State of Wisconsin-Department of Corrections v. David H. Schwarz
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2005 WI 34 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 03-2001 State of Wisconsin-Department of Corrections, Petitioner-Respondent-Petitioner, v. David H. Schwarz, Administrator, Division of Hearings and Appeals, Respondent, James Dowell, Respondent-Appellant. REVIEW OF A DECISION OF THE COURT OF APPEALS 2004 WI App 136 Reported at: 275 Wis. 2d 225, 685 N.W.2d 585 (Ct. App. 2004 Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: February 3, 2005 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Milwaukee Timothy G. Dugan JUSTICES: CONCURRED: DISSENTED: March 24, 2005 ABRAHAMSON, C.J., dissents (opinion filed). BRADLEY, J., joins the dissent. BUTLER, J., joins the dissent. NOT PARTICIPATING: ATTORNEYS: For the petitioner-respondent-petitioner there were briefs by Robert G. Pultz, Madison, and oral argument by Robert G. Pultz. For the respondent-appellant there was a brief and oral argument by Michael K. Gould, assistant state public defender. 2005 WI 34 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 03-2001 (L.C. No. 02 CV 8905) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin-Department of Corrections, Petitioner-RespondentPetitioner, FILED v. MAR 24, 2005 David H. Schwarz, Administrator, Division of Hearings and Appeals, Cornelia G. Clark Clerk of Supreme Court Respondent, James Dowell, Respondent-Appellant. REVIEW of a decision of the Court of Appeals. Reversed and remanded. ¶1 (DOC) N. PATRICK CROOKS, J. seeks review of a The Department of Corrections published decision of the court of appeals, DOC v. Schwarz, 2004 WI App 136, 275 Wis. 2d 225, 685 N.W.2d 585, which reversed an order of Circuit Court, Timothy G. Dugan, Judge. the Milwaukee County The circuit court had reversed a decision from the Division of Hearings and Appeals No. (DHA) that held the DOC Wis. Stat. § 304.072(3)1 did not (2001-02) Respondent James Dowell (Dowell). have to 03-2001 jurisdiction revoke the under parole of The issue presented on appeal is whether § 304.072(3) provides the DOC jurisdiction to revoke parole for any initial release violation on occurring parole and the between date of the offender's discharge on the underlying sentence, or whether its jurisdiction is limited to violations occurring during the offender's current period of supervision" in parole. ¶2 We hold that the phrase "term of Wis. Stat. § 304.072(3) is ambiguous, since it can reasonably be interpreted to apply to both the current term of supervision and any time prior sentence. We to the rely final upon discharge extrinsic from sources an underlying such as the legislative history and relevant case law behind § 304.072(3), and the interplay among parole statutes to determine that the phrase "term of supervision" was intended to apply to all parole violations that occur before the offender's date of discharge from his or legislature her entire intended to sentence. promote We offender conclude that accountability the and, therefore, the DOC had jurisdiction to revoke Dowell's parole for a violation that he committed during his first period of parole supervision. I 1 All other references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated. 2 No. ¶3 03-2001 The relevant facts of this case are not in dispute. On March 30, 1994, Dowell was convicted of two counts of armed robbery and one count of operating a vehicle without owner's consent in Milwaukee County Circuit Court. Judge Maxine A. White sentenced him to 90 months in Wisconsin State Prisons.2 After serving nearly three years of his sentence, Dowell was paroled in May 1997. However, the DOC revoked his parole in March 1998 and returned him to prison. ¶4 Dowell served three more years in prison and was paroled again on July, 17, 2001, due to Wisconsin's mandatory release law, Wis. Stat. § 302.11(1).3 Subsequently, while Dowell was on parole, the DOC became aware of evidence that Dowell's DNA matched semen found on the clothing of a victim of a sexual assault and armed robbery that had been committed on May 23, 1997, during Dowell's first of two periods of parole. The DOC was unaware of information linking Dowell to these crimes when it recommended a revocation of Dowell's first parole in March 1998. Based on the new allegations, the DOC sought to revoke 2 Dowell was sentenced to 90 months for both counts of armed robbery, and two years for operating a vehicle without the owner's consent. However, Judge White ordered that Dowell serve the three sentences concurrently. 3 Wisconsin Stat. § 302.11(1) states in relevant part: "The warden or superintendent shall keep a record of the conduct of each inmate, specifying each infraction of the rules. . . . each inmate is entitled to mandatory release on parole by the department. The mandatory release date is established at two-thirds of the sentence." 3 No. 03-2001 Dowell's second parole and force him to serve the final two years, one month, and 14 days of his sentence in prison.4 ¶5 After a revocation hearing on June 18, 2002, an Administrative Law Judge (ALJ), Andrew Reidmaier, ruled that the DOC lacked jurisdiction to revoke parole committed during an earlier parole term. based on conduct He concluded that any subsequent parole is a new and distinct "term of supervision." The ALJ relied on Wis. Stat. § 304.072(3), which limits the DOC's jurisdiction to actions taken prior to the expiration of the parolee's "term of supervision." since the second revocation request The ALJ determined that was not during the same "term of supervision" as the alleged violation, the DOC did not have jurisdiction. ¶6 The DOC appealed this ruling to the Administrator of the DHA, David H. Schwarz (Schwarz). decision and agreed Wis. Stat. § 304.072(3), with that the Schwarz affirmed the ALJ's the DOC's interpretation jurisdiction of applies only to the current term of supervision, not a subsequent term of supervision. Moreover, Schwarz held that the ALJ's decision 4 The DOC does not allege that Dowell committed any violations during his term of parole supervision after his mandatory release. It alleges that Dowell violated Rules 1 and 11 of his Parole Conditions during his first period of parole. Rule 1 states: "You shall avoid all conduct which is in violation of federal or state statute, municipal or county ordinances or which is not in the best interest of the public welfare or your rehabilitation." Rule 11 states in relevant part: "You shall not purchase, possess, own or carry any firearm or any weapon unless you get approval in advance from your agent." 4 No. 03-2001 was consistent with the DOC's past practices, as the Department has never sought to revoke any person's parole supervision based on conduct that occurred during a previous term of parole. ¶7 County The DOC petitioned for certiorari review in Milwaukee Circuit Court. On May 2, 2003, the circuit court, Timothy G. Dugan, Judge, reversed the decision of the DHA. court held that the phrase "term of The supervision" in Wis. Stat. § 304.072(3) could reasonably be interpreted to mean a prisoner's entire sentence. The court concluded that the purpose of the statute was to codify State ex rel. Cox v. DHSS, 105 Wis. 2d 378, 314 N.W.2d 148 (Ct. App. 1981), by extending the DOC's jurisdiction beyond a parolee's final date of discharge, when revocation proceedings are commenced before the discharge date. jurisdiction discharge of from § 304.072(3) in Accordingly, the his or DOC the exists her until entire conjunction court the sentence. split that parolee's final read Wis. Stat. § 304.06(3) with The the court and other statutes governing parole supervision. ¶8 held The DHA appealed. The court of appeals reversed the circuit court in a decision. It concluded that Wis. Stat. § 304.072(3) unambiguously limits the DOC to pursuing parole revocation for violations committed during a parolee's current parole term of supervision. Judge Patricia S. Curley, writing for the majority, determined that the phrase "term of supervision" in § 304.072(3) means the current term of supervision. Unlike the circuit court, the court of appeals did not consider extrinsic sources when interpreting § 304.072(3), 5 because it found the No. plain language unambiguous. 03-2001 Schwarz, 275 Wis. 2d 225, ¶11. The court also cited policy concerns to justify the limitation of the DOC's jurisdiction. It held that violations from prior periods of parole would be hard to prove and difficult to defend against, and that serious violations committed during an earlier parole period could be addressed through new criminal charges. Id., ¶16. ¶9 "term In dissent, Judge Charles B. Schudson found the phrase of because agree supervision" reasonable, on its in Wis. Stat. § 304.072(3) well-informed meaning. Judge State Schudson ambiguous, officials relied could on not extrinsic sources such as apparent legislative intent, case law, and the interplay of statutes, to determine that the phrase "term of supervision" encompasses an individual's entire sentence. He specifically noted that the apparent legislative intent behind § 304.072(3) and the provision's interplay with other parole statutes, specifically Wis. Stat. §§ 302.11(6) and (7)(d), make clear that statute. ¶10 the court of appeals erroneously interpreted the Id., ¶¶19-20 (Schudson, J., dissenting). The DOC petitioned for review of the decision of the court of appeals. We accepted review, and we now reverse. II ¶11 This case turns on whether the supervision" within Wis. Stat. § 304.072(3) phrase allows "term the retain jurisdiction over a prisoner's entire sentence. of DOC to This issue of statutory interpretation presents a question of law, which we review de novo, independently of the reasoning of the 6 No. 03-2001 circuit court and court of appeals, but benefiting from their analyses. See State v. Lombard, 2004 WI 95, ¶17, 273 is to Wis. 2d 538, 684 N.W.2d 103. ¶12 The purpose of statutory interpretation "determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. "'We assume that the legislature's intent is expressed in the Lombard, 273 Wis. 2d 538, ¶18 (quoting statutory language.'" Kalal, 271 Wis. 2d 633, ¶44). ¶13 Accordingly, our analysis of should begin with its plain language. ¶45. Wis. Stat. § 304.072(3) Kalal, 271 Wis. 2d 633, If we determine that the language of the statute "'yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.'" Id., ¶46 (quoting Bruno v. Milwaukee County, 2003 WI 28, ¶8, 260 Wis. 2d 633, 660 N.W.2d 656). statutory language is unambiguous, extrinsic sources of interpretation. we need Where such not consider See Meriter Hosp. Inc. v. Dane County, 2004 WI 145, ¶13, ___ Wis. 2d ___, 689 N.W.2d 627; see also Kalal, 271 Wis. 2d 633, ¶46. ¶14 Conversely, if the statute "is capable of being understood by reasonably well-informed persons in two or more senses," then the statute is ambiguous. ¶47. Only when the statutory Kalal, 271 Wis. 2d 633, language is ambiguous may consult extrinsic sources to ascertain legislative intent. ¶51. we Id., "By 'extrinsic sources' we mean interpretive resources 7 No. outside the history." statutory Id., ¶50 text typically (citation items omitted). of 03-2001 legislative Additionally, in certain circumstances, "[a]mbiguity can be found in the words of the statutory provision itself, or by the words of the provision as they interact with and relate to other provisions in the statute and to other statutes." State v. Sweat, 208 Wis. 2d 409, 416, 561 N.W.2d 695 (1997) (citation omitted). ¶15 agency This case also requires us to review an administrative decision. We must decide whether the DHA properly interpreted Wis. Stat. § 304.072(3) as a matter of law, and we are not bound by its determination. v. WERC, 2002 Frequently, WI we interpretation 22, ¶22, defer of a 250 to statute, See Dodgeland Educ. Ass'n Wis. 2d 357, an "[i]f 639 N.W.2d 733. administrative the agency's agency's 'experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute. . . .'" Id. (citing West Bend Educ. Ass'n v. WERC, 121 Wis. 2d 1, 12, 357 N.W.2d 534 interpretation, (1985)). this court To review generally an agency's applies one statutory of standards of review, with varying degrees of deference. three See Keup v. DHFS, 2004 WI 16, ¶12, 269 Wis. 2d 59, 675 N.W.2d 755. The three standards of deference that we apply are great weight, due weight, or de novo: See id. First, if the administrative agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute, the agency determination is entitled to "great weight." The second level of review provides that if the agency decision is "very nearly" one of 8 No. 03-2001 first impression it is entitled to "due weight" or "great bearing." The lowest level of review, the de novo standard, is applied where it is clear from the lack of agency precedent that the case is one of first impression for the agency and the agency lacks special expertise and experience in determining that question presented. Dodgeland, 250 Wis. 2d 357, ¶22 (quoting Jicha v. DILHR, 169 Wis. 2d 284, parties 290-91, agree that 485 this N.W.2d 256 case (1992)). presents a Because question of both first impression, we conclude that de novo review is applicable to the case before us. III ¶16 With these principles in mind, we turn to the statute in question. Wisconsin Stat. § 304.072(3) provides: Except as provided in s. 973.09(3)(b), the department preserves jurisdiction over a probationer, parolee or person on extended supervision if it commences an investigation, issues a violation report or issues an apprehension request concerning an alleged violation prior to the expiration of the probationer's, parolee's or person's term of supervision. ¶17 According to Dowell, the court of appeals correctly determined that Wis. Stat. § 304.072(3) was unambiguous. He contends that the phrase "term of supervision" plainly means the current period of time that a "probationer, parolee, or person on extended supervision" is being supervised. He argues that the DOC exceeded its jurisdiction by revoking his current term of parole for a violation that occurred during a previous term of parole. ¶18 The DOC, on the other hand, argues that the phrase "term of supervision" could mean one of two things. 9 First, the No. phrase could sentence." mean a "final discharge from the 03-2001 underlying Second, the phrase could mean "that a period of supervision ends when revocation or some other event occurs." Although the DOC emphasizes that the more logical interpretation is that the phrase means final discharge from the entire sentence, because the statute relates to jurisdiction over the person, it also argues that either interpretation is reasonable, thereby making the statute ambiguous. ¶19 We agree with the DOC that both interpretations of Wis. Stat. § 304.072(3) statute "is capable are of reasonable. being As understood by stated, if reasonably the well- informed persons in two or more senses," then the statute is ambiguous. Kalal, 271 Wis. 2d 633, ¶47 (citations omitted). In this case, there is inconsistency in interpreting § 304.072(3) between state agencies, the circuit court, and the court of appeals: "Here, where even State officials are at odds over the interpretation of these seemingly simple words, one thing seems quite clear: 'term of supervision' is ambiguous." Schwarz, 275 Wis. 2d 225, ¶19 (Schudson, J., dissenting). ¶20 Furthermore, if Wis. Stat. § 304.072(3) were not ambiguous, the court of appeals would not have needed to insert the word "current" into its interpretation of the statute. The court held that "[t]he only reasonable interpretation of the statute is revocation that the proceedings supervision.'" DOC's is Id., ¶11. jurisdiction limited to to the initiate current parole 'term of By adding the word "current" into its interpretation of § 304.072(3), the court of appeals attempted 10 No. to make an ambiguous provision unambiguous. 03-2001 We will not "read into the statute language that the legislature did not put in." Brauneis v. State, 2000 WI N.W.2d 635 (citation omitted). 69, ¶27, 236 Wis. 2d 27, 612 "One of the maxims of statutory construction is that courts should not add words to a statute to give it a certain meaning." Fond du Lac County v. Town of Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989) (citation omitted). statutory language, Such an action is a clear sign that the as written, is ambiguous. Upon determination of an ambiguous statute, we shift our focus to extrinsic sources for the ascertainment of legislative intent. ¶21 to We agree with the DOC that the proper methodology is examine the legislative history and case law behind Wis. Stat. § 304.072(3), and the interplay among several parole statutes. In doing so, it becomes clear to us that the legislature intended to provide the DOC with jurisdiction to enforce offender accountability throughout the term of parole, until the expiration of the entire underlying sentence. ¶22 We begin our analysis of extrinsic sources with the legislative history behind Wis. Stat. § 304.072(3).5 Subsection (3) of § 304.072 was added to the statute in 1983 Act 528, § 20.6 5 The court of appeals did not discuss the legislative history behind Wis. Stat. § 304.072(3). It held: "Inasmuch as we are satisfied that the statute is not ambiguous, we need not resort to extrinsic aids to ascertain the meaning of § 304.072(3)." 6 When 1983 Act 528 was drafted, the statute in question was numbered Wis. Stat. § 57.072. It was not renumbered until 1989 Act 107, § 1704. 11 No. 03-2001 In enacting 1983 Act 528, the legislature made various changes relating to parole. Materials were incorporated in the drafting record that provide insight into legislative intent. In the drafting record, prepared by the Legislative Reference Bureau, we find evidence of the legislature's intent to preserve DOC jurisdiction previously and held promote that offender analysis by accountability. the We Legislative have Reference Bureau "is significant in determining legislative intent." See Milwaukee v. Kilgore, 193 Wis. 2d 168, 184, 532 N.W.2d 690 (1995) (citation omitted). ¶23 In the drafting record, under the heading, "Toll on Period of Probation or Parole," the Legislative Reference Bureau stated, "[t]he bill also provides a procedure for the department to preserve certain action supervision." for the its probation prior or to parole the jurisdiction expiration of by a taking term of From this statement, we are able to find support conclusion that the legislature intended to promote offender accountability for violations by providing a method to continue jurisdiction past the expiration date for parole supervision.7 7 The DOC makes another argument that seems to strengthen its position that the legislative intent behind 1983 Wis. Act 528 was to extend personal jurisdiction over offenders on parole. It cites a drafting note in the record by Senior Legislative Attorney Bruce Feustel. The note applies to Wis. Stat. § 53.11 (later renumbered as Wis. Stat. § 302.11), and states in relevant part: Note: This addition to the revised s. 53.11 is intended to clarify that the only time which actually vests, or cannot be taken away from a convicted 12 No. ¶24 Evidence accountability of is the furnished intent to by legislature's the provide codify Cox, when enacting 1983 Act 528, § 20. for 03-2001 offender decision to While we have held that "when the legislature enacts a statute, it is presumed to do so with full knowledge of the existing law," Peters v. Menard, Inc., 224 Wis. 2d 174, 187, 589 N.W.2d 395 (1999) (citations omitted), this presumption is strengthened by direct evidence in the Drafting Record that the legislature considered the Cox decision when amending claimed that the defendant Services probation. (DHSS) did not the statute.8 Department have of In Health jurisdiction to Cox, and the Social revoke his The DHSS issued a warrant during the defendant's probationary term and did not order revocation until after his probation term was effectively over. The court of appeals held offender is time spent in prison or in jail in connection with the underlying offense. Therefore, if a parolee serves a period of time under supervision prior to violation of parole and revocation, this period is automatically forfeited, and is added to the time to be served after the parolee is rereleased. . . . 8 There is a page in the Drafting Record which states the following: "57.072 Jurisdiction of Prorlee [sic] State ex rel. Cox v. State DHSS, 105 Wis. 2d 378 Probation violation warrant issued during probation period preserved revocation jurisdiction even though not executed." See Drafting Record to 1983 Act 528, § 20. 13 No. that the DHSS had jurisdiction. 03-2001 It further held that "[t]o require custody to toll the probation period would effectively deprive the Department of any control over a probationer during the last months of the probationary term." Cox, 105 Wis. 2d at 381 (citation omitted). ¶25 We next examine the interplay among several statutes relating to parole. The DOC cites Wis. Stat. § 302.11(6)9 and (7)(d)10 for the proposition that a parolee is responsible for parole violations until the expiration of his or her underlying sentence. extended Both statutes refer only to parole, not probation or supervision, and use the phrase "expiration sentence" instead of "term of supervision." of More important, both statutes were repealed and recreated in 1983 Act 28, the same bill that produced Wis. Stat. § 304.072(3). ¶26 Dowell argues, and the court of appeals' majority agreed, that harmonizing the statutes is neither necessary nor appropriate. Dowell argues that the DOC cannot incorporate the language of other parole statutes into Wis. Stat. § 304.072(3) and ignore the legislature's use of the phrase "term of 9 Wisconsin Stat. § 302.11(6) provides, in relevant part: "Any inmate released on parole under sub. (1) or (1g)(b) or s. 304.02 or 304.06(1) is subject to all conditions and rules of parole until the expiration of the sentence or until he or she is discharged by the department." 10 Wisconsin Stat. § 302.11(7)(d) states: "A parolee who is subsequently released either after service of the period of time determined by the reviewing authority or by a grant of parole under par. (c) is subject to all conditions and rules of parole until expiration of sentence or discharge by the department." 14 No. supervision." 03-2001 The majority of the court of appeals held that because the legislature used the phrase "term of supervision," instead of the phrase "expiration of sentence," which is used in Wis. Stat. § 302.11(6) DOC's jurisdiction under § 304.072(3) and to (7)(d), commence to the it parole current Specifically, the court held: intended to revocation "term of limit the proceedings supervision." "Had the statute been worded to read that the DOC retained jurisdiction until the 'expiration of sentence' or until the 'date of the person's final discharge from parole, probation, or extended supervision,' it would yield the result desired by the DOC." ¶27 The DOC further Schwarz, 275 Wis. 2d 225, ¶16. argues that Wis. Stat. § 304.072(3) must be read together with and harmonized with other statutes relating to parole, particularly Wis. Stat. § 302.11(6) (7)(d), in order to fully discern legislative intent. and See State v. Leitner, 2002 WI 77, ¶30, 253 Wis. 2d 449, 646 N.W.2d 341 (footnote omitted) ("[a] general rule of statutory interpretation is that statutes dealing with the same subject matter should be read together and harmonized"). The DOC maintains that §§ 302.11(6) and (7)(d) clearly demonstrates that the DOC's jurisdiction is not divided into terms, but is rather one single term of continuous supervision. ¶28 statutes We agree relating with to the DOC parole is intent that the helpful behind in the interplay among determining phrase "term the legislature's apparent of supervision." It is our duty to attempt to harmonize statutes that are allegedly in conflict, if it is possible, "in a way 15 No. which will give each full force and Wis. 2d at 184 (citation omitted). effect." 03-2001 Kilgore, 193 As stated, both Wis. Stat. § 302.11(6) and (7)(d) use the term "expiration of sentence" when referring to the DOC's jurisdiction of parole violations. This is important to emphasize, because the majority of the court of appeals denied jurisdiction, in part, on its holding that the legislature instead chose to use the phrase supervision" when enacting Wis. Stat. § 304.072(3). with the reasoning legislature sentence" could of not the have in § 304.072(3), court of used because appeals' the The "expiration statute of We disagree majority. phrase that "term applies of to parole, probation, and extended supervision, and probation is not a sentence. Judge Schudson, in his dissent, stated that this "all but defeats the majority's rationale." Schwarz, 275 Wis. 2d 225, ¶20 (Schudson, J., dissenting). ¶29 We also recognize that Wis. Stat. § 304.072(3) concerns the DOC's jurisdiction of a person, rather than the Department's violation.11 jurisdiction, specifically, over a parole The circuit court correctly made this distinction and we agree with its reasoning: The hearing examiner and the Division relied entirely on § 304.072(3), however this statute is silent with 11 The circuit court correctly held that Wis. Stat. § 304.072(3) is a personal jurisdiction statute. It held: "Section 304.072(3) allows the department to retain jurisdiction over a person on supervision after the regularly scheduled maximum discharge date when the DOC takes one of three prescribed actions. . . . [T]his statute is silent with respect to the department's jurisdiction over a parole violation." 16 No. 03-2001 respect to the department's jurisdiction over a parole violation. For this reason, the court must look to other statutes governing parole violation. Specifically, § 304.06(3)12 provides that every paroled prisoner remains in custody of the department until his or her discharge date, and the department may take physical custody of any prisoner for the investigation of alleged parole violations. Section 304.072(3), when read in conjunction with other statutes governing parole supervision, implicitly authorizes the department to hold offenders accountable for all behaviors in violation of the rules until final discharge from the entire sentence. ¶30 We agree with the DOC that the legislative history, codification of Cox, and the interplay among the statutes discussed are "instructive as to how and when an offender is suspected of discharge." violating supervision and the case is near This evidence of legislative intent surrounding the enactment of Wis. Stat. § 304.072(3) strengthens our conclusion that the legislature intended to preserve DOC jurisdiction until the offender's final date of discharge from his or her entire sentence. ¶31 above, 12 Our is interpretation also consistent of with legislative sound intent, principles of stated public Wisconsin Stat. § 304.06(3) states, in relevant part: Every paroled prisoner remains in the legal custody of the department unless otherwise provided by the department. If the department alleges that any condition or rule of parole has been violated by the prisoner, the department may take physical custody of the prisoner for the investigation of the alleged violation. If the department is satisfied that any condition or rule of parole has been violated it shall afford the prisoner such administrative hearings as are required by law. 17 No. policy. By allowing the DOC to retain 03-2001 jurisdiction over a parolee until the parolee's date of discharge from the entire sentence, we are allowing it to hold an offender accountable for all violations committed during his or her entire sentence. In this be case, our decision means that Dowell's parole will revoked, and he will serve the final two years, one month, and 14 days of his original sentence in prison. Any other interpretation could, in effect, create amnesty for a parole offender who committed a violation during an earlier period of parole, and reward such offender for successfully concealing the violation. ¶32 Both Dowell and the majority of the court of appeals argue, however, that because Dowell was convicted criminally for his parole violation, he will be held sufficiently accountable. The court of appeals' majority held "[a]ny criminal act committed during an earlier parole is subject to a new criminal charge. Dowell can attest to this fact his violation resulted in an eighty-year sentence." earlier parole Schwarz, 275 Wis. 2d 225, ¶17. ¶33 Although this may satisfy the accountability concern in this particular case, we recognize that in other cases it will not. For example, under the approach of the majority of the court of appeals, if Dowell, or an offender like him, had committed a noncriminal parole violation during his first period of parole, that was not uncovered during that initial parole period, there would be no accountability or liability for the violation. We recognize that because "parole may be revoked for 18 No. 03-2001 conduct which does not violate the criminal law," State ex rel. Flowers v. (citation H&SS, 81 omitted), Wis. 2d 376, a 385, violation jurisdiction, would go unpunished. 260 of N.W.2d 727 parole, (1978) absent DOC This clearly violates public policy favoring accountability. ¶34 Additionally, our interpretation of Wis. Stat. § 304.072(3) results in the treatment of all parole violators with fairness and consistency. This point is illustrated with an example that the DOC provided in its brief: Offender A is convicted of First Degree Sexual Assault and receives a 20-year sentence. Offender A is released to parole after 10 years, but is revoked for absconding and returned to prison for one year and subsequently released again to parole. After several months the agent discovers Offender A committed another sexual assault during the first term of parole and gets a no revoke ruling pursuant to the Division of Hearings and Appeals' position in this case. Compare this to Offender B with an identical sentence structure who is revoked after two years on parole for committing a sexual assault and is returned to prison for the entire ten years remaining on the sentence. Similar violations, but remarkably dissimilar results. Moreover, this disparity is unfair to both offenders and victims. Such a system does not promote consistency, fairness or public safety. (Footnote omitted.) ¶35 Although the court of appeals' majority based its decision, in part, on its view of public policy, its position is not persuasive. The majority stated: "Not only would stale violations be difficult to prove or defend against, but a truly rehabilitated person who earned the right to be paroled might be confronted with long-ago violations earlier 'term of supervision.'" 19 never pursued during the Schwarz, 275 Wis. 2d 225, ¶16. No. 03-2001 While these policy concerns may be legitimate, they are trumped by the need for offender accountability, concern with rehabilitation, and the need for fairness and consistency within the parole system. IV ¶36 In sum, we hold that the phrase "term of supervision" in Wis. Stat. § 304.072(3) is ambiguous, since it can reasonably be interpreted to apply to both the current term of supervision and any time prior to the final discharge from an underlying sentence. We rely upon extrinsic sources such as the legislative history and relevant case law behind § 304.072(3), and the interplay among parole statutes to determine that "term of supervision" was intended to apply to all parole violations that occur before the offender's date of discharge from his or her entire sentence. We conclude that the legislature intended to promote offender accountability and, therefore, the DOC had jurisdiction to revoke Dowell's parole for a violation that he committed during his first period of parole supervision. By the reversed, Court. The and the cause decision is of remanded consistent with this opinion. 20 the for court of further appeals is proceedings No. ¶37 (dissenting). SHIRLEY S. ABRAHAMSON, C.J. 03-2001.ssa I would affirm the decision of the court of appeals. ¶38 The question proceedings authorized presented by is Wis. whether Stat. parole revocation § 304.072(3) can be initiated during a second term of parole based solely on the parolee's conduct during the parolee's first term of parole. To "answer" this question, the majority opinion examines case law, legislative history, and other statutes. None of these sources supports the majority opinion's holding. ¶39 The lone case-law I therefore dissent. authority, State ex rel. Cox v. DHSS, 105 Wis. 2d 378, 314 N.W.2d 148 (Ct. App. 1981), does not support the majority's holding. stands for a jurisdiction warrant simple over before a the See majority op., ¶24. proposition: probationer expiration the revocation issues of running of that term is tolled.13 and When proceedings the the a department probation probationary of revocation appeals correctly proceedings to term, the The execution of the warrant need noted occur with violation not occur within probationary term, only the issuance of the warrant.14 court Cox in within Cox, the to that As the require probationary all term would "effectively deprive the Department of any control over a probationer during the last months of the probationary term."15 13 State ex rel. Cox v. DHSS, 105 Wis. 2d 378, 380, 314 N.W.2d 148 (Ct. App. 1981). 14 Id. at 381. 15 Id. 1 No. ¶40 Cox's holding remains a simple 03-2001.ssa proposition when applied to the instant case: If the Department wants to revoke parole before initiate the expiration revocation of proceedings the before parole the term, it expiration must of the parole term. ¶41 Cox brings us no closer to understanding what "term of supervision" might mean. Cox neither uses the phrase "term of supervision" nor deals with a situation in which the defendant was twice placed on parole or probation and the second parole or probation term was revoked based on conduct occurring during the first term. ¶42 Legislative holding. According history to does the not majority support the opinion, majority's the drafting records indicate that Wis. Stat. § 57.072 (the precursor to Wis. Stat. § 304.072) codified Cox.16 I agree, but without more, the legislative history is no more useful than is Cox in divining the meaning of the phrase "term of supervision." ¶43 majority The drafting records provide two tea leaves for the opinion to contemplate; presented in this case. posits, "Probation period preserved executed."17 neither resolves the issue One hand-written note cites Cox and violation revocation warrant issued jurisdiction during even probation though not Another note in the record succinctly states what the Legislature likely gleaned from Cox: "The bill also provides a procedure for the department to preserve its probation or 16 Majority op., ¶24 (citing 1983 Act 528, § 20). 17 Id., ¶24 n.8 (citing Drafting records for 1983 Act 528). 2 No. parole jurisdiction by taking certain action expiration of a term of supervision."18 03-2001.ssa prior to the Neither Cox, nor the legislative history codifying Cox, provides the answer to the question presented. ¶44 appeals, The majority opinion, like the dissent in the court of then turns to other statutes, putting significant weight on language contained in Wis. Stat. §§ 302.11(6)19 and (7)(d).20 all These two statutes state that a parolee is subject to conditions and [the] sentence" department." "expiration or rules of parole until he or until she is the "expiration "discharge[d] by of the These two chapter 302 statutes use the phrases of [the] sentence" and "discharge[d] by the department" rather than the phrase "term of supervision." ¶45 The chapter 302 provisions do not provide a mechanism for revocation of parole, probation, or extended supervision. They certainly do not tell us what "term of supervision" means; they never use the phrase. They do not tell us whether Wis. Stat. § 304.072(3) allows action taken by the Department in a 18 Id., ¶23 (citing Drafting Records for 1983 Act 528). 19 Wisconsin Stat. § 302.11(6) reads in relevant part as follows: "Any inmate released on parole . . . is subject to all conditions and rules of parole until the expiration of the sentence or until he or she is discharged by the department." 20 Wisconsin Stat. § 302.11(7)(d) reads in relevant part as follows: "A parolee who is subsequently released either after service of the period of time determined by the reviewing authority or by a grant of parole . . . is subject to all conditions and rules of parole until expiration of sentence or discharge by the department." 3 No. 03-2001.ssa second term of parole to be based solely on conduct occurring during a parolee's first term of parole. ¶46 After reviewing the three sources upon which the majority hangs its hat, the question remains: What does "term of supervision" as used in Wis. Stat. § 304.072(3) mean, and can conduct during a term of parole lead to revocation of a second term of parole? None of the sources, separately or together, support any more than the simple proposition first stated in Cox: The Department tolls the running of a term of probation, parole, or extended supervision when it takes certain action before the expiration of that term. ¶47 I agree with the court of appeals that the statutory phrase "term of supervision" means exactly what it says. text of the statute matters. The When the legislature wanted to refer to "expiration of the sentence" and "discharged by the department," it used those words. ¶48 The Department of Corrections' jurisdiction in parole matters is limited to seeking revocation only for violations that occur during that term of supervision. This interpretation does not hinder the state in prosecuting crime and does not threaten public safety. The State can prosecute a parolee for criminal conduct committed during any period of parole, and the parolee may be subject to imprisonment. In the present case, for example, the defendant's parole violation during his first parole was prosecuted as a crime, resulting in an eighty-year sentence. ¶49 For the reasons set forth, I dissent. 4 No. ¶50 I am authorized to state that Justices BRADLEY and LOUIS B. BUTLER, JR. join this dissent. 5 03-2001.ssa ANN WALSH No. 1 03-2001.ssa
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