Aug. 24, 2010 – A former Jesuit priest, convicted in 2005 for indecent behavior with children in the 1960s, failed in his constitutional challenge to Wisconsin’s statute of limitations.

In State v. McGuire, 2010 WI 91 (July 20, 2010), the Wisconsin Supreme Court affirmed an appeals court order that denied Donald McGuire’s postconviction motion for relief.

McGuire challenged on constitutional grounds Wis. Stat. section 939.74, under which prosecutions are subject to a six-year statute of limitations. But the time limitations period stops running during periods that an actor is not publicly a resident of the state.

McGuire was charged in 2005 for crimes that occurred in Wisconsin between 1966-68, but at all times lived in the Chicago area. He challenged the Wisconsin statute mainly on the grounds that section 939.74, as applied to him, violated his constitutional rights under the privileges and immunities, equal protection, and due process clauses of the U.S. and Wisconsin constitutions.

Facts  

As a teacher and priest at Loyola Academy in Wilmette, Ill., McGuire began and continued inappropriate sexual relations with two students. On several occasions between 1966-68, McGuire transported the students to a cottage in Wisconsin and had relations there.

The victims came forward in 2003, and the state filed a criminal complaint in 2005 on five counts of indecent behavior with a child. McGuire was convicted on all five counts in 2006.

McGuire filed a motion for postconviction relief, seeking dismissal of the charges or a new trial. Both the circuit and appeals courts denied the motion. McGuire petitioned the supreme court.

McGuire argued that Wisconsin’s statute of limitations – section 939.74(3) – was unconstitutional as applied to his case, argued for reversal in the interest of justice under section 751.06, and raised due process and ineffective assistance of counsel claims.

Section 937.74(3) constitutional? 

McGuire argued that section 937.74(3) – requiring prosecution within six years of the commission of the crime but tolling periods where an actor resides out of state – violated the privileges and immunities, equal protection and due process clauses of the U.S. and Wisconsin constitutions as applied to the facts of the case.

But the supreme court – in an opinion written by Justice David Prosser – unanimously held that section 939.74(3) was constitutional as-applied to McGuire.

The court held that while application of the statute disadvantaged McGuire’s rights as a nonresident of Wisconsin, a statute of limitations defense is not a fundamental right that invokes the privileges and immunities clause.

McGuire also argued that he had a fundamental right to a defense under the equal protection and due process clauses. Section 939.74(3) burdens this fundamental right, McGuire argued, and the statute is unconstitutional as applied to him because it does not “substantially relate” to the state’s interest in detecting crimes and identifying and apprehending criminals.

First, the court held that tolling the statute of limitations did not deprive McGuire of the broader right to present a defense. Section 937.74(3) only deprived McGuire of the “right to a statute of limitations defense,” which is not a fundamental right, the court explained.

Second, the court held that although section 937.74(3) distinguishes between residents and nonresidents, the statute is “rationally related” to the state’s interest in detecting crimes and identifying and apprehending criminals. The statute is not made unconstitutional simply because McGuire was not hiding or did not flee, the court noted.

Claims barred by due process? 

McGuire argued that due process barred the claims against him because a 36-year passage of time prejudiced his defense. That is, critical witnesses died and evidence was destroyed.

The supreme court disagreed, noting a two-part test adopted in State v. Wilson, 149 Wis. 2d 878, 440 N.W.2d 534 (1989), and reaffirmed in State v. MacArthur, 2008 WI 72, 310 Wis. 2d 550, 750 N.W.2d 910, to determine whether the delay constituted a due process violation.

First, the defendant must show that actual prejudice resulted from the delay. Second, the defendant must show the delay “arose from an improper motive or purpose such as to gain tactical advantage over the accused,” the court explained.

Without evidence of improper motive, McGuire attacked the two-part test itself, arguing that improper motive is not necessary to find a due process violation.

But the supreme court found that federal circuit court precedent confirms the two-part Wilson test that requires the defendant to prove improper purpose on the part of the government in delaying prosecution.

“Because McGuire has failed to identify any improper motive or purpose on the part of the State, we need not address whether McGuire was prejudiced by the delay,” the court held. The court nevertheless found that McGuire failed to show that he was prejudiced by the delay.

Reversal in the interest of justice?

McGuire argued that reversal was warranted in the interest of justice under section 751.06, which grants the supreme court authority to reverse judgments if the real controversy has not been fully tried or it is probable that justice has been miscarried.

However, the supreme court rejected McGuire’s argument that the case was not fully tried because the 36-year passage of time made evidence unavailable.

“We simply have no idea what most of the unavailable witnesses would have said or how their testimony might have affected the relevant issues,” the court explained.

Finally, the court rejected McGuire’s argument that his trial attorney was ineffective, finding the attorney’s trial strategy to be reasonable.

Attorneys 

Robert Henak of the Henak Law Office S.C., Milwaukee, represented Donald McGuire. Assistant Attorney General Daniel O’Brien represented the state.