State v. Hall

Plaintiff-Respondent, Wisconsin, State

v. Darryl Defendant-Appellant-Petitioner. J. Hall,

Supreme Court argument September No. 94-2848-CR. Oral 24, 1997. January 1996. Decided (Also 778.) reported in 557 N.W.2d Wilcox, J., dissents. J., join. Crooks, J.

Steinmetz and For the there defendant-appellant-petitioner were Buting, Jerome F. Pamela S. Moorshead and briefs by Buting Williams, S.C., & Robert R. and Brookfield Glynn, Shellow, Henak arid S.C., Shellow & Milwaukee and oral Jerome F. & Robert argument by Buting R. Henak.

For the the cause was plaintiff-respondent argued Posner-Weber, M. assistant Gregory attorney gen- eral, on the with whom brief was James E. Doyle.

Amicus curiae filed by brief was Michael J. Fitz- & gerald Coffey, Coffey Milwaukee for Geraghty, the American Civil Liberties Union of Wisconsin Foun- dation and Wisconsin Association of Criminal Defense Lawyers. BABLITCH,J. WILLIAM A. J. Hall Darryl

¶1. challenges constitutionality ("the law"), cited full below.1 Hall was 1Tax on Controlled Substances. subchapter: In 139.87 Definitions. this (2) person pos "Dealer" means a who in violation of ch. 161 sesses, manufactures, produces, ships, delivers, transports,

imports, person grams sells or transfers to another more than 42.5 marijuana, marijuana plants, grams of more than 5 more than 14 containing psilocin psilocybin, of mushrooms or more than 100 milligrams any containing lysergic diethylamide of material acid or grams any more than 7 of other schedule I controlled substance or per schedule II controlled substance. "Dealer11does not include a lawfully possesses marijuana son who or another controlled substance. (3) "Department" department means the of revenue. (4) 161.01(14). "Marijuana" meaning has the under s. (5) "Schedule I controlled means a substance substance" listed in s. 161.14. (6) a "Schedule II controlled substance" means substance listed in s. 161.16. Imposition. imposed dealers, upon 139.88 There is on state, by occupational acquisition possession an or them in this following at the rates: (1) gram gram marijuana, pure part or Per or of a of whether impure, possession, $3.50. measured in the dealer's when three-year convicted and sentenced to two consecutive concurrently, law, and, sentences under the two (Id) marijuana plant, regardless weight, Per of counted possession, when in the dealer's $1000. (lg) gram part gram parts Per or of a of mushrooms or of containing psilocin psilocybin, pure mushrooms or whether or impure, possession, $10. measured when in the dealer's (Ir) milligrams part milligrams Per 100 or of 100 containing lysergic diethylamide, pure material acid whether or impure, possession, measured when in the $100. dealer's (2) gram part gram Per or of a of other schedule I controlled substances, pure or substances schedule II controlled whether or impure, possession, measured when in the $200. dealer's payment. department 139.89 Proof of The shall create a system providing, affixing displaying stamps, uniform labels paid. or other evidence that the tax under 139.88 has been Stamps payment or other evidence of shall be sold at face value. No may possess any dealer schedule I controlled substance or schedule 139,88 paid II controlled substance unless the tax under § has been it, by stamp on as evidenced or other official evidence issued subchapter payable the DOR. The tax under this is due and imme- diately upon acquisition possessing or of the schedule I controlled state, substance or schedule II controlled substance this and the department taxpayer's property. that time has a lien on all of the payments subject per Late are to interest at the rate of 1% month part person may person or of a month. No transfer to another payment. or other evidence of immunity. Acquisition stamps 139.90 No or other evi- paid dence that the tax under s. 139.88 has been does not create immunity prosecution. for a dealer from criminal Confidentiality. department may 139.91 not reveal administering subchapter, except facts obtained in department may publish statistics that do not reveal the identities may required provide any identifying of dealers. Dealers not be to purchase stamps. information in connection with the of No infor- by department may mation obtained the be used a dealer in any proceeding indepen- unless that information has been obtained, dently except proceeding involving in connection with a possession of schedule I controlled substances or schedule II con- paid trolled substances on which the tax has not been or in connection with taxes due under s. 139.88 from the dealer. consecutive 30-year sentences delivery cocaine base convictions. The delivery convictions, and their 139.92 Examination purposes of records. For the of deter- mining the amount of paid, tax that determining should have been paid whether or not the collecting dealer should any have or taxes 139.88, department may examine, taxes under s. the or cause to be examined, books, any papers, may records or memoranda that be making determinations, relevant books, those whether the papers, records or property memoranda are posses- the of or in the sion person. of the dealer or department may another require The any person the having attendance of knowledge or information that may relevant, compel production books, be papers, the records or by persons required attend, memoranda testimony take on mat- determination,

ters material to the subpoenas issue and administer oaths or affirmation. Appeals, (1) presumption, 139.93 administration. taxes, penalties and subchapter interest under this shall be assessed, collected and reviewed as are income taxes under ch. 71. (2) department If the finds that the collection of the tax subchapter jeopardized under by delay, department may is the issue, person by registered in or mail to the last-known address of taxpayer, proceed the subsection, a notice ofits intent to under this may payment taxes, make a demand for penalties immediate ofthe 71.91(5) proceed by and interest due and the methods under s. (6). taxes, penalties If the immediately and interest are not paid, department may the taxpayer's seize ofthe assets. Imme- nullify diate seizure taxpayer's right of assets does not to a hearing department's on the determination that the collection of jeopardized by delay, the assessment will nullify be nor does it taxpayer's right post days giving a bond. Within 5 after notice of proceed subsection, its department shall, intent to under this person, provide mail taxpayer writing or with its proceeding reasons for under this subsection. The warrant of the department department may shall not issue and the not take other taxpayer days action to if collect within 10 after the notice of proceed given intent to under this subsection is furnishes a bond in amount, exceeding tax, double the amount of the and with department approves, such sureties as the of revenue conditioned upon payment finally of so much of the taxes as shall be deter- due, together days mined to be with interest thereon. Within 20 proceed after notice of given by intent to under this subsection is department revenue, person against depart- whom the 30-year sentences, are not before us. The stamps illegal requires purchase tax dealers to stamps drugs possession and affix the to the their may appeal proceed ment intends to under this subsection to the department department's the determination that the collection of jeopardized by delay. Any the will be statement that assessment department may prima files admitted into evidence and is be Taxpayers may appeal it facie evidence of the facts contains. by department adverse determinations to the circuit court for County. Dane (3) by penalties department taxes and assessed are The taxpayer presumed to be valid and correct. The burden is on the invalidity show their or incorrectness. (4) department may request department The of adminis- sell, 125.14(2)(f), tration the methods under s. all assets to. (2). seized under sub. (5) may injunction prevent delay an No court issue or levying, penalties assessment or collection of taxes or under this subchapter. (6) enforce, duly department shall and the authorized employes department necessary police powers have all of, prevent subchapter. violations department 139.94 Refunds. If the is determined to have owed, department collected more taxes than are shall refund per part the excess and interest at the rate of 0.75% month or of a department final. If month when that determination is has sold property taxes, penalties to obtain and interest assessed under this taxes, subchapter penalties and those and interest are found not to due, department give proceeds be shall the former owner the the sale when that determination is final. (1) Any possesses 139.95 Penalties. dealer who a schedule I controlled substance or schedule II controlled substance that does paid bear evidence that tax under s. 139.88 has been shall 139.88, pay, penalty equal in addition to the tax under s. to the department penalties tax due. The collect under this sub- shall chapter in the same manner as it collects the tax under this subchapter. (2) possesses A dealer who a schedule I controlled substance or schedule II controlled substance that does not bear evidence that paid the tax under s. 139.88 has been be fined not more than $10,000 imprisoned years or than for not more or both.

drugs. argues Hall law is unconstitu- privilege tional because it his violates self- incrimination under both the and the federal Wiscon- (State) argues The sin constitutions. State ofWisconsin provides stamp protection law that is coexten- privilege against sive with the self-incrimination and therefore is constitutional. We conclude that because stamp protect against fails derivative proceeding, compels, use, in a criminal it of information privilege against it violates the self-incrimination and Although identifying is therefore unconstitutional. and prosecuting drug purpose dealers is a laudable which whole-heartedly applauds, legislature this court pur- failed to use constitutional means to achieve this pose. reluctantly drug We therefore strike down the tax stamp Accordingly, law as unconstitutional. we reverse. undisputed. 2. The facts are The State enacted requiring purchase stamps

lawa "dealers" to tax drugs possession stamps in their and to affix (3) makes, Any person falsely fraudulently who or alters or procures any stamp counterfeits or or same to be done or causes the utters, publishes, knowingly passes any who or tenders as true false, a altered or counterfeit or who affixes counterfeit II to a schedule I controlled substance or controlled schedule possesses substance or I who schedule controlled substance or false, schedule II substance altered controlled to which a or coun- $10,000 terfeit than is affixed be fined not more or imprisoned year years than one than for not less nor more or both. taxes, penalties If 139.96 Use of revenue. and interest are arrest, subchapter depart- collected under this as a result of an taxes, pay penalties ment of revenue shall interest to the agency state or local the arrest law enforcement made associ- ated with the revenue. (1991-92) (all Stat. ch. IV further Wis. subch. references to the noted. are 1991-92 Statutes unless otherwise drugs. illegal "dealer," "a defines as The statute their person possesses, manufac- of ch. who violation imports, transports, produces, ships, delivers, tures, person more than. . .7 to another or transfers sells grams or I controlled substance other schedule Stat. Wis. II controlled substance." schedule 139.87(2). stamps by purchasing paid § tax is (DOR). by Department Stat. ofRevenue Wis. issued drugs stamps Drug § affixed to the tax must be 139.89. paid. § 139.89. Failure the tax has been for which subjects pay required to incarcera- the violator years, fine of not to exceed five tion for a term not $10,000, or both. 139.95. more than charged, arrested, and convicted 3. Hall was contrary delivering base, to Wis. cocaine two counts of 161.41(l)(cm)4, §§ 161.48, 161.49, and and two Stats. stamp failing comply law, with the counts of contrary 139, ch. IV. On December to Wis. Stat. subch. County, Judge of Dane 3, 1993, in the circuit court Callaway Hall to two consecutive Richard J. sentenced stamp three-year law convictions sentences for concurrently, 30-year and, consecutive sentences two delivery convictions. Affirming stamp convictions, the Hall's law 4. ¶ appeals the statute would be concluded that court it if the State could use information unconstitutional derivatively against compelled directly either or proceeding face, and, on its dealer in a criminal protect derivative use of com- statute failed to pelled Hall, 2d information. State v. 196 Wis. (1995). 867-68, However, the court 540 N.W.2d "saving appeals applied statute, construction" to the confidentiality provision prohibit interpreting compelled and derivative use of direct both consequently providing protection and Hall with coex- privilege against tensive to the self-incrimination. 5. Both the United States and Wisconsin Con- protect persons compelled stitutions from state self- incrimination. Whether or not a statute violates these provisions presents question constitutional of law that we review de McManus, novo. State v. 2dWis. (1989). 113,129, 447 N.W.2d 654 (1) presents 6. This case three issues: whether stamp § unconstitutionally Wis. Stat. 139.89 of the law (2) compels self-incrimination; if so, whether Wis. confidentiality provision 139.91, Stat. stamp provides protection

law, on face, its Hall with as protection privilege against broad as the offered (3) self-incrimination; not, and if whether the confiden- tiality provision may be construed a manner which provides protection privilege.2 coextensive with the unconstitutionally We conclude that law compels confidentiality provi- self-incrimination, provide protection sion of the law fails to privilege, coextensive with the and the provide cannot be construed to constitutional protection.

I. First, 7. we consider whether Wis. Stat. unconstitutionally § compels 139.89 of the right against Hall to incriminate himself. The self- 2 challenges Hall also jeopardy law on double grounds. Because we hold the law unconstitutional on grounds, self-incrimination we need not address the double jeopardy issue. by right guaranteed

incrimination is a fundamental the Wisconsin Constitu United States and both the 80, Grant, 77, 2d 264 N.W.2d tions. In re 83 Wis. (1978). Amendment's self-incrimina Under the Fifth any compelled person. "[n]o in .shall be clause, . tion against himself...." U.S. a witness criminal case be provides that Const., Our state constitution amend. V. any .may compelled "[n]o person. criminal case . be against or herself." Wis. Const. to be a witness himself 8(1). analysis Although of this I, much of art. Supreme opinion States Court is derived from United construing privilege, the Fifth Amendment decisions determining protec analysis applies in the same by privilege. Schultz, v. afforded Hall's state State tion (1989); v. 408, 416, 2d 448 N.W.2d 424 State 152 Wis. 226, 259-60, 421 N.W.2d 77 Sorenson, 143 Wis. 2d (1988). privilege against 8. The self-incrimination apprecia- person a real and has

be invoked whenever compelled apprehension ble against him her in a criminal could used or state be privilege proceeding. 2d at 81. The Grant, 83 Wis. only use of information which extends not to the direct support conviction, but also to derivative use of would using compelled fur- evidence, i.e., information to such necessary a link in the chain of evidence nish Darryl compli- prosecution. that his Id. Hall contends provided have the State ance with the tax law would reasonably supposed could information that he prosecution him in a for viola- have been used Stat. one of several crimes contained Wis. tion of Uniform Controlled Substances ch. Wisconsin's agree. Act. We Supreme 9. The United States Court has care-

fully impact considered the of tax laws on Fifth guarantees against Amendment self-incrimination. Leary (1969); v. United States, 395 U.S. 6 Marchetti v. (1968); United States, 390 U.S. 39 Grosso v. United (1968). States, 390 U.S. 62 In Marchetti, the defendant violating wagering was convicted of federal statutes required persons engaged professional gam- which bling pay occupational register an tax and to complained Internal Revenue Service. Marchetti statutory obligations these violated his Fifth right against Amendment self-incrimination because they significantly enhanced the likelihood that those complied provisions successfully who prosecuted with the would be violating anti-gam- state and federal bling agreed, identifying following laws. The Court determining constitutionality criteria for of a tax (1) challenged grounds: statute on Fifth Amendment regulated activity "permeated whether the is in an area statutes," with criminal and the tax aimed at individu- (2) "inherently suspect als activities;" required, pain whether an individual is under of crimi- prosecution, provide person nal information which a might reasonably suppose prose- would be available to (3) cuting authorities; and whether such provide significant would link in a chain of evidence tending guilt. Triplett, to establish Sisson v. (Minn. 1988) Marchetti). (explaining N.W.2d prongs These criteria form the three of the Marchetti If met, test. all three are the tax statute violates the privilege against self-incrimination. 10. The

¶ appreciable, fear of self-incrimination must be real merely imaginary possibility an danger danger. Grant, 2d at 82. The In re 83 Wis. ordinary appraised the reference to should be with things, ordinary operation not in course of of law the imaginary danger character. Id. an or insubstantial of liberally privilege in favor construed the This court has protect. right intended to Id. We it was of analyze which principles, stamp light these and in law apply three-prong Marchetti test. requirements that two 11. Hall contends

¶ against privilege self-incrimina- violate his law (2) (1) purchase requirement; and tion: requirement stamps to a that must be affixed drugs. argues requirements vio- He that these dealer's (1) ways: by requiring privilege dealer, late his two incriminating purchasing stamps, provide to when against by prosecutors be used information that (2) by providing proceeding; and vital him in a criminal prosecutor's a dealer who in a case evidence stamps complies the statute and affixes the with (a) knowledge drugs illicit because such acts show: (b) substances, and intent to items are controlled possess controlled substances. analysis begins prong with the first 12. Our - activity regulated in an area

Marchetti whether the is " 'permeated statutes,'" and the tax with criminal " 'inherently suspect of criminal aimed at individuals (citation Marchetti, 390 U.S. at 47 omit- activities.'" ted). disagree law meets this Few would permeated and federal are criterion. State addressing the issue of controlled statutes e.g., 161; See, Stat. ch. 21 U.S.C. substances. Wis. imposed only upon seq. §§ 801, Moreover, the tax et is only those which, definition, its includes "dealers" persons possess drugs in of ch. 161. Per- who violation lawfully possession are sons of controlled substances specifically exempted provisions. from the tax Wis. 139.87(2). Legally § Stat. held controlled substances subject are to taxation. Wis. Stat. 139.88. Without question, law is directed toward a select group inherently suspect of criminal activities. prong We turn the second of Marchetti: might reasonably suppose whether the dealer provided by purchase, information either the or affix display requirements requires person, under pain prosecution, provide of criminal might reasonably suppose which the individual would prosecuting be available to Here, authorities. we ana- lyze separately purchase, display and the affix and requirements of the law. purchase require First, 14.

¶ we examine the Heredia, In ment. State v. 2dWis. 493 N.W.2d (Ct. 1992), (1993), App. denied, cert. 113 S.Ct. 2386 distinguished appeals the court of Marchetti and held payment provision drug that the of tax Wisconsin's stamp statute, face, its on does not violate a defen privilege against compelled dant's constitutional self- that, incrimination. The Heredia court concluded wagering Marchetti, the unlike tax in the permits contemplates anonymous pay and "both the subject and, therefore, ment of the tax ..." does not comply provisions compelled those who its to with self- Heredia, incrimination. 172 Wis. 2d at 485. In so con cluding, appeals the court of relied on the law's confidentiality provision, § 139.91, Wis. Stat. which provides required "[d]ealers provide that not be to any identifying information in connection with purchase agree stamps." of We with Heredia court's stamp purchase requirement conclusion that is conclusion However, at our we arrive constitutional. reasons. for different compelled incriminating of the nature 15. requirement purchase is evi- under purchase tax requirement that dealers

dent. The stamps by compels themselves to incriminate them drug they government telling dealers. that are required stamps of a Requesting in the amount tax pos- one an admission that itself, is, in and dealer illegally case, drugs In this to do so. or intends sesses purchase required more than Hall the statute Contrary stamps. the State's conten- in tax $20,000 stamp purchasers dealers, it are tax that not all tion buying person suppose that a common sense defies stamps pos- does not of tax $20,000 worth more than drugs. illegal possession contemplate or sess expresses stamp purchase Consequently, a tax quantity of con- at least with dealer's involvement commensurate the number of trolled substances stamps purchased. purchases a dealer The fact that knowledge

stamps his or her also indicates possessed of the fact of of the substance nature statutes, possession. Under our controlled substances proof or defendant knew believed is an element a controlled substance was substance proved v. the state. State must be the crime that (1990). Poellinger, 493, 451 N.W.2d 752 153 Wis. 2d stamp purchase compliance the law's Thus, with incriminating requirement of admission the involves possession of controlled the crime of crucial elements of substances. pur- course, the is, It of irrelevant 17.

¶ verbally. give might this information chaser never speak Fifth Amend- as under the Actions as loud words (1988). ment. Doe United States, 201, 210 v. 487 U.S. In (1976), States, Fisher v. United 425 U.S. acknowledged producing physical Court act response subpoena evidence in aspects to a has communicative compliance of its own because with the sub poena tacitly taxpayer concedes that the believes that papers subpoena. are those in described The act purchasing similarly stamps discloses the tax payer’s knowledge incriminating and intent. The compelled communication is because the statute man purchase upon stamps pain dates dealer that a 139.95(2). punishment. § criminal Wis. Stat. purchase Next, 18. we consider whether the requirement danger creates a substantial prosecution. information will be for available criminal imposed Under the law, a tax is on dealers paid immediately upon acquisition pos- that must be or § session of a controlled substance. Wis. Stat. 139.89. pay exposes year Failure to the tax the dealer a five 139.95(2). prison fine, § term, or Wis. Stat. The both. purchasing DOR has established two methods of stamps. purchase stamps Dealers must either person may purchase at a DOR location, or dealers stamps by option, mail mail. Under the order dealers supply must the DOR a name and address. The stamps are not transferable. 139.89. The determina- question provides tive is DOR whether the method of purchasing stamps compel pro- that does not dealers against vide information available them in a criminal proceeding, thereby allowing pass law to constitutional muster. exception provides an

"independently obtained information." Wis. Stat. Independently § 139.91. obtained information be taxpayers proceeding. used pro- nothing example, law in the § For 139.91. independently using information from hibits State agent outside by placing a enforcement obtained Consequently, drug stamps are sold. where the location surveilling agent DOR's tax enforcement a law stamp purchase identify, photograph, or outlet could taxpayers home, even car, to their to their follow manufacturing plant. information this The their gathered in criminal used could then be officer taxpayer. § 139.91. A dealer proceeding drug stamps person a serious risk purchasing in faces incriminating prosecutors providing with information. stamps allowing by to be tax Nonetheless, by by

purchased a means which DOR offers mail, the providing drug stamps may purchase without dealers incriminating There- prosecutors information. danger will be available that the information fore, the prosecution not substantial. is for purchase by provision the dealer to select mail allows (or payment name his or her that will reveal method of only pseudonym) the DOR. The confi- address and prohibits expressly dentiality provision statute revealing facts, as the dealer's such the DOR from administering the tax address, obtained name stamp. Therefore, Stat. 139.91. Wis. proceeding. prosecutors in a criminal

is not available by provides Consequently, which an avenue the statute stamps purchase incriminat- without dealers unavoidably Although ing runs a dealer themselves. incriminating he or or herself when himself the risk of payment person, purchases she confidentiality provi- coupled procedure with the mail protection dealer of constitutional sion assures the against By providing a dealer with self-incrimination. protection by privilege coextensive to that offered the purchase requirement self-incrimination, the stamp standing pass law, alone, of the would constitu- tional muster. However, 21. it does

¶ not stand alone. Purchas- ing stamps step statutory the is but the first process. purchased, drug stamps Once tax must be displayed illegal drugs. affixed to and on the dealer's § Wis. Stat. 139.89. We must therefore consider the constitutionality requirement. display of this affix and incriminating display The requirement nature of the affix and question. affixing

is without The act displaying stamps incriminating and tax is an tes- knowingly timonial communication that the dealer and intentionally possesses particular quantity of unlaw- drugs. stamp signifies ful Possession of the possessor's knowledge ofthe nature ofthe substance he - possesses possession drug or she an element of a - charge requires and thus self-incrimination. In Supreme Marchetti, the United States Court struck wagering down the federal tax law on self-incrimina- grounds. recognized tion The Court that evidence of possession wagering stamp highly of a federal tax is incriminating Likewise, testimonial evidence. the affix display requirement of the law has the consequence incriminating direct and unmistakable complies dealer who with the law. danger 22. The that the information will be prosecution available is also evident. Tax stamps readily are available assist the State in establishing that defendants knew that the substance possession in their was a controlled substance. Under proof statutes, our controlled substances defendant knew or believed that the substance was á controlled substance is an element of the crime Poellinger, proved by 2d 153 Wis. at the State.

must be 493. pre- confidentiality provision not does The 23. using presence of affixed the State from

vent stamps against not therefore does save the dealers and recognized, appeals while As the court of law. prohibits the use Wis. Stat. 139.91 administering by tax, the DOR in obtained presence stamps tax is not "information of affixed Department." Hall, at 196 Wis. 2d obtained using prohibit from State does prove knowledge taxpayer's stamps acquisi- does of substance. Nor nature the controlled immunity stamps from for a dealer tion of tax create prosecution. Wis. Stat. 139.90. nothing pro- Furthermore, the statute 24. ¶ using stamps affixed to the State from the hibits unstamped prosecution for substances in a controlled stamped drugs. example, if found For the State unstamped during stamp drugs arrest, an the law stamps using prevent the from would not State knowledge illegal of the defendant's establish unstamped drugs. possess nature of and intent Consequently, required, pain under of crimi- Hall was illegal prosecution, drug stamps to affix his nal reasonably drugs, supposed have and he could presence stamps against of the affixed could be used by Accordingly, prosecuting Hall has him authorities. prong satisfied the second of the Marchetti test. Finally, prong we consider third of ¶ compelled could Marchetti, whether the provide significant tending of link in a chain evidence pro- guilt. words, to establish In other does the statute compelled dealers use tect from derivative appeals acknowledged information? The court of stamp only provides law, face, on its a dealer with - - protection from direct not derivative use of informa- by through compliance tion obtained the DOR with the agree. Hall, statute. 196 Wis. 2d at 866-68. We stamp compelled law allows the State to use informa- investigative tion as an lead to information used proceeding. dealers in a criminal Thus Hall has prong Having satisfied the third ofMarchetti. satisfied prongs all three Marchetti, oí we conclude that the unconstitutionally compels self-incrimi- preexisting statutory nation, absent some confidentiality immunity provision providing protec- or equivalent tion to that the Fifth Amendment.

II. brings 26. This us to our second issue: whether confidentiality provision § 139.91, Wis. Stat. provides protection law, on face, its Hall with as protection privilege against broad as the offered self-incrimination. privilege replaced by 27. The can be a sufficient

grant immunity. Kastigar v. States, United 406 U.S. (1972). question Therefore, becomes whether provides immunity. privilege such The against properly self-incrimination be " protection granted asserted if other is which 'is so scope as broad to have the same extent in and effect' as privilege (quoting Marchetti, itself." at 390 U.S. 58 Hitchcock, 547, 195, Counselman v. 142 12 U.S. S.Ct. (1892)). protection If 206 tax- exists, coextensive payer reasonably suppose could not incriminating information would in be available use proceeding. argues The State that the

77 confidentiality provision provides Hall with coex- law's disagree protection. the State. tensive We privi- of the First, we examine the extent 28. ¶ privilege against lege. scope self- The of the requires protection against as derivative incrimination incriminating information. This of as direct use well privilege against any protects that the wit- disclosure reasonably used, be or could lead to ness believes could prose- in a criminal used, that could be other evidence Kastigar, U.S. at 444-45. The cution. only of ..." a "link in the chain evidence

need against furnish States, 341 United the defendant. v. Hoffman (an (1951); Kastigar, at 460 406 U.S. U.S. investigatory lead). compliance with the Where necessarily requirements would result in of a statute self-incriminating proper of communications, a claim privilege against self-incrimination constitutional the provides prosecutions under that a full defense to statute. Although in the court Heredia relied on the confidentiality provision

anonymity requirement ofthe confidentiality, legislative a closer to find intent of inaccuracy of the statute reveals examination acknowledged by interpretation. As the court confidentiality provision appeals, the only law, face, on its the direct use of infor- bars prosecution. in Hall, a dealer a criminal mation 2d a lack of 196 Wis. at 867-68. law exhibits ways. protection in from derivative use several immunity exception in 30. The breadth danger real infor- Wis. Stat. 139.91 creates a taxes are not mation will be used situations which confidentiality provi- at issue. The first sentence of the prohibits revealing the DOR from facts obtained in sion stamp the administration of However, law. provides penalty statute no for unlawful dissemina- Furthermore, tion. provision the last sentence of the same by

allows information obtained DOR be proceeding involving posses- used "in connection with a sion of schedule I. . .or schedule II controlled paid. substances on which the tax has not been . ." as well as "in connection with taxes due s. under 139.88 prosecution § from the dealer." Thus, 139.91. for possession with intent to deliver cocaine for which no paid, any tax has been information learned from a paid stamped, defendant had other, who the tax on long cocaine could be used or him her as as he paid directly or she had no tax on the cocaine involved possession charge. example, pos- in the For if a dealer grams buys stamps sesses 25 of cocaine, but tax only grams, 15 the statute does not bar the DOR clerk identifying having by from admitted, the dealer as application stamps, possession grams for the of 15 knowledge cocaine, and thus and intent unstamped grams illegal are cocaine and the dealer possess ability intended them. The ofthe State to use payment the information even obtained when distinguishes taxes is at issue the statute from upheld statutes which have been in other states. For a cases, discussion these statutes and see below.3 brief, its In the State contends the Wisconsin "guarantees law is because constitutional 139.91 the same § given protection by confidentiality provisions in other states where the compliance laws were found to be in requirements." comparison with fifth amendment A of the Wis upheld by consin law and the in the cases cited statutes fallacy of the State's illustrates this assertion. proceedings

Section 139.91 two lists which (1) department obtained be revealed: some that, while providing 31. We conclude law, face, on its fails to provide the protection, stamp on involving possession of controlled substances proceedings (2) in paid, proceedings and connec- the tax has not been which confidentiality stamp the law. The with taxes due under tion by stamp upheld in the cases cited the provisions the laws of However, exception. none of the all include the second State State, upheld by that have been as stamp referred to the laws self-incriminating constitutional, compelled, allow drugs on which proceedings involving possession of to used in be Thus, by cases cited paid. none of the has been use the extent statutes that allow derivative State involve stamp by the Wisconsin law. allowed State, cases, cited the statutes quote We these plain the they upheld to make fallaciousness which in any information contained such argument: "[N]or State's can against any in criminal report return be used a dealer a or involving a proceeding, except proceeding in connection with information is inde chapter, due under this unless such taxes Revenue, Briney Dept. v. State 594 So. pendently obtained." (Ala. 1991) 120, App. (quoting Ala. Code 2d 122 Civ. 1990)). (Cum. Supp. Dept. v. Ind. 40-17A-13 1975 § Clifft Revenue, (1995), upheld stamp State 310 Indiana's 660 N.E.2d pertinent informa provides, part: in "Confidential law which acquired by department may not used to initiate or tion be an prosecution for an offense other than offense based facilitate (West. chapter." on a of this Ind. Code Ann. 6-7-3-9 violation 1994). stamp prohibits any informa Supp. "explicitly Iowa's law 421A, dealer, compliance pursuant from a with tion obtained any in being against or the dealer from released used involving except proceeding in proceeding connection with Godbersen, v. 421A." State chapter 493 taxes due under N.W.2d 421A.10). (1992) (citing Code 857 Iowa Davis, v. P.2d State stamp at law issue (Utah 1990), confidentiality provision. The failed to contain a upheld stamp it made no Appeals Utah Court of law because the taxpayer protection coextensive with the priv- ilege self-incrimination. Because confidentiality does not provision provide adequate law does protection, not meet Hall's consti- tutional challenge.

provision identifying disclosure of prose- information to However, cuting reviewing law, authorities. when the Utah court subsequent legislation had benefit of to aid interpretation legislative its intent. The 1989 amendment provides: Utah's "None of the information contained form, a report, or return or otherwise obtained from dealer may against in connection with this section be used the dealer any in proceeding obtained, criminal it independently unless is except in a proceeding connection -with involving taxes due chapter under this from making the dealer the return." Id. (1989)). (quoting Utah Code Ann. 59-19-105 This § amend- ment, significantly different confidentiality from Wisconsin's provision, by upheld Supreme was the Utah Court Zissi v. (1992). Utah, Tax State Comm'n P.2d 848 of Finally, the law, State stamp contends the Kansas upheld by Supreme Court, the Kansas is "almost identical" to stamp the Wisconsin law because "information obtained' through compliance with the act any could not be used in crimi proceedings, except involving nal those act violations the itself." at State's Brief 12. The State is correct that the Kansas explicitly prohibits report information contained in a required "against or return the to Kansas act be used proceeding, dealer independently unless obtained, except in a proceeding involving connection with taxes due under this act taxpayer making from the the return." State Durrant, (1989) 1174, 1178 (quoting v. 769 P.2d Kan. Stat. Ann. (1988 Supp.)) explained, 79-5206 As we have this confidenti ality provision is not "identical" or even identical" from "almost law before us. I

I I to third conclusion leads us The above ¶ confidentiality provision be issue: whether provides protection coex- in manner which construed privilege against self-incrimination. tensive with urges this stat- us to "save" unconstitutional The State provide by construing direct and it to both ute immunity. use derivative strong recognize presumption of

¶ 33. We constitutionality guide our examination of that must requires presumption Hall demon- This to this statute. unconstitutionality beyond a the statute's strate Arreola, 2d v. 199 Wis. doubt. Brandmiller reasonable (1996). presumption 894, But 544 N.W.2d high constitutionality presents hurdle, not an insur- Although this court will strive mountable barrier. legislation against it so as to constitu- construe save carry will not attack, tional point it must perverting purpose of a statute. The statute argues. cannot be construed as the State before us problem this: the lan- 34. The crux of the is provide taxpayers guage law fails incriminating any protection use of derivative information. a be held valid when- 35. While statute should

¶ interpretation by it construed to ever fair be beyond purpose, go constitutional courts cannot serve a legitimate province it, the construction save meaning plain, cannot be read into is words where purpose saving one other for the or it or out of it possible County, v. 256 alternative. Heimerl Ozaukee (1949) (citing Reynolds State ex rel. v. 151, Wis. 155 (1931). face, On 495, 501, 503 its Sande, 205 Wis. plain reading provides protection of the statute no against derivative use argues 36. The State that the Court's decision

in United States v. Video, X-Citement Inc., 115 S.Ct. (1994), bridge great gap allows this court to plain meaning pre- between the of this statute and the sumption constitutionality. Indeed, the court of appeals applied "saving" construction to this statute. Hall, 196 Wis. 2d at 867-68. It ruled that Wis. Stat. precludes using 139.91 the State from gained stamp purchaser's as a compli- result of a tax directly ance derivatively, statute, with the either or including presence stamps, of affixed in a subse- quent drug prosecution against taxpayer. Id. Although appeals justifies the court of this construc- tion in opinion, a well-written and well-reasoned we reluctantly judi- must conclude the exercise of leap cial restraint we cannot that far. 37. To read the law to bar derivative, as rewriting use,

well as direct would be statute, merely correcting a scrivener's error. X-Citement (Scalia, dissenting) Video, 115 S.Ct. at 474 J., Rather argument, prefer than the State's we rea- Court's soning in United Albertini, States v. 472 U.S.

(1985), language where the Court refused to add to an unambiguous statute:

Statutes should be construed to avoid constitutional questions, interpretative but canon is not judiciary license for the language to rewrite enacted legislature. Any conclusion, other pur- while porting to an injudicial restraint, be exercise would trench upon legislative powers vested Con- gress. .Proper . . respect powers implies those '[statutory begin construction must language employed by Congress and the assump- meaning language of that ordinary

tion that (Cite legislative purpose.' accurately expresses omitted.) every indication as we are with 38. Presented

¶ legislature purpose had no itself that the in the statute primary nevertheless, this court's use, to bar derivative purpose interpreting is to effectuate the a statute Hopkins, legislature's 168 Wis. 2d intent. State v. (1992). 814, 484 N.W.2d history of a need not look to the 39. The court ¶ face, Protective Ins. clear on its Grosse v. statute Life (Stein (1994) 97, 117, 2d 513 N.W.2d 592 Co., 182 Wis. dissenting). legislative However, even the metz, J. supports history that the the conclusion of the statute legislature use, direct not deriva intended to bar but tive use. history supports legisla- legislative 40. The derivative, use for direct, intent to bar but not

tive (1) Legislative history reveals that the reasons: several original drug drafting legislature's purpose identity drug stamp dealers. tax was to learn bill legislature to bar both direct as well Had the intended purpose use, could not have been as derivative (2) legislature early drafts, Even in effectuated. presented self-incrimination law knew yet problems not to dimension, chose of constitutional (3) legislature of how to The was aware revise bill. unambiguous providing clear, statute both draft a immunity, yet not to do chose direct and derivative use so. product is the of several Assembly

attempts to create a the Senate and during special ses- statute. It was enacted legislature part sion of the as of 1989 Act 122, Wis. wide-ranging amalgamation anti-drug of measures. History legislature's pur- 42. reveals that the

¶ pose drafting original drug stamp tax bill towas identity drug Representa- learn the of In dealers. Legislative tive Foti asked the Reference Bureau to drug Request draft a tax statute. Draft Form for 1987 sought problem "hav[ing] AB 519. He to solve the of no drug knowledge they control over dealers or of who are" by "[making] pay drugs." them a tax on their AB Request following excerpt 519 Draft Form. The from a request memorandum attached to the draft acknowl- edges supporters' the bill's intent to allow the State to drug drug use the tax law obtain information about dealers. only objection

The real anyone had to it was its constitutionality they but gotten have around that. drug dealer, A according bill, to the go can to the Department of Revenue and obtain a and the information kept has to be They confidential. can- police not call the and tell them that so and so has a drug stamp. gives tax It them pro- 5th amendment does tection. It legalize possession. If a dealer is caught selling drug people law enforcement can then contact department revenue and obtain information on file. The idea behind the get at bill is the dealers. Compelling drug provide dealers to self-

incriminating an is unconstitutional "knowing drug means who the dealers are." The activity prevent unlawfulness of an does not the activ- ity being imposing However, from taxed. a statute a tax activity on unlawful cannot be sustained when the collecting methods of the tax are conflict with the privilege Marchetti, 390 self-incrimination. may lawfully tax controlled at 44. the State U.S. While constitutional. substances, the means used must be raising purpose lack of a revenue 44. The legisla- weight underlying to the act adds further purpose history expressing the unconstitutional tive "get[ting] dealers] [drug "knowing at are" who drug stamp [them]." Yet the tax law is a tax law. legislature expected to raise reve- this tax law never every draft of the nue. The fiscal estimate purpose. producing a lack of revenue bills exhibits ("[b]ased experience of Estimate on the Act 122 Fiscal stamps of tax would other states.. .revenues from sales generally likely [and] minimal actual tax collections be only portion a small of the total assessments amount tax is diffi- since collection of the controlled substances cult."); (estimating 1989 AB 633 Fiscal Estimate revenues); SB 356 Fiscal Esti- "minimal" sales (anticipating minimal minimal sales and mate penalties); 1989 SB 295 Fiscal Estimate collection of (anticipating impact "no fiscal

that this bill would have government."); 1987 AB 519 Fiscal on state or local [sic] ("likely that the revenue from the Estimate that small."). very pause and reflect be We must would history legislative a tax reveals that statute was when expectation that it raise enacted without the revenue. troubling Finally, in most is the revelation ¶ legislative history legislature that was well confidentiality provision to craft a that aware of how provide dealers with both direct and derivative would immunity. only statute, use does the Minnesota Not request Bill to the draft form of 1989 attached legislature confidentiality provide a model of a provision prohibits the direct and derivative both compelled by stamp law, the use of information legislature itself, in the law, same act as the immunity provides created an clause that direct both immunity. § and derivative use Wis. Stat. 972.085. copy confidentiality provision 46. A the Minnesota tax statute 297D was attached to request Assembly the bill form for 1989 Bill 633. This confidentiality provision Minnesota states that report [no] information contained in such a or return or against obtained from a dealer be used any dealer in proceeding, criminal unless indepen- obtained, dently except connection with a proceeding involving due chapter taxes under this making from the dealer the return.

Compare this with the last sentence of Wis. Stat. § 139.91:

No information department may obtained be used a dealer proceeding unless has independently been except proceeding obtained, in connection with a involving possession of schedule I controlled sub- stances or schedule II controlled substances on paid which the tax has not or in been connection with taxes due under s. 139.88 from the dealer. added.) (Emphasis prohibits The 47. Minnesota statute the use of

¶ compelled by stamp except its law proceeding involving against in a taxes due the dealer making § In contrast, the return. Wis. Stat. 139.91 compelled by stamp allows the use of information proceedings involving in taxes due from the dealer proceedings involving and in controlled substances on paid. Consequently, which the tax has not been stamp prosecutors law allows to use information com- - - stamps pelled the act the affixed dealers proceedings involving unstamped drugs. in criminal Herein lies the law's fatal flaw. legislature 48. The ratified this

¶ constitution- ally provision despite posed flawed awareness that it potential problems, light and in of a solution to these problems. Legislative memorandum A to the Reference ("LRB") regarding Bureau from the DOR the confiden- tiality provision directs the drafters' attention to the potential privilege for claims of the self-incrimination by drug dealers: difficulty

The in maintaining confidentiality could result in claiming dealers the requirement pay the controlled substances tax violates their con- right against stitutional self-incrimination. There have challenges been successful of similar taxes on illegal activities both state and federal courts. Eng 49. Memo from DOR's Braun to the LRB. legislators they treading 17,1987. June knew were constitutionally And, treacherous waters. when enact- ing they law, had before them a statute upheld by which had been scrutinized and the Minne- Supreme just year sota Court Sisson, before. they N.W.2d 565. Yet chose not to follow this model. legislature Instead, our chose to enact the law's confidentiality provision originally as written. Finally, striking most illustration of legislative intent is the contrast between the "use" lan- guage § language in Wis. Stat. 139.91 and the "use" § clearly pro- Wis. Stat. 972.085 of the same act which immunity. vides direct and derivative use Section provides: 972.085 Immunity from criminal prosecution or forfeiture - provisions [listed

under listing seq.] 139.87 et provides immunity only from the use of the com-

88 pelledtestimony subsequent in or evidence proceedings, immunity or forfeiture as well as from compelled the use evidencederivedfromthat tes- timony or evidence. statute, 51. This included in the same act as

¶ stamp provides law, direct and both derivative use immunity. Obviously, legislature knew how to immunize dealers under Wis. Stat. 139.91 from direct yet language. use, and derivative chose different Con- sequently, we arrive at the inevitable conclusion that legislature confidentiality pro- knew how to craft a prohibiting yet deliberately use, vision derivative chose not to do so. language 52. We find no basis of the stat- legislative history saving

ute nor its for the applied appeals. construction the court of fairly possible, construed, 'Astatute must if be soas only to avoid conclusionthat it is unconsti- grave upon tutional, but also doubts difficulty score.'. . .But avoidance of a not be will pressed point disingenuous to the Here evasion. Congress the intention of the is revealed too dis- tinctly permit ignore problem ,[T]he us to it. . . must be facedand answered. (1970)

Welsh, States, 333, II v. United 398 U.S. (Harlan, concurring) (quoting J., J. Cardozo in Moore (1933). Rose, Ice Co. In Cream v. 289 U.S. history language drug case, tax plainly legislature demonstrate that never prohibit com- intended to derivative use of information pelled by law. properly 53. A drafted law is purposes

constitutional and will serve societal violating which it is intended without constitutional protections. Drug See State A Taxes: Tax We Can't Rutgers (analyzing Afford, L.J., Vol. 23:657 the chal- lenges facing legislature drafting drug a proposing and a model law that meets the constitu- (1992). challenges) Drug tional The Wisconsin Tax Stamp agree Law is not such a statute. We that if the legislature way had written the statute the appeals likely it, court of rewrote it would resolve the remedy However, constitutional infirmities. rests legislature. legislature's with the It is the function to amend the statute where amendment is found neces- sary. plainly includes, Where a statute does, as this one only immunity compelled from direct use of incriminat- ing information, we fail to see how the court would be justified adding following limitation, thereto the provide immunity 'furthermore, we from derivative use.' This in effect is what the State would have us do. Tempted confidentiality as we be to rewrite the provision, appeals legisla- as the court of did and as the very likely setting dangerous ture will, we would be precedent judicial usurpation to allow such a of the legislature's role. The checks and balances needed to government stay sustain a democratic our hands from pen. plainly § 54. We hold that Wis. 139.91, Stat. unambiguously provides direct, but not derivative immunity. Consequently, pro- use the statute fails to protection privilege vide Hall with coextensive with the Accordingly, reject self-incrimination. we appeals' court of construction of the statute and con- privilege clude that law violates Hall's against self-incrimination.

By appeals the Court.—The decision of the court of is reversed. 0dissenting.) WILCOX, 55. JON P. J. I dissent

because I conclude that this court must construe the confidentiality provision found in Wis. Stat. 139.91 (1993-94)1 (the "confidentiality provision") provide protection coextensive with the Fifth Amendment. I agree display requirement the affix and (the law") drug stamp "stamp tax law2 would unconsti- tutionally compel self-incrimination if it the allowed any to State use a as crimi- evidence proceeding payment nal not related to of the tax. majority misinterprets legislative However, the the history duty preserve ofthe law and fails in its the statute. majority 56. The concludes that "the affix and

display requirement of the law has the direct consequence incriminating any and unmistakable of complies Majority op. dealer who with the law." at 75. confidentiality provision It further asserts that the provide protection does not coextensive the Fifth Majority majority op. 76, Amendment. at 82. The inter- confidentiality prets provision the to allow the State to stamps illegal drugs use found on some to establish knowledge illegal the defendant's of the nature of and possess illegal drugs. Major- unstamped intent to other ity op. majority at 78-79. The bases this conclusion on language confidentiality provision. Id. confidentiality provision 57. The of Stat. Wis. provides: § 139.91 stated, statutory Unless otherwise all future references

are to the 1993-94 volume. Stats, (1993-94). Wis. ch. subch. IV may

The not facts department reveal obtained administering subchapter, except this that department may publish statistics that do not may of not reveal identities dealers. Dealers be required provide any identifying information in purchase stamps. connection with the of infor- No department may mation obtained be used any proceeding a dealer in unless obtained, independently that information has been except proceeding involving in connection with a I possession schedule controlled substances or schedule II controlled substances on which the tax paid has not been or in connection with taxes due under s. 139.88 dealer. from added.) (Emphasis majority emphasized reads the exception that mean the State use informa- through tion obtained administration this subchapter prosecution possession in a for criminal illegal drugs Majority stamped. op. were at according majority, affixing Therefore, 78-79. to the displaying stamps would constitute incrimi- nating majority I oneself. believe misinterprets provision. language confidentiality First, 58. of the

provision unambiguously exception does not create an proceedings possession illegal drugs. for criminal for legislature "except did not state: in connection proceeding possession," legisla- awith instead the for "except proceeding ture stated: in connection a involving possession [illegal drugs] on which the tax added.) paid. (Emphasis has not been ..." Wis. Stat. logical meaning passage § 139.91. The of this is that independently used, information not can obtained be possession proceeding, pro- not in a criminal but in a ceeding provides: § under 139.95. This section

(1) Any possesses dealer who a schedule I con- trolled substance or II schedule controlled substance that does not bear evidence that the tax under s. 139.88 has paid pay been shall in addition any 139.88, penalty equal under s. a to the tax due. The department penalties shall collect under this subchapter the same manner as it collects tax under subchapter. this

(2) A possesses dealer who a schedule I controlled substance or schedule II controlled substance that does not bear evidence that the tax under s. 139.88 paid $10,000 has been be fined not may more than imprisoned years or for not more than 5 or both. (3) Any person falsely makes, fraudulently who or any alters or stamp procures counterfeits or or utters, causes the same knowingly to be done or who publishes, passes false, or tenders as true altered or counterfeit or stamp who affixes a coun- terfeit to a schedule I controlled substance or schedule II controlled possesses substance or who a schedule I controlled substance or Schedule II con- false, trolled substance which altered or counterfeit is affixed be fined not more $10,000 imprisoned than or for not more than 10 years or both. added.) The of this section is to set

(Emphasis purpose forth the for violations of the penalties stamp law. In addition to these a dealer who penalties, does not with the have to comply pay law will due under taxes 139.88. taxes Proceedings unpaid § are referred to in the second of the to the part exception or in confidentiality provision: "... connection with taxes due under s. 139.88 from the dealer." Stat. Wis. 139.91. under each Accordingly, interpretation, serves distinct exceptions purpose.

93 confidentiality pro- 60. This construction of the supported by legislative history. lay vision is also To groundwork analysis present for our we must first legislative history an of the overview law. eventually passed The bill was the attempts result of several to enact such a The law. first subject bill introduced in Wisconsin on this was 1987 legislative history AB 519. The of this is bill relevant confidentiality provision 1989 Wis. Act 122 because the language3 may has similar and it because have been original language source for much of the in the subject 1989, In law. several more bills on this (1) proposed: were 1989 295, SB introduced on October (2) Spec. 3, 1989, Oct. 1989 6, Sess. SB introduced on (3) Spec. 12,1989, October Oct. AB 6, 1989 Sess. intro- (4) 24,1989, duced on 356, October 1989 SB introduced (5) 1, 1989, 633, on November 1989 AB introduced on (6) Spec. 2,1989, November and Oct. 1989 AB 12 Sess. (the bill"), budget "Governor's 1989 introduced on Each November of these bills included confi- dentiality provisions similar to the one found Wis. Finally, Stat. 139.91.4 9, 1989, on November Oct. 3 confidentiality The provision of 1987 AB 519 stated: department may 77.97 CONFIDENTIALITY. The not reveal facts required contained in a return under s. 77.94. No information con- tained in such a return be used the dealer in proceeding, indepen- unless that information has been dently obtained, except proceeding involving in connection with a possession of untaxed controlled substances or taxes due under s. making 77.93 from the dealer the return.

4 following confidentiality provision was included in 1989 SB AB 633: department may 77.97 CONFIDENTIALITY. The not reveal required 77.94, except

facts contained in a return under s. department may publish statistics that do not reveal identities Spec. 1989 Sess. Substitute Amend. 1 to Oct. 1989 (the Spec. AB Sess. "substitute amendment to the of dealers or may contents of individual returns. Dealers not be required provide any identifying information on returns. No may in against contained a return be used the dealer any in proceeding, criminal unless that information has been inde- pendently obtained, except in proceeding connection with a involving possession of untaxed controlled substances or taxes due under s. making 77.93 from the dealer the return.

1989 SB slightly 356 contained a provision: different department 77.97 may CONFIDENTIALITY. The not reveal required facts contained in a return under s. 77.94. No information may against contained in a return any be used the dealer in crimi- proceeding, nal unless that independently information has been obtained, except proceeding in involving posses- connection with a sion of untaxed controlled substances or taxes due under s. 77.93 making from the dealer the return. The confidentiality provision found in Oct. 1989 S.S. SB 6 and provided: Oct. 1989 S.S. AB 6 department 139.91 may CONFIDENTIALITY. The not reveal administering

facts subchapter, except obtained in that the department may publish statistics that do not reveal the identities may of required provide dealers. Dealers any identifying not be purchase information in stamps. connection with the No infor- department may mation against obtained be used a dealer in any proceeding criminal indepen- unless that information has been dently obtained, except proceeding in involving connection with a possession of untaxed controlled substances or taxes due under s. making 139.88 from the dealer the return.

Finally, budget the Governor's bill following contained the provision: department may 77.97 CONFIDENTIALITY. The not reveal required 77.94,

facts contained in except a return under s. department may publish statistics that do not reveal the identities may dealers or the contents of individual returns. Dealers not be required provide any identifying information on returns. No information contained in a return be used the dealer proceeding, criminal unless that information has been inde- pendently obtained, except in proceeding connection with a bill") eventually budget introduced and was legis- considering Act 122.5 In enacted as 1989 Wis. history Act a review of each lative of 1989 Wis. language similar is relevant as each used these bills many directly the drafts of earlier bills.6 used legislative majority contends that the confidentially history supports its conclusion that the provision the use of derivative information does bar Majority proceedings not related to the tax. op. majority this conclusion on three at 84. The bases "(1) history legisla- Legislative points: reveals original drug stamp drafting purpose the ture's (2) identity drug to learn the dealers. ... bill was of legislature early drafts, Even in knew problems presented of self-incrimination yet dimension, chose not to revise constitutional (3) legislature of to draft a bill. The was aware how unambiguous providing clear, statute both direct and immunity, yet Id. at use chose not do so." derivative using conclusion, In to reach such a 84. these bases majority misinterprets overemphasizes por- and some

involving possession or taxes due of untaxed controlled substances making the return. under s. 77.93 from the dealer 5 confidentiality provision slightly Although the was 39, changes Act these do not affect our amended 1991 Wis. analysis. 6 previous can 1989 AB 12 contains drafts that be Oct. S.S. through LRB to 1989 SB traced reference number language Amendment 1 to AB 12 uses Oct. 1989 S.S. Substitute drafting AB 6. The from Oct. 1989 S.S. SB 6 and Oct. 1989 S.S. of 1989 AB 633. record of 1989 SB 295 contains Simi draft record, AB contains a draft larly, drafting of Oct. 1989 S.S. Finally, according drafting SB to the record 1989 of 1989 295. language AB 519 and also uses from SB 356 is a redraft of 1987 AB a draft of 1989 633.

tions of the legislative while history other, ignoring more pertinent, information. 62. The majority's first point, the legisla-

ture's purpose drafting tax bill was to learn the identity drug dealers, is on based the draft form and a request supporting memorandum found in record of AB drafting at 85. Majority op. In support assertion, majority's the majority cites the following description of the problem that bill sought address from the Drafting Request Form: "We have no control over dealers or knowledge Id. at 85. The who are." they also cites majority part a memorandum that was attached to the draft request. Id. memorandum The states:

I talked to Mark Warnsing, Legislative Assistant Sen. Barkhausen in Illinois about the drug bill. . . . He said it is a bill that pretty is hard to against. vote only objection anyone real had to it was its constitutionality they gotten but have around that. dealer, A drug bill, according go to the can to the Department of Revenue and obtain a stamp and the information has to be kept They can- confidential. police not call the and tell them that so and so has a drug stamp. gives It them 5th amendment protec- tion. It legalize does not possession. If a dealer is caught selling the law people enforcement can then contact the department [sic] evenue any obtain information on file. The idea behind the get bill is to at They the dealers. are not concerned with an individual who drugs possession has in his up because it would fill An courts. amendment would make the stamps cost of the 4 times the face value of each instead you He said if 100%. any questions have to call him. by drafting information from the record cited

When the majority appears isolation, in it is read confidentiality provision of 1987 AB 519 was not provide protection intended to coextensive with majority fully However, the fails to Fifth Amendment. legislative history AB of 1987 519. consider A consideration of all the material con- drafting in tained record reveals Representative Foti intended to introduce a bill that in mirrored the one that had been introduced Illinois. confidentiality significant This is provision because the Illinois provides protection coextensive with the in the clearest of terms. The lan- Fifth Amendment guage confidentiality provision of the Illinois can be drafting AB Illi- in the record for 1987 519. The found provision provided: nois public

Section 13. Neither the Director nor employee may report reveal facts contained in a or Act, any nor can information required return in such a or return used report contained be such proceeding, the dealer unless obtained, independently has been except proceeding involving in connection with a taxpayer making due under this Act from the taxes the return. unambiguously provision, precludes

This which information, direct and was the basis use of derivative confidentiality provision in 1987 AB 519. for the 64. Further indications this bill was can found in the intended to mirror the Illinois bill previously be drafting request mentioned form and accompanied drafting request memorandum which Contrary majority's interpretation, form. to the apparent purpose para- of the memorandum was to phrase explanation an Illinois given by Warnsing, legislative bill Mark assistant closing Illinois State Senator Barkhausen. In the line drafting attorney memorandum, the is told: "[Warnsing] you any questions if said call have him." phone Warnsing's A number was next written to Mark typed Additionally, name in the response memorandum. in question drafting request in which phone persons asked "Provide names and numbers following we information," contact for more response typed was Barkhausen, in: "Sen. suggests State of Illi- drafting attorney nois." This evidence was told to draft a bill similar to the one from Illinois. significant suggests Representa- This is it because that confidentiality tive Foti wanted the hill to include a provision provided protection the same as the one confidentiality provision pro- in the bill—a Illinois protection vided coextensive with the Fifth Amendment. legislature's 65. Additional evidence of the provide protection

intention to with the coextensive drafting Fifth Amendment can be found record of quoted First, 1987 AB 519. after the above memoran- May 20, 1987, dum on was written and after the Draft Request May 21, 1987, Form was filled on out (DOR) Department of Revenue sent a memorandum to (LRB) Legislative drafting Bureau Reference attor- ney AB for 1987 519. This memorandum addressed problems several technical with an draft of earlier including problems confidentiality provi- bill part: sion. The memorandum stated relevant The confidentiality provision clearly specify should rules for how the the controlled tax dif- substances general fer from the confidentiality rules 71.11(44). general Under under s. department taxes, confidentiality rules for other state to the request access officials can enforcement records. department's confidentiality could maintaining in difficulty

The requirement claiming in dealers result their con- substances tax violates pay the controlled There self-incrimination. right against stitutional similar taxes on challenges of have been successful in and federal courts. illegal both state activities confidentiality and a desire concern over This shows a the Fifth statute did not violate ensure that Amendment. legisla- stronger An indication even by Analysis LRB. Part found in the

ture's intent can be analysis is "Information from return stated: of this any pro- in criminal not be used confidential ceeding except the tax itself." This those related to begin- explanation at the included as an statement was ning to all circulated the bill draft which was analysis legislative was written offices. attorney known bill; he should have who drafted by Representative same Foti.7 This intended what was language analysis LRB of the Gover- used in the was budget and the substitute amendment 1989 bill nor's budget source of Wis. bill which is the direct the 1989 every legislator likely that almost 139.91. It is Stat. analysis voting tax bill. on read this before legis- very strong Accordingly, is evidence confidentiality provision lature intended analysis was included with the A draft of the handwritten drafting record.

preclude pro- the use of information in criminal ceeding related to the tax. majority's 67. The assertion that 1987 AB purpose,

was enacted for an unconstitutional to learn identity prosecutions in dealers for use only tax, not related to legislative history is not conflict with the statute, of that but is also conflict logic. majority's theory This is because the fails to explain why confidentiality pro- the statute included a purpose vision. If the of the statute towas learn the identity of dealers violation of the Fifth Amendment, any confidentiality. there would have been need for no major- In fact, information, the direct use of the which ity precluded by confidentiality is concedes the provision, identifying would be the best means of deal- explanation presence ers. The absence of an for the confidentiality provision the casts serious on doubts majority's the assertion that 1987 AB was drafted purpose and that the enacted was for the identifying using dealers and that information in crim- proceedings inal related the tax. point, majority argues Asa 68. side

¶ the that the raising purpose underlying sug- lack of revenue the act gests purpose identify drug that the of the bill was to Majority op. contrary, dealers. at 85-86. On the merely purpose tells us the was not to just likely purpose raise It is revenue. as that the was simply provide penalties additional dealers identify as that it was them. Finally, majority 69. contends that further purpose legisla-

evidence of the unconstitutional of the provided legislature ture is the fact knew confidentiality provision pro- how to craft that would vide dealers both direct and derivative use immunity. Majority op. support 86-89. In at of this (1) majority Min- fact that the cites contention confidentiality provision in the can be found nesota (2) drafting 633, the fact that of 1989 AB record potential legislature constitutional aware of was through problems is in from DOR that a memorandum (3) drafting the lan- 1987 AB record of provide guage use for direct and derivative used to immunity § 972.085. Id. in Wis. Stat. confidentiality provision Certainly, artfully § could have been more Stat. 139.91

Wis. Min- it differs from the drafted; however, the fact that immunity provisions provision of Wis. and the nesota legislature prove had Stat. 972.085 does not enacting purpose in law. unconstitutional an drafting record of 1989 SB fact, In review legislature a law intended to enact indicates that the draft law. The bill that mirrored the Minnesota request office to the LRB from Senator Te Winkle's drafting attorney states: today, and discussion earlier

In reference to our Winkle, I Te sub- with Senator further discussion request. mit this place stamp legislation drafted to like

We would marijuana Min- that is similar to tax on cocaineand penalty provisions. law, the same nesota's with exception the is that we would like to send The revenue from directly Metropolitan the tax (MEG's) multi-jurisdic- Groups or Enforcement (MJG's) proportion groups incidence to the tional during previ- drug group's the of ous crimein each area

year. changing drafting request the mention of makes no confidentiality using provision or of the information prosecution possession. a criminal

102 Additionally, DOR ¶ the memorandum from drafting majority record of AB 1987 519 that quotes legislature does show was aware of the potential afor conflict Amendment; Fifth how- prove legislature ever, it does not chose to ignore legis- Instead, these constitutional concerns. history stamp lative of the law demonstrates that the legislature attempted provide protection coextensive confidentiality provi- to the Fifth Amendment in the sion and believed that this had been done. strongest 72. The evidence of this intention is language analysis from the LRB which states: may from a

"Information return is and confidential proceeding except be used in those related part to the tax itself." This statement was included as drug of the circulated bill draft for the first tax budget bill, 519, AB bill, 1987 1989 Governor's and budget the substitute amendment to the bill, which the version was enacted as the law.8 Additional evidence of this intention can be found in drafting records for the various bills that were introduced in 1989. drafting Spec. 73. The record for Oct. 1989 part drafting

Sess. AB 6 contained as instruc- "Summary tions a DOR memorandum entitled Proposal." Controlled Substances Tax This memoran- part: dum stated in relevant Confidentiality: Tax information not be pro- revealed or used a dealer in a criminal ceeding, independently unless the information was proceed- This restriction does not apply obtained. 356, It included in 1989 SB SB was also 1989 AB 633.

103 involving untaxed controlled ings possession proceedings. or other tax-related substances confidentiality provision description is A of the similar drafting record for the 1989 found in the budget Governor's proposal, your information from a bill: "Under confidential substance tax return would be controlled any proceeding, not be used in criminal and could except relating to the tax itself." those Finally, drafting an examination of budget 1989 of the substitute amendment to the record comparison language of that bill itself and a bill language budget in the bill with the Governor's legislature attempted to craft an ade- reveals confidentiality provision. confidentiality quate provision budget bill, which was Governor's provided: 8,1989, introduced on November may The department 77.97 CONFIDENTIALITY. in a required not reveal contained return facts 77.94, may except department under s. statistics that do not reveal the identities publish or the of individual returns. Deal- dealers contents may provide any identifying not be required ers on contained information returns. No information in a return be used the dealer unless has proceeding, obtained, independently in connection except been proceeding involving possession of untaxed taxes 77.93 controlled substances or due under s. making from the dealer the return. drafting for the

In the record substitute amendment 8,1989, there is a memorandum dated November from Legislative suggesting DOR to the Fiscal Bureau changes drug stamp provisions to the in the Gover- budget nor's 1989 This memorandum bill. makes specific in the suggestions changes confidentiality- provision: preserve

In order to confidentiality, the return requirement should be eliminated. Dealers should purchase be able to drug stamps tax on a cash basis person in or through the mail having without to a return identify submit which could them as a drug dealer.

Giving Department police powers of Revenue with respect to the would drug Depart- allow the directly ment to enforce the fax without involving law enforcement authorities. This would simply [sic] of [sic] administrative the tax and ensure a higher confidentiality. of level Also in drafting included this record is a written motion by Kunicki Representative that follows the suggestions of DOR: following

Move to make the relating modifications to administration and enforcement of the tax: to Require Department Revenue enforce tax, the provisions specify duly of the that employes Department authorized would have necessary police prevent all powers violation of these provisions. requirement

2. Delete the that must dealers com- plete purchase and submit tax in returns order to drug stamps, and confidentiality amend the bill's provision to eliminate references returns.

Finally, language the substitute amendment reflects changes: these may reveal department not facts in obtained

administering subchapter, except that do may publish statistics department may Dealers not be of dealers. the identities reveal any identifying information provide required infor- stamps. No purchase connection used department be mation obtained unless proceeding against a dealer obtained, independently has been involving proceeding except in connection with controlled sub- marijuana or of untaxed possession from the due under s. 139.88 or taxes stances dealer. in the confidenti- to returns deletion of references by expressed response

ality provision concerns in to the legislature provides that further evidence DOR confidentiality. complete provide intended the information contained I 75. believe drafting more than sufficient records is the various legislature support intended to that the the conclusion protection provide the Fifth Amend coextensive with legislature's despite efforts to However, ment. provide protection Amend the Fifth coextensive with ambiguity an in the I there is ment, believe confidentiality provision. language As the court astutely pointed appeals 139.91, STATS., out, "While of by prohibits information obtained the use of administering Department tax, Revenue stamps presence is not 'information obtained of affixed department.'" 850, Hall, 196 2d v. Wis. State 1995). (Ct. Although App. this 865, 540 N.W.2d 219 of infor the unconstitutional use read to allow could be department, by anyone gained than the other mation only if a statute unconstitutional can declare this court no alternative. there is viable determining whether statute violates In give great the statute constitution, the court must

106 party challenging deal of deference. The the constitu- tionality prove of a statute has the burden beyond is statute unconstitutional a reasonable doubt. Carpenter, State v. 197 Wis. 2d 252, 263, 541 N.W.2d (1995). challenges 105 Constitutional to a statute must strong presumption constitutionality. overcome a Theil, 695, State v. 188 2d 706, Wis. 524 N.W.2d 641 (1994). In Supreme addition, the United States Court has stated that it must not construe a statute to violate the Constitution if another reasonable construction is Video, available. United v. Inc., States X-Citement 513 (1994); 64, 78, U.S. 464, 115 S.Ct. 472 Edward J. Corp. Building DeBartolo v. Florida Coast Gulf (1988); Council, Construction Trades 485 568, U.S. Bishop National Labor Relations Board v. Catholic (1979).9 Chicago, 490, 440 U.S. The Wisconsin Supreme recognized principle. Court has also Demmith v. Wisconsin Judicial Conference, 166 Wis. (1992) ("The 2d FN 13, 480 M.W.2d 502 court interpret possible, must a statute, if at all in a manner preserve that will the statute as a constitutional enact- ment."); Cissell, State v. 205, 215, 127 Wis. 2d 378 (1985) (There strong presumption N.W.2d 691 ais favoring constitutionality legislative the of a enact-

9 also Burke, Note, See A. United States v. X-Cite Patricia Video, ment Stretching Statutory Inc.: the Limits of (1996) ("The Interpretation?, 937,943 56 La. L. elementary Rev. every rule to, is that reasonable construction must resorted be in order to save a unconstitutionality. statute from This approach only not prudential reflects the concern that constitu needlessly tional not confronted, recognizes issues be but also Congress, Court, like by is bound swears an oath uphold to The lightly Constitution. courts will therefore Congress assume that infringe constitutionally intended to pro it."). tected or usurp power constitutionally liberties forbidden 107 "[t]his to will construe statute ment, and court preserve possible."); Browne v. Milwau it if it is at all 316, 331, Directors, 265 83 Wis. 2d kee Bd. Sch. of (1978) (When legislative a enactment is N.W.2d 559 being unconstitutional, "the rule cardinal attacked as preserve statutory to is to a statute and construction possible do if it is at all to so." find it constitutional (Citations omitted.)); Harvey Morgan, ex. rel. v. State (1966) ("the duty of 1, 13, 139 585 30 Wis. 2d N.W.2d legisla impugn motives this court is not to possible, if construe the statute ture, rather, but to so accepted harmony to it constitutional as find principles.") other states have used this courts of upholding a similar

canon of construction as basis Durant, 1174, v. 769 P.2d laws. See State (Kan. ("This 1989) only has the court not author duty, ity, a such a to construe statute in but also it if the same can be done manner that is constitutional legislature passing apparent within the intent statute."); 448, 454 Garza, v. 496 N.W.2d State ("State (Neb. 1993) presumed to are be consti statutes constitutionally suspect tutional, is and when interpret in a the statute this court will endeavor Constitution."); Zissi v. manner consistent with (Utah 1992) 'n, Tax Comm 842 P.2d State ("[W]e power to save a statute from are mindful of our by limiting unconstitutionality imposing on con it power permits uphold an struction. This us tailoring questionable it to con otherwise statute Constitution, which is what we must form the intended."); legislature presume Davis, State v. (Utah ("Based 1990) upon App. the fore 517, 523 P.2d Drug Stamp going, pre-amendment Utah we find the a constitutional Act can be 'found to come within Tax 108 by construing prohibit any framework,' it to the use of gained purchaser's compli- as result of ance with the act to establish a link in the chain of (citation subsequent drug prosecution." evidence in a omitted)).10 Accordingly, majority's declaration stamp law is unconstitutional is tantamount declaring possible it is not at all for this court to give law a constitutional I construction. disagree. I 78. believe that a construction of Wis. Stat. legislature 139.91 consistent with the intent

would render the law constitutional. It is clear legislative history from an examination of the confidentiality provision provide pro- was intended tection coextensive the Fifth Amendment. Accordingly, confidentiality provi- I would construe the preclude sion to the use of information not independently any proceeding except obtained in those related the tax itself. I am authorized to state that Justice Don- join

ald W. Steinmetz and Justice N. Patrick Crooks dissenting opinion. upheld A number of states have laws relying without on the argument. constitutional construction Briney Dept. Revenue, v. (Ala. State App. 594 So. 2d 120 Civ. Revenue, Dept. v. Indiana State 1991); 641 N.E.2d 682 Clifft (Ind. Triplett, 1994); (Minn. Sisson v. Tax N.W.2d 565 Godbersen, (Iowa 1992). State v. 1988); 493 N.W.2d 852

Case Details

Case Name: State v. Hall

Court Name: Wisconsin Supreme Court

Date Published: Jan 24, 1997

Citation: 557 N.W.2d 778

Docket Number: 94-2848-CR

Court Abbreviation: Wis.