Mcconkey v. Hollen

• Decision Date: 30 June 2010
• Docket Number: No. 2008AP1868.,2008AP1868.
• Citation: 783 N.W.2d 855,2010 WI 57
• Parties: William C. McCONKEY, Plaintiff-Appellant-Cross-Respondent,v.J.B. VAN HOLLEN, in his role as Attorney General of Wisconsin, Defendant-Respondent-Cross-Appellant.
• Court: Wisconsin Supreme Court

783 N.W.2d 855

2010 WI 57

William C. McCONKEY, Plaintiff-Appellant-Cross-Respondent,v.J.B. VAN HOLLEN, in his role as Attorney General of Wisconsin, Defendant-Respondent-Cross-Appellant.

No. 2008AP1868.

Supreme Court of Wisconsin.

Argued Nov. 3, 2009.

Decided June 30, 2010.

COPYRIGHT MATERIAL OMITTED

For the plaintiff-appellant-cross-respondent there were briefs by Lester A. Pines, Tamara B. Packard, and Cullen Weston Pines & Bach LLP, Madison, and Edward S. Marion and Edward S. Marion Attorney-At-Law LLC, Madison, and oral argument by Lester A. Pines.

For the defendant-respondent-cross-appellant the cause was argued by Lewis W. Beilin, assistant attorney general, with whom on the briefs was Raymond P. Taffora, deputy attorney general, and J.B. Van Hollen, attorney general.

An amicus curiae brief was filed by Brian W. Raum, James A. Campbell, and Alliance Defense Fund, Scottsdale, Ariz., and Samuel R. Taylor, Jr. and Samuel R. Taylor Jr. LLC, Kenosha, on behalf of the Wisconsin Family Council.

An amicus curiae brief was filed by William M. Conley, Callie M. Bell, Katherine C. Smith, and Foley & Lardner LLP, Madison, and Laurence J. Dupuis and ACLU of Wisconsin Foundation, Inc., Milwaukee, on behalf of Lambda Legal Defense and Education Fund, Inc., Fair Wisconsin, and ACLU of Wisconsin.

An amicus curiae brief was filed by Matthew W. O'Neill, Sara Elizabeth Dill, and Friebert, Finerty & St. John, S.C., Milwaukee, on behalf of League of Women Voters of Wisconsin Education Fund.

An amicus curiae brief was filed by Michael D. Dean, Michael D. Dean, LLC, and First Freedoms Foundation, Inc., Waukesha, and Richard M. Esenberg, on behalf of Community Leaders Dedicated to Children Raised by Married Mothers and Fathers.

¶ 1 MICHAEL J. GABLEMAN, J.

In November 2006, the people of Wisconsin approved the adoption of the following amendment to the Wisconsin Constitution:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.¹

¶ 2 In July 2007, William McConkey, a voter and taxpayer, filed suit alleging, among other things, that this amendment (the “marriage amendment”) was submitted to the people in violation of the constitution's requirement that voters must be allowed to vote separately on separate amendments (the “separate amendment rule”). In other words, McConkey claimed that the two sentences of the marriage amendment constituted two amendments, not one, and that because voters were not able to vote for or against each sentence, the marriage amendment was not validly adopted. The Attorney General countered that McConkey did not have standing to bring this claim because he suffered no actual injury, and maintained that the amendment was adopted in conformity with the separate amendment rule.

¶ 3 The Dane County Circuit Court, Richard G. Niess, Judge, held that McConkey did have standing to bring suit because, assuming his claims are true, his rights as a voter were violated. Regarding the substance of his claim, the circuit court held that the two sentences of the amendment related to the same subject and furthered the same general purpose. Therefore, the two sentences constituted only one amendment. The court of appeals certified the case to this court, and we accepted review.

¶ 4 The two issues before us are:

(1) Does McConkey have standing to challenge the marriage amendment?

(2) Was the marriage amendment adopted in violation of the Wisconsin Constitution's separate amendment rule?

¶ 5 Though the precise nature of McConkey's alleged injury is difficult to define, we conclude that the policy considerations underlying our standing doctrine support addressing the merits of McConkey's claim, which we therefore choose to do.

¶ 6 We hold that Article XIII, Section 13 of the Wisconsin Constitution-the marriage amendment-was adopted in conformity with the separate amendment rule in Article XII, Section 1 of the Wisconsin Constitution, which mandates that voters must be able to vote separately on separate amendments. Both sentences of the marriage amendment relate to marriage and tend to effect or carry out the same general purpose of preserving the legal status of marriage in Wisconsin as between only one man and one woman.

I. BACKGROUND

¶ 7 During both the 2003 and 2005 sessions, the Wisconsin State Assembly and Senate adopted a joint resolution to amend the Wisconsin Constitution. Though the 2003 and 2005 versions contained minor procedural variations, the text of the resolution itself was identical. Both versions of the resolution contained what the parties have referred to as the title: “ To create section 13 of article XIII of the constitution; relating to: providing that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.” The substance of the resolution contained two sections. Section 1 stated the text of the proposed marriage amendment. Section 2 of the resolution addressed the numbering of the new proposed amendment. ²

¶ 8 Because the joint resolution was passed by two successive legislatures, the amendment was submitted to the people for ratification. ³ Wisconsin voters were asked the following question:

Marriage. Shall section 13 of article XIII of the constitution be created to provide that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state and that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state?

On November 7, 2006, Wisconsin voters approved this amendment by a vote of 59 percent to 41 percent.

¶ 9 William McConkey is a registered voter and taxpayer who opposed both propositions contained in the marriage amendment and voted against it. He filed suit on July 27, 2007, challenging the marriage amendment on the grounds that it violated the due process and equal protection guarantees in the Wisconsin and United States Constitutions, and on the grounds that it was adopted in violation of the separate amendment rule in Article XII, Section 1 of the Wisconsin Constitution. The Attorney General countered that McConkey suffered no actual injury and therefore did not have standing to bring any of his claims. The Attorney General further argued that neither the substance of the amendment nor the process by which it was adopted violated the state or federal constitutions.

¶ 10 On a motion to dismiss by the Attorney General, the Dane County Circuit Court, Richard G Niess, Judge, held that McConkey did not have standing to bring his due process and equal protection claims, but did have standing as a voter to challenge the process by which the amendment was adopted. If an amendment were invalidly submitted to voters, the circuit court reasoned, all voters were injured no matter how an individual would have voted had the different propositions been submitted separately. On the merits of McConkey's claim, the court held that the marriage amendment satisfied the requirements of the separate amendment rule, explaining that both propositions related to the subject matter of marriage and were designed to accomplish the same purpose: “the preservation and protection of the unique and historical status of traditional marriage.”

¶ 11 McConkey appealed, challenging the circuit court's holding on the merits of his separate amendment rule challenge.⁴ The Attorney General cross-appealed, challenging the circuit court's grant of standing. The court of appeals certified both questions to this court, and this court accepted certification.

II. STANDARD OF REVIEW

¶ 12 Whether a party has proper standing to bring suit is a question of law that we review de novo. Krier v. Vilione, 2009 WI 45, ¶ 14, 317 Wis.2d 288, 766 N.W.2d 517. Whether an amendment to the Wisconsin Constitution was adopted in conformity with the proper procedures is also a question of law that we review de novo. Milwaukee Alliance v. Elections Bd., 106 Wis.2d 593, 604, 317 N.W.2d 420 (1982).

III. DISCUSSION

¶ 13 Before we can address the merits of McConkey's challenge, we must first confirm whether McConkey's suit is properly before us-that is, whether McConkey has standing to bring his claim. Part A examines this question, concluding that the policies undergirding our standing doctrine support addressing the merits of McConkey's challenge. In Part B, we address whether the marriage amendment violates the constitution's separate amendment rule, concluding that it does not.

A. Does McConkey Have Standing?

¶ 14 The Attorney General argues that McConkey does not have standing to challenge the marriage amendment. He asserts that because McConkey would have voted “no” on both propositions, which McConkey concedes is true, he suffered no actual injury to a legally protectable interest.⁵ McConkey, on the other hand, frames this case as a violation of his basic voting and speech rights.

¶ 15 As a general matter, a litigant advancing a constitutional claim must have suffered an actual injury to a legally protected interest. See State ex rel. First Nat'l Bank v. M & I Peoples Bank, 95 Wis.2d 303, 308, 290 N.W.2d 321 (1980). The law of standing in Wisconsin is construed liberally, and “even an injury to a trifling interest” may suffice. Fox v. DHSS, 112 Wis.2d 514, 524, 334 N.W.2d 532 (1983). Unlike in federal courts, which can only hear “cases” or “ controversies,” ⁶ standing in Wisconsin is not a matter of jurisdiction, but of sound judicial policy.⁷ Zehetner v. Chrysler Fin. Co., 2004 WI App 80, ¶ 12, 272 Wis.2d 628, 679 N.W.2d 919.

¶ 16 Standing requirements in Wisconsin are aimed at ensuring that the issues and arguments presented will be carefully developed and zealously argued, as well as informing the court of the consequences of its decision. See Moedern v. McGinnis, 70 Wis.2d 1056, 1064, ...