John Doe 1 v. Madison Metro School District ( 2022 )

2022 WI 65SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP1032
COMPLETE TITLE: John Doe 1, Jane Doe 1, Jane Doe 3 and Jane Doe
4,
Plaintiffs-Appellants-Petitioners,
John Doe 5 and Jane Doe 5,
Plaintiffs-Appellants,
John Doe 6, Jane Doe 6, John Doe 8 and Jane Doe
8,
Plaintiffs,
v.
Madison Metropolitan School District,
Defendant-Respondent,
Gender Equity Association of James Madison
Memorial High School, Gender Sexuality Alliance
of Madison West High School and Gender Sexuality
Alliance of Robert M. LaFollette High School,
Intervenors-Defendants-Respondents.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 399 Wis. 2d, 963 N.W.2d
PDC No:2021 WI App 60 - Published
OPINION FILED: July 8, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: May 24, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Frank D. Remington
JUSTICES:
HAGEDORN, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined.
ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER,
C.J., and REBECCA GRASSL BRADLEY, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-appellants-petitioners, there were
briefs filed by Richard M. Esenberg, Luke N. Berg, Anthony F.
LoCoco, Roger G. Brooks and Wisconsin Institute for Law &
Liberty, Milwaukee, and Alliance Defending Freedom, Scottsdale.
There was an oral argument by Luke N. Berg.
For the defendant-respondent and interevenors-defendants-
respondents, there was a brief filed by Emily M. Feinstein, Adam
R. Prinsen, Sarah A. Zylstra, Sarah J. Horner, and Quarles &
Brady LLP, Madison, and Boardman & Clark LLP, Madison. There was
an oral argument for the defendant-respondent by Sarah A.
Zylstra and an oral argument for the intervenors-defendants-
respondents by Adam R. Prinsen
An amicus curiae brief was filed by Frederick W. Claybrook,
Jr., Matthew M. Fernholz, and Claybrook LLC, Washington, D.C.,
and Cramer, Multhauf & Hammes, LLP, Waukesha for Wisconsin
Family Action, Illinois Family Institute, Minnesota Family
Council, Delaware Family Policy Council, Nebraska Family
Alliance, Hawaii Family Forum, The Family Foundation, Minnesota-
Wisconsin Baptist Convention, Ethics and Religious Liberty
Commission of the Southern Baptist Convention, Concerned Women
for America, Ethics & Public Policy Center, National Legal
Foundation, and Pacific Justice Institute.
An amicus curiae brief was filed by Tamara B. Packard and
Pines Bach LLP, Madison, for Madison Teachers Inc.
An amicus curiae brief was filed by Eric G. Pearson, Morgan
J. Tilleman, Megan C. Isom, and Foley & Lardner LLP, Milwaukee
for the American Academy of Child and Adolescent Psychiatry and
the Wisconsin Council of Child and Adolescent Psychiatry.
An amicus curiae brief was filed by Victoria L. Davis
Dávila, Robert Theine Pledl, Shannon Minter, Asaf Orr, and Davis
2
& Pledl, Milwaukee, and National Center for Lesbian Rights, San
Francisco, for Professors of Psychology & Human Development.
An amicus curiae brief was filed by Daniel R. Suhr and
Liberty Justice Center, Chicago, for the Liberty Justice Center.
3
2022 WI 65NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP1032
(L.C. No. 2020CV454)
STATE OF WISCONSIN : IN SUPREME COURT
John Doe 1, Jane Doe 1, Jane Doe 3 and Jane Doe
4,
Plaintiffs-Appellants-Petitioners,
John Doe 5 and Jane Doe 5,
Plaintiffs-Appellants,
John Doe 6, Jane Doe 6, John Doe 8 and Jane Doe
8,
FILED
Plaintiffs,
JUL 8, 2022
v.
Sheila T. Reiff
Madison Metropolitan School District, Clerk of Supreme Court
Defendant-Respondent,
Gender Equity Association of James Madison
Memorial High School, Gender Sexuality Alliance
of Madison West High School and Gender
Sexuality Alliance of Robert M. LaFollette High
School,
Intervenors-Defendants-Respondents.
HAGEDORN, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined.
ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER,
C.J., and REBECCA GRASSL BRADLEY, J., joined.
No. 2020AP1032
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 BRIAN HAGEDORN, J. This case involves a
constitutional challenge by parents to a school district policy.
The substantive issues, however, remain pending before the
circuit court and are not properly before us. This is an appeal
contesting the circuit court's decision to seal and protect the
parents' identities from the public and the school district, but
not from the attorneys defending the school district's policy.
Rather than follow our current law governing confidential
litigation, the parents ask us to modify our approach in
Wisconsin and adopt new standards modeled after federal law. We
decline to do so. Applying Wisconsin law, we determine the
circuit court did not erroneously exercise its discretion by
requiring disclosure of the parents' identities to opposing
attorneys, while allowing the parents to keep their names sealed
and confidential as to the public and the district.
¶2 The parents further ask this court to issue an
injunction against the underlying policy. But a preliminary
injunction motion on this very issue remains pending in the
circuit court, has not been decided, and therefore has not been
appealed. We are not aware of any procedure by which we could
properly address that motion in this court absent an
extraordinary exercise of our superintending authority, which
the petitioners did not request. What remains is an appeal of
the circuit court's decision to grant in part and deny in part a
temporary injunction pending appeal, a decision the court of
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No. 2020AP1032
appeals affirmed. However, our decision today ends the appeal
of the circuit court's decision regarding parent
confidentiality. Therefore, any decision addressing the
temporary injunction pending appeal is now moot. Accordingly,
we do not opine on the merits of the parents' request for
temporary injunctive relief. We affirm the court of appeals'
decision and remand to the circuit court for further
adjudication of the parents' claims.
I. BACKGROUND
¶3 In April 2018, the Madison Metropolitan School
District (the District) adopted a document entitled, "Guidance &
Policies to Support Transgender, Non-binary & Gender Expansive
Students" (the Policy). The Policy contains multiple provisions
that animate the parents' claims in this case. We highlight
several for context.
 "Students will be called by their affirmed name
and pronouns regardless of parent/guardian
permission to change their name and gender in
[District] systems."
 "All [District] staff will refer to students by
their affirmed names and pronouns. Staff will
also maintain confidentiality and ensure privacy.
Refusal to respect a student's name and pronouns
is a violation of the [District] Non-
discrimination policy."
 "School staff shall not disclose any information
that may reveal a student's gender identity to
others, including parents or guardians and other
school staff, unless legally required to do so or
unless the student has authorized such
disclosure."
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No. 2020AP1032
 "All staff correspondence and communication to
families in regard to students shall reflect the
name and gender documented in [the District
system] unless the student has specifically given
permission to do otherwise. (This might involve
using the student's affirmed name and pronouns in
the school setting and their legal name and
pronouns with family)."
 "To avoid harmful misgendering or misnaming,
teachers should ensure that all information
shared with substitute teachers is updated and
accurate. For example, make sure attendance
rosters, shared include accurate student names
and pronouns, keeping in mind that not all
students have their affirmed names and genders
updated in [the District system]."
¶4 In February 2020, a group of parents sued the District
alleging the Policy violated their right to parent their
children, citing Article I, Section 1 of the Wisconsin
Constitution,1 and their right to exercise their religious
beliefs under Article I, Section 18 of the Wisconsin
Constitution.2 Contemporaneous with filing their complaint, the
1 Article I, Section 1 of the Wisconsin Constitution
provides: "All people are born equally free and independent,
and have certain inherent rights; among these are life, liberty
and the pursuit of happiness; to secure these rights,
governments are instituted, deriving their just powers from the
consent of the governed."
2 Article I, Section 18 of the Wisconsin Constitution
states:
The right of every person to worship Almighty God
according to the dictates of conscience shall never be
infringed; nor shall any person be compelled to
attend, erect or support any place of worship, or to
maintain any ministry, without consent; nor shall any
control of, or interference with, the rights of
conscience be permitted, or any preference be given by
law to any religious establishments or modes of
worship; nor shall any money be drawn from the
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No. 2020AP1032
parents moved to proceed using pseudonyms. The parents also
sought a preliminary injunction pursuant to Wis. Stat. § 813.02(2019-20).3 They asked the circuit court4 to prohibit the
District from:
(1) enabling children to socially transition to a
different gender identity at school by selecting a new
"affirmed named and pronouns," without parental notice
or consent;
(2) preventing teachers and other staff from
communicating with parents that their child may be
dealing with gender dysphoria, or that their child has
or wants to change gender identity, without the
child's consent; and
(3) deceiving parents by using different names and
pronouns around parents than at school.
¶5 The District moved to dismiss the complaint and asked
the circuit court to postpone the hearing on the injunction
until the court decided the motion to dismiss. The circuit
court agreed. After hearing argument, the circuit court denied
the motion to dismiss.5
treasury for the benefit of religious societies, or
religious or theological seminaries.
3 All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
4 The Honorable Frank D. Remington of the Dane County
Circuit Court presided.
5 The circuit court also granted intervention to the Gender
Equity Association of James Madison Memorial High School, the
Gender Sexuality Alliance of Madison West High School, and the
Gender Sexuality Alliance of Robert M. La Follette High School.
We refer to the District and the Intervenors-Defendants
collectively as the District.
5
No. 2020AP1032
¶6 The circuit court also granted in part the parents'
motion to proceed anonymously. The court agreed with the risks
presented by the parents and found "sufficient need to keep the
Plaintiffs' names sealed and confidential from the public." The
court concluded the parents made a "demonstrable factual showing
that . . . would their names be disclosed, they would likely be
subject to threats and intimidation, which would be wholly
inappropriate and frustrate the orderly functioning of the court
case." It held, however, that the parents "must disclose their
identities to the Court and attorneys for the litigants." The
circuit court ordered the parents to file, under seal, an
amended complaint listing the names and addresses of the parents
accessible to the court and opposing attorneys. And it
instructed the parents to circulate a draft protective order,
the terms of which were to be negotiated. The parents initially
circulated a draft protective order which would limit the
disclosure of their names to attorneys of record, excluding
their staff and other attorneys at their firms. However, the
circuit court concluded this was too narrow and directed the
preparation of a protective order that other attorneys at the
respective law firms and their staff would sign as well.
¶7 The parents sought an interlocutory appeal challenging
the order to disclose their identities to the attorneys and
moved to stay the order to file an amended complaint under seal.
The circuit court granted the stay, and the court of appeals
granted the petition for interlocutory appeal.
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No. 2020AP1032
¶8 While the petition for interlocutory appeal was
pending before the court of appeals, the parents sought an
injunction pending appeal with the circuit court under Wis.
Stat. § 808.07(2). This motion asked for the same relief
requested in the parents' original preliminary injunction
motion. Two months after the court of appeals granted
interlocutory appeal, the circuit court granted in part and
denied in part the parents' motion for an injunction pending
appeal. The circuit court enjoined the District
from applying or enforcing any policy, guideline, or
practice reflected or recommended in its document
entitled "Guidance & Policies to Support Transgender,
Non-binary & Gender-Expansive Students" in any manner
that allows or requires District staff to conceal
information or to answer untruthfully in response to
any question that parents ask about their child at
school, including information about the name and
pronouns being used to address their child at school.
The circuit court added that its "injunction does not create an
affirmative obligation to disclose information if that
obligation does not already exist at law and shall not require
or allow District staff to disclose any information that they
are otherwise prohibited from disclosing to parents by any state
or federal law or regulation." The circuit court denied the
other injunctive relief requested by the parents. It reasoned
that the parents had not demonstrated they were likely to
succeed on appeal and, without knowing any specifics about the
parents bringing the claim, the parents were unable to
demonstrate they would suffer irreparable harm.
7
No. 2020AP1032
¶9 Having not received all they hoped for from the
circuit court, the parents turned to the court of appeals. They
moved for injunctive relief under Wis. Stat. § 808.07(2)(a) and
cited Wis. Stat. § (Rule) 809.12, the ordinary authority for
appealing the denial of a motion for relief pending appeal. In
the alternative, they also sought injunctive relief under the
general temporary injunction statute, Wis. Stat. § 813.02, along
with Wis. Stat. § (Rule) 809.14, which specifies how to move an
appellate court for relief.
¶10 The court of appeals denied the parents' motion for
injunctive relief pending appeal, concluding the circuit court
did not erroneously exercise its discretion. The parents then
sought relief from this court on their motion for relief pending
appeal while the court of appeals was still considering the
merits of the confidentiality question. We denied the petition
for review. Several months later, the court of appeals issued a
decision on the confidentiality issue affirming the circuit
court. Doe 1 v. Madison Metro. Sch. Dist., 2021 WI App 60, 399
Wis. 2d 102, 963 N.W.2d 832. The parents then turned to this
court again, and we granted their petition for review.
II. CONFIDENTIALITY
¶11 The main question before us is a narrow one: Did the
circuit court err in ordering the parents to file a sealed
complaint with their names and addresses which would be viewed
by the court and attorneys alone? The parents' argument rests
largely on its request that we reexamine, overrule, and
8
No. 2020AP1032
reformulate the law on anonymous litigation in Wisconsin to more
closely resemble their description of the approach in federal
courts. We decline to do so. We begin with the relevant law as
it now exists.
A. Legal Standards
¶12 The ordinary rule in Wisconsin and everywhere is that
those availing themselves of the legal system should do so
openly. See, e.g., State ex rel. La Crosse Trib. v. Cir. Ct.
for La Crosse Cnty., 115 Wis. 2d 220, 241-42, 340 N.W.2d 460(1983); Doe v. Village of Deerfield, 819 F.3d 372, 376-77 (7th
Cir. 2016); 67A C.J.S. Parties §§ 173-74 (2022). While we
protect certain vulnerable legal participants, such as children
and crime victims, the business of courts is public business,
and as such is presumed to remain open and available to the
public. See Wis. Stat. § 757.14 ("The sittings of every court
shall be public and every citizen may freely attend the
same . . . except if otherwise expressly provided by law.");
Wis. Stat. § (Rule) 809.81(8) ("Every notice of appeal or other
document that is filed in the court and that is required by law
to be confidential shall refer to individuals only by one or
more initials or other appropriate pseudonym or designation.");
Wis. Stat. § (Rule) 809.86 (directing that, in certain types of
cases, the identity of crime victims should not be disclosed).
Openness is the rule; confidentiality is the exception.
¶13 This principle plays out from the commencement of a
lawsuit. Litigation in Wisconsin begins with the filing of a
9
No. 2020AP1032
summons and complaint, which must contain "the names and
addresses of the parties to the action, plaintiff and
defendant." Wis. Stat. § 801.09(1). These documents are filed
with the clerk of the circuit court, who is required to "open to
the examination of any person all books and papers required to
be kept in his or her office and permit any person so examining
to take notes and copies of such books, records, papers, or
minutes therefrom." Wis. Stat. § 59.20(3)(a). We have
described this as "a legislative declaration granting those
persons who properly come under its umbrella 'an absolute right
of inspection subject only to reasonable administrative
regulations.'" State ex rel. Bilder v. Township of Delavan, 112
Wis. 2d 539, 553, 334 N.W.2d 252 (1983) (quoting State ex rel.
J. Co. v. Cnty. Ct. for Racine Cnty., 43 Wis. 2d 297, 308, 168
N.W.2d 836 (1969)) (interpreting Wis. Stat. § 59.14(1) (1979-
80), predecessor to § 59.20(3)(a)). This reflects "a basic
tenet of the democratic system that the people have the right to
know about operations of their government, including the
judicial branch." Id. at 553.
¶14 In Bilder, we identified three exceptions to the right
codified in Wis. Stat. § 59.20(3)(a). First, documents may be
closed to the public when another statute so requires or
authorizes. Id. at 554. Second, the same applies if disclosure
would infringe on a constitutional right. Id. at 555. And
third, "when the administration of justice requires it," a court
may employ its inherent power under the constitution "to
preserve and protect the exercise of its judicial function of
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No. 2020AP1032
presiding over the conduct of judicial proceedings." Id. at
556.
¶15 With respect to the court's inherent power, many of
the cases, including Bilder, focus on the public records nature
of requests for confidentiality. See WISC-TV—Channel 3/Madison
v. Mewis, 151 Wis. 2d 122, 442 N.W.2d 578 (Ct. App. 1989); Krier
v. EOG Env't, Inc., 2005 WI App 256, 288 Wis. 2d 623, 707
N.W.2d 915. But the court's ability "to preserve and protect
the exercise of its judicial function of presiding over the
conduct of judicial proceedings" is not limited to public
records requests. Bilder, 112 Wis. 2d at 556. Instead, the
inherent authority of courts includes those powers "necessary
for the courts to function as courts." State v. Schwind, 2019
WI 48, ¶12, 386 Wis. 2d 526, 926 N.W.2d 742. We see no reason
why the inherent authority of courts would not also reach other
interests implicated by the openness of judicial proceedings,
including the potential for threats and harassment alleged in
this case. These interests go to the core of the judiciary's
duty to preside over and conduct judicial proceedings, as the
circuit court recognized.
¶16 Seven years ago, this court adopted by rule a set of
procedures governing the redaction and sealing of documents.
See Wis. Stat. § 801.21; S. Ct. Order 14-04, 2015 WI 89 (issued
Aug. 27, 2015, eff. July 1, 2016). While not enacted in the
same way as other laws, the legislature has prescribed that our
rules function as statutes. See Rao v. WMA Sec., Inc., 2008
WI 73, ¶35, 310 Wis. 2d 623, 752 N.W.2d 220. The underlying
11
No. 2020AP1032
assumption of § 801.21 is that court filings are public. The
procedures we adopted provide a mechanism for protecting certain
documents or information in these otherwise public records.
¶17 The basic procedure we created was to require a
"party seeking to protect a court record" to "file a motion to
seal part or all of a document or to redact specific information
in a document."6 Wis. Stat. § 801.21(2). Sealing and redacting
are different. "'Seal' means to order that a portion of a
document or an entire document shall not be accessible to the
public." § 801.21(1)(b). "'Redact' means to obscure individual
items of information within an otherwise publicly accessible
document." § 801.21(1)(a). A party filing a motion under
§ 801.21 can file the material under temporary seal until a
court rules on the motion, and the movant is required to
"specify the authority for asserting that the information should
be restricted from public access." § 801.21(2).
¶18 The circuit court then determines "whether there are
sufficient grounds to restrict public access according to
applicable constitutional, statutory, and common law." Wis.
Stat. § 801.21(4). Section 801.21 does not provide substantive
reasons to protect a document; that law is found elsewhere. For
example, Wis. Stat. § 801.19 defines protected information that
must be omitted or redacted from circuit court records——
including passport and social security numbers. § 801.19(1)(a).
We also specified that the court may act on its own
6
initiative to "order sealing or redaction of any part of the
court record or transcript." Wis. Stat. § 801.21(6).
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No. 2020AP1032
And Wis. Stat. § 801.20(1) requires the director of state courts
to "maintain a list of commonly-filed documents made
confidential by statutes, court rules and case law." When the
law provides grounds for redacting or sealing a document, the
court must "use the least restrictive means that will achieve
the purposes of this rule and the needs of the requester."
§ 801.21(4). A comment to the rule stresses this "section is
intended to make it clear that filing parties do not have the
unilateral right to designate any filing as confidential and
that permission from the court is required." S. Ct. Order 14-
04, § 7.
¶19 In sum, Wisconsin law has a strong presumption in
favor of openness for judicial proceedings and records. But it
can be overcome by specific statutory or constitutional rights,
and in some circumstances, by the inherent power the
constitution vests in the judicial branch. The general
procedure this court has adopted involves redacting or sealing
documents or portions of documents, and any restriction on
public access must use the least restrictive means possible.
B. Analysis
¶20 Here, the circuit court concluded the parents may
file their complaint under seal protecting their names and
identities from the public. It did so after finding the risks
to the parents and their children were legitimate. The court
also ordered that the sealed, unredacted complaint would be
accessible only to the circuit court and to defense counsel
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No. 2020AP1032
following the adoption of a signed protective order.
Essentially, the narrow question in this case centers on the
parents' argument that granting defense counsel access to the
sealed complaint should be reversed. They assert that they and
their children face a serious risk of harm, their identities are
irrelevant to their legal claims, and disclosing their
identities to opposing counsel could result in that information
being leaked. At bottom, the parents want to litigate with
total anonymity, except with respect to the circuit court, or
alternatively, with respect to the circuit court and a small
subset of attorneys at one of the firms defending the District's
policy.
¶21 Perhaps recognizing the weakness of their argument
under existing law, the parents come with a bigger ask. Drawing
on federal case law, they ask us to adopt a new multifactor
balancing test. The parents focus our attention on several
factors with an established history of relevance in federal
courts: the plaintiffs are parents of minor children; the case
implicates deeply held beliefs likely to provoke an intense
emotional response; and release of their identities poses
significant risks of harassment and retaliation.7 They further
ask us to conduct our review de novo, giving no deference to the
circuit court.
7 Reference to federal law in this area is not improper.
Wisconsin courts have looked to federal cases for guidance on
sealing documents. See WISC-TV—Channel 3/Madison v. Mewis, 151
Wis. 2d 122, 134-35, 442 N.W.2d 578 (Ct. App. 1989).
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No. 2020AP1032
¶22 In response, the District argues that none of these
concerns would warrant withholding the parents' identities from
attorneys in the case, each of whom would be duty-bound by court
order to keep the parents' identities confidential. Defense
counsel says their strategy and ability to litigate these claims
could shift depending on each parent's unique circumstances.
This would impact, they assert, legal defenses they might
advance, as well as the scope of any temporary or permanent
relief ordered. The parents disagree, and say their identities
are irrelevant to their claims.
¶23 We begin with the standard of review. The court of
appeals in this case and in prior cases has held that the
circuit court's order should be reviewed for an erroneous
exercise of discretion. Doe 1, 399 Wis. 2d 102, ¶18, (citing
Krier, 288 Wis. 2d 623, ¶23). We agree. Under that standard, a
court must still determine whether the appropriate standard of
law was applied. Thus, a court incorrectly construing a statute
to support sealing a document could be reversed for applying an
improper standard of law. Krier, 288 Wis. 2d 623, ¶23 ("An
erroneous exercise of discretion occurs if . . . the trial court
applied the wrong legal standards."). But once the proper law
is identified and employed, the judgment call in determining
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No. 2020AP1032
whether to keep information confidential is rightly within the
circuit court's discretion.8 Id.¶24 In this case, the circuit court's decision to withhold
the parents' identities from the public and the District, but
not the District's attorneys, was well within its discretion.
As the District identified, resolving the parents' claims
through the courts could depend on a number of significant legal
questions which can be evaluated only if the District's
attorneys know the parents' identities.
¶25 Of no minor importance, the District's attorneys
stressed their independent ethical responsibilities under our
rules. For example, attorneys must avoid conflicts of interest.
See, e.g., SCR 20:1.7(a) ("[A] lawyer shall not represent a
client if the representation involves a concurrent conflict of
interest."). Among other circumstances, a conflict of interest
arises if "the representation of one client will be directly
adverse to another client," or if the representation involves
"the assertion of a claim by one client against another client
represented by the lawyer." SCR 20:1.7(a)(1), (b)(3). At oral
argument, the District expressed concern that its attorneys
cannot know if their representation of the District creates a
conflict of interest with any of the parents without knowing who
the parents are. Already in this case two of the parents
8We observe that discretionary review appears to be the
standard approach in federal courts as well. See, e.g., Doe v.
Village of Deerfield, 819 F.3d 372, 376 (7th Cir. 2016)
(reviewing "a motion for leave to proceed anonymously" "for
abuse of discretion only").
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No. 2020AP1032
voluntarily withdrew from the suit because the parents' counsel
determined their participation created a conflict of interest
for the District's attorneys. The parents suggest they can
police any potential conflicts, but our rules of ethics place
that independent responsibility on the attorneys representing
the District. See ABA Comment [2] SCR 20:1.7 (noting that
resolving a conflict of interest problem "requires the lawyer"
to take certain steps); ABA Comment [4] SCR 20:1.7 ("If a
conflict arises after representation has been undertaken, the
lawyer ordinarily must withdraw from representation, unless the
lawyer has obtained the informed consent of the
client . . . ."). At the very least, this is a significant
consideration regarding the parents' request to proceed without
revealing their identities to opposing counsel. The circuit
court exercised its discretion in this case in a way that
facilitates the District's attorneys' ability to follow their
ethical duties.
¶26 The parents' identities may also have implications for
the substantive issues in this case. Although the parents'
bring a facial challenge against the Policy, arguing it is
unconstitutional in every circumstance, facts specific to the
parents or their children could influence the availability and
scope of judicial relief. For example, the parents raise a free
exercise of religion claim under Article I, Section 18 of the
Wisconsin Constitution. But without knowing the parents'
identities, how can the District's attorneys inquire whether the
parents have a sincerely held religious belief regarding this
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No. 2020AP1032
aspect of their children's upbringing? Individual parents in
this case might also have differing beliefs which could affect
the evaluation of their claims. Additionally, it could be that
various factual wrinkles alter the nature of the alleged
violation of the right to parent one's child as well as the
scope of relief the parents could be entitled to. For example,
it is unclear if the constitutional right asserted would apply
in the same way to a parent whose child has turned 18 but is
still attending District schools. The same could be true of a
parent whose parental rights have been terminated by a court or
a parent who has ceded certain decisions to another parent
pursuant to a custody arrangement. If there is an
Individualized Educational Program in place for the child, that
could again complicate whether a particular parent is entitled
to relief. See Wis. Stat. § 115.787. Finally, the District
noted other legal defenses——including ripeness, mootness, and
lack of standing——which it asserts it cannot advance without
knowing the parents' identities. Each of these variables may
influence whether the parents are entitled to judicial relief,
or how far such relief should extend.9
¶27 The parents make an earnest plea that the risk of
harassment and retaliation is real. The problem with their
argument is that the circuit court agreed and protected their
9We do not decide that any of these considerations should
or will impact the claims. Rather, based on this briefing, we
conclude these concerns could impact the arguments the District
might reasonably make. And therefore, they weigh in favor of
affirming the circuit court's exercise of discretion.
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No. 2020AP1032
identities. Therefore, the crux of the parent's continued worry
is their fear that the attorneys on the other side will
intentionally or unintentionally violate the court's protective
order and expose them to the risks they identify. Attorneys are
duty-bound to follow court orders, however. We have no evidence
that any of the law firms defending the District's policy have
violated a protective order in the past or that there is any
risk of them doing so now. In fact, counsel for the parents
conceded to the circuit court that there was "no reason to doubt
that the lawyers in this case will make every effort to preserve
the plaintiffs' anonymity and follow a court order."
Nevertheless, the parents essentially make an unfounded
accusation that the attorneys on the other side will risk their
law licenses, through carelessness or otherwise. This pure
speculation lacks merit. Each attorney is an officer of the
court subject to strict ethical rules in the maintenance of
confidential information. Each would need to agree to a
protective order——the specifics of which have not yet been
negotiated. The parents present no reason to think the order to
keep their identities private as to the District and the general
public will not be followed.
¶28 Furthermore, we observe the circuit court's exercise
of discretion was a proper application of the statutory test.
Wisconsin Stat. § 801.21(4) directs that if "there are
sufficient grounds to restrict public access" to court records,
"the court will use the least restrictive means that will
achieve the purposes of this rule and the needs of the
19
No. 2020AP1032
requester." The circuit court concluded some protection for the
parents' identities was warranted and decided to shield their
names from public view and the District's view. But the court
did not see the same danger in disclosing the parents' names to
the District's attorneys. We see no error in this conclusion.
¶29 Although the parents frame their arguments around
whether Wisconsin permits totally anonymous litigation, we do
not decide that question because we need not. We leave for
another day whether a future litigant can proceed anonymously in
a case. Instead, we conclude that the circuit court's decision
to allow the parents to proceed pseudonymously, but not to
prevent opposing attorneys from knowing their identity, was well
within the circuit court's discretion.
III. INJUNCTION
¶30 Finally, the parents ask us to provide injunctive
relief on the underlying Policy. As best we can tell, this
request stems from two different statutory bases——Wis. Stat.
§ 808.07(2)(a) and Wis. Stat. § 813.02——following several
motions the parents filed with the circuit court and court of
appeals. Given the posture of this case, it is not appropriate
to grant the parents' requested temporary relief.
¶31 We first address the request for temporary injunctive
relief under Wis. Stat. § 808.07(2)(a). That statute provides:
"During the pendency of an appeal" circuit courts and appellate
courts are permitted to: "1. Stay execution or enforcement of a
judgment or order; 2. Suspend, modify, restore or grant an
20
No. 2020AP1032
injunction; or 3. Make any order appropriate to preserve the
existing state of affairs or the effectiveness of the judgment
subsequently to be entered." § 808.07(2)(a). Notably, any
injunctive relief granted under § 808.07(2)(a) lasts only
"[d]uring the pendency of an appeal." Once an appeal ends, an
injunction issued under § 808.07(2)(a) terminates. In addition,
Wis. Stat. § (Rule) 809.12 requires that any "person seeking
relief under s. 808.07 shall" file the motion in circuit court
first unless impractical. Accordingly, in the ordinary course,
an appellate court reviews a circuit court's decision on a
motion seeking relief pending appeal under an erroneous exercise
of discretion standard. Werner v. A.L. Grootemaat & Sons, Inc.,
80 Wis. 2d 513, 519, 259 N.W.2d 310 (1977). The appellate court
does not conduct the analysis anew; it looks for a reasonable
basis to sustain a circuit court's discretionary decision.
State v. Rhodes, 2011 WI 73, ¶26, 336 Wis. 2d 64, 799
N.W.2d 850.
¶32 Here, the circuit court granted in part and denied in
part the parents' motion for a temporary injunction pending
appeal under Wis. Stat. § 808.07(2)(a).10 The court of appeals
concluded the circuit court properly exercised its discretion
and declined to grant any further relief. Doe 1 v. Madison
As previously noted, the court enjoined the district
10
"from applying or enforcing" the policy "in any manner that
allows or requires District staff to conceal information or to
answer untruthfully in response to any question that parents ask
about their child at school, including information about the
name and pronouns being used to address their child at school."
21
No. 2020AP1032
Metro Sch. Dist., No. 2020AP1032, unpublished order (Wis. Ct.
App. Nov. 9, 2020). This is an appeal of the circuit court's
confidentiality decision, however, which this opinion resolves——
thereby ending the appeal. Even if we thought the lower courts
erred, any decision to provide further injunctive relief pending
appeal would immediately be a dead letter by virtue of this
decision. Therefore, the motion for relief pending appeal is
moot. See PRN Assocs. LLC v. DOA, 2009 WI 53, ¶25, 317
Wis. 2d 656, 766 N.W.2d 559 ("An issue is moot when its
resolution will have no practical effect on the underlying
controversy."). Addressing these matters now would constitute
an advisory opinion on an issue that is, albeit in a different
posture, still pending in the circuit court below. See State ex
rel. Collison v. City of Milwaukee Bd. of Rev., 2021 WI 48, ¶46,
397 Wis. 2d 246, 960 N.W.2d 1 (declining to "depart from our
general practice that this court will not offer an advisory
opinion"). Accordingly, we decline to provide any relief under
§ 808.07(2)(a).
¶33 The parents also appear to ask us for injunctive
relief under Wis. Stat. § 813.02. That section provides in
relevant part:
When it appears from a party's pleading that the party
is entitled to judgment and any part thereof consists
in restraining some act, the commission or continuance
of which during the litigation would injure the party,
or when during the litigation it shall appear that a
party is doing or threatens or is about to do, or is
procuring or suffering some act to be done in
violation of the rights of another party and tending
22
No. 2020AP1032
to render the judgment ineffectual, a temporary
injunction may be granted to restrain such act.
§ 813.02(1)(a). The parents assert that they can bring such a
motion directly to an appellate court under Wis. Stat. § (Rule)
809.14, which sets forth the procedure for filing motions in
appellate courts. See § (Rule) 809.14(1) ("A party moving the
appellate court for an order or other relief in a case shall
file a motion for the order or other relief.").
¶34 The parents first moved for injunctive relief under
Wis. Stat. § 813.02 in the circuit court. That motion remains
before the circuit court pending resolution of this appeal. The
parents now seem to suggest the circuit court erred by failing
to address their § 813.02 motion. As best we can tell from the
record, the circuit court reasoned that it could not address the
parents' claim for irreparable harm——a central component of the
temporary injunction standard——without additional information
gleaned from disclosure of their identities (while still
concealing that information from the public). Once the parents
appealed the circuit court's confidentiality decision, the
circuit court did not believe it had the necessary information
to decide the motion.
¶35 We decline to address whether the circuit court's
decision to wait to adjudicate this motion was erroneous. The
parents have not developed any arguments for how this court
should determine whether the circuit court erred or whether this
would be the proper vehicle to address a circuit court's non-
decision. Beyond complaining that the motion has not been
23
No. 2020AP1032
decided yet, the parents jump right into the merits of their
plea for injunctive relief, never developing an argument that
the circuit court committed procedural error. As we have said
many times, "We do not step out of our neutral role to develop
or construct arguments for parties; it is up to them to make
their case." Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020
WI 67, ¶24, 393 Wis. 2d 38, 946 N.W.2d 35. With the appeal
resolved, we expect the circuit court will address the pending
motion and all other matters put on hold by virtue of this
appeal.
¶36 The parents also sought a temporary injunction under
Wis. Stat. § 813.02 from the court of appeals. In that motion,
the parents stated that they believed there was no meaningful
difference from the relief they could receive under either
§ 813.02 or Wis. Stat. § 808.07. The court of appeals addressed
this motion in a footnote, stating that its decision to uphold
the circuit court's injunction and not grant any further relief
would be the same under either statute.11 Doe 1, No. 2020AP1032,
unpublished order at 6 n.4. But the court of appeals also noted
11The parents' procedural arguments are difficult to track,
but for the reasons we explain below, it's not clear the court
of appeals was correct that the analysis would be the same. We
understand the parents to be seeking a separate injunction under
Wis. Stat. § 813.02. If so, and if that is a new, independent
motion, it presumably would not come with the same deference the
court of appeals properly gave to the circuit court's decision
on the parents motion for relief pending appeal under Wis. Stat.
§ 808.07(2)(a).
24
No. 2020AP1032
"the parents do not explain why this court would have authority
to grant injunctive relief under § 813.02."12 Id.
¶37 We observe, as the court of appeals did, that the
parents provide no authority to support the notion that we
should decide a motion for temporary injunction under Wis. Stat.
§ 813.02 in the first instance. This is especially true when
such a motion is pending and unresolved before the circuit
court. Allowing this procedural leap-frog would render nugatory
the discretionary review appellate courts apply when reviewing
any form of temporary injunctive relief granted or denied by the
circuit court. A litigant could simply seek the same injunctive
relief at each level by filing a new motion under § 813.02, and
thereby sidestep the deferential standard of review appellate
courts apply in this context.13 While we cannot say such a
At oral argument, the parents' counsel stated that the
12
circuit court on remand would be bound by the court of appeals'
decision on the Wis. Stat. § 813.02 motion. We disagree. The
court of appeals declined to address the parents' motion as a de
novo matter under § 813.02, instead appearing to view its role
as reviewing the circuit court's exercise of discretion. On
remand, the circuit court can, in the first instance, address
the parents' motion for a temporary injunction filed under
§ 813.02.
See Wis. Ass'n of Food Dealers v. City of Madison, 97
13
Wis. 2d 426, 429, 293 N.W.2d 540 (1980) ("The denial of a
temporary injunction under [Wis. Stat. § 813.02(1)] is a matter
within the discretion of the trial court, and the sole issue on
appeal is whether the trial court abused its discretion.");
Browne v. Milwaukee Bd. of Sch. Dirs., 83 Wis. 2d 316, 336, 265
N.W.2d 559 (1978) ("The power to grant a temporary injunction
lies within the discretion of the trial court. The trial
court's decision concerning an injunction will not be reversed
unless the discretion has been abused."); Codept, Inc. v. More-
Way N. Corp., 23 Wis. 2d 165, 171, 127 N.W.2d 29 (1964) ("It is
an elementary rule of law that the granting or refusal of a
25
No. 2020AP1032
motion would never be appropriate, we are unable to find any
support for the proposition that addressing a new motion for
injunctive relief under § 813.02 would be proper at this
juncture.
¶38 The original preliminary injunction motion under
§ 813.02 remains pending in circuit court. Following the
ordinary rules of litigation and appellate procedure dictates
allowing the circuit court to address the matter. If authority
exists for the procedural process advocated by the parents, they
have not provided it. It seems that the only way this court
could do what we are being asked to do would be a dramatic and
unprecedented invocation of our superintending authority over
lower courts. We were not asked to rely on these extraordinary
powers, and we will not construct such an argument for the
parents. See Vos, 393 Wis. 2d 38, ¶24.
¶39 The parents also indicate that the injunction
arguments would be the same in a subsequent appeal, and propose
that we should just step in and settle the matter now. This is
a troubling suggestion. As an initial matter, we do not know
how arguments may develop as this case proceeds or how the
circuit court's decision could affect them. But even if the
temporary injunction is a matter lying within the discretion of
the trial court, and its determination in regard thereto will
not be upset on appeal unless an abuse of discretion is
shown."); Gimbel Bros. v. Milwaukee Boston Store, 161 Wis. 489,
497, 154 N.W. 998 (1915) ("We conclude that it was within the
sound discretion of the trial court to refuse the injunction
prayed for.").
26
No. 2020AP1032
arguments remained identical, that does not provide a foundation
for us to opine on legal issues not properly before us.
Litigation rules and processes matter to the rule of law just as
much as rendering ultimate decisions based on the law. Ignoring
the former to reach the latter portends of favoritism to certain
litigants and outcomes. We do not suggest the constitutional
claims here are inconsequential. But our adjudication of them
must be rooted in applying the same rules to everyone. Our
rules of judicial process matter, and we will follow them.14
¶40 In sum, we decline the parents' request for temporary
injunctive relief under Wis. Stat. § 808.07(2)(a) because any
relief we could grant would immediately become moot. We also
decline the request for temporary injunctive relief under Wis.
Stat. § 813.02. Such a motion remains pending in the circuit
court, and the parents have provided no authority to support the
notion that we can or should grant injunctive relief under
§ 813.02 in this procedural context. We do not reach the merits
of the injunction motion at this preliminary stage of the
litigation.
The dissent does not claim that the parents' temporary
14
injunction request is something we can address in the normal
course. Instead, it advocates an extraordinary constitutional
intervention not even argued by the parents, and suggests
failure to follow its lead constitutes an abdication of the
court's responsibility. We reject the dissent's sense of
judicial duty.
27
No. 2020AP1032
IV. CONCLUSION
¶41 This is an appeal of a circuit court's decision to
allow parents challenging the District's Policy to remain
confidential, but not as to the attorneys for those defending
the Policy. We conclude the circuit court did not erroneously
exercise its discretion in drawing this line. The parents
further ask this court to grant temporary injunctive relief on
the underlying Policy. But the request for relief pending
appeal is moot by virtue of this decision, and the underlying
preliminary injunctive relief sought remains pending before the
circuit court. Addressing the parents' request for injunctive
relief is therefore not proper for a case at this preliminary
stage. We affirm the court of appeals and remand to the circuit
court to proceed with the adjudication of the parents' claims.
By the Court.——The decision of the court of appeals is
affirmed and the cause is remanded to the circuit court.
28
No. 2020AP1032.pdr
¶42 PATIENCE DRAKE ROGGENSACK, J. (dissenting). Today
the majority opinion abdicates the court's responsibility, once
again, by choosing not to address the critical issue on which
this case turns: the constitutional right of parents to raise
their children as they see fit.1 Today, parents' constitutional
rights, the high burden of proof required to intervene in
parents' parenting decisions, and the presumption that parents
act in the best interests of their children are all upended by
the majority opinion's silence. It fails parents, fails to
uphold the constitution, and fails to provide parents with due
process before Madison Metropolitan School District (MMSD),
acting behind closed doors, overtakes parents' constitutional
right to parent their own children.
¶43 The John Doe plaintiffs (hereinafter the parents) have
children in the MMSD. They sue on behalf of all parents with
children in MMSD, not on behalf of any particular parent-child
1 This court, in a series of recent decisions, has shown an
unwillingness to resolve significant legal issues presented to
us for decision. Hawkins v. Wis. Elections Comm'n, 2020 WI 75,
¶¶29-83, 393 Wis. 2d 629, 948 N.W.2d 877 (Ziegler, J.
dissenting); Trump v. Biden, 2020 WI 91, ¶62, 394 Wis. 2d 629,
951 N.W.2d 568 (Roggensack, C.J. dissenting); Gymfinity, Ltd. v.
Dane Cnty., No. 2020AP1927-OA, unpublished order (Wis. Dec. 21,
2020); Trump v. Evers, No. 2020AP1971-OA, unpublished order
(Wis. Dec. 3, 2020); Wis. Voters All. v. Wis. Elections Comm'n,
No. 2020AP1930-OA, (Wis. Dec. 4, 2020); Mueller v. Jacobs,
No. 2020AP1958-OA, unpublished order (Wis. Dec. 3, 2020);
Zignego v. Wis. Elections Comm'n, No. 2019AP2397, unpublished
order (Wis. Jan. 13, 2021); Stempski v. Heinrich,
No. 2021AP1434-OA, unpublished order (Wis. Aug. 27, 2021); Gahl
v. Aurora Health Care, Inc., No. 2021AP1787, unpublished order
(Wis. Oct. 25, 2021); State ex rel. Robin Vos v. Cir. Ct. for
Dane Cnty., No. 2022AP50-W, unpublished order (Wis. Jan. 11,
2022).
1
No. 2020AP1032.pdr
relationship. As such, any individual parent's name is
irrelevant to the constitutional analysis. They assert that a
MMSD guidance policy that affirms a child's gender transition to
a sexual designation different from the child's sex at birth and
deceives the child's parents about that choice violates their
fundamental constitutional rights as parents contrary to Article
I, Section 1 of the Wisconsin Constitution and the Fourteenth
Amendment of the United States Constitution. The parents seek
to enjoin MMSD from continuing to usurp their constitutional
right to direct the upbringing and education of their children
by requiring MMSD to immediately disclose a child's gender-
identity concerns to the parents and by preventing MMSD from
enabling their children to change gender-identity without
parental consent. They also seek to go forward in this case
using pseudonyms.
¶44 A majority of this court blocks all relief for parents
by restructuring the pending dispute. The majority says: "The
main question before us is a narrow one: Did the circuit court
err in ordering the parents to file a sealed complaint with
their names and addresses which would be viewed by the court and
attorneys alone?"2 We accepted more than the question of using
pseudonyms when we accepted review.
¶45 The majority opinion's restructuring of the
controversy denies all parents who have children in a MMSD
school a forum in which to litigate MMSD's usurpation of their
constitutional right to direct the upbringing of their children.
2 Majority op., ¶11.
2
No. 2020AP1032.pdr
Both the United States Constitution and the Wisconsin
Constitution support the conclusion that MMSD's Policies cannot
deprive parents of their constitutional rights without proof
that parents are unfit, a hearing, and a court order, in other
words, without according parents due process. Instead, the
majority keeps MMSD as the decision-maker of basic healthcare
choices that may involve gender-identity for children who attend
a MMSD school. And finally, the majority's non-decision,
decision participates in MMSD's ability to hide from parents
what MMSD actually has been doing behind closed schoolhouse
doors.
¶46 The circuit court erred when it concluded that it
could not permit parents to employ pseudonyms in this lawsuit.
The court of appeals erred in affirming that decision, even
while noting that the circuit court did have the power to permit
the use of pseudonyms, contrary to the circuit court's decision.
¶47 Furthermore, I conclude that we can and should employ
our constitutional supervisory authority to decide this
constitutional controversy because it cries for judicial
resolution. This court, as a court of last resort, should act
to affirmatively grant parents' request for a temporary
injunction that enjoins MMSD from: (1) enabling children to
socially transition to a different gender-identity without
parental consent; (2) preventing teachers and other staff from
telling parents that their child may have gender-identity
concerns; and (3) deceiving parents by using different names and
pronouns in front of parents than are used at school. For the
3
No. 2020AP1032.pdr
reasons set out below, I conclude that the circuit court erred
in not granting the temporary injunction that was requested in
February of 2020. Because the majority opinion chooses not to
decide the constitutional controversy that was presented, I
respectfully dissent.
I. BACKGROUND
¶48 The parents filed this action for Declaratory Judgment
in Dane County Circuit Court on February 18, 2020, seeking
declaration that MMSD violated their constitutional right to
direct the upbringing of their children through employment of
MMSD's "Guidance & Policies to Support Transgender, Non-binary &
Gender-Expansive Students" (hereinafter MMSD Policies). They
filed this case anonymously, using pseudonyms due to the
sensitive nature of their claims. They sought to protect the
identity of minor children and to protect parents and their
children from retaliation or harassment for raising a
controversial issue.
¶49 The parents also sought a temporary injunction
prohibiting MMSD from enabling children to socially transition
to a different gender-identity at school by selecting a new
"affirmed name and pronouns" without parental notice and
consent. MMSD moved to dismiss the complaint because parents
had not provided their names and addresses.
¶50 The circuit court did not rule on the parents' request
for a temporary injunction. However, the circuit court found:
[A]s a factual matter, I believe the plaintiffs have
satisfied the court of the need to preserve their
confidentiality and, in particular, when analyzed
against the backdrop of the relevance or irrelevance
4
No. 2020AP1032.pdr
of their identity on their ability to challenge the
policy in question. . . . "[A]s a factual matter,
would their names be disclosed, they would likely be
subject to threats and intimidation, which would be
wholly inappropriate and frustrate the orderly
functioning of the [circuit] court case.[3]
¶51 Although the circuit court denied MMSD's motion to
dismiss, the circuit court also required the parents to file an
amended complaint containing their names and addresses, which
would be accessible to the circuit court and "attorneys for the
litigants." Because the circuit court found that the parents
and their children would be subjected to harassment due to their
positions on the MMSD gender-identity policy, the circuit court
ordered that the amended complaint was to be filed under seal.
¶52 The parents appealed the circuit court's requirement
of identity disclosure, and the court of appeals affirmed. The
parents petitioned us for review, which we granted. In their
petition, the parents asked us to review whether they may sue
anonymously in Wisconsin courts, and they also asked us to
review whether the circuit court erred by declining to
temporarily enjoin MMSD's Policies that infringe parents'
constitutional right to parent their children, which motion for
a temporary injunction the parents filed on February 19, 2020,
the day after they filed this action.
II. DISCUSSION
A. Standard of Review
¶53 We review the circuit court's decision that it lacked
authority to permit the parents to use pseudonyms in this
3 Circuit Ct. Decision, May 26, 2020, 22.
5
No. 2020AP1032.pdr
litigation for an erroneous exercise of discretion. State v.
Schwind, 2019 WI 48, ¶2, 386 Wis. 2d 526, 926 N.W.2d 742.
Whether the circuit court actually lacked such authority
presents as a question of law that is subject to our independent
review. State v. Henley, 2010 WI 97, ¶29, 328 Wis. 2d 544, 787
N.W.2d 350. A court erroneously exercises its discretion when
it applies an incorrect standard of law to the question
presented. Krier v. EOG Env't, Inc., 2005 WI App 256, ¶23, 288
Wis. 2d 623, 707 N.W.2d 915.
¶54 We review independently whether MMSD's Policies
interfere with the parents' constitutional right to raise their
children as they see fit such that their request for a temporary
injunction should have been granted. State v. Lavelle W., 2005
WI App 266, ¶2, 288 Wis. 2d 504, 708 N.W.2d 698. Whether this
court should employ its superintending authority to address the
parents' request for a temporary injunction is a discretionary
decision subject to our independent review. State v. Green,
2022 WI 30, ¶3, 401 Wis. 2d 542, 973 N.W.2d 770.
B. Pseudonyms in Litigation
¶55 The circuit court was asked to permit parents' use of
pseudonyms in this litigation. The parents made their motion
based on concerns that they and their children would be harassed
and the litigation disrupted if the parents' names were known.
The circuit court found that their concerns were valid. The
circuit court said:
I agree with the plaintiff, Mr. Berg, in terms of
the factual basis they've demonstrated on the
legitimacy and sincerity of their concern over the
release of their identities. And so as a factual
6
No. 2020AP1032.pdr
matter, I believe the plaintiffs have satisfied the
court of the need to preserve their confidentiality
and, in particular, when analyzed against the backdrop
of the relevance or irrelevance of their identity on
their ability to challenge the policy in question.[4]
However, the circuit court precluded the use of pseudonyms
because it concluded that it did not have the authority to
authorize their use. The circuit court explained:
I'm bound by Wisconsin law, both in terms of what the
statutes set forth and the Wisconsin common law as
established by the Supreme Court. There is no
precedent for what the plaintiff is asking for in the
current published appellate case law.[5]
¶56 Here, the circuit required disclosure of the parents'
names to the court and to all parties' attorneys in the
litigation. The parents do not object to filing an amended
complaint that discloses their names for review by the circuit
court. However, they do object to permitting review by the
parties' attorneys. They contend that a leak of their
identities is multiplied by the number of people who have that
information. Once the parents' identities are disclosed, there
is no way of undoing that disclosure, and as the circuit court
found, harassment of the parents and their children and
disruption of this litigation likely will follow.
¶57 The circuit court concluded that allowing the parties'
attorneys to view the amended complaint was acceptable because
the attorneys could be expected to keep the parents' identities
confidential. The circuit court did not assess whether any
4 Circuit Ct. Hr'g Tr., May 26, 2020, at 22.
5 Id.7
No. 2020AP1032.pdr
remedy could be provided to the parents and their children when
their identities were disclosed.
¶58 Litigation conducted anonymously has been permitted in
very similar circumstances in federal district courts. It has
been approved by the Fifth, Sixth, Seventh, and Ninth Circuits.
For example, in Doe ex rel. Doe v. Elmbrook Sch. Dist., 658 F.3d
710, 721-24 (7th Cir. 2011), the court concluded that the
district court carefully considered detailed affidavits
supporting the request to proceed anonymously. Therefore, it
affirmed the district court's decision.
¶59 The United States Supreme Court has approved the use
of pseudonyms in litigation, explaining, "Our decision in Roe v.
Wade, establishes [] that, despite her pseudonym, we may accept
as true, for this case, Mary Doe's existence and her pregnant
state." Doe v. Bolton, 410 U.S. 179, 187 (1973), abrogated by
Dobbs v. Jackson Women's Health Org., No. 19-1392, 2022 WL
2276808 (U.S. June 24, 2022). However, we do not need to adopt
federal standards in order to permit litigation by pseudonyms in
Wisconsin. As I explain below, Wisconsin courts have that
authority.
¶60 When justice has required it, we have approved
limiting public access to judicial records. For example, in
State ex rel. Bilder v. Delavan Twp., 112 Wis. 2d 539, 334
N.W.2d 252 (1983), we explained:
The circuit court under its inherent power to preserve
and protect the exercise of its judicial function of
presiding over the conduct of judicial proceedings has
the power to limit public access to judicial records
when the administration of justice requires it.
8
No. 2020AP1032.pdr
Id. at 556. We also have recognized that "the inherent power of
the courts 'in many respects goes beyond those conferred by
statute.'" Id. The party seeking "to close court records bears
the burden of demonstrating, with particularity, that the
administration of justice requires that the court records be
closed." Id. at 556-57.
¶61 The command, "when administration of justice so
requires" is at the core of Wisconsin courts' power to proceed
as an independent judiciary. This power may require protection
of some who are involved in Wisconsin's judicial system. Gabler
v. Crime Victims Rts. Bd., 2017 WI 67, ¶58, 376 Wis. 2d 147, 897
N.W.2d 384 (explaining that "a concern about possible re-
traumatization of victims influenced our decision permitting the
Department of Justice to withhold requested public records" in
the administration of justice). In Wisconsin, the
administration of justice permits a court to "make any order
which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense" including closing court records. State ex rel.
Mitsubishi Heavy Indus. Am., Inc. v. Cir. Ct. for Milwaukee
Cnty., 2000 WI 16, ¶40, 233 Wis. 2d 1, 605 N.W.2d 868.
¶62 The court of appeals, in its review of the circuit
court's order that permitted review of the parents names by the
attorneys for all parties to this litigation, disagreed with the
circuit court's assessment of its own power. It concluded that
the circuit court had the power to permit the parents to use
pseudonyms in this litigation rather than requiring their actual
9
No. 2020AP1032.pdr
names. Doe v. Madison Metro. Sch. Dist., 2021 WI App 60, ¶31
n.8, 399 Wis. 2d 102, 963 N.W.2d 823. It said, "Wisconsin
circuit courts have the power to enter as restrictive a
protective order as is warranted, taking into account the facts
and circumstances of a particular case and the public interest
or the administration of justice." Id.¶63 However, the court of appeals nevertheless "decline[d]
to adopt" the use of pseudonyms rather than the statutory
procedure set out in Wis. Stat. § 801.21(2). Id., ¶31. The
court of appeals did not evaluate whether a remedy could be
provided to the parents and their children when a disclosure of
their identities occurred. It seemed to presume that no such
leak would occur.
¶64 The circuit court and the court of appeals appear not
to have realistically considered what likely will occur with
regard to the parents' identities in today's tell-all world.
Even the United States Supreme Court, an institution that has
historically demanded the highest levels of integrity and
confidentiality, has been subject to unauthorized leaks. These
leaks have consequences. One need look no further than this
case for examples. Following the leak of the Supreme Court's
draft opinion in regard to abortion, Wisconsin Family Action, an
amicus in this case, had its offices vandalized and attacked
with Molotov cocktails.6 Here, the circuit court found that the
Press
6 Release, Wisconsin Family Action, Historical
Mothers' Day 2022 Attack on Wisconsin Family Action,
https://wifamilyaction.org/mothers-day-attack-wfa.
10
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parents and their children likely would be subjected to
harassment if parental identities were disclosed.7
¶65 The judicial system has no remedy for a violation of
the confidentiality of an amended complaint that identifies the
parents when filed under seal as the circuit court ordered.
Unnecessary harm will be inflicted on parents and minor
children. There is no compelling reason to ignore the very real
possibility of a leak of the parents' identities and the
inability of the court to fashion a remedy for the disclosure.
In the interests of the administration of justice, the circuit
court should have permitted the use of pseudonyms. Gabler, 376
Wis. 2d 147, ¶58; Bilder, 112 Wis. 2d at 556; Mitsubishi Heavy
Indus. Am., 233 Wis. 2d 1, ¶40.
¶66 I agree with the conclusion of the court of appeals
that the circuit court erred when it applied the wrong legal
standard to the parents' motion to proceed by pseudonyms. In so
doing, the circuit court erroneously exercised its discretion.
Krier, 288 Wis. 2d 623, ¶23. The circuit court had the power to
permit the use of pseudonyms, as the court of appeals explained.
Doe 1, 399 Wis. 2d 102, ¶31 n.8. I conclude the circuit court
erred, and the court of appeals did so as well, in requiring the
parents to disclose their identities to the attorneys for the
other parties to the litigation. Neither court evaluated or
appreciated that there is no remedy for leaks of parental
identities. Both courts acknowledged that disclosure of
identities likely would lead to harassment of the parents and
7 Circuit Ct. Decision, May 26, 2020, 22.
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their children and disruption of this litigation, but they
neglected to recognize or evaluate how that would affect the
administration of justice. Stated otherwise, their neglect
affected the core of our independence as courts: the
administration of justice. It was error to fail to evaluate the
effect on the parents and the minor children were identities
disclosed.
C. Constitutional Right to Parent
¶67 The constitutional right of parents to direct the
raising of their children is at the heart of this lawsuit. It
is that constitutional right that the majority opinion
intentionally disregards.8 Schools do not have the right to
parent our children on gender-identity issues. Yet, a majority
of this court greets parents' pleas to temporarily enjoin MMSD
with silence, which silence permits schools to make gender-
identity decisions for children in a MMSD school without
parental knowledge or consent.
¶68 Furthermore, as we consider the constitutional right
to parent that is raised in the Petition for Review, it is
important to note that a part of the problem we face here is of
the circuit court's own making. On February 19, 2020, the
parents moved for Temporary Injunction to enjoin MMSD's Policies
while this litigation is pending. They sought to prohibit MMSD
from:
"It is emphatically the province and duty of the judicial
8
department to say what the law is. Those who apply the rule to
particular cases, must of necessity expound and interpret that
rule." Marbury v. Madison, 1 Cranch 137, 177 (1803).
12
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(1) enabling children to socially transition to a
different gender identity at school by selecting a new
"affirmed named and pronouns," without parental notice
or consent; (2) preventing teachers and other staff
from communicating with parents that their child may
be dealing with gender dysphoria, or that their child
has or wants to change gender identity, without the
child's consent; and (3) deceiving parents by using
different names and pronouns around parents than at
school.
The parents asserted in their motion that some of the "policies
violate parents' constitutional rights to direct the upbringing
of their children." They asserted that "[w]hether a child with
gender dysphoria should socially transition to a different
gender identity is a significant and controversial healthcare
decision that falls squarely within parental decision-making
authority."
¶69 More than two years have passed without a decision by
the circuit court on the parents' motion for a Temporary
Injunction. If the circuit court had addressed the pending
motion, the losing party could have appealed that decision years
ago. The litigation could have returned to the circuit court to
decide whether the identities of the parents were irrelevant, as
the parents contend because they sue on behalf of all parents to
raise their children as they see fit, or relevant identities, as
MMSD alleges. The administration of justice is affected by the
circuit court's non-decision because by not deciding, the
circuit court has effectively denied the motion for a temporary
injunction and the circuit court also has denied the parents'
opportunity to appeal an adverse ruling.
¶70 The Petition for Review, raised the issue of temporary
injunction standards, contending that "the lower courts'
13
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decisions are directly 'in conflict with' this Court's
'controlling' precedents as to proper application of the
temporary injunction standards . . . ."9 The Petition for Review
did so, recognizing that the circuit court and court of appeals
had decided motions for injunction pending appeal, and also
recognizing that the standard for whether to grant a temporary
injunction, Werner v. A.L. Grootemaat & Sons, Inc., 80 Wis. 2d
513, 519, 259 N.W.2d 310 (1977), and a stay pending appeal,
State v. Gudenschwager, 191 Wis. 2d 431, 440, 529 N.W.2d 225(1995), employ similar tests.
¶71 The parents moved for an injunction pending appeal
pursuant to Wis. Stat. § 808.07(2)(a), which the majority
opinion denied because its decision ends the appeal and
therefore any injunction pending appeal that it would grant
would also end with its decision.10 The parents also renewed
their request for a temporary injunction pursuant to Wis. Stat.
§ 813.02.
¶72 The majority opinion ignores this part of the Petition
for Review, claiming that the parents have not provided a legal
theory by which the majority could reach the failure of the
circuit court to address the motion for a temporary injunction
that has been pending for more than two years.11 By its
decision, the majority opinion chooses to duck the significant
question of constitutional law that was raised in the Petition
9 Petition for Review, Aug. 13, 2021, 3.
10 Majority op., ¶40.
11 Id., ¶¶38, 39.
14
No. 2020AP1032.pdr
for Review, which I address below. The majority opinion also
chooses to ignore the circuit court's failure to meet its
obligations under SCR 70.36(1)(b),12 which required a decision on
the motion for a temporary injunction within 180 days. The
majority opinion does so as it also chooses to ignore our
obligation to supervise all Wisconsin courts. Wis. Const. art.
VII, § 3.13
¶73 As I begin, I remind the reader that under our
constitutional supervisory authority, we have the power to
decide whether parts of MMSD's Policies should be enjoined, as
was requested in the Petition for Review. This court is vested
with "superintending and administrative authority over all
courts." Koschkee v. Evers, 2018 WI 82, ¶8, 382 Wis. 2d 666,
913 N.W.2d 878 (quoting Wis. Const. art. VII, § 3). This
superintending authority is "as broad and as flexible as
necessary to insure the due administration of justice in the
courts of this state." Id. (quoting In re Kading, 70 Wis. 2d
508, 520, 235 N.W.2d 409 (1975)). Further, this power is not
Supreme Court Rule 70.36 requires circuit court judges to
12
"decide each matter submitted for decision within 90 days of the
date on which the matter is submitted to the judge in final
form." Judges may file for extensions with the chief judge of
the judicial administrative district. However, even this
extension, which must be requested and granted within five days
of the overrunning the original 90 day timeline, is available
for "one additional period of 90 days." SCR 70.36(1)(a). Any
further extension must be granted by the Supreme Court and will
be done only "for specific matters as exigent circumstances may
require." SCR 70.36(1)(b).
Article VII, Section 3 of the Wisconsin Constitution
13
provides: "The supreme court shall have superintending and
administrative authority over all courts."
15
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strictly limited to situations in which it was previously used,
continuing supervision is required in response to changing needs
and circumstances. Koschkee, 382 Wis. 2d 666, ¶8.
¶74 In Koschkee, we considered our authority over the
practice of law, in and out of court as connected with the
exercise of judicial power and the administration of justice.
Id., ¶9. We employed our supervisory authority because we
concluded that the "necessities of justice" required us to do
so. Id., ¶12. We used it to conclude that "Evers and DPI are
entitled to counsel of their choice and are not required to be
represented by DOJ." Id. Here, we should exercise our
supervisory authority over a circuit court's failure to decide a
motion that has been pending for more than two years contrary to
SCR 70.36 and contrary to the administration of justice.
¶75 The pending motion is for a temporary injunction. In
Wisconsin, courts may grant a temporary injunction to restrain a
party's actions:
When it appears from a party's pleading that the party
is entitled to judgment and any part thereof consists
in restraining some act, the commission or continuance
of which during the litigation would injure the party,
or when during the litigation it shall appear that a
party is doing or threatens or is about to do, or is
procuring or suffering some act to be done in
violation of the rights of another party and tending
to render the judgment ineffectual.
Wis. Stat. § 813.02(1)(a). The motion for temporary injunction
should have been decided years ago. In its present undecided
state, there is no decision from which to appeal, and yet the
circuit court's failure to decide the pending motion for a
temporary injunction stands in the way of the administration of
16
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justice in this litigation. This is so because by failing to
decide the pending motion, the circuit court effectively denied
it and also denied the parents the opportunity to appeal an
unfavorable ruling.
¶76 In order to fully understand this dissent, it is
important to appreciate the fundamental constitutional right
upon which these proceedings are grounded. Therefore, a review
of long-standing protections for the relationship of parent and
child will be helpful.
¶77 For hundreds of years, parents' right to direct the
upbringing and education of their children has been a
fundamental and protected right under Article I, Section 1 of
the Wisconsin Constitution and the Due Process Clause of the
Fourteenth Amendment. Michels v. Lyons, 2019 WI 57, ¶15, 387
Wis. 2d 1, 927 N.W.2d 486; Jackson v. Benson, 218 Wis. 2d 835,
879, 578 N.W.2d 602 (1998); Wis. Indus. Sch. for Girls v. Clark
Cnty., 103 Wis. 651, 668-70, 79 N.W. 422 (1899).
¶78 As many Supreme Court decisions have shown, the Due
Process Clause of the Fourteenth Amendment of the United States
Constitution protects parents' right to decide the upbringing of
their own children. Meyer v. Nebraska, 262 U.S. 390, 403 (1923)
(concluding that parents possessed the right to direct whether
their children would study German in elementary school under the
Fourteenth Amendment); Pierce v. Soc'y of the Sisters of the
Holy Names of Jesus & Mary, 268 U.S. 510, 534-35 (1925)
(concluding that the state requirement that children must attend
public schools was contrary to the parents' Fourteenth Amendment
17
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liberty interest of directing the upbringing and education of
their children).
¶79 The United States Supreme Court has continually
reinforced the primacy of parents when making decisions
concerning the upbringing of their children, considering the
right as "established beyond debate as an enduring American
tradition." Wisconsin v. Yoder, 406 U.S. 205, 232-33 (1972);
see also Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ("It
is cardinal with us that the custody, care and nurture of the
child reside first in the parents, whose primary function and
freedom include preparation for obligations the state can
neither supply nor hinder."). When it comes to a decision on
"whether to expose their child[] to certain . . . ideas[,]" the
parents, not the government, "should be the ones to choose." In
re Custody of Smith, 969 P.2d 21, 31 (Wash. 1998), aff'd sub
nom. Troxel v. Granville, 530 U.S. 57 (2000).
¶80 Serving as a foundation of this right is the
presumption that parents "possess what a child lacks in
maturity, experience, and capacity for judgment required for
making life's difficult decisions." Parham v. J.R., 442 U.S.
584, 602 (1979). Furthermore, natural bonds of affection "lead
parents to act in the best interests of their children." Id.(citing 1 W. Blackstone, Commentaries, at *447.). Of course,
this presumption may be rebutted. However, "[t]he state's power
to displace parental discretion is limited . . . and must be
justified on a case-by-case basis." Schleifer by Schleifer v.
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City of Charlottesville, 159 F.3d 843, 861 (4th Cir. 1998)
(Michael, J., dissenting).
¶81 In Troxel v. Granville, which involved a Washington
statute that permitted visitation rights "at any time" if
visitation was in the "best interests of the child[,]" the
Supreme Court held the statute was an unconstitutional
interference with the fundamental right of parents to rear their
children. Troxel, 530 U.S. at 67-78. The court explained that
"[t]he liberty interest at issue in this case——the interest of
parents in the care, custody, and control of their children——is
perhaps the oldest of the fundamental liberty interests
recognized by this Court." Id. at 65. The court reasoned that
"there is a presumption that fit parents act in the best
interests of their children" and providing grandparents greater
access to grandchildren, despite the decision of the parent, is
an unconstitutional interference with parental rights. Id. at
68.
¶82 Recently, courts in other jurisdictions have addressed
the same subject matter as MMSD's incursion on parental rights
in the matter before us. In Eknes-Tucker v. Marshall, No. 2:22-
cv-184-LCB, 2022 WL 1521889, at *4 (M.D. Ala. May 13, 2022), the
District Court for the Northern Division of Alabama decided that
parents, not the state, are the proper decision-makers for
medical treatment their child may receive involving gender-
identity and transgender treatment. Id. There, the parents of
transgender children challenged and sought to enjoin enforcement
of a newly-passed "Vulnerable Child Compassion and Protection
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Act" (the Act), which banned certain medical procedures used for
the treatment of gender dysphoria in minors.14
¶83 Parent plaintiffs claimed that the Act violated "their
constitutional right to direct the medical care of their
children under the Due Process Clause of the Fourteenth
Amendment." Id. at *7. In determining whether enforcement of
the Act should be enjoined during the lawsuit, the court
concluded that parents had a high likelihood of success on the
merits of their constitutional claim under the Fourteenth
Amendment. Id. The court reiterated that a "parent's right 'to
make decisions concerning the care, custody, and control of
their children' is one of 'the oldest of the fundamental liberty
interests' recognized by the Supreme Court." Id. at *7 (quoting
Troxel, 530 U.S. at 65–66). Furthermore, "[e]ncompassed within
this right is the more specific right to direct a child's
medical care." Eknes-Tucker, 2022 WL 1521889, at *7 (citing
Bendiburg v. Dempsey, 909 F.2d 463, 470 (11th Cir. 1990)
(recognizing "the right of parents to generally make decisions
concerning the treatment to be given to their children").
¶84 Against this backdrop, the court reasoned that parents
likely would succeed on the merits of their claim because the
Act "prevents Parent Plaintiffs from choosing that course of
treatment for their children by criminalizing the use of
Gender dysphoria "is a clinically diagnosed incongruence
14
between one's gender identity and assigned gender. If
untreated, gender dysphoria may cause or lead to anxiety,
depression, eating disorders, substance abuse, self-harm, and
suicide." Eknes-Tucker v. Marshall, No. 2:22-cv-184-LCB, 2022
WL 1521889, at *1 (M.D. Ala. May 13, 2022).
20
No. 2020AP1032.pdr
transitioning medications to treat gender dysphoria in minors,
even at the independent recommendation of a licensed
pediatrician." Eknes-Tucker, 2022 WL 1521889, at *7.
¶85 When a government action "directly and substantially
implicates a fit parent's fundamental liberty interest in the
care and upbringing of his or her child, [governmental action]
is subject to strict scrutiny review." Michels, 387 Wis. 2d 1,
¶22. "Ordinarily, where a fundamental liberty interest
protected by the substantive due process component of the
Fourteenth Amendment is involved, the government cannot infringe
on that right 'unless the infringement is narrowly tailored to
serve a compelling state interest.'" Johnson v. City of
Cincinnati, 310 F.3d 484, 502 (6th Cir. 2002) (quoting
Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). The MMSD
has identified no compelling state interest upon which MMSD
contends the Policies are based.
¶86 The parents renewed their request for a temporary
injunction in their Petition for Review, and they ask us to
grant them relief. The pending status of the parents' motion
before the circuit court is not a deterrent to our
superintending authority, which is grounded in our
constitutional obligation to supervise all Wisconsin courts. In
the exercise of our superintending authority and in order to
afford the administration of justice in this litigation, we
should grant the temporary injunction under the undisputed facts
and the law presented herein.
21
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¶87 I begin by noting that the granting of a temporary
injunction required the parents to show: "(1) a reasonable
probability of success on the merits; (2) a lack of an adequate
remedy at law; (3) that the movant will suffer irreparable harm
in the absence of an injunction; and (4) that a balancing of the
equities favors issuing the injunction." Wisconsin Legislature
v. Evers, No. 2020AP608-OA, unpublished order (Wis. Apr. 6,
2020) (order granting leave to commence an original action and
enjoining Executive Order No. 74); see also Kocken v. Wis.
Council 40, 2007 WI 72, ¶22, 301 Wis. 2d 266, 732 N.W.2d 828(listing requirements for injunctive relief to be a "finding a
likelihood of success on the merits, a likelihood of irreparable
harm, and an inadequate remedy at law."); Spheeris Sporting
Goods, Inc. v. Spheeris on Capitol, 157 Wis. 2d 298, 306, 459
N.W.2d 581 (Ct. App. 1990) (explaining a movant must show a
reasonable probability of success on the merits, an inadequate
remedy at law, and irreparable harm); Grootemaat, 89 Wis. 2d at
520.
¶88 The administration of justice often requires
significant judicial effort. But that is what the people of
Wisconsin elected us to provide. We are expected not to shirk
our responsibilities when hard legal disputes are presented.
This case is grounded in the contention that MMSD has usurped
fundamental parental rights, some of which relate to healthcare
decisions for their children. The administration of justice
requires that we not ignore the parents' plea for a judicial
decision, as the majority opinion has done.
22
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¶89 The parents satisfy each factor necessary to success
on their motion for a temporary injunction. First, they have
shown a strong likelihood of success on the merits of their
claim that MMSD's Policies interfere with their constitutional
right to raise their children as they think best. The lack of a
temporary injunction also keeps MMSD in charge of enabling
healthcare choices without parental consent for children who
have gender-identity issues. The constitutional presumption is
that parents will act in the best interest of their child.
Troxel, 530 U.S. at 69. Allowing a school to reassign a child's
gender, flips this constitutional presumption on its head by
assuming that parents will not act in their child's best
interest. Both the United States Constitution and the Wisconsin
Constitution support the conclusion that MMSD's Policies cannot
deprive parents of their constitutional rights without proof
that parents are unfit, a hearing, a court order, and without
according parents due process. Instead, under MMSD's explicit
guidelines, parents are affirmatively excluded from decision-
making unless their child consents.15
MMSD's Policies affirmatively hide information from
15
parents that relates to their children. For example, "School
staff shall not disclose any information that may reveal a
student's gender identity to others, including parents or
guardians and other school staff, unless legally required to do
so or unless the student has authorized such disclosure." MMSD
Policies, 9. "Staff will respect student confidentiality
throughout the investigation, be careful not to 'out' students
while communicating with family/peers, and involve the targeted
student throughout the intervention process." Id., 11. "In
MMSD with the permission of our students, we will strive to
include families along the journey to support their LGBTQ+
youth." Id., 16. "Students will be called by their affirmed
name and pronouns regardless of parent/guardian permission to
23
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¶90 Parents have the constitutional right to direct the
upbringing and education of their children. Article I, Section
1 of the Wisconsin Constitution provides fundamental protection
for that parental right. Jackson, 218 Wis. 2d at 879(explaining that "Wisconsin has traditionally accorded parents
the primary role in decisions regarding the education and
upbringing of their children."). We have interpreted Article I,
Section 1 of the Wisconsin Constitution as affording the same
protections as are provided by the Fourteenth Amendment. Mayo
v. Wis. Injured Patients & Families Comp. Fund, 2018 WI 78, ¶35,
383 Wis. 2d 1, 914 N.W.2d 678. The right of parents to decide
on the upbringing of their children has been so long established
as "beyond debate as an enduring American tradition." Yoder,
406 U.S. at 232-33.
¶91 What is occurring in Wisconsin schools has been
occurring in other schools around the country. Parents are
bringing their concerns to court, and courts around the country
have confirmed that parental constitutional rights are violated
when they are prevented from being involved in gender-identity
concerns of their children. Eknes-Tucker, 2022 WL 1521889, at
*7. Accordingly, I conclude that parents have shown a strong
likelihood of success on the merits of their claim.
¶92 Second, parents have no remedy at law. Without an
injunction to temporarily enjoin MMSD from implementing its
policies, MMDS will continue to enforce them. Parents will not
be told that their child is socially transitioning to a sex
change their name and gender in MMSD systems." Id., 18.
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No. 2020AP1032.pdr
different from that noted at birth without the child's consent,
yet social transitioning is a healthcare choice for parents to
make. Without an injunction, the parents have no way of
becoming involved in such a fundamental decision.
¶93 Third, without an injunction the parents will suffer
irreparable harm. The MMSD Policies are on-going and continue
to invade parents' constitutional right to parent their
children. Many courts consider the on-going infringement of a
constitutional right enough and require no further showing of
irreparable injury. See e.g., Awad v. Ziriax, 670 F.3d 1111,
1131 (10th Cir. 2012). We should do so as well.
¶94 Fourth, the balance of equities favors the parents,
who are ready, willing and able to parent their children. The
public interest is served by validation of parental
constitutional rights and any harm alleged by MMSD from parental
involvement in decision-making for their children runs directly
contrary to the presumption that parents act in the best
interests of their children. Troxel, 530 U.S. at 69.
Furthermore, because MMSD's Policies are carried out by school
officials who are state actors, whose conduct described in the
MMSD Policies infringes on the parents' constitutional right to
make important choices for their children, the school officials
must yield to the constitution. Gruenke v. Seip, 225 F.3d 290,
307 (3d Cir. 2000) (explaining that "[i]t is not educators, but
parents who have primary rights in the upbringing of children.
School officials have only a secondary responsibility and must
respect these rights.").
25
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¶95 The parents brought a motion for a temporary
injunction to enjoin MMSD from: (1) enabling children to
socially transition to a different gender-identity without
parental consent; (2) preventing teachers and other staff from
telling parents that their child may have gender-identity
concerns; and (3) deceiving parents by using different names and
pronouns in front of parents than are used at school. The
parents have satisfied all the necessary criteria for a
temporary injunction.
III. CONCLUSION
¶96 In conclusion, to be clear, although I address the
question of pseudonym use, the heart of this case is the
fundamental, constitutional presumption that parents have the
right to raise their children according to their beliefs of what
is in the child's best interests. Parental names are not
relevant to vindicating that constitutional right. Here, the
circuit court erred when it concluded that it could not permit
the parents to employ pseudonyms in this lawsuit. The court of
appeals erred in affirming that decision, even while noting that
the circuit court did have the power to permit the use of
pseudonyms. The majority opinion errs by concluding that there
is no authority for anonymous litigation in Wisconsin.16
¶97 Furthermore, I conclude that we can and should employ
our constitutional supervisory authority to decide this
constitutional controversy because it cries for judicial
resolution. This court, as a court of last resort, should act
16 Majority op., ¶¶15-20.
26
No. 2020AP1032.pdr
affirmatively to grant the parents' request for a temporary
injunction that enjoins MMSD from: (1) enabling children to
socially transition to a different gender-identity without
parental consent; (2) preventing teachers and other staff from
telling parents that their child may have gender-identity
concerns; and (3) deceiving parents by using different names and
pronouns in front of parents than are used at school.
¶98 The majority opinion defends abdication of its
responsibility to address parents' constitutional arguments by
attacking the dissent's support of parental rights. For the
reasons set out above, I conclude that the circuit court erred
in not granting the temporary injunction that was requested in
February of 2020. Because the majority opinion chooses not to
decide the controversy presented, I respectfully dissent.
¶99 I am authorized to state the Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice REBECCA GRASSL BRADLEY join this
dissent.
27
No. 2020AP1032.pdr
1