City of Neenah v. Alsteen
| Decision Date | 10 May 1966 |
| Citation | 142 N.W.2d 232,30 Wis.2d 596 |
| Parties | CITY OF NEENAH, a Municipal Corporation, Respondent, v. Clem ALSTEEN, Appellant. |
| Court | Wisconsin Supreme Court |
Van Susteren, Bollenbeck, Patterson, Froehlich & Jensen, Appleton, for appellant.
Charles E. Schaller, Neenah, for respondent.
Julian Bradbury, Legal Counsel, League of Wis. Municipalities, Madison, amicus curiae.
The defendant sought the adverse examination of the plaintiff's police officers under the provisions of sec. 326.12, Stats. 1
This statute provides that the right of adverse examination shall be available 'in any civil action.'
The trial judge, however, took the position that the particular violation was unlike the ordinary civil action in that it partook of many of the characteristics of a criminal action. In his opinion he particularly stressed the recent case of City of Madison v. Geier (1965), 27 Wis.2d 687, 135 N.W.2d 761, which held that where conduct complained of under an ordinance is also a crime under a parallel state law, the burden of proof must be sustained by evidence that is 'clear, satisfactory, and convincing,' rather than a 'mere preponderance.' Emphasis is also placed on our conclusion in City of Milwaukee v. Wuky (1965), 26 Wis.2d 555, 562, 133 N.W.2d 356, that a defendant in a municipal forfeiture action is not entitled to a special verdict, but rather to a verdict of guilty or not guilty.
We stated in City of Milwaukee v. Wuky, supra, p. 562, 133 N.W.2d p. 360, 'that it is an oversimplification to treat forfeiture actions as purely civil in nature.' However, it should be noted that in that very case we relied upon the opinion of Girtz v. Oman (1963), 21 Wis.2d 504, 509, 510, 124 N.W.2d 586, and the 'wide discretion possessed by the trial court to amend pleadings in a civil action * * *' (emphasis supplied). Wuky, supra, 26 Wis.2d p. 560, 133 N.W.2d p. 359. We also pointed out that the statutes (sec. 66.12) require a plea of not guilty, guilty, or nolo contendere; and, hence, the verdict couched in the terms of guilty or not guilty determines the only issues that are before the court or jury pursuant to the plea. In that sense, the verdict is a special one. 2
It should also be noted that, on grounds of public policy, we concluded that the socalled 'middle burden of proof' should be utilized in enforcing municipal ordinances that were also crimes under the statute; but, significantly, that conclusion was reached by analogy to similar civil actions prosecuted by private individuals. The court said:
City of Madison v. Geier, supra, 27 Wis.2d p. 692, 135 N.W.2d p. 763.
The analogy drawn in Geier is to the civil fraud case and the conclusion to be drawn from Geier is not that an ordinance violation is criminal in nature, but rather that it is a civil action similar to the fraud and undue-influence cases that, for public policy resons, require the 'middle burden of proof.'
That the essential nature of a forfeiture action is civil is explicit in our statutory law. In the chapter on municipal law, it is provided in sec. 66.12(1)(a), Stats., that 'an action for violation of a city or village ordinance, resolution or bylaw is a civil action. * * *'
This terminology is particularly significant since that section, sec. 66.12, Stats., then goes on to provide that the forfeiture or penalty may be collected in an action commenced by a warrant, and may be coupled with the arrest and holding for trial unless bail is furnished. Lest, however, anyone should conclude that this procedure, having the overtones of criminal law, should be construed as changing the essential nature of the action, the entire section was prefaced with the statement that negates any implication that the legislature contemplated that ordinance enforcement is criminal in nature. While utilizing the valuable procedural tools of the criminal law (to the extent stated), the legislature made it crystal clear that 'an action for violation of a city or village ordinance * * * is a civil action.'
Moreover, the quasi-criminal procedure set forth in ch. 66, Stats., is but one way of enforcing a village or city ordinance. Ch. 288 provides that:
* * *'
This is a purely civil action and is a time honored method of enforcing municipal ordinances and collecting a forfeiture for their violation. We stated in City of South Milwaukee v. Schantzen (1950), 258 Wis. 41, 43, 44 N.W.2d 628, 629:
'The statutes authorize the collection of forfeitures in two ways: by suit based upon a complaint, sec. 288.10, Stats., and by an affidavit by the plaintiff or someone in his behalf followed by the issue of a warrant * * *.'
Sec. 260.05, Stats., provides that:
We held in State ex rel. Keefe v. Schmiege (1947), 251 Wis. 79, 84, 28 N.W.2d 345, 174 A.L.R. 1338, that under the Wisconsin Constitution, sec. 22, art. IV, that crimes or misdemeanors cannot be created by city ordinances. We thus have subsequently held that, 'An action to recover a forfeiture for violation of an ordinance is thus a civil proceeding and its procedure is that of other civil proceedings.' City of South Milwaukee v. Schantzen, supra, 258 Wis. p. 43, 44 N.W.2d p. 629.
Our cases have followed this rationale, and in practice this court has consistently treated the proceedings to enforce an ordinance as a civil action.
Instances of that approach have been cited above. In addition, this court has held that amendment of pleadings is the same as in other civil actions. 3 A city has the right to call the defendant adversely in a forfeiture action. 4 Either party to a forfeiture action may demand a jury trial under the civil procedure statutes. 5 The trial judge has the power to set aside a jury verdict and to enter judgment according to the proof. 6 The aggrieved party may not take a writ of error as in a criminal case but must appeal. 7 The court may allow inspection under sec. 269.57, Stats., of property (drunkometer) in possession of the city. 8 In respect to imprisonment, the criminal form of judgment may not be used. 9 It was held that an appeal from an ordinance violation must be taken from the municipal court to the county court under the civil statutes and not to the supereme court under the existing criminal statutes. 10 Additionally, the city has the same right of appeal as the defendant, clearly following the civil rule and unlike the state's limited right of appeal under the criminal law. 11
We conclude that prosecution for the violation of an ordinance is a civil action as referred to in sec. 326.12, Stats., providing that in 'any civil action or proceeding, any party may examine any person * * * upon oral examination * * *' Therefore, the defendant under this statute was authorized
to examine the city's officers adversely. Did the trial
judge's refusal to allow the adverse examination
constitute an abuse of discretion?
To conclude, as we did above, that an adverse examination is generally available in a civil action is not sufficient to dispose of the case before us. While the adverse examination is available in any civil action, its use may be suppressed or circumscribed under the terms of the statutory provisions that create the right. Sec. 326.12(3), Stats., provides that 'After notice is served for taking a deposition, upon motion reasonably made by any party or by the person to be examined, and, upon notice and for good cause shown, the court may make an order that the deposition shall not be taken, or that certain matters shall not be inquired into, or any other order which justice requires to protect the party or witness from annoyance, embarrassment or oppression.'
In this particular case, the attorney for the city of Neenah, in his motion for an order directing the defendant to show cause why the subpoenas should not be quashed, relied entirely upon the contention that, 'a forfeiture proceeding is not to be treated as a civil action for the purposes of Section 326.12, Wisconsin Statutes.' As discussed above, we cannot agree with that analysis, and must accordingly conclude that the motion papers failed to show 'good cause' why the depositions should not be taken. The trial judge relied almost completely upon the proposition that adverse examination of the police officers was not to be permitted in a criminal or quasi-criminal case. To the extent that a municipal forfeiture action is thus labeled and, hence, beyond the purview of sec. 326.12, Stats., we must disagree with the trial judge.
However, the trial judge pointed out that the privileges granted by sec. 326.12, stats., were subject to abuse and that the unbridled use of the technique of adversely examining police officers could lead to the disruption of orderly law enforcement. The trial judge correctly stated that he was empowered to 'protect against abuse of...
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