author: SHIRLEY S. ABRAHAMSON, C.J.

text:
    Barbara A. Schultz, individually and as Special Administrator for the Estate of Lindsey Schultz, and Roger Schultz, individually, Mitchell Schultz, individually, Russell Schultz, individually, and 3M Medical Plan, Plaintiffs-Respondents-Petitioners, v. Roger D. Natwick, M.D., ORCC, Inc., f/k/a Red Cedar Clinic, S.C., d/b/a Red Cedar Clinic, Red Cedar Clinic-Mayo Health System, Ltd., and Physicians Insurance Company of Wisconsin, Inc., Defendants-Appellants, Wisconsin Patients Compensation Fund, Defendant-Co-Appellant.
    Supreme Court

      No. 00-0361.

      Oral argument September 11, 2002.

    Decided November 19, 2002.

    2002 WI 125
    (Also reported in 653 N.W.2d 266.)

      For the plaintiffs-respondents-petitioners there were briefs by Terry L. Wade and Robins, Kaplan, Miller & Ciresi LLP, Minneapolis, Minnesota, and oral argument by Terry L. Wade.

    For the defendants-appellants there was a brief by Michael B. Van Sicklen and Foley & Lardner, Madison, and oral argument by Michael B. Van Sicklen.

    For the defendant-co-appellant there was a brief by Mark E. Larson and Gutglass, Erickson, Bonville, Sei-bel & Falkner, S.C., Milwaukee, and oral argument by Mark E. Larson.

      An .amicus curiae brief was filed by Timothy J. Aiken, David M. Skoglind, and Williams C. Gleisner, III, on behalf of the Wisconsin Academy of Trial Lawyers.
   SHIRLEY S. ABRAHAMSON, C.J.

¶ 1. This is a review of a published court of appeals decision, Schultz v. Natwick, 2001 WI App 281, 249 Wis. 2d 317, 638 N.W.2d 319.

¶ 2. The court of appeals reversed the judgment of the Circuit Court for Dunn County, Rod W Smeltzer, Judge. The circuit court entered judgment for the plaintiffs. The circuit court concluded that the legislature's retroactive increase of the cap on damages for loss of society and companionship in wrongful death cases, from $150,000 to $500,000, was constitutional. The circuit court judgment preceded Neiman v. American National Property & Casualty Co., 2000 WI 83, 236 Wis. 2d 411, 613 N.W.2d 160. In Neiman this court applied the balancing test set forth in Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995), and declared the retroactive increase of the cap on these damages unconstitutional.

¶ 3 The court of appeals reversed the judgment of the circuit court. Relying on Neiman, the court of appeals held that the $150,000 cap, not the $500,000 cap, applies in the present case, because the retroactive increase of the cap on damages recoverable for loss of society and companionship in wrongful death actions violates the due process rights of the defendants in the present case. We affirm the decision of the court of appeals.

¶ 4. The issue presented is whether the retroactive increase of the cap for damages for loss of society and companionship in wrongful death actions enacted by 1997 Wis. Act 89 violates a tortfeasor's constitutional right to due process. More specifically, the issue presented is the applicability of the Neiman decision to the present case.

¶ 5. We conclude, as did the court of appeals, that the Neiman decision governs this case. The retroactive increase of the cap on damages for the loss of society and companionship in wrongful death cases enacted by 1997 Wis. Act 89 is unconstitutional. It is unnecessary for courts to apply the Martin balancing test anew to the particular facts of every case challenging the constitutionality of the retroactive increase of the cap.

¶ 6. The facts of this case are tragic. Lindsey Schultz died on December 1, 1995, at the age of thirteen, from complications arising out of an appendectomy performed by Dr. Roger Natwick, an employee or agent of Red Cedar Clinic. Lindsey's parents, Barbara and Roger Schultz, and her minor siblings, brought suit against defendants Dr. Natwick, Red Cedar Clinic, and their insurer, Physicians Insurance Company of Wisconsin (PIC). The Wisconsin Patients Compensation Fund (Fund) was joined as a defendant pursuant to Wis. Stat. § 655.27(5) (1995-96).

¶ 7. The parties agree that the plaintiffs' cause of action for wrongful death accrued on December 1,1995, the date of the alleged malpractice and the injury. The parties further stipulated that if the case were tried to a jury, the defendants would not contest liability and the plaintiffs would be awarded damages for loss of society and companionship of no less than the $500,000 cap.

¶ 8. At the time of Lindsey Schultz's death, Wis. Stat. § 895.04(4) (1995-96) placed a cap on damages in wrongful death actions for loss of society and companionship at $150,000. On April 13, 1998, the legislature adopted 1997 Wis. Act 89 at the urging of Lindsey Schultz's mother and others to enable families to pursue fair compensation for their losses. The Schultz family was instrumental in attaining the passage of the new Act. Then-Governor Tommy Thompson called the Act the "Justin-Lindsey Bill" in memory of Lindsey Schultz and Justin Sky Millar, who had also died tragically during a medical procedure.

¶ 9. The Act increased the cap on damages in wrongful death cases involving a minor for loss of society and companionship from $150,000 to $500,000. The Act increasing the cap on damages expressly states that it applies to actions "commenced on the effective date" of the amendment, namely April 28, 1998. This provision results in the increased cap applying retroactively to causes of action that accrued prior to April 28, 1998, if the lawsuit is commenced on or after April 28, 1998.

¶ 10. The plaintiffs filed their suit on May 11, 1998. Thus, under the express terms of the Act, the plaintiffs would receive the benefit of the retroactive increase of the cap and their maximum recovery would be set at’ $500,000.

¶ 11. The plaintiffs urge this court to hold that the retroactive increase of the cap is constitutional as to them. The plaintiffs argue that the Neiman decision is limited to its facts. They argue that Neiman renders the retroactive increase of the cap unconstitutional only as to the specific claim of the Neimans. They further argue that the Neiman decision requires a court to conduct the Martin balancing test on a case-by-case basis to each claim for damages for loss of society and companionship that accrued before the effective date of the Act, but that was made in a suit brought on or after the effective date of the Act. The defendants argue that the Neiman decision renders the retroactive increase of the cap on these damages unconstitutional for every claim for damages that accrued before the effective date of the amendment.

¶ 12. The interpretation and application of the Neiman decision and the constitutional challenge to the retroactive application of a statute present questions of law that this court determines independent of the circuit court and court of appeals, but benefiting from their analyses.

¶ 13. The facts of the Neiman case are substantially similar to those in the present case. Steve and Kristine Neiman lost a child as a result of an automobile accident on September 5, 1995, when the cap on damages for loss of society and companionship was $150,000. The Neimans' claim for underinsured motorist coverage was filed in August 1998, after the effective date of the Act increased the cap to $500,000. The automobile liability insurance company, American National Property and Casualty Company (ANPAC), argued that the retroactive increase of the cap on damages violated its due process rights.

¶ 14. The Neiman court assessed the constitutionality of the retroactive cap increase by applying the Martin balancing test. Pursuant to Martin, the Ne-iman court weighed the public interest served by retroactive application of the Act against the private interests that are overturned by retroactive application of the Act, including an assessment of any unfairness inherent in such application. The court concluded in Neiman that a tortfeasor's exposure to liability for damages accrues on the date of injury and that a retroactive increase of the cap on damages unfairly alters a tortfeasor's accrued right to fixed damages on that date. In addition, the court determined, over a two-justice dissent, that the public interest served by a retroactive increase of the cap on damages did not outweigh the harm caused by the unsettling of a tortfeasor's expectations. Thus, the Neiman court held that the retroactive application of the increase of the cap on damages to a claim that accrued before the effective date of the Act was unconstitutional.

¶ 15. The Neiman decision did not expressly state whether the court was considering a challenge to the retroactive increase of the cap on the particular facts of that case alone. The language and logic of the Neiman decision, however, plainly extend to all cases affected by the retroactive increase of the cap enacted by 1997 Wis. Act 89 and are not limited to the facts of the Neiman case.

¶ 16. The language of the Neiman decision specifically extends to parties beyond the Neimans and ANPAC. The Neiman decision expressly held that "a retroactive increase in damages available pursuant to Wis. Stat. § 895.04(4) unfairly alters settled property rights without achieving a broad public benefit. As a result, the retroactive element of the statute is unconstitutional under our test set forth in Martin v. Richards (citation omitted)." .

¶ 17. Furthermore, the Neiman decision explained:

Defendants such as ANPAC, as well as individuals who have purchased a specific level of insurance, would reasonably rely upon the law as set forth by the courts and the legislature. The retroactive application of 1997 Wis. Act 89 deprived ANPAC, as well as other defendants in tort actions, of a meaningful notice of the potential increase in exposure to claims or an opportunity to increase premiums to pay the expense of this increased exposure.
. . . The result for ANPAC, and other insurers and insureds, is that the retroactive change in law unfairly overturns settled expectations.

¶ 18. The plaintiffs rightly point out that in contrast to the language just quoted, some of the language in Neiman can be narrowly construed as limiting the holding to Neiman and ANPAC alone. For example, the plaintiffs refer to the following passage framing the issue in the Neiman decision: "The sole issue presented for review is whether retroactive application of the increase in wrongful death damages as provided in 1997 Wis. Act 89 violates ANPAC's due process rights . . . ."

¶ 19. In addition, the plaintiffs point to Martin, 192 Wis. 2d 156, and Matthies v. Positive Safety Manufacturing Co., 2001 WI 82, 244 Wis. 2d 720, 628 N.W.2d 842 (applying the Martin balancing test), arguing that the language this court uses when applying the Martin balancing test indicates a focus on the unfairness to the specific party challenging the retroactive statute.

¶ 20. We agree with the plaintiffs that some of the language in these cases refers to particular litigants and particular facts. One would expect, however, such particularized language. All cases involve particular litigants and particular facts, regardless of the breadth of the holding of the decision. No determination regarding the invalidity of a statute can occur without applying the statute to particular litigants on a specific set of facts.

¶ 21. Accordingly, we must focus not on the passages in Neiman referring specifically to Neiman and ANPAC but on the conclusions reached by the Neiman court.

¶ 22. The plaintiffs take the position that the Neiman decision is intended to govern only those persons and entities similarly situated to the Neimans and ANPAC. The plaintiffs urge that nothing in the Neiman decision suggests that its holding extends to all possible litigants. The plaintiffs further contend that the Martin balancing test requires that a court make an individualized balancing of the parties' particular private interests against the public interest in every case. We do not agree with the plaintiffs that Martin and Neiman require an individualized balancing of interests in every case.

¶ 23. Martin created a two-prong balancing test. Under the first prong, the court considers the private interests overturned by the retroactive legislation in question.

¶ 24. The plaintiffs argue that in Neiman, the private interests of the automobile liability insurance company (ANPAC) were unsettled by the retroactive increase of the cap because ANPAC had set its premiums based upon the earlier $150,000 damages cap. According to the plaintiffs, the defendants in the present case, by contrast, especially Dr. Natwick and PIC, neither ordered their affairs nor calculated their coverage based upon the $150,000 cap. PIC issued its insurance policy to Dr. Natwick and Red Cedar Clinic in 1995, when no cap on damages for loss of society and companionship existed in Wisconsin. The plaintiffs therefore assert that the premiums were based upon the possibility of a judgment against either Dr. Natwick or Red Cedar Clinic far in excess of either $150,000 or $500,000. Furthermore, the plaintiffs argue that Dr. Natwick is covered through his policies and excess coverage provided by the Fund, regardless of the amount of the cap imposed, and that the Fund has never identified harm to any of its interests. Consequently, the plaintiffs urge that the defendants' private interests in this case are different from the private interests of ANPAC and other insurers who adjusted their premiums to account for the imposition of the original $150,000 cap on damages.

¶ 25. We disagree with the plaintiffs' characterization of the private interests in the Neiman decision. The Neiman decision did not limit its holding to insurers who set premiums based upon the $150,000 cap for damages or to insureds who bought policies with particular coverage. There was no specific inquiry in Ne-iman, as the dissent in Neiman points out, into the actual, particular harm suffered by ANPAC or any insureds. The Neiman court engaged in a general discussion of meaningful notice to insureds of a potential increase in exposure to claims and an opportunity to insurers to increase premiums.

¶ 26. While the plaintiffs would have the court focus on the premiums, fees, and assessments charged by PIC and the Fund, the Neiman decision assessed private interests by focusing on the fact that insurers and insureds had a right to have their maximum damages fixed at the date the cause of action accrued and concluded that the retroactive increase of the maximum damages unsettled these private interests. Dr. Natwiek, PIC, and the Fund in the present case similarly had a right to have their liability fixed on the date of injury and their private interests were unsettled by the retroactive increase of the cap.

¶ 27. The court of appeals correctly noted that the Neiman decision assessed private interests "universal to all tort defendants: the substantive right, in cases where damages are specified by statute, to have the amount of liability fixed as of the date of injury."

¶ 28. Under the second prong of the Martin balancing test, the court examines the public interest served by the retroactive increase of the cap to determine whether the public interest outweighs the private interest it overturns. In Neiman, the court identified the public interests purportedly served by the retroactive increase of the cap as "full compensation for loss of society and companionship, deterrence of negligent conduct, and [ensuring] adequate legal representation" for victims. These public interests do not change from litigant to litigant; they remain constant regardless of the particular parties affected.

¶ 29. The Neiman court rejected the argument that a retroactive increase of the cap on damages was necessary to fulfill the public policy goal of "full compensation," concluding that the statutory cap on damages in force on the date of injury defined full compensation. The Neiman court also concluded that a retroactive increase of the cap on damages was not necessary to deter negligent conduct. Finally, the Neiman court also concluded that a retroactive increase of the cap on damages was not necessary to ensure access to the courts and legal counsel for those who have been injured by another's negligence.

¶ 30. The whole tenor and logic of the Neiman decision is that "the public interests identified would arguably support prospective application of an increase in damages for loss of society and companionship; however, these reasons provide weak support for retroactive increases in damages." Without a stronger public interest underlying the retroactive increase of the cap, it remains unfair, according to Neiman, to unsettle tortfeasors' rights to have their liability fixed as of the date the cause of action accrued. The reasoning and conclusions of the Neiman decision apply with equal force in the present case.

¶ 31. In addition to the language and logic of the Neiman decision, the procedural history of the case provides further evidence that the Neiman decision held the retroactive increase of the cap on damages enacted by 1997 Wis. Act 89 unconstitutional in all cases. This court accepted review of Neiman on bypass, aware that there were pending cases throughout Wisconsin presenting the issue of the constitutionality of the retroactive feature of the Act. In fact, this court was specifically aware of the claim of the plaintiffs in the present case. At the time the Neiman case was being considered by this court, nobody, including the plaintiffs in this case, asked that a ruling on retroactivity be limited to the facts presented in the Neiman case. Indeed, in their amicus brief in Neiman, the plaintiffs in the present case argued that the facts of their own case "provide additional reasons and context for why this Court should uphold the Act in [Neiman] and in all other cases to which the Act applies."

¶ 32. The plaintiffs contend that our knowledge of other pending cases presenting the same issue does not compel the conclusion that Neiman declared the retroactive increase of the cap invalid in all cases. While a case accepted on bypass will not always resolve every pending case presenting the same legal issue, the court of appeals correctly surmised that Neiman's broad language was intended to encompass all parties affected by the retroactive increase of the cap adopted by 1997 Wis. Act 89. It would confuse our role as a court of last resort for this court not to encompass all parties affected by the retroactive increase of the cap on damages when the decision does not expressly delineate the limits of the holding.

¶ 33. Finally, the plaintiffs argue that Wis. Stat. § 990.001(11) requires a contrary result. Section 990.001(11) is a legislatively adopted canon of statutory interpretation relating to severability. The canon provides that an unconstitutional provision or an unconstitutional application of a statute may be severed from the constitutional provisions or constitutional applications. Section 990.001(11) reads as follows:

The provisions of the statutes are severable. The provisions of any session law are severable. If any provision of the statutes or of a session law is invalid, or if the application of either to any person or circumstance is invalid, such invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application.

¶ 34. The plaintiffs argue that instead of severing the retroactive increase of the cap on damages, we should sever only those retroactive applications for which the Martin balancing test concludes that due process is violated. The plaintiffs' argument rests on a flawed premise. The plaintiffs assume that Neiman invalidated the retroactive increase of the cap on damages only on the facts of that case. Yet as discussed above, Neiman invalidated the retroactive increase of the cap on damages enacted in 1997 Wis. Act 89 in all cases.

¶ 35. Thus, the court of appeals properly followed Wis. Stat. § 990.001(11) by striking only the retroactive provision of 1997 Wis. Act 89 and leaving in place prospective increases of the cap on damages for the loss of society and companionship claims in wrongful death cases.

¶ 36. We conclude that the court of appeals properly held that Neiman invalidated the retroactive increase of the cap on damages adopted by 1997 Wis. Act 89 for loss of society and companionship in a wrongful death suit generally, including the present case. The only question remaining is whether there is any reason to overturn Neiman.

¶ 37. Ordinarily, of course, we adhere to the principle of stare decisis. Fidelity to precedent ensures that existing law will not be abandoned lightly. When existing law "is open to revision in every case, 'deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results.' " Consequently, this court has held that "any departure from the doctrine of stare decisis demands special justification."

¶ 38. Although the result in Neiman is harsh for families of victims and contrary to the express direction of the legislature, the plaintiffs do not provide any justification, in this case, for overturning the Neiman decision. Their case does not introduce evidence of any changes in the law that might undermine the rationale behind the Neiman decision; it does not show how Neiman renders the law incoherent or inconsistent. Plaintiffs merely present a variation of the facts expressly discussed in Neiman and suggest that the court improperly weighed the public and private interests under the Martin balancing test. However, no change in the law is justified simply by a "case with more egregious facts." Furthermore, as discussed above, these facts were already before the court when it decided Neiman.

¶ 39. In sum, the court affirms the decision of the court of appeals. We conclude, as did the court of appeals, that the Neiman decision governs this case. The retroactive increase of the cap on damages for the loss of society and companionship in wrongful death cases enacted by 1997 Wis. Act 89 is unconstitutional. It is unnecessary to apply the Martin balancing test anew to the particular facts of every case challenging the constitutionality of the retroactive increase of the cap.

By the Court. — The decision of the court of appeals is affirmed.

       The plaintiffs are Barbara A. Schultz, individually and as Special Administrator for the Estate of Lindsey Schultz; Roger Schultz, individually; Mitchell Schultz, individually; Russell Schultz, individually; and 3M Medical Plan.

        See 1997 Wis. Act 89, § 4.

       The defendants are Roger D. Natwick, M.D.; ORCC, Inc., f/k/a Red Cedar Clinic, S.C., d/b/a Red Cedar Clinic; Red Cedar Clinic-Mayo Health System, Ltd.; Physicians Insurance Company of Wisconsin, Inc.; and Wisconsin Patients Compensation Fund.

       The Fifth Amendment to the United States Constitution, which applies to the states via the Fourteenth Amendment, provides in pertinent part: "No person shall... be deprived of life, liberty, or property, without due process of law ...."
      Article I, Section 1 of the Wisconsin Constitution provides: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed."

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

       Wisconsin Stat. § 895.04 (1995-96) states:
      Plaintiff in wrongful death action ... (4) Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $150,000 for loss of society and companionship may be awarded to the spouse, children or parents of the deceased.

        See Record 27, Ex. E.

       The Act also increased the cap on damages in wrongful death cases involving an adult from $150,000 to $350,000. Wisconsin Stat. § 895.04(4) (1995-96) was amended by 1997 Wis. Act 89, § 3 to read as follows:
      Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship may be awarded to the spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of death.
      In addition to increasing the cap on damages, 1997 Wis. Act 89 added minor siblings of the deceased to the class of persons who are permitted to bring a wrongful death claim and recover damages for loss of society and companionship. The issue of whether Lindsey's siblings are proper parties in this action is not before the court.

       1997 Wis. Act 89, § 4 states: "Initial Applicability: (1) This act first applies to actions commenced on the effective date of this subsection." The effective date of the act was, as stated previously, April 28, 1998.

       We note, as did the court of appeals, that Neiman involved a first-party claim against the plaintiffs' underinsured motorist coverage. The tortfeasor and the tortfeasor's liability insurer were not before the court. As a result, the Neiman court often refers to the private interests of the plaintiffs' insurer. In this case, the alleged tortfeasor is a party to the action. The tortfeasor's insurers are also parties. Wisconsin Stat. § 895.04(4) determines the extent of a tortfeasor's liability and does not differentiate between insured and uninsured tortfeasors. See Schultz v. Natwick, 2001 WI App 281, ¶ 12 n.5, 249 Wis. 2d 317, 638 N.W.2d 319.

        Martin v. Richards, 192 Wis. 2d 156, 201, 531 N.W.2d 70 (1995) ("To determine whether a retroactive statute comports with due process we must weigh the public interest served by the retroactive statute against the private interests that are overturned by it.").

        Neiman v. Am. Nat'l Prop. & Cas. Co., 2000 WI 83, ¶ 15, 236 Wis. 2d 411, 613 N.W.2d 160.

        Id., ¶ 20.

        Id., ¶¶ 21-22.

        Id., ¶¶ 24-31. Justice Ann Walsh Bradley (joined by the author of this opinion) dissented, asserting that the public interests in full compensation to injured parties and access to the courts and legal counsel outweigh the private interests. Id., ¶¶ 45-49.

       Id., ¶ 2.

        Id., ¶¶ 21-22.

        Id., ¶ 8.

       Determining when an "as applied" challenge to the constitutionality of a statute is appropriate and when a "facial" challenge to the constitutionality of a statute is appropriate has long troubled courts and scholars alike. See, e.g., Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235 (1994); Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1328 (2000); Alfred Hill, Some Realism About Facial Invalidation of Statutes, 30 Hofstra L. Rev. 647 (2002); Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 Am. U.L. Rev. 359, 421-56 (1998).

        Neiman, 236 Wis. 2d 411, ¶ 18.

       Because we hold that Neiman is dispositive of this case and that no re-balancing of interests is required on these facts, we need not address whether any potential harm to the Fund should be considered when weighing the private interests affected by retroactive application of 1997 Wis. Act 89.

        Neiman, 236 Wis. 2d 411, ¶¶ 40-44 (Bradley, J., dissenting).

        Id., ¶ 20.

        Schultz, 249 Wis. 2d 317, ¶ 18.

        Neiman, 236 Wis. 2d 411, ¶ 24.

        Id., ¶¶ 25-26.

         Id., ¶ 27.

        Id., ¶¶ 28-29.

        Id., ¶ 30.

        Id., ¶ 31.
      At the time briefs were submitted in Neiman, twelve different trial courts had issued decisions on whether the retroactive increase of the cap enacted by 1997 Wis. Act 89 was constitutional. See Brief and Appendix of Plaintiffs-Respondents at 1 n.1, Neiman v. Am. Nat'l Prop. & Cas. Co., 2000 Wl 83, 236 Wis. 2d 411, 613 N.W.2d 160.

       The plaintiffs in the present case filed an amicus brief in Neiman, as did the defendants, PIC and the Fund. The plaintiffs originally filed their amicus brief in Timm v. YMCA, Case No. 99-0195. Timm presented the same issue for review as Neiman and certification was accepted by this court in September 1999. The parties in Timm, however, reached a settlement, and the case was voluntarily dismissed in February 2000. The plaintiffs' amicus brief, along with others, was then transferred to Neiman after that case was subsequently granted review.

       Brief and Appendix of Amicus Curiae Barbara, Roger, Mitchell and Russell Schultz at 13, Neiman v. Am. Nat'l Prop. & Cas. Co., 2000 WI 83,236 Wis. 2d 411, 613 N.W.2d 160; see supra note 31.

       The court of appeals said in its decision in the present case:
      We doubt that the supreme court accepted the case [on bypass] solely to determine the rights of litigants who had one particular type of insurance coverage. Instead, we conclude that the court's references to "other defendants in tort actions," and "other insurers and insureds," and the court's balancing of broadly applicable private interests demonstrate that the court viewed the case as a facial challenge to the statute.

        Schultz, 249 Wis. 2d 317, ¶ 19 (citations omitted).

       Because Neiman addressed an injury stemming from an automobile accident, the plaintiffs also argue that the court should not extend Neiman to medical malpractice cases, where greater deference is due to legislative enactments. This claim is without merit. Neiman struck down the retroactive increase in the damage cap in all wrongful death cases regardless of the underlying cause of death. Moreover, nothing in the language of Wis. Stat. § 895.04(4) distinguishes medical malpractice cases from other types of wrongful death claims.

        State v. Outagamie County Bd. of Adjustment, 2001 WI 78, ¶ 29, 244 Wis. 2d 613, 628 N.W.2d 376.

        State v. Stevens, 181 Wis. 2d 410, 441, 511 N.W.2d 591 (1994) (Abrahamson, J., concurring), cert. denied, 515 U.S. 1102 (1995).

        Outagamie County Bd. of Adjustment, 244 Wis. 2d 613, ¶ 29 (quoting Citizens Util. Bd. v. Klauser, 194 Wis. 2d 484, 513, 534 N.W.2d 608 (1995) (Abrahamson, J., dissenting)).

        State v. Ferron, 219 Wis. 2d 481, 504, 579 N.W.2d 654 (1998) (quoting Ariz. v. Rumsey, 467 U.S. 203, 212 (1984)).

        See State v. Stevens, 181 Wis. 2d 410, 442, 511 N.W.2d 591 (1994) (Abrahamson, J., concurring), cert. denied, 515 U.S. 1102 (1995) ("Justification for departure from precedent could include changes or developments in the law that undermine the rationale behind a decision; the need to make a decision correspond to newly ascertained facts; or a showing that the precedent has become detrimental to coherence and consistency in the law.").

        Stevens, 181 Wis. 2d at 443 (Abrahamson, J., concurring) (quoting Welch v. State Farm Mut. Auto. Ins. Co., 122 Wis. 2d 172, 182, 361 N.W.2d 680 (1985) (Steinmetz, J., dissenting)).


source: Caselaw Access Project

author: DIANE S. SYKES, J.

license: Public Domain

text:
    State of Wisconsin ex rel. Gary Tate, Petitioner-Appellant-Petitioner, v. David H. Schwarz, Administrator, Division of Hearings and Appeals, Respondent-Respondent.
    Supreme Court

      No. 00-1635.

      Oral argument October 9, 2002.

    Decided November 21, 2002.

    2002 WI 127
    (Also reported in 654 N.W.2d 438.)

      For the petitioner-appellant-petitioner there were briefs by Jerome F. Buting, Pamela S. Moorshead and Buting & Williams, S.C., Brookfield, and oral argument by Jerome F. Buting.

    For the respondent-respondent the cause was argued by William C. Wolford, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
    An amicus curiae brief was filed by Robert R. Henek and Henak Law Office, S. C., Milwaukee, on behalf of the Wisconsin Association of Criminal Defense Lawyers.
   DIANE S. SYKES, J.

¶ 1. The issue in this case is whether the state may constitutionally revoke a defendant's probation because he refuses, during court-ordered sex offender treatment, and before the time for a direct appeal has expired or an appeal has been denied, to admit to the crime of which he was convicted.

¶ 2. Gary Tate was convicted of repeated sexual assault of a child after a jury trial in which he testified and denied the offense. He was placed on probation and ordered into sex offender treatment. He was required, as a part of the treatment program, to admit to the offense. He refused, asserting his Fifth Amendment right against self-incrimination. As a result, he was terminated from the program. He moved to modify the conditions of probation, requesting that his treatment be delayed until after his appeal. This motion was denied. In the meantime, his probation was revoked for failure to cooperate with treatment.

¶ 3. On certiorari review of the probation revocation, the court of appeals found a Fifth Amendment violation, but summarily concluded that it had been waived, because Tate had not appealed the denial of his motion to modify the conditions of probation. We reverse.

¶ 4. All parties to this review now agree, as do we, that the revocation of Tate's probation was premised on a legitimate assertion of his Fifth Amendment privilege against self-incrimination, and was therefore unconstitutional. The parties also agree, as do we, that Tate's failure to appeal the denial of his motion to delay sex offender treatment did not constitute a waiver of his right to challenge his probation revocation on Fifth Amendment grounds. Finally, the parties agree that the immunity rule of State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977), as expanded by State v. Thompson, 142 Wis. 2d 821, 419 N.W.2d 564 (Ct. App. 1987), should be applied in these circumstances. We agree and hold that a defendant in this situation cannot be subjected to probation revocation for refusing to admit to the crime of conviction, unless he is first offered the protection of use and derivative use immunity for what are otherwise compulsory self-incriminatory statements.

I. FACTS AND PROCEDURAL HISTORY

¶ 5. Gary Tate was charged in Washington County Circuit Court with repeated sexual assault of a child in violation of Wis. Stat. § 948.025 (1999-2000). The complaint accused him of sexually assaulting his former stepdaughter, D.L., on at least three occasions between August 1993 and August 1996. Tate maintained his innocence in interviews with police, pleaded not guilty, and demanded a jury trial. He testified at trial, denying the offense, but was convicted by the jury. On February 3,1999, the Honorable Annette K. Ziegler stayed a 25-year prison sentence and placed Tate on probation for 20 years, with one year in jail as a condition of probation. The court also ordered Tate to "participate in all counseling programs arranged by probation agent[s], including sex offender treatment."

¶ 6. Tate pursued postconviction relief, including a postconviction motion and an appeal, the latter of which was denied by the court of appeals on July 25, 2001. In the meantime, however, Tate was participating in the sex offender treatment program that had been ordered as a condition of probation.

¶ 7. While serving his one-year jail term, and beginning on February 16, 1999, Tate was released one hour per week for sex offender treatment with Joe Henger, a treatment provider under contract with the Department of Corrections (DOC). Henger placed Tate in a "denier's group" — group therapy designed to help convicted sex offenders overcome their denials.

¶ 8. As a part of the treatment program, Henger required Tate to sign a release authorizing Henger to disclose any information he might acquire to Tate's "probation and parole agent, the Department of Corrections and any officer of court, or any court proceedings." Tate signed the form, but on advice of counsel refused to discuss any facts surrounding the offense for which he was convicted, believing that any statements he made could be used against him if he obtained a new trial as a result of a postconviction motion or appeal.

¶ 9. On April 13, 1999, after eight sessions, Henger terminated Tate from the treatment program because of his resistance to admitting sexual misconduct with the victim and his refusal "to give any details of any sexual inappropriateness with his victim."

¶ 10. On April 19,1999, Tate filed a motion in the circuit court to modify the conditions of his probation to delay his treatment. On May 4, 1999, Tate was served with notice of the initiation of probation revocation; the sole violation cited was his failure to cooperate with sex offender treatment. On June 18, 1999, the circuit court denied Tate's motion to modify his probation conditions. Tate did not appeal the court's order denying this motion.

¶ 11. Tate's revocation hearing was held less than two weeks later, on July 1, 1999. At the hearing, Tate expressed his willingness to undergo treatment, but explained that he had a fear of self-incrimination, based on the release he was required to sign and the presence of other participants in the treatment sessions who could be witnesses against him in future court proceedings should he secure a new trial. He was also concerned that any admission of sexual contact with the victim in his case could support a perjury charge, since he had testified at trial that no sexual misconduct had occurred. Tate's agent had warned him that his probation could be revoked if he refused to admit guilt in treatment. He had not been offered any form of immunity, nor was he advised that any statements he made in treatment would not be used against him in the event of a new trial. To the contrary, the release he was required to sign indicated that all such information would in fact be disclosed to his agent and the DOC and could be used against him "in any court proceedings."

¶ 12. On July 26, 1999, the administrative law judge issued his decision revoking Tate's probation, concluding that Tate had "violated his probation by failing to cooperate and complete Sex Offender Treatment."

¶ 13. After exhausting his administrative appeals, Tate filed a certiorari petition in Washington County Circuit Court. The Honorable Leo F. Schlaefer denied relief and upheld the probation revocation. Tate appealed, and the court of appeals held that there was a Fifth Amendment violation, but nevertheless affirmed, concluding that it had been waived.

¶ 14. More specifically, the court of appeals held that "a probationer with an active direct appeal on the merits cannot be revoked for refusing to admit to the crime." State ex rel. Tate v. Schwarz, 2001 WI App 131, ¶ 11, 246 Wis. 2d 293, 630 N.W.2d 761. The court, however, declined to grant Tate any relief, holding that Tate's failure to separately appeal the circuit court's earlier denial of his motion to delay his treatment constituted a waiver of his Fifth Amendment challenge to the probation revocation:

Tate's obligation, if he wanted to preserve his rights, was to appeal [the denial of his motion to modify the conditions of probation] to this court. He failed to do so. Therefore, we affirm, holding that there is waiver. We emphasize that the appropriate vehicle to seek a remedy is a motion to the circuit court to amend the conditions of probation before there is a revocation hearing. A writ of certiorari, coming after a probation revocation hearing, will result in waiver of a challenge to probation conditions.

Id. at ¶ 14, 246 Wis. 2d at 301. We accepted review.

II. STANDARD OF REVIEW

¶ 15. Certiorari review of a probation revocation order by the Department of Administration, Division of Hearings and Appeals ("the Department"), "is limited to four inquiries: (1) whether the Department acted within the bounds of its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will, not its judgment; and (4) whether the evidence was sufficient that the Department might reasonably make the determination that it did." State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 628-29, 579 N.W.2d 698 (1998). See also Van Ermen v. Dep't of Health & Soc. Servs., 84 Wis. 2d 57, 63, 267 N.W.2d 17 (1978).

¶ 16. This case requires an application of the second inquiry — whether the Department acted according to law — which is a question of law that we review de novo, without deference to the conclusions of the Department, the circuit court, or the court of appeals. See Warren, 219 Wis. 2d at 629.

III. THE PRIVILEGE AGAINST SELF-INCRIMINATION

¶ 17. The self-incrimination clause of the Fifth Amendment to the United States Constitution provides that "[n]o person shall be compelled in any criminal case to be a witness against himself." Because the Fifth Amendment "speaks of compulsion," United States v. Monia, 317 U.S. 424, 427 (1943), the United States Supreme Court "has insisted that the 'constitutional guarantee is only that the witness not be compelled to give self-incriminating testimony.'" McKune v. Lile, 536 U.S. 24, 122 S. Ct. 2017, 2026 (2002) (quoting United States v. Washington, 431 U.S. 181, 188 (1977)). "It is well settled that the government need not make the exercise of the Fifth Amendment cost free." Id. at 41, 122 S. Ct. at 2029. The Department now concedes that the "cost" at issue here — probation revocation, the loss of conditional liberty — constitutes compulsion for purposes of the Fifth Amendment.

¶ 18. The Department also now concedes that compelling a probationer to admit to the crime of conviction before the time for a direct appeal has expired or an appeal has been denied is self-incriminatory within the meaning of the Fifth Amendment. It has been established generally that the Fifth Amendment privilege extends to those already convicted of a crime, and even to those who are in prison or on probation when the incriminating statements are made. Id. at 36, 122 S. Ct. 2017, 2026 ("[t]he privilege against self-incrimination does not terminate at the jailhouse door"); Minnesota v. Murphy, 465 U.S. 420, 438 (1984) ("Our decisions have made clear that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege."); State v. Evans, 77 Wis. 2d 225, 234, 252 N.W.2d 664 (1976) (probationer cannot be revoked for invoking his privilege against self-incrimination absent a grant of immunity); State v. Thompson, 142 Wis. 2d 821, 832, 419 N.W.2d 564 (Ct. App. 1987) (probationer's compelled admissions may not be used against him for any evidentiary purpose in a pending or subsequent criminal prosecution).

¶ 19. More specifically, where the claimed self-incrimination pertains to the crime for which the defendant has already been convicted, we have held that "the Fifth Amendment privilege against self-incrimination extends beyond sentencing as long as a defendant has a real and appreciable fear of further incrimination." State v. Marks, 194 Wis. 2d 79, 95, 533 N.W.2d 730 (1995). Such is the case "where an appeal is pending, before an appeal as of right or plea withdrawal has expired, or where the defendant intends to or is in the process of moving to modify his or her sentence and can show an appreciable chance of success." Id. at 95-96.

¶ 20. In Evans, this court first acknowledged that persons on probation remain protected by the Fifth Amendment privilege against self-incrimination. Evans, 77 Wis. 2d at 234. We held that compelled admissions about particular instances of criminal activity by a probationer given in response to questions by a probation agent or at a probation revocation hearing are inadmissible against the probationer in subsequent criminal proceedings. Id. at 235-36. We created a rule of use and derivative use immunity for this situation, and required that the probationer be advised that his otherwise self-incriminating statements are "inadmissible against the probationer or parolee during subsequent proceedings on related criminal charges." Id. at 235. Relying on the United States Supreme Court's decisions in Baxter v. Palmigiano, 425 U.S. 308 (1976), and Lefkowitz v. Turley, 414 U.S. 70 (1973), and Kastigar v. United States, 406 U.S. 441 (1972), we held that the state may compel a probationer to answer self-incriminating questions from his probation or parole agent, or suffer the consequence of revocation for refusing to do so, only "if he is protected by a grant of immunity that renders the compelled testimony inadmissible against the [probationer] in a criminal prosecution." Evans, 77 Wis. 2d at 235-36.

¶ 21. We said in Evans that the immunity rule would not apply to use of the probationer's self-incriminating statements to rebut or impeach "clearly inconsistent" later testimony by the probationer in subsequent criminal proceedings. Evans, 77 Wis. 2d at 235-36. The court of appeals, however, has since extended the Evans immunity rule to protect against the use of compelled self-incriminating statements for impeachment or rebuttal purposes. State v. Thompson, 142 Wis. 2d 821, 825, 419 N.W.2d 564 (Ct. App. 1987). Thompson's extension of Evans in this regard was mandated by several decisions of the United States Supreme Court subsequent to Evans. See Thompson, 142 Wis. 2d at 831 (citing Minnesota v. Murphy, 465 U.S. 420, 435 (1984) (if a probationer is required to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent, his statement cannot be used for any evidentiary purpose in a criminal prosecution); New Jersey v. Portash, 440 U.S. 450, 459 (1979) (defendant's compelled statements "may not be put to any use whatever against him in a criminal trial"); Mincey v. Arizona, 437 U.S. 385, 398 (1978) ("any criminal trial use against a defendant of his involuntary statement is a violation of due process of law")). We agree with the court of appeals' conclusion in Thompson that these post -Evans decisions of the United States Supreme Court require expansion of the Evans immunity rule to protect against impeachment or rebuttal use of compelled self-incriminating statements in this context.

¶ 22. We adopt the Evans immunity rule, as expanded by Thompson, for use in this situation. In this case, Tate's right to appeal had not yet lapsed at the time he was required to admit, during sex offender treatment, to the crime of which he was convicted. The DOC had required him to sign a release allowing all of his statements during treatment to be used in "any court proceeding." Future criminal proceedings were possible in his case, as well as the potential for a perjury prosecution arising out of his trial testimony. The price of remaining silent was probation revocation. Accordingly, the admissions demanded of him by his treatment program were both self-incriminating and compulsory. Revocation of Tate's probation for refusing to admit his crime of conviction under these circumstances violated his Fifth Amendment right against self-incrimination.

IV WAIVER

¶ 23. Although the court of appeals held that a probationer in Tate's position cannot be revoked for refusing to admit to the crime of conviction, it nevertheless refused to grant Tate any relief, concluding that he had waived any Fifth Amendment challenge to his revocation by failing to appeal the circuit court's denial of his motion to modify the conditions of his probation. The Department concedes, and we agree, that this conclusion is insupportable.

¶ 24. Tate was terminated from the sex offender treatment program on April 13, 1999. He filed his motion to modify the conditions of his probation to delay his sex offender treatment just six days later, on April 19, 1999. He did not receive a decision from the circuit court until June 18, 1999.

¶ 25. In the meantime, on May 4, 1999, Tate was notified of the DOC's intention to revoke his probation. The final revocation hearing was scheduled for July 1, 1999. Accordingly, by the time the circuit court denied Tate's motion to delay treatment, revocation proceedings were already well under way and the final hearing was less than two weeks away. An appeal of the circuit court's denial of his motion to delay treatment would not have halted the ongoing revocation proceedings; the failure to appeal that order did not eliminate the availability of the remedy of certiorari review once revocation occurred. The court of appeals' waiver rule creates a strange procedural anomaly in which a probationer must seek modification, in the circuit and appellate courts, of any condition of probation that he is alleged to have violated in order to avoid waiving the right to argue against revocation based upon that violation. And the probationer is required, under such a rule, to pursue the modification in the circuit and appellate courts while simultaneously undergoing revocation and pursuing certiorari review once revoked.

¶ 26. The court of appeals cited no authority for its conclusion on waiver, and the parties agree that there is none. We note that Tate did exactly what the defendant in Evans did — he contested the Department's revocation of his probation by filing a petition for a writ of certiorari in the circuit court and then appealed the circuit court's denial of his petition. See Evans, 77 Wis. 2d at 227-230. We did not require in Evans that the defendant first seek relief from the conditions of his probation in the circuit and appellate courts before his constitutional challenge to his revocation would be entertained. We decline to impose such a requirement now.

V CONCLUSION

¶ 27. The constitutional principles underlying our decision in Evans also apply to a probationer who invokes the Fifth Amendment privilege during court-ordered sex offender treatment in refusing to admit his crime of conviction, and we extend the Evans immunity rule to this situation. We also reaffirm the principle set forth in Thompson barring the use of any such compelled self-incriminating statements for impeachment or rebuttal. A probationer who is revoked for refusing, during court-ordered sex offender treatment, and before the time for a direct appeal has expired or an appeal has been denied, to admit to the crime of conviction has suffered a violation of his Fifth Amendment privilege. An immunity rule mirroring the one adopted in Evans, as modified by Thompson, allows the DOC to seek such admissions as a part of sex offender treatment without violating the probationer's privilege against self-incrimination.

¶ 28. The revocation of Tate's probation must be and hereby is reversed, because it was premised on a legitimate assertion of the Fifth Amendment privilege against self-incrimination, and because Tate was not afforded immunity co-extensive with the privilege.

By the Court. — The decision of the court of appeals is reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version.

       Tate petitioned this court for review of the court of appeals' decision; the petition was denied October 23, 2001. See 2001 WI 117, 247 Wis. 2d 1032, 635 N.W.2d 782 (unpublished table decision).

       It should be noted that Tate's probation was revoked on July 26, 1999, which was before he filed his direct appeal on November 15 of that same year.

       The Fifth Amendment's self-incrimination clause is applicable to the states through the Fourteenth Amendment. Withrow v. Williams, 507 U.S. 680, 688 (1993) (citing Malloy v.

        Hogan, 378 U.S. 1 (1964)). Independently, Article I, Section 8 (1) of the Wisconsin Constitution provides that no person "may be compelled in any criminal case to be a witness against himself or herself."

       While McKune is a plurality opinion, Justice O'Connor's concurrence is in agreement with this point of law. See McKune v. Lile, 536 U.S. 24, 122 S. Ct. 2017, 2033 (2002) (O'Connor, J., concurring) ("The text of the Fifth Amendment does not prohibit all penalties levied in response to a person's refusal to incriminate himself."); see also id. (O'Connor, J., concurring) ("Not all pressure necessarily 'compel[s]' incriminating statements .... [S]ome penalties are so great as to 'compe[l]' such testimony, while others do not rise to that level.").

       However, where there is "no threat of any new criminal consequences" from a compelled admission of guilt to the crime of conviction during sex offender treatment, there is no Fifth Amendment violation. State v. Carrizales, 191 Wis. 2d 85, 92, 528 N.W.2d 29 (Ct. App. 1995). See also Minnesota v. Murphy, 465 U.S. 420, 435 n.7 (1984) (distinguishing compelled admissions of guilt that "posed no realistic threat of incrimination in a separate criminal proceeding").

       We noted in Evans that the holding applied to parolees as well as probationers. State v. Evans, 77 Wis. 2d 225, 228 n.1, 252 N.W.2d 664 (1977).

       "Immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege.... It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness." Kastigar v. United States, 406 U.S. 441, 453 (1972). "Use and derivative use immunity permits prosecution for the crimes if the prosecuting agency does not offer the immunized testimony and establishes that the evidence offered is not derived from the immunized testimony." State v. J.H.S., 90 Wis. 2d 613, 617, 280 N.W.2d 356 (Ct. App. 1979).

       We have recently noted that "[a]ll state courts, of course, are bound by the decisions of the United States Supreme Court on matters of federal law" because "the Supremacy Clause of the United States Constitution governs the outcome of any direct conflict between state and federal supreme court precedent on a matter of federal law." State v. Jennings, 2002 WI 44, ¶ 18, 252 Wis. 2d 228, 647 N.W.2d 142.

       The parties and the amicus disagree about whether immunity should extend to admissions made during treatment regarding uncharged conduct, and whether immunity should be required where the probationer pleaded guilty or no contest. We note these issues but do not decide them, as they are not implicated by the facts of this case. Tate was convicted after a jury trial, not a guilty or no-contest plea. The admissions required of him in treatment pertained to the crime of conviction, not uncharged conduct.


text:
    State of Wisconsin ex rel. In re the Support of Robert H.: Calumet County Department of Human Services, Petitioner-Respondent, v. Randall H., Respondent-Appellant.

    Supreme Court

      No. 01-1272.

      Oral argument September 11, 2002.

    Decided November 21, 2002.

    2002 WI 126
    (Also reported in 653 N.W.2d 503.)

      For the respondent-appellant, there were briefs by Brett C. Petranech and Kelly & Petranech LLP, Madison, and oral argument by Brett C. Petranech.

    For the petitioner-respondent, there was a brief and oral argument by Melody Buchinger, corporation counsel.
    An amicus curiae brief was filed by Mary S. Gerbig, Mary L. Hubacher, Mark L. Olson and Davis & Kuelthau, S.C., Green Bay, on behalf of the Wisconsin Counsel of Administrators of Special Services, with oral argument by Mary S. Gerbig.

    An amicus curiae brief was filed by Jeffrey Spitzer-Resnick, Madison, on behalf of the Wisconsin Coalition for Advocacy.

      An amicus curiae brief was filed by Lucy T. Brown, Joanne Huston and Bruce Meredith, Madison, on behalf of the Wisconsin Education Association Council.
    An amicus curiae brief was filed by John J. Prentice, Julianne Barker and Prentice & Phillips LLP, Milwaukee, on béhalf of the Wisconsin Counties Association.

       Motion for reconsideration denied February 21, 2003.

   DIANE S. SYKES, J.

¶ 1. This case involves the intersection of the federal Individuals with Disabilities Education Act (IDEA) and state statutes governing children in need of protection or services (CHIPS). The issue is whether the parent of a disabled child placed in a residential treatment facility pursuant to a circuit court's CHIPS order is exempt from the court's child support order if the child's individualized education program (IEP), mandated by the IDEA, subsequently specifies that the child's educational program be implemented at the residential treatment facility. We conclude that the parent is not relieved of the obligation to contribute to the child's support under these circumstances.

¶ 2. Randall H. petitioned the Calumet County Circuit Court to have his son, Robert H., adjudicated a child in need of protection or services pursuant to Wis. Stat. § 48.13(4) (1999-2000). Robert was diagnosed with schizo-affective disorder, oppositional defiant disorder, and personality disorder with schizo-typal features, and because of these mental health problems, his family could not care for him at home. The circuit court entered a dispositional order finding Robert a child in need of protection or services and ordered him placed in a residential treatment facility, and also ordered Randall to contribute toward Robert's support pursuant to Wis. Stat. §§ 46.10 and 48.355.

¶ 3. Pursuant to Wis. Stat. § 115.81, the responsible local education agency (LEA) convened an IEP team, which recommended that Robert's educational program be implemented at the residential treatment facility while he was residing there pursuant to the CHIPS order. Randall then moved the circuit court for relief from the child support obligation, arguing that he was exempt from the support obligation by virtue of Robert's entitlement under the IDEA to a "free appropriate public education" (FAPE). See 20 U.S.C. § 1401(8). The circuit court denied the motion, Randall appealed, and the court of appeals certified the case to this court on the issue of whether the IDEA preempts state statutes requiring parents to contribute to the support of their children placed outside the home by a CHIPS order.

¶ 4. We do not view this case as presenting a preemption question. The federal and state statutory schemes at issue here do not conflict, at least not under the circumstances of this case. Robert was placed in the residential treatment facility for mental health care pursuant to a CHIPS order of the circuit court. The IEP specifying that his educational program be implemented at the facility while he resided there did not constitute a residential placement necessary for educational purposes under the IDEA. Accordingly, the IDEA does not provide grounds for relief from the child support obligation in the CHIPS order. We affirm the circuit court's order denying relief.

I. FACTS

¶ 5. Robert H. was born on April 12, 1985. He is the minor child of Randall H. In the second grade, Robert was provided speech and language services in response to problems with dysfluency, and he was also placed on medication for Attention Deficit Hyperactivity Disorder (ADHD). In the fifth grade, Robert was placed in special education programming for emotionally disturbed students. Over time Robert has required both inpatient (two hospitalizations at St. Elizabeth's in Appleton and one in Colorado) and outpatient mental health services to deal with concerns about potential harm to himself and others, depression, anger, aggressiveness, and auditory hallucinations. At home, Robert became aggressive when stressed and exhibited isolation, anxiety, temper outbursts, insecurity, and hygiene problems.

¶ 6. Despite his persistent mental health problems, Robert possesses superior intellectual ability. He began high school in the Stockbridge School District. While there, a full-time aide assisted him with work organization and completion, and with behavior control. This assistance was very beneficial to his education.

¶ 7. On December 23, 1999, however, Robert was hospitalized again, this time at the Winnebago Mental Health Institute (WMHI). Some nine months later, on September 27, 2000, Randall petitioned the Calumet County Circuit Court to have Robert adjudged a child in need of protection or services. See Wis. Stat. § 48.13. In the petition, Randall stated that Robert had been diagnosed at WMHI with schizo-affective disorder (bipolar type), oppositional defiant disorder, and personality disorder with schizo-typal features. The petition also stated that Robert's symptoms included auditory hallucinations, delusional and paranoid thoughts, homicidal and suicidal ideations, aggressive behaviors and threats, disorganized thinking, emotional dysregulation, negative self-concept, and difficulty forming and maintaining relationships. A number of medications had been tried, but Robert's symptoms escalated whenever he was removed from the structure of the hospital environment. WMHI staff had recommended out-of-home placement in a residential treatment facility. Randall's petition concluded: "[d]ue to Robert's severe pathology, the family is unable to provide the care and treatment to meet his numerous needs, thereby necessitating residential out-of-home placement."

¶ 8. On October 30, 2000, the circuit court, the Honorable Donald A. Poppy, Judge, adjudicated Robert a child in need of protection or services. The court ordered out-of-home placement in a residential treatment facility and supervision by the Calumet County Department of Human Services (the Department) for one year. The Department recommended, consistent with a referral from WMHI, that Robert be placed at the Lakeview Neurological Rehabilitation Center in Waterford, and the circuit court adopted that recommendation.

¶ 9. The dispositional order also required Randall to contribute toward the expense of the out-of-home placement in an amount to be determined by the Department. See Wis. Stat. §§ 46.10(14)(b) and 48.355(2)(b)4. Randall and the County entered into a stipulation whereby Randall agreed to pay $170 per week toward Robert's CHIPS placement at Lakeview, effective October 31, 2000. The circuit court signed an order confirming the stipulation. The County thereafter notified Randall's employer of its obligation to withhold a portion of his income to meet the child support obligation. The total cost of Robert's care at Lakeview exceeded $9,000 per month.

¶ 10. Robert was transferred to Lakeview on October 31, 2000. Lakeview is located within the Waterford Union High School District, which became Robert's responsible LEA upon his arrival at Lakeview. See Wis. Stat. § 115.81(l)(b).

¶ 11. About two weeks later, on November 15, 2000, a Waterford School District IEP team met to address Robert's educational needs. Randall, representatives of the Waterford District, and two Calumet County representatives participated.

¶ 12. The IEP team determined that Robert exhibited strong reading and math concept skills, but weaknesses in math computation, written language, and spelling. It found that, given adequate support, Robert could function well in the classroom. The IEP team noted that special education at Waterford Union High had been considered and rejected because Calumet County already had placed Robert at Lakeview due to his mental health issues. The IEP specified that Robert's educational program would be implemented at Lakeview.

¶ 13. Randall then moved for relief from the child support order, asserting. that the IDEA required Robert's placement at Lakeview to be at no cost to the parents. He requested suspension of future support payments and reimbursement of support payments already made. The circuit court denied the motion, concluding that Robert was placed at Lakeview because of his mental health needs, not his educational needs, and therefore the IDEA did not relieve Randall of his obligation to contribute to Robert's support. The court further held that the IEP developed by the Waterford District, which specified that Robert would receive special education services at Lakeview while residing there, was "incidental" to his CHIPS placement.

¶ 14. Randall appealed the circuit court's order, the court of appeals certified the case to this court pursuant to .Wis. Stat. § 809.61, and we accepted the certification. We now affirm.

II. STANDARD OF REVIEW

¶ 15. The court of appeals certified the case on the question of whether the IDEA, "which requires a free appropriate public education (EAPE) to students with disabilities, preempts] Wis. Stat. §§ 48.355 and 46.10 . . . which require parents to contribute to their children's support when placed outside the home by a juvenile court." As we have noted, we do not view this case as presenting a preemption issue, and neither do the parties. They assert, and we agree, that the federal and state statutes do not conflict, although Randall argues in the alternative that if there is a conflict, then the federal law preempts.

¶ 16. We see this case as presenting a threshold question of whether Robert's placement at Lakeview was a residential educational placement under the IDEA, which carries with it the requirement that it be at no cost to the child's parents. See 20 U.S.C. §§ 1401(8), (22), and (25); 34 C.F.R. § 300.302 (2000). The preemption issue does not arise if Robert's placement in the residential program was not for educational purposes under the IDEA.

¶ 17. The federal courts have held that the question of whether a residential placement is educational and therefore covered by the IDEA is a mixed question of fact and law. Butler v. Evans, 225 F.3d 887, 892 (7th Cir. 2000); Board of Educ. of County High Sch. No. 218 v. Illinois State Bd. of Educ., 103 F.3d 545, 548 (7th Cir. 1996); Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 980 (4th Cir. 1990); Kruelle v. New Castle County Sch. Dist., 642 F.2d 687, 692-693 (3d Cir. 1981). "[0]n appeal, we review the district court's judgment as a mixed question of fact and law, reviewing the ultimate determination de novo but reversing the court's factual findings only if clearly erroneous." Butler, 225 F.3d at 892 (citing Heather S. v. State of Wis., 125 F.3d 1045, 1052-53 (7th Cir. 1997)).

¶ 18. Here, the circuit court's factual findings were minimal, basically consisting of a brief recitation of the procedural history of the case. The facts set forth above are from the procedural record and the IEP prepared for Robert by the Waterford School District, which was part of the record on the motion for relief from the child support order. The parties do not disagree about the procedural history or the underlying evidentiary facts. This appeal turns on the ultimate determination of whether Robert was placed at Lake-view for educational purposes under the IDEA, which involves a determination of whether the facts meet the applicable legal standard. We apply a de novo standard of review.

III. ANALYSIS

¶ 19. The IDEA provides special education funding to the states for the education of disabled children, and also regulates the education of disabled children by conditioning receipt of this funding on compliance with federal statutory and code requirements. See 20 U.S.C. §§ 1400-1487. The IDEA "represents an ambitious federal effort to promote the education of handicapped children." Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 179 (1982) (discussing the Education for All Handicapped Children Act, later renamed the IDEA). Its purpose is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. § 1400(d)(1)(A).

¶ 20. As is pertinent here, a FAPE, or "free appropriate public education" under the IDEA, is "special education and related services," provided at public expense, supervision, and direction, pursuant to an IER or "individualized education program." 20 U.S.C. § 1401(8). The IDEA requires the LEA, or "local educational agency," to develop an IEP for any child with a disability. 20 U.S.C. § 1401(11) and (15).

¶ 21. The IDEA defines "special education" as:

[Slpecially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including — (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education.

20 U.S.C. § 1401(25). "Related services" are:

[T]ransportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.

20 U.S.C. § 1401(22). The IDEA generally requires "mainstreaming" — educating disabled children in the least restrictive environment and in school with non-disabled children — to "the maximum extent appropriate." 20 U.S.C. § 1412(5)(A); see also Rowley, 458 U.S. at 202-03.

¶ 22. In certain limited circumstances, the IDEA requires that a public or private residential educational program be provided, at no cost to the parents. See 20 U.S.C. § 1412(10)(B)(i); 34 C.F.R. § 300.302. Specifically, 34 C.F.R. § 300.302 provides that "[i]f placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child." 34 C.F.R. § 300.302 (emphasis added).

¶ 23. Federal courts deciding parental reimbursement cases under the IDEA have generally held that the test for whether a child's placement in a residential program is educational and therefore reimbursable under the IDEA focuses on whether the child's residential placement is "necessary for educational purposes." Butler, 225 F.3d at 893; Tennessee Dep't of Mental Health & Mental Retardation v. Paul B., 88 F.3d 1466, 1471 (6th Cir. 1996) (a residential placement is appropriate and free only if it "is necessary for educational purposes as opposed to medical, social, or emotional problems that are separable from the learning process"); Clovis Unified Sch. Dist. v. California Office of Admin. Hearings, 903 F.2d 635, 643 (9th Cir. 1990) (analysis focuses on whether a residential placement "may be considered necessary for educational purposes"); Burke County Bd. of Educ., 895 F.2d at 980 (the IDEA covers residential placement only if such placement is "essential for the child to make any educational progress at all") (emphasis in original) (citing Ahrahamson v. Hershman, 701 F.2d 223, 227 (1st Cir. 1983), and Matthews v. Davis, 742 F.2d 825, 829 (4th Cir. 1984)); McKenzie v. Smith, 771 F.2d 1527, 1534 (D.C. Cir. 1985) (determination of whether the IDEA requires residential placement turns on whether full-time residential placement is necessary for educational purposes); Kruelle, 642 F.2d at 693 (only a residential placement that is "a necessary predicate for learning" is covered by the IDEA).

¶ 24. If a residential placement is "a response to medical, social, or emotional problems that is necessary quite apart from the learning process," then it is not an educational placement for purposes of the IDEA. Butler, 225 F.3d at 893 (quoting Clovis, 903 F.2d at 643). The IDEA does not require reimbursement for a residential placement that "addresses the child's medical, social or emotional disabilities apart from [his] special education needs." Id. at 894 (citing Clovis, 903 F.2d at 646-47).

¶ 25. Robert was placed at Lakeview pursuant to the circuit court's CHIPS order, a proceeding that Randall had initiated because Robert's mental illness necessitated out-of-home placement. His placement there was clearly in response to his psychiatric and emotional problems and was necessary quite apart from his special education needs. He had been hospitalized at WMHI for many months prior to the CHIPS petition, was diagnosed with several serious psychiatric disorders, and had been recommended for a residential mental health placement by the staff at WMHI. Robert's IER prepared after he arrived at Lakeview pursuant to the CHIPS order, did not conclude that a residential placement was an educational necessity; it merely accepted that Robert had been placed in residential treatment for mental health issues by the circuit court's CHIPS order, and for that reason specified that his IEP should be implemented there.

¶ 26. We find it significant that Robert's IEP does not specify residential placement as a "related service." In the program, summary on page 1-14 of Robert's IER where necessary "related services" are listed, the box next to the statement "[n]one needed to benefit from special education" is checked, and the boxes next to the various itemized "related services" are left blank. The box next to "other" related services is also left blank. If the IEP team had concluded that a full-time residential program was necessary for Robert to make educational progress, the team would have listed it in this section of the IEP It did not. In fact, residential programming is not identified as an educational necessity anywhere in the IEP We conclude that Robert'splacement at Lake-view was not necessitated by his educational needs for purposes of the IDEA.

¶ 27. Nothing in state law changes this conclusion. The circuit court — not an LEA — has exclusive jurisdiction over children adjudged to be in need of protection or services. Wis. Stat. § 48.13. State law provides that the circuit court may include in a CHIPS dispositional order a requirement that the parent of a child placed in a residential treatment facility or child caring institution contribute to the support of the child. Wis. Stat. §§ 46.10(14)(b) and 48.355(2)(b)4.

¶ 28. State law further provides that whenever a county or the state anticipates or recommends to a court that a child be placed in a child caring institution, the county or state "shall notify the responsible local educational agency," which in turn shall "appoint an individualized education program team to review and revise, if necessary, the child's individualized education program." Wis. Stat. § 115.81(3)(a) and (b)l. Under these circumstances, the county or state, rather than the LEA, is responsible for paying "all of the child caring institution related costs of educating the child while the child resides in the child caring institution." Wis. Stat. § 115.81(4)(b)5.

¶ 29. We read these state statutory provisions as allowing the circuit court to order child support when a CHIPS child is placed in residential treatment but precluding the court from assessing any of the facility's education-related costs against the parents of the child. There is no evidence that Randall's court-ordered contribution of $170 per week toward Robert's $9,000 per month care at Lakeview pertains to the facility's education-related costs.

¶ 30. Accordingly, because Robert's placement in the residential program at Lakeview was necessitated not by his educational needs, but, rather, his mental illness, and was brought about by the circuit court's CHIPS order rather than Robert's IER it was not an educational placement for purposes of the IDEA. Therefore, the IDEA does not provide a basis for relief from the child support obligation under the CHIPS order. Nor does Wis. Stat. § 115.81 provide a basis for lifting that obligation. We affirm the circuit court's denial of Randall's motion for relief from the child support order.

¶ 31. By the Court. — The order of the Calumet County Circuit Court is affirmed.

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version.

       The amounts paid have been held in trust pending resolution of this case.

       The Seventh Circuit uses a fact-driven approach to identify an "educational placement" for purposes of parental reimbursement claims under the IDEA. Because "the term 'educational placement' is not statutorily defined," determining whether a placement is educational is "an inexact science." Board of Educ. of County High Sch. No. 218 v. Illinois State Bd. of Educ., 103 F.3d 545, 548 (7th Cir. 1996). "The meaning of 'educational placement' falls somewhere between the physical school attended by a child and the abstract goals of a child's IEE" Id. "Hesitant to definitively establish the meaning of 'educational placement' for our circuit, we adopt our sister circuits' fact-driven approach. We accept as the outer parameters of 'educational placement' that it means something more than the actual school attended by the child and something less than the child's ultimate goals." Id. at 549.

       Wisconsin's implementation of the IDEA is found in Chapter 115. See Wis. Stat. §§ 115.758-115.90. These sections spell out Wisconsin's procedural requirements for implementing the IDEA, including the rights and responsibilities of the various agencies and individuals impacted. Wisconsin's version is identical to the IDEA in most respects and is to be "construed in a manner consistent with" the IDEA. Wis. Stat. § 115.758.

       Randall conflates the IEP and the CHIPS order to argue that Robert's placement at Lakeview was precipitated by his educational needs. See, e.g., Butler v. Evans, 225 F.3d 887, 893 (7th Cir. 2000). Like the commitment and IEP proceedings at issue in Butler, the CHIPS dispositional order and the IEP recommendations in this case "were decided independently in separate proceedings ..." and Robert was placed at Lakeview "outside of the IDEA procedures and IEP recommendations." Id. While an IEP and a CHIPS proceeding cannot be conflated for purposes of IDEA analysis, we do not mean to suggest that the presence of a separate CHIPS proceeding automatically precludes a finding that a residential placement is educational for purposes of the IDEA.

       The IEP does conclude that Robert's behavioral problems interfere with his education and the education of other students, but it does so in the context of evaluating his basic need for special education services generally, not residential placement in particular. The IEP lists several interventions and special educational support services recommended to address Robert's behavioral problems (e.g., one-to-one assistance with school work, coping skill strategies, cool down periods), but does not specify that residential placement is recommended or necessary to Robert's educational progress.

       Federal regulations require that the educational placement of a disabled child be "based on his or her IEP" 34 C.F.R. § 300.552(b)(2) (2000).

       We also note that Stockbridge, Robert's original LEA, was not involved in placing Robert at either the Winnebago Mental Health Institute or Lakeview. The IEP created by Stockbridge placed Robert in regular classes with a full-time aide who worked with him on a variety of tasks. Both Randall and the County agree that these services were very beneficial to Robert's education. His educational needs were being met without placement in a residential program. This supports our conclusion that psychiatric needs triggered Robert's residential placement at Lakeview, not educational needs.


author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Earl A. Charlton, Attorney at Law: Office of Lawyer Regulation f/k/a Board of Attorneys Professional Responsibility, Complainant, v. Earl A. Charlton, Respondent.
    Supreme Court

      No. 87-1021-D.

      Decided November 27, 2002.

    2002 WI 128
    (Also reported in 653 N.W.2d 511.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that Earl A. Charlton's license to practice law in Wisconsin be reinstated. The Office of Lawyer Regulation (OLR) and the Board of Bar Examiners join in that recommendation.

¶ 2. We adopt the referee's findings of fact and conclusions of law and agree with his recommendation that Earl A. Charlton's license to practice law be reinstated, subject to compliance with current Continuing Legal Education (CLE) requirements. In addition, Mr. Charlton shall be required to pay the costs of the reinstatement proceeding.

¶ 3. Earl Charlton was admitted to practice law in Wisconsin in 1950 and engaged in private practice in Milwaukee. In 1993 Mr. Charlton's license to practice law was revoked based on professional misconduct involving complex conflict of interest matters with respect to business ventures in which he was involved both as. a lawyer representing clients and as an investor. The misconduct included engaging in misrepresentations to parties in business transactions in which he was professionally and personally involved, attempting to settle a client's case in exchange for a favorable letter to the Board of Attorneys Professional Responsibility (BAPR) (the predecessor to OLR), failing to maintain complete trust account records, making misrepresentations to BAPR, and practicing law under the name of a firm suggesting a partnership or service corporation when there was none. See In re Disciplinary Proceedings Against Charlton, 174 Wis. 2d 844, 498 N.W.2d 380 (1993).

¶ 4. Mr. Charlton filed a petition for reinstatement in August 1998. After conducting public hearings BAPR recommended’against reinstating Mr. Charlton's license at that time. This court denied his petition for reinstatement by order dated May 8, 2001. This court also waived the waiting period for filing a new petition for reinstatement and provided that Mr. Charlton could immediately file a new petition for reinstatement.

¶ 5. On July 6, 2001, Mr. Charlton filed a second petition for reinstatement of his license under SCR 22.28. Attorney Timothy L. Vocke was assigned as referee. The referee held a public hearing on the reinstatement petition in August 2002. Various witnesses testified at the hearing. The referee issued his report and recommendation on September 11, 2002.

¶ 6. The referee found that no evidence was presented at the public hearing to cast doubt upon Mr. Charlton's present qualifications to practice law and that Mr. Charlton had satisfactorily addressed all of the requirements for reinstatement set forth in SCR 22.29(4).

¶ 7. The referee's report indicates that Mr. Char-lton said he fully understood that his license to practice law was revoked because of various conflicts of interest that arose when he was trying to represent himself, his businesses, and various partners. Mr. Charlton said he not only understood why his license was revoked but agreed that revocation was appropriate, and he said he knows what he has to do in the future to avoid conflicts. He said if his license to practice law is reinstated he will not provide legal services to any of his various businesses. He said the reason he wants his license reinstated is so he can be "of counsel" with his son's law firm providing mentoring and assistance to the various attorneys in the firm. He said he has no desire to start his own law practice and would like an opportunity to handle cases on a pro bono basis.

¶ 8. After a review of the record we conclude that Earl A. Charlton has established by clear, satisfactory, and convincing evidence that he has satisfied all the criteria for reinstatement. Accordingly, we adopt the referee's findings of fact and conclusions of law and we agree with the referee's recommendation that Mr. Charlton's license to practice law in Wisconsin be reinstated.

¶ 9. IT IS ORDERED that the petition for reinstatement of the license of Earl A. Charlton to practice law in Wisconsin is granted, effective the date of this order, subject to compliance with current CLE requirements.

¶ 10. IT IS FURTHER ORDERED that within six months of the date of this order Earl A. Charlton pay to the OLR the costs of this proceeding. If the costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Earl A. Charlton to practice law in Wisconsin shall be suspended until further order of the court.

       SCR 22.28 provides: License reinstatement.
      (1) An attorney suspended from the practice of law for nonpayment of state bar membership dues or failure to comply with the trust account certification requirement or continuing legal education requirements may seek reinstatement under the following rules, as applicable:
      (a) An attorney whose suspension for nonpayment of state bar membership dues has been for a period of less than 3 consecutive years may seek reinstatement under SCR 10.03(6m)(a).
      (b) An attorney whose suspension for failure to comply with the continuing legal education requirements has been for a period of less than 3 consecutive years may seek reinstatement under SCR 31.11(1).
      (c) An attorney whose suspension for nonpayment of state bar membership dues has been for a period of 3 or more consecutive years may seek reinstatement under SCR 10.03(6m)(b).
      (d) An attorney whose suspension for failure to comply with the continuing legal education requirements has been for a period of 3 or inore consecutive years may seek reinstatement under SCR 31.11(lm).
      (e) An attorney who has been suspended for failure to comply with the trust account certification requirement under SCR 20:1.15(g) may seek reinstatement under SCR 10.03(6m)(c).

        (2) The license of an attorney suspended for misconduct for less than six months shall be reinstated by the supreme court upon the filing of an affidavit with the director showing full compliance with all the terms and conditions of the order of suspension and the director's notification to the supreme court of the attorney's full compliance.
      (3) The license of an attorney that is revoked or suspended for misconduct for six months or more shall be reinstated pursuant to the procedure set forth in SCR 22.29 to 22.33 and only by order of the supreme court.

       SCR 22.29(4) provides:
      (4) The petition for reinstatement shall show all of the following:
      (a) The petitioner desires to have the petitioner's license reinstated.
      (b) The petitioner has not practiced law during the period of suspension or revocation.
      (c) The petitioner has complied fully with the terms of the order of suspension or revocation and will continue to comply with them until the petitioner's license is reinstated.
      (d) The petitioner has maintained competence and learning in the law by attendance at identified educational activities.
      (e) The petitioner's conduct since the suspension or revocation has been exemplary and above reproach.

        (f) The petitioner has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards.
      (g) The petitioner can safely he recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and as an officer of the courts.
      (h) The petitioner has fully complied with the requirements set forth in SCR 22.26.
      (j) The petitioner's proposed use of the license if reinstated.
      (k) A full description of all of the petitioner's business activities during the period of suspension or revocation.
      (m) The petitioner has made restitution to or settled all claims of persons injured or harmed by petitioner's misconduct or, if not, the petitioner's explanation of the failure or inability to do so.