Wisconsin Constitution

Updated through January, 31, 2011
1 09−10 Wis. Stats.
WISCONSIN CONSTITUTION
UPDATED THROUGH JANUARY 31, 2011.
PREAMBLE 19. Origin of bills.

ARTICLE I. 20. Yeas and nays.
21. Repealed.
DECLARATION OF RIGHTS. 22. Powers of county boards.
Section 23. Town and county government.
1. Equality; inherent rights. 23a. Chief executive officer to approve or veto resolu-
2. Slavery prohibited. tions or ordinances; proceedings on veto.
3. Free speech; libel. 24. Gambling.
4. Right to assemble and petition. 25. Stationery and printing.
5. Trial by jury; verdict in civil cases. 26. Extra compensation; salary change.
6. Excessive bail; cruel punishments. 27. Suits against state.
7. Rights of accused. 28. Oath of office.
8. Prosecutions; double jeopardy; self−incrimina- 29. Militia.
tion; bail; habeas corpus. 30. Elections by legislature.
9. Remedy for wrongs. 31. Special and private laws prohibited.
9m. Victims of crime. 32. General laws on enumerated subjects.
10. Treason. 33. Auditing of state accounts.
11. Searches and seizures. 34. Continuity of civil government.
12. Attainder; ex post facto; contracts.
13. Private property for public use. ARTICLE V.
14. Feudal tenures; leases; alienation. EXECUTIVE.
15. Equal property rights for aliens and citizens. Section
16. Imprisonment for debt. 1. Governor; lieutenant governor; term.
17. Exemption of property of debtors. 1m. Repealed.
18. Freedom of worship; liberty of conscience; state 1n. Repealed.
religion; public funds. 2. Eligibility.
19. Religious tests prohibited. 3. Election.
20. Military subordinate to civil power. 4. Powers and duties.
21. Rights of suitors. 5. Repealed.
22. Maintenance of free government. 6. Pardoning power.
23. Transportation of school children. 7. Lieutenant governor, when governor.
24. Use of school buildings. 8. Secretary of state, when governor.
25. Right to keep and bear arms. 9. Repealed.
26. Right to fish, hunt, trap, and take game. 10. Governor to approve or veto bills; proceedings on
ARTICLE II. veto.
BOUNDARIES. ARTICLE VI.
Section ADMINISTRATIVE.
1. State boundary. Section
2. Enabling act accepted. 1. Election of secretary of state, treasurer and attor-
ARTICLE III. ney general; term.
SUFFRAGE. 1m. Repealed.
Section 1n. Repealed.
1. Electors. 1p. Repealed.
2. Implementation. 2. Secretary of state; duties, compensation.
3. Secret ballot. 3. Treasurer and attorney general; duties, compensation.
4. Repealed. 4. County officers; election, terms, removal; vacancies.
5. Repealed. ARTICLE VII.
6. Repealed.
JUDICIARY.
ARTICLE IV. Section
LEGISLATIVE. 1. Impeachment; trial.
Section 2. Court system.
1. Legislative power. 3. Supreme court: jurisdiction.
2. Legislature, how constituted. 4. Supreme court: election, chief justice, court system
3. Apportionment. administration.
4. Representatives to the assembly, how chosen. 5. Court of appeals.
5. Senators, how chosen. 6. Circuit court: boundaries.
6. Qualifications of legislators. 7. Circuit court: election.
7. Organization of legislature; quorum; compulsory 8. Circuit court: jurisdiction.
attendance. 9. Judicial elections, vacancies.
8. Rules; contempts; expulsion. 10. Judges: eligibility to office.
9. Officers. 11. Disciplinary proceedings.
10. Journals; open doors; adjournments. 12. Clerks of circuit and supreme courts.
11. Meeting of legislature. 13. Justices and judges: removal by address.
12. Ineligibility of legislators to office. 14. Municipal court.
13. Ineligibility of federal officers. 15. Repealed.
14. Filling vacancies. 16. Repealed.
15. Exemption from arrest and civil process. 17. Repealed.
16. Privilege in debate. 18. Repealed.
17. Enactment of laws. 19. Repealed.
18. Title of private bills. 20. Repealed.
Updated through January 31, 2011

09−10 Wis. Stats. 2
21. Repealed. 3a. Acquisition of lands by state and subdivisions; sale

22. Repealed. of excess.
23. Repealed. 4. General banking law.
24. Justices and judges: eligibility for office; retirement. 5. Repealed.
ARTICLE VIII. ARTICLE XII.
FINANCE. AMENDMENTS.
Section Section
1. Rule of taxation uniform; income, privilege and 1. Constitutional amendments.
occupation taxes. 2. Constitutional conventions.
2. Appropriation; limitation. ARTICLE XIII.
3. Credit of state.
MISCELLANEOUS PROVISIONS.
4. Contracting state debts.
Section
5. Annual tax levy to equal expenses. 1. Political year; elections.
6. Public debt for extraordinary expense; taxation. 2. Repealed.
7. Public debt for public defense; bonding for public 3. Eligibility to office.
purposes. 4. Great seal.
8. Vote on fiscal bills; quorum. 5. Repealed.
9. Evidences of public debt. 6. Legislative officers.
10. Internal improvements. 7. Division of counties.
ARTICLE IX. 8. Removal of county seats.
EMINENT DOMAIN AND PROPERTY OF THE STATE. 9. Election or appointment of statutory officers.
Section 10. Vacancies in office.
1. Jurisdiction on rivers and lakes; navigable waters. 11. Passes, franks and privileges.
2. Territorial property. 12. Recall of elective officers.
3. Ultimate property in lands; escheats. 13. Marriage.
ARTICLE X. ARTICLE XIV.
EDUCATION. SCHEDULE.
Section Section
1. Superintendent of public instruction. 1. Effect of change from territory to state.
2. School fund created; income applied. 2. Territorial laws continued.
3. District schools; tuition; sectarian instruction; 3. Repealed.
released time. 4. Repealed.
4. Annual school tax 5. Repealed.
5. Income of school fund. 6. Repealed.
6. State university; support. 7. Repealed.
7. Commissioners of public lands. 8. Repealed.
8. Sale of public lands. 9. Repealed.
10. Repealed.
ARTICLE XI. 11. Repealed.
CORPORATIONS. 12. Repealed.
Section 13. Common law continued in force.
1. Corporations; how formed. 14. Repealed.
2. Property taken by municipality. 15. Repealed.
3. Municipal home rule; debt limit; tax to pay debt. 16. Implementing revised structure of judicial branch.
Note: An index to the Wisconsin Constitution follows. The general index tionally deny protection. Hortonville Education Association v. Joint School Dis-
contains references to the Wisconsin Constitution under the head “Constitu- trict No. 1, 66 Wis. 2d 469, 225 N.W.2d 658.
tion, Wisconsin.” 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 lat-
ter, is a constitutionally valid classification. State ex rel. Niederer v. Cady, 72 Wis.
PREAMBLE 2d 311, 240 N.W.2d 626.
In order for a female prostitute to avoid prosecution upon equal protection
We, the people of Wisconsin, grateful to Almighty God for grounds, it must be shown that the failure to prosecute male patrons was selective,
our freedom, in order to secure its blessings, form a more perfect persistent, discriminatory, and without justifiable prosecutorial discretion. State v.
government, insure domestic tranquility and promote the gen- Johnson, 74 Wis. 2d 169, 246 N.W.2d 503.
Equal protection does not require symmetry in probation and parole systems.
eral welfare, do establish this constitution. State v. Aderhold, 91 Wis. 2d 306, 284 N.W.2d 108 (Ct. App. 1979).
The Making of the Wisconsin Constitution. Rainey. Wis. Law. Sept. 1992. 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
ARTICLE I. means employed must be substantially related to the achievement of those objec-
tives. 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).
DECLARATION OF RIGHTS 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).
Equality; inherent rights. SECTION 1. [As amended Nov. A grandfather clause granting a perpetual exception from police power regula-
tion for certain persons for purely economic reasons denied equal protection. Wis-
1982 and April 1986] All people are born equally free and inde- consin Wine & Spirit Institute v. Ley, 141 Wis. 2d 958, 416 N.W.2d 914 (Ct. App.
pendent, and have certain inherent rights; among these are life, 1987).
liberty and the pursuit of happiness; to secure these rights, gov- A prostitution raid focusing only on female participants amounts to selective
ernments are instituted, deriving their just powers from the con- prosecution in violation of equal protection. State v. McCollum, 159 Wis. 2d 184,
464 N.W.2d 44 (Ct. App. 1990).
sent of the governed. [1979 J.R. 36, 1981 J.R. 29, vote Nov. A prisoner who is a defendant in a civil tort action is entitled to a meaningful
1982; 1983 J.R. 40, 1985 J.R. 21, vote April 1986] 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
EQUAL PROTECTION appointment. Piper v. Popp, 167 Wis. 2d 633, 482 N.W.2d 353 (1992).
The fact that there is no mandatory release date for persons convicted of 1st A nonlawyer may not sign and file a notice of appeal on behalf of a corporation.
degree murder as there is for other crimes does not amount to denial of equal protec- To do so constitutes practicing law without a license in violation of s. 757.30 and
tion. Bies v. State, 53 Wis. 2d 322, 193 N.W.2d 46. voids the appeal. Requiring a lawyer to represent a corporation in filing the notice
Legislative classifications violate equal protection only if they are irrational or does not violate constitutional guarantees of equal protection and due process. Jad-
arbitrary. Any reasonable basis for the classification validates the statute. There air Inc. v. United States Fire Insurance Co. 209 Wis. 2d 187, 561 N.W.2d 718
is a five point test to determine reasonableness. Omernik v. State, 64 Wis. 2d 6, 218 (1997), 95−1946.
N.W.2d 734 (1974). “Selective prosecution” when referring to the failure to prosecute all known law-
There is a meaningful distinction between governmental employees and non- breakers has no standing in equal protection law. Only “selective prosecution”
governmental employees. The statutory strike ban imposed on public employees when referring to the decision to prosecute in retaliation for the exercise of a consti-
is based upon a valid classification and the legislation creating it is not unconstitu- tutional 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), DUE PROCESS
97−0642.
The state and federal constitutions provide identical procedural due process and Although a person may invoke the right against self incrimination in a civil case
equal protection safeguards. County of Kenosha v. C. & S. Management, Inc. 223 in order to protect himself in a subsequent criminal action, an inference against the
Wis. 2d 373, 588 N.W.2d 236 (1999), 97−0642. person’s interest may be drawn as a matter of law based upon an implied admission
A prosecutor’s exercise of selectivity in enforcement does not create a constitu- that a truthful answer would tend to prove that the witness had committed the crimi-
tional violation. A violation occurs when there is persistent selective and inten- nal act or what might constitute a criminal act. Molloy v. Molloy, 46 Wis. 2d 682,
tional discrimination in the enforcement of a statute in the absence of a valid exer- 176 N.W.2d 292.
cise of prosecutorial discretion. A defendant has the initial burden to present a A school board’s refusal to renew a teacher’s coaching duties in addition to full−
prima facie showing of discriminatory prosecution before being entitled to an evi- time teaching duties, without notice and hearing, did not violate the right to due pro-
dentiary hearing. State v. Kramer, 2001 WI 132, 248 Wis. 2d 1009, 637 N.W.2d cess when no charge was made that reflected on an invoked a protected liberty inter-
35, 99−2580. est and when no legal right in the job gave rise to a protected property interest.
For a prima facia case of selective prosecution, a defendant must show a discrim- Richards v. Board of Education, 58 Wis. 2d 444, 206 N.W.2d 597.
inatory effect, that he or she has been singled out for prosecution while others simi- A property interest in employment conferred by state law is protected by the due
larly situated have not, and a discriminatory purpose, that the prosecutor’s selection process provisions of both the state and federal constitutions. State ex rel. DeLuca
was based on an impermissible consideration such as race, religion, or other arbi- v. Common Council, 72 Wis. 2d 672, 242 N.W.2d 689.
trary classification. In cases involving solitary prosecutions, a defendant may also The due process standard in juvenile proceedings is fundamental fairness. Basic
show that the government’s discriminatory selection for prosecution is based on a requirements are discussed. In Interest of D.H. 76 Wis. 2d 286, 251 N.W.2d 196.
desire to prevent the exercise of constitutional rights or is motivated by personal A permanent status public employee forfeits due process property interests in a
vindictiveness. State v. Kramer, 2001 WI 132, 248 Wis. 2d 1009, 637 N.W.2d 35, job by accepting an inter−departmental promotion. DH&SS v. State Personnel
99−2580. Board, 84 Wis. 2d 675, 267 N.W.2d 644 (1978).
Wausau’s restaurant smoking ban that provided differential treatment of restau-
If an attorney is permitted to withdraw on the day of trial without notice, due pro-
rants and private clubs did not violate equal protection as there is a rational basis
cess requires granting a continuance. Sherman v. Heiser, 85 Wis. 2d 246, 270
for the differential treatment. Absent the ordinance’s narrow definition of private
N.W.2d 397 (1978).
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 Liberty interests in public employment are discussed. Nufer v. Village Bd. of
the smoking ban by creating the illusion of private clubs. The ordinance’s method Village of Palmyra, 92 Wis. 2d 289, 284 N.W.2d 649 (1979).
of distinguishing private clubs from other restaurants seeks to protect the greatest When a city ordinance specified narrow grounds upon which civil service appli-
number of restaurant patrons while preserving the right to associate in truly private cants may be screened out, an applicant had no right to know the grounds for being
clubs that are not open to the public. City of Wausau v. Jusufi, 2009 WI App 17, screened out. Taplick v. City of Madison Personnel Board, 97 Wis. 2d 162, 293
315 Wis. 2d 780, 763 N.W.2d 201, 08−1107. N.W.2d 173 (1980).
Although counties may charge reasonable fees for the use of facilities in their Due process rights of students at expulsion hearings are discussed. Racine Uni-
county parks, they may not charge such fees only to out−of−state residents while fied School Dist. v. Thompson, 107 Wis. 2d 657, 321 N.W.2d 334 (Ct. App. 1982).
allowing all Wisconsin residents to utilize such facilities free of charge simply Due process was not violated when a defendant was illegally arrested in an asy-
because ORAP or ORAP−200 funds are involved. Such action would create an lum state and involuntarily brought to trial. State v. Monje, 109 Wis. 2d 138, 325
arbitrary and unreasonable distinction based on residence and unconstitutionally N.W.2d 695 (1982).
deny residents of other states equal protection of the laws. 60 Atty. Gen. 18. Due process rights of a tenured professor who was alleged to have resigned were
A requirement that deputy sheriffs and police officers be citizens does not deny not protected by a hearing to determine eligibility for unemployment compensa-
equal protection to resident aliens. 68 Atty. Gen. 61. tion. Patterson v. University Board of Regents, 119 Wis. 2d 570, 350 N.W.2d 612
Classifications by gender must serve important government objectives and must (1984).
be substantially related to achievement of those objectives. Orr v. Orr, 440 U.S. 268 Attributes of property interests protected by due process are discussed. Waste
(1979). Management of Wisconsin v. DNR, 128 Wis. 2d 59, 381 N.W.2d 318 (1986).
A citizenship requirement for public teachers in New York did not violate equal Due process rights of a probationer at a hearing to modify probation are enumer-
protection. Ambach v. Norwick, 441 U.S. 68 (1979). ated. State v. Hayes, 173 Wis. 2d 439, 496 N.W.2d 645 (Ct. App. 1992).
A Massachusetts civil service preference for veterans did not deny equal protec- The tort of intentional denial of due precess is discussed. Old Tuckaway Assoc.
tion to women. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979). v. City of Greenfield, 180 Wis. 2d 254, 509 N.W.2d 323 (Ct. App. 1993).
A worker’s compensation law that required men, but not women, to prove dis- An inmate has a protected liberty interest in earned good−time credits and in not
ability or dependence on a deceased spouse’s earnings violated equal protection. being placed in segregation. Post−deprivation remedies provided by the state are
Wengler v. Druggists Mutual Ins. Co. 446 U.S. 142 (1980). adequate. Irby v. Macht, 184 Wis. 2d 831, 522 N.W.2d 9 (1994).
Racial classification did not violate equal protection clause. Fullilove v. Klutz- A property interest conferred by a statute subsequently amended to make an
nick, 448 U.S. 448 (1980). appointed governmental position at−will is terminated upon the conclusion of the
A statutory rape law applicable only to males had “fair and substantial relation- appointing official’s term of office. Unertl v. Dane County, 190 Wis. 2d 145, 526
ship” to legitimate state ends. Michael M. v. Sonoma County Superior Court, 450 N.W.2d 775 (Ct. App. 1994).
U.S. 464 (1981). A procedural due process claim arises when there is a deprivation of a right with-
A state university open only to women violated equal protection. Mississippi out sufficient process. Generally a predeprivation hearing is required, but when a
University for Women v. Hogan, 458 U.S. 718 (1982). deprivation results from a random act of a state employee, the question becomes
A layoff plan giving preference on the basis of race to accomplish affirmative the adequacy of postdeprivation remedies. Jones v. Dane County, 195 Wis. 2d 892,
action goals was not sufficiently narrowly tailored and, therefore, violated equal 537 N.W.2d 74 (Ct. App. 1995), 92−0946.
protection. Wygant v. Jackson Board of Education, 476 U.S. 267 (1986). Substantive due process requires that the state not deprive its citizens of life, lib-
Strict scrutiny was the proper standard of review for an equal protection chal- erty, or property without due process. Absent a special relationship, it does not
lenge to a California corrections policy of racially segregating prisoners in double impose an affirmative obligation upon the state to ensure the protection of those
cells each time they enter a new correctional facility. All racial classifications rights from a private actor, even when governmental aid may be necessary to secure
imposed by government must be analyzed under strict scrutiny even when they a person’s life, liberty, or property. Jones v. Dane County, 195 Wis. 2d 892, 537
may be said to burden or benefit the races equally. There is no exception to the rule N.W.2d 74 (Ct. App. 1995), 92−0946.
that strict scrutiny applies to all racial classifications in the prison context. Johnson When a prisoner could not show that a period of segregated confinement that
v. California, 543 U.S. 499, 160 L. Ed 2d 2949, 125 S. Ct. 1141 (2004). exceeded the time allowed by rule was not atypical of his prison life generally, there
It is impermissible for a school district to rely upon an individual student’s race was no unconstitutional due process deprivation. The only time factor that courts
in assigning that student to a particular school so that the racial balance at the school will be concerned with in determining a procedural due process deprivation is the
falls within a predetermined range based on the racial composition of the school time the inmate is ultimately required to spend confined under the authority of the
district as a whole. Parents Involved in Community Schools v. Seattle School Dis- state. Chaney v. Renteria, 203 Wis. 2d 310, 554 N.W.2d 503 (Ct. App. 1996),
trict No. 1, 551 U.S. 701, 168 L. Ed. 2d 508, 127 S. Ct. 2738 (2007). 94−2557.
A public employee cannot state a claim under the equal protection clause by Foster children have a constitutional right under the due process clause to safe
alleging that he or she was arbitrarily treated differently from other similarly situ- and secure placement in a foster home. Whether a public official violated that right
ated employees, with no assertion that the different treatment was based on the will be determined based on a professional judgment standard. Kara B. v. Dane
employee’s membership in any particular class. Engquist v. Oregon Department County, 205 Wis. 2d 140, 555 N.W.2d 630 (1996), 94−1081.
of Agriculture, 553 U.S. 591, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008).
An inmate has a constitutionally protected liberty interest in not having his man-
There is no equal protection violation in a state classifying as nonresidents for datory release date extended. Due process is violated in a prison discipline case
tuition purposes persons who are residents for all other purposes. Lister v. Hoover, when guilt is found if there is not “some evidence” that supports the finding of guilt.
655 F.2d 123 (1981). Santiago v. Ware, 205 Wis. 2d 295, 556 N.W.2d 356 (Ct. App. 1996), 95−0079.
The postconviction detention of a person is a violation of equal protection if it A nonlawyer may not sign and file a notice of appeal on behalf of a corporation.
is occasioned by the prisoner’s indigency. Taylor v. Gray, 375 F. Supp. 790. To do so constitutes practicing law without a license in violation of s. 757.30 and
The contrast between the percentage of the black population of a city, 17.2%, and voids the appeal. Requiring a lawyer to file the notice does not violate constitu-
the percentage of black composition of “fixed wage” skilled craft positions avail- tional guarantees of equal protection and due process. Jadair Inc. v. United States
able in the city, 3.1%, evidenced a substantial disparity between the proportion of Fire Insurance Co. 209 Wis. 2d 187, 561 N.W.2d 718 (1997), 95−1946.
minorities in the general population and the proportion in a specific job classifica-
Whether to proceed with civil litigation or to hold it in abeyance while a party
tion and established a prima facie case of unlawful racial discrimination, absent a
is incarcerated depends on the nature of the case, the practical concerns raised by
showing by the city that the statistical discrepancy resulted from causes other than
racial discrimination. Crockett v. Grun, 388 F. Supp. 912. the prisoner’s appearance, and the alternative methods available to provide the pris-
oner with access to the hearing. Schmidt v. Schmidt, 212 Wis. 2d 405, 569 N.W.2d
Civil rights actions against municipalities are discussed. Starstead v. City of 74 (Ct. App. 1997), 96−3699.
Superior, 533 F. Supp. 1365 (1982). The state and federal constitutions provide identical procedural due process and
Zoning—Equal protection. 1976 WLR 234. equal protection safeguards. County of Kenosha v. C. & S. Management, Inc. 223
Equal protection—Sex discrimination. 1976 WLR 330. 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 A statute that required a putative father in a paternity suit to pay for blood tests
that is unconstitutional; it is the deprivation without due process of law. Arneson denied due process to indigent putative fathers. Little v. Streater, 452 U.S. 1 (1981).
v. Jezwinski, 225 Wis. 2d 371, 592 N.W.2d 606 (1999), 97−1867. Due process does not require appointment of counsel for indigent parents in
Substantive due process guarantees protect citizens against arbitrary action of every parental status termination proceeding. Lassiter v. Dept. of Social Services,
government. To violate substantive due process guarantees, a decision must 452 U.S. 18 (1981).
involve more than simple errors in law or an improper exercise of discretion; it must A life prisoner had no due process right to a statement of reasons why the board
shock the conscience. Eternalist Foundation, Inc. v. City of Platteville, 225 Wis. did not commute his life sentence. Connecticut Board of Pardons v. Dumschat, 452
2d 759, 593 N.W.2d 84 (Ct. App. 1999), 98−1944. U.S. 458 (1981).
A criminal proceeding may be conclusive against a 3rd party only if the 3rd party
and criminal defendant have sufficient identity of interest so that in the prior pro- An ordinance regulating the sale of drug paraphernalia was constitutional. Hof-
ceeding the 3rd party had a full opportunity to fairly adjudicate the issues leading fman Estates v. Flipside, Hoffman Estates, 455 U.S. 489 (1982).
to the conviction. If not, the 3rd party’s due process rights would be violated by Revocation of probation for failure to pay a fine, without a determination that the
the application of issue preclusion. Paige K.B. v. Steven G.B. 226 Wis. 2d 210, 594 probationer had not made a bona fide effort to pay or that alternate forms of punish-
N.W.2d 370 (1999), 97−0873. ment did not exist, denied due process and equal protection. Bearden v. Georgia,
A deprivation of the due process right of a fair warning can occur, not only from 461 U.S. 660 (1983).
vague statutory language, but also from unforeseeable and retroactive interpreta- Notice by publication did not satisfy due process requirements in a tax sale.
tion of that statutory language. Elections Board v. Wisconsin Manufacturers & Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983).
Commerce, 227 Wis. 2d 650, 597 N.W.2d 721 (1999), 98−0596. A state’s policy of preserving county boundaries in a reapportionment plan justi-
The retroactive application of a substantive statute must meet the test of due pro- fied a population deviation averaging 13%. Brown v. Thomson, 462 U.S. 835
cess determined by balancing the public interest served by retroactive application (1983).
against the private interests that are overturned. Neiman v. American National A minority set−aside program violated due process. Richmond v. Croson Co.
Property & Casualty Co. 2000 WI 83, 236 Wis. 2d 411, 613 N.W.2d 160, 99−2554. 488 U.S. 469, 102 L. Ed. 2d 854 (1989).
The imposition of liability without fault, even when the statute imposes punitive Abortion restrictions complied with constitutional protections. Webster v.
sanctions, does not in itself violate due process. Statutes that are within the police Reproductive Health Serv. 492 U.S. 490, 106 L. Ed. 2d 410 (1989).
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 Assuming that a competent person has a constitutional right to refuse treatment,
Market, Inc. 2002 WI App 295, 259 Wis. 2d 181, 655 N.W.2d 718, 01−1746. a state may require clear and convincing evidence that an incompetent patient
A parent who has a substantial relationship with his or her child has a fundamen- desired withdrawal of treatment. Cruzan v. Director, Mo. Health Dept. 497 U.S.
tal liberty interest in parenting the child. It is fundamentally unfair to terminate 261, 111 L. Ed. 2d 224 (1990).
parental rights based solely on a parent’s status as a victim of incest. Monroe Substantive due process is not violated by a police officer who causes death
County DHS v. Kelli B. 2004 WI 48, 03−0060. through deliberate or reckless indifference to life in a high speed chase aimed at
The due process clause of the 14th amendment includes the fundamental right apprehending a suspect. Only a purpose to cause harm unrelated to the legitimate
of parents to make decisions concerning the care, custody, and control of their chil- object of arrest satisfies the element of arbitrary conduct shocking to the conscience
dren, including the right to direct the upbringing and education of children under necessary for a due process violation. County of Sacramento v. Lewis, 523 U.S.
their control, but that right is neither absolute nor unqualified. Parents do not have 833, 140 L. Ed. 2d 1043 (1998).
a fundamental right direct how a public school teaches their child or to dictate the In lieu of exclusive reliance on a judge’s personal inquiry into his or her actual
curriculum at the public school to which they have chosen to send their child. Lar- bias, or on appellate review of the judge’s determination respecting actual bias, the
son v. Burmaster, 2006 WI App 142, 295 Wis. 2d 333, 720 N.W.2d 134, 05−1433. due process clause has been implemented by objective standards that do not require
A prisoner has a liberty interest in avoiding forced nutrition and hydration, but proof of actual bias. In defining these standards the U.S. Supreme Court has asked
department of corrections may infringe on the prisoner’s liberty interest by forcing whether, under a realistic appraisal of psychological tendencies and human weak-
him or her to ingest food and fluids against his or her will. A court may enter a tem- ness, the interest poses such a risk of actual bias or prejudgment that the practice
porary ex parte order for involuntarily feeding and hydration, if exigent cir- must be forbidden if the guarantee of due process is to be adequately implemented.
cumstances require immediate involuntary treatment in order to avoid serious harm Caperton v. A. T. Massey Coal Co. 556 U.S. ___, 175 L. Ed. 2d 753, 129 S. Ct. 2252
to or the death of an inmate. Continuation of the order requires the right to an evi- (2009).
dentiary hearing when DOC’s allegations are disputed, the opportunity to meaning- There is a serious risk of actual bias, based on objective and reasonable percep-
fully participate in the evidentiary hearing, and that the order cannot be of indefinite tions, when a person with a personal stake in a particular case had a significant and
or permanent duration without periodic review. Department of Corrections v. disproportionate influence in placing the judge on a case by raising funds or direct-
Saenz, 2007 WI App 25, 299 Wis. 2d 486, 728 N.W.2d 765, 05−2750. ing the judge’s election campaign while the case was pending or imminent. The
Prisoners’ due process rights are discussed. Wolff v. McDonnell, 418 U.S. 539. inquiry centers on the contribution’s relative size in comparison to the total amount
of money contributed to the campaign, the total amount spent in the election, and
Public high school students facing temporary suspension have property and lib- the apparent effect the contribution had on the outcome of the election. Whether
erty interests protected by due process. Goss v. Lopez, 419 U.S. 565. campaign contributions were a necessary and sufficient cause of a judge’s victory
Garnishment of corporate bank accounts must comply with due process protec- is not the proper inquiry. Due process requires an objective inquiry into whether
tions of Fuentes and Sniadach. North Georgia Finishing, Inc. v. Di−Chem, Inc. 419 the contributor’s influence on the election under all the circumstances would offer
U.S. 601. a possible temptation to the average judge to lead the judge not to hold the balance
The Wisconsin medical examining board does not deny due process by both “nice, clear, and true.” Caperton v. A. T. Massey Coal Co. 556 U.S. ___, 175 L.
investigating and adjudicating charge of professional misconduct. Withrow v. Lar- Ed. 2d 753, 129 S. Ct. 2252 (2009).
kin, 421 U.S. 35. It is not a violation of the due process clause to tow an illegally parked car without
States may deny benefits to those who fail to prove they did not quit a job in order first giving the owner notice and opportunity to be heard regarding the lawfulness
to obtain benefits. Lavine v. Milne, 424 U.S. 577. of the towing. Sutton v. City of Milwaukee, 672 F.2d 644 (1982).
Due process does not disqualify an agency as a decision maker merely because A village board’s denial of an application for a liquor license did not deprive the
of familiarity with the facts of a case. Hortonville Dist. v. Hortonville Ed. Asso. applicant of either liberty or property. Scott v. Village of Kewaskum, 786 F.2d 338
426 U.S. 482. (1986).
Dismissal from medical school for academic deficiencies without a hearing did A teacher’s alleged de facto tenure is not a protected property interest. Liberty
not violate the due process clause. Board of Curators, Univ. of Mo. v. Horowitz, interests are discussed. Stevens v. Jt. School Dist. No. 1, Tony, Etc. 429 F. Supp. 477.
435 U.S. 78 (1978). A sheriff violated a tenant’s protectible property interest by executing a stale writ
Utility customers’ due process rights were violated when the utility shut off ser- of restitution. Wolf−Lillie v. Kenosha Cty. Sheriff, 504 F. Supp. 1 (1980).
vice for nonpayment without advising the customers of available administrative One cannot have a constitutionally protected interest solely in a state law proce-
procedures. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978). dure; a separate property interest must also be present. Molgaard v. Town of Cale-
A father’s acquiescence in his daughter’s desire to live with her mother in Cali- donia, 527 F. Supp. 1073 (1981).
fornia did not confer jurisdiction over father in California courts. Kulko v. Califor- Demon rum and the dirty dance: reconsidering government regulation of live sex
nia Superior Court, 436 U.S. 84 (1978). entertainment after California v. La Rue. 1975 WLR 161.
The due process clause was not violated when the IRS monitored a conversation Reasonable corporal punishment by school official over parental objection is
with the defendant in violation of IRS rules. United States v. Caceres, 440 U.S. 741 constitutional. 1976 WLR 689.
(1979).
Procedural due process in public schools: The “thicket” of Goss v. Lopez. 1976
A state may not exercise quasi in rem jurisdiction over a defendant having no WLR 934.
forum contacts by attacking the contractual obligation of the defendant’s insurer
licensed in the state. Rush v. Savchuk, 444 U.S. 320 (1980). Impartial decisionmaker—authority of school board to dismiss striking teachers.
1977 WLR 521.
Involuntary transfer of a prisoner to a mental hospital implicated protected lib-
erty interests. Vitek v. Jones, 445 U.S. 480 (1980). Property interest—government employment—state law defines limitation of
entitlement. 1977 WLR 575.
The termination of appointed assistant public defenders, who were neither poli-
cymakers nor confidential employees, solely on grounds of political affiliation was MISCELLANEOUS
a denial of 1st and 14th amendment rights. Branti v. Finkel, 445 U.S. 507 (1980). An adult bookstore has no right to protect the privacy rights of its customers in
Segregation confinement of a prisoner without prior hearing may violate due a public, commercial establishment. City News & Novelty v. City of Waukesha,
process if postponement of procedural protections is not justified by apprehended 170 Wis. 2d 14, 487 N.W.2d 316 (Ct. App. 1992).
emergency conditions. Hughes v. Rowe, 449 U.S. 5 (1980). A narrowly drawn anti−cruising ordinance did not violate the right to assemble
When an accident involving only Wisconsin residents occurred in Wisconsin, or travel. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 507 N.W.2d 163
the fact that the decedent had been employed in Minnesota conferred jurisdiction (Ct. App. 1993).
on Minnesota courts and Minnesota insurance law was applicable. Allstate Ins. Co. The right to intrastate travel, including the right to move about one’s neighbor-
v. Hague, 449 U.S. 302 (1981). hood in an automobile, is fundamental, but infringements on the right are not sub-
The national democratic party has a protected right of political association and ject to strict scrutiny. Cruising ordinances, reasonable in time, place and manner,
may not be compelled to seat delegates chosen in an open primary in violation of do not violate this right. Brandmiller v. Arreola, 199 Wis. 2d 528, 544 N.W.2d 849
the party’s rules. Democratic Party of U.S. v. Wisconsin, 450 U.S. 107 (1981). (1996), 93−2842.

A father, who intentionally refused to pay child support could, as a condition of closing confidential information. Barnhill v. Board of Regents, 166 Wis. 2d 395,
probation, be required to avoid having another child, unless he showed that he 479 N.W.2d 917 (1992).
could support that child and his current children. In light of the defendant’s ongoing Prison inmates 1st amendment rights are subject to limitation and regulation.
victimization of his children and record manifesting his disregard for the law, this Interception and withholding of inter−inmate correspondence was reasonable.
condition was not overly broad and was reasonably related to the defendant’s reha- Yoder v. Palmeri, 177 Wis. 2d 756, 502 N.W.2d 903 (Ct. App. 1993).
bilitation. State v. Oakley, 2001 WI 103, 245 Wis. 2d 447, 629 N.W.2d 200, Whether a restriction on nude dancing is overbroad depends on whether the ordi-
99−3328. nance is targeted at curbing only harmful secondary effects of exotic clubs. Fond
Banishment from a particular place is not a per se violation of the right to travel. du Lac County v. Mentzel, 195 Wis. 2d 313, 536 N.W.2d 160 (Ct. App. 1995),
There is no exact formula for determining whether a geographic restriction is nar- 94−1924.
rowly tailored. Each case must be analyzed on its own facts, circumstances, and
total atmosphere to determine whether the geographic restriction is narrowly The state’s power to ban the sale of alcoholic beverages under the 21st amend-
drawn. Predick v. O’Connor, 2003 WI App 46, 260 Wis. 2d 323, 660 N.W.2d 1, ment includes the lesser power to ban nude dancing on premises where alcohol is
02−0503. served. Schultz v. City of Cumberland, 195 Wis. 2d 554, 536 N.W.2d 192 (Ct. App.
In order for a putative biological father to have the necessary foundation for a 1995), 94−3106.
constitutionally protected liberty interest in his putative paternity, he would have The restriction of prison inmates free speech rights are discussed. Lomax v.
to have taken affirmative steps to assume his parental responsibilities for the child. Fiedler, 204 Wis. 2d 196, 554 N.W.2d 841 (Ct. App. 1996), 95−2304.
Randy A. J. v. Norma I. J. 2004 WI 41, 270 Wis. 2d 384, 676 N.W.2d 452, 02−0469. A zoning ordinance that did not set aside any area where an adult bookstore
Putative father’s right to custody of his child. 1971 WLR 1262. would be allowed was impermissible. Town of Wayne v. Bishop, 210 Wis. 2d 218,
565 N.W.2d 201 (Ct. App. 1997), 95−2387.
A public nudity ordinance will meet a challenge that it is facially overbroad if
Slavery prohibited. SECTION 2. There shall be neither it is drafted in a manner that addresses the secondary effects of adult entertainment
slavery, nor involuntary servitude in this state, otherwise than without suffocating protected expression in a real and substantial manner. Lounge
for the punishment of crime, whereof the party shall have been Management v. Town of Trenton, 219 Wis. 2d 13, 580 N.W.2d 156 (1998),
96−1853.
duly convicted. Obscenity is, and has been, an abuse of the right to speak freely on all subjects
under the state constitution. The breadth of protection offered by the Wisconsin
Free speech; libel. SECTION 3. Every person may freely constitution in the context of obscenity is no greater than that afforded by the 1st
amendment. County of Kenosha v. C. & S. Management, Inc. 223 Wis. 2d 373, 588
speak, write and publish his sentiments on all subjects, being N.W.2d 236 (1999), 97−0642.
responsible for the abuse of that right, and no laws shall be It may be appropriate to consider context in determining whether a communica-
passed to restrain or abridge the liberty of speech or of the press. tion “expressly advocates” the election, defeat, recall, or retention of a clearly iden-
tified candidate or a particular vote at a referendum, within the meaning of s. 11.01
In all criminal prosecutions or indictments for libel, the truth (16) (a) 1. Elections Board v. Wisconsin Manufacturers & Commerce, 227 Wis.
may be given in evidence, and if it shall appear to the jury that 2d 650, 597 N.W.2d 721 (1999), 98−0596.
the matter charged as libelous be true, and was published with When an ordinance regulates 1st amendment activities, the government nor-
mally has the burden of defending the regulation beyond a reasonable doubt, but
good motives and for justifiable ends, the party shall be when prior restraints are concerned and the government action at issue is the review
acquitted; and the jury shall have the right to determine the law of an applicant’s qualifications for a business license, the city does not bear the bur-
and the fact. den of going to court to effect the denial of a license, nor does it bear the burden
of proof once in court. City News & Novelty, Inc. v. City of Waukesha, 231 Wis.
FREE SPEECH 2d 93, 604 N.W.2d 870 (Ct. App. 1999), 97−1504.
A city can validly prohibit picketing private homes when the subject of the pick- Unfiled pretrial materials in a civil action between private parties are not public
eting has no relationship to any activity carried on there. Wauwatosa v. King, 49 records and neither the public nor the press has either a common law or constitu-
Wis. 2d 398, 182 N.W.2d 530. tional right of access to those materials. State ex rel. Mitsubishi v. Milwaukee
A journalist has a constitutional right to the privilege not to disclose sources of County, 2000 WI 16, 233 Wis. 2d 1, 605 N.W.2d 868, 99−2810.
information received in a confidential relationship, but when such confidence is in A town ordinance prohibiting nudity on premises operating under a retail Class
conflict with the public’s overriding need to know, it must yield to the interest of B liquor license was constitutional under Erie, 146 L. Ed. 2d. 265. Urmanski v.
justice. The state need not affirmatively demonstrate proof of compelling need or Town of Bradley, 2000 WI App 141, 237 Wis. 2d 545, 613 N.W.2d 905, 99−2330.
lack of an alternative method of obtaining the information sought when the crimes Only a “true threat” is punishable under statutes criminalizing threats. A true
involved and the prevention of repetition of those crimes constitute a compelling threat is a statement that a speaker would reasonably foresee that a listener would
need. State v. Knops, 49 Wis. 2d 647, 183 N.W.2d 93. reasonably interpret as a serious expression of a purpose to inflict harm, as distin-
Only that portion of an obscenity ordinance defining obscenity in Roth−Memoirs guished from hyperbole, jest, innocuous talk, expressions of political views, or
terms is unconstitutional, and the remainder is a viable, effective ordinance when other similarly protected speech. It is not necessary that the speaker have the ability
supplemented by the supreme court’s Chobot obscenity definition “community to carry out the threat. State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d
standards” definition. Madison v. Nickel, 66 Wis. 2d 71, 223 N.W.2d 865. 762, 99−1924.
The majority representative’s exclusive right to represent all employees in a bar- Application of the disorderly conduct statute to speech alone is permissible
gaining unit precludes speech by others in the form of bargaining or negotiating for under appropriate circumstances. When speech is not an essential part of any
a labor agreement, but the infringement on speech is justified by the necessity to exposition of ideas, when it is utterly devoid of social value, and when it can cause
avoid the dangers attendant upon relative chaos in labor−management relations. or provoke a disturbance, the disorderly conduct statute can be applicable. State
Madison Joint School District No. 8 v. WERC, 69 Wis. 2d 200, 231 N.W.2d 206. v. A.S., 2001 WI 48, 243 Wis. 2d 173, 626 N.W.2d 712, 99−2317.
Prohibiting the solicitation of prostitutes does not violate the right of free speech. Purely written speech, even if it fails to cause an actual disturbance, can consti-
Shillcutt v. State, 74 Wis. 2d 642, 247 N.W.2d 694. tute disorderly conduct, but the state has the burden to prove that the speech is con-
stitutionally unprotected “abusive” conduct. “Abusive” conduct is conduct that is
When a radio talk show announcer was fired for allowing talk show guests to injurious, improper, hurtful, offensive, or reproachful. True threats clearly fall
slander minorities, the announcer’s right of free speech was not infringed. Augus- within the scope of this definition. State v. Douglas D. 2001 WI 47, 243 Wis. 2d
tine v. Anti−Defamation Lg. B’nai B’rith, 75 Wis. 2d 207, 249 N.W.2d 547. 204, 626 N.W.2d 725, 99−1767.
When the record did not indicate that a tenant union provided inadequate, unethi- Although the 1st amendment prohibits law enforcement officials from prosecut-
cal, or complex legal advice to tenants, the tenant union’s information service was ing protected speech, it does not necessarily follow that schools may not discipline
protected by free speech guarantees. Hopper v. Madison, 79 Wis. 2d 120, 256 students for such speech. Like law enforcement officials, educators may not punish
N.W.2d 139. students merely for expressing unpopular viewpoints, but the 1st amendment must
The public’s right to be aware of all facts surrounding an issue does not interfere be applied in light of the special characteristics of the school environment. Schools
with the right of a newspaper to reject advertising. Wis. Assoc. of Nursing Homes may limit or discipline conduct that for any reason materially disrupts classwork
v. Journal Co. 92 Wis. 2d 709, 285 N.W.2d 891 (Ct. App. 1979). or involves substantial disorder or invasion of the rights of others. State v. Douglas
Procedures to determine whether a journalist may properly invoke privilege to D. 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, 99−1767.
prevent disclosure of confidential sources set. Green Bay Newspaper v. Circuit A county public assembly ordinance that contained a 60−day advance filing
Court, 113 Wis. 2d 411, 335 N.W.2d 367 (1983). requirement, a 45−day processing time period, a prohibition against advertising,
The right of free speech applies against state action, not private action. Jacobs promoting, and selling tickets before a license was issued, a required certification
v. Major, 139 Wis. 2d 492, 407 N.W.2d 832 (1987). by the zoning administrator, and a license fee in excess of $100 per application was
News gatherers have no constitutional right of access to disaster scenes beyond not narrowly tailored to achieve a significant government interest and violated the
that accorded the general public. City of Oak Creek v. King, 148 Wis. 2d 532, 436 1st amendment free speech guarantee. Sauk County v. Gumz, 2003 WI App 165,
N.W.2d 285 (1989). 266 Wis. 2d 758, 669 N.W.2d 509, 02−0204.
Commercial speech is protected by the 1st amendment. The government must The exception to protection for “true threats” is not limited to threats directed
show a restriction directly advances a substantial interest for it to be constitutional. only at a person or group of individuals, nor is it limited to a threat of bodily harm
City of Milwaukee v. Blondis, 157 Wis. 2d 730, 460 N.W.2d 815 (Ct. App. 1990). or death. State v. Robert T. 2008 WI App 22, 307 Wis. 2d 488, 746 N.W.2d 564,
06−2206.
A sentence based on an activity protected by the 1st amendment is constitution-
ally invalid, but when a sufficient link to criminal activity is shown, the activity is Free speech and the state’s campaign finance law are discussed in light of Buck-
no longer protected. State v. J.E.B. 161 Wis. 2d 655, 469 N.W.2d 192 (Ct. App. ley v. Valeo. 65 Atty. Gen. 145.
1991). Car card space on a city transit system is not a free speech forum. Lehman v. City
Although music is accorded a presumption of being protected speech, an ordi- of Shaker Heights, 418 U.S. 298.
nance prohibiting all unreasonable noise was not an unconstitutionally vague A flag misuse statute was unconstitutional as applied to a flag hung upside down
encroachment on free speech. City of Madison v. Bauman, 162 Wis. 2d 660, 470 with a peace symbol affixed when the context imbued the display with protected
N.W.2d 296 (1991). elements of communication. Spence v. State of Washington, 418 U.S. 405.
An employee’s free speech rights were not violated when the employer’s need Commercial advertising is protected free speech. Bigelow v. Virginia, 421 U.S.
for confidentiality and discipline clearly outweighed the employee’s interest in dis- 809.

Campaign expenditure limitations unduly restrict political expression. Con- Press freedom does not confer a constitutional right to disregard promises that
tribution limits impose serious burdens on free speech only if they are so low as to would otherwise be enforceable under state law. A possible promissory estoppel
prevent candidates and political committees from amassing the resources neces- action for breaching an agreement to keep a source confidential was not barred.
sary for effective advocacy, Buckley v. Valeo, 424 U.S. 1. See also McConnell v. Cohen v. Cowles Media Co., 501 U.S. 663, 115 L. Ed. 2d 586 (1991).
Federal Elections Commission, 540 U.S. 93, 157 L. E. 2d 491, 124 S. Ct. 619 A county ordinance requiring a permit for all parades and public assemblies that
(2003) (Reversed in part by Citizens United), Randall v. Sorrell, 548 U.S. 230, 165 gave the county administrator power to adjust permit fees to meet police expenses
L. Ed. 2d 482, 126 S. Ct. 2479 (2006). Federal Election Commission v. Wisconsin incident to the assembly violated the 1st amendment as being an impermissible
Right to Life, Inc. 551 U.S. ___, 168 L. Ed. 2d 329, 127 S. Ct. 2652 (2007). assessment of the permittee’s speech content was required to determine the expen-
Prior restraint of news media to limit pretrial publicity is discussed. Nebraska ses to be incurred in maintaining order at the assembly. Forsyth County v. National-
Press Asso. v. Stuart, 427 U.S. 539. ist Movement, 505 U.S. 123, 120 L. Ed. 2d 101 (1992).
A board of education may not prevent a non−union teacher from speaking of a Exclusion of “fighting words” from free speech protections did not justify a city
bargaining issue at an open meeting. Madison School District v. Wisconsin ordinance banning displays that convey messages of racial, gender, or religious
Employment Commission, 429 U.S. 167. intolerance. A city may not selectively ban fighting words based on the particular
Corporations’ free speech rights are discussed. First National Bank of Boston idea expressed. R.A.V. v. St. Paul, 505 U.S. 377, 120 L. Ed. 2d 305 (1992).
v. Bellotti, 435 U.S. 765 (1978). A city ban on newsracks for commercial publications violated the right to free
The 1st amendment prohibited the prosecution of a newspaper for publishing speech when the city failed to establish a “reasonable fit” between its legitimate
confidential proceedings of a commission investigating judicial conduct. Land- interest in safety and aesthetics and the ban. Cincinnati v. Discovery Network, 507
mark Communications, Inc. v. Virginia, 435 U.S. 829 (1978). U.S. 410, 123 L. Ed. 2d 99 (1993).
Collective activity undertaken to obtain meaningful access to courts is a funda- Denial of the use of a school building to a church seeking to exhibit a film when
mental right protected by the 1st amendment. In re Primus, 436 U.S. 412 (1978). a nonsectarian group would have been allowed the use of the building to show a
A newspaper office may be searched for evidence of a crime even though the secular film on the same topic violated the right of free speech. Lamb’s Chapel v.
newspaper is not suspected of a crime. Zurcher v. Stanford Daily, 436 U.S. 547 Center Moriches, 508 U.S. 34, 124 L. Ed. 2d 352 (1993).
(1978). For a government employee’s speech to be protected, the speech must be on a
The 1st amendment does not guarantee the public’s or media’s right of access to matter of public concern and the employee’s interest in expressing himself or her-
sources of information within government control. Houchins v. KQED, Inc. 438 self on the matter must outweigh the injury the speech could cause the employer
U.S. 1 (1978). in providing public services through its employees. Waters v. Churchill, 511 U.S.
661, 128 L. Ed. 2d 686 (1994). See also Burkes v. Klauser, 185 Wis. 2d 309, 517
Public employee private, as well as public, speech is protected. Givhan v. West- N.W.2d 502 (1994).
ern Line Consol. School Dist. 439 U.S. 410 (1979).
A city’s ban on almost all residential signs violated the right of free speech. City
The press and public have no constitutional right to attend a pretrial suppression of LaDue v. Gilleo, 512 U.S. 26, 129 L. Ed. 2d 22 (1994).
hearing when the defendant demands a closed hearing to avoid prejudicial public-
ity. Gannett Co. v. DePasquale, 443 U.S. 368 (1979). An Ohio statute prohibiting the distribution of anonymous campaign literature
violated the right of free speech. McIntyre v. Ohio Elections Commission, 514 U.S.
A public utility had the free speech right to enclose with bills inserts discussing 334, 131 L. Ed. 2d 426 (1995).
controversial issues of public policy. Consolidated Edison v. Public Service Com-
mission, 447 U.S. 530 (1980). The selection of the makeup a parade is entitled to free speech protection. A
parade sponsor’s free speech rights include the right to deny a group’s participation
For restrictions on commercial speech to stand a constitutional challenge, the who intends to convey a message contrary to the sponsor’s. Hurley v. Irish−Ameri-
restriction must not be more extensive than is necessary to serve the government’s can Gay Group, 515 U.S. 557, 132 L. Ed. 2d 487 (1995).
interests. Central Hudson Gas v. Public Service Commission of New York, 447
U.S. 557 (1980). A state university that funded printing a broad range of student publications but
denied funding for a student religious group’s publication violated free speech
An ordinance prohibiting a live dancing exhibition violated the free speech guarantees and was not excused by the need to comply with the establishment of
clause. Schad v. Mount Ephraim, 452 U.S. 61 (1981). religion clause. Rosenberger v. University of Virginia, 515 U.S. 819, 132 L. Ed.
A statute prohibiting nude dancing in establishments licensed by a state to sell 2d (1995).
liquor was valid under the 21st amendment. New York State Liquor Authority v. As with government employees whose employment may not be terminated for
Bellanca, 452 U.S. 714 (1981). exercising 1st amendment rights, independent contractors may not have their gov-
A statute that prohibits placing unstamped mailable matter in any box approved ernment contracts terminated for refusing to support a political party or its candi-
by the U.S. postal service does not violate the free speech clause. U.S. Postal Ser- dates or for exercising free speech rights. Board of County Commissioners v.
vice v. Greenburgh Civic Assn. 453 U.S. 114 (1981). Umbehr, 518 U.S. 668, 135 L. Ed. 2d 843 (1996) and O’Hare Truck Service v.
An ordinance that placed substantial restrictions on billboards other than those Northlake, 518 U.S. 712, 135 L. Ed. 2d 874 (1996).
used for onsite commercial advertising violated the free speech clause. Metrome- The constitutionality of injunctions restraining actions by abortion clinic protest-
dia v. San Diego, 453 U.S. 490 (1981). ers is discussed. Schenck v. Pro−Choice Network, 519 U.S. 357, 137 L. Ed. 2d 1
A public university that provided a forum to many student groups but excluded (1997).
religious student groups violated the principle that state regulation of speech should Assessments against commodity producers under an agricultural marketing
be content neutral. Widmar v. Vincent, 454 U.S. 263 (1981). order to pay for the costs of generic advertising did not violate the producer’s free
An ordinance regulating the sale of drug paraphernalia was constitutional. Hof- speech rights. Glickaman v. Wileman Brothers & Elliot, Inc. 521 U.S. 457, 138 L.
fman Estates v. Flipside, Hoffman Estates, 455 U.S. 489 (1982). Ed. 2d 585 (1997).
There are constitutional limits on the state’s power to prohibit candidates from A public broadcasting network’s decision to exclude an independent candidate
making promises in the course of an election campaign. Some promises are univer- who had little public support was a permissible exercise of journalistic discretion.
sally acknowledged as legitimate, indeed indispensable to decisionmaking in a Arkansas Educational TV v. Forbes, 523 U.S. 666, 140 L. Ed. 2d 875 (1998).
democracy. Brown v. Hartlage, 456 U.S. 45 (1982). It is a violation of the 4th amendment for police to bring members of the media
A school board’s discretion to determine the contents of school libraries may not or other 3rd persons into a home during the execution of a warrant when the pres-
be exercised in a narrowly partisan or political manner. Board of Education v. Pico, ence of the 3rd persons in the home is not in aid of the execution of the warrant.
457 U.S. 853 (1982). Wilson v. Layne, 526 U.S. 603, 143 L. Ed. 2d 818 (1999).
States are entitled to greater leeway in the regulation of pornographic depictions The financing of student organizations through mandatory student fees does not
of children. New York v. Ferber, 458 U.S. 747 (1982). violate the 1st amendment if viewpoint neutrality is the operational principal.
Board of Regents v. Southworth, 529 U.S. 217, 146 L. Ed. 2d 193 (2000).
The discharge of public employee did not deny free speech rights, under the facts An ordinance prohibiting public nudity was valid when the government’s
of the case. Connick v. Myers, 461 U.S. 138 (1983). asserted interest was combating the secondary effect associated with adult enter-
A sidewalk is a “public forum”. The prohibition of leaflets denied free speech. tainment and was unrelated to suppression of the erotic message of nude dancing.
U.S. v. Grace, 461 U.S. 171 (1983). Erie v. Pap’s A.M. 529 U.S. 277, 146 L. Ed. 2d 265 (2000).
The government’s substantial interest in maintaining the park in the heart of the A statute that makes it unlawful within regulated areas for any person to “know-
capital in an attractive condition sustained a regulation against camping or over- ingly approach” within eight feet of another person, without that person’s consent,
night sleeping in public parks. Free speech was not denied. Clark v. Community “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging
for Creative Non−violence, 468 U.S. 288 (1984). in oral protest, education, or counseling with such other person” is constitutional.
A school district did not violate the free speech clause by disciplining a student Hill v. Colorado, 530 U.S. 703, 147 L. Ed. 2d 597 (2000)
for giving an offensively lewd and indecent speech at a school assembly. Bethel Inmate to inmate correspondence that includes legal assistance does not receive
School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986). more 1st amendment protection than other correspondence. Shaw v. Murphy, 532
School administrators may exercise control over style and content of student U.S. 223, 149 LEd 2d 420 (2001).
speech in school−sponsored activities as long as control is reasonably related to The 1st amendment protects speech that discloses the content of an illegally
“legitimate pedagogical concerns.” Hazelwood School District v. Kuhlmeier, 484 intercepted telephone call when that speech was by a person not a party to the inter-
U.S. 260 (1988). ception. Bartnicki v. Vopper, 532 U.S. 514, 149 L. Ed. 2d 787 (2001).
A state may not categorically ban targeted, direct−mail advertising by attorneys. Speech discussing otherwise permissible subjects cannot be excluded from a
Shapero v. Kentucky Bar Assn. 486 U.S. 466 (1988). limited public forum, such as a school, on the grounds that it is discussed from a
A Brookfield ordinance prohibiting picketing of individuals’ residences was not religious viewpoint. A club’s meetings, held after school, not sponsored by the
facially invalid. Frisby v. Schultz, 487 U.S. 474 (1988). school, and open to to any student who obtained parental consent, did not raise an
establishment of religion violation that could be raised to justify content−based dis-
A protester’s conviction for flag desecration violated the right of free speech. crimination against the club. Good News Club v. Milford Central School, 533 U.S.
Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342 (1989). 98, 150 L. Ed. 2d 151 (2001).
The 1st amendment prohibits employment decisions concerning low−level pub- A village ordinance making it a misdemeanor to engage in door−to−door advo-
lic employees to be based upon political patronage. Rutan v. Republican Party of cacy without first registering with the village and obtaining a permit violated the
Illinois, 497 U.S. 62, 111 L. Ed. 2d 52 (1990). 1st amendment. Watchtower Bible and Tract Society of New York, Inc. v. Village
A public indecency statute barring public nudity and requiring dancers to wear of Stratton, 536 U.S. 150, 153 L. Ed. 2d 205 (2002).
pasties and G−strings did not violate the right of free expression. Barnes v. Glen A state, consistent with the 1st amendment, may ban cross burning carried out
Theatre, Inc. 501 U.S. 560, 115 L. Ed. 2d 504 (1991). with the intent to intimidate, but a Virginia statute treating any cross burning as

prima facie evidence of intent to intimidate was unconstitutional. Instead of pro- without interference from disloyal employees. Pleva v. Norquist, 195 F.3d 905
hibiting all intimidating messages, a state may choose to regulate this subset of (1999).
intimidating messages in light of cross burnings’ long and pernicious history as a With one exception, the university’s system, as required by Southworth, for dis-
signal of impending violence. Virginia v. Black, 538 U.S. 343, 155 L. E. 2d 535, tributing compelled fees collected from university students to student groups that
123 S. Ct. 1536 (2003). delegates funding decisions to the student government was subject to sufficient
Regulation of charitable subscriptions, barring fees in excess of a prescribed limits. Southworth v. Board of Regents of the University of Wisconsin System, 307
level, effectively imposes prior restraints on fundraising, and is incompatible with F.3d 566 (2002).
the 1st amendment. However, any and all reliance on the percentage of charitable A regulation prohibiting the sale of liquor on the premises of adult entertainment
donations fundraisers retain for themselves is not prohibited. While bare failure to establishments is constitutional if: 1) the state is regulating pursuant to a legitimate
disclose that information to potential donors does not establish fraud, when nondis- governmental power; 2) the regulation does not completely prohibit adult enter-
closure is accompanied by intentionally misleading statements designed to deceive tainment; 3) the regulation is aimed at combating the negative effects caused by the
the listener, a fraud claim is permissible. Illinois v. Telemarketing Associates, Inc. establishments, not the suppression of expression; 4) the regulation is designed to
538 U.S. 600, 155 L. Ed. 2d 793, 123 S. Ct. 1829 (2003). serve a substantial governmental interest, is narrowly tailored, and reasonable ave-
The 1st amendment requires that an adult business licensing scheme assure nues of communication remain; or alternatively the regulation furthers substantial
prompt judicial review of an administrative decision denying a license. An ordi- governmental interests and the restriction is no greater than is essential to further
nance providing that the city’s final decision may be appealed to state court pur- that interest. Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702 (2003).
suant to state rules of civil procedure did not violate the 1st amendment. City of The dividing line between publications that may be denied to prisoners and those
Littleton v. Z. J. Gifts D−4, L. L. C, 541 U.S. 774, 159 L. Ed 2d 84, 124 S. Ct. 2219 that may not is not a matter of administrative grace, but of constitutional right.
(2004). Gaugh v. Schmidt, 369 F. Supp. 877.
Government employees do not relinquish all 1st amendment rights enjoyed by A town board was restrained from discharging its police chief until the issue of
citizens by reason of their employment, but a governmental employer may impose impermissible consideration of the chief’s political activities was resolved. Kuhl-
certain restraints on speech of its employees that would be unconstitutional if mann v. Bloomfield Township 521 F. Supp. 1242 (1981).
applied to the general public. Employees have rights to speak on matters of public
concern. When government employees speak or write on their own time on topics Content neutral size restrictions placed on a banner proclaiming “Church/State —
unrelated to their employment, the speech can have protection, absent some gov- Separate,” after it was hung in the state capitol rotunda, served the state’s significant
ernmental justification far stronger than mere speculation in regulating it. San interest in protecting the capitol from visual degradation. That a Christmas tree and
Diego v. Roe, 543 U.S. 77, 160 L. Ed 2d 410, 125 S. Ct. 521 (2004). Menorah in the rotunda were allowed to remain without restriction did not prove
content based discrimination. Gaylor v. Thompson, 939 F. Supp. 1363 (1996).
When public employees make statements pursuant to their official duties, the Although the first amendment establishment clause of the U.S. constitution nei-
employees are not speaking as citizens for 1st amendment purposes, and the consti- ther compels nor authorizes the University to categorically exclude funding of
tution does not insulate their communications from employer discipline. Restrict- activities related to worship, proselytizing, and sectarian religious instruction with
ing speech that owes its existence to a public employee’s professional responsibili- segregated fees, the University may nevertheless be able to exclude some or all of
ties does not infringe any liberties the employee might have enjoyed as a private the activities to which it objects. The University is free to enact viewpoint neutral
citizen. It simply reflects the exercise of employer control over what the employer rules restricting access to segregated fees, for it may create what is tantamount to
itself has commissioned or created. Garcetti v. Ceballos, 547 U.S. 410, 164 L. Ed. a limited public forum if the principles of viewpoint neutrality are respected. How-
2d 689, 126 S. Ct. 1951 (2006). ever, before excluding an activity from the segregated fee forum pursuant to a con-
Schools may take steps to safeguard those entrusted to their care from speech that tent−based distinction, the University must explain specifically why that particular
can reasonably be regarded as encouraging illegal drug use. School officials did activity, viewed as a whole, is outside the forum’s purposes. Roman Catholic
not violate the 1st amendment by confiscating a pro−drug banner and suspending Foundation v. The Regents of the University of Wisconsin System, 578 F. Supp. 2d
the student responsible for it. Morse v. Frederick, 551 U.S. 393, 168 L. Ed. 2d 290, 1121. Affirmed. 620 F.3d 775 (2010).
127 S. Ct. 2618 (2007). Behind the Curtain of Privacy: How Obscenity Law Inhibits the Expression of
Enforcement of a rule adopted by a statewide membership corporation organized Ideas About Sex and Gender. Peterson. 1998 WLR 625.
to regulate interscholastic sports among its members that prohibited high school Testimonial privilege of newsmen. Baxter, 55 MLR 184.
coaches from recruiting middle school athletes did not violates the 1st amendment.
There is a difference of constitutional dimension between rules prohibiting appeals Academic freedom; some tentative guidelines. Keith, 55 MLR 379.
to the public at large and rules prohibiting direct, personalized communication in Protection of commercial speech. 60 MLR 138.
a coercive setting. Bans on direct solicitations are more akin to a conduct regulation Zurcher: third party searches and freedom of the press. Cantrell. 62 MLR 35
than a speech restriction, but restrictions are limited to conduct that is inherently (1978).
conducive to overreaching and other forms of misconduct. Tennessee Secondary A newspaper cannot constitutionally be compelled to publish a paid advertise-
School Athletic Association v. Brentwood Academy, 551 U.S. 291, 168 L. Ed. 2d ment designed to be an editorial response to previous newspaper reports. 64 MLR
166, 127 S. Ct. 2489 (2007). 361 (1980).
Offers to provide or requests to obtain child pornography are categorically Granting access to private shopping center property for free speech purposes on
excluded from the 1st amendment. Offers to deal in illegal products or otherwise the basis of a state constitutional provision does not violate owner’s federal consti-
engage in illegal activity do not acquire 1st amendment protection when the offeror tutional property rights or first amendment free speech rights. 64 MLR 507 (1981).
is mistaken about the factual predicate of his or her offer. Impossibility of complet- First amendment and freedom of press: A revised approach to marketplace of
ing the crime because the facts were not as the defendant believed is not a defense. ideas concept. Gary. 72 MLR 187 (1989).
U.S. v. Williams, 553 U.S. 285, 128 S. Ct. 1830; 170 L. Ed. 2d 650 (2008). Architectural Appearances Ordinances and the 1st Amendment. Rice. 76 MLR
The free speech clause of the first amendment restricts government regulation 439 (1992).
of private speech; it does not regulate government speech. Although a park is a
traditional public forum for speeches and other transitory expressive acts, the dis- Hate Crimes: New Limits on the Scope of the 1st Amendment. Resler. 77 MLR
play of a permanent monument in a public park is not a form of expression to which 415 (1994).
forum analysis applies. Instead, the placement of a permanent monument in a pub- Improving the Odds of the Central Balancing Test; Restricting Commercial
lic park is best viewed as a form of government speech and is therefore not subject Speech as a Last Resort. Gulling. 81 MLR 873 (1998).
to scrutiny under the free speech clause of the first amendment. Pleasant Grove Researcher−subject testimonial privilege. Newels and Lehman, 1971 WLR
City, Utah v. Summum, 555 U.S. ___, 129 S. Ct. 1125, 1135, 172 L. Ed. 2d 853, 1085.
865 (2009). Freedom of speech, expression and action. Hilmes, 1971 WLR 1209.
The government may regulate corporate political speech through disclaimer and Free speech on premises of privately owned shopping center. Felsenthal, 1973
disclosure requirements, but it may not suppress that speech altogether. Federal WLR 612.
law prohibiting corporations and unions from using their general treasury funds to Constitutional protection of critical speech and the public figure doctrine:
make independent expenditures for speech defined as an “electioneering commu- Retreat by reaffirmation. 1980 WLR 568.
nication” or for speech expressly advocating the election or defeat of a candidate Corporate “persons” and freedom of speech: The political impact of legal
is unconstitutional. Citizens United v. Federal Election Commission, 558 U.S. mythology. Payton and Bartlett, 1981 WLR 494.
___,130 S. Ct. 876, 175 L. Ed. 2d 753 (2010). Lamb’s Chapel v. Center Mortices Union Free School District: Creating Greater
While the prohibition of animal cruelty itself has a long history in American law, Protection Religious Speech Through the Illusion of Public Forum Analysis. Ehr-
depictions of animal cruelty are not outside the reach of the first amendment alto- mann. 1994 WLR 965.
gether. The guarantee of free speech does not extend only to categories of speech
that survive an ad hoc balancing of relative social costs and benefits. The first The Journalist’s Privilege. Kassel. Wis. Law. Feb. 1996.
amendment itself reflects a judgment by the American people that the benefits of The Price of Free Speech: Regents v. Southworth. Furlow. Wis. Law. June 2000.
its restrictions on the government outweigh the costs. The constitution forecloses LIBEL
any attempt to revise that judgment simply on the basis that some speech is not The burden of proof and determination of damages in libel cases is discussed.
worth it. United States v. Stevens, 559 U.S. ___, 130 S. Ct. 1577, 176 L. Ed. 2d Dalton v. Meister, 52 Wis. 2d 173, 188 N.W.2d 494.
435 (2010). In a libel action involving a public figure or a matter of public concern, the defen-
A public university may condition its official recognition of a student group, and dant is entitled to the “clear and convincing” burden of proof and also to a finding
the attendant use of school funds and facilities, on the organization’s agreement to of the type of malice involved. Polzin v. Helmbrecht, 54 Wis. 2d 578, 196 N.W.2d
open eligibility for membership and leadership to all students. In requiring a stu- 685.
dent religious group, in common with all other student organizations, to choose
between welcoming all students and forgoing the benefits of official recognition, In determining punitive damages in libel cases, it is relevant to consider the max-
a school did not transgress constitutional limitations. The first amendment shields imum fine for a similar offense under the criminal code. Wozniak v. Local 1111
groups against state prohibition of the organization’s expressive activity, however of UE, 57 Wis. 2d 725, 205 N.W.2d 369.
exclusionary that activity may be, but a group enjoys no constitutional right to state The executive committee of the medical staff of a private hospital is not a quasi−
subvention of its selectivity. Christian Legal Society Chapter of Univ. of Califor- judicial body so as to render a letter to it privileged. DiMiceli v. Klieger, 58 Wis.
nia, Hastings College of Law v. Martinez, 561 U. S. ___, 130 S. Ct. 2971, ___ L. 2d 359, 206 N.W.2d 184.
Ed. 2d ___ (2010). “Public figure” is defined. The constitutional protections of news media and
Generally, the 1st amendment protects a person from being removed from public individual defamers are discussed. Denny v. Mertz, 106 Wis. 2d 636, 318 N.W.2d
employment for purely political reasons. However, exemptions from the patronage 141 (1982).
dismissal ban are allowed on the theory that a newly elected administration has a A private citizen may become a public figure regarding a particular issue that is
legitimate interest in implementing the broad policies it was elected to implement of substantial public interest and must prove actual malice to prevail in a libel

action. Weigel v. Capital Times Co. 145 Wis. 2d 71, 426 N.W.2d 43 (Ct. App. ties in all cases in the manner prescribed by law. Provided, how-
1988).
Judicial or quasi−judicial proceedings are protected by absolute privilege, sub-
ever, that the legislature may, from time to time, by statute pro-
ject to 2 restrictions: 1) the statement must be in a procedural context recognized vide that a valid verdict, in civil cases, may be based on the votes
as privileged; and 2) it must be relevant to the matter under consideration. Rady of a specified number of the jury, not less than five−sixths
v. Lutz, 150 Wis. 2d 643, 444 N.W.2d 58 (Ct. App. 1989). thereof. [1919 J.R. 58; 1921 J.R. 17 A; 1921 c. 504; vote Nov.
A fire department captain with considerable power and discretion is a public offi-
cial who must meet the malice requirement. Defendant firefighters had a common 1922]
law privilege to comment in writing on the captain’s fitness for office. Miller v. Note: See also the notes to Article I, Section 7—Jury Trial and Juror Quali-
Minority Brotherhood, 158 Wis. 2d 589, 463 N.W.2d 690 (Ct. App. 1990). fications for notes relating to jury trials in criminal cases.
If a defamation plaintiff is a public figure, there must be proof of actual malice. When a juror is struck after the trial has commenced, a litigant cannot be required
The deliberate choice of one interpretation of a number of possible interpretations to proceed with 11 jurors in a civil case. The trial court must declare a mistrial or
does not create a jury issue of actual malice. The selective destruction by a defend- grant a nonsuit with the right to plead over. It was error to grant a nonsuit and then
ant of materials likely to be relevant to defamation litigation allows an inference direct a verdict for the defendant because a plaintiff refused to continue with 11
that the materials would have provided evidence of actual malice. Torgerson v. jurors. State ex rel. Polk v. Johnson, 47 Wis. 2d 207, 177 N.W.2d 122.
Journal/Sentinel, Inc. 210 Wis. 2d 524, 563 N.W.2d 472 (1997), 95−1098. Neither the constitution, statutes, or common law affords the right to trial by jury
For purposes of libel law, a “public figure” who must prove malice includes a in a will contest. Estate of Elvers, 48 Wis. 2d 17, 179 N.W.2d 881.
person who by being drawn into or interjecting himself or herself into a public con- The requirement that a defendant prepay jury fees in a civil traffic forfeiture
troversy becomes a public figure for a limited purpose because of involvement in action is constitutional. State v. Graf, 72 Wis. 2d 179, 240 N.W.2d 387.
the particular controversy, which status can be created without purposeful or volun-
tary conduct by the individual involved. Erdmann v. SF Broadcasting of Green Requiring the payment of a jury fee did not violate the right to a trial by jury.
Bay, Inc. 229 Wis. 2d 156, 599 N.W.2d 1 (Ct. App. 1999), 98−2660. County of Portage v. Steinpreis, 104 Wis. 2d 466, 312 N.W.2d 731 (1981).
A “public dispute” is not simply a matter of interest to the public. It must be a The right to 12−member jury can only be waived personally by the defendant.
real dispute, the outcome of which affects the general public in an appreciable way. State v. Cooley, 105 Wis. 2d 642, 315 N.W.2d 369 (Ct. App. 1981).
Essentially private concerns do not become public controversies because they The right to a jury trial does not extend to equitable actions. However defendants
attract attention; its ramifications must be felt by persons who are not direct partici- who are required to plead legal counterclaims in equitable actions or lose those
pants. Maguire v. Journal Sentinel, Inc. 2000 WI App 4, 232 Wis. 2d 236, 605 claims are entitled to a jury trial of their claims. Green Spring Farms v. Spring
N.W.2d 881, 97−3675. Green Farms, 172 Wis. 2d 28, 492 N.W.2d 392 (Ct. App. 1992).
In defamation cases, circuit courts should ordinarily decide a pending motion to Use of collateral estoppel to prevent a civil defendant from testifying that he did
dismiss for failure to state a claim before sanctioning a party for refusing to disclose not commit an act when in an earlier criminal trial the defendant was convicted by
information that would identify otherwise−anonymous members of an organiza- a jury of committing the act did not deny the defendant’s right to a jury. Michelle
tion. Lassa v. Rongstad, 2006 WI 105, 294 Wis. 2d 187, 718 N.W.2d 673, 04−0377. T. v. Crozier, 173 Wis. 2d 681, 495 N.W.2d 327 (1993).
Actual malice requires that the allegedly defamatory statement be made with When collateral estoppel compels raising a counterclaim in an equitable action,
knowledge that it was false or with reckless disregard of whether it was false or not. that compulsion does not result in the waiver of the right to a jury trial. Norwest
Actual malice does not mean bad intent, ill−will, or animus. Repeated publication Bank v. Plourde, 185 Wis. 2d 377, 518 N.W.2d 265 (Ct. App. 1994).
of a statement after being informed that the statement was false does not constitute
actual malice so long as the speaker believes it to be true. Actual malice cannot be There is neither a statutory nor a constitutional right to have all parties identified
inferred from the choice of one rational interpretation of a speech over another. to a jury, but as a procedural rule the court should in all cases apprise the jurors of
Donohoo v. Action Wisconsin, Inc. 2008 WI 56, 309 Wis. 2d 704, 750 N.W.2d 739, the names of all the parties. Stoppleworth v. Refuse Hideaway, Inc. 200 Wis. 2d
06−0396. 512, 546 N.W.2d 870 (Ct. App. 1996), 93−3182.
The plaintiff was a public figure for all purposes when he was involved in highly A party has a constitutional right to have a statutory claim tried to a jury when:
controversial and newsworthy activities while in public office; the publicity and 1) the cause of action created by the statute existed, was known, or recognized at
controversy surrounding these events continued well after the term of office ended; common law at the time of the adoption of the Wisconsin Constitution in 1848; and
the plaintiff remained in the news after leaving office as a result of new develop- 2) the action was regarded as at law in 1848. Village Food & Liquor Mart v. H &
ments in the various inquiries into his official conduct; and he had a connection with S Petroleum, Inc. 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177, 00−2493.
another public official in the news. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. This section distinguishes the respective roles of judge and jury. It does not cur-
2d 225, 756 N.W.2d 649, 07−2314. tail the legislative prerogative to limit actions temporally or monetarily. Maurin v.
In general, the destruction of notes allows an inference that the notes would have Hall, 2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866, 00−0072.
provided evidence of actual malice, but this rule is not absolute. Because the plain- While a defendant has a right to a jury trial in a civil case, there is no vested right
tiff had not shown any way the destroyed notes might show actual malice, the under art. I, sec. 5, to the manner or time in which that right may be exercised or
destruction of the notes did not create a material factual dispute preventing sum- waived. These are merely procedural matters to be determined by law. Phelps v.
mary judgment. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756 Physicians Insurance Company of Wisconsin, Inc. 2005 WI 85, 282 Wis. 2d 69, 698
N.W.2d 649, 07−2314. N.W.2d 643, 03−0580.
In order to deem the Village Food test satisfied, there need not be specific identity
State libel laws are preempted by federal labor laws to the extent statements between the violation at bar and an 1848 cause of action, so long as there was an
made without knowledge of falsity or reckless disregard for truth are at issue. Old 1848 action that only differs slightly and is essentially a counterpart to the current
Dominion Br. No. 496, Nat. Asso., Letter Car. v. Austin, 418 U.S. 264. cause. To the extent that the 1849 statutes recognize broad causes of action for civil
A public figure who sues media companies for libel may inquire into the editorial forfeitures, they are insufficient to support a demand for a 12 person jury in every
processes of those responsible when proof of “actual malice” is required for recov- forfeiture action. Dane County v. McGrew, 2005 WI 130, 285 Wis. 2d 519, 699
ery. Herbert v. Lando, 441 U.S. 153 (1979). N.W.2d 890, 03−1794. See also State v. Schweda. 2007 WI 100, 303 Wis. 2d 353,
“Public figure” principle in libel cases are discussed. Wolston v. Reader’s Digest 736 N.W.2d 49, 05−1507.
Assn., Inc. 443 U.S. 157 (1979). A party’s waiver of the right of trial by jury need not be a waiver in the strictest
Defamation law of Wisconsin. Brody, 65 MLR 505 (1982). sense of that word, that is, an intentional relinquishment of a known right. Instead,
Limitations on damages awarded public officials in defamation suits. Kampen, a party may waive the right of trial by jury by failing to assert the right timely or
1972 WLR 574. by violating a law setting conditions on the party’s exercise of the jury trial right.
A Misplaced Focus: Libel Law and Wisconsin’s Distinction Between Media and Rao v. WMA Securities, Inc. 2008 WI 73, 310 Wis. 2d 623, 752 N.W.2d 220,
Nonmedia Defendants. Maguire. 2004 WLR 191. 06−0813.
It lies within the circuit court’s discretion to determine the appropriate procedure
for deciding factual issues in default judgment cases and that the defaulting party
Right to assemble and petition. SECTION 4. The right of therefore has no right of trial by jury. The circuit court did not violate the defen-
the people peaceably to assemble, to consult for the common dant’s right of trial by jury under Art. I, s. 5 when it denied the defendant’s motion
for a jury trial on the issue of damages. The defendant waived its right of trial by
good, and to petition the government, or any department thereof, jury in the manner set forth in ss. 804.12 and 806.02 by violating the circuit court’s
shall never be abridged. discovery order and by incurring a judgment by default. Rao v. WMA Securities,
A narrowly drawn anti−cruising ordinance did not violate the right to assemble Inc. 2008 WI 73, 310 Wis. 2d 623, 752 N.W.2d 220, 06−0813.
or travel. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 507 N.W.2d 163 Comparing the purpose underlying the modern statute to the purpose underlying
(Ct. App. 1993). its alleged common law counterpart will be helpful in applying the first prong of
the Village Food test. Harvot v. Solo Cup Company, 2009 WI 85, 320 Wis. 2d 1,
The right to intrastate travel, including the right to move about one’s neighbor- 768 N.W.2d 176, 07−1396.
hood in an automobile, is fundamental, but infringements on the right are not sub- An implied statutory right to trial by jury in situations where the legislature has
ject to strict scrutiny. Cruising ordinances, reasonable in time, place, and manner, not prescribed such a right and where the constitution does not afford such a right
do not violate this right. Brandmiller v. Arreola, 199 Wis. 2d 528, 544 N.W.2d 849 would open a can of worms. Statutes vary widely. Ad hoc judicial discovery of
(1996), 93−2842. implied statutory rights to trial by jury would not yield a meaningful legal test that
The legislature cannot prohibit an individual from entering the capitol or its could carry over from case to case, but would instead invite ad hoc argument when-
grounds. 59 Atty. Gen. 8. ever the statutes are silent. Harvot v. Solo Cup Company, 2009 WI 85, 320 Wis.
Section 947.06, Stats. 1969, which prohibits unlawful assemblies, is constitu- 2d 1, 768 N.W.2d 176, 07−1396.
tional. Cassidy v. Ceci, 320 F. Supp. 223. A jury trial is not constitutionally required in the adjudicative phase of a state
Wisconsin, a Constitutional Right to Intrastate Travel, and Anti−Cruising Ordi- juvenile court delinquency proceeding. McKeiver v. Pennsylvania, 403 U.S. 528.
nances. Mode. 78 MLR 735. Juror intoxication is not an external influence about which jurors may testify to
impeach a verdict. Tanner v. United States, 483 U.S. 107 (1987).
Trial by jury; verdict in civil cases. SECTION 5. [As
amended Nov. 1922] The right of trial by jury shall remain invio- Excessive bail; cruel punishments. SECTION 6. Exces-
late, and shall extend to all cases at law without regard to the sive bail shall not be required, nor shall excessive fines be
amount in controversy; but a jury trial may be waived by the par- imposed, nor cruel and unusual punishments inflicted.

Imposition of a 3−year sentence as a repeater was not cruel and unusual even him; to meet the witnesses face to face; to have compulsory pro-
though the present offense only involved the stealing of 2 boxes of candy, which
carried a maximum sentence of 6 months. Hanson v. State, 48 Wis. 2d 203, 179 cess to compel the attendance of witnesses in his behalf; and in
N.W.2d 909. prosecutions by indictment, or information, to a speedy public
It was not cruel and unusual punishment to sentence a defendant to 25 years for trial by an impartial jury of the county or district wherein the
armed robbery when the maximum was 30 years, when by stipulation the court took
into consideration 5 other uncharged armed robberies. Mallon v. State, 49 Wis. 2d offense shall have been committed; which county or district
185, 181 N.W.2d 364. shall have been previously ascertained by law.
Current standards of what constitutes cruel and unusual punishment should not CONFRONTATION AND COMPULSORY PROCESS
be applied in reviewing old sentences of long standing. State ex rel. Warren v.
County Court, 54 Wis. 2d 613, 197 N.W.2d 1. The right to have compulsory process to obtain witnesses in one’s behalf does
A sentence is not discriminatory and excessive because it is substantially greater not require that the state be successful in attempting to subpoena the defendant’s
than that received by a codefendant. State v. Studler, 61 Wis. 2d 537, 213 N.W.2d witnesses, but only that the process issue and that a diligent, good−faith attempt be
24. made by the officer to secure service of the process. Since the primary responsibil-
ity for having witnesses present in court rests with the parties and not the court, a
Actions for the forfeiture of property that are commenced by the government and motion for a continuance to obtain the attendance of witnesses is addressed to the
driven in whole or in part by a desire to punish may violate the guarantees against discretion of the trial court, and the exercise of that discretion will not be disturbed
excessive punishment. State v. Hammad, 212 Wis. 2d 343, 569 N.W.2d 68 (Ct. upon appeal or review except when it is clearly shown that there has been an abuse
App. 1997), 95−2669. of discretion. Elam v. State, 50 Wis. 2d 383, 184 N.W.2d 176.
A prison inmate does not possess a reasonable expectation of privacy in his body
that permits a 4th amendment challenge to strip searches. Prisoners convicted of An accused should be allowed to cross−examine to discover why an accomplice
crimes are protected from cruel and unusual treatment that prohibits prison officials has pleaded guilty and has testified against him. Champlain v. State, 53 Wis. 2d
from utilizing strip searches to punish, harass, humiliate, or intimidate inmates 751, 193 N.W.2d 868.
regardless of their status in the institution. Al Ghashhiyah v. McCaughtry, 230 Wis. When a witness is not available for trial and when the defendant has had a prior
2d 587, 602 N.W.2d 307 (Ct. App. 1999), 98−3020. opportunity to cross−examine that witness, former testimony, including that given
Cruel and unusual punishment extends to the denial of medical care if a serious at a preliminary examination, may be introduced without violating either constitu-
medical need was ignored and prison officials were deliberately indifferent to the tional mandates or the hearsay rule of evidence. State v. Lindsey, 53 Wis. 2d 759,
inmate’s condition. A serious medical need means that the illness or injury is suffi- 193 N.W.2d 699.
ciently serious to make the refusal uncivilized. Deliberate indifference implies an Because there was no showing that the witness was permanently ill, the defend-
act so dangerous that the defendant’s knowledge of the risk of harm from the result- ant was denied the constitutional right to confrontation by the court allowing the
ing act can be inferred. Cody v. Dane County, 2001 WI App 60, 242 Wis. 2d 173, use of the witness’ deposition. Sheehan v. State, 65 Wis. 2d 757, 223 N.W.2d 600.
625 N.W.2d 630, 00−0549. Whether a witness’s refusal on 5th amendment grounds to answer otherwise per-
The defendant’s life expectancy, coupled with a lengthy sentence, while perhaps missible questions violates the defendant’s right to confrontation must be deter-
guaranteeing that the defendant will spend the balance of his or her life in prison, mined from the whole record. West v. State, 74 Wis. 2d 390, 246 N.W.2d 675.
does not have to be taken into consideration by the circuit court. If the circuit court
chooses to consider a defendant’s life expectancy, it must explain, on the record, Admission of double hearsay did not violate defendant’s right to confront wit-
how the defendant’s life expectancy fits into the sentencing objectives. State v. nesses. State v. Lenarchick, 74 Wis. 2d 425, 247 N.W.2d 80.
Stenzel, 2004 WI App 181, 276 Wis. 2d 224, 688 N.W.2d 20, 03−2974. Introduction into evidence of a victim’s hospital records unsupported by testi-
In addressing whether a sentence constituted cruel and unusual punishment and mony of the treating physician did not violate the defendant’s right of confrontation
was excessive, a court looks to whether the sentence was so excessive and unusual, and cross−examination. State v. Olson, 75 Wis. 2d 575, 250 N.W.2d 12.
and so disproportionate to the offense committed, as to shock public sentiment and The trial court did not deny the defendant’s right of confrontation by forbidding
violate the judgment of reasonable people concerning what is right and proper cross−examination of the sole prosecution witness as to the witness’s history of
under the circumstances. State v. Davis, 2005 WI App 98, 698 N.W.2d 823, 281 mental illness, since no showing was made that the history was relevant to the wit-
Wis. 2d 118, 04−1163. ness’s credibility. The right of confrontation is also limited by s. 904.03 if the pro-
A sentence to life without the possibility of parole for a crime committed by a bative value of the desired cross−examination is outweighed by the possibility of
fourteen−year−old does not per se violate the constitutional prohibition against unfair or undue prejudice. Chapin v. State, 78 Wis. 2d 346, 254 N.W.2d 286.
cruel and unusual punishment. The differences between children and adults and The defendant’s right of confrontation was not violated when preliminary
between younger and older juveniles do not compel the conclusion that life without examination testimony of a deceased witness was admitted at trial when the defend-
parole constitutes cruel and unusual punishment. State v. Ninham, 2009 WI App ant had unlimited opportunity to cross−examine the witness and the testimony
64, 316 Wis. 2d 776, 767 N.W.2d 326, 08−1139. involved the same issues and parties as at trial. Nabbefeld v. State, 83 Wis. 2d 515,
Paddling students is not cruel and unusual punishment. Ingraham v. Wright, 430 266 N.W.2d 292 (1978).
U.S. 651. A defendant’s right to compulsory process did not require admission of an unsti-
A defendant’s life sentence was not cruel and unusual when the defendant’s 3 pulated polygraph exam. Lhost v. State, 85 Wis. 2d 620, 271 N.W.2d 121 (1978).
property crime felony convictions subjected him to a recidivist penalty. Rummel The trial court did not err in favoring a witness’s right against self−incrimination
v. Estelle, 445 U.S. 263 (1980). over the compulsory process rights of the defendant. State v. Harris, 92 Wis. 2d
A prison term of 40 years and fine of $20,000 for possession and sale of 9 ounces 836, 285 N.W.2d 917 (Ct. App. 1979).
of marijuana was not cruel and unusual punishment. Hutto v. Davis, 454 U.S. 370 The state’s failure to use the Uniform Extradition Act to compel the presence of
(1982). a doctor whose hearsay testimony was introduced denied the accused’s right to con-
The excessive fines clause of U.S. Constitution does not apply to civil punitive front witnesses and violated the hearsay rule, but the error was harmless. State v.
damage awards in actions between private parties. Browning−Ferris v. Kelco Dis- Zellmer, 100 Wis. 2d 136, 301 N.W.2d 209 (1981).
posal, 492 U.S. 257, 106 L. Ed. 2d 219 (1989). Medical records, as explained to the jury by a medical student, were sufficient
Exposure to an unreasonable risk of serious damage to future health is a basis for to support a conviction and did not deny the right of confrontation. Hagenkord v.
a cause of action for cruel and unusual punishment. Risk from environmental State, 100 Wis. 2d 452, 302 N.W.2d 421 (1981).
tobacco smoke was a basis for a cause of action. Helling v. McKinney, 509 U.S.
25, 125 L. Ed. 2d 22 (1993). The trial court properly denied a request to present a defense witness who refused
A sentence of 25 years to life in prison, imposed for the offense of felony grand to answer relevant questions during an offer of proof cross−examination. State v.
theft under the California three strikes law, is not grossly disproportionate and Wedgeworth, 100 Wis. 2d 514, 302 N.W.2d 810 (1981).
therefore does not violate the prohibition on cruel and unusual punishments. Ewing Admission of a statement by a deceased co−conspirator did not violate the right
v. California, 538 U.S. 11, 155 L. Ed. 2d 108, 123 S. Ct. 1179 (2003). of confrontation. State v. Dorcey, 103 Wis. 2d 152, 307 N.W.2d 612 (1981).
A state is not required to guarantee eventual freedom to a juvenile offender con- When a witness died after testifying at a preliminary examination, admission of
victed of a nonhomicide crime. The state must give defendants some meaningful the transcript of the testimony did not deny the right of confrontation. Constitu-
opportunity to obtain release based on demonstrated maturity and rehabilitation, tional standards for admission of hearsay evidence are discussed. State v. Bauer,
but the 8th amendment does not require the state to release that offender during his 109 Wis. 2d 204, 325 N.W.2d 857 (1982).
natural life. Graham v. Florida, 560 U.S. ___, 130 S. Ct. 2011, 176 L. Ed. 2d 825 Guidelines are set for admission of testimony of hypnotized witnesses. State v.
(2010). Armstrong, 110 Wis. 2d 555, 329 N.W.2d 386 (1983).
Persons confined in the central state hospital under ss. 51.20, 51.37, 971.14, Cross−examination, not exclusion, is the proper tool for challenging the weight
971.17, and 975.06 are being subjected to punishment within the meaning of the and credibility of accomplice testimony. State v. Nerison, 136 Wis. 2d 37, 401
cruel and unusual punishment clause. Flakes v. Percy, 511 F. Supp. 1325 (1981). N.W.2d 1 (1987).
A prisoner has no liberty interest in avoiding transfer to any prison, whether A defendant waives the right of confrontation by failing to object to the trial
within or without the state. Berdine v. Sullivan, 161 F. Supp. 2d 972 (2001). court’s finding of witness unavailability. State v. Gove, 148 Wis. 2d 936, 437
Incarcerating a person beyond the termination of his or her sentence without N.W.2d 218 (1989).
penological justification violates the 8th amendment prohibition against cruel and A prosecutor who obtained an incriminating statement from a defendant is
unusual punishment when it is the product of deliberate indifference. To comply obliged to honor a subpoena and to testify at a suppression hearing if there is a rea-
with due process, prison officials cannot ignore an inmate’s request to recalculate sonable probability that testifying will lead to relevant evidence. State v. Wallis,
his or her sentence and must place some procedure in place to address such 149 Wis. 2d 534, 439 N.W.2d 590 (Ct. App. 1989).
requests. Russell v. Lazar, 300 F. Supp 2d 316 (2004).
A defendant had no confrontation clause rights as to hearsay at a pretrial motion
Solitary confinement; punishment within the letter of the law or psychological hearing. The trial court could rely on hearsay in making its decision. State v.
torture? Thoenig, 1972 WLR 223. Frambs, 157 Wis. 2d 700, 460 N.W.2d 811 (Ct. App. 1990).
Appellate sentence review. 1976 WLR 655. Allegations of professional misconduct against the prosecution’s psychiatric
expert initially referred to the prosecutor’s office but immediately transferred to a
Rights of accused. SECTION 7. In all criminal prosecutions special prosecutor for investigation and possible criminal proceedings were prop-
erly excluded as the subject of cross−examination of the expert due to the lack of
the accused shall enjoy the right to be heard by himself and coun- a logical connection between the expert and prosecutor necessary to suggest bias.
sel; to demand the nature and cause of the accusation against State v. Lindh, 161 Wis. 2d 324, 468 N.W.2d 168 (1991).

The ability of a child witness to speak the truth or communicate intelligently are Casual remarks on the telephone to an acquaintance plainly were not testimonial.
matters of credibility for the jury, not questions of competency to be determined by That an informant overheard the remarks does not transform the informant into a
the judge. State v. Hanna, 163 Wis. 2d 193, 471 N.W.2d 238 (Ct. App. 1991). government officer or change the casual remark into a formal statement. State-
When a witness’s “past−recollection recorded statement” was admitted after the ments made in furtherance of a conspiracy by their nature are not testimonial. State
witness testified and was found “unavailable” as a result of having no current v. Savanh, 2005 WI App 245, 287 Wis. 2d 876, 707 N.W.2d 549, 04−2583.
memory of the murder in question, there was an opportunity for cross−examination In applying the 3−part test under Crawford and Savanh, statements volunteered
and the right to confrontation was not violated. State v. Jenkins, 168 Wis. 2d 175, to officers at the scene of a traumatic event absent any interrogation or other police
483 N.W.2d 262 (1992). prompting generated by the desire of the prosecution or police to seek evidence
A defendant charged with trespass to a medical facility is entitled to compulsory against a particular suspect were found not to be testimonial. State v. Searcy, 2006
process to determine if any patients present at the time of the alleged incident had WI App 8, 288 Wis. 2d 804, 709 N.W.2d 497, 04−2827.
relevant evidence. State v. Migliorino, 170 Wis. 2d 576, 489 N.W.2d 715 (Ct. App. A witness’s claimed inability to remember earlier statements or the events sur-
1992). rounding those statements does not implicate the requirements of the Confrontation
Clause if the witness is present at trial, takes an oath to testify truthfully, and
To be entitled to an in camera inspection of privileged records, a criminal defend- answers the questions put to him or her during cross−examination. In contrast to
ant must show the sought after evidence is relevant and helpful to the defense or cases when the witness either invokes the 5th amendment and remains silent or
necessary to a fair determination of guilt or innocence. Failure of the record’s sub- refuses to be sworn in or testify, when a witness takes the stand, agrees to testify
ject to agree to inspection is grounds for sanctions, including suppressing the record truthfully, and answers the questions posed by defense counsel, defense counsel is
subject’s testimony. State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. able to test the witness’s recollection, motive, and interest and hold his or her testi-
1993). See also State v. Speese, 191 Wis. 2d 205, 528 N.W.2d 63 (Ct. App. 1995.)
mony up so that the jury can decide whether it is worthy of belief. State v. Rockette,
An indigent may be entitled to have a court compel the attendance of an expert 2006 WI App 103, 294 Wis. 2d 611, 718 N.W.2d 269, 04−2732.
witness. It may be error to deny a request for an expert to testify on the issue of When officers did not go to the victim’s house looking for evidence with which
suggestive interview techniques used with a young child witness if there is a “par- to prosecute the defendant, and, after they arrived their focus was not on building
ticularized need” for the expert. State v. Kirschbaum, 195 Wis. 2d 11, 535 N.W.2d a case against the victim but, rather, trying to ensure the safety of the defendant and
462 (Ct. App. 1995), 94−0899. her daughter, and other members of the community the the out−of−court declara-
The right to confrontation was not violated by the admission of a nontestifying tions of the victim and her daughter were not testimonial. State v. Rodriguez, 2006
codefendant’s confession with a proper limiting instruction when the confession WI App 163, 295 Wis. 2d 801, 722 N.W.2d 136, 05−1265.
was redacted to eliminate any reference to the defendant’s existence. State v. May- The accused does not have an unfettered right to offer testimony that is incompe-
hall, 195 Wis. 2d 53, 535 N.W.2d 473 (Ct. App. 1995), 94−0727. tent, privileged, or otherwise inadmissible under the standard rules of evidence.
An accused has the right to be present at trial, but the right may be waived by When evidence is irrelevant or not offered for a proper purpose, the exclusion of
misconduct or consent. A formal on−the−record waiver is favored, but not that evidence does not violate a defendant’s constitutional right to present a
required. State v. Divanovic, 200 Wis. 2d 210, 546 N.W.2d 501 (Ct. App. 1996), defense. There is no abridgement on the accused’s right to present a defense so long
95−0881. as the rules of evidence used to exclude the evidence offered are not arbitrary or
The right to confrontation is not violated when the court precludes a defendant disproportionate to the purposes for which they are designed. State v. Mucker-
from presenting evidence that is irrelevant or immaterial. State v. McCall, 202 Wis. heide, 2007 WI 5, 298 Wis. 2d 553, 725 N.W.2d 930, 05−0081.
2d 29, 549 N.W.2d 418 (1996), 94−1213. Despite the state constitution’s more direct guarantee to defendants of the right
Evidence of 911 calls, including tapes and transcripts of the calls, is not inadmis- to meet their accusers face to face, the Wisconsin Supreme Court has generally
sible hearsay. Admission does not violate the right to confront witnesses. State v. interpreted the state and federal rights of confrontation to be coextensive. The U.S.
Ballos, 230 Wis. 2d 495, 602 N.W.2d 117 (Ct. App. 1999), 98−1905. Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), does not
Confrontation promotes the reliability of evidence by rigorously testing it in an represent a shift in confrontation−clause jurisprudence that overturns state and fed-
adversarial proceeding before the jury. A defendant must have the opportunity to eral precedents permitting a witness to testify from behind a barrier upon a particu-
meaningfully cross−examine witnesses, and the right to present a defense may in larized showing of necessity. State v. Vogelsberg, 2006 WI App 228, 297 Wis. 2d
some cases require the admission of testimony that would otherwise be excluded 519, 724 N.W.2d 649, 05−1293.
under applicable rules of evidence. State v. Dunlap, 2000 WI App 251, 239 Wis. The confrontation clause places no constraints on the use of prior testimonial
2d 423, 620 N.W.2d 398, 99−2189. statements when the declarant appears for cross−examination. It made no differ-
For a defendant to establish a constitutional right to the admissibility of proffered ence in this case where oral statements of a witness were not disclosed until a subse-
expert testimony, the defendant must satisfy a two−part inquiry determining quent police witness testified whether the burden was on the state or the defendant
whether the evidence is clearly central to the defense and the exclusion of the evi- to show that the witness was available for further cross−examination after the court
dence is arbitrary and disproportionate to the purpose of the rule of exclusion, so told the witness he could step down. The witness testified and was cross−examined
that exclusion undermines fundamental elements of the defendant’s defense. State concerning his statements to the police; therefore, defendant’s right to confronta-
v. St. George, 2002 WI 50, 252 Wis. 2d 499, 643 N.W.2d 277, 00−2830. tion was not violated. State v. Nelis, 2007 WI 58, 300 Wis. 2d 415, 733 N.W.2d
Cross−examination of a highly qualified witness, who is familiar with the proce- 619, 05−1920.
dures used in performing the tests whose results are offered as evidence, who super- In determining whether a statement is testimonial under Crawford, a broad defi-
vises or reviews the work of the testing analyst, and who renders his or her own nition of testimonial is required to guarantee that the right to confrontation is pre-
expert opinion is sufficient to protect a defendant’s right to confrontation, despite served. The government does not need to be involved in the creation of a testimo-
the fact that the expert was not the person who performed the mechanics of the orig- nial statement. A statement is testimonial if a reasonable person in the position of
inal tests. State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, the declarant would objectively foresee that his or her statement might be used in
00−3065. the investigation or prosecution of a crime. It does not matter if a crime has already
When the privilege against self−incrimination prevents a defendant from been committed or not. Statements made to loved ones or acquaintances are not
directly questioning a witness about his or her testimony, it may be necessary to the memorialized type of statements that Crawford addressed. State v. Jensen,
prohibit that witness from testifying or to strike portions of the testimony if the wit- 2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518, 04−2481. See also Giles v. Califor-
ness has already testified. A defendant’s right of confrontation is denied in each nia, 128 S. Ct. 2678, 171 L. Ed. 2d 488, 128 S. Ct. 2678 (2008).
instance that potentially relevant evidence is excluded. The question is whether the The forfeiture by wrongdoing doctrine is adopted in Wisconsin. Essentially, the
defendant could effectively cross−examine the witness. State v. Barreau, 2002 WI forfeiture by wrongdoing doctrine states that an accused can have no complaint
App 198, 257 Wis. 2d. 203, 651 N.W.2d 12, 01−1828. based on the right to confrontation about the use against him or her of a declarant’s
When a witness’s memory, credibility, or bias was not at issue at trial, the inabil- statement if it was the accused’s wrongful conduct that prevented any cross−ex-
ity of the defendant to cross−examine the witness at the preliminary hearing with amination of the declarant. State v. Jensen, 2007 WI 26, 299 Wis. 2d 267, 727
questions that went to memory, credibility, or bias did not present an unusual cir- N.W.2d 518, 04−2481.
cumstance that undermined the reliability of the witness’s testimony. Admission In applying the the forfeiture by wrongdoing doctrine the circuit court must
of the unavailable witness’s preliminary hearing testimony did not violate the determine whether, by a preponderance of the evidence, the defendant caused the
defendant’s constitutional right to confrontation. State v. Norman, 2003 WI 72, 262 witness’s unavailability, thereby forfeiting his or her right to confrontation. While
Wis. 2d 506, 664 N.W.2d 97, 01−3303. requiring the court to decide the evidence the very question for which the defendant
A violation of the confrontation clause does not result in automatic reversal, but is on trial may seem troublesome, equitable considerations demand such a result.
rather is subject to harmless error analysis. State v. Weed, 2003 WI 85, 263 Wis. State v. Jensen, 2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518, 04−2481.
2d 434, 666 N.W.2d 485, 01−1746. Under the doctrine of forfeiture by wrongdoing announced in Jensen, the state-
Prior testimony may be admitted against a criminal defendant only when that ment of an absent witness is admissible against a defendant who the trial court
defendant has had a prior opportunity to cross−examine the witness giving that tes- determines by a preponderance of the evidence caused the witness’s absence.
timony. State v. Hale, 2005 WI 7, 277 Wis. 2d 593, 691 N.W.2d 593, 03−0417. When a jury finds beyond a reasonable doubt that the defendant intimidated the per-
Unavailability for confrontation purposes requires both that the hearsay declar- son who was a witness, the defendant has forfeited, by his or her own misconduct,
ant not appear at the trial and, critically, that the state make a good−faith effort to the right to confront that witness. State v. Rodriguez, 2007 WI App 252, 306 Wis.
produce that declarant at trial. If there is a remote possibility that affirmative mea- 2d 129, 743 N.W.2d 460, 05−1265.
sures might produce the declarant, the obligation of good faith may demand their Inasmuch as a criminal defendant does not have an unqualified right to require
effectuation. The lengths to which the prosecution must go to produce a witness the appearance of any persons as witnesses for trial, and a defendant’s right to com-
is a question of reasonableness. State v. King, 2005 WI App 224, 287 Wis. 2d 756, pulsory process at trial must satisfy certain standards, the compulsory process
706 N.W.2d 181, 04−2694. rights of a defendant at the preliminary stage of criminal proceedings also must be
When testimonial statements are at issue, the only indicium of reliability suffi- subject to reasonable restrictions. The court declines to expand a criminal defen-
cient to satisfy constitutional demands is confrontation. Crawford v. Washington, dant’s compulsory process rights to encompass a right to subpoena police reports
541 U.S. 36, laid out 3 formulations of the core class of testimonial statements. 1) and other non−privileged investigatory materials for examination and copying in
ex parte in−court testimony or its functional equivalent, such as affidavits, custo- anticipation of a preliminary hearing. State v. Schaefer, 2008 WI 25, 308 Wis. 2d
dial examinations, prior testimony that the defendant was unable to cross−examine, 279, 746 N.W.2d 457, 06−1826.
or similar pretrial statements that declarants would reasonably expect to be used By the judge’s reading at a criminal trial the transcript of a hearing at which the
prosecutorially; 2) extrajudicial statements contained in formalized testimonial defendant appeared to be intoxicated, resulting in additional charges, the jury was
materials, such as affidavits, depositions, prior testimony, or confessions; and 3) essentially provided with the judge’s and the prosecutor’s conclusions at the hear-
statements made under circumstances that would lead an objective witness to ing about the defendant’s guilt with the circuit court and the prosecutor essentially
believe that the statement would be available for use at a later trial. State v. Savanh, testifying against the defendant, denying the right to cross−examination. State v.
2005 WI App 245, 287 Wis. 2d 876, 707 N.W.2d 549, 04−2583. Jorgensen, 2008 WI 60, 310 Wis. 2d 138, 754 N.W.2d 77, 06−1847.

Affidavits verifying nontestimonial bank records in compliance with s. 891.24 The use of a child victim’s statements to a psychologist under s. 908.03 (4) vio-
are nontestimonial and their admission does not violate the confrontation clause. lated the accused sexual assaulter’s confrontation rights. Nelson v. Ferrey, 688 F.
The affidavits fulfill a statutory procedure for verifying nontestimonial bank Supp. 1304 (E. D. Wis. 1988).
records and do not supply substantive evidence of guilt. State v. Doss, 2008 WI 93, The trial court’s wholesale exclusion of the defendant’s proffered expert and lay
312 Wis. 2d 570, 754 N.W.2d 150, 06−2254. testimony regarding post−traumatic stress disorder from the guilt phase of a murder
Applying the St. George test in an OWI prosecution, even if a defendant estab- trial, without valid state justification, violated the defendant’s right to present a
lishes a constitutional right to present an expert opinion that is based in part on por- defense and to testify in her own behalf. Morgan v. Krenke, 72 F. Supp. 2d 980
table breath test results, the right to do so is outweighed by the state’s compelling (1999).
interest to exclude that evidence. Permitting the use of that evidence as the basis State v. Thomas: Face to Face With Coy and Craig — Constitutional Invocation
for an expert opinion would render meaningless the legislature’s act forbidding that of Wisconsin’s Child−Witness Protection Statute. 1990 WLR 1613.
evidence in OWI prosecutions under s. 343.303, an act that promotes efficient A Bad Case of Indigestion: Internalizing Changes in the Right to Confrontation
investigations of suspected drunk driving incidents and furthers the state’s compel- After Crawford v. Washington Both Nationally and in Wisconsin. Kinnally. 89
ling interest in public safety on its roads. State v. Fischer, 2010 WI 6, 322 Wis. 2d MLR 625 (2005).
265, 778 N.W.2d 629, 07−1898. Hearsay and the Confrontation Clause. Biskupic. Wis. Law. May 2004.
The U.S. Supreme Court in Giles held that forfeiture by wrongdoing required not
just that the defendant prevented the witness from testifying, but also that the defen- COUNSEL
dant intended to prevent the witness from testifying. In doing so, the Court Note: See also the notes to Article I, Section 8 — Self−incrimination.
reaffirmed the doctrine’s viability generally, but chose a narrower view of its scope A defendant is entitled to the presence of counsel at a post−warrant lineup, but
than Jensen, 2007 WI 26. State v. Baldwin, 2010 WI App 162, ___ Wis. 2d ___, the attorney need not participate or object, and need not be the ultimate trial coun-
___ N.W.2d ___, 2009−1540. sel. Wright v. State, 46 Wis. 2d 75, 175 N.W.2d 646.
When required by the right effectively to present a defense, the state, having A city attorney should not be appointed defense counsel in a state case in which
authority to do so, in the exercise of sound discretion must issue, and for an indigent city police are involved unless the defendant, being fully informed, requests the
pay the costs of, compulsory process to obtain the attendance of witnesses on behalf appointment. Karlin v. State, 47 Wis. 2d 452, 177 N.W.2d 318.
of probationers and parolees at revocation proceedings. 63 Atty. Gen. 176. A conference in chambers between defendant’s counsel and the prosecutor in
Introduction of an accomplice’s confession for rebuttal purposes, not hearsay, regard to a plea agreement, but without the defendant’s presence, was not violative
did not violate the defendant’s confrontation rights. Tennessee v. Street, 471 U.S. of his constitutional rights and not a manifest injustice since the defendant had the
409 (1985). benefit of counsel both during the entry of his plea and at the sentencing and the
The confrontation clause does not require a showing of unavailability as a condi- defendant on the record expressly acquiesced in the plea agreement. Kruse v. State,
tion of admission of out−of−court statements of a non−testifying co−conspirator. 47 Wis. 2d 460, 177 N.W.2d 322.
United States v. Inadi, 475 U.S. 387 (1986). A disciplinary action against an attorney is a civil proceeding. An indigent attor-
The confrontation clause does not require the defendant to have access to confi- ney is not entitled to the appointment of an attorney. State v. Hildebrand, 48 Wis.
dential child abuse reports. Due process requires the trial court to undertake an in 2d 73, 179 N.W.2d 892.
camera inspection of the file to determine whether it contains material exculpatory An indigent defendant is not entitled to a substitution of appointed counsel when
evidence. Pennsylvania v. Ritchie, 480 U.S. 39 (1987). he is dissatisfied with the one appointed. Peters v. State, 50 Wis. 2d 682, 184
Admission of a nontestifying codefendant’s confession violates confrontation N.W.2d 826.
rights, even though the defendant’s confession was also admitted. Cruz v. New ABA standards relating to the duty of defense counsel while approved by the
York, 481 U.S. 186 (1987). court, do not automatically prove incompetency or ineffectiveness if violated.
The confrontation clause does not require that the defendant be permitted to be State v. Harper, 57 Wis. 2d 543, 205 N.W.2d 1.
present at a competency hearing of a child witnesses as long as the defendant is pro- An arrestee has no right to demand that counsel be present while a breathalyzer
vided the opportunity for full and effective cross−examination at trial. Kentucky test is administered. State v. Driver, 59 Wis. 2d 35, 207 N.W.2d 850.
v. Stincer, 482 U.S. 730 (1987). A defendant has no right to counsel or to be present when photographs are shown
The confrontation clause prohibits the placement of a screen between a child wit- to a witness. The right to counsel exists only at or after the initiation of criminal
ness and the defendant. Coy v. Iowa, 487 U.S. 1012 (1988). proceedings. Holmes v. State, 59 Wis. 2d 488, 208 N.W.2d 815.
If a state makes an adequate showing of necessity, it may use a special procedure, While it is not desirable, it is not error, to appoint a city attorney from another
such as one−way closed−circuit television to transmit a child witness’ testimony to city, not connected with the testifying police, as defense attorney. Hebel v. State,
court without face−to−face confrontation with the defendant. Maryland v. Craig, 60 Wis. 2d 325, 210 N.W.2d 695.
497 U.S. 836, 111 L. Ed. 2d 666 (1990). A person is not entitled to counsel at a lineup prior to the filing of a formal charge,
In a joint trial, the confession of one defendant naming the other defendant that but prosecution may not be delayed while a suspect is in custody merely for the pur-
was read with the word “deleted” replacing the second defendant’s name violated pose of holding a lineup without counsel. State v. Taylor, 60 Wis. 2d 506, 210
the second defendant’s right of confrontation. Gray v. Maryland, 523 U.S. 185, 140 N.W.2d 873.
L. Ed. 2d 294 (1998). A conviction was not overturned because of the absence of counsel at an infor-
The rights to be present at trial and to confront witnesses are not violated by a mal confrontation where the defendant was identified by the victim. Jones v. State,
prosecutor’s comment in closing argument that the defendant had the opportunity 63 Wis. 2d 97, 216 N.W.2d 224.
to hear all witnesses and then tailor his testimony accordingly. Portuondo v. Agard,
When a conflict arises in dual representation, a defendant must be granted a
529 U.S. 61, 146 L. Ed. 2d 47 (2000).
vacation of sentence and new hearing because a conflict at sentencing per se ren-
The 6th amendment confrontation clause demands unavailability and a prior
ders counsel representation ineffective and actual prejudice need not be shown.
opportunity for cross−examination. Whatever else the term testimonial covers, it
Hall v. State, 63 Wis. 2d 304, 217 N.W.2d 352.
applies at a minimum to prior testimony at a preliminary hearing, before a grand
jury, or at a former trial; and to police interrogations. Crawford v. Washington, 541 Defense counsel’s failure to cross−examine the state’s principal witness at trial
U.S. 36, 158 L. Ed 2d 177, 124 S. Ct. 1354 (2004). did not constitute ineffective representation when cross−examination had proved
When testimonial statements are at issue, the only indicium of reliability suffi- fruitless at the preliminary. Krebs v. State, 64 Wis. 2d 407, 219 N.W.2d 355.
cient to satisfy constitutional demands is confrontation. “Testimonial statements” The duty to appoint counsel is upon the judicial system as part of the superintend-
includes at a minimum prior testimony at a preliminary hearing, before a grand jury, ing power of the judicial system. When the appointment of counsel for indigent
or at a former trial; and to police interrogations. Crawford v. Washington, 541 U.S. convicted persons for parole and probation revocation proceedings will be recur-
36, 158 L. Ed 2d 177, 124 S. Ct. 1354 (2004). rent and statewide, the power of appointment will be exercised by the supreme
Statements are nontestimonial under Crawford when made in the course of court. State ex rel. Fitas v. Milwaukee County, 65 Wis. 2d 130, 221 N.W.2d 902.
police interrogation under circumstances objectively indicating that the primary The trial judge must unconditionally and unequivocably demonstrate in the
purpose of the interrogation is to enable police assistance to meet an ongoing emer- record that the defendant intelligently, voluntarily, and understandingly waived the
gency. They are testimonial when the circumstances objectively indicate that there constitutional right to counsel, whether or not the defendant is indigent. Keller v.
is no such ongoing emergency, and that the primary purpose of the interrogation State, 75 Wis. 2d 502, 249 N.W.2d 773.
is to establish or prove past events potentially relevant to later criminal prosecution. When a state agency seeks to enforce its orders through the coercion of imprison-
A conversation that begins as an interrogation to determine the need for emergency ment for contempt, the full constitutional right to counsel arises. Ferris v. State ex
assistance can evolve into testimonial statements. Davis v. Washington, 547 U.S. rel. Maass, 75 Wis. 2d 542, 249 N.W.2d 789.
813, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006). One charged with a crime carrying a penalty of incarceration has the full consti-
A defendant does not forfeit the right to confront a witness when a judge deter- tutional right to counsel, regardless of whether incarceration is ordered. State ex
mines that a wrongful act by the defendant made the witness unavailable to testify rel. Winnie v. Harris, 75 Wis. 2d 547, 249 N.W.2d 791.
at trial. The “forfeiture by wrongdoing” doctrine applies only when the defendant The mere fact that one attorney represents 2 defendants charged in the same
engaged or acquiesced in wrongdoing that was intended to, and did, procure the crime is not sufficient evidence of inadequate representation. The defendant has
unavailability of the declarant as a witness. The requirement of intent means that the burden of showing by clear and convincing evidence that an actual and opera-
the exception applies only if the defendant has in mind the particular purpose of tive conflict existed. Harrison v. State, 78 Wis. 2d 189, 254 N.W.2d 220.
making the witness unavailable. Giles v. California, 128 S. Ct. 2678 171 L. Ed. 2d
A defendant has no right to be actively represented in the courtroom both by self
488, 128 S. Ct. 2678 (2008).
and by counsel. Moore v. State, 83 Wis. 2d 285, 265 N.W.2d 540 (1978).
Under Crawford, analysts’ affidavits that certified that evidence was in fact
cocaine were testimonial statements and the analysts were “witnesses” for pur- The test to determine if the denial of a continuance acted to deny a defendant
poses of the 6th amendment confrontation clause. Absent a showing that the ana- either due process or effective assistance of counsel is discussed. State v. Wollman,
lysts were unavailable to testify at trial and that petitioner had a prior opportunity 86 Wis. 2d 459, 273 N.W.2d 225 (1979).
to cross−examine them, petitioner was entitled to be confronted with the analysts The right to counsel does not extend to non−lawyer representatives. State v.
at trial. Melendez−Diaz v. Massachusetts, 557 U.S. ___, 129 S. Ct. 2527, 174 L. Kasuboski, 87 Wis. 2d 407, 275 N.W.2d 101 (Ct. App. 1978).
Ed. 2d 314 (2009). Withdrawal of a guilty plea on the grounds of ineffective representation by trial
A finding of unavailability of a witness due to mental illness, made on the basis counsel is discussed. State v. Rock, 92 Wis. 2d 554, 285 N.W.2d 739 (1979).
of a confused and stale record, deprived the defendant of the right to confront wit- A defendant’s request on the morning of trial to represent himself was properly
nesses, but the error was harmless. Burns v. Clusen, 599 F. Supp. 1438 (1984). denied as untimely. Hamiel v. State, 92 Wis. 2d 656, 285 N.W.2d 639 (1979).

A prerequisite to a claim on appeal of ineffective trial representation is preserva- A defendant must assert the right to counsel in a timely manner. However, no
tion of trial counsel’s testimony at a postconviction hearing in which the representa- waiver of counsel is presumed and a waiver must be clear and unequivocal. The
tion is challenged. State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. state has the burden of overcoming the presumption. Mere inconvenience to the
1979). court is insufficient to deny the right to counsel. State v. Verdone, 195 Wis. 2d 476,
The trial court did not err in refusing the defendant’s request on the 2nd day of 536 N.W.2d 172 (Ct. App. 1995), 94−3369.
trial to withdraw a waiver of the right to counsel. Self−representation is discussed. Withdrawal of a guilty plea after sentencing may be based on ineffective assist-
Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980). ance of counsel. Erroneous advice regarding parole eligibility can form the basis
The right to counsel did not preclude incarceration for a second operating while for ineffective assistance. State v. Bentley, 195 Wis. 2d 580, 536 N.W.2d 202 (Ct.
intoxicated conviction when the defendant was not represented by counsel in pro- App. 1995), 94−3310.
ceedings leading to the first conviction, since the first offense was a civil forfeiture A trial court’s failure to conduct a hearing to determine if a defendant’s waiver
case. State v. Novak, 107 Wis. 2d 31, 318 N.W.2d 364 (1982). of counsel is knowingly made is harmless error absent a showing of prejudice. A
Counsel was ineffective for failing to raise the heat−of−passion defense in a mur- trial court need not make a finding that a defendant is competent to proceed without
der case when a wife who had been maltreated during a 23−year marriage intention- counsel unless there is doubt that the defendant is competent to stand trial. State
ally killed her husband while he lay sleeping. State v. Felton, 110 Wis. 2d 485, 329 v. Kessig, 199 Wis. 2d 397, 544 N.W.2d 605 (Ct. App. 1995), 95−1938.
N.W.2d 161 (1983). In certain situations a court may find that a defendant has waived counsel without
A defendant’s uncorroborated allegations will not support a claim of ineffective having expressly done so. Waiver was found when the defendant constantly
representation when counsel is unavailable to rebut the claim of ineffectiveness. refused to cooperate with counsel while refusing to waive the right and when the
State v. Lukasik, 115 Wis. 2d 134, 340 N.W.2d 62 (Ct. App. 1983). court found the defendant’s intent was to “delay, obfuscate and compound the pro-
Effective assistance of counsel was denied when the defense attorney did not cess of justice.” State v. Cummings, 199 Wis. 2d 721, 516 N.W.2d 406 (1996),
properly inform the client of the personal right to accept a plea offer. State v. Lud- 93−2445.
wig, 124 Wis. 2d 600, 369 N.W.2d 722 (1985). The test for ineffective assistance of counsel under the state constitution is the
When a trial court fails to make adequate inquiry into a defendant’s last−minute same as under the federal constitution. In such cases the burden is placed on the
request to replace his or her attorney, the right to counsel is adequately protected defendant to show that the deficient performance of counsel prejudiced the
by a retrospective hearing at which the defendant may present his or her own testi- defense. State v. Sanchez, 201 Wis. 2d 219, 548 N.W.2d 69 (1996), 94−0208.
mony. State v. Lomax, 146 Wis. 2d 356, 432 N.W.2d 89 (1988). Read together, s. 809.32 (4) and 977.05 (4) (j) create a statutory, but not constitu-
The 5th and 6th amendment rights to counsel and Edwards v. Arizona are dis- tional, right to counsel in petitions for review and cases before any court, provided
cussed. State v. McNeil, 155 Wis. 2d 24, 454 N.W.2d 742 (1990). See also the note counsel does not determine the appeal to be without merit. When counsel fails to
hereunder citing McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158 (1991). See timely file a petition for review, the defendant may petition for a writ of habeas cor-
also Texas v. Cobb, 532 U.S. 162, 149 LEd 2d 321 (2001). pus and the supreme court has the power to allow late filing. Schmelzer v. Murphy,
Defense counsel’s absence at the return of the jury verdict without the defen- 201 Wis. 2d 246, 548 N.W.2d 45 (1996), 95−1096.
dant’s consent and the failure to poll the jury were grounds for automatic reversal. Whether counsel is deficient by not requesting the polling of individual jurors
State v. Behnke, 155 Wis. 2d 796, 456 N.W.2d 610 (1990). upon the return of a verdict depends on all the circumstances, not on whether coun-
When a defendant accepts counsel, the decision to assert or waive a constitu- sel explained to the defendant the right to an individual polling. State v. Yang, 201
tional right is delegated to the attorney. The failure of the defendant to object to the Wis. 2d 725, 549 N.W.2d 769 (Ct. App. 1996), 95−0583.
attorney’s waiver, is waiver. State v. Wilkens, 159 Wis. 2d 618, 465 N.W.2d 206 To establish ineffective assistance of counsel based on a conflict of interest there
(Ct. App. 1990). must be an actual conflict that adversely affected the attorney’s performance.
There is a two−prong test for ineffective counsel: 1) trial counsel was ineffective; Simultaneous representation of a criminal defendant and a witness in that case in
and 2) the defense was prejudiced so that absent error the result would have been an unrelated civil case resulted in an actual conflict. State v. Street, 202 Wis. 2d
different. State v. Wilkens, 159 Wis. 2d 618, 465 N.W.2d 206 (Ct. App. 1990). 533, 551 N.W.2d 830 (Ct. App. 1996), 95−2242.
A court may disqualify the defendant’s chosen counsel over the defendant’s Counsel is not ineffective when the general theory of the defense is discussed
objection and waiver of the right to conflict−free representation when actual or a with the defendant, and when based on that theory, counsel makes a strategic deci-
serious potential for a conflict of interest exists. State v. Miller, 160 Wis. 2d 646, sion not to request a lesser−included instruction because it would be inconsistent
467 N.W.2d 118 (1991). with or harmful to the theory of the defense. State v. Eckert, 203 Wis. 2d 497, 553
A determination of indigency by the public defender under s. 977.07 is not the N.W.2d 539 (Ct. App. 1996), 95−1877.
end of the court ’s inquiry into the need to appoint counsel. State v. Dean, 163 Wis. When a prosecutor elicits testimony that can only be contradicted by defense
2d 503, 471 N.W.2d 310 (Ct. App. 1991). counsel or the defendant, if defense counsel could not reasonably foresee the
To bring a claim of ineffective appellate counsel, defendant must petition the dilemma and the defendant has decided not to testify, defense counsel must be per-
court that heard the appeal for a writ of habeas corpus. State v. Knight, 168 Wis. mitted to testify. State v. Foy, 206 Wis. 2d 629, 557 N.W.2d 494 (Ct. App. 1996),
2d 509, 484 N.W.2d 540 (1992). 96−0658.
The question of ineffective counsel is whether there is a reasonable probability Counsel was deficient when it failed to object at sentencing to a prosecutor’s sen-
that a jury viewing the evidence untainted by counsel’s errors would have had a rea- tence recommendation after agreeing in a plea bargain to make no recommenda-
sonable doubt respecting guilt. State v. Glass, 170 Wis. 2d 146, 488 N.W.2d 432 tion. The defendant was automatically prejudiced when the prosecutor materially
(Ct. App. 1992). and substantially breached the plea agreement. State v. Smith, 207 Wis. 2d 259,
558 N.W.2d 379 (1997), 94−3364.
A defense attorney’s ex parte petition to withdraw was improperly granted. A
minimal due process hearing was required. State v. Batista, 171 Wis. 2d 690, 492 Whenever a defendant seeks to proceed pro se, a colloquy to determine whether
N.W.2d 354 (Ct. App. 1992). the waiver is knowing and voluntary is required. The colloquy is to ensure that the
defendant: 1) made a deliberate choice to proceed without counsel, 2) was aware
Absent a clear waiver of counsel and a clear demonstration of a defendant’s abil- of the difficulties and disadvantages of self−representation, 3) was aware of the
ity to proceed pro se, courts are advised to mandate full representation by counsel. seriousness of the charge or charges, and 4) was aware of the general range of the
State v. Haste, 175 Wis. 2d 1, N.W.2d (Ct. App. 1993). possible penalties. When there is no colloquy and post−conviction relief is
The proper test of attorney performance is reasonableness under prevailing pro- requested, the court must hold an evidentiary hearing on the waiver and the state
fessional norms. Counsel is not required to have a total and complete knowledge must prove by clear and convincing evidence that the waiver was knowingly made
of all criminal law, no matter how obscure. State v. Hubert, 181 Wis. 2d 333, 510 for the conviction to stand. State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716
N.W.2d 799 (Ct. App. 1993). (1997), 95−1938.
Appellate counsel’s closing of a file because of no merit without the defendant There is a higher standard for determining competency to represent oneself than
knowing of the right to disagree and compel a no merit report under s. 809.32 is for competency to stand trial. The standard is based on the defendant’s education,
ineffective assistance of counsel. A defendant must be informed of the right to literacy, fluency in English, and any disability that may affect the ability to commu-
appeal and to a no merit report, but need not be informed orally. State ex rel. Flores nicate a defense. When there is no pretrial finding of competency to proceed and
v. State, 183 Wis. 2d 587, 516 N.W.2d 362 (1994). post−conviction relief is sought, the court must determine if it can make a meaning-
An appellate defendant represented by counsel has no right to have a pro se brief ful nunc pro tunc inquiry. If it cannot, or it finds that it can but the defendant was
considered by the court when counsel has submitted a brief. State v. Debra A. E. not competent, a new trial is required. State v. Klessig, 211 Wis. 2d 194, 564
188 Wis. 2d 111, 523 N.W.2d 727 (Ct. App. 1994). N.W.2d 716 (1997), 95−1938.
The decision to poll the jury may be delegated to counsel. Waiver by counsel It was ineffective assistance of counsel to advise a defendant to go to trial and
without showing that the waiver was knowingly and voluntarily made by the defen- lie rather than agree to a plea agreement. Despite the defendant’s participation in
dant did not violate a constitutional right. State v. Jackson, 188 Wis. 2d 537, 525 fraud on the court, the defendant was entitled to vacation of his sentence and a
N.W.2d 165 (Ct. App. 1994). return to pretrial status, although offering the prior proposed plea agreement was
If the same counsel represents co−defendants, the trial court must conduct an not required. State v. Fritz, 212 Wis. 2d 284, 569 N.W.2d 48 (Ct. App. 1997),
inquiry to determine whether the defendant waived the right to separate counsel. 96−1905.
When an actual conflict of interest is found, specific prejudice need not be shown. When a defendant proves ineffective assistance of counsel occurred at the pre-
If no inquiry is made by the trial court, the court of appeals will examine the record, trial stage, the defendant must be granted a new trial. State v. Lentowski, 212 Wis.
reversing if an actual conflict of interest is found. State v. Dadas, 190 Wis. 2d 339, 2d 849, 569 N.W.2d 758 (Ct. App. 1997), 96−2597.
526 N.W.2d 818 (Ct. App. 1994). An in−court identification subsequent to a lineup in violation of an accused’s
The prejudice prong of the test for ineffective counsel was met when counsel right to counsel is admissible only if the state carries the burden of showing that the
failed to insure that a defense witness would appear without shackles. State v. in−court identification was based on observations of the suspect other than the
Tatum, 191 Wis. 2d 548, 530 N.W.2d 407 (Ct. App. 1995). lineup. State v. McMorris, 213 Wis. 2d 156, 570 N.W.2d 384 (1997), 95−2052.
A suspect’s reference to an attorney who had previously or is presently represent- A postconviction hearing pursuant to State v. Machner, 92 Wis. 2d 797, to pre-
ing the suspect in another matter is not a request for counsel requiring the cessation serve the testimony of trial counsel is required in every ineffective assistance of
of questioning. State v. Jones, 192 Wis. 2d 78, 532 N.W.2d 79 (1995). counsel case. State v. Curtis, 218 Wis. 2d 550, 582 N.W.2d 409 (Ct. App. 1998),
The right to counsel and right to remain silent are the defendant’s. An attorney, 96−2884.
not requested by the defendant, could not compel the police to end questioning by Having disputed relevant portions of the presentence investigation at the sen-
stating that no questioning was to take place outside his presence. State v. Jones, tencing hearing, it was trial counsel’s duty to see that the disputes were fully
192 Wis. 2d 78, 532 N.W.2d 79 (1995). resolved by a proper hearing. Failure to do so constituted ineffective assistance of

counsel. State v. Anderson, 222 Wis. 2d 403, 588 N.W.2d 75 (Ct. App. 1998), Absent waiver, a trial court’s communication with a deliberating jury in the
97−3070. absence of the defendant and defense counsel violates the right to be present at trial
Whether a defendant’s motion for substitution of counsel, with an accompanying and to have counsel at every stage that the defendant may need aid with legal prob-
request for a continuation, should be granted depends on the balancing of several lems. A violation is subject to harmless error analysis. State v. Koller, 2001 WI
interests. State v. Wanta, 224 Wis. 2d 679, 592 N.W.2d 645 (Ct. App. 1999), App 253, 248 Wis. 2d 259, 635 N.W.2d 838, 99−3084. See also State v. Anderson,
98−0318. 2006 WI 77, 291 Wis. 2d 673, 717 N.W.2d 74, 04−2010.
A defendant’s prejudicial deprivation of appellate counsel, be it the fault of the Forfeiture of the right to counsel cannot occur simply because the effect of the
attorney or the appellate court, is properly remedied by a petition for habeas corpus defendant’s conduct is to frustrate the orderly and efficient progression of the case.
in the supreme court. State ex rel. Fuentes v. Court of Appeals, 225 Wis. 2d 446, The defendant must also have the purpose of causing that effect. Forfeiture, by
593 N.W.2d 48 (1999), 98−1534. action or conduct, is subject to the same rules as when a defendant informs the court
A defendant who alleges counsel was ineffective by failing to take certain steps that he or she wishes to proceed without counsel, and the court must determine
must show with specificity what the action, if taken, would have revealed and how whether the defendant is competent to proceed without an attorney. State v. Cole-
the action would have affected the outcome. State v. Byrge, 225 Wis. 2d 702, 594 man, 2002 WI App 100, 253 Wis. 2d 693, 644 N.W.2d 283, 01−2201.
N.W.2d 388 (Ct. App. 1999), 97−3217. For a knowing and voluntary waiver of counsel on direct appeal, the defendant
When defense counsel has appeared for and represented the state in the same must be aware of: 1) the rights to an appeal, to the assistance of counsel for the
case in which he or she later represents the defendant and no objection was made appeal, and to opt for a no−merit report; 2) the dangers and disadvantages of pro-
at trial, to prove a violation of the right to effective counsel, the defendant must ceeding pro se; and 3) the possibility that if appointed counsel is permitted to with-
show that counsel converted a potential conflict of interest into an actual conflict draw, successor counsel may not be appointed. The necessary colloquy may be
by knowingly failing to disclose the attorney’s former prosecution of the defendant accomplished by written communications with the defendant, initiated either by
or representing the defendant in a manner that adversely affected the defendant’s the court or by counsel seeking to withdraw. State v. Thornton, 2002 WI App 294,
interests. State v. Love, 227 Wis. 2d 60, 594 N.W.2d 806 (1999), 97−2336. See 259 Wis. 2d 157, 656 N.W.2d 45, 01−0726.
also State v. Kalk, 2000 WI App 62, 234 Wis. 2d 98, 608 N.W.2d 98, 99−1164. Opening a letter marked “Legal Papers” outside of an inmate’s presence may
There is a distinction between the consequences on appeal of a trial court error have violated an administrative rule, but it was not a violation of the 6th amendment
and the consequences of that same error when it is raised in an ineffective−assis- right to counsel. For the right to counsel to have an arguable application, there
tance−of−counsel context. The fact that a preserved error could lead to automatic must, as a threshold matter, be some evidence that the documents in the envelope
reversal does not mean the same result will be reached when the error was waived. were communications with an attorney. State v. Steffes, 2003 WI App 55, 260 Wis.
State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999), 98−0273.
2d 841, 659 N.W.2d 445, 02−1300.
The defendant’s assertion of the 6th amendment right to counsel was evident dur-
ing interrogation when he asked whether the police officer thought he should have When in closing argument counsel concedes guilt on a lesser count in a multiple−
an attorney and if he could call a person known to the officer to be a criminal count case, in light of overwhelming evidence on that count and in an effort to gain
defense lawyer. State v. Hornung, 229 Wis. 2d 469, 600 N.W.2d 264 (Ct. App. credibility and win acquittal on the other charges, the concession is a reasonable
1999), 99−0300. tactical decision and counsel is not deemed to have been constitutionally ineffec-
Inherent in a defendant’s choice to proceed pro se is the risk, which the defendant tive by admitting a client’s guilt contrary to the client’s plea of not guilty. State v.
knowingly assumes, that a defense not known to him or her will not be presented Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765, 01−1679.
during trial. State v. Clutter, 230 Wis. 2d 472, 602 N.W.2d 324 (Ct. App. 1999), When a court finds numerous deficiencies in a counsel’s performance, it need
99−0705. not rely on the prejudicial effect of a single deficiency if, taken together, the defi-
A defendant has a substantive due process right to enforce a plea agreement after ciencies establish cumulative prejudice. Whether the aggregated errors by counsel
the plea has been entered. Defense counsel’s failure to inform defendant of that will be enough to meet the Strickland prejudice requirement depends upon the
right or to pursue enforcement of the agreement constituted ineffective assistance totality of the circumstances at trial, not the totality of the representation provided
of counsel. State v. Scott, 230 Wis. 2d 643, 602 N.W.2d 926 (Ct. App. 1999), to the defendant. State v. Thiel, 2003 WI 111, 264 Wis. 2d 571, 665 N.W.2d 305,
98−2109. 01−1589.
The lack of legal expertise is an impermissible basis on which to deny a request Under Dean a trial court is only obligated to advise a defendant of the right to
to represent oneself. State v. Oswald, 2000 WI App 3, 232 Wis. 2d 103, 606 counsel. The trial court is not required to conduct a colloquy that includes specific
N.W.2d. 238, 97−1219. advice to a defendant that the right to appointed counsel is broader than the right
On administrative appeal a probationer may be assisted by counsel, but there is to counsel provided by the state public defender and includes the right to counsel
no right to appointed counsel or effective assistance of counsel. State ex rel. Men- appointed by the court and paid for by the county. State v. Drexler, 2003 WI App
tek v. Schwarz, 2000 WI App 96, 235 Wis. 2d 143, 612 N.W.2d 746, 99−0182. See 169, 266 Wis. 2d 438, 669 N.W.2d 182, 02−1313.
also Mentek v. Schwarz, 2001 WI 32, 242 Wis. 2d 94, 624 N.W.2d 150. 99−0182. No law requires that a motion to withdraw be filed any time an attorney
When a person who has been formally charged with a crime has retained counsel appointed by the public defender terminates his or her postconviction/appellate
to represent him or her on that charge and the attorney has informed police of the representation of a defendant. Counsel for the defendant did not render ineffective
representation and that they are not to question the accused, the accused need not assistance by closing his file without first obtaining court permission to withdraw
specifically “invoke” the right to counsel. In that case, police must assume that the or otherwise seeking a contemporaneous judicial determination that his client had
accused does not intend to waive the right to counsel and may not question the knowingly waived either the right to appeal or the right to counsel. Ford v. Holm,
accused in the absence of the attorney. State v. Dagnall, 2000 WI 82, 236 Wis. 2d 2004 WI App 22, 269 Wis. 2d 810, 676 N.W.2d 500, 02−1828.
339, 612 N.W.2d 680, 98−2746. Montejo, 556 U.S. ___, effectively overrules Dag- An attorney may not substitute narrative questioning for the traditional question
nall. State v. Forbush, 2010 WI App 11, 323 Wis. 2d 258, 779 N.W.2d 476, and answer format unless counsel knows that the client intends to testify falsely.
08−3007. Absent the most extraordinary circumstances, such knowledge must be based on
A defendant’s unusual conduct or beliefs do not necessarily establish incompe- the client’s expressed admission of intent to testify untruthfully. While the defen-
tence for purposes of self−representation. Although a defendant may exhibit dant’s admission need not be phrased in magic words, it must be unambiguous and
beliefs that are out of the ordinary and make references that may antagonize jurors, directly made to the attorney. State v. McDowell, 2004 WI 70, 272 Wis. 2d 488,
that does not reflect a mental defect that prevents self−representation. State v. 681 N.W.2d 500, 02−1203.
Ruszkiewicz, 2000 WI App 125, 237 Wis. 2d 441, 613 N.W.2d 893, 99−1198. When a defendant informs counsel of the intention to testify falsely, the attor-
Except when charges have been filed in a closely−related case derived from the ney’s first duty shall be to attempt to dissuade the client from the unlawful course
same factual predicate, the 6th amendment right to counsel is offense specific and of conduct. The attorney should then consider moving to withdraw from the case.
attaches to a particular offense only after adversary proceedings are commenced. If the motion to withdraw is denied and the defendant insists on committing perjury,
The 6th amendment does not not prohibit the interrogation of a defendant in regard counsel should proceed with the narrative form of questioning, advising the defen-
to a murder in the absence of counsel retained in a bail jumping case. State v. Bad- dant beforehand of what that entails and informing opposing counsel and the circuit
ker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.W.2d 142, 99−2943. court of the change of questioning style prior to use of the narrative. State v. McDo-
In making its separate determination of whether a defendant is indigent for pur- well, 2004 WI 70, 272 Wis. 2d 488, 681 N.W.2d 500, 02−1203.
poses of court−appointed counsel, the trial court should consider federal poverty An alleged violation of the requirements of Klessig, 211 Wis. 2d 194, can form
guidelines. If a defendant has no assets and an income well below the poverty level, the basis of a collateral attack as long as the defendant makes a prima facie showing
the trial court should set forth why it determined that the defendant could afford that he or she did not knowingly, intelligently, and voluntarily waive his or her con-
counsel. State v. Nieves−Gonzales, 2001 WI App. 90, 242 Wis. 2d 782, 625 stitutional right to counsel, which shifts the burden to prove that the defendant val-
N.W.2d 913, 00−2138. idly waived his or her right to counsel to the state. The state may elicit testimony
An indigent sexually violent person is constitutionally entitled to assistance of from the defendant at an evidentiary hearing in an attempt to meet its burden and,
counsel in bringing a first appeal as of right from a denial of his or her petition for in turn, the defendant may not raise the 5th amendment privilege against testifying.
supervised release. State ex rel. Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, 03−1728.
627 N.W.2d 881, 99−3354.
When a defendant seeks to proceed pro se, the circuit court undertakes a 2−part
There was ineffective assistance of counsel when the notice of appeal for the
denial of a ch. 980 petition for supervised release was filed one day late in circuit inquiry, ensuring that the defendant: 1) has knowingly, intelligently, and voluntar-
court. Under the U.S. Supreme Court’s decisions in Douglas v. California, 372 ily waived the right to counsel; and 2) is competent to proceed pro se. The record
U.S. 353 (1963) and Anders v. California, 386 U.S. 738 (1967) the court of appeals must demonstrate an identifiable problem or disability that may prevent a defend-
could not conduct an independent review for error when the individual lacked ant from making a meaningful defense. The circuit court need not always make an
requested representation. State ex rel. Seibert v. Macht, 2001 WI 67, 244 Wis. 2d express finding as to which specific problem or disability prevented a defendant
378, 627 N.W.2d 881, 99−3354. from being able to meaningfully represent himself or herself. State v. Marquardt,
Absent a showing of prejudice to their defense, misdemeanants were not denied 2005 WI 157, 286 Wis. 2d 204, 705 N.W.2d 878, 04−1609.
effective counsel when their attorneys failed to object to the 6−person jury statute A deaf defendant who was shackled during trial and sentencing had the burden
that was found unconstitutional in State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d to show that he in fact was unable to communicate, not that he theoretically might
171, (1998), 97−0885. State v. Franklin, 2001 WI 104, 245 Wis. 2d 582, 629 have had such difficulty. State v. Russ, 2006 WI App 9, 289 Wis. 2d 65, 709 N.W.2d
N.W.2d 289, 99−0743. 483, 04−2869.
A reviewing court is not required to view defense counsel’s subjective testimony A defendant’s constitutional right to effective representation for the purpose of
as dispositive of an ineffective assistance claim. The testimony is simply evidence exercising the right to directly appeal a conviction did not require postconviction
to be considered along with other evidence in the record that a court will examine counsel to offer the defendant the option of a “partial no−merit” report on any
in assessing counsel’s overall performance. State v. Kimbrough, 2001 WI App 138, potential issues remaining after the defendant declined for strategic reasons to pur-
246 Wis. 2d 648, 630 N.W.2d 752, 00−2133. sue an issue having arguable merit. The U.S. Constitution requires only that “an

indigent’s appeal will be resolved in a way that is related to the merit of that appeal.” a person offers to assist the police, the police need not try to stop the person from
Ford v. Holm, 2006 WI App 176, 296 Wis. 2d 119, 722 N.W. 2d 609, 02−1828. providing assistance. As long as the police do nothing to direct or control or involve
While courts sometimes can override a defendant’s choice of counsel when themselves in the questioning of a person in custody by a private citizen, such ques-
deemed necessary, nothing requires them to do so. Requiring a court to disqualify tioning does not violate the 5th or 6th amendments. State v. Lewis, 2010 WI App
an attorney because of a conflict of interest would infringe upon the defendant’s 52, 324 Wis. 2d 536, 781 N.W.2d 730, 09−0429.
right to retain counsel of his choice and could leave the accused with the impression Klessig is the controlling authority for determining whether a defendant validly
that the legal system had conspired against him or her. State v. Demmerly, 2006 waived the right to counsel. However, when the circuit court failed to engage a
WI App 181, 296 Wis. 2d 153, 722 N.W. 2d 585, 05−0181. defendant in the 4 lines of inquiry as prescribed in Klessig but determined that two
Generally, a defendant who validly waives the right to conflict−free representa- of the four lines of inquiry were not satisfied, the circuit court did not commit auto-
tion also waives the right to claim ineffective assistance of counsel based on the matic error requiring a new trial because the defendant could not have validly
conflict, although there may be instances in which counsel’s performance is defi- waived his right to counsel. State v. Imani, 2010 WI 66, 326 Wis. 2d 179; 786
cient and unreasonably so even in light of the waived conflict of interest. State v. N.W.2d 40, 08−1521.
Demmerly, 2006 WI App 181, 296 Wis. 2d 153, 722 N.W. 2d 585, 05−0181. Nothing bars a defendant from requesting substitution of counsel, nothing bars
It is recommended, if not required, that circuit courts take certain steps to deter- the public defender from choosing to make substitute counsel available, and noth-
mine whether a defendant has forfeited the right to counsel: 1) provide explicit ing bars a court from granting such a request, but a court is not required by the 6th
warnings that, if the defendant persists in specific conduct, the court will find that amendment to the U.S. Constitution or by Article I, Section 7 of the Wisconsin Con-
the right to counsel has been forfeited; 2) engage in a colloquy indicating that the stitution to do so solely because a defendant requests it. State v. Jones, 2010 WI
defendant has been made aware of the difficulties and dangers inherent in self−rep- 72, 326 Wis. 2d 380, ___ N.W.2d ___, 08−2342.
resentation; 3) make a clear ruling when the court deems the right to counsel to have A preliminary hearing to determine probable cause for detention pending further
been forfeited; and 4) make factual findings to support the court’s ruling. State v. proceedings is not a “critical stage” in a prosecution requiring appointed counsel.
McMorris, 2007 WI App 231, 306 Wis. 2d 79, 742 N.W.2d 322, 06−0772. Gerstein v. Pugh, 420 U.S. 103.
It would be unreasonable to require a circuit court to engage in a colloquy to The state may not force a lawyer upon a defendant who intelligently insists upon
ensure that the defendant deliberately relinquished the right to counsel in circum- conducting his or her own defense. Faretta v. California, 422 U.S. 806.
stances where the defendant will verbally insist he or she did not. In cases in which The right to counsel includes the right to make a closing summary of evidence
the defendant’s words are inconsistent with the defendant’s conduct, such a to the trier of fact. Herring v. New York, 422 U.S. 853.
colloquy would be farcical. State v. McMorris, 2007 WI App 231, 306 Wis. 2d 79, The right to counsel includes the right to consult with an attorney during a trial
742 N.W.2d 322, 06−0772. recess. Geders v. United States, 425 U.S. 80.
Although an indigent defendant does not have the right to pick his or her trial
lawyer, the indigent defendant is entitled to a lawyer with whom he or she can com- Prisoners facing disciplinary charges that also constitute crimes have no right to
municate. The ability−to−communicate assessment is left to the reasoned discre- counsel at the disciplinary hearing. Baxter v. Palmigiano, 425 U.S. 308.
tion of the trial court. The court must make sufficient inquiry to ensure that a defen- When the defendant’s right to counsel was violated by a corporeal identification
dant is not cemented to a lawyer with whom full and fair communication is conducted in court without counsel, the prosecution could not introduce identifica-
impossible; mere conclusions, unless adequately explained, will not fly. State v. tion evidence even though the identification had an independent source. Moore v.
Jones, 2007 WI App 248, 306 Wis. 2d 340, 742 N.W.2d 341, 07−0226. Illinois, 434 U.S. 220 (1977).
There is no 6th amendment effective assistance of counsel right to subpoena The right to counsel was not violated when a permissible jury instruction,
police reports and other non−privileged materials prior to a preliminary examina- intended for the defendant’s benefit, was given over defense counsel’s objections.
tion. State v. Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746 N.W.2d 457, 06−1826. Lakeside v. Oregon, 435 U.S. 333 (1978).
A lawyer’s failure to investigate is not deficient performance if he or she reason- Whenever the trial court improperly requires joint representation over a timely
ably concludes, based on facts of record, that any investigation would be mere objection, reversal is automatic. Holloway v. Arkansas, 435 U.S. 475 (1978).
wheel−spinning and fruitless. When there is reason to believe that pursuing certain An indigent defendant is not entitled to appointed counsel when charged with an
investigations would be fruitless or even harmful, counsel’s failure to pursue those offense for which imprisonment is authorized but not imposed. Scott v. Illinois,
investigations may not later be challenged as unreasonable. State v. Walker, 2007 440 U.S. 367 (1979).
WI App 142, 302 Wis. 2d 735, 735 N.W.2d 582, 06−0562. Reversed on other In order to demonstrate a violation of the right to counsel, the defendant must
grounds, State v. Walker, 2008 WI 34, 308 Wis. 2d 666, 747 N.W.2d 673, 06−0562. establish that an actual conflict of interest adversely affected the counsel’s perfor-
Wisconsin affords a convicted person the right to postconviction counsel. It mance. Cuyler v. Sullivan, 446 U.S. 335 (1980).
would be absurd to suggest that a person has a right to counsel at trial and a right
to counsel on appeal, but no right to the assistance of counsel at a postconviction The government violated the defendant’s right to counsel by placing a paid infor-
proceeding in the circuit court, which is often the precursor to and augments the mant in the same cell who deliberately elicited incriminating statements. United
record for an appeal. State v. Peterson, 2008 WI App 140, 314 Wis. 2d 192, 757 States v. Henry, 447 U.S. 264 (1980).
N.W.2d 834, 07−1867. When the right to counsel was infringed but no prejudice to the defendant was
A defendant does not have the right to be represented by: 1) an attorney he or she shown, the court erred in dismissing indictment. United States v. Morrison, 449
cannot afford; 2) an attorney who is not willing to represent the defendant; 3) an U.S. 361 (1981).
attorney with a conflict of interest; or 4) an advocate who is not a member of the Since a criminal defendant has no constitutional right to counsel to pursue a dis-
bar. State v. Peterson, 2008 WI App 140, 314 Wis. 2d 192, 757 N.W.2d 834, cretionary state appeal, the defendant could not be deprived of effective counsel by
07−1867. counsel’s failure to timely file an application for certiorari. Wainwright v. Torna,
The circuit court’s decision to remove counsel of choice is discretionary. The 455 U.S. 586 (1982).
court does not have unfettered freedom to deprive a defendant of retained counsel. The right to counsel does not guarantee a “meaningful attorney−client relation-
Whether removal for conflict was proper rests on whether the court balanced the ship.” Morris v. Slappy, 461 U.S. 1 (1983).
defendant’s right to be represented by retained counsel against the court’s interest Counsel appealing a conviction need not present every nonfrivolous issue
in the appearance of fairness and diffusing what it characterized as a potential con- requested by the defendant. Jones v. Barnes, 463 U.S. 745 (1983).
flict. State v. Peterson, 2008 WI App 140, 314 Wis. 2d 192, 757 N.W.2d 834, Without surrounding circumstances making it unlikely that the defendant
07−1867. received effective assistance of counsel, a claim of ineffective assistance must be
When making a determination whether to allow the defendant’s counsel of supported by demonstrating specific errors made by trial counsel. U.S. v. Cronic,
choice to participate, the circuit court must balance the defendant’s right to select 466 U.S. 648 (1984).
counsel against the public’s interest in the prompt and efficient administration of
justice. Several factors assist the court in balancing the relevant interests, for exam- To support a claim of ineffective assistance of counsel, the defendant must show
ple: the length of delay requested; whether competent counsel is presently avail- a probability, sufficient to undermine confidence in the outcome, that but for coun-
able and prepared to try the case; whether prior continuances have been requested sel’s unprofessional errors, the result of the proceeding would have been different.
and received by the defendant; the inconvenience to the parties, witnesses and the Strickland v. Washington, 466 U.S. 668 (1984).
court; and whether the delay seems to be for legitimate reasons or whether its pur- Indigent inmates held in administrative segregation during the investigation of
pose is dilatory. State v. Prineas, 2009 WI App 28, 316 Wis. 2d 414, 766 N.W.2d a prison murder were not entitled to counsel prior to the initiation of adversary judi-
206, 07−1982. cial proceedings against them. U.S. v. Gouveia, 467 U.S. 180 (1984).
A defendant must clearly and unequivocally make a declaration in order to An accused’s postrequest responses to further interrogation may not be used to
invoke the right to self−representation. A trial court has no duty to advise a defend- cast retrospective doubt on the clarity of an initial request for counsel. Smith v. Illi-
ant of the right to self−representation prior to an invocation. State v. Darby, 2009 nois, 469 U.S. 91 (1984).
WI App 50, 317 Wis. 2d 478, 766 N.W.2d 770, 08−0935. Due process guarantees a criminal defendant the effective assistance of counsel
Historically, Wisconsin’s Constitution has not provided greater protection than on a first appeal as of right. Evitts v. Lucey, 469 U.S. 387 (1985).
the United States Constitution to a charged defendant’s right to an attorney. Begin- The right to assistance of counsel wasn’t violated when an attorney refused to
ning with Dagnall, 2000 WI 82, Wisconsin courts, based on the 6th amendment, cooperate with the defendant in presenting perjured testimony at trial. Nix v.
not the Wisconsin Constitution, interpreted the right to an attorney to prohibit Whiteside, 475 U.S. 157 (1986).
interrogation of charged and represented defendants outside the attorney’s pres- Because an individual has no underlying constitutional right to appointed coun-
ence. In Montejo, 556 U.S. ___, the U.S. Supreme Court held to the contrary: sel in state collateral postconviction proceedings, the individual may not insist
police may interrogate a defendant charged with a crime who waives the right to upon implementation of Anders v. California, 386 U.S. 738 (1967), procedures.
an attorney. That holding is the law not only under the U.S. Constitution, but under Pennsylvania v. Finley, 481 U.S. 551 (1987).
the Wisconsin Constitution as well. State v. Forbush, 2010 WI App 11, 323 Wis.
2d 258, 779 N.W.2d 476, 08−3007. Though the trial court must recognize the presumption that a defendant is entitled
The fact that the government might know an informant hopes to receive a benefit to his or her counsel of choice, the presumption is overcome by actual conflict and
as a result of providing information does not translate into an implicit agreement a serious potential for actual conflict. Wheat v. United States, 486 U.S. 153 (1988).
between the government and the informant if the informant is thereafter placed into The right to counsel was not violated by the court’s instruction to the defendant
an environment where incriminating information can be obtained. If there is hope, that he not confer with his attorney during a 15 minute recess between the defen-
and nothing else, then the informant cannot be construed to be a government agent dant’s direct and cross−examination. Perry v. Leeke, 488 U.S. 272, 102 L. Ed. 2d
eliciting a statement in violation of the 6th amendment right to counsel. State v. 624 (1989).
Lewis, 2010 WI App 52, 324 Wis. 2d 536, 781 N.W.2d 730, 09−0429. The sixth amendment right to counsel is offense specific. An accused’s invoca-
The police do not have a duty to bar charged defendants’ visits with potential tion of this right during a judicial proceeding did not constitute an invocation of the
informants; indeed such a requirement would be unfair to prisoners. Also, when right to counsel under Miranda arising from the 5th amendment guarantees against

self incrimination in regard to police questioning concerning a separate offense. Jurors are not necessarily prejudiced by reason of having sat as jurors at the same
McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158 (1991). term on similar cases when the state’s witnesses were the same, but it is better not
An uncounseled misdemeanor conviction, valid because no prison term was to use the same jurors. State v. Boutch, 60 Wis. 2d 397, 210 N.W.2d 751.
imposed, is also valid when used to enhance punishment upon a subsequent convic- The absence of persons of the defendant’s race on the jury panel is not ipso facto
tion. Nichols v. U.S., 511 U.S. 738, 128 L. Ed. 2d 745 (1994). evidence of prejudice. Jones v. State, 66 Wis. 2d 105, 223 N.W.2d 889.
To void a conviction due to a 6th amendment violation when a trial court has A defendant, having been found competent to stand trial, must necessarily have
failed to inquire into a potential conflict of interest that the court knew or should possessed the intellectual capacity to waive the right to a jury trial. Norwood v.
have known of, the defendant must establish that the conflict adversely affected State, 74 Wis. 2d 343, 246 N.W.2d 801.
counsel’s performance. Failure of the trial court to inquire into the conflict did not A jury must unanimously find participation in a crime, but the jury need not
reduce the defendant’s burden of proof. Mickens v. Taylor, 535 U.S. 162, 152 L. unanimously agree whether defendant: 1) directly committed crime; 2) aided and
Ed. 2d 291 (2002). abetted its commission; or 3) conspired with another to commit it. Holland v. State,
The 6th amendment right to counsel of choice commands, not that a trial be fair, 91 Wis. 2d 134, 280 N.W.2d 288 (1979).
but that a particular guarantee of fairness be provided, to wit, that the accused be Unanimity of criminal verdicts is discussed. Jackson v. State, 92 Wis. 2d 1, 284
defended by the counsel he or she believes to be best. When that right is violated N.W.2d 685 (Ct. App. 1979).
because the deprivation of counsel is erroneous, no additional showing of prejudice Excusing Native Americans from a jury without individual examination denied
is required to make the violation complete, and the violation is not subject to harm- the Native American defendant a trial by an impartial jury. State v. Chosa, 108 Wis.
less−error analysis. United States v. Gonzalez−Lopez, 548 U.S. 140, 165 L. Ed. 2d 2d 392, 321 N.W.2d 280 (1982).
409, 126 S. Ct. 2557 (2006).
The Constitution does not forbid a state to insist that the defendant proceed to The verdict was unanimous in a battery case even though the jury was not
trial with counsel when the state court found the defendant mentally competent to required to specify whether the battery occurred when the defendant threw an
stand trial if represented by counsel but not mentally competent to conduct that trial object at the victim or during an ensuing fistfight. State v. Giwosky, 109 Wis. 2d
himself. Indiana v. Edwards, 554 U.S. 164, 171 L. Ed. 2d 345, 128 S. Ct. 2379 446, 326 N.W.2d 232 (1982).
(2008). The verdict was unanimous in a rape case even though the jury was not required
The right to counsel applies at the first appearance before a judicial officer at to specify whether the sexual assault was vaginal or oral. State v. Lomagro, 113
which a defendant is told of the formal accusation against him or her and restric- Wis. 2d 582, 335 N.W.2d 583 (1983).
tions are imposed on his or her liberty. Attachment of the right does not require that When the accused refused to participate in the trial, the court erred by failing to
a public prosecutor as distinct from a police officer be aware of that initial proceed- inform the accused of the right to be present at trial, to waive that right, and to
ing or involved in its conduct. Rothgery v. Gillespie County, 554 U.S. 191, 171 L. reclaim it at any time. State v. Haynes, 118 Wis. 2d 21, 345 N.W.2d 892 (Ct. App.
Ed. 2d 366, 128 S. Ct. 2578 (2008). 1984).
Michigan v. Jackson, 475 U.S. 625, which provided that if police initiate A waiver of the right to a jury trial is effective if the defendant understands the
interrogation after the defendant’s assertion of the right to counsel, any waiver of basic purpose and function of a jury trial. Trial courts are prospectively ordered to
the defendant’s right to counsel for that police−initiated interrogation is invalid, is advise defendants of the unanimity requirement before accepting a waiver. State
overruled. Courts are not required to presume that such a waiver is invalid under v. Resio, 148 Wis. 2d 687, 436 N.W.2d 603 (1989).
those circumstances. Montejo v. Louisiana, 556 U.S. ___, S. Ct. 2079, 173 L. Ed. A defendant has the right to a jury determination on each element of a charged
2d 955 (2009). offense. The right can be waived only by the defendant personally on the record.
A defendant’s incriminating statement to a jailhouse informant, concededly elic- State v. Villarreal, 153 Wis. 2d 323, 450 N.W.2d 519 (Ct. App. 1989).
ited in violation of the 6th amendment right to counsel, was admissible at trial to Once the defendant makes a prima facie showing that the prosecutor used
impeach the defendant’s conflicting statement. Kansas v. Ventris 556 U.S. ___, 129 peremptory challenges in a purposefully discriminatory manner, the burden shifts
S. Ct. 618; 172 L. Ed. 2d 454 (2009). to the prosecution to provide a neutral explanation for challenging the jurors. Bat-
Counsel has an obligation to advise a defendant that a guilty plea will result in son v. Kentucky, 476 U.S. 79 (1986) is discussed. State v. Walker, 154 Wis. 2d 158,
the defendant’s deportation from this country. Advice regarding deportation is not 453 N.W.2d 127 (1990).
categorically removed from the ambit of the 6th amendment right to counsel. Law enforcement officers should not be automatically excused for cause from
When the deportation consequence is truly clear, the duty to give correct advice is a jury pool on the grounds of implied bias. State v. Louis, 156 Wis. 2d 470, 457
equally clear. Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473; 176 L. Ed. 2d N.W.2d 484 (1990). But for a review of this case to apply new terminology regard-
284 (2010). ing juror bias, see State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999),
When postconviction counsel failed to assert a claim of ineffective assistance of 97−2702.
trial counsel in a postconviction motion under s. 974.02, the defendant’s opportu-
nity to argue that claim on direct appeal was foreclosed. The appropriate forum for Waiver of a jury trial must be made by affirmative action of the defendant. Nei-
asserting ineffective assistance of postconviction counsel for failure to raise inef- ther counsel nor the court may waive it on the defendant’s behalf. If the defendant
fective assistance of trial counsel was in a collateral motion under s. 974.06. Page has not personally waived the right, the proper remedy is a new trial, not a postcon-
v. Frank, 343 F.3d 901 (2003). viction hearing. State v. Livingston, 159 Wis. 2d 561, 464 N.W.2d 839 (1991).
Right to counsel; repayment of cost of court−appointed counsel as a condition A juvenile’s right to a jury trial is purely statutory. In Interest of R.H.L. 159 Wis.
of probation. 56 MLR 551. 2d 653, 464 N.W.2d 848 (Ct. App. 1990).
McNeil v. Wisconsin: Blurring a Bright Line on Custodial Interrogation. 1992 Under rare circumstances, a jury instruction creating a conclusive presumption
WLR 1643. regarding an element of a crime may be harmless error. State v. Kuntz, 160 Wis.
2d 722, 467 N.W.2d 531 (1991).
How do You Get a Lawyer Around Here? The Ambiguous Invocation of a
Defendant’s Right to Counsel under Miranda v. Arizona? 79 MLR 1041 (1997). Kinship to a person who has been criminally charged or convicted may constitute
a legitimate racially−neutral reason for striking a member of the jury panel. State
JURY TRIAL AND JUROR QUALIFICATIONS v. Davidson, 166 Wis. 2d 35, 479 N.W.2d 181 (Ct. App. 1991).
NOTE: See also the notes to s. 906.06 for decisions relating to overturning Unanimity requirements where multiple occurrences of multiple acts are
verdicts due to juror misconduct. charged are discussed. State v. Marcum, 166 Wis. 2d 908, 480 N.W.2d 545 (Ct.
Contradictory testimony of different state witnesses does not necessarily cancel App. 1992).
the testimony and render it unfit as a basis for a conviction. The determination of Prospective jurors related to a state witness by blood or marriage to the third
credibility and the weight to be accorded the testimony is a jury function, and the degree must be struck from the jury panel. State v. Gesch, 167 Wis. 2d 660, 482
jury may accept or reject the inconsistent testimony, even under the beyond a rea- N.W.2d 99 (1992). But for a review of this case to apply new terminology regarding
sonable doubt burden of proof. Embry v. State, 46 Wis. 2d 151, 174 N.W.2d 521. juror bias see State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97−2702.
A resident of Menominee county may properly be tried by a jury drawn from the A defendant cannot show jury prejudice unless the exhaustion of peremptory
Shawano−Menominee district. Article IV, sec. 23, is not violated by using district− challenges left a jury that included an objectionable or incompetent member. State
based jury lists. Pamanet v. State, 49 Wis. 2d 501, 182 N.W.2d 459. v. Traylor, 170 Wis. 2d 393, 489 N.W.2d 626 (Ct. App. 1992).
When 2 alternate jurors in a murder trial made remarks critical of court proce- When the jury is sworn during the trial but prior to deliberations, a mistrial is not
dures and the defense attorney, but were removed prior to the time the case was sub- warranted in the absence of prejudice. State v. Block, 170 Wis. 2d 676, 489 N.W.2d
mitted to the jury, a showing of probable prejudice was required for a mistrial to 715 (Ct. App. 1992).
be ordered. Shelton v. State, 50 Wis. 2d 43, 183 N.W.2d 87. A defendant has the right to have jurors individually polled on their verdict.
Asking an improper question that is not answered is not grounds for reversal, Reassembling and polling the jury 51 days after the verdict was rendered was harm-
especially when the trial court instructs the jury to disregard the question and to less error. State v. Coulthard, 171 Wis. 2d 573, 492 N.W.2d 329 (Ct. App. 1992).
draw no inferences therefrom. The instruction is presumed to efface any possible When the jury is presented with evidence of more than one crime, the verdict
prejudice resulting from asking the question. Taylor v. State, 52 Wis. 2d 453, 190 must be unanimous as to each crime. To sustain a conviction when alternative
N.W.2d 208. methods of proof resting upon different evidentiary facts are presented to the jury,
The trial court did not err in failing to declare a mistrial because of a statement the evidence must be sufficient to convict beyond a reasonable doubt upon both of
made by the prosecutor in closing argument, challenged as improper because the the alternative modes of proof. State v. Chambers, 173 Wis. 2d 237, 496 N.W.2d
prosecutor expressed his opinion as to defendant’s guilt, where it neither could be 191 (Ct. App. 1992).
said that the statement was based on sources of information outside the record, nor The “clearly erroneous” standard applies to all steps under the Batson, 476 U.S.
expressed the prosecutor’s conviction as to what the evidence established. State 79, analysis made by a trial court in determining whether a peremptory challenge
v. McGee, 52 Wis. 2d 736, 190 N.W.2d 893. was discriminatory. State v. Lopez, 173 Wis. 2d 724, 496 N.W.2d 617 (Ct. App.
When the prosecutor stated in opening remarks that the defendant refused to be 1992).
fingerprinted but failed to introduce testimony to this effect, the error was cured by The verdict of a 13 member jury panel agreed to by the defense and prosecution
proper instructions. State v. Tew, 54 Wis. 2d 361, 195 N.W.2d 615. was not invalid. State v. Ledger, 175 Wis. 2d 116, 499 N.W.2d 199 (Ct. App. 1993).
The exclusion of young persons, students, and teachers from a jury list is dis- A trial court’s comments to a deliberating jury without the presence of the defen-
cussed. If a challenge establishes discrimination, the jury list is invalid and the dant and his or her counsel violated the constitutional right to be present at trial.
defendant need not show prejudice. Brown v. State, 58 Wis. 2d 158, 205 N.W.2d The trial court should not inquire of a deliberating jury the numerical division of
566. the jury. State v. McMahon, 186 Wis. 2d 68, 519 N.W.2d 621 (Ct. App. 1994).
Rules for proving discrimination in compiling a jury list and the burden of proof A criminal defendant may not be tried by a juror who cannot comprehend testi-
are discussed. Wilson v. State, 59 Wis. 2d 269, 208 N.W.2d 134. mony. Once it is determined that a juror has missed testimony that bears on guilt

or innocence prejudice must be assumed. State v. Turner, 186 Wis. 2d 277, 521 tioned to determine objective bias. State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d
N.W.2d 148 (Ct. App. 1994). 770 (1999), 97−2702.
When polling the jury showed a unanimous verdict, no constitutional error State v. Wyss, 124 Wis. 2d 470, Louis, Gescch, State v. Messelt, 185 Wis. 2d 254,
occurred due to a failure to instruct the jury that a unanimous verdict was required. Ferron, Delgado, and State v. Broomfield, 223 Wis. 2d 465, are cases through
State v. Kircherz, 189 Wis. 2d 392, 525 N.W.2d 788 (Ct. App. 1994). which jury bias jurisprudence has evolved; where each would fall given the new
Whether a defendant is required to be shackled at trial should be determined bias terminology adopted in this case is considered. State v. Faucher, 227 Wis. 2d
based on the particular risk of violence or escape. Where the shackles cannot be 700, 596 N.W.2d 770 (1999), 97−2702.
viewed by the jury no prejudicial harm may occur. State v. Grinder, 190 Wis. 2d Veteran jurors cannot be removed solely on the basis of having served as jurors
541, 527 N.W.2d 326 (1995). in a similar case, but must be shown to have exhibited bias in the case they are called
A defendant’s presence is required during all proceedings when the jury is being to hear. It was error for the trial court not to strike 5 potential jurors who had served
selected, including in camera voir dire. However, failure to allow the defendant’s on a prior case in which the same defense was used when the jurors expressed that
presence may be harmless error. State v. David J.K. 190 Wis. 2d 726, 528 N.W.2d they would not give serious consideration to the defense. State v. Kiernan, 227 Wis.
434 (Ct. App. 1994). 2d 736, 596 N.W.2d 760 (1999), 97−2449.
A defendant is not entitled to a new trial when both the prosecution and defense
When it was conceded that a juror was sleeping, summarily foreclosing inquiry are given an equal number of peremptory strikes, even if the number is less than
into the juror’s inattentiveness was an erroneous exercise of discretion. The court provided for by statute. State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999),
must examine the length of the inattentiveness, the importance of the testimony 98−0273.
missed and whether the inattention prejudiced the defendant to the point that there There is no automatic disqualification of potential jurors who have been con-
was not a fair trial. State v. Hampton, 201 Wis. 2d 662, 549 N.W.2d 756 (Ct. App. victed of crimes. The erroneous dismissal of a prospective juror for cause does not
1996), 95−0152. constitute an additional peremptory challenge for the moving party; it is an error
The prosecutor’s motive of protecting the defendant cannot justify a peremptory subject to harmless error analysis. State v. Mendoza, 227 Wis. 2d 838, 596 N.W.2d
challenge based solely on a juror’s race. Excluding a prospective juror because of 736 (Ct. App. 1998), 97−0952.
race can never be “neutral” regardless of the prosecutor’s good faith. State v. Guer- Hansford applies retroactively only to those cases in which the issue of a six−per-
ra−Reyna, 201 Wis. 2d 751, 549 N.W.2d 779 (Ct. App. 1996), 93−3464. son jury was raised before trial. State v. Zivcic, 229 Wis. 2d 119, 598 N.W.2d 565
When there are grounds to believe the jury in a criminal case needs protection, (Ct. App. 1999), 98−0909.
a trial court may take reasonable steps to protect the identity of potential jurors. Stipulating to an element of a crime did not deny the constitutional right to a jury
Preventing references on the record to juror’s names, employment, and addresses trial when the jury was instructed on the element and the court did not resolve the
while providing the defense with copies of the juror questionnaires during voir dire issue on its own. State v. Benoit, 229 Wis. 2d 630, 600 N.W.2d 193 (Ct. App. 1999),
was within the court’s discretion. State v. Britt, 203 Wis. 2d 25, 553 N.W.2d 528 98−1531. See also Walworth County DH&HS v. Andrea L.O. 2008 WI 46, 309
(Ct. App. 1995), 95−0891. Wis. 2d 161, 749 N.W.2d 168, 07−0008.
Whether the interplay of legally correct instructions impermissibly misled a jury Deprivation of the right to be present and to have counsel present at jury selection
is to be determined based on whether there is a reasonable likelihood that a juror is subject to a harmless error analysis; there is a thin line between when reversal is
was misled. State v. Lohmeier, 205 Wis. 2d 183, 556 N.W.2d 90 (1996), 94−2187. warranted and when it is not. That a juror’s subjective bias is generally ascertained
A party defending against an allegation that peremptory strikes were used for by that person’s responses at voir dire and that the interplay between potential
discriminatory reasons must offer something more than a statement that nonpro- jurors and a defendant is both immediate and continuous are factors that weigh
hibited factors were considered. There must be a showing of a nexus between legit- against finding harmless error. State v. Harris, 229 Wis. 2d 832, 601 N.W.2d 682
imate factors and the juror who was struck. State v. Jagodinsky, 209 Wis. 2d 577, (Ct. App. 1999), 98−1091.
563 N.W.2d 188 (Ct. App. 1997), 95−1946. The defendant was not automatically entitled to a new trial when, in waiving the
A potential juror who stated he doubted the innocence of someone who would right to a jury trial, the trial court did not advise that a jury verdict must be unani-
not testify and then said he could probably set that feeling aside should have been mous. The appropriate remedy is through a postconviction motion that, as a thresh-
removed for cause under s. 805.08 (1). Failure to remove the juror forced the defen- old requirement, must contain an allegation that the defendant did not know or
dant to strike the potential juror, which violated the defendant’s right to due process. understand the rights at issue. State v. Grant, 230 Wis. 2d 90, 601 N.W.2d 8 (Ct.
State v. Ferron, 214 Wis. 2d 268, 570 N.W.2d 883 (Ct. App. 1997), 96−3425. But App. 1999), 98−2206.
for a review of this case to apply new terminology regarding juror bias see State A prospective juror who is the brother−in−law of a state witness is a relative by
v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97−2702. marriage to the 3rd degree under Gesch who be struck for cause as the relationship
A party is prohibited from striking a potential juror based on a prohibited charac- constitutes statutory bias. Failure to do so is grounds for reversal and a new trial.
teristic, even if other non−prohibited characteristics were also considered. State v. State v. Czarnecki, 231 Wis. 2d 1, 604 N.W.2d 891 (Ct. App. 1999), 98−2406.
King, 215 Wis. 2d 295, 572 N.W.2d 530 (Ct. App. 1997), 97−1509. The right to a jury trial guaranteed by art. I, ss. 5 and 7, includes the right to a
An objection that peremptory challenges were racially motivated in violation of unanimous verdict with respect to the ultimate issue of guilt or innocence. State
Basten must be made prior to the time the jury is sworn. State v. Jones, 218 Wis. v. Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, 98−0642.
2d 599, 581 N.W.2d 561 (Ct. App. 1998), 97−1002. Peremptory challenges may not be exercised, and therefore not changed, after
The use of and procedure for juror questioning of witnesses is discussed. State the parties have accepted the jury, even if the jury has not yet been sworn. State
v. Darcy N.K. 218 Wis. 2d 640, 581 N.W.2d 567 (Ct. App. 1998), 97−0458. v. Nantelle, 2000 WI App 110, 235 Wis. 2d 91, 612 N.W.2d 356, 99−2159.
Art. I, s. 7 guarantees the right to a jury of 12 in all criminal cases whether felony A party who during voir dire neither requests further questioning nor objects to
or misdemeanor. State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998), the seating of a juror may not later allege error in the trial court’s failure to act sua
97−0885. sponte in regard to a juror who may not be impartial. State v. Williams, 2000 WI
A defendant waives an objection to juror bias if no motion is made to the trial App. 123, 237 Wis. 2d 591, 614 N.W.2d 11, 99−0812.
court for removal for cause. The ultimate decision whether to make the motion is The right to a jury trial guaranteed by art. I, ss. 5 and 7 includes the right to a unan-
for counsel and not the defendant to make. State v. Brunette, 220 Wis. 2d 431, 583 imous verdict with respect to the ultimate issue of guilt or innocence. State v. Der-
N.W.2d 174 (Ct. App. 1998), 97−2111. ango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, 98−0642.
Inconvenience and inability to work during regular working hours cannot result
Failure to bring the incompleteness of an individual polling of the jury to the in bias sufficient to strike a juror for cause. State v. Guzman, 2001 WI App 54, 241
attention of the trial court constitutes waiver of any claim based on the deficiency. Wis. 2d 310, 624 N.W.2d 717, 99−2249.
State v. Brunette, 220 Wis. 2d 431, 583 N.W.2d 174 (Ct. App. 1998), 97−2111. A challenge under Batson that a peremptory strike was solely because of race
Failure to respond truthfully to voir dire questions is sufficient grounds to dis- does not require a post−verdict evidentiary hearing and must be decided based on
charge a juror during trial. Specific proof of bias is not required. State v. Williams, what the prosecutor believed at the time the strike was made. A defendant must
220 Wis. 2d 458, 583 N.W.2d 845 (Ct. App. 1998), 97−1276. show that the prosecutor intentionally misrepresented the facts that were relied on
A juror who unequivocally announced his belief that a witness would not lie, but or that the prosecutor had been told those facts but knew they were erroneous. State
also said he could remain impartial showed manifest bias that could not be v. Gregory, 2001 WI App 107, 244 Wis. 2d 65, 630 N.W.2d 711, 00−0961.
obviated. Following denial of a motion for mistrial, the defendant’s agreement to The trial court’s failure to remove a potential juror who was objectively biased,
proceed with 11 jurors did not waive the right to further address the mistrial issue. forcing the defendant to strike the potential juror with one of the peremptory strikes
State v. Faucher, 220 Wis. 2d 689, 584 N.W.2d 157 (Ct. App. 1998), 97−2702. guaranteed under s. 972.03, did not require a new trial when the defendant received
Affirmed, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97−2702. a fair trial. The harmless error test is applicable. Overturns State v. Ramos, 211 Wis.
Juror bias may be actual, implied, or inferred. Inferred bias is a factual finding 2d 12, 564 N.W.2d 328 (1997), 94−3036. State v. Lindell, 2001 WI 108, 245 Wis.
requiring evaluation of the facts and circumstances including those surrounding the 2d 689, 629 N.W.2d 223, 99−2704.
juror’s incomplete or incorrect responses to questions during voir dire. Truthful When a jury returned a verdict finding the defendant guilty of both a greater and
responses do not prevent finding inferred bias. State v. Delgado, 223 Wis. 2d 270, a lesser included offense, although the jury had been instructed that it could only
588 N.W.2d 1 (1999), 96−2194. But for a review of this case to apply new terminol- find one or the other, it was not error for the court to enter judgment on the greater
ogy regarding juror bias see State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 offense after polling the jury to confirm the result. State v. Hughes, 2001 WI App
(1999), 97−2702. 239, 248 Wis. 2d 133, 635 N.W.2d 661, 00−3176.
The terms “statutory bias,” subjective bias,” and “objective bias” are adopted as Excusing and deferring prospective jurors under s. 756.03 is one component of
the proper terms for referring to types of jury bias, replacing the terms “implied a circuit judge’s obligation to administer the jury system. The judge may delegate
bias,” “subjective bias,” and “objective bias.” State v. Faucher, 227 Wis. 2d 700, the authority to the clerk of circuit court under s. 756.03 (3). The task need not be
596 N.W.2d 770 (1999), 97−2702. performed by a judge in court or with the prospective juror present in person, and
Statutory bias refers to those situations described in s. 805.08 (1); a person falling may take place in advance of a particular trial. A defendant’s presence cannot be
within one of the descriptions there may not serve regardless of the ability to be required when the judge or clerk is acting in an administrative capacity under s.
impartial. Although s. 805.08 (1) refers to jurors who have expressed or formed 756.03. State v. Gribble, 2001 WI App 227, 248 Wis. 2d 409, 636 N.W.2d 488,
an opinion, that situation more properly qualifies as subjective bias. State v. 00−1821.
Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97−2702. Although it was error for the court to interview potential jurors outside of the
Subjective bias is revealed through the words and demeanor of the prospective presence of the prosecution, defendant, and defense counsel, the error was harm-
juror as revealed on voir dire; it refers to the juror’s state of mind. State v. Faucher, less when there was no showing that it contributed to the defendant’s conviction.
227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97−2702. State v. Tulley, 2001 WI App 236, 248 Wis. 2d 505, 635 N.W.2d 807, 00−3084.
Objective bias focuses on whether a reasonable person in the individual prospec- Absent waiver, a trial court’s communication with a deliberating jury in the
tive juror’s position could be impartial; the circuit court is particularly well posi- absence of the defendant and defense counsel violates the right to be present at trial

and to have counsel at every stage that the defendant may need aid with legal prob- for additional polling when given the opportunity to request it. State v. Raye, 2005
lems. A violation is subject to harmless error analysis. State v. Koller, 2001 WI WI 68, 281 Wis. 2d 339, 697 N.W.2d 407, 04−0770.
App 253, 248 Wis. 2d 259, 635 N.W.2d 838, 99−3084. A court has two options if a juror dissents during jury polling or assents merely
To prove a valid jury trial waiver, the circuit court must conduct a colloquy an accommodation against the juror’s conscience: return the jury for continued
designed to ensure that the defendant: 1) made a deliberate choice, absent threats deliberations or determine that further deliberations would be fruitless and grant a
or promises, to proceed without a jury trial; 2) was aware of the nature of a jury trial, mistrial. If a juror gives an ambiguous or ambivalent assent the court may question
such that it consists of a panel of 12 people who must agree on all elements of the the juror further. When initially asked by the court, “Is this your verdict?” and the
crime charged; 3) was aware of the nature of a court trial, such that the judge will juror first replied, “Can I ask a question?” and then with an unambiguous “no,” the
decide his or her guilt; and 4) had enough time to discuss the decision with counsel. court could only have granted a mistrial or returned the jury for further delibera-
State v. Anderson, 2002 WI 7, 249 Wis. 2d 586, 638 N.W.2d 301, 00−1563. tions. State v. Raye, 2005 WI 68, 281 Wis. 2d 339, 697 N.W.2d 407, 04−0770.
If the trial court fails to conduct a colloquy with the defendant regarding the An administrative assistant employed by a county district attorney’s office was
waiver of the right to a jury trial, a reviewing court may not find, based on the not objectively biased because she worked for the same entity as the prosecuting
record, that there was a valid waiver. As a remedy, the circuit court must hold an attorney. The court declines to create a per se rule that excludes potential jurors for
evidentiary hearing on whether the waiver was knowing, intelligent, and voluntary. the sole reason that they are employed by a district attorney’s Office. State v. Smith,
If the state is unable to show by clear and convincing evidence that the defendant 2006 WI 74, 291 Wis. 2d 569, 716 N.W.2d 482, 04−2035.
knowingly, intelligently, and voluntarily waived the right, the defendant is entitled A judge’s interruptions of a juror’s answers to questions regarding her agreement
to a new trial. State v. Anderson, 2002 WI 7, 249 Wis. 2d 586, 638 N.W.2d 301, with the verdict and the judge’s insistence that the form showed a unanimous ver-
00−1563. dict strongly suggested that the juror may have felt pressure and intimidation, and
A prospective juror who openly admits bias and is never questioned about his that she may have misunderstood the verdict reached in the jury room. Although
or her partiality is subjectively biased as a matter of law. State v. Carter, 2002 WI the juror expressed agreement with subsequent statements, because the juror was
App 55, 250 Wis. 2d 851, 641 N.W.2d 517, 01−2303. cut off when attempting to answer whether she found the defendant guilty or not
A jury instruction directing the jury to accept a judicially−noticed fact as true guilty, and never actually gave an answer, the juror could not be said to have found
when applied to an element of a criminal offense eliminates the jury’s opportunity the defendant guilty on count one. Consequently, the verdict was not unanimous.
to reach an independent, beyond−a−reasonable−doubt decision on that element and State v. Dukes, 2007 WI App 175, 303 Wis. 2d 208, 736 N.W.2d 215, 06−2127.
is constitutional error, although it is subject to harmless error analysis. State v. The trial court has an affirmative, sua sponte duty to inquire into the necessity
Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, 00−0541. for a defendant to wear a visible electronic security device during trial once the
Whether a defendant waived the right to have the jury determine all the elements court becomes aware of the situation. A trial court maintains the discretion to
of the crime or only some of them and whether the defendant gave up a jury trial decide whether a defendant should be restrained during a trial as long as the reasons
in lieu of a determination by the circuit court or stipulated to the elements, the justifying the restraints have been set forth in the record. It is an erroneous exercise
waiver analysis is the same. Any waiver must be made personally on the record of discretion to rely primarily upon law enforcement department procedures
by the defendant. State v. Hauk, 2002 WI App 226, 257 Wis. 2d 579, 652 N.W.2d instead of considering the risk a particular defendant poses for violence or escape.
393, 01−1668. State v. Champlain, 2008 WI App 5, 307 Wis. 2d 232, 744 N.W.2d 889, 06−2435.
If a court withholds any juror information in open court, it must both: 1) find that Whenever a defendant wears a restraint in the presence of jurors trying the case,
the jury needs protection; and 2) take reasonable precautions to avoid prejudicing the court should instruct that the restraint is not to be considered in assessing the
the defendant. When jurors’ names are withheld, the court, at a minimum, must proof and determining guilt. Counsel’s failure to object to the device constituted
make a precautionary statement to the jury that the use of numbers instead of names ineffective assistance of counsel. State v. Champlain, 2008 WI App 5, 307 Wis. 2d
should in no way be interpreted as a reflection of the defendant’s guilt or innocence. 232, 744 N.W.2d 889, 06−2435.
State v. Tucker, 2003 WI 12, 259 Wis. 2d 484, 657 N.W.2d 374, 00−3354. While the prosecutor may strike hard blows during closing argument, the prose-
An ability to understand the English language is necessary in order to satisfy the cutor’s duty is to refrain from using improper methods. Prosecutors may not ask
statutory requirements of ss. 756.02 and 756.04. If a juror cannot meet the statutory jurors to draw inferences that they know or should know are not true. State v. Weiss,
requirements the entire trial process may be nothing more than an ”exercise in futil- 2008 WI App 72, 312 Wis. 2d 382, 752 N.W.2d 372, 07−0778.
ity.” A defendant was prejudiced when a juror was was allowed to serve as a juror A demonstration of the specific bias of a juror is not needed to remove a juror
who was not qualified under the statutes and did not have a sufficient understanding from deliberations when there are 12 other jurors whose impartiality the trial court
of English so that he could meaningfully participate in the trial process. State v. does not have a concern about. The trial court properly exercised its discretion
Carlson, 2003 WI 40, 261 Wis. 2d 97, 661 N.W.2d 51, 01−1136. when it designated a juror as an alternate based on its concern regarding potential
While a limited class of errors is deemed structural, requiring automatic reversal impartiality. The trial court has a duty to ensure that the impaneled jury is an impar-
regardless of any effect on the outcome, most errors, including constitutional ones, tial one; one that is free of bias or prejudice. State v. Gonzalez, 2008 WI App 142,
are reviewed for harmlessness. Harmless error analysis applies to an erroneous 314 Wis. 2d 129, 758 N.W.2d 153, 07−2160.
jury instruction that operated as a mandatory conclusive presumption on an ele- As a matter of law, a reasonable presiding judge could not reach any other con-
ment of a penalty enhancer. State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 clusion than to excuse his mother from sitting on the jury. State v. Tody, 2009 WI
N.W.2d 765, 01−1679. 31, 316 Wis. 2d 689, 764 N.W.2d 737, 07−0400.
An accused’s right to a unanimous verdict is not violated every time a judge Presiding judges must sua sponte remove their immediate family members from
instructs a jury on a statute that presents multiple modes of commission and does the panel of potential jurors. There is too much of a risk that the situation creates
not select one among the many modes of commission. An argument that an instruc- a chilling effect on robust inquiry, inquiry that is oftentimes critical to the selection
tion leads to a constitutionally infirm verdict must address the legislature’s intent of an impartial jury. State v. Sellhausen, 2010 WI App 175, ___ Wis. 2d ___, ___
in enacting the statute and, if multiple modes of commission are found, whether the N.W.2d ___, 10−0445.
choice provided is constitutionally unacceptable. State v. Norman, 2003 WI 72,
262 Wis. 2d 506, 664 N.W.2d 97, 01−3303. In nonsummary criminal contempt proceedings, the alleged contemnor has a
A prosecutor’s knowledge that a challenged juror possessed the same name as right to a jury trial if the sentences imposed aggregate more than 6 months. Codis-
known criminals in the area, the location of a venire person’s residence when a resi- poti v. Pennsylvania, 418 U.S. 506.
dential location has some relationship to the facts of the case, failure to disclose dur- The court erred by communicating with the jury and agreeing to accept a guilty
ing voir dire any police contacts at his or her residence when research revealed such verdict “with extreme mercy” without notifying defense counsel. Rogers v. United
contacts, and employment, or unemployment status, all may be race−neutral States, 422 U.S. 35.
explanations for a peremptory strike. Individual follow−up questions on voir dire The 6th amendment secures to criminal defendants the right to be tried by an
are not required in order to strike a potential juror. State v. Lamon, 2003 WI 78, impartial jury drawn fromsources reflecting a fair cross section of the community.
262 Wis. 2d 747, 664 N.W.2d 607, 00−3403. A law exempting women an exemption from jury duty on request, resulting in their
Whether a prosecutor’s conduct during closing argument affects the fairness of low representation on panels, violated the requirement. To establish a prima facie
a trial is determined by viewing the statements in the context of the total trial. A line violation a defendant must show: 1) the group alleged to be excluded is a ‘distinc-
of demarcation is drawn where the prosecutor goes beyond reasoning from the evi- tive’ group in the community; 2) the representation of this group in venires from
dence to a conclusion of guilt and suggests the jury arrive at a verdict by considering which juries are selected is not fair and reasonable in relation to the number of such
factors other than the evidence. Argument on matters not in evidence is improper. persons in the community; and 3) this underrepresentation is due to systematic
State v. Smith, 2003 WI App 234, 268 Wis. 2d 138, 671 N.W.2d 854, 02−3404. exclusion of the group in the jury−selection process. Duren v. Missouri, 439 U.S.
There is no constitutional right to waive a jury and be tried by a judge. A prosecu- 357 (1979). See also Berghuis v. Smith, 559 U. S. ___, 176 L. Ed. 2d 249, 130 S.
tor’s decision to withhold consent to a defendant’s requested waiver of his or her Ct. 1382, (2010).
right to a jury trial, as required by statute, is not reviewable. A trial court need not When community sentiment against the accused had softened by the time of trial
justify its refusal to approve the waiver. State v. Burks, 2004 WI App 14, 268 Wis. 4 years after a heinous crime, the trial court did not commit “manifest error” in find-
2d 747, 674 N.W.2d 640, 03−0472. ing the jury as a whole was impartial. Patton v. Yount, 467 U.S. 1025 (1984).
Reinstruction that presents for the first time choices for lesser included offenses A black defendant was denied equal protection through the state’s use of
not presented in the initial instructions, if proper at all, would be a rare event, only peremptory challenges to exclude all blacks from the jury. Batson v. Kentucky, 476
done in exceptional circumstances. State v. Thurmond, 2004 WI App 49, 270 Wis. U.S. 79 (1986). See also Purkett v. Elem, 515 U.S. 1170, 132 Ed 2d 874 (1995).
2d 477, 677 N.W.2d 655, 03−0191.
When counsel fails to object under Batson to peremptory strikes on the grounds The “fair cross section” element to the right to trial by jury does not provide a
they were improperly based on race or gender, the defendant claiming harm must constitutional basis for a challenge to the prosecution’s peremptory striking of
establish that had trial counsel made the Batson objection there is a reasonable jurors on the basis of race. Holland v. Illinois, 493 U.S. 474, 107 L. Ed. 2d 905
probability that it would have been sustained and the trial court would have taken (1990).
the appropriate curative action. Discriminatory intent is a question of historical Equal protection precludes prosecutor’s use of peremptory challenge to exclude
fact. The essential inquiry is whether the prosecutor had viable neutral explana- potential jurors solely by reason of race. A criminal defendant may raise the equal
tions for the peremptory challenges. State v. Taylor, 2004 WI App 81, 272 Wis. 2d protection claim that jurors were excluded because of their race whether or not
642, 679 N.W.2d 893, 03−1509. there is racial identity between the defendant and the excluded jurors. Powers v.
The verdict of a jury must be arrived at freely and fairly. The validity of a unani- Ohio, 499 U.S. 400, 113 L. Ed. 2d 411 (1991).
mous verdict is not dependent on what the jurors agree to in the jury room, but rather When potential jurors had seen news reports about the defendant’s alleged crime,
upon what is unanimously reported in open court. The right to poll the jury is an the judge’s refusal to question those prospective jurors about the specific content
absolute right, if not waived, and its denial requires reversal. Defendants may of those reports did not violate right to an impartial jury. Mu’Min v. Virginia, 500
waive the right by failing to ask for a poll in the first instance, or by failing to ask U.S. 415, 114 L. Ed. 2d 493 (1991).

A criminal defendant is prohibited from engaging in purposeful discrimination is who caused the delay. Delay reasonably attributed to the ordinary demands of
on the basis of race in the exercise of peremptory challenges of potential jurors. the judicial system is neither chargeable to the state or defendant. A missing wit-
Georgia V. McCollum, 505 U.S. 42, 120 L. Ed. 33 (1992). ness presents a valid reason for delay. The state is charged with institutional delay
A constitutionally deficient instruction regarding proof beyond a reasonable such as when the trial court took responsibility for a delay because it had taken a
doubt can never be harmless error. Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. motion for access to the records off its calendar. State v. Williams, 2004 WI App
2d 182 (1993). 56, 270 Wis. 2d 761, 677 N.W.2d 691, 03−0603.
Gender−based peremptory strikes are barred by the equal protection clause. When filed charges are dismissed without prejudice and a second complaint sub-
J.E.B. v. Alabama ex rel. T.B. 511 U.S. 127, 128 L. Ed. 2d 89 (1994). sequently filed, the time period between the dismissal and the filing of the second
Batson established a 3−step process for the constitutional review of allegedly complaint is not included in determining whether the constitutional right to a
race−based peremptory strikes: 1) the defendant must make out a prima facie case speedy trial was violated. The right to a speedy trial is not primarily intended to pre-
by showing that the totality of the relevant facts gives rise to an inference of dis- vent prejudice to the defense caused by passage of time. That interest is protected
criminatory purpose: 2) once the defendant has made out a prima facie case, the primarily by the due process clause and by statutes of limitation. The right is to
burden shifts to the state to explain adequately the racial exclusion by offering per- minimize the possibility of lengthy incarceration prior to trial, to reduce the impair-
missible race−neutral justifications for the strikes; and 3) if a race−neutral explana- ment of liberty imposed on an accused while released on bail, and to shorten the
tion is tendered, the trial court must then decide whether the opponent of the strike disruption of life caused by arrest and the presence of unresolved criminal charges.
has proved purposeful racial discrimination. Johnson v. California, 545 U.S. 162 Once charges are dismissed, the speedy trial guarantee is no longer applicable.
L. Ed. 2d 129, 125 S. Ct. 2410 (2005). See also Miller−El v. Dretke, 545 U.S. 231, State v. Urdahl, 2005 WI App 191, 286 Wis. 2d 476, 704 N.W.2d 324, 04−3014.
162 L. Ed. 2d 196, 125 S. Ct. 2317 (2005). The defendant’s right to a public trial was violated when the courthouse doors
It was not intended that the first Batson step be so onerous that a defendant would were locked at 4:30 P.M., pursuant to county policy, and the public was denied
have to persuade the judge on the basis of all the facts, some of which are impossible access to the courtroom while he presented his case and the state presented its rebut-
for the defendant to know with certainty, that the challenge was more likely than tal. State v. Vanness, 2007 WI App 195, 06−2535.
not the product of purposeful discrimination. Instead, a defendant satisfies the Although a presumption of openness exists, the right to a public trial is not abso-
requirements of Batson’s first step by producing evidence sufficient to permit the lute. The closure of a trial is trivial and does not implicate the 6th amendment if
trial judge to draw an inference that discrimination has occurred. Johnson v. Cali- the closure does not implicate the values served by the 6th amendment: 1) to ensure
fornia, 545 U.S. 162, 162 L. Ed. 2d 129, 125 S. Ct. 2410 (2005). a fair trial; 2) to remind the prosecutor and judge of their responsibility to the
The right to exercise peremptory challenges in state court is determined by state accused and the importance of their functions; 3) to encourage witnesses to come
law. The U.S. Supreme Court has long recognized that peremptory challenges are forward; and 4) to discourage perjury. A circuit court’s exclusion of every family
not of federal constitutional dimension. States may withhold peremptory chal- member except the defendant’s mother, who did not understand English, plainly
lenges altogether without impairing the constitutional guarantee of an impartial implicated the values served by the right to a public trial. State v. Ndina, 2009 WI
jury and a fair trial. If a defendant is tried before a qualified jury composed of indi- 21, 315 Wis. 2d 653, 761 N.W.2d 612, 07−0005.
viduals not challengeable for cause, the loss of a peremptory challenge due to a state Closure of a criminal trial is justified when 4 conditions are met: 1) the party who
court’s good−faith error is not a matter of federal constitutional concern. Just as wishes to close the proceedings must show an overriding interest that is likely to
state law controls the existence and exercise of peremptory challenges, so state law be prejudiced by a public trial; 2) the closure must be narrowly tailored to protect
determines the consequences of an erroneous denial of such a challenge. Rivera that interest; 3) alternatives to closure must be considered by the trial court; and 4)
v. Illinois, 556 U.S. ___, 129 S. Ct. 1186; 173 L. Ed. 2d 483 (2009). the court must make findings sufficient to support the closure. Generally, the best
If the issue of jury bias surfaces during or before trial, it is the trial judge’s respon- course of action is for the trial judge to hold an evidentiary hearing on the issue of
sibility to conduct an adequate investigation, given the unsatisfactory character of closure, but it was not necessary under the facts of this case. State v. Ndina, 2009
an inquiry into jury bias after the trial is over and the defendant convicted. The WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, 07−0005.
question is whether, given the indications of jury bias, the judge’s inquiry was ade- Delay between arrest and indictment may deny a speedy trial without a showing
quate. Adequacy is a function of the probability of bias; the greater that probability, of actual prejudice. Dillingham v. United States, 423 U.S. 64.
the more searching the inquiry needed to make reasonably sure that an unbiased
jury is impaneled. Oswald v. Bertrand, 374 F.3d 475 (2004). A defendant may not, before trial, appeal the denial of a motion to dismiss based
on the right to a speedy trial. United States v. MacDonald, 435 U.S. 850 (1978).
State v. Louis: A Missed Opportunity to Clarify when Law Enforcement Offi-
cials May Serve as Petit Jurors in Criminal Cases. 1992 WLR 757. No right to a speedy trial arises until charges are pending. United States v. Mac
Unanimous verdict not constitutionally required in state criminal cases. John- Donald, 456 U.S. 1 (1982).
son, 1973 WLR 926. Any closure of a suppression hearing must advance an overriding interest likely
to be prejudiced. Closure must be no broader than necessary to protect that interest.
SPEEDY AND PUBLIC TRIAL The court must consider alternatives and make a finding adequate to support clo-
A defendant must demand a trial before requesting dismissal for lack of a speedy sure. Waller v. Georgia, 467 U.S. 39 (1984).
trial. When delay is caused by numerous proceedings in federal court, dismissal The time during which defendants were neither under indictment nor subjected
will be denied in the absence of any showing of prejudice. State v. Kwitek, 53 Wis. to any official restraint does not weigh toward a defendant’s speedy trial claims.
2d 563, 193 N.W.2d 682. United States v. Loud Hawk, 474 U.S. 302 (1986).
A delay of 5 weeks because witnesses were hospitalized, when the defendant The speedy−trial right is “amorphous,” “slippery,” and “necessarily relative.”
was out on bail, did not amount to a failure to receive speedy trial. Taylor v. State, There is a balancing test in which the conduct of both the prosecution and the defen-
55 Wis. 2d 168, 197 N.W.2d 805. dant are weighed. Some of the factors that courts should weigh include length of
Failure to demand a speedy trial is weighs less heavily against a defendant unrep- delay, the reason for the delay, the defendant’s assertion of the right, and prejudice
resented by counsel. Because the defendant believed the charge had been dropped, to the defendant. The attorney is the defendant’s agent when acting, or failing to
it could not be said that a speedier trial would have prevented anxiety and concern act, in furtherance of the litigation, and delay caused by the defendant’s counsel is
about the pending charges. Hipp v. State, 75 Wis. 2d 621, 250 N.W.2d 299. charged against the defendant. The same principle applies whether counsel is pri-
The speedy trial provisions of the constitution were designed to prevent oppres- vately retained or publicly assigned. Assigned counsel’s failure to move the case
sive pretrial incarceration, anxiety and concern by the accused, impairment of forward does not warrant attribution of delay to the state. However, delay resulting
defenses, and the elimination of the possibility that concurrent sentences will be from a systemic breakdown in the public defender system could be charged to the
imposed. Green v. State, 75 Wis. 2d 631, 250 N.W.2d 305. state. Vermont v. Brillon, 556 U.S. ____, 129 S. Ct. 895; 172 L. Ed. 2d 768 (2009).
The controlling case concerning the right to a speedy trial is Barker v. Wingo, 407 Following guilty plea, defendant could not raise speedy trial issue. United States
U.S. 514 (1972). A 15 month delay was not prejudicial under the facts of the case. v. Gaertner, 583 F.2d 308 (1978).
Scarbrough v. State, 76 Wis. 2d 87, 250 N.W.2d 354. The press and public have a 1st amendment right to access to attend criminal trial
A delay of 84 days between the defendant’s first court appearance and trial on which cannot be closed absent an overriding interest. 64 MLR 717 (1981).
misdemeanor traffic charges was not so inordinate as to raise a presumption of MISCELLANEOUS
prejudice. State v. Mullis, 81 Wis. 2d 454, 260 N.W.2d 696.
Mandatory closure of a hearing solely at the request of the complaining witness A defendant may waive his right to be present at a proceeding when the court
over the objection of the defendant violates the right to a public trial. Stevens v. ordered his case consolidated with another. It is not error at the start of a trial to
Manitowoc Circuit Court, 141 Wis. 2d 239, 414 N.W.2d 832 (1987). revoke bail and remand the defendant to the custody of the sheriff. Beverly v. State,
The speedy trial right attaches when the complaint and warrant are issued. A pre- 47 Wis. 2d 725, 177 N.W.2d 870.
trial determination that the right has been violated may be made only when evi- A prisoner held in Dodge County, who escaped from a hospital in another county
dence shows extraordinary circumstances justifying dismissal with prejudice. while being treated there, could be tried for the escape in Dodge County. Dolan v.
State v. Lemay, 155 Wis. 2d 202, 455 N.W.2d 233 (1990). State, 48 Wis. 2d 696, 180 N.W.2d 623.
The right to a speedy trial extends from the time of arrest or criminal charging The defendant is not prejudiced when the court amends the charge against him
up through the sentencing phase of prosecution. A defendant must show substan- to charge a lesser included offense without informing him of the nature of the
tial and demonstrable prejudice for a postconviction violation of this right to be amended charge or allowing him to plead to it. Moore v. State, 55 Wis. 2d 1, 197
found. State v. Allen, 179 Wis. 2d 67, 505 N.W.2d 801 (Ct. App. 1993). N.W.2d 820.
Whether there has been a violation of the right to a speedy trial depends on a bal- It is not a violation of the defendant’s rights if he is prosecuted by information
ancing test considering: 1) the length of delay; 2) the reason for the delay; 3) the and not by grand jury indictment. State v. Lehtola, 55 Wis. 2d 494, 198 N.W.2d 354.
defendant’s assertion of the right; and 4) prejudice to the defendant. State v. Borhe- A defendant is not entitled to be present at a conference in chambers if only ques-
gyi, 222 Wis. 2d 506, 588 N.W.2d 89 (Ct. App. 1998), 98−0567. tions of law or preliminary matters of procedure are discussed. Leroux v. State, 58
The speedy trial clause does not apply to the period before a defendant is Wis. 2d 671, 207 N.W.2d 589.
indicted, arrested, or otherwise officially accused. The statute of limitations is the
Participation of the state in promulgating adverse publicity is relevant in deter-
primary protection against stale charges. A delay between the commission of a
crime and the subsequent arrest of a defendant may violate due process if actual mining whether the trial court abused its discretion in not granting a venue change.
prejudice has been suffered as a result of the delay and the government caused the Briggs v. State, 76 Wis. 2d 313, 251 N.W.2d 12.
delay for an improper purpose. State v. Blanck, 2001 WI App 288, 249 Wis. 2d 364, Only the defendant may waive the right to venue where the crime was com-
638 N.W.2d 910, 01−0282. mitted. State v. Mendoza, 80 Wis. 2d 122, 258 N.W.2d 260.
The length of delay is to some extent a triggering mechanism to a speedy trial When the defendant was not relying on an alibi defense and did not file a notice
determination. Until there is some delay that is presumptively prejudicial, there is of alibi, the court did not abuse its discretion in barring alibi testimony. State v. Bur-
no necessity for inquiry. In determining the reasons for a delay, the initial inquiry roughs, 117 Wis. 2d 293, 344 N.W.2d 149 (1984).

If the defendant acquiesces in counsel’s decision that the defendant not testify, to deny release to those accused persons for an additional period
the defendant’s right to testify is waived. State v. Albright, 96 Wis. 2d 122, 291
N.W.2d 487 (1980). not to exceed 60 days following the hearing required under this
Constitutional error is harmless if the court can declare its belief that it was harm- subsection, if there is a requirement that there be a finding by the
less beyond a reasonable doubt because there is no reasonable possibility the error court based on clear and convincing evidence presented at a
contributed to the conviction. State v. Brecht, 143 Wis. 2d 297, 421 N.W.2d 96 hearing that the accused committed the felony and a requirement
(1988).
Two factors determine the sufficiency of a criminal charge: 1) whether it states that there be a finding by the court that available conditions of
an offense to which the defendant can plead; and 2) whether disposition will bar release will not adequately protect members of the community
future prosecution for the same offense. Additional factors are discussed. State v. from serious bodily harm or prevent intimidation of witnesses.
Fawcett, 145 Wis. 2d 244, 426 N.W.2d 91 (Ct. App. 1988).
A judge’s bias against counsel must be severe to translate into unconstitutional
Any law enacted under this subsection shall be specific, limited
partiality against a litigant. State v. Hollingsworth, 160 Wis. 2d 883, 467 N.W.2d and reasonable. In determining the 10−day and 60−day periods,
555 (Ct. App. 1991). the court shall omit any period of time found by the court to
Rule for pleadings in criminal obscenity cases are the same as for all other crimi- result from a delay caused by the defendant or a continuance
nal cases. If a pleading fails to set forth all elements of a crime but includes correct
citations, all elements are sufficiently alleged. State v. Petrone, 161 Wis. 2d 530, granted which was initiated by the defendant.
468 N.W.2d 676 (1991). (4) The privilege of the writ of habeas corpus shall not be
Notice of the nature and cause of the accusations is a key factor in determining suspended unless, in cases of rebellion or invasion, the public
whether an amendment at trial has prejudiced a defendant. The inquiry is whether
the new charge is so related to the transaction and facts adduced at the preliminary safety requires it. [1869 J.R. 7; 1870 J.R. 3; 1870 c. 118; vote
hearing that a defendant cannot be surprised by the new charge since the prepara- Nov. 1870; 1979 J.R. 76, 1981 J.R. 8, vote April 1981]
tion for the new charge would be no different than the preparation for the old
charge. State v. Neudorff, 170 Wis. 2d 608, 489 N.W.2d 689 (Ct. App. 1992). DOUBLE JEOPARDY
A criminal defendant’s right to testify is fundamental. In order to determine When, after a plea bargain, the state filed an amended complaint to which the
whether a criminal defendant is waiving the right to testify, a circuit court should defendant pled guilty, but the court refused to accept the plea and reinstated the
conduct an on−the−record colloquy with the defendant outside the presence of the complaint then later reinstated the amended complaint, the defendant could not
jury consisting of a basic inquiry to ensure that the defendant is aware of his or her claim double jeopardy. Salters v. State, 52 Wis. 2d 708, 191 N.W.2d 19.
right to testify, and the defendant has discussed this right with counsel. State v. The defense of double jeopardy is nonjurisdictional and is waived by a guilty
Weed, 2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485, 01−1746. plea intelligently and voluntarily entered. Nelson v. State, 53 Wis. 2d 769, 193
Following an unchallenged colloquy wherein the defendant knowingly, volun- N.W.2d 704.
tarily, and intelligently waived his right to testify, the defendant’s failure to seek an A person is not put in double jeopardy because of convictions in separate trials
offer of proof at the time of trial or in the postconviction motion operated as a of resisting an officer and of battery to an officer, even though the acts charged arose
waiver of the right to have decided the issue of whether the waiver to testify could from the same incident. State v. Elbaum, 54 Wis. 2d 213, 194 N.W.2d 660.
be withdrawn. State v. Winters, 2009 WI App 48, 317 Wis. 2d 401, 766 N.W.2d
754, 08−0910. When the defendant is tried for one offense and convicted of a lesser included
When a trial court fails to satisfy the Weed mandate to conduct an on−the−record offense the defendant is not placed in double jeopardy. Dunn v. State, 55 Wis. 2d
colloquy to determine if the defendant knowingly waived the right to testify, an evi- 192, 197 N.W.2d 749.
dentiary hearing to determine whether the waiver was knowingly, voluntarily, and A defendant is not subjected to double jeopardy when brought to trial a 2nd time
intelligently made is the proper procedural response. The state carries the burden after a mistrial is declared. State v. Elkinton, 56 Wis. 2d 497, 202 N.W.2d 28.
to show that the defendant’s waiver was knowing and voluntary and must do so by A defendant is not subjected to double jeopardy by being charged with both theft
clear and convincing evidence. State v. Garcia, 2010 WI App 26, 323 Wis. 2d 531, and burglary. An acquittal on one charge does not amount to collateral estoppel on
779 N.W.2d 718, 09−0516. the other. Hebel v. State, 60 Wis. 2d 325, 210 N.W.2d 695.
A law providing state−wide venue for certain sex crimes would be unconstitu- A defendant convicted of false imprisonment and rape committed in Waukesha
tional. 60 Atty. Gen. 450. county was not subjected to double jeopardy by a 2nd conviction for false imprison-
The absolute prohibition of paralegal−conducted jail interviews is an unjustifi- ment of the same victim in Milwaukee county, because the facts supported 2 sepa-
able restriction of inmates’ due process right of access to the courts. Restrictions rate prosecutions. Baldwin v. State, 62 Wis. 2d 521, 215 N.W.2d 541.
on such interviews must be justified by a compelling and overwhelming state inter- When a trial is terminated prior to a determination of guilt or innocence, the
est. 64 Atty. Gen. 152. double jeopardy clause does not prevent a retrial if there was a “manifest necessity”
The trial court’s wholesale exclusion of the defendant’s proffered expert and lay to terminate the proceedings because the indictment or information was fatally
testimony regarding post−traumatic stress disorder from the guilt phase of a murder defective and the trial court lacked jurisdiction to try the case. State v. Russo, 70
without valid justification violated the defendant’s right to present a defense and Wis. 2d 169, 233 N.W.2d 485.
to testify on her own behalf. Morgan v. Krenke, 72 F. Supp. 2d 980 (1999). A defendant convicted of fleeing an officer in Portage County was not put in
double jeopardy by a second conviction for fleeing a Wood County officer when
the defendant crossed the county line during a chase. State v. Van Meter, 72 Wis.
Prosecutions; double jeopardy; self−incrimination; 2d 754, 242 N.W.2d 206.
bail; habeas corpus. SECTION 8. [As amended Nov. 1870 and When the perjured testimony of a key state witness was not offered by the pro-
April 1981] (1) No person may be held to answer for a criminal secution for the purpose of provoking a mistrial and thus avoiding a probable
offense without due process of law, and no person for the same acquittal, a retrial after the conviction was vacated did not place the defendant in
double jeopardy. Day v. State, 76 Wis. 2d 588, 251 N.W.2d 811.
offense may be put twice in jeopardy of punishment, nor may be Neither the double jeopardy clause nor the doctrine of collateral estoppel pre-
compelled in any criminal case to be a witness against himself cludes parole revocation on the grounds of a parolee’s conduct related to an alleged
or herself. crime for which the parolee was charged and acquitted. State ex rel. Flowers v.
DHSS, 81 Wis. 2d 376, 260 N.W.2d 727.
(2) All persons, before conviction, shall be eligible for When a mistrial requested by the defendant is justified by prosecutorial or judi-
release under reasonable conditions designed to assure their cial overreaching intended to prompt the request, the double jeopardy clause bars
reprosecution. State v. Harrell, 85 Wis. 2d 331, 270 N.W.2d 428 (Ct. App. 1978).
appearance in court, protect members of the community from
The double jeopardy provisions of the U.S. and Wisconsin constitutions are
serious bodily harm or prevent the intimidation of witnesses. identical in scope and purpose. U.S. Supreme Court decisions control both provi-
Monetary conditions of release may be imposed at or after the sions. Multiplicitous rape charges are discussed. Harrell v. State, 88 Wis. 2d 546,
initial appearance only upon a finding that there is a reasonable 277 N.W.2d 462 (1979).
When the court of appeals reversed the defendant’s conviction due to insuffi-
basis to believe that the conditions are necessary to assure ciency of the evidence, the double jeopardy clause did not bar the supreme court
appearance in court. The legislature may authorize, by law, from reviewing the case. State v. Bowden, 93 Wis. 2d 574, 288 N.W.2d 139 (1980).
courts to revoke a person’s release for a violation of a condition When a crime is against persons rather than property, there are as many offenses
of release. as victims. State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980).
A prosecutor’s repeated failure to disclose prior statements of witnesses was not
(3) The legislature may by law authorize, but may not prosecutorial overreaching that would bar reprosecution after the defendant moved
require, circuit courts to deny release for a period not to exceed for a mistrial. State v. Copening, 100 Wis. 2d 700, 303 N.W.2d 821 (1981).
10 days prior to the hearing required under this subsection to a Two sentences for one crime violate the double jeopardy clause. State v.
Upchurch, 101 Wis. 2d 329, 305 N.W.2d 57 (1981).
person who is accused of committing a murder punishable by The trial court properly declared a mistrial due to a juror’s injury. State v. Men-
life imprisonment or a sexual assault punishable by a maximum doza, 101 Wis. 2d 654, 305 N.W.2d 166 (Ct. App. 1981).
imprisonment of 20 years, or who is accused of committing or The double jeopardy clause did not bar retrial when the judge declared a mistrial
due to jury deadlock. State v. DuFrame, 107 Wis. 2d 300, 320 N.W.2d 210 (Ct.
attempting to commit a felony involving serious bodily harm to App. 1982).
another or the threat of serious bodily harm to another and who The double jeopardy clause did not bar prosecution of a charge after it was con-
has a previous conviction for committing or attempting to com- sidered as evidence of character in sentencing the defendant on a prior unrelated
mit a felony involving serious bodily harm to another or the conviction. State v. Jackson, 110 Wis. 2d 548, 329 N.W.2d 182 (1983).
Without clear legislative intent to the contrary, multiple punishment may not be
threat of serious bodily harm to another. The legislature may imposed for felony−murder and the underlying felony. State v. Gordon, 111 Wis.
authorize by law, but may not require, circuit courts to continue 2d 133, 330 N.W.2d 564 (1983).

Reimposition of a sentence after the defendant has been placed on probation, effect or nature as to render the overall purpose punishment. State v. McMaster,
absent violation of probation condition, violates the double jeopardy clause. State 206 Wis. 2d 30, 556 N.W.2d 673 (1996), 95−1159.
v. Dean, 111 Wis. 2d 361, 330 N.W.2d 630 (Ct. App. 1983). Student disciplinary action under University of Wisconsin system administra-
Governmental action is punishment under the double jeopardy clause if its prin- tive rules does not constitute punishment triggering double jeopardy protection.
cipal purpose is punishment, retribution, or deterrence. When the principal pur- City of Oshkosh v. Winkler, 206 Wis. 2d 538, 557 N.W.2d 464 (Ct. App. 1996),
pose is nonpunitive, that a punitive motive may also be present does not make the 96−0967.
action punishment. State v. Killebrew, 115 Wis. 2d 243, 340 N.W.2d 470 (1983). Service in prison of time successfully served on parole and forfeited through
When probation was conditioned on the defendant’s voluntary commitment to revocation does not constitute punishment within the meaning of the double jeop-
a mental hospital but the hospital refused admittance, the court properly modified ardy clause. State ex rel. Ludtke v. DOC, 215 Wis. 2d 1, 572 N.W.2d 864 (Ct. App.
the original sentence by imposing a new sentence of 3 years’ imprisonment. 1997), 96−1745.
Double jeopardy was not violated. State v. Sepulveda, 120 Wis. 2d 231, 353 A defendant may be charged and convicted of multiple crimes arising out of one
N.W.2d 790 (1984). criminal act only if the legislature intends it. When one charged offense is not a
The double jeopardy clause was not violated when the trial court imposed illegal lesser included offense of the other, there is a presumption that the legislature
sentences then, in resentencing on a valid conviction, imposed an increased sen- intended to allow punishment for both offenses, which is rebutted only if other fac-
tence. State v. Martin, 121 Wis. 2d 670, 360 N.W.2d 43 (1985). tors clearly indicate a contrary intent. State v. Lechner, 217 Wis. 2d 392, 576
When police confiscated a large quantity of drugs from an empty house and the N.W.2d 912 (1998), 96−2830.
next day searched the defendant upon his return home confiscating a small quantity Whether a single course of conduct has been impermissibly divided into separate
of the same drugs, the defendant’s conviction for a lesser−included offense of pos- violations of the same statute requires consideration of whether each offense is
session and greater offense of possession with intent to deliver did not constitute identical in fact and law and whether the legislature intended to allow multiple con-
double jeopardy. State v. Stevens, 123 Wis. 2d 303, 367 N.W.2d 788 (1985). victions. For each victim there is generally a separate offense. Legislative intent
The double jeopardy clause was not violated by a state criminal prosecution for is shown by whether the statute punishes an individual for each act or for the course
conduct that was the basis of a prior remedial civil forfeiture proceeding by a of conduct those acts constitute. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d
municipality. Collateral estoppel does not bar a criminal prosecution following a 912 (1998), 96−2830.
guilty plea to a violation of municipal ordinances, even if both actions arise from The protection against double jeopardy embraces the defendant’s right of having
the same transaction. State v. Kramsvogel, 124 Wis. 2d 101, 369 N.W.2d 145 his or her trial completed by a particular tribunal. When the state moves for a mis-
(1985). See also State v. Thierfelder, 174 Wis. 2d 213, 495 N.W.2d 669 (1993). trial over the objections of the defense, the trial court may not grant the motion
A person may be convicted under s. 943.20 (1) (a) for concealing property and unless there is a manifest necessity for the act. State v. Collier, 220 Wis. 2d 825,
be separately convicted for transferring that property. State v. Tappa, 127 Wis. 2d 584 N.W.2d 689 (Ct. App. 1998), 97−2589.
155, 378 N.W.2d 883 (1985). The double jeopardy clause prevents retrial when there was no motion for a mis-
trial but prosecutorial misconduct, the motivation for and effect of which were not
Where the trial court declined to acquit the defendant but dismissed the criminal
known to the defendant at trial, had been committed. State v. Lettice, 221 Wis. 2d
information after the jury deadlocked, double jeopardy barred the state’s appeal of
the dismissal. State v. Turely, 128 Wis. 2d 39, 381 N.W.2d 309 (1986). 69, 585 N.W.2d 171 (Ct. App. 1998), 97−3708.
Multiple criminal punishments are appropriate for multiple acts, but not multiple
The defendant waived a double jeopardy claim when failing to move for a dis- thoughts. Multiple punishments for a single act of enticement when the defendant
missal of the charges at a retrial following a mistrial to which the defendant intended to commit multiple illegal acts was not allowable. State v. Church, 223
objected. State v. Mink, 146 Wis. 2d 1, 429 N.W.2d 99 (Ct. App. 1988). Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998), 97−3140.
A criminal prosecution for escape is not barred by the double jeopardy clause If the legislature unambiguously has enacted 2 distinct prohibitions, each requir-
when commenced following an administrative disciplinary proceeding. State v. ing proof of an element the other does not, the Blockburger presumption of intent
Quiroz, 149 Wis. 2d 691, 439 N.W.2d 621 (Ct. App. 1989). to allow multiple punishment applies. But when the statue is language is ambigu-
A court may not, after accepting a guilty plea and ordering a presentence inves- ous, the rule of lenity applies, requiring resolving the ambiguity against allowing
tigation, absent fraud or a party’s intentionally withholding material information, multiple punishment. State v. Church, 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App.
vacate the plea and order reinstatement of the original information without violat- 1998), 97−3140.
ing the double jeopardy clause. State v. Comstock, 168 Wis. 2d 915, 485 N.W.2d Double jeopardy was not violated when the trial court realized it made an error
354 (1992). in speech in pronouncing sentence and took immediate steps to correct the sentence
Whether multiple charges constitute double jeopardy is discussed. State v. Sau- before the judgment was entered into the record. State v. Burt, 2000 WI App 126,
ceda, 168 Wis. 2d 486, 485 N.W.2d 1 (1992). 237 Wis. 2d 610, 614 N.W.2d 42, 99−1209.
For a defendant to invoke double jeopardy protection after successfully moving Double jeopardy prevents a court that, under a mistaken view of the law, entered
for a mistrial, the prosecutor must have acted with intent to subvert the double jeop- a valid concurrent sentence from revising the sentence 3 moths later to be a consec-
ardy protection to gain another chance to convict or to harass the defendant with utive sentence. State v. Willett, 2000 WI App 212, 238 Wis. 2d 621, 618 N.W.2d
multiple prosecutions. State v. Quinn, 169 Wis. 2d 620, 486 N.W.2d 542 (Ct. App. 881, 99−2671.
1992). A defendant was not subjected to double jeopardy when, after a presentence
Charges are multiplicitous if they are identical both in law and fact or if the legis- investigation following a no contest plea, the court took the defendant’s plea for a
lature intended the allowable unit of prosecution for the offense to be a single count. second time and engaged the defendant in a colloquy to determine if the plea was
State v. Davis, 171 Wis. 2d 711, 492 N.W.2d 174 (Ct. App. 1992). knowing and intelligent. For double jeopardy to apply, an acquittal or dismissal
Multiple prosecutions for a continuous failure to pay child support are allowed. followed by a second prosecution for the same offense is required. State v. Clark,
State v. Grayson, 172 Wis. 2d 156, 493 N.W.2d 23 (1992). 2000 WI App 245, 239 Wis. 2d 417, 620 N.W.2d 435, 00−0932.
Jeopardy attaches when the jury is sworn. Granting a mistrial, dismissing the Issue preclusion does not bar the prosecution of a defendant for perjury who was
jury and convening a 2nd jury is prohibited absent “manifest necessity.” Granting tried and acquitted on a single issue when newly discovered evidence suggests that
a mistrial due to the unavailability of a prosecution witness is to be given the most the defendant falsely testified on the issue. The state must show that: 1) the evi-
stringent scrutiny. Alternatives to mistrials are to be considered. State v. Barthels, dence came to the state’s evidence after trial; 2) the state was not negligent in failing
174 Wis. 2d 173, 495 N.W.2d 341 (1993). to discover the evidence; 3) the evidence is material to the issue; and 4) the evidence
is not merely cumulative. State v. Canon, 2001 WI 11, 241 Wis. 2d 164, 622
First offender OMVWI prosecution is civil, and jeopardy does not attach to pre- N.W.2d 270, 98−3519.
vent a subsequent criminal prosecution. State v. Thierfelder, 174 Wis. 2d 213, 495
N.W.2d 669 (1993). A lesser included offense must be both lesser and included. An offense with a
heavier penalty cannot be regarded as a lesser offense than one with a lighter pen-
The state supreme court will not interpret Wisconsin’s double jeopardy clause alty. State v. Smits, 2001 WI App 45, 241 Wis. 2d 374, 626 N.W.2d 42, 00−1158.
to be broader than the U.S. Supreme Court’s interpretation of the federal clause. When a defendant claims the state did not present enough evidence at trial to sup-
State v. Kurzawa, 180 Wis. 2d 502, 509 N.W.2d 712 (1993). port splitting a course of conduct into multiple violations of the same statute, a mul-
A criminal conviction for violating terms of bail resulting from the conviction tiplicity objection is waived if it is not raised prior to the time the case is submitted
for another crime committed while released on bail does not constitute double jeop- to the jury. State v. Koller, 2001 WI App 253, 248 Wis. 2d 259, 635 N.W.2d 838,
ardy. State v. West, 181 Wis. 2d 792, 512 N.W.2d 207 (Ct. App. 1993). 99−3084.
Collateral estoppel is incorporated into the protection against double jeopardy When a defendant repudiates a negotiated plea agreement on the ground that it
and provides that when an ultimate issue of fact has once been determined, that contains multiplicitous counts, the defendant materially and substantially breaches
issue cannot be relitigated between the same parties. The test is whether a rational the agreement. When an accused successfully challenges a plea to and a conviction
jury could have grounded its verdict upon a separate issue. State v. Jacobs, 186 Wis. on multiplicity grounds and the information has been amended pursuant to a nego-
2d 219, 519 N.W.2d 746 (Ct. App. 1994). tiated plea agreement by which the state made charging concessions, ordinarily the
To determine whether charges are improperly multiplicitous the following two− remedy is to reverse the convictions and sentences, vacate the plea agreement, and
prong test is applied: 1) whether the charged offenses are identical in law and fact; reinstate the original information, but a different remedy may be appropriate. State
and 2) the legislative intent as to the allowable unit of prosecution for the offense. v. Robinson, 2002 WI 9, 249 Wis. 2d 553, 638 N.W.2d 564, 00−2435.
State v. Richter, 189 Wis. 2d 105, 525 N.W.2d 108 (Ct. App. 1994). A court’s correction of an invalid sentence by increasing the punishment does
An acquittal does not prove innocence. Evidence of a crime for which a defend- not constitute double jeopardy; the initial sentence being invalid, the second, more
ant was acquitted may be offered to show motive, plan, and other matters autho- severe sentence is the only valid sentence imposed. State v. Helm, 2002 WI App
rized under s. 904.04 if a jury could find by a preponderance of the evidence that 154, 256 Wis. 2d 285, 647 N.W.2d 405, 01−2398.
the defendant committed the other act. State v. Landrum, 191 Wis. 2d 107, 528 If a defendant makes a fraudulent representation to the court, which the court
N.W.2d 36 (Ct. App. 1995). accepts and relies upon in granting a sentence, the court may later declare the sen-
The extension of a previously entered juvenile dispositional order due to the tence void. Double jeopardy does not bar a subsequently increased sentence. State
juvenile’s participation in an armed robbery while subject to the order was not a v. Jones, 2002 WI App 208, 257 Wis. 2d. 163, 650 N.W.2d 855, 01−2969.
“disposition” of the armed robbery charge. Subsequent prosecution of the armed There is a spectrum of deference that appellate courts may apply to trial court
robbery charge in adult court did not violate s. 48.39 [now s. 938.39] or the protec- findings of mistrials ranging from strictest scrutiny to the greatest deference,
tion against double jeopardy. State v. Stephens, 201 Wis. 2d 82, 548 N.W.2d 108 depending on the circumstances. However, even if the mistrial order is entitled to
(Ct. App. 1996), 95−2103. great deference, the reviewing court must find that the trial judge exercised sound
Whether a statute is criminal or civil for purposes of double jeopardy analysis discretion in concluding that the state satisfied its burden of showing a manifest
depends on whether the legislature intended the statute to provide a remedial civil necessity for the mistrial. State v. Seefeldt, 2003 WI 47, 261 Wis. 2d 383, 661
sanction and whether there are aspects of the statute that are so punitive either in N.W.2d 822, 01−1969.

Trial courts may correct obvious errors in sentencing when it is clear that a good When the jury acquitted on one count but was unable to agree on 2 others, the
faith mistake was made in an initial sentencing pronouncement, the court promptly double jeopardy clause did not bar retrial on the remaining 2 counts. Richardson
recognizes the error, and the court, by reducing an erroneous original sentence on v. U.S. 468 U.S. 317 (1984).
one count and increasing the original sentence on another, seeks to impose a law- Under the dual sovereignty doctrine, successive prosecutions by 2 states for the
fully structured sentence that achieves the overall disposition that the court origi- same conduct does not constitute double jeopardy. Heath v. Alabama, 474 U.S. 82
nally intended. State v. Gruetzmacher, 2004 WI 55, 271 Wis. 2d 585, 679 N.W.2d (1985).
533, 02−3014. An appellate court remedied a double jeopardy violation by reducing a jeopardy−
In a multi−count trial, if the defendant is convicted of one or more counts and barred conviction to that of lesser included offense that was not jeopardy barred.
acquitted of one or more counts, and the defendant successfully appeals the convic- Morris v. Mathews, 475 U.S. 237 (1986).
tion or convictions, the acquittals pose no direct bar to retrying the defendant.
Rather, acquittal may indirectly impact the state’s ability to retry the defendant When the defendant breached a plea agreement and a 2nd degree murder convic-
under collateral estoppel principles. State v. Henning, 2004 WI 89, 273 Wis. 2d tion was vacated as a result, a subsequent prosecution for 1st degree murder did not
352, 681 N.W.2d 871, 02−1287. constitute double jeopardy. Ricketts v. Adamson, 483 U.S. 1 (1987).
The state’s attempt to retry the defendant for armed robbery alleging the use of The double jeopardy clause does not prohibit retrial after the reversal of a convic-
a different weapon after a trial court conclusion that an acquittal on a first armed tion based upon improperly admitted evidence that, once suppressed, would result
robbery charge resulted from insufficient evidence of the use of a gun violated in evidence insufficient to support the conviction. Lockhart v. Nelson, 488 U.S. 33,
double jeopardy protections. It did not necessarily follow that the state was pre- 102 L. Ed. 2d 265 (1988).
vented from pursuing a charge of simple robbery however. Losey v. Frank, 268 F. The double jeopardy clause bars a subsequent prosecution if, to establish an
Supp. 2d 1066 (2003). essential element of the offense charged, the prosecution will prove conduct consti-
A guilty plea waives a multiplicity claim anytime the claim cannot be resolved tuting the offense for which the defendant was previously prosecuted. Grady v.
on the record, regardless whether a case presents on direct appeal or collateral Corbin, 495 U.S. 508, 109 L. Ed. 2d 548 (1990).
attack. State v. Kelty, 2006 WI 101, 294 Wis. 2d 62, 716 N.W.2d 886, 03−3055. Generally, the double jeopardy clause prohibits reexamination of a court−
Retrial is barred when a defendant moves for and obtains a mistrial due to prose- decreed acquittal to the same extent it prohibits reexamination of an acquittal by
cutorial overreaching when the prosecutor intentionally attempts to prejudice the jury verdict whether in a bench or jury trial. If, after a facially unqualified midtrial
defendant or create another chance to convict. A police officer’s testimony that dismissal of one count, the trial proceeded to the defendant’s introduction of evi-
forms the basis of a mistrial will not be imputed to the prosecutor in the absence dence, the acquittal must be treated as final, unless the availability of reconsidera-
of evidence of collusion by the prosecutor’s office intended to provoke the defend- tion has been plainly established by pre−existing rule or case authority expressly
ant to move for a mistrial and does not constitute prosecutorial overreaching bar- applicable to midtrial rulings on the sufficiency of the evidence. Smith v. Massa-
ring a retrial. State v. Jaimes, 2006 WI App 93, 292 Wis. 2d 656, 715 N.W.2d 669, chusetts, 543 U.S. 462, 160 L. Ed. 2d 914, 125 S. Ct. 1129 (2004).
05−1511. The Grady v. Corbin “same conduct” test is overruled. United States v. Dixon,
The defendant’s argument that his conviction on two bail−jumping counts was 509 U.S. 688, 125 L. Ed. 2d 556 (1993).
multiplicitous because the preliminary hearings at which he failed to appear were The double jeopardy clause precludes the government from relitigating any issue
scheduled for the same time and he had signed only one bond for the two underlying that was necessarily decided by a jury’s acquittal in a prior trial. Consideration of
cases failed because the counts were different in fact. Proof of notification and fail- hung counts has no place in the issue−preclusion analysis. To identify what a jury
ure to appear in one case would not prove notification and failure to appear in the necessarily determined at trial, courts should scrutinize a jury’s decisions, not its
other, making the two charges different in nature and therefore different in fact. failures to decide. A jury’s verdict of acquittal represents the community’s collec-
State v. Eaglefeathers, 2009 WI App 2, 316 Wis. 2d 152, 762 N.W.2d 690, 07−0845. tive judgment regarding all the evidence and arguments presented to it. Thus, if
Multiple punishments may not be imposed for charges that are identical in law there was a critical issue of ultimate fact in all charges, a jury verdict that necessar-
and fact unless the legislature intended to impose such punishments. An “ele- ily decided that issue in the defendant’s favor protects him or her from prosecution
ments−only” test, to determine whether charges are identical in law and fact, is the for any charge for which that fact is an essential element. Yeager v. U.S. 557 U.S.
first prong of a multiplicity analysis. Offenses with elements identical in law and ___, 129 S. Ct. 2360, 174 L. Ed. 2d 78 (2009).
fact establish a presumption that the legislature did not intend to permit multiple Custody in the county jail incidental to conviction added to the maximum term
punishments. Offenses with elements that differ in law or fact establish a presump- imposed on conviction subjected the petitioner to multiple penalties for one offense
tion that the legislature did intend to permit multiple punishments. State v. Patter- in excess of the maximum statutory penalty and in violation of the guarantee
son, 2010 WI 130, ___ Wis. 2d ___, ___ N.W.2d ___, 08−1968. against double jeopardy. Taylor v. Gray, 375 F. Supp. 790.
Regardless of the outcome of the “elements−only” test, the court proceeds to dis- Double jeopardy was not violated when the defendant was convicted of separate
cern legislative intent. Operating under the presumption established under the first offenses under s. 161.41 [now s. 961.41] for simultaneous delivery of different con-
prong, the court then proceeds in a 4−factor analysis to determine whether the legis- trolled substances. Leonard v. Warden, Dodge Correctional Inst. 631 F. Supp. 1403
lature intended to permit multiple punishments for the offenses in question, (1986).
examining: 1) all relevant statutory language; 2) the legislative history and context
of the statutes; 3) the nature of the proscribed conduct; and 4) the appropriateness Multiple Punishment in Wisconsin and the Wolske Decision: Is It Desirable to
of multiple punishments for the defendant’s conduct. State v. Patterson, 2010 WI Permit Two Homicide Convictions for Causing a Single Death? 1990 WLR 553.
130, ___ Wis. 2d ___, ___ N.W.2d ___, 08−1968. State v. Grayson: Clouding the Already Murky Waters of Unit Prosecution Anal-
When the judge dismissed a charge after the jury returned a guilty verdict, the ysis in Wisconsin. Leslie. 1993 WLR 811.
prosecution’s appeal did not constitute double jeopardy. United States v. Wilson, DUE PROCESS
420 U.S. 332. It is not necessary to hold a 2nd Goodchild type hearing before admitting testi-
When a juvenile court found the defendant guilty but unfit for treatment as a mony of a 2nd witness to the same confession. State v. Watson, 46 Wis. 2d 492,
juvenile, the defendant would be put in double jeopardy if tried in a criminal court. 175 N.W.2d 244.
Breed v. Jones, 421 U.S. 519. The sentencing duties of a trial court following a 2nd conviction after retrial or
A guilty plea does not waive the defense of double jeopardy. Menna v. New upon resentencing bars the trial court from imposing an increased sentence unless
York, 423 U.S. 61. events occur or come to the sentencing court’s attention subsequent to the first
When defense counsel’s improper opening statement prompted the trial judge to imposition of sentence that warrant an increased penalty and the court affirmatively
grant a mistrial over defense objections, and when the record provided sufficient states the ground for increasing the sentence on the record. Denny v. State, 47 Wis.
justification for the mistrial ruling, the judge’s failure to make explicit findings of 2d 541, 178 N.W.2d 38.
“manifest necessity” did not support the defendant’s claim of double jeopardy. Ari- An arrest is not void because of a 3−month interval between the time of the
zona v. Washington, 434 U.S. 497 (1978). offense and the arrest. Gonzales v. State, 47 Wis. 2d 548, 177 N.W.2d 843.
The protection against double jeopardy did not bar federal prosecution of an A lineup, wherein 2 suspects were required to wear special clothing and a num-
American Indian previously convicted in a tribal court of a lesser included offense ber of victims were allowed to identify them out loud, influencing others, was
arising out of the same incident. United States v. Wheeler, 435 U.S. 313 (1978). unfair and later influenced in−court identification. Jones v. State, 47 Wis. 2d 642,
The double jeopardy clause bars a second trial after reversal of a conviction for 178 N.W.2d 42.
insufficiency of evidence, as distinguished from reversal for trial error. Burks v. An out of court identification by a witness shown only a photograph of the defen-
United States, 437 U.S. 1 (1978). dant and no other persons was not a denial of due process, but does reflect on the
There is no exception permitting a retrial once the defendant has been acquitted, weight given the evidence. Defense counsel need not be present at the identifi-
no matter how erroneously. Sanabria v. United States, 437 U.S. 54 (1978). cation. Kain v. State, 48 Wis. 2d 212, 179 N.W.2d 777.
The test for determining whether 2 offenses are the same for purposes of barring The rule that a defendant during a trial should not be handcuffed does not extend
successive prosecutions is discussed. Illinois v. Vitale, 447 U.S. 410 (1980). to periods outside the courtroom, and the fact that some jurors saw the defendant
A statute authorizing the government to appeal a sentence did not violate the shackled was not prejudicial. State v. Cassel, 48 Wis. 2d 619, 180 N.W.2d 607.
double jeopardy clause. United States v. Di Franceseo, 449 U.S. 117 (1980). It is not a violation of due process for the judge who conducts a hearing regarding
When the judge granted the defendant’s motion for a new trial on the ground that the admissibility of a confession to continue as the trial judge in the case. State v.
the evidence was insufficient to support the jury’s guilty verdict, the double jeop- Cleveland, 50 Wis. 2d 666, 184 N.W.2d 899.
ardy clause barred a second trial. Hudson v. Louisiana, 450 U.S. 40 (1981). A statute denying probation to 2nd offenders and that does not require proof of
A criminal defendant who successfully moves for a mistrial may invoke the criminal intent is constitutional. State v. Morales, 51 Wis. 2d 650, 187 N.W.2d 841.
double jeopardy clause to bar a retrial only if the mistrial was based on prosecutorial When a defendant is no longer entitled to a substitution of judge, prejudice in fact
or judicial conduct intended to provoke the defendant into moving for the mistrial. by the judge must be shown. State v. Garner, 54 Wis. 2d 100, 194 N.W.2d 649.
Oregon v. Kennedy, 456 U.S. 667 (1982). A child committed to the state who is released under supervision, who then vio-
Reversal based on the weight of the evidence, unlike reversal based on insuffi- lates the terms of the release is entitled to the same protections as an adult as to a
cient evidence, does not preclude retrial. Tibbs v. Florida, 457 U.S. 31 (1982). hearing on probation revocation. State ex rel. Bernal v. Hershman, 54 Wis. 2d 626,
The defendant’s conviction and sentence by Missouri for both armed criminal 196 N.W.2d 721.
action and first−degree robbery in single trial did not constitute double jeopardy. A defendant who, believing he was seriously wounded, began to tell what hap-
Missouri v. Hunter, 459 U.S. 359 (1983). pened and was given Miranda warnings waived his rights when he continued to
The double jeopardy clause did not bar prosecution on more serious charges after talk. Waiver need not be express when the record shows the defendant was con-
the defendant pled guilty to lesser included offenses. Ohio v. Johnson, 467 U.S. scious and alert and said he understood his rights. State v. Parker, 55 Wis. 2d 131,
493 (1984). 197 N.W.2d 742.

The duty of the state to disclose exculpatory evidence is not excused by the dis- An 8−month delay between the date of the alleged offense and the filing of a
trict attorney’s belief that the evidence is incredible, but failure to disclose is not complaint did not violate the defendant’s due process rights. State v. Davis, 95 Wis.
prejudicial when the evidence would not have affected the conviction. Nelson v. 2d 55, 288 N.W.2d 870 (Ct. App. 1980).
State, 59 Wis. 2d 474, 208 N.W.2d 410. Exculpatory hearsay lacked assurances of trustworthiness and was properly
Due process requires that a juvenile be afforded a copy of a hearing examiner’s excluded. State v. Brown, 96 Wis. 2d 238, 291 N.W.2d 528 (1980).
report recommending revocation of aftercare supervision and the opportunity to The use of an unsworn prior inconsistent statement of a witness as substantive
object thereto in writing prior to the decision of the H & S S department secretary. evidence did not deprive the defendant of due process. Vogel v. State, 96 Wis. 2d
State ex rel. R. R. v. Schmidt, 63 Wis. 2d 82, 216 N.W.2d 18. 372, 291 N.W.2d 838 (1980).
Circumstances to be considered in determining whether the delay between the An inmate in administrative confinement has a state−created interest protected
alleged commission of a crime and an arrest denies a defendant due process of law by due process in his eventual return to the general prison population. State ex rel.
include: 1) the period of the applicable statute of limitations; 2) prejudice to the con- Irby v. Israel, 100 Wis. 2d 411, 302 N.W.2d 517 (Ct. App. 1981).
duct of the defense; 3) intentional prosecution delay to gain some tactical advan- Factors that the court should consider when the defendant requests to be tried
tage; and 4) the loss of evidence or witnesses, and the dimming of memories. The after the trial of a codefendant in order to secure testimony of the codefendant are
mere possibility of prejudice from these factors is not alone sufficient to demon- discussed. State v. Anastas, 107 Wis. 2d 270, 320 N.W.2d 15 (Ct. App. 1982).
strate that a fair trial is impossible—actual prejudice must be shown. State v. Rog-
ers, 70 Wis. 2d 160, 233 N.W.2d 480. A revocation of probation denied due process when there was a lack of notice
of the total extent and nature of the alleged violations of probation. State ex rel.
A photo identification using one color and 4 black and white photos when 2 of Thompson v. Riveland, 109 Wis. 2d 580, 326 N.W.2d 768 (1982).
the 5, including the color photo, were of the defendant was not impermissibly
suggestive. Mentek v. State, 71 Wis. 2d 799, 238 N.W.2d 752. Continued questioning after the accused mentioned the word “attorney” was
prejudicial error. Harmless error is discussed. State v. Billings, 110 Wis. 2d 661,
The fact that the accused, who demanded a jury trial, received a substantially
greater sentence than an accomplice who pleaded guilty does not constitute punish- 329 N.W.2d 192 (1983).
ment for exercising the right to a jury trial or a denial of either due process or equal Due process requires the state to preserve evidence that: 1) possesses exculpa-
protection. Drinkwater v. State, 73 Wis. 2d 674, 245 N.W.2d 664. tory value apparent to the custodian; and 2) is of a nature that the defendant would
Improper remarks by a prosecutor are not necessarily prejudicial when objec- be unable to obtain comparable evidence by other reasonably available means.
tions are promptly made and sustained and curative instructions and admonitions State v. Oinas, 125 Wis. 2d 487, 373 N.W.2d 463 (Ct. App. 1985).
are given by the court. Hoppe v. State, 74 Wis. 2d 107, 246 N.W.2d 122 (1976). When 2 statutes have identical criminal elements but different penalties, the state
Persons committed under ch. 975 are entitled to periodic review hearings that does not deny equal protection or due process by charging defendants with the more
afford the same minimal requirements of due process as parole determinations. serious crime. State v. Cissel, 127 Wis. 2d 205, 378 N.W.2d 691 (1985).
Habeas corpus is an appropriate remedy. State ex rel. Terry v. Schubert, 74 Wis. If the state shows that delay in charging an offense committed by an adult defend-
2d 487, 247 N.W.2d 109. ant while still a juvenile was not with a manipulative intent, due process does not
A sentencing judge does not deny due process by considering pending criminal require dismissal. State v. Montgomery, 148 Wis. 2d 593, 436 N.W.2d 303 (1989).
charges in imposing a sentence. Handel v. State, 74 Wis. 2d 699, 247 N.W.2d 711. Lineup and in−court identifications of a defendant may be suppressed as the fruit
Due process requires that a prosecutor voluntarily disclose highly exculpatory of an illegal arrest under appropriate circumstances. State v. Walker, 154 Wis. 2d
evidence that would raise a reasonable doubt when none existed before. Ruiz v. 158, 453 N.W.2d 127 (1990).
State, 75 Wis. 2d 230, 249 N.W.2d 277. A comment during closing argument on the defendant’s courtroom demeanor
The trial court did not err in refusing to grant a mistrial when police reports con- when evidence of the demeanor was adduced during trial did not violate the 5th
cerning an unrelated pending charge against the defendant and the defendant’s amendment. State v. Norwood, 161 Wis. 2d 676, 468 N.W.2d 741 (Ct. App. 1991).
mental history were accidentally sent to the jury room. Johnson v. State, 75 Wis. Evidence favorable to the defendant must be disclosed if there is a “reasonable
2d 344, 249 N.W.2d 593. probability” that disclosure would have resulted in a different trial outcome. State
The defendant received a fair, though not perfect, trial when a prosecution wit- v. Garrity, 161 Wis. 2d 842, 469 N.W.2d 219 (Ct. App. 1991).
ness attempted to ingratiate himself with the jury prior to trial and another prosecu- When prior convictions are used to enhance a minimum penalty, collateral attack
tion witness violated a sequestration order. Nyberg v. State, 75 Wis. 2d 400, 249 of the prior convictions must be allowed. State v. Baker, 165 Wis. 2d 42, 477
N.W.2d 524. N.W.2d 292 (Ct. App. 1991).
The defendant’s refusal to name accomplices was properly considered by the The defense of outrageous governmental conduct arises when the government
sentencing judge. Because the defendant had pleaded guilty to a crime, self−in- violates a specific constitutional right and was itself so enmeshed in the criminal
crimination would not have resulted from the requested cooperation. Holmes v. activity that prosecution of the defendant would be repugnant to the criminal justice
State, 76 Wis. 2d 259, 251 N.W.2d 56. system. State v. Hyndman, 170 Wis. 2d 198, 488 N.W.2d 111 (Ct. App. 1992).
A parole revocation hearing is not part of a criminal prosecution and thus the full When the argument of the defense invited and provoked an otherwise improper
panoply of rights, including Miranda warnings and the exclusionary rule, are not remark by the prosecutor, the question is whether, taken in context, the “invited
applicable. State ex rel. Struzik v. DHSS, 77 Wis. 2d 216, 252 N.W.2d 660. remark” unfairly prejudiced the defendant. State v. Wolff, 171 Wis. 2d 161, 491
Due process does not require that a person know with certainty which crime, N.W.2d 498 (Ct. App. 1992).
among several, the person is committing, at least until the prosecution exercises its Due process is not violated when a burden of production is placed on the defend-
charging discretion. Harris v. State, 78 Wis. 2d 357, 254 N.W.2d 291. ant to come forward with some evidence of a negative defense. State v. Pettit, 171
The due process rationale of Doyle v. Ohio, 426 U.S. 610, is limited to prosecuto- Wis. 2d 627, 492 N.W.2d 633 (Ct. App. 1992).
rial use of a defendants’ custodial interrogation silence to impeach exculpatory To sustain a conviction when alternative methods of proof resting upon different
statements made during trial. Rudolph v. State, 78 Wis. 2d 435, 254 N.W.2d 471. evidentiary facts are presented to the jury, the evidence must be sufficient to convict
Due process does not require that a John Doe witness be advised of the nature beyond a reasonable doubt upon both of the alternative modes of proof. State v.
of the proceeding or that the witness is a “target” of the investigation. Ryan v. State, Chambers, 173 Wis. 2d 237, 496 N.W.2d 191 (Ct. App. 1992).
79 Wis. 2d 83, 255 N.W.2d 910. Due process rights of a probationer at a hearing to modify probation are dis-
The due process requirements an administrative body must provide when it cussed. State v. Hayes, 173 Wis. 2d 439, 496 N.W.2d 645 (Ct. App. 1992).
imposes regulatory or remedial sanctions upon conduct that is also subject to crimi- The interval between an arrest and an initial appearance is never unreasonable
nal punishment are discussed. Layton School of Art & Design v. WERC, 82 Wis. when the arrested suspect is already in the lawful physical custody of the state.
2d 324, 262 N.W.2d 218. State v. Harris, 174 Wis. 2d 367, 497 N.W.2d 742 (Ct. App. 1993).
The right to a fair trial does not entitle the defendant to inspect the entire file of The admissibility of an out−of−court identification rests on whether the proce-
the prosecutor. State ex rel. Lynch v. County Ct. 82 Wis. 2d 454, 262 N.W.2d 773. dure was impermissibly suggestive and whether under all the circumstances the
Under the “totality of circumstances” test, lineup and in−court identifications identification was reliable despite any suggestiveness. That another procedure
were properly admitted, although an earlier photographic identification was unnec- might have been better does not render the identification inadmissible. State v.
essarily suggestive. Simos v. State, 83 Wis. 2d 251, 265 N.W.2d 278 (1978). Ledger, 175 Wis. 2d 116, 499 N.W.2d 199 (Ct. App. 1993).
A deliberate failure to object to prejudicial evidence at trial constitutes a binding A defendant has a fundamental right to testify in his or her own behalf. Waiver
waiver. Murray v. State, 83 Wis. 2d 621, 266 N.W.2d 288 (1978). of the right must be supported by a record of a knowing and voluntary waiver. State
The test to determine if the denial of a continuance acted to deny the defendant v. Wilson, 179 Wis. 2d 660, 508 N.W.2d 44 (Ct. App. 1993).
of either due process or the effective right of counsel is discussed. State v. Wollman, The good or bad faith of police in destroying apparently exculpatory evidence
86 Wis. 2d 459, 273 N.W.2d 225 (1979). is irrelevant, but in the absence of bad faith, destruction of evidence that only pro-
The accused has the right to answer some questions after a Miranda warning and vides an avenue of investigation does not violate due process protections. State v.
then to reassert the privilege and break off all questioning. Odell v. State, 90 Wis. Greenwold, 181 Wis. 2d 881, 512 N.W.2d 237 (Ct. App. 1994).
2d 149, 279 N.W.2d 706 (1979). Bad faith can only be shown if the officers were aware of the potentially exculpa-
Trial courts do not have subject matter jurisdiction to convict defendants under tory value of evidence they fail to preserve and the officers acted with animus or
unconstitutionally vague statutes. The right to raise the issue on appeal cannot be made a conscious effort to suppress the evidence. State v. Greenwold, 189 Wis. 2d
waived, regardless of a guilty plea. State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, 59, 525 N.W.2d 294 (Ct. App. 1994).
280 N.W.2d 316 (Ct. App. 1979). An executory plea bargain is without constitutional significance and a defendant
A probationer’s due process right to prompt revocation proceedings was not trig- has no right to require the performance of an executory agreement, but upon entry
gered when the probationer was detained as the result of unrelated criminal proof a plea due process requires the defendant’s expectations to be fulfilled. State v.
ceedings. State ex rel. Alvarez v. Lotter, 91 Wis. 2d 329, 283 N.W.2d 408 (Ct. App. Wills, 187 Wis. 2d 528, 523 N.W.2d 569 (Ct. App. 1994).
1979). A prosecutor’s closing argument is impermissible when it goes beyond reason-
Before the “totality of circumstances” analysis is applied to confrontation identi- ing drawn from the evidence and suggests that the verdict should be arrived at by
fication, it must first be determined whether police deliberately contrived the con- considering other factors. Substantially misstating the law and appearing to speak
frontation between the witness and defendant. State v. Marshall, 92 Wis. 2d 101, for the trial court was improper and required court intervention in the absence of
284 N.W.2d 592 (1979). an objection. State v. Neuser, 191 Wis. 2d 131, 528 N.W.2d 49 (Ct. App. 1995).
Due process requires that evidence reasonably support a finding of guilt beyond Whether the interplay of legally correct instructions impermissibly misled a jury
a reasonable doubt. State v. Stawicki, 93 Wis. 2d 63, 286 N.W.2d 612 (Ct. App. is to be determined based on whether there is a reasonable likelihood that a juror
1979). was misled. State v. Lohmeier, 205 Wis. 2d 183, 556 N.W.2d 90 (1996), 94−2187.

Prosecutorial misconduct violates the due process right to a fair trial if it poisons Cases addressing the pretrial destruction of evidence and a defendant’s due pro-
the entire atmosphere of the trial. State v. Lettice, 205 Wis. 2d 347, 556 N.W.2d cess rights apply to posttrial destruction as well. A defendant’s due process rights
376 (Ct. App. 1996), 96−0140. are violated by the destruction of evidence: 1) if the evidence destroyed was appar-
A criminal conviction cannot be affirmed on the basis of a theory not presented ently exculpatory and of such a nature that the defendant would be unable to obtain
to the jury. State v. Wulff, 207 Wis. 2d 144, 557 N.W.2d 813 (1997), 94−3364. comparable evidence by other reasonable means; or 2) if the evidence was poten-
A defendant is denied due process when identification is derived from police tially exculpatory and was destroyed in bad faith. State v. Parker, 2002 WI App
procedures so impermissibly suggestive as to give rise to a very substantial likeli- 159, 256 Wis. 2d 154, 647 N.W.2d 430, 01−2721.
hood of misidentification. A suppression hearing is not always required when a A trial court did not erroneously exercise its discretion in denying the defen-
defendant moves to suppress identification, but must be considered on a case−by− dant’s request that his alibi witnesses be allowed to testify in street clothes rather
case basis. State v. Garner, 207 Wis. 2d 520, 558 N.W.2d 916 (Ct. App. 1996), than jail attire due to the difficulty associated with having the in−custody witnesses
96−0168. brought to the courtroom while keeping them separate, because allowing the cloth-
There is no constitutional right to a sworn complaint in a criminal case. State v. ing changes would create security risks, and because the witnesses had prior con-
Zanelli, 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997), 96−2159. victions that the jury would hear about anyway. State v. Reed, 2002 WI App 209,
A defendant has a due process right to have the full benefit of a relied upon plea 256 Wis. 2d. 1019, 650 N.W.2d 855, 01−2973.
bargain. The unintentional misstatement of a plea agreement, promptly rectified When an attorney represents a party in a matter in which the adverse party is that
by the efforts of both counsel, did not deny that right. State v. Knox, 213 Wis. 2d attorney’s former client, the attorney will be disqualified if the subject matter of the
318, 570 N.W.2d 599 (Ct. App. 1997), 97−0682. two representations are substantially related such that the lawyer could have
The state’s use, as a witness, of an informant who purchased and used illegal obtained confidential information in the first representation that would have been
drugs while making controlled drug buys for the state, in violation of her agreement relevant in the second. This test applies in a criminal serial representation case
with the state, was not a violation of fundamental fairness that shocks the universal when the defendant raises the issue prior to trial. The actual prejudice standard in
justice system and did not constitute outrageous governmental conduct. State v. Love applies when a defendant raises a conflict of interest objection after trial. State
Givens, 217 Wis. 2d 180, 580 N.W.2d 340 (Ct. App. 1998), 97−1248. v. Tkacz, 2002 WI App 281, 258 Wis. 2d 611, 654 N.W.2d 37, 02−0192.
Due process does not require that judges’ personal notes be made available to Neither a presumption of prosecutor vindictiveness or actual vindictiveness was
litigants. It is only the final reasoning process that judges are required to place on found when, following reversal of a conviction on appeal, the prosecutor offered
the record that is representative of the performance of judicial duties. State v. Pan- a less favorable plea agreement than had been offered prior to the initial trial. A
knin, 217 Wis. 2d 200, 579 N.W.2d 52 (Ct. App. 1998), 97−1498. presumption of vindictiveness is limited to cases in which a realistic likelihood of
The state’s failure to disclose that it took samples but failed to have them ana- vindictiveness exists; a mere opportunity for vindictiveness is insufficient. To
lyzed affected the defendant’s right to a fair trial because it prevented the defendant establish actual vindictiveness, there must be objective evidence that a prosecutor
from raising the issue of the reliability of the investigation and from challenging acted in order to punish the defendant for standing on his or her legal rights. State
the credibility of a witness who testified that the test had not been performed. State v. Tkacz, 2002 WI App 281, 258 Wis. 2d 611, 654 N.W.2d 37, 02−0192.
v. DelReal, 225 Wis. 2d 565, 593 N.W.2d 461 (Ct. App.1999), 97−1480. Courts employ two tests to determine whether a defendant’s due process right
When defense counsel has appeared for and represented the state in the same to trial by an impartial judge is violated: 1) a subjective test based on the judge’s
case in which he or she later represents the defendant, and no objection was made own determination of his or her impartiality;and 2) an objective test that asks
at trial, to prove a violation of the right to effective counsel, the defendant must whether objective facts show actual bias. In applying the objective test, there is a
show that counsel converted a potential conflict of interest into an actual conflict presumption that the judge is free of bias. To overcome this presumption the defen-
by knowingly failing to disclose the attorney’s former prosecution of the defendant dant must show by a preponderance of the evidence that the judge is in fact biased
or representing the defendant in a manner that adversely affected the defendant’s an not that there is an appearance of bias or that the circumstance might lead one
interests. State v. Love, 227 Wis. 2d 60, 594 N.W.2d 806 (1999), 97−2336. See to speculate that the judge is biased. State v. O’Neill, 2003 WI App 73, 261 Wis.
also State v. Kalk, 2000 WI App 62, 234 Wis. 2d 98, 608 N.W.2d 98, 99−1164. 2d 534, 663 N.W.2d 292, 02−0808.
A new rule of criminal procedure applies to all cases pending on direct review Following the reversal of one of multiple convictions on multiplicity grounds an
or that are not yet final that raised the issue that was subject to the change. There increased sentence was presumptively vindictive, in violation of the right to due
is no retroactive application to cases in which the issue was not raised. State v. Ziv- process. In order to assure the absence of a vindictive motive whenever a judge
cic, 229 Wis. 2d 119, 598 N.W.2d 565 (Ct. App. 1999), 98−0909. imposes a more severe sentence upon a defendant after a new trial, the reasons for
Neither a presumption of prosecutor vindictiveness or actual vindictiveness was doing so must affirmatively appear and must be based on objective information
found when, following a mistrial resulting from a hung jury, the prosecutor filed concerning identifiable conduct on the part of the defendant occurring after the
increased charges and then offered to accept a plea bargain requiring a guilty plea time of the original sentencing proceeding. State v. Church, 2003 WI 74, 262 Wis.
to the original charges. Adding additional charges to obtain a guilty plea does no 2d 678, 665 N.W.2d 141, 01−3100.
more than present the defendant with the alternative of forgoing trial or facing Coercive conduct by a private person, absent any claim of state involvement, is
charges on which the defendant is subject to prosecution. State v. Johnson, 2000 insufficient to render a confession inadmissible on due process grounds. Involun-
WI 12, 232 Wis. 2d 679, 605 N.W.2d 846, 97−1360. tary confession jurisprudence is entirely consistent with settled law requiring some
When an indigent defendant requests that the state furnish a free transcript of a state action to support a claim of violation of the due process clause. The most out-
separate trial of a codefendant, the defendant must show that the transcript will be rageous behavior by a private party seeking to secure evidence against a defendant
valuable to him or her. State v. Oswald, 2000 WI App 3, 232 Wis. 2d 103, 606 does not make that evidence inadmissible under the due process clause. State v.
N.W.2d 238, 97−1219. Moss, 2003 WI App 239, 267 Wis. 2d 772, 672 N.W.2d 125, 03−0436.
The entry of a plea from jail by closed circuit tv, while a violation of a statute, The defendant’s due process rights were violated when the investigating detec-
does not violate due process absent a showing of coercion, threat, or other unfair- tive gave a sentencing recommendation, written on police department letterhead
ness. State v. Peters, 2000 WI App 154, 237 Wis. 2d 741, 615 N.W.2d 655, and forwarded by the court to the presentence investigation writer to assess and
99−1940. evaluate, that undermined the state’s plea bargained recommendation, in effect
A pretrial detainee, including the subject of an arrest, is entitled to receive medi- breaching the plea agreement. State v. Matson, 2003 WI App 253, 268 Wis. 2d 725,
cal attention. The scope of this due process protection is not specifically defined, 674 N.W.2d 51, 03−0251.
but is at least as great as the 8th amendment protection available to convicted pris- The right to testify must be exercised at the evidence−taking stage of trial. Once
oners. Robinson v. City of West Allis, 2000 WI 126, 239 Wis. 2d 595, 619 N.W.2d the evidence has been closed, whether to reopen for submission of additional testi-
692, 98−1211. mony is a matter left to the trial court’s discretion. A trial court must consider
While the subtleties of police practice in some cases necessitate an expert wit- whether the likely value of the defendant’s testimony outweighs the potential for
ness, there is no per se requirement that there be expert testimony to prove an exces- disruption or prejudice in the proceedings, and if so whether the defendant has a
sive use of force claim. Robinson v. City of West Allis, 2000 WI 126, 239 Wis. 2d reasonable excuse for failing to present the testimony during his case−in−chief.
595, 619 N.W.2d 692, 98−1211. State v. Arredondo, 2004 WI App 7, 269 Wis. 2d 369, 674 N.W.2d 647, 02−2361.
A defendant is denied due process when identification evidence stems from a Whether a claim that newly discovered evidence entitles a probation revokee to
pretrial procedure that is so impermissibly suggestive as to give rise to a substantial an evidentiary hearing to determine whether a new probation revocation hearing
likelihood of irreparable misidentification. Whether an identification is impermis- should be conducted shall be governed by procedures analogous to those in crimi-
sible is decided on a case−by−case basis. State v. Benton, 2001 WI App 81, 243 nal cases under s. 974.06. Booker v. Schwarz, 2004 WI App 50, 270 Wis. 2d 745,
Wis. 2d 54, 625 N.W.2d 923, 00−1096. 678 N.W.2d 361, 03−0217.
The clear and convincing evidence and close case rules do not apply in determin- In considering prosecutorial vindictiveness when charges are increased follow-
ing a breach of a plea agreement. Historical facts are reviewed with a clearly erro- ing a successful appeal, whether the defendant is facing stiffer charges arising out
neous standard and whether the state’s conduct was a substantial and material of a single incident is important. The concern is that the defendant will be discour-
breach is a question of law. State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 aged from exercising his or her right to appeal because of fear the state will retaliate
N.W.2d 733, 00−0535. by substituting a more serious charge for the original one on retrial. That concern
A prosecutor is not required to enthusiastically advocate for a bargained for sen- does not come into play when the new charges stem from a separate incident. State
tence and may inform the court about the character of the defendant, even if it is v. Williams, 2004 WI App 56, 270 Wis. 2d 761, 677 N.W.2d 691, 03−0603.
negative. The prosecutor may not personalize information presented in a way that Evidence obtained from an out−of−court showup is inherently suggestive and
indicates that the prosecutor has second thoughts about the agreement. State v. Wil- will not be admissible unless, based on the totality of the circumstances, the proce-
liams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733, 00−0535. dure was necessary. A showup will not be necessary, however, unless the police
Due process demands that a conviction not be based on unreliable evidence lacked probable cause to make an arrest or, as a result of other exigent circum-
obtained through coerced witness statements resulting from egregious police prac- stances, could not have conducted a lineup or photo array. State v. Dubose, 2005
tices. There are several factors to consider in determining whether police miscon- WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, 03−1690
duct is so egregious that it produces statements that are unreliable as a matter of law A deaf defendant who was shackled during trial and sentencing had the burden
and must be suppressed. State v. Samuel, 2002 WI 34, 252 Wis. 2d 26, 643 N.W.2d to show that he in fact was unable to communicate, not that he theoretically might
423, 99−2587. have had such difficulty. State v. Russ, 2006 WI App 9, 289 Wis. 2d 65, 709 N.W.2d
Although there is no place in a criminal prosecution for gratuitous references to 483, 04−2869.
race, the state may properly refer to race when it is relevant to the defendant’s Dubose does not directly control cases involving identification evidence derived
motive. A racial remark is improper if it is intentionally injected into volatile pro- from accidental confrontations resulting in spontaneous identifications. However,
ceedings when the prosecutor has targeted the defendant’s ethnic origin for empha- in light of developments since it’s time, Marshall, 92 Wis. 2d 101, a case in which
sis in an attempt to appeal to the jury’s prejudices. State v. Chu, 2002 WI App 98, the court determined that identification evidence need not be scrutinized for a due
253 Wis. 2d 666, 643 N.W.2d 878, 01−1934. process violation unless the identification occurs as part of a police procedure

directed toward obtaining identification evidence, does not necessarily resolve all The plaintiff was not deprived of liberty without due process of law when
such cases. The circuit court still has a limited gate−keeping function to exclude arrested and detained pursuant to a lawful warrant, even though the police mistook
such evidence under s. 904.03. State v. Hibl, 2006 WI 52, 290 Wis. 2d 595, 714 the identity of the plaintiff. Baker v. McCollan, 443 U.S. 137 (1979).
N.W.2d 194, 04−2936. The sentencing judge properly considered the defendant’s refusal to cooperate
When analyzing a judicial bias claim, there is a rebuttable presumption that the with police by naming co−conspirators. Roberts v. United States, 445 U.S. 552
judge was fair, impartial, and capable of ignoring any biasing influences. The test (1980).
for bias comprises two inquiries, one subjective and one objective, either of which The federal constitution does not prohibit electronic media coverage of a trial
can violate a defendant’s due process right to an impartial judge. Actual bias on over the defendant’s objections. Chandler v. Florida, 449 U.S. 560 (1981).
the part of the decision maker meets the objective test. The appearance of partiality
can also offend due process. Every procedure that would offer a possible tempta- Due process does not require police to preserve breath samples in order to
tion to the average person as a judge not to hold the balance nice, clear, and true introduce breath−analysis test results at trial. California v. Trombetta, 467 U.S. 479
between the state and the accused, denies the latter due process of law. State v. Gud- (1984).
geon, 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114, 05−1528. After retrial and conviction following the defendant’s successful appeal, sen-
Absent a pervasive and perverse animus, a judge may assess a case and potential tencing authority may justify an increased sentence by affirmatively identifying
arguments based on what he or she knows from the case in the course of the judge’s relevant conduct or events that occurred subsequent to the original sentencing.
judicial responsibilities. Opinions formed by the judge on the basis of facts Wasman v. U.S. 468 U.S. 559 (1984). See also Texas v. McCullough, 475 U.S. 134
introduced or events occurring in the course of current proceedings, or of prior pro- (1986).
ceedings, do not constitute a basis for a bias or partiality motion unless they display When an indigent defendant’s sanity at the time of committing a murder was seri-
a deep−seated favoritism or antagonism that would make fair judgment impossible. ously in question, due process required access to a psychiatrist and the assistance
State v. Rodriguez, 2006 WI App 163, 295 Wis. 2d 801, 722 N.W.2d 136, 05−1265. necessary to prepare an effective defense based on the mental condition. Ake v.
Dubose did not alter the standard for determining whether admission of an out− Oklahoma, 470 U.S. 68 (1985).
of−court identification from a photo array violates due process. State v. Drew, 2007 A prosecutor’s use of a defendant’s postarrest, post−Miranda warnings silence
WI App 213, 305 Wis. 2d 641, 740 N.W.2d 404, 06−2522. as evidence of the defendant’s sanity violated the due process clause. Wainwright
Under Dubose a showup is necessary when officers lack other constitutional v. Greenfield, 474 U.S. 284 (1986).
means to obtain a suspect’s identification. However, when probable cause to arrest Coercive police activity is a necessary predicate to a finding that a confession
exists, whether it is related to the offense under investigation or some other offense, was not “voluntary” within the meaning of the due process clause. Colorado v.
officers have the constitutional means to detain the suspect and secure an identifica- Connelly, 479 U.S. 157 (1986).
tion using a procedure that is less conducive to misidentification. State v. Naw-
rocki, 2008 WI App 23, 308 Wis. 2d 227, 746 N.W.2d 509, 06−2502. A defendant who denies elements of an offense is entitled to an entrapment
The admissibility of an in−court identification following an inadmissible out− instruction as long as there is sufficient evidence from which a jury could find
of−court identification depends on whether the evidence has been come at by entrapment. Mathews v. United States, 485 U.S. 58 (1988).
exploitation of that illegality or instead by means sufficiently distinguishable to be Unless the defendant shows bad faith on the part of law enforcement, failure to
purged of the primary taint. To be admissible, the in−court identification must rest preserve potentially useful evidence does not violate due process. Arizona v.
on an independent recollection of the witness’s initial encounter with the suspect. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281 (1988).
State v. Nawrocki, 2008 WI App 23, 308 Wis. 2d 227, 746 N.W.2d 509, 06−2502. New constitutional rules announced by the U.S. Supreme Court that place cer-
When the prosecutor goes beyond reasoning from the evidence to a conclusion tain kinds of primary individual conduct beyond the power of the states to pro-
of guilt and instead suggests that the jury arrive at a verdict by considering factors scribe, as well as water−shed rules of criminal procedure, must be applied in all
other than the evidence, the statements are impermissible. Improper comments do future trials, all cases pending on direct review, and all federal habeas corpus pro-
not necessarily give rise to a due process violation. For a due process violation, the ceedings. All other new rules of criminal procedure must be applied in future trials
court must ask whether the statements so infected the trial with unfairness as to and incases pending on direct review, but may not provide the basis for a federal
make the resulting conviction a denial of due process. State v. Jorgensen, 2008 WI collateral attack on a state−court conviction. These rules do not constrain the
60, 310 Wis. 2d 138, 754 N.W.2d 77, 06−1847. authority of state courts to give broader effect to new rules of criminal procedure.
Due process requires that vindictiveness against a defendant for having success- Danforth v. Minnesota, 552 U.S. 264, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008).
fully attacked his or her first conviction must play no part in the sentence received Although the state is obliged to prosecute with earnestness and vigor, it is as
after a new trial. Whenever a judge imposes a more severe sentence upon a defend- much its duty to refrain from improper methods calculated to produce a wrongful
ant after a new trial, the reasons for doing so must be free from a retaliatory motive. conviction as it is to use every legitimate means to bring about a just one. Accord-
Because retaliatory motives can be complex and difficult to prove, the U.S. ingly, when the state withholds from a defendant evidence that is material to the
Supreme Court has found it necessary to presume an improper vindictive motive. defendant’s guilt or punishment, it violates the right to due process of law. Evi-
This presumption also applies when a defendant is resentenced following a suc- dence is material when there is a reasonable probability that, had the evidence been
cessful attack on an invalid sentence. However, the presumption stands only when disclosed, the result of the proceeding would have been different. Evidence that
a reasonable likelihood of vindictiveness exists. A new sentence that is longer than is material to guilt will often be material for sentencing purposes as well; the con-
the original sentence, when it implements the original dispositional scheme, is not verse is not always true, however. Cone v. Bell, 556 U.S. ___, 129 S. Ct. 1769; 173
tainted by vindictiveness. State v. Sturdivant, 2009 WI App 5, 316 Wis. 2d 197, L. Ed. 2d 701 (2009).
763 N.W.2d 185, 07−2508. Revocation of probation without a hearing is a denial of due process. Hahn v.
There is not an exclusive possession requirement as an element of the due pro- Burke, 430 F.2d 100.
cess test when apparently exculpatory evidence is not preserved by the state. In this Pretrial publicity; the Milwaukee 14. 1970 WLR 209.
case, while the physical evidence, cell phones, was solely within the state’s posses- Due process; revocation of a juvenile’s parole. Sarosiek, 1973 WLR 954.
sion, the concomitant electronic voicemail evidence was stored elsewhere and
could have been accessed by both the state and the defense until it was destroyed HABEAS CORPUS AND BAIL
by the phone service provider in the normal course of business. Given the facts of Habeas corpus is a proper remedy with which to challenge the personal jurisdic-
this case, however, it was reasonable for the defendant to expect that the state would tion of a trial court over a criminal defendant and to challenge a ruling on a motion
preserve the voicemail recordings. State v. Huggett, 2010 WI App 69, 324 Wis. 2d to suppress evidence when constitutional issues are involved. State ex rel. War-
786, 783 N.W.2d 675, 09−1684. render v. Kenosha County Ct. 67 Wis. 2d 333, 227 N.W.2d 450.
A defendant has a constitutional due process right not to be sentenced on the The scope of inquiry in extradition habeas corpus cases is discussed. State v. Rit-
basis of race or gender. The defendant has has the burden to prove that the circuit ter 74 Wis. 2d 227, 246 N.W.2d 552.
court actually relied on race or gender in imposing its sentence. The standard of
proof is clear and convincing evidence. The defendant must provide evidence indi- Relief under habeas corpus is not limited to the release of the person confined.
cating that it is highly probable or reasonably certain that the circuit court actually State ex rel. Memmel v. Mundy, 75 Wis. 2d 276, 249 N.W.2d 573.
relied on race or gender when imposing its sentence. A reasonable observer test Application of bail posted by third parties to the defendant’s fines was not uncon-
is rejected. State v. Harris, 2010 WI 79, 326 Wis. 2d 685, 786 N.W.2d 409, stitutional. State v. Iglesias, 185 Wis. 2d 118, 517 N.W.2d 175 (1994).
08−0810. A defendant’s prejudicial deprivation of appellate counsel, be it the fault of the
In order to establish that the state violated his or her due process rights by attorney or the appellate court, is properly remedied by a petition for habeas corpus
destroying apparently exculpatory evidence, the defendant must demonstrate that: in the Supreme Court. State ex rel. Fuentes v. Court of Appeals, 225 Wis. 2d 446,
1) the evidence destroyed possessed an exculpatory value that was apparent to 593 N.W.2d 48 (1999), 98−1534.
those who had custody of the evidence before the evidence was destroyed; and 2) A question of statutory interpretation may be considered on a writ of habeas cor-
the evidence is of such a nature that the defendant is unable to obtain comparable pus only if noncompliance with the statute at issue resulted in the restraint of the
evidence by other reasonably available means. The mere possibility that evidence petitioner’s liberty in violation of the constitution or the court’s jurisdiction. State
of a bullet having been lodged in a destroyed van after a detective thoroughly ex rel. Hager v. Marten, 226 Wis. 2d 687, 594 N.W.2d 791 (1999), 97−3841.
examined the van and specifically looked for just such a bullet or bullet strike did As an extraordinary writ, habeas corpus is available to a petitioner only under
not support the argument that the van’s purported exculpatory value was apparent. limited circumstances. A party must be restrained of his or her liberty, must show
State v. Munford, 2010 WI App 168, ___ Wis. 2d ___, ___ N.W.2d ___, 09−2658. that the restraint was imposed by a body without jurisdiction or that the restraint
Denial of a change of venue due to local prejudice solely because the offense is was imposed contrary to constitutional protections, and there must be no other ade-
a misdemeanor is unconstitutional. Groppi v. Wisconsin, 400 U.S. 505. quate remedy available in the law. Haas v. McReynolds, 2002 WI 43, 252 Wis. 2d
133, 643 N.W.2d 771, 00−2636.
The retention of 10% of a partial bail deposit, with no penalty for release on
recognizance or when full bail is given, does not violate equal protection require- SELF−INCRIMINATION AND CONFESSION
ments. Schilb v. Kuebel, 403 U.S. 357. Granting a witness immunity and ordering him to answer questions does not vio-
A defendant convicted of selling heroin supplied by undercover police was not late his constitutional rights. State v. Blake, 46 Wis. 2d 386, 175 N.W.2d 210.
entrapped. Hampton v. United States, 425 U.S. 484. Although a person may invoke the right against self incrimination in a civil case
Prisons must provide inmates with a law library or legal advisers. Bounds v. in order to protect himself in a subsequent criminal action, an inference against the
Smith, 430 U.S. 817. person’s interest may be drawn as a matter of law based upon an implied admission
Due process was not denied when a prosecutor carried out a threat to reindict the that a truthful answer would tend to prove that the witness had committed the crimi-
defendant on a more serious charge if the defendant did not plead guilty to the original act or what might constitute a criminal act. Molloy v. Molloy, 46 Wis. 2d 682,
nal charge. Bordenkircher v. Hayes, 434 U.S. 357 (1978). 176 N.W.2d 292.

A hearing to determine the voluntariness of a confession is not necessary when The defendant’s voluntary statements were admissible for impeachment even
a defendant knowingly fails to object to the evidence for purposes of trial strategy. though they were obtained in violation of Miranda. State v. Mendoza, 96 Wis. 2d
Police officers need not stop all questioning after a suspect requests an attorney, 106, 291 N.W.2d 478 (1980).
since the suspect can change his mind and volunteer a statement. Sharlow v. State, When the accused cut off the initial interrogation but was interrogated by another
47 Wis. 2d 259, 177 N.W.2d 88. officer 9 minutes later following fresh Miranda warnings, the confession was
The admission of evidence of the spending of money after a burglary did not admissible. State v. Shaffer, 96 Wis. 2d 531, 292 N.W.2d 370 (Ct. App. 1980).
unconstitutionally require the defendant to testify against himself in order to rebut By testifying as to his actions on the day a murder was committed, the defendant
it. State v. Heidelbach, 49 Wis. 2d 350, 182 N.W.2d 497. waived his self−incrimination privilege on cross−examination as to prior actions
When the defendant volunteered an incriminatory statement outside the pres- related to the murder that were the subject of the pending prosecution. Neely v.
ence of retained counsel, the statement was admissible. State v. Chabonian, 50 Wis. State, 97 Wis. 2d 38, 292 N.W.2d 859 (1980).
2d 574, 185 N.W.2d 289. Miranda warnings were unnecessary when an officer entered the defendant’s
There is no requirement that a hearing as to the voluntariness of a confession be home in the belief that the defendant might have killed his wife 4 days earlier, and
separated into 2 stages as to the circumstances leading up to it and then as to its con- asked, “Where is your wife?” State v. Kraimer, 99 Wis. 2d 306, 298 N.W.2d 568
tent. The content of Miranda warnings is discussed. Bohachef v. State, 50 Wis. (1980).
2d 694, 185 N.W.2d 339. A prosecutor’s comment on the failure of an alibi witness to come forward with
The argument by the district attorney that certain evidence was uncontroverted an alibi story did not infringe on the defendant’s right of silence. State v. Hoffman,
does not amount to a comment on the defendant’s failure to testify. Bies v. State, 106 Wis. 2d 185, 316 N.W.2d 143 (Ct. App. 1982).
53 Wis. 2d 322, 193 N.W.2d 46. The defendant’s silence both before and after Miranda warnings may not be
Questions of investigational versus custodial interrogation in relation to a con- referred to at trial by the prosecution. State v. Fencl, 109 Wis. 2d 224, 325 N.W.2d
fession are discussed. Mikulovsky v. State, 54 Wis. 2d 699, 196 N.W.2d 748. 703 (1982).
A defendant who, believing he was seriously wounded, began to tell what hap- Videotapes of sobriety tests were properly admitted to show physical manifesta-
pened and was given Miranda warnings waived his rights when he continued to tions of the defendant driver’s intoxication. State v. Haefer, 110 Wis. 2d 381, 328
talk. Waiver need not be express when the record shows the defendant was con- N.W.2d 894 (Ct. App. 1982).
scious and alert and said he understood his rights. State v. Parker, 55 Wis. 2d 131, A John Doe subpoena requiring the production of income tax returns violated the
197 N.W.2d 742. self−incrimination right. B. M. v. State, 113 Wis. 2d 183, 335 N.W.2d 420 (Ct. App.
The privilege against self−incrimination does not extend to the production of 1983).
corporate records by their custodian, even though the records may tend to incrimi- A statement given to police, without Miranda warnings, while the accused was
nate the custodian personally. State v. Balistrieri, 55 Wis. 2d 513, 201 N.W.2d 18. in an emergency room that the accused was the driver in a fatal crash was admissi-
A defendant who waived counsel and who agreed to sign a confession admitting ble. State v. Clappes, 117 Wis. 2d 277, 344 N.W.2d 141 (1984).
18 burglaries in return for an agreement that he would be prosecuted for only one, After a guilty plea the privilege against self−incrimination continues at least until
could not claim that the confession was improperly induced. The state has the bur- sentencing. State v. McConnohie, 121 Wis. 2d 57, 358 N.W.2d 256 (1984).
den of showing voluntariness beyond a reasonable doubt. Pontow v. State, 58 Wis. When the defendant does not testify but presents his own argument to the jury,
2d 135, 205 N.W.2d 775. the prosecutor may caution the jury that the defendant’s statements are not evi-
The administration of a blood or breathalyzer test does not violate the defen- dence. State v. Johnson, 121 Wis. 2d 237, 358 N.W.2d 824 (Ct. App. 1984).
dant’s privilege against self−incrimination. State v. Driver, 59 Wis. 2d 35, 207 When a relative of the accused contacted police and asked if anything could be
N.W.2d 850. done to help the accused, a subsequent confession elicited from the accused by the
Factors to be considered in determining whether a confession is voluntary are relative was inadmissible. Factors to be considered in determining when a civilian
discussed. State v. Wallace, 59 Wis. 2d 66, 207 N.W.2d 855. becomes an agent of the police are discussed. State v. Lee, 122 Wis. 2d 266, 362
A voluntary confession is not rendered inadmissible because the arrest was made N.W.2d 149 (1985).
outside the statutory jurisdictional limits of the arresting officer. State v. Ewald, 63 When police knew that a suspect had asked his wife to contact an attorney and
Wis. 2d 165, 216 N.W.2d 213. did not inform the suspect when the attorney arrived at the police station, a confes-
While Miranda does require that upon exercise of the defendant’s 5th amend- sion obtained after the attorney’s arrival was inadmissible. State v. Middleton, 135
ment privilege the interrogation must cease, Miranda does not explicitly state that Wis. 2d 297, 399 N.W.2d 917 (Ct. App. 1986).
the defendant may not, after again being advised of his rights, be interrogated in the Police had no duty to inform a suspect during custodial interrogation that a law-
future. State v. Estrada, 63 Wis. 2d 476, 217 N.W.2d 359. yer retained by the suspect’s family was present. State v. Hanson, 136 Wis. 2d 195,
Statements given to police without Miranda warnings, while the defendant was 401 N.W.2d 771 (1987).
injured and in bed that he was the driver and had been drinking, while voluntary, Incriminating statements by an intoxicated defendant undergoing medical treat-
were inadmissible since at that time accusatorial attention had focused on him. ment for painful injuries was voluntary since there was no affirmative police mis-
Scales v. State, 64 Wis. 2d 485, 219 N.W.2d 286. conduct compelling the defendant to answer police questioning. State v. Clappes,
The voluntariness of a confession must be determined by examining all the sur- 136 Wis. 2d 222, 401 N.W.2d 759 (1987).
rounding facts under a totality of circumstances test. Brown v. State, 64 Wis. 2d The “rescue doctrine” exception to the Miranda rule is discussed. State v. Kun-
581, 219 N.W.2d 373. kel, 137 Wis. 2d 172, 404 N.W.2d 69 (Ct. App. 1987).
Requirements of a claim of immunity are discussed. State v. Hall, 65 Wis. 2d 18, A probationer’s answers to a probation agent’s questions are “compelled” and
221 N.W.2d 806. may not be used for any purpose in a criminal trial. State v. Thompson, 142 Wis.
The validity of a juvenile confession is determined by an analysis of the totality 2d 821, 419 N.W.2d 564 (Ct. App. 1987).
of the circumstances surrounding the confession. The presence of a parent, guard- The prosecution may comment on an accused’s pre−Miranda silence when the
ian, or attorney is not an absolute requirement for the juvenile to validly waive the accused elects to testify on his own behalf. State v. Sorenson, 143 Wis. 2d 226, 421
right to remain silent but only one of the factors to be considered in determining N.W.2d 77 (1988).
voluntariness. Theriault v. State, 66 Wis. 2d 33, 223 N.W.2d 850. The “functional equivalent” of direct custodial interrogation is discussed. State
A written confession is admissible in evidence, although it is not signed by the v. Cunningham, 144 Wis. 2d 272, 423 N.W.2d 862 (1988).
defendant, so long as the defendant has read the statement and adopted it as his or The admission of an involuntary or coerced confession is subject to the harmless
her own. Kutchera v. State, 69 Wis. 2d 534, 230 N.W.2d 750. error test. State v. Childs, 146 Wis. 2d 116, 430 N.W.2d 353 (Ct. App. 1988).
When the defendant claimed to understand his Miranda rights but agreed to talk The use of Goodchild testimony to impeach the defendant’s trial testimony does
to police without counsel because of a stated inability to afford a lawyer, further not violate the privilege against self−incrimination. State v. Schultz, 152 Wis. 2d
questioning by police was improper and the resulting confession was inadmissible. 408, 448 N.W.2d 424 (1989).
Micale v. State, 76 Wis. 2d 370, 251 N.W.2d 458. An unconstitutionally obtained confession may be admitted and serve as the sole
The state may compel a probationer’s testimony in a revocation proceeding if the basis for a bindover at a preliminary examination. State v. Moats, 156 Wis. 2d 74,
probationer is first advised that the testimony will be inadmissible in criminal pro- 457 N.W.2d 299 (1990).
ceedings arising out of the alleged probation violation, except for purposes of When a psychiatrist did not comply with Miranda, the constitution does not
impeachment or rebuttal. State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664. require exclusion of the results of the interview with the defendant from the compe-
A volunteered confession made while in custody and prior to Miranda warnings tency phase of the trial. State v. Lindh, 161 Wis. 2d 324, 468 N.W.2d 168 (1991).
was held to be admissible despite an earlier inadmissible statement in response to Miranda does not require warning a suspect that he has the right to stop answer-
custodial interrogation. LaTender v. State, 77 Wis. 2d 383, 253 N.W.2d 221. ing questions. State v. Mitchell, 167 Wis. 2d 672, 482 N.W.2d 364 (1992).
No restrictions of the 4th and 5th amendments preclude enforcement of an order Miranda safeguards are not required when a suspect is simply in custody, but are
for handwriting exemplars directed by a presiding judge in a John Doe proceeding. required when the suspect in custody is subjected to interrogation. State v. Coul-
State v. Doe, 78 Wis. 2d 161, 254 N.W.2d 210. thard, 171 Wis. 2d 573, 492 N.W.2d 329 (Ct. App. 1992).
Due process does not require that a John Doe witness be advised of the nature A criminal defendant may be compelled to submit a voice sample consisting of
of the proceeding or that the witness is a “target” of the investigation. Ryan v. State, specific words for purposes of identification. The words do not require a revelation
79 Wis. 2d 83, 255 N.W.2d 910. of the contents of the mind to impart an admission of or evidence of guilt. Com-
The defendant’s confession was admissible although it was obtained through menting on a refusal to give a sample does not violate the right against self−incrimi-
custodial interrogation following the defendant’s request for a lawyer. Leach v. nation. State v. Hubanks, 173 Wis. 2d 1, 496 N.W.2d 96 (Ct. App. 1992).
State, 83 Wis. 2d 199, 265 N.W.2d 495 (1978). A waiver of Miranda rights must be made knowingly and intelligently, as well
When a “conversational” visit was not a custodial interrogation, the defendant’s as voluntarily. A knowing and intelligent waiver must be shown by a preponder-
voluntary statement was admissible despite a lack of Miranda warnings. State v. ance of the evidence as determined from an objective assessment of the circum-
Hockings, 86 Wis. 2d 709, 273 N.W.2d 339 (1979). stances. State v. Lee, 175 Wis. 2d 348, 499 N.W.2d 258 (Ct. App. 1993).
A confession after a 28−hour post−arrest detention was admissible. Wagner v. If police do not use coercive tactics, that a defendant is undergoing medical treat-
State, 89 Wis. 2d 70, 277 N.W.2d 849 (1979). ment or experiencing pain is not determinative on the issue of voluntariness. State
Immunity for compelled testimony contrary to the 5th amendment privilege v. Schambow, 176 Wis. 2d 286, N.W.2d (Ct. App. 1993).
extends to juvenile court proceedings. State v. J.H.S. 90 Wis. 2d 613, 280 N.W.2d When a defendant pleads guilty then appeals the denial of a suppression motion
356 (Ct. App. 1979). under s. 971.31 (10), the harmless error rule may not be applied when a motion to

suppress was erroneously denied. State v. Pounds, 176 Wis. 2d 315, N.W.2d (Ct. only in the presence of counsel. State v. Rodgers, 203 Wis. 2d 83, 552 N.W.2d 123
App. 1993). (Ct. App. 1996), 95−2570.
Miranda protections come into play when a reasonable person in the defendant’s The sufficiency of Miranda warnings given by the police in a foreign language
position would consider himself to be in custody. State v. Pounds, 176 Wis. 2d 315, and a subsequent waiver of those rights may be challenged. If timely notice of the
N.W.2d (Ct. App. 1993). challenge is given the state has the burden to produce evidence to show that the for-
Failure to give Miranda warnings during a telephone conversation initiated to eign language words reasonably conveyed the rights and that waiver was know-
encourage the defendant’s surrender following an armed robbery police suspected ingly and intelligently made. State v. Santiago, 206 Wis. 2d 3, 556 N.W.2d 687
was committed by the defendant did not require suppression of admissions made (1996), 94−1200.
to the police. State v. Stearns, 178 Wis. 2d 845, 506 N.W.2d 165 (Ct. App. 1993). The privilege against self−incrimination may be replaced by a grant of immunity,
Routine booking questions, such as the defendant’s name and address, that are which has the same scope and effect as the privilege itself. The immunity must pro-
not intended to elicit incriminating responses are exempted from the coverage of tect against derivative use of compelled information that could lead to evidence that
Miranda. Miranda safeguards are applicable to questions asked during an arrest could be used in a criminal prosecution as well as information that could be used
or concerning name and residence when the questions relate to an element of the directly. State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778 (1997), 94−2848.
crime. State v. Stevens, 181 Wis. 2d 410, 511 N.W.2d 591 (1994). A defendant’s refusal to submit to a field sobriety test is not protected by the right
The defendant’s intoxication for purposes of motor vehicle statutes did not per against self−incrimination and is admissible as evidence. State v. Mallick, 210 Wis.
se demonstrate an inability to knowingly waive Miranda rights. State v. Beaver, 2d 427, 565 N.W.2d 245 (Ct. App. 1997), 96−3048.
181 Wis. 2d 959, 512 N.W.2d 254 (Ct. App. 1994). Evidence of why a defendant did not testify has no bearing on guilt or innocence,
Coercive police activity is a predicate to establishing involuntariness but does is not relevant, and is inadmissible. State v. Heuer, 212 Wis. 2d 58, 567 N.W.2d
not itself establish involuntariness. Officer dissatisfaction with a defendant’s 638 (Ct. App. 1997), 96−3594.
answers and statements by the officer that cooperation would benefit the defendant A CHIPS proceeding is not a criminal proceeding within the meaning of the 5th
is not coercion without a promise of leniency. State v. Deets, 187 Wis. 2d 629, 523 amendment. Miranda warnings are not required to be given to the CHIPS petition
N.W.2d 180 (Ct. App. 1994). subject, even though the individual is in custody and subject to interrogation, in
A refusal to perform a field sobriety test is not testimony and not protected by order for the subject’s statements to be admissible. State v. Thomas J.W. 213 Wis.
the constitution. The refusal to submit to the test was properly admitted as evidence 2d 264, 570 N.W.2d 586 (Ct. App. 1997), 97−0506.
to determine probable cause for arrest for intoxicated operation of a motor vehicle. That the defendant is detained in a temporary Terry stop does not automatically
State v. Babbit, 188 Wis. 2d 349, 525 N.W.2d 102 (Ct. App. 1994). mean Miranda warnings are not required. Whether the warnings are required
Edwards v. Arizona requires interrogation to cease once a suspect requests an depends on whether a reasonable person in the defendant’s position would have
attorney. It does not prohibit questions designed to accommodate the request. considered himself or herself to be in custody. State v. Gruen, 218 Wis. 2d 581, 582
When in response to being asked his attorney’s name a suspect gave a name and N.W.2d 728 (Ct. App. 1998), 96−2588.
then stated that the person was not an attorney, the interrogating officer was not pre- Use of prearrest silence is barred if it is induced by governmental action. The
vented from continuing interrogation. State v. Lagar, 190 Wis. 2d 423, 526 N.W.2d right to silence was not implicated by a governmental employee defendant’s refusal
836 (Ct. App. 1994). to meet with his supervisors to discuss employment issues. The prosecution was
A forced confession as a condition of probation does not violate the right against free to comment on that refusal. State v. Adams, 221 Wis. 2d 1, 584 N.W.2d 695
self−incrimination. The constitution protects against the use of confessions in sub- (Ct. App. 1998), 97−1926.
sequent criminal prosecutions but does not protect against the use of those state- That a police officer intentionally withheld information that she had a warrant
ments in a revocation proceeding. State v. Carrizales, 191 Wis. 2d 85, 528 N.W.2d for the defendant’s arrest and intended to arrest him at some point was irrelevant
29 (Ct. App. 1995). to whether the defendant was in custody when he made incriminating statements
A suspect’s reference to an attorney who had represented or is presently repre- without having received Miranda warnings. State v. Mosher, 221 Wis. 2d 203, 584
senting the suspect in another matter is not a request for counsel requiring the cessa- N.W.2d 553 (Ct. App. 1998), 97−3535.
tion of questioning. State v. Jones, 192 Wis. 2d 78, 532 N.W.2d 79 (1995). There are 4 requirements that together trigger the privilege against self−incrimi-
nation. The information sought must be: 1) incriminating; 2) personal to the defen-
The rights to counsel and to remain silent are the defendant’s. An attorney not dant; 3) obtained by compulsion; and 4) testimonial or communicative in nature.
requested by the defendant could not compel the police to end questioning by stat- Discovery of information not meeting these criteria is not barred. State v. Revels,
ing that no questioning was to take place outside his presence. State v. Jones, 192 221 Wis. 2d 315, 585 N.W.2d 602 (Ct. App. 1998), 97−3148.
Wis. 2d 78, 532 N.W.2d 79 (1995). The application of the “fruit of the poisonous tree” doctrine to violations of
Once given, it is not necessary to repeat the Miranda warnings during an inves- Miranda that are not also violations of the 5th or 14th amendment is improper. A
tigation of the same person for the same crime. State v. Jones, 192 Wis. 2d 78, 532 failure to administer Miranda warnings that was unaccompanied by any actual
N.W.2d 79 (1995). coercion is insufficient to result in an imputation of taint to subsequent statements.
While polygraph tests are inadmissible, post−polygraph interviews, found dis- State v. Armstrong, 223 Wis. 2d 331, 588 N.W.2d 606 (1999), 97−0925.
tinct both as to time and content from the examination that preceded them and the The state must prove by a preponderance of the evidence that a confession was
statements made therein, are admissible. State v. Johnson, 193 Wis. 2d 382, 535 voluntarily made. Whether a confession is true or false cannot play a part in deter-
Wis. 2d 441 (Ct. App. 1995). See also State v. Greer, 2003 WI App 112, 265 Wis. mining whether it was voluntary. A relevancy objection to questioning regarding
2d 463, 666 N.W.2d 518, 01−2591 and State v. Davis, 2008 WI 71, 310 Wis. 2d 583, the truthfulness of a confession was sufficient to preserve the issue for appeal. State
751 N.W.2d 332, 06−1954. v. Agnello, 226 Wis. 2d 164, 593 N.W.2d 427 (1999), 96−3406.
The privilege against self−incrimination extends beyond sentencing as long as If a statement secured by the police is voluntary, although in violation of
a defendant has a real fear of further incrimination, as when an appeal is pending, Miranda, it may be used to impeach the defendant’s conflicting testimony,
before an appeal of right or plea withdrawal has expired, or when the defendant although it is inadmissible in the prosecution’s case−in−chief. Whether the state-
intends or is in the process of moving for sentence modification and shows a rea- ment is voluntary depends on whether it was compelled by coercive means or
sonable chance of success. State v. Marks, 194 Wis. 2d 79, 533 N.W.2d 730 (1995). improper police practices, as indicated by the totality of the circumstances. State
A defendant may selectively waive Miranda rights. Refusal to answer specific v. Franklin, 228 Wis. 2d 408, 596 N.W.2d 855 (Ct. App. 1999), 98−2420.
questions does not assert an overall right to to silence, if there is an unequivocal When a criminal defendant objects to testimony of his or her out−of−court state-
expression of selective invocation. State v. Wright, 196 Wis. 2d 149, 537 N.W.2d ment as incomplete or attempts to cross−examine the witness on additional parts
134 (Ct. App. 1995), 94−3004. of the statement, the court must make a discretionary determination regarding
Whether incriminating statements made following an illegal arrest are admissi- whether the additional portions are required for completeness. Additional portions
ble depends on whether the statements were obtained by means sufficiently atte- of the defendant’s statement are not inadmissible solely because the defendant
nuated from the illegal act. The factors to be considered are voluntariness, proxim- chooses not to testify. State v. Anderson, 230 Wis. 2d 121, 600 N.W.2d 913 (Ct.
ity of conduct to the confession, the presence of intervening circumstances, and App. 1999), 98−3639.
flagrancy of the misconduct. State v. Tobias, 196 Wis. 2d 537, 538 N.W.2d 843 (Ct. Miranda warnings need not be given in the suspect’s language of choice, but the
App. 1995), 95−0324. warnings must be given in a language in which the suspect is proficient enough to
The right to counsel under Miranda must be personally invoked by the suspect. to understand the concepts that are involved in the warnings. State v. Hindsley,
Simply retaining counsel is not an unequivocal statement that the suspect wishes 2000 WI App 130, 237 Wis. 2d 358, 614 N.W.2d 48, 99−1374.
to deal with the police only in the presence of counsel. State v. Coerper, 199 Wis. Whether a suspect knowingly and intelligently waived Miranda rights is a sepa-
2d 216, 544 N.W.2d 423 (1996), 94−2791. rate inquiry from whether the statement was voluntary. State v. Hindsley, 2000 WI
App 130, 237 Wis. 2d 358, 614 N.W.2d 48, 99−1374.
Once a suspect invokes the right to counsel, judicial inquiry into voluntariness
is beside the point. Physical evidence derived from statements made in violation Whether an interrogation that resumed after an invocation of the right to remain
of the asserted right must be suppressed. However, evidence admitted in violation silent violated the right against self−incrimination is analyzed based on whether:
of this rule is subject to a harmless error analysis. State v. Harris, 199 Wis. 2d 227, 1) the original interrogation was promptly terminated; 2) it was resumed after a sig-
544 N.W.2d 545 (1996), 93−0730. nificant amount of time; 3) Miranda warnings were given at the beginning of the
subsequent interrogation; 4) a different officer resumed the questioning; and 5) the
Prosecution comments on a defendant’s claimed lack of memory and subsequent subsequent interrogation was limited to a different crime. These factors are not
silence during a police interview conducted shortly after the incident when the exclusively controlling, however, and should not be woodenly applied. State v.
defendant testified at length at trial on the same subject did not violate the right Badker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.W.2d 142, 99−2943.
against self−incrimination when the comments were intended to impeach the There is an exception to the application of Miranda for routine booking ques-
defendant’s testimony and not to ask the jury to infer guilt from the defendant’s tions. The questions must be asked: 1) by an agency ordinarily involved in booking
silence. State v. Wulff, 200 Wis. 2d 318, 546 N.W.2d 522 (Ct. App. 1996), suspects; 2) during a true booking; and 3) shortly after the suspect is taken into cus-
95−1732. tody. The test of whether questioning constitutes interrogation and is not covered
A suspect’s declaration that he did not wish to speak to a specific police officer by the exception if in light of all the circumstances the police should have known
is not an invocation of the right to remain silent. Police adoption of “good cop/bad that the question was reasonably likely to elicit an incriminating response. State
cop” roles did not render an interrogation coercive and its results inadmissible. v. Bryant, 2001 WI App 554, 241 Wis. 2d 554, 624 N.W.2d 865, 00−0686.
State v. Owen, 202 Wis. 2d 620, 551 N.W.2d 50 (Ct. App. 1996), 95−2631. When the defendant’s plea put his mental competency at issue and his attorney
A suspect’s silence, standing alone, is insufficient to unambiguously invoke the consented to 2 competency examinations and had actual notice of them, the use of
right to remain silent. State v. Ross, 203 Wis. 2d 66, 552 N.W.2d 428 (Ct. App. those reports during sentencing did not violate the right against self−incrimination.
1996), 95−1671. State v. Slagoski, 2001 WI App 112, 244 Wis. 2d 49, 629 N.W.2d 50, 00−1586.
A suspect’s statement to his mother during an arrest that she should call a lawyer If the defendant opens the door to government questioning by the defendant’s
was not an unequivocal statement that the suspect wished to deal with the police own remarks about post−arrest behavior or by defense counsel’s questioning, the

state may use the defendant’s silence for the limited purpose of impeaching the Neither the text nor the spirit of the 5th amendment confers a privilege to lie.
defendant’s testimony. When defense counsel asked leading questions of the offi- Proper invocation of the privilege against compulsory self−incrimination allows a
cer who conducted a post−Miranda interview of the defendant that implied the witness to remain silent, but not to swear falsely. No matter how illusory the right
defendant had actively denied the crime charged, the state was permitted to clarify to silence may seem to the defendant, that does not exert a form of pressure that
that defendant had not answered all questions asked of him. State v. Nielsen, 2001 exonerates an otherwise unlawful lie. State v. Reed, 2005 WI 53, 280 Wis. 2d 68,
WI App 192, 247 Wis. 2d 466, 634 N.W.2d 325, 00−3224. 695 N.W.2d 315, 03−1781.
A defendant who offers expert testimony to show the lack of a psychological pro- A prosecuting attorney ordinarily may not comment on an accused’s decision not
file of a sex offender puts his or her mental status at issue and waives the right to testify. There are circumstances, however, when an accused opens the door to
against self−incrimination. A defendant who intends to present such evidence may a measured response by the prosecuting attorney. It may be proper for a prosecutor
be ordered to submit to a psychiatric evaluation by a state−selected expert. If after to comment on an accused’s failure to testify after the accused’s account of events
an exam by the state’s expert the defendant foregoes the presentation of the testi- are given during opening statements but the accused later refuses to testify. State
mony, the state is barred from introducing any evidence derived from the state− v. Moeck, 2005 WI 57, 280 Wis. 2d 277, 695 N.W.2d 783, 03−0002.
sponsored exam on the issue of guilt. State v. Davis, 2001 WI App 210, 247 Wis. If a defendant takes the stand in order to overcome the impact of confessions ille-
2d 917, 634 N.W.2d 922, 00−2916. gally obtained and hence improperly introduced, his or her testimony is tainted by
A defendant can only be found not guilty by reason of mental disease or defect the same illegality that rendered the confessions themselves inadmissible. The
after admitting to the criminal conduct or being found guilty. While the decision state has the burden to prove beyond a reasonable doubt that its use of the unlaw-
made in the responsibility phase is not criminal in nature, the mental responsibility fully obtained statements did not induce the defendant’s testimony. Because the
phase remains a part of the criminal case in general and the defendant is entitled ultimate conclusion as to whether the defendant was impelled to testify is a question
to invoke the 5th amendment at the mental responsibility phase without penalty. of constitutional fact, the circuit court may not hold an evidentiary hearing when
State v. Langenbach, 2001 WI App 222, 247 Wis. 2d 933, 634 N.W.2d 916, making the determination. The hearing is a paper review during which a circuit
01−0851. court makes findings of historical fact based on the record. State v. Anson, 2004
A suspect who is detained during the execution of a search warrant has not suf- WI 96, 282 Wis. 2d 629, 698 N.W.2d 776, 03−1444.
fered a restraint on freedom of movement of the degree associated with a formal All custodial interrogation of juveniles must be electronically recorded where
arrest and is not in custody for purposes of Miranda. Handcuffing after questioning feasible, and without exception when questioning occurs at a place of detention.
cannot operate retroactively to create custody for purposes of Miranda as a reason- State v. Jerrell C.J. 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110, 02−3423.
able person’s perception at the time of questioning cannot be affected by later Failure to call a juvenile suspect’s parents for the purpose of depriving the juve-
police activity. State v. Goetz, 2001 WI App 294, 249 Wis. 2d 380, 638 N.W.2d nile of the opportunity to receive advice and counsel will be considered strong evi-
386, 01−0954. dence that coercive tactics were used to elicit the incriminating statements, but the
If a suspect makes an ambiguous or equivocal reference to counsel, the police call is not mandatory. State v. Jerrell C.J. 2005 WI 105, 283 Wis. 2d 145, 699
need neither cease questioning nor clarify the suspect’s desire for counsel, although N.W.2d 110, 02−3423.
the latter will often be good police practice. State v. Jennings, 2002 WI 44, 252 Wis. Despite Patane, 542 U.S. 630, evidence obtained as a direct result of an inten-
2d 228, 647 N.W.2d 142, 00−1680. tional violation of Miranda is inadmissible under Article I, s. 8, of the Wisconsin
The standard for whether a person is in custody so as to require Miranda warn- Constitution. State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899,
ings is whether a reasonable innocent person in the situation would believe he or 00−2590.
she was in custody. Stated differently, the standard is the objective one of the rea- When a request to remain silent is ambiguous, police need not endeavor to clarify
sonable person, not the subjective one of the suspect in the particular case, who may the suspect’s request. A suspect’s statement, “I don’t know if I should speak to
assume he or she is being arrested because he or she knows there are grounds for you,” was insufficient to unambiguously invoke the right to remain silent. State v.
an arrest. State v. Morgan, 2002 WI App 124, 254 Wis. 2d 602, 648 N.W.2d 23, Hassel, 2005 WI App 80, 280 Wis. 2d 637, 696 N.W.2d 270, 04−1824.
01−2148. That a lawyer who, while present during questioning, instructed the interrogat-
The right against self−incrimination survives conviction and remains active ing officer not to read the Miranda warnings and told his client that if the warnings
while a direct appeal is pending. A probationer may be compelled to answer self− were not given, whatever he said could not be used in court did not relieve the offi-
incriminating questions from a probation or parole agent, or suffer revocation for cer from the duty to read the warnings. State v. Rockette, 2005 WI App 205, 287
refusing to do so, only if there is a grant of immunity rendering the testimony inad- Wis. 2d 257, 704 N.W.2d 382, 04−2731.
missible in a criminal prosecution. State ex rel. Tate v. Schwarz, 2002 WI App 127,
A two−pronged subjective/objective test is applicable for determining whether,
257 Wis. 2d 40, 654 N.W.2d 438, 00−1635.
as a matter of law, a police officer’s statements given in a criminal investigation are
The clear rule governing the 6th amendment right to counsel is that once adver-
coerced and involuntary, and therefore subject to suppression. In order for state-
sarial judicial proceedings have commenced, the accused has a right to legal repre-
ments to be considered sufficiently compelled such that immunity attaches, a police
sentation when subject to state interrogation. At the onset of post−charge police
interrogations, the accused must be made aware that the adversarial process has officer must subjectively believe he or she will be fired for asserting the privilege
begun and that he or she can request the assistance of counsel at the interrogations. against self−incrimination, and that belief must be objectively reasonable. State v.
State v. Anson, 2002 WI App 270, 258 Wis. 2d 433, 654 N.W.2d 48, 01−2907. Brockdorf, 2006 WI 76, 291 Wis. 2d 635, 717 N.W.2d 657, 04−1519. See also State
Miranda warnings need only be administered to individuals who are subjected v. McPike, 2009 WI App 166, 322 Wis. 2d 561, 776 N.W.2d 617, 08−3037.
to custodial interrogation. An officer’s words and conduct in responding to the When a defendant seeks to exclude prior statements based upon his or her 5th
defendant’s questions regarding the evidence against the defendant was not amendment privilege, he or she must first establish that the statements at issue are
interrogation. State v. Fischer, 2003 WI App 5, 259 Wis. 2d 799, 656 N.W.2d 503, 1) testimonial; 2) compelled; and 3) incriminating. State v. Mark, 2006 WI 78, 292
02−0147. Wis. 2d 1, 718 N.W.2d 90, 03−2068.
Police conduct does not need to be egregious or outrageous in order to be coer- When defense counsel prompted jurors to speculate that the defendant’s alleged
cive. Subtle pressures are considered to be coercive if they exceed the defendant’s cohorts did not testify because they would not corroborate the accusations of an
ability to resist. Pressures that are not coercive in one set of circumstances may be undercover officer, the prosecutor fairly suggested that the pair had the right not to
coercive in another set of circumstances. State v. Hoppe, 2003 WI 43, 261 Wis. 2d testify in accordance with their 5th amendment right against self−incrimination.
294, 661 N.W.2d 407, 00−1886. It is not improper for a prosecutor to note that the defendant has the same subpoena
A Miranda−Goodchild hearing to determine voluntariness of confessions is an powers as the government, particularly when done in response to a defendant’s
evidentiary hearing for the parties. It is not a soliloquy for the court. The court must argument about the prosecutor’s failure to call a specific witness. State v. Jaimes,
not permit itself to become a witness or an advocate for one party. A defendant does 2006 WI App 93, 292 Wis. 2d 656, 715 N.W.2d 669, 05−1511.
not receive a full and fair evidentiary hearing when the role of the prosecutor is Under the totality of the circumstances of this case, that it was not necessary for
played by the judge and the prosecutor is reduced to a bystander. State v. Jiles, 2003 a prosecutor interviewing the defendant to formally re−advise the defendant of his
WI 66, 262 Wis. 2d 457, 663 N.W.2d 798, 02−0153. Miranda rights when it was undisputed that the defendant had been advised of his
Police misrepresentation is not so inherently coercive that it renders a statement rights the day before, and he clearly indicated to the prosecutor in her office that
inadmissible; rather, it is simply one factor to consider out of the totality of the cir- he remembered those rights and understood those rights, and therefore the state-
cumstances. State v. Triggs, 2003 WI App 91, 264 Wis. 2d 861, 663 N.W.2d 396, ment the defendant made to the prosecutor was admissible. State v. Backstrom,
02−0447. 2006 WI App 114, 293 Wis. 2d 809, 718 N.W.2d 246, 05−1270.
Coercive conduct by a private person, absent any claim of state involvement, is Pre−custody invocation of the right to counsel was not an invocation of the right
insufficient to render a confession inadmissible on due process grounds. Involun- to counsel under Miranda and therefore the defendant’s ensuing post−Mirandized
tary confession jurisprudence is entirely consistent with settled law requiring some inculpatory statements made while undergoing custodial interrogation did not need
state action to support a claim of violation of the due process clause. The most out- to be suppressed. State v. Kramer, 2006 WI App 133, 294 Wis. 2d 780, 720 N.W.2d
rageous behavior by a private party seeking to secure evidence against a defendant 459, 05−0105.
does not make that evidence inadmissible under the due process clause. State v. Pre−Miranda silence may be used: 1) to impeach a defendant when he or she
Moss, 2003 WI App 239, 267 Wis. 2d 772, 672 N.W.2d 125, 03−0436. testifies; or 2) substantively to suggest guilt. Once the defendant testifies, his or
That the defendant was handcuffed to a ring on a wall for all breaks between her pre−Miranda silence may be used by the prosecutor. State v. Mayo, 2007 WI
interrogations was not coercive in and of itself. State v. Agnello, 2004 WI App 2, 78, 301 Wis. 2d 642, 734 N.W.2d 115, 04−1592.
269 Wis. 2d 260, 674 N.W.2d 594, 02−2599. The corroboration rule is a common law rule that requires that a conviction of
Relay questioning implies that different interrogators relieve each other in an a crime may not be grounded on the admission or confessions of the accused alone.
effort to put unremitting pressure on a suspect. When over a 12−hour period there There must be corroboration of a significant fact in order to produce a confidence
were breaks during and between 3 interrogation sessions with 3 interrogation teams in the truth of the confession. The significant fact need not independently establish
and at least one of the changes in interrogation teams was due to a shift change, a specific element of a crime. It is also unnecessary that the significant fact be par-
there was no impermissible relay questioning or excessively long isolation or ticular enough to independently link the defendant to the crime. State v. Bannister,
interrogation. State v. Agnello, 2004 WI App 2, 269 Wis. 2d 260, 674 N.W.2d 594, 2007 WI 86, 302 Wis. 2d 158, 734 N.W.2d 892, 05−0767.
02−2599. Once the defendant initiated the topic of why he chose to remain silent and his
A convicted defendant was not entitled to Miranda warnings prior to a court−or- explanation put him in a better position than had he not mentioned the reason, it was
dered presentence investigation when the defendant’s admission to the crime given not then fundamentally unfair for the state on cross−examination to attack the credi-
in the investigation after denying the crime at trial was later used in a perjury pro- bility of that explanation. The suggestion of fabrication in cross−examination was
secution against the defendant when the interview was routine and was not con- not fundamentally unfair and not the equivalent of asking the jury to infer guilt from
ducted while the defendant’s jeopardy was still in doubt. State v. Jimmie R.R. 2004 the defendant’s silence. State v. Cockrell, 2007 WI App 217, 306 Wis. 2d 52, 741
WI App 168, 276 Wis. 2d 447, 688 N.W.2d 1, 02−1771. N.W.2d 267, 05−2672.

Under Ross, a suspect’s claimed unequivocal invocation of the right to remain be presented in the civil litigation, despite the assertion of the privilege. Because
silent must be patent. The Ross rule allows no room for an assertion that permits the privilege is constitutionally based, the detriment to the party asserting it should
even the possibility of reasonable competing inferences. There is no invocation of be no more than is necessary to prevent unfair and unnecessary prejudice to the
the right to remain silent if any reasonable competing inference can be drawn. State other side. The general rule is that if the claimant makes a timely request to the
v. Markwardt, 2007 WI App 242, 306 Wis. 2d 420, 742 N.W.2d 546, 06−2871. court, the court should explore all possible measures to select that means that strikes
The fact that an interrogating officer was at times confrontational and raised his a fair balance and accommodates both parties. S.C. Johnson & Son, Inc. v. Morris,
voice was not improper police procedure and did not, by itself, establish police 2010 WI App 6, 322 Wis. 2d 766, 779 N.W.2d 19, 08−1647.
coercion, nor did the length of the defendant’s custody nor her two−hour interroga- When a person who asserted the privilege against self−incrimination in a civil
tion qualify as coercive or improper police conduct. As such, it was improper to proceeding seeks to withdraw the privilege and testify, one of the most important
consider the defendant’s personal characteristics because consideration of personal factors in the balancing process is the timing of the withdrawal. Timing can mean
characteristics is triggered only if there exists coercive police conduct against everything when determining whether the privilege was invoked primarily to
which to balance them. State v. Markwardt, 2007 WI App 242, 306 Wis. 2d 420, abuse, manipulate, or gain an unfair strategic advantage over opposing parties. The
742 N.W.2d 546, 06−2871. trial court is in a far better position than an appellate court to determine whether
Factors to consider in determining if a suspect’s freedom to act is restricted to prejudice has evolved as a consequence of the belated withdrawal of the invocation.
a degree associated with formal arrest so that Miranda warnings are required, It is eminently fair and reasonable that the trial court have the responsibility to per-
include the suspect’s freedom to leave, the purpose, place, and length of the form the balancing test and make the ultimate decision of whether withdrawal is
interrogation, and the degree of restraint. Degree of restraint includes, the manner allowed in the exercise of its discretion. S.C. Johnson & Son, Inc. v. Morris, 2010
in which the suspect is restrained, the number of officers involved and whether: WI App 6, 322 Wis. 2d 766, 779 N.W.2d 19, 08−1647.
1) the suspect is handcuffed; 2) a weapon is drawn; 3) a frisk is performed; 4) the All custodial interrogation of juveniles must be electronically recorded when
suspect is moved to another location; and 5) questioning took place in a police feasible under Jerrell C.J. 2005 WI 105. “Feasible” in this context is not a synonym
vehicle. State v. Torkelson, 2007 WI App 272, 306 Wis. 2d 673, 743 N.W.2d 511,
07−0636. for “effortless.” Although the police officer may not have been capable of record-
Under either a standard requiring only that a suspect be in custody when the ing the initial conversation while in a squad car, nothing prevented the officer from
request for counsel is made or a standard requiring that interrogation be imminent waiting a short time until recording equipment was available. State v. Dionicia M.
or impending when the request for counsel is made, the defendant effectively 2010 WI App 134, ___ Wis. 2d ___, ___ N.W.2d ___, 09−3109.
invoked his Miranda right to counsel when he requested counsel while in custody Jerrell C.J. 2005 WI 105, does not allow the admission of partially recorded
and before law enforcement officers interrogated him. (The court divided on the interrogations of juveniles. A major purpose of the Jerrell C.J. rule is to avoid
question whether to adopt a temporal standard to determine whether a suspect in involuntary, coerced confessions by documenting the circumstances in which a
custody has effectively invoked his or her 5th amendment Miranda right to coun- juvenile has been persuaded to give a statement. This purpose is not served by
sel.) State v. Hambly, 2008 WI 10, 307 Wis. 2d 98, 745 N.W.2d 48, 05−3087. allowing an officer to turn on the recorder only after a juvenile has been convinced
Under Edwards v. Arizona, after the defendant effectively invokes his or her to confess. State v. Dionicia M. 2010 WI App 134, ___ Wis. 2d ___, ___ N.W.2d
Miranda right to counsel, police interrogation, unless initiated by the defendant, ___, 09−3109.
must cease. Interrogation refers not only to express questioning, but also to the If a probationer refuses to incriminate himself or herself as required by a condi-
functional equivalent of express questioning, which means any words or actions on tion of supervision, he or she cannot be automatically revoked on that ground. If
the part of the police other than those normally attendant to arrest and custody that the probationer refuses despite a grant of immunity, his or her probation may be
the police should know are reasonably likely to elicit an incriminating response. revoked on that basis. Any incriminating statements the probationer provides
Interrogation must reflect a measure of compulsion above and beyond that inherent under the grant of immunity may be used as justification for revocation, but not
in custody itself. State v. Hambly, 2008 WI 10, 307 Wis. 2d 98, 745 N.W.2d 48, used in any criminal proceedings. If a probationer is compelled by way of proba-
05−3087. tion rules to incriminate himself or herself, the resulting statements may not be used
In order to establish that a suspect has validly waived the Miranda right to coun- in any criminal proceeding. State v. Peebles, 2010 WI App 156, ___ Wis. 2d ___,
sel after effectively invoking it, the state has the burden to show: 1) as a preliminary ___ N.W.2d ___, 09−3111.
matter, that the suspect initiated further communication, exchanges, or conversa- When both the circuit court and the defendant’s probation agent ordered the
tions with the police; and 2) the suspect waived the right to counsel voluntarily, defendant to attend sex offender counseling, his supervision rules required that he
knowingly, and intelligently. Whether a suspect “initiates” communication or dia- be truthful, that he submit to lie detector tests, and that he fully cooperate with and
logue does not depend solely on the time elapsing between the invocation of the successfully complete sex offender counseling, the probation supervision rules
right to counsel and the suspect’s beginning an exchange with law enforcement, documents explicitly informed the defendant he could be revoked for failure to
although the lapse of time is a factor to consider. State v. Hambly, 2008 WI 10, 307 comply with any conditions, and the defendant gave his statements, at least in part,
Wis. 2d 98, 745 N.W.2d 48, 05−3087. because he was required to take lie detector tests, his statements were compelled
When the defendant asserts that he or she previously invoked his or her right to for purposes of the 5th amendment. Because the statements were then used against
counsel as a basis for invalidating a later waiver, both the burden of going forward him at sentencing to increase his prison sentence, they were incriminating and
with a prima facie case and the burden of persuasion are on the state to show a prior should have been excluded. State v. Peebles, 2010 WI App 156, ___ Wis. 2d ___,
waiver of the 5th amendment/Miranda right to counsel when the defendant has ___ N.W.2d ___, 09−3111.
timely raised the issue. State v. Cole, 2008 WI App 178, 315 Wis. 2d 75, 762 Statements made after Miranda warnings but before contact with requested
N.W.2d 711, 07−2472.
counsel are admissible for impeachment purposes. Oregon v. Hass, 420 U.S. 714.
As a criminal defendant’s constitutional right to testify on his or her behalf is a
fundamental right, it follows that the constitutionally articulated corollary to the A witness who refuses to testify on self−incrimination grounds after the judge
right to testify, the right not to testify, is fundamental as well. Because the right not grants immunity may summarily be found in criminal contempt. United States v.
to testify is fundamental, a defendant’s waiver of this right must be knowing and Wilson, 421 U.S. 309.
voluntary. The circuit court was not obligated to conduct a colloquy during the trial The accused’s silence during police interrogation lacked probative value for
to ensure the defendant waived that right. Nevertheless, the court was required, impeachment of an alibi at trial. United States v. Hale, 422 U.S. 171. See: Doyle
once the issue was raised in the postconviction motion, to determine whether the v. Ohio, 426 U.S. 610.
defendant knowingly and voluntarily waived the right not to testify. State v. Jara- The use of the defendant’s income tax returns to prove a gambling charge did not
millo, 2009 WI App 39, 316 Wis. 2d 538, 765 N.W.2d 855, 08−1785. deny self−incrimination protection. Garner v. United States, 424 U.S. 648.
Without custody, there is no Miranda violation. Although police were present A voluntary interview at a police station was not “custodial interrogation.” Ore-
and asked some questions during what the state conceded was an interrogation gon v. Mathiason, 429 U.S. 492.
from which the defendant high school student was not free to leave, when the defen-
dant was not placed in a police vehicle during questioning and the investigation was An instruction to the jury, over defense objection, not to draw an adverse infer-
being conducted primarily by a school official, the defendant, “if in custody at all, ence from the defendant’s failure to testify did not violate the right against self−in-
was in custody of the school and was not being detained by the police at that time.” crimination. Lakeside v. Oregon, 435 U.S. 333 (1978).
State v. Schloegel, 2009 WI App 85, 319 Wis. 2d 741, 769 N.W.2d 130, 08−1310. While statements made by the defendant in circumstances violating Miranda
A request to speak with family members triggers no constitutional rights in the protections are admissible for impeachment if their trustworthiness satisfies legal
manner that a request to speak with counsel does. The police had no obligation to standards, any criminal trial use against the defendant of involuntary statements is
inform a defendant that her husband was waiting outside. The defendant’s chal- a denial of due process. Mincey v. Arizona, 437 U.S. 385 (1978).
lenge of her Miranda waiver and challenge to the voluntariness of her statements Testimony before a grand jury under a grant of immunity could not constitution-
subsequent to that waiver because of detectives’ evasiveness in response to ques- ally be used for impeachment purposes in a later criminal trial. New Jersey v. Por-
tions regarding the status and location of her husband, who was actually waiting tash, 440 U.S. 450 (1979).
outside the interrogation room, did not go to the validity of her waiver of rights. An explicit statement of waiver is not necessary to support a finding that the
It was the defendant’s responsibility, not her husband’s, to determine whether she
wanted to exercise her 5th amendment rights. State v. Ward, 2009 WI 60, 318 Wis. defendant waived Miranda rights. North Carolina v. Butler, 441 U.S. 369 (1979).
2d 301, 767 N.W.2d 236, 07−0079. A voluntary confession obtained during a custodial interrogation following an
Where the dictates of Miranda are otherwise followed, the only impermissible illegal arrest was inadmissible. Dunaway v. New York, 442 U.S. 200 (1979).
aspect of incommunicado questioning is that which prevents a suspect from speak- A witness compelled by a grant of immunity to testify despite a claim of the privi-
ing with those to whom he or she has a constitutional right to speak. Preventing lege against self−incrimination was property prosecuted for perjured testimony.
others from contacting the suspect has no impact on the suspect’s ability to waive United States v. Apfelbaum, 445 U.S. 115 (1980).
his or her rights or on his or her choice to speak voluntarily with the police. State An officer’s comment that a child might find a loaded gun was not the functional
v. Ward, 2009 WI 60, 318 Wis. 2d 301, 767 N.W.2d 236, 07−0079. equivalent of questioning in violation of Miranda rights. Rhode Island v. Innis, 446
When a defendant seeks to introduce evidence of prior specific instances of vio- U.S. 291 (1980).
lence within the defendant’s knowledge at the time of the incident in support of a The right against self−incrimination is not violated when the defendant who tes-
self−defense claim, an order that the defendant disclose prior to trial any specific tifies in his own defense is impeached by use of the defendant’s prearrest silence.
acts that the defendant knew about at the time of the incident and that the defendant
intends to offer as evidence so that admissibility determinations can be made prior Jenkins v. Anderson, 447 U.S. 231 (1980).
to trial does not violate the protection against compelled self−incrimination. State Upon the defendant’s request, the judge must instruct the jury not to infer guilt
v. McClaren, 2009 WI 69, 318 Wis. 2d 739, 767 N.W.2d 550, 07−2382. from the defendant’s failure to testify. Carter v. Kentucky, 450 U.S. 288 (1981).
An opposing party may object if a person who originally claimed the privilege An accused who requests counsel may not be interrogated without counsel
against self−incrimination in a civil action seeks to withdraw the privilege and tes- unless the accused initiates further communication, exchanges, or conversations
tify. Courts should further the goal of permitting as much testimony as possible to with the police. Edwards v. Arizona, 451 U.S. 477 (1981).

When, for impeachment purposes, the prosecution cross−examined the defend- ground a second time violates Miranda and the repeated statement is inadmissible.
ant as to postarrest silence before the defendant received Miranda warnings, due Missouri v. Seibert, 542 U.S. 177, 159 L. Ed 2d 292, 124 S. Ct. 2601 (2004).
process was not violated. Fletcher v. Weir, 455 U.S. 603 (1982). A failure to give a suspect Miranda warnings does not require suppression of the
When the prosecutor improperly commented to the jury that the defendants did physical fruits of the suspect’s unwarned but voluntary statements. Miranda pro-
not challenge certain accusations against them, the court erred in reversing the con- tects against violations of the self−Incrimination clause, which is not implicated by
viction on appeal without determining whether the error was harmless. U.S. v. the introduction at trial of physical evidence resulting from voluntary statements.
Hasting, 461 U.S. 499 (1983). United States v. Patane, 542 U.S. 600, 159 L. Ed 2d 667, 124 S. Ct. 2620 (2004).
A probationer under an obligation to appear before a probation officer and The 4 warnings Miranda requires are invariable, but the U.S. Supreme Court has
answer questions truthfully was not entitled to Miranda warnings. A confession not dictated the words in which the essential information must be conveyed. The
was, therefore, admissible. Minnesota v. Murphy, 465 U.S. 420 (1984). inquiry is simply whether the warnings reasonably convey to a suspect his or her
The court adopts an “inevitable discovery” exception to the exclusionary rule. rights as required by Miranda. Florida v. Powell, 559 U.S. ___, 130 S. Ct. 1195,
Nix v. Williams, 467 U.S. 431 (1984). 175 L. Ed. 2d 1009 (2010).
Under Edwards, 451 U.S. 477, a voluntary Miranda waiver is sufficient at the
The court adopts a “public safety” exception to the Miranda rule. When the time of an initial attempted interrogation to protect a suspect’s right to have counsel
accused, known to have had gun, did not have a gun at time of arrest in a supermar- present, but not at the time of subsequent interrogation attempts if the suspect ini-
ket, the officer properly asked where the gun was before giving Miranda warnings. tially requested the presence of counsel. However, confessions obtained after a
New York v. Quarles, 467 U.S. 649 (1984). 2−week break in custody and a waiver of Miranda rights are most unlikely to be
A person subjected to custodial interrogation is entitled to Miranda warnings compelled, and hence are unreasonably excluded. Lawful imprisonment imposed
regardless of the nature or severity of the offense. Berkemer v. McCarty, 468 U.S. upon conviction of a crime does not create the coercive pressures identified in
420 (1984). Miranda and is not considered continued custody for determining whether custo-
A suspect who has once responded to unwarned yet uncoercive questioning may dial interrogation ended. Maryland v. Shatzer, 559 U.S. ___, 130 S. Ct. 1213; 175
later waive his or her rights and confess after Miranda warnings are given. Oregon L. Ed. 2d 1045 (2010).
v. Elstad, 470 U.S. 298 (1985). An invocation of the right to remain silent must be unambiguous and unequivo-
The prosecutor’s use of the defendant’s postarrest, post−Miranda−warnings cal. The defendant did not say that he wanted to remain silent or that he did not want
silence as evidence of the defendant’s sanity violated the due process clause. Wain- to talk with the police. Had he made either of these simple, unambiguous state-
wright v. Greenfield, 474 U.S. 284 (1986). ments, he would have invoked his right to cut off questioning. He did neither, so
Police failure to inform the defendant that a third party had retained counsel did he did not invoke his right to remain silent. A suspect who has received and under-
not invalidate the defendant’s waiver of Miranda rights. Moran v. Burbine, 475 stood the Miranda warnings, and has not invoked his Miranda rights, waives the
U.S. 412 (1986). right to remain silent by making an uncoerced statement to the police. Berghuis v.
Exclusion of testimony about the circumstances of a confession deprived the Thompkins, 560 U.S. ___, 130 S. Ct. 2250; 176 L. Ed. 2d 1098 (2010).
defendant of due process and other fundamental constitutional rights. Crane v. Collateral estoppel barred the state from introducing evidence of a van theft as
Kentucky, 476 U.S. 683 (1986). an overt act in a conspiracy charge when the accuseds had earlier been acquitted
When no evidence is present suggesting that police officers sent the suspect’s in the van theft trial. The accused’s silence prior to receiving Miranda warnings
wife in to see him with the hope of obtaining incriminating information, no was properly used to impeach the accused. The prosecution’s reference to post−
“interrogation” was undertaken even though a detective was present and tape Miranda silence was harmless error. Feela v. Israel, 727 F.2d 151 (1984).
recorded the conversation. Arizona v. Mauro, 481 U.S. 520 (1987). Assertion of the constitutional privilege against self−incrimination in federal
Police may not interrogate a suspect held in custody after the suspect has pre- civil litigation: Rights and remedies. Daskal, 64 MLR 243 (1980).
viously requested counsel, even when the interrogation relates to an offense differ- Privilege against self−incrimination−truthful statements may be used in a per-
ent from that for which the suspect requested counsel. Arizona v. Roberson, 486 jury prosecution. 64 MLR 744 (1981).
U.S. 675 (1988). Adding (or Reaffirming) a Temporal Element to the Miranda Warning “You
The custodian of corporate records may not resist a subpoena for records on self− Have a Right to an Attorney. Bazelon. 90 MLR 1009 (2007).
incrimination grounds, regardless of the size of the corporate entity. Braswell v. The privilege against self−incrimination in civil commitment proceedings. 1980
United States, 487 U.S. 99 (1988). WLR 697.
The self−incrimination privilege does not support a refusal to comply with a McNeil v. Wisconsin: Blurring a Bright Line on Custodial Interrogation. 1992
juvenile court’s order to produce a child. Baltimore Soc. Serv. v. Bouknight, 493 WLR 1643.
U.S. 474, 107 L. Ed. 2d 992 (1990).
An undercover officer is not required to give Miranda warnings to a suspect Remedy for wrongs. SECTION 9. Every person is entitled
before surreptitious custodial interrogation. Illinois v. Perkins, 496 U.S. 292, 110
L. Ed. 2d 243 (1990). to a certain remedy in the laws for all injuries, or wrongs which
When counsel is requested, interrogation must cease and may not be reinstated he may receive in his person, property, or character; he ought to
without counsel present even though the accused previously did have an opportu- obtain justice freely, and without being obliged to purchase it,
nity to consult an attorney. Minnich v. Mississippi, 498 U.S. 146, 112 L. Ed. 2d 489
(1990). completely and without denial, promptly and without delay,
Admission of a coerced confession may be found to be “harmless error.” Ari- conformably to the laws.
zona v. Fulminate, 499 U.S. 279, 113 L. Ed. 2d 302 (1991). The constitutional guaranty of a remedy for injuries to person and property does
The 6th amendment right to counsel is offense specific. An accused’s invocation not give a constitutional right to sue the state in tort. There is no right of a citizen
of the right during a judicial proceeding did not constitute an invocation of the right to hold the sovereign substantively liable for torts, and the state, being immune
to counsel under Miranda arising from the 5th amendment guarantees against self− from suit without its consent, may define the conditions under which it will permit
incrimination in regard to police questioning concerning a separate offense. actions against itself. Cords v. State, 62 Wis. 2d 42, 214 N.W.2d 405.
McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158 (1991). The action for common−law seduction is extended to allow recovery against the
A police officer’s subjective and undisclosed view of whether a person being seducer by the woman herself. Slawek v. Stroh, 62 Wis. 2d 295, 215 N.W.2d 9.
interrogated is a suspect is irrelevant to determining whether the person is in cus- The constitution does not entitle state litigants to the exact remedy they desire,
tody and entitled to Miranda warnings. Stansbury v. California, 511 U.S. 318, 128 but merely to their day in court. Wiener v. J.C. Penney Co. 65 Wis. 2d 139, 222
L. Ed. 2d 293 (1994). N.W.2d 149.
Officers need not cease questioning a suspect subject to custodial interrogation Illegal aliens have the right to sue in Wisconsin for injuries negligently inflicted
when the suspect makes an ambiguous reference to an attorney. Although often upon them. Arteaga v. Literski, 83 Wis. 2d 128, 265 N.W.2d 148 (1978).
good practice, it is not necessary that the officer ask clarifying questions. Davis v. No legal rights are conferred by this section. Mulder v. Acme−Cleveland Corp.
United States, 512 U.S. 452, 129 L. Ed. 2d 362 (1994). 95 Wis. 2d 173, 290 N.W.2d 176 (1980).
Miranda and its progeny govern the admissibility of statements made during Pre−1981 statutory paternity proceedings, which vested exclusive authority in
custodial interrogation in both state and federal courts. Miranda may not be over- district attorney to commence paternity action, unconstitutionally denied the child
ruled by act of Congress. Dickerson v. U.S. 530 U.S. 428, 147 L. Ed. 2d 405 (2000). a “day in court.” Accordingly, the child’s action was not barred by any statute of
A witness who denies all culpability has a 5th amendment privilege against self− limitations. In re Paternity of R.W.L. 116 Wis. 2d 150, 341 N.W.2d 682 (1984).
incrimination. Ohio v. Reiner, 532 U.S. 67, 149 LEd 2d 205 (2001).
When an adequate remedy or forum does not exist to resolve disputes or
A prison rehabilitation program that required inmates convicted of sexual assault provide due process, the courts can fashion an adequate remedy. Collins v. Eli
to admit having committed the crime or have prison privileges reduced did not vio- Lilly Co. 116 Wis. 2d 166, 342 N.W.2d 37 (1984).
late the right against self−incrimination although immunity was not granted and
prosecution of previously uncharged crimes that might be revealed by the required The state is not entitled to protection under this section. State v. Halverson, 130
admissions was possible. McKune v. Lile, 536 U.S. 24, 153 L. Ed. 2d 47 (2002). Wis. 2d 300, 387 N.W.2d 124 (Ct. App. 1986).
It is not until statements compelled by police interrogations are used use in a A register in probate’s fee based on the value of the estate does not violate this
criminal case that a violation of the 5th amendment self−incrimination clause section. Treiber v. Knoll, 135 Wis. 2d 58, 398 N.W.2d 756 (1987).
occurs. When a confession was coerced, but no criminal case was ever brought A court faced with a litigant who has engaged in a pattern of frivolous litigation
there could be no violation. Chavez v. Martinez, 538 U.S. 760, 155 L. Ed. 2d 984, has the authority to implement a remedy that may include restrictions on the liti-
123 S. Ct. 1994 (2003). gant’s access to the court. Village of Tigerton v. Minniecheske, 211 Wis. 2d 777,
When the defendant’s refusal to disclose his name was not based on any articu- 565 N.W.2d 586 (Ct. App. 1997), 96−1933.
lated real and appreciable fear that his name would be used to incriminate him, or This section applies only when a prospective litigant seeks a remedy for an
that it would furnish a link in the chain of evidence needed to prosecute him, already existing right. It preserves the right to obtain justice on the basis of law as
application of a criminal statute requiring disclosure of the person’s name when the it in fact exists. Legislative actions define how the law does exist. Aicher v. Wis-
police officer reasonably suspected the person had committed a crime did not vio- consin Patients Compensation Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849,
late the protection against self−incrimination. Hiibel v. Sixth Judicial District 99−2955.
Court of Nevada, Humboldt County, 542 U.S. 177, 159 L. Ed 2d 292, 124 S. Ct. Although Article I, s. 9, itself may not create new rights, it does allow for a rem-
2451 (2004). edy through the existing common law. The goal of providing certainty is not neces-
A custodial interrogation in which no Miranda warnings are given until the sarily achievable, and that is not necessarily a bad thing. The common law devel-
interrogation has produced a confession in which the interrogating officer follows ops to adapt to the changing needs of society. Thomas v. Mallett, 2005 WI 129, 285
the confession with Miranda warnings and then leads the suspect to cover the same Wis. 2d 236, 701 N.W.2d 523, 03−1528.

Victims of crime. SECTION 9m. [As created April 1993] 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
This state shall treat crime victims, as defined by law, with fair- (1987).
ness, dignity and respect for their privacy. This state shall ensure When an officer observed a traffic violation but stopped the vehicle merely to
that crime victims have all of the following privileges and render assistance, inadvertently discovered criminal evidence was admissible.
protections as provided by law: timely disposition of the case; 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
the opportunity to attend court proceedings unless the trial court nothing suggests consideration will encourage illegal searches. State v. Rush, 147
finds sequestration is necessary to a fair trial for the defendant; Wis. 2d 225, 432 N.W.2d 688 (Ct. App. 1988).
reasonable protection from the accused throughout the criminal An escapee does not have a legitimate privacy expectation in premises other than
the penal institution he or she is sent to. State v. Amos, 153 Wis. 2d 257, 450
justice process; notification of court proceedings; the opportu- N.W.2d 503 (Ct. App. 1989).
nity to confer with the prosecution; the opportunity to make a Aerial surveillance using standard binoculars and cameras with generally avail-
statement to the court at disposition; restitution; compensation; able standard and zoom lenses from an airplane flying no lower than 800 feet was
and information about the outcome of the case and the release 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 commu-
of the accused. The legislature shall provide remedies for the nication that will tend to reveal the identity of the informant. The trial court may
violation of this section. Nothing in this section, or in any statute rely on redacted information in determining the informant’s reliability and credibil-
enacted pursuant to this section, shall limit any right of the ity 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).
accused which may be provided by law. [1993 J.R. 2, vote April Evidence obtained from a legal search following two prior illegal searches was
1993] not suppressed when the 3rd search was sufficiently attenuated from the prior two.
State v. Anderson, 165 Wis. 2d 441, 477 N.W.2d 277 (1991).
Factors used to determine the extent of a home’s curtilage are discussed. State
Treason. SECTION 10. Treason against the state shall consist v. Moley, 171 Wis. 2d 207, 490 N.W.2d 764 (Ct. App. 1992).
only in levying war against the same, or in adhering to its Bank customers have no protectable privacy interest in bank records relating to
enemies, giving them aid and comfort. No person shall be con- accounts. State v. Swift, 173 Wis. 2d 870, 496 N.W.2d 713 (Ct. App. 1993).
victed of treason unless on the testimony of two witnesses to the 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
same overt act, or on confession in open court. 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
Searches and seizures. SECTION 11. The right of the door was not a search. State v. Edgeberg, 188 Wis. 2d 339, 524 N.W.2d 911 (Ct.
App. 1994).
people to be secure in their persons, houses, papers, and effects The use of a police dog to sniff an automobile parked in a motel parking did not
against unreasonable searches and seizures shall not be violated; constitute a search. There is no legitimate expectation of privacy in the air space
and no warrant shall issue but upon probable cause, supported 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.
by oath or affirmation, and particularly describing the place to Although a vehicle had been improperly seized, evidence obtained in a later
be searched and the persons or things to be seized. search of the vehicle under a warrant that was not based on information gathered
GENERAL 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.
Electronic eavesdropping, done with the consent of one of the parties, does not When executing a search warrant on private premises, the belongings of a visitor
violate the U.S. constitution. State ex rel. Arnold v. County Court, 51 Wis. 2d 434, on the premises that are plausible repositories for the objects of the search, except
187 N.W.2d 354. those worn by or in the physical possession of persons whose search is not autho-
The prohibition against unreasonable searches and seizures is not limited to rized by the warrant, may be searched. State v. Andrews, 201 Wis. 2d 383, 549
criminal cases. It applies in forfeiture actions arising out of ordinance violations. N.W.2d 210 (1996), 94−1888.
Milwaukee v. Cohen, 57 Wis. 2d 38, 203 N.W.2d 633. Presence in a high drug−trafficking area, a brief meeting of individuals on a side-
An inspection by police of a basement storage room accessible to the public and walk in the afternoon, and the officer’s experience that drug transactions that take
the observation of evidence found there in open view that was later seized under place in that neighborhood involve brief meetings on the street, without more, is
a search warrant did not amount to an improper invasion of the defendant’s privacy. not particularized suspicion justifying an investigative stop. State v. Young, 212
Watkins v. State, 59 Wis. 2d 514, 208 N.W.2d 449 (1973). Wis. 2d 417, 569 N.W.2d 84 (Ct. App. 1997), 97−0034.
Police have a right to lock a car to protect its contents after arresting the driver, A prison inmate does not possess a reasonable expectation of privacy in his body
but if it is already locked they cannot enter it on the pretense of locking it and thus that permits a 4th−amendment challenge to strip searches. Prisoners convicted of
discover contraband. When the car was borrowed, consent by the lawful user of crimes are protected from cruel and unusual treatment that prohibits prison officials
the car was sufficient to allow a search and any containers found could be opened from utilizing strip searches to punish, harass, humiliate, or intimidate inmates
and examined. Soehle v. State, 60 Wis. 2d 72, 208 N.W.2d 341. regardless of their status in the institution. Al Ghashhiyah v. McCaughtry, 230 Wis.
When officers, armed with a search warrant, knocked on a door, pushed it open 2d 587, 602 N.W.2d 307 (Ct. App. 1999), 98−3020.
when the defendant opened it 2 inches, and put him under restraint before showing Police failure to comply with the rule of announcement in violation of the 4th
the warrant, they acted legally. State v. Meier, 60 Wis. 2d 452, 210 N.W.2d 685. amendment and Art. I, s. 11, did not require suppression of the evidence seized
The observation of tools in a car by police officers did not constitute a search, when the officers relied, in objective good faith, upon the pronouncements of the
and the tools could be seized and were properly admissible into evidence. Ander- Wisconsin Supreme Court, as no remedial purpose would be served. State v. Ward,
son v. State, 66 Wis. 2d 233, 223 N.W.2d 879. 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 2−step
Pertinent to the validity of an investigative stop is whether the facts available to review. The findings of evidentiary or historical fact are reviewed for clear error
the officer at the moment of the seizure warrant a man of reasonable caution in the to determine if they are contrary to the great weight and clear preponderance of the
belief that the action taken was appropriate. Wendricks v. State, 72 Wis. 2d 717, evidence. The ultimate determination of constitutional fact is reviewed de novo.
242 N.W.2d 187. State v. Martwick, 2000 WI 5, 231 Wis. 2d 801, 604 N.W.2d 552, 98−0101.
When an abused child, an occupant of defendant’s house, was accompanied to Generally a premises warrant authorizes the search of all items that are plausible
the house by social workers to recover the child’s belongings and exhibited to the receptacles of the objects of the search. When currency was an object, looking
workers the instruments used to inflict punishment, a subsequent search warrant through documents for hidden currency was appropriate. When the incriminating
was not tainted by an unconstitutional search. State v. Killory, 73 Wis. 2d 400, 243 nature of the document was apparent upon brief perusal, its seizure was justified
N.W.2d 475. under the plain view doctrine. State v. Oswald, 2000 WI App 3, 232 Wis. 2d 103,
When evidence seized in an illegal search was admitted, no reversible error 606 N.W.2d 238, 97−1219.
resulted when other evidence uninfluenced by the inadmissible evidence was suffi- When a person turns material over to a 3rd party, the person who turned over the
cient to convict. Kelly v. State, 75 Wis. 2d 303, 249 N.W.2d 800. material has no 4th−amendment protection if the 3rd party reveals or conveys the
The drawing and testing of blood solely for diagnostic and not government− material to governmental authorities, whether or not the person who turned over
instigated purposes was not a “search or seizure” even when the testing physician the material had a subjective belief that the 3rd party would not betray him or her.
testified at a negligent homicide trial. State v. Jenkins, 80 Wis. 2d 426, 259 N.W.2d State v. Knight, 2000 WI 16, 232 Wis. 2d 305, 605 N.W.2d 291, 99−0368.
109. While the subtleties of police practice in some cases necessitate an expert wit-
A stop and frisk was not an unreasonable search and seizure. State v. William- ness, there is no per se requirement that there be expert testimony to prove an exces-
son, 113 Wis. 2d 389, 335 N.W.2d 814 (1983). sive use of force claim. Robinson v. City of West Allis, 2000 WI 126, 239 Wis. 2d
595, 619 N.W.2d 692, 98−1211.
A person who is lawfully in custody for a civil offense may be required to partici- What a person knowingly exposes to the public is not subject to 4th−amendment
pate in a lineup for an unrelated criminal offense. State v. Wilks, 121 Wis. 2d 93, protection. An inner tube rental and campground business did not have a reason-
358 N.W.2d 273 (1984). able expectation of privacy in areas open to the public. Float−Rite Park, Inc. v. Vil-
There is no reasonable expectation of privacy in garbage once it has been rou- lage of Somerset, 2001 WI App 113, 244 Wis. 2d 34, 629 N.W.2d 818, 00−1610.
tinely collected by garbage collectors. State v. Stevens, 123 Wis. 2d 303, 367 The use of an infrared sensing device to detect heat emanating from a residence
N.W.2d 788 (1985). constitutes a search requiring a warrant. State v. Lorager, 2002 WI App 5, 250 Wis.
An unlawful arrest does not deprive a court of personal jurisdiction over a defen- 2d 198, 640 N.W.2d 555, 00−3364. See also Kyllo v. U.S. 533 U.S. 27, 150 L. Ed.
dant. State v. Smith, 131 Wis. 2d 220, 388 N.W.2d 601 (1986). 2d 94 (2001).
Under the inevitable discovery doctrine, evidence seized under a defective An individual does not have a reasonable expectation of privacy in a public rest-
search warrant was admissible because a later inventory search would have discov- room stall when he or she occupies it with another individual, leaves the door
ered it. State v. Kennedy, 134 Wis. 2d 308, 396 N.W.2d 765 (Ct. App. 1986). 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, Under the “independent source” doctrine, evidence discovered during a valid
02−1008. search was admissible regardless of whether initial entry was illegal. Segura v. U.S.
The first sentence of this section is a statement of purpose that describes the poli- 468 U.S. 796 (1984).
cies to be promoted by the state and does not create an enforceable, self−executing The “good faith” exception to the exclusionary rule allowed the admission of
right. Schilling v. Wisconsin Crime Victims Rights Board, 2005 WI 17, 278 Wis. evidence obtained by officers acting in objectively reasonable reliance on a search
2d 216, 692 N.W.2d 623, 03−1855. warrant, issued by a detached and neutral magistrate, later found to be unsupported
Although defendant’s initial trip to the police station was consensual, when the by probable cause. U.S. v. Leon, 468 U.S. 897 (1984).
defendant was left in a locked room for 5 hours, he was seized within the meaning The “good faith” exception to the exclusionary rule is discussed. Massachusetts
of the 4th amendment. Under these circumstances, a reasonable person would not v. Sheppard, 468 U.S. 981 (1984).
have believed that he was free to leave. Defendant’s post−Miranda confession, If a “wanted flyer” has been issued on the basis of articulable facts supporting
offered within 5 minutes of the officers’ first questions to the defendant after 5 reasonable suspicion that a wanted person has committed a crime, other officers
hours of isolation, was insufficiently attenuated from the illegal seizure and should may rely on the flyer to stop and question that person. United States v. Hensley,
have been suppressed. State v. Farias−Mendoza, 2006 WI App 134, 294 Wis. 2d 469 U.S. 221 (1985).
726, 720 N.W.2d 489, 05−0365.
For a search to be a private action not covered by the 4th amendment: 1) the In assessing whether detention is too long to be justified as an investigative stop,
police may not initiate, encourage, or participate in a private entity’s search; 2) the it is appropriate to examine whether the police diligently pursued a means of inves-
private entity must engage in the activity to further its own ends or purpose; and tigation likely to quickly confirm or dispel their suspicions. United States v.
3) the private entity must not conduct the search for the purpose of assisting govern- Sharpe, 470 U.S. 675 (1985).
mental efforts. A search may be deemed a government search when it is a “joint Proposed surgery under general anesthetic to recover a bullet from an accused
endeavor” between private and government actors. Once the state raises the issue, robber’s body was an unreasonable search. Winston v. Lee, 470 U.S. 753 (1985).
asserting that a search is a private search, the defendant has the burden of proving Fingerprints were not admissible when the police transported the suspect to a sta-
by a preponderance of the evidence that government involvement in a search or sei- tion house for fingerprinting without consent, probable cause, or prior judicial
zure brought it within the protections of the 4th amendment. State v. Payano−Ro- authorization. Hayes v. Florida, 470 U.S. 811 (1985).
man, 2006 WI 47, 290 Wis. 2d 380, 714 N.W.2d 548, 04−1029 Apprehension by the use of deadly force is a seizure subject to the reasonable-
When officers were met with disorderly conduct during the execution of a search ness requirement. Tennessee v. Garner, 471 U.S. 1 (1985).
warrant, they possessed the lawful authority to arrest notwithstanding the invalidity When an officer stopped a car for traffic violations and reached into the car to
of the warrant. State v. Annina, 2006 WI App 202, 296 Wis. 2d 599, 723 N.W. 2d move papers obscuring the vehicle ID number, discovered evidence was admissi-
708, 05−0876. ble. New York v. Class, 475 U.S. 106 (1986).
A premises warrant generally authorizes the search of all items on the premises The reasonable expectation of privacy was not violated when police, acting on
so long as those items are plausible receptacles of the objects of the search. A law- an anonymous tip, flew over the defendant’s enclosed backyard and observed mari-
ful search of fixed premises generally extends to the entire area in which the object juana plants. California v. Ciraolo, 476 U.S. 207 (1986).
of the search may be found and is not limited by the possibility that separate acts
of entry or opening may be required to complete the search. State v. LaCount, 2008 Defendants have no reasonable privacy interest in trash left on a curb for
WI 59, 310 Wis. 2d 85, 750 N.W.2d 780, 06−0672. pick−up. Therefore, a warrantless search is not prohibited under federal law. Cali-
What a person knowingly exposes to the public, even in his or her own home or fornia v. Greenwood, 486 U.S. 35 (1988).
office, is not a subject of 4th amendment protection. When affidavits were left The use of a roadblock to halt a suspect’s automobile constituted a seizure.
unattended in a public hallway frequented by hundreds, there was no illegal search Brower v. County of Inyo, 489 U.S. 593, 103 L. Ed. 2d 628 (1989).
when a court commissioner picked up and looked at or photocopied the affidavits. The impeachment exception to the exclusionary rule does not extend to the use
State v. Russ, 2009 WI App 68, 317 Wis. 2d 764, 767 N.W.2d 629, 08−1641. of illegally obtained evidence to impeach testimony of defense witnesses other than
The good faith exception precludes application of the exclusionary rule where the defendant. James v. Illinois, 493 U.S. 307, 107 L. Ed. 2d 676 (1990).
officers conduct a search in objectively reasonable reliance upon clear and settled For a seizure of a person to occur there must either be an application of force,
Wisconsin precedent that is later deemed unconstitutional by the United States however slight, or when force is absent, submission to an officer’s “show of author-
Supreme Court. State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252; 786 N.W.2d 97, ity.” California v. Hodari D. 499 U.S. 279, 113 L. Ed. 690 (1991).
07−1894. When an officer has no articulable suspicion regarding a person, but requests that
It is a violation of the defendant’s right to due process for a prosecutor to com- person to allow the search of his luggage, there is no seizure of the person if a rea-
ment on a defendant’s failure to consent to a warrantless search. It has long been sonable person would feel free to decline the officer’s request or end the encounter.
a tenet of federal jurisprudence that a defendant’s invocation of a constitutional Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d 389 (1991).
right cannot be used to imply guilt. State v. Banks, 2010 WI App 107, ___ Wis. 2d
___, 790 N.W.2d 526, 09−1436. Fourth−amendment protections against unreasonable searches and seizures
extend to civil matters. The illegal eviction of a trailer home from a private park
Arson investigations under s. 165.55 (9) and (10) are subject to search warrant with deputy sheriffs present to prevent interference was an unconstitutional seizure
requirements set forth in Michigan v. Tyler, 436 U.S. 499 (1978). Consent to search of property. Soldal v. Cook County, 506 U.S. 56, 121 L. Ed. 2d 450 (1992).
discussed. 68 Atty. Gen. 225.
Whether police must “knock and announce” prior to entering a residence in exe-
In−custody statements stemming from an illegal arrest are not admissible merely cuting a warrant is part of the reasonableness inquiry under the 4th amendment.
because Miranda warnings were given. Brown v. Illinois, 422 U.S. 590. Wilson v. Arkansas, 514 U.S. 927, 131 L. Ed. 2d 976 (1995).
Bank records are not private papers protected by a legitimate “expectation of pri- Public school students are granted lesser privacy protections than adults, and stu-
vacy.” United States v. Miller, 425 U.S. 435. dent athletes even less. Mandatory drug testing of student athletes did not violate
Standard procedure inventorying of any container impounded by police is a rea- the constitutional protection against unreasonable searches and seizures. School
sonable search. South Dakota v. Opperman, 428 U.S. 364. Dist. 475 v. Acton, 515 U.S. 646, 132 L. Ed. 2d 564 (1995).
Standards for application of exclusionary rule to live−witness testimony are dis- It is a violation of the 4th amendment for police to bring members of the media
cussed. United States v. Ceccolini, 435 U.S. 268 (1978). or other 3rd persons into a home during the execution of a warrant when the pres-
A newspaper office may be searched for evidence of a crime even though the ence of the 3rd persons in the home is not in aid of the execution of the warrant.
newspaper is not suspected of a crime. Zurcher v. Stanford Daily, 436 U.S. 547 Wilson v. Layne, 526 U.S. 603, 143 L. Ed. 2d 818 (1999).
(1978). Inherent in Summers’ authorization to detain an occupant of the place to be
Stopping a car for no other reason than to check the license and registration was searched is the authority to use reasonable force to effectuate the detention. Use
unreasonable under the 4th amendment. Delaware v. Prouse, 440 U.S. 648 (1979). of force in the form of handcuffs to effectuate detention in the garage outside the
house being searched was reasonable when the governmental interests outweighed
In−court identification of the accused was not suppressed as the fruit of an
the marginal intrusion. Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S.
unlawful arrest. United States v. Crews, 445 U.S. 463 (1980).
Ct. 1465 (2004).
A person has been seized within the meaning of the 4th amendment only if, in
Violation of the “knock−and−announce” rule does not require the suppression
view of all of the circumstances surrounding the incident, a reasonable person
of all evidence found in the search. Hudson v. Michigan, 547 U.S. 586, 165 L. Ed.
would have believed that he or she was not free to leave. United States v. Menden-
hall, 446 U.S. 544 (1980). 2d 56, 126 S. Ct. 2159 (2006).
A claim of excessive force in the course of making a seizure of the person is prop-
Illegally seized evidence was properly admitted to impeach the defendant’s false
trial testimony, given in response to proper cross−examination, when the evidence erly analyzed under the 4th amendment’s objective reasonableness standard. A
did not squarely contradict the defendant’s testimony on direct examination. police officer’s attempt to terminate a dangerous high−speed car chase that threat-
United States v. Havens, 446 U.S. 620 (1980). ens the lives of innocent bystanders does not violate the 4th amendment, even when
it places the fleeing motorist at risk of serious injury or death. Scott v. Harris, 550
Arcane concepts of property law do not control the ability to claim 4th amend- U.S. 372, 167 L. Ed. 2d 686, 127 S. Ct. 1769 (2007).
ment protections. Rawlings v. Kentucky, 448 U.S. 98 (1980). To trigger the exclusionary rule, police conduct must be sufficiently deliberate
Resemblance to a “drug courier profile” was an insufficient basis for seizure. that exclusion can meaningfully deter the conduct, and sufficiently culpable that
Reid v. Georgia, 448 U.S. 438 (1980). such deterrence is worth the price paid by the justice system. The exclusionary rule
Objective facts and circumstantial evidence justified an investigative stop of a serves to deter deliberate, reckless, or grossly negligent conduct, or in some cir-
smuggler’s vehicle. United States v. Cortez, 449 U.S. 411 (1981). cumstances recurring or systemic negligence. When police mistakes are the result
A warrant to search premises for contraband implicitly carries with it limited of negligence, such as here when a cancelled warrant was not removed from a data-
authority to detain occupants during a search. Michigan v. Summers, 452 U.S. 692 base, rather than systemic error or reckless disregard of constitutional require-
(1981). ments, any marginal deterrence does not pay its way. Herring v. United States, 555
The automobile exception does not extend to a closed, opaque container located U.S. ___, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009).
in the luggage compartment. Robbins v. California, 453 U.S. 420 (1981). The “reasonableness” of the investigative detention: An “ad hoc” constitutional
Police placement of a beeper in a container of precursor chemical used to test. Wiseman. 67 MLR 641 (1984).
manufacture an illicit drug and the subsequent surveillance of the defendant’s car The exclusionary rule and the 1983−1984 term. Gammon. 68 MLR 1 (1984).
by monitoring beeper transmissions was not prohibited by the 4th amendment. The constitutionality of the canine sniff search: From Katz to dogs. Fitzgerald.
U.S. v. Knotts, 460 U.S. 276 (1983). 68 MLR 57 (1984).
The detention and interrogation of an airline passenger fitting a “drug courier Analyzing the reasonableness of bodily intrusions. Sarnacki. 68 MLR 130
profile” was unconstitutional. Florida v. Royer, 460 U.S. 491 (1983). (1984).

The good faith exception to the exclusionary rule: The latest example of “new A person with no property interest who may have entered the premises legiti-
federalism” in the states. 71 MLR 166 (1987). mately but did not have permission to remain to the time of a search is without
Search and seizure—abandonment. 1974 WLR 212. standing to challenge the search. State v. McCray, 220 Wis. 2d 705, 583 N.W.2d
Terry revisited: Critical update on recent stop−and−frisk developments. 1977 668 (Ct. App. 1998), 97−2746.
WLR 877. To have standing to challenge the pre−delivery seizure of a package not
addressed to the defendant, the defendant has the burden of establishing some rea-
The future of the exclusionary rule and the development of state constitutional
sonable expectation of privacy in the package, which will be determined on a case−
law. 1987 WLR 377.
by−case basis. State v. Ramirez, 228 Wis. 2d 561, 598 N.W.2d 247 (Ct. App. 1999),
Search and Seizure of Computer Data. McChrystal, Gleisner, Kuborn. Wis.
98−0996.
Law. Dec. 1998.
Non−objected to warrantless entry by police into living quarters is entry
The good−faith exception to the exclusionary rule. Wiseman. WBB Aug. 1986. demanded under color of office granted in submission to authority rather than as
CONSENT AND STANDING an understanding and intentional waiver of a constitutional right. If consent is
The fact that consent to the search of a car was given while the defendant was granted only in acquiescence to an unlawful assertion of authority, the consent is
in custody does not establish involuntariness. It was not improper for the police invalid. An initial refusal to permit a search when asked militates against a finding
to tell the defendant that if a search did not produce stolen goods he would be of voluntariness. State v. Munroe, 2001 WI App 104, 244 Wis. 2d 1, 630 N.W.2d
released. Gautreaux v. State, 52 Wis. 2d 489, 190 N.W.2d 542. 223, 00−0260.
When officers gained entry into a motel room for the stated, but false, reason of
When police opened a package in the possession of an express company without determining whether the occupant had violated an ordinance requiring the presen-
a warrant or the consent of the addressee, persons later arrested in possession of the tation of proper identification when renting a room, any license granted by acquies-
package, other than the addressee, had no standing to challenge the evidence on the cence to their entry vanished when proper identification was presented, and the
ground of illegal search. Defendants would have to establish a possessory interest officers had no authority to conduct a general search. State v. Munroe, 2001 WI
in the package at the time of the search. State v. Christel, 61 Wis. 2d 143, 211 App 104, 244 Wis. 2d 1, 630 N.W.2d 223, 00−0260.
N.W.2d 801. In light of the reduced expectation of privacy that applies to property in an auto-
The defendant was qualified to challenge the admissibility of evidence taken mobile, the search of a vehicle passenger’s jacket based upon the driver’s consent
from his wife, when he and his wife were in each other’s presence when arrested to the search of the vehicle was reasonable. State v. Matejka, 2001 WI 5, 241 Wis.
for the same crime, a search of her person at that time would have been at a place 2d 52, 621 N.W.2d 891, 99−0070.
where the defendant had a legitimate right to be; the object of the search, incident A social guest who is not an overnight guest may have a reasonable expectation
to the arrest for robbery could only be for weapons and incriminating evidence of privacy in premises giving standing to challenge a warrantless search if the
against him and his wife; and this situation carried over into a custodial search of guest’s relationship to the property and host is firmly rooted. State v. Trecroci, 2001
the wife which was thereafter conducted at the police station where the search WI App 126, 246 Wis. 2d 261, 630 N.W.2d 555, 00−1079.
occurred. State v. Mabra, 61 Wis. 2d 613, 213 N.W.2d 545. Warrants for administrative or regulatory searches modify the conventional
Sons of a murdered property owner did not, as such, have authority to consent understanding of probable cause requirements for warrants as the essence of the
to a search of the premises. Kelly v. State, 75 Wis. 2d 303, 249 N.W.2d 800. search search is that there is no probable cause to believe a search will yield evi-
A person living in a tent in the yard of a house had no authority to grant consent dence of a violation. Refusal of consent is not a constitutional requirement for issu-
to a warrantless search of the house. A police officer’s observation through a win- ing the warrant, although it may be a statutory violation. Suppression only applies
dow of a cigarette being passed in the house did not constitute probable cause for to constitutional violations. State v. Jackowski, 2001 WI App 187, 247 Wis. 2d
a warrantless search of the house for marijuana. The “plain view” doctrine dis- 430, 633 N.W.2d 649, 00−2851.
cussed. State v. McGovern, 77 Wis. 2d 203, 252 N.W.2d 365. A visual body cavity search is more intrusive than a strip search. It is not objec-
An estranged wife had no authority to consent to the warrantless search of prop- tively reasonable for police to conclude that consent to a strip search includes con-
erty she owned jointly with her defendant husband but did not occupy at that time. sent to scrutiny of body cavities. State v. Wallace, 2002 WI App 61, 251 Wis. 2d
State v. Verhagen, 86 Wis. 2d 262, 272 N.W.2d 105 (Ct. App. 1978). 625, 642 N.W.2d 549, 00−3524.
The boyfriend of an apartment lessee who paid no rent or expenses and whose A search authorized by consent is wholly valid unless that consent is given while
access to the apartment was at the whim of the lessee did not have even a limited an individual is illegally seized. The general rule is that a seizure has occurred when
reasonable expectation of privacy in the premises when away form the premises. an officer, by means of physical force or show of authority, has in some way
State v. Fillyaw, 104 Wis. 2d 700, 312 N.W.2d 795 (1981). restrained the liberty of a citizen. Questioning alone does not a seizure make. That
The impoundment and subsequent warrantless inventory search of car, including a defendant spontaneously and voluntarily responded to an officer’s questions is
a locked glove box, were not unconstitutional. Automatic standing is discussed. not enough to transform an otherwise consensual exchange into an illegal seizure.
State v. Callaway, 106 Wis. 2d 503, 317 N.W.2d 428 (1982). State v. Williams, 2002 WI 94, 255 Wis. 2d 1, 646 N.W.2d 834, 01−0463.
There is no bright−line rule that a tenant in an unlocked apartment building with
A defendant had no standing to contest the legality of search of a van because at least four units does not have a reasonable expectation of privacy in the common
of a lack of dominion and control over the van. State v. Wisurmerski, 106 Wis. 2d areas of the stairways, hallways, and basement. Whether there is a reasonable
722, 317 N.W.2d 484 (1982). expectation of privacy is decided on a case−by−case basis. State v. Eskridge, 2002
When the defendant’s mother admitted police into her home to talk to her son, WI App 158, 256 Wis. 2d 314, 647 N.W.2d 434, 01−2720.
the subsequent arrest of the son was valid. State v. Rodgers, 119 Wis. 2d 102, 349 A teenage child may have apparent common authority to consent to police entry
N.W.2d 453 (1984). into the family home justifying a warrantless entry. State v. Tomlinson, 2002 WI
When police reentered a home to recreate a crime 45 hours after consent to enter 91, 254 Wis. 2d 502, 648 N.W.2d 367, 00−3134.
was given, evidence seized was properly suppressed. State v. Douglas, 123 Wis. Consent to a vehicle search, given following the conclusion of a traffic stop,
2d 13, 365 N.W.2d 580 (1985). when the police had given verbal permission for the defendant to leave but contin-
A person who borrows a car with the owner’s permission has a reasonable expec- ued to ask questions, was valid. Applying a “reasonable person” test, there was no
tation of privacy in the vehicle. State v. Dixon, 177 Wis. 2d 461, 501 N.W.2d 442 “seizure” at the time and consent to the search was not an invalid result of an illegal
(1993). seizure. State v. Williams, 2002 WI 94, 253 Wis. 2d 99, 644 N.W.2d 919, 00−3065.
In a consent search, voluntariness and freedom from coercion, not fully informed Detaining, in handcuffs, a person who had arrived at a motel room with the per-
consent, must be shown. Language and cultural background are relevant in deter- son who had rented the room pending the arrival of and during the execution of a
mining whether the police took advantage in gaining consent. State v. Xiong, 178 search warrant for the hotel room was reasonable. Consent to a search of the per-
Wis. 2d 525, 504 N.W.2d 428 (Ct. App. 1993). son’s living quarters on completion of the search, which resulted in the seizure of
A warrantless entry by uniformed officers to make arrests after undercover illegal drugs, when the person had been repeatedly told she was being detained but
agents gained permissive entrance to the premises was justified under the consent was not under arrest was voluntarily given and not the product of an illegal seizure.
exception and no exigent circumstances were required. State v. Johnston, 184 Wis. State v. Vorburger, 2002 WI 105, 255 Wis. 2d 537, 648 N.W.2d 829, 00−0971.
2d 794, 518 N.W.2d 759 (1994). Questioning the defendant’s 3−year−old son outside the defendant’s presence
Evidence obtained in a consensual search of the defendant’s car when the con- did exceed the scope of the defendant’s consent to search his home when the child
sent was given during an illegal search was admissible as the evidence was not was left with a police officer without any restrictions and there was no evidence of
“come at” by information learned in the interrogation. State v. Goetsch, 186 Wis. trickery, deceit, or coercion. The questioning constituted on−the−scene question-
2d 1, 519 N.W.2d 634 (Ct. App. 1994). ing of a potential witness in an ongoing investigation. There was no applicable pro-
hibition against speaking with the boy about whether a gun was in the house. State
All occupants of a vehicle in a police−initiated stop are seized and have standing v. Ragsdale, 2004 WI App 178, 276 Wis. 2d 52, 687 N.W.2d 785, 03−2795.
to challenge the lawfulness of the seizure. To establish lawfulness, the state must For a search with no probable cause made after a traffic stop to be consensual,
establish that the police possessed reasonable, articulable suspicion to seize some- the consent must be given under circumstances where a reasonable person granting
one in the vehicle. State v. Harris, 206 Wis. 2d 243, 557 N.W.2d 247 (1996), the consent would have believed that he or she was free to leave. Some verbal or
95−1595. physical demonstration by the officer, or some other equivalent facts, clearly con-
Whether persons have “common authority” to consent to a search of a premises veying to the person that the traffic matter is concluded and the person should be
depends, not on property rights, but on the relationship between the consenting on his or her way is necessary. Absent that, it is a legal fiction to conclude that a
party and the premises. Co−residents have “common authority” to consent to a reasonable person would believe that he or she is free to depart the scene. State v.
search, but relatives of residents and property owners do not. Consent of one who Jones, 2005 WI App 26, 278 Wis. 2d 774, 693 N.W.2d 104, 03−3216.
possesses common authority is binding against an absent resident, but is not against In a traffic stop context, where the test of consent to search is whether a reason-
a nonconsenting party who is present. State v. Kieffer, 207 Wis. 2d 462, 558 able person would feel free to disregard the police and go about his or her business,
N.W.2d 664 (Ct. App. 1996), 96−0008; Affirmed 217 Wis. 2d 531, 577 N.W.2d 352 the fact that the person’s driver’s license or other official documents are retained
(1998), 96−0008. See also, State v. St. Germaine, 2007 WI App 214, 305 Wis. 2d by the officer is a key factor in assessing whether the person is seized and, therefore,
511, 740 N.W.2d 148, 06−2555. whether consent is voluntary. State v. Luebeck, 2006 WI App 87, 292 Wis. 2d 748,
Consent to a search must be knowledgeably and voluntarily given. When con- 715 N.W.2d 639, 05−1013.
sent is not requested, it cannot be knowledgeably and voluntarily given. State v. Orderly submission to law enforcement officers who, in effect, incorrectly repre-
Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997), 96−2052. sent that they have the authority to search and seize property, is not knowing, intelli-
Suddenly placing a police officer at each side of a vehicle just prior to asking for gent, and voluntary consent under the 4th amendment. When officers offered the
consent to search cannot be said to create or to be intended to create a coercive situa- defendant a fleeting glimpse of a subpoena signed by a judge, they suggested
tion. State v. Stankus, 220 Wis. 2d 232, 582 N.W.2d 486 (Ct. App. 1998), 97−2131. authority they did not possess that led the defendant to believe he could not refuse

consent for the officers to search his room and seize his computer. State v. Giebel, Zurcher: third party searches and freedom of the press. Cantrell. 62 MLR 35
2006 WI App 239, 297 Wis. 2d 446, 724 N.W.2d 402, 06−0189. (1978).
The holding of Jones, 2005 WI App 26, is inapplicable to consent to the search But What of Wisconsin’s Exclusionary Rule? The Wisconsin Supreme Court
of a vehicle made after the defendant had been lawfully seized. State v. Hartwig, Accepts Apparent Authority to Consent as Grounds for Warrantless Searches.
2007 WI App 160, 302 Wis. 2d 678, 735 N.W.2d 597, 06−2804. Schmidt. 83 MLR 299.
The holding of Angelia D.B. that searches on school grounds must be supported State v. Stevens: Consent by deception in the context of garbage searches. 1987
by reasonable suspicion extends to searches in school parking lots. A school search WLR 191.
is legal when it satisfies a 2−prong test: 1) the search must be justified at its incep-
tion, and 2) reasonably related in scope to the circumstances which justified the PROBABLE CAUSE AND WARRANTS
interference in the first place. A school official has the responsibility to keep stu- Probable cause meeting constitutional requirements for issuance of the search
dents safe on school grounds. The search here was justified at its inception because warrant of defendant’s premises was not established by testimony of a police offi-
school officials were put on alert that the defendant was in possession of drugs that cer that a youth found in possession of amphetamines informed the officer that a
day and school officials must act on such a tip. When searches of the defendant’s shipment of marijuana was being delivered to the defendant’s premises, when it
person, backpack, and locker were cleared, the search was reasonable in scope was established that the officer had had no previous dealings with the informant and
when the next step for school officials was to search the defendant’s car. State v. could not personally attest to the informant’s reliability. The warrant was invalid.
Schloegel, 2009 WI App 85, 319 Wis. 2d 741, 769 N.W.2d 130, 08−1310. State ex rel. Furlong v. Waukesha County Court, 47 Wis. 2d 515, 177 N.W.2d 333.
The defendant in this case did not have a legitimate expectation of privacy in a Probable cause for arrest without a warrant under the 4th amendment of the U.S.
package intercepted by a delivery service and later searched. While the expectation constitution is applicable in this state. Tests for probable cause are discussed. A
of privacy when using an alias to send or receive mail is something society may citizen informer is not subject to the requirement that the officer show prior reliabil-
accept as reasonable, the coupling of a false name and a false address, along with ity of his informant. State v. Paszek, 50 Wis. 2d 619, 184 N.W.2d 836.
an unknown sender and a statement by the defendant that the package belonged to Probable cause must exist prior to a search of body orifices. State v. Guy, 55 Wis.
someone else did not demonstrate that the defendant had a reasonable expectation 2d 83, 197 N.W.2d 774.
of privacy in the package. State v. Earl, 2009 WI App 99, 320 Wis. 2d 639, 770 An affidavit reciting that a reliable informant had reported seeing a large quantity
N.W.2d 755, 08−1580. of heroin in defendant’s apartment was sufficient to support a search warrant. State
In considering the totality of the circumstances surrounding whether consent v. Mansfield, 55 Wis. 2d 274, 198 N.W.2d 634.
was given voluntarily the court considered: 1) whether the police used deception,
trickery, or misrepresentation; 2) whether the police threatened or physically intim- Unauthorized out−of−court disclosures of private marital communications may
idated the defendant or punished him or her by the deprivation of something like not be used in a proceeding to obtain a search warrant. Muetze v. State, 73 Wis.
food or sleep; 3) whether the conditions attending the request to search were conge- 2d 117, 243 N.W.2d 393.
nial, non−threatening, and cooperative, or the opposite; (4) how the defendant A search warrant designating an entire farmhouse occupied by the accused and
responded to the request to search; (5) what characteristics the defendant had as to “other persons unknown” was not invalid despite the multiple occupancy. State v.
age, intelligence, education, physical and emotional condition, and prior experi- Suits, 73 Wis. 2d 352, 243 N.W.2d 206.
ence with the police; and (6) whether the police informed the defendant that he or A warrant authorizing the search of the “entire first−floor premises” encom-
she could refuse consent. State v. Artic, 2010 WI 83, 326 Wis. 2d 234, 784 N.W.2d passed a balcony room that was part and parcel of first floor. Rainey v. State, 74
740, 08−0880. Wis. 2d 189, 246 N.W.2d 529.
Threatening to obtain a search warrant does not vitiate consent if “the expressed A search warrant obtained on an affidavit containing misrepresentations by a
intention to obtain a warrant is genuine and not merely a pretext to induce submis- police officer as to the reliability of an unnamed informant is invalid. When the
sion. State v. Artic, 2010 WI 83, 326 Wis. 2d 234, 784 N.W.2d 740, 08−0880. search was conducted within a reasonable time following an arrest based on prob-
Voluntary consent is less likely when the defendant answers the door to find offi- able cause, the search will be sustained even though it was conducted in execution
cers with guns drawn. However, the fact that an officer has a weapon drawn at the of invalid warrant. Schmidt v. State, 77 Wis. 2d 370, 253 N.W.2d 204.
beginning of an encounter does not prevent the situation from evolving into some- Affidavits for search warrants need not be drafted with technical specificity nor
thing non−threatening and relatively congenial. State v. Artic, 2010 WI 83, 326 demonstrate the quantum of probable cause required in a preliminary examination.
Wis. 2d 234, 784 N.W.2d 740, 08−0880. The usual inferences that reasonable persons draw from evidence are permissible,
A defendant’s consent to a search obtained following illegal police activity may and doubtful or marginal cases should be resolved by the preference to be accorded
be admissible. The court must consider the temporal proximity of the misconduct to warrants. State v. Starke, 81 Wis. 2d 399, 260 N.W.2d 739.
to the statements by the defendant, the presence of intervening circumstances, and Probable cause for arrest on a charge of homicide by intoxicated use of a motor
the purpose and flagrancy of the misconduct. Circumstances may mitigate a short vehicle justified taking a blood sample without a search warrant or arrest. State v.
time span including congenial conditions. Meaningful intervening circumstances Bentley, 92 Wis. 2d 860, 286 N.W.2d 153 (Ct. App. 1979).
concerns whether the defendant acted of free will unaffected by the initial illegality. A defect in a portion of a search warrant did not invalidate the entire search war-
Purposefulness and flagrancy of the police conduct is particularly important rant. State v. Noll, 116 Wis. 2d 443, 343 N.W.2d 391 (1984).
because it goes to the heart of the exclusionary rule’s objective of deterring unlaw- A “no knock” warrant to search a drug dealer’s house was invalid because of a
ful police conduct. State v. Artic, 2010 WI 83, 326 Wis. 2d 234, 784 N.W.2d 740, lack of specific information to indicate the evidence would be destroyed otherwise.
08−0880. State v. Cleveland, 118 Wis. 2d 615, 348 N.W.2d 512 (1984).
Passengers had no “legitimate expectation of privacy” in the glove box or under At a “Franks hearing” challenging the veracity of a statement supporting a
the seat of a car. Rakas v. Illinois, 439 U.S. 128 (1978). search warrant, the defendant must prove that a falsehood was intentional or with
A court may not suppress otherwise admissible evidence on the ground that it reckless disregard for truth and that the false statement was necessary to finding
was seized unlawfully from a 3rd party not before court. United States v. Payner, probable cause. State v. Anderson, 138 Wis. 2d 451, 406 N.W.2d 398 (1987).
447 U.S. 727 (1980). Under the “independent source doctrine” the court examines whether an agent
Defendants charged with crimes of possession may only claim benefits of the would have sought a warrant had it not been for an illegal entry, and if information
exclusionary rule if their own 4th−amendment rights have in fact been violated. obtained during the entry affected the decision to issue the warrant. State v. Lange,
United States v. Salvucci, 448 U.S. 83 (1980). 158 Wis. 2d 609, 463 N.W.2d 390 (Ct. App. 1990).
When police entered a 3rd party’s house to execute an arrest warrant, evidence A status check of a driver’s license arising out of police exercise of the commu-
discovered during the search was inadmissible. Steagald v. United States, 451 U.S. nity care−taker function is not a stop and does not require reasonable suspicion of
204 (1981). a crime. State v. Ellenbecker, 159 Wis. 2d 91, 464 N.W.2d 427 (Ct. App. 1990).
A prisoner has no constitutionally protected reasonable expectation of privacy Seizure of a package delivered to a 3rd party for limited investigative detention
in his or her cell. Hudson v. Palmer, 468 U.S. 517 (1984). requires reasonable suspicion, not probable cause. State v. Gordon, 159 Wis. 2d
The state need not prove that the defendant consenting to search knew of the right 335, 464 N.W.2d 91 (Ct. App. 1990).
to withhold consent. Florida v. Rodriguez, 469 U.S. 1 (1984). An evidentiary search of a person not named in a search warrant but present dur-
A warrantless entry to premises is permitted under the 4th amendment when ing the search of a residence reasonably suspected of being a drug house was rea-
entry is based upon 3rd−party consent and officers reasonably believed the3rd sonable. State v. Jeter, 160 Wis. 2d 333, 466 N.W.2d 211 (Ct. App. 1991).
party possessed authority to consent. Illinois v. Rodriguez, 497 U.S. 177, 111 L. A probable cause determination in the face of a staleness challenge depends
Ed. 2d 148 (1990). upon the nature of the underlying circumstances, whether the activity is of a pro-
An officer’s opening of a closed bag found on the floor of a suspect’s car during tracted or continuous nature, the nature of the criminal activity under investigation,
a search of the car, made with suspect’s consent was not unreasonable. Florida v. and the nature of what is being sought. State v. Ehnert, 160 Wis. 2d 464, 466
Jimeno, 500 U.S. 248, 114 L. Ed. 2d 297 (1991). N.W.2d 237 (Ct. App. 1991).
A defendant can urge suppression of evidence obtained in violation of constitu- A warrant for the seizure of film authorized the seizure, removal, and develop-
tional protections only if that defendant’s rights were violated. U.S. v. Padilla, 508 ment of the undeveloped film. State v. Petrone, 161 Wis. 2d 530, 468 N.W.2d 676
U.S. 954, 123 L. Ed. 2d 635 (1993). (1991).
The 4th amendment does not require that a seized person must be advised that Knowledge that a dealer operating an ongoing drug business was armed in his
he is free to go before his consent to a search can be recognized as voluntary. Ohio residence satisfied the requirements for a “no knock” search. A reasonable belief
v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347 (1996). that the weapon will be used need not be shown. State v. Watkinson, 161 Wis. 2d
A physically present inhabitant’s express refusal of consent to a police search is 750, 468 N.W.2d 763 (Ct. App. 1991), State v. Williams, 168 Wis. 2d 970, 485
dispositive as to him, regardless of the consent of a fellow occupant. If a potential N.W.2d 42 (1992).
defendant with self−interest in objecting is in fact at the door and objects, the co− A warrantless search of an apartment for evidence of occupancy when the police
tenant’s permission does not suffice for a reasonable search, whereas the potential reasonably believed that the tenant had vacated and the occupants were not legiti-
objector, nearby but not invited to take part in the threshold colloquy, loses out. mately on the premises was not unreasonable. The defendant had no reasonable
Georgia v. Randolph, 547 U.S. 103, 164 L. Ed. 2d 208, 126 S. Ct. 1515 (2006). expectation of privacy in the apartment or in property kept there. State v. Whitrock,
When a police officer makes a traffic stop, the driver of the car and its passengers 161 Wis. 2d 960, 468 N.W.2d 696 (1991).
are seized within the meaning of the 4th amendment and so may challenge the An informant need not have a “track record” established with the police if the
constitutionality of the stop. Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, totality of the circumstances indicate probable cause for a search exists. State v.
168 L. Ed. 2d 132 (2007). Hanson, 163 Wis. 2d 420, 471 N.W.2d 301 (Ct. App. 1991).
As a matter of federal law, an appellant cannot assert an alleged violation of his The severability rule under Noll applies when the description of the premises to
wife’s 4th−amendment rights as a basis for suppression, at his trial, of evidence be searched is overly broad. State v. Marten, 165 Wis. 2d 70, 477 N.W.2d 304 (Ct.
taken from his wife. Mabra v. Gray, 518 F.2d 512. App. 1991).

If old information contributes to an inference that probable cause exists at the The test for finding probable cause to issue a warrant is not whether the inference
time of the application for a warrant, its age is no taint. State v. Moley, 171 Wis. drawn from the supporting affidavit is the only reasonable inference. The test is
2d 207, 490 N.W.2d 764 (Ct. App. 1992). whether the inference drawn is a reasonable one. State v. Ward, 2000 WI 3, 231
Police serving a warrant are not required to ring a doorbell before forcing entry. Wis. 2d 723, 604 N.W.2d 517, 97−2008.
State v. Greene, 172 Wis. 2d 43, 491 N.W.2d 181 (Ct. App. 1992). Marijuana plants discovered while officers, although mistaken, believed they
Use of a ruse to gain entry in the execution of warrant when “no−knock” was not were executing a valid search warrant of an adjacent apartment were properly
authorized did not violate the announcement rule. Special authorization is not admitted into evidence. Because the officers were required to cease all searching
required for the use of a ruse. State v. Moss, 172 Wis. 2d 110, 492 N.W.2d 627 when they discovered that they were not operating within the scope of the warrant,
(1992). incriminating statements and evidence obtained thereafter were properly sup-
Failure to comply with the announcement rule was allowable when officers rea- pressed. A warrant obtained for the second apartment based on the discovery of
sonably believed further announcement was futile. State v. Berry, 174 Wis. 2d 28, the marijuana plants was based on untainted evidence, and additional evidence
496 N.W.2d 746 (Ct. App. 1993). obtained thereunder was admissible. State v. Herrmann, 2000 WI App 38, 233 Wis.
2d 135, 608 N.W.2d 406, 99−0325.
Compliance with the announcement rule must be determined at time of execu-
tion. While advance request for “no−knock” authority is preferable if police at the Police with an arrest warrant are authorized to enter a home if they have probable
time of execution have grounds, failure to seek authorization is not fatal. State v. cause to believe that the person named in the warrant lives there and is present, but
Kerr, 174 Wis. 2d 55, 496 N.W.2d 742 (Ct. App. 1993). not to enter a 3rd−party’s residence where the police believe the person to be a visi-
The incorrect identification of a building’s address in the warrant did not render tor. State v. Blanco, 2000 WI App 119, 237 Wis. 2d 395, 614 N.W.2d 512, 98−3153.
the resulting search unreasonable when the search made was of the building identi- In searching a computer for items listed in a warrant, the police are entitled to
fied by the informant, which was otherwise correctly identified in the warrant. examine all files to determine if their contents fall within the scope of the warrant.
State v. Nicholson, 174 Wis. 2d 542, 497 N.W.2d 791 (Ct. App. 1993). The first file containing evidence of other illegal activity is admissible under the
plain view doctrine and is grounds for a warrant to search for more evidence of the
A federal magistrate’s decision at a 4th amendment suppression hearing was not second illegal activity. State v. Schroeder, 2000 WI App 128, 237 Wis. 2d 575, 613
binding on a state trial court when the state was not a party nor in privity with a party N.W.2d 911, 99−1292.
to the federal action and the federal case did not review errors in the proceeding. Irrespective of whether the search warrant authorizes a “no−knock” entry, rea-
State v. Mechtel, 176 Wis. 2d 87, 499 N.W.2d 662 (1993).
sonableness is determined when the warrant is executed. State v. Davis, 2000 WI
An investigatory stop of an automobile based solely on the fact that the vehicle 270, 240 Wis. 2d 15, 622 N.W.2d 1, 99−2537.
bore “license applied for” plates, and the reasonable inferences that could be drawn A good faith exception to the exclusionary rule is adopted for when police offi-
therefrom, was justified by reasonable suspicion. State v. Griffin, 183 Wis. 2d 327, cers act in objectively reasonable reliance upon a warrant that had been issued by
515 N.W.2d 535 (Ct. App. 1994). a detached and neutral magistrate. For the exception to apply, the state must show
For a violation of the requirement that a warrant be issued by a neutral and that the process used in obtaining the search warrant included a significant inves-
detached magistrate, actual bias and not the appearance of bias must be shown. tigation and a review by either a police officer trained and knowledgeable in the
State v. McBride, 187 Wis. 2d 408, 523 N.W.2d 106 (Ct. App. 1994). requirements of probable cause and reasonable suspicion or a knowledgeable gov-
An “anticipatory warrant” issued before the necessary events have occurred that ernment attorney. State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625,
will allow a constitutional search, is subject to the same probable cause determina- 98−2595.
tion as a conventional search warrant. State v. Falbo, 190 Wis. 2d 328, 526 N.W.2d The constitutional validity of an unannounced entry in serving a warrant turns
814 (Ct. App. 1994). on whether the evidence introduced at the suppression hearing, including the facts
That a person was a passenger in a vehicle in which cocaine was found in the known to the police but not included in the warrant application, was sufficient to
trunk was not of itself sufficient to establish probable cause to arrest the person for establish a reasonable suspicion that knocking and announcing, under the circum-
being a part of a conspiracy to possess or sell the cocaine. State v. Riddle, 192 Wis. stances, would be dangerous or futile or would inhibit the effective investigation
2d 470, 531 N.W.2d 408 (Ct. App. 1995). of the crime. State v. Henderson, 2001 WI 97, 245 Wis. 2d 345, 629 N.W.2d 613,
A search warrant authorizing the search of certain premises and “all occupants” 99−2296.
was not unconstitutional where there was probable cause to believe that persons on Whether tenants have a reasonable expectation of privacy in stairways and halls
the premises were engaged in illegal activities. State v. Hayes, 196 Wis. 2d 753, 540 of rental property is to be determined by assessing each case on its individual facts
N.W.2d 1 (Ct. App. 1995), 94−3040. and depends on whether the person has exhibited an actual subjective expectation
A request to perform field sobriety tests does not convert an otherwise lawful of privacy in the area inspected and whether society is willing to recognize the
investigatory stop into an arrest requiring probable cause. County of Dane v. expectation as reasonable. State v. Trecroci, 2001 WI App 126, 246 Wis. 2d 261,
Campshure, 204 Wis. 2d 27, 552 N.W.2d 876 (Ct. App. 1996), 96−0474. 630 N.W.2d 555, 00−1079.
Probable cause is not required to justify a search conducted on school grounds There is a presumption that a warrantless search of a private residence is per se
by a police officer at the request of and in conjunction with with school authorities. unreasonable. A warrantless search requires probable cause, not reasonable suspi-
A lesser “reasonable grounds” standard applies. State v. Angelia D.B. 211 Wis. 2d cion. Although flight from an officer may constitute reasonable suspicion, it does
140, 564 N.W.2d 682 (1997), 95−3104. not rise to probable cause. For probable cause there must be a fair probability that
A suspect’s seeming reluctance to have the front of his boxer shorts patted at or contraband or evidence will be found in a particular place. State v. Rodriguez, 2001
below the waist did not give rise to probable cause to search inside the shorts when WI App 206, 247 Wis. 2d 734, 634 N.W.2d 844, 00−2546.
no specific suspicion of a crime was focused on the suspect and no weapon or con- Warrants for administrative or regulatory searches modify the conventional
traband had been plainly felt in a Terry pat down search. State v. Ford, 211 Wis. understanding of probable cause for warrants as the essence of the search is that
2d 741, 565 N.W.2d 286 (Ct. App. 1997), 96−2826. there is no probable cause to believe a search will yield evidence of a violation.
Refusal of consent is not a constitutional requirement for issuing the warrant,
It is not necessary that a warrant explicitly state that delivery of the sought after although it may be a statutory violation. Suppression only applies to constitutional
contraband must take place before the search is initiated when the requirement is violations. State v. Jackowski, 2001 WI App 187, 247 Wis. 2d 430, 633 N.W.2d
sufficiently implied. It is not necessary to describe in the affidavit in support of the 649, 00−2851.
warrant the exact role the police will play in delivering the contraband. State v.
Ruiz, 213 Wis. 2d 200, 570 N.W.2d 556 (Ct. App. 1997), 96−1610. The absence of an oath or affirmation supporting the issuance of a warrant is not
a mere technicality or matter of formality. Absence of an oath subjects evidence
A no−knock search cannot be founded on generalized knowledge. Fruits of an seized under the defective warrant to suppression. State v. Tye, 2001 WI 124, 248
invalid no−knock search must be suppressed. State v. Stevens, 213 Wis. 2d 324, Wis. 2d 530, 636 N.W.2d 473, 99−3331.
570 N.W.2d 593 (Ct. App. 1997), 97−0758. If a telephone warrant application has not been recorded and there is no evidence
The showing required to sustain an unannounced entry parallels the reasonable of intentional or reckless misconduct on the part of law enforcement officers, a
suspicion standard for justifying investigative stops. The police must have reason- reconstructed application may serve as an equivalent of the record of the original
able suspicions based on specific articulable facts that announcing their presence application and can protect the defendant’s right to a meaningful appeal and ability
will endanger safety or present an opportunity to destroy evidence. State v. Larson, to challenge the admission of evidence. Courts should consider the time between
215 Wis. 2d 155, 572 N.W.2d 127 (Ct. App. 1997), 95−1940. the application and the reconstruction, the length of the reconstructed segment in
There is no constitutional requirement that an anticipatory search warrant con- relation to the entire warrant request, if there were any contemporaneous written
tain explicit conditional language limiting the execution of the warrant until after documents used to reconstruct the record, the availability of witnesses used to
delivery of the contraband. State v. Meyer, 216 Wis. 2d 729, 576 N.W.2d 260
reconstruct the record, and the complexity of the segment reconstructed. The issu-
(1998), 96−2243.
To dispense with the rule of announcement in executing a warrant, particular ing judge’s participation may be appropriate. State v. Raflik, 2001 WI 129, 248
facts must be shown in each case that support an officer’s reasonable suspicion that Wis. 2d 593, 636 N.W.2d 690, 00−1086.
exigent circumstances exist. An officer’s experience and training are valid relevant Probable cause to arrest may be based on hearsay that is shown to be reliable and
considerations. State v. Meyer, 216 Wis. 2d 729, 576 N.W.2d 260 (1998), 96−2243. emanating from a credible source. Thus information from a confidential informant
Police are not prevented from ever using evidence gleaned from an illegal search may supply probable cause if the police know the informant to be reliable. State
in a subsequent and independent investigation. When the later investigation is not v. McAttee, 2001 WI App 262, 248 Wis. 2d 865, 637 N.W.2d 774, 00−2803.
prompted by the information obtained in the earlier search, the information may be The timeliness of seeking a warrant depends upon the nature of the underlying
used. State v. Simmons, 220 Wis. 2d 775, 585 N.W.2d 165 (Ct. App. 1998), circumstances and concepts. When the activity is of a protracted and continuous
97−1861. nature, the passage of time diminishes in significance. Factors like the nature of
The odor of a controlled substance provides probable cause to arrest when the the criminal activity under investigation and the nature of what is being sought have
odor is unmistakable and may be linked to a specific person under the circum- a bearing on where the line between stale and fresh information should be drawn
stances of the discovery of the odor. The odor of marijuana emanating from a in a particular case. State v. Multaler, 2001 WI App 149, 246 Wis. 2d 752, 632
vehicle established probable cause to arrest the sole occupant of the vehicle. State N.W.2d 89. Affirmed, 2002 WI 35, 00−1846.
v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999), 97−2476. An affidavit in support of a search warrant is not a research paper or legal brief
Police have authority under a valid search warrant to enter unoccupied premises that demands citations for every proposition. An investigator’s detailed listing of
if the search is otherwise reasonable under the circumstances. Knocking and his sources of information and accompanying credentials, combined with his indi-
announcing is not required. State v. Moslavac, 230 Wis. 2d 338, 602 N.W.2d 150 cation that his opinion was based upon his training and research provided a suffi-
(Ct. App. 1999), 98−3037. cient foundation for the opinion he gave in support of the warrant. State v. Multaler,
“Probable cause to believe” does not refer to a uniform degree of proof, but 2002 WI 35, 252 Wis. 2d 54, 643 N.W.2d 437, 00−1846.
instead varies in degree at different stages of the proceedings. County of Jefferson The use of an infrared sensing device to detect heat emanating from a residence
v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999), 97−3512. constitutes a search requiring a warrant. State v. Lorager, 2002 WI App 5, 250 Wis.

2d 198, 640 N.W.2d 555, 00−3364. See also Kyllo v. U.S. 533 U.S. 27, 150 L. Ed. ity required by the 4th amendment has not been satisfied. To justify a search of the
2d 94 (2001). whole building, there must be probable cause in the supporting affidavit to search
Under Ellenbecker, it was reasonable for an officer, who stopped a motorist each unit in the building, or there must be probable cause to search the entire build-
whose vehicle and general appearance matched that of a criminal suspect, to make ing. State v. Jackson, 2008 WI App 109, 313 Wis. 2d 162, 756 N.W.2d 623,
a report of the incident, even if the officer had already decided that the driver was 07−1362.
not the suspect, and for that purpose it was reasonable to ask for the motorist’s name A warrant contingent upon law enforcement officers identifying the precise unit
and identification. Once the motorist stated that he had no identification, there was of 3 townhouse units in which the defendant resided lacked the specificity that the
a reasonable ground for further detention. State v. Williams, 2002 WI App 306, 258 4th amendment was designed to protect against. State v. King, 2008 WI App 129,
Wis. 2d 395, 655 N.W.2d 462, 02−0384. 313 Wis. 2d 673, 758 N.W.2d 131, 07−1420.
An officer may perform an investigatory stop of a vehicle based on a reasonable An anticipatory search warrant is not appropriate when its execution is condi-
suspicion of a non−criminal traffic violation. State v. Colstad, 2003 WI App 25, tioned on verification of his address as opposed to being conditioned on certain evi-
260 Wis. 2d 406, 659 N.W.2d 394, 01−2988. dence of a crime being located at a specified place at some point in the future. State
When the reasonableness of a no−knock entry is challenged, the state must pres- v. King, 2008 WI App 129, 313 Wis. 2d 673, 758 N.W.2d 131, 07−1420.
ent evidence of the circumstances at the time of warrant execution that would jus- Mistakes on the face of a warrant were a technical irregularity under s. 968.22
tify a no−knock entry. If the circumstances were described in the warrant applica- and the warrant met the 4th amendment standard of reasonableness when although
tion, the evidence might be testimony by an officer that nothing had come to the the warrant identified the car to be searched incorrectly two times, the executing
officer’s attention to lead them to believe that circumstances had changed. If the officer attached and incorporated a correct affidavit that correctly identified the car
warrant application is silent or lacking in regard to circumstances that might render 3 times, describing the correct color, make, model, and style of the car along with
an announced entry dangerous or futile, the state may still justify a no−knock entry the correct license plate, and the information was based on the executing officer’s
by showing that the officers possessed the requisite reasonable suspicion at the time personal knowledge from prior encounters. State v. Rogers, 2008 WI App 176, 315
of entry. State v. Whiting, 2003 WI App 101, 264 Wis. 2d 722, 663 N.W.2d 299, Wis. 2d 60, 762 N.W.2d 795, 07−1850.
02−1721. A reviewing court must conclude that the totality of the circumstances demon-
Otherwise innocent conduct can supply the required link in the chain to establish strates that the warrant−issuing commissioner had a substantial basis for conclud-
probable cause that a crime has or is about to be committed. Although an individual ing that there was a fair probability that a search of the specified premises would
fact in a series may be innocent in itself, when considered as a whole, the facts may uncover evidence of wrongdoing. When a confidential informant told a law
warrant further investigation. State v. Schaefer, 2003 WI App 164, 266 Wis. 2d enforcement officer what someone else had told him, the veracity of each person
719, 668 N.W.2d 760, 01−2691. in the chain was relevant. State v. Romero, 2009 WI 32, 317 Wis. 2d 12, 765
The existence of probable cause in the context of information provided by an N.W.2d 756, 07−1139.
anonymous tipster is determined by a totality−of−the−circumstances analysis. As The Eason good faith exception to the exclusionary rule when a police officer
applied to assessing the reliability of an anonymous tip, a deficiency in one factor relies in good faith upon a search warrant’s validity was applicable when an offi-
may be compensated for by some other indicia of reliability when considered in the cer’s good faith belief that an open felony warrant existed was based on a computer
context of the totality−of−the−circumstances. A recognized indicia of the reliabil- search that revealed a commitment order the officer believed to be an arrest war-
ity of an anonymous tip is police corroboration of details, particularly details rant. State v. Robinson, 2009 WI App 97, 320 Wis. 2d 689, 770 N.W.2d 721,
involving predicted behavior. Probable cause may exist even if the predicted 08−0266.
behavior corroborated by the police is, when viewed in isolation, innocent behav- When an application for a warrant contains both tainted and untainted evidence,
ior. Police themselves need not observe suspicious behavior. State v. Sherry, 2004 the warrant is valid if the untainted evidence is sufficient to support a finding of
WI App 207, 277 Wis. 2d 194, 690 N.W.2d 435, 03−1531. probable cause to issue the warrant. There is a two−pronged approach to determine
That an officer arrested the defendant for a crime that does not exist, did not make if untainted evidence provides an independent source: 1) the court determines
the arrest illegal. The pertinent question is whether the arrest was supported by whether, absent the illegal entry, the officer would have sought the search warrant;
probable cause to believe the defendant committed a crime that does exist. State and 2) it asks if information illegally acquired influenced the magistrate’s decision
v. Repenshek, 2004 WI App 229, 277 Wis. 2d 780, 691 N.W.2d 780, 03−3089 to authorize the warrant. Absent an explicit finding by the trial court, a clear infer-
Under Leon, 68 U.S. 897, an officer cannot be expected to question a magis- ence from the facts can compel the conclusion that law enforcement agents would
trate’s probable−cause determination or judgment that the form of the warrant is have sought a warrant had they not obtained tainted evidence. State v. Carroll, 2010
technically sufficient except when: 1) the magistrate in issuing a warrant was WI 8, 322 Wis. 2d 299, 778 N.W.2d 1, 07−1378.
misled by information in an affidavit that the affiant knew was false or would have The good−faith exception to the exclusionary rule does not apply to a situation
known was false except for a reckless disregard of the truth; 2) the issuing magis- in which: 1) no facts existed that would justify an arrest without a warrant; 2) the
trate wholly abandoned his or her judicial role; 3) when an affidavit is so lacking civil arrest warrant issued by a circuit judge was void ab initio because it did not
in indicia of probable cause as to render official belief in its existence entirely comply with any statute authorizing the court to issue a warrant and it was not sup-
unreasonable; or 4) when a warrant is so facially deficient that the executing offi- ported by an oath or affirmation; and 3) the court issued the warrant without the
cers cannot reasonably presume it to be valid. State v. Marquardt, 2005 WI 157, benefit of verification of the facts or scrutiny of the procedure to ensure that the
286 Wis. 2d 204, 705 N.W.2d 878, 04−1609. judge acted as a detached and neutral magistrate. Suppressing evidence obtained
The inquiry into whether a warrant affidavit is “so lacking in indicia of probable as a result of the unauthorized, defective warrant is necessary to preserve the integ-
cause as to render official belief in its existence entirely unreasonable,” under Leon, rity of the judicial process. State v. Hess, 2010 WI 82, 327 Wis. 2d 524, 785 N.W.2d
must be different from the inquiry into whether the facts in the warrant application 568, 08−2231.
are “clearly insufficient to support a determination of probable cause.” That the An anonymous telephone tip that specified a vehicle was driven by an unlicensed
warrant application was insufficient to support the warrant−issuing judge’s prob- person did not create articulable and reasonable suspicion of illegality justifying
able cause determination does not mean that the affidavit in support of the warrant an investigatory stop of the auto and driver. 68 Atty. Gen. 347.
was lacking in indicia of probable cause within the meaning of Leon. State v. Mar-
quardt, 2005 WI 157, 286 Wis. 2d 204, 705 N.W.2d 878, 04−1609. When a defendant makes a substantial preliminary showing that an affiant’s false
Eason added two requirements that must be met before the Leon good faith statement, knowingly or recklessly made, was the basis of the probable cause find-
exception may apply. Under Eason, a “significant investigation” does not require ing, a hearing must be held. Franks v. Delaware, 438 U.S. 154 (1978).
a showing that the investigation yielded the probable cause that would have been An “open−ended” search warrant was unconstitutional. Lo−Ji Sales, Inc. v. New
necessary to support the search at issue. At the same time, a significant investiga- York, 442 U.S. 319 (1979).
tion for purposes of Eason refers to more than the number of officers or hours The “two−pronged” test of Aguilar and Spinelli is abandoned and replaced with
devoted to an investigation. State v. Marquardt, 2005 WI 157, 286 Wis. 2d 204, a “totality of the circumstances” approach in finding probable cause based on
705 N.W.2d 878, 04−1609. informer’s tips. Illinois v. Gates, 462 U.S. 213 (1983).
The good faith exception under Leon is a doctrine that applies to police officers Under the “totality of circumstances” test, an informant’s tip met probable cause
who execute a search warrant in the mistaken belief that it is valid. Good faith is standards. Massachusetts v. Upton, 466 U.S. 727 (1984).
not a doctrine that absolves the neutral and detached judge or magistrate from a The “good faith” exception to the exclusionary rule allowed the admission of
careful, critical and independent analysis of the facts presented when exercising the evidence obtained by officers acting in objectively reasonable reliance on a search
responsibility of determining whether probable cause for a search warrant exists. warrant, issued by a detached and neutral magistrate, later found to be unsupported
State v. Sloan, 2007 WI App 146, 303 Wis. 2d 438, 736 N.W.2d 189, 06−1271. by probable cause. U.S. v. Leon, 468 U.S. 897 (1984).
Probable cause to believe that a person has committed a crime does not automati-
cally give the police probable cause to search the person’s house for evidence of Probable cause is required to invoke the plain view doctrine. Arizona v. Hicks,
that crime. State v. Sloan, 2007 WI App 146, 303 Wis. 2d 438, 736 N.W.2d 189, 480 U.S. 321 (1987).
06−1271. Evidence seized in reliance on a police record incorrectly indicating an outstand-
The use of a credit card issued to the defendant to purchase a membership to web- ing arrest warrant was not subject to suppression when the error was made by court
sites containing child pornography, together with customer records confirming the clerk personnel. Arizona v. Evans, 514 U.S. 1, 131 L. Ed. 2d 34 (1994).
defendant’s home address, e−mail address, and credit card information, resulted in There is no blanket exception to the knock and announce requirement for execut-
the inference that there was a fair probability that the defendant had received or ing warrants. To justify a no−knock entry, a reasonable suspicion that knocking and
downloaded images. Details provided on the use of computers by individuals announcing will be dangerous or futile or will inhibit the effective investigation of
involved in child pornography found in the affidavit supporting the search of the a crime must exist. Richards v. Wisconsin, 520 U.S. 385, 137 L. Ed. 2d 615 (1997).
defendant’s home strengthened this inference. State v. Gralinski, 2007 WI App When the 3 occupants of a vehicle in which drugs and cash were found in a legal
233, 306 Wis. 2d 101, 743 N.W.2d 448, 06−0929. search all failed to offer any information with respect to the ownership of the drugs
An officer’s knowledge that a vehicle’s owner’s license is revoked will support or money, it was a reasonable inference that any or all 3 of the occupants had knowl-
reasonable suspicion for a traffic stop so long as the officer remains unaware of any edge of, and exercised dominion and control over, the drugs. A reasonable officer
facts that would suggest that the owner is not driving. State v. Newer, 2007 WI App could conclude that there was probable cause to believe one or more of the men pos-
236, 306 Wis. 2d 193, 742 N.W.2d 923, 06−2388. sessed the drugs, either solely or jointly. Maryland v. Pringle, 540 U.S. 366, 157
If a search is conducted in “flagrant disregard” of the limitations in the warrant, L. Ed 2d 769, 124 S. Ct. 795 (2003).
all items seized, even items within the scope of the warrant are suppressed. When A search warrant that did not describe the items to be seized at all was so
the search consisted of moving items in plain view in order to document them, the obviously deficient that the search conducted pursuant to it was considered to be
circuit court correctly concluded that the police conduct, while troubling, did not warrantless. Groh v. Ramirez, 540 U.S. 551, 157 L. Ed 2d 1068, 124 S. Ct. 1284
require suppression of all evidence seized during the search. State v. Pender, 2008 (2004).
WI App 47, 308 Wis. 2d 428, 748 N.W.2d 471, 07−1019. Whether probable cause exists depends upon the reasonable conclusion to be
If the location to be searched is not described with sufficient particularity to drawn from the facts known to the arresting officer at the time of the arrest. An
inform officers which unit in a multi−unit building they are to search, the particular- arresting officer’s state of mind, except for the facts that he knows, is irrelevant to

the existence of probable cause. A rule that the offense establishing probable cause Evidence obtained during a mistaken arrest is admissible as long as the arresting
must be closely related to, and based on the same conduct as, the offense identified officer acted in good faith and had reasonable articulable grounds to believe that
by the arresting officer at the time of arrest is inconsistent with these principals. the suspect was the intended arrestee. State v. Lee, 97 Wis. 2d 679, 294 N.W.2d
Devenpeck v. Alford, 543 U.S. 146, 160 L. Ed. 2d 537, 125 S. Ct. 588 (2004). 547 (Ct. App. 1980).
For a conditioned anticipatory warrant to comply with the 4th amendment’s A warrantless entry into the defendant’s home was validated by the emergency
requirement of probable cause, two prerequisites of probability must be satisfied. doctrine when the officer reasonably believed lives were threatened. State v.
It must be true not only that if the triggering condition occurs there is a fair proba- Kraimer, 99 Wis. 2d 306, 298 N.W.2d 568 (1980).
bility that contraband or evidence of a crime will be found in a particular place, but The warrantless search of a fisherman’s truck by state conservation wardens
also that there is probable cause to believe the triggering condition will occur. The under statutory inspection authority was presumptively reasonable. State v. Erick-
triggering condition for an anticipatory search warrant need not be be set forth in son, 101 Wis. 2d 224, 303 N.W.2d 850 (Ct. App. 1981).
the warrant itself. U.S. v. Grubbs, 547 U.S. 90, 164 L. Ed. 2d 195, 126 S. Ct. 1494
(2006). A detained suspect’s inadvertent exposure of contraband was not an unreason-
able search. State v. Goebel, 103 Wis. 2d 203, 307 N.W.2d 915 (1981).
Valid warrants will issue to search the innocent, and people unfortunately bear
the cost. Officers executing search warrants on occasion enter a house when resi- Under Michigan v. Tyler, the warrantless search of an entire building on the
dents are engaged in private activity; and the resulting frustration, embarrassment, morning after a localized fire was reasonable as it was the continuation of the prior
and humiliation may be real, as was true here. When officers execute a valid war- night’s investigation that had been interrupted by heat and nighttime circum-
rant and act in a reasonable manner to protect themselves from harm, however, the stances. State v. Monosso, 103 Wis. 2d 368, 308 N.W.2d 891 (Ct. App. 1981).
4th amendment is not violated. Los Angeles County v. Rettele, 550 U.S. 609, 167 A warrantless entry into a home was validated by the emergency doctrine when
L.Ed. 2d 974, 127 S. Ct. 1989 (2007). an official’s reasonable actions were motivated solely by the perceived need to ren-
der immediate aid or assistance, not by the need or desire to obtain evidence. State
WARRANTLESS SEARCH AND SEIZURE v. Boggess, 115 Wis. 2d 443, 340 N.W.2d 516 (1983).
An officer making an arrest at a suspect’s home pursuant to a warrant, after the Police having probable cause to believe a vehicle contains criminal evidence
suspect opens the door, can arrest for a narcotics violation based on narcotics in may search the vehicle without a warrant or exigent circumstances. State v. Tomp-
plain sight in the room. Schill v. State, 50 Wis. 2d 473, 184 N.W.2d 858. kins, 144 Wis. 2d 116, 423 N.W.2d 823 (1988).
Police officers properly in an apartment where drugs were discovered may pat Fire fighting presents exigent circumstances justifying a warrantless entry. A
down the pockets of a stranger who walks in and may seize a large, hard object felt, fire fighter may contact police to inform them of the presence of illegal possessions
in order to protect themselves. State v. Chambers, 55 Wis. 2d 289, 198 N.W.2d 377. in plain view. A subsequent warrantless search and seizure is proper. State v. Gon-
After stopping and frisking the defendant properly, discovering several car- zalez, 147 Wis. 2d 165, 432 N.W.2d 651 (Ct. App. 1988).
tridges, the police were justified in looking under the car seat and in the glove A reasonable police inventory search is an exception to the warrant requirement.
compartment for a gun. State v. Williamson, 58 Wis. 2d 514, 206 N.W.2d 613. At issue is whether an inventory was a pretext for an investigative search. State v.
When a valid arrest is made without a warrant, the officer may conduct a limited Axelson, 149 Wis. 2d 339, 441 N.W.2d 259 (Ct. App. 1989).
search of the premises. Leroux v. State, 58 Wis. 2d 671, 207 N.W.2d 589. When effecting a lawful custodial arrest of an individual in his home, a law
When an officer, mistakenly believing in good faith that the occupants of a car enforcement officer may conduct a search of closed areas within the immediate
had committed a crime, stopped the car and arrested the occupants, the arrest was area of the arrestee even though the search imposes an infringement on the arrest-
illegal, but a shotgun in plain sight on the back seat could be seized and used in evi- ee’s privacy interests. State v. Murdock, 155 Wis. 2d 217, 455 N.W.2d 618 (1990).
dence. State v. Taylor, 60 Wis. 2d 506, 210 N.W.2d 873. Under the circumstances presented, an officer properly conducted an inventory
When officers stopped a car containing 3 men meeting the description of robbery search resulting in the discovery of contraband in a purse left in a police car because
suspects within 7 minutes after the robbery and found a gun on one, they could the search was conducted pursuant to proper department policy. State v. Weide, 155
properly search the car for other guns and money. State v. Russell, 60 Wis. 2d 712, Wis. 2d 537, 455 N.W.2d 899 (1990).
211 N.W.2d 637.
Police corroboration of innocent details of an anonymous tip may give rise to
Given a valid arrest, a search is not limited to weapons or evidence of a crime, reasonable suspicion to make a stop under the totality of circumstances. A sus-
nor need it be directed to or related to the purpose of the arrest, because one who pect’s actions need not be inherently suspicious in and of themselves. State v. Rich-
has contraband or evidence of a crime on his or her person travels at his or her own ardson, 156 Wis. 2d 128, 456 N.W.2d 830 (1990).
risk when he or she is validly arrested for any reason, hence the reasonableness of
a search incident to the arrest no longer depends on the purpose of the search in rela- The validity of a “Good Samaritan” stop or entry requires that the officer had the
tion to the object of the arrest. State v. Mabra, 61 Wis. 2d 613, 213 N.W.2d 545. motive only to assist and not to search for evidence, had a reasonable belief that the
defendant needed help, and once the entry was made absent probable cause, that
Under the “open fields” doctrine, evidence that a body was found 450 feet from objective evidence existed giving rise to the investigation of criminal behavior.
the defendant’s house during random digging done at the direction of the sheriff State v. Dunn, 158 Wis. 2d 138, 462 N.W.2d 538 (Ct. App. 1990).
acting without a warrant was properly admitted into evidence. Conrad v. State, 63
Wis. 2d 616, 218 N.W.2d 252. The reasonableness of a search does not come into question unless a person had
Seizure by police of a large quantity of marijuana from the defendant’s 155−acre a reasonable privacy expectation. There is no reasonable expectation of privacy
farm did not contravene their 4th−amendment rights. State v. Gedko, 63 Wis. 2d in TDD communications made from the dispatch area of a sheriff’s department.
644, 218 N.W.2d 249. State v. Rewolinski, 159 Wis. 2d 1, 464 N.W.2d 401 (1990).
The search of the defendant’s wallet after his arrest on unrelated charges that led A parolee’s liberty is conditional. A judicially issued warrant is not required for
to the discovery of a newspaper article about a crime that, after questioning, the the seizure of an alleged parole violator in his home. State v. Pittman, 159 Wis. 2d
defendant admitted to committing was proper in order to find weapons or contra- 764, 465 N.W.2d 245 (Ct. App. 1990).
band that might have been hidden there. State v. Mordeszewski, 68 Wis. 2d 649, The evidentiary search of a person not named in a search warrant, but present
229 N.W.2d 642. during the search of a residence reasonably suspected of being a drug house, was
The seizure by police officers of a box of cartridges from under the edge of a reasonable. State v. Jeter, 160 Wis. 2d 333, 466 N.W.2d 211 (Ct. App. 1991).
couch on which the defendant was resting at the time of his arrest was proper under A warrantless search of an apartment for evidence of occupancy when the police
the plain−view doctrine, since if police have a prior justification to be present in a reasonably believed the tenant had vacated and the occupants were not legitimately
position to see an object in plain view and its discovery is inadvertent, the object on the premises was not unreasonable. The defendant had no reasonable expecta-
may be seized, and the use of a flashlight by one of the officers did not defeat the tion of privacy in the apartment or in property kept there. State v. Whitrock, 161
inadvertence requirement. Sanders v. State, 69 Wis. 2d 242, 230 N.W.2d 845. Wis. 2d 960, 468 N.W.2d 696 (1991).
A warrantless search of 2 persons for concealed weapons was reasonable when Blood may be drawn in a search incident to an arrest if police have reasonable
an armed robbery with a sawed−off shotgun had been committed a short time suspicion that blood contains evidence of a crime. State v. Seibel, 163 Wis. 2d 164,
before by two men, one of whom matched the description given for one of the rob- 471 N.W.2d 226 (1991).
bers. Penister v. State, 74 Wis. 2d 94, 246 N.W.2d 115. When a convicted defendant is awaiting sentencing for a drug related offense and
The doctrine of exigency is founded upon actions of the police that are consid- probation is a sentencing option, the judge may order, without a warrant, probable
ered reasonable. The element of reasonableness is supplied by a compelling need cause, or individualized suspicion, that the defendant submit to urinalysis to deter-
to assist the victim or apprehend those responsible, not the need to secure evidence. mine if drugs are present. State v. Guzman, 166 Wis. 2d 577, 480 N.W.2d 446
West v. State, 74 Wis. 2d 390, 246 N.W.2d 675. (1992).
A warrantless search by a probation officer was constitutionally permissible Drawing of blood sample without consent is reasonable when: 1) it is drawn inci-
when probable cause existed for the officer to attempt to determine whether the pro- dent to an arrest; 2) there is a clear indication that the desired evidence will be
bationer had violated the terms of probation. State v. Tarrell, 74 Wis. 2d 647, 247 found; and 3) exigent circumstances exist. Rapid dissipation of blood alcohol is
N.W.2d 696. an exigent circumstance. Force allowable in obtaining a sample is discussed. State
The plain view doctrine does not apply if the observation is not made inadver- v. Krause, 168 Wis. 2d 578, 484 N.W.2d 347 (Ct. App. 1992).
tently or if the officer does not have the right to be in the place from which the The exception allowing the warrantless search of automobiles is not extended
observation is made. State v. Monahan, 76 Wis. 2d 387, 251 N.W.2d 421. to a camper trailer unhitched from a towing vehicle. State v. Durbin, 170 Wis. 2d
Warrantless searches of automobiles are discussed. Thompson v. State, 83 Wis. 475, 489 N.W.2d 655 (Ct. App. 1992).
2d 134, 265 N.W.2d 467 (1978). A warrantless search of a commercial premises without the owner’s consent
The criteria used as justification for warrantless searches of students by teachers when a licensing ordinance provided that the licensed premises “shall be open to
are discussed. Interest of L.L. v. Washington County Cir. Ct. 90 Wis. 2d 585, 280 inspection at any time” was illegal. State v. Schwegler, 170 Wis. 2d 487, 490
N.W.2d 343 (Ct. App. 1979). N.W.2d 292 (Ct. App. 1992).
A warrantless entry under the emergency rule justified a subsequent entry that The frisk of a person not named in a search warrant during the execution of the
did not expand the scope or nature of the original entry. La Fournier v. State, 91 warrant was reasonable when the occupants of the residence were very likely to be
Wis. 2d 61, 280 N.W.2d 746 (1979). involved in drug trafficking. Drugs felt in a pocket during the frisk were lawfully
An investigatory stop−and−frisk for the sole purpose of discovering a suspect’s seized when the officer had probable cause to believe there was a connection
identity was lawful under the facts of the case. State v. Flynn, 92 Wis. 2d 427, 285 between what was felt and criminal activity. State v. Guy, 172 Wis. 2d 86, 492
N.W.2d 710 (1979). N.W.2d 311 (1992).
Furnishing police with the bank records of a depositor who had victimized the Dissipation of alcohol in the bloodstream constitutes a sufficient exigency to jus-
bank was not an unlawful search and seizure. State v. Gilbertson, 95 Wis. 2d 102, tify a warrantless blood draw when made at an officer’s direction following an
288 N.W.2d 877 (Ct. App. 1980). arrest for OWI. State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993).

A warrantless protective sweep of a residence incident to an arrest requires the Detaining a person at his home and transporting him about one mile to the scene
police to have a reasonable suspicion based on articulable facts that the residence of an accident in which he was involved was an investigative stop and not an arrest,
harbors an individual posing a danger to the officers. State v. Kruse, 175 Wis. 2d moved the person within the vicinity of the stop within the meaning of s. 968.24,
89, 499 N.W.2d 185 (Ct. App. 1993). and was a reasonable part of an ongoing accident investigation. State v. Quartana,
The 6−factor analysis for use in determining the reasonableness of an investiga- 213 Wis. 2d 440, 570 N.W.2d 618 (Ct. App. 1997), 97−0695.
tory stop is discussed. State v. King, 175 Wis. 2d 146, N.W.2d (Ct. App. 1993). The warrantless search of the defendant’s purse when it was being returned to
The rule that a judicial determination of probable cause to support a warrantless her while still in custody was authorized when the search would have been autho-
arrest must be made within 48 hours applies to Wisconsin. The failure to comply rized at the time of the arrest and when the return of the purse could have given the
did not require suppression of evidence not obtained because of the delay where defendant access to a weapon or evidence. State v. Wade, 215 Wis. 2d 684, 573
probable cause to arrest was present. State v. Koch, 175 Wis. 2d 684, 499 N.W.2d N.W.2d 228 (Ct. App. 1998), 97−0193.
153 (1993). When a third party lacks actual common authority to consent to a search of a
Students have no reasonable privacy expectation in lockers when a school adopts defendant’s residence, the police may rely on the third party’s apparent authority,
a written policy retaining ownership and possessory control of the lockers. Interest if that reliance is reasonable. There is no presumption of common authority to con-
of Isiah B. 176 Wis. 2d 639, 500 N.W.2d 637 (1993). sent to a search and the police must make sufficient inquiry to establish apparent
An officer’s step onto the threshold of the defendant’s home constituted an entry authority. State v. Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352 (1998), 96−0008.
subject to constitutional protection. State v. Johnson, 177 Wis. 2d 224, 501 N.W.2d A warrantless entry may be justified when police engage in a bona fide commu-
876 (Ct. App. 1993). nity caretaker activity, although the ultimate test is reasonableness, considering the
A defendant under lawful arrest has a diminished privacy interest in personal degree of public interest and exigency of the situation, the circumstances surround-
property inventoried by jail authorities and a warrantless search of the property ing the search, whether an automobile is involved, and whether there are alterna-
when there is probable cause to believe it contains evidence is valid. State v. Jones, tives to entry. State v. Paterson, 220 Wis. 2d 526, 583 N.W.2d 190 (Ct. App. 1998),
181 Wis. 2d 194, 510 N.W.2d 784 (Ct. App. 1993). See also State v. Betterly, 183 97−2066. See also, State v. Ferguson, 2001 WI App 102, 244 Wis. 2d 17, 629
Wis. 2d 165, 515 N.W.2d 911 (Ct. App. 1994). N.W.2d 788, 00−0038; State v. Ziedonis, 2005 WI App 249, 287 Wis. 2d 831, 707
A warrantless entry by uniformed officers to make arrests after undercover N.W.2d 565, 04−2888.
agents gained permissive entrance to the premises was justified under the consent Reasonable suspicion required in a Terry investigative search is a common sense
exception and no exigent circumstances were required. State v. Johnston, 184 Wis. test of what under the circumstances a reasonable police officer would reasonably
2d 794, 518 N.W.2d 759 (1994). suspect in light of his or her experience. Police in an area known for drug dealing
A non−parolee living with a parolee has a legitimate expectation of privacy in were justified to stop a driver when at nearly the same time they observed a woman
shared living quarters, but a warrantless search authorized as a condition of parole approach then turn from the driver’s parked car when she seemed to notice the
can reasonably extend to all areas in which the parolee and non−parolee enjoy com- police and the driver immediately exited the parking lot he was in. State v. Amos,
mon authority. Evidence found in such a search may be used against the non−pa- 220 Wis. 2d 793, 584 N.W.2d 170 (Ct. App. 1998), 97−3044.
rolee. State v. West, 185 Wis. 2d 68, 517 N.W.2d 482 (1994). There is an expectation of privacy in commercial property that is applicable to
The failure to conduct a probable cause hearing within 48 hours of arrest is not administrative inspections. Because administrative inspections are not supported
a jurisdictional defect and not grounds for dismissal with prejudice or voiding of by probable cause, they will not be reasonable if, instead of being conducted to
a subsequent conviction unless the delay prejudiced the defendant;’s right to pres- enforce a regulatory scheme, they are conducted as a pretext to obtain evidence of
ent a defense. State v. Golden, 185 Wis. 2d 763, 519 N.W.2d 659 (Ct. App. 1994). criminal activity. State v. Mendoza, 220 Wis. 2d 803, 584 N.W.2d 174 (Ct. App.
1998), 97−0952. Reversed on other grounds. 227 Wis. 2d 838, 596 N.W.2d 736
A determination that an area was within a defendant’s immediate control at the (1999), 97−0952.
time of arrest does not give police authority to generally search the premises. Only
a limited search is justified. State v. Angiolo, 186 Wis. 2d 488, N.W.2d 923 (Ct. There is no reasonable expectation of privacy in a hospital emergency or operat-
App. 1994). ing room. An officer who was present, with the consent of hospital staff, in an oper-
ating room during an operation and collected, as evidence, cocaine removed from
The plain view exception applies if the following criteria are met: 1) the officer an unconscious defendant’s intestine did not conduct a search and did not make an
has prior justification for being present; 2) the evidence is in plain view and its dis- unreasonable search. State v. Thompson, 222 Wis. 2d 179, 585 N.W.2d 905 (Ct.
covery inadvertent; and 3) the seized item and facts known by the officer at the time App. 1998), 97−2744.
of seizure provide probable cause to believe there is a connection between a crime A warrant authorizing the search of a particularly described premises may permit
and the evidence. State v. Angiolo, 186 Wis. 2d 488, N.W.2d 923 (Ct. App. 1994).
the search of vehicles owned or controlled by the owner of, and found on, the prem-
Unlike private homes, warrantless inspections of commercial premises are not ises. State v. O’Brien, 223 Wis. 2d 303, 588 N.W.2d 8 (1999), 96−3028.
necessarily unreasonable. A warrantless inspection of a dairy farm under authority The “emergency doctrine” justifies a warrantless search when an officer is actu-
of ss. 93.08, 93.15 (2), 97.12 (1) and related administrative rules made without prior ally motivated by a perceived need to render aid and a reasonable person under the
notice and without the owner being present was not unconstitutional. Because the circumstances would have thought an emergency existed. State v. Richter, 224
administrative rules govern operations, equipment, and processes not typically Wis. 2d 814, 592 N.W.2d 310 (Ct. App. 1999), 98−1332.
conducted in residential areas, the rules and statutes sufficiently preclude making Reasonable suspicion justifying an investigative stop may be based on an anony-
warrantless searches of residences. Lundeen v. Dept. of Agriculture, 189 Wis. 2d
255, 525 N.W.2d 758 (1994). mous tip that does not predict future behavior. The key concern is the tipster’s
veracity. Officers’ corroboration of readily observable information supports a find-
An arrest warrant was not legal authority to enter and search the home of a third ing that because the tipster was correct about innocent activities, he or she is prob-
party based on an officer’s simple belief that the subject of the warrant might be ably correct about the ultimate fact of criminal activity. State v. Williams, 225 Wis.
there. The mere fact that the subject could leave was not an exigent circumstance 2d 159, 591 N.W.2d 823 (1999), 96−1821.
justifying the warrantless search when the warrant was a pick−up warrant for fail- A traffic stop must be based on probable cause, not reasonable suspicion. If the
ure to pay a traffic fine. State v. Kiper, 193 Wis. 2d 69, 532 N.W.2d 698 (1995). facts support a violation only under a legal misinterpretation, no violation has
Suppression of evidence is not required when a law enforcement officer obtains occurred, and by definition there can be no probable cause that a violation has
evidence outside his or her jurisdiction. Any jurisdictional transgression violates occurred. State v. Longcore, 226 Wis. 2d 1, 594 N.W.2d 412 (Ct. App. 1999),
the appropriate jurisdiction’s authority, not the defendant’s rights. State v. Mieritz, 98−2792.
193 Wis. 2d 571, 534 N.W.2d 632 (Ct. App. 1995). Being in a high crime area, making brief contact with a car, and hanging around
A warrantless search of a vehicle was constitutional when the defendant fled the a neighborhood, each standing alone would not create reasonable suspicion justify-
vehicle to avoid arrest. The defendant did not have a reasonable expectation of pri- ing a Terry stop. When these events occurred in sequence and were considered with
vacy in the vehicle. State v. Roberts, 196 Wis. 2d 445, 538 N.W.2d 825 (Ct. App. the officers training and experience, the reputation of the neighborhood, and the
1995), 94−2583. time of day, there was enough to create reasonable suspicion. State v. Allen, 226
To find a pat−down search to be reasonable requires the officer to have a reason- Wis. 2d 66, 593 N.W.2d 504 (Ct. App. 1999), 98−1690.
able suspicion that a suspect is armed, looking at the totality of the circumstances. A picture of a mushroom on the defendant’s wallet, his appearance of nervous-
The officer’s perception of the area as a high−crime area, the time of day, and the ness, and the lateness of the hour were insufficient factors to extend a stop. State
suspect’s nervousness are all factors that may be considered. State v. Morgan, 197 v. Betow, 226 Wis. 2d 90, 593 N.W.2d 499 (Ct. App. 1999), 98−2525. See also State
Wis. 2d 200, 539 N.W.2d 887 (1995), 93−2089. v. Gammons, 2001 WI App 36, 241 Wis. 2d 296, 625 N.W.2d 623, 00−0377. See
A probation officer may conduct a warrantless search. That the underlying con- also State v. Arias, 2008 WI 84, 311 Wis. 2d 358, 752 N.W.2d 748, 06−0974.
viction is subsequently overturned does not retroactively invalidate the search. The owner of a commercial property has a reasonable expectation of privacy in
State v. Angiolo, 207 Wis. 2d 561, 558 N.W.2d 701 (Ct. App. 1996), 96−0099. those areas immediately surrounding the property only if affirmative steps have
An initial traffic stop is not unlawfully extended by asking the defendant if he been taken to exclude the public. State v. Yakes, 226 Wis. 2d 425, 595 N.W.2d 108
has drugs or weapons and requesting permission to search. When there is justifica- (Ct. App. 1999), 98−0470.
tion for the initial stop, it is the extension of the stop beyond the point reasonably A home’s backyard and back door threshold were within the home’s curtilage;
justified by the stop and not the type of questions asked that render a stop unconsti- an officer’s warrantless entry was unlawful and evidence seized as a result of the
tutional. State v. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996), entry was subject to suppression. State v. Wilson, 229 Wis. 2d 256, 600 N.W.2d
96−1094. 14 (Ct. App. 1999), 98−3131.
An officer has the right to remain at an arrested person’s elbow at all times. When When the 2 other occupants of a vehicle had already been searched without any
an officer accompanied a juvenile in his custody into the juvenile’s house, leaving drugs being found, a search of the 3rd occupant based solely on the odor of mari-
the juvenile’s “elbow” to enter a bedroom where incriminating evidence was juana was made with probable cause and was reasonable. State v. Mata, 230 Wis.
found, monitoring of the juvenile stopped and an unconstitutional search occurred. 2d 567, 602 N.W.2d 158 (Ct. App. 1999), 98−2895.
State v. Dull, 211 Wis. 2d 652, 565 N.W.2d 575 (Ct. App. 1997), 96−1744. A probation officer may search a probationer’s residence without a warrant if the
A threat to the safety of the suspect or others is an exigent circumstance justifying officer has reasonable grounds to believe the terms of probation are being violated,
the warrantless entry of a residence. The mere presence of firearms does not create but the officer may not conduct a warrantless search as a subterfuge to further a
exigent circumstances. When conducting the unannounced warrantless entry criminal investigation to help the police evade the usual warrant and probable cause
creates the potential danger, that conduct cannot justify the warrantless entry. State requirements. State v. Hajicek, 230 Wis. 2d 697, 602 N.W.2d 93 (Ct. App. 1999),
v. Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997), 96−2052. 98−3485.
The likelihood that evidence will be destroyed is an exigent circumstance justi- The risk that evidence will be destroyed is an exigent circumstance that may jus-
fying the warrantless entry of a residence. The mere presence of contraband does tify a warrantless search. When suspects are aware of the presence of the police,
not create exigent circumstances. State v. Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d that risk increases. The seriousness of the offense as determined by the overall pen-
316 (Ct. App. 1997), 96−2052. alty structure for all potentially chargeable offenses also affects whether exigent

circumstances justify a warrantless search. State v. Hughes, 2000 WI 24, 233 Wis. Whether exigent circumstances existed justifying a warrantless entry to prevent
2d 280, 607 N.W.2d 621, 97−1121. destruction of evidence after the defendant saw, and retreated from, a plain−clothes
Police officers do not need to choose between completing a protective frisk and officer was not a question of whether the defendant knew that the detective was a
handcuffing a suspect in a field investigation. They may do both. State v. McGill, police officer, but whether it was reasonable for the officer to believe that he had
2000 WI 38, 234 Wis. 2d 560, 609 N.W.2d 795, 98−1409. been identified and that the suspect would destroy evidence as a consequence.
A frisk of a motor vehicle passenger that occurred 25 minutes after the initial stop State v. Garrett, 2001 WI App 240, 248 Wis. 2d 61, 635 N.W.2d 615, 00−3183.
that was a precautionary measure, not based on the conduct or attributes of the per- For the warrantless search of an area made incident to the making of an arrest
son frisked, was unreasonable. State v. Mohr, 2000 WI App 111, 235 Wis. 2d 220, to be justified as a protective sweep to protect the safety of police officers where
613 N.W.2d 186, 99−2226. the area searched was not in the immediate vicinity of where the arrest was made,
“Hot pursuit,” defined as immediate or continuous pursuit of a suspect from a there must be articulable facts that would warrant a reasonably prudent officer to
crime scene is an exigent circumstance justifying a warrantless search. An officer believe that the area harbored an individual posing a danger to the officers. State
is not required to personally observe the crime or fleeing suspect. State v. Richter, v. Garrett, 2001 WI App 240, 248 Wis. 2d 61, 635 N.W.2d 615, 00−3183.
2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29, 98−1332. When a caller identifies himself or herself by name, placing his or her anonymity
When a vehicle passenger has been seized pursuant to a lawful traffic stop, the at risk, and the totality of the circumstances establishes a reasonable suspicion that
seizure does not become unreasonable because an officer asks the passenger for criminal activity may be afoot, the police may execute a lawful investigative stop.
identification. The passenger is free to refuse to answer, and refusal will not justify Whether the caller gave correct identifying information or the police ultimately
prosecution nor give rise to reasonable suspicion of wrongdoing. However, if the could have verified the information, the caller, by providing the information, risked
passenger chooses to answer falsely, the passenger can be charged with obstruc- that his or her identity would be discovered and cannot be considered anonymous.
tion. State v. Griffith, 2000 WI 72, 236 Wis. 2d 48, 613 N.W.2d 72, 98−0931. State v. Sisk, 2001 WI App 182, 247 Wis. 2d 443, 634 N.W.2d 877, 00−2614.
The property of a passenger in a motor vehicle may be searched when the police The need to transport a person in a police vehicle is not an exigency that justifies
have validly arrested the driver but do not have a reasonable basis to detain or prob- a search for weapons. More specific and articulable facts must be shown to support
able cause to arrest the passenger. State v. Pallone, 2000 WI 77, 236 Wis. 2d 162, a Terry frisk. While a routine pat−down of a person before a police officer places
613 N.W.2d 568, 98−0896. the person in a squad car is wholly reasonable, evidence gleaned from the search
The search of a crawl space in a ceiling, which was located in an area where will only be admissible if there are particularized issues of safety concerns about
police had heard much activity, was large enough to hide a person, and was secured the defendant. State v. Hart, 2001 WI App 283, 249 Wis. 2d 329, 639 N.W.2d 213,
by screws that had to be removed with a screwdriver, was a reasonable “protective 00−1444.
sweep” to search for persons who would pose a threat to the police as they executed Although no traffic violation occurred, a traffic stop to make contact with the
an arrest warrant for a murder suspect. State v. Blanco, 2000 WI App 119, 237 Wis. defendant was reasonable when police had reasonable suspicion that the defendant
2d 395, 614 N.W.2d 512, 98−3153. had previously been involved in a crime and the defendant had intentionally
A police officer performing a Terry stop and requesting identification could per- avoided police attempts to engage her in voluntary conversation. State v. Olson,
form a limited search for identifying papers when the information received by the 2001 WI App 284, 249 N.W.2d 391, 639 N.W.21d 207, 01−0433.
officer was not confirmed by police records, the intrusion on the suspect was mini- It was reasonable to conduct a Terry search of a person who knocked on the door
mal, the officer observed that the suspect’s pockets were bulging, and the officer of a house while it was being searched for drugs pursuant to a warrant. State v.
had experience with persons who claimed to have no identification when in fact Kolp, 2002 WI App 17, 250 Wis. 2d 296, 640 N.W.2d 551, 01−0549.
they did. State v. Black, 2000 WI App 175, 238 Wis. 2d 203, 617 N.W.2d 210, A warrantless blood draw by a physician in a jail setting may be unreasonable
99−1686. if it invites an unjustified element of personal risk of pain and infection. Absent
The Paterson community caretaker exception justified a warrantless entry dur- evidence of those risks, a blood draw under those circumstances was reasonable.
ing an emergency detention of a mentally ill person who was threatening suicide. State v. Daggett, 2002 WI App 32, 250 Wis. 2d 112, 640 N.W.2d 546, 01−1417.
A protective sweep of the premises while acting as a community caretaker was rea- Terry applies to confrontations between the police and citizens in public places
sonable. State v. Horngren, 2000 WI App 177, 238 Wis. 2d 347, 617 N.W.2d 508, only. For private residences and hotels, in the absence of a warrant, the police must
99−2065. have probable cause and exigent circumstances or consent to justify an entry. Rea-
A warrantless blood draw is permissible when: 1) the blood is taken to obtain sonable suspicion is not a prerequisite to an officer’s seeking consent to enter a pri-
evidence of intoxication from a person lawfully arrested; 2) there is a clear indica- vate dwelling. If the police have lawfully entered a dwelling with valid consent and
tion evidence of intoxication will be produced; 3) the method used is reasonable have a reasonable suspicion that a suspect is armed, a Terry pat down for weapons
and performed in a reasonable manner; and 4) the arrestee presents no reasonable is permissible. State v. Stout, 2002 WI App 41, 250 Wis. 2d 768, 641 N.W.2d 474,
objection. State v. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240, 01−0904.
99−1765.
A warrantless, nonconsensual blood draw from a person arrested, with probable
That a driver stopped at a stop sign for a few seconds longer than normal, that
cause, for drunk driving is constitutional based on the exigent circumstances
it was late in the evening, and that there was little traffic did not give rise to a reason-
able suspicion that the driver was committing an unlawful act. State v. Fields, 2000 exception to the warrant requirement of the 4th amendment, even if the person
WI App 218, 239 Wis. 2d 38, 619 N.W.2d 279, 00−0694. offers to submit to a chemical test other than the blood test chosen by law enforce-
A warrantless entry need not be subjectively motivated solely by a perceived ment, provided that the blood draw complies with the factors enumerated in Boh-
need to render aid and assistance in order for the “emergency doctrine” to apply. ling. State v. Krajewski, 2002 WI 97, 255 Wis. 2d 98, 648 N.W.2d 385, 99−3165.
A dual motivation of investigating a potential crime and rendering aid and assist- A warrantless search of a home is presumptively unreasonable, but exigent cir-
ance may be present. State v. Rome, 2000 WI App 243, 239 Wis. 2d 491, 620 cumstances that militate against delay in getting a warrant can justify immediate
N.W.2d 225, 00−0796. entry and search. Whether the officers acted reasonably in entering the house with-
Whether a search is a probation search, which may be conducted without a war- out a warrant is measured against what a reasonable police officer would reason-
rant, or a police search, which may not, is a question of constitutional fact to be ably believe under the circumstances. State v. Londo, 2002 WI App 90, 252 Wis.
reviewed in a 2−step review of historical and constitutional fact. A determination 2d 731, 643 N.W.2d 869, 01−1015.
of reasonableness of the search must also be made. A search is reasonable if the Canine sniffs are not searches within the meaning of the 4th amendment, and
probation officer has reasonable grounds to believe that the probationer has contra- police are not required to have probable cause or reasonable suspicion before walk-
band. Cooperation with police officers does not change a probation search into a ing a dog around a vehicle for the purpose of detecting drugs in the vehicle’s inte-
police search. State v. Hajicek, 2001 WI 3, 240 Wis. 2d 349, 620 N.W.2d 781, rior. A dog’s alert on an object provides probable cause to search that object, pro-
98−3485. vided that the dog is trained in narcotics detection and has demonstrated a sufficient
In light of the reduced expectation of privacy that applies to property in an auto- level of reliability in detecting drugs in the past and the officer with the dog is famil-
mobile, the search of a vehicle passenger’s jacket based upon the driver’s consent iar with how it reacted when it smelled contraband. State v. Miller, 2002 WI App
to the search of the vehicle was reasonable. State v. Matejka, 2001 WI 5, 241 Wis. 150, 256 Wis. 2d 80, 647 N.W.2d 348, 01−1993.
2d 52, 621 N.W.2d 891, 99−0070. Evidence from a warrantless nonconsensual blood draw is admissible when: 1)
Before the government may invade the sanctity of the home, it must demonstrate the blood is drawn to obtain evidence of intoxication from a person lawfully
exigent circumstances that overcome the presumption of unreasonableness that arrested for drunk−driving; 2) there is a clear indication that the blood draw will
attaches to all warrantless home entries. Reluctance to find an exigency is espe- produce evidence of intoxication; 3) the method used to take the blood sample is
cially appropriate when the underlying offense for which there is probable cause reasonable and is performed reasonably; and 4) the arrestee presents no reasonable
to arrest is relatively minor. State v. Kryzaniak, 2001 WI App 44, 241 Wis. 2d 358, objection to the blood draw. In the absence of an arrest, probable cause to believe
624 N.W.2d 389, 00−1149. blood currently contains evidence of a drunk−driving−related violation satisfies the
Under Florida v. J.L, an anonymous tip giving rise to reasonable suspicion must first and 2nd prongs. State v. Erickson, 2003 WI App 43, 260 Wis. 2d 279, 659
bear indicia of reliability. That the tipster’s anonymity is placed at risk indicates N.W.2d 407, 01−3367.
that the informant is genuinely concerned and not a fallacious prankster. Corrobo- A reasonable probation search is lawful even if premised, in part, on information
rated aspects of the tip also lend credibility. The corroborated actions of the suspect obtained in violation of the 4th amendment by law enforcement. State v. Wheat,
must be inherently criminal in and of themselves. State v. Williams, 2001 WI 21, 2002 WI App 153, 256 Wis. 2d 270, 647 N.W.2d 441, 01−2224.
241 Wis. 2d 631, 623 N.W.2d 106, 96−1821. A three−step test is used to evaluate the reasonableness of a seizure made under
An anonymous tip regarding erratic driving from another driver calling from a the community caretaker exception: 1) that a seizure within the meaning of the 4th
cell phone contained sufficient indicia of reliability to justify an investigative stop amendment has occurred; 2) whether the police conduct was bona fide community
when the informant was exposed to possible identification, and therefore possible caretaker activity; and 3) whether the public need and interest outweighed the intru-
arrest if the tip proved false; the tip reported contemporaneous and verifiable sion upon the privacy of the individual. A bona fide community caretaker activity
observations regarding the driving, location, and vehicle; and the officer verified is one that is divorced from the detection, investigation, or acquisition of evidence
many of the details in the tip. That the tip reasonably suggested intoxicated driving relating to the violation of a criminal statute. State v. Clark, 2003 WI App 121, 265
created an exigency strongly in favor of immediate police investigation without the Wis. 2d 557, 666 N.W.2d 112, 02−2195.
necessity that the officer personally observe erratic driving. State v. Rutzinski, When an unlocked vehicle was not 1) involved in an accident; 2) interrupting the
2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516, 98−3541. flow of traffic; 3) disabled or damaged; 4) violating parking ordinances; or 5) in any
The state constitution does not provide greater protection under the automobile way jeopardizing the public safety or the efficient movement of vehicular traffic,
exception for warrantless searches than the 4th amendment. The warrantless it was unreasonable to impound and tow the vehicle to ensure that the vehicle and
search of a vehicle is allowed when there is probable cause to search the vehicle any property inside it would not be stolen when there were reasonable alternatives
and the vehicle is mobile. The exception apples to vehicles that are not in public to protect the vehicle. Evidence seized in an “inventory search” of the vehicle was
places. There is no requirement that obtaining a warrant be impracticable. State inadmissible. State v. Clark, 2003 WI App 121, 265 Wis. 2d 557, 666 N.W.2d 112,
v. Marquardt, 2001 WI App 219, 247 Wis. 2d 765, 635 N.W.2d 188, 01−0065. 02−2195.

Before the government may invade the sanctity of the home without a warrant, The 4th amendment neither forbids nor permits all bodily intrusions. The
the government must demonstrate not only probable cause but also exigent circum- amendment’s function is to constrain against intrusions that are not justified in the
stances that overcome the presumption of unreasonableness. When a police officer circumstances, or are made in an improper manner. Whether the warrantless
placed his foot in a doorway to prevent the defendant from closing the door, the act administration of laxatives done to assist the police in recovering suspected swal-
constituted an entry into the home. A warrantless home arrest cannot be upheld lowed heroin was a reasonable search required evaluating 3 factors: 1) the extent
simply because evidence of the suspect’s blood alcohol level might have dissipated to which the procedure may threaten the safety or health of the individual; 2) the
while the police obtained a warrant. State v. Larson, 2003 WI App 150, 266 Wis. extent of the intrusion upon the individual’s dignitary interests in personal privacy
2d 236, 668 N.W.2d 338, 02−2881. and bodily integrity; and 3) the community’s interest in fairly and accurately deter-
The propriety of a warrantless search of a person’s garbage outside the persons’ mining guilt or innocence. State v. Payano−Roman, 2006 WI 47, 290 Wis. 2d 380,
home comes under a two−part test: 1) whether the individual by his or her conduct 714 N.W.2d 548, 04−1029.
has exhibited an actual, subjective expectation of privacy, and 2) whether that Deciding when a seizure occurs is important because the moment of a seizure
expectation is justifiable in that it is one which society will recognize as reasonable. limits what facts a court may consider in determining the existence of reasonable
Consideration of curtilage or open fields appropriately falls within an expectation− suspicion for that seizure. The Mendenhall, 446 U.S. 544, test applies when the
of−privacy analysis and is not a separate factor. The defendant did not have a rea- subject of police attention is either subdued by force or submits to a show of author-
sonable expectation of privacy in garbage placed in a dumpster not set out for ity. Where, however, a person flees in response to a show of authority, Hodari D.,
collection located down a private driveway marked “Private Property.” State v. 499 U.S. 279, governs when the seizure occurs. The Hodari D. test does not super-
Sigarroa, 2004 WI App 16, 269 Wis. 2d 234, 674 N.W.2d 894, 03−0703. sede the Mendenhall test, it supplements it. State v. Young, 2006 WI 98, 294 Wis.
When the police are lawfully on the suspect’s premises by virtue of a valid search 2d 1, 717 N.W.2d 729, 03−2968.
warrant, they may make a warrantless arrest of the suspect prior to the search if the An anonymous tip, whose indicia of reliability was debatable, along with behav-
arrest is supported by probable cause. State v. Cash, 2004 WI App 63, 271 Wis. ior observed by the officer at the scene and deemed suspicious provided reasonable
2d 451, 677 N.W.2d 709, 03−1614. suspicion to justify a Terry stop. Terry holds that the police are not required to rule
The rapid dissipation of alcohol in the bloodstream of an individual arrested for out the possibility of innocent behavior before initiating a Terry stop. Suspicious
drunk driving is an exigency that justifies the warrantless nonconsensual test of the conduct by its very nature is ambiguous, and the principle function of the investiga-
individual’s blood, so long as the test satisfies the 4 factors enumerated in Bohling. tive stop is to quickly resolve that ambiguity. State v. Patton, 2006 WI App 235,
A presumptively valid chemical sample of the defendant’s breath does not extin- 297 Wis. 2d 415, 724 N.W.2d 347, 05−3084.
guish the exigent circumstances justifying a warrantless blood draw. The nature There is a difference between police informers, who usually themselves are
of the evidence sought, (the rapid dissipation of alcohol from the bloodstream) not criminals, and citizen informers that calls for different means of assessing credibil-
the existence of other evidence, determines the exigency. State v. Faust, 2004 WI ity. A citizen informant’s reliability is subject to a much less stringent standard.
99, 274 Wis. 2d 183, 682 N.W.2d 371, 03−0952. Citizens who purport to have witnessed a crime are viewed as reliable, and police
A law enforcement officer acted reasonably when during a routine traffic stop are allowed to act accordingly although other indicia of reliability have not yet been
he requested the passengers, as well as the driver, to exit the vehicle and individu- established. That an informant does not give some indication of how he or she
ally asked them questions outside the scope of the initial traffic stop after officer knows about the suspicious or criminal activity reported bears significantly on the
had become aware of specific and articulable facts giving rise to the reasonable sus- reliability of the information. State v. Kolk, 2006 WI App 261, 298 Wis. 2d 99, 726
picion that a crime had been, was being, or was about to be committed. State v. Mal- N.W.2d 337, 06−0031.
one, 2004 WI 108, 274 Wis. 2d 540, 683 N.W.2d 1, 02−2216. To have a 4th amendment claim an individual must have standing. Standing
To perform a protective search for weapons, an officer must have reasonable sus- exists when an individual has a reasonable expectation of privacy; which requires
picion that a person may be armed and dangerous. A court may consider an offi- meeting a two−prong test: 1) whether the individual’s conduct exhibited an actual,
cer’s belief that his, her, or another’s safety is threatened in finding reasonable sus- subjective, expectation of privacy in the area searched and the item seized; and 2)
picion, but such a belief is not a prerequisite to a valid search. There is no per se if the individual had the requisite expectation of privacy, whether the expectation
rule justifying a search any time an individual places his or her hands in his or her of privacy was legitimate or justifiable. State v. Bruski, 2007 WI 25, 299 Wis. 2d
pockets contrary to police orders. The defendant’s hand movements must be con- 177, 727 N.W.2d 503, 05−1516.
sidered under the totality of the circumstances of the case. State v. Kyles, 2004 WI In considering whether an individual’s expectation of privacy was legitimate or
15, 269 Wis. 2d 1, 675 N.W.2d 449, 02−1540. justifiable, the following may be relevant: 1) whether the accused had a property
Whether a warrantless home entry is justified based on the need to render assist- interest in the premises; 2) whether the accused was lawfully on the premises; 3)
ance or prevent harm is judged by an objective test of whether a police officer under whether the accused had complete dominion and control and the right to exclude
the circumstances known to the officer at the time of entry reasonably believes that others; 4) whether the accused took precautions customarily taken by those seeking
delay in procuring a warrant would gravely endanger life. In addition to the circum- privacy; 5) whether the property was put to some private use; and 6) whether the
stances known to the police at the time of entry, a court may consider the subjective claim of privacy was consistent with historical notions of privacy. State v. Bruski,
beliefs of police officers involved, but only insofar as such evidence assists the 2007 WI 25, 299 Wis. 2d 177, 727 N.W.2d 503, 05−1516.
court in determining objective reasonableness. State v. Leutenegger, 2004 WI App Whether an individual may have a reasonable expectation of privacy in personal
127, 275 Wis. 2d 512, 685 N.W.2d 536, 03−0133. property found inside a vehicle that he or she does not have a reasonable expecta-
Although a known citizen informer did not observe the defendant drive his truck tion of privacy in is not governed by a bright−line rule. Principles pertinent to
in a manner consistent with someone who was under the influence of an intoxicant, whether there was a reasonable expectation of privacy are that: 1) personal property
the tip was reliable when it was based on the informer’s first−hand observation that found in vehicles is treated differently than personal property found in dwellings,
he defendant was drunk and was independently verified by the arresting officer. there being a lesser expectation of privacy in vehicles; 2) neither ownership nor
State v. Powers, 2004 WI App 143, 275 Wis. 2d 456, 685 N.W.2d 869, 03−2450. possession of an item alone establishes a reasonable expectation of privacy; 3) an
The anonymous caller in this case provided predictive information that, if true, individual’s expectation of privacy in the space, rather than concepts of property
demonstrated a special familiarity with the defendant’s affairs that the general pub- law, is critical. State v. Bruski, 2007 WI 25, 299 Wis. 2d 177, 727 N.W.2d 503,
lic would have had no way of knowing. When the officer verified this predictive 05−1516.
information, it was reasonable for the officer to believe that a person with access When the defendant was only suspected of driving a vehicle with a suspended
to such information also had access to reliable information about the defendant’s registration for an emissions violation and failing to signal for a turn, violations in
illegal activities providing reasonable suspicion to stop the defendant’s vehicle. no way linked to criminal activity or weapons possession, and when the only pur-
State v. Sherry, 2004 WI App 207, 277 Wis. 2d 194, 690 N.W.2d 435, 03−1531. ported basis for a protective search was a single, partially obscured movement of
Under Hodari D., 499 U.S. at 629, a person who did not submit to an officer’s the defendant in his vehicle that the officers observed from their squad car, the
show of police authority was not seized within the meaning of the 4th amendment. behavior observed by the officers was not sufficient to justify a protective search
Until a submission occurs, Hodari D. holds that a person is not seized for purposes of Johnson’s person and his car. State v. Johnson, 2007 WI 32, 299 Wis. 2d 675,
of the 4th amendment and therefore the person may not assert a 4th amendment 729 N.W.2d 182, 05−0573.
violation that evidence resulting from the encounter with the police was the fruit Weaving within a single traffic lane does not alone give rise to the reasonable
of an illegal seizure. State v. Young, 2004 WI App 227, 277 Wis. 2d 715, 690 suspicion necessary to conduct an investigative stop of a vehicle. The reasonable-
N.W.2d 866, 03−2968. Affirmed. 2006 WI 98, 294 Wis. 2d 1, 717 N.W.2d 729, ness of a stop must be determined based on the totality of the facts and circum-
03−2968. stances. State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, 05−2778.
Blood may be drawn in a search incident to an arrest for a non−drunk−driving A private party’s discovery, and subsequent disclosure to law enforcement, of
offense if the police reasonably suspect that the defendant’s blood contains evi- contraband is not prohibited by the 4th amendment when there is no reasonable
dence of a crime. State v. Repenshek, 2004 WI App 229, 277 Wis. 2d 780, 691 expectation of privacy in dealings with the private party. One does not generally
N.W.2d 780, 03−3089. have a reasonable expectation of privacy when delivering property to a private
An arrest immediately following a search, along with the probable cause to arrest shipping company, particularly when the shipping company posts a sign reserving
before the search, causes the search to be lawful. A search was not unlawful its right to inspect parcels left with it for shipping. State v. Sloan, 2007 WI App 146,
because the crime arrested for immediately after the search was different than the 303 Wis. 2d 438, 736 N.W.2d 189, 06−1271.
crime for which the officer had probable cause to arrest before the search. As long An employee of a private company is not acting on behalf of the government and
as there was probable cause to arrest before the search, no additional protection is free to disclose a package and material to law enforcement. Law enforcement,
from government intrusion is afforded by requiring that persons be arrested for and without a warrant, can properly replicate the search the employee has already con-
charged with the same crime as that for which probable cause initially existed. ducted. By otherwise replicating the private−party search, police did not exceed
Whether the officer subjectively intended to arrest for the first crime is not the rele- the scope of the private search by conducting a field test for drugs. State v. Sloan,
vant inquiry. The relevant inquiry is whether the officer was aware of sufficient 2007 WI App 146, 303 Wis. 2d 438, 736 N.W.2d 189, 06−1271.
objective facts to establish probable cause to arrest before the search was conducted The emergency doctrine permits officers investigating a kidnapping case to con-
and whether an actual arrest was made contemporaneously with the search. State duct a warrantless search if the officers possess an objectively reasonable belief that
v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695 N.W.2d 277, 03−1234. the particular search will result in finding the victim or evidence leading to the vic-
Under Terry, an officer is entitled not just to a patdown but to an effective pat- tim’s location. Police need not delay rescue where they reasonably believe that a
down in which he or she can reasonably ascertain whether the subject has a weapon; kidnap victim is being held and a search of the premises will lead to the victim or
where an effective patdown is not possible, the officer may take other action rea- to information about the victim’s whereabouts; time is of the essence. State v. Lar-
sonably necessary to discover a weapon. When an officer could not tell whether sen, 2007 WI App 147, 302 Wis. 2d 718, 736 N.W.2d 211, 06−1396.
a suspect had any objects hidden in his waistband because of the suspect’s bulky One common factor in some cases in which courts have concluded that the offi-
frame and heavy clothing it was reasonable for the officer to shake the suspect’s cers did not have a justifiable basis for conducting a protective sweep has been that
waistband by his belt loops in order to loosen any possible weapons. State v. Tri- the protective search takes place after the traffic investigation has been completed.
plett, 2005 WI App 255, 288 Wis. 2d 505, 707 N.W.2d 881, 04−2032. A protective sweep was justified when there were specific facts that demonstrated

that the officers’ primary concern was indeed weapons and safety and the protec- is relevant to whether a protective search is reasonable, and is therefore a factor to
tive search was the first thing the officers did, and was not an afterthought. State be considered alongside other factors that together comprise the totality of the cir-
v. Alexander, 2008 WI App 9, 307 Wis. 2d 323, 744 N.W.2d 909, 07−0403. cumstances. In this case, failure to provide an explanation effectively transformed
The fact that an officer told the defendant that she was under arrest did not neces- what the defendant maintains was an innocent movement into a specific, articulable
sarily establish an arrest when immediately after making that statement the officer fact supporting a reasonable suspicion that the defendant posed a threat to the offi-
told the defendant that she would be issued a citation and then would be free to go. cers’ safety. State v. Bridges, 2009 WI App 66, 319 Wis. 2d 217, 767 N.W.2d 593,
Although the statements are contradictory, the assurance that the defendant would 08−1207.
be issued a citation and released would lead a reasonable person to believe he or When officers found themselves in the middle of an unstable situation — having
she was not in custody. Under those circumstances a search of the defendant was to decide whether to stand guard over the open door to an apartment potentially
not incident to a lawful arrest and, as such, unlawful. State v. Marten−Hoye, 2008 occupied by armed individuals prepared to attack them while they took the time
WI App 19, 307 Wis. 2d 671, 746 N.W.2d 498, 06−1104. necessary to obtain a warrant, or instead to retreat and risk the destruction of evi-
The potential availability of an innocent explanation does not prohibit an investi- dence, along with a continuing risk of attack — the circumstances posed the sort
gative stop. If any reasonable inference of wrongful conduct can be objectively dis- of special risks that required the officers to act immediately and to forego obtaining
cerned, notwithstanding the existence of innocent inferences that could be drawn, a warrant and constituted exigent circumstances justifying warrantless entry. State
officers have the right to temporarily detain an individual for the purpose of inquiry. v. Lee, 2009 WI App 96, 320 Wis. 2d 536, 771 N.W.2d 373, 07−2976.
State v. Limon, 2008 WI App 77, 312 Wis. 2d 174, 751 N.W.2d 877, 07−1578. Unlike in Johnson, 2007 WI 32, where the defendant’s head and shoulder move-
Although Terry provides only for an officer to conduct a carefully limited search ment did not give reasonable suspicion to conduct a search of the person and car,
of the outer clothing in an attempt to discover weapons that might be used to assault here, the defendant after being stopped in his vehicle made 3 to 5 furtive−type
the officer, under the circumstances of this case, the search was properly broadened movements that the trial court found were attempts to hide something. While the
to encompass the opening of the defendant’s purse, which was essentially an exten- number of acts by itself may not be determinative of a reasonable basis, the persis-
sion of her person where the purse was accessible by her. State v. Limon, 2008 WI tence in the gesture is a specific, articulable measure of a strong intent to hide some-
App 77, 312 Wis. 2d 174, 751 N.W.2d 877, 07−1578. thing from the police officer who made the stop. Further, when the defendant said
Because of the limited intrusion resulting from a dog sniff for narcotics and the the object seemingly being hidden was candy, it was reasonable to doubt the truth-
personal interests that Art. I, s. 11 were meant to protect, a dog sniff around the out- fulness of that response and it created another articulable suspicion to support the
side perimeter of a vehicle located in a public place is not a search under the Wis- inference that the defendant was trying to hide a gun. State v. Bailey, 2009 WI App
consin Constitution. The 78 seconds during which the dog sniff occurred was not 140, 321 Wis. 2d 350, 773 N.W.2d 488, 08−3153.
an unreasonable incremental intrusion upon the defendant’s liberty. State v. Arias, The defendant, not the police, created the exigency in this case that resulted in
2008 WI 84, 311 Wis. 2d 358, 752 N.W.2d 748, 06−0974. a warrantless search when, after seeing the police outside his residence, the defend-
The “search incident to arrest” exception to the 4th amendment warrant require- ant retreated into the residence and shut the door after the police ordered him to
ment holds that a lawful arrest creates a situation justifying a contemporaneous, stop. Those actions created the exigency of the risk that evidence would be
warrantless search of the arrestee’s person and the area within his or her immediate destroyed. It was not necessary to delve into the appropriateness of the officers’
control. It is reasonable to search an area near the arrestee, but not an area so broad determination after a controlled drug buy to conduct a “knock and talk” contact
as to be unrelated to the protective purposes of the search. Although a bedroom with the defendant or whether a knock and talk creates an exigency because in this
might be considered within the defendant’s immediate presence or control the case, a knock and talk was never actually accomplished. State v. Phillips, 2009 WI
search of a bedroom was not a search incident to arrest after the defendant had been App 179, 322 Wis. 2d 576, 778 N.W.2d 157, 09−0249.
removed from the home as the defendant could not have gained possession of a In a community caretaker context, when under the totality of the circumstances
weapon or destructible evidence. State v. Sanders, 2008 WI 85, 311 Wis. 2d 257, an objectively reasonable basis for the community caretaker function is shown, that
752 N.W.2d 713, 06−2060. determination is not negated by the officer’s subjective law enforcement concerns.
Reasonable suspicion was not obviated by the fact that 15 minutes passed An officer may have law enforcement concerns even when the officer has an objec-
between the time of a stop and a protective search when the defendant was kept tively reasonable basis for performing a community caretaker function. State v.
under continuous surveillance. The passage of time can be a factor in the totality Kramer, 2009 WI 14, 315 Wis. 2d 414, 759 N.W.2d 598, 07−1834.
of circumstances, but it is not likely to be a determinative factor in establishing or Even if no probable cause exists, a police officer may conduct a traffic stop when,
eliminating reasonable suspicion for a frisk. State v. Sumner, 2008 WI 94, 312 Wis. under the totality of the circumstances, he or she has grounds to reasonably suspect
2d 292, 752 N.W.2d 783, 06−0102. that a crime or traffic violation has been or will be committed. The officer must be
The standing of a guest to challenge a search is measured by the guest’s relation- able to point to specific and articulable facts that, taken together with rational infer-
ship to the property and the host. When a person claims guest status, the analysis ences from those facts, reasonably warrant the intrusion of the stop. The crucial
examines the evidence in light of: 1) whether the guest’s use of the premises was question is whether the facts would warrant a reasonable police officer, in light of
for a purely commercial purpose; 2) the duration of the guest’s stay; and 3) the
his or her training and experience, to suspect that the individual has committed, was
nature of the guest’s relationship to the host. The defendant did not have standing
when there was little evidence of the duration or closeness of the defendant’s committing, or is about to commit a crime. While any one fact, standing alone,
friendship with the property owner, the defendant did not have a long−term rela- might well be insufficient for reasonable suspicion, as facts accumulate, reasonable
tionship to the place and not an overnight guest, and at the time of the search, used inferences about the cumulative effect can be drawn. State v. Popke, 2009 WI 37,
it largely for a commercial purpose. State v. Fox, 2008 WI App 136, 314 Wis. 2d 317 Wis. 2d 118, 765 N.W.2d 569, 08−0446.
84, 758 N.W.2d 790, 07−0685. An officer’s demand that a suspect drop an object that the officer believes could
The defendant did not have standing to assert a 4th amendment violation based be a weapon can be likened to a frisk or pat−down. The approach in Wisconsin for
on an officer unlocking the door of the public restroom the defendant occupied. determining whether a pat−down is valid has been one of reasonableness. State v.
The defendant’s expectation of privacy was not reasonable when, while his initial Carroll, 2010 WI 8, 322 Wis. 2d 299, 778 N.W.2d 1, 07−1378.
use of the restroom was for its intended purpose, he continued to have the private Law enforcement agents are justified in seizing and continuing to hold a con-
use of the locked restroom for at least 25 minutes without responding to knocking tainer if: 1) there is probable cause to believe that it contains evidence of a crime;
and while dozing off. State v. Neitzel, 2008 WI App 143, 314 Wis. 2d 209, 758 and 2) if exigencies of the circumstances demand it. Analogizing a cell phone con-
N.W.2d 159, 07−2346. taining pictures to a container was appropriate. An officer who legally viewed an
An entry into a home was illegal when police, after seizing contraband from the image of the defendant with marijuana in plain view on an open cell phone and who
defendant and seeing others on cell phones, acted on a hunch that someone would testified that he knew, based on his training and experience, that drug traffickers
destroy evidence at the defendant’s residence and entered the residence without a frequently personalize their cell phones with images of themselves with items
warrant upon the silence of the defendant’s elderly mother and made a protective acquired through drug activity, had probable cause to believe that the phone con-
sweep without seizing any contraband. However, the illegality was attenuated by tained evidence of illegal drug activity. State v. Carroll, 2010 WI 8, 322 Wis. 2d
knowledge that contraband was seized after two hours had passed from the entry, 299, 778 N.W.2d 1, 07−1378.
no search for contraband took place during the entry, and the eventual search of the When an officer had probable cause to seize a cell phone that he reasonably
residence was pursuant to a valid search warrant. State v. Rogers, 2008 WI App believed was a tool used in drug trafficking, exigent circumstances permitted the
176, 315 Wis. 2d 60, 762 N.W.2d 795, 07−1850. officer to answer an incoming call. The test for whether exigent circumstances are
Government involvement in a search is not measured by the primary occupation present focuses on whether the officer reasonably believes that the delay necessary
of the actor, but by the capacity in which the actor acts at the time in question. An to obtain a warrant, under the circumstances, threatens the destruction of evidence.
off−duty officer acting in a private capacity in making a search does not implicate The fleeting nature of a phone call is apparent; if it is not picked up, the opportunity
the 4th amendment. When an officer opened mail that contained evidence of crimi- to gather evidence is likely to be lost, as there is no guarantee or likelihood that the
nal activity that was incorrectly addressed to a person other than herself at her home caller would leave a voice mail or otherwise preserve the evidence. State v. Carroll,
address, her action was that of a private citizen. State v. Cole, 2008 WI App 178, 2010 WI 8, 322 Wis. 2d 299, 778 N.W.2d 1, 07−1378.
315 Wis. 2d 75, 762 N.W.2d 711, 07−2472. See also State v. Berggren, 2009 WI Under the collective knowledge doctrine, an investigating officer with knowl-
App 82, 320 Wis. 2d 209, 769 N.W.2d 110, 08−0786. edge of facts amounting to reasonable suspicion may direct a second officer with-
Based on the reasoning in Pallone and under the facts of this case, the police out such knowledge to stop and detain a suspect. At the same time, in a collective
could search the personal belongings of a passenger that were found outside a knowledge situation, if a defendant moves to suppress, the prosecutor must prove
motor vehicle incident to the arrest of the driver. State v. Denk, 2008 WI 130, 315 the collective knowledge that supports the stop. Proof is not supplied by the mere
Wis. 2d 5, 758 N.W.2d 775, 06−1744. testimony of one officer that he relied on the unspecified knowledge of another offi-
A security guard’s seizure, detention, and search of the defendant was not a gov- cer. Such testimony provides no basis for the court to assess the validity of the
ernment action that permitted the invocation of the exclusionary rule, because police suspicion. The testimony contains no specific, articulable facts to which the
unless state action is involved, a defendant detained by another citizen has no right court can apply the reasonable suspicion standard. State v. Pickens, 2010 WI App
to suppress the fruits of the citizen’s search. Although a citizen may detain another 5, 323 Wis. 2d 226, 779 N.W.2d 1, 08−1514.
citizen for a misdemeanor committed in the citizen’s presence and amounting to a When a temporary detention is justified, the court will still examine the circum-
breach of the peace, the court left for another day whether a citizen is privileged to stances of the detention to determine whether the investigative means used in a con-
detain another whom he or she sees breaching the peace by doing something that tinued seizure are the least intrusive means reasonably available to verify or dispel
is not a crime, but an offense subject to a forfeiture. State v. Butler, 2009 WI App the officer’s suspicion and whether it lasted no longer than was necessary to effec-
52, 317 Wis. 2d 515, 768 N.W.2d 46, 08−1178. tuate the purpose of the stop. It was an unreasonable seizure when a suspect was
During a traffic stop, a police officer may make inquiries to obtain information handcuffed based on the bare fact that the officer knew the suspect was suspected
confirming or dispelling the officer’s suspicions concerning weapons or other dan- in a prior shooting when no specific, articulable facts were presented to support that
gerous articles. The response that a person provides to an officer’s inquiry, includ- position under the collective knowledge doctrine. State v. Pickens, 2010 WI App
ing the absence of or refusal to provide a response, may provide information that 5, 323 Wis. 2d 226, 779 N.W.2d 1, 08−1514.

Although a person sharing a hotel room was found to have apparent authority When officers were entitled to seize packages in a vehicle and could have
over the room authorizing her to consent to a search of the room, she did not have searched them immediately without a warrant, a warrantless search of the packages
actual or apparent authority over the inside of the safe when the safe was locked, 3 days later was reasonable. United States v. Johns, 469 U.S. 478 (1985).
she could not open the safe, and she did not even know it was in the room. Even The vehicle exception for warrantless searches applies to motor homes. Califor-
if the scope of her consent to search the room included the safe, the search of the nia v. Carney, 471 U.S. 386 (1985).
safe was unreasonable if she had no authority to grant that consent. State v. Pickens, The good faith exception to the exclusionary rule applies when an officer reason-
2010 WI App 5, 323 Wis. 2d 226, 779 N.W.2d 1, 08−1514. ably relies upon a statute allowing a warrantless administrative search that was sub-
In a search incident to an arrest, an officer may only search that area within the sequently ruled unconstitutional. Illinois v. Krull, 480 U.S. 340 (1987).
“immediate control” of the arrestee. In a no−arrest case, the possibility of access
A protective sweep of a residence in conjunction with an arrest is permissible if
to weapons in the vehicle always exists since the driver or passenger will be allowed police reasonably believe that the area harbors an individual posing a danger to offi-
to return to the vehicle when the interrogation is completed. Because the defendant cers or others. Maryland v. Buie, 494 U.S. 325, 108 L. Ed. 2d 276 (1990).
was not under arrest, the officers had an immediate safety interest in verifying that
that the defendant did not have a gun or other weapon under his immediate control. Inadvertence is not a necessary condition to a “plain view” seizure. Horton v.
Therefore, the search of the defendant’s vehicle console was not prohibited. State California, 496 U.S. 128, 110 L. Ed. 2d 112 (1990).
v. Williams, 2010 WI App 39, 323 Wis. 2d 460, 781 N.W.2d 495, 09−0501. For a seizure of a person to occur there must either be an application of force,
Soldal, 506 U.S. 56, recognized that there could be a seizure of property in viola- however slight, or when force is absent, submission to an officer’s “show of author-
tion of the 4th amendment even though the seizure was not preceded or accompa- ity.” California v. Hodari D. 499 U.S. 279, 113 L. Ed. 690 (1991).
nied by a search. Soldal also specifically recognized that a valid consent permits A determination of probable cause made within 48 hours of a warrantless arrest
a lawful 4th amendment seizure. Here computers owned by one tenant were legally generally meets the promptness requirement. If a hearing is held more than 48
seized when another tenant, who had permission to use those computers, specifi- hours following the arrest the burden shifts to the government to demonstrate an
cally gave the detective the right to “conduct a complete search of [m]y premises, emergency or extraordinary circumstances. County of Riverside v. McLaughlin,
and all property found therein, located at” the apartment and to take the computers 500 U.S. 44, 114 L. Ed. 2d 49 (1991).
away for further analysis. State v. Ramage, 2010 WI App 77, 325 Wis. 2d 483, 784 There shall be one rule governing all automobile searches. The police may
N.W.2d 746, 09−0784. search the car and all containers within it without a warrant when they have prob-
The holding of Arizona v. Gant, 556 U.S. ___, that Belton does not authorize a able cause to believe contraband or evidence is contained in either. California v.
vehicle search incident to a recent occupant’s arrest after the arrestee has been Acevedo, 500 U.S. 565, 114 L. Ed. 2d 619 (1991).
secured and cannot access the interior of the vehicle is adopted as the proper inter- If during a lawful weapons pat down an officer feels an object whose contours
pretation of the Wisconsin Constitution’s protection against unreasonable searches or mass makes its identity immediately apparent, there has been no invasion of pri-
and seizures. State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97, vacy beyond that already authorized. Minnesota v. Dickerson, 508 U.S. 366, 124
07−1894. L. Ed. 2d 334 (1993).
Federal case law does not limit an officer’s community caretaker functions to An officer making a traffic stop may order passengers to get out of the vehicle
incidents involving automobiles, but instead counsels a cautious approach when pending the completion of the stop. Maryland v. Wilson, 519 U.S. 408, 137 L. Ed.
the exception is invoked to justify law enforcement intrusion into a home. State 2d 41 (1997).
v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785 N.W.2d 592, 08−1204. Persons observed through a window in a home where they were not overnight
In light of Gant v. Arizona, 556 U.S. ___, the broad rule adopted in Fry, 131 Wis. guests but were present for a short period to engage in a primarily commercial ille-
2d 153, is no longer good law. Belton does not authorize a vehicle search incident gal drug transaction, had no expectation of privacy in the home and the observation
to a recent occupant’s arrest after the arrestee has been secured and cannot access of those persons was not a constitutionally prohibited search. Minnesota v. Carter,
the interior of the vehicle. State v. Bauer, 2010 WI App 93, 327 Wis. 2d 765, 787 525 U.S. 83, 142 L. Ed. 2d 373 (1998).
N.W.2d 412, 09−1367. The issuance of a traffic citation without an arrest did not authorize a full search
Police cannot conduct warrantless searches pursuant to a probation apprehen- of the vehicle. Knowles v. Iowa, 525 U.S. 113, 142 L. Ed. 2d 492 (1998).
sion request. Warrantless searches conducted by police, as opposed to probation When there is probable cause to search a vehicle for contraband officers may
agents, are prohibited. State v. Bauer, 2010 WI App 93, 327 Wis. 2d 765, 787 examine containers in the vehicle without a showing of individualized probable
N.W.2d 412, 09−1367. cause for each container. The container may be searched whether or not it’s owner
A “knock and talk” interview at a private residence that has lost its consensual is present as a passenger, or otherwise, because it may contain contraband that the
nature and has effectively become an in−home seizure or constructive entry may officers reasonably believe is in the car. Wyoming v. Houghton, 526 U.S. 295, 143
trigger 4th amendment scrutiny. When the situation is such that a person would not L. Ed. 2d 408 (1999).
wish to leave his or her location, such as his or her home, the appropriate inquiry Police need not obtain a warrant before seizing an automobile from a public
is whether a reasonable person would feel free to decline the officers’ requests or place when there is probable cause to believe that the vehicle is forfeitable contra-
otherwise terminate the encounter. City of Sheboygan v. Cesar, 2010 WI App 170, band. Florida v. White, 526 U.S. 559, 143 L. Ed. 2d 748 (1999).
___ Wis. 2d ___, ___ N.W.2d ___, 09−3049. The exception to the requirement of a warrant for automobiles does not require
A warrantless, non−exigent, felony arrest in public was constitutional despite the a separate finding of exigency, in addition to a finding of probable cause. Maryland
opportunity to obtain a warrant. United States v. Watson, 423 U.S. 411. v. Dyson, 527 U.S. 465, 144 L. Ed. 2d 442 (1999).
When a driver was stopped because of expired license plates, a police order to When there is probable cause to search a motor vehicle, the search is not unrea-
get out of the car was reasonable and a subsequent “pat down” based on an observed sonable if the search is based on facts that would justify the issuance of a warrant,
bulge under the driver’s jacket resulted in the legal seizure of an unlicensed although a warrant was not obtained. No separate finding of exigent circumstances
revolver. Pennsylvania v. Mimms, 434 U.S. 106 (1977). is required. Maryland v. Dyson, 527 U.S. 465, 144 L. Ed. 2d 442 (1999).
A burning building clearly presents an exigency rendering a warrantless entry There is no murder scene exception to the warrant requirement. Flippo v. West
reasonable, and fire officials need no warrant to remain in a building for a reason- Virginia, 528 U.S. 11, 145 L. Ed. 2d 16 (1999).
able time to investigate the cause of the fire after it is extinguished. Michigan v. Nervous, evasive behavior is a pertinent factor in determining reasonable suspi-
Tyler, 436 U.S. 499 (1978) cion. Headlong flight is the consummate act of evasion. Illinois v. Wardlow, 528
The warrantless installation of a pen register, that recorded telephone numbers U.S. 119, 145 L. Ed. 2d 570 (2000).
called but not the contents of the calls, did not violate the 4th amendment. Smith An anonymous tip that a person is carrying a gun, without more, is insufficient
v. Maryland, 442 U.S. 735 (1979). to justify a police officer’s stop and frisk of a person. The tip must bear indicia of
reliability. Reasonable suspicion requires that a tip be reliable in its assertion of
A warrantless search of a suitcase in the trunk of a taxi was unconstitutional. criminal activity, not just in its tendency to to identify a person. Florida v. J.L. 529
Arkansas v. Sanders, 442 U.S. 753 (1979). U.S. 266, 146 L. Ed. 2d 254 (2000).
Police may not make a warrantless, nonconsensual entry into a suspect’s home Stopping vehicles at highway checkpoints without any individualized suspicion
in order to make a routine felony arrest. Payton v. New York, 445 U.S. 573 (1980). to interdict illegal drugs was an unreasonable seizure under the 4th amendment
That police had lawful possession of pornographic film boxes did not give them because the primary purpose was to uncover evidence of ordinary criminal wrong-
authority to search their contents. Walter v. United States, 447 U.S. 649 (1980). doing, unlike checkpoints to check for drunk driving or illegal immigrants. City
An officer who accompanied an arrestee to the arrestee’s residence to obtain of Indianapolis v. Edmond, 531 U.S. 32, 148 L. Ed. 2d 333 (2000).
identification properly seized contraband in plain view. Washington v. Chrisman, The police acted reasonably when, with probable cause to believe that the defen-
455 U.S. 1 (1982). dant had hidden drugs in his home, they prevented the man from entering the home
Officers who have legitimately stopped an automobile and who have probable for about 2 hours until a search warrant could be obtained. Illinois v. McArthur,
cause to believe contraband is concealed somewhere within it may conduct a war- 531 U.S. 326, 148 LEd2d 838 (2001).
rantless search of the vehicle as thorough as could be authorized by warrant. United A state hospital could not test maternity patients for cocaine and then turn the
States v. Ross, 456 U.S. 798 (1982). results over to law enforcement authorities without patient consent. The interest
When an officer, after stopping a defendant’s car at a routine driver’s license of using the threat of criminal sanctions to deter pregnant women from using
checkpoint, saw a tied−off party balloon in plain sight, the officer had probable cocaine does not justify a departure from the rule that a nonconsensual search is
cause to believe the balloon contained an illicit substance. Hence, a warrantless unconstitutional if not authorized by a warrant. Ferguson v. City of Charleston, 525
seizure of the balloon was legal. Texas v. Brown, 460 U.S. 730 (1983). U.S. 67, 149 LEd 2d 205 (2001).
A warrantless search by arson investigators of the defendant’s fire−damaged If an officer has probable cause to believe a person has committed even a very
home that was not a continuation of an earlier search was unconstitutional. Michi- minor criminal offense that does not breach the peace, the officer may, without vio-
gan v. Clifford, 464 U.S. 287 (1984). lating the 4th amendment, arrest the offender without the need to balance the cir-
cumstances involved in the particular situation. Atwater v. City of Lago Vista, 532
When a damaged shipping package was examined by company employees who U.S. 318, 149 L. Ed. 2d 549 (2001)
discovered white powder, a subsequent warrantless field test by police was consti- Obtaining, by sense−enhancing technology like infrared imaging, information
tutional. U.S. v. Jacobsen, 466 U.S. 109 (1984). regarding the interior of a home that could otherwise not be obtained without physi-
The “open fields” doctrine is discussed. Oliver v. U.S. 466 U.S. 170 (1984). cal intrusion into a constitutionally protected area is a search presumptively unrea-
The warrantless, nighttime entry of the defendant’s home for arrest for a civil, sonable without a warrant. Kyllo v. U.S. 533 U.S. 27, 150 L. Ed. 2d 94 (2001).
nonjailable traffic offense was not justified under the “hot pursuit” doctrine or the A warrantless search of a probationer’s residence founded on reasonable suspi-
preservation of evidence doctrine. Welsh v. Wisconsin, 466 U.S. 740 (1984). cion of criminal activity and authorized as a condition of probation was reasonable.
School officials need not obtain a warrant before searching a student. The legal- Such a search is not restricted to monitoring whether the probationer is complying
ity of the search depends on the reasonableness, under all circumstances, of the with probation restrictions. U.S. v. Knights, 534 U.S. 112, 151 L. Ed. 2d 497
search. New Jersey v. T. L. O. 469 U.S. 325 (1985). (2001).

Police officers may approach bus riders at random to ask questions and to request amendment would be unconstitutional. Estate of Nottingham, 46 Wis. 2d 580, 175
consent to search luggage without advising the passengers of their right to not coop- N.W.2d 640.
erate. U.S. v. Drayton, 536 U.S. 194, 153 L. Ed. 2d 242 (2002). Although the obligation of a contract is not an absolute right but one that may
A school district policy of requiring all participants in competitive extracurricu- yield to the compelling interest of the public, the public purpose served by a law
lar activities to submit to drug testing was a reasonable means of furthering the dis- mandating rent reductions due to property tax relief is not so vital so as to permit
trict’s interest in preventing drug use among students and was not an unreasonable such an impairment of contract. State ex rel. Bldg. Owners v. Adamany, 64 Wis.
search. Board of Education of Independent School District. No. 92 of Pottawato- 2d 280, 219 N.W.2d 274.
mie County v. White, 536 U.S. 822, 153 L. Ed. 2d 735 (2002). Retroactive application of s. 57.06, 1987 stats. [now s. 304.06], as amended in
A highway checkpoint where police stopped motorists to ask them for informa- 1973, increasing the period to be served by state prison inmates imposed an addi-
tion about a recent hit−and−run was reasonable. The arrest of a drunk driver tional penalty and violated the prohibition against ex post facto legislation. State
arrested when his vehicle swerved nearly hitting an officer at the checkpoint was ex rel. Mueller v. Powers, 64 Wis. 2d 643, 221 N.W.2d 692.
constitutional. Illinois v. Lidster, 540 U.S. 419, 157 L. Ed 2d 843, 124 S. Ct. 885
(2004). The legislative preclusion against the State Medical Society’s divesting itself of
When a police officer has made a lawful custodial arrest of an occupant of an control of ch. 148, disability plans did not constitute any impairment of the soci-
automobile, the 4th amendment allows the officer to search the passenger compart- ety’s charter because: 1) the grant of ch. 148 powers is permissive and voluntarily
ment of that vehicle as a contemporaneous incident of arrest whether the officer exercised by the society; 2) the ch. 148 grant is in the nature of a franchise rather
makes contact with the occupant while the occupant is inside the vehicle, or when than a contract and cannot be viewed as unalterable or it would constitute a delega-
the officer first makes contact with the arrestee after the latter has exited the vehicle. tion of inalienable legislative power; and 3) the constitutional interdiction against
Thornton v. U.S. 541 U.S. 615, 158 L. Ed 2d 905, 124 S. Ct. 2127 (2004). statutes impairing contracts does not prevent the state from exercising its police
The principles of Terry permit a state to require a suspect to disclose his or her powers for the common good. State Medical Society v. Comm. of Insurance, 70
name in the course of a Terry stop and allow imposing criminal penalties for failing Wis. 2d 144, 233 N.W.2d 470.
to do so. Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 542 When a probation statute was amended after a crime was committed but before
U.S. 177, 159 L. Ed 2d 292, 124 S. Ct. 2451 (2004). the accused pled guilty and was placed on probation, application of the amended
The 4th amendment does not requires reasonable, articulable suspicion to justify statute to probation revocation proceedings offended the ex post facto clause. State
using a drug−detection dog to sniff a vehicle during a legitimate traffic stop. The v. White, 97 Wis. 2d 517, 294 N.W.2d 36 (Ct. App. 1979).
use of a well−trained narcotics−detection dog that does not expose noncontraband A challenge to legislation must prove: 1) the legislation impairs an existing con-
items that otherwise would remain hidden from public view during a lawful traffic tractual relationship; 2) the impairment is substantial; and 3) if substantial, the
stop, generally does not implicate legitimate privacy interests. Illinois v. Caballes, impairment is not justified by the purpose of the legislation. Reserve Life Ins. Co.
543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834 (2004). v. La Follette, 108 Wis. 2d 637, 323 N.W.2d 173 (Ct. App. 1982).
Police may enter a home without a warrant when they have an objectively rea- The ex post facto prohibition applies to judicial pronouncements as well as legis-
sonable basis for believing that an occupant is seriously injured or imminently lative acts. The question to be addressed is whether the new law criminalizes con-
threatened with such injury. An action is reasonable under the 4th amendment, duct that was innocent when committed. State v. Kurzawa, 180 Wis. 2d 502, 509
regardless of the individual officer’s state of mind, “as long as the circumstances, N.W.2d 712 (1993).
viewed objectively, justify the action. Brigham City v. Stuart, 547 U.S. 398, 164 Legislation creating penalty enhancers resulting from convictions prior to the
L. Ed. 2d 650, 126 S. Ct. 1943 (2006). effective date does not run afoul of the ex post facto clause. State v. Schuman, 186
The 4th amendment does not prohibit a police officer from conducting a suspi- Wis. 2d 213, 520 N.W.2d 107 (Ct. App. 1994).
cionless search of a parolee. Samson v. California, 547 U.S. 843, 165 L. Ed. 2d 250, An ex post facto law is one that punishes as a crime an act previously committed,
126 S. Ct. 2193 (2006). that: 1) was innocent when done; 2) makes more burdensome the punishment for
Warrantless arrests for crimes committed in the presence of an arresting officer a crime, after its commission; or 3) deprives one charged with a crime of any
are reasonable under the U.S. constitution, and while states are free to regulate such defense available at the time the act was committed. State v. Thiel, 188 Wis. 2d 695,
arrests however they desire, state restrictions do not alter the 4th amendment’s 524 N.W.2d 641 (1994).
protections. Virginia v. Moore, 553 U.S. 164, 128 S. Ct. 1598, 170 L. Ed. 2d 559 Retroactive application of a new statute of limitations, enacted at a time when
(2008). the old limitations period has not yet run, does not violate the ex post facto clause.
In a traffic−stop setting, the first Terry condition — a lawful investigatory stop State v. Haines, 2003 WI 39, 261 Wis. 2d 139, 661 N.W.2d 72, 01−1311.
— is met whenever it is lawful for police to detain an automobile and its occupants Constitutionality of rent control discussed. 62 Atty. Gen. 276.
pending inquiry into a vehicular violation. The police need not have, in addition,
cause to believe any occupant of the vehicle is involved in criminal activity. To jus-
tify a patdown of the driver or a passenger during a traffic stop, however, the police Private property for public use. SECTION 13. The prop-
must harbor reasonable suspicion that the person subjected to the frisk is armed and
dangerous. Arizona v. Johnson, 555 U.S. ___, 129 S. Ct. 781, 172 L. Ed. 2d 694 erty of no person shall be taken for public use without just com-
(2009). pensation therefor.
Belton does not authorize a vehicle search incident to a recent occupant’s arrest The dismissal of an appeal for lack of prosecution in a condemnation action did
after the arrestee has been secured and cannot access the interior of the vehicle. not violate the condemnee’s right to just compensation. Taylor v. State Highway
Police are authorized to search a vehicle incident to a recent occupant’s arrest only Comm. 45 Wis. 2d 490, 173 N.W.2d 707.
when the arrestee is unsecured and within reaching distance of the passenger The total rental loss occasioned by a condemnation is compensable, and a limita-
compartment at the time of the search. Consistent with Thornton, circumstances tion to one year’s loss was invalid. Luber v. Milwaukee County, 47 Wis. 2d 271,
unique to the automobile context justify a search incident to arrest when it is reason- 177 N.W.2d 380.
able to believe that evidence of the offense of arrest might be found in the vehicle.
Arizona v. Gant, 556 U.S. ___, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). A prohibition against filling in wetlands pursuant to an ordinance adopted under
The New Jersey v. T. L. O. concern to limit a school search to a reasonable scope ss. 59.971 and 144.26 [now ss. 59.692 and 281.31] does not amount to a taking of
requires reasonable suspicion of danger or a resort to hiding evidence of wrongdo- property. Police powers and eminent domain are compared. Just v. Marinette
ing in underwear before a searcher can reasonably make the quantum leap from a County, 56 Wis. 2d 7, 201 N.W.2d 761.
search of outer clothes and backpacks to exposure of intimate parts. The meaning A special assessment against a railroad for a sanitary sewer laid along the rail-
of such a search, and the degradation its subject may reasonably feel, place a search road’s right−of−way, admittedly of no immediate use or benefit to the railroad, did
that intrusive in a category of its own demanding its own specific suspicions. Saf- not constitute a violation of this section. Soo Line RR. Co v. Neenah, 64 Wis. 2d
ford Unified School District #1 v. Redding, 557 U.S. ___, 129 S. Ct. 2633, 174 L. 665, 221 N.W.2d 907.
Ed. 2d 354 (2009). In order for the petitioner to succeed in the initial stages of an inverse condemna-
A government employer had the right, under the circumstances of the case, to tion proceeding, it must allege facts that, prima facie at least, show there has been
read text messages sent and received on a pager the employer owned and issued to either an occupation of its property under s. 32.10, or a taking, which must be com-
an employee. The privacy of the messages was not protected by the ban on “unrea- pensated under the constitution. Howell Plaza, Inc. v. State Highway Comm. 66
sonable searches and seizures” found in the 4th amendment. Because the search Wis. 2d 720, 226 N.W.2d 185.
was motivated by a legitimate work related purpose, and because it was not exces- The owners of private wells ordered by the department of natural resources to
sive in scope, the search was reasonable. Ontario v. Quon, 560 U.S. ___, 130 S. seal them because of bacteriological danger are not entitled to compensation
Ct. 2366; 176 L. Ed. 2d 560 (2010). because such orders are a proper exercise of the state’s police power to prevent a
Within the meaning of the 4th amendment, domestic animals are effects and the public harm, for which compensation is not required. Village of Sussex v. Dept.
killing of a companion dog constitutes a seizure, which is constitutional only if rea- of Natural Resources, 68 Wis. 2d 187, 228 N.W.2d 173.
sonable. Viilo v. Eyre, 547 F.3d 707 (2008). There must be a “taking” of property to justify compensation. DeBruin v. Green
State v. Seibel: Wisconsin Police Now Need Only a Reasonable Suspicion to County, 72 Wis. 2d 464, 241 N.W.2d 167.
Search a Suspect’s Blood Incident to an Arrest. Armstrong. 1993 WLR 563. Condemnation powers are discussed. Falkner v. Northern States Power Co. 75
But What of Wisconsin’s Exclusionary Rule? The Wisconsin Supreme Court Wis. 2d 116, 248 N.W.2d 885.
Accepts Apparent Authority to Consent as Grounds for Warrantless Searches. Ordering a utility to place its power lines under ground in order to expand an air-
Schmidt. 83 MLR 299. port constituted a taking because the public benefited from the enlarged airport.
But What of Wisconsin’s Exclusionary Rule? The Wisconsin Supreme Court Public Service Corp. v. Marathon County, 75 Wis. 2d 442, 249 N.W.2d 543.
Accepts Apparent Authority to Consent as Grounds for Warrantless Searches.
Schmidt. 83 MLR 299 (1999). For inverse condemnation purposes, a taking can occur absent a physical inva-
sion only when there is a legally imposed restriction upon the property’s use.
Howell Plaza, Inc. v. State Highway Comm. 92 Wis. 2d 74, 284 N.W.2d 887 (1979).
Attainder; ex post facto; contracts. SECTION 12. No bill The doctrine of sovereign immunity cannot bar an action for just compensation
of attainder, ex post facto law, nor any law impairing the obliga- based on the taking of private property for public use even though the legislature
has failed to establish specific provisions for recovery of just compensation. Zinn
tion of contracts, shall ever be passed, and no conviction shall v. State, 112 Wis. 2d 417, 334 N.W.2d 67 (1983).
work corruption of blood or forfeiture of estate. Zoning classifications may unconstitutionally deprive property owners of due
Section 45.37 (9), Stats. 1963, constituted a contract as to the property an appli- process of law. State ex rel. Nagawicka Is. Corp. v. Delafield, 117 Wis. 2d 23, 343
cant for admission to the Grand Army Home had to surrender, and to apply a later N.W.2d 816 (Ct. App. 1983).

Ordering a riparian owner to excavate and maintain a ditch to regulate a lake Seizure of private property in a forfeiture action under a warrant issued at an ex
level was an unconstitutional taking of property. Otte v. DNR, 142 Wis. 2d 222, parte hearing to establish probable cause that a crime subjecting the property to for-
418 N.W.2d 16 (Ct. App. 1987). feiture was committed, while possibly satisfying the prohibition against unreason-
The operation of this section is discussed. W.H. Pugh Coal Co. 157 Wis. 2d 620, able searches and seizures, was a taking of property without due process. United
460 N.W.2d 787 (Ct. App. 1990). States v. Good Real Estate, 510 U.S. 43, 126 L. Ed. 2d 490 (1993).
A taking by government restriction occurs only if the restriction deprives the A municipality requiring the dedication of private property for some future pub-
owner of all or practically all use of property. Busse v. Dane County Regional Plan- lic use as a condition of obtaining a building permit must meet a “rough proportion-
ning Comm. 181 Wis. 2d 527, 510 N.W.2d 136 (Ct. App. 1993). ality” test showing it made some individualized determination that the dedication
A taking claim is not ripe for judicial review until the government agency is related in nature and extent to the proposed development. Dolan v. City of
Tigard, 512 U.S. 374, 129 L. Ed. 2d 304 (1994).
charged with implementing applicable regulations has made a final decision apply-
A taking claim is not barred by the mere fact that title to the property was
ing the regulations to the property at issue. Taking claims based on equal protection
acquired after the effective date of a state−imposed land use restriction. Palazzolo
or due process grounds must meet the ripeness requirement. Streff v. Town of Dela- v. Rhode Island, 533 U.S. 606, 150 L. Ed. 2d 592 (2001).
field, 190 Wis. 2d 348, 526 N.W.2d 822 (Ct. App. 1994). A temporary moratorium on development imposed during the development of
Damage to property is not compensated as a taking. For flooding to be a taking a comprehensive plan did not constitute a per se taking. Compensation is required
it must constitute a permanent physical occupation of property. Menick v. City of when a regulation denies an owner all economically beneficial use of land. An
Menasha, 200 Wis. 2d 737, 547 N.W.2d 778 (Ct. App. 1996), 95−0185. interest in property consists of the metes and bounds of the property and the term
A constructive taking occurs when government regulation renders a property of years that describes the owner’s interest. Both dimensions must be considered
useless for all practical purposes. Taking jurisprudence does not allow dividing the in determining whether a taking occurred. A fee simple interest cannot be rendered
property into segments and determining whether rights in a particular segment have valueless by a temporary prohibition on use. Tahoe−Sierra Preservation Council,
been abrogated. Zealy v. City of Waukesha, 201 Wis. 2d 365, 548 N.W.2d 528 Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 152 L. Ed. 2d. 517 (2002).
(1996), 93−2381. Regulatory takings jurisprudence aims to identify regulatory actions that are
Section 32.10 does not govern inverse condemnation proceedings seeking just functionally equivalent to classic takings in which government directly appropri-
compensation for a temporary taking of land for public use. Such takings claims ates private property or ousts the owner from his or her domain. Each applicable
are based directly on this section. Anderson v. Village of Little Chute, 201 Wis. 2d test focuses upon the severity of the burden that government imposes upon private
467, 549 N.W.2d 561 (Ct. App. 1996), 95−1677. property rights. In this case lower courts struck down a rent control statute applica-
The mandate of just compensation cannot be limited by statute or barred by sov- ble to company owned gas stations as an unconstitutional regulatory taking based
ereign immunity. Just compensation is not measured by the economic benefit to solely upon a finding that it did not substantially advance the state’s asserted inter-
the state resulting from the taking, but by the property owner’s loss. Just compensa- est in controlling retail gasoline prices. The “substantially advances” test pre-
tion is for property presently taken and necessarily means the property’s present scribes an inquiry in the nature of a due process, not a takings, test that has no proper
value presently paid, not its present value to be paid at some future time without place in takings jurisprudence. Lingle v. Chevron U.S.A. Inc. 544 U.S. 528, 161
L. Ed. 2d 876, 125 S. Ct. 2074 (2005).
interest. Retired Teachers Association v. Employee Trust Funds Board, 207 Wis.
The State may transfer property from one private party to another if there is a
2d 1, 558 N.W.2d 83 (1997), 94−0712. public purpose for the taking. Without exception, cases have defined the concept
When the state’s constitution and statutes are silent as to the distribution of of public purpose broadly, reflecting a longstanding policy of deference to legisla-
excess proceeds received when a tax lien is foreclosed on and the property is subse- tive judgments in this field. It would be incongruous to hold that a city’s interest
quently sold by the municipality, the municipality may constitutionally retain the in the economic benefits to be derived from the development of an area has less of
proceeds as long as there has been notice sufficient to meet due process require- a public character than any other public interests. Clearly, there is no basis for
ments. Due process does not require that notices state that should the tax lien be exempting economic development from the traditionally broad understanding of
foreclosed and the property sold the municipality may retain all the proceeds. Ritter public purpose. Kelo v. New London, 545 U.S. 162 L. Ed. 2d 439, 125 S. Ct. 2655
v. Ross, 207 Wis. 2d 476, 558 N.W.2d 909 (Ct. App. 1996), 95−1941. (2005).
The reversal of an agency decision by a court does not convert an action that Under Wisconsin eminent domain law, courts apply the unit rule, which prohib-
might have otherwise been actionable as a taking into one that is not. Once there its valuing individual property interests or aspects separately from the property as
has been sufficient deprivation of use of property, there has been a taking even a whole. When a parcel of land is taken by eminent domain, the compensation
though the property owner regains full use of the land through rescission of the award is for the land itself, not the sum of the different interests therein. Hoekstra
restriction. Eberle v. Dane County Board of Adjustment, 227 Wis. 2d 609, 595 v. Guardian Pipeline, LLC, 2006 WI App 245, 298 Wis. 2d 165, 726 N.W.2d 648,
N.W.2d 730 (1999), 97−2869. 03−2809.
When a regulatory taking claim is made, the plaintiff must prove: 1) a govern- Fair market value is not an absolute standard nor an exclusive method of valua-
ment restriction or regulation is excessive and therefore constitutes a taking; and tion. The question is, “what has the owner lost?” not, “what has the taker gained?”
2) any proffered compensation is unjust. Eberle v. Dane County Board of Adjust- When the taker gained, according to the jury, a building that was worthless, but the
ment, 227 Wis. 2d 609, 595 N.W.2d 730 (1999), 97−2869. jury was not allowed to consider the value of the lessee’s leasehold because of the
A condemnation of property for a highway that was never built because an alter- unit rule, the result to the lessee was inequitable, violated basic principles of fair-
native route was found constituted a temporary taking entitling the owner to com- ness, and was unconstitutional. City of Milwaukee Post No. 2874 v. Redevelop-
pensation, but not to attorney fees as there is no authority to award fees for an action ment Authority of the City of Milwaukee, 2008 WI App 24, 307 Wis. 2d 518, 746
brought directly under this section. Stelpflug v. Town of Waukesha, 2000 WI 81, N.W.2d 536, 06−2866.
236 Wis. 2d 275, 612 N.W.2d 700, 97−3078. Consequential damages to property resulting from governmental action are not
A claimant who asserted ownership of condemned land, compensation for which compensable under Article I, Section 13 or the takings clause of the 5th amend-
was awarded to another as owner with the claimant having had full notice of the ment. Here, the government did not physically occupy the plaintiff’s property or
proceedings, could not institute an inverse condemnation action because the use it in connection with the project in question, and the public obtained no benefit
municipality had exercised its power of condemnation. Koskey v. Town of Bergen, from the damaged property. Rather, the property was damaged as a result of alleged
2000 WI App 140, 237 Wis. 2d 284, 614 N.W.2d 845, 99−2192. negligent construction. Accordingly, there was only damage, without appropria-
A property owner who acquires property knowing that permits are required for tion to the public purpose. Such damage is not recoverable in a takings claim but
development cannot presume that the permits will be granted and assumes the risk instead sounds in tort. E−L Enterprises, Inc. v. Milwaukee Metropolitan Sewerage
of loss in the event of denial. R.W. Docks & Slips v. State, 2000 WI App 183, 238 District, 2010 WI 58, 326 Wis. 2d 82, 785 N.W.2d 409, 08−0921.
Wis. 2d 182, 617 N.W.2d 519, 99−2904. The backing of water so as to overflow the lands of an individual, or any other
The lessor under a long−term favorable lease who received no compensation for superinduced addition of water, earth, sand, or other material, if done under statutes
its leasehold interest under the unit rule when the fair market value of the entire authorizing it for the public benefit, is a taking within the meaning of Art. I, sec.
property was determined to be zero was not denied the right to just compensation. 13. Pumpelly v. Green Bay and Miss. Canal Co. 13 Wall. (U.S.) 166.
City of Milwaukee VFW Post No. 2874 v. Redevelopment Authority of the City Compensation for lost rents. 1971 WLR 657.
of Milwaukee, 2009 WI 84, 319 Wis. 2d 553, 768 N.W.2d 749, 06−2866.
Article I, Section 13 protects a wide variety of property interests recognized by
state law. Contract rights are not the sine qua non for a property interest in a state Feudal tenures; leases; alienation. SECTION 14. All
fund. Property interests arise from a much broader set of factors than contract lands within the state are declared to be allodial, and feudal ten-
rights. A contractual relationship is a source of property interests, and that principle ures are prohibited. Leases and grants of agricultural land for a
remains sound, but case law recognizes a broader scope of participant interests.
These interests derive directly from statutory language and from the nature and pur- longer term than fifteen years in which rent or service of any
pose of the trust created by statute. Wisconsin Medical Society v. Morgan, 2010 kind shall be reserved, and all fines and like restraints upon
WI 94, 328 Wis. 2d 469, 787 N.W.2d 22, 09−0728. alienation reserved in any grant of land, hereafter made, are
Health care providers have a constitutionally protected property interest in the
injured patients and families compensation fund under s. 655.27, which defines the declared to be void.
fund as an irrevocable trust, and the structure and purpose of which satisfy all the
elements necessary to establish a formal trust. Because the health care providers
are specifically named as beneficiaries of the trust, they have equitable title to the Equal property rights for aliens and citizens. SECTION
assets of the fund. The transfer of $200 million from the fund to another fund was 15. No distinction shall ever be made by law between resident
an unconstitutional taking of private property without just compensation. Wiscon- aliens and citizens, in reference to the possession, enjoyment or
sin Medical Society v. Morgan, 2010 WI 94, 328 Wis. 2d 469, 787 N.W.2d 22,
09−0728. descent of property.
A New York law that a landlord must permit a cable television company to install
cable facilities upon property was a compensable taking. Loretto v. Teleprompter Imprisonment for debt. SECTION 16. No person shall be
Manhattan CATV Corp. 458 U.S. 419 (1982).
State land use regulation preventing beachfront development that rendered an
imprisoned for debt arising out of or founded on a contract,
owner’s land valueless constituted a taking. When a regulation foreclosing all pro- expressed or implied.
ductive economic use of land goes beyond what “relevant background principals,” Section 943.20 (1) (e), which criminalizes the failure to return rented personal
such as nuisance law, would dictate, compensation must be paid. Lucas v. S. Caro- property, does not unconstitutionally imprison one for debt. State v. Roth, 115 Wis.
lina Coastal Council, 505 U.S. 1003, 120 L. Ed. 2d 798 (1992). 2d 163, 339 N.W.2d 807 (Ct. App. 1983).

This section only prohibits imprisonment for debt arising out of or founded upon tion of a position as ministerial or ecclesiastical does not control its status. Jocz v.
a contract. A court imposed support order is not a debt on a contract and prosecu- LIRC, 196 Wis. 2d 273, 538 N.W.2d 588 (Ct. App. 1995), 93−3042.
tion and incarceration for criminal nonsupport does not violate this section. State Freedom of conscience as guaranteed by the Wisconsin constitution is not
v. Lenz, 230 Wis. 2d 529, 602 N.W.2d 172 (Ct. App. 1999), 99−0860. constrained by the boundaries of protection set by the U.S. Supreme Court for the
federal provision. As applied to Amish, requiring slow moving vehicle signs on
Exemption of property of debtors. SECTION 17. The buggies unconstitutionally infringed on religious liberties. Requiring Amish bug-
gies to carry slow moving vehicle signs furthered a compelling state interest, but
privilege of the debtor to enjoy the necessary comforts of life was not shown to be the least restrictive means of accomplishing that interest. State
shall be recognized by wholesome laws, exempting a reasonable v. Miller, 202 Wis. 2d 56, 549 N.W.2d 235 (1996), 94−0159.
amount of property from seizure or sale for the payment of any The role courts may play in church property disputes is limited, but a court may
adopt one of several approaches so long as the court does not entangle itself in doc-
debt or liability hereafter contracted. trinal affairs. Church doctrine may be examined from a secular perspective, but
courts may not interpret church law, policies, or practice. United Methodist
Church, Inc. v. Culver, 2000 WI App 132, 237 Wis. 2d 343, 614 N.W.2d 523,
Freedom of worship; liberty of conscience; state 99−1522.
religion; public funds. SECTION 18. [As amended Nov. 1982] While this article is more specific and terser than the clauses of the 1st amend-
The right of every person to worship Almighty God according ment, it carries the same import. Both provisions are intended and operate to serve
the purposes of prohibiting the establishment of religion and protecting the free
to the dictates of conscience shall never be infringed; nor shall exercise of religion. Jackson v. Benson, 218 Wis. 2d 835, 578 N.W.2d 602 (1998),
any person be compelled to attend, erect or support any place of 97−0270.
worship, or to maintain any ministry, without consent; nor shall To succeed in a constitutional challenge to a local fire prevention code, the com-
plaining church had the initial burden of proving that there was a sincerely held
any control of, or interference with, the rights of conscience be religious belief that would be burdened by the application of the code. The church
permitted, or any preference be given by law to any religious failed to carry this burden because it did not present evidence of any basic tenet,
establishments or modes of worship; nor shall any money be principle, or dogma supporting representations that an exposed sprinkler system
would desecrate the worship space. Peace Lutheran Church and Academy v. Vil-
drawn from the treasury for the benefit of religious societies, or lage of Sussex, 2001 WI App 139, 246 Wis. 2d 502, 631 N.W.2d 229, 00−2328.
religious or theological seminaries. [1979 J.R. 36, 1981 J.R. 29, The Wisconsin Constitution offers more expansive protections for freedom of
vote Nov. 1982] conscience than those offered by the 1st amendment. When an individual makes
a claim that state law violates his or her freedom of conscience, courts apply the
A statute authorizing a contract requiring the state to pay an amount to a Catholic compelling state interest/least restrictive alternative test, requiring the challenger
university for the education of dental students violated the establishment clause by to prove that he or she has a sincerely held religious belief that is burdened by
permitting the use of funds paid by the state to be used in support of the operating application of the state law at issue. Upon such a showing, the burden shifts to the
costs of the university generally and violated the free exercise clause by requiring state to prove that the law is based in a compelling state interest that cannot be
regulations as to management and hiring by the university that were not restricted served by a less restrictive alternative. Noesen v. Department of Regulation and
to the dental school. Warren v. Nusbaum, 55 Wis. 2d 316, 198 N.W.2d 650. Licensing, 2008 WI App 52, 311 Wis. 2d 237, 751 N.W.2d 385, 06−1110.
It is outside the province of a civil court to review the merits of a determination The free exercise clause of the 1st amendment protects not only the right to free-
of a duly authorized ecclesiastical tribunal that has adhered to prescribed canonical dom in what one believes, but extends (with limitations) to acting on those beliefs.
procedure and that results in terminating a clergyman’s relationship with his Both individuals and communities of individuals have a right to the freedom of
church. Olston v. Hallock, 55 Wis. 2d 687, 201 N.W.2d 35. religion. Courts have adopted a “ministerial exception” that protects houses of
This section is not violated by s. 118.155, which accommodates rather than worship from state interference with the decision of who will teach and lead a con-
restricts the right of students to religious instruction, does not compel any student gregation. Ordination is not required to be considered “ministerial.” The function
to participate in religious training, and does not involve the use or expenditure of of the position, as determined by whether the position is important to the spiritual
public funds, especially when the electorate approved an amendment to art. X, sec. and pastoral mission of the church and not whether religious tasks encompass the
3, specifically authorizing enactment of a released time statute. State ex rel. Holt largest share of the position, is the primary consideration. Coulee Catholic Schools
v. Thompson, 66 Wis. 2d 659, 225 N.W.2d 678. v. LIRC, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868, 07−0496.
For purposes of 121.51 (4), 1981 stats. [now s. 121.51 (1)], and in the absence The constitutionality of state tuition grants to parents of resident pupils enrolled
of fraud or collusion, when a religious school demonstrates by its corporate charter in private elementary or high schools is discussed. 58 Atty. Gen. 163.
and bylaws that it is independent of, and unaffiliated with, a religious denomina- Guidelines to possibly avoid constitutional objection to CESA service contracts
tion, further inquiry by the state would violate Art. I, sec. 18. Holy Trinity Commu- with private schools are discussed. 62 Atty. Gen. 75.
nity School v. Kahl, 82 Wis. 2d 139, 262 N.W.2d 210.
Leasing of university buildings to a religious congregation during nonschool
Refusal on religious grounds to send children to school was held to be a personal, days and hours on a temporary basis while the congregation’s existing facility is
philosophical choice by parents, rather than a protected religious expression. State being renovated and leasing convention space to a church conference would not
v. Kasuboski, 87 Wis. 2d 407, 275 N.W.2d 101 (Ct. App. 1978). violate separation of church and state provisions of the 1st amendment. 63 Atty.
The primary effect of health facilities authority under ch. 231, which fiances Gen. 374.
improvements for private, nonprofit health facilities, does not advance religion, nor The department of public instruction may, if so authorized under 16.54, imple-
does the chapter foster excessive entanglement between church and state. State ex ment the school lunch program and special food service plan for children in secular
rel. Wis. Health Fac. Auth. v. Lindner, 91 Wis. 2d 145, 280 N.W.2d 773 (1979). and sectarian private schools and child−care institutions without violating the U.S.
Meals served by a religious order, in carrying out their religious work, were not, or Wisconsin constitutions. 63 Atty. Gen. 473.
under the circumstances, subject to Wisconsin sales tax for that portion of charges Funds received under Title I of the Elementary and Secondary Education Act
made to guests for lodging, food, and use of order’s facilities. Kollasch v. Ada- may not be used to pay salaries of public school teachers teaching in church affili-
many, 104 Wis. 2d 552, 313 N.W.2d 47 (1981). ated private schools. See 64 Atty. Gen. 139. 64 Atty. Gen. 136.
The state equal rights division did not violate the free exercise clause by investi- The establishment clause and this section prohibit public schools leasing class-
gating a discrimination complaint brought by an employee of a religious school. rooms from parochial schools to provide educational programs for parochial stu-
Sacred Heart School Board, 157 Wis. 2d 638, 460 N.W.2d 430 (Ct. App 1990). dents. 67 Atty. Gen. 283.
The test to determine whether governmental aid offends the establishment clause A group of churches is entitled to a permit under s. 16.845 to use the capitol
is discussed. Freedom from Religion Foundation v. Thompson, 164 Wis. 2d 736, grounds for a civic or social activity even if the content of the program is partly
476 N.W.2d 318 (Ct. App. 1991). religious in nature. 68 Atty. Gen. 217.
The free exercise clause does not excuse a person from compliance with a valid The U.S. and state constitutions do not prohibit the state from disbursing state
law. A visitation order intended to prevent a noncustodial parent from imposing
matching funds under the National School Lunch Act to private, as well as, public
his religion on his children was a reasonable protection of the custodial parent’s
schools. 69 Atty. Gen. 109.
statutory right to choose the children’s religion. Lange v. Lange, 175 Wis. 2d 373,
N.W.2d (Ct. App. 1993). The state can constitutionally license and regulate community based residential
In setting a sentence, a court may consider a defendant’s religious beliefs and facilities that are operated by religious organizations and are not convents, monas-
practices only if a reliable nexus exists between the defendant’s criminal conduct teries, or similar facilities exempted by statute. 71 Atty. Gen. 112.
and those beliefs and practices. State v. Fuerst, 181 Wis. 2d 903, 512 N.W.2d 243 University of Wisconsin athletes may not engage in voluntary prayer led by a
(Ct. App. 1994). coach prior to an athletic event, although silent meditation or prayer organized by
A nativity scene surrounded by Christmas trees and accompanied by a sign pro- athletes may be undertaken within certain guidelines. 75 Atty. Gen. 81.
claiming a “salute to liberty” did not violate the 1st amendment’s establishment and The scope of this section is discussed. 75 Atty. Gen. 251 (1986).
free exercise clauses or Art. I, s.18. King v. Village of Waunakee, 185 Wis. 2d 25, The establishment clause prohibits states from loaning instructional material to
517 N.W.2d 671 (1994). sectarian schools or providing auxiliary services to remedial and exceptional stu-
Probation conditions may impinge on religious rights as long as the conditions dents in such schools. Meek v. Pittenger, 421 U.S. 349.
are not overly broad and are reasonably related to rehabilitation. Von Arx v. In adjudicating a church property dispute, the state may adopt a “neutral prin-
Schwarz, 185 Wis. 2d 645, 517 N.W.2d 540 (Ct. App. 1994). ciples of law” analysis regarding deeds, applicable statutes, local church charters,
The courts are prevented from determining what makes one competent to serve and general church constitutions. Jones v. Walf, 443 U.S. 595 (1979).
as a priest. As such, the courts cannot decide a claim of negligent hiring or retention A statute does not contravene the establishment clause if it has a secular legisla-
by a church. Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 303, 533 N.W.2d tive purpose, its primary effect neither advances nor inhibits religion, and it does
780 (1995). See also L.L.N. v. Clauder, 209 Wis. 2d 674, 563 N.W.2d 434 (1997), not excessively entangle government with religion. Committee for Public Educa-
95−2084. tion v. Regan, 444 U.S. 646 (1980).
The state is prevented from enforcing discrimination laws against religious asso- The representation of the Ten Commandments as the basis for the legal code of
ciations when the employment at issue serves a ministerial or ecclesiastical func- western civilization violated the establishment clause. Stone v. Graham, 449 U.S.
tion. While it must be given considerable weight, a religious association’s designa- 39 (1980).

The denial of unemployment compensation to a Jehovah’s Witness who quit a A public library that allowed a wide range of uses of its meeting room by non−
job due to religious beliefs was a violation of free exercise rights. Thomas v. profit groups violated the 1st amendment by excluding the use of the room for
Review Bd., Ind. Empl. Sec. Div. 450 U.S. 707 (1981). religious services or instruction. Pfeifer v. City of West Allis, 91 F. Supp. 2d 1253
A state fair rule that limited a religious group to an assigned booth in conducting (2000).
its religious activities did not violate the free exercise clause. Heffron v. Int’l Soc. Grants to a faith−based counseling organization that integrated religion into its
for Krishna Consc. 452 U.S. 640 (1981). counseling program were unconstitutional when there were insufficient safeguards
A public university that provided a forum to many student groups but excluded in place to insure that public funding did not contribute to a religious end. Freedom
religious student groups violated the principle that state regulation of speech should From Religion Foundation v. McCallum, 179 F. Supp. 2d 950 (2002).
be content neutral. Widmar v. Vincent, 454 U.S. 263 (1981). Excluding a religious charitable organization from participation in the Wiscon-
A nativity scene displayed by a city did not violate the establishment clause. sin State Employees Combined Campaign solely because that organization dis-
Lynch v. Donnelly, 465 U.S. 668 (1984). criminates on the basis of religion or creed in choosing its governing board and
employees is constitutionally impermissible. Association of Faith−Based Organi-
Due to the setting and nature of the display, a menorah placed next to a Christmas zations, 454 F. Supp. 812 (2006).
tree placed outside of a city−county building did not violate the establishment
clause while prominent placement of a creche inside a courthouse did. Allegheny Nyquist and public aid to private education. Piekarski, 58 MLR 247.
County v. Pittsburgh ACLU, 492 U.S. 573, 106 L. Ed. 2d 472 (1989). The role of civil courts in church disputes. 1977 WLR 904.
The prohibition of peyote used in a religious ceremony does not violate the free First amendment−based attacks on Wisconsin “attendance area” statutes. 1980
exercise of religion. Employment Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d WLR 409.
876 (1990). Brave new world revisited: Fifteen years of chemical sacraments. 1980 WLR
The federal Equal Access Act prohibits high schools from barring student 879.
religious club meetings on school premises when other “noncurriculum−related” Lamb’s Chapel v. Center Moriches Union Free School District: Creating Greater
clubs are allowed access. Westside Community Schools v. Mergens, 496 U.S. 292, Protection Religious Speech Through the Illusion of Public Forum Analysis. Ehr-
110 L. Ed. 2d 191 (1990). mann. 1994 WLR 965.
A public school district’s inclusion of prayers at a public graduation ceremony, King v. Village of Waunakee: Redefining Establishment Clause Jurisprudence
offered by a member of the clergy at the district’s request and direction, violated in Wisconsin. Lanford. 1996 WLR 185.
the establishment clause. Lee v. Weisman, 505 U.S. 77, 120 L. Ed. 2d 467 (1992). How Vast is King’s Realm? Constitutional Challenge to the Church−State
The denial of the use of a school building to a church seeking to exhibit a film Clause. Gordon. Wis. Law. Aug. 1995.
when a nonsectarian group would have been allowed the use of the building to show
a secular film on the same topic violated the right to free speech. Lamb’s Chapel Religious tests prohibited. SECTION 19. No religious
v. Center Moriches, 508 U.S. 384, 124 L. Ed. 2d 352 (1993).
A law that targets religious conduct for distinctive treatment is subject to the tests shall ever be required as a qualification for any office of
most rigorous scrutiny. The regulation of animal sacrifice that effectively prohib- public trust under the state, and no person shall be rendered
ited the practices of one sect was void. Church of Lukumi v. Hialeah, 508 U.S. 520, incompetent to give evidence in any court of law or equity in
124 L. Ed. 2d 472 (1993).
The provision of an interpreter by a school district to a student attending a paro-
consequence of his opinions on the subject of religion.
chial school was permissible when provided as a part of a neutral program benefit-
ting all qualified children without regard to the sectarian−nonsectarian nature of the Military subordinate to civil power. SECTION 20. The
school. Zobrest v. Catalina Foothills, 509 U.S. 1, 125 L. Ed. 2d 1 (1993).
Special legislation creating a public school district for a village consisting solely
military shall be in strict subordination to the civil power.
of members of a single religious community violated the establishment clause.
Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687, 129 L. Ed. 2d 546 Rights of suitors. SECTION 21. [As amended April 1977]
(1994).
(1) Writs of error shall never be prohibited, and shall be issued
A state university that funded the printing of a broad range of student publica-
tions but denied funding for printing the publication of a student religious group by such courts as the legislature designates by law.
violated free speech guarantees and was not excused by the need to comply with (2) In any court of this state, any suitor may prosecute or
the establishment clause. Rosenberger v. University of Virginia, 515 U.S. 819, 132
L. Ed. 2d (1995). defend his suit either in his own proper person or by an attorney
A school district policy permitting student−led, student−initiated prayer at of the suitor’s choice. [1975 J.R. 13, 1977 J.R. 7, vote April
school football games violated the establishment clause of the 1st amendment 1977]
because it had the purpose and created the perception of encouraging the delivery
of prayer at important high school events. Santa Fe Independent School District Every person has an absolute right to appear pro se. Hlavinka v. Blunt, Ellis &
v. Doe, 530 U.S. 290, 147 L. Ed. 2d 295 (2000). Loewi, Inc. 174 Wis. 2d 381, N.W.2d (Ct. App. 1993).
Speech discussing otherwise permissible subjects cannot be excluded from a A nonlawyer may not sign and file a notice of appeal on behalf of a corporation.
limited public forum, such as a school, on the grounds that it is discussed from a Requiring a lawyer to represent a corporation in filing the notice does not violate
religious viewpoint. A club’s meetings, held after school, not sponsored by the the guarantee that any suitor may prosecute or defend a suit personally. A corpora-
school, and open to to any student who obtained parental consent, did not raise an tion is not a natural person and does not fall with in the term “any suitor.” Jadair
establishment of religion violation that could be raised to justify content−based dis- Inc. v. United States Fire Insurance Co. 209 Wis. 2d 187, 561 N.W.2d 718 (1997),
crimination against the club. Good News Club v. Milford Central School, 533 U.S. 95−1946.
98, 150 L. Ed. 2d 151 (2001). Sub. (2) gives the right in a civil trial to chose whether to defend oneself person-
The Cleveland, Ohio school choice program that provides tuition aid to parents ally or to have an attorney, but does not address whether the party may, or may not,
who may use the money to pay tuition to private, religious schools does not violate be ordered to be physically present at trial when represented. City of Sun Prairie
the establishment clause. When an aid program is neutral with respect to religion v. Davis, 217 Wis. 2d 268, 575 N.W.2d 268 (Ct. App. 1998), 97−1651.
and provides assistance to a broad class of citizens who, in turn, direct the aid to If a telephone warrant application has not been recorded and there is no evidence
religious schools through individual choice, the program is not subject to chal- of intentional or reckless misconduct on the part of law enforcement officers, a
lenge. Zelman v. Simmons−Harris, 536 U.S. 639, 153 L. Ed. 2d 604 (2002). reconstructed application may serve as an equivalent of the record of the original
The state of Washington, under its constitution, which prohibits even indirect application and can protect the defendant’s right to a meaningful appeal. State v.
funding of religious instruction that will prepare students for the ministry, could Raflik, 2001 WI 129, 248 Wis. 2d 593, 636 N.W.2d 129, 00−1086.
deny such students funding available to all other students without violating the free
exercise clause of the 1st amendment. Locke v. Davey, 540 U.S. 712, 158 L. Ed Maintenance of free government. SECTION 22. The
2d 1, 124 S. Ct. 1307 (2004).
A legislative mandate requiring reasonable accommodation of religious conduct
blessings of a free government can only be maintained by a firm
does not violate establishment clause. Nottelson v. Smith Steel Wkrs. D.A.L.U. adherence to justice, moderation, temperance, frugality and vir-
19806, 643 F.2d 445 (1981). tue, and by frequent recurrence to fundamental principles.
The Establishment Clause of the 1st amendment allows display of a monument
inscribed with the Ten Commandments on the Texas State Capitol grounds. Van
Orden v. Perry, 545 U.S. 677, 162 L. Ed. 2d 607, 125 S. Ct. 2854 (2005). Transportation of school children. SECTION 23. [As
A display of the Ten Commandments in a county courthouse violated the Estab- created April 1967] Nothing in this constitution shall prohibit
lishment Clause of the 1st amendment. The government agency’s manifest objec-
tive in presenting the display may be dispositive of the constitutional enquiry, and the legislature from providing for the safety and welfare of chil-
the development of the presentation should be considered when determining its dren by providing for the transportation of children to and from
purpose. Governmental purpose needs to be taken seriously under the Establish- any parochial or private school or institution of learning. [1965
ment Clause and to be understood in light of context; an implausible claim that gov-
ernmental purpose has changed should not carry the day in a court of law any more J.R. 46, 1967 J.R. 13, vote April 1967]
than in a head with common sense. McCreary County v. American Civil Liberties Elementary Secondary Education Act funds may be used in dual enrollment pro-
Union of Kentucky, 545 U.S. 844, 162 L. Ed. 2d 729, 125 S. Ct. 2722 (2005). grams to transport children from parochial schools to and from public schools. 65
A prison regulation allowing a cross to be worn only with a rosary discriminated Atty. Gen. 126.
against protestants, without a “ghost of reason,” in violation of the right to the free
exercise of religion. Sasnett v. Litscher, 197 F.3d 290 (1999).
Although the sale to private parties of a small parcel of land in a public park Use of school buildings. SECTION 24. [As created April
ended direct government action constituting endorsement of religion, the proxim- 1972] Nothing in this constitution shall prohibit the legislature
ity of the statue to city property and the lack of visual definition between the city from authorizing, by law, the use of public school buildings by
and private land created a perception of improper endorsement of religion in viola-
tion of the establishment clause. Freedom From Religion Foundation v. City of civic, religious or charitable organizations during nonschool
Marshfield, 203 F.3d 487 (2000). hours upon payment by the organization to the school district of

reasonable compensation for such use. [1969 J.R. 38, 1971 J.R. St. Louis river; thence up the main channel of said river to the
27, vote April 1972] first rapids in the same, above the Indian village, according to
Nicollet’s map; thence due south to the main branch of the river
Right to keep and bear arms. SECTION 25. [As created St. Croix; thence down the main channel of said river to the Mis-
Nov. 1998] The people have the right to keep and bear arms for sissippi; thence down the center of the main channel of that river
security, defense, hunting, recreation or any other lawful pur- to the northwest corner of the state of Illinois; thence due east
pose. [1995 J.R. 27, 1997 J.R. 21, vote November 1998] with the northern boundary of the state of Illinois to the place of
The state constitutional right to bear arms is fundamental, but it is not absolute. beginning, as established by “An act to enable the people of the
This section does not affect the reasonable regulation of guns. The standard of Illinois territory to form a constitution and state government, and
review for challenges to statutes allegedly in violation of this section is whether the
statute is a reasonable exercise of police power. State v. Cole, 2003 WI 112, 264 for the admission of such state into the Union on an equal footing
Wis. 2d 520, 665 N.W.2d 328, 01−0350. with the original states,” approved April 18th, 1818.
The concealed weapons statute is a restriction on the manner in which firearms
are possessed and used. It is constitutional under Art. I, s. 25. Only if the public The Mississippi River is an inland water of Wisconsin and the boat toilet law may
benefit in the exercise of the police power is substantially outweighed by an indi- be enforced on the entire width of the Mississippi bordering Minnesota and up to
vidual’s need to conceal a weapon in the exercise of the right to bear arms will an the center of the main channel bordering Iowa. 61 Atty. Gen. 167.
otherwise valid restriction on that right be unconstitutional. The right to keep and
bear arms for security, as a general matter, must permit a person to possess, carry, Enabling act accepted. SECTION 2. [As amended April
and sometimes conceal arms to maintain the security of a private residence or pri- 1951] The propositions contained in the act of congress are
vately operated business, and to safely move and store weapons within those prem-
ises. State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01−0056. hereby accepted, ratified and confirmed, and shall remain irre-
A challenge on constitutional grounds of a prosecution for carrying a concealed vocable without the consent of the United States; and it is hereby
weapon requires affirmative answers to the following before the defendant may
raise the constitutional defense: 1) under the circumstances, did the defendant’s ordained that this state shall never interfere with the primary dis-
interest in concealing the weapon to facilitate exercise of his or her right to keep posal of the soil within the same by the United States, nor with
and bear arms substantially outweigh the state’s interest in enforcing the concealed any regulations congress may find necessary for securing the
weapons statute? and 2) did the defendant conceal his or her weapon because con-
cealment was the only reasonable means under the circumstances to exercise his title in such soil to bona fide purchasers thereof; and in no case
or her right to bear arms? State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 shall nonresident proprietors be taxed higher than residents.
N.W.2d 785, 01−0056. Provided, that nothing in this constitution, or in the act of con-
Under both Hamdan and Cole there are 2 places in which a citizen’s desire to
exercise the right to keep and bear arms for purposes of security is at its apex: in gress aforesaid, shall in any manner prejudice or affect the right
the citizen’s home or in his or her privately−owned business. It logically and neces- of the state of Wisconsin to 500,000 acres of land granted to said
sarily follows that the individual’s interest in the right to bear arms for purposes of state, and to be hereafter selected and located by and under the
security will not, as a general matter, be particularly strong outside those two loca-
tions. An individual generally has no heightened interest in his or her right to bear act of congress entitled “An act to appropriate the proceeds of
arms for security while in a vehicle. State v. Fisher, 2006 WI 44, 290 Wis. 2d 121, the sales of the public lands, and grant pre−emption rights,”
714 N.W.2d 495, 04−2989. approved September fourth, one thousand eight hundred and
The most natural reading of “keep arms” in the 2nd amendment is to have weap-
ons. The natural meaning of “bear arms” is to “wear, bear, or carry . . . upon the forty−one. [1949 J.R. 11; 1951 J.R. 7; vote April 1951]
person or in the clothing or in a pocket, for the purpose . . . of being armed and ready
for offensive or defensive action in a case of conflict with another person.” Putting
all textual elements together, the 2nd amendment guarantees the individual right
to possess and carry weapons in case of confrontation. However, like most rights, ARTICLE III.
the right secured by the 2nd amendment is not unlimited. District of Columbia v.
Heller, 554 U.S. ___, 171 L. Ed. 2d 637, 128 S. Ct. 2783, (2008).
The 2nd amendment right to bear arms, is fully applicable to the states. The due SUFFRAGE
process clause of the 14th amendment incorporates the 2nd amendment right rec-
ognized in Heller. However, incorporation does not imperil every law regulating
firearms. McDonald v. Chicago, 561 U.S. ___, 130 S. Ct. 3020, ___ L. Ed. 2d ___ Electors. SECTION 1. [As amended Nov. 1882, Nov. 1908,
(2010). Nov. 1934; repealed April 1986; created April 1986] Every
United States citizen age 18 or older who is a resident of an elec-
Right to fish, hunt, trap, and take game. SECTION 26. tion district in this state is a qualified elector of that district.
[As created April 2003] The people have the right to fish, hunt, [1881 J.R. 26 A, 1882 J.R. 5, 1882 c. 272, vote Nov. 1882; 1905
trap, and take game subject only to reasonable restrictions as J.R. 15, 1907 J.R. 25, 1907 c. 661, vote Nov. 1908; 1931 J.R. 91,
prescribed by law. [2001 J.R. 16, 2003 J.R. 8, vote April 2003] 1933 J.R. 76, vote Nov. 1934; 1983 J.R. 30, 1985 J.R. 14, vote
April 1986]
The legislature can amend the current election statutes, without referendum, so
ARTICLE II. as to make the statutes conform with the 26th amendment to the U.S. Constitution.
61 Atty. Gen. 89.
A proposal to amend a statute to allow nonresident property owners to vote on
BOUNDARIES metropolitan sewerage district bonds, in addition to electors, probably would
require the proposal to be submitted to a vote of the electorate under sec. 1. 63 Atty.
Gen. 391.
State boundary. SECTION 1. It is hereby ordained and Even rational restrictions on the right to vote are invidious if they are unrelated
declared that the state of Wisconsin doth consent and accept of to voter qualifications. However evenhanded restrictions that protect the integrity
and reliability of the electoral process itself are not invidious. An Indiana statute
the boundaries prescribed in the act of congress entitled “An act requiring citizens voting in person on election day, or casting a ballot in person at
to enable the people of Wisconsin territory to form a constitution the office of the circuit court clerk prior to election day, to present photo identifica-
and state government, and for the admission of such state into tion issued by the government did not violate constitutional standards. Crawford
v. Marion County Election Board, 553 U.S. 181, 128 S. Ct. 1610, 170 L. Ed. 2d 574
the Union,” approved August sixth, one thousand eight hundred (2008).
and forty−six, to wit: Beginning at the northeast corner of the Constitutional law: residency requirements. 53 MLR 439.
state of Illinois—that is to say, at a point in the center of Lake
Michigan where the line of forty−two degrees and thirty minutes Implementation. SECTION 2. [As repealed April 1986;
of north latitude crosses the same; thence running with the created April 1986] Laws may be enacted:
boundary line of the state of Michigan, through Lake Michigan, (1) Defining residency.
Green Bay, to the mouth of the Menominee river; thence up the (2) Providing for registration of electors.
channel of the said river to the Brule river; thence up said last− (3) Providing for absentee voting.
mentioned river to Lake Brule; thence along the southern shore
of Lake Brule in a direct line to the center of the channel between (4) Excluding from the right of suffrage persons:
Middle and South Islands, in the Lake of the Desert; thence in (a) Convicted of a felony, unless restored to civil rights.
a direct line to the head waters of the Montreal river, as marked (b) Adjudged by a court to be incompetent or partially
upon the survey made by Captain Cramm; thence down the main incompetent, unless the judgment specifies that the person is
channel of the Montreal river to the middle of Lake Superior; capable of understanding the objective of the elective process or
thence through the center of Lake Superior to the mouth of the the judgment is set aside.

(5) Subject to ratification by the people at a general election, Representatives to the assembly, how chosen. SEC-
extending the right of suffrage to additional classes. [1983 J.R. TION 4. [As amended Nov. 1881 and Nov. 1982] The members of
30, 1985 J.R. 14, vote April 1986] the assembly shall be chosen biennially, by single districts, on
Disenfranchisement of felons does not deny them equal protection. Richardson the Tuesday succeeding the first Monday of November in even−
v. Ramirez, 418 U.S. 24. numbered years, by the qualified electors of the several districts,
such districts to be bounded by county, precinct, town or ward
Secret ballot. SECTION 3. [As repealed April 1986; created
lines, to consist of contiguous territory and be in as compact
April 1986] All votes shall be by secret ballot. [1983 J.R. 30,
form as practicable. [1880 J.R. 9S, 1881 J.R. 7A, 1881 c. 262,
1985 J.R. 14, vote April 1986]
vote Nov. 1881; 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982]
U.S. Supreme Court decisions requiring almost absolute equality of population
Residence saved. SECTION 4. [Repealed April 1986; see among electoral districts render nugatory the state court’s construction of art. IV,
1983 J.R. 30, 1985 J.R. 14, vote April 1986.] sec. 4, as prohibiting assembly districts from dividing counties except where a
county is entitled to more than one assembly member. 58 Atty. Gen. 88.
Military stationing does not confer residence. SEC-
TION 5. [Repealed April 1986; see 1983 J.R. 30, 1985 J.R. 14, Senators, how chosen. SECTION 5. [As amended Nov.
vote April 1986.] 1881 and Nov. 1982] The senators shall be elected by single dis-
tricts of convenient contiguous territory, at the same time and in
Exclusion from suffrage. SECTION 6. [Repealed April the same manner as members of the assembly are required to be
1986; see 1983 J.R. 30, 1985 J.R. 14, vote April 1986.] chosen; and no assembly district shall be divided in the forma-
tion of a senate district. The senate districts shall be numbered
in the regular series, and the senators shall be chosen alternately
ARTICLE IV. from the odd and even−numbered districts for the term of 4
years. [1880 J.R. 9S, 1881 J.R. 7A, 1881 c. 262, vote Nov. 1881;
LEGISLATIVE 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982]
Legislative power. SECTION 1. The legislative power shall Qualifications of legislators. SECTION 6. No person shall
be vested in a senate and assembly. be eligible to the legislature who shall not have resided one year
An act validating existing sewerage districts previously held to be unconstitu- within the state, and be a qualified elector in the district which
tionally organized is within the power of the legislature. Madison Metropolitan he may be chosen to represent.
Sewerage Dist. v. Stein, 47 Wis. 2d 349, 177 N.W.2d 131.
The power given vocational district boards to levy taxes does not violate this sec- A candidate for election to Congress need not be a resident of the district at the
tion. The manner of appointing board members is constitutional. West Milwaukee time he or she files nomination papers and executes the declaration of intent to
v. Area Bd. Vocational, T. & A. Ed. 51 Wis. 2d 356, 187 N.W.2d 387. accept the office if elected. A candidate for congress must be an inhabitant of the
state at the time of election. 61 Atty. Gen. 155.
One legislature cannot dictate action by a future legislature or a future legislative
committee. State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 208 N.W.2d 780.
The legislature may constitutionally prescribe a criminal penalty for violation of Organization of legislature; quorum; compulsory
an administrative rule. State v. Courtney, 74 Wis. 2d 705, 247 N.W.2d 714. attendance. SECTION 7. Each house shall be the judge of the
Provisions of s. 144.07 (1m) [now s. 281.34 (1m)], that void a DNR sewerage
connection order if electors in the affected town area reject annexation to the city elections, returns and qualifications of its own members; and a
ordered to extend sewerage service, represents a valid legislative balancing and majority of each shall constitute a quorum to do business, but a
accommodation of 2 statewide concerns: urban development and pollution control. smaller number may adjourn from day to day, and may compel
City of Beloit v. Kallas, 76 Wis. 2d 61, 250 N.W.2d 342.
Mediation − arbitration under s. 111.70 (4) (cm) is a constitutional delegation of
the attendance of absent members in such manner and under
legislative authority. Milwaukee County v. District Council 48, 109 Wis. 2d 14, such penalties as each house may provide.
325 N.W.2d 350 (Ct. App. 1982).
The court will invalidate legislation only for constitutional violations. State ex
rel. La Follette v. Stitt, 114 Wis. 2d 358, 338 N.W.2d 684 (1983). Rules; contempts; expulsion. SECTION 8. Each house
Reference in a statute to a general federal law, as amended, necessarily refer- may determine the rules of its own proceedings, punish for con-
ences the current federal law where the act named in the statute is repealed and the tempt and disorderly behavior, and with the concurrence of two−
law rewritten in another act. Because reference is stated as part of a contingency, thirds of all the members elected, expel a member; but no mem-
it does not constitute unlawful delegation of legislative authority to U.S. Congress.
Dane County Hospital & Home v. LIRC, 125 Wis. 2d 308, 371 N.W.2d 815 (Ct. ber shall be expelled a second time for the same cause.
App. 1985). Courts have no jurisdiction to review legislative rules of proceeding, which are
Proposed amendments to bills creating variable obscenity laws that would those rules having “to do with the process the legislature uses to propose or pass
exempt motion picture films shown at theaters that comply with the film ratings of legislation or how it determines the qualifications of its members.” Milwaukee
the motion picture association of America constitute an unconstitutional delegation Journal Sentinel v. DOA, 2009 WI 79, 319 Wis. 2d 439, 768 N.W.2d 700, 07−1160.
of legislative power. 58 Atty. Gen. 36. The legislature cannot sentence a person to confinement for contempt without
The one man−one vote principle is inapplicable to legislative committees since notice and without giving an opportunity to respond to the charge. Groppi v. Leslie,
that principle applies only to the exercise of legislative powers and such powers 404 U.S. 496.
cannot constitutionally be delegated to these committees. There has been no such
unconstitutional delegation as to the joint committee on finance, the board on gov-
ernment operations, the joint legislative council or the committee to visit state prop- Officers. SECTION 9. [As amended April 1979] Each house
erties. Legislative oversight of administrative rules discussed. 63 Atty. Gen. 173. shall choose its presiding officers from its own members. [1977
J.R. 32, 1979 J.R. 3, vote April 1979]
Legislature, how constituted. SECTION 2. The number
of the members of the assembly shall never be less than fifty− Journals; open doors; adjournments. SECTION 10.
four nor more than one hundred. The senate shall consist of a Each house shall keep a journal of its proceedings and publish
number not more than one−third nor less than one−fourth of the the same, except such parts as require secrecy. The doors of each
number of the members of the assembly. house shall be kept open except when the public welfare shall
require secrecy. Neither house shall, without consent of the
Apportionment. SECTION 3. [As amended Nov. 1910, Nov. other, adjourn for more than three days.
1962 and Nov. 1982] At its first session after each enumeration
made by the authority of the United States, the legislature shall Meeting of legislature. SECTION 11. [As amended Nov.
apportion and district anew the members of the senate and 1881 and April 1968] The legislature shall meet at the seat of
assembly, according to the number of inhabitants. [1907 J.R. 30, government at such time as shall be provided by law, unless con-
1909 J.R. 55, 1909 c. 478, vote Nov. 1910; 1959 J.R. 30, 1961 vened by the governor in special session, and when so convened
J.R. 32, vote Nov. 6, 1962; 1979 J.R. 36, 1981 J.R. 29, vote Nov. no business shall be transacted except as shall be necessary to
1982] accomplish the special purposes for which it was convened.
Institutional populations, as well as other populations that may include persons
disenfranchised for some reason, may not be disregarded for redistricting purposes. [1880 J.R. 9S, 1881 J.R. 7A, 1881 c. 262, vote Nov. 1881; 1965
70 Atty. Gen. 80. J.R. 57, 1967 J.R. 48, vote April 1968]

Ineligibility of legislators to office. SECTION 12. No an act, namely, the enabling clause. State v. Weidman, 2007 WI App 258, 306 Wis.
2d 723, 743 N.W.2d 854, 06−2168.
member of the legislature shall, during the term for which he was In order for the legislature to create a law, the proposed law must be enacted by
elected, be appointed or elected to any civil office in the state, bill. Mere enactment of a bill to ratify a collective bargaining agreement and publi-
which shall have been created, or the emoluments of which shall cation of it as an act was not sufficient to cause a provision of the collective bargain-
ing agreement to become a law enacted under this section to create an exception
have been increased, during the term for which he was elected. to the public records law, s. 19.35. The act did not reference s. 19.35 or the contract
A legislator may be elected to a constitutional or statutory state elective office provision that purportedly modified that law, did not purport to amend any pub-
even though the emoluments of the office were raised during his or her legislative lished statutes, and did not contain any language that might give notice that the stat-
term. If so elected, the legislator is limited by 13.04 (1) to the emoluments of the ute was being amended. As a result, the contract provision was not enacted by bill
office prior to the increase. A legislator is not eligible, however, for appointment and remained a contractual provision and was not a “law” that is an exception to
to an office created during his or her term or to an office the emoluments of which s. 19.35. Milwaukee Journal Sentinel v. DOA, 2009 WI 79, 319 Wis. 2d 439, 768
appointive office were raised during his or her legislative term. 63 Atty. Gen. 127. N.W.2d 700, 07−1160.
Under certain circumstances, incorporation by reference in a bill may be effec-
Ineligibility of federal officers. SECTION 13. [As amended tive to work a change in the law. Cases recognizing incorporation by reference have
generally dealt with incorporating the provisions of other published statutes and
April 1966] No person being a member of congress, or holding with the establishment of standards by reference, not incorporation of sources
any military or civil office under the United States, shall be eligi- being given the force of law. The source being incorporated cannot be a law itself
ble to a seat in the legislature; and if any person shall, after his without having been enacted in a manner sufficient to satisfy this section. Milwau-
kee Journal Sentinel v. DOA, 2009 WI 79, 319 Wis. 2d 439, 768 N.W.2d 700,
election as a member of the legislature, be elected to congress, 07−1160.
or be appointed to any office, civil or military, under the govern- In order for the legislature to create a law, the proposed law must be enacted by
ment of the United States, his acceptance thereof shall vacate his bill and be published. For some action to be sufficient to constitute publication, that
action must be evaluated in light of the purpose publication seeks to achieve, i.e.,
seat. This restriction shall not prohibit a legislator from accept- was the public provided with sufficient notice of the law that is being enacted or
ing short periods of active duty as a member of the reserve or amended. The publication requirement is meant to avoid the situation where the
from serving in the armed forces during any emergency declared people have their rights sacrificed by the operation of laws that they are bound to
know, but have no means of knowing. Milwaukee Journal Sentinel v. DOA, 2009
by the executive. [1963 J.R. 34, 1965 J.R. 14, vote April 1966.] WI 79, 319 Wis. 2d 439, 768 N.W.2d 700, 07−1160.
The state legislature cannot constitutionally adopt prospective federal legisla-
Filling vacancies. SECTION 14. The governor shall issue tion by reference. 63 Atty. Gen. 229.
Article VII, sec. 21 [17] requires full text publication of all general laws, and
writs of election to fill such vacancies as may occur in either publication of an abstract or synopsis of such laws would not be sufficient. Meth-
house of the legislature. ods other than newspaper publication, under 985.04, may be utilized to give public
notice of general laws. 63 Atty. Gen. 346. See also s. 14.38 (10).
Exemption from arrest and civil process. SECTION 15.
Members of the legislature shall in all cases, except treason, fel- Title of private bills. SECTION 18. No private or local bill
ony and breach of the peace, be privileged from arrest; nor shall which may be passed by the legislature shall embrace more than
they be subject to any civil process, during the session of the leg- one subject, and that shall be expressed in the title.
islature, nor for fifteen days next before the commencement and Chapter 418, laws of 1977, s. 923 (48) (a) is a private or local bill enacted uncon-
stitutionally. Soo Line R. Co. v. Transportation Dept. 101 Wis. 2d 64, 303 N.W.2d
after the termination of each session. 626 (1981).
The privilege under this section can be invoked by a legislator only if the legisla- A specific prison siting provision in a budget act did not violate this section. The
tor is subpoenaed, not if an aide is subpoenaed. State v. Beno, 116 Wis. 2d 122, 341 test for distinguishing a private or local law is established. Milwaukee Brewers v.
N.W.2d 668 (1984). DHSS, 130 Wis. 2d 79, 387 N.W.2d 254 (1986).
The members of the Wisconsin Constitutional Convention did not intend to Challenged legislation, although general on its face, violated this section
create a legislative privilege from criminal arrest and prosecution when they because the classification employed was not based on any substantial distinction
included article IV, section 15 in the Wisconsin Constitution. The phrase “treason,
between classes employed nor was it germane to purposes of the legislation.
felony and breach of the peace” in that section was intended to mean all crimes.
State v. Burke, 2002 WI App 291, 258 Wis. 2d 832, 653 N.W.2d 922, 02−2161. Brookfield v. Milwaukee Sewerage District, 144 Wis. 2d 896, 426 N.W.2d 591
(1988).
A bill has a single subject if all of its provisions are related to the same general
Privilege in debate. SECTION 16. No member of the legis- purpose and are incident to that purpose. A title is insufficient only if it fails to rea-
lature shall be liable in any civil action, or criminal prosecution sonably suggest the purpose of the act or if a reading of the act with the full scope
of the title in mind discloses a provision clearly outside the title. Brookfield v. Mil-
whatever, for words spoken in debate. waukee Sewerage District, 171 Wis. 2d 400, 491 N.W.2d 484 (1992).
The sphere of legislative action protected under this section is broader than floor A 2−prong analysis for determining violations of this section is discussed. City
deliberations. A legislator may invoke the privilege under this section to immunize of Oak Creek v. DNR, 185 Wis. 2d 424, 518 N.W.2d 276 (Ct. App. 1994).
an aide from a subpoena to testify as to an investigation conducted by the aide at Courts will not afford legislation challenged under this section a presumption of
the legislator’s request. State v. Beno, 116 Wis. 2d 122, 341 N.W.2d 668 (1984). constitutionality unless the record shows that the legislature adequately considered
Not all activities of a legislator are protected by this section insofar as that activ- the legislation in question. When a majority of the members of the Assembly co−
ity is not an integral part of the deliberative and communicative processes. While sponsored a single−subject bill exempting YMCAs from property taxation before
legislative acts are protected by the speech and debate clause, political acts are not. the measure was added to the budget bill and a majority of senators either co−spon-
Hiring, directing, and managing legislative caucus staff to oversee political cam- sored the stand−alone bill or considered and voted for the proposal as members of
paigns is not protected. By its very nature, engaging in campaign activity is politi- the Joint Finance Committee, there was a presumption that the legislators who
cal. State v. Chvala, 2004 WI App 53, 271 Wis. 2d 115, 678 N.W.2d 880, 03−0442. sponsored the bill or voted for it in committee adequately considered the proposal.
See also State v. Jensen, 2004 WI App 89, 272 Wis. 2d 707, 684 N.W.2d 136, Lake Country Racquet and Athletic Club, Inc. v. Morgan, 2006 WI App 25, 289
03−0106. Wis. 2d 498, 710 N.W.2d 701, 04−3061.
This section provides only immunity from prosecution based on use of commu-
nications, and not secrecy for communications of government officials and
employees. Legislative Technical Services Bureau Custodian of Records v. State, Origin of bills. SECTION 19. Any bill may originate in either
2004 WI 65, 272 Wis. 2d 208, 680 N.W.2d 792, 02−3063. house of the legislature, and a bill passed by one house may be
In a federal criminal prosecution against a state legislator there is no legislative
privilege barring introduction of evidence of the legislator’s legislative acts. amended by the other.
United States v. Gillock, 445 U.S. 360 (1980).
Yeas and nays. SECTION 20. The yeas and nays of the mem-
Enactment of laws. SECTION 17. [As amended April 1977] bers of either house on any question shall, at the request of one−
(1) The style of all laws of the state shall be “The people of the sixth of those present, be entered on the journal.
state of Wisconsin, represented in senate and assembly, do enact The taking of yea and nay votes and the entry on the journals of the senate and
as follows:”. assembly can be complied with by recording the total aye vote together with a list-
ing of the names of those legislators who voted no, were absent or not voting or
(2) No law shall be enacted except by bill. No law shall be were paired on the question. Art. V, sec. 10; Art. VIII, sec. 8; Art. XII, sec. 1 dis-
in force until published. cussed. 63 Atty. Gen. 346.
(3) The legislature shall provide by law for the speedy publi-
cation of all laws. [1975 J.R. 13, 1977 J.R. 7, vote April 1977] Compensation of members. SECTION 21. [Amended Nov.
The enacting clause is not required for each particular statute. According to leg- 1867 and Nov. 1881; repealed April 1929; see 1865 J.R. 9; 1866
islative rule, when an act, or part of an act, creates a statute section number, that J.R. 3; 1867 c. 25, vote Nov. 1867; 1880 J.R. 9S, 1881 J.R. 7A,
action indicates a legislative intent to make the section a part of the Wisconsin Stat-
utes. Hence, because the legislature can intend that only a part of an act creates a 1881 c. 262, vote Nov. 1881; 1927 J.R. 57, 1929 J.R. 6, vote April
statute, it does not follow that each statute must contain all the constituent parts of 1929.]

Powers of county boards. SECTION 22. The legislature (c) To visit a mercantile establishment or other place without
may confer upon the boards of supervisors of the several coun- being required to make a purchase or pay an admittance fee.
ties of the state such powers of a local, legislative and adminis- (3) The legislature may authorize the following bingo games
trative character as they shall from time to time prescribe. licensed by the state, but all profits shall accrue to the licensed
Milwaukee county may, by ordinance, provide credit in a retirement system for organization and no salaries, fees or profits may be paid to any
service of an employee with another municipality. 61 Atty. Gen. 177.
other organization or person: bingo games operated by religious,
Town and county government. SECTION 23. [As charitable, service, fraternal or veterans’ organizations or those
amended Nov. 1962, April 1969 and April 1972] The legislature to which contributions are deductible for federal or state income
shall establish but one system of town government, which shall tax purposes. All moneys received by the state that are attributa-
be as nearly uniform as practicable; but the legislature may pro- ble to bingo games shall be used for property tax relief for resi-
vide for the election at large once in every 4 years of a chief dents of this state as provided by law. The distribution of mon-
executive officer in any county with such powers of an adminis- eys that are attributable to bingo games may not vary based on
trative character as they may from time to time prescribe in the income or age of the person provided the property tax relief.
accordance with this section and shall establish one or more sys- The distribution of moneys that are attributable to bingo games
tems of county government. [1959 J.R. 68, 1961 J.R. 64, vote shall not be subject to the uniformity requirement of section 1 of
Nov. 6, 1962; 1967 J.R. 49, 1969 J.R. 2, vote April 1969; 1969 article VIII. In this subsection, the distribution of all moneys
J.R. 32, 1971 J.R. 13, vote April 1972] attributable to bingo games shall include any earnings on the
Abolishing the office of town assessor in those counties adopting a countywide moneys received by the state that are attributable to bingo
assessor system does not amount to the creation of a different system of town gov- games, but shall not include any moneys used for the regulation
ernment. Thompson v. Kenosha County, 64 Wis. 2d 673, 221 N.W.2d 845. of, and enforcement of law relating to, bingo games.
Only enactments that unnecessarily interfere with the system’s uniformity in a
material respect are invalidated by this section. Classifications based upon popula- (4) The legislature may authorize the following raffle games
tion have generally been upheld. State ex rel. Wolf v. Town of Lisbon, 75 Wis. 2d licensed by the state, but all profits shall accrue to the licensed
152, 248 N.W.2d 450.
local organization and no salaries, fees or profits may be paid to
Chief executive officer to approve or veto resolu- any other organization or person: raffle games operated by local
tions or ordinances; proceedings on veto. SECTION 23a. religious, charitable, service, fraternal or veterans’ organiza-
[As created Nov. 1962 and amended April 1969] Every resolutions or those to which contributions are deductible for federal
tion or ordinance passed by the county board in any county shall, or state income tax purposes. The legislature shall limit the num-
before it becomes effective, be presented to the chief executive ber of raffles conducted by any such organization.
officer. If he approves, he shall sign it; if not, he shall return it (5) This section shall not prohibit pari−mutuel on−track bet-
with his objections, which objections shall be entered at large ting as provided by law. The state may not own or operate any
upon the journal and the board shall proceed to reconsider the facility or enterprise for pari−mutuel betting, or lease any state−
matter. Appropriations may be approved in whole or in part by owned land to any other owner or operator for such purposes.
the chief executive officer and the part approved shall become All moneys received by the state that are attributable to pari−mu-
law, and the part objected to shall be returned in the same manner tuel on−track betting shall be used for property tax relief for resi-
as provided for in other resolutions or ordinances. If, after such dents of this state as provided by law. The distribution of mon-
reconsideration, two−thirds of the members−elect of the county eys that are attributable to pari−mutuel on−track betting may not
board agree to pass the resolution or ordinance or the part of the vary based on the income or age of the person provided the prop-
resolution or ordinance objected to, it shall become effective on erty tax relief. The distribution of moneys that are attributable
the date prescribed but not earlier than the date of passage fol- to pari−mutuel on−track betting shall not be subject to the uni-
lowing reconsideration. In all such cases, the votes of the mem- formity requirement of section 1 of article VIII. In this sub-
bers of the county board shall be determined by ayes and noes section, the distribution of all moneys attributable to pari−mu-
and the names of the members voting for or against the resolu- tuel on−track betting shall include any earnings on the moneys
tion or ordinance or the part thereof objected to shall be entered received by the state that are attributable to pari−mutuel on−
on the journal. If any resolution or ordinance is not returned by track betting, but shall not include any moneys used for the regu-
the chief executive officer to the county board at its first meeting lation of, and enforcement of law relating to, pari−mutuel on−
occurring not less than 6 days, Sundays excepted, after it has track betting.
been presented to him, it shall become effective unless the (6) (a) The legislature may authorize the creation of a lottery
county board has recessed or adjourned for a period in excess of to be operated by the state as provided by law. The expenditure
60 days, in which case it shall not be effective without his of public funds or of revenues derived from lottery operations to
approval. [1959 J.R. 68, 1961 J.R. 64, vote Nov. 6, 1962; 1967 engage in promotional advertising of the Wisconsin state lottery
J.R. 49, 1969 J.R. 2, vote April 1969] is prohibited. Any advertising of the state lottery shall indicate
A county executive’s power to veto ordinances and resolutions extends to rezon- the odds of a specific lottery ticket to be selected as the winning
ing petitions that are in essence proposed amendments to the county zoning ordi- ticket for each prize amount offered. The net proceeds of the
nance. The veto is subject to limited judicial review. Schmeling v. Phelps, 212 Wis.
2d 898, 569 N.W.2d 784 (Ct. App. 1997), 96−2661. state lottery shall be deposited in the treasury of the state, to be
A county executive’s partial−veto power is similar to the governor’s power. 73 used for property tax relief for residents of this state as provided
Atty. Gen. 92. by law. The distribution of the net proceeds of the state lottery
A county board may not amend a resolution, ordinance, or part thereof vetoed may not vary based on the income or age of the person provided
by the county executive, but can pass a separate substitute for submission to the
executive. The board has a duty to promptly reconsider vetoed resolutions, ordi- the property tax relief. The distribution of the net proceeds of
nances, or parts thereof. 74 Atty. Gen. 73. the state lottery shall not be subject to the uniformity require-
ment of section 1 of article VIII. In this paragraph, the distribu-
Gambling. SECTION 24. [As amended April 1965, April tion of the net proceeds of the state lottery shall include any earn-
1973, April 1977, April 1987, April 1993 and April 1999] ings on the net proceeds of the state lottery.
(1) Except as provided in this section, the legislature may not
(b) The lottery authorized under par. (a) shall be an enterprise
authorize gambling in any form.
that entitles the player, by purchasing a ticket, to participate in
(2) Except as otherwise provided by law, the following a game of chance if: 1) the winning tickets are randomly prede-
activities do not constitute consideration as an element of gam- termined and the player reveals preprinted numbers or symbols
bling: from which it can be immediately determined whether the ticket
(a) To listen to or watch a television or radio program. is a winning ticket entitling the player to win a prize as pre-
(b) To fill out a coupon or entry blank, whether or not proof scribed in the features and procedures for the game, including an
of purchase is required. opportunity to win a prize in a secondary or subsequent chance

drawing or game; or 2) the ticket is evidence of the numbers or Panzer v. Doyle: Wisconsin Constitutional Law Deals the Governor a New
Hand. Wawrzyn. 89 MLR. 221 (2005).
symbols selected by the player or, at the player’s option, selected
by a computer, and the player becomes entitled to a prize as pre-
Stationery and printing. SECTION 25. The legislature
scribed in the features and procedures for the game, including an
shall provide by law that all stationery required for the use of the
opportunity to win a prize in a secondary or subsequent chance
state, and all printing authorized and required by them to be done
drawing or game if some or all of the player’s symbols or num-
for their use, or for the state, shall be let by contract to the lowest
bers are selected in a chance drawing or game, if the player’s
bidder, but the legislature may establish a maximum price; no
ticket is randomly selected by the computer at the time of pur-
member of the legislature or other state officer shall be inter-
chase or if the ticket is selected in a chance drawing.
ested, either directly or indirectly, in any such contract.
(c) Notwithstanding the authorization of a state lottery under The legality of appointing a nominee to the board of regents when that person
par. (a), the following games, or games simulating any of the fol- is a major stockholder in a printing company that is under contract to the state is
lowing games, may not be conducted by the state as a lottery: 1) discussed. 60 Atty. Gen. 172.
any game in which winners are selected based on the results of
a race or sporting event; 2) any banking card game, including Extra compensation; salary change. SECTION 26.
blackjack, baccarat or chemin de fer; 3) poker; 4) roulette; 5) (1) [As amended April 1956, April 1967, April 1974, April 1977
craps or any other game that involves rolling dice; 6) keno; 7) and April 1992] The legislature may not grant any extra com-
bingo 21, bingo jack, bingolet or bingo craps; 8) any game of pensation to a public officer, agent, servant or contractor after
chance that is placed on a slot machine or any mechanical, elec- the services have been rendered or the contract has been entered
tromechanical or electronic device that is generally available to into.
be played at a gambling casino; 9) any game or device that is (2) Except as provided in this subsection, the compensation
commonly known as a video game of chance or a video gaming of a public officer may not be increased or diminished during the
machine or that is commonly considered to be a video gambling term of office:
machine, unless such machine is a video device operated by the (a) When any increase or decrease in the compensation of
state in a game authorized under par. (a) to permit the sale of tick- justices of the supreme court or judges of any court of record
ets through retail outlets under contract with the state and the becomes effective as to any such justice or judge, it shall be
device does not determine or indicate whether the player has effective from such date as to every such justice or judge.
won a prize, other than by verifying that the player’s ticket or (b) Any increase in the compensation of members of the leg-
some or all of the player’s symbols or numbers on the player’s islature shall take effect, for all senators and representatives to
ticket have been selected in a chance drawing, or by verifying the assembly, after the next general election beginning with the
that the player’s ticket has been randomly selected by a central new assembly term.
system computer at the time of purchase; 10) any game that is (3) Subsection (1) shall not apply to increased benefits for
similar to a game listed in this paragraph; or 11) any other game persons who have been or shall be granted benefits of any kind
that is commonly considered to be a form of gambling and is not, under a retirement system when such increased benefits are pro-
or is not substantially similar to, a game conducted by the state vided by a legislative act passed on a call of ayes and noes by a
under par. (a). No game conducted by the state under par. (a) three−fourths vote of all the members elected to both houses of
may permit a player of the game to purchase a ticket, or to other- the legislature and such act provides for sufficient state funds to
wise participate in the game, from a residence by using a com- cover the costs of the increased benefits. [1953 J.R. 41, 1955 J.R.
puter, telephone or other form of electronic, telecommunication, 17, vote April 3, 1956; 1965 J.R. 96, 1967 J.R. 17, vote April
video or technological aid. [1963 J.R. 35, 1965 J.R. 2, vote April 1967; 1971 J.R. 12, 1973 J.R. 15, vote April 1974; 1975 J.R. 13,
1965; 1971 J.R. 31, 1973 J.R. 3, vote April 1973; 1975 J.R. 19, 1977 J.R. 7, vote April 1977; 1991 J.R. 13, vote April 1992]
1977 J.R. 6, vote April 1977; 1985 J.R. 36, 1987 J.R. 3, vote This section does not prohibit a retroactive wage adjustment negotiated by col-
April 1987; 1985 J.R. 35, 1987 J. R. 4, vote April 1987; 1993 J.R. lective bargaining and applied only to a period when employees were working
3, vote April 1993; 1999 J.R. 2, vote April 1999] without a contract. Department of Administration v. WERC, 90 Wis. 2d 426, 280
N.W.2d 150 (1979).
The governor acted contrary to the public policy embodied in state law and there-
fore acted without authority by agreeing to an Indian gaming compact allowing the Payments to roadbuilders for extra compensation due to unexpected fuel costs
conduct of games prohibited by Art. IV, s. 24 and criminal statutes. Panzer v. violated this section. Krug v. Zueske, 199 Wis. 2d 406, 544 N.W.2d 618 (Ct. App.
Doyle, 2004 WI 52, 271 Wis. 2d 295, 680 N.W.2d 666, 03−0910. 1996), 94−3193.
The 1993 amendment to this section did not invalidate the original compacts The sub. (3) requirement of a three−fourths vote of all members elected to the
between the state and Indian tribes. Because the original compacts contemplated legislature permits passage of a bill increasing benefits under a retirement system
extending and amending the scope of Indian gaming, the parties’ right of renewal when the bill has received the votes of three−fourths of the entire elected member-
is constitutionally protected by the contract clauses of the United States and Wis- ship of the legislature. Wisconsin Professional Police Association, Inc. v. Light-
consin constitutions; and amendments to the original compacts that expand the bourn, 2001 WI 59, 243 Wis. 2d 512, 627 N.W.2d 807, 99−3297.
scope of gaming are likewise constitutionally protected by the contract clauses of An amendment authorizing increased benefits to all retired employees would
the Wisconsin and United States constitutions. Dairyland Greyhound Park, Inc. v. constitute a legislative declaration that such expenditures would be for a public pur-
Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408, 03−0421. pose. 58 Atty. Gen. 101.
The state lottery board may conduct any lottery game that complies with the University salaries may be increased only from the date the regents adopt the
ticket language in constitution and ch. 565. The term “lottery” in the constitution budget and are subject to subsequent funding by the legislature. 60 Atty. Gen. 487.
and statutes does not include any other forms of betting, playing or operation of
gambling machines and devices and other forms of gambling defined in ch. 945. Suits against state. SECTION 27. The legislature shall
The legislature can statutorily authorize other non−lottery gambling including casi-
no−type games. 79 Atty. Gen. 14. direct by law in what manner and in what courts suits may be
Under the Indian Gaming Regulatory Act, 25 U.S.C.A. ss. 2701−2721, gambling brought against the state.
activities as defined and prohibited in ch. 945, other than lotteries and pari−mutuel An action will not lie against the secretary of revenue for a refund of a sales tax
on−track wagering, are not permitted by any person within or without Indian coun- deposit as that is an action against the state and it was not alleged that the secretary
try in State of Wisconsin. The prohibition includes all non−lottery gambling such acted outside his authority. Appel v. Halverson, 50 Wis. 2d 230, 184 N.W.2d 99.
as casino−type games, gambling machines and other devices. The legislature can Since the mandate of this section is to the legislature, the supreme court cannot
statutorily authorize non−lottery gambling within Indian country. 79 Atty. Gen. 14. judicially intervene to change the doctrine of procedural immunity and thereby cor-
Enactment of legislation that would propose to license and regulate certain rect the anomaly that arises as a result of the constitutional restriction, absent legis-
“amusement devices” that are gambling machines would authorize “gambling” in lative implementation, of tort suits against the state. Cords v. State, 62 Wis. 2d 42,
violation of Art. IV, section 24. OAG 2−96. 214 N.W.2d 405.
The state’s interest in preventing organized crime infiltration of a tribal bingo A state agency or officer may not waive the state’s sovereign immunity without
enterprise does not justify state regulation in light of compelling federal and tribal specific authorization, nor will principles of estoppel be applied to deprive the state
interest supporting it. California v. Cabazon Band of Indians, 480 U.S. 202 (1987). of its sovereign rights. Lister v. Bd. of Regents, 72 Wis. 2d 282, 240 N.W.2d 610.
When voters authorized a state−operated “lottery” they removed any remaining Although courts have common law jurisdiction to enforce arbitration awards
prohibition against state−operated games, schemes, or plans involving prize, generally, they cannot enforce awards against the state absent express legislative
chance and consideration. Lac du Flambeau Indians v. State of Wisconsin, 770 F. authorization. Teaching Assistants Assoc. v. UW−Madison, 96 Wis. 2d 492, 292
Supp. 480 (1991). N.W.2d 657 (Ct. App. 1980).
Gambling and the law: The Wisconsin experience, 1848−1980. Farnsley, 1980 The doctrine of sovereign immunity cannot bar an action for just compensation
WLR 811. based on a taking of private property for public use even though the legislature has

failed to establish specific provisions for the recovery of just compensation. Zinn An act validating existing sewerage districts previously held to be unconstitu-
v. State, 112 Wis. 2d 417, 334 N.W.2d 67 (1983). tionally organized is within the power of the legislature. Madison Metropolitan
A waiver of sovereign immunity in the creation of a state agency is discussed. Sewerage Dist. v. Stein, 47 Wis. 2d 349, 177 N.W.2d 131.
Busse v. Dane County Regional Planning Comm. 181 Wis. 2d 527, 510 N.W.2d 136 The Housing Authority, designated as a corporation, does not violate the prohibi-
(Ct. App. 1993). tion against granting of corporate powers by the legislature. State ex rel. Warren
Sovereign immunity does not apply to arbitration. State v. P. G. Miron Const. v. Nusbaum, 59 Wis. 2d 391, 208 N.W.2d 780.
Co., Inc. 181 Wis. 2d 1045, 512 N.W.2d 499 (1994). The plain meaning of sub. (9) pertains not just to legislation directly incorporat-
A specific performance action is a suit under this section. The legislature has not ing a municipality, but also to legislation providing a process for incorporating. A
consented to be sued for specific performance, and such an action is not permitted provision in a budget bill that exempted a town from the normal statutory incorpo-
against the state. Erickson Oil Products, Inc. v. DOT, 184 Wis. 2d 36, 516 N.W.2d ration process violated sub. (9) and was unconstitutional. Kuehne v. Burdette, 2009
755 (Ct. App. 1994). WI App 119, 320 Wis. 2d 784, 772 N.W.2d 225, 08−1342.
The state waives its sovereign immunity when it creates an agency as an indepen- Sec. 31 includes a public purpose doctrine allowing the granting of limited cor-
dent going concern. Bahr v. State Investment Bd. 186 Wis. 2d 379, 521 N.W.2d porate powers to entities created to promote a public and state purpose. Brookfield
152 (Ct. App. 1994). v. Milwaukee Sewerage District, 171 Wis. 2d 400, 491 N.W.2d 484 (1992).
Creation of citizens utility board is constitutional. 69 Atty. Gen. 153.
A county’s appeal of an ex parte order that it was responsible for court costs
incurred by the state public defender for an indigent defendant was not an action
“brought” against the state. The public defender could not assert that the appeal General laws on enumerated subjects. SECTION 32.
was barred by sovereign immunity. Polk County v. State Public Defender, 188 Wis. [As created Nov. 1871 and amended April 1993] The legislature
2d 665, 524 N.W.2d 389 (1994). may provide by general law for the treatment of any subject for
Although the general rule is that waivers of sovereign immunity must be read
narrowly, when a statute provides a clear, express, and broadly worded consent to which lawmaking is prohibited by section 31 of this article. Sub-
sue, the rule of narrow construction will not be applied anew to every type of claim ject to reasonable classifications, such laws shall be uniform in
brought under the statute. German v. DOT, 223 Wis. 2d 525, 589 N.W.2d 651 (Ct.
App. 1998), 98−0250. their operation throughout the state. [1870 J.R. 13, 1871 J.R. 1,
Congress lacks the power to subject the states to private suits in their own state 1871 c. 122, vote Nov. 1871; 1993 J.R. 3, vote April 1993]
courts. Alder v. Maine, 527 U.S. 706, 144. L. Ed. 2d 636 (1999). Tests for violation of ss. 31 and 32 discussed. Brookfield v. Milwaukee Sewer-
The state has removed only the substantive defense of governmental tort immu- age District, 144 Wis. 2d 896, 426 N.W.2d 591 (1988).
nity and the state constitutional barrier providing that the state may be sued only
upon its consent remains. Knox v. Regents of University of Wisconsin, 385 F. Auditing of state accounts. SECTION 33. [As created Nov.
Supp. 886.
State immunity from suit. 1971 WLR 879.
1946] The legislature shall provide for the auditing of state
accounts and may establish such offices and prescribe such
Oath of office. SECTION 28. Members of the legislature, and duties for the same as it shall deem necessary. [1943 J.R. 60,
all officers, executive and judicial, except such inferior officers 1945 J.R. 73, vote Nov. 1946]
as may be by law exempted, shall before they enter upon the Continuity of civil government. SECTION 34. [As created
duties of their respective offices, take and subscribe an oath or April 1961] The legislature, in order to ensure continuity of state
affirmation to support the constitution of the United States and and local governmental operations in periods of emergency
the constitution of the state of Wisconsin, and faithfully to dis- resulting from enemy action in the form of an attack, shall (1)
charge the duties of their respective offices to the best of their forthwith provide for prompt and temporary succession to the
ability. powers and duties of public offices, of whatever nature and
whether filled by election or appointment, the incumbents of
Militia. SECTION 29. The legislature shall determine what which may become unavailable for carrying on the powers and
persons shall constitute the militia of the state, and may provide duties of such offices, and (2) adopt such other measures as may
for organizing and disciplining the same in such manner as shall be necessary and proper for attaining the objectives of this sec-
be prescribed by law. tion. [1959 J.R. 50, 1961 J.R. 10, vote April 1961]
Elections by legislature. SECTION 30. [As amended Nov.
1982] All elections made by the legislature shall be by roll call ARTICLE V.
vote entered in the journals. [1979 J.R. 36, 1981 J.R. 29, vote
Nov. 1982] EXECUTIVE
Special and private laws prohibited. SECTION 31. [As Governor; lieutenant governor; term. SECTION 1. [As
created Nov. 1871 and amended Nov. 1892 and April 1993] The amended April 1979] The executive power shall be vested in a
legislature is prohibited from enacting any special or private governor who shall hold office for 4 years; a lieutenant governor
laws in the following cases: shall be elected at the same time and for the same term. [1977
J.R. 32, 1979 J.R. 3, vote April 1979]
(1) For changing the names of persons, constituting one per- Executive orders of the Wisconsin governor. 1980 WLR 333.
son the heir at law of another or granting any divorce.
(2) For laying out, opening or altering highways, except in Governor; 4−year term. SECTION 1m. [Created April
cases of state roads extending into more than one county, and 1967; repealed April 1979; see 1965 J.R. 80, 1967 J.R. 10 and
military roads to aid in the construction of which lands may be 15, vote April 1967; 1977 J.R. 32, 1979 J.R. 3, vote April 1979.]
granted by congress.
(3) For authorizing persons to keep ferries across streams at Lieutenant governor; 4−year term. SECTION 1n.
points wholly within this state. [Created April 1967; repealed April 1979; see 1965 J.R. 80,
1967 J.R. 10 and 15, vote April 1967; 1977 J.R. 32, 1979 J.R. 3,
(4) For authorizing the sale or mortgage of real or personal vote April 1979.]
property of minors or others under disability.
(5) For locating or changing any county seat. Eligibility. SECTION 2. No person except a citizen of the
(6) For assessment or collection of taxes or for extending the United States and a qualified elector of the state shall be eligible
time for the collection thereof. to the office of governor or lieutenant governor.
(7) For granting corporate powers or privileges, except to Election. SECTION 3. [As amended April 1967] The governor
cities. and lieutenant governor shall be elected by the qualified electors
(8) For authorizing the apportionment of any part of the of the state at the times and places of choosing members of the
school fund. legislature. They shall be chosen jointly, by the casting by each
(9) For incorporating any city, town or village, or to amend voter of a single vote applicable to both offices beginning with
the charter thereof. [1870 J.R. 13, 1871 J.R. 1, 1871 c. 122, vote the general election in 1970. The persons respectively having
Nov. 1871; 1889 J.R. 4, 1891 J.R. 4, 1891 c. 362, vote Nov. 1892; the highest number of votes cast jointly for them for governor
1993 J.R. 3, vote April 1993] and lieutenant governor shall be elected; but in case two or more

slates shall have an equal and the highest number of votes for from office, the secretary of state shall become governor for the
governor and lieutenant governor, the two houses of the legisla- balance of the unexpired term.
ture, at its next annual session shall forthwith, by joint ballot, (2) If there is a vacancy in the office of lieutenant governor
choose one of the slates so having an equal and the highest num- and the governor is absent from this state, impeached, or from
ber of votes for governor and lieutenant governor. The returns mental or physical disease becomes incapable of performing the
of election for governor and lieutenant governor shall be made duties of the office, the secretary of state shall serve as acting
in such manner as shall be provided by law. [1965 J.R. 45, 1967 governor for the balance of the unexpired term or until the gover-
J.R. 11 and 14, vote April 1967] nor returns, the disability ceases or the impeachment is vacated.
[1977 J.R. 32, 1979 J.R. 3, vote April 1979]
Powers and duties. SECTION 4. The governor shall be
commander in chief of the military and naval forces of the state. Compensation of lieutenant governor. SECTION 9.
He shall have power to convene the legislature on extraordinary [Amended Nov. 1869; repealed Nov. 1932; see 1868 J.R. 9, 1869
occasions, and in case of invasion, or danger from the preva- J.R. 2, 1869 c. 186, vote Nov. 1869; 1929 J.R. 70, 1931 J.R. 53,
lence of contagious disease at the seat of government, he may vote Nov. 1932.]
convene them at any other suitable place within the state. He
shall communicate to the legislature, at every session, the condi- Governor to approve or veto bills; proceedings on
tion of the state, and recommend such matters to them for their veto. SECTION 10. [As amended Nov. 1908, Nov. 1930, April
consideration as he may deem expedient. He shall transact all 1990 and April 2008] (1) (a) Every bill which shall have passed
necessary business with the officers of the government, civil and the legislature shall, before it becomes a law, be presented to the
military. He shall expedite all such measures as may be resolved governor.
upon by the legislature, and shall take care that the laws be faith-
(b) If the governor approves and signs the bill, the bill shall
fully executed.
become law. Appropriation bills may be approved in whole or
The legislature cannot require the governor to make specific recommendations
to a future legislature or to include future appropriations in the executive budget in part by the governor, and the part approved shall become law.
bill. State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 208 N.W.2d 780. (c) In approving an appropriation bill in part, the governor
may not create a new word by rejecting individual letters in the
Compensation of governor. SECTION 5. [Amended Nov. words of the enrolled bill, and may not create a new sentence by
1869 and Nov. 1926; repealed Nov. 1932; see 1868 J.R. 9, 1869 combining parts of 2 or more sentences of the enrolled bill.
J.R. 2, 1869 c. 186, vote Nov. 1869; 1923 J.R. 80, 1925 J.R. 52, (2) (a) If the governor rejects the bill, the governor shall
1925 c. 413, vote Nov. 1926; 1929 J.R. 69, 1931 J.R. 52, vote return the bill, together with the objections in writing, to the
Nov. 1932.] house in which the bill originated. The house of origin shall
enter the objections at large upon the journal and proceed to
Pardoning power. SECTION 6. The governor shall have reconsider the bill. If, after such reconsideration, two−thirds of
power to grant reprieves, commutations and pardons, after con- the members present agree to pass the bill notwithstanding the
viction, for all offenses, except treason and cases of impeach- objections of the governor, it shall be sent, together with the
ment, upon such conditions and with such restrictions and limi- objections, to the other house, by which it shall likewise be
tations as he may think proper, subject to such regulations as reconsidered, and if approved by two−thirds of the members
may be provided by law relative to the manner of applying for present it shall become law.
pardons. Upon conviction for treason he shall have the power
to suspend the execution of the sentence until the case shall be (b) The rejected part of an appropriation bill, together with
reported to the legislature at its next meeting, when the legisla- the governor’s objections in writing, shall be returned to the
ture shall either pardon, or commute the sentence, direct the exe- house in which the bill originated. The house of origin shall
cution of the sentence, or grant a further reprieve. He shall annu- enter the objections at large upon the journal and proceed to
ally communicate to the legislature each case of reprieve, reconsider the rejected part of the appropriation bill. If, after
commutation or pardon granted, stating the name of the convict, such reconsideration, two−thirds of the members present agree
the crime of which he was convicted, the sentence and its date, to approve the rejected part notwithstanding the objections of
and the date of the commutation, pardon or reprieve, with his the governor, it shall be sent, together with the objections, to the
reasons for granting the same. other house, by which it shall likewise be reconsidered, and if
Executive clemency in Wisconsin. Bauer, 1973 WLR 1154.
approved by two−thirds of the members present the rejected part
To Forgive, Divine: The Governor’s Pardoning Power. Bach. Wis. Law. Feb. shall become law.
2005. (c) In all such cases the votes of both houses shall be deter-
mined by ayes and noes, and the names of the members voting
Lieutenant governor, when governor. SECTION 7. [As for or against passage of the bill or the rejected part of the bill
amended April 1979] (1) Upon the governor’s death, resigna- notwithstanding the objections of the governor shall be entered
tion or removal from office, the lieutenant governor shall on the journal of each house respectively.
become governor for the balance of the unexpired term.
(3) Any bill not returned by the governor within 6 days (Sun-
(2) If the governor is absent from this state, impeached, or days excepted) after it shall have been presented to the governor
from mental or physical disease, becomes incapable of perform- shall be law unless the legislature, by final adjournment, pre-
ing the duties of the office, the lieutenant governor shall serve vents the bill’s return, in which case it shall not be law. [1905 J.R.
as acting governor for the balance of the unexpired term or until 14, 1907 J.R. 13, 1907 c. 661, vote Nov. 1908; 1927 J.R. 37, 1929
the governor returns, the disability ceases or the impeachment J.R. 43, vote Nov. 1930; 1987 A.J.R. 71, 1989 S.J.R. 11, vote
is vacated. But when the governor, with the consent of the legis- April 1990; 2005 J.R. 46, 2007 J.R. 26, vote April 2008]
lature, shall be out of this state in time of war at the head of the In determining whether the governor has acted in 6 days, judicial notice may be
state’s military force, the governor shall continue as commander taken of the chief clerk’s records to establish the date the bill was presented to the
in chief of the military force. [1977 J.R. 32, 1979 J.R. 3, vote governor. State ex rel. General Motors Corp. v. Oak Creek, 49 Wis. 2d 299, 182
N.W.2d 481.
April 1979] The governor may veto individual words, letters and digits, and may also reduce
The meaning of “absence” is discussed. 68 Atty. Gen. 109. appropriations by striking digits, as long as what remains after the veto is a com-
plete, entire, and workable law. Wis. Senate v. Thompson, 144 Wis. 2d 429, 424
Secretary of state, when governor. SECTION 8. [As N.W.2d 385 (1988).
The governor may approve part of an appropriation bill by reducing the amount
amended April 1979] (1) If there is a vacancy in the office of of money appropriated by striking a number and writing in a smaller one. This
lieutenant governor and the governor dies, resigns or is removed power extends only to monetary figures and is not applicable outside the context

of reducing appropriations. Citizens Utility Board v. Klauser, 194 Wis. 2d 485, 534 (2), coroners, registers of deeds, district attorneys, and all other
N.W.2d 608 (1995).
The governor may not disapprove of parts of legislation by writing in new num-
elected county officers, except judicial officers, sheriffs, and
bers except when the disapproved part is a monetary figure that expresses an chief executive officers, shall be chosen by the electors of the
appropriation amount in an appropriation bill. Figures that are not appropriation respective counties once in every 2 years.
amounts but are closely related to appropriation amounts are not subject to such a
“write−in” veto. Risser v. Klauser, 207 Wis. 2d 176, 558 N.W.2d 108 (1997), (b) Beginning with the first general election at which the gov-
96−0042. ernor is elected which occurs after the ratification of this para-
The taking of yea and nay votes and the entry on the journals of the senate and graph, sheriffs shall be chosen by the electors of the respective
assembly can be complied with by recording the total aye vote together with a list-
ing of the names of those legislators who voted no, were absent or not voting or counties, or by the electors of all of the respective counties com-
were paired on the question. Art. V, sec. 10; Art. VIII, sec. 8; Art. XII, sec. 1 dis- prising each combination of counties combined by the legisla-
cussed. 63 Atty. Gen. 346. ture for that purpose, for the term of 4 years and coroners in
The governor may not alter partial vetoes once the approved portion of the act
has been delivered to the secretary of state and the disapproved portion returned to counties in which there is a coroner shall be chosen by the elec-
the house of origin. 70 Atty. Gen. 154. tors of the respective counties, or by the electors of all of the
Failure of the governor to express objections to several possible partial vetoes respective counties comprising each combination of counties
of the 1981−82 budget bill made any such possible vetoes ineffective. 70 Atty. Gen.
189. combined by the legislature for that purpose, for the term of 4
The governor’s partial veto of section 1117g of 1991 Wis. Act 269 did not result years.
in a complete and workable law and was invalid. Because the governor’s approval (c) Beginning with the first general election at which the
was not necessary for the bill to become law, the invalidity of the partial veto
resulted in s. 605.35 being enforced as passed by the legislature. 80 Atty. Gen. 327. president is elected which occurs after the ratification of this
The partial veto power violates no federal constitutional provision. Risser v. paragraph, district attorneys, registers of deeds, county clerks,
Thompson, 930 F.2d 549 (1991). and treasurers shall be chosen by the electors of the respective
Wisconsin partial veto. 1989 WLR 1395 (1989). counties, or by the electors of all of the respective counties com-
The Origin and Evolution of the Partial Veto Power. Wade. Wis. Law. March
2008. prising each combination of counties combined by the legisla-
ture for that purpose, for the term of 4 years and surveyors in
counties in which the office of surveyor is filled by election shall
ARTICLE VI. be chosen by the electors of the respective counties, or by the
electors of all of the respective counties comprising each com-
ADMINISTRATIVE bination of counties combined by the legislature for that pur-
pose, for the term of 4 years.
Election of secretary of state, treasurer and attor- (2) The offices of coroner and surveyor in counties having
ney general; term. SECTION 1. [As amended April 1979] The a population of 500,000 or more are abolished. Counties not
qualified electors of this state, at the times and places of choos- having a population of 500,000 shall have the option of retaining
ing the members of the legislature, shall in 1970 and every 4 the elective office of coroner or instituting a medical examiner
years thereafter elect a secretary of state, treasurer and attorney system. Two or more counties may institute a joint medical
general who shall hold their offices for 4 years. [1977 J.R. 32, examiner system.
1979 J.R. 3, vote April 1979] (3) (a) Sheriffs may not hold any other partisan office.
Secretary of state; 4−year term. SECTION 1m. [Created (b) Sheriffs may be required by law to renew their security
April 1967; repealed April 1979; see 1965 J.R. 80, 1967 J.R. 10 from time to time, and in default of giving such new security
and 15, vote April 1967; 1977 J.R. 32, 1979 J.R. 3, vote April their office shall be deemed vacant.
1979.] (4) The governor may remove any elected county officer
mentioned in this section except a county clerk, treasurer, or sur-
Treasurer; 4−year term. Section 1n. [Created April 1967; veyor, giving to the officer a copy of the charges and an opportu-
repealed April 1979; see 1965 J.R. 80, 1967 J.R. 10 and 15, vote nity of being heard.
April 1967; 1977 J.R. 32, 1979 J.R. 3, vote April 1979.] (5) All vacancies in the offices of coroner, register of deeds
or district attorney shall be filled by appointment. The person
Attorney general; 4−year term. Section 1p. [Created appointed to fill a vacancy shall hold office only for the unex-
April 1967; repealed April 1979; see 1965 J.R. 80, 1967 J.R. 10 pired portion of the term to which appointed and until a succes-
and 15, vote April 1967; 1977 J.R. 32, 1979 J.R. 3, vote April sor shall be elected and qualified.
1979.]
(6) When a vacancy occurs in the office of sheriff, the
Secretary of state; duties, compensation. SECTION 2. vacancy shall be filled by appointment of the governor, and the
[As amended Nov. 1946] The secretary of state shall keep a fair person appointed shall serve until his or her successor is elected
record of the official acts of the legislature and executive depart- and qualified. [1881 J.R. 16A, 1882 J.R. 3, 1882 c. 290, vote
ment of the state, and shall, when required, lay the same and all Nov. 1882; 1927 J.R. 24, 1929 J.R. 13, vote April 1929; 1959
matters relative thereto before either branch of the legislature. J.R. 68, 1961 J.R. 64, vote Nov. 6, 1962; 1963 J.R. 30, 1965 J.R.
He shall perform such other duties as shall be assigned him by 5, vote April 1965; 1965 J.R. 61, 1967 J.R. 12, vote April 1967;
law. He shall receive as a compensation for his services yearly 1969 J.R. 33, 1971 J.R. 21, vote April 1972; 1979 J.R. 38, 1981
such sum as shall be provided by law, and shall keep his office J.R. 15, vote April 1982; 1995 J.R. 23, 1997 J.R. 18, vote Novem-
at the seat of government. [1943 J.R. 60, 1945 J.R. 73, vote Nov. ber 1998; 2003 J.R. 12, 2005 J.R. 2, vote April 2005]
1946] This section does not bar a county from assisting in the defense of actions
brought against the sheriff as a result of the sheriff’s official acts. Bablitch and
Bablitch v. Lincoln County, 82 Wis. 2d 574, 263 N.W.2d 218.
Treasurer and attorney general; duties, compensa- Sheriff’s powers and duties are discussed. Professional Police Association. v.
tion. SECTION 3. The powers, duties and compensation of the Dane County, 106 Wis. 2d 303, 316 N.W.2d 656 (1982).
treasurer and attorney general shall be prescribed by law. A sheriff’s assignment of a deputy to an undercover drug investigation falls
within the constitutionally protected powers of the sheriff and could not be limited
The attorney general does not have authority to challenge the constitutionality by a collective bargaining agreement. Manitowoc Co. v. Local 986B, 168 Wis. 2d
of statutes. State v. City of Oak Creek, 223 Wis. 2d 219, 588 N.W.2d 380 (Ct. App. 819, 484 N.W.2d 534 (1992). See also Washington County v. Deputy Sheriff’s
1998), 97−2188. Association, 192 Wis. 2d 728, 531 N.W.2d 468 (Ct. App. 1995).
The powers of the attorney general in Wisconsin. Van Alstyne, Roberts, 1974 The sheriff’s power to appoint, dismiss, or demote a deputy is not constitution-
WLR 721. ally protected and may be limited by a collective bargaining agreement not in con-
flict with the statutes. Heitkemper v. Wirsing, 194 Wis. 2d 182, 533 N.W.2d 770
County officers; election, terms, removal; vacan- (1995). See also Brown County Sheriff Dept. v. Employees Association, 194 Wis.
cies. SECTION 4. [As amended Nov. 1882, April 1929, Nov. 1962, 2d 266, 533 N.W.2d 766 (1995).
The power to hire does not give character and distinction to the office of sheriff;
April 1965, April 1967, April 1972, April 1982, Nov. 1998, April it is not a power peculiar to the office. Certain duties of the sheriff at common law
2005] (1) (a) Except as provided in pars. (b) and (c) and sub. that are peculiar to the office and that characterize and distinguish the office are

constitutionally protected from legislative interference, but the constitution does wide jurisdiction as the legislature may create by law, and a
not prohibit all legislative change in the powers and duties of a sheriff as they
existed at common law. Internal management and administrative duties that neither municipal court if authorized by the legislature under section 14.
give character nor distinction to the office fall within the mundane and common [1963 J.R. 48, 1965 J.R. 50, vote April 1966; 1975 J.R. 13, 1977
administrative duties that may be regulated by the legislature. Hiring and firing J.R. 7, vote April 1977]
personnel to provide food to inmates is subject to legislative regulation, including
collective bargaining under s. 111.70. Kocken v. Wisconsin Council 40 AFSCME, The Shawano−Menominee court was a constitutional district court since Meno-
2007 WI 72, 301 Wis. 2d 266, 732 N.W.2d 828, 05−2742. minee county was not organized for judicial purposes. Pamanet v. State, 49 Wis.
The assignment of deputies to transport federal and state prisoners to and from 2d 501, 182 N.W.2d 459.
a county jail pursuant to a contract for the rental of bed space was not a constitution- If s. 425.113 were to be interpreted so as to remove a court’s power to issue a
ally protected duty of the sheriff’s office and was thus subject to the restrictions of body attachment for one who chooses to ignore its orders, that interpretation would
a collective bargaining agreement. Ozaukee County v. Labor Association of Wis- cause the statute to be unconstitutional as a violation of the principle of separation
consin, 2008 WI App 174, 315 Wis. 2d 102, 763 N.W.2d 140, 07−1615. of powers. Smith v. Burns, 65 Wis. 2d 638, 223 N.W.2d 562.
A sheriff may not be restricted in whom he or she assigns to carry out his or her Courts have no inherent power to stay or suspend the execution of a sentence in
constitutional duties if he or she is performing immemorial, principal, and impor- the absence of statutory authority. A court’s refusal to impose a legislatively man-
tant duties characterized as belonging to the sheriff at common law. Attending on dated sentence constitutes an abuse of discretion and usurpation of the legislative
the courts is one of the duties preserved for the sheriff by the constitution. When field. State v. Sittig, 75 Wis. 2d 497, 249 N.W.2d 770.
a sheriff effects the delivery of prisoners pursuant to court−issued writs, the sheriff WERC is authorized by s. 111.06 (1) (L) to determine whether conduct in viola-
is attending on the court. The sheriff could contract with a private entity for the tion of criminal law has occurred, which is not a delegation of judicial power in
transportation of prisoners, rather than utilizing deputies employed by the sheriffs violation of Art. VII, sec. 2 nor does the administrative procedure violate Art. I, sec.
department. Brown County Sheriffs Dept. Non−Supervisory Labor Association v. 8. Layton School of Art & Design v. WERC, 82 Wis. 2d 324, 262 N.W.2d 218.
Brown County, 2009 WI App 75, 318 Wis. 2d 774, 767 N.W.2d 600, 08−2069. Courts have no inherent power to dismiss a criminal complaint with prejudice
Staffing an x−ray and metal detector security screening station is not one of those prior to attachment of jeopardy. State v. Braunsdorf, 92 Wis. 2d 849, 286 N.W.2d
“certain immemorial, principal, and important duties of the sheriff at common law 14 (Ct. App. 1979).
that are peculiar to the office of sheriff” and is not part of the sheriff’s constitution- The highest standard of proof of an articulated compelling need must be met
ally protected powers that cannot be limited by a collective bargaining agreement. before a court will order the expenditure of public funds for its own needs. Flynn
Washington County v. Washington County Deputy Sheriff’s Association, 2009 WI v. Department of Administration, 216 Wis. 2d 521, 576 N.W.2d 245 (1998),
App 116, 320 Wis. 2d 570, 772 N.W.2d 697, 08−1210. 96−3266.
The transport of individuals in conjunction with the service or execution of all Judicial assistants are subject to the judiciary’s exclusive authority once
processes, writs, precepts, and orders constitute immemorial, principal and impor- appointed. Any collective bargaining agreement between a county and employee’s
tant duties that characterize and distinguish the office of sheriff and fall within the union that provides for possible “bumping” of the assistant by another employee
sheriff’s constitutional powers, rights, and duties. As such, the sheriff has the con- and final and binding arbitration regarding disputes over bumping is an unconstitu-
stitutional authority to determine how to carry out those duties and can elect to pri- tional infringement on the court’s inherent powers. Barland v. Eau Claire County,
vatize those duties. That s. 59.26 (4) specifically directs that the sheriff must act 216 Wis. 2d 560, 575 N.W.2d 691 (1998), 96−1607.
personally or by means of his undersheriff or deputies is not persuasive. The simple Probation and probation revocation are within the powers shared by the branches
fact that the legislature codified a duty and responsibility of the sheriff, like provid- of government. Legislative delegation of revocation to the executive branch does
ing food for jail inmates, does not strip sheriffs of any constitutional protections not unduly burden or substantially interfere with the judiciary’s constitutional func-
they may have regarding this duty. Milwaukee Deputy Sheriff’s Association v. tion to impose criminal penalties. State v. Horn, 226 Wis. 2d 637, 594 N.W.2d 772
Clarke, 2009 WI App 123, 320 Wis. 2d 486, 772 N.W.2d 216, 08−2290. (1999), 97−2751.
An entity characterized as the “office of the district attorney” or “district attor- A court’s inherent powers are those that must be used to enable the judiciary to
ney,” separate from the elected official, does not have authority to sue or be sued. accomplish its constitutional or statutory functions and include the power to main-
Buchanan v. City of Kenosha, 57 F. Supp. 2d 675 (1999). tain the dignity of the court, transact its business, or accomplish the purpose of its
Implementation legislation is necessary before counties under 500,000 may existence. Courts have inherent power to investigate claims that a party is engaging
abolish the office of coroner. 61 Atty. Gen. 355. in fraudulent behavior or improperly influencing witnesses, and a court is within
A county board in a county under 500,000 can abolish the elective office of coro- its authority to hold an evidentiary hearing on such matters. Schultz v. Sykes, 2001
ner and implement a medical examiner system to be effective at the end of incum- WI App 255, 248 Wis. 2d 746, 638 N.W.2d 604, 00−0915.
bent coroner’s term. Language in 61 Atty. Gen. 355 inconsistent herewith is with- In mental hearings under 51.02, 1973 stats., or alcohol or drug abuse hearings
drawn. 63 Atty. Gen. 361. under 51.09 (1), 1973 stats., the power to appoint an attorney at public expense, to
This section does not immunize counties from liability for their own acts. Soder- determine indigency and to fix compensation are judicial and must be exercised by
beck v. Burnett County, Wis. 752 F.2d 285 (1985). the court or under its direction and cannot be limited by the county board or dele-
A county sheriff is an officer of the state, not county, when fulfilling constitu- gated to a private nonprofit corporation. 63 Atty. Gen. 323.
tional obligations. Soderbeck v. Burnett County, Wis. 821 F.2d 446 (7th Cir. 1987). Unless acting in a clear absence of all jurisdiction, judges are immune from
A sheriff represents the county when enforcing the law. Sovereign immunity for liability for judicial acts, even when such acts are in excess of their jurisdiction and
state officials under the 11th amendment to the U.S. constitution does not apply. are alleged to have been done maliciously or corruptly. Stump v. Sparkman, 435
Abraham v. Piechowski, 13 F Supp 2d 870 (1998). U.S. 349 (1978).
An integrated state bar’s use of mandatory dues to fund political or ideological
activities violates free speech provisions. Keller v. State Bar of California, 496 U.S.
ARTICLE VII. 226, 110 L. Ed. 2d 1 (1990).
Court reform of 1977: The Wisconsin supreme court ten years later. Bablitch.
72 MLR 1 (1988).
JUDICIARY The separation of powers control of courts and lawyers. Currie, Resh, 1974
WBB No. 6.
Impeachment; trial. SECTION 1. [As amended Nov. 1932]
The court for the trial of impeachments shall be composed of the Supreme court: jurisdiction. SECTION 3. [As amended
senate. The assembly shall have the power of impeaching all April 1977] (1) The supreme court shall have superintending
civil officers of this state for corrupt conduct in office, or for and administrative authority over all courts.
crimes and misdemeanors; but a majority of all the members (2) The supreme court has appellate jurisdiction over all
elected shall concur in an impeachment. On the trial of an courts and may hear original actions and proceedings. The
impeachment against the governor, the lieutenant governor shall supreme court may issue all writs necessary in aid of its jurisdic-
not act as a member of the court. No judicial officer shall exer- tion.
cise his office, after he shall have been impeached, until his (3) The supreme court may review judgments and orders of
acquittal. Before the trial of an impeachment the members of the the court of appeals, may remove cases from the court of appeals
court shall take an oath or affirmation truly and impartially to try and may accept cases on certification by the court of appeals.
the impeachment according to evidence; and no person shall be [1975 J.R. 13, 1977 J.R. 7, vote April 1977]
convicted without the concurrence of two−thirds of the mem- The authority of supreme court to review and modify criminal sentences is dis-
bers present. Judgment in cases of impeachment shall not cussed. Riley v. State, 47 Wis. 2d 801, 177 N.W.2d 838.
extend further than to removal from office, or removal from The supreme court’s authority to issue a writ of error is not dependent upon a spe-
cific legislative enactment, but the constitution and statutes relating to its appellate
office and disqualification to hold any office of honor, profit or jurisdiction give it the authority to issue such writs as are necessary to exercise its
trust under the state; but the party impeached shall be liable to appellate jurisdiction. Shave v. State, 49 Wis. 2d 379, 182 N.W.2d 505.
indictment, trial and punishment according to law. [1929 J.R. 72, A writ of error coram nobis cannot be used for the purpose of producing newly
discovered evidence affecting only the credibility of a confession. Mikulovsky v.
1931 J.R. 58, vote Nov. 1932] State, 54 Wis. 2d 699, 196 N.W.2d 748.
The supreme court exercises an inherent supervisory power over the practice of
Court system. SECTION 2. [As amended April 1966 and the law and this can be more effectively exercised with an independent review.
April 1977] The judicial power of this state shall be vested in a Contrary language, if any, in prior cases withdrawn. Herro, McAndrews & Porter
v. Gerhardt, 62 Wis. 2d 179, 214 N.W.2d 401.
unified court system consisting of one supreme court, a court of The supreme court declines to adopt the equitable doctrine of “substituted judg-
appeals, a circuit court, such trial courts of general uniform statement” under which a court substitutes its judgment for that of a person incompetent

to arrive at a decision for himself or herself. In re Guardianship of Pescinski, 67 have no original jurisdiction other than by prerogative writ. The
Wis. 2d 4, 226 N.W.2d 180.
Adoption by the supreme court of a rule 17 requiring annual financial disclosure
appeals court may issue all writs necessary in aid of its jurisdic-
by judges of assets and liabilities was valid and enforceable under the court’s inher- tion and shall have supervisory authority over all actions and
ent power to function as the supreme court and under the court’s general superin- proceedings in the courts in the district. [1975 J.R. 13, 1977 J.R.
tending control over all inferior courts. In re Hon. Charles E. Kading, 70 Wis. 2d 7, vote April 1977]
508, 235 N.W.2d 409.
A declaration of rights is an appropriate vehicle for the exercise of superintend- The court of appeals does not have jurisdiction to entertain an original action
ing control over inferior courts. State ex rel. Memmel v. Mundy, 75 Wis. 2d 276, unrelated to its supervisory or appellate authority over circuit courts. State ex rel.
249 N.W.2d 573. Swan v. Elections Board, 133 Wis. 2d 87, 394 N.W.2d 732 (1986).
The supreme court has power to formulate and carry into effect a court system The court of appeals is authorized to exercise its supervisory authority over a
budget. Moran v. Dept. of Admin. 103 Wis. 2d 311, 307 N.W.2d 658 (1981). chief judge who is ruling on a substitution request. James L.J. v. Walworth County
Circuit Court, 200 Wis. 2d 496, 546 N.W.2d 460 (1996), 94−2043.
The court will invalidate legislation only for constitutional violations. State ex Only the supreme court has the power to overrule, modify, or withdraw language
rel. La Follette v. Stitt, 114 Wis. 2d 358, 338 N.W.2d 684 (1983). from a published opinion of the court of appeals. Cook v. Cook, 208 Wis. 2d 166,
A statute that required the withholding of a judge’s salary for failure to decide 560 N.W.2d 246 (1997), 95−1963.
cases within a specified time was an unconstitutional intrusion by the legislature A Shift in the Bottleneck: The Appellate Caseload Problem Twenty Years After
into an area of exclusive judicial authority. In Matter of Complaint Against Grady, the Creation of the Wisconsin Court of Appeals. Garlys. 1998 WLR 1547.
118 Wis. 2d 762, 348 N.W.2d 559 (1984).
When confronted with a direct conflict between a decision of the state supreme
court and a later decision of the U.S. Supreme Court on a matter of federal law, the Circuit court: boundaries. SECTION 6. [As amended April
court of appeals may certify the case to the state supreme court under s. 809.61. 1977] The legislature shall prescribe by law the number of judi-
If it does not, or certification is not accepted, the supremacy clause of the U.S. Con- cial circuits, making them as compact and convenient as practi-
stitution compels adherence to U.S. Supreme Court precedent on matters of federal
law, although it means deviating from a conflicting decision of the state supreme cable, and bounding them by county lines. No alteration of cir-
court. State v. Jennings, 2002 WI 44, 252 Wis. 2d 228, 647 N.W.2d 142, 00−1680. cuit boundaries shall have the effect of removing a circuit judge
The Virginia supreme court was not immune from suit under s. 1983. Supreme from office during the judge’s term. In case of an increase of cir-
Court of Virginia v. Consumers Union, 446 U.S. 719 (1980).
Inherent power and administrative court reform. 58 MLR 133.
cuits, the first judge or judges shall be elected. [1975 J.R. 13,
1977 J.R. 7, vote April 1977]
Supreme court: election, chief justice, court system Circuit court: election. SECTION 7. [As amended April
administration. SECTION 4. [As amended Nov. 1877, April 1897, Nov. 1924 and April 1977] For each circuit there shall be
1889, April 1903 and April 1977] (1) The supreme court shall chosen by the qualified electors thereof one or more circuit
have 7 members who shall be known as justices of the supreme judges as prescribed by law. Circuit judges shall be elected for
court. Justices shall be elected for 10−year terms of office com- 6−year terms and shall reside in the circuit from which elected.
mencing with the August 1 next succeeding the election. Only [1895 J.R. 8, 1897 J.R. 9, 1897 c. 69, vote April 1897; 1921 J.R.
one justice may be elected in any year. Any 4 justices shall 24S, 1923 J.R. 64, 1923 c. 408, vote Nov. 1924; 1975 J.R. 13,
constitute a quorum for the conduct of the court’s business. 1977 J.R. 7, vote April 1977]
(2) The justice having been longest a continuous member of
said court, or in case 2 or more such justices shall have served Circuit court: jurisdiction. SECTION 8. [As amended April
for the same length of time, the justice whose term first expires, 1977] Except as otherwise provided by law, the circuit court
shall be the chief justice. The justice so designated as chief jus- shall have original jurisdiction in all matters civil and criminal
tice may, irrevocably, decline to serve as chief justice or resign within this state and such appellate jurisdiction in the circuit as
as chief justice but continue to serve as a justice of the supreme the legislature may prescribe by law. The circuit court may issue
court. all writs necessary in aid of its jurisdiction. [1975 J.R. 13, 1977
(3) The chief justice of the supreme court shall be the admin- J.R. 7, vote April 1977]
istrative head of the judicial system and shall exercise this Although prohibition is not the appropriate remedy to suppress prosecution on
an illegal search warrant, the supreme court treated the case as a petition for habeas
administrative authority pursuant to procedures adopted by the corpus. State ex rel. Furlong v. Waukesha County Court, 47 Wis. 2d 515, 177
supreme court. The chief justice may assign any judge of a court N.W.2d 333.
of record to aid in the proper disposition of judicial business in Certiorari cannot be used to upset the legislative discretion of a city council but
the court should review the council’s action to determine whether there was a ratio-
any court of record except the supreme court. [1876 J.R. 10, nal factual basis for it. The review is limited to the record consisting of the petition
1877 J.R. 1, 1877 c. 48, vote Nov. 1877; 1887 J.R. 5, 1889 J.R. and the return to the writ, plus matters of which the court could take judicial notice.
3, 1889 c. 22, vote April 1889; 1901 J.R. 8, 1903 J.R. 7, 1903 c. State ex rel. Hippler v. Baraboo, 47 Wis. 2d 603, 178 N.W.2d 1.
10, vote April 1903; 1975 J.R. 13, 1977 J.R. 7, vote April 1977] A writ of prohibition may not be used to test the admissibility of evidence at an
impending trial. State ex rel. Cortez v. Bd. of F. & P. Comm. 49 Wis. 2d 130, 181
Voting and Electoral Politics in the Wisconsin Supreme Court. Czarnezki. 87 N.W.2d 378.
MLR 323.
Jurisdiction depends not on whether the relief asked for is available, but on
whether the court has the power to hear the kind of action brought. It is not defeated
Judicial circuits. SECTION 5. [Repealed April 1977; see by the possibility that averments in a complaint might fail to state a cause of action,
1975 J.R. 13, 1977 J.R. 7, vote April 1977.] for any such failure calls for a judgment on the merits not for a dismissal for want
of jurisdiction. Murphy v. Miller Brewing Co. 50 Wis. 2d 323, 184 N.W.2d 141.
Mandamus is a discretionary writ and the order of a trial court refusing to quash
Court of appeals. SECTION 5. [As created April 1977] it will not be reversed except for an abuse of discretion. A court can treat it as a
motion for declaratory relief. Milwaukee County v. Schmidt, 52 Wis. 2d 58, 187
(1) The legislature shall by law combine the judicial circuits of N.W.2d 777.
the state into one or more districts for the court of appeals and Differences between common law and statutory certiorari are discussed. Brown-
shall designate in each district the locations where the appeals dale International v. Board of Adjustment, 60 Wis. 2d 182, 208 N.W.2d 121.
court shall sit for the convenience of litigants. The statutory designation of circuit court branches as criminal court branches
does not deprive other branches of criminal jurisdiction. Dumer v. State, 64 Wis.
(2) For each district of the appeals court there shall be cho- 2d 590, 219 N.W.2d 592.
sen by the qualified electors of the district one or more appeals Circuit court review of a decision of the city of Milwaukee Board of Fire and
Police Commissioners was proper via writ of certiorari. Edmonds v. Board of Fire
judges as prescribed by law, who shall sit as prescribed by law. & Police Commrs. 66 Wis. 2d 337, 224 N.W.2d 575.
Appeals judges shall be elected for 6−year terms and shall reside A judge having jurisdiction of the person and subject matter involved and acting
in the district from which elected. No alteration of district or cir- within that jurisdiction and in his or her judicial capacity, is exempt from civil liabil-
cuit boundaries shall have the effect of removing an appeals ity. Abdella v. Catlin, 79 Wis. 2d 270, 255 N.W.2d 516.
The circuit courts are constitutional courts with plenary jurisdiction. They do not
judge from office during the judge’s term. In case of an increase depend solely upon statute for their powers. However in certain cases with vast
in the number of appeals judges, the first judge or judges shall social ramifications not addressed by statute, prudence requires the courts to refuse
be elected for full terms unless the legislature prescribes a to exercise their jurisdiction. As such, circuit courts are prohibited from exercising
jurisdiction regarding sterilization of incompetents. In Matter of Guardianship of
shorter initial term for staggering of terms. Eberhardy, 102 Wis. 2d 539, 307 N.W.2d 881 (1981).
(3) The appeals court shall have such appellate jurisdiction Because courts have exclusive criminal jurisdiction, criminal charges against the
defendant were not collaterally estopped even though a parole revocation hearing
in the district, including jurisdiction to review administrative examiner concluded that defendant’s acts did not merit parole revocation. State v.
proceedings, as the legislature may provide by law, but shall Spanbauer, 108 Wis. 2d 548, 322 N.W.2d 511 (Ct. App. 1982).

While circuit courts possess plenary jurisdiction not dependent upon legislative (4) The clerk of circuit court shall give such security as the
authorization, under some circumstances they may lack competency to act. Interest
of L.M.C. 146 Wis. 2d 377, 430 N.W.2d 352 (Ct. App. 1988). legislature requires by law.
Challenges to a circuit court’s competency are waived if not raised in the circuit (5) The supreme court shall appoint its own clerk, and may
court, subject to the reviewing court’s inherent authority to overlook a waiver in appoint a clerk of circuit court to be the clerk of the supreme
appropriate cases or engage in discretionary review of a waived competency chal-
lenge pursuant to ss. 751.06 or 752.35. Lack of competency is not jurisdictional court. [1881 J.R. 16A, 1882 J.R. 3, 1882 c. 290, vote Nov. 1882;
and does not result in a void judgment. Accordingly, it is not true that a motion for 2003 J.R. 12, 2005 J.R. 2, vote April 2005]
relief from judgment on grounds of lack of circuit court competency may be made
at any time. Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681
N.W.2d 190, 03−0534. Justices and judges: removal by address. SECTION
13. [As amended April 1974 and April 1977] Any justice or
Judicial elections, vacancies. SECTION 9. [As amended judge may be removed from office by address of both houses of
April 1953 and April 1977] When a vacancy occurs in the office the legislature, if two−thirds of all the members elected to each
of justice of the supreme court or judge of any court of record, house concur therein, but no removal shall be made by virtue of
the vacancy shall be filled by appointment by the governor, this section unless the justice or judge complained of is served
which shall continue until a successor is elected and qualified. with a copy of the charges, as the ground of address, and has had
There shall be no election for a justice or judge at the partisan an opportunity of being heard. On the question of removal, the
general election for state or county officers, nor within 30 days ayes and noes shall be entered on the journals. [1971 J.R. 30,
either before or after such election. [1951 J.R. 41, 1953 J.R. 12, 1973 J.R. 25, vote April 1974; 1975 J.R. 13, 1977 J.R. 7, vote
vote April 1953; 1975 J.R. 13, 1977 J.R. 7, vote April 1977] April 1977]
Municipal court. SECTION 14. [As amended April 1977]
Judges: eligibility to office. SECTION 10. [As amended The legislature by law may authorize each city, village and town
Nov. 1912 and April 1977] (1) No justice of the supreme court to establish a municipal court. All municipal courts shall have
or judge of any court of record shall hold any other office of pub- uniform jurisdiction limited to actions and proceedings arising
lic trust, except a judicial office, during the term for which under ordinances of the municipality in which established.
elected. No person shall be eligible to the office of judge who Judges of municipal courts may receive such compensation as
shall not, at the time of election or appointment, be a qualified provided by the municipality in which established, but may not
elector within the jurisdiction for which chosen. receive fees of office. [1975 J.R. 13, 1977 J.R. 7, vote April
(2) Justices of the supreme court and judges of the courts of 1977]
record shall receive such compensation as the legislature may A municipal court has authority to determine the constitutionality of a municipal
authorize by law, but may not receive fees of office. [1909 J.R. ordinance. City of Milwaukee v. Wroten, 160 Wis. 2d 207, 466 N.W.2d 861 (1991).
34, 1911 J.R. 24, 1911 c. 665, vote Nov. 1912; 1975 J.R. 13, 1977
J.R. 7, vote April 1977] Justices of the peace. SECTION 15. [Amended April 1945;
Sub. (1) prohibits a circuit judge from holding a nonjudicial office of public trust repealed April 1966; see 1943 J.R. 27, 1945 J.R. 2, vote April
during the full period of time for which he or she is elected to serve in a judicial 1945; 1963 J.R. 48, 1965 J.R. 50, vote April 1966.]
position, even if the judge chooses to resign before that term would otherwise
expire. The period of time constituting the “term for which elected” is set when a Tribunals of conciliation. SECTION 16. [Repealed April
judge or justice is elected, and is thereafter unalterable by means of resignation.
Wagner v. Milwaukee County Election Commission, 2003 WI 103, 263 Wis. 2d 1977; see 1975 J.R. 13, 1977 J.R. 7, vote April 1977.]
709, 666 N.W.2d 816, 02−0375.
An “office of public trust” does not refer only to an elective office. “Judicial Style of writs; indictments. SECTION 17. [Repealed April
office,” as used in Article VII, should be construed as referring to an office that is 1977; see 1975 J.R. 13, 1977 J.R. 7, vote April 1977.]
located within the judicial branch of government created by that article. Member-
ship on the government accountability board is an office of public trust but is not
a judicial office within the meaning of Art. VII, s. 10, and therefore an individual Suit tax. SECTION 18. [Repealed April 1977; see 1975 J.R.
who has resigned from the office of judge may not serve as a member of the board 13, 1977 J.R. 7, vote April 1977.]
for the duration of the term to which the individual was elected to serve as a judge.
OAG 4−08.
Testimony in equity suits; master in chancery. SEC-
Terms of courts; change of judges. SECTION 11. TION 19. [Repealed April 1977; see 1975 J.R. 13, 1977 J.R. 7,
[Repealed April 1977; see 1975 J.R. 13, 1977 J.R. 7, vote April vote April 1977.]
1977.] Rights of suitors. SECTION 20. [Repealed April 1977; see
1975 J.R. 13, 1977 J.R. 7, vote April 1977.] See Art. I, sec. 21.
Disciplinary proceedings. SECTION 11. [As created April
1977] Each justice or judge shall be subject to reprimand, cen- Publication of laws and decisions. SECTION 21.
sure, suspension, removal for cause or for disability, by the [Repealed April 1977; see 1975 J.R. 13, 1977 J.R. 7, vote April
supreme court pursuant to procedures established by the legisla- 1977.] See Art. IV, sec. 17.
ture by law. No justice or judge removed for cause shall be eligi-
ble for reappointment or temporary service. This section is alter- Commissioners to revise code of practice. SECTION
native to, and cumulative with, the methods of removal provided 22. [Repealed April 1977; see 1975 J.R. 13, 1977 J.R. 7, vote
in sections 1 and 13 of this article and section 12 of article XIII. April 1977.]
[1975 J.R. 13, 1977 J.R. 7, vote April 1977]
Court commissioners. SECTION 23. [Repealed April
1977; see 1975 J.R. 13, 1977 J.R. 7, vote April 1977.]
Clerks of circuit and supreme courts. SECTION 12. [As
amended Nov. 1882, April 2005] (1) There shall be a clerk of Justices and judges: eligibility for office; retire-
circuit court chosen in each county organized for judicial pur- ment. SECTION 24. [As created April 1955 and amended April
poses by the qualified electors thereof, who, except as provided 1968 and April 1977] (1) To be eligible for the office of
in sub. (2), shall hold office for two years, subject to removal as supreme court justice or judge of any court of record, a person
provided by law. must be an attorney licensed to practice law in this state and have
(2) Beginning with the first general election at which the been so licensed for 5 years immediately prior to election or
governor is elected which occurs after the ratification of this sub- appointment.
section, a clerk of circuit court shall be chosen by the electors of (2) Unless assigned temporary service under subsection (3),
each county, for the term of 4 years, subject to removal as pro- no person may serve as a supreme court justice or judge of a
vided by law. court of record beyond the July 31 following the date on which
(3) In case of a vacancy, the judge of the circuit court may such person attains that age, of not less than 70 years, which the
appoint a clerk until the vacancy is filled by an election. legislature shall prescribe by law.

(3) A person who has served as a supreme court justice or Delton, 210 Wis. 2d 301, 565 N.W.2d 230 (Ct. App. 1997). Affirmed 216 Wis. 2d
387, 573 N.W.2d 852 (1998), 96−1074.
judge of a court of record may, as provided by law, serve as a To prove a statute unconstitutional due to a violation of the uniformity clause,
judge of any court of record except the supreme court on a tem- a taxpayer must initially prove that his property has been overvalued while other
porary basis if assigned by the chief justice of the supreme court. property has been undervalued. Norquist v. Zeuske, 211 Wis. 2d 241, 564 N.W.2d
[1953 J.R. 46, 1955 J.R. 14, vote April 1955; 1965 J.R. 101, 748 (1997), 96−1812.
Sections 70.47 (13), 70.85, and 74.37 provide the exclusive method to challenge
1967 J.R. 22 and 56, vote April 1968; 1975 J.R. 13, 1977 J.R. 7, a municipality’s bases for assessment of individual parcels. All require appeal to
vote April 1977] the board of review prior to court action. There is no alternative procedure to chal-
lenge an assessment’s compliance with the uniformity clause. Hermann v. Town
of Delavan, 215 Wis. 2d 370, 572 N.W.2d 855 (1998), 96−0171.
The uniformity clause is limited to property taxes, recurring ad valorem taxes on
ARTICLE VIII. property, as opposed to transactional taxes such as those imposed on income or
sales. Telemark Development, Inc. v. DOR, 218 Wis. 2d 809, 581 N.W.2d 585 (Ct.
App. 1998), 97−3133.
FINANCE The supreme court has rejected challenges alleging violations of the rule of uni-
formity when the claim was based on comparing one taxpayer’s appraised value
to the value assigned to an inadequate number of other properties in the assessment
district. A lack of uniformity must be established by showing general undervalua-
Rule of taxation uniform; income, privilege and tion on a district−wide basis if the subject property has been assessed at full market
occupation taxes. SECTION 1. [As amended Nov. 1908, April value. Comparing the value attributed to only one component of the real property
1927, April 1941, April 1961 and April 1974] The rule of taxa- in a uniformity challenge is an analytical method also without support in statutes
or relevant case law. Taxes are levied on the value of the real property; not sepa-
tion shall be uniform but the legislature may empower cities, vil- rately on the components of land, or improvements, or other rights or limitations
lages or towns to collect and return taxes on real estate located of ownership. Allright Properties, Inc. v. City of Milwaukee, 2009 WI App 46, 317
therein by optional methods. Taxes shall be levied upon such Wis. 2d 228, 767 N.W.2d 567, 08−0510.
A partial exemption from property taxation, proposed for land conveyed to The
property with such classifications as to forests and minerals National Audubon Society, Inc., probably is unconstitutional under the equal
including or separate or severed from the land, as the legislature protection clause of the 14th amendment and the rule of uniformity. 61 Atty. Gen.
shall prescribe. Taxation of agricultural land and undeveloped 173.
land, both as defined by law, need not be uniform with the taxa- Competitive bidding for the issuance of a liquor license violates this section. 61
Atty. Gen. 180.
tion of each other nor with the taxation of other real property. A bill providing for a tax on all known commercially feasible low−grade iron ore
Taxation of merchants’ stock−in−trade, manufacturers’ materi- reserve deposits in Wisconsin, would appear to violate the uniformity of taxation
als and finished products, and livestock need not be uniform provisions of sec. 1. 63 Atty. Gen. 3.
with the taxation of real property and other personal property, A law providing that improvements to real property would be assessed as of the
date of completion of the improvements would be unconstitutional. 81 Atty. Gen.
but the taxation of all such merchants’ stock−in−trade, manufac- 94.
turers’ materials and finished products and livestock shall be
uniform, except that the legislature may provide that the value Appropriations; limitation. SECTION 2. [As amended Nov.
thereof shall be determined on an average basis. Taxes may also 1877] No money shall be paid out of the treasury except in pur-
be imposed on incomes, privileges and occupations, which taxes suance of an appropriation by law. No appropriation shall be
may be graduated and progressive, and reasonable exemptions made for the payment of any claim against the state except
may be provided. [1905 J.R. 12, 1907 J.R. 29, 1907 c. 661, vote claims of the United States and judgments, unless filed within
Nov. 1908; 1925 J.R. 62, 1927 J.R. 13, vote April 1927; 1939 six years after the claim accrued. [1876 J.R. 7, 1877 J.R. 4, 1877
J.R. 88, 1941 J.R. 18, vote April 1941; 1959 J.R. 78, 1961 J.R. c. 158, vote Nov. 1877]
13, vote April 1961; 1971 J.R. 39, 1973 J.R. 29, vote April 1974] The creation of a continuing appropriation by one legislature does not restrict a
While a sale establishes value, the assessment still has to be equal to that on com- subsequent legislature from reallocating the unexpended, unencumbered public
parable property. Sub. (2) (b) requires the assessor to fix a value before classifying funds subject to the original appropriation. Flynn v. Department of Administration,
the land. It does not prohibit the assessor from considering the zoning of the prop- 216 Wis. 2d 521, 576 N.W.2d 245 (1998), 96−3266.
erty when it is used for some other purpose. State ex rel. Hensel v. Town of Wilson, Although there is no specific clause in the constitution establishing the public
55 Wis. 2d 101, 197 N.W.2d 794. purpose doctrine, the doctrine is firmly accepted as a basic tenet of the constitution,
mandating that public appropriations may not be used for other than public pur-
The fact that land purchased for industrial development under s. 66.521, Stats. poses. Courts are to give great weight and afford very wide discretion to legislative
1969, [now s. 66.1103] and leased to a private person is not subject to a tax lien if declarations of public purpose, but are not bound by such legislative expressions.
taxes are not paid does not violate the uniformity provision. State ex rel. Hammer- It is the duty of the court to determine whether a public purpose can be conceived
mill Paper Co. v. La Plante, 58 Wis. 2d 32, 205 N.W.2d 784. that might reasonably justify the basis of the duty. Town of Beloit v. County of
The Housing Authority Act, in granting tax exemptions to bonds, does not vio- Rock, 2003 WI 8, 259 Wis. 2d 37, 657 N.W.2d 344, 00−1231.
late this section. State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 208 N.W.2d 780. Funds may not be used to construct a project that has not been provided for in
A law requiring a reduction in rent due to property tax relief does not violate the either the long−range building program or specifically described in the session
uniformity clause. It is not a tax law. State ex rel. Bldg. Owners v. Adamany, 64 laws. 61 Atty. Gen. 298.
Wis. 2d 280, 219 N.W.2d 274. The constitution does not preclude grants of state money to private parties for
The denial of equal protection claimed by the taxpayer, by reason of the exclu- the purpose of affording disaster relief under the Disaster Relief Act of 1974. An
sion from the “occasional sale” exemption of sellers holding permits was properly appropriation by the legislature is required, however, to provide the state funding
held by the trial court to be without merit. Ramrod, Inc. v. Dept. of Revenue, 64 contemplated by the Act. Federal advances under the Act are limited by Art. VIII,
Wis. 2d 499, 219 N.W.2d 604. sec. 6. 64 Atty. Gen. 39.
The income and property tax exemptions provided in the Solid Waste Recycling
Authority Act bear a reasonable relation to a legitimate end of governmental action
and therefore do not violate the Wisconsin Constitution, since the exemptions Credit of state. SECTION 3. [As amended April 1975] Except
allow for reduction in user charges and in the cost of capital needs, thereby benefit- as provided in s. 7 (2) (a), the credit of the state shall never be
ing the state’s citizens by promoting use of the Authority’s facilities. Wisconsin given, or loaned, in aid of any individual, association or corpora-
Solid Waste Recycling Auth. v. Earl, 70 Wis. 2d 464, 235 N.W.2d 648.
Negative−aid provisions of school district financing, as mandated by 121.07 and tion. [1973 J.R. 38, 1975 J.R. 3, vote April 1975]
121.08, Stats. (1973), are violative of the rule of uniform taxation. Buse v. Smith,
74 Wis. 2d 550, 247 N.W.2d 141.
Contracting state debts. SECTION 4. The state shall never
Improvements tax relief provisions of 79.24 and 79.25, 1977 stats., are unconsti-
tutional as violative of uniformity clause. State ex rel. La Follette v. Torphy, 85 Wis. contract any public debt except in the cases and manner herein
2d 94, 270 N.W.2d 187 (1978). provided.
A tax exemption with a reasonable, though remote, relation to a legitimate gov- The Housing Authority Act does not create a state debt even though it calls for
ernment purpose was permissible. Madison General Hospital Asso. v. Madison, legislative appropriations in future years to service payment of notes and bonds.
92 Wis. 2d 125, 284 N.W.2d 603 (1979). State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 208 N.W.2d 780.
The tax Increment Law, s.66.46 [now s. 66.1105] does not violate the uniformity An authority’s power to issue notes and bonds does not constitute the creation
rule. Sigma Tau Gamma Fraternity House v. Menomonie, 93 Wis. 2d 392, 288 of a state debt or a pledge of the state’s credit in violation of art. VIII, since the creat-
N.W.2d 85 (1980). ing act specifically prohibited the authority from incurring state debt or pledging
A contract by which a landowner agreed to petition for annexation to a city, not state credit, and the provision of the act recognizing a moral obligation on the part
to develop land, and to grant water rights to the city in exchange for reimbursement of the legislature to make up deficits does not create an obligation legally enforce-
of all property taxes violated the uniformity rule. Cornwell v. City of Stevens Point, able against the state. Wisconsin Solid Waste Recycling Auth. v. Earl, 70 Wis. 2d
159 Wis. 2d 136, 464 N.W.2d 33 (Ct. App. 1990). 464, 235 N.W.2d 648.
For purposes of the uniformity clause, there is only one class of property, prop- This section restricts the state from levying taxes to create a surplus having no
erty that is taxable, and the burden of taxation must be borne as nearly as practicable public purpose. Although the constitutional provision does not apply directly to
among all property, based on value. Noah’s Ark Family Park v. Village of Lake municipalities, the same limitation applies to school districts because the state can-

not delegate more power than it has. Barth v. Monroe Board of Education, 108 Wis. is supported by or payable from payments out of the treasury of
2d 511, 514−15, 322 N.W.2d 694 (Ct. App. 1982).
Because operating notes are to be paid from money in the process of collection,
the state.
notes are not public debt. State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 338 (c) The state may contract public debt, without limit, to fund
N.W.2d 684 (1983). or refund the whole or any part of any public debt contracted pur-
An agreement to pay rent under a long−term lease would amount to contracting
a debt unless the lease is made subject to the availability of future funds. 60 Atty.
suant to paragraph (a), including any premium payable with
Gen. 408. respect thereto and any interest to accrue thereon, or to fund or
Borrowing money from federal government to replenish Wisconsin’s unemploy- refund the whole or any part of any indebtedness incurred prior
ment compensation fund does not contravene either art. VIII, sec. 3 or 4. 71 Atty. to January 1, 1972, by any entity of the type described in para-
Gen. 95.
graph (d), including any premium payable with respect thereto
Annual tax levy to equal expenses. SECTION 5. The leg- and any interest to accrue thereon.
islature shall provide for an annual tax sufficient to defray the (d) No money shall be paid out of the treasury, with respect
estimated expenses of the state for each year; and whenever the to any lease, sublease or other agreement entered into after Janu-
expenses of any year shall exceed the income, the legislature ary 1, 1971, to the Wisconsin State Agencies Building Corpora-
shall provide for levying a tax for the ensuing year, sufficient, tion, Wisconsin State Colleges Building Corporation, Wiscon-
with other sources of income, to pay the deficiency as well as the sin State Public Building Corporation, Wisconsin University
estimated expenses of such ensuing year. Building Corporation or any similar entity existing or operating
Deficit reported in financial statements prepared in accordance with generally for similar purposes pursuant to which such nonprofit corpora-
accepted accounting principles would not violate this section. 74 Atty. Gen. 202. tion or such other entity undertakes to finance or provide a facil-
ity for use or occupancy by the state or an agency, department
Public debt for extraordinary expense; taxation. or instrumentality thereof.
SECTION 6. For the purpose of defraying extraordinary expendi- (e) The legislature shall prescribe all matters relating to the
tures the state may contract public debts (but such debts shall contracting of public debt pursuant to paragraph (a), including:
never in the aggregate exceed one hundred thousand dollars). the public purposes for which public debt may be contracted; by
Every such debt shall be authorized by law, for some purpose or vote of a majority of the members elected to each of the 2 houses
purposes to be distinctly specified therein; and the vote of a of the legislature, the amount of public debt which may be con-
majority of all the members elected to each house, to be taken tracted for any class of such purposes; the public debt or other
by yeas and nays, shall be necessary to the passage of such law; indebtedness which may be funded or refunded; the kinds of
and every such law shall provide for levying an annual tax suffi- notes, bonds or other evidence of public debt which may be
cient to pay the annual interest of such debt and the principal issued by the state; and the manner in which the aggregate value
within five years from the passage of such law, and shall spe- of all taxable property in the state shall be determined.
cially appropriate the proceeds of such taxes to the payment of (f) The full faith, credit and taxing power of the state are
such principal and interest; and such appropriation shall not be pledged to the payment of all public debt created on behalf of the
repealed, nor the taxes be postponed or diminished, until the state pursuant to this section and the legislature shall provide by
principal and interest of such debt shall have been wholly paid. appropriation for the payment of the interest upon and instal-
The constitution does not preclude grants of state money to private parties for
the purpose of affording disaster relief under the federal Disaster Relief Act of ments of principal of all such public debt as the same falls due,
1974;. An appropriation by the legislature is required, however, to provide the state but, in any event, suit may be brought against the state to compel
funding contemplated by the Act. Federal advances under the Act are limited by such payment.
Art. VIII, sec. 6. 64 Atty. Gen. 39.
(g) At any time after January 1, 1972, by vote of a majority
Public debt for public defense; bonding for public of the members elected to each of the 2 houses of the legislature,
purposes. SECTION 7. [As amended April 1969, April 1975 and the legislature may declare that an emergency exists and submit
April 1992] (1) The legislature may also borrow money to repel to the people a proposal to authorize the state to contract a spe-
invasion, suppress insurrection, or defend the state in time of cific amount of public debt for a purpose specified in such pro-
war; but the money thus raised shall be applied exclusively to the posal, without regard to the limit provided in paragraph (b). Any
object for which the loan was authorized, or to the repayment of such authorization shall be effective if approved by a majority
the debt thereby created. of the electors voting thereon. Public debt contracted pursuant
to such authorization shall thereafter be deemed to have been
(2) Any other provision of this constitution to the contrary
contracted pursuant to paragraph (a), but neither such public
notwithstanding:
debt nor any public debt contracted to fund or refund such public
(a) The state may contract public debt and pledges to the pay- debt shall be considered in computing the debt limit provided in
ment thereof its full faith, credit and taxing power: paragraph (b). Not more than one such authorization shall be
1. To acquire, construct, develop, extend, enlarge or thus made in any 2−year period. [1967 J.R. 58, 1969 J.R. 3, vote
improve land, waters, property, highways, railways, buildings, April 1969; 1973 J.R. 38, 1975 J.R. 3, vote April 1975; J.R. 9,
equipment or facilities for public purposes. vote April 1992]
2. To make funds available for veterans’ housing loans. The Housing Authority Act does not violate sub. (2) (d) because housing con-
structed is not for state use. State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 208
(b) The aggregate public debt contracted by the state in any N.W.2d 780.
calendar year pursuant to paragraph (a) shall not exceed an An authority’s power to issue notes and bonds does not constitute the creation
amount equal to the lesser of: of a state debt or a pledge of the state’s credit in violation of art. VIII, since the creat-
ing act specifically prohibited the authority from incurring state debt or pledging
1. Three−fourths of one per centum of the aggregate value state credit, and the provision of the act recognizing a moral obligation on the part
of all taxable property in the state; or of the legislature to make up deficits does not create an obligation legally enforce-
able against the state. Wisconsin Solid Waste Recycling Auth. v. Earl, 70 Wis. 2d
2. Five per centum of the aggregate value of all taxable 464, 235 N.W.2d 648.
property in the state less the sum of: a. the aggregate public debt The debt limitations imposed are annual limitations but nevertheless have the
of the state contracted pursuant to this section outstanding as of effect of establishing an aggregate state debt limitation of 5% of the total value of
all taxable property in the state plus the amount of debt sinking fund reserves on
January 1 of such calendar year after subtracting therefrom the hand. 58 Atty. Gen. 1.
amount of sinking funds on hand on January 1 of such calendar State debt financing under s. 32.19 is permissible. 62 Atty. Gen. 42.
year which are applicable exclusively to repayment of such out- Issuance of general obligation bonds to finance a state fair park coliseum is
standing public debt and, b. the outstanding indebtedness as of authorized by s. 20.866 (2) (zz) and is not violative of the state constitution. 62
Atty. Gen. 236.
January 1 of such calendar year of any entity of the type Section 7 (2) (d) does not preclude the state from entering into a lease with a non-
described in paragraph (d) to the extent that such indebtedness profit corporation or other entity furnishing facilities for governmental functions

unless there is an attempt to use the lease as part of a scheme for the state to acquire The Solid Waste Recycling Authority Act does not contravene the Art. VIII, sec.
title to or the use of a facility without utilizing state general obligation bonding. 10 prohibition against state participation in internal improvements. Wisconsin
62 Atty. Gen. 296. Solid Waste Recycling Auth. v. Earl, 70 Wis. 2d 464, 235 N.W.2d 648.
Improving land or improve water under sub. (2) (a) 1. requires an undertaking The housing assistance program under 560.04 (3), 1985 stats., violated the ban
that improves the quality or condition of the land or water, but does not require that on state involvement in “internal improvements.” Development Dept. v. Building
physical structures be involved. 81 Atty. Gen. 114. Commission, 139 Wis. 2d 1, 406 N.W.2d 728 (1987).
State participation in a proposed convention center in the City of Milwaukee
would not violate either the “public purpose” doctrine or the internal improvements
Vote on fiscal bills; quorum. SECTION 8. On the passage prohibitions of art. VIII, sec. 10, so long as such participation is directed solely to
in either house of the legislature of any law which imposes, con- the clearly identifiable portion of the center allocated to use as a state−operated
tinues or renews a tax, or creates a debt or charge, or makes, con- tourist information center or some similar state governmental function. A state tax
operable only in 2 or 3 counties would not be a proper means of operational financ-
tinues or renews an appropriation of public or trust money, or ing of such a center. 58 Atty. Gen. 119.
releases, discharges or commutes a claim or demand of the state, The secretary of the department of transportation, while acting as agent for air-
the question shall be taken by yeas and nays, which shall be duly port sponsors, pursuant to s. 114.32, can give the required assurance to the Federal
Aviation Administration and provide replacement housing without violating Art.
entered on the journal; and three−fifths of all the members VIII, sec. 10. 60 Atty. Gen. 225.
elected to such house shall in all such cases be required to consti- A vocational, technical and adult education district has authority to purchase
tute a quorum therein. buildings for administration purposes or student dormitory housing, and in doing
so would not violate the constitutional ban on works of internal improvement. 60
Section 70.11 (8m), Stats. 1967, imposed a tax on property not previously taxed, Atty. Gen. 231.
and since no roll call votes appear on the legislative journals, it was not validly Chapter 108, laws of 1973, creating a small business investment company fund,
passed. State ex rel. General Motors Corp. v. Oak Creek, 49 Wis. 2d 299, 182 contemplates the appropriation of public funds for a valid public purpose, not for
N.W.2d 481. works of internal improvement, and is constitutional. 62 Atty. Gen. 212.
Past decisions of the court consistently tend to limit the definition of what is a Subject to certain limitations, the lease of state office building space to commer-
fiscal law and not every bill with a minimal fiscal effect requires a recorded vote. cial enterprise serving both state employees and the general public is constitutional.
60 Atty. Gen. 245. Such leases do not require bidding. 69 Atty. Gen. 121.
The taking of yea and nay votes and the entry on the journals of the senate and Dredging a navigable waterway to alleviate periodic flooding is not a prohibited
assembly can be complied with by recording the total aye vote together with a list- “work of internal improvement.” 69 Atty. Gen. 176.
ing of the names of those legislators who voted no, were absent or not voting or The state’s issuance of general obligation bonds to fund private construction for
were paired on the question. Art. V, sec. 10; Art. VIII, sec. 8; Art. XII, sec. 1 dis- pollution abatement purposes does not violate Art. VIII, secs. 3 and 10, or the pub-
cussed. 63 Atty. Gen. 346. lic purpose doctrine. 74 Atty. Gen. 25.
A new look at internal improvements and public purpose rules. Eich, 1970 WLR
Evidences of public debt. SECTION 9. No scrip, certifi- 1113.
cate, or other evidence of state debt, whatsoever, shall be issued,
except for such debts as are authorized by the sixth and seventh
sections of this article. ARTICLE IX.
The limit on recovery from governmental tort−feasors in ss. 81.15 and 895.43,
1975 stats., is not invalid under this section. Stanhope v. Brown County, 90 Wis. EMINENT DOMAIN AND PROPERTY OF THE STATE
2d 823, 280 N.W.2d 711 (1979).
Internal improvements. SECTION 10. [As amended Nov. Jurisdiction on rivers and lakes; navigable waters.
1908, Nov. 1924, April 1945, April 1949, April 1960, April 1968 SECTION 1. The state shall have concurrent jurisdiction on all riv-
and April 1992] Except as further provided in this section, the ers and lakes bordering on this state so far as such rivers or lakes
state may never contract any debt for works of internal improve- shall form a common boundary to the state and any other state
ment, or be a party in carrying on such works. or territory now or hereafter to be formed, and bounded by the
same; and the river Mississippi and the navigable waters leading
(1) Whenever grants of land or other property shall have
into the Mississippi and St. Lawrence, and the carrying places
been made to the state, especially dedicated by the grant to par- between the same, shall be common highways and forever free,
ticular works of internal improvement, the state may carry on as well to the inhabitants of the state as to the citizens of the
such particular works and shall devote thereto the avails of such United States, without any tax, impost or duty therefor.
grants, and may pledge or appropriate the revenues derived from The boating registration law does not violate this section. State v. Jackman, 60
such works in aid of their completion. Wis. 2d 700, 211 N.W.2d 480.
(2) The state may appropriate money in the treasury or to be There is no constitutional barrier to the application of s. 30.18, regulating diver-
sion of water, to nonnavigable waters. Omernik v. State, 64 Wis. 2d 6, 218 N.W.2d
thereafter raised by taxation for: 734.
(a) The construction or improvement of public highways. The term “forever free” does not refer to physical obstructions but to political
regulations that would hamper the freedom of commerce. Capt. Soma Boat Line
(b) The development, improvement and construction of air- v. Wisconsin Dells, 79 Wis. 2d 10, 255 N.W.2d 441.
ports or other aeronautical projects. A fisherman who violated Minnesota and Wisconsin fishing laws while standing
on the Minnesota bank of the Mississippi was subject to Wisconsin prosecution.
(c) The acquisition, improvement or construction of veter- State v. Nelson, 92 Wis. 2d 855, 285 N.W.2d 924 (Ct. App. 1979)
ans’ housing. An ordinance that provided for exclusive temporary use of a portion of a lake for
public water exhibition licensees did not offend the public trust doctrine. State v.
(d) The improvement of port facilities. Village of Lake Delton, 93 Wis. 2d 78, 286 N.W.2d 622 (Ct. App. 1979).
(e) The acquisition, development, improvement or construc- It is appropriate to extend the public trust doctrine to include navigable waters
tion of railways and other railroad facilities. and the shores appurtenant to ensure public access and free use of the waters. State
v. Town of Linn, 205 Wis. 2d 426, 556 N.W.2d 394 (Ct. App. 1996), 95−3242.
(3) The state may appropriate moneys for the purpose of A cause of action cannot be based only on a general allegation of a violation of
acquiring, preserving and developing the forests of the state. Of the public trust doctrine. Borsellino v. DNR, 2000 WI App 27, 232 Wis. 2d 430,
605 N.W.2d 255, 99−1220.
the moneys appropriated under the authority of this subsection Portages have lost the protection of the public trust doctrine under this section.
in any one year an amount not to exceed two−tenths of one mill 75 Atty. Gen. 89.
of the taxable property of the state as determined by the last pre- The “Invisible Lien”: Public Trust Doctrine Impact on Real Estate Development
in Wisconsin. Harrington. Wis. Law. May 1996.
ceding state assessment may be raised by a tax on property.
[1905 J.R. 11, 1907 J.R. 18, 1907 c. 238, vote Nov. 1908; 1921
Territorial property. SECTION 2. The title to all lands and
J.R. 29S, 1923 J.R. 57, 1923 c. 289, vote Nov. 1924; 1943 J.R. other property which have accrued to the territory of Wisconsin
37, 1945 J.R. 3, vote April 1945; Spl. S. 1948 J.R. 1, 1949 J.R. by grant, gift, purchase, forfeiture, escheat or otherwise shall
1, vote April 1949; 1957 J.R. 58, 1959 J.R. 15, vote April 1960; vest in the state of Wisconsin.
1965 J.R. 43, 1967 J.R. 25, vote April 1968; 1991 J.R. 9, vote
April 1992] Ultimate property in lands; escheats. SECTION 3. The
The Housing Authority Act does not make the state a party to carrying on works
of public improvement. State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 208 people of the state, in their right of sovereignty, are declared to
N.W.2d 780. possess the ultimate property in and to all lands within the juris-

diction of the state; and all lands the title to which shall fail from Public schools may sell or charge fees for the use of books and items of a similar
nature when authorized by statute without violating this section. Board of Educa-
a defect of heirs shall revert or escheat to the people. tion v. Sinclair, 65 Wis. 2d 179, 222 N.W.2d 143.
Use of the word “shall” in s. 118.155, making cooperation by school boards with
programs of religious instruction during released time mandatory rather than dis-
ARTICLE X. cretionary does not infringe upon the inherent powers of a school board. State ex
rel. Holt v. Thompson, 66 Wis. 2d 659, 225 N.W.2d 678.
School districts are not constitutionally compelled to admit gifted four−year old
EDUCATION children into kindergarten. Zweifel v. Joint Dist., No. 1, Belleville, 76 Wis. 2d 648,
251 N.W.2d 822.
The mere appropriation of public monies to a private school does not transform
Superintendent of public instruction. SECTION 1. [As that school into a district school under this section. Jackson v. Benson, 218 Wis.
amended Nov. 1902 and Nov. 1982] The supervision of public 2d 835, 578 N.W.2d 602 (1998), 97−0270.
instruction shall be vested in a state superintendent and such The school finance system under ch. 121 is constitutional under both art. I, sec.
1 and art. X, sec. 3. Students have a fundamental right to an equal opportunity for
other officers as the legislature shall direct; and their qualifica- a sound basic education. Uniform revenue−raising capacity among districts is not
tions, powers, duties and compensation shall be prescribed by required. Vincent v. Voight, 2000 WI 93, 236 Wis. 2d 588, 614 N.W.2d 388,
law. The state superintendent shall be chosen by the qualified 97−3174.
The due process clause of the 14th amendment includes the fundamental right
electors of the state at the same time and in the same manner as of parents to make decisions concerning the care, custody, and control of their chil-
members of the supreme court, and shall hold office for 4 years dren, including the right to direct the upbringing and education of children under
from the succeeding first Monday in July. The term of office, their control, but that right is neither absolute nor unqualified. Parents do not have
a fundamental right direct how a public school teaches their child or to dictate the
time and manner of electing or appointing all other officers of curriculum at the public school to which they have chosen to send their child. Lar-
supervision of public instruction shall be fixed by law. [1899 son v. Burmaster, 2006 WI App 142, 295 Wis. 2d 333, 720 N.W.2d 134, 05−1433.
J.R. 16, 1901 J.R. 3, 1901 c. 258, vote Nov. 1902; 1979 J.R. 36, The state and its agencies, except the department of public instruction, constitu-
tionally can deny service or require the payment of fees for services to children
1981 J.R. 29, vote Nov. 1982] between age 4 and 20 who seek admission to an institution or program because
This section confers no more authority upon school officers than that delineated school services are lacking in their community or district. 58 Atty. Gen. 53.
by statute. Arbitration Between West Salem & Fortney, 108 Wis. 2d 167, 321 VTAE schools [now technical colleges] are not “district schools” within the
N.W.2d 225 (1982). meaning of this section. 64 Atty. Gen. 24.
The legislature may not give any “other officer” authority equal or superior to Public school districts may not charge students for the cost of driver education
that of the state superintendent. Thompson v. Craney, 199 Wis. 2d 674, 546 N.W.2d programs if the programs are credited towards graduation. 71 Atty. Gen. 209.
123 (1996), 95−2168. Having established the right to an education, the state may not withdraw the right
on grounds of misconduct absent fundamentally fair procedures to determine if
School fund created; income applied. SECTION 2. [As misconduct occurred. Attendance by the student at expulsion deliberations is not
mandatory; all that is required is the student have the opportunity to attend and pres-
amended Nov. 1982] The proceeds of all lands that have been or ent his or her case. Remer v. Burlington Area School District, 149 F. Supp. 2d 665
hereafter may be granted by the United States to this state for (2001).
educational purposes (except the lands heretofore granted for Intrastate inequalities in public education; the case for judicial relief under the
equal protection clause. Silard, White, 1970 WLR 7.
the purposes of a university) and all moneys and the clear pro- The constitutional mandate for free schools. 1971 WLR 971.
ceeds of all property that may accrue to the state by forfeiture or
escheat; and the clear proceeds of all fines collected in the sev- Annual school tax. SECTION 4. Each town and city shall
eral counties for any breach of the penal laws, and all moneys be required to raise by tax, annually, for the support of common
arising from any grant to the state where the purposes of such schools therein, a sum not less than one−half the amount
grant are not specified, and the 500,000 acres of land to which received by such town or city respectively for school purposes
the state is entitled by the provisions of an act of congress, from the income of the school fund.
entitled “An act to appropriate the proceeds of the sales of the
public lands and to grant pre−emption rights,” approved Sep- Income of school fund. SECTION 5. Provision shall be
tember 4, 1841; and also the 5 percent of the net proceeds of the made by law for the distribution of the income of the school fund
public lands to which the state shall become entitled on admis- among the several towns and cities of the state for the support of
sion into the union (if congress shall consent to such appropria- common schools therein, in some just proportion to the number
tion of the 2 grants last mentioned) shall be set apart as a separate of children and youth resident therein between the ages of four
fund to be called “the school fund,” the interest of which and all and twenty years, and no appropriation shall be made from the
other revenues derived from the school lands shall be exclu- school fund to any city or town for the year in which said city or
sively applied to the following objects, to wit: town shall fail to raise such tax; nor to any school district for the
(1) To the support and maintenance of common schools, in year in which a school shall not be maintained at least three
each school district, and the purchase of suitable libraries and months.
apparatus therefor. State university; support. SECTION 6. Provision shall be
(2) The residue shall be appropriated to the support and made by law for the establishment of a state university at or near
maintenance of academies and normal schools, and suitable the seat of state government, and for connecting with the same,
libraries and apparatus therefor. [1979 J.R. 36, 1981 J.R. 29, from time to time, such colleges in different parts of the state as
vote Nov. 1982] the interests of education may require. The proceeds of all lands
The clear proceeds of fines imposed, at least 50% under s. 59.20 (8) [now s. 59.25 that have been or may hereafter be granted by the United States
(3) (j)] after the accused forfeits a deposit by nonappearance must be sent to the
state treasurer for the school fund. 58 Atty. Gen. 142. to the state for the support of a university shall be and remain a
Money resulting from state forfeitures action under ss. 161.555 [now s. 961.555] perpetual fund to be called “the university fund,” the interest of
and 973.075 (4) must be deposited in the school fund. Money granted to the state which shall be appropriated to the support of the state university,
after a federal forfeiture proceeding need not be. 76 Atty. Gen. 209.
and no sectarian instruction shall be allowed in such university.
District schools; tuition; sectarian instruction; Vocational education is not exclusively a state function. West Milwaukee v. Area
Board of Vocational, Technical and Adult Education, 51 Wis. 2d 356, 187 N.W.2d
released time. SECTION 3. [As amended April 1972] The legis- 387.
lature shall provide by law for the establishment of district
schools, which shall be as nearly uniform as practicable; and Commissioners of public lands. SECTION 7. The secre-
such schools shall be free and without charge for tuition to all tary of state, treasurer and attorney general, shall constitute a
children between the ages of 4 and 20 years; and no sectarian board of commissioners for the sale of the school and university
instruction shall be allowed therein; but the legislature by law lands and for the investment of the funds arising therefrom. Any
may, for the purpose of religious instruction outside the district two of said commissioners shall be a quorum for the transaction
schools, authorize the release of students during regular school of all business pertaining to the duties of their office.
hours. [1969 J.R. 37, 1971 J.R. 28, vote April 1972]
The constitution does not require that school districts be uniform in size or equal- Sale of public lands. SECTION 8. Provision shall be made
ized valuation. Larson v. State Appeal Board 56 Wis. 2d 823, 202 N.W.2d 920. by law for the sale of all school and university lands after they

shall have been appraised; and when any portion of such lands (3) Any county, city, town, village, school district, sewerage
shall be sold and the purchase money shall not be paid at the time district or other municipal corporation incurring any indebted-
of the sale, the commissioners shall take security by mortgage ness under sub. (2) shall, before or at the time of doing so, pro-
upon the lands sold for the sum remaining unpaid, with seven per vide for the collection of a direct annual tax sufficient to pay the
cent interest thereon, payable annually at the office of the trea- interest on such debt as it falls due, and also to pay and discharge
surer. The commissioners shall be authorized to execute a good the principal thereof within 20 years from the time of contracting
and sufficient conveyance to all purchasers of such lands, and to the same.
discharge any mortgages taken as security, when the sum due (4) When indebtedness under sub. (2) is incurred in the
thereon shall have been paid. The commissioners shall have acquisition of lands by cities, or by counties or sewerage districts
power to withhold from sale any portion of such lands when they having a population of 150,000 or over, for public, municipal
shall deem it expedient, and shall invest all moneys arising from purposes, or for the permanent improvement thereof, or to pur-
the sale of such lands, as well as all other university and school chase, acquire, construct, extend, add to or improve a sewage
funds, in such manner as the legislature shall provide, and shall collection or treatment system which services all or a part of
give such security for the faithful performance of their duties as such city or county, the city, county or sewerage district incur-
may be required by law. ring the indebtedness shall, before or at the time of so doing, pro-
The legislature may direct public land commissioners to invest monies from the vide for the collection of a direct annual tax sufficient to pay the
sale of public lands in student loans but may not direct a specific investment. 65
Atty. Gen. 28. interest on such debt as it falls due, and also to pay and discharge
State reservation of land and interests in lands under ch. 452, laws of 1911, 24.11 the principal thereof within a period not exceeding 50 years from
(3) and Art. X, sec. 8 is discussed. 65 Atty. Gen. 207. the time of contracting the same.
(5) An indebtedness created for the purpose of purchasing,
acquiring, leasing, constructing, extending, adding to, improv-
ARTICLE XI. ing, conducting, controlling, operating or managing a public
utility of a town, village, city or special district, and secured
CORPORATIONS solely by the property or income of such public utility, and
whereby no municipal liability is created, shall not be consid-
Corporations; how formed. SECTION 1. [As amended ered an indebtedness of such town, village, city or special dis-
April 1981] Corporations without banking powers or privileges trict, and shall not be included in arriving at the debt limitation
may be formed under general laws, but shall not be created by under sub. (2). [1872 J.R. 11, 1873 J.R. 4, 1874 c. 37, vote Nov.
special act, except for municipal purposes. All general laws or 1874; 1909 J.R. 44, 1911 J.R. 42, 1911 c. 665, vote Nov. 1912;
special acts enacted under the provisions of this section may be 1921 J.R. 39S, 1923 J.R. 34, 1923 c. 203, vote Nov. 1924; 1929
altered or repealed by the legislature at any time after their pas- J.R. 74, 1931 J.R. 71, vote Nov. 1932; 1949 J.R. 12, 1951 J.R.
sage. [1979 J.R. 21, 1981 J.R. 9, vote April 1981] 6, vote April 1951; 1953 J.R. 47, 1955 J.R. 12, vote April 1955;
Section 499.02 (4), 1973 stats., providing that the Solid Waste Recycling 1957 J.R. 59, 1959 J.R. 32, vote Nov. 1960; 1959 J.R. 35, 1961
Authority’s existence may not be terminated while it has outstanding obligations, J.R. 8, vote April 1961; 1961 J.R. 71, 1963 J.R. 8, vote April 2,
does not violate the Wisconsin Constitution’s reserved power provisions because:
1) The Authority is not a corporation created pursuant to section 1, and section 1 1963; 1963 J.R. 44, 1965 J.R. 51 and 58, vote April 1966; 1979
is directed only to laws enacted under the provisions of that section; and 2) any J.R. 43, 1981 J.R. 7, vote April 1981]
attempt to terminate the authority while it has outstanding obligations would con- Authorizing municipalities to issue revenue bonds to finance industrial develop-
travene the impairment of contract clauses of both the U.S. and state constitutions. ment projects, is not an improper delegation of authority in a matter of statewide
Wisconsin Solid Waste Recycling Auth. v. Earl, 70 Wis. 2d 464, 235 N.W.2d 648. concern. When the purchase price of property to be acquired is payable exclusively
Creation of the citizens utility board is constitutional. 69 Atty. Gen. 153. from income or profits to be derived from the property purchased and a mortgage
or lien attaches only to that property, no debt is created in violation of this section
of the constitution. State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d
Property taken by municipality. SECTION 2. [As amended 32, 205 N.W.2d 784.
April 1961] No municipal corporation shall take private prop- This section does not invalidate provisions of the Solid Waste Recycling Author-
erty for public use, against the consent of the owner, without the ity Act dealing with required use of the authority’s facilities, user charges, and con-
necessity thereof being first established in the manner pre- demnation powers, since the purpose of the act involves a matter of statewide con-
cern. Wisconsin Solid Waste Recycling Auth. v. Earl, 70 Wis. 2d 464, 235 N.W.2d
scribed by the legislature. [1959 J.R. 47, 1961 J.R. 12, vote April 648.
1961] The provision of s. 144.07 (1m) [now s. 281.34 (1m)], that voids a DNR sewer-
age connection order if electors in an affected town area reject annexation to the
city ordered to extend sewerage service, represents valid legislative balancing and
Municipal home rule; debt limit; tax to pay debt. SEC- accommodation of 2 statewide concerns, urban development and pollution control.
TION 3. [As amended Nov. 1874, Nov. 1912, Nov. 1924, Nov. City of Beloit v. Kallas, 76 Wis. 2d 61, 250 N.W.2d 342.
1932, April 1951, April 1955, Nov. 1960, April 1961, April 1963, No conflict was found between an ordinance and a statute dealing with related
subject matter when the former was paramountly in the local interest and the latter
April 1966 and April 1981] (1) Cities and villages organized was of statewide concern. State ex rel. Michalek v. LeGrand, 77 Wis. 2d 520, 253
pursuant to state law may determine their local affairs and gov- N.W.2d 505.
ernment, subject only to this constitution and to such enactments Coexisting ordinances and statutes prohibiting the same conduct is discussed.
State v. Karpinski, 92 Wis. 2d 599, 285 N.W.2d 729 (1979).
of the legislature of statewide concern as with uniformity shall Refusal by a city to provide sewerage service to a portion of a town unless inhab-
affect every city or every village. The method of such deter- itants agreed to annexation of that portion did not violate antitrust law. Town of
mination shall be prescribed by the legislature. Hallie v. City of Chippewa Falls, 105 Wis. 2d 533, 314 N.W.2d 321 (1982).
A city ordinance that regulated lending practices of state chartered savings and
(2) No county, city, town, village, school district, sewerage loans with regard to discrimination was preempted by state statutes. Anchor Sav-
district or other municipal corporation may become indebted in ings & Loan Association. v. Madison EOC, 120 Wis. 2d 391, 355 N.W.2d 234
an amount that exceeds an allowable percentage of the taxable (1984).
property located therein equalized for state purposes as provided Liberally construing home rule authority, a city is not authorized to institute a
public safety officer program. Local Union No. 487 v. Eau Claire, 147 Wis. 2d 519,
by the legislature. In all cases the allowable percentage shall be 433 N.W.2d 578 (1989).
5 percent except as specified in pars. (a) and (b): Antitrust law demonstrates the legislature’s intent to subordinate a city’s home−
rule authority to its provisions. Unless legislation at least impliedly authorizes a
(a) For any city authorized to issue bonds for school pur- city’s anticompetitive action, the city has violated antitrust law. Amer Med. Transp.
poses, an additional 10 percent shall be permitted for school pur- v. Curtis−University, 154 Wis. 2d 135, 452 N.W.2d 575 (1990).
poses only, and in such cases the territory attached to the city for A school district did not incur indebtedness by entering into a lease−purchase
school purposes shall be included in the total taxable property agreement for a new school when the district, by electing not to appropriate funds
for the following fiscal year’s rental payment, had the option to terminate the agree-
supporting the bonds issued for school purposes. ment with no future payment obligation. Deick v. Unified School District of
(b) For any school district which offers no less than grades Antigo, 165 Wis. 2d 458, 477 N.W.2d 613 (1991).
Tax increment financing bonds that a city proposed to issue under s. 66.46 [now
one to 12 and which at the time of incurring such debt is eligible s. 66.1105] constituted debt under this section and were subject to the city’s debt
for the highest level of school aids, 10 percent shall be permitted. limits. City of Hartford v. Kirley, 172 Wis. 2d 191, 493 N.W.2d 45 (1992).

An agreement to purchase park land whereby a county is to make deferred pay- by a majority of the members elected to each of the two houses,
ments from an existing nonlapsing account, sufficient to cover the entire obliga-
tion, secured by mortgaging the property to the grantor, would not create an obliga- such proposed amendment or amendments shall be entered on
tion within the ambit of ch. 67 nor constitute a debt in the context of this section. their journals, with the yeas and nays taken thereon, and referred
63 Atty. Gen. 309. to the legislature to be chosen at the next general election, and
Local government units cannot include the value of tax−exempt manufacturing shall be published for three months previous to the time of hold-
machinery and specific processing equipment and tax exempt merchants’ stock−
in−trade, manufacturers’ materials and finished products, and livestock in their ing such election; and if, in the legislature so next chosen, such
property valuation totals for non−tax purposes, such as for municipal debt ceilings, proposed amendment or amendments shall be agreed to by a
tax levy limitations, shared tax distributions, and school aid payments. 63 Atty.
Gen. 465. majority of all the members elected to each house, then it shall
There is no constitutional prohibition against increasing either municipal tax rate be the duty of the legislature to submit such proposed amend-
limitations or increasing the municipal tax base. However, a constitutional amendment or amendments to the people in such manner and at such
ment would be required to increase municipal debt limitations. 63 Atty. Gen. 567. time as the legislature shall prescribe; and if the people shall
“Home rule” discussed. 69 Atty. Gen. 232.
Home rule applicability to libraries and library systems contrasted. 73 Atty. Gen. approve and ratify such amendment or amendments by a major-
86. ity of the electors voting thereon, such amendment or amend-
The housing of out−of−state prisoners by the state, a county, or a municipality ments shall become part of the constitution; provided, that if
may only be as authorized by statute, which is currently limited to the Interstate
Corrections Compact, s. 302.25. OAG 2−99. more than one amendment be submitted, they shall be submitted
Conflicts between state statute and local ordinance in Wisconsin. 1975 WLR in such manner that the people may vote for or against such
840. amendments separately.
It is within the discretion of the legislature to submit several distinct propositions
Acquisition of lands by state and subdivisions; sale to the electorate as one constitutional amendment if they relate to the same subject
of excess. SECTION 3a. [As created Nov. 1912 and amended matter and are designed to accomplish one general purpose. Milwaukee Alliance
v. Elections Board, 106 Wis. 2d 593, 317 N.W.2d 420 (1982).
April 1956] The state or any of its counties, cities, towns or vil- Unless a constitutional amendment provides otherwise, the amendment takes
lages may acquire by gift, dedication, purchase, or condemna- effect upon the certification of a statewide canvass of the votes as provided in s.
tion lands for establishing, laying out, widening, enlarging, 7.70 (3) (h). The legislature has the authority under Art. XII, s. 1 to adopt reason-
able election laws to provide that state constitutional amendments are effective
extending, and maintaining memorial grounds, streets, high- after canvass and certification. State v. Gonzales, 2002 WI 59, 253 Wis. 2d 134,
ways, squares, parkways, boulevards, parks, playgrounds, sites 645 N.W.2d 264, 01−0224.
In order to constitute more than one amendment in violation of this section, the
for public buildings, and reservations in and about and along and propositions submitted must relate to more than one subject, and have at least two
leading to any or all of the same; and after the establishment, lay- distinct and separate purposes not dependent upon or connected with each other.
out, and completion of such improvements, may convey any The constitution grants the legislature considerable discretion in the manner in
which amendments are drafted and submitted to the people. An otherwise valid
such real estate thus acquired and not necessary for such amendment will be construed as more than one amendment only in exceedingly
improvements, with reservations concerning the future use and rare circumstances. The propositions need only relate to the same subject and tend
occupation of such real estate, so as to protect such public works to effect or carry out one general purpose. The general purpose of an amendment
may be deduced from the text of the amendment itself and from the historical con-
and improvements, and their environs, and to preserve the view, text in which the amendment was adopted. McConkey v. Van Hollen, 2010 WI 57,
appearance, light, air, and usefulness of such public works. If 326 Wis. 2d 1; 783 N.W.2d 855, 08−1868.
the governing body of a county, city, town or village elects to The two propositions contained in the amendment creating Article XIII, section
13, plainly relate to the subject of marriage. The general purpose of the marriage
accept a gift or dedication of land made on condition that the amendment is to preserve the legal status of marriage as between only one man and
land be devoted to a special purpose and the condition subse- one woman. Both propositions in the marriage amendment relate to and are con-
quently becomes impossible or impracticable, such governing nected with this purpose. Therefore, the marriage amendment does not violate the
separate amendment rule of Article XII, Section 1. McConkey v. Van Hollen, 2010
body may by resolution or ordinance enacted by a two−thirds WI 57, 326 Wis. 2d 1; 783 N.W.2d 855, 08−1868.
vote of its members elect either to grant the land back to the The taking of yea and nay votes and the entry on the journals of the senate and
donor or dedicator or his heirs or accept from the donor or dedi- assembly can be complied with by recording the total aye vote together with a list-
ing of the names of those legislators who voted no, were absent or not voting or
cator or his heirs a grant relieving the county, city, town or vil- were paired on the question. Art. V, sec. 10; Art. VIII, sec. 8; Art. XII, sec. 1 are
lage of the condition; however, if the donor or dedicator or his discussed. 63 Atty. Gen. 346.
heirs are unknown or cannot be found, such resolution or ordi- The legislature must resubmit a proposed amendment to the people when the pre-
vious referendum was voided by court order, notwithstanding an appeal therefrom.
nance may provide for the commencement of proceedings in the 65 Atty. Gen. 42.
manner and in the courts as the legislature shall designate for the Symposium: Is the Wisconsin Constitution Obsolete? 90 MLR (Spring 2007
purpose of relieving the county, city, town or village from the whole volume).
condition of the gift or dedication. [1909 J.R. 38, 1911 J.R. 48,
1911 c. 665, vote Nov. 1912; 1953 J.R. 35, 1955 J.R. 36, vote Constitutional conventions. SECTION 2. If at any time a
April 1956] majority of the senate and assembly shall deem it necessary to
A purchase of land by a city for industrial development that is leased with an call a convention to revise or change this constitution, they shall
option to buy or to renew the lease with a minimal rent did not violate this section. recommend to the electors to vote for or against a convention at
State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 205 N.W.2d 784. the next election for members of the legislature. And if it shall
appear that a majority of the electors voting thereon have voted
General banking law. SECTION 4. [As created Nov. 1902 for a convention, the legislature shall, at its next session, provide
and amended April 1981] The legislature may enact a general for calling such convention.
banking law for the creation of banks, and for the regulation and
supervision of the banking business. [1899 J.R. 13, 1901 J.R. 2,
1901 c. 73, vote Nov. 1902; 1979 J.R. 21, 1981 J.R. 9, vote April ARTICLE XIII.
1981]
Referendum on banking laws. SECTION 5. [Repealed MISCELLANEOUS PROVISIONS

Nov. 1902; see 1899 J.R. 13, 1901 J.R. 2, 1901 c. 73, vote Nov.
1902.] Political year; elections. SECTION 1. [As amended Nov.
1882 and April 1986] The political year for this state shall com-
mence on the first Monday of January in each year, and the gen-
ARTICLE XII. eral election shall be held on the Tuesday next succeeding the
first Monday of November in even−numbered years. [1881 J.R.
AMENDMENTS 16A, 1882 J.R. 3, 1882 c. 290, vote Nov. 1882; 1983 J.R. 30,
1985 J.R. 14, vote April 1986]
Constitutional amendments. SECTION 1. Any amend-
ment or amendments to this constitution may be proposed in Dueling. SECTION 2. [Repealed April 1975; see 1973 J.R. 10,
either house of the legislature, and if the same shall be agreed to 1975 J.R. 4, vote April 1975.]

Eligibility to office. SECTION 3. [As amended Nov. 1996] election or appointment is not provided for by this constitution,
(1) No member of congress and no person holding any office of and all officers whose offices may hereafter be created by law,
profit or trust under the United States except postmaster, or shall be elected by the people or appointed, as the legislature
under any foreign power, shall be eligible to any office of trust, may direct.
profit or honor in this state.
(2) No person convicted of a felony, in any court within the Vacancies in office. SECTION 10. [As amended April 1979]
United States, no person convicted in federal court of a crime (1) The legislature may declare the cases in which any office
designated, at the time of commission, under federal law as a shall be deemed vacant, and also the manner of filling the
misdemeanor involving a violation of public trust and no person vacancy, where no provision is made for that purpose in this con-
convicted, in a court of a state, of a crime designated, at the time stitution.
of commission, under the law of the state as a misdemeanor (2) Whenever there is a vacancy in the office of lieutenant
involving a violation of public trust shall be eligible to any office governor, the governor shall nominate a successor to serve for
of trust, profit or honor in this state unless pardoned of the con- the balance of the unexpired term, who shall take office after
viction. confirmation by the senate and by the assembly. [1977 J.R. 32,
(3) No person may seek to have placed on any ballot for a 1979 J.R. 3, vote April 1979]
state or local elective office in this state the name of a person A felony conviction and sentencing of a state senator creates a vacancy in the
office without any action by the senate. 65 Atty. Gen. 264.
convicted of a felony, in any court within the United States, the
name of a person convicted in federal court of a crime desig- Passes, franks and privileges. SECTION 11. [As created
nated, at the time of commission, under federal law as a misde- Nov. 1902 and amended Nov. 1936] No person, association,
meanor involving a violation of public trust or the name of a per- copartnership, or corporation, shall promise, offer or give, for
son convicted, in a court of a state, of a crime designated, at the any purpose, to any political committee, or any member or
time of commission, under the law of the state as a misdemeanor employee thereof, to any candidate for, or incumbent of any
involving a violation of public trust, unless the person named for office or position under the constitution or laws, or under any
the ballot has been pardoned of the conviction. [1995 Jt. Res. 28] ordinance of any town or municipality, of this state, or to any
The 1996 amendment of this section was not an ex post facto law and was not person at the request or for the advantage of all or any of them,
in violation of the federal equal protection or due process clauses. Swan v. LaFol-
lette, 231 Wis. 2d 633, 605 N.W.2d 640 (Ct. App. 1999), 99−0127. any free pass or frank, or any privilege withheld from any per-
A convicted felon who has been restored to his civil rights, pursuant to 57.078, son, for the traveling accommodation or transportation of any
1987 stats. [now s. 304.078] is barred from the office of notary public by this section person or property, or the transmission of any message or com-
unless pardoned. 63 Atty. Gen. 74.
This section does not bar a “congressional home secretary” from serving as a munication.
member of the Natural Resources Board. 64 Atty. Gen. 1. No political committee, and no member or employee thereof,
A felony conviction and sentencing of a state senator creates a vacancy in the no candidate for and no incumbent of any office or position
office without any action by the senate. 65 Atty. Gen. 264.
Nonpardoned felons may not serve as sheriffs, deputy sheriffs, patrolmen, under the constitution or laws, or under any ordinance of any
policemen, or constables as these officers are “public officers” and they hold an town or municipality of this state, shall ask for, or accept, from
“office of trust, profit or honor in this state” under this section. 65 Atty. Gen. 292. any person, association, copartnership, or corporation, or use, in
any manner, or for any purpose, any free pass or frank, or any
Great seal. SECTION 4. It shall be the duty of the legislature privilege withheld from any person, for the traveling accommo-
to provide a great seal for the state, which shall be kept by the dation or transportation of any person or property, or the trans-
secretary of state, and all official acts of the governor, his appro- mission of any message or communication.
bation of the laws excepted, shall be thereby authenticated.
Any violation of any of the above provisions shall be bribery
Residents on Indian lands, where to vote. SECTION 5. and punished as provided by law, and if any officer or any mem-
[Repealed April 1986; see 1983 J.R. 30, 1985 J.R. 14, vote April ber of the legislature be guilty thereof, his office shall become
1986.] vacant.
No person within the purview of this act shall be privileged
Legislative officers. SECTION 6. The elective officers of from testifying in relation to anything therein prohibited; and no
the legislature, other than the presiding officers, shall be a chief person having so testified shall be liable to any prosecution or
clerk and a sergeant at arms, to be elected by each house. punishment for any offense concerning which he was required
to give his testimony or produce any documentary evidence.
Division of counties. SECTION 7. No county with an area Notaries public and regular employees of a railroad or other
of nine hundred square miles or less shall be divided or have any public utilities who are candidates for or hold public offices for
part stricken therefrom, without submitting the question to a which the annual compensation is not more than three hundred
vote of the people of the county, nor unless a majority of all the dollars to whom no passes or privileges are extended beyond
legal voters of the county voting on the question shall vote for those which are extended to other regular employees of such
the same. corporations are excepted from the provisions of this section.
[1899 J.R. 8, 1901 J.R. 9, 1901 c. 437, vote Nov. 1902; 1933 J.R.
Removal of county seats. SECTION 8. No county seat 63, 1935 J.R. 98, vote Nov. 1936]
shall be removed until the point to which it is proposed to be This section does not apply to a county ordinance granting special reserved park-
removed shall be fixed by law, and a majority of the voters of the ing privileges in a county ramp to county employees. Dane County v. McManus,
55 Wis. 2d 413, 198 N.W.2d 667.
county voting on the question shall have voted in favor of its Article XIII, section 11 of the Wisconsin Constitution is discussed. 77 Atty. Gen.
removal to such point. 237.
Election or appointment of statutory officers. SEC- Recall of elective officers. SECTION 12. [As created Nov.
TION 9. All county officers whose election or appointment is not 1926 and amended April 1981] The qualified electors of the
provided for by this constitution shall be elected by the electors state, of any congressional, judicial or legislative district or of
of the respective counties, or appointed by the boards of supervi- any county may petition for the recall of any incumbent elective
sors, or other county authorities, as the legislature shall direct. officer after the first year of the term for which the incumbent
All city, town and village officers whose election or appointment was elected, by filing a petition with the filing officer with whom
is not provided for by this constitution shall be elected by the the nomination petition to the office in the primary is filed,
electors of such cities, towns and villages, or of some division demanding the recall of the incumbent.
thereof, or appointed by such authorities thereof as the legisla- (1) The recall petition shall be signed by electors equalling
ture shall designate for that purpose. All other officers whose at least twenty−five percent of the vote cast for the office of gov-

ernor at the last preceding election, in the state, county or district rights, actions, prosecutions, judgments, claims and contracts,
which the incumbent represents. as well of individuals as of bodies corporate, shall continue as
(2) The filing officer with whom the recall petition is filed if no such change had taken place; and all process which may be
shall call a recall election for the Tuesday of the 6th week after issued under the authority of the territory of Wisconsin previous
the date of filing the petition or, if that Tuesday is a legal holiday, to its admission into the union of the United States shall be as
on the first day after that Tuesday which is not a legal holiday. valid as if issued in the name of the state.
(3) The incumbent shall continue to perform the duties of the Territorial laws continued. SECTION 2. All laws now in
office until the recall election results are officially declared. force in the territory of Wisconsin which are not repugnant to
(4) Unless the incumbent declines within 10 days after the this constitution shall remain in force until they expire by their
filing of the petition, the incumbent shall without filing be own limitation or be altered or repealed by the legislature.
deemed to have filed for the recall election. Other candidates
may file for the office in the manner provided by law for special Territorial fines accrue to state. SECTION 3. [Repealed
elections. For the purpose of conducting elections under this Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]
section:
(a) When more than 2 persons compete for a nonpartisan Rights of action and prosecutions saved. SECTION 4.
office, a recall primary shall be held. The 2 persons receiving [Repealed Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov.
the highest number of votes in the recall primary shall be the 2 1982.]
candidates in the recall election, except that if any candidate
Existing officers hold over. SECTION 5. [Repealed Nov.
receives a majority of the total number of votes cast in the recall
1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]
primary, that candidate shall assume the office for the remainder
of the term and a recall election shall not be held. Seat of government. SECTION 6. [Repealed Nov. 1982; see
(b) For any partisan office, a recall primary shall be held for 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]
each political party which is by law entitled to a separate ballot
and from which more than one candidate competes for the Local officers hold over. SECTION 7. [Repealed Nov.
party’s nomination in the recall election. The person receiving 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]
the highest number of votes in the recall primary for each politi-
cal party shall be that party’s candidate in the recall election. Copy of constitution for president. Section 8.
Independent candidates and candidates representing political [Repealed Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov.
parties not entitled by law to a separate ballot shall be shown on 1982.]
the ballot for the recall election only.
Ratification of constitution; election of officers. SEC-
(c) When a recall primary is required, the date specified TION 9. [Repealed Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29,
under sub. (2) shall be the date of the recall primary and the recall vote Nov. 1982.]
election shall be held on the Tuesday of the 4th week after the
recall primary or, if that Tuesday is a legal holiday, on the first Congressional apportionment. SECTION 10. [Repealed
day after that Tuesday which is not a legal holiday. Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]
(5) The person who receives the highest number of votes in
the recall election shall be elected for the remainder of the term. First elections. SECTION 11. [Repealed Nov. 1982; see
(6) After one such petition and recall election, no further 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]
recall petition shall be filed against the same officer during the Legislative apportionment. SECTION 12. [Repealed Nov.
term for which he was elected. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982.]
(7) This section shall be self−executing and mandatory.
Laws may be enacted to facilitate its operation but no law shall Common law continued in force. SECTION 13. Such
be enacted to hamper, restrict or impair the right of recall. [1923 parts of the common law as are now in force in the territory of
J.R. 73, 1925 J.R. 16, 1925 c. 270, vote Nov. 1926; 1979 J.R. 41, Wisconsin, not inconsistent with this constitution, shall be and
1981 J.R. 6, vote April 1981] continue part of the law of this state until altered or suspended
The recall of city officials is of statutory origin. Beckstrom v. Kornsi, 63 Wis. by the legislature.
2d 375, 217 N.W.2d 283. Enactment of s. 905.01 is an alteration or suspension of the common law. Davi-
This section applies to members of Congress. 68 Atty. Gen. 140. son v. St. Paul Fire & Marine Ins. Co. 75 Wis. 2d 190, 248 N.W.2d 433.
The common law privilege to forcibly resist an unlawful arrest is abrogated.
Marriage. SECTION 13. [As created Nov. 2006] Only a mar- State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998), 96−0914.
This section does not codify English common law circa 1776, but preserves law
riage between one man and one woman shall be valid or recog- that by historical understanding is subject to continuing evolution under the judicial
nized as a marriage in this state. A legal status identical or sub- power. The supreme court court has authority not only to alter but also to abrogate
stantially similar to that of marriage for unmarried individuals the common law when appropriate. The court’s responsibility for altering or abol-
ishing a common law rule does not end due to legislative failure to enact a statute
shall not be valid or recognized in this state. [2003 J.R. 29, 2005 to the contrary. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381,
J.R. 30, vote Nov. 2006] 01−3063.
The two propositions contained in the amendment creating this section plainly
relate to the subject of marriage. The general purpose of the marriage amendment Officers, when to enter on duties. SECTION 14.
is to preserve the legal status of marriage as between only one man and one woman.
Both propositions in the marriage amendment relate to and are connected with this [Repealed Nov. 1982; see 1979 J.R. 36, 1981 J.R. 29, vote Nov.
purpose. Therefore, the marriage amendment does not violate the separate amend- 1982.]
ment rule of Article XII, Section 1. McConkey v. Van Hollen, 2010 WI 57, 326 Wis.
2d 1; 783 N.W.2d 855, 08−1868. Oath of office. SECTION 15. [Repealed Nov. 1982; see 1979
Same−Sex Divorce and Wisconsin Courts: Imperfect Harmony? Thorson. 92
MLR 617. J.R. 36, 1981 J.R. 29, vote Nov. 1982.]
Implementing revised structure of judicial branch.
ARTICLE XIV. SECTION 16. [Created April 1977; as affected Nov. 1982, (1), (2),
(3) and (5) repealed.]
SCHEDULE (4) [Amended Nov. 1982] The terms of office of justices of
the supreme court serving on August 1, 1978, shall expire on the
Effect of change from territory to state. SECTION 1. July 31 next preceding the first Monday in January on which
That no inconvenience may arise by reason of a change from a such terms would otherwise have expired, but such advance-
territorial to a permanent state government, it is declared that all ment of the date of term expiration shall not impair any retire-

ment rights vested in any such justice if the term had expired on
the first Monday in January. [1975 J.R. 13, 1977 J.R. 7, vote
April 1977; 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982]

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Updated through January, 31, 2011

1 09−10 Wis. Stats.  

UPDATED THROUGH JANUARY 31, 2011.

PREAMBLE 19. Origin of bills.

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Referendum on banking laws. SECTION 5. [Repealed MISCELLANEOUS PROVISIONS

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