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State v. Boyd8/23/2000
onal time to provide an affidavit.
. The next hearing was held on June 2, 1999. At that time, the State argued that Boyd had waived his opportunity to contest the authenticity of the service of the summons and complaint because he had not previously raised it. Boyd countered that he questioned the sufficiency of the service of process as an affirmative defense in his answer. He further contended that the affidavit submitted by the State was improper because it was based on hearsay information. Boyd's counsel argued:
Up until today, we had no affidavit of service, of course, as the Court is well aware. Today we're given an affidavit which is not proper, because it is not based on the personal knowledge of the affiant, so your Honor, I believe that this affidavit is not-is not appropriate and not sufficient.
The court announced its decision on the summary judgment motions shortly thereafter. On the issue of the sufficiency of service, the court found that the State's affidavit adequately proved that the service complied with the appropriate statutes. It also found that DeCecco was not a party to the action within the meaning of the statutes governing service. Regarding the claim that the forfeiture was an excessive fine, the court determined that this issue was not appropriate for summary judgment and set a fact-finding hearing for the matter.
. The hearing on the excessive fine issue was held on September 1, 1999. After hearing the evidence, the court ruled that Boyd's truck, valued at $28,000, should be sold and the first $10,000 from the proceeds should go to the Elkhart Lake police department. The court noted that in reaching this conclusion it had considered and weighed the following factors: the public's interest in stopping weapons from being transported and used in crimes; the fact that there were no injuries and only nominal damage resulting from Boyd's act; its observation that the State usually did not pursue forfeiture in cases that were not drug-related or fourth-offense drunk driving crimes; the truck was registered as a farm vehicle and not used for primarily personal use; there was no lien on the truck, which effectively increased the penalty on Boyd; and the $28,000 forfeiture would be a disproportionate penalty for an offense carrying a maximum fine of $10,000. The State appeals the reduction in the forfeiture amount. Boyd cross-appeals, contesting the court's decision that the proof of service was sufficient.
Discussion
Appeal
. We begin our discussion by addressing whether the forfeiture of Boyd's $28,000 truck violates the Excessive Fines Clause of the Eighth Amendment. This is a constitutional issue which we review de novo. See State v. Hammad, 212 Wis. 2d 343, 347-48, 569 N.W.2d 68 (Ct. App. 1997). If the goal of a civil forfeiture action is, at least in part, punishment, the forfeiture may not be constitutionally excessive. See Austin v. United States, 509 U.S. 602, 610 (1993). We have previously determined that forfeitures under Wis. Stat. § 973.075(1)(b) fall within the purview of the Excessive Fines Clause and are subject to its limitations. See Hammad, 212 Wis. 2d at 352.
. Presently, the leading Wisconsin authority on determining whether a civil forfeiture violates the Excessive Fines Clause is Hammad. Attempting to clarify which of the "bumper crop of tests" should be used in this state, the Hammad court instructed that the multi-factor test in State v. Seraphine, 266 Wis. 118, 62 N.W.2d 403 (1954), was the correct analysis to apply. See Hammad, 212 Wis. 2d at 355-56. The Seraphine standard was explained as:
In determining whether a fine authorized by statute is exce
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