Equitable Estoppel: Can’t Bar Prosecution, as Matter of Law

State v. James M. Drown, 2011 WI App 53; for Drown: Shelley Fite, SPD, Madison Appellate; case activity

As a matter of law, equitable estoppel doesn’t bar prosecution of a crime. After pleading guilty to Shawano County charges related to an abduction and assault, Drown was charged in Oconto based on the same incident. The trial court granted a defense motion to dismiss on the ground of equitable estoppel, the State appealed, and the court now reverses.

¶7 There are four elements to equitable estoppel: (1) action or nonaction, (2) on the part of one against whom estoppel is asserted, (3) which induces reasonable reliance thereon by the other, (4) which is to the relying party’s detriment. Id.,¶33. In Wisconsin, a party may raise an estoppel defense against the government “even when it acts in its governmental capacity.” DOR v. Moebius Printing Co., 89 Wis. 2d 610, 634, 279 N.W.2d 213 (1979). However, equitable estoppel is not granted as freely against the government as against private parties. Id. at 638. “[E]stoppel may be available as a defense … if the government’s conduct would work a serious injustice and if the public’s interest would not be unduly harmed by the imposition of estoppel.” Id. Therefore, beyond the ordinary four-part test, when raising an estoppel defense against the government, “the court must balance the injustice that might be caused if the estoppel doctrine is not applied against the public interests at stake if the doctrine is applied.” Id.at 639.

¶8 However, we will “not allow[] estoppel to be invoked against the government when the application of the doctrine interferes with the police power for the protection of the public health, safety or general welfare.” Id. This rule perhaps explains why Drown is unable to cite a single Wisconsin case where the State has been estopped from prosecuting a criminal charge or, for that matter, where the State has been equitably estopped in any capacity in a criminal case.[3]

¶10 We agree with the State that the public interest would be unduly harmed if the State were equitably estopped from prosecuting criminal charges. …

Various protections – statute of limitations, due process – are available, the court suggests, as a brake on State overreaching. The court observes in particular that “substantive due process also protects defendants from detrimental reliance on the State’s affirmative action,” ¶13, citing State v. Rivest, 106 Wis. 2d 406, 413, 316 N.W.2d 395 (1982).Thus: “Had the Oconto County prosecutor entered into a plea agreement with Drown prohibiting his prosecution for sexual assault in that county, Drown would likely have had an enforceable bargain,” ¶13. The court is also impressed that “Drown’s decision to proceed with a plea to the Shawano County charges alone, rather than address the possible sexual assault charges, was strategic—by his own admission. That Drown knowingly gambled and then lost would not somehow constitute a valid reason to shield him from prosecution for the alleged sexual assault,” ¶15.