¶ 1 MICHAEL J. GABLEMAN, J.
In November 2006, the people of Wisconsin approved the adoption of the following amendment to the Wisconsin Constitution:
¶ 2 In July 2007, William McConkey, a voter and taxpayer, filed suit alleging, among other things, that this amendment (the "marriage amendment") was submitted to the people in violation of the constitution's requirement that voters must be allowed to vote separately on separate amendments (the "separate amendment rule"). In other words, McConkey claimed that the two sentences of the marriage amendment constituted two amendments, not one, and that because voters were not able to vote for or against each sentence, the marriage amendment was not validly adopted. The Attorney General countered that McConkey did not have standing to bring this claim because he suffered no
¶ 3 The Dane County Circuit Court, Richard G. Niess, Judge, held that McConkey did have standing to bring suit because, assuming his claims are true, his rights as a voter were violated. Regarding the substance of his claim, the circuit court held that the two sentences of the amendment related to the same subject and furthered the same general purpose. Therefore, the two sentences constituted only one amendment. The court of appeals certified the case to this court, and we accepted review.
¶ 4 The two issues before us are:
¶ 5 Though the precise nature of McConkey's alleged injury is difficult to define, we conclude that the policy considerations underlying our standing doctrine support addressing the merits of McConkey's claim, which we therefore choose to do.
¶ 6 We hold that Article XIII, Section 13 of the Wisconsin Constitution—the marriage amendment—was adopted in conformity with the separate amendment rule in Article XII, Section 1 of the Wisconsin Constitution, which mandates that voters must be able to vote separately on separate amendments. Both sentences of the marriage amendment relate to marriage and tend to effect or carry out the same general purpose of preserving the legal status of marriage in Wisconsin as between only one man and one woman.
¶ 7 During both the 2003 and 2005 sessions, the Wisconsin State Assembly and Senate adopted a joint resolution to amend the Wisconsin Constitution. Though the 2003 and 2005 versions contained minor procedural variations, the text of the resolution itself was identical. Both versions of the resolution contained what the parties have referred to as the title: "
¶ 8 Because the joint resolution was passed by two successive legislatures, the amendment was submitted to the people for ratification.
On November 7, 2006, Wisconsin voters approved this amendment by a vote of 59 percent to 41 percent.
¶ 9 William McConkey is a registered voter and taxpayer who opposed both propositions contained in the marriage amendment and voted against it. He filed suit on July 27, 2007, challenging the marriage amendment on the grounds that it violated the due process and equal protection guarantees in the Wisconsin and United States Constitutions, and on the grounds that it was adopted in violation of the separate amendment rule in Article XII, Section 1 of the Wisconsin Constitution. The Attorney General countered that McConkey suffered no actual injury and therefore did not have standing to bring any of his claims. The Attorney General further argued that neither the substance of the amendment nor the process by which it was adopted violated the state or federal constitutions.
¶ 10 On a motion to dismiss by the Attorney General, the Dane County Circuit Court, Richard G. Niess, Judge, held that McConkey did not have standing to bring his due process and equal protection claims, but did have standing as a voter to challenge the process by which the amendment was adopted. If an amendment were invalidly submitted to voters, the circuit court reasoned, all voters were injured no matter how an individual would have voted had the different propositions been submitted separately. On the merits of McConkey's claim, the court held that the marriage amendment satisfied the requirements of the separate amendment rule, explaining that both propositions related to the subject matter of marriage and were designed to accomplish the same purpose: "the preservation and protection of the unique and historical status of traditional marriage."
¶ 11 McConkey appealed, challenging the circuit court's holding on the merits of his separate amendment rule challenge.
II. STANDARD OF REVIEW
¶ 12 Whether a party has proper standing to bring suit is a question of law that we review de novo. Krier v. Vilione, 2009 WI 45, ¶ 14, 317 Wis.2d 288, 766 N.W.2d 517. Whether an amendment to the Wisconsin Constitution was adopted in conformity with the proper procedures is also a question of law that we review de novo. Milwaukee Alliance v. Elections Bd., 106 Wis.2d 593, 604, 317 N.W.2d 420 (1982).
¶ 13 Before we can address the merits of McConkey's challenge, we must first confirm
A. Does McConkey Have Standing?
¶ 14 The Attorney General argues that McConkey does not have standing to challenge the marriage amendment. He asserts that because McConkey would have voted "no" on both propositions, which McConkey concedes is true, he suffered no actual injury to a legally protectable interest.
¶ 15 As a general matter, a litigant advancing a constitutional claim must have suffered an actual injury to a legally protected interest. See State ex rel. First Nat'l Bank v. M & I Peoples Bank, 95 Wis.2d 303, 308, 290 N.W.2d 321 (1980). The law of standing in Wisconsin is construed liberally, and "even an injury to a trifling interest" may suffice. Fox v. DHSS, 112 Wis.2d 514, 524, 334 N.W.2d 532 (1983). Unlike in federal courts, which can only hear "cases" or "controversies,"
¶ 16 Standing requirements in Wisconsin are aimed at ensuring that the issues and arguments presented will be carefully developed and zealously argued, as well as informing the court of the consequences of its decision. See Moedern v. McGinnis, 70 Wis.2d 1056, 1064, 236 N.W.2d 240 (1975) ("[T]he gist of the requirements relating to standing . . . is to assure that the party seeking relief has alleged such a personal stake in the outcome of the controversy as to give rise to that adverseness necessary to sharpen the presentation of issues for illumination of constitutional questions."); In re Carl F.S., 2001 WI App 97, ¶ 5, 242 Wis.2d 605, 626 N.W.2d 330 (2001) ("The purpose of the requirement of standing is to ensure that a concrete case informs the court of the consequences of its decision and that people who are directly concerned and are truly adverse will genuinely present opposing petitions to the court.").
¶ 17 We sympathize with the argument that all voters are harmed by an amendment invalidly submitted to the people. Still, it is difficult to determine the precise nature of the injury here, and we are troubled by the broad general voter standing articulated by the circuit court. However, whether as a matter of judicial policy, or because McConkey has at least a trifling interest in his voting rights, we believe the unique circumstances of this case render the merits of McConkey's claim fit for adjudication.
¶ 18 Numerous reasons support our conclusion. First, McConkey has competently
¶ 19 Because we conclude that the merits of McConkey's claim are fit for consideration, we now move to the substance of his claim.
B. Was the Marriage Amendment Adopted in Violation of the Separate Amendment Rule?
¶ 20 Article XII of the Wisconsin Constitution defines the procedures for amending the constitution. Section 1 provides that a proposed amendment passed by each house in successive legislatures is to be submitted "to the people in such manner and at such time as the legislature shall prescribe." Wis. Const. art. XII, § 1. It further specifies that if a majority of the voters approve the amendment, it shall become part of the constitution "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." Id. This is the separate amendment rule.
¶ 21 After passage by both houses in two successive legislatures and approval by voters in a referendum on November 7, 2006, Section 13 of Article XIII of the Wisconsin Constitution was created to read:
This is the marriage amendment.
¶ 22 McConkey argues that the marriage amendment was adopted in violation of the separate amendment rule. Specifically, McConkey argues that the marriage amendment is comprised of two amendments that should have been presented to the voters separately, and that because it was not so presented, the marriage amendment was not properly adopted and is invalid, i.e., not currently part of the Wisconsin Constitution.
¶ 23 To be clear, the question before us is not whether the marriage amendment is good public policy or bad public policy, nor is its interpretation or application before us today. The issue before us is whether the marriage amendment was adopted in conformity with the constitutional requirement that the people be allowed to vote separately on separate amendments. See Milwaukee Alliance, 106 Wis.2d at 602, 317 N.W.2d 420 ("What is not before this court is the wisdom or constitutionality of
¶ 24 We begin our analysis in Part 1 by reviewing the text of the constitution's separate amendment rule and the three prior cases that have applied it. In Part 2, we define the test for determining whether an amendment violates the separate amendment rule. Finally, in Part 3, we apply the test to McConkey's challenge of the marriage amendment in this case.
1. The Constitution and Prior Case Law
¶ 25 Article XII, Section 1 states that amendments may be submitted to the people "in such manner . . . as the legislature shall prescribe." Thus, the constitution assigns considerable authority and discretion to the legislature in the way it submits amendments to the people for a vote. Our inquiry is "whether the legislature in the formation of the question acted reasonably and within their constitutional grant of authority and discretion." Milwaukee Alliance, 106 Wis.2d at 604, 317 N.W.2d 420.
¶ 26 This is not to say the legislature's discretion is without limit. The constitution is clear that the people must be able to vote for or against each amendment "if more than one amendment be submitted." Wis. Const. art. XII, § 1 (emphasis added). On its face, this language does not prohibit a single constitutional amendment from being complex or multifaceted, or from containing a variety of specific prescriptions and proscriptions. The constitutional text suggests that the separate amendment rule is implicated only when the substance of an amendment cannot be said to constitute a single amendment.
¶ 27 Our case law affirms this understanding. This court has examined whether a constitutional amendment violates the separate amendment rule on three prior occasions. Each merits discussion.
¶ 28 This court first encountered a separate amendment rule challenge in State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N.W. 785 (1882). In that case, the constitutional amendment contained four distinct propositions: (1) members of the Assembly would serve two-year terms instead of one-year terms, and be elected from single districts; (2) senators would serve four-year terms instead of two-year terms, and be elected alternately in odd and even numbered districts every two years; (3) the legislature would meet no more than once every two years; and (4) legislative salaries would increase to $500. Id. at 326, 11 N.W. 785.
¶ 29 We rejected as absurd the contention that each distinct proposition must be submitted separately. Such an approach would make amending the constitution unduly difficult, especially for complex issues or when an overall change might be impossible to effectuate if the voters could choose to adopt certain parts of the proposed amendment and not others. Id. at 335-36, 11 N.W. 785.
¶ 30 Instead, we construed the separate amendment rule to require separate votes on "amendments which have different objects and purposes in view." Id. at 336, 11 N.W. 785. As such, we stated the following test: "In order to constitute more than one amendment, the propositions submitted must relate to more than one subject, and have at least two distinct and separate purposes not dependent upon or connected with each other." Id.
¶ 31 Applying this test to the facts of the case then before us, we concluded that all of the propositions related to the purpose of changing from annual to biennial sessions of the legislature. Id. Most interesting and relevant to McConkey's claim was our discussion of the legislative pay raise. This proposition was "less intimately and necessarily connected with the change to biennial sessions, yet it was clearly connected
¶ 32 Our opinion went further and discussed other amendments that had been adopted. Article IV, Section 31 (since amended twice), for example, prohibited the legislature from passing special or private laws in nine different circumstances, and required the legislature to enact general laws for anything not prohibited by the amendment. Id. at 337-38, 11 N.W. 785. We noted that this amendment was far more open to challenge than the change from an annual to biennial legislature, but no one thought to challenge its validity. Id. Even so, we stated that the amendment constituted a single amendment. Id. at 338, 11 N.W. 785. The general purpose of the amendment was to "restrict the power of the legislature in the matter of enacting special and private laws." Id. Again we stated that while each of the specifically prohibited types of private or special laws could have been submitted separately, the legislature had the discretion to submit them together. Id. In fact, all of the seven amendments that had been adopted up to that point were subject to similar objections, we explained, but all were acceptable because they had "one general purpose in view." Id. at 339, 11 N.W. 785. All of the propositions in each "were connected with and intended to carry into effect" the one general purpose. Id.
¶ 33 We addressed the separate amendment rule again (among other issues) in State ex rel. Thomson v. Zimmerman, 264 Wis. 644, 60 N.W.2d 416 (1953). In that case, a constitutional amendment approved by the people made the following changes: (1) State Senate districts were to be created taking land area and population into account, not just population; (2) military personnel and "Indians not taxed," who were previously not counted in creating Senate and Assembly districts, were now to be counted; (3) Assembly districts were to be created using town, village, and ward lines, where previously they were to include county, precinct, town, and ward lines; and (4) Assembly districts no longer needed to fall entirely within a single Senate district. Id. at 653-54, 60 N.W.2d 416. The referendum question submitted to voters asked: "Shall sections 3, 4 and 5 of article IV of the constitution be amended so that the legislature shall apportion, along town, village or ward lines, the senate districts on the basis of area and population and the assembly districts according to population?" Id. at 651, 60 N.W.2d 416.
¶ 34 The Attorney General argued that the amendment followed the requirements announced in Hudd because all of the provisions were "necessary, or at least convenient and proper, for the accomplishment of the main purpose" of taking area as well as population into account in apportioning Senate districts. Id. at 656, 60 N.W.2d 416. The Thomson court accepted without discussion
¶ 35 The most recent case challenging an amendment under the separate amendment rule is Milwaukee Alliance v. Elections Bd., 106 Wis.2d 593, 317 N.W.2d 420 (1982). In that case, the amendment contained a series of changes to Article I, Section 8 permitting courts to deny or revoke bail for certain accused persons, and allowing courts to set conditions for release—bail among them—for the purposes of assuring the accused person's appearance in court, protecting the community, or preventing intimidation of witnesses. Id. at 602, 317 N.W.2d 420. The changes included both general statements of a court's power, as well as specific conditions tied to certain crimes. Id. at 601, 317 N.W.2d 420.
¶ 36 In that case, the issue was "whether the legislature in the formation of the question acted reasonably and within their constitutional grant of authority and discretion." Id. at 604, 317 N.W.2d 420. Citing Hudd, we asserted, "It is within the discretion of the legislature to submit several distinct propositions as one amendment if they relate to the same subject matter and are designed to accomplish one general purpose." Id. at 604-05, 317 N.W.2d 420.
¶ 37 We explained that the purpose of the amendment was "to change the constitutional provision from the limited concept of bail to the concept of `conditional release.'"
2. Defining the Test
¶ 38 This is the fourth case challenging the validity of an amendment under the separate amendment rule. The dispute between the parties can be broken down into three issues. First, the parties disagree about the proper way to test the validity of an amendment under the separate amendment rule. Second, while both parties agree that the general purpose of the amendment is an important element of the test, they diverge over the method the court should use to determine the purpose. And third, the parties disagree over how the amendment in this case fares under the applicable test.
¶ 39 First, the parties offer dramatically different versions of the operative test arising from these cases. McConkey focuses on the anti-logrolling purpose
¶ 40 We agree with the Attorney General. We reaffirm this court's repeated holdings that the constitution grants the legislature considerable discretion in the manner in which amendments are drafted and submitted to the people. The inquiry is "whether the legislature in the formation of the question acted reasonably and within their constitutional grant of authority and discretion." Milwaukee Alliance, 106 Wis.2d at 604, 317 N.W.2d 420. An otherwise valid amendment will therefore be construed as more than one amendment only in exceedingly rare circumstances.
¶ 41 The proper test is laid out in Milwaukee Alliance: "It is within the discretion of the legislature to submit several distinct propositions as one amendment if they relate to the same subject matter and are designed to accomplish one general purpose." Id. at 604-05, 317 N.W.2d 420. As we stated in Thomson, all of the propositions must "tend to effect or carry out" the purpose. Thomson, 264 Wis. at 656, 60 N.W.2d 416.
¶ 42 McConkey's position is inconsistent with the constitution's grant of discretion to the legislature, and is irreconcilable with these prior holdings. The distinct propositions need not be, as McConkey urges, interconnected and dependent upon one another such that if one proposition failed, the total purpose would be destroyed. While Hudd uses the phrase "dependent upon," the Hudd court did not use it to suggest an interdependency requirement as McConkey asserts. Instead, Hudd established the principle
¶ 43 This, of course, raises the second issue on which the parties spend considerable time—how should the general purpose of an amendment be determined? McConkey proposes that the best method for determining the purpose is to look to the "relating to" clause in the title of the joint resolution. In this case, the joint resolution states the amendment relates to "providing that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state." Going further, McConkey argues that this is the only source the court can use to determine purpose. This approach, he asserts, is consistent with the approach used in Article IV, Section 18 of the Wisconsin Constitution
¶ 45 This appears to have been the general approach followed in Hudd. In that case, this court identified the four propositions contained in the amendment from its text, and the general move from an annual to biennial legislature was apparent. The amendment was also known to the public as the "biennial sessions amendment." Hudd, 54 Wis. at 325, 11 N.W. 785.
¶ 46 In Milwaukee Alliance, the court described the purpose of the amendment with particularity:
Milwaukee Alliance, 106 Wis.2d at 608, 317 N.W.2d 420. This purpose appears to be gleaned from the text of the amendment. The court also described a general purpose of changing "from the limited concept of bail to the concept of `conditional release.'" Id. at 607, 317 N.W.2d 420. The court appeared to decipher this purpose by comparing the previous constitutional structure with the provisions in the new amendment.
¶ 47 The method for determining the purpose advocated by McConkey—adopting verbatim the "relating to" clause in the title of the joint resolution—is supported neither by case law nor by common sense. None of our cases follow McConkey's approach. Neither Hudd nor Thomson even discuss the title of the joint resolution. In Milwaukee Alliance, we noted the statement of purpose contained in the title of the joint resolution, but did not adopt it as McConkey suggests we must do here.
¶ 48 McConkey's analogies to the restrictions on private bills in Article IV, Section 18 are also inapposite. The text of that provision itself states that private or local bills may encompass only one subject, "and that shall be expressed in the title." Wis. Const. art. IV, § 18. The separate amendment rule, however, contains no similar stricture, strongly suggesting the joint resolution's title should not be the conclusive, much less exclusive, statement of purpose. See Weber v. Town of Saukville, 209 Wis.2d 214, 231, 562 N.W.2d 412 (1997) (stating the rule of construction that when the terminology of similar provisions is different, an inference is drawn that different meanings are intended).
¶ 50 In summary, "It is within the discretion of the legislature to submit several distinct propositions as one amendment if they relate to the same subject matter and are designed to accomplish one general purpose." Milwaukee Alliance, 106 Wis.2d at 604-05, 317 N.W.2d 420. The general purpose of an amendment may be deduced from the text of the amendment itself and from the historical context in which the amendment was adopted. And all of the propositions must "tend to effect or carry out" that purpose. Thomson, 264 Wis. at 656, 60 N.W.2d 416.
3. Applying the Test
¶ 51 The marriage amendment contains two propositions: (1) "Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state"; and (2) "A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state." The text of this amendment and historical context in which it was adopted make its general subject and purpose plain.
¶ 52 A plain reading of the text of the amendment, in which both propositions expressly refer to "marriage," makes clear that the general subject of the amendment is marriage. McConkey does not seem to dispute this point.
¶ 53 Before the marriage amendment was adopted, marriage in Wisconsin was already limited by statute to the unions of one man and one woman. See Wis. Stat. § 765.001(2) (2005-06)
¶ 55 Why preserve the status quo through a constitutional amendment? This is no secret either. The sponsors of the amendment were quite clear that state supreme court decisions overturning the marriage laws of other states were the primary reason for the amendment.
¶ 56 To conclude, the two propositions contained in the marriage amendment plainly relate to the subject of marriage.
¶ 57 In summary, though the precise nature of McConkey's alleged injury is difficult to define, we conclude that the policy considerations underlying our standing doctrine support addressing the merits of McConkey's claim, which we therefore choose to do.
¶ 58 We hold that Article XIII, Section 13 of the Wisconsin Constitution—the marriage amendment—was adopted in conformity with the separate amendment rule in Article XII, Section 1 of the Wisconsin Constitution, which mandates that voters must be able to vote separately on separate amendments. Both sentences of the marriage amendment relate to marriage and tend to effect or carry out the same general purpose of preserving the legal status of marriage in Wisconsin as between only one man and one woman.
The judgment and order of the circuit court are Affirmed.
Milwaukee Alliance, 106 Wis.2d at 607, 317 N.W.2d 420.