Wisconsin Legislature: Arrest; Criminal Law; University; Words And Phrases;

79 Op. Att'y Gen. 109 (1990)

Arrest; Criminal Law; University; Words And Phrases;

The provisions of section 968.075, Stats., apply to roommates living in university residence halls, whether privately or state owned. If the criteria requiring arrest under section 968.075(2) exist, the law enforcement officer must make a custodial arrest. OAG 19-90

June 15, 1990

79 Op. Att'y Gen. 109 (1990)

JUDITH A. TEMBY,

Secretary

Board of Regents of the

University of Wisconsin System

79 Op. Att'y Gen. 109 (1990)

You have requested my opinion as to whether the provisions regarding mandatory arrest in section 968.075, Stats., apply to roommates living in university residence halls or privately owned residence halls serving students at the University of Wisconsin campuses. Secondly, you ask, if section 968.075 applies to such roommates, what discretion may law enforcement officers utilize in applying the mandatory arrest provision of that statute?

79 Op. Att'y Gen. 109 (1990)

I conclude that the provisions of section 968.075 do apply to roommates living in residence halls regardless of whether the halls are owned by the university or private persons. Section 968.075 was created by 1987 Wisconsin Act 346. Section 968.075(2) creates a mandatory custodial arrest situation whenever an officer has probable cause to believe a suspect has committed a crime which meets the statutory definition of domestic abuse and when one or both of two further conditions are met. One must therefore look to the definition of domestic abuse to determine whether or not this statute comes into play in the dormitory roommate circumstance. Section 968.075(1)(a), as amended by 1989 Wisconsin Act 293, defines "domestic abuse" as follows:

79 Op. Att'y Gen. 109 (1990)

"Domestic abuse" means any of the following engaged in by an adult person against his or her spouse or former spouse, against an adult with whom the person resides or formerly resided or against an adult with whom the person has created a child:

79 Op. Att'y Gen. 109 (1990)

1. Intentional infliction of physical pain, physical injury or illness.

79 Op. Att'y Gen. 109 (1990)

2. Intentional impairment of physical condition.

79 Op. Att'y Gen. 109 (1990)

3. A violation of s. 940.225(1), (2) or (3).

79 Op. Att'y Gen. 109 (1990)

4. A physical act that may cause the other person reasonably to fear imminent engagement in the conduct described under subd. 1, 2 or 3.

79 Op. Att'y Gen. 109, 110 (1990)

Whether section 968.075 applies to roommates in residence halls turns on whether they fit in one of the categories of persons listed above. I will assume that the roommates are not married, have never been married to each other, and do not have a child in common. The issue, therefore, is whether the adult perpetrator (one roommate) commits an act covered by the statute against "an adult with whom the person resides or formerly resided." In short, the question is whether university residence hall roommates are "residing together" within the meaning of the statute. This requires an interpretation of the meaning of the term "resides together" as used in this statute.

79 Op. Att'y Gen. 109, 110 (1990)

The courts have clearly set forth the procedures for statutory interpretation. As stated in

State v. Larson

, 133 Wis. 2d 320, 324, 395 N.W.2d 608 (Ct. App. 1986):

79 Op. Att'y Gen. 109, 110 (1990)

Any statutory analysis must begin with the language of the statute itself.

State ex rel. Melentowich v. Klink

, 108 Wis.2d 374, 379, 321 N.W.2d 272, 274 (1982). The initial inquiry of the court in construing a statute is whether the statutory language is clear or ambiguous.

In re I.V.

, 109 Wis.2d at 409, 326 N.W.2d at 128-29. A statute is ambiguous if reasonably well-informed persons could differ as to its meaning.

Kollasch v. Adamany

, 104 Wis.2d 552, 561, 313 N.W.2d 47, 51-52 (1981). Once the statute is determined to be ambiguous, it is the court's task to "achieve a reasonable construction which will effectuate the statute's purpose."

Melentowich

, 108 Wis.2d at 380, 321 N.W.2d at 275. In this regard, extrinsic materials, particularly the statute's legislative intent, can be valuable interpretive aids.

Milwaukee County v. DILHR

, 80 Wis.2d at 452, 259 N.W.2d at 121.

79 Op. Att'y Gen. 109, 111 (1990)

Two interpretations of the term "resides" could be offered. First, it could be argued that "resides together" means that this is the person's permanent residence or legal domicile. Since many college students maintain a permanent residence or legal domicile with their parents, one might conclude that they are not "residing together" within the meaning of this statute. It can be argued that this interpretation is sensible in light of the fact that students are frequently assigned roommates and do not voluntarily choose a particular roommate.

79 Op. Att'y Gen. 109, 111 (1990)

On the other hand, it can be argued that "resides together" means merely a current dwelling situation, that the persons are living together in a day-to-day relationship, regardless of where their permanent residence or legal domicile may be located. It may be argued that since the pressures attendant to a day-to-day household relationship will exist in any living arrangement regardless of its voluntary nature, this interpretation addresses precisely the evil the domestic abuse statute is designed to reach and correct.

79 Op. Att'y Gen. 109, 111 (1990)

I believe, therefore, that the term "resides" is ambiguous as used in the statute. As stated in

In re National Discount Corporation

, 196 F. Supp. 766, 769 (1961):

79 Op. Att'y Gen. 109, 111 (1990)

In statutory construction, it is settled that "reside" is an elastic term to be interpreted in the light of the purpose of the statute in which such term is used; "reside" is a term whose statutory meaning depends upon the context and purpose of the statute in which it occurs. (Cites omitted.) . . . [W]hile a person may be said to have but one domicile, he may have several residences. (Cite omitted.)

79 Op. Att'y Gen. 109, 111 (1990)

Where "resides" or "residence" is interpreted by the courts to mean something akin to domicile the statutes are generally dealing with entitlement to legal rights or obligations: right of election against a will,

Estate of Daniels

, 53 Wis. 2d 611, 193 N.W.2d 847 (1972); entitlement to employment,

Eastman v. City of Madison

, 117 Wis. 2d 106, 342 N.W.2d 764 (Ct. App. 1983). Similarly where our Legislature has defined residence, specifically for purposes of a particular section, to mean something akin to domicile the section is dealing with entitlement to a legal right or obligation: campground registration fees, section 27.01(10); fish and game licenses, section 29.01(12); risk sharing plans, section 619.10(9); public assistance, section 49.01(8g); Mental Health Act, section 51.01(14); student grants, section 39.30(1)(e); and student loans, section 39.32(1)(b).