Demmith v. Wisconsin Judicial Conference
| Decision Date | 11 March 1992 |
| Docket Number | No. 91-0067-OA,91-0067-OA |
| Citation | 166 Wis.2d 649,480 N.W.2d 502 |
| Parties | Scotty J. DEMMITH, Petitioner, v. WISCONSIN JUDICIAL CONFERENCE, Respondent. |
| Court | Wisconsin Supreme Court |
For the petitioner there were briefs by Lynn Adelman and Adelman, Adelman & Murray, Milwaukee, and oral argument by Lynn Adelman.
For the respondent there was a brief by David J. Hanson, Raymond P. Taffora and Michael, Best & Friedrich, Madison, and oral argument by Mr. Taffora.
Amicus Curiae brief was filed by James A. Walrath and Shellow, Shellow & Glynn, S.C., Milwaukee, for American Civ. Liberties Union of Wisconsin Foundation and Wisconsin Ass'n of Crim. Defense Lawyers.
This is an original action brought pursuant to sec. (Rule) 809.70, Stats.1989-90, seeking a declaratory judgment that the Uniform Misdemeanor Bail Schedule adopted by the Wisconsin Judicial Conference on October 12, 1990, and adopted by supreme court order on October 31, 1990, 1 does not comply with sec. 969.065, Stats.1989-90. On September 27, 1991, the Judicial Conference adopted the current Uniform Misdemeanor Bail Schedule, effective by supreme court order on October 29, 1991. For purposes of this action the Bail Schedules adopted in 1990 and 1991 are the same, and our declaration of rights governing the Bail Schedule adopted in 1990 applies to the Bail Schedule adopted in 1991 as well.
We declare that the Uniform Misdemeanor Bail Schedule does not comply with the requirement of sec. 969.065 that the guidelines for cash bail for persons accused of misdemeanors relate primarily to individuals. Section 969.065, Stats.1989-90, provides in full as follows:
The judicial conference shall develop guidelines for cash bail for persons accused of misdemeanors which the Supreme Court shall adopt by rule. The guidelines shall relate primarily to individuals. The guidelines may be revised from time to time under this section.
We conclude that the Judicial Conference must be given an opportunity to comply with sec. 969.065. We direct the Clerk of the Supreme Court to forward a copy of this opinion to the Executive Committee of the Wisconsin Judicial Conference so that the Judicial Conference may consider, at its annual conference in October, 1992, developing guidelines for cash bail for persons accused of misdemeanors which shall relate primarily to individuals as required by sec. 969.065. If the Judicial Conference develops and submits a revised Bail Schedule on or before November 27, 1992, and the court adopts that revised Bail Schedule by rule on or before December 31, 1992, the revised Bail Schedule shall replace the Bail Schedule the Judicial Conference developed on September 27, 1991, and the court adopted on October 29, 1991, and shall be in full force and effect until further order of this court. Because law enforcement officers across the state use the Bail Schedule every day, we further declare that in the interests of the sound administration of justice the Uniform Misdemeanor Bail Schedule adopted by the court on October 29, 1991, shall remain in full force and effect until midnight December 31, 1992, and shall thereafter be null and void, unless this court otherwise orders.
After we state the facts, we examine whether the Bail Schedule complies with sec. 969.065. We then examine whether sec. 969.065 withstands constitutional challenge under the separation of powers doctrine as an undue burden or substantial interference with judicial powers or as an invalid delegation of judicial power to law enforcement officers. We conclude with a discussion of the appropriate remedy.
The facts are stipulated. On December 6, 1990, Scotty J. Demmith was arrested in front of his home for possession of marijuana and operation of a motor vehicle after revocation of his license--two misdemeanors. At the time of his arrest, Demmith carried valid identification establishing his Wisconsin residency, had no outstanding bench warrants, and cooperated fully with police. Acting pursuant to the Uniform Misdemeanor Bail Schedule, the police officers conditioned Demmith's release on his deposit of cash bail in the amount of $100 for possession of marijuana and $500 for operating a vehicle after revocation. Unable to post the required cash bail, Demmith was confined in the Milwaukee County Jail until his court appearance. 2 At Demmith's initial appearance on December 10, 1990, the court commissioner released Demmith from custody without requiring any cash bail.
In 1981, the legislature adopted sec. 969.065, Stats.1989-90, assigning to the Wisconsin Judicial Conference the task of developing guidelines for cash bail for persons accused of misdemeanors. The statute provides that the guidelines shall relate primarily to individuals and that the supreme court is to adopt the guidelines by rule. Section 969.065, Stats.1989-90, provides in full:
The judicial conference shall develop guidelines for cash bail for persons accused of misdemeanors which the Supreme Court shall adopt by rule. The guidelines shall relate primarily to individuals. The guidelines may be revised from time to time under this section.
The Wisconsin Judicial Conference consists of the justices of the Wisconsin Supreme Court, the judges of the Wisconsin Court of Appeals, the judges of the Wisconsin circuit courts, and the reserve judges of the State of Wisconsin. Wis.Sup.Ct. Rule 70.15(1) (1991). 3 This court created the Judicial Conference by rule in 1964 to improve the administration of justice in this state. 4
The parties agree that the Wisconsin Judicial Conference developed the Uniform Misdemeanor Bail Schedule for the purpose of complying with sec. 969.065, Stats.1989-90. On October 12, 1990, the Judicial Conference adopted the 11-page Uniform Misdemeanor Bail Schedule pursuant to which the law enforcement officer demanded $600 cash bail from Demmith. The Bail Schedule contains three columns on each page, with each line listing the regulatory or statutory section of a misdemeanor, a description of the offense, and the amount of cash bail. For instance, according to the Bail Schedule, bail for a person accused of dognapping, sec. 951.03, Stats.1989-90, is $250.00; bail for a person accused of shoplifting, sec. 943.50(4)(a), Stats.1989-90, is $200.00. The Bail Schedule also sets forth a cash bail for Class A, B, C, and other misdemeanors for which cash bail is not specifically listed in the Bail Schedule. The Bail Schedule states that bail in all cases shall be in accordance with the Bail Schedule.
Demmith argues that the Bail Schedule does not "relate primarily to individuals" as sec. 969.065 requires, because bail is determined under the Bail Schedule solely according to the offense allegedly committed.
We first examine whether the Bail Schedule complies with sec. 969.065, Stats.1989-90. Section 969.065 protects against unnecessary pretrial confinement by mandating the creation of a bail schedule that allows the release of an accused prior to an initial court appearance. Section 969.065, as adopted in 1981, expressly states that the Judicial Conference "shall develop guidelines" that "shall relate primarily to individuals." On its face, through the use of the word "shall," sec. 969.065 mandates the Judicial Conference to adopt guidelines and mandates that the guidelines relate primarily to individuals. 5
The history of ch. 969, Stats.1989-90, which relates to the administration of bail, demonstrates the legislature's increasing concern about individualizing bail and evidences the legislature's intent that before conviction a defendant may be released whenever feasible on his or her own recognizance; that bail be imposed when there is a reasonable basis to believe that bail is necessary to assure the accused's appearance in court to answer criminal prosecution; and that cash bail be only in the amount found necessary to assure the appearance of the defendant. 6
The legislature first provided for a bail schedule in 1969, as part of a major revision of the criminal procedure code (including ch. 969). Section 63, ch. 255, Laws of 1969. The 1969 law directed county judges to adopt a schedule of cash bail for all misdemeanors and required that the schedule contain "a list of offenses and the amount of cash bail applicable thereto." Section 969.06(1), Stats.1969. 7 The Judicial Council's prefatory note to ch. 255 appearing in the 1969 session laws states that the law attempts to provide for the release of as many defendants as possible without the need for cash bail or a surety bond. The Judicial Council's note following sec. 969.06 appearing at ch. 255, sec. 63, in the 1969 session laws further states that sec. 969.06 was "designed to insure the right of a defendant to a prompt determination of bail when he cannot be taken before a judge immediately upon his arrest."
In 1977, with court reorganization and the transformation of county judges into circuit judges, the legislature amended sec. 969.06, substituting the Judicial conference for the county judges as the entity to develop the bail schedule. Section 482, ch. 449, Laws of 1977. Section 969.06, as amended in 1977, provided:
The judicial conference shall develop a schedule of cash bail for all misdemeanors which the supreme court shall adopt by rule. The schedule shall contain a list of offenses and the amount of cash bail applicable thereto as the judicial conference determines to be appropriate. If the schedule does not list all misdemeanors, it shall contain a general clause providing for a designated amount of bail for all misdemeanors not specifically listed in the schedule. The schedule of bail may be revised from time to time under this section.
In 1981, the bail provisions of art. I, sec. 8 of the Wisconsin constitution were amended to focus the administration of bail on individual defendants. The new provisions provide in part: "All persons, before conviction, shall...
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