Stephen Joseph Wright v. Wisconsin Elections Commission

2023 WI 71SUPREME COURT OF WISCONSIN
NOTICE
This order is subject to further
editing and modification. The
final version will appear in the
bound volume of the official
reports.
No. 2023AP1412-OA
Stephen Joseph Wright, Gary Krenz, Sarah J.
Hamilton, Jean-Luc Thiffeault, Somesh Jha,
Joanne Kane, and Leah Dudley,
Petitioners,
v. FILED
Wisconsin Elections Commission; Don Millis,
OCT 6, 2023
Robert F. Spindell, Jr., Mark L. Thomsen, Ann
S. Jacobs, Marge Bostelmann, Joseph J. Samuel A. Christensen
Czarnezki, in their official capacities as Clerk of Supreme Court
Members of the Wisconsin Elections Commission; Madison, WI
and Meagan Wolfe, in her official capacity as
Administrator of the Wisconsin Elections
Commission,
Respondents.
The Court entered the following order on October 6, 2023:
On August 4, 2023, petitioners Stephen Joseph Wright, et al.,
seven Wisconsin voters, filed a petition for leave to commence an
original action under Wis. Stat. § (Rule) 809.70, together with a
supporting memorandum and an appendix.
On August 22, 2023, the named respondents in this matter, the
Wisconsin Elections Commission, its members, and its
administrator, filed a response taking no position on the merits
of the petition.
On August 22, 2023, the Wisconsin Legislature filed a motion
to intervene as a respondent. On September 5, 2023, the
petitioners in this case filed a letter response stating that they
No. 2023AP1412-OA
do not object to the intervention motion. No other response or
opposition to the motion to intervene has been filed.
On August 22, 2023, the Wisconsin Legislature filed a motion
for leave to file an amicus brief regarding the petition for
original action. No response or opposition to this motion to file
an amicus brief has been filed.
The court has considered the filings in this case.
Accordingly,
IT IS ORDERED that the motion for leave to file a non-party
brief, amici curiae, is granted, and the accompanying brief is
accepted for filing;
IT IS FURTHER ORDERED that the petition for leave to commence
an original action is denied; and
IT IS FURTHER ORDERED that the Wisconsin Legislature's motion
to intervene is denied as moot.
ANNETTE KINGSLAND ZIEGLER, C.J. (concurring). This
original action is nothing more than a motion for reconsideration
of this court's decision in Johnson v. Wisconsin Elections
Commission, 2022 WI 19, 401 Wis. 2d 198, 972 N.W.2d 559 ("Johnson
III"), and appears to have been filed only because of a change in
the court's membership. Where does this cycle end? Must this
court also allow additional future parties to simply sit this
litigation cycle out and come forward next court term—or after the
next court election—and present already litigated claims again?
What is to stop any party dissatisfied with the outcome here from
carrying out challenges ad infinitum, each time from a slightly
different angle, until their desired outcome is reached? This
litigation chips away at the public's faith in the judiciary as an
independent, impartial institution, undermines foundational
judicial principles such as stare decisis, and casts a hyper-
partisan shadow of judicial bias over the decisions of this court.
Today, my colleagues grant one original action petition and
deny another. Specifically, four members of this court vote to
grant Clarke v. Wisconsin Elections Commission, No. 2023AP1399-
OA, and deny Wright v. Wisconsin Elections Commission, No.
2023AP1412-OA. I concur in Wright and dissent in Clarke because
we should not accept either of these cases. Our court just decided
redistricting last year in Johnson III. Redistricting should not
be an annual event. Redistricting is a process that, under our
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No. 2023AP1412-OA
state constitution, is only supposed to occur once every decade.1
However, redistricting was required by this court nearly two years
ago because the Governor vetoed the maps drawn by the Legislature,
creating an impasse. Absent court action, Wisconsin would have
been in a constitutional crisis: Wisconsin would have had no maps
in place to conduct state and federal elections. Thus, the court,
as the final arbiter, was required to act. We clearly are not in
that constitutional predicament today.
The congressional map selected by the court was submitted by
Democrats, specifically Governor Evers. The state legislative
maps ultimately selected by the court were submitted by
Republicans, specifically the Wisconsin Legislature. However, the
selection of the current state legislative maps occurred only after
the United States Supreme Court summarily reversed my colleagues'
original selection of Governor Evers' state legislative maps
because the Governor’s maps violated the Voting Rights Act.
Johnson v. Wis. Elections Comm'n, 2022 WI 14, 400 Wis. 2d 626, 971
N.W.2d 402 ("Johnson II"), summarily rev'd sub. nom. Wis.
Legislature v. Wis. Elections Comm'n, 595 U.S. 398 (2022) (per
curiam). The issues presented in these original actions have
already been decided by this court. The court, acting within its
limited role to "answer legal questions," adopted maps that it
decided were constitutional as a judicial remedy for an
undisputedly unconstitutional situation (the previous district
maps no longer matched the geographic distribution of Wisconsin's
citizens). This judicial remedy of court-adopted maps stands for
the next ten years, absent the enactment of new constitutionally
compliant maps by the Legislature and the Governor.
I dissent to the order granting the original action petition
filed in Clarke because it appears to be evidence of a partisan
and political, rather than a reasoned and restrained, approach,
and thus departs from the constitutional role of the judiciary.
Some may prefer that other maps be drawn. And now, it seems, there
is a pre-ordained plan to accomplish that goal. However, I urge my
colleagues to exercise judicial restraint here rather than give in
to the temptation to exercise raw, political, partisan power.
1 "At its first session after each enumeration made by the
authority of the United States, the legislature shall apportion
and district anew the members of the senate and assembly, according
to the number of inhabitants." Wis. Const. art. IV, § 3.
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In granting Clarke, four of my colleagues accept only two of
the five issues presented.2 Those same colleagues add two
additional questions to the list of questions to be answered in
briefing, two additional questions that are, at best, curious.3
Why is this? We do not know. These orders are devoid of any
stated rationale. Hiding their rationale from the public is far
from being transparent and accountable. The Clarke petitioners
presented these five issues:
1. Whether the state legislative redistricting
plans proposed by the Legislature and imposed by this
Court in [Johnson III], are extreme partisan
gerrymanders that violate Article I, Section 1 of the
Wisconsin Constitution’s guarantee of equal protection
under law; and whether this cause of action is
justiciable in Wisconsin courts.
2. Whether the state legislative redistricting
plans proposed by the Legislature and imposed by this
Court in Johnson III are extreme partisan gerrymanders
that retaliate against voters based on their viewpoint
and exercise of free speech and abridge the ability of
voters with disfavored political views to associate with
2 The petitioners in Clarke and in Wright raise almost
precisely the same issues and ask for precisely the same relief.
Why not accept both cases, consolidate them, or hold one in
abeyance? In certain respects, Wright has more complete pleadings.
3 The court majority has added the following questions to be
answered in briefing:
If the court rules that Wisconsin's existing state
legislative maps violate the Wisconsin Constitution for
either or both of these reasons and the legislature and
the governor then fail to adopt state legislative maps
that comply with the Wisconsin Constitution, what
standards should guide the court in imposing a remedy
for the constitutional violation(s)?; and
What fact-finding, if any, will be required if the
court determines there is a constitutional violation
based on the contiguity clauses and/or the separation of
powers doctrine and the court is required to craft a
remedy for the violation? If fact-finding will be
required, what process should be used to resolve
questions of fact?
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No. 2023AP1412-OA
others to advance their political beliefs in violation
of Article I, Sections 3 and 4 of the Wisconsin
Constitution; and whether these causes of action are
justiciable in Wisconsin courts.
3. Whether the state legislative redistricting
plans proposed by the Legislature and imposed by this
Court in Johnson III are extreme partisan gerrymanders
that fail to "adhere[] to justice, moderation,
temperance, frugality, and virtue, . . . [and]
fundamental principles" in violation of Article I,
Section 22 of the Wisconsin Constitution; and whether
this cause of action is justiciable in Wisconsin courts.
4. Whether the state legislative redistricting
plans proposed by the Legislature and imposed by this
Court in Johnson III violate the requirement of Article
IV, Sections 4 and 5 of the Wisconsin Constitution that
legislators be elected from districts consisting of
"contiguous territory."
5. Whether the state legislative redistricting
plans proposed by the Legislature and imposed by this
Court in Johnson III violate the separation-of-powers
principle inherent in the Constitution’s division of
legislative, executive, and judicial power by usurping
the Governor’s core constitutional power to veto
legislation and the Legislature’s core constitutional
power to override such a veto.
Four members of this court seemingly attempt to evade several
fatal flaws by accepting only two of the five issues presented,
namely, the issues relating to contiguity and separation of powers.
I suspect the court's focus will be on contiguity even though that
issue was already considered and decided in the Johnson litigation.
Johnson III, 401 Wis. 2d 198, ¶70 ("The Legislature has satisfied
the remainder of Wisconsin's constitutional requirements. The
assembly districts are contiguous and sufficiently compact.").
Accepting this case primarily, if not solely on contiguity, leads
one to conclude that four of my colleagues may already know the
result they wish to obtain. Moreover, one of the issues added by
the court has already been answered in the Johnson litigation with
the court's unambiguous conclusion that the "least change"
standard applies. Johnson v. Wis. Elections Comm'n, 2021 WI 87,
¶¶64-79, 399 Wis. 2d 623, 967 N.W.2d 469 ("Johnson I"). The second
added issue regarding fact-finding is not needed for the questions
of law presented in the two accepted issues, but if fact-finding
were somehow necessary, which is quite unclear, we are not a fact-
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No. 2023AP1412-OA
finding court. The decision to accept the original action petition
in Clarke is a travesty which disregards our very recently decided
Johnson litigation and completely ignores longstanding, sound
legal principles and the precedent that binds the court.
Do my colleagues refuse to accept the other issues or the
petition in Wright because they know this court has already decided
these matters? Or is it because most of the petitioners in Wright
were allowed to intervene in the Johnson litigation? Typically,
this court accepts all issues for review before determining which
of those issues are necessary to resolve the case. I suspect my
four colleagues may have tried to narrow the issues at the outset
to be able to better achieve the pre-determined outcome they
desire. But will the remedy they seek invoke the other issues not
accepted for review, missing the benefit of briefing or argument?
Petitioners appear to be raising the contiguity argument as a means
to indirectly re-litigate the already litigated and decided issues
of political fairness and political gerrymandering. But, the four
in the majority did not accept those issues so they are not before
the court. This court is asked to consider "partisan fairness" in
overturning the current apportionment maps, as the parties claim
that "the current legislative maps are extreme partisan
gerrymanders." But these issues are not before the court, and
this court already addressed the issue of partisan fairness in
Johnson I, determining that it was not the court's role to answer
political questions such as claims of partisan fairness, but only
to answer "legal" questions such as whether the proposed maps
"satisfy all constitutional and statutory requirements". Johnson
I, 399 Wis. 2d 623, ¶4. As these issues have already been
expressly decided, we should not be resolving them again here.
Perhaps another answer why four members of this court would
limit its selection of issues to contiguity and separation of
powers could be an attempt to dodge appellate review. When four
members of the judicial branch decide they also serve as members
of the legislative and executive branches, should they not at least
subject themselves to further appellate scrutiny? Yet, the limited
issues the four justices accept seem to seek evasion of any such
scrutiny. However, any remedy imposed might nonetheless be subject
to review. Typically, we take all the issues presented even if
the court does not need to decide them because at its inception,
we do not know the matter well enough. We need extensive legal
research, briefing and argument. This time around seems
different: it seems the four justices find that standard
procedure unnecessary, as they already appear to know they do not
need to fully research and hear all of the issues and arguments
presented. Instead, it seems the four justices only accept the
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No. 2023AP1412-OA
two questions of law in order to avoid having the case proceed
through traditional fact finding at the trial court.
Notably, these justices vociferously dissented when the court
decided Johnson III, a redistricting action, last year. They
primarily objected because there was no fact-finding. Johnson
III, 401 Wis. 2d 198, ¶161 (Karofsky, J., dissenting). This case,
with all of its issues, could have proceeded and facts could have
been fully developed in the courts below, but since it now appears
that they have changed their view and abandoned their objection
once they became a majority of the court, perhaps a thorough
process is not what they now desire. It is worth wondering whether
this case would withstand a full vetting based upon developed facts
and law. Unlike the Johnson litigation, where the court was
required to act within a short time frame and remedy a
constitutional violation by adopting new maps, these original
actions do not pose a situation where the state is without
constitutionally compliant maps absent court action. There is no
urgency to act with such haste and without a thorough vetting. It
is also not urgent to act before the Legislature has decided
whether they should proceed with implementing a plan which mirrors
Iowa's.4 Why does the court wish to act with such haste when the
Constitution clearly vests redistricting powers within the
province of the Legislature and Governor? This hastiness also
portends that this case is decided almost before it has begun.
All of this question-raising behavior seems to demonstrate
not prudential judicial reasoning, but rather a sheer will to
expedite a preconceived determination to ensure that all maps are
favorable to a particular constituency. When a court already knows
the answer, the procedures in advance of that decision are nothing
more than judicial window dressing. This order seems to bear the
hallmarks of just that.
Far from being "judicial window-dressing," the court's
reliance on foundational legal principles also supports the fact
4 Claire Reid, Robin Vos proposed 'Iowa-style' redistricting
for Wisconsin. What does that mean? Milwaukee Journal Sentinel,
(Sept. 13, 2023);
https://www.jsonline.com/story/news/politics/2023/09/13/wisconsi
n-redistricting-what-is-iowa-style-model-proposed-by-
vos/70840624007/; Andrew Bahl, Is Iowa-style redistricting in
Wisconsin's future? The Cap Times, (Sept. 13, 2023),
https://captimes.com/news/is-iowa-style-redistricting-in-
wisconsin-s-future/article_49c8e042-526f-11ee-ad2f-
2fdd42d8bb17.html
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that both petitions should be denied because the Johnson III
decision is the law. Under the doctrines of stare decisis,5 issue
preclusion,6 claim preclusion,7 and the law of the case,8 the
Johnson III decision stands. Cases that have been decided with
finality are not re-litigated. During the Johnson litigation
addressing this issue of redistricting maps, we liberally
permitted any and all parties to intervene in the case. We then
5 The doctrine of stare decisis bars parties from seeking to
overrule recently decided cases such as Johnson III. See State v.
Alan Johnson, 2023 WI 39, ¶19, 407 Wis. 2d 195, 990 N.W.2d 174("[W]e require a special justification in order to overturn our
precedent."); Hinrichs v. DOW Chemical Co., 2020 WI 2, ¶¶66-67,
389 Wis. 2d 669, 937 N.W.2d 37 ("Second, the doctrine of stare
decisis militates against the precipitous change in the law that
Dow seeks. Stare decisis is fundamental to the rule of law.
Indeed, '[t]his court follows the doctrine of stare decisis
scrupulously because of our abiding respect for the rule of law.'
'Fidelity to precedent ensures that existing law will not be
abandoned lightly. When existing law is open to revision in every
case, deciding cases becomes a mere exercise in judicial will,
with arbitrary and unpredictable results.' Accordingly, any
departure from stare decisis requires ‘special justification.'"
(citations and footnotes omitted)).
6 The doctrine of issue preclusion clearly bars the parties
from re-litigating what was already decided in the Johnson
litigation. See Aldrich v. LIRC, 2012 WI 53, ¶88, 341 Wis. 2d 36,
814 N.W.2d 433 ("The doctrine of issue preclusion . . . is
designed to limit the re-litigation of issues that have been
actually litigated in a previous action.")
7 The doctrine of claim preclusion bars parties from bringing
claims now which could have been brought in the Johnson litigation.
See Dostal v. Strand, 2023 WI 6, ¶24, 405 Wis. 2d 572, 948
N.W.2d 382 ("[C]laim preclusion . . . extends to all claims that
either were or could have been asserted in the previous case.").
8 The doctrine of law of the case, in the interest of there
being finality in court decisions, binds the parties in any
subsequent retrial or appeal involving the same case and
substantially the same facts as was addressed in the Johnson
litigation. See State v. Moeck, 2005 WI 57, ¶18, 280 Wis. 2d 277,
695 N.W.2d 783 (The law of the case doctrine is a "longstanding
rule that a decision on a legal issue by an appellate court
establishes the law of the case, which must be followed in all
subsequent proceedings in the trial court or on later appeal.").
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"granted intervention to all parties that sought it." Johnson II,
400 Wis. 2d 626, ¶2. While the respondents were parties to the
previous litigation, the Clarke petitioners apparently chose not
to participate or at a minimum made no attempt to formally do so.9
The law requires them to live with that decision. Reframing
arguments or attempting new fact-finding nonexistent in the
previous litigation but involving the same maps should not be
allowed to prevail. Were that an acceptable tactic, there would
be no finality in the law or litigation. "If at first you don't
succeed, try, try again" may be a good maxim for children, but
that has never been the case for fully vetted, fully litigated and
decided cases. If these parties believed that these considerations
were fundamental to map determinations, the time for participation
was during the Johnson litigation. That time has now passed. This
9 Notably, although the Clarke petitioners were not themselves
parties in the Johnson litigation, they are represented in this
case by many of the same law firms and lawyers who represented
other parties in Johnson. Specifically, Black Leaders Organizing
for Communities, Voces de la Frontera, League of Women Voters of
Wisconsin, Cindy Fallona, Lauren Stephenson, and Rebecca Alwin
were parties in the Johnson litigation and were represented by Law
Forward, Inc.; Stafford Rosenbaum LLP; and the Campaign Legal
Center. Those same law firms, with only the addition of a few
additional out-of-state lawyers, now represent the petitioners in
the Clarke case, creating the appearance that the lawyers have
simply substituted a new group of parties to continue the
redistricting litigation they could not resolve to their
satisfaction in the Johnson litigation.
In addition, the seven Wright petitioners include five
individuals who already participated in the Johnson litigation as
parties—a group referred to in the Johnson decisions as the
"Citizen Mathematicians and Scientists": Stephen Joseph Wright
(Chair of the Department of Computer Sciences at the University
Wisconsin-Madison); Gary Krenz (Professor Emeritus of Mathematical
and Statistical Sciences and Adjunct Professor of Computer Science
at Marquette University); Sarah J. Hamilton (Associate Professor
of Mathematics at Marquette University and an Assistant Adjunct
Professor at the Medical College of Wisconsin); Jean-Luc
Thiffeault (Chair of the Department of Mathematics and a Professor
of Applied Mathematics at the University Wisconsin-Madison); and
Somesh Jha (Professor of Computer Sciences at the University
Wisconsin-Madison). The Wright petitioners are represented by the
same attorneys who represented the Citizen Mathematicians and
Scientists in the Johnson litigation.
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No. 2023AP1412-OA
court should not re-litigate the exact same maps one year later,
with no intervening change in the law or facts presented. At most,
we see a motion for reconsideration; but in this case, such a
motion is long since time barred. Wis. Stat. § (Rule) 809.64 ("A
party may seek reconsideration of the judgment or opinion of the
supreme court by filing a motion under s. 809.14 for
reconsideration within 20 days after the date of the decision of
the supreme court."). There is no other legal basis or procedural
mechanism for this court to once again re-examine these maps.
Moreover, the petitioners' claim that the court's decision in
Johnson III violated separation of powers does not seem to warrant
serious review. In the Johnson litigation, there had to be new
redistricting maps; the maps enacted following the 2010 census
were undeniably unconstitutional following the 2020 United States
Census. The Legislature and the Governor, the branches
constitutionally responsible for redistricting, exercised their
constitutional authority in a way that resulted in an impasse.
Since the impasse meant that there was a lack of constitutionally
required maps in place prior to holding the next partisan election,
the judicial branch was forced to intervene, albeit in a limited
fashion. We were forced to proceed with a judicial proceeding in
the Johnson litigation to select constitutionally compliant maps
as a remedy for the ongoing constitutional violation.
It will be interesting to see how the separation-of-powers
argument is presented. Seemingly, the argument is that by adopting
legislative maps submitted by one party (i.e., the Legislature),
this court violated the separation of powers because the Governor
had previously vetoed those maps as part of the legislative
process. Would not the argument that the court violated the
separation of powers by "judicially overriding" the Governor's
veto of those maps also require finding that this court violated
separation of powers by choosing the Governor's proposed
congressional maps over the Legislature's proposed congressional
maps? Why does that scenario not also infringe on the
Legislature's constitutional authority to enact new district maps?
Indeed, the congressional maps proposed by the Governor and adopted
by this court in Johnson II are still in effect. If the
petitioners' separation-of-powers claims have legal merit, should
we also be reviewing the Governor's congressional maps to address
that same violation? We shall see. My guess is that the majority
will not say much about separation of powers.
The petitioners advance the proposition that Clarke raises
issues no different than cases recently decided from other states.
No other state in the nation is doing or has done what the
petitioners ask this court to do. None of those cases align with
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No. 2023AP1412-OA
the procedural posture of the Johnson litigation and this new case.
None of the other state cases the parties cited10 involve asking a
state supreme court to reconsider maps that court adopted as
constitutional just one year prior. Moreover, Wisconsin, unlike
the states upon which the parties rely, constitutionally vests
both its legislature and its governor with the constitutional duty
to determine redistricting.11 Wisconsin's unique procedural events
10Szeliga v. Lamone, C-02-CV-21-001816, 2022 WL 2132194 (Md.
Cir. Ct. Mar. 25, 2022); League of Women Voters of Utah v. Utah
Legislature, No. 220901712 (Utah 3d Dist. Ct. Nov. 22, 2022);
Republican Party of New Mexico v. Oliver, No. S-1-SC-39481 (N.M.
July 5, 2023); Avalos v. Davidson, No. 01CV2897, 2002 WL 1895406(D. Colo. Jan. 25, 2002); Balderas v. Texas, No. 6:01CV158, 2001
WL 36403750 (E.D. Tex. 2001).
11In the states the parties cited to, the individuals
constitutionally responsible for redistricting are: Maryland: the
governor (M.D. Const. art. III, §V); Utah: Utah Legislative
Redistricting Committee and the Utah Independent Redistricting
Commission (Utah Const. art. IX, §1); New Mexico: the legislature
(N.M. Const. art. VI, § 16); Colorado: independent commission as
of 2018 (Colo. Const. art. V, §§ 44-48); and Texas: the
legislature, and if they fail to do so, the legislative
redistricting board (Tex. Const. art. III, §28).
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in the Johnson litigation have not been replicated in these other
states.12
All of these factors, when considered together, seem to lead
to the reasonable conclusion that accepting this original action
is a purely political action to achieve a desired outcome. Despite
this court having just declared that the existing maps are
constitutional, four members of this court nonetheless accept the
original action petition in Clarke. At the same time, four members
of this court attempt to evade judicial review by selecting only
two of the five issues presented. These are questions of law, yet
those justices nonetheless inquire about fact finding and also ask
a question which telegraphs that they are poised to overturn the
"least change" determination made in Johnson I. 399 Wis. 2d 623,
¶¶64-79. Despite this evasive framing of the case, Caperton
12In Maryland, the suit challenged a legislative-drawn map
enacted over gubernatorial veto: the court ordered the legislature
to adopt a revised map, which the legislature did, and which the
governor then subsequently signed into law. In Utah, the suit
arose after the legislature adopted its own map over the three
maps created and proposed by the Independent Redistricting
Committee: the trial court declined to dismiss the plaintiff's
partisan gerrymandering claims and the Utah State Supreme Court
heard oral arguments in July 2023. The New Mexico Supreme Court,
unlike the Wisconsin Supreme Court, determined that partisan
gerrymandering claims were in fact justiciable. Whereas the
Wisconsin Supreme Court adopted a map following a political impasse
between its legislature and governor, in Colorado, the State
District Court drew its own congressional map following the General
Assembly's failure to pass a congressional redistricting plan in
time for the 2002 elections. After the Republican-led legislature
attempted to replace that court-drawn map, the Colorado Supreme
Court ruled that the constitution allowed only one round of
congressional redistricting after each 10-year census. And
finally, in Texas, after the state failed to produce a
congressional redistricting plan, the federal district court drew
its own redistricting plan according to various neutral
districting factors. In none of these other states did their state
supreme court draw the maps or overturn maps which they had adopted
as a judicial remedy a year prior. See supra n.10.
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nonetheless looms large and will remain a cloud over this outwardly
handpicked, predetermined, and preordained litigation.13
Finally, the Wisconsin Elections Commission does not seem to
be a party that is taking a position. The petitioners' requested
remedy affects 17 senators in odd-numbered districts. These
senators are named parties in Clarke. But each Senate district
has within it three Assembly seats, so there are potentially far-
reaching ramifications for seats in the Assembly. Why not name
those in the Assembly as well? If the result of the Johnson III
maps being declared unconstitutional is that senators in odd-
numbered districts lack authority to hold their seats, then does
the same lack of authority apply to members of the Assembly?
Upon closer inspection, this original action appears to be
nothing more than a thinly-veiled motion for reconsideration of
this court's decision in Johnson III. This court should not accept
the petition in Clarke. In granting the petition in Clarke, four
members of this court have chosen to chip away at the public's
faith in the judiciary as an independent impartial institution,
undermine foundational judicial principles such as stare decisis,
and cast a hyper-partisan shadow of judicial bias over the
decisions of this court. Such short-sighted behavior demonstrates
the court majority's sheer will to expedite a preconceived outcome
for a particular constituency. This abandonment of their judicial
oath is disappointing. I concur.
I am authorized to state that Justice REBECCA GRASSL BRADLEY
joins this concurrence.
13The public's faith in the judiciary as an independent,
impartial institution is upended when parties are allowed to
"[pick] the judge in [their] own case." Williams v. Pennsylvania,
579 U.S. 1, 8-9 (2016). Where parties are allowed to pick who
presides over their cases, a specter of judicial bias violates
parties' due process rights and invalidates the outcome. Parties
can give the impression that they have impermissibly "picked the
judge in their own case" through donating overwhelmingly to the
campaign of a judge they hope to have preside over their case.
See Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).
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