author: LUNDSTEN, J. DYKMAN, J.

text:
    State of Wisconsin ex rel. Tommy Ponchik, Plaintiff-Respondent,  v. Jody Bradley, Defendant-Appellant, Matthew Frank, Defendant.
    Court of Appeals

      No. 03-2958.

      Submitted on briefs September 7, 2004.

    Decided November 18, 2004.

    2004 WI App 226
    (Also reported in 690 N.W.2d 860.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Bruce D. Huibregtse and Christopher T. Sundberg of Stafford Rosenbaum LLP, Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Tommy Ponchik, pro se.

    Before Deininger, PJ., Dykman and Lundsten, JJ.

       Petition to review dismissed.

   LUNDSTEN, J.

¶ 1. Jody Bradley, warden of the North Fork Correctional Facility in Oklahoma, appeals a nonfinal order denying his motion to dismiss a certio-rari action filed by Tommy Ponchik, a Wisconsin inmate seeking review of an out-of-state prison disciplinary decision. Warden Bradley contends that Wisconsin courts lack competency to review the disciplinary decision and also lack personal jurisdiction over Bradley. We need not reach the Warden's personal jurisdiction argument because we agree that the trial court lacked competency to entertain Ponchik's certiorari action. In keeping with State ex rel. Myers v. Swenson, 2004 WI App 224, 277 Wis. 2d 749, 691 N.W.2d 357, a decision we also issue today, we conclude the trial court lacked competency to address the merits of Ponchik's certio-rari action because Ponchik failed to show both that he sought judicial review in Oklahoma and that he was denied review because the Oklahoma court determined it lacked either jurisdiction or competency. Accordingly, we reverse the order of the trial court and remand with directions that the writ be quashed and the certiorari action be dismissed.

Background

¶ 2. Ponchik is a Wisconsin inmate who was transferred to the North Fork Correctional Facility in Oklahoma pursuant to a contract between the Wisconsin Department of Corrections and the Corrections Corporation of America, a private company. Prison officials at North Fork Correctional issued Ponchik a conduct report for assault and failure to follow posted rules. A disciplinary committee found Ponchik guilty of the assault charge and imposed a punishment of thirty days in the special management unit. The assistant warden at North Fork Correctional denied Ponchik's administrative appeal.

¶ 3. While still incarcerated in Oklahoma, Pon-chik filed a petition for a writ of certiorari in Wisconsin, naming both Bradley, in his capacity as the Warden at North Fork Correctional, and Matthew Frank, in his capacity as the Secretary of the Wisconsin Department of Corrections, as respondents. It appears that, shortly after filing this petition, Ponchik was transferred back to Wisconsin. The Wisconsin trial court issued a writ directing prison officials to file a return of the administrative record.

¶ 4. While the Wisconsin certiorari 'action was pending, Ponchik wrote to the clerk of court in Beck-ham County, Oklahoma, where North Fork Correctional is located. In his letter, Ponchik requested forms to file a certiorari action in Oklahoma and inquired whether it was true that Oklahoma does not conduct certiorari reviews. The clerk responded that she was unable to provide legal advice, and directed Ponchik to the prison law library.

¶ 5. Warden Bradley moved to quash the writ and dismiss the action on the grounds that the court lacked personal jurisdiction over Bradley and lacked competency to review inmate discipline at an out-of-state contract facility. The trial court denied Warden Bradley's motion, and Bradley sought interlocutory review. This court granted leave to appeal the nonfinal order on December 15, 2003.

Discussion

¶ 6. We independently review whether a trial court is competent to proceed on a certiorari action. Myers, 277 Wis. 2d 749, ¶ 6. In Myers, we concluded that Wis. Stat. § 302.02(3t) (2001-02) deprives Wisconsin courts of competency to conduct certiorari review of out-of-state prison disciplinary decisions, unless an inmate can show that he was denied judicial review on jurisdictional or competency grounds in the state where the disciplinary action occurred. Myers, 277 Wis. 2d 749, ¶¶ 9, 19. The inmate in Myers was unable to make the required prima facie showing because he merely asserted that it would be futile to seek out-of-state judicial review, without actually having attempted to obtain such review. Id., ¶¶ 2, 14.

¶ 7. Like the inmate in Myers, Ponchik failed to make a prima facie showing that a court in the state where the disciplinary action occurred concluded that it lacked jurisdiction or competency to review the discipline. Ponchik, however, makes two additional arguments that were not made by the inmate in Myers. First, Ponchik argues, in effect, that there is no need for an individualized showing because an Oklahoma statute precludes jurisdiction over all out-of-state prisoners housed there. See Okla. Stat. tit. 57, § 563.2(k) (2001). Second, Ponchik contends that he actually sought judicial review by writing to a clerk of court in Oklahoma. Although we did not address either of these specific arguments in Myers, we conclude our holding there nonetheless controls the result in this case and dictates that the Wisconsin trial court lacked competency to entertain Ponchik's certiorari action.

¶ 8. As we noted in Myers, whether an inmate has been denied access to an out-of-state court on jurisdictional or competency grounds presents a factual question. Myers, 277 Wis. 2d 749, ¶ 13. Treating the question as factual in nature relieves Wisconsin courts of the need to continually review the laws of other states to determine what judicial relief is available in those states for disciplinary actions involving Wisconsin inmates. Such review of the jurisdictional laws of other states would be inefficient and would present an unnecessary burden on the courts of this state when the courts of other states are in the best position to interpret their own laws. Focusing on whether out-of-state judicial review was actually denied on jurisdictional or competency grounds, as a factual matter, also affords additional protection to inmates by providing an avenue for relief in Wisconsin in the event that an out-of-state court declines to exercise jurisdiction notwithstanding state laws that would otherwise appear to confer jurisdiction. Thus, we reiterate that, in order to establish that a Wisconsin court is competent to review an out-of-state disciplinary proceeding, an inmate must make an individualized showing that he has attempted to obtain judicial review in the state where the discipline was imposed and that a court in that state dismissed his case for lack of jurisdiction or competency. Id., ¶ 12. Ponchik's untested theory as to why judicial review would be unavailable under the laws of Oklahoma is insufficient to show that he would have been denied judicial review on jurisdictional or competency grounds.

¶ 9. Ponchik's correspondence with a clerk of court in Oklahoma is also insufficient to show that he was actually denied judicial review on jurisdictional or competency grounds. First, a letter from a clerk of court is not a judicial decision. Second, the clerk's letter did not address whether Oklahoma had jurisdiction. Finally, Ponchik did not even make his inquiry until after the certiorari action in Wisconsin had been filed.

¶ 10. In sum, Ponchik has failed to establish grounds to exempt his certiorari action from the general rule that Wisconsin courts lack competency to review out-of-state disciplinary decisions. Accordingly, we conclude that the trial court erred in denying Warden Bradley's motion to quash the previously issued writ and to dismiss the certiorari action. We therefore reverse and remand with directions that the trial court grant the Warden's motion. In light of our decision, we do not address the Warden's additional argument regarding personal jurisdiction.

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

DYKMAN, J.

¶ 11. (dissenting). The majority has devised a new method of analyzing cases arising under State ex rel. Curtis v. Litscher, 2002 WI App 172, 256 Wis. 2d 787, 650 N.W.2d 43. While the method solves the issue in this case, ultimately, the cure is probably worse than the disease.

¶ 12. Inmates in foreign private prisons must petition foreign circuit or district courts to review their conditions of confinement cases. I have no quarrel with this concept, as usually applied, though it does not directly address Ponchik's situation. His situation, and that of all Wisconsin prisoners located in Oklahoma private prisons, is unique. Oklahoma has enacted a statute which, like Wis. Stat. § 302.02(3t) (2001-02), requires prisoners to litigate in a foreign state. Okla. Stat. tit. 57 § 563.2(K) (2001) provides:

The State of Oklahoma shall not assume jurisdiction or custody of any federal inmate or inmate from another state housed in a facility owned or operated by a private prison contractor. Such inmates from another state shall at all times be subject to the jurisdiction of that state and federal inmates shall at all times be subject to federal jurisdiction. This state shall not be liable for loss resulting from the acts of such inmates nor shall this state be hable for any injuries to the inmates.

¶ 13. Thus, Wis. Stat. § 302.02(3t) purports to give Oklahoma courts jurisdiction to decide private prison conditions of confinement cases, while Okla. Stat. tit. 57 § 563.2(L) (2001) purports to give Wisconsin courts jurisdiction to decide those issues for Wisconsin inmates housed in Oklahoma private prisons. But for Curtis, the result would be that Wisconsin prisoners housed in Oklahoma private prisons would have no judicial recourse to the courts of either state.

¶ 14. The majority, purporting to "elaborate" on Curtis, inquires only into whether a Wisconsin inmate in an Oklahoma private prison has petitioned an Oklahoma court to review his or her conditions of confinement case and the response of the Oklahoma court. Without reference to statutes, constitutions, appellate court decisions or administrative rules, the majority concludes that only when an Oklahoma court denies access to a Wisconsin inmate in a conditions of confinement case does a Wisconsin court have competence to address the prisoner's petition. But because the majority deems this a question of fact, every Oklahoma prisoner must petition an Oklahoma court in every case.

¶ 15. Thus, if the Oklahoma Supreme Court were to conclude, as I do, that Oklahoma courts lack jurisdiction to address Wisconsin prisoners' conditions of confinement cases, all prisoners would nonetheless be required to petition Oklahoma courts even though everyone knew at the outset that the petitions would be dismissed because Oklahoma courts lacked jurisdiction to address them. There is something wrong with a court requiring someone to file a frivolous lawsuit. How would Wisconsin courts react to an Oklahoma court adopting the majority's theory and require Oklahoma prisoners to file frivolous lawsuits in Wisconsin courts?

¶ 16. I would do what Wisconsin courts have been doing for a long time; examine the foreign statute to determine its meaning. See State v. Collins, 2002 WI App 177, ¶ 13, 256 Wis. 2d 697, 649 N.W.2d 325. I have done so with regard to Okla. Stat. tit. 57 § 563.2(L) (2004).

¶ 17. I conclude that this statute is unambiguous. Its intent is obvious. Oklahoma does not want its courts to become involved with private prison conditions of confinement cases. Oklahoma wants those actions to be brought and decided in the home states of private prison inmates.

¶ 18. Oklahoma Stat. tit. 57 § 563.2(L) (2001) is a new statute, having been first enacted in 1991. This opinion is the first judicial interpretation of that statute. Unlike Wisconsin, Oklahoma does not keep records which may shed light on a statute's meaning. The Oklahoma Department of Libraries notes:

The only official legislative history for Oklahoma legislative measures is a procedural one. Official legislative intent is rare. Committee reports, minutes, and hearings are not published.

So I am limited to the words of the statute.

¶ 19. Bradley and Frank argue that Okla. Stat. tit. 57 § 563.2(H) shows that prisoners in private prisons may bring actions seeking judicial review of conditions of confinement decisions. That statute provides:

A private prison contractor housing federal inmates or inmates of another state shall be responsible for the reimbursement of all reasonable costs and expenses incurred by this state or a political subdivision of this state for legal actions brought in this state by or on behalf of any federal inmate or inmate of another state while incarcerated in the facility, including court costs, sheriff mileage fees, witness fees, district attorney expenses, expenses of the office of Attorney General, indigent or public defender fees and costs, judicial expenses, court reporter expenses and any other costs, fees, or expenses associated with the proceedings or actions.

¶ 20. Providing that courts lack jurisdiction to entertain private prison conditions of confinement cases and providing that the private prison is liable for the costs if a prisoner brings a case are two different things. Prisoners are not shy about bringing lawsuits, regardless of statutory prohibitions against petitioner lawsuits. Oklahoma can at the same time prohibit private prison conditions of confinement cases and require private prisons to bear the costs of them despite the lack of jurisdiction in Oklahoma courts. I am not convinced that Okla. Stat. tit. 57 § 563.2(H) (2001) evinces a legislative intent to authorize prisoners in private Oklahoma prisons to bring their prison conditions of confinement reviews in Oklahoma courts.

¶ 21. Wisconsin sends its prisoners to only a few states. The majority's fear, expressed in State ex rel. Myers v. Swenson, 2004 WI App 224, 277 Wis. 2d 749, 691 N.W.2d 357, that it would not he efficient to require Wisconsin appellate judges to familiarize themselves with the laws of multiple jurisdictions is overblown. Wisconsin courts have not balked at interpreting foreign statutes. See Collins, 256 Wis. 2d 697, ¶ 13. Wisconsin courts use the concept of stare decisis, which requires us to follow previous cases, some of which interpret statutes. Once we have interpreted a statute, foreign or domestic, we cannot revisit that interpretation unless the statute is amended or repealed. See Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997). Researching foreign statutes is no different from researching Wisconsin law, and takes no more time. Once done for the law of three states, we can freely rely on our opinions in future cases.

¶ 22. The majority's second fear, also expressed in Myers, also fails under scrutiny. This fear is that it is inefficient for Wisconsin courts to review foreign conditions of confinement cases because pertinent records and decision makers are located out of state. But all of our Wisconsin conditions of confinement cases are reviewed at a distance from the prisons where they originate. These appeals are mainly by certiorari, and on appeal are on the record made in a prison. Trial courts do not go to prisons to hear conditions of confinement cases, nor do we. Prisoners do not appear, even by telephone. If the United States mail can carry a record from Boscobel to a local courthouse, the Dane County courthouse or here, it can carry a record from Minnesota, Tennessee or Oklahoma. Prison officials in Minnesota, Tennessee and Oklahoma use English, the same language Wisconsin prison officials use. I am confident that Wisconsin trial and appellate courts can read and understand reports written by non-Wisconsin prison officials. In short, the majority's second reason for adopting its new standard is no reason at all.

¶ 23. The new analysis adopted by the majority will lead to frivolous, fruitless and wasteful litigation, at least as to Wisconsin prisoners in Oklahoma private prisons. The method previously used by Wisconsin courts, which I would continue, has proven to be efficient. I have reviewed Okla. Stat. tit. 57 § 563.2(L) (2004). I conclude that Wisconsin prisoners incarcerated in Oklahoma private prisons do not have access to Oklahoma courts to review conditions of confinement cases initially decided in Oklahoma private prisons. Accordingly, under Curtis, I conclude that Wisconsin courts have competency to review Ponchik's disciplinary case. Should Oklahoma change its statute or should an Oklahoma appellate court conclude differently, my view would change. But until then, I would affirm the trial court's order. Accordingly, I respectfully dissent.

       Secretary Frank joined Warden Bradley's motion with respect to the competency issue, but did not separately appeal the trial court's ruling.

       Wisconsin Stat. § 302.02(3t) provides: "For all purposes of discipline and for judicial proceedings, each institution that is located in another state and authorized for use under s. 301.21 and its precincts are considered to be in the county in which the institution is physically located, and the courts of that county have jurisdiction of any activity, wherever located, conducted by the institution." All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Wisconsin Stat. § 302.02(3t) provides:
      Institutions located in other states. For all purposes of discipline and for judicial proceedings, each institution that is located in another state and authorized for use under s. 301.21 and its precincts are considered to be in the county in which the institution is physically located, and the courts of that county have jurisdiction of any activity, wherever located, conducted by the institution.

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

       Section 563.2(K) has been changed to § 563.2(L). See 2004 Okla. Sess. Laws 552. The content of § 563.2(L) remains the same as § 563.2(K).

       Section 563.2(H) has been changed to § 563.2(1). See 2004 Okla. Sess. Laws 552. Its content remains the same.

       Since this is a dissent, it is not relevant how I would decide the merits of Ponchik's appeal and I do not do so.

       The trial court also concluded that Wisconsin's "long arm" statute, Wis. Stat. § 801.05(5), authorized it to exercise personal jurisdiction over Jody Bradley, an Oklahoma resident. The majority need not and does not address this issue, and a dissent discussing an issue not reached by a majority makes for difficult analysis by readers and is even less useful than a dissent to an issue decided by the majority. I therefore conclude that though I agree with the trial court that jurisdiction over Bradley was present, no useful purpose is served by analyzing why that is true.


source: Caselaw Access Project

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Appellant, v. Christopher M. Repenshek, Defendant-Respondent.

    Court of Appeals

      No. 03-3089-CR.

      Submitted on briefs August 5, 2004.

    Decided November 18, 2004.

    2004 WI App 229
    (Also reported in 691 N.W.2d 369.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James M. Freimuth, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Stephen E. Mays of Mays Law Office, LLC, Madison.
    Before Dykman, Vergeront and Lundsten, JJ.

       Petition to review denied 4-6-2005.

   LUNDSTEN, J.

¶ 1. Christopher Repenshek has pending against him several charges, including homicide by intoxicated use of a vehicle, arising out of a head-on vehicle collision. The State appeals a pretrial order suppressing blood-alcohol evidence obtained pursuant to a warrantless blood draw. The State argues that the circuit court erroneously concluded that police lacked reasonable suspicion to believe Repenshek's blood contained evidence of a crime, that is, that Repenshek's blood contained evidence that Repenshek was impaired by alcohol when the pickup truck he was driving crossed the center line and collided head-on with an oncoming pickup truck.

¶ 2. Repenshek disputes the State's reasonable suspicion argument and offers alternative reasons for affirming the circuit court's suppression ruling. Consequently, this case presents four questions: (1) Was Repenshek's arrest illegal because the officer , arrested him for a nonexistent crime? (2) Was the blood draw illegal under State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), because Repenshek's arrest was not for a "drunk-driving related violation or crime"? (3) Does Wis. Stat. § 343.303 prohibit consideration of a refusal to submit to a preliminary breath test when police lack "probable cause" within the meaning of that statute? and (4) Did police possess reasonable suspicion that Repenshek's blood contained evidence of a crime? We resolve each of these questions against Repenshek and, therefore, reverse the suppression order of the circuit court.

Background

¶ 3. The pending charges against Repenshek are based on a traffic collision that occurred shortly after 4:00 p.m. on a two-lane highway. Repenshek was driving a pickup truck that clipped the back end of a second pickup truck. Repenshek's truck struck this second truck as the second truck slowed to make a right-hand turn. After striking the second truck, Repenshek's truck crossed the center line iiito oncoming traffic and collided head-on with a third pickup truck driven by Russell Vossekuil. Vossekuil died from injuries sustained in the collision. In addition, a passenger in Repenshek's truck was injured. Two homicide charges pending against Repenshek relate to Vossekuil's death. An injury charge relates to Repenshek's passenger.

¶ 4. An investigating officer testified at the suppression hearing and gave the following testimony. Officers were dispatched to the accident at about 4:20 p.m. and observed the wreckage of a two-vehicle, head-on crash. The area of the accident is a no passing zone. On the scene, the officer saw emergency medical personnel performing CPR on the driver of one of the trucks involved in the head-on collision.

¶ 5. The officer spoke with an eyewitness who was not involved in the accident. This witness said he was in his own vehicle, stopped at a stop sign at the intersection, when he saw Repenshek's white truck, which was traveling south, swerve into the northbound lane. The witness thought the white truck possibly did this to avoid a car that had pulled out from the stop sign. The witness said the white truck then collided with the blue truck.

¶ 6. The officer spoke with Repenshek and Repen-shek admitted he was the driver of the white truck that was involved in the head-on crash. Repenshek said he had been driving behind another southbound truck when that truck's driver hit the brakes. Repenshek told the officer he swerved to the left to avoid a collision with the braking truck, but still "clipped" the left rear bumper of that truck. Repenshek said this sent him into the northbound lane and into the path of the blue truck.

¶ 7. The officer asked Repenshek if he would submit to a "preliminary breath test" and Repenshek refused, saying he had a "prior OWI" and that the PBT "got him in trouble the last time." Repenshek said he would cooperate as much as possible, but would not take the PBT or consent to a blood draw.

¶ 8. The officer testified that he arrested Repen-shek for "causing great bodily harm by reckless driving." The complaint indicates that Repenshek was taken to a hospital, where police directed hospital personnel to draw a sample of Repenshek's blood. The police had no warrant, and Repenshek did not voluntarily consent to this blood draw. A test of Repenshek's blood, drawn about two and a half hours after the collision, revealed a blood-alcohol content of .051%.

Discussion

Whether Repenshek's Arrest was Illegal Because the Officer Arrested Repenshek for a Nonexistent Crime

¶ 9. Repenshek argues that evidence obtained from the blood draw must be suppressed as the fruit of an illegal arrest. Repenshek does not dispute that police had probable cause to arrest him for reckless driving, contrary to Wis. Stat. § 346.62(4) (1999-2000). Instead, he argues that his arrest was illegal because the arresting officer testified that Repenshek was arrested for "causing great bodily harm by reckless driving," a crime Repenshek asserts does not exist. However, even assuming the officer was subjectively motivated to arrest Repenshek for a nonexistent crime, Repenshek's arrest was nonetheless legal because police had probable cause to arrest him for an actual crime.

¶ 10. Generally speaking, the legality of an arrest does not depend on whether the arresting officer articulates the correct legal basis for the arrest. Stated differently, in general, the legality of an arrest does not depend on the subjective motivation of the arresting officer. See State v. Kiekhefer, 212 Wis. 2d 460, 484, 569 N.W.2d 316 (Ct. App. 1997) ("The probable cause standard is an objective one; the officers' subjective state of mind is irrelevant."); see also Whren v. United States, 517 U.S. 806, 813 (1996) (the existence of probable cause is determined objectively without regard to the "actual motivations" or "[s]ubjective intentions" of the arresting officer).

¶ 11. More specifically, even when an officer acts under a mistaken understanding of the crime committed, an objective test is used to determine the legality of the arrest. Research provided by the State and our own research suggests that this rule is uniformly accepted in both state and federal courts. The rule was aptly summarized in a Tennessee decision:

[A]n arrest is not rendered unlawful by the fact that an officer who has authority to make an arrest for a particular offense erroneously states he is making an arrest for some other offense, or even for a cause which is not in fact an offense, or states the offense inaccurately.

State v. Robinson, 622 S.W.2d 62, 68 (Tenn. Crim. App. 1980); see also Lauro v. City of New York, 39 F. Supp. 2d 351, 361 (S.D.N.Y. 1999) (even if an officer fails to accurately identify an offense, an arrest is lawful if probable cause existed to arrest the suspect for a crime for which warrantless arrests are permitted), rev'd and remanded on other grounds sub nom., Lauro v. Charles, 219 F.3d 202 (2d Cir. 2000); Bell v. United States, 254 F.2d 82, 86-87 (D.C. Cir. 1958) (arrests lawful even though defendants were arrested for nonexistent crime of "housebreaking"); State v. Sassen, 484 N.W.2d 469, 472 (Neb. 1992) ("The officers need not state the specific crime for which a defendant is arrested in order to effectuate a valid arrest."); see generally 1 Wayne R. LaFave, Search and Seizure § 1.4(d), at 109-15 & n.28 (3d ed. 1996).

¶ 12. Accordingly, even assuming that the officer in this case arrested Repenshek for a crime that does not exist, that fact does not make Repenshek's arrest illegal. Rather, the pertinent question is whether the arrest was supported by probable cause to believe Repenshek committed a crime. See State v. Cash, 2004 WI App 63, ¶ 24, 271 Wis. 2d 451, 677 N.W.2d 709 ("The objective facts before the police officer need only lead to the conclusion that guilt is more than a possibility."), review denied, 2004 WI 114, 273 Wis. 2d 657, 684 N.W.2d 138 (No. 03-1614-CR). Because Repenshek does not dispute that the officer had probable cause to arrest him for reckless driving, as defined by Wis. Stat. § 346.62(4), we reject Repenshek's illegal arrest argument.

Whether the Blood Draw Was Illegal Under Bohling Because Repenshek's Arrest Was Not for a "Drunk-Driving Related Violation or Crime"

¶ 13. Repenshek argues that his blood alcohol test result must be suppressed under the first prong of the four-pronged Bohling test. Under the first prong of this test, blood must be "taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime." Bohling, 173 Wis. 2d at 534 (emphasis added). Repenshek argues that he was arrested for a nore-drunk-driving crime, namely reckless driving, and, therefore, the first prong of Bohling is not satisfied. We assume, without deciding, that Repen-shek was arrested for a non-drunk-driving related violation or crime, but reject Repenshek's argument because it is based on a misreading of Bohling. As explained below, the blood draw in this case was permissible under State v. Seibel, 163 Wis. 2d 164, 471 N.W.2d 226 (1991), and Repenshek's argument hinges on the erroneous proposition that the supreme court in Bohling partly overturned Seibel. Accordingly, we begin our discussion with Seibel.

¶ 14. Seibel involved an arrest, supported by probable cause, for a non-drunk-driving offense— homicide by negligent operation of a motor vehicle— and a subsequent warrantless non-consent blood draw. Seibel, 163 Wis. 2d at 168-70. Seibel moved to suppress the results of the blood draw. Pertinent here, although police properly arrested Seibel for homicide by negligent operation of a motor vehicle, the police possessed only reasonable suspicion that Seibel's blood contained alcohol. That is, the court assumed that the police did not have probable cause to arrest Seibel for a drunk driving offense. Regarding reasonable suspicion supporting a blood draw, the Seibel court explained:

The record shows that the police possessed a reasonable suspicion that [Seibel’s] blood contained evidence of the crime of homicide by negligent operation of a motor vehicle, to wit, evidence that [Seibel] had imbibed enough to lessen or impair his ability to exercise ordinary care. Such evidence would constitute proof of criminal negligence even if it did not show that [Seibel] was legally intoxicated.

Id. at 180-81.

¶ 15. The Seibel court explained that one question in the case was "whether the standard for drawing a blood sample in a search incident to an arrest is 'reasonable suspicion' or [instead] 'probable cause' that the defendant's blood contains evidence of a crime." Id. at 166. The court concluded that reasonable suspicion is sufficient. Id. Because Seibel's arrest was supported by probable cause to believe he committed a non-drunk-driving offense, the Seibel court effectively held as follows: blood may be drawn in a search incident to a lawful arrest for a non-drunk-driving offense if the police reasonably suspect that the defendant's blood contains evidence of a crime. Repenshek argues that this holding is no longer good law.

¶ 16. Repenshek relies on the supreme court's subsequent decision in Bohling. In Bohling, the supreme court held that evidence resulting from a war-rantless nonconsensual blood draw, taken at the direction of a law enforcement officer, is admissible under the following circumstances:

(1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime, (2) there is a clear indication that the blood draw will produce evidence of intoxication, (3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw.

Bohling, 173 Wis. 2d at 534 (footnote omitted). Repen-shek points to the first prong of Bohling. He argues that even though Seibel approved of a warrantless blood draw following an arrest for a non-drunk-driving offense when police have reasonable suspicion that the defendant's blood contains evidence of a crime, that part of Seibel is no longer good law because the first prong of the Bohling test now requires that the arrest be for a "drunk-driving related violation or crime." We are not persuaded.

¶ 17. The supreme court in Bohling did not purport to set forth a test that covers all possible situations. Rather, the court defined one situation in which police may permissibly draw blood without a warrant, without consent, and without probable cause that the blood contains evidence of a crime. The Bohling court did not say that a warrantless non-consent blood draw is only legal if the four Bohling prongs are met. In short, nothing in Bohling overrules the Seibel holding that "blood may be drawn in a search incident to an arrest [for a non-drunk-driving offense] if the police reasonably suspect that the defendant’s blood contains evidence of a crime." Seibel, 163 Wis. 2d at 166.

¶ 18. Accordingly, we reject Repenshek's argument that his blood test result must be suppressed because he was not arrested for a drunk-driving related violation or crime.

Whether Wis. Stat. § 343.303 Prohibits Consideration of a Refusal to Submit to a Preliminary Breath Test When Police Lack "Probable Cause" Within the Meaning of that Statute

¶ 19. Repenshek argues that his refusal to take the preliminary breath test (PBT) may not be considered in assessing reasonable suspicion because the officer violated Wis. Stat. § 343.303 when he asked Repenshek to submit to the PBT. For purposes of addressing this argument, we assume that the officer was not authorized by § 343.303 to ask Repenshek to submit to a PBT because the officer did not possess the requisite level of "probable cause" required by that statute. Still, we reject Repenshek's argument because it is based on a misapprehension of the statute and its effect.

¶ 20. Wisconsin Stat. § 343.303 authorizes police to request that a person submit to a PBT if police have "probable cause to believe" the person committed one or more specified crimes involving the intoxicated use of a vehicle or firearm. That statute provides, in pertinent part:

If a law enforcement officer has probable cause to believe that the person is violating or has violated s. 346.63(1) or (2m) or a local ordinance in conformity therewith, or s. 346.63(2) or (6) or 940.25 or s. 940.09 where the offense involved the use of a vehicle,... the officer, prior to an arrest, may request the person to provide a sample of his or her breath for a preliminary breath screening test using a device approved by the department for this purpose. The result of this preliminary breath screening test may be used by the law enforcement officer for the purpose of deciding whether or not the person shall be arrested for a violation of s. 346.63(1), (2m), (5) or (7) or a local ordinance in conformity therewith, or s. 346.63(2) or (6), 940.09(1) or 940.25 and whether or not to require or request chemical tests as authorized under s. 343.305(3). The result of the preliminary breath screening test shall not be admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to prove that a chemical test was properly required or requested of a person under s. 343.305(3).

Relying on § 343.303, as interpreted in County of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999), Repenshek argues that an officer may not request that a suspect take a PBT unless the officer already possesses, in the words of the Renz court, "a quantum of proof greater than the reasonable suspicion necessary to justify an investigative stop,... but less than the level of proof required to establish probable cause for arrest." Id. at 316. Repenshek argues that considering his refusal to take the PBT when assessing whether there was reasonable suspicion to believe there was alcohol in his blood is impermissible because, under § 343.303, an officer needed more than reasonable suspicion to ask him to submit to a PBT in the first place. Repenshek's argument is unavailing because § 343.303 does not authorize the remedy he seeks.

¶ 21. The supreme court's Renz decision does not address the issue presented here. Instead, the issue in Renz was whether, pursuant to Wis. Stat. § 343.303, "a law enforcement officer is required to have probable cause for arrest before asking a suspect to submit to a PBT." Renz, 231 Wis. 2d at 295. The supreme court assumed, without addressing the topic, that if an officer does not possess the level of "probable cause" required by § 343.303, the result of a PBT may not be used to support an arrest for driving while intoxicated or be used to require further testing. The supreme court's assumption apparently flows from the following language in the statute: "The result of this preliminary breath screening test may be used by the law enforcement officer for the purpose of deciding whether or not the person shall be arrested for a violation of [specified crimes involving the intoxicated use of a vehicle or firearm] and whether or not to require or request [a blood, breath, or urine test] as authorized under s. 343.305(3)." That is, because § 343.303 specifies that, when a PBT is taken in compliance with the statute, a PBT result may be used by an officer to decide whether to arrest a person for specified intoxication crimes or to decide whether to require further testing, the Renz court made the reasonable, albeit unexpressed, assumption that the legislature was directing that the result of a PBT not taken in compliance with § 343.303 could not be used for these purposes.

¶ 22. What matters here is that neither Renz nor Wis. Stat. § 343.303 addresses what use may be made of a refusal to take a PBT when an officer does not have the requisite probable cause to request a PBT under § 343.303. This distinction is key because the topic here is suppression. Repenshek seeks suppression of the results of his blood test, not based on an alleged constitutional violation, but based on an alleged violation of a statute, namely § 343.303. That Repenshek does not allege a constitutional violation is not surprising. The officer in this case no more violated the constitution when he requested that Repenshek submit to a PBT than if the officer had requested Repenshek's consent to the search of his truck. From a constitutional standpoint, there is typically no harm in asking.

¶ 23. Thus, we return to Repenshek's argument that the blood test results should be suppressed because the officer obtained the blood sample as a result of a violation of Wis. Stat. § 343.303. It is a well-settled principle of search and seizure law that suppression is only required when evidence has been obtained in violation of an applicable constitutional right or when a statute specifies suppression as a remedy for a violation of the statute:

Suppression of evidence is "only required when evidence has been obtained in violation of a defendant's constitutional rights, or if a statute specifically provides for the suppression remedy." State v. Raflik, 2001 WI 129, ¶ 15, 248 Wis. 2d 593, 636 N.W.2d 690 (citations omitted). For example, a violation of the implied consent law does not render otherwise legally obtained evidence inadmissible. See State v. Zielke, 137 Wis. 2d 39, 51-52, 403 N.W.2d 427 (1987).

State v. Keith, 2003 WI App 47, ¶ 8, 260 Wis. 2d 592, 659 N.W.2d 403, review denied, 2003 WI 32, 260 Wis. 2d 753, 661 N.W.2d 101 (No. 02-0583-CR).

¶ 24. Repenshek does not argue that any language in Wis. Stat. § 343.303 limits the use of a refusal to submit to a PBT. Plainly, there is no such language. Rather, the statute deals only with what use may be made of a test result. Repenshek might respond that we should infer that the legislature meant to include a suppression remedy when a non-complying request results in a refusal. But, to do that, we would have to write language into the statute and, more importantly, ignore binding law that requires that the remedy sought for statutory violation be expressed in the relevant statute. See State v. Raflik, 2001 WI 129, ¶¶ 14-15, 248 Wis. 2d 593, 636 N.W.2d 690 (failure to comply with Wis. Stat. § 968.12(3)(d) by failing to contemporaneously record a telephonic search warrant does not require suppression because the statute does not specify that remedy).

¶ 25. Key to understanding our analysis is understanding that Wis. Stat. § 343.303 does not contain a general prohibition on police requesting a PBT. Rather, the statute only imposes a limitation on the use of a PBT result in a particular situation, that is, where the requesting officer wants to use the PBT result to support a drunk driving arrest or to support a non-consent blood draw. For example, do police officers act illegally when they ''bust" a teenage drinking party and ask attendees to take PBTs? This is a routine procedure and the results are used to make a preliminary determination about which teens may have been drinking. We can discern no reasonable argument that police are acting illegally because they do not, under § 343.303, have "probable cause" to believe the teens have violated a drunk driving statute.

¶ 26. Accordingly, we conclude that Wis. Stat. § 343.303 does not prohibit the consideration of Repenshek's refusal to submit to a PBT for purposes of determining whether Repenshek's blood draw was supported by reasonable suspicion.

Whether the Police Possessed Reasonable Suspicion that Repenshek's Blood Contained Evidence of a Crime

¶ 27. The question remains whether police in this case possessed reasonable suspicion to believe that Repenshek's blood contained evidence of a crime. More specifically, did police know facts constituting reasonable suspicion to believe that Repenshek's blood contained evidence that Repenshek was impaired because of alcohol consumption? Among other things, if alcohol was found in Repenshek's blood, that finding would support the charge of reckless driving, causing great bodily harm under Wis. Stat. § 346.62(4). The second element of this crime "requires that the defendant operated a vehicle in a manner constituting criminal negligence." Wis JI — Criminal 2654. As the supreme court explained in Seibel: "[EJvidence that the defendant had imbibed enough [alcohol] to lessen or impair his ability to exercise ordinary care ... would constitute proof of criminal negligence even if it did not show that the defendant was legally intoxicated." Seibel, 163 Wis. 2d at 180-81.

¶ 28. The circuit court concluded that the officer did not have reasonable suspicion to believe that Repenshek's blood contained evidence of intoxication. We disagree. "The question of what constitutes reasonable suspicion is a common sense test. Under all the facts and circumstances present, what would a reasonable police officer reasonably suspect in light of his or her training and experience?" State v. Jackson, 147 Wis. 2d 824, 834, 434 N.W.2d 386 (1989). Whether facts constitute reasonable suspicion is a question of law, which we review without deference to the circuit court. State v. Williams, 2001 WI 21, ¶ 18, 241 Wis. 2d 631, 623 N.W.2d 106. We conclude that the officer possessed reasonable suspicion to believe that Repenshek's blood contained evidence that Repenshek had been drinking and that his ability to drive safely was impaired by alcohol consumption.

¶ 29. First, the officer knew that Repenshek had failed to stop his truck in his lane of traffic and had, instead, struck the truck ahead of him, crossed the center line, and collided head-on with an oncoming truck. Repenshek does not dispute the conclusion that the officer possessed sufficient facts to support probable cause to believe that Repenshek caused the collision by operating his vehicle in a criminally negligent manner. Second, Repenshek was asked if he would submit to a PBT and Repenshek refused, saying he had a prior "OWI" and a PBT "got him in trouble the last time."

¶ 30. Of course, there may be an innocent explanation for Repenshek's refusal to take the PBT. For example, he may think the test is unreliable. However, we "recognize. . . that conduct which has innocent explanations may also give rise to a reasonable suspicion of criminal activity." State v. Young, 212 Wis. 2d 417, 430, 569 N.W.2d 84 (Ct. App. 1997). In this case, it is self-evident that a reasonable officer who knows that Repenshek has likely caused a serious vehicle accident by the negligent operation of his truck, and who knows that Repenshek has refused to cooperate with a test designed to detect alcohol consumption, would reasonably suspect that Repenshek was refusing to take the PBT to conceal the fact that he had been drinking alcohol. Stated in converse, it is hard to conceive how a reasonable officer faced with these facts would not suspect that Repenshek was trying to conceal alcohol consumption. Cf. State v. Babbitt, 188 Wis. 2d 349, 359-60, 363, 525 N.W.2d 102 (Ct. App. 1994) (refusal to take a field sobriety test is evidence of consciousness of guilt and may be used as a factor in assessing probable cause).

¶ 31. Accordingly, we conclude that Repenshek's blood draw was supported by reasonable suspicion.

Conclusion

¶ 32. For the reasons set forth above, we reverse the order suppressing the test results of blood drawn from Repenshek. We remand for further proceedings consistent with this opinion.

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

DYKMAN, J.

¶ 33. (concurring). Wisconsin Stat. § 343.303 (2001-02) provides in pertinent part:

If a law enforcement officer has probable cause to believe that the person is violating or has violated [statutes or ordinances prohibiting driving while intoxicated] . . . the officer, prior to an arrest, may request the person to provide a sample of his or her breath....

¶ 34. By using the word "if," the legislature has predicated an officer's use of a preliminary breath test (PBT) on probable cause. Without probable cause, an officer may not request a person to provide a sample of his or her breath.

¶ 35. I therefore cannot agree with the majority's analysis of Wis. Stat. § 343.303 in ¶ 25 of its opinion. The problematic sentence reads in part: "Wis. Stat. § 343.303 does not contain a general prohibition on police requesting a PBT." Majority at ¶ 25. I am not sure what the majority means by "general prohibition," and I do not see the difference between a "prohibition" and a "general prohibition." But using "prohibition" with or without the modifier "general" still means that something is prohibited.

¶ 36. Wisconsin Stat. § 343.303 prohibits law enforcement officers from requesting breath samples from motorists unless the officer has probable cause to believe that a motor vehicle driver is or has been operating while intoxicated. The statute is inapplicable by its terms to teenage drinking parties unless a teenager is operating a motor vehicle. There is no need for the majority to base its decision on a concern that the police need PBTs to break up teenage drinking parties. Police have and continue to have the right to use PBTs for any lawful purpose.

¶ 37. Still, I reach the same conclusion as does the majority. I agree with its analysis of search and seizure law found in ¶ 23 of its opinion. Suppression of evidence is only required if obtained in violation of an applicable constitutional right, or where a statute provides suppression as a remedy for violating the statute. Repenshek does not assert that either constitution requires that the PBT test results be suppressed, or that any statute so requires. I conclude that though the investigating officer improperly requested Repenshek to take a PBT, suppression of Repenshek's statement that he refused to take the test is not required. Accordingly, I respectfully concur.

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

       The State argues that, under the facts in this case, Repenshek was arrested for a drunk-driving related offense. We do not address that argument.

       In State v. Seibel, 163 Wis. 2d 164, 471 N.W.2d 226 (1991), the officer in charge of the investigation determined that the defendant should be arrested for homicide by negligent use of a motor vehicle and directed a different officer, through dispatch, to proceed to the hospital and arrest Seibel. This second officer, who had not been present at the accident scene, mistakenly informed Seibel that he was under arrest for operating a motor vehicle while under the influence of intoxicants. Id. at 168-69. The supreme court notes the mistake, but then analyzes Seibel’s situation as if he had been properly arrested for the non-drunk-driving offense of homicide by negligent use of a motor vehicle. Id. at 180-83.

       We note that although the first Bohling prong refers to an arrest, an actual arrest need not occur. Rather, "in the absence of an arrest, probable cause to believe blood currently contains evidence of a drunk-driving-related violation or crime satisfies the first prong of Bohling." State v. Erickson, 2003 WI App 43, ¶ 12, 260 Wis. 2d 279, 659 N.W.2d 407, review denied, 2003 WI 32, 260 Wis. 2d 752, 661 N.W.2d 101 (No. 01-3367-CR).

       Although the circuit court did not make express findings of fact, Repenshek does not suggest that the facts we rely on are contested, and our review of the suppression hearing reveals no reason to suppose the circuit court did not accept as true the officer's testimony with respect to the facts we rely on here.

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


author: LUNDSTEN, J.

text:
    McNally CPA's & Consultants, S.C., Plaintiff-Appellant, v. DJ Hosts, Inc., Defendant-Respondent.
    Court of Appeals

      No. 03-1159.

      Oral argument December 9, 2003.

    Decided November 24, 2004.

    2004 WI App 221
    (Also reported in 692 N.W.2d 247.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Randall J. Andersen and Robert A. Mich, Jr., of Kay & Andersen, S.C., Madison. There was oral argument by Randall J. Andersen.
    On behalf of the defendant-respondent, the cause was submitted on the brief of and oral argument by Michael R Murphy of the Ho-Chunk Nation Department of Justice.

    Before Deininger, PJ., Dykman and Lundsten, JJ.
   LUNDSTEN, J.

¶ 1. The Ho-Chunk Nation purchased 100% of the shares in DJ Hosts, Inc., a for-profit Wisconsin corporation. After the purchase, McNally CPA's, an accounting firm, sued DJ Hosts for money owed. The circuit court dismissed McNally's action based on tribal sovereign immunity. The court reasoned that because the Ho-Chunk, a federally recognized Indian tribe, wholly owns DJ Hosts, the Ho-Chunk's immunity extends to DJ Hosts. We disagree. DJ Hosts argues that the circuit court's decision should be upheld on the alternative ground that the Ho-Chunk is an indispensable party that may not be joined. We conclude that the Ho-Chunk is not an indispensable party. Accordingly, we reverse the circuit court's order and remand for the court to allow McNally to proceed with its action against DJ Hosts.

Background

¶ 2. A brief description of the corporate histoiy of DJ Hosts puts this case in the proper context. In August 1990, Carley Development Company, Inc., was organized as a for-profit Wisconsin corporation. Carley's name was changed to DJ Hosts in January 1995 by amendment to its articles of incorporation. The Ho-Chunk purchased all of the stock in DJ Hosts approximately two months after the name change.

¶ 3. McNally sued DJ Hosts in October 2000, claiming that DJ Hosts owed McNally approximately $29,000 plus interest for accounting, consulting, and other professional services. After DJ Hosts failed to timely answer McNally's amended complaint, McNally unsuccessfully moved for a default judgment. McNally later brought a second motion for default judgment, but before the circuit court decided McNally's motion, DJ Hosts moved to dismiss. DJ Hosts advanced two main arguments in support of its motion: (1) that the Ho-Chunk's sovereign immunity barred McNally's action against DJ Hosts, and (2) that the Ho-Chunk was an indispensable party under Wis. Stat. § 803.03 (1999-2000), such that, once joined, the Ho-Chunk's presence in the suit would require dismissal on immunity grounds.

¶ 4. The circuit court granted DJ Hosts' motion and dismissed McNally's action, concluding that the Ho-Chunk's sovereign immunity extended to DJ Hosts. The court did not address the indispensable party issue, presumably because the court's decision on immunity was dispositive. McNally appeals.

Discussion

Whether the Ho-Chunk's Immunity Extends to DJ Hosts

¶ 5. The parties agree that, but for the Ho-Chunk's status as an Indian tribe, DJ Hosts would be liable to McNally for fees for services that McNally rendered to DJ Hosts. The dispute centers on whether the Ho-Chunk's immunity from suit extends to DJ Hosts. That is a question of law, which we review de novo. See C & B Invs. v. Wisconsin Winnebago Health Dep't, 198 Wis. 2d 105, 108, 542 N.W.2d 168 (Ct. App. 1995).

¶ 6. We begin with the proposition that an Indian tribe’s purchase of a corporation's stock does not normally confer tribal immunity on the corporation. We think it is self-evident that if a tribe purchases, for example, shares in Microsoft, Microsoft does not gain tribal immunity in any measure. Moreover, the Ho-Chunk has not suggested that it matters that shares in DJ Hosts are not publicly traded. That is, the Ho-Chunk does not suggest that, for purposes of analyzing tribal immunity, there is a difference between a tribe owning shares of a publicly traded company, like Microsoft, and a tribe owning shares of a non-publicly traded company, like DJ Hosts.

¶ 7. Accordingly, the narrow question we address is whether tribal immunity is conferred on a corporation when all of the shares of that corporation are purchased by an Indian tribe. Applied to the facts here, the question is whether the Ho-Chunk’s purchase of 100% of the shares of DJ Hosts conferred tribal immunity on DJ Hosts. We conclude that when the sole facts are that an Indian tribe purchases all of the shares of an existing for-profit corporation and takes control over the operations of the corporation, tribal immunity is not conferred on the corporation. Thus, we conclude that DJ Hosts does not have immunity from the suit brought by McNally.

¶ 8. The Ho-Chunk's own tribal immunity from the type of lawsuit brought by McNally is beyond dispute. "[A]n Indian tribe is not subject to suit in a state court — even for breach of contract involving off-reservation commercial conduct — unless 'Congress has authorized the suit or the tribe has waived its immunity.' " C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe, 532 U.S. 411, 414 (2001) (quoting Kiowa Tribe v. Manufacturing Techs., Inc., 523 U.S. 751, 754 (1998)). In Kiowa Tribe, the United States Supremé Court declined to distinguish between a tribe's commercial and governmental activities for purposes of immunity from suits on contracts. See Kiowa Tribe, 523 U.S. at 760. Similarly, this court has recognized that the immunity of a tribe "extends to its business arms." C & B Invs., 198 Wis. 2d at 108. However, neither the United States Supreme Court nor any Wisconsin court has addressed whether or under what circumstances a tribe's immunity extends to a corporation in which a tribe owns stock.

¶ 9. DJ Hosts places primary reliance on four cases: Duke v. Absentee Shawnee Tribe of Oklahoma Housing Authority, 199 F.3d 1123 (10th Cir. 1999); Trudgeon v. Fantasy Springs Casino, 84 Cal. Rptr. 2d 65, 71 Cal. App. 4th 632 (Ct. App. 1999); Gavle v. Little Six, Inc., 555 N.W.2d 284 (Minn. 1996); and In re Ransom v. St. Regis Mohawk Education & Community Fund, Inc., 658 N.E.2d 989 (N.Y. 1995). All of these cases are easily distinguished.

¶ 10. Trudgeon, Gavie, and Ransom all involved corporations that were created by a tribe in the first instance. Trudgeon, 71 Cal. App. 4th at 635; Gavle, 555 N.W.2d at 287; Ransom, 658 N.E.2d at 991, 995. Duke is inapplicable for a number of reasons, not the least of which is that it involved subject matter jurisdiction, not tribal sovereign immunity. See Duke, 199 F.3d at 1124.

¶ 11. In addition, the cases DJ Hosts relies on do not involve the transition issue raised by this case and discussed at oral argument. We asked at oral argument when it was that the Ho-Chunk's immunity attached to DJ Hosts. DJ Hosts responded that immunity attached when the Ho-Chunk purchased shares in DJ Hosts. The consequence of this view, DJ Hosts acknowledged, would be that all pre-existing creditors lost their right to sue or to continue a suit against DJ Hosts for breach of contract upon the Ho-Chunk's stock purchase. Yet this court has justified the seemingly unfair effects of sovereign immunity in the contractual context by suggesting that a party dealing with a tribe is remiss in failing to seek a waiver of immunity before conducting business with the tribe:

"[P]laintiff is in a particularly poor position to complain of unfairness in light of the fact that he did not even avail himself of the protections that were available to him .... As was the case in Sac and Fox, the complaining party was 'free to request a waiver of sovereign immunity' before conducting business with the tribe, but did not do so. Sac and Fox Nation [v. Hanson], 47 F.3d [1061,] [] 1065 [(10th Cir. 1995)]."

C & B Invs., 198 Wis. 2d at 111 (quoting Federico v. Capital Gaming Int’l, Inc., 888 F. Supp. 354, 357 (D.R.I. 1995)). Of course, pre-existing creditors of a corporation such as D J Hosts would have had no opportunity to seek a waiver.

¶ 12. We next observe that the courts in the decisions that D J Hosts relies on endeavored to analyze whether a tribe-owned corporation was so integrated with the tribe that the policies behind tribal immunity were advanced by treating the corporation as a part of the tribe for immunity purposes. These policies include tribal self-determination, economic development, and cultural autonomy. Gavle, 555 N.W.2d at 292. Surveying the cases, we discern the following non-exclusive list of factors:

(1) Whether the corporation is organized under the tribe's laws or constitution;
(2) Whether the corporation's purposes are similar to or serve those of the tribal government;
(3) Whether the corporation's governing body is comprised mainly or solely of tribal officials;
(4) Whether the tribe's governing body has the power to dismiss corporate officers;
(5) Whether the corporate entity generates its own revenue;
(6) Whether a suit against the corporation will affect the tribe's fiscal resources;
(7) Whether the corporation has the power to bind or obligate the funds of the tribe;
(8) Whether the corporation was established to enhance the health, education, or welfare of tribe members, a function traditionally shouldered by tribal governments; and
(9) Whether the corporation is analogous to a tribal governmental agency or instead more like a commercial enterprise instituted for the purpose of generating profits for its private owners.

See Trudgeon, 71 Cal. App. 4th at 638-39; Gavle, 555 N.W.2d at 294; Ransom, 658 N.E.2d at 992.

¶ 13. In considering the applicability of these factors to DJ Hosts, we are particularly persuaded by the fact that, when a tribe purchases stock in an existing corporation, the tribe can choose to limit its risk to its investment in the stock. Indeed, the limited liability attribute of corporations is hailed as the ultimate significance of the corporate form. See Benjamin Plumbing, Inc. v. Barnes, 162 Wis. 2d 837, 850, 470 N.W.2d 888 (1991) (citing R. Hamilton, The 'Law of Corporations §§ 2.1, 2.5 (1980)).

¶ 14. Ransom, one of the cases relied on by DJ Hosts, provides a good example of the application of the various factors. In Ransom, the tribe established and funded a non-profit social services corporation for the benefit of tribe members. Ransom, 658 N.E.2d at 991, 993, 995. The Ransom court concluded that this corporation was "so closely allied with and dependent upon the tribe that it is entitled to the protection of tribal sovereign immunity." Id. at 993.

¶ 15. The non-profit corporation in Ransom, created by the tribe to provide direct services to tribe members, holds a place on the other end of the spectrum from the situation before us. So far as we can tell from the record, none of the factors listed above appreciably weigh in favor of DJ Hosts. It may be true that the Ho-Chunk does or can exercise complete control over the operations of DJ Hosts by virtue of its stock ownership, but control in this sense is not enough. If it were, immunity would attach whenever a tribe purchased a controlling interest in an ongoing, non-tribal for-profit corporation.

¶ 16. Notably, one case DJ Hosts relies on undercuts its argument. In Trudgeon, the California Court of Appeal stated:

[I]t is possible to imagine situations in which a tribal entity may engage in activities which are so far removed from tribal interests that it no longer can legitimately be seen as an extension of the tribe itself. Such an entity arguably should not be immune, notwithstanding the fact it is organized and owned by the tribe.

Trudgeon, 71 Cal. App. 4th at 639. Purchasing stock, even all of the stock, in an ongoing for-profit business seems to be just the sort of situation that the Trudgeon court envisioned would not confer immunity on the corporate entity. Here, we have the additional fact that the corporate entity was not created by a tribe.

¶ 17. DJ Hosts argues that it was, in effect, incorporated or "created" by the Ho-Chunk when the Ho-Chunk purchased all of the shares of Carley Development Company and renamed Carley to DJ Hosts, Inc. We first note that DJ Hosts' argument is imprecise; Carley Development was renamed DJ Hosts before the Ho-Chunk purchased the stock. But regardless how or when the name change came about, basic corporate principles as applied to the undisputed facts here make clear that DJ Hosts was not "created" by a name change and stock purchase. "A change in the name of a corporation does not constitute a reorganization of the corporation ...." 6 William Meade Fletcher et al., Fletcher Cyclopedia of the law of Private Corporations § 2451, at 166 (perm, ed., rev. vol. 1996).

A mere change in the name of a corporation generally does not destroy the identity of the corporation, nor in any way affect its rights and liabilities. A change of name by a corporation has no more effect upon the identity of the corporation than a change of name by a natural person has upon the identity of such person. It is the same corporation with a different name.

Id., § 2456, at 172-74 (footnotes omitted). Moreover, "[t]here is no termination of corporate existence, as a matter of law, merely because of a transfer of all the corporate assets." 8 William Meade Fletcher et al., Fletcher Cyclopedia of the law of Private Corporations § 4087, at 499 (perm, ed., rev. vol. 2001). Rather, a corporation "ordinarily continues existing unless there is a fixed period of existence which has lapsed, the corporation has been voluntarily dissolved, or the state has in some proper way taken away the corporate life." Id., § 4080, at 495. Here, the articles of incorporation for Carley Development stated that "[t]he period of existence of the corporation shall be perpetual." The amendment to the articles in the record shows no changes to the articles other than the change in name to "DJ Hosts, Inc." We therefore reject DJ Hosts' argument that it was somehow created or incorporated by the Ho-Chunk.

¶ 18. Our holding today, reflecting the facts before us, is narrow. We conclude that when the sole facts are that an Indian tribe purchases all of the shares of an existing for-profit corporation and takes control over the operations of the corporation, tribal immunity is not conferred on the corporation. It follows that DJ Hosts does not enjoy tribal sovereign immunity from the suit brought by McNally.

Whether the Ho-Chunk Is an Indispensable Party Under Wis. Stat. § 803.03

¶ 19. Because we conclude that the Ho-Chunk's immunity does not extend to DJ Hosts, we also address the question that the circuit court did not: whether the Ho-Chunk is an indispensable party to this action under Wis. Stat. § 803.03. DJ Hosts argues that even if it was not cloaked with the Ho-Chunk's immunity, the Ho-Chunk is an indispensable party such that dismissal of the action is required because the Ho-Chunk cannot he joined due to the tribe's immunity from suit.

¶ 20. The application of Wis. Stat. § 803.03 to undisputed facts is a question of law, which we review de novo. See Dairyland Greyhound Park, Inc. v. McCollum, 2002 WI App 259, ¶¶ 10, 25, 258 Wis. 2d 210, 655 N.W.2d 474.

¶ 21. The test of whether a party is indispensable has two parts. Id., ¶ 9; Courts first determine whether a party is "necessary" for one of the three reasons set forth in Wis. Stat. § 803.03(1). Dairyland, 258 Wis. 2d 210, ¶ 9. If none of the requirements for being a necessary party are met, the inquiry ends. Id. If a party is "necessary," but cannot be made a party, we must decide whether "in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable." Wis. Stat. § 803.03(3); see also Dairyland, 258 Wis. 2d 210, ¶ 9.

¶ 22. A party may be considered "necessary" for one of three reasons set forth in Wis. Stat. § 803.03(1). Because DJ Hosts has not told us which of the three reasons applies, we could stop here. See MCI, Inc. v. Elbin, 146 Wis. 2d 239, 244-45, 430 N.W.2d 366 (Ct. App. 1988) (courts need not consider undeveloped arguments). Nonetheless, we choose to put the issue to rest.

¶ 23. Looking to a brief that DJ Hosts filed in the circuit court, we find the following argument: the Ho-Chunk "would be a 'necessary' party to this case because it has a definite interest in the subject of the action and the tribe is so situated that the disposition of the case may impair or impede the tribe's ability to protect that interest." This argument apparently corresponds to Wis. Stat. § 803.03(l)(b)l. We conclude that the argument is unpersuasive, and contrast the circumstances here with the situation in Dairyland.

¶ 24. In Dairyland, we considered whether Indian tribes were necessary parties in the context of an action brought by Dairyland Greyhound Park against then-Governor Scott McCallum. Dairyland, 258 Wis. 2d 210, ¶¶ 1, 11. Dairyland sought to enjoin the governor from renewing the state's gaming compacts with Indian tribes having reservations or other land in Wisconsin. The governor, much like DJ Hosts, moved to dismiss, arguing that the tribes were necessary parties. See id., ¶¶ 1, 6, 11. Part of the test under Wis. Stat. § 803.03(1)(b)l. involves an inquiry into whether a party is situated such "that the disposition of the action in the [party]'s absence may ... [a]s a practical matter impair or impede the [party]'s ability to protect [the party's] interest." Wis. Stat. § 803.03(l)(b)l.; see also Dairyland, 258 Wis. 2d 210, ¶ 17. Dairyland asserted that the tribes could not satisfy this part of the test because (1) the governor could adequately protect the tribes' interest, and (2) the tribes' participation in the litigation as amicus curiae ensured that their concerns would be heard. Dairyland, 258 Wis. 2d 210, ¶ 17. We determined that the tribes were "necessary" under subsection (b)l. because (1) the financial consequences to the tribe were, relatively speaking, greater, (2) the' governor and the tribes had historically disagreed on issues relating to the scope of Indian gaming, and (3) the tribes appeared to be in a better position than the governor to advocate for supremacy of federal law over state law. Id., ¶¶ 18-19.

¶ 25. We discern no similar cause for concern here. Regardless whether the Ho-Chunk has more at stake than DJ Hosts, we can be confident here that the tribe and DJ Hosts do not have adverse positions and that DJ Hosts will make all of the arguments the Ho-Chunk would make because the Ho-Chunk's attorney is representing DJ Hosts.

¶ 26. Accordingly, we conclude that the Ho-Chunk is not a "necessary" party under Wis. Stat. § 803.03(1) and, thus, it cannot be an "indispensable" party.

Conclusion

¶ 27. Having concluded that the Ho-Chunk's immunity does not extend to DJ Hosts, and that the Ho-Chunk is not an indispensable party to this action, we reverse the circuit court's order and remand the matter to the court to allow McNally to proceed with its action against DJ Hosts.

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

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The parties submitted affidavits in support of their respective positions on DJ Hosts' motion to dismiss, and the circuit court treated the motion as one for summary judgment. This court reviews summary judgment decisions de novo, applying the same methodology employed hy the circuit court. Brownelli v. McCaughtry, 182 Wis. 2d 367, 372, 514 N.W.2d 48 (Ct. App. 1994). That methodology is well established and need not be repeated in its entirety. See, e.g., Lambrecht v. Estate of

        Kaczmarczyk, 2001 WI 25, ¶¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751. For our purposes, it is sufficient to state that the moving party is entitled to summary judgment only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See id., ¶ 24. This case involves no material factual disputes and turns on questions of law, which we resolve in favor of McNally.

       Courts in some jurisdictions have analyzed the applicability of tribal sovereign immunity to separate entities in terms of waiver, asking whether and under what circumstances a tribe waives its immunity by operating through a separate entity. See, e.g., In re Ransom v. St. Regis Mohawk Educ. & Cmty. Fund, Inc., 658 N.E.2d 989, 994-95 (N.Y. 1995). The parties, however, generally do not frame the issue in terms of waiver. We defer to the parties' presentation of the case, thereby considering the issue to be whether the Ho-Chunk's immunity extends to DJ Hosts in the first place.

       Although it is not clear from the case itself, Duke v. Absentee Shawnee Tribe of Oklahoma Housing Authority, 199 F.3d 1123 (10th Cir. 1999), apparently involved a state agency that was created under state statute on behalf of a tribe. The entity "was created to provide and maintain low-income housing for members of the Absentee Shawnee Tribe." Id. at 1124. According to Duke, the housing authority was organized under OKLA. Stat. tit. 63, § 1057. Duke, 199 F.3d at 1124-25. That statute reads, in part, as follows:
      There is hereby created, with respect to each Indian tribe, band, or nation in the state, a public body corporate and politic, to function in the operating area of such Indian tribe, hand, or nation to be known as the "housing authority" of said Indian tribe, band, or nation, which shall be an agency of the State of Oklahoma, possessing all powers, rights, and functions herein specified for city and county authorities created pursuant to this act: Provided that said Indian housing authority shall not transact any business nor exercise its powers hereunder until or unless the governing council of said tribe, band, or nation, as the case may be, by proper resolution, declares that there is a need for an authority to function for said tribe, band, or nation.

       We recognize that the United States Supreme Court's decision in Kiowa Tribe v. Manufacturing Technologies, Inc., 523 U.S. 751, 760 (1998), does not distinguish between a tribe's commercial and governmental activities for purposes of contract actions, whereas at least one of the ahove-listed factors does. Kiowa Tribe involved a suit directly against a tribe, not against a separate entity. Accordingly, the applicability oí Kiowa Tribe to the questions of whether and when tribal immunity extends to a separate entity in which a tribe owns stock is not apparent. In any event, we do not read Kiowa Tribe in the expansive manner argued by DJ Hosts, that is, we do not read Kiowa Tribe as standing for the proposition that any time a tribe purchases all of the stock in a separate, ongoing non-tribal commercial entity, tribal immunity is conferred on the purchased entity.

       DJ Hosts asserts that the Ho-Chunk members managed and controlled DJ Hosts, but the portions of the record cited by DJ Hosts do not provide much information about tribal involvement in the management and control of DJ Hosts. Regardless, we will assume for purposes of this decision that the Ho-Chunk members exercise substantial or complete control of DJ Hosts.

       We are uncertain what practical effect this decision has on the ability of tribes to acquire companies and extend tribal immunity to them. At oral argument, the attorney for DJ Hosts seemed to suggest that the transaction in this case could have been structured as an asset purchase and the dissolution of DJ Hosts, the result being that the Ho-Chunk would have directly owned the assets of DJ Hosts, rather than owning shares in a distinct corporate entity. If the purchase had proceeded in that fashion, the assertion of immunity from suit might be stronger. But, of course, we have no occasion to address that situation.

       Wisconsin Stat. § 803.03 reads, in part:
      (1) Persons to be joined if feasible. A person who is subject to service of process shall be joined as a party in the action if:
      (a) In the person's absence complete relief cannot be accorded among those already parties; or
      (b) The person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may:
      1. As a practical matter impair or impede the person's ability to protect that interest; or
      2. Leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his or her claimed interest.
      (3) Determination by court whenever joinder not feasible. If any such person has not been so joined, the judge to whom the case has been assigned shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If a person as described in subs. (1). .. cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include:
      (a) To what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties;
      (b) The extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided;
      (c) Whether a judgment rendered in the person's absence will be adequate; and
      (d) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.