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Constitutional Defenses – Ex Post Facto – Change in Statute of Limitations

State v. Jeffrey B. Haines, 2003 WI 39, 2002 WI App 139
For Haines: Mark A. Huesmann, Sonja Davig Huesmann

Issue/Holding: An extension of the limitation period for prosecuting a crime, before the prior limitation period has expired, doesn’t violate the ex post facto clause of the Wisconsin Constitution.

¶15. In sum, the court of appeals succinctly and correctly reasoned that:

[T]he 1994 amendment to Wis. Stat. § 939.74(2)(c) did not remove a defense that was available to Haines in 1992. At the time of the alleged assault, Haines had no statute of limitations defense. Indeed such “defense” would not have been available until 1999, when the former statute of limitations would have run. Accordingly, there is no ex post fact violation under the third consideration set forth in Kurzawa.

State v. Haines, 2002 WI App 139, ¶7, 256 Wis. 2d 226, 647 N.W.2d 311. We cannot improve upon the court of appeals’ analysis and reasoning. Accordingly, we affirm the decision of the court of appeals that applying the amended age 26 statute of limitations under Wis. Stat. § 939.74(2)(c) (1993-94) to Haines does not violate the ex post facto clause of the Wisconsin Constitution.

Haines raised no argument under the US Constitution. ¶6 n. 6. This omission is probably due to apparent uniform agreement “that retroactive application of an amended statute of limitations, which is enacted at a time when the prior limitations period has not yet run, does not violate the ex post facto clause.” ¶14, cases collected id., n. 7.

The Supreme Court subequently held that retroactive enlargement of an expiredstatute of limitations violates ex post facto protection. Stogner v. California, 01-1757 — a result that doesn’t affect Haines, in that the SOL enlargement occurred pre-expiration. See, for example, Renderos v. Ryan, 9th Cir No. 05-16454, 11/8/06 (legislative enlargement of limitation period while claims against Renderos still running “precisely the type of statute that Stogner expressly stated it was not striking down”).

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