State v. Roggensack

¶1The following opinion was filed April 3, 1962:

¶2(on motion for rehearing). We are not persuaded by defendant’s arguments, on this motion, challenging our answers to the questions certified. We deem it appropriate, however, to make this comment in view of defendant’s suggestion that a defendant may properly “complain that the process by which he. was selected [for prosecution] violated the constitutional guaranty of equal protection of the laws.” Whether or not such a complaint is *635supported by the record in this case was not put before us by the questions of law certified. Those questions were, in substance, whether sec. 71.11 (41), Stats., is to be construed as authorizing a civil action independent of a criminal action under sec. 71.11 (42) and whether the existence of sec. 71.11 (41) renders sec. 71.11 (42) unconstitutional as a violation of due process of law or a denial of equal protection of the laws. A question of fact cannot be certified to this court.1

¶3Sub. (3) of sec. 958.08, Stats., under which the questions were certified, provides in part: “After the case is remanded by the supreme court, the trial court shall render such judgment or make such order thereon as law and justice require. The proceedings here prescribed shall not deprive the defendant of a writ of error.” Although our answers to the questions certified will constitute the law of the case,2 if, after judgment, defendant claims that his conviction and the judgment thereon are erroneous for reasons not covered by these answers, he will have his remedy by writ of error, or appeal.3

¶4Motion for rehearing denied.