*1 Plaintiff-Appellant-Petitioner, Wisconsin, State Defendant-Respondent. Thomas J. Kramsvogel, Supreme Court Argued January No. 84-017-CR. 30, 1985.— May 29, 1985. Decided (Also reported 145.) in 369 N.W.2d *2 plaintiff-appellant-petitioner For the ar- was cause gued Stephen gen- Kleinmaier, attorney W. assistant eral, with on whom was Bronson C. La Follette, the briefs attorney general. defendant-respondent
For there was a brief Terry argu- Rose, Kenosha, W. Rose & and oral Rose by Terry ment W. Rose. CECI, unpub- J.
LOUIS J. This review of an is a appeals lished decision of the court of which affirmed an order of county, the circuit court Kenosha Max Ras- *3 kin, judge, dismissing reserve presiding, criminal com- plaint charging Kramsvogel (defendant) Thomas J. with damage property, 943.01, criminal contrary to to sec. Stats.1 complaint The circuit court dismissed the col- on estoppel finding lateral and double grounds, municipal that the defendant been convicted in a had court for the same acts formed basis for the the charges against state's complaint. him in the criminal appeals We reverse court of the double and hold that prohibits only multiple punish- clause criminal case, proceeding ments. In this court against Therefore, the defendant a civil we was action. against Kramsvogel conclude that civil action for vio- lation of the does bar sub- ordinances sequent criminal of a state violation statute, though proceedings even concern both the same of Second, actions we that defendant. hold the doctrine estoppel applicable of collateral in this is not case. There no facts that are have been established Stats., 943.01, provides: Section damage property. (1) “943.01 Criminal to Whoever intention- ally damage any physical property causes to another of without person’s guilty consent of A a Class misdemeanor.” here, further, a lower and, there is proof in of civil than burden in cases there actions. gave charges being filed
The facts that rise to against Kramsvogel com- in the criminal are forth set part, plaint, in which alleges, 12, 1983, . at Pleasant Prairie Town- “. . that on June County, did: ship, intentionally the defendant said [Kenosha] damage physical unlawfully to the and cause consent;
property that on said date at person’s that of another without approximately p.m., 12:30 Officer Department Ratzburg Prairie the Pleasant Police Paul residence for defendant’s had occasion to return the noise and fendant residence issued Pleasant Prairie Ordinances for sary noise, said excessively day reports loud fourth that on time emanating of said de- from the residence music ; Ratzburg pulled into further that as Officer he would be and defendant that informed said loud and unneces- said then ordered have defendant was Ratzburg; squad operated by and seat in the car Officer TTY run a further that on warrants officer then had occasion to said two there were said defendant determine outstanding with bond for said defendant totaling $3,000; amounts whereupon, excess Deputy the iff’s Paul the Kenosha Sher- assistance John placed Department, under said was then defendant vehicle; squad placed arrest and into the handcuffed and being during further the course of said defendant loud, placed vehicle, very he violent and said became telling ‘get f-,’ a- fish face, said officer *4 reported at other Ratzburg; were then directed Officer obscenities with continued further said defendant questioned his such to where behavior when he was brought to children could taken he was to be be while Building; whereupon, County Safety Kenosha Public said very loud, was defendant he continued to stated be going car; squad to out the windows break point, rear leaned back on the seat said defendant squad of said rear side window and broke out the driver’s kicking feet; con- con- with duct that said motion of his further by permission or was without the defendant Ratzburg Prairie Police sent of Officer Pleasant of the Department; being said conduct the defendant con- trary 943.01, to Section . . . .” Stats., Ratzburg
On June 12,1983, Officer issued two town of municipal Kramsvogel. Pleasant Prairie citations to alleged first citation that the defendant violated sec. 9.06 prohibiting ordinances loud unnec essary by playing noise loud This citation is not music. in issue alleged here. The second citation that Krams- vogel Ordinances,2 9.03.1., prohibiting violated sec. dis orderly conduct, “using profane language and had to put be in handcuffs.” The record not before court; agree this parties however, that it contains the following description Kramsvogel’s conduct: profane language, “Def. used my a--, f— you, said kiss my squad called K.S.D. unit fishface in while the back of going get car. Also me, stated he was to Def. then etc. out the squad kick window the car and condt. to [sic] disorderly.” act Kramsvogel guilty pled to these citations and was fined $122. charging complaint 13, 1983,
On June the criminal Kramsvogel damage property was issued to Ordinances, Prairie, Wisconsin, 9.03.1. Town of sec. Pleasant (1983), states, person shall
“SECTION 9.03—DISORDERLY CONDUCT —No engage disorderly conduct, herself in a or himself or conduct tumultuous, Any following riotous, indecent manner. of the or disorderly section, the enumera- acts constitute conduct under exclusive; tion of which shall not deemed public making, aiding assisting private place, “1. or or making, any improper noise, riot, disturbance, breach peace engaging tending peace, or act breach of or abusive, unreasonably violent, boisterous, or or or wrath- or loud ful conduct in which such conduct tends under such circumstances provoke damage private public or cause a disturbance or property.” *5 county attorney. by June the Kenosha district On com- the defendant filed a motion to dismiss the against grounds charges plaint, him were on the that the jeopardy the clause or the collat- barred either double argued pled he estoppel eral defendant that doctrine. The charge municipal guilty disorderly the conduct to charge believing court, his of break- included act the ing therefore, should squad and, car the the window, charge subsequently criminal to him with not be allowed damage property. motion, granted find-
The court the defendant’s circuit ing Kramsvogel guilty in was found Prairie for the same of- court town of Pleasant acts, now upon identical based the same he fense, being charged by The that if court held circuit state. action, the proceed this de- the state was allowed right protection deprived fendant would be of his provisions of both the state under the double order dis- and federal constitutions. circuit court’s missing complaint subsequently affirmed was appeals. court of
ISSUES There two before court: are issues (1) prosecution upon a state Whether based guilty plea violating statute, which follows ordinances, protection should be as a violation of barred proceedings when concern both defendant; same actions
(2) upon a state based Whether violating municipal statute, guilty plea which follows ordinances, barred doctrine of collat- should be under the estoppel proceedings eral when ac- both concern same tions the defendant. *6 Jeopardy
Double prosecution places Defendant contends that this him jeopardy offense, contrary twice in for same to the the fifth amendment to United and States Constitution I, art. 8 of sec. Constitution.3 This Wisconsin is question and, therefore, of law, we no owe deference the trial v. court’s State Denter, determination. 118, 122, (1984). 2d 357 555 N.W.2d recently underlying
This court
discussed the rationale
prohibition against
jeopardy
v.
double
in
Mar
State
tin,
670,
121 Wis. 2d
ardy” designed being was an individual from subjected possible to the of hazards trial and conviction alleged underly- more than ing for . once an . offense. . The ingrained idea, deeply one that in at An- least the glo-American system jurisprudence, of is that the State power with all its resources and should not allowed to be repeated attempts make for an to convict individual an alleged offense, subjecting thereby him to embarrass- ment, expense compelling and him to live ordeal 3 The Fifth to the States Amendment United Constitution states, any subject person “nor for offence shall be the same put jeopardy I, be twice 8 of life or limb.” Article sec. states, person same of Wisconsin Constitution “no may put jeopardy punishment.” fense twice in The federal prohibition against applicable held to the double was through states the Fourteenth Amendment to the States United Maryland, (1969). Constitution. Benton v. 395 Addi U.S. 784 tionally, court has held the state and federal double jeopardy guarantees Day scope purpose.” are and “identical State, 591, 588, 811, v. 2d 251 Wis. cert. denied 434 N.W.2d similarity (1977). provisions, U.S. 848 Due to the of these two accepted Supreme we have decisions United States Court governing provisions the double constitu both Rabe, 7, 48, tions. State v. 61 n. N.W.2d (1980). insecurity, continuing anxiety and as well as en state of may hancing be found possibility though that even innocent he 184, guilty.’ States, Green v. United U.S. (1957), quoted approval 187-88 in United States DiFrancesco, 449 U.S. 127-28 corollary principle “A of this of fairness that the de punished, not live in a fendant convicted and should once punish anxiety insecurity state of for fear of further jeopardy clause ment for the same offense. The finality assures fairness the administration DiFrancesco, justice system. criminal 449 United States (footnote (1980).” 128-29 at 675-76 U.S. Id. omitted). *7 analyzed Supreme The Court United States has consisting jeopardy guarantee fifth amendment double separate protections. of three constitutional protects against prosecution “It of a second for the same prose acquittal. against protects fense after It a second cution And it for the same after conviction. offense against protects fense.” multiple punishments for of the same 711, North 717 v. 395 U.S. Pearce, Carolina (1969) (emphasis added; omitted), cited with footnotes approval 546, 563, Sepulveda, in State v. 119 2d 350 Wis. (1984).4 N.W.2d 96 protections It is with in the second of these deal we this case. To whether determine double Kramsvogel prohibits prosecuting clause from the state damage for find- property, make two we must ings first, proceeding a “second whether this constitutes — prosecution” jeop- purposes of the as defined for double ardy clause; and, second, prosecutions are whether both for the “same offense.” begins long-established inquiry
Our first with the rule protects at- two clause 4 also, DiFrancesco, Three 129, Westen, See 449 and U.S. Jeopardy: Appeals Faces Double on Government Reflections Sentences, Criminal 1001, 78 Mich. Rev. 1062-63 L.
109 tempted prosecutions. 1938, the United States Supreme held, Court “Congress may impose a criminal both and a civil sanc respect omission; tion in to the same act or for the double
jeopardy tempting prohibits merely punishing twice, clause or at punish criminally, a second time to for the same Helvering Mitchell, 391, offense.” cited with 303 U.S. 399 approval in United States v. One Assortment - Firearms, 89 -, 1099, U.S. S. Ct. (1984).5 held, This court has also may subject “The same penalty act one to a under an prosecution. ordinance and also to a criminal But the legal character,
two are distinct in their
na
both as to the
ture
quality
jurisdiction
of the
of
offenses and the
against..
fended
. . No rule
better settled in Wisconsin
'¡prosecution
than
city
that a
under a
ordinance does not
bar a
the same act under a state
statute
under the common law.” Milwaukee v. Johnson, 192 Wis.
585, 590, 213
(emphasis added).
335 (1927)
N.W.
also,
Lewis,
See
State v.
365,
363,
Wis.
The defendant with cites and Ramirez, State v. (1978), Wis. 2d N.W.2d proposition for the prosecution there can be for no the same under both offense a state statute and munici- a pal ordinance, civil, municipal even if the ordinance is generally, Procedure, See Criminal Israel, W. LaFave & G. 24.1(b) (1984).- sec. criminal, Ramirez, this court stated in nature. and not dicta, upon a for an offense based “In a nut a shell, prosecution for the same offense statute bars state based court upon acts same individual ordinance and vice 2d at versa.” 83 Wis. on a 153. alleged complaint Ramirez Teresa
The criminal drug Geneva, Wiscon A. Ramirez in Lake entered store something two in one of sin, placing and was observed figu handbags. employee that several A noticed store missing employee display case. The rines were from Ramirez as left the store. When followed Ramirez she handbags employee, and threw of the noticed the she one captured by employee for store and held ran. She was police. damaged figurines were found in the Several figurines handbag other thrown, that was and several charged handbag. were found in Ramirez was the second (4) 943.50(1) and shoflifting, violation secs. dismiss, (b), Stats. 1977.6 Ramirez filed a motion claiming accompanied that she an affidavit was ordinances, pled guilty city had to two violations resisting damage namely, property or ob structing that she was an officer. affidavit stated provide, 943.50(1) (4)(b), Sections Stats. Shoplifting. intentionally (1) indicia “943.50 alters Whoever away, price carries value of or who takes and or merchandise transfers, possession held retains of merchandise conceals or to de- and with intent resale a merchant without his consent pur- prive possession, permanently the full the merchant may penalized provided price, chase merchandise such in sub.
“(4) guilty this section is of: Whoever violates “(b) felony, exceeds A E if of the merchandise Class the value $2,500.” but not $500
Ill pay ordered to city a forfeiture to the of Lake Geneva and drug damage. make restitution to the store for the subsequently granted trial court Ramirez’ motion and dis missed the information. was, appeal
The issue on
prosecution
“. .
.
upon
. whether a
based
a state statute
should be barred as a violation of constitutional double
jeopardy provisions
plea
guilty
because of a
to viola-
municipal ordinance,
arising
tions of a
prosecutions
both
from the same transaction.”
or preliminary issue Ramirez, addressed the In we never charge shoplifting a “second constituted whether the jeop purposes the double prosecution” defined for as proceedings criminal ardy clause, i.e., were whether both Florida, 397 U.S. prosecutions. on Waller relied We general jeopardy rule that the double for the (1970), both under prosecution for the same offense clause bars stating dicta, municipal ordinance, a state statute and municipalities grants the subordinate “If to its the right penal-type in a munici ordinances triable to enact prosecutions so pal duty the it has the to correlate court, provi jeopardy not to offend the constitutional double as Ramirez, 2d at 153.8 sions.” 83 Wis. holding emphasize point at this that
We must the municipal pro- Waller is limited to cases where the those ceeding penalty proceeding. Waller, is a criminal In the city imposed a crimi- for violation of the ordinances was penalty; days spend 180 nal accused was ordered to the county jail. Supreme Court re- The United States jected sovereignty theory applied separate subsequent double clause to bar the 395. The for the offense. 397 same U.S. by permit protections Court would not afforded clause to be circumvented the state Wisconsin, However, it has been held unconstitutional authority legislature delegate municipalities our to cre Schmiege, See, ate crimes. State ex rel. Keefe declaring county N.W.2d 345 where held ordinance we driving imposing punishment drunken to be misdemeanor by fine, imprisonment, both, I, sec. be in violation of art. state, 2 of the reasoned that Wisconsin Constitution. We sovereign, only governmental body as that can create delegate authority city, that crime and the state cannot that to a county municipality. or other atWis. 84-85. delegating power
Florida’s to its subdivisions the to im- pose punishment.9 conclusion, we stress that Ramirez should not in
terpreted holding that the Lake Geneva ordinances are criminal ordinances or that Lake Geneva power has the to enact criminal ordinances. We did not specifically address Additionally, issue in Ramirez. quote Ramirez, the above-cited 153,10 from 2d at is relied on the defendant should not be miscon *11 applying strued as municipal instances where the vio lation is not a criminal offense. Our discussion explained Ramirez Schulz, has been in State v.
329, appeals finding where the court of held that the guilt county on the operating ordinance violation of a motor vehicle while intoxicated did not bar the state trying from Stats., the accused of violation of 940.09, sec. 11 by vehicle, homicide intoxicated user of because viola tion of the offense, ordinance was not a criminal and the penalty of penalty. a forfeiture was not a In conclusion, held, the court 9 Accord, 611, 618, Killebrew, 327 N.W.2d State v. 109 2d Wis. (Ct. App. 1982), aff’d, 470 243, 340 N.W.2d 115 Wis. 2d (1983), holding, consequence “Finally, it is of no Wisconsin prosecution place judicial forum, while a later takes prior discipline by way the There comes of administrative action. sovereign: sovereign may delegate is but one not That state. power here, agency its to a subordinate administrative — —so Ramirez, jeopardy
to circumvent double defenses. State v. 153, (1978).” 2dWis. 265 N.W.2d 1 0 See, p. 110 herein. 940.09(1) (a) provides, Stats., (b), Section by “940.09 firearm. Homicide intoxicated user of or vehicle (1) Any person following par. (a) who does under either of the (b) guilty felony: or of a Class D “(a) by handling operation Causes the death of or another vehicle, airgun of a firearm or influence of while under intoxicant; an “(b) by handling operation Causes the of another or death vehicle, airgun person of a firearm or a blood while the has required State Ramirez. “A is not different result Ramirez, there no ... In the court stated that can be prosecution for under both state stat- the same offense statement was made ute and a ordinance. This penal-type respect ordinances, and therefore has with no 346.63(1) applicability non-penal violation. to the sec. imposition sum, require ... [Ramirez does] jeopardy protection present of double in the case.” 2d at 331-32. in this case of whether the We now turn to the issue be, Pleasant Prairie ordinance is intended to necessarily punitive is, criminal and or its nature in- and remedial.12 If that the civil we find ordinance is punitive, tended to be then the double clause might subsequent prosecution prevent a for a violation hold of a state statute for the we However, same offense. and, proceeding, ordinance violation was a civil prevent consequently, clause does not this criminal for violation of a state statute. municipal proceeding at The issue of whether was which the defendant was assessed a forfeiture $122 proceeding imposing a criminal or civil or civil punishment statutory question interpretation. *12 is 399; Firearms, at Helvering, at 89 104 Ct. 303 U.S. S. 1105; 100 330. Su Schulz, Wis. 2d at The United States analysis, preme two-pronged Court has a established stating, inquiry regard traditionally proceeded “Our on two in this has First, have out to determine we set levels. establishing Congress, penalizing
whether in mecha expressly impliedly preference indicated either or a nism, for one label or Lot Emerald other. See One Cut by weight alcohol concentration of or more of alcohol 0.1% person’s grams that in 210 liters blood or 0.1 or more of alcohol person’s of that breath.” 12 distinction, see, a For discussion of the “civil-criminal” Clark, Frame Civil and Criminal Penalties and A Forfeitures: (1976). Analysis, work Constitutional 60 Minn. L. Rev. 379 for
115 States, Second, v. United Stones at 236-37. [409 U.S.] Congress where civil has indicated an intention to establish a penalty, inquired we have further whether the stat utory punitive purpose so scheme was either in effect or negate 603, Flemming Nestor, toas intention. 363 See regard U.S. 617-621 to this latter in proof quiry, we have noted clearest could ‘only unconstitutionality suffice to of establish the a statute ground.’ Id., on Cut Stones v. Lot such at One 237; Emerald 617. See also States, supra, United Rex Trailer at States, (1956).” Co. United United U.S. Ward, States v. 448 U.S. 248-49 cited approval Firearms, in 89 104 Ct. 1105. S. Applying prong the first of the Ward to the test facts case, legislature of this we conclude that our intended the penalty imposed by penalty. to be a civil ordinance legislature specifically our First, authorized the use has of a citation for an ordinance violation13 and has ex pressly municipal stated that an action for violation of 939.12, ordinance Additionally, is a civil action.14 sec. Stats., defines crime as follows:1 66.119(1) (a), Stats., states, Section Adop- Citations for certain ordinance violations. “66.119 (1) content, (a) town, governing any county, body tion; city village may by adopt or ordinance authorize use of and a citation to be for issued violations ordinances other than statutory counterpart those for which a exists.” 66.12(1) (a), Stats., part, Section reads village regulations. “66.12 city (1) Actions for violation or op penalties, (a) An action Collection forfeitures municipal bylaw ordinance, violation of a resolution or civil Accord, Stats., action.” 800.02(1), provides, sec. citation, complaint, “800.02 Form of and warrant summons ordinance violation cases. Action. An action (1) municipal ordinance, court for or violation vio- bylaw bylaw lation of a or resolution if the resolution or pen- statute, authorized is a civil action forfeiture alty imposed by any municipality may be ordinance of the col- lected in an municipality.” action in the name *13 also, Schmiege, See 84, stated, 251 Wis. at where we Keefe “By long antedating definition state, the constitution of this a is which is A conduct defined. crime “939.12 Crime by im- punishable fine or by law and prohibited state only for- punishable a prisonment or both. Conduct a crime.” feiture not 939.12, of violation Pursuant to sec. the ordi- a because crime, not constitute
ordinance does punishable law, the violation is and nance not a state only by a forfeiture.16 Peterson, 104 Wis.
A in State similar issue arose leg to the 616, we looked where N.W.2d civil or crimi islature's intent to determine whether pleadings in govern cases nal amendments to statutes pre charging which of traffic offenses violations held, scribe a forfeiture. We sovereign against and crime has an been defined as offense person prosecuted a ‘one the state action charged public public of committed violation offense Hamley, 114.” law.’ State v. N.W. provides, Ordinances, 25.04, Prairie Section Town of Pleasant (1) “25.04 GENERAL PENALTY. PENALTY PROVISIONS. any any Except provided, person shall violate otherwise who provisions shall, upon such viola of the of this conviction of Code tion, subject penalty, be be as shall follows: “(a) any provision person Any First Offense. shall violate who shall, upon thereof, forfeit not less than
of Code conviction penalty $500, together nor and more than with a assessment $5.00 payment prosecution, costs such for- in default of of and imprisoned feiture, shall be assessment and costs County forfeiture, Jail until such assessment and costs days. paid, exceeding are but not “(b) violating Any person guilty found Second Offense. any part ordinance or of an ordinance this Code who has previously been convicted of a violation of the same ordinance year shall, upon thereof, within one forfeit not less conviction offense, together than nor more $10.00 than for each such $500 penalty prosecution, with a assessment and costs of payment forfeiture, default of such assessment and costs shall imprisoned County forfeiture, in the Jail such until assessment paid, exceeding costs but are 6 months.”
117 legislature “That the intended that of violations involving traffic laws forfeitures be treated as of- civil legislative history chapter fenses is clear from the 346, adopting Stats. 1977. In the Uniform Traffic Procedure legislature 1971, Act sions of ch. of many penalty provi- the amended provide any person guilty 346 to that found violating punished the traffic by would statutes for- (a money a penalty) sum civil rather than feiture of by 104 imprisonment (criminal penalties).” or both fine added; (emphasis omitted). 2d at Wis. 621 footnote Finally, it a I, is violation of art. 2 sec. of the Wisconsin municipality impose Constitution for a pun legislature ishments. Because' the does not the have power delegate authority crimes, the to create we have proceeding held that to enforce an ordinance a civil action. Neenah v. Alsteen, 596, Wis. 2d 142 N.W. 601, citing 2d 232 (1966), approval 79, Keefe, and South Milwaukee v. Schantzen, Wis. N.W. 2d 628 For reasons, these we are convinced that legislature our intended a for action violation of its proceeding ordinances to be imposing a civil a civil penalty. test, prong
We now Ward address the second determine directs us to whether the forfeiture $122 punitive assessed the defendant is “so either negate” legislature’s purpose or effect as to intention Ward, to establish a civil remedial mechanism. 448 U.S. “ ‘ ’ “Only proof” at 249. purpose clearest punitive and effect of the forfeiture are suffice to will legislature’s] preference override manifest [the Firearms, (citations civil sanction.” 89 104 Ct. S. at 1106 omitted).18 by proof” are not We convinced “clear punitive. forfeiture here is
17 See, n. 8 herein.
18 Kennedy Mendoza-Martinez,
South Milwaukee v.
Bud,
Milwaukee v.
at
216, 218,
(1962);
18 Wis. 2d
118
123
Milwaukee v.
N.W.2d
Antczak,
480, 481,
(1964);
24
129
Neenah
Wis. 2d
N.W.2d 125
Alsteen,
Horvath,
600-01;
v.
30
v.
Wis. 2d
Milwaukee
31
at
490,
446,
492,
Wis.
143
cert.
2d
N.W.2d
denied
In we hold proceeding, the double because not bar this criminal does prosecu- only multiple prohibits clause civil tions, case was a and the action proceeding. we need reach second holding, so concerning jeopardy analysis prong whether of the double charge damage property of criminal constitutes de- to which “same offense” as the two ordinances pled guilty. fendant Estoppel
Collateral
ac
whether this
defendant also raises
issue of
The
of collateral
be barred under the doctrine
tion should
estoppel.
This doctrine
been used
in
has
defendants
involving
cases
a second
to bar the introduc
already
tion of
prior acquittal.
facts
resolved in a
The
leading case
Swenson,
in this
Ashe
area is
toppel
guarantee,
applicabil
embodied in that
then its
ity
particular
longer
in a
case is no
a matter to be left for
state court determination within the broad bounds of
fairness,’
‘fundamental
but a matter of constitutional fact
through
we must decide
an examination of the entire
. .
record..
“
estoppel’
phrase,
‘Collateral
an
awkward
but
it
extremely important
stands
principle
for an
in our ad
versary system justice.
simply
It means
that when an
issue
ultimate fact
once
has
determined
been
judgment,
again
valid and final
issue cannot
be liti
gated
Although
parties
any
between the same
future lawsuit.
developed
first
es-
civil
collateral
litigation,
toppel has been an established rule of
federal
years
law at least since
this Court’s
more than
decision
ago
Oppenheimer,
in United States v.
Id.
85.”
U.S.
(citations
omitted).
442-43
Supreme
Maryland,
In Benton v.
the United States
Court
guarantee
against
held that
the fifth amendment
against
through
is enforceable
the states
the fourteenth
amend
ment.
21 Hoag
Jersey,
v. New
122 Mock, (5th F.2d Additionally, United States 341 estoppel collateral defines the law of 1979), Cir. follows: inquiries: facts “Thus, Ashe two what First, mandates necessarily . . . first law suit? were determined in the government necessarily subsequent Second, trial tried to the has against relitigate it the facts established may not the first trial trial? Facts so established in first be used in the second trial tiary or as eviden- either as ultimate Thus, parent of dou . bars doctrine facts. . while the . subsequent prosecution on a based ble evidence when ‘the of the criminal code different section upon required support them one of a conviction [the warrant would been sufficient have indictments] conviction estop- upon other,’ progeny, collateral its the relitigation only or pel, bars reintroduction facts against government. already To established prosaic terms, in more bar distinction double the traditional jeopardy prohibits the crime itself, estoppel, in a modest more whereas collateral relitigating government simply fashion, from forbids the of the crime.” the fact certain facts order to establish original; foot (emphasis citations and
Id. 343-44 at omitted) .22 note estoppel does hold that the of collateral We doctrine two reason is that this reasons. One bar action applied in criminal estoppel, doctrine of collateral when relitigation only cases, “bars the reintroduction against government.” Id. already facts established acquitted, but case, was not the defendant 343. and, ordinances, pled guilty to violations of the against been therefore, no facts have established prior es- Any were action state. facts established in tablished the defendant. 733, 740-44, 239 also, State, Schleiss v. See therein), (and Feela (1976) the cases cited N.W.2d 68 (7th 1984) (applying
Israel, Wisconsin F.2d Cir. law).
Second,
of the
because
difference in the burdens of
proof
actions,23
in civil and criminal
we conclude that the
*19
of
estoppel
doctrine
collateral
does not
bar
criminal
guilty plea
which follows a
to violations of
municipal ordinances, even if both actions arise from the
same
See,
transaction.
ex
State
rel. Flowers v.
De
H&SS
376,
81
partment,
387-89,
Wis. 2d
For the reasons, above-stated we reverse the court of appeals and pro- remand this action to the trial court ceedings opinion. consistent with this
By the
appeals
Court. —The
of
decision
the court of
reversed and the cause remanded to the circuit court for
proceedings
further
opinion.
consistent with this
(dissenting).
SHIRLEY
ABRAHAMSON,
S.
J.
For
purposes
assume, arguendo,
of this dissent I
there is
that
guarantees
no violation of state or federal constitutional
jeopardy.
out,
point
however,
I
that
if a
23
generally,
Walberg,
96,
See
State
109 Wis. 2d
325 N.W.2d
(1982),
explained,
where we
“There are two different burdens
proof
apply
preponderance
of
that
in civil actions:
fair
of the
convincing
preponder
evidence and clear and
evidence.
fair
The
applies
ordinary
ance standard
civil
actions.
clear and
convincing
applies
public policy
standard
in cases where
re
quires
higher
proof
ordinary
standard
than
civil ac
proof
required
tion. This
middle
so-called
burden
has been
fraud,
prosecutions
influence,
such cases as
undue
of civil
ordinance violations which are also crimes under
Id.
state law.”
omitted).
(footnotes
also,
at 102
Hamilton,
See
State v.
540,
532,
(1984),
Wis. 2d
First prohibiting the same or adopt conduct an ordinance penalizing prohibited by the statute to that similar damage property. See secs. 66.051(3), Op. Att’y 943.01, Gen. 1983-84. See also Stats. 599, 602-603, n. ; (1977) Karpinski, State v. 6, 285 N.W.2d light language 66.- 66.051 and
Second, of the secs. legislature 1983-84, I that the cannot believe Stats. subject separate person to two that a could be intended separate and two sanctions —one actions *20 single of town —for act and one “civil” the misconduct.
Third, prosecution on these facts I that conclude double contrary concept fairness as of fundamental to the I, process of sec. of 8, due clause art. found in the Karpinski, 92 State Wisconsin State Constitution. Cf. 612, 285 N.W.2d I reasons, For these dissent. BABLITCH, (dissenting). I believe A.
WILLIAM J. jeopardy of that the admonitions the double clause Constitution,1 process due clause of the Wisconsin Constitution,2 process the due clause of the United States Article of the “No Sec. 8 Wisconsin Constitution states: person may without due be held to answer for criminal offense process may law, person put and no the same of for offense added.) jeopardy punishment. (Emphasis twice in . . of 1 of Section the fourteenth amendment to the States United any part: deprive provides, Constitution “No State shall . . . person life, liberty, process of or property, without due of law.
apply allowing in this I case. Because believe that (State) pursue State of Wisconsin to its criminal com- plaint respondent, Kramsvogel Thomas J. (Kramsvogel), subject would him to for double his conduct in a manner offensive to notions of funda- fairness, mental I would affirm the decision the court appeals upholding the trial court’s dismissal of the complaint. After a summation of what I view as the essential developments facts and case, in this I will set out below process and due arguments support position. 12, 1983, municipal police responded
On June officer reports excessively Kramsvogel’s loud music at ignoring warnings home. volume, After to lower the Kramsvogel squad officer ordered pro- into his car and unnecessary him ceeded cite loud and for noise. As part procedure of the he ran a on routine radio check Kramsvogel outstanding and discovered two warrants. placed Kramsvogel He then him under arrest. became agitated, swore, and kicked squad out a window subsequently car. The officer issued a second citation disorderly conduct. On the reverse side of that cita- appeared Kramsvogel’s tion description there full actions, including breaking of the window. day Kramsvogel pled
Later guilty to the dis- orderly citation, offense, conduct subject a civil and was to a forfeiture $122.00 court. Krams- vogel contends he plea encompass understood his all of his conduct as out on set both sides of the citation. His contention undisputed remains in the record and was *21 accepted as fact both the trial court and the court appeals. day
The next the filed complaint State a criminal based on the same conduct. While there were variations language in the of the state complaint as com- pared municipal citation, the both trial the court appeals and the court of complaint viewed the criminal municipal proscribing the cita- the same conduct as as Kramsvogel requesting a motion dismissal tion. filed complaint. citing granted motion, Krams- trial The court vogel’s right protection jeopardy. from double The to appealed appeals which, un- to the court of in an State ruling opinion, published affirmed the trial court’s dis- missing complaint. petitioned The State then for court review.
The record shows that the trial court relied on the following Ramirez, dicta contained in State v. making original in its N.W.2d
ruling: grants municipalities to subordinate “If the state its a right in penal-type triable enact ordinances to duty prose- municipal court, it to correlate the has the double so not offend constitutional cutions shell, prosecution for an jeopardy provisions. a nut upon prosecution bars offense based a state statute upon based the same identical acts same offense municipal and vice ordinance court on Id. 153. versa.” adopt our apply statements I would likewise Kramsvogel’s case. applied Ramirez as to be the rule majority agree, and instead chooses does apply Ra than itself from Ramirez. Rather distance up appeals mirez, ruling it reverses the of the court of holding the cause action and remands trial court’s holding court, that “the to the circuit only multiple punishments.” prohibits clause opinion, Kramsvogel, majority p. 103. Krams State v. vogel subject now finds a state himself very he on the for which believed based conduct he long ago proceeding. I answered in the be contrary lieve fundamental this result to notions of challenged explicit dou fairness and can be on both the grounds implicit process ble due Ramirez. *22 admittedly
There neat, a certain attraction in the underlying reasoning almost mathematical structure the majority’s opinion. majority begins the by The de ciding Supreme that the United States Court’s decisions interpret jeopardy the double clause of the Fed eral involving Constitution should control all cases jeopardy brought double issues under Wisconsin consti doing, tutional so adopts In it law. the federal rule that jeopardy protects the double clause at two tempted prosecutions applicable the as rule arising jeopardy provision cases under the double state Helvering Mitchell, as See well. v. U.S. correctly majority points then vio out the regardless lations ordinances, of the nature they proscribe, presumptively civil, of the conduct are by law; by only both state statute case has authority to create crimes. majority places considerable reliance addition the Johnson, 585, 590, on Milwaukee 213 N.W. (1927), where this court said rule “[n]o prosecution better settled in Wisconsin than under city does not bar a same ordinance act under statute or the common law.” a state under Kramsvogel pled Because the offense to which guilty only majority civil, was and concludes could appeals improperly that the trial court and acted court dismissing, dismissal, in respectively upholding complaint the state on double grounds. key analysis majority’s in three
I take issue with
Johnson was
Milwaukee v.
respects. First,
the rule of
question
Su
explicitly
United
into
States
called
preme
Florida,
In
United
error
were in
to the extent
“that
the Florida courts
holding
in a mu
person
if a
has been tried
that —‘even
nicipal
which he is
court for the identical offense with
charged
court,
would not
a bar to the
in a state
this
”
person
proper
of such
in the
court.’
state
This,
Waller,
substance,
in
much like
397 U.S.
395.
the rule of Milwaukee v. Johnson which nevertheless
figures
majority’s
prominently
opinion. More
over, in a footnote the
of states
Court listed
decisions
appeared to
time
Florida
at the
follow the
rule
Waller,
Waller was decided.
n. 3.
I turn next to second argument. majority points out majority’s rightly The jeopardy3 prohibition the federal through four applicable the states has held to been Constitution. teenth amendment United States Maryland, mini At a Benton v. U.S. 784 are actions mum this means that defendants explicit protections States made in United entitled to the reads, fifth the United States amendment Constitution person subject part, the some shall be . . . as follows: “No for (Em put jeopardy to be twice . . .” limb. offence of life phasis added.)
Supreme interpreting Court decisions the federal double jeopardy majority, however, clause. The limits this ability provide greater protection court’s under provision by adop our state constitutional a wholesale holdings Supreme of the tion of United States Court decisions on federal double law. Footnote three opinion majority of the reads “Due as follows: to the similarity jeopardy] provisions, of these two we [double accepted Supreme have decisions of the United States governing provisions Court the double Rabe, both constitutions. State v. 61 n. (1980).” majority 291 N.W.2d Kramsvogel, State v. p. op., Rabe, 107. court stated: of the “Because similarity between the federal and provisions, Wisconsin *24 accepted, court this has applicable, where of decisions Supreme the United governing States Court as the dou jeopardy provisions ble both of constitutions.” Rabe at 7. (Emphasis 61 n. added.)
Rabe dealt with whether the and double state federal jeopardy provisions charging prevented the state from by negligent operation four counts of homicide a vehi- of allegedly cle where the defendant caused the deaths four single negligence. of act This court framed the multiplicity; issue as of is, one was the defendant charged single in more than one count offense? for separate We held that each count related to and dis- tinct jeopardy offense and did not violate either double provision. Under these we found reason- facts ing contained in federal applicable decisions to be to our interpretations jeopardy of the provision. state double jeopardy however, find not,
I would federal double applicable provision decisions state our constitutional every Notwithstanding rule in the federal instance. which allows for simultaneous or successive criminal offense, I afford for the would civil sanctions same greater protection under the state constitutional Kramsvogel’s po- jeopardy provision for in individuals sition. courts,
It state under well-established that state always expansive law, free are to take a more view of rights than federal individual do courts under federal Pruneyard Shopping e.g., See Center constitutional law. Robins, Oregon (1980). Hass, See 447 U.S. also (1975) ; Comment, Developments 420 U.S. in Interpretation Rights, Law — The Constitutional State ; (1982) Brennan, Harv. L. Rev. 1324 Constitu State Rights, tions and the Protection Individual 90 Harv. (1977); Comment, Rediscovering L. Rev. 489 the Wis Ques consin Constitution: Presentation Constitutional Courts, tions in State L.Wis. Rev. 483 wording jeop- Moreover, two double while of the they ardy similar, are identical. The clauses are person provision provides that no “for same punishment"; put may in offense be twice subject person provision, “be the federal that no shall put jeopardy of for the same offense to twice life involved, rights opt limb.” I Because individual are reading punishment appears for as it broad provision; certainly language state double counterpart. broader than the “life federal and limb” imprisonment punishments Fines and are violations By contrast, forfeitures, of criminal law. as the ma- my view these jority implies, punishments. are civil degree punishments but not various are different *25 being Kramsvogel, forfeiture kind. assessed a $122.00 punishment. subject municipal citation, for the was appeals found, the If, court of both the trial court and Kramsvogel de- complaint filed state criminal substantially municipal offense as scribed the same pled guilty, the double then citation to which he civil jeopardy provision State Constitution the Wisconsin dismissal, law, of the State’s under demands Kramsvogel’s complaint case. This result would necessarily follow under the federal constitutional double jeopardy provision, however, since it appear does not equates that a “jeopardy civil forfeiture and life limb” under federal law.
Finally, my jeopardy it is view very should at the least attach acquittals to convictions and pursu- entered “penal-type ant to Ramirez, ordinances.” at 153. While Ramirez did question not reach the of what constitutes a penal-type ordinance, the term appear would to encom- pass at any minimum pro- civil ordinance scribing an offense as set out in a state criminal statute. guidance question provided by
Additional on the Supreme Court, recently United States labeled a municipal ordinance, “quasi-criminal” because of its “prohibitory stigmatizing though and effect” even im posing only penalties. Flipside, civil Estates v. Hoffman Estates, 455 U.S. n. The Hoffman challenged defendant Estates Hoffman ordinance, imposing penalties drug civil for the sale of vagueness paraphernalia, as void for under federal con analysis stitutional doctrine. In its the Court acknowl edged “greater tolerance of enactments civil penalties rather than consequences because the imprecision qualitatively are less severe.” Id. at 498- “quasi-criminal”- 99. But nature of the Hoffman Estates prohibitory stigmatizing ordinance and “its and may relatively effect warrant a strict test [under vagueness Id. at 499. The mechanical doctrine].” deci sion to discard constitutional double considera involving tions in all prosecutions cases dual under a criminal statute civil ordinance is the antithesis of the stricter scrutiny “quasi-criminal” constitutional civil ordinances should attract. expand majority passes up opportunity
upon
clarify
language appearing
in Ramirez and
purposes
Estates
an-
Hoffman
alysis
Nevertheless,
under
state constitutional
law.
*26
majority opinion,
citation,
municipal
out in the
as set
guidelines
appear
do exist for dem-
to meet what
would
onstrating
re-
The record
a double
violation.
charged
municipal
under the
ordi-
veals that the offense
substantially
the same offense as
nance
this case was
proscribed
statute under which Krams-
the state
charged.
wording
vogel
subsequently
was
The
clearly prohibitory
under the
is
and conviction
ordinance
would,
eyes
ordinary citizen, have
ordinance
in the
of the
stigmatizing
reputation
effect on
of defendant.
demands
clause
state
I conclude
the reversal of the court of
rather
than
affirmance
upholding
the trial court’s dismissal
appeals’ decision
respect-
complaint
I
in this case.
therefore
the criminal
majority opinion.
fully
portion of the
dissent from that
process clauses of both
I further
the due
believe
prohibit
the result
federal constitutions
the state and
holding.
majority
play
“Fair
is
which follows from the
process
important
an
factor in
consideration of due
process
Truly,
fundamental
of law.
the concern of due
Valk,
Lyons
ex rel.
v. De
fairness.” State
omitted.)
(Footnote
200, 205,
On June law. The allegedly and state violated both charging him elected to cite municipality’s authorities Krams- ordinance. under its for this conduct answering believing the unlawful vogel, for all he was day’s events, pled guilty was to the conduct incident day very next the State a forfeiture. assessed charging brought complaint a violation of a a criminal very statute, complaint based on thought day for the conduct he had answered same he *27 before. record is silent as to whether he was warned pleading municipal at the time of to the citation that subsequent charges brought state criminal could be against conduct; presume him for the same we must he was not.
I would hold that chain of events is violative of process. substantive due I am further concerned with Kramsvogel’s the status of civil conviction in the subse- quent against proceeding criminal him. Can this convic- tion, public record, a matter of be entered as State’s evi- subsequent dence in the point ? case At what protection the constitutional self-incrimination implicated Kramsvogel ? Should have been advised of his right right to remain silent and his to the assistance of legal pleading charges counsel before to the in contained municipal Though majority citation? leaves important questions these questions unanswered these process. are at the heart of due concerning spe There are no hard and fast rules adequate procedures required process cific ensure due every WJR, case. Communications Comm’n guaran 265, (1949). U.S. “The Fifth Amendment particular procedure; protects tees no form of it sub rights.” Mackay Co., stantial Board v. Labor 304 U.S. (1938). that, minimum, I at a believe Krams- vogel right pleading had the at to know the time of his subject to the citation that he continued to be charges to state criminal for the conduct. This same noted, moreover, court has and state au duty prosecutions thorities have “the to correlate the[ir] so as not to offend the constitutional double provisions.” Ramirez 153. these authorities failed to inform
Because this case subsequent exposure state defendant of to the his prosecu- complaint and did not correlate their Constitution, tions as not offend the Wisconsin so fundamentally procedure Krams- unfair their was vogel. can, Municipal and law enforcement officials example, normally do, cooperate. For municipality had an ordinance of Brookfield Wisconsin prohibiting same conduct which violated sec. 161.41 possession (3), Stats., (dealing of a controlled sub stance) Karpinski, . State 285 N.W.2d Karpinski, approvingly this court out set procedure that Brookfield and state authorities fol faced with simi lowed that case when circumstances presented lar to those here: person possession is arrested for of mari- “[W]hen *28 juana the city Brookfield, procedure in the followed police is that the matter is referred to the Waukesha county attorney district review. The Waukesha county attorney district decides whether criminal county should be If initiated. the Waukesha attorney district determines that there should a crimi- prosecution, nal ney’s the case remains the district attor- county attorney office. If the Waukesha district prosecute, decides not to the case is referred to the office city attorney. city of Brookfield’s attor- The Brookfield
ney then prosecu- determines whether there should be a city tion under the ordinance.” Id. at 612. dismissing Finally, complaint the State’s would have salutary beyond effects the immediate benefit to Krams- vogel closing appeals, this case. The court of in the paragraph unpublished quoted closing opinion, its paragraph of the trial repeat- court’s decision. It bears ing here: appear “It would to this Court that in the interest of good administration, municipal law enforcement agencies yield should prosecutors to State matters arguably apparently or complaints contain of conduct of They criminal behavior. preempt prosecution should not by the issuance of a ordinance citation thus frustrating attempts by the attorney district later
prosecute under state law.” justice, the interest of interest individual and in the orderly sys- justice administration of our criminal tem, appeals’ up- I would affirm the court decision holding complaint dismissal Kramsvogel in this case. of Wisconsin ex rel.
State Myrle Hoover, Jr., Petitioner-Respondent, G. Gagnon, Appellant-Petitioner.
John R.
Supreme Court Argued April 3, May No. 1985.—Decided 1985. 84-460.
(Also reported 657.) in 368 N.W.2d