State ex rel. Teunas v. Kenosha County

• Decision Date: 11 February 1988
• Docket Number: No. 86-1425,86-1425
• Citation: 418 N.W.2d 833,142 Wis.2d 498
• Parties: STATE ex rel. James TEUNAS, Plaintiff-Appellant and Cross-Respondent, v. The COUNTY OF KENOSHA, a body corporate, and Frederick Ekornaas, Sheriff for Kenosha County, Defendants-Respondents and Cross-Appellants.
• Court: Wisconsin Supreme Court

Page 833

418 N.W.2d 833

142 Wis.2d 498

STATE ex rel. James TEUNAS, Plaintiff-Appellant and Cross-Respondent, v. The COUNTY OF KENOSHA, a body corporate, and Frederick Ekornaas, Sheriff for Kenosha County Defendants-Respondents and Cross-Appellants.

No. 86-1425.

Supreme Court of Wisconsin.

Argued Dec. 1, 1987.

Decided Feb. 11, 1988.

James A. Walrath, Milwaukee, argued, for plaintiff-appellant and cross-respondent; Shellow, Shellow & Glynn, S.C., Milwaukee, on brief.

Michael T. Hopkins, Sp. Prosecutor, for defendants-respondents and cross-appellants.

Thomas J. Balistreri, Asst. Atty. Gen., Donald J. Hanaway, Atty. Gen., amicus curaie, on brief.

Phyllis M. DeCarvalho and the American Civil Liberties Union/Wisconsin Foundation, Milwaukee, amicus curaie, on brief.

CECI, Justice.

This case is before this court on certification from the court of appeals, pursuant to section (Rule) 809.61, Stats. The plaintiff-appellant, James Teunas (Teunas or appellant), appeals from a judgment of the circuit court for Kenosha county, Jerold W. Breitenbach, Circuit Judge, declaring the Kenosha County obscenity ordinance, section 9.10.2 of the Municipal Code of Kenosha County, to be constitutional, with the exception of subsections (2)(c) and (d), which were found invalid and severed from the ordinance. Defendants-respondents, Kenosha County and Fred Ekornaas (Kenosha County or respondents), filed a cross-appeal from that portion of the judgment declaring subsections (2)(c) and (d) invalid and from the court's order permanently enjoining the enforcement of section 9.10.2 unless "contemporary community standards" as set forth in the ordinance were defined in prosecution as "statewide community standards."

On January 7, 1986, the Kenosha County Board of Supervisors passed Ordinance No. 34, codified as section 9.10.2 of the Municipal Code of Kenosha County, which provided in part that:

"(2) Whoever does any of the following with knowledge of the character and content of the material or performance is guilty of a violation of the Municipal Code of Kenosha County:

"(a) Imports, prints, advertises, sells, has in his or her possession for sale, or publishes, exhibits or transfers any obscene material.

"(b) Advertises, produces or performs in any obscene performance.

"(c) Has in his or her possession, with intent to transfer or exhibit to a person under the age of 18 years, any obscene material.

"(d) Transfers or exhibits any obscene materials to a person under the age of 18 years.

"(e) Requires, as a condition to the purchase of periodicals, that a retailer accept obscene material."

Obscene material was defined as:

"... a writing, picture, sound recording or film and 'Obscene Performance' means a live exhibition before an audience which:

"1. The average person, applying contemporary community standards, would find appeals to prurient interests if taken as a whole;

"2. Under contemporary community standards, describes or shows sexual conduct in a patently offensive way; and "3. Lacks serious literary, artistic, political or scientific value as measured by objective standards if taken as a whole."

On January 21, 1986, James Teunas, an adult resident of Kenosha county, sought to have the obscenity ordinance declared unconstitutional. Teunas is the owner of a retail establishment doing business as "Video Connection" in the town of Somers in Kenosha county. Teunas alleged uncertainty regarding his ability to lawfully engage in the sale of certain video tapes and asserted that section 9.10.2 was unconstitutional for several reasons. The trial court found that the Kenosha County Board had acted in passing section 9.10.2 pursuant to its statutory authority under section 59.07(64), Stats., to preserve "good order." The court further found that although the obscenity ordinance deals with "matters of statewide concern," the ordinance was valid since the state had not acted in this area, and because the ordinance attempted to deal only with a "matter of local concern." However, the court concluded that subsections (2)(c) and (d) of the ordinance concerning minors conflicted with section 944.25, and were, therefore, invalid. Additionally, the court enjoined enforcement of section 9.10.2 unless prosecutions for violations of the ordinance provided for the definition of "contemporary community standards" as "statewide community standards." The court of appeals certified the following issues:

"(1) Did the Kenosha County Board lack statutory authority to enact an obscenity ordinance?

"(2) Did the Kenosha County Board lack authority to enact an obscenity ordinance because the ordinance deals with a statewide concern rather than a local matter?

"(3) Is the Kenosha County obscenity ordinance invalid for any of the following reasons: (a) the state has preempted the field; (b) it conflicts with state law; or (c) it is vague and indefinite."

We only reach the first of the certified issues. We find that the Kenosha County Board of Supervisors did not have the statutory authority to enact the obscenity ordinance and, therefore, need not address the remaining issues.

The scope of county board powers is rooted in the Wisconsin Constitution. County government is established by the legislature under the authority of Wis.Const. art. IV, section 23, ¹ and the powers of the county boards of supervisors are limited to those which are conferred by the legislature:

"The legislature may confer upon the boards of supervisors of the several counties of the state such powers of a local, legislative and administrative character as they shall from time to time prescribe." Wis.Const. art. IV, section 22.

Thus, contrary to the direct and expansive delegation of power to municipalities under Wis.Const. art. XI, section 3, ² the authority of county boards is limited. It has consequently become well recognized that "a county board has only such powers as are expressly conferred upon it or necessarily implied from the powers expressly given or from the nature of the grant of power." Town of Vernon v. Waukesha County, 102 Wis.2d 686, 689, 307 N.W.2d 227 (1981). Stated otherwise: "counties are creatures of the Legislature and their powers must be exercised within the scope of authority ceded to them by the state...." Dane County v. Department of Health & Social Services, 79 Wis.2d 323, 329-30, 255 N.W.2d 539 (1977) (citing State ex rel. Conway v. Elvod, 70 Wis.2d 448, 450, 234 N.W.2d 354 (1975)).

Since a county board must have a statutory source upon which the power it exercises is based, whether the Kenosha County Board of Supervisors had the authority to enact section 9.10.2 involves a question of statutory interpretation. The interpretation of a statute involves a question of law reviewable by this court without deference to the decision of the trial court. Waste Management of Wisconsin, Inc. v. Department of Natural Resources, 128 Wis.2d 59, 81, 381 N.W.2d 318 (1986).

The general powers which the legislature has delegated to the county boards of supervisors are set forth at section 59.07, Stats. Kenosha County asserts, and the trial court found, that the authority to enact the obscenity ordinance exists under section 59.07(64), which provides that the board of each county may exercise power to "[e]nact ordinances to preserve the public peace and good order within the county." Section 59.07(64), in conjunction with the following prefatory language of section 59.07, is asserted by Kenosha County as compelling the conclusion that regulation of obscenity is within the power delegated to county boards: "The board of each county may exercise the following powers, which shall be broadly and liberally construed and limited only by express language." Section 59.07. However, the scope of the grant of power concerning "public peace and good order" is not without ambiguity. When the precise scope of a statute's application is not defined, reference may be made to legislative history and other matters beyond the statutory language to determine its purpose and effect. Labor & Farm Party v. Elections Board, 117 Wis.2d 351, 355, 344 N.W.2d 177 (1984). We, therefore, examine sources extraneous to the express language of the statute to determine whether the reference to "peace and order" is sufficiently broad to permit the exercise of power by Kenosha County to enact the obscenity ordinance.

A review of the drafting files concerning 1955 Wis.Laws, ch. 651, through which section 59.07 was enacted, indicates that although an initial draft of Senate Bill 535 introducing ch. 651 contained language similar to that adopted in section 59.07(64), this language was in fact broader than that ultimately adopted. The initial draft of S.B. 535 provided:

"Except as elsewhere in the statutes specifically provided, each board has such powers of a local, legislative and administrative nature as are necessary for the management and control of all county property, institutions, finances, highways and navigable waters, and for the protection and promotion of the health, safety and welfare of the public and the financial and commercial benefit and government and good order of the county."

This language was, however, subsequently deleted. The language adopted in section 59.07(64) was later drafted in apparent response to a letter from a Wisconsin district attorney who proposed the following language: "The board of any county may enact ordinances to provide for the good order of the community and the regulation of local affairs." This language was stated to have been drafted based upon this court's decision in State ex rel. Keefe v. Schmiege, 251 Wis. 79, 28 N.W.2d 345 (1947), in which we held that counties may not impose criminal punishment for violation of county ordinances, but further held as follows:

"Nothing in this opinion is to be taken as in any way casting doubt upon the power of the legislature to vest in a county board or municipal council power to provide for the good order...