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). 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). 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.
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 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). 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 percent, and the percentage of black composition of “fixed wage” skilled craft positions available in the city, 3.1 percent, 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. Green, 388 F. Supp. 912 (1975). Discussing civil rights actions against municipalities. Starstead v. City of Superior, 533 F. Supp. 1365 (1982). Zoning—Equal Protection. Cooper. 1976 WLR 234.
Constitutional Law—Equal Protection—Sex Discrimination—Selective Service Laws. Ruhl. 1976 WLR 330.
Transgender Rights in Wisconsin. Diedrich. Wis. Law. Mar. 2018.
due process
Although a person may invoke the right against self incrimination in a civil case in order to protect the person 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 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. Discussing basic requirements. D.H. v. State, 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. DHSS 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). 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). Discussing due process rights of students at expulsion hearings. Racine Unified School District 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. Board of Regents, 119 Wis. 2d 570, 350 N.W.2d 612 (1984). Discussing attributes of property interests protected by due process. Waste Management of Wisconsin, Inc. v. DNR, 128 Wis. 2d 59, 381 N.W.2d 318 (1986). Enumerating due process rights of a probationer at a hearing to modify probation. State v. Hays, 173 Wis. 2d 439, 496 N.W.2d 645 (Ct. App. 1992). Discussing the tort of intentional denial of due process. Old Tuckaway Associates v. City of Greenfield, 180 Wis. 2d 254, 509 N.W.2d 323 (Ct. App. 1993). A property interest conferred by a statute subsequently amended to make an appointed governmental position at-will is terminated upon the conclusion of the appointing official’s term of office. Unertl v. Dane County, 190 Wis. 2d 145, 526 N.W.2d 775 (Ct. App. 1994). A procedural due process claim arises when there is a deprivation of a right without sufficient process. Generally a predeprivation hearing is required, but when a deprivation results from a random act of a state employee, the question becomes the adequacy of postdeprivation remedies. Jones v. Dane County, 195 Wis. 2d 892, 537 N.W.2d 74 (Ct. App. 1995), 92-0946. Substantive due process requires that the state not deprive its citizens of life, liberty, or property without due process. Absent a special relationship, it does not impose an affirmative obligation upon the state to ensure the protection of those rights from a private actor, even when governmental aid may be necessary to secure a person’s life, liberty, or property. Jones v. Dane County, 195 Wis. 2d 892, 537 N.W.2d 74 (Ct. App. 1995), 92-0946. When a prisoner could not show that a period of segregated confinement that exceeded the time allowed by rule was not atypical of the prisoner’s prison life generally, there was no unconstitutional due process deprivation. The only time factor that courts will be concerned with in determining a procedural due process deprivation is the time the inmate is ultimately required to spend confined under the authority of the state. Chaney v. Renteria, 203 Wis. 2d 310, 554 N.W.2d 503 (Ct. App. 1996), 94-2557. Foster children have a constitutional right under the due process clause to safe and secure placement in a foster home. Whether a public official violated that right will be determined based on a professional judgment standard. Kara B. v. Dane County, 205 Wis. 2d 140, 555 N.W.2d 630 (1996), 94-1081. An inmate has a constitutionally protected liberty interest in not having the inmate’s mandatory release date extended. Due process is violated in a prison discipline case when guilt is found if there is not “some evidence” that supports the finding of guilt. Santiago v. Ware, 205 Wis. 2d 295, 556 N.W.2d 356 (Ct. App. 1996), 95-0079. 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 file 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. Whether to proceed with civil litigation or to hold it in abeyance while a party is incarcerated depends on the nature of the case, the practical concerns raised by the prisoner’s appearance, and the alternative methods available to provide the prisoner with access to the hearing. Schmidt v. Schmidt, 212 Wis. 2d 405, 569 N.W.2d 74 (Ct. App. 1997), 96-3699. 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), 95-1592. 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 third party only if the third party and criminal defendant have sufficient identity of interest so that in the prior proceeding the third party had a full opportunity to fairly adjudicate the issues leading to the conviction. If not, the third 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 the parent’s 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 Department of Human Services v. Kelli B., 2004 WI 48, 271 Wis. 2d 51, 678 N.W.2d 831, 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 to 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 the Department of Corrections may infringe on the prisoner’s liberty interest by forcing the prisoner to ingest food and fluids against the prisoner’s 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. If a prisoner disputes the department’s allegations, a circuit court may not continue the order for involuntary feeding and hydration without providing the prisoner an opportunity to meaningfully participate in an evidentiary hearing. The order for involuntary feeding and hydration cannot be of indefinite or permanent duration without a mechanism for periodic review. DOC v. Saenz, 2007 WI App 25, 299 Wis. 2d 486, 728 N.W.2d 765, 05-2750. The due process clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Nevertheless, a parent’s fundamental right to make decisions concerning the parent’s child is not unlimited. Parents’ fundamental right to make decisions for their children about religion and medical care does not prevent the state from imposing criminal liability on a parent who fails to protect the child when the parent has a legal duty to act. State v. Neumann, 2013 WI 58, 348 Wis. 2d 455, 832 N.W.2d 560, 11-1044. A statute creating a presumption that operates to deny a fair opportunity to rebut it violates the due process clause of the 14th amendment. However, the irrebuttable presumption doctrine does not prevent the legislature from creating a classification in social welfare legislation whereby those who satisfy certain criteria are ineligible from receiving subsidized child care payments. Blake v. Jossart, 2016 WI 57, 370 Wis. 2d 1, 884 N.W.2d 484, 12-2578. The threshold question when reviewing a substantive due process claim is whether a fundamental right is implicated or whether a suspect class is disadvantaged by the challenged legislation. If the claim involves neither a fundamental right nor a suspect class, courts conduct a rational basis review to evaluate whether the statute is rationally related to achieving a legitimate governmental interest. Blake v. Jossart, 2016 WI 57, 370 Wis. 2d 1, 884 N.W.2d 484, 12-2578. A law is retroactive if it takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past. A statute does not operate retroactively simply because it is applied in a case arising from conduct antedating the statute’s enactment or upsets expectations based on prior law. The mere expectation of a future benefit or contingent interest does not create a vested right. Lands’ End, Inc. v. City of Dodgeville, 2016 WI 64, 370 Wis. 2d 500, 881 N.W.2d 702, 15-0179. Any right to confrontation and cross-examination implicated by the due process clause is relaxed at a suppression hearing. Ultimately, due process is flexible and calls for such procedural protections as the particular situation demands. In this case, the arresting officer’s death rendered him unavailable to testify at the suppression hearing. However, testimony by a second officer established that the recording from the dashboard camera on the arresting officer’s squad car accurately and continuously documented the portions of the stop observed by the second officer and the audio portion of that same recording captured a statement made by the arresting officer to the defendant. The circuit court’s reliance on that hearsay statement did not offend the reduced standard for due process of law required at a suppression hearing. State v. Zamzow, 2017 WI 29, 374 Wis. 2d 220, 892 N.W.2d 637, 14-2603. Denying a defendant the opportunity to present the defendant’s case-in-chief in a termination of parental rights proceeding is a structural error, the consequence of which is an automatic new trial. State v. C.L.K., 2019 WI 14, 385 Wis. 2d 418, 922 N.W.2d 807, 17-1413.
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