MADISON, Wis. (CN) - A challenge to the DNA-testing fee Wisconsin charged people convicted of misdemeanors is back in state court after settlement talks failed.
As with the case filed over the summer in Dane County Circuit Court, the new complaint filed Thursday names Marcell Ward as lead plaintiff.
Ward and three others hope to represent a class of Wisconsinites convicted of misdemeanors whom the state charged $200 for DNA tests that were never actually performed.
The plaintiffs say they agreed to dismiss the original case, in hopes of settling out of court, after the state removed it to federal court.
Their lawsuit takes on a provision of the 2013 law, Wis. Act 20, which allowed Wisconsin to impose a $200 surcharge against individuals charged with misdemeanors before the court required the suspects to submit to a DNA test.
"The act created a period of 14 months between January 1, 2014, and April 1, 2015, where circuit courts were required to impose DNA surcharges, but not permitted to order misdemeanants to actually submit any DNA sample," according to the complaint, a verbatim recitation of the original lawsuit filed in July.
Ward says such an ex post facto punishment is not a "civil surcharge" because it "bears no rational connection" to the cost it is meant to offset.
"The act required circuit courts to impose the DNA surcharge for misdemeanants solely based on whether they were sentenced or placed on probation on or after January 1, 2014," the complaint states. "The act did not address the issue of when the misdemeanor offense occurred, thereby increasing the punishment after the fact."
Ward contends that this unconstitutional taking violates both the state and U.S. constitutions.
The case comes on the heels of a May decision by the Wisconsin Court of Appeals, which found that the state had unconstitutionally applied a related provision of the 2013-15 state budget.
In Wisconsin v. Radaj, the court said increasing the DNA surcharge based on the number of convictions - rather than on the cost of analysis - amounted to ex post facto punishment.
Ward's case asks Judge John Markson to certify a class of misdemeanants who allegedly committed crimes before 2014 and sentenced or placed on probation between Jan. 1, 2014, and April 1, 2015, and paid the required surcharge.
The class wants the law at issue struck is unconstitutional, plus repayment of the surcharges they paid with interest. The new complaint says no progress was made on reaching a settlement.
The plaintiffs are represented by John Bradley with StrangBradley, who did not immediately return a request for comment.
Charlotte Gibson, an assistant attorney general with the Wisconsin Department of Justice, said the state is working on an administrative remedy for the class of misdemeanants who paid for a test they did not take.
Adding that the federal claims have been exhausted, Gibson said any settlement or solution will this time remain in state court.
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