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Court of Appeals asks SCOW to review challenge to adoption of victims’ rights amendment

Wisconsin Justice Initiative v. Wisconsin Elections Commission, 2020AP2003, certification issued 12/21/21; case activity (including briefs)

Question certified (composed by On Point):

Was the single ballot question submitting the “Marsy’s Law” constitutional amendments to voters legally insufficient because it:

(1) does not “reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment,” State ex rel. Ekern v. Zimmerman, 187 Wis. 180, 201, 204 N.W. 803 (1925);

(2) is misleading, in that it contained “misinformation” and did not “mention[] [its subject] in accord with the fact,” State ex rel. Thomson v. Zimmerman, 264 Wis. 644, 660, 60 N.W.2d 416 (1953); or

(3) should have been submitted as more than one ballot question because the proposed amendment encompassed more than one subject matter and accomplished more than one purpose, McConkey v. Van Hollen, 2010 WI 57, ¶¶25-26, 41, 326 Wis. 2d 1, 783 N.W.2d 855.

As we related here, a circuit court held the Marsy’s Law ballot question (set forth at the bottom of page 6 of the certification) was insufficient on all three grounds, and therefore it held the amendments to Article I, § 9m of the Wisconsin Constitution proposed by Marsy’s Law were not duly enacted and thus are invalid. The Elections Commission appealed, and the court of appeals now certifies the issues to the supreme court due to significant and novel questions of state constitutional law involved, which are carefully discussed in the certification.

While the issues being litigated involve the standards for judging ballot questions presenting constitutional amendments to voters, the outcome of the litigation will obviously affect day-to-day criminal practice because it will determine whether the victims’ rights amendments were properly enacted. Of course, we won’t know the outcome for some time. If the supreme court accepts the certification, we might see a decision this term, which ends in June 2022, but it might not be till early next term; if SCOW doesn’t take the case, we’ll have to await a decision from the court of appeals, after which the losing party will again ask SCOW to hear the case. Stay tuned.

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