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SCOW: Circuit courts can’t waive the DNA surcharge for crimes committed after January 1, 2014

State v. Michael L. Cox, 2018 WI 67, 6/15/18, on certification from the court of appeals; case activity (including briefs)

For years the DNA surcharge statute said that a court “shall” impose a surcharge on certain felony sex offenses and “may” impose a surcharge on any other felony offense. See § 973.046 (1g) and (1r) (2011-12). That changed in 2013 Wis. Act 20, §§ 2353 and 2354, which amended the statute to say a court “shall” impose a surcharge for all criminal convictions, including misdemeanors, committed on or after January 1, 2014. A unanimous supreme court holds that in making this change the legislature intended to eliminate a circuit court’s discretion to waive the surcharge by requiring the surcharge to be imposed in every case.

¶13     The recent history of Wis. Stat. § 973.046 convinces us that “shall” carries its presumptively mandatory meaning in this context. Prior to Act 20, § 973.046 unquestionably distinguished between discretionary and mandatory DNA surcharges. The court had discretion to impose the surcharge on any defendant convicted of a felony, as evidenced by the statutory “may impose” language. § 973.046(1g) (2011-12). In contrast, the statute said the court “shall impose” the surcharge when the defendant stood convicted of at least one of the enumerated offenses. § 973.046(1r) (2011-12). We have long said that “[w]hen the words ‘shall’ and ‘may’ are used in the same section of a statute, one can infer that the legislature was aware of the different denotations and intended the words to have their precise meanings.” Karow [v. Milwaukee County Civil Service Comm’n], 82 Wis. 2d [565,] 571[, 263 N.W.2d 214 (1978)]; State ex rel. Marberry v. Macht, 2003 WI 79, ¶16, 262 Wis. 2d 720, 665 N.W.2d 155.

¶14     “Shall” must certainly have meant “must” in the pre-Act 20 statute because anything less would have been absurd…. If that term had borne the merely directive sense of the word, we would have to conclude that one subsection of the pre-Act 20 statute gave courts discretion to impose the DNA surcharge (with respect to all felons, see Wis. Stat. § 973.046(1g) (2011-12)), while the other simply added a presumption of applicability to the courts’ discretion (with respect to those convicted of the enumerated offenses, see Wis. Stat. § 973.046(1r) (2011-12)). We see no textual or contextual clues that would support such a mincing distinction, nor has Mr. Cox identified any. We have no difficulty concluding that, prior to Act 20, the “shall impose” language of § 973.046(1r) (2011-12) meant that the court must apply the DNA surcharge in the identified circumstances.

¶15     Act 20 eliminated the distinction between convictions in which the court “may impose” the DNA surcharge and those in which it “shall impose” the surcharge. 2013 Wis. Act 20, §§ 2353[, 2354, and] 2355. In abandoning the distinction, it swept all convictions into the “shall impose” category (and expanded it to include misdemeanors). If we presume the legislature understood the distinction between “may” and “shall” when it created Wis. Stat. § 973.046 (2011-12), then we must afford it the same courtesy when evaluating the work it accomplished with Act 20. And if the point of the amendment had been to make the DNA surcharge discretionary with respect to all convictions, the statute already had a ready-made category for that purpose——the “may impose” subsection. The legislature, however, pointedly rejected that option by eliminating the discretionary category. If “shall impose” meant “must” before Act 20 (and it did), there is no reason to believe that it means less than “must” now. Nothing in Act 20 or the resulting language of § 973.046 suggests the mandatory nature of the “shall” category changed just because it is now comprehensive instead of selective. Consequently, there is no reason for us to read “shall” as anything other than “must” in the current version of § 973.046(1r).

Cox valiantly argued that the legislature’s intent wasn’t so clear based on the amendment made in the very same Act 20 to the victim/witness surcharge under § 973.045(1). That statute already said the surcharge “shall” be imposed, but the legislature added language saying that it “may not be waived, reduced, or forgiven for any reason.” 2013 Wis. Act 20, § 2348. If “shall” removes discretion by itself, the legislature’s extra “we really mean it” language is surplusage, Cox argued. The court says this is a “worthy” argument, but not a persuasive one: Before Act 20, according to a Legislative Audit Bureau report, “[circuit] courts were treating this ‘shall impose’ language … as a directive, not a mandate. Act 20 added the waiver abatement language for the obvious purpose of ending that practice.” (¶19).

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