State v. Gonzales

• Decision Date: 13 June 2002
• Docket Number: No. 01-0224-CR.,01-0224-CR.
• Citation: 645 N.W.2d 264,253 Wis.2d 134,2002 WI 59
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Adam S. GONZALES, Defendant-Appellant.
• Court: Wisconsin Supreme Court

253 Wis.2d 134

645 N.W.2d 264

2002 WI 59

STATE of Wisconsin, Plaintiff-Respondent, v. Adam S. GONZALES, Defendant-Appellant.

No. 01-0224-CR.

Supreme Court of Wisconsin.

Oral argument April 16, 2002.

Decided June 13, 2002.

For the defendant-appellant there were briefs and oral argument by Suzanne L. Hagopian, assistant state public defender.

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. An amicus curiae brief was filed by Michael Patrick Murray, South Riding, Virginia, and Robert Dowlut, Fairfax, Virginia, on behalf of the National Rifle Association of America.

¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This case comes before this court on certification by the court of appeals pursuant to Wis. Stat. (Rule) § 809.61 (1999-2000).¹ The Circuit Court for Kenosha County, Michael S. Fisher, Judge, entered a judgment of conviction and an order denying the post-conviction motion of Adam S. Gonzales, the defendant. The defendant sought to vacate his conviction for going armed with a concealed and dangerous weapon in violation of Wis. Stat. § 941.23. The defendant's sole ground for challenging his conviction was that § 941.23 is unconstitutional. He asserts that § 941.23 is incompatible with Article I, Section 25 of the Wisconsin Constitution, which creates a right to keep and bear arms. The circuit court rejected the defendant's argument.

[1]

¶ 2. We do not address whether Wis. Stat. § 941.23 is rendered unconstitutional by Article I, Section 25. We conclude that Article I, Section 25 was not in effect on the day on which the defendant violated § 941.23. Accordingly, we further conclude that the defendant's sole defense to his conviction, namely, the unconstitutionality of § 941.23, fails. We therefore affirm the judgment of conviction and the order of the circuit court.

I

¶ 3. Following a jury trial, the defendant was convicted of disorderly conduct in violation of Wis. Stat. § 947.01 and carrying a concealed weapon in violation of § 941.23. Section 941.23 provides: "Any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor." The circuit court then sentenced the defendant as a repeater to thirty months for the disorderly conduct charge and twenty-four months for the concealed weapon charge, the sentences to be served consecutively.

¶ 4. For the purposes of this appeal, the facts are not in dispute. On November 6, 1998, the defendant, Adam Gonzales, created a disturbance at the apartment building in which he lived, and he was arrested. The arresting officer patted down the defendant and found a gun magazine in the defendant's pants pocket and found a gun in the pocket of a black leather jacket that the defendant had been wearing during the disturbance.

¶ 5. The defendant filed a post-conviction motion, seeking to vacate his conviction for carrying a concealed weapon. He argued that Wis. Stat. § 941.23, Wisconsin's concealed weapon law, was unconstitutional on its face and unconstitutional as applied to him as a result of the adoption of Article I, Section 25 of the Wisconsin Constitution. Article I, Section 25 provides in its entirety as follows: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

¶ 6. The circuit court denied the post-conviction motion. The defendant appealed the order, and the court of appeals certified to this court the question of whether the prohibition against going armed with a concealed and dangerous weapon as set forth in § 941.23 is unconstitutional in light of Article I, Section 25. This court granted the certification.

II

¶ 7. During oral argument in the present case, the question arose whether Article I, Section 25 was in effect on November 6, 1998, when the defendant committed the offense of going armed with a concealed and dangerous weapon in violation of Wis. Stat. § 941.23. The constitutional amendment was on the ballot in the general election on November 3, 1998, and was ratified that day by 74 percent of the vote cast.

¶ 8. On November 30, 1998, pursuant to Wis. Stat. § 7.70(3)(h), the chairperson of the State Elections Board determined and certified that the proposed constitutional amendment was approved by a majority of the electors voting thereon.

¶ 9. The court ordered supplemental briefs to address two issues: (1) when did the 1998 constitutional amendment adopting Article I, Section 25 become effective, and (2) in making that decision, what is the importance of Wis. Stat. § 7.70(3)(h), which describes the effective date of a constitutional amendment?

¶ 10. The present case poses questions involving interpretation of the state constitution and a state statute. These are questions of law that this court determines independent of the circuit court but benefiting from its analysis.

III

[2]

¶ 11. We first examine Article I, Section 25. This constitutional amendment states in its entirety:

The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.

The legislative records regarding Article I, Section 25 are silent about its effective date.

¶ 12. Article XII, Section 1 of the Wisconsin Constitution, governing the adoption of constitutional amendments, is silent about the effective date of a constitutional amendment. Article XII, Section 1 merely states in pertinent part that if the people ratify an amendment, it shall become part of the constitution:

[I]f the people shall approve and ratify such amendment ... by a majority of the electors voting thereon, such amendment ... shall become part of the constitution.

¶ 13. Wisconsin Stat. § 7.70(3)(h) sets forth the effective date of a constitutional amendment as the "time the chairperson of the [State Elections Board] or the chairperson's designee certifies that the amendment . . . is approved."² Section 7.70(3)(a) provides that the chairperson of the State Elections Board shall publicly canvass the returns and make his or her certifications and determinations on or before the first day of December following a general election.³

¶ 14. Although statewide canvassing relating to constitutional amendments has existed since statehood,⁴ the language in Wis. Stat. § 7.70(3)(h) governing the effective date of a constitutional amendment was not adopted until 1955.⁵ The drafting file of § 7.70(3)(h) does not explain the reason for the adoption of this provision.⁶

¶ 15. The State argues that pursuant to Wis. Stat. § 7.70(3)(h), Article I, Section 25 became effective when the chairperson canvassed and certified the election on November 30, 1998. The State reasons that § 7.70(3)(h) is a valid statute that provides an effective date for constitutional amendments that do not expressly state the date of effectiveness.

¶ 16. In contrast, the defendant argues that the Wisconsin Constitution does not grant the legislature authority to enact Wis. Stat. § 7.70(3)(h) and to delay the effectiveness of a constitutional amendment when a proposed amendment is silent about its effective date. The defendant interprets Article XII, Section 1 of the Wisconsin Constitution to mean that a constitutional amendment becomes effective when a majority of the electors adopts the amendment. According to the defendant, the vote of the electors is the last necessary act to make a constitutional amendment effective.

¶ 17. Records of the Wisconsin constitutional conventions in 1846 and 1847-48 reflect little debate about the procedure for amending the constitution and are not helpful in determining the effective date of a constitutional amendment.

¶ 18. The parties rely on Wisconsin cases to support their respective positions, but no case directly decides the issue presented here. In The Attorney General ex rel. Bashford v. Barstow, 4 Wis. 567 (1855), two gubernatorial candidates asserted a right to the office of governor. One candidate asserted his right based on having received the "highest number of votes" in the general election as provided in Article V, Section 3 of the Wisconsin Constitution.⁷ The other candidate asserted his right based on having been issued a certificate as the winner by the board of canvassers. This court held that the right to office is based on the highest number of votes cast by the electors, not the certification by the board of canvassers. The court reasoned that the board of canvassers possessed a strictly ministerial⁸ duty created by the legislature, which may not supersede the state constitution's dictate that an election is determined by the candidate receiving the most votes.⁹

¶ 19. Although Barstow established that the vote of the electors determines the right to an office, Barstow does not answer the question of when that right becomes effective and thus does not answer the question before the court in the present case.

¶ 20. In State ex rel. Hudd v. Timme, 54 Wis. 318, 326-32, 11 N.W. 785 (1882), this court held that a state constitutional amendment creating a biennial legislature was not effective immediately upon adoption because, as a practical matter, the amendment could not be effective until new legislative elections occurred. The Hudd court did not address the question posed in the present case regarding when a constitutional amendment that requires no subsequent implementing action takes effect.

¶ 21. The issue of the effective date of a constitutional amendment arose in 1955. The joint resolution proposing a constitutional amendment stated that the amendment was to become effective on May 1, 1955. The text of the proposed amendment that appeared before the electors at the election failed, however, to include the delayed effective date of May 1, 1955.

¶ 22. The electors ratified the proposed amendment on April 5, 1955. The board of canvassers certified the results of the election on April...