State ex rel. Murphy v. Voss

• Decision Date: 11 April 1967
• Citation: 34 Wis.2d 501,149 N.W.2d 595
• Parties: STATE ex rel. Roger P. MURPHY, Waukesha Co., Dist. Atty., Petitioner, v. Hon. Clair VOSS, Judge, Circuit Court Branch #2 in and for Waukesha County, Respondent.
• Court: Wisconsin Supreme Court

Page 595

149 N.W.2d 595

34 Wis.2d 501

STATE ex rel. Roger P. MURPHY, Waukesha Co., Dist. Atty., Petitioner, v. Hon. Clair VOSS, Judge, Circuit Court Branch #2 in and for Waukesha County, Respondent.

Supreme Court of Wisconsin.

April 11, 1967.

Bronson C. La Follette, Atty. Gen., Madison, Roger P. Murphy, Dist. Atty., Waukesha Co., Waukesha, for petitioner.

Robert T. McGraw, Waukesha, for respondent.

HALLOWS, Justice.

We start with the fundamental proposition that under the Sixth Amendment to the United States constitution and sec. 7, art. I, of the Wisconsin constitution all persons are entitled in a criminal prosecution to an impartial jury trial and this right extends to misdemeanors. A jury trial by sec. 5, art. I, of the Wisconsin constitution may be waived by the parties in all cases in the manner prescribed by law. By way of implementation, sec. 957.01, Stats., provides for a trial by a jury of 12 in all cases in courts of record and the waiver of such jury trial requires the approval of the court and the consent of the state.

The public policy involved in the questions presented on this appeal is expressed partly at least in the recognition of a constitutional jury trial for misdemeanors and partly in providing a fair and efficient method of adjudicating the vast number of misdemeanor cases inexpensively to the party involved and to the public. To this end the court reorganization act of 1961 originally provided the trial of misdemeanor cases was to be in the county courts. Appeals from such cases were to be to the circuit court except in cases where the trial was to a 12-man jury and in those cases the appeal was directly to the supreme court. See Bill 235, A (1961), creating sec. 958.075, Stats. But in the legislature Bill 235, A was amended and sec. 958.075 was enacted in its present form to provide all appeals in misdemeanor cases are to the circuit court where a trial de novo is had. ³ Part of the reason for this amendment was to accommodate Milwaukee county where no transcript of the testimony is made in misdemeanor cases and hence an appeal to this court on the record could not be had. Consequently, a trial de novo was required in the circuit court with the right to a constitutional jury of 12.

However, if a case is scheduled for a 12-man jury trial in the county court, that court can transfer the case to the circuit court, which was done in the instant cases, under sec. 251.185(2), Stats., and the appeals therefrom would be to the supreme court. Sec. 274.09, Stats. Besides this type of transfer, a circuit court may transfer on its own motion small claims cases under ch. 299, Stats., to the county courts. Sec. 251.185(1), Stats. And in counties having a population of 200,000 or more, cases within the concurrent jurisdiction of the county and circuit courts may be transferred between them whenever the county board of judges so determines. Sec. 251.185(3), Stats. Thus it is possible under the present laws to have a trial to the court or a trial to a six-man jury in the county court and a trial de novo either to the court or to a 12-man jury in the circuit court.

This court recently held in State ex rel. Sauk County D.A. v. Gollmar (1966), 32 Wis.2d 406, 145 N.W.2d 670, the consent of the district attorney is necessary for a waiver by the defendant of a 12-man jury under sec. 957.01(1), Stats., and a demand for a six-man jury in a misdemeanor case in the county court requires for its validity and effectiveness as a waiver of a 12-man jury the consent of the district attorney. By the same reasoning a demand to try a misdemeanor to the court would constitute a waiver of a 12-man jury and would require the consent of the district attorney.

As a result of the Gollmar Case and its logical application, a district attorney has the power to require a 12-man jury in every misdemeanor case by simply refusing to consent to a six-man jury trial or to a trial to the court, and the county court under sec. 251.185(2), Stats., may then transfer to the circuit court all these cases. Respondent argues that in the court reorganization act of 1961 misdemeanant-defendants were given an opportunity for a speedy intermediate appeal of their cases by trial de novo in the circuit court by the provision in sec. 958.075(1), Stats. He points out misdemeanants were also given a right to appeal to the circuit court from a county court denial of a new trial by sec. 957.255, Stats. It is argued the procedure by which the district attorney refuses to consent to waivers of 12-man juries and the county court transfers all misdemeanor cases to the circuit court is nothing short of a judicial repeal of these appellate provisions of sec. 958.075, Stats., defeats the intention of the legislature and is a violation of the equal protection of the laws.

While the present procedure of handling misdemeanor cases leaves much to be desired from the standpoint of fairness and efficiency in the administration of justice, this court cannot fashion the remedy proposed by the respondent. In order to preserve the appeal from the county court by trial de novo in the circuit court, the respondent argues every transfer of the 12-man jury trial to the circuit court should require the defendant's consent. Even if we had the power, which we do not have, to enact this remedy this solution would not solve the problem which is rooted in the requirement of consent by the district attorney to the waiver of a 12-man jury. The policy of the state to avoid two jury trials, whether of six and then 12 jurors or two 12-man jury trials, is under Gollmar vested in the discretion of the district attorney. In the original reorganization act, the policy of allowing only one 12-man jury trial was expressed in a direct appeal to the supreme court from the county court of a 12-man jury trial.

The respondent's argument goes farther, however, and is based upon the district attorney's refusal to waive a 12-man jury in favor of a court trial or a six-man jury and thus frustrating the appeal provisions of sec. 958.075, Stats. The state policy in granting uniform criminal jurisdiction to all county courts (except Milwaukee county) contemplated waiver of a 12-man jury at least in most of the misdemeanor cases. That had been the general practice throughout Wisconsin; otherwise, there was no purpose in providing for appeals from the county court in misdemeanor cases in the circuit court. We think if a district attorney refuses as a matter of practice to waive a 12-man jury in misdemeanor cases he would abuse his power and be derelict in his duty.

We hold no constitutional right to the equal protection of the laws was violated by the transfers. The right to an appeal from the county court to the circuit court is granted by statute conditionally and is not of constitutional dimensions. In McKane v. Durston (1894), 153 U.S. 684, 687, 14 S.Ct. 913, 38 L.Ed. 867, it was said:

'An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due...