text:
    Lawrence Rayner and Sally Rayner, Plaintiffs-Respondents, v. Reeves Custom Builders, Inc., Arthur J. Reeves and Beth E. Reeves, Defendants-Appellants.
    Court of Appeals

      No. 03-3235.

      Submitted on briefs September 9, 2004.

    Decided November 10, 2004.

    2004 WI App 231
    (Also reported in 691 N.W.2d 705.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of John M. Murphy of Leece & Phillips, S.C. of Elkhorn.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of David C. Williams of Harrison, Williams, McDonell, Swatek & Buttram, LLP of Lake Geneva.
    Before Anderson, EJ., Brown and Nettesheim, JJ.

       Petition to review denied 4-6-2005.

   BROWN, J.

¶ 1. This case involves an issue of first impression, namely, whether consumer protection regulations pierce the corporate veil and allow for personal liability against individual wrongdoers. We hold that they do if it is shown that the individual — rather than the entity — is responsible for devising the unfair method of selling home improvements. The purpose of these laws is to protect homeowners from unfair dealings and practices in areas such as the home improvement arena. The law means, by its clear terms, to expose to liability any person or entity responsible for plotting an unfair method of interaction. In this case, it was the person and not the entity. We affirm the trial court's denial of the individual's motion to dismiss the case on the basis that only the alleged wrongdoer's alter ego, a corporation, may be sued. We do, however, allow dismissal as to his wife, because there is no evidence of her involvement other than being an officer of the corporation.

¶ 2. On July 16, 1999, Lawrence and Sally Rayner entered into a contract for home improvements to their Lake Geneva residence. These improvements consisted of an addition to the home as well as remodeling, at a stated cost of $594,390. The contract is entitled "AGREEMENT BETWEEN OWNER and CONTRACTOR" and designates the Rayners as "Owners."

¶ 3. The record is less clear as to the identity of the "Contractor." On the one hand, the first page of the Agreement designates Reeves Custom Builders, Inc. as the contractor. Moreover, a cost estimate sheet prepared two weeks prior to the contract date appears on a Reeves Custom Builders, Inc. letterhead. The person the Rayners dealt with in negotiating and attempting to complete the contract was Arthur J. Reeves, who was the president of Reeves Custom Builders, Inc. at all times relevant to these proceedings.

¶ 4. On the other hand, other evidence in the record suggests that Arthur in his individual capacity was the contractor. The signature page of the Agreement does not reference the corporation. Under "Contractor" the signature line contains the signature "Arthur J. Reeves." The line directly beneath for "Printed Name and Title" also simply names "Arthur J. Reeves," with no reference to Reeves Custom Builders, Inc. or to Arthur's position as president. An addendum to the Agreement also contains Arthur's signature without reference to the corporation or to Arthur in his official capacity as president thereof.

¶ 5. In any event, the Rayners became unhappy with the work. On July 27,2001, they filed a complaint, which they later amended on February 25, 2002. The amended complaint named as defendants Arthur, Reeves Custom Builders, Inc., and Arthur's wife, Beth E. Reeves, in her capacity as a shareholder, officer, director, and employee of defendant Reeves Custom Builders, Inc. The record reflects that Beth's duties at the time included typing certain documents and some of the bookkeeping responsibilities.

¶ 6. The complaint stated two causes of action. The first alleged violation of various provisions of Wis. Admin. Code ch. ATCP 110 (2004), entitled, "HOME IMPROVEMENT PRACTICES," which the Wisconsin Department of Agriculture, Trade and Consumer Protection enacted pursuant to Wis. Stat. § 100.20(2) (2001-02). See Wis. Admin. Code ch. ATCP 110 note. The second cause of action was for breach of contract. It stated that the Wis. Admin. Code ch. ATCP 110 violations constituted such a breach and further alleged that defendant Reeves Custom Builders, Inc. failed to complete the contract for the contract price.

¶ 7. On March 17, 2003, Arthur and Beth filed a motion to dismiss them personally from the action, contending that the amended complaint failed to state a claim against them individually. The circuit court heard argument on this matter on November 12. The Rayners contended that the Reeveses were personally liable under the definition of "seller" in Wis. Admin. Code § ATCP 110.01(5) as "person[s] engaged in the business of making or selling home improvements and includes corporations, partnerships, associations and any other form of business organization or entity, and their officers, representatives, agents and employees." They maintained that because Arthur and Beth admitted they were officers of the corporation, they were automatically liable under that definition, which pierces the corporate veil by its very terms.

¶ 8. The Reeveses countered that the definition merely intended to make clear that agency principles applied to remodeling contractors. To interpret it otherwise, they argued, "would totally abrogate centuries of corporation limited liability law," which provides for limited liability for individual corporate actors. They also disputed that the legislature would have intended to give plaintiffs carte blanche to sue even mere employees.

¶ 9. The circuit court denied the motion. "The statute says what it says, and ... I don't feel comfortable in granting summary judgment when it says they are sellers." The Reeveses petitioned for leave to appeal a nonfinal order, and we granted their petition.

¶ 10. On appeal, the Reeveses advance the same construction of Wis. Admin. Code § ATCP 110.01(5) they proposed below, one which interprets "and their officers, representatives, agents and employees" to simply impose vicarious liability on employers for the acts of these individuals. In support of their preferred construction, they urge us to compare this case to Alberte v. Anew Health Care Services, Inc., 2000 WI 7, 232 Wis. 2d 587, 605 N.W.2d 515, in which our supreme court held that the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (1994) did not contemplate holding an employer's agent personally hable for violations of the Act. Alberte, 232 Wis. 2d 587, ¶¶ 1, 6. The ADA prohibits "covered entities" from discriminating against the disabled. See id., ¶ 8; ADA, 42 U.S.C. § 12112(a). A "covered entity" includes "employers," defined to include persons "engaged in an industry affecting commerce who [have] 15 or more employees . . . and any agent of such personfs]." See Alberte, 232 Wis. 2d 587, ¶ 8 (emphasis added in opinion); ADA, 42 U.S.C. § 12111(2), (5)(A).

¶ 11. Reviewing the issue de novo, see Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 978, 542 N.W.2d 148 (1996) (statutory construction presents a question of law that mandates our de novo review), we reject the Reeveses' comparison and conclude that Wis. Admin. Code § ATCP 110.01(5) does provide for liability for individual wrongdoers. Our supreme court decided Al-berte in the wake of several federal circuit court cases, to which it looked for guidance. These many authorities included United States E.E.O.C. v. AIC Security Investigations, Ltd., 55 F.3d 1276 (7th Cir. 1995), which cut right to the heart of the ADA's rationale for imposing liability on only employers in rejecting the appellants' "Chicken Little-esque" contention that "through the loophole of no individual liability will pour a flood of unpunished and undeterrable discrimination." Id. at 1282. The Seventh Circuit stated, "The employing entity is still liable, and that entity and its managers have the proper incentives to adequately discipline wayward employees, as well as to instruct and train employees to avoid actions that might impose liability." Id. (citation omitted.)

¶ 12. The hiring, firing, promotion, demotion, and discipline of employees are internal personnel decisions, over which employers can exercise administrative oversight. They can control their workplace environments by choosing supervisors, promulgating and enforcing guidelines, and training their personnel about workplace-appropriate behavior. See Kristi Lappe, Comment, "I Just Work HerePrecluding Supervisors' Individual Liability Under the Federal Anti- discrimination Statutes and the Arizona Civil Rights Act, 27 Ariz. St. L.J. 1301, 1313 (1995). Accordingly, most courts have placed the onus of providing a discrimination-free workplace on the employer. See id. at 1305, 1312-13. The power to eradicate workplace discrimination is in the employer.

¶ 13. Limiting liability to respondeat superior when an agent of an employer violates the ADA is consistent with effectuating the purpose of the ADA, but it would not further the underlying policies of Wis. Admin. Code ch. ATCP 110, namely, protecting consumers in the home improvement arena from unfair and deceptive trade practices. As we noted above, the DATCP promulgated ch. ATCP 110 pursuant to Wis. Stat. § 100.20(2), which allows the DATCP to issue general orders forbidding unfair trade practices. Section 100.20, entitled, "Methods of competition and trade practices," was a consumer protection measure designed to prevent unfair competition and trade practices. See § 100.20(1); Amy Algiers Anderson, Comment, State Deceptive Trade Practices and Consumer Protection Acts: Should Wisconsin Lawyers be Susceptible to Liability Under Section 100.20?, 83 Marq. L. Rev. 497, 511-12 (1999).

¶ 14. Unlike personnel decisions, which involve purely internal business practices, the home improvement industry involves individuals interacting with people on the outside. Many of these contacts and negotiations occur out in the field and in the customer's home. Where the individual's employer has not instructed him or her to engage in improper conduct, the employer has little opportunity to exercise direct oversight of its agents to prevent such conduct. On the other hand, the individual clearly does possess the power to ensure fair dealing and practices. Allowing a corporate agent to use the corporate form to shield malfeasance of his or her own design inadequately deters such practices. In Jackson v. DeWitt, 224 Wis. 2d 877, 887, 592 N.W.2d 262 (Ct. App. 1999), we stated, "public policy dictates that consumer protection statutes and administrative rules must be read in pari materia to achieve the goal of providing protection and remedies to consumers." Accordingly, we construe "and their officers, representatives, agents and employees," see Wis. Admin Code § ATCP 110.01(5), to have its plain meaning: all of the named individuals and entities are potential sources of the unfair methods of dealing that Wis. Stat. § 100.20 meant to stamp out. To the extent individuals have the power to prevent unfair dealings with consumers, individuals will incur liability for noncompliance.

¶ 15. We briefly deal with three additional contentions the Reeveses present. First, we reject their assertion that imposing liability on mere employees is absurd simply because they are "lowest on the chain of command and least likely to have any input on the operations of the corporation." Our holding does not subject the janitor who mops the office floor to personal liability. We hold individuals liable as sellers only when they commit violations of their own volition and design; we do not hold them vicariously liable for all vices imputable to the corporate entity.

¶ 16. Second, we disagree that Alberte decides this case on the basis that, as in that case, "the remedial structure of ATCP 110 indicates that the [legislating authority] did not intend to create personal liability for corporate representatives." The Reeveses rely on Wis. Admin. Code §ATCP 110.07(2)(a)-(d), which list such remedies as cancellation of the contract, return of all payments the seller has not expended yet on the improvements, and delivery of unused materials to the home improvement site. They wholly ignore subsec. (5), which makes clear that the remedies in this section are neither exclusive nor a prerequisite to or a limitation on any other remedies. Further, Wis. Admin. Code ch. ATCP 110 note reads, "A person who suffers a monetary loss because of a violation of this chapter may sue the violator directly under [Wis. Stat. § 100.20(5)] and may recover twice the amount of the loss, together with costs and reasonable attorneys' fees." We see no inherent inconsistency with individual liability.

¶ 17. Third, the Reeveses contend that because the statute does not say in so many words that it intends to allow piercing of the corporate veil that the DATCP had no authority to do so through its definition of "seller" in Wis. Admin. Code § ATCP 110.01(5). We disagree. As we stated above, holding individual wrongdoers accountable is necessary in order to adequately effectuate the purpose behind Wis. Stat. § 100.20, protecting consumers from unfair dealings. We will not read § 100.20(2) to hand the DATCP an empty mandate. When we construe a statute, we aim to discern and give effect to the legislature's intent. Novak v. Madison Motel Assocs., 188 Wis. 2d 407, 414, 525 N.W.2d 123 (Ct. App. 1994). We presume the legislature intended a construction that advances rather than defeats its purpose. Id. Where the corporate veil frustrates the purpose of a statute, we must assume the legislature intended to pierce it.

¶ 18. Having decided that individuals may be held individually accountable for violations of Wis. Admin. Code ch. ATCP 110, we now consider whether the circuit court properly denied the Reeveses' motion for summary judgment. We review independently a motion for summary judgment, employing the same well-known methodology the circuit court employs. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-17, 401 N.W.2d 816 (1987); Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751. Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Green Spring Farms, 136 Wis. 2d at 315.

¶ 19. We hold that the circuit court properly refused to dismiss Arthur from the action but that it should have granted the motion with respect to Beth. The plaintiffs allege that Arthur was their contact person throughout their dealings. He signed the contract, and all negotiations regarding the contract were with him. Thus, whether the contract was with Arthur in his individual capacity or whether he negotiated and performed under the contract as an agent of Reeves Custom Builders, Inc., the Rayners may hale him into court to answer their charges that he violated Wis. Admin. Code ch. ATCP 110. As the president of the corporation, he clearly was not merely an underling taking orders from a superior. Any corporate decision to act as he did originated with him.

¶ 20. The pleadings are insufficient as to Beth, however. The Rayners have not pleaded any facts that would indicate she either perpetrated any of the Wis. Admin. Code ch. ATCP 110 violations or had the power to prevent or rectify them. The record only reveals that at the relevant time, her role included typing certain documents and doing some of the corporation's bookwork. At the time of Arthur's deposition, she also answered and recorded phone calls and did some administrative paperwork. Even if true, these facts do not establish liability. It is not enough that she is merely a "shareholder, officer, director, and employee."

¶ 21. We dismiss Beth from the action, but we affirm the circuit court's order insofar as it refused to grant summary judgment in favor of Arthur. If the Rayners' allegations with respect to the Wis. Admin. Code ch. ATCP 110 violations turn out to be true, Arthur is accountable for them whether he contracted in his own individual capacity as Arthur J. Reeves or as an agent of Reeves Custom Builders, Inc. Shielding him from liability for perpetrating or permitting such violations in either capacity frustrates the purposes of the law.

By the Court. — Order affirmed in part and reversed in part.

       The date on the contract is July 16, but the complaint is less specific, placing the contracting date at "[o]n or about July 15, 1999."

       All references to the Wisconsin Administrative Code are to the 2004 version unless noted otherwise.

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

       All further references to the United States Code are to the 2004 version unless otherwise noted.

         United States E.E.O.C. v. AIC Security Investigations, Ltd., 55 F.3d 1276 (7th Cir. 1995), cites to Miller v. Maxwell's International Inc., 991 F.2d 583, 588 (9th Cir. 1993), which uses a similar rationale in refusing to impose individual liability on employees who violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (1988), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (1988). Both Title VII and the ADEA define "employer" substantially identically to the ADA definition. Alberte, 232 Wis. 2d 587, ¶ 11.

       This inadequacy is even more apparent in cases where the employer is an insolvent corporation. In such cases "[t]o permit an agent of a corporation ... to inflict wrong and injuries upon others, and then shield himself [or herself] from liability behind his [or her] vicarious character, would often both sanction and encourage the perpetration of flagrant and wanton injuries by agents of insolvent and irresponsible corporations." See Hoang v. Arbess, 80 P.3d 863, 867 (Colo. Ct. App. 2003) (citation omitted) (holding that the Colorado Consumer Protection Act allowed suit against agents as individuals), cert. denied, 2003 Colo. LEXIS 954 (No. 03SC338) (Colo. Dec. 1, 2003). Significantly, the Reeveses represent to this court that Reeves Custom Builders, Inc. has filed for bankruptcy.

       Our holding finds further support in FTC v. Amy Travel Service, Inc., 875 F.2d 564 (7th Cir. 1989). The Wisconsin Legislature modeled Wis. Stat. § 100.20 after § 5 of the Federal Trade Commission Act of 1914, currently codified at 15 U.S.C. § 45. See Amy Algiers Anderson, Comment, State Deceptive Trade Practices and Consumer Protection Acts: Should Wisconsin Lawyers be Susceptible to Liability Under Section 100.20?, 83 Makq. L. Rev. 497, 512, 512 n.132 (1999). Compare
        § 100.20(1) with 15 U.S.C. § 45(a)(1) (language substantively identical). In Amy Travel Service, Inc., the Seventh Circuit held that individuals could be held liable once the Federal Trade Commission established corporate liability for violations of § 45 if the FTC could further prove that the individual was involved personally in the improper conduct or had the authority to control it. Amy Travel Service, Inc., 875 F.2d at 566, 570, 573.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    Estate of Kimberly Paswaters, by her Personal Representative, Christine Hagan, Cristalynn Paswaters, Mistie Paswaters, Noel Paswaters, and Heather Paswaters, by their Guardian ad Litem, David K. Sparr, Plaintiffs-Appellants, v. American Family Mutual Insurance Company and Harold Beck, Defendants-Respondents.
    Court of Appeals

      No. 04-0532.

      Submitted on briefs October 7, 2004.

    Decided November 10, 2004.

    2004 WI App 233
    (Also reported in 692 N.W.2d 299.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Timothy J. Aiken and James C. Gallanis oí Aiken & Scoptur, S.C. of Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Colleen D. Ball of Wau-watosa and William R. Wick of Nash, Spindler, Grims-tad & McCracken LLP of Manitowoc.
    Before Brown, Nettesheim and Snyder, JJ.

       Petition to review denied 1-11-2005.

   BROWN, J.

¶ 1. This case involves a wrongful death action by the estate and minor children of shooting victim Kimberly Paswaters. The circuit court held that public policy considerations precluded imposing liability on Harold Beck for allowing his infuriated brother David Beck to secretly eavesdrop on a meeting Harold arranged with Kim to talk through some romantic difficulties she and David had been experiencing without warning her that David had expressed a desire to kill her earlier that evening. We affirm. David's threats to kill Kim and himself on the fatal night were consistent with how David characteristically expressed anger, while his eruption into actual violence was an unprecedented occurrence. Good social policy does not allow us to impose liability on individuals who fail to predict erratic and irrational human behavior.

¶ 2. Both parties stipulate to all the material facts in this case. They are as follows. On January 6, 2001, David murdered his girlfriend Kdm, shooting her at close range five times with a Baretta nine-millimeter semiautomatic pistol. The shooting took place at the Campbellsport Fire Department in the presence of David's brother Harold.

¶ 3. At the time of the shooting, David and Kim's relationship had been tumultuous and unstable for some time. They had dated for roughly a year and lived together for several months, but the relationship soured, and as of about six months prior to the shooting, their cohabitation ended. The record reflects no history of domestic violence between the two, and Harold was not aware of any.

¶ 4. On the night of the shooting, a very upset David called Harold at around six o'clock. He was upset because he did not understand why his relationship with Kim was not going well. David had asked another brother, Jim, to intercede and talk to Kim for him about the relationship, but Jim had refused to get involved, so David called Harold instead. He urged Harold to talk to her and expressed that he wanted support from his family in working through these romantic difficulties. Harold agreed to mediate the dispute and call Kim.

¶ 5. During this conversation, David had threatened that he was going to "take care of business tonight," that "he was fed up [and] couldn't take it no more." He explained that by "take care of business," he meant killing both Kim and himself. Harold did not take the threat seriously. He stated he did not pay much attention because "every time [David] got pissed off, he threatened to kill somebody or shoot himself." "[H]e always shot his mouth off.. . he always said that he'd do something and he never did." In fact, he had made similar comments to Harold about Kim roughly a month and a half earlier, stating that "he couldn't live without her and he wanted her to hurt as much as she's hurting him." As usual when David "shot his mouth off," nothing happened.

¶ 6. As promised, Harold called Kim and left a message on her answering machine. While Harold awaited her response, David called back, still anxious about the status of the relationship but seemingly less upset. He suggested that when Kim returned Harold's call, Harold should ask to meet her at the Campbell-sport Fire Department. Harold agreed that meeting at this spot was "a good idea" because it was "neutral ground" where he and Kim could talk without either party's children present. When David expressed a desire to be present, Harold told him it was his relationship and it was his choice whether he wanted to hear what Kim had to say.

¶ 7. Kim called back thirty to forty-five minutes after Harold left the message on her machine. She agreed to talk to Harold and to meet him at the firehouse in ten to fifteen minutes. Harold then called David to inform him about the meeting.

¶ 8. While Harold waited at the firehouse, David ran past him, shouting, "she's here" and ran upstairs to a mezzanine area, where Harold assumed he intended to hide while he eavesdropped on the conversation. Harold was aware that David owned a gun but had no idea that David had it with him that night. Kim arrived very shortly after David. Harold did not warn Kim about David's threats or that David was present at the meeting. He planned to reveal David's presence only after their conversation because he thought she would speak more openly if she did not know David was around. Harold admitted he expected David to call one or both of them a "liar" and to scream and yell if David heard something he did not like.

¶ 9. Harold and Kim began discussing the relationship. Kim expressed that she only desired friendship and that David was unreceptive to that because he wanted more. She admitted that the two were still having "on and off sexual relations. Harold explained that he thought this dynamic might be confusing David, having a "yo-yo [e]ffect" on him, but Kim said she did not see it that way.

¶ 10. At that point, David ran down from his hiding place and began firing at Kim. When David finished shooting, he rolled Kim over and said, "It hurts now, don't it?" Harold stepped forward at that point to examine Kim's wounds, and David responded by pointing the gun at Harold, with his finger on the trigger. Harold told David to take it easy, and David made clear he did not want Harold to call an ambulance because there was already an EMT (meaning Harold) on the scene. As soon as David lowered the gun, Harold fled to his house and called 911.

¶ 11. On September 23, 2002, Kim's estate and her minor children commenced a wrongful death action against Harold and his liability insurer, American Family Mutual Insurance Company, alleging that Harold's negligence had caused Kim's death. The parties stipulated to: (1) the facts; (2) causation; (3) damages; and (4) Harold's negligence in order to get declaratory judgment or summary judgment on the issue of whether — assuming Harold was negligent — public policy considerations would nonetheless bar liability.

¶ 12. The circuit court announced its ruling on December 30, 2003. It held that public policy did in fact preclude liability in this case and granted the defendants' motion for summary judgment. The court cited several reasons for its ruling, including: (1) the highly extraordinary nature of the result; (2) the fact that liability would not have any sensible stopping point; (3) liability "would place an unreasonable burden on people to try to predict human nature"; and (4) the harm caused in this case was out of proportion to Harold's culpability. The plaintiffs appeal.

¶ 13. We review a motion for summary judgment de novo, using the same well-established methodology as the circuit court. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-17, 401 N.W.2d 816 (1987); Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751. We will grant summary judgment relief when the moving party is entitled to judgment as a matter of law and no genuine issue exists as to any material fact. Green Spring Farms, 136 Wis. 2d at 315. Here, the parties have stipulated to all material facts, and we are left with only a question of law that we review independently, namely, whether public policy precludes liability for Harold's negligence. See Gritzner v. Michael R., 2000 WI 68, ¶ 27, 235 Wis. 2d 781, 611 N.W.2d 906.

¶ 14. Public policy considerations can preclude negligence liability even when a plaintiff has proven its case. Id., ¶ 26. The courts have specifically recognized six considerations, any one of which will cut off liability if present. See id., ¶ 27. We will not recognize liability when: (1) the injury is too remote from the negligence; (2) the injury is wildly out of proportion to the tortfeasor's culpability; (3) in retrospect it appears too highly extraordinary that the defendant's negligence resulted in the harm; (4) allowing recovery would place an unreasonable burden on the tortfeasor; (5) allowing recovery would open the way for too many fraudulent claims; or (6) allowing recovery would enter a field that has no sensible or just stopping point. Id.

¶ 15. This case implicates at least two of the policy considerations above. We first observe that liability would shoulder Harold with the unreasonable burden of predicting human nature, which in David's case was highly erratic and irrational. Harold expected David to yell, scream, and verbally assault both Kim and himself. This result was consistent with the David that Harold knew. To expect Harold to avoid the unexpected actual result — murder in his presence — would require him to ignore the facts he knew to be true at the time of the shooting: (1) David was a nonviolent person who had never hurt anyone before; (2) in fact, despite the tumultuous nature of his relationship with Kim, there was no history whatsoever of domestic violence; (3) expressing a desire to kill others and himself was David's characteristic and harmless way of expressing anger; and (4) David had asked for Harold's help in understanding what went wrong with the relationship. In short, Harold would have had to thoroughly discount years of familiarity and experience with David's personality and behavior and guessed that his brother unwittingly planned to use him as a pawn in a scheme to murder someone.

¶ 16. In addition to the unreasonableness of saddling Harold with the burden of predicting human behavior, we conclude that Harold's culpability is grossly out of proportion to the result of murder. Harold expected his brother to yell and scream, essentially to "shoot his mouth off' as was his habit. He should not have exposed Kim to this sort of unpleasantness. However, he was merely attempting to resolve a dispute between David and Kim in a way he thought would allow Kim to feel comfortable about being honest about her feelings. He was trying to help his brother resolve his relationship problems, not to set Kim up so David could end the relationship with fatal violence, an extraordinary result he could not have anticipated.

¶ 17. In arguing that none of the six public policy considerations apply, the appellants attempt to distinguish this case from several others. They differentiate Gritzner and Kelli T-G. v. Charland, 198 Wis. 2d 123, 542 N.W.2d 175 (Ct. App. 1995), on the ground that in those cases, the defendants merely knew that a third person had dangerous propensities, whereas here, David singled out Kim as his particular intended victim and specified that he wanted to kill her that night (after which Harold took actions that facilitated the execution of that threat).

¶ 18. In Kelli T-G., this court refused to impose a "duty to warn" on the defendant, who knew that her daughter's friend often played with her daughter at her ex-husband's house, yet failed to inform the child's mother that her ex-husband had pedophilic propensities. Kelli T-G., 198 Wis. 2d at 125-27. In Gritzner, the court unanimously held only that a duty to warn would exist if required by one's legal duty to exercise ordinary care in "all activities," Gritzner, 235 Wis. 2d 781, ¶¶ 22, 43 (Wilcox, J., lead opinion); id., ¶¶ 76, 77 (Abraham-son, C.J., concurring), but a majority held that a full factual record was necessary before deciding whether public policy considerations precluded liability in that case. Id., ¶¶ 75, 85-86. That case involved allegations that the defendant allowed his girlfriend's ten-year-old boy to play with his neighbor's four-year-old girl without informing the girl's mother that the boy had molested other children in the past. Id., ¶¶ 1, 7-11. The appellants opine that Gritzner and Kelli T-G. probably would have come out differently, i.e., decisively in favor of liability, had the third person expressed to the defendant an interest in harming the particular victim at a particular time.

¶ 19. The appellants also contend that this case differs from Conroy v. Marquette University, 220 Wis. 2d 81, 582 N.W.2d 126 (Ct. App. 1998). In Conroy, this court refused to impose liability on Marquette University when an expelled student attacked a fellow student with a broken bottle at an off-campus nightclub the night after the latter, a resident assistant, had checked the student out of her dormitory room. In that case, the appellants remind us, we pointed to the remoteness in time and the fact that Marquette University had no control over the "operative circumstances" of the attack in holding that public policy precluded liability. Id. at 88. In this case, by contrast, the attack occurred the same evening, and Harold participated in not only setting up and choosing the location of the meeting, but covering up the fact that David was present and hiding, listening as Kim discussed intimate details of the couple’s relationship. The appellants state, "In Conroy, Marquette controlled none of the operative circumstances . . . [whereas] [i]n this case, Harold controlled almost all of the operative circumstances .... "

¶ 20. We reject the appellants' attempt to distinguish these three cases. First, even if we indulge their assumption that Gritzner and Kelli T-G. would have come out differently had the perpetrators of the sexual abuse expressed interest in their particular victims, the facts of those cases are distinguishable. In those cases, the defendants knew that the perpetrators had a propensity for molesting children. Here, Harold knew just the opposite: that his brother was all mouth and no action. Second, with respect to Conroy, the court's discussion of the temporal remoteness and lack of control over the "operative circumstances" of the attack only explained why the remoteness of the injury from Marquette's negligence should allow Marquette to escape liability. Even if we agreed with the appellants that the injury here is not too remote from Harold's negligence, we have already stated above that we need only find that one of the six policy considerations applies. See Gritzner, 235 Wis. 2d 781, ¶ 27. We have discussed several.

¶ 21. Although the parties have stipulated that Harold acted negligently, we hold that public policy considerations preclude holding him liable for Kim's death. It is unreasonable to expect people in Harold's position to attempt to predict erratic and irrational human behavior. Moreover, Kim's death is a result wholly out of proportion to Harold's culpability. We affirm.

By the Court. — Judgment affirmed.

       The appellants are correct that we will hold a negligent defendant liable for unforeseeable consequences of his or her conduct as well as foreseeable ones. A. E. Inv. Corp. v. Link Builders, Inc., 62 Wis. 2d 479, 484, 214 N.W.2d 764 (1974). However, we will not do so to the extent that imposing liability would violate public policy.
      The circuit court cited Conroy v. Marquette University, 220 Wis. 2d 81, 582 N.W.2d 126 (Ct. App. 1998), for the proposition that imposing liability would "place an unreasonable burden upon people to try to predict human nature." Conroy did not characterize the policy issue as an "unreasonable burden" issue. Instead it held that in retrospect, it was too highly extraordinary that Marquette's negligence, allowing a student employee to check an expelled student out of her room, should have brought about the harm, namely, the expelled student's attack on the student employee. Id. at 90-91. In reaching its holding, however, the court observed that Marquette had no notice that a physical attack was likely, id., and observed that the assailant's conduct "was not the sort of behavior that was rational or predictable," id. at 90. We therefore conclude that it makes little difference whether we characterize the issue as one involving the extraordinary result consideration or the unreasonable burden consideration.

        Kelli T-G. v. Charland, 198 Wis. 2d 123, 129, 542 N.W.2d 175 (Ct. App. 1995), appeared to establish a bright-line rule that, as a matter of public policy, there can never be a common law duty to warn third persons of potential dangers in the absence of a special relationship. In Gritzner v. Michael R., 2000 WI 68, 235 Wis. 2d 781, 611 N.W.2d 906, both the supreme court majority and the minority rejected this bright-hne rule in favor of a case-by-case approach. Thus, to the extent that Kelly T-G. announced a bright-line rule, Gritzner sub silentio has overruled Kelly T-G.


author: VERGERONT, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. James A. Schmidt, Defendant-Appellant.
    Court of Appeals

      No. 04-0904-CR.

      Submitted on briefs September 7, 2004.

      Decided November 11, 2004.

    2004 WI App 235
    (Also reported in 691 N.W.2d 379.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Daniel S. Diehn of Daniel S. Diehn, S.C., Black River Falls.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Shannon Wittenberger, asst, attorney general, and Peggy A. Lautenschlager, attorney general.

      Before Dykman, Vergeront and Higginbotham, JJ.
   VERGERONT, J.

¶ 1. James Schmidt appeals the judgment of conviction for operating a motor vehicle while intoxicated (OWI), fifth offense, in violation of Wis. Stat. §§ 346.63(l)(a) and 346.65(g). He challenges the circuit court's order denying his motion to suppress the results of a blood test for alcohol, contending he was entitled to suppression because he was not given a breathalyzer test after the blood test as required by Wis. Stat. § 343.305(5)(a).

¶ 2. We agree with Schmidt that an accused's request for an additional chemical test under Wis. Stat. § 343.305(5)(a) is not invalid solely because that request was made before and not after submitting to the test the law enforcement officer asked the accused to take. However, we nonetheless conclude that the circuit court properly denied Schmidt's motion because, based on the facts as found by the circuit court, Schmidt did not request an additional test. Accordingly, we affirm.

BACKGROUND

¶ 3. On April 10, 2003, Schmidt was involved in a one-vehicle accident and walked from the scene to his parents' house. Jackson County Deputy Sheriff Michael Tauscher arrested Schmidt there for operating a motor vehicle while intoxicated, after observing that Schmidt had slurred speech and smelled of intoxicants. Deputy Tauscher told Schmidt they were going to the hospital to have a blood draw performed. Schmidt said he wanted a breathalyzer test rather than a blood test. Deputy Tauscher replied that the first test he was offering was a blood test and Schmidt would have to take that first; if Schmidt took the blood test, he could then take a breathalyzer test. Schmidt stated several times thereafter that he would rather take the breathalyzer test than the blood test. He explained that he did not want a blood test because when he had one before, the results were much higher than the results of the other test. After this discussion, Deputy Tauscher read Schmidt an "Informing the Accused" form, which informed Schmidt of the penalties for refusing to take the test the officer requested. The form also informed Schmidt that he could take an alternative test provided by the law enforcement agency free of charge if he took the requested test.

¶ 4. After Deputy Tauscher read this form, Schmidt cooperated with having his blood drawn. Deputy Tauscher then transported Schmidt to the jail. No breathalyzer test was administered. Deputy Taus-cher testified that, after Schmidt's blood was drawn, Schmidt did not ask to have a breathalyzer test. Schmidt's testimony was in conflict with the officer's on this point. Schmidt testified that, after the blood draw, he told Deputy Tauscher he still wanted a breathalyzer test and it was his understanding that he was going to be given one.

¶ 5. The trial court found that Schmidt stated that he would rather have a breathalyzer test than a blood test several times, but that after the blood test was administered, Schmidt did not request another test. The court explained that it found Deputy Tauscher's testimony on this disputed point more credible than Schmidt's. The court construed Wis. Stat. § 343.305(5)(a) to require that a person must first submit to the test requested by the officer before making a request for an additional test, and, the court stated, the Informing the Accused form also contemplates this. Because the court found Schmidt did not make a request for the breathalyzer test after taking the blood test, it denied Schmidt's motion to suppress the results of the blood test.

DISCUSSION

¶ 6. On appeal, Schmidt contends that Wis. Stat. § 343.305(5)(a) requires suppression of the blood test results because he asked for a breathalyzer test as an additional test and Deputy Tauscher failed to administer one after he took the blood test. Schmidt disputes the circuit court's construction of the statute to require that the request for an additional test be made after the first test has been taken. Instead, Schmidt asserts, when a person asks for a different test before taking the test requested by the officer, after the person takes the test requested by the officer, the officer must inquire whether the person still wants another test.

¶ 7. The State responds that the circuit court correctly construed the statute. In the alternative, the State contends, even if the statute does not require that the additional test be requested after the first test has been taken, the record shows that Schmidt requested the breathalyzer test instead of the blood test, not in addition to it, and this is not a valid request under Wis. Stat. § 343.305(5)(a).

¶ 8. Wisconsin Stat. § 343.305(2) provides that a person operating a motor vehicle on the public highways is deemed to have given consent to one or more tests of his or her breath, blood, or urine for the purpose of determining the presence of alcohol or controlled substances, when requested by a law enforcement officer and consistent with certain statutory prerequisites. The law enforcement agency must be prepared to administer at least two of the three approved tests and may designate which of the tests shall be administered first. Section 343.305(2). See also State v. Vincent, 171 Wis. 2d 124, 128, 490 N.W.2d 761 (Ct. App. 1992). The test designated by the law enforcement agency as the first to be administered is sometimes referred to as the "primary test." State v. Stary, 187 Wis. 2d 266, 269, 522 N.W.2d 32 (Ct. App. 1994).

¶ 9. Wisconsin Stat. § 343.305(5)(a) addresses the additional test the agency must be prepared to administer:

Administering the test; additional tests, (a) If the person submits to a test under this section, the officer shall direct the administering of the test. A blood test is subject to par. (b). The person who submits to the test is permitted, upon his or her request, the alternative test provided by the agency under sub. (2) or, at his or her own expense, reasonable opportunity to have any qualified person of his or her own choosing administer a chemical test for the purpose specified under sub. (2).... The agency shall comply with a request made in accordance with this paragraph.

¶ 10. At the time the officer asks an accused to submit to a chemical test, the officer must read to the accused a form prescribed by statute. Wis. Stat. § 343.305(4). This form is generally referred to as the "Informing the Accused" form. The form must explain, among other things, that the officer wants to take samples of the accused's breath, blood, or. urine to determine the concentration of alcohol or drugs in the accused's system. The form must also state: "If you take all the requested tests, you may choose to take further tests. You may take the alternative test that this law enforcement agency provides free of charge. You also may have a test conducted by a qualified person of your choice at your expense." Section 343.305(4). The Informing the Accused form Deputy Tauscher read to Schmidt contained this language.

¶ 11. Although Wis. Stat. § 343.305(4) and (5) use the term "alternative test," it is clear from these provisions that the accused does not have a right to choose a test instead of the one the officer asks him or her to take; rather, the "alternative test" is in addition to that test. It is for this reason that the case law sometimes refers to the "alternative test" as the "second" or "additional" test. See, e.g., State v. Piddington, 2001 WI 24, ¶ 51, 241 Wis. 2d 754, 623 N.W.2d 528 ("second, alternative test"); State v. Renard, 123 Wis. 2d 458, 460, 367 N.W.2d 237 (Ct. App. 1985) ("additional test"). We will use the term "additional test" in this opinion.

¶ 12. The purpose of the additional test is to afford the accused the opportunity to verify or challenge the results of the first or primary test. See State v. McCrossen, 129 Wis. 2d 277, 288, 297, 385 N.W.2d 161 (1986). If the accused makes a valid request for an additional test, the officer must exercise reasonable diligence in providing it. Renard, 123 Wis. 2d at 460-61.

¶ 13. Whether Schmidt made a request for an additional test as required by Wis. Stat. § 343.305(5)(a) requires us to construe and apply that provision to the facts of this case. We accept the findings of fact made by the circuit court unless they are clearly erroneous, Wis. Stat. § 805.17(2); and we accept the credibility determinations made by the circuit court sitting as the trier of fact. Rivera v. Eisenberg, 95 Wis. 2d 384, 388, 290 N.W.2d 539 (1980). However, construction of the statute and its application to the facts as found by the circuit court present a question of law, which we review de novo. State v. Stary, 187 Wis. 2d 266, 269, 522 N.W.2d 32 (Ct. App. 1994).

¶ 14. The circuit court here made two critical findings of fact: (1) when Deputy Tauscher requested that Schmidt provide a blood sample for a test, Schmidt said he "would rather take a breath test"; and (2) while Schmidt said this more than once, after he took the blood test he did not request another test. We accept these findings because they are supported by the record and involve credibility determinations that are properly the role of the circuit court.

¶ 15. When we construe a statute, we begin with the language of the statute and give it the common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language in the context in which it is used, not in isolation, but as part of a whole, in relation to the language of surrounding or closely-related statutes; and we avoid constructions that produce unreasonable or absurd results. Id., ¶ 46. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶ 48. If, employing these principles, statutory language is ambiguous— that is, reasonably gives rise to different meanings— then we may consult extrinsic sources of interpretation, such as legislative history. Id., ¶ 46.

¶ 16. We consider first whether Wis. Stat. § 343.305(5)(a) requires that a request for an additional test must be made after the first test has been taken. The State relies on the language, "The person who submits to the test is permitted, upon his or her request, the alternative test provided by the agency ...." This language, the State asserts, means the person is permitted to make a request only after submitting to a test. Schmidt, in contrast, asserts that this language does not impose a timing requirement on the request for an additional test, but rather on the taking of the additional test: a person may not take the additional test until he or she takes the first test. Both parties find support for their positions in Renard, 123 Wis. 2d 458, and Piddington, 241 Wis. 2d 754, but we conclude neither case resolves the issue.

¶ 17. In Renard, as in this case, the officer requested that the accused submit to a blood test, the accused requested that a breathalyzer test be performed instead, but he did submit to a blood test, and no breathalyzer test was performed. Renard, 123 Wis. 2d at 460. Also as in this case, there was a dispute between Renard and the officer regarding Renard's requests. We characterized that dispute as: "Renard and his wife claim he continued to request the breathalyzer test after he consented to the blood test [and] [t]he officer denied this contention." Id. However, unlike the circuit court in this case, the circuit court found that Renard requested a breathalyzer test "in addition to the blood test." Id. We concluded this finding was supported by the record and, because the officer failed to provide the additional test, we concluded that suppression of the blood test result was an appropriate sanction. Id. at 461.

¶ 18. Because it was unnecessary to do so in Renard, we did not discuss whether Renard's testimony was that he requested a breathalyzer test after agreeing to take the blood test but before taking the blood test, or whether his testimony was that he requested a breathalyzer test after he took the blood test. Schmidt argues the former interpretation of Renard's testimony; the State argues the latter. However, we simply did not address this factual distinction, and, thus, the decision does not resolve the question whether the statute requires that the request for the additional test' be made after taking the first test.

¶ 19. The supreme court in Piddington has since described Renard as involving a request for an additional test after taking the first one. Piddington, 241 Wis. 2d 754, ¶ 51. There the accused, who was deaf, wrote a note to the officer asking for a blood test, and he was given a blood test. Id., ¶¶ 2, 5-6. One of the grounds on which Piddington sought to suppress the results of the blood test was that he requested an additional test but did not receive it. Id., ¶ 50. The supreme court rejected this argument because, it stated, the circuit court made no factual finding that Piddington had requested a "second, alternative" test. Id., ¶ 51. The supreme court distinguished Renard, on which Piddington relied, saying that there "the circuit court found that the accused driver had repeatedly requested an additional chemical test that was not given," id., ¶ 50, and "[ujnlike in Renard,. . . Pidding-ton did not request a second alternative test after he submitted to the initial test." Id., ¶ 51 (emphasis added).

¶ 20. Although the Piddington court's reference to Renard supports the State's reading of the facts in Renard, it does not support the State's position that a request for an additional test must be made after taking the first test in order to be valid. Because there was no finding Piddington ever made any request for a test in addition to the blood test that was administered, there was no need for the court in Piddington to address when such a request must he made in order to be valid. In describing the accused in Renard as requesting an additional test "after" submitting to the initial test, the Piddington court is simply describing its view of the facts in Renard. It is not holding, as the State asserts, that a request for an additional test is not valid unless made after the first test has been administered.

¶ 21. Another case that refers to the timing of the request for an additional test is Village of Oregon v. Bryant, 188 Wis. 2d 680, 524 N.W.2d 635 (1994). In the context of rejecting the argument that the Informing the Accused form there did not adequately inform the accused of the potential value of an additional test because the form was not given to the accused until after the first test showed a prohibited blood alcohol concentration, the court stated:

It is clear from the "Informing" document read to the accused that the alternative test may be asked for only after compliance with the test requested by the officer under the Implied Consent Law. It is after the accused has been told and knows that he has tested in excess of a permitted BAC that he has the opportunity to have another test. Thus, at this post-initial testing juncture, the accused has been fully informed and knows that he will be administratively suspended because he has failed the first test. There is no additional jeopardy threatened by asking for another test. The accused has absolutely nothing to lose.

188 Wis. 2d at 691.

¶ 22. The Informing the Accused form the court was considering in Bryant stated:

In addition to the test or tests to which you have submitted at the request of a law enforcement officer, after submitting to these tests, you may request the alternative test the law enforcement agency is prepared to administer or you may request a reasonable opportunity to have any qualified person of your choice administer a chemical test at your expense for the purpose specified under s. 343.305(2) Wis. Stats.

Id. at 684. There was no dispute that "the form com-plie[d] with the statutory mandate of sec. 343.305(4), Stats." Id. At that time, the version of Wis. Stat. § 343.305(4) in effect required that the accused be orally informed, among other things, that "[a]fter submitting to testing, the person tested has the right to have an additional test made by a person of his or her own choosing." Section 343.305(4)(d) (1991-92).

¶ 23. We do not view the Bryant court's statement quoted in paragraph 21 as a holding that a request for an additional test is invalid unless made after the first test has been performed. First, the court was considering a differently worded Informing the Accused form, which was based on different statutory language. Second, the court was deciding a different issue: whether the accused was adequately informed of the potential benefits of having a second test.

¶ 24. Because the case law does not resolve the issue of the timing of a valid request for an additional test, we return to the language of Wis. Stat. § 343.305(5)(a). We conclude it is ambiguous on this point. The second sentence does not expressly state that a request for a second test must be made after the first test has been completed. However, the language "the person who submits to the test is permitted, upon his or her request, the alternative test" can be reasonably read to mean that the person making the request must already have submitted to the first test. On the other hand, that same language can be reasonably read to mean that the person making the request will not be permitted to take an additional test until he or she has submitted to the first one, with no timing requirement for the request for the additional test.

¶ 25. We conclude that the language of Wis. Stat. § 343.305(4) does not resolve the ambiguity in § 343.305(5)(a) but instead contains a similar ambiguity. The statement "[i]f you take all the requested tests, you may choose to take further tests" may mean either that taking the requested tests is either a condition for stating a choice for further tests or is a condition for taking further tests. Section 343.305(4). The Informing the Accused form Schmidt was read does not resolve this ambiguity because it is required to, and does, exactly track the language of § 343.305(4).

¶ 26. Although Schmidt and the State each propose a reasonable construction of Wis. Stat. § 343.305(5)(a), we conclude that Schmidt's is more reasonable because it is more consistent with the purpose of affording the accused an additional test and does not thwart other relevant purposes of the implied consent law.

¶ 27. The purpose of the statutorily imposed implied consent to chemical tests is to facilitate the gathering of evidence against drunk drivers. State v. Zielke, 137 Wis. 2d 39, 46, 403 N.W.2d 427 (1987). Allowing law enforcement agencies to choose which of the three types of chemical tests to request an accused take first, and imposing sanctions for a refusal to take the test selected by the agency or officer, as the legislature has done, serves that purpose. The purpose of permitting an accused to take additional tests, as the legislature has also chosen to do, is, as we have already stated, to afford the accused the opportunity to verify or challenge the results of the first test. McCrossen, 129 Wis. 2d at 288. Thus, the requirement that the accused submit to the test requested by the officer before being entitled to any additional test both allows the agency control of the decision of which test to administer first and affords the accused the opportunity to verify or challenge the results of the first agency test. The legislature has also chosen to lessen the burden of additional tests on law enforcement agencies by requiring an agency to provide at its expense only the test it has chosen to make available as a second test; if the accused wishes either a third test or a second test that is not made available by the agency, the accused must pay for that and make those arrangements. Wis. Stat. § 343.305(5)(a).

¶ 28. A requirement that a request for an additional test must in all cases be made after taking the first test, even if an additional test was requested before the accused took the first test, serves neither the purpose of facilitating the gathering of evidence for the law enforcement agency nor the purpose of making an additional test available to verify or challenge the results of the first test. A request made after the first test is taken, rather than before, does not lighten the burden on the agency of providing the additional test it is required by law to make available; and it has the potential of diminishing the opportunity the legislature has chosen to make available to the accused to verify or challenge the results of the first test.

¶ 29. We also observe that Wis. Stat. § 343.305(4) requires the officer to read the Informing the Accused form "at the time the chemical specimen is requested," which means that the accused is told about the option of a second test before he or she takes the first test. Thus, it is logical that reading the form may prompt an accused to request an additional test before taking the one requested.

¶ 30. In concluding that it is more reasonable to construe Wis. Stat. § 343.305(5)(a) as not imposing a requirement that the request for an additional test be made after the first test is completed, we do not suggest that the timing of the request is irrelevant. An accused who requests an additional test before submitting to the first test and still wants an additional test after the first test is completed will likely repeat the request after the first test to make sure an additional test is administered. Certainly the absence of a request made after the first test is relevant to deciding as a factual matter whether the accused requested an additional test. However, there may be situations where an accused clearly requests an additional test before taking the first test, takes the first test, and then is prevented by circumstances, such as the absence of law enforcement personnel, from repeating to an officer the request for an additional test. The State’s proposed construction of the statute would eliminate the right to an additional test in this situation — a result that would be inconsistent with the legislature's purpose in establishing the opportunity for an additional test and would not further the purpose of facilitating the gathering of evidence by law enforcement.

¶ 31. Although we agree with Schmidt that Wis. Stat. § 343.305(5)(a) does not impose a timing requirement on the request for an additional test, we do not agree that he was therefore entitled to an additional test. The circuit court found that Schmidt repeatedly requested a breathalyzer test "rather" than a blood test: indeed, this was the wording of Schmidt's testimony as well as the officer's. The circuit court also found Schmidt did not request a breathalyzer test after he took the blood test. Based on these factual findings, we conclude as a matter of law that Schmidt did not request a test in addition to the blood test. The repeated requests Schmidt made before taking the blood test were for a breathalyzer test instead of the blood test, not in addition to the blood test; and, based on the circuit court's findings, Schmidt made no later request.

¶ 32. Because Schmidt did not request a test in addition to the blood test, the officer did not violate Wis. Stat. § 343.305(5)(a) by not giving him a breathalyzer test after the blood test. Therefore, although we have arrived at a different construction of the statute than did the circuit court, we affirm the circuit court's denial of Schmidt's motion to suppress the results of the blood test.

By the Court. — Judgment affirmed.

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

       Because of this conclusion, we do not address the State's argument that, even if Schmidt had made a proper request for an additional test, the officer's failure to administer an additional test does not entitle Schmidt to the remedy of suppression of the blood test results.

       The refusal to submit to a test is, in itself, grounds for penalties under Wis. Stat. § 343.305(9), including revocation of the person's operating privilege.

       In addition to distinguishing State v. Renard, 123 Wis. 2d 458, 460-61, 367 N.W.2d 237 (Ct. App. 1985), the court in State v. Piddington, 2001 WI 24, 241 Wis. 2d 754, 623 N.W.2d 528, distinguished McCrossen, 129 Wis. 2d 277, 281-82, 385 N.W.2d 161 (1986), in which the accused requested an additional test after seeing the results of the test the officer asked her to take. Piddington, 241 Wis. 2d 754, ¶¶ 50-51. (The court in McCros-sen held that the failure to provide an additional test in response to the accused's request did not violate due process and thereby require dismissal of the complaint; it also held that the circuit court properly excluded reference to the request for an additional test because it excluded evidence of the results of the test performed. 129 Wis. 2d at 280.) As in its reference to Renard, the Piddington court was describing the facts in McCrossen, not deciding that a request for an additional test is not valid unless made after the first test has been administered.

       The present version of Wis. Stat. § 343.305(4) was enacted by 1997 Wis. Act 107, § 1.

       Indeed, the form read to Schmidt required that he sign his agreement to take the blood test before it was administered, which he did.


author: CANE, C.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Miyosha K. White, Defendant-Appellant.
    Court of Appeals

      No. 04-1211-CR.

      Submitted on briefs November 1, 2004.

      Decided November 16, 2004.

    2004 WI App 237
    (Also reported in 690 N.W.2d 880.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Len Kaehinsky of Sisson & Kachinsky Law Offices, Appleton.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Lara M. Herman, assistant attorney general.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.
   CANE, C.J.

¶ 1. Miyosha White appeals a judgment of conviction for two counts of delivery of cocaine as party to a crime and an order creating a two-year waiting period before he is eligible for the Earned Release Program (ERP). White argues that the trial court erroneously exercised its discretion when it imposed the waiting period because the court had the statutory authority to determine whether White was eligible for ERR but not when he could become eligible. White argues more specifically that State v. Lehman, 2004 WI App 59, 270 Wis. 2d 695, 677 N.W.2d 644, rev. denied, 2004 WI 50, 271 Wis. 2d 111, 679 N.W.2d 546, is either not controlling in his case or was decided wrongly and, therefore, presents a question that should be certified to the supreme court.

¶ 2. Based on standard canons of statutory construction, we conclude that Wis. Stat. § 973.0l(3g), the ERP provision, and Wis. Stat. § 973.01(3m), the provision Lehman construed, are related by language, subject matter and function within the Truth-in-Sentencing law. Given that relation, we also conclude that Lehman requires us to determine that trial courts have the authority both to decide whether defendants are ERP eligible and to determine when the period of eligibility will begin. We therefore affirm the judgment and order.

Background

¶ 3. In August 2003, White was arrested and charged with two counts of delivery of cocaine as a party to crime. Less than a month before White's arrest, an informant known as "Q" approached the Door/Kewaunee County Drug Task Force with information that he could buy an "eight ball" — an eighth of an ounce of cocaine — from a man named Miyosha. Police officers helped manage and monitor that purchase. Several days later, "Q" arranged another buy, this time of two "eight balls." In both cases, White was identified by the police as the driver of the car that showed up at the purchase sites and by "Q" as one of the parties who delivered the drugs.

¶ 4. On November 26, 2003, the trial court accepted White's no contest pleas to two counts of delivery of cocaine as a party to a crime and found him guilty. At a later hearing, the court sentenced White to eighteen months' initial confinement and eighteen months' extended supervision on the first count of delivering one "eight ball" of cocaine. On the second count, White was sentenced to three years' initial confinement and four years' extended supervision, concurrent with the first sentence. The court declined to order White eligible for the Challenge Incarceration Program (CIP), popularly known as bootcamp, but did make him eligible for the Earned Release Program (ERP). The court added, however, that White would not become eligible for ERP until he had completed two years' initial confinement.

¶ 5. White filed a postconviction motion challenging the court's authority to impose a waiting period for ERE The trial court decided that Lehman was binding precedent and denied White's motion. White now appeals.

Discussion

¶ 6. Whether Wis. Stat. § 973.01(3g) authorizes the trial court both to determine eligibility for ERP and to decide when eligibility will begin is a question of law this court would ordinarily review de novo. See Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 978, 542 N.W.2d 148 (1996). To give effect to the legislature's intent, we would look to the plain language of the statute. State v. Corey J.G., 215 Wis. 2d 395, 411-12, 572 N.W.2d 845 (1998). If the statute's language was not clear on its face, we would consult the "scope, history, context, subject matter and object of the statute" to discover the legislative intent. See Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 652, 539 N.W.2d 98 (1995) ("The language of a statute is ambiguous if reasonably well informed individuals could differ about its meaning"); Village of Lannon v. Wood-Land Contractors, Inc., 2003 WI 150, ¶ 72, 267 Wis. 2d 158, 672 N.W.2d 275.

¶ 7. Here, however, we must first determine whether interpretation of Wis. Stat. § 973.01(3g), the ERP statute, is governed by Lehman, a decision of this court interpreting the nearly identical language of Wis. Stat. § 973.01(3m), the CIP statute. If Lehman controls the interpretation of both parts of § 973.01, we are constrained by our prior decision; this court does not have the power to overrule, modify, or withdraw any language from that opinion. Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). Despite its division into districts, the court of appeals functions as a unitary court and must speak with one voice. In re Court of Appeals, 82 Wis. 2d 369, 371, 263 N.W.2d 149 (1978). Even if we were to disagree with Lehman, we would thus be limited to signaling our disfavor rather than correcting any perceived error. Cook, 208 Wis. 2d at 190.

¶ 8. In Lehman, we were asked to decide whether the trial court had the statutory authority to impose a waiting period before a defendant became eligible for CIP We concluded that the language of Wis. Stat. § 973.01(3m) was ambiguous, see Lehman, 270 Wis. 2d 695, ¶ 11, because the provision, quoted in full below, was open to at least two incompatible yet reasonable interpretations:

Challenge Incahceration Program Eligibility. When imposing a bifurcated sentence under this section on a person convicted of a crime ... the court shall, as part of the exercise of its sentencing discretion, decide whether the person being sentenced is eligible or ineligible for the challenge incarceration program ... during the term of confinement in prison portion of the bifurcated sentence.

Wis. Stat. § 973.01(3m). We said defendant's argument, that the statute gave the trial court the authority only to decide whether felons were eligible for CIP was reasonable. Lehman, 270 Wis. 2d 695, ¶ 9. However, we also determined the state's argument, that references to discretion and term of confinement meant courts could determine when offenders became eligible, was reasonable as well. Id,., ¶ 10. Having found ambiguity in the statute, we sought the intent of the legislature in the history of the Truth-in-Sentencing law. Id., ¶¶ 11, 14-16. We finally determined that the legislative history revealed an intent to give greater discretion to judges imposing bifurcated sentences, an intention that was advanced by the state's broad interpretation of the CIP statute. Id., ¶ 17.

¶ 9. The question now before us is whether our reasoning in Lehman also controls the interpretation of the almost identical ERP statute, Wis. Stat. § 973.01(3g):

EaRned Release Program Eligibility. When imposing a bifurcated sentence under this section on a person convicted of a crime . .. the court shall, as part of the exercise of its sentencing discretion, decide whether the person being sentenced is eligible or ineligible to participate in the earned release program ... during the term of confinement in prison portion of the bifurcated sentence.

White argues that the trial court erroneously exercised its discretion when it treated Lehman as binding precedent, arguing that the language of the ERP statute is plain and unambiguous. White further argues that the relationship between the ERP statute and Wis. Stat. § 302.05(3), which sets out eligibility criteria for ERR makes it clear that the trial court's discretion extends only to granting or withholding eligibility from offenders who meet the statutory criteria. White thus essentially argues that we can avoid applying Lehman by concluding that nearly identical words, phrases and sentence structures, located in adjacent statutory provisions, can he read independently. We disagree.

¶ 10. As we have said elsewhere, in the absence of contrary evidence, language used in related statutes is intended to have the same meaning. See State v. Kirch, 222 Wis. 2d 598, 604-05, 587 N.W.2d 919 (Ct. App 1998). The supreme court has held that the language of one subsection of a statute should be construed in a way that makes it consistent with other subsections of the same statute. See State v. Williams, 198 Wis. 2d 479, 491, 544 N.W.2d 400 (1996). Finally, case law has long recognized that all parts of a statute should be construed to support the statute's overall purpose. See, e.g., Lukaszewicz v. Concrete Research, Inc., 43 Wis. 2d 335, 342, 168 N.W.2d 581 (1969). To the extent that the CIP and ERP provisions are linked by nearly identical language, similar subject matter and parallel function in the Truth-in-Sentencing scheme, they are related statutes whose meaning must be harmonized. Lehman's interpretation of the CIP provision and the overall purpose of the statute thus govern our construction of the ERP statute.

¶ 11. White argues in the alternative and rather more directly that Lehman was wrongly decided and we should certify his appeal to the supreme court to rectify that error. White contends that Lehman ignored prior case law that "clearly indicated that a court's sentencing powers derived solely from clear grants of authority by the legislature." According to White, Lehman's construction of the CIP statute thus usurped an area of decision-making that the legislature has delegated to the executive. We are not persuaded.

¶ 12. Many of the points White raises were addressed in Lehman: We recognize that reasonable minds might disagree over whether the contested language in Wis. Stat. § 973.01(3m) and (3g) is ambiguous, but this court has already spoken on the issue. If White wishes to challenge that determination, he must address his argument to the only court with the power to modify or overrule Lehman, the supreme court.

By the Court. — Judgment and order affirmed.

       The ERP provision was added to Wis. Stat. § 973.01 by 2003 Wis. Act 33 § 2749; it became effective on July 25,2003. All other references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       According to the trial court, it exercised its discretion in this way because it believed White was dealing drugs to make money, had turned his back on opportunities he had made for himself after leaving prison and was a threat to the community despite his "good intentions."

       This provision was also added by 2003 Wis. Act 33 § 2505, and also went into effect on July 25, 2003.

       The supreme court denied Lehman's petition for review in that case. See infra, ¶ 2.

       Petition for review denied 1-11-2005.