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

Decision Date16 May 2023
Docket Number2020AP2003
PartiesWisconsin 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.
CourtWisconsin Supreme Court

ORAL ARGUMENT: September 6, 2022

APPEAL from a judgment and an order of the Circuit Court for Dane County (L.C. No. 2019CV3485), Frank D. Remington, Judge. Reversed.


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.

An amicus curiae brief was filed by Erika Jacobs Petty, Rachel E. Sattler, and Lotus Legal Clinic, Brookfield, for Lotus Legal Clinic.



¶1 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. If a majority vote yes, it becomes part of our constitution. 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. and several citizens (collectively "WJI") argue that Marsy's Law was adopted in violation of the process spelled out in the constitution.

¶2 When considering claims grounded in the Wisconsin Constitution, our obligation is to faithfully interpret and apply its original meaning. 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." Wis. Const. art. XII, § 1. And, "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." Id. ¶3 The legislature has prescribed further guidelines via statute regarding the form of the ballot for proposed constitutional amendments. Notably, Wis. Stat. § 5.64(2)(am) (2021-22)[1] requires ballot questions to contain a "concise statement of each question." However, WJI has not raised a challenge based upon this or any other statute. Therefore, this case concerns only the requirements of the 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.

¶5 Examining the original meaning of the Wisconsin Constitution, we discern no such requirement, and therefore we decline the invitation to fashion a new, exacting constitutional standard. The constitution itself requires only that the legislature "submit" the proposed amendment to the people. See Wis. Const. art. XII, § 1. 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 the people described the amendment in a fundamentally counterfactual way. 264 Wis. at 660. 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 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 We therefore hold that WJI's challenges to Marsy's Law fail. 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.


¶8 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 modified it as follows, with underlines representing additions to and strikethroughs 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 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, respect, courtesy, sensitivity, and fairness.
(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

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