*1 might tendency ruling have hearing such because of in the matter. subsequent determinations to influence find so say did not the evidence that we it to Suffice necessity for re- inadequate woefully as to foreclose the hearing. appeals is
By the court of decision of the Court. —The affirmed. J., part. no took
Beilfuss, C. Petitioner, McDonald, ex rel. David M. State Douglas County, II, Branch Circuit Court Douglas Moodie, presiding; Keith Honorable S. Douglas attorney; Peterson, county district Attorney office, Respon- Wisconsin General’s dents-Petitioners.
Supreme Court Argued February 9, No. 1981. 79-1927-W. —Decided March 1981.
(Also reported 462.) in 302 N.W.2d *2 respondents-petitioners argued For the the cause was Klos, by attorney general, Michael R. assistant (in court) whom on the Bronson. La brief C. Follette, general. attorney (in
For David McDonald there M. was a brief court appeals) argument by Yovovich, and oral Michael public assistant state defender. CALLOW,
WILLIAM J. This G. is a of a review appeals granting supervisory decision of court of prohibiting Douglas county, writ circuit court for Douglas II, Moodie, Douglas Branch county Hon. S. general attorney, attorney district and the state from conducting preliminary prosecution examination 346.67, of a violation of Stats.1 The court of provides: Sec. Duty upon striking person occupied “346.67 or attended or operator any (1) vehicle. vehicle involved in an accident resulting injury any person damage to or death of or in to a person vehicle which is driven attended shall immedi- ately stop such vehicle at the scene the accident or as close possible thereto as but shall then forthwith return to and in every event shall remain at the scene of the accident until he has requirements: following fulfilled the sec. 346.67 was concluded a violation of because felony, preliminary no examina- misdemeanor and not a Douglas ex McDonald tion should held. State rel. N.W,2d (Ct. App. County Ct., Cir. 1980). 346.67 when hold that a violation of sec. We alleged felony, and we death or constitutes a reverse. complaint filed
This action arises from a criminal Douglas attorney county on the district November charging “felonious- David M. McDonald with ly” failing stop to the scene vehicle and return his involving injury person, in violation of an accident preliminary Prior to a of sec. Stats. scheduled examination, judge his belief advised McDonald of pre- charge was a and rescheduled *3 provide opportun- liminary McDonald an examination to extraordinary ity to relief from the court of seek with in the form of a determination whether the offense “(a) give registration name, num- He his shall address the person driving the or to ber the vehicle he to the struck is person operator occupant attending or or collided vehicle with; and opera- upon request available, his “(b) shall, if exhibit He occupant operator person the or struck or to tor’s license to person attending any with; and vehicle collided of or injured any person accident in such “(c) render He shall making carrying, including or the assistance, reasonable physician, person carrying, to a arrangements of such for the ap- surgical if it treatment is surgeon hospital or for medical or carrying necessary re- or if such parent treatment is that such person.” quested injured provided sec. 346.- violating penalties are section 74(5), as follows: “(5) person violating any provision be Any of s. 346.67 imprisoned than months more 6 fined not more than $200 injury person to a not involve death or if the accident did both $5,000 than or im- than nor more fined not less $5 days prisoned if the nor more than one than 10 not less person.” death or accident involved charged which he was was a or misdemeanor. Fol- lowing the order appeals granting of the court of a writ (cid:127) prohibiting the proceeding circuit court from on the charge felony, respondents ás a petitioned this court for a granting review of the order Subsequent the writ. filing petition to the review, pleaded McDonald guilty granted to the offense and was fined. We petition to July 9, 1980, August review on 20, and on 1980, McDonald moved to dismiss the case as moot. That motion was denied.
I. MOOTNESS
plea
payment
fine,
guilty,
of a
and con-
McDonald’s
discharge
sequent
raises the issue of mootness. The at-
torney general, representing
petitioners
on this re-
individually
view,
that as to McDonald
concedes
controversy
respect
is moot
because
346.67, Stats.,
his violation of sec.
has been terminated.
which,
sought
A case is moot
when a determination
rendered,
practical
if
could have no
effect
a then-
existing controversy.
H.,
In Matter
K.
98 Wis.2d
(1980) ; Family Savings
Loan
573 Enterprises America, v. Racine J-T similar instances. Carlyle Inc., 691, 701, (1974); 221 869 64 N.W.2d Wis.2d (1960). Karns, great we involved to be this case believe the addition, public and, importance that there is substan frequency tial that it will recur with sufficient likelihood our consideration. to warrant MISDEMEANOR
II. FELONY OR upon operator Stats., imposes of a Sec. duty stop at in an motor vehicle involved accident the accident, provide return identifica- or to the scene tion, person in- and render reasonable assistance to violating jured for accident. 346.74(5). 346.67 is found in sec. Pursuant to that sec- tion, injury if of a the accident does not involve death or person, a violator fined more than not $200 imprisoned If for not more than six months. the accident injury person, in death to a violator results days $5,000 imprisoned one be fined from ten $5 year. argues in this
The state the violation involved case, person, is, involving is one death or to a period the maximum of incarceration because pursuant 346.74(5), conviction, designated. place with no of confinement Sec. 939.60,2 provides punishable that a is a crime imprisonment prison; in a state and sec. Wisconsin 973.02,3 provides that, imprisonment when no 939.60, Stats., provides: Sec. Felony punishable “939.60 misdemeanor A defined. crime by imprisonment felony. Every prisons in the Wisconsin state is a other crime is a misdemeanor.” 973.02, Stats., provides: Sec. imprisonment “973.02 Place of expressed. when none When a statute authorizes its violation but does
prescribed, may year a sentence of one tobe the state prisons county jail. that, or to the The state concludes penalty prescribed since the for the instant violation one-year imprisonment, could abe term of and since a one-year prison, sentence is be to state the offense “punishable” by imprisonment prison a state thus a under sec. 939.60. responds properly
McDonald that the issue de- solely by termined reference to 939.60 and predates adoption because the offense involved predecessor Rather, argues 973.02. he by the issue is controlled this court’s decision Gaynon ex rel. Krueger, 31 Wis.2d 143 N.W.2d (1966). we held where an offense predated the 1945 revision the criminal code which Stats, (later (2), created sec. 353.27 959.044 and now 973.02), its classification as or misdemeanor must be determined resort intent at holding time of its creation. This was based legislation pur- view was not for the “[sec. 973.02] pose changing grades caption of crimes but was as its designate imprisonment indicates the ‘Place when expressed’ creating none in the section It crime. solely deals of felonies retroactively and misdemeanors and should not used change whiplash grade as a of an refer- offense Applying principles ence to sec. 939.60.” Id. at 618. argues Gaynon, forth in set McDonald that an examina- legislative history tion of the 346.67 reveals legislative intent that the hit and run offense be classi- prescribe .place 1) of imprisonment, a sentence of less than year county jail, 2) one shall be to the more sentence of than prisons one shall be to the Wisconsin state the minimum year, 3) under the indeterminate sentence law shall be one year may pris- sentence be to either the Wisconsin state county jail. any proper ons or the inBut case sentence and com- department mitment be to the nevertheless house provided by correction or other institution as law.” *6 that this intent should be and fied as a misdemeanor and recognized despite presence 939.60 the 973.02. Gaynon, state relies
In the an effort to circumvent 381, State, upon 215 N.W.2d Zastrow v. 62 Wis.2d Asfoor, (1974), and 75 Wis.2d State v. an of- (1977), proposition even where for the code, criminal predates the 1945 revision the
fense substantively creating is if the section the offense changed subsequent revision, permissible to it is to that legislature is apply presumption that the the normal enacting of the statutes when aware of other sections applica- Arguing legislation. penalty provisions the substantively 346.67, Stats., a sec. were ble to violation of changed permissible to it is the state concludes legislature revising presume the that in that section predecessor aware of secs. 939.60 the apply. that those sections reading agree parties a
Both that under strict 346.67, Stats., its applicable statutes felony in- section, 346.74(5), a the create where accident injury. personal question then The volves death or Gaynon progeny and its under the rationale of whether reading not, permissible and, the a if whether strict intent of as reflected classify history 346.74(5) of secs. 346.67 and instant violation as or misdemeanor. a In we confronted with the task of classi were fying 71.11(42), 1965,4 either as violation of sec. Stats. or misdemeanor. offered There the state 1965, provides: 71.11(42), Sec. Stats. provisions; penalties. Administrative . . . “71.11 pile “(42) Any person, return; other Same; failure fraud. corporation, or than refuses to make return at who fails specified time in each or or shall render a false hereinbefore fraudulent return shall conviction be fined not to exceed $500, imprisoned year, both, or exceed one at court, together prosecution.” discretion of the with the cost of reading
same literal of the statutes in order to find the felony. majority argument offense a rejected (now 973.02), because of its belief that sec. 959.044 classifying grades was not enacted as an aid to of crimes. Turning legislative history 71.11(42), to the of sec. court initially observed that when it was enacted the prevailing expressly rule was that which did not crimes designate grade ordinarily of confinement addition, created expressed the court misdemeanors. carrying penalties the view that crimes periods year” of “not more than one or of like effect normally were Looking considered at misdemeanors. dealing other sections of tax code similar con *7 by express designation grade duct which were of the misdemeanors, the of confinement intended to be majority 71.11(42) the concluded that violation of a sec. Finally, was intended to abe misdemeanor.5 the court argument rejected because the section re was 1947, subsequent in enacted to the enactment of the predecessor 973.02, to the classification statutes of sec. apply. Sowing the criminal code should the seed to later germinate Zastrow, pointed in the court out that purpose of the reenactment of that was not to section change only of the the substance offense but to effectu streamlining statutes, ate the of the and thus the 1947 having revision could be viewed as been done with statutory reference to other substantive sections to con felony. had vert what been misdemeanor into a Gaynon, Three members of this court dissented in ex- pressing opinion question in statutes were unambiguous plain susceptible and were not interpretation. Citing City Town Madison other v. Madison, (1955), 249 Wis. presumed for the rule statutes are to be enacted with expressly designat amended This section was and its violation felony by Chapter 314, ed a Laws 1969. existing laws, the knowledge reference full with determining proper method of opined that the dissenters to the grade in resort offense was code, and that criminal in the classification statutes felony. clearly a under this method the offense was again rejected applica- literal Zastrow the court it was able to but tion of 939.60 and hold exception in employ the foreshadowed involving money fraud sum of between that welfare statutory penalty, felony. found is a $100 $500 are to the one we in similar Stats. was dealing provided a term in that it this case year. stated: of confinement not to exceed one We 49.12, Stats., were penalties provided “The presumed to changed considerably in 1957 and must be light provisions of the Crim- enacted in have been ‘place imprisonment’ There- statute. inal Code and the agree position of the state that fore, we with the more compel that a of ‘not the conclusion statutes felony.” year’ at 387. than one creates of issue The most recent consideration this sort supra. applied post Asfoor, There we technique hold that a viola criminal code amendment felony. 940.24(1), Dis tion of sec. Stats. cussing to the the nature and effect of the amendments question, statute in we said: *8 legislature “Presumably that no was aware when
place expressed and of the sentence year, imprisoned in either was for the violator could be prison county jail. Again, presumably, state legislature punishable that which was aware crime (not punished) by imprisonment prison was in the state felony.” 75 at Wis.2d 439. Our examination of these cases leads us seriously post the rationale of and the criminal 578 exception employed
code amendment in Zastrow and recognize This court continues to the funda Asfoor. legislature, enacting proposition mental that the stat utes, knowledge presumed to do so with full aware existing of Mack Joint ness statutes. v. School District 3, 489, ; (1979) 92 No. Wis.2d 285 604 N.W.2d Klingler Schilling Baird, ex 460, 468, v. rel. & 56 Wis.2d ; (1972) City Town Madison v. Madi N.W.2d of son, supra. presumed If the can be to have prede been aware of the existence of 973.02 its it cessors when enacted or amended certain statutes deal ing offenses, assuredly criminal most it must be presumed many existing have been aware carrying statutes sentences of with no specified originally confinement when it enacted sec. predecessor Chapter to sec. as pure suggest sophistry 1945. It is Laws presumed awareness exists in the one other, per situation but not in the and we decline to petuate embracing a ratio decidendi that notion. argued by dissenting Currie,
As was
Chief Justice
Gaynon, concerning
there,
the statutes at issue
the stat
directly in
(secs. 346.67,
utes involved
this review
346.74
(5), 939.60,
973.02)
unambiguous
are clear and
any interpretation
thus
no
except
leave
room for
plain meaning
which can be derived from the
Kearney
Corp. Dept.
statutes themselves.
Trecker
&
Revenue,
746, 753,
;
(1979)
Not is this method of compelled by al- legiance principles to basic statutory construction, but it is to be favored for other reasons as A well. review alarming the current statutes reveals an number of *9 by imprisonment for punished which be offenses place of confinement.6 specifying a year without in each latent “felony or misdemeanor” the morass to enter trial courts force these would Zastrow, Gaynon, history legislative under Asfoor post amendment a whether of cases to see line if or, awareness presumption a activated grade without of the offense not, intended to discover confinement and to the classification reference so, nor required to be do not Trial courts should statutes. conclu- possibility of inconsistent the attendant should addition, be risked. one offense sions relative to questions clarity certainty these with which and charged with to the benefit those be resolved will inure large, are all whom public at as the the offense as well whether statutes entitled to know examination an or a misdemeanor. offense is holding case does Despite foregoing, in this our Gaynon. be- expressly We require that we overrule legislative history and its accom- of sec. 346.67 lieve the 346.74(5), a clear penalty section, reveal panying failing of an accident return to the scene intent that felony, and involving person death reaching that result.7 is not an thus obstacle 79.17(6), example: 49.12(1), 72.86(6), See, 47.07(6), 101.94(8) (b), 139.25(2), 100.03(2) (b), 100.26(6), 161.41 134.05, 161.42(2), (d), 161.41(lm) 161.41(2) (2r) (a), (1) (d), (d), 161.41 176.053(2), 344.48(2), 446.07, 765.30(2), 765.30(1), Stats. 1979-80. The court of concluded that the violation involved herein intended be a misdemeanor. We disagree. The “hit run” and offense was as misde introduced by Chapter 600, 1911, creating 1636-54, meanor Laws of Stats. Chapter 576, changed Laws of the offense to a provided of a fine and from three months up years. section, to two That later renumbered sec. 4416a captioned injured person,” then “Motorist to assist stop offense was limited to a failure to where the acci- *10 summary, of hold that a violation we involving person injury constitutes death or to a reading felony. together
a reach that We result pro- 346.67, 346.74(5), 939.60, 973.02, Stats., which and (1) punishable by an confinement one vide offense specified; (2) a decla- with no of confinement specify statutory a ration when offense does a injury Chapter person. dent repealed to Laws of resulted in a captioned “Accident sec. 343.181 and created sec. highways." (1) section, on “ACCI- Subsection entitled INJURIES,” DENTS DEATH OR PERSONAL im- INVOLVING duty posed stop on motorists or return to the under a scene circumstances, provided penalty it of a or im- those and a fine prisonment year. days nor for not less than more than one ten express designation removed, as this offense a period and the maximum was reduced one incarceration year. thought appeals change significant, The court of However, it is this that McDonald relies as well. sec. 85.- 141(2) a introduced new offense under the title “ACCIDENT IN- VOLVING TO DAMAGE VEHICLE” which been had not con- imposed tained the forerunner sections. This subsection duty stop only property a or damage return where in- volved, and expressly designated the to do failure so was a mis- separate demeanor. The involving treatment of accidents death personal injuries involving only property those damage has through subsequent been carried amendments, including the stat- utes with which this review is concerned. While sec. 346.67 com- stop mands the motorist to involving at personal death, accidents injury, property damage, 346.74(5), pro- the section, punishments vides depending upon different the circumstances persuaded the accident. We are not removing express felony designation formerly from what only had been a death or personal injury legislature downgrade statute the intended felony' offense from to a sep- misdemeanor. The creation of a relating arate property offense damage, expressly designated misdemeanor, suggests opposite: to us stop failure to at the scene of an involving personal injuries accident or death is a far more deserving' serious penalties. matter severer To have expressly designated only property damage offense and not personal involving or death misdemeanor, when easily both, it so could have done must have in- only that tended section to create misdemeanor. confinement, year may place of a sentence of one be to county jail prisons; (3) either state or the punishable by classification as felonies of all crimes prisons. inquiry in the state No further needed.
By the Court. —The court decision reversed. J., part. took no
Beilfuss, C. (concurring). SHIRLEY S. ABRAHAMSON, J. A *11 computer pro- search shows that more than 15 statutes punished by imprisonment an vide that offense be year specifying place without of confinement. Gaynon-Zastrow-Asfoor Each statute raises (now) legislative intent, namely, McDonald issue of did legislature punished intend the to be' offense as a Though “question or misdemeanor. the court [s] seriously” Gaynon decision, “expressly it does not legislative overrule” it. The court continues to look to history legislature to determine whether the intended the offense to be a or misdemeanor. “alarming (supra,
Whether the number of offenses” p. 578) present spawn which will an alarm- ing Gaynon-Zastrow-Asfoor- number of cases of the species prospect remains to be seen. The McDonald not an Determining legislative attractive one. intent judicial court, decision of the trial the court of supreme then the expensive court is an and time- consuming procedure. simpler, speedier cheaper A way to determine the intent as to these 15 by legislative so offenses is legislature decision. The clearly should legislature state its intent. The can com- pile a providing list of all statutes that the offense punished by imprisonment for one speci- without fying confinement; legislature can then punished decide which offenses are to be as felonies and misdemeanors; can then and the which as accordingly. respectfully I recom- amend the statutes legislature. to the this solution mend Plaintiff, Wisconsin, State foreign Casualty Company, Farm Fire & Defendant, corporation, Gregory Gillmeister, Carpet Service, Custom d/b/a
Defendant-Respondent, Company, Carpet Robert National W. Johnson, d/b/a Third-Party Plaintiff-Appellant, Defendant and Associates, Bosshard, John & Sundet Bosshard, d/b/a Appellant-Respondent, Lowy Rug Mills, Carpet and Diamond & Distributors
Inc., Third-Party Defendants-Respondents.
Supreme Court Argued January 5, No. March 1981. Decided 1981. 79-1492. (Also reported 827.) in 302 N.W.2d