State Ex Rel. Girouard v. Circuit Court for Jackson County
State Ex Rel. Girouard v. Circuit Court for Jackson County
Opinion of the Court
Richard Girouard, an incarcerated indigent, appeals
The trial court ordered that Girouard, an incarcerated indigent, be denied visitation rights with his daughter. Girouard then moved the court for an order waiving transcription costs pursuant to sec. 814.29(1), Stats., so he could appeal the court’s order denying him visitation rights. The court denied Girouard’s motion, and he appeals.
The question whether sec. 814.29(1), Stats., provides an indigent a right to a free transcript so he can appeal from an order denying him visitation rights requires statutory interpretation. We review such questions de novo. E.S. v. Seitz, 141 Wis. 2d 180, 184, 413 N.W.2d 670, 672 (Ct. App. 1987).
Our purpose in construing a statute is to ascertain the legislature’s intent and give it effect. Our primary source in construing a statute is that statute’s language, and, absent ambiguity, our duty*581 is to give that language its ordinary meaning. The “entire section of a statute and related sections are to be considered” in construing or interpreting the words of a statute. The threshold question in reviewing a statute is whether the statutory language is ambiguous, that is, if “reasonable persons could disagree as to its meaning.” If a statute is unclear, we will “endeavor to discover the legislature’s intent as disclosed by the scope, history, context, subject matter and purpose of the statute.”
Dieckhoff v. Severson, 145 Wis. 2d 180, 189-90, 426 N.W.2d 71, 73 (Ct. App. 1988) (citations omitted). Section 814.29(1), Stats., provides in part:
Any person may commence, prosecute or defend any action or proceeding in any court, or any writ of error or appeal therein, without being required to give security for cost or to pay any service or fee, upon filing in the court, and receiving approval of the affidavit by the court, his or her affidavit that because of his or her poverty the person is unable to pay the costs of the action or proceeding, or any writ of error or appeal therein, or to give security for the same, and that the person believes that he or she is entitled to the redress that he or she seeks in the action or proceeding, or writ of error or appeal, and setting forth briefly the nature of the cause or appeal, or defense.
It is undisputed that the trial court approved Girouard’s sec. 814.29(1), Stats., affidavit. The court denied Girouard’s motion because it concluded that the costs and fees waivable under sec. 814.29(1) did not include transcription costs. On appeal, Girouard claims that the terminology “any service or fee” in sec. 814.29(1) includes transcription costs. The state contests this interpretation.
Section 814.29(1), Stats., was amended by sec. 85vx, ch. 317, Laws of 1981. It previously read, “[a]ny person may commence, prosecute or defend any ... appeal ... without being required to give security for
We first consider whether, prior to the 1981 amendment, sec. 814.29(1), Stats., allowed indigents free transcripts in civil appeals. This would be so if the items listed, i.e., “service or clerk’s fee or suit tax,” included transcript preparation costs. A “service fee” meant then, as now, the amount the sheriff collected for serving, or attempting to serve, a summons or any other process. Sec. 59.28(1), Stats. 1979; sec.' 814.70(1). Transcript costs were not listed under “clerk’s fees” before the 1981 amendment nor after. Sec. 59.42(2), Stats. 1979; sec. 814.61. Nor were transcript costs included in the “suit tax.” Sec. 814.21, Stats. 1979. We conclude that prior to the 1981 amendment, sec. 814.29(1) did not provide for free transcripts for indigents in a civil appeal.
The next question is whether the legislature’s intent in amending sec. 814.29(1), Stats., was to provide indigent appellants in civil cases with free transcripts. We think not. Section 85vx, ch. 317, Laws of 1981, changed the phrase “service or clerk’s fee or suit tax” in the prior version of sec. 814.29(1), to “service or fee.” Under Girouard’s theory, this word change expanded the class of those items previously included in the statute to include civil appeal transcript costs. However, the drafting record of 1981 Senate Bill 783, which became ch. 317, Laws of 1981, contains no indication
Girouard also argues that court reporter fees for transcripts are now listed under subchapter II, Court Fees, ch. 814, Stats., and are therefore waivable under sec. 814.29(1). This argument fails in view of our earlier holding. Because we conclude that “service or fee” as used in sec. 814.29(1) does not encompass the cost of a transcript in a civil appeal, we affirm the trial court’s order.
By the Court. — Order affirmed.
Girouard filed his petition for a supervisory writ with both the clerk of the court of appeals and the clerk of the circuit court. Notices of appeal are filed with the clerk of the circuit court. Sec. (Rule) 809.10(1), Stats. We may construe petitions for supervisory
Dissenting Opinion
(dissenting). We may, in an appropriate case, interpolate, reject and transpose words in a statute to render a legislative enactment capable of being given a sensible effect in accordance with the purpose of the lawmakers. NCR Corp. v. Revenue Dept., 128 Wis. 2d 442, 457, 384 N.W.2d 355, 363 (Ct. App. 1986). However, “[u]nless an interpretation of a statute would lead to ludicrous or plainly unintended results, our function is not to rewrite the statute.” In Interest of G. & L.P., 119 Wis. 2d 349, 355, 349 N.W.2d 743, 746 (Ct. App. 1984) (emphasis added). Unfortunately, in this case we cannot know, but only suspect that when the legislature amended sec. 814.29(1), Stats., it dropped a stitch.
I agree with Judge Learned Hand that, “There is no surer way to misread any document than to read it literally_” Guiseppi v. Walling, 144 F.2d 608, 624 (2d
By ch. 317, Laws of 1981, secs. 85vg through 85vy, the legislature collected, revised and reenacted statutes relating to court costs and fees. Many of these sections had been scattered throughout the statutes. In the process, the legislature struck from sec. 814.29(1), Stats., “clerk’s” and “or suit tax.” The resulting statute permits waiver of “any service or fee.“ The majority
Presumably, clerk’s fees will still be waivable. If not, the statute is meaningless. To achieve that result, however, the majority restores a word to the statute which the legislature purposively deleted. I believe we should give the word “fee” in sec. 814.29(1), Stats., its plain meaning and allow the legislature to pick up the dropped stitch. I respectfully dissent.
The majority suggests that the vast number of cases holding as does Smith have been overruled sub silentio by County of Milwaukee v. LIRC, 139 Wis. 2d 805, 818, 407 N.W.2d 908, 913 (1987), and K.L. v. Hinickle, 144 Wis. 2d 102, 109, 423 N.W.2d 528, 531 (1988). The court in those cases merely noted that the parties disagreed as to the meaning of a statute. Even where the parties agree that a statute is ambiguous, we are not bound by that agreement. Rev. Dept. u. EAA Aviation Foundation, 143 Wis. 2d 681, 684, 422 N.W.2d 458, 460 (Ct. App. 1988). I refuse to accept that the Wisconsin Supreme Court in the cited cases intended, without discussion, to overrule a canon of statutory construction firmly implanted in the jurisprudence of all states and all federal jurisdictions.
Reference
- Full Case Name
- STATE of Wisconsin EX REL. Richard Arthur GIROUARD, Petitioner, v. CIRCUIT COURT FOR JACKSON COUNTY, Hon. Robert W. Radcliffe, Presiding, Respondent
- Cited By
- 5 cases
- Status
- Published