State v. Byers

N. PATRICK CROOKS, J.

¶ 62. (dissenting). For the reasons set forth below, I respectfully dissent.

¶ 63. The majority opinion fails to follow well-established rules of statutory interpretation. As we have consistently noted, the purpose of statutory interpretation is to ascertain and give effect to the legislature's intent. State v. Delaney, 2003 WI 9, ¶ 13-14, 259 Wis.2d 77, 658 N.W.2d 416. In a results-oriented analysis, the majority fails to cite several well-established statutory interpretation rules. See majority op., ¶ 13. Specifically, the majority ignores the rule, which we have reiterated on several occasions this term, that when determining legislative intent, we first look to the language of the statute itself. State v. Delaney, 2003 WI 9, ¶ 13-14; VanCleve v. City of *142Marinette, 2003 WI 2, ¶ 17, 258 Wis.2d 80, 655 N.W.2d 113. As we clearly noted in VanCleve:

.. . [I]t is a well established rule that if the language of a statute is clear and unambiguous, the court must not look beyond the statutory language to ascertain the statute's meaning. Only when statutory language is ambiguous may we examine other construction aids such as legislative history, context, and subject matter.

VanCleve, ¶ 17 (citing State v. Waalen, 130 Wis.2d 18, 24, 386 N.W.2d 47 (1986). Accordingly, if the meaning of the statute is clear on its face, this court will not look outside the statute in applying it.

¶ 64. The majority disregards this first step. Indeed, the majority never explicitly finds the language of Wis. Stat. § 980.02(1) ambiguous. Instead, the majority uses phrases such as: "[t]he language of § 980.02(1) could have more clearly delineated the limits of the district attorney's authority," and "if the legislature intended the State's broad interpretation, it could have omitted the reference to the DOJ's ability to file. ..." See majority op. at ¶ 21 (emphasis added). The majority does not state that the statutory language is ambiguous. Instead, without doing so, the majority engages in an analysis of the legislative history.

¶ 65. As noted above, the rules of statutory interpretation are clear. Unless the language is ambiguous, we are to apply the clear language of the statute. Moreover, if the language is clear, the rules of statutory interpretation prohibit us from doing exactly what the majority does. Unless the statutory language is established as ambiguous,1 we are prohibited from engaging *143in an analysis of whether the legislature could have worded the statute differently, or whether it could have omitted certain references.

*144worded the statute differently, or whether it could have omitted certain references.

¶ 66. Following these well-established rules of statutory interpretation, I agree with the court of appeals that Wis. Stat. § 980.02(1) is clear on its face. As the court of appeals noted:

If the DOJ does not file a petition, subsec. (b) allows the district attorney for the county where the person was convicted of the sexually violent offense or where that person will reside or be placed upon release from imprisonment to file a petition for commitment. Wis. Stat. § 980.02(l)(b). We note that § 980.02(1) neither requires the DOC to make a referral to the DOJ nor the latter to expressly decline filing as a condition precedent to the district attorney instituting proceedings. The sole requirement is that the DOJ, under whatever circumstances, did not file a petition.
We conclude that Wis. Stat. § 980.02(l)(b) unambiguously permits the district attorney in either the county of conviction or of anticipated residence or placement upon discharge to file a Wis. Stat. ch. 980 petition in the event the DOJ does not. Here it is undisputed that the department did not file a petition, but the district attorney for the county in which Byers would have resided upon discharge did.

State v. Byers, Nos. 99-2441 & 00-0454, unpublished slip op. at ¶ 18-19 (Wis. Ct. App. Jan. 23, 2001).

¶ 67. For the reasons discussed, I respectfully dissent.

¶ 68. I am authorized to state that Justice DIANE S. SYKES joins this dissent.

The Chief Justice Abrahamson's concurrence claims that language is often ambiguous. See Chief Justice Abrahamson's *143concurrence at ¶ 52: "language, especially statutory language, is often ambiguous." If this was correct, we could never simply "appl[y] the law as written," as we have previously done. See State ex rel. Brookside Poultry Farms v. Jefferson County Bd. of Adjustment, 131 Wis. 2d 101, 113, 388 N.W.2d 593 (1986) ("The statute and ordinance clearly state that persons aggrieved, not parties aggrieved, have a right to appeal. This court applies the law as written.") (emphasis in original). Instead, we would as a rule in every case, start with the assumption of ambiguity, and then begin a search for extrinsic sources of meaning. To the contrary, we have repeatedly held that the statutory language at issue was quite clear (and therefore not "often ambiguous"). See, e.g., State v. Wideman, 206 Wis. 2d 91, 102, 556 N.W.2d 737 (1996) (Wis. Stat. § 346.65(2)(c) is "clear and unambiguous"); Nicholson v. Home Ins. Cos., 137 Wis. 2d 581, 593, 405 N.W.2d 327 (1987) ("The operative language of sec. 807.01(4) clearly indicates that an offer of settlement under sec. 807.01(4) must be made under sec. 807.01.... Sec. 807.01(3) makes it clear ..." The statute also makes clear that...").

See also Stephenson v. Universal Metrics, Inc., 2002 WI 30, 251 Wis. 2d 171; 641 N.W.2d 158 ("The immunity statute does not apply in the present case because imposing liability on Kreuser for breaking his promise is unrelated to and outside of the clear and unambiguous scope of this immunization statute.") (Abrahamson, C.J., dissenting).

If language were "often ambiguous," it is not at all clear how the language a court might examine regarding the scope, history, context, and purpose of a statute would be at all helpful. In fact, "one Supreme Court Justice [has] remarked that because the legislative history is often ambiguous, 'it is clear that we must look primarily to the statutes themselves to find the legislative intent,1 rather than the other way around." See Kenneth R. Dortzbach, Legislative History: The Philosophies of Justices Scalia and Breyer and the Use of Legislative History by the Wisconsin State Courts, 80 Marq. L. Rev. 161,162 (1996); Chief Justice Abrahamson's concurrence, ¶ 46 n.3.