State v. Johnson, s. 75--390--C
| Decision Date | 03 November 1976 |
| Docket Number | Nos. 75--390--C,75--391--CR,s. 75--390--C |
| Citation | 74 Wis.2d 169,246 N.W.2d 503 |
| Parties | STATE of Wisconsin, Plaintiff-in-Error, v. Sharon A. JOHNSON, Defendant-in-Error. STATE of Wisconsin, Plaintiff-in-Error, v. Susan CRAPE, Defendant-in-Error. |
| Court | Wisconsin Supreme Court |
Bronson C. La Follette, Atty. Gen., James H. McDermott and Marguerite M. Moeller, Asst. Attys. Gen., for plaintiff-in-error.
Howard B. Eisenberg, State Public Defender, for defendants-in-error.
On April 10, 1974, criminal complaints were filed charging the defendants Susan Crape and Sharon Johnson with committing an act of sexual perversion contrary to sec. 944.30(2) Stats., 1 with the complainant Kenneth W. Enslen, Jr. These acts took place in an apartment located in the city of Milwaukee on April 8, 1974. Enslen paid each defendant $100 for performing such acts. Apparently Enslen was not charged with any offense.
The defendants moved to dismiss the complaints, asserting as one ground for dismissal that the action against them was brought 'in violation of the Fourteenth Amendment of the United States Constitution in that the defendants are being deprived of equal protection under the laws inasmuch as Section 944.30(2) of the Wisconsin Statutes is being selectively and discriminatorily applied. . . .'
At the hearing on the motion no evidence was offered. The trial court heard the oral arguments of counsel and accepted written briefs and dismissed the complaints. From the statements of counsel and from his own recollection of other cases before him, the trial judge concluded that women were being charged with prostitution and that male participants were not being charged with prostitution or other related sexual morality offenses and that this constituted discriminatory enforcement of the law.
We recognize that under the Fourteenth Amendment to the United States Constitution persons accused of violating criminal statutes are protected from persistent selective and intentional discrimination in the enforcement of the statute in the absence of valid exercise of prosecutorial discretion. 2
In this case we reverse and remand for an evidentiary hearing for reasons set forth below.
In the trial court's memorandum opinion the trial judge stated:
'. . . I feel that a applied in this particular fact situation, and I want to emphasize that I want to limit it to this particular situation, where it is clear that the complainant is a person who is a user of the prostitute, where he is a user and is equally guilty, that it is my feeling that he should also have been charged with patronizing a prostitute.
'I feel the failure to charge him is that type of discriminatory enforcement which disturbs this Court and which this Court finds to be somewhat offensive.'
From the face of the complaint it seems conclusive that the complainant did violate some law against sexual morality. As alluded to by the trial court, it is conceivable he could have been charged with patronizing a prostitute, 3 sexual perversion, 4 or a party to the crime of prostitution. 5
A basic consideration to the question of equal protection in the enforcement of laws is that "all persons similarly circumstanced shall be treated alike." 6 While an argument can be made that a prostitute and the patron are not similarly circumstanced because of the commercial aspects, we do not believe that fact standing alone can be controlling. The principal fact is that both parties have violated a sexual morality statute. If women prostitutes are consistently prosecuted and men patrons are consistently not prosecuted, without valid prosecutorial discretion, the equal protection clause is violated.
A prosecuting attorney is cloaked with considerable discretion. In State ex rel. Kurkierewicz v. Cannon, 42 Wis.2d 368, 378--79, 166 N.W.2d 255, 260 (1969), 7 we stated:
'The district attorney in Wisconsin is a constitutional officer and is endowed with a discretion that approaches the quasi-judicial. State v. Peterson (1928), 195 Wis. 351, 359, 218 N.W. 367.
'It is clear that in his functions as a prosecutor he has great discretion in determining whether or not to prosecute. There is no obligation or duty upon a district attorney to prosecute all complaints that may be filed with him. While it is his duty to prosecute criminals, it is obvious that a great portion of the power of the state has been placed in his hands for him to use in the furtherance of justice, and this does not per se require prosecution in all cases where there appears to be a violation of the law no matter how trivial. In general, the district attorney is not answerable to any other officer of the state in respect to the manner in which he exercises those powers. True, he is answerable to the people, for if he fails in his trust he can be recalled or defeated at the polls. In the event he wilfully fails to perform his duties or is involved in crime, he may be suspended from office by the governor and removed for cause. These, however, are political remedies that go not to directing the performance of specific duties but rather go to the question of fitness for office.
'The district attorney's function, in general, is of a discretionary type, the performance of which is not compellable in mandamus. 27 C.J.S. District and Prosecuting Attorneys § 10, p. 648, summarizes, correctly we believe, the broad nature of the discretion conferred upon the district attorney:
There may be valid prosecutorial reasons for prosecuting a prostitute and not the patron...
To continue reading
Request your trial
-
County of Kenosha v. C & S Management, Inc., 97-0642
...in Wisconsin is a constitutional officer and is endowed with a discretion that approaches the quasi-judicial." State v. Johnson, 74 Wis.2d 169, 173, 246 N.W.2d 503 (1976) (citing State v. Peterson 195 Wis. 351, 359, 218 N.W. 367 (1928)). In accord with this discretion, the prosecutor need n......
-
Mack v. State
...to prosecute was selective, persistent, discriminatory and without justifiable prosecutional discretion." State v. Johnson, 74 Wis.2d 169, 174, 246 N.W.2d 503, 507 (1976). There has been no showing of factual discrimination in the record to indicate that an abuse of prosecutorial discretion......
-
State v. Karpinski
...2198, 2204, n. 9, 60 L.Ed.2d 755 (1979); Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); State v. Johnson, 74 Wis.2d 169, 173, 246 N.W.2d 503 (1976); Locklear v. State, 86 Wis.2d 603, 610, 273 N.W.2d 334 (1979).For further discussion of the defense of prosecutory disc......
-
Com. v. King
...or prosecutor's office followed an unjustifiable policy of prosecuting prostitutes and not their customers. See State v. Johnson, 74 Wis.2d 169, 246 N.W.2d 503 (1976). This policy in turn may be shown to be sex-based discrimination (and thus subject to strict scrutiny) by a showing that mos......
-
Sex Work
...verbal 164. Recreational Dev. of Phoenix, Inc. v. City of Phx., 83 F. Supp. 2d 1072, 1086–87 (D. Ariz. 1999). 165. State v. Johnson, 246 N.W.2d 503, 506 (Wis. 1976). 166. Hough, supra note 119, at 118. 167. 168. 169. See, e.g. , Roe II v. Butterworth, 958 F. Supp. 1569, 1581 (S.D. Fla. 1997......
-
Sex Work
...club. 259 Therefore, the club was a public place and not subject to any constitutional privacy protections. 260 248. State v. Johnson, 246 N.W.2d 503, 506 (Wis. 1976). 249. Hough, supra note 5, at 118. 250. See, e.g. , Roe II v. Butterworth, 958 F. Supp. 1569, 1581 (S.D. Fla. 1997). 251. Id......