State ex rel. Cullen v. Ceci

• Decision Date: 09 January 1970
• Docket Number: No. 5,5
• Citation: 45 Wis.2d 432,173 N.W.2d 175
• Parties: STATE ex rel. Michael Dennis CULLEN, Appellant, v. Hon. Louis J. CECI, County Judge, Respondent.
• Court: Wisconsin Supreme Court

Page 175

173 N.W.2d 175

45 Wis.2d 432

STATE ex rel. Michael Dennis CULLEN, Appellant, v. Hon. Louis J. CECI, County Judge, Respondent.

No. 5.

Supreme Court of Wisconsin.

Jan. 9, 1970.

Rehearing Denied March 3, 1970.

This is an appeal by Michael Dennis Cullen from the circuit court's order quashing the alternative writ to prohibit further proceedings in the county court. Although the facts are but sketchily set forth by both appellant and the state, it appears that on the 24th day of September, 1968, certain persons gained entrance to the selective service headquarters in Milwaukee, Wisconsin, and took therefrom a large quantity of selective service records and burned them in a nearty city park. It is alleged that in so doing the principals in this incident were guilty of burglary, theft, and arson. Michael Cullen is charged in the complaint with those violations: Sec. 943.10(1)(a), Stats., burglary; sec. 943.20(1)(a), theft from a building; sec. 943.20(3)(d)(2), theft from the person; and sec. 943.03, arson. He is charged as a principal for each of these crimes pursuant to sec. 939.05.

Cullen was arrested, without a warrant, when he was found in the park as a part of a group standing arm-in-arm around the burning records. No specific objection has been made to the propriety of the arrest. Rather, the attack is upon the complaint which was prepared and filed subsequent to the arrest of Cullen. It is asked that further court proceedings be prohibited and the petitioner be released.

It is specifically alleged that the county court is without jurisdiction because the complaint fails to recite the essential facts constituting the offenses charged, and especially the facts of Michael Cullen's connection with the acts constituting the crimes. Appellant, moreover, recites that, for the same acts for which the state seeks to hold him criminally accountable, he has been indicted by a grand jury of the United States District Court at Milwaukee for the violation of certain provisions of the selective service act. ¹ He claims that the action of Congress in passing the selective service act and providing for penalties for violations has pre-empted the state jurisdiction when the Wisconsin charge is for theft or arson of selective service records or the burglary of a selective service office. In addition, appellant's counsel contends that a prosecution on the same set of facts by the state as well as the federal government is now prohibited by recent United States Supreme Court decisions in respect to the 'double jeopardy' clause of the United States Constitution. The trial judge, after careful consideration of appellant's position, denied the application for the writ.

Shellow, Shellow & Coffey, Robert H. Friebert, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., William A. Platz, and Mary V. Bowman, Asst. Attys. Gen., Madison, Robert P. Russell, Corp. Counsel, and Gerard S. Paradowski, Asst. Corp. Counsel, Milwaukee, for respondent.

HEFFERNAN, Justice.

After perfection of the appeal in this case, but prior to the time of argument, this court decided on May 6, 1969, State ex rel. Dore v. Stoltz (1969), 42 Wis.2d 534, 167 N.W.2d 214. This case held that:

'A writ of prohibition will not be issued when there is an adequate remedy by appeal or otherwise. See Drugsvold v. Small Claims Court (1961), 13 Wis.2d 228, 231, 108 N.W.2d 648. This court has long approved the use of habeas corpus to challenge the validity of a complaint and the validity of a bindover, and we now declare that this is the sole remedy for this type of situation.' (p. 538, 167 N.W.2d p. 216)

On the basis of this language of Dore, the state moved for a summary affirmance of the trial court's order denying the writ of prohibition.

The motion of the state was denied without prejudice and the parties to the appeal were directed to further brief the matter and to argue the applicability of Dore at the same time the appeal from the order denying the writ of prohibition was to be heard. The parties have done so.

The rule of Dore is perfectly clear. It holds that a writ of prohibition will not issue when there is another adequate remedy for testing the sufficiency of a complaint and the validity of a bindover. This is, of course, not new law. It is an almost 'boiler plate' capsulation of the traditional stand of this court. In the post-Dore case of State ex rel. Jefferson v. Roraff (October 3, 1969), 44 Wis.2d 250, 170 N.W.2d 691, the discussion of Dore was avoided, since this case was then pending, but Jefferson was based on exactly the same rationale as Dore, i.e., that prohibition is an extraordinary writ that ousts a trial court of jurisdiction, and therefore it should be used only when it becomes necessary to exercise the superintending powers of this court, as distinguished from its appellate function. We pointed out that such an exigency exists only if there is no other adequate remedy available and this court's failure to act will result in extraordinary hardship. See, also, In re Petition of Pierce-Arrow Motor Car Co. (1910), 143 Wis. 282, 127 N.W. 998; State ex rel. Fieldhack v. Gregorski (1956), 272 Wis. 570, 76 N.W.2d 382; State ex rel. Joyce v. Farr (1940), 236 Wis. 323, 295 N.W. 21; State ex rel. Fourth Nat. Bank v. Johnson (1899), 103 Wis. 591, 79 N.W. 1081, 51 L.R.A. 33; State ex rel. Beaudry v. Panosian (1967), 35 Wis.2d 418, 151 N.W.2d 48; State ex rel. Kiekhaefer v Anderson (1958), 4 Wis.2d 485, 90 N.W.2d 790; State ex rel. Ampco Metal Inc. v. O'Neill (1956), 273 Wis. 530, 78 N.W.2d 921, 62 A.L.R.2d 501; State ex rel. Gaynon v. Krueger (1966), 31 Wis.2d 609, 143 N.W.2d 437; State ex rel. La Follette v. Circuit Court (1967), 37 Wis.2d 329, 155 N.W.2d 141; State ex rel. Schulter v. Roraff (1968), 39 Wis.2d 342, 159 N.W.2d 25; see, also, James R. Cole, Extraordinary Writs and Their Use by the Wisconsin Supreme Court to Supervise Inferior Courts, University of Wisconsin Student Bar Journal, Vol. 3, Spring, 1969, p. 155.

Dore merely spelled out what has been apparent from past cases that alleged jurisdictional errors that challenge the sufficiency of a complaint or of the evidence adduced at a preliminary examination are reachable by the writ of habeas corpus and, in accordance with past precedent, prohibition is not then available. Dore condified the clear intendment of past cases, i.e., that a defendant who contends that a complaint is legally insufficient, or the evidence adduced at a preliminary is inadequate, has the remedy of objecting to the jurisdiction of the court by petitioning for habeas corpus and by appealing to the court where such appeal lies. When such remedy exists, there is no occasion to invoke the writ of prohibition, and a court will not grant such writ.

Appellant herein does not argue that habeas corpus is not available to him or that it would not adequately serve his purpose of exploring the sufficiency of the complaint or challenging the state's jurisdiction by way of federal preemption. Rather, he seeks to distinguish the rule of Dore by limiting it solely to post-bindover situations or, failing that, to have this court reconsider Dore and overrule it. We decline to do either. Dore was aimed at a patent abuse of the writ of prohibition which has resulted in a burgeoning of appeals to this court, as well as the disruption of proceedings in trial courts. The purpose of Dore was to make clear that prohibition would not be available here or in any other court when an adequate remedy, by habeas corpus or otherwise, was available. While Dore concerned a post-bindover challenge, its rationale is not limited to that situation. The vice that it is aimed at is equally pernicious where the petition for prohibition is improperly brought before bindover.

Accordingly, the rule of Dore is not to be limited in the manner that appellant contends. Prohibition will not lie whenever habeas corpus or other adequate remedy is available. ²

While the conclusion reached above disposes of this appeal, it does not dispose of the issues raised by the appellant which now become pertinent to any further remedies that he may seek. We therefore, since these issues have been exhaustively briefed and argued, feel obliged to discuss them.

We are satisfied that the complaint is sufficient to confer jurisdiction upon the magistrate to hold a preliminary examiantion. ³

The complaint at this point need not contain all the allegations of fact which if proved would be necessary to convict. The test to be applied at this stage is the same as that which is required for the issuance of a warrant:

'* * * enough information (shall) be presented to the Commissioner to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process.' Jaben v. United States (1965), 381 U.S. 214, 224, 85 S.Ct. 1365, 1371, 14 L.Ed.2d 345.

We do not agree, however, with the contention of the state that a complaint issued subsequent to a valid arrest need not state probable cause. While its purpose is no longer to authorize the seizure of the person of the defendant, it is the jurisdictional requirement for holding a defendant for a preliminary examination or other proceedings. The face of the complaint and any affidavits annexed thereto must recite probable cause for defendant's detention. Pillsbury v. State (1966), 31 Wis.2d 87, 142 N.W.2d 187, upon which the state relies, goes no further than the common sense holding that there need not be the issuance of another arrest warrant when a person is already being held in custody under another charge.

Pillsbury makes is quite clear that the jurisdictional requisite for a preliminary hearing is the complaint not the warrant. Of course, if there is an appearance before a judge having subject matter jurisdiction to try the case, jurisdiction may be acquired by arraignment on the information even in absence...