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¶ 11.
In Hopkins, the supreme court confirmed Wittrock’s holding and addressed a question left open by the earlier case. The defendant in Hopkins argued that “separate occasions” meant separate incidents of crime, not multiple convictions stemming from a single course of conduct. 168 Wis. 2d at 805. The supreme court disagreed, holding that each conviction is a “separate occasion” for purposes of the statute. Id. Thus, the statute is triggered when a defendant is convicted of three qualifying crimes, regardless whether they were committed on separate occasions and “regardless of the number of court proceedings. Id. at 805, 80809. The court focused on the fact of additional criminal activity because that was what the Legislature intended the repeater provision to address. Id. at 810, 813. The Hopkins court made clear that “the quantity of the crimes” was the critical factor and that convictions imposed in the same proceeding could each be counted. Id. at 808–10.
¶ 12.
I conclude that “separate occasions” in Wis. Stat. § 301.46(2m)(am) should be interpreted as referring to the number of convictions, consistent with the supreme court’s interpretation of the repeater statute in Wittrock and Hopkins. In both statutes, the term is used in a similar way: to count convictions either as a measure of criminality or potential dangerousness to the community. It is the fact of additional criminality, as measured by multiple convictions, that matters.
¶ 13.
The timing of the legislation that created the sex offender bulletin law supports this view. The legislation, 1995 Wis. Act 440, postdates Wittrock and Hopkins. This is notable because courts “presume that the legislature acts with full knowledge of existing statutes and how the courts have interpreted these statutes.” State v. Victory Fireworks, Inc., 230 Wis. 2d 721, 727, 602 N.W.2d 128
(Ct. App. 1999). “The legislature is presumed to act with full knowledge of existing case law when it enacts a statute. A statute must be interpreted in light of the common law and the scheme of jurisprudence existing at the time of its enactment.” Strenke, 279 Wis. 2d 52, ¶ 28 (citing Czapinski v. St. Francis Hosp., 2000 WI 80,
¶ 22, 236 Wis. 2d 316, 613 N.W.2d 120, and State v. Hansen, 2001 WI 53, ¶ 19,
243 Wis. 2d 328, 627 N.W.2d 195). When the Legislature chose to use “separate occasions” to count convictions in section 301.46(2m)(am), it did so against the backdrop of clear precedent interpreting that term to mean the quantity of convictions, not the number of proceedings or criminal incidents. It should be presumed that the Legislature intended “separate occasions” would have the same meaning in section 301.46(2m)(am).
¶ 14.
Further, terms are read in the context of surrounding statutory provisions. Kalal, 271 Wis. 2d 633, ¶ 46. Wisconsin Stat. § 301.46 reflects the Legislature’s concern with offenders’ potential danger to the public. The number of convictions, not court proceedings, best measures that risk.
¶ 15.
For example, offenders convicted “on one occasion only” are not automatically subject to a bulletin. However, a bulletin may still issue if “necessary to protect the public.” Wis. Stat. § 301.46(2m)(a)1.2. For one conviction, the statute does not require a bulletin because it recognizes that onetime offenders typically are not among the most dangerous. Yet it recognizes that the proxy may not always be accurate, and so provides discretion to issue a bulletin when an individual poses special dangers to the public. In contrast, for offenders with convictions on two or more occasions, the bulletin is mandatory. Wis. Stat. § 301.46(2m)(am)1.2. The statute assumes that a bulletin for these offenders is needed to protect the public. The link between offenses and danger makes sense only if the provision refers to the number of convictions, not the number of court appearances, as a single proceeding may address multiple crimes.
¶ 16.
Also telling is that mandatory bulletins are required for offenders released from civil commitment under Wis. Stat. ch. 980, i.e., “sexually violent persons.” Wis. Stat. § 301.46(2m)(am); see also Wis. Stat. § 980.01(6)(7) (defining “sexually violent person”). Like multiple convictions, that status serves as a proxy for heightened danger to the public. The presumption is that the individual adjudicated a sexually violent person and subject to mandatory institutionalization remains more dangerous than a typical offender. This again demonstrates that the Legislature’s focus was on dangerousness, not court proceedings.
¶ 17.
Further, the policies underlying the sex offender law are best served by this interpretation. The sex offender registration and notification laws, Wis. Stat.
§§ 301.45 and 301.46, “reflect an ‘intent to protect the public and assist law enforcement’ and are ‘related to community protection.’” Kaminski, 245 Wis. 2d 310, ¶ 41 (citing Bollig, 232 Wis. 2d 561, ¶¶ 21–22). As the U.S. Supreme Court has recognized, these kinds of policy goals are properly part of sex offender regulations, and those regulations may properly treat offenders “as a class” based on dangerousness. Smith v. Doe, 538 U.S. 84, 103 (2003) (generally discussing sex offender regulations). These goals, including the goal of assisting law enforcement, are served by applying section 301.46(2m)(am) to require mandatory law enforcement bulletins when an offender has multiple convictions.
¶ 18.
I conclude that convictions on “separate occasions” in Wis. Stat.
§ 301.46(2m)(am) refers to multiple convictions, regardless whether they were part of the same proceeding, occurred on the same date, or were included in the same criminal complaint.
            Very truly yours,
            BRAD D. SCHIMEL
            Wisconsin Attorney General
BDS:ADR:jrs            
1
The statute applies both to convictions and to findings of not guilty by reason of mental disease or defect. The remainder of this opinion only discusses the statute in terms of convictions, but the analysis holds true for findings of not guilty for reason of mental disease or defect.
2
You pose your question in two ways: whether it matters if convictions occur at the same time, and whether it matters if the convictions stem from counts in the same complaint. The discussion that follows applies equally to both questions.
3
Although the Wisconsin Supreme Court has noted that Wis. Stat. § 301.46(2m)(am) refers to someone who “has been convicted of two or more sex offenses,” the court has not specifically analyzed the meaning of “separate occasions” in the provision. See Kaminski, 245 Wis. 2d 310, ¶ 33 n.8.
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