State ex rel. Perry v. Wolke

• Decision Date: 28 January 1976
• Docket Number: No. 75--464,75--464
• Citation: 71 Wis.2d 100,237 N.W.2d 678
• Parties: STATE of Wisconsin ex rel. Rogers PERRY, Petitioner, v. Michael S. WOLKE, Sheriff of Milwaukee County, Respondent.
• Court: Wisconsin Supreme Court

Page 678

237 N.W.2d 678

71 Wis.2d 100

STATE of Wisconsin ex rel. Rogers PERRY, Petitioner, v. Michael S. WOLKE, Sheriff of Milwaukee County, Respondent.

No. 75--464.

Supreme Court of Wisconsin.

Argued Jan. 7, 1976.

Decided Jan. 28, 1976.

Brief by: Robert J. Lerner and Lerner & Adelman, Milwaukee, argued by: Robert J. Lerner, Milwaukee, for petitioner.

Brief by: E. Michael McCann, Dist. Atty., and Lee Wells, Asst. Dist. Atty., Milwaukee County, argued by: Lee Wells, Asst. Dist. Atty., Milwaukee, for respondent.

HEFFERNAN, Justice.

This is an original action for a writ of habeas corpus. The petitioner challenges the authority of a judicial court commissioner to conduct a preliminary examination and to order the petitioner held for trial. The position of judicial court commissioner was created by sec. 256.68, Stats., effective June 16, 1974. We conclude that the petitioner is correct in his assertion and that the power exercised in the instant case to bind the defendant over for trial on a felony charge was beyond the power granted to judicial court commissioners by the 1974 revision of the statutes.

It is agreed by the parties that, prior to the revision of the Code of Criminal Procedure (ch. 255 of the Laws of 1969), court commissioners were empowered to preside over preliminary examinations. See ch. 954, 1967 Stats. The Milwaukee district attorney, who contests the granting of petitioner's writ of habeas corpus, concedes that court commissioners are without authority to conduct preliminary examinations. The district attorney relies, however, upon sec. 256.68. That statute provides for the creation of a new judicial position, called judicial court commissioner, in counties having a population of 500,000 or more.

Sec. 256.68(2), Stats., provides that judicial court commissioners 'to the extent required for their duties, have the powers of a court commissioner.' The statutes provide that judicial court commissioners may be assigned by the chairman of the county board of judges to various branches of the circuit and county courts to assist the judges in the performance of their judicial duties and to facilitate the work of the courts. Sec. 256.68(3) provides that, when assigned to a children's court, the judicial court commissioner may, in addition to other specified duties, conduct 'preliminary appearances.' (Emphasis supplied.) Sec. 256.68(3)(b) itemizes with specificity seven categories of duties which may be performed upon direction of the presiding judge.

In addition, under sec. 256.68(3)(c), Stats., the judicial court commissioner may determine 'probable cause for further detention at the preliminary hearing to determine any mental condition' in respect to applications for mental examinations brought under ch. 51.

Sec. 256.68(3)(b), Stats., also provides that, when a judicial court commissioner is assigned to the misdemeanor, traffic, or misdemeanor-traffic branches of the county court, he may conduct such hearings and proceedings as may be authorized by the judge of the branch to which he is assigned. The judicial court commissioner is, by that same subsection of the statute, precluded from presiding over any 'trial,' except in respect to default judgments and stipulations.

It is argued by the district attorney that a judicial court commissioner has jurisdiction to conduct a preliminary hearing because the legislature gave the judicial court commissioner authority to conduct 'any' hearings and proceedings which the presiding judge may direct, except a trial of a cause. The district attorney contends that, while the statute specifically excluded the judicial court commissioner's power to conduct a trial, it failed to exclude from the general grant of power to conduct hearings and proceedings the authority to conduct a probable-cause hearing.

Nowhere, however, is jurisdiction expressly conferred upon judicial court commissioners to conduct preliminary examinations to determine probable cause in felony cases. At the most, sec. 256.68, arguably and only by implication, confers some residual powers to a judicial court commissioner to conduct some hearings and proceedings when directed to do so by the judge of the branch to which he is assigned.

Haight v. Lucia (1874), 36 Wis. 355, 360, in discussing the powers of a court commissioner under then existing law, held that, in respect to criminal matters, the authority of court commissioners could not be predicated 'upon mere inferences or implications, but must be expressly conferred by law, or it does not exist.'

We are not inclined to apply that rule of law in this case with the same rigidity that was used by this court in 1874, for it is apparent that the legislative intent in the instant situation was to permit a judicial court commissioner to conduct some hearings as directed by the judge and not specified by the statutes. We refuse to construe sec. 256.68 as being insufficient to confer authority upon a judicial court commissioner in addition to that specified merely because the exact nature of the hearings has not been particularized. Such interpretation would fly in the face of obvious legislative intent, which the rule in Haight was intended to further rather than to thwart.

Nevertheless, it is apparent that no specific authority is granted to a judicial court commissioner to hear or decide the question of probable cause in felony cases.

At oral argument it was stated that, under sec. 256.68(3), Stats., a judicial court commissioner could 'conduct preliminary appearances.' (Emphasis supplied.) The statute on its face indicates that this power is not identifical with the power to conduct preliminary examinations in felony cases; and, moreover, the duty to conduct 'preliminary appearances' is applicable only in proceedings brought under ch. 58, the children's code.

We also find unconvincing the district attorney's argument that, because there is a specific exclusion from the authority of a judicial court commissioner to preside over a trial, this leaves to him a residual power to preside over all other hearings and proceedings in the course of the criminal prosecution. We think that the statute is properly read to provide that a judicial court commissioner may, under the terms of sec. 256.68(3)(b), preside over default judgments and stipulations and may perform the additional duties itemized in subsections 256.68(3)(b) 1 to 7 but not trials.

The express power conferred upon a judicial court commissioner in respect to mental proceedings under ch. 51 is not applicable to the exercise of criminal jurisdiction.

Despite the fact that we find no provision in sec. 256.68, Stats., expressly conferring upon a court commissioner authority to conduct a preliminary hearing, we would conclude, were it not for other provisions of the statutes, that, arguably at least, a residuum of power is, by implication left to a judicial court commissioner to conduct a preliminary examination for the purpose of determining probable cause.

Elsewhere in the statutes the possible implications of sec. 256.68, Stats., are refuted. The section of the statute which we consider controlling and dispositive of any ambiguity in sec. 256.68 is sec. 970.03(1), which defines a preliminary examination. That statute states:

'A preliminary examination is a hearing before a court for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant.' (Emphasis supplied.)

'Court' is defined by sec. 967.02(7), Stats., as being either a county court or circuit court.

Sec. 967.02(6), Stats., makes clear that 'court' is not synonymous with 'judge,' for "Judge' means judge of a court of record.'

These statutes indicate that the legislature saw fit not to grant authority for the conduct of a preliminary examination to judges, but only to courts.

Since sec. 970.03, Stats., deals specifically with preliminary examinations and limits the forum in which they must be held, it controls over any general statute or over any other specific statute which does not expressly encompass preliminary examinations within its ambit. Schlosser v. Allis Chalmers Corp. (1974), 65 Wis.2d 153, 161, 222 N.W.2d 156.

While, under sec. 967.02(6), Stats., the term, 'judge,' includes, for some purposes, 'court commissioner,' a judge even of a court of record is not a court. State v. Sorenson (1893), 84 Wis. 27, 53 N.W. 1124; Rubin v. State (1927), 192 Wis. 1, 211 N.W. 926; State ex rel. Maloney v. Proctor (1946), 249 Wis. 377, 24 N.W.2d 698; State v. Friedl (1951), 259 Wis. 110, 47 N.W.2d 306; State ex rel. White v. District Court of Milwaukee County (1952), 262 Wis. 139, 54 N.W.2d 189; State ex rel. Jackson v. Coffey (1963), 18 Wis.2d 529, 118 N.W.2d 939; State v. Koopman (1967), 34 Wis.2d 204, 148 N.W.2d 671; State v. Dickson (1972), 53 Wis.2d 532, 193 N.W.2d 17; State ex rel. Newspapers, Inc. v. Circuit Court for Milwaukee County (1974), 65 Wis.2d 66, 221 N.W.2d 894.

The general distinction between a judge and a court is well stated in Rubin v. State, supra, 192 Wis. page 7, 211 N.W. 926, and was followed in State v. Dickson, supra. In Rubin, this court said:

'The judge and the court are not identical. The judge is a man. The court is an institution. It requires something more than a judge sitting on the bench to constitute a court. It requires, in addition, the existence of conditions authorizing the exercise of the powers of a court. It requires the presence of that upon or over which the powers of a court may be exerted, namely, a controversy involving legal or human rights. It requires the presence of litigants, generally attorneys, usually officers, such as bailiff, clerk, etc., and frequently jurors. To constitute a court, some of these elements must concur with the presence of a presiding judge. It is this institution, as distinguished from the judge, that merits and enjoys the respect of society.'

A judicial court commissioner, hearing assigned...