State v. Sher

Citation437 N.W.2d 878,149 Wis.2d 1
Decision Date04 April 1989
Docket NumberNo. 87-1568,87-1568
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. Mort SHER, Defendant-Respondent. CR.
CourtUnited States State Supreme Court of Wisconsin

Paul Lundsten, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on the briefs, for plaintiff-appellant.

Michael J. Fitzgerald, argued, Martin I. Hanson, and Hanson, Gasiorkiewicz & Becker, S.C., on a brief, Racine, for defendant-respondent.

DAY, Justice.

This court accepted this appeal on certification by the court of appeals pursuant to sec. 809.61, Stats. 1987-88. The State appealed an order by the circuit court for Kenosha county, Honorable David M. Bastian, judge, that dismissed a criminal complaint on the grounds that the six year Statute of Limitations was not tolled during the time the defendant was "publicly a resident" of Florida. The circuit court held that the Statute of Limitations, sec. 939.74(1), Stats., 1 had run and therefore the State of Wisconsin (State) could not prosecute the defendant, Mort Sher (Sher), for alleged violations of secs. 943.20(1)(d) and (3)(c), Stats., 2 (theft by fraud), and sec. 939.05, Stats., 3 (party to a crime). The criminal complaint was dismissed. The State appealed. The State had argued that the running of the Statute of Limitations had been tolled pursuant to sec. 939.74(3), Stats., 4 on the theory that Sher was not publicly a resident of the state of Wisconsin for a period of years between the alleged offense and the filing of the criminal complaint.

Three issues are presented in this case. First: Does a literal interpretation of sec. 939.74(3), Stats., create an "absurd" result as held by the circuit court? We conclude it does not. Second: Does the tolling provision of sec. 939.74(3) applied to a public nonresident of Wisconsin violate the Privileges and Immunities Clause of ARTICLE IV, SEC. 2, CLAUSE 1 OF THE UNITED STATES CONSTITUTION5. We hold that it does not. Third: Does the tolling provision of sec. 939.74(3) violate the Equal Protection Clause 6 in Section 1 of the Fourteenth Amendment of the United States Constitution when applied to a public nonresident of Wisconsin? We hold it does not.

On June 3, 1986, the State filed a criminal complaint and warrant charging Mr. Sher with violating sec. 943.20(1)(d) and (3)(c), Stats., (theft by fraud) and sec. 939 05, Stats., (party to a crime), for theft of a boat from a marina in Wisconsin on April 24, 1978. The prosecution thus commenced this action eight years after the alleged offense.

Sher moved to dismiss the complaint on the theory that the statute of limitations, sec. 939.74(1), Stats., barred prosecution of the alleged offense because more than six years had passed since the date of the alleged offense and the date the warrant for Sher had been issued. The State argued that sec. 939.74(3), Stats., tolled the statute of limitations from running because Sher was not a resident of Wisconsin for a number of years in between the dates of the alleged crime and issuance of the warrant.

An evidentiary hearing on Sher's motion was held and the circuit court issued a decision granting it. The circuit court found that Sher had moved from Wisconsin and had taken up residency in Florida between the fall of 1982 and the spring of 1983; 7 that following his residency in Florida, Sher made numerous trips back to Wisconsin for business matters, personal matters, and litigation matters; that Sher never left Wisconsin in an attempt to conceal or prevent knowledge of his whereabouts; that information was available to both private parties and law enforcement officials as to his residency status and whereabouts.

The circuit court ruled that a "literal reading of [sec. 939.74(3), Stats.] ... would create an absurd result...." because nonresidents would never receive the benefit of the statute of limitations. The circuit court stated that a statute should not be interpreted so as to work an unreasonable and absurd result and cited State v. Clausen, 105 Wis.2d 231, 313 N.W.2d 819 (1982). The circuit court also noted such an interpretation raised equal protection considerations under the United States and Wisconsin Constitutions.

The circuit court then interpreted sec. 939.74(3), Stats., so as to work, in its opinion, a "reasonable" result. The circuit court noted the definition of the word "publicly" and the policy considerations surrounding the enacting of the statute of limitations. It held:

It seems axiomatic to the [circuit court] that the legislature intended by the use of the terms employed in the statute to incorporate those situations which toll the statute of limitations when we have some indication that the absence as a resident from the jurisdiction is for the purposes of avoiding prosecution, concealment, or apprehension.

Applying this interpretation of sec. 939.74(3), Stats., to the particular set of facts it found, i.e., that Sher had not left Wisconsin to avoid prosecution and that his whereabouts and residency were commonly known, the circuit court held that the six year statute of limitations had run. Sher's motion to dismiss was granted.

An interpretation of a statute is a question of law which this court reviews without deference to the circuit court's reasoning. State v. Wittrock, 119 Wis.2d 664, 669, 350 N.W.2d 647 (1984). The primary source used in construing a statute is the statutory language itself. Id., 119 Wis.2d at 670, 350 N.W.2d 647. Non-technical words in a statute are to be given their ordinary and accepted meanings unless a different definition has been designated by the statutes. Id. A statute will be construed so as to not render any part of it superfluous if such a construction can be avoided. State v. McCrossen, 129 Wis.2d 277, 298, 385 N.W.2d 161 (1986), cert. denied 479 U.S. 841, 107 S.Ct. 148, 93 L.Ed.2d 89 (1986).

The circuit court refused to apply sec. 939.74(3), Stats., to Sher because it "would create an absurd result in the statute's interpretation." After examining the purposes behind the statute of limitations, the circuit court noted that a resident of Wisconsin would enjoy the benefits of the statute of limitation's protection but a resident of Zion, Illinois would not enjoy the same protection if he committed an offense in Wisconsin. We note the circuit court's interpretation focuses only on the word "publicly" in the statute and disregards the phrase modified by "publicly:" "a resident within this state." A construction of a statute should not render any portion of the statute superfluous. McCrossen, 129 Wis.2d at 298, 385 N.W.2d 161.

Sher's counsel argues that the statute establishes four categories of persons: public residents; nonpublic residents; public nonresidents; nonpublic nonresidents. His argument then continues that the tolling provision applies to only two of those categories--the nonpublic resident and nonpublic nonresident. Sher's counsel maintains that because Sher is a public nonresident, he is afforded the protection of the statute of limitations.

We disagree. The statute creates only two categories of persons: public residents and others. The public residents are the only group of persons for whom the statute of limitations does not toll. We find further support for this interpretation in the comments by the Judiciary Committee who submitted the bill establishing sec. 939.74, Stats. The comments state that in computing the statute of limitations, sec. 939.74(1), Stats., "the time during which the actor was not publicly a resident within this state is subtracted (e.g., he may have resided elsewhere, or in this state secretly and in concealment)." Wisconsin Legislative Council, 5 Judiciary Committee Report on the Criminal Code at 57 (1953), reprinted in 3 Wisconsin Legislative Council Reports part 2. Furthermore, Sher's construction would also render the words "a resident within this state" without meaning.

In addition, other courts have held that similar tolling provisions activate even if the defendant did not flee the state to avoid prosecution, openly resided in another state, or did not attempt to conceal his whereabouts. People v. Edwards, 106 Ill.App.3d 918, 62 Ill.Dec. 701, 436 N.E.2d 727 (1982); State v. Houck, 240 Kan. 130, 727 P.2d 460 (1986); Kubus v. Swenson, 242 Minn. 425, 65 N.W.2d 177 (1954); State v. Ansell, 36 Wash.App. 492, 675 P.2d 614 (1984).

Sher's counsel contends he is not arguing that the tolling provision is unconstitutional on its face. Rather, he argues that the provision may be unconstitutionally applied in this case. Sher's counsel argues that applying the tolling provision of sec. 939.74(3), Stats., to public nonresidents violates both the privileges and immunities clause and the equal protection clause of the United States Constitution. The State asserts that Sher is challenging the statute's constitutionality on its face. There is a strong presumption of a statute's constitutionality. Guertin v. Harbour Assur. Co., 141 Wis.2d 622, 633, 415 N.W.2d 831 (1987). The challenger asserting the unconstitutionality of a statute bears a heavy burden in proving it. WKBH Television, Inc. v. Dept. of Revenue, 75 Wis.2d 557, 566, 250 N.W.2d 290 (1977).

I. PRIVILEGES AND IMMUNITIES CLAUSE

The privileges and immunities clause does not require "absolute equality" in treatment between residents and nonresidents. Taylor v. Conta, 106 Wis.2d 321, 329, 316 N.W.2d 814 (1982). Because nonresidents may present special problems for the administration of state laws, a state need not treat nonresidents in precisely the same manner as residents. Only those distinctions in treatment which hinder the formation, development or purpose of a single Union of States are prohibited. Id.

In Taylor v. Conta, this court established a three-part test to be used when examining a statute that allegedly violates the privileges and immunities clause of the United States Constitution. First, this court must consider whether the...

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