“While we share Kaster’s and the trial court’s concerns that interpreting this phrase to include delivery persons or ushers at sporting events might not be precisely what the legislature intended by creating Wis. Stat. sec. 948.095, this problem is for the legislature, not us, to remedy.”
Judge Thomas Cane
Any person who provides any services to a school can be convicted under Section 948.095, which prohibits sexual contact with a student by a school instructional staff person, the Wisconsin Court of Appeals held on April 22.
David R. Kaster was the boys and girls swimming coach at Ashwaubenon High School during the 1998-99 school year. He was not a teacher, nor did he hold any other position at the school, but held separate contracts for the boys and girls teams.
Kaster and the school district entered into new contracts every year, and the 1998-99 school year contracts were specifically for that term. However, he had no official duties after the end of the swim seasons.
During the school year, Kaster had sexual contact with four members of the girls team. One of the incidents occurred after the end of the swim season, but still during the school year.
Among the charges against Kaster were four counts of sexual assault of a student by a school instructional staff person, in violation of sec. 948.095. One of the charges was for the post-season incident.
The statute made it a Class D felony for any school staff person to have sexual contact or intercourse with a child who has attained the age of 16 (under truth-in-sentencing, it is now a Class H felony). The statute defines school staff as any person who provides services to a school or a school board, including an employe of a school or a school board and a person who provides services to a school or a school board under a contract.
Kaster submitted jury instructions for sec. 948.095, requesting that, to find him guilty, the jury must find that the defendant was providing services under a contract to be the high school swimming coach. The requested instructions also read, under contract means the person has an ongoing legally enforceable obligation to provide services as specified under the terms and conditions of a valid contract.
Kaster further requested that the jury be instructed that a contract is ambiguous if it is susceptible to two different meanings, and ambiguous contracts must be resolved against the drafter. Finally, Kaster proposed that the jury be instructed that sec. 948.095 does not apply to volunteers.
Kaster claimed that he was no longer under contract at the time of the incident because the season was over, and that any services he may have been providing were voluntary and outside the scope of the statute.
Brown County Circuit Court Judge Mark A. Warpinski refused the proposed instructions, and opted to give the standard instruction, Wis JI-Criminal 2139.
What the court held
Case: State of Wisconsin v. David R. Kaster, No. 02-2352-CR.
Issue: Is sec. 948.095, which prohibits sexual assault of a student by a school staff member, limited to “employees” and persons “under contract” with the school.
Holding: No. The definition of “school staff” unambiguously includes any person who provides any services to the school, including volunteers.
Counsel: Steven L. Miller, River Falls, for appellant; Edwin J. Hughes, Madison; John P. Zakowski, Green Bay, for respondent.
In relevant part, that instruction states, The fourth element requires that the defendant was a member of the school staff of the school or school district in which that person named in that Count was enrolled as a student. School staff means any person who provides services to a school or school board, including an employe of a school or school board and a person who provides services to a school or
a school board under a contract.
Warpinski concluded that, while the statute was not intended to cover someone who delivers soda to the school … or reseals the gym floor, it was intended to cover a volunteer coach, and applied regardless of the existence of a contract.
The jury convicted Kaster of various counts, including the post-season assault, and Kaster appealed that conviction, but the court of appeals affirmed in a decision by Judge Thomas Cane.
Definition of School Staff
The court concluded that the plain definition of school staff unambiguously encompasses any person who provides services to a school.
Kaster argued that the definition of school staff must be limited to school employees, contract personnel, or similarly situated paid service providers of ascertainable duration, relying on the rule of construction, ejusdem generis, which limits the meaning of general words to specific words associated with the general words. Kaster contended the phrase any person who provides services must be limited by the more specific employe and under contract, both of which suggest a paid position of ascertainable duration.
Kaster argued it would be absurd and unconstitutional to apply the statute to literally anyone who provides services to a school. He also asserted it would render the terms employee and under contract superfluous, and include people the legislature did not intend to within the statute, unless the definition is limited in that way.
Kaster also argued that the statute must be construed to exclude volunteer services, because an earlier draft included volunteers, but the final draft did not.
The court rejected each argument. Noting that the statute does not implicate any constitutionally protected interests, the court concluded it cannot be considered unconstitutionally overbroad.
The court acknowledged that its interpretation arguably makes the terms employe and under contract superfluous. However, it found that Kasters interpretation does also, because paid position of ascertainable duration would necessarily include an employe and persons under contract.
Instead, the court decided to view the terms employe and persons under contract as examples of persons included within the group of people that provide services to a school or school board.
The court reasoned, These phrases are illustrative, and nothing in the statutes language suggests they were meant to limit the definition of a person who provides services. We agree this group is broad and, while we share Kasters and the trial courts concerns that interpreting this phrase to include delivery persons or ushers at sporting events might not be precisely what the legislature intended by creating Wis. Stat. sec. 948.095, this problem is for the legislature, not us, to remedy.
The court also rejected Kasters argument that volunteers are outside the scope of the statute. Although the court ack-nowledged that the removal of volunteers from the final draft is indicative of legislative intent that they not be included, the court found the statute unambiguous, and thus, legislative history cannot be considered.
Accordingly, the court affirmed, holding that the jury instructions were proper, and that the evidence was sufficient to support the conviction. The court noted that Kasters contract was for the entire 1998-99 school year, and that Kaster engaged in out-of-season contact with the school for planning, scheduling, budgeting and evaluation purposes.
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David Ziemer can be reached by email.