City of Milwaukee v. Arrieh
| Citation | 526 N.W.2d 279,188 Wis.2d 602 |
| Decision Date | 27 September 1994 |
| Docket Number | No. 91-2628,91-2628 |
| Court | Court of Appeals of Wisconsin |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. CITY OF MILWAUKEE, Plaintiff-Respondent, v. Brahim ARRIEH, Defendant-Appellant. |
Before WEDEMEYER, P.J., and FINE and SCHUDSON, JJ.
SCHUDSON.
Brahim Arrieh appeals from the trial court judgment rejecting his constitutional challenges to the Wisconsin Drug House Abatement Law (WDHAL), and ordering the closure and sale of his apartment building, which the trial court declared a public nuisance under the WDHAL. In this case, therefore, we consider the constitutionality of the WDHAL.
The issues are many and complex and, to a substantial extent, their resolution depends on the interpretation and application of two very recent decisions of the United States Supreme Court, United States v. James Daniel Good Real Property, 510 U.S. 43, 114 S.Ct. 492 (1993), and Austin v. United States, 509 U.S. 602, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). 1 Because of the number and complexity of the issues, a brief summary should offer some helpful guidance to this decision.
First, of course, the factual background (Section I.) and the standard of review (Section II.) are provided. Next, the first section of the WDHAL, § 823.113, Stats., (Section III.), the procedural due process challenges based on claims of vagueness (Section III.A.), and denial of notice and hearing (Section III.B.) are considered.
This opinion then turns to the substantive due process challenges to this first section of the WDHAL (Section III.C.). Initially, this opinion determines whether the WDHAL can effect a "taking" of property (Section III.C.1). Next, this opinion considers the standard for reviewing the constitutionality of the legislature's authorization of the police power in the WDHAL, whether the WDHAL meets that standard and, additionally, whether the WDHAL constitutionally must include an "innocent owner" defense (Section III.C.2).
Finally, this opinion addresses challenges to the WDHAL that focus primarily on the second and third sections of the law, §§ 823.114 and 823.115, Stats., and their constitutionality under the Excessive Fines Clause of the Eighth Amendment (Section IV).
A majority of this court concludes that: (1) Arrieh was afforded the due process required by Good and, therefore, he lacks standing to challenge the WDHAL on facial procedural due process grounds; (2) the WDHAL is not unconstitutionally vague; and (3) Arrieh is entitled to have the trial court consider whether the closure and sale of his property under §§ 823.114 and 823.115, Stats., constitute an excessive fine under the Eighth Amendment. We remand the case for that determination.
Arrieh owned and lived in an apartment building in Milwaukee. On July 16, 1990, the City of Milwaukee served him with written notice that the building was being used to facilitate the delivery or manufacture of a controlled substance, and ordered him to abate the nuisance. 2 On July 26, 1990, the City served a second notice informing Arrieh of further drug activity on the premises. 3 Both notices advised Arrieh of provisions of the WDHAL and of the potential for closure and sale of his building.
On November 27, 1990, the City filed a complaint against Arrieh, alleging that his building was continuing to be used to facilitate the delivery or manufacture of drugs, and that it was a public nuisance under the WDHAL. The complaint sought an injunction requiring that the building be vacated and sold. Arrieh filed an answer denying the allegations, and a bench trial was held in August, 1991. The trial court found the building to be a public nuisance as defined by § 823.113, Stats., and, on September 5, 1991, entered a written order enjoining Arrieh from "creating, maintaining, permitting or continuing" the nuisance, and ordering him to abate the nuisance and to close the building. 4 The trial court continued the case for consideration of the City's motion for sale of the building, took additional testimony on that issue, and, on September 20, 1991, entered a written order and judgment in favor of the City incorporating the previous injunctive relief and orders for abatement and closure, and further ordering sale of the property. The Order for Judgment and Judgment stated, in part:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a public nuisance continues to exist at 620 North 26th Street, Milwaukee, Wisconsin, unabated and in contravention of the Court's prior order of abatement, and the defendant has had both constructive and actual knowledge of drug activity within the building as early as July 1990, and that the defendant has been unable to abate the public nuisance, and that the defendant is unlikely to be able to abate the public nuisance in the future. It is further ordered, adjudged and decreed that said public nuisance is likely and probable to continue.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant, Brahim Arrieh, is hereby permanently enjoined from creating, maintaining, permitting or continuing the public nuisance at 620 North 26th Street, Milwaukee, Wisconsin.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, based upon the record before the Court, the building commonly known as 620 North 26th Street, Milwaukee, Wisconsin is forthwith ordered closed to all members of the general public except as to: (a) the owner, Brahim Arrieh, occupying Apartment 2, and his expressed guests or invitees; and (b) the caretaker, Earl Beranek, and his expressed guests or invitees; and (c) the lawful current tenants of Apartments 1, 3, 7 and 11, and their expressed guests or invitees; and (d) any agents, servants or employees of the owner while actually under the supervision of the owner and while engaged in the repair, remodeling or maintenance of said building.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that effective 12:00 midnight September 15, 1991, the building shall be IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff, City of Milwaukee, shall provide relocation assistance to the lawful current tenants of Apartments 1, 3, 7 and 11 of the building commonly known as 620 North 26th Street, Milwaukee, Wisconsin. It is further ordered, adjudged and decreed that said assistance shall not include the cost of relocation.
closed to everyone including current tenants but excluding (a) the owner, Brahim Arrieh, and his expressed guests or invitees; and (b) any agents, servants or employees upon the premises actually under the supervision of the owner and while engaged in the actual repair, remodeling or maintenance of said building; and (c) any agents, servants or employees of any unit of government lawfully upon the premises for the purposes of inspecting or determining compliance with any municipal or county ordinance or state statute; and (d) any person lawfully upon the premises under the authority of the Sheriff of Milwaukee County pursuant to inspection by prospective buyers for the sale of said building by the Sheriff.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff, City of Milwaukee, shall forthwith post in and upon said premises notices that said building is closed to the general public except as herein provided and that anyone who enters or who remains upon said premises in violation of sec. 823.114(2), Wis. Stats., shall be subject to punishment for contempt of this Court's order.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant, Brahim Arrieh, provide a statement in writing within five (5) days to the plaintiff, City of Milwaukee, outlining the steps the defendant will take to insure the closure of the building commonly known as 620 North 26th Street, Milwaukee, Wisconsin.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the building commonly known as 620 North 26th Street, Milwaukee, Wisconsin, and the lands upon which it is situated, shall forthwith be sold at the highest available price at public sale by the Sheriff of Milwaukee County pursuant to sec. 823.115, Wis. Stats., and that notice of said sale shall be made pursuant to sec. 815.31, Wis. Stats. The Sheriff shall further do such things and provide such notice as is set forth in sec. 846.16, Wis. Stats. ("Notice and Report of Sale"). It is further ordered, adjudged and decreed that said sale shall be subject to confirmation by this Court.
On October 1, 1991, the City filed a motion for order of contempt for Arrieh's alleged failure to comply with the trial court's orders to abate the nuisance and close the building. See § 823.114(2), Stats. On October 8, 1991, Arrieh retained new counsel who moved to dismiss the City's contempt motion and raised, for the first time, a challenge to the constitutionality of the WDHAL on its face. The trial court adjourned the City's motion and, on December 10, 1991, entered a written order relieving Arrieh from operation of the judgment "solely for the expressed purpose of allowing the defendant an opportunity to be heard only on the question of whether or not sec. 823.113, Wis. Stats., et seq, is facially unconstitutional and therefore void." 5 In the meantime, Arrieh appealed from the trial court's September 20, 1991, judgment. On April 1, 1992, this court ordered a stay of the appellate proceedings in order to allow the trial court to hear and determine Arrieh's constitutional challenge. On June 15, 1992, the trial court issued its memorandum decision rejecting Arrieh's constitutional arguments.
The constitutionality of a statute is a question of law, which we review de novo. State v. Borrell, 167 Wis.2d 749, 762, 482 N.W.2d 883, 887 (1992). Statutes are presumed to be constitutional. Id. Every presumption must be indulged to sustain the constitutionality of statutes whenever possible,...
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