*1 Plaintiff-Respondent-Petitioner, Wisconsin, State
v. Defendant-Appellant.
Robert Sweat, W. Supreme Court 10, 1997. argument January No. 95-1975-CR. Oral —Decided 18, 1997. April (Also 695.) reported in 561 N.W.2d *3 plaintiff-respondent-petitioner For the the cause argued by McGlynn Flanagan, was Maureen assistant attorney general with whom on the briefs Thomas were attorney general, Fallon, J. assistant and James E. Doyle, attorney general. defendant-appellant
For the brief there was a Schmidt, Schmidt, Leon Duncan, S. Jr. And Grace & Rapids argument by Wisconsin and oral Leon S. Schmidt, Jr. STEINMETZ, DONALD J. issue
¶1. W. The . presented pro- in this case is in whether restitution 973.20(l4)(b)1
ceedings,
§
allows
Wis. Stat.
than criminal statute
to assert a civil rather
defendant
discovery
tolling
limitations, and
related civil
and
its
for resti-
rules,
crime victims' claims
to
individual
bar
County
Court, the Honorable
tution. The Wood
Circuit
presiding,
the
Finn,
answered "no" and denied
John V.
the civil statute of limitations
defendant's claim that
applied
tolling principles
resti-
to limit
and its related
defendant,
W.
court
Robert
tution. The
ordered
pay
to
$364,597.23 in
Sweat,
a total of
racketeering scheme.
of his criminal
some 23 victims
Reversing
restitution,
court's order of
the circuit
appeals
statute of limita-
court of
found that the civil
proceedings.
applies
Sweat,
State v.
tions
to restitution
1996).
(Ct. App.
202 Wis. 2d
412 four or more acts of securities fraud in violation Wis. 551.41(2)3 charged separate Stat. which were as complaint. nego- counts of the The defendant entered a plea single tiated no-contest to a count information charging racketeering. him By plea, his that, defendant admitted August 6, between 6, 1988, and December as president intentionally Insurance, Inc., of Sweat he feloniously, and offer, connection with the sale or purchase participated corporate securities, in the enterprise through racketeering pattern com- mitting acts of securities fraud in Wis. violation of Stat. 551.41(2) on at least three In each occasions. instance, the defendant to inform failed named inves- (1) tors of material facts he that: had been convicted of pre- theft fraud in 1983 for conversion of insurance (2) intermediary-agent's miums; his license had been suspended days conviction; as a result of that (3) bankruptcy and he had declared in 1983 and had all discharged. debts urges 5. The defendant this court affirm appeals' argues
court of decision. He unambiguous 973.20 face, on its there- should interpreted plain meaning fore based on of its terms. Sweat asserts that defense in a available just any civil action" means defense. Even when that — considering entirety, argues statute in its Sweat unambiguous that it is because statutes of limitation are substantive defenses and therefore cannot be purposes proceedings. Finally, waived for of restitution §551.41(2) provides "[t]o it is unlawful make untrue statement of a material fact to state or to omit necessary made, a material fact in order to make the statements made, light they in the of the circumstances under which are not misleading...." *5 appeals' interpretation argues that the court of
Sweat
with
is not inconsistent
of Wis. Stat.
disagree
provisions
the
We
other
of 973.20.
argument.4
facets of
defendant on all
his
presented in this case
6.
of the issue
Resolution
requires
interpretation
least
related stat-
of at
two
939.74(3), providing
the statute
utes, Wis. Stat.
prosecutions,
and Wis.
limitations in criminal
interpretation of
§ 973.20,5
The
the restitution statute.
question of
this court reviews
a
law which
4
however,
limitation
acknowledge,
do
that statutes of
We
Verhulst,
indeed,
195
are,
Modica v.
substantive defenses. See
(Ct.
1995), citing
633, 644,
App.
2d
The ultimate of interpretation is to legislature. ascertain the intent of step the The first of process is to look at the language of the stat- plain clear, ute. If meaning the of the statute a is court need not look of statutory to rules construc- Instead, tion or other extrinsic aids. a court should simply apply meaning the clear to the If, however, facts it. ambigu- before the statute is ous, beyond this court must look the statute's context, language scope, history, and examine the matter, subject purpose of the statute. LIRC,
UFE Inc. v. 274, 281-82, 201 Wis. 2d 548 (1996). (Citations omitted.) N.W.2d 57 Inc., this court UFE to According the first is to a step determine whether statute is ambiguous. (14) any hearing (13), following At under sub. all of the apply: (a) demonstrating by preponderance of The burden the ofthe by evidence the amount of loss of sustained victim as a result the crime is on the victim.... (b) demonstrating, by preponderance The the of burden evidence, . the financial resources the defendant. .is on may The the defendant. defendant assert defense that he sought compen- or she in a civil the loss could raise action for to be sated. ... (d) oppor- parties matter an All interested in the shall have heard, tunity through counsel, present personally to be or parties. evidence and to cross-examine witnesses called other proceeding conduct so court. . .shall as to do substantial justice according parties between rules of substantive procedure, practice, pleading law and the rules of waive evidence, except provisions relating privileged communica- Discovery except good tions. is not shown. ... available cause
415 ambiguous statutory provision "[A] if reasonable meaning." Inc., 201 as to its UFE minds could differ Harnischfeger quoting Corp. LIRC, v. 283, 2d at Wis. (1995). Ambiguity 662, 539 98 2d N.W.2d 196 Wis. statutory provision can be found in words of they provision interact itself, or as words provisions in the statute and to and relate to other Custody D.M.M., Wis. 2d In re 137 other statutes. (1987). 530 375, 386, N.W.2d statutory construing provision, the ¶ When related of the statute should entire section and sections Pantry Buttke, Hen also, v. be considered. Id. See White (Ct. 1980), App. 119, 122, 2d 98 Wis. N.W.2d grounds, citing State, 64 on Omernik v. rev'd other *7 (1974). determining 6, 12, 218 2d meaning N.W.2d phrase single single statute, in a of a word or a necessary light it of the it is to view in entire statute. (citation omitted). at 122 Buttke, 98 2dWis. Seizing sentence, word, on one indeed one of 973.20(14)(b), § isolation, in the court of
Wis. literally appeals drew the successive conclusions that apply proceed- in civil statutes of limitation restitution ings tolling judge-made and that civil civil statutes discovery applied disposition must be rules "any" in restitution claims. word is Wis. Stat. 973.20(14)(b), appeals § and the claimed that it court unambiguous analysis term, an no further need be is so done. appeals' error in its char- The court was 973.20(14)(b) §
acterization of Wis. Stat. as unambiguous. only possible This characterization if "any," exclusively ignoring at one looks the word while 973.20(14)(b) § itself, the remainder of Wis. Stat. partic- § statutes, whole, as a and related Stat. 973.20 ularly Ambiguity § Wis. Stat. 939.74. in a statute can separate statutes, be created the interaction of two as well as single the interaction of words and structure of a Custody D.M.M., statute. In re 2dWis. 375, 386. statutory provision at issue in this case 973.20(14)(b), provides
is Wis. Stat. part in which relevant "[t]he any defendant assert defense that sought he or she could in a raise civil action for the loss compensated." provision alone, to be When read appears unambiguous. However, to be clear and when conjunction read in statute, remainder of the provision ambiguous. at issue becomes As the State explains "any" brief, in its the word on its own is une- quivocal, "any but the term defense" as used in the legisla- self-defining statute is neither nor defined. The history placement tive provision of the statute and the "any appli-
at issue indicate that defense" is cable toward the defense of the amount of the loss issue, at and therefore does not include defense" 973.20(14) imaginable. language Further, other "practice, proce- authorizes the court to waive rules of pleading hearing. dure, in a or evidence" 973.20(14)(d). Additionally, although Wis. Stat. language provisions in other of 973.20 it clear makes hearings that restitution are not to conducted like a language trial, civil
purports rely to allow a defendant to on defense *8 in a conclude available civil action. We that the statu- tory provision case, at issue 973.20(14)(b), ambiguous. § language 12. of the statute is Because
¶ ambiguous light of the as when construed a "scope, history, whole, context, this court looks to the subject purpose matter, Inc., and of the statute." UFE scope, his- examine the 2d at 282. When we Wis.
tory, subject purpose matter, context, and subject entire statute, this court concludes that establishing goes to matter of the restitution statute sought compensated. to be the amount of the loss liability once restitution is Defenses to are not relevant to crime victims. available legislative explanation in There is no ¶ "any drafting phrase defense" in Wis. record of the 973.20(14)(b). origins § However, the of this Stat. phrase placement § within Wis. Stat. 973.20 and its legislature intended to show that combine mean defenses as to the amount defense" to liability restitution, and not defenses to for restitution- ary payments or acts. requirement that convicted criminals
pay to their victims was first mandated (1979-80). § Stat. Stat. 973.09 Wis. Wis. requirements, § created to set restitution 973.20 was require § con- Stat. 973.09 was amended to Wis. (14)(b) statute. Subsection formance with new changed since the stat- Stat. 973.20 has not been enacted. ute was first judicial council notes for Wis. Stat. (13)(a) patterned
§ 973.20 indicate that subsection was 3664(a) on and is similar to former Wis. 18 U.S.C. (14)(a) (c) 973.09(lm). pat- are Subsections 3664(d) and the former Wis. Stat. terned on 18 U.S.C. 973.09(lm)(a). (13)(a) lays 16. Subsection out the factors may may findings make court consider and the court ordering fails to before restitution. When a defendant ability concerning pay, her offer evidence his or making detailed court order restitution without (13)(a)l findings through 4, on the factors in subsection *9 inability pay the defendant's the claimed because not an is issue before the court. State v. (Ct. Szarkowitz, App. 740, 749, 157 Wis. 2d N.W.2d 1990). (14)(a) (b) Subsections and describe the proof regard standard and burden of to those "ability pay" factors. drafting committee based 973.20(14)(a)-(c) 3664(d)(1985):
§ § on 18 U.S.C.
Any dispute as to the amount of proper type resti- by tution shall the be resolved court preponderance of evidence. The burden dem- onstrating the amount of the loss sustained victim as a result of the offense shall be on the attorney for the Government. The of demon- burden strating the financial resources of the defendant and the financial needs of the defendant and such dependents defendant's shall be an the defendant. demonstrating burden such other matters as appropriate upon party court deems shall be designated by justice requires. court as places This ofthe subsection federal statute the burden proving the defendant's financial condition on the defendant. This subsection does not address the defen- 3664(d) liability dant's for restitution. 18 U.S.C. long. four sentences The first sentence of 18 U.S.C. 3664(d) proof determining sets the standard of proper amount restitution. The final three sentences 3664(d) proof. of 18 U.S.C. allocate the burdens of directly These three sentences correlate to subsections (14)(c) (14)(a), (14)(b), of Wis. Stat. 973.20. For example, sentence of federal second prove establishes the victim's burden to financial loss. (14)(a) Likewise, subsection 973.20 prove financial loss. establishes the victim's burden to The third of the federal sentence statute establishes prove
the defendant's burden to his financial resources (14)(b) Similarly, and needs. subsection of Wis. Stat. *10 prove § establishes the defendant's burden to 973.20 in financial resources and needs.6 It is this subsec- his (14)(b), legislature placed phrase tion, that the has "[t]he may any defendant assert defense that he or she sought could raise in a compensated." action for the loss to be civil 3664(d) § 18. 18 U.S.C. relates determination of the amount of restitution and not to a liability restitution. determination of § for Wis. Stat. 973.20(14)(a)-(c) very elosely form and follows the content of that statute. basing In addition Wis. Stat. 3664(d), legislature
§ § on 18 U.S.C. part also relied on of Wisconsin's former restitution 973.09(lm)(a). "[the phrase § statute, Wis. Stat. The may any defendant] assert defense that he or could she sought compen- in raise a civil action for the loss to be directly sated," was taken from former Wis. Stat. 973.09(lm)(a). history legislative § A review of the for particular prior this sentence from 973.09(lm)(a) that first reveals sentence was introduced into the earlier restitution statute in 1981. drafting except The record demonstrates that for one wording change, changed minor this sentence was not original publication from the draft to the final of Wis. 3664(d) 6 The final sentence of 18 U.S.C. states proving appropriate burden of other matters shall deter 973.20(14)(c) Likewise, by mined the court. Stat. states Wis. proving appropriate burden of other matters shall be by determined the court. 973.09(lm)(a) of the Laws of Chapter
Stat. 973.09(lm)(a) (1981-82) reads: 1981.7 payment determining the amount and method restitution, the financial the court shall consider ability probationer and future resources may payment for of restitu- pay. provide The court not in excess of the up to the victim to but tion proba- the offense. caused pecuniary loss that he or she could assert tioner defense to be com- sought a civil action the loss raise in fines, pensated. payment If orders the court also and costs under s. payments under s. 973.05 related fines, pay- 973.06, set the amount of related it shall conjunction the amount ments and costs order, single signed restitution and issue *11 required as a condition judge, covering payments all legal representation If the probation. costs 977.08 are not attorney appointed under s. private order, of the at the time of issuance established costs at a the order to include those court revise the interest of The court shall consider later time. receiving restitution when determin- the victim of costs. ing payment whether to order 973.09(lm)(a), the sentences 20. Wis. ¶ only relate defenses" sentence "any leading up amount of restitution. determination 3664(d), thus U.S.C. 973.09(lm)(a), like 18 Stat. § on and not post- the amount of restitution focuses on for restitution. liability conviction are there history, Aside from the legislative 21. the criminal suggest factors that numerous other limitations, limitations, not a civil statute to" was change phrase that the "is entitled was the earlier drafts of the "may" in one of replaced the word statute. appropriate hearing.
is
in a restitution
The statute at
applies
hearings.
issue
in all
A
restitution
hearing
proceeding
part
in a criminal
is
of the criminal
sentencing process,
goals
and serves the
of the criminal
justice system.
Pope,
See
v.
726, 729,
State
107 Wis. 2d
(Ct.
1982).
App.
victim" of a crime the defendant has committed.
Despite
statutory
directive, if the civil statute of
apply
limitations is to
in cases such
one,
as this
then
charged
given
not all of the victims of the
crimes will be
opportunity
to be made whole.
Apparently conflicting provisions
of law
should be construed so as to harmonize them and thus
give
leading
effect to the
idea behind the law. State v.
(1975).
Schaller,
422
applies
limitations which
statute of
the same
should be
prosecution
939.74,
whole,
Stat.
as a
to criminal
tolling provisions.
including
This is consistent with
its
purpose of the statute.
the overall
reading
§ 973.20
of Wis. Stat.
The natural
applicable
harmony
§ 939.74, the
Stat.
in
with Wis.
statute
limitations, is that the same
of
criminal statute
proceedings
applies
as
to the restitution
limitations
reading com-
This
criminal action.
rest of the
to the
purpose
recognized
ports
of restitution
dual
2)
1)
making
rehabilitating
all victims
a defendant and
reasonably
extent
or her crimes whole
of his
interpretation
possible.
consistent with
This
being
The
victims.
the movant on behalf
state
of limitations
the criminal statute
is entitled to
state
enforcing
applies
limitations
The
restitution.
it is
of crimes because
to the victims
the state and not
to
criminal
victims,
files
state, and not the
which
brought
against
defendant.8
State
actions
timely manner,
against
and
in a
the defendant
action
of limitations.9
met the statute
has therefore
stat-
allow the civil
and
To rule otherwise
proceedings
apply
limitations
in restitution
ute of
keeping
are not
results that
lead to unfair
would
goals
all victims
to make
of restitution
of the
with one
973.20(1), (8),
Stat.
whole. See Wis.
of a crime
(13)(a)l.
previously
example,
mentioned, some
as
For
charged
be allowed
offense will
of the victims
however,
of demonstrat
note,
"[t]he
burden
We
as a result of
by a victim
of loss sustained
ing. . .the amount
sentencing is on the victim." Wis.
at
crime considered
973.20(14)(a).
Lyons,
v.
Tubes Co.
ex rel. Globe Steel
generally State
See
(statutes
(1924)
do
of limitation
107, 121,
11Wis. Stat. §893.54. 12For a list of several actions, affirmative defenses to civil 802.06(2). see Wis. Stat. §
duct[ing] proceeding as to do substantial so 973.20(14)(d). proce- justice." Technical or *14 might proper in a be civil dural defenses which they only proceeding that asserted to the extent be the informal nature of resti- are not inconsistent with goal general policy proceeding of and tution with justice." achieving "substantial proceeding prospect of a restitution justice" goal doing of "substantial distracted from the tolling discovery by mat- of and the technicalities civil simply appeals, at court of ters, as envisioned degree responsibility a felon odds convicted actively expected he like defendant is to embrace when pay probation in lieu and an order to restitution seeks prison as defendant did. of a substantial sentence violating intentionally defendant has been convicted resulting, racketeering in turn, a criminal bilking of hundreds of of his numerous victims jus- of dollars of their assets. "Substantial thousands requires to each of his victims be entitled tice" monetary defendant can share whatever provide. required tort The technicalities of civil pro- pleading, proceedings the rules of service and accompany tolling of action which cess, and of causes fundamentally from, rather than distract them would justice." achieve, serve to "substantial phrase Another indication relat- to include defenses was intended defenses" relating ing those of restitution and not to the amount phrase liability of this is the location for restitution Under Wis. Stat. rest of the statute. in relation to the 973.20(1), process for determination there is no liability upon for restitution.13 An order for restitution directory: of a conviction crime is at least imposing ordering probation When sentence or for any crime, court, in pen- addition to other alty law, authorized shall order the defendant .unless partial to make full or restitution. . court finds substantial reasons not to do so and states the reason on the record. 973.20(1). also, Borst, See State v. 181 Wis. (Ct. 1993)(hold- App.
2d
121-22,
ing to determination of the amount of loss be compensated. Additionally, phrase "any defense in
he or she could raise a civil action" as found Wis. by immediately Stat. followed phrase sought compensated." This "for the loss to be clearly "any placement indicate that seems to any defense defense" to which the statute refers means court, the trial to the amount of restitution ordered compen- "any sought to defense. . .for the loss be reading, that a sated." Under this the assertion statute of limitations defendant could submit civil placement a is ludicrous. as defense Neither phrase, purpose restitution, nor the direc- the overall tory, mandatory, ordering restitution, if not nature of raise, the defendant to after indicate an intent allow liability conviction, for financial loss. civil defenses to reasoning, conjunction with the 32. This 973.20(14)(b), statutory purposes leads of Wis. Stat. mean "all defense" does not the conclusion "all Rather, in a it means defenses available civil suit." relating of the loss to the determination defenses sought compensated restitution." to be not case, Stat. 939.74 does occurring claim after claim for restitution on bar a 939.74(1) prosecu- April Stat. 1, 1983. Under Wis. felony ordinarily commenced within must tion for 939.74(3), years. however, "the six Under Wis. *16 during publicly not a resident the actor was time which compu- in the .shall not be included" within this state.. by hearing governed A tation. prosecution. plainly part In of a criminal 973.20 is he left testified that Wisconsin case, the defendant April 1,1989, and that and to Texas on about moved By continuously that time. since he had resided there 939.74(3), operation therefore, the run of Wis. Stat. ning of limitations for felonies committed prior leaving defendant Wisconsin was tolled on April longer "publicly 1, 1989, when he was no a resi id.; Sher, dent within this state." See see also 149 Wis. 9; Whitman, 260, 266-67, 466 2d at v. 160 Wis. 2d State (Ct. 1991). App. N.W.2d Whitman, In the court stated: "The statute long residency ques- of limitations will run as as the public tion is both and within the state. Absent these two conditions. . .the statute is tolled." Id. As the trial correctly concluded, court therefore, the relevant stat- limitations, 939.74, ute of Wis. Stat. does not a bar occurring claim for restitution on transaction after April 1, 1983. Because the restitution order is limited arising applicable to claims within the statute of limi- tations, the defendant's claim that some claims are they years barred because arose more than six before complaint filed was and the warrant issued on June rejected. 22,1993, must be statutory provision sum, issue, at 973.20(14)(b), unambiguous while on its ambiguous light
own, when viewed in of the statute entirety. ambiguity, in its Due to the this court must including purpose policy look to other factors provision light behind statute and the at issue in provision the whole statute to determine what legislative history purpose means. Based on the and on of the statute to both rehabilitate the defendant and to compensate any crime, victim of the defendant's appeals' interpretation court of of the statute is incor- rect, for it allows defendant certain circumstances having to be convicted of a crime such as fraud without to make restitution to those most harmed the crime. just punishment Restitution is not defendant; for the *17 it is intended to make the victims of criminal acts It that whole. makes sense the same statute of limitations in the criminal applies underlying pro- its should also ceeding, including tolling provisions, in the restitution apply proceedings. reasons, 36. For the foregoing we reverse
¶ court of decision and hold that the same appeals' stat- ute of limitations in the underlying applies 939.74, criminal proceedings, Wis. Stat. its including also in the tolling provisions, restitution applies proceedings.
By the Court. —The decision of the court of appeals is reversed. I BRADLEY, 37. ANN WALSH J. (dissenting).
dissent. The is whether the civil or question presented the criminal statute of limitations in a restitu- applies I tion conclude that whether considered proceeding. alone or with other conjunction statutory provisions, 973.20(14)(b) mandates unambiguously of the relevant civil statute of limitations application restitution I affirm proceedings. would Accordingly, the decision of the court of appeals. statute, 973.20(14)(b), pro- relevant in a hearing,
vides that a "defendant in a civil assert defense that he or she could raise action for the loss to be This sought compensated." court to determine must interpret that he or she could phrase "any whether defense of limita- raise a civil action" to civil statute applies tions defense or to a criminal statute of limitations defense. interpreting statute, this court 39. When legisla- identify and effectuate the intent of
seeks *18 Stockbridge DPI, 214, 202 Wis. 2d ture. School Dist. v. (1996). plain to the 219, 550 96 We look first N.W.2d meaning statutory meaning If of the text. statutory unambiguous, text is need not look fur- we statutory language may However, Id. at 220. be ther. ambiguous by sepa- rendered the interaction between statutes, the interaction of rate, related words single J.M., and structure of a statute. F.P.R. v. (1987). 375, 386, Wis. 2d 404 N.W.2d agree majority 40. I with the when it states 973.20(14)(b) unambiguous "[is] own," on its and "appears unambigu- read alone to be clear and when dispute Majority op. There is no ous." at is a defense in criminal and the statute of limitations Thus, the statute of meets the civil actions. limitations "any question definition of defense." The is whether it or the criminal statute is the civil statute limitations a in of limitations that can be raised as defense a civil Only apparent. the civil statute of action. The answer is action; limitations can raised as a defense in a civil as the criminal of limitations is not available plain language defense in a § action. The civil 973.20(14)(b) application mandates of the civil stat- proceedings. ute of in restitution limitations disagree majority's I with the conclusion 973.20(14)(b) language that the relevant in becomes ambiguous when considered the context of the statutory provision remainder of the and other rele- majority vant statutes. The concludes that the relevant 1) portion ambiguous §of because: self-defining defined; term defense" is neither nor 2) legislative history placement provi- and " 'any applicable sion indicate that defense' is toward the defense of the amount issue"; loss at 3) statutorily courts are authorized to waive rules of "practice, procedure, pleading or evidence" when con- 4) ducting proceedings; language and other hearings in 973.20 makes "clear that restitution are unpersua- not to be conducted like a civil trial." I find majority's ambiguity sive each of the bases for the determination. majority's phrase assertion that
" 'any defense' as used in the statute is neither self-
defining
nothing
analysis
nor defined" adds
Majority op.
any,
is incorrect.
Few,
at 417.
if
words are
"self-defining."
"any" may
The definition of
be found
dictionary,
partial
and a
list of civil "defenses" is
802.02(3),
provided
§in
which includes the statute of
*19
repeatedly
resorting
limitations. We have
held that
to
dictionary
statutory
definitions
not a
is
basis for
determining
statutory
ambiguous.
that a
term is
County,
Girouard v. Circuit Court
Jackson
155 Wis.
for
(1990);
148, 156,
2d
431 2) history legislative used to render stat- cannot be e.g., Cynthia ambiguous. utory language La See, E. v. Dep't., County 2d 172 Wis. Human Services Crosse (1992); 798; 2d at Smith, 139 Wis. 229, 493 56 N.W.2d Aparacor, 399, 403, 2d DILHR, 97 Wis. Inc. v. (1980). resorting for I find no basis While N.W.2d briefly majority's legislative history, I address proposition in a that defendant reliance on it for the hearing may only those civil defenses raise speak to amount of restitution. 3664(d) majority § notes that U.S.C. only restitution, and reasons the amount deals with 973.20(14)(a)-(c) patterned § after was that because language "any at issue statute, the defense" the federal only speak to the amount of must also this case majority, aiding the text of 18 Far from restitution. 3664(d) actually § the conclusion undermines U.S.C. legislature defense" to mean intended only affect the amount of a victim's those defenses that 3664(d) 973.20(14)(a)-(c), 18 U.S.C. Unlike loss. "do[] provisions the defen- not address states that its express liability Thus, its restitution." dant's 3664(d) only the amount terms, deals 18 U.S.C. of restitution. 973.20(14)(a)-(c), creating legisla- our 3664(d), yet freely from 18 U.S.C.
ture borrowed including any of the federal statute's refrained from language those limit a defendant to that would *20 relating Moreo- to the amount of restitution. defenses correctly legislature majority notes, the did ver, as the "any language from 18 U.S.C. the defense" not take 3664(d); already part language ofWisconsin's the was existing restitution statute. See Wis. then 973.09(lm)(a) (1981^82). legislative history Thus, the shows that our legislature adopt limiting language did not the of 18 3664(d). legislature adopted Instead, U.S.C. guage the lan- majority "appears" that the concedes unambiguously allow a defendant to raise civil stat- proceeding. ute of limitations majority in a restitution legislative nevertheless concludes that the history majority's endorses the limitation on the phrase "any defense." Continuing legislative history inquiry, its majority statutory predecessor
the notes that the 973.20(14) "any language contained the same defense" present carries, restitution statute and that places "any each version of the statute defense" language dealing only after sentences with the amount According majority, placement of restitution. "any provision: of the defense" clearly "any seems to indicate that the defense"to which the statute refers means defense to the court, amount of restitution ordered the trial "any sought defense. . .for the loss to be compensated." (omission
Majority op. original). at 427 in the majority's interpretations alternative "any they defense" are infirm because necessitate a rewriting In statute. order to reach its conclusion "any "any defense" means defense to the amount majority court," ordered the trial statutory must create text out of whole cloth. order "any to reach the conclusion that defense" means sought compensated," defense. . .for the loss to be majority important phrase must delete the "that he or very statutory action," she could raise in a civil language view, at issue in this case. Under either *21 give meaning
majority in order to rewrites the statute argument. placement its the restitution that each version of It is true provision preceded "any the defense" statute has dealing only amount, rather than with the sentences liability. However, in the both fact, of restitution legislature has statute, of the and new versions old containing limiting the sentence refrained from so easily legislature language. could The defense" may "[t]he provided assert that: defendant have amount of loss that reduce the civil defense sought would Significantly, compensated." it did not. to be majority next relies on Wis. Stat. 973.20(14)(d), provides con- that a court "shall which [restitution] proceeding so as to do substantial duct the according justice parties the rules of between may practice, the rules of law and waive substantive majority pleading procedure, . . ." The or evidence. following proposition: language derives from might defenses which procedural Technical only to proceeding in a civil be asserted proper they are not with the the extent inconsistent proceeding and informal nature of a restitution achieving general policy goal "substan- justice." tial majority implies
Majority op.
at 425.
reading
ambiguous
a literal
because
procedural
provision
a "technical or
would allow
upset
limitations to
like the civil statute of
defense"
proceeding.
nature of a restitution
informal
A
of limitations defense is not
"procedural" defense;
it is substantive
"technical" or
633, 644, 536
Verhulst,
v.
195 Wis. 2d
law. See Modica
(Ct.
1995), citing
App.
v. Medi-
Betthauser
N.W.2d
cal
Co.,
Protective
Wis. 2d
The limitation of right actions is a as well as a remedy, extinguishing right on one side and creating right other, on the which is as of high dignity regards as judicial remedies as other right and it is a right enjoys which constitutional protection. This court views statutes of limitation as substantive they statutes because create and destroy rights. (citations
Betthauser,
specter proceeding .by of a "restitution distracted.. tolling discovery technicalities of civil matters." 893.51(1) Majority op. § at 425. The civil statute oflimi- apply tations is no more difficult to than the criminal prescribed statute of limitations in Wis. Stat. 939.74(1). 939.74(1) years. § § Both "run" after six period during is tolled the time that a criminal defen- publicly dant is "not a resident state," within this while 893.51(1) period § is tolled while a defendant is out subject personal jurisdiction of state and not under § 801.05. See Wis. Stat. 893.19. In addi- expressly provides that tion, the restitution good except cause not available is "[discovery 973.20(14)(d). majority's find the I therefore shown." "distracting more civil technicalities" concern with imaginary than real. majority also contends provisions ambiguous because other hearings are "clear that restitution 973.20 make op. Majority at trial." like a civil
not to be conducted reading majority's disagree § 973.20, 417.1 pro- proceedings parallel do civil because example, ways. significant ceedings For 973.20(5)(a) provides that a defendant damages. pay "special required could be . .which against for his action the defendant in a civil recovered *23 Also, a crime. . . ." commission of her conduct the or of his or her the amount must demonstrate the victim preponderance the evidence. of loss 973.20(14)(a). preponderance of the evi- The same purposes placed on the defendant for is dence burden determining wherewithal. her financial his or 973.20(14)(b). required Furthermore, the State is not indigent provide appointed restitution counsel to hearing prior is held at "unless the defendants sentencing proceeding, is incarcerated
the defendant hearing Id. The held or the court so orders." when very provision case, allows a in this which at issue pro- defenses in a restitution defendant to raise civil hearings ceeding, anticipates will be restitution quasi-civil manner. in a conducted Finally, majority lit- that a concludes 54. 973.20(14)(b) reading an absurd would work eral application of limita- of a civil statute result, because at least crime victims to recover allow some tions would pecuniary portion losses, other victims' of their while majority correctly claims would be time-barred. As the notes, when the State restitution, seeks it does so on required behalf of victims who would otherwise be bring against Majority op. a civil claim the defendant. claiming at pecuni- 423. It is not State, absurd that the ary damages on victims, crime would be held behalf to the same statute of limitations that the victims seeking would encounter in a civil action to recover the compensated might loss in restitution. Indeed, one rea- sonably majority's reading assert that it is the by reviving statute that achieves an result, anomalous proceeding pecuniary in a restitution claims of vic- tims that would be time-barred in a civil action. majority "only states that it makes . applies sense that the same statute of limitations that underlying proceeding. in the criminal . .should also apply proceedings." Majority op. in the restitution at position justice" 429. It advances the that "substantial requires compensated. Majority op. that each victim be 973.20(14)(b), majority's at In the absence of reasoning might persuasive. advancing However, justice approach, this common sense and substantial majority ignores plain directive of the statute. language unambiguously calls application for the of the civil statute of limitations to proceedings. summary, because a criminal statute of [a defendant] limitations is not a "defense that could *24 raise in a action," civil I conclude that unambiguously requires application of the relevant proceeding. civil statute of limitations in a restitution such, As the defendant in this case is entitled to invoke 893.51(1) Accordingly, statute of limitations. I appeals. affirm would the decision of the court of respectfully foregoing reasons, I For the dissent. Chief I am authorized to state that Justice joins
Shirley opinion. S. Abrahamson