author:
CURLEY, J.
     WEDEMEYER, RJ.

text:
    In re the Termination of Parental Rights to Deannia D., a Person Under the Age of 18: Deannia D., by her Guardian ad Litem, Deanna Weiss, Appellant, State of Wisconsin, Petitioner-Co-Appellant, v. Lamont D., Respondent.
    Court of Appeals

      No. 2005AP945.

      Submitted on briefs August 30, 2005.

      —Decided November 8, 2005.

    2005 WI App 264
    (Also reported in 709 N.W.2d 879.)

      On behalf of the appellant and the petitioner-co-appellant, the cause was submitted on the briefs of Elisabeth A. Mueller, assistant district attorney, and Deanna Weiss of Legal Aid Society of Milwaukee, Inc., of Milwaukee.

      On behalf of the respondent, the cause was submitted on the brief of Duke J. Lehto of Milwaukee.
    Before Wedemeyer, EJ., Curley and Kessler, JJ.
   CURLEY, J.

¶ 1. The State of Wisconsin and the guardian ad litem for the child, Deannia D., the subject of this termination petition, appeal the trial court's order dismissing the termination of parental rights petition brought against Lamont D., the father of Deannia. The dismissal occurred after a jury found that the State failed to prove either of two grounds alleged in the petition that would have permitted a termination of Lamont's parental rights to Deannia. The petition alleged both that Lamont failed to assume parental responsibility for Deannia pursuant to Wis. Stat. § 48.415(6) (2003-04), and that he failed to visit or communicate with Deannia during a six-month period, resulting in her abandonment pursuant to § 48.415(l)(a)3. The State and the guardian ad litem contend that the trial court erred in denying their motions, and request that the trial court change the answer in the special verdict concerning the abandonment claim, and alternately, seek a new trial in the interest of justice on this ground. Because the record contains contradictory evidence and a key witness did not testify, and because it is possible the jury did not believe that the State proved the six-month period of abandonment, the trial court's refusal to change the verdict answer or to grant a new trial was not "clearly wrong." Consequently, we affirm.

I. Background.

¶ 2. Deannia was born on February 2, 2001. At the time of her birth, her parents, Elizabeth E. and Lamont, while not married, were living together. Several months after Deannia's birth, Lamont was arrested and then imprisoned. After Lamont went to prison, Deannia remained in the care of her mother. Lamont last saw Deannia while he was incarcerated at the Milwaukee County Jail in September 2001. Lamont, who was subsequently transferred to the Prairie Du Chien Correctional Facility and then to the Green Bay Correctional Facility, testified that while he was incarcerated, he wrote letters to both Deannia and Elizabeth, all of which he sent to Elizabeth. Due to Elizabeth's drug and mental health problems, Deannia was removed from her care in July 2002, and placed in foster care. At first, Elizabeth visited Deannia; however, Elizabeth began to miss many of her scheduled visits and her last actual contact with Deannia was on December 10, 2002, after which the visits were suspended. While at some point in time Lamont learned that Deannia had been placed in foster care, he testified he never received any information from the social worker concerning Deannia's detention hearing. Implicit from his testimony is his belief that Elizabeth continued to visit Deannia after she lost custody, and that Elizabeth was communicating the contents of his letters to Dean-nia when she visited her, even though none of his letters explicitly requested that she do so. Once released, on April 29, 2003, Lamont testified that he contacted Deannia's social worker seeking visitation with Dean-nia. On June 4, 2003, Lamont met with the social worker in person and testified that the social worker told him he could not visit his daughter until he completed an alcohol and drug assessment and an anger management class. Much of Lamont's account of what occurred was disputed by the State's witnesses.

¶ 3. Shortly thereafter, on June 20, 2003, the State filed a petition seeking to terminate the parental rights of both Elizabeth and Lamont to Deannia on grounds of failure to assume parental responsibility and abandonment. After several mistrials were declared and after Elizabeth agreed that grounds existed to terminate her parental rights to Deannia, a jury determined that grounds did not exist to terminate Lamont's parental rights on either ground alleged by the State.

¶ 4. At trial, Lamont testified that he had a substantial parental relationship with Deannia before he was incarcerated, as he was living with her mother when she was born, and purchased things for her. He also stated he accompanied Elizabeth to several of her doctor appointments related to her pregnancy with Deannia. He told the jury that he wrote letters to Deannia and Elizabeth daily. When he was in solitary confinement, which he termed "the hole," he was not allowed the use of a pen, so he had someone else address envelopes and sent them blank cards instead. He stated that while incarcerated, he never contacted the Children's Court or the social worker, both because he was prevented from doing so by being in solitary confinement, and because he did not know who to contact.

¶ 5. One of Deannia's foster mothers, and several paid workers who supervised Elizabeth's visits with Deannia, testified that while supervising the visits, they never saw her with any letters or correspondence from Lamont. Elizabeth did not testify. The supervising social worker also disputed Lamont's version. She claimed she faxed the notice of Deannia's detention hearing to him in prison, and recalled that she gave him her business card, containing her name and contact information, while at a court appearance for another child in December 2003, and that she initiated contact with Lamont after his release. Additionally, the State and the guardian ad litem suggested to the jury that the language and content of the letters sent by Lamont were inappropriate for a child of Deannia's age.

¶ 6. On the first ground, the jury found that Lamont did not fail to assume parental responsibility for Deannia. On the second ground, the jury found that Lamont had left Deannia with another person and he either knew or could have discovered his daughter's whereabouts. Having made those two findings, the jury then found that Lamont did not fail to visit or communicate with Deannia for a period of six months or longer. Because of these answers, the jury was not required to answer the remaining verdict questions, which meant that the jury found that Lamont had not abandoned Deannia. While there were two dissenting jurors to the question inquiring about the first ground to terminate Lamont's parental rights, the jury's answers concerning the second ground were unanimous.

¶ 7. Following the jury verdict, both the State and the guardian ad litem, in separate motions, sought to have the trial court change the answer to the question concerning whether Lamont failed to visit or communicate with Deannia, and, in the alternative, sought a new trial in the interest of justice. The trial court denied both motions and dismissed the petition for the termination of Lamont's parental rights to Deannia. The State and the guardian ad litem have jointly appealed this decision.

II. Analysis.

¶ 8. The State and the guardian ad litem argue that the trial court erred in denying their motions seeking either a change in the jury's answer to the question whether Lamont failed to visit or communicate with Deannia for six months or longer, and in denying their motions seeking a new trial in the interest of justice. They point to the fact that Lamont had no face-to-face visits or telephone contact with Deannia after September 2001, and that the social worker assigned to Deannia's case during the alleged abandonment period received no communication from Lamont after she sent him paperwork concerning Deannia's detention. Further, they point to the testimony of the social worker who said that Lamont did not contact her, despite her requests that he do so, until after he was released. The social worker also claimed that Lamont made no requests to visit Deannia until their June 4, 2003 meeting, despite her sending him correspondence concerning Deannia. From these facts, they argue that since Elizabeth had no contact with Deannia after December 10, 2002, until the filing of the termination of parental rights petition, Lamont therefore could not communicate with Deannia via Elizabeth. They also complain that Lamont's various letters and cards introduced at trial, which he testified he wrote and sent to Elizabeth with the intention that Elizabeth would read them to Deannia, contained bad language and threats, and were unsuitable communications for a child.

¶ 9. We give significant deference to jury verdicts on appeal, and may not overturn them "if there is any credible evidence" that supports what the jury has found, giving to the jury's finding every reasonable supporting inference. State v. Quinsanna D., 2002 WI App 318, ¶ 30, 259 Wis. 2d 429, 655 N.W.2d 752. Stated differently, the standard of review on a sufficiency of evidence claim is that this court will not overturn a verdict if there is any credible evidence that under any reasonable view will sustain the jury's finding. Coryell v. Conn, 88 Wis. 2d 310, 315, 276 N.W.2d 723 (1979). When there is any credible evidence to support a jury's verdict, "even though it be contradicted and the contradictory evidence be stronger and more convincing, nevertheless the verdict. . . must stand." Weiss v. United Fire & Cas. Co., 197 Wis. 2d 365, 389-90, 541 N.W.2d 753 (1995) (citation and internal quotations omitted).

¶ 10. An appellate court should not overturn a trial court's decision to dismiss for insufficient evidence unless the record reveals that the circuit court was "clearly wrong." Helmbrecht v. St. Paul Ins. Co., 122 Wis. 2d 94, 110, 362 N.W.2d 118 (1985) (citation omitted); see also Olfe v. Gordon, 93 Wis. 2d 173, 185-86, 286 N.W.2d 573 (1980); James v. Heintz, 165 Wis. 2d 572, 577, 478 N.W.2d 31 (Ct. App. 1991). Because a trial court is better positioned to decide the weight and relevancy of the testimony, an appellate court "must also give substantial deference to the trial court's better ability to assess the evidence." Weiss, 197 Wis. 2d at 388-89 (citation omitted).

¶ 11. With regard to the State's and the guardian ad litem's request for a new trial in the interest of justice, under Wis. Stat. § 805.15(1), a trial court may set aside a jury verdict and order a new trial in the interest of justice. We accord "great deference" to the trial court's exercise of discretion under this subsection. Sievert v. American Fam. Mut. Ins. Co., 180 Wis. 2d 426, 431, 509 N.W.2d 75 (Ct. App. 1993), aff'd, 190 Wis. 2d 623, 528 N.W.2d 413 (1995). We apply great deference "because the order is itself discretionary, and the trial court is in the best position to observe and evaluate the evidence." Id. This "interest of justice" standard encompasses the same grounds as contained in Wis. Stat. § 752.35, including the authority to reverse when errors have prevented the real controversy from being fully tried. State v. Harp, 161 Wis. 2d 773, 779, 469 N.W.2d 210 (Ct. App. 1991).

¶ 12. Here, the jury was instructed that the State had the burden of proving all questions to a reasonable certainty:

Burden of proof. The burden of proof as to all questions in the verdict forms is upon the petitioner, State of Wisconsin. The burden of proof is to satisfy you to a reasonable certainty by evidence that is clear, satisfactory, and convincing that "yes" should be the answer to each question in the verdicts. Clear, satisfactory, and convincing evidence is evidence which, when weighed against evidence opposed to it, clearly has more convincing power. It is evidence which satisfies and convinces you that "yes" should be the answer because of its greater weight and more convincing power.
This burden is known as the middle burden. The evidence required to meet this burden of proof must be greater than merely the greater weight of the credible evidence but less than beyond a reasonable doubt. If you have to guess what the answer should be after discussing all of the evidence which relates to a particular question, then the party having the burden of proof as to that question has not met the required burden.

Additionally, the jury was told, with respect to question three - the answer to which the guardian ad litem and the State wish changed:

Before Question 3 may be answered "yes," the petitioner must prove that Lamont. .. failed to visit or communicate with Deannia... for a period of six months or longer. This means that Lamont... did not visit and did not communicate with Deannia ... for six months or longer.
Incidental contact between Lamont. . . and Dean-nia ... does not prohibit you from finding that he failed to visit or communicate for the required period. Incidental contact means insignificant contact or contact which occurred merely by chance.
In calculating the period during which visitation did not occur, you should not include any periods during which Lamont. .. was prohibited by a judicial order from visiting with Deannia....

¶ 13. Two possible scenarios support the trial court's decision. The first is the combination of contradictory evidence, plus the absence at trial of the testimony of Elizabeth, a key witness to the crucial events. As a result, the jury may have concluded that the State failed to meet its burden of proof. Lamont testified that when he was incarcerated, Deannia was living with Elizabeth, and claimed he did not know that Deannia had been taken from Elizabeth until some weeks after the fact when Elizabeth wrote and told him. It is clear from his testimony that Lamont assumed that Elizabeth was visiting Deannia after she lost custody of Deannia, inasmuch as he continued writing to Elizabeth and inquiring about Deannia's welfare, as well as communicating certain thoughts and beliefs he wanted directed at Deannia. Lamont testified that while in prison he received no paperwork concerning Deannia's detention. This is contrary to the social worker's testimony that she faxed the paperwork notifying him of Deannia's detention to the prison where he was incarcerated. When asked why he did not contact the court, he said he spent most of his time in solitary confinement, where he was not permitted to use a pen. He also explained that he did not know any person, other than Elizabeth, to whom he could have written who might have had contact with Deannia. He said he was unaware of the names and addresses of the foster parents and of Deannia's social worker. He testified that his appearance in court in December 2002 was for another child, and that while there he never spoke to the social worker who was also assigned to Deannia's case. Again, this is contrary to the social worker's testimony, according to which she handed Lamont her business card containing her name, address and telephone number at the December 2002 hearing, and that she sent him paperwork after Deannia's detention.

¶ 14. The jury also heard that although Lamont's reading and writing skills were poor, indeed, he was eligible for social security benefits because of a learning disability, while in prison, he did manage to write and send letters and cards to Deannia and her mother every day except Sunday. He explained that the language he used in his letters, which the State and the guardian ad litem claimed was inappropriate, was the only language he knew, as he was incapable of looking up words in the dictionary.

¶ 15. There is no dispute that Lamont attempted to communicate with his daughter by writing her and her mother many letters, in which he asked how Deannia was doing and "talked" to Deannia. Given the young age of his daughter, it would have been impossible for him to write to her directly and expect her to retrieve the letters and read them herself. Clearly, he was dependent on third parties for his communications to reach his daughter. One of the major issues in this case is whether any of Lamont's attempts were successful.

¶ 16. The State and the guardian ad litem maintain that there were no communications made on behalf of Lamont via Elizabeth. They point to the testimony of the foster mother and two workers who supervised Elizabeth’s visits, all of whom claimed Elizabeth never brought any letters to her visits, and could not recall Elizabeth ever discussing Lamont with Deannia. However, since Elizabeth did not testify, the jury never had the benefit of hearing exactly what Elizabeth communicated to Deannia up until December 10, 2002, the beginning of the six-month period of abandonment alleged by the State. The jury could reasonably have inferred that Elizabeth talked and communicated to Deannia about Lamont's love and concern, particularly since Elizabeth and Lamont remained on good terms after his incarceration, and Elizabeth received numerous cards and letters from Lamont, in which he asked about and wrote to Deannia. The jury had been instructed that if they had to guess what an answer to a verdict question should be, then the party with the burden of proof did not meet the required burden. If the jury was dissatisfied with the evidence submitted to show a lack of communication by Elizabeth with Dean-nia on Lamont's behalf, or felt the question required them to guess at the answer, it was entitled to answer "no," the question of whether Lamont failed to communicate with Deannia.

¶ 17. There is another possibility that supports the jury's verdict. It deals with Lamont's contact with the social worker following his release. The social worker claimed she had to contact Lamont's mother to obtain his address. Lamont testified that he called the social worker two days after his release after getting her number from Elizabeth. He admitted that he missed at least one appointment, but referenced the June 4, 2003, meeting, and although he could not recall the exact date, he testified that he met with the social worker at her office and asked her if he could visit with his daughter. He told the jury that his request was denied because the social worker wanted him to complete an alcohol and drug assessment and to attend anger management classes before any visits would be scheduled. If the jury determined that Lamont communicated with Deannia via Elizabeth, and that on June 4, 2003, Lamont asked for visitation but was prevented from doing so by the social worker, by virtue of the detention order, the jury could properly answer question three — "[d]id Lamont. . . fail to visit or communicate with Deannia. . . for a period of six months or longer?" — "no," as they were instructed that:

In calculating the period during which visitation did not occur, you should not include any periods during which Lamont.. . was prohibited by a judicial order from visiting with Deannia ....

Inasmuch as the social worker had the power, under the detention order, to prevent visitation, this period would not be included in the six months, and the State would then fall short of the six-month minimum time period needed to prove abandonment. The trial court heard all of this testimony and evaluated the credibility of the witnesses. The trial court, while not specifically delineating what evidence it took into account, determined that credible evidence for the jury's verdict existed, and reasoned that the jury could properly come to the decision it did.

¶ 18. Thus, the trial court, as well as the jury, either found the State's witnesses' testimonies unpersuasive or insufficient, requiring them to guess at answers, or found that the State failed to prove the six-month period, as they believed Elizabeth communicated with the child on Lamont's behalf as late as December 10, 2002, and Lamont was denied visitation on June 4, 2003. In either event, the trial court concluded that the jury verdict should stand.

¶ 19. We are not oblivious to the many contradictions in Lamont's testimony, and we observe that the jury's verdict might not have been our verdict. However, the first step in a termination of parental rights proceeding is the fact-finding hearing "to determine whether grounds exist for the termination of parental rights .. .Wis. Stat. § 48.424(1). "During this step, the parent's rights are paramount." Sheboygan County DHHS v. Julie A.B., 2002 WI 95, ¶ 24, 255 Wis. 2d 170, 648 N.W.2d 402 (citation omitted). "During this step, the burden is on the government, and the parent enjoys a full complement of procedural rights." Id.

¶ 20. In reaching our conclusion that the trial court's holding should be affirmed, we note that the consequences of termination are profound, id., ¶ 23, as " 'termination of parental rights' means that, pursuant to a court order, all rights, powers, privileges, immunities, duties and obligations existing between parent and child are permanently severed," Wis. Stat. § 48.40(2). Additionally, "[b]ecause termination of parental rights interferes with a fundamental liberty interest, we apply strict scrutiny and require the state to show that termination is narrowly tailored to serve a compelling state interest." Monroe County DHS v. Kelli B., 2003 WI App 88, ¶ 8, 263 Wis. 2d 413, 662 N.W.2d 360, aff'd, 2004 WI 48, 271 Wis. 2d 51, 678 N.W.2d 831. As required, we give the trial court's decision substantial deference and conclude the trial court was not "clearly wrong" in refusing the State's and the guardian ad litem's requests. See Helmbrecht, 122 Wis. 2d at 110. Therefore, we affirm.

By the Court. — Order affirmed.

WEDEMEYER, RJ.

¶ 21. (dissenting). I disagree with the conclusion reached by the majority for the reasons that follow. Here, the evidence, even viewed in a light most favorable to Lamont, reveals the following. Lamont admitted that he did not have any visits with Deannia from September 2001, through the time the petition was filed in June 2003. Thus, it is undisputed that the answer to the first part of the special verdict question specifically addressing "visits" could not have been answered "No." The remaining issue then, is whether there is any credible evidence from which the jury could conclude that Lamont actually communicated with Deannia.

¶ 22. Lamont admits that he did not communicate directly with Deannia. He did not speak with her on the phone and all of the letters/cards he wrote were sent to Elizabeth, with the intent that Elizabeth would read them to Deannia. The record demonstrates, however, that as of July 2002, Deannia did not reside with Elizabeth. Thus, between July 2002, and June 20, 2003, Lamont's "communications" were not sent to Deannia or a person who had custody of Deannia. Lamont admitted that he was informed of the fact that Deannia was removed from Elizabeth's home. He changed his story repeatedly as to when he was informed of her removal. The record unequivocally reveals, nonetheless, that, at the latest, he was notified in August or September 2002, that Deannia was removed from Elizabeth's home.

¶ 23. Lamont argues that despite the child's removal, Elizabeth could have shared the letters/cards with Deannia during supervised visits. The record, however, conclusively refutes this contention. First, the social worker who attended the supervised visits testified that Deannia never mentioned Lamont, his letters, or his queries about Deannia. The social worker testified that she would be required to make copies of any letters or cards that Elizabeth read to, or shared with, Deannia. No copies were ever made. Second, the record reflects that December 10, 2002, was the last time Elizabeth had a visit with Deannia.

¶ 24. Accordingly, the record conclusively establishes that there could not have been any communication with Deannia, through Elizabeth, via the letters from December 10, 2002, until June 17, 2003, because Elizabeth did not have any contact with Deannia. This period of time satisfies the six-month abandonment period within the statute. Based on the foregoing, there is no credible evidence to support the jury's negative answer to special verdict question number three. Therefore, the trial court erred in denying the State's motion seeking to change the answer.

¶ 25. Lamont testified that he intended for Elizabeth to read the letters to Deannia. That intent, however, is insufficient to demonstrate actual contact between parent and child. It would result in an absurdity for this court to rule that a parent's intentions about communication, instead of what actually happened, were sufficient. A parent could write to any friend or relative who had no contact with the child, with the intent that the communication would be passed on to the child.

¶ 26. Attempts to communicate by the parent and a parent's intentions can be used by the jury in answering subsequent questions on the verdict, including whether a parent demonstrated good cause for the failure to communicate. In other words, Lamont could use the letters and his intentions to show that although he did not have any contact with Deannia, he tried to have contact and Elizabeth was unable or unwilling to convey his communication to Deannia. The jury in this case, however, did not proceed to answer the remaining questions on the verdict as to whether Lamont had good cause for abandoning Deannia. I would reverse and remand this case with directions to the trial court to change the answer to special verdict question number three from "No" to "Yes" and for determination of the remaining special verdict questions, which address the issue of good cause.

¶ 27. For these reasons, I respectfully dissent.

       On the court's own motion, this case was converted to a three-judge panel on July 15, 2005.

       A termination of parental rights proceeding is a bifurcated process. A jury determines whether the State has proved the grounds for the termination alleged in the petition, and if the State is successful, the trial court determines the appropriate disposition. See Wis. Stat. § 48.424.

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

       Lamont argues that this court does not have jurisdiction over this matter because the guardian ad litem filed the notice of appeal and the State simply joined in the appeal instead of the other way around. We reject Lamont's contention. Wisconsin Stat. § 48.235(7) plainly states that the guardian ad litem "may appeal, may participate in an appeal or may do neither." This clearly authorizes the guardian ad litem to file a notice of appeal. When the guardian ad litem has appealed, the State is obligated to participate as a representative of the public interest in certain circumstances. Lamont has not provided, nor can we find, anything which requires the State to file a separate notice of appeal, when the guardian ad litem has already done so, and the State's interests are aligned with those of the guardian ad litem.


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    In re the Termination of Parental Rights to Idella W., A Person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Lavelle W., Respondent-Appellant. [Case No. 2005AP1604] In re the Termination of Parental Rights to Lavelle W., Jr., a Person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Lavelle W., Respondent-Appellant. [Case No. 2005AP1605] In re the Termination of Parental Rights to Lardelle A., A Person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Lavelle W., Respondent-Appellant. [Case No. 2005AP1606]
    Court of Appeals

      Nos. 2005AP1604, 2005AP1605, 2005AP1606.

      Submitted on briefs November 1, 2005.

    Decided November 8, 2005.

    2005 WI App 266

      (Also reported in 708 N.W.2d 698.)

      On behalf of the respondent-appellant, the cause was submitted on the brief of Lynn Ellen Hackbarth, of the Law Offices of Lynn Hackbarth, of Milwaukee.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of E. Michael McCann, district attorney, and Mary M. Sowinski, assistant district attorney, of Milwaukee.
    On behalf of the guardian ad litem, a brief was filed by Danuta E. Kurczewski, of the guardian ad litem division of the Legal Aid Society of Milwaukee, Inc.
    Before Wedemeyer, EJ., Fine and Kessler, JJ.
   FINE, J.

¶ 1. Lavelle W. appeals from orders terminating his parental rights to Idella W., Lavelle W., Jr., and Lardelle A. He contends that he was denied meaningful participation in the proceedings, and, also, that there was insufficient evidence for the trial court to conclude that termination of his parental rights was in the children's best interests. We do not reach Lavelle W's second argument, however, because we conclude that he was not able to meaningfully participate.

¶ 2. Birth-parents "have constitutionally protected rights to raise their children as they see fit, and these rights may only be circumscribed if the government proves that there is a 'powerful countervailing interest.'" Richard D. v. Rebecca G., 228 Wis. 2d 658, 661, 599 N.W.2d 90, 92 (Ct. App. 1999) (quoted sources and one internal quotation mark omitted). Thus, "unless the birth-parent has either done something, or failed to do something, to trigger erosion of the constitutional wall that prevents the State from intruding on the birth-parent's constitutionally protected rights, the fact that the child might be better off somewhere else is an insufficient reason to breach that wall." Id,., 228 Wis. 2d at 663 n.4, 599 N.W.2d at 93 n.4. Accordingly, "a proceeding to terminate parental rights addresses a fundamental right which requires judicial protection." D.G. v. F.C., 152 Wis. 2d 159, 166, 448 N.W.2d 239, 242 (Ct. App. 1989). But "judicial protection" is meaningless unless a person whose fundamental rights may be abridged has an "opportunity to be heard at a meaningful time and in a meaningful manner." Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680, 701, 530 N.W.2d 34, 42 (Ct. App. 1995); see also D.G., 152 Wis. 2d at 167, 448 N.W.2d at 243 ("We view the ability of a respondent in a termination of parental rights proceeding to meaningfully participate as a right which requires similar protection by the court."). Whether participation has been "meaningful" is a constitutional fact subject to our independent review. Rhonda R.D., 191 Wis. 2d at 700, 530 N.W.2d at 42. The trial court, however, has discretion on how to guarantee that a birth parent's participation in proceedings to terminate his or her parental rights is meaningful. See D.G., 152 Wis. 2d at 162-163, 448 N.W.2d at 240-241.

¶ 3. Ideally, a person whose parental rights the State seeks to terminate should be present at the proceedings, so he or she can not only see and hear what is going on and assess the witnesses' demeanor, but also assist his or her lawyer without any undue difficulties. The trial court and all the participants recognized this, but Lavelle W was, as the assistant district attorney representing the State told the trial court, in the "Witness Protection Program" of the United States Bureau of Prisons. Nevertheless, everyone involved in the case believed that Lavelle W. would be produced for the hearings. That changed, however, apparently at the last minute, one week before the trial was scheduled to start, as the assistant district attorney explained to the trial court:

I learned yesterday afternoon from Carol Kraft, the Assistant U.S. Attorney for Milwaukee, who is in charge of his case, that the plan that we all had, that he was going to be produced for the trial, is no longer going to happen. She apparently — I don't know if it was from Washington or where she got the call from, but somebody said, 'We are not bringing him. This is a civil case, and we don't bring prisoners for civil cases." Now, I am not sure, I believe that is a standard policy, so I am not sure whether he is not being produced because he is a federal prisoner, period, or because he is a federal prisoner in the Witness Protection Program. I don't know the status of that, and I haven't gotten any further answers.

The assistant district attorney also told the trial court that video-conferencing was not possible, given constraints that were not fully explained on the Record, other than there was no suitable video-conferencing facility where Lavelle W was living or to which he could be easily taken. Lavelle W's lawyer explained that he and Kraft tried to call the person who told Kraft that Lavelle W. would not be produced, but they were unsuccessful, and, moreover, that they had explored a videoconferencing setup but that he was uncertain that it could be arranged before the trial was set to start. Lavelle W.'s lawyer was, however, sensitive to the need for Lavelle W to be able to meaningfully participate, and that using the telephone was the least attractive alternative:

I'm just wondering if before we take this approach of participation by telephone, I think we need to explore all the other options, in terms of making sure that everything is squared away, have my client either video-conferenced or actually physically brought here before we start resorting to a last resort. And I think this phone participation is a last resort.

¶ 4. The trial court ultimately decided to go with a telephone hookup, although it recognized potential problems:

And I am going to look at it very strictly, quite frankly, that we can hear from every single spot in the courtroom. And it is not a good courtroom for the acoustics. I mean, phones don't always pick up voices. Very rarely do people on the phone line hear everything that is going on.

Although the Record indicates that the trial court also spoke with the assistant United States attorney and tried to informally cut through the bureaucracy, there were formal avenues to get Lavelle W into court that were not explored.

¶ 5. 28 C.F.R. §§ 527.30 and 527.31 guide the United States Bureau of Prisons in determining when and under what circumstances a federal prisoner will be produced when he or she is needed in state court, and, contrary to what Kraft was apparently told, the regulations do envision producing federal prisoners for civil proceedings. Section 527.30 provides:

The Bureau of Prisons will consider a request made on behalf of a state or local court that an inmate he transferred to the physical custody of state or local agents pursuant to state writ of habeas corpus ad prosequendum or ad testificandum. The Warden at the institution in which the inmate is confined is authorized to approve this transfer in accordance with the provisions of this rule.

Section 527.31 provides:

(a) These procedures apply to state and federal inmates serving sentences in federal institutions, and shall be followed prior to an inmate's transfer to state or local agents other than through the Interstate Agreement on Detainers.
(b) The Warden shall authorize transfer only when satisfied that the inmate's appearance is necessary, that state and local arrangements are satisfactory, that the safety or other interests of the inmate (such as an imminent parole hearing) are not seriously jeopardized, and that federal interests, which include those of the public, will not be interfered with, or harmed. Authorization may not be given where substantial concern exists over any of these considerations.
(c) The request for transfer of custody to state agents shall be made by the prosecutor or other authority who acts on behalf of the court and shall be directed to the Warden of the institution in which the inmate is confined. The request shall be made by letter. The request shall indicate the need for appearance of the inmate, name of the court, nature of the action, date of the requested appearance, name and phone number of the state agency or other organization with responsibility for transporting the inmate, the name and location where the inmate will be confined during legal proceedings, and anticipated date of return. For civil cases, the request shall also indicate the reason that production on writ is necessary and some other alternative is not available. The applying authority shall provide either at the time of application or with the agent assuming custody, a statement signed by an authorized official that state or local officials with custody will provide for the safekeeping, custody, and care of the inmate, will assume full responsibility for that custody, and will return the inmate to Bureau of Prisons' custody promptly on conclusion of the inmate's appearance in the state or local proceedings for which the writ is issued.
(d) A certified copy of the writ (one with the Seal of the Court) must be received at the institution prior to release of the inmate. Institution staff shall verify the authenticity of the writ.
(e) Institution staff shall maintain contact with the state or local law enforcement agency with responsibility for transfer of the inmate to determine the exact date and time for transfer of custody. If the inmate is awaiting federal trial or has federal civil proceedings pending, staff must clear the transfer through the U.S. Attorney.
(f) Institution staff shall determine from the state or local agency the names of the agents assuming custody. Staff must carefully examine the credentials of the agents assuming custody. In any doubtful case, verification should be sought.
(g) Transfers in civil cases pursuant to a writ of habeas corpus ad testificandum must be cleared through both the Regional Counsel and the Warden. Transfer ordinarily shall be recommended only if the case is substantial, where testimony cannot be obtained through alternative means such as depositions or interrogatories, and where security arrangements permit. Postponement of the production until after the inmate's release from federal custody will always be considered, particularly if release is within twelve months.
(h) Release of inmates classified as Central Inmate Monitoring Cases requires review with and/or coordination by appropriate authorities in accordance with the provisions of 28 CFR part 524, subpart F.

(Emphasis added.)

¶ 6. These provisions were a place for the parties to start, and, certainly, as we have seen, a parent's interest in not having his or her parental rights terminated is, to use the language of 28 C.ER. § 527.31(g), "substantial." But there was another avenue as well. Under the federal "all writs" act, 28 U.S.C. § 1651(a) ("The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.") and the provision authorizing federal courts to issue writs of habeas corpus ad testificandum for prisoners in the federal prison system, 28 U.S.C. § 2241(c)(5) ("The writ of habeas corpus shall not extend to a prisoner unless ... [i]t is necessary to bring him into court to testify or for trial."), a federal court in Milwaukee could have required that the Bureau of Prisons produce Lavelle W. for the termination-of-parental-rights trial. See Barber v. Page, 390 U.S. 719, 724 (1968) ("28 U.S.C. § 2241(c)(5) gives federal courts the power to issue writs of habeas corpus ad testifican-dum at the request of state prosecutorial authorities."); Gordon v. Woodring, No. C04-04182JF, 2005 WL 464636, at *2-*3 (N.D. Cal. Feb. 28,2005) (federal writ of habeas corpus ad testificandum may be used as an alternative to the procedures in 28 C.F.R. §§ 527.30 and 527.31) (the prisoner need not be held within the territorial jurisdiction of the court).

¶ 7. There is nothing in the Record that indicates that any of these procedures, either under the applicable statutes or under the regulations, were explored before resorting to what Lavelle Ws lawyer called the "last resort" — the telephone. Moreover, because the State is the petitioner, D.G. recognizes that the trial court would have been within its discretion to order the State to absorb the costs of producing Lavelle W. for the hearings. D.G., 152 Wis. 2d at 168-169, 448 N.W.2d at 243.

¶ 8. Our discussion so far would be academic if the telephone solution allowed Lavelle W to meaningfully participate in the termination-of-parental-rights proceedings. See Rhonda R.D., 191 Wis. 2d at 701-702, 530 N.W.2d at 42-43 (whether ability to participate is "meaningful" must be determined case-by-case). Although the trial court concluded that Lavelle W was able to meaningfully participate, that is a matter, that, as noted, we review de novo. In our view, any alternative to a parent's personal presence at a proceeding to terminate his or her parental rights must, unless either the parent knowingly waives this right or the ministerial nature of the proceedings make personal-presence unnecessary, he functionally equivalent to personal presence: the parent must be able to assess the witnesses, confer with his or her lawyer, and, of course, hear everything that is going on. The Record here reveals that at times Lavelle W's ability to hear the proceedings faded in and out, and, at least at one point, was temporarily interrupted by static.

¶ 9. Although it may very well be that Lavelle W was able to hear significantly more than he was unable to hear, that is not sufficient because periodic or sporadic inaudibility, both of which marred Lavelle W's connection to the proceedings, significantly truncates a party's ability to fully comprehend what is going on, and thus hinders the ability to get a feel for the proceedings — a mix of spoken words and body language — and, therefore, meaningfully consult with his or her lawyer concerning not only the testimony but also what everyone else may be doing in court. In sum, we conclude that Lavelle W was not able to meaningfully participate in the proceedings, and, accordingly, we must vacate the orders terminating his parental rights and remand to the trial court for further proceedings consistent with this opinion.

By the Court. — Orders vacated and cause remanded.


author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Martin D. Triplett, Defendant-Appellant.

    Court of Appeals

      No. 2004AP2032-CR.

      Submitted on briefs September 14, 2005.

      —Decided November 9, 2005.

    2005 WI App 255
    (Also reported in 707 N.W.2d 881.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Syovata K. Edari, assistant state public defender of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Mark A. Neuser, assistant attorney general.
    Before Snyder, PJ., Brown and Nettesheim, JJ.

       Petition to review denied 1-20-06.

   BROWN, J.

¶ 1. Martin D. Triplett appeals his judgment of conviction for possession with intent to deliver cocaine and an order denying his motion for postconviction relief. Officers discovered the cocaine during a Terry frisk for weapons. It fell down Triplett's pants leg when one of the officers gripped his belt loops and shook the waistband of his pants. Triplett contends that shaking his waistband went beyond the scope of a permissible Terry search and that his trial counsel provided ineffective assistance for not moving to suppress the fruits of the search. We disagree. The officer's manipulation of Triplett's waistband was a minimally intrusive exploration of Triplett's outer clothing designed to discover whether Triplett had a weapon.

¶ 2. On March 18, 2002, a group of police officers and detectives reported to a Milwaukee residence to investigate complaints about drug dealing. Triplett walked into the kitchen through the rear door during the investigation. An officer made contact with him, inquiring why he was there. Triplett responded that he came to have his truck fixed. Another officer joined them while the other two officers stayed in the living room with several other people. The officer noticed that Triplett's hands shook and perspiration appeared on his forehead. He appeared very nervous and asked to use the bathroom.

¶ 3. The officer wished to question Triplett about his knowledge of any drug sales in the residence. He suspected that Triplett might have come to buy drugs and attributed Triplett's apparent discomfort to an unwillingness to discuss such matters in front of the residents in the other room. He attempted to put Triplett more at ease by asking him to step into a bedroom out of the others' sight.

¶ 4. Triplett complied, and the officer noted that he became even more agitated, renewing several times his request to use the bathroom. The officer told him that he could use the bathroom but would have to be patted down first. Because of his conduct, the officer wanted to ensure that Triplett would not come out of the bathroom with a weapon. The defendant said, "okay," and complied.

¶ 5. The officer proceeded with the patdown. When he got to Triplett's waist area, he found it difficult to "get a good feel for that area" because of Triplett's large frame and the amount of clothing he was wearing. Triplett had a winter coat on that hung slightly below the waist, and his stomach hung slightly over the waistband. He was 5'11" and roughly 245 pounds. The officer thought he could get a better patdown if he first loosened any weapons that might be hidden in the waistband, so he tugged on Triplett's belt loops and gave the waistband a few shakes. As he shook, a clear plastic bag dropped from the bottom of Triplett's right pants leg. This bag contained several smaller corner-cut bags with an off-white chunky substance, which the officer believed from his experience and training to be cocaine base.

¶ 6. The officer informed Triplett he was under arrest. At that point, he terminated the patdown and proceeded with a custodial search. He recovered $1126 in cash, a cell phone, and a pager.

¶ 7. The State charged Triplett with violating Wis. Stat. § 961.41(lm)(cm)2 (2001-02), possession with intent to deliver cocaine base, a charge to which he pled guilty. Triplett subsequently moved for postconviction relief to withdraw his plea, claiming that trial counsel was ineffective because he never moved to suppress the evidence. He presented a quite different account of the facts at the postconviction hearing. According to Trip-lett, the police conducted two searches: first they patted him down in the kitchen and then conducted a subsequent strip search in the bedroom. He claimed he informed trial counsel of this search, but trial counsel testified Triplett had said nothing about a strip search and he first heard that account of events when he read the presentence investigation report. Counsel maintained that when he asked Triplett about the new account, Triplett explained that he had been "nervous when he talked to the PSI writer."

¶ 8. The circuit court denied Triplett's motion. The court found both the officer who conducted the search and trial counsel to be credible witnesses. By contrast, it found Triplett's strip search version "incredible." It also concluded that the manner in which the officer shook Triplett's pants fell within the scope of a permissible Terry frisk. For these reasons, the court determined that trial counsel did not function ineffectively. Triplett appeals.

¶ 9. We address first Triplett's renewed contention that a strip search occurred and accept the findings of the circuit court. That court, not this court, had the opportunity to observe the witnesses and their demeanor in the courtroom. See Wis. Stat. § 805.17(2) ("Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."); Chapman v. State, 69 Wis. 2d 581, 583-84, 230 N.W.2d 824 (1975). We see nothing unreasonable about its choice to credit the testimony of defense counsel and the arresting officer and to disbelieve Triplett. See id.

¶ 10. Next we consider whether the manner in which the arresting officer conducted his frisk for weapons exceeded the scope permitted by Terry. Both parties cite a wealth of authority in support of their respective positions, a fact that is not surprising in light of Terry's refusal to adopt any bright-line rule for what constitutes a reasonable search for weapons. Rather, Terry recognizes that the proper scope of such a search depends on the unique circumstances in each individual case: "We need not develop at length in this case, however, the limitations which the Fourth Amendment places upon a protective seizure and search for weapons. These limitations will have to be developed in the concrete factual circumstances of individual cases." Terry v. Ohio, 392 U.S. 1, 29 (1968).

¶ 11. Despite the fact-specific nature of our analysis, we glean from the case law several useful guiding principles. First, an officer should confine his or her search "strictly to what [is] minimally necessary" to learn whether an individual is armed. Id. at 30. Our supreme court has stated that a proper investigative patdown "involves only a search that is carefully limited to a pat-down of the outer clothing of a suspect," State v. Richardson, 156 Wis. 2d 128, 146-47, 456 N.W.2d 830 (1990). It has defined "patdown" to mean a search characterized by "careful exploration of the outer surfaces of a person's clothing." See State v. Washington, 134 Wis. 2d 108, 122; 396 N.W.2d 156 (1986) (citation omitted), abrogated on other grounds by State v. Swanson, 164 Wis. 2d 437, 475 N.W.2d 148 (1991), abrogated on other grounds by State v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695 N.W.2d 277. But see, e.g., United States v. Hill, 545 F.2d 1191, 1192-93 (9th Cir. 1976) (upholding search in which officer seeking information from an individual near the scene of a bank robbery lifted the individual's shirt when he detected a bulge; commenting that "[a]ny limited intrusion designed to discover guns, knives, clubs or other instruments of assault [is] permissible" (emphasis added.)).

¶ 12. Our supreme court has not, however, addressed the scope of a permissible Terry search where an effective patdown is impossible. The prevailing rule seems to be that an officer is entitled not just to a patdown but to an effective patdown in which he or she can reasonably ascertain whether the subject of the patdown has a weapon; where an effective patdown is not possible, the officer may take other action reasonably necessary to discover a weapon. See, e.g., State v. Vasquez, 807 P.2d 520, 524 (Ariz. 1991) (where officer's patdown could not reveal whether a jacket contained weapons because of its bulkiness, officer acted reasonably in reaching into the pocket); State v. Hudson, 874 P.2d 160, 163 (Wash. 1994) (recognizing that in "cases where the patdown is inconclusive ... reaching into the clothing is the only reasonable course of action for the police officer to follow"); Hodges v. State, 678 So. 2d 1049, 1051 (Ala. 1996) (holding officer did not have to pat down outer part of a hard leather boot before lifting defendant's pants leg to determine whether boot had a weapon inside because a patdown probably would have revealed nothing and "would not have lessened the police officer's concerns for his own safety"); State v. Evans, 618 N.E.2d 162, 171 (Ohio 1993) (stating an officer may recover an item if its hardness, size, and density warrant his or her belief that it could be a weapon and the shape or nature of the item is not discernible through outer clothing, particularly where the clothing is bulky).

¶ 13. We find these cases persuasive. Terry teaches that "there is 'no ready test for determining reasonableness other than by balancing the need to search... against the invasion which the search ... entails,'" see Terry, 392 U.S. at 21 (citation omitted), and informs that reasonableness depends on whether the officer's action "was reasonably related in scope to the circumstances which justified the interference in the first place," id. at 20. By recognizing that an officer may go beyond the scope of a traditional patdown of the outer clothing when this type of investigatory search for weapons would be ineffective, we remain faithful to the Terry court's policy of assessing each case on the basis of its own facts and circumstances rather than adopting an overly rigid bright-line test.

¶ 14. Applying these principals to the facts of this case, we hold that the officer limited his degree of interference with Triplett's person to what was reasonably necessary under the circumstances. The officer could not tell whether Triplett had any objects hidden in his waistband because of Triplett's bulky frame and heavy clothing. In other words, the officer could not get an effective patdown. In concluding that his alternative to the patdown was reasonable, we make two observations. First, the officer testified that he shook Triplett's waistband by his belt loops in order to loosen any possible weapons, so as to make the patdown effective. The fact that he acted with the intent to facilitate a traditional patdown supports that he only sought to discover any possible weapons. Second, we note that shaking a waistband by tugging on a belt loop confines the alternative method of looking for weapons to manipulating the outer clothing. Thus, although it may not qualify as a patdown, it is highly similar. Indeed, one might argue that it intruded less upon the sanctity of Triplett's person than a traditional patdown. Terry noted that in a traditional patdown, the officer must "feel with sensitive fingers every portion of the [person's] body." Terry, 392 U.S. at 17 & n.13 (citation omitted). The officer was not feeling Triplett's body with "sensitive fingers" when he tugged on Triplett's belt loops. Further, the fact that the officer touched only Triplett's outer clothing makes this officer's actions less intrusive than the actions approved in the foreign state cases cited above.

¶ 15. Indeed, we find this case very factually similar to State v. Greene, 97 P.3d 472 (Idaho Ct. App. 2004), review denied, No. 28746, 2004 Ida. App. LEXIS 86 (Idaho Ct. App. Sept. 13, 2004). In Greene, the officer grabbed and shook the back of the waistband on the defendant's pants after the defendant shoved something in his pants while the officer attempted to pat him down. Id. at 473-74. The court upheld the denial of Greene's motion to suppress the bag of cocaine that fell out of Greene's pants, noting that the officer's response was the "least intrusive means available" to discover whether Greene had a weapon on him. Id. at 473, 476.

¶ 16. Triplett points out that in Greene, the defendant was evasive when the officer questioned him, appeared nervous and intoxicated, and had put his hands in his pockets several times. See id. at 473. According to Triplett, the facts here are distinguishable. Triplett was not intoxicated, did not make furtive movements as if to hide an object, and did not evade police questioning.

¶ 17. We disagree with Triplett's analysis. The officers in this case encountered Triplett in a suspected drug house, a place that one could expect to be dangerous by its very nature. Unlike Greene, who was in handcuffs at the time the officer pulled his waistband, see id. at 473, Triplett had free use of his hands and intended to enter a bathroom where the officers would not be able to see his movements. Even if a potential weapon in his waistband had been hard to reach at the time, Triplett could easily retrieve it after removing or rearranging his clothes in the bathroom. The officer who manipulated his waistband acted reasonably.

¶ 18. We distinguish the two cases Triplett relies upon to support a contrary conclusion. First, he cites State v. Ford, 211 Wis. 2d 741, 742, 744, 750, 565 N.W.2d 286 (Ct. App. 1997), in which we held that the officer violated Terry when he pulled out the waistband of Ford's boxer shorts and shined a flashlight into them. Ford was not limited to a simple manipulation of Ford's outer clothing. Rather, the officer looked inside his clothing at intimate parts of his body. Certainly, that circumstance fits the definition of "intrusive." We also distinguish State v. Smith, 693 A.2d 749, 754 (Md. 1997), in which the officer decided to "double check" his patdown of the subject by pulling the person's shirt back so he could see the waistband. The officer here was not "double checking" and attempting to "verify" what he had learned from a previous patdown. He had not learned anything from the previous patdown, and his attempt to loosen any weapons by tugging at the waistband was designed to make a patdown effective.

¶ 19. We hold that the manner in which the officer searched Triplett's waistband for weapons stayed within the bounds of Terry. The infringement on the sanctity of Triplett's person was a minimally invasive manipulation of his outer clothing designed to facilitate a patdown. The officer had a right to make his patdown effective, and shaking Triplett's waistband was a reasonable means of accomplishing this objective. We affirm.

By the Court. — Judgment and order affirmed.

        See Terry v. Ohio, 392 U.S. 1 (1968).

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

       Triplett does not contend that the officers lacked the reasonable suspicion to conduct a Terry frisk. See Terry, 392 U.S. at 27 (officer may frisk an individual if he or she reasonably believes the person may have a weapon).


author: NETTESHEIM, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Joseph L. Smet, Defendant-Appellant.

    Court of Appeals

      No. 2005AP690-CR.

      Submitted on briefs September 29, 2005.

      —Decided November 9, 2005.

    2005 WI App 263
    (Also reported in 709 N.W.2d 474.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher A. Mutschler, of Anderegg & Mutschler, LLP of Fond du Lac.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and David J. Becker, assistant attorney general, and the supplemental brief of Scot Mortier, assistant district attorney for Fond du Lac county.
    Before Snyder, EJ., Nettesheim and Anderson, JJ.

       Petition to review denied 1-20-06.

   NETTESHEIM, J.

¶ 1. Joseph L. Smet appeals from a judgment of conviction for operating a motor vehicle with "a detectable amount of a restricted controlled substance" in his blood, contrary to Wis. Stat. § 346.63(l)(am) (2003-04). On appeal, Smet challenges the constitutionality of this statute. He contends that it exceeds the scope of the legislature's police power and thereby violates the constitutional guarantees of due process, fundamental fairness and equal protection. We uphold the trial court's ruling that the statute passes constitutional muster and affirm the judgment of conviction.

FACTS

¶ 2. The relevant facts are straightforward and are not in dispute. On June 1, 2004, Smet was arrested by a Fond du Lac County Sheriffs Deputy on suspicion of operating a motor vehicle while intoxicated. The arresting officer transported Smet to St. Agnes Hospital where Smet agreed to submit to a chemical test of his blood. The analysis of Smet's blood showed no measurable concentration of ethanol, but did reveal a measurable concentration of 3.2 nanograms per milliliter of delta-9-THC, the primary active ingredient in marijuana, and 3.2 nanograms per milliliter of 11-hydroxy-THC and 95 nanograms per milliliter of carboxy-THC, two metabolites of THC. As a result, a criminal complaint charged Smet with operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood, contrary to Wis. Stat. § 346.63(1)(am),

¶ 3. Smet moved to dismiss the complaint on the grounds that Wis. Stat. § 346.63(l)(am) is unconstitutional. He contended that the statute exceeds the legislature's police power and violates his rights to due process, fundamental fairness and equal protection, as guaranteed to him under both the federal and state constitutions. The trial court rejected Smet's arguments. The parties then stipulated to a pro forma trial at which the trial court found Smet guilty as a repeat offender. Smet appeals from the resulting judgment of conviction.

DISCUSSION

¶ 4. On appeal, Smet renews the constitutional challenges to Wis. Stat. § 346.63(1)(am) that he raised in the trial court. The statute provides:

346.63 Operating under influence of intoxicant or other drug. (1) No person may drive or operate a motor vehicle while:
(am) The person has a detectable amount of a restricted controlled substance in his or her blood.

"Restricted controlled substance" means any of the following:

(a) A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.
(b) A controlled substance analog, as defined in s. 961.01(4m), of a controlled substance described in par. (a).
(c) Cocaine or any of its metabolites.
(d) Methamphetamine.
(e) Delta-9-tetahydrocannabinol.

Wis. Stat. § 340.01(50m). Section 346.63(l)(am) applies only to illegal restricted controlled substances because § 346.63(l)(d) provides an affirmative defense if the defendant has a prescription for the substances.

¶ 5. The constitutionality of a statute presents a question of law that we review de novo. State v. Cole, 2003 WI 112, ¶ 10, 264 Wis. 2d 520, 665 N.W.2d 328. We also must bear in mind the general principles that govern the review of a constitutional challenge. See id., ¶ 11. Notably, we presume that a legislative enactment is constitutional, "indulg[ing] every presumption to sustain the law if at all possible," and resolving any doubt in favor of constitutionality. Id. (citation omitted). The challenging party thus faces a heavy burden and must prove unconstitutionality beyond a reasonable doubt. Id. With these principles in mind, we address Smet's specific constitutional challenges.

1. Police Power and Due Process

¶ 6. Smet first contends that Wis. Stat. § 346.63(l)(am), requiring only proof of "a detectable amount" of a banned substance and not proof of impairment, represents an unconstitutional overstep by the legislature in the exercise of its police power. This overstep, he submits, violates his rights to due process and fundamental fairness.

¶ 7. The police power is the inherent power of the government to promote the general welfare, and covers all matters having a reasonable relation to the protection of the public health, safety and general welfare. State v. McManus, 152 Wis. 2d 113, 130, 447 N.W.2d 654 (1989). When the exercise of the police power is challenged on due process grounds, the test is whether the means chosen have a reasonable and rational relationship to the purpose or object of the enactment. Kahn v. McCormack, 99 Wis. 2d 382, 385, 299 N.W.2d 279 (Ct. App. 1980). If they do, and the object is a real and proper one, the exercise of the police power is valid. Id. Accord McManus, 152 Wis. 2d at 130.

¶ 8. Because the driving of an automobile upon public roads is not a property right but a privilege, it is subject to reasonable regulation under the police power in the interest of public safety and welfare. State v. Stehlek, 262 Wis. 642, 646, 56 N.W.2d 514 (1953). Smet agrees that maintaining safe roadways is a proper object of the police power. He questions, however, whether there exists a reasonable and rational relationship between that legislative objective and Wis. Stat. § 346.63(l)(am) because the statute requires no showing of impairment. The clear implication of Smet's position is that it lies within this court's authority to invalidate this legislative enactment.

¶ 9. The State counters that while some cases would permit us to determine whether the means are reasonably and rationally related to the ends, others such as Bisenius v. Karns, 42 Wis. 2d 42, 165 N.W.2d 377, appeal dismissed, 395 U.S. 709 (1969), and State v. Hermann, 164 Wis. 2d 269, 474 N.W.2d 906 (Ct. App. 1991), teach otherwise:

We are uneasy with this balancing and weighing concept of the judicial role in testing the constitutionality of a police power statute. There is too much of a temptation to ac putting of a judicial thumb on the scales with judges substituting their own evaluation of alternatives for that of the legislature. We would hold that, once within the area of proper exercise of police power, it is for the legislature to determine what regulations, restraints or prohibitions are reasonably required to protect the public safety and only the abrogation of a basic and substantial individual liberty would justify judicial intervention to set aside the legislative enactments.

Bisenius, 42 Wis. 2d at 54 (footnote omitted); see also Hermann, 164 Wis. 2d at 285. The State then posits that, despite possible imprecision in the case law and "independent of the police powers doctrine," we nonetheless should examine whether the legislation bears a reasonable and rational relationship to the purpose because that is the test mandated by a due process analysis.

¶ 10. The State may be overstating the confusion in the law. We need not decide here, however, whether Bisenius in fact holds that a challenger's only recourse is the ballot box, or whether perhaps it is simply a reminder of the heavy burden the challenger bears— proof beyond a reasonable doubt. We leave the assessment of the court's role in evaluating the reasonableness of legislative measures for another day when that issue is more squarely before us.

¶ 11. We also question the State's position insofar as it treats as distinct due process and police power challenges. The concepts actually are intertwined where the objection is to the legislative means employed. See McManus, 152 Wis. 2d at 130; see also Kahn, 99 Wis. 2d at 385. Therefore, having determined that the safety of the state's roadways is a proper area of exercise of the police power, see Stehlek, 262 Wis. at 646, and since neither party objects, we will proceed with the next step of Smet's due process challenge, which is to examine whether the statute is a reasonable and rational means to the legislative end.

2. Reasonable and Rational Relationship

¶ 12. Smet argues that the statute violates his right to due process because it lacks a reasonable and rational underpinning since, "[ajlmost comically," it is situated in Wis. Stat. § 346.63, entitled "Operating under influence of intoxicant or other drug," yet impairment at the time of driving always has been "the sine qua non of any prosecution under § 346.63."

¶ 13. On its face, this argument fails for at least two reasons. First, contrary to Smet's assertions, proof of impairment is not necessary for all other Wis. Stat. § 346.63 violations. See McManus, 152 Wis. 2d at 131. Impairment has not been a prerequisite for prosecution under the "driving under the influence" statute since 1981. See State v. Muehlenberg, 118 Wis. 2d 502, 505, 347 N.W.2d 914 (Ct. App. 1984). "The statute represents a legislative determination that public safety is per se endangered when a person drives a motor vehicle while having a specified concentration of.. . alcohol in the blood." Id. (footnote omitted). The placement of § 346.63(1)(am) in this statute plainly signifies an endorsement of that same legislative determination as it relates to drivers with a detectable concentration in their blood of various controlled substances.

¶ 14. Second, the challenged enactment's placement in a statute captioned "Operating under influence of intoxicant or other drug" is of no significance. A section caption is not part of the statute. State v. Lindsey A.F., 2003 WI 63, ¶ 14, 262 Wis. 2d 200, 663 N.W.2d 757; Wis. Stat. § 990.001(6). No weight, therefore, need be given to it.

¶ 15. Smet's further "impairment" argument also falls substantively short. He argues that prosecuting a person under a statute requiring only proof of a detectable level of a restricted controlled substance in the blood and not proof of impairment is as absurd as prosecuting someone for carrying a concealed weapon who never had a weapon on his or her person, or for receiving stolen property if he or she never took possession of stolen property.

¶ 16. The State's rejoinder is an analogy to speeding laws, a comparison we find more apt. Speeding laws require no showing of a threat to the public safety by every speeder. Rather, the legislature has determined that speeders as a class pose a threat to public safety. Whether or not one's driving in a particular instance actually is impaired by immoderate speed, excess speed alone is enough to result in prosecution. Similarly, a particular driver with a detectable amount of a restricted controlled substance in his or her blood may or may not be impaired on a given occasion. Nonetheless, the legislature reasonably and rationally could have determined that, as a class, those who drive with unprescribed illegal chemicals in their blood represent a threat to public safety.

¶ 17. The legislature also reasonably and rationally could have concluded that the proscribed substances range widely in purity and potency and thus may be unpredictable in their duration and effect, see State v. Phillips, 873 P.2d 706, 708 (Ariz. Ct. App. 1994), or that, because no reliable measure of illicit drug impairment exists, the more prudent course is to ban any measure of marijuana metabolites in a driver's system. See State v. Comried, 693 N.W.2d 773, 776 (Iowa 2005). The legislature therefore could have concluded that maintenance of "absolute sobriety" in terms of these restricted controlled substances is reasonably and rationally related to public safety. Cf. Wis. Stat. § 346.63(2m) (prohibiting a person under the legal drinking age from operating a motor vehicle if he or she has a blood alcohol concentration greater than 0.0).

¶ 18. Smet next contends that Wis. Stat. § 346.63(l)(am) is fundamentally unfair, offending the "true concern" of due process. See State ex rel. Lyons v. DeValk, 47 Wis. 2d 200, 205, 177 N.W.2d 106 (1970). He proposes a scenario in which a college student is exposed to a roommate's marijuana smoking; after drinking a beer, the student then is stopped while driving home for "some minor traffic violation"; the beer odor on the student's breath prompts a blood draw, which reveals THC metabolites from the secondhand smoke; and the "truly innocent" student is prosecuted under this law.

¶ 19. We reject this argument. First, to the extent Smet's contention is that the statute is unconstitutional as applied, his argument is waived because he pleaded guilty. See State v. Trochinski, 2002 WI 56, ¶ 34 n.15, 253 Wis. 2d 38, 644 N.W.2d 891. His "innocent student" hypothetical likewise miscarries because he has no standing to complain that it is unconstitutionally over-broad. Outside of a First Amendment context, a person to whom a statute constitutionally may be applied will not he heard to challenge that statute on the ground that, in other situations not before the court, it conceivably may be applied unconstitutionally to others. See City of Milwaukee v. Wilson, 96 Wis. 2d 11, 19-20, 291 N.W.2d 452 (1980).

¶ 20. We are satisfied that prohibiting operation of a motor vehicle while having a detectable amount of a restricted controlled substance in one's blood bears a reasonable and rational relationship to the purpose or objective of the statute, and that the statute is not fundamentally unfair. We see no due process violation.

3. Equal Protection

¶ 21. Smet's final argument is that the statute violates the Equal Protection Clause. When a statute is challenged on equal protection grounds, we first must determine the level of judicial scrutiny the statute requires. State v. Thomas, 2004 WI App 115, ¶ 25, 274 Wis. 2d 513, 683 N.W.2d 497, review denied, 2004 WI 138, 276 Wis. 2d 28, 689 N.W.2d 56 (Wis. Sep. 20, 2004). We accord it strict scrutiny if the legislative classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. Id. Otherwise, the appropriate analysis is whether the legislative classification rationally furthers a purpose identified by the legislature. Id. This inquiry is largely the same as that conducted under the due process analysis. State v. Jorgensen, 2003 WI 105, ¶ 32, 264 Wis. 2d 157, 667 N.W.2d 318. Under this "rational basis" test, equal protection is violated only if the classification rests upon grounds wholly irrelevant to the achievement of the state's objective. Thomas, 274 Wis. 2d 513, ¶ 25. The legislature need not state the purpose or rationale justifying the classification. Id. As long as there is a plausible explanation for the classification, we will uphold the law. Id.

¶ 22. In an effort to secure strict scrutiny, Smet resurrects his impairment argument. He asserts that strict scrutiny is required because the statute creates a classification of drivers for whom impairment need not be proved, and that this classification interferes with his fundamental right to present a defense relative to similarly situated drivers. He begins by listing numerous defenses available to other drivers charged with violating Wis. Stat. § 346.63(1), namely, allegedly drunk drivers. He then asserts that these defenses all relate to impairment, making them unavailable to allegedly drugged drivers, with the result that similarly situated people receive disparate treatment.

¶ 23. Smet's disparate treatment argument first stumbles because it is based on the faulty premise that "driving under the influence" means impairment. It does not, as we already have demonstrated. See Muehlenberg, 118 Wis. 2d at 505. Wisconsin Stat. § 346.63(1)(am) and (b) prohibit driving with "a detectable amount" and "a prohibited. .. concentration" of the specified substance. Both are status offenses without proof of impairment required.

¶ 24. Moreover, Smet is not singularly deprived of a defense; the statute itself provides one if he can sufficiently demonstrate that he had a valid prescription for the substance found in his blood. See Wis. Stat. § 346.63(l)(d). As with other driving under the influence prosecutions, Smet also would have at his disposal an array of evidentiary challenges. These include erroneously being limited to a single test, and challenges to the test itself, such as chain of custody, whether the test was conducted as directed by statute, the reliability of the testing device, and the credentials of the laboratory or the technician. See State v. Disch, 119 Wis. 2d 461, 471, 351 N.W.2d 492 (1984).

¶ 25. Smet may desire a particular defense, but that is not what the constitution guarantees. The right to present a defense means that a defendant must be afforded a meaningful opportunity to present a complete defense, including the right to call, confront and cross-examine witnesses. See State v. Heft, 185 Wis. 2d 288, 303, 517 N.W.2d 494 (1994); see also State v. Pulizzano, 155 Wis. 2d 633, 645, 456 N.W.2d 325 (1990) ("The constitutional right to present evidence is grounded in the confrontation and compulsory process clauses of Article I, Section 7 of the Wisconsin Constitution and the Sixth Amendment of the United States Constitution."). We see no abridgement of that right.

¶ 26. Having concluded that the classification does not impinge on a fundamental right, we next must examine whether the classification rationally furthers a purpose identified by the legislature. Thomas, 274 Wis. 2d 513, ¶ 25. Equal protection does not deny a state the power to treat persons differently; rather, the state retains broad discretion to create classifications so long as the classifications have a reasonable basis. McManus, 152 Wis. 2d at 131. We will not invalidate a statutory classification even if it results in some inequity unless the classification is "patently arbitrary" and bears no rational relationship to a legitimate government interest. Id. (citation omitted).

¶ 27. The classification here is not "patently arbitrary" because neither Wis. Stat. § 346.63(l)(am) nor § 346.63(l)(b) requires proof of impairment. Further, as noted earlier, the placement of this prohibition within § 346.63 signifies a legislative determination to further the aim and intent of the entire statute, which is to promote highway safety. See Muehlenberg, 118 Wis. 2d at 504-05 and n.2. Smet wisely makes no argument that this is not a legitimate governmental interest. Having already determined that there exists a rational basis for the legislation under a due process analysis, we need not further examine it in the context of equal protection. See Jorgensen, 264 Wis. 2d 157, ¶ 32.

¶ 28. Finally, we observe that ten other states— Arizona, Georgia, Illinois, Indiana, Iowa, Michigan, Minnesota, Pennsylvania, Rhode Island and Utah — also have "per se" drug laws prohibiting a person from driving with any amount of certain illegal controlled substances in his or her system, regardless of impairment. Courts from those states that have addressed the constitutionality of their similar statutory provisions likewise have determined that the prohibition against driving with a controlled substance in one's system was rationally related to the governmental goal of protecting other drivers and is a valid exercise of the state's police power. See, e.g., Love v. State, 517 S.E.2d 53, 57 (Ga. 1999); People v. Fate, 636 N.E.2d 549, 551 (Ill. 1994); Phillips, 873 P.2d at 709-10. Smet directs us to no authority favorable to his arguments.

CONCLUSION

¶ 29. Smet has not shouldered his heavy burden of demonstrating unconstitutionality beyond a reasonable doubt. Indisputably, regulating the safety of our roadways is a proper exercise of the police power. We hold that the per se ban on driving or operating a motor vehicle with a detectable amount of a restricted controlled substance in one's blood, as set out in Wis. Stat. § 346.63(l)(am), bears a reasonable and rational relationship to that goal and is not fundamentally unfair, such that we see no due process violation. We also hold that the statute does not offend principles of equal protection since Smet has not established that the statute either interferes with a fundamental right or operates to the peculiar disadvantage of a suspect class. His constitutional challenges to § 346.63(1)(am) fail.

By the Court. — Judgment affirmed.

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

       Smet was charged criminally because he had prior convictions under Wis. Stat. § 346.63(1). See Wis. Stat. § 346.65(2).

       This opinion ultimately will hold that Wis. Stat. § 346.63(l)(am) also is constitutional as to Smet on equal protection grounds.


author: CANE, C.J.

text:
    Kimberly Area School District, Petitioner-Appellant, v. Labor and Industry Review Commission, Respondent-Respondent, Anthony J. Betters, Respondent.
    Court of Appeals

      No. 2005AP666.

      Submitted on briefs September 12, 2005.

      —Decided November 15, 2005.

    2005 WI App 262
    (Also reported in 707 N.W.2d 872.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Mark F. Yokom of Davis & Kuelthau, S.C. of Oshkosh.
    On behalf of the respondent-respondent, the cause was submitted on the brief of David C. Rice, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 1-20-06.

   CANE, C.J.

¶ 1. The Kimberly Area School District appeals an order concluding that the Labor and Industry Review Commission's refusal to dismiss Anthony Betters' discrimination complaint on issue preclusion was not subject to judicial review. We affirm.

Background

¶ 2. Betters was a District maintenance employee whose employment was terminated on July 18, 2002. An investigation found evidence that Betters was abusing controlled substances, which affected.his work. Betters also had prior arrests for drug-related crimes. In a letter to Betters, the District provided the following two justifications for his termination: (1) continued use of controlled substances; and (2) misrepresenting his previous record and current drug use habits to the District.

¶ 3. Betters filed a grievance with the District challenging his termination, which the District denied. Betters' collective bargaining representative, the Kimberly Custodial Maintenance Association (Union) appealed the denial. On March 26, 2003, an arbitrator issued a decision and award which ruled against Betters and concluded that the District had just cause to terminate his employment.

¶ 4. Approximately a month before the arbitrator's decision, Betters also filed a Wisconsin Fair Employment Act discrimination complaint against the District with the Department of Workforce Development. On August 25, a Department equal rights officer initially determined there was probable cause that the District unlawfully terminated Betters due to his arrest record. The Department then noticed a hearing on Betters' discrimination complaint.

¶ 5. The District moved to dismiss the discrimination complaint on the grounds of issue and claim preclusion. Citing issue preclusion, the Administrative Law Judge (ALJ) dismissed the complaint without a hearing, stating the arbitrator's decision required her to conclude that the District terminated Betters' employment because of his continued use and possession of controlled substances, rather than his past criminal record.

¶ 6. According to the ALJ, issue preclusion could be applied, in part, because the arbitrator's decision was subject to judicial review under Wis. Stat. § 788.10(1). Further, the ALJ determined that even if the decision was not subject to judicial review, it still would be equitable to assign preclusive effect to the arbitrator's findings. The ALJ concluded that the District's termination of Betters' employment was based on its investigation into his conduct and not his arrest record.

¶ 7. Betters petitioned for administrative review of the ALJ's decision by the Commission. In its decision and order, the Commission set aside the ALJ's decision and remanded the case to the ALJ for a hearing on the merits of Betters' discrimination complaint. The Commission disagreed with the ALJ's conclusion that issue preclusion should be applied to the arbitration award. The Commission also stated it was the Union, rather than Betters, that likely had the exclusive right to seek the arbitration award review and that the legal issues presented in the arbitration proceeding and in the Act's proceeding are very different. Finally, the Commission concluded the arbitrator's findings did not conclusively establish that a hearing was unnecessary under City of Onalaska v. LIRC, 120 Wis. 2d 363, 367, 354 N.W.2d 233 (Ct. App. 1984). The Commission summarized its decision as follows:

The commission concludes that the [ALJ] erred by disposing of this case without a hearing. Even if the arbitration award is given a great deal of weight in terms of the facts, all that it establishes is the facts as to what the [District] knew and how it knew it. It does not establish whether the [District's] decision was motivated by what it knew through the arrest and the arresting authorities, or what it knew through independent sources. To deny [Betters] the opportunity for a hearing was, the commission concludes, an error. For this reason, the commission has set aside the decision and has remanded this matter for hearing on the merits of the complaint.

¶ 8. The District challenged the Commission's decision in circuit court under Wis. Stat. §§ 227.52 — 227.57 and 111.395. The Commission moved to dismiss on the ground that the decision was not subject to judicial review under § 227.52 because it did not affect the substantial interests of the District. The circuit court agreed and granted the Commission's motion, stating:

[The Commission's] order setting aside the [ALJ's] decision and remanding for a hearing on the merits is not a final and reviewable decision. The School District may ultimately prevail, and this opportunity for success on the merits supports the conclusion that [the Commission's] decision is interlocutory and not final. Judicial review is available only upon the conclusion of the agency proceedings on the merits of Betters' claims.

Discussion

¶ 9. The District argues the circuit court erroneously ruled that the Commission's decision is not subject to judicial review pursuant to Wis. Stat. § 227.52. The District contends an arbitration hearing on the merits has already been conducted, and the ALJ properly dismissed Betters' case on the grounds of issue preclusion. Thus, the issues have thoroughly been analyzed, and judicial review is appropriate. Whether an administrative decision is subject to judicial review is a question of law, which we review without deference. City of Muskego v. Godec, 167 Wis. 2d 536, 545, 482 N.W.2d 79 (1992).

¶ 10. The right to appeal from an administrative decision arises exclusively from statute. Pasch v. DOR, 58 Wis. 2d 346, 352-53, 206 N.W.2d 157 (1973). To receive review of an administrative decision, a party's "substantial interests" must be "adversely affected." See Wis. Stat. § 227.52. If a decision sought to be reviewed is not an administrative decision within the meaning of the statute, a circuit court lacks jurisdiction to proceed on the merits and only has jurisdiction to dismiss the petition for review. See State v. WERC, 65 Wis. 2d 624, 630-32, 223 N.W.2d 543 (1974).

¶ 11. An agency decision that denies a motion to dismiss and requires a hearing on the merits is not an administrative decision within the meaning of the statute because at this point the party seeking review does not have substantial interests that have been adversely affected. See WERC, 65 Wis. 2d at 631; Pasch, 58 Wis. 2d at 355-57. Whether the agency has jurisdiction to proceed to a hearing may be challenged upon judicial review of the agency's final decision. See WERC, 65 Wis. 2d at 631; Pasch, 58 Wis. 2d at 355-57. Our supreme court provided reasoning for delay of judicial review until completion of the agency proceeding in Pasch stating:

Appellant argues that the issue of the commission's jurisdiction should be finally determined before appellant is put to the expense and inconvenience of a lengthy proceeding before the commission .... We are mindful of the fact that much time and expense might be saved if the courts would decide at this time that the commission had exceeded its jurisdiction; however, this consideration is outweighed by the resultant delay that would accompany review of these agency determinations and the disruption of the agency's orderly process of adjudication in reaching its ultimate determination.

Pasch, 58 Wis. 2d at 357.

¶ 12. An agency decision is final if it conclusively "determine[s] the further legal rights of the person seeking review." Waste Mgmt. v. DNR, 128 Wis. 2d 59, 90, 381 N.W.2d 318 (1986). An order is preliminary or interlocutory when "the substantial rights of the parties involved in the action remain undetermined and when the cause is retained for further action." Pasch, 58 Wis. 2d at 354. A preliminary or interlocutory proceeding is excluded from judicial review to prevent administrative proceedings from being "constantly interrupted and shifted hack and forth between the agencies and the courts . . . ." Failing to exclude such a proceeding "would seriously hamper the efficient conduct of administrative proceedings." WERC, 65 Wis. 2d at 637.

¶ 13. Here, the Commission's decision is not final and, therefore, it is not subject to judicial review. The Commission made no decision that conclusively determined the further legal rights of the District. The Commission remanded the matter for further review on the merits, and as the circuit court correctly recognizes, the District "may ultimately prevail, and this opportunity for success on the merits supports the conclusion that the [Commission's] decision is interlocutory and not final." The substantial rights of the District remain undetermined and will remain so until the administrative process has been completed in its entirety. For these reasons, and previously articulated concerns of judicial economy, we affirm the court's order.

By the Court. — Order affirmed.

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

       The District also argues that the decisions of both the Commission and the arbitrator were erroneous. Since we hold that the substantial interests of the District were not affected, we need not address these arguments. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663 (1938).