Legal Memorandum: Statute Compliance with Substantive Due Process

Issue: Under Wisconsin law, what principles do courts apply in reviewing a statute for compliance with substantive due process principles?

The Due Process Clause protects persons from governmental action that is arbitrary, wrong or oppressive, regardless of the fairness of procedures the state has implemented to apply the action.  State v. Wood, 2010 WI 17, ¶ 17, 323 Wis. 2d 321, 780 N.W.2d 63.  See also State ex rel. Hung Nam Tran v. Speech, 2010 WI App. ¶ 58, 324 Wis. 2d 567, 782 N.W.2d 106 (substantive due process protects against governmental action that either shocks the conscience or interferes with rights implicit in the concept of ordered liberty).  The statute must “unjustifiably abridge[] the Constitution’s fundamental constraints . . . [on] . . . what the government may do to people under the guise of law.”  In re Commitment of Laxton, 2002 WI 82, ¶ 10, n.8, 254 Wis. 2d 185, 647 N.W.2d 784 (emphasis added) (rejecting substantive due-process challenge of chapter 980, statute authorizing commitment of sex offenders). 

Generally, when the statute involves a fundamental right, it must further a compelling state interest and must be narrowly tailored to meet that interest.  In re Runsdell, 2001 WI App. 202, ¶ 5, 247 Wis. 2d 613, 634 N.W.2d 871 (civil commitment of sex offenders curtails their liberty to protect the public and to provide care and treatment to the offender).  When a fundamental right is not involved, the rational-basis test applies and the challenger must show that the statute is not rational.  Nankin v. Village of Shorewood, 2001 […]