State v. Corey T. Rector ( 2023 )

2023 WI 41SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP1213-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Cross-Appellant,
v.
Corey T. Rector,
Defendant-Appellant-Cross-Respondent.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: May 23, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 12, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Kenosha
JUDGE: Jason A. Rossell
JUSTICES:
KAROFSKY, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET and HAGEDORN, JJ., joined.
REBECCA GRASSL BRADLEY, J., filed an opinion concurring in part
and dissenting in part, in which ZIEGLER, C.J., and ROGGENSACK,
J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-cross-appellant, there were
briefs filed by Winn S. Collins, assistant attorney general,
with whom on the briefs was Joshua L. Kaul, attorney general.
There was an oral argument by Winn S. Collins, assistant
attorney general.
For the defendant-appellant-cross-respondent, there were
briefs filed by Andrew R. Hinkel, assistant state public
defender. There was an oral argument by Andrew R. Hinkel,
assistant state public defender.
An amicus curiae brief was filed by Katie R. York,
appellate division director, with whom on the brief was Kelli S.
Thompson, state public defender, for the Wisconsin State Public
Defender.
2
2023 WI 41NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP1213-CR
(L.C. No. 2018CF840)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Cross-Appellant, FILED
v. MAY 23, 2023
Corey T. Rector, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Cross-Respondent.
KAROFSKY, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET and HAGEDORN, JJ., joined.
REBECCA GRASSL BRADLEY, J., filed an opinion concurring in part
and dissenting in part, in which ZIEGLER, C.J., and ROGGENSACK,
J., joined.
APPEAL from an order of the Circuit Court for Kenosha
County, Jason A. Rossell, Judge. Affirmed.
¶1 JILL J. KAROFSKY, J. This case determines whether
Corey Rector must comply with sex offender registration
requirements for life under Wis. Stat. § 301.45(5)(b)1. (2021-
22).1 Wisconsin's sex offender registration statute requires
All subsequent references to the Wisconsin Statutes are to
1
the 2021-22 version unless otherwise indicated.
No. 2020AP1213-CR
lifetime registration when a "person has, on 2 or more separate
occasions, been convicted . . . for a sex offense." Wis. Stat.
§ 301.45(5)(b)1. We are tasked with interpreting the phrase
"separate occasions," and we determine that, in the context of
this statute, the plain and ordinary meaning of "separate
occasions" does not refer solely to the number of convictions.
Consequently, the circuit court did not err by ordering Rector
to register as a sex offender for fifteen years rather than
until his death because his five convictions for possession of
child pornography were filed in a single case and occurred
during the same hearing. We also hold that the circuit court
did not err in finding Rector ineligible to participate in the
Earned Release Program (ERP).
I. BACKGROUND
¶2 The State filed a criminal complaint charging Rector
with ten counts of possession of child pornography in violation
of Wis. Stat. § 948.12(1m) after seizing over 1,000 offending
images and videos in Rector's possession. During a single
hearing, Rector pled guilty to five out of ten counts of
possession of child pornography.2 The circuit court3 sentenced
Rector to eight years initial confinement and ten years of
extended supervision on each of the five counts to be served
Pursuant to the plea agreement, the other five counts of
2
possession of child pornography were dismissed and the State
agreed not to issue any additional charges based on the other
discovered images.
The Honorable Jason
3 A. Rossell of the Kenosha County
Circuit Court presided.
2
No. 2020AP1213-CR
concurrently and ordered Rector to comply with sex offender
registration requirements for fifteen years. The court found
Rector ineligible to participate in the ERP, in relevant part
because the offense was not a "substance abuse crime."
¶3 The Department of Corrections (DOC) requested the
circuit court amend the Judgment of Conviction (JOC) because it
believed Wis. Stat. § 301.45(5)(b)1. required Rector to register
as a sex offender for life. The circuit court denied the motion
to amend the JOC, determining that § 301.45(5)(b)1. did not
require lifetime registration because the convictions did not
occur on "separate occasions." The State cross-appealed the
denial of the motion to amend.
¶4 Rector also filed a postconviction motion to amend the
JOC on the basis that the court improperly determined he was not
eligible to participate in the ERP. The circuit court denied
Rector's motion for two reasons: (1) the circuit court explained
that it only authorizes eligibility to participate in the ERP
when substance abuse "directly goes to the criminogenic factor
that caused the crime" and that was not the case here; and (2)
the circuit court was concerned that participation in the ERP
could lead to release before the defendant had served the
statutory minimum sentence. Rector filed an appeal challenging
the denial of his motion to amend the JOC.
¶5 The court of appeals certified the cross-appeal
pursuant to Wis. Stat. § (Rule) 809.61 because, in its view, the
plain meaning of "separate occasions" in Wis. Stat.
§ 301.45(5)(b)1. appears to conflict with this court's decisions
3
No. 2020AP1213-CR
in State v. Wittrock, 119 Wis. 2d 664, 350 N.W.2d 647 (1984),
and State v. Hopkins, 168 Wis. 2d 802, 484 N.W.2d 549 (1992).
We accepted certification and consequently also took
jurisdiction over Rector's appeal.
II. ANALYSIS
¶6 We begin by addressing the State's cross-appeal
regarding Wis. Stat. § 301.45(5)(b)1. and determine that
convictions based on charges filed in a single case and
occurring during the same hearing have not occurred on "2 or
more separate occasions." Therefore, the circuit court did not
err in requiring Rector to comply with registration requirements
for only 15 years. We then address Rector's appeal and
determine that the circuit court did not erroneously exercise
its discretion in finding Rector ineligible to participate in
the ERP.
A. Sex Offender Registration Requirements
¶7 When a person is ordered to comply with sex offender
registration requirements, Wisconsin's statutes offer two
options for how long those requirements extend——15 years or
until the offender's death. Wisconsin Stat. § 301.45(5)(a)
governs when a person must comply with registration requirements
for 15 years, and § 301.45(5)(b) governs when a person must
comply for life. Sections 301.45(5)(b)1., 1m., and 2. require
lifetime registration when applicable criteria are met. Section
301.45(5)(b)3. gives a circuit court discretion to otherwise
order lifetime registration. We note that this opinion does not
address § 301.45(5)(b)3., and as such it does not affect a
4
No. 2020AP1213-CR
circuit court's discretion to otherwise order lifetime
registration.
¶8 We must interpret Wis. Stat. § 301.45(5)(b)1. to
determine whether a person who has been convicted on multiple
counts of possession of child pornography filed within a single
case and whose convictions occurred during the same hearing must
comply with the sex offender registration requirements for life.
This is a question of statutory interpretation that we review de
novo. State v. Forrett, 2022 WI 37, ¶5, 401 Wis. 2d 678, 974
N.W.2d 422.
¶9 In addressing Wis. Stat. § 301.45(5)(b)1., we first
discern its plain meaning based on the language and context of
the statute. We next address this court's prior decisions in
Wittrock and Hopkins, which interpreted similar language in Wis.
Stat. § 939.62, and explain why those decisions do not dictate
our interpretation of § 301.45(5)(b)1. in this case.
1. The Plain Meaning of Wis. Stat. § 301.45(5)(b)1.
¶10 "Statutory interpretation begins with the language of
the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry." State ex rel. Kalal v. Cir. Ct.
for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110(quotations omitted). In discerning plain meaning, we use the
"common, ordinary, and accepted meaning" of words and give
"technical or specially-defined words or phrases" their
"technical or special definitional meaning." Id. Both context
and structure of a statute are important to meaning, and
5
No. 2020AP1213-CR
"[s]tatutory language is read where possible to give reasonable
effect to every word, in order to avoid surplusage." Id., ¶46.
¶11 Wisconsin Stat. § 301.45(5)(b)1. reads:
(b) A person who is covered under sub. (1g)(a), (b),
(bm), (c), (d), (dd), (dp) or (e) shall continue to
comply with the [sex offender registration]
requirements of this section until his or her death if
any of the following applies:
1. The person has, on 2 or more separate occasions,
been convicted or found not guilty or not responsible
by reason of mental disease or defect for a sex
offense, or for a violation or the solicitation,
conspiracy or attempt to commit a violation, of a
federal law, a military law, a tribal law or a law of
any state that is comparable to a sex offense.
We are asked to determine what it means to be convicted "on 2 or
more separate occasions."4 The State argues that a person meets
the criteria of being convicted "on 2 or more separate
occasions" when that person has been convicted of two or more
offenses. Rector argues that a person fails to meet the
criteria of being convicted "on 2 or more separate occasions"
when that person is convicted based on charges filed in a single
case, and the convictions occur during the same hearing.
According to Rector, the State's interpretation of the statute
reads out the phrase "separate occasions" altogether. We agree
with Rector that the plain and unambiguous meaning of the phrase
"separate occasions," given the context of § 301.45(5)(b)1.,
means that convictions based on charges filed in a single case
4The parties do not dispute that Rector was convicted of a
sex offense, which is defined to include "a violation . . . of
s. . . . 948.12." Wis. Stat. § 301.45(1d)(b).
6
No. 2020AP1213-CR
and occurring during the same hearing do not constitute
convictions on "separate occasions."
¶12 We begin by defining the phrase "separate occasions."
"Separate" means "set or kept apart: disunited." Separate, The
American Heritage Dictionary of the English Language 1645 (3d
ed. 1992). An "occasion" is "an event or a happening; an
incident"; or a "time at which an event occurs." Occasion, The
American Heritage Dictionary of the English Language 1250 (3d
ed. 1992). Taken together, a separate occasion is an incident
or time at which an event occurred, which is set apart from
another incident or time at which a different event occurred.
¶13 The relevant portion of Wis. Stat. § 301.45(5)(b)1.
says that a person must comply with registration requirements
until his or her death if "[t]he person has, on 2 or more
separate occasions, been convicted . . . for a sex
offense . . . ." It is clear from the sentence structure that
the "2 or more separate occasions" phrase is modifying the
conviction for a sex offense rather than the commission of a sex
offense. The statute refers to one who has "been convicted" for
a sex offense on separate occasions rather than one who "has
committed" a sex offense on separate occasions. Furthermore,
the statute is generally focused on various possible
dispositions of a case——referencing conviction, a finding of not
guilty or not responsible by reason of mental disease or defect,
a reversed conviction, or a reversed finding of not guilty or
not responsible by reason of mental disease or defect——rather
than making any reference to the details surrounding the
7
No. 2020AP1213-CR
commission of an offense. As such, a person must comply with
registration requirements for life if the event of conviction
occurred at two or more separate (set apart) times.
¶14 Given the above framework, we must determine whether
the convictions in this case——which were filed in a single case
and occurred during the same hearing——constitute convictions on
"separate occasions." The common understanding and use of the
phrase "separate occasions" makes clear that Rector's
convictions fall outside the scope of § 301.45(5)(b)1.
¶15 Rector offers an illustrative example of the common
usage of separate occasions in his briefing: if a person goes to
the store and buys two apples, one right after the other, have
they purchased apples on two separate occasions? No. Clearly,
the transactions happened on one occasion. Conversely, if a
person said they purchased apples on two separate occasions, it
is evident that the apple-purchaser took two trips to the store.
¶16 The United States Supreme Court also recently
considered the ordinary meaning of the word "occasion" in Wooden
v. United States, determining that "occasion" commonly refers to
an "event, occurrence, happening, or episode" which "may itself
encompass multiple, temporally distinct activities." 142 S. Ct.
1063, 1069 (2022). The Court offered the occasion of a wedding,
which often includes a ceremony, cocktail hour, dinner, and
dancing, as an example of one occasion with various activities
that take place at different times. Id. In the context of
criminal behavior, the Court held that an "occasion" "may, in
common usage, include temporally discrete offenses." Id. at
8
No. 2020AP1213-CR
1070. More specifically the court determined that, "[Wooden's]
one-after-another-after-another burglary of ten units in a
single storage facility occurred on one 'occasion.'" Id. at
1069. The United States Supreme Court's analysis is, of course,
not binding on this court in matters of state statutory
interpretation, but the analysis is a persuasive example of the
common understanding of the term "occasion."
¶17 Wisconsin Stat. § 301.45(5)(b)1.'s use of the term
"separate" to modify "occasions" further assists us.
Convictions that are filed in a single case and pronounced
within the same hearing are not significantly "set apart" or
"disunited," and so are not "separate occasions." On the
contrary, when a court pronounces convictions from the same case
in a single hearing, those convictions are united by both
temporal proximity and by the same case filing.
¶18 Given the common and ordinary understanding of the
phrase "separate occasions" as shown through examples and
dictionary definitions, we hold that Rector's convictions did
not take place on "separate occasions." Like different apples
purchased during the same trip to the store, or different
activities occurring at the same wedding, Rector's multiple
convictions occurred during the same "occasion."
¶19 In contrast, the State fails to offer any textual
reading which gives effect to the phrase "separate occasions."
The State reads the statute as if it required a person to comply
with lifetime registration if that "person has twice been
convicted." But the statute actually reads if a "person has, on
9
No. 2020AP1213-CR
2 or more separate occasions, been convicted . . . ." By
ignoring "separate occasions" the State renders it surplusage.
However, "[s]tatutory language is read where possible to give
reasonable effect to every word, in order to avoid surplusage."
Kalal, 271 Wis. 2d 633, ¶46. The legislature used the phrase
"separate occasions." We must attempt to give effect to every
word, and as such, we hold that when a person is convicted based
on charges filed in a single case during the same hearing, then
those convictions have not occurred on "separate occasions."5
2. Wittrock, Hopkins, and Wis. Stat. § 939.62(2)
¶20 Although the meaning of the statute is clear from its
text, the State argues that our reading of Wis. Stat.
§ 301.45(5)(b)1. should be informed by this court's prior
interpretation of the term "separate occasions" in the context
of the criminal repeater statute, § 939.62(2), which reads as
follows:
The actor is a repeater if the actor was convicted of
a felony during the 5-year period immediately
preceding the commission of the crime for which the
actor presently is being sentenced, or if the actor
was convicted of a misdemeanor on 3 separate occasions
during that same period, which convictions remain of
record and unreversed.
The facts of this case——where Rector's convictions were
5
filed in a single case and occurred during the same hearing——
provide a sufficient basis to determine that the convictions did
not occur on separate occasions. We leave for another day
whether or not convictions that only meet one of those two
conditions have occurred on separate occasions.
10
No. 2020AP1213-CR
We addressed the term "occasions" within this criminal repeater
statute in two cases: State v. Wittrock, 119 Wis. 2d 664 and
State v. Hopkins, 168 Wis. 2d 802.
¶21 In the first case, Wittrock was sentenced as a
repeater after pleading guilty to misdemeanor charges and having
previously been convicted of three misdemeanors within the
preceding five years. Wittrock, 119 Wis. 2d at 665. Wittrock
had been convicted of two of his prior misdemeanors on the same
day during the same hearing, although the conduct that gave rise
to each conviction occurred on separate days and was
indisputably not part of the same course of conduct. Id. at
666. Wittrock argued that the phrase "convicted of a
misdemeanor on 3 separate occasions" required three separate
court appearances in order to qualify as a repeater. Id. The
court ultimately disagreed and affirmed Wittrock's sentence.
Id.¶22 The court in Wittrock determined that the word
"occasion," as used within § 939.62, was ambiguous, and
defined the plain meaning of "occasion" as "happening,
incident." Id. at 670-71 (quoting Webster's New Collegiate
Dictionary 794 (1977)). Then, with little analysis of the
surrounding words of the statute, the court held that the term
is ambiguous in the context of the repeater statute because the
"incident" referred to could be either the "incident" of the
commission of the crime or the "incident" of conviction. Id.
Determining the language to be ambiguous, the court then looked
to legislative intent——and particularly the legislative history
11
No. 2020AP1213-CR
and purpose of the repeater statute——as was an accepted approach
to statutory interpretation at the time.6 Id. at 671. The court
turned to a law review article which recapped the author's
involvement on the advisory committee which worked on the 1949
revisions to the criminal code, including relevant revisions to
the criminal repeater statute. Id. at 671-73 (referencing
William A. Platz, The 1949 Revision of the Wisconsin Code of
Criminal Procedure, 1950 Wis. L. Rev. 28). The court also
reviewed the 1949 committee comment on the repeater statute.
Id. at 673. The court concluded that both sources reflected the
committee's intent to shift focus from prior sentences onto
prior crimes and to focus on the quantity of crimes rather than
the time of conviction. Id. at 673-74.
¶23 Finally, the court determined that the purpose of
repeater statutes, "[r]egardless of the particular phraseology,"
"is to serve as a warning to first offenders. Id. at 675. The
infliction of more severe punishment for a repeater is based
upon his persistent violation of the law after conviction for
previous infractions." Id. (quoting State v. Midell, 40 Wis. 2d
516, 527, 162 N.W.2d 54 (1968)). The court determined that the
legislative history and purpose of the statute were not
consistent with a reading of the term "occasion" which referred
to the timing of the conviction. Id. at 673-74. As a result,
6We have since clarified that, "[j]udicial deference to the
policy choices enacted into law by the legislature requires that
statutory interpretation focus primarily on the language of the
statute." See State ex rel. Kalal v. Cir. Ct. for Dane Cnty.,
2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110.
12
No. 2020AP1213-CR
the court concluded that convictions for misdemeanors within the
same hearing, but based on criminal activity that occurred
independent of each other and on separate days, were convictions
on "separate occasions." Id. The court explicitly left open
the question of whether convictions based on criminal activity
committed as part of the same course of conduct constitute
convictions on "separate occasions." Id. at 668.
¶24 In Hopkins, the court addressed the question left open
in Wittrock: whether multiple misdemeanors committed within the
same course of conduct constituted convictions on "separate
occasions" under the repeater statute. Hopkins, 168 Wis. 2d at
805-08. The court held that the ambiguous term "occasion"
referred to the number of the defendant's convictions and not to
the criminal acts giving rise to such convictions. Id. at 805,
807-10. The court in Hopkins again relied heavily on the
underlying purpose of the repeater statute. Id. at 811-13.
¶25 While the operation of the criminal repeater statute
appears to be settled,7 it does not follow that such operation is
The legislature made changes to Wis. Stat. § 939.62 at
7
various times since this court's decisions in Wittrock and
Hopkins and did not make any changes to the "separate occasions"
language, indicating possible legislative acquiescence in the
court's interpretation within the context of that statute. See
Estate of Miller v. Storey, 2017 WI 99, ¶51, 378 Wis. 2d 358,
903 N.W.2d 759 ("legislative inaction in the wake of judicial
construction of a statute indicates legislative acquiescence").
The concurrence/dissent misfires when it attacks the
majority for pointing out inconsistencies in the Wittrock and
Hopkins decisions without overruling those cases.
Concurrence/dissent, ¶85. We reiterate that this case is not
about whether to overrule Wittrock and Hopkins but whether we
13
No. 2020AP1213-CR
necessarily transposed onto the sex offender registration
statute. Prior interpretation by this court may be helpful in a
plain meaning analysis when the court has defined a legal term
of art or addressed the context of a closely related statute.8
See Kalal, 271 Wis. 2d 633, ¶¶45-46. This is sometimes referred
to as the "prior-construction" canon of statutory
interpretation. See Lightfoot v. Cendant Mortg. Corp., 580 U.S.
82, 95-96 (2017). However, the court's decisions in Wittrock
and Hopkins do not dictate our decision in this case for three
reasons: (1) Wittrock and Hopkins were not merely defining the
term "occasion" but analyzing what the term referred to in the
unique context of the criminal repeater statute; (2) neither
"occasions" nor "separate occasions" are terms of art; and (3)
Wisconsin's sex offender registration statute, Wis. Stat.
§ 301.45, and criminal repeater statute, § 939.62, are not so
closely related as to dictate a singular usage of the term. We
more fully explain each of these reasons in turn.
a. Context and Legislative History
¶26 The court in Wittrock was not grappling with the plain
meaning of the term "occasion" in isolation. Rather the court
should extend those cases' interpretation of Wis. Stat. § 939.62to a different statute.
8 The concurrence/dissent confusingly claims that the
majority opinion "holds, at least implicitly, that prior
construction is irrelevant to plain meaning."
Concurrence/dissent, ¶56. On the contrary, we explicitly
recognize that prior-construction is relevant to plain meaning
in certain circumstances.
14
No. 2020AP1213-CR
was determining what the term "occasion" meant within the
context of the criminal repeater statute. The court's
dictionary definition of the term "occasion"——"happening,
incident"——is consistent with the definition we present above.
Wittrock, 119 Wis. 2d at 670 (quoting Webster's New Collegiate
Dictionary 794 (1977)). The bulk of Wittrock's analysis
attempts to discern whether "occasion" refers to the incident of
the commission of the crime or the incident of conviction. Of
import, any analysis in Wittrock where we tried to resolve the
ambiguity of "occasion" is irrelevant here since we recognize
that "occasion" in Wis. Stat. § 301.45(5)(b)1. unambiguously
refers to the incident of conviction.
¶27 Additionally, the Wittrock analysis focuses on the
legislative history and purpose of the criminal repeater
statute, which is entirely different than the legislative
history and purpose of the sex offender registration statute.
As to the sex offender registration statute's legislative
history, the State argues that there are three documents
relevant to our analysis: (1) a DOC report in the statute's
drafting file, (2) a DOC fiscal estimate for the statute, and
(3) a Legislative Council memorandum discussing a related, but
different statute. We decline to give much weight to these
sources. These three sources are less persuasive than the
Wittrock sources——a law review article penned by a drafter of
the statute and a committee comment——because they differ in
15
No. 2020AP1213-CR
form, authorship, and clarity with which they demonstrate
legislative intent.9 We consider each source in turn.
¶28 First, the DOC report is not a reliable indicator of
legislative intent. Legislators are not bound to follow, or
even consider, a DOC report when drafting and enacting a
statute. Additionally, the DOC report does not comment on the
meaning of "separate occasions."
¶29 The other two pieces of legislative history are
equally unenlightening. A DOC fiscal estimate references "two
or more separate sexual assault convictions" and a Legislative
Council memorandum references a situation where a person "has
committed crimes . . . on two or more occasions." DOC, Fiscal
Estimate – 1995 Session for 1995 Wis. S.B. 182 (May 25, 1995);
Wis. Legis. Council Staff, Information Memorandum 96-18 3 (July
12, 1996). Not only do these two sources appear to work against
each other, with one source referencing convictions and the
other the commission of crimes, but more importantly, neither
source reflects or addresses the language actually implemented
in Wis. Stat. § 301.45(5)(b)1. At bottom, these three sources
fail to illuminate our reading of the statute.
Perhaps recognizing the significant differences between
9
the three sources in this case and the sources in Wittrock, the
concurrence/dissent contends that one might draw reasonable
inferences from the three proffered sources that are "analogous"
to the inferences drawn by this court in Wittrock.
Concurrence/dissent, ¶101. The concurrence/dissent argues we
should be bound to the history-based interpretation in Wittrock
because of those analogous inferences. This proposition runs
contrary to this court's customary approach to statutory
interpretation.
16
No. 2020AP1213-CR
¶30 In summary, the portions of Wittrock——and by
extension, Hopkins——that are inconsistent with our analysis are
all based on considerations that are irrelevant or inapplicable
in the current context. Although the legislative history in
Wittrock may have clarified the intent of the legislature
regarding the criminal repeater statute, the legislative history
of Wis. Stat. § 301.45(5)(b)1. offers no analogous level of
clarity.
b. Terms Of Art
¶31 Neither Wittrock nor Hopkins treated the term
"occasion" or the phrase "separate occasions" as a legal term of
art. A phrase can at times take on a specialized meaning that
differs from its common, ordinary meaning, becoming a term of
art.10 If a phrase has taken on a specialized legal meaning,
then this court should attempt to discern that specialized
meaning, and prior judicial interpretations of the same phrase
can be a helpful tool in discerning that specialized meaning.11
A term of art is "[a] word or phrase having a specific,
10
precise meaning in a given specialty, apart from its general
meaning in ordinary contexts." Term of Art, Black's Law
Dictionary (11th ed. 2019).
See Wis. Stat. § 990.01(1) ("All words and phrases shall
11
be construed according to common and approved usage; but
technical words and phrases and others that have a peculiar
meaning in the law shall be construed according to such
meaning."); see also Mueller v. TL90108, LLC, 2020 WI 7, ¶19,
390 Wis. 2d 34, 938 N.W.2d 566 ("The statutes themselves do not
define the relevant terms. However, the [relevant] statutory
terms . . . are technical phrases with specific and distinct
meaning in our common law, and we therefore give them their
accepted legal meaning.").
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No. 2020AP1213-CR
The Wittrock and Hopkins courts considered the word "occasion"
ambiguous in the context of the repeater statute and sought to
define the ordinary meaning within that context, primarily by
looking to the legislative history and purpose of the statute.
We likewise believe the phrase "separate occasions" is not a
legal term of art, but should be given its plain, ordinary
meaning. Because the phrase is not a legal term of art, it is
of limited value for us to look to a case that defines the same
phrase but does so under a different statute and pays particular
attention to the legislative history and purpose of that
statute.12
c. Closely Related Statutes
¶32 Finally, Wis. Stat. § 301.45(5)(b)1. is not so closely
related to § 939.62(2) that the court must interpret all words
and phrases in a singular way to avoid confusion or absurd
results. This represents the primary point of contention
between our reading of the statute and the
concurrence/dissent's. Both the State and the
concurrence/dissent rely on the prior-construction canon to say
The concurrence/dissent appears to claim that any word or
12
phrase that has been authoritatively construed in a particular
context becomes a legal term of art that must forevermore be
given that construction. Concurrence/dissent, ¶67. This court
has never defined the concept of a legal term of art that
broadly and doing so would severely limit the legislature's
ability to use common language in its common and ordinary sense.
Putting that aside, we emphasize that the definition of
"occasion" that we employ is consistent with the definition used
in Wittrock and Hopkins. Neither case offers a separate
technical definition for the phrase "separate occasions" that we
could apply in this case.
18
No. 2020AP1213-CR
that the interpretations of Wittrock and Hopkins should be
incorporated into Wis. Stat. § 301.45(5)(b)1. The prior-
construction canon is an articulation of the principle that when
a particular phrase has been given authoritative construction by
the courts, it is to be understood according to that
construction. Although this principle is at its strongest when
the court is interpreting a reenactment of the same statute, it
has also been applied to interpretations of related statutes——
although, as the concurrence/dissent concedes, "with less
force." See concurrence/dissent, ¶66 (quoting Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
322).13
¶33 We begin by acknowledging that members of this
majority have previously voiced their position that canons of
construction are tools in a toolbox of statutory interpretation
and should not be seen as inflexible rules of construction that
override the plain meaning of otherwise unambiguous statutes.14
This position hardly "degrades" or "demeans" the canons, as
supporters of their use have spoken similarly. See
concurrence/dissent, ¶¶80, 82; See also, e.g., Neil M. Gorsuch,
Lecture, Of Lions and Bears, Judges and Legislators, and the
Despite this concession, the concurrence/dissent charges
13
ahead, applying the canon with full force in this case. In
fact, that opinion relies so heavily on this single canon that
it fails to engage in a plain meaning analysis of the words of
the text beyond application of the canon.
See James v. Heinrich, 2021 WI 58, ¶76, 397 Wis. 2d 517,
14
960 N.W.2d 350 (Dallet, J., dissenting).
19
No. 2020AP1213-CR
Legacy of Justice Scalia, 66 Case W. Res. L. Rev. 905, 917
(2016) (referring to the use of canons as "judges pull[ing] from
the same toolbox").
¶34 In this case, however, we need not debate the general
usefulness of canons of construction because even viewed as the
concurrence/dissent presents, the prior-construction canon does
not aid in our analysis here for two reasons. First, no single
canon of construction will always take precedence over all other
principles of construction.15 And second, the canon does not
govern in this case. Absent the use of a "term of art," the
prior-construction canon only governs if the different statutes
at issue are "closely related." On this point everyone appears
to agree. See concurrence/dissent, ¶¶94, 107.
¶35 "Statutes are closely related when they are in the
same chapter, reference one another, or use similar terms."
State v. Reyes Fuerte, 2017 WI 104, ¶27, 378 Wis. 2d 504, 904
N.W.2d 773. Here the two statutes do not fit the definition of
closely related. It is undeniable that the two statutes reside
in different chapters governing different subject matter. There
are no cross references between § 301.45 and § 939.62, and the
statutes do not rely on each other or otherwise interact.
In fact, there is a canon for that——the "Principle of
15
Interrelating Canons," which suggests that "[n]o canon of
interpretation is absolute. Each may be overcome by the
strength of differing principles that point in other
directions." See Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 59.
20
No. 2020AP1213-CR
¶36 The State insists that since both statutes reference
convictions on "separate occasions," they use "similar terms"
and are thus closely related.16 We disagree because the
legislature's limited use of general terms is hardly enough on
its own to make the statutes closely related.
¶37 As an illustrative example, contrast this case with
the related statutes in Bragdon v. Abbott, in which The United
States Supreme Court applied the prior-construction canon. 524
U.S. 624 (1998). Bragdon interpreted the provision of the
Americans with Disabilities Act (ADA) which defines disability
as "a physical or mental impairment that substantially limits
one or more of the major life activities of such individual."
See id. at 630. In interpreting that definition, the Court
looked to how courts and agencies had applied the definition of
"handicapped individual" in the Rehabilitation Act of 1973. Id.
at 631. The court noted that the entire definition in the ADA
"is drawn almost verbatim" from the Rehabilitation Act of 1973.
Id. Furthermore, the ADA included a statutory provision
directing that "nothing in this chapter shall be construed to
apply a lesser standard than the standards applied under Title V
The concurrence/dissent also says that "the justification
16
for applying the canon seems particularly strong when the phrase
at issue seldom appears in the Wisconsin statutes."
Concurrence/dissent, ¶94. This statement appears entirely
unsupported by any authority on the prior-construction canon and
the opinion fails to explain why this would be so.
21
No. 2020AP1213-CR
of the Rehabilitation Act of 1973" which created a direct link
between those Acts.17 Id. at 631-32.
¶38 There is no such direct link between the sex offender
registration statute and the criminal repeater statute. Each
uses the phrase "separate occasions," but the surrounding
structure and language of each statute is far from identical.
For example, Wis. Stat. § 939.62(2) looks to "the 5-year period
immediately preceding the commission of the crime for which the
actor presently is being sentenced," while § 301.45(5)(b)1. does
not include a time period and does not refer separately to the
current conviction, but simply looks to whether a person "has,
on two or more separate occasions, been convicted."18 Unlike the
ADA in Bragdon, which not only included a nearly identical
definition from the Rehabilitation Act, but also directly
referenced that same act, nothing about the language used in
Wis. Stat. § 301.45(5)(b)1. indicates that the legislature
looked to or copied Wis. Stat. § 939.62(2).
See also United States v. Davis, 588 U.S. __, 139 S. Ct.
172319, 2329 (2019) where the Court applied a consistent meaning
to terms used in two statute's definitions of "crime of
violence." Both statutes were within the criminal code and the
definitions had "almost identical" language. Id. The
referenced definitions shared over 25 identical consecutive
words.
Wisconsin Stat. § 939.62(2) also uses the language "which
18
convictions remain of record and unreversed," while
§ 301.45(5)(b)1. uses different language to accomplish a similar
end, and provides that "[a] conviction or finding of not guilty
or not responsible by reason of mental disease or defect that
has been reversed, set aside or vacated is not a conviction or
finding for purposes of determining . . . whether a person has
been convicted on 2 or more separate occasions."
22
No. 2020AP1213-CR
¶39 The primary link between the two statutes is their
practical application, namely that both statutes may be relied
upon during the sentencing of a criminal defendant. And
although the phrase "separate occasions" will be applied
differently depending on whether the defendant is being
sentenced as a criminal repeater under § 939.62(2) or is being
required to comply with registration requirements under
§ 301.45(5)(b)1., any inconsistency or confusion is outweighed
by the clear and plain meaning of § 301.45(5)(b)1.
¶40 Even in its strongest form, the prior-construction
canon merely creates a presumption that the legislature intended
to incorporate the court's prior interpretation of a word or
phrase in closely related statutes. But that presumption is not
meant to counteract our oft-quoted principle that "statutory
language is given its common, ordinary, and accepted meaning"
and "if the meaning of the statute is plain, we ordinarily stop
the inquiry." See State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.19 The
presumption is meant to add clarity, not sow confusion. In
other words, fundamentally, we must presume that the legislature
means what it says. See Heritage Farms, Inc. v. Markel Ins.
Co., 2009 WI 27. ¶14 n.9, 316 Wis. 2d 47, 767 N.W.2d 652.
One might also find an articulation of this principle in
19
the "ordinary-meaning canon," which Scalia and Garner
characterize as "the most fundamental semantic rule of
interpretation." See Scalia & Garner, Reading Law at 69.
23
No. 2020AP1213-CR
¶41 Given that Wis. Stat. § 301.45(5)(b)1. does not
require Rector to comply with registration requirements for life
because he was convicted of five offenses all within a single
case and during the same hearing, and thus was not convicted on
"2 or more separate occasions," the circuit court did not err
when it required registration for only 15 years.
B. Rector's Crimes
¶42 Having explained our reasoning and dispensed with the
counter arguments, we should be done with our analysis.
However, before concluding, we are compelled to respond to the
concurrence/dissent's accusations charging that this opinion
omits the details of the images found in Rector's possession and
in doing so both "trivializes heinous crimes against children"
and ignores the statutory purpose of public protection. See
concurrence/dissent, ¶¶57, 107. Neither accusation holds water.
This opinion omits the details of the images not to trivialize
Rector's crimes but rather because the seriousness of Rector's
crimes is irrelevant to the question of statutory interpretation
before us. As to the statutory purpose, we attempt to honor
that purpose by deferring to the legislature's policy decisions
as expressed in the words of the statute.
¶43 In cases such as this, which involve serious criminal
conduct perpetrated against innocent and vulnerable victims,
attorneys and judges must balance the need for addressing the
facts of the case with the victim's interest in privacy,
sensitivity, and respect. Achieving this balance can be
challenging. Undoubtedly, there are cases where a description
24
No. 2020AP1213-CR
of an assault is relevant and significant to the question at
issue. Clearly, this is not that case. Here we are faced with
a straight-forward question of statutory interpretation. As
such, the details of the content of the images discovered in
Rector's possession are irrelevant. Instead, the only relevant
facts are the circumstances surrounding Rector's convictions, as
sufficiently detailed in this opinion.20
¶44 There is no disagreement in this case that Rector's
crimes were serious. The statutory language of Wis. Stat.
§ 301.45(5)(b)1., however, does not hinge on whether this court
concludes that Rector's crimes were serious. It is undisputable
that all sex offenses covered by the sex offender registration
statutory scheme are heinous in nature, thus necessitating the
use of the registry for the protection of the public. However,
within that scheme, the legislature, not this court, made policy
decisions regarding which offenders are categorically required
to comply with registration requirements for life and which are
required to comply for 15 years.21 Our job is to faithfully
interpret the words of the statute in order to discern the
Conversely, an example of a legal question that may
20
necessitate some description of the assaults is if we were asked
to determine if the content of the images constituted child
pornography. It is undisputed in this case that the images
constitute child pornography.
21In addition to requiring lifetime registration for those
convicted of a sex offense on two or more separate occasions,
Wis. Stat. § 301.45(5)(b)1m. also lists specific crimes for
which a single violation requires the offender to comply with
registration requirements for life. Possession of child
pornography could have been, but was not, included on that list.
25
No. 2020AP1213-CR
legislature's policy choice, not to impose our own policy
choices.
¶45 Nonetheless, our colleagues accuse this opinion of
endangering "some of the most vulnerable members of the public."
Concurrence/dissent, ¶99. That is simply not the case.
Importantly, nothing in this opinion undermines the ability of a
circuit court to order an offender to comply with registration
requirements for life, even if the offender is not otherwise
required by the statutes to register for longer than fifteen
years under Wis. Stat. § 301.45(5)(b)3. Said differently, this
opinion does not give any sex offender blanket protection from
lifetime registration.
¶46 In Rector's case, the State did not ask the circuit
court to order that Rector comply with registration requirements
for life under § 301.45(5)(b)3. The State only requested
lifetime registration under § 301.45(5)(b)1., and that is the
only legal question we address today. It is irresponsible to
suggest that we are endangering vulnerable members of the public
by narrowly addressing the legal issue before us.
C. Eligibility For The Earned Release Program
¶47 We now turn to Rector's appeal challenging the circuit
court's finding that Rector was ineligible to participate in the
ERP. We review the circuit court's sentencing decision to deny
a defendant participation in the ERP for an erroneous exercise
of discretion. Wis. Stat. § 973.01(3g) ("the court shall, as
part of the exercise of its sentencing discretion, decide
whether the person being sentenced is eligible or ineligible to
26
No. 2020AP1213-CR
participate in the earned release program."). A court has
erroneously exercised its discretion if it imposes sentence
"without the underpinnings of an explained judicial reasoning
process," State v. Loomis, 2016 WI 68, ¶30, 371 Wis. 2d 235, 881
N.W.2d 749 (quoting McCleary v. State, 49 Wis. 2d 263, 278, 182
N.W.2d 512 (1971)), or if it holds a "predisposition . . . so
specific or rigid so as to ignore the particular circumstances
of the individual offender." State v. Ogden, 199 Wis. 2d 566,
573, 544 N.W.2d 574 (1996).
¶48 Rector argues that the circuit court erroneously
exercised its discretion because it employed a "preconceived
policy of sentencing that is 'closed to individual mitigating
factors.'" Id. at 571 (quoting State v. Martin, 100
Wis. 2d 326, 327, 302 N.W.2d 58 (Ct. App. 1981)).
¶49 In Ogden, we remanded for resentencing because the
circuit court denied the defendant Huber release22 for child care
purposes based on an impermissible preconceived sentencing
policy. Id. at 572. The circuit court stated that it did not
allow Huber privileges for child care except in "extreme
circumstances" because "number one, it is all too often abused.
Somebody becomes real interested in a child only after they have
been sentenced to jail . . . ." Id. Thus, the circuit court in
Ogden not only espoused a preconceived sentencing policy, but
used generalized references to the likelihood of abuse and other
22Huber release grants leave privileges to county jail
prisoners for purposes such as employment, healthcare, attending
to family needs, and more. See Wis. Stat. § 303.08.
27
No. 2020AP1213-CR
defendants' past involvement with their children to justify its
decision rather than assessing the defendant's specific
relationship and involvement with her child and her likelihood
of abusing Huber privileges.
¶50 The record before us is distinguishable from Ogden.
In this case, the circuit court set forth a sentencing policy
that inherently relied on individualized factors——namely,
whether substance abuse goes "to the criminogenic factor that
caused the crime." The circuit court went on to explain: "So if
there's an operating while intoxicated case or maybe a domestic
violence case in which alcohol was used or in some way, shape[,]
or form the substance abuse was the reason for the crime." The
circuit court explicitly explained that it approves eligibility
for the ERP if substance abuse "was a reason for the crime" but
"[i]n this case it's a possession of child pornography." This
is sufficient to show that the circuit court was not "closed to
individual mitigating factors." Id. at 571. The court simply
found that Rector's individual mitigating factors did not
warrant eligibility in the ERP. The circuit court did not
erroneously exercise its discretion by denying Rector
eligibility for participation in the ERP. Because we affirm the
circuit court's decision on these grounds, we do not address the
circuit court's other grounds for denying eligibility.
III. CONCLUSION
¶51 We affirm the circuit court's order denying the
State's request to amend the JOC as Wis. Stat. § 301.45(5)(b)1.
does not require that Rector comply with registration
28
No. 2020AP1213-CR
requirements until his death. Rector's five convictions for
possession of child pornography were filed in a single case and
occurred during the same hearing. Consequently, the convictions
did not occur on separate occasions. We also affirm the circuit
court's order denying Rector's request to amend the JOC as the
circuit court did not erroneously exercise its discretion.
By the Court.—The order of the circuit court is affirmed.
29
No. 2020AP1213-CR.rgb
¶52 REBECCA GRASSL BRADLEY, J. (concurring in part,
dissenting in part).
Where once certain words in an Act of Parliament have
received a judicial construction in one of the
Superior Courts, and the Legislature has repeated them
without any alteration in a subsequent statute, I
conceive that the Legislature must be taken to have
used them according to the meaning which a Court of
competent jurisdiction has given to them.
Ex Parte Campbell, (1870) L.R. 5 Ch. App. 703, 706 (Eng.).
¶53 The primary issue in this case turns on the meaning of
the phrase "2 or more separate occasions." Under Wis. Stat.
§ 301.45(5)(b)1. (2019–20)1 ("the repeat sex offender statute"),
a person who has "been convicted" of "a sex offense" on "2 or
more separate occasions" must register as a sex offender for
life. Corey T. Rector was convicted of five sex offenses,
stemming from the same case. The State argues each conviction
constitutes a "separate occasion," requiring Rector to register
as a sex offender for life. Rector contends convictions entered
in close temporal proximity or in the same case are not
"separate occasions." The majority erroneously rejects the
State's construction in favor of Rector's.
¶54 The prior-construction canon readily resolves this
issue. See generally Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 322 (2012). Under this
canon, when judicial constructions "have settled the meaning of
an existing statutory provision, repetition of the same language
Unless otherwise noted, all subsequent references to the
1
Wisconsin Statutes are to the 2019–20 version.
1
No. 2020AP1213-CR.rgb
in a new statute" addressing similar subject matter
presumptively incorporates these constructions. See Bragdon v.
Abbott, 524 U.S. 624, 645 (1998) (citing Lorillard v. Pons, 434
U.S. 575, 580–81 (1978)). Shortly before the enactment of the
repeat sex offender statute, and in an analogous context, this
court held multiple convictions each constitute a "separate
occasion," even if the convictions occur in the same case or
stem from the same course of conduct. State v. Hopkins, 168
Wis. 2d 802, 805, 484 N.W.2d 549 (1992); see also State v.
Wittrock, 119 Wis. 2d 664, 666, 350 N.W.2d 647 (1984). This
background informs a reasonable person's understanding of the
language in the repeat sex offender statute. See State v.
Yakich, 2022 WI 8, ¶35, 400 Wis. 2d 549, 970 N.W.2d 12.
Applying the canon, this court should hold Rector was convicted
of "a sex offense" on "2 or more separate occasions"; therefore,
he is required to register as a sex offender for life. See Wis.
Stat. § 301.45(5)(b)1.
¶55 Application of the prior-construction canon is
supported by other indicators of meaning. Its application is
consistent with a statutorily defined purpose of the sex-
offender registry. See Wis. Stat. § 301.001 (explaining one
purpose of the registry is to protect the public); see also
Scalia & Garner, Reading Law, at 217 ("A . . . purpose
clause . . . is a permissible indicator of meaning."). Its
application is also consistent with this court's decision in
State ex rel. Kaminski v. Schwarz a few years after the
enactment of the repeat sex offender statute. See 2001 WI 94,
2
No. 2020AP1213-CR.rgb
¶33 n.8, 245 Wis. 2d 310, 630 N.W.2d 164. Additionally,
extrinsic sources confirm this plain-meaning analysis. See
James v. Heinrich, 2021 WI 58, ¶26, 397 Wis. 2d 517, 960
N.W.2d 350 (explaining extrinsic sources are sometimes
considered to confirm a plain-meaning analysis (citing State ex
rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶51, 271
Wis. 2d 633, 681 N.W.2d 110)).
¶56 The majority commits at least three errors that cause
it to incorrectly conclude the prior-construction canon is
inapplicable. First, the majority holds, at least implicitly,
that prior construction is irrelevant to plain meaning. Second,
the majority insinuates the canon's application is inapposite
because, in its view, the prior decisions on which the canon's
application is predicated were wrongly decided——although the
majority does not overrule them. Lastly, the majority suggests
the presence of trivial differences between two statutes
presents a compelling reason to disregard the canon. The
majority is wrong on each count. I respectfully concur in part
and dissent in part.2
I. BACKGROUND
¶57 The majority omits from its opinion a thorough
description of the facts, dismissing the heinous nature of
Rector's crimes as "irrelevant" and scrapping statutory purpose
from its purportedly plain meaning analysis. See majority op.,
The majority correctly concludes the circuit court did not
2
err in denying Rector's request to participate in the Earned
Release Program. Accordingly, I join paragraphs 47 through 50
of the majority opinion.
3
No. 2020AP1213-CR.rgb
¶¶42–43 (holding the seriousness of Rector's crimes is
"irrelevant"). Contrary to the majority's position, "[i]t
is . . . customary for any judicial opinion to relay the facts
of the case"——sometimes even when the relevance of particular
facts is debatable.3 Becker v. Dane County, 2022 WI 63, ¶89, 403
Wis. 2d 424, 977 N.W.2d 390 (Rebecca Grassl Bradley, J.,
dissenting). Rector's crimes illustrate why the State's
3 Relevancy is often in the eye of the beholder. In Doubek
v. Kaul, we considered whether Daniel Doubek's misdemeanor
conviction for disorderly conduct constituted a crime of
domestic violence, thereby prohibiting him from owning a
firearm. 2022 WI 31, 401 Wis. 2d 575, 973 N.W.2d 756. In a
unanimous opinion, this court concluded the crime did not, as a
matter of law, constitute domestic violence. Id., ¶1. Justice
Jill J. Karofsky opened her concurring opinion with the
following description of the crime:
Late in the evening on August 21, 1993, Doubek's
estranged wife was in her home alone with their four-
year-old daughter. While talking with her sister on
the phone, the line suddenly went dead. Minutes
later, Doubek broke through the front door, punching a
hole in the glass so he could unlock it from the
inside. Without his wife's permission, Doubek entered
her home armed with a 2x4 slab of lumber. Raising the
2x4 above his head, he told his wife she "was dead."
She asked her husband to leave and then went to the
door, yelling out to her neighbors for help. Doubek
threatened that if she did not move away from the
door, he would "let her have it." The two eventually
went outside to avoid waking their young daughter.
Once outside, Doubek told his wife he did not care
what would happen to him if he killed her, even if it
meant he lost custody of their daughter. About 30
minutes later, Doubek left.
Id., ¶23 (Karofsky, J., concurring). Notably, Justice Karofsky
relayed this detailed description of Doubek's crime despite the
impossibility of preserving the victims' anonymity. Doubek's
estranged wife and daughter were identified publicly. Justice
Karofsky acknowledged the majority opinion was "legally
correct," rendering her entire opinion unnecessary. Id., ¶25.
4
No. 2020AP1213-CR.rgb
proffered interpretation is consistent with the statutory
purpose of protecting the public——particularly children. See
infra Section III.A.
¶58 In 2018, the National Center for Missing and Exploited
Children reported to the Wisconsin Department of Justice that
Rector, a middle-aged man, may possess child pornography.
Police executed a search warrant at Rector's home, and, as the
majority notes, "[t]he State . . . seiz[ed] over 1,000 offending
images and videos in Rector's possession."4 Majority op., ¶2.
The State contextualizes Rector's crimes in its opening brief:
[T]en videos contained graphic and disturbing
recordings of child pornography with multiple sexual
assaults of children, including: (1) an adult male
having anal intercourse with a prepubescent female;
(2) an adult male having sexual intercourse with a
prepubescent female; (3) an adult male appearing to
perform oral sex on a female toddler; (4) an adult
male performing oral sex on a prepubescent female's
anus and the child performing oral sex on the adult;
(5) a bondage recording of a naked prepubescent female
performing oral sex on an adult male with the child
bound in rope and wearing a leather collar; (6) a
prepubescent female performing oral sex on an adult
male with the child spitting out ejaculation fluid;
(7) a prepubescent female performing oral sex on an
adult male with the adult ejaculating onto the child's
mouth and chin; (8) a nude prepubescent female rubbing
her vagina with a toothbrush before inserting it in
her anus; (9) a prepubescent female child masturbating
her vaginal and anus area; and (10) a pubescent female
exposing her breast, vagina, and anus to the camera.
Rector himself——not his attorney——told the circuit court he
"wasn't the one who was violating" the dignity of the children
4 Given its definition of relevancy, it is unclear why the
majority notes the State "seiz[ed] over 1,000 offending images
and videos." Rector was charged with ten offenses and convicted
of five. See majority op., ¶2 & n.2.
5
No. 2020AP1213-CR.rgb
in these videos because he was not the one performing the sexual
assaults.5 Rector acknowledged merely that he
"possibly . . . re-victimized" them "even though they don't
know" that he possessed the videos.
¶59 The State charged Rector with ten counts of possession
of child pornography contrary to Wis. Stat. §§ 948.12(1m),
(3)(a), and 939.50(3)(d) (2017–18). As the majority notes, the
parties agree that possession of child pornography is a "sex
offense" for the purpose of sex-offender registration. Majority
op., ¶11 n.4 (quoting Wis. Stat. § 301.45(1d)(b) (2021–22)).
Pursuant to a plea agreement, Rector pled guilty to five counts,
and the other five counts were dismissed. The State agreed not
to issue additional charges related to materials discovered
during the same search and to dismiss a separate, unrelated
matter. During the plea colloquy, Rector was asked for his plea
to each count individually. After Rector said "guilty" for the
fifth time, the circuit court accepted his pleas, found Rector
"guilty . . . in Counts 1 through 5," and entered the judgment
of conviction.
¶60 At the sentencing hearing, the circuit court asked
whether sex-offender registration was required. The prosecutor
was unsure, so the court relied on a pre-sentence investigation
report, which recommended registration for 15 years. The court
accepted this recommendation. The court also sentenced Rector
The Honorable Jason A. Rossell, Kenosha County Circuit
5
Court, presided.
6
No. 2020AP1213-CR.rgb
to eight years of initial confinement and ten years of extended
supervision on each count to be served concurrently.
¶61 The Department of Corrections (DOC) later moved the
circuit court to amend the judgment of conviction to require
Rector to register as a sex offender for life. The DOC
explained lifetime registration was required under the repeat
sex offender statute because Rector was convicted of multiple
sex offenses and each conviction constituted a separate
occasion. The DOC referenced a 2017 Attorney General opinion,
in which the Attorney General construed the phrase "on 2 or more
separate occasions" in Wis. Stat. § 301.46(2m)(am) (2017–18), a
closely related statute enacted at the same time as the repeat
sex offender statute. See Opinion of Wis. Att'y Gen. to Jon E.
Litscher, Sec'y of the Wis. DOC, OAG-02-17 (Sept. 1, 2017).
Section 301.46(2m)(am) addresses circumstances under which a
government agency is required to notify local law enforcement
upon the release of a sex offender into the community. The
Attorney General concluded the number of "separate occasions" is
"the number of convictions, including multiple convictions
imposed at the same time and based on the same complaint." Id.,
¶2.
¶62 Rector objected, and the circuit court denied DOC's
motion, reasoning Rector's sex offense convictions did not occur
on different occasions. The court concluded the phrase
"separate occasions" in the repeat sex offender statute is
ambiguous. It then performed a "fresh analysis" to resolve the
7
No. 2020AP1213-CR.rgb
ambiguity, rather than examining how this court has construed
that phrase in an analogous statute.
¶63 Rector appealed the circuit court's decision denying
him eligibility for an Earned Release Program, and the State
cross-appealed on the sex-offender registration issue. The
court of appeals certified the appeals to this court. The court
of appeals noted this court held, in a similar context, "the
phrase 'separate occasions' . . . meant each separate conviction
even when multiple convictions occurred in the same proceeding,
at the same time[.]" State v. Rector, No. 2020AP1213-CR,
unpublished certification, at 2 (Wis. Ct. App. Nov. 24, 2021).
It emphasized that if this court were to deny certification, the
court of appeals would be "tasked with defining the same phrase"
that this court "already defined" in two of its decisions. Id.
This court accepted certification.
II. STANDARD OF REVIEW
¶64 The State's cross-appeal requires this court to
construe the repeat sex offender statute. Statutory
construction is a question of law subject to this court's
independent review. See State v. McKellips, 2016 WI 51, ¶29,
369 Wis. 2d 437, 881 N.W.2d 258 (citing Shannon E. T. v. Alicia
M. V.M., 2007 WI 29, ¶31, 299 Wis. 2d 601, 728 N.W.2d 636).
III. ANALYSIS
A. Application of the Prior-Construction Canon Requires Rector
to Register as a Sex Offender for Life.
¶65 The repeat sex offender statute provides:
(b) A person who is covered under sub. (1g) (a), (b),
(bm), (c), (d), (dd), (dp) or (e) shall continue to
8
No. 2020AP1213-CR.rgb
comply with the requirements of this section until
his or her death if any of the following applies:
1. The person has, on 2 or more separate
occasions, been convicted or found not guilty
or not responsible by reason of mental disease
or defect for a sex offense, or for a
violation, or the solicitation, conspiracy or
attempt to commit a violation, of a federal
law, a military law, a tribal law or a law of
any state that is comparable to a sex offense.
A conviction or finding of not guilty or not
responsible by reason of mental disease or
defect that has been reversed, set aside or
vacated is not a conviction or finding for
purposes of determining under this subdivision
whether a person has been convicted on 2 or
more separate occasions.
Wis. Stat. § 301.45(5)(b)1. (emphasis added).
¶66 The State's argument is grounded in the prior-
construction canon, which holds that "[i]f a . . . phrase has
been authoritatively interpreted by the highest court in a
jurisdiction, . . . a later version of that act perpetuating the
wording is presumed to carry forward that interpretation."
Scalia & Garner, Reading Law, at 322. Even more broadly, "the
canon . . . applies (though with less force) to interpretations
of the same wording in related statutes." Id.; see also Shambie
Singer, 3A Sutherland Statutes & Statutory Construction § 67:3
n.52 (8th ed. last updated Nov. 2022) ("The prior construction
canon of statutory interpretation teaches that if courts have
settled the meaning of an existing provision, the enactment of a
new provision that mirrors the existing statutory text
indicates, as a general matter, the new provision has that same
meaning." (citing Lightfoot v. Cendant Mortg. Corp., 137
S. Ct. 553 (2017))); Bryan A. Garner et al., The Law of Judicial
9
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Precedent 346 (2016) (explaining "when a legislature
incorporates provisions of an older law into a new law" after
the older law has been construed, the new law presumptively
receives the same construction). As the United State Supreme
Court stated: "In adopting the language used in the earlier
act, Congress 'must be considered to have adopted also the
construction given by this Court to such language, and made it a
part of the enactment.'" Shapiro v. United States, 335 U.S. 1,
16 (1948) (quoting Hecht v. Malley, 265 U.S. 144, 153 (1924)).
¶67 The prior-construction canon stems from the
precedential nature of common law jurisprudence: once a phrase
has been authoritatively construed in a particular context, it
acquires a particular meaning in a "technical legal sense"——even
if the phrase has a different meaning in common parlance.
Scalia & Garner, Reading Law, at 324. For example, the word
"person" in common parlance means a "human being," but in a
legal document, it likely also "denotes a corporation" or "other
entity[.]" Id. at 73. Contrary to the majority's view, a
phrase does not have to be a "legal term of art" prior to its
initial construction——it becomes one through its construction.
See, e.g., majority op., ¶25 (citing Kalal, 271 Wis. 2d 633,
¶¶45–46); see also id., ¶31. "The bar is unquestionably
justified in relying on a decision (even a single decision) of
the jurisdiction's highest court regarding the meaning of a
certain word or phrase that is repeated in a later statute."
Scalia & Garner, Reading Law, at 325. Unfortunately, "[c]ourts
as well as advocates have been known to overlook technical
10
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senses of ordinary words——senses that might bear directly on
their decisions." Id. at 74. The majority opinion presents a
prime example.
¶68 The State discusses a different basis for the prior-
construction canon: reasonable people "presume that the
legislature acts with full knowledge of existing statutes and
how the courts have interpreted them." Mallow v. Angove, 148
Wis. 2d 324, 330, 434 N.W.2d 839 (Ct. App. 1988) (citing C.L. v.
Edson, 140 Wis. 2d 168, 181, 409 N.W.2d 417 (Ct. App. 1987)).
Although this "fanciful presumption of legislative knowledge,"6
is not the soundest basis for the canon, this court has long
invoked it:
All statutes are presumed to be enacted by the
legislature with full knowledge of the existing
condition of the law and with reference to
it, . . . they are therefore to be construed in
connection with and in harmony with the existing law,
and as a part of a general and uniform system of
jurisprudence, that is, they are to be construed with
a reference to the whole system of law of which they
form a part.
Wis. Carry, Inc. v. City of Madison, 2017 WI 19, ¶62 n.44, 373
Wis. 2d 543, 892 N.W.2d 233 (quoting Town of Madison v. City of
Madison, 269 Wis. 609, 614, 70 N.W.2d 249 (1955)) (ellipsis in
the original).
¶69 The practical implications of the prior-construction
canon are the same, at least in this case, regardless of the
rationale for the canon: "the meaning and effect of statutes
are to be determined in connection, not only with the common
6 Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 324 (2012).
11
No. 2020AP1213-CR.rgb
law, . . . and the constitution, but also with reference to
other statutes . . . and the decisions of the courts." Town of
Madison, 269 Wis. at 614 (quoting 82 C.J.S. Statutes § 362)
(ellipses in the original).
¶70 The State notes the phrase at issue, "2 or more
separate occasions," is materially identical to a phrase
appearing in another statute, Wis. Stat. § 939.62 (1991–92)
("the repeat offender statute"). That statute enhanced the
penalty for "repeaters." In relevant part, it defined a
repeater as a person "convicted of a misdemeanor on 3 separate
occasions" during the 5-year period immediately preceding the
commission of the crime for which the person was presently being
sentenced. § 939.62(2) (1991–92) (emphasis added).
¶71 In 1984 and again in 1992, this court construed the
phrase "3 separate occasions" in the repeat offender statute.
In State v. Wittrock, the defendant was convicted of disorderly
conduct in 1977. 119 Wis. 2d at 666. In 1980, he was convicted
of two counts of disorderly conduct in one case, stemming from
separate events. Id. In 1981, he was charged with various
crimes. Id. at 665. The issue was whether the two disorderly
conduct convictions from the 1980 case constituted separate
occasions, even though the convictions arose from one case. Id.at 666–67.
¶72 The arguments in Wittrock mirrored the arguments
advanced in this case. The State argued each conviction
constituted a separate occasion. Id. at 667. In contrast, the
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defendant argued "3 separate occasions" meant three separate
court appearances. Id.¶73 This court deemed "separate occasions" ambiguous,
consulted legislative history, and considered public policy
implications. Id. at 671–75. The majority in this case does
not reconcile its holding that the phrase "separate occasions"
is plain with this court's previous holding in Wittrock that the
phrase is ambiguous. At a minimum, the phrase is also ambiguous
in the repeat sex offender statute.
¶74 After declaring "separate occasions" ambiguous, this
court held each disorderly conduct conviction constituted a
separate occasion. Id. at 674. It explained the statute
focuses on the "quantity of crimes," not the "time of
conviction." Id. Accordingly, the disorderly conduct
convictions were separate occasions even though they were
adjudicated in the same case.7 Notably, this court held open
7 The majority suggests this court's consideration of
"legislative intent" in Wittrock is indicative of the "accepted
approach to statutory interpretation at the time." Majority
op., ¶22. It cites no authority for this proposition, but it
does state in a footnote, "[w]e have since clarified that,
'[j]udicial deference to the policy choices enacted into law by
the legislature requires that statutory interpretation focus
primarily on the language of the statute.'" Id., ¶22 n.6
(quoting State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004
WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110) (second
modification in the original).
Reality is more nuanced. At the time Wittrock was decided,
"ascertainment of legislative intent" was "the frequently-stated
goal of statutory interpretation," but "our cases generally
adhere[d] to a methodology that relie[d] primarily on intrinsic
sources of statutory meaning and confine[d] resort to extrinsic
sources of legislative intent to cases in which the statutory
language [wa]s ambiguous." Kalal, 271 Wis. 2d 633, ¶43
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No. 2020AP1213-CR.rgb
whether convictions for crimes constituting a single course of
conduct qualify as separate occasions. Id. at 668.
¶75 In State v. Hopkins, the defendant argued he was not a
repeater because the conduct underlying two of his three prior
convictions stemmed from events occurring on the same day. 168
Wis. 2d at 807. Specifically, the defendant was arrested for
possession of cocaine and then gave officers a false name. Id.He was convicted of both possession of cocaine and obstructing
an officer. Id. Following reasoning similar to Wittrock's,
this court held the defendant was a repeater because "[t]he
'occasion' referred to in the statute is the occasion of
conviction for each of the three crimes. Thus, all that is
required by the statute is that a defendant be convicted of
three misdemeanors within the five-year period." Id. at 805.
(citations omitted). Additionally, the test for ambiguity
employed in Wittrock is effectively the same test this court
currently employs. Compare id., ¶47 ("The test for ambiguity
generally keeps the focus on the statutory language: a statute
is ambiguous if it is capable of being understood by reasonably
well-informed persons in two or more senses." (citations
omitted)), with State v. Wittrock, 119 Wis. 2d 664, 669–70, 350
N.W.2d 647 (1984) ("This court has often stated that the
threshold question to be addressed by this court when construing
a statute is whether the statutory term is ambiguous. A
statutory term is deemed ambiguous if reasonable persons could
disagree as to its meaning. However, whenever a case such as
this reaches the court, it naturally follows that the parties
will obviously disagree as to the term's meaning. The court,
then, will look to the language of the statute itself to
determine whether well-informed persons should become confused
as to a term's meaning. Primary recourse is to statutory
language itself. When this court looks at the language utilized
in . . . [the repeat offender statute] the statute must be
interpreted on the basis of the plain meaning of its terms."
(citations omitted)).
14
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Accordingly, "each conviction for a misdemeanor constitutes a
separate occasion[.]" Id. This court emphasized that "it is
the number of convictions that is important rather than when the
crimes were committed."8 Id.¶76 The State argues Wittrock and Hopkins construed
"separate occasions" to have a particular meaning, and
reasonable people understand the repetition of that phrase in
related and subsequently enacted statutes to bear the same
8 In Hopkins, this court rejected a surplusage argument
nearly identical to the surplusage rationale the majority
adopts. See majority op., ¶¶11, 19. As this court explained:
[The defendant] next contends that this court is bound
by his interpretation of the statute by [the rule
that] . . . [s]tatutes should be construed so that
effect is given to each word . . . . [The
defendant's] argument . . . is that a finding that a
person can be a repeater based on two or more
misdemeanors arising out of a single course of conduct
renders surplusage the phrase "on 3 separate
occasions." [The defendant] . . . maintains that if
the legislature had intended that the number of prior
convictions would define a repeater, its use of the
phrase "on 3 separate occasions" was unnecessary. The
legislature could have merely said "convicted of 3
misdemeanors."
. . . .
[W]e disagree that our interpretation fails to give
effect to every word in the statute. In this opinion,
we have concluded that each entry of conviction
against a defendant constitutes a separate occasion
for purposes of the repeat offender statute. Thus,
contrary to . . . [the defendant's] assertions, our
interpretation of the statute gives meaning to the
phrase "on 3 separate occasions."
State v. Hopkins, 168 Wis. 2d 802, 813–14, 484 N.W.2d 549(1992). The majority does not reconcile its surplusage
rationale with Hopkins.
15
No. 2020AP1213-CR.rgb
meaning. Wittrock and Hopkins therefore collectively inform how
a reasonable person interprets the repeat sex offender statute,
considering these cases were decided shortly before the
enactment of that statute. Specifically, Wittrock was decided
in 1984 and Hopkins in 1992. In 1995, the court of appeals
applied the rule articulated in these cases. See State v.
Koeppen, 195 Wis. 2d 117, 126 n.4, 536 N.W.2d 386 (Ct. App.
1995) ("A conviction of a misdemeanor on three separate
occasions only requires convictions of three prior misdemeanors,
not three separate court appearances." (citing Wittrock, 119
Wis. 2d at 674)). In mid-1996, the repeat sex offender statute
and its companion, Wis. Stat. § 301.46(2m)(am), were created by
the same act, and both statutes use the phrase "separate
occasions." 1995 Wis. Act 440, §§ 72, 75. Given this timing,
the State emphasizes "[u]nder . . . [the prior-construction]
canon[,] . . . 'separate occasions' receives its accepted legal
meaning under the Wittrock-Hopkins interpretation." A
discussion of this series of events is conspicuously absent from
the majority opinion, which treats the repeat sex offender
statute as if it were enacted before Wittrock and Hopkins.
¶77 In contrast, Rector rejects the prior-construction
canon. Rector seems to take issue with the very idea that prior
construction is relevant to plain meaning. He also seems to
argue Wittrock and Hopkins were wrongly decided, theorizing this
court over-relied on legislative history. Additionally, he
argues the canon is inapplicable because the cases construed, in
his view, a materially different statute.
16
No. 2020AP1213-CR.rgb
¶78 Instead of applying the prior-construction canon,
Rector primarily argues that multiple convictions occur on the
same occasion unless they are separated by a temporal lapse. He
quotes an abrogated Seventh Circuit decision: "the term
'occasion' incorporates a temporal distinction, i.e., one
occasion cannot be simultaneous with another." United States
v. Hudspeth, 42 F.3d 1015, 1023 n.16 (7th Cir. 1994) (en banc),
abrogated on other grounds by Shepard v. United States, 544
U.S. 13 (2005). At points, Rector suggests the issue is not so
much timing as whether the convictions result from the same
underlying case.
¶79 The prior-construction canon resolves this case. In
Wittrock and Hopkins, this court authoritatively construed the
phrase "separate occasions." In Wittrock, this court held that
two convictions adjudicated in the same case constitute separate
occasions. 119 Wis. 2d at 666. Similarly, in Hopkins, this
court held convictions for two crimes committed in close
temporal proximity constitute separate occasions: "The
'occasion' referred to in the statute is the occasion of
conviction for each of the three crimes. Thus, all that is
required by the statute is that a defendant be convicted of
three misdemeanors within the five-year period." 168 Wis. 2d at
805. Shortly after Hopkins, the legislature used the phrase
"separate occasions" in another statute governing repeat
offenders: the repeat sex offender statute. Applying the
prior-construction canon, each of Rector's five sex offense
17
No. 2020AP1213-CR.rgb
convictions constitutes a separate occasion, even though
Rector's pleas were accepted during the same court proceeding.
¶80 Contrary to Rector's argument, the prior-construction
canon is relevant to plain meaning but the majority degrades its
utility. See Majority op., ¶20 (declaring "the meaning of the
statute is clear from its text" and only after that declaration
considering the State's prior-construction argument); see also
id., ¶9 ("[W]e first discern . . . [the repeat sex offender
statute's] plain meaning based on the language and context of
the statute. We next address this court's prior
decisions . . . and explain why those decisions do not dictate
our interpretation . . . in this case.").
¶81 Although the majority admits "[p]rior interpretation
by this court may be helpful in a plain meaning analysis," its
analysis eschews the canon altogether. See id., ¶25 (citing
Kalal, 271 Wis. 2d 633, ¶¶45–46). For example, it holds
Wittrock is "irrelevant" because, in the majority's view, the
repeat sex offender statute is "unambiguous[]," but that
reasoning incorrectly presumes the prior-construction canon
applies only to resolve an ambiguity. Id., ¶26. The majority
says the canon is at odds with "our oft-quoted principle that
'statutory language is given its common, ordinary, and accepted
meaning[.]'" Id., ¶40 (quoting Kalal, 271 Wis. 2d 633, ¶45).
By truncating the principle espoused in Kalal, the majority
misrepresents that case, which actually reads: "Statutory
language is given its common, ordinary, and accepted meaning,
except that technical or specially-defined words or phrases are
18
No. 2020AP1213-CR.rgb
given their technical or special definitional meaning." Kalal,
271 Wis. 2d 633, ¶45 (citations omitted).
¶82 In other cases, some members of the majority have
demeaned the canons of construction as mere tools in a
"toolbox"——"extrinsic source[s]," the utility of which is
limited to "clearing up confusing or ambiguous text." James,
397 Wis. 2d 517, ¶23 n.12 (quoting the dissent). Previously,
this court unequivocally rejected this view. Id. (noting some
justices' disparagement of the canons exposes a
"[f]undemental[] . . . misunderstand[ing of] how to interpret
legal texts"). The denigration of traditional canons for
interpreting legal texts infects the majority opinion.
¶83 Like many other canons, prior construction is a source
of plain meaning, having been applied by "the best legal
thinkers . . . for centuries." Scalia & Garner, Reading Law, at
xxix. Common law jurisdictions throughout the world have
applied the prior-construction canon for a long time. See,
e.g., Campbell, 5 Ch. App. at 706. Its conventional
application, over a long period, makes it an intrinsic source.
"Neither written words nor the sounds that the written words
represent have any inherent meaning. Nothing but convention and
contexts cause a symbol or sound to convey a particular idea."
Scalia & Garner, Reading Law, at xxvii. The prior-construction
canon is part of "a generally agreed-on approach to the
interpretation of legal texts." Id. It and other canons are
"helpful, neutral guides," "grounded in experience developed by
reason and tend to a better administration of justice than
19
No. 2020AP1213-CR.rgb
leaving interpretation in each case to feelings of policy on the
part of the tribunal[.]" Id. at 61 (quoting 3 Roscoe Pound,
Jurisprudence 506 (1959)). The majority's "marginalization" of
this well-established canon "flies in the face of centuries of
jurisprudence" and is "far outside of the judicial mainstream."
See James, 397 Wis. 2d 517, ¶23 n.12.
¶84 The majority also demonstrates a misunderstanding of
the prior-construction canon by adopting Rector's attack on the
reasoning of Wittrock and Hopkins. See, e.g., majority op., ¶22
("[W]ith little analysis of the surrounding words of the
statute, the court held that the term is ambiguous[.]"); id.,¶25 n.7 (explaining the majority intends to "point[] out
inconsistencies in the Wittrock and Hopkins decisions"). Even
assuming the cases were wrongly decided, they changed the
background against which the repeat sex offender statute was
enacted. The legislature presumptively relied on these cases, a
point reasonable people expect to inform legal meaning. The
legislature is not required to predict which of this court's
cases may someday be overturned.
¶85 The majority stops short of overturning Wittrock and
Hopkins despite insinuating they were wrongly decided, creating
inconsistency in the law——a prime reason to discard a decision.
See State v. Roberson, 2019 WI 102, ¶50, 389 Wis. 2d 190, 935
N.W.2d 813 (explaining this court can overturn precedent if
"there is a showing that the precedent has become detrimental to
coherence and consistency in the law" (quoting Bartholomew v.
Wis. Patients Comp. Fund & Compcare Health Servs. Ins., 2006 WI
20No. 2020AP1213-CR.rgb
91, ¶33, 293 Wis. 2d 38, 717 N.W.2d 216)). The majority offers
no principled reason——none——to justify why the number of
occasions is calculated differently in two statutes using the
same phrase in analogous contexts. The majority claims the
repeat offender statute is "unique," but the majority's mere
declaration does not make it so. See Majority op., ¶25.
Limiting cases to their facts without justification is not legal
reasoning.
¶86 The majority claims "any inconsistency or confusion"
stemming from its holding "is outweighed by the clear and plain
meaning" of the repeat sex offender statute. Id., ¶39; see also
id., ¶30 ("In summary, the portions of Wittrock——and by
extension, Hopkins——that are inconsistent with our analysis are
all based on considerations that are irrelevant or inapplicable
in the current context."). This reasoning erroneously
presupposes that prior construction is irrelevant to plain
meaning. Applying the canon would preserve plain meaning and
prevent a wholly unnecessary inconsistency. See Scalia &
Garner, Reading Law, at 324. The canon recognizes that a
precedential construction imbues a phrase with meaning it might
otherwise not have. By disregarding the canon, the majority
fosters incoherence and complexity while spawning confusion.
See Barrass v. Aberdeen Steam Trawling & Fishing Co., [1933]
A.C. 402, 412 (Eng.) (explaining the prior-construction canon is
"a salutary rule and one necessary to confer upon Acts of
Parliament that certainty which, though it is often lacking, is
always to be desired").
21
No. 2020AP1213-CR.rgb
¶87 Notwithstanding the conflict created by its decision
in this case, the majority declines to overturn Wittrock and
Hopkins because the meaning of the phrase "separate occasions"
in the repeat offender statute "appears to be settled[.]"
Majority op., ¶25. The majority presumes the legislature has
"possibl[y]" "acquiesce[d]" to the Wittrock-Hopkins construction
because the legislature has made changes to the repeat offender
statute since those cases were decided "and did not make any
changes to the 'separate occasions' language[.]" Id., ¶25 n.7
(citing Estate of Miller v. Storey, 2017 WI 99, ¶51, 378
Wis. 2d 358, 903 N.W.2d 759). The majority then holds that just
because the meaning "appears to be settled [in the repeat
offender statute], it does not follow that such operation is
necessarily transposed onto the . . . [repeat sex offender]
statute." Id., ¶25. Whatever illegitimate theory the majority
invokes to support its creation of legal inconsistency cannot
justify its decision to mutate fixed meaning in a closely
related statute.
¶88 The irony of upholding Wittrock and Hopkins based on
legislative acquiescence is totally lost on the majority.
According to the majority, the fixed meaning of a statute can
change if this court misconstrues the statute and the
legislature, over some undefined period, does not amend the text
to correct the error. Although the conventional application of
the misguided doctrine would conclude legislative acquiescence
confirms the holdings of Wittrock and Hopkins, the majority
disagrees with the analysis in each case. The majority does not
22
No. 2020AP1213-CR.rgb
explain how the fixed meaning of a statute can change based on
its text remaining unchanged. See Estate of Miller, 378
Wis. 2d 358, ¶99 (Kelly, J., concurring/dissenting). The
Wisconsin Constitution sets forth procedures for changing the
law. Absent from them is any manner by which a law can be, in
effect, amended through legislative inaction. Unlike
legislative acquiescence, prior construction is premised on an
event prior to a law's enactment imbuing a phrase used in the
law with meaning. Legislative acquiescence is premised on a
non-event——the mere passage of time——changing a law's fixed
meaning.
¶89 The majority professes inaction can imbue a
misconstrued statute with a new meaning. If the majority is
correct, surely this court's construction of a phrase could also
imbue meaning into that phrase when it is later used in a new
statute. In fact, to conclude that when the legislature does
not act, it is making a reasoned decision to endorse a
particular construction is much more suspect than to suppose the
legislature considers the definitive construction of a phrase by
the state's highest court when it uses that phrase in a new
statute. See id., ¶97 ("[A]ttributing significance to
legislative inaction depends on an overweening, court-centric
view of our relationship to the other branches of government.
If this interpretive device is to function, it requires a belief
that the legislature carefully attends to everything we say,
rigorously compares our pronouncements to its own understanding
of the statutory corpus, compiles a list of disagreements, and
23
No. 2020AP1213-CR.rgb
privileges corrective measures over everything else on its
crowded legislative calendar."). A legislative drafter is
obviously interested in the legislation being construed in
accordance with the drafter's expectations, and for that reason,
drafters often consider how phrases have been construed by
courts. See Wisconsin Bill Drafting Manual § 2.03(2)(a) (2023–
24) (advising drafters at the Legislative Reference Bureau to
consider whether a word or phrase is defined "in case law").
¶90 Rector's argument that the statutes are materially
different, which the majority adopts, is patently wrong. As the
majority notes, both the repeat sex offender statute and the
repeat offender statute "may be relied upon during the
sentencing of a criminal defendant"——and specifically, a repeat
offender. See Majority op., ¶39. Contradicting itself, the
majority declares the only similarity between the statutes lies
in their use of the same language. Id., ¶36 ("[T]he
legislature's limited use of general terms is hardly enough on
its own to make the statutes closely related."). While the
majority insists these statutes are sufficiently dissimilar to
reject the prior-construction canon, its description of these
alleged differences is particularly opaque.
¶91 "[W]hen a statute uses the very same terminology as an
earlier statute——especially in the very same field, such as
securities law or civil—rights law——it is reasonable to believe
that the terminology bears a consistent meaning." Scalia &
Garner, Reading Law, at 323. "One might even say that the body
of law of which a statute forms a part——especially if that body
24
No. 2020AP1213-CR.rgb
has been codified——is part of the statute's context." Id.; see
also Strenke v. Hogner, 2005 WI 25, ¶28, 279 Wis. 2d 52, 694
N.W.2d 296 ("A statute must be interpreted in light of the
common law and the scheme of jurisprudence existing at the time
of its enactment." (citing State v. Hansen, 2001 WI 53, ¶19,
243 Wis. 2d 328, 627 N.W.2d 195)). Notably, the United States
Supreme Court rejected the trivial-differences approach the
majority employs. See United States v. Davis, 588 U.S. __, 139
S. Ct. 2319, 2329 (2019) (citing Sullivan v. Stroop, 496
U.S. 478, 484 (1990)).
¶92 The repeat sex offender statute uses the "very same
terminology"——"separate occasions"——as the repeat offender
statute and both statutes deal with similar subject matter.
Scalia & Garner, Reading Law, at 323. That one states "2 or
more separate occasions" and the other "3 separate occasions" is
irrelevant. See State v. Anderson, 2014 WI 93, ¶41, 375
Wis. 2d 337, 851 N.W.2d 760 (Abrahamson, C.J., dissenting) ("I
start with the statutes, the one governing . . . [not guilty by
reason of insanity] and the other governing involuntary
intoxication. The two are closely related. They have
distinctive features but also share certain legal similarities;
violation of each might be proven by similar facts."). In one
treatise on statutory construction, examples of similar subject
matters are discussed at a high level of generality:
"securities law or civil—rights law[.]" Scalia & Garner,
Reading Law, at 323. The two statutes in this case are part of
the same body of law. The purpose of both is self-evidently to
25
No. 2020AP1213-CR.rgb
protect the public from repeat offenders and both impact
sentencing.
¶93 The majority contradicts its own reasoning that the
statutes are different by holding the similarity in language
between the statutes is immaterial because "separate occasions"
was not a legal term of art at the time it was construed in
Wittrock. See Majority op., ¶31. The question, though, is not
whether "separate occasions" had or has an accepted meaning in
common parlance but whether this court's precedent changes that
otherwise accepted meaning in a particular context. It
obviously does.
¶94 The phrase "separate occasions" is not especially
common in the Wisconsin statutes. Statutes can be closely
related based on "similar" phraseology and subject matter, and
the justification for applying the canon seems particularly
strong when the phrase at issue seldom appears in the Wisconsin
statutes. Compare State v. Reyes Fuerte, 2017 WI 104, ¶27, 378
Wis. 2d 504, 904 N.W.2d 773 ("Statutes are closely related when
they are in the same chapter, reference one another, or use
similar terms. Being within the same statutory scheme may also
make two statutes closely related." (citation omitted)), with
majority op., ¶35 ("It is undeniable that the two statutes
reside in different chapters governing different subject matter.
There are no cross references between . . . [the two statutes],
and the statutes do not rely on each other or otherwise
interact.").
26
No. 2020AP1213-CR.rgb
¶95 Aside from the repeat sex offender statute, its
companion, Wis. Stat. § 301.46(2m)(am), and the repeat offender
statute, the phrase appears in only three other statutes, one of
which imposes a penalty enhancer for certain repeat domestic
abusers. See Wis. Stat. § 939.621(1)(b) (defining as a
"domestic abuse repeater" any "person who, during the 10-year
period immediately prior to the commission of the crime for
which the person is presently being sentenced if the convictions
remain of record and unreversed, was convicted on 2 or more
separate occasions of a felony or a misdemeanor for which a
court imposed a domestic abuse surcharge under s. 973.055 (1), a
felony or a misdemeanor for which a court waived a domestic
abuse surcharge pursuant to s. 973.055 (4), or a felony or a
misdemeanor that was committed in another state but that, had it
been committed in this state, would have subjected the person to
a domestic abuse surcharge under s. 973.055 (1) or that is a
crime of domestic abuse under the laws of that state" (emphasis
added)); Wis. Stat. § 939.22(21) (defining a "[p]attern of
criminal gang activity" in the Wisconsin Criminal Code); Wis.
Stat. § 174.02(3)(a)1. (defining the circumstances under which a
court may order a dog killed). In the six statutes in which the
phrase "separate occasions" appears, four protect the public
from repeat offenders. The majority, therefore, is wrong to
suggest "separate occasions" is a "general term[.]" See
Majority op., ¶36 ("[T]he legislature's limited use of general
terms is hardly enough on its own to make the statutes closely
related.").
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¶96 Application of the prior-construction canon is also
consistent with a textually-expressed purpose of the sex-
offender registry, which the majority disregards: Protecting
the public, and particularly children. See Wis. Stat. § 301.001("The purposes of this chapter and chs. 302 to 304 are to
prevent delinquency and crime by an attack on their causes; to
provide a just, humane and efficient program of rehabilitation
of offenders; and to coordinate and integrate corrections
programs with other social services. In creating the department
of corrections, chs. 301 to 304, the legislature intends that
the state continue to avoid sole reliance on incarceration of
offenders and continue to develop, support and maintain
professional community programs and placements."). Textually-
expressed purpose is a legitimate indication of plain meaning.
See Scalia & Garner, Reading Law, at 217.
¶97 The 2017 Attorney General opinion examined the purpose
of the sex-offender registry, and specifically, of Wis. Stat.
§ 301.46. The Attorney General noted § 301.46 "reflects the
Legislature's concern with offenders' potential danger to the
public. The number of convictions, not court proceedings, best
measures that risk." OAG-02-17, ¶14; see also Kaminski, 245
Wis. 2d 310, ¶41 (explaining the purpose of the act creating the
repeat sex offender statute was "to protect the public and
assist law enforcement" and "related to community protection"
(quoting State v. Bollig, 2000 WI 6, ¶¶21–22, 232 Wis. 2d 561,
605 N.W.2d 199)). A person convicted of multiple sex offenses
is no less dangerous than he would otherwise be solely because
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the convictions occurred in the same case. See OAG-02-17, ¶15.
Perhaps a person who is convicted of a sex offense and later
commits a second sex offense is more dangerous than someone
convicted of two sex offenses in one case because the person
clearly did not use the first conviction as an opportunity for
rehabilitation. The majority does not, however, require the
commission of an offense to take place after the first
conviction. The majority does not hold that a person who
commits crimes after already having been convicted is a
repeater. Instead, the majority holds that a person convicted
at two different times and in two different proceedings is a
repeater, while a person convicted of multiple offenses close in
time during one proceeding is not. That holding is not required
by the text of the statute and is divorced from the statutory
purpose.
¶98 The majority does not reconcile its dangerous holding
with the dangerous problem the legislature addressed in the
repeat sex offender statute. As the State notes:
[S]uppose . . . [a person other than Rector]
downloaded child pornography to his home computer in
County X and later that same day to his cellphone
while in County Y. Under this scenario, the State may
charge this other person in two counties that may
result in convictions in different courts on different
days.
According to the State, "[i]t is absurd that the two defendants
face such differing periods of sex offender registration and
reporting." Although the State misunderstands the extraordinary
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facts necessary to deem a result legally absurd,9 the logical
implications of Rector's interpretation should give the majority
pause in light of the sex-offender registry's purpose. Rector
is no less dangerous than the hypothetical sex offender in the
State's scenario, yet the majority's holding places him on the
registry for a much shorter period. The majority's holding
invites strategic pleading by the State; the majority would have
required Rector to register as a sex offender for life had the
prosecutor simply brought one count in one case and the
remaining counts in another, with the cases being adjudicated on
different days. The majority's holding creates peculiar
distinctions between similarly situated defendants.
¶99 Rector possessed vile, evil imagery of children being
sexually abused; having his crimes adjudicated in a single case
does not mitigate the danger he poses. Even assuming Rector and
others like him have a "low" risk of reoffending——a point
emphasized in an amicus brief by the State Public Defender——
three justices of this court have previously explained:
"[P]arents of young children should ask themselves whether they
should worry that there are people in their community who have
'only' a 16 percent or an 8 percent probability of molesting
young children——bearing in mind the lifelong psychological scars
that such molestation frequently inflicts."10 State v. C.G.,
9 See generally Secura Supreme Ins. v. Estate of Huck, 2023
WI 21, 406 Wis. 2d 297, 986 N.W.2d 810 (Rebecca Grassl Bradley,
J., dissenting) (discussing the legal principle of absurdity).
10 The study cited in the amicus brief found six percent of
sex offenders reoffended by committing another sex offense over
a 15-year period. Joseph R. Tatar II & Anthony Streveler, Sex
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2022 WI 60, ¶42, 403 Wis. 2d 229, 976 N.W.2d 318 (lead op.)
(quoting Belleau v. Wall, 811 F.3d 929, 933–34 (7th Cir. 2016)).
The majority impermissibly erases the statutory purpose of the
sex-offender registry by constructing a rule removing Rector
from the registry earlier than the law requires, apparently
because the prosecutor used an efficient method to prosecute the
multiple crimes Rector committed. The majority's decision
thereby endangers some of the most vulnerable members of the
public.
¶100 In contrast, application of the prior-construction
canon would give effect to the statutory purpose of the sex-
offender registry while remaining consistent with this court's
post-enactment precedent. In 2001, this court unanimously cited
Wis. Stat. § 301.46(2m) as requiring "DOC . . . to provide the
police chief or sheriff with bulletins regarding any registrant
who is about to be released from confinement if the registrant
has been convicted of two or more sex offenses, or has been
committed under Wis. Stat. Ch. 980." Kaminski, 245 Wis. 2d 310,
¶33 n.8. This court equated convictions on "2 or more separate
Offender Recidivism After Release from Prison 5 (2015),
https://doc.wi.gov/DataResearch/RecidivismReincarceration/Sexual
OffenderRecidivismReport.pdf. The study utilized DOC's rather
narrow definition of "sexual recidivism": "Following an episode
of incarceration with the WI DOC, to commit a sex offense that
results in a new conviction and sentence to WI DOC custody or
supervision." Id. at 4. This definition is problematic because
many sex offenses do not result in a conviction. See State v.
Johnson, 2023 WI 39, ¶79, __ Wis. 2d __, __ N.W.2d __ (Karofsky,
J., concurring) ("[A]ccording to data from the U.S. Department
of Justice, as much as 86 percent of child sexual abuse may go
unreported altogether." (citing Dean G. Kilpatrick et al.,
Youth Victimization: Prevalence and Implications 6 (2003))).
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occasions" with convictions for "two or more sex offenses[.]"
Id. The majority silently withdraws this language from
Kaminski, destabilizing yet another precedent. See Friends of
Frame Park, U.A. v. City of Waukesha, 2022 WI 57, ¶68, 403
Wis. 2d 1, 976 N.W.2d 263 (Rebecca Grassl Bradley, J.,
concurring) ("After the plain text of a statute, precedent is
the most significant, the most ubiquitous, and the most powerful
of the traditional tools of statutory construction." (quoting
Michael Sinclair, Traditional Tools of Statutory Interpretation
13 (1942))). The majority's holding cannot be reconciled with
Kaminski.
¶101 Extrinsic sources, referenced by the State, confirm
the propriety of applying the prior-construction canon.11 The
majority degrades them, even though it rationalizes its
rejection of the canon because the repeat sex offender statute
ostensibly carries an "entirely different . . . legislative
history[.]" Majority op., ¶27. In a literal sense, all
statutes have a different history, but the reasonable inferences
that can be drawn from the legislative history of the repeat sex
offender statute are analogous to those drawn by this court in
Wittrock and Hopkins with regard to the repeat offender
statute's history.
The majority insinuates this opinion elevates extrinsic
11
sources above the letter of the law, but extrinsic sources
simply confirm the plain-meaning analysis and their use for this
purpose is well established in our jurisprudence. Contra
majority op., ¶27 n.9.
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¶102 Three sources of legislative history are relevant. A
DOC report in the drafting file for the repeat sex offender
statute recommended "lifetime registration requirements for any
person convicted, or found not guilty [by reason] of mental
disease or defect, of two (2) or more sexual offenses——repeat
sex offenders."12 DOC, Sex Offender Community Notification:
Proposed Program Components 6 (1994); see also id. at ii
(recommending extending "registration requirements for repeat
sex offenders (2 or more separate convictions) for life").
Notably, the report uses the phrase "repeat sex offenders,"
while the word "repeater" is used throughout the repeat offender
statute. E.g., Wis. Stat. § 939.62(1) ("If the actor is a
repeater . . . ."). The report, which was created before the
The majority declares this report "is not a reliable
12
indicator of legislative intent. Legislators are not bound to
follow, or even consider, a DOC report when drafting or enacting
a statute." Id., ¶28. We do not attempt to discern the
mythical legislative "intent" underlying a statute but instead
declare its meaning, which legislative history may be used to
confirm. The majority deems the law review article discussed in
Wittrock a reliable historical source but it was published after
the enactment of the relevant language in the repeat offender
statute. Obviously, it was not read by any legislators who
voted on the matter. See id., ¶27 (proclaiming this law review
article a better source of legislative history).
The majority displays a lack of familiarity with this
court's binding precedent referencing this DOC report. E.g.,
State ex rel. Kaminski v. Schwarz, 2001 WI 94, ¶¶53–55, 245
Wis. 2d 310, 630 N.W.2d 164 (citing and quoting DOC, Sex
Offender Community Notification: Proposed Program Components
(1994)); State v. C.G., 2022 WI 60, ¶29, 403 Wis. 2d 229, 976
N.W.2d 318 (quoting State v. Bollig, 2000 WI 6, ¶¶22, 25, 232
Wis. 2d 561, 605 N.W.2d 199 (citing DOC, Sex Offender Community
Notification, i, 1–2)). The majority creates yet another
inconsistency in the law, calling into question multiple
decisions regarding the sex-offender registry.
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text of the bill was drafted, is not the only source of
legislative history to confirm the State's construction. A DOC
fiscal estimate (prepared after the bill's drafting) similarly
noted the legislation would "expand[] registration time frames"
for "individuals with two or more separate sexual assault
convictions[.]" DOC, Fiscal Estimate – 1995 Session for 1995
Wis. S.B. 182 (May 25, 1995). After enactment, an information
memorandum prepared by the Legislative Council, in discussing
the companion statute, noted:
Act 440 requires DOC . . . to send a bulletin to local
law enforcement officials if the agency is going to
place or release into the community a person who:
(a) is subject to sex offender registration
requirements; and (b) has committed crimes or
violations covered by the registration statute on two
or more occasions.
Wis. Legis. Council Staff, Information Memorandum 96-18 3 (July
12, 1996). The focus of the report, the estimate, and the
memorandum is on the number of convictions, without regard to
when the judgment of conviction was entered. This focus
supports the application of the canon, and nothing in the
legislative history indicates members of the legislature
understood the phrase "separate occasions" to have a different
meaning than it was construed to have in Wittrock and Hopkins.
See Wis. Legislature v. Palm, 2020 WI 42, ¶26, 391 Wis. 2d 497,
942 N.W.2d 900 ("[T]he Legislative Reference Bureau never
described the added language as changing . . . [the agency's]
authority.").
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B. The Majority Establishes a Rudderless Rule of "I Know It
When I See It."
¶103 The majority holds that "when a person is convicted
based on charges filed in a single case during the same hearing,
then those convictions have not occurred on 'separate
occasions.'" Majority op., ¶19. It explicitly "leave[s] for
another day whether . . . convictions that only meet one of
those two conditions," i.e., convictions occurring in either "a
single case" or at "the same hearing" but not both, "have
occurred on separate occasions." Id., ¶19 n.5. The majority's
holding resolves the issue in this case, but its reasoning
leaves future cases in flux and subject to the court's whim
rather than its judgment.
¶104 The majority first focuses on temporal proximity in
determining whether occasions are separate: "a person must
comply with registration requirements for life if the event of
conviction occurred at two or more separate (set apart) times."
Id., ¶13. Leaving "set apart" without any definition, however,
the majority proclaims "[c]onvictions that are filed in a single
case and pronounced within the same hearing are not
significantly 'set apart' or 'disunited,' and so are not
'separate occasions.'" Id., ¶17. The majority then pivots to a
different test for whether occasions are separate, which is not
so much grounded in timing as whether the convictions stem from
"the same case filing." Id. The majority never resolves this
contradiction.
¶105 What if a case involves two sex offenses and the first
plea is accepted before a lunch break and the second after? Are
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those convictions "united by . . . temporal proximity"? See id.
Could a prosecutor bring separate cases but have the guilty
pleas entered within a few minutes of one another? The
majority's reasoning lacks clarity, leaving the impression of a
"rule" grounded in nothing more than "I know it when I see it."
See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J.,
concurring) ("I have reached the conclusion . . . that under the
First and Fourteenth Amendments criminal laws in this area are
constitutionally limited to hard-core pornography. I shall not
today attempt further to define the kinds of material I
understand to be embraced within that shorthand description; and
perhaps I could never succeed in intelligibly doing so. But I
know it when I see it, and the motion picture involved in this
case is not that.").13
¶106 The vagueness in the majority's reasoning could be
easily avoided with a clear holding grounded in traditional
legal reasoning. Instead, the majority says, in effect, "I know
these weren't separate occasions. Maybe in some future case
I'll tell you what a separate occasion actually is."
IV. CONCLUSION
¶107 The majority errs in rejecting the prior-construction
canon's application in favor of muddling the well-settled
meaning of "separate occasions," which this court decisively
13Similarly unclear is the majority's wedding analogy. See
majority op., ¶16. Of course a wedding could be an occasion,
and obviously a wedding may have discrete events, e.g., a
marriage ceremony and a reception. That various things can
happen during a single occasion does not dictate what
constitutes a particular occasion.
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construed nearly 40 years ago to mean "separate convictions" not
"separate proceedings." The legislature relied on this meaning
when it later used the phrase in a closely related statute. The
majority repudiates the fixed meaning of the phrase at the
expense of the textually-expressed purpose of the statute, and
in derogation of this court's precedent. Effectively rewriting
the repeat sex offender statute, the majority trivializes
heinous crimes against children, and its decision endangers some
of the community's most vulnerable members. I respectfully
concur in part and dissent in part.
¶108 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join
this opinion.
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1