Wisconsin Constitution must actually be grounded in the Wisconsin Constitution." ¶25 Id., ¶24 Likewise, in State ex rel. Kaul v. Prehn, the State asked us to hold that the Governor should have similar removal powers as the President does under the federal Constitution. 2022 WI 50, ¶2, 402 Wis. 2d 539, 976 N.W.2d 821. We rejected the the State's cases lent original power." overreliance "only limited understanding Id., ¶43. on of federal support the to law because structure, Wisconsin federal meaning, Governor's and removal We emphasized that "we focus on the language of the adopted text" when interpreting the constitution, and said it was the State's obligation to present historical research and evidence of the Wisconsin Constitution's "original meaning." Id., ¶¶12, 44. We went on to consult and discuss the original understanding of the appointment powers of the Governor by reference to the historical record, including records of the 19 No. constitutional convention and early legislative 2020AP2003 enactments. Id., ¶¶48-51. ¶26 the In Johnson v. WEC, we examined the requirements under Wisconsin Constitution 2021 as it WI 87, related ¶2, 399 to redrawing legislative maps. Wis. 2d 623, 967 N.W.2d 469. In doing so, we reviewed the text and history in search of the "original meaning" of the relevant constitutional provisions. notion Id., ¶¶28, 33, 58. that the Wisconsin We rejected, for example, the Constitution authorizes judicial consideration of partisanship because "[n]othing supports the notion that Article I, Section 1 of the Wisconsin Constitution was originally understood" this way. ¶27 When considering our Id., ¶58. role in constitutional interpretation, Justice Smith said it well in 1855. It is worth quoting at length: Let us then look to that constitution, adopted by the people of Wisconsin, and endeavor to ascertain its true intent and meaning, the distribution of the powers of government which it has in fact made, and the agencies which it has provided, whereby those powers are to be executed. And here, let it be remarked, that our conclusions must be guided and determined . . . by the plain, simple, but authoritative and mandatory provisions of our own constitution. We made it ourselves. We are bound to abide by it, until altered, amended or annulled, and we must construe it, and support it, not according to the vague, conjectural hypothesis of volunteer expounders, resident in other states, having no care or interest in the government, and having no knowledge of the constitution of our state, but according to its plain letter and meaning, as the oath-bond of our safety——as the palladium of our rights and liberties—— as the vital principle of our social and political organism. 20 No. 2020AP2003 Bashford, 4 Wis. at 785 [*757-58] (Smith, J.). ¶28 In short, interpretation is our to solemn faithfully constitution as it is written.9 says. duty in discern constitutional and apply the What the constitution says, it What it does not say, it does not say. Through careful, humble, and courageous fidelity to the constitution, we allow the people to constitutional govern rights themselves, and we support protections the and uphold people the have established, and we ensure that the government the people have authorized remains in their hands. B. ¶29 poses: Submitted to the People We turn then to the first constitutional challenge WJI Was the proposed amendment submitted to the people in compliance with Article XII, Section 1? several arguments concerning this Before addressing WJI's clause, we begin with the original meaning of Article XII, Section 1. Justice Dallet's concurrence attempts to critique originalism by raising some of the challenges that come with understanding legal texts. Reading the concurrence's nearhopeless description of the interpretive task, one wonders why we bother with a written constitution at all. None of the issues she identifies are unique to constitutional language, however. The same problems inhere in the interpretation of statutes and other legal texts. Laws written by people, sometimes hundreds of years ago, can be difficult to interpret and apply. But this fact does not change the nature of our duty. Thus, the concurrence's broadside against originalism "isn't an attack against originalism so much as it is an attack on written law." Neil Gorsuch, A Republic, If You Can Keep It 113 (2019). 9 21 No. 1. 2020AP2003 The Original Meaning of Article XII, Section 1 & Ekern ¶30 relevant Our constitutional analysis begins with the text. to this dispute, following initial adoption in As the legislature and other procedural requirements, the constitution requires "the legislature to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe." Wis. Const. art. XII, § 1. language commands only two things: This First, the amendment must be "submitted" to the people; and second, it must be done in the manner and at the time prescribed by the legislature. Id. The legislature has enacted Wis. Stat. § 5.64(2),10 which spells out various instructions for submission such as giving a "concise statement of each question." However, WJI does not develop any separate arguments under this statute. Therefore, we do not address the statute further and focus our attention solely on the requirements in the constitution itself. See Vos, 393 Wis. 2d 38, ¶24 ("We do not step out of our neutral role to 10 Wisconsin Stat. § 5.64(2)(am) states: There shall be a separate ballot when any proposed constitutional amendment or any other measure or question is submitted to a vote of the people, except as authorized in s. 5.655. The ballot shall give a concise statement of each question in accordance with the act or resolution directing submission in the same form as prescribed by the commission under s. 7.08(1)(a). The question may not be worded in such a manner as to require a negative vote to approve a proposition or an affirmative vote to disapprove a proposition. Unless otherwise expressly provided, this ballot form shall be used at all elections when questions are submitted to a vote of the people. 22 No. 2020AP2003 develop or construct arguments for parties; it is up to them to make their case."). ¶31 On its face, the constitutional requirement that an amendment be "submitted" to the people does not contain any explicit obligations regarding form or substance. The legislature is granted substantial discretion and freedom in how amendments can be submitted to the people. The text simply requires that the people must have the opportunity to ratify or reject a proposed amendment. ¶32 Moving to other evidence of the original understanding, we are unaware of any ratification debates or other contemporaneous evidence from the constitutional convention that bear on the meaning of this provision. But early legislative actions pursuant to this provision confirm our reading of the text of Article XII, Section 1. early legislative constitutional actions meaning, but not to because We look to these conclusively they can reveal settle how a constitutional provision was understood at the time of adoption. See, e.g., Vos, 393 Wis. 2d 38, ¶67. In other words, early legislatures attempting to amend the constitution are likely to have acted consistent with their understanding of its requirements, and therefore proceed consistent with the original public meaning of Article XII, Section 1. ¶33 In the early years after our constitution was adopted, ballot questions were uniformly submitted as simple up or down votes. In amendments to 1854, the the legislature voters submitted concerning: 23 (1) three 2-year separate terms for No. 2020AP2003 assemblymen, (2) 4-year terms for senators, and (3) biennial legislative sessions. §§ 1-3, ch. 89, Laws of 1854. The electors were given three ballots: "'For amendment to section amendment to section four'"; four' or 'against "'for amendment to section five' amendment to section five'"; and or 'against "'for amendment to section eleven' amendment to section eleven.'" or 'against § 4, ch. 89, Laws of 1854. This process confirms that the constitutional command to submit the amendment to the people for ratification was understood substantive content. not to demand any particular It simply required that voters be afforded a clear opportunity to ratify a proposed amendment. ¶34 The pattern continued. In 1862, the legislature submitted to voters an amendment to increase the governor's pay to $2,500 per year. § 1, ch. 202, Laws of 1862. There again, the question on the ballot was simply "for the amendment to the constitution" or "against the amendment to the constitution." § 2, ch. 202, Laws of 1862. In 1867, the people were asked to amend the constitution to increase legislative pay to $350 per year. Ch. 25, Laws of 1867. The question on the ballot once again was "for amendment to the constitution" and "for amendment to the constitution, no." § 2, ch. 25, Laws of 1867. And in 1869, the legislature submitted two amendments to the people to increase the salary of the governor to $5,000 per year and the lieutenant governor to $1,000 per year. 24 Ch. 186, Laws of 1869. No. 2020AP2003 The legislature submitted both amendments in the same ballot question: "for amendments to the constitution" amendments to the constitution, no." and "for § 2, ch. 186, Laws of 1869. ¶35 the Thus, no ballot question in the first 22 years after constitution was adopted contained description of the amendment at all. any substantive So far as we can tell, no one questioned the validity of this process. If in fact the constitution requires the content of a proposed amendment to be included in the ballot question, the inescapable conclusion is that every one of these amendments was submitted to the people in an unconstitutional manner——with no one batting an eye. is highly unlikely. That The overwhelming, indeed, uniform teaching of the text and history surrounding Article XII, Section 1 of the Wisconsin Constitution is that an amendment only needs to be submitted to the people for ratification. It need not——as a constitutional prerequisite——contain any kind of description of the amendment's substance.11 ¶36 This leads to two questions. First, where does the proposed "every essential" test come from, then? And second, are there circumstances under which a proposed amendment can be Justice Dallet's concurrence critiques our interpretive principles because, she argues, originalism is "almost always fruitless." Justice Dallet concurrence, ¶108. But this case stands in direct conflict with those assertions. The original meaning in this case is apparent, with text and history all pointing in the same direction. While some cases may involve harder questions, here, as is often the case, a careful analysis yields a relatively clear answer. 11 25 No. 2020AP2003 deemed not "submitted" to the people under Article XII, Section 1? To provide the necessary context for these questions, we continue with a brief survey of the historical practice, legislative changes, and cases that led to the arguments before us today. ¶37 Starting in 1870, the legislature changed its practice and began adding a general subject area to the ballot question, although still without explaining any of the content proposed amendment. presented to or of the Criminal defendants at that time had to be indicted by a grand jury (absent exceptions) before answering a criminal offense. art. 1, § 8 (1848). a few Wis. Const. In 1870, the legislature asked voters to amend the constitution and remove the grand jury requirement. Ch. 118, Laws of 1870. Voters in favor of the amendment were asked to cast a ballot "against the grand jury system" while those who opposed the proposed amendment voted "for the grand jury system." § 2, ch. 118, Laws of 1870. In 1871, voters were asked to add Sections 31 (prohibiting special legislation and private laws) and 32 (authorizing general laws on subject areas prohibited under section 31) to Article IV. 1871. Those in favor of the amendment Ch. 122, Laws of were asked to vote "against special legislation" and those opposed to the amendment cast a ballot "for special legislation." 1871. § 2, ch. 122, Laws of Along these lines, in 1872, the ballot question asked the people to vote "for amending the constitution increasing the number of justices of the supreme court" or "against amending 26 No. the constitution supreme court." ¶38 to increasing the number of 2020AP2003 justices of the § 2, ch. 111, Laws of 1872. 1874 saw a longer, more substantive question submitted the people, immediately followed questions without subject matter. by a return to ballot The ballot language in 1874 was "for amending the constitution limiting bonded indebtedness by counties, towns, cities and villages, to five per cent" and "against amending the constitution limiting the bonded indebtedness by counties, towns, cities and villages to five per cent." § 2, ch. 37, Laws of 1874. Following this, however, the legislature again began asking simple yes or no questions. In 1877 the voters were asked to increase the composition of the supreme court again (the earlier proposal failed). of 1877. amendment The ballot question presented this time was, "for to the constitution, no." the Ch. 48, Laws legislature constitution" "for amendment § 2, ch. 48, Laws of 1877. asked the people regarding claims against the state. ballot question simply asked: the amendment." or to amend to the Also that year, the provision Ch. 158, Laws of 1877. The "for the amendment" and "against § 2, ch. 158, Laws of 1877. Other proposed amendments proceeded similarly.12 All ballot questions from 1881 until 1897 simply served to identify the section (or sections) amended. See § 2, ch. 262, Laws of 1881 (amending Article IV, Sections 4, 5, 11, and 21); § 2, ch. 273, Laws of 1882 (amending Article III, Section 1); § 2, ch. 290, Laws of 1882 (amending Article VI, Section 4; Article VII, Section 12; and Article XIII, Section 1); § 2, ch. 362, Laws of 1891 (amending Article IV, Section 31); § 2, ch. 69, Laws of 1897 (amending Article VII, Section 7). Or they 12 27 No. ¶39 Then, just before the turn of the 2020AP2003 century, the legislature adopted a statute that required "a concise statement of the nature" of a proposed amendment. (1898). Wis. Stat. ch. 5, § 39 This mandate was moved in 1907 to the predecessor of what later became today's Wis. Stat. § 5.64. of 1907 (creating § 38(7)).13 began to include amendments. people. § 2, ch. 583, Laws And in 1908, ballot questions substantive descriptions of proposed That year, four amendments were submitted to the Voters were asked to vote yes or no to the following questions: "For the amendment providing state aid in the construction or improvement of public highways." § 2, ch. 238, Laws of 1907. "For the amendments authorizing a graduated income tax." § 2, ch. 661, Laws of 1907. "For the amendment extending from three to six days the time allowed the governor in which to approve bills." Id. "For the amendment providing that after December 1st, 1912, electors shall be citizens of the United States." Id. And so the trend continued moving forward. ¶40 The first case to address the manner of the legislature's submission to the people occurred in 1925. The question before this court in Ekern was whether the legislature asked if the voter was for or against an amendment. ch. 22, Laws of 1889 (amending Article VII, Section 4). See § 2, See § 25, ch. 383, Laws of 1915 (renumbering § 38 to Wis. Stat. § 6.23); § 1, ch. 666, Laws of 1965 (renumbering Wis. Stat. § 6.23 to Wis. Stat. § 5.64). 13 28 No. 2020AP2003 complied with the constitution when it delegated the drafting of a ballot question to the secretary of state. 200. We held that this was permissible. constitution requires that the 187 Wis. at 196Id. at 205. legislature determine The the "manner" of submission to the people, and we concluded this language was broad enough to encompass directing the secretary of state to determine the content of the ballot question. Id. Although extraneous to the issue in the case, the court engaged in an extended digression regarding the content and design of ballot questions. Id. at 200-02. Because this language is the genesis for the proposed "every essential" test we are asked to breathe life into in this case, we quote the discussion length and in context: A constitutional amendment being designed to affect the fundamental law, the highest degree of care and foresight which the legislature is capable of exercising, in order that the proposed amendment may not fall by the wayside and thus result in thwarting the will of the people, should be exercised as an act of wisdom, and therefore, under the law as it now exists, it would appear to be highly desirable that the form of the question which should be submitted should be prescribed and set forth in the act directing its submission. Every legislature has among its members lawyers who have obtained distinction in their profession and who have made a special study of constitutional law, and ever since the adoption of the constitution it has been the practice of the legislature to appoint such members on the judiciary committees of the two houses. The knowledge, experience, and prudence of such members of the judiciary committee, when supplemented by the aid and advice of the legal department of the state, are liable to result in the production of a better form of submission than if the whole responsibility is rested upon an administrative officer, with the aid of the 29 at No. 2020AP2003 attorney general alone. But the question raised in the instant case is not one which involves the best method, the greatest wisdom, or the most comprehensive foresight, but whether the general statutes above referred to were adequate to comply with the constitutional provisions; and this depends entirely upon the construction to be placed upon the provision of the fundamental law above quoted on the subject of amendments. Had the framers of the constitution intended that the legislature should prescribe the form, it might easily have done so by using a few additional words, or it might have so worded the provision that the idea of form would have been necessarily included by implication. This, however, was not the case, and it is highly probable that the framers had in mind the vital distinction existing between matters of substance and matters of mere form. Had the legislature in the instant case prescribed the form of submission in a manner which would have failed to present the real question, or had they by error or mistake presented an entirely different question, no claim could be made that the proposed amendment would have been validly enacted. In other words, 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. This demonstrates quite clearly the fact that the form of submission is after all a mere form, and that the principal and essential criterion consists in the submission of a question or a form which has for its object and purpose 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. Id. (emphasis added). ¶41 Reviewing this discussion, the language does not read as a separate test. "every essential" Rather, it comes as an explanatory statement (phrased as "[i]n other words") for the comment that the real question, not an question, must be submitted to the people. entirely different Therefore, an effort to infuse constitutional significance into this language is not 30 No. an accurate reading of Ekern on its own terms. 2020AP2003 The relevant discussion in Ekern simply does not set forth a substantive, explainable "every essential" test at all. And why would it? The content of the ballot question was not challenged and was not at issue. There was no need to create, much less apply, a new substantive constitutional test. ¶42 Therefore, we do not understand Ekern as adopting or creating a new, undefined, and strict constitutional test for detail and questions. the accuracy in constitutional amendment ballot Rather, Ekern's discussion is best read as affirming unremarkable proposition that the real amendment must be submitted to the people. question of the This is consistent with the constitutional requirement that a proposed amendment must be "submitted" in order to be validly ratified. Where a question is not the real question at all, such a proposal cannot be said to be submitted to the people. ¶43 later This in proposed reading Thomson, amendments Id. at 650-51. of 264 Ekern animated Wis. at related our 659–60. to decision Thomson legislative years concerned apportionment. The amendments were challenged on the grounds that they should have been submitted as separate amendments——an issue we return to later——and that contrary to the amendment itself. ¶44 The approved, ballot "the along" certain Id. at 660. question legislature municipal The the in Thomson apportion lines——using we 31 question was Id. at 655, 657. shall problem, ballot stated senate mandatory explained, is that, if districts language. "the actual No. 2020AP2003 amendment . . . has no such mandate at all and under it the legislature is uncontrolled except that the territory inclosed shall be 'contiguous' and 'convenient.'" Id. given what to the voters actually provided. was the opposite that the amendment We concluded the question was misinformation and not "in accord with the fact." concluded of The question the "question as Id. We cited Ekern and actually submitted did not present the real question but by error or mistake presented an entirely different one." Id. Accordingly, there was "no valid submission to or ratification by the people." Id. Thomson history remains the only case in state To this day, where a constitutional amendment was deemed invalid because it was not "submitted" to the people. ¶45 A final case we must address involved the court of appeals' efforts to understand these two prior cases, and what sort of requirement an "every essential" test is. The issue in Metropolitan v. Milwaukee Ass'n of Commerce, Inc. City of Milwaukee was the validity of a municipal ballot question——not a constitutional amendment. 798 N.W.2d 287. One 2011 WI App 45, ¶1, 332 Wis. 2d 459, argument raised was whether municipal ballot questions under Wis. Stat. § 9.20(6) were subject to the "'every essential' element" test. appeals answered in the Id., ¶¶10, 12. negative. Id., ¶13. The court of It began by discussing Ekern, and concluded that in context it was not clear an every essential standard was even being proposed at all, an observation we agree with. Id., ¶22. It then read our decision in Thomson as adopting the "every essential" language into the 32 No. statutory requirement before us here.14 of a Id., ¶23. "concise statement"——an 2020AP2003 issue not But, the court noted, Thomson never had to apply the "every essential" language in its reasoning because of its conclusion the ballot statement was inaccurate. Id. The court of appeals went on to address the municipal ballot issue, ultimately concluding the inclusion of "every essential" of a proposal was not incorporated into municipal ballot questions under the relevant statute. 2. ¶46 Id., ¶30. Takeaways So what principles of law can we derive from this discussion? ¶47 First, Article XII, Section 1 does not require any substantive discussion of the amendment in the ballot question submitted to the people. No explanation or summary is constitutionally commanded. ¶48 be Second, the constitution requires that the amendment "submitted" to the people for ratification. We held in Thomson, borrowing language from Ekern, that an amendment has not been "submitted" to the people when the ballot question fails to present amendment itself. voters have not the real question or is Thomson, 264 Wis. 2d at 660. been given the opportunity contrary to the In other words, to vote for or We observe that our decision in State ex rel. Thomson v. Zimmerman never clarified or discussed the legal foundation for an "every essential" analysis. 264 Wis. 644, 60 N.W.2d 416 (1953). Therefore, we question whether Thomson held anything regarding the statutory "concise statement" requirement. 14 33 No. 2020AP2003 against a proposal when the ballot question is fundamentally counterfactual. When a ballot question is factually inaccurate in a fundamental way, it cannot be said that the amendment was actually submitted to the people for ratification. But given the unique facts of Thomson and the broad authority given to the legislature in the constitution, this requirement is narrow and will be triggered only in rare circumstances. ¶49 Third, this court has never, in a single case, developed or applied an "every essential" test for review of proposed constitutional amendments. Nowhere in our two cases that use this language have we established, defined, or utilized such a test. ¶50 And finally, because it is our solemn obligation to follow the original meaning of the constitution, we will not design, invent, or breathe life into the so-called "every essential" test without a constitutional command to do so. ¶51 Insofar as the content of a proposed ballot question is concerned, the relevant constitutional question is whether the proposed amendment was, at a basic level, submitted to the people for ratification. A ballot question could violate this constitutional requirement only in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment. These principles in hand, we examine WJI's argument that the ballot question at issue here failed to satisfy this constitutional requirement. 34 No. 3. ¶52 2020AP2003 Applied Here Once again, the ballot question submitted to voters for Marsy's Law stated: Additional rights of crime victims. Shall section 9m of article I of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court? 2019 Enrolled Joint Resolution 3. WJI raises several objections to this question. ¶53 because First, it does WJI argues not that mention the the ballot new constitutional definition of a "victim." question section fails creating a In an amendment of this length and complexity, the legislature had to make choices of what to include and how to phrase it. We must give significant deference to the legislature in making these choices because the constitution affords the legislature substantial discretion in submitting an amendment to the people. While the legislature could have decided that more be said, WJI's legal argument depends on its erroneous contention that the constitution demands a more exacting review of the legislature's choices. It does not. A constitutional definition of "victim" fits comfortably within the statement that crime victims are given certain states. or additional rights, as the ballot question Nothing here is fundamentally counterfactual such that voters were not asked to approve the actual amendment. 35 No. ¶54 Second, WJI contends the ballot question 2020AP2003 failed to correctly capture how the rights of the accused would change. It offers several arguments in this regard. ballot question is misleading because it WJI asserts the requires "that the rights of crime victims will be protected with equal force to the protections afforded the accused," while the text of the amendment says victim rights will "be protected by law in a manner no less vigorous than the protections afforded to the accused." 2019 Enrolled Joint Resolution 3 (emphasis added); Wis. Const. art. I, § 9m(2) (emphasis added). While the parties debate the import of this wording choice, we again emphasize the deference owed to the legislature in explaining the proposal to the people. Minor deficiencies in a summary (and all summaries will, by necessity, be incomplete) do not give rise to the kind of bait-and-switch we struck down in Thomson. This does not rise to the level of a fundamentally counterfactual question such that voters were not asked to approve the actual amendment. ¶55 WJI misleading accused. additionally because the suggests amendment the reduces ballot the question rights of is the Prior to Marsy's Law, Article I, Section 9m stated, "Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law." Wis. Const. art. I, § 9m (2017). struck this sentence and added: Marsy's Law "This section is not intended and may not be interpreted to supersede a defendant's federal constitutional rights or to afford party status in a proceeding to any victim." Wis. Const. art. I, § 9m(6); 2019 Enrolled 36 No. Joint Resolution 3, §§ 1, 5. 2020AP2003 WJI says the ballot question was misleading because this change in its view could reduce the rights of the accused in some situations, yet voters were told "the federal constitutional rights of the accused" would be left intact. We once again return to the relevant question: the issue is not whether the amendment was explained, but whether it was "submitted" to the people. requires that question. all components Nothing in the constitution be presented in the ballot The constitution leaves the level of detail required to the legislature, which may impose more or less requirements on itself. The failure to raise an issue in a summary or describe with it precision does not amount to the kind of wholesale inaccuracy of Thomson or suggest the amendment was not submitted to the people. level of a This as well does not rise to the fundamentally counterfactual question such that voters were not asked to approve the actual amendment. ¶56 Finally, WJI contends the ballot question is infirm for failing to inform the people that victims can now obtain review of adverse decisions by filing a supervisory writ in this court or the court of appeals. See Wis. Const. § 9m(4)(b); 2019 Enrolled Joint Resolution 3, § 3. substantive impact of this change for another day. art. I, We leave the But WJI's argument again depends on the constitution requiring a level of completeness in a proposed question that simply isn't there. The right to file a supervisory writ is certainly encompassed by the ballot question's statement that crime victims will be given 37 No. certain rights. 2020AP2003 Nothing about its absence renders the ballot question even arguably inaccurate. ¶57 For these reasons, the challenges to the form of the ballot question presented to the people of Wisconsin do not succeed. The question approved by voters was not fundamentally counterfactual in any way. The proposed amendment was submitted to the people for ratification, and as far as the challenge before us today is concerned, that is all the constitution requires. C. ¶58 Finally, WJI Multiple Amendments argues that the amendment should have been submitted as multiple amendments, rather than one. The relevant constitutional text governing this claim is also found in Article XII, Section 1 of the Wisconsin Constitution. It states, "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." ¶59 The text, plainly Wis. Const. art. XII, § 1. read, creates a straightforward requirement: multiple amendments must be submitted separately. The then question becomes, what constitutes more than one amendment? ¶60 Unlike the other claims in this case, this issue is one the court has addressed on several occasions. consideration of the multiple amendments question Our first in Article XII, Section 1 occurred in State ex rel. Hudd v. Timme, 54 Wis. 318, 335, 11 N.W. 785 (1882). 38 There, we carefully No. considered the text and relevant history original understanding of this provision.15 ¶61 Focusing on the language, we to 2020AP2003 determine the Id. at 335-38. explained that could be only two constructions of this sentence. there Id. at 335. "First, it may be construed . . . that every proposition in the shape of an amendment to the constitution, which standing alone changes or abolishes any of its present provisions, or adds any new provision thereto, shall be so drawn that submitted separately, and must be so submitted." reading did not make sense, however. narrow as to constitution." ¶62 render that practically Id. can be Such a It would "be so impossible to amend the construction, and Id. Instead, concluded it Id. it we the adopted relevant the second language must mean that only "amendments which have different objects and purposes in view" must be submitted separately. Id. at 336. We explained, "In order to constitute more than one amendment, the propositions submitted must relate to more than one subject, and have at least two distinct and separate purposes not dependent upon or connected with each other." Id. The court then confirmed this reading by considering the process utilized in the adoption of earlier amendments. Id. at 337-38. It concluded that its The court in State ex rel. Hudd v. Timme did not use the terminology of originalism to explain its analysis, but that is what it did. 54 Wis. 318, 11 N.W. 785 (1882). The court began with the text, and then proceeded to consider the history to determine how the language was understood when drafted. Id. at 335-38. 15 39 No. 2020AP2003 reading of the text was the understanding of nearly everyone when earlier amendments were submitted to the people, without objection. ¶63 Id. at 338. We therefore held that the multiple amendment requirement "must be construed to mean amendments which have different objects and purposes in view." Id. at 336. And in "order to constitute more than one amendment, the propositions submitted must relate to more than one subject, and have at least two distinct and separate purposes not dependent upon or connected with each other." Id. substantially the same since. Our test has remained See, e.g., Thomson, 264 Wis. at 656 (concluding "that a separate submission was required of the amendment" because it failed to satisfy Hudd's test). ¶64 McConkey, Our a most case recent formulation challenging the Section 13, governing marriage. of adoption the of test was Article 326 Wis. 2d 1, ¶1. in XIII, There, we articulated the test as follows: It is within the discretion of the legislature to submit several distinct propositions as one amendment if they relate to the same subject matter and are designed to accomplish one general purpose. The general purpose of an amendment may be deduced from the text of the amendment itself and from the historical context in which the amendment was adopted. And all of the propositions must tend to effect or carry out that purpose. Id., ¶50 (cleaned up). Applying this test, we concluded a single amendment was appropriate because "the general purpose of the marriage amendment is to preserve the legal status marriage in Wisconsin as between one man and one woman. 40 of Both No. propositions in the marriage connected with this purpose." ¶65 test. amendment relate to 2020AP2003 and are Id., ¶56. The parties do not dispute that this is the governing And we see no reason to question the textual historical analysis done by Hudd and its progeny. and Employing this test, we have no difficulty concluding Marsy's Law did not violate the constitutional prohibition on submitting multiple amendments as one. The amendment broadly protects and expands crime victims' rights. of its adoption. Article I. This is plain from the text and history In so doing, it amends only Section 9m of Even if WJI is correct that it will impact those accused of crimes as well (an issue we need not decide), all of the changes relate to the same, general purpose of expanding and protecting the rights of crime victims. All of the propositions are aimed at this goal, and tend to effect or carry this out. We hold that WJI's challenge to Marsy's Law on the ground that it was required to be submitted as separate constitutional amendments fails. III. ¶66 Through the Wisconsin have given determine how CONCLUSION Wisconsin the proposed Constitution, legislature the broad constitutional people of authority to amendments submitted to the people for ratification. may be WJI argues that the ballot question for Marsy's Law was constitutionally deficient under Article XII, Section 1 on multiple grounds. We conclude that the ballot question 41 was not We disagree. fundamentally No. counterfactual such that voters were not opportunity to approve the actual amendment. Law was validly submitted to and ratified Wisconsin, as the constitution requires. 2020AP2003 afforded the Rather, Marsy's by the people of WJI further argues Marsy's Law should have been split into more than one amendment, each receiving a separate vote. not require that here. However, the constitution did We conclude the amendment had the single general purpose of expanding and protecting victims' rights, and all provisions of the proposed amendment furthered this purpose. For these reasons, WJI's constitutional challenges to the ratification of Marsy's Law do not succeed, and we reverse the circuit court's judgment to the contrary. By the Court.—The judgment and order of the circuit court is reversed. 42 No. ¶67 REBECCA GRASSL BRADLEY, J. 2020AP2003.rgb (concurring). If the judicial power extended to every question under the [C]onstitution it would involve almost every subject proper for legislative discussion and decision . . . . The division of power . . . could exist no longer, and the other departments would be swallowed up by the judiciary. John Marshall, Speech (Mar. 7, 1800), reprinted in 4 The Papers of John Marshall 82, 95 (Charles T. Cullen ed., 1984). ¶68 Not every constitutional question authority of the judiciary to answer: falls under the "Sometimes, . . . 'the law is that the judicial department has no business entertaining [a] claim of unlawfulness——because the question is entrusted to one of the political enforceable rights.'" 87, ¶40, Common 399 Cause, branches involves no judicially Johnson v. Wis. Elections Comm'n, 2021 WI Wis. 2d 623, 588 or U.S. 967 __, N.W.2d 469 139 S. Ct. (quoting 2484, (ellipsis and modification in the original). Rucho 2494 v. (2019)) "The judiciary should not be drawn into deciding issues that are essentially political in nature, exclusively committed by the constitution to another branch of government and not susceptible to judicial management or resolution." 236 Wis. 2d 588, Vincent v. Voight, 2000 WI 93, ¶192, 614 N.W.2d 388 (Sykes, J., concurring/dissenting). ¶69 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 1 No. as legal writing professors legislature's work. with the power 2020AP2003.rgb to grade the Justice Rebecca Frank Dallet, joined by Justice Jill J. Karofsky, writes in concurrence to give the legislature's work a passing grade, while Justice Bradley, in dissent, gives the legislature an F. lacks the legislature. authority these justices would usurp Ann Walsh This court from the Cf. Johnson, 399 Wis. 2d 623, ¶45 ("Nothing in the Wisconsin Constitution authorizes this court to recast itself as a redistricting commission[.]"). ¶70 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. See id. ¶51 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). 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.[1] Wis. Const. art. XII, § 1. 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 The Wisconsin Constitution posted on the Wisconsin Historical Society's website places a period before "provided" and capitalizes the P. Wis. Const. art. XI, § 1 (1848), https://content.wisconsinhistory.org/digital/collection/tp/id/71 791. 1 2 No. power to determine how that submission occurs. imposes only one textually-expressed 2020AP2003.rgb The constitution 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. Id. The judiciary does not have the authority to compel the legislature to exercise its power over the manner of submission in a particular way. more thoroughly below, this court possesses As explained 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. ¶71 issue. This case accordingly presents a separation of powers As one amicus curiae explains, "[i]f affirmed, the circuit court's decision could force the [l]egislature to use new language that no desired meaning. . . . those words for a longer expresses the [l]egislature's [T]he [l]egislature presumptively chose reason[.]" Challenges to the manner of submission are therefore "beyond the purview of judicial review" because they present purely political questions. ¶72 Karofsky The desire of Justices Ann Walsh Bradley, Dallet, and to entertain these political questions spawn "defensive" ballot question drafting. would likely Cf. Brief for the Wisconsin Legislature as Amicus Curiae Supporting Petitioners, Bartlett v. Evers, 2020 WI 68, 393 Wis. 2d 172, 945 N.W.2d 685 (No. 2019AP1376-OA), [s]tate have 2020 regularly WL 811784 misused their *1 ("Governors claimed veto of this power to rewrite appropriation laws, striking out sentence fragments to 3 No. 2020AP2003.rgb create new provisions that the [l]egislature did not enact. To combat this gubernatorial lawmaking, the [l]egislature drafts legislation defensively, removing descriptive language that the [g]overnor could turn into operative text, revising language that would contribute to the clarity of law, changing every 'may not' to 'cannot,' and so on."). The legislature could, for example, quote the proposed amendment verbatim on the ballot, perhaps satisfying the aforementioned justices. values-based concerns of the The Wisconsin Constitution, however, does not impose such a cumbersome requirement. ¶73 Second, the "every essential" test is not a "manageable standard[]" by which the judiciary could objectively evaluate the manner Wis. 2d 623, ¶39. of submission. See Johnson, 399 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 American courts. in the manner traditional for English and One of the most obvious limitations imposed by that requirement is that judicial action must be governed by standard, by rule." (2004) See Vieth v. Jubelirer, 541 U.S. 267, 278 (plurality). These standards and rules must be "'principled, rational, and based upon reasoned distinctions' found in the . . . law[]." Vieth, 541 U.S. at 278). when proceeding with Rucho, 139 S. Ct. at 2507 (quoting Otherwise, "intervening courts——even best intentions——would political, not legal, responsibility[.]" Vieth, 541 U.S. at 307 (Kennedy, 4 J., risk assuming Id. 2498–99 (quoting concurring in the No. judgment)). 2020AP2003.rgb Whether a particular characteristic of a proposed amendment is "essential" sounds a lot like the "I know it when I see it" test. See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). The judiciary, however, must make decisions based on reason, not instinct. ¶74 and The lack of manageability can be gleaned by comparing contrasting Justice Dallet's concurrence to the dissent. Justice Dallet states: 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 [Wisconsin] Constitution. . . . . In this case, the legislature's summary was sufficient and . . . [the proposed amendment] was thus validly submitted to the people. Although . . . [the proposed amendment's challengers] point[] to some of the amendment's particulars that weren't described specifically in the ballot language, . . . a summary always leaves some details out. The legislature's description of . . . [the proposed amendment] 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. Justice Dallet's Concurrence, ¶¶133, 135. At no point does Justice Dallet explain why an "expanded definition of 'victim'" is not "so "arguable significant." changes to the She state also does not constitutional explain rights why of the accused and this court's jurisdiction" are not "so significant." Her analysis is conclusory, and a reasonable certainly consider such changes to be significant. 5 person could No. ¶75 Recognizing the inherent vagueness of 2020AP2003.rgb the "every essential" test, Justice Dallet "acknowledge[s] . . . that this rule doesn't always provide clear answers." Id., ¶134. In actuality, the "every essential" test is incapable of providing any answers whatsoever. perception, not The test is based purely on subjective 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. judges to make judgment calls all the time[.]" We trust Id. Her view invites judicial overreach because it is based on the rule of judges rather than the rule of law. ¶76 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 constitutional grant proposed of constitutional legislature's work. As amendment, authority the to majority without second notes, any express guess only once the 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. Majority op., ¶¶1, 5 (citing State ex rel. Thomson v. Zimmerman, 264 Wis. 644, 60 N.W.2d 416 (1953)). ¶77 Justice Dallet is also wrong to suggest her approach is "the only way to preserve both the legislature's authority to 6 No. 2020AP2003.rgb 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 [Wisconsin] Concurrence, ¶134. proposed Constitution." Justice Dallet's Several steps must be followed before a amendment even becomes a ballot question, and people maintain control over the process at every step. XII, Section 1 of the amendment procedure. the members Wisconsin Constitution Article specifies elected art. the As relevant to this case, "a majority of to each of the two houses [of legislature]" must vote in favor of a proposed amendment. Const. the XII, § 1. amendment . . . shall be Thereafter, entered on their "such journals, the Wis. proposed with the yeas and nays taken thereon, and referred to the legislature to be chosen at the next general election, and shall be published for three election[.]" months Id. previous to the time of holding such In the next legislative session, which occurs after a legislative election, "a majority of all members elected to each house" must vote in favor of the proposed amendment. Id. The legislature then has a "duty" to "submit" the proposed amendment to the people, although the legislature has the power to "prescribe" the "manner" and "time" of submission. Id. If a majority of people who vote on whether to adopt the proposed amendment approve its adoption, the amendment is ratified. Id. An early treatise on the Wisconsin Constitution explains this "gauntlet" decreases the chance "that a very unwise measure" could succeed. See A.O. Wright, An Exposition of the Constitution of the State of Wisconsin 153 (Revised & Improved 7 No. ed. 1897). Id. 2020AP2003.rgb "Ample opportunity is . . . given for discussion[.]" The people, without judicial intervention, can "preserve" their popular sovereignty. ¶78 never Similar to Justice Dallet, Justice Ann Walsh Bradley defines an "essential," instead concluding "[b]y any definition of the word" the ballot question in this case was legally inadequate. Dissent, ¶185. 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. ¶79 Illustrating the problem, the dissent declares, "I do not argue . . . that all components of an amendment [need] be presented in a ballot question. I would maintain, Id., ¶187. only that Our precedent establishes, and 'every essential' is required." Nothing in this judicially conceived test tells us how to distinguish between a mere "component" of a proposed amendment and an "essential." Nor does the dissent. Regardless, as the majority opinion explains, "our precedent" requires no such thing. In its certification of this appeal, the court of appeals noted, "there is little case law examining the 'every essential' test . . . and, in fact, applying this test to a given ballot question." Initiative, Inc. v. Wis. Elections Comm'n, no case law Wis. Just. No. 2020AP2003, unpublished certification, at 3 (Wis. Ct. App. Dec. 21, 2021). The majority explains the suspect origins of the "every essential" test in a nuanced, scholarly manner; in contrast, the dissent simply takes one sentence from a century-old case out of 8 No. context and runs with it. 2020AP2003.rgb "[I]t is tempting for a creative court to reach a decision by extorting from precedents something which they do not contain. Once embarked on this path, it is too easy for the court to extend [its] precedents, which were themselves the extensions of others, till, by this accommodating principle, authority a whole or system interference Wis. 2d 172, ¶202 of law of the (Kelly, is built [people]." J., up without the Bartlett, 393 concurring/dissenting) (modifications in the original) (citations and quotation marks omitted). ¶80 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 legislature amendment has amendment[.]" the is submitted "duty . . . to to submit See Wis. Const. art. XII, § 1. the people, such the proposed 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" occurred. of submission See id. but with whether submission even Applying the counterfactual test therefore does not usurp the legislature's authority but rather ensures the legislature has fulfilled its constitutional duty. ¶81 The reasoning underlying Justice Dallet's defense of the "every essential" test is difficult to discern and seemingly contradictory. For example, she states: 9 "whether an amendment No. 2020AP2003.rgb was submitted to the people always requires courts to analyze whether the manner the legislature prescribed satisfied that constitutional requirement." Concurrence, ¶134 n.9. for submission Justice Dallet's Justice Dallet seems to concede she is in fact proposing judicial review of the manner of submission. She fails to appreciate the fundamental distinction between what the legislature submitted to the people and how the legislature made a submission. little respect In conflating the two, Justice Dallet shows for the constitutional prerogatives of a coordinate branch. ¶82 The counterfactual test is straightforward and capable of judicial review: false information? Did the ballot question contain clearly 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. factual determination is difficult evidence is lacking or conflicting. only to the extent A that 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. ¶83 also Justice Dallet responds that "the majority's approach requires judgment to determine 'fundamentally counterfactual.'" op., ¶51). 'fundamentally' She continues, implies, what questions are Id., ¶134 (quoting majority "[a]s superficially the use of the counterfactual questions would pass the majority's test. word ballot But the majority offers no principled way of distinguishing between superficially 10 No. counterfactual questions." ¶84 the and 'fundamentally' 2020AP2003.rgb counterfactual ballot Id. As a preliminary matter, Justice Dallet misunderstands word "fundamentally." presumption: The word merely signals a if a judge is unsure whether information in a ballot question is counterfactual, the judge should assume it is not. This presumption constitutionally indeterminacy. conferred respects on the the power legislature the and people minimizes As well as Justice Dallet's argument can be understood, she seems to suggest that because the counterfactual test has, as most legal tests do, a degree of indeterminacy when the facts are unclear, any objection to the "every essential" test grounded in that test's indeterminacy is equally applicable to the counterfactual test. ¶85 the Not so. Justice Dallet commits the "fallacy of the beard." classic book Straight and Crooked Thinking, the In author explained: [W]e may deny the reality of difference because there is continuous variation between the different things. A very old example illustrates this error. One may throw doubt on the reality of a beard by a process beginning by asking whether a man with one hair on his chin has a beard. The answer is clearly "No." Then one may ask whether with two hairs on his chin a man has a beard. Again the answer must be "No." So again with "three," "four," etc. At no point can our opponent say "Yes," for if he has answered "No" for, let us say, twenty-nine hairs and "Yes" for thirty, it is easy to pour scorn on the suggestion that the difference between twenty-nine and thirty hairs is the difference between not having and having a beard. Yet by this process of adding one hair at a time, we can reach a number of hairs which would undoubtedly make up a beard. The trouble lies in the fact that the difference between a beard and no beard is like the 11 No. 2020AP2003.rgb difference between white and gray in the fact that one can pass by continuous steps from one to the other. In this argument, the fact of continuous variation has been used to undermine the reality of the difference. Because there is no sharp dividing line, it has been suggested that there is no difference. This is clearly a piece of crooked argument[.] Robert H. Thouless, Straight and Crooked Thinking 169–70 (2d prtg. 1932). test is Justice Dallet suggests that determining whether a objective is itself a subjective therefore cannot be done properly. determination and 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. Justice Dallet never argues the "every essential" Notably, test will constrain judges acting in good faith to the same extent as the counterfactual test. ¶86 Justice counterfactual Justice test Dallet's struggles to Dallet as mischaracterizes "somehow Concurrence, understand perfectly that ¶134 the objective free my from n.10. attributes of the subjectivity." Justice of opposite Dallet perfectly subjective and continuum. A test can be deemed subjective or objective without 12 are view ends of a No. being perfectly so. 2020AP2003.rgb The counterfactual test is not perfectly objective, nor is recognizing that a man has a beard. ¶87 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. would instead assigned role, supplant the arrogate the Three justices legislature's power to constitutionally 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. "every essential" test, judges Without elaboration on the are licensed to inject their political will into the analysis, potentially substituting their will for the will of the people. ¶88 Ironically, these justices suggest that if the judiciary is denied the power to discard election results at will, democracy will suffer. misunderstanding of the Their concerns arise from both a constitutional purpose of a ballot question and a distrust of voters. For example, the dissent complains, not "[t]hose voters who do 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 13 No. discussed in identifies the the majority particular decide to ratify——or not. Commission explains, opinion, proposed a ballot amendment 2020AP2003.rgb question the merely voters will Second, as the Wisconsin Elections "[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." (Citation omitted.) By analogy, a ballot for President of the United States does not describe the candidates or their platforms. Voters are trusted to inform themselves. ¶89 Alexis de Tocqueville observed, "[s]carcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question." 1 Alexis de Tocqueville, Democracy in America 357 (Francis Bowen ed., Henry Reeve trans., 1863). If true, government by the people would be replaced with judicial supremacy. Because this court rightly refuses to entertain political questions in this case, I respectfully concur. ¶90 KINGSLAND I am authorized to state that Chief Justice ANNETTE ZIEGLER and Justice PATIENCE this concurrence. 14 DRAKE ROGGENSACK join No. ¶91 REBECCA FRANK DALLET, J. (concurring). 2020AP2003.rfd 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."1 Const. art. XII, § 1. Evaluating whether See Wis. 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. ¶92 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. Because I agree with the majority that WJI's second claim should be rejected based on our longstanding precedent about multiple amendments, I join ¶¶58-59 and 61-65 of the majority opinion. 1 1 No. 2020AP2003.rfd I ¶93 The majority begins by reviewing what it claims to be "our approach to constitutional interpretation," an approach it says seeks "to determine what the constitutional text meant when it was written, commonly called the original public meaning or original understanding." See majority op., ¶¶14, 21. According to the majority, we have "commonly recited" and "consistently described" this as our approach over "many years." ¶22. See id., Thus, according to the majority, our singular approach to constitutional interpretation is originalism and we must follow it, no matter where it leads. See id. ¶¶21-28 (collecting cases). ¶94 First, I disagree with these conclusions for three reasons. 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 2 court's choice of an No. 2020AP2003.rfd interpretive methodology like originalism does not bind later courts to use that same methodology. A ¶95 Before addressing the majority's unconvincing defenses of originalism and my competing view of how to interpret the Wisconsin Constitution, it's useful first to lay out what the majority means by "originalism," why it is wrong to claim that originalism is interpretation, our consistent approach and its arguments for are a number of all spring from to why constitutional originalism is variations on required. ¶96 There originalism, but propositions: (1) the meaning of different the "the following constitutional three text is fixed at the time of ratification; (2) judges should give that meaning a primary role in constitutional interpretation; and (3) pragmatic modern concerns and consequences are not allowed to trump discoverable original meaning." Originalism As Faith 8 (2018). these propositions. It See Eric J. Segall, The majority agrees with each of says that "our solemn duty in constitutional interpretation is to faithfully discern and apply the constitution as it is written." See majority op., ¶28. To do that, the majority explains we must identify the "original public meaning or original understanding" of the constitutional provision we are interpreting, and apply that original public meaning no matter the consequences. See id., ¶21. In this respect, the majority agrees with most contemporary academic and 3 No. 2020AP2003.rfd judicial originalists who, in a break from their predecessors,2 also focus meaning. on identifying and applying the original public See, e.g., Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 856 (1989). And although the majority acknowledges that we have not always done so, it argues that our cases have "consistently described our task as one focused on the meaning of the text," and have recently "doubled down on" an approach focused on the original public meaning. See majority op., ¶¶22-23. ¶97 This claim, however, is incorrect. In fact, in a number of recent cases the court has taken a more pluralistic approach to constitutional interpretation account more than just text and history. that takes into See Becker v. Dane County, 2022 WI 63, ¶33, 403 Wis. 2d 424, 977 N.W.2d 390 (lead op.) (rejecting plaintiffs' invitation to revisit our case law regarding the separation of powers to fit better with their account of the original public meaning); State v. Roundtree, 2021 WI 1, ¶¶20-52, 395 Wis. 2d 94, 952 N.W.2d 765 (analyzing the text and history of the Second Amendment along with precedent and empirical evidence about the risks underlying the prohibition on felons possessing firearms); Miller v. Carroll, Earlier originalists tended to focus on the intent of the framers. See Robert Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 13-14 (1971). But this approach was abandoned in the face of "serious problems" identifying whose views counted, and how to discern intent when the framers' views differed. See Erwin Chemerinsky, Worse Than Nothing: The Dangerous Fallacy of Originalism 17 (2022) (noting, for example, James Madison's and Alexander Hamilton's disagreements about the authority of Congress and the executive branch). 2 4 No. 2020AP2003.rfd 2020 WI 56, ¶¶21-35, 392 Wis. 2d 49, 944 N.W.2d 542 (applying United States Supreme Court precedent to conclude that a judge's acceptance of a Facebook friend request created a "serious risk of actual bias" that violated a litigant's Due Process rights); State v. Knapp, 2005 WI 127, ¶¶60-63, 75-83, 285 Wis. 2d 86, 700 N.W.2d 899 (refusing to interpret Article I, Section 8 of the Wisconsin Constitution in lockstep with the Fifth Amendment based on the need to deter intentional Miranda3 violations). And these decisions and others like them were criticized by some justices as non-originalist, originalist. or at least not sufficiently See, e.g., Becker, 403 Wis. 2d 424, ¶76 (Rebecca Grassl Bradley, J., dissenting) (contending that the original public meaning of the Wisconsin Constitution contradicted the lead opinion and the concurrence's interpretation); Roundtree, 395 Wis. 2d 94, at ¶67 (Rebecca Grassl Bradley, J., dissenting) (asserting that "the majority contravenes the original public meaning of the Second Amendment"); State v. Christen, 2021 WI 39, ¶65, 396 concurring) Wis. 2d 705, (criticizing 958 the N.W.2d 746 (Hagedorn, J., majority's analysis as "insufficiently rooted in the original public meaning of the Second Amendment"); State v. Halverson, 2021 WI 7, ¶45, 395 Wis. 2d 385, 953 N.W.2d 847 (Hagedorn, J., concurring) (arguing that Knapp is "non-textual" and "ahistorical"); Miller, 392 Wis. 2d 49, ¶104 (Hagedorn, J., dissenting) ("Today's decision continues the march away from the original public meaning of our Constitution."). 3 Thus, the majority cannot Miranda v. Arizona, 384 U.S. 436 (1966). 5 claim that No. 2020AP2003.rfd originalism is somehow our consensus approach to constitutional interpretation. ¶98 Setting aside its claim that originalist interpretation is our dominant approach, the majority offers a simple account for why we should embrace its particular brand of originalism. The argument goes like this: We have only the judicial power, "the power to interpret the law in appropriate cases." See majority op., ¶18. And that power is limited to applying the law as it exists, not as we might want it to be. See id. Since the Wisconsin Constitution is written law, it should be interpreted in the same way as other written law, "as we find it." Id., ¶20. The way you do that is by trying to ascertain the constitution's meaning from the text, reading it reasonably, in context, in the way in which it would have been understood by people when it was written. Id., ¶21. That is what we have done in the past, see id., ¶¶22-26, and that is what we should continue to do in order to ensure that we "leave policy choices to the people." ¶99 Id., ¶21. In sum, the majority's defense of originalism rests on two related arguments. First, originalism is simply what we do whenever we read any text; we look at the words, figure out what they meant to people at the time they were written, and apply that meaning. And second, originalism helps separate judicial decisions from the policy views of individual judges and keeps the authority to change the constitution where it belongs, with the people acting through their elected representatives. 6 No. 2020AP2003.rfd B ¶100 Both of the majority's arguments for originalism are unconvincing. Its argument that originalism flows directly from the fact that our constitutions are written is circular and thus doesn't support constraining its judges conclusion. fails And because the originalism argument does about not, and cannot, accomplish that goal. 1 ¶101 "Our constitutions——state and federal——are written documents," and according to the majority they "should be read as such." Majority op., ¶16. In the majority's view, that means we must "ascertain and enforce the rights and protections that are already there, fixed by the people in the text of the constitution." Id. ¶18. In short, the Wisconsin Constitution was written down, and because it was written down, we have to look for its original public meaning because that's just what it means to interpret written law. See id. ¶102 Although this argument is somewhat common4 it suffers from a fatal flaw: defines it assumes its own conclusion. "interpretation" as "synonymous with It simply originalist interpretation" and then uses that definition as evidence that only originalist interpretation is permissible. Andrew B. Coan, Indeed, many scholars have asserted that "'our commitment to a written constitution' entails not only judicial review but also an originalist approach to constitutional interpretation." Andrew B. Coan, The Irrelevance of Writtenness in Constitutional Interpretation, 158 U. Pa. L. Rev. 1025, 1027 (2010) (quoting source). 4 7 No. 2020AP2003.rfd The Irrelevance of Writtenness in Constitutional Interpretation, 158 U. Pa. Chemerinsky, Originalism L. Rev. Worse 26 1025, Than (2022) 1030 Nothing: (2010); The ("[A]rguments see also Dangerous from Erwin Fallacy definition of aren't arguments at all; they do not defend their conclusion but assume it."). The normative question of how we should interpret the constitution thus remains unanswered. ¶103 The majority's only response is to complain that "one wonders why we bother with a written constitution at all." majority op., ¶28 n.9. See But there are all kinds of reasons why—— and none of them require us to be originalists. "For example, one might be committed to a written constitution as a focal point for legal coordination in the manner of the rules of the road; as a flexible framework for common law elaboration; as a locus of culture; normative or pluralistic as one practice supra at 1047. discourse of of in many a flourishing legitimate constitutional constitutional ingredients adjudication." in a Coan, Each of these approaches honors and gives effect to constitutional text. And the fact is, neither the United States nor the Wisconsin constitutions tell us which one we should choose. See Cass R. Sunstein, There Is Nothing That Interpretation Just Is, 30 Const. Commentary 193, 211-12 (2015). (explaining that the Constitution does not "set out the rules for its own interpretation."). ¶104 In making that choice, it's important to remember that "[t]he meaning of the Constitution must be made rather than found, not in the grand (and preposterous) sense that it is 8 No. 2020AP2003.rfd entirely up for grabs, but in the more mundane sense that it must be settled by an account of interpretation that it does not itself contain." simplistic Id. at 212. description of In other words, the majority's constitutional interpretation as "faithfully discern[ing] and apply[ing] the constitution as it is written" is worthless. See majority op., ¶28. Sure, sometimes our constitution uses very clear language. It doesn't take know, anything beyond the constitution's words to for example, that someone licensed to practice law in Wisconsin for only four years can't serve as a member of this court. See Wis. Const. art. VII, § 24 (requiring a license to practice law in Wisconsin for "5 appointment"). years immediately prior to election or But you don't need originalism to reach that conclusion, just the text. ¶105 Most broadly, and of our for constitution, good reasons. by contrast, Indeed, was the written Wisconsin Constitution——now the sixth oldest in the nation, see Jack Stark & Steve Miller, The Wisconsin State Constitution 11 (2d ed. 2019)——came about only after a prior, more specific proposed constitution was rejected by the people, largely because tried to settle too many then-contemporary policy disputes. it See Joseph A. Ranney, Wisconsin and the Shaping of American Law 46 (2017). 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. See Ray A. Brown, The Making of the Wisconsin Constitution (Part II), 1952 Wis. L. Rev. 23, 63 ("[T]he wisdom, conscious or unconscious, of 9 No. the founders by concentrating on fundamental 2020AP2003.rfd outlines and refraining in the main from details, provided the state with a constitution, which . . . has permitted the government to grow and adapt itself to new conditions and new concepts."). ¶106 The breadth and adaptability of our constitution is evident in its general terms. many clauses The declaring Wisconsin broad Constitution principles contains, in for example, a guarantee of "a certain remedy in the law for all injuries, or interference wrongs," with, a prohibition the rights against of "control conscience," of, or 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 See Wis. Const. art. I, §§ 9, 18, 22. recognized that by writing these provisions broadly it would be up to future judges and interpreters to decide what they mean. 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." of Statehood 883 (Milo M. Quaife, ed. 1928). The Attainment They weren't trying to write specific rules settling difficult questions for all time. States wide Instead, they were——like the framers of the United Constitution——trying enough to allow for to "provide considerable 10 a political latitude platform within which No. 2020AP2003.rfd future generations could make their own decisions." J. Ellis, The Revolution, Living Quartet: 1783-1789, Originalism Orchestrating at 27 219 (2015); (2011) the see See Joseph Second also American Jack ("[C]onstitutional Balkin, framers and ratifiers very often use open-ended language that deliberately delegates questions of application to future interpreters."). 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. 2 ¶107 The majority's second defense of originalism——that it constrains judges to their proper role by focusing them on the text and history of the Wisconsin Constitution, which provide a basis for judicial decisions that differ from an individual judge's personal views——also falls flat. ¶108 The central problem with this argument is that the search for original meaning is almost always fruitless. "The reality is that for most provisions, this single understanding [of the original public meaning] Chemerinsky, supra at 56. Wisconsin Constitution sources Wisconsin draw Constitution adopted it. sources to as on not exist." See And this is just as true of the it is Constitution, if not more so. fewer did in meant of the United States To begin with, there are far trying to the to determine people who what the drafted and There are only a handful of volumes collecting regarding the ratification debates. 1846 and 1847-48 conventions and the See The Movement for Statehood, 1845-1846 11 No. (Milo M. Quaife, Quaife ed. ed. 1919); 1918); The The Convention Struggle Over of 2020AP2003.rfd 1846 Ratification, (Milo M. Quaife, ed. 1920); Attainment, supra. (Milo M. 1846-1847 And there are a couple of law review articles from the 1940s and 1950s as well, but they review basically the same materials contained in the print volumes. See Ray A. Brown, The Making of the Wisconsin Constitution (Part I), 1949 Wis. L. Rev. 648; Brown, The Making of the Wisconsin Constitution (Part II), supra. ¶109 What single, even universally Wisconsin these accepted Constitution. questions that limited sources original Instead, consumed the reveal public they is of one of the that the meaning demonstrate drafters not the Wisconsin Constitution——whether the document would retain the failed 1846 constitution's property rights provisions to prohibiting married women, banking, and guaranteeing creating an elected judiciary, for example——tell us nothing about how to resolve contemporary cases. See Brown, Constitution (Part II), The Making of the Wisconsin supra at 26; Attainment of Statehood, supra. see also generally The 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. See Brown, The Making of the Wisconsin Constitution (Part I), supra at 689 (noting that although some provisions of the 1846 constitution's bill of rights were "greatly altered before final adoption, there was general agreement as to the provisions which it should contain"); Brown, The Making of the Wisconsin Constitution (Part II), supra at 57 ("The committee in charge 12 No. 2020AP2003.rfd of" Article I, the Declaration of Rights, "adopted this article [from the 1846 constitution] without material changes, and so generally accepted were they, that no debate arose on" them). 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. acknowledges, there is no evidence from As the majority the constitutional convention or ratification debates that sheds any light on its meaning. See majority op., ¶32. ¶110 The majority suggests that when these sources are unclear or silent, early legislative actions can identify the original public meaning of uncertain constitutional provisions. See id. identify But that too is inadequate. what early legislative First, any effort to enactments mean about the constitution requires sifting through voluminous materials that often conflict with one another. Compare Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, congresses 332-66 (2021) demonstrating (reviewing that "[t]he evidence from nondelegation early doctrine simply was not an accepted feature of the constitutional fabric at the time of ratification"), with Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490, 1494 (2021) (arguing that "[a]lthough the history is messy," it supports a version of the nondelegation doctrine). Conflicting history means that early legislative enactments are of little use in identifying what the constitution means. conflicts, courts Worse yet, rather than acknowledge these often cherry-pick 13 historical examples to No. support their preordained conclusions rightly derided as "law office history." 2020AP2003.rfd instead, a practice See Chemerinsky, supra at 66; see also, e.g., Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228, 2324 (2022) (Breyer, Sotomayor, & Kagan, JJ., dissenting) (noting that "early law in fact does provide some support for abortion rights" and that the majority's citation to laws adopted after the Fourteenth Amendment was ratified was "convenient . relying early on . constitution's , might nevertheless it legislative There legislature. but original problematic. legislature . are not is window inaction public all have Second, as of meaning kinds acted constitutionally dressing"). of evidence is reasons in a permissible the particularly why manner for an early that a is later See Leah M. Litman, Debunking Antinovelty, 66 Duke L.J. 1407, 1427-29 (2017) (identifying some of these reasons including new factual and legal developments); see also Chemerinsky, supra at 66 ("The absence of a specific practice at a specific time does not mean that those then in power thought the practice was unconstitutional."). Finally, early legislative enactments are "at best weak evidence of original meaning." Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 398 (2002). Although early legislative enactments might reflect what legislators thought the constitution meant, their interpretations might not have been widely held. See id. Moreover, legislators are not "disinterested observers;" they are capable of misinterpreting the constitution or ignoring its meaning entirely when it is politically expedient. 14 See id.; No. 2020AP2003.rfd Chemerinsky, supra at 65 (explaining that it is "possible that the Framers wrote the [relevant constitutional provision] in an effort to outlaw the practice, but faced with the political realities of governing they saw no alternative but to engage in the forbidden behavior."). Thus, their actions cannot meaningfully inform our interpretation of what the constitution means. ¶111 In addition to the problems with identifying original public meaning, "[o]ne of the largest difficulties in applying originalism is choosing the level of abstraction at which the original understanding is stated." Chemerinsky, supra at 67. This issue is illustrated by the majority's discussion of early historical practices regarding constitutional the majority constitutional explains, amendments early to the amendments. legislatures people as simple submitted yes-or-no questions, for the amendment or against the amendment. majority op., ¶33-34. As See Accordingly, the language that appeared on the ballot regarding those early amendments didn't describe the substance or intended effect of the proposed amendments at all. See id. ¶35. The legislature moved away from that practice in fits and starts beginning in the 1870s, however, directing that somewhat more descriptive language appear on the ballot during that period. See id. ¶¶37-38. And that practice eventually solidified into a statute requiring that a "concise statement of the nature" of the proposed amendment appear on the ballot. See Wis. Stat. ch. 5, § 39 (1898); see also Wis. Stat. § 5.64 (2021-22). 15 No. 2020AP2003.rfd ¶112 From this history, the majority derives the principle that "an amendment only needs to be submitted to the people for ratification," no description required. See majority op., ¶35. Fair enough, but at this level of abstraction the majority's purported original public meaning tells us nothing. What about when the legislature does describe an amendment's substance on the ballot? Can description? the legislature An inaccurate one? then offer an incomplete If the purported original public meaning of Article XII, Section 1 doesn't answer those questions for the majority then something else has to. ¶113 Whatever that something is, it's not originalism. That is because, as 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, tells us nothing about how to resolve real cases. it 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." majority op., ¶28. See That is because the constitution forces us to choose between competing interests all the time, and valueneutral judging is therefore impossible. Article I, Section 11 of the Wisconsin Take, for example, Constitution, which provides that "[t]he right of the people to be secure in their persons, houses, searches and papers, seizures and shall effects not 16 be against unreasonable violated." What is No. 2020AP2003.rfd reasonable when it comes to drone surveillance or searching cell phones could isn't never dictated be an by any "original original understanding. understanding" on these There 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." See Wis. Const. art. XII, § 1. ¶114 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, is "[t]he determinate accepts." only leads kind to of conclusions that that reasonably practically no one David A. Strauss, Can Originalism Be Saved?, 92 B.U. L. Rev. 1161, 1162 (2012). the originalism Wisconsin Constitution For example, Article I, Section 9 of 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 17 No. 2020AP2003.rfd was rejected was because it guaranteed a modicum of autonomy to women through property. today its provisions about married See Ranney, supra at 46-47. that, because the original women owning Yet we would never say public meaning of this provision didn't include women, women are therefore not entitled to a "remedy in the laws." not the only example. Wis. Const. art. I, § 9. And that's 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 Godfearing forefathers." See Brown, The Making of the Wisconsin Constitution (Part II), supra at 57. conclusion that the original Although this supports the 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. 3 ¶115 In summary, the majority's arguments fail to defend originalism as a Originalism isn't theory of required merely Constitution was written down. ways of interpreting the constitutional because interpretation. the Wisconsin Rather, there are many plausible constitution originalist and true to the text. that are both non- See Coan, supra at 1047. And originalism doesn't constrain judges by providing objective 18 No. answers to difficult constitutional questions. 2020AP2003.rfd See Chemerinsky, supra at 166 ("Originalism fails on its own terms to provide a constraint on judging. It is only a fig leaf allowing a justice to pretend to adhere to a neutral method.") After all, the search for an original public meaning is usually impossible, and even when it's not, leads to useless insights, abhorrent results, or both. ¶116 Many of originalism's most vocal proponents suggest that rejecting it means embracing the rule of "philosopher-king judges [who] swoop down from their marble palace to ordain answers rather than allow the people and their representatives to discuss, debate, and resolve them." Neil Republic, If You Can Keep It 113 (2020). Gorsuch, A The majority takes a similar tack, accusing me of "open[ly] pining for the freedom to go beyond the meaning of constitutional language." op., ¶22 n.6. But this criticism misses See majority the point. The "constitutional language" alone doesn't resolve difficult cases. Constitutional adjudication complicated than originalism or that. any is And and for other——can always that provide has reason, been no determinate more theory—— answers to difficult constitutional questions. ¶117 If that is true, then interpreting our constitutions? how should we go about In my view, we should use the same kind of pluralistic approach I have identified previously. See State N.W.2d 732 United v. Hoyle, (Dallet, States or 2023 J., WI 24, ¶109, dissenting). Wisconsin 406 We constitutions' 19 Wis. 2d 373, should text analyze and 987 the history No. 2020AP2003.rfd 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.'" Id. (quoting Chemerinsky, supra at 207). C ¶118 In correct that interpreting closing I note originalism the Wisconsin that is even our if consensus Constitution, that nevertheless not be binding in future cases. ¶¶22-26. the majority were approach approach to would See majority op., That is because reliance on a particular method of interpretation in one case doesn't bind future courts to use that same method in all future cases. ¶119 We have never said that our methodological choices bind us in future cases even though we have occasionally assumed so in other contexts. For example, State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110 and subsequent cases applying it appear to assume that Abbe its statutory-interpretation Gluck, The States As framework is Laboratories binding. of See Statutory Interpretation: Methodological Consensus and the New Textualism, 119 Yale L.J. 1750, 1800-03 (2010) (noting that "most of [our] court's disputes" about Kalal "are about how [its] framework should be applied, not whether it controls."). good reasons to doubt that assumption. But there are After all, the United States Supreme Court doesn't treat prior methodological choices as binding in either statutory or constitutional cases. 20 Id. at No. 1823 ("The stare U.S. decisis . Supreme Court . the . in does not context apply of 2020AP2003.rfd methodological articulating binding statutory interpretation frameworks."); Richard H. Fallon, Jr., Constitutional Constraints, 97 Calif. L. Rev. 975, 1013 (2009) ("Although methodological disputes grow heated in some cases, it is striking that in the domain of constitutional adjudication, the justices have seldom exhibited much interest in attempting to bind either themselves or each other, in advance, to the kind of general interpretative approaches that academic theorists champion."). ¶120 There are several likely reasons the Court does not do so. For one thing, abstract, general methodologies like originalism (or Kalal, for that matter) are an awkward fit with stare decisis, which aims to treat like cases alike. M. Oldfather, Interpretation, Methodological 80 Brook. L. Pluralism Rev. 1, and 42-44 See Chad Constitutional (2014). If the choice of originalism in one constitutional case is treated as binding that means all constitutional using originalist methods. would upend existing cases must be decided But this one-size-fits-all thinking precedent because "[a]ny form of originalist analysis with bite . . . would generate unpalatable results when viewed from a contemporary perspective." 45. For 5 example, Brown v. Board 347 U.S. 483 (1954). 21 of Education,5 Id. at same sex No. 2020AP2003.rfd marriage, virtually all rights of women6 and racial minorities, and any number of other fundamental rights are difficult, if not impossible, to justify on originalist grounds. supra at 92-114. all substantive See Chemerinsky, Because "the Court would be unlikely to find conclusions generated by a particular methodology palatable," avoiding those results would mean having to abandon the supposedly settled choice of methodology or twisting that method so much that it no longer really applied at all. any See Oldfather, supra at 45-46. binding methodology, except Safer then not to adopt perhaps in determining the application of an already settled constitutional interpretation.7 See id. at 39-42 (explaining that stare decisis can play a role when it comes to "decision rules," that is, rules that help implement an existing interpretation of the Constitution like Indeed, just last year, the United States Supreme Court concluded that "history and tradition" led to the "clear answer . . . that the Fourteenth Amendment does not protect the right to an abortion." Dobbs, 142 S. Ct. at 2248. But as in District of Columbia v. Heller, 554 U.S. 570 (2008), the history on which the majority relied is contested. See Dobbs, 142 S. Ct. at 2324 (Breyer, Sotomayor, & Kagan, JJ., dissenting) ("[E]mbarrassingly for the majority . . . early law in fact does provide some support for abortion rights."); see also Heller, 554 U.S. at 595 (arguing that the text and history of the Second Amendment supported a constitutional right to possess a gun for self-defense in the home); id. at 640 (Stevens, J., dissenting) (contending that text and history supported the opposite result). 6 For example, the United States Supreme Court's decision last year in New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022) explained that "text and history" are the test for whether firearm regulations are permitted by the Second Amendment. Id. at 2127. But in doing so, the Court never said that "text and history" should be the sole test for interpreting every provision of the United States Constitution. 7 22 No. the tiered-scrutiny framework for claims 2020AP2003.rfd under the Equal Protection Clause). ¶121 For another thing, reasonable judges disagree about the best way to interpret the constitution. If everyone agreed about the appropriate method for interpreting the constitution, or if there were a clear best method, there would be no need to treat methodologies like originalism as binding in future cases— —consensus would already accomplish that goal. But even self- professed originalists disagree about how to do originalism, to say nothing of those who believe non-originalist methods are best. See Scalia's Segall, and supra Justice at 123 Thomas's (explaining "ideologies that have Justice nuanced differences such as their use of precedent, tradition, and what evidence counts toward original meaning."). In the face of such disagreements, labeling a particular method of constitutional interpretation as binding precedent cannot force consensus. ¶122 Indeed, disagreement about the proper method of interpreting the Wisconsin Constitution is almost as old as this court. In Borgnis v. Falk Co., 147 Wis. 327, 133 N.W. 209 (1911), two members of the court wrote at length to express their divergent views about constitutional interpretation. the appropriate methods of Chief Justice Winslow, writing for the majority, favored the view that "the changed social, economic, and governmental conditions and ideals of the time . . . must also logically . . . become influential factors in the settlement interpretation." Id. of at problems 349-50. 23 of But construction Justice and Marshall No. disagreed, asserting that "[i]f the 2020AP2003.rfd constitution is to efficiently endure, the idea that it is capable of being resquared, from time to time, to fit new legislative or judicial notions of necessities in præsenti whenever and wherever advanced." concurring). Compare And Hoyle, that 406 . . . must be combated Id. at 375 (Marshall, J., disagreement Wis. 2d 373, continues ¶¶83-89 to this day. (Hagedorn, J., concurring), with id., ¶¶106-09 (Dallet, J., dissenting). We should not pretend that these disagreements are settled merely because four members of the court have, in a few cases, applied a particular method of constitutional interpretation. Such decisions do not conclusively bind this court to originalism any more than Chief Justice Winslow's opinion more than a century ago compels us to reject it. II ¶123 Turning now to the specific issue in this case, Wisconsin Justice Initiative (WJI) argues that the way in which Marsy's Law was submitted for ratification violated two aspects of Article XII, Section 1, which governs the process by which the legislature Constitution. may propose First, WJI amendments asserts that to the Wisconsin the language that appeared on the ballot describing the proposed amendment was incomplete, inaccurate, or perhaps misleading, and thus the amendment wasn't truly "submit[ted] . . . to the people" for ratification. See Wis. Const. art. XII, § 1. And second, because Marsy's Law affects the rights of crime victims and the accused in different ways, WJI concludes that it is "more than 24 No. 2020AP2003.rfd one amendment," and thus should've been submitted to the people separately. See id. ¶124 I agree with the majority's analysis of why, based on our longstanding precedent about second claim should be rejected. multiple amendments, WJI's I therefore join ¶¶58-59 and 61-65 of the majority opinion. I disagree, however, with the majority's explanation of why, despite the issues WJI identifies with the language that appeared on the ballot, Marsy's Law was nonetheless "submit[ted] to the people" as required by Article XII, Section 1. A ¶125 Amendments to the Wisconsin Constitution may be proposed by the legislature through the process set forth in Article XII, Section 1. It provides that if a proposed amendment is approved by a majority vote of two consecutive legislatures, "entered on [the legislature's] journals, with the yeas and nays taken thereon," and published for three months prior to the next general election, "it shall be the duty of the legislature to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe." Wis. Const. art. XII, § 1. "[I]f more than one amendment [is] submitted" to the people for ratification, each amendment "shall be submitted in such manner that the people may vote for or against such amendments separately." Id. If a majority of voters approve of the amendment, it becomes part of the constitution. See id. 25 No. 2020AP2003.rfd ¶126 The constitution doesn't explain what it means for a proposed amendment to be "submit[ted] . . . to the people." Id. All it says is that the amendment must be submitted "in such manner and at such time as the legislature shall prescribe." Id. ¶127 As discussed previously, for much of the state's early history, the legislature submitted proposed constitutional amendments to the people through simple yes-or-no questions, for the amendment or against the amendment. 34. Accordingly, the language See majority op., ¶¶33- that appeared on the ballot regarding those early amendments didn't describe the substance or intended effect of the proposed amendments at all. ¶35. But over contemporary proposed time practice the of constitutional legislature providing amendments on a moved short the See id., toward the description ballot. See of id., ¶¶37-38. ¶128 That move raised a potential problem. Could the legislature direct that the ballot describe a proposed amendment in a way that deceptive? the people?" was fundamentally incomplete, inaccurate, or Was such an amendment still "submit[ted] . . . to See Wis. Const. art. XII, § 1. In State ex rel. Ekern v. Zimmerman, 187 Wis. 180, 200-02, 204 N.W. 803 (1925), this court said no. We explained that if the legislature "prescribed the form of submission in a manner which would have failed to present the real question, or had they by error or mistake presented an entirely different question, no claim could be made that the proposed amendment would have been validly 26 No. enacted." Id. at 201. That makes sense. 2020AP2003.rfd If the legislature misleads the people, intentionally or not, about what a proposed constitutional amendment would do, then the question was never truly submitted to them at all. ¶129 Ekern didn't stop there though. In the next sentence, it said "[i]n other words, 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." Id. WJI seizes on this sentence, arguing that the language the legislature directed appear on the April 2020 general election ballot regarding Marsy's Law fell short of that mark. The ballot read: Question 1: "Additional rights of crime victims. Shall section 9m of article I of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?" 2019 Enrolled Joint Res. 3. According to WJI, this language doesn't describe "every essential" of Marsy's Law because it fails to mention that Marsy's Law expanded the definition of "victim," altered the state constitutional rights of the accused, and changed our court's jurisdiction.8 ¶130 The imposed a majority disagrees constitutional with WJI's requirement that view that ballot contain "every essential" of a proposed amendment. Ekern language See majority I accept, for purposes of this opinion only, WJI's characterizations of the substantive effects of Marsy's Law. 8 27 No. op., ¶49. According to the majority, 2020AP2003.rfd "the relevant constitutional question is whether the proposed amendment was, at a basic level, submitted to the people for ratification." Id., ¶51. And the majority concludes that the only way in which an amendment could flunk that test is "in the rare circumstance that the question such that voters were not asked to approve the actual amendment." Id. Because fit the is ballot fundamentally language counterfactual about Marsy's Law does not within that narrow category, the majority concludes that the amendment was validly adopted. ¶131 Before getting to why I think the majority's proposed rule is too narrow, it's important to note one thing. the majority's purported allegiance analysis is anything but originalist. to Despite originalism, this 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 And to describing knowing that constitutional early amendments legislatures used on the ballot. 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. ¶132 Accordingly, engages in precisely argued earlier interpretation. interests are to the answer kind is a See supra the that of interest necessary Part legislature's 28 question, part I.B.2. balancing of Here, authority, the majority that I constitutional the explicit relevant in the No. 2020AP2003.rfd constitution, to specify the time and manner in which amendments are to be submitted, and the people's right——also reflected in the constitution——fairly to constitutional amendment. evaluate and vote on a proposed And we know that no matter what the majority says, it has to be balancing these interests. That is because the text could plausibly mean that the legislature has carte blanche when it comes to prescribing how constitutional amendments are submitted to the people and all the history tells us is that the legislature doesn't have to describe the contents of proposed amendments at all. So without saying so, the majority tries to strike an appropriate balance between these interests that preserves both the legislature's discretion and the people's right to decide whether to amend the constitution. ¶133 The problem is that the new rule the majority derives from Ekern and our other cases regarding the submission-to-thepeople requirement is still too narrow. is certainly correct that a Although the majority "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. See majority op., ¶51. An amendment that is described in a way that is so incomplete as to be misleading is also not submitted to the people. the legislature merely "an contained description had described amendment in Article wouldn't to I, Marsy's expand § 9m violate the of the Law on For example, if the definition the ballot of 'victim' Constitution," majority's rule. as that This statement is accurate, it's not fundamentally counterfactual. 29 No. 2020AP2003.rfd 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 ratification. were submitted to the people for This, I think, is what Ekern was referring to when it said the ballot must describe "every essential" of the proposed amendment. See Ekern, 187 Wis. at 201. 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. ¶134 I acknowledge, of always provide clear answers. course, that this rule doesn't 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 30 No. constitution.9 judgment to 2020AP2003.rfd Indeed, the majority's approach also requires determine what questions are "fundamentally counterfactual." See majority op., ¶51 (emphasis added). the word use of the "fundamentally" implies, As superficially counterfactual ballot questions would pass the majority's test. But the majority between offers superficially no principled counterfactual way of and distinguishing "fundamentally" counterfactual ballot questions.10 ¶135 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 Justice Rebecca Grassl Bradley's concurrence accuses me of committing a logical fallacy while making one of her own. See Justice Rebecca Grassl Bradley's concurrence, ¶85. According to her concurrence, the majority's approach is consistent with the constitution because it identifies whether an amendment was "submitted to the people," while mine is impermissible because it focuses on "the manner of submission." See id. ¶¶69-70. But this is a straw man. Both the majority and I are answering the same question: whether Marsy's Law was "submitted to the people." We just disagree on the meaning of that constitutional requirement. Article XII, Section 1 says that "it shall be the duty of the legislature to submit . . . proposed . . . amendments to the people in such manner . . . as the legislature may prescribe." As this language makes clear, the manner of submission and the submission itself are inextricably intertwined. Thus, deciding whether an amendment was submitted to the people always requires courts to analyze whether the manner the legislature prescribed for submission satisfied that constitutional requirement. 9 For this reason, Justice Rebecca Grassl Bradley's concurrence is wrong to suggest that the "fundamentally counterfactual" test is somehow free from subjectivity. See Justice Rebecca Grassl Bradley's concurrence, ¶¶82-84. 10 31 No. 2020AP2003.rfd legislature's description of Marsy's Law is accurate, and the expanded definition of "victim," and arguable changes to the state constitutional jurisdiction weren't rights so described on the ballot. of the significant accused that and they this needed court's to be 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. ¶136 I am authorized to state that Justice JILL J. KAROFSKY joins this concurrence, and Justice ANN WALSH BRADLEY joins this concurrence with respect to ¶¶93-122. 32 No. ¶137 BRIAN HAGEDORN, J. of the American legal (concurring). system is the A central feature idea decided should generally remain that way. 2020AP2003.bh that matters once The default norm is that when an appellate court takes up and decides an issue, its legal determination remains the rule for that court and authoritatively binds lower courts facing the same question. call this "precedent," and it is a practice that goes We back centuries. ¶138 But by necessity, judicial opinions touch on matters beyond the opinion issues or legal in a case. doctrine resolution of They might tangential the to case. describe an law prior but calls not necessary for "dicta." This word comes from the Latin, obiter dictum, which means "something said in passing."1 The issue, a this So while the reason or rationale for a decision (in Latin, ratio decidendi2) constitutes precedent, the other things said by a court do not. This is true even when the court comments on the law. ¶139 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 Obiter Dictum, Black's Law Dictionary 569 (11th ed. 2019). Dicta is the plural of dictum. Dictum, Black's Law Dictionary 569 (11th ed. 2019). 1 2 Ratio Decidendi, Black's Law Dictionary 1514 (11th ed. 2019). 1 No. dicta's crucial role in understanding our 2020AP2003.bh case-deciding, precedent-setting function. ¶140 Both we and the Wisconsin Court of Appeals largely carry out opinions. our case-deciding work through written judicial 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? ¶141 The answer everywhere is no. line in principle to this question almost always and While debate continues over where to draw the 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 nonbinding dicta.3 See, e.g., Central Green Co. v. United States, 531 U.S. 425, 431 (2001); M. Elaine Buccieri, et al., 21 C.J.S. Courts, § 223 ("Dictum is a statement on a matter that is not necessarily involved in the case and is not binding as authority."); Ryan S. Killian, Dicta and the Rule of Law, 2013 Pepp. L. Rev. 1, 8 (2013); Judith M. Stinson, Why Dicta Becomes Holding and Why It Matters, 76 Brook. L. Rev. 219, 223 (2010); David Coale & Wendy Couture, Loud Rules, 34 Pepp. L. Rev. 715, 725 (2007); Michael C. Dorf, Dicta and Article III, 142 U. Pa. L. Rev. 1997, 2000 (1994). 3 Chief Justice Marshall explained the distinction this way: 2 No. 2020AP2003.bh ¶142 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. See, e.g., Stucke v. Milwaukee & Mississippi R.R. Co., 9 Wis. 202, 211 (1859) (explaining a doctrine "rests in without a direct authority in its favor"). mere obiter dicta, 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. See State v. Picotte, 2003 WI 42, ¶19 n.21, 261 Wis. 2d 249, 661 N.W.2d 381; State v. Kruse, 101 Wis. 2d 387, 392, 305 N.W.2d 85 (1981). 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." Am. Fam. Mut. Ins. Co. v. Shannon, 120 Wis. 2d 560, 565, 356 N.W.2d 175 (1984); see also State v. Sartin, 200 Wis. 2d 47, 60, 546 N.W.2d 449 (1996); State ex rel. Ekern v. Dammann, 215 Wis. 394, 403, 254 N.W. 759 It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400 (1821). 3 No. (1934).4 2020AP2003.bh 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. ¶143 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. ¶¶50-58, 324 Wis. 2d 325, 782 N.W.2d 682. surprisingly, was no. Id., ¶58. 2010 WI 35, The answer, somewhat This new approach directly contradicted prior statements of this court. In State v. Koput, for example, we stated it was perfectly appropriate "for the court of appeals or a circuit court to evaluate statements in our opinions on the basis of whether they constitute dictum." 142 Wis. 2d 370, 386 n.12, 418 N.W.2d 804 (1988). The court of appeals was wrong to think "it was required to give equal weight to every statement in our opinions." Id. Nevertheless, in Zarder we concluded that because the court of appeals could not overrule itself (citing Cook v. Cook5), "the court of appeals may not dismiss a statement from concluding that it is dictum." an opinion by this court by 324 Wis. 2d 325, ¶58. The Seventh Circuit acknowledged this as well. Cole v. Young, 817 F.2d 412, 418 (7th Cir. 1987) ("Wisconsin follows the common law rule that dicta——statements of law going beyond the particular facts of the case——do not constitute binding precedent."). 4 In Cook v. Cook, we declared that the court of appeals could not "overrule, modify or withdraw language from its prior published decisions" even if it believed the prior decision "is erroneous." 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). 5 4 No. 2020AP2003.bh ¶144 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. cannot Just because we stated in Cook that the court of appeals overrule itself does not mean it cannot disregard statements that were never binding in the first place. Indeed, the traditional rule is that only the rationale for a decision has precedential effect. See, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400 (1821); Koput, 142 Wis. 2d at 386-87; Lakeshore Com. Fin. Corp. v. Drobac, 107 Wis. 2d 445, 457-58, 319 N.W.2d 839 (1982). Simply because the rule of decision in a case cannot be ignored does not transform non-binding dictum into binding precedent. Logically, Zarder's conclusion does not follow. ¶145 Furthermore, the Zarder rule itself distorts the law. Let me give an example. When I joined the court of appeals, one of the very first questions that came across my desk was a motion for leave to appeal. out three statutory Wisconsin Stat. § 808.03(2) spells criteria for permissive appeals: "(a) Materially advance the termination of the litigation or clarify further proceedings petitioner from in the substantial litigation; or irreparable (b) Protect injury; or the (c) Clarify an issue of general importance in the administration of justice." But form orders from the court of appeals also cited State v. Webb, 160 Wis. 2d 622, 632, 467 N.W.2d 108 (1991) and stated, "Additionally, before leave to appeal will be granted, the petitioner must show a substantial likelihood of success on 5 No. the merits of the appeal." 2020AP2003.bh While the likelihood of success would likely be relevant, I thought it odd that an additional requirement not listed in the statutes was added to the draft order. So I searched for the answer. ¶146 In a discussion tangential to the issue in Webb, this court identified the three statutory criteria governing the consideration of a motion for leave to appeal, and then said, "The defendant must also success on the merits." show a substantial 160 Wis. 2d at 632. likelihood of In support of this statement, the Webb court cited Wisconsin's Appellate Practice and Procedure treatise. Id. That treatise does not list "substantial likelihood of success" as a separate factor, but notes that it is implicit in the enumerated criterion and is likely to influence a decision by the court of appeals to take a case. See David L. Walther, Patricia L. Grove, & Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin, § 9.2 at 9–2 (1990). Therefore, even though the statute does not establish likelihood of success as a separate factor, the court of appeals felt bound disturbing that a peripheral legal matter effectively by Webb's single transformed remark. inartfully-phrased can a offhand have stray that comment much in sentence impact. a supreme It on is a Zarder court opinion into a de facto statutory amendment——at least insofar as the court of appeals was concerned. ¶147 Moreover, 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 6 No. 2020AP2003.bh this view, constitutes a precedential holding of this court. be sure, Zarder never says this. To In fact, Zarder recognizes and describes two divergent definitions of dicta in our cases. 324 Wis. 2d 325, ¶52 n.19.6 See These two lines of cases discuss how to define dicta, not whether our opinions contain dicta. Id. 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. ¶148 Yet for whatever reason, Zarder seems to have distorted how we think about our judicial work-product as well. Perhaps the feeling that everything we do and say must be followed is partially to blame for the increasing length of our opinions. Perhaps it contributes to the seeming itch to address legal matters in our decisions beyond those necessary to resolve a case. Increasingly, we also find ourselves carefully parsing which parts of opinions we "withdraw language" from and which we do not——a practice that does not appear common country or at the United States Supreme Court. around the Furthermore, we 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 Zarder explains that our cases reflect two definitions of dicta and those cases debate what, beyond the holding, has binding effect on future courts. See Zarder v. Humana Ins. Co., 2010 WI 35, ¶52 n.19, 324 Wis. 2d 325, 782 N.W.2d 682. I do not attempt here to choose sides, but rather, to restart this debate. 6 7 No. 2020AP2003.bh call into question the existence of dicta as a general matter. But its directional influence casts a long shadow. ¶149 This departure from judicial norms may also reflect an over-inflated sense of constitutional order. deciding function. our own importance and role in the The judicial role is, at root, a case- See Serv. Emps. Int'l Union, Local 1 v. Vos, 2020 WI 67, ¶31, 393 Wis. 2d 38, 946 N.W.2d 35. And cases are brought by parties whose legal rights and obligations must be determined. Id. Treating the legal rationale for a decision as precedential helps ensure consistency in the application of the law to other parties with similar issues, and gives due respect to the learned members of the judiciary who have come before. But treating as precedential legal discussions or comments not central to deciding a case flips this on its reimagines our opinions as akin to legislation. head, and In effect, it gives this court power to do far more than decide cases, and therefore, makes us likely to transgress our own guardrails—— both constitutional and prudential. ¶150 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. and, in so They are meant to resolve the issue before us doing, set applied in other cases. We make language. mistakes and forth a legal standard that will be But we don't know what we don't know. misdescribe things and use imprecise Perhaps a little judicial modesty is in order. Stray statements or tangential discussions in opinions should not bind 8 No. future courts or demand a stare decisis analysis. 2020AP2003.bh Recognizing dicta serves as a check on the current court, and keeps us in our proper case-deciding constitutional lane. it. We should employ it. We should embrace And neither we nor lower courts should feel compelled to bow before every prior pen-stroke in our opinions. ¶151 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." State ex rel. Ekern v. Zimmerman, 187 Wis. 180, 201, 204 N.W. 803 (1925). But this statement in Ekern was not necessary to the issue decided in that case, which was whether the content of a secretary of state. classic dicta. ballot question may Id. at 196-200. be delegated to the In other words, this is Unfortunately, the parties argued the case as if we are obligated to do something with this language. not. The premise is incorrect. Ekern may have persuasive But we are The tangential discussion in value, but it did not create a judicial test we are bound to apply forevermore. We should call it focus dicta and call it a day, leaving us to 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. ¶152 I am authorized to state that Justice REBECCA FRANK DALLET joins this concurrence with respect to ¶¶137-150. 9 No. ¶153 ANN WALSH BRADLEY, J. (dissenting). 2020AP2003.awb Ballot question challenges have been few and far between in the history of our state. Such a challenge reached this court in State ex rel. Ekern v. Zimmerman, 187 Wis. 180, 204 N.W. 803 (1925). There, the court established a test for our review of a ballot question challenge: "it must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment." Id. at 201 (emphasis added). ¶154 Yet rather than respecting the precedent of a nearly century-old unanimous opinion, the majority charts a new course not requested by either party. Instead of applying the test established in Ekern, the majority conjures its own test, never before stated, much less applied. ¶155 Specifically, the majority sets forth that "[a] ballot question could violate [the] constitutional requirement only in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment." created by the Majority op., ¶51. majority from whole In addition to being cloth, this new test is unnecessary for the simple reason that we already have a test from Ekern. ¶156 The majority arrives at its newly discovered test by tossing precedent to the wind and engaging in an unconvincing search for the "original meaning" of the state constitution's command that the legislature "submit" a proposed amendment to the people. As Justice Dallet's concurrence aptly explains, the 1 No. 2020AP2003.awb endeavor of divining the "original meaning" of a constitutional provision is largely a futile endeavor.1 ¶157 But even setting this aside, the majority's analysis rests on an infirm foundation. It erroneously dismisses the Ekern test, and instead creates and applies a newly-minted test, resulting in an overly permissive approach that risks giving the legislature carte blanche in crafting ballot questions. ¶158 I Applying would the follow Ekern our precedent framework, I set forth determine in instead Ekern. that the ballot question here failed to convey "every essential" of the amendment as is required. From the ballot question only, voters would have no idea that the proposed amendment diminishes the rights of criminal rights of crime defendants victims. in addition my view, In to the bolstering diminution the of a defendant's rights previously protected by law, constitutes an "essential" element of the amendment. Because the ballot question failed to accurately represent an essential element of the law to the voters who approved it, I respectfully dissent. I ¶159 At the April 7, 2020 election, voters were presented with a yes or no vote on an amendment to Article I, § 9m of the Wisconsin Constitution.2 This section of the constitution addresses the rights of victims of crime, and the amendment sought to expand the rights to which crime victims are entitled. 1 I join part I of Justice Dallet's concurrence. As the majority observes, this amendment is informally known as "Marsy's Law." Majority op., ¶10. 2 2 No. 2020AP2003.awb ¶160 When the amendment was presented to voters, the ballot question gave diminished. no hint that a defendant's rights were being It stated: Shall section 9m of article I of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court? Majority op., ¶10. ¶161 The Wisconsin Justice Initiative (WJI) brought this suit, asserting that the ballot question failed to satisfy the requirements set forth in the state constitution for distilling a constitutional amendment down to a ballot question that is then presented to the voters. Id., ¶11. At the outset, it should be emphasized that the substance of the amendment is not at issue, except to the extent that the court must determine whether the ballot question accurately represented the substance of the law to the voters who approved it. ¶162 In the course of tackling the question that now comes before us, the circuit court found several shortcomings with the above language. Among the shortcomings, it determined that "the single question presented to the voters was insufficient because 3 No. 2020AP2003.awb it did not reference the effect on the existing constitutional rights of the accused."3 ¶163 The circuit court stayed its ruling pending appeal, and the court of appeals certified WEC's appeal to this court. Now, the majority reverses the circuit court. ¶164 Purportedly grounding its determination in the constitution's "original meaning," the majority turns its back on Ekern, seeing only a requirement that "submit" the proposed amendment to the people. the legislature Majority op., ¶5. Applying such an understanding, the majority concludes that "the question was not fundamentally counterfactual such that voters were not afforded the opportunity to approve the actual amendment" and was thus permissible. Id. "absent the challenge on other grounds, The upshot is that amendment has been validly ratified and is part of the Wisconsin Constitution." Id., ¶7. The circuit court additionally determined that the question "did not accurately correspond to the language in the proposed amendments regarding the standard 'no less vigorous'" and that the amendment required two ballot questions rather than a single question "because the portion of the amendments that affected the rights of the accused did not sufficiently relate to the principal purpose behind the changes being driven by Marsy's Law to create rights for crime victims." 3 Because I determine the ballot question to fail the "every essential" test, I need not address these additional bases for the circuit court's decision. 4 No. 2020AP2003.awb II ¶165 I begin by setting forth the guiding principles in reviewing a ballot question. Subsequently, I address the majority's errors. ¶166 It is true that the legislature has a fair amount of discretion in constructing a ballot question. McConkey v. Van Hollen, 2010 WI 57, ¶40, 326 Wis. 2d 1, 783 N.W.2d 855. Indeed, this court has stated that the amount of discretion granted to the legislature is "considerable." Id. ¶167 According to the state constitution, "it shall be the duty of the legislature to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe." Wis. Const. art. XII, § 1. "Article XII, sec. 1 expressly delegates to the legislature the authority to determine the method for placing constitutional amendments before the people." proposed Milwaukee All. Against Racist and Political Repression v. Elections Bd., 106 Wis. 2d 593, 603, 317 N.W.2d 420 (1982). "The inquiry is 'whether the legislature in the formation of the question acted reasonably and within their constitutional grant of authority and discretion.'" McConkey, 326 Wis. 2d 1, ¶40 (quoting Milwaukee All., 106 Wis. 2d at 604). ¶168 The legislature's discretion is broad, but it is not unlimited. In accordance with the constitution ("in such manner and at such time as the legislature shall prescribe"), statutory constraints ballot on question the legislature's "shall include 5 authority a complete indicate statement that the of the No. 2020AP2003.awb referendum question upon which the voters shall be requested to vote." Wis. Stat. § 13.175.4 Wisconsin Stat. § 5.64(2)(am) provides further guidance on what must be included in a ballot question, requiring a "concise statement" and setting forth additional requirements: There shall be a separate ballot when any proposed constitutional amendment or any other measure or question is submitted to a vote of the people, except as authorized in s. 5.655. The ballot shall give a concise statement of each question in accordance with the act or resolution directing submission in the same form as prescribed by the commission under s. 7.08(1)(a). The question may not be worded in such a manner as to require a negative vote to approve a proposition or an affirmative vote to disapprove a proposition. Unless otherwise expressly provided, this ballot form shall be used at all elections when questions are submitted to a vote of the people. Wis. Stat. § 5.64(2)(am). ¶169 As stated, this court has also previously set forth a test for reviewing a ballot question challenge, providing that a ballot question violates the constitution when it "fail[s] to present the real question" or "present[s] an entirely different question." Ekern, 187 Wis. at 201. "In other words, 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." Id. (emphasis added). As the majority correctly observes, no argument was raised here regarding the legislature's compliance with its statutory obligations. See majority op., ¶3. 4 6 No. 2020AP2003.awb III A ¶170 The root of the majority's error lies in its hasty dismissal of the Ekern test. ¶171 This court in Ekern set forth what the parties refer to as the "every essential" test. It requires that a ballot question "must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment." Wis. at 201. As the court of appeals Ekern, 187 observes in its certification in the present case, this court has not expanded on what it really means for a ballot question to include "every essential" and this case presents an opportunity for the court to explain and apply this court's statement in Ekern. Just. Initiative v. Wis. Elections Comm'n, No. See Wis. 2020AP2003, unpublished certification, at 3 (Dec. 21, 2021). ¶172 But instead of taking that opportunity, the majority simply dispenses with Ekern. In the majority's view, the "every essential" at test "explanatory is no test statement."5 all, Majority but is op., instead just an ¶41. Such a Justice Hagedorn's concurrence goes a step further, asserting that the "every essential" test is mere dicta. Such an approach runs counter to the thrust of our recent jurisprudence. See Teigen v. Wis. Elections Comm'n, 2022 WI 64, ¶139 n.8, 403 Wis. 2d 607, 976 N.W.2d 519 (Rebecca Grassl Bradley, J., concurring) (explaining that "[o]ur court does not recognize the concept of dicta"). 5 This approach to dicta has been recognized to be simple and clear. It does not require the reader to dissect an opinion to determine, under whatever definition of dicta is embraced, what is and is not "necessary" or "germane" to the holding. See Justice Hagedorn's concurrence, ¶147. 7 No. 2020AP2003.awb characterization would be news to the court in State ex rel. Thomson v. Zimmerman, 264 Wis. 644, 659, 60 N.W.2d 416 (1953), who noted (although did not decide) a controversy over whether a ballot question amendment." who both "fairly comprised every essential of the And it most certainly is news to the parties here, argued their positions in terms of the "every essential" framework Ekern set forth. ¶173 By dismissing the "every essential" test of Ekern, the majority is able to avoid an exacting stare decisis analysis in order to determine if it should be overruled. See Johnson Controls, Inc. v. Emps. Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257. Instead of analyzing whether a "special justification," see Hinrichs v. DOW Chem. Co., 2020 WI 2, ¶¶67-68, 389 Wis. 2d 669, 937 N.W.2d 37, is present that would compel Ekern to be overruled, the majority relies on the convenient and outcome-determinative hypothesis that the relevant language is not actually the "test" the parties think it is. Such an approach also fosters consistency and predictability. "As the distinction between holding and dicta becomes increasingly vague, past precedents can be increasingly manipulated . . . [by] offer[ing] some facially plausible argument for disregarding a statement in a prior case." Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 1024 (2005). Therefore, "loose and unpredictable standards for determining whether a statement is dicta can undermine stare decisis and the principles of judicial restraint." Est. of Genrich v. OHIC Ins. Co., 2009 WI 67, ¶83, 318 Wis. 2d 553, 769 N.W.2d 481 (Ann Walsh Bradley, J., concurring in part and dissenting in part). 8 No. 2020AP2003.awb ¶174 Of note is that no party here asked us to overrule Ekern.6 See St. Augustine Sch. v. Taylor, 2021 WI 70, ¶37, 398 Wis. 2d 92, 961 N.W.2d 635 (observing that "no party asked us to overrule either" of two cases and declining to "overrule or revisit either case on our own initiative"). Indeed, WEC argued within the confines of Ekern that the ballot question at issue provided "every essential" of the amendment. provided no such, would I special justification maintain the Ekern for We have thus been overruling test. Doing Ekern. so not As only respects the precedent established by the courts who came before us, but in this case furthers the aims of democratic governance. Making sure that a ballot question includes "every essential" of an amendment ensures that the public is informed and can "vote intelligently." Ekern, 187 Wis. at 204. This is critical to maintaining a democracy. ¶175 The permissive blanche in result approach crafting of that the majority's risks ballot giving questions. error the The is an legislature potential overly carte for a ballot question to mislead the public leads me to believe that a more exacting standard is necessary. Ekern's "every essential" test provides more of a safeguard, enhancing the sacred right to vote, than does the majority's proffered new test. ¶176 When a ballot question fails to accurately describe "every essential" of a corresponding constitutional amendment, the people have not spoken on the true question. Rather than WEC confirmed at oral argument that it was not asking for this court to overturn "any of its prior decisions." 6 9 No. 2020AP2003.awb heralding that "the people have spoken" through their votes, instead the people are misled and democracy is undermined. Accordingly, I would maintain a test that provides more of a safeguard against such an outcome. The established Ekern test fits the bill. B ¶177 Applying the Ekern test to the ballot question at issue here, I determine that the ballot question fails to inform voters of "every essential" of the amendment. ¶178 It is true that our previous cases offer precious little guidance in what it means to inform voters of "every essential." Indeed, challenges to ballot questions are rare in our jurisprudence, and when they are challenged the attack is often leveled Wis. 2d 1, on ¶4 other grounds. (addressing a See, e.g., challenge under McConkey, the 326 "separate amendment rule"). ¶179 As arguments provide in us inquiry. observed terms with above, of some the both Ekern guideposts parties test, as to here and the framed their arguments contours WEC proposes the following understanding: their of the "this Court should hold that the 'every essential' standard requires that the Legislature 'fairly express' the 'clear and essential purpose' of the proposed amendment in the ballot question." support, standard. WEC points us to Minnesota law applying a For similar See Breza v. Kiffmeyer, 723 N.W.2d 633, 636 (Minn. 2006). 10 No. 2020AP2003.awb ¶180 In contrast, WJI cites language in Ekern itself as providing the operative standard: "It is clear and unambiguous, so as to enable voters to vote intelligently." at 204. Ekern, 187 Wis. "[T]he principal and essential criterion consists in a submission of a question or a form which has for its object and purpose 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." Id. at 201-02; Thomson, 264 Wis. at 659. ¶181 Under fails. either formulation, the ballot question here I begin my analysis with the essential fact, recognized by the circuit court, that the victim's rights amendment does more than victims. The majority fails to acknowledge this. Instead, it opines: "all of relate the just increase provisions of the rights Marsy's Law of crime to expanding and defining victim's rights and tend to effect and carry out this general purpose." ¶182 Several decrease the Majority op., ¶6. provisions rights of afforded the to amendment criminal do, in fact, defendants. For example, the amendment limits the rights of criminal defendants in the following ways: Where the previous version of § 9m stated that "[n]othing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law," the new version protects only the federal constitutional rights of the defendant, not the broader 11 protection of "any No. right . . . provided by law." a limitation of the 2020AP2003.awb The change defendant's allows for rights that are provided by statute, or by the Wisconsin Constitution, which may afford greater protections than its federal counterpart. See State v. Eason, 2001 WI 98, ¶60, 245 Wis. 2d 206, 629 N.W.2d 625. The amendment ability to obtain right deposition, other or accused." The or any impacts discovery, constitutional accused adversely "[t]o acting defendant's giving refuse discovery person the victims an request on the interview, made by behalf of the the Wis. Const. art. I, § 9m(2)(L). circuit court's ability to sequester a victim witness where "sequestration is necessary to a fair trial for the defendant" has been removed. ¶183 The new language that allows a victim to essentially refuse interviews and discovery requests would certainly seem to have a detrimental Similarly, circuit the court effect previous to on the rights constitutional sequester a victim of the language from the preserve the fair trial right of the defendant. accused. allowed courtroom a to This right is now gone. ¶184 Shouldn't the voters be informed that a constitutional amendment diminishes the rights of criminal defendants before voting on it? In light of these provisions, it is apparent that the amendment serves dual "purposes," both expanding the rights of victims and diminishing those of the accused. 12 No. 2020AP2003.awb ¶185 By any definition of the word, such a change is an "essential" aspect of an amendment. Accordingly, a voter would need to be informed of the change before voting "intelligently." Its lack of inclusion has the significant potential to mislead voters as to the consequences of their votes. ¶186 The majority tersely disposes of this argument within the span of a single paragraph. See majority op., ¶55. It does so with a one-two punch, first setting up a false dichotomy followed closely by a strawman. To explain, the majority directs the reader not to the question of "whether the amendment was explained, but whether it was 'submitted' to the people." Id. Yet according to the majority, if an amendment is not properly explained (i.e., it is "fundamentally counterfactual"), that does not constitute "submission." In other words, an examination of the "explanation" offered is not irrelevant to the "submission" question, but is instead part and parcel of such a determination. ¶187 Next, the majority advances that "[n]othing in the constitution requires that all components be presented in the ballot question." Id. This is a strawman. I do not argue, and I do not understand any of the parties to be arguing, that all components of an amendment be presented in a ballot question. Our precedent establishes, and I maintain, that only "every essential" is required. ¶188 When an amendment to the state constitution is placed before the voters for an up or down vote, it is imperative that the voters know what they are voting on. 13 It can be a difficult No. 2020AP2003.awb exercise to distill a complex and multifaceted constitutional amendment down to a simple description that will fit on the ballot, yet still informs voters of the true nature of the question. ¶189 Nevertheless, the ballot question that all voters are guaranteed to see. Vladimir Kogan, Choices? When Does Ballot is the only text See Craig M. Burnett & Language Influence Voter Evidence from a Survey Experiment, 32 Pol. Commc'n 109, 112 (2015). Those voters who do not research a proposed amendment beforehand will see the ballot question, and only the ballot question, prior to casting their vote. This gives the framing provided by the ballot question considerable power in shaping how voters think about and understand the question presented. ¶190 That ballot question language possesses this power to frame the issue in turn dictates that the language provide an accurate voters. judicial picture To of this review in the end, the measure we should ballot that is placed maintain question the context, before the vitality rather of than essentially surrendering our responsibility for judicial review to the legislature. informed. Democracy works best when voters are fully The majority opinion takes a step backward in this endeavor. ¶191 For the foregoing reasons, I respectfully dissent. 14 No. 1 2020AP2003.awb

Primary Holding

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