State v. Karpinski

• Decision Date: 04 December 1979
• Docket Number: No. 76-586-CR,76-586-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Kenneth A. KARPINSKI, Defendant-Appellant, Daniel C. Bascome, Defendant.
• Court: Wisconsin Supreme Court

Page 729

285 N.W.2d 729

92 Wis.2d 599

STATE of Wisconsin, Plaintiff-Respondent, v. Kenneth A. KARPINSKI, Defendant-Appellant Daniel C. Bascome, Defendant.

No. 76-586-CR.

Supreme Court of Wisconsin.

Argued Oct. 9, 1979.

Decided Dec. 4, 1979.

David C. Lugert, associate legal counsel, Milwaukee, argued, for defendant-appellant; Henry G. Piano, legal counsel, on brief.

Marguerite M. Moeller, Asst. Atty. Gen., for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

Burt P. Natkins, legal counsel, League of Wisconsin Municipalities, Madison, amicus curiae.

ABRAHAMSON, Justice.

This appeal challenges the constitutionality of a criminal complaint on the ground that the Waukesha county district attorney exercised discretion to charge the defendant with a statutory violation in a criminal action when the same conduct could have been prosecuted as an ordinance violation in a civil action. We affirm the order of the circuit court upholding the validity of the criminal complaint.

Karpinski, the defendant, was charged with a misdemeanor, possession of controlled substances (marijuana and amphetamines) in violation of sec. 161.41(3), Stats. ¹ The alleged offense occurred on November 30, 1974, in the city of Brookfield in Waukesha county. At the time of the offense the city of Brookfield had an ordinance prohibiting the same conduct which violated sec. 161.41(3), Stats. ²

The penalty for a violation of sec. 161.41(3), Stats., is a fine or a term of imprisonment in county jail. Sec. 939.61, Stats. For first offenders, conditional discharge is available. ³ An action for a violation of the Brookfield ordinance is a civil action, the penalty being a money forfeiture. ⁴

The county court granted Karpinski's motion to dismiss the criminal complaint, holding that Brookfield's ordinance was invalid under the Wisconsin constitution and the doctrine of preemption; that dual prosecution by the state and municipality violates the federal and state constitutional prohibitions against double jeopardy; ⁵ that the ordinance is invalid as violative of equal protection and due process guarantees; and that sec. 66.051(4), Stats., ⁶ contravenes the state constitution. ⁷ The county court dismissed the complaint without prejudice, concluding that the state did not come before the court with "clean hands." ⁸

The State appealed to the circuit court which reversed the county court order and reinstated the complaint. Karpinski appeals from the order of the circuit court, and we affirm the order of the circuit court.

On appeal Karpinski challenges the filing of the criminal charge against him on the single ground that the mere coexistence of a state statute and a municipal ordinance prohibiting the same conduct gives prosecutors unbridled discretion in the charging decision in violation of the equal protection or due process guarantees of the federal and state constitutions. ⁹ Karpinski has not attempted to prove a discriminatory prosecution defense, namely, that the decision to prosecute under the state statute or under the Brookfield ordinance is, in fact, based on impermissible prosecutorial considerations such as race, religion, or other arbitrary classification. ¹⁰ Karpinski's brief states the issue as follows:

"This is not just a case of an alleged individual decision by authorities to discriminate against an individual but rather a state wide practice of allowing ordinance violations to co-exist with State Statutory violations with regard to identical conduct. Here there is no set of guidelines by which the charging authorities can determine whether to charge with criminal violations or ordinance violations. The practice is so suspect that it must be said that as a matter of law it violates the due process and equal protection rights of citizens." ¹¹

Support for Karpinski's contention is found in Justice Black's dissent in Berra v. United States, 351 U.S. 131, 135, 76 S.Ct. 685, 100 L.Ed. 1013 (1956):

"So far as I know, this Court has never approved the argument the Government makes here. . . . (That) argument rests on the stark premise that Congress has left to the district attorney or the Attorney General the power to say whether the judge and jury must punish identical conduct as a felony or as a misdemeanor.

"A basic principle of our criminal law is that the Government only prosecutes people for crimes under statutes passed by Congress which fairly and clearly define the conduct made criminal and the punishment which can be administered. This basic principle is flouted if either of these statutes can be selected as the controlling law at the whim of the prosecuting attorney or the Attorney General. 'For, the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.' Yick Wo v. Hopkins, 118 U.S. 356, 370, (6 S.Ct. 1064, 1071, 30 L.Ed. 220.)

". . . Of course it is true that under our system Congress may vest the judge and jury with broad power to say how much punishment shall be imposed for a particular offense. But it is quite different to vest such powers in a prosecuting attorney. . . .

"The Government's contention here also challenges our concept that all people must be treated alike under the law. This principle means that no different or higher punishment should be imposed upon one than upon another if the offense and the circumstances are the same. . . ." Berra v. United States, 351 U.S. 131, 138, 139, 140, 76 S.Ct. 685, 690-691, 100 L.Ed. 1013 (Black, J., dissenting).

The State asserts that the Waukesha county district attorney's discretion in the case at bar is not qualitatively different than that typically exercised by prosecutors in deciding (1) whether to prosecute and (2) under which of several criminal statutes to prosecute.

The instant case, argues the State, is an illustration of the generally accepted doctrine that the prosecutor has wide discretion in deciding whether to prosecute. The State says that in the case at bar the Waukesha county district attorney is performing the usual function of the office; the district attorney is deciding whether or not a charge should be filed under the state statute prohibiting the possession of marijuana.

This court has repeatedly emphasized that the prosecutor has great discretion in determining whether to commence a prosecution. While it is the prosecutor's duty to prosecute criminal actions, sec. 59.47, Stats., the prosecutor is not required to prosecute all cases in which it appears that the law has been violated. We have characterized the prosecutor's charging discretion as "quasi-judicial" in the sense that it is his duty to administer justice rather than to obtain convictions. ¹²

We have said that in general the prosecuting attorney is answerable to the people of the state and not to the courts or the legislature as to the way in which he exercises power to prosecute complaints. State ex rel. Kurkierewicz v. Cannon, 42 Wis.2d 368, 378, 166 N.W.2d 255 (1969); State v. Kenyon, 85 Wis.2d 36, 42, 45, 270 N.W.2d 160 (1978). Nevertheless, the charging decision of a district attorney is not unlimited; it has bounds.

In the criminal justice system there is at one and the same time the need for encouraging prosecutorial discretion to achieve flexibility and sensitivity and the need for circumscribing prosecutorial discretion to avoid arbitrary, discriminatory or oppressive results. One technique suggested to achieve both goals is administrative rule-making. Although the development of standards to structure and check the exercise of discretion in individual cases is a difficult task, prosecutors have been encouraged to formulate such standards. Davis, Discretionary Justice, 59, 232-233 (1969); Remington, Newman, Kimball, Melli and Goldstein, Criminal Justice Administration c. 6 (1969); Abrams, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 U.C.L.A.L.Rev. 1 (1971); Breitel, Controls in Criminal Law Enforcement, 27 U.Chi.L.Rev. 427 (1960).

Guidelines for the exercise of prosecutorial discretion are explored in Standard 3.9 of the American Bar Association, Standards for Criminal Justice Relating to the Prosecution Function (Approved Draft 1971), to which this court has referred in prior cases.

"3.9 Discretion in the charging decision.

"(a) In addressing himself to the decision whether to charge, the prosecutor should first determine whether there is evidence which would support a conviction.

"(b) The prosecutor is not obliged to present all charges which the evidence might support. The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that evidence exists which would support a conviction. Illustrative of the factors which the prosecutor may properly consider in exercising his discretion are:

"(i) the prosecutor's reasonable doubt that the accused is in fact guilty;

"(ii) the extent of the harm caused by the offense;

"(iii) the disproportion of the authorized punishment in relation to the particular offense or the offender;

"(iv) possible improper motives of a complainant;

"(v) prolonged non-enforcement of a statute, with community acquiescence;

"(vi) reluctance of the victim to testify;

"(vii) cooperation of the accused in the apprehension or conviction of others;

"(viii) availability and likelihood of prosecution by another jurisdiction.

"(c) In making the decision to prosecute, the prosecutor should give no weight to the personal or political advantages or disadvantages which might be involved or to a desire to enhance his record of convictions.

"(d) In cases which involve a serious threat to the community, the prosecutor should not be deterred from prosecution by the fact that in his jurisdiction juries have...