Six-Person Juries – Equal Protection – Forfeiture and Waiver
Milwaukee Cnty. v. Mary F.-R., 2013 WI 92 (filed 26 Nov. 2013)
HOLDING: In Wis. Stat. chapter 51 proceedings, a six-person nonunanimous jury does not violate the right to equal protection.
SUMMARY: A six-person jury unanimously found that Mary F.-R. met the requirements for a mental commitment under Wis. Stat. section 51.20(1)(a). Mary had repeatedly demanded a 12-person jury before trial. The court of appeals affirmed, finding that she had forfeited her equal protection argument by failing to make it at the circuit court and by failing to object to the six-person jury at the time it was empanelled.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
The supreme court affirmed Mary F.R.’s commitment order and denied her constitutional challenge, in an opinion written by Justice Crooks. First, the supreme court decided to reach the merits, putting aside the question whether Mary had forfeited her arguments at the circuit court (see ¶ 34). Second, it held that the rational-basis standard applied to Mary’s equal protection argument (see ¶ 38).
Third, addressing the merits of Mary’s contention, the court held that a nonunanimous six-person jury did not violate equal protection when compared to the 12-person unanimous juries that are used in cases under Wis. Stat. chapter 980 (commitment of sexually violent persons). Although commitments under chapter 51 and chapter 980 have some similarities, the supreme court nonetheless found compelling differences that provided a rational basis for this disparate approach to juries. For example, protecting the individual himself or herself is a goal in chapter 51 cases but not in chapter 980 proceedings (see ¶ 47).
The court acknowledged, however, that its prior discussions of these two commitment regimes and whether persons “are similarly situated merits revisiting” (¶ 55). Moreover, the court purposely declined in this case to use a “tiered equal protection analysis, in which a threshold question of whether parties are similarly situated must be answered first before reaching the question of equal protection” (id.). The court then revisited several earlier chapter 980 cases.
Chief Justice Abrahamson joined the majority opinion but concurred separately to address issues regarding waivers and forfeitures and to discuss the substantive core of the right to trial by jury.
Justice Ziegler also concurred, joined by Justice Roggensack and Justice Gableman. They concluded that Mary had forfeited her right to raise her equal protection claim by not properly preserving it at the circuit court level.
Challenge to Nonrenewal of an Alcohol License – Certiorari Review Mandated
Nowell v. City of Wausau, 2013 WI 88 (filed 6 Nov. 2013)
HOLDING: Certiorari is the correct standard of review for a court to apply when, pursuant to Wis. Stat. section 125.12(2)(d), it reviews a municipal decision not to renew an alcohol license.
SUMMARY: In this case, the supreme court determined the standard of review for a court to apply when, pursuant to Wis. Stat. section 125.12(2)(d), it reviews a municipal decision not to renew an alcohol license. The statute itself is silent on the issue. The circuit court used certiorari review. The court of appeals reversed the circuit court, concluding that the circuit judge should have used a de novo standard of review and independently determined whether the licensee is entitled to renewal. See 2012 WI App 100.
In a unanimous decision authored by Justice Bradley, the supreme court reversed the court of appeals. It concluded that, “although the statute does not expressly address which standard of review is to be applied, we are persuaded that an examination of the legislative history, our prior case law, and the public policy underlying the deference due to a municipality’s alcohol licensing decisions militate in favor of certiorari review. Therefore, we conclude that certiorari is the correct standard of review for a court to apply when, pursuant to Wis. Stat. § 125.12(2)(d), it reviews a municipal decision not to renew an alcohol license” (¶ 54).
In such certiorari proceedings, courts are properly limited to determining “(1) whether the [municipality] kept within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question” (¶ 48).