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Defenses – Statute of Limitations, § 939.74 – Version Applicable to Since-Repealed, Ch. 944 Offense

State v. Bruce Duncan MacArthur, 2008 WI 72, on Certification
For MacArthur: Alex Flynn
Amicus: Robert R. Henak

Issue/Holding: Alleged violations, between 1965 and 1972, of since-repealed ch. 944 sexual assault statutes come within the statute of limitations provision extant during that time frame.

There is, of course, a whole lot more to it than that, at least in terms of getting to that point, but this may be the nub of it:

¶17      We conclude that the 1965-1972 version of Wis. Stat. § 939.74 governs the case at issue because (1) here, the offenses allegedly occurred prior to the effective date of § 939.74(2)(c), which was July 1, 1989; and (2) the legislature did not include chapter 944 crimes in subsection (2)(c) of § 939.74 even though it specifically included chapter 948 crimes. Accordingly, neither the 1987 amendment to § 939.74, which created subsection (2)(c), nor any subsequent amendment to subsection (2)(c) applies to the case at hand.

¶18      Wisconsin Stat. §§ 990.06 and 991.07 [12] instruct that when a limitation period has been repealed and the repealing act provides for a new limitation period, “such latter limitation or period shall apply only to such rights or remedies as shall accrue subsequently to the time when the repealing act shall take effect” and the repealed act shall continue in force and be operative unless the repealing act specifically provides otherwise.

¶19      Applying Wis. Stat. §§ 990.06 and 991.07 to the case at hand, we conclude that Wis. Stat. § 939.74(2)(c) (1987-88) (effective July 1, 1989), does not apply to MacArthur. The causes of action here accrued between 1965 and 1972. …

¶26      In summary, by its plain language, no version of subsection (2)(c) applies to the chapter 944 charges from 1965-1972. The 1987 version of Wis. Stat. § 939.74 does not apply because it specifically stated that subsection (2)(c) was to apply only prospectively from July 1, 1989, and subsection (2)(c) listed only chapter 948 offenses, thus leaving out any mention of “predecessor statutes” to chapter 948. The 1993, 1997, and 2003 versions do not apply to the case at hand for two reasons. First, the legislature has not specifically withdrawn the 1987 directive to apply subsection (2)(c) only prospectively. Second, the post-1987 amendments apply only to claims not yet barred by a previous version of subsection (2)(c). The 2005 version of Wis. Stat. § 939.74 does not apply because it became effective after MacArthur was charged with these offenses.

This result seems, at first glance to be very fact-specific (which is to say, limited to repealed ch. 944 offenses), but the concurrence (¶¶55-65) argues that the implications are quite broad. Perhaps so if, for a superceding statute of limitations to have retroactive effect, the statutory language must so specify.


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