City of West Allis v. State ex rel. Tochalauski, 436

• Decision Date: 04 March 1975
• Docket Number: No. 436,436
• Citation: 226 N.W.2d 424,67 Wis.2d 26
• Court: Wisconsin Supreme Court
• Parties: CITY OF WEST ALLIS, Plaintiff-in-Error, v. STATE ex rel. Anthony TOCHALAUSKI, Defendant-in-Error, Lawrence Jozwiak, Supt. Milwaukee County House of Correction, Defendant.

Page 424

226 N.W.2d 424

67 Wis.2d 26

CITY OF WEST ALLIS, Plaintiff-in-Error, v. STATE ex rel. Anthony TOCHALAUSKI, Defendant-in-Error Lawrence Jozwiak, Supt. Milwaukee County House of Correction, Defendant.

No. 436.

Supreme Court of Wisconsin.

March 4, 1975.

William T. Schmid, West Allis (H. Victor Buerosse, Asst. City Atty., West Allis, of counsel), for plaintiff-in-error.

Kent A. Martin, of Corrections Legal Services Program, Milwaukee, for defendant-in-error.

CONNOR T. HANSEN, Justice.

The essential facts are not in dispute. June 28, 1973, Tochalauski pled guilty to the charges of defrauding a restaurant keeper and disorderly conduct, in violation of the ordinances of the City of West Allis. Forfeitures were imposed in the amount of $65 and $60 on the respective charges. The amounts were made due thirty days thereafter, July 28, 1973. On July 5, 1973, a commitment order was issued by the municipal court, which was to be stayed unless payment was not received on the forfeitures prior to July 28, 1973.

The defendant failed to make any payment on the forfeiture prior to the due date. On August 2, 1973, he was arrested pursuant to the commitment order and was incarcerated in the Milwaukee County House of Correction.

On August 3, 1973, the defendant petitioned the circuit court for a writ of habeas corpus alleging that he did not have a job and that he was without funds to pay the forfeiture, and that his incarceration was illegal. The City of West Allis appeared and contested, inter alia, the sufficiency of the allegations of the petition, the jurisdiction of the circuit court to grant the writ, and the merits of the petition. The trial court was not persuaded by any of the arguments advanced by the City, and this appeal is the result.

The decision of the trial court to grant the writ was predicated upon its determination that prior to determining the amount of the forfeiture and the length of time to be given the defendant to pay it, a hearing should be held as to whether or not the defendant was indigent.

We deem the dispositive issue of this appeal to be whether it was error for the trial court to make such a determination.

Since municipal courts are not courts of record, ¹ we do not have a transcript of the proceedings at the time the guilty plea of the defendant was accepted by the municipal court. However, it is undisputed that the defendant was granted thirty days in which to pay the forfeiture imposed.

The municipal court for West Allis derives its authority to impose the judgments in this case from sec. 66.12, Stats., which provides in relevant part:

'66.12 Actions for violation of city or village regulations (1) . . .

'. . .

'(c) In case of conviction the court shall enter judgment against the defendant for the costs of prosecution, and for the penalty or forfeiture, if any, and that he be imprisoned for such time, not exceeding 90 days, unless otherwise provided by the ordinance, resolution or bylaw, as the court deems fit unless the judgment is sooner paid. Such judgment or the imposition of any penalty or costs may be suspended or deferred for not more than 30 days in the discretion of the court. . . .' (Emphasis added.)

In State ex rel. Pedersen v. Blessinger (1972), 56 Wis.2d 286, 201 N.W.2d 778, this court considered sec. 973.07, Stats., as it relates to the equal protection clause of both the state and federal constitutions, ² and in doing so considered the then recent decision of Tate v. Short (1971), 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130. Section 973.07 provides for imprisonment of a defendant in the discretion of the trial court, for failure to pay the fine and costs adjudged. Pedersen found the statute to be a constitutional enactment. It was concluded, however, that the use of a term of imprisonment as a means of collection of a fine or costs from an indigent defendant would be an unconstitutional application of the statute. The case emphasized the fact that the question of a person's indigency was a question of fact. This court concluded that it was necessary to hold a hearing on the indigency of a defendant in order to avoid an unconstitutional application of the statute. State ex rel. Pedersen v. Blessinger, supra, 56 Wis.2d pages 295, 298, 201 N.W.2d 778. In the present case the defendant does not assert that sec. 66.12(1)(c), Stats., is unconstitutional. Indeed, it is recognized by the defendant that the statute vests in the municipal court the discretion to order confinement and withholds any power to order imprisonment in lieu of the forfeiture as distinguished from the power to order imprisonment as a means of collection. See: State ex rel. Keefe v. Schmiege (1947), 251 Wis. 79, 28 N.W.2d 345. (The legislature cannot grant municipalities power to impose imprisonment for violation of ordinances other than as a means of enforcing forfeitures assessed.) Moreover, sec. 66.12(1)(c), also vests in the municipal court the discretion to stay the imposition of the period of confinement, which permits the court flexibility in setting the terms of payment. It was these three factors, found to exist in State ex rel. Pedersen v. Blessinger, supra, with regard to sec. 973.07, that led this court to conclude that sec. 973.07 was not facially invalid under the mandate of Tate v. Short, supra. In our opinion the rationale of the Pedersen Case is applicable to proceedings arising under sec. 66.12(1)(c).

The circuit court, in granting the writ of habeas corpus in this case, did not make a finding that the defendant is indigent. Rather, it was the opinion of the circuit court that regardless of whether the issue was raised by the defendant, the municipal court was required to make a determination of whether the defendant was indigent before it could legally order confinement for nonpayment of the forfeiture, even though payment thereof was initially stayed for the maximum period provided by statute.

We conclude the trial court misconceived the holding of this court in the Pederson Case. There, this court observed that much time could be saved if the trial courts would follow the practice of ascertaining the defendant's ability to pay a fine at the time of sentencing. However, that procedure was not made mandatory on the trial courts, as this court held:

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