text:
    John Marder, Plaintiff-Appellant-Cross-Respondent, v. Board of Regents of the University of Wisconsin System, Defendant-Respondent-Cross-Appellant.
    Court of Appeals

      No. 03-2755.

      Oral Argument June 28, 2004.

    Decided August 10, 2004.

    2004 WI App 177
    (Also reported in 687 N.W.2d 832.)

      On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted on the briefs of Aaron N. Halstead of Shneidman, Hawks & Ehlke, S.C., Madison. There was oral argument by Aaron N. Halstead.

      On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Jennifer Sloan Lattis, assistant attorney general. There was oral argument by Jennifer Sloan Lattis.

    Before Cane, C.J., Hoover, RJ., and Peterson, J.

       Petition to review granted 12-15-2004.

   PETERSON, J.

¶ 1. John Marder appeals an order reversing the University of Wisconsin Board of Regents' termination of his employment as a tenured professor at UW-Superior and remanding the case to the Board. The circuit court concluded that the University's termination process must comply with the contested case provisions of Wis. Stat. ch. 227. Marder alleged the Board had ex parte communication with, among others, the Chancellor. The Board admitted the ex parte communication with the Chancellor but argued it was proper. The circuit court concluded that, in a contested case, ex parte communications are prohibited by § 227.50(l)(a). The court remanded the case to the Board "for further action under a correct interpretation of the law." On appeal, Marder argues that remand was inappropriate because the Board is too tainted to render a fair decision. Instead, he argues we should reverse the Board's decision and thereby reinstate his employment.

¶ 2. Alternatively, Marder disputes the circuit court's denial of his request to allow discovery. He argues that if we do not simply reverse the Board's decision, we should conclude that further discovery is necessary to determine what took place during the ex parte communications.

¶ 3. The Board cross-appeals the circuit court's determination that the contested case provisions of Wis. Stat. ch. 227 apply. The Board argues that Wis. Admin. Code ch. UWS 4 supercedes Wis. Stat. ch. 227. It contends that Wis. Admin. Code § UWS 4.08 mandated the closed meeting with the Chancellor and that the code did not require Marder's presence. Thus, the Board urges us to reverse the circuit court's determination that the contested case provisions apply. Marder responds that a closed meeting violates his right to due process of law.

¶ 4. We agree with the Board that the administrative code provisions apply, not the contested case provisions of Wis. Stat. ch. 227. However, we conclude that, while the code mandated a meeting between the Board and the Chancellor, the code also required Marder's presence at the meeting. Furthermore, as a matter of due process, Marder has a right to know whether any new and material information was discussed at the closed meeting. Because the record does not indicate what the Board and the Chancellor discussed, we remand to the circuit court for it to make that finding. The court should then determine, based on its finding, whether Marder's right to a fair hearing was violated by the ex parte communication.

BACKGROUND

¶ 5. Marder had been employed by the University of Wisconsin System since 1987 and was a tenured faculty member at UW-Superior. In 1999, the Chancellor at UW-Superior, Julius Erlenbach, served Marder with a Statement of Charges. It contained eighteen separate charges which "evince [d] a pattern of behavior that is inconsistent with the expectations this university has of tenured faculty members and which further violate standards of professional conduct, thus constituting just cause to dismiss you from your tenured faculty position at UW-Superior." It advised Marder that the Chancellor was terminating Marder's employment unless Marder requested a hearing on the charges. Marder requested a hearing, pursuant to Wis. Admin. Code § UWS 4.04.

¶ 6. In January 2000, a committee of four tenured faculty members at UW-Superior held two days of hearings. The committee issued a unanimous decision rejecting the Chancellor's recommendation to terminate Marder. The Chancellor then recommended Marder's termination to the Board of Regents. The Board's Personnel Matters Review Committee reviewed the evidence and on three separate occasions unanimously recommended that the Board reject termination. However, the Board voted 11-3 to terminate Marder's employment in June 2001. The only ones who voted not to terminate Marder's employment were members of the Personnel Matters Review Committee.

¶ 7. Marder petitioned the Douglas County Circuit Court for review of the Board's decision. Marder sought a reversal of the Board's decision to terminate him. In the alternative, he sought leave to take testimony and discovery regarding several ex parte communications.

¶ 8. First, Marder alleged that the Board had improper contact with the Office of the General Counsel. Second, he alleged that one of the Board's regents had improper contact with the Chancellor. The circuit court concluded these claims were mere speculation because there was no evidence to suggest any improper ex parte communication.

¶ 9. Finally, Marder alleged there was a private meeting between the Board and the Chancellor before the Board rendered its decision. The Board admitted it met with the Chancellor without Marder being present. The meeting occurred in closed session of the Board. After the meeting, the Board reconvened in open session and terminated Marder's employment.

¶ 10. Wisconsin Stat. § 227.50(l)(a) contains a prohibition against ex parte communications. However, the Board argued the proceedings were not a contested case under Wis. Stat. § 227.01, and thus the provisions of ch. 227 did not apply. Instead, the Board maintained the procedure under Wis. Admin. Code ch. UWS 4 applies. The Board argued that Wis. Admin. Code § UWS 4.08 mandated the closed meeting with the Chancellor and therefore it was not an improper communication.

¶ 11. The circuit court concluded that this was a contested case under Wis. Stat. ch. 227. It also concluded that, while the code required the Board to consult with the Chancellor, Wis. Stat. § 227.50 required Marder to be present. Thus, the court remanded the case to the Board, pursuant to Wis. Stat. § 227.57(5), for "further action under a correct interpretation of the law."

¶ 12. Marder had also requested leave to take testimony and discovery to determine what was discussed during the alleged ex parte communications. The court denied the request, stating it was "not needed to assist the court in making a decision."

DISCUSSION

Alleged ex parte communications

¶ 13. Marder alleges three different incidents of ex parte communication. We must determine whether any of these alleged incidents were in fact improper.

¶ 14. Marder first contends there were improper contacts between the Board and the Office of the General Counsel. Two attorneys from the Office of the General Counsel represented the Chancellor in this matter. Another attorney from the Office also advised the Board on procedure during the dismissed process. Marder contends this was improper because it allowed the Chancellor to influence the Board through the Office of the General Counsel. He argues the Board was not impartial as a result.

¶ 15. Marder cites Guthrie v. WERC, 111 Wis. 2d 447, 461, 331 N.W.2d 331 (1983), which states that an administrative decision-maker is disqualified if he or she has previously acted as counsel. This is because "the risk of unfairness [was] intolerably great," resulting in a denial of due process. Marder argues the same principle applies here because the Office served as advisor to the Board as well as counsel to the Chancellor. He contends the attorneys at the Office had discussions regarding his termination that were never disclosed to him. Thus, he argues the Board lost its impartiality and thereby denied him his due process rights because the risk of unfairness is intolerably great.

¶ 16. In Bracegirdle v. Department of Regulation & Licensing, 159 Wis. 2d 402, 414, 464 N.W.2d 111 (Ct. App. 1990), we concluded that the Guthrie rule did not apply to the facts of that case. In Bracegirdle, the chairperson of a board advised the prosecuting attorney and also prepared the board's decision to reprimand Bracegirdle. Id. We determined the chairperson acted only as an advisor to the prosecuting attorney. Id. Thus the risk of unfairness was not intolerably great. The same applies here where the Office was merely advising the Board on procedural matters and was not a decision-maker. See also Nu-Roc Nursing Home v. State DHSS, 200 Wis. 2d 405, 420, 546 N.W.2d 562 (Ct. App. 1996) (applying Bracegirdle and limiting Guthrie to only bar from decision-making those who had previously represented a party in a dispute).

¶ 17. Because Guthrie is inapplicable, Marder must "show special facts and circumstances to demonstrate that the risk of unfairness is intolerably high." See Nu-Roc, 200 Wis. 2d at 420 (quoting Bracegirdle, 159 Wis. 2d at 415). This strong showing is necessary to rebut the presumption of a state officer's honesty and integrity. Id. A plaintiff can meet this burden by showing that the adjudicator had become "psychologically wedded" to a predetermined disposition of the case." Id. Marder fails to meet this burden. He alleges that the attorneys representing the Chancellor spoke with the attorney advising the Board regarding the merits of the case. However, the attorney representing the Board provided only procedural advice to the Board and did not advise it on the merits of the case. There is no indication that the Office of the General Counsel so influenced the Board that the Board's disposition was "psychologically wedded" to the Chancellor's position. We therefore conclude that the Office's participation was not improper.

¶ 18. Marder's second allegation of improper communication relates to the Chancellor and one of the Board's regents, Toby Marcovich. The Chancellor and Marcovich flew together on Marcovich's private plane from Superior to Milwaukee for a Board meeting. This was the same meeting where the Board voted to terminate Marder's employment. Marcovich made the motion to terminate Marder's employment. Marder alleges, on information and belief, that the Chancellor and Marcovich discussed the matter during the flight to Milwaukee.

¶ 19. The due process clause requires that an adjudicator in an administrative hearing be fair and impartial. State ex rel. DeLuca v. Common Council, 72 Wis. 2d 672, 684, 242 N.W.2d 689 (1976). However, administrative adjudicators, such as the regents here, retain a presumption of honesty and integrity and "are assumed to be men of conscience and intellectual discipline capable of judging a particular controversy on the basis of its own circumstances." Withrow v. Larkin, 421 U.S. 35, 54 (1975). A strong showing is necessary to rebut this presumption. Nu-Roc, 200 Wis. 2d at 420. Marder has merely speculated that because the Chancellor and Regent traveled together, they must have discussed the matter. However, the presumption is that the Chancellor and Regent took their responsibilities seriously, understood that discussing the matter would be improper and therefore avoided any mention of it. Marder has not made a strong showing that would rebut the presumption that the Chancellor and Marcovich acted in any other way than with honesty and integrity.

¶ 20. Finally, Marder alleges the Board improperly met with the Chancellor outside Marder's presence before it decided to terminate Marder's employment. The Board admits that it met privately with the Chancellor but contends the meeting was required and was not a violation of Marder's due process rights. This is the primary issue in this case and we now turn to discussion of it.

Whether this matter is a contested case under Wis. Stat. ch. 227

¶ 21. We must determine whether this matter is a contested case under Wis. Stat. ch. 227, as Marder contends. If it is a contested case, Wis. Stat. § 227.50(l)(a)l clearly prohibits ex parte communications and Wis. Stat. § 227.50(2) provides specific remedies. Our determination involves statutory interpretation, which is a question of law we decide independently. See State v. Isaac J.R., 220 Wis. 2d 251, 255, 582 N.W.2d 476 (Ct. App. 1998).

¶ 22. Wisconsin Stat. § 227.50(l)(a)l states:

In a contested case, no ex parte communication relative to the merits... shall be made, before a decision is rendered, to the hearing examiner or any other official or employee of the agency who is involved in the decision-making process, by:
An official of the agency or any other public employee or official engaged in prosecution or advocacy in connection with the matter under consideration or a factually related matter.

¶ 23. Wisconsin Stat. § 227.07(3) states that a contested case is "an agency proceeding in which the assertion by one party of any substantial interest is denied or controverted by another party and in which, after a hearing required by law, a substantial interest of a party is determined or adversely affected by a decision or order." Marder first argues that the Board is an agency. Second, he maintains the substantial interest involved here is his tenure as a professor, which is a property interest. Third, the interest was adversely affected by the Board's decision to terminate him. Thus, Marder concludes that this is a "contested case" and Wis. Stat. ch. 227 applies. Marder contends the Board violated § 227.50(l)(a)l by having the ex parte meeting with the Chancellor.

¶ 24. Marder's argument does not account for Wis. Stat. § 36.13(5):

Any person having tenure may be dismissed only for just cause and only after due notice and hearing. Any person having a probationary appointment may be dismissed prior to the end of the person's contract term only for just cause and only after due notice and hearing. The action and decision of the board in such matters shall be final, subject to judicial review under ch. 227. The hoard and its several faculties shall develop procedures for the notice and hearing which shall be promulgated by rule under ch. 227. (Emphasis added).

This statute specifically authorizes the Board to adopt termination procedures. Pursuant to the statute, the Board adopted Wis. Admin. Code ch. UWS 4, which lays out the process to be applied in faculty dismissal cases. While Wis. Stat. § 36.13(5) provides that dismissal decisions are reviewed under ch. 227, it does not indicate that any other provisions of ch. 227 apply.

¶ 25. Furthermore, the code provisions are specific to faculty dismissal cases. The contested case provisions of Wis. Stat. ch. 227 are more general. Where specific and general provisions conflict, specific provisions take precedence. See State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 596, 547 N.W.2d 587 (1996). Thus, we conclude the contested case provisions of Wis. Stat. ch. 227 do not apply in this case.

The Administrative Code

¶ 26. The Board argues that Wis. Admin. Code § UWS 4.08(2) required the closed meeting with the Chancellor. That section states:

If, after the hearing, the board decides to take action different from the recommendation of the faculty hearing committee and/or the chancellor, then before taking action the board shall consult with the faculty hearing committee and/or the chancellor, as appropriate.

The Board concludes that because the meeting was expressly authorized by the code, it did not constitute an improper ex parte communication.

¶ 27. The interpretation of an administrative rule or regulation, like the interpretation of a statute, is a question of law we review independently. An agency's interpretation of its own rules is controlling unless it is plainly erroneous or inconsistent with the language of the rule. Hillhaven Corp. v. DHFS, 2000 WI App 20, ¶ 12, 232 Wis. 2d 400, 606 N.W.2d 572. We conclude the Board's interpretation of the code as not requiring Marder's presence at the meeting with the Chancellor was plainly erroneous and inconsistent with the rest of the code's provisions.

¶ 28. Wisconsin Admin. Code § UWS 4.08(2) does not expressly state that a faculty member must be present at the consultation between the Board and the Chancellor. However, an administrative rule cannot be applied in isolation. McGarrity v. Welch Plumbing, 104 Wis. 2d 414, 427, 312 N.W.2d 37 (1981). If the rule is part of a comprehensive statutory and regulatory scheme, it must be applied in conjunction with its companion statutes and rules. Sommerfield v. Sommerfield, 154 Wis. 2d 840, 847, 454 N.W.2d 55 (Ct. App. 1990).

¶ 29. Wisconsin Admin. Code § UWS 4.05(1) describes the procedures a hearing must follow in order to protect a faculty member's due process rights. It states:

A fair hearing for a faculty member whose dismissal is sought... shall include the following:
(c) A right to be heard in his/her defense;
(e) A right to confront and cross-examine adverse witnesses;
(f) A verbatim record of all hearings, which might be a sound recording, provided at no cost.

Section UWS 4.06(1) states that "any hearing held shall comply with the requirements set forth in s. UWS 4.05." These two sections must be read in conjunction with § UWS 4.08(2), which requires a consultation between the Board and the Chancellor. Presumably the charges are discussed at the consultation. A decision is not made until after the consultation. We recognize that § UWS 4.08(2) uses language that mandates the consultation take place "after the hearing." However, the foregoing code sections demonstrate that, in reality, the consultation is a part of the overall hearing process, which is not concluded until a decision is announced. "Any hearing" must comply with § UWS 4.05. Consequently, Marder had the right to hear and refute any allegations the Chancellor raised during the consultation. Because Marder did not have that opportunity, the Board failed to comply with the requirements of § UWS 4.05.

Due Process

¶ 30. Even if the code does permit a closed meeting between the Board and the Chancellor, Marder had a constitutional due process right to hear the evidence against him and to respond to that evidence. In Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985), the United States Supreme Court discussed a public employee's property interest in continued employment: "If the government gives a public employee assurances of continued employment or conditions dismissal only for specific reasons, the public employee has a property interest in continued employment." Due to this property interest, a public employee cannot be deprived of employment without due process. Id. As the Board acknowledged, a tenured professor has a property interest in his or her continued employment. See, e.g., Slochower v. Board of Higher Educ., 350 U.S. 551 (1956); Wieman v. Updegraff, 344 U.S. 183 (1952).

¶ 31. The Loudermill Court addressed what process was due a public employee before the employee can be deprived of employment:

[Due process] requires "some kind of hearing" prior to the discharge of an employee who has a constitutionally protected property interest in his employment....
The essential requirements of due process . . . are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement.... The tenured employee is entitled to oral or written notice of the charges against him, and explanation of the employer's evidence and an opportunity to present his side of the story ....

Loudermill, 470 U.S. at 541-46 (emphasis added).

¶ 32. The Federal Court of Appeals applied Loudermill in Stone v. FDIC, 179 F.3d 1368 (Fed. Cir. 1999). Stone was terminated by the Merit Systems Protection Board from his position as a bank examiner at the Federal Deposit Insurance Corporation. He sought a review of his termination and argued ex parte communications took place between the deciding official and the official proposing his termination. Id. at 1372-73. He argued that his due process rights were violated and therefore he should be reinstated. Id. at 1373.

¶ 33. The Stone court stated:

The introduction of new and material information by means of ex parte communications to the deciding official undermines the public employee's constitutional due process guarantee of notice (both of the charges and of the employer's evidence) and the opportunity to respond. When deciding officials receive such ex parte communications, employees are no longer on notice of the reasons for their dismissal and/or the evidence relied upon by the agency. Procedural due process guarantees are not met if the employee has notice only of certain charges or portions of the evidence and the deciding official considers new and material information. It is constitutionally impermissible to allow a deciding official to receive additional material information that may undermine the objectivity required to protect the fairness of the process.

Id. at 1376. Here, when the Board consulted with the Chancellor outside Marder's presence, it potentially violated Marder's due process rights. He may have been deprived of his right to notice and opportunity to be heard if the Board received additional information. Thus, the issue now becomes whether a due process violation actually occurred.

Whether there was a due process violation

¶ 34. The Stone court noted that not every ex parte communication undermines due process guarantees. Only those that introduce "new and material information to the deciding official will violate the due process guarantee of notice." Id. at 1377.

¶ 35. The Stone court concluded it was possible the ex parte communication in that case violated Stone's due process rights. It remanded the case to the Board to determine whether the ex parte communications introduced new and material information. If the information was new and material, then Stone's due process rights were violated. Id.

¶ 36. We reach a similar conclusion here. It is undisputed that an ex parte communication took place between the Board and the Chancellor. However, as the Stone court noted, not every ex parte communication undermines due process guarantees. See id. If the meeting between the Board and the Chancellor introduced new and material information, then Marder's due process rights were violated.

Remedy

¶ 37. The circuit court remanded to the Board. However, Marder contends the Board is too tainted by the ex parte communication to fairly render a decision. Instead, Marder argues we should simply reverse the Board's decision to terminate him, pursuant to Wis. Stat. § 227.57(8). The Board argues the circuit court correctly remanded to the Board and we should do the same.

¶ 38. We choose a different route. Because not every ex parte communication is a violation of due process, it is necessary to determine whether any new or material information was discussed during the ex parte meeting. If there was, Marder had the right to notice and to be heard. However, the record is silent as to what the Board and the Chancellor discussed at their meeting.

¶ 39. The circuit court is in the best position to determine whether there was any new and material information discussed during the closed meeting. See Milwaukee Journal v. Call, 153 Wis. 2d 313, 319, 450 N.W.2d 515 (Ct. App. 1989) (the circuit court engages in fact-finding). On remand, the court may exercise its discretion in how it chooses to make that determination. It may allow discovery, take testimony or use any other method it deems appropriate. See Wis. Stat. § 227.57(1). If the court finds the ex parte communication involved new and material information, it can then determine the proper remedy under Wis. Stat. ch. 227. See Wis. Stat..§ 36.13(5). However, if there was not any new and material information, then Marder's due process rights were not violated.

By the Court. — Order reversed and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The Board twice remanded the matter to the Personnel Matters Review Committee to reconsider its conclusion.

       The deference applied to an administrative agency's interpretation of its own rules is different than the deference we give to its interpretation of a statute. Hillhaven Corp. v. DHFS, 2000 WI App 20, n.6, 232 Wis. 2d 400, 606 N.W.2d 572. Statutory interpretations are generally entitled to one of three levels of deference — great weight, due weight, or no deference. Id. However, agency interpretations of their own rules generally receive only one level of deference, called either controlling weight or great weight. Id. Despite the difference in terminology, the deference we give to an agency interpretation of its own rules is similar to the great weight standard applied to statutory interpretations. Id. Both turn on whether the agency's interpretation is reasonable and consistent with the meaning or purpose of the regulation or statute. Id.


source: Caselaw Access Project

author: ANDERSON, EJ.

license: Public Domain

text:
    Town of Cedarburg, Plaintiff-Respondent, v. J. Dale Dawson and Gudrun Dawson, Defendants-Appellants.
    Court of Appeals

      No. 03-2347.

      Oral argument June 23, 2004.

    Decided August 11, 2004.

    2004 WI App 174
    (Also reported in 687 N.W.2d 841.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of T. Michael Schober and John M. Bruce of Schober, Schober & Mitchell, S.C., New Berlin. There was oral argument by John M. Bruce.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Brad M. Hoeft and Ralph J. Huirás of Huirás, Farrell & Antoine, S.C., Port Washington. There was oral argument by Ralph J. Huirás.

      A nonparty brief was filed by Joanne F. Kloppen-burg, assistant attorney general, and Peggy A. Lauten-schlager, attorney general, for the Wisconsin Department of Natural Resources. There was an appearance at oral argument by Joanne F. Kloppenburg as an interested party.
    Before Anderson, EJ., Brown and Nettesheim, JJ.
   ANDERSON, EJ.

¶ 1. J. Dale Dawson and Gu-drun Dawson appeal a circuit court grant of summary judgment in favor of the Town of Cedarburg's objection to the Dawsons' application for registration of a parcel of land in Cedarburg. The Dawsons argue that their Cedarburg parcel is able to be registered because it is contiguous to their existing Town of Jackson quarry and meets the specific requirements for registration pursuant to the "Registration of contiguous parcels" language found in Wis. Admin. Code § NR 135.57. We disagree. The plain language of the rules requires that nonmetallic mining be a permitted or conditional use for all registered parcels, contiguous or not. In the alternative, the Dawsons argue that they were not subject to registration given the supreme court's adoption of the diminishing asset rule. We again disagree. The common law rule of diminishing assets is not applicable to this case. We affirm the judgment of the circuit court.

¶ 2. Facts. The facts are undisputed. The Daw-sons are the owners of a 155-acre quarry site in Jackson, which is located in Washington county. They also own 47 contiguous acres in the Cedarburg located in Ozaukee county. Separating the Dawsons' parcels in Cedarburg and Jackson is Wausaukee Road.

¶ 3. This case arises from the Dawsons' attempt to register their 47-acre parcel in Cedarburg as a marketable nonmetallic mineral deposit under Wis. Admin. Code ch. NR 135.

¶ 4. In 1994, Cedarburg changed its zoning code to provide that only nonmetallic mining that was in operation prior to October 5, 1994, could be approved. On July 16, 2001, Cedarburg received a copy of a proposed registration of a marketable nonmetallic mineral deposit executed by the Dawsons. The proposed registration included legal descriptions of lands owned by the Dawsons in both Cedarburg and Jackson.

¶ 5. The proposed registration included an attached exhibit, "Exhibit B," which contained the legal description for the Dawsons' 47-acre Cedarburg parcel. It stated that the parcels listed in Exhibit B are "zoned AGRICULTURE-2 (A-2)" as of the date that the notice is provided to Cedarburg's zoning authorities "pursuant to NR 135.56(4)." It further asserted, "In the A-2 District, non-metallic mining is a conditional use in that, in the A-2 District regulations, it is expressly stated that non-metallic mining is allowed as a conditional use."

¶ 6. Section 10-1-76 of Cedarburg's zoning code provides in relevant part: "Mining extraction operations, including washing, crushing or other processing, are conditional uses and may be permitted in the ... A-2 Prime Agricultural District. .. provided they were in existence prior to October 5, 1994." The Dawsons' Cedarburg parcel has never been used for nonmetallic mining operations and, thus, was not used for mineral extraction operations prior to October 5, 1994.

¶ 7. The Dawsons' proposed registration indicated that their Cedarburg parcel was contiguous to their Jackson parcel. The Dawsons operate an active quarry in Jackson pursuant to a conditional use permit under the Jackson zoning regulations. A separate copy of the proposed registration was contemporaneously submitted to Jackson.

¶ 8. The Dawsons'parcel in Jackson met all of the registration requirements of Wis. Admin. Code § NR 135.56. The registration of the Jackson parcel was accomplished with the recording of the registration information in the Washington County Register of Deeds office. See § NR 135.56(6) ("Registration shall be accomplished by recording the information required by this section ... in the office of registrar of deeds ... in the county in which the land is located ....").

¶ 9. On September 7, 2001, Cedarburg provided to the Dawsons its Notice of Intent to Object to Proposed Registration of Non-Metallic Mineral Deposits for their Cedarburg parcel pursuant to Wis. Admin. Code § NR 135.58. Section NR 135.58 sets forth the procedures and the only grounds for a zoning authority to object to a proposed registration under the subchapter. Cedarburg's objection was based upon § NR 135.58(l)(a), which provides as a basis for objection that "[z]oning in effect on the date that notice of intent to register land containing a deposit was provided to the zoning authority does not permit or conditionally permit nonmetallic mining under the criteria in s. NR 135.56(3)(b)."

¶ 10. Cedarburg's Notice of Intent to Object advised the Dawsons that under Cedarburg's code of ordinances (Sec. 10-1-76), nonmetallic mineral extraction is a conditionally permitted use in the applicable zoning district provided it was in existence prior to October 5,1994. Cedarburg informed the Dawsons that because there were never any mining operations conducted on the Dawsons' Cedarburg parcel, such operations were not permitted or conditionally permitted on their parcel.

¶ 11. On October 18, 2001, Cedarburg filed a summons and complaint in the Ozaukee County Circuit Court pursuant to Wis. Admin. Code § NR 135.58(3) in order to sustain its objection to the Dawsons' proposed registration of their Cedarburg parcel as a marketable nonmetallic mineral deposit. Cedarburg alleged that the Dawsons' proposed registration was not in conformity with Wis. Admin. Code § NR 135.56 because the zoning in effect on the date of the registration proposal did not permit nonmetallic mining. The Dawsons, in turn, argued that by sending the single registration, they complied with the requirements of Wis. Admin. Code § NR 135.57.

¶ 12. The circuit court granted summary judgment in favor of Cedarburg declaring that the Dawsons' Cedarburg parcel is not subject to registration of marketable nonmetallic mineral deposits under Wis. Admin. Code ch. NR 135. The court determined that the Daw-sons did not comply with Wis. Admin. Code § NR 135.56(3)(a), which provides: "A person wishing to register land pursuant to this subchapter shall provide evidence that nonmetallic mining is a permitted or conditional use for the land under zoning in effect on the day in which notice is provided to the zoning authorities ...." The court observed that Cedarburg has the power under Wis. Stat. § 62.23(7)(a) (2001-02) to set its zoning laws in accordance with promoting health, safety, morals or the. general welfare of the community. The Dawsons appeal.

¶ 13. Standard of Review. The parties dispute the interpretation of the administrative rules promulgated by the Department of Natural Resources (DNR). We interpret administrative regulations in the same manner as we interpret statutes. County of Milwaukee v. Superior of Wis., Inc., 2000 WI App 75, ¶ 11, 234 Wis. 2d 218, 610 N.W.2d 484. "A statute should be construed so that no word or clause shall be rendered surplusage and every word if possible should be given effect." Donaldson v. State, 93 Wis. 2d 306, 315, 286 N.W.2d 817 (1980). We "may not resort to statutory construction if the statute is clear on its face .... We will apply statutory construction to agency rules only if the rule or rules are ambiguous." County of Milwaukee, 234 Wis. 2d 218, ¶ 11.

¶ 14. However, the DNR's interpretation of its own administrative rules is entitled to controlling weight, unless the interpretation is inconsistent with the language of the regulation or clearly erroneous. See Plevin v. DOT, 2003 WI App 211, ¶ 13, 267 Wis. 2d 281, 671 N.W.2d 355. We accord the DNR great weight deference because:

An administrative agency knows the specific purposes of the regulations it has promulgated. Moreover, an agency has a certain expertise in the area it is called upon to regulate. Thus we believe that an agency is in the best position to interpret its own regulations in accordance with their underlying purposes.

Id. (citation omitted).

¶ 15. Chapter NR 135, Wisconsin Administrative Code: a consensus product of interested parties. The history of Wis. Admin. Code ch. NR 135 demonstrates that it "was drafted as a consensus product with participation by all major interest groups." See Memorandum from Secretary George E. Meyer to the Natural Resources Board (August 14, 1998). Compromises were made in order to craft the "ideal" rule — one that would be workable and acceptable to everyone concerned. See id.

¶ 16. In 1994, Governor Tommy Thompson signed 1993 Wis. Act 464 into law and created legislation directing the DNR to draft rules establishing a statewide nonmetallic mining reclamation program to be implemented at the local level. Memorandum from Secretary George E. Meyer to the Natural Resources Board (February 10, 2000) (see attached Order of the State of Wisconsin Natural Resources Board Creating Rules).

¶ 17. The DNR proposed such rules under Natural Resources Board Order No. SW-18-95 and held several hearings in this regard. As a result of these hearings, the DNR decided to seek advice on improving the enabling legislation. The DNR engaged in "extensive outreach during the [four years of drafting Wis. Admin. Code ch. NR 135] to involve impacted parties in the process." Memorandum from Secretary George E. Meyer to the Natural Resources Board (August 14, 1998). Following "extensive consultation" with "industry, government and interested parties," these legislative changes were included in the 1998-99 Budget Bill, 1997 Act 27. Memorandum from Secretary George E. Meyer to the Natural Resources Board (February 10, 2000) (see attached Order of the State of Wisconsin Natural Resources Board Creating Rules).

¶ 18. The relevant registration rules under Chapter NR 135, Wisconsin Administrative Code. In its amicus brief, the DNR explains that the rules disputed here are part of an entire chapter promulgated in 2000 to address comprehensively what was deemed necessary to require reclamation of nonmetallic mining sites statewide. See Wis. Admin. Code § NR 135.01(1). The chapter concludes with rules establishing a procedure for registering marketable nonmetallic mineral deposits.

¶ 19. A landowner may register land that is certified as containing marketable nonmetallic mineral deposits, and for which nonmetallic mining is permitted or is a conditional use under existing zoning. Wis. Admin. Code §§ NR 135.55, 135.56(l)-(3): The registration expires after ten years, and may be automatically renewed for an unlimited number of ten-year periods as long as active mining is taking place, or for one additional ten-year period if mining has not yet taken place. Wis. Admin. Code § NR 135.59.

¶ 20. One registration may include more than one parcel, if the parcels are owned by one person and share a common boundary point or line, even if separated by a road or easement. Wis. Admin. Code §§ 135.53(1), 135.57.

¶ 21. Registration does not relieve the landowner from having to obtain all permits and approvals required by local government zoning and other ordinances. Wis. Admin. Code § NR 135.62(4)(c). However, registration protects the mineral deposits from any change in zoning that would interfere with their extraction, see § NR 135.62(1), with one exception: A zoning authority may object to a registration if nonmetallic mining is not a permitted or conditional use for the land to be registered under existing zoning, Wis. Admin. Code § NR 135.58(l)(a).

¶ 22. Discussion. On appeal, the Dawsons argue that their Cedarburg parcel is able to be registered because it is contiguous to their existing Jackson quarry and meets the specific requirements for registration pursuant to the "Registration of contiguous parcels" language found in Wis. Admin. Code § NR 135.57. We disagree. The plain language of the rules requires that nonmetallic mining be a permitted or conditional use for all registered parcels, contiguous or not.

¶ 23. The rules permit a landowner to register contiguous parcels in one registration, but only if one registration is possible. The rules do not relieve the landowner from showing that all the requirements for registration are otherwise met. The plain language of the rules evinces both recognition of mining interests and respect for local planning and zoning.

¶ 24. In addition, in an analysis submitted to the DNR by the advisory committee to assist in its evaluation of the rules, the following was clarified: "The key requirement is that nonmetallic mines be reclaimed to a beneficial post-mining land use after active mining is ended." See Memorandum from Secretary George E. Meyer to the Natural Resources Board (February 10, 2000) (see attached Order of the State of Wisconsin Natural Resources Board Creating Rules).

¶ 25. The contiguous parcels rule, Wis. Admin. Code § NR 135.57, must he read together with the other rules in the subchapter, including the registration requirements rule, Wis. Admin. Code § NR 135.56. See Jarrett v. LIRC, 2000 WI App 46, ¶ 8, 233 Wis. 2d 174, 607 N.W.2d 326. Section NR 135.56 sets out the elements of one registration: professional certification of a marketable nonmetallic mineral deposit, evidence of the absence of zoning or presence of zoning that permits nonmetallic mining as a use, certification of the landowner, and recording as a deed notice in the county (significantly, not "counties") in which the land is located. One registration does not encompass more than one deed notice in one county.

¶ 26. Consequently, a single registration for two parcels in two different counties would fall short of statutory compliance because, for the parcel for which nonmetallic mining is not a permitted or conditional use, the registration would not provide the evidence that is required by Wis. Admin. Code § NR 135.56(3)(a) ("A person wishing to register land pursuant to this subchapter shall provide evidence that nonmetallic mining is a permitted or conditional use .. .." (emphasis added)). It follows then that the procedural relief provided by Wis. Admin. Code § NR 135.57 does not apply to contiguous parcels in more than one county and, therefore, does not exempt a registrant from providing the zoning evidence required in § NR 135.56.

¶ 27. Moreover, several rules of statutory construction lend further support to our conclusion that the procedural relief provided by Wis. Admin. Code § NR 135.57 cannot apply to contiguous parcels in more than one county. First, Wis. Admin. Code § NR 135.56 should be construed so that every word, if possible, is given effect and no word or clause is rendered surplusage. See Donaldson, 93 Wis. 2d at 315. Here, § NR 135.56(3)(a) states that "[a] person wishing to register land pursuant to this subchapter shall provide evidence that nonmetallic mining is a permitted or conditional use . . . ." Thus, § NR 135.56(3)(a) imposes a requirement that applies to all land proposed for registration "pursuant to this subchapter." And, § NR 135.57 permits "one registration under this subchapter" for certain "[c]on-tiguous parcels of land." Hence, § NR 135.57 allows a procedural shortcut for registration. However, this procedural shortcut does not exempt contiguous parcels from the requirement in § NR 135.56(3)(a). If we were to construe such an exemption, it would violate statutory construction rules by effectively rendering the use of "pursuant to this subchapter" and "under this sub-chapter" superfluous.

¶ 28. Second, to allow registration of land for which nonmetallic mining is not a permitted or conditional use, would be to turn a mandatory substantive requirement into an empty procedural requirement. It would, after all, be meaningless to allow registration of land that cannot be used for nonmetallic mining. See Cepukenas v. Cepukenas, 221 Wis. 2d 166, 175, 584 N.W.2d 227 (Ct. App. 1998) ("We must construe statutes so as to not render them meaningless.").

¶ 29. Third, the contiguous parcels provision, Wis. Admin. Code § NR 135.57, contains the word "may," indicating it is a permissive or discretionary provision. See City of Wauwatosa v. Milwaukee County, 22 Wis. 2d 184, 191, 125 N.W.2d 386 (1963) (Where the supreme court characterized "may" as permissive and "shall" as mandatory unless a different construction is required by the statute to carry out the clear intent of the legislature.). In contrast, Wis. Admin. § NR 135.56 introduces each of six substantive requirements with the word "shall," indicating this is a mandatory provision. See City of Wauwatosa, 22 Wis. 2d at 191. Additionally, when the words "shall" and "may" are used in the same section, it can be inferred that the legislature was aware of the different denotations. State ex rel. Reimann v. Circuit Court for Dane County, 214 Wis. 2d 605, 615, 571 N.W.2d 385 (1997). The permissive provision, § NR 135.57, does not trump the mandatory registration requirements provision, § NR 135.56.

¶ 30. Our decision is further reinforced by the promulgation history of Wis. Admin. Code ch. NR 135. This history verifies that ch. NR 135 was designed to balance nonmetallic mining interests with respect for local zoning and planning. The DNR engaged in "extensive outreach during the [four years of drafting ch. NR 135] to involve impacted parties in the process." Memorandum from Secretary George E. Meyer to the Natural Resources Board (August 14, 1998). Only after "extensive consultation" with "industry, government and interested parties," were the rules included in the 1998-99 Budget Bill, 1997 Act 27. See Memorandum from Secretary George E. Meyer to the Natural Resources Board (February 10, 2000) (see attached Order of the State of Wisconsin Natural Resources Board Creating Rules).

¶ 31. Wisconsin Admin. Code ch. NR 135 is unambiguous and represents a product of well-reasoned compromise: It gives the local zoning boards authority to require reclamation and, at the same time, gives the landowners twenty years of protected use of their deposits. In so doing, it makes clear that neither § NR 135.56(3) nor § NR 135.57 exempts contiguous parcels in separate counties from the registration requirement.

¶ 32. The Dawsons' alternative argument is that they were not subject to registration given the supreme court's adoption of the diminishing asset rule. The diminishing asset rule is not applicable to the case at bar. The two cases relied on by the Dawsons for this argument are easily distinguishable. In both, the contiguous parcels were in the same zoning jurisdiction, and all parcels were subject to the same zoning limitations. Smart v. Dane County Bd. of Adjustments, 177 Wis. 2d 445, 449-50, 501 N.W.2d 782 (1993) (all land was in Dane county and was arbitrarily divided into two 40-acre parcels irrespective of zoning classification); Sturgis v. Winnebago County Bd. of Adjustment, 141 Wis. 2d 149, 151-52, 413 N.W.2d 642 (Ct. App. 1987) (both parcels were in Winnebago county and were zoned M-3, which was a zoning district for mineral extraction uses). In contrast, the Dawsons' contiguous parcels are in different zoning jurisdictions subject to different zoning classifications.

¶ 33. Conclusion. The rules allow a streamlining of the registration procedure for contiguous parcels, but do not relax the substantive registration requirements. This result mirrors the rules' recognition of the need to protect the interests in nonmetallic mineral deposits, while simultaneously respecting local planning and zoning authority.

By the Court. — Judgment affirmed.

       The purpose of Wis. Admin. Code ch. NR 135 "is to require reclamation of nonmetallic mining sites." Wis. Admin. Code § NR 135.01(1). The specific rules we are required to interpret are Wis. Admin. Code §§ NR 135.56 and 135.57. Sec. NR 135.56 addresses "Registration requirements" and provides:
      (1) The registration shall include a legal description delineating the land and a certification and delineation by a registered professional geologist or a registered professional engineer that the land has a marketable nonmetallic mineral deposit. In making this certification, the registered geologist or registered professional engineer shall describe the type and quality of the nonmetallic mineral deposit, the areal extent and depth of the deposit, how the deposit's quality, extent, location and accessibility contribute to its marketability, and the quality of the deposit in relation to current and anticipated standards and specifications for this type of material. This certification shall be supported by logs or records of drilling, boring, geophysical surveys, records of physical inspections of outcrops or equivalent scientific data.
      (2) The certification shall include the registered geologist's or registered professional engineer's seal affixed to this statement:
      "I hereby certify that this document contains a description of a marketable nonmetallic mineral deposit consistent with the requirements of Chapter NR 136, Wisconsin Administrative Code."
      (3) (a) A person wishing to register land pursuant to this subchapter shall provide evidence that nonmetallic mining is a permitted or conditional use for the land under zoning in effect on the day in which notice is provided to the zoning authorities pursuant to sub. (4).
      (b) Nonmetallic mining is a permitted or conditional use for land if any of the following apply:
      1. There is no existing zoning.
      2. The land is in a zoning category that expressly states that nonmetallic mining is either a permitted use or may be allowed as a conditional use.
      3. The land is in a zoning category that allows general uses and the zoning authority allows nonmetallic mining as a permitted or conditional use as a subset of the general uses listed for that zoning category, even though nonmetallic mining is not expressly referred to in the zoning.
      (c) If the existing zoning requires a conditional use permit for nonmetallic mining, there is no need to apply for or obtain a conditional use permit in order to register the land pursuant to this subchapter.
      (4) A copy of the proposed registration and supporting information shall be provided to each zoning authority if the land is zoned, the county regulatory authority, the municipal regulatory authority if one exists, the city, village or town in which the deposit is located, and the department at least 120 days prior to filing of the registration. Each zoning authority shall maintain records of proposed registrations of lands containing marketable nonmetallic mineral deposits which they shall receive in a manner of the zoning authority's choosing.
      (5) The registration shall include a certification by the landowner and binding on the landowner and his or her successors in interest that the landowner will not undertake any action that would permanently interfere with present or future extraction of the nonmetallic mineral deposit for the duration of the registration.
      (6) Registration shall be accomplished by recording the information required by this section, the date of recording, and the date registration expires as a deed notice in the office of registrar of deeds pursuant to s. 59.43(l)(a), Stats., in the county in which the land is located no sooner than 121 days and no later than 240 days after notice to zoning authorities has been provided pursuant to sub. (4).
      Wisconsin Admin. Code § NR 135.57 addresses "Registration of contiguous parcels" and provides:
      Contiguous parcels of land meeting all of the following criteria may be included in one registration under this subchapter.
      (1) The parcels are owned by the same person.
      (2) The parcels contain a marketable nonmetallic mineral deposit as defined in s. NR 135.54.
      (3) The parcels are contiguous as defined in s. NR 135.53(1).

       The Town of Cedarburg correctly points out that the Dawsons' statement of facts fails to provide any references to the record or to their appendix. Such failure to cite to the record is a violation of the Rules of Appellate Procedure under Wis. Stat. Rule 809.19(1)(d) (2001-02), which requires the appellant to set out facts "relevant to the issues presented for review, with appropriate references to the record." The Dawsons are admonished for having placed "a completely unwarranted burden" on this court to decide an appeal presented on a brief where neither record references nor appendix references are given. See Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957).

        The Town of Cedarburg provides this court clarification of the facts with appropriate references to the record and to the appellant's appendix. We acknowledge and appreciate the respondent's assistance in this regard, even though it is the appellant's responsibility to ensure that the record is sufficient to facilitate appellate review. See Seltrecht v. Bremer, 214 Wis. 2d 110, 125, 571 N.W.2d 686 (Ct. App. 1997).
      Given the Dawsons' violation and the Town of Cedarburg's clarification, we hold the Dawsons to the facts as clarified by the Town of Cedarburg.

       Cedarburg further alleged that the Dawsons' Cedarburg parcel in Ozaukee county is not contiguous with the Jackson parcel in Washington county because of the different zoning authorities that the parcels are subject to. We agree with the circuit court that pursuant to Wis. Admin. Code ch. NR 135, the two parcels are contiguous. We need not address this issue any further.

       This court is grateful to the DNR for its participation as an amicus at our request. The DNR's contribution, in its brief and at oral argument, was invaluable.

       A landowner may register land that is certified as containing marketable nonmetallic mineral deposits and for which nonmetallic mining is permitted or conditional use under existing zoning. Wis. Admin. Code §§ NR 135.55, 135.56(l)-(3). The registration expires after ten years and may be automatically renewed for an unlimited number of ten-year periods as long as active mining is taking place, or for one additional ten-year period if mining has not yet taken place. Wis. Admin. Code § NR 135.59.


author: ANDERSON, RJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Wallace I. Stenzel, Defendant-Appellant.
    Court of Appeals

      No. 03-2974-CR.

      Submitted on briefs June 2, 2004.

    Decided August 11, 2004.

    2004 WI App 181
    (Also reported in 688 N.W.2d 20.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs oí Martin E. Kohler and Donald J. Chewning of Kohler & Hart, LLP, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Gregory M. Weber, assistant attorney general, and Peggy A. Lautenschlager, attorney general.

      Before Anderson, RJ., Brown and Snyder, JJ.

       In a decision issued prior to truth-in-sentencing, the Wisconsin Supreme Court held that a circuit court was permitted to set a parole eligibility date beyond a defendant's expected lifetime. State v. Setagord, 211 Wis. 2d 397, 415-16, 565 N.W.2d 506 (1997).

   ANDERSON, RJ.

¶ 1. Wallace I. Stenzel challenges the fourteen-year sentence imposed after his conviction on two counts of homicide by intoxicated use of a vehicle and one count of injury by intoxicated use of a vehicle. He asserts that the circuit court erroneously exercised its sentencing discretion by placing too much weight on the gravity of the offense and ignoring the many positive attributes of his seventy-eight years as a productive member of society. We conclude that the circuit court properly exercised its sentencing discretion when it assigned weight to what it concluded were the relevant sentencing factors; therefore, we affirm.

¶ 2. On January 25, 2002, Stenzel, who was seventy-seven years old, had lunch with friends at a yacht club and, as was his habit, he had two alcoholic drinks. After lunch, he headed home to Thiensville on 1-43. Short of his destination, he crossed the median into the southbound lanes and struck a car being driven by Kathryn Szeflinski in which her two children, Jake, born January 27, 1997, and Lauren, born August 11, 2001, were riding in safety seats. Regrettably, Jake and Lauren died as the result of injuries sustained in the accident. Their mother survived her injuries.

¶ 3. Stenzel was charged with multiple counts: two counts of homicide by intoxicated use of a vehicle, Wis. Stat. §§ 940.09(l)(a) and 939.50(3)(b) (2001-02); two counts of homicide by intoxicated use of a vehicle, prohibited alcohol concentration, §§ 940.09(l)(b) and 939.50(3)(b); one count of causing injury by intoxicated use of a vehicle, Wis. Stat. §§ 346.63(2)(a)l and 346.65(3m); and, one count of causing injury by operating a vehicle with a prohibited alcohol concentration, §§ 346.63(2)(a)2 and 346.65(3m). On October 8, 2002, Stenzel entered no contest pleas to two counts of homicide by intoxicated use of a vehicle and the count for causing injury by intoxicated use of a vehicle. In exchange for his plea, the State agreed that at sentencing it would argue the facts but not make a specific sentencing recommendation.

¶ 4. Stenzel was seventy-eight years old at the sentencing on January 2, 2003. The circuit court had the benefit of presentence investigation reports prepared by the State and Stenzel's counsel. True to the plea agreement, the State did not make any specific sentencing recommendation but did offer a detailed recitation of the facts of the fatal accident. The court also heard statements by the parents of the deceased children, argument from Stenzel's counsel, and a statement by Stenzel. On each count of homicide by intoxicated use of a vehicle, the court imposed four years of confinement in prison, to be served consecutively. The court imposed six years of extended supervision on those convictions. And on the count of causing injury by intoxicated use of a vehicle, the court imposed a concurrent one-year term in the county jail.

¶ 5. Stenzel pursued postconviction relief in the form of a motion for resentencing. The heart of the motion was his contention that because of his age— seventy-eight years old at sentencing — the eight years of initial confinement was virtually a life sentence. He contended that the court- erroneously exercised its discretion by placing too much emphasis on the seriousness of the offense, the sentence was unduly harsh and unconscionable, and the sentence constituted cruel and unusual punishment. The circuit court denied Stenzel's motion and on appeal he raises the same arguments.

¶ 6. In State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, the Wisconsin Supreme Court revisited the seminal case in sentencing jurisprudence, McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971):

Now, in the wake of truth-in-sentencing legislation, we reinvigorate the McCleary directive that the exercise of sentencing discretion must be set forth on the record. Although we do not change the appellate standard of review, appellate courts are required to more closely scrutinize the record to ensure that discretion was in fact exercised and the basis of that exercise of discretion [is] set forth.

Gallion, 270 Wis. 2d 535, ¶ 4 (citation omitted).

¶ 7. The appellate standard of review is limited to determining if the sentencing court erroneously exercised its sentencing discretion. Id,., ¶ 17. "When discretion is exercised on the basis of clearly irrelevant or improper factors, there is an erroneous exercise of discretion." Id. When the exercise of discretion has been demonstrated, we follow a consistent and strong policy against interference with the discretion of the trial court in passing sentence: "[Sentencing decisions of the circuit court are generally afforded a strong presumption of reasonability because the circuit court is best suited to consider the relevant factors and demeanor of the convicted defendant." Id., ¶ 18 (citation omitted). The "sentence imposed in each case should call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant." Id., ¶ 23 (citation omitted).

¶ 8. In Gallion, the supreme court reaffirmed the core concepts of McCleary, that to properly exercise its discretion, a circuit court must provide a rational and explainable basis for the sentence. Gallion, 270 Wis. 2d 535, ¶¶ 22, 39. It must specify the objectives of the sentence on the record, which include, but are not limited to, the protection of the community, punishment of the defendant, rehabilitation of the defendant, and deterrence of others. Id., ¶ 40. It must identify the general objectives of greatest importance, which may vary from case to case. Id., ¶ 41. The circuit court must also describe the facts relevant to the sentencing objectives and explain, in light of these facts, why the particular component parts of the sentence imposed advance the specified objectives. Id., ¶ 42. Similarly, it must identify the factors that were considered in arriving at the sentence and indicate how those factors fit the objectives and influence the sentencing decision. Id., ¶ 43. Gallion unmistakably requires that "[w]hat has previously been satisfied with implied rationale must now be set forth on the record." Id., ¶ 38.

In short, we require that the court, by reference to the relevant facts and factors, explain how the sentence's component parts promote the sentencing objectives. By stating this linkage on the record, courts will produce sentences that can be more easily reviewed for a proper exercise of discretion.

Id., ¶ 46.

¶ 9. While Gallion revitalizes sentencing jurisprudence, it does not make any momentous changes. The weight to be given each factor is still a determination particularly within the wide discretion of the sentencing judge. Anderson v. State, 76 Wis. 2d 361, 364, 251 N.W.2d 768 (1977). Moreover, when we review a sentence, we still look to the entire record, including any postconviction proceedings and to the totality of the court's remarks. See State v. Santana, 220 Wis. 2d 674, 683, 584 N.W.2d 151 (Ct. App. 1998) ("The transcripts of the sentencing hearing as well as several postconviction hearings make an extensive record of the trial court's comments at sentencing and its explanation for what was considered."). Having been reinvigorated, we now turn to Stenzel's arguments.

¶ 10. Stenzel faults the circuit court for placing too much weight on one of the three mandatory sentencing factors — the gravity of the offense — and ignoring the significant positive factors weighing in his favor. He maintains that his "[a]ge may be the most significant factor not adequately considered by the circuit court." He argues that considering his age of seventy-eight years, a sentence of eight years of initial confinement is a de facto life sentence. Stenzel asserts:

Age of the defendant is critical for many reasons. Any sentence is more harsh to an older person such as Stenzel because it condemns him to spend a greater percentage of his remaining life in prison. Thus, the circuit court's sentencing decision should account for the limited number of years Stenzel has left to live. Additionally, the toll of incarceration will be greater on someone of his age. The elderly are physically and psychologically less able to cope with the stress caused by incarceration. Finally, from a societal standpoint, little can be gained by warehousing elderly inmates. At a certain point, the inmate will need care such as that provided by a nursing home. The state prison system is ill-equipped to provide that care. This is to say nothing of the monetary cost to society. Ultimately, the question must arise as to why the State is incarcerating those too frail to either commit more crimes or pose a danger to anyone. (Citations omitted.)

¶ 11. Stenzel contends that the court erroneously exercised its discretion in not giving sufficient weight to his age as a mitigating factor and in not finding his life expectancy to be relevant. He faults the court for using this case to deliver a message to the community about the very real dangers of drinking and driving. He asserts that "the wrong message was sent: the message that the justice system inflexibly exerts retribution upon even those members of society, such as Stenzel, who deserve its leniency." Finally, he claims that the sentence imposed was unduly harsh and unconscionable because it is likely he will not survive the sentence imposed.

¶ 12. We agree with Stenzel that his age is a factor that the circuit court may consider as an aggravating or mitigating factor when imposing sentence. See Gallion, 270 Wis. 2d 535, ¶ 43 n.ll. In this case, the court did consider Stenzel's age. It started its sentencing comments by recognizing that Stenzel had "a long history of being a productive and abiding member of our society." At the postconviction hearing, the court again commented that "I don't think I'll see a defendant in my lifetime who has led such an outstanding life . .. ." The court also took Stenzel's age into consideration when it concluded that he had few rehabilitative needs and posed a low risk of reoffending.

¶ 13. However, the court did not place any weight on Stenzel's age because it concluded that the gravity of the offense was enormous. It explained at the postcon-viction hearing that at sentencing it was required to balance Stenzel's exemplary life against the gravity of the offense. The court struck a proper balance at sentencing. It observed that the two children were innocent victims who were passengers in safety seats in the rear of their mother's car when the car driven by Stenzel crossed the median and slammed into their car. The court stated that Stenzel's act of driving after drinking was a volitional act and the deaths of the two children could have been avoided. The court included in the gravity of the offense the impact on the parents and on society, which lost two young children with their entire lives before them and lost Stenzel, who had been a productive member of society. The court also stated that because efforts at curbing drunk driving had not succeeded, it was necessary to send a message to the public that deaths caused by intoxicated drivers would be severely punished.

¶ 14. The circuit court was correct in its assessment of the gravity of the offense. In 1957, the United States Supreme Court commented that the increasing slaughter on our highways perpetrated by drunk drivers "now reaches the astounding figures only heard of on the battlefield." Breithaupt v. Abram, 352 U.S. 432, 439 (1957). The most recent statistics available show that nationally there were an estimated 258,000 injuries and 17,419 fatalities in alcohol-related crashes in 2002; that is the equivalent of one alcohol-related fatality every thirty minutes. Nat'l Highway Traffic Safety Admin., U.S. Dep't of Transp., DOT HS 809 606, Traffic Safety Facts 2002, at 1 (2002).

¶ 15. The Wisconsin Supreme Court has also recognized the drunk driving plague:

Drunk driving is indiscriminate in the personal tragedy of death, injury, and suffering it levies on its victims. It may transform an innocent user of a highway into a victim at any time — with no advance notice and no opportunity to be heard. It is a tragedy where the intoxicated driver and the victim are often unwittingly the same person.
It is also a scourge on society: drunk driving exacts a heavy toll in terms of increased health care and insurance costs, diminished economic resources, and lost worker productivity. It is an affliction which produces no offsetting human or economic benefits; it engenders no positive human or economic incentive. It destroys and demoralizes personal lives and shocks society's conscience. It has no legitimate place in our society.

State v. Nordness, 128 Wis. 2d 15, 33-34, 381 N.W.2d 300 (1986). In Wisconsin, the carnage is just as shocking as it is nationally: 292 fatalities and 6570 injuries in 2002 — a death or injury every seventy-seven minutes. Wis. Dep't of Transp., 2002 Wisconsin Alcohol Traffic Facts, at iv, 2 (Feb. 2004).

¶ 16. We conclude that the circuit court appropriately exercised its discretion when it did not give Stenzel's age the overriding and mitigating significance that he would have preferred. It remains within the discretion of the circuit court to discuss only those factors it believes are relevant, State v. Wickstrom, 118 Wis. 2d 339, 355, 348 N.W.2d 183 (Ct. App. 1984), and the weight that is attached to a relevant factor in sentencing is also within the wide discretion of the sentencing court. State v. Perez, 170 Wis. 2d 130, 143, 487 N.W.2d 630 (Ct. App. 1992). The circuit court explicitly linked the sentence imposed to the gravity of the offense and the need to send a message to the public. See Gallion, 270 Wis. 2d 535, ¶ 46. It was permissible for the court to impose a stiff sentence to emphasize society's concern with the gravity of the offense. Roehl v. State, 77 Wis. 2d 398, 420, 253 N.W.2d 210 (1977). Similarly, in sending a message to the public that a death caused by intoxicated use of a vehicle would be dealt with harshly, the circuit court was appropriately considering the deterrence effect of the sentence. See Harris v. State, 78 Wis. 2d 357, 370, 254 N.W.2d 291 (1977).

¶ 17. Stenzel faults the court for not assigning any relevancy to his life expectancy. He argues that he was seventy-eight years old at the sentencing and the eight years of initial confinement is very close to the 10.4 years of his life expectancy, thus, virtually guaranteeing that he will serve a life sentence. We repeat that it is within the discretion of the circuit court to determine what is relevant to the sentence. Perez, 170 Wis. 2d at 143. Generally, courts that have addressed similar arguments have not been inclined to consider life expectancy as a relevant factor in sentencing. See Cristina J. Pertierra, Note and Comment, Do The Crime, Do The Time: Should Elderly Criminals Receive Proportionate Sentences? 19 Nova L. Rev. 793, 812-818 (1995) (collecting cases).

¶ 18. Several cases illustrate the approach other courts have taken. In Palermo v. United States, 182 F.3d 922 (7th Cir. June 17, 1999) (unpublished order), the defendant claimed his trial counsel was ineffective. "In a nutshell, Palermo's claim is that he was 74 years old and in less than ideal health when he was sentenced, and his lawyer should have argued that a long term of imprisonment.. . amounted to an 'effective life sentence." ' Id. at 2. The Seventh Circuit rejected the argument stating, "The claim that a court must consider life expectancy in imposing sentences under statutes providing maximum penalties expressed in years is without support." Id. In United States v. O'Driscoll, 761 F.2d 589, 599 (10th Cir. 1985), another federal circuit rejected the argument that a sentence exceeding the defendant's life expectancy was improper:

It is fundamental that punishment should be tailored to the particular criminal and not necessarily to the severity of the crime. Certainly, the sentence imposed in the case at bar was fine-tuned to the particular criminal, O'Driscoll. Rehabilitation is not the only constitutionally permissible goal of incarceration; retribution is equally permissible. (Citations omitted.)

¶ 19. In Alvarez v. State, 358 So. 2d 10, 11, 12 (Fla. 1978), the Florida Supreme Court considered the certified question, "Is a sentence of imprisonment for a term of years greater than the life expectancy of the sentenced person lawful" and held:

We reject the notion that an individual's life expectancy should be used ... to mark the longest term which a particular defendant should serve. Any sentence, no matter how short, may eventually extend beyond the life of a prisoner. Mortality and life expectancy are irrelevant to limitations on the terms of incarceration set by the Legislature for criminal misconduct. (Footnote omitted.)

¶ 20. We agree with these other jurisdictions that the defendant's life expectancy, coupled with a lengthy sentence, while perhaps guaranteeing that the defendant will spend the balance of his or her life in prison, does not have to be taken into consideration by the circuit court. If the circuit court chooses to consider a defendant's life expectancy, then it must explain, on the record, how the defendant's life expectancy fits into the sentencing objectives. See Gallion, 270 Wis. 2d 535, ¶ 46.

¶ 21. Finally, Stenzel asserts that the court erroneously exercised its discretion because the sentence is unduly harsh and unconscionable. When a defendant argues that his or her sentence is unduly harsh or excessive, we will hold that the sentencing court erroneously exercised its discretion "only where the sen-' tence is so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances." Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975).

¶ 22. We conclude that the sentence is not so excessive as to be unduly harsh and unconscionable. When Stenzel entered his no contest plea to two counts of homicide by intoxicated use of a vehicle, a Class B Felony, he faced the possibility of a total sentence of sixty years. See Wis. Stat. § 939.50(3)(b). The sentence of fourteen years, with eight years of initial confinement, is within the statutory limits. "A sentence well within the limits of the maximum sentence is not so disproportionate to the offense committed as to shock the public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances." State v. Daniels, 117 Wis. 2d 9, 22, 343 N.W.2d 411 (Ct. App. 1983). In addition, because there were two victims, making the sentences consecutive does not shock the public sentiment and make the sentences unduly harsh and unconscionable. See State v. Hamm, 146 Wis. 2d 130, 157, 430 N.W.2d 584 (Ct. App. 1988). Finally, considering the age of the victims and the gravity of the offenses, public sentiment supports the sentences imposed.

¶ 23. In State v. Ramuta, 2003 WI App 80, ¶ 25, 261 Wis. 2d 784, 661 N.W.2d 483, review denied, 2004 WI 78, 273 Wis. 2d 57, 681 N.W.2d 524 (2004) (No. 02-1809), we observed;

Although we recognize that trial courts should impose " 'the minimum amount of custody'" consistent with the appropriate sentencing factors, "minimum" does not mean "exiguously minimal," that is, insufficient to accomplish the goals of the criminal justice system — each sentence must navigate the fine line between what is clearly too much time behind bars and what may not be enough. (Citation omitted.)

In this case, we conclude that the circuit court correctly navigated that fine line.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Technically, Stenzel is seeking a modification of a sentence imposed by an erroneous exercise of discretion; resentencing is only available if the initial sentence is vacated because it was illegally imposed. See State v. Carter, 208 Wis. 2d 142, 146-47, 560 N.W.2d 256 (1997).

       The highest annual fatality toll during the Vietnam conflict was 14,594 American military combat-related fatalities in 1968. Cyber Sarges, Vietnam War Casualties — US vs. NVA/VC, http://cybersarges.tripod.com/casualties.html (last visited Aug. 4, 2004).

       The heavy financial toll drunk driving exacts, State v. Nordness, 128 Wis. 2d 15, 33-34, 381 N.W.2d 300 (1986), has been estimated by the National Safety Council to be $1,090,000 for each death and $39,900 for each disabling injury. "The calculable costs of motor-vehicle crashes are wage and productivity losses, medical expenses, administrative expenses, motor vehicle damage, and employer costs." Nat'l Safety Council, Estimating the Costs of Unintentional Injuries 2002, at 1 (2002). In Wisconsin, the economic cost of alcohol-related deaths and injuries in 2002 was in excess of $580,000,000.

       In State v. Thompson, 172 Wis. 2d 257, 265, 493 N.W.2d 729 (Ct. App. 1992), we addressed an argument that the circuit court erred when it did not consider the defendant's positive attributes:
      There is an old adage that to whom much is given, much is expected. See Luke 12:48 (New King James). Here, the trial court recognized that despite Thompson's lack of a prior criminal record, and his education and employment history, Thompson, nevertheless, committed a serious offense that resulted in the death of another human being. The trial court's conclusion that Thompson's conduct was especially egregious when viewed in light of his "laudable background," is not "unreasonable or unjustifiable." (Citation omitted.)

       Wisconsin Stat. Rule 809.23(3) does not prohibit us from citing unpublished opinions from other jurisdictions. Predick v. O'Connor, 2003 WI App 46, ¶ 12 n.7, 260 Wis. 2d 323, 660 N.W.2d 1, review denied, 2003 WI 32, 260 Wis. 2d 753, 661 N.W.2d 101 (Wis. Apr. 22, 2003) (Nos. 02-0503, 02-0504), cert denied, 124 S. Ct. 809 (U.S. Wis. Dec. 1, 2003) (No. 03-429). And the Seventh Circuit's rule on citation of its unpublished opinions only prohibits citation of an "unpublished opinion" as precedent in any federal court in that circuit. 7th Cbr. R. 53(b)(2)(iv). We are citing to the opinion not for its precedential value but for its persuasive value. State ex rel. Gendrich v. Litscher, 2001 WI App 163, ¶ 7 n.6, 246 Wis. 2d 814, 632 N.W.2d 878.