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Wisconsin Constitution – Construction – “New Federalism” – Double Jeopardy Clause

State v. Barbara E. Harp, 2005 WI App 250
For Harp: Aaron N. Halstead, Kathleen Meter Lounsbury, Danielle L. Carne

Issue/Holding: ¶13 n. 4:

The Fifth Amendment to the United States Constitution provides that no person “shall … be subject for the same offence to be twice put in jeopardy of life or limb ….” Article I, section 8 of the Wisconsin Constitution provides that “no person for the same offense may be put twice in jeopardy of punishment ….” Two recent decisions of the Wisconsin Supreme Court have concluded that certain provisions of the state constitution provide greater protections than analogous provisions of the federal constitution. State v. Knapp, 2005 WI 127, ¶¶1-2, __ Wis. 2d __, 700 N.W.2d 899 (No. 2000AP2590-CR) (construing protection against self-incrimination in article I, section 8 of the Wisconsin Constitution to be greater than the Fifth Amendment); State v. Dubose, 2005 WI 126, ¶¶39-41, __Wis. 2d __, 699 N.W.2d 582 (No. 2003AP1690-CR) (construing due process protection in article I, section 8 of the Wisconsin Constitution to be greater than the Fourteenth Amendment). Following State v. Seefeldt, 2003 WI 47, ¶15 n.4, 261 Wis. 2d 383, 661 N.W.2d 822, our analysis does not distinguish between the double jeopardy protections of the state and federal constitutions. Id. (“In construing Wisconsin ’s protection against double jeopardy protection, we are guided by the rulings of the U.S. Supreme Court.”) (citation omitted).

Did Harp even raise a state constitutional claim? The court doesn’t say; but if not, then this footnote is gratuitous. On the other hand, the aside might simply represent ongoing confusion about differential (i.e., as between state and federal constitutions) analysis. Indeed, it’s hard not to sympathize with the lower court on such a point: the supreme court’s New Federalism cases do not, to be blunt, offer any methodological guideposts. On the bright side: bold litigators will have to chart unmapped territory for the court. Saddle up, Lewis and Clark!

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