An anonymous tip that a person is carrying a gun, without more, is insufficient to justify a police officer's stop and frisk of a person. The tip must bear indicia of reliability. Reasonable suspicion requires that a tip be reliable in its assertion of criminal activity, not just in its tendency to to identify a person. Florida v. J.L. 529 U.S. 266, 146 L. Ed. 2d 254 (2000).
Stopping vehicles at highway checkpoints without any individualized suspicion to interdict illegal drugs was an unreasonable seizure under the 4th amendment because the primary purpose was to uncover evidence of ordinary criminal wrongdoing, unlike checkpoints to check for drunk driving or illegal immigrants. City of Indianapolis v. Edmond, 531 U.S. 32, 148 L. Ed. 2d 333 (2000).
The police acted reasonably when, with probable cause to believe that the defendant had hidden drugs in his home, prevented the man from entering the home for about 2 hours until a search warrant could be obtained. Illinois v. McArthur, 531 US 326, 148 LEd2d 838 (2001).
A state hospital could not test maternity patients for cocaine and then turn the results over to law enforcement authorities without patient consent. The interest of using the threat of criminal sanctions to deter pregnant women from using cocaine does not justify a departure from the rule that a nonconsensual search is unconstitutional if not authorized by a warrant. Ferguson v. City of Charleston, 525 US 67, 149 LEd 2d 205 (2001).
If an officer has probable cause to believe a person has committed even a very minor criminal offense that does not breach the peace, the officer may, without violating the 4th amendment, arrest the offender without the need to balance the circumstances involved in the particular situation. Atwater v. City of Lago Vista, 532 US 318, 149 L. Ed. 2d 549 (2001)
Obtaining, by sense enhancing technology like infrared imaging, information regarding the interior of a home that could otherwise not be obtained without physical intrusion into a constitutionally protected area is a search presumptively unreasonable without a warrant. Kyllo v. U.S. 533 U.S. 27, 150 L. Ed. 2d 94 (2001).
A warrantless search of a probationer's residence founded on reasonable suspicion of criminal activity and authorized as a condition of probation was reasonable. Such a search is not restricted to monitoring whether the probationer is complying with probation restrictions. U.S. v. Knights, 534 U.S. 112, 151 L. Ed. 2d 497 (2001).
Police officers may approach bus riders at random to ask questions and to request consent to search luggage without advising the passengers of their right to not cooperate. U.S. v. Drayton, ___ U.S. ___, 153 L. Ed. 2d 242 (2002).
A school district policy of requiring all participants in competitive extracurricular activities to submit to drug testing was a reasonable means of furthering the district's interest in preventing drug use among students and was not an unreasonable search. Board of Education of Independent School District. No. 92 of Pottawatomie County v. White, ___ U.S. ___, 153 L. Ed. 2d 735 (2002).
State v. Seibel: Wisconsin Police Now Need Only a Reasonable Suspicion to Search a Suspect's Blood Incident to an Arrest. Armstrong. 1993 WLR 563.
But What of Wisconsin's Exclusionary Rule? The Wisconsin Supreme Court Accepts Apparent Authority to Consent as Grounds for Warrantless Searches. Schmidt. 83 MLR 299.
I,12 Attainder; ex post facto; contracts. Section 12. No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed, and no conviction shall work corruption of blood or forfeiture of estate.
Section 45.37 (9), Stats. 1963, constituted a contract as to the property an applicant for admission to the Grand Army Home had to surrender, and to apply a later amendment would be unconstitutional. Estate of Nottingham, 46 Wis. 2d 580, 175 N.W.2d 640.
Although the obligation of contract is not an absolute right but one that may yield to the compelling interest of the public, the public purpose served by a law mandating rent reductions due to property tax relief is not so vital so as to permit such an impairment of contract. State ex rel. Bldg. Owners v. Adamany, 64 Wis. 2d 280, 219 N.W.2d 274.
Retroactive application of 57.06, 1987 stats. [now 304.06] as amended in 1973, increasing the period to be served by petitioners, state prison inmates, from 2 to 5 years before they are eligible for parole consideration, imposes an additional penalty and violates the prohibition against ex post facto legislation. State ex rel. Mueller v. Powers, 64 Wis. 2d 643, 221 N.W.2d 692.
The legislative preclusion against the State Medical Society's divesting itself of control of ch. 148, disability plans does not constitute any impairment of the Society's charter because: 1) The grant of ch. 148 powers is permissive and voluntarily exercised by the Society; 2) the ch. 148 grant is in the nature of a franchise rather than a contract and cannot be viewed as unalterable or it would constitute a delegation of inalienable legislative power; and 3) the constitutional interdiction against statutes impairing contracts does not prevent the state from exercising its police powers for the common good. State Medical Society v. Comm. of Insurance, 70 Wis. 2d 144, 233 N.W.2d 470.
Where a probation statute was amended after a crime was committed but before the accused pled guilty and was placed on probation, application of the amended statute to probation revocation proceedings offended ex post facto clause. State v. White, 97 Wis. 2d 517, 294 N.W.2d 36 (Ct. App. 1979).
A challenge to legislation must prove 1) the legislation impairs an existing contractual relationship, 2) the impairment is substantial and 3) if substantial, the impairment is not justified by the purpose of the legislation. Reserve Life Ins. Co. v. La Follette, 108 Wis. 2d 637, 323 N.W.2d 173 (Ct. App. 1982).
The ex post facto prohibition applies to judicial pronouncements as well as legislative acts. The question to be addressed is whether the new law criminalizes conduct that was innocent when committed. State v. Kurzawa, 180 Wis. 2d 502, 509 N.W.2d 712 (1993).
Legislation creating penalty enhancers resulting from convictions prior to the effective date does not run afoul of the ex post facto clause. State v. Schuman, 186 Wis. 2d 213, 520 N.W.2d 107 (Ct. App. 1994).
An ex post facto law is one that punishes as a crime an act previously committed, that 1) was innocent when done, 2) makes more burdensome the punishment for a crime, after its commission or 3) deprives one charged with a crime of any defense available at the time the act was committed. State v. Thiel, 188 Wis. 2d 695, 524 N.W.2d 641 (1994).
A violation of this section occurs when application of the new law: 1) criminalizes conduct that was innocent when committed; 2) increases the penalty for conduct after its commission; or 3) removes a defense that was available at the time the act was committed. Retroactive application of a new statute of limitations, enacted at a time when the old limitations period has not yet run, does not violate the ex post facto clause. State v. Haines, 2002 WI App 139, ___ Wis. 2d ___, 647 N.W.2d 311.
Constitutionality of rent control discussed. 62 Atty. Gen. 276.
I,13 Private property for public use. Section 13. The property of no person shall be taken for public use without just compensation therefor.
The dismissal of an appeal for lack of prosecution in a condemnation action does not violate the condemnee's right to just compensation. Taylor v. State Highway Comm. 45 Wis. 2d 490, 173 N.W.2d 707.
The total rental loss occasioned by the condemnation is compensable, and a limitation to one year's loss is invalid. Luber v. Milwaukee County, 47 Wis. 2d 271, 177 N.W.2d 380.
A prohibition against filling in wetlands pursuant to an ordinance adopted under ss. 59.971 and 144.26 [now 59.692 and 281.31] does not amount to a taking of property. Police powers vs. eminent domain discussed. Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761.
A special assessment against a railroad for a sanitary sewer laid along the railroad's right-of-way, admittedly of no immediate use or benefit to the railroad, does not constitute a violation of this section. Soo Line RR. Co v. Neenah, 64 Wis. 2d 665, 221 N.W.2d 907.
In order for the petitioner to succeed in the initial stages of an inverse condemnation proceeding, it must allege facts that, prima facie at least, show there has been either an occupation of its property under 32.10, or a taking, which must be compensated under the terms of the Wisconsin Constitution. Howell Plaza, Inc. v. State Highway Comm. 66 Wis. 2d 720, 226 N.W.2d 185.
The owners of private wells ordered by the department of natural resources to seal them because of bacteriological danger are not entitled to compensation, because such orders were a proper exercise of the state's police power to prevent a public harm, for which compensation is not required. Village of Sussex v. Dept. of Natural Resources, 68 Wis. 2d 187, 228 N.W.2d 173.
There must be a "taking" of property to justify compensation. DeBruin v. Green County, 72 Wis. 2d 464, 241 N.W.2d 167.
Condemnation powers are discussed. Falkner v. Northern States Power Co. 75 Wis. 2d 116, 248 N.W.2d 885.
Ordering a utility to place its power lines under ground in order to expand an airport constituted a taking because the public benefited from the enlarged airport. Public Service Corp. v. Marathon County, 75 Wis. 2d 442, 249 N.W.2d 543.
For inverse condemnation purposes, a taking can occur absent a physical invasion only where there is a legally imposed restriction upon the property's use. Howell Plaza, Inc. v. State Highway Comm. 92 Wis. 2d 74, 284 N.W.2d 887 (1979).
The doctrine of sovereign immunity cannot bar an action for just compensation based on the taking of private property for public use even though legislature has failed to establish specific provisions for recovery of just compensation. Zinn v. State, 112 Wis. 2d 417, 334 N.W.2d 67 (1983).
Zoning classifications may unconstitutionally deprive property owners of due process of law. State ex rel. Nagawicka Is. Corp. v. Delafield, 117 Wis. 2d 23, 343 N.W.2d 816 (Ct. App. 1983).
Ordering a riparian owner to excavate and maintain a ditch to regulate a lake level was an unconstitutional taking of property. Otte v. DNR, 142 Wis. 2d 222, 418 N.W.2d 16 (Ct. App. 1987).
The operation of this section is discussed. W.H. Pugh Coal Co. 157 Wis. 2d 620, 460 N.W.2d 787 (Ct. App. 1990).
A taking by government restriction occurs only if the restriction deprives the owner of all or practically all use. Busse v. Dane County Regional Planning Comm. 181 Wis. 2d 527, 510 N.W.2d 136 (Ct. App. 1993).
A taking claim is not ripe for judicial review until the government agency charged with implementing applicable regulations has made a final decision applying the regulations to the property at issue. Taking claims based on equal protection or due process grounds must meet the ripeness requirement. Streff v. Town of Delafield, 190 Wis. 2d 348, 526 N.W.2d 822 (Ct. App. 1994).
Damage to property is not compensated as a taking. For flooding to be a taking it must constitute a permanent physical occupation of property. Menick v. City of Menasha, 200 Wis. 2d 737, 547 N.W.2d 778 (Ct. App. 1996).
A constructive taking occurs when government regulation renders a property useless for all practical purposes. Taking jurisprudence does not allow dividing the property into segments and determining whether rights in a particular segment have been abrogated. Zealy v. City of Waukesha, 201 Wis. 2d 365, 548 N.W.2d 528 (1996).
Section 32.10 does not govern inverse condemnation proceedings seeking just compensation for a temporary taking of land for public use. Such takings claims are based directly on Article I, section 13, of the constitution. Anderson v. Village of Little Chute, 201 Wis. 2d 467, 549 N.W.2d 561 (Ct. App. 1996).
The mandate of just compensation cannot be limited by statute or barred by sovereign immunity. Just compensation is not measured by the economic benefit to the state resulting from the taking, but by the property owner's loss. Just compensation is for property presently taken and necessarily means the property's present value presently paid, not its present value to be paid at some future time without interest. Retired Teachers Association v. Employee Trust Funds Board, 207 Wis. 2d 1, 558 N.W.2d 83 (1997).
When a state's constitution and statutes are silent as to the distribution of excess proceeds received when a tax lien is foreclosed on and the property is subsequently sold by the municipality, the municipality may constitutionally retain the proceeds as long as there has been notice sufficient to meet due process requirements. Due process does not require that notices state that should the tax lien be foreclosed and the property sold the municipality may retain all the proceeds. Ritter v. Ross, 207 Wis. 2d 477, 558 N.W.2d 909 (Ct. App. 1996).
The reversal of an agency decision by a court does not convert an action that might have otherwise been actionable as a taking into one that is not. Once there has been sufficient deprivation of use of property, there has been a taking even though the property owner regains full use of the land through rescission of the restriction. Eberle v. Dane County Board of Adjustment, 227 Wis. 2d 609, 595 N.W.2d 730 (1999).
When a regulatory taking claim is made, the plaintiff must prove that: (1) a government restriction or regulation is excessive and therefore constitutes a taking; and (2) any proffered compensation is unjust. Eberle v. Dane County Board of Adjustment, 227 Wis. 2d 609, 595 N.W.2d 730 (1999).
A condemnation of property for a highway that was never built because an alternative route was found constituted a temporary taking entitling the owner to compensation, but not to attorney fees as there is no authority to award fees for an action brought directly under this section. Stelpflug v. Town of Waukesha, 2000 WI 81, 236 Wis. 2d 275, 612 N.W.2d 700.
A claimant who asserted ownership of condemned land, compensation for which was awarded to another as owner with the claimant having had full notice of the proceedings, could not institute an inverse condemnation action because the municipality had exercised its power of condemnation. Koskey v. Town of Bergen, 2000 WI App 140, 237 Wis. 2d 284, 614 N.W.2d 845.
A property owner who acquires property knowing that permits are required for development cannot presume that the permits will be granted and assumes the risk of loss in the event of denial. R.W. Docks & Slips v. State, 2000 WI App 183, 238 Wis. 2d 182, 617 N.W.2d 519.
A New York law that a landlord must permit a cable television company to install cable facilities upon property was a compensable taking. Loretto v. Teleprompter Manhattan CATV Corp. 458 U.S. 419 (1982).
State land use regulation preventing beachfront development that rendered an owner's land valueless constituted a taking. When a regulation foreclosing all productive economic use of land goes beyond what "relevant background principals", such as nuisance law, would dictate, compensation must be paid. Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 120 L. Ed. 2d 798 (1992).
Seizure of private property in a forfeiture action under a warrant issued at an ex parte hearing to establish probable cause that a crime subjecting the property to forfeiture was committed, while possibly satisfying the prohibition against unreasonable searches and seizures, was a taking of property without due process. United States v. Good Real Estate, 510 U.S. 43, 126 L. Ed. 2d 490 (1993).
A municipality requiring the dedication of private property for some future public use as a condition of obtaining a building permit must meet a "rough proportionality" test showing it made some individualized determination that the dedication is related in nature and extent to the proposed development. Dolan v. City of Tigard, 512 U.S. 374, 129 L. Ed. 2d 304 (1994).
A taking claim is not barred by the mere fact that title to the property was acquired after the effective date of a state-imposed land use restriction. Palazzolo v. Rhode Island, 533 U.S. 606, 150 L. Ed. 2d 592 (2001).
A temporary moratorium on development imposed during the development of a comprehensive plan does not constitute a per se taking. Compensation is required when a regulation denies an owner all economically beneficial use of land. An interest in property consists of the metes and bounds of the property and the term of years that describes the owner's interest. Both dimensions must be considered in determining whether a taking occurred. A fee simple interest cannot be rendered valueless by a temporary prohibition on use. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 152 L. Ed. 2d. 517 (2002).
The backing of water so as to overflow the lands of an individual, or any other superinduced addition of water, earth, sand, or other material, if done under statutes authorizing it for the public benefit, is a taking within the meaning of Art. I, sec. 13. Pumpelly v. Green Bay and Miss. Canal Co. 13 Wall. (U.S.) 166.
Compensation for lost rents. 1971 WLR 657.
I,14 Feudal tenures; leases; alienation. Section 14. All lands within the state are declared to be allodial, and feudal tenures are prohibited. Leases and grants of agricultural land for a longer term than fifteen years in which rent or service of any kind shall be reserved, and all fines and like restraints upon alienation reserved in any grant of land, hereafter made, are declared to be void.
I,15 Equal property rights for aliens and citizens. Section 15. No distinction shall ever be made by law between resident aliens and citizens, in reference to the possession, enjoyment or descent of property.
I,16 Imprisonment for debt. Section 16. No person shall be imprisoned for debt arising out of or founded on a contract, expressed or implied.
Section 943.20 (1) (e), which criminalizes the failure to return rented personal property, does not unconstitutionally imprison one for debt. State v. Roth, 115 Wis. 2d 163, 339 N.W.2d 807 (Ct. App. 1983).
This section only prohibits imprisonment for debt arising out of or founded upon a contract. A court imposed support order is not a debt on a contract and prosecution and incarceration for criminal nonsupport does not violate this section. State v. Lenz, 230 Wis. 2d 529, 602 N.W.2d 172 (Ct. App. 1999).
I,17 Exemption of property of debtors. Section 17. The privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale for the payment of any debt or liability hereafter contracted.
I,18 Freedom of worship; liberty of conscience; state religion; public funds. Section 18. [As amended Nov. 1982] 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 treasury for the benefit of religious societies, or religious or theological seminaries. [1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982]
A statute authorizing a contract requiring the state to pay an amount to a Catholic university for the education of dental students violated the establishment clause by permitting the use of funds paid by the state to be used in support of the operating costs of the university generally and violated the free exercise clause by requiring regulations as to management and hiring by the university that were not restricted to the dental school. Warren v. Nusbaum, 55 Wis. 2d 316, 198 N.W.2d 650.
It is outside the province of a civil court to review the merits of a determination of a duly authorized ecclesiastical tribunal that has adhered to prescribed canonical procedure and that results in terminating a clergyman's relationship with his church. Olston v. Hallock, 55 Wis. 2d 687, 201 N.W.2d 35.
This section is not violated by the released time provisions of 118.155, where the statute accommodates rather than restricts the right of students to religious instruction, does not compel any student to participate in religious training, and does not involve the use or expenditure of public funds especially where the electorate approved an amendment to art. X, sec. 3, specifically authorizing enactment of a released time statute. State ex rel. Holt v. Thompson, 66 Wis. 2d 659, 225 N.W.2d 678.
For purposes of 121.51 (4), 1981 stats. [now 121.51 (1)] and in the absence of fraud or collusion, where a religious school demonstrates by its corporate charter and bylaws that it is independent of, and unaffiliated with, a religious denomination, further inquiry by the state would violate Art. I, sec. 18. Holy Trinity Community School v. Kahl, 82 Wis. 2d 139, 262 N.W.2d 210.
Refusal on religious grounds to send children to school was held to be a personal, philosophical choice by parents, rather than a protected religious expression. State v. Kasuboski, 87 Wis. 2d 407, 275 N.W.2d 101 (Ct. App. 1978).
The primary effect of health facilities authority under ch. 231, which fiances improvements for private, nonprofit health facilities, does not advance religion, nor does the chapter foster excessive entanglement between church and state. State ex rel. Wis. Health Fac. Auth. v. Lindner, 91 Wis. 2d 145, 280 N.W.2d 773 (1979).
Meals served by a religious order, in carrying out their religious work, were not, under the circumstances, subject to Wisconsin sales tax for that portion of charges made to guests for lodging, food, and use of order's facilities. Kollasch v. Adamany, 104 Wis. 2d 552, 313 N.W.2d 47 (1981).
Tee state Equal Rights Division did not violate the free exercise clause by investigating a discrimination complaint brought by an employee of a religious school. Sacred Heart School Board, 157 Wis. 2d 638, 460 N.W.2d 430 (Ct. App 1990).
The test to determine whether the governmental aid offends the establishment clause is discussed. Freedom from Religion Foundation v. Thompson, 164 Wis. 2d 736, 476 N.W.2d 318 (Ct. App. 1991).
The free exercise clause does not excuse a person from compliance with a valid law. A visitation order intended to prevent a noncustodial parent from imposing his religion on his children was a reasonable protection of the custodial parent's statutory right to choose the children's religion. Lange v. Lange, 175 Wis. 2d 373, N.W.2d (Ct. App. 1993).
In setting a sentence, a court may consider a defendant's religious beliefs and practices only if a reliable nexus exists between the defendant's criminal conduct and those beliefs and practices. State v. Fuerst, 181 Wis. 2d 903, 512 N.W.2d 243 (Ct. App. 1994).
A nativity scene surrounded by Christmas trees and accompanied by a sign proclaiming a "salute to liberty" did not violate the 1st amendment's establishment and free exercise clauses or Art. I, s.18. King v. Village of Waunakee, 185 Wis. 2d 25, 517 N.W.2d 671 (1994).
Probation conditions may impinge on religious rights as long as the conditions are not overly broad and are reasonably related to rehabilitation. Von Arx v. Schwarz, 185 Wis. 2d 645, 517 N.W.2d 540 (Ct. App. 1994).
The courts are prevented from determining what makes one competent to serve as a priest, and therefore the courts cannot decide a claim of negligent hiring or retention by a church. Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 303, 533 N.W.2d 780 (1995). See also L.L.N. v. Clauder, 209 Wis. 2d 674, 563 N.W.2d 434 (1997).
The state is prevented from enforcing discrimination laws against religious associations when the employment at issue serves a ministerial or ecclesiastical function. While it must be given considerable weight, a religious association's designation of a position as ministerial or ecclesiastical does not control its status. Jocz v. LIRC, 196 Wis. 2d 273, 538 N.W.2d 588 (Ct. App. 1995).
Freedom of conscience as guaranteed by the Wisconsin constitution is not constrained by the boundaries of protection set by the U. S. Supreme Court for the federal provision. As applied to Amish, requiring slow moving vehicle signs on buggies unconstitutionally infringed on religious liberties. Requiring Amish buggies to carry slow moving vehicle signs furthered a compelling state interest, but was not shown to be the least restrictive means of accomplishing that interest. State v. Miller, 202 N.W.2d 56, 549 N.W.2d 235 (1996).
The role courts may play in church property disputes is limited, but a court may adopt one of several approaches so long as the court does not entangle itself in doctrinal affairs. Church doctrine may be examined from a secular perspective, but courts may not interpret church law, policies, or practice. United Methodist Church, Inc. v. Culver, 2000 WI App 132, 237 Wis. 2d 343, 614 N.W.2d 523.
While this article is more specific and terser than the clauses of the 1st amendment, it carries the same import. Both provisions are intended and operate to serve the purposes of prohibiting the establishment of religion and protecting the free exercise of religion. Jackson v. Benson, 218 Wis. 2d 835, 578 N.W.2d 602 (1998).
To succeed in a constitutional challenge to a local fire prevention code, the complaining church had the initial burden of proving that there was a sincerely held religious belief that would be burdened by the application of the code. The church failed to carry this burden because it did not present evidence of any basic tenet, principle, or dogma supporting representations that an exposed sprinkler system would desecrate the worship space. Peace Lutheran Church and Academy v. Village of Sussex, 2001 WI App 139, 246 Wis. 2d 502, 631 N.W.2d 229.
The constitutionality of state tuition grants to parents of resident pupils enrolled in private elementary or high schools discussed. 58 Atty. Gen. 163.
Guidelines to possibly avoid constitutional objection to CESA service contracts with private schools discussed. 62 Atty. Gen. 75.
Leasing of university buildings to a religious congregation during nonschool days and hours on a temporary basis while the congregation's existing facility is being renovated and leasing convention space to a church conference would not violate separation of church and state provisions of the First amendment to U.S. Const. and sec. 18. 63 Atty. Gen. 374.
The department of public instruction may, if so authorized under 16.54, implement the school lunch program and special food service plan for children in secular and sectarian private schools and child-care institutions without violating the U.S. or Wisconsin Constitutions. 63 Atty. Gen. 473.
Funds received under Title I of the Elementary and Secondary Education Act may not be used to pay salaries of public school teachers teaching in church affiliated private schools. See 64 Atty. Gen. 139. 64 Atty. Gen. 136.
