State v. Martin

• Decision Date: 15 February 1995
• Docket Number: Nos. 94-1643-C,94-2130,s. 94-1643-C
• Citation: 530 N.W.2d 420,191 Wis.2d 646
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Joshua K. MARTIN, Defendant-Appellant. In the Interest of JOSHUA K.M., A Person Under the Age of 18. STATE of Wisconsin, Petitioner-Respondent, v. JOSHUA K.M., Respondent-Appellant.
• Court: Wisconsin Court of Appeals

Page 420

530 N.W.2d 420

191 Wis.2d 646

STATE of Wisconsin, Plaintiff-Respondent, v. Joshua K. MARTIN, Defendant-Appellant.

In the Interest of JOSHUA K.M., A Person Under the Age of 18.

STATE of Wisconsin, Petitioner-Respondent, v. JOSHUA K.M., Respondent-Appellant.

Nos. 94-1643-CR, 94-2130.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 19, 1994.

Opinion Released Feb. 15, 1995.

Opinion Filed Feb. 15, 1995.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Randall E. Paulson, Asst. State Public Defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen., and Sally L. Wellman, Asst. Atty. Gen.

Before ANDERSON, P.J., and BROWN and SNYDER, JJ.

BROWN, Judge.

This case tests the constitutionality of Wisconsin's new statutes relating to juveniles who allegedly commit a battery while in a secured correctional facility. ¹ Joshua K. Martin contends that this new statutory scheme, which presumptively waives him to the jurisdiction of our adult criminal justice system, imposes a burden of overcoming a presumption that neither he nor other like-situated juveniles can feasibly meet and which no other alleged juvenile offenders need meet. He also opposes the scheme's presumed minimum three-year incarceration provision on grounds that it violates the fundamental right of individual sentencing assessment enjoyed by other juvenile and criminal defendants in this state. We reject these and other equal protection arguments raised and affirm.

On February 3, 1994, Martin, a resident at Ethan Allen School for Boys--a secured correctional facility--was charged with a felony for allegedly hitting a youth counselor in the jaw contrary to § 940.20(1), STATS. (battery by a prisoner). Although Martin was a juvenile at the time of the offense and although juveniles charged with committing criminal offenses are initially routed through the juvenile system pursuant to §§ 48.12(1) and 48.18, STATS., the adult criminal court obtained jurisdiction over the case pursuant to a recently enacted statute, § 48.183, STATS. This statute states in pertinent part:

Notwithstanding ss. 48.12(1) and 48.18, courts of criminal jurisdiction have exclusive original jurisdiction over a child who is alleged to have violated s. 940.20(1) ... while placed in a secured correctional facility.... [and] is subject to the procedures specified in chs. 967 to 979 and the criminal penalties provided for those crimes....

When this statute was invoked, two other companion statutes were implicated. Section 970.032, STATS., requires that the preliminary hearing magistrate go beyond the usual job of determining whether a crime was committed and whether there is probable cause to believe that the defendant committed the crime. It also requires the magistrate to determine whether the child should be kept in the adult system or transferred to the juvenile court. Id. In what we term a "reverse waiver" procedure, the statute presumes that the child will be kept in the adult system unless it is found that the child cannot receive adequate treatment, that transfer would not depreciate the seriousness of the offense and that retaining jurisdiction is not necessary to deter the child or other children from further battery violations. Section 970.032(2)(a), (b), (c).

Section 939.635, STATS., requires a minimum sentence of three years imprisonment unless the court finds that placing the child on probation or imposing a lesser sentence would not depreciate the seriousness of the offense and would be sufficient to deter further batteries by the defendant or other juveniles in secured facilities.

Martin was produced before the adult court for an initial appearance and subsequently moved to dismiss the complaint on the grounds that all of the above statutes, taken together, were unconstitutional. A court commissioner assigned to hear the motion agreed with Martin and dismissed the case. The State moved for reconsideration and Judge Joseph E. Wimmer overturned the court commissioner's ruling, found the statutes constitutional, denied the motion to dismiss and reinstated the felony proceeding. Martin petitioned for leave to appeal and we granted it.

Meanwhile, after the court commissioner found the adult prosecution unconstitutional, but before it was reinstated by Judge Wimmer, the State filed a delinquency petition in the juvenile branch of the circuit court regarding the same accusation. The State thereafter sought a declaratory ruling from the juvenile court, Judge J. Mac Davis presiding, that it had no jurisdiction to entertain the juvenile proceeding because of § 48.183, STATS. Martin appealed Judge Davis's order. Martin then moved to consolidate the two appeals. We granted consolidation.

Martin launches several constitutional arguments, all of them sounding completely in equal protection. We will address these arguments in turn, but first we must determine the requisite level of judicial review. The principles to be applied when analyzing a statute challenged on equal protection grounds have been discussed at length in Wisconsin cases. See State v. Hart, 89 Wis.2d 58, 64-65, 277 N.W.2d 843, 846 (1979). Briefly, if a statute affects a "fundamental right" or creates a classification based on a "suspect" criterion, we review the statute with "strict scrutiny." State v. Annala, 168 Wis.2d 453, 468, 484 N.W.2d 138, 144 (1992). Otherwise, the appropriate analysis is the "rational basis test" which determines whether the legislative classification rationally furthers a purpose identified by the legislature. Id.

Fundamental rights are those which are either explicitly or implicitly based in the Constitution. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33, 93 S.Ct. 1278, 1296, 36 L.Ed.2d 16 (1973). Rights that have been determined fundamental are procreation, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); voting, Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); access to the courts, State v. Neave, 117 Wis.2d 359, 344 N.W.2d 181 (1984); freedom of travel, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), overruled on other grounds by Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 1359, 39 L.Ed.2d 662 (1974); and the rights guaranteed by the First Amendment of the Constitution.

When the courts speak of a "suspect" class, they look to "traditional indicia of suspectness." Regents of the Univ. of California v. Bakke, 438 U.S. 265, 357, 98 S.Ct. 2733, 2782, 57 L.Ed.2d 750 (1978) (quoted source omitted). Traditional indicia are found when there is a history of such purposeful unequal treatment, political powerlessness or imposition of special disabilities such that the courts command extraordinary protection from the majoritarian political process. Id. Persons generally are placed in these suspect classes by accident of birth. See Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583 (1973). Examples of suspect classes are race, alienage and national origin. Shannon & Riordan v. Board of Zoning Appeals, 153 Wis.2d 713, 727, 451 N.W.2d 479, 484 (Ct.App.1989). Another example is where a statute classifies by sex. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); see also Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529 (1971).

Martin does not appear to argue that he is a member of a suspect class. His argument is that he is a juvenile singled out for disparate treatment. Even if he were to argue that he is a member of a suspect class, his argument would be unavailing since none of the markers for determining a suspect class is identified here. He has not, for example, been placed in a class that has been traditionally singled out for discrimination by accident of birth.

Martin does argue, however, that the new statutes affect a "fundamental right." He claims that it is a fundamental right that all criminal and juvenile defendants have the opportunity for a hearing with fair standards before they can be deprived of their liberty. He cites In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967), for the proposition that government is required to extend elemental due process, including "basic fairness," to children accused of crimes. He maintains that when the legislature insisted on presumptively waiving alleged batterers like him to adult court, it placed a burden on him of overcoming the waiver presumption that he cannot in reality meet. He asks rhetorically: How will he be able to prove that keeping him in the adult system is not necessary to deter him or others from battering in a secured institution? How will he show that transferring him to juvenile court will not depreciate the seriousness of his action? He implicitly if not explicitly asserts that he has no real evidentiary tools which he can use to overcome the presumption of waiver. He claims that "basic fairness" requires that he has a fundamental right to an "individual assessment" of his suitability for treatment in the juvenile system.

Regarding sentencing criteria, he again maintains that "individual assessment" is a "hallmark of our justice system." He cites State v. Borrell, 167 Wis.2d 749, 482 N.W.2d 883 (1992), for the proposition that a defendant's personality, demeanor, age, remorse and need for rehabilitative control are all individualized assessments which are fundamental to our justice system. He argues that defendants in his class are not judged by these individualized criteria, but are forced to prove different things like the "deterrability" and "depreciation" factors referred to above in order to receive less than the three-year minimum penalty prescribed by the new statutes. He reiterates what he perceives to be the improbability of being able to prove the negative.

In Martin's view, to make him prove the...