In Brief: Kaul challenges Legislature's intervention in election case

"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those lifted parts are indented. My additions / summaries are not.

Please remember — these are generally taken from briefs and present the arguments of the parties appealing. They do not necessarily present the full story. 

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The case: Disability Rights Wisconsin v Wisconsin Elections Commission

Case no.: 24AP1347

Filed in: District I Court of Appeals

Circuit court: Dane County

Circuit judge: Everett Mitchell

Filing attorney: Joshua Kaul

Title: Attorney general

Law firm / agency: Wisconsin Department of Justice

Filing Attorneys: Charlotte Gibson, Faye Hipsman, Karla Keckhaver, Jonathan Whitney

Title: Assistant attorney general

Law firm / agency: Wisconsin Department of Justice

Introduction

On July 5, the Wisconsin Supreme Court issued Evers v. Marklein, rejecting two statutes that gave a legislative committee the power to override decisions of the executive branch about how to administer and execute the law.

The court reaffirmed the separation of governmental powers enshrined in the Wisconsin Constitution. It held that statutes that “effectively create a legislative veto” violate the separation of powers because they allow a legislative committee to “interfere with and even override the executive branch’s core power of executing the law.”

Here, the Legislature seeks a similar power to veto decisions of the executive branch. It moved for intervention in an election case brought against the Wisconsin Elections Commission. The Legislature was not a named defendant, and no legislative power is implicated by the case. But under § 803.09(2m), a statute passed after the election of Governor Evers and Attorney General Kaul but before they took office, the Legislature has the statutory power to intervene even when it is not a named party, has no interest as the legislature, and the executive branch is defending the case.

As applied here, that statute is unconstitutional. Managing litigation is part and parcel of executing and administering the law. Just as in Marklein, the Legislature’s power to override the executive branch’s management — here, by becoming an intervenor defendant with the full power to make different litigation decisions — violates the separation of powers.

In seeking to intervene below, the Legislature invoked both § 803.09(2m) and the regular intervention as of right statute, § 803.09(1). The latter statute would also have done the Legislature no good because the Legislature would fail the second, third, and fourth prongs of the test under that statute: it has no protected interest as the Legislature, no interest that thus can be impaired, and is adequately represented by the attorney general and Commission. The Legislature sought permissive intervention, too, but that would not remedy the separation of powers violation here.

Issues presented

1. Is § 803.09(2m), which permits the Legislature to intervene in a case seeking accommodations under the federal ADA and Rehabilitation Act, unconstitutional as applied here because it violates the separation of powers?

The circuit court granted the Legislature’s motion to intervene but did not explain why. It did not address the Commission’s argument that the statute is unconstitutional as applied.

This Court should answer yes.

2. Does the Legislature fail to meet the standards for mandatory intervention under Wis. Stat. § 803.09(1) based on its interests as the Legislature?

The circuit court granted the Legislature’s motion to intervene but did not explain why.

This Court should answer yes.

3. Would granting permissive intervention to the Legislature here also be unconstitutional?

The circuit court did not answer this question.

This Court should answer yes.

Statement of the case

This case involves the constitutionality of the Legislature’s intervention in a civil action against the Wisconsin Elections Commission involving claims under the federal Americans with Disabilities Act (ADA) and Rehabilitation Act. The plaintiffs seek accommodations in how voters with print disabilities receive, vote, and return absentee ballots.

In December 2018, after the election of Governor Evers and Attorney General Kaul but before they took office, the Legislature passed 2017 Wis. Act 369.

Among other things, provisions of Act 369 allow a legislative committee, the Joint Committee on Legislative Organization, to authorize the Legislature, or one house thereof, to intervene as itself in certain circumstances.

And under § 13.365(3), the assembly, the senate, or the Legislature “may intervene . . . at any time in [an] action” when a statute is challenged.

The Joint Committee has an unlimited appropriation to pay for outside counsel for that purpose. Since the law’s passage, the Legislature has intervened in a multitude of cases, particularly election-related cases brought by pro-voting groups. From 2018 to 2021, the Legislature spent $8.5 million in taxpayer funds in matters related to executive orders and to defend statutes including election provisions. This included almost $2 million dollars in 2020 on involvement in election lawsuits against the Commission alone.

The Legislature moved to intervene in the Disability Rights case. The Elections Commission argued that § 803.09(2m) was unconstitutional and that the Legislature did not meet statutory criteria for intervention. Dane County Circuit Judge held oral argument and the next day, without any explanation, granted the Legislature's motion to intervene.

Argument

The Court of Appeals should reverse Mitchell's ruling, the brief argued.

The Legislature cannot constitutionally intervene to represent the state’s interests where the attorney general and executive branch are already defending this case. The Legislature has no constitutional role in the issues presented. In addition, the Legislature fails the statutory test for intervention as of right, and permissive intervention presents the same constitutional impediments as with Wis. Stat. § 803.09(2m).

I. The Legislature’s intervention in this matter violates the separation of powers.

In seeking to intervene, the Legislature asserted that it has an interest either as the state or the Legislature in ensuring that a Wisconsin law is upheld and is entitled to intervene even when the attorney general and Commission defendants are already defending the case. Wisconsin’s separation of powers doctrine prevents that outcome: defending litigation is an executive branch function, and intervention would allow the Legislature to execute the law.

***

In Marklein, the Wisconsin Supreme Court reaffirmed the separation of powers in Wisconsin and emphasized that the “executive branch’s role is to effectuate the policies passed by the legislature.” When “executing the law, the executive branch must make decisions about how to enforce and effectuate the laws”: to decide what the law requires and how to apply it. ...

Because the power to execute the law is vested in the executive branch, only the executive branch may exercise it. Neither the Legislature nor the executive branch may “possess directly or indirectly, an overruling influence over the other[ ] in the administration of their respective powers.”

***

The attorney general and Commission’s defense of the law at issue in this case constitutes core executive power. The Legislature has no constitutional power to defend the state’s interest in litigation here, and it has no legislative institutional power implicated by the matter.

Here, the attorney general and Commission are executing the law by litigating this case. They are exercising judgment and discretion in applying the generally applicable law, assessing the relevant facts on the ground, deciding how to present evidence, and taking into account how the plaintiffs’ claims will affect the administration of Wisconsin elections law. This job is constitutionally tasked to the executive branch.

***

In contrast to the executive branch’s constitutional role in defending the litigation at issue, the Legislature has no constitutional role or power to act as the “state’s litigator-in-chief or even the representative of the people at large.”

This case impacts no constitutional power of the Legislature. The Legislature can constitutionally be a litigant in cases challenging the Governor’s veto, for example, because that veto affects the Legislature’s constitutional job to pass bills. That role does not exist once a law is enacted: it is then up to the executive branch to carry out.

II. The Legislature does not meet the statutory standard for intervention as of right under Wis. Stat. § 803.09(1).

Without its new intervention statute, the Legislature must satisfy the traditional factors for intervention of right under Wis. Stat. § 803.09(1). It is no surprise that, under that well-established standard, the Legislature rarely intervened prior to 2019. The Legislature cannot meet the standards of Wis. Stat. § 803.09(1) here: it has no protected interest as the Legislature, no interest that could be impacted by the outcome of the litigation, and its asserted interests will be more than adequately represented by the existing parties.

To intervene as of right, a movant must meet four elements: (1) a timely intervention motion; (2) an interest sufficiently related to the subject of the action; (3) the disposition of the action may as a practical matter impair the movant’s ability to protect that interest; and (4) the movant’s interest is not adequately represented by existing parties.

The Legislature asserted that it has a protected interest as the Legislature in seeing laws it passed upheld, the “efficacy of its own powers,” or the “integrity of elections.” None of these are protected interests for purposes of intervention.

The interest element for purposes of intervention corresponds with the concept of standing: it requires a direct and immediate interest relating to the statutes at issue in the case. Because it has no protected interest under the second prong of intervention, the Legislature also has no interest that will be impeded by the outcome of the litigation for purposes of the third prong.

The Legislature has no protected interest in seeing the law it passed upheld or upheld against a constitutional claim.

The U.S. Supreme Court has held that legislative bodies lack a protected interest when they seek to intervene based on an asserted legislative interest in seeing a law upheld.

Finally, the Legislature asserted that it has a protected interest for intervention purposes on the theory it has a “powerful interest in election integrity.”

Federal courts have recognized that “election integrity” is not a direct, protected interest for standing purposes.

State courts are in accord. In Teigen v. WEC, only three justices would have held that voters had an injury for standing purposes based on a concept of “vote dilution,” which those justices viewed as an asserted injury to the integrity of the election process. The court of appeals has expressed doubt that “vote dilution” theory could ever “amount to an actual, concrete injury that gives [plaintiffs] a justiciable stake” in a case.

Even if the Legislature could establish a protected and unique interest in this litigation, it would not be entitled to intervene because the attorney general and Commission will adequately represent its interests — the fourth requirement of the mandatory intervention analysis.

First, adequate representation is presumed when a movant and an existing party have “the same ultimate objective” in the action.

Second, adequate representation is presumed when a party is “a governmental body or officer charged by law with representing the interests of the absentee.”

The Legislature seeks the same result as the Commission defendants. The Commission is expressly charged with administering Wisconsin election laws, and its legal representative, the Department of Justice, is responsible for defending the validity of state statutes. The Legislature provided no compelling showing to overcome those presumptions.

III. This Court should deny permissive intervention.

The Legislature has also sought permissive intervention, but that would fail for the reasons discussed above. The Legislature has no protected interest in being a party as the Legislature, and it seeks intervention to keep an eye on how the attorney general and Commission defend the case and to potentially make different litigation choices. As counsel for the Legislature said at oral argument, “[w]e just want to have a seat at the table to argue that the statute we enacted is constitutional,” and to appeal, even if the Commission decides that an appeal is not in the best interest of elections administration in Wisconsin. But becoming an intervenor-defendant for that reason presents the same separation of powers violation as if the Legislature had intervened under Wis. Stat. § 803.09(2m).

Decision in Brief: Sen. Cory Tomczyk loses defamation case

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"In brief" posts are shorter looks at interesting filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the documents themselves (expressing gratitude to lawyers and judges who are decent writers). Those lifted parts are indented. My additions / summaries are not.

Case no: 23AP998

Case name: Cory Tomczyk v Wausau Pilot and Review Corp.

Court of Appeals District: III

Panel: Lisa Stark, Thomas Hruz, and Gregory Gill Jr.

Opinion author: Stark

Circuit Court: Marathon County

Judge: Scott Corbett

Attorneys for Wausau Pilot and Review: Joseph Terry, Stephen Fuzesi, Tyler Infinger, and Peter Jorgensen

Law firm: Williams & Connolly

Attorneys for Wausau Pilot and Review: James Friedman, Brian C. Spahn, and Maxted Lenz

Law firm: Godfrey & Kahn

Attorney for Cory Tomczyk: Matthew Fernholz Law firm: Cramer Multhauf

Cory Tomczyk and Genesis Ventures, Inc. d/b/a IROW appeal from an order of the circuit court granting summary judgment to Wausau Pilot and Review Corporation, Damakant Jayshi, and Shereen Siewert and dismissing Tomczyk and IROW’s defamation lawsuit. Tomczyk and IROW allege that Wausau Pilot published two articles in August 2021 falsely accusing Tomczyk of referring to two individuals as a “fag” at a Marathon County Board of Supervisors meeting, during which the county board addressed whether it should adopt a resolution aimed at increasing diversity by labeling the county a “community for all” (hereinafter, Community for All resolution).

Tomczyk is a Republican state senator from Mosinee. IROW is his shredding, recycling, and media destruction company.

The issue on appeal is whether Tomczyk is a public figure for purposes of defamation law. If so, Tomczyk and IROW are required to establish that Wausau Pilot made the allegedly defamatory statements with actual malice — the standard established under New York Times Co. v. Sullivan. The circuit court determined that Tomczyk was a limited purpose public figure with respect to the Community for All debate and that Tomczyk and IROW were unable to prove, by clear and convincing evidence, that Wausau Pilot made the allegedly defamatory statements with actual malice.

Tomczyk, was not yet a senator when he attended two county board meetings in May and August, 2021, and spoke against the resolution. He allegedly made the slurs at the August meeting. An attendee, Norah Brown, said in an affidavit that she heard both comments and texted another woman about one of them.

A video of the August 12, 2021 meeting was made publicly available on the internet. While Tomczyk’s comments cannot be heard, Brown can be seen turning her head to look at Tomczyk as an individual was walking up to the microphone to speak, which occurred approximately twelve minutes into the video. The clock on the wall is visible in the video, showing that the time was approximately 4:14 p.m. A couple of minutes later, the camera switches back to a view of the audience, and Brown can be seen on the video looking down at her telephone in her lap. The record indicates that Brown sent ... the message at 4:16 p.m.

Two community members, including Brown, testified at an Aug. 19 about the alleged comments.

On August 21, 2021, Wausau Pilot published the first article at issue in this case, reporting on the Community for All debate (hereinafter, the August 21 article). Jayshi’s name was on the byline. The article outlined the opinions on each side of the debate and quoted several individuals. The article also reported on the August 19, 2021 meeting and addressed Tomczyk’s alleged comment. ... Of note, the August 21 article did not identify Tomczyk by name, only referring to him as “a local businessman.”

On August 28, 2021, one week later, Wausau Pilot published the second article at issue in this case, which identified Tomczyk as the individual who had used the slur. The August 28 article also included a hyperlink to the August 21 article. Again, Jayshi was listed as the author of the article. The August 28 article observed that the Community for All debate “exposed rifts not only between elected officials but also among members of the community, mirroring a divide that, polls show, is only getting wider.” It further reported that certain county board supervisors and members of the county’s diversity commission had been harassed and threatened as a result of the resolution. The August 28 article continued:

Mosinee resident Cory Tomczyk, during an Executive Committee meeting on Aug. 12, called commission members “fools” who are paid by taxpayers. Tomczyk, earlier this month, was widely overheard calling a 13-year-old boy who spoke in favor of the resolution a [slur], prompting another resident ... to say later that the boy should “get over it.”

According to the record, while Jayshi wrote the article, the sentence attributing the slur to Tomczyk was added by Siewert after she took steps to confirm that Tomczyk had used the slur at the August 12 meeting.

When Wausau Pilot refused to issue a retraction, Tomczyk and IROW filed this suit against Wausau Pilot, alleging defamation claims on behalf of both Tomczyk and IROW. The basis of the defamation claims was that Wausau Pilot “disparaged not only Tomczyk, but his business, IROW”— given the identification of “Tomczyk as a ‘local businessman’”— by “asserting that Tomczyk referred to a 13-year-old boy as a ‘[slur],’” which the complaint stated “stemmed from ill will, bad intent, and malevolence towards” Tomczyk. The complaint further alleged that Wausau Pilot acted “with actual malice” because it “either knew such statements were false, or … acted with reckless disregard as to whether such statements were true or false.” In addition, the complaint alleged that Wausau Pilot acted “with an intent to harm [Tomczyk’s] reputation in the community.”

The circuit court granted Wausau Pilot’s summary judgment motion by written decision. The court concluded that Tomczyk was “a public figure at least for the limited purpose of the ‘Community for All’ debate” because “[h]e was a local business owner who spoke out against the resolution at two public meetings on the issue”; “[b]oth his public comments and the alleged use of a slur toward another person making public comment were newsworthy, making his role in the controversy more than trivial or tangential”; “[a]nd, given that the stated purpose of the ‘Community for All’ resolution was to promote inclusivity, his alleged use of the slur would be germane to the resolution and to his participation in the controversy.” The court further determined that Tomczyk and IROW could not meet their burden to establish actual malice: “On this record, it is not possible to find that [Wausau Pilot] had serious doubts about the truth of the publication.” Tomczyk and IROW appeal.

Discussion

Courts define “public figures” as those individuals “who, although not government officials, are nonetheless ‘intimately involved in the resolution of important public questions.’”

In Wisconsin, there are two kinds of public figures under the law: general purpose public figures and limited purpose public figures. We conclude that we need not reach the question of whether Tomczyk is a general purpose public figure because Tomczyk undoubtedly qualifies as a limited purpose public figure.

“Limited purpose public figures … are otherwise private individuals who have a role in a specific public controversy.” In Wisconsin, our state supreme court “has established a two-prong test to determine whether a defamation plaintiff is a limited purpose public figure: ‘(1) there must be a public controversy; and (2) the court must look at the nature of the plaintiff’s involvement in the public controversy.’”

In this case, Tomczyk concedes that there was a public controversy. Tomczyk states, “To be sure, the Community for All [r]esolution was a public controversy in Marathon County in the summer of 2021.”

The controversy centers around the Community for All resolution and what role Tomczyk played in that debate. Tomczyk does not argue to the contrary.

We conclude that Tomczyk’s involvement with the Community for All debate was more than trivial or tangential. At the May 13, 2021 meeting, Tomczyk’s opposition speech did not merely identify concerns with the provisions of the Community for All resolution, but his rebuke was also directed at members of the county board for what he claimed was a “failure of leadership.” Tomczyk further asserted that the Community for All resolution’s stated effort to make the county “an open, inclusive, and diverse place to live and work” was implausible, questioning how the county board would accomplish this task because “you are not that important.” He concluded by proclaiming, “If I sound annoyed, you are correct. I expect better from our local government.”

Tomczyk also spoke out against the resolution at the August 12, 2021 meeting. Again, his remarks were aimed primarily at the county board members, claiming that the board was “continuing to allow a charade to persist” and referring to members of the county diversity commission as “fools.”

Importantly, Tomczyk’s involvement in the Community for All debate followed closely his involvement in organizing and promoting numerous community protests against COVID-19 pandemic measures and vaccinations. At least some of those protests were held at Tomczyk’s IROW properties. Further, during this time, he conducted interviews with local news media promoting the protests, and he served on the board of directors of “Get Involved Wisconsin,” an organization founded by Ellefson that “became the lead in organizing and promoting these protests.” According to Tomczyk, to promote his first protest at IROW, he spoke with two local radio stations, which from the context of this statement made during Tomcyzk’s deposition we understand to have been on air, “and after that, it just spread across the state,” resulting in 1,500 to 3,000 people attending the protest.

In addition to his (former) elected position on the school board, Tomczyk had also been involved in local politics and community affairs. According to the record, Tomczyk served as the vice chair of the Republican Party of Marathon County from 2008 until 2015. From 2019 to 2022, Tomczyk also served as a board member of the Greater Wausau Chamber of Commerce. Finally, he served on local boards for youth sports.

Based on these facts, it is clear that Tomczyk voluntarily “thrust” himself “to the forefront of” the Community for All debate “in order to influence the resolution of the issues involved.” He did so by attending the county board meetings and speaking out against both the resolution and the board itself, which brought particular attention to the divisive nature of the controversy and drew more attention to the debate than merely opposing the resolution would have.

Tomczyk’s voice had influence beyond that of a private citizen, and he used that voice, in this instance, to “influence the resolution of the” Community for All debate. While these facts support Wausau Pilot’s claim that Tomczyk was a general purpose public figure, we conclude that they are properly considered when determining whether Tomczyk was a limited purpose public figure as well.

***

Tomczyk also asserts that he “was never an elected official in the summer of 2021 and he never took a vote on the Community for All resolution. His role was limited to that of a concerned citizen.” While Tomczyk’s status as an elected official or as one of the individuals voting on the resolution would likely factor into whether he qualified as a public official, these qualifications are not required of a public figure. In this case, Wausau Pilot does not argue that Tomczyk was a public official at the time of the Community for All debate; thus, we are concerned only with whether Tomczyk was a public figure.

Tomczyk claims that he was merely “a private citizen” and that his attendance and comments at the public county board meetings “cannot transform a private citizen into a public figure.” According to Tomczyk, he “was one of a large group of people who spoke publicly on the Community for All [r]esolution,” and he questions whether the law would now consider “all of them” as limited purpose public figures.

Initially, we note that we cannot simply accept Tomczyk’s conclusory statement that he was a private citizen. As noted above, Tomczyk’s prior involvement in the community and with political issues transformed his voluntary injection into the Community for All debate into something more than participation by a private citizen.

***

Wausau Pilot’s articles focused entirely on the Community for All debate. The articles detailed the divisive viewpoints, as demonstrated at the meetings and in messages received by county board supervisors, and included quotes from multiple individuals in support of the resolution, in opposition to it, and casting accusations at county leadership in response to leadership’s support of the measure. Tomczyk’s alleged use of the slur was reported by Wausau Pilot within that context.

While the public controversy concerned the Community for All resolution, to determine whether the alleged defamation was germane to Tomczyk’s participation in that controversy, it is important to understand the Community for All resolution itself. As best we can determine based on this record, the resolution, according to Siewert, “proposed proclaiming Marathon County as a community for all regardless of gender, color, [or] sexual orientation.” We also presume that the circuit court properly found that “the stated purpose of the ‘Community for All’ resolution was to promote inclusivity,” which means “including everyone” and “especially: allowing and accommodating people who have historically been excluded (as because of their race, gender, sexuality, or ability).”

We conclude that the germaneness test has been met because the allegedly defamatory statements relate to Tomczyk’s role in the public controversy. As noted, the slur allegedly used is an offensive term for a gay person. Accordingly, given that Tomczyk strongly opposed the resolution and that the resolution specifically identified sexual orientation as a consideration, we agree with Wausau Pilot’s assertion that it reported the allegedly defamatory statements “‘in connection with and to emphasize’ the acrimony of the ‘Community for All’ debate and the sharply opposing viewpoints on issues of diversity, which would certainly encompass the use of an anti-gay slur.”

Tomczyk’s allegedly “private” comment was seemingly made public because it was purportedly heard by others at the August 12, 2021 meeting. Tomczyk need not have allegedly said the slur in front of the entire county board meeting for it to be germane to the debate.

***

Given the steps Siewert took to verify the information, her testimony that Salm was a trusted source in the past, and her testimony that she was certain Tomczyk uttered the slur, we cannot conclude that Wausau Pilot knew that the allegation was false or even that it harbored any doubts as to that fact. Whether any of the above items of evidence prove that Tomczyk said the slur or not, and regardless of Tomczyk’s claim that other evidence discovered later suggests that the allegedly defamatory statements were false, Siewert’s investigation demonstrates why Wausau Pilot believed the statements were true and why that belief was not reckless. Tomczyk has not presented any evidence to call that conclusion into question.

***

Tomczyk asserts that “Siewert’s desire to publish an unsourced story was likely colored by her long-running disdain for Tomczyk, a man she has labelled ‘gross,’ an ‘asshole,’ and a ‘dick head.’” As Wausau Pilot identifies, however, “Tomczyk’s characterization of Siewert’s so-called ‘palpable disdain’ for him” does not “come close to meeting the actual malice standard.” We agree with Wausau Pilot that Siewert’s alleged “disdain” for Tomczyk has no bearing on whether she believed that the information contained in the articles was true and, without more, does not establish recklessness.

In summary, Tomczyk, a limited purpose public figure, has not presented evidence by which a reasonable jury could conclude that Wausau Pilot harbored serious doubts about the truth of the publications such that it acted with actual malice in publishing them. Accordingly, Tomczyk’s defamation claim against Wausau Pilot fails.

The Roundup: Three new SCOW briefs filed in Kaul v Urmanski abortion case

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Three more briefs were filed in Kaul v Urmanski this week, each supporting abortion rights in Wisconsin.

We already covered four earlier briefs. You can find those posts by clicking on the "September" link in the list to the right. Those briefs were filed by Attorney General Josh Kaul; Milwaukee County District Attorney John Chisholm; Dane County District Attorney Ismael Ozanne; and intervenor physicians Christopher Ford, Kristin Lyerly, and Jennifer McIntosh.

We are summarizing the new amici briefs in a single round-up, led off by a filing by Madison Mayor Satya Rhodes-Conway; Portage Mayor Mitchel Craig; Verona Mayor Luke Diaz; Eau Claire Alders Aaron Brewster and Larry Mboga; and Sun Prairie Alder Cassi Benedict. The two other new briefs were filed by the Association of Prosecuting Attorneys and a group of medical organizations including the American College of Obstetricians and Gynecologists, American Medical Association, Wisconsin Medical Society, and Society for Maternal-Fetal Medicine.

We are compressing the filings into one post partly in the interest of time an partly because some of their also are in the earlier briefs. The filings have been edited for length and ease of reading.

In this case, Sheboygan County District Attorney Joel Urmanski is appealing Dane County Circuit Judge Diane Diane Schlipper's ruling last year that an 1849 statute outlaws infanticide, not abortions. Urmanski is arguing that the law does apply to abortions and should be enforced in the wake of the U.S. Supreme Court's 2022 decision striking down Roe v Wade.

The case: Kaul v Urmanski

Case no.: 23AP2362

Filed in: Wisconsin Supreme Court (on bypass, skipping the Court of Appeals)

Circuit Judge: Diane Schlipper, Dane County

Brief: Amicus — Local elected officials in Wisconsin

Filing Attorney: Sarah Zylstra

Law firm / agency: Boardman & Clark

Filing Attorney: Joshua Rosenthal and Aadika Singh

Law firm / agency: Public Rights Project

Filing Attorney: Margaret Dale, Jana Ruthberg, and Michael Beckwith

Law firm / agency: Proskauer Rose

In this case, Sheboygan County District Attorney Joel Urmanski is appealing Dane County Circuit Judge Diane Diane Schlipper's ruling last year that an 1849 statute outlaws infanticide, not abortions. Urmanski is arguing that the law does apply to abortions and should be enforced in the wake of the U.S. Supreme Court's 2022 decision striking down Roe v Wade.

Local elected officials' statement of interest

At its core, this case concerns access to healthcare when it is most needed. In no other context are individuals facing significant health risks denied clear and necessary care. Yet, under a misapplication of this statute, pregnant individuals — and only pregnant individuals — could be deprived of life-altering treatment. We are acutely aware of the crucial role abortion access plays in both the health and economic well-being of our communities. In amici’s view, allowing prosecutors and law enforcement to retrospectively second-guess precarious emergency healthcare decisions entangles them in matters they are not equipped to manage. This imposition not only misconstrues the role of law enforcement but also undermines community trust and threatens public safety, impairing the ability of all local elected officials to do our jobs. Amici file this brief to advance our shared interest in maintaining public safety, ensuring confidence in law enforcement, and protecting the health and safety of our communities, including preserving access to essential healthcare.

The officials said the Supreme Court, in State v. Black, ruled that Wis. Stat. § 940.04 prohibits feticide, not consensual abortion. That argument echoes the finding Schlipper made in her ruling.

Introduction

Urmanski’s proposed interpretation is “unworkable in practice,” particularly for the local governments throughout the state that would bear the burden of such an interpretation. Interpreting Wis. Stat. § 940.04 as an abortion ban would result in an unworkable burden on local officials; on institutions struggling to maintain the trust of vulnerable communities; on healthcare providers forced to limit their medical judgment to meet archaic standards; and on law enforcement forced to second-guess those doctors. ...

Interpreting § 940.04 to allow the prosecution of doctors for performing any abortions will — as it has in the past — result in dire consequences for the people of Wisconsin. Doctors will likely face unjustified prosecution and feel pressured to leave the state, or the practice, taking medical care away from the people of Wisconsin. Victims may be unwilling to report crimes that result in pregnancy — sexual assault is already the most under-reported violent crime in the state — for fear of prosecution. And prosecutors will be given the impossible task of trying to discern when an abortion was necessary to save the life of the pregnant person, something on which even trained doctors may not agree. For this reason, many local officials have publicly objected to prosecuting abortion in any form and recognize the disastrous consequences for their communities if they were forced to do so.

Argument

Women engage less with the healthcare system in states that have criminalized abortion post-Dobbs v. Jackson Women's Health Organization. This includes women who have no intention of getting an abortion. And the effect is more pronounced in populations marginalized on account of their wealth or race. The confusion around criminalization chills people from accessing prenatal care. In short, criminalizing decisions or statuses decreases trust and engagement across-the-board, even among those who do not share the impugned status, nor engage in the proscribed decisions.

A lack of public trust also compromises public safety. When abortion is criminalized, pregnant victims of serious crimes may hesitate to cooperate with law enforcement and prosecutors. This undermines efforts to combat serious crimes, such as intimate partner violence. Considering that the rate of people dying because of intimate partner violence is rising in Wisconsin, lack of trust from the citizens prosecutors serve could contribute to serious crimes like these going unreported, undetected, and unpunished.

Many other local officials are impacted by and invested in the interpretation of this statute. ... The Dane County Sheriff seeks to focus his resources on violent crimes, stating that it “does not have the resources nor expertise to investigate medical professionals conducting medical procedures in medical facilities.”

Interfering with healthcare decisions and prosecuting abortion providers also risks further trauma for victims of sexual abuse, rape, incest, trafficking, and domestic violence. Over one million Wisconsin adults have reported experiencing sexual violence of some kind. It is estimated that, since Dobbs, nearly 65,000 pregnancies have been caused by rape in the 14 states where abortion is now banned. Wisconsin citizens deal with painful losses caused by miscarriage or abuse, or voluntary terminations that follow an act of rape, or are due to fetal health issues or health risks posed to the pregnant person. Their trauma would only be compounded by having to process these experiences through the criminal justice system. The threat of prosecution could also be “weaponized by abusers,” who could suggest to law enforcement that a miscarriage was really an illegal abortion. This kind of invasion into the personal sphere is as inappropriate for local actors to have to enforce as it is harmful.

Wisconsin prosecutors, local officials, and members of law enforcement have limited resources and are stretched thin.

Adding an unnecessary, new area of criminal enforcement — complex and controversial abortion cases — to local officials’ already-full plate is not in the best interest of Wisconsin officials, the communities they serve, or the state at large.

Brief: Amicus — American College of Obstetricians and Gynecologists, the American Medical Association, the Wisconsin Medical Society, and the Society for Maternal-Fetal Medicine

Filing Attorney: Breanne Snapp

Law firm / agency: Habush, Habush & Rottier

Filing Attorney: Nicole Saharsky

Law firm / agency: Mayer Brown

Medical organizations' statement of interest

Amici are leading organizations representing physicians and other medical professionals who serve patients in Wisconsin and beyond. Collectively, amici include hundreds of thousands of medical professionals. Among other things, amici advocate for patients and practitioners, educate the public about reproductive health, and work to advance the ethical practice of medicine.

Amici are dedicated to ensuring access to the full spectrum of safe and appropriate health care, and work to preserve the patient-clinician relationship. Patients, in consultation with their health care professionals, should have the autonomy to determine the appropriate course of medical care, based on the medical evidence and the patient’s own individualized needs, medical history and preferences, without undue interference from third parties. Amici oppose laws that would substitute lawmakers’ political agenda for the educated and considered decisions that patients make in consultation with their medical professionals.

Introduction and summary of argument

Abortion care is an essential part of comprehensive health care. When abortion is legal, it is safe. Amici are leading medical societies whose policies represent the education, training, and experience of the vast majority of clinicians in this country. Amici believe that laws that criminalize and effectively ban abortion care are not based on any medical or scientific rationale. Those laws also threaten the health of pregnant patients; disproportionately harm patients of color, patients in rural settings, and patients with low incomes; and profoundly interfere with the patient-physician relationship and undermine longstanding principles of medical ethics.

Since 1973, the Wisconsin Legislature has enacted several statutes that regulate abortion as a lawful medical procedure. Wisconsin Statute § 940.15 permits abortion care up to the point of fetal “viability,” with exceptions to “preserve the life or health of the woman.” Wisconsin Statute § 253.107 prohibits abortion care after 20 weeks except in a “medical emergency.” In light of these statutes, the Circuit Court correctly held that Wisconsin Statute § 940.04 (originally enacted in 1849) applies only to feticide and does not ban impose a near-total ban on abortion care. Amici oppose any interpretation of Section 940.04 that would ban abortion care, because that interpretation would jeopardize the health and safety of pregnant people in Wisconsin and places extreme burdens and risks on providers of essential reproductive health care, without a valid medical justification. Amici urge the Court to affirm.

Argument

The medical evidence conclusively demonstrates that abortion care is very safe. Complication rates are extremely low, averaging around 2%, and most complications are minor and easily treatable. Abortion care is so safe that there is a greater risk of complications or mortality for wisdom-tooth removal, cancer-screening colonoscopy, and plastic surgery.

Abortion care poses no significant risks to mental health or psychological well-being. People who obtain wanted abortion care had “similar or better mental health outcomes than those who were denied a wanted abortion,” and receiving abortion care does not increase the likelihood of developing symptoms associated with depression, anxiety, posttraumatic stress, or suicidal ideation compared to those who were forced to continue a pregnancy. One recent study noted that 95% of participants believed an abortion was the “right decision for them” three years after the procedure.

Statutes that ban or restrict access to abortion care cause severe physical and psychological health consequences for pregnant patients that seek that care. Limited exceptions, such as those that would allow abortion care only when necessary to save the patient’s life, are insufficient to protect the health of pregnant patients.

Criminalizing safe abortion care will result in delays in obtaining abortion care, increased use of unsafe self-managed abortion methods, and an increased likelihood that patients will be forced to continue pregnancies to term. All of these consequences entail significant health risks.

Many delays in seeking abortion care are caused by a lack of information about where to find that care. The need to travel out of state and consider various states’ criminal and civil penalties further increases confusion about where to access needed health care. In addition, almost one-third of delays are caused by travel and procedure costs.

Interpreting Section 940.04 to eliminate licensed abortion clinics and impose a near-total ban on abortion care will increase these costs. Longer travel distances mean higher travel costs, which can cause a patient to delay needed abortion care until later in a pregnancy. Although the risk of complications from abortion care overall remains exceedingly low  — especially compared to the health risks of carrying a pregnancy to term  — increasing gestational age increases the chance of a major complication. Abortion care at later gestational ages also is typically more expensive.

Interpreting Section 940.04 as removing access to safe, legal abortion care would also increase the possibility that a pregnant patient will attempt a self-managed abortion through a harmful or unsafe method.

Patients who do not, or cannot, obtain abortion care will be forced to continue a pregnancy to term — an outcome with significant health risks. The U.S. mortality rate associated with live births from 1998 to 2005 was 8.8 deaths per 100,000 live births, and rates have sharply increased since then. In contrast, the mortality rate associated with abortion care performed from 1998 to 2005 was 0.6 deaths per 100,000 procedures, meaning that a pregnant patient’s risk of death associated with childbirth is approximately 14 times higher than any risk of death from abortion care.

Continued pregnancy and childbirth also entail other substantial health risks. Even an uncomplicated pregnancy causes significant stress on the body. Moreover, continuing a pregnancy to term can exacerbate underlying health conditions or lead to newly arising health issues.

Evidence also suggests that pregnant people denied abortion care are more likely to experience negative psychological health outcomes — like anxiety, lower self-esteem, and lower life satisfaction — than those who obtained needed abortion care.

If Section 940.04 were interpreted to ban abortion care, its sole exception would be insufficient to protect the health of pregnant patients. The exception would allow for abortion care if it “is necessary . . . to save the life of ” the patient. The law does not define “necessary.” The law does not include any exceptions for cases of threats to the patient’s health, or for rape, incest, or fetal abnormalities.

The narrow exception in Section 940.04 applies only when “necessary” to save the patient’s life. Coupled with the threat of criminal sanctions, interpreting this statute to cover abortion care necessarily will chill the provision of critical medical care ... because doctors will be unsure when they will be able to provide needed abortion care for their patients. It is untenable to force pregnant patients to wait to obtain abortion care until their medical condition escalates to the point that abortion care is necessary to prevent death. Further confusion will arise when doctors manage early pregnancy loss. For example, incomplete miscarriages are commonly treated via uterine aspiration, which is an abortion. But Section 940.04 does not clearly state that miscarriage management is permissible.

Physicians should not be put in the impossible position of either letting a patient deteriorate until death is possible or facing potential criminal punishment for providing needed care consistent with their medical judgment but still potentially in contravention of Section 940.04. ... Decisions about whether to continue a pregnancy are properly left to clinicians and patients, rather than legislators. Legislators are not and should not be in the exam room, and do not have the training or experience to exercise medical judgment to evaluate complex or developing situations and recommend a course of treatment. Interpreting Section 940.04 to cover abortion care would indefensibly jeopardize patients’ health.

Patients with limited means and patients living in geographically remote areas will be disproportionately affected by Section 940.04, which will require them to travel longer distances (and pay higher associated costs) to obtain safe, legal abortion care. These travel and procedure costs will be compounded by the fact that other Wisconsin laws create substantial financial barriers to abortion care, such as lack of coverage under insurance policies for public employees and health plans offered in the state’s health exchange, except in cases of life endangerment, severely compromised health, or rape or incest.

Brief: Amicus  — Association of Prosecuting Attorneys

Filing Attorneys: Tamar Kelber and Jerome Mohsen

Law firm / agency: Gass Turek

Association's statement of interest

The Association of Prosecuting Attorneys (“APA”) is a national nonprofit organization created by prosecutors from across the country to strengthen their efforts in ensuring safer communities and improving their performance in the criminal justice system.

The APA files this brief in support of Respondents to explain that (1) prosecutorial discretion is essential to a strong judicial system and strong communities, and therefore, the APA has an interest in ensuring that prosecutorial discretion is defined and used appropriately, (2) the use of prosecutorial discretion does not apply to the issues in this case where consensual abortion is not covered by Wis. Stat. § 940.04, and (3) this Court should affirm the Dane County Circuit Decision and Order declaring Wis. Stat. § 940.04 does not apply to abortions.

Argument

Here — where the issue before the Court is the interpretation of a clear and unambiguous statute — prosecutorial discretion is not relevant. Wis. Stat. § 940.04 is a feticide statute which does not apply to consensual abortion.

Prosecutors serve the public interest by pursuing criminal charges with adequate severity and by exercising discretion to not pursue charges when appropriate. The National District Attorney Association standards direct prosecutors to “screen potential charges to eliminate from the criminal justice system those cases where prosecution is not justified or not.

It is important for the court to be clear that respondent Urmanski’s convoluted statutory interpretation is not an exercise of prosecutorial discretion. To hold otherwise would be to erode the foundation of the role prosecutors play in appropriately exercising discretion.