John Doe 1 v. Madison Metro School District

2022 WI 65, 976 N.W.2d 584, 403 Wis. 2d 369

• Court: Wisconsin Supreme Court
• Decided: July 8, 2022
• Docket: 2020AP001032
• Status: Published

Opinion

2022 WI 65

SUPREME COURT OF WISCONSIN CASE NO.: 2020AP1032

COMPLETE TITLE: John Doe 1, Jane Doe 1, Jane Doe 3 and Jane Doe 4, Plaintiffs-Appellants-Petitioners, John Doe 5 and Jane Doe 5, Plaintiffs-Appellants, John Doe 6, Jane Doe 6, John Doe 8 and Jane Doe 8, Plaintiffs, v. Madison Metropolitan School District, Defendant-Respondent, Gender Equity Association of James Madison Memorial High School, Gender Sexuality Alliance of Madison West High School and Gender Sexuality Alliance of Robert M. LaFollette High School, Intervenors-Defendants-Respondents.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 399 Wis. 2d, 963 N.W.2d PDC No:2021 WI App 60 - Published

OPINION FILED: July 8, 2022 SUBMITTED ON BRIEFS: ORAL ARGUMENT: May 24, 2022

SOURCE OF APPEAL: COURT: Circuit COUNTY: Dane JUDGE: Frank D. Remington

JUSTICES: HAGEDORN, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined. ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J., joined. NOT PARTICIPATING:

ATTORNEYS:

For the plaintiffs-appellants-petitioners, there were briefs filed by Richard M. Esenberg, Luke N. Berg, Anthony F. LoCoco, Roger G. Brooks and Wisconsin Institute for Law & Liberty, Milwaukee, and Alliance Defending Freedom, Scottsdale. There was an oral argument by Luke N. Berg.

For the defendant-respondent and interevenors-defendants- respondents, there was a brief filed by Emily M. Feinstein, Adam R. Prinsen, Sarah A. Zylstra, Sarah J. Horner, and Quarles & Brady LLP, Madison, and Boardman & Clark LLP, Madison. There was an oral argument for the defendant-respondent by Sarah A. Zylstra and an oral argument for the intervenors-defendants- respondents by Adam R. Prinsen

An amicus curiae brief was filed by Frederick W. Claybrook, Jr., Matthew M. Fernholz, and Claybrook LLC, Washington, D.C., and Cramer, Multhauf & Hammes, LLP, Waukesha for Wisconsin Family Action, Illinois Family Institute, Minnesota Family Council, Delaware Family Policy Council, Nebraska Family Alliance, Hawaii Family Forum, The Family Foundation, Minnesota- Wisconsin Baptist Convention, Ethics and Religious Liberty Commission of the Southern Baptist Convention, Concerned Women for America, Ethics & Public Policy Center, National Legal Foundation, and Pacific Justice Institute.

An amicus curiae brief was filed by Tamara B. Packard and Pines Bach LLP, Madison, for Madison Teachers Inc.

An amicus curiae brief was filed by Eric G. Pearson, Morgan J. Tilleman, Megan C. Isom, and Foley & Lardner LLP, Milwaukee for the American Academy of Child and Adolescent Psychiatry and the Wisconsin Council of Child and Adolescent Psychiatry.

An amicus curiae brief was filed by Victoria L. Davis Dávila, Robert Theine Pledl, Shannon Minter, Asaf Orr, and Davis

2 & Pledl, Milwaukee, and National Center for Lesbian Rights, San Francisco, for Professors of Psychology & Human Development.

An amicus curiae brief was filed by Daniel R. Suhr and Liberty Justice Center, Chicago, for the Liberty Justice Center.

3 2022 WI 65 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2020AP1032 (L.C. No. 2020CV454)

STATE OF WISCONSIN : IN SUPREME COURT

John Doe 1, Jane Doe 1, Jane Doe 3 and Jane Doe 4,

Plaintiffs-Appellants-Petitioners,

John Doe 5 and Jane Doe 5,

Plaintiffs-Appellants,

John Doe 6, Jane Doe 6, John Doe 8 and Jane Doe 8, FILED Plaintiffs, JUL 8, 2022 v. Sheila T. Reiff Madison Metropolitan School District, Clerk of Supreme Court

Defendant-Respondent,

Gender Equity Association of James Madison Memorial High School, Gender Sexuality Alliance of Madison West High School and Gender Sexuality Alliance of Robert M. LaFollette High School,

Intervenors-Defendants-Respondents.

HAGEDORN, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined. ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J., joined. No. 2020AP1032

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 BRIAN HAGEDORN, J. This case involves a

constitutional challenge by parents to a school district policy.

The substantive issues, however, remain pending before the

circuit court and are not properly before us. This is an appeal

contesting the circuit court's decision to seal and protect the

parents' identities from the public and the school district, but

not from the attorneys defending the school district's policy.

Rather than follow our current law governing confidential

litigation, the parents ask us to modify our approach in

Wisconsin and adopt new standards modeled after federal law. We

decline to do so. Applying Wisconsin law, we determine the

circuit court did not erroneously exercise its discretion by

requiring disclosure of the parents' identities to opposing

attorneys, while allowing the parents to keep their names sealed

and confidential as to the public and the district.

¶2 The parents further ask this court to issue an injunction against the underlying policy. But a preliminary

injunction motion on this very issue remains pending in the

circuit court, has not been decided, and therefore has not been

appealed. We are not aware of any procedure by which we could

properly address that motion in this court absent an

extraordinary exercise of our superintending authority, which

the petitioners did not request. What remains is an appeal of

the circuit court's decision to grant in part and deny in part a temporary injunction pending appeal, a decision the court of 2 No. 2020AP1032

appeals affirmed. However, our decision today ends the appeal

of the circuit court's decision regarding parent

confidentiality. Therefore, any decision addressing the

temporary injunction pending appeal is now moot. Accordingly,

we do not opine on the merits of the parents' request for

temporary injunctive relief. We affirm the court of appeals'

decision and remand to the circuit court for further

adjudication of the parents' claims.

I. BACKGROUND

¶3 In April 2018, the Madison Metropolitan School

District (the District) adopted a document entitled, "Guidance &

Policies to Support Transgender, Non-binary & Gender Expansive

Students" (the Policy). The Policy contains multiple provisions

that animate the parents' claims in this case. We highlight

several for context.

 "Students will be called by their affirmed name and pronouns regardless of parent/guardian permission to change their name and gender in [District] systems."

 "All [District] staff will refer to students by their affirmed names and pronouns. Staff will also maintain confidentiality and ensure privacy. Refusal to respect a student's name and pronouns is a violation of the [District] Non- discrimination policy."

 "School staff shall not disclose any information that may reveal a student's gender identity to others, including parents or guardians and other school staff, unless legally required to do so or unless the student has authorized such disclosure."

3 No. 2020AP1032

 "All staff correspondence and communication to families in regard to students shall reflect the name and gender documented in [the District system] unless the student has specifically given permission to do otherwise. (This might involve using the student's affirmed name and pronouns in the school setting and their legal name and pronouns with family)."

 "To avoid harmful misgendering or misnaming, teachers should ensure that all information shared with substitute teachers is updated and accurate. For example, make sure attendance rosters, shared include accurate student names and pronouns, keeping in mind that not all students have their affirmed names and genders updated in [the District system]." ¶4 In February 2020, a group of parents sued the District

alleging the Policy violated their right to parent their

children, citing Article I, Section 1 of the Wisconsin

Constitution,1 and their right to exercise their religious

beliefs under Article I, Section 18 of the Wisconsin

Constitution.2 Contemporaneous with filing their complaint, the

1 Article I, Section 1 of the Wisconsin Constitution provides: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed." 2 Article I, Section 18 of the Wisconsin Constitution states:

The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the 4 No. 2020AP1032

parents moved to proceed using pseudonyms. The parents also

sought a preliminary injunction pursuant to Wis. Stat. § 813.02

(2019-20).3 They asked the circuit court4 to prohibit the

District from:

(1) enabling children to socially transition to a different gender identity at school by selecting a new "affirmed named and pronouns," without parental notice or consent;

(2) preventing teachers and other staff from communicating with parents that their child may be dealing with gender dysphoria, or that their child has or wants to change gender identity, without the child's consent; and

(3) deceiving parents by using different names and pronouns around parents than at school. ¶5 The District moved to dismiss the complaint and asked

the circuit court to postpone the hearing on the injunction

until the court decided the motion to dismiss. The circuit

court agreed. After hearing argument, the circuit court denied

the motion to dismiss.5

treasury for the benefit of religious societies, or religious or theological seminaries. 3 All subsequent references to the Wisconsin Statutes are to the 2019-20 version unless otherwise indicated. 4 The Honorable Frank D. Remington of the Dane County Circuit Court presided. 5 The circuit court also granted intervention to the Gender Equity Association of James Madison Memorial High School, the Gender Sexuality Alliance of Madison West High School, and the Gender Sexuality Alliance of Robert M. La Follette High School.

We refer to the District and the Intervenors-Defendants collectively as the District.

5 No. 2020AP1032

¶6 The circuit court also granted in part the parents'

motion to proceed anonymously. The court agreed with the risks

presented by the parents and found "sufficient need to keep the

Plaintiffs' names sealed and confidential from the public." The

court concluded the parents made a "demonstrable factual showing

that . . . would their names be disclosed, they would likely be

subject to threats and intimidation, which would be wholly

inappropriate and frustrate the orderly functioning of the court

case." It held, however, that the parents "must disclose their

identities to the Court and attorneys for the litigants." The

circuit court ordered the parents to file, under seal, an

amended complaint listing the names and addresses of the parents

accessible to the court and opposing attorneys. And it

instructed the parents to circulate a draft protective order,

the terms of which were to be negotiated. The parents initially

circulated a draft protective order which would limit the

disclosure of their names to attorneys of record, excluding

their staff and other attorneys at their firms. However, the circuit court concluded this was too narrow and directed the

preparation of a protective order that other attorneys at the

respective law firms and their staff would sign as well.

¶7 The parents sought an interlocutory appeal challenging

the order to disclose their identities to the attorneys and

moved to stay the order to file an amended complaint under seal.

The circuit court granted the stay, and the court of appeals

granted the petition for interlocutory appeal.

6 No. 2020AP1032

¶8 While the petition for interlocutory appeal was

pending before the court of appeals, the parents sought an

injunction pending appeal with the circuit court under Wis.

Stat. § 808.07(2). This motion asked for the same relief

requested in the parents' original preliminary injunction

motion. Two months after the court of appeals granted

interlocutory appeal, the circuit court granted in part and

denied in part the parents' motion for an injunction pending

appeal. The circuit court enjoined the District

from applying or enforcing any policy, guideline, or practice reflected or recommended in its document entitled "Guidance & Policies to Support Transgender, Non-binary & Gender-Expansive Students" in any manner that allows or requires District staff to conceal information or to answer untruthfully in response to any question that parents ask about their child at school, including information about the name and pronouns being used to address their child at school. The circuit court added that its "injunction does not create an

affirmative obligation to disclose information if that

obligation does not already exist at law and shall not require

or allow District staff to disclose any information that they are otherwise prohibited from disclosing to parents by any state

or federal law or regulation." The circuit court denied the

other injunctive relief requested by the parents. It reasoned

that the parents had not demonstrated they were likely to

succeed on appeal and, without knowing any specifics about the

parents bringing the claim, the parents were unable to

demonstrate they would suffer irreparable harm.

7 No. 2020AP1032

¶9 Having not received all they hoped for from the

circuit court, the parents turned to the court of appeals. They

moved for injunctive relief under Wis. Stat. § 808.07(2)(a) and

cited Wis. Stat. § (Rule) 809.12, the ordinary authority for

appealing the denial of a motion for relief pending appeal. In

the alternative, they also sought injunctive relief under the

general temporary injunction statute, Wis. Stat. § 813.02, along

with Wis. Stat. § (Rule) 809.14, which specifies how to move an

appellate court for relief.

¶10 The court of appeals denied the parents' motion for

injunctive relief pending appeal, concluding the circuit court

did not erroneously exercise its discretion. The parents then

sought relief from this court on their motion for relief pending

appeal while the court of appeals was still considering the

merits of the confidentiality question. We denied the petition

for review. Several months later, the court of appeals issued a

decision on the confidentiality issue affirming the circuit

court. Doe 1 v. Madison Metro. Sch. Dist., 2021 WI App 60, 399 Wis. 2d 102, 963 N.W.2d 832. The parents then turned to this

court again, and we granted their petition for review.

II. CONFIDENTIALITY

¶11 The main question before us is a narrow one: Did the

circuit court err in ordering the parents to file a sealed

complaint with their names and addresses which would be viewed

by the court and attorneys alone? The parents' argument rests largely on its request that we reexamine, overrule, and 8 No. 2020AP1032

reformulate the law on anonymous litigation in Wisconsin to more

closely resemble their description of the approach in federal

courts. We decline to do so. We begin with the relevant law as

it now exists.

A. Legal Standards

¶12 The ordinary rule in Wisconsin and everywhere is that

those availing themselves of the legal system should do so

openly. See, e.g., State ex rel. La Crosse Trib. v. Cir. Ct.

for La Crosse Cnty., 115 Wis. 2d 220, 241-42, 340 N.W.2d 460

(1983); Doe v. Village of Deerfield, 819 F.3d 372, 376-77 (7th

Cir. 2016); 67A C.J.S. Parties §§ 173-74 (2022). While we

protect certain vulnerable legal participants, such as children

and crime victims, the business of courts is public business,

and as such is presumed to remain open and available to the

public. See Wis. Stat. § 757.14 ("The sittings of every court

shall be public and every citizen may freely attend the

same . . . except if otherwise expressly provided by law."); Wis. Stat. § (Rule) 809.81(8) ("Every notice of appeal or other

document that is filed in the court and that is required by law

to be confidential shall refer to individuals only by one or

more initials or other appropriate pseudonym or designation.");

Wis. Stat. § (Rule) 809.86 (directing that, in certain types of

cases, the identity of crime victims should not be disclosed).

Openness is the rule; confidentiality is the exception.

¶13 This principle plays out from the commencement of a lawsuit. Litigation in Wisconsin begins with the filing of a 9 No. 2020AP1032

summons and complaint, which must contain "the names and

addresses of the parties to the action, plaintiff and

defendant." Wis. Stat. § 801.09(1). These documents are filed

with the clerk of the circuit court, who is required to "open to

the examination of any person all books and papers required to

be kept in his or her office and permit any person so examining

to take notes and copies of such books, records, papers, or

minutes therefrom." Wis. Stat. § 59.20(3)(a). We have

described this as "a legislative declaration granting those

persons who properly come under its umbrella 'an absolute right

of inspection subject only to reasonable administrative

regulations.'" State ex rel. Bilder v. Township of Delavan, 112

Wis. 2d 539, 553, 334 N.W.2d 252 (1983) (quoting State ex rel.

J. Co. v. Cnty. Ct. for Racine Cnty., 43 Wis. 2d 297, 308, 168

N.W.2d 836 (1969)) (interpreting Wis. Stat. § 59.14(1) (1979-

80), predecessor to § 59.20(3)(a)). This reflects "a basic

tenet of the democratic system that the people have the right to

know about operations of their government, including the judicial branch." Id. at 553.

¶14 In Bilder, we identified three exceptions to the right

codified in Wis. Stat. § 59.20(3)(a). First, documents may be

closed to the public when another statute so requires or

authorizes. Id. at 554. Second, the same applies if disclosure

would infringe on a constitutional right. Id. at 555. And

third, "when the administration of justice requires it," a court

may employ its inherent power under the constitution "to preserve and protect the exercise of its judicial function of 10 No. 2020AP1032

presiding over the conduct of judicial proceedings." Id. at

556.

¶15 With respect to the court's inherent power, many of

the cases, including Bilder, focus on the public records nature

of requests for confidentiality. See WISC-TV—Channel 3/Madison

v. Mewis, 151 Wis. 2d 122, 442 N.W.2d 578 (Ct. App. 1989); Krier

v. EOG Env't, Inc., 2005 WI App 256, 288 Wis. 2d 623, 707

N.W.2d 915. But the court's ability "to preserve and protect

the exercise of its judicial function of presiding over the

conduct of judicial proceedings" is not limited to public

records requests. Bilder, 112 Wis. 2d at 556. Instead, the

inherent authority of courts includes those powers "necessary

for the courts to function as courts." State v. Schwind, 2019

WI 48, ¶12, 386 Wis. 2d 526, 926 N.W.2d 742. We see no reason

why the inherent authority of courts would not also reach other

interests implicated by the openness of judicial proceedings,

including the potential for threats and harassment alleged in

this case. These interests go to the core of the judiciary's duty to preside over and conduct judicial proceedings, as the

circuit court recognized.

¶16 Seven years ago, this court adopted by rule a set of

procedures governing the redaction and sealing of documents.

See Wis. Stat. § 801.21; S. Ct. Order 14-04, 2015 WI 89 (issued

Aug. 27, 2015, eff. July 1, 2016). While not enacted in the

same way as other laws, the legislature has prescribed that our

rules function as statutes. See Rao v. WMA Sec., Inc., 2008 WI 73, ¶35, 310 Wis. 2d 623, 752 N.W.2d 220. The underlying 11 No. 2020AP1032

assumption of § 801.21 is that court filings are public. The

procedures we adopted provide a mechanism for protecting certain

documents or information in these otherwise public records.

¶17 The basic procedure we created was to require a

"party seeking to protect a court record" to "file a motion to

seal part or all of a document or to redact specific information

in a document."6 Wis. Stat. § 801.21(2). Sealing and redacting

are different. "'Seal' means to order that a portion of a

document or an entire document shall not be accessible to the

public." § 801.21(1)(b). "'Redact' means to obscure individual

items of information within an otherwise publicly accessible

document." § 801.21(1)(a). A party filing a motion under

§ 801.21 can file the material under temporary seal until a

court rules on the motion, and the movant is required to

"specify the authority for asserting that the information should

be restricted from public access." § 801.21(2).

¶18 The circuit court then determines "whether there are

sufficient grounds to restrict public access according to applicable constitutional, statutory, and common law." Wis.

Stat. § 801.21(4). Section 801.21 does not provide substantive

reasons to protect a document; that law is found elsewhere. For

example, Wis. Stat. § 801.19 defines protected information that

must be omitted or redacted from circuit court records——

including passport and social security numbers. § 801.19(1)(a).

We also specified that the court may act on its own 6

initiative to "order sealing or redaction of any part of the court record or transcript." Wis. Stat. § 801.21(6).

12 No. 2020AP1032

And Wis. Stat. § 801.20(1) requires the director of state courts

to "maintain a list of commonly-filed documents made

confidential by statutes, court rules and case law." When the

law provides grounds for redacting or sealing a document, the

court must "use the least restrictive means that will achieve

the purposes of this rule and the needs of the requester."

§ 801.21(4). A comment to the rule stresses this "section is

intended to make it clear that filing parties do not have the

unilateral right to designate any filing as confidential and

that permission from the court is required." S. Ct. Order 14-

04, § 7.

¶19 In sum, Wisconsin law has a strong presumption in

favor of openness for judicial proceedings and records. But it

can be overcome by specific statutory or constitutional rights,

and in some circumstances, by the inherent power the

constitution vests in the judicial branch. The general

procedure this court has adopted involves redacting or sealing

documents or portions of documents, and any restriction on public access must use the least restrictive means possible.

B. Analysis

¶20 Here, the circuit court concluded the parents may

file their complaint under seal protecting their names and

identities from the public. It did so after finding the risks

to the parents and their children were legitimate. The court

also ordered that the sealed, unredacted complaint would be accessible only to the circuit court and to defense counsel 13 No. 2020AP1032

following the adoption of a signed protective order.

Essentially, the narrow question in this case centers on the

parents' argument that granting defense counsel access to the

sealed complaint should be reversed. They assert that they and

their children face a serious risk of harm, their identities are

irrelevant to their legal claims, and disclosing their

identities to opposing counsel could result in that information

being leaked. At bottom, the parents want to litigate with

total anonymity, except with respect to the circuit court, or

alternatively, with respect to the circuit court and a small

subset of attorneys at one of the firms defending the District's

policy.

¶21 Perhaps recognizing the weakness of their argument

under existing law, the parents come with a bigger ask. Drawing

on federal case law, they ask us to adopt a new multifactor

balancing test. The parents focus our attention on several

factors with an established history of relevance in federal

courts: the plaintiffs are parents of minor children; the case implicates deeply held beliefs likely to provoke an intense

emotional response; and release of their identities poses

significant risks of harassment and retaliation.7 They further

ask us to conduct our review de novo, giving no deference to the

circuit court.

7 Reference to federal law in this area is not improper. Wisconsin courts have looked to federal cases for guidance on sealing documents. See WISC-TV—Channel 3/Madison v. Mewis, 151 Wis. 2d 122, 134-35, 442 N.W.2d 578 (Ct. App. 1989).

14 No. 2020AP1032

¶22 In response, the District argues that none of these

concerns would warrant withholding the parents' identities from

attorneys in the case, each of whom would be duty-bound by court

order to keep the parents' identities confidential. Defense

counsel says their strategy and ability to litigate these claims

could shift depending on each parent's unique circumstances.

This would impact, they assert, legal defenses they might

advance, as well as the scope of any temporary or permanent

relief ordered. The parents disagree, and say their identities

are irrelevant to their claims.

¶23 We begin with the standard of review. The court of

appeals in this case and in prior cases has held that the

circuit court's order should be reviewed for an erroneous

exercise of discretion. Doe 1, 399 Wis. 2d 102, ¶18, (citing

Krier, 288 Wis. 2d 623, ¶23). We agree. Under that standard, a

court must still determine whether the appropriate standard of

law was applied. Thus, a court incorrectly construing a statute

to support sealing a document could be reversed for applying an improper standard of law. Krier, 288 Wis. 2d 623, ¶23 ("An

erroneous exercise of discretion occurs if . . . the trial court

applied the wrong legal standards."). But once the proper law

is identified and employed, the judgment call in determining

15 No. 2020AP1032

whether to keep information confidential is rightly within the

circuit court's discretion.8 Id.

¶24 In this case, the circuit court's decision to withhold

the parents' identities from the public and the District, but

not the District's attorneys, was well within its discretion.

As the District identified, resolving the parents' claims

through the courts could depend on a number of significant legal

questions which can be evaluated only if the District's

attorneys know the parents' identities.

¶25 Of no minor importance, the District's attorneys

stressed their independent ethical responsibilities under our

rules. For example, attorneys must avoid conflicts of interest.

See, e.g., SCR 20:1.7(a) ("[A] lawyer shall not represent a

client if the representation involves a concurrent conflict of

interest."). Among other circumstances, a conflict of interest

arises if "the representation of one client will be directly

adverse to another client," or if the representation involves

"the assertion of a claim by one client against another client represented by the lawyer." SCR 20:1.7(a)(1), (b)(3). At oral

argument, the District expressed concern that its attorneys

cannot know if their representation of the District creates a

conflict of interest with any of the parents without knowing who

the parents are. Already in this case two of the parents

8We observe that discretionary review appears to be the standard approach in federal courts as well. See, e.g., Doe v. Village of Deerfield, 819 F.3d 372, 376 (7th Cir. 2016) (reviewing "a motion for leave to proceed anonymously" "for abuse of discretion only").

16 No. 2020AP1032

voluntarily withdrew from the suit because the parents' counsel

determined their participation created a conflict of interest

for the District's attorneys. The parents suggest they can

police any potential conflicts, but our rules of ethics place

that independent responsibility on the attorneys representing

the District. See ABA Comment [2] SCR 20:1.7 (noting that

resolving a conflict of interest problem "requires the lawyer"

to take certain steps); ABA Comment [4] SCR 20:1.7 ("If a

conflict arises after representation has been undertaken, the

lawyer ordinarily must withdraw from representation, unless the

lawyer has obtained the informed consent of the

client . . . ."). At the very least, this is a significant

consideration regarding the parents' request to proceed without

revealing their identities to opposing counsel. The circuit

court exercised its discretion in this case in a way that

facilitates the District's attorneys' ability to follow their

ethical duties.

¶26 The parents' identities may also have implications for the substantive issues in this case. Although the parents'

bring a facial challenge against the Policy, arguing it is

unconstitutional in every circumstance, facts specific to the

parents or their children could influence the availability and

scope of judicial relief. For example, the parents raise a free

exercise of religion claim under Article I, Section 18 of the

Wisconsin Constitution. But without knowing the parents'

identities, how can the District's attorneys inquire whether the parents have a sincerely held religious belief regarding this 17 No. 2020AP1032

aspect of their children's upbringing? Individual parents in

this case might also have differing beliefs which could affect

the evaluation of their claims. Additionally, it could be that

various factual wrinkles alter the nature of the alleged

violation of the right to parent one's child as well as the

scope of relief the parents could be entitled to. For example,

it is unclear if the constitutional right asserted would apply

in the same way to a parent whose child has turned 18 but is

still attending District schools. The same could be true of a

parent whose parental rights have been terminated by a court or

a parent who has ceded certain decisions to another parent

pursuant to a custody arrangement. If there is an

Individualized Educational Program in place for the child, that

could again complicate whether a particular parent is entitled

to relief. See Wis. Stat. § 115.787. Finally, the District

noted other legal defenses——including ripeness, mootness, and

lack of standing——which it asserts it cannot advance without

knowing the parents' identities. Each of these variables may influence whether the parents are entitled to judicial relief,

or how far such relief should extend.9

¶27 The parents make an earnest plea that the risk of

harassment and retaliation is real. The problem with their

argument is that the circuit court agreed and protected their

9We do not decide that any of these considerations should or will impact the claims. Rather, based on this briefing, we conclude these concerns could impact the arguments the District might reasonably make. And therefore, they weigh in favor of affirming the circuit court's exercise of discretion.

18 No. 2020AP1032

identities. Therefore, the crux of the parent's continued worry

is their fear that the attorneys on the other side will

intentionally or unintentionally violate the court's protective

order and expose them to the risks they identify. Attorneys are

duty-bound to follow court orders, however. We have no evidence

that any of the law firms defending the District's policy have

violated a protective order in the past or that there is any

risk of them doing so now. In fact, counsel for the parents

conceded to the circuit court that there was "no reason to doubt

that the lawyers in this case will make every effort to preserve

the plaintiffs' anonymity and follow a court order."

Nevertheless, the parents essentially make an unfounded

accusation that the attorneys on the other side will risk their

law licenses, through carelessness or otherwise. This pure

speculation lacks merit. Each attorney is an officer of the

court subject to strict ethical rules in the maintenance of

confidential information. Each would need to agree to a

protective order——the specifics of which have not yet been negotiated. The parents present no reason to think the order to

keep their identities private as to the District and the general

public will not be followed.

¶28 Furthermore, we observe the circuit court's exercise

of discretion was a proper application of the statutory test.

Wisconsin Stat. § 801.21(4) directs that if "there are

sufficient grounds to restrict public access" to court records,

"the court will use the least restrictive means that will achieve the purposes of this rule and the needs of the 19 No. 2020AP1032

requester." The circuit court concluded some protection for the

parents' identities was warranted and decided to shield their

names from public view and the District's view. But the court

did not see the same danger in disclosing the parents' names to

the District's attorneys. We see no error in this conclusion.

¶29 Although the parents frame their arguments around

whether Wisconsin permits totally anonymous litigation, we do

not decide that question because we need not. We leave for

another day whether a future litigant can proceed anonymously in

a case. Instead, we conclude that the circuit court's decision

to allow the parents to proceed pseudonymously, but not to

prevent opposing attorneys from knowing their identity, was well

within the circuit court's discretion.

III. INJUNCTION

¶30 Finally, the parents ask us to provide injunctive

relief on the underlying Policy. As best we can tell, this

request stems from two different statutory bases——Wis. Stat. § 808.07(2)(a) and Wis. Stat. § 813.02——following several

motions the parents filed with the circuit court and court of

appeals. Given the posture of this case, it is not appropriate

to grant the parents' requested temporary relief.

¶31 We first address the request for temporary injunctive

relief under Wis. Stat. § 808.07(2)(a). That statute provides:

"During the pendency of an appeal" circuit courts and appellate

courts are permitted to: "1. Stay execution or enforcement of a judgment or order; 2. Suspend, modify, restore or grant an 20 No. 2020AP1032

injunction; or 3. Make any order appropriate to preserve the

existing state of affairs or the effectiveness of the judgment

subsequently to be entered." § 808.07(2)(a). Notably, any

injunctive relief granted under § 808.07(2)(a) lasts only

"[d]uring the pendency of an appeal." Once an appeal ends, an

injunction issued under § 808.07(2)(a) terminates. In addition,

Wis. Stat. § (Rule) 809.12 requires that any "person seeking

relief under s. 808.07 shall" file the motion in circuit court

first unless impractical. Accordingly, in the ordinary course,

an appellate court reviews a circuit court's decision on a

motion seeking relief pending appeal under an erroneous exercise

of discretion standard. Werner v. A.L. Grootemaat & Sons, Inc.,

80 Wis. 2d 513, 519, 259 N.W.2d 310 (1977). The appellate court

does not conduct the analysis anew; it looks for a reasonable

basis to sustain a circuit court's discretionary decision.

State v. Rhodes, 2011 WI 73, ¶26, 336 Wis. 2d 64, 799

N.W.2d 850.

¶32 Here, the circuit court granted in part and denied in part the parents' motion for a temporary injunction pending

appeal under Wis. Stat. § 808.07(2)(a).10 The court of appeals

concluded the circuit court properly exercised its discretion

and declined to grant any further relief. Doe 1 v. Madison

As previously noted, the court enjoined the district 10

"from applying or enforcing" the policy "in any manner that allows or requires District staff to conceal information or to answer untruthfully in response to any question that parents ask about their child at school, including information about the name and pronouns being used to address their child at school."

21 No. 2020AP1032

Metro Sch. Dist., No. 2020AP1032, unpublished order (Wis. Ct.

App. Nov. 9, 2020). This is an appeal of the circuit court's

confidentiality decision, however, which this opinion resolves——

thereby ending the appeal. Even if we thought the lower courts

erred, any decision to provide further injunctive relief pending

appeal would immediately be a dead letter by virtue of this

decision. Therefore, the motion for relief pending appeal is

moot. See PRN Assocs. LLC v. DOA, 2009 WI 53, ¶25, 317

Wis. 2d 656, 766 N.W.2d 559 ("An issue is moot when its

resolution will have no practical effect on the underlying

controversy."). Addressing these matters now would constitute

an advisory opinion on an issue that is, albeit in a different

posture, still pending in the circuit court below. See State ex

rel. Collison v. City of Milwaukee Bd. of Rev., 2021 WI 48, ¶46,

397 Wis. 2d 246, 960 N.W.2d 1 (declining to "depart from our

general practice that this court will not offer an advisory

opinion"). Accordingly, we decline to provide any relief under

§ 808.07(2)(a). ¶33 The parents also appear to ask us for injunctive

relief under Wis. Stat. § 813.02. That section provides in

relevant part:

When it appears from a party's pleading that the party is entitled to judgment and any part thereof consists in restraining some act, the commission or continuance of which during the litigation would injure the party, or when during the litigation it shall appear that a party is doing or threatens or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party and tending

22 No. 2020AP1032

to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. § 813.02(1)(a). The parents assert that they can bring such a

motion directly to an appellate court under Wis. Stat. § (Rule)

809.14, which sets forth the procedure for filing motions in

appellate courts. See § (Rule) 809.14(1) ("A party moving the

appellate court for an order or other relief in a case shall

file a motion for the order or other relief.").

¶34 The parents first moved for injunctive relief under

Wis. Stat. § 813.02 in the circuit court. That motion remains

before the circuit court pending resolution of this appeal. The

parents now seem to suggest the circuit court erred by failing

to address their § 813.02 motion. As best we can tell from the

record, the circuit court reasoned that it could not address the

parents' claim for irreparable harm——a central component of the

temporary injunction standard——without additional information

gleaned from disclosure of their identities (while still

concealing that information from the public). Once the parents

appealed the circuit court's confidentiality decision, the circuit court did not believe it had the necessary information

to decide the motion.

¶35 We decline to address whether the circuit court's

decision to wait to adjudicate this motion was erroneous. The

parents have not developed any arguments for how this court

should determine whether the circuit court erred or whether this

would be the proper vehicle to address a circuit court's non- decision. Beyond complaining that the motion has not been

23 No. 2020AP1032

decided yet, the parents jump right into the merits of their

plea for injunctive relief, never developing an argument that

the circuit court committed procedural error. As we have said

many times, "We do not step out of our neutral role to develop

or construct arguments for parties; it is up to them to make

their case." Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020

WI 67, ¶24, 393 Wis. 2d 38, 946 N.W.2d 35. With the appeal

resolved, we expect the circuit court will address the pending

motion and all other matters put on hold by virtue of this

appeal.

¶36 The parents also sought a temporary injunction under

Wis. Stat. § 813.02 from the court of appeals. In that motion,

the parents stated that they believed there was no meaningful

difference from the relief they could receive under either

§ 813.02 or Wis. Stat. § 808.07. The court of appeals addressed

this motion in a footnote, stating that its decision to uphold

the circuit court's injunction and not grant any further relief

would be the same under either statute.11 Doe 1, No. 2020AP1032, unpublished order at 6 n.4. But the court of appeals also noted

11The parents' procedural arguments are difficult to track, but for the reasons we explain below, it's not clear the court of appeals was correct that the analysis would be the same. We understand the parents to be seeking a separate injunction under Wis. Stat. § 813.02. If so, and if that is a new, independent motion, it presumably would not come with the same deference the court of appeals properly gave to the circuit court's decision on the parents motion for relief pending appeal under Wis. Stat. § 808.07(2)(a).

24 No. 2020AP1032

"the parents do not explain why this court would have authority

to grant injunctive relief under § 813.02."12 Id.

¶37 We observe, as the court of appeals did, that the

parents provide no authority to support the notion that we

should decide a motion for temporary injunction under Wis. Stat.

§ 813.02 in the first instance. This is especially true when

such a motion is pending and unresolved before the circuit

court. Allowing this procedural leap-frog would render nugatory

the discretionary review appellate courts apply when reviewing

any form of temporary injunctive relief granted or denied by the

circuit court. A litigant could simply seek the same injunctive

relief at each level by filing a new motion under § 813.02, and

thereby sidestep the deferential standard of review appellate

courts apply in this context.13 While we cannot say such a

At oral argument, the parents' counsel stated that the 12

circuit court on remand would be bound by the court of appeals' decision on the Wis. Stat. § 813.02 motion. We disagree. The court of appeals declined to address the parents' motion as a de novo matter under § 813.02, instead appearing to view its role as reviewing the circuit court's exercise of discretion. On remand, the circuit court can, in the first instance, address the parents' motion for a temporary injunction filed under § 813.02.

See Wis. Ass'n of Food Dealers v. City of Madison, 97 13

Wis. 2d 426, 429, 293 N.W.2d 540 (1980) ("The denial of a temporary injunction under [Wis. Stat. § 813.02(1)] is a matter within the discretion of the trial court, and the sole issue on appeal is whether the trial court abused its discretion."); Browne v. Milwaukee Bd. of Sch. Dirs., 83 Wis. 2d 316, 336, 265 N.W.2d 559 (1978) ("The power to grant a temporary injunction lies within the discretion of the trial court. The trial court's decision concerning an injunction will not be reversed unless the discretion has been abused."); Codept, Inc. v. More- Way N. Corp., 23 Wis. 2d 165, 171, 127 N.W.2d 29 (1964) ("It is an elementary rule of law that the granting or refusal of a 25 No. 2020AP1032

motion would never be appropriate, we are unable to find any

support for the proposition that addressing a new motion for

injunctive relief under § 813.02 would be proper at this

juncture.

¶38 The original preliminary injunction motion under

§ 813.02 remains pending in circuit court. Following the

ordinary rules of litigation and appellate procedure dictates

allowing the circuit court to address the matter. If authority

exists for the procedural process advocated by the parents, they

have not provided it. It seems that the only way this court

could do what we are being asked to do would be a dramatic and

unprecedented invocation of our superintending authority over

lower courts. We were not asked to rely on these extraordinary

powers, and we will not construct such an argument for the

parents. See Vos, 393 Wis. 2d 38, ¶24.

¶39 The parents also indicate that the injunction

arguments would be the same in a subsequent appeal, and propose

that we should just step in and settle the matter now. This is a troubling suggestion. As an initial matter, we do not know

how arguments may develop as this case proceeds or how the

circuit court's decision could affect them. But even if the

temporary injunction is a matter lying within the discretion of the trial court, and its determination in regard thereto will not be upset on appeal unless an abuse of discretion is shown."); Gimbel Bros. v. Milwaukee Boston Store, 161 Wis. 489, 497, 154 N.W. 998 (1915) ("We conclude that it was within the sound discretion of the trial court to refuse the injunction prayed for.").

26 No. 2020AP1032

arguments remained identical, that does not provide a foundation

for us to opine on legal issues not properly before us.

Litigation rules and processes matter to the rule of law just as

much as rendering ultimate decisions based on the law. Ignoring

the former to reach the latter portends of favoritism to certain

litigants and outcomes. We do not suggest the constitutional

claims here are inconsequential. But our adjudication of them

must be rooted in applying the same rules to everyone. Our

rules of judicial process matter, and we will follow them.14

¶40 In sum, we decline the parents' request for temporary

injunctive relief under Wis. Stat. § 808.07(2)(a) because any

relief we could grant would immediately become moot. We also

decline the request for temporary injunctive relief under Wis.

Stat. § 813.02. Such a motion remains pending in the circuit

court, and the parents have provided no authority to support the

notion that we can or should grant injunctive relief under

§ 813.02 in this procedural context. We do not reach the merits

of the injunction motion at this preliminary stage of the litigation.

The dissent does not claim that the parents' temporary 14

injunction request is something we can address in the normal course. Instead, it advocates an extraordinary constitutional intervention not even argued by the parents, and suggests failure to follow its lead constitutes an abdication of the court's responsibility. We reject the dissent's sense of judicial duty.

27 No. 2020AP1032

IV. CONCLUSION

¶41 This is an appeal of a circuit court's decision to

allow parents challenging the District's Policy to remain

confidential, but not as to the attorneys for those defending

the Policy. We conclude the circuit court did not erroneously

exercise its discretion in drawing this line. The parents

further ask this court to grant temporary injunctive relief on

the underlying Policy. But the request for relief pending

appeal is moot by virtue of this decision, and the underlying

preliminary injunctive relief sought remains pending before the

circuit court. Addressing the parents' request for injunctive

relief is therefore not proper for a case at this preliminary

stage. We affirm the court of appeals and remand to the circuit

court to proceed with the adjudication of the parents' claims.

By the Court.——The decision of the court of appeals is

affirmed and the cause is remanded to the circuit court.

28 No. 2020AP1032.pdr

¶42 PATIENCE DRAKE ROGGENSACK, J. (dissenting). Today

the majority opinion abdicates the court's responsibility, once

again, by choosing not to address the critical issue on which

this case turns: the constitutional right of parents to raise

their children as they see fit.1 Today, parents' constitutional

rights, the high burden of proof required to intervene in

parents' parenting decisions, and the presumption that parents

act in the best interests of their children are all upended by

the majority opinion's silence. It fails parents, fails to

uphold the constitution, and fails to provide parents with due

process before Madison Metropolitan School District (MMSD),

acting behind closed doors, overtakes parents' constitutional

right to parent their own children.

¶43 The John Doe plaintiffs (hereinafter the parents) have

children in the MMSD. They sue on behalf of all parents with

children in MMSD, not on behalf of any particular parent-child

1 This court, in a series of recent decisions, has shown an unwillingness to resolve significant legal issues presented to us for decision. Hawkins v. Wis. Elections Comm'n, 2020 WI 75, ¶¶29-83, 393 Wis. 2d 629, 948 N.W.2d 877 (Ziegler, J. dissenting); Trump v. Biden, 2020 WI 91, ¶62, 394 Wis. 2d 629, 951 N.W.2d 568 (Roggensack, C.J. dissenting); Gymfinity, Ltd. v. Dane Cnty., No. 2020AP1927-OA, unpublished order (Wis. Dec. 21, 2020); Trump v. Evers, No. 2020AP1971-OA, unpublished order (Wis. Dec. 3, 2020); Wis. Voters All. v. Wis. Elections Comm'n, No. 2020AP1930-OA, (Wis. Dec. 4, 2020); Mueller v. Jacobs, No. 2020AP1958-OA, unpublished order (Wis. Dec. 3, 2020); Zignego v. Wis. Elections Comm'n, No. 2019AP2397, unpublished order (Wis. Jan. 13, 2021); Stempski v. Heinrich, No. 2021AP1434-OA, unpublished order (Wis. Aug. 27, 2021); Gahl v. Aurora Health Care, Inc., No. 2021AP1787, unpublished order (Wis. Oct. 25, 2021); State ex rel. Robin Vos v. Cir. Ct. for Dane Cnty., No. 2022AP50-W, unpublished order (Wis. Jan. 11, 2022).

1 No. 2020AP1032.pdr

relationship. As such, any individual parent's name is

irrelevant to the constitutional analysis. They assert that a

MMSD guidance policy that affirms a child's gender transition to

a sexual designation different from the child's sex at birth and

deceives the child's parents about that choice violates their

fundamental constitutional rights as parents contrary to Article

I, Section 1 of the Wisconsin Constitution and the Fourteenth

Amendment of the United States Constitution. The parents seek

to enjoin MMSD from continuing to usurp their constitutional

right to direct the upbringing and education of their children

by requiring MMSD to immediately disclose a child's gender-

identity concerns to the parents and by preventing MMSD from

enabling their children to change gender-identity without

parental consent. They also seek to go forward in this case

using pseudonyms.

¶44 A majority of this court blocks all relief for parents

by restructuring the pending dispute. The majority says: "The

main question before us is a narrow one: Did the circuit court err in ordering the parents to file a sealed complaint with

their names and addresses which would be viewed by the court and

attorneys alone?"2 We accepted more than the question of using

pseudonyms when we accepted review.

¶45 The majority opinion's restructuring of the

controversy denies all parents who have children in a MMSD

school a forum in which to litigate MMSD's usurpation of their

constitutional right to direct the upbringing of their children.

2 Majority op., ¶11.

2 No. 2020AP1032.pdr

Both the United States Constitution and the Wisconsin

Constitution support the conclusion that MMSD's Policies cannot

deprive parents of their constitutional rights without proof

that parents are unfit, a hearing, and a court order, in other

words, without according parents due process. Instead, the

majority keeps MMSD as the decision-maker of basic healthcare

choices that may involve gender-identity for children who attend

a MMSD school. And finally, the majority's non-decision,

decision participates in MMSD's ability to hide from parents

what MMSD actually has been doing behind closed schoolhouse

doors.

¶46 The circuit court erred when it concluded that it

could not permit parents to employ pseudonyms in this lawsuit.

The court of appeals erred in affirming that decision, even

while noting that the circuit court did have the power to permit

the use of pseudonyms, contrary to the circuit court's decision.

¶47 Furthermore, I conclude that we can and should employ

our constitutional supervisory authority to decide this constitutional controversy because it cries for judicial

resolution. This court, as a court of last resort, should act

to affirmatively grant parents' request for a temporary

injunction that enjoins MMSD from: (1) enabling children to

socially transition to a different gender-identity without

parental consent; (2) preventing teachers and other staff from

telling parents that their child may have gender-identity

concerns; and (3) deceiving parents by using different names and pronouns in front of parents than are used at school. For the

3 No. 2020AP1032.pdr

reasons set out below, I conclude that the circuit court erred

in not granting the temporary injunction that was requested in

February of 2020. Because the majority opinion chooses not to

decide the constitutional controversy that was presented, I

respectfully dissent.

¶48 The parents filed this action for Declaratory Judgment

in Dane County Circuit Court on February 18, 2020, seeking

declaration that MMSD violated their constitutional right to

direct the upbringing of their children through employment of

MMSD's "Guidance & Policies to Support Transgender, Non-binary &

Gender-Expansive Students" (hereinafter MMSD Policies). They

filed this case anonymously, using pseudonyms due to the

sensitive nature of their claims. They sought to protect the

identity of minor children and to protect parents and their

children from retaliation or harassment for raising a

controversial issue.

¶49 The parents also sought a temporary injunction prohibiting MMSD from enabling children to socially transition

to a different gender-identity at school by selecting a new

"affirmed name and pronouns" without parental notice and

consent. MMSD moved to dismiss the complaint because parents

had not provided their names and addresses.

¶50 The circuit court did not rule on the parents' request

for a temporary injunction. However, the circuit court found:

[A]s a factual matter, I believe the plaintiffs have satisfied the court of the need to preserve their confidentiality and, in particular, when analyzed against the backdrop of the relevance or irrelevance 4 No. 2020AP1032.pdr

of their identity on their ability to challenge the policy in question. . . . "[A]s a factual matter, would their names be disclosed, they would likely be subject to threats and intimidation, which would be wholly inappropriate and frustrate the orderly functioning of the [circuit] court case.[3] ¶51 Although the circuit court denied MMSD's motion to

dismiss, the circuit court also required the parents to file an

amended complaint containing their names and addresses, which

would be accessible to the circuit court and "attorneys for the

litigants." Because the circuit court found that the parents

and their children would be subjected to harassment due to their

positions on the MMSD gender-identity policy, the circuit court

ordered that the amended complaint was to be filed under seal.

¶52 The parents appealed the circuit court's requirement

of identity disclosure, and the court of appeals affirmed. The

parents petitioned us for review, which we granted. In their

petition, the parents asked us to review whether they may sue

anonymously in Wisconsin courts, and they also asked us to

review whether the circuit court erred by declining to

temporarily enjoin MMSD's Policies that infringe parents'

constitutional right to parent their children, which motion for

a temporary injunction the parents filed on February 19, 2020,

the day after they filed this action.

II. DISCUSSION

A. Standard of Review

¶53 We review the circuit court's decision that it lacked

authority to permit the parents to use pseudonyms in this

3 Circuit Ct. Decision, May 26, 2020, 22.

5 No. 2020AP1032.pdr

litigation for an erroneous exercise of discretion. State v.

Schwind, 2019 WI 48, ¶2, 386 Wis. 2d 526, 926 N.W.2d 742.

Whether the circuit court actually lacked such authority

presents as a question of law that is subject to our independent

review. State v. Henley, 2010 WI 97, ¶29, 328 Wis. 2d 544, 787

N.W.2d 350. A court erroneously exercises its discretion when

it applies an incorrect standard of law to the question

presented. Krier v. EOG Env't, Inc., 2005 WI App 256, ¶23, 288

Wis. 2d 623, 707 N.W.2d 915.

¶54 We review independently whether MMSD's Policies

interfere with the parents' constitutional right to raise their

children as they see fit such that their request for a temporary

injunction should have been granted. State v. Lavelle W., 2005

WI App 266, ¶2, 288 Wis. 2d 504, 708 N.W.2d 698. Whether this

court should employ its superintending authority to address the

parents' request for a temporary injunction is a discretionary

decision subject to our independent review. State v. Green,

2022 WI 30, ¶3, 401 Wis. 2d 542, 973 N.W.2d 770. B. Pseudonyms in Litigation

¶55 The circuit court was asked to permit parents' use of

pseudonyms in this litigation. The parents made their motion

based on concerns that they and their children would be harassed

and the litigation disrupted if the parents' names were known.

The circuit court found that their concerns were valid. The

circuit court said:

I agree with the plaintiff, Mr. Berg, in terms of the factual basis they've demonstrated on the legitimacy and sincerity of their concern over the release of their identities. And so as a factual 6 No. 2020AP1032.pdr

matter, I believe the plaintiffs have satisfied the court of the need to preserve their confidentiality and, in particular, when analyzed against the backdrop of the relevance or irrelevance of their identity on their ability to challenge the policy in question.[4] However, the circuit court precluded the use of pseudonyms

because it concluded that it did not have the authority to

authorize their use. The circuit court explained:

I'm bound by Wisconsin law, both in terms of what the statutes set forth and the Wisconsin common law as established by the Supreme Court. There is no precedent for what the plaintiff is asking for in the current published appellate case law.[5] ¶56 Here, the circuit required disclosure of the parents'

names to the court and to all parties' attorneys in the

litigation. The parents do not object to filing an amended

complaint that discloses their names for review by the circuit

court. However, they do object to permitting review by the

parties' attorneys. They contend that a leak of their

identities is multiplied by the number of people who have that

information. Once the parents' identities are disclosed, there

is no way of undoing that disclosure, and as the circuit court found, harassment of the parents and their children and

disruption of this litigation likely will follow.

¶57 The circuit court concluded that allowing the parties'

attorneys to view the amended complaint was acceptable because

the attorneys could be expected to keep the parents' identities

confidential. The circuit court did not assess whether any

4 Circuit Ct. Hr'g Tr., May 26, 2020, at 22. 5 Id.

7 No. 2020AP1032.pdr

remedy could be provided to the parents and their children when

their identities were disclosed.

¶58 Litigation conducted anonymously has been permitted in

very similar circumstances in federal district courts. It has

been approved by the Fifth, Sixth, Seventh, and Ninth Circuits.

For example, in Doe ex rel. Doe v. Elmbrook Sch. Dist., 658 F.3d

710, 721-24 (7th Cir. 2011), the court concluded that the

district court carefully considered detailed affidavits

supporting the request to proceed anonymously. Therefore, it

affirmed the district court's decision.

¶59 The United States Supreme Court has approved the use

of pseudonyms in litigation, explaining, "Our decision in Roe v.

Wade, establishes [] that, despite her pseudonym, we may accept

as true, for this case, Mary Doe's existence and her pregnant

state." Doe v. Bolton, 410 U.S. 179, 187 (1973), abrogated by

Dobbs v. Jackson Women's Health Org., No. 19-1392, 2022 WL

2276808 (U.S. June 24, 2022). However, we do not need to adopt

federal standards in order to permit litigation by pseudonyms in Wisconsin. As I explain below, Wisconsin courts have that

authority.

¶60 When justice has required it, we have approved

limiting public access to judicial records. For example, in

State ex rel. Bilder v. Delavan Twp., 112 Wis. 2d 539, 334

N.W.2d 252 (1983), we explained:

The circuit court under its inherent power to preserve and protect the exercise of its judicial function of presiding over the conduct of judicial proceedings has the power to limit public access to judicial records when the administration of justice requires it.

8 No. 2020AP1032.pdr

Id. at 556. We also have recognized that "the inherent power of

the courts 'in many respects goes beyond those conferred by

statute.'" Id. The party seeking "to close court records bears

the burden of demonstrating, with particularity, that the

administration of justice requires that the court records be

closed." Id. at 556-57.

¶61 The command, "when administration of justice so

requires" is at the core of Wisconsin courts' power to proceed

as an independent judiciary. This power may require protection

of some who are involved in Wisconsin's judicial system. Gabler

v. Crime Victims Rts. Bd., 2017 WI 67, ¶58, 376 Wis. 2d 147, 897

N.W.2d 384 (explaining that "a concern about possible re-

traumatization of victims influenced our decision permitting the

Department of Justice to withhold requested public records" in

the administration of justice). In Wisconsin, the

administration of justice permits a court to "make any order

which justice requires to protect a party or person from

annoyance, embarrassment, oppression, or undue burden or expense" including closing court records. State ex rel.

Mitsubishi Heavy Indus. Am., Inc. v. Cir. Ct. for Milwaukee

Cnty., 2000 WI 16, ¶40, 233 Wis. 2d 1, 605 N.W.2d 868.

¶62 The court of appeals, in its review of the circuit

court's order that permitted review of the parents names by the

attorneys for all parties to this litigation, disagreed with the

circuit court's assessment of its own power. It concluded that

the circuit court had the power to permit the parents to use pseudonyms in this litigation rather than requiring their actual

9 No. 2020AP1032.pdr

names. Doe v. Madison Metro. Sch. Dist., 2021 WI App 60, ¶31

n.8, 399 Wis. 2d 102, 963 N.W.2d 823. It said, "Wisconsin

circuit courts have the power to enter as restrictive a

protective order as is warranted, taking into account the facts

and circumstances of a particular case and the public interest

or the administration of justice." Id.

¶63 However, the court of appeals nevertheless "decline[d]

to adopt" the use of pseudonyms rather than the statutory

procedure set out in Wis. Stat. § 801.21(2). Id., ¶31. The

court of appeals did not evaluate whether a remedy could be

provided to the parents and their children when a disclosure of

their identities occurred. It seemed to presume that no such

leak would occur.

¶64 The circuit court and the court of appeals appear not

to have realistically considered what likely will occur with

regard to the parents' identities in today's tell-all world.

Even the United States Supreme Court, an institution that has

historically demanded the highest levels of integrity and confidentiality, has been subject to unauthorized leaks. These

leaks have consequences. One need look no further than this

case for examples. Following the leak of the Supreme Court's

draft opinion in regard to abortion, Wisconsin Family Action, an

amicus in this case, had its offices vandalized and attacked

with Molotov cocktails.6 Here, the circuit court found that the

Press 6 Release, Wisconsin Family Action, Historical Mothers' Day 2022 Attack on Wisconsin Family Action, https://wifamilyaction.org/mothers-day-attack-wfa.

10 No. 2020AP1032.pdr

parents and their children likely would be subjected to

harassment if parental identities were disclosed.7

¶65 The judicial system has no remedy for a violation of

the confidentiality of an amended complaint that identifies the

parents when filed under seal as the circuit court ordered.

Unnecessary harm will be inflicted on parents and minor

children. There is no compelling reason to ignore the very real

possibility of a leak of the parents' identities and the

inability of the court to fashion a remedy for the disclosure.

In the interests of the administration of justice, the circuit

court should have permitted the use of pseudonyms. Gabler, 376

Wis. 2d 147, ¶58; Bilder, 112 Wis. 2d at 556; Mitsubishi Heavy

Indus. Am., 233 Wis. 2d 1, ¶40.

¶66 I agree with the conclusion of the court of appeals

that the circuit court erred when it applied the wrong legal

standard to the parents' motion to proceed by pseudonyms. In so

doing, the circuit court erroneously exercised its discretion.

Krier, 288 Wis. 2d 623, ¶23. The circuit court had the power to permit the use of pseudonyms, as the court of appeals explained.

Doe 1, 399 Wis. 2d 102, ¶31 n.8. I conclude the circuit court

erred, and the court of appeals did so as well, in requiring the

parents to disclose their identities to the attorneys for the

other parties to the litigation. Neither court evaluated or

appreciated that there is no remedy for leaks of parental

identities. Both courts acknowledged that disclosure of

identities likely would lead to harassment of the parents and

7 Circuit Ct. Decision, May 26, 2020, 22.

11 No. 2020AP1032.pdr

their children and disruption of this litigation, but they

neglected to recognize or evaluate how that would affect the

administration of justice. Stated otherwise, their neglect

affected the core of our independence as courts: the

administration of justice. It was error to fail to evaluate the

effect on the parents and the minor children were identities

disclosed.

C. Constitutional Right to Parent

¶67 The constitutional right of parents to direct the

raising of their children is at the heart of this lawsuit. It

is that constitutional right that the majority opinion

intentionally disregards.8 Schools do not have the right to

parent our children on gender-identity issues. Yet, a majority

of this court greets parents' pleas to temporarily enjoin MMSD

with silence, which silence permits schools to make gender-

identity decisions for children in a MMSD school without

parental knowledge or consent.

¶68 Furthermore, as we consider the constitutional right to parent that is raised in the Petition for Review, it is

important to note that a part of the problem we face here is of

the circuit court's own making. On February 19, 2020, the

parents moved for Temporary Injunction to enjoin MMSD's Policies

while this litigation is pending. They sought to prohibit MMSD

from:

"It is emphatically the province and duty of the judicial 8

department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule." Marbury v. Madison, 1 Cranch 137, 177 (1803).

12 No. 2020AP1032.pdr

(1) enabling children to socially transition to a different gender identity at school by selecting a new "affirmed named and pronouns," without parental notice or consent; (2) preventing teachers and other staff from communicating with parents that their child may be dealing with gender dysphoria, or that their child has or wants to change gender identity, without the child's consent; and (3) deceiving parents by using different names and pronouns around parents than at school. The parents asserted in their motion that some of the "policies

violate parents' constitutional rights to direct the upbringing

of their children." They asserted that "[w]hether a child with

gender dysphoria should socially transition to a different

gender identity is a significant and controversial healthcare

decision that falls squarely within parental decision-making

authority."

¶69 More than two years have passed without a decision by

the circuit court on the parents' motion for a Temporary

Injunction. If the circuit court had addressed the pending

motion, the losing party could have appealed that decision years

ago. The litigation could have returned to the circuit court to

decide whether the identities of the parents were irrelevant, as the parents contend because they sue on behalf of all parents to

raise their children as they see fit, or relevant identities, as

MMSD alleges. The administration of justice is affected by the

circuit court's non-decision because by not deciding, the

circuit court has effectively denied the motion for a temporary

injunction and the circuit court also has denied the parents'

opportunity to appeal an adverse ruling. ¶70 The Petition for Review, raised the issue of temporary

injunction standards, contending that "the lower courts' 13 No. 2020AP1032.pdr

decisions are directly 'in conflict with' this Court's

'controlling' precedents as to proper application of the

temporary injunction standards . . . ."9 The Petition for Review

did so, recognizing that the circuit court and court of appeals

had decided motions for injunction pending appeal, and also

recognizing that the standard for whether to grant a temporary

injunction, Werner v. A.L. Grootemaat & Sons, Inc., 80 Wis. 2d

513, 519, 259 N.W.2d 310 (1977), and a stay pending appeal,

State v. Gudenschwager, 191 Wis. 2d 431, 440, 529 N.W.2d 225

(1995), employ similar tests.

¶71 The parents moved for an injunction pending appeal

pursuant to Wis. Stat. § 808.07(2)(a), which the majority

opinion denied because its decision ends the appeal and

therefore any injunction pending appeal that it would grant

would also end with its decision.10 The parents also renewed

their request for a temporary injunction pursuant to Wis. Stat.

§ 813.02.

¶72 The majority opinion ignores this part of the Petition for Review, claiming that the parents have not provided a legal

theory by which the majority could reach the failure of the

circuit court to address the motion for a temporary injunction

that has been pending for more than two years.11 By its

decision, the majority opinion chooses to duck the significant

question of constitutional law that was raised in the Petition

9 Petition for Review, Aug. 13, 2021, 3. 10 Majority op., ¶40. 11 Id., ¶¶38, 39.

14 No. 2020AP1032.pdr

for Review, which I address below. The majority opinion also

chooses to ignore the circuit court's failure to meet its

obligations under SCR 70.36(1)(b),12 which required a decision on

the motion for a temporary injunction within 180 days. The

majority opinion does so as it also chooses to ignore our

obligation to supervise all Wisconsin courts. Wis. Const. art.

VII, § 3.13

¶73 As I begin, I remind the reader that under our

constitutional supervisory authority, we have the power to

decide whether parts of MMSD's Policies should be enjoined, as

was requested in the Petition for Review. This court is vested

with "superintending and administrative authority over all

courts." Koschkee v. Evers, 2018 WI 82, ¶8, 382 Wis. 2d 666,

913 N.W.2d 878 (quoting Wis. Const. art. VII, § 3). This

superintending authority is "as broad and as flexible as

necessary to insure the due administration of justice in the

courts of this state." Id. (quoting In re Kading, 70 Wis. 2d

508, 520, 235 N.W.2d 409 (1975)). Further, this power is not

Supreme Court Rule 70.36 requires circuit court judges to 12

"decide each matter submitted for decision within 90 days of the date on which the matter is submitted to the judge in final form." Judges may file for extensions with the chief judge of the judicial administrative district. However, even this extension, which must be requested and granted within five days of the overrunning the original 90 day timeline, is available for "one additional period of 90 days." SCR 70.36(1)(a). Any further extension must be granted by the Supreme Court and will be done only "for specific matters as exigent circumstances may require." SCR 70.36(1)(b).

Article VII, Section 3 of the Wisconsin Constitution 13

provides: "The supreme court shall have superintending and administrative authority over all courts."

15 No. 2020AP1032.pdr

strictly limited to situations in which it was previously used,

continuing supervision is required in response to changing needs

and circumstances. Koschkee, 382 Wis. 2d 666, ¶8.

¶74 In Koschkee, we considered our authority over the

practice of law, in and out of court as connected with the

exercise of judicial power and the administration of justice.

Id., ¶9. We employed our supervisory authority because we

concluded that the "necessities of justice" required us to do

so. Id., ¶12. We used it to conclude that "Evers and DPI are

entitled to counsel of their choice and are not required to be

represented by DOJ." Id. Here, we should exercise our

supervisory authority over a circuit court's failure to decide a

motion that has been pending for more than two years contrary to

SCR 70.36 and contrary to the administration of justice.

¶75 The pending motion is for a temporary injunction. In

Wisconsin, courts may grant a temporary injunction to restrain a

party's actions:

When it appears from a party's pleading that the party is entitled to judgment and any part thereof consists in restraining some act, the commission or continuance of which during the litigation would injure the party, or when during the litigation it shall appear that a party is doing or threatens or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party and tending to render the judgment ineffectual. Wis. Stat. § 813.02(1)(a). The motion for temporary injunction

should have been decided years ago. In its present undecided

state, there is no decision from which to appeal, and yet the circuit court's failure to decide the pending motion for a

temporary injunction stands in the way of the administration of 16 No. 2020AP1032.pdr

justice in this litigation. This is so because by failing to

decide the pending motion, the circuit court effectively denied

it and also denied the parents the opportunity to appeal an

unfavorable ruling.

¶76 In order to fully understand this dissent, it is

important to appreciate the fundamental constitutional right

upon which these proceedings are grounded. Therefore, a review

of long-standing protections for the relationship of parent and

child will be helpful.

¶77 For hundreds of years, parents' right to direct the

upbringing and education of their children has been a

fundamental and protected right under Article I, Section 1 of

the Wisconsin Constitution and the Due Process Clause of the

Fourteenth Amendment. Michels v. Lyons, 2019 WI 57, ¶15, 387

Wis. 2d 1, 927 N.W.2d 486; Jackson v. Benson, 218 Wis. 2d 835,

879, 578 N.W.2d 602 (1998); Wis. Indus. Sch. for Girls v. Clark

Cnty., 103 Wis. 651, 668-70, 79 N.W. 422 (1899).

¶78 As many Supreme Court decisions have shown, the Due Process Clause of the Fourteenth Amendment of the United States

Constitution protects parents' right to decide the upbringing of

their own children. Meyer v. Nebraska, 262 U.S. 390, 403 (1923)

(concluding that parents possessed the right to direct whether

their children would study German in elementary school under the

Fourteenth Amendment); Pierce v. Soc'y of the Sisters of the

Holy Names of Jesus & Mary, 268 U.S. 510, 534-35 (1925)

(concluding that the state requirement that children must attend public schools was contrary to the parents' Fourteenth Amendment

17 No. 2020AP1032.pdr

liberty interest of directing the upbringing and education of

their children).

¶79 The United States Supreme Court has continually

reinforced the primacy of parents when making decisions

concerning the upbringing of their children, considering the

right as "established beyond debate as an enduring American

tradition." Wisconsin v. Yoder, 406 U.S. 205, 232-33 (1972);

see also Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ("It

is cardinal with us that the custody, care and nurture of the

child reside first in the parents, whose primary function and

freedom include preparation for obligations the state can

neither supply nor hinder."). When it comes to a decision on

"whether to expose their child[] to certain . . . ideas[,]" the

parents, not the government, "should be the ones to choose." In

re Custody of Smith, 969 P.2d 21, 31 (Wash. 1998), aff'd sub

nom. Troxel v. Granville, 530 U.S. 57 (2000).

¶80 Serving as a foundation of this right is the

presumption that parents "possess what a child lacks in maturity, experience, and capacity for judgment required for

making life's difficult decisions." Parham v. J.R., 442 U.S.

584, 602 (1979). Furthermore, natural bonds of affection "lead

parents to act in the best interests of their children." Id.

(citing 1 W. Blackstone, Commentaries, at *447.). Of course,

this presumption may be rebutted. However, "[t]he state's power

to displace parental discretion is limited . . . and must be

justified on a case-by-case basis." Schleifer by Schleifer v.

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City of Charlottesville, 159 F.3d 843, 861 (4th Cir. 1998)

(Michael, J., dissenting).

¶81 In Troxel v. Granville, which involved a Washington

statute that permitted visitation rights "at any time" if

visitation was in the "best interests of the child[,]" the

Supreme Court held the statute was an unconstitutional

interference with the fundamental right of parents to rear their

children. Troxel, 530 U.S. at 67-78. The court explained that

"[t]he liberty interest at issue in this case——the interest of

parents in the care, custody, and control of their children——is

perhaps the oldest of the fundamental liberty interests

recognized by this Court." Id. at 65. The court reasoned that

"there is a presumption that fit parents act in the best

interests of their children" and providing grandparents greater

access to grandchildren, despite the decision of the parent, is

an unconstitutional interference with parental rights. Id. at

68.

¶82 Recently, courts in other jurisdictions have addressed the same subject matter as MMSD's incursion on parental rights

in the matter before us. In Eknes-Tucker v. Marshall, No. 2:22-

cv-184-LCB, 2022 WL 1521889, at *4 (M.D. Ala. May 13, 2022), the

District Court for the Northern Division of Alabama decided that

parents, not the state, are the proper decision-makers for

medical treatment their child may receive involving gender-

identity and transgender treatment. Id. There, the parents of

transgender children challenged and sought to enjoin enforcement of a newly-passed "Vulnerable Child Compassion and Protection

19 No. 2020AP1032.pdr

Act" (the Act), which banned certain medical procedures used for

the treatment of gender dysphoria in minors.14

¶83 Parent plaintiffs claimed that the Act violated "their

constitutional right to direct the medical care of their

children under the Due Process Clause of the Fourteenth

Amendment." Id. at *7. In determining whether enforcement of

the Act should be enjoined during the lawsuit, the court

concluded that parents had a high likelihood of success on the

merits of their constitutional claim under the Fourteenth

Amendment. Id. The court reiterated that a "parent's right 'to

make decisions concerning the care, custody, and control of

their children' is one of 'the oldest of the fundamental liberty

interests' recognized by the Supreme Court." Id. at *7 (quoting

Troxel, 530 U.S. at 65–66). Furthermore, "[e]ncompassed within

this right is the more specific right to direct a child's

medical care." Eknes-Tucker, 2022 WL 1521889, at *7 (citing

Bendiburg v. Dempsey, 909 F.2d 463, 470 (11th Cir. 1990)

(recognizing "the right of parents to generally make decisions concerning the treatment to be given to their children").

¶84 Against this backdrop, the court reasoned that parents

likely would succeed on the merits of their claim because the

Act "prevents Parent Plaintiffs from choosing that course of

treatment for their children by criminalizing the use of

Gender dysphoria "is a clinically diagnosed incongruence 14

between one's gender identity and assigned gender. If untreated, gender dysphoria may cause or lead to anxiety, depression, eating disorders, substance abuse, self-harm, and suicide." Eknes-Tucker v. Marshall, No. 2:22-cv-184-LCB, 2022 WL 1521889, at *1 (M.D. Ala. May 13, 2022).

20 No. 2020AP1032.pdr

transitioning medications to treat gender dysphoria in minors,

even at the independent recommendation of a licensed

pediatrician." Eknes-Tucker, 2022 WL 1521889, at *7.

¶85 When a government action "directly and substantially

implicates a fit parent's fundamental liberty interest in the

care and upbringing of his or her child, [governmental action]

is subject to strict scrutiny review." Michels, 387 Wis. 2d 1,

¶22. "Ordinarily, where a fundamental liberty interest

protected by the substantive due process component of the

Fourteenth Amendment is involved, the government cannot infringe

on that right 'unless the infringement is narrowly tailored to

serve a compelling state interest.'" Johnson v. City of

Cincinnati, 310 F.3d 484, 502 (6th Cir. 2002) (quoting

Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). The MMSD

has identified no compelling state interest upon which MMSD

contends the Policies are based.

¶86 The parents renewed their request for a temporary

injunction in their Petition for Review, and they ask us to grant them relief. The pending status of the parents' motion

before the circuit court is not a deterrent to our

superintending authority, which is grounded in our

constitutional obligation to supervise all Wisconsin courts. In

the exercise of our superintending authority and in order to

afford the administration of justice in this litigation, we

should grant the temporary injunction under the undisputed facts

and the law presented herein.

21 No. 2020AP1032.pdr

¶87 I begin by noting that the granting of a temporary

injunction required the parents to show: "(1) a reasonable

probability of success on the merits; (2) a lack of an adequate

remedy at law; (3) that the movant will suffer irreparable harm

in the absence of an injunction; and (4) that a balancing of the

equities favors issuing the injunction." Wisconsin Legislature

v. Evers, No. 2020AP608-OA, unpublished order (Wis. Apr. 6,

2020) (order granting leave to commence an original action and

enjoining Executive Order No. 74); see also Kocken v. Wis.

Council 40, 2007 WI 72, ¶22, 301 Wis. 2d 266, 732 N.W.2d 828

(listing requirements for injunctive relief to be a "finding a

likelihood of success on the merits, a likelihood of irreparable

harm, and an inadequate remedy at law."); Spheeris Sporting

Goods, Inc. v. Spheeris on Capitol, 157 Wis. 2d 298, 306, 459

N.W.2d 581 (Ct. App. 1990) (explaining a movant must show a

reasonable probability of success on the merits, an inadequate

remedy at law, and irreparable harm); Grootemaat, 89 Wis. 2d at

520. ¶88 The administration of justice often requires

significant judicial effort. But that is what the people of

Wisconsin elected us to provide. We are expected not to shirk

our responsibilities when hard legal disputes are presented.

This case is grounded in the contention that MMSD has usurped

fundamental parental rights, some of which relate to healthcare

decisions for their children. The administration of justice

requires that we not ignore the parents' plea for a judicial decision, as the majority opinion has done.

22 No. 2020AP1032.pdr

¶89 The parents satisfy each factor necessary to success

on their motion for a temporary injunction. First, they have

shown a strong likelihood of success on the merits of their

claim that MMSD's Policies interfere with their constitutional

right to raise their children as they think best. The lack of a

temporary injunction also keeps MMSD in charge of enabling

healthcare choices without parental consent for children who

have gender-identity issues. The constitutional presumption is

that parents will act in the best interest of their child.

Troxel, 530 U.S. at 69. Allowing a school to reassign a child's

gender, flips this constitutional presumption on its head by

assuming that parents will not act in their child's best

interest. Both the United States Constitution and the Wisconsin

Constitution support the conclusion that MMSD's Policies cannot

that parents are unfit, a hearing, a court order, and without

according parents due process. Instead, under MMSD's explicit

guidelines, parents are affirmatively excluded from decision- making unless their child consents.15

MMSD's Policies affirmatively hide information from 15

parents that relates to their children. For example, "School staff shall not disclose any information that may reveal a student's gender identity to others, including parents or guardians and other school staff, unless legally required to do so or unless the student has authorized such disclosure." MMSD Policies, 9. "Staff will respect student confidentiality throughout the investigation, be careful not to 'out' students while communicating with family/peers, and involve the targeted student throughout the intervention process." Id., 11. "In MMSD with the permission of our students, we will strive to include families along the journey to support their LGBTQ+ youth." Id., 16. "Students will be called by their affirmed name and pronouns regardless of parent/guardian permission to 23 No. 2020AP1032.pdr

¶90 Parents have the constitutional right to direct the

upbringing and education of their children. Article I, Section

1 of the Wisconsin Constitution provides fundamental protection

for that parental right. Jackson, 218 Wis. 2d at 879

(explaining that "Wisconsin has traditionally accorded parents

the primary role in decisions regarding the education and

upbringing of their children."). We have interpreted Article I,

Section 1 of the Wisconsin Constitution as affording the same

protections as are provided by the Fourteenth Amendment. Mayo

v. Wis. Injured Patients & Families Comp. Fund, 2018 WI 78, ¶35,

383 Wis. 2d 1, 914 N.W.2d 678. The right of parents to decide

on the upbringing of their children has been so long established

as "beyond debate as an enduring American tradition." Yoder,

406 U.S. at 232-33.

¶91 What is occurring in Wisconsin schools has been

occurring in other schools around the country. Parents are

bringing their concerns to court, and courts around the country

have confirmed that parental constitutional rights are violated when they are prevented from being involved in gender-identity

concerns of their children. Eknes-Tucker, 2022 WL 1521889, at

*7. Accordingly, I conclude that parents have shown a strong

likelihood of success on the merits of their claim.

¶92 Second, parents have no remedy at law. Without an

injunction to temporarily enjoin MMSD from implementing its

policies, MMDS will continue to enforce them. Parents will not

be told that their child is socially transitioning to a sex

change their name and gender in MMSD systems." Id., 18.

24 No. 2020AP1032.pdr

different from that noted at birth without the child's consent,

yet social transitioning is a healthcare choice for parents to

make. Without an injunction, the parents have no way of

becoming involved in such a fundamental decision.

¶93 Third, without an injunction the parents will suffer

irreparable harm. The MMSD Policies are on-going and continue

to invade parents' constitutional right to parent their

children. Many courts consider the on-going infringement of a

constitutional right enough and require no further showing of

irreparable injury. See e.g., Awad v. Ziriax, 670 F.3d 1111,

1131 (10th Cir. 2012). We should do so as well.

¶94 Fourth, the balance of equities favors the parents,

who are ready, willing and able to parent their children. The

public interest is served by validation of parental

constitutional rights and any harm alleged by MMSD from parental

involvement in decision-making for their children runs directly

contrary to the presumption that parents act in the best

interests of their children. Troxel, 530 U.S. at 69. Furthermore, because MMSD's Policies are carried out by school

officials who are state actors, whose conduct described in the

MMSD Policies infringes on the parents' constitutional right to

make important choices for their children, the school officials

must yield to the constitution. Gruenke v. Seip, 225 F.3d 290,

307 (3d Cir. 2000) (explaining that "[i]t is not educators, but

parents who have primary rights in the upbringing of children.

School officials have only a secondary responsibility and must respect these rights.").

25 No. 2020AP1032.pdr

¶95 The parents brought a motion for a temporary

injunction to enjoin MMSD from: (1) enabling children to

parental consent; (2) preventing teachers and other staff from

concerns; and (3) deceiving parents by using different names and

pronouns in front of parents than are used at school. The

parents have satisfied all the necessary criteria for a

temporary injunction.

III. CONCLUSION

¶96 In conclusion, to be clear, although I address the

question of pseudonym use, the heart of this case is the

fundamental, constitutional presumption that parents have the

right to raise their children according to their beliefs of what

is in the child's best interests. Parental names are not

relevant to vindicating that constitutional right. Here, the

circuit court erred when it concluded that it could not permit

the parents to employ pseudonyms in this lawsuit. The court of appeals erred in affirming that decision, even while noting that

the circuit court did have the power to permit the use of

pseudonyms. The majority opinion errs by concluding that there

is no authority for anonymous litigation in Wisconsin.16

¶97 Furthermore, I conclude that we can and should employ

our constitutional supervisory authority to decide this

constitutional controversy because it cries for judicial

resolution. This court, as a court of last resort, should act

16 Majority op., ¶¶15-20.

26 No. 2020AP1032.pdr

affirmatively to grant the parents' request for a temporary

parental consent; (2) preventing teachers and other staff from

concerns; and (3) deceiving parents by using different names and

pronouns in front of parents than are used at school.

¶98 The majority opinion defends abdication of its

responsibility to address parents' constitutional arguments by

attacking the dissent's support of parental rights. For the

reasons set out above, I conclude that the circuit court erred

in not granting the temporary injunction that was requested in

February of 2020. Because the majority opinion chooses not to

decide the controversy presented, I respectfully dissent.

¶99 I am authorized to state the Chief Justice ANNETTE

KINGSLAND ZIEGLER and Justice REBECCA GRASSL BRADLEY join this

dissent.

27 No. 2020AP1032.pdr