City of Milwaukee v. Arrieh, 96-0482

• Decision Date: 20 May 1997
• Docket Number: No. 96-0482,96-0482
• Citation: 211 Wis.2d 764,565 N.W.2d 291
• Parties: CITY OF MILWAUKEE, Plaintiff-Appellant, State of Wisconsin, Intervenor, v. Brahim ARRIEH, Defendant-Respondent. d
• Court: Wisconsin Court of Appeals

Page 291

565 N.W.2d 291

211 Wis.2d 764

CITY OF MILWAUKEE, Plaintiff-Appellant State of Wisconsin, Intervenor, v. Brahim ARRIEH, Defendant-Respondent. ^d

No. 96-0482.

Court of Appeals of Wisconsin.

Submitted on Briefs April 8, 1997.

Opinion Released May 20, 1997.

Opinion Filed May 20, 1997.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Grant F. Langley, City Attorney, with John J. Carter, Special Counsel, of Greenfield.

On behalf of the intervenor, the cause was submitted on the briefs of James E. Doyle, Attorney General, and Donald V. Latorraca, Assistant Attorney General.

On behalf of the defendant-respondent, the cause was submitted on the brief of Jerome F. Buting of Buting & Williams, S.C., of Brookfield.

Before WEDEMEYER, P.J., and FINE and CURLEY, JJ.

FINE, Judge.

The City of Milwaukee appeals from an order entered by the trial court rescinding a previously entered order for closure and sale under the Drug House Abatement Law, §§ 823.113 et seq., STATS., of an apartment building owned by Brahim Arrieh. The trial court concluded that the closure and sale violated Arrieh's Eighth-Amendment right to be free from "excessive fines." The question presented by this appeal is whether the Excessive Fines Clause prevents the confiscation or destruction of property to abate or remediate a nuisance. We conclude that it does not. We reverse.

I.

Wisconsin's Drug Abatement Law declares to be a nuisance "[a]ny building or structure that is used to facilitate the delivery, distribution or manufacture ... of a controlled substance ... and any building or structure where those acts take place." Section 823.113(1), STATS. The law permits a city where the nuisance is located to "maintain an action in the circuit court to abate the nuisance and to perpetually enjoin every person guilty of creating or maintaining the nuisance, the owner, lessee or tenant of the building or structure where the nuisance exists and the owner of the land upon which the building or structure is located, from continuing, maintaining or permitting the nuisance." Section 823.113(2), STATS. If the circuit court finds that "the existence of the nuisance is established ..., an order of abatement shall be entered as part of the judgment in the case." Section 823.114(1), STATS. Under this provision, the order of abatement "shall do all of the following:"

(a) Direct the removal from the building or structure of all furniture, equipment and other personal property used in the nuisance.

(b) Order the sale of the personal property.

(c) Order the closure of the building or structure for any purpose.

(d) Order the closure of the building or structure until all building code violations are corrected and a new certificate of occupancy is issued if required by the city, town or village within which the property is located and the building or structure is released under s. 823.15 or sold under s. 823.115.

(e) Order the sale of the building or structure and the land upon which it is located or, if the requirements under s. 66.05(1m)(b) [66.05(1)(b) ] are met, order that the building or structure be razed, the land sold and the expense of the razing collected under s. 823.06.

Ibid. "The owner of any building or structure, or the owner of the land upon which the building or structure is located" that is subject to an abatement order under the Drug House Abatement Law is not without a remedy to save his or her investment and may "file an undertaking in a sum and with the sureties required by the court to the effect that he or she will immediately abate the alleged nuisance, if it exists, and prevent the same from being reestablished in the building or structure, and will pay all costs that may be awarded against him or her in the action." Section 823.15, STATS. This section further provides:

Upon receipt of the undertaking, the court may dismiss the action as to the building or structure and revoke any order previously made closing the building or structure; but that dismissal and revocation shall not release the property from any judgment, lien, penalty, or liability that the property is subject to by law. The court has discretion in accepting any undertaking, the sum, supervision, satisfaction, and all other conditions of the undertaking, but the period that the undertaking shall run may not be less than one year.

Ibid.

On November 27, 1990, the City of Milwaukee commenced an abatement action against Arrieh alleging that he owned an apartment building in which there was drug activity and that, although two formal notices to abate that activity were served on him, the building "has continued to be used to facilitate the delivery of a controlled substance," and that, therefore, the building was "a public nuisance pursuant to sec. 823.113, Stats." ¹

The trial court held a hearing on the City's complaint. Arrieh and a narcotics detective with the Milwaukee Police Department testified. At the conclusion of the hearing, the trial court found "that the building is one used to facilitate the delivery of controlled substances" and that, accordingly, the building was a nuisance under the Drug House Abatement Law. The trial court did not enter an immediate order of closure, but, rather, adjourned the hearing to take additional testimony concerning the factors enumerated in § 823.113(4), STATS. ² Following this second hearing, at which Arrieh, the police detective who testified at the first hearing, and a City of Milwaukee building inspector testified, the trial court found that there was substantial drug activity at the apartment building and that, therefore, the building was a nuisance subject to abatement. The trial court ordered the building closed to all except Arrieh "and his agents and workmen who are on the premises performing work as ordered by the building inspector." The trial court also directed Arrieh "to serve tenancy termination notices" on the building's tenants. The trial court did not, however, order the property sold, but, rather, gave Arrieh an opportunity to post an undertaking under § 823.15, STATS. Arrieh offered an undertaking of $2,000, which the trial court rejected. After finding that Arrieh knew that his building was being used for the sale of drugs and did not make good-faith efforts to rectify the situation, the trial court ordered that the building be sold. ³

Arrieh challenged the constitutionality of the Drug House Abatement Law, which the trial court rejected. In an unpublished opinion, City of Milwaukee v. Brahim Arrieh, No. 91-2628, unpublished slip op., 188 Wis.2d 602, 526 N.W.2d 279 (Wis.Ct.App. Sept. 27, 1994), we affirmed in part and reversed in part. The panel agreed unanimously that Arrieh's challenges to the Drug House Abatement Law on vagueness and due-process grounds were without merit, and remanded the case to the trial court to consider whether closure and sale of the apartment building violated the Eighth Amendment's prohibition against excessive fines. Ibid. ⁴ The trial court, a new judge presiding, concluded that closure and sale of the apartment building violated Arrieh's Eighth-Amendment rights. ⁵

II.

The Eighth Amendment prohibits the imposition by government of "excessive fines." See Browning-Ferris Indus., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 264, 109 S.Ct. 2909, 2914, 106 L.Ed.2d 219 (1989). ⁶ Although the United States Supreme Court has never held that the Excessive Fines Clause applies to the States through the Fourteenth Amendment, see id., 492 U.S. at 276 n. 22, 109 S.Ct. at 2920 n. 22 (declining to decide issue); Pueblo School Dist. No. 70 v. Toth, 924 P.2d 1094, 1099 (Colo.App.1996) ("The excessive fines clause of the Eighth Amendment has not been held specifically applicable to the states by virtue of the Fourteenth Amendment's due process clause."), we assume that it does. ⁷ See City of Milwaukee v. Kilgore, 193 Wis.2d 168, 190, 532 N.W.2d 690, 698 (1995) (assuming, without discussion, that the Eighth Amendment's prohibition against "excessive fines" applies to state-court proceedings). Moreover, imposition of "excessive fines" is prohibited by Article I, § 6 of the Wisconsin Constitution. ⁸

"Statutes are presumed to be constitutional. Every presumption must be indulged to sustain the constitutionality of a statute, and if doubt exists, it must be resolved in favor of constitutionality." Kilgore, 193 Wis.2d at 188, 532 N.W.2d at 697. (Internal citations omitted.) The Excessive Fines Clause of the Eighth Amendment applies only to "punishment" that is imposed by government " 'for some offense.' " Austin v. United States, 509 U.S. 602, 609-610, 113 S.Ct. 2801, 2805, 125 L.Ed.2d 488 (1993) (citation omitted); see also Alexander v. United States, 509 U.S. 544, 557, 113 S.Ct. 2766, 2774-2775, 125 L.Ed.2d 441 (1993). Accordingly, the Eighth Amendment is not implicated by a forfeiture unless that forfeiture is "punishment" for an "offense." Austin, 509 U.S. at 622, 113 S.Ct. at 2812. ⁹

Although the abatement of any nuisance adversely affects the owner of the property found to be subject to abatement, that fact has never been considered to be "punishment" and has never triggered an "excessive fines" analysis. See Bennis v. Michigan, 516 U.S. 442, ----, 116 S.Ct. 994, 1001, 134 L.Ed.2d 68, 78-79 (1996) (abatement of nuisance does not violate either Due Process Clause of Fourteenth Amendment or the Takings Clause of Fifth Amendment made applicable to the states by the Fourteenth Amendment even though abatement adversely affects innocent owner); J.W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 513, 41 S.Ct. 189, 191, 65 L.Ed. 376 (1921) (Excessive Fines Clause of the Eighth Amendment not discussed when innocent person's interest in property was forfeited even though the forfeiture was imposed by the United States) (forfeiture of innocent person's interest in property held not to violate due process: "It is the illegal use that is the...