Only One Cook in the Kitchen Please

Wisconsin Supreme Court reverses District II for sidestepping precedent District IV issued weeks earlier

On Friday, the Wisconsin Supreme Court issued a 5-2 decision in Wisconsin Voter Alliance v. Secord, 2025 WI 2. Despite the title of this article (and the accompanying photo), the decision had nothing to do with food. Rather, it involved Wisconsin’s foundational precedent in Cook v. Cook—the Wisconsin Supreme Court’s 1997 decision forbidding the Wisconsin Court of Appeals from overruling itself.

The factual setup for the case is relatively beside the point. Generally though, a group called the Wisconsin Voter Alliance filed lawsuits in 13 Wisconsin counties, seeking access to Notice of Voting Eligibility forms under Wisconsin’s public records law. These are the forms circuit courts send to the Wisconsin Elections Commission to notify it that the court has found a particular individual incompetent and ineligible to vote. In each of the 13 counties where the Alliance sought these records, the records custodians refused to produce the records, citing Wis. Stat. § 54.75. That statute provides that all “court records pertinent to the finding of incompetency are closed” but that certain information may be accessible to those who demonstrate “a need for that information.”

Now here’s where things get interesting. As the Alliance’s numerous cases worked through the judicial system, two made their way to the court of appeals. Wisconsin Voter Alliance v. Reynolds was appealed to the Madison-based District IV in October 2022, and Wisconsin Voter Alliance v. Secord was appealed to the Waukesha-based District II in January 2023. Both cases involved identical legal issues and nearly identical fact patterns.

Whether or not they knew it, the race was on. On November 9, 2023, District IV published a unanimous decision in Reynolds, holding that the Notice of Voting Eligibility forms were not subject to production under Wisconsin’s public records law. Not to be outdone, District II issued a 2-1 decision in Secord on December 27, 2023, reaching the opposite result. District II acknowledged District IV’s weeks-old decision, but, via footnote, it argued the two cases were distinguishable because they were briefed differently in the circuit court. Secord filed a petition for review, arguing that District II’s decision violated Cook v. Cook.

So what is Cook v. Cook?

First, some background. The Wisconsin Court of Appeals was created in 1978 with four geographic districts. Each district is comprised of judges elected by the voters of that district, and each district operates more or less on its own schedule with its own caseload. However, despite the separateness of its districts, the Wisconsin Constitution describes the court of appeals as part of a “unified” system. That prompts the question: Does a decision from one district bind the other three?

In Cook v. Cook, the Wisconsin Supreme Court answered that question in the affirmative. It held that the court of appeals “must speak with a unified voice” and may not overrule, modify, or withdraw language from prior published opinions of the court of appeals—regardless of which district issued the earlier decision. The Cook court said that to hold otherwise would undermine “the principles of predictability, certainty and finality” and might encourage litigants “to litigate issues multiple times in the four districts.”

On Friday, the Wisconsin Supreme Court reaffirmed Cook and held that District II improperly skirted around District IV’s freshly published precedent. In an 11-page decision by Justice Protasiewicz, the five-justice majority held that District II “unmistakably violated Cook’s instructions by rendering multiple holdings that directly conflict with Reynolds.” As the majority explained, both cases involved identical petitions for writ of mandamus, both cases were dismissed for failure to state a claim, and both cases turned on the application of Wis. Stat. § 54.75 to substantially the same set of facts. The majority opinion concluded:

We reject the District II majority’s effort to skirt Cook by drawing fine distinctions between arguments and assuming additional or different facts. If we were to ignore or approve what the District II majority did, we would gut Cook. Like the Alliance, future litigants would feel encouraged to litigate issues “multiple times in the four districts.” Why not? Like the Alliance, if they lose in one district they might win in another.

Overall, it was a pretty good day for Cook v. Cook, which has become something of a controversial precedent in Wisconsin’s legal discourse. But it was not an unqualified victory for Cook. In a concurring opinion, Justice Hagedorn became the first justice (at least in recent memory) to call Cook v. Cook into question in a published opinion. He offered:

In the end, while the rules Cook establishes may be a permissible and reasonable exercise of our constitutional authority, it is not a decision commanded by the constitution itself. Over the years, it has had the regrettable effect of expanding the power of this court, and minimizing that of the court of appeals. I encourage my colleagues in the bench and bar to consider whether alternatives might better serve the people of Wisconsin.

Justice Hagedorn offered the following clue of what sort of alternative he might endorse: “I see no reason, for example, why something like en banc review could not work in such situations.”

My own view on Cook v. Cook is mixed. On the one hand, as a litigator, I appreciate having a unified body of Wisconsin case law on which to draw when advocating for my clients. It does promote predictability and stability. But, on the other hand, I’m bothered by the fact that Cook empowers judges elected by the voters of one district to write case law that binds the entire state—including citizens in the three districts that did not elect those judges. En banc review would at least mitigate that popular sovereignty problem. Another possible solution would be to assign appeals to panels of judges randomly drawn from across the four districts. That approach (perhaps in conjunction with an en banc process) would ensure there is at least a chance for each district to be represented on the panel, and it would have the added benefit of curtailing forum shopping based on the districts’ ideological makeups.

Justice Rebecca Grassl Bradley dissented in an opinion joined by Chief Justice Ziegler. She did not actually note any disagreement with the court’s application of Cook. Rather, she argued a reversal based on Cook should have been done in a summary disposition before the court received briefing on the merits. The dissent would have moved past the Cook v. Cook issue and decided whether Wis. Stat. § 54.75 restricts the production of Notice of Voting Eligibility forms under Wisconsin’s public records law.

For more Cook v. Cook discussion, check out Anthony LoCoco’s excellent write-up on this case on LinkedIn.