Tuesday, March 1, 2011

Determining the Constitutionality of Laws

By John DiMotto
As I am sure everyone knows, the budget problems of State of Wisconsin have been been the focus of local, national and international news for the past three weeks. Today, it was reported that the Milwaukee City Attorney has authored an opinion that provisions of the Governor's Budget Repair Bill are an unconstitutional infringement on the city's "home rule" authority over its pension plan, violates employees' contractual rights and violates workers' due process rights. There will undoubtedly be very lively and heated debate over whether he is correct.
Today, I want to examine the Rules of Statutory Construction that are considered by the courts when a constitutional challenge to legislation is raised.
When a party claims that a law is unconstitutional, that party is claiming that the law is at odds with a provision in either the US or the Wisconsin Constitution or both and, as such, the law cannot stand or be enforced. Black's Law Dictionary, 5th Edition defines "Constitution" as:
"The organic and fundamental law of a nation or a state...establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers. A charter of government deriving its whole authority from the governed. The written instrument agreed upon by the people ... of a particular state, as the absolute rule of action and decision for all departments (ie. branches) and officers of the government in respect to all the points covered by it, which must control until is shall be changed by the authority which established it (ie. by amendment), and in opposition to which any act or ordinance of any such department or officer is null and void."
It is a fundamental bedrock of our government, by virtue of the "separation of powers," that:
1) The Legislature enacts the law.
2) The Executive enforces the law.
3) The Judiciary interprets the law.
Thus, when a law is challenged as being unconstitutional -- an affront to the constitution -- it is the judiciary which makes the final decision.
A party has standing to challenge a statute's constitutionality if that party has a sufficient interest in the outcome of a justiciable controversy to obtain a judicial resolution of that controversy. Standing involves a two step analysis. The court must determine whether the plaintiff has suffered threatened or actual injury and the interest asserted must be recognized by law. see State v. Oak Creek, 232 Wis.2d 612 (2000).
The Rules of Statutory Construction as they pertain to constitutionality provide that:
1) Statutes enjoy a presumption of constitutionality, and,
2) All doubts are resolved in favor of constitutionality.
3) Therefore, a party challenging a statute's constitutionality bears a heavy burden and must demonstrate the statute is unconstitutional beyond a reasonable doubt.
see Ferdon v. Wisconsin Patients Compensation Fund, 284 Wis.2d 573 (2005).
The only exception to the challenger bearing the burden of proof is when a statute infringes on a First Amendment Right. In this instance, the State has the burden of proving constitutionality beyond a reasonable doubt. see State v. Trochinski, 253 Wis.2d 38 (2002).
A constitutional challenge to a law can be:
1) A "facial" challenge; that is, on its face, the law is unconstitutional in every context, or
2) An "as applied" challenge; that is, the law is unconstitutional as to the challenger alone.
see State v. Smith, 323 Wis.2d 377 (2010).
A constitutional challenge to a law can be based on:
1) Overbreadth -- a statute is overbroad when its language is so sweeping that its sanctions may be applied to constitutionally protected conduct which the State is not permitted to regulate. see County of Kenosha v. C & S Management Inc., 223 Wis.2d 373 (1999). In order to assert a claim of overbreadth, it is not necessary that a person's own conduct be constitutionally protected. The overbreadth analysis reflects the conclusion that possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted. Thus, if a statute included in its prohibition conduct which is constitutionally protected, it is void even if the person's own conduct is unprotected and may be prohibited by a more narrowly drawn law. see State v. Johnson, 108 Wis.2d 703 (Ct. App. 1982). The danger in overbroad statutes is that they provide practically unbridled administrative and prosecutorial discretion that may result in selected prosecution based on certain views deem objectionable law enforcement. However, overbreadth must be real and substantial. Marginal infringement or fanciful hypotheticals of inhibition which are unlikely to occur will not render a statute unconstitutional on overbreadth grounds. see State v. Stevenson, 236 Wis.2d 86 (2000).
2) Vagueness -- a statute is vague if it fails to afford proper notice of the conduct it seeks to proscribe. The test for vagueness is whether a statute is so obscure that men of ordinary intelligence must guess as to its meaning and differ as to its applicability. To withstand a vagueness challenge it must be sufficiently definite so that potential offenders are able to discern boundaries of proscribed conduct. see Johnson, supra. Procedural due process is at issue. see County of Kenosha, supra.
3) Procedural Due Process -- requires that a person who has life, liberty or property at stake must be afforded the opportunity to be heard at a meaningful time and in a meaningful manner. Failure of a statute to so provide renders a statute unconstitutional. see Estate of Makos v. Masons Health Care Fund, 211 Wis.2d 41 (1997).
4) Substantive Due Process -- the Fourteenth Amendment due process clause is a guarantee of "more than a fair process." It contains a substantive sphere as well barring certain government actions regardless of the fairness of the procedures used to implement them. The threshold inquiry when analyzing an alleged violation of substantive due process is whether the challenger has established a deprivation of a liberty or property interest protected by the constitution. see Dowhower v. West Bend Mutual Ins. Co., 236 Wis.2d 113 (2000).
5) Equal Protection -- a statute which treats members of similarly situated classes differently violates the Fourteenth Amendment. If the challenge implicates a fundamental right or suspect classification the statute is subject to a strict scrutiny test. It must be shown by the State that the regulation is necessary to serve a compelling state interest and that it is narrowly drawn. see State v. Baron, 318 Wis.2d 60 (2009). If the challenge does not implicate a fundamental right or suspect classification then the statute is subject to a rational basis test. It must be shown buy the challenger that the regulation is not rational. All doubts are resolved in favor of constitutionality. see Nankin v. Village of Shorewood, 245 Wis.2d 86 (2001).
Whenever there is a challenge to the constitutionality of a state statute, notice must be given to the Wisconsin Attorney General under 806.04(11) so he/she can decide whether the State wishes to be heard above and beyond the parties to the lawsuit.
If the Governor's Budge Repair Bill does become law, the constitutionality of some of the provisions of the bill (ie. home rule, worker contractual rights, worker due process) may be challenged in the courts. Furthermore, the challenger may also seek an injunction to prevent the challenged provisions from taking affect until the constitutionality of those provisions is ultimately decided. Any challenge may well result in a long and winding road.


  1. To whom should a private party appeal??? The chief judge of the district has just ruled that my concern (quote) is not something that is within the ambit of my responsibilities as Chief Judge of this particular district (unquote)---- even though it is a municipal code of one of the cities within his juristdicton

    1. Appeals can be very complex and difficult to navigate. Each type of case has a different appeal process. You should consult with an attorney with expertise in appeals to explore your options.