When indebtedness under sub. (2) is incurred in the acquisition of lands by cities, or by counties or sewerage districts having a population of 150,000 or over, for public, municipal purposes, or for the permanent improvement thereof, or to purchase, acquire, construct, extend, add to or improve a sewage collection or treatment system which services all or a part of such city or county, the city, county or sewerage district incurring the indebtedness shall, before or at the time of so doing, provide for the collection of a direct annual tax sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof within a period not exceeding 50 years from the time of contracting the same.
An indebtedness created for the purpose of purchasing, acquiring, leasing, constructing, extending, adding to, improving, conducting, controlling, operating or managing a public utility of a town, village, city or special district, and secured solely by the property or income of such public utility, and whereby no municipal liability is created, shall not be considered an indebtedness of such town, village, city or special district, and shall not be included in arriving at the debt limitation under sub. (2). [1872 J.R. 11, 1873 J.R. 4, 1874 c. 37, vote Nov. 1874; 1909 J.R. 44, 1911 J.R. 42, 1911 c. 665, vote Nov. 1912; 1921 J.R. 39S, 1923 J.R. 34, 1923 c. 203, vote Nov. 1924; 1929 J.R. 74, 1931 J.R. 71, vote Nov. 1932; 1949 J.R. 12, 1951 J.R. 6, vote April 1951; 1953 J.R. 47, 1955 J.R. 12, vote April 1955; 1957 J.R. 59, 1959 J.R. 32, vote Nov. 1960; 1959 J.R. 35, 1961 J.R. 8, vote April 1961; 1961 J.R. 71, 1963 J.R. 8, vote April 2, 1963; 1963 J.R. 44, 1965 J.R. 51 and 58, vote April 1966; 1979 J.R. 43, 1981 J.R. 7, vote April 1981
Authorizing municipalities to issue revenue bonds to finance industrial development projects, is not an improper delegation of authority in a matter of statewide concern. When the purchase price of property to be acquired is payable exclusively from income or profits to be derived from the property purchased and a mortgage or lien attaches only to that property, no debt is created in violation of this section of the constitution. State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32
, 205 N.W.2d 784
This section does not invalidate provisions of the Solid Waste Recycling Authority Act dealing with required use of the authority's facilities, user charges, and condemnation powers, since the purpose of the act involves a matter of statewide concern. Wisconsin Solid Waste Recycling Auth. v. Earl, 70 Wis. 2d 464
, 235 N.W.2d 648
The provision of s. 144.07 (1m) [now s. 281.34 (1m)], that voids a DNR sewerage connection order if electors in an affected town area reject annexation to the city ordered to extend sewerage service, represents valid legislative balancing and accommodation of 2 statewide concerns, urban development and pollution control. City of Beloit v. Kallas, 76 Wis. 2d 61
, 250 N.W.2d 342
No conflict was found between an ordinance and a statute dealing with related subject matter when the former was paramountly in the local interest and the latter was of statewide concern. State ex rel. Michalek v. LeGrand, 77 Wis. 2d 520
, 253 N.W.2d 505
Refusal by a city to provide sewerage service to a portion of a town unless inhabitants agreed to annexation of that portion did not violate antitrust law. Town of Hallie v. City of Chippewa Falls, 105 Wis. 2d 533
, 314 N.W.2d 321
A city ordinance that regulated lending practices of state chartered savings and loans with regard to discrimination was preempted by state statutes. Anchor Savings & Loan Association. v. Madison EOC, 120 Wis. 2d 391
, 355 N.W.2d 234
Liberally construing home rule authority, a city is not authorized to institute a public safety officer program. Local Union No. 487 v. Eau Claire, 147 Wis. 2d 519
, 433 N.W.2d 578
Antitrust law demonstrates the legislature's intent to subordinate a city's home-rule authority to its provisions. Unless legislation at least impliedly authorizes a city's anticompetitive action, the city has violated antitrust law. Amer Med. Transp. v. Curtis-University, 154 Wis. 2d 135
, 452 N.W.2d 575
A school district did not incur indebtedness by entering into a lease-purchase agreement for a new school when the district, by electing not to appropriate funds for the following fiscal year's rental payment, had the option to terminate the agreement with no future payment obligation. Deick v. Unified School District of Antigo, 165 Wis. 2d 458
, 477 N.W.2d 613
Tax increment financing bonds that a city proposed to issue under s. 66.46 [now s. 66.1105] constituted debt under this section and were subject to the city's debt limits. City of Hartford v. Kirley, 172 Wis. 2d 191
, 493 N.W.2d 45
The fact that the regulation of sex offenders is a matter of statewide concern does not preclude municipalities from using their home-rule powers to impose further restrictions consistent with those imposed by the state. An ordinance regulating an area of statewide concern is preempted only if: (1) the legislature has expressly withdrawn the power of municipalities to act; (2) the ordinance logically conflicts with state legislation; (3) the ordinance defeats the purpose of state legislation; or (4) the ordinance violates the spirit of state legislation. City of South Milwaukee v. Kester, 2013 WI App 50
, 347 Wis. 2d 334
, 830 N.W.2d 710
While the home rule amendment authorizes municipal regulation over matters of local concern and protects that regulation against conflicting state law, state law will still preempt that municipal regulation if it with uniformity affects every city or every village. Madison Teachers, Inc. v. Walker, 2014 WI 99
, 358 Wis. 2d 1
, 851 N.W.2d 337
Whether a particular statute relates to a matter of statewide concern is for the courts to determine on a case-by-case basis. Generally, state legislation falls into three categories: 1) those involving matters exclusively of statewide concern; 2) those involving matters entirely of local character; and 3) those that encompass both state and local concerns. When legislation falls under the 3rd category, the court must determine whether state or local concerns are paramount and conduct its analysis accordingly. Milwaukee Police Association v. City of Milwaukee, 2015 WI App 60
, 364 Wis. 2d 626
, 869 N.W.2d 522
The uniformity requirement in sub. (1) does not simply mean that a legislative enactment applying to all municipalities passes the test. The language used in the state constitution is “affects," not “applies," indicating that a more substantive analysis is required. Enactments of the legislature that do not affect all cities uniformly are to be subordinate to legislation of cities within their constitutional field. Legislative pronouncements of statewide concern are not controlling, and it is the judiciary that has been charged with the ultimate determination of what is a matter of statewide concern. Milwaukee Police Association v. City of Milwaukee, 2015 WI App 60
, 364 Wis. 2d 626
, 869 N.W.2d 522
The scope of legislative activity covered by “ordinances” and “resolutions,” extends to formal and informal enactments that address matters both general and specific, in a manner meant to be either temporary or permanent, and which can be characterized as administrative or otherwise. The court will treat a municipality's legislative device as an ordinance or resolution, regardless of how it may be denominated, so long as it functions within the scope of this definition. There is no legislative action a municipality could take that would not come within the ambit of “ordinance" or “resolution." Consequently, if a statute removes the authority of a municipality's governing body to adopt an ordinance or resolution on a particular subject, the governing body loses all legislative authority on that subject. Wisconsin Carry, Inc. v. City of Madison, 2017 WI 19
, 373 Wis. 2d 543
, 892 N.W.2d 233
An agreement to purchase park land whereby a county is to make deferred payments from an existing nonlapsing account, sufficient to cover the entire obligation, secured by mortgaging the property to the grantor, would not create an obligation within the ambit of ch. 67 nor constitute a debt in the context of this section. 63 Atty. Gen. 309.
Local government units cannot include the value of tax-exempt manufacturing machinery and specific processing equipment and tax exempt merchants' stock-in-trade, manufacturers' materials and finished products, and livestock in their property valuation totals for non-tax purposes, such as for municipal debt ceilings, tax levy limitations, shared tax distributions, and school aid payments. 63 Atty. Gen. 465.
There is no constitutional prohibition against increasing either municipal tax rate limitations or increasing the municipal tax base. However, a constitutional amendment would be required to increase municipal debt limitations. 63 Atty. Gen. 567.
“Home rule" discussed. 69 Atty. Gen. 232.
Home rule applicability to libraries and library systems contrasted. 73 Atty. Gen. 86.
The housing of out-of-state prisoners by the state, a county, or a municipality may only be as authorized by statute, which is currently limited to the Interstate Corrections Compact, s. 302.25. OAG 2-99.
Conflicts between state statute and local ordinance in Wisconsin. 1975 WLR 840.
Acquisition of lands by state and subdivisions; sale of excess. Section
[As created Nov. 1912 and amended April 1956
] The state or any of its counties, cities, towns or villages may acquire by gift, dedication, purchase, or condemnation lands for establishing, laying out, widening, enlarging, extending, and maintaining memorial grounds, streets, highways, squares, parkways, boulevards, parks, playgrounds, sites for public buildings, and reservations in and about and along and leading to any or all of the same; and after the establishment, layout, and completion of such improvements, may convey any such real estate thus acquired and not necessary for such improvements, with reservations concerning the future use and occupation of such real estate, so as to protect such public works and improvements, and their environs, and to preserve the view, appearance, light, air, and usefulness of such public works. If the governing body of a county, city, town or village elects to accept a gift or dedication of land made on condition that the land be devoted to a special purpose and the condition subsequently becomes impossible or impracticable, such governing body may by resolution or ordinance enacted by a two-thirds vote of its members elect either to grant the land back to the donor or dedicator or his heirs or accept from the donor or dedicator or his heirs a grant relieving the county, city, town or village of the condition; however, if the donor or dedicator or his heirs are unknown or cannot be found, such resolution or ordinance may provide for the commencement of proceedings in the manner and in the courts as the legislature shall designate for the purpose of relieving the county, city, town or village from the condition of the gift or dedication. [1909 J.R. 38, 1911 J.R. 48, 1911 c. 665, vote Nov. 1912; 1953 J.R. 35, 1955 J.R. 36, vote April 1956
A purchase of land by a city for industrial development that is leased with an option to buy or to renew the lease with a minimal rent did not violate this section. State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32
, 205 N.W.2d 784
General banking law.
[As created Nov. 1902 and amended April 1981
] The legislature may enact a general banking law for the creation of banks, and for the regulation and supervision of the banking business. [1899 J.R. 13, 1901 J.R. 2, 1901 c. 73, vote Nov. 1902; 1979 J.R. 21, 1981 J.R. 9, vote April 1981
Referendum on banking laws. Section
[Repealed Nov. 1902; see 1899 J.R. 13, 1901 J.R. 2, 1901 c. 73, vote Nov. 1902.
Constitutional amendments. Section
Any amendment or amendments to this constitution may be proposed in either house of the legislature, and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature to be chosen at the next general election, and shall be published for three months previous to the time of holding such election; and if, in the legislature so next chosen, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the legislature to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe; and if the people shall approve and ratify such amendment or amendments by a majority of the electors voting thereon, such amendment or amendments shall become part of the constitution; provided, that if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately.
It is within the discretion of the legislature to submit several distinct propositions to the electorate as one constitutional amendment if they relate to the same subject matter and are designed to accomplish one general purpose. Milwaukee Alliance v. Elections Board, 106 Wis. 2d 593
, 317 N.W.2d 420
Unless a constitutional amendment provides otherwise, the amendment takes effect upon the certification of a statewide canvass of the votes as provided in s. 7.70 (3) (h). The legislature has the authority under Art. XII, s. 1 to adopt reasonable election laws to provide that state constitutional amendments are effective after canvass and certification. State v. Gonzales, 2002 WI 59
, 253 Wis. 2d 134
, 645 N.W.2d 264
In order to constitute more than one amendment in violation of this section, the propositions submitted must relate to more than one subject, and have at least two distinct and separate purposes not dependent upon or connected with each other. The constitution grants the legislature considerable discretion in the manner in which amendments are drafted and submitted to the people. An otherwise valid amendment will be construed as more than one amendment only in exceedingly rare circumstances. The propositions need only relate to the same subject and tend to effect or carry out one general purpose. The general purpose of an amendment may be deduced from the text of the amendment itself and from the historical context in which the amendment was adopted. McConkey v. Van Hollen, 2010 WI 57
, 326 Wis. 2d 1
; 783 N.W.2d 855
The two propositions contained in the amendment creating Article XIII, section 13, plainly relate to the subject of marriage. The general purpose of the marriage amendment is to preserve the legal status of marriage as between only one man and one woman. Both propositions in the marriage amendment relate to and are connected with this purpose. Therefore, the marriage amendment does not violate the separate amendment rule of Article XII, Section 1. McConkey v. Van Hollen, 2010 WI 57
, 326 Wis. 2d 1
; 783 N.W.2d 855
The taking of yea and nay votes and the entry on the journals of the senate and assembly can be complied with by recording the total aye vote together with a listing of the names of those legislators who voted no, were absent or not voting or were paired on the question. Art. V, sec. 10; Art. VIII, sec. 8; Art. XII, sec. 1 are discussed. 63 Atty. Gen. 346.
The legislature must resubmit a proposed amendment to the people when the previous referendum was voided by court order, notwithstanding an appeal therefrom. 65 Atty. Gen. 42.
Symposium: Is the Wisconsin Constitution Obsolete? 90 MLR (Spring 2007 whole volume).
Constitutional conventions. Section
If at any time a majority of the senate and assembly shall deem it necessary to call a convention to revise or change this constitution, they shall recommend to the electors to vote for or against a convention at the next election for members of the legislature. And if it shall appear that a majority of the electors voting thereon have voted for a convention, the legislature shall, at its next session, provide for calling such convention.
Political year; elections. Section
[As amended Nov. 1882 and April 1986
] The political year for this state shall commence on the first Monday of January in each year, and the general election shall be held on the Tuesday next succeeding the first Monday of November in even-numbered years. [1881 J.R. 16A, 1882 J.R. 3, 1882 c. 290, vote Nov. 1882; 1983 J.R. 30, 1985 J.R. 14, vote April 1986
[Repealed April 1975; see 1973 J.R. 10, 1975 J.R. 4, vote April 1975.
Eligibility to office.
3. [As amended Nov. 1996
No member of congress and no person holding any office of profit or trust under the United States except postmaster, or under any foreign power, shall be eligible to any office of trust, profit or honor in this state.
No person convicted of a felony, in any court within the United States, no person convicted in federal court of a crime designated, at the time of commission, under federal law as a misdemeanor involving a violation of public trust and no person convicted, in a court of a state, of a crime designated, at the time of commission, under the law of the state as a misdemeanor involving a violation of public trust shall be eligible to any office of trust, profit or honor in this state unless pardoned of the conviction.
No person may seek to have placed on any ballot for a state or local elective office in this state the name of a person convicted of a felony, in any court within the United States, the name of a person convicted in federal court of a crime designated, at the time of commission, under federal law as a misdemeanor involving a violation of public trust or the name of a person convicted, in a court of a state, of a crime designated, at the time of commission, under the law of the state as a misdemeanor involving a violation of public trust, unless the person named for the ballot has been pardoned of the conviction. [1995 Jt. Res. 28
The 1996 amendment of this section was not an ex post facto law and was not in violation of the federal equal protection or due process clauses. Swan v. LaFollette, 231 Wis. 2d 633
, 605 N.W.2d 640
(Ct. App. 1999), 99-0127
A convicted felon who has been restored to his civil rights, pursuant to 57.078, 1987 stats. [now s. 304.078] is barred from the office of notary public by this section unless pardoned. 63 Atty. Gen. 74.
This section does not bar a “congressional home secretary" from serving as a member of the Natural Resources Board. 64 Atty. Gen. 1.
A felony conviction and sentencing of a state senator creates a vacancy in the office without any action by the senate. 65 Atty. Gen. 264.
Nonpardoned felons may not serve as sheriffs, deputy sheriffs, patrolmen, policemen, or constables as these officers are “public officers" and they hold an “office of trust, profit or honor in this state" under this section. 65 Atty. Gen. 292.
Great seal. Section
It shall be the duty of the legislature to provide a great seal for the state, which shall be kept by the secretary of state, and all official acts of the governor, his approbation of the laws excepted, shall be thereby authenticated.
Residents on Indian lands, where to vote. Section
[Repealed April 1986; see 1983 J.R. 30, 1985 J.R. 14, vote April 1986.
The elective officers of the legislature, other than the presiding officers, shall be a chief clerk and a sergeant at arms, to be elected by each house.
Division of counties.
No county with an area of nine hundred square miles or less shall be divided or have any part stricken therefrom, without submitting the question to a vote of the people of the county, nor unless a majority of all the legal voters of the county voting on the question shall vote for the same.
Removal of county seats. Section
No county seat shall be removed until the point to which it is proposed to be removed shall be fixed by law, and a majority of the voters of the county voting on the question shall have voted in favor of its removal to such point.
Election or appointment of statutory officers. Section
All county officers whose election or appointment is not provided for by this constitution shall be elected by the electors of the respective counties, or appointed by the boards of supervisors, or other county authorities, as the legislature shall direct. All city, town and village officers whose election or appointment is not provided for by this constitution shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose. All other officers whose election or appointment is not provided for by this constitution, and all officers whose offices may hereafter be created by law, shall be elected by the people or appointed, as the legislature may direct.
Vacancies in office.
[As amended April 1979
The legislature may declare the cases in which any office shall be deemed vacant, and also the manner of filling the vacancy, where no provision is made for that purpose in this constitution.
Whenever there is a vacancy in the office of lieutenant governor, the governor shall nominate a successor to serve for the balance of the unexpired term, who shall take office after confirmation by the senate and by the assembly. [1977 J.R. 32, 1979 J.R. 3, vote April 1979
A felony conviction and sentencing of a state senator creates a vacancy in the office without any action by the senate. 65 Atty. Gen. 264.
Passes, franks and privileges. Section
[As created Nov. 1902 and amended Nov. 1936
] No person, association, copartnership, or corporation, shall promise, offer or give, for any purpose, to any political committee, or any member or employe thereof, to any candidate for, or incumbent of any office or position under the constitution or laws, or under any ordinance of any town or municipality, of this state, or to any person at the request or for the advantage of all or any of them, any free pass or frank, or any privilege withheld from any person, for the traveling accommodation or transportation of any person or property, or the transmission of any message or communication.
No political committee, and no member or employee thereof, no candidate for and no incumbent of any office or position under the constitution or laws, or under any ordinance of any town or municipality of this state, shall ask for, or accept, from any person, association, copartnership, or corporation, or use, in any manner, or for any purpose, any free pass or frank, or any privilege withheld from any person, for the traveling accommodation or transportation of any person or property, or the transmission of any message or communication.
Any violation of any of the above provisions shall be bribery and punished as provided by law, and if any officer or any member of the legislature be guilty thereof, his office shall become vacant.
No person within the purview of this act shall be privileged from testifying in relation to anything therein prohibited; and no person having so testified shall be liable to any prosecution or punishment for any offense concerning which he was required to give his testimony or produce any documentary evidence.
Notaries public and regular employees of a railroad or other public utilities who are candidates for or hold public offices for which the annual compensation is not more than three hundred dollars to whom no passes or privileges are extended beyond those which are extended to other regular employees of such corporations are excepted from the provisions of this section. [1899 J.R. 8, 1901 J.R. 9, 1901 c. 437, vote Nov. 1902; 1933 J.R. 63, 1935 J.R. 98, vote Nov. 1936]
This section does not apply to a county ordinance granting special reserved parking privileges in a county ramp to county employees. Dane County v. McManus, 55 Wis. 2d 413
, 198 N.W.2d 667
Recall of elective officers. Section
[As created Nov. 1926 and amended April 1981
] The qualified electors of the state, of any congressional, judicial or legislative district or of any county may petition for the recall of any incumbent elective officer after the first year of the term for which the incumbent was elected, by filing a petition with the filing officer with whom the nomination petition to the office in the primary is filed, demanding the recall of the incumbent.
The recall petition shall be signed by electors equalling at least twenty-five percent of the vote cast for the office of governor at the last preceding election, in the state, county or district which the incumbent represents.
The filing officer with whom the recall petition is filed shall call a recall election for the Tuesday of the 6th week after the date of filing the petition or, if that Tuesday is a legal holiday, on the first day after that Tuesday which is not a legal holiday.
The incumbent shall continue to perform the duties of the office until the recall election results are officially declared.
Unless the incumbent declines within 10 days after the filing of the petition, the incumbent shall without filing be deemed to have filed for the recall election. Other candidates may file for the office in the manner provided by law for special elections. For the purpose of conducting elections under this section:
When more than 2 persons compete for a nonpartisan office, a recall primary shall be held. The 2 persons receiving the highest number of votes in the recall primary shall be the 2 candidates in the recall election, except that if any candidate receives a majority of the total number of votes cast in the recall primary, that candidate shall assume the office for the remainder of the term and a recall election shall not be held.
For any partisan office, a recall primary shall be held for each political party which is by law entitled to a separate ballot and from which more than one candidate competes for the party's nomination in the recall election. The person receiving the highest number of votes in the recall primary for each political party shall be that party's candidate in the recall election. Independent candidates and candidates representing political parties not entitled by law to a separate ballot shall be shown on the ballot for the recall election only.
When a recall primary is required, the date specified under sub. (2) shall be the date of the recall primary and the recall election shall be held on the Tuesday of the 4th week after the recall primary or, if that Tuesday is a legal holiday, on the first day after that Tuesday which is not a legal holiday.
The person who receives the highest number of votes in the recall election shall be elected for the remainder of the term.
After one such petition and recall election, no further recall petition shall be filed against the same officer during the term for which he was elected.
This section shall be self-executing and mandatory. Laws may be enacted to facilitate its operation but no law shall be enacted to hamper, restrict or impair the right of recall. [1923 J.R. 73, 1925 J.R. 16, 1925 c. 270, vote Nov. 1926; 1979 J.R. 41, 1981 J.R. 6, vote April 1981
This section applies to members of Congress. 68 Atty. Gen. 140.
Article XIII, section 12 requires a separate petition for the recall of each individual incumbent elective officer. A petition for the recall of an incumbent governor under article XIII, section 12 (1) requires the filing officer to call a recall election for that incumbent's office, provided that the terms of article XIII, section 12 have been met. A recall election of a lieutenant governor shall be called only if a petition for recall is filed for that incumbent elected officer, in which case voters shall vote separately for that office. OAG 4-11.
[As created Nov. 2006
Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state. [2003 J.R. 29, 2005 J.R. 30, vote Nov. 2006
In Wolf, et. al. v. Walker, et. al.
, Case No. 14-cv-64-bbc, the United States District Court, Western District of Wisconsin declared that “art. XIII, § 13 of the Wisconsin Constitution violates plaintiffs' fundamental right to marry and their right to equal protection of laws under the Fourteenth Amendment to the United States Constitution." Affirmed. 766 F.3d 648
. U.S. Seventh Circuit Court of Appeals, Case No. 14-2526, issued September 4, 2014
The two propositions contained in the amendment creating this section plainly relate to the subject of marriage. The general purpose of the marriage amendment is to preserve the legal status of marriage as between only one man and one woman. Both propositions in the marriage amendment relate to and are connected with this purpose. Therefore, the marriage amendment does not violate the separate amendment rule of Article XII, Section 1. McConkey v. Van Hollen, 2010 WI 57
, 326 Wis. 2d 1
; 783 N.W.2d 855
Chapter 770, the domestic partnership law, is constitutional, based on the presumption of constitutionality, the plaintiffs' failure to meet the burden of proof, and the evidence reviewed. The plain language of the amendment prohibits only a status “identical or substantially similar to" marriage, and by implication it does not prohibit what is not identical or substantially similar thereto. There are important statutory distinctions in the way the state treats marriage and domestic partnerships and important differences in the lists of benefits and obligations that inhere in the two types of relationships. Appling v. Walker, 2014 WI 96
, 358 Wis. 2d 132
, 853 N.W.2d 888
Same-sex couples may exercise the fundamental right to marry in all states. The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the 14th amendment couples of the same-sex may not be deprived of that right and that liberty. Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2071
, 191 L. Ed. 2d 953