Wisconsin Legislature: oag2-20

¶ 10.

The same is true when an offender who still owes restitution dies while in prison. Wisconsin Stat. § 973.20(1r) provides that unpaid restitution is enforceable as a civil judgment “if the defendant is not placed on probation, extended supervision, or parole.” When an offender dies in prison, he is “not placed on probation, extended supervision, or parole.” Id. This plain language thus supports enforcing unpaid restitution obligations as civil judgments against an offender who dies in prison, just as against one who dies while under supervision.

¶ 11.

The statutory language also shows that the circuit court has the authority to enter a civil judgment after the offender’s death. Some pending causes of action “abate[ ]” when a litigant dies, depriving the court of authority to hear the case. See, e.g., Socha v. Socha, 183 Wis. 2d 390, 393, 515 N.W.2d 337 (Ct. App. 1994) (party’s death abates a divorce action, divesting the court of jurisdiction to hear the case). But even for causes of action where common law abatement would otherwise apply, the Legislature can supersede it by statute. In Davis v. Rahkonen, 112 Wis. 2d 385, 387–88, 332 N.W.2d 855 (Ct. App. 1983), for example, the court of appeals held that a statute providing that circuit courts “shall” grant judgments for attorney services applied even after a party to the action died. Although abatement would otherwise have terminated the action and precluded such judgments, the statutory language indicated that the Legislature intended to allow judgments after a party’s death. Id. Here, Wis. Stat. § 973.20(1r) uses the broad term “terminat[e]” to trigger a crime victim’s right to a civil judgment, indicating that common law abatement does not apply and instead that a court may enter a civil judgment even if the offender dies while in prison or on supervision.

¶ 12.

And even in an action that would otherwise abate upon a party’s death, the circuit court may carry out acts that are merely clerical after the party’s death. For example, if a court has orally announced a judgment before the action abated, the court may reduce the judgment to writing after the party’s death. Pettygrove v. Pettygrove, 132 Wis. 2d 456, 461, 393 N.W.2d 116 (Ct. App. 1986). Entering a judgment is then a “clerical duty” needed only to “preserve the evidence of the judgment.” Barbian v. Lindner Bros. Trucking Co., 106 Wis. 2d 291, 298–99,
316 N.W.2d 371 (1982) (quoting Comstock v. Boyle, 134 Wis. 613, 617, 114 N.W. 1110 (1908)). Like the oral judgment in Pettygrove, an order for criminal restitution resides in a judgment of conviction that was entered while the offender lived. After the offender dies, the written civil judgment simply provides evidence of the pre-existing restitution judgment so that the crime victim can collect the amount owed. Thus, the sentencing court retains the power to enter a civil judgment after the offender dies, even if it no longer has the authority to make judicial decisions in the criminal case.[4]

¶ 13.

The request for an opinion also asks whether DOC has the authority or affirmative legal duty to request that sentencing courts reduce unpaid restitution to a civil judgment after an offender’s death. I conclude that, although DOC does not have an affirmative legal duty to do so, it may choose to make such requests.

¶ 14.

The most relevant provision, Wis. Stat. § 973.09(3)(b), requires DOC to notify the sentencing court that unpaid restitution exists as probation nears its end, but it does not require DOC to provide such a notification under other circumstances, let alone request that unpaid restitution be reduced to a civil judgment. Government officials have no duty to act absent a “clear, specific legal right that is free from substantial doubt.” State ex rel. Lewandowski v. Callaway, 118 Wis. 2d 165, 171,
346 N.W.2d 457 (1984). The Wisconsin Legislature could have expressly required DOC to ask sentencing courts to enter judgments for unpaid restitution when an offender dies, and the absence of any express provision indicates that no such duty exists.

¶ 15.

I conclude, however, that DOC may permissibly either notify the sentencing court that unpaid restitution exists upon an offender’s death or ask the court to reduce unpaid restitution to a civil judgment. No statute bars DOC from doing so, and because asking a court to act accordingly would not require DOC to exercise its own statutory authority over the offender, such action would not implicate limits on DOC’s authority. Cf. Adams v. State Livestock Facilities Siting Review Bd., 2012 WI 85, ¶ 62, 342 Wis. 2d 444, 820 N.W.2d 404 (“[A]n administrative agency has ‘only those powers which are expressly conferred or which are necessarily implied by the statutes under which it operates.’” (citation omitted)).

¶ 16.

DOC’s ability to request civil restitution judgments furthers the sound public policy, embodied in both the state constitution and statutes, of ensuring that crime victims receive the restitution they are due. Indeed, a contrary result could undermine crime victims’ right to restitution. Because relevant offenders were under DOC’s authority upon their deaths due to their incarceration or supervision, DOC would be in the best position to notify the sentencing court of any unpaid restitution that should be reduced to a civil judgment. Leaving the task of obtaining civil restitution judgments to crime victims, district attorneys, or circuit courts risks some unpaid restitution going unnoticed, contrary to our state constitution’s command
that Wisconsin “shall ensure that crime victims have . . . the . . . privilege[ ] and protection[ ] . . . [of] restitution.” Wis. Const. art. I, § 9m. To avoid this troublesome result, it would be advisable for DOC to begin assisting circuit courts, district attorneys, and crime victims with this important task.

¶ 17.

I conclude that sentencing courts may enter a civil judgment for unpaid restitution where an offender dies while incarcerated or under DOC supervision. While DOC is not obligated to ask the court to enter such a judgment, it may choose to do so.

Sincerely,

Joshua L. Kaul

Attorney General

JLK:CTR:jrs

Wisconsin Stat. § 973.20(11)(f) does not answer the question you ask because DOC might not be able to recover all the outstanding restitution from “the [deceased] inmate’s wages or other moneys” to which DOC has access. The issue still arises of whether the sentencing court may enter a civil judgment for the amount of any restitution that remains unpaid after DOC exercises its authority under this statute.

The request for an opinion asks whether a circuit court may only enter a civil judgment
for unpaid restitution under the two specific provisions cross-referenced in Wis. Stat.
§ 950.04(1v)(r), which address juvenile restitution and restitution as a probation condition.
I conclude that no sound reason exists to interpret Wis. Stat. § 950.04(1v)(r) as limiting crime victims’ right to judgments for unpaid restitution to only those situations. This reading would conflict with Wis. Stat. § 973.20(1r) and Wis. Const. art. I, § 9m, which guarantee crime victims’ right to restitution when all forms of supervision end, not just probation. See State v. Gilbert, 2012 WI 72, ¶ 43, 342 Wis. 2d 82, 816 N.W.2d 215 (“[I]t is this court’s duty to harmonize the statutes, not ignore one section, while enforcing another.”).

The request for an opinion asks whether “a criminal sentence terminates immediately upon the death of a person in prison or on probation, extended supervision, or parole.” The narrower issue of how to interpret the term “terminat[e]” in Wis. Stat. § 973.20(1r) answers that question as it relates to civil judgments for unpaid restitution upon an offender’s death.

Note, however, that a defendant’s death does not deprive the court of appeals of jurisdiction over an ongoing criminal appeal. See State v. McDonald, 144 Wis. 2d 531, 536, 424 N.W.2d 411 (1988).