State ex rel. Kalal v. Circuit Court, 02-2490-W.

• Decision Date: 25 May 2004
• Docket Number: No. 02-2490-W.,02-2490-W.
• Parties: IN the MATTER OF A PRIVATELY FILED CRIMINAL COMPLAINT: STATE of Wisconsin EX REL. Ralph A. KALAL and Jackie Kalal, Petitioners-Petitioners, v. CIRCUIT COURT FOR DANE COUNTY, the Honorable John V. Finn, presiding, Michele A. Tjader and Sarah Schmeiser, Respondents.
• Court: Wisconsin Supreme Court

271 Wis.2d 633

2004 WI 58

681 N.W.2d 110

IN the MATTER OF A PRIVATELY FILED CRIMINAL COMPLAINT:

STATE of Wisconsin EX REL. Ralph A. KALAL and Jackie Kalal, Petitioners-Petitioners, v. CIRCUIT COURT FOR DANE COUNTY, the Honorable John V. Finn, presiding, Michele A. Tjader and Sarah Schmeiser, Respondents.

No. 02-2490-W.

Supreme Court of Wisconsin.

Oral argument January 14, 2004.

Decided May 25, 2004.

For the petitioners-petitioners there were briefs by Waring R. Fincke, West Bend, and oral argument by Waring R. Fincke.

For the respondents, Circuit Court of Dane County and the Honorable John V. Finn, there was a brief by David C. Rice, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general, and oral argument by Anthony M. Tomaselli and Quarles & Brady, LLP, Madison.

¶ 1. DIANE S. SYKES, J.

In Wisconsin, the district attorney is primarily responsible for the decision whether to charge a person with a crime. Wisconsin Stat. § 968.02(1) states the general rule: "[e]xcept as otherwise provided in this section, a complaint charging a person with an offense shall be issued only by a district attorney of the county where the crime is alleged to have been committed."

¶ 2. There are exceptions to this rule, however, and this case arises from one of them. Subsection (3) of Wis. Stat. § 968.02 provides that "[i]f 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." Wis. Stat. § 968.02(3) (2001-02) (emphasis added.)¹

¶ 3. This case involves an effort by a Madison attorney to invoke this procedure against her former employer and his wife for allegedly stealing funds earmarked for her retirement account. The attorney, Michele Tjader, first complained to the Madison Police Department and the Dane County District Attorney about the alleged theft by Ralph and Jackie Kalal. Several months later, after receiving word from the district attorney that she "was free to proceed legally in whatever manner she believed necessary," Tjader filed a motion pursuant to Wis. Stat. § 968.02(3) for the issuance of a criminal complaint against the Kalals. A circuit judge authorized the filing of the proposed complaint.

¶ 4. The Kalals moved for reconsideration, arguing that the record did not establish that the district attorney had "refused" to issue a complaint as required by Wis. Stat. § 968.02(3). The circuit judge held that the Kalals had no standing to be heard, but addressed the motion anyway and denied it. The Kalals sought a supervisory writ in the court of appeals. The court of appeals declined to issue the writ because applicable writ standards had not been met. We accepted review, and now affirm the denial of the writ.

¶ 5. We agree with the circuit judge that because Wis. Stat. § 968.02(3) expressly specifies an ex parte proceeding, the person who is the subject of the proposed complaint may not obtain reconsideration of a judge's decision to permit its filing. We also agree with the court of appeals that applicable writ standards have not been established. Nevertheless, we reach the merits of the statutory interpretation question presented here, as it might otherwise evade review.

¶ 6. By its terms, Wis. Stat. § 968.02(3) requires the circuit judge to make two determinations prior to authorizing the issuance of a complaint: 1) that "the district attorney refuses or is unavailable to issue a complaint;" and 2) that "there is probable cause to believe that the person to be charged has committed an offense." The statute contemplates an exercise of discretion by the judge following these threshold determinations: the statute says the judge "may permit" the filing of a complaint. Wis. Stat. § 968.02(3).

¶ 7. Probable cause is not at issue here, nor is there a challenge to the judge's exercise of discretion to permit the filing of the complaint. We are confronted only with a question about the meaning of the term "refuses" in the statute. To "refuse" is to indicate unwillingness to do a thing. As the term is commonly understood, a "refusal" involves a decision to reject a certain choice or course of action. A "refusal," however, need not necessarily be expressed in particular or explicit terms to be understood as a refusal. A district attorney's refusal to issue a complaint for purposes of Wis. Stat. § 968.02(3) may be established directly or circumstantially.

¶ 8. We therefore reject the Kalals' argument that only a direct and unequivocal statement from the district attorney — e.g., "I refuse to issue a complaint" — can satisfy the statute. Such a literal reading would nullify the statute by permitting the district attorney to defeat the statutory procedure by responding to the complainant in equivocal or vague terms. On the other hand, to equate refusal with mere inaction runs contrary to the accepted meaning of the term and could undermine the district attorney's exercise of prosecutorial discretion or interfere with ongoing criminal investigations. The judicially-authorized criminal complaint under Wis. Stat. § 968.02(3) is not a substitute for the district attorney's exercise of charging discretion. Rather, it operates as a limited check upon the district attorney's charging power and by its terms may be invoked only when a complainant can demonstrate that the district attorney has in fact refused to charge, or is unavailable to do so.

I. FACTS AND PROCEDURAL HISTORY

¶ 9. Until August of 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 February 25, 2002, Tjader filed a motion in Dane County Circuit Court requesting the issuance of a criminal complaint against Ralph and Jackie Kalal under Wis. Stat. § 968.02(3). Tjader's complaint, asserting four counts of felony theft, alleged that the Kalals stole funds withheld for Tjader and Schmeiser's 401K retirement accounts. Tjader informed the court 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 against the Kalals. Tjader stated in her motion that the district attorney's response was to tell her she "was free to proceed legally in whatever manner she believed necessary." The motion also asserted, more generally, that the district attorney "has refused to charge the defendants."

¶ 10. The matter was assigned to Portage County Circuit Court Judge John V. Finn, who held a hearing on Tjader's motion on March 13, 2002. Tjader and Schmeiser appeared at the hearing, as did Jason Hanson, a Dane County Deputy District Attorney. Hanson acknowledged that Tjader had contacted the district attorney's office "some months ago," and that the office had not filed a complaint in the matter. Hanson advised Judge Finn that he thought the district attorney's response to Tjader qualified as a refusal to prosecute under the statute:

I don't think our office has ever affirmatively stated we would not prosecute. What we have done is fail to do so, so I think a fair reading of refusal in the statute encompasses both of the situations. We haven't told Ms. Tjader that we're not going to seek charges. We simply haven't done it yet.

¶ 11. Tjader testified at the hearing and briefly recounted her tenure at Kalal and Associates, the circumstances surrounding the establishment and banking of the 401K accounts, and the Kalals' alleged malfeasance. Tjader described her contacts with the Madison Police Department and with the district attorney's office, explaining that "the impression I got was that the matter was closed and that was why I was getting the invitation to do what I felt needed to be done." Schmeiser also testified to the circumstances of her employment and the alleged theft of her 401K funds.

¶ 12. Judge Finn then addressed the elements of the theft charge under Wis. Stat. § 943.20(1)(b), made a factual finding that the district attorney had refused to prosecute, and concluded that probable cause existed to believe the Kalals were guilty of theft. He directed the filing of a complaint "consistent with the criminal complaint that is proposed by Ms. Tjader." At Hanson's request, the judge ordered the appointment of a special prosecutor. On March 28, 2002, Dane County Circuit Judge Michael Nowakowski appointed Anthony A. Tomaselli as special prosecutor.

¶ 13. On April 29, 2002, the Kalals filed a motion to reconsider and discharge the special prosecutor. Without explicitly contradicting Judge Finn's finding that the district attorney's conduct constituted a refusal under Wis. Stat. § 968.02(3), the Kalals argued that allowing a private citizen to "short circuit" a prosecutor's discretion violates separation of powers by "unwarranted judicial intervention into the discretion vested in our publicly elected prosecutors." Attached to the reconsideration motion was a copy of a November 29, 2001, letter from Dane County District Attorney Brian Blanchard to Tjader, informing her that the complaint had been referred to a detective in the Madison Police Department. In the letter, Blanchard also asked Tjader to consider the heavy caseloads of police detectives and the fact that a case involving misuse of pension funds "is not necessarily simple," and suggested that if the case were chargeable as criminal theft, then "it must be a very straightforward civil suit."

¶ 14. Special prosecutor Tomaselli responded by arguing that the Kalals had no standing to challenge Judge Finn's order directing the filing of a criminal complaint against them. Tomaselli also argued that the premise of the Kalals' objection to Judge Finn's order — namely, that the district attorney's refusal must be explicit — would,...