PUBLISHED OPINION
Case No.: 95-2249
Complete
Title
of
Case:STATE OF
WISCONSIN,
Plaintiff-Respondent,
v.
DOUGLAS D. SCHOEPP,
Defendant-Appellant.
Submitted
on Briefs: July 12, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: August 29, 1996
Opinion
Filed: August
29, 1996
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Daniel
R. Moeser
so
indicate)
JUDGES: Eich,
C.J., Dykman, P.J., and Vergeront, J.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the defendant-appellant the
cause was submitted on the briefs of Ralph A. Kalal of Kalal &
Associates of Madison.
Respondent
ATTORNEYSFor the plaintiff-respondent the
cause was submitted on the brief of James E. Doyle, attorney general,
and Pamela Magee, assistant attorney general.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED August
29, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-2249
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DOUGLAS
D. SCHOEPP,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Dane County: DANIEL R.
MOESER, Judge. Reversed and cause
remanded.
Before
Eich, C.J., Dykman, P.J., and Vergeront, J.
DYKMAN,
P.J.[1] This
is an interlocutory appeal heard pursuant to § 809.50, Stats.
Douglas D. Schoepp appeals from an order granting the State's motion to
quash subpoenas issued by Schoepp to depose officers involved in his arrest. Schoepp argues that the rules of discovery
provided by Chapter 804, Stats.,
apply to refusal proceedings instituted under § 343.305(9), Stats.
We agree and therefore reverse.
BACKGROUND
On
January 29, 1995, Lieutenant William Housley of the Madison Police Department
arrested Schoepp for operating a motor vehicle while under the influence of an
intoxicant, contrary to a city ordinance conforming with § 346.63(1)(a), Stats.
Housley read Schoepp the "informing the accused" form[2]
and requested that Schoepp submit to a chemical blood alcohol test.[3] Schoepp allegedly refused to submit to the
test, and Housley issued a notice of intent to revoke Schoepp's operating
privilege.[4] Pursuant to § 343.305(9), Stats., Schoepp filed a demand for a
refusal hearing.
Prior
to the refusal hearing, Schoepp issued subpoenas for the deposition of the
arresting officer and other police officers who were involved in his arrest and
the events leading up to his alleged refusal to submit to chemical testing. The State moved the circuit court for an
order quashing the subpoenas. The
circuit court concluded that a defendant is not entitled to discovery prior to
a refusal hearing and quashed Schoepp's subpoenas. Schoepp appeals.
DISCUSSION
Schoepp
argues that under § 801.01(2), Stats.,
the rules of discovery in Chapter 804, Stats.,
apply to refusal hearings. Section
801.01(2) provides: "Chapters 801
to 847 govern procedure and practice in circuit courts of this state in all
civil actions and special proceedings whether cognizable as cases at law, in
equity or of statutory origin except where different procedure is prescribed by
statute or rule."
In
determining whether the discovery procedures of Chapter 804, Stats., apply to refusal hearings,
§ 801.01(2), Stats., directs
us to make two inquiries. First, we
must determine whether refusal hearings are "civil actions" or
"special proceedings."
Second, we must determine whether the statutes prescribe different
discovery procedures for refusal hearings.
In State v.
Jakubowski, 61 Wis.2d 220, 224 n.2, 212 N.W.2d 155, 157 (1973), the
Wisconsin Supreme Court concluded that "a proceeding under sec. 343.305 is
a special proceeding and must be so defined." The State does not take issue with this holding. We conclude that a refusal hearing is a
special proceeding for purposes of § 801.01(2), Stats.
The
State does argue, however, that there is a different statutory discovery
procedure for refusal hearings, and therefore Chapter 804, Stats., does not apply to them. This is an issue of statutory construction
and interpretation, which we review de novo. See DOR v. Milwaukee Brewers Baseball Club,
111 Wis.2d 571, 577, 331 N.W.2d 383, 386 (1983). First, we examine the language of the statutes to determine
whether the language is clear or ambiguous.
State v. Dwyer, 181 Wis.2d 826, 836, 512 N.W.2d 233, 236
(Ct. App. 1994). If the language is
clear, we must give effect to its plain meaning. Id.
Section
343.305(9)(a), Stats., provides
that "[t]he officer shall issue a copy of the notice of intent to revoke
the privilege to the person."[5] The State argues that the notice of intent
to revoke provides the defendant with much of the information relevant in a
refusal hearing, and therefore it provides a discovery procedure different than
the procedure set forth in Chapter 804, Stats. The notice of intent to revoke, however, is
akin to the summons and complaint requirements of Chapters 801 and 802, Stats., not the discovery procedures
provided for in Chapter 804. And the issues Schoepp raises in this case
go beyond the information given to him by the notice of intent to revoke.
In
most civil actions in Wisconsin, a summons and complaint must be served on the
defendant. See §§ 801.11
and 801.14, Stats. The purpose of the complaint is to give
notice of the nature of the claim. Morgan
v. Pennsylvania Gen. Ins. Co., 87 Wis.2d 723, 731, 275 N.W.2d 660, 664
(1979). Likewise, the notice of intent
to revoke gives a defendant notice of the allegations pursuant to which the
State intends to revoke the defendant's operating privilege. Chapter 804, Stats., on the other hand, provides for depositions,
interrogatories and other forms of discovery.
The
plain language of § 801.01(2), Stats.,
provides that Chapter 804, Stats.,
governs practice in circuit courts in all special proceedings "except
where different procedure is prescribed by statute or rule." Section 343.305, Stats., does not provide a different means for a defendant in
a refusal hearing to obtain depositions, interrogatories and other discovery,
nor does it provide that discovery is not available prior to refusal hearings.[6] Because the statutes do not provide
different discovery procedures for refusal hearings, we conclude that the
discovery procedures of Chapter 804 apply.
The
State argues that it would be inconsistent with the purpose behind drunk
driving laws to allow discovery prior to refusal hearings.[7] The Wisconsin Supreme Court, however, has
stated that when statutory language is clear and unambiguous, we are to
ascertain the legislature's intent by construing the plain language of the
statute. We are then not to look to the
statute's scope, history, context, subject matter or purpose. UFE Inc. v. LIRC, 201 Wis.2d
274, 281-82, 548 N.W.2d 57, 60 (1996).
We agree that discovery adds some time to a case. But § 801.01(2), Stats., is clear. We would have to ignore the supreme court's
holding in UFE were we to adopt the State's argument. It is a legislative function to say that
because of one statute's purpose, we will add language which simply does not
now exist to another statute. This is
an error correcting court. State
ex rel. Swan v. Elections Bd., 133 Wis.2d 87, 93, 394 N.W.2d 732, 735
(1986). What the State asks us to do is
hardly error correcting.
The
State does not argue that the statutes are ambiguous. We, too, have concluded that § 801.01(2), Stats., unambiguously states that
Chapter 804, Stats., applies
to refusal hearings except where different procedure is prescribed by
statute. We have also concluded that
neither § 343.305, Stats.,
nor any other statute provides a procedure for discovery in refusal hearings
different than the procedure set forth in Chapter 804. Because both § 343.305 and
§ 801.01(2) are clear and unambiguous with respect to the issue in this
case, we conclude that the discovery procedures contained in Chapter 804 apply
to refusal hearings.
By
the Court.—Order reversed and
cause remanded.
[1] The chief judge ordered that this case would
be heard by a three-judge panel. See
§ 809.41, Stats.
[2] When a chemical test specimen is requested
from a person arrested under an ordinance conforming with section 346.63(1), Stats., the arresting officer must read
the "informing the accused" form to the person arrested. Section 343.305(4), Stats.
[3] Under § 343.305(3)(a), Stats.:
Upon arrest of a
person for violation of s. 346.63 (1) ... or a local ordinance in conformity
therewith ... a law enforcement officer may request the person to provide one
or more samples of his or her breath, blood or urine for the purpose [of
determining the presence or quantity in his or her blood or breath, of alcohol,
controlled substances, a combination of alcohol and controlled substances,
other drugs or a combination of alcohol and other drugs]....
[4] Under § 343.305(9)(a), Stats., "If a person refuses to
take a test under sub. (3)(a), the law enforcement officer shall immediately
take possession of the person's license and prepare a notice of intent to
revoke ... the person's operating privilege."
[5] Section 343.305(9)(a), Stats., provides in relevant part:
The notice of intent to revoke the person's operating
privilege shall contain substantially all of the following information:
1. That prior
to a request under sub. (3)(a), the officer had placed the person under arrest
and issued a citation, if appropriate, for a violation of s. 346.63 (1) ... or
a local ordinance in conformity therewith ....
2. That
the officer complied with sub. (4) or both subs. (4) and (4m).
3. That
the person refused a request under sub. (3)(a).
4. That
the person may request a hearing on the revocation within 10 days ....
5. That
the issues of the hearing are limited to:
a. Whether
the officer had probable cause to believe the person was driving or operating a
motor vehicle while under the influence of alcohol ... and whether the person
was lawfully placed under arrest for violation of s. 346.63 (1) ... or a local
ordinance in conformity therewith ....
b. Whether
the officer complied with sub. (4) or both subs. (4) and (4m).
c. Whether
the person refused to permit the test....
6. That,
if it is determined that the person refused the test, there will be an order
for the person to comply with assessment and a driver safety plan.