text:
    In the Matter of Disciplinary Proceedings Against Mary E Donovan, Attorney at Law. Office of Lawyer Regulation, f/k/a Board of Attorneys Professional Responsibility, Complainant, v. Mary E Donovan, Respondent.
    Supreme Court

      No. 97-1770-D.

      Decided March 4, 2004.

    2004 WI 21
    (Also reported in 675 N.W.2d 469.)
   The Court entered the following order on this date:

Mary E Donovan's license to practice law in Wisconsin was suspended for six months as the result of professional misconduct that occurred while she was acting as an assistant city attorney for the City of Beloit. The misconduct consisted of her forging a certificate of completion of a deferred prosecution program and submitting it to the municipal court to obtain dismissal of charges against an acquaintance who had not been enrolled in the program and forging a friend's signature on a letter submitted to the municipal court requesting a jury trial and representing the city on a charge against that friend. See Disciplinary Proceedings Against Donovan, 211 Wis. 2d 451, 464 N.W.2d 772 (1997).

Ms. Donovan filed a petition for reinstatement of her license to practice law on June 27, 2003. John Schweitzer was appointed as referee. A public hearing on Ms. Donovan's petition for reinstatement was held on December 17, 2003. The referee filed his report on January 2, 2004 recommending that Ms. Donovan's license to practice law be reinstated. The referee's report stated that Ms. Donovan satisfactorily answered and addressed all issues listed in SCR 22.29, which sets forth the various factors that must be demonstrated by a person seeking reinstatement. The referee noted that no evidence was presented at the public hearing to cast doubt on Ms. Donovan's present qualifications to practice law. The referee found that Ms. Donovan had complied with the requirements of SCR 22.26 regarding the activities of a person whose license has been suspended, and the referee concluded Ms. Donovan may safely be recommended to return to the practice of law.

The referee specifically found that Ms. Donovan maintained competence and learning in the law by attending various educational activities. The referee noted that a letter from the Board of Bar Examiners confirmed that Ms. Donovan had completed the necessary number of continuing legal education (CLE) hours, including ethics credits, and that she is current in her CLE obligations through December 31, 2004.

The referee found that Ms. Donovan's conduct since her suspension has been exemplary and above reproach; that she has a proper understanding of and attitude toward the standards that are imposed upon members of the bar; and that she can safely be recommended to the legal profession, the court and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and an officer of the courts.

The referee also recommended that Ms. Donovan be required to pay the costs of the reinstatement proceeding within six months after her reinstatement.

This court accepts the referee's findings of fact, conclusions of law, and recommendation.

IT IS ORDERED that the license to practice law of Mary E Donovan be reinstated effective the date of this order.

IT IS FURTHER ORDERED that within six months of the date of this order Mary E Donovan pay the costs of this proceeding. If the costs are not paid by that date, and absent a showing to this court of her inability to pay the costs, the license of Mary E Donovan to practice law in Wisconsin shall be suspended until further order of this court.

Cornelia G. Clark

Clerk of Supreme Court


source: Caselaw Access Project

author: ANN WALSH BRADLEY, J. DAVID T. PROSSER, J. DAVID T. PROSSER, J.

license: Public Domain

text:
    Town of Delafield, Plaintiff-Respondent-Petitioner, v. Eric Winkelman and Christine Winkelman, Defendants-Appellants.
    Supreme Court

      No. 02-0979.

      Oral argument December 4, 2003.

      Decided March 5, 2004.

    2004 WI 17
    (Also reported in 675 N.W.2d 470.)

      For the plaintiff-respondent-petitioner there were briefs by H. Stanley Riffle, Julie A. Aquavia and Arenz, Molter, Macy & Riffle, S.C., Waukesha, and oral argument by H. Stanley Riffle.

    For the defendants-appellants there was a brief by James W. Hammes and Cramer, Multhauf & Hammes, LLP, Waukesha, and oral argument by James W. Hammes.

   ANN WALSH BRADLEY, J.

¶ 1. The petitioner, Town of Delafield ("Town"), seeks review of a published decision of the court of appeals that reversed the summary judgment granted by the circuit court in favor of the Town. After a zoning violation had been proven in a separate proceeding, the Town brought this enforcement action seeking, as sanction for the violation, a raze order for the removal of a legal nonconforming rental unit from the Winkelmans' property.

¶ 2. The Town urges this court to clarify whether the circuit court had the power to consider equitable arguments in this enforcement action. It asserts that even if the circuit court generally has such power, it should not be exercised here because the Winkelmans already received a full opportunity to challenge the equities in the certiorari review. The Winkelmans counter that the circuit court lacked subject matter jurisdiction to consider the Town's enforcement action.

¶ 3. We conclude that the circuit court had subject matter jurisdiction to enter the orders. We also agree with the court of appeals that the circuit court had the power to consider the Winkelmans equitable arguments in the context of this enforcement action. Moreover, we determine that the circuit court may properly exercise that power here. Accordingly, we affirm the court of appeals.

I

¶ 4. The Winkelmans own a lot in the Town of Delafield containing two houses. Both are legal, but nonconforming structures based on their location on the lot. The houses are also legal, but nonconforming uses due to zoning restrictions that permit only one residence per lot. At all times relevant to these proceedings, the Winkelmans used one of the houses as their own residence and the other as a rental unit.

¶ 5. In 1991, the Winkelmans obtained a building permit for interior remodeling of the two houses. After construction began, the new Town building inspector discovered that the remodeling involved work on a legal nonconforming structure and issued a stop-work order. As a result of the stop-work order, the Winkelmans applied for a variance from the Town zoning board.

¶ 6. On September 30, 1994, the Town zoning board granted the Winkelmans' request for a variance in part, but placed certain conditions on its approval. One of the conditions required the Winkelmans to remove the rental residence from the property within three years of the date of the board's decision.

¶ 7. The Winkelmans thereafter sought certiorari review of the board's decision. Among other arguments, the Winkelmans claimed that the board's action was unreasonable because their mortgage financing was contingent upon the rental income of the second residence. The certiorari court rejected this argument, noting that the Winkelmans provided no evidence to support it. Accordingly, the court upheld the board's decision, and the Winkelmans did not appeal.

¶ 8. After certiorari review, the Town extended the deadline for removing the rental residence from March 1998 to April 1999. When the Winkelmans did not remove the rental house by April 1999, the Town's zoning board brought a motion requesting the certio-rari court to order the Winkelmans to raze the house or, in the alternative, allow the Town to do so. The certio-rari court granted the board's motion, and the Winkel-mans appealed.

¶ 9. The court of appeals reversed the certiorari court. Winkelman v. Town of Delafield, 2000 WI App 254, ¶ 1, 239 Wis. 2d 542, 620 N.W.2d 438 (Winkelman). It did so on the ground that the board needed to obtain jurisdiction over the Winkelmans for the enforcement action either by serving a summons and complaint or by serving an appropriate original writ. Id.

¶ 10. Following the decision of the court of appeals, the Town commenced this action pursuant to Wis. Stat. § 62.23(8) (2001-02) by filing a complaint requesting forfeitures along with an order directing the Winkelmans to remove the rental residence. The Town then moved for summary judgment.

¶ 11. The circuit court granted the Town's motion for summary judgment and rejected the Winkelmans' argument that under Forest County v. Goode, 219 Wis. 2d 654, 579 N.W.2d 715 (1998), it was required to hear their equitable argument. In its oral decision, the court concluded that it did not have the equitable power in the context of the enforcement action to deny the injunctive relief. It explained:

But now we're back on an independent action and I have no power to change the — actually, the position taken by the Town which was upheld by Judge Mawds-ley, not appealed on that issue. There is now a judgment entered that approves of the variance .... I have no alternative but to grant this motion for summary judgment . . . and enter an [o]rder allowing the Town to raze the building if the Winkelmans do not.

¶ 12. The circuit court subsequently imposed a forfeiture of $25 per day from April 8, 1999, until January 31, 2002. The oral ruling granting the raze order and a forfeiture was later reduced to a written order. The Winkelmans again appealed.

¶ 13. The court of appeals reversed the circuit court's decision. Town of Delafield v. Winkelman, 2003 WI App 92, ¶ 1, 264 Wis. 2d 264, 663 N.W.2d 324 (Winkelman II)- It observed that when a governmental entity seeks equitable relief such as an injunction or abatement, the law appeared to provide property owners with "two kicks at the cat": first, to defend against the claim that there is a violation and, second, to defend against enforcement of a sanction for that violation. Id., ¶ 14. Although the court questioned the wisdom of this approach, it determined that Goode mandated consideration of the equitable arguments. Id., ¶ 15. Moreover, it rejected the Town's assertion that the Winkelmans had already made their equitable arguments during the certiorari review. Id., ¶ 18. Accordingly, the court of appeals remanded the case back to the circuit court for a hearing on the equities. Id., ¶ 20. It prohibited the Winkelmans from reasserting the argument previously rejected by the certiorari court, however, under the doctrine of issue preclusion. Id.

¶ 14. As a threshold matter, we must examine the issue of subject matter jurisdiction. Whether a court has subject matter jurisdiction of a particular action is a question of law, subject to independent appellate review. See Gonzales v. AM Cmty. Credit Union, 150 Wis. 2d 773, 777, 442 N.W.2d 536 (Ct. App. 1989).

¶ 15. Additionally, this case provides us with an opportunity to review the circuit court's power to consider equitable arguments in the context of an enforcement action. It also allows us to determine whether the court may consider equitable arguments which have been previously rejected by a certiorari court. These issues are raised in the context of summary judgment. We review a circuit court's grant or denial of summary judgment independently, applying the same methodology as the circuit court. O'Neill v. Reemer, 2003 WI 13, ¶ 8, 259 Wis. 2d 544, 657 N.W.2d 403 (citing Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 536, 563 N.W.2d 472 (1997)).

¶ 16. Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id., ¶ 8. Here, there are no material facts in dispute that are relevant to the issue before us. Therefore, we are presented with a question of law, which is subject to independent appellate review. Id. (citing Lewis v. Physicians Ins. Co. of Wis., 2001 WI 60, ¶ 9, 243 Wis. 2d 648, 627 N.W.2d 484.)

I — I h-H HH

¶ 17. We begin with the inquiry of whether the circuit court had subject matter jurisdiction. In their brief, the Winkelmans assert that the circuit court lacked subject matter jurisdiction to qonsider the Town's enforcement action. Specifically, they contend that the jurisdiction of the Town's ordinance did not extend to them, as their property is actually controlled by the Waukesha County Shoreland Code. In the case's nine-year history, this is the first time the Winkelmans have raised the issue of subject matter jurisdiction.

¶ 18. The principal authority the Winkelmans rely upon for their argument is Wis. Stat. § 59.692(2)(b). The statute provides, "[i]f an existing town ordinance relating to shorelands is more restrictive than an ordinance later enacted under this section affecting the same shorelands, it continues as a town ordinance in all respects to the extent of the greater restrictions, but not otherwise." Wis. Stat. § 59.692(2)(b). The Winkelmans argue that by the application of the statute, the Town zoning ordinance could regulate their shoreland property only to the extent that it imposed a greater restriction than does the County ordinance. An examination of the two ordinances, they maintain, reveals that it does not. Thus, they argue the Town's ordinance does not apply to their property. Consequently, the court does not have jurisdiction over this claimed violation.

¶ 19. The problem with the Winkelmans' argument is that it confuses the jurisdiction of the zoning board with that of the court. In Wisconsin, circuit courts are courts of general jurisdiction. Mack v. State, 93 Wis. 2d 287, 294, 286 N.W.2d 563 (1980). They have subject matter jurisdiction of all matters, civil and criminal, not excepted in the constitution or prohibited by law. Id. (citing Dumer v. State, 64 Wis. 2d 590, 595, 219 N.W.2d 592 (1974)). This includes the authority to hear zoning enforcement actions arising from either town or county ordinances.

¶ 20. The Winkelmans' claim is better understood as an attack on the Town's jurisdiction to regulate their property in the first place. This attack, however, should have been made at the initial certiorari review. After all, one of the issues certiorari courts determine is whether the Town kept within its jurisdiction. Because the Winkelmans did not timely object to the Town's jurisdiction, we do not address the merits of the issue and deem it as waived.

IV

¶ 21. We next address whether the circuit court had the power to consider the Winkelmans' equitable arguments in the context of an enforcement proceeding. The relevant precedent is Goode and the series of cases culminating in Lake Bluff Housing Partners v. City of South Milwaukee, 2001 WI App 150, 246 Wis. 2d 785, 632 N.W.2d 485 (Lake Bluff IV). We examine these cases in turn.

¶ 22. In Goode, this court was asked to determine whether a circuit court retained equitable power to deny injunctive relief after a zoning violation has been proven. 219 Wis. 2d at 656. There, the County initiated an enforcement action pursuant to Wis. Stat. § 59.69(H) against Goode for noncompliance with a zoning order. Id. at 656-57. The County requested assessment of forfeitures and an injunctive order compelling Goode to relocate his house to comply with a 50-foot setback requirement. Id. at 656. In the County's view, the statute in question did not give circuit courts discretion over whether to require compliance with zoning ordinances. Id. at 663. This court disagreed.

¶ 23. After construing Wis. Stat. § 59.69(11), we concluded that the legislature did not intend to eliminate the traditional equitable powers of the circuit court. Id. at 657. Therefore, we held that "when a circuit court is asked to grant injunctive relief for a proven zoning ordinance violation, § 59.69(11) [did] not eliminate the circuit court's equitable power to deny injunctive relief in a particular case." Id. Accordingly, we affirmed the decision of the court of appeals reversing the order to relocate Goode's house and remanded the matter for a hearing on the equities. See id.

¶ 24. In the subsequent series of Lake Bluff cases, the court of appeals considered whether the analysis in Goode applied to situations where relief is sought pursuant to a different enforcement provision for zoning violations, Wis. Stat. § 62.23(8). See Lake Bluff IV, 246 Wis. 2d 785, ¶ 3; Lake Bluff Housing Partners v. City of Milwaukee, 222 Wis. 2d 222, 231-32, 588 N.W.2d 45 (Ct. App. 1998) CLake Bluff III). There, Lake Bluff Housing Partners purchased property with the intention of using it for multi-family buildings. Lake Bluff IV, 246 Wis. 2d 785, ¶ 3. Before any building permits were issued, however, South Milwaukee rezoned the property for single-family residences. Id. Lake Bluff filed suit, claiming that it had vested rights in the property. Id., ¶¶ 3, 4.

¶ 25. Lake Bluff was successful in its argument before both the circuit court and court of appeals. Lake Bluff Housing v. City of South Milwaukee, 188 Wis. 2d 230, 233, 525 N.W.2d 59 (Ct. App. 1994) {Lake Bluff I). This court, however, reversed, concluding that because Lake Bluff "never submitted an application for a building permit conforming to the zoning and building code requirements in effect at the time of the application," it did not acquire any vested rights. Lake Bluff Housing v. City of South Milwaukee, 197 Wis. 2d 157, 182, 540 N.W.2d 189 (1995) (Lake Bluff II). While the City sought review in this court, Lake Bluff had finished construction on its project. Lake Bluff IV, 246 Wis. 2d 785, ¶ 5.

¶ 26. After this court issued its decision, Lake Bluff filed a declaratory action in circuit court, arguing that the City should be equitably estopped from initiating an enforcement action pursuant to Wis. Stat. § 62.23(8). Id., ¶¶ 6-7. The circuit court agreed. Id., ¶ 6. The court of appeals, however, reversed the circuit court's decision. Lake Bluff III, 222 Wis. 2d at 224. In doing so, it remanded the case for a determination as to whether Goode's analysis applied to an analysis of Wis. Stat. § 62.23(8), and, if so, whether "there [were] compelling equitable reasons" that the requested order of abatement should not be issued. Id. at 231-32.

¶ 27. On appeal after remand, the court of appeals concluded that the circuit court had properly weighed the equitable considerations under Goode and affirmed the judgment ordering Lake Bluff to remove its buildings. Lake Bluff IV, 246 Wis. 2d 785, ¶ 1. Therefore, while not explicit, Lake Bluff IV extended Goode's analysis to cases where relief is sought pursuant to Wis. Stat. § 62.23(8), the statute relied upon by the Town in the present case.

¶ 28. In sum, we agree with the court of appeals' reading of Goode and Lake Bluff that when a governmental body exercises its authority pursuant to either Wis. Stat. §§ 59.69(11) or 62.23(8) and seeks injunctive relief, the circuit court retains the power to deny the relief sought and the property owners can defend themselves in equity. Winkelman II, 264 Wis. 2d 264, ¶ 14. Thus, we determine that the circuit court erred in concluding that it had no such power.

V

¶ 29. Having clarified that circuit courts have the power to consider equitable arguments in enforcement actions for injunctive relief, we next address whether that power may be exercised here. The Town contends that, unlike the property owners in Goode and Lake Bluff, the Winkelmans already had an opportunity to present their equitable arguments before the certiorari court and in fact did so. It warns that the decision of the court of appeals to remand in the case, "wreaks havoc on the orderly processes of judicial administration." The Town explains:

The equity hearing ordered by the [c]ourt of [alppeals creates the extraordinary situation of one circuit court exercising appellate powers over another circuit court's decision. Not only does this additional review grant the equity court power over the previously entered certio-rari decision, it denies finality to the certiorari court's decision and upsets the doctrines of issue and claim preclusion.

¶ 30. The difficulty we have with the Town's position is its premise that certiorari review is a proper forum for consideration of the equities. By its nature, certiorari review is limited in scope. Unless otherwise provided by statute, the traditional standards of common-law certiorari review apply. Hanlon v. Town of Milton, 2000 WI 61, ¶ 23, 235 Wis. 2d 597, 612 N.W.2d 44. These include determining (1) whether the board kept within its jurisdiction; (2) whether it acted according to law; (3) whether its actions were 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. Id. (citing State ex rel. Ruthenberg v. Annuity & Pension Bd., 89 Wis. 2d 463, 472, 474, 278 N.W.2d 835 (1979)). Although the Town maintains that the third prong of certiorari review reflects the same criterion that is required for making decisions on equitable arguments, we are not persuaded.

¶ 31. In its decision, the court of appeals noted, "we find no authority, and counsel at oral argument was unable to cite to any, that says that courts sit in equity in certiorari actions." Winkelman II, 264 Wis. 2d 264, ¶ 19. Like the court of appeals, we too have discovered no precedent that allows certiorari courts to sit in equity. Indeed, the Town acknowledges in its brief that, "Wisconsin Courts have developed no legal authority with regard to this issue." As a result, we agree with the court of appeals that, "[w]hile in certain circumstances a certiorari court has the authority to take additional evidence. . . simply allowing a court to add to the record does not mean that the court is then sitting in equity." Id. (citation omitted).

¶ 32. Despite the limitations of certiorari review, the court of appeals prohibited the Winkelmans from reasserting the argument previously rejected by the certiorari court concerning the contingency of their mortgage upon the rental income of the second residence. Id., ¶ 20. It did so under the theory of issue preclusion. Id. In its brief, the Town maintains that, "issue preclusion should not have been applied in this instance. Rather, claim preclusion was the appropriate doctrine to involve so as to prevent continuing piecemeal attack on the variance." We examine each of these doctrines in turn.

¶ 33. Under claim preclusion, " 'a final judgment is conclusive in all subsequent actions between the same parties as to all matters which were litigated or which might have been litigated in the former proceedings.' " Lindas v. Cady, 183 Wis. 2d 547, 558, 515 N.W.2d 458 (1994) (quoting DePratt v. West Bend Mutual Insurance Co., 113 Wis. 2d 306, 310, 334 N.W.2d 883 (1983)). The doctrine requires: (1) identity of the parties; (2) identity of the causes of action in the two suits; and (3) final judgment on the merits in a court of competent jurisdiction. Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995).

¶ 34. Issue preclusion, by comparison, is a more narrow doctrine. It is designed to limit the relitigation of issues that have been actually litigated in a previous action. Michele T. v. Crozier, 173 Wis. 2d 681, 687, 495 N.W.2d 327 (1993). The modern approach to issue preclusion requires courts to conduct a "fundamental fairness" analysis. Id. at 689. For this analysis, courts may consider several factors in deciding whether issue preclusion is equitable in a particular case.

¶ 35. In the end, we reject the use of either doctrine in this case. Claim preclusion is inapplicable as there is no "identity of the causes of actions in the two suits." In the first action, the Winkelmans sought cer-tiorari review to challenge the Town zoning board's decision to impose a raze condition on a variance. In the second, the Town brought suit to enforce that condition. Although there may have been some overlap in the arguments of the two cases, the claims themselves were separate and distinct.

¶ 36. Issue preclusion is also inappropriate for two of the reasons set forth in Crozier. First, we recognize that "significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation." Id. As noted above, certiorari review is limited in scope. The traditional criteria by which certiorari courts review a board's decision do not involve consideration of equitable arguments. The circuit court in an enforcement action for injunctive relief, by contrast, can consider all equitable issues.

¶ 37. Second, in general, property owners in the Winkelmans' position may have an "inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action." Id. The reason for this is that they have no way of knowing for certain at the certiorari review what relief the Town will be seeking. Here, there was over a three-year period between the initial certio-rari review and enforcement action. Ultimately, the Town sought to enforce the razing condition of the variance. It could have, however, sought forfeitures, pursued alternative relief, or simply declined to pursue relief altogether. The Winkelmans should not have to prepare equitable defenses for all possible relief.

VI

¶ 38. In sum, we conclude that the circuit court had subject matter jurisdiction to enter the orders in this action. Additionally, we agree with the court of appeals that the circuit court had the power to consider the Winkelmans' equitable arguments in the context of this enforcement action. Further, we determine that the circuit court may properly exercise that power here. Accordingly, we affirm the court of appeals.

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

DAVID T. PROSSER, J.

¶ 39. (concurring). I join the majority opinion in the belief that it correctly applies the court's decision in Forest County v. Goode, 219 Wis. 2d 654, 579 N.W.2d 715 (1998). The opinion states that the circuit court may "consider all equitable issues" in a zoning enforcement action under Wis. Stat. § 62.23(8). Majority op., ¶ 37.

¶ 40. I write separately because the majority opinion implies that the decision in Lake Bluff Housing Partners v. City of South Milwaukee, 2001 WI App 150, 246 Wis. 2d 785, 632 N.W.2d 485 (Lake Bluff IV), which extended the principles of the Goode case to enforcement actions under a different statute, is copacetic. It is not, and it should have been reversed.

¶ 41. In Lake Bluff IV, the court of appeals concluded that the circuit court "properly engaged in the equitable analysis under Goode. Its written decision addresses all the pertinent factors." Lake Bluff IV, ¶ 29 (emphasis added). In fact, however, the circuit court determined that some equitable factors — that is, equitable factors that had been raised and rejected in prior legal proceedings — could not be considered de novo by the court in an equity proceeding because the prior legal determinations were the law of the case. This determination by the circuit court in 2000, implicitly approved by the court of appeals in Lake Bluff IV, is plainly inconsistent with the holding and sound reasoning in this case.

¶ 42. This court declined to review Lake Bluff IV on January 31, 2002. My unpublished dissent to the denial of the petition for review is attached to this concurrence as Exhibit 1, so as to explain in detail my reservations about Lake Bluff IV.

¶ 43. For the foregoing reasons I concur.

EXHIBIT 1

DAVID T. PROSSER, J.

¶ 1. (dissenting). On June 6, 2000, the Circuit Court of Milwaukee County ordered Lake Bluff Housing Partners (Lake Bluff) to raze and remove two apartment buildings located on property overlooking Lake Michigan in the City of South Milwaukee. The two buildings contain 56 apartment units. As part of the court's judgment, Lake Bluff was ordered not to renew the leases of the 82 adults and 29 children, a number of whom are disabled, who were then living in these affordable-housing units, so that the two buildings could be torn down.

¶ 2. The circuit court acknowledged that its order would cost Lake Bluff the $4.2 million it had spent to construct the two buildings ($2.7 million of which was still owed on a mortgage), plus an additional $300,000 or more to raze the buildings and restore the land to a dust-free, erosion-free condition. It also acknowledged hardship and inconvenience to the tenants who would be displaced. Nonetheless, the court found that the equities favoring Lake Bluff were outweighed by the equities favoring the City of South Milwaukee. It concluded that requiring compliance with the City's R-A zoning classification, which limited the site to single family residences, would vindicate municipal authority to adopt comprehensive zoning ordinances and produce "more open area (about double the current green space)" and "greater access to air and light for area residents." In its lengthy decision, the circuit court found that Lake Bluff did "not have clean hands," that good faith did "not weigh in Lake Bluffs favor," that Lake Bluffs economic predicament was "self-created," and that Lake Bluff had made a calculated business decision to construct the buildings in violation of the zoning ordinance and consequently assumed all risks of its decision. These findings contradicted previous findings by other courts. The circuit court concluded that it could not consider several factors that had been relied upon by these other courts.

¶ 3. On appeal, the court of appeals affirmed. Lake Bluff Housing Partners v. City of South Milwaukee, 2001 WI App 150, 246 Wis. 2d 785, 632 N.W.2d 485.

¶ 4. Lake Bluff now petitions this court for review, but its petition is denied. Because Lake Bluffs petition raises important legal issues for this court's consideration, and because the ultimate decision to raze two relatively new apartment buildings at enormous economic loss and great inconvenience is astounding in light of the entire circumstances of the case, I dissent from our determination not to grant review.

hH

¶ 5. This dispute has lasted for nearly a decade and resulted in four published decisions from two separate cases. The first case led to Lake Bluff Housing Partners v. City of South Milwaukee, 188 Wis. 2d 230, 525 N.W.2d 59 (Ct. App. 1994) (Lake Bluff I), reversed by Lake Bluff Housing Partners v. City of South Milwaukee, 197 Wis. 2d 157, 540 N.W.2d 189 (1995) (Lake Bluff II). The second case produced Lake Bluff Housing Partners v. City of South Milwaukee, 222 Wis. 2d 222, 588 N.W.2d 45 (Ct. App. 1998) (Lake Bluff III), and Lake Bluff Housing Partners v. City of South Milwaukee, 2001 WI App 150 (Lake Bluff IV), and is the litigation presently before this court. Since 1993 three different circuit judges have ruled on the dispute. This court resolved the first case but has not reviewed the legal issues in the second case.

¶ 6. To understand the issues presented by the petition for review, one must understand the complete facts. The two apartment buildings ordered demolished are located on land that was zoned C-2 from 1965 until November 2, 1993. C-2 zoning permits multi-family development. Consistent with that zoning, other apartment complexes are situated in the immediate vicinity of the project.

¶ 7. In October 1992 Lake Bluff applied for a tax credit from the Wisconsin Housing and Economic Development Authority (WHEDA). Its intent was to construct a multi-family affordable- housing development on the land if it received the tax credit.

¶ 8. In December 1992 WHEDA awarded Lake Bluff a $266,903 site-specific credit and Lake Bluff then acquired the land for $294,000. Lake Bluff paid WHEDA a non-refundable fee of $16,314 to reserve the credit, understanding that the project had to be built and certificates of occupancy issued by December 31, 1994. Lake Bluff also had the property surveyed at a cost of $1150 and contracted with an architect to prepare project plans at a cost of $29,513. Prior to purchase of the land, Lake Bluff confirmed that the zoning was consistent with multi-family development.

¶ 9. In February 1993 Lake Bluff representatives met with the mayor, city administrator, building inspector, city engineer, and local alderperson of South Milwaukee to review initial plans for the project. Lake Bluffs initial plan was to build seven apartment buildings, each consisting of eight units. Over time, the plan evolved into a two-building project totaling 56 units. This evolution appears to have been influenced by changes required by the City. The City advised Lake Bluff that to obtain a building permit along the lake it would have to provide a bluff assessment establishing that the project would not cause bluff erosion for 100 years. The City also advised Lake Bluff that South Milwaukee parking requirements had changed and that Lake Bluff would have to modify its plans to meet the new requirements. Lake Bluff then modified its parking plans and commissioned a bluff erosion study at a cost of $4590.

¶ 10. At the February 1993 meeting, city officials reconfirmed that a multi-family project was a permitted use in that zone.

¶ 11. On April 28, 1993, a South Milwaukee resident, William J. Fox, III, sent a letter to a South Milwaukee alderman requesting that Lake Bluffs property be rezoned from C-2 to R-A for single-family unit development. On May 6,1993, the City referred the Fox letter to its Plan Commission for recommendation and report. The Plan Commission considered Mr. Fox's request at a May 24,1993 meeting and recommended to the Common Council that no building permits be issued while the rezoning request was under consideration. Lake Bluff was not informed of these developments and did not learn that South Milwaukee was considering a moratorium on the issuance of building permits for this specific property until June 22, 1993, almost two months after receipt of the Fox letter. As a result, Lake Bluff did not have the opportunity to participate in the May meetings of the Plan Commission and Common Council.

¶ 12. On July 6, 1993, the Common Council adopted a resolution imposing a moratorium on the issuance of building permits — solely on Lake Bluffs property — during consideration of the request to rezone the property.

¶ 13. On August 5, 1993, the Wisconsin Department of Industry, Labor and Human Relations approved Lake Bluffs architectural plans, entitling Lake Bluff to seek a footing and foundation permit from South Milwaukee. Obtaining this approval authorized Lake Bluff to begin construction of the buildings if it secured a building permit. That day, Lake Bluff submitted its application for a building permit to the City's building inspector, Michael Vesperman. The application was denied immediately because of the moratorium.

¶ 14. Circuit Judge John S. McCormick later found that following this denial, "Lake Bluff made several attempts to learn from city officials whether there were any deficiencies in its application" for the building permit or "whether the moratorium" against the property formed the sole basis for the denial. He further found that "[d] espite Lake Bluffs efforts to secure a review of its plans and specifications, South Milwaukee did not conduct a review and did not notify Lake Bluff of any deficiencies in its plans, specifications and application," even though the City normally processed such an application within one month of receipt.

¶ 15. On October 7, 1993, the City held a public hearing on the request to change the zoning of the property from C-2 to R-A. Then, on November 2, 1993, the Common Council passed an ordinance changing the zoning classification. This ordinance, which was intended to preclude multi-family development, applied only to Lake Bluffs property.

¶ 16. On March 10,1994, Lake Bluff initiated suit against South Milwaukee and its building inspector. The suit sought a writ of mandamus directing the building inspector to issue a building permit. Only after Lake Bluff commenced this suit did South Milwaukee conduct a comprehensive review of Lake Bluffs application. In its response, the City identified a number of specific deficiencies in the application, all of which were corrected in Lake Bluffs subsequent construction.

¶ 17. On April 29, 1994, Judge McCormick made an oral ruling and then issued a writ of mandamus as requested by Lake Bluff. In his written decision, Judge McCormick stated that Lake Bluff acquired vested rights before South Milwaukee's enactment of the moratorium prohibiting the issuance of building permits at the property. He concluded that "South Milwaukee's actions in denying Lake Bluffs application for a building permit were arbitrary, capricious and invalid." He also determined that South Milwaukee had knowledge of Lake Bluffs proposed development and of Lake Bluffs expenditure of significant sums of money toward accomplishing its development, before the City imposed the moratorium and rezoned the property.

¶ 18. The City appealed. While pursuing its appeal, the City did not seek a stay under Wis. Stat. § 808.07 of either the writ of mandamus or the judgment. Circuit Judge Raymond E. Gieringer later found that, "The City knew that Lake Bluff had to begin construction immediately upon its receipt of the writ of mandamus" because the two buildings had to be completed by December 31, 1994, in order for Lake Bluff to preserve the low-income-housing tax credit it had been awarded by WHEDA. Judge Gieringer reasoned that by appealing but not posting bond and seeking a stay in judgment, the City was attempting to protect itself from having to pay a large damage award to Lake Bluff in the event that the writ was sustained.

¶ 19. It was in these circumstances that Lake Bluff made the decision to begin construction. On October 4, 1994, in Lake Bluff I, the court of appeals affirmed the circuit court's writ. 188 Wis. 2d 230. However, the City's appeal undermined investor confidence in the credit, forcing Lake Bluff to surrender it back to WHEDA.

¶ 20. After losing in the court of appeals, the City petitioned this court for review. This court granted review on January 17, 1995.

¶ 21. On November 20,1995, eleven months after the court of appeals ruling, the supreme court reversed. Lake Bluff II, 197 Wis. 2d 157. This decision came 19 months after Judge McCormick had issued the writ of mandamus and several months after the construction had been completed. This court concluded that Lake Bluffs rights did not "vest" because it did not obtain a building permit or submit a completely error-free application for a building permit before the City succeeded in rezoning the site. Id. at 182. The court concluded:

The theory behind the vested rights doctrine is that a builder is proceeding on the basis of a reasonable expectation. ... Vested rights should only be obtained on the basis of strict and complete compliance with zoning and building code requirements, because a builder's proceeding in violation of applicable requirements is not reasonable.
In this case, it is undisputed that Lake Bluff never submitted an application for a building permit which complied with either the new single-family zoning or with the former C-2 zoning.

Id. at 175.

¶ 22. In Lake Bluff II, this court determined that the circuit court should not have granted the writ of mandamus ordering the City to issue a building permit. It ruled that for purposes of showing a "clear, specific legal right which is free from substantial doubt," as required in a mandamus action, neither Lake Bluff nor the court could rely on equitable principles. Therefore, it reversed, directing that the writ be quashed. Id. at 182.

¶ 23. Significantly, this court did not address the consequences of its decision — it did not ratify a particular remedy for the City. Rather, it put the City in a position to seek either demolition of the two buildings or some other remedy, in circuit court under Wis. Stat. § 62.23(8).

¶ 24. The second case was commenced by Lake Bluff in an attempt to block the City from trying to remove the buildings. Although Lake Bluff initially obtained a declaratory judgment estopping the City from revoking its building and occupancy permits, its judgment was reversed in Lake Bluff III, 222 Wis. 2d 222. Thereafter, Circuit Judge Francis T. Wasielewski issued the order to raze the buildings, and his order was affirmed by the court of appeals in Lake Bluff IV, 2001 WI App 150.

HH HH HH

¶ 25. On July 1, 1998, this court released its decision in Forest County v. Goode, 219 Wis. 2d 654, 579 N.W.2d 715 (1998). The issue in Goode was whether a circuit court retains equitable power to deny injunctive relief after a zoning ordinance violation has been proven. This court concluded that a circuit court retains its equitable power to deny injunctive relief to enforce a zoning ordinance.

¶ 26. The Goode decision came after the decisions in Lake Bluff I and Lake Bluff II, but shortly before the decision in Lake Bluff III. Hence, in Lake Bluff III, although the court of appeals reversed Judge Gieringer's declaratory judgment, it remanded the case for consideration of Goode. The court of appeals said:

Under Forest County v. Goode, the trial court must, apparently, still balance the competing equities in determining whether an abatement order under § 62.23(8), stats., is required....
We remand this matter to the trial court to consider whether Goode's analysis of § 59.69(11), stats., applies here, and, if so, whether Lake Bluff can marshal a sufficient showing that "there are compelling equitable reasons" why the trial court should not issue an order of abatement.

Lake Bluff III, 222 Wis. 2d at 231-32 (citations omitted).

¶ 27. The present petition for review raises critical legal questions about the circuit court's application of Goode in the unusual circumstances of this case. In Goode, this court provided the following guidance:

[T]he circuit court, sitting in equity, should weigh heavily the factors considered by boards of adjustment in determining unnecessary hardship, as well as traditional equitable considerations. Equitable defenses, such as laches, estoppel, or unclean hands should also he weighed in appropriate cases.
In deciding whether to deny a request for an injunction based upon a . .. zoning ordinance violation, the circuit court should take evidence and weigh any applicable equitable considerations including the substantial interest of the citizens of Wisconsin in the vigilant protection of the state's shorelands, the extent of the violation, the good faith of other parties, any available equitable defenses such as laches, estoppel or unclean hands, the degree of hardship compliance will create, and the role, if any, the government played in contributing to the violation. This list is not meant to be exhaustive but only to illustrate the importance of the circuit court's consideration of the substantial public interest in enforcing its . .. zoning ordinances.
Once a violation is established, a circuit court should grant the injunction except, in those rare cases, when it concludes, after examining the totality of the circumstances, there are compelling equitable reasons why the court should deny the request for an injunction. . .. [T]he circuit court also possesses equitable power to fashion an injunction that does justice. If the court is inclined to deny an injunction, it should first explore alternatives to the requested full injunction to determine whether a more equitably crafted injunction might be appropriate.

Goode, 219 Wis. 2d at 681-82, 684.

¶ 28. The circuit court responded to this directive by concluding that it was constrained not to consider certain equitable factors except as they had been considered in deciding legal questions in previous appellate decisions. The court said:

Insofar as the "totality of the circumstances" includes claims that have already been raised and decided by the appellate courts in this case, those decisions are part of the "totality of the circumstances." For instance, it has already been determined by the Court of Appeals that estoppel does not prevent South Milwaukee from enforcing the provisions of sec. 66.23(8), Stats. See Lake Bluff Housing, 222 Wis. 2d at 229. Furthermore, Lake Bluffs claim that equitable considerations require nullification of the Defendant's change in zoning from C-2 (apartments) to R-A (single family) was rejected by the Supreme Court. See Lake Bluff Housing, 197 Wis. 2d at 179. Likewise, the Supreme Court determined that Lake Bluff had no vested rights in the issuance of building permits under the R-A or C-2 zoning. Lake Bluff Housing, 197 Wis. 2d at 175. Moreover, South Milwaukee's building moratorium was found to be legal for the purposes of these proceedings. Lake Bluff Housing Partners, 197 Wis. 2d at 163. These determinations, and others mentioned below, have become "the law of the case which must be followed in all subsequent proceedings in the trial court or on later appeal." Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 38 (1989). The determinations of the appellate courts in this matter will be considered a part of the "totality of the circumstances" and the Goode inquiry will be made within the context of these decisions.

¶ 29. The petitioner in this case now asks the court to clarify the effect of prior appellate court legal holdings on future equitable analyses, and to determine the implications of the "law of the case doctrine" on future equitable evaluations. These are important questions because they will determine both the scope of the circuit court's independent fact-finding in equity and whether Forest County v. Goode has potency in remand situations. They probe what this court intended in Goode and whether the circuit court interpreted Goode too narrowly. The petition argues, persuasively, that the circuit court's legal interpretation of Goode was simply incorrect as a matter of law, impairing the circuit court's exercise of discretion.

¶ 30. At the outset of this dispute, Circuit Judge McCormick found that Lake Bluff relied on existing zoning when it purchased the property, advised the City of its intentions, expended additional money after it had informed the City of its plans, and then was not timely alerted when the City unexpectedly began to change its position. Judge McCormick found that the City did not identify the deficiencies in Lake Bluffs application until after Lake Bluff filed its first lawsuit. Thus, because of the City's actions, Lake Bluff was effectively prevented from meeting the test for vested rights this court established in Lake Bluff II. Judge McCormick concluded that the City's actions in denying Lake Bluffs application for a building permit were "arbitrary, capricious and invalid."

¶ 31. Judge Wasielewski determined that these equitable factors simply could not be considered de novo in his determination of whether or not to issue the raze order. The court of appeals affirmed in a published decision, ruling that "[b]ecause the trial court balanced all of the equitable considerations under Forest County v. Goode, there was no erroneous exercise of discretion." Lake Bluff IV, 2001 WI App 150 at ¶ 1 (citation omitted). These decisions have ramifications for litigants far beyond this dispute. They will also affect the procedures and attitude of local officials as they consider zoning matters.

¶ 32. In his dissent in Lake Bluff I, Judge Ralph Adam Fine wrote eloquently that: "The law must be sufficiently predictable so that men and women can conduct their business with the assurance that the rules are not going to change in mid-stream." 188 Wis. 2d at 259. Perhaps, someday, someone will explain why this just maxim does not apply to Lake Bluff.

        Town of Delafield v. Winkelman, 2003 WI App 92, 264 Wis. 2d 264, 663 N.W.2d 324 (reversing a decision of the circuit court for Waukesha County. Judge Patrick L. Snyder issued the oral ruling to the issue on appeal. As a result of judicial rotation, Judge Robert G. Mawdsley issued the written order implementing the oral ruling.).

       According to the Town's petition for review, the Winkel-mans no longer use one home as a residence; they now live elsewhere.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. Wis. Stat. § 62.23(8) provides:
      (8) OTHER MEASURES OF ENFORCEMENT AND REMEDIES; PENALTY. Any building erected, constructed or reconstructed in violation of this section or regulations adopted pursuant thereto shall be deemed an unlawful structure, and the building inspector or city attorney or other official designated by the council may bring action to enjoin such erection, construction or reconstruction, or cause such structure to be vacated or removed. It shall be unlawful to erect, construct or reconstruct any building or structure in violation of this section or regulations adopted pursuant thereto. Any person, firm or corporation violating such provisions shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not more than $500. Each and every day during which said illegal erection, construction or reconstruction continues shall be deemed a separate offense. In case any building or structure is or is proposed to be erected, constructed or reconstructed, or any land is or is proposed to be used in violation of this section or regulations adopted pursuant thereto, the building inspector or the city attorney or any adjacent or neighboring property owner who would be specially damaged by such violation, may, in addition to other remedies provided by law, institute injunction, mandamus, abatement or any other appropriate action or proceeding to prevent or enjoin or abate or remove such unlawful erection, construction or reconstruction.

       Common-law certiorari is limited to determining: (1) whether the board kept within its jurisdiction; (2) whether it acted according to law; (3) whether its actions were 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 of determination in question. Hanlon v. Town of Milton, 2000 WI 61, ¶ 23, 235 Wis. 2d 597, 612 N.W.2d 44.

       Wisconsin Stat. § 59.69(11) provides:
      (11) PROCEDURE FOR ENFORCEMENT OF COUNTY ZONING ORDINANCE. The board shall prescribe rules, regulations and administrative procedures, and provide such administrative personnel as it considers necessary for the enforcement of this section, and all ordinances enacted in pursuance thereof. The rules and regulations and the districts, setback building lines and regulations authorized by this section, shall be prescribed by ordinances which shall he declared to be for the purpose of promoting the public health, safety and general welfare. The ordinances shall be enforced by appropriate forfeitures. Compliance with such ordinances may also be enforced by injunctional order at the suit of the county or an owner of real estate within the district affected by the regulation.

       Courts may consider some or all of the following factors to protect the rights of all parties to a full and fair adjudication of all issues involved in the action:
      (1) Could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment;
      (2) Is the question one of law that involves two distinct claims or intervening contextual shifts in the law;
      (3) Do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue;
      (4) Have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; or
      (5) Are matters of public policy and individual circumstances involved that would render the application of collateral estoppel to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action?

        Michelle T. v. Crozier, 173 Wis. 2d 681, 688-89, 495 N.W.2d 327 (1993) (citing the Restatement (Second) of Judgments, "Exceptions to the General Rule of Issue Preclusion" sec. 28 at 273-74).

       South Milwaukee's city attorney advised the Plan Commission that a moratorium on building permits for the property could be imposed by a resolution of the common council. Lake Bluff Housing Partners v. City of South Milwaukee, 188 Wis. 2d 230, 235-36, 525 N.W.2d 59 (Ct. App. 1994) (Lake Bluff I). At oral argument before the court of appeals, however, the city attorney advised the court of his doubts regarding the legality of the moratorium. He indicated that, in all likelihood, a moratorium enacted by ordinance would have been lawful but a moratorium by resolution was of dubious legality. Id. at 236 n.1. Likewise, in Lake Bluff Housing Partners v. City of South Milwaukee, 197 Wis. 2d 157, 163 n.2, 540 N.W.2d 189 (1995) (Lake Bluff II), this court noted that "counsel for defendant [City of South Milwaukee] stated that this moratorium was of questionable legality." However, the court went on to say that because "the moratorium was never challenged... we will accept it as valid for purposes of this review." Id. Lake Bluff insists now that it did challenge the legality of the moratorium. See Petition for Review at 15 n.3. In any event, this court accepted the moratorium as valid only for purposes of its review in the 1995 case.

       Two appellate decisions have stated otherwise. In Lake Bluff Housing Partners v. City of South Milwaukee, 222 Wis. 2d 222, 226, 588 N.W.2d 45 (Ct. App. 1998) {Lake Bluff III), the court said that "Lake Bluff was able to take advantage of the tax credits allocated for the development." In Lake Bluff Housing Partners v. City of South Milwaukee, 2001 WI App 150, ¶ 24, 246 Wis. 2d 758, 632 N.W.2d 485 (Lake Bluff IV), the court said that "Lake Bluffs contention that construction had to begin because the project needed to be completed by December 1994 was not correct. Lake Bluff failed to meet the deadline, and still secured tax credits for the project" (emphasis added).
      In the period between these two decisions, Judge Francis T. Wasielewski reported that Lake Bluff had to give up the credits before using them. The court wrote:
      Michael Lerner testified that in 1992, Lake Bluff was awarded $2.6 million in credits for this project over a 10 year period. To preserve its right to the credits, it had to build the project and obtain certificates of occupancy by December 31, 1994.
      This deadline was not met. Occupancy permits for the 2 buildings were not issued until August and September, 1995. Some time in the late summer or early fall of 1994, Lake Bluff surrendered its credits to WHEDA. Mr. Lerner said that the continuing litigation over the legality of the Lake Bluff Project dampened the enthusiasm of potential bidders... . The continuing litigation "put a cloud over the financial viability of the tax credits" (emphasis added).

       When Circuit Judge Raymond E. Gieringer considered this dispute, he found as fact that: "In its decision, the Supreme Court remanded this case to the circuit court 'with instructions to quash the writ.' The Supreme Court made no Order with regard to the Buildings, the building permits or the occupancy permits."


author: ANN WALSH BRADLEY, J. SHIRLEY S. ABRAHAMSON, C.J.

text:
    State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Steven G. Walters, Defendant-Appellant.
    Supreme Court

      No. 01-1916-CR.

      Oral Argument January 13, 2004.

      Decided March 9, 2004.

    2004 WI 18
    (Also reported in 675 N.W.2d 778.)

      For the plaintiff-respondent-petitioner the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general..
    For the defendant-appellant there was a brief by David A. Danz and Danz Law Offices, LLC, Elkhorn, and oral argument by David A. Danz.

   ANN WALSH BRADLEY, J.

¶ 1. The petitioner, State of Wisconsin, seeks review of a published decision of the court of appeals that reversed the defendant's conviction on three counts of sexual assault of a child. The State asserts that the court of appeals wrongfully interpreted State v. Davis, 2002 WI 75, 254 Wis. 2d 1, 645 N.W.2d 913, as "compelling" the admission of the defendant's proffered Richard A.P. evidence, which compared the personality characteristics of the defendant with the personality characteristics of known sex offenders. Additionally, the State claims the court of appeals erred in concluding that the circuit court erroneously exercised its discretion in excluding the evidence.

¶ 2. We take this opportunity to clarify that the admissibility of Richard A.P. evidence is not compelled by Davis, but rather is subject to the discretionary determination of the circuit court. Because we conclude that the circuit court here did not erroneously exercise its discretion in excluding the proffered evidence, we reverse the court of appeals.

l

¶ 3. On December 28,1998, the defendant, Steven G. Walters, was charged with three counts of first-degree sexual assault of a child, contrary to Wis. Stat. 948.02(1) (1999-2000). Prior to trial and in response to discovery demands, the parties exchanged witness lists. Walters notified the State that he planned to present expert testimony from Dr. Ralph Underwager and Ms. Hollida Wakefield. He intended that these two experts testify as to adult behaviors towards children and eliciting statements and the characteristics of child molesters.

¶ 4. In response, the State filed a motion in limine, asking the circuit court to preclude Walters from calling any expert "to testify that the defendant is less likely to have committed this sexual assault because of some psychological make-up." In addition to challenging the witnesses' expertise and the reliability of their opinions, the State claimed that the testimony would not satisfy the requirements of State v. Richard A.P. "which the state believes was wrongfully decided . ..." The State further argued that such testimony would invade the province of the jury and that its probative value was outweighed by its prejudice to the State.

¶ 5. Circuit Court Judge John R. Race presided over pretrial hearings, spanning a period of three days. At these hearings, Walters made an offer of proof as to the testimony of Ms. Wakefield and Dr. Underwager.

¶ 6. Wakefield testified that she had conducted several psychological tests on Walters and was prepared to testify as to Walters's personality characteristics and those of known sex offenders. The record reveals the following exchange between Walters's counsel and Ms. Wakefield:

Q. So as an offer of proof, you would be prepared to testify as an expert as it related to the defendant's character?
A. His personality characteristics.
Q. And compare that against known sex offenders?
A. Yes, I would also talk about the characteristics of known sexual offenders, and I would assume that the finder of fact would he the one to draw any conclusions from that.

Wakefield explained that she would not give any opinion on the ultimate issues of fact. Rather, she stated that her testimony "gives information for the trier of fact in weighing probabilities."

¶ 7. Judge Race issued a memorandum decision on December 20, 1999, in which he concluded that Ms. Wakefield's testimony was admissible. Judge Race observed that "[w]hether or not the state likes the Richard A.P. case or not, it is still the law which I must follow. . . ." He then denied the State's motion to exclude the evidence.

¶ 8. Pursuant to the standardized judicial rotation in Walworth County, Circuit Court Judge James L. Carlson assumed the felony court assignment, replacing Judge Race in the case. On May 17, 2000, the State filed a motion asking Judge Carlson to reconsider Judge Race's ruling. In this motion, the State alleged that "Judge Race was mistaken when he stated that he must follow the holding in Richard A.R" and "[ojbviously Richard A.P. is a wrong decision and contrary to precedent nation wide."

¶ 9. Judge Carlson conducted hearings on the State's motion and ordered Walters to present a synopsis of the pretrial offer of proof testimony. He decided to exclude the Richard A.P. evidence, concluding that it had minimal probative value and was substantially outweighed by unfair prejudice, confusion of the issues, and the danger that' it might mislead the jury. He explained:

[T]o suggest that statistical analyses of people in prison with psychological disorders and their personality profiles' would make it less likely that this defendant would offend is of minimal probative value.
I'm not saying it doesn't have any probative value. Minimal probative value in comparison to — Well, I'm employing 904.03. Relevant evidence can be excluded if the probative value is substantially outweighed by unfair prejudice, confusion of the issues or the fact that it might he misleading to the jury. I think all of those would apply here.
I think the probative value is slight, from just my own experience as a judge, seeing that all types of people can be involved in sexual assaults, whether they have a psychological profile of a sexual offender or not, and also from the studies which have been submitted in the briefs. I think in that regard, John - I'm not sure if that cite is correct. It says 1 John E.B. Meyer, evidence in child abuse and neglect cases, Section 5.54 ed. 2d. I would say third edition 1997. Just say that it's not reliable. Profile testimony is not reliable.
And I heard -1 heard the lengthy testimony that these witnesses gave, and I think it would just - it would be - it would obscure the real issues here of credibility of witnesses and the jury function of weighing that credibility to have substantial evidence about this wandering - I just have to admit they went all over. Your outline summary even takes two, three pages. Would be substantially confusing to the jury and it would cause unfair prejudice to the State because again, it would cause them to, in this case and in future' cases, to have a battle of experts on a matter that is of slight probative value. And I think that could confuse the jury and mislead the jury.
So I'm rejecting the use of these expert witnesses to get into the issue of profile evidence for the reasons I've stated.

¶ 10. Walters then filed a motion for an interlocutory appeal, which was denied. Subsequently, a jury found him guilty of three counts of sexual assault of a child.

¶ 11. On appeal, Walters claimed that Judge Carlson had erred in granting the State's motion for reconsideration and prohibiting him from offering expert testimony regarding profile and personality characteristics. The court of appeals agreed and reversed his conviction.

¶ 12. In its decision, the court of appeals concluded that the circuit court did not apply the proper legal standard in excluding the proffered Richard A.P. evidence. State v. Walters, 2003 WI App 24, 260 Wis. 2d 210, ¶ 24, 659 N.W.2d 151. It explained that while the circuit court had conducted a relevancy analysis, "the analysis was colored by the trial court's belief that Richard A.P. was seriously limited as authority and that other jurisdictions have held such evidence to be inadmissible." Id., ¶ 16. The court determined that the evidence had probative value and was not outweighed by any possible danger of unfair prejudice. Id., ¶ 24. Accordingly, it observed that State v. Davis "compels a different result here than the one arrived at by the trial court." Id., ¶ 17.

I — I hH

¶ 13. This case addresses a circuit court's eviden-tiary ruling that excluded expert testimony comparing the personality characteristics of the defendant with the personality characteristics of known sex offenders. We review a circuit court's decision to exclude such evidence under the erroneous exercise of discretion standard. State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983).

¶ 14. An appellate court will uphold an eviden-tiary ruling if it concludes that the circuit court examined the relevant facts, applied a proper standard of law, used a demonstrated rational process, and reached a conclusion that a reasonable judge could reach. Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982). Any question that arises in reviewing whether the circuit court applied a proper legal standard, however, presents a question of law subject to independent appellate review. City of Madison v. Wisconsin Dep't of Workforce Dev., 2003 WI 76, ¶ 10, 262 Wis. 2d 652, 664 N.W.2d 584.

HH HH H-4

¶ 15. The primary thrust of the State's argument is that the court of appeals misapplied this court's decision in Davis and wrongfully viewed Davis as "compelling" the admission of Richard A.P. testimony. Additionally, the State contends the court of appeals erred when it reversed the discretionary determination of the circuit court to exclude the proffered evidence.

¶ 16. In order to understand the issues in this case, we must first examine the law governing the admissibility of Richard A.P. evidence. The term "Richard A.P. evidence" comes from a decision of the court of appeals in which a defendant accused of molesting a child sought to introduce character evidence through the testimony of a psychologist. State v. Richard A.P., 223 Wis. 2d 777, 795, 589 N.W.2d 674 (Ct. App. 1998). The testimony was intended to demonstrate that the defendant did not exhibit character traits consistent with a sexual disorder such as pedophilia. Id. The defendant's expert planned to testify that the defendant's "sexual history and responses to specific testing about his sexual behavior did not show evidence of any diagnosable sexual disorder." Id. at 791. Additionally, the expert would testify that absent such a diagnosable disorder, it was unlikely that such a person would molest a child. Id.

¶ 17. The court of appeals in Richard A.R concluded that such evidence was both relevant and admissible under Wis. Stat. § 907.02, the general rule governing expert testimony, and Wis. Stat. § 904.04(1)(a), the rule governing character evidence. Id. at 795. It observed that such testimony would have assisted the jury in determining the likelihood that the defendant committed the charged offenses. Id. at 792. Moreover, it cited support for the proposition that such "arguments or evidence about character profile, which seek to explain conduct or the absence of it, must be supported by competent underlying expert testimony." Id. at 794 (citing King v. State, 75 Wis. 2d 26, 248 N.W.2d 458 (1977), and State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990)).

¶ 18. In State v. Davis, this court revisited Richard A.P. and addressed whether such evidence is generally admissible at trial. Davis, 254 Wis. 2d 1, ¶ 2. There, the defendant's expert intended to testify that the defendant did not exhibit character traits consistent with a sexual disorder such as pedophilia. Furthermore, because the defendant did not possess such character traits, he would have been unlikely to commit a sexual assault on his daughter. Id., ¶ 5. The State argued for a blanket restriction on Richard A.P. evidence on grounds that it has low probative value and is substantially outweighed by its inherent dangers. Id., ¶ 14.

¶ 19. The court in Davis expressly rejected the State's request for a blanket restriction and declined to overrule Richard A.P. Instead, it concluded that the rules on character evidence and expert testimony allow for the admissibility of Richard A.P. evidence. Id., ¶ 16.

¶ 20. Specifically, the court determined that traits regarding the defendant's propensity to commit sexual assault are pertinent traits of his character. Id., ¶ 18. It noted that such evidence has probative value in sexual assault cases, "where there is often no neutral witness to the assault and there is seldom any physical evidence implicating the defendant." Id. Additionally, the court observed that such evidence might be useful to the jury "helping it to determine a fact in issue, that is, whether the defendant committed the crime, by showing circumstantial evidence of the defendant's innocence." Id.

¶ 21. However, the Davis court observed that a circuit court is entrusted to act as a gatekeeper with the power to exclude unduly prejudicial evidence. Id., ¶ 21. It explained that, "the circuit court retains discretion in admitting such evidence and must carefully scrutinize such Richard A.P. expert testimony in each case for its admissibility." Id.

¶ 22. In the present case, the State contends that the court of appeals wrongfully interpreted Davis as compelling the admission of the defendant's proffered Richard A.P. evidence. In support of its argument, the State directs this court's attention to the following excerpt of the court of appeals' opinion: "Thus while we agree with the State that Davis applies to the case at hand, we conclude that Davis compels a different result here than the one arrived at by the trial court." Walters, 260 Wis. 2d 210, ¶ 17.

¶ 23. However, in focusing on the excerpted portion of the opinion, the State fails to give any import to the several passages that consistently emphasize that although Richard A.P. evidence maybe admissible, such admissibility is subject to the sound discretion of the circuit court. ("The discretion to admit or exclude Richard A.P evidence remains with the trial court." Id., ¶ 14. "[T]he rules on character evidence and expert testimony allow for the admissibility of Richard A.P. evidence.. . Id., ¶ 18. "Again, the admissibility of expert testimony is committed to the discretion of the trial court." Id., ¶ 28.)

¶ 24. Thus, we read the court of appeals' opinion here differently than does the State. To the extent that the opinion can be read to interpret Davis as compelling the admission of proffered Richard A.P. evidence, however, we take this opportunity to clarify and reemphasize that the decision to admit or exclude Richard A.P. evidence remains a discretionary determination.

¶ 25. Richard A.P. evidence, like other expert evidence, is subject to the requirements of the rules governing the admissibility of evidence. These include not only the rules governing character evidence and expert testimony, but also Wis. Stat. § 904.03, the rule governing the exclusion of otherwise relevant evidence.

¶ 26. The Davis court aptly set forth the framework of analysis in evaluating the admissibility of Richard A.P. evidence. It instructs:

The rules on character evidence and expert testimony allow for the admissibility of Richard A.P. evidence. Under our rules of evidence, a defendant may introduce "pertinent trait[s]" of his or her character as evidence. Wis. Stat. § 904.04(l)(a). "Pertinent" refers to the relevance of the traits. 7 Daniel Blinka, Wisconsin Practice: Wisconsin Evidence § 404.4, at 133 (2d ed. 2001). Thus, like all admissible evidence, character evidence must be relevant to the facts at issue. Relevancy has two facets: (1) the evidence must relate to a fact or proposition that is of consequence to the determination of the action and (2) the evidence must have probative value, that is, a tendency to establish those consequential propositions. Id. at § 401.1 at 82.

Davis, 254 Wis. 2d 1, ¶ 16.

¶ 27. In addressing the expert testimony necessary for Richard A.P. evidence, the Davis court advised:

Expert testimony is permitted when specialized knowledge will assist the trier of fact. See Wis. Stat. § 907.02. Again, relevancy of the testimony is an essential requirement for the admissibility of such expert testimony. Blinka, supra, § 702.2, at 473. In addition, admissibility of the expert testimony depends on the qualifications of the expert and the usefulness of the testimony to the trier of fact. Id. The testimony is useful if it will assist the trier of fact to understand evidence or to determine a fact in issue. Id.; Wis. Stat. § 907.02.

Id., ¶ 17.

¶ 28. Finally, we note that circuit courts may employ the balancing test of Wis. Stat. § 904.03. Under this rule, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Wis. Stat. § 904.03.

IV

¶ 29. Having established that Davis does not compel the admission of Richard A.P. evidence, we turn next to the issue of whether the circuit court erroneously exercised its discretion. The court of appeals determined that the circuit court’s analysis was "colored" by its belief that Richard A.P. was seriously limited as authority and that other jurisdictions have held such evidence to be inadmissible. Walters, 260 Wis. 2d 210, ¶ 16. Although we note concerns about the circuit court's analysis, we nevertheless determine that the record supports its exercise of discretion in excluding the evidence.

¶ 30. As discussed above, Davis requires that Richard A.P. evidence relate to pertinent traits of a defendant's character. It determined that traits relating to the likelihood that a defendant committed a sexual assault are relevant. Here, the circuit court concluded that Walters's proffered evidence was relevant.

¶ 31. However, while the circuit court found the evidence to be relevant, it concluded that it was of "minimal probative value." Probative value is a product of relevance and an assessment of what the evidence is likely to add to the case. 7 Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence § 403.1, at 114 (2d ed. 2001). In reaching its conclusion that the evidence was minimally probative, the circuit court relied upon its experience as a judge in observing the types of individuals that have been involved in sexual assaults as well as studies supplied by the parties in their briefs. The circuit court also cited a treatise indicating that profile testimony was unreliable.

¶ 32. After determining that the evidence was minimally probative, the circuit court went a step further than the Davis court and applied Wis. Stat. § 904.03. When applying § 904.03, a circuit court is required to compare the probative value of the evidence against other countervailing factors. Id. at 113.

¶ 33. The circuit court conducted such a balancing test and considered the potential for the confusion of the issues, and its propensity to mislead the jury. The court stated that the proffered evidence would be inappropriately "lengthy" and "wandering" and would "obscure" the real issue of witness credibility.

¶ 34. Although a Wis. Stat. § 904.03 analysis was the basis of the determination to exclude the evidence, the circuit court nevertheless referenced a treatise indicating that such evidence is unreliable. Such a reference is a cause for concern here because an argument that the evidence was unreliable was offered as grounds to exclude outright similar testimony in Davis. There, the court noted that in Wisconsin, "the reliability of expert testimony is an issue for the trier of fact, not the circuit court as a predicate for admissibility." Davis, 254 Wis. 2d 1, ¶ 22.

¶ 35. Likewise, the circuit court's conclusion that the "battle of experts" would cause the State unfair prejudice raises concern. Again, this issue was advanced by the State in Davis. The Davis court found this argument unpersuasive, noting that, "a battle between experts is a frequent occurrence in criminal cases where specialized knowledge on a relevant issue is required." 254 Wis. 2d 1, ¶ 20.

¶ 36. However, on balance, the record supports the circuit court's conclusion that the minimal probative value of Walters's proffered expert testimony was substantially outweighed by the danger that the issues would be confused and the jury would be misled. The circuit court determined first that although relevant, the evidence was minimally probative. Character evidence as proof of conduct may properly be determined to be of low probative value in a given case. See Blinka, Wisconsin Practice: Wisconsin Evidence, § 404.1, at 124.

¶ 37. Here, due to the victims' late reporting, there was a six-year gap between the first alleged assault and Wakefield's evaluations. During the time frame when the assaults occurred, Walters had a drinking problem. However, when Wakefield evaluated him, he told her that he was no longer drinking and no longer believed that he had a problem with alcohol. At the offer of proof hearing, Wakefield testified that the tests administered assess personality, and that personalities are generally consistent, but can be altered by the consumption of alcohol. She indicated that her test results did not take into account whether the alleged assaultive behavior was triggered by alcohol consumption. This circumstance further minimized the probative value of the expert testimony.

¶ 38. At the motion for reconsideration, the circuit court remarked that the proffered testimony did not reach the level of the offer of proof as characterized by the court in Richard A.P. Unlike the offers of proof in both Richard A.P. and Davis, Wakefield would not have offered any conclusions as to Walters's propensity to commit sexual assault. Rather she testified:

What I've done is assess Mr. Walters' personality so that the finder of fact can look at it. And I can talk about what kind of personality child sexual abusers are more likely to have. But clearly you are always going to have some people who aren't child abusers who have the same kind of problems and you are going to find some child abusers who don't have them, but it's a matter of probability. These are characteristics found more often in child sexual abusers, and I can talk about those.

Given the nature of the evidence, the circumstances of the testing, and the scope of the proffered testimony, we determine that the circuit court arrived at a conclusion that a reasonable judge could make when it assessed the evidence to be of low probative value.

¶ 39. The record also supports the circuit court's opinion that the testimony would be sufficiently "lengthy" and "wandering" and could mislead the jury. The defense expert conducted a battery of seven psychological evaluations on the defendant, the results of which would be detailed at trial. An expert would need to explain each of these evaluations to the jury, vouch for their reliability, in addition to explaining the results of the evaluations and the conclusions drawn from them.

¶ 40. Without this expert testimony, the testimonial portion of Walters's trial lasted one day. In contrast, the offer of proof hearing consumed approximately 165 pages of transcript over three days of hearing. Additionally, the defense counsel initially informed Judge Carlson that he had anticipated the experts' testimony would add another three days to the trial. In sum, the admission of this evidence potentially would have increased significantly the length of the trial.

¶ 41. In light of the scope and length of the proffered expert testimony in relation to the rest of the testimony, we determine that the circuit court arrived at a conclusion that a reasonable judge could make and that this testimony could have misled the jury and confused the issues in this case. Given the time spent on collateral forays, it was also reasonable for the circuit court to conclude that these dangers substantially outweighed the probative value of the expert testimony here.

¶ 42. Thus, we determine that there is neither a blanket restriction of Richard A.P. evidence nor is it compelled. Rather, courts must scrutinize such evidence on a case-by-case basis to assess admissibility. Such evidence has probative value in sexual assault cases where there often is no neutral witness to the assault and seldom any physical evidence implicating the defendant. Davis, 254 Wis. 2d 1, ¶ 18. Moreover, it may be of special importance to the jury by helping it to determine whether the defendant committed the crime, by showing circumstantial evidence of the defendant's innocence. Id.

¶ 43. We conclude that the circuit court did not erroneously exercise its discretion in excluding the proffered testimony. Although the State questioned the precedential value of Richard A.P. at the motion for reconsideration, ultimately the court determined the testimony to be relevant, applied a Wis. Stat. § 904.03 analysis, and reached a conclusion that a reasonable judge could reach. Accordingly, we uphold the eviden-tiary ruling of the circuit court.

V

¶ 44. In sum, we determine that the admissibility of Richard A.P. evidence is not compelled by Davis, but rather is subject to the sound discretion of the circuit court. Because we conclude that the circuit court here did not erroneously exercise its discretion in excluding the proffered evidence, we reverse the court of appeals.

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

SHIRLEY S. ABRAHAMSON, C.J.

¶ 45. (dissenting). I agree with the court of appeals that the circuit court did not apply the proper legal standard and therefore erred in prohibiting the defendant from presenting his evidence. I also agree with the majority opinion's interpretation of our decision in State v. Davis, 2002 WI 75, 254 Wis. 2d 1, 645 N.W.2d 913, that circuit courts are not required to admit Richard A.P. evidence but may exercise their discretion in deciding whether to admit such evidence.

¶ 46. I dissent because I disagree with the majority opinion's conclusion that the circuit court properly exercised its discretion with respect to the proffered evidence in this case.

¶ 47. The appropriate standard of review in evaluating whether a circuit court properly excluded evidence is whether the circuit court erroneously exercised its discretion. This court has often said that "a discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination." An appellate court will affirm a circuit court's discretionary decision as long as the circuit court "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." Therefore, the record on appeal must "reflect the circuit court's reasoned application of the appropriate legal standard to the relevant facts in the case." "If a judge bases the exercise of his discretion upon an error of law, his conduct is beyond the limits of discretion."

¶ 48. In making the decision to exclude the proffered Richard A.P. evidence in this case, the circuit court made the following statements on the record when excluding the evidence:

I've heard [the expert] testimony, and in my opinion, it invades the province of the jury. That is the function of the jury to weigh the testimony and the probabilities. And to suggest that statistical analyses of people in prison with psychological disorders and their personality profiles would make it less likely that the defendant would offend is of minimal probative value.
I'm not saying it doesn't have any probative value. Minimal probative value in comparison to — Well, I'm employing 904.03. Relevant evidence can be excluded if the probative value is substantially outweighed by unfair prejudice, confusion of the issues or the fact that it might be misleading to the jury. I think all of those would apply here.
I think the probative value is slight, from just my own experience as a judge, seeing that all types of people can be involved in sexual assaults, whether they have a psychological profile of a sexual offender or not, and also from the studies which have been submitted in the briefs. I think in that regard, John — I'm not sure if that cite is correct. It says 1 John E.B. Meyer, evidence in child abuse and neglect cases, Section 5.54 ed. 2d. I would say third edition 1997. Just says that it's not reliable. Profile testimony is not reliable.
And I heard — I heard the lengthy testimony that these witnesses gave, and I think it would just — it would be — it would obscure the real issues here of credibility of witnesses and the jury function of weighing that credibility to have substantial evidence about this wandering — I just have to admit they went all over. Your outline summary even takes two, three pages. Would be substantially confusing to the jury and it would cause them to, in this case and in future cases, to have a battle of experts on a matter that is of slight probative value. And I think that could confuse the jury and mislead the jury.
So I'm rejecting the use of these expert witnesses to get into the issue of profile evidence for the reasons I've stated.

¶ 49. As I understand the circuit court's ruling on this issue, it provided eight justifications for its decision to exclude the Richard A.P. evidence. Those justifications are as follows:

(1) Richard A.R evidence is relevant but of minimal probative value.
(2) The judge's own "experience" suggested that all sorts of people can be involved in sexual assaults.
(3) Profile testimony is not reliable.
(4) The Richard A.P. evidence would obscure the real issue of credibility.
(5) The circuit court was concerned that the evidence "wander[ed]" and "went all over."
(6) The Richard A.P. evidence would be substantially confusing to the jury.
(7) The evidence would cause unfair prejudice to the State because of the battle of experts on a matter of slight probative value.
(8) The evidence might confuse and mislead the jury.

¶ 50. I address each of circuit court's reasons in turn. Upon examining these reasons, I cannot conclude that the circuit court properly exercised its discretion in the present case. A number of the circuit court's conclusions, as pointed out by the majority opinion, are based on misstatements of the applicable law. Others appear to invade the province of the jury, to give the jury too little credit with regard to its ability to understand legal questions, or to fail to appreciate the significance of the evidence for the defense.

(1)

¶ 51. The circuit court concluded in this case that the evidence was relevant but of minimal probative value. Richard A.P. testimony is a combination of character evidence and expert testimony that is relevant to an accused's likelihood to commit a sexual assault. This evidence not only is probative but also may be "extremely important," particularly in "he said, she said" cases. We explained the probative value of the evidence as follows:

[T]his evidence has probative value in sexual assault cases, where there is often no neutral witness to the assault and there is seldom any physical evidence implicating the defendant. Such profile evidence may be extremely important to the defense. Such testimony may also be useful to the trier of fact, helping it to determine a fact in issue, that is, whether the defendant committed the crime, by showing circumstantial evidence of the defendant's innocence.

This is a "he said, they said" case. The evidence is of more than minimal probative value. The circuit court erred in evaluating the probative value of the evidence.

(2)

¶ 52. Second, the circuit court judge claimed that his personal experience suggested that all sorts of people can be involved in sexual assaults. Although the circuit court does not clearly set forth its reasoning, the circuit court seems to be arguing that because the various individuals the judge had seen in sexual assault cases did not appear to him to be of a similar profile, such profile evidence was not reliable.

¶ 53. This argument is quite similar to the arguments set forth by numerous courts that have chosen to exclude such evidence. Indeed the circuit court referred to a treatise that in turn referred to a number of non-Wisconsin cases that have ruled that this type of "[pjrofile testimony is not reliable." The circuit court should have relied on State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998), a published precedential decision, not on a treatise or other state court decisions. Richard A.R did not follow these other state courts, and this court has explicitly rejected their views. The circuit court misinterpreted the applicable law.

¶ 54. The judge's own personal experiences about whether the evidence is reliable invades the province of the jury. The jury also has personal experiences and is capable of making a determination as to the reliability of profile evidence.

(3)

¶ 55. The third reason is like the second. The reliability of the evidence is a question for the jury, not the judge.

(4)

¶ 56. The fourth reason proffered by the circuit court is that profile evidence will obscure the real issue in the case, namely, the credibility of the accusers and the defendant. On the contrary, this evidence attacks the credibility of the accusers and supports the credibility of the defendant. "[T]he expert's testimony in [Richard A.E's] case was admissible because it would have assisted the jury in determining whether Richard committed the charged offense by providing expert opinion on the likelihood that Richard committed the crime in light of his psychological profile." The credibility of both the accusers and the defendant is a question for the jury.

(5), (6), and (8)

¶ 57. The fifth, sixth, and eighth reasons are essentially the same: that the proffered evidence would be a waste of time and might confuse the jury. It is true that introducing profile evidence would require additional time and would require thoughtful evaluation by the jury. Nevertheless, the fact that introducing such evidence might require additional time is not a sufficient reason to exclude it.

¶ 58. The test under Wis. Stat. § 904.03 is whether the probative value of the evidence is substantially outweighed by "considerations of undue delay, waste of time, or needless presentation of cumulative evidence." The circuit court did not evaluate the defendant's need for the Richard A.P. evidence against the amount of time required to introduce such evidence.

¶ 59. The circuit court accepted and the majority opinion accepts without question the State's argument that introducing such evidence would add to the length of the trial. While it is true that defense counsel initially thought that the introduction of the expert testimony would take some time, he also argued that the trial could be substantially shortened over the time consumed by the offer-of-proof hearing. Also, had the circuit court admitted the proffered evidence but later concluded that it was needlessly cumulative or unduly long, it could have limited the testimony at that point.

¶ 60. Furthermore, these arguments were expressly rejected by this court in Davis when the court remarked as follows:

The State also asserts that such expert testimony wastes the jury's time and may mislead the jury into thinking that reasonable doubt is present because the defendant lacks the character traits of a sexual offender. However, the fact that the defendant may not possess the relevant character traits of a sexual offender will not necessarily lead to an impermissible inference of reasonable doubt.

Other actions by the circuit court, such as giving limiting instructions or excluding evidence when appropriate, will prevent juries from reaching impermissible inferences in specific cases.

¶ 61. The circuit court did not carefully scrutinize the evidence. The circuit court recited some of the "magic" words but did not demonstrate a thought process sufficient to support the permissible exercise of discretion.

(7)

¶ 62. Finally, the seventh factor, expressing the circuit court's concern that introduction of such evidence might lead to a "battle of the experts" has been rejected. This problem is present in every case involving expert testimony. The court has not found this reasoning persuasive.

‡ * * *

¶ 63. I cannot conclude, as the majority opinion does, that in spite of the circuit court's incorrect understanding of the law and the limited rationale, the circuit court nevertheless properly exercised its discretion.

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

        State v. Walters, 2003 WI App 24, 260 Wis. 2d 210, 659 N.W.2d 151 (reversing a decision of the circuit court for Walworth County, James L. Carlson, Judge).

        State v. Richard A.P., 223 Wis. 2d 777, 795, 589 N.W.2d 674 (Ct. App. 1998).

       All statutory references are to the 1999-2000 version of the Wisconsin Statutes unless otherwise noted.

       Dr. Underwager's expert testimony concerned interviewing techniques used to obtain information from the two victims. The court of appeals affirmed the circuit court's decision to exclude his testimony, and Walters does not challenge that decision in this case.

       At the pretrial hearing, defense counsel challenged Judge Carlson's statement that he had heard the testimony of the expert witnesses in this case. Judge Carlson later clarified that he had heard their testimony in a previous, unrelated case. He also stated on the record that he had reviewed the transcripts of the pretrial hearings in the present case.

       Wisconsin Stat. § 907.02 provides:
      907.02 Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, expertise, training, or education, may testily thereto in the form of an opinion or otherwise.

       Wisconsin Stat. § 904.04(l)(a) provides:
      (1) CHARACTER EVIDENCE GENERALLY. Evidence of a person's character or a trait of the person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
      (a) Character of accused. Evidence of a pertinent trait of the accused's character offered hy an accused, or by the prosecution to rehut the same.

       Wisconsin Stat. § 904.03 provides:
      Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

       Although the State acknowledges that State v. Davis, 2002 WI 75, 254 Wis. 2d 1, 645 N.W.2d 913, applies to this case, it asserts that the defendant's proffered testimony did not reach the level of the testimony at issue in Richard A.R We need not address whether Walters's expert testimony met the technical requirements of Richard A.R because both sides agree in this case that the testimony was relevant.

       The seven psychological evaluations performed on the defendant were the Minnesota Multiphasic Personality Inventory - 2, the California Psychological Inventory (CPI), Millón Clinical Multiaxial Inventory - III, Shipley Institute of Living Scale, Adjective Checklist, Biographical Data Sheet, and Hare Psychopathy checklist.

       Majority op., ¶ 2. Although the State latches onto the court of appeals' use of the word "compels," State v. Walters, 2003 WI App 24, ¶ 17, 260 Wis. 2d 210, 659 N.W.2d 151, the decision of the court of appeals carefully and frequently recognizes that the admission of evidence is a discretionary decision for the circuit court. See Walters, 260 Wis. 2d 210, ¶¶ 14, 19, 21.

        Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981).

        Long v. Long, 196 Wis. 2d 691, 695, 539 N.W.2d 462 (Ct. App. 1995). See also State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 541, 363 N.W.2d 419 (1985); Shuput v. Lauer, 109 Wis. 2d 164, 177-78, 325 N.W.2d 321 (1982).

        State v. Delgado, 223 Wis. 2d 270, 281, 588 N.W.2d 1 (1999).

         State v. Hutnik 39 Wis. 2d 754, 763, 159 N.W.2d 733 (1968); see also In re Settlement for Personal Injuries of Konicki 186 Wis. 2d 140, 150, 519 N.W.2d 723 (Ct. App. 1994) ("[A] trial court erroneously exercises its discretion when its decision is based on a misapplication or erroneous view of the law.").

       Transcript of proceedings held before the Honorable James L. Carlson, Circuit Court, Branch 2, on Nov. 8, 2000, at 9-10 (No. 98-CF-390).

       Majority op., ¶¶ 34-35.

        State v. Richard A.P., 223 Wis. 2d 777, 792-93, 589 N.W.2d 674 (Ct. App. 1998); State v. Davis, 2002 WI 75, ¶ 19, 254 Wis. 2d 1, 645 N.W.2d 913.

        Davis, 254 Wis. 2d 1, ¶ 18.

        Davis, 254 Wis. 2d 1, ¶ 18 (emphasis added). See also Richard A.P., 223 Wis. 2d at 792 (character "testimony may well have assisted the jury in determining whether [the defendant], who maintained that the child had misinterpreted his actions, committed the charged offense"); State v. Pulizzano, 155 Wis. 2d 633, 657-58, 456 N.W.2d 325 (1990) (suggesting that evidence of battering syndrome to demonstrate propensity of defendant to engage in acts consistent with that profile requires testimony of an expert); King v. State, 75 Wis. 2d 26, 38-39, 248 N.W.2d 458 (1977) (testimony of psychologist admissible to demonstrate defendant's character for nonhostility and nonaggressiveness in first-degree murder case).

       John E.B. Myers, Evidence in Child Abuse and Neglect Cases, § 554, at 587 (3d ed. 1997).

        See, e.g., State v. Floray, 715 A.2d 855 (Del. Super. Ct. 1997); Wyatt v. State, 578 So. 2d 811 (Fla. Ct. App. 1991); Jennette v. State, 398 S.E.2d 734 (Ga. Ct. App. 1990); State v. Hulbert, 481 N.W.2d 329 (Iowa 1992).

        See Davis, 254 Wis. 2d 1, ¶¶ 14-15.

       Whether the heterogeneity of sexual offenders makes profile evidence less reliable is a question for the jury. Id., ¶ 17.

        Richard A.P., 223 Wis. 2d at 792.

        Davis, 254 Wis. 2d 1, ¶ 12.

        Kohlhoff v. State , 85 Wis.2d 148, 155, 270 N.W.2d 63 (1978); State v. Hines, 173 Wis. 2d 850, 861, 496 N.W.2d 720 (Ct. App. 1993).

       Majority op., ¶ 40:
      Without this expert testimony, the testimonial portion of Walters's trial lasted one day. In contrast, the offer of proof hearing consumed approximately 165 pages of transcript over three days of hearing. Additionally, the defense counsel initially informed Judge Carlson that he had anticipated the experts' testimony would add another three days to the trial. In sum, the admission of this evidence potentially would have increased significantly the length of trial.

       Defendant-Appellant's Brief at 21.

        Davis, 254 Wis. 2d 1, ¶ 21.

        State v. Mendoza, 80 Wis. 2d 122, 163, 258 N.W.2d 260 (1977).

       "[A] battle between experts is a frequent occurrence in criminal cases where specialized knowledge on a relevant issue is required. In such cases, Richard A.P. evidence may be highly relevant." Davis, 254 Wis. 2d 1, ¶ 20.