State ex rel. Smith v. City of Oak Creek

WEDEMEYER, J.

(dissenting). I respectfully dissent. The majority holds that an individual can be a *458 habitual law offender under sec. 125.04(5)(b), Stats., without being convicted of any offense. Thus, testimony from a collateral proceeding may be utilized by a local governmental body as a type of surrogate conviction for the purpose of denying an alcoholic beverage license. I believe such action is antithetical to due process and fundamental fairness and cannot be condoned.

The title to sec. 125.04(5)(b), Stats., reads "Criminal offenders." Although it is true that the title of a subsection is not part of the statute, sec. 990.001(6), Stats., it can be indicative of legislative intent. State v. Lemieux, 110 Wis. 2d 158, 166, 327 N.W.2d 669, 673 (1983). It seems clear that the legislature wished to prevent criminals from obtaining or retaining alcoholic beverage licenses. Smith was not even charged with, much less convicted of, any crime. Instead he is labeled a criminal offender without benefit of trial. The majority, like the trial court, find that the "moral turpitude" associated with Smith's conduct is sufficient to ratify the council's action. The legislature specifically removed consideration of a licensee's "good moral character" from sec. 125.04(5), Stats., by enacting ch. 391, Laws of 1981. Whether this standard was wise or not, it was eliminated by the legislature and it is not this court's function to reinstate it.

Because I believe that a habitual law offender under sec. 125.04(5)(b), Stats., must have received due process, i.e., been charged, tried and convicted of some offense(s), I dissent.