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
¶ 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
¶ 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
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
¶ 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
¶ 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, if accepted, enable the district attorney to nullify the operation of the statute by withholding an explicit refusal.
¶ 15. By written decision dated August 2, 2002, Judge Finn held that the Kalals had no standing to contest the order permitting the filing of the complaint because the statute "contemplates an ex parte proceeding with no right of cross-examination by the defendants
¶ 16. The Kalals sought a supervisory writ in the court of appeals pursuant to Wis. Stat. § 809.51,
II. SUPERVISORY WRIT STANDARDS
¶ 17. A "writ of supervision is not a substitute for an appeal." State ex rel. Dressler v. Circuit Court for Racine County, 163 Wis.2d 622, 630, 472 N.W.2d 532 (Ct. App. 1991). The decision whether to issue a supervisory writ "is controlled by equitable principles and, in our discretion, we can consider the rights of the public and third parties." Id. A supervisory writ "is considered an extraordinary and drastic remedy that is to be issued only upon some grievous exigency." Id. A petitioner seeking a supervisory writ must establish the following:
Burnett v. Alt, 224 Wis.2d 72, 96-97, 589 N.W.2d 21 (1999) (citing State ex rel. Oman v. Hunkins, 120 Wis.2d 86, 91, 352 N.W.2d 220 (Ct. App. 1984); see also Dressler, 163 Wis. 2d at 630 (separating the third of these factors into two, for a total of five factors).
¶ 18. Judge Finn concluded that the Kalals lacked standing to bring a motion for reconsideration from his decision to permit the filing of a criminal complaint
Wis. Stat. § 968.02(3).
¶ 19. The statute expressly specifies an ex parte hearing and no right of cross-examination. If the Kalals have no right or standing to be heard at the hearing, they cannot claim a right or standing to be heard on a reconsideration motion.
¶ 20. This is not to say that a judge's decision to issue a complaint pursuant to this procedure is completely unreviewable. A defendant named in a complaint issued pursuant to subsection (3) of the statute has the same opportunity to challenge in circuit court the legal and factual sufficiency of that complaint as a defendant named in a complaint issued pursuant to subsection (1). This includes, in felony prosecutions, the right to a preliminary hearing under Wis. Stat. § 970.03.
¶ 21. The court of appeals has previously held that there is no right to appeal a decision of a judge on a petition under Wis. Stat. § 968.02(3). Gavcus v. Maroney,
B. Violation of a Plain Duty
¶ 22. A basic requirement for the issuance of a supervisory writ by an appellate court is a violation or impending violation of a plain duty by the circuit court judge. A plain duty "must be clear and unequivocal and, under the facts, the responsibility to act must be imperative." State ex rel. Kurkierewicz v. Cannon, 42 Wis.2d 368, 377-78, 166 N.W.2d 255 (1969).
¶ 23. The Kalals' briefs do not explain precisely how Wis. Stat. § 968.02(3) imposes a plain duty upon the judge, but at oral argument counsel advanced the proposition that the statute's requirement of a refusal by the district attorney to file charges suggests that the circuit judge has a plain duty to correctly determine the presence of this threshold refusal before authorizing the issuance of a criminal complaint. In essence, the Kalals argue that the judge sitting ex parte in a hearing under Wis. Stat. § 968.02(3) has a plain duty to correctly find facts and apply the law.
¶ 25. To the extent that a circuit judge's decision to permit the filing of a complaint under Wis. Stat. § 968.02(3) is legally or factually unsupported, the defendant named in the complaint may seek its dismissal in the circuit court after it has been filed, and may pursue standard appellate remedies thereafter. But the statutory prerequisite that the judge find a refusal to prosecute by the district attorney does not impose upon the circuit judge a plain, clear, non-discretionary, and imperative duty of the sort necessary for a supervisory writ.
¶ 26. Although the Kalals have failed to establish the existence of a plain duty and are not entitled to a supervisory writ, we will address the statutory interpretation question presented by this case. The proper interpretation of the term "refuses" in Wis. Stat.
C. Wisconsin Stat. § 968.02(3)
i. Separation of powers/charging power and discretion
¶ 27. District attorneys in Wisconsin have primary responsibility and wide discretion to determine whether to commence a criminal prosecution. State v. Karpinski, 92 Wis.2d 599, 607, 285 N.W.2d 729 (1979). The authority is conferred by Wis. Stat. § 968.02(1), which provides that "[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."
¶ 28. But the district attorney's charging power is not unlimited or unfettered. "The district attorney in Wisconsin is a constitutional officer and is endowed with a discretion that approaches the quasi-judicial." Kurkierewicz, 42 Wis. 2d at 378 (citing State v. Peterson, 195 Wis. 351, 359, 218 N.W. 367 (1928)).
¶ 29. The sine qua non of the charging decision is probable cause. Bordenkirscher v. Hayes, 434 U.S. 357, 364 (1978). "In our system, so long as a prosecutor has probable cause to believe that the accused has committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Id.
¶ 30. We have recognized that "[t]here is no obligation or duty upon a district attorney to prosecute all complaints that may be filed with him." Kurkierewicz, 42 Wis. 2d at 378; see also Thompson v. State, 61 Wis.2d 325, 330, 212 N.W.2d 109 (1973). While the district attorney has the power and the duty to prosecute criminal offenders, "it is obvious that a great portion of the power of the state has been placed in his hands for him to use in the furtherance of justice, and this does not per se require prosecution in all cases where there appears to be a violation of the law no matter how trivial." Kurkierewicz, 42 Wis. 2d at 378. In general, "the prosecuting attorney is answerable to the people of the state and not to the courts or the legislature as to the way in which he exercises power to prosecute complaints."
¶ 31. We have in prior cases referred to American Bar Association Criminal Justice Standard 3.9 pertaining to the exercise of charging discretion, identifying two circumstances in which prosecutorial charging discretion may be abused: "[t]his standard makes it abundantly clear that . . . it is an abuse of discretion to charge when the evidence is clearly insufficient to support a conviction. It is also an abuse of discretion for a prosecutor to bring charges on counts of doubtful merit for the purpose of coercing a defendant to plead guilty to a less serious offense." Thompson, 61 Wis. 2d at 329-30; Karpinski, 92 Wis. 2d at 609-10. A district attorney generally should not bring a charge unless he or she believes the evidence can sustain a finding of guilt beyond a reasonable doubt. Not all the guilty are convictable; moreover, convicting all the guilty may not be desirable. Full enforcement of the criminal laws "is neither possible nor desirable." 4 Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, Criminal Procedure § 13.2(d), at 22-23 (1999).
¶ 32. Accordingly, ABA Standard 3.9 specifies a number of discretionary factors beyond the question of the suspect's guilt that may legitimately be taken into consideration in the charging decision. These include the extent of harm caused by the offense; the threat posed to the public by the suspect; the ability and willingness of the victim to participate; the disproportion between the authorized punishment and the particular offense or offender; possible improper motives of a complainant; cooperation of the suspect with the arrest/prosecution of others; the possibility or likelihood
¶ 33. District attorneys did not always occupy this position of primacy vis-a-vis criminal charging decisions. From statehood until 1945, the decision to file criminal charges was vested entirely in local magistrates.
¶ 34. Wisconsin Stat. § 968.02 was enacted as part of a revision of the state's criminal procedure code initiated by the Criminal Rules Committee of the Judicial Council. See Chapter 255, Laws of 1969, Prefatory Note. This new statute governing the issuance and filing of criminal complaints represented a major concentration of charging power in the district attorney's office. See Wis. Stat. § 968.02(1) ("a complaint charging a person with an offense shall be issued only by a district attorney") (emphasis added).
¶ 35. At the same time, however, the legislature offset this power by the inclusion of a special provision, in subsection (3), as a check on the district attorney:
Chapter 255, Laws of 1969, Judicial Council Committee Note to Wis. Stat. § 968.02.
ii. Statutory interpretation/the statutory term "refuses"
¶ 36. Wisconsin Stat. § 968.02(3) requires the circuit judge to make two determinations before permitting the filing of a complaint: (1) a factual finding that the "district attorney refuses or is unavailable to issue a complaint;" and 2) a legal conclusion that "there is probable cause to believe that the person to be charged has committed an offense." Wis. Stat. § 968.02(3) (emphasis
¶ 37. The Kalals acknowledge that this statute has withstood challenge on separation of powers grounds. They argue, however, that the statutory term "refuses" must be accorded a strict and literal interpretation, to require a direct and explicit statement of refusal from the district attorney, in order to avoid conflict between the branches in this area of shared power. While we recognize the constitutional tension inherent in this statute, see supra ¶¶ 27-36, we see no reason to depart from a straightforward, plain-meaning interpretation of the statutory term "refuses."
¶ 38. More than 25 years ago this court made the following observation about statutory interpretation:
¶ 39. Sutherland's Statutory Construction, cited by Chief Justice Beilfuss in the foregoing passage from
Norman J. Singer, 2A Sutherland Statutory Construction § 45.07, at 38 (6th ed. 2000).
¶ 40. Sutherland further describes the distinction between these interpretive alternatives:
2A Norman J. Singer, Sutherland Statutory Construction § 45.08 at 40.
¶ 41. Sutherland suggests that an "[i]mplied endorsement of Justice Holmes' point of view is . . . discernible in the many cases which express preference for `common,' `ordinary,' `natural,' `normal,' or dictionary definitions" of statutory language. Id., § 45.08 at 43. Furthermore, a "policy favoring conventional meanings and general understandings over obscurely evidenced intention of the legislators is supported in the oftrepeated premise that intention must be determined primarily from the language of the statute itself." Id. at 46.
¶ 42. And finally, "resource materials for statutory construction are commonly classified into two fundamentally different categories, called `intrinsic' and `extrinsic' aids. These characterizations refer to the text of the statute." Id., § 45.14 at 109. As a general matter, "[e]xtrinsic aids . . . are useful to decisions based on the intent of the legislature, while intrinsic aids have greater significance for decisions based on the `meaning of the statute' as understood by people in general." Id., § 45.14 at 109-10.
¶ 43. Viewed against these background general principles, Wisconsin's statutory interpretation case law has evolved in something of a combination fashion, generating some analytical confusion. The typical statutory interpretation case will declare that the purpose of statutory interpretation is to discern and give effect to the intent of the legislature, but will proceed to recite principles of interpretation that are more readily
¶ 44. Accordingly, we now conclude that the general framework for statutory interpretation in Wisconsin requires some clarification. It is, of course, a solemn obligation of the judiciary to faithfully give effect to the laws enacted by the legislature, and to do so requires a determination of statutory meaning. Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We assume that the legislature's intent is expressed in the statutory language. Extrinsic evidence of legislative intent may become relevant to statutory interpretation in some circumstances, but is not the primary focus of inquiry. It is the enacted law, not the unenacted intent, that is binding on the public. Therefore, the purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect.
¶ 46. Context is important to meaning. So, too, is the structure of the statute in which the operative language appears. Therefore, statutory 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. State v. Delaney, 2003 WI 9, ¶ 13, 259 Wis.2d 77, 658 N.W.2d 416; Landis v. Physicians Ins. Co. of Wis., 2001 WI 86, ¶ 16, 245 Wis.2d 1, 628 N.W.2d 893; Seider, 236 Wis.2d 211, ¶ 43. Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage. Martin, 162 Wis. 2d at 894; Bruno, 260 Wis.2d 633, ¶ 24. "If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning." Bruno, 260 Wis.2d 633, ¶ 20. Where statutory language is unambiguous, there is no need to consult extrinsic sources of interpretation, such as legislative history. Id., ¶ 7; Cramer, 236 Wis.2d 473,
¶ 47. The test for ambiguity generally keeps the focus on the statutory language: a statute is ambiguous if it is capable of being understood by reasonably well-informed persons in two or more senses. Bruno, 260 Wis.2d 633, ¶ 19; Martin, 162 Wis. 2d at 894. It is not enough that there is a disagreement about the statutory meaning; the test for ambiguity examines the language of the statute "to determine whether `well-informed persons should have become confused,' that is, whether the statutory . . . language reasonably gives rise to different meanings." Bruno, 260 Wis.2d 633, ¶ 21 (second emphasis added). "Statutory interpretation involves the ascertainment of meaning, not a search for ambiguity." Id., ¶ 25.
¶ 48. At this point in the interpretive analysis the cases will often recite the following: "If a statute is ambiguous, the reviewing court turns to the scope, history, context, and purpose of the statute." Cramer, 236 Wis.2d 473, ¶ 18; Setagord, 211 Wis. 2d at 406; Williams, 198 Wis. 2d at 525. Sometimes the cases substitute the phrase "subject matter and object of the statute" for the phrase "purpose of the statute" in this litany. Ball v. Dist. No. 4, Area Bd. Of Vocational, Technical & Adult Educ., 117 Wis.2d 529, 538, 345 N.W.2d 389 (1984). Either way, this common formulation is somewhat misleading: scope, context, and purpose are perfectly relevant to a plain-meaning interpretation of an unambiguous statute as long as the scope,
¶ 49. Some statutes contain explicit statements of legislative purpose or scope. A statute's purpose or scope may be readily apparent from its plain language or its relationship to surrounding or closely-related statutes—that is, from its context or the structure of the statute as a coherent whole. Many words have multiple dictionary definitions; the applicable definition depends upon the context in which the word is used. Accordingly, it cannot be correct to suggest, for example, that an examination of a statute's purpose or scope or context is completely off-limits unless there is ambiguity. It is certainly not inconsistent with the plain-meaning rule to consider the intrinsic context in which statutory language is used; a plain-meaning interpretation cannot contravene a textually or contextually manifest statutory purpose.
¶ 51. We have repeatedly emphasized that "traditionally, `resort to legislative history is not appropriate in the absence of a finding of ambiguity.'" Seider, 236 Wis.2d 211, ¶ 50 (quoting State v. Sample, 215 Wis.2d 487, 495-96, 573 N.W.2d 187 (1998)) (quoting in turn, Setagord, 211 Wis. 2d at 406). This rule generally "prevents courts from tapping legislative history to show that an unambiguous statute is ambiguous." Id., ¶ 51. That is, the rule prevents the use of extrinsic sources of interpretation to vary or contradict the plain meaning of a statute, ascertained by application of the foregoing principles of interpretation. Thus, as a general matter, legislative history need not be and is not consulted except to resolve an ambiguity in the statutory language, although legislative history is sometimes
¶ 52. Properly stated and understood, this approach to statutory interpretation is not literalistic, nor is it "conclusory" or "result-oriented" in application, as suggested by the chief justice's concurrence. Concurrence of Chief Justice Abrahamson, ¶ 63. An interpretive method that focuses on textual, intrinsic sources of statutory meaning and cabins the use of extrinsic sources of legislative intent is grounded in more than a mistrust of legislative history or cynicism about the capacity of the legislative or judicial processes to be manipulated. Concurrence of Chief Justice Abrahamson, ¶¶ 63, 66. The principles of statutory interpretation that we have restated here are rooted in and fundamental to the rule of law. Ours is "a government of laws not men," and "it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated." Antonin Scalia, A Matter of Interpretation, at 17 (Princeton University Press, 1997). "It is the law that governs, not the intent of the lawgiver. . . . Men may intend what they will; but it is only the laws that they enact which bind us."
¶ 54. To refuse is "[t]o indicate unwillingness to do, accept, give, or allow." The American Heritage Dictionary of the English Language 1519 (3d ed. 1992). As the term is ordinarily understood, a "refusal" involves a decision to reject a certain choice or course of action. This definition is reasonable in the statutory context and consistent with the manifest statutory purpose. Accordingly, the statute's meaning is plain, there is no ambiguity to clarify, and no need to consult extrinsic sources such as legislative history.
¶ 55. This common and accepted definition implies more than mere inaction, but does not necessarily require an express statement from the district attorney. As with other elements of courtroom proof, a refusal under this statute may be proven directly or circumstantially,
¶ 56. This plain-meaning interpretation of "refuses" preserves the hierarchy specified in the statute —the district attorney's charging authority is primary, the circuit judge's, secondary—and is reinforced by the Judicial Council Committee Note, which characterizes this subsection as a "check" on the district attorney's charging power.
¶ 57. In this case, Tjader testified that she reported the alleged theft to the police in August 2001 and to the district attorney in November 2001, and that as of the date of the hearing, March 13, 2002, the district attorney had not filed charges, but, rather, had indicated to her that she was free to pursue whatever legal recourse she wished. Deputy District Attorney Hanson's statements were largely in agreement with Tjader's. While he admitted that his office had not affirmatively stated it would not prosecute, he made it clear that the district attorney's position was that the conduct of his office constituted a "refusal" under Wis. Stat. § 968.02(3) and that Tjader could pursue other remedies. Judge Finn's conclusion that these facts in their totality amounted to a refusal on the part of the district attorney is consistent with the plain-meaning interpretation of the statute. Accordingly, we affirm the decision of the court of appeals.
By the Court.—The decision of the court of appeals is affirmed.
¶ 58. SHIRLEY S. ABRAHAMSON, C.J. (concurring).
I join the mandate, but I return once again to this court's approach(es) to statutory interpretation. It is important, as I have written before, that litigants,
¶ 59. This opinion makes what I consider a significant advance in explaining what the court is actually doing in statutory interpretation.
¶ 60. The most significant advance is that the court at long last abandons its too-oft quoted but erroneous aphorism that to determine the intent of the
¶ 61. This opinion correctly concludes that a court resorts to the scope, context, and purpose of the statute without having to declare an ambiguity in the
¶ 62. Our cases have been inconsistent in stating whether an ambiguity must be declared
¶ 63. I part company with the majority opinion when it declares that extrinsic sources (not defined)
¶ 64. I have argued that a court may examine history without declaring an ambiguity
¶ 65. The majority opinion does not attempt to define "history" or "extrinsic sources" other than by mentioning legislative history and does not attempt to explain what it means by legislative history as an extrinsic source.
¶ 66. Legislative history, especially legislative committee reports and the congressional record, has gotten a bad reputation in recent years in federal circles because legislative history may be manufactured by both proponents and opponents of the legislation, and often every position can be buttressed by something in the federal legislative history.
¶ 67. Legislative history at the state level differs from federal legislative history. For one thing, there is a lot less legislative history in Wisconsin than at the federal level, and manufacturing of legislative history is a less well-known and less perfected skill here.
¶ 68. I write to alert the reader to the numerous forms of "history" this court has relied upon in past statutory interpretation cases, with and without a declaration of ambiguity, and to remind the reader that not all forms of "history" are legislative history or of equal value in determining the meaning of a statute.
¶ 69. Here is a nonexhaustive list of various forms of "history" that have been and will be helpful in interpreting a statute. The majority opinion appears to
This approach is supported by Bapoo v. Co-Operators General Ins. Co.,  36 O.R.3d 616, ¶ 8, where the court of appeal for Ontario wrote as follows:
The Supreme Court of Canada repeatedly endorses this approach. It did so recently in R. v. Glandue,  1 S.C.R. 688, 706, where it wrote:
¶ 71. My view is that "proper statutory interpretation requires that a court take a comprehensive view toward determining legislative intent."
¶ 72. This approach is not new. It is based on Wisconsin precedent. This court stated in 1871 that the plain meaning rule is part of a broader, more comprehensive view toward statutory interpretation. The court explained:
Without this comprehensive approach, this court risks usurping the legislative role and substituting its judgment for the legislature's intent. It is only through complete analysis and weighing of available materials that we can ascertain the meaning of a statute and effectuate legislative intent.
¶ 73. For the reasons set forth above, I write separately to discuss statutory interpretation.
¶ 74. ANN WALSH BRADLEY, J. (concurring).
I agree with the majority that the applicable standards for a supervisory writ have not been established. I also agree that the district attorney's actions constituted a "refusal" under Wis. Stat. § 968.02(3). However, I write separately because of the competing discussions of statutory interpretation. Although I commend both the majority and concurrence for their endeavors, I ultimately join neither.
Id. Thus, he urges caution regarding legislative history, generally justifying its use where the statutory language is ambiguous or results in an "unintended irrationality or injustice." Id. at 431.
Rather, discerning and giving effect to the "intent" of the legislature is an exercise in logic in which a court determines what a reasonable person in the position of a legislator enacting the statute would have said about the legal issue presented in a given case. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 429 (1989) (arguing that searching for legislative intent does not involve looking for "a general legislative aim or purpose, but instead to see more particularly how the enacting legislature would have resolved the question, or how it intended that question to be resolved, if it had been presented.").
I add the word "history" to the list. See also Byers, 263 Wis.2d 113, ¶¶ 45-47 (Abrahamson, C.J., concurring) (urging a similar statement); Cole, 262 Wis.2d 167, ¶ 13 (court must ascertain the legislative intent from the language of the statute in relation to its context, history, scope, and objective intended to be accomplished, including the consequences of alternative interpretations).
So too can a court resort to canons of interpretation to determine the plain meaning. See Peters, 263 Wis.2d 475, ¶¶ 27-28, 30 (Abrahamson, C.J., concurring) (discussing use of a canon of interpretation in contrast to the position taken by the majority opinion, authored by Justice Sykes, opposing use of a canon to determine plain meaning); Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting) (using established canons of construction, the Court should ask whether there is a clear indication that some permissible meaning other than the ordinary one applies). See also Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 25-27 (1997) (endorsing the use of canons of construction in a textualist approach).
In discussing Sutherland's Statutes and Statutory Construction, upon which the majority relies, Justice Scalia wrote: "[I]t is one of those law books that functions primarily not as a teacher or adviser, but as a litigator's research tool and expert witness—to say, and to lead you to cases that say, why the statute should be interpreted the way your client wants." Id. at 15.
Examining the consequences of alternative interpretations is another way of stating that in interpreting a statutory provision, unreasonable or absurd interpretations should be avoided and the purposes of the statute should be fulfilled.
In Landis v. Physicians Ins. Co. of Wis., Inc., 2001 WI 86 ¶ 15, 245 Wis.2d 1, 628 N.W.2d 893, the court described "extrinsic factors [as] including the legislative object intended to be accomplished, and the statute's scope, history, context, and subject matter" (citation omitted).
Justice Scalia, a textualist and an opponent of the use of federal legislative history, nevertheless allows the use of legislative history to avoid an absurd result. Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring).
When a student at the University of Washington Law School challenged Justice Scalia to tell the audience how he would interpret a particular constitutional provision whose plain meaning was obviously unacceptable, the Justice is reported to have said, "I'm a strict constructionist but I'm not a kook."
The New York Times reported that Justice Scalia was quick to assure an audience that he might not be prepared to follow all of his criticisms of constitutional interpretation to their logical conclusion. The justice commented, "I am a textualist. I am an originalist. I am not a nut." Adam Liptak, In Re Scalia the Outspoken v. Scalia the Reserved, The New York Times, May 2, 2004, at 27.
Interpretive problems arise from the inherent ambiguity of language as well as the limits of our linguistic capabilities. State v. Sample, 215 Wis.2d 487, 510, 573 N.W.2d 187 (1998) (Abrahamson, C.J., concurring). Justice Holmes, writing for a unanimous Court in Towne v. Eisner, 245 U.S. 418, 425 (1918), said: "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used."
The Legislative Reference Bureau discourages use of such provisions except under certain circumstances. Indeed a statement of legislative intent, purpose, or findings may not be included in a draft without the approval of the chief of the bureau. See Stephen R. Miller, Legislative Reference Bureau, Wisconsin Bill Drafting Manual § 7.11 (2003-04).
Ch. 392, Laws of 1951.
See, e.g., Wis. Stat. §§ 34.01, 67.10, 84.30, 107.35, 112.08, 168.04, 182.70, 340.01, 611.51.