PUBLISHED OPINION
Case No.: 96-0790
Complete
Title
of
Case:STATE OF
WISCONSIN,
Plaintiff-Appellant,
v.
DANIEL J. BECK,
Defendant-Respondent.
Submitted
on Briefs: August 12, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: September 12, 1996
Opinion
Filed: September
12, 1996
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Crawford
(If
"Special" JUDGE: Michael
Kirchman
so
indicate)
JUDGES: Eich, C.J., Dykman, P.J., and Vergeront, J.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the plaintiff-appellant the
cause was submitted on the briefs of Timothy C. Baxter, district
attorney of Crawford County and Michael A. Lutz of the Department
of Natural Resources of Madison.
Respondent
ATTORNEYSFor the defendant-respondent the
cause was submitted on the brief of Mark A. Peterson of Peterson,
Antoine & Peterson, S.C. of Prairie du Chien.
COURT OF
APPEALS DECISION DATED AND
RELEASED September
12, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0790
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Appellant,
v.
DANIEL
J. BECK,
Defendant-Respondent.
APPEAL
from an order of the circuit court for Crawford County: MICHAEL
KIRCHMAN, Judge. Reversed and cause
remanded.
Before
Eich, C.J., Dykman, P.J., and Vergeront, J.
DYKMAN,
P.J. On July 7, 1995, Daniel Beck was
clamming in the Mississippi River on the west side of the main channel of the
river in Iowa waters. Wisconsin
Department of Natural Resources conservation wardens cited Beck for possession
of undersize clam shells in violation of Wis.
Adm. Code § NR 24.09(1)(a).[1] Prior to trial, Beck moved to dismiss the
case for lack of personal jurisdiction.
The circuit court agreed that it lacked jurisdiction and dismissed the
case. The State appeals.
Personal
jurisdiction is a question of law that we review de novo. Marsh v. Farm Bureau Mut. Ins. Co.,
179 Wis.2d 42, 52, 505 N.W.2d 162, 165 (Ct. App. 1993). To determine whether Crawford County has
personal jurisdiction over Beck, we must interpret both Wisconsin's
constitution and statutes. We interpret
provisions of the Wisconsin Constitution and Wisconsin statutes de novo. Polk County v. State Pub. Defender,
188 Wis.2d 665, 674, 524 N.W.2d 389, 392 (1994); State v. Eichman, 155 Wis.2d 552, 560, 456 N.W.2d
143, 146 (1990).
The
Wisconsin Constitution sets the western boundary of the state at "the
center of the main channel" of the Mississippi river. Wis.
Const. art. II, § 1. As a
general rule, Wisconsin's jurisdiction extends "to all places within the
boundaries declared in article II of the constitution." Section 1.01, Stats. Under this
general rule, a Wisconsin court would not have jurisdiction over Beck.
The
United States Congress, however, has extended to Wisconsin concurrent
jurisdiction over the boundary waters of the Mississippi River. The act of Congress admitting Wisconsin to
the Union provides in relevant part:
[T]he said State of Wisconsin shall have concurrent
jurisdiction on the Mississippi, and all other rivers and waters bordering on
the said State of Wisconsin, so far as the same shall form a common boundary to
said State and any other State or States now or hereafter to be formed or
bounded by the same.
Act of Aug. 6, 1846, 9 Stat. 56, 57.[2] Wisconsin has recognized this concurrent
jurisdiction. Our constitution
provides: "The state shall have concurrent jurisdiction on all rivers and
lakes bordering on this state so far as such rivers or lakes shall form a
common boundary to the state and any other state or territory now or hereafter
to be formed, and bounded by the same."
Wis. Const. art. IX, §
1. In State v. Nelson, 92
Wis.2d 855, 285 N.W.2d 924 (Ct. App. 1979), we held that Wisconsin had
concurrent jurisdiction over a violation of Wisconsin's administrative code
that occurred on the Minnesota side of the Mississippi River.[3]
Wisconsin
cannot exercise its concurrent jurisdiction over all offenses occurring on the
Mississippi River, however. In Nelson,
we stated:
[C]oncurrent jurisdiction means that two powers have
jurisdiction over one and the same place.
This is not to be construed to mean that one state has authority to
punish an act in violation of its laws beyond its territory where the act is
not prohibited by the laws of the neighboring state. Where the two states have similar laws, however,
concurrent jurisdiction allows a conviction in either state for violation of
such laws.
Id. at 858-59, 285 N.W.2d at 927 (emphasis added).
In
their briefs, the State and Beck debate whether the laws of Wisconsin and Iowa
are similar within the meaning of Nelson. The State argues that similar in this
context means "nearly corresponding; resembling in many respects; somewhat
like; having a general likeness." See
Black's Law Dictionary 1383 (6th
ed. 1990). We disagree.
Our
conclusion in Nelson was based on the United States Supreme
Court's decision in Nielsen v. Oregon, 212 U.S. 315 (1909). In construing the concurrent jurisdiction of
Oregon and Washington over the Columbia River,[4]
the Nielsen Court stated that when an act is "prohibited
and punishable by the laws of both states, the one first acquiring
jurisdiction of the person may prosecute the offense." Id. at 320 (emphasis added).[5] The Court concluded that a state which
prohibits an act cannot prosecute and punish for that act when it is committed
within the territorial limits of a neighboring state that authorizes the
act. Id. at 320-21.
If
we were to use the Black's Law Dictionary definition of "similar," we
would contravene Nielsen's holding. A Wisconsin law could be more restrictive than an Iowa law, yet
still resemble the Iowa law in many respects.
In this situation, Wisconsin would have concurrent jurisdiction under Nelson
because the laws are similar, but may not have concurrent jurisdiction under Nielsen
because the act prohibited by the laws of Wisconsin might not be prohibited by
the laws of Iowa. Certainly the Nelson
court did not intend similar to be defined in such a way as to contravene
United States Supreme Court authority.
Instead,
we conclude that, for purposes of Nelson, a Wisconsin law is
similar to an Iowa law if the act sought to be punished by Wisconsin is also a
punishable act in Iowa. Using this
definition, we construe the language of Nelson in a manner
consistent with Nielsen.
The laws are similar because they will punish the same offense, and Nielsen
is satisfied because the offense will be punishable in both states.
Therefore,
we need to determine whether the act for which Wisconsin sought to punish Beck
was also punishable in Iowa. Beck's
citation stated that he possessed undersize mapleleaf, pimpleback, threeridge
and washboard clams. Both Wis. Adm. Code § NR 24.09 and Iowa Admin. Code r. 571-87.1(2) (1992)[6]
provide minimum size requirements for commercially harvested clams. Both Wisconsin and Iowa place the minimum
legal size for mapleleaf and pimpleback clams at two and three-quarter inches
and the minimum legal size for washboard clams at four inches. We conclude that with regard to mapleleaf,
pimpleback and washboard clams, Wisconsin's law is similar to Iowa's.
The
only difference between Iowa and Wisconsin law relevant to this case is
contained in the requirements for threeridge clams. Wisconsin places the minimum legal size at two and five-eighths
inches, while Iowa places the minimum legal size at two and three-quarter
inches. However, because Wisconsin's
law is less restrictive than Iowa's law, a violation of Wisconsin's law will
always be a violation of Iowa's law and, for purposes of Nelson,
the laws are similar. Therefore,
Wisconsin has concurrent jurisdiction.
Beck
argues that Nelson is distinguishable because Nelson was a
Wisconsin resident and was apprehended when he returned to Wisconsin, while
Beck is an Iowa resident and never entered Wisconsin waters. We disagree. Nelson did not conclude that Wisconsin had
concurrent jurisdiction over Nelson because he was a Wisconsin resident and was
apprehended when he returned to Wisconsin; rather, Wisconsin had jurisdiction
over Nelson because "[h]e was taking fish from the boundary waters in a
manner prohibited by both states."
Nelson, 92 Wis.2d at 859, 285 N.W.2d at 927.
Beck
also argues that because the State did not introduce the Iowa law at the motion
to dismiss, the State is not allowed to introduce Iowa law here for our
review. Beck maintains that "[i]t
is a general rule that issues not raised at trial prior to an appeal cannot be
raised on appeal because only that which was ordered as final and introduced in
the trial phase is reviewable on appeal."
Beck does not cite to any legal authority supporting his position, thus
not considering the general rule that we will not consider arguments
unsupported by references to legal authority.
State v. Shaffer, 96 Wis.2d 531, 545-46, 292 N.W.2d 370,
378 (Ct. App. 1980). Nonetheless,
Beck's argument fails because an exception to the general rule to which he
refers is made for questions of law that merit discussion. Wirth v. Ehly, 93 Wis.2d 433,
443-44, 287 N.W.2d 140, 145-46 (1980).
Whether the states' laws are similar is a question of law that we should
address.
Our
analysis does not end with our conclusion that a Wisconsin court may exercise
jurisdiction over Beck. We must also
determine whether Crawford County is the proper venue for this action. The provisions of the Wisconsin
Administrative Code regulating clam size were promulgated under § 29.38(8),
Stats.[7] As a general rule, all actions to recover
forfeitures for violations of administrative rules promulgated under § 29.39(8)
"shall be heard in the circuit court for the county where the offense
occurred." Section 23.50(2), Stats.
Under this general rule, Crawford County would not be the proper venue
because the alleged offense did not occur in Crawford County.
However,
§ 23.90(5), Stats.,
provides, "If an offense is committed on boundary waters at a place where
2 or more counties have common jurisdiction under s. 2.03 or 2.04 or under any
other law, the prosecution may be in either county." Under § 2.04, Stats., Crawford County has jurisdiction in common over all
offenses committed on the Mississippi River.[8] Therefore, the prosecution may take place in
Crawford County under § 23.90(5).
Section
23.90(5), Stats., also provides,
"The county whose process against the offender is first served shall be
conclusively presumed to be the county in which the offense was
committed." There is no evidence
that a county other than Crawford County first served process against Beck for
his alleged possession of undersized clams.
Therefore, we presume that the offense was committed in Crawford County.
By
the Court.—Order reversed and
cause remanded.
[1] The citation actually listed a violation of
§ 29.38, Stats., which
enabled the DNR to enact Wis. Adm. Code
§ NR 24.09. The State admits that it
may need to amend the citation. This
issue was not raised on appeal.
[2] A similar provision is found in the act
admitting Iowa to the Union. See
Act of Mar. 3, 1845, 5 Stat. 742, 743.
[3] In Nielsen v. Oregon, 212 U.S.
315, 320 (1909), the United States Supreme Court stated the purpose behind the
grant of concurrent jurisdiction to states bordered by common waters:
Undoubtedly one purpose, perhaps the primary purpose, in
the grant of concurrent jurisdiction, was to avoid any nice question as to
whether a criminal act sought to be prosecuted was committed on one side or the
other of the exact boundary in the channel, that boundary sometimes changing by
reason of the shifting of the channel.
[4] The act granting Oregon concurrent
jurisdiction over the Columbia River is similar to the act granting Wisconsin
concurrent jurisdiction over the Mississippi River. See Act of Feb. 14, 1859, 11 Stat. 383, 383.
[5] This concurrent jurisdiction extends to
"civil as well as criminal matters," and applies to offenses malum
prohibitum as well as malum in se.
Nielsen v. Oregon, 212 U.S. 315, 320 (1909).
[6] The State requests that we take judicial
notice of this Iowa Administrative Code section. The State relies on § 891.01(1), Stats., which stated, "Every court of this state shall
take judicial notice of the common law and statutes of every state, territory
and other jurisdiction of the United States." However, § 891.01 was repealed by Supreme Court order
effective January 1, 1974. See
Wis. Stat. Ann. § 891.01
(West Supp. 1995).
The
Uniform Judicial Notice of Foreign Law Act is now codified at § 902.02, Stats.
Section 902.02(1) is substantially identical to the former § 891.01(1), Stats., and subsection (2) provides
that this court "may inform itself of such laws in such manner as it may
deem proper." We have done so.