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Dane County v. McGrew7/19/2005
REVIEW of a decision of the Court of Appeals. Affirmed.
This is a review of an unpublished decision of the court of appeals, Dane County v. McGrew, No. 2003AP1794, unpublished slip op. (WiS.Ct. App. Mar. 25, 2004), affirming a judgment and order of the circuit court for Dane County, C. William Foust, Judge. We granted review to determine whether Wis. Stat. § 345.43 (2001-02), which mandates six-person juries in civil forfeiture trials, is unconstitutional in Dane County's prosecution of Kenneth McGrew (McGrew) for speeding pursuant to Dane County Ordinance § 69.01 and Wis. Stat. § 346.57(4)(h).
McGrew argues that under Article I, § 5 of the Wisconsin Constitution, which provides that the right of trial by jury "shall remain inviolate," he is entitled to a jury of 12, and therefore Wis. Stat. § 345.43 is unconstitutional.
Applying the test we set forth in Village Food & Liquor Mart v. H&S Petroleum, Inc., 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177, we conclude that the cause of action created by Wis. Stat. § 346.57(4)(h) did not exist at common law at the time of the adoption of the Wisconsin Constitution in 1848. We therefore conclude that McGrew has no constitutional right to a jury trial.
I. BACKGROUND
On May 2, 2002, Dane County Deputy Sheriff Eric Novotny stopped McGrew for speeding. Novotny later testified that he "paced" McGrew's vehicle at a speed of approximately 80 miles per hour (MPH) in a 55 MPH zone. Novotny issued McGrew a citation in the amount of $175.80 with an assessment of six demerit "points" to McGrew's driver's license. The citation accused McGrew of exceeding the applicable speed limit by 24 MPH, in violation of Dane County ordinance 69.01, which adopts all the state traffic laws. The particular statute at issue is Wis. Stat. § 346.57(4)(h). McGrew decided to contest the citation in Dane County Circuit Court. McGrew fought the citation tooth and nail, fully exercising his rights. He filed an extensive discovery request, asking for 25 items including Deputy Novotny's training records, various information about Novotny's vehicle, and the traffic engineering study establishing the speed limit on the stretch of highway on which Novotny stopped him. He also filed several pretrial motions, and demanded a trial by jury under Wis. Stat. § 345.43
The Defendant hereby motions the court for a jury of 12, as opposed to six persons. Though the appeals court, in an unpublished opinion, has ruled against the right to a jury of 12 persons in forfeiture cases, this issue has not been settled by the Supreme Court. The Defendant raises this motion for the sake of preserving the record should it be necessary to appeal to the Supreme Court.
McGrew submitted $36 with his request, an amount sufficient to cover a six-person jury.
On June 18, 2002, the County moved the court for permission to amend the citation to reflect a charge of exceeding the speed limit by 25 MPH instead of 24 MPH. The court allowed this amendment over the defendant's objection. According to McGrew, the amendment "dramatically raised the stakes for fighting the ticket," because it subjected McGrew to a potential 15-day suspension of his operating license. See Wis. Stat. § 343.30(1n) ("A court shall suspend the operating privilege of a person for a period of 15 days upon the person's conviction by the court of exceeding the applicable speed limit . . . by 25 or more miles per hour.").
On September 27, 2002, the court held a motion hearing to consider McGrew's request. The following exchange occurred regarding McGrew's request for a 12-person jury:
THE COURT: . . . ou want a jury of 12 rath
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