State ex rel. McCaffrey v. Shanks, 83-901-W

• Decision Date: 04 April 1985
• Docket Number: No. 83-901-W,83-901-W
• Parties: STATE of Wisconsin, ex rel. Debra L. McCAFFREY, Relator-Petitioner, v. Allen B. SHANKS, Sheriff of Sauk County, Wisconsin, Respondent. *
• Court: Wisconsin Court of Appeals

Page 743

369 N.W.2d 743

124 Wis.2d 216

STATE of Wisconsin, ex rel. Debra L. McCAFFREY, Relator-Petitioner, v. Allen B. SHANKS, Sheriff of Sauk County, Wisconsin,

Respondent. ^*

No. 83-901-W.

Court of Appeals of Wisconsin.

Submitted on Petition April 6, 1984.

Opinion Released April 4, 1985.

Opinion Filed April 4, 1985.

Sarah Furey Crandall and Crandall Law Office, Madison, for relator-petitioner.

Bronson C. La Follette, Atty. Gen., and Michael R. Klos, Asst. Atty. Gen., for respondent.

Before GARTZKE, P.J., DYKMAN, J., and RUDOLPH T. RANDA, Reserve Judge.

GARTZKE, Presiding Judge.

Deborah McCaffrey has petitioned the court of appeals for a writ of habeas corpus to review her bindover for trial on a charge of violating sec. 161.41(1m), Stats., possession of a controlled substance with intent to deliver, party to a crime, sec. 939.05, Stats., a felony. ¹ She alleges in her petition that the criminal complaint is based on evidence obtained through an invalid search warrant, fails to state sufficient facts to constitute probable cause, and that the evidence at the preliminary hearing was insufficient to bind her over for trial.

We hold that habeas corpus may be sought directly from the court of appeals. We hold that habeas corpus is available under the present case law (the validity of which we question) to review the sufficiency of a criminal complaint and the sufficiency of the evidence for a bindover following a preliminary examination. We conclude that we may refer the petition to the circuit court for disposition, but we decline to do so. We conclude that the warrant is valid, the complaint is sufficient, and probable cause was shown at the preliminary. We therefore deny the petition.

1. Original Action for Habeas Corpus in the Court of Appeals

This is an original action in the court of appeals for habeas corpus. We have an obligation to inquire sua sponte into our jurisdiction. St. ex rel. Teach. Assts. v. Wis.--Madison Univ., 96 Wis.2d 492, 495, 292 N.W.2d 657, 658 (Ct.App.1980). We conclude that we have jurisdiction.

The court of appeals has original jurisdiction to issue prerogative writs. Wis. Const. art. VII, sec. 5(3). Habeas corpus is a prerogative writ. The Attorney General v. Blossom, 1 Wis. 277 [*317], 278 [*319] (1853). The court of appeals therefore possesses jurisdiction to entertain the petition by virtue of the constitution.

Our constitutional jurisdiction has been implemented by statute. A petition for habeas corpus may be made to the "supreme court, the court of appeals or the circuit court of the county, or to any justice or judge of the supreme court, court of appeals or circuit court or to any court commissioner, within the county where the prisoner is detained; ...." Sec. 782.03, Stats.

2. Habeas Corpus Available Remedy Before Conviction to Review Alleged Errors

Three propositions regarding habeas corpus have gone almost unchallenged since State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N.W. 1046 (1901). First, habeas corpus reaches only jurisdictional defects. ² Second, the insufficiency of the evidence supporting a court's order or judgment depriving a person of liberty is not a jurisdictional defect and is therefore not reviewable on habeas corpus prior to appeal. ³ Third, habeas corpus is nevertheless available to test a criminal complaint and to test the sufficiency of the evidence for a bindover for trial following a preliminary examination.

These propositions have been applied, or their applicability assumed, in many cases, including several decided since the criminal code was revised by ch. 255, Laws of 1969. See, e.g., J.V. v. Barron, 112 Wis.2d 256, 265, 332 N.W.2d 796, 801 (1983); State v. Berby, 81 Wis.2d 677, 684, 260 N.W.2d 798, 802 (1978); State v. Olson, 75 Wis.2d 575, 584, 250 N.W.2d 12, 17 (1977); State ex rel. Hussong v. Froelich, 62 Wis.2d 577, 583, 215 N.W.2d 390, 394 (1974); State ex rel. Cullen v. Ceci, 45 Wis.2d 432, 440, 173 N.W.2d 175, 178 (1970); State v. Copening, 103 Wis.2d 564, 578, 309 N.W.2d 850, 857 (Ct.App.1981); State ex rel. Wohlfahrt v. Bodette, 95 Wis.2d 130, 132, 289 N.W.2d 366, 367 (Ct.App.1980).

Indeed, State ex rel. Dore v. Stoltz, 42 Wis.2d 534, 538, 167 Wis.2d 214, 216 (1969), declared that habeas corpus is the sole remedy to challenge a complaint and a 1967 bindover.

We are bound by the precedents established by the supreme court of this state, even if we disagree with a particular precedent. State v. Lossman, 118 Wis.2d 526, 533, 348 N.W.2d 159, 163 (1984). Well before Lossman, we acknowledged our obligation to follow supreme court precedents, Livesey v. Copps Corp., 90 Wis.2d 577, 581, 280 N.W.2d 339, 341 (Ct.App.1979), and we meet it in this appeal.

Accordingly, we conclude that habeas corpus is available to petitioner to challenge the criminal complaint and to test the sufficiency of the evidence for the bindover. Because, however, we question whether habeas corpus has been such a remedy since the 1969 revision of the criminal code, we next discuss the basis for our doubts.

3. Availability of Habeas Corpus to Test Complaint and Bindover Questioned

a. Reasons for Inquiry

Our inquiry is prompted by the strong policy against interlocutory appellate review in criminal cases.

A preliminary examination is a hearing to determine if probable cause exists to believe the defendant has committed a felony. Sec. 970.03(1), Stats. If the court finds probable cause, defendant is bound over for trial. Sec. 970.03(7). A bindover is not a determination that the defendant is guilty. State v. Dunn, 121 Wis.2d 389, 396, 359 N.W.2d 151, 154 (1984). Consequently, a bindover does not decide the entire matter in litigation between the state and the defendant. For that reason, a bindover is not appealable as of right under sec. 808.03(1), Stats. A review of a bindover is therefore interlocutory.

Interlocutory reviews are discouraged to avoid unnecessary interruptions and delays in the circuit courts and to reduce the burden on the appellate courts. Bearns v. ILHR Department, 102 Wis.2d 70, 74, 306 N.W.2d 22, 25 (1981). The provisions of sec. 808.03, Stats., with respect to appealability are intended to discourage interlocutory appeals. Id.

The policy against interlocutory appeals is particularly important in criminal prosecutions. In State v. Jenich, 94 Wis.2d 74, 80, 288 N.W.2d 114, 117 (1980), the court recognized, "as did the United States Supreme Court in Abney [v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) ], that interlocutory or piecemeal appeals are undesirable, especially in criminal prosecutions. The delays caused by piecemeal appeals are 'inimical to the effective and fair administration of the criminal law.' Dibella v. United States, 369 U.S. 121, 126 [82 S.Ct. 654, 658, 7 L.Ed.2d 614] (1962)."

This policy against interlocutory appeals in criminal cases is exceptionally strong. It prevents an appeal as of right even when it is claimed that the prosecution subjects a defendant to double jeopardy, contrary to the federal and Wisconsin constitutions. Jenich, 94 Wis.2d at 97 a, 292 N.W.2d at 348-49.

The policy against interlocutory appeals is reflected and applied specifically to habeas corpus in sec. 974.02(1), Stats. Section 974.02(1), provides in relevant part:

An appeal of an order or judgment on habeas corpus remanding to custody a prisoner committed for trial under s. 970.03 [governing preliminary examination] shall be taken under ss. 808.03(2) and 809.50 [the statute and appellate rule governing permissive appeals], with notice to the attorney general and the district attorney and opportunity for them to be heard.

Habeas corpus is a civil action, even if brought about by a criminal charge. State ex rel. Korne v. Wolke, 79 Wis.2d 22, 26, 255 N.W.2d 446, 448 (1977). Hence, without sec. 974.02(1), an order or judgment on a petition for habeas corpus challenging a bindover would be appealable as of right under sec. 808.03(1), Stats., because it disposes of the entire matter in litigation in that action. Section 974.02(1) converts the order or judgment into a permissibly appealable disposition and prevents an interlocutory appeal as of right. ⁴

Revision of the case law rule allowing habeas corpus to test the sufficiency of a complaint and of the evidence for bindover would not deprive a criminal defendant of a remedy. Defects in the complaint and bindover may be raised in an appeal as of right from the judgment of conviction. See, e.g., State v. Olson, 75 Wis.2d 575, 250 N.W.2d 12 (1977). The defendant may also petition this court for leave to appeal an order in appealable form sustaining the complaint or directing bindover, and if a proper showing is made under sec. (Rule) 809.50(1), Stats., relief is available through that route.

We turn to the reasons for questioning the validity of the case law rule since the criminal code was revised.

b. Basis for Doubt

(1) State ex rel. Durner Rationale

State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N.W. 1046 (1901), is the prime precedent for the rule that habeas corpus is available to challenge the sufficiency of a complaint and the evidence for a bindover. We conclude from our reexamination of this 1901 decision that it is incompatible with the present criminal code.

We reach that conclusion because the rationale for State ex rel. Durner no longer applies under the present criminal code. The preliminary examination in State ex rel. Durner was held before a "magistrate," the justice of a city police court. ⁵ Since 1969 preliminary examinations have been conducted by the circuit court. The distinction between proceedings before a magistrate and a circuit court is critical to the "jurisdictional defect" theory in State ex rel. Durner. The Durner theory is that the jurisdiction of the magistrate to commit the defendants for trial depended upon the sufficiency of the evidence at the preliminary, even though the jurisdiction of a court would not.

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