APPEAL from an order of the Circuit Court for Racine
County, Wayne J. Marik, Judge. Reversed
and remanded for further proceedings.
1 DIANE S. SYKES, J. This case is before the court
on certification from the court of appeals on a question of first-impression
regarding the scope of Wisconsin's identity theft statute,
Wis. Stat. § 943.201(1999-2000). Specifically, the question is whether a
defendant who misappropriates another's identity and uses it during an arrest
and in subsequent bail proceedings to obtain lower bail has done so "to
obtain credit, money, goods, services or anything else of value" within
the meaning of the identity theft statute.
Wis. Stat. § 943.201(2). We answer
this question yes.
¶2 "Bail" is statutorily defined as "monetary
conditions of release." Wis. Stat.
§ 969.001(1). "Monetary"
means "of or relating to money."
Webster's Third New International Dictionary 1457-58 (1998). Bail can consist of cash or an unsecured
appearance bond or both. Wis. Stat. §§
969.02 and 969.03. In either case, it
operates as a form of credit, securing the defendant's return to court. Accordingly, a defendant who misappropriates
another's identity and uses it during an arrest and in bail proceedings to
obtain lower bail has stolen that identity to obtain credit or money, or both,
within the meaning of the identity theft statute. Wis. Stat. § 943.201(2).
I. FACTS AND PROCEDURAL HISTORY
¶3 On September 30, 2001, the
loss prevention staff at a Racine Shopko store attempted to detain Pamela Lynn
Peters and her son after the two had shoplifted a videogame system. During the confrontation, Peters produced a
box-cutter and attempted to escape with other stolen goods. Upon arrest, Peters falsely identified
herself to police as Patricia A. Panzer, d/o/b November 25, 1955, of N898
Elmore Drive, Campbellsport, Wisconsin.
Patricia Panzer is the ex-wife of Peters' husband.
¶4 The State charged Peters, under the falsely assumed name of
Patricia A. Panzer, with armed robbery and retail theft. Peters made her initial appearance in Racine
County Circuit Court on October 1, 2001.
During the initial appearance, Peters continued to falsely represent
herself as Patricia Panzer. The State
asked for a $20,000 cash bail. Based on
Peters' falsely assumed identity, Peters' attorney argued that a $1,000 cash
bail was appropriate, citing Panzer's stable Campbellsport address, lack of a
criminal record, lack of any history of failed court appearances, and valid
driver's license.
¶5 The court commissioner set bail as follows: "What I'm going
to do, it's going to be a combination cash and signature bond. Again, I'm going to knock down the cash
portion somewhat, but maybe not as much as your client would like. The total
bond is going to be $20,000. $10,000
cash, $10,000 signature bond."
¶6 The next day, on October 2, 2001, the circuit court, the Honorable
Wayne J. Marik, held an evidentiary hearing at the State's request and made
findings of fact concerning Peters' actual identity. The circuit court found that the defendant was not Patricia A.
Panzer but in fact was Pamela Lynn Peters, d/o/b November 15, 1964, of 715 Main
Street, Lomira, Wisconsin. The circuit
court specifically found that:
[T]he person who is appearing in court today is the
wife of the ex-husband of Patricia A. Panzer who was born on November 25,
1955. Further the individual present in
court on at least two prior occasions has identified herself to law enforcement
authorities or in connection with court proceedings as Patricia A. Panzer.
¶7 The court amended the case caption to reflect Peters' true
identity, and then revisited the issue of bail. The State informed the court that, unlike Panzer, Peters had a
record of criminal arrests including multiple counts of theft, resisting
arrest, contributing to the delinquency of a child, possession of drug
paraphernalia, possession of cocaine, and criminal damage to property. Furthermore, unlike Panzer, Peters had eight
outstanding warrants for her arrest.
After considering the new information, the circuit court concluded that
there was "a very strong inference in the court's mind that the defendant
was trying to establish an identity that could be verified pursuant to which
she may be released and then able to flee." Having concluded that Peters was a substantial flight risk, in
part because of the falsely assumed identity and previously unknown outstanding
warrants, the court increased Peters' bail to $30,000 cash.
¶8 The State amended the complaint to reflect Peters' correct
identifying information and added a charge of obstructing an officer. The State later filed a second amended
complaint adding the charge that is at issue on this appeal, violation of the
identity theft statute, Wis. Stat. § 943.201. The identity theft statute makes it a crime
to intentionally misappropriate another's identity "to obtain credit,
money, goods, services or anything else of value" without the other's
consent. Wis. Stat. § 943.201(2).
¶9 The second amended complaint alleged that Peters told police she
had lied about her true identity "because she had warrants outstanding in
other jurisdictions." The
complaint alleged that Peters had misappropriated Panzer's identity to obtain
something of value, to wit "(1) not being taken into custody on warrants
from other jurisdictions and (2) to obtain a lesser bond at the initial
appearance in this matter."
¶10 Peters moved to dismiss the identity theft charge. She claimed that the complaint failed to
allege one of the elements of the crime required by statute, specifically, that
she had misappropriated another's identity to obtain "credit, money,
goods, services or anything else of value." Wis. Stat. § 943.201(2). Peters argued that the doctrine of ejusdem generis as
applied to the catch-all statutory phrase "anything else of value"
required dismissal of the charge because bail was not like the other itemized
things of value in the statute, i.e., credit, money, goods, or services. The doctrine of ejusdem generis is a
"canon of construction that when a general word or phrase follows a list
of specific persons or things, the general word or phrase will be interpreted
to include only persons or things of the same type as those listed." State v. A.S., 2001 WI 48, ¶33 n.4,
243 Wis. 2d 173, 626 N.W.2d 712 (citing Black's Law Dictionary 535 (7th
ed. 1999)).
¶11 The circuit court granted Peters' motion and dismissed the
charge. Applying ejusdem generis,
the circuit court concluded that the phrase "anything else of value"
in Wis. Stat. § 943.201(2) was limited to "something that is in a category
of credit, money, goods, services, or having those types of characteristics
having measurable value and worth in a commercial sense in the
marketplace," and that "[o]btaining a more favorable bond in a
criminal case does not in the court's opinion fall within that category."
¶12 The State appealed the dismissal of the identity theft charge. We accepted the court of appeals'
certification of the case and now reverse.
II. STANDARD OF
REVIEW AND PRINCIPLES OF INTERPRETATION
¶13 This case presents a question
regarding the scope and interpretation of the identity theft statute,
Wis. Stat. § 943.201.
Questions of statutory interpretation are reviewed de novo. State v. Setagord, 211
Wis. 2d 397, 406, 565 N.W.2d 506 (1997).
¶14 If the language of a statute is clear on its face, we need not
look any further than the statutory text to determine the statute's
meaning. See Bruno v.
Milwaukee Co., 2003 WI 28, ¶¶18-22, 260 Wis. 2d. 633, 660 N.W.2d 656. "When a statute unambiguously expresses
the intent of the legislature, we apply that meaning without resorting to
extrinsic sources" of legislative intent.
State ex rel. Cramer v. Wis. Ct. App., 2000 WI 86, ¶18, 236
Wis. 2d 473, 613 N.W.2d 591.
Statutory language is given its common, ordinary and accepted
meaning. Bruno, 260
Wis. 2d 633, ¶20; State v. Engler, 80 Wis. 2d 402, 406, 259
N.W.2d 97 (1977). Rules of statutory
construction are inapplicable if the language of the statute has a plain and
reasonable meaning on its face. Id.
at 406-09 (holding that canons of construction, including ejusdem generis,
are inapplicable when the statute is clear on its face).
III. DISCUSSION
¶15 Wisconsin's identity theft
statute, entitled "Misappropriation of personal identifying information or
personal identification documents," provides as follows:
Whoever intentionally uses or attempts to use any
personal identifying information or personal identification document of an
individual to obtain credit, money, goods, services or anything else of
value without the authorization or consent of the individual and by
representing that he or she is the individual or is acting with the
authorization or consent of the individual is guilty of a Class D felony.
Wis. Stat. §
943.201(2)(emphasis added).
¶16 The circuit court applied the doctrine of ejusdem generis
to limit the application of the identity theft statute to cases in which
another's identity is misappropriated for the purpose of obtaining something
having "measurable value and worth in a commercial sense in the market
place." Lower bail, in the circuit
court's view, did not qualify.
¶17 We disagree with the circuit
court's restrictive reading of the identity theft statute. There is nothing in Wis. Stat. § 943.201
that explicitly limits its application to identity thefts that are carried out
to obtain something that has "commercial value" or "market
value." Neither does the statute
implicitly contain such a limitation.
¶18 The identity theft statute prohibits misappropriation of
another's identity "to obtain credit, money, goods, services or anything
else of value." Wis. Stat. §
943.201(2). Here, Peters is alleged to
have misappropriated Panzer's identity to obtain a lower bail.
¶19 "'Bail' means monetary conditions of release." Wis. Stat. § 969.001. "Monetary" means "of or
relating to money." Webster's,
supra, at 1457-58. Bail can also
include an unsecured appearance or "signature" bond, in addition to
or in lieu of cash. Wis. Stat. §
969.02(1)(misdemeanor bail) and § 969.03(1)(felony bail). The term "bond" as used in this
context means "a writing . . . by which a person binds
himself to pay a certain sum . . .; also: the amount of money so
guaranteed——often used with give <each must give [bond] for his
appearance before the court>." Webster's,
supra, at 250. Bail therefore
represents either cash or the promise of cash, that is, an unsecured grant of
credit. In either case, bail operates
as a form of credit (secured or unsecured) for the defendant's return to court. As used in this context, bail as a form of
"credit" is "the balance in a person's favor in an
account." Id. at 532-33.
¶20 Accordingly, a misappropriated identity that is used to obtain a
lower bail obtains: 1) a reduced cash bail; 2) a signature bond with a lower
money forfeiture; or 3) both.
Therefore, because bail is statutorily defined as "monetary
conditions of release," and can be expressed as either cash or a bond, or
both, one who misappropriates another's identity and uses it to obtain lower
bail in a criminal case has done so to obtain credit or money within the
meaning of the identity theft statute.
Wis. Stat. § 943.201(2).
¶21 True, bail does not have "commercial value" or
"market value" in the sense that it is not bought, sold, or traded in
the marketplace. But it plainly does
have monetary value, is expressed in terms of cash or a bond, and operates as a
form of credit. The circuit court's
imposition of a requirement of measurable commercial or market value unduly
restricted the statute's application contrary to its terms. See Engler, 80 Wis. 2d at
408-09 (Ejusdem generis cannot be applied to alter the meaning of
statutory language that is clear on its face.).
¶22 The circuit court arrived at this interpretation of the identity theft
statute by applying the ejusdem generis canon of construction to the
catch-all phrase "or anything else of value." We have concluded, however, that bail
constitutes credit, money, or both, within the meaning of the identity theft
statute, because bail is statutorily defined as "monetary conditions of
release," takes the form of cash, a bond or a combination of the two, and
operates as a form of credit.
¶23 Accordingly, this case does not require us to determine the
precise meaning or scope of the phrase "or anything else of value" in
the identity theft statute. It is
enough to note that the addition of the phrase "or anything else of
value" to the itemized list of "credit, money, goods [or]
services" does not narrow the meaning of "credit, money, goods
[or] services." There is no
purpose for the presence of the phrase "or anything else of value"
except to expand the list of potential qualifying "things of value." But we do not need to determine the precise
meaning or scope of the phrase "or anything else of value" or attempt
to delineate the outer limits of the identity theft statute in order to decide
this case. Because bail can be cash, a
bond, or both, and operates as a form of credit, the misappropriation of
another's identity to obtain lower bail meets the statute's requirement that
the perpetrator misappropriate an identity to obtain credit or money. Wis. Stat. § 943.201(2).
¶24 Our decision here is consistent with the court of appeals'
rejection of a narrow interpretation of the identity theft statute in State
v. Ramirez, 2001 WI App 158, 246 Wis. 2d 802, 633 N.W.2d 656. The defendant in Ramirez
misappropriated a social security number and used it to obtain a job. Ramirez, 246 Wis. 2d 802,
¶2. This occurred before the enactment
of Wis. Stat. § 943.201.
Id., ¶¶2, 4. The
defendant, however, continued to hold the job and collect wages using the
stolen social security number for more than a year after the effective date of
the statute. Id., ¶3. The court of appeals concluded that Wis.
Stat. § 943.201 is "targeted at much more than the isolated act of
misappropriating the personal identifying information of another or the initial
receipt by the defendant of a thing of value as a result of the misappropriation." Id., ¶16. The court concluded that
because "the legislature envisioned that the theft of a person's identity
would, in many instances, produce recurring episodes in which the defendant
would obtain things of value as a result of the original act of identity
theft," the identity theft statute "creates a continuing
offense." Id.
¶25 Similarly here, we reject the narrow reading of the identity
theft statute adopted by the circuit court.
We conclude that the circuit court improperly restricted the scope of
the identity theft statute to preclude its application to the facts present in
this case. Resort to the doctrine of ejusdem
generis to determine the scope of the statutory phrase "or anything
else of value" was unnecessary here.
A person who misappropriates another's identity to obtain a lower bail
has misappropriated that identity to obtain credit or money within the meaning
of the identity theft statute, Wis. Stat. § 943.201(2). Accordingly, we reverse the circuit court's
order dismissing the identity theft charge, and remand for reinstatement of the
charge and further proceedings consistent with the opinion.
By the Court.—The order of the Racine County
Circuit Court is reversed and the cause remanded for further proceedings consistent
with this opinion.
¶26 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring).
I agree with the majority that a defendant who misappropriates another's
identity and uses it during an arrest and subsequent proceedings to obtain
lower bail does so in violation of Wis. Stat. § 943.201.
I
¶27 I write separately to reflect yet again on this court's approach to
statutory interpretation. The majority opinion invokes the plain
meaning rule in this case, explaining that it will not look beyond the
statutory text to determine a statute's meaning if the language is clear on its
face. It then announces that "canons of
construction . . . are inapplicable when a statute is
clear" and uses
this "rule" as a bar to applying the ejusdem generis canon of
construction in the present case.
¶28 How strange. First, the plain meaning rule is itself a
canon of construction. Second, many of the other interpretive
techniques employed by the majority opinion to construe
Wis. Stat. § 943.201 are also canons of construction. For example, the maxim that statutory
language is given its common, ordinary and accepted meaning is a canon of
construction. So is the rule that courts may refer to a
recognized dictionary to determine the common meaning of terms,
and the rule that a statutory definition declaring what a term means is binding
upon the court.
The majority opinion openly invokes all of these canons of construction
despite concluding that the language is plain on its face. It offers no reason why the plain meaning
rule permits the use of these canons, but not use of the canon of ejusdem
generis.
¶29 The majority opinion creates a false division between the plain
meaning rule and canons of construction.
Proponents of the plain meaning rule reject the use of "extrinsic
aids" to construction such as legislative history, history of the
enactment process, committee reports, and legislative debates,
when the language of a statute is "clear and unambiguous." The plain meaning rule's advocates do not,
however, reject the use of "intrinsic aids" that assist in discerning
whether the language of a statute is plain on its face, such as other statutes,
statutory definitions, and dictionaries.
¶30 "Intrinsic aids" to construction, including rules of
grammar and generalizations about customary habits in the use of language, are
essential to any application of the plain meaning rule. "Even when a judge claims not to be
construing a statute, he [or she] can not help using what he [or she] has
learned about customary language usage and common understanding associated with
the relevant text." The rules that words should be given their
plain and ordinary meaning and that courts may resort to a dictionary to
ascertain the meaning of words are simply generalizations about customary
habits in the use of language that are part and parcel of the process of
interpreting the meaning of a statute's text.
¶31 Similarly, ejusdem generis is simply a generalization about the use
of words. Ejusdem generis is Latin for
"of the same kind," and means that when general words follow specific
words in a statutory enumeration, the general words are construed to embrace
objects similar in nature to those objects enumerated by the preceding specific
words. For example, ejusdem generis might suggest
that the phrase "any other games" in a statute encompassing
"baseball, basketball, football, and any other games" would be
limited to team sports (like soccer) and not include "games" like
chess or video games. An enumeration
followed by a "catch all" phrase is a common drafting technique that
saves a legislature from having to spell out every contingency in advance.
¶32 Ejusdem generis is not always an appropriate canon of construction,
even when a statute includes a list of specific words followed by general words
in an enumeration. The applicability of this canon must be
resolved as part of a court's effort to determine the meaning of a statute's
text. The canon is an "intrinsic
aid" that is germane to a textualist approach to statutory interpretation;
that is, it is both compatible with and necessary to the plain meaning rule,
just like the other canons the majority opinion relies on in the present case.
¶33 The vast majority of cases coming to this court involve the
interpretation of some writing, be it a statute, a constitution, a contract, or
some other document. The consistency and
coherence of our approach to interpretation is therefore vital. Litigants, lawyers, legislators, judges, and
the citizens of Wisconsin deserve to know and understand how we approach
interpretation.
¶34 As I have stated, proper statutory interpretation requires that a
court take a comprehensive view toward discerning legislative intent that
begins with consideration of the language of a statute and then looks to all
relevant evidence of legislative intent including its scope, history, context,
subject matter and purpose.
II
¶35 Finally, while on the topic of rules, let me turn to another
rule. The majority opinion violates a
basic rule of appellate decision making: courts are not to reach out and decide
issues unnecessary to the case at hand.
The majority opinion correctly concludes that a person is guilty of
identity theft under Wis. Stat. § 943.201 when he or she
misappropriates another's identity to obtain lower bail because bail falls
within the statutory words "to obtain credit or money." It is thus not necessary to the present case
to reach out and further state in what amounts to dicta that the phrase
"or anything else of value" in § 943.201 is unduly restricted if
it is interpreted to include only items with measurable commercial or market
value. As I have written before, there is a growing
tendency for this court to reach out and decide issues that are not squarely
presented. This tendency is, I believe, detrimental to
the development of Wisconsin law.
¶36 For the foregoing reasons, I write separately.
¶37 I am authorized to state that Justice WILLIAM A. BABLITCH joins
part I of this opinion and that Justice ANN WALSH BRADLEY joins part II of this
opinion.
