*1 REL. Richard Arthur EX STATE Wisconsin Petitioner,† GIROUARD, COUNTY, Hon. FOR JACKSON CIRCUIT COURT Radcliffe, Presiding, Respondent. W. Robert Appeals
Court on Submitted motion December No. 88-2047-W. 1988. 9, 1989. Decided March 833.) (Also reported in 439 N.W.2d granted. Petition to review † *2 petitioner For the the cause on was submitted Gaines, brief of A. Martha of Madison. respondent
For the the cause was on submitted brief of Donald J. Hanaway, attorney general, and McDermott, James H. assistant attorney general. Gartzke, P.J., Dykman Before Sundby, JJ. DYKMAN, Girouard, J. Richard an incarcerated indigent, appeals1 from an order denying his motion for petition supervisory
1Girouard filed his for a writ with both the appeals clerk of the court of and the clerk of the circuit court. appeal Notices of are filed clerk of with the the circuit court. Sec. (Rule) 809.10(1), may petitions supervisory Stats. We construe pending appeal judgment transcript of a in his
a free rights daughter. denying his Gir- with him visitation 814.29(1), Stats., which re- moved under ouard upon approving person’s quires court, a affidavit a payment any indigency, service other waive proceedings in court. The issue is in actions fees 814.29(1) provides indigent right an to a denying appeal transcript an order him an rights. conclude sec. Because we visitation not, affirm. does we Girouard, ordered that an incarcer-
The trial court rights indigent, his be with ated denied visitation daughter. an then moved the court for order Girouard transcription pursuant waiving to sec. costs denying appeal him Stats., so could the court’s order he *3 rights. motion, court denied Girouard’s visitation The appeals. and he pro- question
The transcript right indigent so he an to a can vides denying rights appeal from an order him visitation statutory interpretation. ques- requires review such We 184, Seitz, 180, E.S. v. 141 Wis. 2d 1987). 413 tions de novo. (Ct. App. 670, 672 N.W.2d construing in is to purpose Our a statute ascertain legislature’s give Our intent and it effect. construing primary in a statute is that source and, duty language, ambiguity, statute’s absent our State rel. 24 Cir. appeal. ex Brennan Branch of writs as notices of Ct., 1981). (Ct. App. 104 Wis. 2d 630 In beyond to correct of look labels ascertain the nature a document. 647-48, Incorporation Fitchburg, re Town 98 299 Wis. (1980). petition treat an We therefore Girouard’s N.W.2d appeal denying from trial court’s final order his motion for a free transcript. give language ordinary
is to meaning. its The “entire section of a statute and related sections are construing to be considered” in interpreting or words of a question statute. The threshold in reviewing a statutory statute is whether the lan- guage is, ambiguous, persons if “reasonable disagree could as to meaning.” its If a statute is unclear, we will legisla- “endeavor discover the ture’s intent by scope, as disclosed history, context, subject purpose matter and of the statute.” Severson, 189-90, Wis. 2d Dieckhoff (Ct. App. 1988) (citations N.W.2d omitted). 814.29(1), Stats., Section provides part: in Any person may commence, prosecute or defend any proceeding any court, action or any or writ of appeal therein, error or being required without security give pay any fee, for cost or to service or upon filing court, in the receiving approval and by court, the affidavit his or her affidavit that poverty person because of his or her is unable to pay the costs of the or proceeding, action writ appeal therein, give security of error or or to for the same, person and that the believes that he or she is entitled to the redress that he or she seeks in the proceeding, action appeal, or writ of error or setting briefly forth the nature of the cause or appeal, or defense.
It undisputed that the trial approved court 814.29(1), Stats., Girouard’s affidavit. The court denied Girouard’s motion because it concluded that the 814.29(1) costs and fees waivable under sec. did not transcription include appeal, costs. On Girouard claims that the terminology “any or fee” service in sec. 814.29(1) transcription includes costs. The state con- interpretation. tests this
581 persons could dis- conclude that reasonable 814.29(1), language of sec. to the agree as indigents in a to civil Stats., free allows 814.29(1) is not suggests appeal. The dissent to therefore we should not resort and that ambiguous, legislature’s to the history determine legislative the interpreta- However, assign different parties intent. the supreme court has scope of the statute. The tions to the occurs, ambiguity “an arises.” this said where LIRC, 805, 818, 407 Milwaukee v. Wis. County of (1987). Hinickle, addition, In in K.L 908, 913 N.W.2d 528, (1988), 102, 109, 423 N.W.2d 144 Wis. 2d interpretations “[ajs differing noted that court demonstrate, language may ... be party each —” Fur- reasonably ways construed in two different consistently said that ther, supreme court has govern should over the spirit or intention of statute City of the used. meaning language or technical literal 224, 236, Fitchburg, 112 Wis. 2d Madison v. Town of of 332 N.W.2d (1983). supreme by bound We are Lossman, 118 Wis. 2d court decisions. State 159,163 (1984). independently Because we 348 N.W.2d people could differ as to the conclude that reasonable Seitz, statutory language, 141 Wis. 2d at meaning at that therefore the statute is and context, unclear, history, scope, subject we look of sec. to discover if the purpose matter given be legislature indigents intended that tran- appeals. Dieckhoff, 145 Wis. 2d at scripts civil at 73. N.W.2d by sec. was amended Section read, previously 85vx, “[a]ny Laws of 1981. It ch. may commence, prosecute or defend ... person being required give security for appeal ... without *5 pay any or to or cost service clerk’s fee suit tax ... The amendment deleted word “clerk’s” before “fee” tax,” as well as “suit and made other nonsubstantive changes. reporter prepar- Act, Before this court fees for ing transcripts only were mentioned in 757.57, sec. subchapter The Act included Stats. them in II of ch. 85vy, “Court Fees.” Sec. ch. Laws of 1981. prior whether, We first consider to the 1981amend- 814.29(1), indigents ment, transcripts Stats., sec. allowed appeals.
in civil This be so would if the listed, i.e., items “service or fee or tax,” clerk’s suit transcript preparation included A costs. “service fee” now, then, meant the amount the sheriff collected for serving, attempting serve, a summons or other 59.28(1), 814.70(1). process. 1979; Sec. Stats. sec.' Tran- script costs not were listed under “clerk’s fees” before 59.42(2), amendment nor after. Sec. Stats. transcript 1979; sec. 814.61. were Nor costs included in 814.21, “suit tax.” Sec. Stats. 1979. We conclude prior amendment, to the sec. did not provide indigents for free in a civil appeal. question legislature’s
The next 814.29(1), amending provide intent was to indigent appellants transcripts. in civil cases with free 85vx, think not. Section ch. Laws of changed phrase “service or fee or suit tax” in clerk’s prior version of to “service or fee.” theory, change expanded Under Girouard’s this word previously the class of items those included in the appeal transcript statute to include civil costs. How- drafting ever, Bill record 1981 Senate which ch. no became Laws contains indication *6 expansion. legislature In this addi- intended the that provided legislature free has for tran- tion, the where indigents, scripts Stats., 967.06, in such as sec. for pay legislature for these who is to has also indicated transcripts. provision in is made No similar 814.29(1). legislature not did conclude that We transcripts indigent litigants provide for intend appeals 317, of it enacted ch. Laws 1981. when in civil reporter argues also that court fees Girouard subchapter II, under Court listed are now Stats., 814, and are therefore waivable under Fees, ch. 814.29(1). argument fails in view of our earlier This holding. conclude that “service fee” Because we encompass does not the cost of in sec. used transcript appeal, affirm the trial court’s a civil we in order.
By the affirmed. Court.—Order may, (dissenting). appro- SUNDBY, We in an J. interpolate, reject transpose priate case, words in a legislative capable enactment of to render a statute being given effect in accordance with the a sensible Corp. Dept., purpose lawmakers. NCR Revenue (Ct. App. 355, 442, 457, 384 128 2d N.W.2d 363 Wis. 1986). interpretation However, of a statute “[u]nless an plainly results, unintended would lead to ludicrous our is not to rewrite the statute.” In Interest function L.P., 2d G. & 119 Wis. 349 N.W.2d (Ct. 1984) added). (emphasis Unfortunately, App. suspect only know, that this case we cannot but when legislature it amended sec. dropped a stitch. Judge agree that, is Hand “There
I with Learned way it no to misread document than read surer (2d literally_” Walling, Guiseppi 144 F.2d 1944) (Hand, concurring), quoted J., in Massachu- Cir. Bonding States, v. United & Insurance Co. setts (1956) (Frankfurter, dissenting). J., 128, 138 U.S. meaning admonished, however, if the of a are unambiguous, read it as we are to is clear and statute aids, extrinsic such as and not resort to written statutory history, purpose legislative con- for the Creek, v. Oak 139 Wis. ex rel. Smith struction. St. (1987).1 What perfectly majority clear does, however, to take a by judicial ambiguous it statute, and amend find it may majority be correct The construction. *7 by compelled
legislature the the result did not intend dangerous highly language plain statute, it but is of the by judicial construction a statute courts to amend for assumption legislature mean did not that the the on it said. what 85vy, 85vg through
By secs. ch. Laws legislature collected, reenacted statutes revised and the Many relating of these sections and fees. to court costs throughout In the statutes. the scattered had been process, legislature from sec. the struck resulting statute The and “or suit tax.” “clerk’s” majority “any permits fee.“ The service or waiver holding cases as suggests number of majority that the vast 1The by County Milwaukee overruled sub silentio Smith have been does (1987), and K.L. LIRC, 805, 818, 407 N.W.2d 139 Wis. 2d (1988). Hinickle, 102, 109, The 423 N.W.2d 144 Wis. parties disagreed merely as to that the noted court in those cases parties agree is that a statute meaning Even where of a statute. Dept. EAA u. Rev. by agreement. that ambiguous, not bound we are (Ct. Foundation, 681, 684, 2dWis. Aviation Supreme 1988). accept Court the Wisconsin App. to I refuse discussion, intended, a canon of to overrule without the cited cases implanted jurisprudence of all firmly in the statutory construction jurisdictions. and all federal states intended could not have legislature concludes reporters fees of court to apply to not, is This conclusion under sec. 814.69. of the statute however, upon plain language based prior as it existed upon the statute amended but the amendment. still be waivable. If
Presumably, clerk’s fees will result, achieve that not, meaningless. To the statute however, a word to the statute majority restores I purposively deleted. believe we legislature which 814.29(1), Stats., its “fee” in sec. give should the word legislature pick up meaning and allow the plain respectfully I dissent. dropped stitch.