State v. Dubose

JON E WILCOX, J.

¶ 54. {dissenting). I agree with Justice Roggensack that if a constitution is to mean anything, its principles must not be subject to change based on the prevailing winds of the time. See Justice Roggensack's dissent, ¶ 80.

¶ 55. The Fourteenth Amendment to the United States Constitution provides, in relevant part: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Wisconsin equivalent of the Federal Due Process Clause, Article I, Section 8 of the Wisconsin Constitution, provides, in relevant part: "No person may be held to answer for a criminal offense without due process of law[.] Both clauses are virtually identical. 1

*181 ¶ 56. Seven years ago, the author of today's majority opinion recognized: "This court has repeatedly stated that the due process clauses of the state and federal constitutions are essentially equivalent and are subject to identical interpretation." State v. Hezzie R., 219 Wis. 2d 848, 891 , 580 N.W.2d 660 (1998) (emphasis added). See also State v. Harris, 2004 WI 64 , ¶ 2 n.1, 272 Wis. 2d 80 , 680 N.W.2d 737 (accord); County of Kenosha v. C& S Mgmt., Inc., 223 Wis. 2d 373, 393 , 588 N.W.2d 236 (1999) ("On more than a few occasions we have expressly held that the due process and equal protection clauses of our state constitution and the United States Constitution are essentially the same[.]"); State v. Greenwold, 189 Wis. 2d 59, 71 , 525 N.W.2d 294 (Ct. App. 1994) ("[I]t is well established that the due process clause of the Wisconsin Constitution is the substantial equivalent of its respective clause in the federal constitution.").

¶ 57. Likewise, in Thorp v. Town of Lebanon, 2000 WI 60 , ¶ 35 n.11, 235 Wis. 2d 610 , 612 N.W.2d 59 , this court ruled:

We treat the Thorps' claims under the federal Constitution consistently with their claims under the state constitution because ordinarily there is no discernible difference in intent between the Equal Protection and Due Process Clauses under the Wisconsin Constitution and the United States Constitution. Compare U.S. Const, amend. XIV with Wis. Const, art. I, §§ 1, 8. State v. Agnello, 226 Wis. 2d 164, 180-81 , 593 N.W.2d 427 (1999) (stating that "[w]here ... the language of the provision in the state constitution is *182 'virtually identical1 to that of the federal provision or where no difference in intent is discernible, Wisconsin courts have normally construed the state constitution consistent with the United States Supreme Court's construction of the federal constitution") (citing State v. Tompkins, 144 Wis. 2d 116, 133 , 423 N.W.2d 823 (1988)).

¶ 58. In sum, our decisions have recognized that because the language of the two provisions is almost identical, there is simply no basis to conclude that the drafters of the Wisconsin Constitution intended our Due Process Clause to mean anything different than its federal analogue. Furthermore, this court has repeatedly recognized that the unwritten due process protection in Article I, Section 1 of the Wisconsin Constitution is the same as that accorded under the Fourteenth Amendment to the United States Constitution.

¶ 59. As this court explained in Reginald D. v. State, 193 Wis. 2d 299, 306-07 , 533 N.W.2d 181 (1995):

The Fourteenth Amendment to the United States Constitution provides "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The functional equivalent of this clause is found in Article I, sec. 1, of the Wisconsin Constitution: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed." As noted in State ex rel. Sonneborn v. Sylvester, 26 Wis. 2d 43, 49-50 , 132 N.W.2d 249 (1965), even though Article I, sec. 1, is based on the Declaration of Independence, "there is no substantial difference" between its equal protection and due process protections and that of the Fourteenth Amendment." See also *183 [State v. McManus, 152 Wis. 2d 113, 130 , 447 N.W.2d 654 (1989)] ("This court has held that the due process and equal protection clauses of the Wisconsin Constitution are substantial equivalents of their respective clauses in the federal constitution); Funk v. Wollin Silo & Equipment, Inc., 148 Wis. 2d 59 , 61 n.2, 435 N.W.2d 244 (1989) ('We have given the equal-protection provision of the Wisconsin Constitution and the parallel clause of the United States Constitution identical interpretation.").

¶ 60. The legitimacy of this parallel interpretation of the due process clauses of the Wisconsin Constitution and the federal constitution has been recognized by this court throughout Wisconsin's history. As this court discussed in Sonneborn, 26 Wis. 2d at 49 -50:

Preliminarily, we point out that sec. 1, art. I of the Wisconsin constitution is framed in language of a Declaration of Rights and reminiscent of the Declaration of Independence, and many times has been held to be substantially equivalent of the due-process and the equal-protection clauses of the Fourteenth amendment to the United States constitution. In Black v. State (1902), 113 Wis. 205 , 89 N.W. 522 , the court said that the section must mean "equality before the law, if it means anything," and, "The idea is expressed more happily in the Fourteenth amendment." Again, in Pauly v. Keebler (1921), 175 Wis. 428 , 185 N.W. 554 , it was said in referring to the Fourteenth amendment that the first article of the Declaration of Rights in our constitution was a substantially equivalent limitation of legislative power and "our legislature is bound to accord all persons within its jurisdiction the equal protection of the laws." More recently we reaffirmed the concept that sec. 1, art. I, is to be equated with the Fourteenth amendment in Boden v. Milwaukee (1959), 8 Wis. 2d 318 , 99 N.W.2d 156 ; Lathrop v. Donohue (1960), 10 Wis. 2d 230 , 102 N.W.2d 404 ; and Haase v. Sawicki (1963), *184 20 Wis. 2d 308 , 121 N.W.2d 876 . Since there is no substantial difference between the two constitutions, we will henceforth refer only to the Fourteenth amendment of the United States constitution.

¶ 61. Today the majority alters course and abandons this long line of well-established precedent, contending that the Due Process Clause of the Wisconsin Constitution now affords greater protections than its federal counterpart. In doing so, the majority provides no legal justification for its decision other than its raw power to do so. See majority op., ¶ 40. The majority even recognizes that as a result, the exact same words in the federal and state constitutions now mean different things according to this court. Id., ¶ 41. Yet, the majority fails to articulate a rationale for how identical language in the two documents can mean the same thing for a number of years and now suddenly mean something different. Simply stating that a majority of the court disagrees with a United States Supreme Court decision and has the power to construe our state constitution more broadly is not a principled basis for suddenly rejecting our long history of interpreting the due process clauses of the federal and state constitutions in concert.

¶ 62. Given the nearly identical language in the two provisions and this court's historic practice of interpreting the two provisions in the same fashion, the majority simply has no support for its conclusion that the language in Article I, Section 8 "necessitates" a rejection of the United States Supreme Court's opinions in Neil v. Biggers, 409 U.S. 188 (1972), and Manson v. Brathwaite, 432 U.S. 98 (1977), and that the these opinions "do[ ] not satisfy" the requirements of Wisconsin's due process clause. Majority op., ¶ 39.

*185 ¶ 63. The majority thus has no legal basis for its conclusion that Article I, Section 8 of the Wisconsin Constitution requires a radical change in our law governing showups. Simply put, Article I, Section 8 "necessitates" the rule announced by the court only because a majority of justices on this court wills it to be so. Thus, I agree with Justice Roggensack that "[t]he rule of law announced today is not based on constitutional principle." Justice Roggensack's dissent, ¶ 87.

¶ 64. This is the second time this term this court has abandoned our practice of interpreting similarly worded provisions of the state and federal constitutions in concert. In State v. Knapp, 2005 WI 127 , 285 Wis. 2d 86 , 700 N.W.2d 899 , this court abandoned our previous jurisprudence holding that Article I, Section 8 of the Wisconsin Constitution does not create broader rights than those provided by the Fifth Amendment of the United States Constitution. Thus, a majority of this court has not only twice unjustifiably rejected the strictures of stare decisis, but it has needlessly called in question countless opinions of this court that have relied on a parallel interpretation of the Wisconsin and federal constitutions.

¶ 65. Furthermore, I, too, am troubled by the majority's reliance on recent social science "studies," majority op., ¶¶ 29-30, presented by advocacy groups, to justify its departure from stare decisis. Not only is such data disputed, as recognized by Justice Roggen-sack, see Justice Roggensack's dissent, ¶¶ 89-91, but, more importantly, it is not a valid basis to determine the meaning of our constitution. The majority fails to adequately explain how the meaning of the text of the constitution can change every time a new series of *186 social science "studies" is presented to the court. 2 If the text is so fluid, then our constitution is no constitution at all, merely a device to be invoked whenever four members of this court wish to change the law.

¶ 66. It is not the function of this court to create what it considers to be good social policy based on data from social science "studies." That is the province of the legislature. Our task is to render decisions based on legal principles and constitutional authority. See Panzer v. Doyle, 2004 WI 52, ¶ 39 , 271 Wis. 2d 295 , 680 N.W.2d 666 .

¶ 67. There must be consistency in our jurisprudence if our decisions are to have any semblance as law and not simply the unfettered will of a majority of the members of this court. Because I agree that "constitutional principles are not to change depending on what social science theory is in fashion[,]" Justice Roggensack's dissent, ¶ 80, and because the mere ability of the court to construe the Due Process Clause of the state constitution more broadly than its federal counterpart does not justify the majority's decision to abandon our history of according both provisions an identical interpretation, I dissent.

Wisconsin courts have also recognized a co-extensive due process right originating from Article I, Section 1 of the Wisconsin Constitution, which provides: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed." See Reginald D. *181 v. State, 193 Wis. 2d 299, 306-07 , 533 N.W.2d 181 (1995); State v. McManus, 152 Wis. 2d 113, 130 , 447 N.W.2d 654 (1989); State ex rel. Sonneborn v. Sylvester, 26 Wis. 2d 43, 49-50 , 132 N.W.2d 249 (1965).

This is the second time this term that a majority of the court has utilized "studies" and "data" to alter the meaning of our constitution. See generally Ferndon v. Wisconsin Patients Compensation Fund, 2005 WI 125 , 284 Wis. 2d 573 , 701 N.W.2d 440 .