author: SHIRLEY S. ABRAHAMSON, C.J. N. PATRICK CROOKS, J.

text:
    In re the Commitment of William L. Morford: State of Wisconsin, Petitioner-Respondent, v. William L. Morford, Respondent-Appellant-Petitioner.
    Supreme Court

      No. 01-2461.

      Oral argument September 9, 2003.

      Decided February 3, 2004.

    2004 WI 5
    (Also reported in 674 N.W.2d 349.)

      For the respondent-appellant-petitioner there were briefs by Lynn E. Hackbarth and Law Offices of Lynn Ellen Hackbarth, Milwaukee, and oral argument by Lynn E. Hackbarth.

    For the petitioner-respondent the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

        State v. Morford, No. 01-2461, unpublished slip op. (Wis. Ct. App. Nov. 19, 2002).

   SHIRLEY S. ABRAHAMSON, C.J.

¶ 1. This is a review of an unpublished decision of the court of appeals affirming orders of the circuit court for Milwaukee County, Daniel L. Konkol, Judge. The circuit court granted the district attorney's motion to reconsider its decision placing William L. Morford on supervised release and denied William L. Morford's motion for reconsideration. The circuit court concluded that Morford was still a sexually violent person and that it was still substantially probable that he would engage in acts of sexual violence if not placed in institutional care. The circuit court therefore granted the State relief from Morford's supervised release and ordered Morford committed to the custody of the Department of Health and Family Services (the department) for control, care, and treatment in an institutional setting.

¶ 2. Morford then moved the circuit court to reconsider its order of institutionalization for several reasons, including that the circuit court used statutorily improper proceedings to give the State relief from his supervised release. The circuit court denied Morford's motion, and Morford appealed from this order of denial.

¶ 3. The court of appeals affirmed the order of the circuit court, concluding that Wis. Stat. § (Rule) 806.07(l)(h) (1999-2000) governs reconsideration of the circuit court's original decision to place Morford on supervised release and that the requirements of § 806.07(l)(h) were satisfied.

¶ 4. The sole issue we address in this case is whether Wis. Stat. § 806.07(l)(h) or 980.08(6m) is the vehicle for changing the supervised release status of an individual who, like Morford, has been determined to be appropriate for supervised release but who remains institutionalized awaiting placement.

¶ 5. We hold that Wis. Stat. § 980.08(6m), rather than § 806.07(1)(h), governs granting relief to the State from a chapter 980 committee's supervised release when the committee is confined in an institution awaiting placement on supervised release. Any language or inference in State v. Castillo, 205 Wis. 2d 599, 556 N.W.2d 425 (Ct. App. 1996), State v. Williams, 2001 WI App 155, 246 Wis. 2d 722, 631 N.W.2d 623, or State v. Sprosty, 2001 WI App 231, ¶ 16, 248 Wis. 2d 480, 636 N.W.2d 213, limiting the application of § 980.08(6m) to a chapter 980 committee who has actually been released under supervised release into the community is withdrawn.

I

¶ 6. Morford is now on supervised release, and the issues he raised in order to obtain his supervised release are moot. A determination of these issues will have no practical effect on Morford.

¶ 7. Reviewing courts generally decline to decide moot issues but may do so under certain circumstances. This court has held that it may decide an otherwise moot issue if it: (1) is of great public importance; (2) occurs so frequently that a definitive decision is necessary to guide circuit courts; (3) is likely to arise again and a decision of the court would alleviate uncertainty; or (4) will likely be repeated, but evades appellate review because the appellate review process cannot be completed or even undertaken in time to have a practical effect on the parties.

¶ 8. We conclude that the sole issue proposed to be addressed, that is, the appropriate mechanism for changing the supervised release status of a chapter 980 committee who has been determined to be appropriate for supervised release but who remains institutionalized and awaiting placement, satisfies several exceptions to the mootness rule.

¶ 9. The release of a chapter 980 committee is an issue of great public importance because it implicates both the safety of the public and the rights of the detained individual.

¶ 10. The issue presented recurs with some frequency. This is the fourth time since 1996, in a published case, that the appropriate procedure for reconsidering a chapter 980 committee's supervised release has arisen, and a decision from this court will provide guidance to the circuit courts.

¶ 11. This issue is likely to arise again and may evade review. The time between a circuit court's determination that a person is eligible for supervised release and the person's being placed on supervised release may be substantial, as in the present case. Indeed, the statute contemplates a time lag between a circuit court's finding a person eligible for supervised release and the actual placement on supervised release. The Department of Health and Family Services prepares a plan for supervised release that the circuit court must review and approve. Furthermore, while a chapter 980 committee litigates a denial of supervised relief, he or she may in the interim — as occurred in this case — be placed on supervised release, making the cases moot and tending to evade review.

¶ 12. We conclude that the issue raised by this case that we address satisfies exceptions to the mootness rule, and we therefore address it.

II

¶ 13. This case is procedurally convoluted, and we set forth an abbreviated version of the facts relevant to render a decision on the sole issue we address.

¶ 14. On July 31,1997, Morford was committed as a sexually violent person under Wis. Stat. chapter 980. Pursuant to the language of Wis. Stat. § 980.06(2)(a)(l) (1993-94) at the time of his commitment, the circuit court determined that he be placed on supervised release. Because no halfway house was available, Morford remained at the Wisconsin Resource Center (WRC), a secure facility. Morford appealed, arguing that he was entitled to be held in a less restrictive facility. The court of appeals agreed and directed the circuit court to oversee the search for an appropriate placement.

¶ 15. While the Department of Health and Family Services searched for a supervised release placement for Morford the circuit court repeatedly reviewed the status of the search, and Morford's case came up for two periodic reviews. The medical and psychological reports submitted during these periodic reviews suggested that Morford might not be appropriate for supervised release.

¶ 16. At a March 15, 2000, proceeding on the supervised release plan, the circuit court expressed concern that Morford was not an appropriate candidate for supervised release.

¶ 17. On May 4, 2000, the district attorney filed a document entitled "motion for reconsideration of supervised release." The motion cited no statutory authority as a basis for the motion.

¶ 18. The circuit court held evidentiary proceedings on the district attorney's motion on March 8, May 7, and May 8, 2001, and heard testimony from experts who evaluated Morford's suitability for supervised release. At the close of the proceedings, the circuit court granted the district attorney's motion for reconsideration. Although the circuit court never used the words "revocation of supervised release," the effect of the circuit court's order was to revoke Morford's supervised release. Morford sought reconsideration of the circuit court's order. The court of appeals affirmed the orders of the circuit court granting the district attorney's motion and denying Morford's motion for reconsideration.

Ill

¶ 19. The question whether Wis. Stat. § 806.07(l)(h) or 980.08(6m) is the vehicle for changing the supervised release status of a chapter 980 committee who has not yet been released requires interpretation of two statutes, Wis. Stat. §§ 806.07(l)(h) and 980.08(6m). The interpretation of statutes is a question of law that this court decides independently of the circuit court and court of appeals, but benefiting from the analysis of both.

¶ 20. To decide the issue presented, we examine both Wis. Stat. § 806.07(l)(h) and 980.08(6m), as well as three cases of the court of appeals that have touched upon the interplay between these two statutes.

¶ 21. Our goal in interpreting statutes is to discern and give effect to the intent of the legislature. Statutory interpretation begins with the language of the statute. Each word should be looked at so as not to render any portion of the statute superfluous. But "courts must not look at a single, isolated sentence or portion of a sentence" instead of the relevant language of the entire statute. Furthermore, a statutory provision must be read in the context of the whole statute to avoid an unreasonable or absurd interpretation. Statutes relating to the same subject matter should be read together and harmonized when possible. A cardinal rule in interpreting statutes is to favor an interpretation that will fulfill the purpose of a statute over an interpretation that defeats the manifest objective of an act. Thus a court must ascertain the legislative intent from the language of the statute in relation to its context, history, scope, and objective, including the consequences of alternative interpretations.

IV

¶ 22. We first consider the language of the statutes in question. Section 806.07(l)(h), which is part of chapter 806 entitled "Civil Procedure — Judgment," provides for relief from a judgment or order for any reasons justifying relief from the operation of the judgment. Section 806.07 applies to all civil actions and special proceedings, "except where different procedure is prescribed by statute or rule." A chapter 980 proceeding is a civil action and § 806.07 may, by its terms, apply to a chapter 980 proceeding unless a different procedure is prescribed by statute or rule. We therefore must determine whether a different procedure is prescribed by chapter 980 with respect to the reconsideration of determinations of supervised release.

¶ 23. Section 980.08 governs the procedure for supervised release of a person committed under chapter 980. Section 980.08(1) provides who may petition for the release of a sexually violent person and when they may do so. Section 980.08(4) concerns the factors a court may consider in deciding whether to release an individual and the burden of proof required to prevent a sexually violent person from being released. Section 980.08(5) governs the placement process. Finally, § 980.08(6m) controls the circumstances under which an individual's supervised release may be revoked and who may initiate such revocation proceedings.

¶ 24. The key sentences in Wis. Stat. § 980.08(6m), for purposes of the present case, governing revocation of supervised release read as follows:

If the department alleges that a released person has violated any condition or rule, or that the safety of others requires that supervised release be revoked, he or she may be taken into custody under the rules of the department. ... The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked, it may revoke the order for supervised release and order that the released person be placed in an appropriate institution until the person is discharged from the commitment under s. 980.09 or until again placed on supervised release under this section, (emphasis added).

¶ 25. These key sentences of § 980.08(6m) are susceptible to at least two readings. If we read the first sentence grammatically, the adjective "released" modifying the noun "person" applies only to the first clause of the sentence and not to the second clause of the sentence, which is logically separated by the disjunctive "or." In other words, the department must allege and prove either (1) that a released person has violated any condition or rule, or (2) that the safety of others requires that supervised release be revoked. The second sentence quoted above supports this grammatical reading. Under this reading, Wis. Stat. § 980.08(6m) governs not only those chapter 980 committees who are actually released but also those who are awaiting placement on supervised release. The last sentence uses the phrase released person and therefore can be read, as the court of appeals did in this case, to mean that a circuit court may revoke supervised release if the department alleges and proves either (1) that a released person has violated any condition or rule, or (2) that a released person jeopardizes the safety of others. Under this reading, Wis. Stat. § 980.08(6m) governs only those chapter 980 committees who are actually released on supervised release.

¶ 26. This seeming ambiguity in the key sentences of Wis. Stat. § 980.08(6m) is not resolved by looking at the subsection as a whole or the subsection in the context of chapter 980. Indeed chapter 980 has other conflicting language. For instance, Wis. Stat. § 980.08(6m) and other provisions in chapter 980 use the word "custody" inconsistently.

¶ 27. The use of the word "custody" in Wis. Stat. chapter 980 is particularly problematic. In § 980.06, a person who is deemed sexually violent "shall he committed to the custody of the department for control, care and treatment." After a committed individual is found to be appropriate for supervised release, an order for supervised release, according to § 980.08(6m), "places the person in the custody and control of the department." Further, under § 980.08(6m), if the "department alleges that a released person has violated any condition or rule, or that the safety of others requires that supervised release be revoked, he or she may be taken into custody under the rules of the department." Read literally, these provisions make little sense, since they thrice place the committed individual in the custody of the department without ever having actually removed him from the department's custody. This is just one example in which chapter 980 is less than clear on its face.

¶ 28. Keeping in mind the linguistic shortfalls of § 980.08(6m), we examine how the court of appeals has interpreted § 980.08(6m) to aid our own interpretive process.

¶ 29. Three court of appeals cases are relevant. In State v. Castillo, 205 Wis. 2d 599, 556 N.W.2d 425 (Ct. App. 1996), the court of appeals declared that Wis. Stat. § 980.06(2)(d) (1993-94), the precursor to § 980.08(6m), did not provide a statutory basis for courts to revoke the supervised release order of a sexually violent person who had not, as yet, been physically released from a secure facility. Section 980.08(6m), according to Castillo, "pertains only to released persons who are already under the custody and control of DHSS."

¶ 30. In Castillo, the 14-year-old defendant was found delinquent on two counts of first-degree sexual assault. Before Castillo's release, the State filed a petition under Wis. Stat. chapter 980 to commit him as a sexually violent person. Castillo offered to acknowledge that the allegations contained within the petition were true and to waive his right to a trial if the department placed him in a community-based facility.

¶ 31. The department experienced difficulty in placing Castillo and moved to reopen the order and modify it to allow Castillo to be placed in a secure facility. The circuit court granted the State's motion and placed Castillo at the WRC. The court of appeals reversed the circuit court and concluded that the State breached its plea agreement with Castillo by requesting the modification and allowed Castillo to withdraw his plea.

¶ 32. The precursor to Wis. Stat. § 980.08(6m) was not directly at issue before the court of appeals in Castillo and § 806.07(1) is not mentioned in the opinion. The issue before the court of appeals was whether the State had breached the plea agreement and whether Castillo should have been allowed to withdraw his plea admitting the allegations supporting the petition to commit him as a sexually violent person. The question of what statutory authority the State could use to initiate revocation proceedings with regard to an individual who had not yet been released was a secondary issue to be reached only if Castillo were not allowed to withdraw his plea.

¶ 33. The court of appeals concluded in Castillo that the State was not relieved of its burden to comply with the plea agreement merely because finding an appropriate placement proved difficult. The court of appeals' language dealing with the key sentences we address was brief, conclusory, and without explanation or full analysis of the statutory language. The parties' briefs in Castillo expended little effort on this issue, and the court of appeals followed suit. The court of appeals' language relating to the applicability of Wis. Stat. § 980.08(6m) was dicta not necessary to the decision in the case.

¶ 34. Although this court granted a petition for review in Castillo, none of the parties briefed the Wis. Stat. § 980.08(6m) issue in this court. The petition for review was ultimately dismissed as improvidently granted, and this court made no mention of § 980.08(6m) in disposing of the case.

¶ 35. Castillo does not provide much of a foundation for concluding that Wis. Stat. § 806.07(1)(h) applies to the present case. The court of appeals has seemingly followed the Castillo dicta three times, but its subsequent cases have not strengthened or built upon Castillo's weak foundation.

¶ 36. In State v. Williams, 2001 WI App 155, 246 Wis. 2d 722, 631 N.W.2d 623, a chapter 980 committee challenged a circuit court's order granting the State's motion for relief from a prior order granting the committee's petition for supervised release. Without addressing the underlying question whether § 806.07(1) was an appropriate mechanism to grant relief from the supervised release of a sex offender, the court of appeals concluded that the "new evidence" that the State provided to justify the relief was not new under § 806.07(1). In making its decision, the court of appeals did not cite Castillo, much less justify or explain its reliance on § 806.07 for a chapter 980 case.

¶ 37. After the Williams case came State v. Sprosty, 2001 WI App 231, ¶ 16, 248 Wis. 2d 480, 636 N.W.2d 213, in which the court of appeals assumed, without discussion, that Wis. Stat. § 806.07(1) could be used to grant the State relief from a supervised release. The court of appeals focused on whether "extraordinary circumstances" were present to justify the statute's use in that particular case. Again, the court of appeals did not cite Castillo or Williams for the proposition at issue. It did not explain or justify its reliance on § 806.07 in a chapter 980 case.

¶ 38. In the present case, the court of appeals determined that Wis. Stat. § 806.07(1) applied to the facts of the case, but again its opinion provides no further assistance in analyzing whether § 806.07(1) should apply at all. Again the court of appeals cited no case in support of its conclusion. Its opinion on this issue is, like the opinions in the other three cases, brief and conclusory, without any citation to prior cases.

¶ 39. The court of appeals' reasoning is somewhat different in the present case, however, and requires additional consideration. In this case, the court of appeals relied on the label the district attorney and circuit court placed on the proceeding to conclude that Wis. Stat. § 806.07(l)(h) applied. The court of appeals stated that the proceeding was titled a motion for reconsideration of supervised release rather than a motion to revoke Morford's supervised release, even though neither the district attorney nor the circuit court cited any statutory authority, including Wis. Stat. § 806.07(1)(h) or § 980.08(6m), justifying the proceeding. The court of appeals reasoned that § 980.08(6m) could not govern such a proceeding because a § 980.08(6m) proceeding would have to have been brought by the Department of Health and Family Services. The court of appeals recognized that the motion in this case was brought by the district attorney. It therefore looked at the label the district attorney and the circuit court placed on the motion, namely "reconsideration," and concluded without further explanation that "the proceedings in question were held in accordance with § 806.07 rather than § 980.08(6m)."

¶ 40. The State urges us to withdraw the dicta in Castillo (and any reliance thereon in Williams and Sprosty) that the appropriate vehicle for the State to seek relief from a chapter 980 committee's pending supervised release is under Wis. Stat. § 806.07. The State reminds us that circuit courts and the court of appeals have no power to disavow Castillo's reliance on Wis. Stat. § 806.07(1)(h). Only this court may do so.

¶ 41. The State urges us to hold that Wis. Stat. § 980.08(6m), not § 806.07(1)(h), applies and the State seeks relief from a chapter 980 committee's status of supervised release when the committee has not yet been released on supervised release. The State asks this court to hold that the Department of Health and Family Services may petition for revocation of supervised release under Wis. Stat. § 980.08(6m) whenever it believes that a person who is the subject of a supervised release decision (whether or not the individual is released on supervised release) violates any condition or rule or threatens the safety of others.

¶ 42. We agree with the State. Wisconsin Stat. § 980.08(6m) is better suited for granting the State relief from a chapter 980 committee's supervised release than § 806.07(1)(h), regardless of whether the chapter 980 committee has actually been placed on supervised release. We conclude that the court of appeals erred in its interpretation of § 980.08(6m). We reach this conclusion for several reasons.

¶ 43. First, as we explained previously, the text of Wis. Stat. § 980.08(6m) can be read to support the notion that if a chapter 980 committee is awaiting placement on supervised release and continues to be held in a secure facility, the department may petition for revocation of a determination of supervised release.

¶ 44. Second, Wis. Stat. § 980.08(6m) provides a comprehensive scheme for releasing chapter 980,com-mittees on supervised release and for revoking supervised release. By effectively occupying the field on the subject, the legislature implicitly sought to preclude procedural short-cuts like the one provided by § 806.07(1)(h). Interpreting Wis. Stat. § 980.08(6m) as governing chapter 980 committees pending placement on supervised release supports the legislature's intent to establish a comprehensive, uniform, and fair procedure for supervised release. "The spirit or intention of the statute should govern over the literal or technical meaning of the language used."

¶ 45. Third, using Wis. Stat. § 806.07(1)(h) to grant the State relief from supervised release presents far more tortuous interpretive issues than reading § 980.08(6m) as governing the present case. Individuals committed under chapter 980 are entitled to due process protections such as reasonable notice, the right to counsel, the right to remain silent, the right to present and cross-examine witnesses, and the use of the heightened burden of proof of clear and convincing evidence. Section 806.07(l)(h) does not provide these protections.

¶ 46. To assure due process, the concurrence reads into Wis. Stat. § 806.07(l)(h) the constitutional protections provided under chapter 980.

¶ 47. This court would have to perform interpretive backbends to retrofit the protections afforded by Wis. Stat. chapter 980 onto § 806.07(1)(h). If we must choose between applying the due process protections under chapter 980 to Wis. Stat. § 806.07(1)(h) or interpreting § 980.08(6m) as applying to chapter 980 committees awaiting placement under supervised release, it is not a difficult choice. We see no reason to tack the protections afforded by chapter 980 onto Wis. Stat. § 806.07(1)(h) when § 980.08(6m) is readily available to apply to the present case. Using § 806.07(1)(h) needlessly complicates granting the State relief from a chapter 980 committee's supervised release.

¶ 48. Fourth, attempting to engraft chapter 980 onto Wis. Stat. § 806.07(1) would pose legal problems requiring future litigation. For example, a circuit court makes different findings under §§ 806.07(1)(h) and 980.08(6m). Under § 806.07(1)(h), a circuit court must find extraordinary circumstances in order to relieve a party from an order or judgment. Under § 980.08(6m), a circuit court must find that a released person has violated any condition or rule or that the safety of others requires that supervised release be revoked.

¶ 49. Furthermore, different standards of appellate review may be implicated under the two sections. The standard of review under Wis. Stat. § 806.07(1)(h) is erroneous exercise of discretion. The standard for review under § 980.08(6m), however, is, according to the State's brief, more complex depending on whether a request for revocation alleges a violation of a rule or condition of supervised release or alleges that the safety of others requires revocation.

¶ 50. The State asserts that the clearly erroneous standard of review applies to the factual determination of whether a rule or condition was violated. When revocation is initiated on grounds of public safety, unresolved questions of the appropriate standard of appellate review and the powers of a circuit court are presented, according to the State: For purposes of appellate review, is a circuit court's determination about the safety of others a question of fact or law or a mixed question of fact and law? After finding that the safety of others requires revocation of supervised release, does a circuit court have discretion to modify the supervised release rather than revoke it?

¶ 51. These and other problems can be avoided entirely by applying Wis. Stat. § 980.08(6m) to chapter 980 committees awaiting placement under supervised release. Applying § 980.08(6m) favors judicial economy and lends clarity to this body of law.

¶ 52. Fifth, allowing a circuit court or district attorney to initiate proceedings on their own motion using Wis. Stat. § 806.07(1)(h) to grant the State relief from supervised release is inappropriate because it circumvents the important gate-keeping function of the Department of Health and Family Services. In Wis. Stat. § 980.08(6m), the legislature placed the initial decision to seek revocation solely in the hands of the department.

¶ 53. The department is an integral part of the procedural protections provided to a chapter 980 committee in Wis. Stat. chapter 980. The department is charged with the "custody and control" of a sexually violent person, whether the chapter 980 committee is institutionalized or on supervised release. The legislature thus views the department as being in the best position to evaluate the various risks and benefits of placing a committed individual on supervised release or revoking supervised release.

¶ 54. It is the department that has sufficient experience dealing with sexually violent persons, as well as experience with the particular individual who has been committed, to make a sound, dispassionate, and unbiased decision regarding a committed person's condition. Wisconsin Stat. § 980.08(6m) provides no procedure for initiating revocation other than by the department, and nothing in chapter 980 suggests that the legislature envisioned another method for doing so.

¶ 55. Allowing a circuit court to initiate proceedings on its own motion, as it in effect did here, or allowing a district attorney to initiate proceedings, as happened here, is contrary to the intent of the legislature, subjugates the authority of the department to the will of a circuit court or district attorney and vitiates an important safeguard the legislature provided for sex offenders.

¶ 56. For all of these reasons, we hold that Wis. Stat. § 980.08(6m), rather than § 806.07(1)(h), governs granting relief to the State from a chapter 980 committee's supervised release when the committee is confined in an institution awaiting placement on supervised release. Any language or inference in State v. Castillo, 205 Wis. 2d 599, 556 N.W.2d 425 (Ct. App. 1996), State v. Williams, 2001 WI App 155, 246 Wis. 2d 722, 631 N.W.2d 623, or State v. Sprosty, 2001 WI App 231, ¶ 16, 248 Wis. 2d 480, 636 N.W.2d 213, limiting the application of § 980.08(6m) to situations in which a chapter 980 committee has actually been released into the community under supervised release, is withdrawn.

By the Court. — Rights declared.

N. PATRICK CROOKS, J.

¶ 57. (concurring). I concur with the majority only because I agree that the issue before us is moot. I write separately, however, because I conclude that Wis. Stat. § 806.07(l)(h) was used appropriately here to consider a person's supervised release status when that person has not as yet been released. I would not overrule or distinguish State v. Sprosty (Sprosty III), 2001 WI App 231, 248 Wis. 2d 480, 636 N.W.2d 213, State v. Brown, 215 Wis. 2d 716, 573 N.W.2d 884 (Ct. App. 1997), and State v. Castillo, 205 Wis. 2d 599, 556 N.W.2d 425 (Ct. App. 1996). Rather, I would follow and apply such precedent in this case.

¶ 58. I am persuaded that the protections for such persons that are contained within Wis. Stat. ch. 980 are applicable when Wis. Stat. § 806.07(1)(h) is used. Here, however, the majority robs local district attorneys and circuit judges of a necessary tool for review of a supervised release order where extraordinary circumstances exist and protection of the public requires swift action.

¶ 59. Although the majority overrules Castillo, I would not do so, since Castillo accurately points out that Wis. Stat. § 980.08(6m) refers only to released persons. Castillo, 205 Wis. 2d at 609. To hold that sec. 980.08(6m) is applicable to persons who have not yet been released ignores the plain language of the statute. Thus, sec. 980.08(6m) cannot be used where a supervised release order is reviewed in regard to a person who continues to be institutionalized, nor can it be used by a district attorney or a judge who is concerned for the public's safety.

¶ 60. The reasoning in Brown is also applicable to this case. In Brown, the court of appeals observed that Wis. Stat. § 801.01(2) provided that Wis. Stat. chs. 801-847 apply to all civil proceedings, unless otherwise indicated by statute. Brown, 215 Wis. 2d at 721. Wisconsin Stat. ch. 980 does not contain statutory language mandating that a procedure other than Wis. Stat. § 806.07(l)(h) be used in circumstances such as those presented here. A proceeding under ch. 980 is a civil proceeding and does not contain language to the contrary. Thus, I am satisfied that sec. 806.07(l)(h) may be used in proceedings such as the one we are reviewing here.

¶ 61. Moreover, in Sprosty III, the court of appeals determined that Wis. Stat. § 806.07(1) (h) could be used in Wis. Stat. ch. 980 proceedings. Sprosty III, 248 Wis. 2d 480, ¶ 2. I agree with the court of appeals' conclusion that the requirement that extraordinary circumstances be present before relief is granted under sec. 806.07(1)(h) sufficiently guards against the haphazard use of this provision. Id., ¶ 16.

¶ 62. With respect to Morford's proceedings, Wis. Stat. § 806.07(l)(h) was used appropriately to review and grant relief from the supervised release order. After conducting the evidentiary hearings, the circuit court found that the State presented new evidence that demonstrated that Morford was still a sexually violent person. The circuit court applied Wis. Stat. ch. 980 standards in rendering its decision as to whether the State's motion, pursuant to sec. 806.07(l)(h), should be granted.

¶ 63. Further, according to Wis. Stat. § 980.08(6m), the appropriate burden of proof is clear and convincing evidence. Where Wis. Stat. § 806.07(1)(h) is used to review and grant relief from an order granting supervised release, I conclude that, consistent with sec. 980.08(6m), the State must prove "by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked." Wis. Stat. § 980.08(6m). The circuit court applied the clear and convincing evidence burden in deciding the State's motion here.

¶ 64. In the past, this court has concluded that Wis. Stat. ch. 980 provides sufficient safeguards for committing sexually violent persons and does not violate due process rights. In State v. Post, 197 Wis. 2d 279, 293-94, 541 N.W.2d 115 (1995), we held that ch. 980 did not violate the substantive due process guarantees of the United States and Wisconsin Constitutions. We rejected the respondents' arguments that a finding of a mental disorder, as required by ch. 980, was not narrowly tailored to comply with strict scrutiny. Id. at 307. We concluded that ch. 980, as drafted, ensures that only dangerous sexual predators with predispositions to reoffend are committed as sexually violent persons. Id. Moreover, we concluded that treatment was a legitimate goal under ch. 980. Id. at 311. We also rejected the respondents' arguments that ch. 980's definition of dangerousness was unconstitutional. Id. at 312. We stated that the Wisconsin Legislature's framework for discerning whether a person was predisposed to commit sexually violent acts was constitutionally sound. Id. at 312-13. Finally, we concluded that ch. 980 comported with due process regarding concerns of nature and duration of commitment. Id. at 316.

¶ 65. In State v. Rachel, 2002 WI 81, ¶ 68, 254 Wis. 2d 215, 647 N.W.2d 762, we held that, as amended, Wis. Stat. ch. 980 continued to comport with substantive due process requirements. We noted that, simply because a sexually violent person's access to supervised release was curtailed, ch. 980 did not violate due process. Id., ¶ 66. We concluded that the intent of ch. 980 was satisfied where proceedings could be initiated to determine whether the dangerousness of the individual was commensurate with the level of physical confinement imposed. Id.

¶ 66. In State v. Laxton, 2002 WI 82, ¶ 23, 254 Wis. 2d 185, 647 N.W.2d 784, we held that Wis. Stat. ch. 980 satisfied the requirements of due process because, implicit in the finding that an individual should be committed as a sexually violent person because he or she has a mental disorder and is dangerous, is the presumption that the individual has difficulty in controlling his or her behavior. Because ch. 980 distinguishes between recidivists, in general, and individuals whose mental disorder makes it substantially probable that the person will engage in sexually violent behavior, we concluded that ch. 980 is narrowly tailored and, thus, comports with due process. Id.

¶ 67. I am satisfied that due process requires that the protections embodied in Wis. Stat. ch. 980 remain applicable when Wis. Stat. § 806.07(1)(h) is used to review and, perhaps, provide relief from an order granting supervised release. State v. VanBronkhorst, 2001 WI App 190, ¶ 7, 247 Wis. 2d 247, 633 N.W.2d 236. Sexually violent persons have a right to due process protections in ch. 980 revocation proceedings. Id. The court of appeals in VanBronkhorst stated that, in revocation proceedings under ch. 980, sexually violent persons are entitled to the same due process protections as those afforded to parolees and probationers. Id., ¶ 9. Simply because sec. 806.07(1)(h) is used to review and grant relief from an order for supervised release, it does not follow that sexually violent persons should be without the protections afforded by ch. 980.

¶ 68. Applying the protections of Wis. Stat. ch. 980 to Wis. Stat. § 806.07(1)(h) provides appropriate protection to the public and to a sexually violent person as well. With respect to public safety, Wis. Stat. § 980.08(6m) allows the court to consider the safety of others when determining whether a person's supervised release should be revoked. Those same safety considerations should not be discarded simply because sec. 806.07(l)(h) is used to review a supervised release order.

¶ 69. Sexually violent persons are also protected under this framework. Wisconsin Stat. ch. 980 affords multiple protections to sexually violent persons, which will remain applicable when Wis. Stat. § 806.07(1)(h) is used. Wisconsin Stat. § 980.03 outlines the rights persons have when the State files a ch. 980 petition against them. For example, under sec. 980.03(1), the person is guaranteed reasonable notice of the hearing. Further, the court of appeals has held that when a court acts on its own motion pursuant to sec. 806.07(1), parties must be given notice and be afforded the opportunity to be heard. In Gittel v. Abram, 2002 WI App 113, ¶ 27, 255 Wis. 2d 767, 649 N.W.2d 661, the court of appeals allowed a court, sua sponte, to initiate consideration under § 806.07(1). Id. In Morford's case, a motion was brought by the State, after the circuit court seemed to suggest that a review was necessary.

¶ 70. Under Wis. Stat. § 980.03(2), a person has the right to counsel, the right to remain silent, the right to present and cross-examine witnesses, and the right to have the hearing recorded by a court reporter. Section 980.03(4) provides that when a person is required to undergo an examination under Wis. Stat. ch. 980, he or she is allowed to hire his or her own expert to conduct an examination. Section 980.03(4) further provides that the county will pay for a court appointed expert for indigent persons.

¶ 71. Considerations of due process require that sexually violent persons must be afforded the same protections when Wis. Stat. § 806.07(1) (h) is used, as would be applicable when Wis. Stat. ch. 980 is used for a review of a supervised release order or status.

¶ 72. The majority needlessly binds the hands of district attorneys and circuit judges, and vests all of the power in the hands of the Department of Health and Family Services. Both district attorneys and circuit judges should be permitted to use Wis. Stat. § 806.07(l)(h), when necessary where extraordinary circumstances exist, to consider prior supervised release orders. By placing the burden on DHFS entirely, the majority accepts the risk that sexually violent persons, who still pose a danger to others, will be released because DHFS did not move for review of the person's continuing violent tendencies, as occurred here.

¶ 73. In summary, I conclude that Wis. Stat. § 806.07(1)(h) provided authority for the circuit court's consideration of its prior supervised release order. Here, sec. 806.07(1)(h) was used appropriately to review Morford's supervised release status and to grant relief from the circuit court's previous order. Where such statutory section is used, however, the protections afforded by Wis. Stat. ch. 980 to a person previously found to be sexually violent are still applicable, in order to satisfy the requirements of due process. Such protections were afforded to. Morford in this case. These protections include the right to have reasonable notice of the hearing, the right to counsel, the right to remain silent, the right to present and cross-examine witnesses, the right to have the hearing recorded by a court reporter, and the use of the heightened burden of proof of clear and convincing evidence.

¶ 74. Rather than follow established precedent, the majority, in this case, tosses it out and, in doing so, robs local district attorneys and circuit judges of a necessary tool for review of a supervised release order where extraordinary circumstances exist, and protection of the public requires swift action.

¶ 75. For the foregoing reasons, I respectfully concur.

¶ 76. I am authorized to state that Justices JON E WILCOX and PATIENCE D. ROGGENSACK join this concurrence.

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

       Morford argues, in part, that neither Wis. Stat. § 980.08(6m) nor § 806.07(1) provides a procedure for granting the State relief from a supervised release for which placement has not been made. We are not convinced by this argument. The legislature could not have intended that the State be able to get relief from the supervised release of a chapter 980 committee in the community under supervised release but not from the supervised release of an individual who is awaiting release. Such an interpretation of the statutes produces an absurd result that is contrary to the purposes of chapter 980.

       We granted the petition for review in this case on March 13, 2003. On April 28, 2003, the defendant was placed on supervised release pursuant to a subsequent periodic review. On September 9, 2003, we heard oral argument in the case.

        In re John Doe Proceeding, 2003 WI 30, ¶ 19, 260 Wis. 2d 653, 660 N.W.2d 260.

        See In re Commitment of Rachel, 2002 WI 81, ¶¶ 76-80, 254 Wis. 2d 215, 647 N.W.2d 762 (Bradley, J., concurring) (discussing the difficulty of finding appropriate placement facilities for sexually violent persons and the concomitant delay).

       Wis. Stat. § 980.08(5).

       The legislature removed the supervised release option for the initial commitment in 1999. See 1999 Wis. Act 9, § 3223(h).

        See State v. Cole, 2003 WI 59, ¶ 12, 262 Wis. 2d 167, 663 N.W.2d 700.

        Cole, 262 Wis. 2d 167, ¶ 13 (citing State v. Szulczewski, 216 Wis. 2d 495, 504, 574 N.W.2d 660 (1998)).

        Landis v. Physicians Ins. Co. of Wis., 2001 WI 86, ¶ 16, 245 Wis. 2d 1, 628 N.W.2d 893; Alberte v. Anew Health Care Servs., 2000 WI 7, ¶ 10, 232 Wis. 2d 587, 605 N.W.2d 515.

        Landis, 245 Wis. 2d 1, ¶ 16 (quoting Alberte, 232 Wis. 2d 587, ¶ 10).

        Alberte, 232 Wis. 2d 587 ¶ 10.

        Cole, 262 Wis. 2d 167, ¶ 13 (citing State v. Leitner, 2002 WI 77, ¶ 30, 253 Wis. 2d 449, 646 N.W.2d 341).

        State v. Davis, 2001 WI 136, ¶ 13, 248 Wis. 2d 986, 637 N.W.2d 62.

        Cole, 262 Wis. 2d 167, ¶ 13 (citing State v. Davis, 2001 WI 136, ¶ 13, 248 Wis. 2d 986, 637 N.W.2d 62).

       Wisconsin Stat. § 806.07(1) reads as follows:
      Relief from judgment or order. (1) On motion and upon such terms as are just, the court, subject to subs. (2) and (3), may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:
      (a) Mistake, inadvertence, surprise, or excusable neglect;
      (b) Newly-discovered evidence which entitles a party to a new trial under s. 805.15(3);
      (c) Fraud, misrepresentation, or other misconduct of an adverse party;
      (d) The judgment is void;
      (e) The judgment has been satisfied, released or discharged;
      (f) A prior judgment upon which the judgment is based has been reversed or otherwise vacated;
      (g) It is no longer equitable that the judgment should have prospective application; or
      (h) Any other reasons justifying relief from the operation of the judgment.

       Wis. Stat. § 801.01(2).

        In re Commitment of Lombard, 2003 WI App 163, ¶ 26, 266 Wis. 2d 887, 669 N.W.2d 157 (chapter 980 proceedings are civil, not criminal, in nature); In re Commitment of Thiel, 2001 WI App 52, ¶ 9, 241 Wis. 2d 439, 625 N.W.2d 321 (refusing to follow rule of retroactive application of changes in the criminal law because chapter 980 proceedings are civil, not criminal).

        See, e.g., In re Commitment of Treadway, 2002 WI App 195, ¶ 22, 257 Wis. 2d 467, 651 N.W.2d 334 (number of peremptory challenges available in chapter 980 proceedings governed by civil procedure rules); In re Commitment of Wolfe, 2001 WI App 136, ¶ 48, 246 Wis. 2d 233, 631 N.W.2d 240 (general provisions of civil procedure inapplicable with respect to commencing chapter 980 proceedings because chapter 980 provides its own mechanism for commencing an action); State v. Brown, 215 Wis. 2d 716, 718-21, 573 N.W.2d 884 (Ct. App. 1997) (individuals subject to chapter 980 proceedings have a right to judicial substitution because Wis. Stat. § 801.01(2) states that the procedures of Wis. Stat. chs. 801-847 apply to all civil proceedings except where different procedure is prescribed by statute or rule).

       Wisconsin Stat. § 980.08(1) states that:
      (1) Any person who is committed under s. 980.06 may petition the committing court to modify its order by authorizing supervised release if at least 18 months have elapsed since the initial commitment order was entered or at least 6 months have elapsed since the most recent release petition was denied or the most recent order for supervised release was revoked. The director of the facility at which the person is placed may file a petition under this subsection on the person's behalf at any time.

       Wisconsin Stat. § 980.08(4) provides, in part, that:
      The court shall grant the petition unless the state proves by clear and convincing evidence that the person is still a sexually violent person and that it is still substantially probable that the person will engage in acts of sexual violence if the person is not continued ■in institutional care. In making a decision under this subsection, the court may consider, without limitation because of enumeration, the nature and circumstances of the behavior that was the basis of the allegation in the petition under s. 980.02(2)(a), the person's mental history and present mental condition, where the person will live, how the person will support himself or herself and what arrangements are available to ensure that the person has access to and will participate in necessary treatment, including pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen if the person is a serious child sex offender.

       Wisconsin Stat. § 980.08(5) provides, in part, that:
      If the court finds that the person is appropriate for supervised release, the court shall notify the department. The department and the county department under s. 51.42 in the county of residence of the person, as determined under s. 980.105, shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment.

       Wisconsin Stat. § 980.08(6m) reads in its entirety as follows:
      980.08(6m) An order for supervised release places the person in the custody and control of the department. The department shall arrange for control, care and treatment of the person in the least restrictive manner consistent with the requirements of the person and in accordance with the plan for supervised release approved by the court under sub. (5). A person on supervised release is subject to the conditions set by the court and to the rules of the department. Before a person is placed on supervised release by the court under this section, the court shall so notify the municipal police department and county sheriff... .If the department alleges that a released person has violated any condition or rule, or that the safety of others requires that supervised release be revoked, he or she may be taken into custody under the rules of the department. The department shall submit a statement showing probable cause of the detention and a petition to revoke the order for supervised release to the committing court and the regional office of the state public defender responsible for handling cases in the county where the committing court is located within 72 hours after the detention, excluding Saturdays, Sundays and legal holidays. The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. Pending the revocation hearing, the department may detain the person in a jail or in a hospital, center or facility specified by s. 51.15(2). The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked, it may revoke the order for supervised release and order that the released person be placed in an appropriate institution until the person is discharged from the commitment under s. 980.09 or until again placed on supervised release under this section, (emphasis added).

       The legislature renumbered Wis. Stat. § 980.06(2)(d) to Wis. Stat. § 980.08(6m) in 1999. See 1999 Wis. Act 9, § 3223(1).

        State v. Castillo, 205 Wis. 2d 599, 609, 556 N.W.2d 425 (Ct. App. 1996) (emphasis in original).

         Id. at 603.

        Id. at 604-05.

        Id.

        Id. at 605-06.

        Id. at 606.

         Id. at 608.

       Id at 611.

       For discussions of Wisconsin's views on dictum, see, e.g., State v. Picotte, 2003 WI 42, ¶¶ 60-61 n.16, 261 Wis. 2d 249, 661 N.W.2d 381 (reviewing two lines of cases on dictum); State v. Leitner, 2002 WI 77, ¶ 22 n.16, 253 Wis. 2d 449, 646 N.W.2d 341 (same); State v. Sartin, 200 Wis. 2d 47, 60 n.7, 546 N.W.2d 449 (1996) ("dictum is a statement in a court's opinion that goes beyond the facts in the case and is broader than necessary and not essential to the determination of the issues before it"; dictum is not controlling); State v. Koput, 142 Wis. 2d 370, 386 n.12, 418 N.W.2d 804 (1988) (it is not inappropriate for a court to evaluate statements in Supreme Court opinions on the basis of whether they constitute dicta); Nicholson v. Home Ins. Cos., 137 Wis. 2d 581, 602, 405 N.W.2d 327 (1987) (disapproving of discussion of reducing clause in Radlein v. Indus. Fire & Cas. Ins. Co., 117 Wis. 2d 605, 345 N.W.2d 874 (1984), as dicta); Am. Family Mut. Ins. Co. v. Shannon, 120 Wis. 2d 560, 565, 356 N.W.2d 175 (1984) (adopting the generally accepted doctrine that "a statement not addressed to the question before the court or necessary for its decision" is dictum, and not binding on the court); Reiter v. Dyken, 95 Wis. 2d 461, 474, 290 N.W.2d 510 (1980) (same).

        State v. Castillo, 213 Wis. 2d 488, 570 N.W.2d 44 (1997).

       The Sprosty court did cite State v. Williams, 2001 WI App 155, 246 Wis. 2d 722, 631 N.W.2d 623, for the standard of review, however. State v. Sprosty, 2001 WI App 231, ¶ 18, 248 Wis. 2d 480, 636 N.W.2d 213.

       The relevant portion of the court of appeals’ decision states as follows:
      Morford mischaracterizes the hearing below as a revocation proceeding, held pursuant to Wis. Stat. § 980.08, rather than a hearing on the State's motion for reconsideration, held pursuant to Wis. Stat. § 806.07. First, as admitted by Morford, DHFS did not file a petition to revoke his supervised release, a procedure required by both § 980.08(6m) and due process. See State v. VanBronkhorst, 2001 WI App 190, ¶¶ 7-8, 247 Wis. 2d 247, 633 N.W.2d 236. Second, on May 4, 2000, the State filed a motion entitled, "motion for reconsideration of supervised release." Third, and finally, at the outset of the evidentiary hearing held on this matter, the trial court informed the parties that they were proceeding on the "State's motion [ ] for reconsideration of the supervised release." Thus, we conclude that the proceedings in question were held in accordance with § 806.07 rather than § 980.08(6m). Accordingly, the trial court was statutorily authorized to review the order granting Morford's supervised release.

        State v. Morford, No. 01-2461, unpublished slip op., ¶ 9 (Wis. Ct. App. Nov. 19, 2002).

       The State nevertheless argues that § 806.07(1)(h) should be available one last time in this case because Castillo dictated its use. We need ,not decide this issue because it is moot.

        Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) ("If the court of appeals is to be a unitary court, it must speak with a unified voice. If the constitution and statutes were interpreted to allow it to overrule, modify or withdraw language from its prior published decisions, its unified voice would become fractured, threatening the principles of predictability, certainty and finality relied upon by litigants, counsel and the circuit courts.").

        Id, ("[O]nly the supreme court, the highest court in the state, has the power to overrule, modify or withdraw language from a published opinion of the court of appeals.").

        City of Madison v. Town of Fitchburg, 112 Wis. 2d 224, 236, 332 N.W.2d 782 (1983).

       For a discussion of these issues, see Brief of Petitioner-Respondent at 16-30.

       The court of appeals in this case recognized that who initiates "revocation" proceedings is important because it may implicate due process rights. State v. Morford, No. 01-2461, unpublished slip op. at ¶ 9 (Wis. Ct. App. Nov. 19, 2002) ("DHFS did not file a petition to revoke his supervised release, a procedure required by both § 980.08(6m) and due process.”). See also State v. VanBronkhorst, 2001 WI App 190, ¶¶ 7-8, 247 Wis. 2d 247, 633 N.W.2d 236.

       Wis. Stat. § 980.08(6m).

       A circuit court apparently has authority to rescind at least part of its order and decision under Wis. Stat. § 806.07(l)(h) as long as both parties have adequate notice. Gittel v. Abram, 2002 WI App 113, ¶ 2, 255 Wis. 2d 767, 649 N.W.2d 661 (will contest case).

       In State v. Post, 197 Wis. 2d 279, 293-94, 541 N.W.2d 115 (1995), we also held that Wis. Stat. ch. 980 did not violate the equal protection guarantees of the United States and Wisconsin Constitutions.

       Wis. Stat. § 980.08(2)(a).

       Wis. Stat. § 980.08(2) (b).

       Wis. Stat. § 980.08(2)(c).

       Wis. Stat. § 980.08(2)(d).


source: Caselaw Access Project

author:
N. PATRICK CROOKS, J.
      ANN WALSH BRADLEY, J.

license: Public Domain

text:
    Patricia H. Roth, Petitioner-Respondent-Petitioner, v. LaFarge School District Board of Canvassers, Respondent-Respondent, Gail J. Muller, Third Party-Petitioner-Appellant.
    Supreme Court

      No. 02-0542.

      Oral argument October 8, 2003.

      Decided February 4, 2004.

    2004 WI 6
    (Also reported in 677 N.W.2d 599.)

      For the petitioner-respondent-petitioner there were briefs by Christopher J. Blythe and Lawton & Cates, S.C., Madison, and oral argument by Christopher J. Blythe.

    For the third party-petitioner-appellant there was a brief by George C. Wilbur, LaFarge, and oral argument by George C. Wilbur.

    For the respondent-respondent there was a brief (in the court of appeals) by David L. Jenkins and Jenkins and Stittleburg, Viroqua.
   N. PATRICK CROOKS, J.

¶ 1. The petitioner, Patricia H. Roth (Roth), seeks review of a published court of appeals' decision, reversing the order of the Vernon County Circuit Court, which had concluded that a "no" vote cast in the LaFarge School District referendum should not be counted. Because we conclude that, on the ballot in question consistent with Wis. Stat. § 7.50(2)(c) (1999-2000), there is a qualifying mark in a qualifying place, we hold that the court of appeals' decision should be affirmed and that, using § 7.50(2)(c), the "no" vote should be counted. We conclude that with proper application of § 7.50(2) (c) the intent of the voter becomes readily ascertainable in this case. We further conclude that the Board of Canvassers (Board) did not properly apply the statute since, on the ballot in question, there is a qualifying mark in a qualifying place. The November 2000 referendum thus ended in a tie vote, and the question of funding for school improvements was defeated.

I

¶ 2. The November 7, 2000 referendum was held to determine whether a project for school improvements should proceed. After the polls closed, the referendum ballots were counted. According to the returns, 392 votes were cast for the referendum, and 392 votes were cast against the referendum. Wisconsin Stat. § 5.01(4)(d) directs that when the voting results in a tie, the referendum has been defeated.

¶ 3. Roth, an elector of the LaFarge School District who voted in the referendum, requested a recount of the ballots pursuant to Wis. Stat. § 9.01. The Board conducted a recount on November 11, 2000. The recount resulted in a tie, as 389 votes were cast for the referendum and 389 votes were cast against the referendum. Thus, the Board declared that the referendum had failed.

¶ 4. During the recount, the Board disqualified three "yes" votes and three "no" votes. Of the three "yes" votes, one was disqualified because the initials of only one poll worker were on the ballot, as opposed to the two sets of initials that are required by Wis. Stat. § 7.50(2). Of the three "no" votes, one was disqualified because the Board determined that the mark had been erased and, thus, should not be counted under § 7.50(2)(c). Gail Muller (Muller), an elector of the LaFarge School District who voted in the referendum, was present at the recount, and questioned the Board's assessment that the mark had been erased.

¶ 5. Pursuant to Wis. Stat. § 9.01(6), Roth filed a notice of appeal in the Vernon County Circuit Court, asserting that the "yes" vote was improperly disqualified. Muller filed a motion for intervention. Muller stated that she had an interest in the referendum's outcome and, as no other party represented her interests, she would be harmed if the circuit court prevented her from intervening. Moreover, Muller attached to her motion a proposed counterclaim to the effect that the "no" vote was improperly disqualified. Roth opposed Muller's motion to intervene, stating that Muller should not be allowed to oppose Roth's claim or raise new legal issues, because she failed to comply with the time directives of § 9.01(6)(a).

¶ 6. Vernon County Circuit Judge Michael Rosborough determined that Muller should not be allowed to intervene because she was time barred. The circuit court further held that the "yes" vote should have been counted, despite the fact that some of the procedural requirements were not followed. The circuit court noted that Wis. Stat. § 5.01(1) emphasizes that statutes are to be construed so as to give effect to the intent of the voter. Muller appealed.

¶ 7. The court of appeals concluded that the circuit court erred when it prevented Muller from asserting her own claim. The court noted that the deadline for filing an appeal is applicable to aggrieved parties only. The court of appeals noted that Muller was not an aggrieved party, as she opposed the referendum and the recount resulted in its failure. Thus, Muller had no standing to appeal the referendum results. Nevertheless, the court of appeals reasoned that Muller satisfied the necessary requirements to intervene as a matter of right, and should be able to raise her own claim. The court of appeals further concluded that the circuit court correctly decided that the "yes" vote should have been counted. However, because the "no" vote was not part of the record, the court of appeals remanded the cause to the circuit court, for a determination of whether the Board's conclusion that voter intent could not be ascertained from the ballot, was supported by substantial evidence.

¶ 8. Circuit Judge Michael McAlpine found that the Board did not misinterpret Wis. Stat. § 7.50(2)(c).

The circuit court noted that determining voter intent is a finding of fact. The court determined that there was substantial evidence, pursuant to Wis. Stat. § 9.01(8), supporting the Board's decision. Muller appealed.

¶ 9. The court of appeals concluded that the circuit court and the Board erroneously interpreted and applied Wis. Stat. § 7.50(2)(c). The court of appeals concluded that § 7.50(2)(c) is ambiguous, as it lends itself to two possible interpretations. It could require both the presence of a mark and an intent to vote. Conversely, § 7.50(2)(c) could be interpreted to stand for the proposition that any mark indicates an intent to vote. While attempting to resolve the ambiguity within § 7.50(2)(c), the court of appeals noted that the legislature prefers to validate ballots and save them from invalidity. The court of appeals reasoned that § 7.50(2)(c) provides that there is an intent to vote when there is a mark in the appropriate space. Thus, the court of appeals concluded that, since there was a mark in the space designated for a "no" vote, the "no" vote should be counted, a decision that resulted in a tie vote on the referendum.

¶ 10. The LaFarge School District held a referendum in November 2003. At oral argument, it was suggested that the question of whether the "no" vote should be counted may be rendered moot by the outcome of the November 2003 referendum. Since that referendum has now been conducted, under the circumstances that now exist, we will address the issue of whether the Board properly applied Wis. Stat. § 7.50(2)(c), in regard to the referendum held on November 7, 2000.

II

¶ 11. As an initial matter, we must address Roth's allegation that the court of appeals violated the law of the case doctrine. Roth asserts that the court in Roth v. LaFarge Sch. Dist. Bd. of Canvassers, 2001 WI App 221, 247 Wis. 2d 708, 634 N.W.2d 882 (Roth I) concluded that the Board's determination was a finding of fact, which the circuit court should review using Wis. Stat. § 9.01(8). Roth further argues that the Roth I court stated that Wis. Stat. § 7.50(2) (cm) does not stand for the proposition that an apparent erasure must be counted. Roth claims that the court of appeals ignored its own directives in Roth v. LaFarge Sch. Dist. Bd. of Canvassers, 2002 WI App 309, 259 Wis. 2d 349, 655 N.W.2d 471 (Roth II), when it concluded that the "no" vote should have been counted as a matter of law. Moreover, she claims that in Roth II the court stated that, according to 7.50(2)(cm), an apparent erasure signifies an intent to vote. Roth argues that the court of appeals violated the law of the case doctrine, as Roth I and Roth II have inconsistent holdings.

¶ 12. We are not bound by the law of the case doctrine. In Univest Corp. v. Gen. Split Corp., 148 Wis. 2d 29, 38-39, 435 N.W.2d 234 (1989), we noted that "the law of the case doctrine is not a rule to which this court is bound by any legislative enactment, nor is it a rale to be inexorably followed in every case." We further held that "once the case is before us, it is within our discretion under these standards to review any substantial and compelling issue which the case presents, regardless of whether a prior decision established the law of the case." Id. at 39. Thus, we are in no way bound by the court of appeals' determination in this matter, but certainly we benefit from the decisions of the court of appeals, the circuit court, and the Board of Canvassers.

Ill

¶ 13. We now address whether Wis. Stat. § 7.50(2)(c) was correctly applied in this case. As noted previously, during oral argument, Muller's attorney stated that the LaFarge School District would be holding a new referendum in November 2003. Muller's' attorney stated that if the new referendum passed, the results of the November 2000 referendum would be negated. Thus, he stated, the issue before this court could be rendered moot. A case is moot if a decision in the matter will not have any practical effect upon an existing legal controversy. Milwaukee Police Ass'n v. Milwaukee, 92 Wis. 2d 175, 183, 285 N.W.2d 133 (1979).

¶ 14. Nevertheless, this court may address a moot issue if: (1) the issue is of great public importance; (2) the situation occurs so frequently that a definitive decision is necessary to guide circuit courts; (3) the issue is likely to arise again and a decision of the court would alleviate uncertainty;.or (4) the issue will likely be repeated, but evades appellate review because the appellate review process cannot be completed or even undertaken in time to have a practical effect on the parties. State ex rel. Hensley v. Endicott, 2001 WI 105, ¶ 5, 245 Wis. 2d 607, 629 N.W.2d 686. Whether the LaFarge School District's referendum passes is an important issue, and this court should render a decision in this case, regardless of whether the matter is moot or not.

¶ 15. We review the court of appeals' decision, which reviewed the decision of the Board, not the decision of the circuit court. Univ. of Wisconsin v. Dane County, 2000 WI App 211, ¶ 10, 238 Wis. 2d 810, 618 N.W.2d 537. The Board of Canvasser's determination was, in this case, a determination as a matter of law, since it involved the interpretation and application of a statute. More specifically, we must determine whether the Board of Canvassers committed a legal error with respect to its interpretation and application of Wis. Stat. § 7.50(2)(c). This court reviews the legal conclusions of such a board de novo. Bar Admission of Vanderperren, 2003 WI 37, ¶ 20, 261 Wis. 2d 150, 661 N.W.2d 27; "K" Care, Inc. v. Town of Lac du Flambeau, 181 Wis. 2d 59, 65, 510 N.W.2d 697 (Ct. App. 1993).

¶ 16. To aid in our discussion, a description of the ballot in question is warranted. In the box to the right of the word "no" on the ballot, there is a clearly visible slash (\) mark written in pencil. See attached exhibit at page 354.

¶ 17. Roth asserts that the Roth II court misinterpreted Wis. Stat. § 7.50(2)(c). Roth contends that there must be both a mark and an intent to vote by the voter, in order for a vote to qualify under § 7.50(2)(c). Roth states that this construction is supported by the language in § 7.50(2). According to Roth, the legislature intended to provide for the Board's subjective analysis when voter intent was not clear. Roth further asserts that the interpretation proposed by Roth II, that even apparent erasures must be counted, flies in the face of Wis. Stat. § 5.01(1). Roth argues that, under this interpretation, even a flaw in the paper would have to be counted as a vote.

¶ 18. Muller counters that the legislature's intent, by enacting Wis. Stat. § 5.01(1), was to give effect to the will of voters. Muller contends that an erasure must actually remove the mark. If there is a mark, Muller asserts that the Board must count the mark as a vote, as the legislature did not give the Board discretion to declare that a visible mark is an erasure. Muller states that, according to the requirements set forth in Wis. Stat. § 7.50(2)(c), the "no" vote should be counted. Section 7.50(2)(c) states, in relevant part, that a vote should be counted "(i)f an elector marks a ballot with a cross (X), or any other marks, as I, A, V, O, /, , +, within the square to the right of the candidate's name,. .. indicating an intent to vote for that candidate." Muller contends that the language of § 7.50(2)(c) is not qualified by the clause "unless it is light or looks erased." Muller asserts that the Roth II court's interpretation of § 7.50(2)(c) comports with long established Wisconsin precedent to give effect to the will of the voter, as exemplified in voter intent cases such as State ex rel. Wood v. Baker, 38 Wis. 71 (1875), and Ollmann v. Kowalewski, 238 Wis. 574, 300 N.W. 183 (1941).

¶ 19. Wisconsin courts have consistently noted that they do not want to deprive voters of the chance to have their votes counted. In State ex rel. Wood, 38 Wis. at 84, this court was confronted with the question of whether a defective voter registry should result in the disenfranchisement of voters. We stated that a statute provided for voter supervision of the process of voter registry, but the fact that the registry was defective did not mean that the votes should not be counted. Id. at 88. The statute allowing the voters' voluntary supervision of the registry had to be construed, so as to render the right of suffrage unencumbered and unimpaired. Id.

¶ 20. In State ex rel. Blodgett v. Eagan, 115 Wis. 417, 418, 91 N.W 984 (1902), two ballots were originally excluded from an election for the office of assessor because the voters wrote in, in longhand, the name of one candidate, yet failed to cross out the name of the candidate whom they did not intend to elect. After discussing Wisconsin's tradition of giving effect to the will of the voter, this court stated that the voter's intention that can be discerned from the ballot itself should control. Id. at 419-20. We concluded that "the voter shall not be disenfranchised because of mere mistake, but his intention shall prevail. . . ."Id. at 421.

¶ 21. In State ex rel. Symmonds v. Barnett, 182 Wis. 114, 129, 195 N.W 707 (1923), we concluded that registered voters, whose names had been omitted from the voter registry lists through the fault of election officials, should not have their votes invalidated. The Barnett opinion noted the State ex rel. Wood reasoning, which stated that voters should not be deprived of their constitutional right to vote simply because election officials have failed to perform their duties. Id. at 132. Although a statutory provision provided that ballots must be indorsed with the initials of a ballot clerk in order to be declared valid, the fact that this provision was not complied with did not invalidate the absentee voter ballots at issue. Id. We noted that to disqualify the ballots would deprive the voters of their constitutional rights, because of the negligence of the election officers. Id.

¶ 22. In State ex rel. Graves v. Wiegand, 212 Wis. 286, 288, 249 N.W 537 (1933), the inspectors at several election precincts failed to comply with a statute that directed the appropriate procedures that were to be used when returning ballots to the county clerk. Nevertheless, this court held that the votes should be counted. Id. at 296. We stated that the primary concern was the protection of the rights and interests of the voters. Id. at 292. Voting statutes are to be construed so as to give effect to the intent of the voter, notwithstanding the fact that there was a failure to comply with some of the provisions governing elections. Id. Moreover, we noted, significantly, that ballots are the best evidence of the intention of voters. Id. at 293.

¶ 23. In Ollmann, 238 Wis. at 577-78, this court refused to disqualify ballots where two ballot clerks each wrote their own initials and the initials of the other clerk on each ballot that was cast. Although this practice violated the statute governing the initialing of the ballots, we noted that to construe the statute as mandatory would be unconstitutional in this case. Id. at 578. We analogized the situation to the circumstances that were present in State ex rel. Wood and stated that the failure on the part of the election officials to perform their duties should not deprive the voters of their constitutional right to vote. Id. at 579. A ballot legally cast by a voter cannot be rejected, if it expresses the will of the voter. Id. at 580. Moreover, this court stated that a ballot could not be randomly withdrawn from consideration simply because the number of votes cast could not be reconciled with the number of names checked off of the registry. Id. The voters would be disenfranchised if their ballots were removed from consideration through no fault of their own. Id.

¶ 24. In Petition of Leuch, 244 Wis. 305, 317, 12 N.W.2d 61 (1943), we held that the voters who cast their ballots in the election for municipal judge should not be disenfranchised, because the election commissioners did not have enough time to reprint the ballots so as to include the name of a new candidate. Although there was no statutory authority for the board's action in printing stickers and pasting them on the ballots, the statutory framework for elections should be construed so as to give effect to the will of the voters. Id. at 314. We further noted a relevant statutory provision, which stated that ballots should be counted for the persons for whom they were intended when voter intent can be ascertained. Id.

¶ 25. In Hackbarth v. Erickson, 147 Wis. 2d 467, 433 N.W.2d 266 (1988), the court of appeals gave effect to the will of the voter even when the error was due to the voter's own mistake. In Hackbarth, the court of appeals declined to disqualify eight ballots that were marked with an "X" in the box after the mayoral candidate's name, yet also contained the candidate's name as a write-in for the position of alderman. Id. at 469. Noting Wisconsin's longstanding tradition of giving effect to the will of the voter, the court rejected the idea that the ballot markings could be attributed to the mistake or indecision of the voter. Id. at 473.

¶ 26. We recognize that many of the abovementioned cases involve mistakes committed by election officials, and not whether a voter apparently expressed his or her intent, as was at issue in this case. Nevertheless, we think Wisconsin's position on recognizing voter intent is clear. It is evident that this court has consistently placed a premium on giving effect to the will of the voter. Thus, we conclude that the Board legally erred when it misapplied Wis. Stat. § 7.50(2)(c), resulting in the disqualification of the "no" vote. The Board may use its discretion and make findings only when the standards of a statute do not apply. By enacting § 7.50(2)(c), the legislature attempted to minimize a board's discretion. Here, § 7.50(2)(c) applies, as there is a qualifying mark in a qualifying place on the ballot at issue.

¶ 27. We conclude that with proper application of Wis. Stat. § 7.50(2)(c) the intent of the voter becomes readily ascertainable in this case. Section 7.50(2)(c) provides that a vote will be counted if a cross, slash, or other mark similar to the eight examples listed in the statute is present in a qualifying place on the ballot. An examination of the ballot in question reveals that, at the very least, there is a slash through the box to the right of the word "no." Pursuant to § 7.50(2)(c), the mark was made in a qualifying place on the ballot, as it was placed in the box to the right of the word "no." Because there is a qualifying mark in a qualifying place on the ballot, the vote should be counted, so as to give effect to the will of the voter.

¶ 28. Roth asserts that the reasoning in Schmidt v. West Bend Bd. of Canvassers, 18 Wis. 2d 316, 118 N.W.2d 154 (1962) appropriately resolves the question before us. In Schmidt, we were confronted with the question of whether a cancelled voting mark should be counted as a vote cast for that candidate. Id. at 321. The ballot in question contained a cross in the square opposite a mayoral candidate, which was rendered barely visible by a heavy shading that filled the square entirely. Id. In contrast, the squares for the three other offices on the ballot were marked with a simple "X." Id. In Schmidt, we stated that the circuit court reasonably concluded that the shading, which obliterated the entire square, reflected the voter's effort to cancel his or her vote for the mayoral candidate. Id.

¶ 29. We disagree that the facts in this case may be likened to the circumstances in Schmidt. In Schmidt, there was an attempt to achieve a complete obliteration of the vote. Moreover, the ballot in Schmidt contained other marks that indicated an intent to vote for candidates running for other offices. In this case, there is a mark that fits within the category of those enumerated by Wis. Stat. § 7.50(2)(c). In contrast to Schmidt, there is no indication that the voter in this case attempted to remove his or her vote from consideration. Moreover, the voter in this case was required to vote for only one issue. Thus, there is no further example of the voter's marks for other candidates or issues, rendering a comparison between the mark in question and other marks made by the voter impossible in this situation. Due to the significant differences between Schmidt and the present circumstances, we conclude that Schmidt is distinguishable from the facts of this case. Because the ballot in this case indicates an intent to vote "no" on the referendum, we conclude that this vote should be counted.

IV

¶ 30. We affirm the court of appeals' decision and hold that, consistent with Wis. Stat. § 7.50(2)(c), the "no" vote should be counted. We conclude that with proper application of § 7.50(2)(c) the intent of the voter becomes readily ascertainable in this case. We further conclude that on the ballot in question, there is a qualifying mark in a qualifying place. The Board of Canvassers did not properly apply § 7.50(2)(c); the November 2000 referendum, therefore, resulted in a tie vote, and the question of funding for school improvements was defeated.

By the Court. — The decision of the court of appeals is affirmed.

ANN WALSH BRADLEY, J.

¶ 31. {concurring). I, like the majority, would count this vote. However, I reach this conclusion in a manner very different from that embraced by my colleagues. We part ways because I believe that the majority accurately describes only a part of the picture. As a result, it ignores a standard of review, which requires here that the Board of Canvasser's findings of fact be upheld. Accordingly, I respectfully concur.

¶ 32. We should have learned long ago that by accurately describing only a part of the picture, we run the risk of distorting the whole. So it was for those who contested the claim that the world was round. By accurately describing only that part which was visible and flat, they distorted the whole.

¶ 33. And, so it is with the majority. By accurately describing part of the ballot as containing "a clearly visible slash mark (\) written in pencil" (Majority op., ¶ 16) but failing to describe the rest of the picture, the majority runs the risk of distorting the whole.

¶ 34. The whole, as viewed by the Board of Canvassers, depicts an indentation on the ballot of a forward slash mark (/), crossing the light backward slash mark described by the majority and forming a completed (X). It is this colorless forward slash mark that caused the Board to make its finding of fact that the mark constituted an erasure.

¶ 35. In fairness to the majority, it is unclear whether the indentation on the ballot constituting the colorless (or nearly colorless) forward slash mark occurred because of a malfunctioning mechanical pencil or because of an erasure. What is clear, however, is that the Board is the trier of fact, and that pursuant to Wis. Stat. § 9.01(8), the court may not substitute its own view of the facts for that of the Board of Canvassers. DeBroux v. Bd. of Canvassers for the City of Appleton, 206 Wis. 2d 321, 331, 557 N.W.2d 423 (Ct. App. 1996).

¶ 36. Wisconsin Stat. § 9.01(8), which details the scope of appellate review, provides in relevant part that:

[T]he court may not substitute its judgment for that of the board of canvassers or the chairperson or designee as to the weight of the evidence on any disputed finding of fact. The court shall set aside the determination if it finds that the determination depends on any finding of fact that is not supported by substantial evidence.

¶ 37. Here, the Board of Canvassers made a factual finding. With respect to the ballot in question, the recount minutes state the following: "one ballot looks erased — 3 canvassers cannot determine with reasonable certainty what was intended. Ballot set aside. (#0002)...."

¶ 38. In framing the issue in this case, the majority opinion ignores this factual finding. It portrays the case as dealing only with an interpretation of law, the statutory interpretation of Wis. Stat. § 7.50(2)(c). Majority op., ¶ 15. In doing so, it contravenes the explicit language of Wis. Stat. § 9.01(8), which mandates that "[t]he court shall separately treat disputed issues of procedure, interpretations of law and findings of fact."

¶ 39. After reviewing the ballot, I would conclude that the Board's finding is supported by substantial evidence. I have attached to this opinion an exhibit from the petitioner's brief, which is a dark photocopy of the disputed ballot. It reveals an "X" like figure, with the upper right side of the "X" missing. The original mark cannot be seen in the majority's photocopy of the ballot. It can be seen in part, however, in the darker photocopy submitted by the petitioner.

¶ 40. The fact that the backward slash portion of the "X" is very light and the forward slash indentation is partially missing provides substantial evidence to support the factual finding of an erasure. Accordingly, I would defer to the Board's factual finding.

¶ 41. Recognizing that the mark is an erasure, the next step is to determine which statute governs. The only statute that specifically addresses erasures in the context of elections is Wis. Stat. § 7.50(2)(cm). Admittedly, it is unclear from the language of the statute whether it is even applicable to the present case. Wis. Stat. § 7.50(2)(cm) speaks to ballots involving one or more different candidates for the same office, not one-issue referendums.

¶ 42. If the statute does not apply, the legislature has not spoken on the issue and we must look to the principle of inclusion (the legislative preference for counting ballots) for guidance. Assuming that Wis. Stat. § 7.50(2)(cm) does apply, however, the statute narrowly circumscribes when erasures are not to be counted.

¶ 43. Two conditions must be met before the vote is disqualified: (1) "the elector makes another mark, next to the name of one or more candidates for the same office," and (2) "counting of the mark would result in an excess number of votes cast for the office." Wis. Stat. § 7.50(2)(cm). Here, neither of those conditions precedent to disqualification is met. There are no other marks on the ballot. Further, there is no indication in the record that counting the vote would result in an excess number of votes cast. Because the conditions precedent for disqualifying a vote as an erasure are not met, I again return to the principle of inclusion.

¶ 44. Wisconsin's general principle of inclusion supports the conclusion of counting the vote in this case. As the majority correctly recognizes, this principle is supported by our precedent, "Wisconsin courts have consistently noted that they do not want to deprive voters of the chance to have their votes counted." Majority op., ¶¶ 19-25 (citing e.g., State ex. rel. Wood v. Baker, 38 Wis. 71 (1875), Ollmann v. Kowalewski, 238 Wis. 574, 300 N.W 183 (1941), Hackbarth v. Erickson, 147 Wis. 2d 467, 433 N.W.2d 266 (Ct. App. 1988)).

¶ 45. In sum, I believe that the Board's finding of an erasure should have been reviewed as a question of fact and not law. I would defer to that finding because an examination of the ballot reveals that it is supported by substantial evidence. However, because the conditions precedent to the statute governing erasures are not present, and Wisconsin's general principle of inclusion controls, I would count the vote.

       Unless otherwise indicated, all references to Wisconsin Statutes are to the 1999-2000 edition.

       The referendum ballot presented the voters with the following question:
      "Shall the following Initial Resolution be approved?"
      Initial Resolution Authorizing General Obligation Bonds of the School District of LaFarge in an Amount Not to Exceed $2,250,000
      The School Board of the School District of LaFarge (the "District") hereby resolves as follows:
      Under and by virtue of the provisions of Chapter 67, Wisconsin Statutes, the District shall issue its general obligation bonds, in a sum not to exceed the amount of $2,250,000, for the following purposes:
      (a) Constructing and equipping a locker room and fitness room addition totaling approximately 2,100 square feet to an existing Elementary, Junior High and Senior High Buildings located at 301 West Adams Street, LaFarge, Wisconsin;
      (b) Major/minor remodeling of existing Elementary, Junior and Senior High complex, including roof repair, asbestos removal, installation of elevator, lift and ramps for ADA accessibility, boiler replacement, window replacement, HVAC modifications, electrical upgrades and other general remodelling;
      (c) Bus garage flooring, parking and paving, drain tile and earth work and other fixed equipment; and
      (d) Architect, engineering, legal and closing costs
      At the bottom of the ballot, the word "yes" appeared with a box to the right of it, indicating the space for voters to mark. Similarly, the word "no" appeared with a box to the right of it.

       Wisconsin Stat. § 5.01(4)(d) provides, in relevant part: If a question is submitted to the electors and an equal number of votes are cast for and against adoption, the question fails adoption.

       Wisconsin Stat., §9.01 provides, in relevant part: (1) Petition; fees; general procedures, (a) Any candidate voted for at any election or any elector who voted upon any referendum question at any election may request a recount.

       The record indicates that the Board disqualified three absentee ballots due to the electors' failure to comply with the directions. Two votes were disqualified for failure to be witnessed, and one was disqualified due to the absence of an elector's signature on the absentee envelope. This resulted in the disqualification of one "yes" vote and two "no" votes. It is not specified why the other votes were disqualified.

       With respect to the "no" vote, the recount minutes state the following: "One ballot looks erased — 3 canvassers cannot determine with reasonable certainty what was intended. Ballot set aside. (#0002). Everyone in audience witnessed ballot — no challenges but a question by one (Gayle Muller)."

       Wisconsin Stat. § 9.01(6) provides, in relevant part:
      (a) Within 5 business days after completion of the recount determination by the board of canvassers in all counties concerned, or within 5 business days after completion of the recount determination by the chairperson of the board or the chairperson's designee whenever a determination is made by the chairperson or designee, any candidate, or any elector when for a referendum, aggrieved by the recount may appeal to circuit court.

       The decision of this court is later referred to as Roth v. LaFarge Sch. Dist. Bd. of Canvassers, 2001 WI App 221, 247 Wis. 2d 708, 634 N.W.2d 882 (Roth I).

       Pursuant to Wis. Stat. § 801.58, Muller filed a request for substitution of a new judge for Judge Michael Rosborough. Judge Michael McAlpine was subsequently assigned to this matter.

       Wisconsin Stat. § 7.50(2)(c) provides, in relevant part:
      (2) Ascertainment of intent. All ballots cast at an election which bear the initials of 2 inspectors shall be counted for the person or referendum question for whom or for which they were intended, so far as the electors' intent can be ascertained from the ballots notwithstanding informality or failure to fully comply with other provisions of chs. 5 to 12.
      (c) If an elector marks a ballot with a cross (X), or any other marks, as I, A, O, /, /, +, within the square to the right of a candidate's name, or any place within the space in which the name appears, indicating an intent to vote for that candidate, it is a vote for the candidate whose name it is opposite.

       Wisconsin Stat. § 9.01(8) provides, in relevant part:
      Unless the court finds a ground for setting aside or modifying the determination of the board of canvassers or the chairperson of the board or chairperson's designee, it shall affirm the determination. The court shall separately treat disputed issues of procedure, interpretations of law and findings of fact. The court may not receive evidence not offered to the board of canvassers or the chairperson or chairperson's designee except for evidence that was unavailable to a party exercising due diligence at the time of the recount or newly discovered evidence that could not with due diligence have been obtained during the recount, and except that the court may receive evidence not offered at an earlier time because a party was not represented by counsel in all or part of a recount proceeding.... The court shall set aside or modify the determination if it finds that the board of canvassers or the chairperson or chairperson's designee has erroneously interpreted a provision of law and a correct interpretation compels a particular action. If the determination depends on any fact found by the board of canvassers or the chairperson or chairperson's designee, the court may not substitute its judgment for that of the board of canvassers or the chairperson or designee as to the weight of the evidence on any disputed finding of fact. The court shall set aside the determination if it finds that the determination depends on any finding of fact that is not supported by substantial evidence.

       The decision of this court is later referred to as Roth v. LaFarge Sch. Dist. Bd. of Canvassers, 2002 WI App 309, 259 Wis. 2d 349, 655 N.W.2d 471 (Roth II).

       A newspaper report indicates that the November 2003 LaFarge School District referendum failed. With respect to whether up to $720,000 in bonds should be issued to make improvements and upgrade existing buildings and library holdings, 138 votes were cast in favor of the referendum and 265 votes were cast against the referendum. LaFarge Referendum, Wisconsin State Journal, Nov. 6, 2003, at B3.

       Because our focus is on whether the Board correctly interpreted and applied Wis. Stat. § 7.50(2)(c), we decline to utilize DeBroux v. Bd. of Canvassers for City of Appleton, 206 Wis. 2d 321, 557 N.W.2d 423 (Ct. App. 1996), which focuses on a board's findings of fact.

       Wisconsin Stat. § 5.01(1) provides, in relevant part: Except as otherwise provided, chs. 5 to 12 shall be construed to give effect to the will of the electors, if that can be ascertained from the proceedings, notwithstanding informality or failure to fully comply with some of their provisions.

       Wisconsin Stat. § 7.50(2)(cm) provides:
      Any apparent erasure of a mark next to the name of a candidate may not be counted as a vote for that candidate if the elector makes another mark next to the name of one or more different candidates for the same office and counting of the mark would result in an excess number of votes cast for the office.