The state and federal constitutions provide identical procedural due process and equal protection safeguards. County of Kenosha v. C. & S. Management, Inc. 223 Wis. 2d 373, 588 N.W.2d 236 (1999), 97-0642.
In a procedural due process claim, it is not the deprivation of property or liberty that is unconstitutional; it is the deprivation without due process of law. Arneson v. Jezwinski, 225 Wis. 2d 371, 592 N.W.2d 606 (1999), 97-1867.
Substantive due process guarantees protect citizens against arbitrary action of government. To violate substantive due process guarantees, a decision must involve more than simple errors in law or an improper exercise of discretion; it must shock the conscience. Eternalist Foundation, Inc. v. City of Platteville, 225 Wis. 2d 759, 593 N.W.2d 84 (Ct. App. 1999), 98-1944.
A criminal proceeding may be conclusive against a 3rd party only if the 3rd party and criminal defendant have sufficient identity of interest so that in the prior proceeding the 3rd party had a full opportunity to fairly adjudicate the issues leading to the conviction. If not, the 3rd party's due process rights would be violated by the application of issue preclusion. Paige K.B. v. Steven G.B. 226 Wis. 2d 210, 594 N.W.2d 370 (1999), 97-0873.
A deprivation of the due process right of a fair warning can occur, not only from vague statutory language, but also from unforeseeable and retroactive interpretation of that statutory language. Elections Board v. Wisconsin Manufacturers & Commerce, 227 Wis. 2d 650, 597 N.W.2d 721 (1999), 98-0596.
The retroactive application of a substantive statute must meet the test of due process determined by balancing the public interest served by retroactive application against the private interests that are overturned. Neiman v. American National Property & Casualty Co. 2000 WI 83, 236 Wis. 2d 411, 613 N.W.2d 160, 99-2554.
The imposition of liability without fault, even when the statute imposes punitive sanctions, does not in itself violate due process. Statutes that are within the police power of the state may impose even criminal liability on a person whose acts violate the statute, even if the person did not intend to do so. Gross v. Woodman's Food Market, Inc. 2002 WI App 295, 259 Wis. 2d 181, 655 N.W.2d 718, 01-1746.
A parent who has a substantial relationship with his or her child has a fundamental liberty interest in parenting the child. It is fundamentally unfair to terminate parental rights based solely on a parent's status as a victim of incest. Monroe County DHS v. Kelli B. 2004 WI 48, 03-0060.
The due process clause of the 14th amendment includes the fundamental right of parents to make decisions concerning the care, custody, and control of their children, including the right to direct the upbringing and education of children under their control, but that right is neither absolute nor unqualified. Parents do not have a fundamental right direct how a public school teaches their child or to dictate the curriculum at the public school to which they have chosen to send their child. Larson v. Burmaster, 2006 WI App 142, 295 Wis. 2d 333, 720 N.W.2d 134, 05-1433.
A prisoner has a liberty interest in avoiding forced nutrition and hydration, but department of corrections may infringe on the prisoner's liberty interest by forcing him or her to ingest food and fluids against his or her will. A court may enter a temporary ex parte order for involuntarily feeding and hydration, if exigent circumstances require immediate involuntary treatment in order to avoid serious harm to or the death of an inmate. Continuation of the order requires the right to an evidentiary hearing when DOC's allegations are disputed, the opportunity to meaningfully participate in the evidentiary hearing, and that the order cannot be of indefinite or permanent duration without periodic review. Department of Corrections v. Saenz, 2007 WI App 25, 299 Wis. 2d 486, 728 N.W.2d 765, 05-2750.
Prisoners' due process rights are discussed. Wolff v. McDonnell, 418 U.S. 539.
Public high school students facing temporary suspension have property and liberty interests protected by due process. Goss v. Lopez, 419 U.S. 565.
Garnishment of corporate bank accounts must comply with due process protections of Fuentes and Sniadach. North Georgia Finishing, Inc. v. Di-Chem, Inc. 419 U.S. 601.
The Wisconsin medical examining board does not deny due process by both investigating and adjudicating charge of professional misconduct. Withrow v. Larkin, 421 U.S. 35.
States may deny benefits to those who fail to prove they did not quit a job in order to obtain benefits. Lavine v. Milne, 424 U.S. 577.
Due process does not disqualify an agency as a decision maker merely because of familiarity with the facts of a case. Hortonville Dist. v. Hortonville Ed. Asso. 426 U.S. 482.
Dismissal from medical school for academic deficiencies without a hearing did not violate the due process clause. Board of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78 (1978).
Utility customers' due process rights were violated when the utility shut off service for nonpayment without advising the customers of available administrative procedures. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978).
A father's acquiescence in his daughter's desire to live with her mother in California did not confer jurisdiction over father in California courts. Kulko v. California Superior Court, 436 U.S. 84 (1978).
The due process clause was not violated when the IRS monitored a conversation with the defendant in violation of IRS rules. United States v. Caceres, 440 U.S. 741 (1979).
A state may not exercise quasi in rem jurisdiction over a defendant having no forum contacts by attacking the contractual obligation of the defendant's insurer licensed in the state. Rush v. Savchuk, 444 U.S. 320 (1980).
Involuntary transfer of a prisoner to a mental hospital implicated protected liberty interests. Vitek v. Jones, 445 U.S. 480 (1980).
The termination of appointed assistant public defenders, who were neither policymakers nor confidential employees, solely on grounds of political affiliation was a denial of 1st and 14th amendment rights. Branti v. Finkel, 445 U.S. 507 (1980).
Segregation confinement of a prisoner without prior hearing may violate due process if postponement of procedural protections is not justified by apprehended emergency conditions. Hughes v. Rowe, 449 U.S. 5 (1980).
When an accident involving only Wisconsin residents occurred in Wisconsin, the fact that the decedent had been employed in Minnesota conferred jurisdiction on Minnesota courts and Minnesota insurance law was applicable. Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981).
The national democratic party has a protected right of political association and may not be compelled to seat delegates chosen in an open primary in violation of the party's rules. Democratic Party of U.S. v. Wisconsin, 450 U.S. 107 (1981).
A statute that required a putative father in a paternity suit to pay for blood tests denied due process to indigent putative fathers. Little v. Streater, 452 U.S. 1 (1981).
Due process does not require appointment of counsel for indigent parents in every parental status termination proceeding. Lassiter v. Dept. of Social Services, 452 U.S. 18 (1981).
A life prisoner had no due process right to a statement of reasons why the board did not commute his life sentence. Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 (1981).
An ordinance regulating the sale of drug paraphernalia was constitutional. Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489 (1982).
Revocation of probation for failure to pay a fine, without a determination that the probationer had not made a bona fide effort to pay or that alternate forms of punishment did not exist, denied due process and equal protection. Bearden v. Georgia, 461 U.S. 660 (1983).
Notice by publication did not satisfy due process requirements in a tax sale. Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983).
A state's policy of preserving county boundaries in a reapportionment plan justified a population deviation averaging 13%. Brown v. Thomson, 462 U.S. 835 (1983).
A minority set-aside program violated due process. Richmond v. Croson Co. 488 U.S. 469, 102 L. Ed. 2d 854 (1989).
Abortion restrictions complied with constitutional protections. Webster v. Reproductive Health Serv. 492 U.S. 490, 106 L. Ed. 2d 410 (1989).
Assuming that a competent person has a constitutional right to refuse treatment, a state may require clear and convincing evidence that an incompetent patient desired withdrawal of treatment. Cruzan v. Director, Mo. Health Dept. 497 U.S. 261, 111 L. Ed. 2d 224 (1990).
Substantive due process is not violated by a police officer who causes death through deliberate or reckless indifference to life in a high speed chase aimed at apprehending a suspect. Only a purpose to cause harm unrelated to the legitimate object of arrest satisfies the element of arbitrary conduct shocking to the conscience necessary for a due process violation. County of Sacramento v. Lewis, 523 U.S. 833, 140 L. Ed. 2d 1043 (1998).
In lieu of exclusive reliance on a judge's personal inquiry into his or her actual bias, or on appellate review of the judge's determination respecting actual bias, the due process clause has been implemented by objective standards that do not require proof of actual bias. In defining these standards the U.S. Supreme Court has asked whether, under a realistic appraisal of psychological tendencies and human weakness, the interest poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented. Caperton v. A. T. Massey Coal Co. 556 U.S. ___, 175 L. Ed. 2d 753, 129 S. Ct. 2252 (2009).
There is a serious risk of actual bias, based on objective and reasonable perceptions, when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on a case by raising funds or directing the judge's election campaign while the case was pending or imminent. The inquiry centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect the contribution had on the outcome of the election. Whether campaign contributions were a necessary and sufficient cause of a judge's victory is not the proper inquiry. Due process requires an objective inquiry into whether the contributor's influence on the election under all the circumstances would offer a possible temptation to the average judge to lead the judge not to hold the balance "nice, clear, and true." Caperton v. A. T. Massey Coal Co. 556 U.S. ___, 175 L. Ed. 2d 753, 129 S. Ct. 2252 (2009).
It is not a violation of the due process clause to tow an illegally parked car without first giving the owner notice and opportunity to be heard regarding the lawfulness of the towing. Sutton v. City of Milwaukee, 672 F.2d 644 (1982).
A village board's denial of an application for a liquor license did not deprive the applicant of either liberty or property. Scott v. Village of Kewaskum, 786 F.2d 338 (1986).
A teacher's alleged de facto tenure is not a protected property interest. Liberty interests are discussed. Stevens v. Jt. School Dist. No. 1, Tony, Etc. 429 F. Supp. 477.
A sheriff violated a tenant's protectible property interest by executing a stale writ of restitution. Wolf-Lillie v. Kenosha Cty. Sheriff, 504 F. Supp. 1 (1980).
One cannot have a constitutionally protected interest solely in a state law procedure; a separate property interest must also be present. Molgaard v. Town of Caledonia, 527 F. Supp. 1073 (1981).
Demon rum and the dirty dance: reconsidering government regulation of live sex entertainment after California v. La Rue. 1975 WLR 161.
Reasonable corporal punishment by school official over parental objection is constitutional. 1976 WLR 689.
Procedural due process in public schools: The "thicket" of Goss v. Lopez. 1976 WLR 934.
Impartial decisionmaker—authority of school board to dismiss striking teachers. 1977 WLR 521.
Property interest—government employment—state law defines limitation of entitlement. 1977 WLR 575.
MISCELLANEOUS
An adult bookstore has no right to protect the privacy rights of its customers in a public, commercial establishment. City News & Novelty v. City of Waukesha, 170 Wis. 2d 14, 487 N.W.2d 316 (Ct. App. 1992).
A narrowly drawn anti-cruising ordinance did not violate the right to assemble or travel. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 507 N.W.2d 163 (Ct. App. 1993).
The right to intrastate travel, including the right to move about one's neighborhood in an automobile, is fundamental, but infringements on the right are not subject to strict scrutiny. Cruising ordinances, reasonable in time, place and manner, do not violate this right. Brandmiller v. Arreola, 199 Wis. 2d 528, 544 N.W.2d 849 (1996), 93-2842.
A father, who intentionally refused to pay child support could, as a condition of probation, be required to avoid having another child, unless he showed that he could support that child and his current children. In light of the defendant's ongoing victimization of his children and record manifesting his disregard for the law, this condition was not overly broad and was reasonably related to the defendant's rehabilitation. State v. Oakley, 2001 WI 103, 245 Wis. 2d 447, 629 N.W.2d 200, 99-3328.
Banishment from a particular place is not a per se violation of the right to travel. There is no exact formula for determining whether a geographic restriction is narrowly tailored. Each case must be analyzed on its own facts, circumstances, and total atmosphere to determine whether the geographic restriction is narrowly drawn. Predick v. O'Connor, 2003 WI App 46, 260 Wis. 2d 323, 660 N.W.2d 1, 02-0503.
In order for a putative biological father to have the necessary foundation for a constitutionally protected liberty interest in his putative paternity, he would have to have taken affirmative steps to assume his parental responsibilities for the child. Randy A. J. v. Norma I. J. 2004 WI 41, 270 Wis. 2d 384, 676 N.W.2d 452, 02-0469.
Putative father's right to custody of his child. 1971 WLR 1262.
I,2 Slavery prohibited. Section 2. There shall be neither slavery, nor involuntary servitude in this state, otherwise than for the punishment of crime, whereof the party shall have been duly convicted.
I,3 Free speech; libel. Section 3. Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libel, the truth may be given in evidence, and if it shall appear to the jury that the matter charged as libelous be true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
FREE SPEECH
A city can validly prohibit picketing private homes when the subject of the picketing has no relationship to any activity carried on there. Wauwatosa v. King, 49 Wis. 2d 398, 182 N.W.2d 530.
A journalist has a constitutional right to the privilege not to disclose sources of information received in a confidential relationship, but when such confidence is in conflict with the public's overriding need to know, it must yield to the interest of justice. The state need not affirmatively demonstrate proof of compelling need or lack of an alternative method of obtaining the information sought when the crimes involved and the prevention of repetition of those crimes constitute a compelling need. State v. Knops, 49 Wis. 2d 647, 183 N.W.2d 93.
Only that portion of an obscenity ordinance defining obscenity in Roth-Memoirs terms is unconstitutional, and the remainder is a viable, effective ordinance when supplemented by the supreme court's Chobot obscenity definition "community standards" definition. Madison v. Nickel, 66 Wis. 2d 71, 223 N.W.2d 865.
The majority representative's exclusive right to represent all employees in a bargaining unit precludes speech by others in the form of bargaining or negotiating for a labor agreement, but the infringement on speech is justified by the necessity to avoid the dangers attendant upon relative chaos in labor-management relations. Madison Joint School District No. 8 v. WERC, 69 Wis. 2d 200, 231 N.W.2d 206.
Prohibiting the solicitation of prostitutes does not violate the right of free speech. Shillcutt v. State, 74 Wis. 2d 642, 247 N.W.2d 694.
When a radio talk show announcer was fired for allowing talk show guests to slander minorities, the announcer's right of free speech was not infringed. Augustine v. Anti-Defamation Lg. B'nai B'rith, 75 Wis. 2d 207, 249 N.W.2d 547.
When the record did not indicate that a tenant union provided inadequate, unethical, or complex legal advice to tenants, the tenant union's information service was protected by free speech guarantees. Hopper v. Madison, 79 Wis. 2d 120, 256 N.W.2d 139.
The public's right to be aware of all facts surrounding an issue does not interfere with the right of a newspaper to reject advertising. Wis. Assoc. of Nursing Homes v. Journal Co. 92 Wis. 2d 709, 285 N.W.2d 891 (Ct. App. 1979).
Procedures to determine whether a journalist may properly invoke privilege to prevent disclosure of confidential sources set. Green Bay Newspaper v. Circuit Court, 113 Wis. 2d 411, 335 N.W.2d 367 (1983).
The right of free speech applies against state action, not private action. Jacobs v. Major, 139 Wis. 2d 492, 407 N.W.2d 832 (1987).
News gatherers have no constitutional right of access to disaster scenes beyond that accorded the general public. City of Oak Creek v. King, 148 Wis. 2d 532, 436 N.W.2d 285 (1989).
Commercial speech is protected by the 1st amendment. The government must show a restriction directly advances a substantial interest for it to be constitutional. City of Milwaukee v. Blondis, 157 Wis. 2d 730, 460 N.W.2d 815 (Ct. App. 1990).
A sentence based on an activity protected by the 1st amendment is constitutionally invalid, but when a sufficient link to criminal activity is shown, the activity is no longer protected. State v. J.E.B. 161 Wis. 2d 655, 469 N.W.2d 192 (Ct. App. 1991).
Although music is accorded a presumption of being protected speech, an ordinance prohibiting all unreasonable noise was not an unconstitutionally vague encroachment on free speech. City of Madison v. Bauman, 162 Wis. 2d 660, 470 N.W.2d 296 (1991).
An employee's free speech rights were not violated when the employer's need for confidentiality and discipline clearly outweighed the employee's interest in disclosing confidential information. Barnhill v. Board of Regents, 166 Wis. 2d 395, 479 N.W.2d 917 (1992).
Prison inmates 1st amendment rights are subject to limitation and regulation. Interception and withholding of inter-inmate correspondence was reasonable. Yoder v. Palmeri, 177 Wis. 2d 756, 502 N.W.2d 903 (Ct. App. 1993).
Whether a restriction on nude dancing is overbroad depends on whether the ordinance is targeted at curbing only harmful secondary effects of exotic clubs. Fond du Lac County v. Mentzel, 195 Wis. 2d 313, 536 N.W.2d 160 (Ct. App. 1995), 94-1924.
The state's power to ban the sale of alcoholic beverages under the 21st amendment includes the lesser power to ban nude dancing on premises where alcohol is served. Schultz v. City of Cumberland, 195 Wis. 2d 554, 536 N.W.2d 192 (Ct. App. 1995), 94-3106.
The restriction of prison inmates free speech rights are discussed. Lomax v. Fiedler, 204 Wis. 2d 196, 554 N.W.2d 841 (Ct. App. 1996), 95-2304.
A zoning ordinance that did not set aside any area where an adult bookstore would be allowed was impermissible. Town of Wayne v. Bishop, 210 Wis. 2d 218, 565 N.W.2d 201 (Ct. App. 1997), 95-2387.
A public nudity ordinance will meet a challenge that it is facially overbroad if it is drafted in a manner that addresses the secondary effects of adult entertainment without suffocating protected expression in a real and substantial manner. Lounge Management v. Town of Trenton, 219 Wis. 2d 13, 580 N.W.2d 156 (1998), 96-1853.
Obscenity is, and has been, an abuse of the right to speak freely on all subjects under the state constitution. The breadth of protection offered by the Wisconsin constitution in the context of obscenity is no greater than that afforded by the 1st amendment. County of Kenosha v. C. & S. Management, Inc. 223 Wis. 2d 373, 588 N.W.2d 236 (1999), 97-0642.
It may be appropriate to consider context in determining whether a communication "expressly advocates" the election, defeat, recall, or retention of a clearly identified candidate or a particular vote at a referendum, within the meaning of s. 11.01 (16) (a) 1. Elections Board v. Wisconsin Manufacturers & Commerce, 227 Wis. 2d 650, 597 N.W.2d 721 (1999), 98-0596.
When an ordinance regulates 1st amendment activities, the government normally has the burden of defending the regulation beyond a reasonable doubt, but when prior restraints are concerned and the government action at issue is the review of an applicant's qualifications for a business license, the city does not bear the burden of going to court to effect the denial of a license, nor does it bear the burden of proof once in court. City News & Novelty, Inc. v. City of Waukesha, 231 Wis. 2d 93, 604 N.W.2d 870 (Ct. App. 1999), 97-1504.
Unfiled pretrial materials in a civil action between private parties are not public records and neither the public nor the press has either a common law or constitutional right of access to those materials. State ex rel. Mitsubishi v. Milwaukee County, 2000 WI 16, 233 Wis. 2d 1, 605 N.W.2d 868, 99-2810.
A town ordinance prohibiting nudity on premises operating under a retail Class B liquor license was constitutional under Erie, 146 L. Ed. 2d. 265. Urmanski v. Town of Bradley, 2000 WI App 141, 237 Wis. 2d 545, 613 N.W.2d 905, 99-2330.
Only a "true threat" is punishable under statutes criminalizing threats. A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, 99-1924.
Application of the disorderly conduct statute to speech alone is permissible under appropriate circumstances. When speech is not an essential part of any exposition of ideas, when it is utterly devoid of social value, and when it can cause or provoke a disturbance, the disorderly conduct statute can be applicable. State v. A.S., 2001 WI 48, 243 Wis. 2d 173, 626 N.W.2d 712, 99-2317.
Purely written speech, even if it fails to cause an actual disturbance, can constitute disorderly conduct, but the state has the burden to prove that the speech is constitutionally unprotected "abusive" conduct. "Abusive" conduct is conduct that is injurious, improper, hurtful, offensive, or reproachful. True threats clearly fall within the scope of this definition. State v. Douglas D. 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, 99-1767.
