Vol. 71, No. 7,
July 1998
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 |
Motor
Vehicle Law
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.
Municipal
Law
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.
Paternity
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.
Public
Records
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.
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