author: WEDEMEYER, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Bobby R. Williams, Defendant-Appellant.

    Court of Appeals

      No. 2004AP1985-CR.

      Submitted on briefs August 30, 2005.

      Decided September 27, 2005.

    2005 WI App 221
    (Also reported in 706 N.W.2d 355.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Richard D. Martin, assistant state public defender of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James M. Freimuth, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Wedemeyer, PJ., Fine and Kessler, JJ.

       Petition to review denied 1-20-06.

   WEDEMEYER, PJ.

¶ 1. Bobby R. Williams appeals from a non-final order granting the State's motion for reconsideration of an order granting Williams's motion to withdraw his plea. Williams claims that the trial court should not have granted the State's motion for reconsideration because it was filed five days after the deadline for filing a notice of appeal and, therefore, the State waived its right to challenge the trial court's order granting Williams's motion to withdraw his plea. Because the trial court did not err in granting the State's motion seeking reconsideration, we affirm.

BACKGROUND

¶ 2. On November 11, 2002, Williams was charged with one count of attempted first-degree intentional homicide, contrary to Wis. Stat. §§ 940.01(l)(a) and 939.32 (2001-02). The charge stemmed from an incident which occurred on October 24, 2002, wherein Williams was observed repeatedly stabbing his wife, Lolita Brown, after being told by Brown that she no longer wanted to be with him.

¶ 3. Williams entered into a plea agreement with the State and, on August 11, 2003, Williams entered a no-contest plea to one count of aggravated battery with the use of a dangerous weapon, contrary to Wis. Stat. §§ 940.19(5) and 939.63. The trial court conducted a plea colloquy with Williams before accepting the plea. On October 30, 2003, he was sentenced to fifteen years in prison, with eight years of initial confinement, followed by seven years of extended supervision.

¶ 4. On April 1, 2004, Williams filed a postconviction motion seeking to withdraw his plea. He alleged that the plea was involuntary and that the trial court failed to comply with the requirements of Wis. Stat. § 971.08 and State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). The motion requested that the trial court conduct a Bangert hearing. On April 6, 2004, without conducting a hearing or requesting a response from the State, the trial court entered an order granting Williams's motion for plea withdrawal. The order also set the case for a status conference on May 28, 2004.

¶ 5. On May 25, 2004, the State filed a motion seeking reconsideration of the trial court's April 6th order. The State argued that the motion should not have been unilaterally granted without allowing the State to respond. The trial court set up a briefing schedule. The State argued that the trial court violated established procedural law in granting Williams's motion for plea withdrawal, without allowing the State to respond. It cited the statutory procedures and Bangert, which govern motions seeking plea withdrawal.

¶ 6. Williams responded to the State's argument, conceding that the trial court erred in granting its motion without response from the State or conducting the necessary evidentiary hearing. Nonetheless, Williams argued that the State waived its right to contest the ruling by failing to appeal during the requisite forty-five-day time period.

¶ 7. On July 11th, the trial court ruled:

[Williams's] arguments are of no consequence because the trial court has inherent authority to vacate its own order pursuant to section 807.03 .... The court allowed the defendant to summarily withdraw his plea because the record failed to show compliance with section 971.08, Stats., and State v. Bangert, 131 Wis. 2d 246 (1986) during the plea colloquy. Bangert provides that the burden shifts to the State to show by clear and convincing evidence that the plea was voluntarily, knowingly, and intelligently entered despite the inadequacy of the record. The court's April 6, 2004 order deprived the State of its opportunity to demonstrate that the defendant's guilty plea was nevertheless valid, and therefore, the court vacates its April 6, 2004 order. The clerk shall set the defendant's motion to withdraw his no contest plea for an evidentiary hearing.

(Bolding by trial court.)

¶ 8. Williams then filed a petition with this court seeking to appeal from the trial court's non-final order. As noted, we granted the petition.

DISCUSSION

¶ 9. The issue in this case is whether the trial court erred in entertaining and granting the State's motion seeking reconsideration. Williams argues that the State waived its right to challenge the trial court's order granting plea withdrawal because it missed applicable appeal deadlines. The State concedes that no appeal with filed within the forty-five-day time deadline, but contends that it was not obligated to file a notice of appeal because the trial court's April 6th order was not a final order. We agree with the State.

¶ 10. Williams concedes that the trial court erred when it summarily granted his motion seeking plea withdrawal. It is undisputed that the trial court's order violated the two-step procedure required in Bangert. Williams contends, nevertheless, that the trial court lacked authority to correct its error because the State waited until five days after the forty-five-day appeal time period expired before filing a motion to reconsider. Williams suggests that the State simply "blew" the appeal deadline and its motion to reconsider was an attempt to circumvent that deadline. Williams requests that we reverse the trial court's July 11th order granting the motion for reconsideration and scheduling a Bangert hearing. He asks that we reinstate the trial court's April 6th order granting plea withdrawal. We reject Williams's requests.

¶ 11. The resolution of this appeal rests with whether the April 6th order was a final order. If the plea withdrawal order was final, the State had an obligation to file a notice of appeal within the forty-five-day time period. Failure to do so would result in waiver of its right to challenge the trial court's ruling. If the plea withdrawal order was not a final order, the State was not obligated to file an appeal and its motion to reconsider was timely. See Teff v. Unity Health Plans Ins. Corp., 2003 WI App 115, ¶ 57, 265 Wis. 2d 703, 666 N.W.2d 38 ("A court has the inherent authority to reconsider a nonfinal ruling any time prior to the entry of the final order or judgment.") (emphasis added).

¶ 12. Whether an order is final or non-final is a question of law subject to independent review. Contardi v. American Family Mut. Ins. Co., 2004 WI App 104, ¶ 4, 273 Wis. 2d 509, 680 N.W.2d 828 (per curiam). Williams, citing State v. Bagnall, 61 Wis. 2d 297, 302, 212 N.W.2d 122 (1973), contends that'the April 6th order was final because it terminated the particular proceeding regarding the plea hearing. We do not dispute that the supreme court held in Bagnall that an order granting a motion seeking plea withdraw constituted a final order. Id. If Bagnall controlled the instant case, we would agree with Williams that the State was obligated to appeal from the April 6th order.

¶ 13. However, Bagnall was modified by State v. Rabe, 96 Wis. 2d 48, 55-60, 291 N.W.2d 809 (1980). In Rabe, our supreme court pointed out that Bagnall was decided under the old statute, Wis. Stat. § 817.33 (1975). Under that statute, an order was final if it affected a substantial right made in a special proceeding or if the order in effect determined the action and prevented a judgment from which an appeal could be taken. Rabe, 96 Wis. 2d at 56.

¶ 14. Rabe instructed that the 1975 rules "were replaced by sec. 808.03(1).... The new provision replaced the long and confusing list of appealable orders under ch. 817 with a simple dichotomy: Orders which '[dispose] of the entire matter in litigation' are appeal-able by right; all other orders are appealable only by permission." Id. (footnote omitted). Like Rabe, the instant case is governed by the new statute, not the 1975-Bagnall statute.

¶ 15. Wisconsin Stat. § 808.03 sets forth appeals as of right and appeals by permission. Subsection (1) explains that an order is final when it "disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding, and that is" entered or recorded. Based on this definition, we conclude that the April 6th order was not a final order. An order granting a plea withdrawal is not final because it plainly anticipates further proceedings in the criminal caseeither a trial or a guilty or no-contest plea. The April 6th order did not dispose of the entire matter in litigation. The order itself noticed a status conference for May 28th. Clearly, such order cannot be construed as a final order.

¶ 16. We are further not persuaded by Williams's argument that the order should be considered final because it ended the plea hearing proceedings. As the State pointed out, the granting of a plea withdrawal contemplates either a trial on the matter or renewed plea proceedings. Based on the language of Wis. Stat. § 808.03(1), we conclude that the trial court's April 6th order was not final. Thus, the trial court retains jurisdiction unless the State files a petition seeking to appeal from a non-final order, and this court grants such petition.

¶ 17. Accordingly, the State was not obligated to file an appeal within the forty-five-day time period and its failure to do so cannot constitute waiver. Because the trial court has the inherent authority to reconsider any of its non-final rulings prior to entry of the final order or judgment in the case, see Teff, 265 Wis. 2d 703, ¶ 57, the trial court did not err in entertaining the State's motion for reconsideration. The trial court acted correctly in granting the motion and scheduling the case for a Bangert hearing on Williams's motion for plea withdrawal. Thus, we remand this case so that an evidentiary hearing on the plea withdrawal motion can occur.

By the Court. — Order affirmed and cause remanded for further proceedings.

       We granted the petition to appeal from the non-final order on August 23, 2004.

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

       In State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), the supreme court set forth the procedures required to be taken if the trial court failed to follow the plea procedures set forth in Wis. Stat. § 971.08. Bangert, 131 Wis. 2d at 274.
      First, the defendant may move to withdraw his plea. Id. The initial burden is on the defendant to establish his/her burden of showing that the plea was accepted without conformance to the statutes. Second, if the defendant makes this prima facie showing, the burden shifts to the state to show by clear and convincing evidence that despite the nonconformance, the plea was knowingly, intelligently, and voluntarily made. Id. at 274-75.

        Thus, a trial court errs as a matter of law if it grants a plea withdrawal motion without allowing the state the opportunity to prove the plea was knowingly, intelligently, and voluntarily entered.


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Daniel D. King, Defendant-Appellant.

    Court of Appeals

      No. 2004AP2694-CR.

      Submitted on briefs August 30, 2005.

      Decided September 27, 2005.

    2005 WI App 224
    (Also reported in 706 N.W.2d 181.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Scott D. Obernberger of Obernberger & Associates, LLC, of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and William C. Wolford, assistant attorney general.
    Before Wedemeyer, EJ., Fine and Kessler, JJ.

       Petition to review denied 12-14-05.

   FINE, J.

¶ 1. Daniel D. King appeals from a judgment entered on jury verdicts convicting him, as a habitual criminal, as party to a crime, see Wis. Stat. §§ 939.62, 939.05, of substantial battery of Chandra T., see Wis. Stat. § 940.19(2), and armed robbery of Chandra T. with threat of force, see Wis. Stat. § 943.32(2). He also appeals from that aspect of the trial court's post-conviction order that upheld these verdicts, claiming that the trial court erroneously received into evidence hearsay assertions of another of his victims, and that this poisoned the jury's ability to return a fair verdict on the two charges involving Chandra T. We affirm.

I.

¶ 2. King was tried on eleven charges as party to a crime: one count of robbery, three counts of first-degree sexual assault, and one count of substantial battery, involving Shelia J.; and one count of kidnapping, three counts of first-degree sexual assault, one count of armed robbery with threat of force, and one count of substantial battery, involving Chandra T. The jury found King guilty of substantial battery of Shelia J., and, as noted, guilty of substantial battery and armed robbery of Chandra T. The jury acquitted King on all the other charges. The trial court granted part of King's postconviction motion and vacated the substantial-battery conviction involving Shelia J., ruling that King's confrontation rights were violated in connection with that charge. The State does not appeal that ruling.

¶ 3. The charges against King arose out of two incidents, one on November 29, 2002, involving Shelia J., and one on December 7, 2002, involving Chandra T. The State contended that King and his brother raped, robbed, and beat Shelia J., and kidnapped, raped, robbed, and beat Chandra T. Chandra T. testified at the trial. Although Shelia J. testified at the preliminary examination, she did not testify at the trial, and the trial court received into evidence both her preliminary-examination testimony and what she had told others about the assaults. An assessment of whether the hearsay evidence received in connection with the charges involving Shelia J. prevented the jury from reaching a fair verdict on the charges involving Chandra T. requires that we evaluate that evidence and King's contention, with which the trial court agreed in part, that admission of the hearsay evidence denied Kang his right to confront his accuser.

II.

¶ 4. Every defendant in a criminal case is entitled to confront his or her accusers: "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." U.S. Const. amend. VI. This clause applies to the states as well as to the federal government. Pointer v. Texas, 380 U.S. 400, 406 (1965). The Wisconsin Constitution also guarantees the right to confrontation: "In all criminal prosecutions the accused shall enjoy the right... to meet the witnesses face to face." Wis. Const, art. 1, § 7. The two clauses are, "generally," coterminous. State v. Hale, 2005 WI 7, ¶ 43, 277 Wis. 2d 593, 607, 691 N.W.2d 637, 644. While the Sixth Amendment has "a preference for face-to-face confrontation at trial," Ohio v. Roberts, 448 U.S. 56, 63 (1980), face-to-face confrontation is not "an indispensable element of the Sixth Amendment's guarantee," Maryland v. Craig, 497 U.S. 836, 849 (1990) (child sexual-abuse victim may testify by one-way closed-circuit television out of defendant's physical presence).

¶ 5. Although "not all hearsay implicates the Sixth Amendment's core concerns," Crawford v. Washington, 541 U.S. 36, 51 (2004), "testimonial" hearsay is not admissible in a criminal trial against a defendant unless: (1) "the defendant had had a prior opportunity for cross-examination," and (2) the hearsay declarant is "unavailable to testify," id., 541 U.S. at 53-54. While the precise parameters of what is "testimonial" hearsay are still in flux, id., 541 U.S. at 68 ("We leave for another day any effort to spell out a comprehensive definition of 'testimonial."), "ex parte testimony at a preliminary hearing" and "formal statement^] to government officers" are within the core, id., 541 U.S. at 51-52. Wisconsin has, "at a minimum," adopted what State v. Manuel, 2005 WI 75, ¶ 39, 281 Wis. 2d 554, 577, 697 N.W.2d 811, 822, calls "Crawford's formulations."

¶ 6. Unavailability for confrontation purposes requires both that the hearsay declarant not appear at the trial and, critically, that the State make a "good-faith effort" to produce that declarant at trial. Barber v. Page, 390 U.S. 719, 724-725 (1968); Roberts, 448 U.S. at 74 ("[I]f there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. 'The lengths to which the prosecution must go to produce a witness ... is a question of reasonableness.'") (italics in Roberts; quoted source omitted); State v. Gollon, 115 Wis.2d 592, 600, 340 N.W.2d 912, 916 (Ct. App. 1983). Further, Wisconsin has retained for non-testimonial hearsay the now-limited approach to the hearsay/confrontation interplay set out in Roberts, 448 U.S. at 65-66 (hearsay may only be admitted against a defendant in a criminal trial if the declarant is unavailable and the hearsay assertion has sufficient" 'indicia of reliability'") (quoted source omitted). Manuel, 2005 WI 75, ¶¶ 60-61, 281 Wis. 2d at 586-587, 697 N.W.2d at 826-827; see Crawford, 541 U.S. at 68 (states may use the Roberts approach for non-testimonial hearsay). Thus, and significantly here, the State had to show that Sheba J. was truly unavailable before her non-testimonial hearsay could constitutionally be received into evidence against King. See Roberts, 448 U.S. at 65-66, 74-75 (burden on State to show unavailabihty).

¶ 7. We analyze in this light each of Shelia J.'s pre-trial statements received at the trial, and assess whether admission of statements that should have been excluded violated King's right to a fair trial in connection with Chandra T.

III.

A. Shelia J.'s preliminary-examination testimony.

1.

¶ 8. Shelia J. did not testify at the trial because, according to the State, she could not be located. She did, however, testify at the preliminary examination held to determine whether King or his then-co-defendant (his brother) should stand trial. She told the court commissioner presiding at the preliminary examination that on November 29, 2002, she was walking in an alley between 6th and Wright Streets in Milwaukee when King and his brother approached her in a car that King was driving. According to her preliminary-examination testimony, the King brothers raped her, beat her, and took her money before she could escape. King's lawyer cross-examined her, and the court commissioner sustained objections to only seven of his questions. Twice King's trial lawyer asked if Shelia J. tried to run before she was assaulted, and once asked if Shelia J. tried to defend herself; the court commissioner sustained "relevance" objections; and neither King's trial lawyer nor King on this appeal makes an offer of proof as to why these issues might have been relevant at the trial. King's trial lawyer also asked whether Shelia J. had been either drinking or using drugs that night; again, the court commissioner sustained "relevance" objections and neither King's trial lawyer nor King on this appeal makes an offer of proof as to why that issue might have been relevant at the trial.

¶ 9. King's lawyer also asked which hand Shelia J. used to get the money she said King took from her. This time, too, the court commissioner sustained a "relevance" objection, and neither King's trial lawyer nor King on this appeal makes an offer of proof as to why that issue might have been relevant at the trial. Finally, the court commissioner sustained a rape-shield-law objection as to whether Shelia J. was "turning tricks" that night. See Wis. Stat. § 972.11(2) (rape-shield law). Neither King's trial lawyer nor King on this appeal makes an offer of proof as to why that issue might have been both relevant and admissible at the trial, other than to contend in passing that King's defense was he had "hired" Shelia J. as a prostitute and that she was beaten by her "pimp." See State v. Pulizzano, 155 Wis. 2d 633, 656-657, 456 N.W.2d 325, 335 (1990) (§ 972.11(2) may not constitutionally exclude evidence if the defendant makes "an offer of proof showing: (1) that the prior acts clearly occurred; (2) that the acts closely resembled those of the present case; (3) that the prior act is clearly relevant to a material issue; (4) that the evidence is necessary to the defendant's case; and (5) that the probative value of the evidence outweighs its prejudicial effect" unless the trial court determines that "the State's interests in excluding the evidence are so compelling that they nonetheless overcome the defendant's right to present it.").

¶ 10. Shelia J.'s preliminary-examination testimony, both her direct-examination by the State and her cross-examination by King's trial lawyer, was read to the jury. Additionally, even though King's brother was not being tried with King, the cross-examination of Shelia J. by the brother's lawyer was also read to the jury.

2.

¶ 11. As we have seen, testimonial hearsay evidence may only he received against a defendant in a criminal case if: (1) the witness is unavailable, and (2) "the defendant had had a prior opportunity for cross-examination." Crawford, 541 U.S. at 53-54. The opportunity for cross-examination must, of course, be meaningful. See State v. Stuart, 2005 WI 47, ¶¶ 30-37, 279 Wis. 2d 659, 673-675, 695 N.W.2d 259, 265-267. The trial court held that Shelia J. was "unavailable." Whether a hearsay declarant is unavailable "for confrontation purposes, is a constitutional fact." Gollon, 115 Wis. 2d at 601, 340 N.W.2d at 916. Thus, our review is de novo. See id., 115 Wis. 2d at 600, 340 N.W.2d at 916; State v. McBride, 187 Wis. 2d 409, 414, 523 N.W.2d 106, 109 (Ct. App. 1994). As explained below, we agree with King that Shelia J. was not "unavailable" for confrontation purposes. Accordingly, we do not address whether King's opportunity to cross-examine Shelia J. at the preliminary examination was meaningful. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground").

¶ 12. In seeking a ruling that Shelia J. was unavailable to testify at the trial, the State told the trial court that it had sent a process-server "to her residence seven times" but that the address was wrong, and that the process-server then twice went to what the State said was the correct address, where "the resident there who is a family member who indicated that she does come by now and again, hut that she doesn't live there, and a card was left for her." The State also represented that "the victim advocate in this case" went to "the residence two times at the end of last week, spoke with the victim's grandmother at the residence, left a letter for her." The State said that "[t]he grandmother indicated that she has seen Shelia; she talked to her about her coming to the jury trial," but that "[s]he does not want to come, that she's afraid and apprehensive and that she believes she didn't have to come if she didn't get a subpoena. She has not been served with a subpoena."

¶ 13. It appears from the Record, however, that a subpoena could have been served on Shelia J. because, as the State told the trial court, a Milwaukee detective "went to her residence over the weekend on Saturday. He did speak with Shelia J[]. She had the letter from the victim-advocate. She also indicated she was fearful and apprehensive about coming to the trial, but she indicated that she would call our office this week. She has not called."

¶ 14. The State also represented to the trial court that additional efforts to get Shelia J. to testify at the trial were made the previous day.

Again, yesterday, we made contact with both her mother and her grandmother. Her mother indicated that she would continue to try to look for her, that if she contacted her she would ask her again to please call our office, and she hasn't.
I believe [another detective] went out yesterday late afternoon again to the residence to see if Miss J[] was there and could be persuaded to come to the trial, and I don't believe she met with success.

¶ 15. The trial court concluded that the State's efforts to secure Shelia J.'s in-court testimony complied with Wis. Stat. Rule 908.04(l)(e) (" 'Unavailability as a witness' includes situations in which the declarant:... Is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance by process or other reasonable means."). The trial court opined: "Process was attempted. A number of other means were attempted to secure Miss J[]'s presence. She has not been able to be found. Appears to have absented herself from such a process or appear here in court. That would make her unavailable." The trial court did not make a separate confrontation-analysis of whether the State's efforts complied with King's confrontation right to see, hear, and question Shelia J. at his trial. Also, rather than hold an evidentiary hearing at which the process-server, the victim-advocate, and the detectives could testify about what they did to secure Shelia J.'s attendance at the trial, see Wis. Stat. Rule 901.04(1) ("Preliminary questions concerning . . . the admissibility of evidence shall be determined by the judge."), the trial court relied on the State's representations. King's trial lawyer did not object, and King does not on this appeal contend that his lawyer was ineffective as a result. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (defendant in criminal case deprived of constitutional right to counsel if both the lawyer was deficient in his or her representation and the defendant was thereby prejudiced). Accordingly, we use the State's representations in analyzing whether Shelia J. was unavailable for confrontation purposes. We conclude that she was not.

¶ 16. First, the State conceded that its process-server had Shelia J.'s wrong address for seven of the attempts at service. Second, a detective found Shelia J. and spoke with her after the victim-advocate learned that Shelia J., as phrased by the State in its representation to the trial court, "believes she didn't have to come if she didn't get a subpoena." Yet, the detective did not then serve Shelia J., but, apparently, merely asked Shelia J. to call the district attorney's office. Attempting to, in the State's word, "persuade" a reluctant witness, either directly or through relatives, to come to court is not sufficient when a subpoena could have and should have been served. The district attorney may sign and issue a subpoena "to require the attendance of witnesses." Wis. Stat. § 885.01(2). "Any subpoena may be served by any person by exhibiting and reading it to the witness, or by giving the witness a copy thereof, or by leaving such copy at the witness's abode." Wis. Stat. § 885.03. Further, "[inexcusable failure to attend any court of record is a contempt of the court," Wis. Stat. § 885.11(3), and M[e]very court. .. may issue an attachment to bring such witness before it for the contempt, and also to testify," § 885.11(2).

¶ 17. To quote Gollon's reflection in a related context, whether a hearsay declarant is constitutionally unavailable "is too important" to be satisfied by going-through-the-motions efforts; rather, the efforts must be adapted to the circumstances and must be unstinting. See id., 115 Wis. 2d at 601, 340 N.W.2d at 916. Indeed, even under the lower non-constitutional standard of Wis. Stat. Rule 908.04(1)(e), the party seeking to introduce an out-of-court declarant's hearsay assertions "must 'specify the facts showing diligence' and not rely on 'a mere assertion of perfunctory showing of some diligence.'" State v. Williams, 2002 WI 58, ¶ 63, 253 Wis. 2d 99, 127, 644 N.W.2d 919, 933 (quoted source omitted). Not serving Shelia J. with a subpoena when that was possible and when that step was a foreseeable potential condition to her presence at trial was not reasonable, and does not reflect the constitutionally required good-faith effort to secure King's right to confront his accuser. Accordingly, the State has not demonstrated that Shelia J. was constitutionally unavailable, and the trial court erred in permitting the jury to hear her preliminary-examination testimony. See Crawford, 541 U.S. at 54.

B. Statements by Shelia J. to Detective Geri Lynn Gahagan.

¶ 18. Detective Geri Lynn Gahagan interviewed Shelia J. at the hospital to which Shelia J. had been taken some one-and-one-half hours earlier, and where she was being treated for her serious injuries. The trial court received Gahagan's recitation of what Shelia J. told her during that interview under the excited-utterance exception to the rule against hearsay, Wis. Stat. Rule 908.03(2) ("The following are not excluded by the hearsay rule, even though the declarant is available as a witness: ... A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."). Shelia J. told Gahagan essentially what Shelia J. later testified to at the preliminary examination. In its post-trial order, the trial court recognized that under Crawford, which was issued after King's trial, Shelia J.'s statements to Gahagan were " 'testimonial' " because they were given in response to "structured police questioning." We agree. See Crawford, 541 U.S. at 52, 53, 68 ("Statements taken by police officers in the course of their interrogations are also testimonial"; "interrogations by law enforcement officers" are testimonial); Manuel, 2005 WI 75, ¶ 38, 281 Wis. 2d at 576, 697 N.W.2d at 821. As a consequence of its analysis, and, as we see later, its view that the jury should not have been told that Shelia J. identified King at a lineup, the trial court overturned the jury's conviction of King as it related to Shelia J. As noted, the State has accepted the trial court's determination.

C. Statements by Shelia J. to Police Officer John Graber.

¶ 19. Shortly after Shelia J.'s escape from the King brothers, Officer John Graber was sent to the house where she had sought refuge. He found her injured, bloody, and crying, and she told him what had happened. The trial court permitted Graber to relate to the jury what Shelia J. had told him. In its posteonviction decision and order, the trial court opined that this was not error under Crawford because, in its view, what Shelia J. told Graber was not testimonial: "The statements that the victim [Shelia J.] made at that time were for purposes of relating to the officers 'what happened' and to give them a description of the suspects" so they could seek their apprehension. We need not analyze whether what Shelia J. told to Graber was testimonial because, as we have seen, absent unusual circumstances, unavailability is a confrontation-prerequisite under the pre-Crawford Roberts analysis. See Manuel, 2005 WI 75, ¶ 60, 281 Wis. 2d at 586, 697 N.W.2d at 826 (adopting Roberts for non-testimonial hearsay). We have already determined that Shelia J. was not unavailable. Accordingly, letting the jury hear what she told Graber violated King's right to confrontation.

D. Statements by Shelia J. to Nurse Debra Donovan.

¶ 20. The trial court also permitted Debra Donovan, a forensic nurse at the Aurora Sinai Medical Center Sexual Assault Treatment Center, to tell the jury what Shelia J. told her during Donovan's examination of her. Shelia J. had arrived at the Center at approximately 12:30 a.m. on November 30, 2002, some two hours after the King brothers assaulted her. The testimony essentially tracked Shelia J.'s preliminary-examination testimony. In its postconviction decision and order, the trial court determined that what Shelia J. told Donovan that morning was not testimonial because, as phrased by the trial court, "Ms. Donovan is not part of law enforcement, and the primary purpose of her questions was to aid in medical diagnosis and treatment." As with Graber's testimony, we need not evaluate whether what Shelia J. told Donovan was testimonial because, as we have already held, Shelia J. was not unavailable. Accordingly, letting the jury hear what Shelia J. told Donovan violated King's right to confrontation.

E. Shelia J.'s identification of King at a lineup.

¶ 21. The trial court also permitted Police Detective Vickie Hall to testify at King's trial that Shelia J. had identified King at a lineup as one of her attackers. In its postconviction decision and order, the trial court held that this was error under Crawford because it was an "[inquisitorial interaction" "between a law enforcement official" and a hearsay declarant. The State does not on this appeal challenge that ruling.

IV

¶ 22. As we have seen, the trial court vacated King's one-count conviction involving Shelia J., but King contends that letting the jury hear the testimony we have discussed poisoned the jury's ability to fairly assess the charges against him involving Chandra T. The trial court held in its postconviction decision and order that errors involving the State's case against King involving Shelia J. were harmless beyond a reasonable doubt in connection with Chandra T. See State v. Hale, 2005 WI 7, ¶ 60, 277 Wis. 2d 593, 612-613, 691 N.W.2d 637, 647. Whether an error is harmless is a legal issue subject to our de novo review. See State v. Carnemolla, 229 Wis. 2d 648, 653, 600 N.W.2d 236, 239 (Ct. App. 1999). Hale sets the significant considerations:

this court has articulated several factors to aid in the analysis, including the frequency of the error, the importance of the erroneously admitted evidence, the presence or absence of evidence corroborating or contradicting the erroneously admitted evidence, whether the erroneously admitted evidence duplicates untainted evidence, the nature of the defense, the nature of the State's case, and the overall strength of the State's case.

Hale, 2005 WI 7, ¶ 61, 277 Wis. 2d at 613, 691 N.W.2d at 647. We analyze King's convictions involving Chandra T. in this light.

¶ 23. First, as the trial court recognized, the two series of attacks were not only on different women, but also on different days. Second, unlike the situation with Shelia J., Chandra T. testified at the trial and was subject to full cross-examination. Third, there was no overlap between the evidence improperly received against King involving Shelia J. and the State's case against Chandra T. Fourth, although the prosecutor tied the two crimes together in her closing argument, the trial court specifically told the jury that it had to consider separately each of the charges against King. As the trial court recognized, the jury was apparently able to analyze separately the evidence involving each of the charges against King because "it acquitted the defendant on 8 of the 11 separate charges he faced." Fifth, and, perhaps, most significant, there was direct physical evidence linking King and Chandra T.: her blood was found in his car, King's semen was found on Chandra T.'s buttocks and underwear, and King admitted that both he and his brother had sex with her that night. Errors in receiving Shelia J.'s hearsay assertions did not, beyond a reasonable doubt, infect the jury's ability to give to King a fair trial in connection with Chandra T. Accordingly, we affirm.

By the Court. — Judgment and order affirmed.

        State v. Manuel, 2005 WI 75, ¶ 39, 281 Wis. 2d 554, 577, 697 N.W.2d 811, 822, asserts: "For now, at a minimum, we adopt all three of Crawford's formulations." Two of the "formulations" Manuel sets out as Crawford's, however, were phrased by briefs submitted to the United States Supreme Court, not by Crawford, and were given by Crawford as examples of what it characterized as "[v]arious formulations" of the "core class of 'testimonial' statements." Crawford v. Washington, 541 U.S. 36, 51 (2004). Manuel quotes the following as one of the "formulations" Crawford adopts: " '[E]x parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.' [Crawford, 541 U.S.] at 51." Manuel, 2005 WI 75, ¶ 37, 281 Wis.2d at 575-576, 697 N.W.2d at 821 (first brackets by Manuel). This comes from a brief submitted by Michael Crawford. Crawford, 541 U.S. at 51; Brief for the Petitioner at 23, Crawford v. Washington, 541 U.S. 36 (2004) (No. 02-9410), 2003 WL 21939940 ("In concrete terms, this rule prohibits the prosecution from introducing ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to he used prosecutorially.").

        Manuel quotes the following as another of the three formulations Crawford adopts: " '[Statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would he available for use at a later trial.' [Crawford, 541 U.S.] at 52." Manuel, 2005 WI 75, ¶ 37, 281 Wis. 2d at 576, 697 N.W.2d at 821 (first brackets by Manuel). This comes from a brief submitted by the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and the ACLU of Washington. Crawford, 541 U.S. at 52; Brief for the National Association of Criminal Defense Lawyers et al. as Amici Curiae Supporting Petitioner at 3, Crawford, 541 U.S. 36 (No. 02-9410), 2003 WL 21754961 ("In place of Roberts this Court should adopt what has been called the 'testimonial' approach. The testimonial approach would prohibit the admission of out-of-court statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial (unless the defendant has the opportunity to confront the witness).").
      Without further clarification from the supreme court, we assume that Manuel intended to adopt these party-and amici-phrased formulations, and we apply them here.

       Although King's trial lawyer did not object specifically to Officer Graber's recitation of what Sheba J. told the officer, the trial court in its postconviction decision and order determined that the lawyer had sufficiently preserved the point by the lawyer's objection that, as phrased by the trial court, "the admission of similar evidence would violate the Confrontation Clause, and the continuing nature of that objection." The State does not on this appeal dispute that ruling.

       Although King's trial lawyer did not object specifically to Detective Hall's testimony about Shelia J.'s identification of King at the lineup, the trial court in its postconviction decision and order determined that the lawyer had sufficiently preserved the point by the lawyer's objection that, as phrased by the trial court, "the admission of similar evidence would violate the Confrontation Clause, and the continuing nature of that objection." The State does not on this appeal dispute that ruling.


author: HOOVER, EJ.

text:
    Estate of Leon P. Szleszinski, by its Special Administrator and Darlene Szleszinski, Petitioners-Appellants, v. Labor & Industry Review Commission and Midwest Coast Transport, Respondents-Respondents, Transhield Trucking and Transhield Leasing Company, Respondents.
    Court of Appeals

      No. 2004AP3033.

      Submitted on briefs May 23, 2005.

      Decided September 27, 2005.

    2005 WI App 229
    (Also reported in 706 N.W.2d 345.)

      On behalf of the petitioners-appellants, the cause was submitted on the briefs of Matthew A. Biegert and Anne E. Schmiege of Doar, Drill & Skow, S.C. of New Richmond.
    On behalf of the respondent-respondent, Midwest Coast Transport, the cause was submitted on the brief of Janice A. Rhodes of Kravit, Hovel, Krawczyk & Leverson, S.C. of Milwaukee.
    On behalf of the respondent-respondent, Labor and Industry Review Commission, the cause was submitted on the brief of David C. Rice, assistant attorney general, and Peggy A. Lautenschlager, attorney general.

      On behalf of the respondent, Transhield Leasing Company, the cause was submitted on the brief of James B. Sherman of Wessels & Pautsch, PC. of Minneapolis, MN.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review filed.

   HOOVER, EJ.

¶ 1. The Estate of Leon Szleszin-ski appeals a judgment of the circuit court affirming the Labor and Industry Review Commission. LIRC reversed a determination by an administrative law judge that Midwest Coast Transport (Midwest) had wrongfully discriminated against Szleszinski when it terminated his employment due to his disability. Szlesz-inski contends there is no factual or legal basis for LIRC's determination that Midwest had a valid safety defense to his allegations of discrimination. We agree with Szleszinski and reverse the judgment in part, thereby reinstating the ALJ's decision, and we remand for a calculation of Szleszinski's attorney fees and costs.

Background

¶ 2. Szleszinski was hired as a commercial truck driver by Transhield Leasing Company and was to start on June 21, 1995. Transhield leases its trucks and drivers to Midwest exclusively. Transhield pays the drivers, but Midwest can approve or reject drivers. Midwest also oversees driver safety, including drivers' federally required Department of Transportation certification. Szleszinski has held his commercial driver's license since the early 1990s and has never had it suspended or revoked. He always passed his physicals, and his federal certification was valid through at least December 1998.

¶ 3. When Szleszinski was seventeen, he was diagnosed with Wilson's disease, a disorder that causes copper retention. Wilson's can manifest as neurological problems, liver disease, or other symptoms. Szleszinski's diagnosing physician, however, called it a "very mild" case and Szleszinski managed his disease with medication.

¶ 4. Prior to starting with Transhield and Midwest, Szleszinski had a physical examination performed by Dr. L. D. Carlson, who cleared Szleszinski to drive under the applicable federal regulations. Midwest knew Szleszinski had Wilson's when it initially accepted him as a driver. Accordingly, it consulted with a physician's assistant at Central Plains Clinic, an affiliate of Occupational Health Associates of South Dakota (OHA). Midwest typically relied on OHA for medical certification of its drivers. The physician's assistant concluded Szleszinski met the Department of Transportation standards, and Szleszinski began driving for Midwest.

¶ 5. In March 1996, Midwest received two complaints of erratic driving against Szleszinski. Szleszinski did not remember either incident. While the general practice for a driving report was to confer with the employee about safe driving habits, Midwest requested Szleszinski be medically re-evaluated. Carlson examined Szleszinski again and recommended he see a neurologist. Midwest made arrangements through OHA for Szlesz-inski to see Dr. Ah Choucair, a neuro-oncologist. Choucair noted that Szleszinski had some neurological impairment and suggested further testing, including a road test, but ultimately concluded: "His deficit I do not believe is such that will prevent him from operating a motor vehicle."

¶ 6. Midwest then sent Szleszinski's medical records, including Choucair's report, to Dr. Dana Wind-horst at OHA. Windhorst reported:

I have reviewed Mr. Szleszinski's records, specifically the note from Ali Choucair, M.D....
The neurological examination did indicate some mild neurological deficits, specifically in the area of coordination ....
In addition, there is the history, apparently twice, of this driver being observed to swerve on the highway suggesting some problem with functional coordination during his driving.
Wilson's disease is a progressive neurological disease, and this is of grave concern, given the responsibilities of driving large commercial vehicles on the highways. The Department of Transportation Conference on Neurological Disorders and Commercial drivers, dated July 1988, recommends, without exception, disqualification for individuals with confirmed diagnosis of Wilson's disease. Putting all this together, I cannot make a recommendation for this individual to be medically certified for DOT licensure. It is also my opinion that, regardless of the results of psychometric testing and MRI, that I would not change this recommendation. (Emphasis added.)

¶ 7. Based on Windhorst's report, Midwest informed Szleszinski on March 26,1996, that it no longer considered him qualified to drive for Midwest, effectively ending his employment. Following his disqualification, Szleszinski privately saw a neurologist and a radiologist. The neurologist reported no impact on his ability to drive, finding he fell within the Department of Transportation safety guidelines, and the radiologist reported a normal MRI. There is also no indication that Szleszinski ever lost his federal certification and he continued to work as a driver until his death in 1999.

¶ 8. In 1996, and as amended in 1998, Szleszinski commenced an action against Midwest and Transhield under the Wisconsin Fair Employment Act (WFEA), Wis. Stat. § 111.31-111.395, alleging discrimination because of a disability. See Wis. Stat. § 111.34. Midwest and Transhield argued he failed to exhaust administrative remedies under federal regulations and moved for summary judgment. The ALJ denied the motion on procedural grounds and ultimately ruled in Szleszinski's favor. The ALJ awarded back pay with interest, costs, and attorney fees. The ALJ also held that Midwest, not Transhield, was the employer for WFEA purposes.

¶ 9. Midwest appealed to LIRC, arguing that while Szleszinski had made a prima facie case for unlawful discrimination, it had a valid safety defense under the WFEA. LIRC agreed that Szleszinski's disability was reasonably related to his ability to work safely, and reversed on what it considered to be "a different interpretation of the relevant law." However, LIRC agreed with the ALJ that Midwest was Szleszinski's employer under the WFEA.

¶ 10. Szleszinski petitioned the circuit court for review. The court held that LIRC's determination was supported by credible evidence. Szleszinski appeals.

Discussion

¶ 11. The scope of our review of an administrative agency decision under Wis. STAT. § 227.57 is the same as the trial court's, and we review the agency's decision, not the trial court's. Target Stores v. LIRC, 217 Wis. 2d 1, 11, 576 N.W.2d 545 (Ct. App. 1998).

¶ 12. "The complainant in a handicap discrimination case must show that: (1) he or she is handicapped within the meaning of the WFEA, and that (2) the employer took one of the enumerated actions on the basis of handicap." Id. at 9 (footnotes omitted). If the complainant makes the requisite showing, the burden shifts to the employer to provide a valid defense under Wis. Stat. § 111.34. Target Stores, 217 Wis. 2d at 9.

¶ 13. In this case, the underlying facts are undisputed. It is also undisputed that Szleszinski made the required initial showing. Szleszinski argues LIRC erred when it concluded Midwest had a viable defense under WFEA. This involves application of a statute to a set of facts, ordinarily a question of law that we review de novo. See Brown v. LIRC, 2003 WI 142, ¶ 11, 267 Wis. 2d 31, 671 N.W.2d 279. However, when we review an administrative agency decision, simply labeling an issue a question of law does not mean we may automatically disregard the agency's determination. See id., ¶ 12.

¶ 14. Whether we independently apply the law to the facts or defer in some way to the agency depends on the particular action on review. Id. We have a three-tier approach to an agency's interpretations of law: we give no deference, due weight deference, or great weight deference to an agency depending on the comparative institutional capabilities and qualifications of the court and the agency. Id., ¶ 13.

¶ 15. We have previously held LIRC should be entitled to great weight deference in the application of various aspects the WFEA. See Hutchinson Tech., Inc. v. LIRC, 2004 WI 90, ¶ 10 n.6, 273 Wis. 2d 394, 682 N.W.2d 343 (whether an individual is disabled); Target Stores, 217 Wis. 2d at 13 (whether reasonable accommodations were made). The same factors used to support great weight deference in those cases would equally apply to LIRC's determination whether an employer has a valid defense under Wis. Stat. § 111.34. However, even under the great weight standard, the agency's determinations are not controlling. Target Stores, 217 Wis. 2d at 16-17.

¶ 16. Before we turn to LIRC's decision regarding Midwest's defense, however, there are two threshold issues. The first is whether Szleszinski had to exhaust his remedies under federal rules. For this determination, we owe LIRC no deference, as LIRC is not charged with administering these provisions of federal law. It therefore is in no better position than we are to make this determination. The second issue is whether Midwest is properly considered an employer under the WFEA, and LIRC's determination on that matter is entitled to great weight deference. We address these issues first because if we conclude Szleszinski was required to exhaust his remedies under the federal rules or the WFEA does not apply because Midwest is not an employer, our analysis would end.

Exhaustion of Remedies

¶ 17. LIRC ruled that Szleszinski "was not required to helplessly accept Dr. Windhorst's refusal to medically certify him. Federal regulations provide an appeal mechanism through which disputed the DOT medical certifications can be reviewed." That "mechanism" is found in 49 C.F.R. § 391.47. We are unconvinced that this section applies in this case.

¶ 18. In the first place, the WFEA does not require individuals to exhaust other administrative remedies. The legislature has, when it deemed exhaustion appropriate, expressly required utilizations of administrative remedies prior to initiating circuit court action. See, e.g., Wis. Stat. §§ 49.498(19)(a), 50.03(ll)(a), and 801.02(7) (b).

¶ 19. More substantively, however, 49 C.F.R. § 391.47(b)(2) states: "The applicant must submit proof that there is a disagreement between the physician for the driver and the physician for the motor carrier concerning the driver's qualification." Here, the disagreement is between two reports for the carrier. When Carlson recommended Szleszinski see a neurologist, Midwest elected Choucair, who essentially certified Szleszinski even while recommending additional testing.

¶ 20. Midwest did not subject Szleszinski to additional testing because Windhorst had subsequently concluded that "regardless of the results of any tests, and based upon the July 1988 report... a person with Wilson's disease should be disqualified from driving." Thus, Windhorst's report disqualified Szleszinski even after Choucair had cleared him.

¶ 21. It is disingenuous for Midwest to create a disagreement by seeking a second physician's report after the first report was favorable to the driver and then arguing the federal remedy should be exhausted. The dispute is between two physicians for the employer. We do not read the federal regulation to require Szlesz-inski to employ the federal dispute resolution procedure when the dispute is between two physicians for the same party. Because of this, and because the WFEA does not explicitly require exhaustion of administrative remedies, Szleszinski was not required to utilize the federal dispute resolution procedure prior to initiating his WFEA action.

Whether Midwest is an Employer under the WFEA

¶ 22. Under the WFEA, "no employer, labor organization, employment agency, licensing agency or other person may engage in any act of employment discrimination .. . ." Wis. Stat. § 111.321. LIRC ruled that Midwest was an employer under the WFEA. Midwest contends this is unsupported by facts of record, it is neither an employer nor an "other person," and the WFEA therefore does not apply to it. If we agreed with Midwest, this would be an alternate basis for affirming LIRC's decision. However, we conclude regardless of whether Midwest could be considered an employer, it is at least an "other person."

¶ 23. Based on its reading of Flowers v. South Cent. Wis. Joint Apprenticeship & Training Comm. (LIRC, 06/21/85), Midwest asserts that "other person" "is not intended as a catch-all to ensnare any other entity not specifically enumerated in the statute," including incorporated legal entities such as itself. Midwest's reliance on Flowers is misplaced.

¶ 24. South Central was an advisory body for the State Division of Apprenticeship and Training (the division). South Central "monitors the progress of apprentices and makes recommendations to [the division] on the completion of apprenticeship indentures or for cancellation of such indentures." Flowers filed his claim against South Central after his "apprenticeship indenture" was terminated. The ALJ ruled he had been terminated for cause, not racial discrimination as Flowers alleged.

¶ 25. LIRC, however, went another direction and ruled that the WFEA did not apply to South Central because it was not an employer, a licensing agency, or an "other person." There was no real dispute over its status as an employer — it was not one — but Flowers had argued it was a licensing agency. LIRC rejected that idea, ruling that a "licensing agency" necessarily refers to a unit or bureau of the government. South Central was a non-governmental group. Moreover, LIRC determined, it was ultimately the division that controlled Flowers' apprenticeship, not South Central, even though the division took recommendations from South Central.

¶ 26. Turning to whether South Central was an "other person," LIRC ruled it was not:

[Wis. Stat. § 990.01(26)] defines person to include "... all partnerships, associations and bodies politic or corporate." [South Central is none of these.]
Moreover, the Commission considers that in this statute the term "person" is used in its individual sense, as a contrast to the agencies, organizations and business entities listed immediately before "person." Otherwise, individuals would not be prohibited from discriminating. The Commission believes the Legislature did not intend to exclude individuals from this prohibition.

Midwest focuses on the latter paragraph to imply that "other person" necessarily refers to a human being.

¶ 27. However, in Johnson v. Central Reg'l Dental Testing Serv. (LIRC, 02/29/96), a case involving a dentistry examination service and its relationship to licensing in Wisconsin, LIRC clarified and limited Flowers. LIRC explained:

Notwithstanding the general suggestion ... that the "person" language might reach non-employer entities that affect employment opportunities, the Flowers decision is a narrow and specific declaration that this possibility does not exist in the specific case of nongovernmental organizations which make the determinations affecting decisions of governmental licensing organizations.
The Commission's decision need not and should not he extended beyond this specific kind of situation.

¶ 28. Midwest is not a non-governmental organization that makes determinations affecting decisions of government licensing organizations. Flowers is inapplicable here.

¶ 29. Rather, "the commission has consistently construed the coverage of the [W]FEA broadly, holding that a 'person' other than an employer, labor organization or licensing agency can violate the Act if it engages in discriminatory conduct which has a sufficient nexus with the denial or restriction of some individual's employment opportunity." Johnson (LIRC, 02/29/96). This is consistent with the supreme court's explanation that "the WFEA is a 'remedial statute . .. [and] should be broadly interpreted to resolve the problem it was designed to address.'" Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, ¶ 46, 264 Wis. 2d 200, 664 N.W.2d 651 (quoting McMullen v. LIRC, 148 Wis. 2d 270, 275, 434 N.W.2d 830 (Ct. App. 1988)).

¶ 30. Midwest's actions have "a sufficient nexus with the denial or restriction of' Szleszinski's employment opportunities. Employees of Transhield drove only for Midwest, and Midwest had the power to reject drivers. Therefore, if Midwest disqualified a driver, despite the fact that Transhield otherwise approved of the driver, the driver could not work because there was no other company for which to haul. Thus, Midwest's qualification decisions are directly related to a Tran-shield driver's employment opportunities. But even if Midwest is not an employer, we would hold that it is at the very least an "other person" under the WFEA. Any interpretation of the WFEA that would exclude Midwest from its application would allow Midwest to do indirectly what Transhield — who Midwest argues is the real employer — cannot do directly, and "ignores the purpose of the act and its intended liberal construction." See Johnson (LIRC, 02/29/96).

Whether Midwest has a Valid Safety Defense

¶ 31. Under the WFEA, it is not discrimination if an employer takes an action, such as refusal to hire or termination of employment, when the nature of the disability is "reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment, membership or licensure." Wis. Stat. § 111.34(2)(a). Moreover, in the case of common carriers, the profession's "special duty of care may be considered in evaluating whether the employee or applicant can adequately undertake the job-related responsibilities of a particular job ...." Wis. Stat. § 111.34(2)(c). However, "this evaluation shall be made on an individual case-by-case basis and may not be made by a general rule which prohibits the employment or licensure of individuals with disabilities in general or a particular class of individuals with disabilities." Id.

¶ 32. Federal regulations allow only physically qualified individuals to drive commercially. 49 C.F.R. § 391.41(a). A driver is qualified if he "[h]as no mental, nervous, organic, or functional disease . . . likely to interfere with his . . . ability to drive a commercial motor vehicle safely[.]" 49 C.F.R. § 391.41(b)(9).

¶ 33. To receive federal approval as an interstate carrier, 49 C.F.R. § 391.43(a), states drivers' physicals "shall be performed by a licensed medical examiner ...." The results of the exam are then to be recorded on an exam form like the one included in the Code. 49 C.F.R. § 391.43(f). Both subsections, read together, imply drivers will have actual, face-to-face contact with the doctor or other examiner. Thus, it appears that under the operative Code language, a paper review of the driver's medical history is insufficient.

¶ 34. Midwest and LIRC suggest that Windhorst's report reveals Szleszinski could not drive safely. We disagree and, moreover, we conclude Windhorst's "opinion" is an insufficient report as a matter of law under the Code, which requires actual examination of the patient. Windhorst's opinion was merely a conduit for application of a Department of Transportation conference report that never became a regulation.

¶ 35. Windhorst's report is also insufficient under the WFEA because the act requires a case-by-case assessment of each individual. Windhorst did not make an individualized determination about Szleszinski's ability to drive, but recommended disqualification simply the because the Department of Transportation report said that all Wilson's patients should be disqualified. While Midwest claims this constituted an individualized assessment because Windhorst reviewed Szleszinski's individual records, Windhorst stated that test results would be irrelevant to his determination whether to disqualify Szleszinski. In other words, Windhorst had no plans to rely on an individualized assessment of Szleszinski's abilities when the Wilson's diagnosis was, in Windhorst's mind, determinative of the outcome.

¶ 36. Indeed, LIRC concedes Windhorst did not perform an individual assessment of Szleszinski but it argues that its decision should stand because federal safety regulations prevail over lesser state standards. We reiterate, however, that the federal regulations require a physical examination — something Windhorst did not provide. His report therefore cannot be considered a valid basis for a determination of Szleszinski's fitness to drive. The only doctor who conducted a physical exam on Midwest's behalf after the erroneous driving reports declined to disqualify Szleszinski absent further testing.

¶ 37. Moreover, the federal regulations do indeed list some diseases and conditions that will, in fact, result in blanket disqualification, such as diabetes mellitus, 49 C.F.R. § 391.41(b)(3), and myocardial infarction. 49 C.F.R. § 391.41(b)(4). We might be more inclined to accept LIRC's federal supremacy argument if a listed disease or condition were involved. Wilson's disease, however, does not result in automatic disqualification of a driver under the Code.

¶ 38. Because Windhorst's evaluation is invalid as a matter of law, it should not have been considered by Midwest in its qualification determination or by LIRC at the hearing. Thus, there is no credible evidence to support the determination that Szleszinski was unfit to drive because both Choucair and Carlson, plus at least one private physician, thought he was qualified. Indeed, despite all the discussion of the impact of Wilson's disease on the body, no one provided any evidence that Wilson's was the reason Szleszinski was swerving on two occasions — which is what prompted Midwest's action in the first place.

¶ 39. To the extent that the ALJ, LIRC, and trial court decisions dismissed Transhield Trucking and/or Transhield Leasing Company from the case, we do not reach those determinations, because Szleszinski never challenged those parties' dismissal. In all other respects, the judgment is reversed. Additionally, the ALJ had awarded costs and attorney fees to Szleszin-ski. Accordingly, we remand for a determination of: (1) Szleszinski's attorney fees and costs through the date of the ALJ's decision; (2) whether Szleszinski is entitled to fees and costs for proceedings following the ALJ's decision; and (3) if Szleszinski is entitled to fees and costs for proceedings beyond the ALJ's decision, what the reasonable amount is.

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

       Szleszinski initiated this action but after his death, his estate was substituted. We will refer simply to Szleszinski throughout the opinion.

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

       All references to the Code of Federal Regulations are to the 2005 version.

       To the extent Midwest claims Choucair concluded Szlesz-inski had "serious" neurological deficits, the record citation it provides does not support such a conclusion.

       Neither LIRC nor Midwest addresses this argument as raised by Szleszinski. Thus, even if we did not believe the argument had merit, arguments not refuted are generally deemed admitted. See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979).

       We are particularly appreciative of the State Law Library, which retrieved copies of the LIRC decisions for us. Midwest was not required to provide these decisions, but as they are less readily accessible than regular case and statutory law, it would have been prudent of Midwest, which relies on the decisions so heavily, to provide them to us.

         Johnson involved a complaint against Central Regional Dental Testing Service and the State Department of Regulation and Licensing. Johnson alleged that the test administered by the Service worked to prevent minorities from becoming licensed in dentistry. LIRC relied on Flowers and rejected the Service as a respondent because it was an independent testing agency that provided test results for multiple states and the states ultimately set their own criteria for analyzing and applying the results into a licensing scheme.


author: SNYDER, PJ.

text:
    State of Wisconsin ex rel. Maurice Fort Greer, Petitioner-Appellant, v. Lawrence Stahowiak and Kevin Potter, Respondents-Respondents.
    Court of Appeals

      No. 2004AP1755.

      Submitted on briefs August 10, 2005.

      Decided September 28, 2005.

    2005 WI App 219
    (Also reported in 706 N.W.2d 161.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Maurice Fort Greer, pro se.
    On behalf of the respondents-respondents, the cause was submitted on the brief of Maura FJ Whelan, assistant attorney general, and Peggy A. Lauten-schlager, attorney general.
    Before Snyder, PJ., Nettesheim and Anderson, JJ.
   SNYDER, PJ.

¶ 1. Maurice Fort Greer appeals from an order dismissing his petition for a writ of mandamus. His petition sought reversal of a Department of Corrections (DOC) decision denying him access to certain documents he had requested under Wis. Stat. § 19.35 (2003-04), the public records law. He contends that the circuit court erred in concluding that his petition presented no evidence that the DOC acted in an arbitrary or capricious manner, or in any way contrary to state law or to the Wisconsin or United States Constitutions. We disagree with Greer's contention that the DOC's action was contrary to law, and we affirm the order of the circuit court.

BACKGROUND

¶ 2. Greer is a Wisconsin prisoner housed at the Wisconsin Secure Program Facility. It appears from the record that prior to August 4, 2000, Greer was at the Oshkosh Correctional Institution where he was involved in a disciplinary matter. That incident became the subject of litigation against the DOC. On March 8, 2004, Greer sent a public records request to Lawrence Stahowiak at the Oshkosh Correctional Institution and requested six records relating to the conduct report filed in the disciplinary matter.

¶ 3. The record contains no response from Sta-howiak regarding Greer's request. Greer filed an appeal with the DOC, alleging that Stahowiak failed to provide access to or copies of the requested documents within the statutory time limit. Kevin Potter, the DOC Records Custodian, reversed Stahowiak and indicated that some of the records requested by Greer would be released. Potter further determined that some of the documents would not be released because they constituted contraband under Wis. Admin. Code § DOC 303.10, 303.20 or 303.47 (Jan. 2001).

¶ 4. On June 16, 2004, Greer filed a writ of mandamus in Winnebago County Circuit Court, alleging that the DOC, by Potter, had "failed to provide [Greer] with sufficiently stated or specific reasons for denying the entirety of [Greer's] request." Greer further alleged that the DOC had a positive and plain duty to produce the requested documents and the failure to do so caused continuing substantial damage to him by depriving him of public information he is entitled to obtain. Finally, Greer alleged that the writ of mandamus was the only adequate legal remedy available to him.

¶ 5. The circuit court ordered Greer's petition dismissed on grounds that Greer had failed to state a claim upon which relief may be granted. Specifically, the court determined that Greer made conclusory allegations unsupported by any evidence that the DOC improperly responded to the public records request. Greer appeals.

DISCUSSION

¶ 6. Mandamus is an extraordinary writ that may be used to compel a public officer to perform a duty that he or she is legally bound to perform. See Karow v. Milwaukee County Civil Serv. Comm'n, 82 Wis. 2d 565, 568 n.2, 263 N.W.2d 214 (1978). In order for a writ of mandamus to he issued, there must be a clear legal right, a positive and plain duty, substantial damages, and no other adequate remedy at law. Pasko v. City of Milwaukee, 2002 WI 33, ¶ 24, 252 Wis. 2d 1, 643 N.W.2d 72.

¶ 7. Mandamus is the proper means to challenge a governmental agency's failure to comply with the requirements of Wisconsin's open records law. See ECO, Inc. v. City of Elkhorn, 2002 WI App 302, ¶ 1, 259 Wis. 2d 276, 655 N.W.2d 510. Where a circuit court, determining a petition for writ of mandamus, has interpreted Wisconsin's open records law and has applied that law to undisputed facts, we review the circuit court's decision de novo. State ex rel. Milwaukee Police Ass'n v. Jones, 2000 WI App 146, ¶ 11, 237 Wis. 2d 840, 615 N.W.2d 190. In doing so, we take direction from the legislature's declaration of policy:

In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.

Wis. Stat. § 19.31.

¶ 8. Public policy and public interest favor the public's right to inspect public records. Hathaway v. Joint Sch. Dist. No. 1, City of Green Bay, 116 Wis. 2d 388, 392, 342 N.W.2d 682 (1984). "[A]ny requester has a right to inspect any record" under Wisconsin's public records law. Wis. Stat. § 19.35(l)(a). As the State points out, however, a "requester" is generally not an incarcerated person "unless the person requests inspection or copies of a record that contains specific references to that person" and the requested record "is otherwise accessible to the person by law." Wis. Stat. § 19.32(3). Here, the record does not reveal whether the requested documents contained "specific references" to Greer. Nonetheless, the six records were related to a disciplinary proceeding against him, and we accept, for purposes of this appeal, that they contained such references. The remaining question, then, is whether the records were otherwise accessible to Greer by law.

¶ 9. Greer submitted his public records request "pursuant to ss. 19.34(2)(b)," which addresses procedural standards for public officials and agencies. Because Greer is incarcerated, he is limited to requests for records with "specific references" to him. Wis. Stat. § 19.32(3). For that reason, we analyze his request under Wis. Stat. § 19.35(l)(am).

¶ 10. Our supreme court observed that Wis. Stat. § 19.35(l)(am) provides "a more potent right of access when it applies." Hempel v. City of Baraboo, 2005 WI 120, ¶ 32, 284 Wis. 2d 162, 699 N.W.2d 551 (comparing requests made under § 19.35(l)(a) with those under (l)(am)). When a request is made under 19.35(l)(am), the right to inspect the record "is more unqualified" than the right that attaches to a more general record request under 19.35(l)(a). Hempel, 699 N.W.2d 551, 34. Our supreme court has stated that "[w]hen a person makes an open records request for records containing personally identifiable information under Wis. Stat. § 19.35(l)(am), the person is entitled to inspect the records unless the surrounding factual circumstances reasonably fall within one or more of the statutory exceptions to (am)." Hempel, 699 N.W.2d 551, 27. Access to public records containing the requester's personally identifiable information is not limited by common law exceptions and is not subject to a balancing test. Id., 34. "Paragraph (am) recognizes only statutory exceptions." Hempel, 699 N.W.2d 551, 34.

¶ 11. With these principles in mind, we turn to Greer's allegations of error. He contends that the DOC's partial denial of his request was arbitrary and capricious. He challenges the DOC's determination that "public policy reasons for withholding these documents outweigh your interests in obtaining them." We agree with Greer that this reason, standing alone, is not the appropriate test to apply to a Wis. Stat. § 19.35(l)(am) request. In Hempel, our supreme court explained that requests under paragraph (am) "are not subject to any balancing test; the legislature has done the balancing by enacting statutory exceptions to the disclosure requirements." Hempel, 699 N.W.2d 551, 27.

¶ 12. Nonetheless, the DOC properly turned to the statutory provisions and administrative rules to determine which of Greer's requested documents should be provided. Access to public records containing personally identifiable information is not available if disclosure would:

a. Endanger an individual's life or safety.
b. Identify a confidential informant.
c. Endanger the security, including the security of the population or staff, of any state prison ....
d. Compromise the rehabilitation of a person in the custody of the department of corrections ....

Wis. Stat. § 19.35(1)(am)2. The DOC specifically referenced the statute and the administrative rules set forth in Wis. Admin. Code §§ DOC 303.10, 303.20, and 303.47 (Jan. 2001), to determine whether the requested documents would endanger the prison population or staff or would compromise Greer's rehabilitation. The DOC stated:

You will not be provided the letter in item #1, the altered letter which is part of #4, or #5 (2 letters from Jeff Fort to Maurice Greer) and #6 (a copy of the constitution of the Almighty Black E Stone Ranger Nation), referenced in the conduct report. All of these items constitute contraband under DOC 303.10 or 303.47 and accordingly, you may not possess them. Specifically, the altered letter listed in item #1, would fall within the definition of contraband under DOC 303.10(1) (e). Item #5, #6, and the letters from Fort to Greer which are part of #4 contain, constitute or reference gang related literature contrary to DOC 303.20, and accordingly are also considered contraband which cannot be provided to you. Providing you this information would also be contrary to Sec. 19.35(l)(am)2a., c., and d., Stats.
The DOC has formulated administrative rules to insure the proper functioning and operation of its secured facilities, the safety of the people housed and working there, and the rehabilitation of the inmates. Allowing you to obtain and possess contraband including altered documents and gang related materials would not only violate these code provisions, but would also undermine the security of the institution, and place the other inmates and staff at risk.

¶ 13. We conclude that the DOC's response was appropriate. The right to inspect or copy materials does not apply to records that would "[ejndanger the security of the population or staff' of a state prison, or that would "Compromise the rehabilitation of a person in the custody of the department of corrections." Wis. Stat. § 19.35(1)(am)2.c. and d. We find no error in the DOC's analysis.

¶ 14. Greer also submits that his petition should not have been dismissed for failure to state a claim. When a matter comes to us from an order for dismissal for failure to state a claim, we accept the facts alleged in the petition as true for purposes of our review. Bammert v. Don's Super Valu, Inc., 2002 WI 85, ¶ 5, 254 Wis. 2d 347, 646 N.W.2d 365. Whether dismissal was appropriate is a question of law that we review de novo. Id., ¶ 8. We will affirm the dismissal order only if it is clear that no relief can be granted under any set of facts that the plaintiff could prove in support of the allegations. See Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis. 2d 723, 731, 275 N.W.2d 660 (1979).

¶ 15. In order for a writ of mandamus to be issued, there must be a clear legal right, a positive and plain duty, substantial damages, and no other adequate remedy at law. Pasko, 252 Wis. 2d 1, ¶ 24. We conclude that Wis. Stat. § 19.35(l)(am) does not provide Greer with a clear legal right to the requested documents. Rather, it provides Greer with a legal right to documents that do not fall within the exceptions enumerated in § 19.35(1)(am)2. Greer has not presented any factual basis or legal theory upon which this court could conclude that his request survives scrutiny under § 19.35(l)(am)2.

CONCLUSION

¶ 16. The DOC properly responded to Greer's request for public records by determining which documents must be disclosed and which are subject to the statutory exceptions provided in Wis. Stat. § 19.35(l)(am)2. Furthermore, no relief is available under the facts or legal theories advanced by Greer. Therefore, the circuit court properly dismissed the petition for a writ of mandamus for failure to state a claim upon which relief may be granted.

By the Court. — Order affirmed.

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