PUBLISHED OPINION
Case No.: No. 94-3188-CR
†Petition for
review filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
C&S MANAGEMENT, INC., d/b/a
CROSSROADS NEWS AGENCY,
Defendant-Appellant.†
Submitted on Briefs: November 20, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: December 27, 1995
Opinion Filed: December 27, 1995
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Kenosha
(If "Special", JUDGE: David M. Bastianelli
so indicate)
JUDGES: Anderson,
P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the defendant-appellant, the cause was submitted on the briefs of Stephen
M. Glynn and Robert R. Henak of Shellow, Shellow & Glynn,
S.C. of Milwaukee.
Respondent
ATTORNEYSOn
behalf of the plaintiff-respondent, the cause was submitted on the brief of James
E. Doyle, attorney general, and Thomas J. Balistreri, assistant
attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED December 27, 1995 |
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. 94-3188-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
C&S MANAGEMENT,
INC., d/b/a
CROSSROADS NEWS
AGENCY,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Kenosha County: DAVID M. BASTIANELLI, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
BROWN, J. Under
Wisconsin law a corporation defending criminal charges is not entitled to a
preliminary examination. C&S
Management, Inc. claims that this legislative classification, singling out
corporations from all other felony defendants, violates the Equal Protection
Clauses of the federal and Wisconsin constitutions. It asserts that there is a fundamental right to a preliminary
examination and that the State must therefore provide all criminal defendants
with this hearing. Alternatively, and
assuming there is no fundamental right involved, C&S Management argues that
there is no rational basis to support this legislative classification. We conclude, however, that C&S
Management will not be deprived of a fundamental right. Therefore, because we also conclude that
there is a rational basis supporting this classification, we affirm the trial
court's order denying its motion for a preliminary examination.
In September 1994, the
State charged C&S Management with two counts of exposing a minor to
pornographic materials, a Class E felony.
See § 948.11(2), Stats. As a result, C&S Management moved the
trial court to hold a preliminary examination on the charges. It claimed that the exclusion of
corporations from the class of defendants entitled to such hearings under
§ 971.02, Stats., violated
state and federal equal protection guarantees.
The motion was denied and C&S Management renews its arguments to
this court. We review these
constitutional challenges de novo. Village
of Oregon v. Waldofsky, 177 Wis.2d 412, 417, 501 N.W.2d 912, 913 (Ct.
App. 1993).
Although C&S
Management raises separate claims under the federal and Wisconsin
constitutions, the respective clauses are substantially similar and thus demand
the same legal analysis. See Treiber
v. Knoll, 135 Wis.2d 58, 68, 398 N.W.2d 756, 760 (1987). Courts take different approaches to equal
protection analysis depending upon two factors: who is affected and what stakes are involved. See id. at 70, 398 N.W.2d at
760. If the statute is targeted at a
“suspect class” or affects a “fundamental right” courts will strictly
scrutinize the statutory classification to determine if it promotes a
compelling government interest and is narrowly drawn to achieve such interests. See id. Accordingly,
legislative attempts to create classifications on the basis of race or national
origin would receive stringent judicial attention. See State v. Martin, 191 Wis.2d 646,
651-52, 530 N.W.2d 420, 422-23 (Ct. App. 1995). Likewise, statutory classifications affecting fundamental rights
like procreation and free speech would be subject to strict scrutiny. See id.
Where such protected
classes or rights are not implicated, however, judicial review is much more
limited. The analysis applied to these
forms of legislation is termed the “rational basis test” and only measures whether
the classification is rationally related to a legitimate legislative
purpose. See State ex rel. Grand
Bazaar Liquors, Inc. v. City of Milwaukee, 105 Wis.2d 203, 209, 313
N.W.2d 805, 809 (1982).
C&S Management does
not argue that it is a member of a protected class. Nonetheless, it asks us to aggressively review § 971.02, Stats., claiming that the “right” to a
preliminary examination established by the statute is a “fundamental
right.” In support it primarily relies
on State v. Richer, 174 Wis.2d 231, 240-41, 496 N.W.2d 66, 69
(1993), which described how the preliminary examination was designed to limit
the expense, delay, anxiety and embarrassment of unnecessary public trials that
are borne by both the defendant and the community. C&S Management also cites various authorities which suggest
that the preliminary examination provides a defendant with various “collateral
benefits,” such as the opportunity to view how the government's witnesses will
testify. See, e.g., Coleman v.
Alabama, 399 U.S. 1, 9 (1970) (“[T]he skilled interrogation of witnesses
by an experienced lawyer can fashion a vital impeachment tool for use in
cross-examination of the State's witnesses at the trial ¼.”). It then seems to claim that these
protections for the criminal defendant (and the community) are important,
indeed, so important that they must be judicially acknowledged as a
“fundamental right.”
The State challenges
C&S Management's characterization of the stakes involved in a preliminary
examination. It acknowledges that the preliminary
examination serves as the vehicle for protecting a defendant's constitutional
right against incarceration on unsubstantiated charges. See County of Riverside v.
McLaughlin, 500 U.S. 44, 56-58 (1991) (Fourth Amendment requires
judicial determination of probable cause within forty-eight hours of
warrantless arrest and incarceration of suspect); see also Wayne R. LaFave and Jerold H. Israel, Criminal Procedure § 14.2(a)
(1984) (describing constitutional foundations to the preliminary examination requirement). The State asserts that the desire to prevent
incarceration on unsupported charges is therefore the primary legislative
purpose behind the preliminary examination requirement. See State v. Solomon,
158 Wis. 146, 150, 147 N.W. 640, 642 (1914).[1] The State further contends that this
statutory requirement evinces a legislative remedy which fulfills the
constitutional mandate of providing incarcerated defendants with a judicial
determination of probable cause very soon after arrest.
To further bolster this
argument, the State points to another class of criminal defendants, those
persons charged with misdemeanors, who are also denied a preliminary
examination. See § 971.02(1), Stats. (“If the defendant is charged
with a felony ¼.”). This class of defendants, the State claims,
is denied the benefit of a preliminary examination because misdemeanant
defendants generally are released on very low (or no) bail. See § 969.02(8), Stats. (setting maximum bail for
misdemeanor defendants at the maximum fine for the offense); see also Solomon,
158 Wis. at 150, 147 N.W. at 642 (concluding that there was no statutory right
to a preliminary examination for misdemeanor charges that were only triable
before the former district courts).
We agree with the
State's analysis. Constitutional case
law makes clear that a judicial determination of probable cause must only be
afforded incarcerated, or likely incarcerated, defendants. Our statute which calls for preliminary
examinations satisfies that mandate.
Thus, while we also partially agree with C&S Management's position
that the statute implicates a “fundamental right,” we hold that the fundamental
right served by the statute is limited to providing a judicial determination of
probable cause for incarcerated defendants or those who would be incarcerated
but for the payment of a bond.
We further acknowledge
that the statute also provides what our supreme court has termed “collateral benefits.” But these benefits, which are only an
incidental outgrowth of our preliminary hearing procedure, are not fundamental
rights. Rather, these benefits are
exactly what the case law says they are—collateral. See Whitty v. State, 34 Wis.2d 278, 287, 149 N.W.2d
557, 560 (1967) (“These incidental fringe benefits ¼ are
not the real purpose of a preliminary examination ¼.”), cert.
denied, 390 U.S. 959 (1968). While
it is true that corporations lose these “collateral benefits” under the
statute, it is not true that the corporations lose a fundamental right. Since they cannot be incarcerated, the
fundamental right component of the preliminary examination procedure has no
relevance to corporations. They are
denied only the nonfundamental benefits associated with the procedure. And these are rooted in legislative
largesse, not constitutional mandate. See
State v. Dunn, 121 Wis.2d 389, 394, 359 N.W.2d 151, 153 (1984). We therefore hold that the corporate
defendant does not have a fundamental right to a preliminary examination under
§ 971.02, Stats.
We now turn to the
second phase of the equal protection analysis and ascertain whether there is a
rational basis supporting the legislature's decision to place corporations into
a special subclass. Here, C&S
Management bears the burden of proving that the classification within the
preliminary examination requirement is unconstitutional beyond a reasonable
doubt. See State v.
McManus, 152 Wis.2d 113, 129, 447 N.W.2d 654, 660 (1989).
Our search for a
rational basis is informed by the fundamental right analysis outlined
above. We have identified how the
preliminary examination requirement is part of a legislative effort to protect
the fundamental constitutional rights of persons who may be incarcerated on
baseless charges. In addition, we also
recognize that the many secondary purposes of the preliminary examination
outlined in Richer, e.g., preventing a trial when there are no
grounds for charging, all essentially reflect a second legislative
concern: the proper use of judicial
resources. See Richer,
174 Wis.2d at 240-41, 496 N.W.2d at 69.
Thus, the rationale
underlying the corporate exception begins to emerge. The United States Constitution requires the legislature to
allocate court time to insure that every incarcerated person is given access to
a judge for a determination of probable cause.
On the other hand, the legislature has also recognized that a more
intricate evidentiary hearing during the pretrial phase may reveal weaknesses
in the State's case that would otherwise go unchallenged until trial. Requiring a preliminary hearing, as opposed
to just the ex parte determination that the Constitution requires, thereby
saves court time over the long run.
Thus, the legislature
had two goals when it created the preliminary hearing procedure. It satisfied the constitutional concern that
a judicial hearing be afforded to those exposed to the possibility of pretrial
jail time. And it also satisfied a
desire to help the judicial system operate efficiently by using the preliminary
hearing as a means of uncovering weak cases before they went to trial. But just because the procedure carried with
it certain incidental benefits for criminal defendants does not mean that the
benefits have to be provided to every criminal defendant.
Since corporations
cannot be incarcerated, the legislature faced no constitutional mandate to
provide these hearings. Moreover, it
obviously decided that this class of defendants should not be given a
preliminary hearing simply to insure that there is a strong case because there
are other procedures that can serve this goal, namely, a motion to dismiss the
complaint. See § 971.31(2),
Stats. Thus, the only remaining reason to justify granting corporations
a statutory right to a preliminary examination was to provide them with the
“collateral benefits” of being able to target potential weaknesses in the
State's case. Here, however, the
legislature concluded that the necessary court time could be put to a better
use. Indeed, the court time that
C&S Management asks us to allocate for its preliminary examination can instead
be used to permit a natural person who is behind bars the opportunity for an
earlier judicial determination of probable cause.
Therefore, the creation
of the corporation exception to the preliminary hearing requirement was nothing
more than a rational policy choice about how to best proceed in operating an
efficient court system. Although this
legislative choice denies corporations the added fruits that a preliminary
examination gives to other defendants, this does not mean that the legislature
was forbidden from making this decision.
C&S Management,
however, argues that the specialized corporate exception does not make sense
when one considers that other forms of business enterprises, such as
partnerships, could also be criminally charged and could not be incarcerated,
but would nonetheless be entitled to a preliminary examination.
Assuming that these
other entities could be criminally charged, C&S Management's argument is
founded on a premise that all legislation must be perfectly designed to meet
its purpose. While this may be a
requirement when courts apply strict scrutiny, see, e.g., Treiber,
135 Wis.2d at 70, 398 N.W.2d at 760 (is the legislation “narrowly drawn”), such
statutory perfection is not required to pass the rational basis test. Cf. Williamson v. Lee Optical of
Okla., Inc., 348 U.S. 483, 489 (1955) (“The legislature may select one
phase of one field and apply a remedy there, neglecting the others.”). And although the corporate exception
originally was set out in 1881, see Laws of 1881, ch. 173, § 1, we
observe that the legislature did add limited liability companies to this class
when it introduced this form of business organization in 1993. See 1993 Wis. Act 112,
§ 425. Contrary to C&S
Management's position, the legislature is pursuing this issue in a rational
manner.[2]
Finally, we address
C&S Management's argument that the Remedy for Wrongs provision of the
Wisconsin Constitution requires that we modify the law and expand the statutory
right to a preliminary examination to include any defendant who may benefit
from such a hearing. See Wis. Const. art. I, § 9.[3] As the State illustrates, however, this
provision may only be used to correct a legislative oversight or error when
such a correction is needed to secure a preexisting right. See James A.O. v. George C.B.,
182 Wis.2d 166, 175, 513 N.W.2d 410, 413 (Ct. App. 1994). Since we hold above that a corporation has
no fundamental right to a preliminary hearing and that there is a rational
basis to support the denial of this statutory right to corporations, this court
cannot rely on this article as a basis for rewriting the law. Compare Collins v. Eli Lilly Co.,
116 Wis.2d 166, 182, 342 N.W.2d 37, 45 (“Because we conclude Therese Collins is
entitled to a remedy at law for her injuries, we now consider [a remedy] to
support her right to recovery.”), cert denied sub nom., E.R.
Squibb & Sons, Inc. v. Collins, 469 U.S. 826 (1984).
In summary, the
legislature has developed a strategy whereby the court time that could be used
to give corporations preliminary examinations is allocated to areas where there
is a more pressing need. This is not an
unreasonable goal. Nor is its strategy
for achieving this goal without any rational basis.[4]
By the Court.—Order
affirmed.
[1] Although the supreme court's recent description of the purposes behind the preliminary examination in State v. Richer, 174 Wis.2d 231, 240-41, 496 N.W.2d 66, 69 (1993), made no reference to the conclusion in State v. Solomon, 158 Wis. 146, 150, 147 N.W. 640, 642 (1914), that preventing needless incarceration was the legislative purpose behind the preliminary hearing, we attribute this oversight to the different questions presented in each case. In Solomon, the defendant brought a direct claim that he was entitled to a preliminary hearing. See id. at 148, 147 N.W. at 641. The issue in Richer, however, focused on the State's ability to bring additional charges against a defendant after there had already been a preliminary examination. See Richer, 174 Wis.2d at 236, 496 N.W.2d at 67. Indeed, the defendant in Richer was already bound over for trial. See id. at 237, 496 N.W.2d at 67. Thus, the Richer court had no reason to address whether preventing incarceration was a policy supporting the preliminary hearing requirement.
[2] C&S Management also complains that the corporate exception, which dates back to 1881, was founded on the “anti-corporate feelings” which were prevalent in the legislature during the latter part of the 19th century. To support its argument, it cites various newspaper articles from that period which document public sentiment. Nevertheless, we have identified a rational basis for this legislation. We need not address this specific argument because under the rational basis test, we must hold in favor of constitutionality if we can conceive of any reason on which the legislation could reasonably be based. See State v. McManus, 152 Wis.2d 113, 129, 447 N.W.2d 654, 660 (1989).
Remedy for wrongs. Section 9. Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obligated to purchase it, completely and without denial, promptly and without delay, conformably to the laws.