COURT OF APPEALS
DECISION
DATED AND FILED
June 8, 2000
Cornelia G. Clark
Clerk, Court of Appeals
of Wisconsin
NOTICE
This opinion is subject to
further editing. If published, the official version will appear in the bound
volume of the Official Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
Nazir I. Al-Mujaahid, a/k/a John Butler,
Petitioner-Appellant,
v.
City
of Milwaukee,
Respondent-Respondent.
APPEAL from an order of the circuit court for Milwaukee County: bonnie l. gordon, Judge. Affirmed.
Before
Dykman, P.J., Eich and Vergeront, JJ.
¶1 EICH, J. Nazir
Al-Mujaahid appeals from an order denying his request that the respondent, City
of Milwaukee, be ordered to pay attorney fees and costs under Wis. Stat. § 814.025 (1997-98)[1] for maintaining a frivolous position in resisting his
petition for return of seized property under Wis.
Stat. § 968.20. Because we
conclude that the frivolous-action statute doesn’t apply to proceedings that
are criminal in nature, such as Al-Mujaahid’s petition for return of property,
we reject his argument and affirm the order.
¶2 While
investigating a reported residential burglary, two City of Milwaukee police
officers found two sawed-off firearms unsecured in a room that was rented to
Al-Mujaahid. The owner of the residence
told the officers that the guns belonged to Al-Mujaahid. According to the officers, upon conducting a
background check, they learned that Al-Mujaahid had juvenile convictions for
armed and masked robbery (for which he had been incarcerated) and for
possession of a dangerous weapon by a child.
The officers confiscated the weapons and placed them in inventory at the
Milwaukee Police Department.
¶3 Al-Mujaahid
sought return of the weapons on several occasions and through various
channels. Eventually, he filed a
return-of-property petition with the circuit court under Wis. Stat. § 968.20, which sets
forth procedures for recovering property seized by police.
After an evidentiary hearing at which the City strenuously objected to
returning the weapons to Al-Mujaahid because of his violent history, the court
ordered their return. It went on to
deny Al-Mujaahid’s request for attorney fees and costs under Wis. Stat. § 814.025, ruling that
the City did not maintain a frivolous position in opposing his petition.
¶4 The issue is one of statutory construction—a
question of law which we consider de novo.
See State ex rel. Frederick v. McCaughtry, 173
Wis. 2d 222, 225, 496 N.W.2d 177 (Ct. App. 1992). Our goal in interpreting a statute is to
discern the legislature’s intent and to ascribe a meaning to the statute which
comports with that intent. See Rolo
v. Goers, 174 Wis. 2d 709, 715, 497 N.W.2d 724 (1993). We look first to the language of the
statute; if it is clear and unambiguous on its face, we simply apply that
language to the facts at hand. See State
v. Michael J.W., 210 Wis. 2d 132, 146, 565 N.W.2d 179 (Ct. App.
1997). And while we will not
look behind the statute’s plain and unambiguous language, we do consider its
parts in relationship to the whole statute and related sections. Elliott v.
Employers Mut. Cas. Co., 176 Wis. 2d 410, 414, 500 N.W.2d 397 (Ct.
App. 1993).[2]
¶5 We begin by noting that the legislature has plainly and
unambiguously classified a proceeding seeking the return of seized property
under Wis. Stat. § 968.20 as
criminal, rather than civil, in nature.
Not only is chapter 968 itself entitled “Commencement of Criminal
Proceedings,” but a related statute, Wis.
Stat. § 967.01,
states that chapters 967 to 969 are to be “referred to as the criminal
procedure code and shall be interpreted as a unit.” We are satisfied that § 968.20
is unambiguously criminal in nature.
¶6 The
frivolous-action statute, Wis. Stat. § 814.025,
is equally clear. It is part of the
Civil Procedure Code and, under Wis. Stat. § 801.01(2), it is
one of the statutes governing “procedure and practice
in circuit courts of this state in all civil actions and special
proceedings.” By its very name and
nature, it does not apply to criminal proceedings. We note in addition that
§ 814.025
allows frivolous-action costs “if an action or special
proceeding is commenced or continued by a plaintiff or a counterclaim, defense
or cross complaint commenced, used or continued by a defendant.” In proceedings under Wis. Stat. § 968.20,
there are no plaintiffs or defendants, nor any
opportunities to raise counterclaims, defenses or cross-complaints. The only parties are the petitioner and the
responding district attorney or city attorney, whose only response, under the
statute, is to object, or not to object, to return of the property. The proceedings are criminal, not civil in
nature, and the plain language of the applicable statutes can lead to only one
conclusion: that the civil frivolous-action statute, § 814.025, does not
apply to criminal-type proceedings commenced under § 968.20.
By the Court.—Order affirmed.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.
[2] It is only when the statutory language is ambiguous that we examine the law’s scope, history, context, subject matter and purpose in order to determine legislative intent. See State ex rel. Frederick v. McCaughtry, 173 Wis. 2d 222, 226, 496 N.W.2d 177 (Ct. App. 1992). We discern no argument in either party’s briefs that either Wis. Stat. § 968.20 or Wis. Stat. § 814.025 is ambiguous, whether facially or in their application to the facts.