Clarke v. Wis. Elections Comm'n

2023 WI 70

995 N.W.2d 779

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 S. Jacobs, Marge Bostelmann, Joseph J. Czarnezki in their official capacities as Members of the Wisconsin Election Commission; Meagan Wolfe in her official capacity as the Administrator of the Wisconsin Elections Commission; Andre Jacque, Tim Carpenter, Rob 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.

No. 2023AP1399-OA

Supreme Court of Wisconsin.

Filed October 6, 2023

The Court entered the following order on October 6, 2023:

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 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, 639 N.W.2d 537. 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;

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 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...