State v. Hershberger

• Decision Date: 17 July 2014
• Docket Number: No. 2013AP1502–CR.,2013AP1502–CR.
• Citation: 356 Wis.2d 220,853 N.W.2d 586
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Vernon D. HERSHBERGER, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

356 Wis.2d 220

853 N.W.2d 586

STATE of Wisconsin, Plaintiff–Respondent

v.Vernon D. HERSHBERGER, Defendant–Appellant.^†

No. 2013AP1502–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs April 14, 2014.

Opinion Filed July 17, 2014.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Elizabeth Gamsky Rich of Elizabeth Gamsky Rich & Associates, S.C., Plymouth, Glenn C. Reynolds of Reynolds & Associates, Madison, and Amy Salberg of Salberg Law LLC, West Bend.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Thomas J. Balistreri, assistant attorney general, and J.B. Van Hollen, attorney general.

Before BLANCHARD, P.J., SHERMAN and KLOPPENBURG, JJ.

Opinion

KLOPPENBURG, J.

¶ 1 Vernon Hershberger appeals a judgment of conviction entered after a jury found him guilty of violating a holding order issued by the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP). Hershberger argues that the circuit court erroneously prohibited him from: (1) introducing expert testimony and other evidence purportedly showing that there was no factual basis for issuing the holding order to him; (2) introducing into evidence an unredacted version of the holding order; and (3) presenting evidence to support his theory of defense. We conclude that the circuit court properly prohibited Hershberger from introducing testimony and evidence purportedly showing that there was no factual basis for issuance of the holding order, because the evidence that Hershberger sought to introduce constituted a collateral attack on the holding order, and such a collateral attack was foreclosed by Hershberger's ability to appeal the order after it was issued. We also conclude that the circuit court properly prohibited Hershberger from introducing into evidence an unredacted version of the holding order, because the redacted portions of the order were not relevant to any issue in this criminal case. Finally, we conclude that the circuit court's evidentiary rulings did not deny Hershberger his asserted constitutional right to present a defense. Accordingly, we affirm.

BACKGROUND

¶ 2 Hershberger operates a dairy farm. A DATCP investigator issued Hershberger a holding order pursuant to Wis. Stat. § 97.12(2)(a) (2011–12),¹ prohibiting him from selling or moving the dairy and meat products listed in the order “without written permission during the duration of [the] holding order.”² The parties do not dispute that Hershberger violated the holding order the day after it was issued. The State charged Hershberger with violating the holding order pursuant to Wis. Stat. § 97.12(2)(d)1., which is a criminal offense.³

¶ 3 At issue are two related evidentiary rulings that the circuit court made before trial: (1) the court prohibited any collateral attack on the holding order, and consistent with that ruling prohibited Hershberger from introducing testimony and evidence regarding the basis for the holding order, on the grounds that such evidence was not relevant; and (2) the court allowed the introduction of a version of the holding order in which references to the basis for the holding order were redacted, rather than an unredacted version. The jury found Hershberger guilty of violating the holding order.

After trial, the circuit court denied Hershberger's motion for a new trial, “stand [ing] by [its] earlier rulings” as to the collateral attack and evidentiary issues.

¶ 4 On appeal, Hershberger argues that he should have been allowed to present evidence purportedly showing that the holding order “was factually baseless,” and he challenges the circuit court's evidentiary rulings prohibiting him from doing so.

DISCUSSION

¶ 5 Hershberger argues that: (1) the circuit court erroneously applied the rule prohibiting collateral attacks to preclude him from introducing testimony and evidence relating to the factual basis of the holding order; (2) the circuit court erroneously prohibited him from introducing the unredacted holding order; and (3) these and other related evidentiary rulings combined to deny him his constitutional right to present a defense to the charge against him. We address each argument in turn.

1. Collateral Attack on Holding Order

¶ 6 The parties agree that Hershberger sought to offer a defense in this criminal proceeding that may be characterized as a collateral attack on the holding order. In this section, we first articulate the rule generally prohibiting collateral attacks on prior orders or judgments, then relate how the rule was addressed in the circuit court and set forth the standard of review of the circuit court's application of the rule, and finally address Hershberger's arguments that the circuit court erred in applying the rule against him.

A. The Collateral Attack Rule

¶ 7 We begin with a summary of the collateral attack rule based on legal authority that explicitly refers to the application of the rule to prior judicial orders and judgments. We then turn to the question of the rule's application to prior administrative orders. As discussed in more detail below, the distinction between prior judicial orders and prior administrative orders forms the basis for one of Hershberger's arguments on appeal.

¶ 8 A collateral attack is “[a]n attack on a judgment in a proceeding other than a direct appeal.” Black's Law Dictionary 318 (10th ed.2014); see also State v. Campbell, 2006 WI 99, ¶ 54, 294 Wis.2d 100, 718 N.W.2d 649 (a collateral attack is an “ ‘attempt to avoid, evade or deny the force and effect of a judgment in an indirect manner and not in a direct proceeding’ ”) (quoted sources omitted). Collateral attacks are generally disfavored because “ ‘they disrupt the finality of prior judgments and thereby tend to undermine confidence in the integrity of our procedures and inevitably delay and impair the orderly administration of justice.’ ” Oneida Cnty. Dep't of Soc. Servs. v. Nicole W., 2007 WI 30, ¶ 28, 299 Wis.2d 637, 728 N.W.2d 652 (quoted sources omitted); see also, 47 Am.Jur.2dJudgments § 739 (2014) (“Collateral attacks on final judgments are generally disallowed or disfavored because it is the policy of the law to give finality to the judgments of the courts, and to avoid endless litigation, recognizing the public interest in the final adjudication of controversies.”).

¶ 9 Accordingly, collateral attacks on prior judicial orders or judgments are generally prohibited, unless the prior orders or judgments were “ ‘procured by fraud.’ ” Nicole W., 299 Wis.2d 637, ¶ 28, 728 N.W.2d 652 (quoted source omitted); see also Stimson v. Munsen, 251 Wis. 41, 44, 27 N.W.2d 896 (1947) (on collateral attack, a prior order or judgment “ ‘may only be set aside upon the ground that its entry was induced by or constituted fraud upon the court or ... was the result of mistake or accident’ ”) (quoted source omitted); but see Campbell, 294 Wis.2d 100, ¶¶ 53, 55, 62, 718 N.W.2d 649 (acknowledging an exception to the rule prohibiting collateral attacks where the order or judgment was obtained by fraud, but rejecting that exception in prosecutions for interference with child custody).

¶ 10 Collateral attacks may also be allowed where the prior judicial orders or judgments are void. Kohler Co. v. ILHR, 81 Wis.2d 11, 25, 259 N.W.2d 695 (1977) (“void judgments may be attacked collaterally”). In particular, “[w]here a valid order or judgment is a necessary condition for one of the elements of a crime, a collateral attack upon the order or judgment can negate an element of the crime if the order or judgment is void.” Campbell, 294 Wis.2d 100, ¶ 42, 718 N.W.2d 649. A judicial order or judgment is void “[w]hen a court or other judicial body acts in excess of its jurisdiction.” Kohler, 81 Wis.2d at 25, 259 N.W.2d 695 ; see also Campbell, 294 Wis.2d 100, ¶ 43, 718 N.W.2d 649 (an order or judgment is void where the court lacks subject matter or personal jurisdiction). However, an “ ‘order or judgment, however erroneous ... is not subject to collateral attack merely because it is erroneous, nor is it void for that reason.’ ” Stimson, 251 Wis. at 44, 27 N.W.2d 896 (quoted source omitted).

¶ 11 While a void judicial order or judgment “is not binding on anyone,” an allegedly erroneous order or judgment “has the same force and effect as a valid

judgment.”

Campbell, 294 Wis.2d 100, ¶ 42, 718 N.W.2d 649. Consequently, “ ‘[w]here a court has jurisdiction over the subject matter and the parties, the fact that an order or judgment is erroneously or improvidently rendered does not justify a person in failing to abide by its terms.’ ” Id., ¶ 49 (quoted source omitted). Rather, a person must abide by the terms of an allegedly erroneous order or judgment “until he [or she] succeed[s] in reversing it through the applicable review process.” Id.

¶ 12 This reference to resort to “the applicable review process” implicates another exception to the prohibition against a collateral attack on a purportedly erroneous order or judgment, arising out of the Due Process Clause. Under this exception, the rule prohibiting a collateral attack on a prior order or judgment may not apply where there was no meaningful opportunity for review of the order or judgment. See Campbell, 294 Wis.2d 100, ¶¶ 57–58, 718 N.W.2d 649 (disallowing a collateral attack on a custody order allegedly procured by fraud where “[a]dequate judicial processes exist to attack [the] order or judgment for fraud”); United States v. Mendoza–Lopez, 481 U.S. 828, 837–38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (stating, with respect to a criminal prosecution for re-entry to the United States following a deportation order, that “judicial review must be made available before [an] administrative order may be used to establish conclusively an element of a criminal offense”).

¶ 13 To summarize, collateral attacks on prior judicial orders or judgments are generally prohibited, but this rule may not apply where the order or judgment was procured by fraud, the order or judgment was void because ...