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. The test for whether this state can, consistent with due process, exercise its police power to regulate an out-of-state entity is whether the out-of-state entity has incidents and requires activities within the state intimately related to local welfare. Payday Loan Resolution, LLC v. DFI, 2019 WI App 28, 388 Wis. 2d 117, 931 N.W.2d 279, 18-0821. Constitutional due process protections are unavailable to probationary employees. A probationary employee has no more than a unilateral expectation of completing the employee’s probation and being hired as a permanent employee. That expectation is insufficient for procedural due process protections to attach. An employee must instead have a legitimate claim of entitlement to the position to give rise to a property interest warranting protection. State ex rel. Massman v. City of Prescott, 2020 WI App 3, 390 Wis. 2d 378, 938 N.W.2d 602, 18-1621. The right to an impartial judge is fundamental to our notion of due process. A reviewing court presumes that a judge has acted fairly, impartially, and without bias. To overcome that presumption, the burden is on the party asserting judicial bias to show bias by a preponderance of the evidence. In evaluating whether a party has rebutted the presumption, courts have taken both a subjective and objective approach. A judge must disqualify himself or herself from a case if the judge subjectively determines that the judge is unable to remain impartial. To assess whether the probability of actual bias rises to the level of a due process violation, courts ask whether there is a serious risk of actual bias based on objective and reasonable perceptions. It is the exceptional case with extreme facts that rises to the level of a serious risk of actual bias. Miller v. Carroll, 2020 WI 56, 392 Wis. 2d 49, 944 N.W.2d 542, 17-2132. The extreme facts of this case, in which a circuit court judge had an undisclosed social media connection with a litigant, rebutted the presumption of judicial impartiality and established a due process violation. Miller v. Carroll, 2020 WI 56, 392 Wis. 2d 49, 944 N.W.2d 542, 17-2132. To establish specific personal jurisdiction, there must be some act by which the defendant purposefully availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum state. This purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral activity of another party or a third person. In this case, the defendant’s sole contact with Wisconsin was its contract with a Wisconsin business. A corporation’s contract with an out-of-state party alone is not enough to automatically establish the requisite minimum contacts needed to satisfy the 14th amendment’s due process clause. CITGO Petroleum Corp. v. MTI Connect, LLC, 2020 WI App 57, 394 Wis. 2d 126, 949 N.W.2d 577, 18-1555. The due process requirement of Loudermill, 470 U.S. 532 (1985), does not require any formal written notice listing all policy violations at issue in a municipality’s discipline action against an employee, or that an employee’s right to respond to those violations be available during a formal contested hearing before a neutral adjudicator prior to the discipline. In fact, Loudermill holds to the contrary. Namely, when sufficient post-disciplinary procedures are available, due process is satisfied as long as an employee is provided notice and given some opportunity to respond to the alleged charges against the employee before discipline is imposed. Green Bay Professional Police Ass’n v. City of Green Bay, 2021 WI App 73, 399 Wis. 2d 504, 966 N.W.2d 107, 21-0102. There is no due process right to impartial decision-makers when a legislative body like a village board enacts, repeals, or amends a generally applicable law like a zoning ordinance. When adjudicative acts are involved, procedural due process requires impartial decision-makers. When legislative actions are at issue, however, those affected by legislation are not entitled to any process beyond that provided by the legislative process. Miller v. Zoning Board of Appeals, 2023 WI 46, 407 Wis. 2d 678, 991 N.W.2d 380, 21-1764. A public employee terminable only for cause has a property interest in continued employment. Loudermill, 470 U.S. 532 (1985), generally entitles such an employee to notice of the charges, an explanation of the evidence supporting them, and some pre-termination opportunity to respond. The scope and the nature of the pre-termination procedures can vary depending on the nature of the post-termination proceedings and the interests that are implicated. Loudermill does not require an explanation of the reasons discharge is a chosen punishment as opposed to suspension or something lesser. Rather, Loudermill just requires an explanation of the basic reasons the employee is being disciplined. Andrade v. City of Milwaukee Board of Fire & Police Commissioners, 2024 WI 17, 411 Wis. 2d 340, 5 N.W.3d 261, 20-0333. The Wisconsin Medical Examining Board does not deny due process by both investigating and adjudicating a charge of professional misconduct. Withrow v. Larkin, 421 U.S. 35, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975). Due process does not disqualify an agency as a decision maker merely because of familiarity with the facts of a case. Hortonville Joint School District No. 1 v. Hortonville Education Ass’n, 426 U.S. 482, 96 S. Ct. 2308, 49 L. Ed. 2d 1 (1976). 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 Division v. Craft, 436 U.S. 1, 98 S. Ct. 1554, 56 L. Ed. 2d 30 (1978). A father’s acquiescence in his daughter’s desire to live with her mother in California did not confer jurisdiction over the father in California courts. Kulko v. Superior Court, 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978). The due process clause was not violated when the Internal Revenue Service (IRS) monitored a conversation with the defendant in violation of IRS rules. United States v. Caceres, 440 U.S. 741, 99 S. Ct. 1465, 59 L. Ed. 2d 733 (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, 100 S. Ct. 571, 62 L. Ed. 2d 516 (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, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (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, 101 S. Ct. 173, 66 L. Ed. 2d 163 (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 Insurance Co. v. Hague, 449 U.S. 302, 101 S. Ct. 633, 66 L. Ed. 2d 521 (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, 101 S. Ct. 2202, 68 L. Ed. 2d 627 (1981). Due process does not require appointment of counsel for indigent parents in every parental status termination proceeding. Lassiter v. Department of Social Services, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981). 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, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).
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wisconsinconstitution
/constitution/wi/000229/000004/000013
section
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