WISCONSIN COURT OF APPEALS
William C. McConkey,
J. B. Van Hollen, in his role as Attorney General of
APR 09, 2009
David R. Schanker
Clerk of Supreme Court
CERTIFICATION BY WISCONSIN COURT OF APPEALS
Before Higginbotham, P.J., Dykman and Lundsten, JJ.
The central question in this appeal is whether Article XIII, Section 13 of the Wisconsin Constitution, commonly known as the marriage amendment, was enacted in violation of the single-subject rule set forth in Article XII, Section 1 of the Wisconsin Constitution. Resolution of this question will require clarification of the proper legal standard and methodology for determining the purpose of a constitutional amendment under the single-subject rule. A cross-appeal raises an additional issue of first impression regarding standing—namely, whether a voter who would have voted the same way on each of two propositions included in a single-ballot referendum can claim to have personally suffered a direct injury by an alleged violation of the single-subject rule. Because this appeal presents several novel issues, and because the validity of the marriage amendment is a matter of significant public interest with statewide implications, we hereby certify this appeal to the Wisconsin Supreme Court for its review and determination, pursuant to Wis. Stat. Rule 809.61 (2007-08).
In two successive sessions, both houses of the Wisconsin Legislature adopted resolutions to create a new provision in the Wisconsin Constitution relating to marriage. See 2005 Assembly Joint Resolution 67; 2005 Senate Joint Resolution 53. The proposed marriage amendment was submitted to voters for ratification by a referendum question asking:
Shall section 13 of article XIII of the constitution be created to provide that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state and that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state?
The ballot measure passed on November 7, 2006.
William McConkey, a registered voter and taxpayer of this state, filed suit seeking to have the marriage amendment declared invalid on multiple substantive and procedural grounds, including an alleged violation of the single-subject rule. Relevant to this appeal, he claimed that the first part of the referendum question limiting marriage to only one man and one woman was a separate subject from the second part refusing to recognize any substantially similar legal status to marriage for unmarried individuals. McConkey stipulated that, if the two parts of the ballot question had been presented separately, he would have voted no on each part.
The circuit court held that McConkey has standing to raise the single-subject issue based on his status as a voter. It then concluded, however, that the proposed amendment was properly presented as a single question on the ballot. McConkey appeals, and the attorney general cross-appeals the standing ruling.
Article XII, Section 1 of the Wisconsin Constitution sets
forth a procedure for the people of this state to ratify constitutional
amendments proposed by the legislature “provided, that if more than one
amendment be submitted, they shall be submitted in such manner that the people
may vote for or against such amendments separately.” There appear to be only three
In State ex rel. Hudd v. Timme, 54
In State ex rel. Thomson v. Zimmerman,
In Milwaukee Alliance Against Racist & Political
Repression v. Elections Board, 106 Wis. 2d 593, 317 N.W.2d 420 (1982),
the court held that a proposition allowing courts to deny or revoke bail for
certain persons was properly presented in a single ballot question with another
proposition allowing courts to set bail and other conditions for the release of
accused persons to assure their appearance in court, protect members of the
community, or prevent the intimidation of witnesses. The court reasoned that allowing judges to
deny bail for reasons of community safety and allowing them to set non-monetary
conditions for release were “integral and related aspects of the amendment’s
total purpose,” which was “to change the historical concept of bail with its
exclusive purpose of assuring one’s presence in court … to a comprehensive plan
for conditional release.”
The first problem we see with this line of cases is that the multiple formulations of the single-subject test, originally set forth in Hudd, do not appear to be consistent with one another. That is, a requirement that separate propositions must be at least “connected with each other” would seem to be considerably broader than a requirement that they be “dependent upon” one another, such that the defeat of one would destroy the usefulness of other adopted propositions or defeat the overall purpose of the amendment. It does not appear that the same result would have been reached in Hudd if the legislative salary issue had to be dependent upon, rather than merely connected with, the change to biennial sessions. Yet the court’s decision in Thomson—that provisions relating to the formation of assembly district boundaries and population counts for both senate and assembly districts were not necessary to carry out a provision relating to the formation of senate districts—does not appear to have considered whether the measures might have been connected with each other, even if they were not dependent upon one another. Therefore, we believe clarification on the proper formulation of the single-subject test is called for.
Secondly, regardless whether multiple propositions must be “connected with” or “dependent upon” one another in order to serve the same overall purpose, we see a need for additional guidance as to the proper method for determining the purpose of a proposed amendment. Because it does not appear that the purpose of the amendments in Hudd, Thomson, or Milwaukee Alliance was at issue, each of those cases simply asserted an intended purpose without discussing how the court should determine purpose. Should a court look first at the language of the ballot question or the language of the legislative resolutions? What consideration should be given to materials from the legislative reference bureau and the notice provided to the public explaining the proposed amendment? Should other contemporaneous materials be considered only if there is an ambiguity in the text itself, as with determinations of legislative intent in the statutory construction context? Since the determination of purpose will often be dispositive, it is critical that guidance on this topic be provided.
We further note that the parties here dispute the interpretation of the second proposition in the marriage amendment. McConkey claims that refusing recognition of any “legal status identical or substantially similar to that of marriage” denies both same-sex and opposite-sex unmarried couples access to the same or similar legal protections granted to married couples. Under this interpretation, the validity of such things as domestic partnership benefits or hospital visitation rights could come into question. The attorney general contends that refusing recognition of any “legal status identical or substantially similar to that of marriage” merely prevents the state from creating some form of marriage-by-another-name for same-sex couples—i.e.¸ civil unions. To the extent that it may become necessary to interpret the constitutional provision in order to determine its purpose, we again believe the Wisconsin Supreme Court is the most appropriate forum for this case.
Finally, on the question of standing, the attorney general argues that a voter is not injured by a violation of the single-subject rule unless he or she is actually precluded from voting for his preference on one of the multiple propositions set forth. In order for that to occur, the voter would need to allege that he would have voted differently on separate propositions contained in the referendum. McConkey counters that his impact as a voter was diminished because other voters were deprived of the opportunity to agree with his no vote regarding a prohibition on granting rights similar to those conferred by marriage on unmarried couples. That is, if the propositions had been set forth separately, significant numbers of persons may have voted yes to a ban on same-sex marriage, but no to a ban on extending similar rights to unmarried couples. We see little guidance in the case law as to the standing requirements to challenge a constitutional amendment on the grounds of an alleged violation of the single-subject rule. Accordingly, we conclude it is also appropriate to certify this case to the Wisconsin Supreme Court for clarification of the standing issue.
 All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.