author: DYKMAN, J.

text:
    Rodney Dempich and Julie Dempich, Plaintiffs-Respondents-Cross-Appellants, v. Pekin Insurance Company, Defendant-Respondent-Cross-Respondent, State Farm Mutual Automobile Insurance Company, Defendant-Appellant-Cross-Respondent.
    Court of Appeals

      No. 2004AP1861.

      Submitted on briefs February 10, 2005.

      Decided January 26, 2006.

    2006 WI App 24
    (Also reported in 710 N.W.2d 691.)

      On behalf of the defendant-appellant-cross-respondent, the cause was submitted on the briefs of Thomas E. Goss, Jr. of Mueller, Goss & Possi, S.C., Milwaukee.
    On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the brief of Russell W Devitt and Teague D. Devitt of Soffa & Devitt, LLC, Whitewater.
    On behalf of the defendant-respondent-cross-respondent the cause was submitted on the brief of Susan R. Tyndall of CMT Legal Group, Ltd., Wauke-sha.
    Before Dykman, Deininger and Higginbotham, JJ.

       Petition to review denied 5-9-06.

   DYKMAN, J.

¶ 1. State Farm Mutual Automobile Insurance Company appeals from a summary judgment declaring it responsible for up to $90,475 in underin-sured motorist (UIM) coverage. The trial court determined that the reducing, anti-stacking and excess clauses of State Farm's secondary UIM coverage, taken together, were ambiguous within the context of the policy as a whole. We disagree and conclude that the anti-stacking and excess clauses of State Farm's insurance policy are contextually unambiguous and enforceable. Consequently, application of the anti-stacking and excess clauses leaves the Dempiches with no available UIM coverage under their State Farm policy. We therefore reverse the trial court's grant of summary judgment to the Dempiches and remand to the trial court to grant State Farm's summary judgment motion.

¶ 2. The Dempiches cross-appeal from the trial court's grant of summary judgment to Pekin Insurance Company. They contend they are entitled to recover under Pekin's primary UIM coverage because Pekin's reducing clause is contextually ambiguous. We conclude that Pekin's reducing clause is unambiguous within the context of the policy and is therefore enforceable. As applied here, the clause reduces the Dempiches' available UIM coverage under Pekin's policy to $0. We therefore affirm the grant of summary judgment to Pekin.

Background

¶ 3. The relevant facts are undisputed. Rodney Dempich was injured in a two-vehicle accident while operating a van owned by his employer, Godfrey Heating, Inc., in the course of his employment. The driver of the other vehicle, Jeffery Brown, had liability coverage of $50,000 per person with Heritage Insurance Company. Godfrey Heating had worker's compensation (WC) insurance with Pekin Insurance Company, which also provided Godfrey Heating with $100,000 per person and $300,000 per accident UIM coverage. Pekin's UIM policy contained a reducing clause and an "other insurance" provision. Dempich also had $100,000 per person and $300,000 per accident UIM coverage from a State Farm policy his wife, Julie Dempich, carried on her vehicle. This policy contained a reducing clause and an "other insurance" provision as well. We provide the relevant language of these policies in the discussion section.

¶ 4. According to the trial court's decision, Rodney Dempich received approximately $77,000 in WC benefits from his employer's WC policy written by Pekin. The Dempiches settled with Brown's insurer, Heritage, for its policy limit of $50,000. The Dempiches reimbursed Pekin $17,524 for WC it had already paid, in accordance with Wis. Stat. § 102.29 (2003-04). Thus, by the trial court's calculations, the total of the payments the Dempiches collected from Pekin and Heritage less their reimbursement to Pekin left the Dempiches with a net recovery of $109,476.

¶ 5. Rodney Dempich filed separate UIM claims with Pekin and State Farm for the $100,000 UIM limit, provided by each policy. Both companies denied coverage. Pekin's denial was based on its policy's reducing clause because the Dempiches' net recovery exceeded Pekin's $100,000 UIM limit. State Farm denied coverage because its UIM coverage was secondary and would pay only the amount by which its limits exceeded the UIM limits of the primary carrier, Pekin. Because State Farm's UIM limit was $100,000 per person — the same as Pekin's UIM limit — State Farm concluded that the Dempiches were not entitled to recover under its UIM coverage.

¶ 6. The Dempiches sued for declaratory relief. They moved for summary judgment, requesting a declaration that Pekin and State Farm were each liable to them for the $100,000 UIM limits of their respective policies. State Farm also moved for summary judgment, requesting a declaration that the Dempiches were not entitled to recover under the UIM coverage of its policy.

¶ 7. The circuit court denied the Dempiches' motion as to Pekin and granted Pekin summary judgment. The court determined that Pekin's reducing clause was unambiguous alone and within the context of the policy and served to deny the Dempiches recovery under the UIM coverage part. The court granted the Dempiches' summary judgment motion against State Farm and therefore denied State Farm's motion. The court determined that the Dempiches were entitled to a maximum recovery of $90,475 under the UIM coverage part of State Farm's policy. The court concluded that, standing alone, the UIM coverage's reducing clause, and the excess and anti-stacking clauses of the "other insurance" section of the State Farm policy, were unambiguous and that each plainly denied the Dempiches UIM recovery. However, the court determined that, within the context of the entire policy, the reducing, excess and anti-stacking clauses together were ambiguous. State Farm appeals, and the Dempiches cross-appeal.

Discussion

¶ 8. Under Wis. Stat. § 802.08(2), summary judgment is appropriate when the affidavits and other offers of proof "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." When reviewing the grant or denial of a summary judgment motion, we apply the standards set forth in § 802.08 in the same manner as the trial court. Voss v. Middleton, 162 Wis. 2d 737, 748, 470 N.W.2d 625 (1991).

¶ 9. The interpretation of an insurance contract presents a question of law that is reviewed de novo. Folkman v. Quamme, 2003 WI 116, ¶ 12, 264 Wis. 2d 617, 665 N.W.2d 857. "[T]he first issue in construing an insurance policy is to determine whether an ambiguity exists regarding the disputed coverage issue." Id., ¶ 13. If a provision of an insurance policy is ambiguous with regard to a coverage dispute, we will construe that provision in favor of the insured. Folkman, 264 Wis. 2d 617, ¶ 13.

¶ 10. The supreme court has recognized that a provision unambiguous on its own may be ambiguous within the context of the policy as a whole. See, e.g. Taylor v. Greatway Insurance Co., 2001 WI 93, ¶ 27, 245 Wis. 2d 134, 628 N.W.2d 916. Contextual ambiguity is present if a provision, when read in light of the policy's other language, is reasonably susceptible to more than one interpretation. Folkman, 264 Wis. 2d 617, ¶ 28. "To prevent contextual ambiguity, a policy should avoid inconsistent provisions, provisions that build up false expectations, and provisions that produce reasonable alternat[e] meanings." Id., ¶ 31. On appeal and cross-appeal, the Dempiches do not assert that the relevant provisions of State Farm's or Pekin's UIM policies are ambiguous when considered separately. They allege only that the insurers' UIM coverages are contextually ambiguous.

Pekin's UIM Coverage

¶ 11. The Dempiches contend that Pekin's UIM reducing clause is ambiguous within the context of the policy as a whole. The UIM coverage section is contained in two endorsements to the policy. The first endorsement, entitled "WISCONSIN UNDERIN-SURED MOTORIST COVERAGE," contains the following reducing language:

D. LIMIT OF INSURANCE
1. [T]he most we will pay for all damages resulting from any one "accident" is the LIMIT OF INSURANCE for UNDERINSURED MOTORISTS COVERAGE shown in the Schedule or Declarations.
3. The Limit of Insurance under this coverage shall be reduced by:
a. All sums paid or payable under any workers' compensation, disability benefits or similar law, and
b. All sums paid by or for anyone who is legally responsible, including all sums paid under this Coverage Form's LIABILITY COVERAGE.

A second brief endorsement, entitled "WISCONSIN SPLIT UNDERINSURED MOTORISTS COVERAGE LIMITS," states that it replaces Paragraph 1. of Section D. of the endorsement (cited above) with the following:

1. Regardless of the number of covered "autos," "insureds," claims made, premiums paid or vehicles involved in the "accident," the limit of insurance is as follows:
a. The most we will pay for all damages resulting from "bodily injury" to any one person caused by any one "accident," including all damages claimed by any person or organization for care, loss of services or death resulting from the "bodily injury," is the limit of "Bodily Injury" shown in the Schedule for each person.
b. Subject to the limit for "each person," the most we will pay for all damages resulting from "bodily injury" caused by any one "accident" is the limit shown in the Schedule for "each accident."
c. If coverage for "property damage" is provided by this insurance, the most we will pay for all damages resulting from "property damage" caused by any one "accident" is the limit of "property damage" shown in the Schedule for each "accident."

¶ 12. The Dempiches assert that Pekin's policy is similar to the policy we found to be ambiguous in Dowhower v. Marquez, 2004 WI App 3, 268 Wis. 2d 823, 674 N.W.2d 906 (Dowhower III). They argue that, like the Dowhower III policy, Pekin's policy: (1) does not mention on its declarations page that its UIM coverage is subject to a reducing clause, Dowhower III, 268 Wis. 2d 823, ¶ 20; (2) does not in its table of contents list underinsured motorist coverage or alert the insured to the existence of endorsements to the policy, id., ¶ 22; (3) does not define "reducing clause," "endorsements" or "underinsured motorist," id., ¶ 23; (4) does not explain what affect endorsements may have on coverage, id., ¶ 21; (5) confuses uninsured and underinsured coverage parts, titling Part VI in the body of the policy "UNINSURED MOTORISTS INSURANCE (INCLUDING UNDERINSURED MOTORIST") without using the word underinsured again in the section or noting that the coverage is subject to a reducing clause, id., ¶ 21; and (6) is too organizationally complex for a reasonable insured to navigate, id., ¶ 28.

¶ 13. The Dempiches also note that the first two endorsements to the policy, neither of which pertain to UIM coverage, do not appear on the declarations page. Only after the body of the policy and four pages of endorsements does the policy address UIM coverage. They further note that the "LIMIT OF INSURANCE" section of the "WISCONSIN UNDERINSURED MOTORIST COVERAGE" states that "the most we will pay for all damages resulting from any one 'accident' is the LIMIT OF INSURANCE for UNDERINSURED MOTORISTS COVERAGE shown in the Schedule or Declarations." They assert that this language is misleading because rarely would Pekin ever pay the full "limit of insurance" by virtue of the reducing clause. In sum, they contend that, as in Dowhower III, the Pekin policy's "inadequate and misleading organization, labeling and explanations make it nearly impossible for a reasonable insured to locate, let alone comprehend the extent of, his or her UIM coverage." Dowhower III, 268 Wis. 2d 823, ¶ 29. Though Pekin's policy is far from ideal, we disagree.

¶ 14. Unlike Dowhower III, Pekin's declarations page is a serviceable road map to the policy. Underin-sured motorist coverage has its own line in the "coverages" section, instead of being subsumed by the line item for uninsured motorist coverage as it was in Dowhower III, 268 Wis. 2d 823, ¶ 20. Moreover, contrary to the Dowhower III policy, the insured is made aware of the existence of endorsements to the policy on the declarations page in a separate section entitled "policy endorsements." Listed there are endorsements for "WISCONSIN UNDERINSURED MOTORISTS COVERAGE" and "WISCONSIN SPLIT UNDERIN-SURED MOTORISTS COVERAGE." As the Dempiches assert, the UIM coverage part does not appear on the table of contents. However, neither do other endorsements to the policy. More importantly, the endorsement for UIM coverage is referenced on the declarations page, "the most crucial section of the policy for the typical insured." Folkman, 264 Wis. 2d 617, ¶ 37 (citing Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73, 236 Wis. 2d 113, 613 N.W.2d 557 (Bradley, J., concurring) (Dowhower I)).

¶ 15. Ideally, the declarations page might alert the insured to the existence and effect of a reducing clause. In addition, we note that the failure to list the first two endorsements on the declarations page is a bit disconcerting. However, Folkman states that our role is not to set "aspirational goals" or "demand perfection" in draftsmanship, but to determine if a policy as written is susceptible to more than one reasonable interpretation. Folkman, 264 Wis. 2d 617, ¶ 29-30. We conclude that this policy is not susceptible to multiple reasonable interpretations.

¶ 16. The listing of endorsements for UIM coverage on the declarations page is sufficient to alert an insured to the presence of policy amendments that are relevant to the insured's UIM benefit. The UIM endorsements state at the top and in bold: "THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY." The reducing language contained in the endorsements is unambiguous. We disagree with the Dempiches' view that paragraph 1. of "LIMITS OF INSURANCE" sets unreasonable expectations for the insured. Paragraph 3. of the same section states that "[t]he Limit of Insurance under this coverage shall be reduced by" (emphasis added) and lists types of payments that would reduce the amount paid under the UIM coverage. More importantly, paragraph 1. itself is replaced by the unambiguous reducing language of the next endorsement, which, as noted, is referenced on the declarations page. Finally, contrary to the Dempiches' assertions, failure to define the word "endorsement" does not render a policy ambiguous. See Van Erden v. Sobczak, 2004 WI App 40, ¶ 18, 271 Wis. 2d 163, 677 N.W.2d 718 ("[T]he meaning of the word 'endorsement' in the insurance context is well-known."). For the foregoing reasons, we conclude Pekin's UIM reducing clause is not contextually ambiguous and thus is enforceable. Here, because Pekin may apply all of the $109,476 paid to the Dempiches to reduce its UIM liability, and this amount exceeds the policy's $100,000 UIM limit, their UIM liability to the Dempiches is reduced to $0. We therefore affirm the circuit court's grant of summary judgment to Pekin.

State Farm's UIM Coverage

¶ 17. It is undisputed that State Farm's policy is secondary or excess to Pekin's policy in this case because Rodney Dempich was operating a vehicle insured by Pekin at the time of the accident. State Farm emphasizes that its UIM coverage is not "umbrella" coverage, but a primary coverage that, in certain circumstances like those here, becomes secondary. State Farm contends that its UIM coverage is not contextually ambiguous, and that it therefore should be able to fully apply its reducing, excess and anti-stacking provisions. The Dempiches contend that the reducing, excess and anti-stacking clauses each give rise to contextual ambiguity. Because State Farm's policy is secondary to Pekin's, we examine first State Farm's excess and anti-stacking clauses.

A. Anti-Stacking and Excess Clauses

¶ 18. State Farm's "other insurance" provision, which contains its excess and anti-stacking clauses, states:

Regardless of the number of policies involved, vehicles involved, persons covered, claims made, ve-hides insured, or premiums paid, the limits for under-insured motor vehide coverage under this policy may not be added to the limits for similar coverage applying to other motor vehicles to determine the limits of underinsured motor vehicle coverage available for bodily injury suffered by an insured in any one accident.
Subject to the above:
2. If the insured sustains bodily injury while occupying a vehicle not owned or leased by you, your spouse, or your relative who resides primarily in your household, then this coverage applies:
a. as excess to any underinsured motor vehicle coverage which applies to the vehicle or driver as primary coverage; but
b. only in the amount by which it exceeds the primary coverage.

¶ 19. The Dempiches assert that both State Farm's excess and anti-stacking clauses are contextually ambiguous. They contend the anti-stacking clause is ambiguous because it does not clearly state whether it prevents State Farm's limits from being added to a second UIM policy's limits even when, as here, the second insurer has not paid its limits or any portion thereof. We conclude that whether the second insurer has paid is irrelevant under the language of the policy.

¶ 20. In Estate of Dorschner v. State Farm Mut. Auto Ins. Co., 2001 WI App 117, 244 Wis. 2d 261, 628 N.W.2d 414, we found unambiguous an anti-stacking provision of a UM policy that is identical to the anti-stacking clause here. The controlling facts of Dorschner resemble those of the present case. Dorschner was killed while riding as a passenger in a car operated by a relative who had $100,000 per person/$300,000 per accident UM coverage through Economy Insurance. Id., ¶ 2. Dorschner had $50,000 of UM coverage through State Farm for his own vehicle, and his estate attempted to collect the limit of his policy. Id.

¶ 21. The circuit court in Dorschner determined that an anti-stacking clause of State Farm's policy prevented Dorschner from collecting on the UM coverage, and we affirmed. Significantly, the language of the anti-stacking clause in Dorschner is identical to the anti-stacking clause here. This language "tracks verbatim the language of [Wis. Stat.] § 632.32(5)(f) which authorizes such provisions." Id., ¶ 12. We recognize that verisimilitude between the statute and the policy language does not end our inquiry. See Badger Mutual Ins. Co. v. Schmitz, 2002 WI 98, ¶¶ 61, 75, 255 Wis. 2d 61, 647 N.W.2d 223. However, we conclude that in the present case this language is unambiguous when viewed in light of the entire policy.

¶ 22. The Dempiches' alternate interpretation of the contract is unreasonable. The contract language plainly refers to "the limits of [UIM] coverage available" without regard to whether the limits of another primary policy are paid. The Dempiches appear to suggest that for the anti-stacking clause to be unambiguous it must state that it is applicable "whether these limits are paid or not." However, our role is to "assessü whether a policy, as written, is ambiguous in context" and not to require insurers "to undertake affirmative, explanatory responsibilities in drafting policies." Folkman, 264 Wis. 2d 617, ¶ 30. Because we conclude that the anti-stacking clause lends itself to only one reasonable interpretation when applied to this case, it may be enforced to prevent the Dempiches from adding the limits of the State Farm policy to the limits of Pekin's policy.

¶ 23. Similarly, the Dempiches contend the excess clause is contextually ambiguous, asserting that the clause may be read to apply only when the insured has received payment from the primary UIM insurer. They cite Janssen v. State Farm Mut. Auto Ins. Co., 2003 WI App 183, 266 Wis. 2d 430, 668 N.W.2d 820 (Janssen II), where we construed a State Farm excess clause identical to the policy here to be ambiguous as applied in that case.

¶ 24. The Dempiches reliance on Janssen II is misplaced. There, no primary insurer was present, and the policy stated that the excess coverage was "only for the amount by which it exceeds the primary coverage." Janssen II, 266 Wis. 2d 430, ¶ 12. We concluded that this language was ambiguous where there was no primary coverage to which the State Farm policy could be excess. Id. Moreover, Janssen II distinguished Dor-schner because in Dorschner, as here, primary coverage was present. Id., ¶ 10. Finally, we agree with State Farm that its excess clause does not provide "true excess" or umbrella coverage, i.e., the type of coverage designed to provide "security and peace of mind" to the purchaser which "cover[s] losses that exceed the basic or usual limits of liability provided by other insurance policies." Black's Law Dictionary (7th ed. 801).

¶ 25. Again, we reject the Dempiches' view that the policy is susceptible to a reading that the primary insurer must actually pay to the limit of its coverage before the excess clause will take effect. Here, as in Dorschner, the application of the anti-stacking and excess clauses results in the plaintiffs receiving the "highest coverage available under any single policy, which is exactly what [State Farm's policy] promised to do." Dorschner, 244 Wis. 2d 261, ¶ 13. State Farm's excess clause, like its anti-stacking clause, makes no reference to payments, but merely describes when the policy is excess and how its coverage is affected by the primary coverage. A reasonable insured would not conclude that payment from the primary insurer would be necessary for this excess clause to take effect. Accordingly, we conclude the excess clause, like the anti-stacking clause, is unambiguous in the present context and therefore enforceable.

¶ 26. In review, State Farm's and Pekin's policies each provide $100,000 per person UIM coverage, and State Farm's excess clause states that its coverage applies "only in the amount by which it exceeds the primary coverage." Because the amount of State Farm's coverage limit does not exceed Pekin's primary coverage limit, its liability to the Dempiches as the excess UIM insurer is $0.

B. Reducing Clause and the Trial Court's Conclusion

¶ 27. State Farm's reducing language provides:

1. The amount of coverage is shown on the declarations page under "Limits of Liability — W—Each Person, Each Accident." Under "Each Person" is the amount of coverage for all damages due to bodily injury to one person. "Bodily injury to one person" includes all injury and damages to others resulting from this bodily injury. Under "Each Accident" is the total amount of coverage, subject to the amount shown under "Each Person", for all damages due to bodily injury to two or more persons in the same accident.
2. The most we will pay is the lesser of:
a. the limits of liability of this coverage reduced by any of the following that apply:
(1) the amount paid to the insured by or on behalf of any person or organization that may be legally responsible for the bodily injury, or
(2) the amount paid or payable under any workers' compensation or disability benefits law; or
b. the amount of coverage sustained, but not recovered.

¶ 28. As we have noted, the trial court concluded that the reducing, anti-stacking and excess clauses, when considered separately, were each unambiguous in the context of the policy. However, the court then determined that, when taken together, the clauses

effectuate illusory coverage of $100,000 per person in this case, regardless of the clarity of those clauses by themselves. The Court concludes a reasonable insured reading State Farm's policy would not understand that notwithstanding the anti-stacking clause, when injured occupying another person's vehicle having UIM coverage, payments received from others legally responsible, would be counted once to reduce the coverage of the primary UIM insurer, and counted again to reduce the insured's own secondary UIM coverage with State Farm. Under State Farm's policy as written, Mr. Dempich's $100,000 UIM coverage under two policies would be reduced to zero twice from the same recovery of $109,476 received from others legally responsible. In this circumstance, the Court concludes State Farm's UIM $100,000 per person secondary coverage, is deceptive and ambiguous in the context of the whole policy, because the possibility of such $0 secondary coverage is not clearly stated. [Citations omitted.]

¶ 29. The Dempiches contend that State Farm's UIM reducing clause is ambiguous within the context of the policy. State Farm disputes this, but first contends that because their anti-stacking and excess clauses are enforceable (as we have concluded) and prevent the Dempiches from recovering under their State Farm UIM coverage, the clarity or ambiguity of its reducing clause is irrelevant here. They argue that, after determining the scope of the secondary coverage defined by the anti-stacking and excess clauses, a reasonable insured would conclude that there is no available UIM coverage to reduce. We agree with State Farm.

¶ 30. The trial court determined that "notwithstanding the anti-stacking clause" a reasonable insured would not understand that the Dempiches' liability and worker's compensation recovery would be "counted twice" by the reducing clauses of Pekin's and State Farm's policies, respectively, to reduce State Farm's secondary UIM coverage to $0. We believe the trial court's analysis unnecessarily added the reducing clause into the mix. Rather, we conclude that a reasonable insured would not consider the policy apart from the anti-stacking and excess clauses, and would consequently apply their unambiguous terms to conclude that no UIM coverage was available under State Farm's secondary policy. Under the circumstances of this case, the anti-stacking and excess clauses, not the reducing clause, define the extent of available UIM coverage under State Farm's policy. Moreover, State Farm is not required to clearly state the possibility of $0 secondary coverage to avoid ambiguity. See Folkman, 264 Wis. 2d 617, ¶ 30.

¶ 31. Further, we note that holding liable the secondary UIM insurer, State Farm, would be a strange result in this case. As State Farm observes, the trial court's decision put it in a worse position than if it had been the primary insurer. While the trial court concluded that both Pekin's and State Farm's reducing clauses were unambiguous, it determined that State Farm, as the secondary insurer, had a special obligation to "clearly state[]" "the possibility of. . . $0 secondary coverage." Because State Farm failed to state this possibility, the trial court concluded State Farm was liable where Pekin, the primary insurer, was not, by virtue of being the second insurer in line to "count" the Dempiches' recovered damages under its reducing clause. This would appear to be a curious result.

¶ 32. We conclude that State Farm's anti-stacking and excess clauses are unambiguous in the context of the policy. Thus, these clauses are enforceable and, as applied here, prevent the Dempiches from recovering under State Farm's secondary UIM coverage. Accordingly, we reverse the trial court's grant of summary judgment to the Dempiches against State Farm, and direct the trial court to grant State Farm summary judgment. We affirm the trial court's grant of summary judgment to Pekin.

By the Court. — Judgment affirmed in part, reversed in part and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       As provided by Wis. Stat. § 632.32(5)(i), a reducing clause is a provision of an insurance contract that reduces the limits of a policy by amounts paid or payable from other sources. The statute states:
      A policy may provide that the limits under the policy for uninsured or underinsured motorists coverage for bodily injury or death resulting from any one accident shall be reduced by any of the following that apply:
      1. Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made.
      2. Amounts paid or payable under any worker's compensation law.
      3.Amounts paid or payable under any disability benefits laws.

       Authorized by Wis. Stat. § 632.32(5) (f), an anti-stacking clause provides that when other insurance is present, the policy's limits will not be added to the policy limits of the other insurance. The statute states:
      A policy may provide that regardless of the number of policies involved, vehicles involved, persons covered, claims made, vehicles or premiums shown on the policy or premiums paid the limits for any coverage under the policy may not he added to the limits for similar coverage applying to other motor vehicles to determine the limit of insurance coverage available for bodily injury or death suffered by a person in any one accident.


source: Caselaw Access Project

license: Public Domain

text:
    Lake Country Racquet and Athletic Club, Inc., De-Le of Green Bay, Inc., Bluemound Land Partnership, LLP, Glen Park Associates and Wisconsin Athletic Club, Inc., Plaintiffs-Appellants, v. Michael L. Morgan Secretary of Revenue and Wisconsin Department of Revenue, Defendants-Respondents, YMCA of Metropolitan Milwaukee, Inc., Waukesha Family YMCA, Oconomowoc Town and Country YMCA and Greater Green Bay YMCA, Inc., Intervenors-Defendants-Respondents.
    Court of Appeals

      No. 2004AP3061.

      Submitted on briefs May 23, 2005.

      Decided January 26, 2006.

      2006 WI App 25
    (Also reported in 710 N.W.2d 701.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Robert L. Gordon of Michael Best & Friedrich LLP, Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Thomas C. Bellavia, assistant attorney general, and Peggy A. Lauten-schlager, attorney general.
    On behalf of the intervenors-defendants-respondents, the cause was submitted on the brief of Timothy C. Frautschi, Rebecca E. Wickhem and Patrick M. Kuhlmann of Foley & Lardner, LLP, of Milwaukee.
    Before Dykman, Vergeront and Higginbotham, JJ.
   DYKMAN, J.

¶ 1. Lake Country Racquet and Athletic Club, Inc., and four other for-profit health clubs (collectively "Lake Country") appeal from a partial summary judgment and a summary judgment dismissing their constitutional challenges to the portion of Wis. Stat. § 70.11(12)(a) (2003-2004) exempting from taxation property owned by Young Men's Christian Associations (YMCAs). Lake Country contends these provisions violate the ban on private legislation in article IY section 18 of the Wisconsin Constitution and the equal protection guarantees of the state and federal constitutions. We reject both of these challenges and affirm.

Background

¶ 2. The following facts are taken from the parties' affidavits and other materials. There are thirty YMCAs in thirty different communities in Wisconsin. Each is a separately incorporated non-profit organization, and all belong to the National Council of Young Men's Christian Associations of America (YMCA-USA). Article II, section 2(a) of the YMCA-USA Constitution provides that to maintain membership in the YMCA-USA, local YMCAs must accept the following statement of purpose: "The Young Men's Christian Association we regard as being in its essential genius a worldwide fellowship united by a common loyalty to Jesus Christ for the purpose of developing Christian personality and building a Christian society." The Constitution's preamble states that a goal of the YMCA-USA is "[t]o appreciate that health of mind and body is a sacred gift and that physical fitness and mental well-being are conditions to be achieved and maintained." Accordingly, YMCAs maintain fitness centers that offer the same types of facilities as for-profit health clubs.

¶ 3. In addition, the various YMCAs in Wisconsin offer many different types of community programming. From the YMCAs' submissions, these include: programs for persons with special needs; swimming lessons; child care services; leadership development programs for teens; after- and before-school care; fitness and social activities for seniors; pre-school programs; mentoring programs; and civic education programs for youths. YMCAs also provide financial assistance to many qualifying program participants based on financial need.

¶ 4. Prior to adoption of the 2001 Budget Bill, the property tax status of YMCAs was determined by local tax assessors' evaluation of their benevolent status under Wis. Stat. § 70.11(4) (1999-2000). Historically, individual assessors had exempted local YMCAs from property taxes under this statute.

¶ 5. In late 1999, YMCAs in La Crosse, Wausau and Milwaukee were put on notice that local assessors would be re-examining their tax-exempt status. Collectively, state YMCAs sought legislative action to remove from local assessors the responsibility to determine local YMCAs' tax status and establish a statutory exemption for all YMCAs. In early 2001, companion bills were introduced in the Senate and Assembly adding YMCAs to the list of national benevolent organizations exempted from property taxation under Wis. Stat. § 70.11(12)(a). That spring, the Joint Finance Committee voted to add the YMCA exemption as an amendment to the 2001 Budget Bill. 2001 SB 55, May 16, 2001 executive session, Motion 123. The YMCA exemption was adopted by the legislature as a part of the Budget Bill and signed into law by the governor in August 2001. 2001 Wis. Act 16, §§ 2103g and 2103k.

Additional facts about the legislature's consideration of the bill will be set forth in the analysis.

¶ 6. Lake Country sued to challenge the constitutionality of the YMCA exemption on multiple grounds. The court permitted four YMCAs to intervene as defendants to the suit. Lake Country moved for judgment on the pleadings on its claim that the statute was prohibited "private legislation" under article iy section 18. Its motion for judgment on the pleadings included the legislative history of the bill. The YMCAs also moved for partial summary judgment on the private legislation claim. The court construed Lake Country's motion as a motion for partial summary judgment. The court denied Lake Country's motion and granted the YMCAs' partial summary judgment motion. Lake Country then moved for summary judgment on the remaining claims, and the State and YMCAs cross-moved for summary judgment. The court denied Lake Country's motion and granted the State and YMCAs' motion for summary judgment. Lake Country appeals.

Analysis

¶ 7. We review a circuit court's grant of summary judgment de novo, applying the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment is appropriate when there is no material factual dispute and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).

¶ 8. Lake Country alleges Wis. Stat. § 70.11(12)(a) is constitutionally infirm on four separate grounds, which we address in turn. A challenge to the constitutionality of a statute is a question of law subject to de novo review. Nankin v. Village of Shorewood, 2001 WI 92, ¶ 10, 245 Wis. 2d 86, 630 N.W.2d 141.

A. Article IV, section 18 of the Wisconsin Constitution

¶ 9. Lake Country contends Wis. Stat. § 70.11(12)(a) violates the state constitution's prohibition on private legislation. Article IY section 18 of the Wisconsin Constitution provides that "[n]o private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title." A purpose of article IY section 18 is to "guard against the danger of legislation, affecting private or local interests, being smuggled through the legislature." Davis v. Grover, 166 Wis. 2d 501, 519, 480 N.W.2d 460 (1992) (citation omitted). Section 18 also protects against "internal logrolling," the legislative practice of bundling several unrelated issues, none of which could be passed singly, and securing passage by a combination of the legislative factions who favor separate pieces of the legislation. Id. at 519, n.7 (citation omitted).

¶ 10. When deciding a challenge to legislation under article IY section 18, we employ a two-part analysis. Davis, 166 Wis. 2d at 520. First, we must determine whether the process used by the legislature was adequate to entitle the bill to the presumption of constitutionality usually afforded legislative enactments. Id. Second, we must decide whether the legislation is private and/or local and, if so, whether it violates the single-subject, clear-title requirements of section 18. Id.

1. Presumption of Constitutionality

¶ 11. An article iy section 18 challenge to a legislative enactment attacks the propriety of the process used by the legislature to adopt the legislation. See Brookfield v. Milwaukee Sewerage, 144 Wis. 2d 896, 912 n.5, 426 N.W.2d 591 (1988). For this reason, courts will not afford legislation challenged on these grounds a presumption of constitutionality unless the record shows that the legislature adequately considered the legislation in question. City of Oak Creek v. Department of Natural Resources, 185 Wis. 2d 424, 437, 518 N.W.2d 276 (Ct. App. 1994). To "indulge in a presumption of constitutionality" in a challenge under article VI, section 18 without first determining that the legislature fully considered the proposal "would make a mockery of [section 18's] procedural constitutional requirement." Brookfield, 144 Wis. 2d at 912 n.5. However, if it is determined that the "legislation [was] passed after full consideration," the presumption of constitutionality should be applied so as not to "err ... by substituting our judgment for that of an attentive legislature." Id. at 918 n.6.

¶ 12. The parties dispute which facts may be considered when determining if a measure was "adequately considered." Lake Country cites the Davis explanation that a section 18 challenge concerns only the "form in which the legislation is enacted," contending that this means that we may consider only the legislative history of the bill. The State and YMCAs respond that we may also consider press coverage and lobbying efforts pertaining to the bill because these are relevant to whether the bill was "smuggled" through the legislature. Accordingly, they cite evidence of frequent legislative contacts and media advertising by groups supporting and opposing the measure, as well as press reports.

¶ 13. As we noted earlier in note 6, Lake Country concedes that the State's submissions in response to Lake Country's motion are relevant to the issue of whether the bill was adequately considered. It is on these submissions alone that we conclude that the legislature adequately considered the measure. We therefore need not decide here precisely which types of evidence are permissible under Davis.

¶ 14. We turn now to the facts of the legislature's consideration of the bill taken from the submissions of the State and Lake Country. On March 1, 2001, Representative John Gard circulated a request for legislative co-sponsors to a single-subject bill exempting from taxation property of YMCAs. The request included a Legislative Reference Bureau analysis of the proposal. Opponents of the legislation, including representatives of the Wisconsin Merchants Federation and the Alliance of Cities, circulated a two-page memo to all legislators explaining their reasons for opposing the bill. In response, Representative Gard and the bill's co-author, Senator Gary George, sent a letter to all legislators countering the arguments made in the opponents' memo.

¶ 15. On March 20, 2001, and March 26, 2001, identical bills exempting YMCAs from property taxation were introduced in the Senate and Assembly. Sixty-one of the Assembly's ninety-nine members and thirteen of the Senate's thirty-three members cosponsored at least one of the companion bills.

¶ 16. During April 2001, the Legislature's Joint Finance Committee held six public hearings at various locations around the state on the 2001 State Budget Bill. In apparent anticipation that the YMCA exemption might be added to the Budget Bill, supporters and opponents of the YMCA exemption testified and/or registered their views at each hearing.

¶ 17. On May 9, 2001, the Assembly Ways and Means Committee held a public hearing on Assembly Bill 250. YMCA representatives testified in favor of the legislation, and several representatives of private health clubs, business associations and local government associations spoke in opposition.

¶ 18. During a May 16, 2001 executive session, the Joint Finance Committee approved two motions incorporating the proposed YMCA exemption into the Budget Bill. Among those voting for the YMCA exemption amendment were four senators who had not cosponsored Assembly Bill 250 or Senate Bill 98. On June 18, 2001, sections 2103g and 2103k were submitted to the legislature as a part of the amended Budget Bill. See Senate Substitute Amendment 1 to 2001 Senate Bill 55. On August 30, 2001, the two sections were enacted into law without further change as a part of 2001 Wisconsin Act 16.

¶ 19. We conclude that this record demonstrates that the legislature adequately considered the legislation for purposes of article I\£ section 18. Most significantly, a majority of the members of the Assembly co-sponsored a single-subject bill exempting YMCAs from property taxation before the measure was added to the Budget Bill. Similarly, a majority of senators either co-sponsored the stand-alone bill (thirteen) or considered and voted for the proposal as members of the Joint Finance Committee (four). We presume that a legislator who sponsors a bill has adequately considered the proposal. Likewise, we apply the same presumption to a committee member who votes to recommend a proposal to the full legislature. Because a majority of the members of both houses adequately considered the measure, we conclude that, collectively, the legislature gave adequate consideration to the bill.

¶ 20. Additionally, we note that all legislators were informed via memo by the bill's supporters and opponents of the policy reasons to oppose or support the bill. At budget hearings around the state, and at a hearing devoted to Assembly Bill 250, members of the public voiced their concerns about the YMCA exemption. We share the state supreme court's concern that multi-subject bills such as the biennial state budget "by their nature are subject to a greater susceptibility of smuggling and logrolling." Davis, 166 Wis. 2d at 519. However, "the fact that a multi-subject bill contains a program such as [the YMCA exemption] does not necessarily condemn the process in which the program was enacted as unconstitutional." Id. at 520. We therefore conclude that the legislature adequately considered the bill and, thus, that the bill is entitled to a presumption of constitutionality.

¶ 21. Lake Country correctly observes that a report on the YMCA exemption was not obtained from the Joint Survey Committee, as required by Wis. Stat. § 13.52(6) Lake Country calls this rule "[the legislature's] own statutory requirement for intelligent participation in tax exemption legislation." We disagree. The failure of the legislature to follow its own, non-constitutionally mandated operating rules does not provide an independent basis to declare a statute unconstitutional. State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 365, 338 N.W.2d 684 (1983). As the State notes, the "adequate consideration" rule is a judicial creation, and the legislature's statutory requirements do not define this standard. Instead, the issue of whether the legislature has adequately considered a measure depends on the unique circumstances of the legislature's consideration of the bill and may take into account many factors. See Davis, 166 Wis. 2d at 522-23.

2. Private Legislation

¶ 22. We turn to whether the statute is prohibited private legislation. We have noted that the proposal was not adopted as a single-subject bill, but as a part of the multi-subject Budget Bill. Article section 18 prohibits private legislation which is not approved as a single-subject bill. Therefore, the only question for us to resolve is whether the proposal is, in fact, private legislation. Because we have determined that the bill is entitled to a presumption of constitutionality, Lake Country bears the burden of proving the statute is private legislation beyond a reasonable doubt. See Davis, 166 Wis. 2d at 524.

¶ 23. Courts apply one of two tests when determining whether a bill is private legislation, depending on whether the bill is "specific to any person, place or thing" or is instead based on "classifications." Davis, 166 Wis. 2d at 524-25. Lake Country argues, and the State concedes, that the YMCA exemption is "specific" in nature. To pass muster under article iy section 18, "specific" legislation must: (1) in its "general subject matter relate [] to a state responsibility of statewide dimension; and (2) [in] its enactment... have a direct and immediate effect on a specific statewide concern or interest." Milwaukee Brewers Baseball Club v. Wisconsin Dep't of Health and Social Servs., 130 Wis. 2d 79, 115, 387 N.W.2d 254 (1986). To appeal to a specific concern, the bill must be enacted for a purpose more particular than generic legislative concerns such as safety, health, welfare, morals and security. Id.

¶ 24. In Soo Line Railroad Co. v. Department of Transportation, 101 Wis. 2d 64, 76-77, 303 N.W.2d 626 (1981), a provision contained in the 1977 Budget Bill prohibiting the transportation department from building an overpass on the Soo Line at a certain site was found to he unconstitutional private (and local) legislation. The provision reversed, in effect, a decision of the Public Service Commission ordering the construction of the overpass. Id. The Soo Line court explained:

Although many citizens of this state and other states may drive on state trunk highway 13, or use the Soo Line, [the statute] directly and immediately affects a particular entity, the Soo Line Railroad. The Soo Line Railroad is directly affected by [the statute]. The other railroads are not. . . .[The statute] also reverses a decision reached by a specific administrative agency and affirmed by a particular court relating to a particular crossing at a particular location involving a particular railroad. This administrative agency decision was reached in compliance with and pursuant to the laws made and provided by the legislature. [The statute] is without question a legislative response to a unique problem. It is difficult to conceive of a legislative enactment more particularly addressed to a specific geographical location or a specific entity. In light of the definition of private or local law set forth in our prior cases and the rationale of sec. 18, art. TV] Wis. Const, we conclude that [the statute] is a private and local law.

Id.

¶ 25. In City of Oak Creek, 185 Wis. 2d at 442, we concluded that a statute challenged under article iy section 18 that exempted a specific project in Oak Creek from compliance with state environmental requirements did not have an immediate or direct effect on any specific statewide interest and was ultimately prohibited private legislation. We reasoned:

Although it cannot be disputed that legislation which seeks to protect and regulate the state's navigable waterways is of statewide concern, the same cannot be said of legislation that exempts one particular area, and specifically one particular project, from compliance with the statewide requirements. While the overall regulatory scheme of chapter 30 has statewide significance, and was enacted in the public's interest, we conclude that the exemption granted to the City of Oak Creek for the Crawfish Creek project was not enacted for the benefit of, or in the interest of, the general public. In sum, the legislation does not have a direct and immediate effect on a specific statewide concern or interest. Any direct and immediate effect that this legislation has is upon the expenses that may be incurred by the City of Oak Creek.

Id.

¶ 26. However, in Milwaukee Brewers, 130 Wis. 2d at 118-120, the state supreme court concluded that a bill challenged under article iy section 18 directing a state agency to build a prison on a particular site was not private or local legislation. Applying the "specific" legislation test, the Milwaukee Brewers court concluded that: (1) prison construction and maintenance was a statewide responsibility of a statewide dimension; (2) the legislation affected a specific state concern or interest, prison overcrowding; (3) and would impact that concern immediately and directly by adding more prison capacity. Id. at 119-20.

¶ 27. Lake Country contends that Soo Line and Oak Creek control here. It asserts that, like the statute in Soo Line, which affected only one railroad company, the statute here affects only two organizations, YMCAs and YWCAs. Further, Lake Country argues that, as in Oak Creek, 185 Wis. 2d at 442, the legislation here "was not enacted for the benefit of, or in the interest of, the general public," but, in this case, for the benefit of YMCAs and YWCAs.

¶ 28. We conclude that Lake Country has not shown beyond a reasonable doubt that the statute does not relate to a state responsibility of statewide dimension, or that its passage would not have a direct and immediate impact on a statewide concern or interest. This case, unlike Soo Line and Oak Creek, concerns a benevolent organization that provides a broad range of programming to the public. See ¶¶ 2-3, supra. We have observed that by enacting exemptions for benevolent groups "[t]he legislature has recognized that some organizations actually serve a public rather than a private purpose and should be relieved of their tax burden." International Foundation of Emp. Ben. Plans, Inc. v. City of Brookfield, 95 Wis. 2d 444, 454, 290 N.W.2d 720 (Ct. App. 1980). By adding YMCAs and YWCAs to the short list of benevolent organizations that are tax exempt under Wis. Stat. § 70.11(12), the legislature has made a judgment about the benevolent mission of YMCAs and YWCAs.

¶ 29. We conclude the YMCA exemption relates to a statewide responsibility of statewide dimension. Whether to exempt property of certain benevolent organizations is a responsibility of the state. Because YMCAs and YWCAs are located in communities throughout Wisconsin and their programs serve thousands of individuals, whether these particular entities are exempt from taxation is an issue of statewide dimension.

¶ 30. We also conclude that the statute has an immediate and direct affect on a specific statewide concern or interest. Whether YMCAs are exempt from property taxation directly and immediately affects the resources available to YMCAs to provide benevolent programming to local communities. As described earlier, ¶¶ 2-3, supra, the record supports a view that these programs are extensive and reach many Wisconsin residents. In addition, the adoption of a uniform approach to taxation of YMCAs had an immediate and direct affect on YMCA programming budgets by providing greater certainty that their tax-exempt status would not be subject to change each year based upon the finding of a local assessor.

¶ 31. Moreover, Soo Line and Oak Creek differ from the present case in that each affected a single location, while YMCAs are located in thirty Wisconsin communities. Additionally, in both Soo Line and Oak Creek, the challenged laws provided special exemptions to lawful rules or orders of state agencies. Finally, Oak Creek determined that the statute under review was not entitled to a presumption of constitutionality, and we consequently considered whether the statute was private legislation under a much lower standard of proof. Because the challenged part of Wis. Stat. § 70.11(12) is not private legislation beyond a reasonable doubt, we therefore conclude it does not violate article iy section 18.

jB. Equal Protection Challenge

¶ 32. Lake Country contends the YMCA exemption contravenes the equal protection guarantees of the Fourteenth Amendment and article I, section 1 of the Wisconsin Constitution. Under article I, section 1, a classification made by the legislature that does not concern a suspect class or implicate a fundamental right must bear a rational relationship to a legitimate government interest. State v. Hezzie R., 219 Wis. 2d 848, 894, 580 N.W.2d 660 (1998). A statute challenged under the equal protection clause must be proven unconstitutional beyond a reasonable doubt. State ex rel. Harr v. Berge, 2004 WI App 105, ¶ 8, 273 Wis. 2d 481, 681 N.W.2d 282.

¶ 33. Before considering whether the classification is rationally related to legitimate government interest, we must answer two threshold questions: "[FJirst, did this legislation create a distinct classification of citizens; and, second, if so, did this legislation treat the class significantly differently from all others similarly situated?" Milwaukee Brewers, 130 Wis. 2d at 90. We conclude that Lake Country's equal protection claim fads at this preliminary stage.

¶ 34. The statute creates a distinct classification by exempting the YMCAs from taxation, thereby meeting the first test. However, Lake Country has not shown that for-profit health clubs and the YMCAs are "similarly situated." YMCAs are benevolent organizations; the plaintiffs are for-profit businesses. Each has a very different mission. As the YMCAs note, their eleemosynary mission sets them apart from for-profit health clubs. See again ¶¶ 2-3, supra. The for-profit health clubs and YMCAs are not sufficiently alike for Lake Country's equal protection claim to pass this threshold inquiry.

¶ 35. Because on the parties' affidavits and materials we reject Lake Country's constitutional claims as a matter of law, we affirm the circuit court's grants of partial summary judgment and summary judgment to the State and YMCAs.

By the Court. — Judgments affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       These provisions also exempted from taxation property owned by Young Women's Christian Associations (YWCAs). However, Lake Country does not challenge the exemption for YWCAs.

       Lake Country also summarily asserts that the challenged statute violates two other provisions of the state constitution, the Uniformity Clause of article VIII, section 1, and article iy section 31(6). Because these arguments are not sufficiently developed we will not address them. See Rizzuto v. Cincinnati Ins. Co., 2003 WI App 59, ¶ 21, 261 Wis. 2d 581, 659 N.W.2d 476.

       Wisconsin Stat. § 70.11 (1999-2000) provided, in relevant part:
      Property exempted from local property taxes is:
      (4) Educational, religious and benevolent institutions; women's clubs; historical societies; fraternities; libraries. Property owned and used exclusively ... by churches or religious, educational or benevolent associations .... Property owned by churches or religious associations necessary for location and convenience of buildings, used for educational purposes and not for profit, shall not be subject to the 10-acre limitation but shall be subject to a 30-acre limitation. Property that is exempt from taxation under this subsection and is leased remains exempt from taxation only if, in addition to the requirements specified in the introductory phrase of this section, the lessee does not discriminate on the basis of race.

       As amended by 2001 Wis. Act 16, Wis. Stat. § 70.11(12) provides, in relevant part:
      Certain charitable organizations, (a) Property owned by units which are organized in this state of the following organizations: the Salvation Army; the Boy Scouts of America; the Boys' Clubs of America; the Girl Scouts or Camp Fire Girls; the Young Men's Christian Association, not exceeding 40 acres for property that is located outside the limit of any incorporated city or village and not exceeding 10 acres for property that is located inside the limit of any incorporated city or village; the Young Women's Christian Association, not exceeding 40 acres for property that is located outside the limit of any incorporated city or village and not exceeding 10 acres for property that is located inside the limit of any incorporated city or village; or any person as trustee for them of property used for the purposes of those organizations, provided no pecuniary profit results to any individual owner or member.

       Lake Country contends the trial court erred by converting its motion for judgment on the pleadings regarding its article IY section 18 challenge to a motion for partial summary judgment. Some background is necessary here. Lake Country appended legislative history documents to its motion for judgment on the pleadings. Lake Country asserted that legislative history documents were not "material outside of the pleadings" within the meaning of Wis. Stat. § 802.06(3), citing Freedom from Religion Foundation v. Thompson, 164 Wis. 2d 736, 476 N.W.2d 318 (Ct. App. 1991). In Freedom from Religion Foundation, we stated that "[t]he phrase 'matters outside the pleadings' should not be read so broadly so as to include items of legislative history, which do not concern evidentiary facts and which could be introduced without supporting affidavits." Freedom from Religion Foundation, 164 Wis. 2d at 740 n.4.
      However, the State argued in its brief that Lake Country's inclusion of legislative history documents converted Lake Country's motion for judgment on the pleadings to a motion for partial summary judgment. Consequently, the State appended numerous exhibits to its brief against Lake Country's motion. The YMCAs moved for partial summary judgment. Their combined brief opposing Lake Country's motion and supporting their motion appended additional exhibits. In its combined brief in reply and in opposition, Lake Country maintained that its inclusion of legislative history documents did not convert its motion on the pleadings to a motion for partial summary judgment. However, it took the view that the State's submissions related only to legislative history, while the YMCAs' submissions included non-legislative material that exceeded the scope of material responsive to a motion on the pleadings under Freedom from Religion Foundation.

      We conclude that the circuit court properly construed Lake Country's motion for judgment on the pleadings to be a motion for partial summary judgment. This is because Lake Country does not oppose the State's submissions, and we construe these as exceeding the legislative history exception to Wis. Stat. § 802.06(3) stated in Freedom from Religion Foundation.

      We also observe that the type of constitutional issue considered in Freedom from Religion Foundation, an alleged violation of the Establishment Clause, differs significantly from a challenge under article I\( section 18. The former relates to the substance of a statute; the latter implicates the procedure used by the legislature in passing a statute. As Lake Country itself acknowledges, an article IY section 18 challenge requires a court to "expand[] the limited universe of relevant facts" to consider whether the legislature "smuggled" or "logrolled" the bill. Without stating precisely which types of materials are relevant to this injury, we believe that some types of materials outside of legislative history are relevant.

       Wisconsin Stat. § 13.52(6) provides:
      Report. Upon the introduction in either house of the legislature of any proposal which affects any existing statute or creates any new statute relating to the exemption of any property or person from any state or local taxes or special assessments, such proposal shall at once be referred to the joint survey committee on tax exemptions by the presiding officer instead of to a standing committee, and such proposal shall not be considered further by either house until the joint survey committee on tax exemptions has submitted a report, in writing, setting forth an opinion on the legality of the proposal, the fiscal effect upon the state and its subdivisions and its desirability as a matter of public policy and such report has been printed as an appendix to the bill and attached thereto as are amendments. Such printing shall be in lieu of inclusion in the daily journal of the house in which the bill was introduced.

       The YMCAs do not concede this point, however, arguing that because the thirty YMCA units in Wisconsin are separately incorporated and are united only by a common mission the legislation is not specific. We disagree. The bill is limited in its application to YMCAs, not non-profit health facilities or charitable organizations, for example. It is specific legislation for the purposes of this analysis.

       Article I, section 1 of the Wisconsin Constitution provides:

        Equality; inherent rights. Section 1. [As amended Nov. 1982 and April 1986] All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed.


author: KESSLER, J. FINE, J.

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

      No. 2005AP302-CR.

      Submitted on briefs December 6, 2005.

      Decided January 31, 2006.

    2006 WI App 28
    (Also reported in 710 N.W.2d 502.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Melinda A. Swartz, assistant state public defender of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Maura F.J. Whelan, assistant attorney general and Peggy A. Lautenschlager, attorney general.
    Before Fine, Curley and Kessler, JJ.

       Petition to review granted 6-14-06.

   KESSLER, J.

¶ 1. Barry M. Jenkins appeals from a judgment of conviction for delivery of heroin, less than three grams, second offense, contrary to Wis. Stat. § 961.41(l)(d)l. (2001-02), and from orders denying his motion for postconviction relief. Jenkins argues that: (1) the trial court erroneously denied his motion for plea withdrawal, which he made prior to sentencing; (2) a manifest injustice exists that warrants plea withdrawal because his plea was not entered knowingly and voluntarily; and (3) the trial court erred when it concluded that Jenkins had been provided effective assistance of counsel. We conclude that the trial court should have granted Jenkins's presentence motion to withdraw his plea because he provided a fair and just reason to do so and the State has offered no argument that it would have been substantially prejudiced if the motion were granted. Therefore, we reverse and remand for further proceedings. We do not address the remaining issues. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need be addressed).

BACKGROUND

¶ 2. In September 2002, Jenkins was charged in connection with the sale of heroin to an undercover officer. Although Jenkins originally pled not guilty, he changed his plea to guilty on February 24, 2003. At the plea hearing, the State informed the trial court that the plea agreement included the State's recommendation of two years of initial confinement, two years of extended supervision, a one thousand dollar fine, and costs. Although the parties referenced an "offer letter" at the plea hearing, the specific contents of that letter were not discussed or read to the trial court.

¶ 3. The trial court then proceeded with a standard guilty plea colloquy. As part of this colloquy, the trial court asked Jenkins if he had been promised anything or threatened; Jenkins replied no to both questions. The trial court accepted Jenkins's plea and found him guilty. At the conclusion of the hearing, the trial court asked defense counsel whether Jenkins might be a good candidate for the Felony Drug Offender Alternative to Prison Program (FDOATP). Defense counsel replied: "We are seeking an adjournment of this matter. He has some people that he needs to talk to that may influence your judgment on sentencing, so I'm asking for about 45 days." The trial court then said Jenkins might be eligible for the Challenge Incarceration Program, ordered a pre-sentence investigation, and scheduled sentencing for April 24, 2003.

¶ 4. On April 19, 2003, Jenkins personally wrote a seven-page letter to the trial court. In that letter, which we acknowledge is difficult to interpret, Jenkins complained about a conspiracy against him. He referenced an offer he made to the State in October 2002 to provide information on heroin traffickers in exchange for a dismissal of the charges. Jenkins asserted that he ultimately pled guilty based on his belief that he had to admit guilt before the State would allow him to receive the benefit of any assistance he might provide to law enforcement. Jenkins also complained about defense counsel's representation, and asked the trial court to dismiss the case against him. No action was taken on Jenkins's letter, and it appears that defense counsel was not aware of the letter until the trial court asked counsel about it at sentencing.

¶ 5. The parties appeared for sentencing on April 28, 2003, four days later than originally scheduled. Defense counsel moved for an adjournment for thirty or sixty days, noting that the State would not be prejudiced because Jenkins was currently incarcerated on another charge anyway. Defense counsel explained the reason for the adjournment:

A previous attorney had this case and it remained in trial posture and [Jenkins] asked for a second attorney. When I took the case, he had told me about wishing to cooperate with the state to help himself.
And I approached [the prosecutor] and he said, well, what would have to happen would be that he would have to accept responsibility for the act for which he was charged. I had filed jurisdictional objections, motion on the photo array and that he was arrested on. [sic] I explained that to [Jenkins] and he said, based on the fact that he wanted to cooperate with the state, he would accept the responsibility and, at the plea [hearing] ... I asked you to withdraw the motion.
[After the plea hearing, the prosecutor had two detectives interview] my client after I had debriefed him. I made an offer of proof to [the prosecutor], and that was the basis that he sent the Milwaukee detectives to meet with [Jenkins]. They met for an extensive period of time, and I met with the detectives afterward. They informed me that he had volumes of information; good information.

Defense counsel said that although his client had provided good information, the detectives said that to get credit, Jenkins would have to arrange a narcotics sale, which was impossible because he was incarcerated. However, one detective said he would try to influence the liaison officer from the federal government to interview Jenkins. Defense counsel said that he also spoke with an assistant district attorney who served as a special federal prosecutor, and that the assistant district attorney said he would approach numerous federal agencies based on defense counsel's offer of proof.

¶ 6. Defense counsel said that he subsequently placed at least twenty phone calls trying to arrange for Jenkins to meet with the federal government, but that he was told that the federal government was more interested in terrorism than drug crimes. Thus, Jenkins never met with federal agents.

¶ 7. Defense counsel said that he then went back to the same assistant district attorney, who promised to try to get the Internal Revenue Service's Criminal Investigation agents involved because Jenkins, in his offer of proof, had spoken of how he had purchased cars from people for cash in excess of $10,000. The IRS had not met with Jenkins as of the sentencing date.

¶ 8. Defense counsel stated that he was seeking an adjournment "because I've not been informed that they are strictly not interested, they just have not had the time or resources" to interview Jenkins. Defense counsel also outlined some of the evidence that Jenkins was willing to share with law enforcement. Defense counsel reiterated his interest in finding law enforcement officers willing to listen to Jenkins and give him credit for cooperating.

¶ 9. The trial court then asked defense counsel whether "[Jenkins] entered a guilty plea because he had some sort of sense that he would definitely be working with authorities[.]" Defense counsel replied:

I was suggesting that I told him that he would have to accept responsibility as the entry card to doing this work. [The prosecutor] insisted on that.
[Jenkins] said, ["T]hat's okay if I can get to talk to these people, I have a lot to tell them,["] and then I proceeded to do the debriefing so I could make an offer of proof. I think in his mind... he was not thinking that he would get out of everything, that maybe [the trial court] would go along with [the prosecutor] on the recommendations or something like that, but it was to get more out of the business and that he would have some ... good come of it, that you could consider it in making your sentencing....

¶ 10. The trial court asked for the State's position. The prosecutor replied: "I don't have a specific objection to it. I understand [counsel's] comments and I appreciate them." In response, the trial court stated that in an off-the-record discussion the previous week, it had spoken with a different assistant district attorney and the trial court had indicated it was not inclined to adjourn the sentencing hearing. The trial court explained that one reason it was not inclined to adjourn the hearing was that Jenkins, who was serving time in prison for another crime, had to be brought to court from a great distance, requiring transportation and presenting a risk to officers. The trial court also observed:

It does not appear as if the authorities are interested in his cooperation. I do think that the federal authorities are still working drug cases. That has not gone away. They just don't think from what you've described, [counsel], that [Jenkins] is a particularly promising asset for the law enforcement authorities. Any time anybody's incarcerated, their value is diminished, the information becomes stale, and so they're not working with him, so I'm not inclined to adjourn the sentencing at all.
If what you're telling me is he entered a guilty plea premised on the notion there would be cooperation and because no one has gone to see him, there's been a breach of the plea agreement, and you want me to vacate the plea and start all over again, we can start talking about that. I'll have to hear what the state has to say, but absent a showing that that was part of the plea agreement in this case, I am not prepared to adjourn.

¶ 11. With respect to the plea, defense counsel said that there was nothing discussed at the plea hearing about Jenkins's plans to become a police informant. He added: "Perhaps [Jenkins] would care to make a motion for a change in plea. I don't have a good faith ability to do that for you because I did not do that on the record during the plea taking."

¶ 12. In response, the trial court appeared to assume that Jenkins was not seeking to withdraw his plea and proceeded to clarify the plea recommendation of two years of initial confinement, two years of extended supervision, and a fine. The trial court asked Jenkins if that was his understanding, which led to the following exchange:

[JENKINS]: I would like to withdraw my plea.
THE COURT: What is the basis for that request?
[JENKINS]: Stipulations that I'm not able to fulfill, what I had my projections on. I'm sure the federal agents were meaning to speak to me.
[My attorney] has done a lot, you know, in regards to this, and it's on the basis, the sole basis is it was initially my part, my purpose of entering the plea that I entered which was a guilty plea, and I would just like to withdraw my plea.
THE COURT: What was your understanding of what was going to happen?
[JENKINS]: At least I would benefit... be able to get out of the life I'm already in or I was involved in at the time. And sort of, you know, they bring in at least to assist the state here, you know, from much of the troubles I've caused and the stress we place on Milwaukee, the police department here in this state, and sort of abolish this heroin that's flowing into the states and guns and everything else, so sort of just kind of get myself cleared up and get back on track.
It's not too much about the time, you know. It's not much time. I've done, as you can read, I've done time before. My point is just to get some changes, you know, with myself and help.
THE COURT: Mr. Jenkins, no one has a right to any kind of special treatment. Sometimes a plea agreement is reached that has certain specific parts to it that require one party to do something or the other party to do something else. And from what [your attorney and the State] ... told me, that was not part of the plea agreement that was reached here. So you had a hope that did not come to fruition. Nothing happened. No one came to see you. But I don't see that that was a violation of a plea agreement; therefore, I will not permit you to vacate your plea and we will proceed to sentencing.

¶ 13. The trial court then asked questions about the presentence report and heard argument from the parties. The trial court asked the parties about a letter it received directly from Jenkins, in which Jenkins expressed disappointment in the criminal justice sys-

tem. The trial court read portions of the April 19, 2003, letter where Jenkins complained that he had felt pressured to plead guilty by his attorney and the State. The trial court then spoke directly to Jenkins:

The letter expresses dissatisfaction but the problem, Mr. Jenkins, is that [defense counsel] doesn't get to control what the offer from the state is. The state controls that, and so many times there is dissatisfaction with defense attorneys because the deal they're able to bring to their clients is not one that's satisfactory to the client but it is what it is. It is what the state has offered, okay?

¶ 14. Next, both defense counsel and Jenkins said that they wanted defense counsel to withdraw. The trial court denied this request after determining that Jenkins had already been appointed two lawyers and, consistent with its policy, the State Public Defender was not likely to appoint a third attorney. Jenkins talked about hiring an attorney, but said he could not do so quickly. The trial court offered to delay sentencing for a week, but Jenkins said he would rather just keep defense counsel.

¶ 15. The parties gave their arguments on sentence. The trial court discussed Jenkins's extensive criminal history and the presentence investigation report's recommendation of five-to-seven years of initial confinement and one-to-two years of extended supervision. The trial court sentenced Jenkins to five years of initial confinement and three years of extended supervision, plus a $500 fine.

¶ 16. Jenkins moved for postconviction relief on grounds that: (1) the trial court erred when it denied Jenkins's motion for plea withdrawal prior to sentencing; and (2) Jenkins was denied the effective assistance of trial counsel because counsel did not move for plea withdrawal prior to sentencing. With respect to the first ground, Jenkins argued that the record demonstrated a fair and just reason for allowing him to withdraw his plea: Jenkins did not understand the plea agreement and its consequences. In support of his motion, Jenkins provided copies of numerous letters, including one he received from his defense counsel prior to pleading guilty that provided in relevant part:

I also was informed by [the State] that you wrote to him concerning the possibility of getting some benefit for some information that you know. It is often possible to work out an arrangement where a defendant gets credit for what aid he gives to the police departments. He might even get enough credit that the police would testify at a sentencing hearing so [Jenkins] would not be sent to prison. [The State] is willing to work out some arrangement but [the State] insists that you take responsibility for your acts beforehand. That is, acknowledge that it was you making the hand to hand buy from the police officers. If you then wish to work with officers from narcotics or vice, that can be arranged. You would be debriefed and given use immunity for anything that you told to them. They would then make arrests or get warrants leading to arrests. If there were productive arrests from your information, you would be given credit. You might be given a lot of credit if you further testified against perpetrators. Bear in mind that all of this is predicated on acceptance of responsibility for the crime for which you were charged.

¶ 17. The State opposed Jenkins's motion, asserting that there was no fair and just reason to grant Jenkins's motion for plea withdrawal prior to sentencing because, it asserted, there was no actual misunderstanding of the plea agreement. The State explained that being provided the opportunity to give information was not part of the plea agreement, noting that neither party told the trial court it was part of the agreement when Jenkins pled guilty. The State also provided a copy of an offer letter dated October 2, 2002, that offered to recommend a specific sentence, but did not mention any opportunities to provide information to law enforcement officers.

¶ 18. Jenkins filed a supplemental postconviction motion, adding the argument that a manifest injustice exists because his plea was not knowingly and voluntarily entered. The trial court denied both motions without a hearing and this appeal followed.

DISCUSSION

¶ 19. Jenkins presents three arguments on appeal, all based on his presentencing motion to withdraw his guilty plea. We conclude that there was a fair and just reason for Jenkins to withdraw his guilty plea, and that the trial court therefore erroneously exercised its discretion when it denied Jenkins's motion. Therefore, we reverse and remand for further proceedings.

¶ 20. "[A trial] court should freely allow a defendant to withdraw his plea prior to sentencing for any fair and just reason, unless the prosecution will be substantially prejudiced." State v. Bollig, 2000 WI 6, ¶ 28, 232 Wis. 2d 561, 605 N.W.2d 199. Bollig stated:

Although "freely" does not mean "automatically," the exercise of discretion requires the court to take a liberal, rather than a rigid, view of the reasons given for plea withdrawal. A fair and just reason contemplates "the mere showing of some adequate reason for defendant's change of heart." However, the reason must he something other than the desire to have a trial.

Id., ¶ 29 (citations omitted). In contrast to the liberal standard for allowing plea withdrawal before sentencing, motions to withdraw after sentencing "will be granted only when necessary to correct a manifest injustice." State v. Duychak, 133 Wis. 2d 307, 312, 395 N.W.2d 795 (Ct. App. 1986).

¶ 21. "Although 'fair and just reason' has not been precisely defined," Wisconsin courts have recognized a variety of fair and just reasons for plea withdrawal prior to sentencing, such as: genuine misunderstanding of the plea's consequences; haste and confusion in entering the plea; coercion on the part of trial counsel; and confusion resulting from misleading advice from the defendant's attorney. State v. Shimek, 230 Wis. 2d 730, 739, 601 N.W.2d 865 (Ct. App. 1999). In addition, an "assertion of innocence and the promptness with which the motion [to withdraw a plea prior to sentencing] is brought [are] factors relevant to the court's consideration," see id., but they are neither required nor determinative.

¶ 22. The defendant has the burden of proving, by a preponderance of the evidence, a fair and just reason for the plea withdrawal. State v. Garcia, 192 Wis. 2d 845, 862, 532 N.W.2d 111 (1995). We review a trial court's decision to deny a defendant's motion to withdraw his guilty plea prior to sentencing using the erroneous exercise of discretion standard. State v. Tim- blin, 2002 WI App 304, ¶ 20, 259 Wis. 2d 299, 657 N.W.2d 89. "Thus, we will uphold a discretionary decision if the [trial] court reached a reasonable conclusion based on the proper legal standard and a logical interpretation of the facts." Id.

A. Fair and just reason

¶ 23. Jenkins argues that he had a genuine misunderstanding about whether he would be guaranteed an opportunity to work with law enforcement to potentially receive a benefit at sentencing, and that this is a fair and just reason to allow plea withdrawal. In support of his argument, he cites State v. Manke, 230 Wis. 2d 421, 602 N.W.2d 139 (Ct. App. 1999), where we upheld a trial court's finding that a fair and just reason existed to allow the defendant to withdraw his guilty plea where the defendant presented evidence that he misunderstood the plea and received misleading advice from his lawyers. Id. at 430.

¶ 24. We agree with Jenkins that he asserted a fair and just reason to allow him to withdraw his guilty plea; specifically, that he had a genuine misunderstanding about whether he would be guaranteed an opportunity to work with law enforcement to potentially receive a benefit at sentencing. This misunderstanding was corroborated with undisputed, substantial evidence in the record, including the letter from defense counsel to Jenkins, and defense counsel's assertions at the sentencing hearing about his efforts to provide Jenkins with an opportunity to assist law enforcement. We do not see this as an ineffective assistance of counsel case, but instead a case that can be decided based on Jenkins's misunderstanding about whether he would be guaranteed an opportunity to work with law enforcement.

¶ 25. The trial court rejected Jenkins's motion not because it found Jenkins's assertions incredible, but because it found that the plea agreement had not guaranteed Jenkins an opportunity to work with law enforcement. The trial court told Jenkins:

Sometimes a plea agreement is reached that has certain specific parts to it that require one party to do something or the other party to do something else. And from what [your attorney and the State] ... told me, that was not part of the plea agreement that was reached here. So you had a hope that did not come to fruition.

This finding suggests that the trial court believed that the State and defense counsel may not have considered working with law enforcement a specific component of the plea agreement. Even if that were the case, it does not negate Jenkins's assertion that he believed it was part of the agreement. The State points to no evidence that Jenkins was explicitly told that there was no guarantee, and Jenkins has provided undisputed evidence that corroborates the reasonableness of his belief.

¶ 26. First, defense counsel's pre-plea letter to Jenkins stated that the State was "willing to work out some arrangement but [] insists that you take responsibility for your acts beforehand." The letter explained in detail what Jenkins had to do to receive a benefit:

[You must] acknowledge that it was you making the hand to hand buy from the police officers. If you then wish to work with officers from narcotics or vice, that can be arranged. You would be debriefed and given use immunity for anything that you told to them. They would then make arrests or get warrants leading to arrests. If there were productive arrests from your information, you would be given credit. You might be given a lot of credit if you further testified against perpetrators. Bear in mind that all of this is predicated on acceptance of responsibility for the crime for which you were charged.

Second, although defense counsel did not mention the plan to have Jenkins work with law enforcement during the beginning of the plea hearing, he referenced it at the end, telling the trial court that Jenkins "has some people that he needs to talk to that may influence your judgment on sentencing, so I'm asking for about 45 days."

¶ 27. Third, defense counsel made numerous calls on Jenkins's behalf, attempting to arrange for opportunities for Jenkins to work with both state and federal law enforcement. Defense counsel's statements at sentencing make clear that it was his expectation that Jenkins was going to have a chance to work with law enforcement, and that defense counsel did everything he could reasonably do to make that happen. Indeed, defense counsel asked for an adjournment to continue to try to meet Jenkins's expectation, which reinforces Jenkins's assertion that cooperating with law enforcement was a key component to his decision to plead guilty.

¶ 28. These facts all support Jenkins's presen-tence assertion that he believed, both before pleading guilty and afterward, that he would have an opportunity to work with law enforcement if he accepted responsibility for the crime. Even if Jenkins was wrong —that the State and defense counsel never intended to imply that there was a guarantee — it is nonetheless a fair and just reason to allow Jenkins to withdraw his plea. See Manke, 230 Wis. 2d at 429 ("Under the fair and just reason standard, a plea may be withdrawn if the defendant misunderstands the consequences of that plea.").

¶ 29. The State disagrees. It notes that Jenkins did not mention the existence of "this alleged additional aspect of the plea agreement despite the invitation to do so" at sentencing. The State notes that Jenkins was in fact given access to two Milwaukee police detectives after he pled guilty, and shared with them some of his information. The State questions Jenkins's understanding of the agreement:

Mr. Jenkins told the court that the agreement between himself and the State consisted of his guilty plea in exchange for the State's recommendation of a 24/24 sentence; the State shared this view. No misunderstanding there. Jenkins expected as a result of his plea that he would be given the opportunity to cooperate with State authorities. He was given [that opportunity]. Unfortunately, they could do nothing useful with the information he gave them because of his incarcerated status; nevertheless, they attempted to put him in touch with federal authorities, unsuccessfully as it turns out. However, all that matters for the purposes of this argument is that Jenkins expected to be put in touch with State law enforcement officers and he was.

¶ 30. The State suggests that this court should bind Jenkins to a strict interpretation of the letter defense counsel sent him, and conclude that because Jenkins spoke with two officers, his expectations should have been satisfied. If the issue before this court were an alleged breach of the plea agreement raised after sentencing, our analysis might require such a strict analysis of every word in defense counsel's letter. But given the applicable standard for pre-sentence motions for plea withdrawal, that courts must take "a liberal, rather than a rigid, view of the reasons given for plea withdrawal," see Bollig, 232 Wis. 2d 561, ¶ 29, we conclude that the State asks too much. The letter suggested that if Jenkins pled guilty, he would have an opportunity to work with law enforcement and benefit his case. The letter focused on the requirement that Jenkins plead guilty, and did not mention what would happen if law enforcement chose not to work with Jenkins or evaluate the likelihood of Jenkins's information leading to arrests. Jenkins's belief that he would be working with law enforcement was not unreasonable under the circumstances, and provided a fair and just reason for plea withdrawal.

B. Prejudice

¶ 31. Our conclusion that Jenkins had a fair and just reason for plea withdrawal does not end our inquiry. We must consider whether the State would be substantially prejudiced by the plea withdrawal. See id., ¶ 28. The trial court never considered prejudice, but we note that neither at the trial court nor on appeal does the State suggest that it would have been prejudiced in any way if the plea withdrawal had been allowed. In the absence of even an assertion of prejudice, we conclude that the trial court erroneously exercised its discretion when it denied Jenkins's pre-sentencing motion to withdraw his plea. See State v. Shanks, 152 Wis. 2d 284, 292, 448 N.W.2d 264 (Ct. App. 1989) (concluding defendant should have been allowed to withdraw plea where he proved a fair and just reason and the State made no argument that it would be substantially prejudiced by the defendant's plea withdrawal). Therefore, we reverse and remand for further proceedings.

By the Court. — Judgment and orders reversed and cause remanded for further proceedings.

FINE, J.

¶ 32. (dissenting). The Majority acknowledges that a decision whether to permit a defendant who has pled guilty to withdraw his guilty plea and avoid sentencing is vested in the trial court's discretion. "A trial court's discretionary decision to deny plea withdrawal will be upheld on appeal when the court 'reached a reasonable conclusion based on the proper legal standard and a logical interpretation of the facts.'" State v. Leitner, 2001 WI App 172, ¶ 24, 247 Wis. 2d 195, 207-208, 633 N.W.2d 207, 212-213 (quoted source omitted). Here, the trial court was meticulous in the exercise of its discretion. The Majority, however, in my view, ignores this proper standard of review and substitutes what it believes should have been done based on its analysis of the very facts upon which the trial court relied.

¶ 33. As can be seen from the Majority's extensive recitation of the background leading to this appeal, Barry M. Jenkins had a hope, an "expectation" if you will, of what might happen if he was able to persuade the authorities that he had information sufficiently valuable to them for him to get some quid pro quo consideration. As the trial court pointed out in its lucid written decision denying Jenkins's motion for postcon-viction relief, however, this perception of a possible quid pro quo consideration did not result from anything that his lawyer or the State did to mislead him — there was scrupulous adherence to the plea bargain. Thus, the trial court explained in its written decision:

Here, there was not a "genuine misunderstanding" of the plea's consequences; the consequences of the plea were that the State would make a recommendation of 24 months initial confinement and 24 months extended supervision, and the court would fashion a sentence based on the seriousness of the offense, the defendant's character, and the need for community protection. The defendant may have thought that a more favorable sentence would have been imposed had he been able to connect with federal law enforcement authorities who would have appeared or spoken on his behalf, but this was not a part of the plea agreement. Consequently, there was no misunderstanding about the consequences of the plea. For these reasons, there was not a fair and just reason to withdraw the plea.

(Emphasis by the trial court.) Indeed, the Majority concedes that here, unlike the situation in State v. Manke, 230 Wis. 2d 421, 430, 602 N.W.2d 139, 144 (Ct. App. 1999), the defendant did not base his alleged "misunderstanding" on misleading advice from his lawyer, by asserting in ¶ 24: "We do not see this as an ineffective assistance of counsel case, but instead a case that can be decided based on Jenkins's misunderstanding about whether he would be guaranteed an opportunity to work with law enforcement."

¶ 34. In my view, the Majority is setting new ground and creating new law by holding that what the trial court has found to be an unjustified and objectively unreasonable misperception by a defendant permits pre-sentence withdrawal of that defendant's plea. Significantly, the defendant has not shown beyond mere assertion either:

• that he is innocent of the charges, or, at least, that he has a reasonable chance of acquittal at a trial so that it would be "fair" to permit him to withdraw his guilty plea, or
• that the authorities lured him into pleading guilty.

The Majority finesses the first aspect, and its extensive recitation of the facts negates any inference that would support a finding on the second. Indeed, the trial court found that Jenkins was not misled by anyone. Further, despite Jenkins's sporadic assertions that he was misidentified, his appellate brief concedes that "[djuring the plea colloquy, the defendant told the court that he delivered the heroin to the undercover officers." Thus, there is ample support for the trial court's finding that Jenkins's post-plea contentions were not "credible in light of his own earlier words." Indeed, Jenkins even asserts that getting credit at sentencing was not the prime reason he wanted to work with law enforcement: "It's not too much about the time, you know. It's not much time. I've done, as you can read, I've done time before. My point is just to get some changes, you know, with myself and help." Majority, ¶ 12. Earlier in his colloquy with the trial court, Jenkins explained what apparently he meant by "help": "[F]rom much of the troubles I've caused and the stress we place on Milwaukee, the police department here in this state, and sort of abolish this heroin that's flowing into the states and guns and everything else, so sort of just kind of get myself cleared up and get back on track." Ibid. Clearly, the trial court did not believe Jenkins's sentencing-conversion expressions of concern for society and "stress" on the "police department."

¶ 35. Until now, it has been the law in this state that a defendant seeking to withdraw his plea must establish that he or she would have gone to trial — mere conclusory allegations are not enough. State v. Thornton, 2002 WI App 294, ¶ 27, 259 Wis. 2d 157, 178-179, 656 N.W.2d 45, 55. Here, we do not even have a "conclusory" allegation that Jenkins would have gone to trial. In my view, the trial court appropriately exercised its discretion, and I would affirm for that reason. Accordingly, I respectfully dissent.

¶ 36. I also want to reiterate what I have long contended, and, sadly, this case, though not through any fault of the Majority (because the case came to us after having been plea-bargained), is but another example: the plea-bargaining quadrille is an insult, not an enhancement, to justice. It is also, in my view, a tawdry auction, where both defendants and often the State (when it seeks to extort guilty pleas by the threat to up-the-ante if the defendant does not cave) seek what I see as an attempt to "game" justice — as in the typical auction, there are bids, reserves, and, ultimately, sales. As former federal judge Herbert J. Stern has written, "The present system has the flavor of a fish market. It ought to be hosed down." Herbert J. Stern, Book Review, 82 Colum. L. Rev. 1275, 1283 (1982) (reviewing Abraham S. Goldstein, The Passive Judiciary (1981)).

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The record indicates that an off-the-record hearing with the trial court, defense counsel and the State occurred days earlier. The notes of that meeting state that "[d]ue to calendar congestion, case adjourned to April 28, 2003" for sentencing.

       The trial court held in abeyance, pending a Wisconsin Supreme Court decision, the issue whether Jenkins's plea was not knowingly entered based on the trial court's failure to inform Jenkins that he would have to serve each day of the initial confinement imposed by the trial court. This issue is not being raised on appeal and will not be addressed.

       In doing so, we acknowledged that our affirmance was based on a discretionary standard of review. See State v. Manke, 230 Wis. 2d 421, 430, 602 N.W.2d 139 (Ct. App. 1999).

       Jenkins's primary reason for plea withdrawal is his assertion that he had a genuine misunderstanding about whether he would be guaranteed an opportunity to work with law enforcement to potentially receive a benefit at sentencing. He also briefly argues that he has asserted his innocence and that his motion for plea withdrawal was brought expeditiously. The Dissent faults the Majority for focusing on Jenkins's primary reason for withdrawal and not analyzing two of the other relevant factors: allegations and proof of innocence, and whether there was actual misconduct by "the authorities" in order to withdraw a plea prior to sentencing. See Dissent, ¶ 3. In response, we note that "[a]n assertion of innocence is important, but not dispositive." State v. Leitner, 2001 WI App 172, ¶ 25, 247 Wis. 2d 195, 633 N.W.2d 207, aff'd, 2002 WI 77, 253 Wis. 2d 499, 646 N.W.2d 341. Moreover, Jenkins has asserted that he is innocent; the State contests the reliability of that assertion. Rather than focus on the parties' dispute concerning that single, non-dispositive factor, we have focused on the factor most relevant under the facts of this case: Jenkins's assertion that he had a genuine misunderstanding about whether he would be guaranteed an opportunity to work with law enforcement to potentially receive a benefit at sentencing. Applying the requisite "liberal, rather than [] rigid, view of the reasons given for plea withdrawal[,]" see State v. Bollig, 2000 WI 6, ¶ 29, 232 Wis. 2d 561, 605 N.W.2d 199, we conclude that Jenkins has proven a fair and just reason for plea withdrawal.