State v. McGee

• Decision Date: 12 April 2005
• Docket Number: No. 2004AP1005-CR.,2004AP1005-CR.
• Citation: 281 Wis.2d 756,698 N.W.2d 850,2005 WI App 97
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Gwendolyn McGEE, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

281 Wis.2d 756

2005 WI App 97

698 N.W.2d 850

STATE of Wisconsin, Plaintiff-Respondent, v. Gwendolyn McGEE, Defendant-Appellant.¹

No. 2004AP1005-CR.

Court of Appeals of Wisconsin.

Submitted on briefs March 1, 2005.

Decided April 12, 2005.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Amelia L. Bizzaro of Bizzaro Law Office, Milwaukee. On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general by Jeffrey J. Kassel, assistant attorney general.

Before Wedemeyer, P.J., Curley and Kessler, JJ.

¶ 1. WEDEMEYER, P.J.

Gwendolyn McGee appeals from an order² entered after the trial court denied her motion filed pursuant to WIS. STAT. § 118.15(5)(b)2 (2001-02).³ In that motion, McGee sought dismissal of the complaint against her, which alleged one count of failing to cause a child to attend school, contrary to WIS. STAT. §§ 118.15(1), (5) and 118.16(5) (compulsory school attendance law). The basis for the motion was that she was unable to comply with the compulsory attendance law because of the disobedience of her child. The trial court held that the motion was premature because application of the disobedience defense does not apply unless there has already been a conviction under WIS. STAT. § 118.15(5)(a). Because the trial court erroneously interpreted the statute to require a conviction before the disobedience defense applies, we reverse the order and remand for further proceedings consistent with this opinion.

BACKGROUND

¶ 2. On December 2, 2002, the State filed a complaint against McGee, alleging that she intentionally failed to cause her son, Jeremy, to attend school regularly during the 2001-02 school year, in violation of WIS. STAT. §§ 118.15(1), (5) and 118.16(5). The complaint alleged that Jeremy had been absent 94 out of the 168 school days, offering excuses only with respect to his absence on 10.5 of those days. The complaint further alleged that six interventions were performed or attempted, including personally notifying McGee regarding Jeremy's truancy, notifying McGee by letter, providing educational counseling to Jeremy, evaluating whether learning problems were causing the truancy, meeting with McGee at her home to discuss the truancy problem, and placing numerous phone calls to McGee to discuss Jeremy's attendance problem.

¶ 3. On March 4, 2004, McGee filed a motion requesting a pretrial evidentiary hearing pursuant to WIS. STAT. § 118.15(5)(b)2. The trial court denied the motion as premature. McGee filed a motion seeking reconsideration, which was also denied. On April 4, 2004, McGee filed a motion to stay the proceedings so that she could pursue an interlocutory appeal. The trial court granted her motion.

¶ 4. On April 9, 2004, McGee filed a petition with this court seeking leave to appeal a non-final order. The State did not oppose the motion, and this court granted the petition by written order dated April 27, 2004.

DISCUSSION

¶ 5. McGee and the State both agree that the trial court's ruling was erroneous in that the statute does not require a conviction before application of the disobedience defense contained in WIS. STAT. § 118.15(5)(b)2. The parties do, however, disagree as to the timing and characterization of the disobedience defense. McGee contends that the statute is intended to be utilized prior to trial and decided by the trial court. The State responds that the disobedience defense is an affirmative defense to be presented at trial and submitted to the jury for decision. We agree with the State's position.

¶ 6. The issue in this case involves the interpretation of statutes, a question of law that this court reviews independently. State v. Michels, 141 Wis. 2d 81, 87, 414 N.W.2d 311 (Ct. App. 1987). In interpreting statutes, we begin with the language of the statute itself. State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. If the meaning of the statute can be ascertained from the plain language, we need not look any farther than the statute itself. Id. "[S]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶ 46. The scope, context, and purpose of the statute can be considered in determining the plain meaning of the statute, if they can be ascertained from the statute itself, and as long as the statute is not ambiguous. Id., ¶ 48. If the statutory language is unambiguous, there is no need to consult extrinsic sources, such as the legislative history. Id., ¶ 46. A statute is ambiguous when "it is capable of being understood by reasonably well-informed persons in two or more senses." Id., ¶ 47.

¶ 7. With these standards in mind, we now set forth the pertinent portion of the statutes at issue in this case. WISCONSIN STAT. § 118.15(1) provides:

(a) Except as provided under pars. (b) to (d) and sub. (4), unless the child is excused under sub. (3) or has graduated from high school, any person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which the child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which the child becomes 18 years of age.

Section 118.15(5) provides:

(a) 1. Except as provided under par. (b) or if a person has been found guilty of a misdemeanor under s. 948.45, whoever violates this section may be penalized as follows, if evidence has been provided by the school attendance officer that the activities under s. 118.16 (5) have been completed or were not required to be completed as provided in s. 118.16 (5m):

a. For the first offense, by a fine of not more than $500 or imprisonment for not more than 30 days or both.

b. For a 2nd or subsequent offense, by a fine of not more than $1,000 or imprisonment for not more than 90 days or both.

....

(b) 1. Paragraph (a) does not apply to a person who has under his or her control a child who has been sanctioned under s. 49.26 (1) (h).

2. In a prosecution under par. (a), if the defendant proves that he or she is unable to comply with the law because of the disobedience of the child, the action shall be dismissed and the child shall be referred to the court assigned to exercise jurisdiction under ch. 48.

A. Conviction Requirement.

¶ 8. We address first the trial court's erroneous ruling. The trial court ruled:

The section that you cite refers to someone who's been found guilty of a misdemeanor under section (5) (a), so paragraph (b) doesn't apply unless there's already been the conviction under (5) (a), so if the defendant is convicted, then the Court can look at that next step and see if there's—if the defendant is unable to comply because of the disobedience of the child. Then the Court can dismiss the action and refer the matter to the juvenile court.

If the person is found not guilty, then the Court never has to get to that point, so I don't think that this is something that's pretried. I think that this is premature. I think there has to be a conviction under paragraph (5) (a) for paragraph (5) (b) to apply because paragraph (5) (b) starts out number 1, paragraph (a) does not apply to a person who has under his or her control a child who has been sanctioned under 49.26 (1) (h) and then number 2 says in a prosecution under paragraph (a), so I think that there has to [be] a conviction first before the Court can get to that point, so the request for the motion hearing is denied at this time as premature.

We agree with McGee and the State that the trial court's interpretation of this statute was incorrect. Our analysis starts with the plain language of the statute. The clear language of WIS. STAT. § 118.15(5)(a)1. states: "Except as provided under par. (b) or if a person has been found guilty of a misdemeanor under s. 948.45 ...." (Emphasis added.) This language clearly and unambiguously sets forth two exceptions which remove an individual from liability. The first exception directs the reader to WIS. STAT. § 118.15(5)(b), and the second exception involves a person found guilty under WIS. STAT. § 948.45. ¶ 9. Thus, the next step in the statutory analysis is to turn to WIS. STAT. § 118.15(5)(b) to see if that exception applies to this case. Paragraph (5)(b) has two parts—the first part indicates that this compulsory school attendance law does not apply to a person who has been sanctioned under WIS. STAT. § 49.26(1)(h), which involves the learnfare program. § 118.15(5)(b)1. The second part of paragraph (5)(b) absolves an individual of liability under the compulsory school attendance law if that person proves he or she is unable to comply due to the disobedience of the child. § 118.15(5)(b)2. We conclude that the language of this statute is clear. If either § 118.15(5)(b)1. or § 118.15(5)(b)2. applies, then the individual is not subject to the penalties of the compulsory school attendance law.

¶ 10. Moreover, there is nothing in the language or the context of the statute to reasonably conclude that WIS. STAT. § 118.15(5)(a) requires a conviction under paragraph (5)(a) before paragraph (5)(b) would apply. The exceptions are offered in the alternative, by use of the disjunctive "or." The only reasonable explanation based on the plain meaning of this statute is that liability will not attach under this statute if either paragraph (5)(b) applies or "if a person has been found guilty of a misdemeanor under s. 948.45...." § 118.15(5)(a). In addition, the misdemeanor conviction is in no way listed as a condition precedent before the exceptions in paragraph (5)(b) come into play. Accordingly, we conclude the trial court erred in ruling that the statute requires a conviction...