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Supreme Court Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

| Civil Procedure | Criminal Law | Criminal Procedure |
| Insurance | Motor Vehicle Law | Municipal Law |
| Paternity | Public Records |

OWI - Constitutionality of Statute
Authorizing Seizure of Motor Vehicles

State v. Konrath, No. 96-1261-CR (filed 22 May 1998)

Wis. Stat. section 346.65(6) provides for seizure of "a motor vehicle" owned by certain repeat OWI offenders. The defendant raised three constitutional challenges to the statute. First, he argued that it violates Article I, section 12 of the Wisconsin Constitution by permitting forfeiture of estate because the statute does not require a nexus between the motor vehicle to be seized and the crime from which the seizure and forfeiture result. Second, he argued that the statute violates the Double Jeopardy Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution by permitting successive punishments because the statute does not require a nexus between the motor vehicle and the crime from which the seizure and forfeiture result. Finally, he argued that the statute violates the Due Process Clauses of the Fifth and Fourteenth Amendments by its failure to provide notice and hearing prior to seizure of the motor vehicle or a prompt post-deprivation hearing.

Rejecting the defendant's arguments in this case, the supreme court, in a majority decision authored by Justice Crooks, held:

1) The defendant lacks standing to assert a claim of forfeiture of estate as prohibited by Article I, section 12 of the Wisconsin Constitution. The statute in question is constitutional as applied to him because the forfeiture is civil in nature and there was, in fact, a nexus between the motor vehicle to be seized and forfeited and the OWI crime which the defendant committed. His assertion that the statute is facially overbroad fails because this type of challenge is limited to claims grounded in the First Amendment.

2) As applied to him, section 346.65(6) does not violate the Double Jeopardy Clauses of the U.S. and Wisconsin Constitutions. The forfeiture of his motor vehicle under section 346.65(6) is an in rem civil forfeiture. In rem civil forfeitures are distinct from punishment for a criminal offense and, therefore, the double jeopardy clause prohibition on multiple punishments is inapplicable. For the reasons stated above, the defendant lacks standing to mount a facial overbreadth attack on the statute.

3) The defendant's rights under the Due Process Clauses of the state and federal constitutions were not violated. Section 346.65(6) sets forth procedural due process protections. In this case the defendant was notified in writing and orally of the impending seizure and possible forfeiture of his vehicle on several occasions. He was given an opportunity to be heard at the status conference and at the plea and sentencing hearing before the circuit court. Further, this kind of case presents the kind of limited extraordinary circumstances under which immediate seizure of his vehicle is constitutionally permissible without preseizure notice and hearing.

Before concluding the opinion, the majority emphasized that its holding was premised on the facts presented in this case. Many of the defendant's attacks on the statute were grounded on the proposition that section 346.65(6) does not require a nexus between the motor vehicle to be seized and the vehicle that was used to commit the OWI offense. However, in this case, that nexus existed and the majority held that such nexus was essential to its holding that the statute is constitutional as applied to the defendant and does not constitute forfeiture of estate or an infliction of multiple punishments. However, said the court, "our holding does not encompass cases where the motor vehicle to be seized and forfeited is not the motor vehicle involved in the charged offense. Although we do not decide this issue, absent a nexus between the motor vehicle and the crime, we recognize that compelling constitutional challenges could be raised."

Chief Justice Abrahamson filed a dissenting opinion that was joined by Justice Bradley.

Zoning - Area Variances
- "Unnecessary Hardship" Standard

State v. Kenosha County Board of Adjustment, No. 96-1235 (filed 27 May 1998)

Wisconsin Statutes and the Kenosha County Ordinances call for a uniform 75-foot setback from the ordinary high water mark of navigable waters in unincorporated areas. In this case the property owner sought a zoning variance to allow construction of a deck at the rear of her house which would intrude upon the setback.

Despite opposition from the Department of Natural Resources, the Kenosha County Board of Adjustment voted to grant the variance. At the DNR's request, the state initiated a certiorari proceeding in which the circuit court affirmed the board's decision. Subsequently, the court of appeals affirmed the circuit court's judgment.

The Wisconsin Supreme Court, in a unanimous decision authored by Justice Geske, reversed and remanded. The issue before the supreme court was whether the Board of Adjustment properly applied the legal standard for determining "unnecessary hardship" in order to grant a petition for what is known as an "area" variance.

The state has given county boards of adjustment the power to grant exceptions to zoning regulations known as "variances." Through Wis. Stat. section 59.99(7) (1993-94) (which has been renumbered to Wis. Stat. section 59.694(7) (1996-97) without a change in substance), the boards are empowered "to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done." (Emphasis supplied.)

The supreme court concluded that the legal standard of "unnecessary hardship" specified in the statute requires that the property owner demonstrate that, without the variance, he or she has no reasonable use of the property. When the record before the board demonstrates that the property owner would have a reasonable use of his or her property without the variance, the purpose of the statute takes precedence and the variance request should be denied.

In this case the court concluded that the board of adjustment did not properly apply the legal standard for granting a variance and that its decision to grant the variance was not reasonably based on the evidence. Accordingly, it remanded for further proceedings consistent with its opinion.

Retroactive Child Support Obligations
- Adult Child - Court-appointed Counsel

Roberta Jo W. v. Leroy W., No. 96-2753 (filed 22 May 1998)

Roberta Jo's paternity had never been established during her minority. She was born in March 1976. Following high school graduation, Roberta Jo filed a petition requesting determination of paternity and child support. She was 18 years, eight months old when she filed the action. The judge ruled that Roberta Jo was not entitled to past, present, or future child support. In Fall 1995 the judge also determined that when Roberta Jo's time for appeal expired or when she filed a notice of appeal, the court-appointed attorney would be discharged and the county would be freed from paying further fees. The case was before the supreme court on certification.

The supreme court, in an opinion written by Justice Bablitch, affirmed in part and reversed in part. The court reviewed the legislative history in considerable detail. The pertinent statutes reflected no "legislative intent to overturn Wisconsin's settled precedent that a court has no authority to retroactively create a child support obligation for an adult." The case law and sections 767.51(3) and (4) establish that "[t]he circuit court only has authority to create a child support obligation directly in favor of a person who is less than 19 years old and is pursuing a high school diploma at the time he or she commences the action requesting support." The court considered and rejected three arguments against this result, including the argument that under the state constitution the trial judge denied a "remedy" for her "right."

The second issue concerned whether court-appointed counsel terminated upon the filing of a notice of appeal. The supreme court held that "after a notice of appeal was filed, the case was within the jurisdiction of the court of appeals, and the circuit court no longer had discretion to terminate court-appointed counsel." Section (Rule) 809.85.

Chief Justice Abrahamson, joined by Justice Bradley, concurred but wrote separately to emphasize the "disarray of the case law" construing the "right-to-a-remedy" provision of Wisconsin Constitution, Article I, section 9.

Death Certificates - Causation
- Amending Vital Records - Hearsay

Sullivan v. Waukesha, No. 96-3376 (filed 4 June 1998)

In 1990 Brian Sullivan was struck and killed by a train. The county medical examiner conducted an investigation, determined that Sullivan was a suicide, and listed suicide as the cause of death on Sullivan's death certificate. In 1995 Sullivan's mother petitioned the court to change the death certificate, producing evidence that her son lacked the motive to kill himself. The trial judge ruled that the medical examiner's original determination was not arbitrary or capricious.

On certification from the court of appeals, the supreme court reversed. Writing for the court, Justice Steinmetz first addressed the appropriate standard of review. Under Wis. Stat. section 69.12(1) the petitioner "alleges only that the information in a vital record does not represent the actual facts existing at the time the vital record was filed." Thus, "the circuit court's only role is to review the evidence presented by the petitioner and to determine whether the petitioner 'has established the actual facts of the event in effect when the record was filed.'" If the judge finds that the vital record does not accurately reflect the actual facts, "the court reports the actual facts to the state registrar." In making such factual determinations, the burden of proof is the ordinary civil burden: proof by the greater weight of the credible evidence. The medical examiner's findings are, however, subject to a rebuttable presumption of accuracy under Wis. Stat. section 903.01. To summarize, the petitioner must show by a preponderance of the evidence that the facts contained in the death certificate do not represent the actual facts in effect when the death certificate was filed.

Finally, the trial judge erred when it refused to admit a training pamphlet prepared by the Department of Transportation. Although hearsay, the pamphlet was admissible under the public records exception, section 908.03(8).

Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.