Interfering with Custody, § 948.31(2)
Issue certified: Whether the court of appeals’ prior interpretation of § 948.31(2) to require “initial permission” from the parent should be overruled, State v. Bowden, 2007 WI App 234, ¶18, 306 Wis. 2d 393, 742 N.W.2d 332.
§ 948.31(2) addresses “[w]hoever causes a child to leave, takes a child away or withholds a child for more than 12 hours from the child’s parents … without the consent of the parents[.]” Ziegler’s conviction is based on the “withholds a child” alternative, after he allowed a runaway minor to stay with him a few days. He argues he can’t be guilty of this particular offense, because “withholds a child” requires parental permission to take or look after the child, and indisputably no such permission was given. This is where Bowden comes in. There, the court of appeals rejected Bowden’s argument that the withholding element requires parental presence, 2007 WI App 234, ¶18:
The State posits that the withholding method of interference focuses on permission, not being in the parent’s presence. We agree. The withholding method addresses a situation where the person who takes the child has some initial permission to do so. The other two methods speak to situations where the parent has given no permission to the person who “causes a child to leave” or “takes a child away.” See WIS. STAT.§ 948.31(2). Bowden’s argument that “causes … to leave” means from the parent’s actual presence suggests that parental custody ends when the child is out of the parent’s presence. Without commenting on the merit of that position, to adopt it would require that we add words to the statute that are not there. We decline to do so. See Samuel, 240 Wis. 2d 756, ¶35.
The Certification rejects the State’s claim that this language is dicta; therefore, the court is presently bound by it. Ziegler was convicted of “withholding” the child – but she was a runaway, so “initial permission” obviously couldn’t be proven, and if it is indeed an element, then Ziegler can’t be guilty of this particular offense. But, having bought the State’s argument in Bowden, the court now comes down with a severe case of buyer’s (and the State, seller’s) remorse:
Wisconsin Stat. § 948.31(2) states that “[w]hoever causes a child to leave, takes a child away or withholds a child for more than 12 hours from the child’s parents … without the consent of the parents, the mother or the father with legal custody, is guilty of a Class I felony.” We agree with the State that there is nothing in the statutory language to indicate that in order to withhold custody from a parent, a defendant must have had “initial permission” from the parent to take the child. Compare Bowden, 306 Wis. 2d 393, ¶18, to § 948.31(2). Bowden’s interpretation seems to add language to the statute (and an element to the crime), which is something we may not do. See Cavey v. Walrath, 229 Wis. 2d 105, 111, 598 N.W.2d 240 (Ct. App. 1999). However, despite our disagreement with Bowden’s interpretation, we are bound by it unless it is dicta. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246, 256 (1997) (“only the supreme court, the highest court in the state, has the power to overrule, modify or withdraw language from a published opinion of the court of appeals”).
 We candidly admit that two of the three judges to this certification were members of the panel in State v. Bowden, 2007 WI App 234, 306 Wis. 2d 393, 742 N.W.2d 332. We also point out that the condition precedent of “initial permission” as a necessary component of “withholding a child more than 12 hours” was the argument of the State, which argument we agreed with and adopted. Of course, now the State expresses a contrary view
Well. Buyer’s remorse might have a certain valence under the UCC, but what about when it comes to after-the-fact construction of offense elements? Note the court of appeals’ prim declaration that “we may not” add language to a statute. That’s fine, but nor may the court simply amend a binding definition of an offense in order to sustain a conviction. E.g., Cole v. Young, 817 F.2d 412, 421 (7th Cir.1987), discussing Marks v. United States, 430 U.S. 188 (1977), and Bouie v. City of Columbia, 378 U.S. 347 (1964):
Marks makes two points pertinent to this case: first, a decision overruling a prior interpretation of a criminal statute is (or at least is ordinarily) “unforeseeable” under Bouie; and second, the fact that a judicial construction restores the correct understanding of the law is of no consequence in determining whether its retroactive application violates due process.
In light of these principles, it is clear that the State v. Cole court was not free to overrule Kirby retroactively and apply a newly enlarged definition of mayhem to Cole’s case. Even if the court had rejected Kirby’s holding that great bodily harm is an element of mayhem, the principle of fair warning would have required that the decision not be given retroactive effect. Retroactivity would have been permissible only if the repudiation of Kirby was somehow “foreseeable,” which it almost certainly was not. Given the ample indications that State v. Cole was not intended to overrule Kirby, and the considerable due process problems raised by such an interpretation, we conclude that State v. Cole did not overrule Kirby.
That is, the Certification utterly fails to acknowledge this due process obstacle to affirmance. Hard to believe the supreme court won’t.