State v. Ziegler

SHIRLEY S. ABRAHAMSON, C.J.

¶ 92. {concurring in part and dissenting in part). The defendant in the present case, 42 years of age, engaged in despicable conduct. He was convicted of 14 felony counts and was sentenced to 35 years in initial confinement and 20 years on extended supervision. Majority op., ¶ 33.

¶ 93. The defendant challenges his convictions on four grounds. I disagree with the defendant's position on three of his grounds. I therefore agree with the majority opinion that the defendant's convictions of 13 felony counts stand.

¶ 94. However, I disagree with the majority's interpretation of Wis. Stat. § 948.31(2), which affects one of the 14 convictions, namely the conviction for interference with child custody.

¶ 95. I dissent because the majority errs in its interpretation of Wis. Stat. § 948.31(2):

(1) The majority fails to apply basic, accepted rules of statutory interpretation. Although the majority asserts that "we must construe statutory language reasonably" and that "[a]n unreasonable interpretation is one that yields absurd results ... or contravenes the statute's manifest purpose," majority op., ¶ 43, the majority does not analyze or apply this rule of interpretation in the present case.
(2) The majority's interpretation of Wis. Stat. § 948.31(2) yields absurd results. I agree with the State that the majority's statutory interpretation is broad enough to criminalize innocent conduct. I am unpersuaded, however, by the State's argument that we may rely on prosecutorial discretion to ensure that the statute will be applied in a way that avoids criminalizing innocuous conduct.
*300(3) The majority fails to pay proper heed to precedent, namely State v. Bowden, 2007 WI App 234, 306 Wis. 2d 393, 742 N.W.2d 332, and fails to apply accepted approaches to statutory interpretation.
(4) The majority's interpretation untethers the statute from its intended purpose and scope, as described in the Legislative Council Notes to Wis. Stat. § 948.31(2). The Legislature adopted the Notes as part of 1987 Wis. Act 332.

I

¶ 96. The majority mechanically examines the text of the statute and fails to apply basic, accepted rules of statutory interpretation.

¶ 97. The defendant was charged with violating Wis. Stat. § 948.31(2).1 More specifically, he was charged with one of the three ways of violating the statute, namely, withholding a child for more than 12 hours from the child's parents.

¶ 98. A prior court of appeals decision, State v. Bowden, 2007 WI App 234, 306 Wis. 2d 393, 742 N.W.2d 332, analyzed Wis. Stat. § 948.31(2) and declared that "[t]he withholding method addresses a situation where the person who takes the child has some initial permission to do so." Id., ¶ 18.

*301¶ 99. In its certification, the court of appeals framed the issue as "whether Bowden's interpretation is contrary to the plain language of the statute." The court of appeals also opined that "Bowden's interpretation seems to add language to the statute (and an element to the crime), which is something we may not do."

¶ 100. The majority wholeheartedly accepts the court of appeals' one-dimensional framing of the issue. The majority concludes that the "initial permission" requirement created by Bowden "is contrary to the plain language of the statute" and therefore that the conviction may stand. Majority op., ¶¶ 7-8, 51-55.

¶ 101. Relying solely on a rote application of the "plain language" rule of interpretation, the majority is of course correct that the statute makes no reference to "initial permission." Majority op., ¶ 53.

¶ 102. The majority's statutory interpretation is, however, oversimplified. This court is expected to do more than robotically read the words of a statute. As the majority itself explains, this court "must construe statutory language reasonably," and "[a]n unreasonable interpretation is one that yields absurd results ... or contravenes the statute's manifest purpose." Majority op., ¶ 43. Yet the majority does not even pause to consider whether its interpretation of the statute is reasonable.

II

¶ 103. The majority's interpretation of Wis. Stat. § 948.31(2) yields absurd results. I agree with the State that the majority's interpretation of the statute is so broad that it encompasses innocuous, innocent behavior that would not be considered felonious.

¶ 104. According to the majority, the elements of the felony are "(1) on the date of the alleged offense, the *302child was under the age of 18 years; (2) the defendant withheld the child for more than 12 hours from the child's parents; and (3) the child's parents did not consent." Majority op., ¶ 52. The majority explains that the second element is satisfied "if the defendant restrains the child or otherwise refrains from giving the child to the child's parents." Majority op., ¶ 53.

¶ 105. Under the majority's interpretation, there is no intent or knowledge required on the part of the defendant, which makes the potential breadth of the majority's interpretation staggering.

¶ 106. For example, under the majority's interpretation, if a child under the age of 18 (without permission from his or her parents) goes over to a friend's house and stays at the friend's house for over 12 hours, the friend's parent falls within the plain language of the statute and could be charged with a felony. Element (1) is satisfied because the child was under 18; element (2) is satisfied because the parent of the friend "refrain[ed] from giving the child to the child's parents" for 12 hours; and element (3) is satisfied because the child's parents did not consent.

¶ 107. In fact, a child who invites another child over for a sleepover could be charged under the statute under the majority's interpretation.

¶ 108. At oral argument, the State forthrightly acknowledged the potential breadth of the interpretation it sought. The State accepts that its interpretation of the statute encompasses not only culpable conduct that one would ordinarily consider criminal, but also innocent conduct. The State's proposed solution to this dilemma is to rely on prosecutorial discretion to ensure that the statute is applied only in appropriate situations.

*303¶ 109. I recognize the necessity and value of prosecutorial discretion in our system, but the majority opinion's statutory interpretation takes prosecutorial discretion too far and allows prosecutorial discretion to invade the legislative role of deciding what conduct constitutes a crime.

¶ 110. I conclude that the majority's interpretation of Wis. Stat. § 948.31(2) is unacceptable because it yields absurd results.

Ill

¶ 111. The majority fails to pay proper heed to precedent, namely the Bowden case, and fails to adhere to accepted approaches to statutory interpretation.

¶ 112. The "initial permission" requirement adopted in Bowden that the State now seeks to void was actually adopted at the State's suggestion in Bowden. In the State's brief in Bowden, the State argued as follows:

"Withholds" suggests a situation where a defendant has permission to take the child for a set period of time but then fails to return the child to the parents, and keeps the child for more than twelve hours without the parents' consent. It addresses a situation where the defendant has permission of the parents to have physical possession of the child in the first place ... .2

*304¶ 113. Bowden has been the law since it was decided in 2007.

¶ 114. Principles of stare decisis ("to stand by that which has been decided") apply to published court of appeals decisions, and stare decisis commands that this court adhere to a prior court of appeals decision "unless a compelling reason exists to overrule it."3 Thus, "[w]hen a party asks this court to overturn a prior interpretation of a statute, it is his 'burden ... to show not only that [the decision] was mistaken but also that it was objectively wrong . . . .' "4

¶ 115. Although the "initial permission" requirement does not appear in the text of the statute, the requirement is not "objectively wrong." Interpreting the statute to include this requirement is one way to prevent the absurd results created by the majority opinion.

¶ 116. The "initial permission" requirement in Bowden is a step closer to a reasonable interpretation than the interpretation the majority adopts today, although Bowden is not necessarily the ideal way to place a reasonable limit on the scope of Wis. Stat. § 948.31(2). Were the court's sole options either retaining Bowden's "initial permission" requirement or abandoning it and robotically applying the text of the statute, the former would have been the more reasonable choice.5

*305¶ 117. The State, which argued in favor of the "initial permission" requirement in Bowden, seemingly understands that the requirement is a reasonable interpretation. The State asserts in its brief before this court that "[w]hile the withholding method of interfering with child custody does not require that the defendant have initial permission to have the child, this will undoubtedly be the case in most applications of the statute."6 (Emphasis added.)

¶ 118. Furthermore, although the fact that the legislature has not overturned a court's interpretation of a statute is far from determinative of legislative intent,7 legislative acquiescence in a court decision is a "presumption to aid in statutory construction."8 In the present case, the legislature's failure to amend the statute in response to the court of appeals' 2007 Bowden decision " 'evinces legislative approval of the interpretation.' "9

¶ 119. As noted above, the court must have a compelling reason to overrule a prior court's interpretation of a statute. No compelling reason exists to overturn Bowden, particularly when Bowden is not being replaced by a reasonable alternative.

¶ 120. In sum, giving short shrift to precedent and to accepted approaches to statutory interpretation, *306the majority cursorily concludes that the "initial permission" requirement adopted in Bowden does not appear in the statute, that the "initial permission" requirement must be eliminated, and that no other analysis of statutory interpretation is required. The majority does not analyze whether its statutory interpretation is reasonable and does not explore more reasonable alternative interpretations. I therefore conclude that the majority opinion does not demonstrate an acceptable approach to precedent or to principles of statutory interpretation.

IV

¶ 121. The majority's interpretation untethers the statute from its intended purpose and scope.

¶ 122. The language and statutory history of Wis. Stat. § 948.31 make clear that the legislature did not intend Wis. Stat. § 948.31 to apply to situations like the present case, in which the child is with a person who is a stranger to the family. Rather, Wis. Stat. § 948.31 applies to situations in which one of the parents or guardians interferes with the lawful custody of another parent or guardian.

¶ 123. Although Wis. Stat. § 948.31(2) begins with the all-inclusive word "[wjhoever," the title to Wis. Stat. § 948.31 suggests that the statute is primarily meant to address custody disputes as opposed to abductions by strangers. The title of Wis. Stat. § 948.31 is "Interference with custody by parent or others." The focus on "parent" is indicative of the statute's intended scope.

¶ 124. It is also noteworthy that Wis. Stat. § 948.30, the neighboring statute, has the title "Abduction of another's child; constructive custody" (emphasis added).

¶ 125. Based on the titles (which the court sometimes considers useful), it appears that the defendant in *307the present case fits more neatly within Wis. Stat. § 948.30 than Wis. Stat. § 948.31.10

¶ 126. Further, the affirmative defenses set forth in Wis. Stat. § 948.31(4) indicate that the legislature intended prosecutions under Wis. Stat. § 948.31 to focus on parents and guardians, not strangers. There are three specific affirmative defenses. The first two protect the defendant if the actions were "taken by a parent" in certain situations. Wis. Stat. § 948.31(4)(a)l.-2. The third protects the defendant if the actions were "consented to by the other parent." Wis. Stat. § 948.31(4)(a)3. (emphasis added). These affirmative defenses strongly indicate that the legislature expected the person being prosecuted under Wis. Stat. § 948.31 to be a parent of the child.11

¶ 127. Finally, 1987 Wis. Act 332, which created Wis. Stat. § 948.31 and Wis. Stat. § 948.30, confirms that the legislature did not intend Wis. Stat. § 948.31 to be invoked by prosecutors in cases like the present case. 1987 Wis. Act 332 includes explanatory Notes that were drafted by the Legislative Council. These Notes appear in the text of Act 332 and were adopted by the legislature. Unlike drafting records or analysis by the Legisla*308tive Reference Bureau, these Notes are part of the text of Act 332. They should be examined in deciding the plain meaning of Wis. Stat. § 948.31 because they were adopted by the legislature.

¶ 128. Two particularly important points can be gleaned from these Notes.

¶ 129. First, a Note explains the intended scope of Wis. Stat. § 948.30 and Wis. Stat. § 948.31. The Note provides that the amendment to the child abduction statute (Wis. Stat. § 948.30) is meant to "[slpecify that the prohibition applies only to a person who abducts a child who is not his or her own child by birth or adoption."12 Crucially, the Note goes on to explain that "[t]here are other statutory provisions which more appropriately deal with a parent who takes or conceals his or her child from the other parent or other legal custodian of the child [see s. 948.31 in this bill, relating to custody interference by parents and others]."13 Thus, the legislature explicitly explained that Wis. Stat. § 948.31 is intended to address parents who take or conceal their children, not strangers.

¶ 130. Second, a Note explains the origins of Wis. Stat. § 948.31, the provision at issue in the present case, and how it differs from the statutes that were combined to create it.

¶ 131. The Note explains that Wis. Stat. § 948.31 was created by combining Wis. Stat. § 946.71 (1985-86) ("Interference with custody of child") and Wis. Stat. § 946.715 (1985-86) ("Interference by parent with parental rights of other parent").

¶ 132. Wisconsin Stat. § 946.71 (1985-86) became Wis. Stat. § 948.31(2). Interestingly, the earlier statute *309included mens rea. It provided that "whoever intentionally does any of the following is guilty of a Class E felony: ... (4) Entices away, takes away or withholds for more than 12 hours any child under the age of 14 from the parents, or the child's mother in the case of a nonmarital child where parents do not subsequently intermarry under s. 767.60, without the consent of the parents or the mother ..." (emphasis added).

¶ 133. The Note explains that the earlier statute was amended to make it applicable to children of any age, not just children under the age of 14.14 The Note also explains several other ways in which Wis. Stat. § 948.31 differs from its predecessors, but there is no reference to the legislature's abandoning the requirement of intentional conduct. Had such a drastic change in the statute been intended, one would think it would be referenced along with the other changes in the explanatory Note.

¶ 134. In sum, there is sufficient evidence in the Legislative Council Notes adopted by the legislature indicating that the intended purpose and scope of Wis. Stat. § 948.31(2) is much narrower than the sprawling scope created by the majority's interpretation. The legislature did not intend Wis. Stat. § 948.31(2) to apply when the defendant is not a parent or legal guardian of the child or a person with permission. Additionally, it is not likely that the legislature intended Wis. Stat. § 948.31(2) — a serious felony — to operate without any mens rea requirement.

¶ 135. Because the majority's interpretation of the statute untethers it from its intended purpose and scope as illustrated in the Legislative Council Notes adopted as part of 1987 Wis. Act 332, and because the *310majority's interpretation renders Wis. Stat. § 948.31(2) absurdly broad,15 I conclude that the majority's interpretation is unreasonable.

^ ‡

¶ 136. As I stated at the outset, 13 of the defendant's convictions stand. The defendant's assertions of error that I have not addressed are not persuasive. The defendant does not escape severe punishment for his abhorrent course of conduct. The court cannot, however, affirm the defendant's conviction for violating Wis. Stat. § 948.31(2) based on an unreasonable interpretation of the statute. Because the interpretation of Wis. Stat. § 948.31(2) adopted by the majority in the present case is unreasonable, the defendant's conviction for interference with child custody should be overturned.

¶ 137. For the reasons stated above, I dissent on this single issue only.

¶ 138. I am authorized to state that Justice ANN WALSH BRADLEY joins this concurrence/dissent.

Wisconsin Stat. § 948.31(2) provides:

Whoever causes a child to leave, takes a child away or withholds a child for more than 12 hours from the child's parents or, in the case of a nonmarital child whose parents do not subsequently intermarry under s. 767.803, from the child's mother or, if he has been granted legal custody, the child's father, without the consent of the parents, the mother or the father with legal custody, is guilty of a Class I felony. This subsection is not applicable if legal custody has been granted by court order to the person taking or withholding the child. (Emphases added.)

State v. Bowden, 2007 WI App 234, 306 Wis. 2d 393, 742 N.W.2d 332, Brief of Plaintiff-Respondent at 6.

The State asserts in its brief before the court in the present case that "the State does not believe that its argument in Bowden should be interpreted as stating that the withholding method can only be applied where the defendant has initial permission to have the child, but instead speaks to what normally would be the case." Brief of Plaintiff-Respondent at 13-14 n.2.

See Wenke v. Gehl Co., 2004 WI 103, ¶ 21,274 Wis. 2d 220, 682 N.W.2d 405 (citations omitted).

Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, ¶ 45, 281 Wis. 2d 300, 697 N.W.2d 417 (quoting Wenke, 274 Wis. 2d 220, ¶ 21).

In reality, the court has other options. For one, the court could read an intent requirement into the statute.

Another important consideration left unaddressed by the parties and the majority is whether the present case should be *305governed by the Bowden interpretation because it was the law at the time of the defendant's offense.

Brief of Plaintiff-Respondent at 13 n.2.

See, e.g., Wenke, 274 Wis. 2d 220, ¶¶ 32-37.

Id., ¶ 35.

Id., ¶ 33 (quoting State v. Eichman, 155 Wis. 2d 552, 556, 456 N.W.2d 143 (1990)). For additional discussion of legislative inaction as an interpretive tool, see Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65, ¶¶ 43, 53, 341 Wis. 2d 607, 815 N.W.2d 367.

Wisconsin Stat. § 990.001(6) provides that "[t]he titles to subchapters, sections, subsections, paragraphs and subdivisions of the statutes and history notes are not part of the statutes." Nonetheless, "courts often examine titles and history notes because they provide valuable clues to the meaning of statutory text." Madison Metro. Sch. Dist. v. Circuit Court for Dane Cnty., 2011 WI 72, ¶ 65 n.12, 336 Wis. 2d 95, 800 N.W.2d 442.

Cross-references to Wis. Stat. § 948.31 elsewhere in the Wisconsin Statutes support a similar conclusion. For example, Wis. Stat. § 49.22, which addresses child support and other topics, refers to "persons who are alleged to have taken their child in violation of s. 948.31" (emphasis added).

1987 Wis. Act 332, § 55.

1987 Wis. Act 332, § 55 (emphases added).

1987 Wis. Act 332, § 55.

See supra Part II.