State v. Schmitt

• Decision Date: 14 July 1988
• Docket Number: No. 87-0836,87-0836
• Citation: 145 Wis.2d 724,429 N.W.2d 518
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Carl SCHMITT d/b/a Carl Schmitt Sanitary Landfill, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 518

429 N.W.2d 518

145 Wis.2d 724

STATE of Wisconsin, Plaintiff-Respondent, v. Carl SCHMITT d/b/a Carl Schmitt Sanitary Landfill Defendant-Appellant.

No. 87-0836.

Court of Appeals of Wisconsin.

Submitted on Briefs April 22, 1988.

Opinion Released July 14, 1988.

Opinion Filed July 14, 1988.

Review Denied.

Paul Kent and DeWitt, Porter, Huggett, Schumacher & Morgan, S.C., Madison, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Steven B. Wickland, Asst. Atty. Gen., Madison, for plaintiff-respondent.

Before GARTZKE, P.J., and DYKMAN and EICH, JJ.

DYKMAN, Judge.

Carl Schmitt d/b/a Carl Schmitt Sanitary Landfill appeals from a judgment requiring him to pay $202,550 in forfeitures and $30,382 in penalty assessments. The issues are: (1) whether the forfeitures were proportionate to the offenses; (2) whether Schmitt is liable for multiple violations on the same day; (3) whether the total forfeiture was impermissibly punitive. We conclude

that: (1) the forfeitures were proportionate to the offenses; (2) the trial court properly found Schmitt liable for multiple violations on the same day with regard to some violations but not for others; (3) Schmitt has not preserved the issue of punitive forfeiture. Therefore we affirm in part, reverse in part, and remand for further proceedings.

FACTS

The state charged Schmitt with various statutory and rule violations regarding a landfill he operated in Dodge county. After a trial, the court concluded that Schmitt had violated: (1) section 144.44(4), Stats., which forbids operating a landfill without a license; (2) Wisconsin Adm. Code, sec. NR 180.13(12)(a) which requires a filled landfill site to be closed and abandoned; and (3) Schmitt's 1975 plan approval by filling outside of an approved area. For the first 180 days of operation without a license, the first 365 days of failure to close and abandon, and the first 730 days of filling outside of the approved area, the court assessed Schmitt forfeitures of $50 per day. ¹ For the remaining 1,388 days of violations, the court assessed Schmitt forfeitures of $100 per day. The forfeitures totalled $202,550. The court also assessed an additional $30,382, pursuant to sec. 165.87(2), Stats., which provides for a fifteen percent penalty assessment.

Schmitt then substituted counsel. On motion for reconsideration filed by new counsel, Schmitt claimed the forfeitures violated sec. 778.06, Stats., because the court failed to consider what Schmitt alleged were statutorily mandated factors. The trial court reconsidered but reaffirmed its decision.

STANDARD OF REVIEW

A trial court abuses its discretion if it relies upon an erroneous view of the law. State v. Halverson, 130 Wis.2d 300, 303, 387 N.W.2d 124, 126 (Ct.App.1986). We will sustain a discretionary act if the trial court examined the relevant facts, applied a proper view of the law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. In re Paternity of B.W.S., 131 Wis.2d 301, 315, 388 N.W.2d 615, 622 (1986). Whether sec. 778.06, Stats., requires a trial court to consider certain factors in assessing forfeitures under sec. 144.99, Stats., requires statutory interpretation. We review such questions de novo. E.S. v. Seitz, 141 Wis.2d 180, 184, 413 N.W.2d 670, 672 (Ct.App.1987).

Proportionality Under sec. 778.06, Stats.

Schmitt contends that sec. 778.06, Stats., ² requires the trial court to consider the following factors: (1) the amount of forfeitures assessed against solid waste operators in Wisconsin; (2) the amount of forfeitures assessed against solid waste operators in other jurisdictions; (3) the amount of forfeiture assessed relative to the amount of environmental harm caused; and (4) the amount of forfeiture assessed relative to the degree of culpability of the defendant.

Section 778.06, Stats., contains no statutorily mandated factors. Instead, in assessing a forfeiture, a trial court must exercise its discretion within the mandatory statutory range. State v. City of Monona, 63 Wis.2d 67, 72, 216 N.W.2d 230, 232 (1974).

Schmitt argues that forfeitures should be assessed at a certain "predictable rate," and makes analogies to sentence proportionality in criminal cases "since forfeiture actions have been described as quasi-criminal proceedings." ³ Schmitt relies on Milwaukee v. Cohen, 57 Wis.2d 38, 203 N.W.2d 633 (1973) and Milwaukee v. Wuky, 26 Wis.2d 555, 133 N.W.2d 356 (1965).

Both these cases rely on language in section 66.12(1)(a), Stats. (1961 and 1969), ⁴ which required a defendant charged with a statutory violation subject to a forfeiture to plead "guilty, not guilty or no contest." Cohen, 57 Wis.2d at 42, 203 N.W.2d at 636. "In [sec. 66.12], the legislature has adopted many aspects of criminal procedure in forfeiture actions." Wuky, 26 Wis.2d at 562, 133 N.W.2d at 360. Neither sec. 144.99, Stats., nor sec. 778.06, Stats., are similar to sec. 66.12 (1961 and 1969) in the respects considered relevant in Cohen and Wuky. Even if we were to consider how the proportionality requirement has been applied in criminal cases, Schmitt relies upon an eighth amendment case, Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), for the relevant comparison criteria. ⁵ Schmitt does not claim that the forfeiture violated his eighth amendment rights. Helm is inapposite.

Schmitt also claims that the sec. 778.06, Stats., proportionality requirement mandates a "comparative relation" so that the more severe the offense, the larger the penalty should be. Schmitt concedes that in evaluating the severity of the offense, a court should consider the environmental harm caused and the degree of the defendant's culpability.

The trial court evaluated the severity of Schmitt's offenses. It considered the environmental harm Schmitt caused, and concluded that, although the exact dollar amount would be impossible to ascertain, the record indicated such harm and that a reasonable inference was that the harm had a cost. The court considered Schmitt's culpability, and concluded that Schmitt purposely violated the law over a long period of time, and that Schmitt did not stop violating the law until the court ordered him to. The court considered Schmitt's economic benefits, and noted that he had incurred no site preparation costs on the illegal five and one-half acre section of his landfill. The court also considered mitigating factors, such as weather factors and the DNR's conflicting statements and positions, and concluded that these factors did not negate the violations, although they did mitigate the amounts of forfeiture.

We conclude that the trial court properly exercised its discretion because it examined the relevant facts, applied a proper view of the law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. B.W.S., 131 Wis.2d at 315, 388 N.W.2d at 622.

Schmitt argues that the trial court abused its discretion by not properly considering evidence Schmitt submitted regarding other forfeitures in Wisconsin. The court considered this evidence but concluded that it had little relevance and was entitled to limited weight. ⁶ "It is within the trial court's discretion to decide whether evidence is relevant to any issue in the case." State v. Horn, 126 Wis.2d 447, 457 377 N.W.2d 176, 181 (Ct.App.1985),aff'd, 139 Wis.2d 473, 407 N.W.2d 854 (1987). The trier of fact determines the weight given to evidence. State v. Wyss, 124 Wis.2d 681, 694, 370 N.W.2d 745, 751 (1985). Because the trial court gave rational reasons for its decision based on facts in the record, the trial court properly exercised its discretion in concluding that Schmitt's evidence regarding forfeitures in other cases had limited relevance. Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16, 20 (1981).

Variation of the Amounts of Forfeiture

Schmitt argues that the trial court arbitrarily increased the forfeitures from $50 per day to $100 per day. Schmitt alleges there is no logical basis consistent with sec. 778.06, Stats., for increasing the amount of forfeiture after the passage of an arbitrary number of days. We construe this as an argument that the trial court abused its discretion by not giving reasons for increasing the forfeitures.

We will not find an abuse of discretion if the record shows that the trial court exercised its discretion and there is a reasonable basis for the trial court's determination. Hedtcke v. Sentry Ins. Co., 109 Wis.2d 461, 471, 326 N.W.2d 727, 732 (1982). We must uphold a discretionary decision of the trial court if we can conclude ab initio that there are facts of record which would support the trial judge's decision had the trial court exercised its discretion on the basis of those facts. Schmid v. Olsen, 107 Wis.2d 289, 295, 320 N.W.2d 18, 22 (Ct.App.1982), rev'd on other grounds, 111 Wis.2d 228, 330 N.W.2d 547 (1983). We will affirm a discretionary order if there is any reasonable basis for it. Asbeck v. Asbeck, 116 Wis.2d 289, 295, 342 N.W.2d 750, 753 (Ct.App.1983).

The amounts the trial court assessed Schmitt, $50 or $100 per day of violation, did not necessarily correspond to the amount of economic benefit Schmitt realized by each separate daily violation. ⁷ Such a calculation would be impractical, if not impossible. The same reasoning applies to determining the precise amount of damage each separate daily violation caused the environment. In addition, sec. 144.99, Stats., provides a forfeiture range of between $10 to $5,000 for each violation per day. This reflects the legislature's intention to give the trial court a wide range of discretion in fixing the amounts of forfeitures for ch. 144 violations. Given these factors, we conclude that the trial court is permitted to use the limits provided by sec. 144.99 to fashion an appropriate forfeiture based on the facts of the individual case.

Although Schmitt argues that an increase from $50 to $100...