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Misconduct in Public Office, § 946.12(3) – Venue, § 971.19(12)

State v. Scott R. Jensen, 2010 WI 38, reversing 2009 WI App 26, prior history omitted; for Jensen: Robert H. Friebert; BiC; Resp.; Reply

¶1   … The issue presented is whether Waukesha County Circuit Court is the proper venue for Jensen’s trial because it is the “circuit court for the county where the defendant resides” pursuant to § 971.19(12), or whether Dane County Circuit Court, the circuit court for the county “where the crime was committed,” is the proper venue for his trial pursuant to § 971.19(1).

¶2   We conclude that Wis. Stat. § 971.19(12) establishes Waukesha County Circuit Court as the proper venue for Jensen’s trial because the State’s allegations against Jensen come within two categories of actions described in § 971.19(12). First, the State alleged that Jensen violated a law arising from or in relation “to the official functions of the subject of the investigation.” Second, the State alleged that Jensen violated a law “arising from or in relation to . . . any matter that involves elections . . . under chs. 5 to 12.” …

Efficient summary by the Chief Justice, concurring: “In practical terms, § 971.19(12) provides a special venue rule for certain offenses by public officials: trial in the county of the official’s residence. This venue provision supplants the usual rule of venue, which is of long standing and constitutional stature, that prosecution and trial generally take place where the offense occurred,” ¶56. Also noted: a potential equal protection argument, ¶73 n. 15. But a § 971.19(12) problem may be too obscure to ever cross your desk; even so, this is first and foremost a statutory construction decision, and you’ll want to take stock of the overarching principles bandied about. These include:

  1. Punctuation: more specifically, the “serial comma” rule, discussed in some detail by the majority, ¶¶22-23.
  2. Particular terms: legislative use of “any” or some form of “involves” signifies intent to apply “broad” meaning to statute, ¶¶29-30.
  3. Context: “Statutory interpretation also requires that we examine the statutory language … in the context in which it is used, i.e., in relation to the language of closely-related statutes,” ¶31.
  4. Legislative history: consulted to verify plain-meaning interpretation, not just to clarify ambiguity, ¶39, n. 17.

Clear enough, right? Well, the court not so long ago determined that the “serial punctuation” rule wasn’t especially meaningful, Peterson v. Midwest Security Ins. Co., 2001 WI 131, ¶23 n. 7 (“interpreting a legal text is not like diagramming a sentence or correcting an English paper. The rules of grammar and punctuation should not be applied at the expense of a natural, reasonable reading of the statutory language … Here, strict adherence to the ‘rule of the serial comma’ as advocated by the dissent operates to add a substantive requirement to the statute that it otherwise does not contain.”) Rules of grammar are important … except when they’re not. Besides, as the concurrence persuasively argues in effect, the statutory text is so opaque that typical rules of construction have little utility. (¶65: “The first quandary is that the text is grammatically challenged. It cannot be understood as written.”) Meaning is revealed only with detailed recitation, including contemporaneous news accounts, of the enactment’s history. While the statutory text may be irredeemably murky, its “goal of removing certain (but not all) cases involving public officials from prosecution and trial in Dane County to the county of the official’s residence is, however, clear. The legislative findings and history inform the application of § 971.19(12) to the present case,” ¶76. Is the concurrence more deferential to apparent legislative intent than the majority? You be the judge. But the larger lesson is that you ignore secondary sources at your peril.

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