Annotated Wisconsin Constitution

XIII,12(4)(a) (a) When more than 2 persons compete for a nonpartisan office, a recall primary shall be held. The 2 persons receiving the highest number of votes in the recall primary shall be the 2 candidates in the recall election, except that if any candidate receives a majority of the total number of votes cast in the recall primary, that candidate shall assume the office for the remainder of the term and a recall election shall not be held.

XIII,12(4)(b) (b) For any partisan office, a recall primary shall be held for each political party which is by law entitled to a separate ballot and from which more than one candidate competes for the party’s nomination in the recall election. The person receiving the highest number of votes in the recall primary for each political party shall be that party’s candidate in the recall election. Independent candidates and candidates representing political parties not entitled by law to a separate ballot shall be shown on the ballot for the recall election only.

XIII,12(4)(c) (c) When a recall primary is required, the date specified under sub. (2) shall be the date of the recall primary and the recall election shall be held on the Tuesday of the 4th week after the recall primary or, if that Tuesday is a legal holiday, on the first day after that Tuesday which is not a legal holiday.

XIII,12(5) (5) The person who receives the highest number of votes in the recall election shall be elected for the remainder of the term.

XIII,12(6) (6) After one such petition and recall election, no further recall petition shall be filed against the same officer during the term for which he was elected.

XIII,12(7) (7) This section shall be self-executing and mandatory. Laws may be enacted to facilitate its operation but no law shall be enacted to hamper, restrict or impair the right of recall. [1923 J.R. 73, 1925 J.R. 16, 1925 c. 270, vote Nov. 1926; 1979 J.R. 41, 1981 J.R. 6, vote April 1981]

The recall of city officials is of statutory origin. Beckstrom v. Kornsi, 63 Wis. 2d 375, 217 N.W.2d 283 (1974).

This section applies to members of Congress. 68 Atty. Gen. 140.

This section requires a separate petition for the recall of each individual incumbent elective officer. A petition for the recall of an incumbent governor under sub. (1) requires the filing officer to call a recall election for that incumbent’s office, provided that the terms of this section have been met. A recall election of a lieutenant governor shall be called only if a petition for recall is filed for that incumbent elected officer, in which case voters shall vote separately for that office. OAG 4-11.

XIII,13 Marriage. Section 13. [As created Nov. 2006] Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state. [2003 J.R. 29, 2005 J.R. 30, vote Nov. 2006]

NOTE: In Wolf v. Walker, Case No. 14-cv-64-bbc, the United States District Court for the Western District of Wisconsin declared that “art. XIII, § 13 of the Wisconsin Constitution violates plaintiffs’ fundamental right to marry and their right to equal protection of laws under the Fourteenth Amendment to the United States Constitution.” Affirmed. 766 F.3d 648. U.S. Seventh Circuit Court of Appeals, Case No. 14-2526, issued September 4, 2014.

The two propositions contained in the amendment creating this section plainly relate to the subject of marriage. The general purpose of the marriage amendment is to preserve the legal status of marriage as between only one man and one woman. Both propositions in the marriage amendment relate to and are connected with this purpose. Therefore, the marriage amendment does not violate the separate amendment rule of article XII, section 1. McConkey v. Van Hollen, 2010 WI 57, 326 Wis. 2d 1; 783 N.W.2d 855, 08-1868.

Chapter 770, the domestic partnership law, is constitutional, based on the presumption of constitutionality, the plaintiffs’ failure to meet the burden of proof, and the evidence reviewed. The plain language of the amendment prohibits only a status “identical or substantially similar to” marriage, and by implication it does not prohibit what is not identical or substantially similar thereto. There are important statutory distinctions in the way the state treats marriage and domestic partnerships and important differences in the lists of benefits and obligations that inhere in the two types of relationships. Appling v. Walker, 2014 WI 96, 358 Wis. 2d 132, 853 N.W.2d 888, 11-1572.

Same-sex couples may exercise the fundamental right to marry in all states. The right to marry is a fundamental right inherent in the liberty of the person, and under the due process and equal protection clauses of the 14th amendment couples of the same-sex may not be deprived of that right and that liberty. Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).

There is no lawful basis for a state to refuse to recognize a lawful same-sex marriage performed in another state on the ground of its same-sex character. Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).

Same-Sex Divorce and Wisconsin Courts: Imperfect Harmony? Thorson. 92 MLR 617 (2009).

XIV ARTICLE XIV.

SCHEDULE

XIV,1 Effect of change from territory to state. Section 1. That no inconvenience may arise by reason of a change from a territorial to a permanent state government, it is declared that all rights, actions, prosecutions, judgments, claims and contracts, as well of individuals as of bodies corporate, shall continue as if no such change had taken place; and all process which may be issued under the authority of the territory of Wisconsin previous to its admission into the union of the United States shall be as valid as if issued in the name of the state.

XIV,2 Territorial laws continued. Section 2. All laws now in force in the territory of Wisconsin which are not repugnant to this constitution shall remain in force until they expire by their own limitation or be altered or repealed by the legislature.

XIV,3 Territorial fines accrue to state. Section 3. [Repealed Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]

XIV,4 Rights of action and prosecutions saved. Section 4. [Repealed Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]

XIV,5 Existing officers hold over. Section 5. [Repealed Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]

XIV,6 Seat of government. Section 6. [Repealed Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]

XIV,7 Local officers hold over. Section 7. [Repealed Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]

XIV,8 Copy of constitution for president. Section 8. [Repealed Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]

XIV,9 Ratification of constitution; election of officers. Section 9. [Repealed Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]

XIV,10 Congressional apportionment. Section 10. [Repealed Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]

XIV,11 First elections. Section 11. [Repealed Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]

XIV,12 Legislative apportionment. Section 12. [Repealed Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]

XIV,13 Common law continued in force. Section 13. Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature.

Enactment of s. 905.01 is an alteration or suspension of the common law. Davison v. St. Paul Fire & Marine Insurance Co., 75 Wis. 2d 190, 248 N.W.2d 433 (1977).

The common law privilege to forcibly resist an unlawful arrest is abrogated. State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998), 96-0914.

This section does not codify English common law circa 1776, but preserves law that by historical understanding is subject to continuing evolution under the judicial power. The supreme court court has authority not only to alter but also to abrogate the common law when appropriate. The court’s responsibility for altering or abolishing a common law rule does not end due to legislative failure to enact a statute to the contrary. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.

XIV,14 Officers, when to enter on duties. Section 14. [Repealed Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]

XIV,15 Oath of office. Section 15. [Repealed Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]

XIV,16 Implementing revised structure of judicial branch. Section 16. [As created April 1977; as affected Nov. 1982, (1), (2), (3), and (5) repealed.]

XIV,16(4) (4) [Amended Nov. 1982] The terms of office of justices of the supreme court serving on August 1, 1978, shall expire on the July 31 next preceding the first Monday in January on which such terms would otherwise have expired, but such advancement of the date of term expiration shall not impair any retirement rights vested in any such justice if the term had expired on the first Monday in January. [1975 J.R. 13, 1977 J.R. 7, vote April 1977; 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982]