The constitutional guaranty of a remedy for injuries to person and property does not give a constitutional right to sue the state in tort. There is no right of a citizen to hold the sovereign substantively liable for torts, and the state, being immune from suit without its consent, may define the conditions under which it will permit actions against itself. Cords v. State,
62 Wis. 2d 42,
214 N.W.2d 405.
The action for common-law seduction is extended to allow recovery against the seducer by the woman herself. Slawek v. Stroh,
62 Wis. 2d 295,
215 N.W.2d 9.
The constitution does not entitle state litigants to the exact remedy they desire, but merely to their day in court. Wiener v. J.C. Penney Co.
65 Wis. 2d 139,
222 N.W.2d 149.
Illegal aliens have the right to sue in Wisconsin for injuries negligently inflicted upon them. Arteaga v. Literski,
83 Wis. 2d 128,
265 N.W.2d 148 (1978).
Pre-1981 statutory paternity proceedings, which vested exclusive authority in district attorney to commence paternity action, unconstitutionally denied the child a “day in court." Accordingly, the child's action was not barred by any statute of limitations. In re Paternity of R.W.L.,
116 Wis. 2d 150,
341 N.W.2d 682 (1984).
When an adequate remedy or forum does not exist to resolve disputes or provide due process, the courts can fashion an adequate remedy. Collins v. Eli Lilly Co.,
116 Wis. 2d 166,
342 N.W.2d 37 (1984).
A register in probate's fee based on the value of the estate does not violate this section. Treiber v. Knoll,
135 Wis. 2d 58,
398 N.W.2d 756 (1987).
A court faced with a litigant who has engaged in a pattern of frivolous litigation has the authority to implement a remedy that may include restrictions on the litigant's access to the court. Village of Tigerton v. Minniecheske,
211 Wis. 2d 777,
565 N.W.2d 586 (Ct. App. 1997),
96-1933.
This section applies only when a prospective litigant seeks a remedy for an already existing right. It preserves the right to obtain justice on the basis of law as it in fact exists. Legislative actions define how the law does exist. Aicher v. Wisconsin Patients Compensation Fund,
2000 WI 98,
237 Wis. 2d 99,
613 N.W.2d 849,
99-2955.
Although Article I, s. 9, itself may not create new rights, it does allow for a remedy through the existing common law. The goal of providing certainty is not necessarily achievable, and that is not necessarily a bad thing. The common law develops to adapt to the changing needs of society. Thomas v. Mallett,
2005 WI 129,
285 Wis. 2d 236,
701 N.W.2d 523,
03-1528.
A referee's fees increase the costs of litigation and may have a chilling effect on litigants. If the expenses are not circumscribed, people with meritorious claims will be discouraged from pursuing them in court because they cannot afford to go to court. A reference to a referee in effect requires litigants to pay for the court system twice — once through the tax system and a second time by paying fees to a referee for resolution of their suit. Referee fees may offend constitutional mandates “if they chill advocacy severely enough to `effectively end the litigation' or impose `an intolerable burden on a losing litigant.'” Appointment of a referee is for the exceptional case; it is not the general rule. Universal Processing Services v. Circuit Court of Milwaukee County,
2017 WI 26,
374 Wis. 2d 26,
892 N.W.2d 267,
16-0923.
I,9m
Victims of crime.
Section 9m
. [
As created April 1993 and amended April 2020]
I,9m(1)(a)(a) In this section, notwithstanding any statutory right, privilege, or protection, “victim” means any of the following:
I,9m(1)(a)1.
1.
A person against whom an act is committed that would constitute a crime if committed by a competent adult.
I,9m(1)(a)2.
2.
If
the
person
under
subd.
1.
is
deceased
or
is
physically
or
emotionally
unable
to exercise
his
or
her
rights
under
this
section,
the
person's
spouse,
parent
or
legal
guardian, sibling, child, person who resided with the deceased at the time of death, or other lawful representative.
I,9m(1)(a)3.
3.
If the person under subd. 1. is a minor, the person's parent, legal guardian or custodian, or other lawful
representative.
I,9m(1)(a)4.
4.
If the person under subd. 1. is adjudicated incompetent, the
person's legal
guardian or other lawful representative.
I,9m(1)(b)
(b) “
Victim” does not include the accused or a person who the court finds would not act in the best interests of a victim who is deceased, incompetent, a minor, or physically or emotionally unable to exercise his or her rights under this section.
I,9m(2)
(2) In order to preserve and protect victims' rights to justice and due process throughout the criminal and
juvenile
justice
process,
victims
shall
be
entitled
to
all
of
the
following
rights,
which shall vest
at
the
time
of
victimization
and
be
protected
by
law
in
a
manner
no
less
vigorous than the protections afforded to the accused:
I,9m(2)(a)
(a)
To be treated with dignity, respect, courtesy, sensitivity, and
fairness.
I,9m(2)(c)
(c)
To proceedings free from unreasonable
delay.
I,9m(2)(d)
(d)
To timely disposition of the case, free from unreasonable delay.
I,9m(2)(e)
(e)
Upon
request,
to
attend
all
proceedings
involving the case.
I,9m(2)(f)
(f)
To
reasonable
protection
from
the
accused
throughout
the
criminal
and
juvenile justice process.
I,9m(2)(g)
(g)
Upon request, to reasonable and timely notification of proceedings.
I,9m(2)(h)
(h)
Upon request, to confer with the attorney for the
government.
I,9m(2)(i)
(i)
Upon request, to be heard in any proceeding during which a right of the victim is implicated, including release, plea, sentencing, disposition, parole, revocation, expungement, or pardon.
I,9m(2)(j)
(j)
To have information pertaining to the economic, physical, and psychological effect upon the victim of the offense submitted to the authority with jurisdiction over
the case and to have that information considered by that
authority.
I,9m(2)(k)
(k)
Upon
request, to
timely notice of
any release or
escape of the
accused or
death of the accused if the accused is in custody or on supervision at the time of death.
I,9m(2)(L)
(L) To refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused.
I,9m(2)(m)
(m)
To full restitution from any person who has been ordered to pay restitution to the victim and to be provided with assistance collecting restitution.
I,9m(2)(n)
(n)
To compensation as provided by
law.
I,9m(2)(o)
(o)
Upon request, to reasonable and timely information about the status of the investigation and the outcome of the case.
I,9m(2)(p)
(p)
To timely notice about all rights under this section and all other rights, privileges, or protections of the victim provided by law, including how such rights, privileges, or protections are enforced.
I,9m(3)
(3) Except as provided under sub. (2) (n), all provisions of this section are self-executing. The legislature may prescribe further remedies for the violation
of
this
section and further procedures for compliance with and enforcement of this
section.
I,9m(4)(a)(a) In addition to any other available enforcement of
rights or remedy for a violation of this section or of other rights, privileges, or protections provided by law, the victim, the victim's attorney or other lawful representative, or the attorney for
the
government
upon
request
of
the
victim
may
assert
and
seek
in
any
circuit court
or
before
any
other
authority
of
competent
jurisdiction,
enforcement
of
the
rights
in this
section
and
any
other
right,
privilege,
or
protection
afforded
to
the
victim
by
law. The court or other authority with jurisdiction over the case shall act promptly on such a request and afford a remedy for the violation of any right of the victim.
The court or other
authority with jurisdiction over the case shall clearly state on the record the reasons for any decision regarding the disposition of a victim's right and shall provide those reasons to the victim or the victim's attorney or other lawful
representative.
I,9m(4)(b)
(b) Victims may obtain review of all adverse decisions concerning their rights as victims
by
courts
or
other
authorities
with
jurisdiction
under
par. (a)
by
filing
petitions
for supervisory writ in the court of appeals and supreme court.
I,9m(5)
(5) This section does not create any cause of action
for damages
against
the
state;
any
political
subdivision
of
the
state;
any
officer,
employee,
or agent
of
the
state
or
a
political
subdivision
of
the
state
acting
in
his
or
her
official
capacity; or any officer, employee, or agent of the courts acting in his or her official
capacity.
I,9m(6)
(6) This section is not intended and may not be
interpreted to supersede a defendant's federal constitutional rights or to afford party status in a proceeding to any victim. [
1991 J.R. 17, 1993 J.R. 2, vote April 1993; 2017 J.R. 13, 2019 J.R. 3, vote April 2020]
The state did not breach a plea agreement when two police officers, one of whom the defendant shot during the execution of a search warrant, requested during the sentencing hearing that the sentencing court impose the maximum sentence. The police officers were not speaking to the court as investigating officers, but as victims of a crime, which they have a right to do. In Wisconsin, every crime victim has the right to make a statement to the court at disposition. State v. Stewart,
2013 WI App 86,
349 Wis. 2d 385,
836 N.W.2d 456,
12-1457.
The 2020 constitutional amendment creating this section grants standing to a crime victim to oppose and to make arguments supporting the victim's opposition to a defendant's
Shiffra,
175 Wis. 2d 600 (1993), motion for an in camera review. That grant of standing applies retrospecitvely to a victim's request for standing. This section therefore abrogates the holding regarding standing in
Jessica J.L.,
223 Wis. 2d 622 (1998). State v. Johnson,
2020 WI App 73,
394 Wis. 2d 807,
951 N.W.2d 616,
19-0664.
This section provides for restitution only insofar as the legislature confers that right through statute. The legislature makes restitution available to crime victims under s. 973.20 and other statutes, but crime victims are not guaranteed restitution in every instance. Section 973.20 (12) (b) makes clear that restitution payments take priority over specific statutory fees, surcharges, fines, and costs, but the priority scheme does not include supervision fees under s. 304.074. OAG 2-15.
Marsy's Law: Changes for Crime Victims? Donaldson, Rabe Mayer, Robson, Rufo, Sattler, & Shirley. Wis. Law. Sept. 2020.
I,10
Treason. Section 10
. Treason against the state shall consist only in levying war against the same, or in adhering to its enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
I,11
Searches and seizures.
Section 11
. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
GENERAL
Electronic eavesdropping, done with the consent of one of the parties, does not violate the U.S. Constitution. State ex rel. Arnold v. County Court,
51 Wis. 2d 434,
187 N.W.2d 354 (1971).
The prohibition against unreasonable searches and seizures is not limited to criminal cases. It applies in forfeiture actions arising out of ordinance violations. City of Milwaukee v. Cohen,
57 Wis. 2d 38,
203 N.W.2d 633 (1973).
An inspection by police of a basement storage room accessible to the public and the observation of evidence found there in open view that was later seized under a search warrant did not amount to an improper invasion of the defendant's privacy. Watkins v. State,
59 Wis. 2d 514,
208 N.W.2d 449 (1973).
Police have a right to lock a car to protect its contents after arresting the driver, but if it is already locked they cannot enter it on the pretense of locking it and thus discover contraband. When the car was borrowed, consent by the lawful user of the car was sufficient to allow a search and any containers found could be opened and examined. Soehle v. State,
60 Wis. 2d 72,
208 N.W.2d 341 (1973).
When officers, armed with a search warrant, knocked on a door, pushed it open when the defendant opened it two inches, and put him under restraint before showing the warrant, they acted legally. State v. Meier,
60 Wis. 2d 452,
210 N.W.2d 685 (1973).
The observation of tools in a car by police officers did not constitute a search, and the tools could be seized and were properly admissible into evidence. Anderson v. State,
66 Wis. 2d 233,
223 N.W.2d 879 (1974).
Pertinent to the validity of an investigative stop is whether the facts available to the officer at the moment of the seizure warrant a man of reasonable caution in the belief that the action taken was appropriate. Wendricks v. State,
72 Wis. 2d 717,
242 N.W.2d 187 (1976).
When an abused child, an occupant of defendant's house, was accompanied to the house by social workers to recover the child's belongings and exhibited to the workers the instruments used to inflict punishment, a subsequent search warrant was not tainted by an unconstitutional search. State v. Killory,
73 Wis. 2d 400,
243 N.W.2d 475 (1976).
When evidence seized in an illegal search was admitted, no reversible error resulted when other evidence uninfluenced by the inadmissible evidence was sufficient to convict. Kelly v. State,
75 Wis. 2d 303,
249 N.W.2d 800 (1977).
The drawing and testing of blood solely for diagnostic and not government-instigated purposes was not a “search or seizure" even when the testing physician testified at a negligent homicide trial. State v. Jenkins,
80 Wis. 2d 426,
259 N.W.2d 109 (1977).
A person who is lawfully in custody for a civil offense may be required to participate in a lineup for an unrelated criminal offense. State v. Wilks,
121 Wis. 2d 93,
358 N.W.2d 273 (1984).
There is no reasonable expectation of privacy in garbage once it has been routinely collected by garbage collectors. State v. Stevens,
123 Wis. 2d 303,
367 N.W.2d 788 (1985).
Under the inevitable discovery doctrine, evidence seized under a defective search warrant was admissible because a later inventory search would have discovered it. State v. Kennedy,
134 Wis. 2d 308,
396 N.W.2d 765 (Ct. App. 1986).
The reasonableness of an investigative stop depends on facts and circumstances present at the time of the stop. State v. Guzy,
139 Wis. 2d 663,
407 N.W.2d 548 (1987).
When an officer observed a traffic violation but stopped the vehicle merely to render assistance, inadvertently discovered criminal evidence was admissible. State v. Baudhuin,
141 Wis. 2d 642,
416 N.W.2d 60 (1987).
The trial court is permitted to consider suppressed evidence at sentencing when nothing suggests consideration will encourage illegal searches. State v. Rush,
147 Wis. 2d 225,
432 N.W.2d 688 (Ct. App. 1988).
An escapee does not have a legitimate privacy expectation in premises other than the penal institution the escapee is sent to. State v. Amos,
153 Wis. 2d 257,
450 N.W.2d 503 (Ct. App. 1989).
Aerial surveillance using standard binoculars and cameras with generally available standard and zoom lenses from an airplane flying no lower than 800 feet was reasonable. State v. Lange,
158 Wis. 2d 609,
463 N.W.2d 390 (Ct. App. 1990).
The statutory privilege protecting an informer protects the contents of a communication that will tend to reveal the identity of the informant. The trial court may rely on redacted information in determining the informant's reliability and credibility in determining whether there was reasonable suspicion justifying a warrantless seizure. State v. Gordon,
159 Wis. 2d 335,
464 N.W.2d 91 (Ct. App. 1990).
Bank customers have no protectable privacy interest in bank records relating to accounts. State v. Swift,
173 Wis. 2d 870,
496 N.W.2d 713 (Ct. App. 1993).
A defendant had no reasonable expectation of privacy in a porch through which the door to the living area was visible and that was entered through an unlocked screen door. When an officer came to the defendant's residence for a legitimate purpose, observation of contraband from the porch through a window in the interior door was not a search. State v. Edgeberg,
188 Wis. 2d 339,
524 N.W.2d 911 (Ct. App. 1994).
The use of a police dog to sniff an automobile parked in a motel parking lot did not constitute a search. There is no legitimate expectation of privacy in the air space around a car in a motel parking lot. State v. Garcia,
195 Wis. 2d 68,
535 N.W.2d 124 (Ct. App. 1995),
94-2573.
Although a vehicle had been improperly seized, evidence obtained in a later search of the vehicle under a warrant that was not based on information gathered from the illegal seizure was not subject to suppression. State v. Gaines,
197 Wis. 2d 102,
539 N.W.2d 723 (Ct. App. 1995),
94-1225.
When executing a search warrant on private premises, the belongings of a visitor on the premises that are plausible repositories for the objects of the search, except those worn by or in the physical possession of persons whose search is not authorized by the warrant, may be searched. State v. Andrews,
201 Wis. 2d 383,
549 N.W.2d 210 (1996),
94-1888.
Presence in a high drug-trafficking area, a brief meeting of individuals on a sidewalk in the afternoon, and the officer's experience that drug transactions that take place in that neighborhood involve brief meetings on the street, without more, is not particularized suspicion justifying an investigative stop. State v. Young,
212 Wis. 2d 417,
569 N.W.2d 84 (Ct. App. 1997),
97-0034.
A prison inmate does not possess a reasonable expectation of privacy in the inmate's body that permits a 4th amendment challenge to strip searches. Prisoners convicted of crimes are protected from cruel and unusual treatment that prohibits prison officials from utilizing strip searches to punish, harass, humiliate, or intimidate inmates regardless of their status in the institution. Al Ghashiyah v. McCaughtry,
230 Wis. 2d 587,
602 N.W.2d 307 (Ct. App. 1999),
98-3020.
Police failure to comply with the rule of announcement in violation of the 4th amendment and this section did not require suppression of the evidence seized when the officers relied, in objective good faith, upon the pronouncements of the Wisconsin Supreme Court, as no remedial purpose would be served. State v. Ward,
2000 WI 3,
231 Wis. 2d 723,
604 N.W.2d 517,
97-2008.
A curtilage determination is a question of constitutional fact subject to a two-step review. The findings of evidentiary or historical fact are reviewed for clear error to determine if they are contrary to the great weight and clear preponderance of the evidence. The ultimate determination of constitutional fact is reviewed de novo. State v. Martwick,
2000 WI 5,
231 Wis. 2d 801,
604 N.W.2d 552,
98-0101.
Generally a premises warrant authorizes the search of all items that are plausible receptacles of the objects of the search. When currency was an object, looking through documents for hidden currency was appropriate. When the incriminating nature of the document was apparent upon brief perusal, its seizure was justified under the plain view doctrine. State v. Oswald,
2000 WI App 3,
232 Wis. 2d 103,
606 N.W.2d 238,
97-1219.
When a person turns material over to a third party, the person who turned over the material has no 4th amendment protection if the third party reveals or conveys the material to governmental authorities, whether or not the person who turned over the material had a subjective belief that the third party would not betray him or her. State v. Knight,
2000 WI App 16,
232 Wis. 2d 305,
606 N.W.2d 291,
99-0368.
While the subtleties of police practice in some cases necessitate an expert witness, there is no per se requirement that there be expert testimony to prove an excessive use of force claim. Robinson v. City of West Allis,
2000 WI 126,
239 Wis. 2d 595,
619 N.W.2d 692,
98-1211.
What a person knowingly exposes to the public is not subject to 4th amendment protection. An inner tube rental and campground business did not have a reasonable expectation of privacy in areas open to the public. Float-Rite Park, Inc. v. Village of Somerset,
2001 WI App 113,
244 Wis. 2d 34,
629 N.W.2d 818,
00-1610.
An individual does not have a reasonable expectation of privacy in a public restroom stall when the individual occupies it with another individual, leaves the door slightly ajar, and evinces no indication that the stall is being used for its intended purpose. State v. Orta,
2003 WI App 93,
264 Wis. 2d 765,
663 N.W.2d 358,
02-1008.
The first sentence of this section is a statement of purpose that describes the policies to be promoted by the state and does not create an enforceable, self-executing right. Schilling v. Wisconsin Crime Victims Rights Board,
2005 WI 17,
278 Wis. 2d 216,
692 N.W.2d 623,
03-1855.
