Milwaukee Alliance Against Racist and Political Repression v. Elections Bd. of State of Wis.

• Decision Date: 26 March 1982
• Docket Number: No. 81-2193,81-2193
• Citation: 106 Wis.2d 593,317 N.W.2d 420
• Parties: MILWAUKEE ALLIANCE AGAINST RACIST AND POLITICAL REPRESSION, an unincorporated association, and David Randall Luce, Plaintiffs-Appellants, v. ELECTIONS BOARD OF the STATE OF WISCONSIN, et al., Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 420

317 N.W.2d 420

106 Wis.2d 593

MILWAUKEE ALLIANCE AGAINST RACIST AND POLITICAL REPRESSION,

an unincorporated association, and David Randall

Luce, Plaintiffs-Appellants, v. ELECTIONS BOARD OF the STATE OF WISCONSIN, et al.,

Defendants-Respondents.

No. 81-2193.

Supreme Court of Wisconsin.

Argued March 4, 1982.

Decided March 26, 1982.

Sandra Edhlund, Milwaukee (argued), for plaintiffs-appellants; Arthur Heitzer, Milwaukee, and Lester A. Pines, Madison, Wisconsin Civil Liberties Union Foundation, on brief.

Kevin J. Kennedy, State Elections Bd., Madison, for defendants-respondents.

Christopher C. Meyer, Madison, for amicus curiae The Assembly Committee on Organization.

Raymond M. Dall'Osto and Marvin Benton, Asst. State Public Defenders, Milwaukee, for Dist. Council 48, American Federation of State, County and Municipal Emp., AFL-CIO, Esperanza Unida, Nat. Ass'n for the Advancement of Colored People--Milwaukee Chapter, Milwaukee Urban League, Nat. Ass'n of Blacks in Crim. Justice--Milwaukee Chapter, Nat. Lawyers Guild--Milwaukee Chapter, State Public Defender of Wisconsin, Vote No on Bail Amendment Committee, Latin American Union for Civil Rights, Inc. and Casa Maria.

Donald K. Schott, Milwaukee, for amicus curiae The Milwaukee Young Lawyers Ass'n.

STEINMETZ, Justice.

There are two controlling issues to be considered in this case:

(1) Was 1981 Enrolled Joint Resolution 8 (1981 Assembly Joint Resolution 5) properly submitted to the electors for ratification as a single question pursuant to ARTICLE XII, SEC. 1 OF THE WISCONSIN CONSTITUTION¹?

(2) Did the submission of 1981 Enrolled Joint Resolution 8 (1981 Assembly Joint Resolution 5) comply with the statutory requirements for the amendment of the Wisconsin Constitution?

We accepted this appeal on certification from the court of appeals.

This is an appeal from an order of the Honorable P. Charles Jones, Dane county circuit court judge, granting the Elections Board of the State of Wisconsin (Elections Board) motion for summary judgment. The plaintiffs-appellants, Milwaukee Alliance Against Racist and Political Repression, et al. (Alliance) challenge the validity of an amendment to Article I, sec. 8 of the Wisconsin Constitution revising the right to bail. The challenge is grounded on the assertion that more than one amendment to the state constitution was submitted to the electors for ratification in the form of a single question contrary to Article XII, sec. 1 of the Wisconsin Constitution. The amendment is also challenged on the basis that the question presented to the electors for ratification as part of the submission did not adequately and totally inform them of the nature of the constitutional amendment.

In addition to the briefs filed by the Alliance and Elections Board, an amicus curiae brief was filed on behalf of:

District Council 48, American Federation of State, County and Municipal Employees, AFL-CIO.

Esperanza Unida

National Association for the Advancement of Colored People--Milwaukee Chapter (NAACP)

Milwaukee Urban League

National Association of Blacks in Criminal Justice--Milwaukee and Madison Chapters

National Lawyers Guild--Milwaukee and Madison Chapters.

David Niblack as the duly appointed State Public Defender in Wisconsin.

Vote No on Bail Amendment Committee

Latin American Union for Civil Rights, Inc. (LAUCR)

Casa Maria

In addition, an amicus curiae brief was filed by each of the following:

The Assembly Committee on Organization.

The Milwaukee Young Lawyer's Association.

The history of this lawsuit is as follows. It was commenced by the filing of a summons and complaint on March 3, 1981. The Alliance, at that time, also filed an ex parte motion for a restraining order and a motion for a temporary injunction to prevent the submission of the constitutional amendment to the electors for ratification. The ex parte motion was denied by Judge Jones and a hearing was held on March 16, 1981, on the Alliance's motion for temporary relief. On March 23, 1981, Judge Jones denied the Alliance's request for temporary relief.

On April 10, 1981, the Alliance filed an amended summons and complaint and a renewed motion for temporary relief to prevent the Elections Board from taking any further official action with respect to the amendment. A hearing was held on the Alliance's motion on April 30, 1981. Judge Jones issued a temporary injunction on May 13, 1981, enjoining the Elections Board from determining, recording and certifying the results of the vote in the April 7, 1981, spring election, on ratification of the amendment.

On May 1, 1981, the Elections Board, by its attorney, the attorney general's office, filed a motion to dismiss the Alliance's complaint on the grounds that it failed to state a claim on which relief could be granted. On May 14, 1981, Attorney Kevin J. Kennedy, was appointed special counsel to represent the Elections Board, pursuant to sec. 14.11(2), Stats. ²

On June 24, 1981, the Elections Board filed a petition with this court requesting permission to commence an original action to resolve the issues or alternatively for the Supreme Court to exercise its supervisory jurisdiction. On June 26, 1981, this court ordered the Alliance to file a response which was done on July 3, 1981. The question of original jurisdiction was argued before this court on July 6, 1981. On July 7, 1981, this court issued an order denying the petition. In the exercise of this court's supervisory power, the trial court was directed to give this case priority over all other matters and to expeditiously hear and determine the matter.

In the trial court, the Elections Board filed its answer to the amended complaint. A briefing schedule was set and the parties filed a stipulation acknowledging exhibits and a statement of uncontested facts. Amici curiae briefs were also filed in the trial court.

On October 5, 1981, the matter was argued before Judge Jones, and he issued a memorandum decision on October 14, 1981, vacating the Alliance's temporary relief, granting the Election Board's motion for summary judgment and directing that the results of the election may be certified.

Judge Jones' decision held that the submission of the amendment as a single ballot question was not unconstitutional and that all changes contained in the amendment were designed to carry out a single purpose.

There were earlier legislative attempts to enact similar measures; however, the legislative history of the amendment in its present form began on June 26, 1980, when the Committee on Organization introduced June, 1980, SS. A.J.R. 9, which was adopted by the Assembly and concurred in by the Senate, all on the same day. This constituted the first legislative consideration of the revision of the constitutional right to bail presently at issue. The joint resolution was published by the Secretary of State on August 5, 1980, September 2, 1980, and October 7, 1980, pursuant to Article XII, sec. 1 of the Wisconsin Constitution directing publication for three months preceding the election of the next legislature.

On January 8, 1981, 1981 A.J.R. 5, was introduced. A companion joint resolution was introduced in the Senate as 1981 S.J.R. 3. Public hearings were held on both measures. The Assembly passed the joint resolution on February 5, 1981. On February 17, 1981, the Senate concurred in the matter, and it was published on February 23, 1981, by the Secretary of State as 1981 E.J.R. 8. This constituted the second legislative consideration of the revision of the constitutional right to bail.

On March 3, 1981, the state Elections Board published a Type C notice which contains the full text of the constitutional amendment and the ballot question to be submitted to the voters along with an analysis prepared by the state Attorney General explaining the effect of a "yes" or "no" vote. Once in each of the two weeks immediately preceding the election, every county clerk in the State of Wisconsin also published this same Type C notice.

On April 7, 1981, the voters overwhelmingly approved the constitutional amendment revising the right to bail to conditional release.

The text of 1981 J.R. 8 reads, in pertinent part, as follows:

"To amend section 8 of article I of the constitution, relating to revising the right to bail and authorizing the legislature to permit circuit courts to deny release on bail for a limited period to certain accused persons (2nd consideration).

"Whereas, the 1979 legislature in its June 1980 special session proposed an amendment to the constitution by Assembly Joint Resolution 9 of the June 1980 Special Session (Enrolled Joint Resolution 76) and agreed to it by a majority of the members elected to each of the 2 houses, which amendment reads as follows:

"SECTION 1. Section 8 of article I of the constitution is amended to read:

"[Article 1] Section 8. (1) No person may be held to answer for a criminal offense without due process of law, and no person for the same offense may be put twice in jeopardy of punishment, nor may be compelled in any criminal case to be a witness against himself or herself.

"(2) All persons , before conviction, shall be eligible for release under reasonable conditions designed to assure their appearance in court, protect members of the community from serious bodily harm or prevent the intimidation of witnesses. Monetary conditions of release may be imposed at or after the initial appearance only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court. The legislature may authorize, by law, courts to revoke a person's release for a violation of a condition of release.

"(3) The legislature may by law authorize, but may not require, circuit courts to deny release for a period not to exceed 10 days prior to the hearing required under this subsection to a person who is accused of committing a murder punishable by life imprisonment or a sexual assault...