author: DEININGER, J.

text:
    Wisconsin Department of Employment Relations and Board of Regents of the University of Wisconsin System, Petitioners-Respondents, v. Wisconsin State Building Trades Negotiating Committee and its Appropriate Affiliated Building Trades Councils, Respondents-Appellants.

    Court of Appeals

      No. 02-2232.

      Submitted on briefs February 7, 2003.

      Decided July 10, 2003.

    2003 WI App 178
    (Also reported in 669 N.W.2d 499.)

      On behalf of the respondents-appellants, the cause was submitted on the briefs of Matthew R. Robbins of Previant, Goldberg, Uelmen, Gratz, Miller & Bruegge-man, S.C., Milwaukee.
    On behalf of the petitioners-respondents, the cause was submitted on the brief of David C. Rice, assistant attorney general, and James E. Doyle, attorney general.
    Before Dykman, Roggensack and Deininger, JJ.

       Petition to review denied 11-17-03.

   DEININGER, J.

¶ 1. The Wisconsin State Building Trades Negotiating Committee, an AFL-CIO affiliate which represents all "craft employees" employed by the State, appeals a circuit court order that vacated a grievance arbitration award in its favor. The union had grieved what it believed to be a violation of its collective bargaining agreement with the State stemming from a decision by management personnel at the University of Wisconsin — Stout to convert a building trades position (Sheet Metal Worker) to that of Maintenance Mechanic 3-HVAC, a position in a bargaining unit represented by a different union (AFSCME).

¶ 2. Although the arbitrator concluded that the State had "reallocated" the position, which is a non-bargainable personnel action reserved to the State by both statute and the parties' contract, he nonetheless determined that the reallocation "had the effect of undermining" the union in violation of the bargaining agreement. Accordingly, the arbitrator ordered the State to "cease and desist from assigning Sheet Metal Worker duties/work to the Maintenance Mechanic 3-HVAC or other non-bargaining unit position."

¶ 3. The State petitioned the Dane County Circuit Court for an order under Wis. Stat. § 788.10 (2001-02) vacating the arbitration award. The circuit court entered such an order, concluding that because state "statutes and the contract prohibit the State and the Union from bargaining about reallocations . . . the arbitrator exceeded his authority in issuing the award." The union claims the circuit court erred and that we must restore the arbitrator's award because his interpretation of the parties' contract was reasonable, consistent with applicable statutes and entitled to judicial deference. We reject the union's arguments and affirm the order vacating the arbitration award.

BACKGROUND

¶ 4. The principal question presented by this appeal is a legal one: Did the arbitrator exceed his authority in making the challenged award? Although the parties disagree as to some of the inferences that may be drawn from the facts that led them to grievance arbitration, we are satisfied that the facts material to our disposition are not disputed. The following summary is taken largely from the arbitrator's decision.

¶ 5. A fifteen-year employee of the University of Wisconsin — Stout informed his supervisor of his intention to retire. He was classified a Sheet Metal Worker and belonged to a bargaining unit covered by a collective bargaining agreement between the State and the union. The supervisor asked Stout's human resources manager if the impending vacancy could be posted ánd filled as a Maintenance Mechanic 3 position instead of that of Sheet Metal Worker. After determining that "Maintenance Mechanics [at other campuses] were performing the same kind of duties" as the retiring employee, the manager authorized posting the vacancy as one for a Maintenance Mechanic 3-HVAC.

¶ 6. The manager made some minor modifications to the pertinent job description before posting the vacancy under the new designation. The person hired under the new job title became a member of the "Blue Collar and Non-Building Trades" bargaining unit, represented by a different union. The appellant Building Trades union filed a grievance challenging the posting of the position as that of Maintenance Mechanic 3-HVAC. Thereafter, because no employee had sought an "internal or external transfer" to the new position, Stout pursued a "full recruitment." As part of that process, the supervisor and manager developed a new, modified position description. The arbitrator characterized the additional changes made to the position description at this time as "significant," and he noted that the manager had testified the changes were made in part because of requests from the "UW System" and the Department of Employment Relations, whose representatives told the manager they "basically didn’t think it looked right to use what had been [the previous] job description as a sheet metal worker, but now call it a maintenance mechanic 3-HVAC."

¶ 7. The union maintained in its grievance that, despite the reallocation of the position to a different classification, the duties of the position remained essentially unchanged and consisted primarily of "work falling within the sheet metal trade." The union argued that if the State were permitted to do what it did in this case, "it could systematically deplete the building trades bargaining unit by simply drawing up a non-craft position description that includes the duties of a craft." Accordingly, in the union's view, the State violated the following provisions of the collective bargaining agreement:

ARTICLE II
Recognition and Union Security
The Employer recognizes the Union as the exclusive collective bargaining agent for all Craft employees as listed below:
... Sheet Metal Worker
ARTICLE III
Management Rights
F. ... [T]he provisions of this Article shall not be used for the purpose of undermining the Union ....

¶ 8. In response, the State argued that under both statute and contract provisions, the "allocation and reallocation of positions to classifications" are not bar-gainable, and therefore, its actions in this case could neither be grieved nor arbitrated. It also maintained that the duties of the position at issue were more appropriately classified as those of Maintenance Mechanic 3-HVAC, with "only 10%-15%" of the duties being similar to those of a sheet metal worker.

¶ 9. The arbitrator determined that what the State had done was to "reallocate" the position at issue from one classification to another. He also acknowledged that "both the statutes and the contract prohibit the State and Union from bargaining about realloca-tions." The arbitrator concluded, however, that even if the State was free to unilaterally accomplish the reallocation, the action's effect was to "undermin[e]" the union, "emasculating Article II, Recognition and Union Security" by permitting bargaining unit work to be transferred to a non-bargaining unit position, in violation of the parties' collective bargaining agreement. Thus, in the arbitrator's view, even if the reallocation decision itself could not be grieved and arbitrated, "the effect(s) of the reallocation" were indeed arbitrable because those effects resulted in a contract violation.

¶ 10. The arbitrator then turned to the merits of the dispute, which he characterized as "whether the State's decision to reallocate [the] position to a classification in a non-craft bargaining unit and assigning the duties to a non-craft[]-bargaining unit employee was justified." He found from the evidence presented during arbitration that "it is clear there was and is sheet metal work/duties being performed" by the employee holding the position. The arbitrator did not find that the State's defense "that only 10-15% of the work orders involve sheet metal work" was not supported by the evidence before him, but he nonetheless rejected the defense:

If that defense is accepted, the logic would, as the Union argues, potentially lead to elimination of a craft position any time the percentage of work performed involving duties normally associated with the particular craft fell below 50% of the hours of a full-time position. Also, flowing from that logic would be the conclusion that a non-craft worker can perform craft work so long as he/she does not'spend more than 50% of his/her time performing those duties.

¶ 11. Based on the foregoing, the arbitrator concluded "that the State's actions herein have undermined the Union" because "[c]raft bargaining unit work was assigned to a non-bargaining unit employee under the guise/subterfuge of reallocation." Acknowledging that he had no "authority to order the State to undo the reallocation which was an exercise of its statutory authority to reallocate a position to another classification," the arbitrator ordered that "the State must cease and desist assigning duties/work generally understood/accepted as Sheet Metal Worker duties/work to the Maintenance Mechanic 3-HVAC or other non-bargaining unit position."

¶ 12. The State petitioned the Dane County Circuit Court for an order vacating the arbitration award under Wis. Stat. § 788.10 on the grounds that the arbitrator had exceeded his powers, manifestly disregarded the law and perversely misconstrued the parties' contract. The court concluded that "the reallocation in question was not arbitrable and that [the] arbitrator exceeded his power and ignored applicable law in making the award." It entered an order vacating the arbitrator's award and the union appeals.

ANALYSIS

¶ 13. We first note that the State's reallocation of the Sheet Metal Worker position to that of Maintenance Mechanic 3-HVAC does not result in the position becoming unrepresented. Future occupants of the position in question will retain membership in a collective bargaining unit — -just not the unit represented by the Building Trades union. The present dispute is thus not one regarding whether a position should remain within the coverage of public employee collective bargaining laws, such as may occur when the employer asserts that a position should be removed from a bargaining unit because of managerial or "confidential" duties. See Wis. Stat. § 111.81(7)(a). Rather, this appeal involves a "turf battle" over which union will represent an employee who performs certain tasks.

¶ 14. Under the parties' collective bargaining agreement, the union possesses rights apart from those of its members, and the contract acknowledges the union's right to protect its "turf." For example, the parties' contract expressly recognizes the rights of the union "as the exclusive collective bargaining agent for all Craft employees." It also prohibits the State from using its management rights "for the purpose of undermining the Union." The arbitrator was asked to decide whether the State's action in reallocating the position violated these contractual provisions. We must decide in this appeal whether to uphold or vacate the arbitrator's decision concluding that the union's contractual rights were violated and ordering a remedy.

¶ 15. We also note at the outset that we will not address whether the State's action in reallocating the position at issue was proper. The parties agree (as did the arbitrator) that the forum for resolving that issue is the Wisconsin Personnel Commission. See Wis. Stat. § 230.44(l)(b). We were initially concerned as to whether the union could have challenged the reallocation decision before the commission in its own right, absent a challenge by one of its members. The record before us, however, includes a copy of a commission decision that suggests the commission would entertain a complaint lodged solely by a union challenging the reallocation of a position out of one of its bargaining units. Additionally, we note that the union does not dispute the State's assertion that it could have challenged the reallocation before the personnel commission. The union argues only that the commission "does' not have exclusive jurisdiction" to hear claims "concerning the effect of reallocation decisions." (Emphasis added.)

¶ 16. The union did not challenge the reallocation before the personnel commission, however, and we thus have no basis for reviewing whether the position at issue was properly reallocated from Sheet Metal Worker to Maintenance Mechanic 3-HVAC. We therefore do not address the "majority of duties test" or any other standards for determining proper classifications or allocations of positions within the State classified service. Again, what we must decide, and the only thing we must decide, is whether the arbitrator exceeded his authority in ordering the remedy he did to redress the union's loss of the position at issue to another bargaining unit. We turn to this issue.

¶ 17. Under Wis. Stat. § 788.10(l)(d), a court "must" vacate an arbitration award if it concludes that an arbitrator has "exceeded [his or her] powers." On an appeal of an order vacating an arbitration award, our scope of review is the same as the circuit court's, and "[w]e review the arbitrators award without deference to the trial court's decision." City of Madison v. Local 311, Int'l Ass'n of Firefighters, 133 Wis. 2d 186, 190, 394 N.W.2d 766 (Ct. App. 1986). In determining "whether the award of the arbitrator was outside the scope of [the arbitrators] authority and contrary to law," we begin with a presumption that the award is valid, and we will set it aside only if "its invalidity is demonstrated by clear and convincing evidence." Whitewater Educ. Ass'n v. Whitewater Unified Sch. Dist., 113 Wis. 2d 151, 157, 335 N.W2d 408 (Ct. App. 1983).

¶ 18. When deciding disputes which involve only an arbitrator's contract interpretation during grievance arbitration and not the arbitrability of the dispute, courts generally take a deferential, "hands off' approach, in part because "the parties have contracted for binding arbitration of grievances in an existing contract." See La Crosse Prof'l Police Ass'n v. City of La Crosse, 212 Wis. 2d 90, 98, 568 N.W2d 20 (Ct. App. 1997). Specifically:

[T]he court will not overturn the arbitrator's decision for mere errors of law or fact, but only when "perverse misconstruction or positive misconduct [is] plainly established, or if there is a manifest disregard of the law, or if the award itself is illegal or violates strong public policy." These narrow grounds for overturning an arbitrator's award are echoed in the controlling statute on arbitration, [Wis. Stat. §] 788.10 ... and especially in [§] 788.10(l)(d).

City of Madison v. Madison Prof'l Police Officers Ass'n, 144 Wis. 2d 576, 586, 425 N.W2d 8 (1988) (citations omitted). The issue before us is whether the arbitrator's award in this case comes within one of these "narrow grounds for overturning an arbitrator's award." Id.

¶ 19. The issue of an arbitrator's authority to arbitrate a specific dispute often involves a question of law which is appropriately decided by a court de novo, with no deference owed the arbitrator's conclusion regarding his or her own authority. See Glendale Prof'l Policemen's Ass'n v. City of Glendale, 83 Wis. 2d 90, 98-101, 264 N.W2d 594 (1978); cf. City of Madison v. WERC, 2003 WI 52, ¶¶ 9-10, 261 Wis. 2d 423, 662 N.W.2d 318. We conclude that the dispute before us falls in this category, and we decide de novo the question of whether the arbitrator exceeded his authority because his award conflicts with state statutes.

¶ 20. With these principles in mind, we now consider the State's challenge to the validity of the award before us. The State contends that the arbitrator exceeded his authority because position classification and allocation decisions, which it claims go to "maintaining the integrity" of its civil service classification system, are reserved solely to it by statute. Moreover, in the State's view, the effects of classification and allocation decisions, with certain limited exceptions recognized by statute, are not bargainable and thus are not redress-able through grievance arbitration under a collective bargaining agreement. According to the State, the arbitrator's award prohibiting it from assigning certain duties to the reallocated position undermines its exclusive statutory authority, recognized in the parties' contract, to structure its workforce pursuant to the civil service statutes. The State asserts that the personnel commission is the exclusive forum for addressing and redressing improper allocation or classification decisions, and that the arbitrator's decision thus violates both law and public policy. We agree with the State (and the circuit court) that the challenged award suffers from precisely these infirmities.

¶ 21. "The relationship between public sector bargaining agreements and other statutes governing terms and conditions of employment can be one of the most difficult issues in public sector labor law." Glendale Profl Policemen's Ass'n, 83 Wis. 2d at 105; City of Madison, 261 Wis. 2d 423, ¶ 34 (Abrahamson, C.J., dissenting). The principal "other statute" at issue in this case is Wis. Stat. § 111.91(2)(b)2, which provides in relevant part that the State is prohibited from bargaining with its employees regarding:

The job evaluation system specifically including position classification and reclassification, position qualification standards, establishment and abolition of classifications, and allocation and reallocation of positions to classifications; and the determination of an incumbent's status, other than pay status, resulting from position reallocations.

The parties' contract repeats the statutory prohibition, virtually verbatim, in Article III, "Management Rights."

¶ 22. Also implicated in this appeal are statutes which assign to the personnel commission the authority and responsibility to hear disputes regarding the classification and allocation of positions in the state civil service. Under Wis. Stat. § 230.44(l)(b), these personnel actions are "appealable" to the personnel commission, which must conduct a hearing (or, at the employee's option, arbitration) and "either affirm, modify or reject the action which is the subject of the appeal," issuing "an enforceable order" to the responsible official or agency. Section 230.44(4)(c). We agree with the State that the combination of Wis. Stat. §§ 111.91(2)(b)2 and 230.44 evince the legislature's intent to have "expert and uniform review of allocation and reallocation decisions by an agency specifically designated by the legislature to perform such reviews, rather than by ad hoc arbitrators who lack the agency's expertise." When the legislature enacts a comprehensive review mechanism and specific remedies regarding a particular governmental action, the statutory mechanism and remedies are generally exclusive absent a legislative indication to the contrary. See Fazio v. De partment of Employee Trust Funds, 2002 WI App 127, ¶ 11, 255 Wis. 2d 801, 645 N.W.2d 618 ("Generally, where a statute sets forth a procedure for review of an administrative action and for judicial review of the administrative decision, the courts will consider that remedy exclusive . . .

¶ 23. The arbitrator in this case disavowed any intention of supplanting the personnel commission by ordering the position reallocation set aside. We agree with the State, however, that the award effectively does just that. By ordering the State to assign no sheet metal worker duties whatsoever to the reallocated position, the arbitrator has injected himself squarely into the classification/allocation process by decreeing duties which may and may not be performed by specific positions. The award thus strikes at the very heart of the state job classification and allocation system, one of whose purposes is the creation of logical groupings of duties and responsibilities for positions in the state classified service. The award removes necessary flexibility from the system by impairing the State's ability to efficiently structure its work force by responding appropriately to changes in a position's duties and responsibilities.

¶ 24. The union argues, however, that another statute, Wis. Stat. § 111.93(3), allows the effects of a reallocation decision to be grieved and arbitrated under the parties' collective bargaining agreement:

Except as provided in [various statutes, not including Wis. Stat. § 111.91(2)(b)], if a collective bargaining agreement exists between the employer and a labor organization representing employees in a collective bargaining unit, the provisions of that agreement shall supersede the provisions of civil service and other applicable statutes, as well as rules and policies of the board of regents of the University of Wisconsin System, related to wages, fringe benefits, hours, and conditions of employment whether or not the matters contained in those statutes, rules, and policies are set forth in the collective bargaining agreement.

(Emphasis added.) The union contends that the issue in this case is "the removal of work from the bargaining unit," which it claims is a "condition[] of employment" governed by Wis. Stat. § 111.93(3). And, the union further argues that, because it is a condition of employment, the legislature has ordained the issue a mandatory subject of bargaining. See § 111.91(l)(a).

¶ 25. The union points out that under Wis. Stat. § 111.91(2)(b)2, the statute on which the State primarily relies, the legislature has identified as a prohibited bargaining subject not only the "allocation and reallocation" of positions but also "the determination of an incumbent's status, other than pay status, resulting from position reallocations." The union argues that by singling out just one effect of a reallocation— determination of an incumbent's status — as a prohibited bargaining subject, the legislature intends that all other effects flowing from reallocations are bargainable. The union claims additional support for its interpretation in the language of § 111.91(1)(a), which expressly permits "an incumbent's pay status resulting from position reallocation or reclassification" and "pay adjustments upon . .. downward reallocations of a classified employee's position" to be bargained.

¶ 26. In the union's view, the effect on the bargaining unit of losing work, like these other effects of a reallocation, are thus bargainable, grievable, and arbi-trable, even if reallocation decisions themselves are not subject to bargaining or grievance arbitration. It urges us to "harmonize" the cited statutes as the arbitrator did, and as courts are instructed to do when faced with alleged or apparent conflicts between public sector bargaining statutes and other personnel relations statutes. See Glendale Prof'l Policemen's Ass'n, 83 Wis. 2d at 103-04. The union asserts that if we do not restore the arbitrator's award, the recognition clause in its collective bargaining agreement with the State will be rendered a "nullity," and the State will be free to "move all of the work under the labor agreement to positions outside the bargaining unit."

¶ 27. We are not persuaded by the union's arguments. First, we take issue with the union's assertion that "the removal of work from the bargaining unit" is a "condition of employment" within the meaning of the statutes cited, such that the existence of the parties' collective bargaining agreement and the operation of Wis. Stat. § 111.93(3) serve to override the prohibition of Wis. Stat. § 111.91(2)(b). The term "conditions of employment" is not defined in Wis. Stat. ch. Ill, but when used in the chapter, the term is linked with such terms as "wages," "rates of pay,"- "hours," "fringe benefits," "hiring," "promotion," "compensation" and "tenure." See, e.g., Wis. Stat. §§ 111.32(9)(a), 111.375(1), 111.84(l)(c) and (e), and 111.93(2) and (3). The term "conditions of employment" thus generally connotes pay, benefits and other matters which directly affect the interests of employees.

¶ 28. We conclude that matters which affect the separate and distinct interests of bargaining units or unions, such as the interest in not losing work to another unit or union, are not "conditions of employment" under Wis. Stat. § 111.93(3). The legislature has declared the policy of the State Employment Labor Relations Act to be the promotion and protection of three "major interests," and the interests of a union apart from those of its members is not among them. Wis. Stat. § 111.80(1) ("[Tjhere are 3 major interests involved: that of the public, that of the employee and that of the employer."). Thus, although the State is free to contractually recognize the union as the bargaining agent for certain employees, and to agree to not exercise its management rights "for the purpose of undermining the union," we discern no legislative intent to allow the express prohibition of Wis. Stat. § 111.91(2)(b)2 to be overridden by permitting "the loss of bargaining unit work" on account of a position reallocation to be bargained, grieved or arbitrated. Rather, we agree with the State that the legislature's express inclusion in § 111.91(1)(a) of the "determination of an incumbent's pay status resulting from position reallocation" and "pay adjustments upon .. . downward reallocations" as bargainable subjects means that these are the only "effects" of reallocation decisions that the legislature intends to be bargainable, grievable and arbitrable.

¶ 29. In summary, we conclude that the legislature does not intend that arbitrators be permitted to enter orders such as the one before us. An order prohibiting the State from assigning certain work to certain positions undermines the statutory authority of the Secretary of the Department of Employee Relations, or his or her designees, to reclassify and reallocate positions (see footnote 8). The legislature has removed position classification and allocation decisions from the realm of collective bargaining and has designated the personnel commission as the reviewing authority to ensure that the State properly exercises its authority in these matters. Accordingly, the arbitrator exceeded his authority in making the challenged award and the circuit court properly ordered it vacated.

¶ 30. Our conclusion that the arbitrator exceeded his authority in making the present award does not mean that the union is without means to redress violations of its contractual rights to recognition and to be free of purposeful efforts by the State to undermine its interests. As we have discussed, the union, either independently or joined with one or more of its members, may challenge a reallocation before the personnel commission, and the commission, if it deems the action unjustified or improper, has the authority to set it aside. The parties' agreement also recognizes the union's ability to submit disagreements over whether "new unit classifications" should be included or excluded from its bargaining unit to the Wisconsin Employment Relations Commission (WERC) for "final resolution." Finally, Wis. Stat. § 111.84 affords the union the right to seek remedies from the WERC for any "unfair labor practice," including State interference with the "formation or administration" of the union, which would seemingly encompass a claim that the State had reallocated positions "for the purpose of undermining the union." See § 111.84(l)(b).

CONCLUSION

¶ 31. For the reasons discussed above, we affirm the circuit court's order vacating the arbitration award.

By the Court. — Order affirmed.

       " 'Craft employee' means a skilled journeyman craftsman, including the skilled journeyman craftsman's apprentices and helpers, but shall not include employees not in direct line of progression in the craft." Wis. Stat. § 111.81(4).

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

       Wisconsin Stat. § 111.91(2)(b)2 provides that the State is prohibited from bargaining on "[p]olicies, practices and procedures of the civil service merit system relating to ... position classification and reclassification, position qualification standards, establishment and abolition of classifications, and allocation and reallocation of positions to classifications; and the determination of an incumbent's status, other than pay status, resulting from position reallocations." The "Management Rights" Article of the parties' collective bargaining agreement includes a similarly worded prohibition.

       See, e.g., Wis. Stat. § 230.44(4)(bm) ("Upon request of an employee who files an appeal of the decision of the secretary [of the Department of Employee Relations] made under s. 230.09(2)(a) . . . .") (emphasis added).

        See Bricklayers & Allied Craftsmen Union No. 8 v. DHSS, No. 81-367-PC (Pers. Comm., 5/28/82) (concluding that "the union has standing to request the reclassification of its member's position" and to obtain "declaratory, injunctive or other prospective relief but not "individualized damages or back pay"). We do not consider whether a union may object before the personnel commission to a reallocation or reclassification which the affected employee requests or actively supports. Here, the reallocation occurred when the position at issue was vacant.

       Even though the arbitrator was appointed by the Wisconsin Employment Relations Commission (and was a member of its staff), our review is of the arbitrator's award, not an agency decision. Thus, Wis. Stat. § 788.10(1) and not Wis. Stat. § 227.57 applies to this dispute. See Glendale Prof'l Policemen's Ass'n v. City of Glendale, 83 Wis. 2d 90, 100-01, 264 N.W2d 594 (1978). Glendale involved a predecessor statute whose wording was substantially the same as the present § 788.10(l)(d).
      We also note that the State asserts that "the parties did not agree that the arbitrator's initial determination on substantive arbitrability was to be final and binding." The union does not dispute this assertion in its reply brief. See City of Madison v. WERC, 2003 WI 52, ¶ 11, 261 Wis. 2d 423, 662 N.W2d 318 ("Where a party has 'challenged the arbitrability of [a] question and reserved the right to challenge in court an adverse ruling on arbitrability, the court [will] decide the issue of arbitrability de novo.'" (citation omitted)).

       WISCONSIN Stat. § 230.09(2)(a) vests authority for classification and allocation decisions in the Secretary of the Department of Employee Relations. The secretary may, however, delegate this authority to an "appointing authority." See Wis. Stat. § 230.04(lm). The board of regents enjoys such a delegation, and it exercised the delegated authority in this case to reallocate the vacant position to a different classification.

        See, e.g., Wis. Stat. § 230.09(1), (2)(a) and (am) (directing the Secretary of Department of Employee Relations to, among other things, classify and allocate positions such that each classification includes all positions of comparable "authority, responsibility and nature of work required," to include in each classification "as many positions as are reasonable and practicable," and to "reclassify or reallocate positions" as "the needs of the service require").

        See Wis. Stat. § 230.01(1) (stating legislative purpose "to provide state agencies and institutions of higher education with competent personnel who will furnish state services to citizens as fairly, efficiently and effectively as possible"); Wis. Admin. Code § ER 3.01(2)(f) (" 'Reallocation' means the assignment of a position to a different class . .. based upon. .. [among other things a] logical change in the duties and responsibilities of a position."); Wis. Admin. Code § ER 2.04(3):
      Class specifications shall not be construed to limit or modify the power of the appointing authority to assign tasks or direct or control the work or subordinate employe[e]s. The use of specific examples of work in a class specification shall not be held to exclude the assignment of other work not mentioned, nor is it implied that all stated examples of work must be performed by all employe[e]s whose positions are so classified or constitute an exhaustive or exclusive listing of work assignments.

        See also Madison Teachers, Inc., v. WERC, 218 Wis. 2d 75, 88-89, 580 N.W2d 375 (Ct. App. 1998) (noting that the parties in that case had agreed that "conditions of employment" included " 'matters such as the quality and safety of the work environment, the work load for the time allotted, the stressfulness of assignments, and the potential for disciplinary problems with students'"); id. at 88 n.3 (noting other items that have been determined to be "conditions of employment").

       We note that the arbitrator did not find that the State's reallocation of the position was undertaken for "the purpose of undermining the union," only that the reallocation had that "effect." The State's witnesses testified that the reallocation was accomplished, after consultation with other campuses, in order to place the position in a classification more consistent with the overall work actually being performed. The union, to be sure, disputed whether the duties of the position justified the reallocation to the Maintenance Mechanic 3-HVAC classification, but it produced no evidence that the State acted out of ulterior motives. The previous incumbent Sheet Metal Worker had himself earlier sought this very change in classification, which, for reasons that are not altogether clear in the record, did not occur until after his retirement. There is no evidence in the arbitration record, however, of any ill will between the State and the union, of a retaliatory motive for reallocating the position, or of the State having engaged in a systematic effort to spirit positions away from this union to units represented by other unions.


source: Caselaw Access Project

author: ROGGENSACK, J.

license: Public Domain

text:
    In re the Marriage of: Ann Renee Culligan p/k/a Ann Renee Cindric, Petitioner-Respondent, v. Nicolas Cindric, Respondent-Appellant.
    Court of Appeals

      No. 02-2275.

      Submitted on briefs January 10, 2003.

      Decided July 10, 2003.

    2003 WI App 180
    (Also reported in 669 N.W.2d 175.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Kristen E. Lehker of Wessel, Brown and Associates LLC of Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of John P. Schuster of Schuster Law Office of Madison.
    Before Vergeront, PJ., Dykman and Roggensack, JJ.
   ROGGENSACK, J.

¶ 1. Nicolas Cindric appeals an order denying his motion to modify physical placement provisions of a 1999 judgment divorcing him from Ann Culligan. The circuit court concluded Nicolas failed to prove that since the last order there has been a substantial change in circumstances affecting physical placement, as required by Wis. Stat. § 767.325(l)(b) (2001-02).1t based its decision on a December 10, 2001 order. Because we conclude that the circuit court used the wrong court order as the starting point in reviewing Nicolas's motion to change physical placement, we reverse the order. On remand, we direct the circuit court to determine whether there has been a substantial change in circumstances since the entry of the divorce judgment, which is the last order that substantially affected physical placement, as set out in § 767.325(l)(b)l.b, and to determine whether a modification of the children's current physical placement schedule is in their best interest as required by § 767.325(l)(b)l.a. In determining this second factor, it is Nicolas's burden to persuade the circuit court to set aside the statutory presumption that continuing the children's actual physical placement with the parent with whom they are now residing for the greater period of time is in their best interest, as § 767.325(l)(b)2.b requires.

BACKGROUND

¶ 2. Nicolas Cindric and Ann Culligan were married on August 17, 1991. The parties have three minor children: Nicolas, Megan and Ryan. Nicolas and Ann were divorced on May 24, 1999. The judgment of divorce granted joint legal custody of the children and periods of physical placement with each parent as set forth in the marital settlement agreement the court adopted as part of its judgment of divorce. Based on the marital agreement, the court awarded Nicolas physical placement of the children every other weekend from Friday evening through Monday morning and every Wednesday evening to Thursday morning.

¶ 3. The marital settlement agreement also included the following language that purported to effect a prospective change in the physical placement of the children:

Beginning the first week that the parties' youngest child, Ryan Cindric, enters kindergarten, Nicolas Cin-dric shall have the following periods of physical placement with the children:
Week One: Wednesday night to Thursday morning, and Friday evening through to Monday morning.
Week Two: Wednesday evening to Friday morning.
However, the spring prior to Ryan entering kindergarten, the parties shall enter mediation with Andrew Paulson, Ph.D. to discuss placement options when Ryan enters school to determine if the above schedule will best meet their children's developmental needs.

¶ 4. Ryan Cindric entered kindergarten on August 20, 2001, and on August 22, the parties implemented the contemplated adjustment in placement. In November 2001, Nicolas moved to modify his child support obligation due to the increase in his periods of physical placement with the children. On December 10, the Family Court Commissioner entered a stipulated order amending the judgment of divorce. The order recognized that "since August 22, 2001, Nicolas has [had] placement of the minor children forty-three percent (43%) of the time, and is a shared placement payer." The order modified his child support obligation accordingly.

¶ 5. On May 20, 2002, Nicolas moved to modify the judgment of divorce to further increase his placement periods with the children. If granted, his motion would have increased his periods of physical placement beyond both what was initially ordered in 1999 and the modification made by the parties in August 2001. Wisconsin Stat. § 767.325(1)(b) provides that after two years, a court may change physical placement if the modification is in the child's best interest and there has been a substantial change of circumstances since the entry of the last order that substantially affected physical placement. Nicolas argued that the last order affecting placement was the 1999 divorce judgment. Accordingly, his motion alleged that the requested modification was in the children's best interest and that there had been a substantial change in circumstances since entry of the divorce judgment. The changed circumstances included:. (1) the youngest child had reached school age and all three children now attended school full-time; (2) Nicolas moved into the children's school district; (3) Nicolas accepted a new position that required very little travel; and (4) Ann had begun to limit and interfere with his contact with the children.

¶ 6. Ann opposed Nicolas's motion to modify placement. She argued that the last order affecting placement was entered by stipulation on December 10, 2001 and that Nicolas's affidavit in support of his motion to modify placement alleged insufficient facts to show a substantial change in circumstances since entry of the December 10 order. In short, she argued that Nicolas's motion raised the same changed circumstances that were alleged in support of the December 10 order that reduced his child support payments. The circuit court agreed and denied Nicolas's motion. The court concluded that Nicolas failed to establish that the modification was in the best interest of the children or that there had been a substantial change in circumstances since entry of the last order affecting physical placement, which it concluded was the December 10 order. Nicolas appeals.

DISCUSSION

Standard of Review.

¶ 7. Physical placement determinations are committed to the sound discretion of the circuit court. Larson v. Larson, 30 Wis. 2d 291, 303, 140 N.W.2d 230, 237 (1966). They will be sustained on appeal when the court exercises its discretion on the basis of the law and the facts of record and employs a logical rationale in arriving at its decision. Licary v. Licary, 168 Wis. 2d 686, 692, 484 N.W2d 371, 374 (Ct. App. 1992). A court erroneously exercises its discretion, however, when it bases its decision on an error of law. Id.

¶ 8. The resolution of this appeal requires interpretation of Wis. Stat. § 767.325. The construction of a statute and its application to undisputed facts present questions of law that we review without deference to the circuit court. Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315, 317 (Ct. App. 1997).

Wisconsin Stat. § 767.325.

¶ 9. Wisconsin Stat. § 767.325 governs modification of legal custody and physical placement orders. Nicolas's May 2002 motion to modify placement was grounded on the post-two-year provisions in subsec. (1) that provide in relevant part:

(b) After 2-year period. 1. Except as provided under par. (a) and sub. (2), upon petition, motion or order to show cause by a party, a court may modify an order of legal custody or an order of physical placement where the modification would substantially alter the time a parent may spend with his or her child if the court finds all of the following:
a. The modification is in the best interest of the child.
b. There has been a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.
2. With respect to subd. 1., there is a rebuttable presumption that:
b. Continuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child.

Nicolas argues that the "last order substantially affecting physical placement" for purposes of § 767.325 is the 1999 judgment of divorce that awarded him periods of physical placement pursuant to the marital settlement agreement. Accordingly, Nicolas contends that the circuit court erroneously exercised its discretion when it denied modification on the grounds that no substantial changes in circumstances had occurred since December 2001, when the court entered the order modifying his financial child support obligation. The issue, therefore, is whether an order that modifies the financial payment for child support is an order "substantially affecting physical placement" as contemplated by § 767.325(l)(b).

¶ 10. The purpose of statutory interpretation is to ascertain and give effect to the legislature's intent. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W2d 506, 509 (1997). We first look to the language of the statute itself. Id. If the meaning of the statute is clear on its face, we apply it as written. Id. This court's primary purpose in reviewing a statute is to achieve a reasonable construction that will effectuate the legislature's purpose. Barnett v. LIRC, 131 Wis. 2d 416, 420, 388 N.W.2d 652, 654 (Ct. App. 1986).

¶ 11. Nicolas starts with the statutory language "substantially affects" and argues that the verb "affect" unambiguously means to "have an effect on" or "make a difference." Therefore, Nicolas argues that the December 2001 child support modification order did not "substantially affect" placement because it did not "have an effect on" placement. The August 2001 placement change was the product of the parties' 1999 divorce judgment that purported to effect a prospective change in the physical placement of the children. The December 2001 order merely acknowledged that a placement change had occurred, it "did not itself create any change in placement."

¶ 12. In contrast, Ann argues that the December 2001 order affected physical placement because the order modified the initial placement schedule set forth in the 1999 divorce judgment. In other words, Ann contends that the parties informally modified the original placement order in August 2001 to include an additional night. She cites Koeller v. Koeller, 195 Wis. 2d 660, 536 N.W.2d 216 (Ct. App. 1995), for the proposition that a prospective custody judgment is void per se and therefore the 1999 judgment did not effectuate the August 2001 change in placement. Accordingly, Ann contends that the December 2001 order stating, "Whereas, since August 22, 2001, Nicolas has placement of the minor children forty-three percent (43%) of the time," modified the initial 1999 judgment by adopting the parties' informal agreement.

¶ 13. We agree with Ann that the portion of the divorce judgment effecting a prospective change in physical placement, contingent on an assessment of the children's needs, is invalid. Koeller, 195 Wis. 2d at 662, 536 N.W.2d at 217. It is well settled that a circuit court lacks the statutory authority at divorce to order a change of physical placement that is both prospective and contingent on the occurrence of some anticipated event. Id. at 667, 536 N.W.2d at 219; Jocius v. Jocius, 218 Wis. 2d 103, 118, 580 N.W2d 708, 715 (Ct. App. 1998). Therefore, a court may not order a change in placement at some future time contingent on an assessment by the parties and, in this case, by Dr. Andrew Paulson, of the children's best interests. As we said, custody and placement determinations must "embody a sense of contemporaneity. . . whether in original or modification proceedings." Koeller, 195 Wis. 2d at 666, 536 N.W.2d at 219. However, Koeller does not circumscribe the parties' right to informally agree to change their children's physical placement schedule. It is Ann and Nicolas's prerogative to agree to modify physical placement; however, their agreement does not "affect physical placement" for purposes of Wis. Stat. § 767.325. In other words, an informal agreement is just that; it does not mandate a placement schedule that could be enforced in the courts.

¶ 14. We are similarly persuaded that the December 2001 order modifying child support did not substantially affect physical placement. Wisconsin Stat. ch. 767 does not define the term "affect" and there is no Wisconsin case that has addressed the precise scope of the statutory term for the purpose of physical placement. We agree, with Nicolas that in the absence of a statutory definition, the general rule is to construe the plain language of the statute according to common and approved usage of the words chosen by the legislature. Wis. Stat. § 990.01(1); see also State v. Gilbert, 115 Wis. 2d 371, 377-78, 340 N.W.2d 511, 515 (1983). Common meaning of words may be established by using a dictionary. Gilbert, 115 Wis. 2d at 378, 340 N.W.2d at 515. We conclude that the most common and appropriate usage of the term "affect" is "to act upon" or "to produce an effect upon." See Webster's Third New International Dictionary 35 (1993). Accordingly, an order that "affects" placement is one that produces an effect on the periods of physical placement awarded the parties, which effect a court may enforce at a later date. See e.g., Wis. Stat. § 767.242. In practical terms, a revision of a placement order produces an effect on physical placement by requiring a different placement allocation.

¶ 15. Applying this construction to the December 2001 order, we conclude that the order did not "affect physical placement" under Wis. Stat. § 767.325 because it did not require a different placement allocation. As Nicolas argued, the court merely acknowledged as a precursor to its child support order that the parties had altered the children's periods of placement such that "Nicolas has placement. . . forty-three percent (43%) of the time." The court did not order a revision in physical placement such that Ann or Nicolas could later ask a court to enforce the revised placement order. Instead, the court ordered only that the judgment of divorce "shall be amended" to reduce Nicolas's child support obligation.

¶ 16. Because the court's analysis regarding Nicolas's request to modify placement was anchored to the December 2001 order, we remand the case for a determination whether there has been a substantial change in circumstances since the 1999 divorce judgment such that modification of physical placement is in the children's best interest. If the court determines a modification from the initial placement allocation implemented at the time of divorce is appropriate, it shall consider the statutory directive in deciding what modification to make.

Remand.

¶ 17. The decision we adopt today directs the circuit court to use the 1999 divorce judgment as its marker when addressing whether there has been a substantial change in circumstances since the entry of the last order affecting physical placement. See Wxs. Stat. § 767.325. However, we note that our holding may not necessarily result in a different resolution of Nicolas's motion for modification of the actual physical placement schedule the parties are currently employing. This is so because the standard to be applied under § 767.325(l)(b)2.b creates a rebuttable presumption that "[cjontinuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child." This statutory directive requires the court to evaluate the actual circumstances of the periods of physical placement. Therefore, the court must consider a contemporaneous element regarding where the children actually reside. In this case, the actual schedule for physical placement is different from that set out in the 1999 judgment because of the parties informal modification in August 2001. Therefore, on remand, the court may determine that there has been a substantial change in circumstances since the judgment of divorce, and also determine that Nicolas failed to overcome the presumption that continuing the children's present placement schedule is in their best interest. See § 767.325(l)(b)2.b. The final decision, therefore, continues to rest within the sound discretion of the circuit court.

CONCLUSION

¶ 18. Because we conclude that circuit court used the wrong court order as the starting point in reviewing Nicolas's motion to change physical placement, we reverse the order. On remand, we direct the circuit court to determine whether there has been a substantial change in circumstances since the entry of the divorce judgment, which is the last order that substantially affected physical placement, as set out in Wis. Stat. § 767.325(l)(b)l.b, and to determine whether a modification of the children's current physical placement schedule is in their best interest as required by § 767.325(l)(b)l.a. In determining this second factor, it is Nicolas's burden to persuade the circuit court to set aside the statutory presumption that continuing the children's actual physical placement with the parent with whom they are now residing for the greater period of time is in their best interest, as § 767.325(l)(b)2.b requires.

By the Court. — Order reversed and cause remanded.

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

       As an alternative argument, Ann contends that even if the December 2001 order did not affect physical placement, Nicolas is estopped from alleging the same changes in circumstance in his May 2002 motion to modify placement that the parties used to set the original placement schedule. Although Ann's argument is difficult to parse, we understand her to argue that Nicolas is estoppéd from alleging the same changes in circumstance, i.e., "the youngest child had attained school age, all three children were in attendance at school full time," that were "the basis for the altered placement schedule in existence at this time." We do not address the merits of this argument for several reasons. First, Ann does not cite any legal authority to support her claim that the doctrine of estoppel applies to custody or placement matters. Second, contrary to her assertion, Nicolas is not relying on the same circumstances that led the parties to agree to a prospective placement modification as set out in the marital settlement agreement. He cites additional changes in circumstances since the 1999 divorce judgment, including his move into the children's school district and acceptance of a new job. And third, revisions of legal custody and physical placement orders are statutory.


author: ANDERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Thomas M. Stockland, Defendant-Appellant.
    Court of Appeals

      No. 02-2129-CR.

      Submitted on briefs May 8, 2003.—

      Decided July 16, 2003.

    2003 WI App 177
    (Also reported in 668 N.W.2d 810.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Ralph A. Kalal of Kalal & Associates, Monona.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christopher G. Wren, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Nettesheim, PJ., Brown and Anderson, JJ.
   ANDERSON, J.

¶ 1. Thomas M. Stockland appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI), fifth offense, contrary to Wis. Stat. §§ 346.63(l)(a) and 346.65(2)(e) (2001-02). Stockland collaterally attacks his second offense OWI conviction, arguing that it was obtained without a constitutionally valid waiver of the right to counsel and that it therefore should not be constitutionally counted in terms of penalty enhancement. We do not reach the merits in this case because Stockland has failed to make a prima facie showing that he was denied his right to counsel. We therefore affirm.

Facts

¶ 2. Stockland entered a no contest plea to a charge of OWI, with a minor passenger under the age of sixteen years, stipulating that he did, in fact, have four prior convictions counted as penalty enhancers under Wis. Stat. 343.307. However, Stockland contended that one of these prior convictions, a second offense OWI conviction occurring on January 30, 1995, could not properly be counted constitutionally because the conviction was obtained in violation of his Sixth Amendment right to counsel.

¶ 3. At a hearing on March 29, 2002, Stockland submitted to the court an eight-page transcript from his 1995 plea hearing, which is the basis for the challenged conviction. Stockland did not submit any other transcripts from this plea date. Stockland argued that the transcript proved that the court conducted an inadequate plea colloquy resulting in a violation of his right to counsel and, therefore, his second offense OWI conviction should not be counted against him for sentencing purposes. The relevant portion of the submitted transcript reads:

THE CLERK: 94-CT-235, State of Wisconsin versus Thomas M. Stockland.
MS. KRAUSE: The State appears by Assistant D.A. Heather Krause. The defendant appears in person without an attorney. Your Honor, I had a pre-trial conference with the defendant, and we have reached a plea agreement, as follows: With a guilty plea to the charge of OWI second, the State will move to merge and dismiss the charge of operating with a prohibited alcohol concentration. The defendant had a BAC of .13 at the time of the incident. The State is recommending the minimum penalties, which would be a fine of $300, plus court costs, for a total of $696; five days in the county jail; and revocation of his drivers license for 12 months.
THE COURT: Okay. You are Thomas Stockland; is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: Mr. Stockland, you have heard the statements of the Assistant District Attorney; is that correct?
THE DEFENDANT: Yes.
THE COURT: All right. Is that, in fact, the agreement that you have reached?
THE DEFENDANT: Yes.
THE COURT: And you are here without an attorney today. Is it your intent to proceed without a lawyer?
THE DEFENDANT: Yes.
THE COURT: What plea do you want to enter to the charge of drunken driving as a second offense within a five-year period?
THE DEFENDANT: "Guilty."
MS. KRAUSE: Your Honor, I just inquired of the defendant whether he filled out a guilty plea questionnaire. He indicated that he did not have a chance to do that.
THE DEFENDANT: Okay. Sorry about that.
THE COURT: Okay. You have been in court all afternoon, Mr. Stockland?
THE DEFENDANT: Yes.
THE COURT: You have heard me ask people about their rights, and their understanding of their rights, and their waiver of their rights, all afternoon, have you not?
THE DEFENDANT: Yes.
THE COURT: Would you like me to repeat them for you at all?
THE DEFENDANT: No, that's all right. I understand.
THE COURT: Okay. And no one made any threats or promises to you, to encourage you to give up your rights, have they?
THE DEFENDANT: No.
THE COURT: Do you understand that at a jury trial, the State would have to prove your guilt beyond a reasonable doubt, before you could be found guilty?
THE DEFENDANT: Yes.
THE COURT: ■ How far have you gone in school, Mr. Stockland?
THE DEFENDANT: Eleventh grade.
THE COURT: And have you consumed any alcohol or any other intoxicants in the last 24 hours?
THE DEFENDANT: No.
THE COURT: Okay. So, nobody had a Super Bowl party last night that you were attending then apparently?
THE DEFENDANT: I was sleeping.
THE COURT: Okay. If you wanted a lawyer, could you afford to hire one?
THE DEFENDANT: No.
THE COURT: Do you understand your right to have a Public Defender representation?
THE DEFENDANT: Yes.
THE COURT: Do you wish to waive that right also?
THE DEFENDANT: Sure.
THE COURT: Okay. I am satisfied that Mr. Stock-land has freely, voluntarily, and intelligently waived his right to a trial, and a trial by jury. Likewise, he has entered his plea of "guilty" to the charge. Are the facts as reported here in the criminal complaint, Ms. Krause?
MS. KRAUSE: That's correct, your Honor. Also, your Honor, the defendant was arrested for OWI the first time on October ninth of 1993, and was sentenced and convicted of that on October 19th of 1993, making this a second violation within five years.
THE COURT: Okay. On the facts recited in the complaint, the Court will find the defendant guilty, and finds that it is a second such conviction within a five-year period. Is there anything further from the State by way of a sentencing recommendation, Ms. Krause?
MS. KRAUSE: No, nothing further, your Honor.
THE COURT: Mr. Stockland, is there anything that you wish to tell the Court?
THE DEFENDANT: No.

¶ 4. As he does on appeal, Stockland argued to the circuit court that the above colloquy was deficient because it did not touch on whether he made a deliberate choice to proceed without counsel and it did not touch on whether he was aware of the disadvantages of self-representation.

¶ 5. The court pointed out to Stockland's attorney that this colloquy reveals that Stockland acknowledged that he was in court during the other proceedings that day when other defendants were advised of those rights and that he acknowledged hearing the other defendants being advised of those rights. The court then opined to Stockland's attorney:

For whatever reason ... you have elected not to request the court reporter to transcribe the transcripts of all of the other proceedings that Mr. Stockland listened to that afternoon, while he was in court. You have not presented any testimony from Mr. Stockland as to what he knew or didn't know.

¶ 6. Stockland's attorney admitted that he did not request the other transcripts but argued that "any statements that the Court might have made prior to Mr. Stockland's case being called, I don't think, quite candidly, any of that is relevant to the issue."

¶ 7. The State disagreed and argued that the partial transcript

itself supports a finding that the waiver [of Stockland's right to counsel] was deliberate. Mr. Stockland was asked on two separate occasions whether or not he wanted... a public defender to be appointed on his behalf, because he didn't think he could afford an attorney, and he made that statement twice.
And I do believe that the colloquy about the other cases that Mr. Stockland had watched earlier that evening, or on that day, does strike on whether or not the Court questioned him about his understanding of the difficulties of self-representation. And based on the fact that he was made aware of the penalties, and of the State's recommendation, that he waived his right to an attorney, and waived his right to a public defender.
He stated that he was working at that time . . . and, presumably, he would have had some resources to hire an attorney. The fact that he sat through a number of different hearings, and had a discussion with the Court concerning,his understanding of what had happened in the other hearings, concerning alcohol-type offenses, and the fact that he received the sentence for which he had bargained, supports that fact that there was a knowing and intelligent waiver of his right to counsel.
If the Court is going to make a finding that [the defense] has met the initial burden, the State would he more than happy to pursue the other cases that were on the calendar on that date, and the particular discussions that were had on the record.

¶ 8. After this, the court determined that because a transcript of the other hearings had not been ordered, "we will have to set this hearing aside for a greater and more fully explored evidentiary hearing."

¶ 9. Two months later, on May 23, 2002, the subsequent hearing occurred. Stockland did not present any further evidence and simply restated his reliance on the previously submitted transcript to prove his prima facie case. The State responded by reiterating its argument as to why Stockland's request should be denied. The court then rendered its decision on the issue:

[D]o you know what you failed to do [defense attorney]? I'm going to make some findings here. The Court finds that defense counsel has failed to provide a transcript of all of the court proceedings that were held earlier that afternoon when Mr. Stockland appeared, which he indicated he had listened to all afternoon, and that he understood his rights.
By failing to provide these transcripts, the Court infers that they were not favorable to the position argued by the defendant, since the defense has the burden of going forward here. So, the Court is satisfied that somewhere in the earlier proceedings, that Mr. Stockland was advised of his rights, to which he made these acknowledgments that he understood his rights.
Certainly, every time someone appears in traffic court, or at an initial appearance, the Court reads the statement of rights to all of those who appear, advising them of their right to be represented by counsel, and also advising them of their right to have counsel appointed, if they cannot afford counsel. Also in criminal traffic court cases, the Court does that. The Court does that for everyone when they appear, and the Court assumes that it did it for him.
The reason you didn't provide those transcripts, since it seems to be a candor issue here, I assume that you would have those transcripts here .. . unless they wouldn't be helpful to you ....
[D]efense counsel failed to get transcripts of all of the other hearings where Mr. Stockland was present when he was in court that afternoon. Mr. Stockland told the Court, and made a representation to the Court, and the Court assumes Mr. Stockland was an honest person.
He said that he understood all of his rights, that he heard them, and that he didn't want them repeated. The Court offered to repeat them, and go over them with him. He declined.
[A]dditionally, Mr. Stockland received a copy of the criminal complaint in his prior case, and he certainly knew what the maximum penalties were, because he told us in this case that he can read and write the English language....
So, taking a look at all of these things then, the Court would point out that the defendant made a plea bargain with the District Attorney's office for the minimum mandatory penalties. That is exactly what he got. He got what he bargained for. He got the minimum penalties.
So, the motion is denied. The Court finds this is a fifth offense, and he is going to be sentenced on that.

¶ 10. Stockland was sentenced to five years probation with the condition that he spend one year in the county jail with work release privileges. Stockland appeals.

Law and Discussion

¶ 11. In State v. Hahn, 2000 WI 118, 28-29, 238 Wis. 2d 889, 618 N.W2d 528, the Wisconsin Supreme Court, citing to Custis v. United States, 511 U.S. 485 (1994), held that a defendant generally may not collaterally attack a prior conviction in a subsequent criminal case where the prior conviction enhances the subsequent sentence.

¶ 12. However, the Hahn court also noted the exception to the rule against collateral attacks: a collateral attack based upon an alleged violation of the defendant's right to counsel. Hahn, 238 Wis. 2d 889, 28-29. Stockland collaterally attacks his prior conviction under the right-to-counsel exception.

¶ 13. When "collaterally attacking" a prior conviction under this exception, the defendant has the initial burden of coming forward with evidence to make a prima facie showing of a deprivation of his or her constitutional right at the prior proceeding. State v. Baker, 169 Wis. 2d 49, 77, 485 N.W2d 237 (1992). If the defendant makes a prima facie showing, "the state must overcome the presumption against waiver of counsel and prove that the defendant knowingly, voluntarily, and intelligently waived the right to counsel in the prior proceeding." Id. Whether a party has met its burden of establishing a prima facie case is a question of law that we decide de novo. State v. Hansen, 168 Wis. 2d 749, 755, 485 N.W.2d 74 (Ct. App. 1992). Nonetheless, we value the opinion of the circuit court, particularly where, as here, the court has provided a thorough and well-reasoned decision. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 475-76, 507 N.W.2d 163 (Ct. App. 1993).

¶ 14; The validity of Stockland's waiver of counsel must be examined under the law prevailing at the time which was explained by the supreme court in Pickens v. State, 96 Wis. 2d 549, 563-64, 292 N.W.2d 601 (1980), overruled by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997):

[I]n order for an accused's waiver of his right to counsel to be valid, the record must reflect not only his deliberate choice to proceed without counsel, but also his awareness of the difficulties and disadvantages of self-representation, the seriousness of the charge or charges he is facing and the general range of possible penalties that may be imposed if he is found guilty. Unless the record reveals the defendant's deliberate choice and his awareness of these facts, a knowing and voluntary waiver [of counsel] will not be found.

¶ 15. In addition to the law of Pickens, our review will keep in mind the reality that in high volume traffic and misdemeanor courts it is common practice to give the recitation of constitutional rights at the start of proceedings and then incorporate that recitation by reference as each individual defendant's case is called. We approve of the circuit courts' employment of this efficiency measure.

¶ 16. Given the law under Pickens, our approval of the efficiency measure practiced in high volume traffic and misdemeanor courts and our examination of the record, we hold that Stockland failed to meet his prima facie burden because he has failed to provide, as he failed at the circuit court level to provide, all of the relevant transcript information on the issue. Stockland provided what amounts to a partial transcript because the transcript he provided picks up at the point his individual case was called. That partial transcript reveals that there is, in fact, other potentially available, relevant and important information as to whéther Stockland was properly advised of the advantages and disadvantages of pro se representation under Pickens.

¶ 17. The partial transcript indicates that the circuit court delivered Stockland his rights "en masse" (i.e., explained to all the defendants assembled in the courtroom that day their rights), and included the drawbacks of waiving those rights. It further indicates that Stockland verbally acknowledged a receipt and understanding of those rights and, in the face of this understanding, it indicates that he chose to proceed without a lawyer.

¶ 18. Our approval of a circuit court's en masse delivery of rights is based not only on the need to promote the policy of efficiency but also on our determination that it is in compliance with the requirements of State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). Here, we are guided by our decision in State v. Moederndorfer, 141 Wis. 2d 823, 416 N.W2d 627 (Ct. App. 1987).

¶ 19. In Moederndorfer, the defendant was charged with, inter alia, aiding and abetting a burglary. Id. at 825. Pursuant to a plea bargain, he agreed to plead guilty to this charge; the State agreed to remain silent at sentencing. Id. Within fifteen minutes prior to the change of plea hearing, Moederndorfer completed a three-page document entitled "waiver of rights." Id. The court proceeding then took place, the plea bargain was placed on the record, the defendant pled guilty, and he was later sentenced. Id. at 825-26. Moederndorfer subsequently moved to withdraw his plea. Id. at 826. The circuit court ruled that while a prima facie case had been made by the defendant that he did not understand the constitutional rights he was waiving by pleading guilty, the State had met its burden of proving a knowing and voluntary waiver. Id. The circuit court also ruled that the defendant understood the nature of the charge against him and admitted the elements of the charge. Id. Further, the circuit court ruled that the prosecution did not breach the plea bargain agreement. Id.

¶ 20. The relevant issue in Moederndorfer, for our purposes, was whether the defendant understood he was giving up certain constitutional rights by pleading guilty. See id. In particular, the defendant faulted the circuit court's use of a waiver of rights form in lieu of a personal colloquy between the judge and the defendant. Id. After noting that Moederndorfer relied on Bangert, 131 Wis. 2d at 270, for the proposition that defense counsel may not speak for the defendant and that the defendant must be personally addressed to determine his or her understanding of the rights waived by a guilty plea, wé held the following:

Our reading of Bangert, however, is that the supreme court does not require the trial court to personally address the defendant regarding waiver of constitutional rights.

Moederndorfer, 141 Wis. 2d at 826. We emphasized the supreme court's language in Bangert, which sanctions a circuit court's colloquy if the colloquy demonstrates that the circuit court did

specifically refer to some portion of the record or communication between defense counsel and defendant which affirmatively exhibits defendant's knowledge of the constitutional rights he will he waiving. The court must then . . . ascertain whether the defendant understands he will be waiving certain constitutional rights by virtue of his guilty or no contest plea. Id., 131 Wis. 2d at 270-72, 389 N.W2d at 24-25 (footnote and emphasis omitted).

Moederndorfer, 141 Wis. 2d at 827. We then stated:

Personal colloquy by verbally following the provisions of SM-32 is not mandatory. The trial court may instead refer to some portion of the record or some communication between defense counsel and defendant. Any one of these alternatives is proper so long as the alternative used exhibits defendant's knowledge of the constitutional rights waived.

Id. (emphasis added). Finally, we went on to approve the use of a written plea questionnaire as a means of fulfilling the mandatory plea colloquy. Id. at 827-28. Specifically, we approved of the process where

[a] trial court.. . accurately assess [es] a defendant's understanding... by making a record ....
The trial court made that kind of record in this case. The trial court personally questioned the defendant concerning the form. It asked the defendant if he had signed the form, if his attorney had assisted him in understanding the rights being waived and if he understood each of the paragraphs he had initialed. The defendant replied affirmatively to each question.

Id. at 828 (footnote omitted).

¶ 21. The transcript Stockland submitted shows that like Moederndorfer, Stockland was asked if he understood his rights as they were presented to him— Moederndorfer's rights were presented via plea questionnaire and Stockland's were presented via en masse oral delivery. Like Moederndorfer, Stockland replied affirmatively to each of the circuit court's questions.

¶ 22. Today, we take the logical step of adapting the Moederndorfer language to situations such as Stockland's where the court delivers rights to the defendant en masse. This reasoning flows from what we explicitly approved in Moederndorfer: Those colloquys that "specifically refer to some portion of the record or communication between defense counsel and defendant which affirmatively exhibits defendant's knowledge of the constitutional rights he will be waiving." Id. at 827 (emphasis and citation omitted).

¶ 23. Here, the court specifically referred to some portion of the record it had made that day when it referenced its earlier en masse delivery of rights. Thus, just as the circuit court accurately assessed the defendant's understanding of the rights he would be waiving in Moederndorfer, the record implies that the circuit court accurately assessed Stockland's understanding of the rights he would be waiving.

¶ 24. There is compliance with Bangert as long as there is a record that the defendant was present when rights were given en masse and was personally questioned by the court to establish that he or she understood the rights, had no questions about the rights and waived the rights. Here, the court complied with Bangert when it made a record of Stockland's presence during the earlier en masse delivery of rights that same day and made a record of Stockland's verbal acknowl-edgement that he understood the rights he was waiving and he did not need any of these rights repeated.

¶ 25. However, we do not reach the ultimate question on the merits: whether, in its delivery of rights en masse, the circuit court failed to properly instruct Stockland on his right to counsel and the consequences of waiving this right. We cannot reach the merits because Stockland did not submit to the circuit court, nor did he submit on appeal, the relevant transcripts from the other proceedings held on January 30, 1995.

¶ 26. We agree with the circuit court that to make a prima facie case, Stockland needed to present all of the relevant transcripts from the January 30,1995 plea date, beginning with the first transcript that dealt with delivery of rights through the transcript of his appearance. Stockland has failed to make a prima facie showing that he was denied his right to counsel because he has not presented enough of the record to establish that the circuit court ignored mandatory procedures while delivering rights en masse. Furthermore, the circuit court's en masse delivery and subsequent personal colloquy with Stockland are typical of how rights are delivered in high volume traffic and misdemeanor courts. We approve of this practice because it allows such courts to function efficiently while still ensuring that defendants are informed of their rights.

By the Court — Judgment affirmed.

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

       "Collateral attack" is an attempt to avoid, evade or deny the force and effect of a judgment in an indirect manner and not in a direct proceeding prescribed by law and instituted for the purpose of vacating, reviewing or annulling it. Zrimsek v. Am. Auto. Ins. Co., 8 Wis. 2d 1, 3, 98 N.W2d 383 (1959). The general rule is stated as follows:
      A judgment rendered by a court having jurisdiction of the parties and the subject matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect of its validity, verity, or binding effect, by parties or privies, in any collateral action or proceeding, except... for fraud in its procurement.

        Id. (citation omitted).

       We briefly note that the parties also dispute the second basis for the circuit court's ruling — -judicial estoppel. The court pointed out that after Stockland's second conviction, he was convicted of third offense OWI and fourth offense OWI. The court noted that although Stockland was subject to the minimum mandatory penalties for those offenses, he did not challenge the validity of his second offense conviction in either of those proceedings. The court then found that Stockland is estopped from raising this challenge now because he acknowledged that his second conviction was valid in the third and fourth offense proceedings.
      We do not address the estoppel issue because we can dispose of the case on other grounds. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W2d 559 (Ct. App. 1983). However, we note that the supreme court in State v. Peters, 2001 WI 74, ¶ 4, 244 Wis. 2d 470, 628 N.W.2d 797, did not appear to be concerned by the issue of estoppel when it allowed the defendant, in the context of his prosecution for fifth offense OWI, to collaterally challenge his second OWI conviction because the no contest plea upon which it was based was entered without counsel.

        State v. Bangert, 131 Wis. 2d 246, 260-61, 389 N.W2d 12 (1986), requires in pertinent part:
      The Constitution sets forth the standard that a guilty or no contest plea must be affirmatively shown to be knowing, voluntary, and intelligent....
      We do not discard the mandatory requirement that trial judges undertake a personal colloquy with the defendant to ascertain his understanding of the nature of the charge, however. We merely determine that such communication is a statutory requirement, pursuant to sec. 971.08(1), Stats. That subsection reads:
      "971.08 Pleas of guilty and no contest; withdrawal thereof. (1) Before the court accepts a plea of guilty or no contest, it shall:
      "(a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted; and
      "(b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged."
      We note that sec. 971.08 is modeled after the former Fed. R. Crim. Proc. 11. See, Comment to 1969 Wis. Laws 255. McCarthy [v. United States, 394 U.S. 459 (1969)] discussed Rule 11 as it existed at the time sec. 971.08 was enacted. The Supreme Court stated that Rule 11 "expressly directs the district judge to inquire whether a defendant... understands the nature of the charge against him and whether he is aware of the consequences of his plea." McCarthy, 394 U.S. at 464. Although sec. 971.08 is not a constitutional imperative, the procedure of the statute nevertheless is designed to assist the trial court in making the constitutionally required determination that a defendant's plea is voluntary. Cfi, id. at 465.
      Nor do we discard the general duties of the trial court prior to accepting a plea of guilty or no contest. Those duties are:
      (1) To determine the extent of the defendant's education and general comprehension;

        (2) To establish the accused's understanding of the nature of the crime with which he is charged and the range of punishments which it carries;
      (3) To ascertain whether any promises or threats have been made to him in connection with his appearance, his refusal of counsel, and his proposed plea of guilty;
      (4) To alert the accused to the possibility that a lawyer may discover defenses or mitigating circumstances which would not be apparent to a layman such as the accused;
      (5) To make sure that the defendant understands that if a pauper, counsel will be provided at no expense to him ... and
      (6)To personally ascertain whether a factual basis exists to support the plea. (Citations and footnotes omitted.)