State v. McCollum

• Court: Wisconsin Court of Appeals
• Writing for the Court: CANE
• Citation: State v. McCollum, 464 N.W.2d 44, 159 Wis.2d 184 (Wis. App. 1990)
• Decision Date: 14 November 1990
• Docket Number: 90-0969-C,90-0970-CR and 90-0971-CR,Nos. 90-0968-C,s. 90-0968-C
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Sheila L. McCOLLUM, Defendant-Respondent. STATE of Wisconsin, Plaintiff-Appellant, v. Michele E. DAVIS, Defendant-Respondent. STATE of Wisconsin, Plaintiff-Appellant, v. Sandra J. PETERSON, Defendant-Respondent. STATE of Wisconsin, Plaintiff-Appellant, v. Christine L. HILL, Defendant-Respondent.

Page 44

464 N.W.2d 44

159 Wis.2d 184

STATE of Wisconsin, Plaintiff-Appellant, v. Sheila L. McCOLLUM, Defendant-Respondent.

STATE of Wisconsin, Plaintiff-Appellant, v. Michele E. DAVIS, Defendant-Respondent.

STATE of Wisconsin, Plaintiff-Appellant, v. Sandra J. PETERSON, Defendant-Respondent.

STATE of Wisconsin, Plaintiff-Appellant, v. Christine L. HILL, Defendant-Respondent.

Nos. 90-0968-CR, 90-0969-CR, 90-0970-CR and 90-0971-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 3, 1990.

Opinion Released Nov. 14, 1990.

Opinion Filed Nov. 14, 1990.

Richard White, Asst. Dist. Atty., for plaintiff-appellant, State of Wis.

Margaret A. Maroney, Asst. State Public Defender, for Sheila L. McCollum.

Robert W. McKinley of McKinley & Anderson, Chippewa Falls, for Michele Davis.

Paul J. Lenz, Altoona, for Sandra J. Peterson.

Before CANE, P.J., and LaROCQUE and MYSE, JJ. ¹

CANE, Presiding Judge.

The state appeals an order dismissing charges of prostitution filed against Sheila McCollum, Michele Davis, Sandra Peterson and Christine Hill. All four women were charged with one count of prostitution, contrary to sec. 944.30(5), Stats. ² The state contends that the trial court erred by ruling that the women were selectively prosecuted in violation of the fourteenth amendment's equal protection clause. ³ We reject the state's claim and affirm the trial court's dismissal of the charges.

On October 7, 1989, McCollum, Davis and Hill, all residents of Minnesota, formed part of a group of five performers at a club in Eau Claire County. The group was called "Sexy and Sweet." Peterson, a Wisconsin resident, acted as announcer for the performance and allegedly also performed nude during the evening. ⁴

Sergeant Terry Biddle of the Eau Claire County Sheriff's Department received information that a private party was to be held at the club on October 7 and purchased four tickets to the party. Detectives Donald Hurrle and Thomas Maki of the Milwaukee County Sheriff's Department, and Investigators Dave Hake and Paul Burch of the St. Croix County Sheriff's Department used the tickets to gain admission to the club on October 7. Biddle and another Eau Claire County officer remained in the back of a truck in the club's parking lot during the performance.

Inside the club, the four officers observed various forms of sexual contact occurring between all but one of the women performing and a number of the male patrons. Hurrle testified at the motion hearing that of the 100 male patrons in the bar, approximately fifty to seventy-five fondled the women performers and thrust money at them. He testified that he could not give a detailed description of any of the male patrons who had sexual contact, beyond describing them as "white males, somewhere in the area of maybe 20 to 35 years of age." Maki similarly testified at the motion hearing that he was unable to identify any male patron.

Biddle had requested backup assistance to arrive at the party's scheduled closing of 1 a.m., but the performance ended twenty minutes earlier than expected, and the majority of patrons had left the scene by the time the backup officers arrived. Maki testified that at the time the six officers on the scene arrested the women, there were still "perhaps several dozen" male patrons in the vicinity. Maki stated that he did not make an effort to arrest any of the male patrons. Both Hurrle and Maki testified that they understood the focus of the investigation to be on the female dancers. The four women were arrested while trying to leave the club. The male owner of the club was also arrested and prosecuted, but on a different charge. No male patron who engaged in sexual contact with the women was arrested.

PURPOSEFUL DISCRIMINATION AND THE STANDARD OF REVIEW

The trial court found:

Once the party broke up, partly due to the fact that these people were shorthanded, only the performers were arrested. But, again, the officers managed to arrest all of the women performers and no men whatsoever. It's difficult to believe that the one-sidedness of the arrests for all women and no men were [sic] totally due to the fact of being shorthanded. It certainly had to be in large measure because of the focus of the investigation--namely, the performers, i.e., women.

It seems to me that the only conclusion that can be reached then is that the purpose of this investigation was to arrest these performers because of and not in spite of the fact that they were the women who were performing.

The state contends that our review of the trial court's ruling that there was intent to discriminate on the basis of sex should be de novo, citing State v. Woods, 117 Wis.2d 701, 715-16, 345 N.W.2d 457, 468 (1984), habeas corpus granted sub nom. Woods v. Clusen, 605 F.Supp. 890 (E.D.Wis.1985), aff'd, 794 F.2d 293 (7th Cir.1986) (a determination whether an accused knowingly, intelligently and voluntarily waived his rights is a matter of constitutional fact that is independently reviewed by an appellate court).

Constitutional facts depend on findings of historical facts by the trial court, which are reviewed under the clearly erroneous standard. See sec. 805.17(2), Stats. Peterson argues in her brief that a number of the trial court's findings were historical facts, entitled to review under the clearly erroneous standard. ⁵

The line between historical fact and constitutional fact is "often fuzzy at best." Container Corp. v. Franchise Tax Bd., 463 U.S. 159, 176, 103 S.Ct. 2933, 2946, 77 L.Ed.2d 545 (1983). In the arena of purposeful discrimination violative of the equal protection clause, however, the United States Supreme Court has provided clear guidance. Where the trial court applied the correct legal standard in its inquiry, Rogers v. Lodge, 458 U.S. 613, 620-22, 102 S.Ct. 3272, 3277-78, 73 L.Ed.2d 1012 (1982), the issue of whether a particular legislative scheme is being maintained for discriminatory purposes is a finding that should be reviewed under the clearly erroneous standard. Id. at 623, 102 S.Ct. at 3278; see also Pullman-Standard v. Swint, 456 U.S. 273, 287-88, 102 S.Ct. 1781, 1789-90, 72 L.Ed.2d 66 (1982) (whether the differential impact of a seniority system resulted from an intent to discriminate on racial grounds is a pure question of fact, to be reviewed under the clearly erroneous standard). As the Swint Court noted, issues of intent are commonly treated as factual matters. Id. at 288, 102 S.Ct. at 1789. The Rogers Court stated that deciding whether a discriminatory purpose exists demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. Id. at 618, 102 S.Ct. at 3276 (citing Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977)).

Our de novo review, then, is limited to determining whether the trial court applied the correct legal standard to determine that there was purposeful discrimination. If it did, we review its finding under the clearly erroneous standard as to whether the state's action in investigating, arresting and charging the women was motivated by an intent to discriminate on the basis of sex.

THE TRIAL COURT APPLIED THE CORRECT LEGAL STANDARDS

The trial court did not apply the standard established by our supreme court in State v. Johnson, 74 Wis.2d 169, 246 N.W.2d 503 (1976). The Johnson court held:

There may be valid prosecutorial reasons for prosecuting a prostitute and not the patron under given circumstances such as organized commercial prostitution, immunity from prosecution to testify, and others. Nor can one or few isolated incidents of failure to prosecute both be sufficient grounds to escape prosecution for a criminal act upon equal protection grounds. To avoid prosecution for a criminal offense upon equal protection grounds it must be shown that the failure to prosecute was selective, persistent, discriminatory and without justifiable prosecutorial discretion.

Id. at 174, 246 N.W.2d at 507 (emphasis added). Here, the trial court stated:

First of all, let me say that I don't have any problem in concluding that the defense has not shown a prima facie case of any kind of a pattern to the extent that might be required by the State v. Johnson case. But I'm also satisfied that the United [sic] Supreme Court cases don't make the proof of a pattern the exclusive method of showing violation of equal protection. An equal protection violation can be shown, first, by proving that the prosecution has a discriminatory effect and, second, by proving that it's motivated by a discriminatory purpose.

The trial court applied the "discriminatory effect/discriminatory purpose" standard articulated in Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985) ("It is appropriate to judge selective prosecution claims according to ordinary equal protection standards ... [that] require petitioner to show both that the passive enforcement system had a discriminatory effect and that it was motivated by a discriminatory purpose."). We note that the Johnson standard was developed nine years before Wayte. Additionally, a claim under the United States Constitution is to be determined using the test set forth by the United States Supreme Court. State v. Pitsch, 124 Wis.2d 628, 641, 369 N.W.2d 711, 718 (1985). ⁶

The trial court also applied the correct standard to determine whether the state's actions had a discriminatory effect. The court found that "[w]hat we're talking about here is people who are similarly situated. Men and women were involved in these alleged acts. Only the women were arrested, not the men." The "similarly situated" standard to determine the existence of discriminatory effect was recently discussed in United States v. Aguilar, 883 F.2d 662 (9th Cir.1989). Aguilar involved a claim that defendants were singled out for prosecution because of their vocal opposition to United States foreign policy in...