source: Caselaw Access Project

author:
DIANE S. SYKES, J.
      ANN WALSH BRADLEY, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. William G. Johnson, Defendant-Appellant.
    Supreme Court

      No. 99-2968-CR.

      Oral argument February 5, 2001.

    Decided May 30, 2001.

    2001 WI 52
    (Also reported in 627 N.W.2d 455.)

      For the defendant-appellant there were briefs and oral argument by Martha K. Askins, assistant state public defender.

      For the plaintiff-respondent the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   DIANE S. SYKES, J.

¶ 1. This case presents a constitutional challenge to the statute making it a crime to engage in repeated acts of sexual assault of the same child, Wis. Stat. § 948.025 (1997-98). The defendant challenges the provision in the statute that relieves the jury of any requirement of unanimity as to the specific individual acts of sexual assault that combine to constitute the crime, as long as it unanimously agrees that the defendant committed the minimum number required, to wit, at least three.

¶ 2. The statute previously survived a unanimity challenge under the state constitution in State v. Molitor, 210 Wis. 2d 415, 565 N.W.2d 248 (Ct. App. 1997). In Molitor, the court of appeals concluded that the statute's requirement of jury unanimity on the existence of a continuing course of sexually assaultive conduct satisfied the defendant's right to a unanimous verdict, even though unanimity is not required as to each discrete act of sexual assault comprising the course of conduct. Then came Richardson v. United States, 526 U.S. 813 (1999), in which the United States Supreme Court held that to convict a defendant under the federal "continuing criminal enterprise" drug statute, the jury must unanimously agree on the specific underlying drug code violations that comprise the "continuing criminal enterprise". Id. at 815.

¶ 3. After Molitor but before Richardson, the defendant in this case, William G. Johnson, was convicted under Wis. Stat. § 948.025 for repeated sexual assault of the same child, after a trial in which the state introduced evidence of more than three separate acts of sexual assault against the same victim. On post-conviction motion and appeal, Johnson argued that Molitor cannot survive Richardson, and since the jury in his case had not been instructed that it must be unanimous on the specific predicate acts of sexual assault that comprised the crime, his right to a unanimous verdict had been violated. The court of appeals certified the case to us. We conclude that Molitor survives Richardson, and under the state and federal constitutional analyses in both cases,, the statute is constitutional. Accordingly, we affirm the circuit court's denial of the motion for a new trial.

( — I

¶ 4. Johnson was charged with repeated sexual assault of the same child in violation of Wis. Stat. § 948.025 arising out of a series of incidents involving Roshunda R., who was 14 years old when the incidents occurred. At trial, Roshunda testified that she used to live across the street from Johnson's girlfriend and that she would sometimes play with his girlfriend's children. Roshunda testified that during the summer of 1997, Johnson touched her sexually a number of times. The first of these sexual contacts occurred on a day in July 1997, when a person Roshunda knew as "Marianne" got in trouble with the police; a detective's testimony determined this date to be July 8, 1997. Roshunda was on Johnson's porch that evening with a number of other people, and Johnson touched her chest over her clothes. When she moved to a different spot on the porch, Johnson followed her and touched her again on her chest and "butt."

¶ 5. Roshunda also testified about a separate incident that occurred later that summer, on a day when her family returned to Kenosha from Waukegan, Illinois, where they were living at the time. Roshunda's mother established this date as August 21, 1997. Roshunda testified that while she and her sister were visiting at Johnson's house on that day, Johnson touched her on her breast and "bottom." When she tried to leave the house, Johnson asked her for a hug and a kiss and then hit her "bottom" as she was going out the door.

¶ 6. Roshunda also testified about a game of tag that occurred sometime in July 1997. She said that during the game of tag, Johnson caught her from behind and touched her chest, "butt," and vagina.

¶ 7. At the conclusion of the trial, the Kenosha County Circuit Court, the Honorable Michael S. Fisher, instructed the jury on the elements of the crime of repeated sexual assault of the same child:

Before you may find the defendant guilty of this offense, the State must prove by evidence which satisfied you beyond a reasonable doubt, that the following three elements were present.
The first element requires that the defendant committed three or more sexual assaults of Roshunda. In this case, the sexual assaults are alleged to have involved sexual contact.
The second element requires that Roshunda had not attained the age of 16 years at the time of each act of sexual contact.
The third element requires that at least three of the alleged sexual assaults took place from a specific period of time. The specific period of time is from July 1,1997 through August 21,1997.

¶ 8. This instruction derives from the pattern jury instruction applicable to this crime. See Wis JI — Criminal 2107. However, the circuit court did not read the entire instruction to the jury, but, rather, omitted the part of the instruction recommended for use in cases in which evidence of more than three acts of sexual assault has been admitted. That section of the pattern instruction paraphrases Wis. Stat. § 948.025(2) and tells the jury: "Before you may find the defendant guilty, you must unanimously agree that at least three sexual assaults occurred. . .but you need not agree on which acts constitute the required three." Johnson was convicted and sentenced to ten years in prison.

¶ 9. Johnson moved for a new trial, arguing that his right to a unanimous verdict had been violated because the State introduced evidence of more than the minimum number of sexual assaults required to constitute the crime, but the jury was not instructed that it had to agree unanimously on the specific acts of sexual assault before convicting him. Johnson argued that Richardson, decided after his trial, called into question the constitutionality of Wis. Stat. § 948.025 because the statute specifically allows conviction in the absence of jury unanimity on thé individual acts of sexual assault that make up the crime. The circuit court denied the postconviction motion, concluding that Richardson was distinguishable from Molitor. Johnson appealed, and the court of appeals certified the case to us.

HH W

¶ 10. The constitutionality of a statute is a question of law that this court reviews without deference to the lower courts. State v. Randall, 192 Wis. 2d 800, 824, 532 N.W.2d 94 (1995). Statutes are presumed to be constitutional. Gloria A. v. State, 195 Wis. 2d 268, 276, 536 N.W.2d 396 (Ct. App. 1995). A statute will not be invalidated unless it has been proven unconstitutional beyond a reasonable doubt. Bachowski v. Salamone, 139 Wis. 2d 397, 404, 407 N.W.2d 533 (1987). The party challenging a statute's constitutionality bears the burden of overcoming the strong presumption in favor of the statute's validity. State v. Borrell, 167 Wis. 2d 749, 762, 482 N.W.2d 883, 887 (1992).

¶ 11. The Wisconsin Constitution's guarantee of the right to trial by jury includes the right to a unanimous verdict with respect to the ultimate issue of guilt or innocence. Wis. Const., art. I, §§ 5 and 7; State v. Derango, 2000 WI 89, ¶ 13, 236 Wis. 2d 721, 731, 613 N.W.2d 833. To say that the jury must be unanimous, however, does not explain what the jury must be unanimous about. For this we look to the statutory language defining the crime and its elements. "The principal justification for the unanimity requirement is that it ensures that each juror is convinced beyond a reasonable doubt that the prosecution has proved each essential element of the offense." Derango at ¶ 13 (quoting State v. Lomagro, 113 Wis. 2d 582, 591, 335 N.W.2d 583 (1983)). Thus, while jury unanimity is required on the essential elements of the offense, when the statute in question establishes different modes or means by which the offense may be committed, unanimity is generally not required on the alternate modes or means of commission. Derango, 2000 WI at ¶¶ 13-14.

¶ 12. Ordinarily, then, the first step in a unanimity challenge is an examination of the language of the statute in order to determine the elements of the crime and whether the legislature has created a single offense with multiple or alternate modes of commission. Derango, 2000 WI at ¶ 14. "The point is to determine legislative intent: did the legislature intend to create multiple, separate offenses, or a single offense capable of being committed in several different ways?" Id. at ¶ 15. For example, where the legislature has specified that any of several different mental states will satisfy the intent or mens rea element of a particular crime, unanimity is not required on the specific alternate mental state as long as the jury unanimously agrees that the state has proven the intent element beyond a reasonable doubt. Id. at ¶¶ 23-25.

¶ 13. Federal constitutional due process considerations, however, limit the state's ability to define a crime so as to dispense with the requirement of jury unanimity on the alternate means or modes of committing it. Richardson, 526 U.S. at 820 (citing Schad v. Arizona, 501 U.S. 624, 632-33 (1991) (plurality opinion) and Id. at 651 (Scalia, J., concurring); Derango, 2000 WI at ¶ 22 (citing Schad, 501 U.S. at 635). So the second step in the analysis is an evaluation of whether the lack of jury unanimity on the alternate means or modes of commission violates due process. Derango, 2000 WI at ¶ 22. This involves an inquiry into the fundamental fairness and rationality of the legislative choice, starting, however, with a presumption that the legislature has made its determination fairly and rationally. Id. As we noted in Derango, the due process fundamental fairness and rationality test for unanimity challenges was established by the Supreme Court in Schad and focuses on historical practice and the relative moral and conceptual equivalence of the alternate modes or means of committing the crime. Id.

¶ 14. The statute in question here does not present a difficult issue of statutory interpretation. The language of Wis. Stat. § 948.025 is unambiguous as to the elements of the offense and the question of what the jury must be unanimous about before convicting a defendant of repeated sexual assault of the same child:

948.025 Engaging in repeated acts of sexual assault of the same child. (1) Whoever commits 3 or more violations under s. 948.02(1) or (2) [first and second degree sexual assault of a child] within a specified period of time involving the same child is guilty of a Class B felony.
(2) If an action under sub. (1) is tried to a jury, in order to find the defendant guilty the members of the jury must unanimously agree that at least 3 violations occurred within the time period applicable under sub. (1) but need not agree on which acts constitute the requisite number.

¶ 15. It is clear from this language that the predicate acts of sexual assault are not themselves elements of the offense, about which the jury must be unanimous before convicting the defendant. Rather, to convict under this statute, the jury need only unanimously agree that the defendant committed at least three acts of sexual assault of the same child within the specified time period. Where evidence of more than three acts is admitted, the jury need not unanimously agree about the underlying acts as long as it unanimously agrees that the defendant committed at least three.

¶ 16. In other words, it is the course of sexually assaultive conduct that constitutes the primary element of this offense, about which the jury must be unanimous (the second and third elements are the age of the victim and the timing of the acts). See Wis JI — Criminal 2107. Unanimity is explicitly not required regarding the individual acts of sexual assault.

¶ 17. This brings us to the question of whether dispensing with unanimity on the predicate acts that comprise the course of conduct element of this offense is consistent with federal due process under Derango and Schad. This also is not a difficult question. This statute was enacted in 1993, and, therefore, like the statute at issue in Derango, "does not have a lengthy history to look to as an indicia of what is acceptable as fundamentally fair; but Schad recognized that this might often be the case with modern criminal statutes." Derango, 236 Wis. 2d at 738 (citing Schad, 501 U.S. at 640, n. 7). Nevertheless, Wisconsin has historically held that in "continuing course of conduct" crimes, the requirement of jury unanimity is satisfied even where the jury is not required to be unanimous about which specific underlying act or acts constitute the crime. See Lomagro, 113 Wis. 2d at 589; State v. Giwosky, 109 Wis. 2d 446, 451, 326 N.W.2d 232 (1982).

¶ 18. Furthermore, the predicate acts of first- and second-degree sexual assault that combine to establish the required course of conduct under Wis. Stat. § 948.025 are basically morally and conceptually equivalent. There is, of course, a distinction in victim age and maximum penalty as between first- and second-degree sexual assault of a child: the former involves victims under age 13 and carries a 40-year confinement maximum; the latter involves victims under age 16 and carries a 20-year confinement maximum. See Wis. Stat. § 948.02(1) and (2). And different types of sexual conduct — from sexual intercourse to various forms of sexual contact — can be implicated in either offense. See Wis. Stat. §§ 948.02(1) and (2), 948.01(5) and (6). But these variations are not of such a degree or nature as to call into question the basic moral and conceptual equivalence of first- and second-degree sexual assault of a child. Lack of jury unanimity regarding the specific acts constituting the required minimum of three raises no concern about fundamental fairness under these circumstances.

¶ 19. After all, the violations of the law about which the jury need not be unanimous under this statutory scheme all involve the sexual abuse of children, crimes of the same or similar nature and level of culpability. It is therefore not unfair or irrational to lift the requirement of jury unanimity as to the specific underlying acts as long as unanimity is required regarding the existence of the course of conduct, defined as at least three acts of sexual assault of the same child.

¶ 20. This is essentially the same conclusion the court of appeals reached in Molitor, although it did not engage in the Schad due process analysis as we have just done. In Molitor, the defendant was charged under Wis. Stat. § 948.025 with engaging in sexual intercourse with a 15-year-old girl "on more than three occasions between April 1 and May 21, 1995." Molitor, 210 Wis. 2d at 418. Molitor pleaded no contest to the charge and was sentenced to a 20-year prison term.

¶ 21. On appeal, Molitor attacked the constitutionality of Wis. Stat. § 948.025 on unanimity grounds. The court of appeals rejected the defendant's argument and upheld the statute, citing our "continuing course of conduct" cases, Giwosky and Lomagro:

The supreme court in State v. Giwosky concluded that when the charged behavior constitutes "one continuous course of conduct," the requirement of jury unanimity is satisfied regardless of whether there is agreement among jurors as to "which act" constituted the crime charged. (Emphasis omitted). While the course of conduct in Giwosky was a "short continuous incident that can not be factually separated," the court later clarified in State v. Lomagro that the duration of the course of conduct was not "legally significant." The unanimity requirement is met where multiple acts can be said to constitute "one continuous, unlawful event and chargeable as one count."
The question in Lomagro was whether the aggregation of multiple, conceptually similar acts in a single charged crime was constitutionally permissible as an act of prosecutorial discretion. The language of § 948.025, Stats., plainly shows that the legislature intended to create a single crime, the repeated sexual assault of the same child within a specified time period. The question before us, then, is whether the legislature may, like prosecutors, aggregate conceptually similar acts in a single "course of conduct" crime, albeit for acts committed over an indefinite, and presumably longer, period of time. We conclude that it may.

Molitor, 210 Wis. 2d at 420-421 (citations omitted).

¶ 22. Johnson argues that the Supreme Court's decision in Richardson abrogates Molitor on due process grounds. We disagree. In Richardson, the Supreme Court evaluated a unanimity challenge to the federal "continuing criminal enterprise" statute in light of the statute's language and the due process considerations articulated in its decision in Schad. The statute, 21 U.S.C. § 848(a) (1994), defines a "continuing criminal enterprise" (CCE) as a "continuing series of violations" of federal drug laws undertaken by an "organizer" or "supervisor" of the enterprise, in concert with at least five other persons, and from which the defendant derives substantial income. See 21 U.S.C § 848(c) (1994). The district court instructed the jury that it must "unanimously agree that the defendant committed at least three federal narcotics offenses," adding that "[y]ou do not. . .have to agree as to the particular three or more federal narcotics offenses committed by the defendant." The defendant was convicted.

¶ 23. The Supreme Court reversed, holding that to convict under the CCE, the jury must be unanimous not only on the question of whether the defendant committed a "continuous series of violations" of the federal drug laws, but also on the specific "violations" that make up the continuing series. In reaching this conclusion, the Court focused on the language of the statute, historical tradition, and the potential for unfairness. Richardson, 526 U.S. at 818-20. That is, the Court initially engaged in an exercise of statutory interpretation, and then applied the due process test articulated in Schad.

¶ 24. The Court concluded that the CCE statute's use of the word "violation" to describe the constituent parts of the course of conduct required to comprise the "continuing series" was a legal term of art, and meant that Congress intended each violation to be treated as an element of the offense. Richardson, 526 U.S. at 818-19. Furthermore, the Court concluded that the breadth of the violations that could potentially qualify as part of the series under the statute — ranging from civil penalties for removing drug labels, to simple criminal possession, to endangering human life while manufacturing a controlled substance and possession with intent to deliver large quantities of drugs — raised due process concerns. The Court noted that the federal drug code encompassed "many different kinds of behavior of varying degrees of seriousness," and that this breadth would aggravate the danger of unfairness if the jury were not required to be unanimous about the predicate acts making up the continuing criminal enterprise. Id. at 819. The Court identified two principal concerns: first, by treating predicate violations simply as alternate means of committing the crime, jurors could avoid the specific factual details of each violation and thus cover up potential disagreements about what the defendant did or did not do; second, unless jurors were required to focus on specific factual detail, they might conclude "that where there is smoke there is fire." Id

¶ 25. Applying the Supreme Court's analysis in Richardson to Wis. Stat. § 948.025 does not require us to overrule Molitor or invalidate the statute. To the contrary, as we have set forth above, an examination of the statute's language and an application of the Schad due process test for fundamental fairness and rationality yields the same conclusion as that reached in Molitor. Unlike the federal CCE statute at issue in Richardson, Wis. Stat. § 948.025 plainly does not designate the predicate acts of sexual assault as elements of the offense of repeated sexual assault of a child, about which the jury must be unanimous. Rather, the statute explicitly excludes the predicate acts from any unanimity requirement. As such, and in contrast to Richardson, no exercise in statutory interpretation is necessary here.

¶ 26. Furthermore, as we have discussed at length above, the risk of unfairness in dispensing with unanimity on the predicate acts under this statute is not present as it was in Richardson. The range of crimes included as predicate acts under the CCE, totaling approximately 90 numbered sections of the federal criminal code and covering minor civil drug offenses as well as major drug felonies, is far greater than the two types of sexual assault of a child included as predicate acts under Wis. Stat. § 948.025. In Richardson there was insufficient moral equivalence and conceptual similarity in the 90 or so predicate drug crimes included within the ambit of the CCE to sustain an interpretation of the statute that would permit nonunanimity on the predicate acts. Here, the predicate acts of first- and second- degree sexual assault of a child are sufficiently equivalent to justify the legislature's decision to dispense with unanimity on the predicate acts.

¶ 27. Finally, the Supreme Court in Richardson specifically noted that state statutes pertaining to child sexual assault are distinguishable under its analysis:

The closest analogies [the federal government] cites consist of state statutes making criminal such crimes as sexual abuse of a minor. State courts interpreting such statutes have sometimes permitted jury disagreement about a "specific" underlying criminal "incident" insisting only upon proof of a "continuous course of conduct" in violation of the law. . . .The state practice may well respond to special difficulties of proving individual underlying criminal acts, which difficulties are absent here. . . .The cases are not federal but state, where this Court has not held that the Constitution imposes a jury unanimity requirement. And their special subject matter indicates that they represent an exception; they do not represent a general tradition or a rule.

Richardson, 526 U.S. at 821-22 (citations omitted). That the Supreme Court excluded this type of state statute from its analysis in Richardson supports our conclusion that Molitor has not been abrogated, and Wis. Stat. § 948.025 is not unconstitutional on unanimous verdict or due process grounds.

¶ 28. Accordingly, we conclude that Johnson has not overcome the presumption of constitutionality that attends the legislative determination to dispense with a unanimity requirement for the individual acts of child sexual assault that comprise the crime of repeated sexual assault of the same child. Under the state and federal constitutional analyses of Molitor, Richardson, and Schad, Wis. Stat. § 948.025 does not violate due process or the right to a unanimous verdict. We affirm the order of the circuit court denying Johnson's motion for a new trial.

By the Court. — The order of the circuit court for Kenosha County is affirmed.

ANN WALSH BRADLEY, J.

¶ 29. (dissenting). The case before us presents two constitutional challenges to Wis. Stat. § 948.025(2). The defendant's challenges are grounded in different constitutions and implicate different bodies of law. I believe a properly conceived and applied Fourteenth Amendment due process inquiry, guided by the principles enunciated in United States v. Richardson, 526 U.S. 813 (1999), requires that § 948.025(2) be declared unconstitutional. I also believe that by undermining established Wisconsin precedent, the majority obfuscates the guarantee of a unanimous jury verdict provided by Article I, Sections 5 and 7 of our state constitution. Accordingly, I respectfully dissent.

¶ 30. Under § 948.025(2), a jury need not agree on the individual offenses that comprise the crime of repeated acts of sexual assault of a child. Our court of appeals previously addressed this statute in State v. Molitor, 210 Wis. 2d 415, 565 N.W.2d 248 (Ct. App. 1997). In certifying this case for our review, however, the court of appeals acknowledged the deficiencies of its analysis in Molitor, in particular its failure to take into account the considerations of fairness required by due process under Richardson:

We did not conduct such a detailed analysis [as presented by Richardson] in Molitor... .[0]ur analysis of the language was cursory at best and was done without the benefit of the reasoning in Richardson. ... In addition, we did not consider the potential for unfairness, particularly whether treating the violations as a "series" would permit widespread disagreement among- the jurors to go unnoticed or permit jurors to simply conclude from the testimony that where there is smoke there is fire.

Despite these recognized deficiencies, the majority reaffirms the Molitor analysis. In the process, it rejects the controlling authority of Richardson and the considerations of fairness necessitated by due process. The majority, in addressing both constitutional challenges, endorses the Molitor analysis and thus succumbs to the same shortcomings.

¶ 31. I turn first to the Fourteenth Amendment due process challenge. The majority concludes that § 948.025(2) clears the hurdle of the due process limitation on the legislature's power to define crimes in a manner that allows the jury to disagree as to means in which the crime was committed. It hinges its conclusion on an analysis into history and the relative "moral and conceptual equivalence" of the predicate offenses that constitute a violation of § 948.025. However, even the most cursory review of the relevant United States Supreme Court precedent reveals that the due process analysis required by the Fourteenth Amendment cannot be collapsed into the two-part inquiry advanced by the majority.

¶ 32. In clinging to its formulaic two-part test, the majority has abandoned the Supreme Court's guidance in defining the limits of due process and ignores the critical inquiries required by Schad v. Arizona, 501 U.S. 624 (1991) and Richardson. In Schad, the Supreme Court first scrutinized a statutory definition of an offense that allows jury disagreement and concluded that such a statute is subject to the due process demands of fundamental fairness and rationality. 501 U.S. at 637. A plurality of the Court offered guideposts that emphasized the demands for fairness and rationality, advancing an inquiry into the "history and wide practice as guides to fundamental values" as well as the "moral and practical equivalence" of the alternative means of committing the crime. Id. at 637-38. Justice Scalia, who provided the fifth vote on the due process question in Schad, offered an analysis that focused on historical practice, criticizing the plurality's creation of a moral equivalence requirement. Id. at 651 (Scalia, J., concurring).

¶ 33. In construing the federal statute at issue in Richardson, the Supreme Court explained that it was guided by the constitutional limits on a state's "power to define crimes in ways that would permit juries to convict while disagreeing about means." 526 U.S. at 820. Harmonizing the plurality and concurring opinions of Schad for the first time, the Court explained that the state exceeds the limitations imposed by due process when its definition of a crime "risks serious unfairness and lacks support in history or tradition." Id.

¶ 34. A proper consideration of the risk of unfairness, history, and tradition must lead to the conclusion that § 948.025(2) exceeds the limits of due process. Because Richardson represents the analysis approved, by a majority of the United States Supreme Court in an analogous case, today's majority is remiss in not adhering to that analysis. Instead, it dismisses Richardson and concludes that "the risk of unfairness in dispensing with unanimity. . .is not present as it was in Richardson." Majority op. at ¶ 26.

¶ 35. There is no doubt that removal of the requirement of jury unanimity as to the predicate offenses that comprise the crime of repeated sexual assaults of the same child risks serious unfairness. The risk of unfairness, as identified by the Richardson Court, is twofold. First, there is the risk that absence of a requirement that the jury agree on the particular acts committed "will cover up wide disagreement among the jurors about just what the defendant did, or did not, do." Richardson, 526 U.S. at 819.

¶ 36. Section 948.025(2) epitomizes this risk. In a case where a sufficiently high number of sexual assaults are alleged, a jury could conceivably convict a defendant without any two jurors agreeing as to the predicate violations of § 948.02(1) or (2) that they believe the defendant committed. Even in the ordinary case, § 948.025(2) will mask juror disagreement as to which offenses the defendant actually committed.

¶ 37. As a practical matter, allowing such juror disagreement amounts to little more than an abrogation of the State's burden of proof for each individual predicate offense through the creation of a "continuous course of conduct crime." The State is no longer required to convince all twelve jurors beyond a reasonable doubt that the defendant committed a specific act of sexual assault. Rather, the State need only convince some jurors that the defendant committed acts A, B, and C; other jurors may find that the defendant committed acts D, E, and F. Where no valid conviction for a single individual act could otherwise stand because of the lack of jury agreement, the defendant may nonetheless be convicted under § 948.025.

¶ 38. Ironically, the State itself provides the strongest argument illustrating the unfairness posed by § 948.025(2). The state candidly advances in its brief that the prosecution in this case pursued a conviction under § 948.025 because of the difficulties of proving the individual instances of assault:

[T]he prosecutor must have believed there would be problems proving up the individual sexual assaults or else there would have been no reason to charge Johnson with a single violation of § 948.025 rather than with multiple violations of § 948.02(2).

The state's position leads me to ask, much like the Richardson Court asked when presented with a similar argument premised on the alleged difficulty in establishing the predicate offenses: Does the difficulty in proving the individual specific offenses not tend to cast doubt upon the very existence of the requisite "course of conduct"? See Richardson, 526 U.S. at 823.

¶ 39. The second risk of unfairness posed by the abrogation of the requirement of unanimity is that by not requiring the jurors to focus upon specific factual details the jury may conclude that "where there is smoke there is fire." Richardson, 526 U.S. at 819. In other words, when presented with numerous allegations of sexual assault, but relieved of the obligation of finding that three particular assaults occurred beyond a reasonable doubt, the jury will convict out of a belief that there must have been at least three sexual assaults.

¶ 40. While both of these risks of unfairness, which were set forth by the Supreme Court in Richardson, are present under § 948.025(2), the majority brushes them aside. The majority instead rests on its inquiry into "moral and conceptual equivalence" of the predicate offenses about which the jurors are permitted to disagree. Unfortunately, the majority's analysis, which concludes that similar crimes may be grouped together as a "continuous course of conduct" crime under which the requirement of jury unanimity may be eliminated, misses the mark. The inquiry does little to reflect on the overall unfairness of allowing a jury to disagree entirely on which criminal acts serve as the basis for conviction. The similarity of the underlying offenses is no substitute for the requisite proof and agreement that the offenses were actually committed by the defendant.

¶ 41. While I would conclude that the risk of serious unfairness alone defeats the constitutionality of § 948.025(2), I note that the statute lacks support in both tradition and history. There is no tradition in the law supporting the constitutionality of a statute that defines an offense in a manner which allows jurors to wholly disagree as to the acts comprising the offense. Indeed, the Richardson Court noted that the law reflects a competing tradition: the "tradition of requiring juror unanimity where the issue is whether a defendant has engaged in conduct that violates the law." 526 U.S. at 819.

¶ 42. Additionally, there is no historical support for an offense that allows juror disagreement in the manner of § 948.025(2). The majority gives this inquiry short shrift, concluding that because the statute is a recent creation, history is not a relevant inquiry into its constitutionality. The Schad plurality noted the "obvious proposition" that modern statutory offenses lacking support in the common law may not necessarily be tested by the "yardstick" of history. 501 U.S. at 640 n.7. However, this should not end the inquiry. The majority could, but does not, acknowledge that there is no analog in American legal history to the statutory abrogation of the requirement of jury unanimity presented in this case.

¶ 43. The lack of a historical antecedent invites an inquiry into the widespread contemporary acceptance of a particular practice. Indeed, the plurality opinion in Schad, to which the majority clings, featured an inquiry into the widespread use as an indicator of fundamental fairness and rationality. 501 U.S. at 640-643. Had the majority conducted an inquiry into the practices of other states, it would have been forced to acknowledge that only five other states have such statutory provisions. Moreover, it would have noted that Wis. Stat. § 948.025 is perhaps the most expansive of the few state statutes that relieve the requirement of jury unanimity in this context. Unlike Wisconsin, the few other states that do provide for such a statute limit the statute's breadth, through limitations on the circumstances of the assaults and on the timeframe during which the offenses must occur. Thus comparing § 948.025(2) to the practice of other states, it cannot be said that the removal of jury unanimity as to the predicate offenses under § 948.025(2) is supported by widespread practice.

¶ 44. All told, I believe that § 948.025(2) cannot pass constitutional muster in light of Richardson. Section 948.025(2) poses substantial risks of unfairness to the criminal defendant and also lacks support in history and tradition. Accordingly, it exceeds the state's ability to define crimes in a manner that allows jury disagreement as to the modes of commission and violates due process.

¶ 45. Although I would rest the fate of § 948.025(2) on the due process afforded by the Fourteenth Amendment, I also address the majority's treatment of the state constitutional guarantee of a unanimous jury verdict under Article I, Sections 5 and 7.1 am concerned about the untold consequences of the majority's acceptance of State v. Molitor .

¶ 46. By accepting the court of appeals' analysis in Molitor, the majority seems to have expanded the principles of State v. Giwosky, 109 Wis. 2d 446, 326 N.W.2d 232 (1982), and State v. Lomagro, 113 Wis. 2d 582, 335 N.W.2d 583 (1983), to an irrational degree. The potential result is that Giwosky and Lomagro and the accepted delineation of the jury unanimity requirement expressed in those cases have been wholly undermined.

¶ 47. Giwosky and Lomagro provide that a continuous criminal episode, although consisting of numerous criminal acts, may be treated as a single offense and that a jury need not be unanimous as to which specific act serves as the basis for conviction. In Giwosky, the requirement of jury unanimity was not violated when jurors were able to conclude that either of two assaultive acts committed within minutes in the same fight supported the defendant's battery conviction. We reasoned that "[t]he evidence introduced at trial established that the encounter was a short continuous incident that cannot be factually separated." 109 Wis. 2d at 456. In Lomagro, the guarantee of jury unanimity was not violated where numerous acts of sexual violence occurring over a two-hour period were presented to the jury as one count of sexual assault. We explained that, as in Giwosky, the encounter was "one continuing criminal episode and properly chargeable as one offense." 113 Wis. 2d at 598.

¶ 48. By adopting the Molitor rationale, the majority takes the Giwosky ¡Lomagro concept of a continuous criminal episode, limited in time and circumstance, and extrapolates it to include a series of non-continuous, separate and distinct criminal episodes. In doing so the majority seemingly defeats the concept of continuity that was the backbone of the Giwosky and Lomagro analysis.

¶ 49. Although the majority dons § 948.025 with the title of a "continuous course of conduct" crime, there is nothing continuous about the predicate offenses that comprise the violation of § 948.025 in this case. These crimes may involve the same victim and offender and they may be related offenses. They may also be part of a recurring pattern of conduct on the part of the defendant. However, unlike Giwosky, which involved offenses separated by a few minutes or Lomagro where the time span was around two hours, the offenses here are interrupted significantly by time and space. They occurred on different days, in different months, and in different places. They do not represent a single episode, but multiple episodes. As such, they must be viewed as multiple offenses, not a single "continuous" offense.

¶ 50. If the concept of continuity expressed in Giwosky and Lomagro can be read to satisfy the unanimity requirement in the case at hand, I, for one, no longer have any sense of the limits of the state constitution's unanimity protection. Could the state have pursued all of the sexual assaults in this case as one count of sexual assault under § 948.02, leaving the jury free to disagree as to whether an assault that occurred in July or one in committed in August is the basis for conviction? Because the individual assaults may be viewed together as a "continuous course of conduct crime" under the reasoning of the majority and Molitor, the State apparently could have pursued such a charge. Did the majority intend such a result? I do not think so. Can the majority reason its way out of those potential consequences? Not without rejecting the rationale of Molitor.

¶ 51. Finally, I note that in lieu of Giwosky and Lomagro to further guide us in defining the limits of the unanimity protection, the majority seems to have also left us with the most curious of constitutional standards. It has seemingly transformed the constitutional inquiry under Article I, Sections 5 and 7 into little more than a circuitous inquiry into legislative intent. Majority op. at ¶¶ 11-12 & ¶ 14. Under the majority's analysis legislative intent is apparently now the be all and end all of the Wisconsin constitution's guarantee of a unanimous jury verdict. Simply put, the majority's analysis directs that if the legislature intended to abrogate jury unanimity, then the state constitution presents no bar to the statutory definition.

¶ 52. In sum, the court of appeals asked us to render a decision in this case to reconcile its prior decision under the state constitution in Molitor with the due process formulation of the Supreme Court in Richardson. My response to the court of appeals is that there can be no reconciliation. The demands of due process, and in particular the risks of unfairness enunciated by the Richardson Court, defeat the constitutionality of § 948.025(2). By engaging in its own due process formulation, however, the majority fails to acknowledge that Richardson is controlling authority and that it requires this result. Not only does the majority depart from the United States Supreme Court to reach an incorrect result, but because it endorses the reasoning of Molitor, the majority leaves our state constitutional unanimity protection in a confused and troublesome condition.

¶ 53. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice WILLIAM A. BABLITCH join this dissenting opinion.

       A11 references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

       The court of appeals stated the question on certification as follows:
      Does State v. Molitor, 210 Wis. 2d 415, 421 — 23, 565 N.W.2d 248 (Ct. App. 1997), holding that a jury need only unanimously agree that three or more sexual assaults constitute a "continuing course of conduct” to support a conviction of repeated sexual assault of a child contrary to WIS. STAT. § 948.025 (1997-98), survive Richardson v. United States, 119 S. Ct. 1707 (1999), holding that a jury must also unanimously agree on the specific violations included in the "continuing course of conduct?"

       Johnson was also charged with second-degree sexual assault for conduct relating to Andrea V. The jury acquitted him on this count.

       Article I, Section 5, Trial by jury; verdict in civil cases, states:
      Section 5. The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law. Provided, however, that the legislature may, from time to time, by statute provide that a valid verdict, in civil cases, may be based on the votes of a specified number of the jury, not less than five-sixths thereof.

       Article I, Section 7, Rights of accused, states:
      Section 7. In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.

       21 U.S.C § 848(c) (1994) says, in pertinent part:
      [A] person is engaged in a continuing criminal enterprise if—

        (1) he violates any provision of [the federal drag laws, i.e.,] this subchapter or subchapter II of this chapter the punishment for which is a felony, and
      (2) such violation is a part of a continuing series of violations of [the federal drug laws, i.e.,] this subchapter or subchapter II of this chapter—
      (A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer [or supervisor or manager] and
      (B) from which such person obtains substantial income or resources.

       "[F]or those portions of the process that were added in more recent times, and therefore lack strong historical traditions, widespread acceptance of a particular practice speaks strongly in favor of its constitutionality." 1 Wayne R. LaFave et al., Criminal Procedure § 2.7(b) (2d ed. 1999).

         See Ariz. Rev. Stat. Ann. § 13-1417 (West 2000); Cal. Penal Code § 288.5 (West 2000); Del. Code Ann. tit. 11, § 778 (2000); Haw. Rev. Stat. Ann. § 707-733.5 (Michie 1999); N.D. Cent. Code § 12.1-20-03.1 (1999).

       As the majority notes, the Richardson Court cited state case law and statutes regarding sexual assault of a child represented as the only area where jury unanimity is avoided by treating individual offenses as a course of conduct crime. However, contrary to the majority's conclusions, that discussion should not be read to support the constitutionality of § 948.025(2). 526 U.S. 813, 821 (1999). The Court noted several mitigating factors that are not applicable to § 948.025(2). First, the Court noted that the federal Constitution does not impose a unanimous jury requirement upon the states. Id. When subject to scrutiny by this court, however, this distinguishing factor is inapplicable. Our state constitution does establish the right to a unanimous jury verdict.

        Second, among the state laws reviewed by the Richardson Court, California's counterpart to § 948.025 was noted as truly exceptional on the ground that it defines the statutory offense in terms of other predicate offenses. Id. (discussing Cal. Penal Code Ann. § 288.5 (West Supp. 1998)). Because § 948.025 also defines the statutory offense with reference to other predicate offenses, it must be viewed in the same light as the California statute: a unique statute singled out by the Supreme Court and on which the Court has not placed its imprimatur.

       Not only do I disagree with the analysis of the Molitor court, but I note that the discussion of the constitutionality of § 948.025(2) was unnecessary to the court of appeals decision in that case. In State v. Molitor, 210 Wis. 2d 415, 565 N.W.2d 248 (Ct. App. 1997), the defendant pled no contest to § 948.025(1). Section 948.025(2), which applies only to cases tried to a jury, was not implicated. Nevertheless, the court of appeals reached out and ruled on the constitutionality of § 948.025(2). Today the majority opinion adopts the analysis of the court of appeals' advisory opinion in Molitor.


author: ANN WALSH BRADLEY, J. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE JON P. WILCOX, J.

text:
    The Wisconsin Conference Board of Trustees of the United Methodist Church, Inc., Plaintiff-Appellant, v. Ronald Culver, Loretta Konrad, Lucille Krentz, Arthur Lamonska, Gordon Trapp, John Does 1 through 20 and Jane Does 1 through 20, Defendants-Respondents-Petitioners.
    Supreme Court

      No. 99-1522.

      Oral argument January 31, 2001.

    Decided May 31, 2001.

    2001 WI 55
    (Also reported in 627 N.W.2d 469.)

      For the defendants-respondents-petitioners there were briefs by Lan Waddell and Waddell & Pavia, Columbus, and oral argument by Lan Waddell.

    For the plaintiff-appellant there was a brief by Jon G. Furlow, Mary C. Turke and Michael Best & Fried-rich, LLP, Madison, and oral argument by Jon G. Furlow.

    An amicus curiae brief was filed by Kevin J. Sjos-trom and Brusky & Sjostrom, S.C., Wauwatosa, on behalf of Katrine L. Anderson, Judy Bell, Ernest Cutting, Alyson Janke, Michael B. Lukens, and Clifton Kirkpatrick as stated clerks of the Presbytery of Northern Waters, the Milwaukee Presbytery, the Twin Cities Area Presbytery and the Synod of Lakes and Prairies, the John Knox Presbytery, the Winnebago Presbytery of the Presbyterian Church (USA), the Presbyterian Church (USA), and the United House of Prayer for all People of the Church on the Rock of the Apostolic Faith.
   ANN WALSH BRADLEY, J.

¶1. This case requires us to address the ownership of church property when a local Methodist church breaks away from the Methodist denomination. The defendants, the trustees of a local church formerly known as the Elo United Methodist Church, seek review of a published decision of the court of appeals reversing the summary judgment determinations of the circuit court. The court of appeals concluded that the plaintiff, the Wisconsin Conference Board of Trustees of the United Methodist Church (Conference), was entitled to the property because the local church's withdrawal from the United Methodist Church (UMC) rendered it a "defunct" or "dissolved" local Methodist church under Wis. Stat. § 187.15(4) (1997-98). Because we agree with the court of appeals' interpretation of the statute and conclude that title to the property at issue vests in the Conference, we affirm the decision of the court of appeals.

¶ 2. We preface our discussion with the following undisputed facts that provide a brief history of the local church, its ties to the Methodist denomination, the local church property, and the events preceding our review.

¶ 3. In the 1840s, a congregation of Methodists formed in the town of Utica in Winnebago County. The group began meeting in members' homes, and by the late 1840s was a recognized Methodist Episcopal church, known as the Elo church. The Elo church was a member church of the Liberty Prairie Circuit, a group of local churches organized by the Wisconsin Conference of the Methodist Episcopal Church. That statewide conference was responsible for appointing a minister to serve the congregations within the circuit.

¶ 4. The property at issue today came to be used by the Elo congregation following an 1860 conveyance. An 1860 deed documents the transfer of ten acres of land in the town of Utica from Isaac and Abigal Corliss to the "Trustees of the Methodist Episcopal Church of the Liberty Circuit Wisconsin Conference." The trustees purchased the property for $400, and it was deeded to the trustees "in Trust for the Methodist Episcopal Church."

¶ 5. Subsequent to the conveyance, the Elo congregation built a church upon the land. The church was eventually called the Elo Methodist Church. Sometime later, a parsonage was erected to house the acting minister.

¶ 6. The Elo Methodist Church continued as a Methodist Episcopal church well into the twentieth century. It maintained its affiliation with organized Methodism through successive mergers between the Methodist Episcopal Church and other Methodist branches. In 1939 the Methodist Episcopal Church merged with other Methodist denominations to become the Methodist Church. Another merger in 1968 created the United Methodist Church.

¶ 7. The UMC is organized in a hierarchical fashion. The Conference is its state-level organizational body. The relationship among the national, regional, and local levels of the denomination is governed by the Book of Discipline of the United Methodist Church, which sets forth the doctrinal law of the denomination.

¶ 8. In 1970 members of the Elo church filed a certificate of incorporation organizing itself as a "religious society of the Wisconsin Conference of the United Methodist Church." Under its certificate of incorporation, the Elo church became the Elo United Methodist Church, a duly incorporated religious society under Wis. Stat. § 187.01.

¶ 9. The Elo church continued its affiliation with the UMC until 1997. In that year, a dispute arose between the congregation and the UMC over certain doctrinal matters. On June 25, 1997, the Elo church passed, by a near-unanimous vote of the congregation, the following resolution withdrawing from the UMC:

1. Whereas: The United Methodist Conference has acted to create a major doctrinal change and, in spite of an attempt to change that position through existing procedures, has reaffirmed its position on those matters
and
2. Whereas: We, as a "Christian Bible based" congregation cannot reconcile their actions with the "Scripture" as we understand it:
Therefore
We, as a Christian Church, hereby disavow ourselves from the United Methodist Conference and do rescind any and all relationships with said Conference, thereby declaring ourselves as a non-affiliated and independent Christian Church, effective as of this date, June 25,1997.

¶ 10. Thereafter, the Elo church changed its name to the Elo Evangelical Church. The church continued to operate as an independent, nondenominational congregation. The congregation removed all UMC insignia and signage on the church property and also refused to continue the financial arrangements it had previously maintained with the UMC, including its share of support for the minister appointed to serve the church and who was housed in the Elo parsonage.

¶ 11. After a period of fruitless attempts at reconciliation with the Elo congregation, the Conference responded to the Elo church's withdrawal from the UMC in December 1998. It resolved that the property held by the Elo church had been "abandoned" under church rules by virtue of the Elo church's disaffiliation. Under the provisions of the Book of Discipline, the Conference concluded that it was to assume control of the local church property.

¶ 12. By authorization of the resolution, the Conference filed suit against the Elo trustees individually in February 1999, seeking declaratory and injunctive relief. Its primary contention was that under Wis. Stat. § 187.15(4), the Elo church had become defunct or dissolved, thus entitling the Conference to all property held by the Elo church.

¶ 13. The Elo trustees responded by moving to dismiss the complaint. In addition to claiming that the circuit court lacked the subject matter jurisdiction to resolve this internal church dispute, the Elo trustees claimed that the requirements of § 187.15(4) had not been met. They maintained that because the Elo congregation continued to exist, it could not constitute a "defunct" or "dissolved" church within the dictionary definitions of those terms. The Conference responded with a summary judgment motion claiming that it was entitled to a judgment in its favor because there was no disputed issue of fact that the Elo congregation's resolution to disaffiliate rendered it defunct or dissolved under § 187.15(4).

¶ 14. The circuit court heard both motions together. After examining numerous affidavits and documents submitted with the motion for summary judgment, including the 1860 deed, the circuit court concluded that title to the property was held by the Elo trustees and that § 187.15 is triggered only if the local congregation ceased functioning and abandoned the property. Accordingly, the court entered a judgment dismissing the Conference's complaint.

* ¶ 15. The Conference appealed and the court of appeals reversed. After explaining that its resolution of an intra-church property dispute is restricted by the First Amendment to a consideration of neutral principles of law, the court of appeals interpreted and applied § 187.15(4). Wisconsin Conf. Bd. of Trs. of the United Methodist Church, Inc. vs. Culver, 2000 WI App 132, ¶¶ 13-17, 237 Wis. 2d 343, 614 N.W.2d 523. It concluded that Elo church's disavowal of all ties to the UMC rendered it defunct or dissolved under the statute. Id. at ¶ 29. The court explained: "We cannot imagine a clearer statement and demonstration of Elo's intent to dissolve its ties with the UMC. . . .While Elo continues to endure, the dissolution of its relationship with the UMC rendered it defunct as a local church of the UMC." Id.

H

¶ 16. This case requires us to decide competing motions for summary judgment. While the circuit court resolved this case by granting the Elo trustees' motion to dismiss and denying the Conference's motion for summary judgment, the circuit court considered matters outside the pleadings in deciding the motion to dismiss. We thus treat the motion as one for summary judgment and the circuit court's judgment as one entered upon the grant of that motion. See Wis. Stat. § 802.06(3); Schwab v. Timmons, 224 Wis. 2d 27, 35, 589 N.W.2d 1 (1999).

¶ 17. We review a motion for summary judgment using the same methodology as employed by the circuit court. Stelpflug v. Town of Waukesha, 2000 WI 81, ¶ 17, 236 Wis. 2d 275, 612 N.W.2d 700. Summary judgment is granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2); Stelpflug, 2000 WI 81 at ¶ 17.

¶ 18. Ultimately, we conclude that resolution of the competing motions for summary judgment is a matter of interpretation and application of § 187.15(4). We must determine whether the local church's withdrawal from the UMC rendered it a defunct or dissolved local Methodist church under that statute. Such a question of statutory interpretation is a question of law that we review independently of the determinations rendered by the circuit court and the court of appeals. Stockbridge Sch. Dist. v. Dep't of Pub. Instruction Boundary Appeal Bd., 202 Wis. 2d 214, 219, 550 N.W.2d 96 (1996).

r — I HH

¶ 19. We begin our discussion by addressing the appropriate constitutional framework for our analysis. This court has not been asked to resolve a church property dispute in many years. However, in recent decades many courts have wrestled with the appropriate means of resolving property disputes between churches and among competing factions within a church under the Establishment Clause of the First Amendment to the United States Constitution. The Establishment Clause, as applied to the states through the Fourteenth Amendment, prohibits states from making any law "respecting [the] establishment of religion." U.S. Const, amend. I. The United States Supreme Court has visited the question on several occasions and has outlined constitutional means of judicial resolution of church property disputes.

¶ 20. In exploring the Establishment Clause limitations on judicial resolution of disputes over church property, the Supreme Court has explained that civil courts may resolve such disputes, provided that they do not entangle themselves in the business of "establishing" churches by deciding matters of doctrine and practice. Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 449 (1969). Thus, the foremost limitation imposed by the First Amendment is that we refrain from resolving doctrinal disputes. Jones v. Wolf, 443 U.S. 595, 602 (1979). Should we be faced with a dispute that hinges on an issue of religious doctrine or polity, we must defer to the resolution of the highest authority of a hierarchical church organization. Id.

¶ 21. We address church property disputes under the neutral principles of law approach outlined by the Supreme Court in Jones v. Wolf. Under this approach, we may base our determination upon any number of neutral legal principles, including "the language of the deeds, the terms of the local church charters, the state statutes governing the holding of church property, and the provisions in the constitution of the general church concerning the ownership and control of church property." 443 U.S. at 603. Adherence to neutral principles will avoid an entanglement with religion that would run afoul of the Establishment Clause.

¶ 22. In the case at hand we resolve the church property dispute by resort to a state statute governing the holding of church property. In a concurrence often cited in church property dispute cases, Justice William Brennan set forth various constitutional approaches that states may employ to resolve church property disputes, including "special statutes governing church property arrangements in a manner that precludes state interference in doctrine." Maryland and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 370 (1970) (Brennan, J., concurring). The statute before us, Wis. Stat. § 187.15, is such a statute.

¶ 23. In this case, we are not concerned with the intra-church dispute that fueled the Elo congregation's. departure. Moreover, we have not been invited to determine whether the Elo church has abandoned the UMC by a departure from doctrine. Nor would we accept such an invitation, as such considerations are anathema under the Constitution. Presbyterian Church, 393 U.S. at 449-50. Rather than deal in such constitutionally impermissible shades of gray, today's case presents us with the Elo church's unequivocal resolution to withdraw from the Conference and the UMC.

¶ 24. Because § 187.15 governs the church property arrangement in the dispute before us and because we need only interpret and apply the terms of the statute in wholly legal and secular terms, we do not wade into doctrinal waters with today's decision. The question before us is whether the Elo church's disaffiliation renders it a defunct or dissolved local Methodist church within the meaning of § 187.15(4). We now turn to that question.

hH hH hH

¶ 25. This case began as an action under § 187.15(4) and was presented to the circuit court and court of appeals as a question of interpretation and application of that statute. While the parties spent much of their briefs and oral argument addressing trust law principles, the terms of the UMC Book of Discipline, and the language of the 1860 deed, we believe the crux of the dispute between the parties and the determinative issue in resolving the parties' competing motions for summary judgment is the meaning of "defunct" and "dissolved" under § 187.15(4).

¶ 26. Our sole purpose when interpreting a statute is to discern the intent of the legislature. Stockbridge Sch. Dist., 202 Wis. 2d at 219. When doing so, we begin with the statutory language. Id. If the language of the statute fails to clearly convey the legislature's intent, we will resort to extrinsic aids. Id. Courts should resolve statutory ambiguities so as to advance the legislature's basic purpose in enacting the legislation. UFE, Inc. v. LIRC, 201 Wis. 2d 274, 288, 548 N.W.2d 57 (1996).

¶ 27. The statutory provision that we must interpret, § 187.15(4), reads:

Whenever any local Methodist church or society shall become defunct or be dissolved the rights, privileges and title to the property thereof, both real and personal, shall vest in the annual conference and be administered according to the rules and discipline of said church.

This provision was created by the legislature in 1923. § 3, ch. 158, Laws of 1923. While § 187.15 has been in existence for over three-quarters of a century, neither this court nor the court of appeals has been asked to interpret or apply the statute prior to the present case.

¶ 28. Both parties contend that the plain language of the statute as applied to the facts of this case warrants a decision in their favor. On the one hand, offering several dictionary definitions, the Elo trustees maintain that the words "defunct" and "dissolved" unambiguously require that the Elo church must "cease to exist" or be "dead" or "extinct" to trigger the statute. They advance what they term an "empty church" definition and contend that as long as the church exists as a practicing congregation it cannot be considered defunct or dissolved, regardless of its denominational affiliation.

¶ 29. The Conference, on the other hand, accepts the Elo trustees' plain language reading of defunct and dissolved but argues that we must read that phrase with reference to the phrase "local Methodist church or society." Under the Conference's plain language reading of the statute, because the Elo church ceases to exist as a local Methodist church or society, it is defunct or dissolved. The court of appeals interpreted the statute in this manner.

¶ 30. We are persuaded by the Conference's and the court of appeals' interpretation of the statute. The words "defunct" or "dissolved" cannot be read in isolation. They are modified by the term "local Methodist church or society." The existence of the local Methodist church or society is defined by its denominational affiliation, not solely by its continuation as an active congregation. The cessation of ties to the UMC and the statewide conference renders a local Methodist church or society defunct or dissolved under the statute.

¶ 31. This reading of the statute recognizes the overall purpose of the statute. The statute is designed as a whole to accommodate the Methodist organizational structure and its system of property management. The United Methodist Church is .organized in a hierarchical fashion and manages its property through a system of trusts. This organizational structure was explained by another court addressing a similar dispute over UMC property:

In the hierarchical type of church the local congregation is an organic part of a larger church body and is subject to its laws, procedures, and organs according to an ascending order of authority. It does not enjoy local autonomy. Its doctrine is defined by that of the parent body and its property, while peculiarly a matter of local enjoyment, is held for uses consistent with the written rules, doctrines and practices of the denominational parent church.

Brady v. Reiner, 198 S.E.2d 812, 827 (W. Va. 1973).

¶ 32. Section 187.15 recognizes these features of organized Methodism and codifies the manner in which the UMC maintains control over local church property. It does so by organizing the property arrangement among three levels of the church hierarchy: the denominational church (UMC), the Conference, and the local church. Under the statute, the trust provisions operate to protect the UMC's property interest in property held by a local Methodist church. § 187.15(1) & (3). In the absence of such a local Methodist church, however, the statute requires that the Conference take title and hold the property in trust for the UMC. § 187.15(4). Thus, the statute envisions that the Conference will fill the shoes of the local trustees to continue to hold the property in trust for the UMC. Were we to read the statute to allow the property to be removed from this arrangement and be held by a group that has severed afi ties to the UMC, we would frustrate the statute's purpose.

¶ 33. The Elo trustees argue this reading of the statute ignores other provisions of chapter 187 employing "defunct" and "dissolved" and defining "defunct" in a manner consistent with its "empty church" interpretation. They contend that we must read § 187.15(4) in pari materia with § 187.10(9) and § 187.11, which provide that a local church is deemed defunct when "it shall have ceased to maintain at least one regular service per month for a period of two years." Wis. Stat. § 187.10(9) (Congregational church) and § 187.11 (Church of Christ); see also § 187.08. Such provisions lend credence to the trustees' interpretation. However, we note that neither § 187.10(9) nor § 187.11 provide any guidance in defining "dissolved." Additionally, we do not believe the time limitations in those statutes require that the term "defunct" be exclusively defined as abandonment of the property for a lengthy period of time.

¶ 34. Turning to the facts of this case, there is no disputed issue of fact as to whether the Elo church is a defunct or dissolved local Methodist church under our construction of the statute. It is not disputed that the Elo church was formerly a local Methodist church. It is also beyond question that the Elo congregation severed all ties to the UMC and the Conference. Because these matters are beyond dispute, summary judgment should properly be granted in favor of the Conference.

¶ 35. We reiterate that it is the Elo church's unequivocal withdrawal from the UMC that allows us to apply the statute to the facts of this case. In the absence of such a clear severance of relations by the local church, we do not believe § 187.15(4) would be the appropriate means of resolving the property dispute. As the court of appeals explained, the statute is not "designed to resolve schisms between local churches and the UMC." Wisconsin Conf. Bd. of Trs. of the United Methodist Church, Inc., 2000 WI App 132 at ¶ 30. It is, however, designed to dictate the resolution of property rights where there has been a total dissolution of the relationship between the local church and the UMC by the local church as evidenced in the incontrovertible fashion presented in this case.

IV

¶ 36. We next briefly turn to the constitutional issues that the Elo trustees have interjected into the parties' debate. In seeking the review of this court, the Elo trustees have for the first time raised questions of the constitutionality of the statute. The arguments presented are not facial challenges to the statute. Rather, they raise these arguments under the mantle of statutory construction, arguing that we must construe the statute to avoid the constitutional problems that they propose are created by our construction of the statute.

¶ 37. The Elo trustees generally argue that the interpretation of § 187.15(4) we adopt today renders the statute "coercive," "confiscatory," and "preferential." They identify, but do not develop, numerous constitutional challenges, concluding the statutory interpretation results in a deprivation of property without due process because of the statute's alleged retroactivity and that it constitutes an unconstitutional taking and an impermissible "preference by law" to the UMC in violation of Article I, Section 18 of the Wisconsin Constitution. They also propose that the construction raises "substantial objections" under the First Amendment.

¶ 38. None of these constitutional arguments is presented in depth. They are referenced in a few paragraphs and are conclusory in nature. The arguments do little more than allege that the construction of the statute violates the provisions at issue. We need not address arguments presented in this fashion. See Block v. Gomez, 201 Wis. 2d 795, 811, 549 N.W.2d 783 (Ct. App. 1996) (refusing to address amorphous and insufficiently developed arguments). As our court of appeals has explained:

Constitutional claims are very complicated from an analytic perspective, both to brief and to decide. A one or two paragraph statement that raises the specter of such claims is insufficient to constitute a valid appeal of these constitutional issues to this court. For us to address undeveloped constitutional claims, we would have to analyze them, develop them, and then decide them. We cannot serve as both advocate and court. For this reason, we generally choose not to decide issues that are not adequately developed by the parties in their briefs.

Cemetery Servs., Inc. v. Dep't of Reg. & Licens., 221 Wis. 2d 817, 831, 586 N.W.2d 191 (Ct. App. 1998). Similarly, we cannot allow parties to simply raise the specter of a constitutional violation through insufficiently developed arguments in order to garner an interpretation of a statute in their favor.

V

¶ 39. Even if we were to address these undeveloped constitutional arguments as applied to our statutory construction and interpret the statute as advanced by the Elo trustees, the trustees still would not be entitled to the property under other neutral principles of law recognized in Jones v. Wolf. While this case was presented below as solely a matter of statutory law, the parties have gone to some lengths to address their rights under the neutral principles of trust law and the 1860 deed. The record is sufficiently developed to allow us to address the parties' rights to the property under the principles they debate. We agree with the conclusion of the court of appeals that the UMC has a beneficial interest in the property. Wisconsin Conf. Bd. of Trs. of the United Methodist Church, Inc., 2000 WI App 132 at ¶ 23 n.7. Thus, even in the absence of § 187.15(4), the trustees are not entitled to retain the property for whatever purposes they see fit without regard to the interests of the Conference and the UMC.

¶ 40. The 1860 deed created an express trust for the benefit of the UMC, and the property at issue in this case has been held in trust for the Methodist denomination since its original conveyance. The deed provides that the property was conveyed to the original local trustees "in Trust for the Methodist Episcopal Church." While the Elo trustees maintain that this created a trust for the local church, we find such a reading unreasonable. The local church is not mentioned in the deed. The property was deeded to the trustees of the Liberty Prairie Circuit and the property was to be held in trust for the denomination, the Methodist Episcopal Church. As a result of the successive denominational mergers, the United Methodist Church is the successor in interest to the Methodist Episcopal Church's beneficial interest in the trust.

¶ 41. The Elo trustees rely on a provision of the Book of Discipline that establishes that local Methodist churches were not required to "alienate or change the title to property contained in its deed or deeds" as a result of the 1968 merger that created the UMC. They assert that this "deed-saving" language prevents the conversion of their local church property to trust property. The trustees' argument presupposes that the original deed conveyed to them an interest in the property greater than that of a trusteeship for the benefit of the denomination. As we have explained, however, a beneficial interest for the denomination was created by the deed when the property was originally conveyed. There was no change in the Elo trustees' property interest as a result of the 1968 merger. The local church trustees continued to hold the entrusted property for the benefit of the denomination.

¶ 42. Because the property is burdened with this trust, under which the property at issue is held for the benefit of the UMC, it is beyond the powers of the Elo trustees to disassociate the property from the UMC. We explained long ago in a similar church dispute that ordinary trust principles prevent the diversion of property in the manner attempted by the Elo trustees:

A religious corporation holding property charged with a trust for certain purposes can no more divert it to other and inconsistent uses, even by due corporate actions, than can any other trustee.

Cape v. Plymouth Congregational Church, 130 Wis. 174, 179-80, 109 N.W. 928 (1906).

¶ 43. This is in accord with the rule of other states that have addressed the attempted removal of entrusted property by a local congregation that secedes from a hierarchical church. The general rule in this regard has been expressed as follows:

[Ajlthough the members of a local church may secede from a hierarchical system, they cannot secede and take the church property with them.

New York Annual Conf. of the United Methodist Church v. Fisher, 438 A.2d 62, 70 (Conn. 1980) (citing cases).

¶ 44. In sum, we conclude that as a consequence of the Elo congregation's unequivocal withdrawal from the UMC and the Conference, the Elo church was rendered a defunct or dissolved local Methodist church within the meaning of Wis. Stat. § 187.15(4). By operation of that statutory provision title to the property at issue vests in the Conference, and summary judgment must be granted in its favor. Accordingly, we affirm the decision of the court of appeals, reversing and remanding this matter to the circuit court.

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

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 45. (dissenting). Today's decision rests upon a reasonable interpretation of Wis. Stat. § 187.15, governing the disposal of Methodist church property. I agree with the majority opinion that the application of the statute represents neither an unconstitutional taking nor an impermissible preference for church hierarchy, the bases on which the Elo trustees ground their appeal. Nevertheless, I would remand the case for resolution of this property dispute on non-statutory grounds.

( — i

¶ 46. As the majority opinion concludes, the 1860 deed creates a trust in favor of the Methodist Episcopal Church. Whether the United Methodist Church (UMC) is the successor in interest to the trust in favor of the Methodist Episcopal Church appears to be a disputed question of fact at this summary judgment stage, contrary to the majority's conclusion.

¶ 47. The Elo trustees rely on the Book of Discipline of the United Methodist Church, which states as follows:

Nothing in the Plan of Union at any time after the union is to be construed so as to require any local church or any other property owner of the former The Evangelical United Brethren Church or the former The Methodist Church to alienate or in any way to change the title to property contained in its deed or deeds at the time of union.

They further allege that the UMC requested, and was denied, a new deed following the 1968 merger. According to the Elo trustees, the UMC's conduct indicates that it did not have a beneficial interest in the property.

¶ 48. Because this case comes to us on review of the UMC's motion for summary judgment, this court must draw all reasonable inferences in favor of the non-moving party, the Elo trustees. I conclude that the Elo trustees have succeeded in raising a reasonable inference that the UMC did not automatically become the successor in interest to the Methodist Episcopal Church under the 1860 deed. The majority's reliance on the first paragraph of the Book of Discipline, the meaning and relevance of which have not been briefed, does not convince me otherwise.

¶ 49. Because a disputed issue of material fact exists regarding the UMC's right to property held in trust for the Methodist Episcopal Church, I would remand the case to the circuit court for resolution of this issue. If the case for resolution on trust principles is as strong as the majority contends, remand would impose but a small burden on the parties and the circuit court. Moreover, a resolution of this property dispute on the basis of trust principles involves no risk of entanglement in church doctrine.

¶ 50. I am concerned that Wis. Stat. § 187.15 may be unconstitutional. Admittedly, the Elo trustees never raised this argument, and their failure to challenge the existence (as opposed to the UMC's interpretation) of Wis. Stat. § 187.15 can be construed as waiver. Because the issue was not briefed, I do not write to decide this issue. I do, however, express a question about the constitutionality of Wis. Stat. § 187.15.

¶ 51. Chapter 187 is a patchwork of statutes governing religious property, some directed toward specific religious denominations, others directed toward religious societies generally. While Methodist church property is governed by Wis. Stat. § 187.15, the church property of religious societies that do not have the benefit of a specific statute is governed by other provisions of Chapter 187, including Wis. Stat. § 187.08.

¶ 52. The differences between Wis. Stat. §§ 187.15 and 187.08 should give this court pause about resolving this dispute by using a statute that applies specifically to Methodist church property, when other religious societies cannot avail themselves of a similar statutory remedy. I wonder whether Justice Brennan's call for "special statutes governing church property arrangements" envisioned a statutory scheme that singles out individual religions and leads to varied results in church property disputes.

¶ 53. The majority opinion further suggests that Wis. Stat. § 187.15 "codifies the manner in which the UMC maintains control over local church property." This proposition may well be correct, but if the statute merely codifies the church's system of property management, this case can be resolved without resort to the statute.

¶ 54. For the reasons set forth, I dissent.

JON P. WILCOX, J.

¶ 55. (dissenting). I concur with Chief Justice Abrahamson's dissent; I agree that Wis. Stat. § 187.15 (1997-98) is problematic. I write separately only to emphasize that this dispute should be remanded to be resolved on the terms of the deed.

¶ 56. Although the majority characterizes the record as "sufficiently developed to allow us to address the parties' rights to the property," I disagree. Majority op. at ¶ 39. While the United Methodist Church (UMC) may or may not have a "beneficial interest" in the property, if such an interest does exist, it is unclear as to its nature and extent. Id. The deed states that the property is to be held:

in Trust for the Methodist Episcopal Church.. .upon the express condition and understanding that should the Wisconsin Conference of the Methodist-Episcopal Church neglect to send a minister to said Liberty-Prairie Circuit or should the Methodist Episcopal Church of the Liberty-Prairie Circuit become extinct or cease to exist from any cause or should a majority of the members of said church in said Circuit leave in consequence of nonaction or unrightous [sic] action on the subject if having by the general conference of the Methodist Episcopal Church then by a vote of two-thirds of the subscribers to a certain subscription paper bearing date the first day of March, Eighteen hundred Sixty....

In nay view, this language qualifies any beneficial interest that the UMC may have. It indicates that the grantor envisioned that a dispute could arise between the local church [Elo] and the hierarchical church [UMC] and created a contingency for such a scenario. Nevertheless, the language of the deed may very well be deemed ambiguous, requiring extrinsic evidence to discern the intent of the grantor. See Edlin v. Soderstrom, 83 Wis. 2d 58, 69, 264 N.W.2d 275 (1978) ("The construction of the deed is a matter of law unless there is an ambiguity requiring words or terms to be construed by extrinsic evidence, in which event the question becomes one of fact."). If the language of the deed is judged ambiguous, the record is clearly incomplete to resolve this dispute. The majority opinion implies as much by stating "[a]s far as we know, none of the contingencies described in the deed was encountered, and the record contains no indication of a two-thirds vote of the original donors." Majority op. at ¶ 4 n.3. The record is insufficiently developed to determine if any of the contingencies in the deed are met and there is no indication of a two-thirds vote of possible successors to the "subscribers" because the circuit court ruled in favor of the UMC on summary judgment.

¶ 57. Accordingly, this case should be remanded to determine whether the UMC has a beneficial interest and the nature and extent of any such beneficial interest in accordance with the neutral principles doctrine espoused in Jones v. Wolf, 443 U.S. 595, 603 (1979). The circuit court can determine whether the UMC is entitled to the property by first looking to the deed. If the circuit deems the language in the deed is ambiguous, it can then look to extrinsic evidence. Thus, I agree with Chief Justice Abrahamson that this case can be resolved without resorting to § 187.15.

¶ 58. For the reasons set forth above, I respectfully dissent.

        Wisconsin Conf. Bd. of Trs. of the United Methodist Church, Inc. v. Culver, 2000 WI App 132, 237 Wis. 2d 343, 614 N.W.2d 523 (reversing judgment of the Circuit Court for Winnebago County, William H. Carver, Judge).

       All subsequent references to the Wisconsin Statutes are to the 1997-98 volumes unless otherwise indicated.

       The deed conveying the property and creating the trust also provided for the disposition of the property under certain conditions. Under the deed, the trustees could dispose of the property upon the failure of the statewide conference to provide a minister, the cessation or extinction of the Methodist Episcopal Church of the Liberty Prairie Circuit, or a departure of a majority of the members as a result of "nonaction or unrightous [sic] action." Should any of these occur, the deed provided that a two-thirds vote of those who donated the money to purchase the land would allow the trustees to sell the property and distribute the proceeds among the subscribers or to donate or hold in trust the property for another "Evangelical Church."
      As far as we know, none of the contingencies described in the deed was encountered, and the record contains no indication of a two-thirds vote of the original donors.

       We note that after this lawsuit was filed the congregation changed its name again to the Elo Evangelical Methodist Church. They admittedly did this to avoid application of § 187.15(4) and have not reestablished an affiliation with the UMC. Elo does not advance this fact in support of its position.

       Although the Conference sued for a declaration of rights as to both the real and personal property held by the Elo trustees, this case has evolved into one solely about the real property in the local church's possession. The court of appeals did not address any personal property. Moreover, the Conference has shifted its focus to the real property to such a great extent that it opens its brief to this court by referencing only the real estate. At no point does it request an award of personal property. Our decision today is thus limited to the real property in question. Additionally, the Conference pursued an action in trespass. That claim is not before us.

       The last occasion was in 1940. See Kerler v. Evangelical Emmanuel's Church, 235 Wis. 209, 292 N.W. 887 (1940).

       The religion clauses of the First Amendment, the Establishment and Free Exercise Clauses, read in their entirety: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. They were made applicable to the states in Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

       A recognized alternative to the neutral principles approach described in Jones v. Wolf, 443 U.S. 595 (1979), is deference to the highest church authority in a hierarchical church in resolving church property disputes. See Maryland

        and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 368-69 (1970) (Brennan, J., concurring); Watson v. Jones, 80 U.S. 679, 727 (1871). However, rather than defer to the church hierarchy on secular and legal matters that we are fully capable of resolving under neutral principles of law, we choose, consistent with the constitutional directives of the Supreme Court, to defer to church hierarchy only when the question before us involves matters of doctrine or church polity. See Jones, 443 U.S. at 602. While the Conference suggests that some form of deference is due to its internal determinations in this case, we conclude that because resolution of this case does not require an inquiry into doctrine or polity, deference is unnecessary.
      The Elo trustees suggest that we should adopt an approach that would give effect to the will of the majority of the congregation. While the Supreme Court has suggested that a rule of presumptive majority representation is compatible with a neutral principles approach, id. at 607 — 08, deference to the majority is a concept appropriate for a case involving a church with a congregational, rather than a hierarchical, polity. See Maryland and Virginia Eldership of the Churches of God, 396 U.S. at 368-69 (Brennan, J., concurring); Watson, 80 U.S. at 724-25.

       Although the Conference's complaint referenced the Book of Discipline in a manner suggesting that it was an alternative theory under which it was proceeding, its summary judgment motion was based on its claimed right to the property under the § 187.15(4).

       Wisconsin Stat. § 187.15 had numerous predecessors controlling the incorporation of Methodist societies; however, none of them contained a provision similar to subsection (4) that provided for the passage of property from a defunct or dissolved local church to the statewide conference. See Wis. Stat. § 187.15(5) (listing prior Methodist incorporation statutes). The first state law concerning the incorporation of Methodist churches and the trust relationship between the local church and the denomination was passed in 1849. Ch. 89, Laws of 1849.
      The provision at issue has been amended only once. In 1939, the language of the statute was changed to reflect the 1939 denominational merger. See ch. 403, Laws of 1939.

       The West Virginia court also concisely explained the other common type of church polity, the congregational polity: "The congregational polity, by contrast to the hierarchical, features local congregational autonomy as its central characteristic. It is premised on the idea that the local congregation is the highest authority in all matters of doctrine and usage." Brady v. Reiner, 198 S.E.2d 812, 827 (W. Va. 1973).

       The trustees essentially contend that a law enacted in 1923 cannot be retroactively applied to property deeded in 1860. This argument ignores both the 1970 incorporation, by which the Elo church voluntarily became subject to chapter 187, and Wis. Stat. § 187.02, under which churches are "grandfathered" under the law in existence at the time of their creation, unless they affirmatively choose, by the act of incorporation, to become subject to chapter 187.

       The language creating the trust is consistent with the language of the law controlling Methodist Episcopal corporations at the time of the conveyance. See ch. 89, Laws of 1849. That legislation addressed property held "in trust for the Methodist Episcopal Church," referring to the denominational church. Id.

       See, e.g., Book of Discipline of the United Methodist Church ¶ 1 (1996) ("The united Church, as thus constituted, is, and shall be, the successor of the two uniting churches.").

         Book of Discipline of the United Methodist Church ¶ 6 (1996).

       At oral argument, the Elo trustees emphasized their refusal to honor the request for a trust deed made by the UMC in the late 1960s. Because we conclude that the property was held in trust since its original conveyance in 1860 and thus already held in trust for the UMC at the time of this request for a trust deed, we find no significance in the local church's refusal to proffer a new trust deed.

        See majority op. at ¶ 40.

         See majority op. at ¶ 40.

         Book of Discipline of the United Methodist Church, ¶ 6 (1996).

         See Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, ¶ 56, 236 Wis. 2d 435, 613 N.W.2d 142.

        See majority op. at ¶ 22.

       See majority op. at ¶ 32.

       It is undisputed that the UMC requested a trust deed for the property in 1968 when The Methodist Church merged with the Evangelical United Brethren to create the UMC and Elo refused the UMC's request. Wisconsin Conf. Bd. Of Trs. of the

        United Methodist Church, Inc. v. Culver, 2000 WI App 132, ¶ 5, 237 Wis. 2d 343, 614 N.W.2d 523. Such a request is inconsistent with unequivocal ownership of a beneficial interest as the majority portrays. Majority op. at ¶ 39.