City of Milwaukee v. Kilgore, 92-0949

CourtCourt of Appeals of Wisconsin
Citation517 N.W.2d 689,185 Wis.2d 499
Docket NumberNo. 92-0949,92-0949
PartiesCITY OF MILWAUKEE, Plaintiff-Respondent-(In T.Ct-Appellant, v. Chet N. KILGORE, Defendant-Appellant-(In T.Ct-Respondent, Matthew J. TREWHELLA, Scott B. Patterson, Ralph N. Ovadal, Daoud Faraj, Robert C. Braun, Wayne E. Rohde and All Others Similarly Situated, Plaintiffs-Respondents, d v. Ronald R. FIEDLER, Secretary, Department of Transportation of State of Wisconsin, Honorable William J. Panagis, Honorable Stanley A. Miller and Honorable James A. Gramling, Jr., Judges of Municipal Court of City of Milwaukee and City of Milwaukee, Defendants-Appellants.
Decision Date17 May 1994

Amicus Curiae brief was filed by Claire Silverman of League of WI Municipalities of Madison, WI.



Two related issues are presented in this appeal: (1) whether municipal court judges have statutory authority to order the suspension of drivers' licenses for failure to pay forfeitures for non-traffic related offenses; and (2) if they do, whether that statutory authority is constitutional. The trial court concluded that the statutes do not provide such authority and that, even if they do, the statutes are unconstitutional. We conclude, however, that under §§ 800.09 and 800.095, STATS., 1 municipal court judges do have such authority and, further, that the statutory authority is constitutional. Therefore, we reverse.


The relevant facts in these appeals are undisputed. On February 23, 1990, Chet A. Kilgore was found guilty of disorderly conduct, in violation of § 106-1 of the Milwaukee Code of Ordinances. 2 A City of Milwaukee municipal judge ordered him to pay a forfeiture of $109 and further ordered that for nonpayment by April 24, 1990, his driver's license would be suspended for five years. In a trial de novo in state circuit court Kilgore contended:

1. Such suspension violates the prohibition in Sec. 343.30(5) which provides in part:

"No court may suspend or revoke an operating privilege except as authorized by this chapter or chapters 48, 345 or 351."

2. Coercing payment of forfeitures by suspension in nontraffic cases is not a lawful use of the police power, and violates the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Section 1, of the Wisconsin Constitution.

3. There being no nexus between the alleged offense and the suspension, nor any proportion between the gravity of the offense and the effect of the suspension, the procedure violates due process, and constitutes cruel and unusual punishment and an excessive penalty. Thus it violates the Fifth, Fourteenth and Eighth Amendment[s] to the United States Constitution, and Article I, Section 6, of the Wisconsin Constitution.

4. Insofar as Sections 800.09 and 800.095 attempt to confer power of suspension for nonpayment of forfeitures upon Municipal Courts, they constitute an unlawful delegation of power, contravening the provisions of Article VII, Section 14, of the Wisconsin Constitution, which authorizes the creation of such courts, and limits their jurisdiction to actions and proceedings "arising under ordinances of the municipalities in which established."

On October 23, 1989, Matthew J. Trewhella was found guilty of disorderly conduct. A municipal judge ordered him to pay $109 and further ordered that for nonpayment by December 21, 1989, his driver's license would be suspended for five years. 3 Trewhella, together with respondents Scott G. Patterson, Ralph N. Ovadal, Daoud Faraj, Robert C. Braun, Wayne E. Rohde, 4 and "all others similarly situated" commenced a class action lawsuit against Ronald R. Fiedler, Secretary of the Wisconsin Department of Transportation, and against the City of Milwaukee and three of its municipal judges. Their actions sought declaratory and injunctive relief to prohibit suspension of drivers' licenses for nonpayment of forfeitures arising from non-traffic related offenses.

The respondents all received orders of suspension from the Wisconsin Department of Transportation-Division of Motor Vehicles stating that their drivers' licenses had been suspended for five years for failure to pay the forfeitures for non-traffic charges. The orders of suspension stated that the period of suspension "can be reduced by payment of the forfeiture." According to the record, respondents did not pay the forfeitures and did not seek to avoid suspension of their operating privileges for good cause or because of indigency. See § 800.095(4)(a), STATS.

In their class action, the respondents claimed that municipal courts are precluded from suspending operating licenses for nonpayment of forfeitures for violations of non-traffic city ordinances under § 343.30(5), STATS. They also claimed that the orders were unconstitutional as: (1) improper debt collection measures and improper exercises of police power in violation of due process under the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Section I, of the Wisconsin Constitution; (2) unreasonable exercises of police power, because "there is neither any nexus nor any proportion between the offenses charged, the harm to the public, the maximum amount of the forfeitures authorized by the ordinances, and the duration and severity of the suspensions," in violation of due process under the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Section I of the Wisconsin Constitution; (3) excessive penalties in violation of the Eighth and Fourteenth Amendments to the United States Constitution, and Article I, Section VI of the Wisconsin Constitution; and (4) unlawful delegations of power to municipal courts in violation of Article 7, § 14 of the Wisconsin Constitution. 5

On June 6, 1991, the trial court ordered consolidation of the Kilgore and Trewhella cases. All the respondents moved for summary judgment. The City, on behalf of the Milwaukee municipal judges, and the Attorney General, on behalf of the Department of Transportation, also moved for summary judgment.

The trial court granted summary judgment for the respondents, declaring: (1) § 343.30(5), STATS., precludes municipal court authority to suspend drivers' licenses as otherwise provided under §§ 800.09 and 800.095, STATS.; (2) § 755.045, STATS., defines municipal court jurisdiction and provides no authority to suspend drivers' licenses; and (3) the legislature, by "enacting § 800.09(1)(c) and § 800.095 and amending § 800.09(1)(a) Wis.Stats., unlawfully used its police power for the primary purpose of raising revenue and not to promote the public welfare." Thus, the trial court concluded:

IT IS ORDERED that §§ 800.09(1)(a) & (c) Wis.Stats. and § 800.095 Wis.Stats., as they confer municipal judges the authority to suspend operating privileges for the failure to pay non-traffic forfeitures, is declared unconstitutional as an abuse of police power, a violation of the municipal courts jurisdiction, and a violation of due process.

The trial court ordered reinstatement of the driver's license of each named party, ordered the Secretary of the Department of Transportation to reinstate the drivers' licenses of all similarly situated persons, and enjoined the Secretary and the Milwaukee municipal judges from suspending drivers' licenses for nonpayment of forfeitures imposed for non-traffic related offenses. The parties stipulated to a partial stay of the judgment pending appeal, stating that "it would cost approximately $40,000 for the State to effect the reinstatement (none of which is recoverable) and an additional $40,000 to undo the reinstatement should the appeal be successful [which] would not be recoverable either." The trial court ordered the stay.


The statutes essential to our determination, in relevant part, state:

800.09 Judgment; failure to appear; plea of guilty. (1) JUDGMENT. If a municipal court finds a defendant guilty it may render judgment by ordering payment of a forfeiture. If the judgment is not paid, the court may proceed under par. (a), (b) or (c) or any combination thereof, as follows:

(a) The court may defer payment of any judgment or provide for instalment payments. At the time the judgment is rendered, the court shall inform the defendant, orally and in writing, of the date by which payment of the forfeiture must be made, and of the possible consequences of failure to make the payment in timely fashion, including imprisonment, as provided in s. 800.095, or suspension of the defendant's motor vehicle operating privilege, as provided in par. (c), if applicable.

.... (c) The court may suspend the defendant's operating privilege, as defined in s. 340.01(40), until the judgment and any restitution order under par. (a) is paid, if the defendant has not paid the judgment and restitution within 60 days after the date on which payment is ordered under par. (a) and has not notified the court that he or she is unable to pay the judgment, as provided under s. 800.095(4)(a), except that the suspension period may not exceed 5 years. The court shall take possession of the suspended license and shall forward the license, along with a notice of the suspension clearly stating that the suspension is for failure to pay a forfeiture ordered by the court, to the department of transportation.

800.095 Nonpayment of judgment or noncompliance with work order; further proceedings. (1) NONPAYMENT OR NONCOMPLIANCE. If the defendant does not make payments in accordance with the order of the court under s. 800.09(1)(a), the court shall issue a warrant to arrest the defendant and bring him or her before the court or a summons ordering the defendant to appear in court, or both. The defendant may be incarcerated prior to the court appearance.


(4) HEARING; COURT ORDER. (a) If the defendant appears before the court...

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