Feb. 18, 2025 – “Aggrieved” meant something different to the Wisconsin Supreme Court majority and dissent in Brown v. Wisconsin Elections Commission (WEC), 2025 WI 5 (Feb. 18, 2025), leaving a citizen who complained to the WEC about the city of Racine’s alternate absentee voting sites without judicial review.
In an opinion written by Justice Jill J. Karofsky, the 4-3 majority held that the standard definition of “aggrieved,” unless the Legislature specifies differently, required an individual have “an interest recognized by law in the subject matter which is injuriously affected by the judgment.” As a result, Kenneth Brown lacked standing.
Although the dissenting justices did not join all of Justice Rebecca Grassl Bradley’s dissent, Chief Justice Annette Kingsland Ziegler and Justice Brian Hagedorn agreed with her that Brown “has a legal right protected by Wis. Stat. § 5.06 to have local election officials in his area comply with the law.”
The decision leaves unresolved whether Racine’s election practices complied with law.
Racine Alternate Voting Sites
Brown complained to the WEC about two of the Racine City Clerk’s alternate voting sites used for in-person absentee voting that he saw on Aug. 3, 2022, for a primary election. One voting site was in City Hall, and the other was a “mobile election unit” stationed for three hours at a local mall. The WEC found no probable cause that the city clerk broke the law and declined to act further.
Brown appealed to Racine County Circuit Court, which granted Brown standing and agreed with two of his contentions that the voting sites violated Wis. Stat. section 6.855. The alternate sites gave “an advantage to any political party” and improperly used a mobile election unit.
The circuit court denied Brown’s three other alleged violations: the “alternate sites were not ‘as near as practicable’” to the clerk’s office, the “‘function[s] related to voting and return of absentee ballots’ were impermissibly conducted in the same building as the clerk’s office,” and “the alternate sites were not designated for the appropriate time period.”
WEC appealed the circuit court decision and petitioned to bypass the court of appeals. The supreme court granted bypass.
Majority Stops at Standing
All five of Brown’s contentions remained at issue before the supreme court, but the threshold issue was whether Brown has standing to sue after the WEC found no probable cause of a violation.
Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.
Standing to appeal relies on Wis. Stat. section 5.06(8), which provides that any “complainant who is aggrieved by an order issued” by the WEC “may appeal the decision of the commission to circuit court for the county where the official conducts business or the complainant resides no later than 30 days after issuance of the order.”
The analysis did not end there. According to the majority, “‘aggrieved’ is a term of art” common in statutes, and caselaw requires “such language is to be interpreted consistently across statutes,” unless the Legislature drafts otherwise.
By that analysis, “[a] person is aggrieved by a decision when she or he has ‘an interest recognized by law in the subject matter which is injuriously affected by the judgment’” – “an injury to a legally recognized interest.”
In the absence of a definition for “aggrieved” in the statute, Brown lacks standing because he “does not allege that WEC’s decision personally affected him,” the majority held. For example, Brown did not argue that Racine’s conduct of the election “made it more difficult for him to vote” or even that the voting sites diluted his vote by allowing “unlawful voting.”
Brown argued “that a complainant is always aggrieved under § 5.06(8) when she or he believes that a local election official engaged in unlawful activity.” Under Brown’s argument, Wis. Stat. section 5.06(1) “establishes a general statutory right for an elector to compel her or his election officials to comply with the law.”
The majority found only the elector’s right to file a complaint with WEC. Any right for judicial review the Legislature distinguished under Wis. Stat. section 5.06(8), which fails to grant judicial review broadly. The right can’t be implied here. “[T]he right to complain to an administrative agency … does not automatically entail the right” for judicial review.
Brown also claimed “an elector always suffers an injury when WEC rules against the elector” because the complainant “‘received an unfavorable result from WEC.’” The majority rebutted the argument as reading “the words ‘aggrieved by an order’ out of the statute.” The majority reiterated that “an adverse administrative decision does not, by itself” grant standing to sue.
The majority acknowledged a court of appeals case, Hess v. WEC, 2024 WI App 46 (July 30, 2024) held that “a complainant is automatically aggrieved within the meaning of § 5.06(8) when WEC dismisses her or his complaint, regardless of injury.” The majority declined this interpretation based on “the well-accepted meaning of ‘aggrieved’ from our case law.”
Dissent: Brown Is “Aggrieved”
Justice R.G. Bradley’s dissent concluded that at minimum, Brown has standing under the majority’s interpretation of “aggrieved” because “he alleged ‘an injury to a legally recognized interest’ resulting from WEC’s refusal to remedy the Racine County Clerk’s violations of Wisconsin election law.”
“Brown has a legal right protected by Wis. Stat. § 5.06 to have local election officials in his area comply with the law.”
Chief Justice Ziegler would stop there, she explained in her dissent. “No additional analysis is required.”
Justice R.G. Bradley reached her conclusion by interpreting “aggrieved,” in which Justice Hagedorn joined. The right of judicial review exists under Wis. Stat. section 5.06(8) that allows “[a]ny election official or complainant who is aggrieved by an order issued [by WEC] may appeal the decision.”
The Wisconsin Constitution confers the “manner of conducting elections on their legislative representatives – not their judges,” Justice R.G. Bradley explained. “[T]he legislature authorizes citizens to complain – first to WEC, and then to the courts if WEC disagrees or fails to act altogether.”
Although the majority correctly interpreted the right to complain to WEC in Wis. Stat. section 5.06(1), Justice R.G. Bradley conceded, the majority then read into the statute an erroneously restrictive view of standing.
Defining “aggrieved” globally across the statutes started in the wrong place, at Wis. Stat. Chapter 227 regarding state administrative procedure, which doesn’t apply to the WEC. Even then, the majority failed to use the definition in Chapter 227, Justice R.G. Bradley said.
One cannot apply the presumption of consistent usage throughout the vast wordage of the entire Wisconsin Statutes, Justice R.G. Bradley explained. Even if the majority could, “aggrieved” wouldn’t mean what the majority said it did. Black’s Law Dictionary defines “aggrieved” as “having legal rights that are adversely affected.”
“Dismissing a case without deciding its merits, especially after the court bypassed the court of appeals, not only flouts the statutory text, it constricts Wisconsin’s decades-old precedent on standing beyond recognition,” Justice R.G. Bradley wrote.
Continuing on her own, Justice R.G. Bradley claims that the “new majority” disregards Teigen v. WEC, 2022 WI 64 (July 8, 2022), which this majority reversed on a different question presented – making Teigen’s analysis valid to grant standing.
The majority’s decision does more than stop Brown’s claim of “five serious breaches of Wisconsin law,” Justice R.G. Bradley said. “[I]t impacts all Wisconsin citizens.”
“The majority, once again, refashions the law to its own liking as it shuts the doors of the courthouse to voters with colorable legal claims,” Justice R.G. Bradley concluded. “Perhaps the majority prefers the prerogatives of the legislature to the duties of the judiciary but the Wisconsin Constitution does not permit this branch to reallocate the powers the People conferred on their elected officials.”