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Chapter 980 Case Analysis

For anyone interested in rules of statutory construction, the issue in this case provides a fascinating case study. Consider the history of the issue in this case.

On Dec. 8, 1998, in State v. Shaw, 226 Wis.2d 160, 594 N.W.2d 419, 1998 WL 842756, 98-1396, District III of the court of appeals held that the statute was unambiguous, and that a district attorney could file a petition, even in the absence of a referral from the DOC.

On the very next day, however, in State v. Thomas, 226 Wis.2d 159, 594 N.W.2d 418, 1998 WL 847720, 98-0152, District II of the court of appeals held that the statute unambiguously does not permit a district attorney to file a petition without a referral from the DOC.

Writing for the court, Judge Richard Brown reasoned, “Paragraph (a) allows the DOJ to file at the request of the DOC. … Paragraph (b) allows the district attorney to file, but only if the DOJ has not filed under para. (a). This last phrase is crucial: the district attorney may only file if the steps described in para. (a) have not been taken.

Thus, in order for filing power to extend to the district attorney, the DOC must have requested a petition and the DOJ must have refused. That is the procedure described by para. (a), and that is what must occur before filing power is vested in the district attorney under para. (b). To read the statute otherwise would essentially delete the words ‘under par. (a)’ from the statute. Surely if this had been the legislature’s intent it would not have inserted those words.”

Judge Brown also examined the legislative history, and concluded it supported his interpretation, for reasons similar to those given by the Supreme Court in the case at bar.

Both districts of the court of appeals apparently considered their opposing interpretations of the statute to be so clearly correct as to not warrant recommending the cases for publication.

The Wisconsin Supreme Court accepted review in Thomas, but the court was equally divided, resulting in affirmance. In re the Commitment of Thomas, 231 Wis.2d 241, 603 N.W.2d 84 (1999).

Then the case at bar was decided by the court of appeals, on Jan. 23, 2001, and District III again held the statute unambiguously does allow district attorneys to file on their own. This time, the court of appeals did recommend the decision be published, but the Publication Committee decided not to.

The Wisconsin Supreme Court again accepted review of the issue, but this time, reached a decision, holding that district attorneys could not initiate Chapter 980 proceedings.


Wisconsin Supreme Court

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Ironically, as Justice Crooks correctly noted in dissent, “the majority never explicitly finds the language … ambiguous. Instead the majority uses phrases such as: ‘[t]he language … 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…’ 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.”

Thus, after all the argument over whether the statute is ambiguous, and after each party expressing an opinion had maintained it was not, (and that its respective interpretation was the only one possible), the majority opinion resolved the case without ever even answering that question.

In addition, the 22 footnotes to Chief Justice Abrahamson’s concurrence are a virtual bibliography of literature on statutory interpretation.

While the decision in this case is unlikely to be cited much for the actual holding in the case — the holding is clear-cut, indistinguishable, and void of broad principles to extend in other cases — it
may be difficult to discuss statutory interpretation in the future without citing this case in some manner.

– David Ziemer

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David Ziemer can be reached by email.

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