MADISON, Wis. — Law Forward filed an amicus brief with the Wisconsin Court of Appeals this week in Dunn v. Public Service Commission of Wisconsin, urging the court to reverse a Dane County Circuit Court decision that dismissed a novel challenge under the Wisconsin Constitution by relying on a federal legal doctrine with no footing in Wisconsin law.

The case was brought by a group of young Wisconsinites, represented by Midwest Environmental Advocates and Our Children’s Trust, who argue that several state energy laws violate their rights under the Wisconsin Constitution. The Dane County Circuit Court dismissed the case without deciding whether those laws are constitutional, solely on the basis that it raised a “political question” that does not belong in court.

Law Forward’s brief does not address the merits of this case, but focuses instead on the far-reaching consequences of this procedural decision. If upheld, it would mean that Wisconsin courts can refuse to decide state constitutional challenges by importing the “political question doctrine,” a rule developed under the U.S. Constitution for federal courts, which are designed to function very differently than Wisconsin courts do.

“The Wisconsin Constitution promises every person a remedy in the law. That promise means nothing if courts can wave away constitutional challenges whenever a case touches on politics. Wisconsin courts must decide hard questions, not look for reasons to close the door,” said Kacy Gurwitz, Law Forward Staff Counsel. “Nearly every case about the health of Wisconsin democracy has political consequences, whether it’s a challenge to unconstitutional legislative maps, election rules, or school funding. If ‘political question’ becomes a reason to dismiss, those cases never get heard, and Wisconsinites are left without a remedy when their rights are violated.”

“If allowed to stand, the Dunn decision would significantly curtail impact litigation in Wisconsin’s state courts and shut Wisconsinites out of cases the state constitution guarantees they can bring,” said Jeff Mandell, Law Forward’s President and General Counsel. 

Wisconsin courts have general jurisdiction over “all matters civil and criminal,” far broader than the limited jurisdiction granted to federal courts. Wisconsin’s rules on who can bring a lawsuit are more generous, and our state constitution guarantees “every person” a “remedy in the laws for all injuries, or wrongs.” Since 1860, the Wisconsin Supreme Court has held that reviewing the constitutionality of the Legislature’s acts is among the “highest duties” of the courts.

In this case and others Wisconsin courts have cited the federal doctrine without examining whether it’s consistent with state law. This appeal presents the Court of Appeals an opportunity to remedy this situation. 

Read the full brief here.