State ex rel. Kalal v. Circuit Court for Dane Cty. (In re Criminal Complaint) - 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110

Rule:

In Wisconsin, a district attorney is primarily responsible for the decision whether to charge a person with a crime. Wis. Stat. § 968.02(1) (2001-02) states the general rule that except as otherwise provided in § 968.02, a complaint charging a person with an offense shall be issued only by a district attorney of the county where the crime is alleged to have been committed. There are exceptions to this rule, however. Section 968.02(3) (2001-02) provides that if a district attorney refuses or is unavailable to issue a complaint, a circuit judge may permit the filing of a complaint, if the judge finds there is probable cause to believe that the person to be charged has committed an offense.

Facts:

Respondent Michele Tjader, an attorney, complained to the police department and the district attorney (DA) about petitioners' alleged theft. She was told that she was free to proceed legally in whatever manner she believed necessary. Respondent then filed a motion in Dane County Circuit Court requesting the issuance of a criminal complaint against petitioners under Wis. Stat. § 968.02(3). The motion also asserted that the district court attorney has refused to charge the defendants. Respondent’s motion was granted. Petitioners filed a motion for reconsideration, arguing that there was no showing that the district attorney had “refused” to issue the complaint. The trial court denied petitioners’ motion for reconsideration. The court of appeals denied petitioners’ request for a supervisory writ, and they sought further review.

Issue:

Did the circuit judge err in authorizing the filing of a criminal complaint against petitioners? 

Answer:

No.

Conclusion:

The court found that petitioners had no standing to seek reconsideration under § 968.02(3), as the statute directed an ex parte proceeding and no cross-examination. The court found that issuance of a supervisory writ under Wis. Stat. § 809.51(1) (2001-02) was properly denied, as there was no showing of a violation of a plain duty by the judge. The court noted that while in Wisconsin, the district attorney was primarily responsible for the decision whether to charge a person with a crime, the rule had exceptions, such as when the district attorney “refuses or is unavailable” to issue a complaint; in that case, the circuit judge may permit the filing of a complaint. After a lengthy discussion on statutory interpretation, the court found that "refuses" was to be interpreted by its plain dictionary definition and that an explicit refusal was not necessary prior to a judge's authorization of a private complaint.