State v. Scott E. Ziegler

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Appeal No. 2010AP2514-CR Cir. Ct. No. 2008CF120
WISCONSIN COURT OF APPEALS

DISTRICT I
STATE OF WISCONSIN,
PLAINITFF-RESPONDENT, FI
Vv. NW 16, 2011
ScorT E. ZIEGLER, Acting Gerk of
Suprene Court
DEFENDANI-APPELLANT.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Brown, C,J., Neubauer, P.J., and Neal Nettesheim, Reserve
Judge.

Pursuant to WIS. STAT. RULE 809.61 this court certifies the appeal in
this case to the Wisconsin Supreme Court for its review and determination.

ISSUE

In State v. Bouden, 2007 WI App 234, 306 Wis. 2d 393, 742
N.W.2d 332, we analyzed WIS. STAT. § 948.31(2), which deals with criminal
charges for interference with custody of children. There, we stated that
withholding custody of a child “addresses a situation where the person who takes
the child has some initial permission to do so.” We certify to ask the supreme
court to determine whether Bowden's interpretation is contrary to the plain
language of the statute.

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DISCUSSION
Scott E. Ziegler appeals his conviction for one count of repeated
sexual assault of a child, one count of interference with child custody, two counts
of child enticement, one count of second-degree sexual assault by use of force,
two counts of child abuse, and seven counts of second-degree sexual assault of a
child. The charges stem from his interactions with several teenage girls. He raises
several issues, but in this certification, we only address his argument that there
was insufficient evidence to convict him for interference with child custody. That
conviction was based on a time when he allowed a runaway minor to stay with
him for several days. At the time, he was a stranger to the mother of the child,
who therefore did not give him any sort of permission to take or look after her
daughter.
Ziegler’s argument is simple: he contends that based on the
language in Bowden, the conviction must be overturned because he never had
“initial permission” from the minor’s mother. See Bowden, 306 Wis. 2d 393, ¶18.
The State counters that the language Ziegler relies on is dicta, and the plain
language of WIS. STAT. § 948.31(2) contains no “initial permission” requirement.
WISCONSIN STAT. § 948.31(2) states that “[w]hoever causes a child
to leave, takes a child away or withholds a child for more than 12 hours from the
child’s parents … without the consent of the parents, the mother or the father with
legal custody, is guilty of a Class I felony.” We agree with the State that there is
nothing in the statutory language to indicate that in order to withhold custody from
a parent, a defendant must have had “initial permission” from the parent to take
the child. Compare Bowden, 306 Wis. 2d 393, ¶18, to § 948.31(2). Bowden’s
interpretation seems to add language to the statute (and an element to the crime),

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which is something we may not do. See Cavey v. Walrath, 229 Wis. 2d 105, 111,
598 N.W.2d 240 (Ct. App. 1999). However, despite our disagreement with
Bowden’s interpretation, we are bound by it unless it is dicta. See Cook v. Cook,
208 Wis. 2d 166, 189-90, 560 N.W.2d 246, 256 (1997) (“only the supreme court,
the highest court in the state, has the power to overrule, modify or withdraw
language from a published opinion of the court of appeals”).1
We did not intend for our reasoning in Bowden to be dicta. Instead,
“when an appellate court intentionally takes up, discusses and decides a question
germane to a controversy, such a decision is not dicta but is a judicial act of the
court which it will thereafter recognize as a binding decision.” State v. Sanders,
2007 WI App 174, ¶25, 304 Wis. 2d 159, 737 N.W.2d 44, aff’d on other grounds,
2008 WI 85, 311 Wis. 2d 257, 752 N.W.2d 713.2 In Bowden, we analyzed
whether Bowden could be convicted of causing two boys to “leave” their parents
after he convinced them, over their initial objections, to come with him rather than
walking straight home from school. Bowden, 306 Wis. 2d 393, ¶¶2-3, 11.
Bowden argued he did not cause the children to leave their mother because they
were not with their mother when the incident occurred. Id., ¶17. Specifically, he
1 We candidly admit that two of the three judges to this certification were members of
the panel in State v. Bowden, 2007 WI App 234, 306 Wis. 2d 393, 742 N.W.2d 332. We also
point out that the condition precedent of “initial permission” as a necessary component of
“withholding a child more than 12 hours” was the argument of the State, which argument we
agreed with and adopted. Of course, now the State expresses a contrary view.
2 We recognized that Zarder v. Humana Ins. Co., 2010 WI 35, ¶52 & n.19, 324 Wis. 2d
325, 782 N.W.2d 682, highlighted two competing lines of cases regarding the definition of dicta.
State v. Sartin, 200 Wis. 2d 47, 60 n.7, 546 N.W.2d 449 (1996), defines dictum as “a statement
or language expressed in a court’s opinion which extends beyond the facts in the case and is
broader than necessary and not essential to the determination of the issues before it.” Under
either definition, we do not think the Bowden statements cited by Ziegler, Bowden, 306 Wis. 2d
393, ¶18, are dicta.

No. 2010AP2514-CR
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claimed that the language “withholds a child for more than 12 hours” supported
his interpretation because it “shows that the legislature contemplated situations
where the child is not with the parent so, implicitly, the other two methods of
interference must apply only to those situations where the child initially is with the
parent.” Id. We disagreed.
Instead, we stated that the withholding method of interference was
focused on permission, not the parent’s presence:
The withholding method addresses a situation where the
person who takes the child has some initial permission to
do so. The other two methods speak to situations where the
parent has given no permission to the person who “causes a
child to leave” or “takes a child away.” See WIS. STAT.
§ 948.31(2). Bowden’s argument that “causes ... to leave”
means from the parent’s actual presence suggests that
parental custody ends when the child is out of the parent’s
presence. Without commenting on the merit of that
position, to adopt it would require that we add words to the
statute that are not there. We decline to do so.
Id., ¶18 (citation omitted). So, in Bowden, the “withhold[ing] a child” language in
§ 948.31(2) was central to the defendant’s argument and our interpretation of it
was the basis of our analysis of the statute in that case. In other words, we
intentionally took up Bowden’s argument, decided it in a manner consistent with
the State’s position and it was therefore germane to the issue in controversy. See
Zarder v. Humana Ins. Co., 2010 WI 35, ¶52 n.19, 324 Wis. 2d 325, 782 N.W.2d
682 (citations omitted). It was also “essential to the determination” of the issues
before us. See id.
Thus, we are left with two options. We may follow Bowden and
express our disagreement with it or we may certify. Cook, 208 Wis. 2d at 190. In
this case, following Bowden would require us to overturn a conviction that we
think is statutorily sound. And although Ziegler raises three other issues, our

No. 2010AP2514-CR
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review of the case leads us to conclude we could not decide it without reaching
this one. We therefore respectfully certify this case to the supreme court.

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