Rebecca Clarke v. Wisconsin Elections Commission

2023 WI 70SUPREME 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. 2023AP1399-OA
Rebecca Clarke, Ruben Anthony, Terry Dawson,
Dana Glasstein, Ann Groves-Lloyd, Carl Hujet,
Jerry Iverson, Tia Johnson, Angie Kirst, Selika
Lawton, Fabian Maldonado, Annemarie McClellan,
James McNett, Brittany Muriello, Ela Joosten
(Pari) Schils, Nathaniel Slack, Mary Smith-
Johnson, Denise Sweet and Gabrielle Young,
Petitioners,
v.
Wisconsin Elections Commission, Don Millis,
Robert F. Spindell, Jr., Mark L. Thomsen, Ann FILED
S. Jacobs, Marge Bostelmann, Joseph J.
Czarnezki in their official capacities as
OCT 6, 2023
Members of the Wisconsin Election Commission;,
Meagan Wolfe in her official capacity as the Samuel A. Christensen
Administrator of the Wisconsin Elections Clerk of Supreme Court
Commission; Andre Jacque, Tim Carpenter, Rob Madison, WI
Hutton, Chris Larson, Devin LeMahieu, Stephen
L. Nass, John Jagler, Mark Spreitzer, Howard
Marklein, Rachael Cabral-Guevara, Van H.
Wanggaard, Jesse L. James, Romaine Robert
Quinn, Dianne H. Hesselbein, Cory Tomczyk, Jeff
Smith and Chris Kapenga in their official
capacities as Members of the Wisconsin Senate,
Respondents,
Wisconsin Legislature,
Intervenor-Respondent.
The Court entered the following order on October 6, 2023:
No. 2023AP1399-OA
On August 2, 2023, petitioners Rebecca Clarke, et al., 19
Wisconsin voters, filed a petition for leave to commence an
original action under Wis. Stat. § (Rule) 809.70, together with a
supporting memorandum, an appendix, and a motion for a scheduling
order. The petitioners allege that the state legislative districts
adopted by this court in Johnson v. Wisconsin Elections Comm'n,
2022 WI 19, 401 Wis. 2d 198, 972 N.W.2d 559 (Johnson III)—
including the voters' districts—are an unconstitutional extreme
partisan gerrymander; violate Article IV, Sections 4 and 5 of the
Wisconsin Constitution because the districts do not consist of
"contiguous territory;" and violate the Wisconsin Constitution's
separation-of-powers doctrine. The petitioners ask that we assume
original jurisdiction and, after resolving certain legal
questions, declare the existing state legislative districts
unconstitutional.
On August 22, 2023, the named respondents in this matter,
Wisconsin Elections Commission, et al., filed responses to the
original action petition. Several of the respondents, a number of
members of the State Senate, oppose the petition, arguing that
petitioners' claims are foreclosed by this court's decision in
Johnson III and are an unduly delayed collateral attack on that
decision. Several additional respondents, also members of the
State Senate, support the petition, arguing that petitioners'
claims are meritorious. For their part, respondents Wisconsin
Elections Commission, its members, and its administrator, take no
position on the merits of the petition.
On August 22, 2023, the Wisconsin Legislature filed a motion
to intervene as a respondent. No response or opposition to this
motion to intervene has been filed.
On August 22, 2023, the Wisconsin Legislature and Professor
Charles Fried filed motions for leave to file amicus briefs
regarding the petition for original action. No response or
opposition to these motions to file amicus briefs has been filed.
This court has long deemed redistricting challenges a proper
subject for the court's exercise of its original jurisdiction.
See, e.g., Jensen v. Wisconsin Elections Board, 2002 WI 13, ¶17,
249 Wis. 2d 706, 639 N.W.2d 537 ("there is no question" that
redistricting actions warrant "this court's original jurisdiction;
any reapportionment or redistricting case is, by definition,
publici juris, implicating the sovereign rights of the people of
this state."). This includes challenges to existing district maps.
See State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 558, 126
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No. 2023AP1399-OA
N.W.2d 551 (1964) (resolving challenges to a legislatively enacted
map through an original action).
Nevertheless, after considering all of the filings, we
decline to grant leave to commence an original action with respect
to Issues 1-3 presented in the petition. Although these issues
raise important and unresolved questions of statewide
significance, the need for extensive fact-finding (if not a full-
scale trial) counsels against addressing them at this time. See
Jensen, 249 Wis. 2d 706, ¶20. Additionally, the petitioners
acknowledge that a decision on Issues 4 and 5 set forth in their
petition "could render it unnecessary" to decide Issues 1-3.
Accordingly,
IT IS ORDERED that the motions for leave to file non-party
briefs, amici curiae, are granted, and the accompanying briefs are
accepted for filing;
IT IS FURTHER ORDERED that the petition for leave to commence
an original action is granted solely as to Issues 4 and 5 set forth
in the petition;
IT IS FURTHER ORDERED that the motion for scheduling order is
granted to the extent that this order sets forth a schedule for
certain proceedings in this case;
IT IS FURTHER ORDERED that the Wisconsin Legislature's motion
to intervene is granted. The Legislature's motion is timely; it
claims an interest relating to the subject of the action; it is
situated such that the disposition of the action may, as a
practical matter, impair or impede its ability to protect that
interest; and it has demonstrated that its interests are not
adequately represented by the existing parties. See Wis. Stat.
§ 803.09;
IT IS FURTHER ORDERED that any additional party wishing to
intervene in this case must file a motion to intervene, together
with a supporting memorandum addressing the requirements of Wis.
Stat. § (Rule) 803.09, by October 10, 2023;
IT IS FURTHER ORDERED that the parties may each file a single
response to all motions to intervene no later than 4:00 p.m. on
October 12, 2023. Each response shall not exceed 25 pages if a
monospaced font is used or 5,500 words if a proportional serif
font is used;
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No. 2023AP1399-OA
IT IS FURTHER ORDERED that the parties and the proposed
intervenors whose motion to intervene has not yet been decided
shall file simultaneous briefs addressing only the following
questions:
1.) Do the existing state legislative maps violate the
contiguity requirements contained in Article IV, Sections
4 and 5 of the Wisconsin Constitution?
2.) Did the adoption of the existing state legislative maps
violate the Wisconsin Constitution's separation of powers?
3.) 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)?
4.) 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?
IT IS FURTHER ORDERED that each party and each proposed
intervenor whose motion to intervene has not yet been decided shall
file an initial brief addressing the four questions set forth above
on or before 12:00 noon on October 16, 2023, or a statement that
no brief will be filed. Each party and each proposed intervenor
whose motion to intervene has not yet been decided may file a
response brief on or before 12:00 noon on October 30, 2023. The
form, length, pagination, appendix, and certification requirements
shall be the same as those governing standard appellate briefing
in this court for a brief-in-chief and a response brief. See Wis.
Stat. § (Rule) 809.19;
IT IS FURTHER ORDERED that any non-party that wishes to file
a non-party brief amicus curiae addressing the four questions set
forth above must file a motion for leave of the court to file a
non-party brief pursuant to the requirements of Wis. Stat. § (Rule)
809.19(7). Non-parties should also consult this court's Internal
Operating Procedure concerning the nature of non-parties who may
be granted leave to file a non-party brief. A proposed non-party
brief must accompany the motion for leave to file it. Any proposed
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No. 2023AP1399-OA
non-party brief shall not exceed 20 pages if a monospaced font is
used or 4,400 words if a proportional serif font is used. Any
motion for leave with the proposed non-party brief attached shall
be filed no later than 12:00 noon on November 8, 2023. Any
submission by a non-party that does not comply with Wis. Stat.
§ (Rule) 809.19(7) and any proposed non-party brief for which the
court does not grant leave will not be considered by the court;
IT IS FURTHER ORDERED that unless ordered otherwise by a
majority of the court, the court will hear oral argument in this
matter on Tuesday, November 21, 2023, beginning at 9:45 a.m., in
the Supreme Court Hearing Room, 2nd Floor, East Wing of the State
Capitol, Madison, Wisconsin. Each party will have 20 minutes of
initial oral argument time and an additional 10 minutes for
rebuttal. Each party shall have back-up counsel available to argue
in the event that the designated attorney(s) cannot appear and
present oral argument for any reason on the scheduled oral argument
date. Further information regarding oral argument will be provided
in subsequent communications from the court or its clerk.
IT IS FURTHER ORDERED that if any party does not wish to
participate in oral argument, that party shall file a notice to
that effect no later than 12:00 noon on Tuesday, November 7, 2023;
IT IS FURTHER ORDERED that requests for additional briefing
or extensions will be viewed with disfavor; and
IT IS FURTHER ORDERED that all Wisconsin attorneys
participating in this case must each opt in to this case in the
appellate court electronic filing system. All Wisconsin attorneys
who are not already opted in for this case are hereby ordered to
do so as soon as possible and no later than five days from the
date of this order.
ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). 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
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No. 2023AP1399-OA
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
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.
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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No. 2023AP1399-OA
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.
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
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. 2023AP1399-OA
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
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
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No. 2023AP1399-OA
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-
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
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No. 2023AP1399-OA
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
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.
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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No. 2023AP1399-OA
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
that both petitions should be denied because the Johnson III
decision is the law. Under the doctrines of stare decisis,5 issue
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)).
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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
"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
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.").
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.
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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
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
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. 2023AP1399-OA
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
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
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).
14
No. 2023AP1399-OA
to determine redistricting.11 Wisconsin's unique procedural events
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
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).
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.
15
No. 2023AP1399-OA
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
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 dissent.
I am authorized to state that Justices REBECCA GRASSL BRADLEY
and BRIAN HAGEDORN join this dissent.
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).
16
No. 2023AP1399-OA
REBECCA GRASSL BRADLEY, J. (dissenting).
"Herald, read the accusation!" said the King.
On this the White Rabbit blew three blasts on the
trumpet, and then unrolled the parchment scroll, and
read as follows:—
"The Queen of Hearts, she made some tarts,
All on a summer day:
The Knave of Hearts, he stole those tarts,
And took them quite away!"
"Consider your verdict," the King said to the jury.
"Not yet, not yet!" the Rabbit hastily interrupted.
"There's a great deal to come before that!"
***
"No, no!" said the Queen. "Sentence first—verdict
afterwards."
Lewis Carroll, Alice's Adventures in Wonderland 165-67, 187
(1865).
A great deal came before the majority's decision to grant the
petitioners this additional kick at the cat. Ironically, an
election for the office of supreme court justice makes possible
this purely political proceeding—unconvincingly masquerading as a
"judicial" one. Janet Protasiewicz and Jill Karofsky delivered
their sentence first—"Rigged!"—and will form a majority with Ann
Walsh Bradley and Rebecca Dallet to shift legislative power from
Republicans and bestow an electoral advantage on Democrats,
fulfilling one of Protasiewicz's many promises to the principal
funder of her campaign, the Democratic Party of Wisconsin. At
least the King in Alice's Adventures in Wonderland wouldn't have
wasted time on a show trial contaminated with copious conflicts of
interest. Protasiewicz campaigned on "restoring democracy"14 and
the other members of the majority regularly rail against imaginary
threats to democracy. See, e.g., Teigen v. WEC, 2022 WI 64, ¶208,
14 Janet Protasiewicz (@janetforjustice), Twitter (Mar. 7,
2023, 2:21 PM)
https://twitter.com/janetforjustice/status/1633201166929592320?c
xt=HHwWgIC8md3zpaotAAAA.
17
No. 2023AP1399-OA
403 Wis. 2d 607, 725, 976 N.W.2d 519, 577 (Ann Walsh Bradley, J.,
dissenting), reconsideration denied, 2022 WI 104. It is hard to
imagine a more brazen assault on democracy than removing duly
elected senators from office by judicial fiat.
I. Down the Rabbit Hole
Petitioners are late to the redistricting tea party, which
started in 2021 and concluded in 2022. After each decennial census
conducted under the United States Constitution, the Wisconsin
Constitution requires the legislature "to apportion and district
anew the members of the senate and assembly, according to the
number of inhabitants." Wis. Const. art. IV, § 3; see Johnson v.
WEC, 2021 WI 87, ¶1, 399 Wis. 2d 623, 967 N.W.2d 469 (Johnson I).
In 2021, the Wisconsin Legislature drew and passed new maps, but
the governor vetoed them. Johnson I, 399 Wis. 2d 623, ¶2. The
then-existing maps, enacted into law in 2011, were
unconstitutional because shifts in Wisconsin's population
"disturbed the constitutionally guaranteed equality of the
people's representation in the state legislature." Id. In the
face of political impasse, this court was asked to provide a remedy
for that inequality. Id. We did so, initially selecting the
legislative maps proposed by Governor Evers. See Johnson v. WEC,
2022 WI 14, ¶10, 400 Wis. 2d 626, 971 N.W.2d 402 (Johnson II).
The United States Supreme Court summarily reversed because a
majority of this court improperly applied the constitutional
guarantee of equal protection in its selection of the Governor's
maps, which sorted voters based on race without constitutionally
permissible justification. Wis. Legislature v. Wis. Elections
Comm'n, 595 U.S. 398, 406 (2022) (per curiam).15 On remand, this
court selected maps drawn by the Wisconsin Legislature. See
Johnson v. WEC, 2022 WI 19, ¶3, 401 Wis. 2d 198, 972 N.W.2d 559(Johnson III). The remedial maps adopted by this court "would be
in effect only 'until such time as the legislature and governor
15 In a startling confession of ignorance, Rebecca Dallet
revealed on a podcast her inability to understand the United States
Supreme Court's equal protection jurisprudence: "[T]he Supreme
Court said, 'Sorry this [sic] maps, the governor's maps violate
the Equal Protection Clause' and they reversed and remanded to
us. . . . I've read [the Supreme Court decision] numerous times
and I don't understand it analytically[.]" Justice Rebecca Dallet,
The Supreme Importance of Wisconsin's Election, Strict Scrutiny
(Apr. 3, 2023) (28:56-29:58),
https://open.spotify.com/episode/0Ijqvbr52tuszDRB3lGGgQ?si=NPOfV
N72TZiv6iYYKSqL6A.
18
No. 2023AP1399-OA
have enacted a valid legislative apportionment plan.'" Johnson I,
399 Wis. 2d 623, ¶19 (quoting State ex rel. Reynolds v. Zimmerman,
23 Wis. 2d 606, 606, 128 N.W.2d 16 (1964) (per curiam)).
II. The Pool of Tears
Redistricting litigation concluded—or at least it should
have—in April 2022, with this court's selection of new maps as a
remedy for malapportionment. Thereafter, state legislative
elections occurred under those maps. At a January 9, 2023
candidate forum, Protasiewicz abandoned universal judicial ethics
to unequivocally declare her position on the matter now before
this court: "So let's be clear here. The maps are rigged—bottom
line. Absolutely, positively rigged. They do not reflect the
people in the state. They are rigged, period." She continued, "I
believe the gerrymandering decision was wrong. As I indicated to
you before, I can't ever tell you what I would do on a particular
case, but I can tell you my values and common sense tell you that
it's wrong."16 Calling her preferred case outcomes her "values"
does not alleviate the ethical dilemmas underlying Protasiewicz's
involvement with this case.
The Democratic Party of Wisconsin invested nearly $10,000,000
in Protasiewicz's successful campaign.17 One day after her term
began, Petitioners—all Democrats—filed this petition. Overturning
precedent to strip duly elected Republicans of their seats and
deliver them to Democrats reeks of a quid pro quo. Rebecca Dallet
foreshadowed this very case: "Big-money special interests have
taken over. Justices refuse to recuse themselves even when their
16 Zac Schultz, Candidates Tangle over Political Issues,
Judicial Perspectives at First 2023 Wisconsin Supreme Court Forum,
PBS Wis. (Jan. 10, 2023), https://pbswisconsin.org/news-
item/candidates-tangle-over-political-issues-judicial-
perspectives-at-first-2023-wisconsin-supreme-court-forum/.
17 WisPolitics Tracks $56 Million in Spending on Wisconsin
Supreme Court Race, WisPolitics (July 19, 2023),
https://www.wispolitics.com/2023/wispolitics-tracks-56-million-
inspending-on-wisconsin-supreme-court-race/.
19
No. 2023AP1399-OA
donors—who've given massive amounts of money—want the court to
rule a certain way."18 Indeed.
Along with her pro-abortion platform, Protasiewicz showcased
her commitment to "fair" maps (whatever that might mean in her
subjective opinion), announcing she would "enjoy taking a fresh
look at the gerrymandering question."19 Protasiewicz acknowledged
the issue would come before the court should she win the election:
"I would anticipate that at some point, we'll be looking at those
maps."20 Protasiewicz went so far as to signal how she would rule
after her "fresh look" at the maps: "If you look at the dissent
in that maps case, that dissent is what I will tell you I agree
with."21
Failing to grasp the indispensability of impartiality in the
exercise of judicial functions, Protasiewicz divulged, "I think
that everybody knows that anybody running for any type of office
has their [sic] own personal opinions and their [sic] own personal
values. And the question is, do you want to hide those opinions
and those values from the public? Are they entitled to know what
your personal feelings are? I mean, we've all got them. So the
question is, do we hide them? Or do we let the public know?"22
Protasiewicz chose her campaign strategy, but Wisconsin's Code of
Judicial Conduct prohibits judges from engaging in extra-judicial
activities which "[c]ast reasonable doubt on the judge's capacity
to act impartially as a judge." SCR 60.05(1)(a). Protasiewicz's
18Judge Rebecca Dallet, Judge Rebecca Dallet: We Need to Fix
Our Broken Wisconsin Supreme Court, The Cap Times (Feb. 13,
2018), https://captimes.com/opinion/column/judge-rebecca-dallet-
we-need-to-fix-our-broken-wisconsin-supreme-
court/article_3851d423-bec8-5b34-bebc-4866cca7da3f.html.
19 Jessie Opoien & Jack Kelly, Protasiewicz Would 'Enjoy
Taking a Fresh Look' at Wisconsin Voting Maps, The Cap Times (Mar.
2, 2023), https://captimes.com/news/government/protasiewicz-
would-enjoy-taking-a-fresh-look-at-wisconsin-voting-
maps/article_d07fbe12-79e6-5c78-a702-3de7b444b332.html.
20 Id.21 Henry Redman, Supreme Court Candidates Accuse Each Other
of Lying, Extremism in Sole Debate, Wis. Exam'r (Mar. 21, 2023),
https://wisconsinexaminer.com/2023/03/21/supreme-court-
candidates-accuse-each-other-of-lying-extremism-in-sole-debate/
22 Opoien & Kelly, supra note 6.
20
No. 2023AP1399-OA
"I can't tell you how I would rule on a case" smokescreen does not
insulate her declarations from a due process challenge; no
reasonable person familiar with her campaign statements would
expect her to rule other than according to the "values" she
explicitly professed. No reasonable person would believe
Protasiewicz can remain fair and impartial in this original action.
Rebecca Dallet once recognized the corrosive effect of
judicial candidates opining on issues the court may be called upon
to decide: "But as a judge, I don't take positions on specific
issues that might come before the court. It's wrong to do
so. When judges take positions on issues, they call into question
the fairness of the courts. Explicit partisan bias harms our
system of justice."23
These common-sense principles are not unique to Wisconsin.
Then-Chief Justice Ronald M. George of the California Supreme Court
explained, "when a candidate for judicial office speaks during an
election campaign about his or her views on issues that may come
before the court, voters reasonably will anticipate that he or she
will render decisions in accordance with those personal views[.]"
Ronald M. George, Foreword: Achieving Impartiality in State
Courts, 97 Cal. L. Rev. 1853, 1861 (2009). "The inclusion of a
judge's personal views among the criteria for judicial election
encourages a process of adjudication that is neither independent
nor impartial." Id. at 1862. And it may violate litigants'
constitutional rights.
While Protasiewicz may have a First Amendment right to say
whatever she thinks will get her elected, parties with cases before
this court have a Fourteenth Amendment right to impartial arbiters
of the law. Would any party defending the maps adopted as this
court's remedy in Johnson III have any confidence in receiving an
unbiased decision after repeatedly hearing Protasiewicz's
"personal opinions" and "personal values" about the maps, or after
reading the following social media post:24
23 Dallet, supra note 5.
24 Protasiewicz, supra note 1.
21
No. 2023AP1399-OA
While judicial candidates cannot control what third parties
(much less Hollywood elites) say about them, candidates have
absolute control over what they repost on social media.
Wisconsin's Code of Judicial Conduct governs such statements: "A
judge, judge-elect, or candidate for judicial office shall not
make or permit or authorize others to make on . . . her behalf,
with respect to cases, controversies, or issues that are likely to
come before the court, pledges, promises, or commitments that are
inconsistent with the impartial performance of the adjudicative
duties of the office." SCR 60.06(3)(b). The First Amendment may
permit Protasiewicz to "air" her "grievances," but retweeting
Julia Louis-Dreyfus' inducement to vote for Protasiewicz in order
22
No. 2023AP1399-OA
to "win" "[f]air maps" and "[a]bortion rights" and "[c]ontrol of
Congress" reflects Protasiewicz's commitment to voting in favor of
those outcomes irrespective of the law. Protasiewicz's failure to
recuse from this case despite her blatant bias should be reviewed
by the United States Supreme Court before Wisconsin taxpayers are
forced to foot the bill for a redistricting do-over. The
reverberations of Protasiewicz's choice to exercise her First
Amendment right at the expense of judicial impartiality extend
beyond Wisconsin. Judicial candidates nationwide may replicate
Protasiewicz's successful but ethically compromised playbook until
the Court curbs the tactic. "The judicial process works only when
it is done in a disinterested manner, which is inconsistent with
campaigns in which judges commit to rule, or appear to commit to
rule, in a certain way in certain cases." Carey v. Wolnitzek, 614
F.3d 189, 193 (6th Cir. 2010).
In Caperton v. Massey, the United States Supreme Court decided
due process required a state supreme court justice's recusal from
a case because "'the probability of actual bias on the part of the
judge or decisionmaker is too high to be constitutionally
tolerable'" based in no small part on $3 million dollars in
donations from the chairman and principal officer of a party to
the action, to a political organization formed to support the
justice who would hear the case after his election. 556 U.S. 868,
877, 884 (2009) (quoting Withrow v. Larkin, 421 U.S. 35, 47
(1975)). Consistent with universal judicial ethics, the justice
in Caperton had not made any statements during his campaign
suggesting he had prejudged the case. See id. at 882.
Nevertheless, the Court determined the justice's participation
violated the Due Process Clause because the campaign spending,
coupled with its temporal proximity to the case, presented "a
serious, objective risk of actual bias." Id. at 886. This court
adopted the Caperton test, holding that a circuit court judge's
repeated social media interactions with a litigant in a contested
paternity case pending before the judge constituted a due process
violation. Miller v. Carroll, 2020 WI 56, 392 Wis. 2d 49, 944
N.W.2d 542. "To assess whether the probability of actual bias
rises to the level of a due process violation, we apply, verbatim,
the standard from Caperton." Id., ¶24.
Highlighting this court's rejection of a constitutionally-
infirm proposal to require recusal from cases involving parties
who contributed $15,000 to a justice's campaign,25 Protasiewicz's
media apologists either misunderstand or misrepresent Caperton.
25 S. Ct. Order 17-01 (issued June 30, 2017).
23
No. 2023AP1399-OA
It isn't just about the money, although anyone equating $10,000,000
and $15,000 exhibits something more than bad arithmetic. Caperton
is based on an enduring principle, pronounced decades ago by the
United States Supreme Court: "Not only is a biased decisionmaker
constitutionally unacceptable, but 'our system of law has always
endeavored to prevent even the probability of unfairness.'"
Withrow, 421 U.S. at 47.
The probability of actual bias on Protasiewicz's part likely
approaches 100%. Wisconsin's Code of Judicial Conduct defines
"Impartiality" as "the absence of bias or prejudice in favor of,
or against, particular parties, or classes of parties, as well as
maintaining an open mind in considering issues that may come before
the judge." SCR 60.01(7m). "A judge, candidate for judicial
office, or judge-elect should not manifest bias or prejudice
inappropriate to the judicial office." SCR 60.06(3)(a).
"Expressions of bias or prejudice by a judge, even outside the
judge's judicial activities, may cast reasonable doubt on the
judge's capacity to act impartially as a judge." Comment to SCR
60.05(1). A mind made up on the campaign trail is unlikely to be
magically opened after the election.
While Caperton likely governs recusal based on Protasiewicz's
receipt of more than three times the amount deemed to offend due
process in that case, Wisconsin's recusal rules govern her
statements on the campaign trail:
[A] judge shall recuse . . . herself in a proceeding
when the facts and circumstances the judge knows or
reasonably should know establish one of the following or
when reasonable, well-informed persons knowledgeable
about judicial ethics standards and the justice system
and aware of the facts and circumstances the judge knows
or reasonably should know would reasonably question the
judge's ability to be impartial:
. . .
(f) The judge, while a judge or a candidate for
judicial office,
has made a public statement that commits, or
appears to commit, the judge with respect to any of
the following:
1. An issue in the proceeding.
2. The controversy in the proceeding.
24
No. 2023AP1399-OA
SCR 60.04(4)(f) (emphasis added).
Protasiewicz is not the only occupant of the office of justice
to declare her position on an issue everyone knew would be
presented to the court upon her election. In March 2023, in
support of Protasiewicz's campaign, Karofsky said: "When it comes
to the maps, the maps are rigged. I wrote in a dissent that the
maps, I didn't use the word rigged, but if you read the dissent
that I wrote in the final case in WEC v. Johnson err—Johnson v.
WEC, you will see those maps are rigged. You can't be in this
state and not realize that. Janet Protasiewicz is saying the quiet
part out loud."26 One can't be in this state and not realize that
at least some members of the majority already made up their minds
on the issues presented in this petition. "'[T]he most sacred of
the duties of a government is to do equal and impartial justice to
all its citizens.'" United States v. Surratt, 855 F.3d 218, 220
(4th Cir. 2017) (Wynn, J., dissenting from dismissal) (quoting
Thomas Jefferson). The constitutional guarantee of due process
embodies this first principle.
III. A Mad Tea-Party
"Decisions first, principles later." Robert H. Bork,
Neutral Principles and Some First Amendment Problems, 47
Ind. L.J. 1, 5 (1971).
The petitioners pose five claims, any one of which would
suffice to reach the majority's preordained outcome in this case,
but the majority selects two, the better to expedite its resolution
of this case in petitioners' favor and perhaps dodge United States
Supreme Court review:
1. Do the existing state legislative maps violate the contiguity
requirements contained in Article IV, Sections 4 and 5 of the
Wisconsin Constitution?
This question was asked, and answered in the negative, in
Johnson III, 401 Wis. 2d 198, ¶70 ("The assembly districts are
contiguous and sufficiently compact.").
26 Frederica Freyberg, Jill Karofsky on the 2023 Wisconsin
Supreme Court Election, PBS Wis. (Mar. 31, 2023),
https://pbswisconsin.org/news-item/jill-karofsky-on-the-2023-
wisconsin-supreme-court-election/.
25
No. 2023AP1399-OA
2. Did the adoption of the existing state legislative maps
violate the Wisconsin Constitution's separation of powers?
This question could have been asked, but was not. The
petitioners could have moved to intervene in the Johnson litigation
two years ago, but did not, and instead waited for the membership
of the court to change before bringing this claim. If the majority
were consistent in its treatment of parties who sleep on their
rights in this manner, they would apply the doctrine of laches
onto which they latched to avoid answering unsettled issues in
prior cases. See, e.g., Trump v. Biden, 2020 WI 91, 394
Wis. 2d 629, 951 N.W.2d 568; Hawkins v. WEC, 2020 WI 75, 393
Wis. 2d 629, 948 N.W.2d 877 (applying laches to bar action filed
two days after certification of candidates for election). Of
course, those cases involved challenges to the administration of
elections which produced outcomes the majority favored.
The court should deny this petition because it relitigates
claims this court only recently decided in Johnson III, 401 Wis.
2d 198, and asserts claims that could have been brought by
intervention at the outset in Johnson I, 399 Wis. 2d 623, in 2021.
Only a change in court membership makes a do-over possible, as the
litigants recognized by announcing their plan to file an original
action just two days after Protasiewicz's election27 and by filing
this petition one day after her term began. At least one member
27 Jack Kelly, Liberal Law Firm to Argue Gerrymandering
Violates Wisconsin Constitution, The Cap Times (Apr. 6, 2023),
https://captimes.com/news/government/liberal-law-firm-to-
arguegerrymandering-violates-wisconsin-
constitution/article_2dfb9757-6d2d-58ba-9461- 10b3d20d5f00.html.
26
No. 2023AP1399-OA
of the current majority—Ann Walsh Bradley—has repeatedly decried
altering precedent based on a change in court membership:28
 "Before concluding, I observe that the majority's analysis
and its overruling of Ferdon depart from the time-honored
principle of stare decisis. We decided Ferdon only thirteen
years ago. '[R]espect for prior decisions is fundamental to
the rule of law.' Johnson Controls, Inc. v. Emp'rs Ins. of
Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257(2003). 'Stare decisis is the preferred course of judicial
action because it promotes evenhanded, predictable, and
consistent development of legal principles . . . and
contributes to the actual and perceived integrity of the
judicial process.' Id., ¶95. 'The decision to overturn a
prior case must not be undertaken merely because the
composition of the court has changed.' Id.; see
also Bartholomew v. Wisconsin Patients Comp. Fund and
Compcare Health Servs. Ins. Corp., 2006 WI 91, ¶32, 293 Wis.
2d 38, 717 N.W.2d 216 ('No change in the law is justified by
a change in the membership of the court[.]')." Mayo v. Wis.
Injured Patients & Fams. Comp. Fund, 2018 WI 78, ¶¶ 109-110,
383 Wis. 2d 1, 61, 914 N.W.2d 678, 707 (Ann Walsh Bradley,
J., dissenting).
 "Stare decisis (Latin for 'let the decision stand') is a basic
tenet of the rule of law. Although stare decisis is not a
mechanical formula requiring blind adherence to precedent,
departing from precedent requires special justification, and
'[n]o change in the law is justified by a change in the
membership of the court or a case with more egregious
28This is not the first time Ann Walsh Bradley upended
established precedent after a change in the membership of the
court. In 2006, she joined a majority in overturning Panzer v.
Doyle, 2004 WI 52, 271 Wis. 2d 295, 680 N.W.2d 666, which the court
had decided just two years earlier. See Dairyland Greyhound Park,
Inc. v. Doyle, 2006 WI 107, ¶286, 295 Wis. 2d 1, 719 N.W.2d 408(Roggensack, J., concurring in part/dissenting in part) ("The
decisions of this court are final if not set aside on a motion for
reconsideration in the case in which the ruling was issued, Wis.
Stat. § 809.64 (2003–04), or overturned by a federal court on a
federal question, see State v. Webster, 114 Wis. 2d 418, 426 n.4,
338 N.W.2d 474 (1983). Notwithstanding this rule of law, at the
request of the Governor, the majority opinion takes up an issue we
decided in 2004 and puts it into the appeal of a 2001 circuit court
decision.").
27
No. 2023AP1399-OA
facts.'" St. Croix Cnty. Dep't of Health & Hum. Servs. v.
Michael D., 2016 WI 35, ¶85, 368 Wis. 2d 170, 880 N.W.2d 107(Abrahamson & Ann Walsh Bradley, JJ., dissenting) (footnotes
omitted; alteration in opinion). "Nothing aside from the
membership of the court has changed since Steven H. A change
in membership of the court does not justify a departure from
precedent." Id., ¶93.
Nothing aside from the membership of the court has changed since
Johnson III. The majority abandons inconvenient principles that
would otherwise obstruct its activism.
IV. The Queen's Croquet-Ground
In resurrecting the following issues from last year's
litigation and imposing them on parties who haven't raised them,
the majority tips its hand; it will overrule Johnson I and Johnson
III, supplant the rule of law with the collective will of four
members of the court, and replace last year's judicial remedy with
an entirely political one:
1. 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)?
2. 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?29
That which was constitutional in 2022 cannot become
unconstitutional in 2023, even if the majority so decrees.
Nevertheless, the standards by which the court in 2022 ordered a
remedy for the inequality of the people's representation in the
state legislature will be discarded by the majority, in a grave
affront to the rule of law.
29 The majority's nonsensical final question in the order
betrays its inability to distinguish a legal claim from a factual
one.
28
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In exercising unbridled power absent lawful authority, the
members of the majority will violate the Wisconsin Constitution,
arrogating unto themselves purely legislative power the people
never gave them. Granting this original action petition "is a
naked judicial claim to legislative—indeed, super-legislative—
power; a claim fundamentally at odds with our system of
government." Obergefell v. Hodges, 576 U.S. 644, 717 (2015)
(Scalia, J., dissenting). "By vesting certain powers exclusively
within each of the three co-equal branches of government, the
drafters of the Wisconsin Constitution recognized the importance
of dispersing governmental power in order to protect individual
liberty and avoid tyranny." League of Women Voters of Wis. v.
Evers, 2019 WI 75, ¶31, 387 Wis. 2d 511, 929 N.W.2d 209. Tyranny
may wear a black robe. See Johnson I, 399 Wis. 2d 623, ¶ 80
(citing In re Review of the Code of Judicial Ethics, SCR Chapter
60, 169 Wis. 2d xv, xxv (1992) (Day, J., concurring, joined by a
majority) ("Tyranny need not be dressed in a military uniform, it
can also wear a black robe!"). "[L]iberty can have nothing to
fear from the judiciary alone, but would have every thing to fear
from its union with either of the other departments." The
Federalist No. 78, at 523 (Jacob E. Cook ed., 1961) (Alexander
Hamilton). In Wisconsin, that fear has come to pass.
"A system of government that makes the People subordinate to
a committee of nine unelected lawyers does not deserve to be called
a democracy." Obergefell, 576 U.S. at 717 (Scalia, J.,
dissenting). Although Wisconsin's justices are elected, democracy
also does not countenance a system of government that subordinates
the people of Wisconsin to a committee of four lawyers, regardless
of how they are chosen. After all, justices are elected to
exercise judicial power, not to fulfill the wishes of their
political benefactors. See Williams-Yulee v. Fla. Bar, 575 U.S.
433, 446-47 (2015) ("In deciding cases, a judge is not to follow
the preferences of his supporters, or provide any special
consideration to his campaign donors."). Under our Wisconsin
Constitution, judicial power is the only authority the people gave
this court. Wis. Const. art. VII, § 2. Judicial elections cannot
override the constitution.
Ultimately, petitioners ask the court to unseat Wisconsin's
duly elected senators by judicial decree—"off with their heads!"
The majority's acquiescence to this unprecedented demand would
deal a death blow to democracy in this state. Wisconsin citizens
would become the majority's subjects, at the mercy of the masters
who were once the People's servants.
* * *
29
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The democratic integrity of law . . . depends entirely
upon the degree to which its processes are legitimate.
A judge who announces a decision must be able to
demonstrate that he began from recognized legal
principles and reasoned in an intellectually coherent
and politically neutral way to his result. Those who
would politicize the law offer the public, and the
judiciary, the temptation of results without regard to
democratic legitimacy.
Robert H. Bork, The Tempting of America: The Political Seduction
of the Law 2 (1990). The outcome of this original action has been
predetermined. In granting this petition, four members of this
court pretend the Johnson litigation never happened. ("'Oh, I've
had such a curious dream!' said Alice.")30 Their perverse
politicization of this state's highest court begins with the
results—"Fair maps!"—and will end with decisions devoid of
democratic integrity, and without democratic legitimacy. Would
that it were The End, but the majority's degradation of the court
is only just beginning. Through the Looking Glass31 we go.
I am authorized to state that Chief Justice ANNETTE KINGSLAND
ZIEGLER joins this dissent.
30 Lewis Carroll, Alice's Adventures in Wonderland 189 (1865).
31 Lewis Carroll, Through the Looking Glass, and What Alice
Found There (1871).
30
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BRIAN HAGEDORN, J. (dissenting). The drawing of
legislative districts stirs sincere and passionate disagreement.
As a court of law, however, we must be guided by something beyond
political and policy debates. If we were following the normal
judicial process, this petition for an original action would be
unanimously denied. Two years ago, this court stepped into
redistricting because the legislature did not enact new maps into
law, which the Wisconsin Constitution requires every ten years.32
Courts cannot pass laws, of course. But they can impose a suitable
remedy for constitutional violations. We did so, and selected
state assembly and senate maps after receiving proposals submitted
32The Wisconsin Constitution states that "the legislature
shall apportion and district anew the members of the senate and
assembly, according to the number of inhabitants," following the
federal government's decennial census. Wis. Const. art. IV, § 3.
From our founding as a state, the legislature has always
accomplished this by enacting a reapportionment bill into law with
the governor exercising his constitutional power to veto
legislation. State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544,
558, 126 N.W.2d 551 (1964). When the legislature attempted to
reapportion districts in 1964 by joint resolution (so that the
Governor could not use his veto pen), we rejected the move and
held that enactment by law is what the constitution requires.
Id. at 558-59.
31
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by the parties in the case.33 We concluded, among other things,
that the maps we settled on complied with the requirements of the
Wisconsin Constitution. That judicial remedy remains in place
today, filling the gap until such time as the legislature enacts
new maps into law.
The petitioners now seek to reverse multiple decisions of
this court and the ongoing remedy we put in place in a case they
33 At the outset of the litigation, we invited the parties to
submit proposed maps consistent with criteria we would provide.
Johnson v. WEC, No. 2021AP1450, unpublished order (Wis. Nov. 17,
2021). We later discussed the legal requirements and criteria we
would use to select maps in our first of three opinions in the
case. Johnson v. WEC, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469(Johnson I). Given our narrow remedial task of adjusting districts
to resolve population disparities, we determined we would select
maps that complied with all legal requirements and departed the
least from existing law—that is, the districts last enacted into
law. Id., ¶¶24-38, 64-68, 73-79. Following the submissions, we
initially selected the Governor's legislative maps because we
determined they made fewer changes to existing districts than the
other proposals we received. Johnson v. WEC, 2022 WI 14, ¶¶8-10,
400 Wis. 2d 626, 971 N.W.2d 402 (Johnson II). The United States
Supreme Court then clarified that we could select the Governor's
race-conscious maps only if it was proven before us that a race-
neutral alternative violated the Voting Rights Act. Wis.
Legislature v. Wis. Elections Comm'n, 595 U.S. 398, 403-04 (2022)
(per curiam). We reconsidered, concluded the Governor's maps did
not pass that hurdle, and selected the only race-neutral
legislative maps proposed to us—those of the legislature. Johnson
v. WEC, 2022 WI 19, ¶¶2-3, 401 Wis. 2d 198, 972 N.W.2d 559 (Johnson
III). We did not do so because the legislature had some type of
preferred status in the litigation before us. As explained in the
previous footnote, the legislature's constitutional prerogative
and responsibility encompasses enacting maps into law. Wis. Const.
art. IV, § 3. Because it did not accomplish this task, the
legislature appeared before us simply as one of several parties to
the litigation. The same was true of the Governor. He stood on
equal footing with all other parties in the litigation, each of
whom could have submitted maps that better complied with all
relevant laws and our directive to minimize change from the maps
then codified into law.
32
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could have participated in, but chose not to.34 Parties, however,
generally cannot challenge judicial remedies in this fashion. This
petition appears to be a collateral attack on the court's decisions
and orders in Johnson v. WEC. Procedurally, this is highly
unusual, and it may be impermissible under the law.35 Nevertheless,
the court today votes to take this case and consider two questions.
First, we are asked to overturn two decisions from Johnson
and hold that the Wisconsin Constitution requires districts to be
physically contiguous.36 This despite the fact that the
legislature has considered political contiguity (keeping
municipalities together) to be constitutionally sufficient for at
least the last 50 years.37 In 1992, the federal court handling a
34We invited any interested parties—including individual
voters—to join the case at the beginning stages of the litigation.
Johnson v. WEC, No. 2021AP1450, unpublished order (Wis. Sept. 22,
2021). Many did; we denied none the opportunity to participate.
35The normal rule in litigation is that judgments are binding
and final. Oneida Cnty. Dep't of Soc. Servs. v. Nicole W., 2007
WI 30, ¶28, 299 Wis. 2d 637, 728 N.W.2d 652. Generally, unless a
judgment is the result of fraud or some other narrow exception,
parties may not challenge judgments indirectly through a separate
proceeding—called a collateral attack. Id. Attempts "to avoid,
evade, or deny the force and effect of a judgment in an indirect
manner" will ordinarily not be entertained because they disrupt
finality, undermine the court, and impair the administration of
justice. Id., ¶¶27-28 (quoting another source).
36Johnson I, 399 Wis. 2d 623, ¶36 (affirming the federal
court's conclusion in Prosser v. Elections Bd., 793 F. Supp. 859,
866 (W.D. Wis. 1992), that detached, municipal islands constitute
sufficient legal contiguity under Article IV, Section 4 of the
Wisconsin Constitution); Johnson III, 401 Wis. 2d 198, ¶70
(holding that the assembly districts, three of which make up a
senate district, satisfied the constitution's contiguity
requirement).
37The brief by the Republican senators points to a statute
passed in 1971—after the legislature adopted new maps—that appears
to reflect this view: "In designing the districts, the following
factors are considered as coequal in precedence: compactness,
contiguity of area, and community of interest. Island territory
(territory belonging to a city, town or village but not contiguous
to the main part thereof) is considered a contiguous part of its
municipality." Wis. Stat. § 4.001(2) (1971-72).
33
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redistricting impasse explicitly considered this issue and adopted
politically (but not physically) contiguous maps.38 The federal
court adopted similar maps in 2002.39 No one protested on this
ground when the legislature enacted new maps into law doing the
same in 2011.40 And no parties in Johnson argued this point when
we affirmed that political contiguity was constitutionally
sufficient.41 Yet the voter-petitioners here have determined that
now is the time to take a fresh look. They were inspired to
challenge longstanding precedent and practice on August 2, the day
after a new justice was sworn into office—a remarkable coincidence.
The second issue also runs headlong into our decisions in
Johnson. The petitioners argue that this court violated the
separation of powers by adopting a judicial remedy proposed by the
legislature, whom we admitted as a party to the litigation.42 This
is so, they assert, because the legislature previously tried to
pass into law the maps it later submitted to this court, and the
Governor vetoed them. We do not enact laws, though. So the theory
appears to be that this court cannot adopt a judicial remedy in
litigation that was also an unsuccessful piece of legislation.
There'll be time enough to evaluate the merits of these
arguments as this case unfolds. But make no mistake, the process
here smells. Everyone understands that this case is aimed at
something beyond newfound concern for the constitution's
contiguity requirement or whether failed legislation can be used
as a judicial remedy. It is a search for some plausible legal
basis—anything will do, really—to green-light a judicially
commanded political realignment of state government. This case is
an outcome in search of a theory.
And the court is happy to oblige. Despite the petitioners
standing by until the court's composition changed, the court
dutifully adopts an accelerated briefing and oral argument
38 Prosser, 793 F. Supp. at 866.
39Baumgart v. Wendelberger, Nos. 01-C-0121, 02-C-0366, 2002
WL 34127471 (E.D. Wis. May 30, 2002).
40 2011 Wis. Act 43.
41Johnson I, 399 Wis. 2d 623, ¶36; Johnson III, 401
Wis. 2d 198, ¶70.
42See supra n.2 (explaining the status of the legislature as
a party to the litigation).
34
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schedule. It even changed our internal writing deadlines on
original actions to ensure this case would be fast-tracked.
Further, the court directs the parties to brief an almost identical
question to the one we addressed in Johnson I: what standards
should guide the court in imposing a remedy if the current district
lines are unlawful? Asked and answered, methinks. But the goal
is to get this court into the business of being the supreme
guardian of "partisan fairness" in map-making—contrary to what we
just held—and to do so before the next election cycle.
Were it otherwise, there's no way we would take a case in
this posture and on this pseudo-emergency schedule—one brought by
parties who strategically sat on their hands for years, who were
invited to join the last redistricting case and did not, and who
now seek to disturb the ongoing judicial remedy in that case on
issues we already decided. An ordinary court would see the
political gamesmanship for what it is, deny the petition, and move
on. These are not, I'm afraid, ordinary times, and this is not an
ordinary court.
Granting this petition comes at a steep price. Politics may
be a team sport, but judging is not. We have no partisan team
when deciding cases. Instead, we have sworn an oath to decide
cases as neutral arbiters of the law, with no thumb on the scale
for anyone. The more we accommodate those who wish to use this
court as a weapon in the political wars raging among us, the more
we depart from the modest role the constitution assigns to us and
invite even more political gamesmanship. Those hoping the
judiciary will boldly take up the mantle of guaranteeing "partisan
fairness" for legislative maps may uncork their champagne in the
short term. But the celebration won't last long. In the end, few
will be happy, the politicization of the judiciary will worsen,
and this litigation will never truly end.
I respectfully dissent.
I am authorized to state that Chief Justice ANNETTE KINGSLAND
ZIEGLER joins this dissent.
35
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