Wisconsin Legislature: 000212

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.

Interpreting the Wisconsin Constitution. Suhr. 97 MLR 93 (2013).

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

A Jurist’s Language of Interpretation. Diedrich. Wis. Law. July/Aug. 2020.

IARTICLE I.

DECLARATION OF RIGHTS

I,1Equality; 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 first 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 Ass’n v. Hortonville Joint School District No. 1, 66 Wis. 2d 469, 225 N.W.2d 658 (1975).

Reversed on other grounds. 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 (1976).

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).

Discussing discriminatory prosecution. 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. City of 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, 562 N.W.2d 401 (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 the defendant 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 was 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 sought to protect the greatest number of restaurant patrons while preserving the right to associate in truly private clubs that were 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.

To show that a statute unconstitutionally denies equal protection of the law, a party must demonstrate that the statute treats members of similarly situated classes differently. The right to equal protection does not require that such similarly situated classes be treated identically, but rather requires that the distinction made in treatment have some relevance to the purpose for which classification of the classes is made. In cases in which a statutory classification does not involve a suspect class or a fundamental interest, the classification will be upheld if there is any rational basis to support it. Blake v. Jossart, 2016 WI 57, 370 Wis. 2d 1, 884 N.W.2d 484, 12-2578.

When a party claims an equal protection violation that does not involve a suspect class or fundamental interest, the court is presented with three questions: 1) does the challenged statute create distinct classes of persons; 2) is a class treated differently from others similarly situated; and 3) is there a rational basis for different treatment. Arty’s, LLC v. DOR, 2018 WI App 64, 384 Wis. 2d 320, 919 N.W.2d 590, 17-0886.

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.

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

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 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 Insurance Co., 446 U.S. 142, 100 S. Ct. 1540, 64 L. Ed. 2d 107 (1980).

A racial classification did not violate the 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 a “fair and substantial relationship” to legitimate state ends. Michael M. v. 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 state’s policy of preserving county boundaries in a reapportionment plan justified a population deviation averaging 13 percent. Brown v. Thomson, 462 U.S. 835, 103 S. Ct. 2690, 77 L. Ed. 2d 214 (1983).

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 257 (2003). But see Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. ___, 143 S. Ct. 2141, 216 L. Ed. 2d 857 (2023).

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 entered 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 949 (2005).

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 the employee 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, 539 U.S. 306 (2003), 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. 365, 136 S. Ct. 2198, 195 L. Ed. 2d 511 (2016). But see Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. ___, 143 S. Ct. 2141, 216 L. Ed. 2d 857 (2023).

The Court has permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and at some point they must end. In this case, the respondents’ admissions systems, however well-intentioned and implemented in good faith, failed each of those criteria and must therefore be invalidated under the equal protection clause of the 14th amendment to the U.S. Constitution. Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. ___, 143 S. Ct. 2141, 216 L. Ed. 2d 857 (2023).