*1 Privаtely of A In the Filed Criminal Matter Complaint: Ralph A. Kalal State of Wisconsin ex rel. Petitioners-Petitioners, Jackie Kalal,
v. the Honorable County, Circuit Court for Dane Tjader presiding, Michele A. Finn, John V. Respondents. Schmeiser, Sarah Court Supreme January 2004. Decided argument Oral No. 02-2490-W. 25, 2004. May 2004 WI 110.) (Also reported in 681 N.W.2d *8 by petitioners-petitioners For the there were briefs Waring argument by Fincke, R. Bend, West and oral Waring R. Fincke. respondents, County
For the Circuit Court of Dane by Finn, and the John Honorable V there was a brief attorney general, Rice, C. David assistant with whom Peggy Lautenschlager, attorney on the brief was A. general, argument by Anthony and oral M. Tomaselli Brady, LLP, Quarles & Madison.
¶ 1. SYKES, In DIANE S. J. Wisconsin, dis- attorney primarily responsible trict for the decision charge person whether to a with a crime. Wisconsin 968.02(1) § general "[e]xcept Stat. states the rule: as provided complaint charging section, otherwise a this person only a with an offense shall be issued attorney county district where the crime is alleged to have been committed." exceptions
¶ 2. There are rule, however, this (3) from this case arises one of them. Subsection provides attorney ”[i]f Wis. Stat. 968.02 a district complaint, or is unavailable to issue circuit refuses judge permit filing complaint, judge of a if the probable person finds there is cause believe that the *9 charged an Wis. Stat. has committed offense." to be added.)1 968.02(3) (2001-02) § (emphasis by an a Madison ¶ effort 3. This case involves against procedure attorney her former to this invoke allegedly stealing employer his funds wife for attorney, her retirement earmarked for account. Tjader, complained the Madison Police Michele first Attorney Department County and the Dane District alleged by Ralph theft and Jackie Kalal. about the receiving from the later, months after word Several proceed legally attorney that she "was free to district necessary," Tjader filed a manner believed whatever she 968.02(3) § pursuant for the issu- motion to Wis. Stat. complaint against the Kalals. A ance of criminal filing proposed judge of the authorized the circuit complaint. argu- reconsideration, 4. The Kalals moved
ing did not that the district the record establish that complaint required attorney as had issue "refused" 968.02(3). judge § held that the The circuit Stat. standing heard, had no to be but addressed Kalals sought anyway it. The Kalals and denied motion appeals. supervisory The court of in the court writ applicable appeals writ because declined to issue the accepted review, had not been met. We writ standards the denial of the writ. and now affirm agree judge the circuit that because with We 968.02(3) parte expressly specifies an ex Wis. Stat. subject pro- person proceeding, who is the posed complaint of a reconsideration not obtain agree filing. judge's permit We also with its decision applicable appeals have writ standards court Statutes are to the to the Wisconsin All references indicated. unless otherwise 2001-02 version *10 not been established. we Neverthеless, reach the merits question interpretation presented of the here, might as it otherwise evade review. 968.02(3) By § requires terms, its Wis. Stat. judge prior
the circuit authorizing to make two determinations to 1) complaint: a issuance of that "the attorney district complaint;" or is unavailable to a issue refuses 2) probable that "there is cause person charged believe that the to be has committed an contemplates offense." The statute an exercise of dis- by judge following cretion these threshold determi- says judge "may permit" nations: the statute filing 968.02(3). § complaint. aof Wis. Stat. ¶ 7. Probable cause is not here, at issue nor is challenge judge's there a to the exercise of discretion to permit filing complaint. We are confronted only question meaning awith about the of the term "refuses" in the To statute. "refuse" tois indicate unwill- ingness thing. commonly ado As the term is under- reject stood, a "refusal" involves a decision to a certain choice or necessarily A "refusal," however, course action. need not expressed particular explicit
be or terms attorney's to be understood as refusal. A district complaint purposes refusal to issue of Wis. Stat. 968.02(3) § may directly be established or circumstan- tially. reject argument 8. We therefore the Kalals'
only unequivocal a direct and statement from the attorney e.g., complaint"— district "I refuse to a reading issue — satisfy can the statute. Such a literal would nullify by permitting attorney the statute the district statutory procedure by resрonding defeat the to the complainant equivocal vague or terms. On the other equate hand, to refusal with mere inaction con- runs trary accepted meaning to the of the term and could attorney's prosecuto- district exercise undermine the ongoing criminal inves- rial tigations. or interfere with judicially-authorized discretion complaint criminal 968.02(3) anot for the under Stat. is substitute attorney's charging discretion. exercise district operates upon check the district it as a limited Rather, attorney's
charging power and its terms be only complainant can when demonstrate that invoked charge, attorney in fact refused to has district to do so. unavailable
I. FACTS AND PROCEDURAL HISTORY *11 Tjader August 2001, Michele and 9. Until of employed and Associ- Sarah were Kalal Schmeiser by Ralph Kalal. ates, a Madison law firm owned Kalal's manager firm. On wife, Jackie, was the office for the Tjader February 25, 2002, filed motion Dane County requesting of a Circuit Court the issuance complaint against Ralph Kalal and Jackie criminal 968.02(3). Tjader's complaint, assert- under Stat. ing alleged felony theft, the Kalals counts of that four Tjader 40IK and stole funds withheld Schmeiser's Tjader the court that accounts. informed retirement City alleged reported she theft to the had Department August 2001, and that in Police Madison County to 2001, she had written the Dane November against Attorney asking bring charges him to District Tjader in her motion the district the Kalals. stated that attorney's response free tell her "was to to she was proceed legally neces- in whatever manner she believed generally, sary." asserted, more that the The motion also attorney charge to the defendants." district "has refused assigned Portage County The matter was 10. hearing Judge Finn, V. who held Circuit Court John Tjader Tjader's and on motion on March appeared hearing, at the Schmeiser as did Jason Han- County Deputy Attorney. son, a Dane District Hanson acknowledged Tjader that had contacted the district attorney’s ago,’’ office ’’somemonths and that the office complaint had not filed a in the matter. Hanson advised Judge thought attorney's Finn that he the district Tjader response qualified prosecute as a refusal under the statute:
I don't think affirmatively our office has ever stated we prosecute. so, would not What we have done is fail to do reading so I think a fair of refusal in the statute encompasses both the situations. We haven't told Ms. Tjader that going charges. we're not to seek We simply yet. haven't done it Tjader hearing briefly
¶ 11. testified at the recounted her tenure at Kalal and Associates, surrounding circumstances the establishment banking alleged accounts, the 401K and the Kalals' Tjader malfeasance. described her contacts with Department Madison Police and with the district attorney's explaining impression got office, "the I why was that matter was closed and that was I was getting do I invitation to what felt needed to be done." Schmeiser-also testified to circumstances of employment alleged her and the theft her 40IK *12 funds. Judge
¶ 12. Finn then addressed the elеments of charge § 943.20(l)(b), the theft under Wis. Stat. made a finding attorney factual prosecute, that the district had to refused probable
and concluded that cause to existed guilty believe the filing were Kalals of theft. He directed the complaint of a "consistent with the criminal complaint by Tjader." proposed that is At Ms. Hanson's request, judge appointment special the ordered the of a prosecutor. County On 28, 2002, March Dane Circuit Anthony appointed Judge A. To- Michael Nowakowski special prosecutor. maselli as April Kalals filed a motion 29, 2002, the 13. On special prosecutor. discharge the
to reconsider Judge finding contradicting explicitly Finn's Without attorney's a constituted refusal conduct that the district 968.02(3), argued that the Kalals Stat. under Wis. allowing private circuit" a citizen to "short by separation powers prosecutor's of discretion violates judicial into the discretion intervention "unwarranted prosecutors." publicly to Attached in our elected vested copy of a motion was November the reconsideration County Attorney District Dane 29, 2001, letter from Tjader, informing her the that Brian Blanchard to complaint in the a detective referred to had been Department. letter, Blanchard In the Police Madison heavy Tjader caseloads to consider also asked involving police a case and the fact that detectives necessarily simple," pension funds "is not misuse chargeable suggested as criminal if were that the case very straightforward civil suit." "it must be theft, then by responded Special prosecutor Tomaselli ¶ 14. challenge standing arguing no to the Kalals had that filing directing Judge a criminal Finn's order argued against complaint that Tomaselli also them. Judge objection premise Finn's order— of the Kalals' attorney's namely, refusal must be the district attorney accepted, explicit district if enable the would,— by withholding nullify operation an the statute explicit refusal. August By 2, 2002, dated decision written standing
Judge Kalals had no Finn held that complaint filing permitting the order contest parte proceed- "contemplates an ex the statute because right the defen- ing of cross-examination no with *13 anyone Judge dants else." Finn addressed the merits motion, however, the Kalals' and reiterated his find- ing attorney's that the district conduct from the date of Tjader's complaint hearing, initial to the date of the Deputy Attorney combined with District Hanson's hearing, statements at the constituted a refusal under the statute. sought supervisory
¶ 16. The Kalals a inwrit appeals pursuant § court erating 809.51,2 Wis. Stat. reit- attorney
their contention that the district
had
complaint
meaning
not refused to
a
issue
within the
968.02(3).
§
jurisdiction,
Wis. Stat.
Uncertain about its
appeals
petition
abeyance
the court of
held the
until
our resolution
rel.
of State ex
Unnamed
Person No. v.
O'Brien,
2003 WI
260 Wis. 2d
660 N.W.2d260.
The Unnamed Person No. 1 case
out of John
arose
a
Doe
proceeding
§
holding
968.26,
under Wis. Stat.
but its
jurisdic-
appeals
supervisory
that the court of
has
writ
judge sitting
parte
tion
over
actions of a
ex
аs a
judge,
applies equally
proceedings
court,
not a
con-
968.02(3).
by judge pursuant
§
ducted
to Wis. Stat.
After Unnamed Person
released,
No. was
the court of
appeals
petition
the merits of
addressed
the Kalals'
and
concluding
applicable
writ,
declined to
issue
supervisory
specifically,
writ
a violation of a
standards —
"plain duty" by
judge
the circuit
not been estab-
—had
specifically,
lished. More
the court concluded that noth-
968.02(3)
ing
§
requires
in Wis. Stat.
that the district
attorney's
explicit,
Judge
be
refusal
and therefore
finding
permit-
subsequent
Finn's "refusal"
order
person
request
"A
the court to
supervisory
exercise its
jurisdiction
... over
court and the presiding judge, or other
person or body, by filing
petition
supporting
memoran
809.51(1).
dum." Wis. Stat.
*14
complaint against
ting
filing
the
did not
of a
Kalals
the
duty.
plain
accepted
We
review.
violate
STANDARDS
II. SUPERVISORY WRIT
supervision
for
A
is not a substitute
17.
"writ
appeal."
v.
Court
an
State ex rel. Dressler
Circuit
for
County,
622, 630,
2d
III. DISCUSSION Standing A. Judge Kalals lacked Finn concluded that the
standing bring from his to a motion for reconsideration complaint permit filing a criminal decision 968.02(3). pursuant to Wis. Stat. He was correct. The upon person statute does not confer who is the subject proposed right prosecution partici- of a any pate way or to obtain reconsideration of the provides: ultimate decision reached. The statute If attorney a district refuses or is unavailable issue a complaint, may permit filing a circuit judge of a complaint, judge if finds probable there is cause to that the person charged believe to be has committed an hearing. offense after conducting a If the district attor- ney complaint, has refused to issue a she he or shall be hearing informed The hearing attend. *15 ex parte shall without right be and of cross- examination. 968.02(3). §
Wis. Stat. expressly specifies parte ¶ The 19. statute an ex hearing right no If of cross-examination. the Kalals right standing hearing, have no or to be heard at they right standing cannot claim a to be heard on a reconsideration motion. say judge's
¶ 20. This is not to that a decision to complaint pursuant procedure issue a to this is com- pletely A in unreviewable. defendant named a com- (3) plaint pursuant issued to subsection the statute opportunity challenge has the same in circuit court legal sufficiency complaint and factual of as a complaint pursuant defendant named in a issued (1). felony prosecutions, includes, subsection in This right preliminary hearing to a under Wis. Stat. § 970.03. appeals previously court of has held right appeal judge
that there is no
a decision of a
on
968.02(3).
§
petition
a
under Wis. Stat.
v.
Gavcus Ma-
(Ct.
roney,
App.
69, 70,
2dWis.
B. of a Plain Violation requirement A22. basic of a the issuance supervisory appellate an writ court is a violation or impending plain duty by violation of a the circuit court judge. plain duty unequivocal A "must clear and, be responsibility facts, under the to act must be imperative." Cannon, State ex rel. Kurkierewicz v. (1969). 368, 377-78, 2dWis. 166 N.W.2d255 explain precisely ¶ 23. The Kalals' briefs do not 968.02(3) imposes plain duty upon how Wis. Stat. *16 judge, argument the at oral but counsel advanced the proposition requirement that the statute's of a refusal attorney charges suggests the district to file that the judge duty plain correctly circuit ahas determine the presence authorizing of this threshоld refusal before complaint. the In essence, issuance of criminal the argue judge sitting hearing parte Kalals that the ex in a 968.02(3) § plain duty under Wis. Stat. has a to cor- rectly apply find facts and the law. accept proposition,
¶ 24. We cannot this as it jurisdiction supervisory virtually would extend to a range involving finding unlimited of decisions the application obligation judges facts and correctly apply of law. The general implicit
the law is
and
in the
legal system.
supervisory
entire structure of our
provide
writ, however,
serves narrow function: to
judges,
the
courts,
direct control of lower
and other
judicial
non-discretionary
officers
fail
who
to fulfill
causing
through
duties,
harm that cannot be remedied
appellate
process.
Burnett,
review
See
2dWis.
at
adopt
96-97;
Gavcus,
see
writ would transform the writ all-purpose appellate an into alternative to the review process. judge's
¶ 25. To the extent that a circuit decision permit filing complaint of a under Wis. Stat. 968.02(3) legally factually unsupported, complaint may defendant named in the seek its dis- missal the circuit court after it filed, has been may pursue appellate standard remedies thereafter. statutory prerequisite judge But the find a prosecute by attorney refusal to the district does not impose upon judge plain, the circuit clear, non- discretionary, imperative duty necessary of the sort supervisory for a writ. Although
¶ 26. the Kalals hаve failed to establish plain duty the existence of a and are not entitled to a supervisory writ, we will address inter- pretation question presented by proper this case. The interpretation of the term "refuses" in Wis. Stat. *17 968.02(3) § is central to the administration of this question likely statute. It is also a that is to recur but review, evade because a decision under the statute is directly appealable, scope supervi- not itself and the sory procedure plain writ is limited to violations of a duty. 968.02(3) §
C. Wisconsin Stat. Separation powers/charging power i. and discretion attorneys pri- 27. District in have Wisconsin mary responsibility and wide discretion to determine prosecution. whether commence a criminal State v. (1979). Karpinski, Wis. 285 N.W.2d729 authority 968.02(1), is conferred Stat. Wis. provides "[e]xcept provided which as otherwise complaint charging person section, this with an only by attorney offense shall be issued county a district alleged where the crime is to have been commit- ted." attorney's charging power
¶ 28. But the district
attorney
not unlimited or unfettered. "The district
Wisconsin is a constitutional officer and is endowed
approaches
quasi-judicial."
with a discretion that
(citing
Kurkierewicz,
Peterson,
2d at 378
State v.
(1928)).3
351, 359,
195 Wis.
¶ 29. The sine non of the decision is probable Hayes, cause. Bordenkirscher v. 434 357, U.S. (1978). system, long prosecutor 364 "In our so as a has probable cause to believe that accused has commit- ted an statute, offense defined the decision whether prosecute, charge bring not or to and what to file or grand jury, generally entirely before rests in his discretion." Id. recognized "[t]here 30. We have that is no obli
gation
duty upon
attorney
prosecute
a district
to
all
complaints
may
Kurkierewicz,
be filed
him."
with
Thompson
42
378;
State,
Wis. 2d at
see also
v.
61 Wis. 2d
(1973).
212
N.W.2d
While the district
attorney
power
duty
prosecute
has
and the
to
great portion
criminal offenders, "it is obvious that a
power
placed
of the state has been
in his hands for
justice,
him to use in the furtherance of
and this does
per
require prosecution
not
se
in all cases where there
appears to be a violation of the law no matter how
general,
Kurkierewicz,
trivial."
In
Wis. 2d at 378.
"the
prosecuting attorney
people
is answerable to the
legislature
state and not
to
courts or the
as to the
way
power
prosecute
in
he
which
exercises
com-
Milwaukee,
(1935).
Guinther v.
217 Wis.
plaints." Karpinski, 608; Kurkierewicz, 92 Wis. 2d at Kenyon, 378; 2d at State v. 2d 36, 42, 85 Wis. (1978). N.W.2d prior
¶ 31. We have in cases referred to American pertain- Bar Association Criminal Justice Standard 3.9 ing charging identifying discretion, exercise of prosecutorial charging two circumstances which dis- "[t]his cretion be abused: standard makes it abun- dantly clear that... it is an abuse of discretion to charge clearly when the evidence is insufficient *19 support a conviction. It is also an abuse of discretion for prosecutor bring charges on counts of doubtful purpose coercing plead merit for the guilty of a defendant to Thompson, to a less serious offense." 2dWis. Karpinski, 329-30; at attorney generally 92 Wis. 2d at A 609-10. district bring charge
should not unless he finding or she guilt beyond the believes evidence can sustain a of guilty a reasonable all the are doubt. Not convicting guilty may convictable; moreover, all the not be desirable. Full enforcement of the criminal "is laws possible Wayne LaFave, neither nor desirable." 4 R. Nancy King, Israel, Jerold H. and J. Criminal Proce- (1999). 13.2(d), § dure at 22-23 Accordingly, specifies ABA Standard 3.9 discretionary beyond question number of factors the of may suspect's guilt legitimately the be taken into charging consideration the decision. These include by offense; the extent of harm caused the the threat posed public by suspect; ability to the the the and willingness participate; dispropor- the of victim to the punishment par- tion between the authorized and the possible improper offender; ticular offense motives of complainant; cooperation suspect a arrest/prosecution of the with the possibility others; or likeli- jurisdiction.
hood of another American prosecution by Justice, Bar Association Standards Criminal 1, Vol. for (2d also Karpinski, see 1980); Standard 3-3.9 ed. 2d Thompson, 608-09; 2d at 61 Wis. at 329-30. Wis. legitimate discretionary charg- There well be other factors to the circumstances of ing relating particular each individual complaint. did not this attorneys always occupy 33. District criminal deci charging vis-a-vis
position primacy 1945, until file sions. From statehood decision to charges entirely magist criminal was vested local Defendant, rates.4 State v. Unnamed 150 Wis. (1989). time, N.W.2d 696 Over role district became more from 1945 attorney prominent: 1969, criminal by magis until were issued complaints in 1969, trates or district the statutes attorneys, were revised to confer district upon attorneys history constitutionality procedures initiating proceedings criminal have been discussed at some law, length conflicting in our case In State rel. with results. ex Connors, Unnamed Petitioners v. 136 Wis. 2d 401 N.W.2d (1987), 968.02(3), this court declared Stat. unconsti separation powers tutional under as an encroachment judicial power branch into the executive branch initiate *20 charges. by criminal sharply This decision was criticized Justice dissent, (Steinmetz, J., Steinmetz in see id. at 161-71 dissent Becker, ing), Scrutiny and in an article Samuel Judicial Prosecutorial in the File a Complaint, Discretion Decision Not to (1987-88). Marq. L. Rev. 749 This court overruled Connors in Defendant, 352, n.4, 441 State v. Unnamed 150 Wis. 2d (1989), citing belatedly N.W.2d 696 the Becker article and recognizing power charges the to issue criminal was historically Jr., power. Alstyne, a shared See also W Scott Van Puzzle, Commment, Attorney The District Historical —A L. Wis. Rеv. subject power charge primary offenses, criminal to exceptions certain limited such as the one involved in this case. Id. at 363-64. § part Stat. enacted as 34. Wisconsin 968.02 was procedure
of a revision of the state's criminal code by the Criminal of the Judi- initiated Rules Committee Chapter Prefatory 255, governing cial Council. See Laws Note. This new statute filing the issuance and major complaints represented criminal a con- attorney's charging power in centration of the district 968.02(1) ("a § charging complaint office. See Wis. Stat. person only by a with an offense shall be issued a added). attorney") (emphasis district legislature time, however, 35. At the same power by special provision, offset this inclusion of (3), attorney: subsection as check on the district § change present [Wis. 968.02] Stat. is a from the law designed give attorney greater the district voice initiating proceedings.... of criminal (3) provides upon attorney Sub. a check the district who complaint, fails to authorize issuance of a when one issued, by judge providing should have been for a authorize its issuance. (3) provides
Sub.
also
a vehicle for the
issuance
complaints
attorney
the district
unavailable.
when
Chapter Laws of
Judicial Council Committee
§
provision
Note to Wis. Stat.
968.02.5 This
has been
968.02(3),
§
Wisconsin Stat.
is one of several
attorneys.
grant
checks
the broad
of discretion to district
on
charging power upon
Other statutes confer
state officers other
way
attorney.
Some are structured in the same
than
district
(circuit
at issue here: see Wis. Stat.
judge
23.65
as
statute
if
complaint alleging
file
violation of conservation
laws
*21
important
protection
described as
to the
of victims'
rights,6
vestige
legal
but it
is also
of a much older
judges
tradition that accorded
a role—at one time the
preeminent
deciding
charge
role—in
whether to
sus-
pects with crimes. Unnamed Defendant,
Student 294 - (1976). N.W.2d622 Statutory Construction, cited ¶ 39. Sutherland's foregoing passage from by Beilfuss Justice Chief Baum, the difference the "statutory addresses between meaning" "legislative intent" to statu- approaches tory with a reference to Jus- interpretation, beginning tice Holmes' famous quotation: "statutory by meaning" approach]
[The was stated Justice Holmes his remark that do not inquire "we meant; only legislature what the we ask what preference meaning statute means." for the [Holmes'] legislative over statute intent as criterion of interpretation expressly has been endorsed Justices *23 Frankfurter, Jackson latter of whom said that using "legislative he even tried to avoid the term intent." supported Courts have also the Holmes view. 2A Sutherland Construc- Norman J. Singer, Statutory (6th 2000).7 tion 45.07, § at ed. One state- concise ment the Holmes' "statutory meaning" is approach from the United following Supreme States Court: "We have stated time and again that courts must that a presume legislature says in a statute what it means and means a statute what it says there." Germain, Connecticut Nat'l Bank v. 503 U.S. see also Underwriters Ins. v. (1992); 253-54 Hartford Bank, (2000). Union Planters 530 U.S. 40. Sutherland further describes the distinction
¶ between these interpretive alternatives:
Generally legislative employed when intent is as interpretation, criterion primary emphasis for onis what statute meant to the legislature members of hand, it. On inquiry which enacted the other into Holmes, The quotation famous is frоm Oliver Wendell Theory Legal Interpretation, L. Harv. Rev. (1898-99). greater manifests generally meaning of the statute is to whom it public of the for what members concern addressed, understand. Statutory Singer, Construc- Sutherland
2A J. Norman § at 40. tion 45.08 "[i]mplied suggests en- an that 41. Sutherland point is .. . dis- of view Holmes'
dorsement of Justice preference many express which in the cases cernible dictionary 'ordinary,' 'natural,' 'normal,' or 'common,' § statutory language. Id., 43. 45.08 at definitions" meanings favoring "policy conventional Furthermore, a obscurely understandings general evidenced over supported legislators in the oft- intention of the repeated premise determined intention must be language itself." Id. at primarily statute of the from the 46. finally, for statu- materials And "resource commonly into two
tory classified are construction categories, fundamentally 'intrinsic' and called different refer to the text These characterizations aids. 'extrinsic' general matter, Id., As a 45.14 at 109. statute." "[e]xtrinsic on the to decisions based ... are useful aids legislature, have aids intrinsic while intent of the *24 'meaning greater significance on the decisions based general." by people Id., in as understood of the statute' § 45.14 at 109-10. general background against these 43. Viewed statutory interpretation case
principles, Wisconsin's
something
fashion,
of a combination
in
law has evolved
typical
analytical
generating
confusion. The
some
pur-
statutory interpretation
the
declare that
case will
give
statutory interpretation
and
pose
is to discern
of
proceed
legislature,
to
but will
the
the intent of
effect to
readily
interpretation
principles
more
that are
recite
661
statutory meaning
with a
associated
determination of
legislative
notably,
plain-
rather than
meaning
intent —most
the
e.g.,
See,
Schwarz,
rule.
State ex rel. Cramer v.
¶¶ 17-18,
86,
473,
2000 WI
236
2dWis.
613 N.W.2d591.
Although
legislative
ascertainment of
intent
is the
frequently-stated goal
statutory interpretation,
our
generally
methodology
cases
to
adhere
that relies
primarily
statutory meaning
on intrinsic sources of
legislative
confines
to
resort
extrinsic sources of
intent
statutory language
ambiguous.
to cases which the
is
Id,.;
O'Connell,
¶¶
76,
see also Seider v.
2000
43-53,
WI
Setagord,
659;
236 Wis. 2d
612 N.W.2d
State
211
v.
(1997);
2d
406-07,
Wis.
N.W.2d
State v.
Williams, 198
2d 516, 525-27,
Wis.
¶ 44. we now conclude that the statutory interpretation eral framework for in Wiscon- requires some is, sin It course, clarification. a solemn obligation judiciary faithfully give the effect to by legislature, requires laws enacted the and to do so statutory meaning. determination of Judicial deference policy legislature choices enacted into law the requires statutory interpretation primarily that focus language on the of the statute. We assume that legislature's expressed intent lan- guage. legislative may Extrinsic evidence of intent statutory interpretation become relevant in some primary inquiry. circumstances, not but is focus It is the law, enacted not the intent, unenacted that is binding public. purpose on Therefore, of statu- tory interpretation tois determine what the statute given proper, means so it full, be its intended effect. *25 repeatedly
¶ held that statu- Thus, 45. we have language "begins tory interpretation of with meaning plain, we of the statute is statute. If ordinarily stop inquiry." Seider, 232; 2d at 236 Wis. Setagord, 406; Williams, 198 211 2d at see also Wis. Statutory Martin, 2d 525; 2d at 162 at 893-94. Wis. Wis. ordinary, accepted language given common, its is meaning, specially-defined except that technical or given special phrases are their or or technical words County, meaning. Bruno v.Milwaukee definitional ¶¶ 633, 656; see 28, 8, 20, WI 260 Wis. 2d 660 N.W.2d 990.01(1). Wis. Stat. also important meaning.
¶
So, too, is
is
46. Context
operative
in
of the statute
which
the structure
statutory language
language appears.
in
Therefore,
is
terpreted
in
used;
is
not
in the context in which it
part
whole;
of
relation to
isolation but as
closely-related
surrounding
language
statutes; and
of
reasonably,
results.
to avoid
or unreasonable
absurd
Delaney,
9, ¶ 13,
77,
2d
259 Wis.
State v.
2003 WI
Physicians
Wis.,
Co.
v.
Ins.
416; Landis
N.W.2d
Seider, 236
¶
1,
893;
86,
16,
2d
628 N.W.2d
245 Wis.
WI
Statutory language
read
is
where
2d
Wis.
every
possible
give
word,
order
effect to
reasonable
surplusage.
Bruno,
Martin,
894;
2d at
to avoid
analysis yields
process
24. "If this
Wis. 2d
meaning,
plain,
no
then there is
clear
according
applied
ambiguity,
this
and the statute is
meaning." Bruno,
its
260 Wis.
ascertainment
¶
unambiguous,
statutory language
there
20. Where
interpretation,
to consult extrinsic sources
is no need
history.
legislative
Id., ¶ 7; Cramer, 236
2dWis.
as
such
*26
¶
Seider,
¶
473,
18;
211,
50; Martin,
236
2dWis.
162
construing
interpreting
2dWis.
at 893-94. "In
or
liberty
disregard
plain,
statute
court is not at
Pratt,
clear
of
words
the statute." State v.
36 Wis. 2d
(1967).
312, 317, 153
18
N.W.2d
ambiguity generally keeps
¶ 47. The
test
statutory language:
ambiguous
on
focus
a statute is
capable
being
reasonably
if it is
understood
persons
well-informed
Bruno,
in two or more senses.
¶
633,
19; Martin,
2dWis.
¶ 51. haveWe that "tradi- tionally, legislative history appropriate 'resort to is not finding ambiguity.1" of Seider, absence (quoting Sample, Wis. 2d State v. 2dWis. (1998)) (quoting 487, 495-96, 573 N.W.2d in turn, 406). Setagord, generally 211 Wis. 2d at This rule "prevents tapping legislative history courts from unambiguous ambiguous." show that an Id., statute is prevents ¶ 51. That is, the rule the use of extrinsic interpretation vary plain sources or contradict the meaning by application statute, ascertained foregoing principles interpretation. gen- as a Thus, legislative history matter, eral need not be and is not except ambiguity consulted to resolve an in the statu- *28 tory language, although legislative history is sometimes justice's concurrence our statutory interpretation cases have not been Accordingly, consistent. here we refocus the primary statutory interpretation inquiry intrinsic, on textual statutory meaning sources of and reiterate the rule that extrin- interpretation sic of generally sources are not consulted unless there ais need to resolve an ambiguity statutory in the languagе. 49-50, See her ¶¶ In concurrence the chief infra. justice represents also that this opinion’s restatement of the law statutory interpretation many of is respects "in similar" to the approach by justice taken the chief in certain recent cases. Abrahamson, Concurrence of Chief Again, Justice 59 n.2. this matter, overstates the the have reasons we noted. verify plain-meaning inter- or consulted confirm pretation. ¶¶ Seider, 51-52. ap- Properly understood, and this stated 52. statutory
proach interpretation literalistic, is not nor "conclusory" application, in as it or "result-oriented" is by justice's suggested chief concurrence. Concur- interpre- ¶ 63. An Abrahamson, Chief Justice rence of textual, on intrinsic sources of tive method that focuses meaning statutory use of extrinsic and cabins the grounded legislative in than a intent is more sources of history cynicism legislative about the or mistrust judicial legislative processes capacity or be manipulated. Justice Abraham- Concurrence of Chief statutory interpreta- principles son, ¶¶ 63, in here are rooted and tion that we have restated government "a the rule of law. Ours is fundamental to simply incompatible with men," laws not "it gov- government, fair indeed, even with democratic by meaning of a law determined ernment, to have the lawgiver what the meant, rather than what the lawgiver promulgated." Scalia, A Matter Antonin (Princeton University Interpretation, Press, at 17 1997). governs, the intent of the law that not "It is the they lawgiver.... will; intend what but it is Men they only Id. whiсh bind us."9 laws that enact Sunstein, on justice cites whom chief Professor see Concurrence intent, of Chief Justice legislative issue of article, Abrahamson, n.3, In his shares these concerns. 60¶ State, Regulatory Sun- Statutes Professor Interpreting legislative history and "statu between stein draws distinction referring to en tory previously term background," the latter Sunstein, repealed statutory provisions. See Cass R. acted State, L. Regulatory in the Harv. Rev. Interpreting Statutes significance of Justice Scalia's concerns 430. He notes the history interpretation: legislative use of about *29 Applying principles ¶ 53. here, these we conclude 968.02(3) language that the Stat. is clear and (as unambiguous. particularly, More the term "refuse" refuses") attorney in "the district has common and accepted meaning, ascertainable reference to the dictionary definition. "[t]o unwillingness
¶ 54. To refuse is indicate to accept, give, Heritage do, or allow." The American (3d 1992). Dictionary English Language ed. ordinarily As the term is understood, a "refusal" in- reject volves decision to certain choice or course of statutory action. This definition is reasonable in the statutory context and consistent with the manifest purpose. Accordingly, meaning plain, the statute's is ambiguity clarify, there is no and no need to consult legislative history. extrinsic sources such as accepted ¶ 55. This common and definition im- plies necessarily more than inaction, mere but not does require express attorney. an statement from the district prоof, As with other elements of courtroom a refusal proven directly under this statute be or circum- legitimate Although Concerns of this sort are both and well-taken. proper background it look actually- is at a statute's in the form of repealed provisions, legislative history, enacted and which was enacted, rarely permitted supplant never should be the statu- tory they ordinarily words as are understood. This is so because language promotes attention to the the rule of and because of law democratic and constitutional considerations —the words rather procedures than intent I. survived article Id. Thus, urges he regarding legislative history, caution gener- ally justifying its use language where the ambigu- ous or results in an Id. at irrationality injustice." "unintended *30 by reasonably stantially, words drawn from inferences open explicit, a and Thus, refusal can be and conduct.10 and effect, or it can be indirect in a to that as statement long period that, silence or inaction inferred, as in a gives totality circumstances, rise to a under the attorney intends the inference that district reasonable period well indicate an not A of inaction to act. by charging ongoing investigation pending decision or ordinarily attorney; will not the inaction alone district prosecute. support of a refusal to an inference interpretation plain-meaning of "re- ¶ 56. This hierarchy preserves specified in the statute the fuses" primary, attorney's charging authority is —the district by secondary judge's, is reinforсed the the circuit —and Note, which characterizes Judicial Council Committee attorney's on district this as a "check" the subsection 968.02(1) (3); § charging power.11 and see See Wis. Stat. supra. ¶Note, Committee also Judicial Council requirement prior the district of a refusal statute's procedure attorney forth in set demonstrates that 968.02(3) § substitute not routine Wis. Stat. is attorney's the other exercise of discretion. On district interpretation, requiring an hand, a strict and literal attorney, explicit district of refusal from the statement hearings under attorney receives notice The district judge: "If the district may appear this before the statute he she shall be attorney complaint, has refused issue 968.02(3). § hearing may attend." Wis. Stat. informed of the attorney's position should Determining precise the district ordinarily not difficult. be O'Connell, 51-52, 236 Wis. See Seider v. ¶¶ WI history is con (legislative sometimes N.W.2d statute). of a meaning interpretation plain to reinforce a sulted argued by contrary
as Kalals, to and could defeat purpose attorney of the statute. The district could 968.02(3) by simply block the use Wis. Stat. re- sponding complainant vague and uncertain terms. Tjader case, In this testified she re-
ported alleged police August theft to the 2001 and *31 attorney to the district November in that as hearing, of the date of the 13, 2002, March the district attorney charges, had not filed but, rather, had indi- pursue legal cated to her that she was free to whatever Deputy Attorney recourse she wished. District largely agreement Hanson's statements were in with Tjader's. While he admitted that his office had not affirmatively рrosecute, stated it would not he made it attorney's position clear that the district was that the of conduct his office constituted "refusal" under Wis. 968.02(3) Tjader pursue Stat. and that could other Judge remedies. Finn's conclusion that these facts in totality part their amounted to a refusal on the attorney plain-meaning district is consistent with the interpretation Accordingly, of the statute. we affirm the appeals. decision of the court By appeals the Court.—The decision of the court of is affirmed.
¶ {concur- 58. SHIRLEY S. ABRAHAMSON, C.J. join ring). again I mandate, the but I return once to this approach(es) statutory interpretation. court's is It important, litigants, Ias have written before, that lawyers, legislators, people courts, and the Wisconsin legislative approach to inter- understand our know and pretation.1 sig- opinion I
¶ makes what consider 59. This explaining in what the court actu- nificant advance ally doing interpretation.21 think, however, apply parts of this it will be difficult understand purposes opinion in several because it works at cross strongly example, opinion emphasizes respects. For many to include but broadens textualista textualista (including plain meaning on folk those this matters the court) rejected. recognizes purposes It have interpretation legislation considered should be consequences of different to consider the but refuses (hut interpretation interpretations an does as aid opinion). consequences right in this consider the significant advance is that The most long quoted too-oft but at last abandons its court aphorism that to determine intent erroneous Peters, v. 33, 263 State WI *32 (Abrahamson, For C.J., concurring). a discussion of N.W.2d 171 Popkin, Statutes in statutory interpretation, see William D. Interpretation 151 et Theory Statutory History The and Court: of (1999). seq. 2 respects opinion many is in forth in the approach set I opinions majority set forth in have to one I have similar I state opinions authored One difference is that authored. See, e.g., may interpreting statute. "history" in that a court use 300, 5, 21, 268 2dWis. of Morford, re In Commitment 2004 WI ¶ Bast, v. 152, Manor Assocs. 349; 2003 WI Highland 674 N.W.2d Cole, 59, State v. 709; 2003 WI 9, 1, 2d 672 N.W.2d 268 Wis. ¶ 167, 663 25, 262 Wis. 2d N.W.2d ¶
671 "if a legislature3 statute is ambiguous, reviewing context, to court turns and scope, history, purpose of the statute."4 opinion 61. This correctly concludes that context,
court resorts to scope, and purpose statute without to an having declare in the ambiguity
3As I
previously,
have written
see In re Commitment of
Byers,
86,
48,
113,
2003 WI
263 Wis. 2d
Rather, discerning giving and effect to the "intent" of the legislature an logic exercise in court which a determines what person legislator a reasonable in the position enacting of a legal the statute have presented would said about the issue in a given Sunstein, case. Cass R. Interpreting Statutes in the State, (1989) Regulatory 405, 103 Harv. L. Rev. (arguing searching legislative that for intent looking does not involve general legislative "a aim or purpose, but see instead to more particularly enacting legislature how the would have resolved question, resolved, it intended question how that if be it had been presented."). Comm'n, Wisconsin S. v. Gas Co. Public Serv. 57 Wis. (1973). Messer, N.W.2d See Hubbard v. 2003 WI 44-46, J., 267 Wis. 2d (Roggensack, ¶¶ 673 N.W.2d676 J.)
concurring, joined Wilcox, J., Crooks, (objecting my declaring context, scope, history, resort be had to purpose without a declaration that ambiguous). the statute is
672 context, states: majority opinion "[S]cope, statute.5 The to are relevant a purpose perfectly plain-meaning and long of as as the unambiguous an statute interpretation the context, and are ascertainable from scope, purpose rather itself, and of the statute than text structure sources, as The trick legislative history."6 extrinsic such is give and this sentence understanding applying from the text and meaning to the "ascertainable phrase 5Majority op., 48. ¶ "history" Byers, 263
I add word to the list. See also the 113, (Abrahamson, C.J., concurring) a (urging 2d 45-47 ¶¶ (court statement); Cole, must 262 Wis. similar the legislative language intent of statute ascertain the from contеxt, history, objective scope, relation its and intended including consequences of alternative accomplished, to he interpretations). interpretation to a resort canons of
So too can court Peters, Wis. 2d plain meaning. See determine the C.J., of 27-28, (Abrahamson, concurring) (discussing use ¶¶ by interpretation position in contrast to the taken a canon of of Sykes, opposing use majority opinion, authored Justice Roemer, v. plain meaning); Chisom a canon to determine (1991) (Scalia, J., dissenting) (using established U.S. construction, ask whether there is the Court should canons permissible meaning other than the indication that some clear Scalia, A ordinary also Antonin Matter applies). one See (en- (1997) 25-27 Interpretation: Federal Courts and Law ap- dorsing of construction in textualist the use canons proach). Statutory Construc- discussing
In Sutherland's Statutes tion, relies, "[I]t wrote: majority Justice Scalia upon which as a primarily not teacher law books that functions one those expert adviser, litigator's as research tool but say, you why the say, and to lead to cases that witness —to your Id. at way client wants." interpreted should be statute 15.
6 Majority op., *34 "text," structure of the "Ascertainable," statute itself." elasticity. and "structure of the statute itself' have From my perspective saving grace. that is stating
¶ 62. Our cases have been inconsistent in
ambiguity
whether an
must be declared7 before a court
terms,
scope,
examines the
of a statute in relation to the
history,
subject
legislation,
cоntext, and
matter of the
spirit
the
act,
nature of the
the evil intended to be
object
general
sought
accomplished,
the
remedied,
to be
majority
consequences.8
opinion
sepa-
the
now
7 Compare, e.g., Hughes
Chrysler
v.
Corp.,
Motors
197 Wis.
(1996)
973, 978,
2d
542
declared);
N.W.2d 148
(ambiguity not
Kelley v. Marquardt,
234, 247-48,
172 Wis. 2d
Examining
of alternative
consequences
interpreting
that
way
stating
of
another
be
interpretations
absurd
should
provision, unreasonable or
fulfilled.
purposes of the statute should be
avoided and the
9
sources,
and intrinsic
see
For a discussion of extrinsic
1312, 221
County v.
Local
Wis.
Employees,
Juneau
Courthouse
(1998).
630, 642-43,
2d
conclusion. The commented, "I am a textualist. I am an In Re Scalia the originalist. I am Liptak, not a nut." Adam Outspoken Reserved, Times, May 2, v. Scalia the The New York 2004, at 27.
12 See, Byers, e.g., (Abrahamson, 45-57 ¶¶ C.J., concurring). inquiry Justice Scalia such views an as "not merely waste of research time and ink" as but a "false and Aniskoff, v. Conroy disruptive lesson in the law." 507 U.S. (1993) (Scalia, J, concurring). *36 13 Byers, 113, (Abrahamson, C.J., 263 2d 52 Wis. ¶ concur ring).
Interpretive problems arise from the
ambiguity
inherent
language
linguistic
as well as the
of our
State
capabilities.
limits
v. Sample,
(1998)
487,
510,
215
2dWis.
676 conclusory too are beholder;14 and both words often pins making a its statute, on decision labels court appear result-oriented.15 may argued
¶ have that a court examine I history declaring ambiguity16 and that a an without analysis engаge in an of both the evidence court "must supports given interpretation as well as given interpretation."17 evidence that contradicts majority attempt opinion does not 65. The by "history" than or "extrinsic sources" other define history attempt mentioning legislative and does not history by legislative explain as an what it means extrinsic source.18 history, legislative Legislative especially
¶ 66. reports congressional record, has and the committee gotten years reputation in recent in federal circles a bad by legislative history be manufactured because legislation, opponents proponents and both something every position can be buttressed often history.19 legisla- legislative Nevertheless, federal 14 1312, Employees, Local Courthouse at 642 221 Wis. 2d n.8. 15 Byers, 263 (Abrahamson, C.J., 2d n.10 concurring). Knights Soc'y., Ins. WI 87, 45-46, Fox v. Catholic ¶¶ (Abrahamson, C.J., concur 665 N.W.2d
263 Wis. ring).
17 Id., C.J., (Abrahamson, concurring). 44¶ legislative history as "written defines One commentator See Dortz Kenneth R. legislation." to the pertaining materials Philosophies Justices Scalia bach, Legislative History: History by Wisconsin Breyer Legislative and the Use (1996). Courts, State L. 162 n.1 Marq. Rev. *37 19 supra note e.g., 18, 190; See, Dortzbach, Stephen at History Interpreting in Legislative On the Uses of Breyer, 677 history carefully tive is well understood and weighed help can a court understand a statute.20 Legislative history
¶ 67.
at the state level differs
legislative history.
thing,
from federal
For one
there is a
legislative history
lot less
in Wisconsin than at the
manufacturing
legislative history
federal level, and
of
perfected
а less well-known and less
skill here.
¶ 68.
I
write
alert the reader to the numerous
"history"
upon
past
forms of
this court has relied
in
statutory interpretation cases, with and
without
ambiguity,
remind
declaration of
and to
the reader that
"history"
legislative history
not all forms of
are
of
equal
determining
meaning
value in
of a statute.21
types
history
Some
are further removed from the
legislative process
My position
than others.
is that
history, including legislative history,
part
can
one
be
statutory interpretation.
in
the mix
Here is a
nonexhaustive list
various forms
"history"
helpful
that have been and will be
interpreting
majority opinion appears
statute.
Statutes,
845,
(1992);
65 S.
Mikva,
Cal. L. Rev.
845-46
Abner J.
Common,
Statutory Interpretation: Getting the Law to be Less
50
(1989).
979,
St. L.J.
Ohio
981
explains
using legislative
Justice Scalia
history
his
interpreting
contrary
statutes
approach
to his textualist
as
play
game
everybody
follows: "I
like
.
in a system
else...
I'm
which has
accepted
legislative history
rules
is used. You
my opinions,
read
I sin with
Judges
the rest of them."
(R.
Legislators:
Comity,
Toward Institutional
174-75
Katzmann
(Justice
1988)
discussion)
during
ed.
panel
Scalia's comments
(quoted
Easterbrook,
in Frank H.
What Does Legislative His
Us?,
(1991)).
tory
441,
Tell
L.
Chi.-Kent
442 n.4
Rev.
Employees,
1312,
See Courthouse
Local
1. adopts provisions appear in the session ten compiled but not in the statutes.22 Non- laws set statutory provisions oftеn forth statements intent, or legislative findings, purpose, or nonstatutory pro- These rules of construction.23 have force of law and aid the court visions interpretation of statutes.24 Statutory history. appears An historical 2. note after
in the Statutes each Wisconsin section, History history since tracing its 1970.25 in the volumes the Wisconsin notes current The from to date. period Statutes cover the 1971 volume, publishes separate Revisor Statutes Annotations, history which contains Wisconsin 22 of the in the annotated versions provisions appear These Statues Annotated. statutes. See West's Wisconsin 23 629; 105, 1; 77, § See, § 1995 Act e.g., 1989 Act Wis. 309, 4; Act 290, 17;§ § Act 1997 Wis. Act 1995 Wis. 1995 Wis. 113, § 191(8); 23. 188, § 1999 Wis. Act discourages use of such Legislative Bureau Reference a state- under circumstances. Indeed provisions except certain may be intent, findings not purpose, legislative ment of the chief approval in a draft without the included Bureau, Miller, Legislative Reference Stephen R. bureau. See (2003-04). § Drafting Bill Manual 7.11 Wisconsin Cannon, Bureau, Guide Legislative Peter Reference A. (1998). See, e.g., Chernetski Researching Legislation Wisconsin 68, Co., N.W.2d Mut. Ins. 183 Wis. Family v.Am. (Ct. State, 1994); 85 Wis. 2d McLeod v. App. (Ct. 1978). App.
N.W.2d
25Cannon, supra note 24. By analyzing changes
from 1848-1970.26 time, legislature has made over court intent.27 infer Prefatory (Analysis)
plain language analysis original an each mea- sure, to printed be with the measure when it is purpose analysis introduced."28 The is to clearly objectively describe, and in understand- language, able the substance and effect of a legislative proposal legislators so that are ad- equately legal advised about the effect of the proposal.29 Prefatory (Analysis) The is Note legislators appears distributed to all in and the jacket bill at the available LRB30and on micro- fiche at the Law Library.31 State A court should great care relying Prefatory use befóte on a Note (Analysis) changed the bill because be after Note prepared. the has been Notes are not 26 history Id. The also appear notes West's Wisconsin Statutes Annotated. 27 (examined See, Byers, 113, e.g., 263 2d 22-27 language changed by bill); original amendments to the Hughes, (tracked statute). 197 Wis. changes 2d at 982-83 to the 28 13.92(l)(b)2. (1) § Analysis required Wis. Stat. is for: all (2) drafts, except drafts, bill preliminary engrossed bills, en grossed joint resolutions, engrossed and resolutions when time (3) permits, joint affecting resolutions federal state or constitu (4) rules, joint tion or the affecting and resolutions house rules. 4.03(l)(a)l-4. Miller, 23, supra note
29 §4.03(2)(a). Miller, supra 23, note (608) LRB, To communicate with call 266-0341 or e-mail LRB_Reference@legis.state.wi.us. Library about the Information State Law on available
its http://www.wsll.state.wi.us. website: Courts for amendments. updated or
prepared history.32 useful relied on this have Materials. The Judicial Council Judicial It drafts rules created 1951.33 Council was The legislature. for the court and laws the text of appear *40 jurisdiction survey study organization, and methods of and of the state, operation both of all the courts of and administration others, of business and condition and the volume courts of record courts, accomplished results obtained. and the in the work said Receivе, judicial Collect, analyze publish compile, and statistics. any investigate suggestions from and its discretion consider justice and to make pertaining administration to the source concerning Keep the decisions of the advised recommendations. practice concern- relating procedure and therein and to the courts jurisdiction, organization, legislation affecting ing pending to the procedure practice courts. Recommend operation, and of the jurisdiction, operation changes organization, legislature any in the conducting the courts which can be the business of and methods of only by legislative put action. into effect of 1951. Ch. Laws 34 102.23, 345.315, 30.30, See, 19.97, §§ e.g., Wis. Stat. 752.31, 751.03, 755.17. Evidence, Rl, R2. See, 59 Wis. Rules e.g., Wisconsin
Courts have used the Notes to aid in interpreta- tion of a statute.36 generated by Materials Judicial beyond Council the Notes are available at the State Library, Law the State Historical Society, Legislative and the Reference Bureau and on web sites.37 Legislative Joint Council Materials. The Legislative Joint Council was created 1947.38 It legislators39 consists through functions study legislators committees that include public study members.40 The committees inves- tigate subject various request areas at the legislature Council, or the and offer their recom- mendations in bill form to the Council.41 The proposes Council legislation legislature.42 to the 36See, e.g., majority op., 35; Bodoh, State v. 226 Wis. 2d (1999) 718, 726, 595 N.W.2d (examining judicial council (West committee note to § 1987 S.B. Wis. Stat. Ann. 940.24 1996)). (index See http://wsll.state.wi.us/judcoun/judcouall.html collection). to State Library's Law The Judicial Council materi als at the State Library Law include a wealth of information. (overview See http://wsll.state.wi.us/judcoun/jcloverview.html Council). of Judicial (2001-02) 1947; Ch. Laws of Wis. Stat. 13.81 Council).
(originally Legislative named the 39The Legislative Joint Council consists of the leadership of both houses and 10 members selected the membership of both houses. study appointed by committees Legislative the Joint
Council legislators are made up of and citizens who are inter ested in or knowledgeable study about the topic. For more information, Legislative visit the Joint Council's website at http://www.legis.state.wi.us/lc/facts.htm. *41 41 Cannon, supra note 24.
42Id. legislation, Legisla- the Joint proposing
When typically explanatory *42 Society, the Wisconsin Historical and the His- Society may papers deposited torical also have legislators.47 individual Special Legislative 7. Records of Commit- legislature special tees. At times the creates study propose legislation. committees to These may published reports committees have and public inspection documents available for which statutory interpretation.48 this court has used in Drafting bill, resolution, 8. Bill Records. Each joint and resolution introduced since has its drafting drafting own record. A record contains materials, letters, all written and memoranda given by legislative drafting to or created attor- ney bill, resolution, in the process drafting subsequent Although drafting amendment.49 by-products drafting process records are designed legislative and are not to document intent, legislative the records indicatе in- tent, drafting records, and bill including the statements,50 impact fiscal have often been used Society's Visit the State Historical website at http://wisconsinhistory.org. Legislative Visit Council's website at http://www.legis.state.wi.us/lc/publications.htm. See 1997 Wis. (creating Study Act 283 454 the Criminal Penalties Commit- tee). The State of Wisconsin Study Criminal Penalties Commit- Report tee is available at http://www.doa.state.wi.us/docs_view 2.asp?docid=42. See, Jackson,
Courts have relied report. e.g., on this State v. 29, 22-24, 113, 872; 2004 WI 270 Wis. 2d ¶¶ 676 N.W.2d State Volk, 40-42, App v. 2002 WI 258 Wis. 2d ¶¶ 24. N.W.2d 49 Cannon, supra 24. note 50See, e.g., Byers, 2d
by courts.51 Bill drafting records are available on LRB, microfiche at the the State Library, Law Society Madison, the State Historical the Milwaukee Public Library and Marque- tte University Library Law in Milwaukee.52 The staff of the LRB prepares very also helpful *43 information bulletins that are available at the LRB.53 Legislative
9. Journals. publishes Each house journal
its provides own procedural a record legislative including votes, action roll call messages governor, from the and occasionally, other communications. Wis. Stat. 13.17. The journals organized are by journals date. can be found in the LRB library legis- collection for lative sessions since the period.54 territorial 10. Proceedings. Bulletin of The Bulletin of Pro
ceedings Legislature of the Wisconsin contains procedural proposals, histories all introduced subject index, and a listing of the by sections affected the session laws.55 The organized by Bulletin is bill number and is available in the LRB library collection.56 51See, Messer, e.g., WI 145, n.17, Hubbard v. 2003 267 (relied record); Wis. 2d drafting N.W.2d 676 on Byers, (examined drafting Wis. 2d 29¶ instructions to support interpretation). 52Cannon, supra note 24. Legislative Visit Reference Bureau's website:
http://www.legis.state.wi.us/lrb/pubs/infobull.htm 54Cannon, supra 24. note 55Id. early In years state, the Bulletin was called the printed
"Index" and appendix was as an to the Journal. Study 11. Committees. The Governor's Gover- particular on nor create committee subject to make recommendations and to draft proposed legislation necessary implement The LRB and the those recommendations.57 Society catalog pub- State Historical materials agencies, including reports lished state governors' task forces and committees.58 Courts reports determining have considered these legislative intent.59 Message. governor If the Governor's Veto bill, governor vetoes a must: bill, objections in together [R]eturn the with the writ- ing, originated. to the house in which the bill The house objections large origin upon shall enter the at journal proceed to reconsider the bill.60Wisconsin message courts have considered the veto when exam- ining meaning of a statute.61 *44 Interpreting 13. Cases the Statute. Courts have prior interpreting often referred to cases statute.
57 example study For an report, of Governor's committee see, e.g., Study Organization, on Citizens Committee Judicial (1973). Report Lucey to Governor Patrick
58Cannon, supra note 24.
59 upon Report Study The court relied of the Citizens C.M.B., Organization in Committee on Judicial In re 165 Wis. (1992). 703, 711, 2d 385 478 N.W.2d 10(2). V, § Art. Wis. Const. 61See, 1312, e.g., Employees, Courthouse Local 2dWis. 646; Comp. Patients Fund v. Fire & Marine at Wis. Co., St. Paul Ins. 537, 546, (1984); Paternity In re Wis. N.W.2d693 (Ct. 1990). 446, 460, of C.A.S., App. 2d 456 N.W.2d899 I with the agree ¶ approach Canadian Labour) In courts take. Ontario (Ministry v. Hamil- ton, [2002] 58 O.R.3d 18, the court of for appeal Ontario wrote as follows: approach
The modern statutory to interpretation calls on the court interpret a legislative provision in its total context. The court should consider and take into account all relevant and admissible legis- indicators of meaning. lative The interpretation court's should com- ply legislative text, with the promote legislative purpose, legislature's intent, reflect the produce just reasonable and meaning.... Supreme The Court repeatedly has approach affirmed this interpretation....
This approach is supported by Bapoo v. Co-Operators Co., General Ins. [1997] 36 O.R.3d where the court of appeal Ontario wrote as follows: interpretation court's should comply with the
legislative text, promote legislative purpose and produce a just reasonable and meaning. Professor Sul- livan described the modern approach in the following passage: only
"There is one interpretation, rule modern namely, obliged courts are meaning determine the legislation in context, its total having regard to the purpose legislation, the consequences of pro- posed interpretations, the presumptions special of interpretation, rules as well as admissible external words, aids. In other the courts must consider and take into account all relevant and admissible indicators of legislative meaning. taking After account, these into the court adopt must then an interpretation appropriate. An appropriate interpretation is one that *45 (a) justified can be in is, terms if plausibility, its that its (b) compliance legislative text; with efficacy, is, its (c) promotion its legislative purpose; accept- its 687 just." reasonable and is, outcome is ability, that omitted). (internal citations endorses this repeatedly Court of Canada The Supreme approach. It did so recently in R. v. Glandue, [1999] 1 it wrote: 688, 706, where S.C.R. construc- proper stated frequently court has
As this reading the flows from statutory provision tion of a and ordi- grammatical in their provision words of context, harmoniously in their entire nary sense and whole, purpose as a of the statute the scheme with Parliament. The statute, the intention of Parliament, and the intention purpose of the statute the basis of determined on are to be particular, regarding the sources admissible extrinsic intrinsic and of its enact- history and the context legislative Act's ment .... statutory interpre- that "proper view is My 71.
¶ view comprehensive that a court take tation requires intent."62 determining legislative toward on is not new. It is based This approach ¶ that the court stated 1871 This precedent. Wisconsin broader, more compre- of a rule is meaning part plain interpretation. view toward hensive court explained:
62 (Abrahamson, C.J., concur 113, 50 Byers, 2d 263 Wis. (Abrahamson, C.J., Peters, 475, 2d 34 ring). 263 Wis. See also Davison, 89, 145, 263 Wis. 2d 666 concurring); 2003 WI State v. Cole, 59, C.J., concurring); 262 (Abrahamson, 2003 WI 1 N.W.2d 700; Employees, Local 167, Courthouse 2d 663 N.W.2d Wis. 487, 641-51; Sample, v. 215 Wis. 2d 2d at State (1998) (Abrahamson, C.J., concurring); 573 N.W.2d (1986); Stoehr, 66, 77-82, 396 N.W.2d v. 134 Wis. State DILHR, 451, 456, 80 Wis. 2d County v. Milwaukee (1977). N.W.2d *46 is, [T]he true rule the for construction of statutes statute, every part look at the whole and and the apparent whole, intention derived from the to the matter, subject consequences, to the effects and and to law, thus, spirit reason and of the and to ascertain the true legislature, though meaning of the mean- ing so ascertained sometimes conflict with the literal sense words.63 of the comprehensive approach,
Without this this court risks usurping legislative substituting judg- role and its legislature's only through for ment intent. It complete analysis weighing of available materials meaning that we can ascertain the aof statute and legislative effectuate intent. above, 73. For the reasons set I forth write
separately interpretation. to discuss {concurring). BRADLEY, 74. ANN I WALSH J. majority agree applicable with the that the standards supervisory for agree have I writ not been established. also attorney's
that the district actions constituted a 968.02(3). However, "refusal" under Wis. I Stat. write separately competing because discussions of statutory interpretation. Although I both commend majority I endeavors, concurrence their ulti- mately join neither. (1871). Harrington, at 59 Notes to Bills. Wiscon- 13.92(l)(b)2 Stat. provides Legis- sin that the (LRB) "prepare lative Reference Bureau shall
Notes
notes with Council Judicial Statutes,34 and laws in the Wisconsin the rules legislature ordi- the court nor but neither part аs statute narily adopts the Notes rule.35 O'Connell, 76, 57, 236 Wis. See, 2000 WI e.g., Seider v. DWD, 271, 2d 659; 227 Wis. McDonough v. 612 N.W.2d Chernetski, (1999); 2d at 76 n.3. 182 Wis. 595 N.W.2d Miller, Notes, note Prefatory supra see citing For other cases §4.03(2)(f). judicial council legislature created procedure, practice study pleading, and the rules of [o]bserve and will, changes in the supreme as to which court advise speedy simplify procedure promote a judgment, council's litigation upon Make a continuous its merits. determination of
tive Council includes notes are in the bill. These notes often available rely upon Statutes.43 Courts Wisconsin explanatory examining Council's notes when history.44 Leg- produced Materials the Joint committees, in islative Council and its addition Notes, including meetings minutes testimony, are available at the summaries Council, Leg- Legislative office of the Joint Bureau, islative Reference and the State Histori- Society cal The staff of the Joint Madison. Legislative prepares Council also information bulletins that are available at the LRB.45 Legislative In Committee Records. addition report Leg- to the committees that to the Joint Council, legislative islative various committees hearings propose legislation. hold The com- summary keep mittees do not verbatim or testimony records of committee deliberations or presented. Legislative Council collects the to these committees and materials submitted keeps the in its office in Madison.46 materials deposited at Committee materials also be 43Id. See, 34.01, 67.10, 84.30, 107.35, 112.08, e.g., §§ Stat. Wis. 168.04, 182.70, 340.01, 611.51. Comm'n, See, e.g., Wagner County v. Milwaukee Election 38-39, 709, 666 N.W.2d816. 2003 WI ¶¶ Legislative Bureau's website at Visit Reference http://www.legis.state.wi.us/lrb/pubs/infobull.htm Council, St., Legislative 1 E. Main Suite Joint (608) Madison, WI 266-1304.