City of Milwaukee v. Wroten
| Decision Date | 06 March 1991 |
| Docket Number | No. 89-1628,89-1628 |
| Citation | 160 Wis.2d 207,466 N.W.2d 861 |
| Parties | CITY OF MILWAUKEE, Plaintiff-Appellant, v. Eloise WROTEN, Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
Scott G. Thomas, Asst. City Atty., argued, Grant F. Langley, City Atty., on brief (in Court of Appeals), Milwaukee, for plaintiff-appellant.
Kathleen Walsh and Legal Aid Society of Milwaukee, Inc., Milwaukee, for defendant-respondent.
This is an appeal on bypass pursuant to sec. 808.05, Stats., from an order of the circuit court for Milwaukee county, Leah M. Lampone, Judge, which affirmed the order of the municipal court of the City of Milwaukee dismissing the complaint of the city charging the defendant, Eloise Wroten, with "resisting" a police officer, contrary to the provisions of Ordinance 2-138. We affirm.
The municipal court, James A. Gramling, Jr., municipal judge, dismissed because he found the ordinance to be overbroad and, hence, unconstitutional.
On appeal to the circuit court and to this court, the city contends that the municipal court, as a statutory court, has no authority to declare an ordinance unconstitutional and, in addition, contends that the ordinance is not overbroad and is constitutional.
We conclude that a municipal court created by the legislature pursuant to Article VII, sec. 2, of the Wisconsin constitution has the authority to determine the constitutionality of a municipal ordinance upon which an action for a civil forfeiture is based. We also conclude that Ordinance 2-138 of the City of Milwaukee is unconstitutionally overbroad.
The facts of this case are basically undisputed. On September 21, 1987, at approximately 7:15 p.m., City of Milwaukee police officers were conducting an investigation into a juvenile disturbance in an apartment building. During the course of the investigation, Wroten, a resident of the apartment building, entered the building and began to question the police officers about their presence. The police officers told Wroten what they were doing and then asked her to leave the hallway where they were conducting their investigation. At this point, it is alleged Wroten became "verbally abusive" and refused to leave the area.
After three to five minutes, Wroten again refused to leave the area after being directed to do so. Wroten was then "arrested" for violating the City of Milwaukee's resisting ordinance. The police officers described the violation on the front of the citation as follows: "[A]fter numerous warnings to the contrary [Wroten] verbally interfered in ongoing investigation." The back of the citation contained a longer explanation of the incident:
... Subj entered building and immediately began to question officers as to presence in the Building. When informed of presence and told to leave the area (Hallway) Subj continued to verbally badger officers and interfere with investigation.
After tolerating subject's behavior for 3-5 minutes, Subj was again told to leave the area, Subj refused, taken into custody.
On September 27, 1987, Wroten was formally charged with violating sec. 2-138 of the Milwaukee Code of Ordinances, which reads 2-138. Resisting Officer. Whoever in this city shall resist, or any way interfere with any police officer or member of the police department in the discharge of his duty, or shall hinder or prevent him from discharging his duty as such officer or member, or shall offer or endeavor so to do, and whoever shall in any manner assist any person in custody of any officer or member of the police department to escape or attempt to escape from such custody, or shall rescue or attempt to rescue any person in custody, shall forfeit a penalty of not less than ten dollars ($10) nor more than two hundred and fifty dollars ($250), or be imprisoned in the house of correction for not less than thirty (30) days nor more than six (6) months, or by both such fine and imprisonment. 1
I
Authority of a Municipal Court to Determine the
The city has argued at each stage of this litigation that the municipal court was without such authority. The city contends that a municipal court is a court of limited jurisdiction and, without an express grant of authority, it lacks the capacity to decide constitutional questions. The city points out that municipal courts are special courts with specifically enumerated authority.
The city, while recognizing that municipal courts are referred to in the Wisconsin constitution, Article VII, sec. 2, 2 contends their powers, even if created by legislative action, are limited in their jurisdiction to that specified by Article VII, sec. 14. 3
Further, the statutes, sec. 755.045, Stats., 4 distinguishes municipal courts from all other courts, because municipal courts, with exceptions for transfer to circuit court, have exclusive jurisdiction over actions to impose forfeitures for ordinance violations.
The city convincingly establishes that a municipal court is not a court of record, but acknowledges that its exclusive jurisdiction in respect to ordinance enforcement exceeds that of all other courts.
The city also asserts that a municipal court is different from other courts referred to in the Wisconsin constitution because there are specific limitations on the exercise of equitable jurisdiction. The city, pointing out that a judge of a municipal court need not be a lawyer, 5 argues that it is unreasonable to expect complicated constitutional questions to be decided by nonlawyer judges.
The city most convincingly establishes that the authority of a municipal court is not identical with that of a circuit court and, therefore, reaches the conclusion that, because the circuit court has plenary jurisdiction, including the power to declare an ordinance unconstitutional, the municipal court, being different in many respects, cannot have that same power or authority. We do not believe that conclusion logically follows from the premises established by the city.
The city does, however, demonstrate that the constitution, by Article VII, sec. 2, divides the judicial power into segments:
One supreme court
A court of appeals
A circuit court
Such trial courts of general uniform statewide jurisdiction as the legislature may create by law
A municipal court if authorized by the legislature
This segmentation becomes an important component of the city's argument when it cites the holding in Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761 (1972), that, in addition to the supreme court having the authority to declare legislation unconstitutional, "trial courts" also have that power; but the city argues that, under the classification of Article VII, sec. 2, the municipal court provision is stated separately and, therefore, Just did not include municipal courts within the ambit of "trial courts," whose power to determine constitutionality was ratified in that case.
The city asserts that Just is authority that municipal courts, because they are not trial courts, cannot make determinations of constitutionality.
We believe that the City of Milwaukee relies on trivial verbal differences in Just where no significant distinction was intended. Just uses interchangeably the terms, "lower court[s]" 56 Wis.2d at 24, 201 N.W.2d 761, "inferior courts" Id. at 24, 201 N.W.2d 761, and "trial courts" Id. at 25, 201 N.W.2d 761. It is apparent that there was no intention to limit the holding of Just--that courts other than the supreme court could adjudicate constitutionality--to "trial courts," as referred to in the constitution. Rather, the teaching of Just is that all courts in which constitutional questions are raised should decide them. The only meaningful distinction between court levels is the distinction between "appellate courts" 6 Id. at 25-26, 201 N.W.2d 761 and all other courts. The holding of Just is simply that determination of constitutionality reasonably cannot abide initial adjudication by the appellate court at a time long subsequent to the onerous imposition of the strictures of an unconstitutional legislative act. The teaching of Just is that, whenever a constitutional question is raised, it should be decided. Of course, questions of constitutionality, like other questions of law, cannot finally be laid to rest until decided by final appellate adjudication--since 1978, either by the court of appeals by published opinion or by determination by the Wisconsin Supreme Court. 7 Just supports not the city's position, but Wroten's that optimum utilization of our court facilities requires that all courts have the authority to decide constitutionality.
The city has yet another argument that must be addressed--that a municipal court is not a court at all but is a mere administrative agency, which this court has held does not have the authority to decide constitutionality because administrative agencies are a part of the legislative branch of government that created them and, by implication, are not clothed with the power to declare unconstitutional the laws of their creator. See Kmiec v. Town of Spider Lake, 60 Wis.2d 640, 646, 211 N.W.2d 471 (1973).
The city asserts that the same reasoning and conclusion is applicable to a municipal court, for under the constitution municipal courts can only exist if "authorized" by the legislature. Moreover, the legislature has limited their jurisdiction to "proceedings arising under ordinances of the municipality." Does it not then follow that such a tribunal, by reason of its legislative genesis, cannot question the constitutionality of its progenitor--the state and, indeed, the city which established the municipal court by appropriate municipal legislative action.
We conclude that the constitutional structure provides the answer, "no."
Article VII of the constitution is captioned as the Judiciary Article. Section 2 of that article provides that the judicial power of this state shall be vested in a unified ...
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