State ex rel. Pedersen v. Blessinger

• Citation: 56 Wis.2d 286,201 N.W.2d 778
• Decision Date: 09 November 1972
• Docket Number: No. S,S
• Parties: STATE ex rel. Michael PEDERSEN, Appellant, v. Joseph BLESSINGER, Sheriff of Racine County, Respondent. tate 97.
• Court: Wisconsin Supreme Court

Page 778

201 N.W.2d 778

56 Wis.2d 286

STATE ex rel. Michael PEDERSEN, Appellant, v. Joseph BLESSINGER, Sheriff of Racine County, Respondent.

No. State 97.

Supreme Court of Wisconsin.

Nov. 9, 1972.

Arthur B. Nathan, Racine, for appellant.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for respondent.

HALLOWS, Chief Justice.

On July 20, 1971, Michael Pedersen pleaded no contest to a state charge of disorderly conduct (sec. 947.01(1), Stats.) and was fined $50 and costs. He also pleaded no contest to a state charge of operating a vehicle without a license (sec. 343.05, Stats.) and was fined $35 and costs and was given 60 days in which to pay the fines and costs. When he failed to do so a commitment was issued in which he was ordered to serve not more than 20 and 15 days in the county jail or until he paid the fines and costs. The record is not clear whether these time limits were originally set at the time of conviction or at the time the commitment was issued.* The original sentence is not in the record. Pedersen was arrested and jailed and at a hearing for a writ of habeas corpus Pedersen claimed he was indigent and that the imprisonment for his inability to pay was unconstitutional as a denial of the equal protection of the laws. The trial court found the statutes constitutional and from the order quashing the writ, Pedersen appealed, and he was granted a stay during his appeal.

Pedersen claims it is unconstitutional to imprison him because of his inability to pay the fines and rests his argument upon Tate v. Short (1971), 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130; Morris v. Schoonfield (1970), 399 U.S. 508, 90 S.Ct. 2232, 26 L.Ed.2d 773; and Williams v. Illinois (1970), 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586. The holding of these cases as distinguished from their language does not control this case, as the question here involved was expressly not decided in Pedersen's favor when in the Tate Case the court said, pp. 400--401, 91 S.Ct. p. 672:

'Nor is our decision to be understood as precluding imprisonment as an enforcement method when alternative means are unsuccessful despite the defendant's reasonable efforts to satisfy the finss by those means; the determination of the constitutionality of imprisonment in that circumstance must await the presentation of a concrete case.'

What these cases teach is that one who has been convicted of a crime and fined is not to be imprisoned in satisfaction of the fine or in lieu thereof if he is unable to pay the fine. The holdings go no farther. In Williams, the Illinois statute authorized both a fine and an imprisonment. Williams was sentenced to the maximum of one year for petty theft and fined $500 plus costs. The judgment provided that if Williams did not pay the fine and costs by the expiration of the imprisonment he was to remain in jail until the amount was satisfied at the rate of $5 per day. The supreme court held the statute as applied to Williams, an indigent, worked an invidious discrimination solely because he was too poor to pay the fine and therefore violated the Equal Protection Clause. Actually, the holding was much narrower because Williams had served the maximum term and the court said imprisonment for failure to pay the fine could not exceed the maximum imprisonment term. And, it is to be noted that the imprisonment was in satisfaction of the fine and the maximum term had already been served. In the instant case, imprisonment is not in lieu of the fines but is a means to enforce their collection and is in no sense a punishment for the crime or in payment of the fines.

Although sec. 947.01, Stats., provides for a fine of not more than $200 or imprisonment for not more than 90 days or both and also sec. 343.05(3), Stats., provides for a fine of not more than $100 or imprisonment of not more than six months, or both, for the first offense, Pedersen's sentence was a fine only.

In Morris v. Schoonfield, remanded in light of Williams, Mr. Justice White wrote a concurring opinion in which he stated the principle of Williams applied to jailing of an indigent for failure to pay a fine although no accompanying prison sentence was involved. In Tate v. Short, supra, the Texas statute provided for a fine only for traffic offenses and also for imprisonment for the nonpayment of the fine at the rate of $5 per day. Thus imprisonment on a predetermined formula was in satisfaction and in payment of the fine. The court in Tate adopted Justice White's view and stated as follows, p. 398, 91 S.Ct. p. 671:

"the same constitutional defect condemned in Williams also inheres in jailing an indigent for failing to make immediate payment of any fine, whether or not the fine is accompanied by a jail term and whether or not the jail term of the indigent extends beyond the maximum term that may be imposed on a person willing and able to pay a fine. In each case, the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full."

Thus a jail sentence cannot be automatically substituted for a fine in the event the defendant is unable to immediately pay the fine. This is the typical $30 or 30 days sentence. We do not have this alternative; nor a predetermined equivalency formula; nor do we have imprisonment in terms of payment of a fine, much less at a certain dollar rate per day. We do have in sec. 973.07, Stats., a six months' limitation on the enforcement method of collection of a fine by imprisonment, supposedly on the ground of public policy that if six months' incarceration will not induce payment, a longer period will be fruitless. In village, city and county ordinance violations, the sanction can be only a fine or a forfeiture as those units of government lack sovereignty which is necessary to make such violation a crime involving the punishment of imprisonment. State ex rel. Keefe v. Schmiege (1947), 251 Wis. 79, 28 N.W.2d 345.

The problem of imposing fines and their collection from indigents has been the subject of much consideration by scholars. The standards on sentencing alternatives and procedures of the American Bar Association ¹ reflects the philosophy of rethinking the function of the fine as a criminal sanction and when a fine is conceived as an alternative to a jail sentence, imprisonment following default in the payment of the fine is illogical and results in unfairness to those unable to pay because of their poverty. Two approaches have been suggested to alleviate imprisonment for nonpayment. This is in keeping with the credit way of doing business--even before the advent of our credit-card society. The Model Penal Code in sec. 302.1(1) ² provides for instalment payments or the payment within a specified period of time. See also, Note, Fines and Fining--An Evaluation, 101 U. of Pa.Law Rev. 1013, 1022--1024 (1953); Note, Imprisonment of Indigents or Non-Payment of Fines or Court Costs: The Need for Legislation That Will Provide Protection for the Poor, 48 N.D.L.Rev. 109 (1971); Discriminations Against the Poor, 81 Harv.L.Rev. 435, 448 (1967); California Penal Code 1205, 1966 supplement; N.Y. Criminal Procedure, sec. 470--d(1)(b); Amended Session Laws (1967), ch. 681, sec. 61. Another approach is that fines be imposed only on those who are likely to be able to pay them and this determination should be made at the time of sentencing. See Model Penal Code, sec. 7.02(3)(a). However, a variation exists to cover cases where the defendant is unable to pay a fine imposed when his ability to pay has not been predetermined. In such a case he may at any time apply to the court for a resentence. See New York Code, Criminal Procedure, sec. 470--d(1)(b), Amended Session Laws (1967), ch. 681, sec. 61. This alternative we have in Wisconsin under the doctrine of Hayes v. State (1970), 46 Wis.2d 93, 175 N.W.2d 625, if the application is made or the court moves sua sponte within 90 days of the sentencing.

Of course, if a court is to determine at the time of sentencing whether a defendant is able to pay a fine, the result may be, at least in state cases, although it would be impossible in ordinance cases, that all defendants would spend a short term confinement in jail as a punishment in order to avoid an inverse discrimination. In fact, Mr. Justice Blackmun in his concurring opinion in Tate has well put it in these words, p. 401, 91 S.Ct. p. 672;

'Eliminating the fine whenever it is prescribed as alternative punishment avoids the equal protection issue that indigency occasions and leaves only possible Eighth Amendment considerations. If, as a nation, we ever reach that happy point where we are willing to set out personal convenience to one side and we are really serious about resolving the problems of traffic irresponsibility and the frightful carnage it spews upon our highways, a development of that kind may not be at all undesirable.'

We consider sec. 973.05(1), ³ Stats., to be constitutional. There may be isolated cases where the application of the section might work a discrimination but such an application is not required by the force of commands of these statutes. A period of 60 days is set in sec. 973.05(1). This is the equivalent timewise in most cases of instalment payment. We do not read Tate as requiring instalment payment, although courts seemed to be divided on this point. In State v. De Bonis (1971), 58 N.J. 182, 276 A.2d 137, the court took the view that a provision for instalment payment was required; but the court in Rutledge v. Turner (1972) (Okl.Cr.), 495 P.2d 119, held that a future date for total payment in lieu of payment in instalments was acceptable. Certainly, under our statute a trial judge can order instalment payments within the 60-day period. The question then remains is whether 60 days is a reasonable time for the payment of fines in all cases. We think...