State, Law Enforcement Standards Bd. v. Village of Lyndon Station, 78-456

• Decision Date: 28 July 1980
• Docket Number: No. 78-456,78-456
• Parties: STATE of Wisconsin, LAW ENFORCEMENT STANDARDS BOARD, Plaintiff-Respondent, v. VILLAGE OF LYNDON STATION, Juneau County, Wisconsin; John Adams: Phillip Kress: and Edward Walsh, Defendants-Appellants.
• Court: Wisconsin Court of Appeals

Page 818

295 N.W.2d 818

98 Wis.2d 229

STATE of Wisconsin, LAW ENFORCEMENT STANDARDS BOARD Plaintiff-Respondent, v. VILLAGE OF LYNDON STATION, Juneau County, Wisconsin; John Adams: Phillip Kress: and Edward Walsh Defendants-Appellants.

No. 78-456.

Court of Appeals of Wisconsin.

Argued Aug. 30, 1980.

Opinion Released July 28, 1980.

Opinion Filed July 28, 1980.

Review Granted.

Jean G. Setterholm (argued), and Jon P. Axelrod and DeWitt, McAndrews & Porter, S. C., Madison, on brief, for defendants-appellants.

James C. McKay, Jr., Asst. Atty. Gen. (argued), and Bronson C. La Follette, Atty. Gen., on brief, for plaintiff-respondent.

Dianne Greenley, Project Director, and Neil Gebhart, Project Asst., on behalf of Center for Public Representation, Reintegration Project, Madison, on brief of amicus curiae.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

DYKMAN, Judge.

This case involves the authority of a municipality to employ a police chief who has been convicted of a felony when such employment violates a rule of the Wisconsin Law Enforcement Standards Board. ¹ William Jessen was convicted of 26 counts of misconduct in public office contrary to sec. 946.12(4), Stats., on April 27, 1973. He was sentenced to 26 concurrent one-year sentences, which were stayed, and was placed on probation for two years. He successfully completed his probation on May 15, 1975.

The Village of Lyndon Station hired Jessen as its police chief on September 30, 1974. The village board was aware of Jessen's convictions, but thought them to be misdemeanors.

In December, 1974, the Wisconsin Law Enforcement Standards (WLES) Board notified the mayor of Lyndon Station, ² in accordance with sec. LES 2.01(1) (d), Wis.Adm.Code, that Jessen's felony convictions disqualified him from employment as a law enforcement officer. ^{3 3} The village board refused to comply with the WLES board's directive, and on May 29, 1978, ⁴ entered into an employment contract with Jessen. On July 8, 1977, the Wisconsin Department of Justice sought mandamus to compel the village to terminate Jessen's employment.

The trial court found that sec. LES 2.01(1)(d), Wis.Adm.Code, was valid and that the municipality was in violation of the rule. The Village of Lyndon Station appeals from the trial court's judgment and order issuing the mandamus.

The issues on appeal are:

(1) Is a violation of sec. 946.12(4), Stats., a felony?

(2) Does art. XIII, sec. 3 of the Wisconsin Constitution, which bars persons convicted of infamous crimes from any office of trust, profit or honor, require the village to terminate Jessen?

(3) Does sec. LES 2.01(1)(d), Wis.Adm.Code, violate the due process and equal protection clauses of the fourteenth amendment to the United States Constitution because it creates an irrebuttable presumption that all persons convicted of felonies are unfit to be law enforcement officers?

(4) Did the enactment of sec. 111.32(5)(h), Stats., which amended the Fair Employment Relations Act by prohibiting discrimination in employment on the basis of arrest and conviction records, repeal or modify sec. LES 2.01(1)(d), Wis.Adm.Code?

(5) Is the state estopped from bringing this action because the district attorney and trial judge in the misconduct in public office action referred to the charges against Jessen as misdemeanors?

(6) Is mandamus the proper remedy to enforce a rule of the Law Enforcement Standards Board?

Is A Violation of Sec. 946.12(4)

a Felony?

At the time of Jessen's conviction, sec. 946.12(4), Stats., was punishable by a fine of not more than $500 or imprisonment of not more than one year or both. Section 939.60, Stats. (1971), provided: "A crime punishable by imprisonment in the state prison is a felony. Every other crime is a misdemeanor." Section 973.02, Stats., provides in relevant part: "(a) sentence of one year may be to either the Wisconsin state prisons or the county jail." Thus, a violation of sec. 946.12(4) would appear to be a felony. However, when faced with much the same question involving sec. 940.24, Stats. (1973), the court said in State v. Asfoor, 75 Wis.2d 411, 438, 249 N.W.2d 529, 541 (1977):

Because this crime is punishable by imprisonment in the state prison, it would seem to be a felony, but one cannot come to this conclusion without an examination of State ex rel. Gaynon v. Krueger, 31 Wis.2d 609, 143 N.W.2d 437 (1966). In Gaynon it was argued that because the statute in question imposed a penalty of imprisonment of not more than a year, it was a felony. The court noted that when the statute in question was created the legislature intended its violation to be a misdemeanor. That was so because at the time the statute was created it was generally recognized that statutes which did not designate a place of imprisonment created misdemeanors. Id. at 615-16, 143 N.W.2d at 440. The court held that "(t)o upgrade a misdemeanor to a felony requires a clear expression of intent of the legislature." Id. at 620, 143 N.W.2d at 442. The court went on to note that the statute in question was not part of the criminal code and was not under consideration when that code was drafted. Section 940.24(1) is part of the criminal code.

Appellants argue that the analysis in State ex rel. McDonald v. Douglas County Cir. Ct., 95 Wis.2d 423, 290 N.W.2d 559 (Ct.App.1980), which held that sec. 346.67, Stats., ⁵ was a misdemeanor, requires this court to conclude that sec. 946.12(4), Stats., is a misdemeanor.

In McDonald, the court said:

We conclude that a violation of sec. 346.67 is a misdemeanor. In 1935 it was created as a misdemeanor, not a felony. . . . The penalty for the offense has not been changed since 1935. Accordingly, the grade has not been changed since 1935. As no substantive changes have been made, a violation of sec. 346.67 remains a misdemeanor, as it was in 1935. McDonald, 95 Wis.2d at 428-29, 290 N.W.2d at 562.

The same reasoning is applicable here, but with the opposite result. Section 946.12, Stats., was created by sec. 1, ch. 696, Laws of 1955, and combined five previous criminal statutes. ⁶

The legislative history of the penalty for a violation of sec. 946.12(4), Stats., indicates that it has held a felony status since 1915. Prior to 1915, sec. 4549, Stats. (1898), provided a penalty of "imprisonment in the county jail not more than one year, or by fine not exceeding five hundred dollars." In 1909, the legislature changed the penalty to "imprisonment in the county jail not more than (one year, or in the state prison not more than) 5 years, or by a fine not exceeding $500." Ch. 282, Laws of 1909. The penalty was again changed in the 1955 revision of the criminal code to "not more than $500 or imprisoned not more than one year or both."

The legislature recently revised the criminal code to indicate the status of all crimes. ⁷ Section 946.12, Stats., was classified as a Class E felony, punishable by a fine not to exceed $10,000 or imprisonment not to exceed two years, or both. ⁸ In the legislative analysis of this chapter, the Joint Legislative Council noted that three felonies had been reclassified as misdemeanors, 15 misdemeanors as felonies and nine crimes as civil forfeitures. Section 946.12 was not listed as having been reclassified in any manner.

Appellants argue that it is unreasonable to characterize sec. 946.112, Stats., as a felony because four of the five crimes, combined in the statutes were "unquestionable misdemeanors". Wisconsin appellate courts have refused to upgrade a misdemeanor to felony status solely upon the basis of the statutory definition of a felony. Wilson v. State, 1 Wis. 184 (1853); Gaynon, 31 Wis.2d 609, 143 N.W.2d 437; McDonald, 95 Wis.2d 423, 290 N.W.2d 559.

However, it is not clear that the four previous crimes were misdemeanors after the 1955 criminal code revision. ⁹ Sections 348.219, 348.232, and 348.33, Stats. (1953), provided for less than one year of imprisonment in the county jail as a penalty. Section 348.34, Stats. (1953) provided for a penalty of no more than one year of imprisonment without specifying the place of imprisonment. In the 1955 revision of the criminal code, the penalty for all four crimes was imprisonment for no more than a year, without specifying the place of imprisonment. Thus, the penalty for three of the four crimes was increased to allow imprisonment in state prison. This increase, in light of the definition of "felony" found in sec. 939.60, Stats., cited previously, also reenacted as part of the 1955 revision of the criminal code, is a strong indication of legislative intent to upgrade to felony status.

We hold that a review of the legislative history shows a legislative intent to consider sec. 946.12, Stats., to be a felony.

Effect of Art. XIII, Sec. 3 of the Wisconsin Constitution

Article XIII, sec. 3 of the Wisconsin Constitution reads in pertinent part: "No person convicted of any infamous crime in any court within the United States; . . . shall be eligible to any office of trust, profit or honor in this state."

The term "office" as used in art. XIII, sec. 3 of the Wisconsin Constitution, means "public office." Martin v. Smith, 239 Wis. 314, 327, 1 N.W.2d 163 (1941).

The Wisconsin Supreme Court in Becker v. Green County, 176 Wis. 120, 124, 184 N.W. 715 (1922), reh. 176 Wis. 120, 186 N.W. 584 (1922), concluded that a crime punishable by imprisonment in a state prison, i. e., a felony, ¹⁰ is an infamous crime within the meaning of art. XIII, sec. 3 of the Wisconsin Constitution.

Whether a village police chief is a public officer or an employee who is not subject to the provisions of art. XIII, sec. 3, Wisconsin Constitution, is less clear. The Wisconsin Supreme Court has long found the difference between a public officer and an employee difficult to discern. Sieb v. Racine, 176 Wis. 617, 624, 187 N.W. 989 (1922). The passage of time has not made the task easier.

A "public officer" in the context of art. XIII, sec. 3 of the Wisconsin...