PUBLISHED OPINION
Case Nos.: 94-2947
94-2948
Complete Title
of Case:
In re the Appointment of Counsel
in State v. Richard J. Wittig:
STATE PUBLIC DEFENDER,
Appellant,
v.
CIRCUIT COURT FOR
FOND DU LAC COUNTY and
HON. JOHN W. MICKIEWICZ,
Respondents.
Submitted on Briefs: August 22, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: October 25, 1995
Opinion Filed: October 25, 1995
Source of APPEAL Appeals
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Fond du Lac
(If "Special", JUDGE: JOHN W. MICKIEWICZ
so indicate)
JUDGES: Brown,
Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the appellant, the cause was submitted on the briefs of James E.
Doyle, attorney general, and Mary Woolsey Schlaefer, assistant
attorney general.
Respondent
ATTORNEYSOn
behalf of the respondents, the cause was submitted on the brief of John A.
St. Peter and Paul W. Rosenfeldt of Edgarton, St. Peter, Petak,
Massey & Bullon of Fond du Lac.
AmicusOn
behalf of the Wisconsin Counties Association, there was an amicus curiae brief
by Robert Horowitz of Stafford, Rosenbaum, Rieser & Hansen of
Madison.
|
COURT OF APPEALS DECISION DATED AND RELEASED October 25, 1995 |
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. |
Nos. 94-2947
94-2948
STATE
OF WISCONSIN IN COURT OF
APPEALS
In re the Appointment
of Counsel
in State v. Richard J.
Wittig:
STATE PUBLIC DEFENDER,
Appellant,
v.
CIRCUIT COURT FOR
FOND DU LAC COUNTY and
HON. JOHN W.
MICKIEWICZ,
Respondents.
APPEALS from an order of
the circuit court for Fond du Lac County: JOHN W. MICKIEWICZ, Judge. Reversed.
Before Brown, Nettesheim
and Snyder, JJ.
SNYDER, J. The
State Public Defender (SPD) appeals from an order requiring its office to
appoint counsel for Richard J. Wittig at state expense without right of
reimbursement from Fond du Lac County.
The SPD had determined that Wittig did not qualify as indigent according
to its written standards. See Wis. Adm. Code §§ PD 3.01-3.06. Judge John W. Mickiewicz reviewed this
determination and ruled that the SPD had properly concluded that Wittig did not
qualify as indigent. The court then
determined that the SPD administrative rules defining indigency are more
narrowly drawn than the legislature intended and are therefore invalid. Because we conclude that the court did not have
jurisdiction to invalidate the rule, we reverse.
Wittig was charged with
three misdemeanors in two separate court cases.[1] He completed an indigency evaluation form
for each case, requesting appointment of counsel by the SPD office. Based on the information Wittig provided,
the SPD determined that he was not indigent according to its written
standards. See Wis. Adm. Code §§ PD 3.03, 3.038.
Wittig then filed a
motion requesting appointment of counsel, at public expense, based on
indigency.[2] A hearing was held on the motion, and the
court conducted a review of the SPD's determination of indigency. The court found that the SPD had properly
concluded that Wittig did not qualify as indigent under Wis. Adm. Code §§ PD 3.01-3.06.[3] However, based on Wittig's indigency
affidavit and responses to questions, the court determined that Wittig met a
“constitutional, or working, real-world definition of indigency,” and therefore
required the appointment of counsel.
Following this, the court found that the administrative regulations of
the SPD's office are unreasonably narrow and “do not meet the mandate of
Chapter 977 ....”[4] Interpreting the legislature's mandate in
ch. 977, Stats., as providing
counsel at state expense for all indigent defendants, the court then
ordered the SPD to provide counsel for Wittig at state expense, and this appeal
followed.
An appellate court is
not bound by a trial court's conclusions of law and decides the matter de
novo. First Nat'l Leasing Corp.
v. City of Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253
(1977). Although our standard of review
is de novo, we nonetheless value the trial court's decision. Scheunemann v. City of West Bend,
179 Wis.2d 469, 475, 507 N.W.2d 163, 165 (Ct. App. 1993). Just as statutory interpretation presents a
question of law, so does the interpretation of a regulation. Franklin v. Housing Auth., 155
Wis.2d 419, 425-26, 455 N.W.2d 668, 672 (Ct. App. 1990). A matter of statutory construction is
resolved without deference to the trial court.
Wisconsin Hosp. Ass'n v. Natural Resources Bd., 156 Wis.2d
688, 705, 457 N.W.2d 879, 886 (Ct. App. 1990).
We first discuss the
jurisdictional grounds for the trial court's order. If, as we conclude, the court lacked subject matter jurisdiction,
then the issue of the validity of the SPD rules regarding indigency is not
before this court. If the trial court
lacked jurisdiction, we lack appellate jurisdiction. Harris v. Reivitz, 142 Wis.2d 82, 90, 417 N.W.2d
50, 53 (Ct. App. 1987).
Where a specified method
of review is prescribed by statute, the method so prescribed is exclusive. Sewerage Comm'n v. DNR, 102
Wis.2d 613, 630, 307 N.W.2d 189, 198 (1981).
Failure to strictly comply with the prescribed procedure deprives the
court of subject matter jurisdiction to conduct the review. Harris, 142 Wis.2d at 92, 417
N.W.2d at 54.
Section 227.40, Stats., establishes the exclusive means
for obtaining a judicial determination of the validity of an administrative
rule.[5] See Sewerage Comm'n,
102 Wis.2d at 629, 307 N.W.2d at 197; see also Liberty Homes, Inc.
v. DILHR, 136 Wis.2d 368, 373, 401 N.W.2d 805, 807 (1987). Section 227.40 provides in relevant part:
Declaratory judgment proceedings.
(1) Except as provided in sub. (2), the
exclusive means of judicial review of the validity of a rule shall be an action
for declaratory judgment as to the validity of such rule brought in the circuit
court for Dane county. The officer,
board, commission or other agency whose rule is involved shall be the party
defendant.
The
exceptions set forth in sub. (2) allow the court to determine the validity of a
rule if such a determination is material to one of the following:
(a)
Any civil proceeding by the state or any officer or agency thereof to
enforce a statute or to recover thereunder ....
(b)
Criminal prosecutions;
(c)
Proceedings or prosecutions for violations of county or municipal
ordinances;
(d)
Habeas corpus proceedings relating to criminal prosecution;
(e) Proceedings
under s. 66.191, 1981 stats., or s. 40.65(2), 101.22, 303.07(7) or 303.21 or
ss. 227.52 to 227.58 or under ch. 102, 108 or 949 for review of decisions and
orders of administrative agencies ....
Under the listed
exceptions, § 227.40(2)(b), Stats.,
is the only provision that could arguably apply to these facts. Under subsec. (2)(b), a court is authorized
to determine the validity of an administrative rule if it is material to a
criminal prosecution. We conclude that
the meaning of “criminal prosecution” in para. (b) is ambiguous because it is
not clear what types of proceedings that phrase encompasses. A statute is ambiguous if reasonable persons
could disagree as to its meaning. LaRene
v. LaRene, 133 Wis.2d 115, 119, 394 N.W.2d 742, 744 (Ct. App.
1986).
Because of this
ambiguity, we look to legislative history and extrinsic aids. The aim of statutory construction is to
determine the intent of the legislature, which may be discerned from extrinsic
aids, including the legislative history.
Wieczorek v. City of Franklin, 82 Wis.2d 19, 23, 260
N.W.2d 650, 652 (1978). We apply rules
of statutory construction to determine whether a proceeding to review the SPD's
determination of indigency is a “criminal prosecution.”
A “prosecution,” according
to Black's Law Dictionary 1221
(6th ed. 1990), is “[a] criminal action; a proceeding ... for the purpose of
determining the guilt or innocence of a person charged with crime.” While Wittig has been charged with several
misdemeanors, the purpose of the hearing from which the appeal arises was to
review the SPD's indigency determination.
It was not the purpose of the hearing to make any determination of
Wittig's guilt or innocence, but merely to decide whether Wittig was eligible
for court-appointed counsel.
The legislative history
of § 227.40, Stats., provides
further support for this position. In
explaining the forms of proceedings in which the validity of a rule may be
reviewed, one example cited is if “a person is charged in a criminal action
with violating a rule, he clearly can contest the validity of the rule in that
action.” Report of the Wisconsin Legislative Council, Vol. II, Part I,
Conclusions and Recommendations of the Committee on Administrative Rule Making,
at 8 (Dec. 1954). There is no mention
of proceedings such as the indigency hearing conducted in this case. See § 977.07(3), Stats.
We conclude that a
proceeding under § 977.07(3), Stats.,
to review the SPD's determination that Wittig was not indigent is not one of
the types of proceedings in which a court is authorized under § 227.40(2), Stats., to determine the validity of an
administrative rule. Since that is the
case, we are left with the requirements of § 227.40(1). As outlined in that subsection, the
exclusive means of judicial review is an action for declaratory judgment
brought in the circuit court for Dane County.
Having failed to follow
the procedures outlined in § 227.40(1), Stats.,
the court was without subject matter jurisdiction to invalidate the SPD
rule. Accordingly, we reverse the order
of the trial court.
By the Court.—Order
reversed.
[1] There was a third case, scheduled to be heard before a different judge, for which Wittig also filed an indigency affidavit. That case is not part of this appeal.
[2] If an individual fails to qualify for a state public defender under Wis. Adm. Code §§ PD 3.01‑3.06, the court is still bound to determine whether the individual is unable to afford counsel. See State v. Dean, 163 Wis.2d 503, 511, 471 N.W.2d 310, 313‑14 (Ct. App. 1991). If the court determines that a defendant's situation requires the appointment of counsel, the cost for appointed counsel is imposed on the county. Id. at 515-16, 471 N.W.2d at 315.
[3] This section is entitled “Indigency Criteria” and outlines the computations that must be made in order to determine an individual's eligibility for defense counsel at state expense.