Wisconsin Constitution
Article I - Declaration Of Rights
Section 12 - Attainder; ex post facto; contracts.

Section 45.37 (9), Stats. 1963, constituted a contract as to the property an applicant for admission to the Grand Army Home had to surrender, and to apply a later amendment would be unconstitutional. Estate of Nottingham, 46 Wis. 2d 580, 175 N.W.2d 640.

Although the obligation of a contract is not an absolute right but one that may yield to the compelling interest of the public, the public purpose served by a law mandating rent reductions due to property tax relief is not so vital so as to permit such an impairment of contract. State ex rel. Bldg. Owners v. Adamany, 64 Wis. 2d 280, 219 N.W.2d 274.

Retroactive application of s. 57.06, 1987 stats. [now s. 304.06], as amended in 1973, increasing the period to be served by state prison inmates imposed an additional penalty and violated the prohibition against ex post facto legislation. State ex rel. Mueller v. Powers, 64 Wis. 2d 643, 221 N.W.2d 692.

The legislative preclusion against the State Medical Society's divesting itself of control of ch. 148, disability plans did not constitute any impairment of the society's charter because: 1) the grant of ch. 148 powers is permissive and voluntarily exercised by the society; 2) the ch. 148 grant is in the nature of a franchise rather than a contract and cannot be viewed as unalterable or it would constitute a delegation of inalienable legislative power; and 3) the constitutional interdiction against statutes impairing contracts does not prevent the state from exercising its police powers for the common good. State Medical Society v. Comm. of Insurance, 70 Wis. 2d 144, 233 N.W.2d 470.

When a probation statute was amended after a crime was committed but before the accused pled guilty and was placed on probation, application of the amended statute to probation revocation proceedings offended the ex post facto clause. State v. White, 97 Wis. 2d 517, 294 N.W.2d 36 (Ct. App. 1979).

A challenge to legislation must prove: 1) the legislation impairs an existing contractual relationship; 2) the impairment is substantial; and 3) if substantial, the impairment is not justified by the purpose of the legislation. Reserve Life Ins. Co. v. La Follette, 108 Wis. 2d 637, 323 N.W.2d 173 (Ct. App. 1982).

A mortgage contract entered into in 1977 and controlled by the 1971 statutes, which provided for a redemption period of 12 months upon foreclosure, could not be altered by a 1978 legislative enactment that reduced the redemption period to 6 months. An act that in any degree modifies the obligation of the contract by attempting to relieve the one party from any duty by the contract assumed is repugnant to the constitutional prohibition. Burke v. E. L. C. Investors, Inc. 110 Wis. 2d 406, 329 N.W.2d 259 (Ct. App. 1982).

The ex post facto prohibition applies to judicial pronouncements as well as legislative acts. The question to be addressed is whether the new law criminalizes conduct that was innocent when committed. State v. Kurzawa, 180 Wis. 2d 502, 509 N.W.2d 712 (1993).

Legislation creating penalty enhancers resulting from convictions prior to the effective date does not run afoul of the ex post facto clause. State v. Schuman, 186 Wis. 2d 213, 520 N.W.2d 107 (Ct. App. 1994).

An ex post facto law is one that punishes as a crime an act previously committed, that: 1) was innocent when done; 2) makes more burdensome the punishment for a crime, after its commission; or 3) deprives one charged with a crime of any defense available at the time the act was committed. State v. Thiel, 188 Wis. 2d 695, 524 N.W.2d 641 (1994).

Retroactive application of a new statute of limitations, enacted at a time when the old limitations period has not yet run, does not violate the ex post facto clause. State v. Haines, 2003 WI 39, 261 Wis. 2d 139, 661 N.W.2d 72, 01-1311.

In any challenge to a law on double jeopardy and ex post facto grounds, the threshold question is whether the ordinance is punitive, as both clauses apply only to punitive laws. Courts employ a two-part “intent-effects" test to answer whether a law applied retroactively is punitive and, therefore, an unconstitutional violation of the Double Jeopardy and Ex Post Facto Clauses. If the intent was to impose punishment, the law is considered punitive and the inquiry ends there. If the intent was to impose a civil and nonpunitive regulatory scheme, the court must determine whether the effects of the sanctions imposed by the law are so punitive as to render them criminal. City of South Milwaukee v. Kester, 2013 WI App 50, 347 Wis. 2d 334, 830 N.W.2d 710, 12-0724.

In evaluating a claim brought under the contract clause, the court first considers whether the contested state legislation has operated as a substantial impairment of a contractual relationship. This inquiry has three components: 1) whether there is a contractual relationship; 2) whether a change in law impairs that contractual relationship; and 3) whether the impairment is substantial. If the legislative act constitutes a substantial impairment to a contractual relationship, it will still be upheld if a significant and legitimate public purpose for the legislation exists. If a significant and legitimate purpose exists for the challenged legislation, the question becomes whether the legislature's impairment of the contract is reasonable and necessary to serve an important public purpose. Madison Teachers, Inc. v. Walker, 2014 WI 99, 358 Wis. 2d 1, 851 N.W.2d 337, 12-2067.

For a legislative enactment to be considered a contract, the language and circumstances must evince a legislative intent to create private rights of a contractual nature enforceable against the state. This requires the court, when reviewing a particular legislative enactment, to suspend judgment and proceed cautiously both in identifying a contract within the language of a regulatory statute and in defining the contours of any contractual obligation. Madison Teachers, Inc. v. Walker, 2014 WI 99, 358 Wis. 2d 1, 851 N.W.2d 337, 12-2067.

Under Calder v. Bull, 3 U.S. 386, “every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender," is a prohibited ex post facto law. A post-offense change in the law making hearsay evidence admissible at a preliminary hearing did not violate a defendant's ex post facto rights. The hearing is not held “in order to convict the offender," but rather to determine if probable cause exists to bind over a defendant for trial, at which the decision whether to convict occurs. State v. Hull, 2015 WI App 46, 363 Wis. 2d 603, 867 N.W.2d 419, 14-0365.

To determine whether a statute is punitive, the court applies the intent-effects test. The second part of the intent-effects test requires the court to examine the effect of the statute. Seven factors guide the court's analysis of whether the statute actually punishes a defendant: 1) does the statute involve an affirmative disability or restraint; 2) has the sanction at issue historically been regarded as punishment; 3) will the sanction be imposed only after a finding of scienter; 4) does the statute promote the traditional aims of punishment — retribution and deterrence; 5) is the behavior to which the sanction applies already a crime; 6) is there an alternative purpose to which the sanction may be rationally connected; and 7) is the sanction excessive in relation to the alternative purpose assigned. State v. Williams, 2018 WI 59, 381 Wis. 2d 661, 912 N.W.2d 373, 16-0883.

A statute is an ex post facto law only if it imposes punishment. In Muldrow, 2018 WI 52, the court determined that neither the intent nor the effect of lifetime global positioning system (GPS) tracking is punitive. Thus, GPS tracking does not violate the ex post facto clause. Kaufman v. Walker, 2018 WI App 37, 382 Wis. 2d 774, 915 N.W.2d 193, 17-0085.

Constitutionality of rent control discussed. 62 Atty. Gen. 276.