author: NETTESHEIM, J.

text:
    State of Wisconsin ex rel. Stanley Washington, Petitioner-Appellant, v. David H. Schwarz, Administrator, Division of Hearings and Appeals, Respondent-Respondent.
    Court of Appeals

      No. 00-0004.

      Submitted, on briefs July 12, 2000.

    Decided October 4, 2000.

    2000 WI App 235
    (Also reported in 620 N.W.2d 414.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of James L. Fullin, assistant state public defender.
    On behalf of the respondent-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and James M. Freimuth, assistant attorney general.
    Before Brown, P.J., Nettesheim and Snyder, JJ.

       Petition to review denied.

   NETTESHEIM, J.

¶ 1. The Department of Corrections (department) sought to revoke Stanley Washington's probation based principally upon his uncorroborated extrajudicial, admission that he had committed a sexual assault while he was on probation. Relying on this evidence, an administrative law judge (ALJ) revoked Washington's probation. Upon review, the Division of Hearings and Appeals (division) and the circuit court respectively upheld the revocation decision.

¶ 2. On appeal, Washington challenges the sufficiency of the evidence to support the revocation decision. He contends that the confession corroboration requirement applicable to a criminal proceeding should also apply in a probation revocation proceeding. Because his admission was not independently corroborated, Washington argues that the probation revocation order is not supported by substantial evidence. Washington also contends that his admission did not constitute substantial evidence because he was mentally ill at the time he made the statement.

¶ 3. We hold that the confession corroboration rule does not apply in a probation revocation proceeding. And because the circumstances surrounding Washington's extrajudicial admission otherwise demonstrate that the admission was trustworthy and reliable, we hold that substantial evidence supported the revocation order. For the same reason, we reject Washington's claim that the evidence of his mental health history renders the evidence insufficient.

Facts and Procedural History

¶ 4. The historical facts in this case are not in dispute. On January 26, 1993, Washington was convicted of two counts of second-degree sexual assault against a female victim. He was sentenced to two concurrent eight-year prison terms. However, the sentences were stayed, and Washington was placed on ten years' probation with attendant conditions of probation.

¶ 5. The event that precipitated the department's decision to revoke Washington's probation occurred on September 12,1998, during a relapse prevention group meeting for sex offenders. At that meeting, Washington disclosed to other group members and to the group leader, Joseph Henger, that he had raped a female member of his church while on probation. Henger reported the incident to Washington's probation agent. When questioned about the incident by his probation officer, Washington declined to answer and refused to provide a written statement. As a result, the department initiated probation revocation proceedings.

¶ 6. The department cited three grounds in support of the revocation request: (1) that Washington had committed a sexual assault during the period of his probation in violation of Rule 1 of the rules of probation; (2) that Washington had refused to provide his probation agent with a verbal or written statement regarding the disclosure he made at his September 12 group meeting in violation of Rules 1, 4 and 13; and (3) that Washington had engaged in a sexual relationship without first discussing the matter or obtaining his probation agent's approval in violation of Rules 1 and 15D.

¶ 7. Washington contested the revocation and an ALJ conducted a revocation hearing over a period of four days. Washington was represented by counsel at the hearing. In addition to other witnesses, Henger and certain members of the relapse prevention group testified at the hearing.

¶ 8. In the decision revoking Washington's probation, the ALJ made the following findings of fact. Shortly before the original sentencing in this case, Washington was baptized as a member of the Twenty-Third Avenue Church of Christ. Thereafter, he became a participating church member and served as the church's financial secretary. As part of his probation supervision, Washington was involved in a sex offender treatment program. Eventually, he graduated to the relapse prevention group. On August 15, 1998, Washington revealed to the group that he was having marital problems related to his "womanizing" at his church. On August 29, Washington stated to the group that he had used his church position to procure women and that he had raped five women during his adult life.

¶ 9. At the September 12, 1998, group meeting, Washington again reported to the group that he had raped five women. In addition, he provided a detailed account of a particular rape of a female church member which had occurred during his probationary period. During this meeting, Washington did. not appear any different than he had at previous group meetings and his "demeanor and presentation" were consistent with that displayed at the two previous meetings when he spoke of his "womanizing" and the five prior rapes. Washington believed that his disclosures were confidential and could not be revealed. However, all of the participants in the group had been previously warned by Henger, the group leader, that he was under a duty to report any "admissions of crimes or violations" to the department.

¶ 10. When questioned by his probation officer about the admission, Washington refused to provide a verbal or written statement because he was afraid of the custodial consequences and he did not want to incriminate himself. However, Washington did tell his probation officer that his statements during the group meetings were confidential and not subject to sanction by the department. Although Washington refused to provide his probation officer with any statements regarding his admission, neither did he deny the admission.

¶ 11. The ALJ's findings also addressed the evidence concerning Washington's mental illness. During the time periods relevant to this case, Washington was treating with Dr. Pushparanee Babusukumar, a psychiatrist. During the fall of 1996, Washington experienced a psychotic episode. At that time, Babusukumar determined that Washington was suffering from "major depression with psychotic features." In response, Babusukumar prescribed an antipsychotic medication which Washington took until the fall of 1997 when Babusukumar discontinued the prescription. Babusukumar determined to a reasonable degree of medical certainty that Washington was psychotic when she saw him in October 1998, but she could not state that Washington was psychotic during September when he had made the crucial admission in this case. On October 22,1998, Washington was committed under ch. 51 of the Wisconsin Statutes and antip-sychotic medications were again prescribed. At the revocation hearing, Washington was mentally stable.

¶ 12. During a break at one of the revocation hearings, Washington told Henger that he was not psychotic during the September 12, 1998 group meeting and he shook his head affirmatively when Henger asked him if he had committed the sexual assault while on probation.

¶ 13. Finally, the ALJ determined that all of the witnesses, except for Washington, who testified during the hearing were truthful and reliable.

¶ 14. Based on these findings, the ALJ revoked Washington's probation. Washington appealed to the division, challenging the sufficiency of the evidence and pointing to the following additional evidence. First, no person had come forward or been identified as a victim of the sexual assault that Washington disclosed to the group. Second, the Reverend John Wright, Washington's pastor, testified that he had questioned the female members of the congregation and none had reported a sexual assault by Washington. Third, contrary to the testimony of Henger and the group members that Washington's admission included a statement that he had told Wright about the sexual assault, Wright testified that Washington never told him of any sexual assault that he had committed while on supervision. Finally, Washington points to the testimony of Wright and his wife that Washington had been acting strangely for some time prior to the September 12 meeting.

¶ 15. The division rejected Washington's argument and sustained the ALJ's decision in an amended appeal decision. Washington then filed a petition for a writ of certiorari with the circuit court seeking review of the revocation order. After reviewing the record and briefs submitted by the parties, the court held that credible and substantial evidence supported the revocation order. The court dismissed Washington's certiorari action. Washington further appeals to this court.

Standard of Review

¶ 16. "[Pjrobation revocation is the product of an administrative, civil proceeding." State ex rel. Cramer v. Wisconsin Court of Appeals, 2000 WI 86, ¶ 28, 236 Wis. 2d 473, 613 N.W.2d 591. Appeal of such a decision is accomplished by a writ of certiorari to the circuit court, see id., and is not a de novo review. See Van Ermen v. DHSS, 84 Wis. 2d 57, 64, 267 N.W.2d 17 (1978). On review to this court, we apply the same standard of review as the circuit court. See State ex rel. Cox v. DHSS, 105 Wis. 2d 378, 380, 314 N.W.2d 148 (Ct. App. 1981). Review by certiorari of a revocation decision is limited to the following questions:

(1) Whether the board kept within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question.

Van Ermen, 84 Wis. 2d at 63 (citation omitted).

¶ 17. In this case, only the fourth question is implicated because Washington is challenging the sufficiency of the evidence to support the revocation decision. "[T]he department has the burden to prove the allegation of the violation by a preponderance of the evidence." State ex rel. Thompson v. Riveland, 109 Wis. 2d 580, 585, 326 N.W.2d 768 (1982). When the sufficiency of the evidence is challenged, we are limited to the question of whether there is substantial evidence to support the department's decision. See id. at 585-86. This is described as a "low burden of proof." State ex rel. Eckmann v. DHSS, 114 Wis. 2d 35, 43, 337 N.W.2d 840 (Ct. App. 1983). Substantial evidence is the "quantity and quality of evidence which a reasonable [person] could accept as adequate to support a conclusion." Id. (citation omitted). However, assigning weight to the evidence in a revocation hearing is the province of the department. See Van Ermen, 84 Wis. 2d at 64.

Discussion

¶ 18. Washington argues that the revocation of his probation is grounded solely upon his uncorroborated extrajudicial admission. He contends that such an admission cannot constitute substantial evidence and, as a result, the revocation decision is arbitrary and capricious.

Confession Corroboration Requirement and Probation Revocation

¶ 19. Our supreme court restated the confession corroboration requirement in Holt v. State, 17 Wis. 2d 468, 117 N.W.2d 626 (1962):

All the elements of the crime do not have to be proved independently of an accused's confession; however, there must be some corroboration of the confession in order to support a conviction. Such corroboration is required in order to produce a confidence in the truth of the confession. The corroboration, however, can be far less than is necessary to establish the crime independently of the confession. If there is corroboration of any significant fact, that is sufficient under the Wisconsin test.

Id. at 480 (emphasis added). Washington contends that the record in this case does not reveal "corroboration of any significant fact" of the confession. See id. He acknowledges that, to date in Wisconsin, the confession corroboration rule has been applied only in criminal prosecutions. But he argues that the rule should apply in a probation revocation proceeding as well.

¶ 20. We first observe that a probation revocation proceeding is a civil proceeding. See Cramer, 2000 WI 86 at ¶ 28.

¶ 21. The purpose of the confession corroboration rule is to produce confidence in the truth of the confession, see Holt, 17 Wis. 2d at 480, so that a criminal conviction is not grounded on the admission or confession of the accused alone. See State v. Verhasselt, 83 Wis. 2d 647, 661, 266 N.W.2d 342 (1978). Obviously, these concerns are not present in a probation revocation setting since the probationer is already convicted.

¶ 22. Moreover, unlike a criminal prosecution in which the absolute liberty rights of the accused are paramount, a revocation proceeding addresses the conditional liberty status of the probationer. See State ex rel. Flowers v. DHSS, 81 Wis. 2d 376, 386, 260 N.W.2d 727 (1978). Also unlike a criminal prosecution, the interests and protection of the public are important considerations in a revocation proceeding. See id. at 385. In making the revocation determination, the department is concerned not only with the threats to the safety of the general community, but also with behavior that is inimical to the probationer's rehabilitation. See id. "The ends of parole revocation are therefore distinct from the punitive functions of the criminal law, and the revocation decision requires wide-ranging consideration of intangible non-legal factors irrelevant to a criminal prosecution." Id.

¶23. These fundamental differences have also produced more relaxed procedures in a revocation proceeding. For instance, a revocation proceeding does not require a judicial hearing, the rules of evidence do not strictly apply, and the privilege against self-incrimination does not preclude consideration of an inculpatory statement or a refusal to answer questions. See id. at 384. In summary, the protections afforded an accused in a probation revocation proceeding are lesser than those afforded in a criminal prosecution.

¶ 24. For these reasons, we decline to extend the confession corroboration requirement to a probation revocation proceeding. But this does not mean that a probationer's extrajudicial admission is per se an adequate basis for revocation. This is because the substantial evidence test requires a "quantity and quality of evidence which a reasonable [person] could accept as adequate to support a conclusion." Eckmann, 114 Wis. 2d at 43 (citation omitted). In a case such as this, this means that the admission must carry sufficient indicia of reliability or credence such that the fact finder can confidently rely upon it to support the conclusion that revocation is appropriate and necessary.

The Substantial Evidence Test

¶'25. Having rejected Washington's argument that we should apply the confession corroboration requirement, we now measure the evidence in this case against the substantial evidence test.

¶ 26. We begin by recalling our proper appellate jrole. It is the province of the department, not this court, to weigh the evidence and our role is not to substitute our view of the evidence for that of the department. See Van Ermen, 84 Wis. 2d at 64. Thus, as with any other fact finder, we properly defer to the department's credibility findings. See Day v. State, 92 Wis. 2d 392, 400, 284 N.W.2d 666 (1979).

¶ 27. In conducting this analysis, we begin with the ALJ's credibility determinations. Washington testified at the revocation hearings, denying that he had made the admission at the September 12, 1998 group meeting, denying that he had made the further admission to Henger at a break during one of the revocation hearings, and denying that he had invoked his right against self-incrimination in his discussions with his probation officer. The ALJ rejected these denials and instead adopted the testimony of the countervailing witnesses — Henger, the members of the group and the probation officer — as to each of these events. Moreover, the ALJ's rejection of Washington's credibility was not limited to just these three episodes. Rather, the ALJ rejected all of Washington's testimony on credibility grounds.

¶ 28. Speaking to the reliability of Washington's September 12, 1998 admission, the ALJ observed that Washington believed that the group meetings were confidential as to any statements he would make, thus lending credence to the admission. We agree. The admission came during a therapeutic session of Washington's relapse prevention group. In such a setting, it is reasonable to believe that Washington would feel comfortable enough to let his guard down and tell the truth.

¶ 29. We also observe that Washington's September 12 admission was a continuation of the theme, albeit with more detail, of his prior statements during the August meetings of the group. In those meetings, Washington revealed that he was having trouble in his marriage due to his "womanizing" and that he had previously assaulted five women. This suggests that Washington's later admission on September 12 was not the rambling or outburst of a distorted mind, but a reasoned revelation by-a guilty mind. Washington's admission and related statements also carry reliability because they were uttered as part of a group discussion treatment program designed to prevent sex offenders from relapsing into their prior behavior. Presumably, a member's prior sexual conduct would be a germane topic in such a setting. We also take note that Washington's statement that he had raped five women was at least partially true since in this very case Washington was on probation for two counts of sexual assault against a female victim.

¶ 30. We further note that just as Washington's admissions did not begin with the September 12 statement, neither did they stop there. During the revocation proceedings themselves, at a time when he was mentally stable, Washington told Henger during a break that he was not psychotic during the September 12 meeting and that he was "scared" of going back to prison. Equally important, Washington nodded affirmatively during this conversation in response to Henger's question of whether he had committed a sexual assault while on probation. Henger documented this conversation in a letter to Washington's probation officer, stating that Washington said that his mental illness defense was "purely out of desperation and fear of going back to prison."

¶ 31. The AL J further observed that Washington never denied making his admission to the group when his probation officer twice questioned him about the matter. As noted earlier, the privilege against self-incrimination does not preclude consideration of a refusal to answer questions. See Flowers, 81 Wis. 2d at 384.

¶ 32. Washington's mental health history undoubtedly represents evidence in his favor. But Babusukumar could not testify that Washington was psychotic at the time of his September 12 admission. Nor could she testify how long Washington would have been psychotic prior to her October 22 diagnosis. In addition, the AL J considered the testimony of Henger and the other group members that Washington's appearance and demeanor on September 12 appeared consistent with their prior observations of him. Henger described Washington's admission as occurring in the course of "a normal Stanley Washington conversation" and testified that Washington was oriented as to time and place, could recall what he said in previous treatment groups, and did not appear delusional.

¶ 33. Finally, we again note Washington's conversation with Henger during the revocation proceedings since it also bears on the topic of Washington's mental illness. During this conversation, Washington told Henger that he was not psychotic when he made his September 12 admission and that he was "scared" of going back to prison. This testimony was consistent with the letter Henger had written to Washington's probation agent after this conversation where Henger reported that Washington had told him that "his defense of being psychotic was purely out of desperation and fear of going back to prison."

¶ 34. The absence of an identifiable victim supports Washington's claim. But as the division appropriately noted in its decision, "Women may choose not to report a sexual assault due to fear, embarrassment, or a variety of other reasons." We agree.

¶ 35. In summary, it was the responsibility of the ALJ and the division to weigh the evidence of Washington's claimed psychotic condition against the evidence supporting the reliability and credibility of his admission. See Van Ermen, 84 Wis. 2d at 64. This the ALJ and the division have done, and we are obligated to respect that determination if the evidence otherwise satisfies the substantial evidence test. See id.

¶ 36. We conclude that Washington's September 12, 1998 extrajudicial admission carried sufficient indi-cia of reliability and credence such that the division properly relied on the admission when upholding the ALJ's decision revoking Washington's probation. As such, in the words of the substantial evidence test, the admission represented a "quantity and quality of evidence which a reasonable [person] could accept as adequate to support a conclusion." Eckmann, 114 Wis. 2d at 43 (citation omitted).

Conclusion

¶ 37. We hold that substantial evidence supports the division's revocation of Washington's probation. We affirm the circuit court order dismissing Washington's writ of certiorari.

. By the Court. — Order affirmed.

       The relevant rules of Washington's probation are:
      1. You shall avoid all conduct which is in violation of federal or state statute, municipal or county ordinances or which is not in the best interest of the public welfare or your rehabilitation.
      4. You shall inform your agent of your whereabouts and activities as he/she directs.
      13. You shall provide true and correct information verbally and in writing, in response to inquiries by the agent.
      15. You shall follow any specific rules that may be issued by an agent to achieve the goals and objectives of your supervision. The rules may be modified at any time, as appropriate. The specific rules imposed at this time are:

        D. You shall not enter into any dating, intimate, or sexual relationship with any person without first discussing this with your agent and obtaining your agent's approval.

       Our holding is in accord with the majority of courts that have considered this question, although some of those cases address the corroboration requirement under the law of corpus delecti — not under the specific language of the rule as set out in Holt v. State, 17 Wis. 2d 468, 480, 117 N.W.2d 626 (1962), which requires "corroboration of any significant fact." See State v. Lay, 546 P.2d 41, 42 (Ariz. Ct. App. 1976); Selph v. State, 570 S.W.2d 256, 259 (Ark. 1978); People v. Monette, 25 Cal. App. 4th 1572, 1575 (Cal. Ct. App. 1994) ("[b]ecause the probation revocation hearing differs so substantially from a criminal prosecution, the corpus delicti rule is inapplicable"); State ex rel. Russell v. McGlothin, 427 So. 2d 280, 282 (Fla. Dist. Ct. App. 1983); People v. Woznick, 663 N.E.2d 1037, 1039 (Ill. App. Ct. 1996) ("a trial court may revoke a defendant's probation based solely on defendant's voluntary confession or reliable extrajudicial admission that he violated the conditions of his probation"); Richeson v. State, 648 N.E.2d 384, 389 (Ind. Ct. App. 1995); Shumaker v. State, 431 N.E.2d 862, 864 (Ind. Ct. App. 1982); State v. Generoso, 384 A.2d 189, 192-93 (N.J. Super. Ct. App. Div. 1978); State v. Sanchez, 790 P.2d 515, 516-17 (N.M. Ct. App. 1990); Commonwealth v. Kavanaugh, 482 A.2d 1128, 1133 (Pa. Super. Ct. 1984).

       We recognize that Babusukumar is a trained professional psychiatrist, while Henger is not. Nonetheless, Babusukumar's appointments with Washington typically lasted only twenty minutes and relied heavily on his self-reporting. Henger, on the other hand, testified to seeing Washington "approximately fifty times for an hour and a half each time" between 1995 and 1998 and was aware of his history of depression. So while Henger did not have Babusukumar's degree of expertise, he did have some training in the area of assessing mental health and had significant opportunities to observe Washington. It was for the ALJ and the division to weigh the evidence on this point. See Van Ermen v. DHSS, 84 Wis. 2d 57, 64, 267 N.W.2d 17 (1978).


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    Weber, Leicht, Gohr & Associates, Plaintiff-Respondent, v. Liberty Bank and Kansas Bankers Surety Company, Defendants-Appellants.
    Court of Appeals

      No. 99-1557.

      Oral argument September 20, 2000.

    Decided October 10, 2000.

    2000 WI App 249
    (Also reported in 620 N.W.2d 472.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Victor E. Plantinga of Rose & DeJong, of Brookfield, and Alan V. Johnson and Martha A. Peterson of Sloan, Listrom, Eisenbarth, Sloan & Glassman, L.L.C., of Topeka, Kansas. There was oral argument by Alan V. Johnson.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jeffrey P. Aiken and Mary C. McManus oí Whyte Hirschboeck Dudek S.C., of Milwaukee. There was oral argument by Mary C. McManus.

    An amicus curiae brief was filed by John E. Knight and James E. Bartzen of Boardman, Suhr, Curry & Field LLP, of Madison, for The Wisconsin Bankers Association.
    Before Wedemeyer, P.J., Fine and Schudson, JJ.

       Petition to review denied.

   FINE, J.

¶ 1. Liberty Bank and Kansas Bankers Surety Company appeal from a judgment entered on a jury verdict awarding Weber, Leicht, Gohr & Associates some $66,000 plus costs. Liberty and Kansas Bankers contend that the Uniform Commercial Code as adopted in Wisconsin bars the judgment. We agree.

I.

¶ 2. Weber is an advertising agency that suffered significant embezzlement by one of its employees, who forged and altered the company's checks. The total loss was a little more than $120,000.

¶ 3. Weber had a checking account with Liberty. Weber sued Liberty under various legal theories, claiming in essence that Liberty was responsible for the loss because Liberty did not discover the forgeries or alterations. Among the legal theories Weber asserted against Liberty was strict-liability misrepresentation — claiming that Liberty represented falsely to Weber that it would examine each of the checks drawn on Weber's account and compare the signatures on the checks with the signatures provided by Weber to Liberty on the bank's signature cards. The jury found against Weber on all of its claims but the one asserting strict-liability misrepresentation, finding, as material to that claim, that:

• Liberty made "a representation of fact. .. that it would compare all checks drawn on [Weberfs account against the signature card to determine if such checks were properly authorized prior to payment";
• Liberty's representation was "untrue";
• Liberty made "the representation as a statement based on its personal knowledge or in circumstances in which it necessarily ought to have known the truth or untruth of the representation";
• Liberty had "an economic interest in the transaction which was the subject of such representation";
• Weber believed the "representation to be true and rel[ied] on it to its monetary damage"; and
• Weber "justifiably rel[ied] on the representation to its monetary damage."

These findings satisfy the elements of a strict-liability misrepresentation claim. See Reda v. Sincaban, 145 Wis. 2d 266, 268-269, 426 N.W.2d 100, 102 (Ct. App. 1988) (Elements of a strict-liability misrepresentation claim are "(1) that the defendant made a representation of fact; (2) that such representation of fact was untrue; (3) that the defendant made the representation as a fact based on his own personal knowledge, or in circumstances in which he necessarily ought to have known the truth or untruth of the statement; (4) that the defendant had an economic interest in the transaction; and (5) that the plaintiff believed such representation to be true and relied on it.").

II.

¶ 4. Although the parties have spent significant efforts debating whether a claim for strict-liability misrepresentation is per se displaced by the provisions of the Uniform Commercial Code, and, if not, both whether a bank has a legal duty to disclose its check-handling procedures, and whether it was a question of fact for the jury to decide if Liberty voluntarily assumed a duty to disclose its check-handling procedures to Weber, we do not discuss these intriguing issues because in our view any such claim is trumped by Weber's failure to comply with the responsibilities imposed on bank customers by Wis. Stat. §§ 403.406 and 404.406. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground").

¶ 5. The parties agree that this action is governed by the Uniform Commercial Code as adopted in Wisconsin, specifically those provisions found in Wis. Stat. chs. 403 and 404 that govern the relationship between a bank and its customers. See Wis. Stat. §§403.102(1), 403.102(2), 404.102, and 404.103(1) (1997-98); Winkie, Inc. v. Heritage Bank of Whitefish Bay, 99 Wis. 2d 616, 622, 299 N.W.2d 829, 833 (1981). As Weber argues, however, certain pre-Code remedies survive enactment of the Code, so long as those remedies do not conflict with specific Code provisions. See Wis. Stat. § 401.103. Section 401.103 provides:

Unless displaced by the particular provisions of chs. 401 to 411 the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions.

Weber contends that this provision preserves its strict-liability misrepresentation claim.

¶ 6. The checks involved in this case span two versions of the applicable provisions of Wisconsin's version of the Uniform Commercial Code. The changes were effective August 1, 1996. See 1995 Wis. Act 449, §§ 100, 101. Given the jury's findings, however, any distinction here between the provisions is immaterial. For the sake of consistency, we refer to the current version of the provisions in the body of this opinion, and will place in footnotes the earlier version. WISCONSIN Stat. § 401.103 is the same today as it was before August 1,1996.

¶7. Wisconsin Stat. §403.406 (1997-98) provides, with the part material to our analysis in italics:

(1) A person whose failure to exercise ordinary care substantially contributes to an alteration of an instrument or to the making of a forged signature on an instrument is precluded from asserting the alteration or the forgery against a person who, in good faith, pays the instrument or takes it for value or for collection.
(2) Under sub. (1), if the person asserting the preclusion fails to exercise ordinary care in paying or taking the instrument and that failure substantially contributes to loss, the loss is allocated between the person precluded and the person asserting the preclusion according to the extent to which the failure of each to exercise ordinary care contributed to the loss.
(3) Under sub. (1), the burden of proving failure to exercise ordinary care is on the person asserting the preclusion. Under sub. (2), the burden of proving failure to exercise ordinary care is on the person precluded.

In connection with this provision (and its predecessor quoted in footnote 3), the jury found:

• Weber did not "exercise ordinary care" in connection with the forged and altered checks and that this failure "substantially contributefd] to the alteration or forgery";
• Liberty paid the "checks in 'good faith'
• Liberty exercised "ordinary care in paying" the checks.

¶ 8. Wisconsin Stat. § 404.406(3) (1997-98) provides that if a bank makes available to its customer "a statement of account" that complies with Wis. Stat. § 404.406(1) (1997-98) showing the bank's payment of items from the customer's account, "the customer must exercise reasonable promptness in examining the statement or the items to determine whether any payment was not authorized because of an alteration of an item or because a purported signature by or on behalf of the customer was not authorized." The analogue to this provision in the pre-August 1996 version was in Wis. Stat. § 404.406(1) (1991-92), which is set out in this footnote.

¶ 9. Wisconsin Stat. §404.406(4) gives to the bank immunity from liability for a customer's loss if the customer does not timely examine the checks that the bank paid, so long as the bank paid the checks in good faith. This section provides, as material here:

If the bank proves that the customer failed, with respect to an item, to comply with the duties imposed on the customer by sub. (3), the customer is precluded from asserting all of the following against the bank:
(b) The customer's unauthorized signature or alteration by the same wrongdoer on any other item paid in good faith by the bank if the payment was made before the bank received notice from the customer of the unauthorized signature or alteration and after the customer had been afforded a reasonable period of time, not exceeding 30 days, in which to examine the item or statement of account and notify the bank.

The analogue to this provision in the pre-August 1996 version was in Wis. Stat. §§ 404.406(2) & (3) (1991-92), which are set out in this footnote. In connection with Wis. Stat. § 404.406 (1997-98) (and its predecessor quoted in footnotes 5 and 6), the jury found:

• Weber did not "exercise reasonable promptness in examining the corresponding bank statement and canceled checks to determine whether payment was authorized";
• "Based on the bank statement and items provided," Weber should have "reasonably discovered the unauthorized payment[s]";
• Weber did not "promptly notify the Bank of the relevant facts."
• Liberty paid the "checks in 'good faith'
• Liberty exercised "ordinary care in paying" the checks;

¶ 10. Wisconsin Stat. §§ 403.406 and 404.406 (1997-98) and their predecessors are, essentially, echoes of pre-Code law. See Winkie, 99 Wis. 2d at 623, 299 N.W.2d at 833 ("equitable principles akin to estoppel ... have been incorporated into the Uniform Commercial Code"); Wussow v. Badger State Bank, 204 Wis. 467, 471-472, 234 N.W. 720, 721-722 (1931) (customer who does not timely examine bank statement may not hold liable bank that pays forged checks unless the bank is negligent in making the payment), reh'g denied, 204 Wis. 467, 236 N.W. 687 (1931). At oral argument, Weber conceded, as it had to, that the jury's findings were its determination that Weber did not comply with the obligations imposed by the material provisions of §§ 403.406 and 404.406 (1997-98) and their predecessors, that Liberty paid the checks in "good faith," and that there was sufficient evidence presented at the trial supporting those findings.

¶ 11. Under the statutes that we have examined in this opinion, and under the pre-Code law, if a customer does not timely take the reasonable precautions to protect itself, and the bank has paid the items in good faith, the customer is, in the word of the Code, "precluded" from holding the bank liable for damages that the customer's vigilance would have prevented. See Winkie, 99 Wis. 2d at 626, 299 N.W.2d at 835. Stated another way, so long as the bank pays the items in "good faith," compliance with these duties by the customer is a "precondition to a customer's lawsuit against a bank." See Borowski v. Firstar Bank Milwaukee, 217 Wis. 2d 565, 569, 579 N.W.2d 247, 249 (Ct. App. 1998) (applying Wis. Stat. § 404.406(4) (1991-92)).

¶ 12. Although framed as a misrepresentation claim, Weber seeks to hold the bank liable for paying the checks despite the "unauthorized signature or alteration." Legal analysis of a claim focuses on the essence of the alleged wrong for which a plaintiff seeks redress and not on either the name or the legal theory applied to that claim. See Strid v. Converse, 111 Wis. 2d 418, 423, 331 N.W.2d 350, 353 (1983) (" '[A] cause of action is not constituted by labeling the operative facts with the name of a legal theory. The operative facts themselves, if they show the invasion of a protected right, constitute the cause of action. What they are called is immaterial.'") (quoted source omitted). Although a claim for misrepresentation may "supplement" the provisions of the Uniform Commercial Code, it may not supplant them. See Wis. Stat. §401.103. Indeed, § 401.103 specifically preserves the pre-Code defense of "estoppel." Thus, irrespective of the angle at which Weber's attempt to recover against Liberty for strict-liability misrepresentations is viewed (either by applying the pre-Code law, including the estoppel principles discussed by Winkie and Wussow to "supplement" the Code, or by requiring Weber to clear the hurdle erected by §§ 403.406 and 404.406(4) (1997-98) and their predecessors as a precondition to application of the pre-Code law), Weber cannot prevail.

By the Court. — Judgment reversed.

       Judgment was only entered against Liberty Bank. Accordingly, all issues that were raised before the trial court in connection with Kansas Bankers Surety Company are moot. An amicus curia brief was filed by the Wisconsin Bankers Association.

       Wisconsin Stat. § 403.102(1) & (2) (1997-98) provide:
      Subject matter. (1) This chapter applies to negotiable instruments. It does not apply to money, to payment orders governed by ch. 410 or to securities governed by ch. 408.
      (2) If there is a conflict between this chapter and ch. 404 or 409, chs. 404 and 409 govern.
      These subsections were amended into their present form by 1995 Wis. Act 449, § 9. The predecessor provisions, found in Wis. Stat. § 403.103 (1991-92), were substantially similar.
      Wisconsin Stat. § 404.102 (1997-98) provides:
      Applicability. (1) The extent that items within this chapter are also within chs. 403 and 408, they are subject to those chapters. If there is conflict, this chapter governs ch. 403, but ch. 408 governs this chapter.
      (2) The liability of a bank for action or nonaction with respect to an item handled by it for purposes of presentment, payment or collection is governed by the law of the place where the bank is located. In the case of action or nonaction by or at a branch or separate office of a bank, its liability is governed by the law of the place where the branch or separate office is located.

        This section was amended into its present form by 1995 Wis. Act 449, § 12. The predecessor provision, found in Wis. Stat. § 403.102 (1991-92), was substantially similar.
      Wisconsin Stat. § 404.103(1) (1997-98) provides:
      Variation by agreement; measure of damages; action constituting ordinary care. (1) The effect of the provisions of this chapter may be varied by agreement, but the parties to the agreement cannot disclaim a bank's responsibility for its lack of good faith or failure to exercise ordinary care or limit the measure of damages for the lack or failure. However, the parties may determine by agreement the standards by which the bank's responsibility is to be measured if those standards are not manifestly unreasonable.
      This subsection was amended into its present form by 1995 Wis. Act 449, § 13. The predecessor provision, found in Wis. Stat. § 403.102 (1991-92), was substantially similar.

       Wisconsin Stat. § 403.406 (1991-92) provided:
      Any person who by his or her negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee's or payor's business.

       Wisconsin Stat. § 404.406(1) (1991-92) provided:
      When a bank sends to its customer a statement of account accompanied by items paid in good faith in support of the debit entries or holds the statement and items pursuant to a request or instructions of its customer or otherwise in a reasonable manner makes the statement and items available to the customer, the customer must exercise reasonable care and promptness to examine the statement and items to discover the customer's unauthorized signature or any alteration on an item and must notify the bank promptly after discovery thereof.

       Wisconsin Stat. § 404.406(2) (1991-92) provided:
      If the bank establishes that the customer failed with respect to an item to comply with the duties imposed on the customer by sub. (1) the customer is precluded from asserting against the bank:
      (b) An unauthorized signature or alteration by the same wrongdoer on any other item paid in good faith by the bank after the first item and statement was available to the customer for a reasonable period not exceeding 14 calendar days and before the bank receives notification from the customer of any such unauthorized signature or alteration.
      Wisconsin Stat. § 404.406(3) (1991-92) provided:
      The preclusion under sub. (2) does not apply if the customer establishes lack of ordinary care on the part of the bank in paying the item.


author: PETERSON, J.

text:
    Robert Walstrom, Plaintiff-Appellant, v. Gallagher Bassett Services, Inc., Defendant-Respondent.
    Court of Appeals

      No. 00-1334-FT.

      Submitted on briefs September 6, 2000.

    Decided October 10, 2000.

    2000 WI App 247
    (Also reported in 620 N.W.2d 223.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of Jonny L. Waara of Petrucelli & Petrucelli, P.C., Iron River, Michigan.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Marie A. Stanton and Kristine A. Edwards of Hurley, Burish & Milliken, S.C., Madison.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.
   PETERSON, J.

¶ 1. Robert Walstrom appeals a summary judgment dismissing his action against Gallagher Basset Services, Inc. Walstrom claims that Gallagher is a third party not immune under the exclusive remedy provision of the Worker's Compensation Act. Because Gallagher was a representative of the worker's compensation insurer, American Zurich Insurance Co., we reject Walstrom's arguments and affirm.

BACKGROUND

¶ 2. Phillips Getschow, Inc., employed Walstrom as a union pipe fitter. Walstrom claims he suffered an injury at work on December 11,1995. An MRI revealed a herniated disc in his neck and Richard Harrison, M.D., recommended surgery be performed immediately.

¶ 3. Walstrom reported his medical condition to his employer, Phillips Getschow, and its worker's compensation insurer, American Zurich. American Zurich had contracted with an adjuster, Gallagher, to administer claims under the worker's compensation policy. Gallagher required Walstrom to undergo an independent medical examination pursuant to WlS. Stat. § 102.13(1). The independent medical examiner agreed with Harrison's recommendation and surgery was performed on February 13, ,1996.

¶4. Following surgery, Walstrom continued to experience pain. He brought an action against Gallagher alleging that it was negligent in delaying authorization for neck surgery. Walstrom claimed the delay resulted in permanent nerve damage.

¶ 5. Gallagher brought a motion to dismiss. The circuit court treated the motion as a motion for summary judgment because both parties had submitted affidavits and other documents outside the pleadings. See WlS. Stat. § 802.06(3). The circuit court found that Gallagher was an agent of American Zurich, and was immune based on the exclusive remedy provision. See WlS. Stat. § 102.03(2). The motion was granted and this appeal followed.

STANDARD OF REVIEW

¶ 6. Whether summary judgment was appropriately granted presents a question of law that we review independently of the circuit court. See Fortier v. Flambeau Plastics Co., 164 Wis. 2d 639, 651-52, 476 N.W.2d 593 (Ct. App. 1991). When reviewing summary judgments, we utilize the same analysis as the circuit court and must apply the standards set forth in Wis. Stat. § 802.08(2). See Schultz v. Industrial Coils, 125 Wis. 2d 520, 521, 373 N.W.2d 74 (Ct. App. 1985). In general, "summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Kenefick v. Hitchcock, 187 Wis. 2d 218, 224, 522 N.W.2d 261 (Ct. App. 1994).

DISCUSSION

¶ 7. The Worker's Compensation Act grants an employer, employees of the employer, and the employer's worker's compensation insurance carrier immunity from common-law liability. See Wis. Stat. § 102.03(2). The statute attempts to effect a compromise between the competing interests of the employer and the employee. See Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173, 180, 290 N.W.2d 276 (1980). "The worker is benefited by certain recovery irrespective of his own fault and irrespective of the employer's absence of fault." Id. In return, the worker is limited to a scheduled compensation award and may not pursue an action for damages against the employer, other employees or the worker's compensation insurer. See id. at 180-81. However, the Act does allow an action to be brought against third parties. See Wis. Stat. § 102.29.

¶ 8. Walstrom argues that Gallagher is not an employer, employee, or worker's compensation insurance carrier. He contends that because there is no reference to third-party administrators in Wis. Stat. § 102.03(2), Gallagher does not fall within the purview of the exclusive remedy provision. We disagree.

¶ 9. Wisconsin case law has interpreted Wis. Stat. § 102.03 as being the exclusive remedy against not only employers, but agents of employers as well. In Wasley v. Kosmatka, 50 Wis. 2d 738, 742, 184 N.W.2d 821 (1971), our supreme court held that a worker could not maintain a tort action against a corporate officer of an employer. The court recognized the anomaly of an injured worker recovering worker's compensation benefits directly from an employer, while at the same time recovering in tort indirectly against the same employer. "This would be a clear circumvention of the exclusive remedy provision" of the Act. Id. at 746.

¶ 10. In Miller v. Bristol-Myers Co., 168 Wis. 2d 863, 879, 485 N.W.2d 31 (1992), the court recognized that the "representative capacity doctrine provides immunity to those who act in their capacity as a representative for the employer from third party suits." There, the court refused to apply the doctrine to the parent corporation of the subsidiary employer. It observed that the "entity claiming immunity must owe a duty to the employer and have acted pursuant to that duty." Id. at 880. The parent corporation did not owe a duty to the subsidiary.

¶ 11. Walstrom does not contend that Gallagher is neither an agent nor a representative of American Zurich. Rather, he simply claims that the rules applying statutory immunity to agents and representatives of employers should not be applied to agents and representatives of worker's compensation carriers.

¶ 12. However, Walstrom fails to show why different rules should be applied to worker's compensation carriers than to employers. Under Wal-strom's reasoning, an agent of the worker's compensation insurance carrier would lack protection under the exclusive remedy provision while an agent of an employer would be covered. Paraphrasing Walsey, this would allow the anomaly of Walstrom recovering worker's compensation benefits directly from American Zurich, while at the same time recovering in tort indirectly against American Zurich. Case law clearly prohibits the anomaly for employers. Why should it be permissible for worker's compensation carriers? Wal-strom provides no answer.

¶ 13. Recovery of compensation is not only the exclusive remedy against the employer, but also the exclusive remedy against the worker's compensation insurance carrier. See Wis. Stat. § 102.03(2). If the exclusive remedy doctrine applies to agents and representatives of the employer, then to be consistent it must also apply to agents and representatives of the worker's compensation carrier.

By the Court. — Judgment affirmed.

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

       Wisconsin Stat. § 102.03(2) provides:
      Where such conditions exist the right to the recovery of compensation under this chapter shall be the exclusive remedy against the employer, any other employe of the same employer and the worker's compensation insurance carrier. This section does not limit the right of an employe to bring action against any coemploye for an assault intended to cause bodily harm, or against a coem-ploye for negligent operation of a motor vehicle not owned or leased by the employer, or against a coemploye of the same employer to the extent that there would be liability of a governmental unit to pay judgments against employes under a collective bargaining agreement or a local ordinance.


author: BROWN, P.J.

text:
    In the Interest of Pablo R., a person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Pablo R., Respondent-Appellant.
    Court of Appeals

      No. 00-0697.

      Submitted on briefs July 19, 2000.

    Decided October 18, 2000.

    2000 WI App 242
    (Also reported in 620 N.W.2d 423.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Elizabeth A. Cavendish-Sosinski of Flores & Reyes Law Firm of Waukesha.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Paul E. Bucher, district attorney, and Brad D. Schimel, assistant district attorney.
    Before Brown, P.J., Anderson and Snyder, JJ.
   BROWN, P.J.

¶ 1. The issue in this case is whether Pablo R., who committed an offense at age fourteen for which he could not have been waived into adult court had he been adjudicated as a juvenile, may now be waived into adult court as an adult because he absconded. Pabló observes that Wisconsin law establishes the juvenile's age at the time of the offense as determinative of the point at which the juvenile court can waive jurisdiction. He then argues that waiver is not possible here because Wis. Stat. § 938.18(l)(a) (1997-98) limits the offenses for which a fourteen year old can be waived into adult court and the allegations made by the State do not fit any of the crimes listed in the statute. We agree with the State, however, that §938.18(2) is a legislatively crafted exception to § 938.18(l)(a) and grants waiver authority in situations such as the one here. We affirm the waiver.

¶ 2. Because the issue in this case is purely statutory interpretation and because the text of the statute will help in gaining an understanding of the facts, we will set forth the language of the statute before discussing the facts. The pertinent part of Wis. Stat. § 938.18 reads as follows:

Jurisdiction for criminal proceedings for juveniles 14 or older; waiver hearing. (l)(a) Subject to s. 938.183, a juvenile or district attorney may apply to the court to waive its jurisdiction under this chapter in any of the following situations:
1. If the juvenile is alleged to have violated s. 940.03, 940.06, 940.225 (1) or (2), 940.305, 940.31, 943.10 (2), 943.32 (2) or 961.41 (1) on or after the juvenile's 14th birthday.
2. If the juvenile is alleged to have committed, on or after the juvenile's 14th birthday, a violation, at the request of or for the benefit of a criminal gang, as defined in s. 939.22 (9), that would constitute a felony under chs. 939 to 948 or 961 if committed by an adult.
3. If the juvenile is alleged to have violated any state criminal law on or after the juvenile's 15th birthday.
(b) The judge may also initiate a petition for waiver in any of the situations described in par. (a) if the judge disqualifies himself or herself from any future proceedings on the case.
(2) The waiver hearing shall be brought on by filing a petition alleging delinquency drafted under s. 938.255 and a petition for waiver of jurisdiction which shall contain a brief statement of the facts supporting the request for waiver. The petition for waiver of jurisdiction shall be filed prior to the plea hearing, except that if the juvenile denies the facts of the petition and becomes 17 years of age before an adjudication, the petition for waiver of jurisdiction may be filed at any time prior to the adjudication. (Emphasis added.)

¶ 3. On January 1, 1997, Pablo, who was then fourteen, allegedly killed a person while driving in an intoxicated condition. On January 14, 1997, the State filed a delinquency petition alleging that Pablo violated Wis. Stat. §§ 940.09(l)(a) (causing the death of another by operating a motor vehicle while under the influence of an intoxicant); 940.09(l)(b) (causing the death of another by operating a motor vehicle while having a prohibited alcohol concentration); and 943.23(2) (intentionally taking and driving a motor vehicle without the owner's consent). Pursuant to the statute quoted above, Wis. Stat. § 938.18(l)(a)l, the State could not have filed a waiver petition at that time because the charged offenses were not listed as crimes for which a fourteen year old could be waived.

¶4. On February 10, 1997, Pablo denied the charges at a plea hearing. On March 20, 1997, the State amended the delinquency petition to include violations of Wis. Stat. § 940.25(l)(a) (causing great bodily harm of another by operating a motor vehicle while under the influence of an intoxicant) and 940.25(l)(b) (causing great bodily harm of another while driving a motor vehicle with a prohibited alcohol concentration). These amended charges could not have given the State the authority to seek waiver either. On April 30, 1997, a dispositional hearing took place. Pablo did not show up; he had absconded to Florida.

¶ 5. Almost two years later, on February 25, 1999, after Pablo had turned seventeen, the State filed a waiver petition. Under the new juvenile code, Pablo was now an adult. See Wis. Stat. § 938.02(1). Eventually Pablo was extradited from Florida, and on January 3, 2000, he was ordered into secure detention in Wisconsin. On February 9, 2000, a waiver petition hearing was held. Over Pablo's objection, the juvenile court waived him into adult court. The juvenile court used Wis. Stat. § 938.18(2) as its authority for doing so.

¶ 6. Pablo appeals that decision to this court. He contends that the juvenile court was wrong to conclude that it had the authority to waive him under WlS. STAT. § 938.18(2). He argues that only if authorized under § 938.18(1) does the juvenile court have the power to waive a person under its jurisdiction to adult court. He interprets § 938.18(2) as merely a legislative command to prosecutors that any waiver petition must be filed before a plea hearing unless the person has turned seventeen, has previously denied the allegations while under juvenile court jurisdiction, and has not yet been adjudicated by the juvenile court. In that instance, a different timing mechanism for filing the waiver petition is involved: the petition for waiver may be filed after the plea hearing. Pablo insists, however, that the timing mechanism set forth in § 938.18(2) does not do away with the strictures set forth in §938.18(1). In other words, Pablo is contending that since the juvenile court had no authority to waive him in the first instance because of his age and charge considerations, the court has no authority to waive him now even if he is an adult.

¶ 7. Whether Pablo is correct in his reading of the two statutes is a question of statutory interpretation. The interpretation or application of a statute is a question of law which this court reviews de novo. See State v. Hughes, 218 Wis. 2d 538, 543, 582 N.W.2d 49 (Ct. App. 1998). When we interpret a statute, our goal is to ascertain the intent of the legislature and give effect to the intent of the legislature. See State ex rel. Frederick v. McCaughtry, 173 Wis. 2d 222, 225, 496 N.W.2d 177 (Ct. App. 1992). We first look to the language of the statute itself. See Anderson v. City of Milwaukee, 208 Wis. 2d 18, 25, 559 N.W.2d 563 (1997). If the language of the statute is unambiguous in its meaning, we go no further. If, however, the statutory language is ambiguous, this court examines the scope, history, context, subject matter and purpose of the statute in order to determine the legislative intent. See McCaughtry, 173 Wis. 2d at 226. "When multiple statutes are contained in the same chapter and assist in implementing the chapter's goals and policy, the statutes should be read in pari materia and harmonized if possible." K.A.P. v. K.A.P., 159 Wis. 2d 384, 389, 464 N.W.2d 106 (Ct. App. 1990). "Statutory language is ambiguous if reasonable people could disagree as to its meaning." McCaughtry, 173 Wis. 2d at 226.

¶ 8. Standing by itself, Wis. Stat. § 938.18(1) is unambiguous. And standing by itself, § 938.18(2) also appears to be unambiguous. That is, subsec. (1) sets the parameters, based on age and the alleged offense, concerning when the court has authority to waive a juvenile into adult court. Subsection (2) allows waiver if the person was a juvenile when the action began, there was no waiver request made prior to the plea hearing, and now the person has become an adult and the juvenile proceedings are not yet concluded because the person denied the charge or charges.

¶ 9. But what happens if the juvenile could not have been waived under the first subsection of Wis. Stat. § 938.18 because of age and offense considerations at the time and is now an adult of seventeen or over who denied the charges at a plea hearing? Does the first subsection act as a limitation on the second subsection such that juveniles who could not be waived when they were fourteen cannot now be waived simply because they have become adults? Or does the second subsection act as an exception to the strict confines of the first subsection? The plain reading of both subsections does not provide the answer. We therefore determine that the statutes, as applied to the case before us, are ambiguous. It is our responsibility to harmonize and give meaning to them.

¶ 10. We start with the obvious. The legislature's purpose in promulgating the Juvenile Justice Code was to provide rehabilitation to juveniles; it understood that treatment and sanction options were limited for juveniles who had become adults. Cf. Wis. Stat. § 938.01. As discussed in § 938.01(2)(f), juveniles have unique needs for care and treatment, which the juvenile justice system is designed to meet. With this purpose in mind, we next turn to the legislative history. We note that Wis. Stat. § 938.18(2) is a codification of K.A.P. See Law Revision Committee Note, 1996, Wis. Stat. §938.18(2). Thus, a review of this court's discussion in that case is important to our analysis.

¶ 11. Like Pablo, K.A.P. was the subject of a delinquency petition. As in Pablo's case, the State did not file a waiver petition at the time of the delinquency petition. Like Pablo, K.A.P. denied the allegations of the petition. Then, like Pablo, K.A.P. absconded. Like Pablo, the next time K.A.P. appeared in juvenile court, he was an adult. The juvenile court dismissed the case against K.A.P. It believed that, since the State had not filed a waiver petition at the time of the plea hearing, it could not do so now just because K. A.P absconded and was an adult.

¶ 12. We reversed. The issue was a little different than the issue here. In K.A.P., we pointed out that while one statute said that the State must file its waiver petition before the plea hearing, another statute authorized the juvenile court to waive a child if the child had become an adult. The State contended that the authority to waive a person who was eighteen trumped any earlier decision on its part not to seek waiver prior to the original plea hearing. K.A.P. asserted that once the State had decided not to file its petition prior to the plea hearing, it had lost the right to file forever, even if he had absconded while the process was pending and had now become an adult. We recognized that it was our task to harmonize the two statutes. We wrote:

[T]he commencement of a delinquency petition without an accompanying waiver petition contemplates that the proceeding will be concluded in the juvenile forum. When, however, a child becomes eighteen during the pendency of the action, the situation is markedly changed. The court's options are distinctly limited: (1) entry of a consent decree (obviously, only with the consent of the child); (2) dismissal with prejudice; or (3) waiver of juvenile court jurisdiction.
These significant changes in the child's status and dispositional options, which were not present at the time the action was commenced, satisfy us that the deadline for filing a waiver of juvenile court jurisdiction in a conventional delinquency proceeding does not apply. A statute should be construed to give effect to its leading idea and should be brought into harmony with its purpose.... The leading idea of sec. 48.12(2), Stats., is to redefine the juvenile court's jurisdiction when this special situation arises. (Emphasis added.) In such a setting, waiver becomes an option, not only because the appropriate criteria for waiver under sec. 48.18, Stats., are present, but also because the child has attained eighteen years of age while the action was pending — a condition not present nor reasonably anticipated when the action was commenced.

K.A.P., 159 Wis. 2d at 390-91.

¶ 13. We recognize that in K.A.P., the prosecutor had the right to file a petition for waiver prior to the plea hearing had he or she chosen to do so, while here, the prosecutor had no such right to file a petition for waiver prior to the plea hearing. Thus, while in K.A.P. the prosecutor had the choice of seeking waiver, but did not, the prosecutor in Pablo's case did not file for waiver because he or she was prohibited from doing so. Or put another way, in both cases, it was contemplated that the proceeding would be concluded in the juvenile forum. The difference is that in K.A.P., it was the prosecutor who, by his or her decision, contemplated that the proceeding would remain in the juvenile forum while, in Pablo's case, it was the legislature which made that decision.

¶ 14. But we conclude that this difference is one that is without distinction. In both cases, the person had absconded, forcing a different situation before the juvenile court — the child was now an adult and the court's options were now limited. In K.AP., we read Wis. Stat. § 48.18(2) (1989-90) to be a legislative grant allowing the juvenile court to redefine its jurisdiction when faced with "a condition not present nor reasonably anticipated when the action was commenced." K.A.P., 159 Wis. 2d at 390-91. We construed the statute to allow the court to now consider waiver when it could not consider waiver beforehand. See id. at 387-89. Likewise, we read the new statute, Wis. Stat. § 938.18(2), to allow the juvenile court to redefine its jurisdiction to waive when faced with conditions not contemplated or anticipated. We are confident in this result because the legislature cited K.A.P as the genesis for the statute. See Law Revision Committee Note, 1996, Wis. Stat. § 938.18(2). Thus, we conclude that §938.18(2) is an expression of legislative will that when a person becomes seventeen and adjudication has not yet been accomplished because of some unlawful action by that person, the situation has changed and waiver into adult court is an appropriate response to the person's action.

¶ 15. Pablo may still want to dwell on the distinction between K.A.P. and this case. In K.A.P., 159 Wis. 2d at 387, it was the prosecutor who made the decision which contemplated that the proceeding would be completed in the adult court. He may read K.A.P. as saying that Wis. Stat. § 48.18(2) (1989-90) was merely a legislative decision to allow the prosecution to change its mind if the child absconded and was not found until that child had reached adulthood. He may say that the difference here is that it is the legislature, not the prosecutor, which has made the legislative choice that children who commit crimes when they are fourteen shall have their dispositions in juvenile court. He may argue that while a statute can be read to give the prosecutor a second kick at the cat if conditions change, it cannot be read to allow a court to give the prosecutor a first kick at the cat when conditions change.

¶ 16. To this anticipated argument, we disagree. We wrote K.A.P. We knew what we were saying. And, when we wrote K.A.P., we were not limiting our decision to the facts of that case; our intent was broader. In other words, we were not saying that the legislature was giving the prosecutor a chance to seek waiver where it had eschewed that choice earlier. That was not where we were headed. We were saying that when conditions change because of a lawbreaking action by the child, resulting in the child being an adult before adjudication, all bets are off and the power of the court to waive the person is redefined. We are convinced that the legislature came away from reading K.A.P. with this understanding and sanctioned our interpretation by specifically noting K.A.P. when promulgating Wis. Stat. § 938.18(2).

¶ 17. We conclude as we began. The Juvenile Justice Code must be construed to give effect to "its leading idea." And the leading idea is to keep juveniles away from the adult system in all but a few instances because there is so much hope that we can use the capabilities of the juvenile system to turn the child around before it is too late. But when the child absconds and becomes an adult, it is absurd to believe that the leading idea still has some force to it. While there may be a few instances where keeping the adult under juvenile jurisdiction is still appropriate, the legislature was not interested in fencing the court in. This is why it promulgated WlS. STAT. § 938.18(2). We affirm the waiver into adult court.

By the Court. — Order affirmed.

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

       Wisconsin Stat. § 48.12(2) (1989-90) stated:
      If a court proceeding has been commenced under this section before a child is 18 years of age, but the child becomes 18 years of age before admitting the facts of the petition at the plea hearing or if the child denies the facts, before an adjudication, the court retains jurisdiction over the case to dismiss the action with prejudice, to waive its jurisdiction under s. 48.18, or to enter into a consent decree. If the court finds that the child has failed to fulfill the express terms and conditions of the consent decree or the child objects to the continuation of the consent decree, the court may waive its jurisdiction.


author: SNYDER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Rick R. Rome, Defendant-Appellant.

    Court of Appeals

      No. 00-0796-CR.

      Submitted on briefs September 20, 2000.

    Decided October 18, 2000.

    2000 WI App 243
    (Also reported in 620 N.W.2d 225.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of William E. Schmaal, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of William C. Wolford, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, P.J., Anderson and Snyder, JJ.

      Petition to review denied.

   SNYDER, J.

¶ 1. Rick R. Rome appeals from a judgment of conviction for manufacturing marijuana. Rome asserts that the trial court erred when it denied his motion to suppress evidence found in his closet. Rome argues that the police entry into his home and closet was not justified by emergency circumstances because the police officer was not solely motivated by a perceived need to render immediate aid or assistance. We conclude that the police entry into both the home and the closet was justified by emergency circumstances and affirm the judgment of conviction.

FACTS

¶ 2. On December 1,1998, at approximately 2:00 a.m., Officers Emmett Grissom and E.A. Sutherland of the Village of Grafton Police Department saw a woman walking on the street carrying a baby. The woman was crying and very upset. Because it was December and the weather was cold and windy, Grissom stopped his patrol car and asked the woman why she was crying and why she was out in those conditions late at night. The woman stated that she had had an argument with her husband and was walking to her brother-in-law's home. The woman insisted that she did not want any police assistance in the matter.

¶ 3. Grissom gave the woman and the baby a ride to her brother-in-law's home. During the ride, the woman identified her husband as Rome. The woman stated that Rome was at their home and had been drinking. The woman reported that Rome had been yelling and threatening her during an argument about the children, and that at one point Rome had grabbed her hair. The woman insisted that Rome would never hit her and that she did not want any police involvement. When Grissom informed her that he needed to talk to Rome about this incident, she stated that Rome was at home, intoxicated, with her two-year-old daughter. The woman insisted that the child had been fine, asleep in her bedroom, when she had left the house only ten or fifteen minutes earlier. Nevertheless, she did acknowledge that she was concerned about the child's welfare because Rome was drunk and probably did not know that she had left the house; she asked the police to go to her house and check on her daughter. However, the woman did not give the police permission to enter her home.

¶ 4. Grissom and Sutherland then went to the Rome home, where they met with two other police officers. The officers rang the doorbell for one or two minutes but received no response. The officers then knocked on the outer door of the house, which swung open by itself into an enclosed porch. The officers noticed an interior door down the hallway which led inside the house. When the officers approached the interior doorway, they noticed that the door was open a few inches. The officers swung the interior door open and called out for Rome to come and talk with them. Although the officers shouted "at the top of [their] lungs" for "well over 10 minutes," no one responded and they heard no noise from elsewhere in the house. The officers asked the police dispatcher to call the Rome residence on the phone to see if someone would come to the door, but the dispatcher informed the officers that the phone had been disconnected.

¶ 5. The officers then entered the kitchen area of the house and continued to call out for another five minutes but without response. While Grissom waited in the kitchen to keep an eye on the basement stairs, Sergeant Dennis Kasprzak and Sutherland went to the base of the stairs going upstairs and shouted for another minute or so. Kasprzak and Sutherland then went upstairs.

¶ 6. Upstairs, Kasprzak and Sutherland found Rome asleep on a bed in one of the bedrooms; they called out his name and startled him. While Kasprzak and Sutherland placed Rome in handcuffs for safety reasons, Kasprzak noticed a light flickering beneath the closed closet door. Kasprzak believed that the two-year-old child might be hiding in the closet because of the excessive shouting by the police officers. Kasprzak opened the closet door and found, instead of the child, a makeshift greenhouse and a marijuana plant.

¶ 7. At the same time, after hearing that Kas-przak and Sutherland had found Rome, Grissom went upstairs and saw Kasprzak and Sutherland handcuffing Rome. He then went to look in other rooms for the two-year-old child and found her asleep in a bedroom. When Grissom returned to the bedroom where Kas-przak and Sutherland were with Rome, Kasprzak showed him the marijuana plant in the closet.

¶ 8. Rome was charged with one count of manufacturing marijuana. The criminal complaint alleged that Rome had grown less than 500 grams of marijuana in a bedroom closet. Rome filed a pretrial motion to suppress the evidence obtained as a result of the search of his home, claiming that the marijuana found in his closet was obtained through an unlawful war-rantless search of his home.

¶ 9. An evidentiary hearing was held on Rome's suppression motion. The trial court denied the suppression motion, finding that the officers did not have consent to enter the premises but that their entry and search of the bedroom closet were justified by the "exigencies" related to the safety of the two-year-old child. Rome then pled no contest to the charge. Rome appeals the trial court's denial of his suppression motion.

DISCUSSION

¶ 10. The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The Wisconsin Constitution is essentially the same. See Wis. Const. art. I, § 11. War-rantless searches "are per se unreasonable under the fourth amendment, subject to a few carefully delineated exceptions" that are "jealously and carefully drawn." State v. Boggess, 115 Wis. 2d 443, 449, 340 N.W.2d 516 (1983) (citation omitted).

¶ 11. The list of carefully drawn exceptions has expanded over time and presently there are at least ten exceptions under which warrantless searches and seizures may be valid: (1) when the evidence seized is in plain view; (2) when consent is freely and voluntarily given; (3) as incident to a lawful arrest; (4) while authorities are in hot pursuit or during emergency situations; (5) during stop-and-frisk situations; (6) while authorities are engaged in their community caretaker function; (7) where exigent circumstances exist; (8) pursuant to the open fields doctrine; (9) during inventory searches of impounded vehicles; and (10) during border and customs searches. See State v. Milashoski, 159 Wis. 2d 99, 111-12, 464 N.W.2d 21 (Ct. App. 1990). These exceptions are not inherently different in nature but instead each "presents a means by which the reasonableness of a given search and seizure may be assessed and described." Id. at 112. The State bears the burden of proving that the warrantless search falls within one of these narrowly drawn exceptions. See id. at 111.

¶ 12. In State v. Pires, 55 Wis. 2d 597, 201 N.W.2d 153 (1972), the Wisconsin Supreme Court approved the emergency rule as an exception to the warrant requirement, recognizing that the Fourth Amendment does not bar a government official from making a warrantless intrusion when the official reasonably believes that a person is in need of immediate aid or assistance. See Boggess, 115 Wis. 2d at 450. This emergency exception is based upon the idea that "the preservation of human life is paramount to the right of privacy protected by the fourth amendment." Id.

¶ 13. The test for a valid warrantless search under the emergency doctrine necessitates a two-step analysis. See id. First, the searching officer must be actually motivated by a perceived need to render aid or assistance. See id. Second, even if the requisite motivation exists, it must be found that, under the circumstances, a reasonable person would have thought an emergency existed. See id. at 450-51. In other words, the search was valid if the officers subjectively observed a need to provide immediate assistance and intended to do so when they entered the home and the facts, viewed objectively, sustain the conclusion that the officers had probable cause to believe that there was an emergency and immediate action was necessary for the protection of life or property. See State v. Kraimer, 99 Wis. 2d 306, 316-17, 298 N.W.2d 568 (1980). Both the subjective and objective components of this test must be met for the warrantless search to be valid. See Boggess, 115 Wis. 2d at 451.

¶ 14. When reviewing a trial court's order on a suppression motion, the findings of fact will be sustained unless they are clearly erroneous. See Wis. Stat. § 805.17(2); see also State v. Secrist, 224 Wis. 2d 201, 207, 589 N.W.2d 387 (1999), cert. denied, 526 U.S. 1140 (U.S. May 24, 1999) (No. 98-9151). However, we will "independently examine the circumstances of the case to determine whether the constitutional requirement of reasonableness is satisfied." Kraimer, 99 Wis. 2d at 319 (citations omitted). We will not disturb rulings on the admissibility of evidence absent a misuse of discretion. See Milashoski, 159 Wis. 2d at 110.

¶ 15. In the instant case, Rome argues that the objective facts do not support a reasonable belief that the two-year-old child was in immediate need of assistance, thereby warranting the entry into the house and closet. We disagree.

¶ 16. The objective component of the emergency rule requires that the officer "point to specific facts that, taken with the rational inferences from those facts, reasonably warranted the intrusion into an area in which a person has a reasonable expectation of privacy." Boggess, 115 Wis. 2d at 451. The necessity of reasonable grounds to believe that an emergency existed must be applied to the circumstances then confronting the officer, including his or her need for a prompt evaluation of possibly ambiguous information concerning potentially serious consequences. See id.

[T]he objective test of the emergency rule is satisfied when, under the totality of the circumstances, a reasonable person would have believed that: (1) there was an immediate need to provide aid or assistance to a person due to actual or threatened physical injury; and (2) that immediate entry into an area in which a person has a reasonable expectation of privacy was necessary in order to provide that aid or assistance.

Id. at 452.

¶ 17. Grissom found a young woman crying and walking along the street in the middle of a cold December night, carrying a baby. The woman indicated that she and her intoxicated husband had had an argument about the children where he had yelled, threatened her and grabbed her hair. The argument was sufficiently serious to drive her out into the cold night without appropriate clothing for her or the baby. Although the woman insisted that she did not want police involvement and that her two-year-old child had been asleep and fine in the house before she left, she did acknowledge that Rome was drunk and probably did not even know that she had left the house. She admitted that she was concerned about the child's welfare because of Rome's intoxication and asked the officers to go to her house and check on the child.

¶ 18. After arriving at the house, the officers received no response to the ringing of the doorbell and knocking on the door several times. In addition, the officers shouted Rome's name for over fifteen minutes but with no response. The Rome phone had been disconnected. After finding Rome asleep in one of the bedrooms, one officer noticed a flickering closet light. Thinking the child might be in the closet, he opened the door. In light of these circumstances, a reasonable person could believe that there was an immediate need to provide aid or assistance to the two-year-old child and that immediate entry into both the house and the closet was necessary in order to provide that aid or assistance. A situation need not necessarily involve a life-or-death circumstance in order to constitute an emergency within the emergency rule. See id. at 458. Rome was intoxicated and had been violent and threatening towards his wife while arguing about the children. A reasonable person could believe that the two-year-old child could be in danger while in Rome's care at that time. We conclude that the objective test of the emergency rule has been met in this instance.

¶ 19. Rome also argues that the officers' entry into the home was not subjectively motivated solely by a perceived need to render assistance to the two-year-old child. Rome asserts that pursuant to Boggess, 115 Wis. 2d at 443, under the emergency exception the officers' sole motivation must be to render immediate aid or assistance. Because one of the officers was motivated, in part, by his duty to investigate the alleged domestic abuse incident between Rome and his wife, Rome argues that the emergency exception does not apply. We decline to construe Boggess so strictly.

¶20. The objective and subjective elements of the emergency rule exception to the Fourth Amendment are designed to prevent a pretextual entry into a home, but they do not specifically prohibit dual motivations. The officers' contemporaneous motivation to investigate an alleged domestic abuse incident does not divest them of their ability to engage in their immediate aid or assistance obligations. Cf. Milashoski, 159 Wis. 2d at 118 (authorities' concurrent suspicion of criminal activity does not deprive them of their ability to pursue their "render safe" activities). To hold otherwise would lead to absurd results. Under this theory, if a killer, holding a handgun, had murdered one person and a child was in the same room with the killer, government officials could not attempt to rescue the child because the child exigency would spill over into the murder investigation. The Fourth Amendment "permits officials to act reasonably in the face of actual or potential danger, not to ignore it." Milashoski, 159 Wis. 2d at 118.

¶ 21. For example, in Kraimer, 99 Wis. 2d at 306, the Wisconsin Supreme Court approved a warrantless entry into a defendant's home under the emergency exception. The police had received three anonymous telephone calls in which the caller stated, in part, that he had shot and killed his wife, his four children were with him, and he was very upset. See id. at 308. After conducting some investigation, the police concluded that the anonymous caller was Kraimer. See id. at 308-09. The police then made a warrantless entry into Kraimer's home to investigate the status of Kraimer's wife and a possible burglary and to ascertain the welfare of his children. See id. at 319. The supreme court ruled the warrantless entry reasonable under the emergency exception because the officer's main purpose was not to secure evidence of a crime, but to determine the condition of the children and provide aid or assistance, if necessary. See id. at 320, 328-29.

¶ 22. Similarly, in Milashoski, 159 Wis. 2d at 99, firefighters removed what appeared to be laboratory equipment and combustible chemicals from the basement of Milashoski's home following an explosion and a fire. See id. at 105. The equipment and chemicals were initially transferred to the fire station but were eventually shipped to the state crime laboratory where their contents were analyzed. See id. at 105-06. One of the liquids contained concentrations of two controlled substances. See id. at 106. Milashoski was then charged with manufacturing a controlled substance. See id. at 104. Because the firefighters did not have a warrant to search the basement, Milashoski moved to suppress the physical evidence against him. See id. at 106. The trial court denied the motion and Milashoski was convicted. See id. We affirmed the conviction, stating that "even if, arguendo, . . . fire officials were motivated by safety concerns and a desire to conduct a criminal investigation, the safety concerns presented were sufficient in and of themselves to immunize the seizure, and any investigatory motives immaterial to such a result." Id. at 113. We were not convinced that the firefighters' concurrent suspicion of criminal activity deprived them of their ability to pursue their "render safe" activities. See id. at 118. Although the equipment and chemicals were suspected as evidence of criminal activity, they were also independently believed to be volatile and harmful to health. See id. We concluded that even if the fire officials had criminal investigation on their minds, this did not neutralize the genuineness of their "render safe" concerns. See id.

¶ 23. Likewise, we are not persuaded here that the officers' concurrent suspicion of a domestic abuse incident robbed them of their ability to provide aid or assistance. Even if the officers had the investigation of an alleged domestic abuse incident on their minds, this would not have neutralized the genuineness of their aid and assistance concerns regarding the two-year-old child. The safety concerns regarding the child were sufficient in and of themselves to immunize the seizure; any other investigatory motives were immaterial. Other jurisdictions have also held that so long as the search is actually and primarily motivated by a perceived need to render immediate aid or assistance, the search is valid. See People v. Mitchell, 347 N.E.2d 607 (N.Y. 1976); People v. Duncan, 720 P.2d 2 (Cal. 1986). The material question is whether the immediate need to provide aid or assistance was the officers' primary motivator. Here, the officers' need to provide aid or assistance was paramount to the perceived need to investigate an alleged domestic abuse incident.

¶ 24. In sum, both the objective and subjective elements of the emergency rule exception to the Fourth Amendment search warrant requirement have been met.

CONCLUSION

¶ 25. The police entry into Rome's house and closet was justified by emergency circumstances because the officers' primary purpose was to provide aid or assistance to the two-year-old child. The trial court's decision to deny Rome's suppression motion was correct. We therefore affirm the judgment of conviction.

By the Court. — Judgment affirmed.