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"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those edited, truncated, and lifted parts are indented. My additions / summaries are not. And hey!
Please remember — these are generally taken from briefs and present the arguments of the parties appealing. They do not necessarily present the full story.
The case: Kaul v Urmanski
Case no.: 23AP2362
Filed in: Wisconsin Supreme Court (on bypass, skipping the Court of Appeals)
Circuit Judge: Diane Schlipper, Dane County
Filing Attorneys: Douglas Poland, Clementine Uwabera, Carly Gerads, and Zoe Pawlisch
Law firm / agency: Stafford Rosenbaum
Four new briefs were filed last week in Kaul v. Urmanski, one of two state Supreme Court cases seeking to have the right to abortion protected in Wisconsin.
Today's featured brief was filed by Dane County District Attorney Ismael Ozanne, who was a defendant in Attorney General Josh Kaul's original case seeking to preserve abortion rights in the state.
A post about Kaul's brief was posted Friday, Sept. 13; about Milwaukee County District Attorney John Chisholm's brief , Saturday, Sept. 14; and about intervenor plaintiffs Christopher Ford's, Kristin Lyerly's, and Jennifer McIntosh's brief, Tuesday, Sept. 17.
In this case, Sheboygan County District Attorney Joel Urmanski is appealing Dane County Circuit Judge Diane Diane Schlipper's ruling last year that an 1849 statute outlaws infanticide, not abortions. Urmanski is arguing that the law does apply to abortions and should be enforced in the wake of the U.S. Supreme Court's 2022 decision striking down Roe v Wade.
Ozanne's Introduction
In his opening brief, Defendant-Appellant Joel Urmanski states that he “has not taken a position during the litigation of this case on what the law on abortion should be” but that he “does have an opinion on what the law currently is.” Urmanski reads Wisconsin Statutes Section 940.04(1) to “prohibit[] performing abortions (including consensual abortions) from conception until birth (subject to § 940.04(5)).” Defendant-Respondent Ismael R. Ozanne continues to participate in this appeal, in part, to protect his discretion and the discretion of other district attorneys in Wisconsin to make prosecutorial decisions that are appropriate under the particular circumstances of each case. ... Ozanne agrees that Urmanski — just like any one of Wisconsin’s 71 district attorneys — may have his own opinion of what current Wisconsin law provides. That discretionary reading of Wisconsin law, including statutes, however, cannot extend so far as to create inconsistencies in how the law is interpreted across Wisconsin’s 72 counties. In other words, while different district attorneys might reach different conclusions on how the law should be applied in any given set of circumstances, this Court cannot and should not countenance differences among district attorneys in the meaning of a particular criminal statute. Specifically with respect to Section 940.04(1), Urmanski may have his own “opinion on what the law currently is,” but he is not alone in that regard. Ozanne has his own opinion as well, and as set forth in this brief, his position is that Urmanski’s interpretation of the statute is unavailing, and that the circuit court’s interpretation of Section 940.04(1) as only prohibiting feticide and not consensual abortions, which has been the law in effect since (at least) December 2023, is the most appropriate interpretation of that statute.
Argument
Wisconsin’s jurisprudence has developed a strong and robust approach to statutory interpretation over time. The law is both clear and well-developed in its application. Yet ... Urmanski resorts to a grab bag of over ten statutory interpretation arguments to support his reading of Section 940.04(1).
Urmanski improperly relies on legislative history to discern the meaning of Section 940.04(1).
Urmanski repeatedly insists that Section 940.04(1) is unambiguous.
Yet Urmanski continuously cites to and relies upon legislative history (sometimes improperly referring to it as “statutory history”) by claiming that he is simply “confirming” the statute’s plain meaning. Urmanski’s use of legislative history in this context is improper and violates well-established principles of statutory interpretation.
Wisconsin courts have cautioned that a statute’s history is distinct from its “legislative history,” which was “never enacted” by the legislature and includes “interpretive resources outside the statutory text.”
Urmanski’s frequent reliance on the Legislative Council comments from 1953, along with his discussion of Section 940.15’s legislative history, are improper, as those sources constitute legislative history that is not to be considered during a plain meaning analysis.
The contemporaneous applications of Section 940.04(1) that Urmanski urges this Court to consider do not support his interpretation of the statute.
Urmanski argues that “contemporaneous applications of Section 940.04” in the period proceeding its enactment also reflect an “understanding that § 940.04, like its predecessor statues, continued to prohibit abortions both before and after the quickening of a fetus.” As an initial matter, Urmanski cites no authority for the proposition that “contemporaneous applications” of a statute are a permissible tool of statutory interpretation.
Urmanski’s reading of Section 940.04(1) gives improper weight to statutory titles.
Urmanski spends one paragraph of his brief arguing that the title of Section 940.04, “Abortion,” “confirms its applicability to consensual medical abortions.” However, as one of the cases cited by Urmanski (Matasek) acknowledges, pursuant to Section 990.001(6), “the titles to subchapters, sections, subsections, paragraphs and subdivisions of the statutes and history notes are not part of the statutes.”
Urmanski’s invocation of the canon against surplusage is onesided and fails to consider the entirety of Wisconsin’s statutory scheme governing consensual abortions.
Construing Section 940.04(1) as an abortion statute would render several subsequent, and more specific, statutes pertaining to abortion, surplusage. For example, if Section 940.04(1) is construed to prohibit persons other than the mother from performing consensual abortions at any stage of a pregnancy, then the following statutes would be rendered surplusage:
Section 253.107(3)(a) (prohibiting persons other than the mother from “perform[ing] or induc[ing] or attempt[ing] to perform or induce an abortion upon a woman … if the probable postfertilization age of the unborn child is 20 or more weeks”).
Section 940.15(2) (prohibiting persons from “intentionally perform[ing] an abortion after the fetus or unborn child reaches viability”).
Urmanski’s construction of Section 940.04(1) would produce absurd results.
Construing Section 940.04(1) to prohibit consensual abortions would either render the statute contextually inconsistent with the remainder of Section 940.04 or with subsequent abortion statutes, thereby producing absurd results. If this Court upholds (State v) Black’s construction of Section 940.04(2)(a) as a feticide statute, it would be absurd to construe Section 940.04(1) to simultaneously prohibit consensual abortions, when the prohibitions in both
subsections contain identical language, save for the term “quick.”
If, by contrast, as Urmanski claims, Black is no longer good law, then his constructions of Sections 940.04(1) and (2)(a) as prohibiting consensual abortions would render ... countless other more detailed statutory provisions that govern the field of abortion regulation surplusage. Significantly, under this construction, Section 940.04(1) would impose a more serious felony classification for consensual abortions performed prior to quickening than that imposed by (other laws) for abortions performed after viability, or 20 weeks of pregnancy, respectively.
Urmanski’s argument that this Court should reject Black as dicta is inconsistent with this Court’s precedent.
This Court has stated that its decisions do not contain dicta.
Urmanski’s arguments against implied repeal are unpersuasive.
Urmanski contends that “[s]imply because other statutes regulate the same subject matter of abortion doesn’t establish an implied repeal,” because “where there are two affirmative statutes on the same subject, one will not repeal if both can stand together.”
Urmanski appears to argue that the legislature cannot impliedly repeal an earlier statute by enacting entire statutory packages that regulate the entire field of the earlier statute, and that do so in far greater specificity for that matter. Instead, he appears to argue that an implied repeal can only occur where a single subsequent statute, on its own, substitutes the earlier statute. Instead, he appears to argue that an implied repeal can only occur where a single subsequent statute, on its own, substitutes the earlier statute. If anything, the fact that the legislature has enacted multiple statutes in chapters 940 and 253 that together regulate the entire field of abortion provides greater evidence of a legislative intent to displace Section 940.04(1).
Urmanski’s argument that the rule of lenity should not inform this Court’s interpretation of Section 940.04(1) is unpersuasive.
(The rule of lenity says that if a criminal law is ambiguous, it should be interpreted in the way most favorable to the defendant.)
If the Court concludes that Section 940.04 was applicable to consensual abortions when enacted, any uncertainty about what conduct is criminal —resulting from subsequent legislative changes, including the enactment of Section 940.15 and Wisconsin’s broader statutory framework for lawful abortions — should be strictly construed in favor of the accused.