STATUTES

Updated 1/27/10


Validity of Legislation as a Whole, Generally
State v. Richard A. Weidman, 2007 WI App 258, PFR 12/21/07
Pro se
Issue/Holding: Wisconsin statutes are official law in the great state of Wisconsin: a statute need not contain all constituent parts of an act, including its enabling clause.
Goofy enough argument for you? Well, you're probably thinking something like: it's a pro se appeal, no wonder. Maybe so; but then how do you explain, U.S. v. Collins, 7th Cir No. 05-4708, 12/14/07:
Concerning Collins’s appeal, we can be brief. Apart from a perfunctory and indeed frivolous attack on the sufficiency of the evidence, Collins’s lawyer, M. Engin Derkunt of the Texas Bar, devotes his entire brief to arguing that Title 18—the federal criminal code—is unconstitutional because of supposed irregularities in its enactment. We recently described an appeal in which Derkunt made the same argument on behalf of another client as “unbelievably frivolous.” United States v. States, No. 06-2345, 2007 WL 2768906 (7th Cir. Sept. 24, 2007) (per curiam). We affirm the judgment against his current client, without prejudice to the client’s seeking post-conviction relief on the ground of ineffective assistance of counsel, and we order Derkunt to show cause why he should not be sanctioned for professional misconduct in this court. We are also sending a copy of this opinion to the Texas bar disciplinary authorities. His quixotic crusade—“Title 18: The U.S. Criminal Code—Void ab initio,” www.nocriminalcode.us (visited Nov. 7, 2007)—is a profound disservice to his clients.
Constitutionality -- Scienter -- § 948.11 (1997-98), Exposure to Harmful Materials via Internet
State v. Lane R. Weidner, 2000 WI 52, 235 Wis. 2d 306, 611 N.W.2d 684, on certification
For Weidner: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether § 948.11(2) (1997-98) is constitutional.
Holding:
¶35 The legislature may permissibly dispense with scienter for various strict liability offenses. Morissette, 342 U.S. at 253-54. Nevertheless, the State is limited in its use of strict liability offenses when freedom of expression is implicated and the elimination of scienter substantially restricts that expression....

¶36 By requiring an internet user like Weidner to prove lack of knowledge regarding the age of the person exposed to material deemed harmful to a child, the statute effectively chills protected internet communication to adults....

¶37 Following Zarnke, we conclude that because the State does not bear the burden to prove scienter under Wis. Stat. § 948.11(2), the statute is unconstitutional in the context of the internet and other situations that do not involve face-toface contact....

¶43 In sum, we determine that Wis. Stat. § 948.11(2) is unconstitutional in the context of the internet and other situations that do not involve face-to-face contact. Because the statute does not require the State to prove a defendant's knowledge of the victim's age when disseminating materials deemed harmful to children, Wis. Stat. § 948.11(2) has an impermissible chilling effect on protected speech and is therefore constitutionally invalid.

Constitutionality -- Unconstitutional Statute, Salvaged by Judicial Construction
State v. Lane R. Weidner, 2000 WI 52, 235 Wis. 2d 306, 611 N.W.2d 684, on certification
For Weidner: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding: Where the statute at issue has been deemed to violate the first amendment by criminalizing potentially protected activity without requiring scienter, salvaging the legislation by judicially construing it to require scienter "would defy the legislative intent and usurp the role of the legislature," ¶39. (U.S. v. X-Citement Video, 513 U.S. 64 (1994) distinguished because of "no express congressional intent to the contrary" in that instance, while "here we have discerned clear legislative intent against supplementing Wis. Stat. § 948.11(2) with the element of scienter," ¶41.)
Like effect, see State v. Zarnke, 224 Wis. 2d 116, ¶¶26-48, 589 N.W.2d 370 (1999).
The court's authority to undertake a "severability analysis" of the offending portion of a statute isn't to be doubted. As suggested by the summary above, such a salvage operation requires "looking to legislative intent"; that is, "determin(ing) what '[the legislature] would have intended' in light of the Court's constitutional holding," U.S. v. Booker, US SC No. 4-104, 1/12/05.
Go To Brief
Constitutionality - delegation of revocation authority to executive branch.
State v. Robert V. Horn, 226 Wis.2d 637, 594 N.W.2d 772 (1999), on certification.
For Horn: Martha A. Askins, SPD, Madison Appellate.
Holding: "The issue presented by this case is whether it is within the exclusive power of the judiciary to determine whether a defendant has violated the court-imposed conditions of probation and whether probation should be revoked and the defendant sent to prison. We conclude that disposition of a criminal case, including imposing and revoking probation, is within powers shared among the branches of government. Because the legislative delegation of probation revocation to the executive branch does not unduly burden or substantially interfere with the judiciary's constitutional function to impose criminal penalties, we determine that § 973.10(2) is constitutional. Accordingly, we reverse the order of the circuit court."
Go To Brief
Vagueness Challenge – Sufficiency of Notice of Proscribed Conduct in § 942.09 (“Reasonable Expectation of Privacy”)
State v. Mark E. Nelson, 2006 WI App 124, PFR filed 6/22/06
For Nelson: Robert R. Henak; Amelia L. Bizzaro
Issue: Whether the phrase “reasonable expectation of privacy” in § 942.09 is unconstitutionally vague, where the conduct involved videotaping women in a second-floor bathroom in their own house. Holding:
¶39      However, this court and the supreme court have already concluded in several different contexts that the term “reasonable” does not render a statute unconstitutionally vague. …

¶44      Following the reasoning of these cases, we conclude that use of “reasonable” to describe “expectation of privacy” in the context of Wis. Stat. § 942.09 provides sufficient notice of the conduct proscribed by the statute. Use of the word “reasonable” in § 942.09 requires that a person refrain from videotaping a person who is nude, as specifically defined in Wis. Stat. § 948.11(1)(d), without the person’s knowledge and consent, when that person is nude in circumstances in which the person has an expectation of privacy that is reasonable under the circumstances. The use of the word “reasonable” means that Nelson is not at the mercy of people who are nude in situations that a reasonable person would not expect to be private; rather, Nelson can determine, based on the circumstances he himself was aware of and able to observe, whether a reasonable person would have an expectation of privacy in the circumstances in which he videotaped the women nude, without their knowledge and consent, in their bathroom.

¶45      We recognize that in Wis. Stat. § 942.09(2)(a), the word “reasonable” does not modify terms describing the conduct of the defendant, but instead modifies the victim’s expectation of privacy. However, as the court in Baumann explained, reasonableness as applied to the person who is disturbed by the defendant’s conduct—in this sense, the victim—is in essence the same as applying the reasonableness standard to the defendant’s conduct ….

The court notes that “what is reasonable in the circumstances of a particular case is the type of common-sense determination that juries routinely make,” ¶47 and id., n. 9 (string-citing various examples). It ought not be forgotten that this principle applies defensively as well as offensively: self-defense, for example – see, e.g., State v. Jones, 147 Wis.2d 806, 816, 434 N.W.2d 380 (1989) (“This court has recognized that the determination of reasonableness is ‘peculiarly within the province of the jury,’” quoting State v. Mendoza, 80 Wis.2d 122, 156, 258 N.W.2d 260 (1977)). Further, Nelson’s challenge is limited to “only the facts in this case,” ¶45 n. 8—and taping into someone’s bathroom probably doesn’t present a sympathetic claim for lack of notice that your invading their privacy.
Constitutionality -- Vagueness Challenge, General
State v. Mark E. Nelson, 2006 WI App 124, PFR filed 6/22/06
For Nelson: Robert R. Henak; Amelia L. Bizzaro
Issue/Holding:
¶35      “The constitutional foundation of the vagueness challenge to a penal statute is the procedural due process requirement of fair notice.” State v. Ehlenfeldt, 94 Wis. 2d 347, 355, 288 N.W.2d 786 (1980) (citation omitted). “A criminal statute is unconstitutionally vague if it either fails to afford proper notice of the conduct it seeks to proscribe or fails to provide an objective standard for enforcement.” State v. Hahn, 221 Wis. 2d 670, 677, 586 N.W.2d 5 (Ct. App. 1998) (citation omitted). The constitutionality of a statute is a question of law, which we review de novo. State v. Pittman, 174 Wis. 2d 255, 276, 496 N.W.2d 74 (1993). In our analysis we presume the statute is constitutional and the challenger has the burden of demonstrating that it is not. Id.

¶36      Under the first element of the test, a criminal statute does not provide fair notice if it does not “sufficiently warn people who wish to obey the law that their conduct comes near the proscribed area.” Hahn, 221 Wis. 2d at 677 (citation omitted). However, the challenged statute “‘need not define with absolute clarity and precision what is and what is not unlawful conduct.’” Pittman, 174 Wis. 2d at 276-77 (citation omitted). …

¶37      Under the second element of the test, “a statute is vague only if a trier of fact must apply its own standards of culpability rather than those set out in the statute.” Hahn, 221 Wis. 2d at 677 (citation omitted).

Constitutionality -- Vagueness Challenge, General
State v. Lester E. Hahn, 221 Wis. 2d 670, 586 N.W.2d 5 (Ct. App. 1998)
For Hahn: Bruce Elbert
Issue/Holding:
The party challenging the constitutionally of a statute has the burden of overcoming the presumption of constitutionality beyond a reasonable doubt. Wis. Bingo Supply & Equip. Co. v. Wis. Bingo Control Bd., 88 Wis.2d 293, 301, 276 N.W.2d 716, 719 (1979). The court is to indulge in every presumption to sustain the statute. Id. A criminal statute is unconstitutionally vague if it either fails to afford proper notice of the conduct it seeks to proscribe, or fails to provide an objective standard for enforcement. State v. Smith, 215 Wis.2d 84, 91, 572 N.W.2d 496, 498 (Ct. App. 1997). In order to give proper notice, a criminal statute must sufficiently warn people who wish to obey the law that their conduct comes near the proscribed area. Id. The statute must not be so obscure that persons of ordinary intelligence must necessarily guess as to its meaning and differ as to its application. Kay Distrib., 110 Wis.2d at 34, 327 N.W.2d at 192. A statute, however, is not void for vagueness because in some instances certain conduct may create a question about its impact under the statute. Smith, 215 Wis.2d at 91-92, 572 N.W.2d at 498. With respect to the enforcement element of the test, a statute is vague only if a trier of fact must apply its own standards of culpability rather than those set out in the statute. Id.
§ 990.04 -- Criminal Liability under Repealed Statute
State v. Ronnie L. Thums, 2006 WI App 173
For Thums: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding:
¶10      Wisconsin Stat. ch. 990 contains rules for statutory construction. … By its terms, § 990.04 only preserves liability for “offenses committed” and “penalties … incurred” prior to the repeal. (Emphases added.) We deem significant the drafters’ use of the past tense. In our view, the statute provides that although the State need not have commenced a prosecution at the time of the repeal, see also Truesdale v. State, 60 Wis. 2d 481, 483, 489, 210 N.W.2d 726 (1973) (repeal occurred after offense and prior to arraignment), it is necessary that by the time of the repeal, the offender has committed the offense and thereby become subject to the penalty for the offense. A defendant has not committed an offense unless all the elements of that crime have been met. Cf. State v. Tomlinson, 2002 WI 91, ¶55, 254 Wis. 2d 502, 648 N.W.2d 367 (proof of all elements of the crime a prerequisite to conviction). Thus, he or she incurs no penalties until that time.
Construction – History as Relevant to Plain Meaning
State v. William Allen Wisth, 2009 WI App 53, PFR filed 4/29/09
For Wisth: Jeremy Perri, SPD, MilwaukeeAppellate
Issue/Holding: A statute’s history, as embodied by prior versions and legislative amendments, is relevant to “plain meaning” of statutory text, ¶10.
Construction - General: Statutory History, Use of Relative to “Plain Meaning” Analysis
County of Dane v. LIRC, 2009 WI 9
Issue/Holding:
¶27      "A review of statutory history is part of a plain meaning analysis" because it is part of the context in which we interpret statutory terms. Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶22, 309 Wis.  2d 541, 749 N.W.2d 581; see also Kalal, 271 Wis.  2d 633, ¶52 n.9 (citing Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 430 (1989)). The materials reviewed when considering statutory history consist of "the previously enacted and repealed provisions of a statute."  Richards, 309 Wis.  2d 541, ¶22. "By analyzing the changes the legislature has made over the course of several years, we may be assisted in arriving at the meaning of a statute."  Id.
Interesting because, as the concurrence points out (¶47), statutory history is an extrinsic resource; the statute is either plain on its face or it isn’t. E.g., Kalal, ¶48: “scope, context, and purpose are perfectly relevant to a plain-meaning interpretation of an unambiguous statute as long as the scope, context, and purpose are ascertainable from the text and structure of the statute itself, rather than extrinsic sources, such as legislative history.” Or, statutory history was extrinsic, not any more. The court had previously held that “when a statute's plain meaning unambiguously evinces the legislative intent, we may consult legislative history to support our reading of the plain meaning of the statute,” WCCD v. DNR, 2004 WI 40, ¶8. Clearly, then, the court has now given a still more prominent role to statutory history.
Construction -- General
Village of Cross Plains v. Kristin J. Haanstad, 2006 WI 16, reversing unpublished decision
For Haanstad: John M. Gerlach
Issue/Holding:
¶9 Whether Haanstad was operating a motor vehicle while under the influence of an intoxicant under Wis. Stat. § 346.63(1)(a), or with a prohibited alcohol concentration under Wis. Stat. § 346.63(1)(b), involves an application of these statutes to undisputed facts. Statutory interpretation is a question of law reviewed de novo. State v. Stenklyft, 2005 WI 71, ¶7, 281 Wis. 2d 484, 697 N.W.2d 769. The purpose of statutory interpretation is to give the statute its "full, proper, and intended effect." State ex. rel Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. We begin with the statute's language because it is assumed that the legislature's intent is expressed in the words it used. Id., ¶45. When statutory language includes "technical or specially-defined words or phrases [they] are given their technical or special definitional meaning." Id. (citation omitted). If the meaning of the statute is plain, the court ordinarily stops its inquiry. Id. (citation omitted). "The presence of different 'plain meaning' interpretations by lawyers or judges does not authorize the court to skip this process, assume ambiguity, and begin searching for extrinsic sources of legislative intent." Bruno v. Milwaukee County, 2003 WI 28, ¶21, 260 Wis. 2d 633, 660 N.W.2d 656. Instead, the court examines the language of the statute or ordinance "to determine whether 'well-informed persons' should have become confused." Id. (emphasis in original, citation and quotations omitted).
Construction -- General
State v. Ryan E. Baker, 2005 WI App 45, PFR filed 3/17/05
For Baker: William E. Schmaal, SPD, Madison Appellate
Issue/Holding:
¶5. We review a statute to ascertain its meaning, so that the statute 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. "Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute." Id. When interpreting a statute, we "begin[] with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659. If the statutory intent is set forth clearly and unambiguously in the statutory language, we apply that intent to the case at hand and do not search for meaning outside the text of the statute. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997). We may resort to extra-textual sources only when the statutory language is ambiguous, i.e., it "reasonably gives rise to different meanings." Bruno v. Milwaukee County, 2003 WI 28, ¶21, 260 Wis. 2d 633, 660 N.W.2d 656.
Construction -- General
State v. Christopher Swiams, 2004 WI App 217
For Swiams: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶5 This appeal requires us to apply several interrelated statutes to facts that are not in dispute. Thus, our review is de novo. See State v. Wilson, 170 Wis. 2d 720, 722, 490 N.W.2d 48, 50 (Ct. App. 1992), denial of habeas corpus aff’d, Wilson v. McCaughtry, 994 F.2d 1228 (7th Cir. 1993). Application of statutes requires that we “faithfully give effect to the laws enacted by the legislature.” State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶44, 271 Wis. 2d 633, 662, 681 N.W.2d 110, 123-124 (“It is the enacted law, not the unenacted intent, that is binding on the public.”). In doing so, “[w]e assume that the legislature’s intent is expressed in the statutory language.” Id., 2004 WI 58, ¶44, 271 Wis. 2d at 662, 681 N.W.2d at 124. If that language is clear, we apply it as it reads because the words used by the legislature are the best evidence of its intent. Id., 2004 WI 58, ¶45, 271 Wis. 2d at 663, 681 N.W.2d at 124. Further, we may use context to derive the meaning of words that, when viewed in isolation, appear unclear. Ibid. External sources of legislative intent, that is matters not appearing in statutes themselves, id., 2004 WI 58, ¶50, 271 Wis. 2d at 666, 681 N.W.2d at 125, can help to discern legislative intent when the statutory language is not clear on its face, id., 2004 WI 58, ¶¶50-51, 271 Wis. 2d at 666-667, 681 N.W.2d at 125-126. External sources may also help “confirm or verify a plain-meaning interpretation.” Id., 2004 WI 58, ¶51, 271,Wis. 2d at 666-667, 681 N.W.2d at 126. We examine the statutes against this background.
Construction -- General
State v. Franciollo L. Jones, 2004 WI App 212, PFR filed 11/11/04
For Jones: Syovata Edari; Ellen Henak (on PFR), SPD, Milwaukee Appellate
Issue/Holding:
¶4 Statutory interpretation is a question of law, and “[t]he purpose of statutory interpretation is to give effect to the plain meaning of the words in the statute.” State v. Lombard, 2004 WI 95, ¶18, ___ Wis. 2d ___, 684 N.W.2d 103. “Extrinsic sources are not consulted unless the language of a statute is determined to be ambiguous.” Id., 19. However, “scope, context, and purpose are perfectly relevant to a plain-meaning interpretation of an unambiguous statute as long as the scope, context, and purpose are ascertainable from the text and structure of the statute itself, rather than extrinsic sources, such as legislative history.” State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶48, 271 Wis. 2d 633, 681 N.W.2d 110.
Construction -- General
Donaldson v. Brd. Of Comm’rs, 2004 WI 67
Issue/Holding:
¶19 This case requires us to interpret and harmonize the provisions of Chapter 33. Statutory interpretation is a question of law that we review de novo. Tri-Tech Corp. v. Americomp Serv., 2002 WI 88, 19, 254 Wis. 2d 418, 646 N.W.2d 822. The purpose of statutory interpretation is to determine what a statute means so that it may be given the full, proper, and intended effect. State ex rel. Kalal v. Circuit Court, 2004 WI 58, 44, ___ Wis. 2d ___, ___ N.W.2d ___. We look first to the language of the statute. N.E.M. v. Strigel, 208 Wis. 2d 1, 7, 559 N.W.2d 256 (1997). If the language is ambiguous, even after examining such intrinsic factors as scope and purpose, we may consult extrinsic sources, such as legislative history, in an effort to divine legislative intent. Kalal, ___ Wis. 2d ___, 42. Differing interpretations of a statute do not necessarily create ambiguity, but equally sensible interpretations of a word or phrase indicate a statute's ability to support more than one meaning. State ex rel. Angela M.W. v. Kruzicki, 209 Wis. 2d 112, 122, 561 N.W.2d 729 (1997). "In construing statutes that are seemingly in conflict, it is our duty to attempt to harmonize them, if it is possible, in a way which will give each full force and effect." City of Milwaukee v. Kilgore, 193 Wis. 2d 168, 184, 532 N.W.2d 690 (1995).
Construction -- General
State ex rel Ralph A. Kalal v. Circuit Court for Dane County, 2004 WI 58
For Kalal: Waring R. Fincke
Issue/Holding:
¶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. …

¶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.

¶45 Thus, we have repeatedly held that statutory interpretation "begins with the language of the statute….

¶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….

¶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…. 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." … 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, context, and purpose are ascertainable from the text and structure of the statute itself, rather than extrinsic sources, such as legislative history.

¶49 … 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.

¶50 What is clear, however, is that Wisconsin courts ordinarily do not consult extrinsic sources of statutory interpretation unless the language of the statute is ambiguous. By "extrinsic sources" we mean interpretive resources outside the statutory text——typically items of legislative history. Sutherland, § 45:14 at 109.

¶51 … 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 consulted to confirm or verify a plain-meaning interpretation. Seider, 236 Wis. 2d 211, ¶¶51-52.

Emphasis supplied. Footnote 8 is omitted: it “reiterate(s) the rule that extrinsic sources of interpretation are generally not consulted unless there is a need to resolve an ambiguity in the statutory language.” Also, the Chief Justice’s concurrence (¶¶59-73, contains a useful list and description of various sources of legislative intent.
Construction -- General
WCCD v. DNR, 2004 WI 40, affirming 2003 WI App 76, 263 Wis. 2d 370, 661 N.W.2d 858

Issue/Holding:

¶6. The nature and scope of an agency's powers are issues of statutory interpretation. GTE North Inc. v. PSC, 176 Wis. 2d 559, 564, 500 N.W.2d 284 (1993). When interpreting a statute, our goal is to discern the intent of the legislature, which we derive primarily by looking at the plain meaning of the statute. Kitten v. DWD, 2002 WI 54, 252 Wis. 2d 561, ¶33, 644 N.W.2d 649. See also, Columbus Park Hous. Corp. v. City of Kenosha, 2003 WI 143, ¶10, 267 Wis. 2d 59, 671 N.W.2d 633. The language of a statute is read in the context in which it appears in relation to the entire statute so as to avoid an absurd result. Landis v. Physicians Ins. Co. of Wis., 2001 WI 86, ¶16, 245 Wis. 2d 1, 628 N.W.2d 893. Words and phrases are generally accorded their common everyday meaning, while technical terms or legal terms of art are given their accepted legal or technical definitions. Wis. Stat. § 990.01(1). Words that are defined in the statute are given the definition that the legislature has provided. Beard v. Lee Enters., 225 Wis. 2d 1, 23, 591 N.W.2d 156 (1999). "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 v. Milwaukee, 2003 WI 28, ¶20, 260 Wis. 2d 633, 660 N.W.2d 656. Thus, if the statute is unambiguous, we do not consult extrinsic sources such as legislative history to ascertain its meaning; we simply apply its plain meaning. Lincoln Sav. Bank v. DOR, 215 Wis. 2d 430, 441, 573 N.W.2d 522 (1998). See also, UFE Inc. v. LIRC, 201 Wis. 2d 274, 281-82, 548 N.W.2d 57 (1996).

¶7. A statute is not ambiguous merely because the parties disagree as to its meaning, or because the circuit court and court of appeals reached different conclusions; rather, a statute is ambiguous when it is readily susceptible to two or more meanings by reasonably well-informed individuals. Lincoln Sav. Bank, 215 Wis. 2d at 441-42. The test for ambiguity therefore 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 (citation omitted) (emphasis in original). Only if the statute is ambiguous must we turn to extrinsic sources such as legislative history to aid our interpretation. Seider v. O'Connell, 2000 WI 76, ¶¶50-52, 236 Wis. 2d 211, 612 N.W.2d 659.

¶8. Thus, "[t]he well established tenets of the plain meaning rule preclude courts from resorting to legislative history to uncover ambiguities in a statute otherwise clear on its face." State ex rel. Cramer v. Schwarz, 2000 WI 86, ¶37, 236 Wis. 2d 473, 613 N.W.2d 591. Indeed, "[t]he plain meaning of a statute takes precedence over all extrinsic sources and rules of construction, including agency interpretations." UFE, 201 Wis. 2d at 282 n.2. However, when a statute's plain meaning unambiguously evinces the legislative intent, we may consult legislative history to support our reading of the plain meaning of the statute. Columbus Park Hous. Corp., 267 Wis. 2d 59, ¶36. See also Seider, 236 Wis. 2d 211, ¶52.

(Emphasis supplied. Why such a lengthy quote on what appears to be settled principles? Recall the court of appeals’ very recent observation that “the supreme court [has] moved directly to an analysis of the legislative intent by looking to resources traditionally reserved for ambiguous statutes.” Courtney F. v. Ramiro M.C., 2004 WI App 36, ¶14. This case, however, explicitly rejects that idea, without so much as citing the case. What, then, is the applicable principle? On the one hand, the court of appeals is bound by its own precedent, State v. Andre Bolden, 2003 WI App 155, ¶¶9-10, but that isn’t the leading idea in this context, because the court of appeals is trying to construe the supreme court’s marching orders: “It is a long-standing rule that where supreme court decisions appear to be inconsistent, or in conflict, we follow the court's most recent pronouncement.” Kramer v. Board of Educ., 2001 WI App 244, ¶20, 248 Wis.2d 333, 344, 635 N.W.2d 857. This would give Courtney F., which was published 3/24, a shelf life of exactly 13 days.)

 
Construction -- General
State v. Gregory J. Franklin, 2004 WI 38, affirming unpublished decision of court of appeals
For Franklin: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding:
¶9. Given the positions of the parties, this case requires us to interpret the use of Wis. Stat. § 904.04(2) in the context of a ch. 980 proceeding. As is usual in cases of statutory construction, we begin with the language of the statute itself. The purpose of statutory interpretation is to ascertain and give effect to the legislature's intent. Angela M.W., 209 Wis. 2d at 121; Ball v. District No. 4, Area Bd. of Vocational, Technical & Adult Educ., 117 Wis. 2d 529, 537-38, 345 N.W.2d 389 (1984). Unless technical terms are involved, the statutory language is given its plain and ordinary meaning. Angela M.W., 209 Wis. 2d at 121; Bruno v. Milwaukee County, 2003 WI 28, ¶20, 260 Wis. 2d 633, 660 N.W.2d 656. If that meaning is clear on its face, we need go no further, and simply will apply it. Bruno, 260 Wis. 2d 633, ¶20; Ball, 117 Wis. 2d at 537-38. However, if the language is ambiguous, we may examine extrinsic sources for evidence of legislative intent. Angela M.W., 209 Wis. 2d at 121. Here, although neither party contends that the statute is ambiguous in the usual sense of disputing what it means, they do disagree about whether it is applicable in a ch. 980 proceeding for the evidence received here.
For authority to the effect that “the supreme court [has] moved directly to an analysis of the legislative intent by looking to resources traditionally reserved for ambiguous statutes.” Courtney F. v. Ramiro M.C., 2004 WI App 36, ¶14.
Construction -- General
State v. William L. Morford, 2004 WI 5, on review of unpublished decision
For Morford: Lynn E. Hackbarth
Issue/Holding:
¶21 Our goal in interpreting statutes is to discern and give effect to the intent of the legislature. Statutory interpretation begins with the language of the statute. Each word should be looked at so as not to render any portion of the statute superfluous. But "courts must not look at a single, isolated sentence or portion of a sentence" instead of the relevant language of the entire statute. Furthermore, a statutory provision must be read in the context of the whole statute to avoid an unreasonable or absurd interpretation. Statutes relating to the same subject matter should be read together and harmonized when possible. A cardinal rule in interpreting statutes is to favor an interpretation that will fulfill the purpose of a statute over an interpretation that defeats the manifest objective of an act. Thus a court must ascertain the legislative intent from the language of the statute in relation to its context, history, scope, and objective, including the consequences of alternative interpretations.
Construction - Administrative Agency’s Interpretation of Governing Statute
County of Dane v. LIRC, 2009 WI 9
Issue/Holding: Three levels of deference are given an administrative agency’s interpretation and application of a statute: great deference; due weight deference; and no deference (though “there is little difference between due weight deference and no deference”), ¶¶17-19. Where the agency has applied the statute inconsistently to similar fact-patterns, no deference is given the agency’s construction of the statute, ¶20.
Construction – Administrative Agency’s Interpretation of Governing Statute
State ex rel.. Kevin Thomas v. Schwarz, 2007 WI 57, affirming unpublished decision
For Thomas: Michael D. Kaiser
Issue/Holding: No deference is owed an administrative agency’s construction on an issue of first impression, ¶¶25-29. (Standards of review of agency construction of statute generally summarized.)
Construction – Administrative Agency’s Interpretation of Governing Statute
DOC v. Schwartz and James Dowell, 2005 WI 34, reversing (other grds), 2004 WI App 136
For Dowell: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding:
¶15 ... To review an agency's statutory interpretation, this court generally applies one of three standards of review, with varying degrees of deference. 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 .... Because both parties agree that this case presents a question of first impression, we conclude that de novo review is applicable to the case before us.
Construction -- Caption of Statute, and Caption of Act
State v. Joseph L. Smet, 2005 WI App 263
For Smet: Christopher A. Mutschler
Issue/Holding:
¶14      … A section caption is not part of the statute, State v. Lindsey A.F., 2003 WI 63, ¶14, 262 Wis. 2d 200, 663 N.W.2d 757; Wis. Stat. § 990.001(6), because the caption is not prepared by the legislature, but by the revisor of statutes for the purpose of indexing. See Hoeft v. Milwaukee & Suburban Transp. Corp., 42 Wis.  2d 699, 708, 168 N.W.2d 134 (1969). No weight, therefore, should be given to it. Id. Rather, it is the caption of the act which is probative of legislative intent. Id. at 707-08….
Construction – Legislative Reference Bureau Analysis as Indicative of Legislative Intent
State v. Stephen A. Freer, 2010 WI App 9, PFR filed 12/30/09
For Freer: Suzanne L. Hagopian, SPD, Madison Appellate
Issue/Holding: “The LRB’s analysis of a bill is printed with and displayed on the bill when it is introduced in the legislature; as such, it is indicative of legislative intent. See Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶32, 295 Wis.  2d 1, 719 N.W.2d 408,” ¶22.
Construction -- Extrinsic Sources, Use of
State v. Waushara Co. Board of Adjustment, 2004 WI 56
Issue/Holding:
¶15 When interpreting a statute, we first look to the plain meaning of its terms. Id. If the statute is unambiguous, we will not look beyond the statutory language to discern the statute’s meaning. Id. Only when a statute is ambiguous will we examine aids such as legislative history, scope, context, and subject matter. State v. Delaney, 2003 WI 9, 14, 259 Wis. 2d 77, 658 N.W.2d 416. "A statute is ambiguous if reasonable persons could disagree as to its meaning." Id.
Construction -- Extrinsic Sources

State v. Ellis H., 2004 WI App 123

For Ellis H.: Brian Findley, SPD, Madison Appellate
Issue/Holding:

¶6 The outcome of this appeal turns on our construction of WIS. STAT. § 938.355(6)(d). Statutory interpretation is considered de novo. State v. Aaron D., 214 Wis. 2d 56, 60, 571 N.W.2d 399 (Ct. App. 1997). That much is clear. But how appellate courts go about interpreting statutes is not so clear. It used to be that we looked first to the language of the statute. If the language was unambiguous on its face, we were not to resort to legislative history but rather we were to interpret the statute according to its unambiguous language. Courtney F. v. Ramiro M.C., 2004 WI App 36, ¶13, __ Wis. 2d __, 676 N.W.2d 545. Only if the statute was ambiguous were we to turn to the legislative history in an attempt to resolve the ambiguity. Id. Recently, however, a divided supreme court has appeared in at least a few cases to reason that because our responsibility is to discover and give effect to the intent of the legislature, we should consider the legislative history in concert with the language of the statute. See id., ¶14; see also Hubbard v. Messer, 2003 WI 145, ¶9, 267 Wis. 2d 92, 673 N.W.2d 676; Village of Lannon v. Wood-Land Contractors, Inc., 2003 WI 150, ¶13, 267 Wis. 2d 158, 672 N.W.2d 275. …

(We keep going around on this because the court of appeals keeps insisting that the supreme court has “appeared” to change the ground rules. Maybe the supreme court should change the rules, probably it should, but the court is now about as clear as it can that it’s not presently minded to. See, e.g., State ex rel Ralph A. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶43-53 (court indicates commitment to “plain wording = no extrinsic sources” rule). But it remains true that even where the statute isn’t ambiguous, the court can and will examine extrinsic resources to confirm its construction. State v. Ervin Burris, 2004 WI 91, ¶32 (“we turn to the history of similar legislation to confirm our interpretation of the statutory language”).

Construction -- Extrinsic Sources, Use of
Courtney F. v. Ramiro M.C., 2004 WI App 36
For Ramiro: M.C.: Christine L. Hansen, SPD, Waukesha Trial
Issue/Holding:
¶13. When we construe a statute, our aim is to ascertain the intent of the legislature. State v. Richard G. B., 2003 WI App 13, ¶8, 259 Wis. 2d 730, 656 N.W.2d 469. Conventional statutory construction rules would have us first assess whether the language of the statute is clear and unambiguous. Id. If so, our inquiry ends and we simply apply the language to the facts of the case. Id. If not, we determine legislative intent from the words of the statute in relation to its context, subject matter, scope, history, and the object the legislature intended to accomplish. Id.

¶14. However, recent decisions from our supreme court involving statutory construction have not employed this threshold inquiry as to whether the statute is ambiguous or unambiguous. See Hubbard v. Messer, 2003 WI 145, ¶9, ___ Wis. 2d ___, ___ N.W.2d ___; Village of Lannon v. Wood-Land Contractors, Inc., 2003 WI 150, ¶13, ___ Wis. 2d ___, 672 N.W.2d 275. Instead, the supreme court moved directly to an analysis of the legislative intent by looking to resources traditionally reserved for ambiguous statutes. "When interpreting a statute, our purpose is to discern legislative intent. To this end, we look first to the language of the statute as the best indication of legislative intent. Additionally, we may examine the statute's context and history." Village of Lannon, 2003 WI 150 at ¶13 (citations omitted). We will employ this new approach in this case.8


8 We do so acknowledging that, in a given case, this new approach could produce a statutory interpretation result contrary to the plain language of the statute. Such, however, is not the result in this case.
Construction -- Deference to Agency Interpretation
Brown v. LIRC, 2003 WI 142
Issue/Holding:
¶12 Nevertheless, labeling an issue as a question of law does not mean that a court may disregard an agency's determination. As the court of appeals correctly stated, an important principle of administrative law is that, in recognition of the expertise and experience of an agency, a court will in certain circumstances defer to the agency's interpretation and application of a statute. Whether a court independently interprets a statute or independently applies the law to the facts or defers in some way to an agency's conclusions of law depends on the particular agency action being reviewed.

¶13 Over time, we have developed a three-level approach to an agency's conclusions of law: a court gives an agency's conclusion of law no deference (the court makes a de novo determination of the question of law); a court gives an agency's conclusion of law due weight deference; or a court gives an agency's conclusion of law great weight deference. The appropriate level of scrutiny a court should use in reviewing an agency's decision on questions of law depends on the comparative institutional capabilities and qualifications of the court and the agency to make a legal determination on a particular issue.

¶14 No deference is due an agency's conclusion of law when an issue before the agency is one of first impression or when an agency's position on an issue provides no real guidance....

¶15 Due weight deference is appropriate when an agency has some experience in the area but has not developed the expertise that necessarily places it in a better position than a court to interpret and apply a statute....

¶16 Great weight deference is appropriate when: (1) an agency is charged with administration of the particular statute at issue; (2) its interpretation is one of long standing; (3) it employed its expertise or specialized knowledge in arriving at its interpretation; and (4) its interpretation will provide uniformity and consistency in the application of the statute....

Construction -- Administrative Code – Deference to Agency Interpretation
Robert Plevin v. DOT, 2003 WI App 211
For Plevin: Steven Tilton
Issue/Holding: Three levels of deference may be applied to the statutory interpretations of administrative agencies: great weight, due weight, and no weight. ¶12. But as to interpretation of its own administrative rule, the agency’s construction is entitled to “controlling weight,” unless inconsistent with the regulation’s language, or is clearly erroneous. ¶¶13-14.
Construction -- Administrative Code Provision
State ex rel. Peter D. Griffin v. Smith / State ex rel. Micah E. Glenn v. Litscher, 2004 WI 36, on certification
For Griffin and Glenn: Nathaniel Cade, Jr., State Bar Pro Bono Project 
Issue/Holding:
¶19. When interpreting an administrative regulation, we generally use the same rule of interpretation as applicable to statutes. State v. Busch, 217 Wis. 2d 429, 441, 576 N.W.2d 905 (1998). Our goal in statutory or administrative rule interpretation is to discern the intent of the legislature or the rule maker. See State ex rel. Staples v. Young, 142 Wis. 2d 348, 353, 418 N.W.2d 333 (Ct. App. 1987). Our duty to fulfill this intent requires that we uphold the separation of powers by not substituting judicial policy views for the views of the legislature or rule making authority. State ex rel. Cramer v. Schwarz, 2000 WI 86, ¶18, 236 Wis. 2d 473, 613 N.W.2d 591.
Construction -- AG Opinion
State v. Rick L. Edwards, 2003 WI App 221, PFR filed 10/24/03
For Edwards: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding: “While a decision of an attorney general is not binding, such decisions may be persuasive as to the meaning and purposes of statutes. State v. Longcore, 2001 WI App 15, ¶9 n.5, 240 Wis. 2d 429, 623 N.W.2d 201.” ¶10.
(For whatever it’s worth, the cited authority (fn. 5) contains subtly different language: AG opinions “are persuasive authority as to the meaning and purposes of statutes. See State v. Wachsmuth, 73 Wis. 2d 318, 323, 243 N.W.2d 410 (1976)” (emphasis supplied). And Wachsmuth in turn says that AG opinions, though not binding, “are persuasive if well reasoned and founded upon appropriate legal principles.” But wouldn’t that be true of any argument or position irrespective of source? In all likelihood, an AG opinion is worth about as much the court chooses in any given case.)
Construction – Lack of Ambiguity for One Purpose Doesn’t Preclude Ambiguity for Another
State v. Angela A. Keyes / Matthew E. Keyes, 2007 WI App 163, PFR granted 10/10/07
For both Keyes: Michael J. Devanie
Issue/Holding: ¶16, n. 7:

We note that, although we conclude Wis. Stat. § 779.02(5) is ambiguous in the context of the facts of this case, in prior decisions the statute has been determined to be unambiguous. See Capital City Sheet Metal, Inc. v. Voytovich, 217 Wis. 2d 683, 689, 578 N.W.2d 643 (Ct. App. 1998). Our conclusion that the statute is ambiguous under the present facts does not affect the observation that the statute is unambiguous in the context of those prior decisions. See Seider v. O’Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659. (“‘Depending on the facts of a case, the same statute may be found ambiguous in one setting and unambiguous in another.’”).

Construction -- Ambiguity Analysis – Reliance on prior Caselaw Construction of Statute
State v. Alexander Caleb Grunke / State v. Dustin Blake Radke, 2007 WI App 198, (AG’s) PFR filed 8/24/07
For Grunke: Susan L. Jones-Molini
For Radke: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: ¶8 n. 3:
We recognize that the supreme court’s statements as to the purpose of Wis. Stat. § 940.225 are not “ascertainable from the text” of the statute itself. However, because we are not free to disregard language of the supreme court, Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997), we are bound by its interpretation of the purpose of the statute. Otherwise, we would be free to conclude that the primary purpose of § 940.225 is contrary to the purpose found by the supreme court, which is impermissible under Cook. We also recognize that State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110, did not specify whether prior case law is an extrinsic source that may not be consulted absent a finding of statutory ambiguity, and that there has been some disagreement as to the scope of extrinsic sources. See Wisconsin Dep’t of Revenue v. River City Refuse Removal, Inc., 2007 WI 27, ¶81 n.1, _Wis. 2d _, 729 N.W.2d 396 (Abrahamson, C.J., dissenting) (“I wonder whether under the majority’s rubric prior case law interpreting a statute in question would also be considered an ‘extrinsic source,’ to be used only when a statute is deemed ambiguous.”). We conclude that the better approach for the court of appeals is to consider prior case law stating the purpose of a statute in interpreting its plain meaning, so as to adhere to the clear mandate in Cook.
Construction -- Ambiguity
State v. Trevor McKee, 2002 WI App 148, PFR filed 6/28/02
For McKee: Kenneth P. Casey, SPD, Jefferson Trial
Issue/Holding:
¶9.... A statute may be plain and unambiguous when applied to one set of facts but yield an ambiguity when applied to another.
¶10. We thus conclude that the language of Wis. Stat. § 939.71 is ambiguous because it does not plainly express the legislature's intent regarding its application when facts necessary for the prosecution of a given crime do not come into existence until after a defendant has been convicted of another crime for the same act. Because the statute is ambiguous, we must attempt to ascertain the legislature's intent from extrinsic sources, such as the statute's scope, history, context, subject matter, and purpose....
Construction -- Presumption of Constitutionality
State v. Phillip Cole, 2003 WI 112, on certification
For Cole: Michael Gould, SPD, Milwaukee Appellate
On-line Brief: http://www.wisspd.org/html/appellate/briefbank/briefs/010350.pdf
Issue/Holding:
¶11. Generally, legislative enactments are entitled to a presumption of constitutionality…. In the face of a strong presumption, it falls to the party challenging the constitutionality of a statute to prove that the statute is unconstitutional beyond a reasonable doubt….

¶12. Cole argues that the presumption of constitutionality is inapplicable in this case because the CCW statute predates the constitutional amendment. We disagree…. Whether a statute predates or postdates a constitutional amendment, the legislature is still the more appropriate body for those considerations, and the judiciary rightly presumes the legislature makes such an assessment.

¶13. Rare exceptions to the presumption have been found, particularly where a statute infringes upon First Amendment rights or the process of enactment is suspect. …

Construction
State v. Joel O. Peterson, 2001 WI App 220, PFR filed 9/21/01
For Peterson: William E. Schmaal
Issue/Holding: A statute deemed unambiguous in one context may be ambiguous (and subject to extrinsic analysis) in a distinguishable factual context. ¶¶21-22.
Go To Brief
Construction -- Dictionary as Aid
State v. Stephen D. Harmon, 2006 WI App 214, PFR filed 10/26/06
For Harmon: Timothy A. Provis
Issue/Holding:
¶11      Here, the parties agree that, because “accident” is not defined by statute, it must be given its ordinary meaning. Id., ¶45. The common meaning of a word may be ascertained by resort to a dictionary. See State v. Denis L.R., 2005 WI 110, ¶40, 283 Wis. 2d 358, 699 N.W.2d 154. …

¶12      Because “accident” has multiple dictionary definitions, we look at the context in which the word is used to determine which is the applicable meaning. …

¶13      … In order to determine which meaning is applicable, we consider the purpose of the statute....

Construction -- Dictionary as Aid
State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose
Issue/Holding:
¶16      As noted, the Committee’s definition of cunnilingus is drawn from Webster’s New Collegiate Dictionary. Resort to a recognized dictionary is permitted to establish the ordinary and common meaning of a word. Childs, 146 Wis.  2d at 120. While the law commonly looks to a standard dictionary for guidance in defining a word in easily understood terms, such a source cannot always be relied upon, as Harvey does, to supply or explain legal nuances. Our focus must remain on ascertaining the legal definition consistent with the legislative intent. 

¶17      A standard dictionary definition should not by default become the legal definition of a term if it unfairly or inaccurately states the law or misconveys the legislative intent. We conclude that a definition of cunnilingus that suggests the victim must be stimulated misrepresents the legislative intent to recognize sexual assault as a crime of violence and to protect victims of those crimes. Given the legal significance of the term “cunnilingus” in our sexual assault statute, we think a better resource is Black’s Law Dictionary 380 (6th ed. 1990) which more neutrally defines cunnilingus as “[a]n act of sex committed with the mouth and the female sexual organ.”[6]


 [6]   Subsequent editions of Black’s Law Dictionary do not define cunnilingus.
Isn’t this analysis backward? Aren’t you supposed to discern legislative intent from the dictionary definition (plain meaning) of the term, rather than picking the definition you want from the presumed legislative intent? And what’s with “legal significance”? Can’t you say that the definition of any element has “legal significance”? Not that the result is necessarily wrong, it’s just that the court might have been on solider analytical footing in saying simply that a statute can’t be construed in derogation of common sense, and it derogates common sense to require the victim’s “stimulation” for an assault.
Construction -- Dictionary Usage Where Term not Defined by Statute
State v. David C. Polashek, 2002 WI 74, affirming in part and reversing in part, State v. Polashek, 2001 WI App 130, 246 Wis. 2d
For Polashek: Nila Jean Robinson
Issue/Holding: Where a term isn't defined by statute, the next recourse is generally a recognized dictionary to determine the common and ordinary meaning of the word. ¶19.
Construction -- Drafter's Commentary
State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9
For Head: John D. Hyland, Marcus J. Berghan
Issue/Holding:
This court has recognized that articles by drafters of statutes, authored contemporaneously with the enactment of the statutes, may be viewed as "authoritative statement[s] of legislative intention." State v. Genova, 77 Wis. 2d 141, 151, 252 N.W.2d 380 (1977) (quoting State v. Hoyt, 21 Wis. 2d 284, 299-300, 128 N.W.2d 645 (1964)). The court has also stated that a law review article by the principal drafter of the 1956 revised criminal code, published contemporaneously with enactment of the code, was "persuasive authority when construing a particular statute." State v. Williquette, 129 Wis. 2d 239, 254, 385 N.W.2d 145 (1986).
Construction -- Extrinsic Sources -- Consult to Buttress Conclusion of Non-Ambiguous Textual Meaning
Seider v. O'Connell, 2000 WI 76
Issue/Holding:
¶50. If a statute is unambiguous on its face, this court does not look to extrinsic evidence ....

¶51. Although the canon prevents courts from tapping legislative history to show that an unambiguous statute is ambiguous, "there is no converse rule that statutory history cannot be used to reinforce and demonstrate that a statute plain on its face, when viewed historically, is indeed unambiguous." State v. Martin, 162 Wis. 2d 883, 897 n.5, 470 N.W.2d 900 (1991).

¶52. Where a statute unambiguously establishes legislative intent in its plain meaning, we apply that meaning without resorting to extrinsic sources. Kelley Co., 172 Wis. 2d at 247. On occasion, however, we consult legislative history to show how that history supports our interpretation of a statute otherwise clear on its face....

Same, Megal Development Corporation v. Shadof, 2005 WI 151.
Construction – General Term, Juxtaposed with Specific
Meriter Hospital v. Dane County, 2004 WI 145, affirming 2003 WI App 248
Issue/Holding:
¶18. When interpreting Wis. Stat. § 301.01, we cannot expand the scope of the statute, as requested by Meriter, simply because it includes the phrase "otherwise detained." "[W]here a general term . . . is preceded or followed by a series of specific terms, the general term is viewed as being limited to items of the same type or nature as those specifically enumerated." State v. Campbell, 102 Wis. 2d 243, 246, 306 N.W.2d 272 (Ct. App. 1981) (citations omitted). In § 301.01, the term prisoner is defined as a person who is either "arrested, incarcerated, imprisoned or otherwise detained . . . ." Therefore, the correct interpretation of that statute involves limiting the phrase "otherwise detained" so as to coincide with the preceding terms: arrested, incarcerated, and imprisoned. A pending apprehension request, by itself, does not result in a person being "held."
Construction -- In Pari Materia; Specific Controls General
State v. Richard G. Galvan, 2007 WI App 173, PFR filed 7/20/07
For Galvan: Paul LaZotte, SPD, Madison Appellate
Issue/Holding:

¶7    … When multiple statutes are contained in the same chapter and assist in implementing the chapter’s goals and policy, the statutes should be read in pari materia and harmonized if possible. State v. Amato, 126 Wis. 2d 212, 216, 376 N.W.2d 75 (Ct. App. 1985). If two statutes relating to the same subject matter conflict, the specific controls the general unless it appears that the legislature intended the general statute to prevail. Id. at 217. In all cases we must construe statutes so as to avoid an absurd or unreasonable result. Town of Avon v. Oliver, 2002 WI App 97, ¶7, 253 Wis. 2d 647, 644 N.W.2d 260.

Construction -- In Pari Materia
State v. Jeremiah C.; State v. Katie H., 2003 WI App 40
For Juveniles: Susan E. Alesia, SPD, Madison Appellate
Issue/Holding:
¶17. All the statutes cited above deal with the same subject matter and assist in implementing the goals and policies of the Juvenile Justice Code. No matter which version of Wis. Stat. § 938.355(4) is utilized, we must read it and Wis. Stat. §§ 118.15, 118.16 and 938.13 in pari materia. See Aaron D., 214 Wis. 2d at 66. In pari materia refers to statutes and regulations relating to the same subject matter or having a common purpose. Perra v. Menomonee Mut. Ins. Co., 2000 WI App 215, 9, 239 Wis. 2d 26, 619 N.W.2d 123. The statutory construction doctrine of in pari materia requires a court to read, apply and construe statutes relating to the same subject matter together. Id. It is our duty to construe statutes on the same subject matter in a manner that harmonizes them in order to give each full force and effect. Aaron D., 214 Wis. 2d at 66.
Construction -- Jury Instruction Committee as Aid
State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose
Issue/Holding:
¶13      The Criminal Jury Instructions Committee comprises highly qualified legal minds whose goal is to uniformly and accurately state the law. State v. Gilbert, 115 Wis. 2d 371, 379, 340 N.W.2d 511 (1983), modified on other grounds, State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536. However, the Committee’s pattern instructions are merely persuasive, not precedential, State v. Olson, 175 Wis.  2d 628, 642 n.10, 498 N.W.2d 661 (1993), and we are not duty-bound to accept the Committee’s pronouncements. State v. Beets, 124 Wis.  2d 372, 383 n.7, 369 N.W.2d 382 (1985).
Court goes on to reject committee’s view of sexual assault elemental definition of “cunnilingus.”
Construction – “Manifest Object of Act”
State ex rel. Steven M. Rupinski v. Smith, 2007 WI App 4
For Rupinski: Daniel R. Drigot
Issue/Holding:
¶19      … We may, however, not read portions of a statute
in a vacuum but must read them together in order to best determine the plain and clear meaning of the statute. The cardinal rule is that the purpose of the whole act will be sought and favored over a construction that would defeat the manifest object of the act. When two or more statutes are involved, we seek to construe them so that they are harmonious.
Antonio M.C. v. State, 182 Wis. 2d 301, 309, 513 N.W.2d 662 (Ct. App. 1994) (citations omitted).

¶29      Rupinski’s portrayal of the rules of statutory construction notwithstanding, we iterate, it is a paramount rubric of statutory construction that a part of a statute, no matter how plainly expressed, ought not be read to produce a result that defeats the objective of the statutory enactment. Even “plain meaning” must yield when faced with the threat that the intent of the law giver may be subverted.

Construction
State v. James A. Torpen, 2001 WI App 273, PFR filed 11/13/01
For Torpen: William E. Schmaal, SPD, Madison Appellate
Issue/Holding: "When multiple statutes are contained in the same chapter and assist in implementing the chapter's goals and policy, the statutes should be read together and harmonized if possible." ¶11.
Go to Brief
Construction – Rule of Lenity
State v. Stephen A. Freer, 2010 WI App 9, PFR filed 12/30/09
For Freer: Suzanne L. Hagopian, SPD, Madison Appellate
Issue/Holding:
¶2   The rule of lenity comes into play only when a court is unable to clarify the intent of the legislature, see Cole, 262 Wis.  2d 167, ¶67, and we have clarified the legislative intent of Wis. Stat. § 940.44(2) by examining its legislative history. The related rule of strict construction of penal statutes “cannot be used to circumvent the purpose of the statute,” Kittilstad, 231 Wis.  2d at 267, and application of the rule in this case would circumvent the legislative purpose of § 940.44(2).
Construction – Rule of Lenity: Unresolved Ambiguity Required
State v. Angela A. Keyes / Matthew E. Keyes, 2007 WI App 163, PFR granted 10/10/07
For both Keyes: Michael J. Devanie
Issue/Holding: ¶16, n. 7:

The concurring opinion states that the rule of lenity should be applied to resolve the ambiguity we conclude exists in Wis. Stat. § 779.02(5). See concurrence at ¶3. We observe that the Keyes do not argue that this rule applies. In any event, we conclude that the rule of lenity does not apply here. The rule of lenity is a rule of statutory construction that applies to criminal statutes only when two conditions are met: when the penal statute is ambiguous and we are unable to clarify the legislative intent by resort to legislative history. See State v. Setagord, 211 Wis. 2d 397, ¶31, 565 N.W.2d 506 (1997) (citations omitted). The second condition is not met here. As we explain, the legislative intent of § 779.02(5) is to protect owners and subcontractors from contractors who neglect to perform their fiduciary duty by failing to pay subcontractors in full or proportionally before paying themselves a profit. See Kraemer Bros. Inc. v. Pulaski State Bank, 138 Wis. 2d 395, 402-03, 406 N.W.2d 379 (1987). This legislative intent resolves the ambiguity without the need to resort to the rule of lenity.

Construction – Rule of Lenity
State v. Kevin F. McGuire, 2007 WI App 139, PFR filed 6/4/07
For McGuire: Timothy A. Provis
Issue/Holding:

¶34 The rule of lenity comes into play only after two conditions are met: the penal statute must be ambiguous, and we must be unable to clarify the intent of the legislature by resort to legislative history. State v. Setagord, 211 Wis. 2d 397, 414-15, 565 N.W.2d 506 (1997). Here we deem neither condition present. We see nothing ambiguous about the statutory scheme. …

¶35 As to legislative intent, we have observed that the legislative goal of Wisconsin’s blue sky laws is to protect investors. Klatt, 213 Wis. at 21. The rule of lenity does not require giving a statute the narrowest possible construction if doing so would run contrary to the legislature’s intent. State v. Richard Knutson, Inc., 196 Wis. 2d 86, 96-97, 537 N.W.2d 420 (Ct. App. 1995). In sum, the rule of lenity does not apply here.

Construction – Rule of Lenity
State v. Stephen D. Harmon, 2006 WI App 214, PFR filed 10/26/06
For Harmon: Timothy A. Provis
Issue/Holding: ¶16, n. 5:
Harmon also argues that, under the rule of lenity, we must interpret Wis. Stat. § 346.67(1) in favor of the accused. The rule of lenity, however, comes into play only after two conditions are met: (1) the penal statute is ambiguous; and (2) the court is unable to clarify the intent of the legislature by resort to legislative history. State v. Cole, 2003 WI 59, ¶67, 262 Wis. 2d 167, 633 N.W.2d 700. Because we have concluded there is only one reasonable meaning of “accident” in § 346.67(1), the rule of lenity is not applicable.
Strict Construction of Penal Statute
State v. Richard L. Kittilstad, 231 Wis.2d 245, 603 N.W.2d 732 (1999), affirming State v. Kittilstad, 222 Wis.2d 204, 585 N.W.2d 925 (Ct. App. 1998).
For Kittilstad: Richard L. Wachowski.
Issue: Whether the rule of strict construction of a penal statute (rule of lenity) applies to unambiguous statutes.
Holding: The rule of strict construction of penal statutes, which is similar to the federal rule of lenity, "does not apply unless a statute is ambiguous, and it cannot be used to circumvent the purpose of the statute."
Construction
State v. Victory Fireworks, Inc., 230 Wis.2d 721, 602 N.W.2d 128 (Ct. App. 1999).
Holding: "Generally, we presume that the legislature acts with full knowledge of existing statutes and how the courts have interpreted these statutes. See C.L. v. Edson, 140 Wis.2d 168, 181, 409 N.W.2d 417, 421 (Ct. App. 1987). Moreover, "[w]here the legislature has made amendments to the statutory section in question and has not corrected the court's interpretation, the presumption of adoption or ratification is strengthened." York v. National Continental Ins. Co., 158 Wis.2d 486, 497, 463 N.W.2d 364, 369 (Ct. App. 1990)...."
Construction -- LRB Drafting Manual
State v. John F. Powers, 2004 WI App 156
For Powers: Marcus J. Berghahn; John D. Hyland
Issue/Holding: ¶14 n. 8:
We do not view the LRB "Bill Drafting Manual" to be an "extrinsic source" akin to legislative history materials, which a court should not consult except in cases of ambiguity, or, perhaps, to confirm an interpretation based on the plain meaning of the language at issue. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶50, __ Wis. 2d __, 681 N.W.2d 110. Rather, the manual is a reference work that assists us in ascertaining the "common and accepted meaning" of words and phrases employed in the Wisconsin Statutes, much as would a dictionary. See id., ¶¶53-54. Put another way, the Bill Drafting Manual does not purport to assist us in determining what legislators were thinking when they enacted Wis. Stat. § 50.135(1). Rather, the manual assists us in determining the meaning of the statutory language itself by revealing the standards and definitions relied on by those who choose and arrange the words, phrases and punctuation found in the Wisconsin Statutes.
(The Manual is revised biennially. Not available on-line, the library call number is KFW/2821.5/B5/A85.)
Construction -- Legislative Response to Judicial Interpretation
Megal Development Corporation v. Shadof, 2005 WI 151
Issue/Holding:
¶24 ... As we have repeatedly stated, when a statute is repealed and recreated following a judicial interpretation, it is "presumed to be the result of conscious deliberation on the part of the legislature." Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 633, 547 N.W.2d 602 (1996) (citation omitted).
Construction -- Legislative Acquiescence in Judicial Interpretation
State v. Colleen E. Hansen, 2001 WI 53, on certification
For Hansen: Pamela Pepper
Issue: Whether legislative inaction following judicial interpretation of a statute presumes legislative acquiescence in that interpretation.
Holding:
¶ 38. At oral argument, the State emphasized the rule of statutory construction that legislative inaction following a judicial interpretation of a statute may give rise to a presumption of legislative acquiescence in that interpretation. The State advances that we must infer acquiescence from the five years of inaction since Petty was decided. While the presumption that arises from legislative inaction may carry the day in some cases, this rule of statutory construction has also been characterized as a "'weak reed upon which to lean."' Green Bay Packaging, Inc. v. DILHR, 72 Wis. 2d 26, 36, 240 N.W.2d 422 (1976) (quoted source omitted). Reliance on this canon is even weaker when we are asked to infer acquiescence from the legislature's inaction in response to a footnote which is not precedential and reaches issues unnecessary to the determination of a case. We therefore refuse to give the legislative inaction any conclusive effect.
Construction – Avoid Superfluous Meaning
State v. William Allen Wisth, 2009 WI App 53, PFR filed 4/29/09
For Wisth: Jeremy Perri, SPD, MilwaukeeAppellate
Issue/Holding: In construing a statute, meaning should be given to every word, clause and sentence, so as to avoid whenever possible making part of the statute superfluous, ¶8.
Construction – Particular Term: “And,” May Mean “Or”
State v. Stephen A. Freer, 2010 WI App 9, PFR filed 12/30/09
For Freer: Suzanne L. Hagopian, SPD, Madison Appellate
Issue/Holding:
¶13   We conclude that Wis. Stat. § 940.44(2), the victim intimidation statute, is ambiguous. First, as the State points out, “and” in statutes is not always interpreted as a conjunctive term. See Duychak, 133 Wis.  2d at 317, and Wester, 691 N.W.2d at 41. Indeed, this is not a new idea in Wisconsin. See State ex rel. Wisconsin Dry Milk Co., 176 Wis. at 204 (“It is a familiar rule of construction that the words ‘or’ and ‘and’ are often used incorrectly, and that where a strict reading would render the sense dubious one may be read in place of the other, in deference to the meaning of the context.”) (citations omitted).

¶14   We acknowledge, as Freer argues, that modern sources of authority appear to be generally less inclined to interpret “and” in the disjunctive. Compare 1A Singer, Sutherland Statutory Construction § 21.14 p. 20 (5th ed. Cum. Supp. 2001) (the “strict meaning” of “and” and “or” “should be followed when their accurate reading does not render the sense of the statute confusing and there is no clear legislative intent to have the words not mean what they strictly should”) and State ex rel. Rich v. Steiner, 160 Wis. 175, 177-78, 151 N.W.256 (1915) (“strict meaning” of “and” and “or” should be “more readily departed from other words” because the statutes have become “infected” by popular misuse of “and” and “or”). Nonetheless, it remains true that the legislature has a history of using “and” when the context shows it means “or.”

Wester, a Nebraska case, puts the matter this way: “The laxity in the use of the conjunctive ‘and’ and the disjunctive ‘or’ is so frequent that the doctrine has been accepted that they are interchangeable and that one may be substituted for the other if to do so is necessary to give effect to any part of a statute or to effectuate the intention of the Legislature.” Given the court’s approving citation, you might think it was adopting this idea that “and” and “or” are “interchangeable.” But the thrust of the court’s analysis, though less clear than optimal, appears to be that these terms are construed in accordance with their ordinary definitions … unless that would cause an allergic reaction, ¶20 n. 4:
Consideration of legislative history appears to be particularly fitting when a statutory interpretation turns on whether to apply a conjunctive or disjunctive meaning to the words “and” or “or”; multiple sources of authority state that “and” is to be given its usual, conjunctive meaning and “or” is be read in the disjunctive unless such an interpretation would be contrary to the legislative intent. See State v. Duychak, 133 Wis. 2d 307, 317, 395 N.W.2d 795 (Ct. App. 1986) (“and” and “or” may be substituted for each other when such a reading is consistent with legislative intent); State v. Wester, 691 N.W.2d 536, 540-41 (Neb. 2005) (“and” may be read as “or” and vice versa “if to do so is necessary … to effectuate the intention of the Legislature”); 1A Singer, Sutherland Statutory Construction § 21.14 p. 20 (5th ed. Cum. Supp. 2001) (“courts have generally said that [“and” and “or”] are interchangeable and that one may be substituted for the other, if consistent with the legislative intent.”). This formulation suggests at the very least that, when determining whether to read “and” or “or” conjunctively or disjunctively in a statute, the inquiry should not end with the plain meaning of these terms.
If you favor largely untrammeled judicial authority to manipulate statutory meaning then this is the opinion for you. If not, then you’ll perceive the potential for at least some mischief. It is jarring, though, to have the court tell you that “and” and “or” don’t necessarily have plain meanings, and then cite an LRB analysis employing “or” as if it’s self-explanatory, ¶20. Apparently the court can simply juggle the terms until satisfied with the result.
Construction – Particular Term: “Trial”
State v. William Allen Wisth, 2009 WI App 53, PFR filed 4/29/09
For Wisth: Jeremy Perri, SPD, MilwaukeeAppellate
Issue/Holding:
¶7        First, we give the word “trial” its plain meaning. Webster’s Third New International Dictionary 2439 (unabr. 1993) defines “trial” as “the formal examination of the matter in issue in a cause before a competent tribunal for the purpose of determining such issue” and “the mode of determining a question of fact in a court of law.” Black’s Law Dictionary 1543 (8th ed. 2004) defines “trial” as “[a] formal judicial examination of evidence and determination of legal claims in an adversary proceeding.” These definitions describe the process by which a court presides over the determination of facts—whether the ultimate factfinder is the court or the jury—and applies the law to those facts. As applied to criminal proceedings, the “issue” or “legal claim” is whether the defendant is guilty or not guilty. The trial court is the “competent tribunal” before which the “issue” or “legal claim” is examined. See Webster’s Third New Int’l Dictionary 2439 (unabr. 1993); Black’s Law Dictionary 1543 (8th ed. 2004). When the issue of guilt or lack of guilt is resolved, a criminal “trial” is complete.
Somewhat broader definition of “trial” in older case, Pulaski v. State, 23 Wis.2d 138, 142, 126 N.W.2d 625 (1964) (“A trial is defined as a judicial examination of the issues between the parties whether they be issues of law or of fact. Sec. 270.06; see also 88 C.J.S., Trial, p. 19, sec. 1.”). To be sure, if you assume that in a criminal case “trial” necessarily refers to determination of guilt, then the court of appeals’ analysis is unassailable. But the court merely asserts this assumption. Perhaps it's so, but is it really that self-evident?
Construction – Particular Term: “Alibi”
State v. Barbara E. Harp, 2005 WI App 250
For Harp: Aaron N. Halstead, Kathleen Meter Lounsbury, Danielle L. Carne
Issue/Holding:
¶15      The statute does not define “alibi.” The state supreme court offered the following definition of the term in State v. Shaw, 58 Wis. 2d 25, 30, 205 N.W.2d 132 (1973), overruled on other grounds, State v. Poellinger, 153 Wis. 2d 493, 505, 451 N.W.2d 752 (1990): “The word, ‘alibi,’ is merely a short-hand method of describing a defense based on the fact that the accused was elsewhere at the time the alleged incident took place. The word, ‘alibi,’ is simply the Latin word for ‘elsewhere.’”
Construction -- Particular Term: “Includes”; “Means”
State v. James P., 2005 WI 80, affirming, 2004 WI App 124
For James P.: Carl W. Chessir
Issue/Holding:
¶25      Furthermore, it is significant that the first sentence of the definition of "parent" utilizes the word "means," whereas the second sentence utilizes the word "includes."  Kalal, 271 Wis.  2d 633, ¶46 ("[S]tatutory language is interpreted in the context in which it is used[.]").  When utilized in statutory definitions, "means" is a term indicating limitation or completeness, whereas "includes" is a term indicating partiality and expansiveness.  See Stephen R. Miller, Legislative Reference Bureau, Wisconsin Bill Drafting Manual 2.01(1)(i)(2005-06). 

¶26      Thus, "[g]enerally, the word 'includes' is to be given an expansive meaning, indicating that which follows is but a part of the whole."  Wisconsin Citizens Concerned for Cranes and Doves, 270 Wis.  2d 318, ¶17 n.11 (citing Milwaukee Gas & Light Co. v. Dept. of Taxation, 23 Wis.  2d 195, 203 & n.2, 127 N.W.2d 64 (1964)).  While courts may sometimes read the word "includes" as a term of limitation or enumeration under the doctrine of expressio unius est exclusio alterius, there must be some textual evidence that the legislature intended this doctrine to apply.  Id.

Nothing groundbreaking, of course, but it’s worth mentioning the court’s increasing reliance on the LRB Drafting Manual. See also State v. John F. Powers, 2004 WI App 156, ¶14 n. 8 (Manual treated akin to dictionary, not “extrinsic” source).
Construction -- Particular Term: “Includes” -- Ejusdem Generis
State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16
For Popenhagen: James B. Connell
Issue/Holding:
¶43 One rule to be used in interpreting the word "includes" is that the word may be interpreted contrary to its ordinary, non-exclusive meaning. The word "includes" may therefore be read as a term of limitation or enumeration, so that a statute encompasses only those provisions or exceptions specifically listed. This court has, however, adopted this limited reading of "includes" only when there is some textual evidence that the legislature intended the word "includes" to be interpreted as a term of limitation or enumeration. [23]

¶45 A second rule to be used in interpreting the word "includes" is to give the word its common, broad, non-exclusive meaning. [24] Applying this rule of interpretation we would conclude that the motion to suppress in the present case falls within Wis. Stat. § 968.135.

¶46 A third rule to be used in interpreting the word "includes" is ejusdem generis, which literally means "of the same kind." This rule helps determine whether the statutorily enumerated motions limit in some way the other motions that may be brought under Wis. Stat. § 968.135. Ejusdem generis applies when a general word ("motions" in the present case) is used in a statute and is either preceded or followed by specific words in a statutory enumeration ("motions to quash or limit" a subpoena in the present case). [25]

Construction -- Particular Term: "Includes"
WCCD v. DNR, 2004 WI 40, affirming 2003 WI App 76, 263 Wis. 2d 370, 661 N.W.2d 858
Issue/Holding: ¶17 n. 11:

11  Generally, the word "includes" is to be given an expansive meaning, indicating that which follows is but a part of the whole. Milwaukee Gas Light Co. v. Dept. of Taxation, 23 Wis. 2d 195, 203 & n.2, 127 N.W.2d 64 (1964). However, under the doctrine of expressio unius est exclusio alterius--"the expression of one thing excludes another"--courts may read "includes" as a term of limitation or enumeration, so that a statute encompasses only those provisions or exceptions specifically listed. State v. Delaney, 2003 WI 9, ¶22, 259 Wis. 2d 77, 658 N.W.2d 416. See also State v. Engler, 80 Wis. 2d 402, 408, 259 N.W.2d 97 (1977); Harris v. Larson, 64 Wis. 2d 521, 527, 219 N.W.2d 335 (1974). This rule may be applied only where there is some evidence that the legislature intended it to apply. Pritchard v. Madison Metro. Sch. Dist., 2001 WI App 62, ¶13, 242 Wis. 2d 301, 625 N.W.2d 613. Here, many of the terms contained in Wis. Stat. § 29.001 are not defined by a general definition, but rather are defined by the use of the word "includes" followed by a list of certain species. See, e.g., Wis. Stat. §§ 29.001(30)-(41). As discussed infra, the mourning doves were once on the list of "game birds" contained in § 29.001(39), but were later removed by the legislature. Had the legislature intended that the doctrine of expressio unius est exclusio alterius was not to apply, there would be no point in removing a single species from the definition of a term. Examining Wis. Stat. § 29.001 as a whole, we believe the legislature intended the narrow meaning of "includes," such that the doctrine of expressio unius est exclusio alterius is applicable.

Construction -- Particular Term: "Refuses"
State ex rel Ralph A. Kalal v. Circuit Court for Dane County, 2004 WI 58
For Kalal: Waring R. Fincke
Issue/Holding:
¶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.
Construction -- Particular Term: "Shall"
State v. David S. Stenklyft, 2005 WI 71, on bypass
For Stenklyft: Suzanne L. Hagopian, SPD, Madison Appellate
Issue/Holding:
¶124    This court has, in several instances, considered whether the use of the word "shall" was directory, rather than mandatory. See State ex rel. Marberry v. Macht, 2003 WI 79, ¶15, 262 Wis. 2d 720, 665 N.W.2d 155; Eby v. Kozarek, 153 Wis. 2d 75, 79, 450 N.W.2d 249 (1990); Karow v. Milwaukee County Civil Serv. Comm., 82 Wis. 2d 565, 571, 263 N.W.2d 214 (1978); Merkley v. Schramm, 31 Wis. 2d 134, 138, 142 N.W.2d 173 (1966); Kamuchey v. Trzesniewski, 8 Wis. 2d 94, 100, 98 N.W.2d 403 (1959); Galewski v. Noe, 266 Wis. 7, 16, 62 N.W.2d 703 (1954); Wallis v. First Nat'l Bank, 155 Wis. 533, 536, 145 N.W.2d 195 (1914). In order to determine whether "shall" is mandatory or directory, "we must consider several factors, including 'the existence of penalties for failure to comply with the limitation, the statute's nature, the legislative objective for the statute, and the potential consequences to the parties, such as injuries or wrongs.'" Fond du Lac County v. Elizabeth M.P., 2003 WI App 232, ¶22, 267 Wis.  2d 739, 672 N.W.2d 88 (quoting Macht, 262  2d 720, ¶15). "Thus, 'the determination of whether "shall" is mandatory or directory is not governed by a per se rule.'"  Macht, 262  2d 720, ¶15 (quoting State v. R.R.E, 162  2d 698, 707, 470 N.W.2d 283 (1991)). …