State v. Boyd

• Decision Date: 23 August 2000
• Docket Number: No. 99-2633.,99-2633.
• Citation: 618 N.W.2d 251,238 Wis.2d 693,2000 WI App 208
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. William W. BOYD, and One White Chevrolet Pickup Truck, VIN 1GCEK14R7WE253553, Defendants-Respondents-Cross-Appellants.
• Court: Wisconsin Court of Appeals

238 Wis.2d 693

2000 WI App 208

618 N.W.2d 251

STATE of Wisconsin, Plaintiff-Appellant-Cross-Respondent,¹ v. William W. BOYD, and One White Chevrolet Pickup Truck, VIN 1GCEK14R7WE253553, Defendants-Respondents-Cross-Appellants.

No. 99-2633.

Court of Appeals of Wisconsin.

Submitted on briefs June 26, 2000.

Decided August 23, 2000.

On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted on the briefs of Joseph DeCecco, assistant district attorney of Sheboygan, Robert J. Wells, district attorney of Sheboygan, and James E. Doyle, attorney general.

On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the brief of Richard L. Binder of Rohde Dales LLP, Sheboygan.

Before Brown, P.J., Nettesheim and Anderson, JJ.

¶ 1. ANDERSON, J.

This case concerns a forfeiture action under WIS. STAT. § 973.075(1)(b)1m (1997-98).² The State appeals from a circuit court order concluding that if the entire $28,000 value of William W. Boyd's vehicle were forfeited, the forfeiture would violate the United States Constitution's prohibition of excessive fines. The order thus reduced the forfeited amount to $10,000. Boyd cross-appeals from the order, challenging the court's decision to accept an affidavit based on hearsay information as proof of service. We disagree with the merits of both the appeal and cross-appeal and affirm the order.

BACKGROUND

¶ 2. Boyd was convicted of felony endangering safety by use of a dangerous weapon contrary to WIS. STAT. § 941.20(2)(a). This conviction arose from events occurring on August 5, 1998. Boyd, angry at the city of Elkhart Lake Police Department because he had been arrested for driving while intoxicated three days before, drove around the police station's block twice, stopped his truck in front of the station, got out of the truck and fired a .22-caliber handgun at the police station's door. He then returned to his truck and drove away. A witness observing the events immediately phoned the authorities. ¶ 3. Boyd was subsequently charged, tried and found guilty in a jury verdict. At the sentencing hearing on December 15, 1998, he was personally served with a summons and complaint for the forfeiture action by Assistant District Attorney Joseph DeCecco in accordance with WIS. STAT. § 973.076. The forfeiture complaint alleged that Boyd's 1998 Chevrolet pickup truck should be forfeited to the State pursuant to WIS. STAT. § 973.075(1)(b)1m because Boyd used it to commit the felony. In his answer to the forfeiture complaint, Boyd argued as an affirmative defense that the State did not properly serve him with the summons and complaint. The State subsequently moved for summary judgment, asserting that no factual disputes remained in the action. Boyd responded with his own summary judgment motion in which he contended that the State's service was improper because DeCecco was a party to the action and that the forfeiture of his truck was an excessive fine. A hearing was held on the motions on April 21, 1999.

¶ 4. At the April 21 hearing, the court granted the parties more time to brief issues raised during the course of the hearing. Following up on the request, Boyd's counsel wrote a May 14 letter to the court where he contended:

My search of the Court file for this case (98 CV 667) found no affidavit of service. My search of the criminal case file (98 CF 407) found a photocopy of a nonauthenticated Summons stamped "Proof of Service" on the front, with stamped and written information on the back.... The stamped information is not sufficient to prove service.... The required proof of service is not only not in the Court's file, to the extent it does exist it is not in the form of an affidavit and does not contain the information required by statute. See § 801.10(4)(a), Stats.... Defendant Boyd submits that service and proof of service has failed, and the action should be dismissed.

The court addressed this issue at a May 28, 1999 hearing. It asked DeCecco whether he served an authenticated copy of the summons and complaint on Boyd. Being unfamiliar with service of process in a civil matter, DeCecco admitted that he was unsure whether he served Boyd with an authenticated copy. The court noted that the record was deficient because the State did not file an affidavit or certificate of service. It granted the State additional time to provide an affidavit.

¶ 5. The next hearing was held on June 2, 1999. At that time, the State argued that Boyd had waived his opportunity to contest the authenticity of the service of the summons and complaint because he had not previously raised it. Boyd countered that he questioned the sufficiency of the service of process as an affirmative defense in his answer. He further contended that the affidavit submitted by the State was improper because it was based on hearsay information. Boyd's counsel argued:

Up until today, we had no affidavit of service, of course, as the Court is well aware. Today we're given an affidavit which is not proper, because it is not based on the personal knowledge of the affiant, so your Honor, I believe that this affidavit is not—is not appropriate and not sufficient.

The court announced its decision on the summary judgment motions shortly thereafter. On the issue of the sufficiency of service, the court found that the State's affidavit adequately proved that the service complied with the appropriate statutes. It also found that DeCecco was not a party to the action within the meaning of the statutes governing service. Regarding the claim that the forfeiture was an excessive fine, the court determined that this issue was not appropriate for summary judgment and set a fact-finding hearing for the matter.

¶ 6. The hearing on the excessive fine issue was held on September 1, 1999. After hearing the evidence, the court ruled that Boyd's truck, valued at $28,000, should be sold and the first $10,000 from the proceeds should go to the Elkhart Lake police department. The court noted that in reaching this conclusion it had considered and weighed the following factors: the public's interest in stopping weapons from being transported and used in crimes; the fact that there were no injuries and only nominal damage resulting from Boyd's act; its observation that the State usually did not pursue forfeiture in cases that were not drug-related or fourth-offense drunk driving crimes; the truck was registered as a farm vehicle and not used for primarily personal use; there was no lien on the truck, which effectively increased the penalty on Boyd; and the $28,000 forfeiture would be a disproportionate penalty for an offense carrying a maximum fine of $10,000. The State appeals the reduction in the forfeiture amount. Boyd cross-appeals, contesting the court's decision that the proof of service was sufficient.

DISCUSSION

Appeal

[1]

¶ 7. We begin our discussion by addressing whether the forfeiture of Boyd's $28,000 truck violates the Excessive Fines Clause of the Eighth Amendment.³ This is a constitutional issue which we review de novo. See State v. Hammad, 212 Wis. 2d 343, 347-48, 569 N.W.2d 68 (Ct. App. 1997). If the goal of a civil forfeiture action is, at least in part, punishment, the forfeiture may not be constitutionally excessive. See Austin v. United States, 509 U.S. 602, 610 (1993). We have previously determined that forfeitures under WIS. STAT. § 973.075(1)(b) fall within the purview of the Excessive Fines Clause and are subject to its limitations. See Hammad, 212 Wis. 2d at 352.

¶ 8. Presently, the leading Wisconsin authority on determining whether a civil forfeiture violates the Excessive Fines Clause is Hammad. Attempting to clarify which of the "bumper crop of tests" should be used in this state, the Hammad court instructed that the multi-factor test in State v. Seraphine, 266 Wis. 118, 62 N.W.2d 403 (1954), was the correct analysis to apply. See Hammad, 212 Wis. 2d at 355-56. The Seraphine standard was explained as:

In determining whether a fine authorized by statute is excessive in the constitutional sense, due regard must be had to the object designed to be accomplished, to the importance and magnitude of the public interest sought to be protected, to the circumstances and the nature of the act for which it is imposed, and in some instances, to the ability of accused to pay. In order to justify the court in interfering and setting aside a judgment for a fine authorized by statute, the fine imposed must be so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.

Hammad, 212 Wis. 2d at 355-56 (quoting Seraphine, 266 Wis. at 121-22).

¶ 9. The thrust of the State's argument on appeal is that the circuit court incorrectly interpreted the multi-factor Seraphine standard when it found that the amount of Boyd's forfeiture was excessive. However, since the Hammad court declared that the Seraphine standard was the test for this issue, the United States Supreme Court has addressed it and resolved the question of which test should be applied to evaluate if a fine is excessive. That determination was made in United States v. Bajakajian, 524 U.S. 321 (1998).

¶ 10. In Bajakajian, Bajakajian willfully attempted to remove $357,144 in currency from this country without complying with the requirement in 31 U.S.C. § 5316(a)(1)(A) (1994) to report the removal of sums in excess of $10,000. See Bajakajian, 524 U.S. at 324-25. The government seized the entire amount and instituted forfeiture proceedings pursuant to 18 U.S.C. § 982(a)(1) (1994), which authorized the seizure of any property involved in a § 5316 offense. See Bajakajian, 524 U.S. at 325. The district court ordered a reduced forfeiture of $15,000, refusing to seize the entire sum on Eighth Amendment grounds. See id. at 326. In addition to this forfeiture, the court ordered a sentence of...