State v. Sweat

ANN WALSH BRADLEY, J.

¶ 37. (dissenting). I dissent. The question presented is whether the civil or the criminal statute of limitations applies in a restitution proceeding. I conclude that whether considered alone or in conjunction with other statutory provisions, Wis. Stat. § 973.20(14)(b) unambiguously mandates application of the relevant civil statute of limitations to restitution proceedings. Accordingly, I would affirm the decision of the court of appeals.

¶ 38. The relevant statute, § 973.20(14)(b), provides that in a restitution hearing, a "defendant may assert any defense that he or she could raise in a civil action for the loss sought to be compensated." This court must interpret § 973.20(14)(b) to determine whether the phrase "any defense that he or she could raise in a civil action" applies to a civil statute of limitations defense or to a criminal statute of limitations defense.

*430¶ 39. When interpreting a statute, this court seeks to identify and effectuate the intent of the legislature. Stockbridge School Dist. v. DPI, 202 Wis. 2d 214, 219, 550 N.W.2d 96 (1996). We look first to the plain meaning of the statutory text. If the meaning of the statutory text is unambiguous, we need not look further. Id. at 220. However, statutory language may be rendered ambiguous by the interaction between separate, related statutes, or by the interaction of words and structure of a single statute. F.P.R. v. J.M., 137 Wis. 2d 375, 386, 404 N.W.2d 530 (1987).

¶ 40. I agree with the majority when it states that § 973.20(14)(b) "[is] unambiguous on its own," and when read alone "appears to be clear and unambiguous." Majority op. at 417, 428. There is no dispute that the statute of limitations is a defense in criminal and civil actions. Thus, the statute of limitations meets the definition of "any defense." The question is whether it is the civil statute of limitations or the criminal statute of limitations that can be raised as a defense in a civil action. The answer is apparent. Only the civil statute of limitations can be raised as a defense in a civil action; the criminal statute of limitations is not available as a defense in a civil action. The plain language of § 973.20(14)(b) mandates application of the civil statute of limitations in restitution proceedings.

¶ 41. I disagree with the majority's conclusion that the relevant language in § 973.20(14)(b) becomes ambiguous when considered in the context of the remainder of the statutory provision and other relevant statutes. The majority concludes that the relevant portion of § 973.20(14)(b) is ambiguous because: 1) the term "any defense" is neither self-defining nor defined; 2) the legislative history and placement of the provision indicate that " 'any defense' is applicable only *431toward the defense of the amount of the loss at issue"; 3) courts are statutorily authorized to waive rules of "practice, procedure, pleading or evidence" when conducting restitution proceedings; and 4) other language in § 973.20 makes "clear that restitution hearings are not to be conducted like a civil trial." I find unpersuasive each of the bases for the majority's ambiguity determination.

¶ 42. The majority's assertion that the phrase " 'any defense' as used in the statute is neither self-defining nor defined" adds nothing to the analysis and is incorrect. Majority op. at 417. Few, if any, words are "self-defining." The definition of "any" may be found in a dictionary, and a partial list of civil "defenses" is provided in § 802.02(3), which includes the statute of limitations. We have repeatedly held that resorting to dictionary or statutory definitions is not a basis for determining that a statutory term is ambiguous. Girouard v. Circuit Court for Jackson County, 155 Wis. 2d 148, 156, 454 N.W.2d 792 (1990); State ex rel. Smith v. City of Oak Creek, 139 Wis. 2d 788, 798 n.6, 407 N.W.2d 901 (1987). ‘Vifiiat does "any defense" mean in this context? The term is further defined by the words following it: "any defense" is a defense that a defendant "could raise in a civil action." § 973.20(14)(b). As I have already noted, a civil statute of limitations is such a defense, while a criminal statute of limitations is not.

¶ 43. The majority asserts that the legislative history and the placement of the provision in question show that the "any defense" language is ambiguous and refers only to defenses to the amount of restitution. The majority incorrectly uses legislative history to render the statute ambiguous. This court has consistently stated that: 1) resort to legislative history is inappropriate in the absence of a finding of ambiguity; *432and 2) legislative history cannot be used to render statutory language ambiguous. See, e.g., Cynthia E. v. La Crosse County Human Services Dep't., 172 Wis. 2d 218, 229, 493 N.W.2d 56 (1992); Smith, 139 Wis. 2d at 798; Aparacor, Inc. v. DILHR, 97 Wis. 2d 399, 403, 293 N.W.2d 545 (1980). While I find no basis for resorting to legislative history, I address briefly the majority's reliance on it for the proposition that a defendant in a restitution hearing may raise only those civil defenses that speak to amount of restitution.

¶ 44. The majority notes that 18 U.S.C. § 3664(d) deals only with the amount of restitution, and reasons that because § 973.20(14)(a)-(c) was patterned after the federal statute, the "any defense" language at issue in this case must also speak only to the amount of restitution. Far from aiding the majority, the text of 18 U.S.C. § 3664(d) actually undermines the conclusion that the legislature intended "any defense" to mean only those defenses that affect the amount of a victim's loss. Unlike § 973.20(14)(a)-(c), 18 U.S.C. § 3664(d) states that its provisions "do[ ] not address the defendant's liability for restitution." Thus, by its express terms, 18 U.S.C. § 3664(d) deals only with the amount of restitution.

¶ 45. In creating § 973.20(14)(a)-(c), our legislature borrowed freely from 18 U.S.C. § 3664(d), yet refrained from including any of the federal statute's language that would limit a defendant to only those defenses relating to the amount of restitution. Moreover, as the majority correctly notes, the legislature did not take the "any defense" language from 18 U.S.C. § 3664(d); the language was already part of Wisconsin's then existing restitution statute. See Wis. Stat. § 973.09(lm)(a) (1981^82).

*433¶ 46. Thus, the legislative history shows that our legislature did not adopt the limiting language of 18 U.S.C. § 3664(d). Instead, the legislature adopted language that the majority concedes "appears" to unambiguously allow a defendant to raise a civil statute of limitations in a restitution proceeding. The majority nevertheless concludes that the legislative history endorses the majority's limitation on the phrase "any defense."

¶ 47. Continuing its legislative history inquiry, the majority notes that the statutory predecessor to § 973.20(14) contained the same "any defense" language that the present restitution statute carries, and that each version of the statute places the "any defense" language after sentences dealing only with the amount of restitution. According to the majority, the placement of the "any defense" provision:

seems to clearly indicate that the "any defense" to which the statute refers means any defense to the amount of restitution ordered by the trial court, or "any defense. . .for the loss sought to be compensated."

Majority op. at 427 (omission in the original).

¶ 48. The majority's alternative interpretations of "any defense" are infirm because they necessitate a rewriting of the statute. In order to reach its conclusion that "any defense" means "any defense to the amount of restitution ordered by the trial court," the majority must create statutory text out of whole cloth. In order to reach the conclusion that "any defense" means "any defense. . .for the loss sought to be compensated," the majority must delete the important phrase "that he or she could raise in a civil action," the very statutory language at issue in this case. Under either view, the *434majority rewrites the statute in order to give meaning to its placement argument.

¶ 49. It is true that each version of the restitution statute has the "any defense" provision preceded by sentences dealing only with the amount, rather than the fact, of restitution liability. However, in both the old and new versions of the statute, the legislature has refrained from so limiting the sentence containing the "any defense" language. The legislature could easily have provided that: "[t]he defendant may assert any civil defense that would reduce the amount of loss sought to be compensated." Significantly, it did not.

¶ 50. The majority next relies on Wis. Stat. § 973.20(14)(d), which provides that a court "shall conduct the [restitution] proceeding so as to do substantial justice between the parties according to the rules of substantive law and may waive the rules of practice, procedure, pleading or evidence. . . ." The majority derives from this language the following proposition:

Technical or procedural defenses which might be proper in a civil proceeding may be asserted only to the extent that they are not inconsistent with the informal nature of a restitution proceeding and with the general policy goal of achieving "substantial justice."

Majority op. at 425. The majority implies that § 973.20(14)(b) is ambiguous because a literal reading of the provision would allow a "technical or procedural defense" like the civil statute of limitations to upset the informal nature of a restitution proceeding.

¶ 51. A statute of limitations defense is not a "technical" or a "procedural" defense; it is substantive law. See Modica v. Verhulst, 195 Wis. 2d 633, 644, 536 N.W.2d 466 (Ct. App. 1995), citing Betthauser v. Medi*435cal Protective Co., 172 Wis. 2d 141, 493 N.W.2d 40 (1992).

The limitation of actions is a right as well as a remedy, extinguishing the right on one side and creating a right on the other, which is as of high dignity as regards judicial remedies as any other right and it is a right which enjoys constitutional protection. This court views statutes of limitation as substantive statutes because they create and destroy rights.

Betthauser, 172 Wis. 2d at 149 (citations and emphasis omitted). Section 973.20(14)(d) requires that the restitution proceedings be conducted "according to the rules of substantive law...." It does not authorize a court to waive substantive statutory rights, one of which is the civil statute of limitations set forth in § 893.51(1). I therefore conclude that a court's authority under § 973.20(14)(d) to waive "the rules of practice, procedure, pleading or evidence" has no bearing on the issue of whether the civil or the criminal statute of limitations applies in a criminal restitution proceeding.

¶ 52. I also reject the majority's invocation of the specter of a "restitution proceeding distracted.. .by the technicalities of civil tolling and discovery matters." Majority op. at 425. The § 893.51(1) civil statute of limitations is no more difficult to apply than the criminal statute of limitations prescribed in Wis. Stat. § 939.74(1). Both "run" after six years. The § 939.74(1) period is tolled during the time that a criminal defendant is "not publicly a resident within this state," while the § 893.51(1) period is tolled while a defendant is out of state and not subject to personal jurisdiction under Wis. Stat. § 801.05. See Wis. Stat. § 893.19. In addi*436tion, the restitution statute expressly provides that "[discovery is not available except for good cause shown." § 973.20(14)(d). I therefore find the majority's concern with "distracting civil technicalities" more imaginary than real.

¶ 53. The majority also contends that § 973.20(14)(b) is ambiguous because other provisions in § 973.20 make "clear that restitution hearings are not to be conducted like a civil trial." Majority op. at 417.1 disagree with the majority's reading of § 973.20, because restitution proceedings do parallel civil proceedings in significant ways. For example, § 973.20(5)(a) provides that a defendant may be required to pay "special damages. . .which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime. . . ." Also, the victim must demonstrate the amount of his or her loss by the preponderance of the evidence. § 973.20(14)(a). The same preponderance of the evidence burden is placed on the defendant for purposes of determining his or her financial wherewithal. § 973.20(14)(b). Furthermore, the State is not required to provide appointed counsel to indigent restitution defendants "unless the hearing is held at or prior to the sentencing proceeding, the defendant is incarcerated when the hearing is held or the court so orders." Id. The very provision at issue in this case, which allows a defendant to raise civil defenses in a restitution proceeding, anticipates that restitution hearings will be conducted in a quasi-civil manner.

¶ 54. Finally, the majority concludes that a literal reading of § 973.20(14)(b) would work an absurd result, because application of a civil statute of limitations would allow some crime victims to recover at least a portion of their pecuniary losses, while other victims' *437claims would be time-barred. As the majority correctly notes, when the State seeks restitution, it does so on behalf of victims who would otherwise be required to bring a civil claim against the defendant. Majority op. at 423. It is not absurd that the State, claiming pecuniary damages on behalf of crime victims, would be held to the same statute of limitations that the victims would encounter in a civil action seeking to recover the loss compensated in restitution. Indeed, one might reasonably assert that it is the majority's reading of the statute that achieves an anomalous result, by reviving in a restitution proceeding the pecuniary claims of victims that would be time-barred in a civil action.

¶ 55. . The majority states that it "only makes sense that the same statute of limitations that applies in the underlying criminal proceeding. . .should also apply in the restitution proceedings." Majority op. at 429. It advances the position that "substantial justice" requires that each victim be compensated. Majority op. at 425. In the absence of § 973.20(14)(b), the majority's reasoning might be persuasive. However, in advancing this common sense and substantial justice approach, the majority ignores the plain directive of the statute. The language of § 973.20(14)(b) unambiguously calls for the application of the civil statute of limitations to restitution proceedings.

¶ 56. In summary, because a criminal statute of limitations is not a "defense that [a defendant] could raise in a civil action," I conclude that § 973.20(14)(b) unambiguously requires the application of the relevant civil statute of limitations in a restitution proceeding. As such, the defendant in this case is entitled to invoke the § 893.51(1) statute of limitations. Accordingly, I would affirm the decision of the court of appeals.

*438¶ 57. For the foregoing reasons, I respectfully dissent.

¶ 58. I am authorized to state that Chief Justice Shirley S. Abrahamson joins this opinion.