State v. Stoehr

• Decision Date: 25 November 1986
• Docket Number: No. 85-1090-CR,85-1090-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Keith STOEHR, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 177

396 N.W.2d 177

134 Wis.2d 66

STATE of Wisconsin, Plaintiff-Respondent, v. Keith STOEHR, Defendant-Appellant.

No. 85-1090-CR.

Supreme Court of Wisconsin.

Argued Oct. 1, 1986.

Opinion Filed Nov. 25, 1986.

Franklyn M. Gimbel (argued), for defendant-appellant; Franklyn M. Gimbel, Jeffrey A. Kaufman, Marna M. Tess-Mattner and Gimbel, Gimbel & Reilly, Milwaukee, on brief.

Sharon Ruhly, Asst. Atty. Gen., (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

SHIRLEY S. ABRAHAMSON, Justice.

This is an appeal from a judgment of conviction of the circuit court for Kenosha County, James W. Karch, Judge. This court took jurisdiction of the appeal upon certification by the court of appeals. Sec. 809.61, Stats. 1983-84. We affirm the judgment of the circuit court.

The defendant was convicted of two felony counts under sec. 946.13(1)(b), Stats. 1983-84, of performing, in his capacity as a public officer, a function requiring the exercise of discretion on his part with regard to a contract in which he had a direct or indirect private pecuniary interest. ¹ He was sentenced to pay fines of $2500 on each count. The statutory penalty for the crime is a fine not to exceed $10,000 or imprisonment not to exceed two years or both. Sec. 939.50(3)(e), Stats. 1983-84.

In its order granting the certification request, this court expressly limited its consideration of the case to the issue identified in the court of appeals' certification request, to wit: "Whether sec. 946.13(1)(b), Stats., which prohibits a public officer from having a private interest in a public contract, is a strict liability statute, and if so, whether it is constitutional."

Although we limited the issue on certification to the issue of strict liability, we have decided to consider the other two issues raised in this appeal: sufficiency of the complaint and availability of a privilege defense under sec. 939.45(3). This court has jurisdiction to decide these issues. When this court grants direct review upon certification, it acquires jurisdiction of the appeal, which includes all issues, not merely the issues certified or the issue for which the court accepts the certification. Sec. 808.05(2), Stats. 1983-84. Further, the court has jurisdiction over issues not certified because the court may review an issue directly on its own motion. Sec. 808.05(3), 1983-84.

We address the sufficiency of the complaint because this issue can be answered by this court readily and quickly on the record before it. We address the statutory privilege defense issue because, as both parties acknowledged at oral argument, this issue is intertwined with whether sec. 946.13(1)(b) sets forth a strict liability offense and is a constitutional statute. In this case the court may, in all fairness to the parties, decide all three issues without further briefs or argument, because the parties presented all three issues fully to this court.

The circuit court concluded the complaint was sufficient. It further concluded that sec. 946.13(1)(b) does not require the state to prove scienter and is constitutional. The circuit court allowed the defendant to introduce evidence relating to a possible defense of privilege under sec. 939.45(3) but refused to instruct the jury regarding the statutory defense. The record does not reveal whether the circuit court's ruling rests on the conclusion that the statutory defense does not apply to a charge under sec. 946.13(1)(b) or that the evidence in this case did not reasonably require the instruction.

We conclude that the complaint sufficiently states facts to establish probable cause; that sec. 946.13(1)(b) establishes a strict liability crime in that the state need not prove scienter; and that, while we are not fully persuaded that the statutory privilege defense applies to this crime, we are persuaded the defendant failed to present enough evidence at trial to warrant a jury instruction on this defense. Finally, this case does not present the constitutional due process issue the defendant attempts to raise.

I.

The inferences drawn from the facts may be in dispute but the facts developed at trial can be summarized briefly as follows. The defendant was District Director of the Gateway Technical Institute. As District Director, the defendant was to foster, promote and maintain the vocational, technical and adult education system in Kenosha, Racine and Walworth counties and was responsible to a Board of Directors which set policy for the Director to implement. The defendant's job description states he was the chief administrative officer of the District Board, planned the agenda for the Board meetings, participated in Board discussions, made recommendations to the Board, and provided leadership to the Board. The District Board, composed of citizens, met monthly, and the defendant was required to attend these meetings.

Starting in the early 1970's, Gateway embarked on a program to provide vocational and technical assistance to foreign nations. Generally, the foreign entity paid the funds to an intermediary who contracted with and paid Gateway. Gateway created a separate foreign project account for each contract so these monies would be separate from local, state or federal tax dollars or tuition receipts used to run the district's main programs. After Gateway completed a foreign project, the foreign project account balance was transferred to the development fund account, which was used to promote future foreign projects.

At issue in this case are the expenditures from the foreign project accounts and the development fund account to pay honorariums to the defendant who volunteered to participate in the foreign projects programs. The defendant asserted that he volunteered to work on the foreign projects and received honorariums only for work performed during vacation time or his own available time.

The rates for honorariums were set by the "Cabinet," a group of Gateway's principal administrators who met weekly to discuss the day-to-day operation of the district and to make administrative decisions affecting the institution. The defendant was a member and the chairperson of the Cabinet. One witness testified the Cabinet reached decisions on a consensus basis, unless the members reached a deadlock, in which case the defendant made the final decision.

The defendant attempted to show he received the honorariums openly and publicly and the District Board (Board) approved them. At its monthly meetings, the Board reviewed and approved expenditures listed on lengthy monthly bill sheets, which included the honorariums and other payments from the foreign projects and development fund accounts as well as other expenditures. The defendant testified he would tell Board members what an expenditure was for when a Board member asked; the testimony related to questions by a Board member prior to the Board meeting. One Board member witness recalled he asked questions about expenditures prior to the meetings; he knew some expenditures to the director were for expenses but did not remember whether he was told any were honorariums. The defendant testified the business office sometimes prepared the honorarium checks in anticipation of the Board's approval, and this approval was almost universally granted. There was no evidence that the defendant presented to the Board for discussion or approval the practice of paying him honorariums or that the Board discussed or approved his honorariums as separate items.

Finally, the defense presented a number of character witnesses who testified the defendant was honest and trustworthy.

II.

The defendant argues this complaint is insufficient because it does not list any specific discretionary acts, thus omitting an essential element of a sec. 946.13(1)(b) offense. We disagree with the defendant.

The complaint must set forth facts that would lead a reasonable person to conclude a crime had probably been committed and the defendant named in the complaint was probably the culpable party. In Wisconsin, a sufficient complaint must be minimally adequate based on a common sense, not hypertechnical, evaluation of the essential facts establishing probable cause. Sec. 968.01, Stats. 1983-84; State v. Gaudesi 112 Wis.2d 213, 219-20, 332 N.W.2d 302 (1983).

The complaint states that the defendant, as director of Gateway Technical Institute, on various dates "authorized and received ... monies, over and above his normal salary, for work performed in connection with" four public contracts. The words "authorized and received" denote the performance of a function requiring the exercise of discretion; the reader of the complaint could understand that the defendant chose to authorize money paid to himself in excess of his salary, and that his authorization and receipt of these monies were discretionary acts. We conclude the complaint established the requisite probable cause.

III.

We consider next whether a sec. 946.13(1)(b) crime is a strict liability offense. Sec. 946.13(1)(b) provides:

946.13 Private interest in public contract prohibited. (1) Any public officer or public employe who does any of the following is guilty of a Class E felony:

* * *

(b) In his capacity as such officer or employe, participates in the making of a contract in which he has a private pecuniary interest, direct or indirect, or performs in regard to that contract some function requiring the exercise of discretion on his part.

A strict liability crime does not require proof of scienter, or criminal intent. ² On appeal, the parties agree the defendant voluntarily, deliberately, and intentionally committed the acts that form the basis of his conviction. The defendant asserts that sec. 946.13(1)(b) requires the state to prove scienter, and specifically corrupt motive. The defendant contends the state must show he acted with an evil purpose as distinguished from acting without knowing the act was wrong and a punishable crime.

This...