Equal Protection – Rational Basis Test – Punishment Classification Scheme

State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe

Issue: Whether a higher level of scrutiny applies to an equal protection challenge to a prison early release program which categorically withholds eligibility from certain types of crimes.

Holding:

¶13      The State, on the other hand, argues that we should employ the lower level of scrutiny, or the “rational basis” standard. Under this standard, we uphold a statute against an equal protection challenge “if a plausible policy reason exists for the classification and the classification is not arbitrary in relation to the legislative goal.” Id., ¶73 (citations omitted). A statute is unconstitutional if it “is shown to be ‘patently arbitrary’ with ‘no rational relationship to a legitimate government interest.’” ^[4] Id.

¶14      We agree with the State that the rational basis standard is the appropriate one. The supreme court and this court have consistently applied the rational basis standard when deciding equal protection challenges to statutes involving differences in criminal penalties. See State v. Jorgensen, 2003 WI 105, ¶¶28-41, 264 Wis. 2d 157, 667 N.W.2d 318 (statute allowing each judicial district to establish sentencing guidelines for drunk driving); State v. Smart, 2002 WI App 240, ¶¶5-12, 257 Wis. 2d 713, 652 N.W.2d 429 (statute allowing each judicial district to establish sentencing guidelines for drunk driving); State v. Gardner, 230 Wis. 2d 32, 47, 601 N.W.2d 670 (Ct. App. 1999) (penalty structure for armed burglary versus unarmed burglary); State v. Block, 222 Wis. 2d 586, 590-95, 587 N.W.2d 914 (Ct. App. 1998) (classification of some crimes as “serious” for purposes of persistent repeater penalty).

…

¶17      In analyzing whether a statutory classification meets the rational basis standard, we “‘are obligated to locate, or, in the alternative, construct a rationale that might have influenced the legislative determination.’” Ferdon, 284 Wis. 2d 573, ¶74 (citations omitted). The point of our “inquiry [is to] determine whether the legislation has more than a speculative tendency as the means for furthering a valid legislative purpose.” Id., ¶78. This standard “does not require the legislature to choose the best or wisest means to achieve its goals. Deference to the means chosen is due even if the court believes the same goal could be achieved in a more effective manner.” Id. at ¶76 (citations omitted). ^[5]

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 ^[5] In his argument, Lynch uses the five-part formulation of the rational basis test fromAicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, ¶58, 237 Wis. 2d 99, 613 N.W.2d 849: (1) the classification must be based on substantial distinctions; (2) it must be germane to the purposes of the law; (3) it cannot be based only on existing circumstances (that is, it must not preclude addition to the numbers in the class); (4) it must apply equally to all members of the class; and (5) the characteristics of the class must be substantially different from other classes such as to suggest the propriety of substantially different legislation. However, as the State points out, Lynch does not discuss each of the five criteria in a clear and separate argument. In any event, in Ferdon, 284 Wis. 2d 573, ¶71 n.77, the court referred to the five-part test in a footnote as one of a number of different formulations of the rational basis test but did not employ it. BecauseFerdon is the most recent supreme court opinion discussing the standard to be employed when using the rational basis test, we use Ferdon’s formulation of that standard, not Aicher’s. However, even if we employed the five-part test, our conclusion would be the same and our analysis would be essentially the same.

The court doesn’t explain the significance of Ferndon being “the most recent supreme court opinion” on the point at hand, but it presumably embodies this principle: “It is a long-standing rule that where supreme court decisions appear to be inconsistent, or in conflict, we follow the court’s most recent pronouncement.” Kramer v. Board of Educ., 2001 WI App 244, ¶20, 248 Wis.2d 333, 344, 635 N.W.2d 857, citing Krawczyk v. Bank of Sun Prairie, 203 Wis.2d 556, 567, 553 N.W.2d 299 (Ct. App. 1996), which in turn says, “When the pertinent supreme court precedents appear to lead to different results, we follow that court’s last pronouncement.” So, there first must be some conflict in the pronouncements and Lynch doesn’t explicitly find one before casually deciding that Aichercontrols over Ferndon. Perhaps the court meant to imply the existence of a conflict; perhaps the conflict was thought too obvious to bear elaboration. But it still ought to be said outright that mere chronology isn’t enough to deem one pronouncement controlling over another. Mention is made because this isn’t the first time the court of appeals has articulated the “rule” too broadly; see, e.g.,State v. Walter Leutenegger, 2004 WI App 127, ¶5: “More recently, the supreme court employed an objective test in State v. Richter, 2000 WI 58, ¶30, 235 Wis. 2d 524, 612 N.W.2d 29, and we conclude we must follow this more recent decision. See Jones v. Dane County, 195 Wis. 2d 892, 918n.8, 537 N.W.2d 74 (Ct. App. 1995) (‘[The court of appeals is] bound by the most recent pronouncements of the Wisconsin Supreme Court.’).” No coincidence, perhaps, that Leutenegger involved a virtually identical panel. You can see, then, how the court has loosened the “rule” so that it threatens to stray from its mooring. That said, it might be wondered why the properly-articulated rule ought to be followed in any event. Without making too fine a point of it, Jones cites State v. Olsen, 99 Wis.2d 572, 583, 299 N.W.2d 632 (Ct. App. 1980) in support of the rule, but that case says no such thing. Rather, Olsen merely recognizes the irrefutable idea that “the court of appeals is bound by prior decisions of the Wisconsin Supreme Court,” citing Livesey v. Copps Corp., 90 Wis.2d 577, 581, 280 N.W.2d 339 (Ct. App. 1979), which itself says no more than that. Support, then, must be found elsewhere. The earliest iteration seems to be this, from Bruns VW, Inc. v. DILHR, 110 Wis.2d 319, 324, 328 N.W.2d 886 (Ct. App. 1982): “If the decisions of the supreme court are inconsistent, we should follow that court’s practice of relying on its most recent pronouncement,” citing Purtell v. Tehan, 29 Wis.2d 631, 636, 139 N.W.2d 655 (1966). And that last case, interestingly, simply indicates: “Ordinarily, where there is a conflict in our past decisions, we prefer to adhere to the more recent cases.” Hardly a “rule,” then, is it? Ordinarily the court has a preference for the more recent pronouncement? Sounds more like a standard, which allows for exercise of discretion, than a rule, which allows for none. Just something to keep in mind if you find dueling pronouncements crossing swords over your desk.