State v. Braun
| Decision Date | 26 September 1989 |
| Docket Number | 88-2049-CR,Nos. 88-1065-C,s. 88-1065-C |
| Citation | 152 Wis.2d 500,449 N.W.2d 851 |
| Court | Wisconsin Court of Appeals |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Robert C. BRAUN, Defendant-Appellant. |
Jeffrey A. Kremers, of counsel, Milwaukee, on the briefs, for plaintiff-respondent.
Richard D. Martin, of counsel, Milwaukee, on the briefs, for defendant-appellant.
Before MOSER, P.J., and SULLIVAN and FINE, JJ.
This case concerns the authority of a special prosecutor appointed under sec. 59.44(1), Stats., and the reach of a trial court's discretion to set conditions of bail when those conditions implicate First Amendment rights.
On May 10, 1986, Robert C. Braun and a number of other abortion-protestors were arrested at the Milwaukee Health Clinic on West State Street in Milwaukee. Anticipating that the police would seek to have them charged with criminal trespass to a medical facility under the then recently-adopted sec. 943.145, Stats., the Milwaukee County District Attorney's office requested the appointment of a special prosecutor under sec. 59.44(1), Stats., which permits the appointment when the district attorney "is unable to attend to his duties." 1 As expressed in the district attorney's affidavit submitted to the chief judge of the Circuit Court for District I, the district attorney had "publically expressed opposition to some law changes in years past on the issue of abortion" and believed that he would not be "able to attend to his duties as they bear upon the initial interpretation of this new statute in a manner most consistent with the broadest interpretation of Supreme Court Rule 20.48(6) (1986), and at the same time avoid 'the appearance of impropriety.' " 2 On May 12, 1986, the chief judge granted the request and entered the following order:
That Attorney Jeffrey Kremers is appointed to act as District Attorney to determine what, if any, charges should be issued against those individuals arrested at Milwaukee Health Clinic at 1124 West State Street, Milwaukee, Wisconsin, on May 10, 1986, and to prosecute such charges as may be issued.
Special Prosecutor Kremers charged Braun and two others with having committed criminal trespass to a medical facility on May 10, 1986, in violation of sec. 943.145, Stats. Braun was acquitted of the trespass charge on March 3, 1988.
Braun made his initial appearance on the trespass-to-a-medical-facility charge on May 16, 1986, and was released on a $500 personal recognizance bond. On May 21, he entered a not-guilty plea, and, as a condition of his bond, was ordered to have "no contact" with the Milwaukee Health Clinic. This condition was expanded on October 13 1986, when the trial court instructed Braun, at the special prosecutor's request, that "no contact" "means no contact, no going inside the facility, no phone calls to the facility and not to be within 500 feet of that facility." 3
On November 17, 1986, the special prosecutor signed a criminal complaint that charged Braun with bail jumping, in violation of sec. 946.49(1)(a), Stats. 4 The criminal complaint alleged that two days earlier, on November 15, the complaining officer "was right outside" the facility at 1124 West State Street and saw Braun "picketing" and, additionally, saw Braun "walk up to an area within 25 feet" of the facility.
At the trial on the bail-jumping charge, one of the police officers who arrested Braun testified that he was dispatched to 1124 West State Street on November 15, 1986, and that, when he arrived on the scene, he saw Braun talking to some television news reporters "approximately fifteen to twenty feet away from the building." The officer described what happened next:
After they took some pictures of him, he produced a sign, walked across the street from the clinic, and walked back and forth across the street on the south side of the street. He walked up to the corner of 12th Street and then walked back. He was shouting a name of the operator of the clinic, ... and flashing the sign toward the clinic.... [Then], Mr. Braun walked directly toward the clinic across State Street in a northerly direction. As he did that, I approached him. We met on the sidewalk at approximately the east corner of the building. We're still on the sidewalk, and I asked him if he was out on any type of bail.
The officer estimated that when he approached Braun, Braun was fifteen to twenty feet from the clinic. Braun was then arrested. In response to cross-examination questions asked by Braun acting pro se, the officer testified that Braun was picketing in front of the building where Planned Parenthood is located, across the street from the Milwaukee Health Clinic, and not in front of the clinic itself. The officer also testified that State Street in that vicinity was approximately fifty feet wide. He estimated that approximately five minutes had passed from the time he first saw Braun to the time of the arrest.
Braun testified that he was picketing Planned Parenthood on November 15, and that he had tried to stay "as far away from the clinic as I could." He denied he intentionally violated the condition of his bond.
Braun was convicted by a jury of bail jumping and was sentenced to a thirty-day term in the Milwaukee County House of Correction during his non-working hours under the provisions of the "Huber Law," sec. 56.08(1), Stats. 5 We reverse.
The duties and authority of the district attorney in Wisconsin are set by statute. Sec. 59.47, Stats. See also State v. Unnamed Defendant, 150 Wis.2d 352, 364, 441 N.W.2d 696, 700-701 (1989) (). 6 The role of persons appointed to temporarily perform the duties of the district attorney is similarly limited by the statute authorizing their appointment. Section 59.44(1), Stats., subjects those appointed as special prosecutor under that subsection to the terms and conditions of the order of appointment:
When ... [the district attorney] is unable to attend to his duties, ... any judge of a court of record, by an order entered in the record stating the cause therefor, may appoint some suitable person to perform, for the time being, ... the duties of such district attorney, and the person so appointed shall have all the powers of the district attorney while so acting.
Sec. 59.44(1), Stats. (emphasis added). The special prosecutor argues that the order of appointment authorized his prosecution of Braun for bail jumping because Braun was one of those arrested on May 10, 1986, and the conditions of Braun's bail were set in connection with the May 10 incident. The order of appointment, however, is more narrowly focussed. As seen, it authorized the special prosecutor "to determine what, if any, charges should be issued against those individuals arrested at Milwaukee Health Clinic at 1124 West State Street, Milwaukee, Wisconsin, on May 10, 1986, and to prosecute such charges as may be issued." In essence, the "time being" for which the special prosecutor was invested with "all the powers of the district attorney," sec. 59.44(1), Stats., was limited to the tasks specified in the order.
The order appointing the special prosecutor could have been written to encompass the powers he assumed. The affidavits executed by the district attorney and a deputy district attorney, and submitted in support of the order, reveal why it was not. 7 Those affidavits emphasized that sec. 943.145, Stats., had been recently enacted, and asserted that the order was sought because the district attorney believed that ethical constraints prevented him or his office from attending to their "duties as they bear upon the initial interpretation of this new statute." [Emphasis added.] Prosecution for bail jumping, however, does not involve "the initial interpretation" of sec. 943.145, even though the conditions of the bond were set in the underlying prosecution for the alleged violation of its provisions.
The special prosecutor was initially unsure whether he had authority to charge and prosecute Braun for bail jumping. That is why, as he explained to the trial court, he asked the deputy chief judge of the District I circuit court for guidance. In response to that inquiry, the deputy chief judge advised the special prosecutor that the bail jumping matter was within the ambit of his authority. The trial court interpreted the deputy chief judge's oral comments "as an addendum to [the special prosecutor's] appointment for the underlying trespass charge."
Section 59.44(1), Stats., requires that any order of appointment be "entered in the record." Assuming, without deciding, that such an order could be oral, if reported on the record, the special prosecutor's conversation with the deputy chief judge did not culminate in any "order," written or oral, that was "entered in the record." As it was noted by the Wisconsin Supreme Court almost a century ago, construing substantially similar language ("by an order, to be entered in the minutes"), a "communication of the circuit judge cannot take the place of an order of the court entered on its minutes." Williams v. Dodge County, 95 Wis. 604, 606, 70 N.W. 821 (1897).
In sum, the special prosecutor's order of appointment invested him with "all the powers of the district attorney" for a limited purpose--namely, the prosecution of Braun and the others under sec. 943.145, Stats., as a result of their arrest on May 10, 1986. Since the special prosecutor had no authority to venture beyond that mandate, Braun's conviction must be vacated. 8
Under ordinary circumstances, our conclusion that the special prosecutor exceeded the authority granted to him by the order of appointment would end our consideration of this case. There is, however, a...
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