State v. Cole

• Court: United States State Supreme Court of Wisconsin
• Citation: 264 Wis.2d 520,2003 WI 112,665 N.W.2d 328
• Docket Number: No. 01-0350-CR.,01-0350-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Phillip COLE, Defendant-Appellant.
• Decision Date: 15 July 2003

264 Wis.2d 520
2003 WI 112
665 N.W.2d 328

STATE of Wisconsin, Plaintiff-Respondent,
v.
Phillip COLE, Defendant-Appellant

No. 01-0350-CR.

Supreme Court of Wisconsin.

Oral argument November 14, 2002.

Decided July 15, 2003.

264 Wis.2d 524

For the defendant-appellant there were briefs and oral argument by Michael K. Gould, assistant state public defender

264 Wis.2d 525

For the plaintiff-respondent the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the brief was James E. Doyle, attorney general

¶ 1. JON P. WILCOX, J.

This case involves a constitutional challenge to Wis. Stat. § 941.23 (1999-2000),¹ the state law prohibition against carrying a concealed weapon. The challenge is brought by Phillip Cole, who was convicted under § 941.23 after police found two concealed weapons within the vehicle in which Cole was riding. Cole challenges the constitutionality of the concealed weapons statute in light of Article I, Section 25 of the Wisconsin Constitution, which guarantees citizens' state constitutional right to bear arms. He claims that the statute is unconstitutional on its face and as applied to him.

¶ 2. Before trial, Cole pled guilty to the concealed weapons charge and a drug charge. After he was sentenced, Cole filed a motion to vacate the concealed weapons conviction on the basis that Wis. Stat. § 941.23 violates Article I, Section 25 of the Wisconsin Constitution. The postconviction motion was denied. Cole appealed and the court of appeals certified the matter to this court. We accepted certification, and we now uphold the decision of the circuit court.

I

¶ 3. The facts of this case are not in dispute. On the evening of November 6, 1999, Milwaukee police officers pulled over a vehicle driven by Minko Lewis for an expired registration and a defective brake lamp. Phillip Cole, the defendant in this case, was a passenger

264 Wis.2d 526

in the vehicle. As one of the officers approached the vehicle, he saw Cole conceal an item in the glove compartment. Police searched Cole and the vehicle. Officers found marijuana in Cole's left breast pocket. Police also found a loaded .380 caliber pistol in the glove compartment of the vehicle and a loaded .45 caliber semi-automatic pistol beneath the driver's seat. Cole told police that the marijuana was for personal use and that he carried the .380 in the glove compartment for protection

¶ 4. On May 12, 2000, Cole pled guilty to charges of carrying a concealed weapon (CCW) in violation of Wis. Stat. § 941.23 and possession of tetrahydrocannabinols (marijuana) in violation of Wis. Stat. § 961.41(3g)(e).² The Milwaukee County Circuit Court, the Honorable Maxine A. White, presiding, sentenced Cole to 60 days on the CCW charge and 15 days (concurrent) on the possession charge with Huber privileges.

¶ 5. On September 29, 2000, Cole filed a motion to vacate his conviction on the concealed weapons charge, alleging that the CCW statute is an unconstitutional infringement of his constitutional right to bear arms. The state constitutional right to bear arms is found in Article I, Section 25 of the Wisconsin Constitution and provides as follows: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." Wis. Const. art. I, § 25. Section 941.23 of the Wisconsin Statutes, which Cole claims violates that provision, states: "Any person

264 Wis.2d 527

except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor."

¶ 6. The Milwaukee County Circuit Court, the Honorable Charles F. Kahn, Jr., presiding, denied the postconviction motion, finding the statute to be constitutional. Cole appealed and on October 23, 2001, the court of appeals certified the matter to this court. This court then accepted certification on November 27, 2001.

¶ 7. This case was originally scheduled to be decided as a companion case to State v. Gonzales, 2002 WI 59, 253 Wis. 2d 134, 645 N.W.2d 264. After oral argument in Gonzales, this court decided Gonzales on alternative grounds, finding that Gonzales' challenge to Article I, Section 25 of the Wisconsin Constitution failed because the amendment was not in effect on the day the defendant violated Wis. Stat. § 941.23. In an order dated June 13, 2002, this court then determined that State v. Cole would be held and heard with State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785.

II

¶ 8. The Wisconsin Legislature first passed a concealed weapons law in 1872. § 1, ch. 7, Laws of 1872; see also State v. Dundon, 226 Wis. 2d 654, 671, 594 N.W.2d 780 (1999). As noted in Dundon, the original statute contained several exceptions to the prohibition that were then repealed in 1878.³ Dundon, 226 Wis. 2d at

264 Wis.2d 528

671-72. Since 1878, the CCW statute has remained substantively the same, including only an exception for peace officers.⁴ Id. at 672.

¶ 9. Article I, Section 25 of the Wisconsin Constitution was adopted by the citizens of this state in November 1998. Jeffrey Monks, Comment, The End of Gun Control or Protection Against Tyranny?: The Impact of the New Wisconsin Constitutional Right to Bear Arms on State Gun Control Laws, 2001 Wis. L. Rev. 249, 250. It became effective on November 30, 1998. See Gonzales, 253 Wis. 2d 134, ¶¶ 8-9, 15, 29-30. The amendment was approved by a wide margin in the state

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legislature both times it arose for consideration.⁵ Bulletin of the Proceedings of the Wisconsin Legislature, 1995-96 Assemb. Sess., at 394-95; Bulletin of the Proceedings of the Wisconsin Legislature, 1997-98 Assemb. Sess., at 316-17; Monks, The End of Gun Control, 2001 Wis. L. Rev. at 250 n.10. When put before the voters, the amendment passed with 74% voting in favor of the amendment. Monks, The End of Gun Control, 2001 Wis. L. Rev. at 250 n.10. That is not to say, however, that this amendment passed into law without notice. In fact, some controversy surrounded the proposed measure and its implications. See, e.g., Monks, The End of Gun Control, 2001 Wis. L. Rev. 249 (citing numerous news articles and editorials with a variety of positions on the proposed amendment); Christopher R. McFadden, The Wisconsin Bear Arms Amendment and the Case Against an Absolute Prohibition on Carrying Concealed Weapons, 19 N. Ill. U. L. Rev. 709 (1999).

III

[1-3]

¶ 10. We first address the standards of review applicable in this case. The constitutionality of a statute presents a question of law that this court reviews de

264 Wis.2d 530

novo, without deference to the decisions of the circuit court or the court of appeals.⁶ Aicher v. Wis. Patients Comp. Fund, 2000 WI 98, ¶ 18, 237 Wis. 2d 99, 613 N.W.2d 849; State v. Post, 197 Wis. 2d 279, 301, 541 N.W.2d 115 (1995); Szarzynski v. YMCA, Camp Minikani, 184 Wis. 2d 875, 883-84, 517 N.W.2d 135 (1994); State v. Fisher, 211 Wis. 2d 665, 669, 565 N.W.2d 565 (Ct. App. 1997); Prof. Guardianships, Inc. v. Ruth E.J., 196 Wis. 2d 794, 801, 540 N.W.2d 213 (Ct. App. 1995). This case requires us to interpret the constitutional amendment, seeking an indication of the framers' intentions. As we have noted:

The purpose of construction of a constitutional amendment is to give effect to the intent of the framers and of the people who adopted it; and it is a rule of construction applicable to all constitutions that they are to be construed so as to promote the objects for which they were framed and adopted.

Kayden Indus., Inc. v. Murphy, 34 Wis. 2d 718, 729-30, 150 N.W.2d 447 (1967) (quoting Ekern v. Zimmerman, 187 Wis. 180, 184, 204 N.W. 803 (1925)) (internal citations and quotations omitted). For these purposes, this court has established that we should utilize three sources to determine a provision's meaning:

the plain meaning of the words in the context used; the constitutional debates and the practices in existence at the time of the writing of the constitution; and the earliest interpretation of the provision by the legislature as manifested in the first law passed following adoption.

264 Wis.2d 531

Thompson v. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d 123 (1996) (citations omitted).

[4-6]

¶ 11. Generally, legislative enactments are entitled to a presumption of constitutionality. Aicher, 237 Wis. 2d 99, ¶ 18; Thompson, 199 Wis. 2d at 680; Davis v. Grover, 166 Wis. 2d 501, 520, 480 N.W.2d 460 (1992); State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 46, 205 N.W.2d 784 (1973) ("This court has often affirmed the well-established presumption of constitutionality that attaches itself to all legislative acts."); Ruth E.J., 196 Wis. 2d at 801. This court has repeatedly held that it "indulges every presumption to sustain the law if at all possible, and if any doubt exists about a statute's constitutionality, we must resolve that doubt in favor of constitutionality." Aicher, 237 Wis. 2d 99, ¶ 18 (internal citation omitted); see also Post, 197 Wis. 2d at 301. A petitioner seeking to prove a statute unconstitutional faces a heavy burden. State v. Interstate Blood Bank, Inc., 65 Wis. 2d 482, 488-89, 222 N.W.2d 912 (1974). In the face of a strong presumption, it falls to the party challenging the constitutionality of a statute to prove that the statute is unconstitutional beyond a reasonable doubt. Aicher, 237 Wis. 2d 99, ¶ 19; Brandmiller v. Arreola, 199 Wis. 2d 528, 536, 544 N.W.2d 894 (1996); Thompson, 199 Wis. 2d at 680; Fisher, 211 Wis. 2d at 669. This court has noted: "It is insufficient to merely establish doubt as to an act's constitutionality nor is it sufficient to establish the act is probably constitutional." Quinn v. Town of Dodgeville, 122 Wis. 2d 570, 577, 364 N.W.2d 149 (1985). If any doubt remains, this court must uphold the statute as constitutional. Id.

264 Wis.2d 532

[7, 8]

¶ 12. Cole argues that the presumption of constitutionality is inapplicable in this case because the CCW statute predates the constitutional amendment. We disagree. The purpose...