State—Department of Corrections v. Schwarz

2004 WI App 136, 685 N.W.2d 585, 275 Wis. 2d 225, 2004 Wisc. App. LEXIS 463
CourtCourt of Appeals of Wisconsin
DecidedJune 2, 2004
Docket03-2001
StatusPublished
Cited by3 cases

This text of 2004 WI App 136 (State—Department of Corrections v. Schwarz) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State—Department of Corrections v. Schwarz, 2004 WI App 136, 685 N.W.2d 585, 275 Wis. 2d 225, 2004 Wisc. App. LEXIS 463 (Wis. Ct. App. 2004).

Opinions

CURLEY, J.

¶ 1. James Dowell appeals the trial court's order that overturned the decision of David Schwarz, the Administrator of the Division of Hearings and Appeals. Schwarz affirmed the Administrative Law Judge's (ALJ) decision not to revoke Dowell's parole. Schwarz, like the ALJ, concluded that the Department of Corrections (DOC) failed to provide proof that Dowell violated his most recent rules of parole when it attempted to revoke his parole based on DNA results that linked him to a crime that occurred during an earlier period of parole. Because Wis. Stat. § 304.072(3) (2001-02),1 governing the DOC's jurisdiction in parole matters, is unambiguous and clearly limits the DOC's jurisdiction to seek revocation only for violations that occur during the current term of supervision, we reverse and reinstate the decision of the Administrator of the Division of Hearings and Appeals.

I. Background.

¶ 2. Dowell was convicted on March 30, 1994, of two counts of armed robbery and one count of operating a vehicle without the owner's consent. On May 9,1994, he was sentenced to a total of ninety months in prison. [230]*230He was paroled in 1997, but his parole was subsequently revoked and he was sent back to prison on March 23, 1998. Upon reaching his mandatory release date of July 17, 2001, Dowell was again paroled.

¶ 3. In May 2002, while Dowell was out on parole, the DOC received notice that Dowell's DNA matched semen found on the clothing of a victim of a crime that occurred on May 23, 1997, while Dowell was out on the first of his two periods of parole. As a result, the DOC sought to revoke Dowell's parole, as there were two years, one month and fourteen days of his sentence remaining. A revocation hearing was held on June 18, 2002. The ALJ ruled that the DOC failed to allege any conduct that violated Dowell's July 2001 parole rules, and thus, denied the DOC's request to revoke Dowell's parole, concluding that the DOC "lost jurisdiction to pursue revocation for any undiscovered conduct occurring during that parole term" once that parole was revoked. The DOC appealed this ruling to Schwarz. Schwarz upheld the ALJ's decision, finding that Wis. Stat. § 304.072(3) essentially requires a revocation recommendation to be based on a violation that occurred during the current term of supervision. The DOC then petitioned for a writ of certiorari in the trial court. After ordering briefs, the trial court reversed Schwarz's decision and signed an order to that effect.

¶ 4. As a result of the DNA match, Dowell was convicted of kidnapping, armed robbery and two counts of first-degree sexual assault with a dangerous weapon. In February 2003, he was sentenced to a total of eighty years' imprisonment.

[231]*231II. Analysis.

¶ 5. A challenge to a parole revocation determination is reviewed by certiorari. State ex rel. Macemon v. McReynolds, 208 Wis. 2d 594, 596, 561 N.W.2d 779 (Ct. App. 1997). The reviewing court is limited to determining: "(1) [w]hether the [parole] board kept within its jurisdiction; (2) whether [the parole hoard] acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question." State v. Goulette, 65 Wis. 2d 207, 215, 222 N.W.2d 622 (1974). Moreover, "we review the agencys decision, not the [trial] courts." Kozich v. Employe Trust Funds Bd., 203 Wis. 2d 363, 368-69, 553 N.W.2d 830 (Ct. App. 1996).

¶ 6. "Statutory interpretation is a question of law that we review de novo, and as such, we are not bound by an agency's interpretation." Hutson v. State of Wisconsin Pers. Comm'n, 2003 WI 97, ¶ 31, 263 Wis. 2d 612, 665 N.W.2d 212. However, some degree of deference is generally given to an agency's statutory interpretation, and "[t]he degree of deference . . . depends upon the extent to which the 'administrative agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute.'" Id. (citation omitted). The supreme court has identified three distinct levels of deference: great weight deference, due weight, and de novo review. UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996). The de novo standard of review is "applicable when the issue before the agency is clearly [232]*232one of first impression, or when an agency's position on an issue has been so inconsistent so as to provide no real guidance." Id. at 285 (citation omitted).

¶ 7. Here, although Schwarz indicated that the ALJ's interpretation is "consistent with the department's past practice," and that "the department has never sought to revoke any person's parole supervision based on conduct occurring during a previous term of parole supervisiont,]" it appears that parole revocation has been sanctioned on at least one occasion in the past for conduct occurring during a previous term. As the agency's position on the issue may not be entirely consistent, we will employ the de novo standard of review.2

¶ 8. As the supreme court recently reaffirmed, "[w]hen interpreting a statute, our goal is to discern the intent of the legislature, which we derive primarily by [233]*233looking at the plain meaning of the statute." Wisconsin Citizens Concerned for Cranes and Doves v. DNR, 2004 WI 40, ¶ 6, 270 Wis. 2d 318, 677 N.W.2d 612. [I]f the statute is unambiguous, we do not consult extrinsic sources such as legislative history to ascertain its meaning; we simply apply its plain meaning." Id. Furthermore, a statute is not rendered ambiguous "because the parties disagree as to its meaning!.]" Id., ¶ 7. A statute is only ambiguous if it "is readily susceptible to two or more meanings by reasonably well-informed individuals." Id. Accordingly, unambiguous statutes are applied according to their plain meaning, and that plain meaning "takes precedence over all extrinsic sources and rules of construction, including agency interpretations." UFE Inc., 201 Wis. 2d at 282 n.2.

¶ 9. Thus, when addressing claims of ambiguity, we first look to the wording of the statute itself. Wisconsin Stat. § 304.072(3) directs:

(3) Except as provided in s. 973.09 (3) (b), the department preserves jurisdiction over a probationer, parolee or person on extended supervision if it commences an investigation, issues a violation report or issues an apprehension request concerning an alleged violation prior to the expiration of the probationer's, parolee's or person's term of supervision.

(Emphasis added.) Initially, § 304.072(3) references the exception created by Wis. Stat. § 973.09

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State-Department of Corrections v. Schwarz
2005 WI 34 (Wisconsin Supreme Court, 2005)
State—Department of Corrections v. Schwarz
2004 WI App 136 (Court of Appeals of Wisconsin, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
2004 WI App 136, 685 N.W.2d 585, 275 Wis. 2d 225, 2004 Wisc. App. LEXIS 463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/statedepartment-of-corrections-v-schwarz-wisctapp-2004.