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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(1), Stats.
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports.
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No. 96-0601-CR
STATE
OF WISCONSIN IN
COURT OF APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TERRY THOMAS
TREPANIER,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Marinette County: TIM A. DUKET, Judge. Judgment modified; order reversed and
cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Terry Thomas Trepanier appeals a portion
of his judgment of conviction requiring payment of $250 to the State's DNA
databank program and the order denying the subsequent motion for postconviction
relief. Trepanier contends that §
973.046, Stats., requiring this
payment, is unconstitutional as violating equal protection because convicted
burglars are the only persons required to pay the DNA surcharge without regard
to whether a DNA sample is given.
Because there is no rational basis for designating burglars as a class
to pay the surcharge regardless whether a sample is given, we hold that the
statute violates equal protection and the judgment is modified to remove the
$250 DNA surcharge.
Trepanier does not
contest the validity of his conviction.
His only issue on appeal is the constitutionality of § 973.046, Stats.
The pertinent parts of the statute are as follows:
(1) Beginning on August 12, 1993,
if a court imposes a sentence or places a person on probation under any of the
following circumstances, the court shall impose a deoxyribonucleic acid
analysis surcharge of $250:
(a) The person violated s. 940.225,
943.10 or 948.02(1) or (2).
(b)
The court required the person to provide a biological specimen under s.
973.047(1).
Section
973.046, Stats. This section demonstrates the legislature's
determination that having a DNA bank would be particularly useful in solving
certain crimes. The legislature
required those convicted of sex crimes to provide a DNA sample and gave the
courts discretion in requiring a sample from persons convicted of burglary,
among other crimes, such as homicide and kidnapping. Section 973.047(1)(a) and (b), Stats.
The statutes at issue
here were passed together to establish the funding and the creation of the DNA
bank. In fact, § 973.046, Stats., expressly refers to §
973.047(1). Statutes of such direct and
immediate linkage must be construed together.
State v. DILHR, 101 Wis.2d 396, 403, 304 N.W.2d 758, 762
(1981). These statutes, taken together, create a scheme where three groups are
always required to pay the DNA surcharge:
those convicted under § 940.225, Stats.
(sexual assault), § 948.02(1) or (2), Stats.
(sexual assault of a child), and § 943.10, Stats.
(burglary).
Only those convicted in
the first two groups, however, are required to submit DNA samples under the
statute. Section 973.046(1), Stats.
The other groups where, in the court's discretion, a sample could be
taken are only required to pay the surcharge if the court in fact requires a
DNA sample. Those convicted of burglary
alone are required to pay the DNA surcharge regardless whether a sample is
actually taken. As a result, some
convicted burglars are required to pay the surcharge when no DNA sample is
taken. Trepanier was convicted of
burglary but not ordered to provide a DNA sample; however, he was assessed the
DNA surcharge as required under the statute.
Trepanier contends that this scheme violates the equal protection
clauses under the state and federal constitutions.
The constitutionality of
this statute is a question of law this court reviews without deference to the
trial court. State v. McManus,
152 Wis.2d 113, 129, 447 N.W.2d 654, 660 (1989). Legislative enactments are presumed constitutional and will be
upheld if "there is any reasonable basis for the exercise of the
legislative power." Mack v.
State, 93 Wis.2d 287, 297, 286 N.W.2d 563, 568 (1980). "Every presumption must be indulged to
sustain the law if at all possible and, wherever doubt exists as to the
legislative enactment's constitutionality, it must be resolved in favor of
constitutionality." McManus,
152 Wis.2d at 129, 447 N.W.2d at 660 (quoting State ex rel. Hammermill
Paper Co. v. LaPlante, 58 Wis.2d 32, 46, 205 N.W.2d 784, 792
(1973)). The legislation must be held
constitutional if there are any facts upon which the legislation could
reasonably be based. State ex
rel. Strykowski v. Wilkie, 81 Wis.2d 491, 506, 261 N.W.2d 434, 441
(1978). "The party bringing the
challenge must show the statute to be unconstitutional beyond a reasonable
doubt." McManus, 152
Wis.2d at 129, 447 N.W.2d at 660 (citing Mulder v. Acme-Cleveland Corp.,
95 Wis.2d 173, 187, 290 N.W.2d 276, 283 (1980)).
"The equal
protection clause of the fourteenth amendment is designed to assure that those
who are similarly situated will be treated similarly." Treiber v. Knoll, 135 Wis.2d
58, 68, 398 N.W.2d 756, 760 (1987).
Where the State is not discriminating based upon a suspect
classification, the classification need only bear a rational relationship to a
legitimate government interest. McManus,
152 Wis.2d at 130-31, 447 N.W.2d at 660-61.
Simply because a statutory classification results in some inequity does
not provide a basis for holding it to be unconstitutional. Id. at 130-31, 447 N.W.2d at
660. The legislative enactment must be
upheld unless it is "patently arbitrary." Id. (citing Frontiero v. Richardson, 411
U.S. 677, 683 (1973)).
Trepanier asserts there
is no rational basis for convicted burglars to be the only class required to
pay the DNA surcharge when not required to provide a DNA specimen. The State advances two arguments in its
efforts to save the constitutionality of the statute. First, the State argues that it is erroneous to focus on the fact
that burglars are required to pay even when not providing a sample when others
only pay when giving a sample. The
State maintains that § 973.046(1)(a), Stats.,
is purely a funding provision in that it merely mandates who is required to
pay. In contrast, who is actually
required to provide a sample is set out in § 973.047, Stats. The State
reasons that such a focus would limit the class to those convicted of burglary
and that all those in the class are treated equally. We are not persuaded.
Statutes that reference each other and that were passed together must be
read as a whole. DILHR,
101 Wis.2d at 403, 304 N.W.2d at 762.
Separating these statutes and subsections would pervert the intent of
the legislature and distort the entire meaning of the statute itself.
The State further
contends that because burglars have high rates of recidivism, creating a higher
probability of solving crimes with DNA analysis, it is rational for convicted
burglars to pay the surcharge. The
State misunderstands the issue. The
recidivism rate of burglars may provide a rational basis to include burglars
among those who may be ordered to participate in the DNA bank. The issue, however, is not that there is no
rational basis for why burglars may be required to give a DNA sample. The issue is why convicted burglars, and
only convicted burglars, are required to pay the surcharge when not providing a
DNA sample.
Wisconsin has developed
a five-part guide when examining the reasonableness of a statute's
classifications. They are:
(1) All classification must be
based upon substantial distinctions which make one class really different from
another.
(2) The classification adopted must
be germane to the purpose of the law.
(3) The classification must not be
based upon existing circumstances only.
... It must not be so constituted as to preclude addition to the numbers
included within a class.
(4) To whatever class a law may
apply, it must apply equally to each member thereof.
(5)
That the characteristics of each class should be so far different from those of
other classes as to reasonably suggest at least the propriety, having regard to
the public good, of substantially different legislation.
Dane
County v. McManus, 55 Wis.2d 413, 423, 198 N.W.2d 667, 672-73
(1972). The classification here is not
based upon a substantial distinction that makes burglars different from any of
the other classes. Accepting that
burglars have high recidivism rates, this fact is not rationally related to the
requirement that they must pay the DNA surcharge when not providing a
sample. Burglars are not so
substantially different from all other groups encompassed under the statute as
to justify the rule that all burglars pay the surcharge regardless of their
participation in submitting a biological sample to the DNA bank.
The adopted
classification is not germane to the purpose of the law. The law's purpose was to set up a DNA bank
and require those who necessitated its existence to pay for it. This purpose is not advanced by requiring
burglars who do not provide a sample to pay the surcharge when other convicted
felons are not subject to the fee under the same circumstances. The State certainly has an interest in
funding the program, but this is not a sufficient basis to arbitrarily select
convicted burglars to always pay from the larger group who is required to
submit a sample in the court's discretion.
Factor three does not seem to be applicable in this case.
This law does not apply
equally to the members of each class.
Burglars are a subset of the group of felons for which testing is within
the court's discretion. Burglars, however,
are the only ones in this group required to pay the surcharge even when not
giving a sample.
The characteristics of
burglars are not so different to suggest the propriety of different legislation
for them in this context. There are
certainly rational reasons for § 973.046(1)(a), Stats., to require sexual assault offenders to submit
samples, while another group is required to submit samples if the trial court,
in its discretion, so orders. The
discretionary group is subdivided between burglars and all others, with only
burglars being required to pay. In this
context, burglars cannot be said to be so different from the other
discretionary groups, such as criminal trespass to a dwelling or criminal
trespass to a medical facility, to make their special treatment rational.
All other payors of the
surcharge are required to provide a sample whether by statute or the court's
discretion. There is no other group
required to pay the surcharge but not required to provide a DNA sample. There is no rational reason why convicted
burglars are the only class of convicted criminals required to fund the DNA
bank without submitting a sample.
The State argues that
this surcharge should be given an even greater presumption of constitutionality
because it is a tax. Tax laws are
indeed given great constitutional presumption, especially in the area of equal
protection. Simanco, Inc. v. DOR,
57 Wis.2d 47, 54-55, 203 N.W.2d 648, 651-52 (1973). Tax laws are, however, analyzed under the same requirements of
equal protection as set out above. Specifically, they must have a rational
relationship to a legitimate government purpose. GTE Sprint v. Wisconsin Bell, Inc., 155 Wis.2d 184,
193-95, 454 N.W.2d 797, 800-01 (1990).
Having concluded that there is no rational relationship between the
burden imposed only on convicted burglars and the purpose of the statute, the
stronger constitutional presumption for tax laws argument is unavailing for the
State.
Because we conclude
there is no rational basis to require only burglars to pay the DNA surcharge
when not providing a DNA sample, that part of § 973.046(1)(a), Stats., requiring payment from
convicted burglars is unconstitutional.
Declaring one part of a statute unconstitutional does not void the
entire statute. See State
v. Asfoor, 75 Wis.2d 411, 440-41, 249 N.W.2d 529, 542 (1977). In this case, the mandatory payment required
from convicted burglars is the only part voided. Thus, any individual, including convicted burglars, required to
submit a specimen, will still be validly assessed the surcharge under §
973.046(1)(a) or (b). Considerations of
equal protection and due process require that § 973.046(1)(a) be read so
as to exclude "943.10" from the text of the statute.
By the Court.—Judgment
modified; order reversed and cause remanded.
