State ex rel. Reimann v. Circuit Court for Dane County

• Decision Date: 16 December 1997
• Docket Number: No. 96-2361-W,96-2361-W
• Citation: 571 N.W.2d 385,214 Wis.2d 605
• Parties: STATE of Wisconsin ex rel. Thomas W. REIMANN, Petitioner, v. CIRCUIT COURT FOR DANE COUNTY and the Honorable Michael B. Torphy, Respondents-Petitioners.
• Court: Wisconsin Supreme Court

Page 385

571 N.W.2d 385

214 Wis.2d 605

STATE of Wisconsin ex rel. Thomas W. REIMANN, Petitioner, v. CIRCUIT COURT FOR DANE COUNTY and the Honorable Michael B Torphy, Respondents-Petitioners.

No. 96-2361-W.

Supreme Court of Wisconsin.

Argued Oct. 8, 1997.

Decided Dec. 16, 1997.

For the respondents-petitioners the cause was argued by James H. McDermott, Assistant Attorney General, with whom on the briefs was James E. Doyle, Assistant Attorney General.

For the petitioner there was a brief by Peter DeWind and Legal Assistance to Institutionalized Persons, Madison and oral argument by Peter DeWind.

¶1 DONALD W. STEINMETZ, Justice

There is one issue presented for review: when a person complains to a circuit court judge that such person believes a crime has been committed within that judge's jurisdiction, does Wis. Stat. § 968.26 ¹ (1995-96) ² require the judge to examine under oath the complainant and any witnesses produced by him or her. We conclude that Wis. Stat. § 968.26 requires a circuit court judge to conduct such an examination only when the complainant has sufficiently established that he or she has "reason to believe" that a crime has been committed within that judge's jurisdiction.

¶2 This is a review of the decision of the court of appeals granting a supervisory writ sought by Thomas Reimann against the Circuit Court for Dane County and Judge Michael B. Torphy, Jr., State ex rel. Reimann v. Circuit Court for Dane County, No. 96-2361-W (Wis.Ct.App. November 13, 1996). We modify the decision of the court of appeals, and we affirm the decision, as modified, granting a supervisory writ directing Judge Torphy to conduct further proceedings, consistent with this opinion, under Wis. Stat. § 968.26.

¶3 Thomas Reimann filed a petition for John Doe proceedings under Wis. Stat. § 968.26 in the circuit court, alleging certain criminal conduct by a Wisconsin Department of Justice special agent and by an assistant district attorney of Dane County. The petition was given under oath and was certified by a notary public. Judge Torphy denied the petition without conducting a hearing or examining Reimann. Upon review of Reimann's petition, the judge determined that some of the allegations contained therein were not actionable since they fell outside the statute of limitations. Judge Torphy also concluded that since Reimann presented his petition under oath and with supporting documents, "it [was] not necessary to again place Reimann under oath and take further evidence from him...."

¶4 Reimann then petitioned the court of appeals for a supervisory writ under Wis. Stat. § 809.51(1) ³ compelling Judge Torphy to conduct further proceedings on the John Doe petition. The court of appeals granted a supervisory writ ordering that "Judge Torphy shall conduct an examination of the complainant and his witnesses, if any." The court relied heavily on the mandatory portion of Wis. Stat. § 968.26, which states "the judge shall examine the complainant...." The court also concluded that Wis. Stat. § 968.26 does not require the complainant to satisfy any threshold test before an examination is required. Based on the mandatory language of Wis. Stat. § 968.26 and the absence of any threshold requirement, the court concluded that Judge Torphy was required to conduct a John Doe examination of Reimann. We accepted Judge Torphy's petition for review.

¶5 The sole issue presented for review is whether Wis. Stat. § 968.26 requires a judge to examine under oath the complainant and any witnesses produced by him or her, whenever such person complains that he or she believes a crime has been committed within that judge's jurisdiction. This is a question of statutory interpretation.

¶6 Statutory interpretation is a question of law. See Stockbridge School Dist. v. DPI, 202 Wis.2d 214, 219, 550 N.W.2d 96 (1996); Jungbluth v. Hometown, Inc., 201 Wis.2d 320, 327, 548 N.W.2d 519 (1996). This court reviews questions of law de novo, without giving deference to the decisions of the lower courts. See Jungbluth, 201 Wis.2d at 327, 548 N.W.2d 519; Hughes v. Chrysler Motors Corp., 197 Wis.2d 973, 979, 542 N.W.2d 148 (1996).

¶7 The ultimate goal of statutory interpretation is to ascertain and give effect to the intent of the legislature. See Stockbridge School Dist., 202 Wis.2d at 219, 550 N.W.2d 96; Hughes, 197 Wis.2d at 979, 542 N.W.2d 148; Rolo v. Goers, 174 Wis.2d 709, 715, 497 N.W.2d 724 (1993). To achieve this goal, we first look to the plain language of the statute. See Jungbluth, 201 Wis.2d at 327, 548 N.W.2d 519; In re Interest of Kyle S.-G., 194 Wis.2d 365, 371, 533 N.W.2d 794 (1995). If a statute is unambiguous, this court will apply the ordinary and accepted meaning of the language of the statute to the facts before it, see Swatek v. County of Dane 192 Wis.2d 47, 57, 531 N.W.2d 45 (1995), and we are prohibited from looking beyond such language to ascertain its meaning. See Stockbridge School Dist., 202 Wis.2d at 220, 550 N.W.2d 96 (quoting Jungbluth, 201 Wis.2d at 327, 548 N.W.2d 519). If a statute does not clearly set forth the legislative intent, we may look at the history, scope, context, subject matter, and object of the statute. See id.; Interest of Kyle S.-G., 194 Wis.2d at 371, 533 N.W.2d 794.

¶8 We therefore turn to the language of Wis. Stat. § 968.26 to determine whether it clearly sets forth the intent of the legislature. Section 968.26 provides in pertinent part: "If a person complains to a judge that he or she has reason to believe that a crime has been committed within his or her jurisdiction, the judge shall examine the complainant under oath and any witnesses produced by him or her...."

¶9 The obligation Wis. Stat. § 968.26 places on circuit court judges is clear and unambiguous. The plain language of Wis. Stat. § 968.26 requires a judge to examine a John Doe complainant and his or her witnesses, if any, when the complainant has reason to believe a crime has been committed within that judge's jurisdiction. The legislature made this requirement mandatory by stating "the judge shall examine." The general rule is that the word "shall," when used in a statute, is presumed to be mandatory unless another construction is necessary to carry out the clear intent of the legislature. See Wagner v. State Medical Examining Bd., 181 Wis.2d 633, 643, 511 N.W.2d 874 (1994); C.A.K. v. State, 154 Wis.2d 612, 621-22, 453 N.W.2d 897 (1990). There is no indication that this portion of the statute is meant to be read in any manner other than mandatory.

¶10 The mandatory nature of this requirement is supported by the legislature's careful choice of language. When the words "shall" and "may" are used in the same section of a statute, the court can infer that the legislature was aware of the different denotations and intended the words to have their precise meanings. See Karow v. Milwaukee County Civil Serv. Comm., 82 Wis.2d 565, 571, 263 N.W.2d 214, 217 (1978). The relevant, first sentence of Wis. Stat. § 968.26 contains the word "shall" twice and the word "may" once. In total, Wis. Stat. § 968.26 employs the words "shall" and "may" alternatively 12 different times. We can therefore infer that the legislature intended "shall" to have its precise, mandatory meaning. Applying the precise meaning of the statutory text, we conclude that once a John Doe complainant has shown that he or she has reason to believe that a crime has been committed, the judge has no discretion to refuse to examine the complainant. With this conclusion of the court of appeals, we agree.

¶11 We disagree, however, with the court of appeals' conclusion that Wis. Stat. § 968.26 does not impose a threshold requirement on the John Doe complainant. The operative clause of Wis. Stat. § 968.26 provides: "If a person complains to a judge that he or she has reason to believe that a crime has been committed ..." (emphasis added). As we view this language, there is one prerequisite to triggering the judge's duty to examine the complainant--that the complainant first establish that he or she has "reason to believe" that a crime has been committed. See Wolke v. Fleming, 24 Wis.2d 606, 612-13, 129 N.W.2d 841 (1964), cert. denied, 380 U.S. 912, 85 S.Ct. 897, 13 L.Ed.2d 798 (1965) (stating that Wis. Stat. § 968.26 requires that the complainant have reason to believe a crime has been committed within the magistrate's jurisdiction); see also State v. Doe, 78 Wis.2d 161, 165, 254 N.W.2d 210 (1977) (stating that a John Doe proceeding can be commenced only if a person complains to a judge that he or she has reason to believe that a crime has been committed within the jurisdiction). Absent a showing in the petition that the complainant has reason to believe that a crime has been committed within the circuit court judge's jurisdiction, the judge is not required to examine the complainant.

¶12 The language of Wis. Stat. § 968.26 is ambiguous as to what threshold showing is sufficient to establish that the complainant has "reason to believe" that a crime has been committed. The term "reason to believe" is not defined in the statute, and its meaning is "capable of being understood by reasonably well-informed persons in either two or more senses." Parental Rights to SueAnn A.M., 176 Wis.2d 673, 678, 500 N.W.2d 649 (1993)(quoting In Interest of P.A.K., 119 Wis.2d 871, 878-79, 350 N.W.2d 677 (1984)). Compare State v. Flanagan, 251 Wis. 517, 520, 29 N.W.2d 771 (1947)(applying objective standard to determine whether "reason to believe" existed under Wis. Stat. § 29.05(6) (1947)) ⁴ with Kurkierewicz v. Cannon, 42 Wis.2d 368, 381, 166 N.W.2d 255 (1969)(applying subjective standard to determine whether "any reason to believe" existed under Wis. Stat. § 966.01). ⁵

¶13 When faced with an ambiguous statute, courts should use the established rules of statutory construction to help determine the intent of the legislature. ⁶ See SueAnn A.M., 176 Wis.2d at 679, 500 N.W.2d 649; State v. Charles, 180...