*1 of Wisconsin — of Corrections, State
Petitioner-Respondent, †
v. Divisiоn of Schwarz, Administrator, H. David Respondents, Hearings Appeals, Respondent-Appellant. James Dowell, Appeals Court of 1, April 2004. Decided No. 03-2001. Submitted on briefs June 2004 WI App 585.) (Also in 685 N.W.2d reported granted 9-1-04. Petition to review † *4 respondent-appellant, cause On behalf Gould, Michael K. on the briefs of submitted was public state defendеr. assistant petitioner-respondent, cause On behalf of Pultz, Robert G. Wiscon- on the brief of was submitted Department of sin Corrections. Curley, Wedemeyer, and JJ. EJ.,
Before Schudson appeals the trial CURLEY,J. Dowell James David decision of order that overturned the court's Hearings Division the Administrator of the of Schwarz, Appeals. Law аffirmed the Administrative and Schwarz (ALJ) parole. Judge's not revoke Dowell's decision ALJ, like that the Schwarz, concluded (DOC) proof provide Dowell failed to that Corrections of it at- when his recent rules violated tempted most that on DNA results to revoke his based during an earlier him to a crime occurred linked period parоle. Because (2001-02),1 jurisdiction governing in the DOC's clearly unambiguous DOC's limits the matters, is only for violations seek supervision, re-we current occur of the Administrator verse and reinstate decision Hearings Appeals. Division of Background. I. 1994, on March was convicted Dowell robbery operating and one count of counts of armed two Mаy 9,1994, On consent. without the owner's a vehicle prison. ninety a total months sentenced to he was to the Statutes are references Wisconsin All noted. version unless otherwise 2001-02 *5 paroled He in 1997, was but his was subse- quently prison revoked and he was sent on back Upon reaching mandatory March 23, his release July again paroled. 17, dаte 2001, was Dowell May parole, ¶ 3. In Dowell on 2002, while was out the DOC received notice that Dowell's DNA matched clothing on semen found of a victim of a crime that May 23, 1997, occurred on while out on Dowell was periods parole. first of two result, his As a the DOC sought parole, to revoke Dowell's as there were two years, days one month and fourteen of his sentence remaining. hearing A revocation was on held June allege any 2002. The ALJ ruled that the DOC failed to July conduct that violated Dowell's rules, request and thus, denied the DOC's to revoke Dowell's parole, concluding that the DOC "lost pursue any undiscovered conduct occur- ring during that once term" was appealed ruling revoked. The DOC this to Schwarz. upheld finding Schwarz decision, ALJ's that Wis. essentially requires a revocation rec- ommendation be based aon violation that occurred supervision. the current term The DOC then petitioned for a writ of certiorari in the trial court. After ordering briefs, the trial court reversed Schwarz's deсi- signed sion and an order effect. 4. As result of match, the DNA Dowell was kidnapping, robbery
convicted of armed two counts first-degree dangerous weapon. sexual assault with a February eighty In 2003, he was sentenced to a total years' imprisonment. Analysis.
II. *6 challenge ¶ a revocation determina 5. A rel. Macemon v. is certiorari. State ex tion reviewed (Ct. McReynolds, 596, 594, 561 N.W.2d779 208 Wis. 2d 1997). reviewing App. court is limited to determin The "(1) kept [parole] [w]hether ing: within its board (2) hoard] [the jurisdiction; ac acted whether (3) arbitrary, cording its action was law; whether represented oppressive unreasonable its and and will (4) judgment; the evidence was not its and whether might reasonably order or make the deter such that it question." Goulette, 207, v. 65 Wis. 2d mination in State (1974). Moreover, 222 "we review the 215, agencys 622 N.W.2d [trial] Kozich v. Em decision, not the courts." ploye 363, 368-69, Wis. 2d 553 Bd., Trust Funds 203 (Ct. 1996). App. N.W.2d830 "Statutory question interpretation ¶ a of law is novo, are not such, we de and as we bound that by review interpretation." agency's Hutson v. State Wis an 2d 97, 31, 263 Comm'n, consin Pers. 2003 WI Wis. degrеe However, of defer 612, 665 some N.W.2d 212. given agency's statutory generally an inter ence is depends degree "[t]he pretation, . . . of deference and agency's upon the 'administrative the extent which specialized competence, experience, and technical interpretation agency knowledgе and in its aid the (citation omitted). application Id. The statute.'" supreme three distinct levels court has identified weight, great weight de deference, due deference: 284, 2d LIRC, novo review. UFE Inc. v. (1996). The de novo standard review 548 N.W.2d57 "applicable agency clearly before the when issue one of first or when an on impression, аgency's position an issue been has so inconsistent so as to no provide (citation omitted). real Id. at guidance." Here, Schwarz indicated that although interpretation ALJ's with "consistent department's past practice," that "the department has sought never to revoke any person's parole super- vision on occurring during based conduct previous it supervisiont,]" appears revocation has been on at one sanctioned least occasion in the for conduct past occurring during previous term. As the on agency's position may the issue not be entirely consistent, we will employ de novo standard of review.2 *7 8. As the court supreme reaffirmed, recently
¶
statute,
"[w]hen
a
our
discern
interpreting
goal is to
the
intent of
legislature,
the
we
primarily
which
derive
brief
proper
Neither
the
addresses
level of deference to be
given
agency's interpretation
to the
of the statute. Relevant to
history
determination is the
of the agency's interpretation
in
application
past.
thе statute
the
haveWe
not been
provided
enough
with
just
information to discern
how often the
agency
upon
has affirmed
revocations based
conduct
occurring during
previous
parole.
a
term
Schwarz indicated
that the
has never
to
sought
revoke
based on such
conduct, but the DOC has referenced at least one occasion in
regardless
which the
a
Administrator affirmed revocation
of the
fact
during prior
that the conduct occurred
a
parole period. As
such,
employing
we are
novo
de
standard of review. How
ever, the
would be
same irrespective
outcome
of which level
employed,
deferencе is
ultimately agree
as we
with the
agency's interpretation
department
that the
lacks
pursue
upon
revocation based
conduct
that occurred
previous
parole.
term of
looking
plain meaning of
at
the statute." Wisconsin
DNR,
v.
Cranes and Doves
Concerned
Citizens
[I]f
¶
318, 677
6, 270 Wis. 2d
N.W.2d
WI
unambiguous,
do
consult extrinsic
we
not
statute
legislative history
ascertain its mean
such as
sources
meaning."
apply
plain
ing;
simply
Id. Further
we
its
ambiguous
not
"because the
more, a statute is
rendered
meaning!.]"
parties disagree
Id.,
7. A
as to
statute
its
readily susceptible
only ambiguous if
to two or
it "is
reasonably
meanings by
individu
well-informed
more
Accordingly, unambiguous
applied
are
Id.
statutes
als."
meaning,
plain
according
plain
mean
their
and that
ing
precedence
all
sources
"takes
over
extrinsic
agency interpretations."
including
construction,
rules
Inc.,
n.2.
person is owed to whom restitution diction. It states jurisdiction that the DOC preserves over a if the DOC person "commenc[es] an investiga- tion, a violation or issues issues an report apprehension request concerning alleged an violation to the prior of the ... expiration . . . term of parolee's supervision." The clear implication of the wording statute's is that jurisdiction DOC loses to commence an investiga- tion, issue violation or issue an report, apprehension request concerning alleged an it violation if has not done so before the term of supervision has ended. Stated differently, cannot commence prelimi- nary parole revocation proceedings after has ended if suрervision it has not its preserved juris- diction in one the three listed manners. The ALJ, refusing order a revocation of determined
Dowell's parole, Wis. unambiguous. was The ALJ explained:
I find the lost to pursue revo- cation Mr. Dowell's occurring conduct his last term when that term upon ended that parole revocation of I find .... attorney рayments unpaid of the status of the ordered restitution days probation expiration payment at least 90 before the date. If as made, probation ordered has not been the court shall hold a review date, hearing prior hearing to the unless the is volun- tarily probationer knowledge waived with the that waiver may prоbation in an result extension of or in a probation. probation, If the court does not extend it judgment unpaid shall issue a for the restitution and direct the clerk judgment of circuit court to file and enter the in the judgment docket, fee, hen without unless it finds that the already judgment against victim probationer has recovered a damagеs for the covered the restitution order. If the court issues judgment restitution, unpaid for the the court shall send person at his her last-known address written notification that a judgment unpaid civil has been for the issued restitution. The judgment judgments has the same force and effect as entered under s. 806.10. *9 Order and Warrant was prior once the Revoсation and expired last term the issued his any for undiscov- jurisdiction pursue to revocation lost occurring during that term. ered conduct stating: agreed, to conclude "It is reasonable Schwarz 304.072(3)] [§ legislature section the intended that that during be taken the action must to mean that during subsequent supervision, not current supervision." Upon reviеw, de novo we of our term agree. 304.072(3), § reviewing we 11. After Stat. ambiguous not and that
are satisfied clearly the statute DOC of time which the limits only jurisdiction person's parole. The revoke a has to interpretation the statute reasonable proceed- to initiate DOC's ings supervision." Had current "term is limited legislature permit revoсations meant prior parole proceedings violations, as advanced read have been written to DOC, statute would person's "prior sentence" or to the discharge person's "prior final from date to the supervision." parole, probation The or extended legislative history sup- review the contends рorts are that the we satisfied its view. Inasmuch as ambiguous, to extrin- we need not resort not statute is 304.072(3). § meaning aids ascertain the sic trial court asserts, and the Next, the DOC 304.072(3) § agreed, is not if that even Wis. Stat. ambiguous, harmonized Wis. Stat. it be with must 304.06(3). 302.11(6) According §§ DOC, to the 304.072(3) harmonizing statutes, the two other with 304.072(3) application. severely We limited its yields Harmonizing disagreе. the same the statutes result. 302.11(6) §§ ¶ 13. Wisconsin only general apply parolees.
state rules that all The *10 302.11(6) § part "Any relevant of reads: inmate re- (1) (b) parole (lg) on leased under or sub. or s. or 304.02 (1) subject parole 304.06 to all conditions and rules of the until of the sentence or until he she or 304.06(3) discharged by department." the Section part: states, in relevant
Evеry paroled prisoner legal remains in custody the department the provided by unless otherwise de- the partment. department alleges any If the condition or rule of has by prisoner, been violated department may physical take custody prisoner of the investigation alleged for the of the violation. If depаrtment any satisfied condition or rule parole has been violated it shall prisoner afford the hearings required such administrative as by are law. persuaded ¶ 14. We are not that a different out- by harmonizing come would result Wis. Stat. 304.072(3) § with these statutes. Stat. Wisconsin 302.11(6) § general addresses the rule that inmates totally required on released arе not free and are abide DOC's rules. Further, Wis. Stat. 304.06(3) parolees cautions that can be taken into custody for rule violations. Neither of these statutes presented address the issue here —whether a subse- quent period be can revoked violations of placed upon parolee rules for an earlier parоle. question §by 304.072(3), That is answered parole may the answer is that not be revoked for earlier violations. "[w]here
¶ 15. Moreover, two statutes relate to subject specific the same matter, the statute controls general App statute." Larson, State v. 235, WI Here, 6, 268 Wis. 2d N.W.2d Stat. 304.072(3) jurisdic- preserves specifies when the DOC 302.11(6) §§ are tion. Wisconsin parolee's general, explaining on the limitations more freedom. result, when Dowell's first As jurisdiction
supervision to initiate ended, the lost upon any proceedings based conduct parole. period of Had the rules of that in violation to read that the DOC retained been worded statute "expiration until the sentencе" person's discharge from final until the "date of probation, supervision," parole, it would or extended *11 yield However, desired the DOC. the result supervi- legislature phrase "term of chose to use argues The that a sentence not divided sion." DOC argument left to is better addressed into "terms." That legitimate legislature. Moreover, there are reasons during limiting for for violations basis only supervision. Not would stale the current term against, prove a be or defend but violations difficult person right truly earned to be rehabilitated who long-ago might paroled confronted with violations be supervision." pursued during the "term of earlier never argument Finally, ¶ hold we the DOC's ambiguities interрretation and that in this would result voluntary grant under never return "the could parolees engage in the could the DHA decision because following requesting serious viola- mischief return agent, hoping tions, albeit unknown parole term," on to be a clean slate a new exit with Any preposterous. an criminal act committed charge. subject criminal to a new earlier Dowell can attest to this fact—his earlier viola- eighty-year tion resulted in an sentence.
By the Court.—Order reversed. (dissenting). 18. SCHUDSON, J. While the is- appeal sue in this may is one on which reasonable minds differ, I believe the circuit court's conclusion is correct. meaning
¶ 19. supervision" What is the of "term of 304.072(3)? § under Wis. Stat. I'm not sure. But I am majority's explanation convinced that the of its "unam- biguous" tautological. rationale is Here, where even interpretation State officials are at odds over the seemingly simple thing these quite words, one seems supervision" ambiguous. clear: "term of Moving, proper methodology then, to the analysis ambiguous Department of an I statute, find the arguments persuasive. Corrections' The thoroughly interplay examines the of several statutes, apparent legislative supportive intent, and the case Department's argument The law. 'expi- that "the term § 304.072(3), ration of sentence' is not used in Wis. Stat. probation because suрervi- that statute also relates to sion, which is not a sentence," all but defeats the majority's Perhaps significantly, rationale. most 302.11(6)1 (7)(d)2 strongly support Department's view. (1999-2000), provides per Wisconsin Stat. tinent part:
Any (1) (b) inmate released on (lg) under sub. or or s. (1) subject 304.02 or 304.06 to all conditions and rules of expiration until the discharged sentencе or until orhe she is of department. added.) (Emphasis 302.11(7)(d) (1999-2000), provides: Wisconsin Stat. harmonizing statutes, and Therefore, supervision, I purposes
being of of the mindful supervision" Wis. under "term of am satisfied majority concludes. limited as the is not of that "term court, I conclude circuit Instead, like the re- sentence, supervision" entire an individual's covеrs Accordingly, way. along stops gardless of revocation respectfully dissent. I subsequently either after service released parolee
A who department in the of corrections of time determined hearings appeals in the or the division case of a waiver par. hearing under in the case of a department administration (c) subject (a) par. to all conditions by grant parole under or discharge by the sentence until and rules department. added.) (Emphasis