990 N.W.2d 122
Wis.2023Background
- The Legislature proposed and, in successive sessions, passed an amendment to Art. I, §9m ("Marsy’s Law") expanding and detailing crime victims' rights and changing related enforcement provisions; it was placed on the April 7, 2020 ballot and ratified by voters.
- The ballot summary presented to voters read in condensed form that the amendment would give victims additional rights, require victims' rights be protected with "equal force" to protections for the accused while leaving federal constitutional rights of the accused intact, and allow victims to enforce rights in court.
- Wisconsin Justice Initiative (WJI) sued the Wisconsin Elections Commission (WEC), asserting the ballot question violated Art. XII, §1 because it (1) failed to state “every essential” of the amendment and was misleading (particularly about the amendment’s definition of "victim" and effects on defendants’ rights and appellate jurisdiction), and (2) combined more than one amendment that should have been submitted separately.
- The circuit court granted declaratory relief for WJI; the case was appealed, certified to the Wisconsin Supreme Court, and the Supreme Court reversed the circuit court.
- The Supreme Court framed the threshold constitutional question as what it means for a legislature to "submit" an amendment under Art. XII, §1 and emphasized deference to the legislature’s discretion in prescribing the manner of submission, applying a narrow review limited to whether the ballot question was so "fundamentally counterfactual" that the people were not asked to approve the actual amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ballot question satisfied Art. XII, §1’s requirement that the legislature "submit" the proposed amendment to the people (i.e., must the ballot state "every essential" and not be misleading?) | WJI: The ballot omitted "every essential" of the amendment (e.g., new constitutional definition of "victim," limitations on defendants' rights, new supervisory-writ review) and thus misled voters so the amendment was not properly submitted. | WEC: Article XII, §1 gives the legislature broad discretion in how to submit amendments; the ballot need not include every detail; only rare, fundamentally counterfactual misstatements (Thomson) would invalidate a submission. | Court: Reverse — Article XII, §1 requires only that the amendment be "submitted"; judicial review is narrow. A ballot question invalidates submission only in rare cases when it is fundamentally counterfactual (i.e., asks voters to approve something materially different from the amendment). The Marsy’s Law summary was not fundamentally counterfactual. |
| Whether Marsy’s Law constituted "more than one amendment" requiring separate questions under Art. XII, §1 | WJI: The amendment made distinct changes (expanding victims' rights and altering defendants' protections) that amount to multiple amendments requiring separate votes. | WEC: All provisions relate to the single general purpose of expanding and protecting victims' rights and thus may be submitted as one amendment. | Court: Held for WEC — applying Hudd/McConkey: legislature may submit related propositions as one amendment if they share same subject and general purpose; Marsy’s Law’s provisions cohere around expanding/defining victims' rights. |
| Proper interpretive approach: role of original meaning and limits of judicial review | WJI: (implicit) courts should ensure ballot disclosures meet constitutional standards such that voters can decide intelligently. | WEC/majority: Apply original public meaning; courts must be cautious not to supplant legislature’s discretion; political-question concerns and deference constrain review. | Court: Adopt narrow, original- meaning-based standard focused on whether the submission was fundamentally counterfactual; defer to legislative manner-of-submission choices except in rare counterfactual cases. |
| Precedential force of the "every essential" language from Ekern | WJI: Relies on Ekern’s language that submission must "reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment." | WEC/Majority: Ekern’s commentary is dicta and not a rigid constitutional test; only Thomson’s extreme counterfactual invalidation is controlling. | Court: Treated Ekern’s "every essential" phrasing as explanatory dicta; declined to adopt an open-ended constitutional "every essential" requirement. |
Key Cases Cited
- State ex rel. Ekern v. Zimmerman, 187 Wis. 180 (1925) (discusses limits on legislative delegation of ballot wording and contains the oft-cited statement that the ballot should "have reference to every essential of the amendment")
- State ex rel. Thomson v. Zimmerman, 264 Wis. 644 (1953) (invalidated a proposed amendment where the ballot statement was fundamentally counterfactual and therefore voters were not asked to approve the real amendment)
- State ex rel. Hudd v. Timme, 54 Wis. 318 (1882) (interprets the "more than one amendment" clause to require separate submission only for propositions with different objects and distinct purposes)
- McConkey v. Van Hollen, 326 Wis. 2d 1 (2010) (rearticulates the test for when multiple propositions may be submitted as one amendment: they must relate to same subject and one general purpose)