author: WEDEMEYER, P.J.

text:
    Michael E. McMorrow, Petitioner-Respondent, v. State Superintendent of Public Instruction, John T. Benson, Respondent-Appellant.
    Court of Appeals

      No. 99-1288.

      Submitted on briefs June 5, 2000.

    Decided July 25, 2000.

    2000 WI App 173
    (Also reported in 617 N.W.2d 247.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of James E. Doyle, attorney-general and Stephen J. Nicks, assistant attorney general.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Michael E. McMorrow of Mequon.
    Before Wedemeyer, P.J., Schudson and Curley, JJ.
   WEDEMEYER, P.J.

¶ 1. The State appeals from a circuit court order reversing the decision of the State Superintendent of Public Instruction (SSPI) which, in turn, affirmed the Whitefish Bay School District's decision denying Jordan McMorrow's application for enrollment at Whitefish Bay High School under the "open enrollment" law contained in Wis. Stat. § 118.51 (1997-98). The State contends that the circuit court erred when it reversed the District's decision denying McMorrow's application for enrollment. The State argues that the District's decision was supported by substantial credible evidence and, therefore, the circuit court should have affirmed the District's decision. Because the District's decision was arbitrary and capricious, we affirm the circuit court's order.

I. BACKGROUND

¶ 2. This case involves the newly enacted "open enrollment" law codified in WlS. STAT. § 118.51. The open enrollment law provides students with the opportunity to attend any public school of their choice, even if the student resides in a different school district. See Wis. Stat. § 118.51(2). If a student wishes to attend a public school in a nonresident school district pursuant to § 118.51(3), the student must follow the application procedures contained in that subsection. See id.

¶ 3. McMorrow resided in Whitefish Bay from the date of his birth until August 1996, when he moved to Mequon. He attended Richards Elementary School in Whitefish Bay and ultimately graduated from Whitefish Bay Middle School in 1996. After moving to Mequon, McMorrow's resident school was Homestead High School, which he attended for his freshman and sophomore years. During his sophomore year, McMor-row decided to take advantage of the open enrollment law, with the intent to finish his high school education at Whitefish Bay High School. Accordingly, by application dated February 14, 1998, he applied to transfer from the Thiensville-Mequon School District to the Whitefish Bay School District pursuant to Wis. Stat. § 118.51 to attend grade 11.

¶ 4. On April 8, 1998, the Whitefish Bay School District denied the application. The stated reason for the denial was: "Priority is given to students who apply through the Chapter 220 Transfer Agreement. More students applied through the Chapter 220 Transfer Agreement than we have seats available at this grade level." McMorrow appealed the District's decision to the SSPI by letter dated May 1, 1998. The SSPI affirmed the decision of the District, but for different reasons. The SSPI conceded that the reason stated by the District denying McMorrow's application was invalid; that is, Chapter 220 was irrelevant to processing McMorrow's open enrollment application. The SSPI noted:' "It is important for districts to distinguish between Chapter 220 and Open Enrollment. Chapter 220 and Open Enrollment are based on two separate principles. ... A district may not merely rely upon the Chapter 220 detérmination when making its Open Enrollment determination."

¶ 5. Despite what the SSPI's decision termed the District's "misplaced reliance on the Chapter 220 waiting list," the SSPI found that, in essence, the District's decision was supported by substantial evidence based on lack of class space. In this decision, the SSPI also distinguished the District's admission of the three other open enrollment applicants from the District's denial of McMorrow's, reasoning that these three students were entitled to preference under the open enrollment law because each was a continuing student. The SSPI therefore concluded that the District's decision denying McMorrow's application for open enrollment was not arbitrary or unreasonable.

¶ 6. McMorrow appealed the SSPI's decision to the circuit court. The circuit court reversed the SSPI's decision, concluding:

The decision to accept the three students who wished to continue at Whitefish Bay High School in the 11th grade was not a decision based on a priority to an available space. It was a decision to accept them even though space was not available. Once this was done, the District's reliance upon the class size guidelines to deny Jordan McMorrow enrollment becomes arbitrary.

The State now appeals the circuit court's order reversing the SSPI's decision.

II. DISCUSSION

A. Standard of Review.

¶ 7. We review the agency's decision, not that of the circuit court. See Madison Metro. Sch. Dist. v. DPI, 199 Wis. 2d 1, 8, 543 N.W.2d 843 (Ct. App. 1995). However, our review is identical to that of the circuit court. See id. The issue in this case involves the application of Wis. Stat. § 118.51, which presents a question of law. See Thompson v. DPI, 197 Wis. 2d 688, 697, 541 N.W.2d 182 (Ct. App. 1995). In reviewing questions of law arising from administrative proceedings, appellate courts apply three levels of deference: (1) "great weight" deference will apply when the "agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute . . (2) "due weight" deference will apply when "the decision is very nearly one of first impression[ ]"; and (3) "de novo" review will apply when "the case is one of first impression for the agency and the agency lacks special expertise or experience in determining the question presented." Id. at 697 (citations omitted). Here, the issue involves interpretation of a newly enacted statute, with which the SSPI has had some, but certainly not extensive, experience. Accordingly, we conclude that "due weight" deference is the proper level of review.

¶ 8. Further, we are not to substitute our judgment for that of the agency as to the weight of the evidence as to any disputed finding of fact. Wis. Stat. § 227.57(6). We will not set aside the agency's findings if the findings are supported by substantial evidence. See Kenosha Teachers Union v. WERC, 39 Wis. 2d 196, 204, 158 N.W.2d 914 (1968).

¶ 9. In addition, resolution of this case depends on the interpretation and application of statutory provisions. "When interpreting a statute, we must ascertain and give effect to the intent of the legislature." Beard v. Lee Enterprises, Inc., 225 Wis. 2d 1, 10, 591 N.W. 2d 156 (1999). In order to determine the legislative intent, we look first at the language of the statute. See id. If the language is clear and unambiguous, we apply the plain meaning of the language and do not look to other sources to ascertain its meaning. See id.

B. The SSPI's Decision.

¶ 10. The SSPI conceded, and it is undisputed, that the District's original reason for denying McMor-row's enrollment — involving the Chapter 220 students — was invalid and improper; therefore, it need not be further addressed. The SSPI must affirm a school district's decision unless the appellant demonstrates that the decision was arbitrary or unreasonable. See WlS. Stat. § 118.51(9) (The department shall affirm the school board's decision unless the department finds that the decision was arbitrary or unreasonable.); Wis. Admin. Code § PI 36.10(3)(b). Our decision focuses on whether the SSPI's affirmance of the District's decision, on other grounds, can be upheld. We conclude that it cannot because: (1) McMorrow demonstrated that the school district's decision was arbitrary; (2) there is not substantial evidence to support the SSPI's findings of fact; and (3) the SSPI erroneously interpreted the statutory provisions involved.

¶ 11. In affirming the District's decision to deny McMorrow enrollment, the SSPI provided the following pertinent findings of fact:

[ ] To support its space determination, the district provided its Administrative guidelines used for the management of student transfers. The guidelines identify core classes in the high school. It identifies average class size. The guidelines then require a high school grade to be closed to transfer students when at least two of the core classes are at or above the average class size.[ ] Two eleventh grade classes, Advance Composition and US History had class sizes in excess of the average class size. Therefore, the grade was closed.
[ ] The district did allow three continuing 11th grade students to stay at Whitefish Bay under open enrollment. Pursuant to sec. 118.5l(5)(c), Stats., these students were entitled to a preference to be accepted into the open enrollment program at Whitefish Bay.

The SSPI concluded that the District's "decision was not arbitrary or unreasonable."

C. Pertinent Statutory Provisions.

¶ 12. Resolution of this appeal involves interpretation of two particular subsections of WlS. STAT. § 118.51:

(3) Application procedures.. .. 2. ... If a nonresident school board receives more applications for a particular grade or program than there are spaces available in the grade or program, the nonresident school board shall determine which pupils to accept on a random basis.
(5) Nonresident school district acceptance CRITERIA. . . .
. (c) Required preference. A nonresident school board shall give preference in accepting applications under sub. (3) (a) to pupils and to siblings of pupils who are already attending public school in the nonresident school district.

¶ 13. In addition, "Policy 425, Open Enrollment," which was adopted by the Whitefish Bay School District Board of Education, and sets forth the "decisional criteria" for nonresident applications pursuant to WlS. Stat. § 118.51, is pertinent to our review. Policy 425 provides in pertinent part:

Decisions on nonresident applications will be based only on the following criteria:
A. Whether there is space available for Nonresident Students. ... In determining such space available, the District Administrator shall consider, but not be limited to the following:
1. District practices, policies, procedure and other factors regarding class size ranges for particular programs or classes.
2. District practices, policies, procedures or other factors regarding faculty-student ratio ranges for particular programs, classes or buildings.
3. Enrollment projections ....
4. The number of nonresident students currently attending the schools of the district for whom tuition is paid by another District under section 121.78(l)(a), Wis. Stats.

D. Application.

¶ 14. The SSPI based its decision on materials relative to class sizes submitted by the school district during the appeal process. The materials provided that the 11th grade was closed to transfer students because two of the six core classes exceeded maximum capacity. One of the classes, Advanced Composition, had 242 students registered, split into twelve sections for an average class size of 20.167. The maximum class size for this class was 20 students per section. The other class, U.S. History, had 260 students registered, split into 10 sections for an average class size of 25. The maximum class size for this class was 25 students. Accordingly, the school district could have denied all open enrollment applications on this basis in accord with WlS. STAT. § 118.51(5)(c) and Policy 425. However, that is not what happened in this case.

¶ 15. McMorrow was one of four open enrollment applicants seeking admission to the 11th grade at Whitefish Bay High School. The other three applicants were: (1) Lorian Becker: Lorian had been a student in the District from kindergarten through the 10th grade. Her parents were moving out of the District, but wished to have Lorian complete her schooling in Whitefish Bay; (2) Michael Auda: Michael had been a student in the District from the 2nd grade through the 10th grade, although he resided in the Shorewood School District. His parents paid tuition for Michael to attend school in Whitefish Bay, and wanted him to complete high school at Whitefish Bay; (3) Abigail Weimer: Abigail had attended school in the District in 9th and 10th grades. Her mother was marrying an individual who was employed by the City of Milwaukee and, therefore, was required to move within the city's limits. Thus, the District processed four applications for open enrollment for the 11th grade at Whitefish Bay High School. They denied only McMorrow's application. The District approved the other three student applicants despite the fact that there was no class space available in the 11th grade because the two core classes referenced above were at their maximum limits.

¶ 16. The District and the SSPI justified the admission of the three other students under the "required preference" given to continuing students contained in Wis. Stat. § 118.51(5)(c). We conclude that both the SSPI's factual findings and statutory interpretation were erroneous. This statutory provision requires the District to "give preference in accepting applications under sub. (3)(a), to pupils and to siblings of pupils who are already attending public school in the . . . District." Id. However, this provision applies only when there are spaces available in the first place. Subsection (3)(a) provides that when there are more applicants than spaces available, the pupils accepted shall be determined on a random basis. See Wis. Stat. § 118.51(3)(a)2. These statutory provisions are clear and unambiguous; and must be applied as written. See Beard, 225 Wis. 2d at 10. In the instant case, there were no spaces available in the 11th grade. Thus, as pointed out by the circuit court: "The decision to accept the three students who wished to continue at Whitefish Bay High School in the 11th grade was not a decision based on a priority to an available space. It was a decision to accept them even though space was not available." This is the only reasonable interpretation of the statutory language. The language suggests that first a space determination must be made, with continuing students thereafter being given the first opportunity to fill the available spaces. As McMorrow points out, "[t]here would be no need to give preference if Open Enrollment applicants who were also continuing students were already included in the space availability determination."

¶ 17. Thus, the SSPI's finding of fact that the three other students were accepted because each was entitled to priority under Wis. Stat. § 118.51(5)(c) is premised on an incorrect interpretation of the statute. In turn, the SSPI relied on this erroneous interpretation of the same statutory provision in reaching its conclusion. The SSPI concluded that because the three other students were entitled to the preference, the decision of the District was not arbitrary or unreasonable. However, when the statutes are interpreted correctly, the three other students were not entitled to the preference and, thus, the District's reliance upon the class size guidelines to deny McMorrow enrollment becomes arbitrary. "Arbitrary... action on the part of an administrative agency occurs when it can be said that such action is unreasonable or does not have a rational basis." Olson v. Rothwell, 28 Wis. 2d 233, 239, 137 N.W.2d 86 (1965) (citation omitted).

¶ 18. As the trial court pointed out:

No rational explanation has been presented by the District for its position that says, in effect, average class sizes of 20.4167 for Advanced Composition and 25.3 for U.S. History (the averages which include the three students) are acceptable, but average class sizes of 20.5 for Advanced Composition and 25.4 for U.S. History (the averages if Jordan McMorrow is also accepted) are not. This Court doubts that a rational explanation could be made for this position.
. . . On the state of this record, three students were accepted by the District in spite of the District's class size Guidelines and a fourth was denied that same exception without any explanation of the reason for the denial of that student. That is arbitrary. A decision without a valid stated reason is unreasonable.

In other words, it is arbitrary and unreasonable to make an exception to the class size guidelines to admit three students into the 11th grade, but deny McMor-row's admission without a valid reason.

¶ 19. In sum, the circuit court's decision was correct. The SSPI erred when it found that Wis. Stat. § 118.51(5) supported the preferential treatment of the three continuing students when no class space was available; and, the SSPI erred when, based on that finding, it concluded that the District's decision to deny McMorrow's application for class space reasons was not arbitrary or unreasonable. We affirm the circuit court's order reversing the SSPI's decision.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       McMorrow argues in his response brief that the SSPI exceeded its authority when it, relying on WlS. ADMIN. Code § PI 36.10(3)(c)(3), affirmed the school district's decision for other reasons. However, because we have resolved the appeal in favor of affirming the circuit court's decision, we need not reach this additional argument. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need to be addressed).

       Wis. Stat. § 118.51 provides in pertinent part:
      Full-time open enrollment.
      (2) Applicability. Beginning in the 1998-99 school year, a pupil may attend a public school, including a prekindergarten, early childhood or school-operated day care program, in a nonresident school district under this section, except that a pupil may attend a prekindergarten, early childhood or school-operated day care program in a nonresident school district only if the pupil's resident school district offers the same type of program that the pupil wishes to attend and the pupil is eligible to attend that program in his or her resident school district.
      (3) Application procedures, (a) Submission and acceptance or rejection. 1. The parent of a pupil who wishes to attend a public school in a nonresident school district under this section shall submit an application, on a form provided by the department under sub. (15) (a), to the school board of the nonresident school district that the pupil wishes to attend, not earlier than the first Monday in February and not later than the 3rd Friday in February of the school year immediately preceding the school year in which the pupil wishes to attend. On the 4th Monday in February, the nonresident school board shall send a copy of the application to the pupil's resident school board and the department. The application may include a request to attend a specific school or program offered by the nonresident school district.
      2. A nonresident school board may not act on any application received under subd. 1. until after the 3rd Friday in February. If a nonresident school board receives more applications for a particular grade or program than there are spaces available in the grade or program, the nonresident school board shall determine which pupils to accept on a random basis.
      3. On or before the first Friday following the first Monday in April following receipt of the application, the nonresident school board shall notify the applicant, in writing, whether it has accepted the application. If the nonresident school board rejects an application, it shall include in the notice the reason for the rejection.
      4. On or before the first Friday following the first Monday in April following receipt of a copy of the application, if a resident school board denies a pupil's enrollment in a nonresident school district under sub. (6), (7) or (12) (b) 1., the resident school board shall notify the applicant and the nonresident school board, in writing, that the application has been denied and include in the notice the reason for the denial.
      5. If an application is accepted, on or before the 2nd Friday following the first Monday in May following receipt of the application, the nonresident school board shall notify the applicant, in writing, of the specific school or program that the pupil may attend in the following school year.
      6. If an application is accepted, on or before the first Friday following the first Monday in June following receipt of a notice of acceptance, the pupil's parent shall notify the nonresident school board of the pupil's intent to attend school in that school district in the following school year.
      (b) Notice to resident school district. Annually by June 30, each nonresident school board that has accepted a pupil under this section for attendance in the following school year shall report the name of the pupil to the pupil's resident school board.
      (c) Subsequent reapplication; when required. 1. If a pupil's parent notifies a nonresident school board, under par. (a) 6., that the pupil intends to attend school in that school district in the following school year, the pupil may attend that school district in the following school year and may continue to attend that school district in succeeding school years without reapplying, except that the nonresident school board may require that the pupil reapply, no more than once, when the pupil enters middle school, junior high school or high school.
      2.If at any time a pupil who is attending school in a nonresident school district under this section wishes to attend school in a different nonresident school district under this section, the pupil's parent shall follow the application procedures under par. (a).
      (4) ■ Adoption of policies and CRITERIA, (a) By February 1, 1998, each school board shall adopt a resolution specifying all of the following:
      1. Its reapplication requirements, if any, under sub. (3) (c) 1.
      2. Its acceptance and rejection criteria under sub. (5) (a) and (b).
      3. A statement of the preference required under sub. (5) (c).
      4. Its transfer limitations, if any, under sub. (6).

        5. If the school district is eligible for aid under subch. VI of ch. 121, the limitation on transfers into or out of the school district imposed by the school board under sub. (7).
      6. Whether it will provide transportation under s. 121.54 (10) for some or all of the pupils who reside in the school district and attend school in a nonresident school district under this section or for some or all of the pupils who reside in other school districts and attend its schools under this section, and the means, under s. 121.55, by which it will provide such transportation.
      (b) If the school board revises its criteria or policies under par. (a), it shall do so by resolution.
      (S) Nonresident school district acceptance criteria, (a) Permissible criteria. Except as provided in par. (c), the criteria for accepting and rejecting applications from nonresident pupils under sub. (3) (a) may include only the following:
      1. The availability of space in the schools, programs, classes or grades within the nonresident school district, including any class size limits, pupil-teacher ratios, pupils attending the school district for whom tuition is paid under s. 121.78 (1) (a) or enrollment projections established by the nonresident school board.
      2. Whether the pupil has been expelled from school by any school district during the current or 2 preceding school years for any of the following reasons or whether a disciplinary proceeding involving the pupil, which is based on any of the following reasons, is pending:
      a. Conveying or causing to be conveyed any threat or false information concerning an attempt or alleged attempt being made or to be made to destroy any school property by means of explosives.
      b. Engaging in conduct while at school or while under supervision of a school authority that endangered the health, safety or property of others.
      c. Engaging in conduct while not at school or while not under the supervision of a school authority that endangered the health, safety or property of others at school or under the supervision of a school authority or of any employe of the school district or member of the school board.
      d. Possessing a dangerous weapon, as defined in s. 939.22 (10), while at school or while under the supervision of a school authority.

        4. Whether the special education program or related services described in the child's individualized education program under s. 115.787 (2) are available in the nonresident school district or whether there is space available in the special education program identified in the child's individualized education program, including any class size limits, pupil-teacher ratios or enrollment projections established by the nonresident school board.
      6. Whether the child has been referred to his or her resident school board under s. 115.777 (1) or identified by his or her resident school board under s. 115.77 (lm) (a) but not yet evaluated by an individualized education program team appointed by his or her resident school board under s. 115.78 (1).
      (b) Rejection after initial acceptance. The criteria under par. (a) may provide that, notwithstanding the nonresident school board's acceptance of an application under sub. (3) (a) 3., at any time prior to the beginning of the school year in which the pupil will first attend school in the school district under this section, the school, board may notify the pupil that he or she may not attend school in the school district if the school board determines that any of the criteria under par. (a) 2. are met.
      (c) Required preference. A nonresident school board shall give preference in accepting applications under sub. (3) (a) to pupils and to siblings of pupils who are already attending public school in the nonresident school district.
      (6) Resident school DISTRICT transfer limitations. A school board may limit the number of its resident pupils attending public school in other school districts under this section in the 1998-99 school year to 3% of its membership. In each of the 7 succeeding school years, a school board may limit the number of its resident pupils attending public school in other school districts to an additional 1% of its membership. If more than the maximum allowable number of resident pupils apply to attend public school in other school districts in any school year under this section, the school board shall determine which pupils will be allowed to attend public school in other school districts on a random basis, except that the school board shall give preference to pupils who are already attending public school in the school district to which they are applying under this section and to siblings of such pupils.

        (9) Appeal of Rejection. If the nonresident school board rejects an application under sub. (3) (a) or (7) or the resident school board prohibits a pupil from attending public school in a nonresident school district under sub. (6), (7) or (12) (b) 1., the pupil’s parent may appeal the decision to the department within 30 days after the decision. The department shall affirm the school board's decision unless the department finds that the decision was arbitrary or unreasonable.
      (10) Pupil ASSIGNMENT. A nonresident school board may assign pupils accepted to attend public school in the school district under this section to a school or program within the school district. The school board may give preference in attendance at a school, program, class or grade to residents of the school district who live outside the school's attendance area.
      (15) Department duties. The department shall do all of the following:
      (a) Application form. Prepare, distribute to school districts and make available to parents an application form to be used by parents under sub. (3) (a). The form shall include provisions that permit a parent to apply for transportation reimbursement under sub. (14) (b).
      (b) Information and assistance. Develop and implement an outreach program to educate parents about the open enrollment program under this section, including activities specifically designed to educate low-income parents, and services to answer parents' questions about the program and assist them in exercising the open enrollment option provided under this section.
      (c) Annual report. Annually submit a report to the governor, and to the appropriate standing committees of the legislature under s. 13.172 (3), on the number of pupils who applied to attend public school in a nonresident school district under this section, the number of applications denied and the bases for the denials, and the number of pupils attending public school in a nonresident school district under this section.

       Chapter 220 is the student transfer program created by Wis. Stat. § 121.85.

       After McMorrow's application was denied, he established residency in the Whitefish Bay School District, so that he could attend Whitefish Bay High School.


source: Caselaw Access Project

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Walter Horngren, Defendant-Appellant.

    Court of Appeals

      No. 99-2065-CR.

      Submitted on briefs June 5, 2000.

    Decided July 25, 2000.

    2000 WI App 177
    (Also reported in 617 N.W.2d 508.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of James M. Weber of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief oí James E. Doyle, attorney general and Christopher G. Wren, assistant attorney general.

      Before Wedemeyer, P.J., Schudson and Curley, JJ.

      Petition to review dismissed.

   WEDEMEYER, P.J.

¶ 1. Walter Horngren appeals from a judgment entered after he pled guilty to one count of possession with intent to deliver a controlled substance — marijuana—contrary to WiS. Stat. § 961.41(lm)(h)2 (1997-98). Horngren claims the trial court erred when it denied his motion to suppress evidence, which alleged that the police were not justified to enter his apartment under the "community caretaker" function. Because the trial court did not err when it denied Horngren's motion to suppress, we affirm.

I. BACKGROUND

¶ 2. On June 15,1998, shortly after 8:00 a.m., the police dispatcher for the City of Greenfield received a telephone call reporting that an individual at 5361 South Tuckaway Lane, Apt. #2 was threatening to commit suicide. Several Greenfield police squads were dispatched to the residence. While en route, the officers were informed that, on two prior occasions, a resident of that apartment, Horngren, had been committed to a mental health facility for attempted suicide. The officers were also advised that one previous suicide attempt involved an overdose of pills. Additionally, the officers were informed that during the investigation of Horngren's previous suicide attempt, several firearms were confiscated, but were subsequently returned.

¶ 3. Once the police officers arrived at the apartment building, Officers Timothy Hanrahan and Michael Davis proceeded to Horngren's apartment. Hanrahan leaned on the door and it opened slightly. A nude male was then seen rushing towards the door attempting to close it. A struggle ensued between Han-rahan, who was trying to push the door open, and Horngren, the nude male, who was trying to push the door closed. The officers succeeded in opening the door, and secured Horngren by placing handcuffs on him.

¶ 4. Police Detective James Bruno then entered the apartment and asked Horngren if anyone else was in the apartment. Horngren said there was a girl in the back bedroom. Bruno proceeded down the hallway looking for the back bedroom. He walked into the room that was in the back of the apartment and looked around. There was no bed in the room; however, he immediately observed a green substance, which he believed to be marijuana, located on top of a desk. He looked in the closet, but did not find the girl.

¶ 5. Bruno looked into the bathroom, but did not see a girl. Then Bruno and Hanrahan entered the middle bedroom, where they found a girl asleep in a bed. She identified herself, told the officers that this was her apartment, that her name was on the lease, that any drugs belonged'to Horngren, and gave the officers consent to fully search the apartment. Horngren also consented to the subsequent search.

¶ 6. During the search of the back bedroom, the police officers discovered over 500 grams of marijuana, a triple-beam scale, and other drug paraphernalia. Horngren was arrested and charged with possession with intent to deliver a controlled substance. Horngren filed a motion to suppress the evidence, contending that the entry and initial search of the apartment were conducted in violation of his Fourth Amendment rights. The trial court held a hearing, where both Detective Bruno and Officer Hanrahan testified. The trial court ruled that the actions of the police, after entering the apartment, were reasonable and did not violate Horngren's Fourth Amendment rights. After the trial court denied the motion seeking suppression, Horngren pled guilty. He now appeals.

II. DISCUSSION

¶ 7. The issue in this case is whether the trial court erred in denying Horngren's motion to suppress, premised on Horngren's claim that the police were not operating as "community caretakers" when they entered his apartment. When we review a motion to suppress evidence, we will uphold a circuit court's findings of fact unless they are clearly erroneous. See State v. Eckert, 203 Wis. 2d 497, 518, 553 N.W.2d 539 (Ct. App. 1996). However, the application of constitutional principles to the facts as found is a question of law which we decide without deference to the circuit court's decision. See State v. Patricia A.P., 195 Wis. 2d 855, 862, 537 N.W.2d 47 (Ct. App. 1995).

¶ 8. The "Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution prohibit unreasonable searches and seizures." State v. Paterson, 220 Wis. 2d 526, 532, 583 N.W.2d 190 (Ct. App. 1998). "The war-rantless search of a house is presumptively unreasonable." Id. However, we recognize that, under special circumstances, there are situations where we cannot "bar law enforcement officials at the doorstep." State v. Smith, 131 Wis. 2d 220, 228, 388 N.W.2d 601 (1986).

¶ 9. One of those special circumstances has been identified as the "community caretaking exception," which was first recognized by our supreme court in Bies v. State, 76 Wis. 2d 457, 471, 251 N.W.2d 461 (1977). In evaluating whether police action was justified as "community caretaker" activity, we must first determine whether the conduct involved was truly "bona fide community caretaker activity." Paterson, 220 Wis. 2d at 533 (citation omitted). Community caretaker activity is defined as: "being totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." State v. Dull, 211 Wis. 2d 652, 658, 565 N.W.2d 575 (Ct. App. 1997) (citations omitted). The second part of our inquiry requires a review which weighs the "public good" involved against the level of intrusion on an individual's privacy. See id. We must determine whether the Fourth Amendment's standard of "reasonableness" has been satisfied under the facts and circumstances of the individual case. See id. (citation omitted).

A. Entry.

¶ 10. Horngren contends that the police entry, in response to a suicide threat, was made pursuant to Wis. Stat. § 51.15, "Emergency detention." Therefore, he argues that the entry occurred while the officers were "engaging in traditional law enforcement duties," not community caretaker duties. We disagree.

¶ 11. There is no case in this state that decides whether police action, pursuant to Wis. Stat. § 51.15, falls under community caretaking activity. Therefore, we apply the standards discussed above in making the determination that it does. First, the police response to the suicide threat constituted "bona fide community caretaking." The police were called to the home out of concern that an individual inside might take his own life. The police were acting in a capacity to render immediate aid and assistance. Wisconsin Stat. § 51.15(l)(a) permits a law enforcement officer to effect an emergency detention for medical evaluation when the officer "has cause to believe" an individual "is mentally ill. . . and evidences" any of several indications of dangerousness. For an officer to have the requisite "cause to believe," he or she must make a personal observation, see WlS. STAT. § 51.15(l)(b)l., or have knowledge of a "specific recent overt act or attempt or threat to act or omission by the individual which is reliably reported to the officer ... by any other person," WlS. Stat. § 51.15(l)(b)2. "[R]ecent threats of or attempts at suicide" serve as one indication, explicitly recognized by statutes, of a person's dangerousness. See WlS. Stat. § 51.15(l)(a)l.

¶ 12. Here, the police were dispatched to a home after a report that an individual there was threatening to commit suicide. The police were advised that two previous suicide attempts had occurred and that there were several guns in the home. Truly, the motivation in investigating the complaint was to render aid, not to investigate any criminal activity. As evidenced during the suppression hearing testimony, the officers' actual motivation was to render immediate assistance, not to obtain evidence for a possible prosecution.

¶ 13. The facts presented here do not involve "traditional enforcement of penal and regulatory laws." Dull, 211 Wis. 2d at 658 (citation omitted). The situation does not involve crime-fighting activities. Rather, as the State points out, "a response under Chapter 51 all but defines the 'community caretaking' responsibilities of law enforcement officers." We conclude that the first part of the standard has been satisfied.

¶ 14. With regard to the second part of the standard, the balancing test, we are satisfied that the public good arising from the caretaking activity outweighed the intrusion into the individual privacy that resulted. See id. After conducting the balancing test with an overall vision as to whether the intrusion was reasonable, we conclude that it was. See id. Here, the public good involved preventing a suicide, and securing medical assistance for a troubled individual. The intrusion involved entry without a warrant into an individual's home. After applying the four factors that offer us guidance, we are satisfied the entry was justified. These four factors include: (1) the degree of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding the search, including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability and effectiveness of alternatives to the type of intrusion actually accomplished. See Paterson, 220 Wis. 2d at 533 — 34 (citation omitted).

¶ 15. The first factor favors the entry. Preventing someone from taking his own life is of the utmost of public concern; it is well within the traditional community commonweal power. The exigency of such a situation is obvious. A suicide can occur in a matter of minutes. The second factor provides the circumstances surrounding the entry, which occurred at 8:00 a.m., into Horngren's home, with some force in order to enter, but only after observing an agitated naked man running toward the door. Moreover, the police did not control the time or location, but were responding to a suicide call. Thus, the attendant circumstances factor does not render the entry unreasonable. The third factor is inapplicable here. The fourth factor addresses alternatives to the entry effected. Horngren suggested that the police could have telephoned before entering, or they could have knocked and announced themselves. While there were a number of less intrusive alternatives available, those less intrusive means, under the circumstances in this case, were simply not feasible.

¶ 16. Horngren. had made two previous suicide attempts, which resulted in his commitment. He had access to deadly weapons. The police did not know whether he was alone. Phoning to alert Horngren that the police were coming would have been counterproductive. The time before the police arrived may have provided him with sufficient time to carry out his threat, or given him the extra push needed to accomplish his threat, in order to avoid a third commitment. Further, as pointed out by the trial court, an individual threatening suicide is "under great stress and rather overwhelmingly unstable." Given that state of mind, a warning that police were on their way to offer assistance was not a reasonable alternative.

¶ 17. Further, other suggestions, such as knocking at the door, were thwarted when the door popped open and the struggle ensued. If Horngren's door had been tightly closed and locked, the police officers would have faced a different decision. Here, that circumstance did not confront the police. The door was not locked or tightly closed. By slightly leaning on the door, the officer popped it open, which resulted in Horngren rushing to close it. At that point, the split-second decision the officer made to use force to open the door cannot be deemed unreasonable. We conclude that the balancing test tips in favor of police action. In coming to the aid of Horngren, when it was believed he was in danger of death or physical harm, the police were endeavoring to accomplish public good.

¶ 18. Accordingly, we affirm the trial court's decision that the police were acting as community caretakers when they entered Horngren's apartment. We concur in the trial court's ruling that the police entered the apartment with the motivation to render aid, not to collect evidence. The " 'community caretaker' function of the police which, while perhaps lacking in some respects the urgency of criminal investigation, is nevertheless an important and essential part of the police role." Bies, 76 Wis. 2d at 471. We heartily endorse the words of the California Supreme Court, which recently advised against taking a too-narrow view of the community caretaker function:

An officer "less willing" to discharge community caretaking functions implicates seriously undesirable consequences for society at large: In that event, we might reasonably anticipate "the assistance role of law enforcement... in this society will go downhill. . . . The police cannot obtain a warrant for . . . entry. [WJithout a warrant, the police are powerless. In the future police will tell such concerned citizens, 'Sorry. We can't help you. We need a warrant and can't get one.'"

People v. Ray, 981 P.2d 928, 939 (Cal. 1999) (citations omitted), cert. denied, 120 S. Ct. 1240 (2000).

B. Search.

¶ 19. Horngren contends that, even if the entry was permitted pursuant to the community caretaker function, the initial cursory search of the other rooms, which resulted in Detective Bruno's discovery of the marijuana, was unconstitutional. He claims that the "protective sweep" doctrine does not apply here because it authorizes a brief search, incident to an arrest, of the areas immediately adjoining the place of arrest. See State v. Kruse, 175 Wis. 2d 89, 95, 499 N.W.2d 185 (Ct. App. 1993), He points out that there was no arrest and, therefore, no justification to conduct a protective sweep. We disagree.

¶ 20. "A protective sweep is a brief search of the premises, ordinarily occurring during an arrest, to ensure the safety of those on the scene." Guseman v. Martinez, 1 F. Supp. 2d 1240, 1254 (D. Kan. 1998) (emphasis added). An arrest, however, does not define the sole context in which a protective sweep can constitutionally occur. Rather, within the purview of a bona fide community caretaker activity, the reasonableness of an officer's actions, evaluated under the totality of the circumstances, determines the constitutionality of the officer's conduct. See Dull, 211 Wis. 2d at 658. Thus, the question is whether the "sweep" that occurred here was reasonable under the circumstances. We conclude that it was.

¶ 21. After the police entered the apartment and handcuffed Horngren, they asked him if there was anyone else in the apartment. He told them there was a girl in the back bedroom. Thus, the police were presented with a situation where a nude male adult stands before them telling them there is "a girl" in the back bedroom. The police had been summoned to the apartment pursuant to a suicide threat, and they suspected weapons on the premises. Despite the struggle and noise, there had been no response from "the girl." It would have been unreasonable for the police not to check on the status of the girl under these circumstances. Was she in danger or did she pose a danger to the officers' safety? Accordingly, the limited search that occurred was reasonable and did not violate Horn-gren's constitutional rights.

C. Plain View Doctrine.

¶ 22. Finally, Horngren concedes that if we decide the cursory search of the apartment was lawful, it is undisputed that the marijuana sitting on the desk was in plain view and, therefore, lawfully seized. We have so concluded. Accordingly, we need not address this issue further.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       The State urges us to adopt different terminology for the cursory search incident to the community caretaking role. It recommends that we label the quick sweep in community caretaker cases as "caretaker sweep," so that it will not be confused with the protective sweep associated with a lawful arrest. We perceive this request as an attempt to declare new law that a "caretaker sweep" is permitted in every situation where the police are functioning as community caretakers. We decline to do so. There may be situations and circumstances where a cursory search of the area is not warranted and, therefore, we are unwilling to create such an extension. These cases must be examined on a case-by-case basis to determine the reasonableness of the conduct itself.


author: PETERSON, J. HOOVER, P.J.

text:
    Society Insurance, a Mutual Company, Plaintiff-Respondent, v. Phil Linehan, d/b/a Linehan's Old Coach Tavern, Defendant-Co-Appellant, Jeffrey Litvinoff, Patricia L. Litvinoff and Wisconsin Department of Health and Family Services, Defendants, Dakota Litvinoff, by his Guardian ad Litem, Michael E. Sias, Defendant-Appellant.
    Court of Appeals

      No. 00-0195.

      Submitted on briefs July 10, 2000.

    Decided July 25, 2000.

    2000 WI App 163
    (Also reported in 616 N.W.2d 918.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Gregory R. Wright of Gregory R. Wright Law Offices, S.C., Montello.
    On behalf of the defendant-co-appellant, the cause was submitted on the briefs of Shane J. VanderWaal of Kelley, Weber, Pietz & Slater, S.C., Wausau.
    On behalf of the defendant-respondent, the cause was submitted on the brief of James W. Mohr, Jr. of Mohr & Anderson, S.C., Hartford.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.

      Petition to review denied.

   PETERSON, J.

¶ 1. Phil Linehan, Dakota Litvinoff, Jeffrey Litvinoff, Patricia L. Litvinoff, and the Wisconsin Department of Health and Family Services (collectively Linehan) appeal a summary judgment in favor of Society Insurance finding no coverage under a business liability insurance policy for a dog bite. Linehan argues that he is insured under the terms of his policy for any liability due to an animal kept in the conduct of his business, absent any policy exclusions to the contrary. We agree and therefore reverse.

BACKGROUND

¶ 2. Linehan was the sole proprietor of Old Coach Tavern, which was insured under a business insurance policy issued by Society. Linehan owned a dog named Rudd. According to Linehan, Rudd served an important business function as the tavern's mascot. Society conceded that Rudd served a business purpose because "everyone comes in the tavern to see the dog." In addition, Rudd slept at the tavern at night, providing some security against burglary.

¶ 3. Linehan was out of town on the day of the attack and had given the bartender instructions not to let Rudd outside. Rudd, however, was let out of the tavern and injured Dakota, a two-year-old child, on property adjacent to the tavern and owned by someone else.

¶4. Society brought an action requesting that the circuit court declare there was no coverage for Dakota's injuries under the tavern's business policy. The circuit court granted Society's motion and this appeal followed.

DISCUSSION

¶ 5. We review a summary judgment decision de novo, applying the same standard as the circuit court. See Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980). A motion for summary judgment must be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Wis. Stat. § 802.08(2).

¶ 6. We interpret an insurance policy's terms without deference to the circuit court's decision. See Kaun v. Industrial Fire & Cas. Ins. Co., 148 Wis. 2d 662, 667, 436 N.W.2d 321 (1989). "The construction of words and phrases in insurance policies is generally a matter of law and is controlled by the same rules of construction as are applied to contracts generally." Kremers-Urban Co. v. American Employers Ins. Co., 119 Wis. 2d 722, 735, 351 N.W.2d 156 (1984). "Where no ambiguity exists in the terms of the policy, we will not engage in construction, but will merely apply the policy terms." Id. at 736.

¶ 7. The initial inquiry is whether Linehan is an insured as defined in the policy. The relevant portion of the policy states:

C. WHO IS AN INSURED
1. If you are designated in the Declarations as:
a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner.

Linehan is designated in the declarations and is the sole owner of the tavern. Thus, the next question becomes whether his liability arises "with respect to the conduct of the business."

¶ 8. The circuit court focused on the dog's activity at the time of the bite. It observed that Rudd was "wandering around aimlessly in a vacant field owned by someone else and allegedly assaulting patrons of another tavern .... The alleged conduct took place off of the business premises, in an area that was not owned by the business owner, in an area where there was no business or commercial activity of any kind that takes place, especially not by the insured."

¶ 9. On appeal, Society similarly focuses on the dog's activity at the time of the bite. Society contends that for Linehan to be covered, Rudd must have been furthering the conduct of the business when it attacked Dakota, that the incident must have been part of the insured's business activities, and that it must have been directly related to a specific business purpose.

¶ 10. Linehan, on the other hand, focuses on the keeping of Rudd. He points out that Rudd was property. Linehan's liability, according to him, arises from his activities and the activities of his employees, not from the activity of his property. Thus, he concludes that keeping the dog was part of the conduct of his business.

¶ 11. First, we conclude that "conduct of a business" is unambiguous. The term is not defined in the policy. However, we give the language its plain meaning. See Kremers-Urban Co., 119 Wis. 2d at 736. We choose to follow the lead of other appellate courts called upon to interpret similar language found under "WHO IS AN INSURED" as unambiguous. For example, in Travelers Indem. Co. v. Nix, 644 F.2d 1130 (5th Cir. 1981), the insured owned a gasoline station. An argument ensued between the owner and his son. A customer at the station intervened and the owner shot the customer in the leg. The owner tendered his defense to his insurance carrier. See id. at 1131. The court held that the owner's policy did "not provide coverage for personal liability arising from personal matters and cannot be extended to provide coverage for such liability. There is no ambiguity in the policy Id. at 1132.

¶ 12. Also, in Employers Mut. Cas. Co. v. Kangas, 245 N.W.2d 873 (Minn. 1976), the defendant had a business liability policy containing the phrase "conduct of a business." The insured was a welder and had taken his business to a local racetrack to perform services on race cars. While there, he lit a firecracker and injured the plaintiff. The court concluded that there was no ambiguity in the meaning of the policy. It held there was no coverage because shooting fireworks had no connection with the conduct of the business. See id. at 876.

¶ 13. Second, we conclude that "conduct of a business" must be determined based on the actions of Linehan and his employees, not on the actions of Rudd. Society cites a number of cases, including Nix and Kangas. However, all of these cases decide the coverage issue based on the conduct of business owners, business employees, or business agents. They do not determine coverage based on the conduct of a piece of property, such as a dog. Thus, we conclude it is improper to focus on the dog's activities at the time of the attack.

¶ 14. Third, we note from the cases cited by Society that conduct is either personal or business. Thus, Nix held that the policy provided "coverage for liability arising out of the conduct of the business, or incidental to the business." Id. at 1132. It did not cover activities arising from personal matters.

¶ 15. The question then is whether the conduct of Linehan and his employees, with respect to the dog, was business or personal. In other words, when Society argues that Linehan's conduct was not business, the only alternative is that his conduct was personal. That simply defies the undisputed facts. Society concedes that Rudd served a business purpose. It was a mascot and provided some security. On this particular day Rudd had been in the tavern and was let outside by one of Linehan's employees. While outside, the dog bit Dakota. Because Linehan was keeping the dog as part of the conduct of his business, and because the child was injured while the dog was released temporarily from the tavern, we are satisfied there was coverage under Society's insurance policy.

By the Court. — Judgment reversed.

HOOVER, P.J.

¶ 16. (concurring). The issue is, what does "conduct of a business" mean in the definition of an insured. The majority says that the phrase is unambiguous. I respectfully disagree, but concur in the result the majority reaches for a different reason.

¶ 17. in concluding that "conduct of business" is unambiguous, the majority relies on foreign authority rather than an analysis of the policy's language. I, however, am not persuaded that the cases relied upon by the majority are of assistance, because they ultimately hold merely that an individual engaged in what is clearly personal activity is unambiguously not an insured under a business liability policy.

¶ 18. Linehan says that "conduct of a business" encompasses owning or maintaining business property. A terse statement of Society's position is that a tortfeasor's liability must arise out of a business activity in furtherance of the business. I view both constructions as reasonable, without regard to the potentially absurd results either interpretation might result in. If language in an insurance policy has two reasonable interpretations, it is ambiguous, Ennis v. Western Nat'l Mut. Ins. Co., 225 Wis. 2d 824, 831, 593 N.W.2d 890 (Ct. App. 1999), and is construed in favor of coverage. Id. at 833-34. If Society intends for the phrase to have the meaning it urges on this court, it may so define it in the policy.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       The circuit court recognized however, that Linehan's policy is a standard form business liability insurance policy which covers bodily injuries caused by accidents anywhere in the "coverage territory," which is defined in the policy to be anywhere within the United States, Puerto Rico, and Canada. The policy does not limit coverage to customers of the tavern, nor does it contain any exclusions pertaining to injuries arising out of the owning or keeping of animals.

       Society cites Transcontinental Ins. Co. v. Edwards, 1996 W.L. 814532 (W.D. Ark.) (kidnapping and assault are not included in the concept of the business); Edelman v. Pacific Employers Ins. Co., 1997 W.L. 781814 (Conn. Super. Ct.) (no coverage for assault even though it occurred on the insured premises); Jones v. American Fam. Mut. Ins. Co., 666 N.E.2d 1152 (Ohio Ct. App. 1995) (fist fights between employees are presumed to be outside the scope of employment); Spencer v. Assurance Co. of Am., 39 F.3d 1146 (11th Cir. 1994) (employee who commits assault is not furthering the business of his employer); Delvaux v. Vanden Langenberg, 130 Wis. 2d 464, 387 N.W.2d 751 (1986) (tavern owners protected from claims arising out of injuries occurring to members of the public caused by the harmful acts of third persons); Winther v. Valley Ins. Co., 915 P.2d 1050 (Or. Ct. App. 1996) (the business of a partnership does not include internecine legal strife).

       While not dispositive, I note that Judge Carlson accepted Society's construction while the majority agrees with Linehan's interpretation.


author: ANDERSON, J.

text:
    In re the Marriage of: Ilona Preiss, Petitioner-Respondent, v. Alfred PREISS, Respondent-Appellant.
    Court of Appeals

      No. 99-3261.

      Submitted on briefs June 7, 2000.

    Decided July 26, 2000.

    2000 WI App 185
    (Also reported in 617 N.W.2d 514.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Thomas W. Anderson, Jr. of Anderson, Sumpter & Anderson, S.C., Kenosha.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Jerold W. Breitenbach, Kenosha.
    Before Brown, P.J., Nettesheim and Anderson, JJ.
   ANDERSON, J.

¶ 1. Alfred Preiss appeals from the property division and maintenance provisions of a divorce judgment. He argues that the circuit court erroneously exercised its discretion by: (1) considering Alfred's sick leave account as an asset suitable for division; (2) dividing Alfred's deferred compensation plan pursuant to a qualified domestic relations order (QDRO); (3) including the couple's bank account balance prior to the filing for divorce as an asset in his portion of the marital estate; (4) requiring Alfred's pension to be divided as of the date he began to receive it; (5) holding open the maintenance decision; and (6) improperly valuing the couple's vehicles. Having reviewed the record, we agree with Alfred on two points. The court's decisions that the sick leave account was an asset of the marital estate and that the deferred compensation plan was to be divided pursuant to a QDRO are both erroneous; accordingly, we reverse these components of the property division. We affirm the remaining rulings.

Background

¶ 2. Alfred and Ilona Preiss were married on December 22, 1972. During their twenty-six-year marriage, the couple had two children who are now adults. They were divorced on November 8, 1999. At the time of divorce, Alfred, age fifty-seven, was retired from the Department of Corrections; and Ilona, age fifty-one, was working at a part-time factory job.

¶ 3. The court made these findings of fact. During the marriage, Alfred was the primary wage earner. Ilona has a college degree and is in good health. Although Alfred retired during the pendency of the divorce, he was not required to do so because of his poor health and could work if he so chose. Alfred receives a weekly income of $527.17 from his pension. Ilona earns $379.60 a week at her factory job.

¶4. With respect to property, the court determined that the marital estate would be divided equally. Ilona was awarded the family home and its furnishings with a net value of $147,337.12. She also received two IRA accounts valued at $18,460.22. Stocks and an additional IRA account with a net value of $32,361.05 were awarded to Alfred. The court valued each of the couple's four vehicles at $800, awarding two vehicles to each party.

¶ 5. Before the divorce was commenced, the couple's bank account had a balance of $3,264. At that time, Alfred withdrew almost all of the funds. He claimed that he legitimately used the money to set up his household. The court disagreed, concluding that Alfred had sufficient funds from other sources for this purpose. The bank account amount was thus included as one of Alfred's assets.

¶ 6. Alfred's pension was considered an asset to be divided equally by a QDRO. The court acknowledged that Alfred had made a unilateral decision to retire while the divorce was pending, and once he made that decision, he quit making maintenance payments to Ilona as required by the temporary order. Considering these circumstances, the court ordered that the pension would be divided equally as of the day Alfred began drawing it out.

¶ 7. The court awarded Alfred's $242,591.13 interest in a deferred compensation plan equally to the parties. It determined that this asset was to be divided by a QDRO. On December 9, 1999, Ilona moved the court to reopen judgment on this issue because Wis. Stat. § 40.08(1) (1997-98) did not permit this asset to be divided by a QDRO. The court declined to reopen the matter while the judgment was on appeal.

¶ 8. The asset the court deemed "the most difficult to assess" was Alfred's unused sick leave account valued at $70,000. Although Alfred could not withdraw for cash the value of these funds, he did have this amount available to offset his $500 per month health insurance costs. This created a disparity between the parties, the court noted, because Ilona would have to pay $389.15 a month to cover her health insurance costs. The court determined that this amount less tax consequences should be divided equally between them.

¶ 9. After considering several factors, the court decided to not award maintenance to either party but to hold open the decision should the parties' circumstances change. Alfred appeals.

Discussion

Division of the Marital Estate

¶ 10. On appeal, Alfred raises several arguments contesting the circuit court's division of the marital estate. The division of a marital estate is governed by Wis. Stat. § 767.255, which creates a presumption that the property will be divided equally. Determining the appropriate property division in a divorce case is a decision left to the discretion of the circuit court. See Liddle v. Liddle, 140 Wis. 2d 132, 136, 410 N.W.2d 196 (Ct. App. 1987). The term "discretion" encompasses a process of reasoning by the court based on the facts in the record or those facts reasonably derived by inference from the record and that produces a conclusion based on logic and founded on proper legal standards. See Johnson v. Johnson, 157 Wis. 2d 490, 497, 460 N.W.2d 166 (Ct. App. 1990). We will sustain the court's decision if it examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. See Liddle, 140 Wis. 2d at 136.

A. Sick Leave Account

¶ 11. Alfred first challenges the court's decision to include the value of his sick leave account as an asset of the marital estate. The circuit court placed a $70,000 value on Alfred's accumulated sick days and considered it an asset for division between the parties. The court determined that because Alfred was using the sick leave account to defray the cost of his health insurance payments and Ilona would have to pay her health insurance premiums out of pocket, the account should be considered as an asset.

¶ 12. Alfred objects to the court's decision because the account can never be cashed out or transferred. The account will terminate upon his death and can only be used for credit towards the employer's health insurance coverage, he contends. It does not have a fair market value. We agree.

¶ 13. As a former employee of the State of Wisconsin, Alfred's employment benefits are governed by Wis. Stat. ch. 40. Wisconsin Stat. § 40.04(10) provides for an "accumulated sick leave conversion account" from which "[p]remium payments to health insurers" can be deducted once the employee retires. See also Wis. Stat. § 40.05. Via its website, the Department of Employe Trust Funds describes the sick leave account benefit as follows:

As a state employe you earn hours of sick leave credit while you are employed. When you retire these sick leave hours are converted to credits to pay health insurance premiums. The amount available to pay premiums is calculated by multiplying the number of accrued sick leave hours times your hourly rate of pay when you retire. These sick leave credits can be used only to pay your group health insurance premiums; they have no cash value.

Wisconsin Department of Employe Trust Funds, Health Insurance (visited July 11, 2000)

<http://badger.state.wi.us/agencies/etf/ben/benl3p21. html> (emphasis added).

¶ 14. We determine that Alfred's sick leave account was erroneously considered an asset of the marital estate. Alfred cannot convey his interest in the account; he cannot gift it; he cannot transfer it. Because the account has no cash value and cannot be sold or transferred, it also does not have a fair market value. "Property to be divided at divorce is to be valued at its fair market value. Fair market value assumes sale by one who desires but is not obligated to sell and purchase by one willing but not obligated to buy." Sommerfield v. Sommerfield, 154 Wis. 2d 840, 853, 454 N.W.2d 55 (Ct. App. 1990) (citations omitted). A transaction that would determine the property's fair market value cannot be made. If property has no fair market value, the court cannot place an independent value upon it, and it should thus not be included as an asset in the marital estate.

¶ 15. The account does indeed have an intrinsic value. It has value to Alfred, but this value is not accessible to anyone else. In Wall v. Wall, 215 Wis. 2d 595, 573 N.W.2d 862 (Ct. App. 1997), we considered property with similar characteristics. In that case, we evaluated whether an employer's gift of two vacations to the respondent should be considered as income for determining ability to pay child support. Concluding that the vacations were not income for this purpose, we reasoned that "this [wa]s a trip that he could not trade, he couldn't sell, he couldn't take it in lieu of cash .... [H]e had to take it or lose it." Id. at 600-01. This rationale also applies to the present case.

¶ 16. We note that our current case concerns the property division of a marital estate. If maintenance or child support were at issue, then the fact that Alfred receives his health insurance premiums through the sick leave account would likely be considered in determining his living expenses and his ability to pay maintenance or child support. The vacations in Wall were not considered as income for such a matter because they were not assets used for necessities like fuel or food. See id. at 602-03. The Wall court explained that if the respondent took the vacations, he did not "free up money that he would otherwise have to expend." Id. It would be a different matter if one were considering the necessity of health insurance coverage.

¶ 17. In summary, we determine that the circuit court's inclusion of the sick leave account as an asset for division was clearly erroneous. This component of the property division is therefore reversed.

B. Deferred Compensation Plan

¶ 18. The circuit court ordered that Alfred's deferred compensation plan be divided by a QDRO. Both parties agree that this was an error because Wis. Stat. § 40.08(1) does not permit the division of a deferred compensation plan pursuant to a QDRO. Section 40.08(1) states: "The benefits payable to . . . any member . . . under any of the benefit plans administered by the department . . . shall not be assignable, either in law or equity, or be subject to execution, levy, attachment, garnishment or other legal process except as specifically provided in this section . . . ." We agree that this statute precludes the division of the plan by a QDRO. Accordingly, we reverse the court's decision as to this part of the property division.

C. Bank Account

¶ 19. Alfred next disputes the court's decision to include the amount of the couple's bank account in his half of the estate. Shortly before the divorce action was filed, Alfred withdrew over $3,000 from the couple's joint checking account, leaving a balance of only $54. He argues that he used these funds for legitimate household purposes and that the record is devoid of evidence to the contrary. In its findings of fact, the court determined that when the divorce was filed, Alfred's gross income was $900 a week and Ilona's gross income was $500 a week. Based on these findings, the court reasoned that Alfred had sufficient funds available to cover these expenses and noted that Ilona had similar expenses because she was responsible for the home mortgage. We conclude that these facts support the court's exercise of discretion in this matter and find no error.

D. Pension Plan

¶ 20. Alfred does not suggest that the court's division of his pension plan was improper. He instead disputes the court's decision to make the division begin on the date Alfred began to receive his pension payments and not the date of the divorce. Generally, marital assets are to be valued and divided as of the date of the divorce. See Bussewitz v. Bussewitz, 75 Wis. 2d 78, 82, 248 N.W.2d 417 (1977). Special circumstances can warrant a deviation from the rule. See Boeder v. Boeder, 103 Wis. 2d 411, 418, 308 N.W.2d 904 (Ct. App. 1981).

¶ 21. Ilona counters that special circumstances were present in this case. She argues that:

[Alfred] never sought leave of the court to modify his temporary maintenance obligation requesting the right to retire. The Temporary Order required Mr. Preiss to pay $75.00 per week based upon his income from the Department of Corrections. When he retired he simply quit paying.

We agree that these facts are sufficient to support the court's determination that special circumstances were present and a deviation from the general rule was warranted. We find no erroneous exercise of discretion on this point.

E. Maintenance

¶ 22. Alfred's next argument concerns the court's decision to hold open a determination on awarding maintenance. He claims that the court should have disregarded his pension payments as income and awarded him maintenance. A court is not precluded from holding open a determination on maintenance. Cf. Lundberg v. Lundberg, 107 Wis. 2d 1, 12, 318 N.W.2d 918 (1982). A court must, however, consider the maintenance factors detailed in Wis. Stat. § 767.26. In its findings of fact, the court explained its reasons for holding open maintenance. The record supports the court's reasoning. We conclude, therefore, that the court properly exercised its discretion regarding the maintenance award.

F. Vehicles’ Valuation

¶ 23. Alfred's final contention regards the value the court placed on the couple's vehicles. The court valued each of the couple's four vehicles at $800. Alfred argues that this was an erroneous exercise of discretion because the court did not explain the reasons for its valuation. We choose not to address this argument in detail because, even if an error were found, it would only be de minimus. See Brevak v. Brevak, 90 Wis. 2d 556, 565, 280 N.W.2d 329 (Ct. App. 1979). The vehicles' valuation is affirmed.

Conclusion

¶ 24. We affirm the circuit court's decision to include the bank account funds as part of Alfred's estate, to order the pension plan divided as of the date Alfred began receiving it, to hold open maintenance and to value the vehicles at $800 each. However, we conclude that the court erroneously exercised its discretion by considering the sick leave account an asset of the marital estate and by ordering the deferred compensation plan to be divided pursuant to a QDRO. We reverse these two components of the property division and remand for further proceedings consistent with this opinion.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.


author: ROGGENSACK, J.

text:
    In the Matter of the Attorney Fees re: Crawford County, Plaintiff-Respondent, v. Ben Masel, Defendant-Appellant.
    Court of Appeals

      No. 99-1055.

      Submitted on briefs February 16, 2000.

    Decided July 27, 2000.

    2000 WI App 172
    (Also reported in 617 N.W.2d 188.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jeff Scott Olson of The Jeff Scott Olson Law Firm, S.C. of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Scott G. Thomas of Law Offices of Scott G. Thomas of Milwaukee.
    Before Dykman, P.J., Eich and Roggensack, JJ.
   ROGGENSACK, J.

¶ 1. Ben Masel appeals from a judgment awarding him attorney's fees under 42 U.S.C. § 1988 (1994), after he successfully challenged Crawford County's large assembly ordinance. He claims that the circuit court erred in establishing an hourly rate for his attorney's services at $175 per hour because the affidavits before the court demonstrated that the reasonable rate for his attorney was $285 per hour. Because we conclude that the record does not support $175 per hour as a reasonable rate for his attorney's services, we reverse that portion of the judgment and remand this matter to the circuit court to set an hourly rate consistent with this opinion.

BACKGROUND

¶ 2. Ben Masel was the promoter and organizer of Weedstock 1997, a political and social gathering to build support for the liberalization of the agricultural production of hemp, the medical use of marijuana and the elimination of penalties for the recreational use of marijuana. Weedstock was held in Crawford County over a four-day period and attended by more than 1,000 participants.

¶ 3. Crawford County brought a forfeiture action against Masel for failing to comply with its ordinance regulating large assemblies. Masel filed a counterclaim alleging that the ordinance was unconstitutional and that its application to him by the County violated 42 U.S.C. § 1983. On motions for summary judgment, the court ruled that parts of the ordinance were unconstitutional and dismissed the ordinance prosecution against Masel. Masel then filed an application for attorney's fees under 42 U.S.C. § 1988. Masel's attorney, Jeff Scott Olson, sought payment for 91.3 hours of work at $285 per hour. Olson submitted his own affidavit attesting to his skill and experience as a civil rights attorney and stating that his normal billing rate for paying clients was $285 per hour. Olson also submitted the affidavits of several other prominent civil rights attorneys who averred that they had or were personally familiar with billing rates between $200 and $295 per hour for civil rights cases.

¶ 4. The County claimed that the rate of $285 per hour was unreasonable. In support of its claim, it submitted the affidavit of R. Scott Ritter, who was an Assistant City Attorney for the City of Milwaukee from 1976 until 1989. Ritter opined that an hourly rate of $150 to $175 was more appropriate than the $285 requested by Olson. The circuit court determined that the amount of hours expended, 91.3 hours, was reasonable. This has not been challenged on appeal. However, it concluded that $285 per hour for Olson was unreasonable, and it reduced his billing rate to $175 per hour. Masel appeals.

DISCUSSION

Standard of Review.

¶ 5. An award of attorney's fees under 42 U.S.C. § 1988 is within the discretion of the circuit court, and a circuit court's determination will be reversed only when there has been an erroneous exercise of discretion. See Hartman v. Winnebago County, 216 Wis. 2d 419, 427-28, 574 N.W.2d 222, 227 (1998). When we review a discretionary decision, we examine the record to determine if the circuit court logically interpreted the facts, applied the proper legal standard, and used a demonstrated rational process to reach a conclusion that a reasonable judge could reach. See State v. Keith, 216 Wis. 2d 61, 69, 573 N.W.2d 888, 892-93 (Ct. App. 1997).

Attorney's Fees.

¶ 6. Title 42 U.S.C. § 1988 provides that in federal civil rights actions "the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs." In the present case, the parties agree that Masel was a prevailing party on his 42 U.S.C. § 1983 claim. The only dispute before us on appeal is whether the court erred in establishing an hourly rate of $175 per hour as a reasonable rate.

¶ 7. In Hensley v. Eckerhart, 461 U.S. 424 (1983), the Supreme Court considered whether a partially prevailing party was entitled to recover attorney's fees under 42 U.S.C. § 1988. In analyzing whether a particular attorney's fee is reasonable, the Court stated that "[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." See Hensley, 461 U.S. at 433. The Court explained that this calculation provided an objective basis for valuing a lawyer's services. See id. Additionally, the Court noted that it was the fee applicant's affirmative obligation to submit evidence supporting the hours worked and the rates claimed. See id.

¶ 8. Shortly after the Court decided Hensley, it considered whether Congress intended attorney's fee awards made pursuant to 42 U.S.C. § 1988 to be calculated according to prevailing market rates. See Blum v. Stenson, 465 U.S. 886 (1984). The Blum Court concluded that the appropriate measure of a reasonable attorney's fee should be based on "the prevailing market rates in the relevant community...." See id. at 895. In so doing, the Court recognized the difficulty of determining the market rate for attorneys. However, it noted that the rates charged in private representations could provide relevant comparisons, stating:

In seeking some basis for a standard, courts properly have required prevailing attorneys to justify the reasonableness of the requested rate or rates. To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence — in addition to the attorney's own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. A rate determined in this way is normally deemed to be reasonable, and is referred to — for convenience — as the prevailing market rate.

Id. at 895 n.ll.

¶ 9. In subsequent cases, the Supreme Court has "repeatedly stressed that attorney's fees awarded under this statute are to be based on market rates for the services rendered." Missouri v. Jenkins, 491 U.S. 274, 283 (1989); see also Blanchard v. Bergeron, 489 U.S. 87, 94 (1989). The Court has explained that a successful plaintiff is entitled to a "fully compensatory" attorney's fee that is comparable to what fee-paying clients would pay. See Jenkins, 491 U.S. at 286 (citations omitted). The Court reasoned that calculating fees in this way is necessary "to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances . . . ." City of Riverside v. Rivera, 477 U.S. 561, 578 (1986). Furthermore, it has emphasized that the lodestar calculation is more than a mere rough guess; instead, once an applicant has carried his burden of showing that a claimed rate and number of hours are reasonable, "the resulting product is presumed to be the reasonable fee contemplated by § 1988." See Blum, 465 U.S. at 897.

¶ 10. To support his application for attorney's fees, Masel submitted Olson's affidavit outlining his skill and experience in civil rights cases. Olson averred that he has been practicing law since 1976 and his practice throughout his career has consisted primarily of civil rights litigation. He also attested that his hourly billing rate for paying clients was $285 per hour and that a majority of his income comes from clients paying his billing rate of $285 per hour. Additionally, his affidavit included a list of clients that currently pay his full billing rate.

¶ 11. Masel also submitted affidavits from four other civil rights attorneys: Charles Barnhill, Michael R. Fox, Percy L. Julian and Curry First. Each attested to his experience in civil rights litigation. Additionally, Barnhill averred that his hourly rate was $285 and that he had been awarded that rate in a civil rights case brought in the Western District of Wisconsin. Fox averred that his current billing rate was $295 per hour and in 1995 he had been awarded $225 per hour (his billing rate at the time) in a civil rights case. Julian averred that his billing rate was $240 per hour. He also attested that he was aware of the customary hourly rates of senior attorneys in major metropolitan areas of Wisconsin who engage in federal litigation and that, in his experience, such attorneys charge between $200 and $290 per hour. Finally, First averred that Olson enjoyed a statewide reputation as one of the best civil rights lawyers in Wisconsin. All four attorneys (Barn-hill, Fox, Julian and First) asserted that $285 per hour was a reasonable rate for Olson's services based upon the prevailing market rates and Olson's level of experience.

¶ 12. In response to Masel's request for fees, the County submitted the affidavit of Ritter. He averred that: (1) he is an attorney licensed in Wisconsin; (2) he has been practicing law since 1975; (3) he was an Assistant City Attorney for Milwaukee from 1976 to 1989 and was primarily responsible for defending civil rights actions; (4) since 1989, he has continued to defend actions brought under 42 U.S.C. § 1983; (5) he has been qualified twice to testify as an expert witness in civil rights attorney's fees cases; (6) he is familiar with hourly rates sought by and awarded to civil rights attorneys under 42 U.S.C. § 1988; and (7) given Olson's skill level, an hourly rate of $150 to $175 would be "more appropriate" than the $285 requested. After he gave his affidavit, Ritter's deposition was taken, and it was also submitted to the circuit court by Masel.

¶ 13. At a hearing on the matter, the circuit court ordered that Olson be compensated at $175 per hour. In explaining its decision, the court stated:

For Mr. Olson, he's billing at the rate of $285 an hour and he has some affidavits of attorneys to support that rate and the county has an affidavit of an attorney to say that the rate should be much less than that, such as $150 to $175 an hour.
I think one of the factors to be considered is that this type of constitutional issue often requires some special skill. Often the attorneys who practice these types of cases do have such special skills or area of expertise. Now, we're way over here in Podunk in the rural area and nobody over here charges anything near that. But, I realize that the standard of Crawford County is not the standard that I'm going by. That it's more of a statewide standard. However, I just [cannot] order $285 an hour. It is not reasonable under all the circumstances here. I think that the maximum that should be awarded to Mr. Olson should be $175 per hour, based in part at least on what Mr. Ritter says but also on the totality of what I've heard and just my own feeling that $285 is not reasonable for this case.

Therefore, the circuit court based its decision to award $175 per hour upon Ritter's affidavit and its own belief that $285 per hour was not reasonable. However, those bases are not sufficient to support the circuit court's exercise of discretion in this case.

¶ 14. In order to determine a reasonable rate for Olson's services, the circuit court was obligated to determine the prevailing market rate for an attorney with Olson's level of skill and experience. The Supreme Court has indicated that hourly rates charged by other attorneys of comparable skill can be one indicator of a particular attorney's market rate. Masel met his initial burden of supporting his fee application by providing an affidavit from Olson testifying to his experience and the billing rate paid by the majority of his paying clients and by providing the rates of civil rights attorneys of comparable skill. Once Masel did so, if the County wished to challenge this rate, it was required to put forth factual evidence that the prevailing market rate for an attorney with comparable skill was not consistent with the proof offered by Masel.

¶ 15. However, the County did not present sufficient evidence to refute the prevailing market rate asserted on behalf of Olson's fees. Ritter's affidavit provides only curt conclusions without averring the factual predicates necessary to support those conclusions. Specifically, Ritter asserts "[w]ith respect to the claimed 'currently regular hourly rate of $285.00 per hour'. . . requested by attorney Olson, it is my opinion and belief that, given attorney Olson's level of competence and experience, an hourly rate of $150-$175 would be more appropriate." Ritter does not explain what is meant by "more appropriate," nor does he attest that the "more appropriate" rate is the prevailing market rate. Furthermore, in his deposition taken after the submission of his affidavit, Ritter admitted that he did not know the current rates of any civil rights lawyers; that the last time he had been involved in a question concerning such fees was about eight years earlier; and that, at the time, $225 had been determined to be a reasonable hourly rate. Ritter's affidavit was inadequate to refute Masel's evidence of the prevailing market rate, and therefore the circuit court erred in relying upon it as a basis for establishing $175 per hour as a reasonable rate for Olson's services.

¶ 16. The other basis relied upon by the circuit court to support its establishment of $175 as the reasonable hourly rate was the court's own belief that $285 per hour was not reasonable. Although we have recognized that a trial judge has the expertise to evaluate the reasonableness of attorney's fees, we have also held that when the reasonableness of the fees is contested, the expertise of a trial judge is not a substitute for evidence. See Peterson v. Gauger, 148 Wis. 2d 231, 237, 434 N.W.2d 819, 821 (Ct. App. 1988). Additionally, the Seventh Circuit in evaluating the reasonableness of fees under 42 U.S.C. § 1988 has held that, although a trial court has wide discretion in calculating an appropriate fee award, if an hourly rate or number of hours is reduced, "a clear explanation must be provided." McNabola v. Chicago Transit Auth., 10 F.3d 501, 518 (7th Cir. 1993) (citation omitted). The Seventh Circuit has also reiterated the prohibition against a trial court "eyeballing" a fee request and arbitrarily reducing a fee request by the prevailing party without evidence to support the reduction. See People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1314 (7th Cir. 1996).

¶ 17. Although we are not bound by these Seventh Circuit opinions, see Elections Bd. v. Wisconsin Mfrs. & Commerce, 227 Wis. 2d 650, 670 n.19, 597 N.W.2d 721, 731 n.19 (1999), they are persuasive. Therefore, we conclude that given the ample factual and opinion evidence submitted by Masel that Olson's billing rate was consistent with the current market rate and therefore presumptively reasonable and, absent any description by the circuit court of the facts it relied on to conclude that $285 per hour was unreasonable, it erroneously exercised its discretion.

¶ 18. Because we conclude that the circuit court erroneously exercised its discretion in establishing $175 per hour as a reasonable rate for Olson's services, we reverse and remand that portion of the judgment. The circuit court on remand should review the affidavits submitted by Masel and set a market rate consistent with that evidence. In his affidavit, Julian averred that the billing rates for civil rights attorneys with skills and experience comparable to Olson were between $200 and $290 per hour. Additionally, three of the civil rights attorneys who submitted affidavits in support of Olson testified that their billing rates were between $240 and $295 per hour. Accordingly, on remand the circuit court's determination of the reasonable rate for Olson's services should fall somewhere between $200 and $295 per hour based upon the evidence of market rate in the community that is in the record before us. We also direct the circuit court to set a reasonable fee for Olson's services in this appeal.

CONCLUSION

¶ 19. Because we conclude that the record does not support $175 per hour as a reasonable rate for Olson's services, we reverse that portion of the judgment and remand this matter to the circuit court to set an hourly rate consistent with this opinion.

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

       All cites to the United States Code are to the 1994 version unless otherwise noted.

       The County also sued Arnold Harris, on whose property the gathering took place. Harris is not a party to this appeal.

       The record before us does not show that any proof was offered that the County's attempt to enforce the ordinance contravened 42 U.S.C. § 1983. However, the County apparently has conceded liability on the § 1983 claim, even though the trial court rendered only a declaratory judgment that certain portions of the ordinance were unconstitutional and therefore unenforceable.

       We initially note that because the award of attorney's fees in this matter is pursuant to a federal statute, we look to federal caselaw for the standards governing this type of award. See Thompson v. Village of Hales Corners, 115 Wis. 2d 289, 308 n.6, 340 N.W.2d 704, 713 n.6 (1983).

       The product of multiplying the number of hours reasonably expended by the reasonable hourly rate has become known as the "lodestar" calculation. See, e.g., City of Riverside v. Rivera, 477 U.S. 561, 568 (1986). The lodestar may be adjusted by applying the factors stated in Johnson v. Georgia Hwy.

        Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), which have been adopted by the Supreme Court. See Riverside, 477 U.S. at 568 n.3.

       By so ruling, we do not conclude that a circuit court's expertise in evaluating evidence concerning the rate charged for legal fees in the community is irrelevant. However, when an attorney provides substantial factual and opinion evidence to prove the prevailing market rate in the community, the court cannot rely solely on its own experience to conclude that the fee is unreasonable. To rule otherwise would permit a circuit court to make a decision that is not based on facts in the record and would deny the party seeking fees the opportunity to challenge the facts upon which the circuit court's decision is based.