State v. Huebner

Plaintiff-Respondent, Wisconsin, State Juergen Defendant-Appellant-Petitioner.† Huebner,

Supreme Court argument No. 98-2470-CR. Oral March 2000.—Decided June 2000. 2000 WI 59 (Also 727.) reported in 611 N.W.2d September for reconsideration denied †Motion defendant-appellant-petitioner For the there was by Sally Day, Day Sally a brief and Law Mil- Office of argument by Sally Day. waukee, and oral plaintiff-respondent argued For the cause was by Gregory attorney gen- Posner-Weber, M. assistant Doyle, eral, with whom on the brief was James E. attorney general. case, WILCOX, P. J. The issue in this JON object

is whether a defendant who did not to the use of six-person at trial, his misdemeanor as author- 756.096(3)(am), may § ized Stat. a new Wis. obtain holding reliance on State v. Hansford's 756.096(3)(am) is unconstitutional. We conclude that may he not.

I—I February 2. On the defendant Juergen Huebner was tried and convicted oftwo misde- County, meanors in the Circuit Court for Milwaukee Judge. Fiorenza, Clare L. The verdict in Huebner's case by six-person jury, authority under the was rendered 756.096(3)(am)(l995-96).1 § of Wis. Stat. 756.096(3)(am)(1995 96) provided, "[a] Wisconsin Stat. § — jury persons." Section misdemeanor cases shall consist of Essentially subsequently repealed. 756.096 has been the same trial, time this court had 3. At the of Huebner's appeals' accepted of certification of State v. the court question 97-0885-CR, on the of whether Hansford, No. by jury six-person authorized Wis. Stat. 756.096(3)(am) § § I, art. 7 of the Wisconsin violated acknowledges although Huebner Constitution. pending this court the time was before at of Hansford object six-person jury trial, he did not to the use of a his at his trial. 4. On June this court released its holding six-per-

decision in State v. that the Hansford 756.096(3)(am) § son authorized Wis. Stat. guarantee §I, violated the of art. 7 of the Wisconsin Constitution. State v. 219 Wis. 2d Hansford, 226, 243, 580 N.W.2d 171 August 5. On Huebner filed a notice appeal. argument appeal of Huebner's sole on is that though object six-person jury even he did not to the at applies retroactively trial, the time of his to Hansford by six-person jury. invalidate his conviction Huebner challenge raises no other to his conviction. unpublished opinion, ¶ 6. In an the court rejected appeals request Huebner's for a new trial. unpublished slip, Huebner, 98-2470-CR, No. (Wis. 1998). op. App. appeals Ct. Dec. The court of only applies retroactively concluded that Hansford objected cases in which the defendant six-person jury. his trial at The Id. court reasoned that although jurors provides an increased number some advantage advantage defendant, numerical ato 756.06(2)(am)(1997-98). language has been reenacted as See (S. (citing Hansford, 219 Wis. 2d at 229 n.2 WI Order 97-2 Ct. xv). 96-08), Order subsequent All references to the Wisconsin Statutes are the 1995-96 volumes unless otherwise indicated. overturning did not warrant an otherwise error-free objected six-per- trial when the defendant never to the jury. rejected son Id. The court also Huebner's argument that he had received ineffective assistance of counsel, because the court found no reasonable probability twelve-person jury, pro- that a would have duced a different outcome in Huebner's case. at Id. and n.2. granted petition

¶ 7. This court Huebner's review. ¶ 8. objection Huebner concedes that he made no

II six-person jury Furthermore, to the use of a at his trial. any Huebner has abandoned claim that he received Instead, ineffective assistance of counsel. Huebner now asserts that his trial assistance counsel's was neither incompetent Nonetheless, nor deficient. Huebner grant claims that this court should him a new trial under Hansford. support argument,

¶ 9. To this Huebner relies primarily analysis retroactivity on the set forth in Koch, 499 N.W.2d 152 analysis adopted retroactivity Koch, this court Supreme applies that the United States Court to cases appeal. approach, on direct Under this criminal '[A] new rule for the prosecu- conduct cases, applied retroactively tions is to be to all state federal, final, pending yet or on direct review or not exception with no for cases in which the new rule past.' constitutes a "clear break"'with the (quoting Kentucky, Koch, 175 Wis. 2d at 694 Griffith (1987)). According Huebner, 479 U.S. this applies retroactively to his rule means that Hansford case. reasoning in Huebner's is that 10. The flaw Koch, Hansford, and Griffith,

unlike the defendants objection at the trial Huebner made no constitutional principle appellate of court level. It is a fundamental preserved must at the circuit review that issues preserved court, at the circuit court. Issues that are not alleged generally errors, will not be even constitutional appeal. Caban, 597, State v. 210 Wis. 2d considered on (1997). party The who raises an 604, 563 N.W.2d 501 showing appeal of that the issue on bears burden raised before the circuit court. Id. at 604. issue was ¶ 11. have described this rule as the "waiver We preserved that are not rule,"2 in the sense that issues id.; Erickson, are deemed waived. See (1999). rule 758, 766, 596 749 The waiver is 2d N.W.2d merely technicality convenience; or a rule of it is not principle orderly an administration of essential justice. Freytag Revenue, Internal v. Commissioner (1991) (Scalia, J., U.S. 894-95 concur- 501 ringXciting Wright Miller, Federal Practice 9 C. and A. (1971)). promotes § 2472 at 455 The rule and Procedure efficiency "go[es] fairness, heart of both and and 2 recognize labeling this rule the "waiver rale" is We might requiring the rale issue imprecise. It be better to label rule," preservation as the "forfeiture because it refers to the right by rather than the intentional relin forfeiture of a silence Olano, right. quishment of a known See United States (1993); Freytag U.S. v. Commissioner Internal Reve (1991) (Scalia, J., nue, concurring). 501 U.S. 894-95 n.2 However, preservation we often referred to the issue rule have past, rule" in the and we do so here. as "waiver adversary system." the common law tradition and the Caban, 210 2d 604-05; Wis. at see Erickson, also Wis. at2d important 12. The waiver rule serves several

objectives. Raising issues at the trial court level allows alleged the trial court to correct or avoid the error in place, eliminating appeal. the first the need for Erick- gives parties son, 227 Wis. 2d at 766. It also both judge opportunity the trial notice of the issue and a fair objection. to address the Erickson, 227 Wis. 2d at 766. encourages attorneys Furthermore, the waiver rule diligently prepare for and conduct trials. Vollmer v. Luety, 456 N.W.2d 797 Finally, prevents attorneys "sandbag- the rule from ging" failing object strategic errors, or to an error for claiming grounds reasons and later error is Freytag, reversal. 895; 501 U.S. at Vollmer, see also Wis. 2d at 11. For all of reasons, these the waiver rule is essential to the efficient and fair conduct of our adver- sary system justice. of attempt

¶ 13. Huebner does not to show that the appeal constitutional issue he raises on was raised below. He concedes that at the trial court level he acquiesced application in the of Wis. Stat. 756.096(3)(am) to his case. argues

¶ 14. Instead, Huebner that he can cir cumvent the waiver rule because of constitutional Although impor considerations. the waiver rule is an principle judicial tant administration, of it does not apply proceedings. to all defects in trial court Huebner points out that a criminal defendant has certain funda rights may only mental constitutional personally that be waived expressly. Albright, and State v. 2dWis. (1980). 122, 129-30, 291 N.W.2d 487 These fundamen- right rights counsel, of to the assistance include the tal right self-incrimination, and the from to refrain the right ted). (citations by jury. omit- Id. at 130

to have a trial by rights mere failure to forfeited cannot be Such object. right argues to a twelve-

¶ that his Huebner 15. rights. category jury He this falls within member Albright's "the decision whether that cites statement personal jury" by request fundamental, is a trial a Equating Albright, right. 130. 2d at See right jury a right members with a of twelve argues by jury, not forfeit that he could Huebner trial jury right of an in the absence his to twelve-member express, personal waiver. right his to a waiver of 16. Whether Huebner's expressly jury only and could be made member

twelve- requires application question personally that is questions principles. review such We constitutional independently. Reitter, 227 Wis. 2d 595 N.W.2d right jury Albright is states, to a trial As 17. may only fundamental constitutional personally expressly. However, Huebner

waived jurors A six to a trial. has not lost his equivalent trial at all. Huebner to no is not error-free trial six an fair and received otherwise jurors. having Nothing suggests in Hansford having jury jury equivalent six-person no trial is to six-person did not state that

trial at all. Hansford inherently jury procedurally that it is an unfair or is only factfinding held mechanism. invalid Hansford jury six-person with the trial is not consistent that a meaning right jury historical to a trial under art. §I, 7 of the Wisconsin Constitution. Hansford, Wis. 2d at 249. The court reached this conclusion based on a history careful examination of the of the Wisconsin longstanding interpreta- Constitution and this court's by jury §§ tion of the I, in art. 5 and 7. Id. at 242-43. nothing support 19. We find the Hansford six-person

conclusion that the difference between a twelve-person jury trial and a trial is so funda- six-person jury mental that a trial, which was objection express conducted without under the author- ity automatically of a statute, is invalid. point may appear 20. Our conclusion on this Cooley,

conflict with State v. 105 Wis. 2d 642, 645-46, (Ct. 1981). App. 315 N.W.2d 369 See also State v. Wingo, ¶31, 16, 2000 WI 609 N.W.2d (discussing Cooley). However, we conclude that Cooley apply does not to Huebner's case. Cooley

¶ 21. The defendant on trial was second-degree Cooley, sexual assault. 105 Wis. 2d at During jurors trial, one of announced that she mother, knew victim's who was a witness in the judge juror case. Id. at 644. The examined the and juror judge concluded that the was not biased. Id. The therefore denied the defendant's motion to strike the juror grant gave and However, mistrial. Id. the court attorney option removing the defendant's allegedly juror proceeding biased and with an eleven- jury. options, member Id. Faced with these the defen- attorney proceed dant's chose to with the eleven- jury. member Id. appeal, argued 22. On the defendant personally expressly

because he did not waive his to a full members, twelve the eleven-mem- jury jury to a trial. his constitutional ber violated agreed appeals that the and concluded Id. The court of by jury safeguards procedural a trial waiver of jury equally apply mem- a full of twelve to waiver of Cooley, Because 2d at 645-46. bers. personally to a his not waive defendant did appeals jury, reversed the court twelve-member Id. at 646. defendant's conviction. six-person in Huebner's

¶ 23. Unlike Cooley jury in not author- was case, the eleven-member Cooley by any Instead, involved ized statute. statutorily the defendant's to which deficient allegedly attorney agreed biased avoid an in order to juror. holding Cooley's agree that when with We give up a defendant to itself has induced

the trial court statutory right to a twelve-mem- and constitutional his jury, made waiver must be the defendant's ber Wingo, expressly. personally 2000 WI See also proce- think that the same However, we do not at 17. authorizes a when a statute dure must be followed case, In Huebner's than twelve members. of fewer expressly recently a six- authorized enacted statute person jury. these limited cir- conclude that under We object use of a failure to to the cumstances, Huebner's six-person jury as a waiver of his constitu- can function objection. tional undeveloped reject Huebner's 25. We also six-person jury

argument violated his trial process guarantees procedural the United due As Constitutions. and Wisconsin States Hansford entirely six-person jury consistent with trial is noted, a Hansford, the United States Constitution. (citing Florida, 399 Williams v. 241-42 and n.14

at (1970)). addition, U.S. 78 invalidation of Hansford's 756.096(3)(am) proce- Wis. Stat. was not based on the process guarantee dural due of the Wisconsin Constitution. Huebner has not established that his six- person jury provided trial him with insufficient due process under the federal or state constitutions. applies

¶ 26. We hold that the waiver rule objection Huebner's constitutional to the use of a six- person jury By failing objection at his trial. to raise his six-person jury, to the use of a Huebner forfeited his twelve-person jury. to a ) HH —i

I—I course, 27. Of even when- the waiver rule applies, may this court nevertheless exercise its discre- tionary power judgment grant to reverse the and a new justice. urges in the interests of Huebner this discretionary power court to exercise its to reverse his apply conviction to his case Hansford retroactively. Appellate power ¶ courts to consider have appeal. issues raised for the first time on Vollmer, See 13; Caban, at 210 Wis. 2d at 609. Under may § 751.06, Wis. Stat. this court exercise its discre- (1) judgment tion to reverse a circuit court whenever it probable justice any is has for miscarried, reason (2) controversy fully or whenever the real has not been tried. argues

¶ 29. Huebner that we should reverse his analogous conviction because his case is to State v. appeals applied Benzel, in which the court of a decision retroactively of this court to reverse a defendant's con- 2d 583 N.W.2d Benzel, 220 Wis. viction. 1998). (Ct. App. analogous case. to Huebner's is not 30. Benzel charge a statute based on of a was "convicted Benzel drug constitutionally invalid," the that has been found stamp Thus, 2d at 591. Benzel, 220 Wis. law. tax miscarriage jus- represented a conviction Benzel's that could not on conduct was based tice; his conviction constitutionally punished. contrast, Id. at 592. challenge under which the statutes does not Huebner his conviction to overturn He asks us he was convicted. procedural he did not defect which of a because object trial. at the time of appeals agree with the court 31. We complains

procedural of does not Huebner defect that The use of a six- his conviction. reversal of warrant twelve-person person did not rather than integrity of Huebner's fundamental undermine the op. unpublished slip 3 n.l. Huebner, at trial. See application of a consti- the Rather, "this case concerns principle not affect the basic that 'does tutional (quot- factfinding process accuracy at trial.'" Id. 592). ing that the 2d at We conclude Benzel, 220 Wis. require justice exercise our do not us to interests of discretionary power conviction. to reverse Huebner's justice in this case Instead, interests of objections that are rule that adherence to the demand on not considered at the trial court will not raised why appeal. rule is the waiver This case demonstrates judicial efficiency and fairness of the to the essential process. 756.096(3)(am), § the stat- Stat. 33. Wisconsin six-person trials in authorized

ute 7,1996.1995 cases, on June was enacted misdemeanor in effect for Thus, statute had been Act 427. Wis. only 20 months at the time of Huebner's trial. As Hans- explained, directly the statute contradicted this ford long-standing interpretation court's of the Wisconsin Constitution. See Hansford, 2d at 237-241. Wis. challenged Hansford and other defendants the consti- tutionality appeals statute, and the court of question certified the to this court on Hansford accepted December 11,1997. This court certification of January approxi- certification on Hansford mately one month before Huebner's trial. ¶ 34. Under circumstances, these Huebner had a strong objecting constitutionality basis for of bis to the six-person jury under Wis. Stat. 756.096(3)(am). § objec- If Huebner had raised such an judge easily tion trial, before his the trial could have empanel twelve-person jury decided to and obviate six-person jury's the risk that verdict would be appeal. object invalidated on Huebner's failure to deprived opportunity the trial court of the to avoid this Proceeding assumption error. on the reasonable object six-person jury Huebner did not to the use of a provided his case, the trial court full, Huebner with a by six-person jury. fair, and otherwise error-free trial ¶ 35. To invalidate trial, Huebner's and the trials of all those other defendants who were convicted six- person juries authority under of Wis. Stat. 756.096(3)(am) objection, without would result in a judicial tremendous waste of resources. Because Hueb- miscarriage justice ner has not established that a controversy has occurred or that the real in his case discretionary tried, not was we decline to exercise our power by six-person jury. to reverse his conviction a

IV ¶ conclusion, that Huebner for- we hold 36. In twelve-person jury when he failed his to a feited six-person object at his misde- the use of a to exercise our trial. We also decline meanor discretionary power conviction. to reverse Huebner's appeals. decision of the court of affirm the We therefore appeals By of the court of decision the Court.—The is affirmed. (concurring). PROSSER, In J. 37. DAVID T. legislature passed a statute man-

1996 Wisconsin dating six-person juries in misdemeanor cases. Wis. (1995-96). 756.096(3)(am) § this court In 1998 Stat. I, of art. unconstitutional as violation held the statute Hansford, Constitution. of Wisconsin 226, 230, 580 N.W.2d 171 many six-per- in which This case is one of 38. juries of crimes before convicted defendants son Juergen decision. announcement of Hansford his conviction on Huebner seeks to overturn by six-person jury deprived grounds him of that trial right. majority The a fundamental constitutional holding rejects request, that the defendant waived his jury by failing twelve-person to make a his timely objection. agree here but for different I with the result my not entitled to a view, the defendant is

reasons. authorizing six-person statute new because juries at the cases was constitutional misdemeanor decision was a time his case was tried. The Hansford mistake and should be overruled. serious

I-I July Congress approved 40. On "An Territory Ordinance for the Government of the of the United States Northwest of the River Ohio." The provided principles govern "Northwest Ordinance" to territory that evolved into several north central including states, Wisconsin. The Northwest Ordinance principles liberty contained fundamental of civil by unalterable, would "forever remain unless common ¶¶ consent." Section 1-2. part:

¶ 41. Article II under Section 13 reads in territory always "The inhabitants of the said shall corpus, entitled to the benefits of the writ of habeas and by jury." of the trial Congress passed

¶ 42. In 1836 "An Act establish- ing the Territorial Government of Wisconsin." Congress provided Act, Section 12 of the Territory rights, inhabitants of the were entitled to the privileges, advantages contained in the Northwest Ordinance. adopted

¶ 43. The Wisconsin Constitution was in officially March two months before Wisconsin original became a state. The document contained sev- provisions eral that are I, relevant to this case. Article provided by jury: by jury § 5 for trial "The of trial inviolate; shall remain and shall extend to all cases at regard controversy; law, without to the amount but a may by parties cases, trial be waived in all prescribed by the manner law." provided rights § I, 44. Article for the of the accused:

In all criminal prosecutions, enjoy the accused shall by counsel; to be heard himself and to demand the nature and cause accusation

against face; face to him; to meet the witnesses process compel compulsory the attendance have prosecutions behalf; and in in his of witnesses indictment speedy public information, or county impartial or district an committed; shall have been the offence wherein which previously countyor district shall have been by law. ascertained presentment §

¶ I, 8 described or 45. Article person shall be held indictment in criminal cases: "No present- offence, unless on the for a criminal to answer grand jury, except. . .in cases or indictment of a ment by justices peace." cognizable of the recognized different levels of 46. These sections rights depending prosecution and different and offense begins upon now, I, Then as art. the circumstances. prosecutions." phrase, "In This the all criminal with phrase prosecutions language "in than the is broader by in contained the same indictment or information" cognizable suggested §I, Article that "cases section. by by justices peace" not "the of the need be commenced grand jury," presuma- presentment indictment of a or bly those cases were less serious. because of the new constitution estab- 47. Article VII powers the the structure and of Wisconsin lished judicial power judiciary. provided that the of Section equity, state, matters of law and was the both as to pro- supreme courts, of court, in a circuit courts vested justices peace. bate, Section 15 described and justices peace gave and to them "such civil and of prescribed by jurisdiction law" criminal as shall he added). (emphasis Reading provisions together, these we see the accused "in the 1848 constitution ensured

prosecutions by to indictment or information" the not, however, an It did impartial jury." require "trial or indictment" in cases "presentment cognizable by jus- The constitution peace. gave legislature tices of determine authority law what cases were and cognizable by justices peace, hence what by presentment cases were not or indict- accompanied ment and what cases were not trial. guaranteed Unless one is there is no distinc- prepared say "all tion criminal prosecutions" between information," indictment or the Wis- "prosecutions by consin Constitution did not unequivocally upon bestow guarantee all criminal defendants the constitutional rights, trial. Even as it declared the 1848 consti- tution afforded the the' legislature power modify those certain cases. rights ¶ 49. only The constitution not original assigned

II assembly to a senate and but general legislative power change existing also the new empowered legislature stat XIV, law. 2 in change existing Article authorized utory "All in in the territory law: laws now force of Wisconsin, are not to this constitu repugnant which tion, shall remain in force until their they expire by the repealed by legisla or be altered or limitation, own added). ture" (emphasis 13 in the change 50. Section authorized com-

¶ in mon law: "Such of the common law as are now parts Wisconsin; in of not inconsistent territory force the the constitution, part with this shall be and continue of until altered the suspended by legis- or law of this state added). lature" (emphasis in until 51. Common law Wisconsin prevails

¶ Bank, v. Citizens Nat'l Aaby 197 changed by statute. (1928). A Wis. 221 N.W. 417 rule of common law

503 persistently embraced text writers and the courts of ignored legislative "unless a sister states should not be clearly abrogate expressed." it has been intent Co., Mut. 269 Wis. Nickel v. Hardware Cas. (1955) (citing Kappers 205 v. Cast Stone N.W.2d (1924)). Co., 184 Wis. 200 N.W. 376 To Constr. legislature abrogate law, the common the intent of clearly expressed, specific language must either in or in a manner as to leave no reasonable doubt of such legislature's purpose. Sullivan v. School Dist. No. Tomah, 502, 506, 191 N.W. 1020 unquestionably great show 52. Our decisions law, deference to the common but the common law is legislature may modify repeal not The or immutable. long change law, as as the common does not conflict with the constitution.

Ill legislature In 53.. 1848 the first Wisconsin engaged people three as commissioners to collate and public general revise all the acts of the state of a permanent nature, in at the close force session. (1849) Revised Statutes of at vii. The com- Wisconsin reported missioners their work to the second legislature. legislature eventually The second approved Consequently, the revisions. a substantial portion the law enacted 1849 was carried over Territory. from the Wisconsin legislature expressed its intent six-person juries Chapter to have certain cases. 86 of (1849) the Revised Statutes of Wisconsin related to county Chapter provided: courts. Section 16 of cause,

If in an issue of law be made the it shall be fact, by court; tried the if an issue of it shall on party, provided, demand of either as hereinafter by jury tried to consist of not more per- than six sons; and if no party, be demanded either the issue shall be tried the court. Chapter

¶ 55. 88 of the Revised Statutes of Wis- (1849) meaning related to Courts," consin "Justices' justices peace. chapter pro- of the Section 80 of this vided: every

In brought justice civil cause before a peace, joined, after issue and the justice before shall proceed to an examination the testimony, of or to cause,-either inquire into the merits of the party, on advance, paying justice first to the the fees in against losing may which shall be taxed the party, by jury demand that the cause be tried of six men. Chapter ¶ 56. 89 of the same Revised Statutes proceedings related to in criminal Justices' Courts. chapter provided: Section 10 of this issue, joining After the and before the court shall proceed investigation to an of the merits of the cause, expressly unless the accused shall his waive by jury, to a trial the court shall direct the any county sheriff or make a constable list writing, eighteen of the names of inhabitants of county qualified jurors to serve as the courts state, of record of this which list the complain- from may ant and accused each strike out six names. provided: Section then complainant neglect case the or the accused shall names,

to strike out such shall court direct some suitable, person, to strike out disinterested parties neglecting; names for either or both the so names out, justice such upon being struck venire, any directed to the sheriff or shall issue county, requiring him to summon constable of the persons upon the whose names shall remain six list, such court at the time appear such before therein, jury and named to make a for place the trial of such offence. legisla-

¶ mistake the 57. There can be no about approved statutes, tive intent in these year which were one adopted after the Wisconsin Constitution was territorial law. carried over from

HH > 58. There is now well-established methodol ogy interpreting provisions of the Wisconsin interpreting provi Constitution. "In a constitutional determining sion, in the court turns to three sources provision's meaning: plain meaning the the of the used; in words the context the constitutional debates practices writing and the in existence at the time of the interpretation constitution; and the earliest of provision by legislature as in the manifested passed following adoption." Thompson first law v. Craney, (1996); 199 Wis. 2d 546 N.W.2d 123 Beno, 122, 136-37, 341 N.W.2d 668 (1984). Contemporaneous legislative construction of great provision constitutional is entitled to deference. Payne Racine, 558, 217 Wis. 259 N.W. 437 (1935); Johnson, State ex rel. Pluntz v. 176 Wis. 114-15, 186 N.W. 729 supreme term, 59. In the December 1853 addressing Rice,

court decided Norval v. constitutionality Chapter 86, of Section 16 of which provided for a of six men instead of twelve county court civil cases. The court ruled that the six- person jury provided part: §I, 5, violated art. which by jury at remain inviolate." Id. shall "The of history traced the 60. The court Conquest." Id. at 20. It cited Lord the Norman "before English History Law, Blackstone's Coke, Crabb's Lectures on the Commentaries, Professor Woodesson's Chitty's England, Hale, and Case Law Sir Matthew of proposition at common law a the that Law for Chitty's quoted 1 men. The court consisted of twelve petit jury sworn, "The when C.L. 505 to this effect: precisely twelve, and is never to must consist of general Id. trial of the issue." more or less on the either at 21. The court concluded: Statutes of the Revised provisions

In our view of the Courts, they restrict the concerning County where they enjoyment with the persons, to six conflict citizen, every to right, a secured of constitutional men; by jury of twelve namely, right of trial hold, that when the defendant and we therefore by jury a trial consist- the court below was denied men, of a deprived he was ing of twelve to him the Constitution. secured at 23. Id. language Basing in 5 of art. its decision on 61. by jury in a court of that, "the trial

I, the court asserted adoption enjoyed before the has been record which The thus Id. court Constitution, remains inviolate." the implied jury may not be of the common law notions that legislature. altered elements to troublesome are several 62. There although discussed First, the court decision.

the Norval conceding Territory, juries in the Wisconsin only" juries peace justice six were courts, "of entry except forcible "actions of in all cases allowed significance detainment,"1 it nonetheless attached no six-person juries to the fact that these territory existed in the adoption before the theof Wisconsin Constitu- operated years principles tion, under the of the part Ordinance, Northwest and continued as of state pursuant §XIV, law art. after the constitution was adopted. Second, the court made no reference to art. gives legislature power change

§XIV, 13, which disregarded power legis- the common law. It change lature to common until it law addressed a law it providing protection liked, the 1850 act for the of mar- women, ried an act that overturned common rule law "marriage deprived the wife of the to main- upon tain an alone, action in her own name contracts peace jurisdiction Justice of the courts had in criminal pursuant cases and tried Chapter minor crimes 89 of the Revised Statutes of chapter Wisconsin Section 2 of this provided: peace power "Justices ofthe shall court, have to hold a subject provisions contained, to hear, the hereinafter try to charges determine all arising respec offences within their counties, jurisdiction tive where is upon by any conferred them law of this State." Chapter provided:

Section 8 of 89 further plea "If the of the guilty, by him, accused be not and no be demanded the said proceed try issue, court shall to such and to determine the same according may to the produced against evidence which be and in behalf of such accused." Chapter

Section 28 of specific 89 named minor crimes presented justices peace: before of the assault, battery affray, indictable,

No or shall be but all such prosecuted summary offences shall be and determined in a man- ner, by complaint justice peace, made before a and on thereof, may punished by conviction the offender fine not less dollars, dollars, fifty than five according nor more than to the nature ofthe offense.

508 marriage." 24. The Id. at court made her before recognized short, In the court not law as valid.2 only practices in at the time of the existence discounted writing also disavowed the of the constitution but the interpretation in first of the constitution the earliest following adoption. passed laws pre- to the Third, the court failed discuss simply constitutionality.3 sumption The court of matter for courts to that it was "a delicate observed legislative enactment unconstitutional." Id. declare a at 23.

2 changed have retrospect, quite In it is evident that we respect juries. Mod many elements of the common law with men, contrary law. juries consist of twelve to common ern do not automatically are not dis Persons with criminal convictions See prospective jurors, contrary to common law. qualified as n.7, Mendoza, 838, 2d 596 N.W.2d 736 227 Wis. legislature recognized that the could this court State, selecting juries. Perry 9 Wis. 15 change the manner of (1859). The court said: designating persons [W]e the who are to act as think the manner of

jurors.. clearly legislature; ofthe and that .is within the control trial, every person right is not accused constitutional of persons impaired merely selected instead because those have been Or, words, preserve think in order to in other we of drawn. necessary preserve any particular by jury, it is not of trial may designating jurors, though mode have been mode of even such adoption provision. at the time of the of the constitutional force includes, jury, impartial is a fair and not All that the designating particular of it. mode Wis. at 17-18. Association, Prosecutors State As this court observed County, 2d 544 N.W.2d v. Milwaukee (1996), constitutional. . . .When presumed "A is to be statute statute, contesting party constitutionality attacking unconstitutionality beyond a rea of the statute prove must the sonable doubt."

509 V heavily Hansford, 65. In this court relied on Norval. 219 at It that Wis. 2d 237—39. noted Edward V. supreme Whiton, Chief of the Justice three-member delegate 1853, court that Norval in was a at decided the 1847-48 the convention redrafted Wisconsin mention, Constitution.4 Id. at 239. did not Hansford legislature however, that members five jury passed six-person the bills —Senators Warren George Representatives Chase and W. Lakin and Paul Fagan, Reymert Crandall, D. James and James —were also members of the 1847-48 convention. opinion ¶ 66. The cites v. Bennett Hansford (1883), Jennings

State, 75, 57 69,Wis. 14 N.W. 912 (1908), State, 114 492 Wis. N.W. and County Attorney State ex rel. v. Gollmar, Sauk Disk (1966), pro 2d Wis. 145 N.W.2d the position by that a criminal defendant's to a trial jury guaranteed by as I, art. 7 of the Wisconsin Con-

4Edward V. served in Legislature. Whiton the Territorial compile In he was commissioned to all the passed laws legislature Territory the at the 1838-39 session. Statutes the Wisconsin concerning jus Whiton recorded "An Act peace." tices of the Id. at319. Section 2 of Article Sixth of Act the part: reads in every act, brought, by action to be virtue ofthis it shall be lawful suit, parties attorney them, for either ofthe to the or the of either of (and joined, proceed inquire after issue before the court shall into cause,) court, the merits ofthe to demand of said that said action be jurors, justice paying tried on of six first to the advance, against losing party, fees which shall be taxed justice upon demand, any such shall direct sheriff or consta- county may present, present, ble ofthe who or if no officerbe

justice may perform appoint person a suitable the duties required by this section. at Id. jury persons." right Hansford, 12 to a of "is the

stitution Norval, a cases uses 241. Each of these 2d at the consti- different section of that relied on a civil case precedent. a Moreover, Bennett involved tution, as felony, first-degree misdemeanor, that so not murder directly point. it is not on Lockwood, invoked State v. also 67. Hansford (1877), that: "The which observed 403, 405

43 Wis. right by jury. constitution, secured the trial . .is of public policy, upon principle waived" and cannot be of added). language, emphasized (emphasis not The quoted to the is in direct in Hansford, contradiction directly holding I, art. contradicted case. It also this may provided trial be waived 5, that "a which Chapter parties 89, Section cases," as in all as well (1849), waiver authorized Statutes which 10 Revised case. a criminal by common law not bound This court is 68. empowered legislature

principles to prece- was change. change are not shackled did We and particularly plainly when mistaken, that is dent disrespects coequal disregards precedent branch and constitutionally clearly government that has of good expressed law, as we If IVoruaZis viewed its intent. challenges likely to Wisconsin additional are to see juries providing than of less twelve. statutes

VI May joined the Union on ¶ 69. Wisconsin Blue Wisconsin state. 1999-2000 1848, as the 30th preceded Twenty-nine Wisconsin. states at 204. Book early inter- states, court decisions In of these several jurors. require by jury preted twelve (1860); Opinion Vaughn Scade, Mo. 600 (1860); Cruger River v. Hudson Justices, 41 N.H. (N.Y. App. 1854); Co., R.R. 2 Kern 190 Ct. Work v. (1853); State, 2 Ohio St. 59 Am. Dec. 671 Cox, 8 Ark. 436 Florida, Williams v. 399 U.S.

(1970), Supreme however, the Court held that impartial jury Sixth Amendment to an did not explicitly codify a twelve-member as a constitu- requirement. tional The Court said: "We hold that the panel necessary ingredient by 12-man is not a of 'trial jury,' [Florida's] impanel and that refusal to more than provided the six members Florida law did not petitioner's rights applied violate Sixth Amendment as through to the States the Fourteenth." juries ¶ 71. There are now ofless than twelve in a preceded number of the 29 states that Wisconsin into (Ind. the Union. See State, Brown v. 684 N.E.2d 529 (Tex. 1997); App. App. State, Carter v. 702 S.W.2d 774 1986); (Ind. App. State, O'Brien v. 422 N.E.2d 1266 1981); Boyland, State ex rel. Columbus v. 391 N.E.2d (Ohio (Fla. 1979); v. State, Williams 224 So. 2d 406 1969). App. juries These have been effected without modifying the state constitutions. freely acknowledge

¶ strong arguments I 72. juries. can be made in behalf of twelve-member These arguments may stronger argu- and better than the juries. public policy ments for six-member But was not the issue in The issue in was Hansford. Hansford deprives whether the Wisconsin Constitution the Wis- legislature power jury consin of the to mandate trials of persons beyond six in misdemeanor a reasona- cases— answering question, ble doubt. In this our court erred. I upheld believe this court should have the 1996 legislation. majority

¶ opinion correctly 73. As the states at jury 17: "Huebner has not lost his to a trial." His jury Huebner remained inviolate. to a jury in a misde- a constitutional a fair trial received judgment Consequently, in the I concur meanor case. affirm his conviction. ABRAHAMSON, CHIEF SHIRLEY S. 74. legisla- (dissenting). 21, 1996, the June On JUSTICE six-person the use of mandated ture On commenced that date.1 after actions misdemeanor mandating a law declared the 19,1998, this court June six-person unconstitu- cases in misdemeanor 243, 580 2d Hansford, tional. State N.W.2d uncon- a state law this court declares When initio, that ab

stitutional, is unconstitutional law adopted.2 Thus, it the date was is null from is, the law 756.096(3)(am)(1995-96). 427; Wis. Stat. § 1 1995Wis. Act 2 law; it Legislature is not a unconstitutional act "An protec it affords no penalties, rights, imposes it no confers no contemplation it has no legal tion, and in operative; is not 53, 545, Donald, 164 Wis. rel. Kleist v. State ex existence." 552 - (1917) v. School in Hunter (quoted approval with 160 N.W. 1067 435, 444, 293 2d Gale-Ettrick-Trempealeau, 97 Wis. Dist. of (1980)). N.W.2d 515 61, 64, 256 Roach, 30 N.W.2d 252 Wis. v.

See also Berlowitz Zimmerman, 233 (1947) Kleist); v. ex rel. Martin State (quoting ("with (1939) unconsti 454, 457 respect to an 16,Wis. 288 N.W. not been law had as if the . .the matter stands tutional law. 650, 661, Hill, 242 N.W. 208 Co. v. Wis. John F. Jelke passed"); (an law); v. (1932) Bonnett act is not unconstitutional 550 (1908) (an 200, 116 unconstitu 193, N.W. 885 Vallier, 136 Wis. all). Compare law at is no legislative enactment tional Butzlaff 538-540, 535, 340 Sons, Inc., Der Geest & v. Van 1983) (Ct. rule but (recognizing the Kleist App. N.W.2d 742 acting not held liable private persons should be holding that 513 mandating six-person jury the law in misdemeanor cases was null from the date it was enacted and should impact present have no this on court's decision case.3 good pursuant faith to statutes that are later declared

unconstitutional). (Ala. Getty Co., 1388, 1391 v. Shirley See also Oil 2d 367 So.

1979) ("[i]f unconstitutional, is it the act was void from the (Fla. beginning"); Scanlan, 1167, v. 2d Martinez 582 So. 1174 1991) ("a penal inoperative statute declared unconstitutional is enactment"); Manuel, 240, People from the time of v. 446 N.E.2d (Ill. 1983) ("[w]hen 244 - 245 a statute is held unconstitutional in entirety, initio"); its Stenberg it is void ab rel. State ex v. Mur (Neb. ("an 1995) 185, phy, 527 N.W.2d 192 unconstitutional nullity, enactment"); State, statute is void Reyes from its v. (Tex. 1988) ("unconstitutional 753 S.W.2d App. 383 Crim. inception," discussing cases); statute is void from Fairmont v. (W.Va. 1983) Co., Pitrolo Pontiac-Cadillac 308 534 S.E.2d ("when unconstitutional, a statute is or ordinance declared isit cases). inoperative, if passed," citing as it had never been 3 recognized Cases have a tension principle between the that statutes initio princi unconstitutional are void ab and the ple challenges prosecutions under laws later declared be unconstitutional can forfeited if a defendant failed to assert challenge tension, For at trial. discussions ofthis seeState v. (Ct. Thomas, 93, 97-101, 128 2dWis. 381 N.W.2d App. 567 1985); Treffert, 528, 531-38, State ex rel. Skinkis v. Wis. 2d 90 (Ct. 1978). App. 280 N.W.2d 316 attempt Cases resolve recognizing this tension challenges facial constitutional to criminal convictions cannot See, F.R.W., e.g., 193, 200, forfeited. In re 2d 61 Wis. 212 (1973) (facial N.W.2d challenge to statute's constitutional- ity challenge jurisdiction was to court's and not forfeited when trial) not (quoting raised at State ex rel. Comrs. Public Lands Anderson, 666, 672, (1973)); 2dWis. 203 N.W.2d (Ct. Benzel, 2d N.W.2d 434 App. 1998) (court acquire jurisdiction try person a cannot for an act

514 in this case was arrested on The defendant 76. a on 16, 1997, six-person jury and tried November "in no statute was 17 and when February Therefore, authorizing six-person jury. existence" from this court's distinguished cannot be case present State and the court Wingo4 decision recent Cooley. decision in State v. 5 appeals' when Wingo In was reversed 77. conviction under the six- was tried and convicted a defendant the defendant did not though statute even person jury. Wingo, as in the pre- to the object six-person time of case, was in existence at the sent no statute Wingo But in jury. authorizing six-person date of the to the effective prior action was commenced jury, authorizing six-person unconstitutional statute statute case the six-person in the present while law, when only by an -unconstitutional even made criminal ground); State v. objected at trial on this defendant had not (Ct. 291, n.1, App. 407 N.W.2d 319 McCoy, 139 Wis. 2d 1987) (a constitutionality of a statute on challenge to the jurisdic subject matter vagueness relates to a court's grounds of trial); State v. to raise issue at tion and is not forfeited failure (Ct. 418-420, App. Olson, 412, 380 N.W.2d 375 1985) (facial constitutionality juris challenges were to statute's trial). not raised at dictional and not forfeited when mandating challenge six- A to the statute constitutional cases twelve-person juries in misdemeanor person rather than not challenge the statute and thus is as a facial can be viewed having objected at by failure to forfeited trial. judgment of unconstitu- reach of a

For a discussion of the Tribe, Law Constitutional tionality, Laurence H. American see (2d 1988). 3.3 ed. 2d 609 N.W.2d Wingo, 233 Wis. 4 State v. 2000 WI (Ct. App. Cooley, 2d 315 N.W.2d 1981).

was not "in was existence" because it later declared unconstitutional. Wingo present

¶ However, 78. in and in both the object six-person case, the defendant failed to to the jury Wingo at In trial. we held that defendant did by twelve-person right jury not waive to trial his a and right appeal. did not forfeit his to the issue address on position The defendant in this case is in the same as the Wingo. Wingo governs in defendant Therefore the case present case. Cooley,6 ¶ 79. In the other case that is indistin- guishable present case, counsel, from the the defense agreed proceed defendant, not the with an eleven- person jury. appeals The court of concluded that personally because the defendant had not waived the right jury people, to a of fewer than twelve the convic- tion must be reversed. Wingo Cooley, case, 80. and in this as in no

statutory try authorization existed to a defendant with people. of fewer than twelve None of these agreed personally defendants ato people. fewer than case, twelve Thus the result in this just Wingo Cooley, in as should be reversal of the defendant's conviction and a remand a new trial.

II Regardless rely 81. I whether choose to on principle mandating six-person jury that the law trials initio, misdemeanor cases was void ab I would holding majority's still dissent from that the defen- twelve-person jury dant forfeited to a his he when object six-person jury did not at to the trial. (Ct. Cooley, 315 N.W.2d App.

1981). I dissent, I want my Before explain set following principles with the my agreement express majority opinion: forth (cid:127) in Wisconsin is a by jury to a trial The that "cannot be forfeited right"

"fundamental Majority op. trial]." object [at by mere failure 14.7 at ¶

(cid:127) forfeited on rights may be Some constitutional trial; at others will they if are not raised

appeal at object to by mere failure not be forfeited op. at 14-15. Majority trial.8 ¶¶ (cid:127) important to the The rule of forfeiture is judicial system. Majority

administration Jus- Supreme States Court at 14. United op. rule of has noted that the tice Antonin Scalia that a trial is principle forfeiture reflects 7 561, 569-570, 464 2d Livingston, See State (1991) (defendant affirma personally and must N.W.2d 839 object not trial; to does right mere failure tively waive his to Revenue, Internal Freytag v. Commissioner right); forfeit the of (1991) (Scalia, J., concurring) (right to 868, n.2 U.S. 895 trial; object to at by mere failure by jury cannot be forfeited object at failure to forfeited right to counsel cannot be mere trial). 11, n.2, notes, majority op. at majority opinion

8 Asthe than rule" rather question of the "forfeiture presents a this case opinion that Wiscon majority agree I with the "waiver rule." the word "waiver" when use the word opinions tend to sin appropriate. more "forfeiture" is (the relin intentional "waiver" between

For the distinction right privilege) or of a known quishment or abandonment (the an timely preserve failure to assert "forfeiture" review), Freytag see, e.g., v. Commissioner appellate issue of (1991) (Scalia, J., con Revenue, n.2 501 U.S. Internal Olano, 731-733 507 U.S. curring); States v. United event," "the main simply and not a "tryout on the road appellate Freytag review." v. Com- Revenue, missioner Internal 501 U.S. (1991) (internal (Scalia, J., concurring) omitted). quotation marks (cid:127) This may court exercise its discretion to reach

an issue that a party has Majority forfeited. op. at 27-28. ¶¶

¶ 83. In this case the defendant did raise his objection post- before the court, circuit in a motion for procedure gave conviction relief. This the circuit court opportunity Regardless to consider the issue. this submission court, to the circuit I conclude that in by jury per- Wisconsin the to a trial of twelve sons cannot be forfeited a defendant's mere failure object persons at trial to a lesser number of on the jury. My reasoning is as follows:

(cid:127) A six-person jury trial in a criminal case is not

a "trial by jury" as phrase has been histor- ically understood in Wisconsin. In State v. Hansford, 226, 241, 580 N.W.2d (1998), 171 equated court by jury trial to a jury of twelve persons. According Hansford, to "a criminal right defendant's a by to trial jury guaranteed by I, as art. 7 of the § Wisconsin Constitution, right is the jury to a of twelve persons."9 This court declined in to Hansford adopt the Supreme U.S. Court's reasoning "that the twelve-person requirement for a jury trial is not 'an indispensable component of the 9 Hansford, State v. 219 241-42, Wis. 2d 580 N.W.2d (1998). 171

518 "10 court Rather this Sixth Amendment.' jury twelve-person in that a declared Hansford of the state con- indispensable component is an Thus the by jury. of trial guarantee stitutional unanimously court declared Hansford jury was six-person mandated legislatively defendant is not When a unconstitutional. as jury people, to a of twelve right afforded the I, the Wisconsin Con- by art. 7 of guaranteed § stitution, must reversed.11 the conviction (cid:127) per- a must by jury a trial defendant To waive record, in in court on the or

sonally open state jury a trial.12 that he or she waives writing, any other counsel nor the court nor "Neither any degree so as any way act in or to entity can his the defendant's behalf to waive on fails personally If a defendant by jury."13 trial trial, he or she does not forfeit jury to waive a appeal. issue on to raise the (cid:127) waiving apply rules that The same by waiving by jury apply a trial 10 241-42, N.W.2d Hansford, 2d 580 v. State (1998) Florida, 399 U.S. 100 (quoting 171 Williams (1970)). N.W.2d 171 Hansford, 219 Wis. 2d State v. (1997-98) provides: Stat. 972.02 Wisconsin (1) provided chapter, cases Except this criminal otherwise in as 805.08, jury prescribed unless in s. tried selected as shall be open writing or statement waives a

the defendant 967.08(2)(b), record, approval with the on the court'or under s. the consent of the state. the court and 561, 569, 464 N.W.2d 839 Livingston, 159 Wis. 2d (1991) (defendant affirmatively waive his personally must trial). right to a

519 jury people.14 of fewer than twelve In person- words, other a defendant must ally state on the record his or her willingness by jury to be tried of fewer people.15 than In twelve this case the agree personally defendant did not on the record people. be tried fewer than twelve he Thus did not waive his twelve-person jury and he could not for- appeal. feit the issue on (cid:127) jury The size of a can affect the fact-find-

ing process. Accordingly I conclude that a opportu- defendant should not forfeit the nity appeal. to raise the issue on declining adopt Florida, Williams v. (1970), 399 U.S. 78 in the deci- Hansford implicitly rejected sion, the court position jury in Williams that a of twelve people significantly is not different than people. good with fewer There are rejecting position. reasons for this See Louisiana, Brown v. 447 323, U.S. 332 ("a (1980) decline in the size leads to factfinding greater less accurate and a convicting person") risk of an innocent (quoted by Ledger, State v. 175 Wis. 2d (Ct. App. 116, 127, 499 N.W.2d 198 1993)); Georgia, Ballew v. U.S. Cooley, 645-46, 105 Wis. 2d 315 N.W.2d 369 (Ct. 1981). App. Cooley, 642, 645-46,

15 Statev. 2dWis. 315 N.W.2d 369 (Ct. 1981). App. See Ledger, also State v. (Ct. 1993)

127-28, 499 App. (permitting N.W.2d 198 a thirteen- person jury when personally agreed). the defendant (1978) ("[statistical suggest studies

234 convicting that the risk of an innocent person. . as the size of the .rises diminishes"). and these other Hansford majority opin- cases thus contradict six-person jury that a ion's assertion accuracy not affect the basic of the "does Majority factfinding process op. at trial." (internal omitted). ¶at 31 citations (cid:127) including decisions, Recent State v.

Wingo, 2d 609 31, 647, 2000 WI 233 Wis. Cooley, 162, and State v. 105 Wis. N.W.2d (Ct. 1991), App. 2d 315 N.W.2d 369 my support above, The discussed dissent. majority attempt opinion in its fails Cooley, distinguish 2d State v. majority opinion The 642, from this case. posits Cooley that was on the fact based eleven-person not that an was by any Majority op. authorized statute. suggests Nothing Cooley ¶ 23. at statutory rests on the lack of the decision eleven-person for an authorization jury.16 relying Rather, on decisions of appeals con- court,17 this the court 16 Ledger, 175 Wis. 2d See 116, 127-28, 499 N.W.2d (Ct. 1993) (the jurors need not estab App. 198 number of constitutional; jurors thirteen did by statute to be lished per justify when the defendant not reversal of the conviction jurors). sonally agreed to that number 17 Gollmar, Attorney County v. State ex rel. Sauk District 32 State, Krueger v. (1966); 406, 409, 2d 145 N.W.2d 670 Wis. denied, U.S. 874 cert. Wis. 2d 267 N.W.2d (Ct. Moore, State (1978); 671, 294 N.W.2d 1980). App. procedural safeguards

eluded "the by jury apply equally of trial waiver twelve-person jury."18 of a full waiver expressed approval This court has Cooley majority opinion decision.19 The attempts away Cooley explain deci- by stating sion that when "the trial court give up itself induced a has defendant to statutory his and constitutional to a jury, twelve-member defendant's personally waiver must be made and expressly." Majority op. ¶at 24. In the present legisla- case both the Wisconsin (by enacting ture law) an unconstitutional (by drawing

and the circuit court six-person juries compliance with law) unconstitutional induced the defen- give up statutory dant his and right twelve-person constitutional to a jury.

¶ 84. Because a is, this state as a matter composed people law, cases, oftwelve in criminal by twelve-person jury because the right to trial is a except by that cannot be waived a defendant's personal oral or written record, waiver on the I con- twelve-person jury clude that to trial cannot be forfeited object mere defendant's failure to people. at trial to a of fewer than twelve ¶ 85. I stated, For reasons dissent.

18 Cooley, State v. 105 2dWis. 645-46. Wingo, See State v. WI 31, 16, 233 647, 609 2d Wis. (citing Cooley Livingston, N.W.2d approval); with (1991) (same). 464 N.W.2d 839 I am authorized to state that Justices ANN join BRADLEY and DIANE S. SYKES this WALSH dissent.

Case Details

Case Name: State v. Huebner

Court Name: Wisconsin Supreme Court

Date Published: Jun 20, 2000

Citation: 611 N.W.2d 727

Docket Number: 98-2470-CR

Court Abbreviation: Wis.