State v. Huebner

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 74. (dissenting). On June 21, 1996, the legislature mandated the use of a six-person jury in misdemeanor actions commenced after that date. 1 On June 19,1998, this court declared the law mandating a six-person jury in misdemeanor cases unconstitutional. State v. Hansford, 219 Wis. 2d 226, 243 , 580 N.W.2d 171 (1998).

¶ 75. When this court declares a state law unconstitutional, the law is unconstitutional ab initio, that is, the law is null from the date it was adopted. 2 Thus, *514 the law mandating a six-person jury in misdemeanor cases was null from the date it was enacted and should have no impact on this court's decision in the present case. 3

*515 ¶ 76. The defendant in this case was arrested on November 16, 1997, and tried by a six-person jury on February 17 and 18, 1998, when no statute was "in existence" authorizing a six-person jury. Therefore, the present case cannot be distinguished from this court's recent decision in State v. Wingo 4 and the court of appeals' decision in State v. Cooley. 5

¶ 77. In Wingo the conviction was reversed when a defendant was tried and convicted under the six-person jury statute even though the defendant did not object to the six-person jury. In Wingo, as in the present case, no statute was in existence at the time of trial authorizing a six-person jury. But in Wingo the action was commenced prior to the effective date of the unconstitutional statute authorizing a six-person jury, while in the present case the six-person jury statute *516 was not "in existence" because it was later declared unconstitutional.

¶ 78. However, in both Wingo and in the present case, the defendant failed to object to the six-person jury at trial. In Wingo we held that the defendant did not waive his right to trial by a twelve-person jury and did not forfeit his right to address the issue on appeal. The defendant in this case is in the same position as the defendant in Wingo. Therefore the Wingo case governs the present case.

¶ 79. In Cooley, 6 the other case that is indistinguishable from the present case, the defense counsel, not the defendant, agreed to proceed with an eleven-person jury. The court of appeals concluded that because the defendant had not personally waived the right to a jury of fewer than twelve people, the conviction must be reversed.

¶ 80. In Wingo and in this case, as in Cooley, no statutory authorization existed to try a defendant with a jury of fewer than twelve people. None of these defendants agreed personally to a trial by a jury of fewer than twelve people. Thus the result in this case, just as in Wingo and Cooley, should be a reversal of the defendant's conviction and a remand for a new trial.

II

¶ 81. Regardless of whether I choose to rely on the principle that the law mandating six-person jury trials in misdemeanor cases was void ab initio, I would still dissent from the majority's holding that the defendant forfeited his right to a twelve-person jury when he did not object to the six-person jury at trial.

*517 ¶ 82. Before I explain my dissent, I want to express my agreement with the following principles set forth in the majority opinion:

• The right to a trial by jury in Wisconsin is a "fundamental right" that "cannot be forfeited by mere failure to object [at trial]." Majority op. at ¶ 14. 7

• Some constitutional rights may be forfeited on appeal if they are not raised at trial; others will not be forfeited by mere failure to object at trial. 8 Majority op. at ¶¶ 14-15.

• The rule of forfeiture is important to the administration of the judicial system. Majority op. at ¶ 14. United States Supreme Court Justice Antonin Scalia has noted that the rule of forfeiture reflects the principle that a trial is *518 "the main event," and not simply a "tryout on the road to appellate review." Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 895 (1991) (Scalia, J., concurring) (internal quotation marks omitted).

• This court may exercise its discretion to reach an issue that a party has forfeited. Majority op. at ¶¶ 27-28.

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

• A six-person jury trial in a criminal case is not a "trial by jury" as that phrase has been historically understood in Wisconsin. In State v. Hansford, 219 Wis. 2d 226, 241 , 580 N.W.2d 171 (1998), the court equated trial by jury to a jury of twelve persons. According to Hansford , "a criminal defendant's right to a trial by jury as guaranteed by art. I, § 7 of the Wisconsin Constitution, is the right to a jury of twelve persons." 9 This court declined in Hansford to adopt the U.S. Supreme Court's reasoning "that the twelve-person requirement for a jury trial is not 'an indispensable component of the *519 Sixth Amendment.' " 10 Rather this court declared in Hansford that a twelve-person jury is an indispensable component of the state constitutional guarantee of trial by jury. Thus the Hansford court unanimously declared that the legislatively mandated six-person jury was unconstitutional. When a defendant is not afforded the right to a jury of twelve people, as guaranteed by art. I, § 7 of the Wisconsin Constitution, the conviction must be reversed. 11

• To waive a trial by jury a defendant must personally state in open court on the record, or in writing, that he or she waives a jury trial. 12 "Neither counsel nor the court nor any other entity can act in any way or to any degree so as to waive on the defendant's behalf his right to trial by jury." 13 If a defendant personally fails to waive a jury trial, he or she does not forfeit the right to raise the issue on appeal.

• The same rules that apply to waiving a trial by jury apply to waiving a trial by a *520 jury of fewer than twelve people. 14 In other words, a defendant must personally state on the record his or her willingness to be tried by a jury of fewer than twelve people. 15 In this case the defendant did not agree personally on the record to be tried by fewer than twelve people. Thus he did not waive his right to a twelve-person jury and he could not forfeit the issue on appeal.

• The size of a jury can affect the fact-finding process. Accordingly I conclude that a defendant should not forfeit the opportunity to raise the issue on appeal. In declining to adopt Williams v. Florida, 399 U.S. 78 (1970), in the Hansford decision, the court implicitly rejected the position in Williams that a jury of twelve people is not significantly different than a jury with fewer people. There are good reasons for rejecting this position. See Brown v. Louisiana, 447 U.S. 323, 332 (1980) ("a decline in the jury size leads to less accurate factfinding and a greater risk of convicting an innocent person") (quoted by State v. Ledger, 175 Wis. 2d 116, 127 , 499 N.W.2d 198 (Ct. App. 1993)); Ballew v. Georgia, 435 U.S. 223, *521 234 (1978) ("[statistical studies suggest that the risk of convicting an innocent person. . .rises as the size of the jury diminishes"). Hansford and these other cases thus contradict the majority opinion's assertion that a six-person jury "does not affect the basic accuracy of the factfinding process at trial." Majority op. at ¶ 31 (internal citations omitted).

• Recent decisions, including State v. Wingo, 2000 WI 31 , 233 Wis. 2d 647 , 609 N.W.2d 162 , and State v. Cooley, 105 Wis. 2d 642 , 315 N.W.2d 369 (Ct. App. 1991), discussed above, support my dissent. The majority opinion fails in its attempt to distinguish State v. Cooley, 105 Wis. 2d 642 , from this case. The majority opinion posits that Cooley was based on the fact that an eleven-person jury was not authorized by any statute. Majority op. at ¶ 23. Nothing in Cooley suggests that the decision rests on the lack of statutory authorization for an eleven-person jury. 16 Rather, relying on decisions of this court, 17 the court of appeals con- *522 eluded that "the procedural safeguards for waiver of trial by jury apply equally to waiver of a full twelve-person jury." 18 This court has expressed approval of the Cooley decision. 19 The majority opinion attempts to explain away the Cooley decision by stating that when "the trial court itself has induced a defendant to give up his statutory and constitutional right to a twelve-member jury, the defendant's waiver must be made personally and expressly." Majority op. at ¶ 24. In the present case both the Wisconsin legislature (by enacting an unconstitutional law) and the circuit court (by drawing six-person juries in compliance with the unconstitutional law) induced the defendant to give up his statutory and constitutional right to a twelve-person jury.

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

¶ 85. For the reasons stated, I dissent.

*523 ¶ 86. I am authorized to state that Justices ANN WALSH BRADLEY and DIANE S. SYKES join this dissent.

1995 Wis. Act 427; Wis. Stat. § 756.096 (3)(am)(1995-96).

"An unconstitutional act of the Legislature is not a law; it confers no rights, it imposes no penalties, it affords no protection, and is not operative; and in legal contemplation it has no existence." State ex rel. Kleist v. Donald, 164 Wis. 545, 552-53 , 160 N.W. 1067 (1917) (quoted with approval in Hunter v. School Dist. of Gale-Ettrick-Trempealeau, 97 Wis. 2d 435, 444 , 293 N.W.2d 515 (1980)).

See also Berlowitz v. Roach, 252 Wis. 61, 64 , 30 N.W.2d 256 (1947) (quoting Kleist); State ex rel. Martin v. Zimmerman, 233 Wis. 16 , 288 N.W. 454, 457 (1939) ("with respect to an unconstitutional law. . .the matter stands as if the law had not been passed"); John F. Jelke Co. v. Hill, 208 Wis. 650, 661 , 242 N.W. 550 (1932) (an unconstitutional act is not a law); Bonnett v. Vallier, 136 Wis. 193, 200 , 116 N.W. 885 (1908) (an unconstitutional legislative enactment is no law at all). Compare Butzlaff v. Van Der Geest & Sons, Inc., 115 Wis. 2d 535, 538-540 , 340 N.W.2d 742 (Ct. App. 1983) (recognizing the Kleist rule but holding that private persons should not be held liable for acting *514 in good faith pursuant to statutes that are later declared unconstitutional).

See also Shirley v. Getty Oil Co., 367 So. 2d 1388, 1391 (Ala. 1979) ("[i]f the act is unconstitutional, it was void from the beginning"); Martinez v. Scanlan, 582 So. 2d 1167, 1174 (Fla. 1991) ("a penal statute declared unconstitutional is inoperative from the time of enactment"); People v. Manuel, 446 N.E.2d 240, 244-245 (Ill. 1983) ("[w]hen a statute is held unconstitutional in its entirety, it is void ab initio"); State ex rel. Stenberg v. Murphy, 527 N.W.2d 185, 192 (Neb. 1995) ("an unconstitutional statute is a nullity, void from its enactment"); Reyes v. State, 753 S.W.2d 382, 383 (Tex. Crim. App. 1988) ("unconstitutional statute is void from inception," discussing cases); Fairmont v. Pitrolo Pontiac-Cadillac Co., 308 S.E.2d 527, 534 (W.Va. 1983) ("when a statute or ordinance is declared unconstitutional, it is inoperative, as if it had never been passed," citing cases).

Cases have recognized a tension between the principle that unconstitutional statutes are void ab initio and the principle that challenges to prosecutions under laws later declared unconstitutional can be forfeited if a defendant failed to assert the challenge at trial. For discussions of this tension, see State v. Thomas, 128 Wis. 2d 93, 97-101 , 381 N.W.2d 567 (Ct. App. 1985); State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, 531-38 , 280 N.W.2d 316 (Ct. App. 1978).

Cases attempt to resolve this tension by recognizing that facial constitutional challenges to criminal convictions cannot be forfeited. See, e.g., In re F.R.W., 61 Wis. 2d 193, 200 , 212 N.W.2d 130 (1973) (facial challenge to statute's constitutionality was challenge to court's jurisdiction and not forfeited when not raised at trial) (quoting State ex rel. Comrs. of Public Lands v. Anderson, 56 Wis. 2d 666, 672 , 203 N.W.2d 84, 87 (1973)); State v. Benzel, 220 Wis. 2d 588, 592 , 583 N.W.2d 434 (Ct. App. 1998) (court cannot acquire jurisdiction to try a person for an act *515 made criminal only by an -unconstitutional law, even when defendant had not objected at trial on this ground); State v. McCoy, 139 Wis. 2d 291 , 295 n.1, 407 N.W.2d 319 (Ct. App. 1987) (a challenge to the constitutionality of a statute on grounds of vagueness relates to a court's subject matter jurisdiction and is not forfeited by failure to raise issue at trial); State v. Olson, 127 Wis. 2d 412, 418-420 , 380 N.W.2d 375 (Ct. App. 1985) (facial challenges to statute's constitutionality were jurisdictional and not forfeited when not raised at trial).

A constitutional challenge to the statute mandating six-person rather than twelve-person juries in misdemeanor cases can be viewed as a facial challenge to the statute and thus is not forfeited by failure to having objected at trial.

For a discussion of the reach of a judgment of unconstitutionality, see Laurence H. Tribe, American Constitutional Law § 3.3 (2d ed. 1988).

State v. Wingo, 2000 WI 31 , 233 Wis. 2d 647 , 609 N.W.2d 162 .

State v. Cooley, 105 Wis. 2d 642 , 315 N.W.2d 369 (Ct. App. 1981).

State v. Cooley, 105 Wis. 2d 642 , 315 N.W.2d 369 (Ct. App. 1981).

See State v. Livingston, 159 Wis. 2d 561, 569-570 , 464 N.W.2d 839 (1991) (defendant must personally and affirmatively waive his right to jury trial; mere failure to object does not forfeit the right); Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 , 895 n.2 (1991) (Scalia, J., concurring) (right to trial by jury cannot be forfeited by mere failure to object at trial; right to counsel cannot be forfeited by mere failure to object at trial).

As the majority opinion notes, majority op. at ¶ 11, n.2, this case presents a question of the "forfeiture rule" rather than the "waiver rule." I agree with the majority opinion that Wisconsin opinions tend to use the word "waiver" when the word "forfeiture" is more appropriate.

For the distinction between "waiver" (the intentional relinquishment or abandonment of a known right or privilege) and "forfeiture" (the failure to assert timely a right to preserve an issue for appellate review), see, e.g., Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 , 895 n.2 (1991) (Scalia, J., concurring); United States v. Olano, 507 U.S. 725, 731-733 (1993).

State v. Hansford, 219 Wis. 2d 226, 241-42 , 580 N.W.2d 171 (1998).

State v. Hansford, 219 Wis. 2d 226, 241-42 , 580 N.W.2d 171 (1998) (quoting Williams v. Florida, 399 U.S. 78, 100 (1970)).

State v. Hansford, 219 Wis. 2d 226, 243 , 580 N.W.2d 171 (1998).

Wisconsin Stat. § 972.02 (1997-98) provides:

(1) Except as otherwise provided in this chapter, criminal cases shall be tried by a jury selected as prescribed in s. 805.08, unless the defendant waives a jury in writing or by statement in open court'or under s. 967.08(2)(b), on the record, with the approval of the court and the consent of the state.

State v. Livingston, 159 Wis. 2d 561, 569 , 464 N.W.2d 839 (1991) (defendant must personally and affirmatively waive his right to a jury trial).

State v. Cooley, 105 Wis. 2d 642, 645-46 , 315 N.W.2d 369 (Ct. App. 1981).

State v. Cooley, 105 Wis. 2d 642, 645-46 , 315 N.W.2d 369 (Ct. App. 1981). See also State v. Ledger, 175 Wis. 2d 116, 127-28 , 499 N.W.2d 198 (Ct. App. 1993) (permitting a thirteen-person jury when the defendant personally agreed).

See State v. Ledger, 175 Wis. 2d 116, 127-28 , 499 N.W.2d 198 (Ct. App. 1993) (the number of jurors need not be established by statute to be constitutional; trial by thirteen jurors did not justify reversal of the conviction when the defendant personally agreed to that number of jurors).

State ex rel. Sauk County District Attorney v. Gollmar, 32 Wis. 2d 406, 409 , 145 N.W.2d 670 (1966); Krueger v. State, 84 Wis. 2d 272, 281 , 267 N.W.2d 602 , cert. denied, 439 U.S. 874 (1978); State v. Moore, 97 Wis. 2d 669, 671 , 294 N.W.2d 551 (Ct. App. 1980).

State v. Cooley, 105 Wis. 2d 645 -46.

See State v. Wingo, 2000 WI 31, ¶ 16 , 233 Wis. 2d 647 , 609 N.W.2d 162 (citing Cooley with approval); State v. Livingston, 159 Wis. 2d 561, 569 , 464 N.W.2d 839 (1991) (same).