99-2580 State v. Kramer

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Where the prosecutions for video gambling were limited to Fond du Lac tavern owners, we conclude that defendant has established a discriminatory purpose on the part of the State because the prosecutions were based on an arbitrary consideration: geographic location. Further, the State conceded that the county’s failure to distribute a warning letter to these tavern owners showed a discriminatory intent.

In addition, we conclude that defendant established discriminatory effect because the prosecutor applied the new prosecution policy only against defendant, not to other similarly situated taverns outside of North Fond du Lac.

“Finally, the letter is important in our analysis. The sending of the letter suggests that many tavern owners throughout the county were similarly situated to Kramer, that is, that they were equally suspected of having video poker machines. The letter warned that all tavern owners who had such machines would be subject to the same enforcement policy. Although the record is unclear as to which taverns received the letter, the record is clear that the letter was never sent to North Fond du Lac tavern owners. Several tavern owners in North Fond du Lac were then targeted for prosecution by the county for alleged violations. Tavern owners outside of North Fond du Lac were not prosecuted. This record presents no distinguishable legitimate prosecutorial factors that justify making these prosecutorial distinctions with respect to the North Fond du Lac tavern owners.”

However, we disagree with the court of appeals’ determination that the State failed to rebut this showing with evidence of proper prosecutorial discretion. The State must be afforded an opportunity to present evidence on this issue.

Reversed and remanded.

Court of Appeals; Bablitch, J.

For Appellant: Stephen D. Willett, Phillips

For Respondent: Thomas J. Balistreri, James E. Doyle, Madison