State v. Dreske
| Decision Date | 29 January 1979 |
| Docket Number | No. 77-453-CR,77-453-CR |
| Citation | 276 N.W.2d 324,88 Wis.2d 60 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. George R. DRESKE, Defendant-Appellant. Donald DRESKE, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. |
| Court | Wisconsin Court of Appeals |
James M. Shellow of Shellow & Shellow, Milwaukee, Randall J. Sandfort and William M. Coffey, Milwaukee, on brief, for George Dreske and Donald Dreske.
Dennis M. Coffey, Milwaukee, argued, for Donald Dreske.
Coffey & Coffey, Milwaukee, argued and on brief, for Donald Dreske and on brief, for George Dreske.
William L. Gansner, Asst. Atty. Gen., Bronson C. La Follette, Atty. Gen., on brief, for plaintiff-respondent and defendant-in-error.
Before DECKER, C. J., CANNON, P. J. and ROBERT W. HANSEN, Reserve Judge.
Defendant-appellant's convictions are the first criminal convictions attained under the new Wisconsin Campaign Financing Act (CFA), enacted in ch. 334, Laws of 1973. The appellant challenges the constitutionality of the penalty sections of the CFA, and contends that various parts of the Act were improperly applied by both the trial judge and the District Attorney's office.
This case is related to the unsuccessful attempt by State Senator James C. Devitt to secure the Republican nomination for Governor of Wisconsin in 1974. See State v. Devitt, 82 Wis.2d 262, 262 N.W.2d 73 (1978). The defendant-appellant, George Dreske, is the father of the defendant-appellant, Donald Dreske. On July 23, 1976, the Dreskes were charged by criminal complaint with numerous violations of the CFA, in particular secs. 11.24(1) and 11.61(1)(a), Stats.
An information was filed by the District Attorney at the preliminary hearing, held August 7, 1976. The information charged both defendants with what is commonly known as "laundering" campaign contributions to disguise the actual supplier of the funds. 1 Eight such counts were charged against George Dreske. Five counts were charged against Donald Dreske. The charges against George and Donald Dreske, although brought under the same statute, arose out of separate and distinct incidents. The defendants were not charged jointly with any one offense, although they were charged as parties to a crime.
The case was tried beginning March 23, 1977. On March 31, 1977, the jury returned verdicts finding George Dreske guilty as charged on all eight counts of the information. Donald was found guilty as charged on four counts of the information, but acquitted on one count. George Dreske was fined $2,000 on each of the first five counts of the information, and placed on probation for three years on each count, the terms of probation to run concurrent. The first year of probation for count 1 was to be spent during non-working hours in the county jail, in accordance with sec. 973.09(4), Stats. Donald Dreske was fined $250 on each count.
George Dreske appeals his conviction, and Donald Dreske brings writs of error. Six issues are raised by one or both defendants:
1. Does the penalty scheme of secs. 11.60 and 11.61, Stats., as it pertains to 11.24(1), Stats., violate due process and equal protection?
2. Did the trial court incorrectly instruct the jury on the issue of intent?
3. Do the charges against George Dreske improperly fractionate single offenses in violation of the double jeopardy clauses of the state and federal constitutions?
4. Did the joinder of George and Donald Dreske's trials deny George Dreske the right to a fair trial on count 8 of the information?
5. Was sufficient evidence adduced to find George Dreske guilty of counts 6 and 7?
6. Was sufficient evidence adduced to find Donald Dreske guilty of counts 9, 10 and 11?
The defendants were convicted on each count of violating secs. 11.24(1) and 11.61(1)(a), Stats. Section 11.24(1) contains three sentences, each of which prohibits certain activity. The defendants were prosecuted on each count for violating the second sentence, which provides: "No person may Section 11.24 contains no penalty provision. The penalty provisions for the Campaign Financing Act are contained in secs. 11.60 and 11.61, Stats. Section 11.60(1) provides:
directly or indirectly, furnish funds or property to another person for the purpose of making a contribution in other than his own name."
Section 11.61(1)(a) provides:
The defendants contend that although sec. 11.60 is labeled civil, its penalty scheme, at least as applied to the second sentence of 11.24(1), is actually criminal. Since due process and equal protection are violated when the same act may be punished under more than one criminal penalty section, State v. Roggensack, 15 Wis.2d 625, 113 N.W.2d 389, 114 N.W.2d 459 (1962), the defendants conclude the penalty scheme of the Campaign Financing Act is a violation of due process and equal protection.
A statute is presumed constitutional. Wisconsin Solid Waste Recycling Authority v. Earl, 70 Wis.2d 464, 478, 235 N.W.2d 648 (1975). The party challenging the constitutionality of a statute has the burden of establishing its unconstitutionality beyond a reasonable doubt. State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis.2d 32, 205 N.W.2d 784 (1973). Thus the defendant has a heavy burden to prove to this court that the penalty scheme encompassed in secs. 11.60 and 11.61 is unconstitutional. We hold this burden of persuasion was not met.
It is clear that the legislature intended sec. 11.60 to be a civil penalty section, and sec. 11.61 to be criminal. Section 11.60 is labeled "Civil Penalties"; 11.61 is labeled "Criminal Penalties." The legislature of this state has defined "crime" as: Sec. 939.12 (Emphasis supplied.) The penalty in sec. 11.60 involves a $500 forfeiture, while sec. 11.61 involves what has been labeled a fine. While labels cannot always be taken for face value, the label and penalty provisions in the CFA are quite instructive in our analysis of whether sec. 11.60 is a civil or criminal section.
In addition, the legislative history of the Campaign Financing Act illustrates the legislature intended to provide both civil and criminal penalty sections for violations of the act. Assembly Amendment 2 to Senate Bill 5 provided for one section having misdemeanor and felony divisions. The eventual Engrossed Senate Bill 5 separated civil and criminal penalties into secs. 11.60 and 11.61, and labeled them appropriately. This was the form of the bill as eventually passed by the legislature.
The separate penalty sections in the Campaign Financing Act manifest a legislative intention to separate the less serious or "negligent" violations of the Act from the more serious "intentional" violations. The legislative history, and a plain reading of the statutes, convinces this court that sec. 11.60 is a civil penalty. As such, there are not two criminal penalty sections applicable to the same action. The defendants concede there is no constitutional violation in a penalty scheme which subjects the same act to both a civil and a criminal penalty.
The defendants, however, contend that sec. 11.60 is in effect a criminal statute as applied to the particular sentence of 11.24(1), under which they were convicted. Section 11.24(1) contains three prohibitions:
1. No person may, directly or indirectly, make any contribution other than from funds or property belonging to the contributor.
2. No person may, directly or indirectly furnish funds or property to another person, For the purpose of making a contribution in other than his own name. (Emphasis supplied.)
3. No person may intentionally accept or receive any contribution made in violation of this subsection.
The defendants were convicted of violating the sentence we have numbered 2. The "for the purpose of" language in number 2 cannot be distinguished from an "intent" requirement. The defendants argue, and the state concedes, that one cannot unintentionally violate the second sentence of sec. 11.24. The defendants conclude from this, that as applied to the second sentence of sec. 11.24, sec. 11.60 is in fact a criminal statute. Relying on Roggensack, supra, the defendants contend that two criminal penalty statutes involving different penalties for violations of the same act violate due process and equal protection.
We agree that an anomaly exists in using sec. 11.60 to punish violations of the second sentence of sec. 11.24, while at the same time contending that sec. 11.60 differs from sec. 11.61 in that sec. 11.60 violations do not require intent. Admitting the anomaly, however, sec. 11.60 is still a civil statute. The fact that in certain situations a violation of sec. 11.60 will involve intent does not make sec. 11.60 a criminal statute. Section 11.60, as we have noted, was intended by the legislature to be civil, and a plain reading of the statute indicates it is civil in nature. The defendants have not shown beyond a reasonable doubt that the penalty scheme embodied in sec. 11.60 is criminal. We conclude that since sec. 11.60 is a civil penalty section, the penalty sections of the CFA are constitutional as they apply to this action. 2
The Dreskes were convicted under sec. 11.61(1)(a), Stats., which provides that "(W)hoever intentionally violates . . . (sec.) 11.24(1)"...
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