Private complaints don’t need explicit refusal

Listen to this article

“Scope, context, and purpose are perfectly relevant to a plain-meaning interpretation of an unambiguous statute as long as the scope, context, and purpose are ascertainable from the text and structure of the statute itself, rather than extrinsic sources, such as legislative history.” Justice Diane S. Sykes Wisconsin Supreme Court

The Wisconsin Supreme Court held on May 25 that a district attorney need not explicitly refuse to bring a prosecution before a court can order issuance of a complaint, pursuant to sec. 968.02(3).

The court also used the case as a vehicle to set forth new rules of statutory construction.

Until August 2001, Michele Tjader and Sarah Schmeiser were employed by Kalal and Associates, a Madison law firm owned by Ralph Kalal. Kalal’s wife, Jackie, was the office manager for the firm.

On Feb. 25, 2002, Tjader filed a motion in Dane County Circuit Court requesting the issuance of a criminal complaint against the Kalals pursuant to sec. 968.02(3).

The motion alleged that the Kalals stole funds withheld for Tjader’s and Schmeiser’s 401K retirement accounts.

Tjader asserted that she had reported the alleged theft to the City of Madison Police Department in August 2001, and that in November 2001, she had written to the Dane County District Attorney asking him to bring charges. The motion stated that the district attorney responded by telling her she “was free to proceed legally in whatever manner she believed necessary.” The motion also asserted, generally, that the district attorney “has refused to charge the defendants.”

The motion was assigned to Portage County Circuit Court Judge John V. Finn, who held an evidentiary hearing. Jason Hanson, a Dane County Deputy District Attorney, advised Judge Finn that he thought the district attorney’s response to Tjader qualified as a refusal to prosecute under the statute.

Judge Finn found that probable cause existed to believe the Kalals were guilty of theft, and directed the filing of a complaint consistent with that proposed by Tjader. Anthony A. Tomaselli was appointed special prosecutor.

The Kalals then filed a motion to reconsider and discharge the special prosecutor. Tomaselli responded by arguing that the Kalals had no standing to challenge the Finn’s order, and Judge Finn agreed.

The Kalals then sought a supervisory writ in the court of appeals, pursuant to sec. 809.51, but the court declined to issue the writ. The Supreme Court accepted review, and affirmed in a decision by Justice Diane S. Sykes. Both Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley wrote concurring opinions.

Standing

The court concluded that sec. 968.02(3) does not permit the person who is the subject of a proposed prosecution to participate in the case.

The statute provides: “If a district attorney refuses or is unavailable to issue a complaint, a circuit judge may permit the filing of a complaint, if the judge finds there is probable cause to believe that the person to be charged has committed an offense after conducting a hearing. If the district attorney has refused to issue a complaint, he or she shall be informed of the hearing and may attend. The hearing shall be ex parte and without the right of cross-examination.”

The court concluded, “The statute ex-pressly specifies an ex parte hearing and no right of cross-examination. If the Kalals have no right or standing to be heard at the hearing, they cannot claim a right or standing to be heard on a reconsideration motion.”

The court noted that its decision does not mean that a judge’s decision to issue a complaint is completely unreviewable, because a defendant named in such a complaint has the same opportunity to challenge the legal and factual sufficiency of the complaint as any other defendant, in the criminal proceeding.

Supervisory Writs

The court further found that a prerequisite for a supervisory writ — a violation of a “plain duty” is not present.

Rejecting the Kalals’ argument that a circuit court judge has a plain duty to correctly find facts and apply the law, the court concluded, “The supervisory writ … serves a narrow function: to provide for the direct control of lower courts, judges, and other judicial officers who fail to fulfill non-discretionary duties, causing harm that cannot be remedied through the appellate review process. To adopt the Kalals’ interpretation of the plain duty requirement in supervisory writ procedure would transform the writ into an all-purpose alternative to the appellate review process.”

The court added, “the statutory prerequisite that the judge find a refusal to prosecute by the district attorney does not impose upon the circuit judge a plain, clear, non-discretionary, and imperative duty of the sort necessary for a supervisory writ.”

Refusal

Although the court found the Kalals lacked standing, the court nevertheless addressed the proper interpretation of the term “refusal,” because it is a question likely to recur but evade review, inasmuch as a decision under the statute is not itself directly appealable.

The court found that the statute is clear and unambiguous, using a dictionary definition of “refuse”: “to indicate unwillingness to do, accept, give, or allow.”

The court stated, “As the term is ordinarily understood, a ‘refusal’ involves a decision to reject a certain choice or course of action. This definition is reasonable in the statutory context and consistent with the manifest statutory purpose. Accordingly, the statute’s meaning is plain, there is no ambiguity to clarify, and no need to consult extrinsic sources such as legislative history.”

The court found, “This common and accepted definition implies more then mere inaction, but does not necessarily require an express statement from the district attorney. … a refusal can be open and explicit, as in a statement to that effect, or it can be indirect and inferred, as in a long silence or period of inaction that, under the totality of the circumstances, gives rise to a reasonable inference that the district attorney intends not to act.”

The court added, “This plain-meaning interpretation of ‘refuses’ preserves the hierarchy specified in the statute — the district attorney’s charging authority is primary, the circuit judge’s, secondary — and is reinforced by the Judicial Council Committee Note, which characterizes this subsection as a ‘check’ on the district attorney’s charging power.”

In contrast, an interpretation that required an explicit statement of refusal would defeat the purpose of the statute. The court noted, “The district attorney could block the use of Wis. Stat. sec. 968.02(3) by simply responding to the complainant in vague and uncertain terms.”

Applying that definition, the court affirmed the conclusion that the district attorney had refused to prosecute, based on the length of time, and the indication that Tjader was free to pursue whatever legal recourse she wished.

Statutory Interpretation

Before deciding the meaning of the word “refuse,” however, the court issued guidance for statutory construction generally, something that has divided the court for years, and for which, since the decision earlier this term, in Hubbard v. Messer, 2003 WI 145, 267 Wis.2d 92, 673 N.W.2d 676, has been in a state of confusion.

The court relied heavily on Suther-land’s Statutory Construction, and began with the following distinction: “There are two accepted methods for interpretation of statutes. The first, determining legislative intent, looks to extrinsic factors for construction of the statute. The second, determining what the statute means, looks to intrinsic factors such as punctuation or common meaning of words for construction of the statute. 2A Suther-land, Statutory Construction (4th ed. 1973), secs. 45.05, 45.07 and 45.14.”

Elucidating the distinction between intrinsic and extrinsic factors, the court wrote, “Generally when legislative intent is employed as the criterion for interpretation, the primary emphasis is on what the statute meant to members of the legislature which enacted it. On the other hand, inquiry into the ‘meaning of the statute’ generally manifests greater concern for what members of the public to whom it is addressed, understand.”

The court added, “[e]xtrinsic aids . . . are useful to decisions based on the intent of the legislature, while intrinsic aids have greater significance for decisions based on the ‘meaning of the statute’ as understood by people in general.”

Accordingly, the court set forth the following framework: “Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We assume that the legislature’s intent is expressed in the statutory language. Extrinsic evidence of legislative intent may become relevant to statutory interpretation in some circumstances, but is not the primary focus of inquiry. It is the enacted law, not the unenacted intent, that is binding on the public. Therefore, the purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect.”

The court stated that, if the meaning of the statute is plain, the inquiry is at an end. Language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical meaning.

The court added, “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. … Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage. ‘If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statue is applied according to this ascertainment of its meaning.’ Where statutory language is unambiguous, there is no need to consult extrinsic sources of interpretation, such as legislative history (cites omitted).”

Defining ambiguity, the court wrote, “a statute is ambiguous if it is capable of being understood by reasonably well-informed persons in two or more senses. It is not enough that there is a disagreement about the statutory meaning; the test for ambiguity examines the language of the statute ‘to determine whether “well-informed persons should have become confused,” that is, whether the statutory … language reasonably gives ri
se to different meanings.’”

The court added, “scope, context, and purpose are perfectly relevant to a plain-meaning interpretation of an unambiguous statute as long as the scope, context, and purpose are ascertainable from the text and structure of the statute itself, rather than extrinsic sources, such as legislative history.”

The Concurrences

Chief Justice Abrahamson wrote separately, agreeing that the district attorney refused to bring charges, within the meaning of the statute, but concluding that the lead opinion’s discussion of statutory construction “will be difficult to understand … because it works at cross purposes in several respects.”

	Related Links Wisconsin Court System Related Article Case Analysis

Abrahamson’s largest objection was the majority’s deletion of “history” from the list of “scope, history, context, and purpose of the statute” as permissible sources to be considered, even if there is no ambiguity.

Abrahamson wrote, “I part company with the majority opinion when it declares that extrinsic sources (not defined) such as legislative history may be used only when the statutory language is ambiguous or when the legislative history supports (but does not contradict) the plain meaning of the statute. I have criticized this approach to plain meaning, ambiguity, and legislative history before. Language is often ambiguous; the distinction between ‘plain’ and ‘ambiguous’ is in the eye of the beholder; and both words too often are conclusory labels a court pins on a statute, making its decision appear result-oriented.”

Abrahamson iterated her statement in a concurrence to Fox v. Catholic Knights Ins. Soc’y, 2003 WI 87, that, “a court may examine history without declaring an ambiguity and that a court ‘must engage in an analysis of both the evidence that supports a given interpretation as well as the evidence that contradicts a given interpretation.’”

Justice Bradley also wrote separately, agreeing that the district attorneys’ actions constituted a refusal, but stating, “Although I commend both the majority and concurrence for their endeavors, I ultimately join neither.”

Click here for Case Analysis.

David Ziemer can be reached by email.