State v. Cissell
| Decision Date | 01 February 1985 |
| Citation | 370 N.W.2d 293,124 Wis.2d 776 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE OF WISCONSIN, Plaintiff-Appellant, v. RONNIE D. CISSELL, Defendant-Respondent. 84-891-CR. |
| Court | Wisconsin Court of Appeals |
Appeal from an order of the circuit court for Milwaukee county: Janine P. Geske, Judge.
Before WEDEMEYER, P.J., MOSER and SULLIVAN, JJ.
The State of Wisconsin (State) appeals from an order dismissing a felony charge of abandonment, in violation of sec. 52.05(1), Stats., against Ronnie D. Cissell (Cissell) and directing that the charge be reduced to failure to support, a misdemeanor, under sec. 52.055(1), Stats. The circuit court held that the felony abandonment statute was a violation of equal protection as applied to Cissell. We hold that a conviction under the felony abandonment statute violates the equal protection provisions of art. I, sec. 1, of the Wisconsin Constitution and the fourteenth amendment of the United States Constitution in that the elements needed to support the charge are identical to those constituting the offense of failure to support under sec. 52.055(1) and there is no rational basis for the classification of those elements as a felony under sec. 52.05(1). We affirm the order dismissing the felony charge.
In March, 1979, Joyce Schulist signed a criminal complaint charging Cissell with intentionally and willfully neglecting to provide for the support and maintenance of his minor child, Toby, leaving her in destitute and necessitous circumstances, in vioalation of sec. 52.05(1), Stats. The complaint alleged that Cissell had not made payments for his child's support from 1973 through 1979 and that he was in arrears on such payments in the amount of $12,459.93.
Cissell was arrested, pursuant to warrant, on August 14, 1980. He was not bound over for trial until January, 1983, two and one-half years after his arrest. One year later, in January, 1984, Cissell filed several pretrial motions, including a motion to reduce the charge to a misdemeanor under sec. 52.055, Stats., and a motion to dismiss on the ground that sec. 52.05, Stats., was unconstitutional.
The trial court ruled in April, 1984, that sec. 52.05(1), Stats., was unconstitutional as to Cissell and ordered that the charge against him be reduced to a violation of sec. 52.055(1), Stats., a misdemeanor. The State moved for reconsideration; the trial court denied the motion. This appeal followed.
The felony abandonment statute, sec. 52.05(1), Stats. (1979-80), as it existed at the time the complaint against Cissell was issued, 1 provided as follows:
(1) Penalty. Any person who, without just cause, deserts or wilfully neglects or refuses to provide for the support and maintenance of his wife or child under 18 years (legitimate or born out of wedlock) in destitute or necessitous circumstances shall be fined not more than $500, or imprisoned not more than 2 years, or both. The parent of any child born out of wedlock who has made provision for the support of such child by giving bond, or by settlement with the proper officers in accordance with ss. 52.21 to 52.45, on which such parent is not in default, shall not be subject to this section. 2
The legislature also enacted rules of evidence applying to proof of the offense. Section 52.05(6), Stats. (1979-80), 3 provided as follows:
(6) Rules of evidence. No other or greater evidence shall be required to prove the marriage of such husband and wife, or that the defendant is the father or mother or such child or children, whether legitimate or illegitimate, than is or shall be required to prove such facts in a civil action. In no prosecution under this section shall any existing statute or rule of law prohibiting the disclosure of confidential communications between husband and wife apply, and both husband and wife shall be competent and compellable witnesses to testify against each other to any and all relevant matters, including the fact of such marriage and the parentage of such child or children, but neither shall be compelled to give evidence incriminating himself or herself. Proof of the desertion of such wife, child or children in destitute or necessitous circumstances or of neglect or refusal to provide for the support and maintenance of such wife, child or children shall be prima facie evidence that such desertion, neglect or refusal is wilful. Substantial failure by said person to provide for such support or maintenance prior to the date when complaint is made under this section shall be prima facie evidence of intent hereunder.
The misdemeanor failure to support statute, sec. 52.055(1), Stats. (1979-80), 4 as it existed at the time the complaint against Cissell was issued, provided as follows:
(1) Any parent who intentionally neglects or refuses to provide for the necessary and adequate support of his child under 18 years (legitimate or born out of wedlock), or any person who, without just cause, intentionally neglects or refuses to provide for the necessary and adequate maintenance of his wife, shall be guilty of a misdemeanor and may be fined not more than $100 or imprisoned not more than 3 months in the county jail or both. The parent of any child born out of wedlock who has made provision for the support of such child by giving bond, or by settlement with the proper officers in accordance with ss. 52.21 to 52.45, on which such parent is not in default, shall not be subject to this section. Substantial failure by said parent or person to provide for such support or maintenance for more than 21 consecutive days immediately prior to the date when complaint is made under this section shall be prima facie evidence of intent hereunder; but this provision shall not preclude a prosecution hereunder for failure to support for a lesser time. Substantial failure by said parent or person to comply with any part of a court order under ch. 767 for support of any such child under the age of 18 years or for such maintenance of his wife shall be prima facie evidence of a violation of this section for prosecution hereunder.
In ruling that sec. 52.05(1), Stats., was unconstitutional, the trial court determined that secs. 52.05(1) and 52.055(1) contained identical elements and that there was no rational basis for the classification of those elements under sec. 52.05(1) as a felony offense. On appeal the State contends the trial court erred (1) in concluding that the two offenses had identical elements and (2) in concluding that the equal protection clause was violated, even if the elements were identical.
When a statutory classification is challenged as violative of the equal protection clause, the challenger must prove beyond a reasonable doubt that the legislature made an irrational or arbitrary classification. Sambs v. City of Brookfield, 97 Wis. 2d 356, 370, 293 N.W.2d 504, 511, cert. denied, 449 U.S. 1035 (1980). Our standard of review on appeal is whether there is any reasonable basis to justify the classification. See id.; see also State v. Asfoor, 75 Wis. 2d 411, 440, 249 N.W.2d 529, 542 (1977).
We turn first to the question whether secs. 52.05(1) and 52.055(1), Stats., contain identical elements. The State contends that the elements of felony abandonment differ from the misdemeanor crime of failure to support in at least two respects: (1) the felony offense requires the state to show willful neglect, while the misdemeanor needs only a showing of intentional neglect and (2) the felony offense contains an element not contained in the misdemeanor--namely, the element of 'destitute or necessitous circumstances.'
With regard to the necessity of proving 'destitute or necessitous circumstances' under sec. 52.05(1), Stats., the trial court ruled that that element had been effectively nullified by the supreme court's treatment of it in State v. Freiberg, 35 Wis. 2d 480, 151 N.W.2d 1 (1967). In that case the supreme court upheld a conviction under sec. 52.05, where the defendant's ex-wife had secured a job and was supporting the children. The defendant claimed that the children were not in 'destitute or necessitous circumstances.' The supreme court ruled that, as a policy matter, 'destitute or necessitous' must be read liberally:
This court has construed the main purpose of our non-support statute to be to force husbands or parents to assume their duty to support their families and, to promote this construction, has adopted a liberal reading of 'destitute or necessitous.' The fact that the father's default did not precipitate his children's immediate descent to 'the lowest scale of mere human existence' . . . or require them to seek public welfare or private charity should not furnish a defense for him. Punishment for wilful failure to support one's own children should not be stayed by the fortuitous existence of public or private charity or by a divorced spouse's industry in providing some measure of the child support that might have been expected from the defaulting father. The fact remains that, as of the instant of the husband's desertion of his duty, but for the wife's and children's income, this family most assuredly would have been 'destitute or necessitous.' A father has a duty to support his family and is not relieved of that duty by the fact that others assume it for him. Willfully abandoning this duty and forcing others to assume it is made criminal by the statutes.
Id. at 486, 151 N.W.2d at 4 (citation omitted).
Under Freiberg's liberal construction of the language, 'destitute or necessitous circumstances,' no greater need must be established on the part of the family under sec. 52.05(1), Stats., than is required to be established under sec. 52.055(1), Stats. The latter statute refers to a...
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