Dane County v. McGrew

• Decision Date: 19 July 2005
• Docket Number: No. 2003AP1794.,2003AP1794.
• Citation: 2005 WI 130,285 Wis.2d 519,699 N.W.2d 890
• Parties: DANE COUNTY, Plaintiff-Respondent, v. Kenneth R. McGREW, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

285 Wis.2d 519

2005 WI 130

699 N.W.2d 890

DANE COUNTY, Plaintiff-Respondent, v. Kenneth R. McGREW, Defendant-Appellant-Petitioner.

No. 2003AP1794.

Supreme Court of Wisconsin.

Oral Argument March 10, 2005.

Decided July 19, 2005.

For the defendant-appellant-petitioner there were briefs by Rex R. Anderegg and Anderegg & Mutschler, LLP, Milwaukee, and oral argument by Rex Anderegg.

For the plaintiff-respondent there was a brief and oral argument by Jason J. Hanson, assistant district attorney.

A brief was filed by the State of Wisconsin by Aaron R. O'Neil, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1. DAVID T. PROSSER, J.

This is a review of an unpublished decision of the court of appeals, Dane County v. McGrew, No. 2003AP1794, unpublished slip op. (Wis. Ct. App. Mar. 25, 2004), affirming a judgment and order of the circuit court for Dane County, C. William Foust, Judge. We granted review to determine whether Wis. Stat. § 345.43 (2001-02),¹ which mandates six-person juries in civil forfeiture trials, is unconstitutional in Dane County's prosecution of Kenneth McGrew (McGrew) for speeding pursuant to Dane County Ordinance § 69.01 and Wis. Stat. § 346.57(4)(h).

¶ 2. McGrew argues that under Article I, § 5 of the Wisconsin Constitution, which provides that the right of trial by jury "shall remain inviolate," he is entitled to a jury of 12, and therefore Wis. Stat. § 345.43 is unconstitutional.

¶ 3. Applying the test we set forth in Village Food & Liquor Mart v. H&S Petroleum, Inc., 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177, we conclude that the cause of action created by Wis. Stat. § 346.57(4)(h) did not exist at common law at the time of the adoption of the Wisconsin Constitution in 1848. We therefore conclude that McGrew has no constitutional right to a jury trial.²

I. BACKGROUND

¶ 4. On May 2, 2002, Dane County Deputy Sheriff Eric Novotny stopped McGrew for speeding. Novotny later testified that he "paced" McGrew's vehicle at a speed of approximately 80 miles per hour (MPH) in a 55 MPH zone. Novotny issued McGrew a citation in the amount of $175.80 with an assessment of six demerit "points"³ to McGrew's driver's license. The citation accused McGrew of exceeding the applicable speed limit by 24 MPH, in violation of Dane County ordinance 69.01,⁴ which adopts all the state traffic laws. The particular statute at issue is Wis. Stat. § 346.57(4)(h).⁵ McGrew decided to contest the citation in Dane County Circuit Court. McGrew fought the citation tooth and nail, fully exercising his rights. He filed an extensive discovery request, asking for 25 items including Deputy Novotny's training records, various information about Novotny's vehicle, and the traffic engineering study establishing the speed limit on the stretch of highway on which Novotny stopped him. He also filed several pretrial motions, and demanded a trial by jury under Wis. Stat. § 345.43⁶:

The Defendant hereby motions the court for a jury of 12, as opposed to six persons. Though the appeals court, in an unpublished opinion, has ruled against the right to a jury of 12 persons in forfeiture cases, this issue has not been settled by the Supreme Court. The Defendant raises this motion for the sake of preserving the record should it be necessary to appeal to the Supreme Court.

McGrew submitted $36 with his request, an amount sufficient to cover a six-person jury.⁷ ¶ 5. On June 18, 2002, the County moved the court for permission to amend the citation to reflect a charge of exceeding the speed limit by 25 MPH instead of 24 MPH. The court allowed this amendment over the defendant's objection. According to McGrew, the amendment "dramatically raised the stakes for fighting the ticket," because it subjected McGrew to a potential 15-day suspension of his operating license. See Wis. Stat. § 343.30(1n) ("A court shall suspend the operating privilege of a person for a period of 15 days upon the person's conviction by the court of exceeding the applicable speed limit . . . by 25 or more miles per hour.").

¶ 6. On September 27, 2002, the court held a motion hearing to consider McGrew's request. The following exchange occurred regarding McGrew's request for a 12-person jury:

THE COURT: . . . [Y]ou want a jury of 12 rather than six.

MR. MCGREW: The—I don't know that Your Honor could even rule in my favor on that matter, because the appeals court in our area does not believe you[] hav[e] a right to a 12-person jury. I raise that only for the sake of establishing it in case I [go to] the Supreme Court later on. I'm only [p]reserving that for the record, Your Honor.

THE COURT: Yeah. It seems to me that the—we went in misdemeanors from 12 to six and that was ruled unconstitutional. The Legislature then went from six to 12 but left the forfeiture juries at six. And I don't think there is the history of jury size importance in forfeiture cases that there is in criminal cases. And I think the Legislature can do as they wish.

And so, your record is preserved, but your motion is denied.

¶ 7. After a one-day trial held May 20, 2003, a six-person jury convicted McGrew of violating the ordinance. The court entered judgment on the verdict in the amount of a $200 forfeiture plus costs, and a 15-day suspension of McGrew's operating license. McGrew appealed on several grounds, and the court of appeals affirmed. Dane County v. McGrew, No. 2003AP1794, unpublished slip op. (Wis. Ct. App. Mar. 25, 2004). The court of appeals rejected all of McGrew's claims of error, but did not specifically address McGrew's claim that he was entitled to a 12-person jury, because "McGrew tacitly admits we have no power to address this topic, and he states he is raising the issue `[s]olely to preserve [it] for a possible petition for review to the Wisconsin Supreme Court.'" Id., ¶ 29. We granted McGrew's petition for review.

II. STANDARD OF REVIEW

¶ 8. McGrew argues that Wis. Stat. § 345.43 violates the constitutional guarantee that the right of trial by jury "shall remain inviolate" because it provides that "[t]he number of jurors shall be 6" in civil forfeiture actions. Any attack on the constitutionality of a statute presents a question of law subject to de novo review. Czapinski v. St. Francis Hosp., 2000 WI 80, ¶ 12, 236 Wis. 2d 316, 613 N.W.2d 120. The party challenging the statute bears the heavy burden of proving that the statute is unconstitutional beyond a reasonable doubt. State v. Laxton, 2002 WI 82, ¶ 8, 254 Wis. 2d 185, 647 N.W.2d 784. This court will presume that the statute is constitutional, id., indulge "every presumption to sustain the law if at all possible," State v. Cole, 2003 WI 112, ¶ 11, 264 Wis. 2d 520, 665 N.W.2d 328, and resolve any doubt in favor of the constitutionality of the statute. See Dane County DHS v. P.P., 2005 WI 32, ¶ 17, 279 Wis. 2d 169, 694 N.W.2d 344

. We are not concerned with "the wisdom of the legislative enactment," only with whether the statute clearly contravenes some constitutional provision. State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 413, 208 N.W.2d 780 (1973).

III. ANALYSIS

¶ 9. McGrew challenges the constitutionality of Wis. Stat. § 345.43(1), which provides that when a jury is demanded in traffic cases, "[t]he number of jurors shall be 6."

¶ 10. McGrew concedes that in light of Williams v. Florida, 399 U.S. 78 (1970), the United States Constitution does not afford him the right to a 12-person jury. The Supreme Court stated, "We hold that the 12-man panel is not a necessary ingredient of `trial by jury'. . . ." Id. at 86. Thus, we restrict our analysis to whether the Wisconsin Constitution guarantees such a right.

¶ 11. Two potential sections of the state constitution are implicated: Article I, § 5, which preserves the right of trial by jury, and Article I, § 7, which assures certain rights to criminal defendants. McGrew concedes that this is a civil action. See City of Waukesha v. Schessler, 239 Wis. 82, 85-86, 300 N.W. 498 (1941) ("By no process of reasoning . . . can any action except one prosecuted by the state be considered a criminal action. . . . [A] multitude of cases might be cited wherein it is directly held that actions under ordinances are civil actions to recover forfeitures."). At all relevant times, an ordinance violation for speeding has been so classified.⁸

¶ 12. Accordingly, McGrew's right (or lack thereof) to a 12-person jury trial will rise or fall based on Article I, § 5 of the Wisconsin Constitution,⁹ which preserves "inviolate" the right to trial by jury:

The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law. Provided, however, that the legislature may, from time to time, by statute provide that a valid verdict, in civil cases, may be based on the votes of a specified number of the jury, not less than five-sixths thereof.

Wis. Const. art. I, § 5 (emphasis added).

¶ 13. Historically, Article I, § 5 has been interpreted as preserving a right to trial by jury in civil cases. For instance, in Bennett v. State, 57 Wis. 69, 74 (1883), the court stated:

It is evident that sec. 5 . . . was intended to secure the right of trial by jury in civil and not in criminal actions. The words in the section, "and shall extend to all cases at law, without regard to the amount in controversy," clearly limit the provisions of that section to civil actions at law, and exclude the idea that it was intended to apply to criminal actions. The provision in said section that "a jury trial may be waived by the parties in all cases, in the manner prescribed by law," confirms this construction of the section.

A line of cases supports this construction.¹⁰

¶ 14. Nonetheless, there are also cases from this court that borrow concepts from Article I, § 5 and attempt to apply them to the jury trial right in...