State v. Cissell

SHIRLEY S. ABRAHAMSON, J.

(dissenting). Although broad prosecutorial discretion is an accepted part of our criminal justice system, 1 1 conclude that the legislature's adoption of criminal statutes identical except for penalty is an unlawful delegation of power to the executive branch of government contrary to the separation of powers doctrine encompassed in the Wisconsin Constitution. Furthermore, resting such unbridled discretion in the prosecuting attorney violates our concept of fundamental fairness and equal protection of the laws. Art. I, secs. 1, 8(1), Wis. Const.; Amend. XIV, U.S. Const.

The majority opinion permits the legislature to adopt two or more criminal statutes identical in every respect except for the penalty provision without establishing criteria to guide the prosecutor in deciding under which statute an accused should be prosecuted. Thus the legislature could, for example, adopt the following three statutes making burglary a crime.

"Sec. 943.10. Burglary. Whoever intentionally enters a dwelling without the consent of the person in lawful *228 possession and with the intent to steal shall be fined no more than $1,000 or imprisoned not more than 3 months in the county jail or both.

"Sec. 943.101. Burglary. Whoever intentionally enters a dwelling without the consent of the person in lawful possession and with the intent to steal shall be fined no more than $3,000 or imprisoned not more than 2 years or both.

"Sec. 943.102. Burglary. Whoever intentionally enters a dwelling without the consent of the person in lawful possession and with the intent to steal shall be fined no more than $10,000 or imprisoned not more than 10 years or both."

These statutes define the same conduct, under the identical circumstances, as a felony when committed by one person and as a misdemeanor when committed by another. The legislature gives the prosecutor no guidance in selecting the statute under which to prosecute.

It is axiomatic that the state prosecutes people for crimes under statutes enacted by the legislature. "The legislature determines what constitutes a crime in Wisconsin and establishes maximum penalties for each class of crime." In re Felony Sentencing Guidelines, 120 Wis. 2d 198, 203 , 353 N.W. 2d 793 (1984).

By establishing more than one maximum penalty for the identical crime the legislature has effectively failed to fix a penalty for the crime of burglary. The legislature has abdicated its responsibility to set a penalty by allowing the prosecutor to determine the maximum penalty for the crime through selecting the statute under which to charge.

The majority, relying on United States v. Batchelder, 442 U.S. 114 (1979), asserts that this grant of power to prosecutors is constitutionally acceptable. Batchelder involved overlapping statues which set different punishments for the same behavior. The majority concludes that *229 the reasoning in that case is equally applicable to this case involving identical statutes. P. 215. 2

1 conclude there is a distinction between identical and overlapping statutes that renders Batchelder unpersuasive. In enacting overlapping statutes the legislature defines two or more different crimes and establishes a range of punishments for each. The legislature performs its constitutional task: it sets different penalties for legally distinguishable offenses, even though in some circumstances the same conduct may be punishable under each statute. As a practical matter, the legislature may not be able to define crimes without including conduct that may also be proscribed by another statute. Thus, empowering a prosecutor to choose among overlapping statutes may be necessary and unavoidable. 3

By contrast, in enacting multiple criminal statutes identical except for the penalty, the legislature defines one crime, establishes several different ranges of punishments for that crime, and, without setting forth guidance, empowers the prosecutor to determine which of the ranges should be imposed in a particular case. The power to fix a range of punishments for a defined crime is the essence of the legislative function. In enacting identical criminal statues except for the penalty, the legislature has delegated its power to the executive branch without establishing standards for the exercise of the power. This *230 is indeed "delegation running riot." Schechter Poultry Corp. v. United States, 295 U.S. 495, 553 (1935) (Cardozo, J. concurring).

Drawing the line between valid and invalid delegations of power is not easy. While the delegation involved in overlapping statutes may be defensible, I conclude that the delegation involved in identical statutes is not. This court should draw the line of constitutionality between the two.

The majority upholds the two identical statutes, concluding that the discretion delegated to prosecutors by identical statutes is not significantly different from the discretion delegated to prosecutors by overlapping statutes. In both instances, according to the majority, the prosecutor has discretion to determine whether a person will be charged and, if so, under what statute; in both instances, according to the majority, the prosecutor fixes the maximum penalty for the proscribed conduct by the charge.

The majority relies on the prosecutor's already existing broad discretion to measure the constitutionality of the legislature's adoption of multiple criminal statutes identical except for penalty. The standard for determining what constitutes acceptable delegation must be something other than the farthest extension of delegated power. The appropriateness of delegated power should be measured by looking anew at the underlying constitutional doctrine. Thus the standard must be whether the legislature has abdicated its responsibility to legislate in a particular circumstance, not whether the delegation of power is similar to another delegation. The path of improvident jurisprudence is incremental.

The delegation of legislative power must be accompanied by standards reasonably adequate under the circumstances. Although legislative delegation to prosecutors through overlapping statutes may be a practical necessity, the legislature neither needs nor ought to pass multiple criminal statutes identical except as to penalty.

*231 The legislature can, of course, adopt a single statute setting forth the same range of punishments for burglary as the three burglary statutes I described above. Empowering the prosecutor to prosecute under one burglary statute which has a range of punishments is different from empowering the prosecutor to choose among three criminal statutes identical except for penalty. In the former situation, the prosecutor does not establish the penalty; the circuit court imposes a sentence within the legislatively established range according to criteria established by the legislature and this court. The circuit court must set forth its reasons for imposing the sentence, and the judgment is subject to appellate review. Thus the circuit court's discretion in selecting punishment from a statutory range of penalties established by the legislature is regulated and guided. In the latter situation the circuit court imposes a sentence within the range established by the prosecutor who functions without regulation or guidance by the legislature or the court.

In affirming the defendant’s conviction under the felony statute, the majority also disregards the fundamental concept underlying due process and equal protection: fairness requires that people should not arbitrarily be treated differently. The majority discusses equal protection as though the constitutional command protects only against discriminatory prosecution based upon race, gender, or other suspect classification. The equal protection guarantee is broader than the majority acknowledges. Equal protection shields persons not only from "suspect classifications" but from classifications that are not rational. The legislature has not set forth any rational basis to guide the prosecutor in distinguishing between the felony and misdemeanor statutes in this case. I conclude that criminal statutes identical except for penalty violate due process and equal protection.

As the defendant correctly points out, this court has said that identical criminal statutes with different penal *232 ties are unconstitutional under the constitutional requirements of due process, equal protection, and delegation of legislative powers. In State v. Roggensack, 15 Wis. 2d 625, 633 , 113 N.W. 2d 389 , 114 N.W. 2d 459 (1962), the court said that if two statutes make the same conduct criminal,

". . .. their coexistence would violate constitutional requirements of due process of law and of equal protection of the laws because of vagueness and uncertainty and the delegation to an administrative agency the choice of either section without any legal standards to govern the choice. ..."

Even though we established in Roggensack that criminal statutes identical except for penalty would be unconstitutional, the majority chooses to follow Batchelder rather than Roggensack. The majority correctly acknowledges that it is not bound by the Batchelder decision. P. 223. That decision involved a federal prosecution, the powers of Congress, and the Federal Constitution, whereas this case involves a state prosecution, the powers of the state legislature, and the Wisconsin Constitution. I do not find the Batchelder reasoning regarding due process, equal protection, or unlawful delegation of legislative power persuasive in the case before us. Roggensack is good law. 4 The Roggensack rule requires the legislature *233 to perform its legislative function to define a crime and establish penalties. Roggensack protects our citizens from arbitrary prosecutorial discretion. I see no reason why this court should not follow this state's established precedent.

For the reasons set forth, I would affirm the decision of the court of appeals dismissing the felony charge. 5

I am authorized to state that CHIEF JUSTICE NATHAN S. HEFFERNAN and JUSTICE WILLIAM BABLITCH join in this dissent.

See State v. Karpinski, 92 Wis. 2d 599, 607-609 , 285 N.W. 2d 729 (1979). For a discussion of prosecutorial discretion, see e.g., Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521 (1981); Comment, Duplicative Statutes, Prosecutorial Discretion, and the Illinois Armed Violence Statute, 71 J. Cr. L. & Crimin. 226 (1980).

The language in Batchelder may be interpreted to cover identical as well as overlapping statutes.

The legislature has recognized this fact and sec. 939.65, Stats. 1983-84, provides that "If an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions." See Wisconsin Legislative Council, 1953 Report, vol. 5, sec. 339.65.

Several commentators suggest that overlapping statutes are the result of sloppy legislative drafting. Furthermore courts and commentators have suggested that prosecutors should adopt guidelines for the exercise of their discretion. See references in note 1 supra.

The majority attempts to get around Roggensack by characterizing the language as dicta. P. 220. This characterization conflicts with this court's definition of dictum. In State v. Kruse, 101 Wis. 2d 387, 392 , 305 N.W.2d 85 (1981), the court said: "... 'when a court of last resort intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision.'"

The two statutes considered in Roggensack, although virtually identical in language, were, contrary to the majority's assertion at p. 220, essentially dissimilar: one was a civil statute and the other criminal. *233 15 Wis. 2d at 632 . The court held that the civil and criminal statutes could coexist but that two identical criminal statutes could not.

The majority does some revisionist reading of Karpinski , which also involved the coexistence of a criminal statute and a civil statute. The legislature set a criterion for distinguishing between the two — the standard of proof. The fact situation and issue presented in Karpinski , as well as the decision itself, are very limited. In Karpinski the prosecutor's discretion was limited to deciding whether to prosecute under the criminal statute; the prosecutor in that case did not have the power to initiate a civil prosecution and thus had no discretion to choose between a criminal and civil prosecution. Persuaded by the reasoning of Batchelder , the court said that the prosecutorial discretion at issue in Karpinski was not appreciably different from the prosecutorial discretion that exists in ordinary criminal cases where there is no analogous civil statute. The Karpinski court therefore upheld the validity of the criminal complaint in that case. The court expressly refrained from deciding "whether it is an unconstitutional exercise of prosecutorial discretion for a single prosecutor to determine whether to prosecute a civil or criminal action for the same conduct in the absence of guidelines established by the prosecutor for the exercise of such discretion." Kar-pinski, supra 92 Wis. 2d at 612, n. 17 . Karpinski did not, as the majority asserts, "clearly . . . [anticipate] our decision in this case." P. 220.

Where there is doubt as to which of two punishments is applicable to an offense, the accused is entitled to the benefit of the lesser. See State v. Bohacheff, 114 Wis. 2d 402, 417 , 338 N.W. 2d 466 (1983).