Legal Memorandum: Unconstitutionality of a Statute and Burden

Issue: Under Wisconsin law, what is the burden facing a party who seeks to establish the unconstitutionality of a statute?

Area of Law: Constitutional Law, Litigation & Procedure
Keywords: Unconstitutionality of a statute; Burden
Jurisdiction: Federal, Wisconsin
Cited Cases: 328 Wis. 2d 649; 787 N.W.2d 922; 254 Wis. 2d 185; 647 N.W.2d 784
Cited Statutes: None
Date: 09/01/2014

Statutes are presumed to be constitutional, and all doubts must be resolved in favor of constitutionality. In re Commitment of Laxton, 2002 WI 82, ¶ 18, 254 Wis. 2d 185, 647 N.W.2d 784.  The strong presumption in favor of constitutionality places a heavy burden on the challenger.  Thus, it is insufficient to show that the statute’s constitutionality is doubtful or that the statute is probably unconstitutional.  Instead, the statute’s unconstitutionality must be shown beyond a reasonable doubtSee Wisconsin Med. Soc’y, Inc. v. Morgan, 2010 WI 94, ¶ 37, 328 Wis. 2d 649, 787 N.W.2d 922.  


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