*1 DeLuca, Respondents. Cudahy, Appellant, v. appeals.] [Two Nos, 1, Argued December November 1970. Decided 374.)
(Also reported in 181 N. W. *2 McCann, by Ray appellant there brief T. was a For *3 argument by McDermott, both of Richard A. and oral Milwaukee. by Peregrine, respondents there a brief
For Hugh Braun, Schimenz, R. Marcuvitz & Cameron and argument Milwaukee, Mr. Braun. of and oral appeal: Wilkie, on J. are raised Two issues holding appellant in Did the trial err prove a of ordinance here involved must convincing satisfactory evidence, by clear, rather and general pre- fair of a than civil standard lesser ponderance? holding the ordinance
2. Did the trial court err in part respon- showing of required a of finding a of to sustain violation? dents preponderance Proper proof standard of of —fair evidence. for violation that in forfeiture actions
It is well settled ordinances, municipal the violation where involves statutory counterpart, the re- which has ordinance quired burden of a actions, is that of other civil preponderance mere of the evidence.1 involving On hand, the other in an ordi- those cases statutory thereby nance counterpart, has a mak- which ing statute, parallel a criminal under a act “clear, satisfactory, the burden of is that of convincing evidence” middle often referred to “the proof.” specific inquiry
Thus our must be ascertain whether statutory parallels “keeping there is a offense which charge against disorderly of a house” made the defend- ants. originally
Defendants
this case were
with
guilty
keeping
disorderly
and found
house
viola-
Cudahy.
tion of the ordinance of the
Cud-
ahy
obviously distinguishes
“disorderly
ordinance
prac-
place
from a
ill
house”
“house of
fame or
Lutton,3
in Hawkins
v.
court,
tice of fornication.”
This
interpreting
distinguished
when
an ordinance which also
“disorderly
“place
ill fame” or
house” from
“house
prostitution”
stated:
“. . The trial court
.
held that
house could not
considered
ill
it was
house
unless
prostitution,
fame,
for the
as-
resorted to
purpose
signation, fornication, gambling, etc.,
nance
.
The ordi-
.
.
against disorderly
directed
houses
places,
houses
independent
question
they are
whether
purpose
places
fame,
of ill
to for the
resorted
persons
prostitution, etc.,
or for
resort of
ill
*4
conversation, or
fame or ill name or dishonest
common
prostitutes. A
of which
house the inmates
behave so
neighborhood
badly
the
become a nuisance to
as to
law,
disorderly house,
esteemed,
a
at common
so
1
414,
Nergaard
(1905), 124
102 N.
899.
v.
Wis.
W.
State
(1966),
596, 599, 142
30
N. W. 2d
2Neenah v. Alsteen
Wis. 2d
(1965),
687,
generally, Madison v.
27 Wis. 2d
232. See
Geier
691-693, 135
N. W.
3 (1897),
95
94 way kept or scandal- such a as disturb one which is particu- a public generally, or inhabitants ize neighborhood, passers-by. And seems . . . lar or the may main- keeping be complaint for that a tained such neighborhood by proof person in the one annoyed, the acts done community if or or disturbed good annoy citi- were of a nature as tended such 4 zens.” Hence, premises may house without be gambling.5 being place prostitution or dealing type appears with the There to be statute specifi- activity here involved. is there Nor statute dealing houses,” cally “disorderly the Cuda- does with exception hy city possible of secs. ordinance, with declaring premises for 280.10, Stats.,6 “used 280.09 and assignation prostitution” to purpose lewdness, bringing providing action for the nuisances enjoining permanent scan- abatement and keeping prohibit therein. The statutes dalous activities 7 gambling place,8 place prostitution and further or a materials,9 penalties possessing provide obscene for those “perform [ing] in including pictures,10 and for motion 11 performance.” any How- lewd, obscene or indecent ever, with conduct which were not defendants statutes, any of a violation of these would also constitute presented not sustain and the would evidence charge. such specific conclude, therefore, that since action does constitute forfeiture not
involved to a of an crime under the in addition statutes 4 pages 497, Id. at Disorderly S., p. House, 5 27 C. J. sec. 1. 6 280.10, “Disorderly house, caption Stats., reads: see. action for abatement.” 7 944.34, Stats. Sec. 8 945.04, Stats. Sec. 9 (1) (a), 944.21 Sec. Stats. (1) (b), 944.21 Stats. Sec. (1) (d), Stats. Sec. 944.21
95 ordinance, proof properly required burden of the City Cudahy ordinary in this case is the civil standard “preponderance of the require, of the evidence.” To as City did the court, trial that establish the violation satisfactory, “the middle of “clear, burden” con- vincing” evidence, was error.
Knowledge required necessary knowledge as element — present here. Cudahy
thinkWe that clear it that 15.03 is Ordinance (1) (a) explicitly requires knowledge disorderly of the proprietor activities order for a in! landlord or to be guiltyi maintaining found keeping, being or connected with, contributing support disorderly to the of a language house. The provides of the ordinance disorderly that others with the connected do not knowledge have to have of the activities in City order to be convicted under that ordinance. Cudahy council drew that in relation distinction so that charges unquestionably to the two involved here there requirement knowledge. was the properly Thus we conclude trial court re- quired showing part de- in order for them fendants to be under convicted however, conclude, ordinance. because the misapplied requiring trial court the burden of charges prove to the “middle burden of proof,” did the trial find absence here. The trial court said: major concern to court in “What is this case intelligent,
is that seems close incredible that two businessmen, brothers, successful the DeLuca such as placidly could a bar sit at for at minutes and be least goings taking place just unaware that few feet on were these away. very asking perilously It comes close overly simple, naive, the court to be to be to be credible. produced However, under here, the evidence that *6 being proof is, the comes of what it with the burden brought by action to the the this conclusion and orders that against Cudahy the de- two of be dismissed fendants.” knowledge finding under the think is a of
We this by preponderance of proof fair minimum standard of de- entirely possible the it that the While is evidence. knowledge activities fendants had no advance portion planned by of es- group that rented a their the had question the defendants tablishment, there is no that being and of the of the nature of films shown girls. go-go put performance the the dance By Judgments the with instructions reversed Court. — entry judgment of conviction to the remand causes against the defendants. two (concurring). and T. JJ. Hansen, Beilfuss Connor distinguish municipal or no valid reason see little to We statutory counterparts that have with those ordinances proof require do as to different that not burdens so the classifica- ordinance. The to establish municipal for a tion forfeiture ordinance is distinctive enough proof. require a to uniform burden of Madison v. Geier of the dissent in
The admonition 687, 701, 702, 761, is (1965), 135 N. W. 2d 27 Wis. here: demonstrated appears will bur- it there be one “Henceforward that proof crimes den of in forfeiture cases which involve proof not which do different burden of in those ready there is reference source involve crimes. Since to crime, involves we determine whether ordinance uncertainty anticipate among will create distinction Presumably litigants. will have to counsel determine statute book to whether the ordi- scrutinize the precise set forth in the nance violation same legislature.” by the terms anas enactment necessity applying bur- different Not will upon statutory dependent counterparts proof dens believe, error, will, it seem lead to we confusion legal layman needlessly technical and those of the adopted ma- profession alike. Under the rule as greater met obtain jority, a must be parking than will to a conviction for some ordinances keeper under an man brand like under consideration. This should ordinance the one required permitted. not nor adopt burden described would middle based Geier, supra, Madison v. forfeiture cases municipal
upon ordinances. majority present In case concludes con- events must have had defendants *7 stituting disorderly under the minimum and that sufficiently proved. been has respect, agree opinion in but would with that step that under take it one further. We believe proved middle burden violation established. Respon- Company, d/b/a Kornitz, Ewert Kornitz & others, Appel- Earling dent, v. Inc., Hiller, & Ewert, Defendant. : lants Argued December November 1970. Decided
No. 403.) reported W. 2d (Also in 181 N.