State ex rel. Girouard v. Circuit Court for Jackson County

Decision Date10 May 1990
Docket NumberNo. 88-2047-W,88-2047-W
Citation155 Wis.2d 148,454 N.W.2d 792
PartiesSTATE of Wisconsin ex rel. Richard Arthur GIROUARD, Petitioner, v. CIRCUIT COURT FOR JACKSON COUNTY, Honorable Robert W. Radcliffe, Presiding, Respondent.
CourtWisconsin Supreme Court

Martha E. Gaines, argued, Jack Longert, Susan Podebradsky and Legal Assistance for Institutionalized Persons Program, Madison, for petitioner.

James H. McDermott, Asst. Atty. Gen., with whom on the brief, was Donald J. Hanaway, Atty. Gen., for respondent.

HEFFERNAN, Chief Justice.

This is a review of a decision of the court of appeals, 1 which affirmed an order of the circuit court for Jackson county, Robert W. Radcliffe, circuit judge, holding that sec. 814.29(1), Stats., did not authorize a waiver of payment of fees for a transcript to be used to pursue an appeal from an order denying Girouard, an indigent, visitation rights. We hold that sec. 814.29(1) authorizes the waiver, reverse the court of appeals, and direct that the matter be remanded to the circuit court for the purpose of making appropriate findings in respect to Girouard's eligibility under the conditions set forth in sec. 814.29(1) for the waiver of transcript fees.

We digress from the discussion of the principal concern of this opinion--whether sec. 814.29(1), Stats., authorizes a trial judge to waive the requirement for payment of a fee for a trial transcript at the request of an appealing indigent who has arguable reason to believe he is entitled to redress on the appeal--to consider the unusual posture of this case.

On December 26, 1984, a divorce judgment was entered which provided, inter alia, that Girouard was not to be allowed visitation rights with the minor child of the parties. In December of 1986, Girouard petitioned the court for a revision of the judgment that would permit visitation. A hearing on his motion to revise the judgment was heard in January of 1987. Following some interim orders, the court on April 7, 1987, denied Girouard's motion. On August 6, 1987, Girouard brought a motion to reconsider the denial of the revision of the judgment. After hearing, the court, on July 29, 1988, denied the reconsideration, thus continuing to prohibit Girouard visitation rights with his daughter.

An appeal from this denial of the motion for reconsideration was taken by filing a notice of appeal in circuit court on October 27, 1988. On November 2, 1988, Girouard filed a petition for supervisory writ to compel the circuit court to grant a waiver of payment of transcript fees, a waiver that had previously been denied by the circuit court.

The case arises in the procedural posture where the petition for the supervisory writ was filed in November of 1988 and the notice for the appeal from the principal order of July 29, 1988, was filed on October 27, 1988.

For reasons that are not clear, the court of appeals chose to treat the petition for supervisory writ as the appeal from the final order denying the waiver of the transcription fees. As a result, the substantive appeal from the final order of July 29 1988, denying revision of visitation rights, remains pending. 2

The statute in question, sec. 814.29(1), Stats., is unambiguous. That statute provides:

814.29 Security for costs, service and fees for indigents. (1) Any person may commence, prosecute or defend any action or proceeding in any court, or any writ of error or appeal therein, without being required to give security for cost or to pay any service or fee, upon filing in the court, and receiving approval of the affidavit by the court, his or her affidavit that because of his or her poverty the person is unable to pay the costs of the action or proceeding, or any writ of error or appeal therein, or to give security for the same, and that the person believes that he or she is entitled to the redress that he or she seeks in the action or proceeding, or writ of error or appeal, and setting forth briefly the nature of the cause or appeal, or defense. If the person subsequently recovers costs, the recovered amount shall first be applied to pay any service and filing fees which were waived under this subsection. This section does not prevent the affiant from recovering any service or fees waived under this section. If the person subsequently recovers these costs, the recovered amount shall be used to pay any costs waived under this section.

The question is whether Girouard, an indigent in a civil case, is entitled to a waiver of transcription fees on an appeal to the court of appeals if, in addition to being an indigent, he can satisfy the trial judge that the person "believes that he or she is entitled to the redress that he or she seeks in the ... appeal." The answer is unequivocally "yes." Accordingly, we reverse.

The statute on its face provides that:

Any person may commence ... any action ... in any court ... or appeal therein, without being required to ... pay any ... fee, upon filing in the court ... his or her affidavit that because of his or her poverty the person is unable to pay the costs of the action ... or appeal....

A simple question is presented: Is the charge for a transcript a "fee" referred to in sec. 814.29(1), Stats., and therefore waivable. Section 814.69(1) makes clear that reporter charges for a transcript are considered as fees. 3 That statute provides, "A court reporter shall collect the following fees." (Emphasis supplied.) Thereafter appears the rate of fee to be charged by court reporters for transcripts. Sections 814.69(1) and 814.29(1) were products of a single legislative act, ch. 317, Laws of 1981. It therefore is most unlikely that the legislature did not intend the words to have the same meaning. Section 814.69(1) defines the term, "fee," as it is used in the same legislative act.

Instead of looking to the language used in ch. 814, the court of appeals looked to legislative history to decide that "fees" as used in sec. 814.29(1), Stats., did not include transcript fees. It attempted to justify the use of legislative history by first concluding that the statute was ambiguous. It relied on statements of this court, taken out of context, that might indicate that, merely because the litigants disagree, as they do in the instant case, about the meaning of a statute, the statute is for that reason alone ambiguous. Principal reliance for this position is placed on this court's opinion in County of Milwaukee v. LIRC, 139 Wis.2d 805, 818, 407 N.W.2d 908 (1987). Our court did indeed use the language, "The parties to this case assign different interpretations to the scope and meaning of the exception, and therefore an ambiguity arises." However, that statement was preceded by a several-page discussion of the conflicting interpretations given to the statute by the Labor and Industry Review Commission and the County of Milwaukee. The quoted statement was followed by a careful discussion of the basis for the respective contentions of the parties. It was implicit in the cited case that this court found ambiguity because the parties had posed differing interpretations that were reasonable. To the extent that our shorthand statement of the well understood rule concerning ambiguity is subject to misinterpretation, we state that the more appropriate rule is alluded to in the other case cited by the court of appeals, K.L. v. Hinickle, 144 Wis.2d 102, 109, 423 N.W.2d 528 (1988), wherein we said that an ambiguity arises where the language "may be reasonably construed in two different ways." (Emphasis supplied.) The construction must be reasonable. Ambiguity does not arise just because persons unreasonably reach different conclusions. Lest there be any confusion, we reiterate the proper rule for determining ambiguity. As stated in State v. Wittrock, 119 Wis.2d 664, 669-70, 350 N.W.2d 647 (1984):

A statutory term is deemed ambiguous if reasonable persons could disagree as to its meaning. Kollasch v. Adamany, 104 Wis.2d 552, 561, 313 N.W.2d 47 (1981). However, whenever a case such as this reaches the court, it naturally follows that the parties will obviously disagree as to the term's meaning. The court, then, will look to the language of the statute itself to determine whether well-informed persons should become confused as to a term's meaning.

A question of statutory ambiguity can only arise when meaning is disputed, but it is inappropriate to conclude that each such dispute, ipso facto, leads to a conclusion of statutory ambiguity. If that were true, there could never be an unambiguous statute when the meaning of the legislature's words is in issue. Moreover, it has been repeatedly said that whether or not a statute is ambiguous is a question of law for the court. The litigants cannot limit the legal responsibility of the court to make that determination. The legal question for the court is simply, given the disagreement as to meaning, whether well informed persons should reasonably be confused about a statute's meaning. If the answer to that question is answered "yes" by the court, the statute is ambiguous. Only then is resort to legislative history appropriate.

Moreover, a court cannot resort to statutory history for the purpose of rendering an otherwise clear statute ambiguous. State ex rel. Smith v. Oak Creek, 139 Wis.2d 788, 407 N.W.2d 901 (1987). That is what the court of appeals did in this case. It looked to the prior statute and concluded that, under that statute, there could be no waiver of the requirement that payment for reporter's transcripts be paid for by the litigant. It then looked to the newly amended statute and reasoned, given its conclusion in respect to the prior statute, that the statutory changes were not sufficient to compel a different conclusion. This approach to statutory meaning reversed the appropriate order of reasoning. The court of appeals, having initially erred in respect to whether the present statute was ambiguous by relying only on the...

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