PUBLISHED OPINION
Case No.: 94-2362-CR
† Petition
for Review filed.
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DUNCAN LaPLANT,
Defendant-Appellant. †
Submitted on Briefs: June 5, 1995
Oral Argument: ---
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: September 12, 1996
Opinion Filed: September 12, 1996
Source of APPEAL Appeal
from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: ROBERT W. LANDRY, Reserve Judge
so indicate)
JUDGES:Wedemeyer,
P.J., Fine, J., and Michael T. Sullivan, Reserve Judge
Concurred:
Dissented:
Appellant
ATTORNEYSFor
the defendant-appellant the cause was submitted on the briefs of Michael O.
Bohren and Christine E. Ohlis of Milwaukee.
Respondent
ATTORNEYSFor
the plaintiff-respondent the cause was submitted on the briefs of E. Michael
McCann, district attorney, and David M. Lerman, assistant district
attorney, of Milwaukee.
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. 94-2362-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DUNCAN LaPLANT,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County: ROBERT W. LANDRY, Reserve
Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine, J., and Michael T. Sullivan, Reserve Judge.
SULLIVAN,
J. Duncan LaPlant raises several constitutional challenges to his
conviction, on a no contest plea, for six counts of unfair residential rental
trade practices. See
§§ 100.20(2), and 100.26(3), Stats. He argues that: (1) Laws of 1977,
ch. 418, § 923(3), and the ensuing Wis.
Adm. Code Chapter ATCP 134, violate Article IV, Section 18 of the
Wisconsin Constitution; (2) Wis. Adm.
Code § ATCP 134.04(2)(b)(1)-(4), is unconstitutionally vague; and (3)
Wis. Adm. Code Chapter ATCP
134, violates Article I, Section 1 of the Wisconsin Constitution, and the Equal
Protection Clause of the Fourteenth Amendment to the United States
Constitution. We reject LaPlant's
arguments and affirm.[1]
I.
Background.
The Milwaukee County
District Attorney's Office charged LaPlant, a residential rental landlord, with
thirty-six counts of unfair residential rental trade practices.[2] The charges alleged various violations of Wis. Adm. Code Chapter ATCP 134,
including: failure to disclose that rental dwellings lacked plumbing and
electrical systems in a safe operating condition; failure to disclose
structural or other conditions constituting a substantial hazard to the health
and safety of the tenants; failure to specify the date when the promised
repairs to the dwellings would be made; making promises before a rental agreement
was signed promising prospective tenants that repairs would be made to the
units and then failing to provide the tenant with a written copy of the
promises; and failure to make the promised repairs within the time represented.
LaPlant challenged the
complaint, arguing that the offenses violated the above constitutional
principles. The trial court denied
LaPlant's motion to dismiss and a jury trial was set. Thereafter, LaPlant pleaded no-contest to six counts of the
complaint, with the remaining counts to be read-in for sentencing. After he was sentenced, LaPlant appealed to
this court, renewing his constitutional challenges to his convictions.
II.
Analysis.
We begin our analysis
with the presumption that Laws of 1977, ch. 418, § 923(3), and Wis. Adm. Code Chapter ATCP 134,
are constitutional and that they must be upheld unless they are proven
unconstitutional beyond a reasonable doubt.
See Libertarian Party of Wisconsin v. State, 199
Wis.2d 791, 802, 546 N.W.2d 424, 430 (1996) (constitutionality of statutes); Richards
v. Cullen, 150 Wis.2d 935, 938‑39, 442 N.W.2d 574, 575‑76
(Ct. App. 1989) (constitutionality of administrative rules). With this presumption in mind, we address
each of LaPlant's constitutional challenges seriatim.
A. Article IV, § 18
of the Wisconsin Constitution.
We first address
LaPlant's argument that Chapter 418, § 923(3) of the Laws of 1977, and Wis. Adm. Code Chapter ATCP 134, are
private or local laws and therefore violate Article IV, Section 18 of the
Wisconsin Constitution.[3] We reject this argument.
“Sec. 18, art. IV of the
Wisconsin Constitution is designed to protect the public from legislative
enactment of statutes whose effect is unknown to legislators and to the people
of the state.” Soo Line R.R. Co.
v. DOT, 101 Wis.2d 64, 72, 303 N.W.2d 626, 630 (1981). “Section 18,
art. IV ... expressly prohibits a private or local bill from embracing more
than one subject and requires the subject of the bill to be expressed in the
title.” Id. at 70, 303
N.W.2d at 629. Hence, our supreme court
has held that:
[A] legislative provision which is
specific to any person, place or thing is a private or local law within the
meaning of art. IV, sec. 18, unless: 1) the general subject matter of the
provision relates to a state responsibility of statewide dimension; and 2) its
enactment will have direct and immediate effect on a specific statewide concern
or interest.
Milwaukee
Brewers Baseball Club v. DHSS, 130 Wis.2d 79, 115, 387
N.W.2d 254, 269 (1986).
LaPlant characterizes Wis. Adm. Code Chapter ATCP 134,
promul-gated by the Department of Agriculture, Trade, and, Consumer Protection
in February of 1980, as the “illegitimate offspring” of a study authorized by
the legislature in § 923(3) of Chapter 418, Laws of 1977. We address the statute and the
administrative regulation separately.
Section
923(3), provided:
Agriculture,
trade and consumer protection. (a) Landlord-Tenant Study. The Department of Agriculture Trade and
Consumer Protection shall conduct a landlord-tenant study to be completed on or
before December 1, 1978. The legal
research portion of the landlord-tenant study shall be conducted by the
Department of Justice under the coordination of a limited term employe project
coordinator provided to the Department of Agriculture, Trade and Consumer
Protection.
LaPlant
argues that § 923(3) was directed to one entity, the Department of
Agriculture, Trade, and Consumer Protection, and therefore, it is private law
violative of the state constitution.
This argument is specious.
Section 923(3) merely directed the Department to conduct a study which
may or may not ultimately have affected a statewide class consisting of
landlords and tenants. It is clear that
the general subject matter of § 923(3) had a statewide dimension—the
relationship between landlords and tenants throughout the state. See Milwaukee Brewers Baseball
Club, 130 Wis.2d at 115, 387 N.W.2d at 269. Further, the enactment of § 923(3) had a “direct and
immediate effect” on this statewide interest—it ordered the Department to
conduct a study. See id. This portion of Chapter 418 of the Laws of
1977 was not an improper private bill.
LaPlant also argues that
§ 923(3) was an improperly titled bill that was buried in a budget bill
without a definitive title, and that this violates Article IV, Section 18 of
the Wisconsin Constitution. See Soo
Line R.R. Co., 101 Wis.2d at 77, 303 N.W.2d at 632-33 (“The law cannot
embrace more than one subject and the subject must be expressed in the
title.”) LaPlant is correct that
§ 923(3) was part of a larger budget bill enacted by the Wisconsin
Legislature; however, § 923(3) was not a local or private bill and
therefore it need not follow the titling dictates of the Wisconsin
Constitution. In sum, § 923(3)
does not violate Article IV, Section 18 of the Wisconsin Constitution.
LaPlant next argues that
Wis. Adm. Code Chapter ATCP
134 is also violative of Article IV, Section 18 of the Wisconsin
Constitution. He contends that this
administrative code section was a sequela of the § 923(3) study and that
it was nothing more than the previously-proposed and defeated landlord-tenant
legislation that found its way into Chapter ATCP. We reject this argument because Chapter ATCP 134 was promulgated
by the Department of Agriculture, Trade, and Consumer Protection approximately
two years after passage of § 923(3) and under separate authority than
§ 923(3). Wis. Adm. Code Chapter ATCP 134 notes: “This chapter is
adopted under authority of s. 100.20(2), Stats.” See Wis. Adm. Code
Chapter ATCP 134, note. Section
100.20(2), Stats., authorizes the
Department to issue “general orders forbidding methods of competition in
business or trade practices in business which are determined by the department
to be unfair.” Hence, LaPlant's premise
is erroneous—Chapter ATCP 134 was not enacted under the authority of
§ 923(3).
B. Vagueness.
LaPlant next argues that
Wis. Adm. Code § ATCP
134.04(2)(b)(1)-(4) are unconstitutionally vague.[4] The unconstitutionality of an administrative
rule “must be established beyond a reasonable doubt.” Richards, 150 Wis.2d at 939, 442 N.W.2d at
576. An administrative rule is
unconstitutionally vague if it “is so obscure that men of ordinary intelligence
must necessarily guess as to its meaning and differ as to its
applicability.” City of Milwaukee
v. Wilson, 96 Wis.2d 11, 16, 291 N.W.2d 452, 456 (1980). A law does not have to attain the precision
of mathematics or science since “a certain amount of vagueness and
indefiniteness is inherent in all language.”
Monroe v. Funeral Directors & Embalmers Examining Bd.,
119 Wis.2d 385, 391, 349 N.W.2d 746, 749 (Ct. App. 1984). An administrative rule will withstand a
vagueness challenge if it is “sufficiently definite so that potential offenders
... are able to discern when they are approaching the zone of proscribed
conduct.” Schramek v. Bohren,
145 Wis.2d 695, 708, 429 N.W.2d 501, 506 (Ct. App. 1988).
LaPlant argues that the
phrases “good operating condition,” “safe operating condition,” “substantial
hazard to health and safety,” and “disclose,” which are peppered throughout Wis. Adm. Code § 134.04(2)(b), are
unconstitutionally vague. We
disagree. From the ordinary meaning of
these phrases, a landlord should not have difficulty determining when he or she
is reaching the zone of conduct proscribed by the ordinance. Hence, the phrases are not
unconstitutionally vague. Id.
We also deem meritless
LaPlant's assertion that the Code provides insufficient standards for law
officers to enforce it objectively. The
Code sufficiently delineates landlord conduct that is violative, and provides
clear standards for enforcement.
C. Equal Protection.
Finally, LaPlant argues
that Wis. Adm. Code Chapter ATCP
134 violates his equal protection rights under the federal and state
constitution. He correctly notes that
the Wisconsin Supreme Court has held that Article I, Section 1 of the Wisconsin
Constitution is substantially equivalent to the equal protection provisions of
the Fourteenth Amendment. GTE
Sprint Communications Corp. v. Wisconsin Bell, Inc., 155 Wis.2d 184,
193, 454 N.W.2d 797, 801 (1990) (stating the equal protection clauses of the
Wisconsin and United States Constitutions are substantially similar). LaPlant argues that Chapter 134 ATCP
violates equal protection in two ways: (1) it creates an unreasonable
classification because it regulates landlords and not tenants; and (2) it
creates an unreasonable distinction between residential landlords, regulated by
the chapter, and commercial landlords, not regulated by the chapter. We reject his argument.
Unless a regulation
affects a person's fundamental right or creates a classification based on a
suspect class, this court uses the “rational basis test” in determining whether
the regulation withstands an equal protection challenge. See Szarzynski v. YMCA, Camp
Minikani, 184 Wis.2d 875, 886, 517 N.W.2d 135, 139 (1994). Chapter ATCP 134 does not implicate a
fundamental right, nor is it based on a suspect classification—therefore, the
“rational basis test” applies.
Under the “rational
basis test,” we must uphold a legislative classification if any reasonable
basis exists to justify that classification.
To decide if there is any reasonable basis, the court is obligated to
find or construct, if possible, a rationale that might have influenced the
legislature and that reasonably upholds legislative determinations. K.C. v. DHSS, 142 Wis.2d 906,
916, 420 N.W.2d 37, 40 (1988).
The Department could
reasonably distinguish between landlords and tenants in promulgating the code
provisions. Regulation of a business's
trade practices is a rational function of government, irrespective of any
regulation of that business's customers.
Further, a distinction between residential and commercial landlords is
also rational given the differing nature of residential and commercial
leases. There is no equal protection
violation here.
By the Court.—Judgment
affirmed.
[1] Wis. Adm. Code Chapter ATCP 134 was originally promulgated as Wis. Adm. Code Chapter Ag 134. It was renumbered as Chapter ATCP 134 under § 13.93(2m)(b)1, Stats. All references in this opinion are to Chapter ATCP 134.
[2] The number of charges filed against LaPlant varied throughout the proceedings until the State, with leave of the court, amended to a final thirty-six count complaint.
[3]
Section 18, Article IV of the Wisconsin Constitution provides:
Title of private bills. No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.
[4]
Wis. Adm. Code § ATCP
134.04(2)(b)(1)-(4), provide:
(2) Code violations and conditions affecting
habitability. Before entering
into a rental agreement or accepting any earnest money or security deposit from
the prospective tenant, the landlord shall disclose to the prospective tenant:
....
(b) The following
conditions affecting habitability, the existence of which the landlord knows or
could know on basis of reasonable inspection, whether or not notice has been
received from code enforcement authorities:
1. The
dwelling unit lacks hot and cold running water, plumbing or sewage disposal
facilities in good operating condition.
2. Heating
facilities serving the dwelling unit are not in safe operating condition, or
are not capable of maintaining a temperature in the dwelling unit of at least
67°F (19°C) during all seasons of the year
in which the dwelling unit may be occupied.
3. The
dwelling unit is not served by electricity, or the electrical wiring, outlets,
fixtures or other components of the electrical system are not in safe operating
condition.
4. Any structural or other conditions in the dwelling unit or premises which constitute a substantial hazard to the health or safety of the tenant, or create an unreasonable risk of personal injury as a result of any reasonably foreseeable use of the premises other than negligent use or abuse of the premises by the tenant.