Interfering with Custody, § 948.31(2)
Issue (from Certification):
In State v. Bowden, 2007 WI App 234, 306 Wis. 2d 393, 742 N.W.2d 332, we analyzed Wis. Stat. § 948.31(2), which deals with criminal charges for interference with custody of children. There, we stated that withholding custody of a child “addresses a situation where the person who takes the child has some initial permission to do so.” We certify to ask the supreme court to determine whetherBowden’s interpretation is contrary to the plain language of the statute.
The court of appeals appears unhappy with its own construction of “withholding custody” under § 948.31(2) – specifically, Bowden‘s statement quoted above. However, the court of appeals is powerless to amend the language, Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (“[O]nly 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.”), and therefore asked the supreme court to do what it cannot. But the due process right to notice imposes an obstacle of its own; see prior post for discussion.