Wisconsin Legislature: 000002

Note: An index to the Wisconsin Constitution follows. The general index contains references to the Wisconsin Constitution under the head “Constitution, Wisconsin."

PREAMBLE

We, the people of Wisconsin, grateful to Almighty God for our freedom, in order to secure its blessings, form a more perfect government, insure domestic tranquility and promote the general welfare, do establish this constitution.

The Making of the Wisconsin Constitution. Rainey. Wis. Law. Sept. 1992.

Interpreting the Wisconsin Constitution. Suhr. 97 MLR 93 (No. 1 2013)

I ARTICLE I.

declaration of rights

I,1 Equality; inherent rights. Section 1. [As amended Nov. 1982 and April 1986] 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. [1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982; 1983 J.R. 40, 1985 J.R. 21, vote April 1986]

EQUAL PROTECTION

The fact that there is no mandatory release date for persons convicted of 1st degree murder as there is for other crimes does not amount to denial of equal protection. Bies v. State, 53 Wis. 2d 322, 193 N.W.2d 46 (1972).

Legislative classifications violate equal protection only if they are irrational or arbitrary. Any reasonable basis for the classification validates the statute. There is a five point test to determine reasonableness. Omernik v. State, 64 Wis. 2d 6, 218 N.W.2d 734 (1974).

There is a meaningful distinction between governmental employees and nongovernmental employees. The statutory strike ban imposed on public employees is based upon a valid classification and the legislation creating it is not unconstitutional as a denial of equal protection. Hortonville Education Association v. Joint School District No. 1, 66 Wis. 2d 469, 225 N.W.2d 658 (1975). Reversed on other grounds, Hortonville Joint School Dist. No. 1 v. Hortonville Education Association, 426 U.S. 482, 96 S. Ct. 2308, 49 L. Ed. 2d 1 (1976).

The statutory distinction between parolees out of state under s. 57.13 [now s. 304.13] and absconding parolees, denying extradition to the former but not the latter, is a constitutionally valid classification. State ex rel. Niederer v. Cady, 72 Wis. 2d 311, 240 N.W.2d 626 (1976).

In order for a female prostitute to avoid prosecution upon equal protection grounds, it must be shown that the failure to prosecute male patrons was selective, persistent, discriminatory, and without justifiable prosecutorial discretion. State v. Johnson, 74 Wis. 2d 169, 246 N.W.2d 503 (1980).

Equal protection does not require symmetry in probation and parole systems. State v. Aderhold, 91 Wis. 2d 306, 284 N.W.2d 108 (Ct. App. 1979).

Discriminatory prosecution is discussed. Sears v. State, 94 Wis. 2d 128, 287 N.W.2d 785 (1980).

A gender-based rule must serve important governmental objectives and the means employed must be substantially related to the achievement of those objectives. The common law doctrine of necessaries does not deny equal protection. Marshfield Clinic v. Discher, 105 Wis. 2d 506, 314 N.W.2d 326 (1982).

It does not violate equal protection to classify employees according to retirement date for purposes of pension benefits. Bence v. Milwaukee, 107 Wis. 2d 469, 320 N.W.2d 199 (1982).

A grandfather clause granting a perpetual exception from police power regulation for certain persons for purely economic reasons denied equal protection. Wisconsin Wine & Spirit Institute v. Ley, 141 Wis. 2d 958, 416 N.W.2d 914 (Ct. App. 1987).

A prostitution raid focusing only on female participants amounts to selective prosecution in violation of equal protection. State v. McCollum, 159 Wis. 2d 184, 464 N.W.2d 44 (Ct. App. 1990).

A prisoner who is a defendant in a civil tort action is entitled to a meaningful opportunity to be heard. If no liberty interest is at stake there is no constitutional right to appointed counsel, and there is a rebuttable presumption against such appointment. Piper v. Popp, 167 Wis. 2d 633, 482 N.W.2d 353 (1992).

A nonlawyer may not sign and file a notice of appeal on behalf of a corporation. To do so constitutes practicing law without a license in violation of s. 757.30 and voids the appeal. Requiring a lawyer to represent a corporation in filing the notice does not violate constitutional guarantees of equal protection and due process. Jadair Inc. v. United States Fire Insurance Co. 209 Wis. 2d 187, 561 N.W.2d 718 (1997), 95-1946.

“Selective prosecution" when referring to the failure to prosecute all known lawbreakers has no standing in equal protection law. Only “selective prosecution" when referring to the decision to prosecute in retaliation for the exercise of a constitutional right gives rise to an actionable right under the constitution. County of Kenosha v. C. & S. Management, Inc. 223 Wis. 2d 373, 588 N.W.2d 236 (1999), 97-0642.

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.

A prosecutor's exercise of selectivity in enforcement does not create a constitutional violation. A violation occurs when there is persistent selective and intentional discrimination in the enforcement of a statute in the absence of a valid exercise of prosecutorial discretion. A defendant has the initial burden to present a prima facie showing of discriminatory prosecution before being entitled to an evidentiary hearing. State v. Kramer, 2001 WI 132, 248 Wis. 2d 1009, 637 N.W.2d 35, 99-2580.

For a prima facia case of selective prosecution, a defendant must show a discriminatory effect, that he or she has been singled out for prosecution while others similarly situated have not, and a discriminatory purpose, that the prosecutor's selection was based on an impermissible consideration such as race, religion, or other arbitrary classification. In cases involving solitary prosecutions, a defendant may also show that the government's discriminatory selection for prosecution is based on a desire to prevent the exercise of constitutional rights or is motivated by personal vindictiveness. State v. Kramer, 2001 WI 132, 248 Wis. 2d 1009, 637 N.W.2d 35, 99-2580.

Wausau's restaurant smoking ban that provided differential treatment of restaurants and private clubs did not violate equal protection as there is a rational basis for the differential treatment. Absent the ordinance's narrow definition of private clubs as non-profit organizations controlled by their members, ordinary for-profit restaurants seeking the public's patronage would be able to avoid enforcement of the smoking ban by creating the illusion of private clubs. The ordinance's method of distinguishing private clubs from other restaurants seeks to protect the greatest number of restaurant patrons while preserving the right to associate in truly private clubs that are not open to the public. City of Wausau v. Jusufi, 2009 WI App 17, 315 Wis. 2d 780, 763 N.W.2d 201, 08-1107.

A legislative classification satisfies the rational basis standard if it meets the following five criteria: 1) the classification is based upon substantial distinctions that make one class really different from another; 2) the classification is germane to the purpose of the law; 3) the classification is not based upon existing circumstances only; 4) to whatever class a law may apply, it applies equally to each member of the class; 5) the characteristics of each class are so far different from those of other classes as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation. Blake v. Jossart, 2016 WI 57, 370 Wis. 2d 1, 884 N.W.2d 484, 12-2578.

Although counties may charge reasonable fees for the use of facilities in their county parks, they may not charge such fees only to out-of-state residents while allowing all Wisconsin residents to utilize such facilities free of charge simply because ORAP or ORAP-200 funds are involved. Such action would create an arbitrary and unreasonable distinction based on residence and unconstitutionally deny residents of other states equal protection of the laws. 60 Atty. Gen. 18 (1971).

A requirement that deputy sheriffs and police officers be citizens does not deny equal protection to resident aliens. 68 Atty. Gen. 61 (1979).

Classifications by gender must serve important government objectives and must be substantially related to achievement of those objectives. Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979).

A citizenship requirement for public teachers in New York did not violate equal protection. Ambach v. Norwick, 441 U.S. 68, 99 S. Ct. 1589, 60 L. Ed. 2d 49 (1979).

A Massachusetts civil service preference for veterans did not deny equal protection to women. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979).

A worker's compensation law that required men, but not women, to prove disability or dependence on a deceased spouse's earnings violated equal protection. Wengler v. Druggists Mutual Ins. Co. 446 U.S. 142, 100 S. Ct. 1540, 64 L. Ed. 2d 107 (1980).

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, 103 S. Ct. 2690, 77 L. Ed. 2d 214 (1983).

Racial classification did not violate equal protection clause. Fullilove v. Klutznick, 448 U.S. 448, 100 S. Ct. 2758, 65 L. Ed. 2d 902 (1980). But see Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995).

A statutory rape law applicable only to males had “fair and substantial relationship" to legitimate state ends. Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 101 S. Ct. 1200, 67 L. Ed. 2d 437 (1981).

A state university open only to women violated equal protection. Mississippi University for Women v. Hogan, 458 U.S. 718, 102 S. Ct. 3331, 73 L. Ed. 2d 1090 (1982).

A layoff plan giving preference on the basis of race to accomplish affirmative action goals was not sufficiently narrowly tailored and, therefore, violated equal protection. Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986).

Student body diversity is a compelling state interest that can justify the use of race in university admissions. A race-conscious admissions program cannot use a quota system, but may consider race or ethnicity as a plus factor for an applicant, without insulating the individual from comparison with all other candidates for the available seats. An admissions program must be flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight. Race-conscious admissions policies must be limited in time. Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003).

See also Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 304 (2003).

Strict scrutiny was the proper standard of review for an equal protection challenge to a California corrections policy of racially segregating prisoners in double cells each time they enter a new correctional facility. All racial classifications imposed by government must be analyzed under strict scrutiny even when they may be said to burden or benefit the races equally. There is no exception to the rule that strict scrutiny applies to all racial classifications in the prison context. Johnson v. California, 543 U.S. 499, 125 S. Ct. 1141, 160 L. Ed 2d 2949 (2004).

It is impermissible for a school district to rely upon an individual student's race in assigning that student to a particular school so that the racial balance at the school falls within a predetermined range based on the racial composition of the school district as a whole. Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 127 S. Ct. 2738, 168 L. Ed. 2d 508 (2007).

A public employee cannot state a claim under the equal protection clause by alleging that he or she was arbitrarily treated differently from other similarly situated employees, with no assertion that the different treatment was based on the employee's membership in any particular class. Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008).

Under Grutter, strict scrutiny must be applied to any university admissions program using racial categories or classifications. Once the university has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The university must prove that the means chosen by the university to attain diversity are narrowly tailored to that goal. Strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice. Grutter did not hold that good faith would forgive an impermissible consideration of race. Fisher v. University of Texas at Austin, 570 U.S. 297, 133 S. Ct. 2411, 186 L. Ed. 2d 474 (2013). See also Fisher v. University of Texas at Austin, 579 U.S. ___, 136 S. Ct. 2198, 195 L. Ed. 2d 511 (2016).

There is no equal protection violation in a state classifying as nonresidents for tuition purposes persons who are residents for all other purposes. Lister v. Hoover, 655 F.2d 123 (1981).

The postconviction detention of a person is a violation of equal protection if it is occasioned by the prisoner's indigency. Taylor v. Gray, 375 F. Supp. 790 (1974).

The contrast between the percentage of the black population of a city, 17.2%, and the percentage of black composition of “fixed wage" skilled craft positions available in the city, 3.1%, evidenced a substantial disparity between the proportion of minorities in the general population and the proportion in a specific job classification and established a prima facie case of unlawful racial discrimination, absent a showing by the city that the statistical discrepancy resulted from causes other than racial discrimination. Crockett v. Grun, 388 F. Supp. 912 (1975).

Civil rights actions against municipalities are discussed. Starstead v. City of Superior, 533 F. Supp. 1365 (1982).

Zoning — Equal protection. 1976 WLR 234.

Equal protection — Sex discrimination. 1976 WLR 330.

Transgender Rights in Wisconsin. Diedrich. Wis. Law. March 2018.

DUE PROCESS

Although a person may invoke the right against self incrimination in a civil case in order to protect himself in a subsequent criminal action, an inference against the person's interest may be drawn as a matter of law based upon an implied admission that a truthful answer would tend to prove that the witness had committed the criminal act or what might constitute a criminal act. Molloy v. Molloy, 46 Wis. 2d 682, 176 N.W.2d 292 (1970).

A school board's refusal to renew a teacher's coaching duties in addition to full-time teaching duties, without notice and hearing, did not violate the right to due process when no charge was made that reflected on an invoked a protected liberty interest and when no legal right in the job gave rise to a protected property interest. Richards v. Board of Education, 58 Wis. 2d 444, 206 N.W.2d 597 (1973).

A property interest in employment conferred by state law is protected by the due process provisions of both the state and federal constitutions. State ex rel. DeLuca v. Common Council, 72 Wis. 2d 672, 242 N.W.2d 689 (1976).

The due process standard in juvenile proceedings is fundamental fairness. Basic requirements are discussed. In Interest of D.H. 76 Wis. 2d 286, 251 N.W.2d 196 (1977).

A permanent status public employee forfeits due process property interests in a job by accepting an inter-departmental promotion. DH&SS v. State Personnel Board, 84 Wis. 2d 675, 267 N.W.2d 644 (1978).

If an attorney is permitted to withdraw on the day of trial without notice, due process requires granting a continuance. Sherman v. Heiser, 85 Wis. 2d 246, 270 N.W.2d 397 (1978).

Liberty interests in public employment are discussed. Nufer v. Village Bd. of Village of Palmyra, 92 Wis. 2d 289, 284 N.W.2d 649 (1979).

When a city ordinance specified narrow grounds upon which civil service applicants may be screened out, an applicant had no right to know the grounds for being screened out. Taplick v. City of Madison Personnel Board, 97 Wis. 2d 162, 293 N.W.2d 173 (1980).

Due process rights of students at expulsion hearings are discussed. Racine Unified School Dist. v. Thompson, 107 Wis. 2d 657, 321 N.W.2d 334 (Ct. App. 1982).

Due process was not violated when a defendant was illegally arrested in an asylum state and involuntarily brought to trial. State v. Monje, 109 Wis. 2d 138, 325 N.W.2d 695 (1982).

Due process rights of a tenured professor who was alleged to have resigned were not protected by a hearing to determine eligibility for unemployment compensation. Patterson v. University Board of Regents, 119 Wis. 2d 570, 350 N.W.2d 612 (1984).

Attributes of property interests protected by due process are discussed. Waste Management of Wisconsin v. DNR, 128 Wis. 2d 59, 381 N.W.2d 318 (1986).

Due process rights of a probationer at a hearing to modify probation are enumerated. State v. Hayes, 173 Wis. 2d 439, 496 N.W.2d 645 (Ct. App. 1992).

The tort of intentional denial of due process is discussed. Old Tuckaway Assoc. v. City of Greenfield, 180 Wis. 2d 254, 509 N.W.2d 323 (Ct. App. 1993).