State v. MacArthurState v. MacArthur
- Reporters:
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- Before:
- Ziegler
Lead Opinion
¶ 1. This case is before the court on certification by the court of appeals, pursuant to
¶ 2. This case presents the following issues: First, should the statute of limitations that governs the charges against MacArthur be the version of
I. BACKGROUND
¶ 3. MacArthur allegedly sexually abused three children at the former St. Joseph‘s Hospital in Beaver Dam, Wisconsin. The State asserts that the incidents occurred between March 1965 and June 1972 when MacArthur was a chaplain at the hospital. On January 18, 2006, MacArthur was charged with a number of crimes for those alleged incidents. Count one: Sexual intercourse with a child contrary to
¶ 4. On February 24, 2006, MacArthur moved the circuit court to dismiss all counts. In short, MacArthur argued that the six-year statute of limitations,
¶ 5. On May 25, 2006, the circuit court denied MacArthur‘s motion to dismiss. It concluded that the age limitations of subsection (2)(c) of
¶ 6. The circuit court scheduled a pretrial hearing on the statute of limitations defense. The court reasoned that the State would need to satisfy the court, by a preponderance of the evidence, that MaeArthur was not a resident of the state of Wisconsin during the relevant time. However, the circuit court stated that if the defense were to raise the issue at trial, it “believes” the State‘s burden would elevate to beyond a reasonable doubt.
¶ 7. On June 8, 2006, MaeArthur petitioned the court of appeals for leave to appeal the circuit court‘s non-final order.6 The State cross-appealed the circuit court‘s order that required the State to prove beyond a reasonable doubt at trial that the public resident tolling provision was satisfied.7 The court of appeals granted that petition on July 12, 2006, and subsequently certified the case to this court. Specifically, three issues were certified: First, “whether the statute of limitations for child sexual assault in effect when this crime was charged,
II. STANDARD OF REVIEW
¶ 8. This case involves a determination of the appropriate statute of limitations as well as the interpretation and application of Wisconsin Statutes. Hamilton v. Hamilton, 2003 WI 50, ¶ 14, 261 Wis. 2d 458, 661 N.W.2d 832. While these matters present questions of law that we review de novo, we benefit from the analyses of the lower courts. Id.
¶ 9. “[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect.” State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110. This court begins statutory interpretation with the language of a statute. Id., ¶ 45. If the meaning of the statute is plain, we ordinarily stop the inquiry and give the language its “common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.” Id. Context and structure of a statute are important to the meaning of the statute. Id., ¶ 46. “Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.” Id.
¶ 10. Between 1965 and 1972,
(1) Except as provided .. ., prosecution for a felony must be commenced within 6 years ... after the commission thereof. ...
(2) Notwithstanding that the time limitation under sub. (1) has expired:
(a) A prosecution for murder may be commenced at any time;
(b) A prosecution for theft against one who obtained possession of the property lawfully and subsequently misappropriated it may be commenced within one year after discovery of the loss by the aggrieved party, but in no case shall this provision extend the time limitation in sub. (1) by more than 5 years.
(3) In computing the time limited by this section, the time during which the actor was not publicly a resident within this state . .. shall not be included. . . .
Simply stated, under the 1965 through 1972 statutes, charges need to be filed within six years of the alleged felony unless the actor was not a public resident within this state. If the actor was not a public resident within the state, the limitations period is tolled for that time period.
¶ 11. In 1987, subsection (2)(c) was added to
A prosecution for violation of s. 948.02, 948.03, 948.04, 948.05, 948.06 or 948.08 may be commenced within the time period specified in sub. (1) or by the time the victim reaches the age of 21 years, whichever is later.
1987 Wis. Act 332, § 65 states: “Initial applicability. This act applies to offenses occurring on or after the effective date of this Section, but does not preclude the counting of other violations as prior violations for sentencing a person.” The effective date was July 1, 1989. 1987 Wis. Act 332, § 66a.
¶ 12. In 1993, subsection (2)(c) was amended in order to increase the age a victim might attain before a prosecution would be barred. 1993 Wis. Act 219, § 6. Subsection (2)(c) then provided:
A prosecution for violation of s. 948.02, 948.03, 948.04, 948.05, 948.06, 948.07 or 948.08 shall be commenced before the victim reaches age 26 years, or be barred.
1993 Wis. Act 219, § 7 states: “Initial applicability. (1) The treatment of
A prosecution for violation of s. 948.02, 948.025, 948.03(2)(a), 948.05, 948.06, 948.07(1), (2), (3) or (4), 948.08 or 948.095 shall be commenced before the victim reaches the age of 31 years or be barred.
In 2003, subsection (2)(c) was again amended to increase the victim‘s age. 2003 Wis. Act 279, § 9. It read:
A prosecution for violation of s. 948.02, 948.025, 948.03(2)(a), 948.05, 948.06, 948.07(1), (2), (3), or (4), 948.08, or 948.095 shall be commenced before the victim reaches the age of 45 years or be barred, except as provided in sub. (2d)(c).
¶ 14. Finally, in 2005, any restriction on a victim‘s age was removed if the defendant was charged with
A. Applicable version of
¶ 15. MacArthur argues that the 2005-06 version of
¶ 16. The State, on the other hand, citing to State v. Hamilton,10 argues that when a statute of limitations is replaced or amended, a cause of action that has accrued11 prior to the effective date of the new statute or amendment is governed by the prior statute unless the legislature specifically states otherwise. Specifically, it asserts that in enacting subsection (2)(c), the legislature specified that the section only applied to offenses that occurred on or after the effective date. It further asserts that the legislature specifically included chapter 948, but it did not so reference and include chapter 944. Thus, it argues that subsection (2)(c) does not apply.
¶ 17. We conclude that the 1965-1972 version of
¶ 18. Wisconsin Stat. §§ 990.06 and 991.0712 instruct that when a limitation period has been repealed and the repealing act provides for a new limitation period, “such latter limitation or period shall apply only to such rights or remedies as shall accrue subsequently to the time when the repealing act shall take effect” and the repealed act shall continue in force and be operative unless the repealing act specifically provides otherwise.
¶ 19. Applying
¶ 20. MacArthur argues that subsection (2) (c) of the 2005-06 statutes applies to his
¶ 21. First, absent clear direction that the legislature in effect “changed its mind” from 1987 to 1993 with regard to the applicability of subsection (2)(c), we will not construe such a change. In 1987, the legislature specifically stated that subsection (2) (c) only applied to those offenses occurring on or after July 1, 1989. The language in the subsequent amendments, which stated these amendments apply to offenses not yet barred, was meant to apply to offenses that subsection (2) (c) had not already barred.
¶ 22. We find nothing that indicates the legislature meant to change the initial applicability of subsection (2)(c) as it was articulated in 1987. Neither the text of the amended statutes, nor the text in the Laws of Wisconsin, nor the drafting records supports such a conclusion. In 1987, subsection (2)(c) was to apply prospectively, and this court will not presume that the 1993 amendment or subsequent amendments were intended to trump the legislature‘s 1987 directive without the legislature so specifically stating. We interpret the legislature‘s post-1987 directives to apply subsection (2)(c) to claims not yet barred to mean that
¶ 23. Second, MacArthur relies on State v. Haines, 2003 WI 39, 261 Wis. 2d 139, 661 N.W.2d 72, to support his argument, but Haines lends support to our conclusion rather than supporting MacArthur‘s argument. Additionally, it provides an example of how
¶ 24. Haines is not analogous to MacArthur‘s situation. In fact, it highlights critical factors that must be considered when determining how to apply
¶ 25. Third,
A prosecution for violation of s. 948.02, 948.03, 948.04, 948.05, 948.06 or 948.08 may be commenced within the time period specified in sub. (1) or by the time the victim reaches the age of 21 years, whichever is later.
¶ 26. In summary, by its plain language, no version of subsection (2)(c) applies to the chapter 944 charges from 1965-1972. The 1987 version of
¶ 27. MacArthur, however, argues that even though
¶ 28. In 1975, the legislature “repealed”
¶ 29. Nonetheless, MacArthur argues that the term “repeal” is ambiguous and therefore we should look to the legislative history. We reject the argument that the word “repeal” is ambiguous. See Milwaukee County v. Schmidt, 38 Wis. 2d 131, 136-37, 156 N.W.2d 493 (1968) (stating “[o]f course [the legislature] intended the repeal. It expressly said it was repealing” and “a clear and plain declaration in the enacting clause that a statute is repealed must be given effect according to its terms“).
¶ 30. Furthermore, legislative history does not advance MacArthur‘s argument. For example, MacArthur argues that the legislative history shows that a private attorney drafted the legislation that repealed
¶ 31. Statutory interpretation would be chaotic if we cast aside a word such as “repeal” and assumed the legislature did not intend to use that word because it did not change that word from the original draft. We cannot assume that the legislature did not carefully consider its wording. MacArthur‘s argument is contrary to well respected principles of statutory interpretation.
¶ 32. Certainly, if the legislature intended chapter 948 to include offenses under the repealed chapter 944, it could specifically state such a directive. It did not. Compare
¶ 33. MacArthur argues that if the chapter 944 (1965-72) offenses that he allegedly committed “were so thoroughly repealed by the 1975 legislature that they do not constructively survive in the present
Actions pending not defeated by repeal of statute.
The repeal of a statute .... And criminal prosecutions and actions at law or in equity founded upon such repealedstatute, whether instituted before or after the repeal thereof, shall not he defeated or impaired by such repeal but shall, notwithstanding such repeal, proceed to judgment in the same manner and to the like purpose and effect as if the repealed statute continued in full force to the time of final judgment thereon, unless the offenses, penalties, forfeitures or rights of action on which such prosecutions or actions shall be founded shall be specially and expressly remitted, abrogated or done away with by such repealing statute.
¶ 34. MacArthur‘s argument, however, eviscerates
¶ 35. Further support that chapter 948 does not constructively include the relevant chapter 944 crimes arises when we consider that the elements of
¶ 36. For example,
¶ 37. Chapter 948 offenses simply do not contain the same elements listed in the previous paragraph. In 1987 when chapter 948 was created, the elements for sexual assault of a child were as follows:, (1) sexual intercourse or sexual contact; (2) with a victim who had not attained the age of 13 to constitute first degree sexual assault or a victim who had not attained the age of 16 to constitute second degree sexual
¶ 38. Sexual assault of a child pursuant to
¶ 39. MacArthur asserts that In re Detention of Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163, supports his argument that chapter 944 offenses are constructively included in Wis. Stat. 939.74(2)(c). MacArthur argues that because the court of appeals, in Pharm, concluded that a person convicted under
(a) Any crime specified in s. 940.225(1) or (2), 948.02(1) or (2), 948.025, 948.06 or 948.07.
(b) Any crime specified in s. 940.01, 940.02, 940.05, 940.06, 940.19(4) or (5), 940.195(4) or (5), 940.30, 940.305, 940.31 or 943.10 that is determined, in a proceeding under s. 980.05(3)(b), to have been sexually motivated.
(c) Any solicitation, conspiracy or attempt to commit a crime under par. (a) or (b).
¶ 40. MacArthur‘s argument that chapter 944 is “constructively included” fails to acknowledge Pharrris discussion of
¶ 41. In addition, the definition of a “sexually violent offense” provided in
¶ 42. Even if we concluded that
¶ 43. To satisfy the directives of
¶ 44. Although MacArthur failed to argue the following to the courts below, he now asserts that the prosecution against him is barred because all victims were greater than 26 years of age on April 22, 1994, which was the effective date of the amended subsection (2)(c) that changed the maximum age from 21 years to 26 years. However, MacArthur‘s argument fails for the same reasons it fails with respect to the 2006 provision. This is a statute of limitations not a statute of repose. The tolling provision halted the running of
¶ 45. Lastly, MacArthur argues that even if subsection (2)(c) does not prohibit the prosecution, the due process clause bars MacArthur‘s prosecution. We reject this argument because to constitute a due process violation, MacArthur must make two showings: (1) actual prejudice as a result of delay; and (2) the delay arose out of an improper purpose, which would give the State a tactical advantage over the defendant. State v. Dabney, 2003 WI App 108, ¶ 30, 264 Wis. 2d 843, 663 N.W.2d 366. MacArthur acknowledges that he cannot satisfy his burden and show that the State delayed the prosecution for improper reasons. Thus, his argument fails.
¶ 46. No version of
B. Tolling provision
¶ 47. This court must now address whether the judge or the jury decides questions under the tolling provision in
¶ 48. MacArthur argues that at a pretrial proceeding, the circuit court should decide whether the State‘s evidence on tolling is strong enough to convince a jury beyond a reasonable doubt that the defendant was no longer a public resident in Wisconsin while the statute of limitations was still running. MacArthur further argues that if the circuit court concludes that the State has met its burden prior to trial, the case may proceed to trial where the jury should be given a special verdict question on the public resident tolling provision. The State, on the other hand, encourages this court to adopt the procedure applied by federal courts to the analogous tolling provision in
¶ 49. “While the trier of fact must be convinced beyond a reasonable doubt that the defendant‘s crime was committed within the applicable statute of limitations, it is for the [circuit] court to determine by a preponderance of the evidence whether certain facts (e.g., the defendant‘s [status as a public resident within this state]) have affected what the time limit is.” 5 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 18.5(a), 189 (3d ed. 2007) (citing United States v. Salmonese, 352 F.3d 608 (2d Cir. 2003); United States v. Florez, 447 F.3d 145 (2d Cir. 2006); United States v. Greever, 134 F.3d 777 (6th Cir. 1998); United States v. Marshall, 856 F.2d 896 (7th Cir. 1988); United States v. Gonsalves, 675 F.2d 1050 (9th Cir. 1982).
¶ 50. Our approach to tolling is guided by United States v. Florez, a Second Circuit Court of Appeals opinion that articulated the requisite burden of proof and standard of review for the federal tolling provision. Florez, 447 F.3d at 149-50. In Florez, the following protocol was set forth: After the defendant makes a statute of limitations challenge, the State bears the burden of showing, at a pretrial proceeding, that
¶ 51. This approach is supported for a number of reasons. Under this approach, the issue is then decided prior to trial, which prevents an untimely prosecution. Moreover, it allows the State the opportunity to appeal the court‘s decision on this jurisdictional issue. As a practical matter, this is an issue which is typically known and addressed early on in litigation. Furthermore, the fact that a defendant was not a public resident for some period of time is not determinative of guilt and not an element of the crime charged. Rather, it is a fact that determines whether the law tolls a statute of limitations. Therefore, the State need not prove a defendant‘s status as a public resident beyond a reasonable doubt. Finally, compliance with a
¶ 52. On appellate review, a circuit court‘s tolling decision under
IV CONCLUSION
¶ 53. Accordingly, we affirm, and the cause is remanded for proceedings consistent with this opinion. We conclude, as did the circuit court, that the applicable version of
By the Court. — The order of the circuit court is affirmed, and the cause remanded.
¶ 54. DAVID T. PROSSER, J., did not participate.Notes
References to the applicable year of the Wisconsin Statutes vary throughout this opinion and will be identified accordingly.
The relevant statutory texts can be found in section III of this opinion.
The criminal complaint cites the 1966-67 statutes for each count regardless of when between 1965 and 1972 the alleged crimes occurred. However, the relevant chapter 944 offenses were not altered during this time between 1965 and 1972.
The probable cause portion of the criminal complaint was amended on March 28, 2006, and March 31, 2006. However, the underlying charges remained the same.
The State subsequently amended its complaint, as detailed in footnote three, to address this defect.
On June 6, 2006, MaeArthur motioned the circuit court to stay the trial proceedings, but the result of that motion does not appear in the record before us.
The State cross-appealed what it believed was the circuit court‘s “order” regarding the tolling issue if raised at trial. We question whether a trial court “order” existed with regard to tolling if raised at trial. Nonetheless, we provide guidance on this issue because the circuit court did render a decision on how the tolling provision would be addressed pretrial and at trial.
Subsection (3) of
State v. Haines, 2003 WI 39, 261 Wis. 2d 139, 661 N.W.2d 72.
State v. Hamilton, 2002 WI App 89, ¶ 11, 253 Wis. 2d 805, 644 N.W.2d 243, aff‘d, 2003 WI 50, 261 Wis. 2d 458, 661 N.W.2d 832.
In a criminal case, a cause of action accrues and the statute of limitations begins when the crime is complete.
Neither Wis. Stat. 990.06 nor 991.07 was altered between 1965 and 2006. Wisconsin Stat. 990.06, Repeal or change of law limiting time for bringing actions, provides:
In any case when a limitation or period of time prescribed in any act which shall be repealed for the acquiring of any right, or barring of any remedy, or for any other purpose shall have begun to run before such repeal and the repealing act shall provide any limitation or period of time for such purpose, such latter limitation or period shall apply only to such rights or remedies as shall accrue subsequently to the time when the repealing act shall take effect; and the act repealed shall be held to continue in force and be operative to determine all such limitations and periods of time which shall have previously begun to run unless such repealing act shall otherwise expressly provide.
(Emphasis added.) Wisconsin Stat. § 991.07, “Statutes of limitation,” provides:
In any case when a limitation or period of time prescribed in any act which is hereby repealed for the acquiring of any right or the barring of any remedy or for any other purpose shall have begun to run and a limitation or period of time for such purpose shall be prescribed in these revised statutes, the limitation or period prescribed by these statutes shall be held to apply only to such rights or remedies as shall accrue subsequently to the time when the same shall take effect; and the act repealed shall be held to continue in force and operative to determine all such limitations and periods of time, which shall have previously begun to run, unless in special cases in these revised statutes a different rule shall be prescribed.
(Emphasis added.)
1987 Wis. Act 332, § 65 provides in relevant part, “[t]his act applies to offenses occurring on or after the effective date of this Section, but does not preclude the counting of other violations as prior violations for sentencing a person.”
The 1993 amendment increased the age to 26, the 1997 amendment increased the age to 31, the 2003 amendment increased the age to 45, and the 2005 amendment removed any age limit. Each time, subsection (2)(c) was amended, it stated that it applied to prosecutions not yet barred. See 1993 Wis. Act 219, § 7; 1997 Wis. Act 237, § 9356(2d); 2003 Wis. Act 279, § 10(2).
MacArthur relies on 1993 Wis. Act 219, § 7 for his argument. Section 7 states that the initial applicability of the amended
Wisconsin Stat. § 940.225 was created in 1975. It created first degree, second degree, third degree and fourth degree sexual assault of minors. Section 5, ch. 184, Laws of 1975.
Subsection (6)(am) of
Concurrence Opinion
¶ 55. {concurring). I join the majority because the text of the statutes upon which it relies support its conclusion. I write separately, however, for two reasons: (1) I am concerned about the ramifications of the majority‘s interpretation, and (2) I remain uncertain if its interpretation correctly reflects the intent of the legislature.
¶ 56. The majority adopts the position advanced by the State. At oral argument the State acknowledged that the ramifications of its position extend well beyond cases involving the prosecution of child sexual assaults. They extend to all criminal cases involving statute of limitations questions. Although I am unsure how the majority‘s decision will play out in the context of other criminal cases, I will confine my discussion to how it may affect other child sexual assault cases.
¶ 57. I am concerned that in an effort to save this prosecution, the State (and thus the majority) is actually undermining the prosecution of other child sexual assault cases. Let me explain.
¶ 58. The legislature recognized the need to expand the time period of the statute of limitations because often child sexual assaults are not reported until many years after the offense. Even though the legislature has consistently expanded the time, the majority‘s interpretation is going to leave many child sexual assaults with a very limited time for prosecution.
¶ 59. The State advocates, and the majority adopts, a bright-line rule. For all prosecutions of child sexual assaults that occur prior to July 1, 1989, a six-year statute of limitations begins to run from the date of the commission of the charged offense.1
¶ 60. Consider the case of a four-year-old who is sexually assaulted on June 30, 1989, but who does not report it until 2005, when he is 20 years old. Under the majority‘s interpretation the statute of limitations would expire on June 30, 1995, when the victim is ten years old. Period. The same six-year bar for prosecutions would apply to probably countless child sexual assaults that occurred in the 1970s and 1980s that were not reported at the time of the offense.
¶ 61. Was it the intent of the legislature to bar the prosecution of the above described June 1989 offense (and all of those other prosecutions) while at the same time consistently extending the statute of limitations? In 1987, effective July 1, 1989, the legislature recognized that the period of limitations for child sexual assault cases should extend at least to the time the victim turns 21.
¶ 62. Subsequent amendments to
¶ 63. According to the majority, a sexual assault of a child committed June 30,1989, must be prosecuted by 1995 or be barred. In contrast, a sexual assault of a child committed just one year later in 1990 may be prosecuted until the victim turns 45, or without time limitation, depending on the crime charged. It seems unlikely that the legislature intended such wildly different outcomes based on small differences as to when sexual assaults of children take place.
¶ 64. The legislature has paid a great deal of attention to the period of limitations for child sexual assault prosecutions. It has consistently expanded that period, accounting for the fact that such assaults are often reported years after they occur. The majority‘s interpretation, however, indicates that the legislature intended to expand the period for assaults that took place after July 1, 1989, while at the same time strictly limiting the periods for assaults that took place before that date. It also indicates that the legislature intended dramatically different outcomes based on small differences in when an assault was committed. I am uncertain whether such results were actually intended by the legislature.
¶ 65. Nonetheless, I join the majority because the text of the statutes upon which it relies support its interpretation. As the majority explains, under
¶ 66. For the reasons set forth, I respectfully concur.
The majority concludes that the applicable statute of limitations is set forth in the version of
1993 Wis. Act 219, § 6; see majority op., ¶ 12.
1997 Wis. Act 237; 2003 Wis. Act 279, § 9; 2005 Wis. Act 276, §§ 1, 2; see majority op., ¶¶ 13-14.