State v. Hammad

• Decision Date: 15 July 1997
• Docket Number: No. 95-2669,95-2669
• Citation: 569 N.W.2d 68,212 Wis.2d 343
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Eyad H. HAMMAD, Defendant-Appellant, One 1986 BMW 2-Door, Vehicle Identification Number WBAAB5401C9691032, Defendant-(In T.ct.).
• Court: Wisconsin Court of Appeals

Page 68

569 N.W.2d 68

212 Wis.2d 343

STATE of Wisconsin, Plaintiff-Respondent, v. Eyad H. HAMMAD, Defendant-Appellant,

One 1986 BMW 2-Door, Vehicle Identification Number

WBAAB5401C9691032, Defendant-(In T.ct.).

No. 95-2669.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 4, 1997.

Opinion Released July 15, 1997.

Opinion Filed July 15, 1997.

On behalf of the defendant-appellant, the cause was submitted on the brief of Andrew M. Spheeris of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Maureen McGlynn Flanagan, Assistant Attorney General.

Before WEDEMEYER, P.J., and FINE and CURLEY, JJ.

CURLEY, Judge.

Eyad H. Hammad appeals from a civil forfeiture order confiscating his automobile and from an order denying his motion for reconsideration. Hammad argues that the forfeiture action violated the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. Although Hammad is correct that the forfeiture of his vehicle implicates the protections guaranteed by the Eighth Amendment's Excessive Fines Clause, we conclude that, after applying the test set forth in State v. Seraphine, 266 Wis. 118, 62 N.W.2d 403 (1954), the civil forfeiture in this case did not violate the Eighth Amendment. Accordingly, we affirm both orders.

I.

The State of Wisconsin brought a statutory civil forfeiture action, see § 973.075, STATS., et seq., claiming that a vehicle owned by Hammad was used to transport property received in the commission of a felony. The action was commenced on May 22, 1995, although the vehicle had been seized earlier on April 28, 1995, following Hammad's arrest involving the receipt of stolen property. See §§ 943.34 & 939.32, STATS.

The forfeiture in this case evolved out of a "sting" operation conducted by the City of Milwaukee Police Department. A police officer, posing as an employee of a department store, approached Hammad claiming to possess items stolen from his employer that he wished to sell. The police officer later testified that Hammad agreed to purchase six VCRs, two combination TV/VCRs, and a large quantity of aspirin, all of which Hammad thought were stolen from the department store. The items had a wholesale value of approximately $2,005. Hammad purchased them for $175.

During the delivery of the "stolen" items to Hammad's workplace, Hammad asked the police officer to help him move the items. At one point, Hammad asked the officer to load six VCRs into the trunk of Hammad's car--a 1986 BMW that is the subject of the forfeiture action in this case. The officer complied. Although Hammad later denied asking the officer to put the items in his car, and claimed at the forfeiture hearing that it was the officer's idea to place several of the stolen items in the car's trunk, the trial court found that the officer's testimony was more credible than Hammad's. The trial court granted the State's demand for forfeiture of the car, finding that the vehicle had been used to transport property received in the commission of a felony. Hammad later brought a motion for reconsideration that the trial court denied. ¹

II.

Whether the civil forfeiture of Hammad's car under § 973.075(1)(b), STATS., violated the Excessive Fines Clause of the Eighth Amendment to the United States Constitution, presents an issue that we review de novo. ² See City of Milwaukee v. Kilgore, 193 Wis.2d 168, 183, 532 N.W.2d 690, 695 (1995). The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII. As we recently noted, "[a]lthough the United States Supreme Court has never held that the Excessive Fines Clause applies to the States through the Fourteenth Amendment, we assume that it does." City of Milwaukee v. Arrieh, 211 Wis.2d 762, 565 N.W.2d 291, 294 (Ct.App.1997) (citations omitted). ³

"A person claiming to be aggrieved by the application of a statute to his particular circumstances is entitled to challenge the constitutional foundation of that statute in our courts." Chicago & N.W. Ry. Co. v. La Follette, 27 Wis.2d 505, 520, 135 N.W.2d 269, 278 (1965). We begin, however, with the presumption that the statute is constitutional and we will uphold the statute unless it is proven unconstitutional beyond a reasonable doubt. See Libertarian Party of Wisconsin v. State, 199 Wis.2d 790, 801, 546 N.W.2d 424, 430 (1996). Further, " '[e]very presumption must be indulged to sustain the law if at all possible.' " State v. McManus, 152 Wis.2d 113, 129, 447 N.W.2d 654, 660 (1989).

Moreover, our Supreme Court, in addressing challenges to the constitutionality of legislatively-authorized fines, has long cautioned:

"The courts are reluctant to say that the legislature has exceeded its power in authorizing excessive fines, and as a general rule will not do so except in a very clear case; and, therefore, the widest latitude should be given to the discretion and judgment of the legislature in determining the amount necessary to accomplish the object and purpose it has in view."

Seraphine, 266 Wis. at 121, 62 N.W.2d at 405 (citation omitted). Given these standards in effect for constitutional challenges, Hammad bears a heavy burden in showing that the application of § 973.075(1)(b), STATS., violates his constitutional rights.

Prior to Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), "[g]iven that the [Eighth] Amendment [wa]s addressed to bails, fines, and punishments," Supreme Court case law had "long ... understood it to apply primarily ... to criminal prosecutions and punishments." Browning-Ferris Industries v. Kelco Disposal Inc., 492 U.S. 257, 262, 109 S.Ct. 2909, 2913, 106 L.Ed.2d 219, 230 (1989). The history of the Eighth Amendment convinced the Court that "the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government." Id. at 266-69, 109 S.Ct. at 2915-16, 106 L.Ed.2d at 232-34 (discussing history of Eighth Amendment as it was derived from the Virginia Declaration of Rights and the English Bill of Rights of 1689).

In Austin, however, the Supreme Court enlarged the reach of the Excessive Fines Clause to include civil forfeiture actions, if the forfeiture law sought "to extract payments, whether in cash or in kind, 'as punishment for some offense.' " ⁴ Austin, 509 U.S. at 609-10, 113 S.Ct. at 2805, 125 L.Ed.2d at 497 (citation omitted). The Court remarked that " '[t]he notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law.' " Id. at 610, 113 S.Ct. at 2805, 125 L.Ed.2d at 497 (citation omitted). Thus, the Court stated that the proper question in deciding whether the Excessive Fines Clause applied to the federal forfeiture statute, was not whether it was based in civil or criminal law, "but rather whether it [wa]s punishment." Id. at 610, 113 S.Ct. at 2806, 125 L.Ed.2d at 498. Accordingly, as relevant to this case, the Supreme Court has expanded the breadth of the Excessive Fines Clause to include civil forfeiture actions that are commenced by a government and that are, in whole or in part, driven by a desire to punish a person. Id. at 610-11, 622, 113 S.Ct. at 2806, 2812, 125 L.Ed.2d at 498, 505-06. Further, the Court set forth a two-part test in Austin to determine whether a forfeiture violated the Excessive Fines Clause--the first part requires that we determine whether the forfeiture can be considered a punishment, the second part requires that we determine whether the "forfeiture is constitutionally 'excessive.' " Id. at 622-23, 113 S.Ct. at 2812, 125 L.Ed.2d at 506. We address both parts of this test to resolve the issue raised by Hammad in this case.

Under § 973.075(1)(b), STATS., a vehicle is subject to governmental seizure and forfeiture if it is "used to transport any property or weapon used or to be used or received in the commission of any felony." The State concedes that a forfeiture under § 973.075(1)(b), cannot be distinguished from a forfeiture under the federal statute that the Supreme Court in Austin concluded was a punishment subject to the limitations of the Excessive Fines Clause. ⁵ We agree. A forfeiture of a vehicle "used to transport any property or weapon used or to be used or received in the commission of any felony," clearly has a punitive purpose because the legislature "has chosen to tie forfeiture directly to the commission of [felony] offenses." Austin, 509 U.S. at 620, 113 S.Ct. at 2811, 125 L.Ed.2d at 504.

Because we conclude that the forfeiture in this case unders 973.075(1)(b) falls within the protections of the Excessive Fines Clause of the Eighth Amendment, we next turn to the second prong of the Austin analysis--that is, whether the forfeiture in this case is "excessive" within the meaning of the Eighth Amendment. Hammad attempts to short-circuit this part of the Austin test and argues that if the forfeiture is punitive it is automatically "excessive" under the Eighth Amendment. Hammad's argument is not supported by the holding in Austin.

Rather, the majority opinion in Austin, while resolving the question of whether the Excessive Fines Clause applied to civil forfeiture actions, left open the question of the correct analysis for determining excessiveness under the Eighth Amendment. See Austin, 509 U.S. at 622-23, 113 S.Ct. at 2812, 125 L.Ed.2d at 506. The Austin majority concluded that "[p]rudence dictates that we allow the lower courts to consider that question in the first instance." Id.

As a result, this is an issue of first impression in Wisconsin and we must search for an appropriate test to determine whether the forfeiture of Hammad's automobile was "excessive" under the Eighth Amendment. The State presents three tests that have emerged in the lower courts since the release of Austin.

A.

In his concurrence to the majority...